Sanchez v. Mondragon, 86-2295

• Decision Date: 06 October 1988
• Docket Number: No. 86-2295,86-2295
• Citation: 858 F.2d 1462
• Parties: Andrew A. SANCHEZ, Petitioner-Appellant, v. Eloy MONDRAGON, Warden, Southern N.M. Correction Facility; Attorney General of the State of New Mexico, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1462

858 F.2d 1462

Andrew A. SANCHEZ, Petitioner-Appellant, v. Eloy MONDRAGON, Warden, Southern N.M. Correction Facility;

Attorney General of the State of New Mexico,

Respondents-Appellees.

No. 86-2295.

United States Court of Appeals, Tenth Circuit.

Oct. 6, 1988.

Tova Indritz, Federal Public Defender, Albuquerque, N.M., for petitioner-appellant.

M. Katherine Zinn, Asst. Atty. Gen. (Dale Morritz, Asst. Atty. Gen., on the brief), Santa Fe, N.M., for respondents-appellees.

Before SEYMOUR, McWILLIAMS and MOORE, Circuit Judges.

SEYMOUR, Circuit Judge.

Petitioner Andrew A. Sanchez appeals from the order of the United States District Court for the District of New Mexico denying with prejudice his petition for a writ of habeas corpus. The district court found that the state trial judge adequately advised Sanchez of his right to counsel and of the dangers of self-representation, thus rendering Sanchez's decision to represent himself voluntary, and knowing and intelligent. For the reasons set out below, we reverse. ¹

I.

In June 1984, Sanchez was indicted on several counts related to a residential burglary and his subsequent apprehension by private citizens in the neighborhood. Sanchez was unhappy with his public defender's performance and sought either a new attorney or the opportunity to represent himself. ² The court allowed Sanchez to serve as his own lawyer, although a public defender remained available to assist him. ³ Sanchez pled not guilty and proceeded to trial.

The Government presented evidence that a local resident saw three people coming out the back door of a neighborhood house. They looked around and started running. Two went in one direction and one headed the opposite way. The resident tried to follow the lone runner in his van, but the man began running between houses. The resident saw two friends on the street whom he told that a burglar would soon emerge from between houses. Moments later Sanchez came toward them and the two men wrestled him to the ground. Although Sanchez resisted, the two local men were able to restrain him until the police arrived. They removed a knife and screwdriver from his pockets and gave the items to the police. Sanchez testified that his car had broken down in the neighborhood and that he was running only because he believed the other men were chasing him. He testified that he used the screwdriver to work on his car. His sister confirmed that his car had broken down in the neighborhood. The court submitted four counts to the jury, battery, possession of a burglary tool, aggravated burglary, and larceny. The jury found Sanchez guilty on the battery and possession of a burglary tool counts but acquitted him of aggravated burglary and larceny. He appealed his conviction in state court and lost.

Sanchez then filed this petition for a writ of habeas corpus alleging that the trial court's inquiry into his decision to waive his right to counsel and to exercise his right to proceed pro se was inadequate, thereby violating his Sixth Amendment right to counsel. He also alleged that a jury instruction improperly created a presumption that one element of the crime had been fulfilled. A federal magistrate held that the state judge had fulfilled the constitutional requirements necessary to satisfy the Sixth Amendment when a defendant desires to represent himself, and that the challenged jury instruction was not error. The district court agreed. Because of our resolution of the Sixth Amendment issue, we need not reach the jury instruction claim.

II.

After briefs were filed in this appeal, we decided United States v. Padilla, 819 F.2d 952 (10th Cir.1987), where we refined the appellate standard for reviewing a trial court's handling of a self-representation request under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). At oral argument and in its supplementary brief on mootness, the State suggested that because a habeas petitioner bears the burden of establishing a constitutional violation, the analysis we applied in Padilla, a direct appeal, may not be fully applicable here.

The State correctly contends that a habeas petitioner bears the burden of establishing by a preponderance of the evidence facts sufficient to show a constitutional violation. See Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S.Ct. 1019, 1024-25, 82 L.Ed. 1461 (1938). Under Faretta, a defendant intending to represent himself must 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.' " 422 U.S. at 835, 95 S.Ct. at 2541 (emphasis added). Padilla merely discusses how the constitutional standard recognized in Faretta should be assessed. The petitioner's burden of proof in a collateral proceeding does not alter this applicable legal standard.

