Orazio v. Dugger, 88-3389

Decision Date11 July 1989
Docket NumberNo. 88-3389,88-3389
Citation876 F.2d 1508
PartiesAnthony ORAZIO, Petitioner-Appellant, Cross-Appellee, v. Richard L. DUGGER, Robert A. Butterworth, Respondents-Appellees, Cross-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Anthony Martinez, Asst. Federal Public Defender, Tampa, Fla., for petitioner-appellant, cross-appellee.

James A. Young, Davis G. Anderson, Jr., Asst. Atty. Gen., Tampa, Fla., for respondents-appellees, cross-appellants.

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

Before JOHNSON and EDMONDSON, Circuit Judges, and TUTTLE, Senior Circuit Judge.

TUTTLE, Senior Circuit Judge:

This is an appeal from the denial of a petition for the writ of habeas corpus, following a hearing before a United States magistrate, whose report and recommendation recommended the grant of the petition.

I. STATEMENT OF THE CASE

Orazio was convicted of several state offenses. Prior to the trial, the assistant state public defender, who had been appointed by the state trial judge to represent Orazio, filed a motion to be relieved from this representation. At the hearing on such motion, the appointed counsel stated: "I believe [Orazio] wanted to address the court." Thereupon, Orazio stated: "Yes, I did want to represent myself on two of the matters that I'm facing right now which is the extortion and the extradition to New York and the contraband charge, so three of them altogether."

The court then, after explaining to Orazio the dangers of a layman's attempting to represent himself, stated:

You would be extremely foolish to attempt to defend yourself on these cases without benefit of counsel, and I don't consider that your background, education and so-called learning abilities are sufficient to meet the challenges of all these charges so I'm going to deny your motion to represent yourself.

Without any further protest by appellant or discussion on the matter, the trial proceeded with counsel appointed by the trial judge and it resulted in Orazio's convictions. Upon direct appeal, different counsel represented Orazio, and he made no inquiry as to what happened at the pre-trial and trial stages of the proceedings. He did not include as a ground of appeal Orazio's contention that he had a constitutional right to represent himself which had been denied by the trial court. The appeal was fruitless in the Florida district court of appeals. Thereupon, Orazio filed his petition for review pursuant to Florida Rule 3.850, challenging the denial of his right to represent himself at trial. He also filed a habeas corpus action in the district court of appeal for the state of Florida challenging the effectiveness of his appellate counsel for not raising on direct appeal the denial of his right to represent himself. Both of these post-conviction actions met with no success in the Florida courts. Thereupon, petitioner filed his petition for writ of habeas corpus in the federal district court for the Middle District of Florida.

After a hearing, the magistrate filed his report and recommendation, stating that: "Petitioner ... clearly and unequivocally invoked his constitutional right to represent himself." The magistrate then found that:

Appellate counsel failed to raise an issue that would have ultimately, in federal court if not in state courts, within a reasonable probability, resulted in a reversal and new trial. Under the circumstances presented in this case, petitioner's appellate counsel was ineffective under the standards set forth in Strickland v. Washington, 466 U.S. 668 [104 S.Ct. 2052, 80 L.Ed.2d 674] (1984), and Mattie [Matire] v. Wainwright, F.2d [1430], Case No. 84-5705 (11th Cir. March 9, 1987).

The magistrate concluded by stating:

Petitioner's counsel's performance on appeal was constitutionally ineffective under the standard established in Strickland v. Washington, supra. Petitioner was prejudiced by counsel's failure to assert the Faretta [v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) ] claim on direct appeal. The right of self representation, if competently and voluntarily elected by a defendant, is absolute and not subject to harmless error analysis. Chapman v. United States, 553 [F.2d] 886 (5th Cir.1977). Accordingly, I recommend that the petition for habeas corpus be granted, that the petitioner's conviction be vacated and that he be afforded a new trial within a short time determined by this court.

