Cole v. Bowersox

• Decision Date: 10 November 2011
• Docket Number: Case No. 4:10CV1839 JCH
• Citation: Cole v. Bowersox, Case No. 4:10CV1839 JCH (E.D. Mo. Nov 10, 2011)
• Parties: MEGAL S. COLE, Petitioner, v. MICHAEL BOWERSOX, Respondent.
• Court: U.S. District Court — Eastern District of Missouri

MEGAL S. COLE, Petitioner, v. MICHAEL BOWERSOX, Respondent.

Case No. 4:10CV1839 JCH

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

Dated: November 10, 2011

MEMORANDUM AND ORDER

This matter is before the Court on Missouri State prisoner Megal S. Cole's pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter is fully briefed and ready for disposition.

On May 4, 2006, a jury in the Circuit Court of St. Louis County, Missouri, found Petitioner guilty of one count of burglary in the first degree, and one count of stealing a motor vehicle. Petitioner was sentenced as a persistent offender to thirty years imprisonment on the burglary count, and ten years imprisonment on the stealing count, said terms to be served concurrently. Petitioner's convictions and sentence were affirmed on appeal. State v. Cole, 238 S.W.3d 684 (Mo. App. 2007). Petitioner thereafter filed a motion for post-conviction relief pursuant to Missouri Supreme Court Rule 29.15, which was denied without an evidentiary hearing. (Resp. Exh. K). The Missouri Court of Appeals affirmed the denial of Petitioner's post-conviction motion. Cole v. State, 302 S.W.3d 812 (Mo. App. 2010).

Petitioner is currently incarcerated at the South Central Correctional Center in Licking, Missouri. In the instant petition for writ of habeas corpus, Petitioner raises the following five claims for relief:

(1) That the trial court erred in denying Petitioner the right to represent himself at trial;

(2) That the trial court erred in allowing the State to utilize its peremptory strike in a discriminatory manner;

(3) That the trial court erred in allowing the State to introduce improper evidence of uncharged crimes;

(4) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to allow Petitioner to testify at trial; and

(5) That Petitioner received ineffective assistance of counsel, in that trial counsel failed to object to the improper presentation of evidence of uncharged crimes at trial.

(§ 2254 Petition, PP. 5-15, 19-24). The Court will address the claims in turn.

DISCUSSION

I. Ground 1

As stated above, in Ground 1 of his petition Petitioner asserts the trial court erred in denying Petitioner the right to represent himself at trial. (§ 2254 Petition, PP. 5-6, 19-20). Petitioner raised this claim on direct appeal of his convictions, and the Missouri Court of Appeals denied the claim as follows:

In his first point on appeal, defendant¹ claims the trial court erred in denying his request to proceed pro se. Defendant argues that the court improperly denied him the right to represent himself because the court relied upon irrelevant factors such as his educational background and his knowledge of substantive and procedural law in making its decision.

As the state correctly notes, this claim of error was not included in defendant's motion for new trial. However, where an unpreserved error affects a defendant's rights so substantially that a manifest injustice or miscarriage of justice results if the error is left uncorrected, we will grant defendant relief under the plain error rule. State v. Nichols, 207 S.W.3d 215, 224 (Mo. App. 2006).

The procedural history underlying defendant's argument concerning self-representation is significant. Defendant initially filed a request for disposition pursuant to section 217.450. Counsel was appointed, and defendant filed a pro se motion seeking assignment of a different public defender. The court denied defendant's request for appointment of new counsel. Counsel requested a mental evaluation of defendant, which was granted. The court tolled the date for speedy trial to allow time for defendant to undergo a mental evaluation. Defendant subsequently filed several letters and pro se motions objecting to the mental evaluation and waiver of the right to speedy trial. The court denied defendant's requests. Defendant again sought to have court appointed counsel dismissed from his case, and the court denied his request. Defendant also filed pro se motions seeking reconsideration of the court's ruling regarding defendant's right to a speedy trial, and filed additional motions seeking new counsel. The court denied defendant's motions. Defendant ultimately filed a motion to proceed pro se, which was heard and denied. The basis of that motion was defendant's request for a speedy trial and his objection to the tolling of the time for speedy trial because of the request for a mental evaluation of defendant. Defendant's prayer for relief asked that the court proceed with the speedy trial, rather than seeking to represent himself. Defendant's testimony regarding his desire to proceed pro se at the hearing on his motion was equally unclear.

