Carey v. State of Minn.

• Decision Date: 05 July 1985
• Docket Number: No. 84-5166,84-5166
• Parties: Michael Edward CAREY, Appellee, v. STATE OF MINNESOTA, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 440

767 F.2d 440

Michael Edward CAREY, Appellee, v. STATE OF MINNESOTA, Appellant.

No. 84-5166.

United States Court of Appeals Eighth Circuit.

Submitted Dec. 24, 1984.

Decided July 5, 1985.

Cecilia M. Michee, Minneapolis, Minn., for appellant.

Steven C. DeCoster, St. Paul, Minn., for appellee.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and McMILLIAN, Circuit Judge.

PER CURIAM.

Michael Edward Carey appeals from the district court's ¹ denial of his petition for a writ of habeas corpus. We affirm.

Carey was convicted of simple robbery in the Minnesota District Court in January 1971. Shortly before trial, Carey dismissed his appointed counsel and asked the court for substitution of other state-appointed counsel. Carey stated that he felt his counsel had done an inadequate job of cross-examination at the pre-trial suppression hearing. The court denied the request, but advised Carey that he could conduct his own defense with his present counsel available in an advisory capacity. The court asked whether Carey wished to try the case himself and he replied, "No. I don't. I want a different attorney. But since I can't have one I'll conduct my own defense, yes." Carey proceeded without an attorney, was convicted by the jury of simple robbery, and was sentenced on February 12, 1971, to an indeterminate term not to exceed ten years. On September 12, 1972, Carey was released on parole. The Minnesota Supreme Court affirmed Carey's conviction in an opinion filed May 18, 1973. See State v. Carey, 296 Minn. 214, 207 N.W.2d 529 (1973). On October 28, 1974, Carey's parole expired on his simple robbery conviction. Since his release on this conviction, Carey has been convicted of other felonies and was serving time in federal prison at the time the briefs in this matter were filed.

On May 16, 1984 Carey petitioned the federal district court for a writ of habeas corpus pursuant to 28 U.S.C. Sec. 2254. After discussing the jurisdictional issues of "in custody," "ripeness," "no unreasonable time delay," and "no prejudice to state for reconsideration," the district court left those issues open and went directly to the merits of Carey's claim. In denying the petition, the district court noted that both the state trial court and the state supreme court found that Carey's court appointed counsel had conducted a very lengthy and extensive cross-examination at the suppression hearing. The court ruled that Carey's court-appointed counsel had performed competently, and that by dismissing his counsel Carey had availed himself of his constitutional right to self-representation.

We agree with the district court that Carey's habeas petition fails on the merits. A criminal defendant does not have the absolute right to counsel of his own choosing. Williams v. Nix, 751 F.2d 956, 959 (8th Cir.1985); State v. Fagerstrom, 286 Minn. 295, 176 N.W.2d 261, 264 (1970). Accord United States v. Ely, 719 F.2d 902, 904-05 (7th Cir.1983), cert. denied Y--- U.S. ----, 104 S.Ct. 1313, 79 L.Ed.2d 710 (1984); United States v. Gipson, 693 F.2d 109, 111 (10th Cir.1982), cert. denied, 459 U.S. 1216, 103 S.Ct. 1218, 75 L.Ed.2d 455 (1983). Carey's citation to Patton v. North Carolina, 315 F.2d 643 (4th Cir.1963) is inapposite. In Patton, the accused dismissed his retained counsel because he was inadequately prepared, and the trial court refused Patton's requests to appoint counsel for him. The Fourth Circuit held that Patton was entitled to court-appointed counsel, and that his requests for such counsel negated any possibility that he had waived his constitutional right to counsel. Here, however, the trial court properly informed Carey that he did not have the right to a...