Judges: Ripple
Filed: Sep. 08, 2008
Latest Update: Mar. 02, 2020
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 07-2777 D AVID A RREDONDO, Petitioner-Appellant, v. P ETER H UIBREGTSE, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-559—Lynn Adelman, Judge. _ A RGUED M AY 28, 2008—D ECIDED S EPTEMBER 8, 2008 _ Before E ASTERBROOK, Chief Judge, and R IPPLE and W OOD , Circuit Judges. R IPPLE, Circuit Judge. David Arredondo was convicted by a Wisconsin jury of first-
Summary: In the United States Court of Appeals For the Seventh Circuit _ No. 07-2777 D AVID A RREDONDO, Petitioner-Appellant, v. P ETER H UIBREGTSE, Warden, Respondent-Appellee. _ Appeal from the United States District Court for the Eastern District of Wisconsin. No. 05-C-559—Lynn Adelman, Judge. _ A RGUED M AY 28, 2008—D ECIDED S EPTEMBER 8, 2008 _ Before E ASTERBROOK, Chief Judge, and R IPPLE and W OOD , Circuit Judges. R IPPLE, Circuit Judge. David Arredondo was convicted by a Wisconsin jury of first-d..
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In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-2777
D AVID A RREDONDO,
Petitioner-Appellant,
v.
P ETER H UIBREGTSE, Warden,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-559—Lynn Adelman, Judge.
____________
A RGUED M AY 28, 2008—D ECIDED S EPTEMBER 8, 2008
____________
Before E ASTERBROOK, Chief Judge, and R IPPLE and W OOD ,
Circuit Judges.
R IPPLE, Circuit Judge. David Arredondo was convicted
by a Wisconsin jury of first-degree intentional homicide
and second-degree sexual assault. The Wisconsin trial
court sentenced him to life without the possibility of parole
on the homicide charge and twenty years’ consecutive
imprisonment on the sexual assault charge. After ex-
hausting his direct and collateral remedies in state court,
2 No. 07-2777
Mr. Arredondo filed in the district court a petition for a
writ of habeas corpus under 28 U.S.C. § 2254. The district
court denied his petition. Mr. Arredondo timely filed a
notice of appeal and obtained a certificate of appealability.
For the reasons set forth in this opinion, we affirm the
judgment of the district court.
I
BACKGROUND
A.
On May 8, 1997, Desiree Klamann’s naked body was
found wrapped in a comforter in a garbage dumpster.
Klamann was last seen alive, in the company of Mr.
Arredondo, on May 4, 1997. The police discovered Mr.
Arredondo’s semen on the comforter. The police searched
the apartment of Thomas Garza, where Mr. Arredondo
had stayed with some frequency. They discovered that
someone recently had painted the lower half of the walls
of Mr. Arredondo’s bedroom, but the police nevertheless
discovered blood, later determined to be Klamann’s, on
one of the moldings.
Thereafter, Mr. Arredondo was charged with the
murder and sexual assault of Klamann, and he pleaded
not guilty. At trial, the State called several witnesses,
including Thomas Garza. Garza testified that, on May 4,
1997, he returned to his apartment at 9:30 or 9:45 p.m.
While Garza was in the kitchen, he observed Mr.
Arredondo run naked from his bedroom to the bathroom.
No. 07-2777 3
Garza asked Mr. Arredondo what was going on, and Mr.
Arredondo responded that he had to go to the bathroom
and could not wait. Afterwards, both Mr. Arredondo and
Garza went to their respective bedrooms. Garza was
watching television, and he fell asleep. He testified that
he heard a woman’s voice while he was sleeping, but he
could not be sure whether the voice had come from
Mr. Arredondo’s bedroom because the television had
remained on.
The State also called as a witness Kurt Moederndorfer,
Mr. Arredondo’s former cellmate at the Milwaukee
County Jail. Moederndorfer testified that Mr. Arredondo
had told him about the Klamann murder. According to
Moederndorfer, Mr. Arredondo met a woman at the Cinco
de Mayo festival, and she and Mr. Arredondo spent the
day drinking together. Moederndorfer testified that Mr.
Arredondo had told him that he had convinced the
woman to go home with him, took her into his bedroom
and made sexual advances toward her. When the woman
resisted, Mr. Arredondo told Moederndorfer that he
(Mr. Arredondo) had grabbed her by the throat, choked her
and forced her to have sexual intercourse with him.
Moederndorfer testified that he had asked Mr. Arredondo
whether the police had any evidence of the crime, and
Mr. Arredondo replied that he had painted the walls
and disposed of the mattress and an old rug in a dumpster.
After the State rested, the trial court excused the jury
and engaged in the following colloquy with Mr. Arredondo
and his counsel regarding whether Mr. Arredondo
would testify. We set forth that colloquy in its entirety
because it is so central to our decision:
4 No. 07-2777
THE COURT: . . . . It is my understanding the
defense has two very brief wit-
nesses to present before lunch and
then the defendant will at that
time make a decision about testify-
ing. Is that right?
MR. SCHATZ:1 That’s correct.
THE COURT: Has any preliminary decision been
made in that regard?
MR. WILLIAMS:2 Let’s make the record before lunch
if we can.
THE COURT: I’d like to so we know what we’re
doing over the lunch break, so the
decision should be made before
the lunch break. It is my under-
standing the defendant has
elected not to testify although
wants [sic] to reserve the right to
change after these two witnesses
testify. Is that right?
MR. SCHATZ: The defendant’s elected not to tes-
tify, Your Honor.
THE COURT: And that’s a definite decision?
MR. SCHATZ: That’s a definite decision. I would
say 99% definite. I don’t expect
1
Mr. Arredondo’s counsel.
2
The prosecutor.
No. 07-2777 5
anything from these two witnesses
that would change his mind, but
you never know.
THE COURT: We can address it again after the
witnesses testify, but let me con-
firm with you, Mr. Schatz, that
you have discussed the defen-
dant’s options with him in that
regard.
MR. SCHATZ: I have, Your Honor.
R.15 at 2-3. The court then questioned Mr. Arredondo
as follows:
THE COURT: And Mr. Arredondo, I need to con-
firm with you that you have dis-
cussed your decision regarding
testifying in this case with your
counsel and the options that you
have in that regard. You have done
so?
DEFENDANT: Yes, Your Honor.
THE COURT: You understand that you have an
absolute constitutional right not
to testify in this case and if you
decide, as evidently you have de-
cided, not to testify in this case, the
jury will be instructed that they
cannot hold that against you. They
cannot draw any conclusions
from that. Do you understand?
