Opinion
2:19-cv-00264-AC
05-03-2021
KIRK MICHAEL BAUER, Petitioner, v. SUE WASHBURN, Superintendent, Eastern Oregon Correctional Institution, Respondent.
FINDINGS AND RECOMMENDATION
John V. Acosta United States Magistrate Judge
Petitioner, an adult in custody of the Eastern Oregon Correctional Institution, brings this habeas corpus action pursuant to 28 U.S.C. § 2254. For the reasons that follow, the Second Amended Petition for Writ of Habeas Corpus should be DENIED.
BACKGROUND
In June 2010, a Lane County Circuit Court grand jury issued four indictments against Petitioner. The first indictment charged Petitioner on four counts of recklessly endangering another person , four counts of menacing, and one count each of second-degree assault, failure to perform the duties of a driver (felony), resisting arrest, failure to perform the duties of a driver (misdemeanor), attempted assault of a public safety officer, and driving under the influence of intoxicants. (Resp. Ex. 102, 1-3.) Two of other three indictments each charged Petitioner with one count of aggravated harassment, and the fourth charged him with one count of aggravated harassment and one count of assaulting a public safety officer. (Resp. Ex. 102, 4-6.)
The first set of charges arose from a January 23, 2010, incident when Petitioner was at a bar in Springfield, Oregon. (Resp. Ex. 118, 9-12; Resp. Ex. 112, 58). Petitioner slammed his truck door into one victim's car, demanded that he be allowed into that victim's car, and exposed himself to that victim. (Resp. Ex. 118, 61-67). Petitioner was escorted from the premises by the staff and proceeded to drive away. (Id. at 70). As he was yelling threats out of truck at the victims, Petitioner began pulling out of the bar parking lot. (Id. at 68-70). Petitioner then put his truck in reverse and drove in the direction of other victims. (Id. at 69-70). After missing those who dodged out of the way, Petitioner again drove his vehicle toward the victims, this time striking one of them. (Id. at 71-72). The police arrested Bauer shortly afterwards. (Id. at 81, 102-04).
The charges in the other three indictments were based on incidents that occurred while Petitioner was in custody following his arrest. (Id. at 127-37, 140, 166-67). They alleged Petitioner “knowingly propel[ling] saliva” at three different corrections officers. (Resp. Ex. 102).
At a February 19, 2020, arraignment hearing, the trial court appointed counsel to represent Petitioner. (Resp. Ex. 106, 2-7). Petitioner objected and asked to proceed pro se, and following a contentious exchange between Petitioner and the trial judge, the judge ultimately granted Petitioner's motion to proceed pro se. (Resp. Ex. 106, 2-9; Resp. Ex. 107, 10-11). During a March 15, 2020, hearing, the trial judge inquired whether Petitioner understood the advantages of having a lawyer and whether Petitioner had represented himself in the past, to which Petitioner responded affirmatively. (Resp. Ex. 107, 8). The court explained the advantages of being represented by counsel, and in response Petitioner expressed his ability to retain private counsel and his difficulties in calling out to contact an attorney from the correctional facility where he was detained. (Id.). The court also inquired regarding Petitioner's level of schooling. (Resp. Ex. 107, at 7). Petitioner responded, initially, that he went as far as the fifth grade, but ultimately, he stated that he had over 100 college credits. (Id.). Petitioner noted his contentious behavior with the court and apologized for his “attitude.” (Id. at 9).
At a March 18, 2010, pretrial proceeding, Petitioner made multiple assertions that he would be retaining private counsel. The trial judge appointed an attorney as Petitioner's legal advisor and to assist Petitioner in securing private counsel in light of Petitioner's difficulties in contacting counsel from the correctional facility. (Resp. Ex. 108, 14-17, 19). The legal advisor contacted the private attorney referenced by Petitioner, and once the trial judge informed him that the private attorney wanted to retain did not wish to represent him, Petitioner stated he wished to proceed pro se. (Resp. Ex. 108, 20-24).
