Emmett JONES, Petitioner-Appellant, v. David JAMROG, Warden, Respondent-Appellee.
No. 03-1665.
United States Court of Appeals, Sixth Circuit.
Submitted: Feb. 3, 2005. Decided and Filed: July 5, 2005.
414 F.3d 585
In addition to appealing the district court‘s order granting Long John Silver‘s motion to compel arbitration, Johnson also appealed the district court‘s disposition of several other motions. Specifically, Johnson appealed (1) the district court‘s order denying Johnson‘s motion for a case status conference; and (2) the district court‘s order affirming the magistrate‘s order denying Johnson‘s motions to compel discovery and denying a motion for expedited court service and disclosure of the identities of similarly situated employees. The basis for the first order was included in the district court‘s published opinion, id. at 670. The second order, regarding discovery, expedited court service, and disclosure, was issued separately on November 24, 2003.
Again, the district court did not err in its disposition of Johnson‘s motions, and adequately addressed Johnson‘s arguments in its opinions. The district court‘s denial of Johnson‘s motion for a case status conference is therefore affirmed on the basis of the reasoning detailed in the published opinion, id. The district court‘s order denying compelled discovery, expedited court service, and compelled disclosure of the identities of similarly situated employees is affirmed on the basis of the reasoning set forth in the November 24, 2003, order of Judge Wiseman.
The judgment of the district court is AFFIRMED.
Emmett A. Jones, Carson City, Michigan, pro se.
Before: SILER, COLE, and CLAY, Circuit Judges.
CLAY, J., delivered the opinion of the court, in which COLE, J., joined. SILER, J. (pp. 594-96), delivered a separate dissenting opinion.
CLAY, Circuit Judge.
Emmett Jones appeals the denial of his petition for a writ of habeas corpus. See
I.
In 1999, Jones stood trial in Michigan for felonious assault.
At a hearing on the motion before a second judge, the judge asked Jones whether he was dissatisfied with his lawyer‘s services. Jones responded by saying, “my request to represent myself was based on other matters, which I could explain to the Court ....” Jones explained he had “no other choice ... other than self-representation” because of the court‘s order that he not speak in court and because of its ruling that “Defense Counsel was not to provide [him] with any copies of discovery materials or police reports or other court documents.” In particular, Jones continued, “for a defendant to be able to [ ] assist in his defense he must be able to make informed decisions. If I am denied copies of police reports and other basic discovery materials I cannot make
Jones‘s remarks to the judge were not brief; he expounded on the constitutional right to represent oneself, citing, we imagine (the transcript is unclear), Faretta v. California,2 for the proposition that, in Jones‘s words, “counsel suffers no penalty if he loses the case ... being that I‘m the one that suffers the penalty that the decision is to be made in this case are left are mine. And, because the decisions are mine I cannot make informed decisions, I cannot prepare for my defense, [ ] without this discovery material.” When asked by the judge, Jones‘s lawyer confirmed his client‘s motivations; the lawyer explained, “if the only way he can get copies of the police reports and the other discovery material that‘s come along with the police reports is to be represented [sic] himself then that‘s what he wishes to do ....” Ultimately the judge referred the motion to withdraw to a third judge, who was to preside at Jones‘s felonious assault trial. Nevertheless, the hearing judge did comment on Jones‘s request. Citing Michigan‘s standard for waiving the right to counsel, the judge ventured that Jones‘s request was not unequivocal, as the cases of the Michigan Supreme Court require, “because you‘re saying, Well, I have no choice but to do this because I disagree with this other ruling [i.e., the original judge‘s ruling that Jones would not be exempted from the state‘s policy regarding discovery material].” The judge also noted: “... it seems to me that in a word your problems are not with [counsel] but your problems are with his compliance with some rules that he didn‘t create.”
When the motion to withdraw came before the trial judge, Jones again explained his position: “Sir, I—I need to be able to assist my attorney. I need to be able to answer his questions. I need to be able to make informed decisions. And, when I don‘t have access to this material I ca—I can neither study it or make those informed decisions, which makes me give my attorney incompetent answers, answers which are not informed. And, so I‘m not—I‘m—you know, I‘m not capable of assisting in my own defense.” The judge asked Jones‘s lawyer for his thoughts on the matter and he argued that the state‘s discovery policy was at odds with Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), because it had the effect of limiting a defendant‘s access to materials that might be critical to his defense. According to Jones‘s lawyer, the effect of the discovery policy was most severe in a case like Jones‘s because he was incarcerated. The lawyer suggested he could not visit the jail frequently enough for his client to have a sufficient opportunity to review the materials. Consequently, the only way for Jones to circumvent this obstacle to preparing his defense was to represent himself. The judge was unmoved by these arguments; he seemed more concerned with whether Jones had been afforded at least some opportunity to review the materials and to discuss them with his lawyer. Because the lawyer had visited Jones at least a few times, the judge was satisfied.
