Tuitt v. Fair, 86-1808
| Decision Date | 04 February 1987 |
| Docket Number | No. 86-1808,86-1808 |
| Parties | Michael C. TUITT, Plaintiff, Appellant, v. Michael FAIR, Massachusetts Commissioner of Corrections, Defendant, Appellee. . Heard |
| Court | U.S. Court of Appeals — First Circuit |
William C. Newman, by Appointment of the Court, with whom Lesser, Newman, Souweine & Nasser, Northampton, Mass., was on brief, for plaintiff, appellant.
Barbara A.H. Smith, Asst. Atty. Gen., with whom Francis X. Bellotti, Atty. Gen., Frederick W. Riley and Annette C. Benedetto, Asst. Attys. Gen., Boston, Mass., were on brief, for defendant, appellee.
Before CAMPBELL, Chief Judge, ALDRICH and SELYA, Circuit Judges.
Petitioner Michael C. Tuitt appeals from a judgment of the United States District Court for the District of Massachusetts denying his petition for a writ of habeas corpus under 28 U.S.C. Sec. 2254 (1982). Arguing on appeal that the district court erred in withholding habeas relief, Tuitt emphasizes the following purported errors by the Massachusetts Superior Court that convicted him. He says the superior court infringed his Sixth Amendment right to counsel when it denied his requests for a continuance and for substitute counsel. He says that the superior court impermissibly denied his request to proceed pro se. Finally, he says that the Massachusetts habitual offender statute, Mass.Gen.Laws ch. 279, Sec. 25 (1984), under which he received a life sentence, is unconstitutionally vague, and that his life sentence violated the Eighth Amendment guarantee against cruel and unusual punishment.
Tuitt first raised these contentions, unsuccessfully, in an appeal taken from his state conviction to the Massachusetts Supreme Judicial Court. Commonwealth v. Tuitt, 393 Mass. 801, 473 N.E.2d 1103 (1985). After affirmance of his conviction by that court, he brought this habeas corpus petition in the federal district court.
The facts which the jury could have found at Tuitt's state criminal trial are essentially these. On June 14, 1982, one Sylvester Jackson was driving to the bank in Springfield, Massachusetts, to deposit $4,000 in receipts from two liquor stores. He stopped at the corner of Monroe and Hancock Streets because a blue Chevrolet, later identified as an automobile registered to Tuitt's mother, was blocking his way. Two men suddenly opened the doors on each side of Jackson's automobile. The man on the driver's side of Jackson's vehicle, later identified by an eyewitness as Tuitt, threatened Jackson with a pistol similar to the one seized from Tuitt at the time of his arrest approximately three weeks later. This assailant demanded, The other assailant grabbed the money from the front seat and passed it to Tuitt. Tuitt ran to the blue Chevrolet that was blocking the street and removed his ski mask.
Elaine Hatche, a traffic safety monitor, testified that she was on her way to work when she witnessed the robbery. She watched as the assailant ran to the Chevrolet and got in. The assailant pulled off his ski mask and looked at her. She later identified that assailant as Tuitt. She also identified the gun taken from Tuitt and the car as having been used in the robbery. She had seen Tuitt in the neighborhood before that day but did not know him by name.
McCrary Ranson testified that on June 14, 1982 he was working at his restaurant located near the robbery scene. He had known Tuitt for 20 years. At the time of the robbery, Ranson was standing in front of the restaurant when the sound of squealing tires drew his attention down the street. He saw Tuitt driving the blue Chevrolet, a car Ranson had seen the petitioner drive many times before, including the day before the robbery.
Tuitt was found guilty of armed robbery while masked, Mass.Gen.Laws ch. 265, Sec. 17 (1984), and carrying a firearm without lawful authority, Mass.Gen.Laws ch. 269, Sec. 10 (1984). The court immediately considered the issue of whether Tuitt was a habitual offender. Evidence was introduced which showed that Tuitt had been convicted in 1977 of breaking and entering in the daytime; that he had been convicted in 1978 of armed robbery and assault with a dangerous weapon; that he had also been convicted in 1978 of possession of a sawed-off shotgun, carrying a firearm in a motor vehicle without authority, and assault and battery by means of a dangerous weapon.
The jury found that Tuitt was a habitual offender. Under Massachusetts law, a habitual offender is punished by imprisonment for the maximum term provided for the felony for which he is to be sentenced, Mass.Gen.Laws ch. 279, Sec. 25 (1984). Since life imprisonment is the maximum sentence for armed robbery while masked, Tuitt received a life sentence.
The facts which gave rise to Tuitt's claims of interference with his right to counsel and to proceed pro se are as follows. Tuitt's trial was first scheduled for October 6, 1982. A continuance was granted at Tuitt's request, and trial was rescheduled for October 20, 1982. At all relevant times Tuitt was represented by court-appointed counsel, a Mr. Rubin. On the day appointed for trial, October 20, Tuitt presented two motions. He moved to continue the trial because his attorney was not prepared. He also moved to dismiss his attorney and to substitute different, unspecified counsel stating, "Also my girl friend has spoke to a couple of lawyers and at this time I am able to retain my own attorney and wish to do so."
The court denied both motions. In respect to the motion to dismiss Mr. Rubin, the court stated, in a memorandum,
The defendant after filing a motion for a continuance, which this court denied, filed a motion to dismiss court-appointed attorney and allow the defendant leave to obtain private counsel.... [The court then discussed petitioner's related motion to proceed pro se, discussed infra.] The defendant made some unsubstantiated and unfounded allegations of the incompetence of counsel and made some vague references to contacting other attorneys who would represent him in this case. It is to be noted that no appearances were filed nor was there any indication to the court directly or indirectly by any counsel of his intent to appear any time in the case.
This motion was filed for the first time on the day of trial and indeed this was the first time that defense counsel had been given any notice that the defendant was not satisfied with his representation.
I find that this unsupported motion is dilatory, without substance. Indeed, a review of the docket entries will clearly indicate that Attorney Rubin was exhaustive in his discovery, obtained all the necessary documentation that one would anticipate he would seek during the discovery process, assigned an investigator to investigate the factual background of the case and the witnesses, and presented a number of pre-trial motions, most of which were acted upon favorably by this court.
In the courtroom, when the motion was denied, the court told Tuitt,
There is a motion ... to dismiss Court-appointed attorney; I will deny the motion, it is unsubstantiated, unsupported motion, and the Court does have a great deal of respect and admiration for Mr. Rubin as one of the most foremost trial lawyers, has a [reputation] I am familiar with in this community, and I question very sincerely whether or not you could get counsel that could match his capability and ability, and I certainly question whether or not you could get better defense from another source.
There being nothing to support the motion other than on a blanket allegation, I am going to deny the motion. I will, however, Mr. Tuitt, I am going to reserve your rights, your objection to my denying your motion on the record at this time.
The court then denied the motion for continuance, and the following colloquy occurred:
He will also be available during the course of the trial for any advice or information you may desire, make his file available to you, to explain anything that is in his file, but he will be available at all times during the course of this trial.
I am not a learned person in the law, I want counsel but this man is not prepared to represent me.
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