Harding v. Lewis

• Decision Date: 21 December 1987
• Docket Number: No. 86-2057,86-2057
• Citation: 834 F.2d 853
• Parties: Donald Eugene HARDING, Petitioner-Appellant, v. Samuel A. LEWIS, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 853

834 F.2d 853

Donald Eugene HARDING, Petitioner-Appellant, v. Samuel A. LEWIS, Respondent-Appellee.

No. 86-2057.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 11, 1987.

Decided Dec. 21, 1987.

Francisco Leon, Tucson, Ariz., for petitioner-appellant.

Jack Roberts, Asst. Atty. Gen., Dept. of Law, Phoenix, Ariz., for respondent-appellee.

Appeal from the United States District Court for the District of Arizona.

Before POOLE and BOOCHEVER, Circuit Judges, and DIMMICK, ^* District Judge.

BOOCHEVER, Circuit Judge:

Harding appeals the district court's dismissal of his petition for a writ of habeas corpus, 641 F.Supp. 979. He contends that he was not competent to waive his right to counsel at his criminal trial and that his waiver was not made knowingly and intelligently. He also argues that he waived his right to counsel at the recommendation of his attorney, Dan Cooper, and that this advice constitutes per se ineffective assistance of counsel. We affirm.

FACTS

The evidence that Harding brutally and callously murdered two men was overwhelming. District Judge Marquez detailed that evidence in his order denying Harding a writ of habeas corpus and we set forth that summary in the appendix to this opinion.

Harding was convicted of two counts of first degree murder, two counts of armed robbery, two counts of kidnapping, and one count of theft. He was sentenced to death on each of the murder convictions. For two years while awaiting trial, Harding was represented by a public defender, Dan Cooper. During this period, Cooper filed thirty motions seeking, inter alia, to exclude evidence, to delay the trial, and to develop an insanity defense. These efforts proved futile. Cooper anticipated this and advised Harding that his only chance was to represent himself with the hope of injecting fundamental error in the trial, which would result in reversal of his convictions on appeal. On March 15, 1982, Harding asked the state court to allow him to represent himself on an unrelated charge of deadly assault by a prisoner. Judge Gin, the state trial judge in both the assault case and the present case, questioned Harding about his education, his experiences with the criminal justice system, and the reasons for his wanting to defend himself. He also warned Harding of the serious penalty he faced if convicted. The court allowed Harding to represent himself on the assault charge and appointed Cooper as advisory counsel at Harding's request.

On March 23, 1982, eight days after Harding made his request to represent himself on the assault charge, Cooper asked Judge Gin to allow him to withdraw from the present case because Harding wanted to act as his own attorney. Judge Gin reviewed Harding's statements about his education and his familiarity with criminal procedure and warned him that he might receive the death penalty if convicted of the murders. The judge, however, did not specifically refer to the difficulties faced by a lay person representing himself. Harding confirmed the judge's review of his background and stated he was absolutely certain he wanted to represent himself. Judge Gin denied the request, however, when Harding refused to sign the waiver of counsel form because it included the appointment of Cooper as advisory counsel.

Cooper apparently told Harding that Judge Gin would relieve Cooper as counsel only if Harding threatened him. Harding told Cooper to consider himself threatened. On April 15, 1982, Harding renewed his request to represent himself. Cooper filed a motion to withdraw for ethical reasons at approximately the same time. The presiding judge of the state court, Judge Druke, held a hearing with Cooper in his chambers and off the record. Judge Druke informed Judge Gin that Harding had told Cooper that he (Harding) intended to commit a crime and Harding had refused to waive any potential conflict of interest that might arise during Cooper's continued representation.

Judge Gin discussed with Harding his desire to represent himself and whether Harding would have to accept advisory counsel. The judge then permitted Harding to represent himself but appointed Cooper as advisory counsel, stating that "the problem of threats" would persist no matter who represented Harding or acted as advisory counsel. Cooper continued to pursue some of the pretrial motions he had filed and served as advisory counsel throughout the trial, which started on April 20, 1982.