Defendant testified that he filed the motion to proceed pro se because he was not getting adequate representation from the public defender. He specifically alleged that counsel failed to investigate his case and gave him false information about the law. Defendant's testimony was largely focused upon his desire to confront witnesses and speak in his own defense. According to defendant, he received a letter from the public defender's office informing him that representing himself was one option he could pursue if he was unhappy with counsel. During the hearing, defendant stated that he was "forced into making this decision," and that he could not explain why he was "forced into going pro se." The trial court ultimately found that defendant had not voluntarily, knowingly, and intelligently waived his right to counsel. Defendant later attempted to have counsel withdrawn from his case a final time, and his request was denied.

A defendant has a constitutional right to assistance of counsel. State v. Johnson, 172 S.W.3d 900, 902 (Mo. App. 2005) (citation omitted). A defendant also has a constitutional right to waive counsel and proceed pro se. Nichols, 207 S.W.3d at 224. A defendant must assert his right of self-representation clearly and unequivocally prior to trial. State v. Parker, 890 S.W.2d 312, 316 (Mo. App. 1994). However, pursuant to section 600.051.1 RSMo (2000), when a defendant waives this right, he must do so knowingly and intelligently. To competently and intelligently choose self representation, a defendant should be made aware of the dangers and disadvantages of representing himself. Nichols, 207 S.W.3d at 224; (citing Faretta v.California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975)).

Here, defendant failed to assert his right to self-representation clearly and unequivocally. Instead, defendant stated that he was being "forced" to act pro se, and his concerns about his current representation were directed to issues concerning the request for mental evaluation and the effect of that evaluation on defendant's right to a speedy trial, confrontation of witnesses, and the right to speak in his own defense. As the court pointed out, the case had not progressed to the point of presenting a defense yet, and the decision regarding whether to testify at trial would be defendant's. There was no evidence in the record that defendant was improperly denied the right to confront witnesses or testify at trial.

As a result of the foregoing, defendant failed to clearly and unequivocally assert his right of self-representation. The trial court found that defendant did not voluntarily, knowingly, and intelligently waive his right to counsel, and defendant was represented by counsel at trial. Therefore, we cannot conclude that any error, plain or otherwise, occurred as a result of the trial court's decision to deny defendant the right to proceed pro se. Point denied.

(Respondent's Exh. J, PP. 2-5 (footnotes omitted)).

With respect to federal court review of state court conclusions, 28 U.S.C. §2254 states in pertinent part as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. §2254 (d).

Upon consideration, this Court holds the Missouri State court's finding is neither contrary to federal law, nor based on an unreasonable determination of the facts in light of the evidence presented. "The Sixth Amendment guarantees a criminal defendant the right to self-representationalong with the right to the assistance of counsel." United States v. Turner, 644 F.3d 713, 720 (8th Cir. 2011) (citing Faretta v. California, 422 U.S. 806, 818-821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).

Even though a defendant may conduct his own defense to his detriment by relinquishing the benefits associated with the right to counsel, his choice must be honored. "For this reason, in order to represent himself, the accused must knowingly and intelligently forgo those relinquished benefits... [He] should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open."

Id. (quoting Faretta, 422 U.S. at 835).

This Court's review of the record demonstrates the Missouri State court correctly applied the above standard. During a February 3, 2006, hearing on Petitioner's motion to proceed pro se, Judge Larry Kendrick of the St. Louis County Circuit Court explained that before he allowed Petitioner to represent himself, he had to conduct a "penetrating and comprehensive determination" as to whether Petitioner was waiving his...