Wilson v. Walker

• Decision Date: 01 August 1999
• Docket Number: Docket No. 98-2657
• Parties: (2nd Cir. 2000) JAMES D. WILSON, Petitioner-Appellant, v. HANS WALKER, Superintendent, Auburn Correctional Facility, Respondent-Appellee
• Court: U.S. Court of Appeals — Second Circuit

Page 33

204 F.3d 33 (2nd Cir. 2000)

JAMES D. WILSON, Petitioner-Appellant, v. HANS WALKER, Superintendent, Auburn Correctional Facility, Respondent-Appellee.

Docket No. 98-2657

August Term, 1999

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued: February 3, 2000

Decided: February 17, 2000

Appeal from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge), denying petitioner-appellant's petition for the writ of habeas corpus pursuant to 28 U.S.C. 2254. On appeal, petitioner-appellant argues that the District Court erred in holding that he had waived his Sixth Amendment right to self-representation through abandonment before his trial in state court for robbery.

Affirmed.

SUSAN D. FITZPATRICK, Ossining, NY, for Petitioner-Appellant.

WENDY EVANS LEHMAN, Chief of Appeals, Monroe County District Attorney's Office (Howard R. Relin, District Attorney of Monroe County, of counsel), Rochester, NY, for Respondent-Appellee.

Before: CABRANES, OAKES, and SACK, Circuit Judges.

PER CURIAM:

This appeal requires us to clarify when a criminal defendant may be deemed to have waived a previously asserted right to represent himself at trial. Petitioner James D. Wilson appeals from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge), denying his petition for the writ of habeas corpus pursuant to 28 U.S.C. 2254 on the ground that he had waived his Sixth Amendment right to self-representation through abandonment. We agree with the District Court that Wilson waived his Sixth Amendment right, and we therefore affirm the judgment of the District Court.

I.

On February 8, 1994, Wilson and another man, with guns drawn and faces covered, entered a store in Rochester, New York, grabbed the cashier around the neck, and ordered everyone in the store to lie on the floor. The two men then directed everyone but the store manager into a walk-in cooler, which they locked, and ordered the manager to take money and food stamps out of the store's safe. Wilson and his accomplice fled the store with about $13,000 worth of items, but they were apprehended immediately.

Wilson was arraigned in New York State Supreme Court, Monroe County, before Judge Patricia Marks on February 23, 1994, and charged with one count of robbery in the first degree. Because Wilson was indigent, Judge Marks assigned an attorney to represent him. For reasons that are unclear from the record, however, this attorney soon thereafter withdrew as Wilson's counsel, and Judge Marks assigned Bradley C. Bennett to replace him.

On or about April 22, 1994, approximately three weeks before Wilson's trial was scheduled to begin, Wilson wrote a letter to Judge Marks stating that he "no longer ha[d] confidence" in Bennett and intended to proceed pro se. One week later, on April 29, 1994, Judge Marks held a hearing to address the matter. At the hearing, Wilson asserted that there were "irreconcilable differences" between his attorney and himself, and informed Judge Marks that he "simply decided [he] would handle [his] own case." Despite questions from Judge Marks, Wilson did little to elaborate on the reasons for his dissatisfaction with Bennett; nevertheless, he unambiguously asserted a lack of confidence in Bennett and in Bennett's preparation for trial, and argued that he, Wilson, would "be more zealous in [his] own representation than anyone else." During the hearing, Wilson stated at least seven times that he wanted to represent himself, and asserted that he had "an absolute constitutional right" to do so.

Judge Marks conducted an extensive inquiry into Wilson's background and legal experience. Wilson informed Judge Marks that he had been tried three previous times in complicated proceedings, and that he had participated extensively in his own defense on each occasion; that he was familiar with the order of a trial and the rules of evidence; that he had been reading law books in preparation for his trial; and that he had prepared written questions for his attorney to ask witnesses in a prior trial. In the course of this questioning, however, Wilson interrupted Judge Marks several times, prompting her to note for the record that Wilson had "decline[d] to answer questions that would permit [her] to determine whether waiving his right to counsel ... is a knowing, intelligent and voluntary waiver." At the conclusion of the hearing, in a colloquy set forth in the margin, Judge Marks concluded that Wilson had not knowingly, intelligently, and voluntarily waived his right to counsel, and therefore denied his application to represent himself.¹

Although Bennett stayed on as Wilson's attorney after the April 29, 1994 hearing, he was not to remain in that capacity for long. On May 13, 1994, citing a belief that his and his family's "physical well-being" might be "at jeopardy" if he continued to represent Wilson, Bennett requested that he be permitted to withdraw from the case. After determining that Wilson had no objection, Judge Marks granted Bennett's request to withdraw. She then appointed Garry Hanlon to replace Bennett as Wilson's counsel.