6 No. 07-2777
DEFENDANT: Yes, Your Honor.
THE COURT: D o you also understan d, M r.
Arredondo, that you have a corre-
sponding right to testify and take
the witness stand in your own de-
fense. If you do that, you would
be subjecting yourself to cross-
examination. Do you recognize
that as well?
DEFENDANT: Yes, Your Honor.
THE COURT: Knowing that you have these cor-
responding rights and how they
apply here and in consultation
with your counsel, you have made
the decision not to testify in this
case, correct?
DEFENDANT: Yes, Your Honor.
THE COURT: And although that decision has
been made in consultation with
your counsel, it is nonetheless,
your own decision; is that correct?
DEFENDANT: Yes, Your Honor.
THE COURT: All right. Let’s proceed.
R.15 at 3-4.
Mr. Arredondo then presented two witnesses after
which the defense rested. The court made no further
inquiry regarding whether Mr. Arredondo would testify.
The prosecutor indicated that the State would not
No. 07-2777 7
present rebuttal testimony. The court then advised the
jury that the evidentiary phase of the trial was complete
and recessed for lunch. Immediately after lunch, however,
Mr. Arredondo advised the court that he wished to testify:
THE COURT: All right. The record should reflect
we are now back on the record. . . .
DEFENDANT: Your Honor, excuse me, Your
Honor. I did not understand
very well about when you were
asking me the questions. My attor-
ney advised me to say yes, but
I didn’t understand the question
that I was yes-ing to when we
ended about an hour or two hours
ago.
....
THE COURT: You’re changing your mind about
your decision to testify?
DEFENDANT: Yes, ma’am.
....
DEFENDANT: Yes, I did not understand. When
you were asking me about the
rights or whatever about testify-
ing—
THE COURT: Right.
DEFENDANT: I did not understand. And I need
to take that back, the yes answer
that I gave you and tell you no,
8 No. 07-2777
I do need to testify because the
only one that can defend David
A rredondo toda y is D av id
Arredondo.
THE COURT: Have you talked to your attorney
about this?
DEFENDANT: I told him and he said no, I could
not, but we had an argument ear-
lier this afternoon when I was tell-
ing him about it, and he said he
didn’t give a shit what I did at this
point, and I took it as he was not
letting me understand what he
was coming from.
THE COURT: All right. Mr. Schatz.
MR. SCHATZ: Your Honor, that’s entirely false.
Since the end of court and, of
course, I can’t discuss whatever
Mr. Arredondo and I discussed in
confidence. We have discussed
quite a bit about whether he would
take the stand and testify or not.
I told him what the ramifications
would be. We discussed it quite a
bit this morning in closed quarters
even during the trial. All I can
say is Mr. Arredondo made the
decision not to testify. I concur
in that decision—
No. 07-2777 9
DEFENDANT: With his help, Your Honor. He
told me you’re not testifying and
I was confused. I did not know—
I did not understand, ma’am.
THE COURT: I don’t want to get involved or in
the middle of a dispute between
attorney and client, but I need to
make a record of what has tran-
spired. Evidently you have
changed your mind at this point
in your decision not to testify in
this case. Evidently that’s also
against advice of counsel appar-
ently, and I don’t know if the
state has a position on that.
MR. WILLIAMS: They rested.
THE COURT: True.
MR. SCHATZ: That’s right. And all if [sic] can say
is, Your Honor, I rendered my ad-
vice, my professional advice to
Mr. Arredondo not to testify. This
is not something that just came
about this morning. This is some-
thing which has been—which we
have discussed—which we have
discussed throughout my repre-
sentation with him and through-
out the day and throughout yes-
terday.
10 No. 07-2777
Regarding Mr. Arredondo not un-
derstanding or that he never saw
me again after, your bailiffs can
certainly—your bailiffs can cer-
tainly attest to the fact that after
we broke this morning, I was in the
back with Mr. Arredondo while
he was in the bullpen. We met
back there this morning after we
broke for maybe 20 minutes, half
an hour. I fully explained every-
thing to him at that point as far as
whatever questions he may have.
I believe I’ve answered all the
questions.
Regarding lesser included offenses,
as was stated earlier, I don’t be-
lieve there is anything in the
record to justify—
THE COURT: I don’t think that’s the issue at this
point.
DEFENDANT: I did not understand—
MR. WILLIAMS: What maybe I would ask is we take
a break and Mr. Schatz and Mr.
Arredondo go back and see if they
can resolve their difference.
THE COURT: That’s what I would suggest. Why
don’t you have a brief conversation
in the bullpen about this issue, and
No. 07-2777 11
counsel and I will talk about the
change in this turn of events. We’ll
be in recess.
(Long recess)
THE COURT: All right. We’re back on the re-
cord. . . . I need to confirm with
you, Mr. Arredondo, whether it is
still your intention to attempt
to revoke your previously made
decision to not testify in this case.
Is that still your intention at this
time?
DEFENDANT: It is my intention to testify, yes,
Your Honor.
THE COURT: All right. And you discussed this
further during this recess with
your counsel, Mr. Schatz; is that
correct?
DEFENDANT: Yes, Your Honor.
THE COURT: All right. Mr. Schatz, is that cor-
rect, you discussed that with your
client?
MR. SCHATZ: Yes, it is, Your Honor. He did ex-
press his desire to me to essentially
reopen the defense case and be
allowed to testify.
THE COURT: All right. I need to inquire about
certain things, first of all. I have
12 No. 07-2777
during this recess attempted to
find some Wisconsin case law on
this situation, and I have not been
successful in doing so. I haven’t
found any case law that governs an
attempt to revoke a previously
made decision not to testify, and
I don’t believe there is any Wis-
consin case law on that point based
on my limited and brief search
over the course of the last 45 min-
utes or so. In any event, it seems to
me to be controlled by a couple
different factors.
Number one, whether the defen-
dant’s previously announced deci-
sion was knowing and voluntary
and was a knowing and voluntary
waiver of the constitutional right
to testify.
And number two, what prejudice
there would be to the state and
the system if allowing the defen-
dant—if the court allowed the de-
fendant to revoke that decision. So
it depends on those various factors.
I have also had the court reporter
transcribe the discussion and collo-
quy on the record that I had with
the defendant concerning his right
No. 07-2777 13
to testify or not to testify in this
case, and I have also taken the lib-
erty of consulting the previous
transcript of the trial in the Kim
Strandberg episode at which the
defendant elected to testify, and
I had practically the same discus-
sion and colloquy on the record
with the defendant at that time.
