Young v. Lockhart, 88-2625

• Decision Date: 29 December 1989
• Docket Number: No. 88-2625,88-2625
• Citation: 892 F.2d 1348
• Parties: James C. YOUNG, Appellee, v. A.L. LOCKHART, Director, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1348

892 F.2d 1348

James C. YOUNG, Appellee, v. A.L. LOCKHART, Director, Appellant.

No. 88-2625.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 15, 1989.

Decided Dec. 29, 1989.

William F. Knight, Asst. Atty. Gen., Little Rock, Ark., for appellant.

John Wesley Hall, Jr., Little Rock, Ark., for appellee.

Before ARNOLD, Circuit Judge, BRIGHT, Senior Circuit Judge, and BEAM, Circuit Judge.

BRIGHT, Senior Circuit Judge.

A.L. Lockhart, Director of the Arkansas Department of Corrections, appeals the district court's order granting resentencing on ex post facto grounds to habeas corpus petitioner James C. Young. Young cross appeals the district court's denial of his other habeas corpus claims, including involuntary waiver of counsel and double jeopardy. For the reasons set forth below, we affirm in part and reverse in part, directing that the writ of habeas corpus issue unless Young is afforded a new trial by the State of Arkansas.

I. BACKGROUND

On November 15, 1982, the State of Arkansas charged Young with two rapes, one which occurred on November 11, 1982, and the other on June 3, 1979. The State initially prosecuted and convicted Young for the 1982 rape. The subsequent prosecution of Young for the 1979 rape provides the subject of this appeal.

The State charged Young with class Y felony rape for the 1979 offense. Rape did not become a class Y felony in Arkansas, however, until 1981. Arkansas law in 1979 categorized rape as a class A felony. On July 15, 1983, four days before the scheduled start of the trial for the 1979 rape, Young filed a motion requesting that he be declared co-counsel and that a substitute be appointed in place of appointed counsel Horace Fikes, who had served as appointed counsel at Young's first trial. The court rejected this motion and gave Young the choice of either accepting Fikes as counsel or proceeding pro se. Young chose to represent himself pro se and the court rescheduled the trial.

Young filed a pretrial motion for dismissal of the charge, arguing that he was prejudiced by the preindictment delay of more than three years, that the victim never identified him and that he had been charged with a class Y felony, even though rape had been a class A felony in 1979. The trial court overruled the motion as to preindictment delay and rejected the identification challenge, but did not address Young's contention that he had been charged under the wrong statute.

Young represented himself at trial, which took place in September of 1983. After deliberating for several hours, the jury reported that it was deadlocked ten to two and the trial court declared a mistrial. Affidavits later submitted by the jurors indicated that they had deliberated for between two and four hours, that ten jurors favored acquittal and that the split was made known to the judge and prosecuting attorney.

Young represented himself again at the second trial, held in March of 1984. This time the jury convicted Young and he received a fourteen year prison sentence. The Arkansas Court of Appeals affirmed the conviction, Young v. State, 14 Ark.App. 122, 685 S.W.2d 823 (1985), and the Arkansas Supreme Court denied Young's petition for post-conviction relief, Young v. State, 287 Ark. 361, 699 S.W.2d 398 (1985).

In January of 1989, Young filed the instant habeas corpus petition. After appointment of counsel, Young amended his petition, asserting seven claims arising from his conviction for the 1979 rape, only five of which are before this court on appeal: 1) involuntary waiver of counsel; 2) prejudicial preindictment delay; 3) double jeopardy; 4) violation of the ex post facto clause; and 5) denial of counsel at sentencing. The magistrate held a hearing, made proposed findings and recommended that sentencing relief be granted on Young's ex post facto claim. The magistrate found that Young had been ineligible for probation or a suspended sentence as a class Y felon and that these options would have been available had he been sentenced as a class A felon. The magistrate recommended that all of Young's other claims be denied.

