Elliоtt Finch, Jr., Plaintiff - Appellee v. Dexter Payne, Director, Arkansas Department of Correction, Defendant - Appellant
No. 19-2369
United States Court of Appeals For the Eighth Circuit
Filed: December 18, 2020
Submitted: September 22, 2020
Appeal from United States District Court for the Eastern District of Arkansas - Pine Bluff
Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
A Pulaski County, Arkansas, jury convicted Elliot Harold Finch, Jr. of aggravated residential burglary, aggravated assault on a family or household member, and first-degree terroristic threatening. Finch was subject to a firearm enhancement and sentenced as a habitual offender, resulting in a sentence of life imprisonment plus 15 years in the Arkansas Department of Corrections and a $10,000 fine. Finch appealed his conviction to the Arkansas Supreme Court, alleging that he was denied his Sixth Amendment right to self-representation and that he was prejudiced by juror misconduct. The Arkansas Supreme Court affirmed the conviction. Finch challenged his conviction under
I.
On August 22, 2013, Finch entered his ex-girlfriend‘s house by breaking through a window. His ex-girlfriend was home with her two children and was taking a shower. Finch met her at gunpoint as she exited the shower and threatened to kill her, her children, and himself. The ex-girlfriend attempted to calm Finch down, eventually resorting to sexual intercourse with him to alleviate the immediate threat of violence. Finch did not leave the home after having sex with the ex-girlfriend. He stayed the night, sleeping in the ex-girlfriend‘s bed with her, but positioning himself between her and the door so she could not leave without his knowledge. The next morning, Finch allowed the ex-girlfriend to leave for work. She took her nine-year-old daughter with her but was unable to wake up her teenage son, who was on medication. After leaving, the ex-girlfriend called the police, and Finch was subsequently arrested. Finch was charged with kidnapping, aggravated residential burglary, possession of firearms by certain persons, aggravated assault on a family or household member, and first-degree terroristic threatening.
Finch received court-appointed counsel, and the matter proceeded to trial. At some point during the pretrial proceedings, Finch became frustrated with his court-appointed counsel. At a Seрtember 22, 2015 omnibus hearing, Finch requested to speak and informed the court that he wanted new counsel. R. Doc. 7-2, at 328. The trial judge denied the request. R. Doc. 7-2, at 328. At an October 19, 2015 hearing, Finch stated: “I want to represent myself then“; “I want to represent myself.“; “I
Thereafter, Finch filed a handwritten motion to waive counsel and proceed pro se, citing Faretta v. California, 422 U.S. 806 (1975). R. Doc. 7-2, at 136. On March 10, 2016, the court conducted a hearing to discuss Finch‘s second Act 3 evaluation report, where Finch‘s counsel brought the pending motion to the court‘s attention. R. Doc. 7-3, at 40. The court and the prosecution acknowledged Finch‘s request, and the court engaged Finch in a colloquy regarding his knowledge of the judicial system. See R. Doc. 7-3, at 40-51. While Finch wished to proceed pro sе, he inquired about the availability of “standby counsel.” R. Doc. 7-3, at 50. Ultimately, the trial judge denied the motion “based on the seriousness of the offenses and the likelihood of [Finch] getting some serious time.” R. Doc. 7-3, at 51. The case proceeded to trial with Finch‘s court-appointed attorney. The jury convicted Finch of aggravated residential robbery, aggravated assault on a family or household member, and first-degree terroristic threatening and was unable to reach a verdiсt on kidnapping, resulting in a mistrial on that charge.3 Finch received an aggregate sentence of life imprisonment plus 15 years and a $10,000 fine.
Finch appealed his conviction to the Arkansas Supreme Court, arguing that he had been denied his Sixth Amendment right to self-representation and that he had been prejudiced by juror misconduct. The Arkansas Supreme Court found that the trial court‘s inquiry “included irrelevant concerns, such as [Finch]‘s level of education and technical legal knowledge, and the court‘s stated basis for denying the request . . . was invalid.” Finch v. State, 542 S.W.3d 143, 145 (Ark. 2018). The Arkansas Supreme Court nonetheless held, under its independent review, that Finch‘s request was not unequivocal and that “the trial court could have concluded that [Finch] had ‘engaged in conduct that would prevent the fair and orderly exposition of the issues.‘” Id. Based on these holdings, the Arkansas Supreme Court determined that Finch had not invoked his right to defend himself pro se. The court additionally found that Finch “could not show a reasonable possibility of prejudice” to succeed on his juror misconduct claim and affirmed his conviction. Id. at 149.