During the course of this trial
when I did elicit from the defen-
dant his decision in this regard, he
made an unequivocal decision
that it was his decision not to tes-
tify in this case and that he made
it in consultation with counsel, but
it was, nonetheless, his decision,
and he understood what his op-
tions were in that regard. There
was a qualifier put on that by
counsel having to do with this be-
ing a 99 percent decision, that he
might change his mind after the
two defense witnesses testify, but
that wasn’t anticipated.
The record should reflect that
I observed a conversation between
attorney and client after the two
defense witnesses testified which
appeared to be a conversation con-
14 No. 07-2777
cerning the defendant’s previously
made decision not to testify and
whether that was still the case, and
then the record reflects that the
defense rested. I need to confirm,
Mr. Schatz, that that is indeed
what was occurring during that
very brief off the record consulta-
tion between you and Mr.
Arredondo before you rested your
case. Is that correct?
MR. SCHATZ: Before I answer that, Your Honor,
the brie f c on v e rsa t io n M r.
Arredondo and I did have was still
governed at that point by attor-
ney-client privilege, so I can, if that
privilege, if that privilege for that
very limited perhaps 15, 20 second
discussion or whatever it was is
waived, I can state for the record
what it was about.
THE COURT: Mr. Arredondo? W ell, I would
construe the present situation to
constitute a per se waiver of the
attorney-client privilege for this
limited purpose. The defendant is
maintaining at this time that he
didn’t know what he was doing
when he waived his right to testify
in this case, and so in that sense we
No. 07-2777 15
are in almost a postconviction
type posture in which a waiver
of the attorney-client privilege
for the limited purpose of inquir-
ing into what transpired between
attorney and client is deemed
made by the defendant, so that is
the situation I will find that we are
in and ask you to confirm or deny,
whichever is the case, that that is
indeed what was discussed.
MR. SCHATZ: I will consider that to be a court
order. Yes, after the last defense
witness testified, and I believe that
was Mr. Erwine, and he left the
witness stand just before resting,
I did make a final confirmation
with Mr. Arredondo. I asked him
this is the last chance, are you sure
you do not want to testify. He said,
“I don’t want to testify.” At that
point we rested.
THE COURT: A ll r ig h t . W it h t h a t s up ple-
mentation of the record, I need to
know, Mr. Williams, what your
situation is as far as prejudice to
the state by the defense attempt
or the defendant’s attempt to re-
open his case and take the witness
stand in his own defense in this
case.
16 No. 07-2777
MR. WILLIAMS: The witnesses were released, and
whether they can be relocated or
not, I believe they probably could.
I don’t know what difficulty there
would be. I know we’ve relocated
some of the witnesses, but that’s
basically the posture we’re in. We
released the witnesses at noon.
THE COURT: So at this point not all of the poten-
tial rebuttal witnesses have been
relocated.
MR. WILLIAMS: All of them have not been relo-
cated at this point.
THE COURT: All right. And it was my under-
standing that there would be up-
wards of 10, perhaps as many as
15 rebuttal witnesses.
MR. WILLIAMS: The possibility exists of about 10
rebuttal witnesses.
THE COURT: All right. It also should be noted
that we have a sequestered jury in
this case which now has been kept
waiting in the jury room for the
totality of the afternoon so for al-
most three and a half hours while
these issues were discussed and
while we were preparing jury in-
structions to proceed to the final
phase of the case, so that’s also a
significant factor.
No. 07-2777 17
Based on my review of the tran-
script of this proceeding and what
the defendant indicated to me in a
very unequivocal fashion was his
decision and his firm decision not
to testify in this case made in con-
sultation with counsel and with
the full awareness of all his options
in that regard, and based on my
review of the transcript of his prior
trial where he made a different
sort of decision but based on simi-
lar consultation with counsel and a
similar colloquy with me concern-
ing that issue, and based on what
has just been made as a sup-
plementation of the record by Mr.
Schatz as to what transpired be-
tween attorney and client before
the defense finally rested its case in
this matter, I will find the defen-
dant made a knowing and volun-
tary and irrevocable decision not to
testify in this case, and his request
to reopen his case in order to take
the witness stand and testify in his
own defense is denied. This is also
based on the substantial prejudice
that would exist to the state and
the system and the sequestered
jury in order to reopen the case at
18 No. 07-2777
this time. I think the defendant
knew full well what he was do-
ing—
DEFENDANT: You’re wrong, Your Honor. I did
not know.
THE COURT: His decision to testify or not to
testify in this case, that decision is
not capable of being revoked, so
your request, Mr. Arredondo, in
this regard is denied. It is, how-
ever, too late in the day to proceed
with closing arguments, so we will
recess until 9 o’clock tomorrow
morning at which time we will
proceed with instructions and
closings.
MR. SCHATZ: One thing for the record, Your
Honor, before we close.
DEFENDANT: Ineffective counsel.
MR. SCHATZ: My client did have one concern,
and just for the record, all cham-
bers conferences between Mr. Wil-
liams, myself, and Your Honor
have been doing nothing more
than discussing issues of law, jury
instructions and the like. Do you
concur, Mr. Williams?
MR. WILLIAMS: Yes.
No. 07-2777 19
MR. SCHATZ: And I imagine you concur, Your
Honor.
THE COURT: Yes, we have been spending this
time or I have been spending this
time looking for Wisconsin case
law for guidance on this issue and
weighing the options and the
issue of whether or not the defen-
dant knowingly and voluntarily
made his decision not to testify in
this case and also considering the
prejudice that existed to the state,
and the decision’s been made.
We’ll see you tomorrow morning
at 9 o’clock to proceed with the
final phase of the trial.
MR. WILLIAMS: The only other thing, I think Mr.—
I don’t know if the court would
deem it a waiver for time privi-
leges, but Mr. Schatz I think could
perhaps go through a history of
how he’s advised the defendant
of his right to testify.
THE COURT: We can do that briefly. I don’t
think it’s substantially necessary.
It’s something that may or may not
be litigated at a later date, but if
you wish to make a brief record of
when you’ve discussed this issue
with him.
20 No. 07-2777
MR. SCHATZ: Well, Your Honor, the only thing—
DEFENDANT: Never came and visited me. How
is he gonna—
MR. SCHATZ: Your Honor, in response to Mr.
Arredondo’s statement, there are
certainly records at the Milwaukee
County Jail. People have to show
identification to come in and out.
Attorney visits, the like—
DEFENDANT: Ineffective counsel, that’s what
it is.