In his objections to the magistrate's report, Lockhart for the first time asserted that Young's ex post facto claim was procedurally barred because the specific argument raised by Young had never been raised before the state courts. Lockhart also asserted that an Arkansas statute in effect in 1979, Ark.Stat.Ann. § 41-1201(1) (Repl.1977) (now codified at Ark.Code Ann. § 5-4-301(a)(1) (1987)), prohibited probation or suspended sentences for those convicted of first-degree rape, and that this prohibition applied to Young, notwithstanding that the State did not charge Young with first-degree rape.

The district court remanded the case to the magistrate with instructions to address the statutory issue raised by Lockhart. In his second proposed findings, the magistrate determined that the section 1201(1) prohibition against probation or suspended sentences for first-degree rape did not apply to Young because degrees of rape had been eliminated by the Arkansas legislature in 1976. Both parties filed objections to this report. The district court adopted the magistrate's findings and recommendations and ruled that the writ of habeas corpus would issue unless the state trial court resentenced Young within 120 days with Young represented by appointed counsel. Both parties appealed. Additional facts will be set forth below, as necessary.

II. DISCUSSION

A. Waiver of Counsel

We first address the waiver of counsel issue. Young argues that the district court erred in holding that he voluntarily, knowingly and intelligently waived his right to counsel at trial. Young contends that the trial court did not attempt to determine whether he was competent to represent himself, did not caution him that he was waiving a basic constitutional right and did not advise him of the hazards of self-representation, ¹ all in violation of the Supreme Court's ruling in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

In Faretta, the Supreme Court stated:

When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S., at 464-465 [58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938) ]. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724 [68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) ] (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should 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." Adams v. United States ex rel. McCann, 317 U.S., at 279 [63 S.Ct. 236, 242, 87 L.Ed. 268 (1942) ].

Id. 422 U.S. at 835, 95 S.Ct. at 2541.

This court outlined the principles governing waiver of counsel in Meyer v. Sargent, 854 F.2d 1110 (8th Cir.1988). In all waiver of counsel cases we ask "what purposes a lawyer can serve at the particular stage of the proceeding in question, and what assistance he could provide to an accused at that stage--to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized." Meyer, 854 F.2d at 1114 (quoting Patterson v. Illinois, 487 U.S. 285, 108 S.Ct. 2389, 2395, 101 L.Ed.2d 261 (1988)). In making this determination we look at the particular facts of each case, "including the background, experience, and conduct of the accused." Id. (quoting Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981)). Moreover, "a specific warning on the record of the dangers and disadvantages of self-representation is not an absolute necessity in every case if the record shows that the defendant had this required knowledge from other sources." Id.

In Meyer, the defendant moved for substitute counsel midway through trial, thereby intending to obstruct the trial process. The trial court required Meyer either to proceed with appointed counsel or to represent himself pro se. Meyer chose self-representation. After conviction and appeal, Meyer filed a habeas corpus petition asserting that he did not waive counsel knowingly and intelligently because the trial judge did not warn him of the dangers of self-representation. This court held that the record as a whole demonstrated that the waiver occurred knowingly and intelligently, largely because of Meyer's obstructive motive in moving for substitute counsel. Id. at 1114-15. We also considered that the trial judge had thoroughly explained Meyer's rights to him throughout the trial and that Meyer had acquired extensive experience with the criminal justice system. Further, we observed that Meyer's conduct throughout the trial indicated a good knowledge of the system.

Ordinarily, however, "we have imposed the most rigorous restrictions on the information that must be conveyed to a defendant, and the procedures that must be observed, before permitting him waive [sic] his right to counsel at trial." Patterson, 108 S.Ct. at 2398 (citing Faretta, 422 U.S. at 835-36, 95 S.Ct. at 2541-42). Thus, Meyer stands as an exception to the general rule that to constitute a valid waiver of counsel the trial judge must apprise the defendant on the record of the advantages and disadvantages of self-representation. See Berry v. Lockhart, 873 F.2d 1168 (8th Cir.1989). In Berry, a habeas corpus case, we affirmed the district court's ruling that Berry did not knowingly and intelligently waive counsel, despite evidence that Berry had some college education and extensive experience with the criminal justice system. Id. at 1170-71.

The...