During the March 18, 2021 hearing, the state raised concerns about Petitioner's ability to represent himself. (Id. at 25, 34). Petitioner then engaged in a meandering and profanity-laden colloquy with the court. (Id. at 25-34). The court expressed reservation about allowing Petitioner to proceed pro se, and ultimately ordered Petitioner to submit to a fitness hearing. (Id. At 38-41).
The trial judge conducted the fitness hearing later that day. A mental health specialist from the jail testified regarding Petitioner's fitness based on multiple interactions he had with Petitioner. (Resp. Ex. 109, 6-13). At the conclusion of the fitness hearing, trial judge found reason to doubt Petitioner's fitness to proceed and ordered Petitioner to be committed for examination for a period of thirty days at Oregon State Hospital (“OSH”). (Id. At 27).
On May 27, 2010, the trial court held a hearing on the state's motion to consolidate the three aggravated harassment charges against Petitioner for trial and to set a trial date. (Resp. Ex. 111). The trial court noted that it had received a report from OSH indicating Petitioner was fit to proceed to trial. (Id. at 10-11). At the conclusion of the hearing, the court consolidated the aggravated harassment charges for trial, to be held immediately after the trial on the charges in the first indictment. (Id. at 14). During the hearing, Petitioner again requested his appointed legal advisor, to reach out to a private attorney Petitioner wished to retain. (Id. at 8-10).
On June 29, 2010, trial commenced on the first set of charges against Petitioner. Petitioner proceeded to both voir dire and trial pro se. Resp. Ex. 112. He gave an opening argument, questioned witnesses, and gave a closing argument. Id. The jury convicted Petitioner on all counts. (Resp. Ex. 113, 39-40).
On July 1, 2010, trial commenced on the remaining charges. The state again inquired whether Petitioner wished to proceed pro se for the second jury trial. (Resp. Ex. 114, 3). In response to the court's reminder of his right to counsel, Petitioner again stated his intention to proceed pro se. (Id. at 7). Once a jury was seated, however, Petitioner stated multiple times in front of them that “[he] want[ed] to plead guilty” because the trial judge was “unfit.” (Resp. Ex. 114, 16). The trial judge had Petitioner removed from the courtroom, describing the order of events as follows:
THE COURT: Before we had a forced recess, the order of events were as follows: We seated our jury, and despite the lengthy advice I had given [Petitioner] over a long period of time, including last Thursday when I went through all of the issues in Allen v. Illinois on the fact that he could forfeit his right to be present at his own trial if he misbehaved, [Petitioner] had a complete and total breakdown.
[Petitioner] refused my directives. He refused the directives of law enforcement that was guarding him. He began shouting. The record might not reflect what he was saying as he was shouting at the top of his lungs, and I had [Petitioner] removed.
I would note, [Petitioner] knew and waited specifically to do this until the jury was sworn. I believe from everything I've seen of [Petitioner] for the last several months that it was very calculated, that he did it intentionally at that time in order to have some appealable issue after a double jeopardy - after double jeopardy had already attached with this jury.
The trial judge ordered Petitioner's legal advisor to step in and represent Petitioner for the proceeding. (Resp. Ex. 114, 17-18). Counsel moved to withdraw, which the trial judge denied. (Id. at 19). Counsel also moved to have Petitioner re-evaluated regarding his fitness to aid and assist in his defense. (Id. at 20). The trial judge denied the motion, reasoning that “[Petitioner] had been evaluated extensively. The evaluation found that he had no mental disease or defect . . . [Petitioner] just went through a two-day trial representing himself, and I saw nothing in his behavior that told me he was unfit to proceed.” (Id. at 20-21).