There was then an exchange between the court and Jones regarding whether Jones‘s request was unequivocal:
THE COURT: ... do you think—let me—let me ask you this: Are
JONES: Um, if the—yeah. Yes, it will be if the, you know, if the Court—If I‘m—I‘m—if I‘m gonna be denied this material I would make up my request as unequivocal. You know, there is no other way that I could be of—I feel that I be assured of a fair trial, other than for me to represent myself. This is for me to get this material....
THE COURT: But,—but you tell me in the same breath that if you had the police reports and copies of all the stuff you want you‘d want Mr. Getting [Jones‘s lawyer] to rep—you‘d want the assistance of -
JONES: I would allow Mr. Getting to rep—I mean—I mean, I‘m not trying—I would rather not represent myself.
Following this exchange, the judge issued his ruling, citing the Michigan Supreme Court‘s cases on self-representation.3 The judge observed that “the thrust of all of these holdings is that a defendant‘s request to represent himself must be unequivocal. He must assert this right to self-representation knowingly, intelligently and voluntarily.” The judge concluded that Jones‘s request did not meet these criteria. The request was not unequivocal because the only rationale expressed by Jones “for discharging his attorney, at this time, is to get a copy of the police report; and, thereby, to represent himself. That is not, I think, a statement of unequivo[cality] [sic] that is required and mandated by the case law.” In the judge‘s view, “what really this gets down to is a question of the propriety of—of withholding a police report from the custody or possession of a defendant.” For two primary reasons, the judge concluded the application of the state‘s discovery policy to Jones‘s case was not improper. First, Jones had been afforded an opportunity to review the materials which he was not permitted to possess, to discuss them with his attorney, and to contact state witnesses listed. Second, there were good reasons for the discovery policy, including the state‘s interest in avoiding the high cost of copying the materials for all criminal defendants and the need to protect the privacy of potential witnesses. An additional factor rounded out the judge‘s analysis of Jones‘s request to represent himself; the judge observed at multiple points that Jones and his lawyer had not had significant disagreements regarding trial strategy.
Finally, the judge held as follows:
All things considered, I think that the position that the Defendant takes is one which, A. Is unreasonable; and, Number two, emphasizes the—the equivocality [sic] of his position in his desire to represent himself. ... [O]n the record made here today, I cannot find that his request was [ ] unequivocal, and even if it was that it was voluntarily made.... There is no dispute concerning strategies. I find that his request to represent himself, while not being made directly, is made indirectly, and in the format of Mr. Getting‘s motion; and, accordingly, I find that that request is not unequivocal, in other words, he is equivocating. And, furthermore, [ ] any
The case went to trial and a jury convicted Jones of felonious assault. He was sentenced to 5 to 8 years in prison.
II.
Jones moved for reconsideration and sought a new trial; the trial court denied these requests and Jones appealed. The Michigan Court of Appeals affirmed. People v. Jones, 2001 WL 726966 (Mich.Ct.App. Feb.23, 2001) (unpublished opinion). It held that under Michigan law a request to proceed pro se must be unequivocal, knowing, intelligent, and voluntary. Jones‘s request met none of these criteria, in the appeals court‘s view, because “although [he] adamantly expressed his desire to represent himself and insistently reminded the court of his right to do so, his desire was clearly contingent on how the court ruled with respect to [his] requests that counsel supply him with copies of various documents, and that he be allowed to directly address the court at will.” Id. at * 1. The appeals court further noted that Jones “himself characterized his request to waive counsel and to represent himself as involuntary, claiming that he ‘had no choice’ but to take the course of action based on the court‘s refusal to comply with his demands, although he would ‘rather not’ represent himself.” Id. Jones applied for leave to appeal to the Michigan Supreme Court but the application was denied. People v. Jones, 465 Mich. 859, 632 N.W.2d 142 (2001).
In a petition he filed pro se in the Eastern District of Michigan pursuant to
III.
In a habeas corpus appeal, we review the district court‘s legal conclusions de novo and its factual findings for clear error. E.g., Vincent v. Seabold, 226 F.3d 681, 684 (6th Cir.2000); Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir.2000). Because this case is controlled by the Anti-Terrorism and Effective Death Penalty Act of 1996 (“AEDPA“), we may only overturn the district court and grant a writ of habeas corpus if the state court‘s decision “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
IV.
