Opinion
Judge Scott's Order April 20, 1979.
Richard A. Belz, Florida Legal Services, Inc., Prison Project, Gainesville, Fla., for petitioner.
William I. Munsey, Jr., Asst. Atty. Gen., Tampa, Fla., for respondent.
OPINION
CHARLES R. SCOTT, Senior District Judge.
This is a habeas corpus case in which petitioner, James Robert Scott, Jr., contends that the trial court's refusal to allow him to defend pro se was error of constitutional magnitude. The case was referred to the Honorable Harvey E. Schlesinger, United States Magistrate, for findings of fact and conclusions of law. After an evidentiary hearing was held, the Magistrate issued his report on February 22, 1979, recommending that the petition be denied and the case dismissed.
Petitioner has challenged the Magistrate's conclusions of law on two grounds. First, he contends that the law of the Fifth Circuit at the time of his trial afforded him a constitutional right of self-representation. Secondly, in the alternative, petitioner argues that, even if the law of the Fifth Circuit did not so provide, the Supreme Court's decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which established the constitutional right to self-representation, should be applied retroactively. These arguments are the same as those made before the Magistrate.
The Court has thoroughly reviewed the record and weighed the arguments of both parties. The issues raised by petitioner present difficult and far-reaching problems regarding the administration of justice to those who sought to represent themselves before state courts. In his report and recommendation, the Magistrate analyzed in detail the decisions relied upon by both parties, and the Court is convinced that the analysis is correct.
Although pursuant to 28 U.S.C. s 636(b)(1)(C), the Court must make a De novo determination of those portions of the Magistrate's report and recommendation to which objections have been filed, the Court feels it can add little to the reasoning employed
by the Magistrate in resolving these difficult questions. Consequently, the Magistrate's report and recommendation is adopted as the opinion of the Court, and, accordingly, the petition for writ of habeas corpus will be denied and the case dismissed.
REPORT AND RECOMMENDATION
HARVEY E. SCHLESINGER, United States Magistrate.
FACTS
Petitioner, JAMES ROBERT SCOTT, JR., was convicted in state court for the offenses of false imprisonment and kidnapping and robbery on April 9, 1974. Appeal of the conviction was taken to the Second District Court of Appeal of Florida where on February 12, 1975, the Petitioner's conviction was affirmed. Post-conviction relief was also denied by the trial court on July 26, 1975. An appeal of this order was also affirmed by the Second District Court of Appeal of Florida. A petition for a writ of certiorari to the Supreme Court of the United States was filed and subsequently denied. Thereafter, this petition for writ of habeas corpus was filed.
Prior to Petitioner's original trial, he filed a Pro se Motion to Dismiss the public defender and represent himself. A hearing was held, and the trial judge entered an order denying the defendant's request. The Petitioner then proceeded to trial utilizing the services of his appointed public defender. Upon conviction, Petitioner filed several documents Pro se, including notice of appeal, assignment of errors, brief of appellant, and a motion for non-appointment of counsel. Although Petitioner's direct appeal was handled by the office of the public defender, the issue of self-representation was raised and preserved. The issue before this Court is whether the trial court's denial of Petitioner's demand to defend Pro se was a deprivation of a constitutional right.
CONCLUSIONS OF LAW
I. MacKENNA AND ITS PROGENY
The first argument to be considered is whether the law of the Fifth Circuit at the time of Petitioner's original trial provided for a constitutional right to absolute self-representation. It is argued that MacKenna v. Ellis, 263 F.2d 35 (5th Cir. 1959), and its progeny established the rule that a defendant who is Sui juris and mentally competent has an absolute right to defend Pro se ; absolute, meaning not forcing the defendant to have assistance of counsel.
In the original MacKenna case, the Petitioner sought relief from conviction through a petition for writ of habeas corpus in federal court. One of the bases alleged was that MacKenna had been denied due process of law when the trial court required him to accept incompetent counsel rather than allow him to represent himself. In discussing this point, the court pronounced the oft-quoted statement that:
This was grounded on the Supreme Court case of Adams v. United States ex rel. McCann, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942). That case involved a defendant in a federal mail fraud case who not only represented himself, but waived his right to a jury trial. The Court of Appeals had concluded that a defendant in a federal criminal case could not effectively waive his right to a jury trial without the assistance of counsel in making that decision. The court stated at page 275, 63 S.Ct. at page 240:
The court went on to state at page 277, 63 S.Ct. at page 241:
In a further discourse on what rights a criminal defendant had in a federal case, the court continued at page 279, 63 S.Ct. at page 241 by stating:
The court concluded that if a person can waive his right to counsel he may also, without the advice of counsel, waive his right to a jury trial.