MR. SCHATZ: I have absolutely no doubt that if
anybody were to check the jail
records, they will find a record of
every visit I have made to Mr.
Arredondo. I have received collect
telephone calls at my phone from
Mr. Arredondo. We have dis-
cussed this entire week regarding
his decision of whether to testify,
whether not to testify. I have of-
fered my professional opinion that
I don’t believe he should. I have
advised him—
DEFENDANT: Told me not to today, not to testify.
I wanted to testify. He told me not
to testify. He says no, they’re
gonna find you guilty, and I don’t
want to swear in the courtroom,
No. 07-2777 21
but that’s what he said to me to-
day, Your Honor. I wanted to tes-
tify and tell the Klamann family
and the jury that I’m not guilty of
this. I’m sorry, Your Honor, but
you’re being very unfair denying
it.
THE COURT: Anything else, Mr. Schatz?
MR. SCHATZ: Very briefly. Every time I have
discussed Mr. Arredondo’s deci-
sion to testify as well as options—
DEFENDANT: He lies. Lies. Lies.
MR. SCHATZ: —as well as options any criminal
defendant has, it’s always been
my practice, however, long I have
practiced law, 13 years now, I have
explained to every single client
there are certain decisions which
only you can make in any type of a
criminal trial. I will give you my
advice of what I feel you should
do and tell you why—what I base
my advice upon, but the ultimate
decision is yours, and that’s what
happened in this—
DEFENDANT: Why you got to continue to lie in
front of—
THE COURT: The record’s been made. We’re in
recess until 9 o’clock tomorrow
morning.
22 No. 07-2777
DEFENDANT: Lies. I’m innocent. And I can prove
it to you guys.
R.15 at 4-10.
The next morning, Mr. Arredondo’s counsel stated that
Craig Pradarelli, a private investigator, had joined him
in court:
THE COURT: It’s my understanding that the
reason that he is presently at coun-
sel table is because your [sic] wish
to supplement the record, Mr.
Schatz—
MR. SCHATZ: That’s correct.
THE COURT: —that we made yesterday after-
noon, in particular concerning cer-
tain accusations at the level of pre-
paredness and the amount of time
that was put to the preparation of
this case in particular as it relates
to his decision to testify or not
to testify.
MR. SCHATZ: That’s correct.
THE COURT: Go ahead.
MR. SCHATZ: First, Your Honor, as I stated, Mr.
Pradarelli was approved and ap-
pointed by the state public de-
fender’s office to assist me on this
case.
It’s my understanding that Mr.
Pradarelli met with Mr. Arredondo
No. 07-2777 23
twice during the preparation of
this case. I also met with him
twice during the preparation. It’s
my understanding of course that
Mr. Arredondo gave whatever
certain inform ation to M r.
Pradarelli which he did follow up
on; that Mr. Pradarelli gave me all
the results of his investigation
and his follow-up and they were
factored into the trial preparation
and assistance in this case.
I would also state for the record
that besides meeting with Mr.
Arredondo twice, special visits in
the jail, I also met with him when-
ever we were here in court; I be-
lieve there were three court ap-
pearances prior to trial here in
court. I’ve also spoken to him via
collect telephone calls both in my
office and at my home, I don’t
know the exact number of times; a
fair estimate, I would say about a
dozen if not more. Mr. Arredondo
and I have discussed in detail over
the course of preparing for this
trial in detail many, many times
about his right to testify, his right
not to testify. Specifically more
this week during the trial, we have
24 No. 07-2777
discussed every day his right to
testify.
I believe that based on—Well,
based on information that Mr. Wil-
liams offered to me earlier in the
week, which was in fact true, cer-
tain evidence that he may or may
not use and then he told me he
made a decision not to use,
we’ve—I’ve discussed with Mr.
Arredondo and I believe it was as
early as Tuesday or Wednesday
this week that the decision was
made not to testify. Even though
every day I still discussed with
him his right to testify, that deci-
sion did not change since Tuesday
or Wednesday of this week, and as
stated yesterday on the record at
the end of the day just before the
defense rested, you did note that
Mr. Arredondo and I had a brief
conference, a brief, a brief confer-
ence here at counsel table. I con-
firmed with him, I said “Essen-
tially this is your last chance. Do
your [sic] or do you not want to
testify.” He indicated he did not
want to testify—
DEFENDANT: That’s a lie.
No. 07-2777 25
MR. SCHATZ: —then we rested.
....
THE COURT: Mr. Williams, any further record
you wish to make on this?
MR. WILLIAMS: No.
THE COURT: I think the record should be very
clear, to the extent it wasn’t made
clear yesterday, that I regard Mr.
Arredondo’s conduct yesterday
afternoon on this issue of whether
to testify or not to testify simply
another attempt to manipulate
rather than any change of heart
or any misunderstanding.
There is no support for your claim,
Mr. Arredondo, that you misun-
derstood, and there is no support
for your claim that you were
doing what your attorney told you
and not what you wanted to do.
The record fully supports my con-
clusions in this regard. You told
me directly and in an unequivocal
fashion that you did not wish to
testify.
DEFENDANT: Let me prove my opinions to—
THE COURT: Mr. Arredondo, you may not inter-
rupt me nor anyone else in this
26 No. 07-2777
courtroom or I will have to eject
you from the courtroom if you
continue with this behavior. Is
that clear?
DEFENDANT: Yes, Your Honor.
THE COURT: There was no honest change of
heart in this case. This is an at-
tempt to manipulate the justice
system.
DEFENDANT: No.
THE COURT: I’m not through. If you interrupt
again, I will eject you from the
courtroom.
The defendant was fully advised
of his rights in this regard both by
me and by his counsel. He was
advised of the same rights in
the prior trial involving Kim
Strandberg who testified in this
case. He represented in the prior
trial a full understanding of his
rights to testify or not to testify
in that matter. His attorney repre-
sented on the record in that matter
that he fully understood his rights
and options in that regard, and
I am fully satisfied that the defen-
dant understands what the situa-
tion was, understood what the
No. 07-2777 27
situation was, made an informed,
knowing and voluntary decision
in that regard, which under the
circumstance can lead only to the
conclusion that this is theatrics
and that this is playing for the
cameras, perhaps, and that this is a
gross attempt to manipulate the
system and I cannot allow it under
the circumstances. This is not sim-
ply an honest change of heart un-
der any stretch of the imagination.
So the record should be very clear
on that point for any future appel-
late purposes.
Anything anyone else wishes to
add?