Petitioner was returned to the courtroom, and after asserting his status as pro se, stated he wished to change his plea to guilty. (Resp. Ex. 115, 7-16). The trial judge explained the need to determine whether Petitioner was changing his plea knowingly, intelligently, and voluntarily. (Id. at 7). The court then engaged in a colloquy with Petitioner, including an explanation of the rights he would give up by changing his plea. The trial judge ultimately accepted the change of plea. At the sentencing hearing, Petitioner allowed his legal advisor to make certain objections, including a proportionality objection to 60-month consecutive sentences for aggravated harassment, which were all denied by the court. (Resp. Ex. 116, 9-17). The court entered the judgment on July 2, 2010. (Resp. Ex. 118, 34-42).
Petitioner, through appellate counsel, appealed the convictions related to the January 23, 2010, bar incident, arguing that the trial court erred when it allowed Petitioner to proceed pro se without obtaining a valid waiver of counsel. (Resp. Ex. 117, 12). The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Bauer, 260 Or.App. 190, rev. denied, 354 Or. 814 (2014).
In a consolidated, direct appeal from the convictions related to the aggravated harassment charges, Petitioner, through appellate counsel, argued that the 60-month sentences were unconstitutionally disproportionate. (Resp. Ex. 123, 13). The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. State v. Bauer, 256 Or.App. 114, rev. denied, 353 Or. 867 (2013).
Petitioner then sought state post-conviction relief (“PCR”). Appointed counsel filed a second amended PCR petition asserting one claim each of ineffective assistance of trial counsel and ineffective assistance of appellate counsel. (Resp. Ex. 128; Resp. Ex. 129; Resp. Ex. 130, 11, 15). Following an evidentiary hearing on January 21, 2016, the PCR trial court denied relief. (Resp. Ex. 151). The PCR court reasoned that although appointed counsel's role as legal advisor complicated the analysis, the trial court's decision to send Petitioner to OSH for an evaluation was sufficient to establish Petitioner's ability to aid and assist in his own defense. (Resp. Ex. 151, 3-4). Petitioner, through counsel, appealed the PCR judgment. (Resp. Ex. 152, 8). The Oregon Court of Appeals affirmed without opinion, and the Oregon Supreme Court denied review. Bauer v. Premo, 289 Or.App. 158 (2017), rev. denied, 362 Or. 665 (2018).
Petitioner's initial and Amended Petition were filed by counsel, who subsequently was granted leave to withdraw. Petitioner thereafter proceeded pro se in this action.
On February 21, 2019, Petitioner filed his petition for writ of habeas corpus in this court. (ECF No. 1). On March 5, 2019, Petitioner filed an Amended Petition for Writ of Habeas Corpus (ECF No. 6). In his Amended Petition, Petitioner alleges:
CLAIM ONE: Petitioner's imprisonment is illegal, and the state court proceedings resulted in a substantial denial of his rights in that he was denied due process and the right to counsel, including but not limited to the right to counsel of choice, in violation of the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States when he was allowed to appear pro se without intelligently waiving his right to counsel, and without any reasonable opportunity to retain counsel of choice or to prepare properly for trial.
CLAIM TWO: Petitioner's imprisonment is illegal, and the state court proceedings resulted in a substantial denial of his rights in that the three consecutive 60 month prison sentences for the conduct of spitting on the uniforms of corrections officers were unconstitutionally disproportionate in violation of the Eighth and Fourteenth Amendments to the Constitution of the United States.
CLAIM THREE: Ineffective assistance of counsel by Petitioner's attorneys and legal advisor in the trial court, on appeal, and during post-conviction proceedings may have prevented Petitioner from properly raising or exhausting one or more of the issues set out above as [Claim] One.(Am. Pet. for Writ of Habeas Corpus, ECF No. 6, (“Am. Pet.”), at 8-10).
Respondent contends that the state PCR court's denial of relief on Petitioner's first claim was not objectively unreasonable. (Resp. to Pet. Am. Pet. For Writ of Habeas Corpus, ECF No. 17, (“Resp. to Pet.”), at 2). As to Petitioner's second claim, respondent contends it is procedurally defaulted; in the alternative, respondent argues the state court's denial of relief was not objectively unreasonable. (Id.). Finally, respondent argues Petitioner's third claim is procedurally defaulted. (Id.).
