Buhl v. Mr. Cooksey Warden

• Decision Date: 07 February 2000
• Citation: 233 F.3d 783
• Parties: (3rd Cir. 2000) LEROY BUHL, Appellant v. MR. COOKSEY, WARDEN; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY NO. 98-5342 Argued:
• Court: U.S. Court of Appeals — Third Circuit

Page 783

233 F.3d 783 (3rd Cir. 2000)

LEROY BUHL, Appellant v. MR. COOKSEY, WARDEN; ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

NO. 98-5342

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued: February 7, 2000

Filed December 1, 2000

On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 96-cv-00958) District Judge: Honorable Mary L. Cooper

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Steven A. Feldman, Esq. (Argued) Arza R. Feldman, Esq. Feldman & Feldman 1800 Northern Boulevard Suite 206 Roslyn, NY 11576, Attorneys for Appellant

Marcy H. Speiser, Esq. (Argued) Office of Attorney General of New Jersey Richard J. Hughes Justice Complex Trenton, NJ 08625, Attorney for Appellees

Before: SLOVITER, SCIRICA and McKEE, Circuit Judges.

OPINION OF THE COURT

McKEE, Circuit Judge.

Leroy Buhl appeals the district court's denial of the habeas corpus petition he filed pursuant to 28 U.S.C. S 2254. His petition originally contained several claims for relief. However, Buhl only exhausted two of his claims, and only one of those two exhausted claims is before us now.¹ In the one claim that we consider, Buhl argues that he was denied his constitutional right to conduct his own defense during his criminal trial in state court. The district court rejected that assertion without a hearing. We hold that the trial court's rejection of Buhl's clear and unequivocal assertion of his right to proceed pro se was improper. Accordingly, we will vacate the district court's ruling and remand for further procedures consistent with this opinion.

I. Background

On November 16, 1988, the State of New Jersey charged Buhl in a twenty-one count indictment with, inter alia, kidnaping, criminal restraint, terroristic threats, possession of a weapon for an unlawful purpose, aggravated sexual assault, criminal sexual assault, aggravated assault, and possession of a weapon by a previously convicted person. The charges arose from a horrific 24 hour reign of terror during which Buhl visited a living hell upon his victim. The terror began when Buhl kidnaped a woman from a bar in New Jersey in the early morning hours of August 6, 1988. After kidnaping his victim, Buhl sexually assaulted, beat, and threatened her over the course of the ensuing 24 hours. While holding her hostage, Buhl also drove his victim to various locations in New Jersey and Pennsylvania in her own car. Buhl's terrorized victim was only able to escape when Pennsylvania police stopped her car to investigate its temporary license plate. She was then able to run to the patrol car and tell the officers that she had been kidnaped, raped and assaulted; and beg the police for help. When he saw his victim run to the safety of the patrol car, Buhl sped away, but he was captured approximately one month later. Thereafter, he was successfully prosecuted in federal court as well as the state courts of New Jersey and Pennsylvania for the various state and federal crimes he had committed in each jurisdiction during his rampage.

On December 20, 1990,² -- approximately three weeks before his trial in the New Jersey state court was to begin -- Buhl filed a written motion to dismiss counsel and proceed pro se. In an affidavit accompanying that motion Buhl stated that he was dissatisfied with his attorney's investigation and that his lawyer was incompetent. See State v. Buhl, 635 A.2d 562, 570 (N.J. Super . Ct. App. Div. 1994). The trial judge held a hearing on that motion on January 22, 1991. During that hearing, the judge acknowledged that he had received the motion, and he reminded Buhl that the charges were "darn serious," and "overwhelming". App. at 12, 16. The judge then told Buhl that he (the judge) believed Buhl's motion to dismiss counsel was motivated by dissatisfaction with appointed trial counsel. The judge nevertheless asked Buhl if he wanted to proceed with his motion, and Buhl confirmed that he did. Id. at 12. Buhl told the court that he had "about twelve motions," he wanted to pursue if he was allowed to proceed pro se. He also explained, "I understand the charges against me[,] and I feel confident that I can handle these myself," and he informed the court that he had represented himself before "three separate times." Id. at 13-14.

The judge responded: "See the problem I've got, Mr. Buhl is the pro se application is based upon the fact that what your [sic] saying is that you don't have competent counsel . . . [A]m I right?" Buhl confirmed: "Yes, your Honor." Id. at 14. The judge concluded that Buhl should not be allowed to proceed pro se because Buhl's motion was based upon his belief that defense counsel was unprepared and incompetent. The judge stated:

My inclination, and the nature of the charges themselves also the kind of case we're dealing with here is not to allow Mr. Buhl to proceed pro se [,] but to give him the right to put what he wants to put on the record and lay it all out. I say you can make motions [pro se].

