Barham v. Powell, 89-1616

• Decision Date: 05 December 1989
• Docket Number: No. 89-1616,89-1616
• Citation: Barham v. Powell, 895 F.2d 19 (1st Cir. 1989)
• Parties: Raymond J. BARHAM, Petitioner, Appellant, v. Ronald L. POWELL, etc., et al., Respondents, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 19

895 F.2d 19

Raymond J. BARHAM, Petitioner, Appellant, v. Ronald L. POWELL, etc., et al., Respondents, Appellees.

No. 89-1616.

United States Court of Appeals First Circuit.

Heard Dec. 5, 1989.

Decided Jan. 31, 1990.

James E. Duggan, Concord, N.H., for petitioner, appellant.

Tina Schneider, Asst. Atty. Gen., with whom John P. Arnold, Atty. Gen., Concord N.H., was on brief, for respondents-appellees.

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

COFFIN, Senior Circuit Judge.

Appellant Raymond Barham was convicted of first degree murder in New Hampshire state court and sentenced to life in prison without the possibility of parole. He filed a habeas corpus petition in federal court claiming that he was denied his Sixth Amendment right to represent himself because he was allowed insufficient access to a law library and, consequently, was forced to accept representation by counsel for his trial. The district court dismissed the petition largely on the ground that Barham's problem was of his own making. After careful review of the record and relevant precedent, we conclude that the district court correctly resolved this case.

I.

On August 30, 1981, Barham shot and killed his estranged wife's then-companion as the couple was coming home from church. Barham was arrested within an hour and charged with first-degree murder. An attorney appointed the next day to represent Barham advised him to plead guilty to second-degree murder in exchange for a recommended sentence of 30 years to life. Barham, however, wanted to go to trial.

In January 1982, after Barham expressed dissatisfaction with his original lawyer, a new attorney was appointed, and the trial was postponed until October. The second lawyer also was dismissed and, at the request of his third lawyer, Barham's trial was postponed again, this time until May 1983.

On December 8, 1982, Barham filed a motion for permission to proceed pro se, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the leading case on a criminal defendant's Sixth Amendment right to self-representation. Although initially denied, the request was reconsidered by the trial court at a hearing on January 21, 1983. Barham told the judge that his latest attorney, public defender Mark Sisti, "was proceeding in a manner contrary to my wishes and desires," and that he wanted to represent himself. He said he knew that there were "mechanical difficulties" in representing himself because of his incarceration.

The judge advised Barham that the case would proceed in May as scheduled whether Barham had counsel or represented himself. The judge observed, however, that there were "three or four months" left before trial and there was "plenty of time to get things done." He therefore allowed Barham to proceed pro se with the assistance of Sisti as stand-by counsel. Sisti requested that Barham be given a copy of the New Hampshire Rules of Evidence and be allowed access to a typewriter. Barham requested one hundred dollars for supplies, and the trial judge assured him that "[n]o reasonable request will be refused."

Five days after the hearing, Barham filed a motion asking for access to a law library. The motion noted that "the use of the law library at the Carroll County Courthouse by inmates at the Carroll County Jail is not without precedent," but it made no specific request for access to the county library. On January 31, the court ordered Barham transferred to the state prison so that he could use the law library and other facilities available there.

The transfer did not work out as the court had intended. Barham was denied access to the prison library and placed in maximum security because he had a beard in violation of prison security regulations. He refused to shave because, he claimed, the beard was "vital" to his defense. ¹ On February 8, a public defender wrote to the attorney general's office requesting an expedited hearing on Barham's situation. On February 22, Barham filed a motion seeking an immediate hearing, complaining that he was being held "virtually incommunicado and ... unable to utilize the Law Library."

A hearing was held on March 23, nearly two months after Barham's arrival at the prison. Apparently concluding that no suitable method existed for allowing Barham to use the prison library, the court ordered him returned to the Carroll County jail with access to the library at the Carroll County Superior Court "for the purpose of research and preparation so as not to prevent trial to commence as presently scheduled."