DISCUSSION
I. RELIEF ON THE MERITS - GROUND ONE
A. Legal Standards
A petition for writ of habeas corpus filed by a state prisoner shall not be granted with respect to any claim that was adjudicated on the merits in state court unless the adjudication resulted in a decision that was “contrary to, or involved an unreasonable application of, clearly established Federal law, ” or resulted in a “decision that was based on an unreasonable determination of the facts in light of the evidence presented” to the state court. 28 U.S.C. § 2254(d)(1)&(2); White v. Woodall, 572 U.S. 415, 419 (2014). “Clearly established Federal law for purposes of § 2254(d)(1) includes only the holdings” of the U.S. Supreme Court. White, 572 U.S. at 419 (internal quotations and citations omitted).
This standard is “difficult to meet” and highly deferential to the state court's determinations. Id. Indeed, for a state court to unreasonably apply Supreme Court holdings, it must be “objectively unreasonable, not merely wrong; even clear error will not suffice.” Id. (internal quotations and citations omitted). Moreover, state-court judgments “must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated.” Williams v. Taylor, 529 U.S. 362, 386 (2000). Additionally, a state-court's factual determinations are presumed to be correct, and the Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
B. Analysis
In his first claim, Petitioner alleges the trial court erred in allowing him to appear pro se without intelligently waiving his right to counsel, and without any reasonable opportunity to retain counsel of choice or to prepare properly for trial. Petitioner contends that “his bizarre behavior in court demonstrated that he was unfit to intelligently waive counsel or proceed pro se[, ]” and that he was not “given a reasonable opportunity to obtain retained counsel” despite his adequate resources to do so. (Am. Pet. at 9). Respondent argues the trial court's ruling was not objectively unreasonable because: (1) the private attorneys Petitioner requested were either not licensed in Oregon or did not want to represent Petitioner, (2) Petitioner repeatedly made comments to the court about successfully representing himself in the past, and (3) Petitioner made comments suggesting he was “intentionally gaming the system in order to create reversible error on appeal.” (Resp. to Pet. at 11-12).
For a criminal defendant to be tried, he must be competent, and “he may not waive his right to counsel or plead guilty unless he does so ‘competently and intelligently.'” Godinez v. Moran, 509 U.S. 389, 396 (1993) (citations omitted). The standard for competence to stand trial is “whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him.” Id. (internal quotations and citation omitted). “[A] competency determination is necessary only when a court has reason to doubt the defendant's competence.” Id. at 401 n.13.
The competence to waive the right to counsel is distinct from the competence to choose self-representation. Id. at 399-400 (citing Faretta v. California, 422 U.S. 806 (1975)). Though a defendant choosing self-representation must do so competently and intelligently, “a [] defendant's ability to represent himself has no bearing upon his competence to choose self-representation.” Id. (emphasis in original). Moreover, the focus of a competency inquiry is the defendant's mental capacity, and that question rests on “whether he has the ability to understand the proceedings.” Godinez, 509 U.S. at 401 n.12.
Whether a defendant is competent to stand trial, however, is “not all that is necessary before he may be permitted to plead guilty or waive his right to counsel.” Id. at 400. Even where a defendant who seeks to plead guilty or waive counsel is found to be competent, the trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. Id. at 400-01 (citing Parke v. Raley, 506 U.S. 20, 28-89 (1992) and Faretta, 422 U.S. at 835). The record should establish that a defendant is made aware of the dangers and disadvantages of self-representation. Faretta, 422 U.S. at 835; see also United States v. Audette, 923 F.3d 1227, 1235 (9th Cir. 2019) (stating the “focus of our analysis, which is whether a fair reading of the record as a whole indicates that the defendant understood the dangers and disadvantages of self-representation”) (internal quotations and citation omitted); see also United States v. Farhad, 190 F.3d 1097, 1099 (9th Cir. 1999) (stating waiver of counsel is considered knowing and intelligent only if the defendant is made aware of “(1) the nature of the charges against him; (2) the possible penalties; and (3) 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”) (internal quotations and citation omitted). Additionally, the waiver of counsel must be unequivocal, meaning that the “defendant must make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself.” Audette, 923 F.3d at 1234 (finding that defendant's request to represent himself without reference to advisory counsel was unequivocal despite the court appointing advisory counsel) (internal quotations and citation omitted).