Judge Marks asked Wilson if Hanlon's assignment was "agreeable" with him, but before Wilson could respond Hanlon stated:

Your Honor, if I may interject at this point in time. Please hold on a second, Mr. Wilson.

... It's my understanding Mr. Wilson has indicated he wishes to proceed pro se, and that the Court is reluctant to allow him to do that due to the complexity of the charges, as well as the risks that he faces in light of his background. It's my understanding that the Court is going to allow me to have a week as his attorney to review his request with regard to the pro se application....

Judge Marks then responded: "That's fine. One of my findings, however, on previous colloquy, was that the defendant has conducted himself in a way that would interfere with a fair and orderly trial, and this continues to demonstrate that." Thereafter, without asking Wilson again whether Hanlon's appointment as counsel was acceptable to him, Judge Marks adjourned the trial to May 20, 1994.

Like Bennett, Hanlon was not to last long as Wilson's counsel. On May 23, 1994, in another hearing before Judge Marks, Hanlon withdrew as counsel because of a conflict of interest.² Judge Marks then appointed Culver Barr as counsel, and designated November 28, 1994 as a new trial date. When asked if Barr's appointment as counsel was "agreeable" to him, Wilson voiced no objection, and stated nothing about representing himself. Moreover, during the remainder of pre-trial proceedings and during the trial, which finally began as scheduled on November 28, 1994, there was no discussion on the record concerning Barr's representation or Wilson's previously expressed desire to proceed pro se.

After trial, the jury convicted Wilson of robbery in the first degree. On February 6, 1995, Wilson was sentenced as a persistent violent felony offender under New York law to a term of imprisonment of 25 years to life. Upon exhaustion of state court remedies, Wilson filed a petition for the writ of habeas corpus with the District Court, asserting, inter alia, that his Sixth Amendment right to self-representation had been violated. By Decision and Order filed June 16, 1998, the District Court denied Wilson's petition. With respect to Wilson's Sixth Amendment claim-the only claim at issue here-the District Court concluded that, although Wilson had "clearly and unambiguously" asserted his right to self-representation at the April 29, 1994 hearing, he thereafter waived the right through abandonment. We granted a Certificate of Appealability with respect to whether Wilson waived his right to self-representation.

II.

Under the Sixth Amendment to the Constitution, an accused is guaranteed the right to represent himself. See Faretta v. California, 422 U.S. 806, 819-20 (1975). A criminal defendant is entitled to proceed pro se if he "knowingly, voluntarily, and unequivocally" waives his right to appointed counsel. Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986) (citing Faretta, 422 U.S. at 835-36). Assuming that a defendant's waiver meets this standard and the matter is raised prior to the start of the trial, "'[t]he right of a defendant in a criminal case to act as his own lawyer is unqualified ....'" Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965)) (emphasis in Williams). Moreover, a court's denial of the right to self-representation is not subject to harmless error analysis, and requires automatic reversal of a criminal conviction. See Johnstone, 808 F.2d at 218.

The right to self-representation attaches only if it is asserted "clearly and unequivocally." Faretta, 422 U.S. at 835. "Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one's request altogether." Williams, 44 F.3d at 100 (citing Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (en banc)). Thus, "[a] waiver may be found it if reasonably appears to the court that defendant has abandoned his initial request to represent himself." Brown, 665 F.2d at 611. However, to avoid waiver of a previously invoked right to self-representation, a defendant need not "continually renew his request to represent himself even after it is conclusively denied by the trial court. After a clear denial of the request, a defendant need not make fruitless motions or forego cooperation with defense counsel in order to preserve the issue on appeal." Id. at 612; accord United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994) ("[O]nce a defendant has stated his request clearly and unequivocally and the judge has denied it in an equally clear and unequivocal fashion, the defendant is under no obligation to renew the motion.").

In the...