633 F.3d 1272 (11th Cir. 2011), 08-13773, Gill v. Mecusker

Docket Nº:08-13773.
Citation:633 F.3d 1272
Opinion Judge:ALARC
Party Name:Marvin C. GILL, Petitioner-Appellant, v. P.J. MECUSKER, Attorney General, State of Florida, Respondents-Appellees.
Attorney:Eric M. Wachter and Daryl L. Joseffer (Court-Appointed), King & Spalding, LLP, Washington, DC, for Gill. Patricia Ann McCarthy, Office of Atty. Gen./Dept. of Legal Affairs, Tampa, FL, for Respondents-Appellees.
Judge Panel:Before TJOFLAT, HILL, and ALARC
Case Date:February 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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633 F.3d 1272 (11th Cir. 2011)

Marvin C. GILL, Petitioner-Appellant,


P.J. MECUSKER, Attorney General, State of Florida, Respondents-Appellees.

No. 08-13773.

United States Court of Appeals, Eleventh Circuit.

February 23, 2011

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[Copyrighted Material Omitted]

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Eric M. Wachter and Daryl L. Joseffer (Court-Appointed), King & Spalding, LLP, Washington, DC, for Gill.

Patricia Ann McCarthy, Office of Atty. Gen./Dept. of Legal Affairs, Tampa, FL, for Respondents-Appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, HILL, and ALARCÓ N,[*] Circuit Judges.

ALARCÓ N, Circuit Judge:

Marvin C. Gill appeals from the district court's denial of his petition for habeas corpus, pursuant to 28 U.S. C. § 2254. We issued a Certificate of Appealability on the following issue: whether the district court erred in finding that appellant did not " clearly and unequivocally" assert his desire to represent himself, where the state trial court found that appellant attempted to waive his right to counsel but the waiver was not knowing and voluntary. After oral argument and careful review of the record and the briefs filed herein, we conclude that the district court's denial of Gill's petition is due to be affirmed.



Gill was originally charged with eight counts of capital sexual battery of a child

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under the age of twelve. Four counts involved a seven-year-old girl, and four counts involved an eight-year-old girl. The incidents occurred on May 2, 1987, while the two girls were staying at Gill's home. After two counts were dismissed, Gill originally was tried for six counts of capital sexual battery. The jury at Gill's original trial found him guilty of one count and guilty of the lesser included offense of lewd and lascivious act charged on another count as to one of the girls. As to the other girl, the jury found Gill guilty of the lesser included offense of lewd and lascivious act charged in count five and guilty of the lesser included offense of attempted sexual battery charged in count six. Gill received consecutive sentences of fifteen years for each of the two lewd and lascivious acts, thirty years for the attempted sexual battery, and life with a minimum of twenty-five years for the capital sexual battery.

Following his first trial and conviction, Gill filed a motion for post-conviction relief. The District Court of Appeal of Florida, Second District, reversed the trial court's denial of Gill's motion on the issue of whether defense counsel had interfered with Gill's right to testify at trial, and the court remanded the case for an evidentiary hearing on that issue. William G. Dayton (" Dayton" ) was appointed to represent Gill at the evidentiary hearing. At the beginning of the evidentiary hearing, the trial court granted Gill's request to participate as co-counsel in that proceeding. Following the evidentiary hearing, the trial court issued its findings and an order granting Gill's motion for postconviction relief. Gill's conviction was vacated and set aside. The instant federal habeas corpus litigation, and Gill's claim that he was improperly denied his right to self representation, arise out of Gill's re-trial.


Dayton was appointed to represent Gill for the retrial. In a motion filed October 12, 1994, Gill requested permission to continue as co-counsel. Dayton consented to the co-counsel arrangement.

At the December 5, 1994 calendar call, the defense requested a continuance until March 13, 1995, and that request was granted. On January 30, 1995, Gill filed a motion for the appointment of substitute counsel. On February 15, 1995, Dayton moved to withdraw. Both motions were denied at a February 17, 1995 hearing and in written orders dated March 6, 1995. On March 3, 1995, Gill filed a " motion to dismiss appointed counsel and to allow the defendant to represent himself pro se. " In that motion, Gill " reiterat[d] all the allegations made in his previously filed Motion to Appoint Substitute Counsel" and added that communication had broken down with Dayton. Mot. to Dismiss Appointed Counsel and Allow Def. to Represent Himself (" Mot. for Self-Rep." ) at 1-2. Gill alleged in his March 3, 1995 motion that:

Whereas, the choice in Mr. Gill's dilemma is to represent himself, rather than going to trial with incompetent and unp[re]pared Counsel. Therefore[,] he is requesting this Honorable Court to dismiss Mr. William G. Dayton, so that Mr. Gill can proceed with the necessary preparations needed to defend his case.

