Fischetti v. Johnson

• Decision Date: 22 September 2004
• Docket Number: No. 02-4026.,02-4026.
• Citation: 384 F.3d 140
• Parties: Vincent FISCHETTI, Appellant v. Philip JOHNSON; Gerald J. Pappert.<SMALL><SUP>*</SUP></SMALL>
• Court: U.S. Court of Appeals — Third Circuit

384 F.3d 140

Vincent FISCHETTI, Appellant v. Philip JOHNSON; Gerald J. Pappert.^*

No. 02-4026.

United States Court of Appeals, Third Circuit.

Argued March 24, 2004.

Filed September 22, 2004.

Appeal from the United States District Court for the Western District of Pennsylvania, Gary L. Lancaster, J.

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Christine H. Nooning (Argued), Pittsburgh, PA, for Appellant.

Stephen A. Zappala, Jr., District Attorney, Michael W. Streily, Deputy District Attorney, Ronald M. Wabby, Jr. (Argued), Assistant District Attorney, Office of the District Attorney, Pittsburgh, PA, for Appellee.

Before ROTH, AMBRO, and CHERTOFF, Circuit Judges.

OPINION OF THE COURT

CHERTOFF, Circuit Judge.

Vincent Fischetti appeals a final order of the District Court denying his petition for habeas corpus. Fischetti argues, inter alia, that he was denied his Sixth Amendment right to counsel when he was tried in state court without representation by an attorney. Before facing trial for the second time on burglary charges, Fischetti declared to the state trial judge that he wanted to fire his appointed counsel-his third — and postpone proceedings so that new counsel could be named. The judge gave Fischetti the choice of continuing with his appointed attorney, having the appointed attorney assist as co-counsel, or representing himself. When Fischetti refused all options, the state trial court determined that Fischetti was capable of representing himself and had him proceed pro se. Fischetti was convicted of thirty-eight counts of burglary.

This case presents two principal issues:

First, when a criminal defendant unreasonably rejects appointed counsel and also rejects the option of proceeding pro se, is it proper for the trial court to force that defendant to represent himself?

Second, if the correct course for the trial court here would have been to compel Fischetti to continue with his appointed counsel, was the court's actual decision to compel the defendant to proceed without counsel "contrary to ... clearly established federal law, as determined by the Supreme Court of the United States" or an "unreasonable application" of that law, so that habeas relief under 28 U.S.C. § 2254(d)(1) is authorized?

We conclude that the state trial court should not have compelled Fischetti to represent himself. We also conclude, however, that the trial court's decision did not violate clearly established federal law as established by the Supreme Court and did not unreasonably apply that law.

We are compelled to reverse the District Court's judgment in part on one other ground, however. The state court's admission of prior testimony without a preliminary determination that the witnesses were unavailable for trial infringed on Fischetti's Sixth Amendment right to confront witnesses. We will remand the case to the District Court for further proceedings on this ground alone.

I.

This appeal caps a long and circuitous litigation that has spanned over twenty years in Pennsylvania state court and federal court. On May 6, 1981, Fischetti was convicted by a jury in the Court of Common Pleas, Allegheny County, Pennsylvania, of one count of resisting arrest and a total of forty-three counts of burglary. He was subsequently sentenced to twenty-two and one-half years to two hundred and twenty years of imprisonment. Over the next three years, Fischetti filed a series of appeals and post-conviction hearing petitions contesting his 1981 conviction in Pennsylvania state court. Fischetti filed his first pro se petition for habeas corpus in District Court in 1984, which was dismissed the following year.

On March 13, 1991, Fischetti filed his second pro se motion for post conviction collateral relief. Attorney Ralph Karsh was appointed as Fischetti's second counsel. In November of 1992, Karsh filed a petition to withdraw as counsel, citing irreconcilable differences. The trial court appointed Thomas Fitzgerald to represent Fischetti in post-conviction proceedings. A series of hearings was held before the trial court, and on December 21, 1993, the trial court granted the relief requested in the post-conviction petition, dismissed three of the burglary charges, and granted a new trial on the remaining counts. The case was assigned to the Honorable Raymond A. Novak for trial. On June 12, 1994, Fischetti filed a pro se petition to dismiss his second court-appointed counsel, Fitzgerald, and to have new counsel appointed. On June 15, 1994, Fischetti filed a pro se petition to Dismiss Pursuant to Pennsylvania Rule of Criminal Procedural 1100.