The MacKenna court, Supra, continued, clarifying the purpose and extent of the rule quoted above saying:
The allegations made were that his "forced" attorneys were of no assistance at all. The Court of Appeals remanded the case to the District Court for the purpose of giving MacKenna an opportunity to prove his allegations.
After the District Court had ruled on remand, the case was again before the Court of Appeals. MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960). That opinion makes even more clear the holding of the first MacKenna case. After making the initial determination that Texas law preserved the question, the court stated the issue to be "whether, in the unusual circumstances of this case, the trial judge offended due process in appointing counsel, over the protest of the accused." In resolving the issue, the court first noted that the right to counsel means the right to Effective counsel which included the undivided loyalty of the attorney. The record of the hearing held upon remand indicated that the attorneys appointed by the trial court had less than six months experience between them. They had handled but one case previously. Further, at the time of their appointment each of the young lawyers was awaiting openings in the district attorney's office. The court reasoned that due to this inexperience and conflict of interest, it was not surprising that the attorneys were willing to accommodate the district attorney to the possible detriment of petitioner. In holding that MacKenna had been denied a fair trial, the court said:
The court further stated:
The MacKenna case, as the undersigned reads it by itself, stands only for the proposition that a defendant is denied due process if he is forced to accept the services of inexperienced or incompetent counsel. The primary issue was ineffective assistance of counsel, not the right to self-representation.
The problem posed is thus: if the Court does not read MacKenna to mean that a Sui juris, mentally competent defendant in state court has a constitutional right to absolute self-representation, how could the state trial judge in this case be held to so interpret that case? As will be seen later, it took the Fifth Circuit until 1977 to state that MacKenna actually meant that the absolute right to self-representation is grounded in the Sixth Amendment right to counsel rather than under the due process provisions. By only gazing into a crystal ball could this be seen prior to that time. Such is not required of courts. As stated by the Supreme Court in Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) at page 156, 89 S.Ct. at page 941:
By looking at those subsequent cases citing MacKenna is the issue of an absolute constitutional right to self-representation in a state criminal trial presented? I feel that until after the completion of petitioner's trial, it was not.
In Lee v. Alabama, 406 F.2d 466 (5th Cir. 1969), Cert. denied, 395 U.S. 927, 89 S.Ct. 1787, 23 L.Ed.2d 246, for instance, the issue was whether there was evidence supporting the petitioner's claim that there had been a conspiracy in the trial court to try petitioner although he was insane. The question of the petitioner's self-representation dealt with that right only in regard to the habeas corpus proceedings. The issue was raised apparently to show only that petitioner's waiver of counsel in the collateral proceedings was not affected by his claimed incompetence at trial. The court said:
Although reference was made to MacKenna, the court explicitly recognized that the petitioner's Pro se right was grounded on statutory authorization, viz. 28 U.S.C. s 1654, and used MacKenna only to support its conclusion that in a Federal habeas case neither the trial court, nor the court of appeals could force counsel on an individual who wishes to represent himself. This conclusion was reached by referring to Adams, Supra, and Juelich v. United States, 342 F.2d 29 (5th Cir. 1965).
An element of this statutory right (28 U.S.C. s 1654) was at issue in Juelich. There petitioner had attempted to represent himself in a s 2255 action. The district court's denial of petitioner's motion to dismiss appointed counsel was raised on appeal. As in Lee, the court did not decide whether a defendant in state court is constitutionally entitled to absolute self-representation. Although citing MacKenna for
the view that in a criminal prosecution the right to defend Pro se is constitutionally protected, the court said:
Moreover, the court went on to say that there could be instances where allowing a defendant to defend Pro se would be a Denial of due process under the Fifth Amendment. The court also found that any error in denying Juelich his statutory right (28 U.S.C. s 1654) would not warrant reversal since counsel had been able, diligent, and faithful. If MacKenna created an absolute right to self-representation, why then did the court refer to the harmless error doctrine which is not applicable to constitutional violations? Perhaps, the answer is that Juelich was a habeas case and not a direct criminal appeal. Support for this can be found in Chapman v. United States, 553 F.2d 886 (5th Cir. 1977) at 891 n. 9, which will be discussed later. Again, then, the Court in Juelich was not dealing specifically with the state criminal defendant's absolute right to defend Pro se.