Finch then sought a writ of habeas corpus pursuant to
The district court approved and adopted the magistrate judge‘s report and recommendation and granted Finch‘s habeas petition, directing the State to either release Finch or provide him with a new trial within 120 days of the order. The State appealed the district court‘s findings. Only Finch‘s Sixth Amendment claim is before this Court on appeal.
II.
“On appeal from a district court‘s grant of a habeas petition, we review the distriсt court‘s findings of fact for clear error, and its conclusions of law de novo.” Franklin v. Hawley, 879 F.3d 307, 311 (8th Cir. 2018) (quoting Escobedo v. Lund, 760 F.3d 863, 868 (8th Cir. 2014)). However, because Finch‘s petition is based on a state court adjudication, we are further restricted by the limitations set forth in
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudicatiоn of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing evidence.
Section 2254(d)(1) clearly refers to situations where a “state court applies a rule that contradicts the governing law set forth in [the Supreme Court‘s] cases” or where it “confronts a sеt of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). This category of cases can be described as those presenting “questions of law,” or purely legal issues. The magistrate judge employed this aspect of
However,
“In the
This distinction is critical because the Arkansas Supreme Court‘s determinations, as facts applied to law, are not afforded the “presumption of correctness” of
basic, primary, or historical facts: facts “in the sense of a recital of external events and the credibility of their narrators . . . .” So-called mixed questions of fact and law, which require the application of а legal standard to the historical-fact determinations, are not facts in this sense.
Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (alteration in original) (citation omitted). In this case, the relevant historical facts of Finch‘s case are immortalized in the respective court transcripts and filings and are undisputed by the parties. We are tasked only with considering whether “the[es] historical facts . . . satisfy the legal test chosen.” Guerrero-Lasprilla, 140 S. Ct. at 1069 (citation omitted). Therefore, our review is limited to determining only whether the Arkansas Supreme Court‘s disposition of Finch‘s case “involved an unreasonable application of[] clearly established Federal law.”
Under
A.
The State first contends that the Arkansas Supreme Court reasonably determined that Finch‘s invocation of self-representation was equivocal. “The Sixth Amendment . . . implies a right of self-representation.” Faretta, 422 U.S. at 821. “‘If [a defendant‘s] request’ to ‘assert his right to self-representation’ ‘is clear and unequivocal, a Faretta hearing must follow.‘” United States v. Kelley, 787 F.3d 915, 918 (8th Cir. 2015) (alteration in original) (quoting Bilauski v. Steele, 754 F.3d 519, 522 (8th Cir. 2014)). “Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.” Bilauski, 754 F.3d at 523 (citation omitted).
[W]hen a defendant in a criminal case has moved to represent himself and the court has not entered a ‘clear’ and ‘conclusive[]’ denial, it is incumbent on the defendant to ‘reassert his desire to proceed pro se‘; his failure to do so . . . ‘constitute[s] a waiver of his previously asserted Sixth Amendment’ right to proceed pro se.
Id. at 522 (quoting United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012)). “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.‘” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (citation omitted).