The State argues that in a collateral attack the petitioner must affirmatively prove that his waiver of counsel was not knowing and voluntary. See Johnson, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461; Bortmess v. Rodriguez, 375 F.2d 113 (10th Cir.1967). We interpret this as an argument that showing the record is inadequate under Padilla is not sufficient. The Supreme Court, however, has specifically held that in a Sixth Amendment waiver of counsel case on collateral review "it is incumbent upon the state to prove 'an intentional relinquishment or abandonment of a known right or privilege.' " Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977). In addition, the Court has considered the scope of a defendant's right to represent himself under Faretta in a collateral attack, suggesting that analysis of Faretta waiver-of-counsel claims on collateral review is identical to that appropriate on direct appeal. See McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (establishing standard for determining when intervention of stand-by counsel violates right to self-representation). Finally, the Third Circuit has held that the same waiver standard applies to Faretta issues on direct appeal and habeas corpus, see Piankhy v. Cuyler, 703 F.2d 728, 731 n. 3 (3d Cir.1983) (citing Brewer ), and has analyzed such issues on collateral review in a fashion similar to that which we have applied to direct appeals. See McMahon v. Fulcomer, 821 F.2d 934 (3d Cir.1987).

The Third Circuit's approach is undoubtedly correct, because once the defendant establishes the record does not reflect that he was adequately informed of the hazards of self-representation, he has met his burden of showing a constitutional violation under Faretta. United States v. Williamson, 806 F.2d 216, 220 (10th Cir.1986), is not to the contrary. In Williamson, a collateral challenge to a federal conviction, we recognized that "[w]here the record is silent, no presumption can arise that the accused waived his right to counsel.... However, in the instant case ... the record is [not] silent on whether the court explained [the defendant's] Sixth Amendment rights to him." 806 F.2d at 219-20. Relying on pre-Brewer case law, we carefully explained Williamson's argument to be that factors outside the state's control (e.g., his youth, pressure from parents and co-defendant, etc.) made his waiver of counsel involuntary. Id. at 219. Faretta 's requirement that there be a showing on the record that the defendant was "made aware of the dangers and disadvantages of self-representation" was satisfied. 422 U.S. at 835, 95 S.Ct. at 2541. Where the defendant is relying on matters outside the knowledge of the state to support his claim of involuntariness, it makes sense that he should bear the burden of proving "that his acquiescence was not made with sufficient understanding of his rights." Williamson, 806 F.2d at 220. Courts may not "devine a defendant's motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision." Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 521, 93 L.Ed.2d 473 (1986). However, where the record demonstrates that the defendant was not adequately informed of his rights under Faretta, Brewer requires the state to prove that the defendant voluntarily and intelligently waived his right to counsel. ⁴

Finally, we have found no relevant authority suggesting that we should apply a different legal standard to properly preserved Faretta issues brought collaterally than we previously have applied to similar claims on direct appeal. ⁵ We therefore apply to this case the standards we developed in Padilla and our other prior Faretta cases.

III.

In order for a defendant to invoke his Faretta right to represent himself, he must waive his Sixth Amendment right to counsel. "[T]he trial judge has a duty to determine whether a proper waiver has been made, bearing in mind the strong presumption against waiver of this constitutional right." United States v. Gipson, 693 F.2d 109, 111 (10th Cir.1982). In Padilla, we held that Faretta requires two separate examinations. First, we must determine whether the defendant voluntarily chose self-representation. The central question is whether the defendant knew of his right to competent counsel. A choice "between incompetent or unprepared counsel and appearing pro se" is "a dilemma of constitutional magnitude." Padilla, 819 F.2d at 955. The choice to proceed pro se cannot be voluntary in the constitutional sense when such a dilemma exists. Second, we must determine whether the defendant knowingly and intelligently waived his right to counsel. "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation," Faretta, 422 U.S. at 835, 95 S.Ct. at 2541 "the trial judge should conduct an inquiry sufficient to establish a defendant's knowledge and understanding of the factors" relevant to his decision to waive counsel. Padilla, 819 F.2d at 959.

We begin...