Here, Petitioner asked to proceed pro se as early as his arraignment hearing. Although Petitioner was initially appointed counsel following the court finding him in contempt because of an inappropriate exchange with the court, Petitioner's motion to appear pro se ultimately was granted at the March 15, 2010, proceeding. Though contentious in tone, Petitioner engaged with the court during the March 15, 2010, hearing and asserted that he understood the charges against him. The court inquired as to Petitioner's schooling to which Petitioner answered, initially, that he went as far as the fifth grade, but ultimately stated he had over 100 college credits. The court inquired whether Petitioner understood the advantages of having a lawyer and explained what those advantages were. Although the exchange between Petitioner and the court was contentious and not entirely coherent, the record does not reflect that the court had reason to doubt Petitioner's competency. Indeed, Petitioner noted that he had an “attitude” and apologized to the court for his behavior.
Moreover, the record as a whole - the information before the court regarding Petitioner's competency and evidence of his understanding of the proceedings and charges against him - supports a finding that his waiver of counsel was made knowingly and intelligently. The record shows that the trial judge's reservations about Petitioner's fitness were dispelled, as the judge noted that the OSH report indicated Petitioner was fit to proceed to trial. Additionally, Petitioner unequivocally expressed multiple times that he wished to represent himself. Although there are multiple instances where Petitioner asserted that he intended to retain private counsel, once the court informed Petitioner that the private attorney in question declined to represent him, Petitioner unequivocally stated he wanted to proceed pro se.
Though Petitioner certainly could have benefitted from the representation of counsel at trial, his ability to defend himself does not inform whether he knowingly, intelligently, and unequivocally waived his right to counsel. He understood the serious nature of the charges against him. He further understood the penalties, i.e. the potential term of imprisonment he faced. The trial judge informed Petitioner multiple times, and he was aware, of the advantages and disadvantages of proceeding without counsel. In fact, a fair reading of the record establishes that even before the court had reason to doubt Petitioner's fitness, Petitioner was aware of the disadvantages of proceeding without counsel. Consequently, the trial judge's decision to allow Petitioner to proceed pro se is not an objectively unreasonable application of federal law regarding Petitioner's right to counsel and valid waiver of such right. Accordingly, Petitioner is not entitled to habeas corpus relief on his first claim for relief. .
II. PROCEDURAL DEFAULT - CLAIMS TWO AND THREE
A. Legal Standards
A habeas Petitioner must exhaust his claims by fairly presenting them to the state's highest court, either through a direct appeal or collateral proceedings, before a federal court will consider the merits of those claims. Rose v. Lundy, 455 U.S. 509, 519 (1982). “As a general rule, a Petitioner satisfies the exhaustion requirement by fairly presenting the federal claim to the appropriate state courts . . . in the manner required by the state courts, thereby ‘affording the state courts a meaningful opportunity to consider allegations of legal error.'” Casey v. Moore, 386 F.3d 896, 915-916 (9th Cir. 2004) (quoting Vasquez v. Hillery, 474 U.S. 254, 257, (1986)).