MR. WILLIAMS: No, Judge.
MR. SCHATZ: No, Your Honor.
R.15 at 10-13.
A jury found Mr. Arredondo guilty of first-degree
intentional homicide and second-degree sexual assault.
The Wisconsin trial court sentenced him to life without
the possibility of parole on the homicide charge and
twenty years’ consecutive imprisonment on the sexual
assault charge.
28 No. 07-2777
B.
Mr. Arredondo filed this action under 28 U.S.C. § 2254.
As relevant here, his petition claims that he was deprived
of his constitutional right to testify and that his trial
counsel was ineffective.
The district court determined that the Court of
Appeals of Wisconsin had not acted contrary to, or unrea-
sonably applied, clearly established Supreme Court
precedent in holding that Mr. Arredondo had waived
his right to testify. The district court then determined
that the Wisconsin appellate court also had not unreason-
ably applied clearly established federal law, Rock v.
Arkansas, 483 U.S. 44 (1987), in holding that the trial court
had not erred when it refused to permit Mr. Arredondo
to retract his waiver. It then determined that, even if
the Wisconsin appellate court had erred, the error was
harmless.
Mr. Arredondo requested a certificate of appealability
on all of the issues that he had raised before the district
court. The district court, however, determined that only
two issues satisfied 28 U.S.C. § 2253(c). First, whether
the Court of Appeals of Wisconsin unreasonably applied
Rock when it found that Mr. Arredondo’s right to testify
had not been violated when the trial court declined
his request to reopen the case so that he could testify.
Second, whether such error is subject to harmless error
analysis.
Mr. Arredondo timely appealed to this court.
No. 07-2777 29
II
DISCUSSION
Mr. Arredondo raises three issues on appeal. First, he
contends that the Wisconsin appellate court unrea-
sonably applied clearly established Supreme Court prece-
dent when it determined that he had knowingly and
voluntarily waived his right to testify. Second, Mr.
Arredondo contends that the appellate court unrea-
sonably applied Rock when it refused to allow him to
retract that waiver. Third, Mr. Arredondo claims that
the district court erred in applying the harmless error
doctrine to a violation of a defendant’s right to testify.
A.
The district court did not grant Mr. Arredondo a certifi-
cate of appealability on the issue of whether the Wisconsin
appellate court’s decision that Mr. Arredondo had know-
ingly and voluntarily waived his right to testify was
contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. Mr. Arredondo
has briefed the issue, however, and, in doing so, he has
implicitly requested that this court amend the certificate.
See Sylvester v. Hanks, 140 F.3d 713, 715 (7th Cir. 1998).
The standard governing a court’s decision to grant
a certificate of appealability is set forth in 28 U.S.C.
§ 2253(c)(2). A court may grant a certificate if the ap-
plicant makes a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). An applicant
has made a “substantial showing” where “reasonable
30 No. 07-2777
jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different
manner or that the issues presented were ‘adequate to
deserve encouragement to proceed further.’ ” Slack v.
McDaniel,
529 U.S. 473, 484 (2000) (quoting Barefoot v.
Estelle,
463 U.S. 880, 893 & n.4 (1983)). We agree with
the district court that Mr. Arredondo has not met this
standard with respect to his claim that his waiver of the
right to testify was not knowing and voluntary.
As the district court pointed out, the Supreme Court of
the United States never has held that a trial court must
engage in a personal colloquy with a defendant to deter-
mine whether he wishes to testify or that a waiver of the
right to testify must occur formally on the record. Indeed,
in United States v. Brimberry,
961 F.2d 1286 (7th Cir. 1992),
we held that “courts have no affirmative duty to deter-
mine whether a defendant’s silence is the result of a
knowing and voluntary decision not to testify.”
Id. at 1289-
90 (quoting United States v. Thompson,
944 F.2d 1331, 1345
(7th Cir. 1991) (collecting cases)). Here, the trial court,
acting within its discretion, did engage Mr. Arredondo in
a colloquy to determine whether he voluntarily and
knowingly was waiving his right to testify. After Mr.
Arredondo satisfied the trial court that his waiver was
entered voluntarily and knowingly, no clearly estab-
lished Supreme Court precedent required the court to
engage in a second colloquy immediately after the two
last witnesses finished testifying and before the defense
rested. Therefore, Mr. Arredondo cannot show that
reasonable jurists could debate whether the Wisconsin
courts acted “contrary to” clearly established Supreme
No. 07-2777 31
Court precedent by not undertaking a second personal
colloquy with him to determine whether he wished to
waive his right to testify. See 28 U.S.C. § 2254(d)(1).
Mr. Arredondo nevertheless contends that the Wis-
consin courts unreasonably applied Brady v. United States,
397 U.S. 742, 748 (1970), because the record establishes
that he did not knowingly and voluntarily waive his right
to testify. In support of this contention, Mr. Arredondo
notes that, during the colloquy with the Wisconsin trial
court, his counsel, Mr. Schatz, explained to the trial court
that, although Mr. Arredondo’s decision not to testify
was nearly definite, there was a possibility that he would
change his mind after the defense presented its two
final witnesses; the trial court then stated that it would
revisit the issue. From this colloquy, Mr. Arredondo
explains, it is evident that he believed that any waiver
of his right was conditional. Because the trial court never
revisited the issue, Mr. Arredondo asserts that he did not
know that his waiver, prior to the presentation of the
last two witnesses, was final.
Mr. Arredondo’s contention that he believed that any
waiver of his right to testify was conditional is contra-
dicted by the statements made by Mr. Arredondo’s
counsel to the trial court. Specifically, the trial court
noted on the record that it had “observed a conversation
between attorney and client after the two defense wit-
nesses testified which appeared to be a conversation
concerning the defendant’s previously made decision
not to testify and whether that was still the case, and then
the record reflects that the defense rested.” R.15 at 7. After
32 No. 07-2777
the trial court determined that it would consider
Mr. Arredondo’s position as an implicit waiver of the
attorney-client relationship with respect to this conversa-
tion, Mr. Schatz confirmed: “[A]fter the last defense
witness testified, and I believe that was Mr. Erwine, and
he left the witness stand just before resting, I did make
a final confirmation with Mr. Arredondo. I asked him
this is the last chance, are you sure you do not want to
testify. He said, ‘I don’t want to testify.’ At that point [the
defense] rested.”
Id. The trial court’s observations, com-
bined with his counsel’s statements, undermine Mr.
