Werth v. Bell

• Decision Date: 28 August 2012
• Docket Number: No. 10–2183.,10–2183.
• Parties: Gerald L. WERTH, Petitioner–Appellant, v. Thomas BELL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

692 F.3d 486

Gerald L. WERTH, Petitioner–Appellant,
v.
Thomas BELL, Warden, Respondent–Appellee.

No. 10–2183.

United States Court of Appeals,
Sixth Circuit.

Argued: July 24, 2012.
Decided and Filed: Aug. 28, 2012.

[692 F.3d 488]

ARGUED:Jeffrey A. Mandell, Jones Day, Washington, D.C., for Appellant. Raina I. Korbakis, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. ON BRIEF:Jeffrey A. Mandell, Jones Day, Washington, D.C., for Appellant. Raina I. Korbakis, Office of the Michigan Attorney General, Lansing, Michigan, for Appellee. Gerald L. Werth, Adrian, Michigan, pro se.

Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

OPINION
BOGGS, Circuit Judge.

Gerald Werth, charged with robbing a Flint, Michigan convenience store, pleaded guilty to breaking and entering with the intent to commit larceny and to possession of burglar's tools. Before he pleaded guilty, however, Werth attempted no fewer than seven times to assert his Sixth Amendment right to self-representation. The trial court denied his request summarily the first six times. The seventh time, the judge explained the nature of the charges against Werth, told him that she could not give him special training or treatment, and denied his request without giving him an opportunity to speak. Some three weeks later, the judge denied Werth's subsequent motion to withdraw his guilty plea, in which he argued that his plea was the product of duress because, among other things, the court would not let him proceed pro se. After being sentenced, Werth filed an application for leave to appeal.¹ Both the Michigan Court of Appeals and the Michigan Supreme Court denied his application in brief summary orders that referred to the merits of his claims. The district court, adopting a magistrate judge's recommendation, denied Werth's petition for a writ of habeas corpus. Applying AEDPA deference, it held that Werth waived his self-representation claim by pleading guilty. The district court granted a certificate of appealability on the question of whether the Michigan courts violated clearly established federal law in holding that a defendant may not challenge the denial of his request to represent himself, after entering a knowing and voluntary unconditional guilty plea. For the reasons that follow, we affirm.

I

Around 5:30 a.m. on November 7, 2007, someone broke into Khirfan's Blue Collar Market, a business located near a General Motors plant in Flint, Michigan. Investigation led to charging Werth with breaking and entering with the intent to commit larceny and with possession of burglar's tools. Because he had six prior felony

[692 F.3d 489]

convictions, Werth faced a maximum sentence of life in prison on each of the two counts. At arraignment, he pleaded not guilty to both, and the trial court set a final pretrial-motion cutoff date of February 8, 2008, and a trial date of February 13, 2008.

At the February 8 hearing, Werth began to ask for permission to represent himself, pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). He did so both in a written motion that he instructed his lawyer to file and orally in open court.² Werth believed that Crystal Davidson, owner of the trailer in which both Werth and the stolen property were found, had “purged [sic] herself” during his preliminary examination, and Werth wanted his lawyer to subpoena cell-phone records as proof. Werth's then-attorney, Roger Lange, did not understand the reason for his client's request, and took no action. “[T]hat,” Werth explained, “[is] why I want to represent myself.” The trial judge's reaction to this initial request was to probe why Werth wanted the phone records in the first place.³ The judge suggested that, if “we take care of the other issues that [Werth] wants raised,” she did not need to address his request to represent himself. Although Lange called Werth's request “a wild goose chase,” the trial judge postponed the trial for sixty days to give Werth an opportunity to obtain Davidson's cell-phone records. Still, Werth persisted in his self-representation request, telling the judge, “I do not want Mr. Lange representing me.... I'll represent myself, your Honor.” This time, the judge responded: “You know what, there's a test involved. And I don't think that you're going to meet the test.” After a brief discussion about the logistics of preparing a subpoena for Davidson's records, Werth, undeterred, told the court, “I want an adjournment because ... I do want to present this [the phone records] to the Court and I do want to represent myself.” The court replied: “I'm not .... prepared to allow that to happen at this time.”