The trial court, upon objections filed by the state, rejected the recommendation by the magistrate. Although not disagreeing with the magistrate's statement that petitioner had "clearly and unequivocally invoked his constitutional right to represent himself" or his statement that counsel had been ineffectual within the constitutional standard, the court nevertheless, upon its own consideration of the record, ordered the petition dismissed. The court based its action on two grounds:

(1) Orazio failed to establish that there was any prejudice resulting from the deficiency in appellate counsel's performance. 1

(2) The court determined that the petitioner "waived his right to self-representation in this case." The trial court stated:

The petitioner never again expressed the desire to represent himself nor demonstrated displeasure with his attorney. In fact, petitioner testified before the magistrate [at the habeas corpus hearing] that he discussed the self representation issue with his new attorney. Petitioner stated that "he [petitioner's new counsel] told me that the court had appointed him to represent me and it would be in my best interest that he continue to represent me. I let him represent me in court."

II. STATEMENT OF FACTS

The essential facts are not seriously in dispute as to the conduct of appellate counsel whose failure is the basis of appellant's attack. There was ample evidence that after counsel was appointed by the state trial judge, he continued with the representation through the end of the trial. Thereupon, a second lawyer in the public defender's office was assigned to the appeal. There is no dispute about the fact that he made no effort to discover the facts relating to the constitutional claim by Orazio to represent himself. He testified that had he known of the fact that this contention had been made at trial, he probably would have raised the issue on appeal.

Likewise, there is no dispute of the facts as to whether Orazio "waived" his claim to represent himself. The facts relied on by the trial court are as stated above:

The petitioner never again expressed a desire to represent himself or demonstrated displeasure with his attorney. In fact, petitioner testified before the magistrate that he discussed the self representation issue with his new attorney. Petitioner stated that "he [petitioner's new counsel] told me that the court had appointed him to represent me and it would be in my best interest that he continue to represent me. I let him represent me in court."

III. DISCUSSION
A. Accused's Right to Self-Representation

Appellant's principal contention, that he was denied his constitutional right to serve as his own counsel, provides the basis for his claim that he received ineffective assistance of appellate counsel. As a preliminary matter, we must address appellee's assertion that petitioner is barred from presenting his self-representation claim on collateral review because he did not raise the claim on direct appeal from his conviction, which constituted a state procedural default.

A defendant who has failed to comply with a state's procedural rules is barred from obtaining federal habeas review of his defaulted constitutional claim, unless petitioner shows cause for the procedural default and prejudice attributable to the default. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). The cause and prejudice test applies to procedural defaults on appeal as well as to those at trial. See Reed v. Ross, 468 U.S. 1, 9, 104 S.Ct. 2901, 2906, 82 L.Ed.2d 1 (1984).

Here, the procedural default was the result of appellate counsel's failure to raise the issue of Orazio's request to proceed pro se. A defendant bears the risk of attorney error that results in a procedural default, unless the defendant is represented by counsel whose performance is constitutionally ineffective, under the standard of Strickland v. Washington, supra. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 2645, 91 L.Ed.2d 397 (1986). "Ineffective assistance of counsel ... is cause for a procedural default." Id. However, a claim of ineffective assistance of counsel must first be presented as an independent state claim and exhausted in the state courts, before the claim may be used on federal habeas review to show cause. Id. at 489, 106 S.Ct. at 2646.

Petitioner here has presented his ineffectiveness claim independently and exhausted it in the state courts. As discussed below, petitioner was denied effective assistance of counsel. Furthermore, given the nature of the constitutional right involved--the right to proceed in one's own defense--a denial of the opportunity to obtain review of that claim is necessarily prejudicial. See Dorman v. Wainwright, 798 F.2d 1358, 1370 (11th Cir.1986), cert. denied, 480 U.S. 951, 107 S.Ct. 1616, 94 L.Ed.2d 801 (1987). Petitioner is not, therefore, procedurally barred from collaterally attacking in the federal court the denial of his right to proceed pro se. We move on to the merits of this claim.

A defendant in a state criminal trial has a right under the sixth and fourteenth amendments to proceed without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In order for this right to attach, a defendant must voluntarily elect self-representation, by "knowingly and intelligently" waiving the reciprocal, constitutionally protected right to the assistance of counsel. Id. at 835, 95 S.Ct. at 2541; Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019...

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