In the following months, the trial court and Superior Court of Pennsylvania reviewed the blizzard of motions filed by Fischetti, which were each denied in turn.¹ On November 18, 1994, Fischetti appeared in trial court, refused to agree to a trial date, and asserted that he did not want Fitzgerald to serve as his counsel. That day, Judge Novak sent a letter to Fischetti rejecting Fischetti's complaint that Fitzgerald was not acting in his best interest. On December 29, 1994, Judge Novak denied Fischetti's request for new counsel and gave him three choices: continue to have Fitzgerald represent him, represent himself with Fitzgerald assisting as co-counsel, or represent himself without co-counsel. Fischetti refused the first two options and claimed that he could not represent himself. Judge Novak determined that Fischetti was capable of representing himself and set the trial date for April 3, 1995. Meanwhile, in the midst of these proceedings, Fischetti filed a pro se Petition for Writ of Habeas Corpus in United States District Court on December 20, 1994. On March 14, 1995, the District Court dismissed his petition and denied a certificate of probable cause.

On May 1, 1995, a jury trial began before Judge Novak. Throughout the proceedings, Fischetti sat mute in protest of the court order that he proceed pro se. On May 5, 1995, he was found guilty of thirty-eight counts of burglary. He received a sentence on two of the counts totaling twenty to forty years of imprisonment.²

Fischetti filed a series of appeals contesting his conviction, some pro se and some through his former counsel Fitzgerald,³ as well another appointed counsel Helen Lynch. On December 30, 1997, the Superior Court affirmed the judgment of the trial court. The Supreme Court of Pennsylvania denied Fischetti's petition for Allowance of Appeal on June 28, 1998. On February 1, 1999, Fischetti filed a pro se Motion for Post Conviction Collateral Relief. In the following months, three more new attorneys were appointed for Fischetti; his first and second court-appointed appellate attorneys withdrew. On June 21, 2000, the trial court entered an order dismissing Fischetti's petition. Fischetti timely filed a notice of appeal with the Superior Court, which affirmed the judgment of the trial court on June 21, 2001. On March 20, 2002, the Pennsylvania Supreme Court denied Fischetti's petition for appeal.

On May 22, 2002, Fischetti filed, through counsel, his habeas petition in the District Court. On September 30, 2002, the District Court issued an order adopting the Magistrate's Report and Recommendation to dismiss Fischetti's petition and to deny a certificate of appealability. This appeal followed. We granted a certificate of appeal on the following questions: (1) "whether appellant was denied his Sixth Amendment right to counsel when the second trial court required appellant to represent himself at trial" and (2) "whether the remaining three claims ... should properly be considered defaulted, as procedural mistakes during the second trial, when appellant acted as his own counsel, appear to be the basis of the procedural default for all three remaining claims."

II.

A.

The thrust of this appeal is Fischetti's claim that he was denied his Sixth Amendment right to counsel at trial when he was not granted new appointed counsel and was left to represent himself. Although we hold that error was committed, it was not error of a magnitude to warrant vacating the conviction on our habeas review.

Fischetti placed the trial court in an untenable position when, on the eve of trial, he refused to continue with his then-current counsel in any capacity and also refused to represent himself. This action was part of a pattern of uncooperative conduct through which Fischetti repeatedly complained about counsel and sought to delay or derail his second trial. The trial court investigated Fischetti's complaints about his appointed counsel and determined them to be unfounded.⁴ Fischetti nevertheless expressed unwillingness to have his competent and diligent third appointed counsel continue in any capacity and sought to postpone the aging case once again. Worse, he offered the judge no assurance that a fourth appointment of counsel would finally satisfy him.

The trial judge refused to appoint new counsel. This was understandable.

A defendant's right to counsel is not without limit and cannot be the justification for inordinate delay or manipulation of the appointment system. United States v. McFadden, 630 F.2d 963, 972 (3d Cir.1980). There is ample precedent for the proposition that the need for an orderly and expeditious trial may require that a defendant proceed with counsel not of his preference. See, e.g., Wheat v. United States, 486 U.S. 153, 164, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); Morris v. Slappy, 461 U.S. 1, 12, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983); Fuller v. Diesslin, 868 F.2d 604, 607 (1989). Faced with this situation, therefore, we have previously held that if the court has "made the appropriate inquiries and has determined that a continuance for substitution of counsel is not warranted, the court can then properly insist that the defendant choose between representation by his existing counsel and proceeding pro se." United States v. Welty, 674 F.2d 185, 188 (3d Cir.1982). For these reasons, the trial judge properly rejected...