MacKenna was also cited in United States v. Garcia, 517 F.2d 272 (5th Cir. 1975). The issue there was whether two defendants in a federal criminal trial could waive the right to have their retained counsel free from conflicts of interest. The court rejected the government's suggestion that it is impossible to waive the right to counsel saying:
Thus, the holding of the case concerned the waiver of conflict-free counsel. MacKenna could be cited here only for the view that in certain situations counsel could be waived, while the cite to Faretta was for any absolute right to self-representation that existed. As in Lee and Juelich, the holding did not deal specifically with the constitutional right of a state criminal defendant to represent himself.
Garcia was decided subsequent to Petitioner's trial and in reality was another federal criminal case relating to effective waiver of counsel, not the forcing of an attorney on a defendant who wished to represent himself. This reasoning is inescapable because that court concluded by stating at page 278:
Garcia was decided on August 8, 1975, approximately one month after the Supreme Court decided Faretta, Supra. The reason for this historical comment reveals itself in footnote 4 found on page 277 of Garcia. The court in reaching its conclusion that a defendant may dispense with representation of counsel "altogether" stated:
If MacKenna established an absolute right to self-representation, why then this comment? Obviously, even one month after Faretta, the Fifth Circuit was not settled on whether Faretta stood for that proposition. Surely, if MacKenna meant this, the footnote would have stated that this circuit, since MacKenna, has concluded the law to be just the opposite. Rather than offering "no judgment as to the cogency of these decisions" the court would have stated that MacKenna conferred an absolute right to self-representation. This statement was made after the Supreme Court in Faretta cited MacKenna 422 U.S. at page 817, 95 S.Ct. at page 2532 for the proposition that both the Fifth and Sixth Amendments guarantee "the right of the accused personally to manage and conduct his own defense in (criminal cases)."
The Court cannot conclude that the Supreme Court held MacKenna covered an absolute right to self-representation in this circuit because Garcia is to the contrary. The holding of Garcia was extended to state criminal defendants in Gray v. Estelle, 574 F.2d 209 (5th Cir. 1978). There, counsel in the state trial had been retained by petitioner upon the agreement that the attorney's criminal complaint against petitioner in another case would be dropped. Having recognized that a conflict existed, the court remanded with directions for the district court to determine whether a voluntary, knowing, and intelligent waiver had been made. The decision, of course, still meant that the defendants would be represented by counsel, whether conflict-free or otherwise. MacKenna was cited only for the proposition that a defendant may dispense with counsel.
Finally, the case of Chapman v. United States, 553 F.2d 886 (5th Cir. 1977) is likewise not decisive. There, petitioner had been tried in Federal court for a Federal crime. Under 28 U.S.C. s 1654, defendants in federal court have the statutory right to self-representation. The question before the court was whether Chapman had asserted that right in a timely manner. However, even though it may be contained in Obiter dictum, we need to explore Chapman to see if it might tell us what the state of the law was in this circuit between MacKenna and Faretta.
Chapman held that a demand by a state criminal defendant for absolute self-representation must be honored if it is unequivocally asserted in a timely manner. The court stated at page 889:
Thus, for the first time the Fifth Circuit mentions the absolute right to self-representation, or, in other words, whether the Constitution prohibits the forcing of an attorney on a state criminal defendant who wants to represent himself. This statement was based upon the Supreme Court's pronouncement in Faretta.
The United States attempted to argue that Faretta was not applicable because it could not apply retroactively. They also argued that Chapman's absolute right to self-representation in his federal case was based upon statutory grounds (28 U.S.C. s 1654) rather than constitutional ones, and, therefore, the harmless error doctrine applied.