If a habeas litigant failed to present his claims to the state courts in a procedural context in which the merits of the claims were actually considered, the claims have not been fairly presented to the state courts and are therefore not eligible for federal habeas corpus review. Edwards v. Carpenter, 529 U.S. 446, 453 (2000); Castille v. Peoples, 489 U.S. 346, 351 (1989). In this respect, a Petitioner is deemed to have “procedurally defaulted” his claim if he failed to comply with a state procedural rule, or failed to raise the claim at the state level at all. Carpenter, 529 U.S. 446, 451 (2000); Coleman v. Thompson, 501 U.S. 722, 750 (1991). If a Petitioner has procedurally defaulted a claim in state court, a federal court will not review the claim unless the Petitioner shows “cause and prejudice” for the failure to present the constitutional issue to the state court, or makes a colorable showing of actual innocence. Gray v. Netherland, 518 U.S. 152, 162 (1996); Sawyer v. Whitley, 505 U.S. 333, 337 (1992); Murray v. Carrier, 477 U.S. 478, 485 (1986).
B. Analysis
1. Claim Two
In his second claim, Petitioner alleges the trial court violated his Eighth and Fourteenth Amendment rights by imposing three consecutive 60-month terms of imprisonment on the aggravated harassment convictions. Respondent argues the claim is procedurally defaulted because Petitioner did not adequately preserve the issue for appeal. (Resp. to Pet. at 14-15).
Alternatively, respondent contends the claim lacks merit because the sentence is not grossly disproportionate to the crime, considering the U.S. Supreme Court has upheld life sentences for less serious crimes. Because Petitioner procedurally defaulted the claim, the court does not address the merits of this argument.
Under Oregon law, to preserve an issue for appeal, “a party must provide the trial court with an explanation of [the] objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Olivar, 216 Or.App. 126, 135 (2007) (citation omitted). Here, Petitioner did not adequately preserve the issue of proportionality before the trial court. Though Petitioner allowed his legal advisor to make objections at sentencing regarding the proportionality of the aggravated harassment sentences, counsel did not make any reference as to whether the proportionality objection was based on Article I, section 16, of the Oregon Constitution or the Eighth Amendment of the U.S. Constitution. In fact, the discussion counsel engaged in with the trial judge following the objection centers on the proper classification of the crimes with no reference to any federal standards. Consequently, federal constitutional issue was not fairly presented to the trial court and thereby not properly preserved for appeal. Thus, Petitioner has not established the claim was exhausted.
The standards for cruel and unusual punishment are the same under Article I, section 16, of the Oregon Constitution as under the Eighth Amendment of the U.S. Constitution. State v. Rogers, 313 Or. 356, 380 (1992). The concept of proportionality, however, is not equally similar. State v. Cook, 297 Or.App. 862, 869-70, review denied, 365 Or. 721 (2019) (noting difference of proportionality analysis under Article I, section 16, of the Oregon Constitution, and the Eighth Amendment of the U.S. Constitution); see also State v. Wheeler, 343 Or. 652, 662 n.5 (2007) (noting the division of U.S. Supreme Court on the proportionality requirement under the Eighth Amendment and deciding not to address the discussion because defendant did not rely on the Eighth Amendment).
Petitioner's second claim is procedurally defaulted, and Petitioner has not established cause and prejudice or a miscarriage of justice to excuse the procedural default. Accordingly, Petitioner is not entitled to habeas corpus relief on his second claim.
2. Claim Three
In his third claim, Petitioner alleges ineffective assistance of trial, appellate, and PCR counsel because counsel “prevented Petitioner from properly raising or exhausting one or more of the issues set out above as Ground One.” He further alleges trial, appellate and PCR counsel failed to join Petitioner in objecting to issues arising from erroneous advice about bail or the conditions of Petitioner's pretrial detention. Respondent argues these claims are procedurally defaulted, and that Petitioner has not established any exception to the procedural default.