At the trial court level, Finch made no less than two requests to proceed pro se: October 19, 2015, and February 25, 2016. At the October 19, 2015 omnibus hearing, Finch stated: “I want to represent myself then.“; “I want to represent myself.“; “I want to represent myself, your Honor. And that‘s all I‘m telling you.“; and
After this “clear” and “conclusive” denial, Finch was under no further obligation to reassert his Sixth Amendment right to self-representation. Bilauski, 754 F.3d at 522; Wilson, 204 F.3d at 37. Nevertheless, Finch continued to passionately pursue his constitutional right. On February 25, 2016, Finch filed a pro se motion to waive counsel, citing Faretta and requesting a hearing. The motion was addressed at the March 10, 2016 hearing, but only after Finch‘s court-appointed counsel brought it to the attention of the trial court. The State is quick to point out Finch‘s requests for “new counsel” and “standby counsel” during this colloquy, but in doing so, it ignores its own request to view Finch‘s invocations in a contextual setting.6 Every party to the hearing—the trial court, the prosecutor, the court-appointed defense counsel, and Finch—understood Finch‘s request to be an invocation of his right to proceed pro se. The trial court again questioned Finch regarding matters irrelevant to a Faretta analysis, such as Finch‘s technical legal knowledge. The trial court denied Finch‘s motion “based on the seriousness of the offenses and the likelihood of [Finch] getting some serious time,” which, as the Arkansas Supreme Court identified, are “invalid” bases for denying Finch‘s Sixth Amendment right to self-representation. See Finch, 542 S.W.3d at 146; see also Faretta, 422 U.S. at 834 (“[A]lthough he may conduct his own defense ultimately tо his own detriment, his choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.‘” (citation omitted)).
The Arkansas Supreme Court failed to identify any other basis for finding that Finch‘s requests were equivocal. Applying the historical facts of the record to Faretta, we conclude that Finch clearly and unequivocally invoked his right to self-representation. As soon as Finch manifested this clear and unequivocal invocation, the proceedings should have paused, and the trial court should have conducted a proper Faretta hearing. The Arkansas Supreme Court‘s finding to the contrary is objectively unreasonable.
B.
The State next contends that the Arkansas Supreme Court‘s determination that “the trial court could have concluded that [Finch] had ‘engaged in conduct that would prevent the fair and orderly exposition of the issues‘” was a reasonable determination under
Finch‘s behavior is starkly mild compared to the level of obstructionist conduct outlined above. At worst, Finch spoke out of turn during two hearings and refused to comply with a portion of a mental evaluation he did not wish to use in his defense. Whilе Finch‘s behavior is not that of the model defendant, we can understand the frustration of an individual who is attempting to assert his Sixth Amendment right, only to be ignored and forced to participate in a defense that is not his. See Faretta, 422 U.S. at 834 (“To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defеnse.“).
There is no evidence in the record that Finch was attempting to manipulate, subvert, or delay the trial process. In contrast, Finch regularly upheld decorum by referring to the trial court judge as “sir” and “Your Honor,” and was responsive to the court‘s questioning. See Finch, 543 S.W.3d at 154 (Hart, J., dissenting). The record does not support a finding that Finch engaged in serious and obstructionist misconduct, and the Arkansas Supreme Court‘s finding to the contrary is objectively unreasonable.
C.
Finally, the State contends that the district court erred by treating as dicta the Arkansas Supreme Court‘s determination that Finch was not capable of “knowingly and intelligently” waiving his right to counsel. “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.” Faretta, 422 U.S. at 835 (citation omitted). The Arkansas Supreme Court mentioned this “knowingly аnd intelligently” requirement,7 but the magistrate judge determined that such reference was dicta and not a basis of the
However, in its objection to the magistrate judge‘s findings and recommendation, the State objected to the characterization of the Arkansas Supreme Court‘s determination as dicta on a completely separate basis, arguing that it was a factual determination relating to Finch‘s alleged obstructionist conduct with no reference to the requirement of a “knowing and intelligent” waiver under Faretta. The argument of whether Finch knowingly and intelligently waived his right to counsel was not presented to the district court, and “this court will not [ordinarily] consider arguments raised for the first time on appeal.” Wiser v. Wayne Farms, 411 F.3d 923, 926 (8th Cir. 2005); see also Barnett v. Roper, 541 F.3d 804, 807-08 (8th Cir. 2008). Therefore, because the State failed to present this argument to the district court, it has been waived on appeal.
III.
As the Supreme Court stated in Faretta:
The right to defend is personal. The defendant, and not his lawyer or the [State], will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect for the individual which is the lifeblood of the law.”
422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan, J., concurring)).
The judgment of the district court is affirmed.
Notes
A defendant may waive the right to counsel and invoke his right to defend himself pro se provided that (1) the request to waive the right to counsel is unequivocal and timely asserted, (2) there has been a knowingly and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.
Finch, 542 S.W.3d at 145-46. The magistrate found that this articulation was not contrary to, or an unreasonable aрplication of, Faretta.