In our opinion, this reason for granting the writ is contrary to the facts shown by the record and is without substance." United States ex rel. Fletcher v. Maroney, 280 F. Supp. 277. 278-279 (W.D.Pa. 1968) (opinion of February 28, 1968). Judge Marsh's findings were also accepted by subsequent courts in which Fletcher relitigated this claim.
In addition, the petition included numerous affidavits from persons whom the petitioner claimed could fully establish his innocence of the charge of receiving stolen goods. United States District Court for the Western District of Pennsylvania, Civil Action No. 67-1384, 280 F. Supp. 277. Based on a review of the record of the state proceedings, the district judge concluded that the guilty plea had been "knowingly and intelligently entered," and viewed the submitted affidavits as "ineffective in the face of his voluntary pleas of guilty."
Id. at 100. See also United States v. Maroney, 280 F. Supp. 277, 279 (W.D.Pa. 1968); Moultrie v. State, 584 S.W.2d 217, 219 (Tenn.Ct. of Crim. Appeals 1978). In Mendenhall v. Hopper, 453 F. Supp. 977, 983 (S.D.Ga. 1978), aff'd without published opinion, 591 F.2d 1342 (5th Cir. 1979), the petitioner, who had pled guilty to two counts of murder in the first degree and one count of aggravated assault in a Georgia court, sought federal habeas corpus relief. The state court trial judge who sentenced Mendenhall had "while in private practice, conferred with Mr. Mendenhall and his wife concerning the possibility of handling the defense", id. at 979 n. 1, in the very case in which the trial judge later presided, but had not entered into an attorney-client relationship with the plaintiff.
This proposition of law is supported by numerous cases. E.g., United States v. Davis, 365 F.2d 251, 254 (6th Cir. 1966); United States v. Burkeen, 355 F.2d 241, 245 (6th Cir. 1966); Nash v. Reincke, 325 F.2d 310, 312 (2d Cir. 1963), cert. denied 377 U.S. 938, 84 S.Ct. 1345, 12 L.Ed.2d 302 (1964); United States v. Gutterman, 147 F.2d 540, 542 (2d Cir. 1945); United States v. Gross, 298 F. Supp. 449 (D. Iowa 1968); United States ex rel. Fletcher v. Maroney, 280 F. Supp. 277, 279 (W.D.Pa. 1968); Wilson v. United States, 215 F. Supp. 661, 663 (W.D.Va. 1963); United States ex rel. Mitchell v. Thompson, 56 F. Supp. 683, 688-689 (S.D.N Y 1944). There is additional authority which stands opposed to plaintiff's claimed constitutional right to have appointed counsel of his choice.
III. As no harm or injury is shown to Petitioner, nor is it shown that in any way he received an unfair trial as a result thereof, the Petitioner's application for a writ of habeas corpus is denied on the ground that his court-appointed attorney, Mr. Pat Walker, was at such time the partner of the County Attorney of Garza County. In cases such as this where a potential conflict of interest is shown but where there is no showing of harm, prejudice or injury to Petitioner's defense, other courts have denied habeas corpus relief. See United States ex rel. Fletch v. Maroney, 280 F. Supp. 277, 279 (W.D.Pa. 1968). Accordingly, there is no reason for this Court to hold that these allegations constitute valid grounds for granting a writ of habeas corpus.
Therefore, we conclude that the trial judge was not required to recuse himself merely because he had prosecuted defendant in a different case. See, e.g., United States ex rel. Fletcher v. Maroney, 280 F. Supp. 277, 279 (W.D. Pa. 1968) ("The fact that the Judge, when District Attorney, had previously prosecuted [defendant] on a charge of murder, which trial resulted in his acquittal, is not, standing alone, a fact requiring disqualification."). Because the facts alleged would not raise a reasonable question about the trial judge's impartiality "in the mind of an observer who is well-informed, thoughtful, and objective," Owens, 219 P.3d at ___, the trial court did not err in refusing to grant defendant's motion to recuse.
Appellant may not frustrate or obstruct the orderly procedure of the court and the administration of justice by continual insistence o[n] representation by private counsel, even though unable to afford such representation, or the continual refusal of the services of the public defender. See United States exrel. Fletcher v. Maroney, 280 F. Supp. 277 (W.D.Pa.), cert. denied, 393 U.S. 873, 89 S.Ct. 164, 21 L.Ed.2d 142 (1968); Commonwealth v. Puntari, 198 Pa. Super. 70, 181 A.2d 719 (1962). However, as in the instant case, the intransigent behavior by the appellant does not negate the requirement for a full and complete colloquy in order that appellant may make a competent and intelligent waiver of his right to counsel.
The cases in other jurisdictions are in accord that the fact that the trial judge prosecuted the defendant for other offenses while he was district attorney is not, in and of itself, ground for disqualification. See, In ReGrand Jury Investigation, 486 F.2d 1013 (3 Cir., 1973); Gravenmier v. U.S., 469 F.2d 66 (9 Cir., 1972); U.S. ex rel.Fletcher v. Maroney, 280 F. Supp. 277, W.D.Pa., 1968); State v.Maduell, 326 So.2d 820 (La., 1976); Satterlee v. State, 549 P.2d 104 (Okl.Cr., 1976); Sam v. State, 510 P.2d 978 (Okl.Cr., 1973); People v. Tartaglia, 73 Misc.2d 506, 342 N.Y.S.2d 998 (1973); Maloney v. Maxwell, 174 Ohio St. 84, 186 N.E.2d 728 (1962). "It is of course well settled that the mere fact that the trial judge personally prosecuted the [defendant] in past crimes does not disqualify him from presiding over a trial where a new offense is charged."
The choice of counsel is the prerogative of the court, and is exercised at its discretion. United States ex rel. Fletcher v.Maroney, 280 F. Supp. 277 (W.D. Pa.), cert. denied, 393 U.S. 873 (1968). Appellant's right to counsel does not give him the right "to delay the trial indefinitely because he is dissatisfied with competent counsel appointed by the court, ready and willing to represent him."
Appellant may not frustrate or obstruct the orderly procedure of the court and the administration of justice by continual insistence of representation by private counsel, even though unable to afford such representation, or the continual refusal of the services of the public defender. See United States exrel. Fletcher v. Maroney, 280 F. Supp. 277 (W.D. Pa.), cert.denied, 393 U.S. 873 (1968); Commonwealth v. Puntari, 198 Pa. Super. 70, 181 A.2d 719 (1962). However, as in the instant case, the intransigent behavior by the appellant does not negate the requirement for a full and complete colloquy in order that appellant may make a competent and intelligent waiver of his right to counsel.