Id. at 2-3.

On March 6, 1995, one week before trial, the trial court heard argument on Gill's motion to appoint substitute counsel. The record of that proceeding reflects the following colloquy:

[PROSECUTOR] VAN ALLEN: Mr. Gill has filed a pro se motion to allow— to ask the Court to allow him to represent himself. And my understanding is that there be additional counsel that are

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being sought to be retained. I don't know if that's the case or not.

THE COURT: Do you want to deal with this?

MR. DAYTON: Yes. As Mr. Van Allen has pointed out, Mr. Gill has filed a motion to be allowed to proceed pro se, representing himself—

THE COURT: We've been through that, haven't we? That's nothing new.

MR. DAYTON: No, Your Honor, although his former motion was to discharge me and to appoint different counsel. He's now asking to have me discharged and to let him represent himself. I would submit that this is further evidence of a complete breakdown in communication between Mr. Gill and myself, and I would renew my motion for leave to withdraw.

As to the second matter Mr. Van Allen mentioned, I have spoken with a lawyer in Tampa, Mr. Dolan I believe his name is, who has spoken with friends and relatives of Mr. Gill about being retained. As of about 11:30 this morning I spoke with him, and no retainer had been received and no decision has been made by him and the lawyer whom he intended to associate as to whether or not they would in fact accept the case.

They are seriously considering it and there are discussions ongoing with persons offering to put up money on behalf of Mr. Gill.

THE COURT: Well, we're mixing issues. The motion to appoint in large part, if not exclusively, basically reiterates and reincorporates all the previously filed motions to appoint substitute counsel. That was heard, that was denied. This kind of activity shows that the defendant himself really is not knowledgeable enough to proceed in these matters if he filed a duplicitous motion a couple of weeks after the other motion was disposed of.

Secondly, by the Court's observance of your conduct and handling of this case, even today I can see that you are competent and you are well kept abreast of this case. The fact that you may or may not be able to spend the time and communicate everything that you are doing to Mr. Gill is not enough to discharge an attorney who is obviously competent in performing the duties.

Now, if Mr. Gill chooses to replace you with some privately retained or funded counsel of his choice that's his prerogative. I certainly would not interfere with that, but it is set for trial the 13th [of March]. Whether that attorney can prepare for it in that time or not, I don't know. It hasn't happened, it's moot.

What's the State's response on these matters?

[PROSECUTOR] VAN ALLEN: Your Honor, you've covered basically what I was going to argue with the exception that Mr. Gill is, again in my estimation, attempting to build a record for himself. His argument basically is that since you're forcing me to go to trial with an incompetent or unprepared lawyer then I may as well go to trial on my own.

* * *

THE COURT: Well, it's old territory in essence.

* * *

THE DEFENDANT: Your Honor, I would like to bring to the Court's attention, this motion that I'm filing to represent myself is not a duplicate motion that I have filed before; this is a separate motion. I have filed a motion to dismiss counsel and to reappoint a new attorney. This motion is different in the fact that it addresses that I am

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going to— I would like to dismiss my— Mr. Dayton, my appointed attorney, and to represent myself. I have covered everything that I can possibly think of in the motion to prove that Mr. Dayton has not prepared himself for this trial, and I am certainly, definitely entitled to represent myself if I choose to do so. I believe that this is covered under the provisions of Faretta v. California and Gideon v. Wainwright and several more of the constitutional cases that will give me the right to represent myself.

The point that I'd like to make out to prove my point that Mr. Dayton has not prepared this thing, I have ordered an index of the court's proceedings from the time that Mr. Dayton was appointed until the present time. I believe Mr. Dayton has filed three motions. He has not deposed any witnesses for the State or defense. He has not made any preparations other than what we are going through today to obtain any expert witnesses needed by the defense. He has not investigated any claims that I have made as far as the defense on the outside. And of course, it's quite obvious by the record that he has not filed any type of pretrial motions to preserve the record or preserve my appellate rights in this case.

So it leaves me in a position to where I am forced to either be represented by Mr. Dayton which I know is not prepared or to represent myself at this time and which I believe that I have a perfect right to do so. In addition to that I am also asking for a continuance in the March 13th trial. Both of these motions have been filed with the court. Number one, so that I can make the necessary preparations to...

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