Harding was convicted on April 27, 1982. The court held a hearing on aggravating and mitigating circumstances for purposes of sentencing on May 26, 1982. The court had ordered a psychiatric evaluation before the hearing, but Harding would not speak to the doctor. The judge twice offered to reappoint counsel, but Harding refused. At the hearing the court again offered to appoint counsel and to permit more time to marshal evidence of mitigating circumstances. Harding declined counsel and presented no mitigating evidence. The court found four aggravating circumstances. Harding was sentenced to death on each of the murder counts. The Arizona Supreme Court affirmed the convictions and the sentences, State v. Harding, 137 Ariz. 278, 670 P.2d 383 (1983); the Supreme Court of the United States denied certiorari, 465 U.S. 1013, 104 S.Ct. 1017, 79 L.Ed.2d 246 (1984). Harding filed for post-conviction relief under Arizona's rules of criminal procedure. Ariz.R.Crim.P. 32. The state court held an evidentiary hearing on the issue of whether Harding was denied a fair trial or effective assistance of counsel. The court denied relief and a subsequent petition for reconsideration; the Arizona Supreme Court declined to review the decision. On October 16, 1985, Harding filed an amended petition for a writ of habeas corpus. The district court dismissed the petition.

STANDARD OF REVIEW

We review de novo the district court's decision on a petition for a writ of habeas corpus. Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). Factual findings made after a hearing by a state court in a proceeding for post-conviction relief are entitled to a presumption of correctness under 28 U.S.C. Sec. 2254(d).

ANALYSIS

Competency to Waive Counsel

Due process requires that a state court initiate a hearing on the defendant's competence to waive counsel whenever it has or should have a good faith doubt about the defendant's ability to understand the nature and consequences of the waiver, or to participate intelligently in the proceedings and to make a reasoned choice among the alternatives presented. See Chavez v. United States, 656 F.2d 512, 515 (9th Cir.1981); Sailer v. Gunn, 548 F.2d 271, 275 (9th Cir.1977); Sieling v. Eyman, 478 F.2d 211, 215 (9th Cir.1973). A good faith doubt exists when there is substantial evidence of incompetence. United States v. Veatch, 674 F.2d 1217, 1223 (9th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2013, 72 L.Ed.2d 469 (1982). Evidence of incompetence includes, but is not limited to, a history of irrational behavior, medical opinion, and the defendant's behavior at trial. See Drope v. Missouri, 420 U.S. 162, 180, 95 S.Ct. 896, 908, 43 L.Ed.2d 103 (1975); Moore v. United States, 464 F.2d 663, 666 (9th Cir.1972). Whether a good faith doubt should have existed in the trial court's mind is not a factual finding entitled to the presumption of correctness under 28 U.S.C. Sec. 2254(d). See Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982) (per curiam).

Cooper moved to have Harding examined to determine if he was competent to stand trial and to investigate his mental condition at the time the crimes were committed with the view of developing an insanity defense. At the hearing on this motion, Cooper alleged that Harding suffered from brain disease and epileptic seizures but assured the state court that he was competent to stand trial. On March 5, 1981, Harding moved to withdraw his motion As the district court points out, there was much evidence of Harding's competence to waive counsel that allayed any doubts created by the motion for a mental examination. Harding was responsive and rational at trial. He objected whenever the court or the prosecutor addressed their remarks to advisory counsel rather than to him. He expressed himself boldly and effectively when he chose to do so. During Harding's efforts to dismiss Cooper and represent himself, he wrote a letter to Cooper. The letter acknowledged Cooper's "diligent efforts" and his pursuit of every opportunity to build a defense; it also admitted that there was no good defense and that he would be convicted no matter who defended him. Harding's actions at trial and his written statements to Cooper indicate that Harding understood the consequences of waiving his right to counsel, made a reasoned choice from the limited alternatives available to him, and possessed sufficient intelligence to participate in the proceedings when he chose to do so. The state court did not err when it permitted Harding to represent himself without a hearing on his competence.

for examination of his mental condition; the motion was denied. The court appointed two psychiatrists to examine Harding but he was uncooperative with them. The state court found Harding competent to stand trial and Harding does not appeal that finding.

Knowing and Intelligent Waiver

The trial court must carefully balance the defendant's right to self-representation and its duty to ensure that defendant's waiver of the right to counsel is made with full awareness of the risks. United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982). The preferable procedure for determining whether the waiver is made knowingly and intelligently is to discuss with the defendant in open court his understanding of the charges, the possible penalties, and the dangers of self-representation. United States v. Dujanovic, 486 F.2d 182, 188 (9th Cir.1973)....