After another delay related to cell-phone records, the court held a final pretrial conference on April 14, 2008. There, Werth again asked to represent himself. Again, his requests were both written and oral. He sent a written “communication ... to the Court entitled motion to grant speedy trial .... [that contained a] request[ ] to represent himself and ... to withdraw his counsel in this case and represent himself in this matter.” Before the hearing, “[h]e indicated [to his then-attorney Mark W. Latchana] ... that he wanted to tell the Court that he wanted to represent himself.” Attorney Latchana, in response, “indicated to [Werth] that [he] would be happy to abstain [as his] counsel and assist him in whatever way [he] could.” Then, during the hearing, Werth said to the court:

I have a constitutional right and a state right to represent myself. Also, Michigan Court Rule 6.005 states that I have a right to court appointed counsel. I also have a right under that court rule to waive that counsel. Mr. Latchana has done nothing for me. There should have been motions filed into this Court all ready [sic]. I don't believe the prosecutor can make her case.

The judge's immediate response focused only on Werth's last statement about the sufficiency of the evidence against him. Werth, though, did not let the self-representation

[692 F.3d 490]

issue lie. He instead persisted, stating: “So, your honor, you're saying that I—I can't exercise my constitutional right to represent myself.” The following dialogue ensued:

THE COURT: No, I'm not going to do it. Let me first tell you, I'm required under the court rule. As you're so familiar with it. So you understand that right—

THE DEFENDANT: I'm not saying I'm familiar with it, your Honor. I just want to represent myself. I have that right. And I'm asking to exercise that right. That's all.

THE COURT: That's only if I can count on you not to behave improperly and I can't.

THE DEFENDANT: How am I going to—your Honor, I have a right to do this.

THE COURT: Count one, let me go through this. Count one, breaking and entering a building with intent to commit a larceny. That's a felony. Maximum sentence by statute ten years. With sentence enhancement, life. Count two, possession of burglar tools, also a felony. Maximum statutory penalty ten years. With sentence enhancement, life. Those are the mandatory facts. You were on parole. The sentence must be consecutive to the sentence you're now serving. And then of course, as you're clearly aware, there are multiple risks involved with self representation including—

THE DEFENDANT: And I'm willing to take those risks, your Honor.

THE COURT: —lack of knowledge of the rules of evidence and the court rules. There are no ways that I can give you special training overnight. Nor can I give you any special treatment once we go to trial. You'd be held to the same standards [the prosecutor] is expected to do in here to with respect to the court rules and the rules of evidence. And the Court is not in a position under the circumstances, to allow you to represent yourself. Now that's the ruling of the Court, denied.

Trial began the next day, Tuesday, April 15, 2008. On Wednesday, April 16, Werth decided to plead guilty. The plea agreement provided that, although Werth was guilty of both counts, he would be sentenced as though he were a “habitual offender two,” not a “habitual offender four.” This meant that Werth faced statutory-maximum sentences of fifteen years, not life, on each count. Before accepting the plea, the judge engaged Werth in a lengthy colloquy, explaining that the plea would act as a waiver of his rights to trial by jury, to be presumed innocent until proven guilty, to make the State prove his guilt beyond a reasonable doubt, to call witnesses in his favor and question witnesses against him, to remain silent, not to have his silence used against him, and to testify on his own behalf. The court also ensured that Werth understood that he could not claim that the plea “was the result of a promise or threat that was not disclosed right now on this record during this plea taking proceeding[.]” The court did not tell Werth that he would waive (or might be waiving) an appeal on his denial-of-self-representation claim if he pleaded guilty. After establishing a factual basis, the court accepted the plea, finding that the agreement was “made understandingly, voluntarily, accurately, and knowingly.” The court scheduled sentencing for Monday, May 19.

In motions dated April 30, 2008, and May 6, 2008, Werth, in propria persona, and his counsel each moved to withdraw the guilty plea in separate motions. Werth's lengthy motion claimed that, because he was not allowed to represent

[692 F.3d 491]

himself and because Latchana did not comply with a number of requests concerning the presentation of his defense, he pleaded guilty “under duress.” Latchana's motion argued that withdrawal of the plea would be in the interest of justice, and would cause the State no prejudice. The court denied the motions in a May 19, 2008 hearing.⁴ It reasoned that the only sign of duress was “the fact that the evidence [at trial, which had started,] was proving to be overwhelming,” and noted that “the Court has not heard one valid reason to allow [Werth] to withdraw his plea.” As the...