The Supreme Court announced a limited exception to the general procedural default rule:
“[i]nadequate assistance of counsel at initial-review collateral proceedings may establish cause for a prisoner's procedural default of a claim of ineffective assistance at trial.” Martinez v. Ryan, 566 U.S. 1, 9 (2012). To establish cause under Martinez, a Petitioner must show:
“(1) the underlying ineffective assistance of trial counsel claim is “substantial”; (2) the Petitioner was not represented or had ineffective counsel during the PCR proceeding; (3) the state PCR proceeding was the initial review proceeding; and (4) state law required (or forced as a practical matter) the Petitioner to bring the claim in the initial review collateral proceeding.”Dickens v. Ryan, 740 F.3d 1302, 1319 (9th Cir. 2014) (citation omitted). The standards of Strickland v. Washington, 466 U.S. 668 (1984), apply when determining if PCR counsel was ineffective. Cook v. Ryan, 688 F.3d 598, 607 (9th Cir. 2012); Sexton v. Cozner, 679 F.3d 1150, 1159 (9th Cir. 2012) (stating Martinez made clear that a reviewing court must determine whether the Petitioner's attorney in the first collateral proceeding was ineffective under Strickland, whether the Petitioner's claim of ineffective assistance of trial counsel is substantial, and whether there is prejudice) (emphasis in original). Moreover, for a claim to be substantial, the Petitioner must demonstrate that the claim has some merit. Id.
To establish an ineffective assistance of counsel (“IAC”) claim, a Petitioner must show: (1) that counsel's performance was deficient; and (2) that the deficient performance prejudiced his defense. Strickland, 466 U.S. at 687. Deficient performance is present where counsel's representation fell below an objective standard of reasonableness. Sexton, 679 F.3d at 1159 (citation omitted). Establishing prejudice requires a showing of a “reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 566 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
Though Petitioner does not address the issue, the Martinez exception to establish cause is inapplicable here. As Respondent correctly notes, Petitioner does not clearly indicate whether his IAC claims are intended to address Petitioner's trial advisor, post-conviction counsel, or direct appellate counsel. In any event, the Martinez exception applies only to claims of ineffective assistance of trial counsel. To the extent Petitioner's IAC claim is directed toward Petitioner's trial advisor, after a defendant in a criminal proceeding enforces his or her constitutional right to proceed pro se under Faretta, there is no constitutional right to a legal advisor or standby counsel. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (noting in dicta that “Faretta does not require a trial judge to permit ‘hybrid' representation”). Here, Petitioner knowingly and voluntarily requested to proceed pro se. “A defendant who chooses to represent himself cannot then complain that the quality of his defense amounted to a denial of the right to effective assistance of counsel.” Burrow v. Secretary, Dept. of Correction, No. 2:11-cv-60-FtM-29UAM, 2014 WL 1092452, at *15 (M.D. Fla. March 19, 2014). Though Petitioner was removed for his outburst prior to the second trial, thereby allowing counsel to step in and represent Petitioner, that occurred well after the bail and confinement issues were presented to the trial judge. Thus, Petitioner cannot establish that trial advisor's performance was deficient, thereby failing to satisfy the Strickland standard, so Petitioner likewise cannot satisfy the Martinez requirements. Petitioner's third claim is procedurally defaulted and he has not established cause and prejudice or a fundamental miscarriage of justice to excuse the default. Accordingly, Petitioner is not entitled to habeas corpus relief on his third claim.
CONCLUSION
For the reasons stated above, Petitioner's Amended Petition for Writ of Habeas Corpus should be DENIED and judgment of DISMISSAL should be entered. Because Petitioner has not made a substantial showing of the denial of a constitutional right, a certificate of appealability should be DENIED. See 28 U.S.C. § 2253(c)(2).
SCHEDULING ORDER
The above Findings and Recommendation are referred to a United States District Court Judge for review. Objections, if any, are due by May 17, 2021. If no objections are filed, review of the Findings and Recommendation will go under advisement that date.
A party may respond to another party's objections within 14 days after the objections are filed. If objections are filed, review of the Findings and Recommendation will go under advisement upon receipt of the response, or on the latest date for filing a response.