Gordon v. Taylor
| Decision Date | 09 June 1993 |
| Docket Number | Civ. A. No. 91-566 LON. |
| Citation | 824 F. Supp. 492 |
| Parties | Sylvester GORDON, Petitioner, v. Stanley W. TAYLOR, Acting Warden, et al., Respondents. |
| Court | U.S. District Court — District of Delaware |
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Sylvester Gordon, pro se.
Loren C. Meyers, Dept. of Justice, Wilmington, DE, for respondents.
The petitioner, Sylvester Gordon ("Gordon"), brings this pro se petition for federal habeas corpus relief pursuant to 28 U.S.C. § 2254 on the ground that the record of his state court trial fails to establish that he effectively waived his Sixth Amendment right to counsel when he elected to represent himself. Gordon has presented this claim to the Delaware Supreme Court and thus has exhausted state remedies. See Smith v. Digmon, 434 U.S. 332, 98 S.Ct. 597, 54 L.Ed.2d 582 (1978). For the reasons that follow, the Court determines that Gordon is not entitled to relief and denies the petition.
On June 13, 1989, Gordon was convicted by a Delaware Superior Court jury of two counts of delivery of marijuana, one count of fraudulent delivery of a non-controlled substance and one count of second degree conspiracy. Because of his prior record of multiple convictions, Gordon was sentenced to a life imprisonment term under Delaware's habitual offender statute, 11 Del.C. § 4214.
The charges against Gordon resulted from an undercover operation conducted by the Wilmington and Dover Police Departments. A police officer with the Dover Police Department, acting in an undercover role, met Gordon and established a relationship with him over a period of time. During this period, Gordon, at the undercover officer's request, secured marijuana from a third party and sold it to the officer. Gordon further agreed to introduce the officer to a third party who would sell cocaine directly to the officer. After that effort failed, Gordon arranged a sale of counterfeit drugs from another third party to the undercover officer. Based on these activities, Gordon was indicted. Upon Gordon's direct appeal, the Delaware Supreme Court affirmed the convictions. Gordon v. State, 599 A.2d 412 (Del. 1991).
During his pre-trial proceedings, Gordon was represented successively by two assistant public defenders. Gordon's second public defender, Richard Baumeister ("Baumeister"), represented him until the completion of jury selection on May 8, 1989, the then latest of successive dates scheduled for Gordon's trial.1 Gordon insisted that each of his counsel rely upon the defense of entrapment. Both counsel attempted to discourage Gordon from pursuing the entrapment defense because it required the implicit admission that he committed the offenses and it was counsels' belief that such a defense stood little chance of success.
Before jury selection began that day, Baumeister advised the presiding Delaware Superior Court judge that Gordon wished to represent himself at trial. After jury selection was completed, the judge held a hearing to consider Gordon's application to proceed pro se. At the hearing, during a colloquy conducted outside of the presence of the prosecutor, Gordon told the judge that he wanted to present an entrapment defense, but his trial counsel had insisted that such a defense would be unavailing. Gordon informed the judge that he wished to represent himself because he was dissatisfied with counsel's unwillingness to present an entrapment defense. Gordon also told the judge that he did not have any confidence that his counsel would forcefully represent him.
After briefly describing his entrapment defense, Gordon referred to the state's intention to recommend to the court that if convicted Gordon be sentenced as a habitual offender. In response, the judge stated he understood that based on Gordon's previous convictions, if Gordon were to be convicted of two counts of delivery of marijuana, the court would have no discretion in sentencing under the habitual offender statute and would be required to impose a mandatory life sentence. The judge also discussed the state's outstanding plea offer for conviction of a lesser count which, if accepted by Gordon, permitted the court some discretion in his sentence under the habitual offender statute. The judge informed Gordon that a conviction on the charge of fraudulent delivery and nothing else would give the court the choice of a life imprisonment sentence or something less. Gordon acknowledged that he was aware of the nature and severity of the circumstances facing him related to his potential convictions.
Baumeister then told the judge that he had advised Gordon of the hazards and pitfalls involved in advancing an entrapment defense. From the record it appears that Baumeister and his predecessor gave Gordon detailed advice regarding his defense. According to Baumeister, both lawyers had also informed Gordon that, in their opinion, entrapment was not a viable defense. Gordon, however, had rejected their advice and told Baumeister that morning that he wanted to proceed pro se.
Gordon proceeded to provide detailed information to the judge about his entrapment defense, including which witnesses he wanted to call and the testimony he wanted to elicit from them. During this portion of the colloquy, the judge advised Gordon that the defense of entrapment required Gordon to admit that he committed the crimes charged in the first instance.2 Gordon forcefully indicated that he understood. Gordon then told the judge that he was not prepared to go forward that day and asked for a continuance.
At this point, Gordon also reiterated his desire to represent himself. The judge informed Gordon he had a choice of either Baumeister representing him or he could represent himself. According to the judge, there was no basis to discharge Baumeister and appoint substitute counsel.3 After the previously-described events transpired, this colloquy took place:
After further discussion regarding Gordon's application for a continuance,4 the following colloquy ensued:
Gordon's rescheduled trial began June 12, 1989, before a different Superior Court judge. Before the trial started, the presiding judge informed Gordon that although he was not an attorney, in conducting his own defense he would be required to comply with the rules. Throughout the trial proceedings, Gordon represented himself and Baumeister was present to assist Gordon as standby counsel.
Gordon's basis for federal habeas relief is that the judge failed to conduct a sufficient inquiry to determine if he had effectively waived his Sixth Amendment right to counsel at trial. The Sixth and Fourteenth Amendments guarantee that "no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel." Faretta v. California, 422 U.S. 806, 832, 95 S.Ct. 2525, 2539, 45 L.Ed.2d 562 (1975) (citing Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972)). It is well established, however, that the Sixth Amendment not only guarantees the right to have the assistance of counsel for the accused's defense, it also guarantees the accused's independent right of self-representation. See Faretta, 422 U.S. at 819-20 & n. 15, 95 S.Ct. at 2533-34 & n. 15; Government of Virgin Islands v. James, 934 F.2d 468, 470 (3d Cir.1991); Pitts v. Redman, 776 F.Supp. 907, 914 (D.Del.1991), aff'd without op., 970 F.2d 899 (3d Cir.), cert. denied, ___ U.S. ___, 113 S.Ct. 611, 121 L.Ed.2d 545 (1992). Further, a court may, even over objection of the accused, appoint standby counsel to aid the accused if and when the accused requests assistance. Faretta, 422 U.S. at 835-36 n. 46, 95 S.Ct. at 2541 n. 46 (citation omitted).
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