On April 5, Barham sought a 56-day continuance of the May trial date to make up for the preparation time he lost while at the state prison. The court denied Barham's request, finding that his lack of access to the prison library had "resulted from his individual and personal election to retain a beard prohibited by state prison regulations." The New Hampshire Supreme Court dismissed Barham's writ of mandamus seeking an order postponing his trial.

Jury selection began on May 2, 1983. During the voir dire of the sixth prospective juror, Barham interrupted the proceedings and told the judge that his five weeks of preparation time had been "woefully insufficient" and that, because his request for a continuance had been denied, "under the greatest possible protest, I must relinquish my Faretta rights." The stand-by counsel, Sisti, said he was unprepared to proceed that day and would need a continuance. The prosecutor agreed to the postponement on the condition that Barham state for the record that he voluntarily waived his right to self-representation. After a lengthy colloquy involving the defendant, Sisti, the court and the prosecutor, Barham eventually agreed to do so, stating, "Your Honor, I knowingly and voluntarily relinquish my Faretta rights." The court then rescheduled the trial for July.

The trial, at which Barham was represented by Sisti and another public defender, ended with a jury finding Barham guilty of first degree murder. He filed a timely appeal to the New Hampshire Supreme Court in which he claimed violations of his rights to a speedy trial and self representation. That court affirmed Barham's conviction in a four-to-one decision. State v. Barham, 126 N.H. 631, 495 A.2d 1269 (1985). ²

II.

Barham claims that he was denied his Sixth Amendment right to represent himself by the trial court's refusal to give him adequate time to prepare. He further asserts that it was constitutionally impermissible to force him to choose between a continuance and his Sixth Amendment right to proceed pro se.

We agree with the New Hampshire Supreme Court that the proper formulation of this issue is "whether or not the court properly denied the defendant's request for a continuance." See State v. Barham, 126 N.H. at 640, 495 A.2d at 1275. In attempting to characterize the trial court's actions as imposing upon him an impermissible choice between additional preparation time and waiving his Faretta right, Barham misperceives what happened at the May 2 hearing.

In response to Barham's apparently spontaneous declaration that he wished to forego self-representation, ³ the court forthrightly announced its intention to proceed with the trial no matter who represented Barham. The public defender, however, stated that he was not prepared and would ask for a continuance if appointed. Although the court initially was inclined to deny such a request, ⁴ and the prosecutor initially opposed a delay, after some discussion among all parties, the prosecutor apparently concluded that forcing Sisti to go to trial unprepared raised a sufficient possibility of reversible error that it was more prudent to go along with a continuance. The prosecutor, however, saw the opportunity to foreclose another appealable issue by having Barham state for the record that he voluntarily had waived his right to represent himself. The prosecutor offered to go along with the continuance in exchange for the articulated waiver.

Thus, what Barham was required to give in exchange for the continuance was not the actual waiver of his right--which had occurred earlier and triggered the discussion in the first place--but the public assurance that his decision to request counsel had been made voluntarily. Ironically, the prosecutor sought to avoid just the sort of claim that Barham now makes, that the court exacted a waiver of his Sixth Amendment right to proceed pro se as a price for a continuance. In reality, when Barham interrupted the jury selection for the purpose of waiving his Faretta rights, he had every reason to believe that the trial would resume immediately but with Sisti conducting the defense. His lawyer in fact got a continuance at no real cost to Barham.

This is not to say that Barham felt no "compulsion" to forego self-representation. To be sure, he felt pressured to seek counsel because he was not prepared to proceed pro se. But whether that pressure is constitutionally relevant depends upon whether the judge properly refused to give him the requested 56-day continuance. If Barham needed that extra time to exercise his right to self-representation in a meaningful way, then denying him the time effectively deprived him of the right and may have been constitutional error. See Armant v. Marquez, 772 F.2d 552, 558 (9th Cir.1985) (denial of continuance request improperly denied defendant opportunity to prepare his own defense). If, however, the court was within its discretion in denying the continuance, the fact that lack of preparation time "forced" Barham to seek counsel does not make his waiver involuntary for constitutional purposes. See Maynard v. Meachum, 545 F.2d 273, 278 (1st Cir.1976) (voluntary waiver of a constitutional right "does not mean that the decision [to waive the right] must be entirely unconstrained").

We therefore now consider whether the judge properly refused Barham's request for...