Id. at 24. The court then continued the case for approximately one month (apparently at defense counsel's request) to allow Buhl's attorney more time to contact additional witnesses. During the intervening month, Buhl continued to file pro se motions, but he did not file another motion to conduct his own defense during trial.

When court resumed for trial on February 25, 1991, Buhl's attorney recounted his attempts to track down various defense witnesses. Id. at 58-62. Once again, Buhl complained about a lack of communication with his counsel and, before jury selection began, he renewed his motion to proceed pro se. The judge again denied his motion, and the court began jury selection. However , at the completion of jury selection, Buhl refused to participate in the proceedings and he was escorted from the courtroom. Buhl's trial lasted from February 25, 1991, until March 6, 1991. The jury convicted Buhl on all of the remaining eighteen counts of the indictment,³ and he was subsequently sentenced to an aggregate term of life imprisonment plus thirty years with a forty-year parole ineligibility. The sentence was consecutive to a federal sentence of life imprisonment for kidnaping that has been affirmed by this court,⁴ and a sentence of twenty to forty years incarceration that had been imposed in state court in Pennsylvania following his conviction there.

Thereafter, Buhl obtained new counsel who appealed Buhl's New Jersey conviction to the New Jersey Superior Court, Appellate Division, alleging, inter alia, that the trial court had denied Buhl's constitutional right of self-representation. See State v. Buhl, supra. The Appellate Division rejected all of Buhl's claims and affirmed his conviction. The court concluded that Buhl's Sixth Amendment right to conduct his own defense had not been denied because his request to do so was under mined by his subsequent vacillation. The court reasoned that even though Buhl initially insisted on representing himself at trial, he subsequently "expressly agreed" to allow counsel to represent him "on the condition that he [Buhl] be permitted to file pro se motions and advance supplemental arguments." Buhl, 635 A.2d at 571. The Appellate Division concluded that Buhl was not entitled to this hybrid representation, and his assertion that the trial court had improperly denied his request to proceed pro se was therefore without merit. The court relied upon McKaskle v. Wiggins, 465 U.S. 168 (1984), in concluding that "[Buhl's] subsequent complaints [lost] much of their force," because he accepted the trial court's offer of hybrid representation. Buhl, 635 A.2d at 571-572. The court also thought that the request that was made immediately prior to impaneling the jury on February 25, 1991, was untimely because the judge would have had to continue the trial in order to allow Buhl to conduct his own defense. Thus, reasoned the Appellate Division, the prosecutor's "legitimate demand for stability in the scheduling of cases was properly accorded priority." Id. at 572.

The New Jersey Supreme Court refused to hear Buhl's appeal from the decision of the Appellate Division, and Buhl thereafter filed a petition under 28 U.S.C. S 2254 alleging four grounds for relief. The district court dismissed that petition because it contained unexhausted claims. However, we granted a certificate of probable cause⁵ and remanded the case so that the district court could consider the two exhausted claims.

On remand, the district court considered and rejected Buhl's exhausted claims,⁶ and denied his petition. The district court agreed with the Appellate Division that Buhl's Sixth Amendment claim had actually been an assertion of incompetent counsel, and that Buhl had vacillated between assigned counsel and self-representation. Dist. Ct. Op. at 12. The court found that Buhl's concession to hybrid representation negated the need for any further inquiry into his written motion to proceed pro se. Id. The district court concluded, the trial court had properly denied Buhl's February 25, 1991 request because it was made on the eve of trial, it was really a complaint about trial counsel's stewardship, and granting the request would have further delayed the proceedings. Id. at 12-13. The district court then denied Buhl's petition on the merits, and later denied an application for a certificate of probable cause. We granted a certificate of appeal ability and this appeal followed. Buhl has raised only the Sixth Amendment claim in briefing and in argument, and that is the only claim we will address.

II. Discussion

We have jurisdiction to review Buhl's appeal under 28 U.S.C. SS 1291, 2253. Our review of the district court's legal conclusions is plenary. See Bey v. Morton, 124 F.3d 524, 528 (3d Cir. 1997); Walker v. Vaughn, 53 F.3d 609, 613 (3d Cir. 1995). Under the pre-AEDPA standard, the state court's factual findings are presumed to be correct unless, inter alia, the state court's findings are not ...