Arredondo’s claim that he did not knowingly and volun-
tarily waive his right to testify or that he understood
that waiver to be conditional. Indeed, Mr. Schatz’s state-
ments on the record indicate that he explained to Mr.
Arredondo that this was Mr. Arredondo’s “last chance”
and asked whether Mr. Arredondo was “sure” that he did
not want to testify.
Id. Given this explanation from
counsel, which the Wisconsin trial court credited, we
cannot conclude that “reasonable jurists could debate
whether” Mr. Arredondo’s petition on this issue should
have been resolved in a different manner.
Slack, 529 U.S.
at 484.
Mr. Arredondo also contends that “[g]iven his strong
disagreements with trial counsel as represented in the
record regarding his right to testify, Petitioner had to
count on addressing his right to testify with the court
as promised rather than addressing it through his attor-
ney.” Appellant’s Br. at 27. Prior to the defense resting,
however, Mr. Arredondo never voiced to the trial court
any disagreement with counsel regarding his right to
No. 07-2777 33
testify. In fact, prior to the recess, the trial court engaged
in a colloquy with Mr. Arredondo. The court informed
him that he had a “right to testify and take the witness
stand in [his] own defense” and asked him whether
the decision not to testify was his own decision despite
the fact that it had been made in consultation with coun-
sel. R.15 at 3. Mr. Arredondo responded that the decision
not to testify was his own and did not inform the trial court
of any conflict with his trial counsel regarding that deci-
sion. Therefore, prior to the recess, the Wisconsin trial
court had no reason to know that there was a disagreement
between Mr. Arredondo and his trial counsel regarding
Mr. Arredondo’s right to testify.
Moreover, although the trial court was made aware of a
disagreement after the recess, Mr. Arredondo’s con-
tention ultimately is reduced to an issue of credibility. The
trial court’s factual findings and the trial transcript
itself undermine Mr. Arredondo’s contention that he
believed that his waiver of the right to testify had been
conditional. The Wisconsin trial court determined that
Mr. Arredondo was attempting to manipulate the proceed-
ing rather than laboring under a misunderstanding of his
right to testify, and the appellate court affirmed the trial
court’s findings. It is evident from the transcript that this
is not a case like Ward v. Sterns,
334 F.3d 696, 706-08 (7th
Cir. 2003), in which the defendant, who supposedly had
waived his right to testify, had mental deficiencies.
Mr. Arredondo comes across as competent, and his numer-
ous verbal exchanges with the trial court indicate that
he has a fair command of the English language. Mr.
Arredondo, in short, cannot rebut the state court’s factual
34 No. 07-2777
finding that he knowingly and voluntarily waived his
right to testify. See 28 U.S.C. § 2254(e)(1) (state findings of
fact are presumed correct and must be rebutted by
clear and convincing evidence).
Mr. Arredondo has not established that reasonable
jurists could debate whether the Wisconsin appellate
court acted contrary to, or unreasonably applied, clearly
established Supreme Court precedent when it deter-
mined that the waiver of his right to testify had been
knowing and voluntary. Accordingly, we shall not
enlarge the certificate of appealability.
B.
1.
We review de novo the district court’s denial of a habeas
petition. Daniels v. Knight, 476 F.3d 426, 433 (7th Cir.
2007). Under the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), we may grant habeas relief only
if the state court’s “decision was contrary to, or involved
an unreasonable application of, Supreme Court precedent,”
id., or “resulted in a decision that was based on an unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding,” 28 U.S.C.
§ 2254(d)(2). To grant habeas relief under the “contrary to”
clause, we must find that the state court reached a
result opposite to that reached by the Supreme Court on
materially indistinguishable facts. See Williams v. Taylor,
529 U.S. 362, 405 (2000); Jackson v. Miller,
260 F.3d 769,
774 (7th Cir. 2001). To obtain relief under the “unreason-
No. 07-2777 35
able application” clause, a habeas petitioner must show
that the state court’s decision unreasonably extended a
clearly established Supreme Court precedent to a
context where it should not have applied or unreasonably
refused to extend such precedent to a context where it
should have applied.
Jackson, 260 F.3d at 774. The state
court’s factual findings are presumed correct; this pre-
sumption can be rebutted by clear and convincing evi-
dence. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
537
U.S. 322, 348 (2003); Barrow v. Uchtman,
398 F.3d 597, 603
(7th Cir. 2005). In short, the state court decision must
be “both incorrect and unreasonable.” Washington v.
Smith,
219 F.3d 620, 628 (7th Cir. 2000) (emphasis in
original); see also Terry
Williams, 529 U.S. at 407-08.
2.
Mr. Arredondo submits that the Court of Appeals of
Wisconsin unreasonably applied Rock in holding that the
trial court properly had denied his request to retract the
waiver of his right to testify. According to Mr. Arredondo,
Rock held that “restrictions of a defendant’s right to
testify may not be arbitrary or disproportionate to the
purpose they are designed to serve.” Appellant’s Br. at 29
(quoting Rock, 483 U.S. at 55-56). Thus, Mr. Arredondo
contends, the state court was obliged to ask whether “the
interests served” by restricting Mr. Arredondo’s testi-
mony “justif[ied] the limitation imposed on [his] right to
testify.” Id. (quoting
Rock, 483 U.S. at 55-56). Analogizing
to this court’s decision in Ortega v. O’Leary,
843 F.3d 258
36 No. 07-2777
(7th Cir. 1988), Mr. Arredondo asserts that the state
court’s conclusion was objectively unreasonable.
The State, on the other hand, contends that the Su-
preme Court has not applied Rock to circumstances such as
those presented by Mr. Arredondo’s case. It submits
that the rule that Rock clearly established is that “states
‘may not apply a rule of evidence that permits a witness
to take the stand, but arbitrarily excludes material portions
of [the witness’] testimony.’ ” Appellee’s Br. at 9 (quoting
Rock, 483 U.S. at 55). Given this reach, the State con-
tends that Rock does not control whether or under what
circumstances a court, having found properly that a
criminal defendant waived his right to testify, must
honor a defendant’s wish to retract that waiver. Further-
more, the State submits that, in two recent cases, the
Supreme Court has cautioned against over-reading its
precedent in a habeas context, as Mr. Arredondo seeks
to do here. See Carey v. Musladin,
127 S. Ct. 649 (2006); see
also Wright v. Van Patten,
128 S. Ct. 743 (2008) (per curiam).
In Musladin and Van Patten, the Supreme Court
reversed the judgment of two courts of appeals because
those courts had extended Supreme Court precedent too
far from its original context. In Musladin, the issue was
whether spectators’ conduct in the courtroom had
violated a defendant’s right to a fair trial. The Ninth
Circuit applied the test for state-sponsored courtroom
practices to the spectators’ conduct and concluded that
the defendant’s rights had been violated. The Supreme
Court reversed. It noted that it never had applied the
rule for state-sponsored courtroom practices in the
context of spectator conduct. The Court explained:
No. 07-2777 37
Given the lack of holdings from this Court regarding
the potential prejudicial effect of spectators’ courtroom
conduct of the kind involved here, it cannot be said
that the state court unreasonably applied clearly
established Federal law. No holding of this Court
required the California Court of Appeal to apply the
test [for state-sponsored courtroom practices] to the
spectators’ conduct here. Therefore, the state court’s
decision was not contrary to or an unreasonable
application of clearly established federal law.