The remainder of the court's ruling of interest in this case is the conclusion that the court was not faced with an issue of the retroactivity of Faretta. The court stated at page 890:
If MacKenna stands for the proposition that Chapman says it does, then the original MacKenna case would not have been remanded. If MacKenna had an absolute right to self-representation, his petition would have been granted and the Writ of Habeas corpus issued. This must be so because he was represented by court-appointed counsel, over his objections, and yet the Fifth Circuit did not say "your constitutional rights have been violated so we will grant you relief." Instead, they ordered the case remanded to determine whether his attorneys were ineffective and incompetent. That question did not have to be answered if forced counsel, by itself, violated the constitutional rights of a state criminal defendant.
This is supported by Juelich, Supra, as explained above. Realizing that that decision applied the harmless error doctrine, even though it dealt with a federal case, not a state case, the Chapman court stated at page 891 in footnote 9:
If Adams, Supra and MacKenna made it a constitutional violation to force counsel on a state criminal defendant, Faretta would not have been a landmark case. Additionally, MacKenna would be in direct conflict with Adams. The law of the land would have been decided in 1942 in Adams where the court states 317 U.S. at page 279, 63 S.Ct. at 242: "the Constitution does not force a lawyer upon a defendant." Yet that phrase for 33 years, until 1975, was never held to mean that forcing such counsel would be a constitutional violation. If Adams had so held, then the MacKenna court would have granted the writ. A Per se constitutional violation would have taken place.
The Supreme Court in Faretta cites Adams at 422 U.S. page 814, 95 S.Ct. at page 2531, and states that the:
While Chapman says that the law in this circuit since MacKenna has been that a "court is not justified in imposing assigned counsel on the defendant against his will" it never accorded such a statement its rightful constitutional position until 1977. The Chapman court stated at page 890:
Such a holding shows that the court violated the sacred rule of constitutional law that a court should never reach a constitutional issue when the case can be resolved on other grounds. United States v. Rias, 524 F.2d 118 (5th Cir. 1975); Ashwander v. TVA, 297 U.S. 288, 56 S.Ct. 466, 80 L.Ed. 688 (1936). Chapman could have been decided under 28 U.S.C. s 1654, and there was no need for the court to reach any constitutional issues. Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Hagans v. Lavine, 415 U.S. 528, 94 S.Ct. 1372, 39 L.Ed.2d 577 (1974).
No one doubts that prior to Faretta the Fifth Circuit explicitly said that the right to defend Pro se is guaranteed by the Fifth and Sixth Amendments. However, this is not the same thing as saying that the "forcing of any attorney" on a state criminal defendant violates the Constitution. Not until 1977, in Chapman which followed Faretta by two years, was this latter rule pronounced in this Circuit.
Faretta and Chapman do forge a new constitutional rule. Until these decisions, the cases had only directed state trial judges to allow criminal defendants, under certain circumstances, to knowingly, intelligently, freely, and voluntarily waive their right to the assistance of counsel. These prior cases did not say that the Constitution requires all such defendants to be assisted by counsel. Now, subsequent to Faretta and Chapman, state trial judges know that forcing an attorney on one who has a constitutional right to absolute self-representation may violate that right.
The question here is not that of abandoning Stare decisis and overruling a prior constitutional decision, Burnett v. Coronado Oil & Gas Co., 285 U.S. 393, 52 S.Ct. 443, 76 L.Ed. 815 (1932), but rather, that of a new
interpretation of what an already founded constitutional right means. As in Miranda v. Arizona, 384 U.S. 436, 442, 86 S.Ct. 1602, 1611, 16 L.Ed.2d 694 (1966), the holding of Faretta and Chapman were not "innovation(s) in our jurisprudence, but (are) an application of principles long recognized and applied in other settings." Here, the principle was applied for the first time in 1975. (For a recent discussion of the difference between holdings and dicta as it relates to Stare decisis, see "Stare Decisis," 79 F.R.D. 509.)
Upon this closer look, it becomes clear that prior to Faretta, it had not been specifically held that a defendant in a state court criminal trial had an absolute right to defend Pro se. Petitioner's reliance on MacKenna and its progency is misplaced.
While it may appear that this conclusion avoids the language of Garcia and Chapman as they interpret MacKenna, neither case, nor any others in this circuit prior to Faretta, held that it is a constitutional violation to force counsel on a Pro se state criminal defendant. This court only concludes that while the law in this circuit between MacKenna and Faretta was that the right to Pro se representation is rooted in the Fifth and Sixth Amendments, until Faretta, it was not decided that those same amendments meant that forcing an attorney would deprive a state criminal defendant of those constitutional protections.