Musladin, 127 S. Ct. at 654 (internal quotation marks and
citation omitted) (alteration omitted).
In Van Patten, the Supreme Court had vacated a decision
of this court and remanded in light of Musladin. In the
original, vacated decision, we had applied United States v.
Cronic,
466 U.S. 648 (1984), which created a narrow excep-
tion to Strickland v. Washington 3 that exempted the habeas
petitioner from proving prejudice. One circumstance
warranting treatment under the Cronic exception is
when “counsel [is] totally absent, or prevented from
assisting the accused during a critical stage of the proceed-
ing.” 466 U.S. at 659 & n.25. In the original, vacated deci-
sion, we applied Cronic in a situation where the habeas
petitioner’s lawyer was not physically present at the
plea hearing but had participated by teleconference
nonetheless. After the Supreme Court remanded the case,
we again reached the same result. The Supreme Court
reversed. It explained that “[n]o decision of this Court . . .
3
466 U.S. 668 (1984).
38 No. 07-2777
squarely addresses the issue in this case or clearly estab-
lishes that Cronic should replace Strickland in this novel
factual context.” Van
Patten, 128 S. Ct. at 746 (citation
omitted). The Court further noted that its “precedents
do not clearly hold that counsel’s participation by
speaker phone should be treated as a ‘complete denial of
counsel,’ on par with total absence.”
Id. With these cases
in mind and their guidance as to how far Supreme
Court precedent may be extended for purposes of section
2254(d), we turn to Mr. Arredondo’s contentions.
Mr. Arredondo submits that the Wisconsin appellate
court unreasonably applied clearly established Supreme
Court precedent in affirming the trial court’s decision to
deny him the opportunity to retract his waiver of the right
to testify. Specifically, Mr. Arredondo argues that the
Wisconsin appellate court unreasonably applied the
balancing test that the Supreme Court set forth in Rock. In
Rock, the Supreme Court “granted certiorari to consider
the constitutionality of Arkansas’ per se rule excluding a
criminal defendant’s hypnotically refreshed
testimony.”
483 U.S. at 49. In addressing this question, the Court
recognized that a criminal defendant’s right to testify is
grounded in the Fifth, Sixth and Fourteenth Amend-
ments, and it emphasized that this right is “fundamental.”
Id. at 51-53. The Court’s past precedents, the Justices
explained, indicate that, “[j]ust as a State may not apply
an arbitrary rule of competence to exclude a material
defense witness from taking the stand, it also may not
apply a rule of evidence that permits a witness to take the
stand, but arbitrarily excludes material portions” of the
No. 07-2777 39
witness’s testimony.
Id. at 55. Nevertheless, the Court
explained,
the right to present relevant testimony is not without
limitation. The right may, in appropriate cases, bow
to accommodate other legitimate interests in the
criminal trial process. But restrictions of a defendant’s
right to testify may not be arbitrary or disproportionate
to the purpose they are designed to serve. In applying
its evidentiary rules a State must evaluate whether
the interests served by a rule justify the limitation
imposed on a defendant’s constitutional right to testify.
Id. at 55-56. The Court went on to conclude that Arkansas’
“legitimate interest in barring unreliable evidence does not
extend to per se exclusions that may be reliable in an
individual case.”
Id. at 61.
The Rock balancing test was articulated in a case, and
applied to circumstances, much different from the cir-
cumstances in which Mr. Arredondo seeks to employ it.
Rock involved the constitutionality of a state evidentiary
rule that resulted in an arbitrary or disproportionate
limitation on the defendant’s right to offer testimony in
her own behalf. The issue in Mr. Arredondo’s case, in
contrast, is whether a knowing and voluntary waiver of
the right to testify is subject to retraction and, if so, under
what circumstances that retraction may be exercised.
Certainly, no holding of the Supreme Court required the
Wisconsin appellate court to apply Rock’s balancing test
to these circumstances. See Van
Patten, 128 S. Ct. at 746
(“No decision of this Court . . . squarely addresses the
issue in this case or clearly establishes that Cronic should
40 No. 07-2777
replace Strickland in this novel factual context.” (emphasis
added));
Musladin, 127 S. Ct. at 654 (“No holding of this
Court required the California Court of Appeal to apply the
test [for state-sponsored courtroom practices] to the
spectators’ conduct here.”); see Hill v. Wilson,
519 F.3d 366,
368 (7th Cir. 2008) (“The Supreme Court has held that a
right becomes ‘clearly established’ only when a course
of decisions has established how the Constitution’s
grand generalities apply to a class of situations.”). Conse-
quently, we believe that Rock, assuming that it is ap-
plicable at all—a determination that this case does not
require us to make—is relevant only at a very high degree
of generality. See
Hill, 519 F.3d at 368 (noting that the
habeas petitioner was “invok[ing] principles of very
high generality,” and rejecting the argument that a state
appellate court had “transgress[ed] any right ‘clearly
established’ by” the standard of Musladin and Van Patten).
In addition to the level of generality at which Rock is
applicable under these circumstances, we must bear in
mind the proper scope of section 2254’s reach. The Su-
preme Court has explained that
. . . the range of reasonable judgment can depend in
part on the nature of the relevant rule. If a legal rule is
specific, the range may be narrow. Applications of the
rule may be plainly correct or incorrect. Other rules are
more general, and their meaning must emerge in
application over the course of time. Applying a
general standard to a specific case can demand a
substantial element of judgment. As a result, evaluat-
ing whether a rule application was unreasonable
No. 07-2777 41
requires considering the rule’s specificity. The more
general the rule, the more leeway courts have in
reaching outcomes in case-by-case determinations.
Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). The
Supreme Court in Rock established a methodology for
reviewing restrictions on a defendant’s right to testify,
but that methodology calls for the balancing of very
general interests. As a result, a state court’s application of
the Rock methodology entails a “substantial element of
judgment,” and the state court, therefore, is entitled to
“more leeway . . . in reaching outcomes in case-by-case
determinations.”
Id.
With these principles in mind, we cannot accept Mr.
Arredondo’s contention that the Wisconsin appellate
court’s decision was objectively unreasonable. The appel-
late court affirmed the trial court’s refusal to allow Mr.
Arredondo to retract his waiver because the retraction
would have prejudiced the prosecution and kept the
jury longer than expected. More important, the Wisconsin
appellate court noted that the trial court had concluded
that Mr. Arredondo was engaging in “theatrics” and a
“gross attempt to manipulate the system,” rather than
laboring under a misunderstanding of his right to testify.
S.A. at 69. “[T]he trial court also found,” explained the
Wisconsin appellate court, that Mr. Arredondo had
“voluntarily g[iven] up his right to testimony.”
Id. Finally,
the appellate court explained that “it is clear from
the context of the trial court’s statements that the trial
court did not mean that [Mr.] Arredondo’s decision to
waive his right to testify was irrevocable as a matter of
law.”
Id.
42 No. 07-2777
Given the Supreme Court’s explanation of the proper
sweep of section 2254’s “unreasonable application” clause
and given the high level of generality at which the Rock
methodology is applicable here, the state court’s decision
cannot be characterized as objectively unreasonable. As
the Wisconsin appellate court noted, the trial court had
engaged in an extensive colloquy with Mr. Arredondo
informing him that he had a constitutional “right to testify
and take the witness stand in [his] own defense.” R.15 at 3-
4. The trial court confirmed that Mr. Arredondo himself
had “made the decision not to testify in this case . . .
although that decision has been made in consultation
with . . . counsel.”
Id. After considering the prejudice to
the prosecution and the delay that the retraction would
have caused, in combination with its finding that Mr.
Arredondo’s request to retract his waiver was an
attempt at manipulating the trial process, the trial court
determined that Mr. Arredondo should not be allowed
to retract his waiver. Under these circumstances, we
cannot conclude that the Wisconsin appellate court’s
decision to affirm the trial court’s decision was objec-
tively unreasonable.
Mr. Arredondo attempts to cast doubt on the trial court’s
assessment of the amount of prejudice to the prosecution
that would have resulted had he been allowed to retract
his waiver. He points out, for example, that the pros-
ecutor had informed the court that, although the State’s
rebuttal witnesses had been excused, it already had
located some of these witnesses and that the other wit-
nesses “probably could” be located.
Id. at 8. It bears
emphasis that, to grant Mr. Arredondo habeas relief
No. 07-2777 43
under section 2254(d), it is not sufficient that we would
have weighted differently the various interests in con-
ducting de novo the Rock balancing test or even that the
state appellate court’s determination was wrong; Mr.
Arredondo must establish that the appellate court’s
determination was “objectively unreasonable.” Lamon v.
Boatwright,
467 F.3d 1097, 1100 (7th Cir. 2006).
Furthermore, Mr. Arredondo neither explains nor cites
any authority as to why the trial court should have
limited itself to considering only the prejudice that
would have resulted from the failure to locate rebuttal
witnesses while ignoring the delay, expense and man-
power required to locate these witnesses. In any event,
the prosecutor also informed the trial court that there
were ten rebuttal witnesses who needed to be relocated
and that he did not know how difficult it would be to
locate the witnesses who had not been found yet. Finally,
the trial court determined that Mr. Arredondo’s attempt
to retract his waiver had been made in bad faith, and,
therefore, the state court did not require an exceedingly
weighty justification for denying Mr. Arredondo’s request.4
4
Because this case arises under 28 U.S.C. § 2254(d), we cannot
accept Mr. Arredondo’s invitation to engage in the more
rigorous review that we undertook in Ortega v. O’Leary,
843
F.2d 258 (7th Cir. 1988) (undertaking a plenary review of the
state court’s decision and “[a]ssuming that the trial court
improperly denied [the defendant’s] request to testify”). Ortega
arose prior to Congress’ enactment of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), and, therefore, the
(continued...)
44 No. 07-2777
Mr. Arredondo also criticizes the trial court’s failure
to consider the testimony that he would have offered had
he been allowed to retract his waiver. Mr. Arredondo,
however, made no attempt to inform the court as to
what the substance of his testimony would have been.
Indeed, he only stated, “I do need to testify because the
only one that can defend David Arredondo today is
David Arredondo.” R.15 at 4-10. Moreover, given the trial
court’s finding that Mr. Arredondo had voluntarily and
knowingly waived his right to testify, no clearly estab-
lished Supreme Court precedent required the trial court to
conduct another colloquy with Mr. Arredondo specifically
to determine what his testimony would have been. We
therefore cannot accept Mr. Arredondo’s contention
4
(...continued)
court in Ortega was at liberty to apply a much more searching
standard of review than the one to which AEDPA confines us.
In addition, we note that the state trial court in Ortega had not
engaged in a colloquy with the defendant to determine
whether the defendant had knowingly and voluntarily waived
his right to testify and that it had made no findings of fact on
that issue. Id. at 261 (noting that the “record in this case is
devoid of any colloquy between the judge and Ortega on the
nature of the waiver” and that “trial courts must take steps
to insure that important constitutional rights have been volun-
tarily and intelligently waived”). In this case, by contrast, the
Wisconsin court engaged in a lengthy colloquy on the record
with Mr. Arredondo, informing him of his right to testify and
determining that Mr. Arredondo’s decision not to testify was
his own decision despite being made in consultation with
counsel.
No. 07-2777 45
that the failure of the Wisconsin appellate court to take
into account the substance of the testimony that he
would have offered constituted an unreasonable applica-
tion of clearly established Supreme Court precedent.
Conclusion
Mr. Arredondo has not established that reasonable
jurists could debate whether the Wisconsin appellate
court acted contrary to, or unreasonably applied, clearly
established Supreme Court precedent when it deter-
mined that the waiver of his right to testify had been
knowing and voluntary. Consequently, we shall not
enlarge the certificate of appealability. Moreover, given the
Supreme Court’s explanation of the proper scope of section
2254’s “unreasonable application” clause as well as the
high level of generality at which the Rock methodology is
applicable here, the state court’s decision cannot be
characterized as objectively unreasonable. Accordingly,
the judgment of the district court is affirmed.
A FFIRMED
9-8-08