Support for this distinction between the right of a criminal defendant to waive counsel and defend Pro se, is found in those cases dealing with a defendant's right to waive a jury trial. In Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 620 (1965), on certiorari to the Supreme Court, Singer challenged the trial court's refusal to allow the waiver of a jury trial. Petitioner argued that a defendant in a federal criminal case has not only an unconditional constitutional right to a trial by jury, but also a correlative right to waive a jury and have his case decided by a judge alone. The petitioner's contention was based on the case of Patton v. United States, 281 U.S. 276, 50 S.Ct. 253, 74 L.Ed. 854 (1930) which held that in some instances a defendant can waive his right to a trial by jury. In rejecting the petitioner's argument, the court observed that:
The court in Faretta recognized this axiom, saying that: "(T)he inference of rights is not, of course, a mechanical exercise." Faretta, supra, 422 U.S. at 819, 95 S.Ct. at 2533, footnote 15. Moreover, the court thereupon followed the reasoning of Singer, stating:
If, as it is concluded above, MacKenna and its progeny hold only that a criminal defendant has the constitutional right to waive the assistance of counsel, then, prior to Faretta, even in the Fifth Circuit, the question of whether a trial court could force counsel on a defendant without violating the defendant's constitutional rights was unanswered.
II. RETROACTIVITY OF FARETTA
The Petitioner's second contention is that the absolute rule of Faretta v. California, supra, should be applied retroactively. The Fifth Circuit has not ruled directly on this issue. In Stepp v. Estelle, 524 F.2d 447 (5th Cir. 1975), the principles laid down in Faretta regarding self-representation were reviewed. The case, however, is inapposite. There, the petitioner in a s 2254 action, sought relief from a state court conviction on the grounds that his waiver of counsel
had not been knowing and intelligent. The district court's grant of the writ was reversed on the basis that the petitioner had been competent to defend Pro se and, therefore, his waiver of counsel was valid. Faretta was raised only to determine whether the petitioner's self-representation was itself a violation of a constitutional right. The court's holding was in line with the requirements originally announced in Johnson v. Zerbst, 304 U.S. 458, 468, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) dealing with waiver of constitutional rights.
The case of Chapman v. United States, supra, is again not determinative. Although the language there would indicate that the Fifth Circuit is leaning toward retroactivity, such pronouncements can only be viewed as Dict. The court expressly stated that the question of retroactivity was not then an issue.
Therefore, without solid precedent in the Fifth Circuit to guide this decision, other jurisdictions and circuits may be consulted. The issue of retroactivity is governed generally by the criteria enunciated in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967) where it was said:
The California Supreme Court in People v. McDaniel, 16 Cal.3d 156, 127 Cal.Rptr. 467, 545 P.2d 843 (Cal.1976), Cert. denied, 429 U.S. 847, 97 S.Ct. 131, 50 L.Ed.2d 119 (1976), a unanimous decision, after applying the Stovall criteria, held that Faretta should not be applied retroactively even to cases on direct appeal. The Eighth Circuit in Martin v. Wyrick, 568 F.2d 583 (8th Cir. 1978), Cert. denied, 435 U.S. 975, 98 S.Ct. 1623, 56 L.Ed.2d 69, approved of the California court's analysis in its decision to deny retroactive application in a case where the issue was squarely presented. The Eighth Circuit's reasoning is persuasive. First, the court found that the purpose of Faretta was not to enhance the reliability of the truth-determining or fact-finding process and, therefore, little or no weight is added to the balance in favor of retroactive application since litle or no prejudice in the trial itself is suffered by an accused whose guilt was determined without benefit of the new rule. Second, since the long-recognized practice was to place self-representation within the discretion of the court, justifiable reliance also favored non-retroactivity. Finally, recognizing that retroactive application could require new trials for a number of convicted persons, retroactive application of the rule would have an adverse effect on the administration of justice. This analysis holds true in the case at hand. In light of these decisions and the absence of direct authority in the Fifth Circuit, Faretta should not be applied in this case.
Consequently, Petitioner is incorrect on both of his contentions.
RECOMMENDATION
For the foregoing reasons, the Petition should be DENIED and this case dismissed.