In this case, the universe of clearly established federal law as determined by the Supreme Court,
In Faretta, the Supreme Court held that the right to represent oneself in a criminal trial is an independent and affirmative right that inheres in the structure of the Sixth Amendment, i.e., not merely a corollary of the right to waive the assistance of counsel. Id. at 819. The Court explained:
The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be “informed of the nature and cause of the accusation,” who must be “confronted with the witnesses against him,” and who must be accorded “compulsory process for obtaining witnesses in his favor.” Although not stated in the Amendment in so many words, the right to self-representation—to make one‘s own defense personally—is thus necessarily implied by the structure of the Amendment. The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.
Id. at 819-20 (footnote omitted) (quoting
The Court affirmed the right of self-representation at trial in these bold terms even while admitting that “the right of an accused to conduct his own defense seems to cut against the grain of this Court‘s decisions holding that the Consti-
In this case, Jones considered his circumstances and decided that “in his particular case counsel [was not] to his advantage.” Faretta, supra, at 835. In accordance with its discovery policy, the state refused to turn over police reports to him, instead providing them only to his attorney. Jones was able to review the reports and discuss them with his attorney, but only when his attorney was available to do so and only for as long as the attorney had time. Consequently, the state‘s discovery policy presented Jones with a real-world obstacle that he had no choice but to negotiate. The approach he selected was to forgo his right to counsel in order that he might have more time to review the police reports and do counter-investigative work in preparation for his defense at trial. The mere fact that this approach had an obvious and significant cost—the relinquishment of a lawyer‘s assistance—does not mean that Jones‘s decision to pursue the approach was involuntary.
Faretta itself requires this conclusion. In Faretta, the defendant was faced with essentially the same obstacle that confronted Jones—all the attorneys likely to be assigned his case were overloaded with work and therefore not likely to be committed to it. 422 U.S. at 807 (observing that Faretta “did not want to be represented by the public defender because he believed that that office was ‘very loaded down with ... a heavy case load’ “). He asked the court to assign him a lawyer who was not a public defender, but the court refused. Id. at 811 n. 5. Faretta then announced his intention to represent himself and the trial judge warned him against it. Nonetheless, Faretta stood his ground. Because “[t]he record show[ed] that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his free will,” and because he “clearly and unequivocally declared to the trial judge that he wanted to represent himself,” the Supreme Court held that it was constitutional error not to honor the request. Id. at 835-36. The reason Faretta cited for wanting to proceed pro se did not make him any less competent, nor his decision any less voluntary. This is because Faretta‘s reason was not that he was being coerced to proceed without counsel but that he concluded it was in his best interest under the circumstances. It follows that in cases where there is no suggestion of coercion, an interpretation of Faretta that attaches determinative weight to an otherwise competent defendant‘s reason for wanting to proceed pro se is unreasonable. But this unreasonable interpretation of Faretta is precisely the one to which the state courts adhered in Jones‘s case. The Michigan Court of Appeals on the one hand acknowledged that Jones “adamantly expressed his desire to represent himself and insis-
It is true that Jones‘s request was contingent on whether the state‘s discovery policy would be sustained—e.g., at one point he said, “[i]f the Court is going to follow the local [discovery] policy I absolutely do not want a lawyer, will not accept an attorney,“—but this is not the kind of contingency that makes a waiver of the right to counsel involuntary under Faretta. To the contrary, this is the kind of contingency built into the calculus of any criminal defendant who elects to waive a constitutional right. Indeed, it makes no difference that Jones at points suggested he “had no choice” but to proceed pro se and would have preferred the assistance of an attorney. It was unreasonable to interpret these statements to mean that Jones literally did not have a choice—clearly, he did. Jones‘s statements to the court reflect that he had made the strategic decision that in light of his attorney‘s commitments, and the limits on his own availability for meetings (he was incarcerated before trial, after all), it would be to his advantage to forego the assistance of counsel but gain an unlimited amount of time to analyze the discovery materials. To sustain the state courts’ interpretation of Jones‘s decision would frustrate the Supreme Court‘s clearly established holding in Faretta; in other words, the state courts unreasonably applied Faretta. Indeed, as the Court concluded in that case: “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.’ ” Faretta, 422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)).
In sum, the state courts concluded Jones‘s waiver was involuntary solely because there were identifiable—yet purely hypothetical—circumstances under which Jones would have preferred a lawyer. This was an unreasonable application of Faretta. Surely many defendants electing to proceed pro se would reconsider if they were guaranteed unfettered access to an attorney of their choosing or, as in this case, unfettered access to materials they consider important to their cases. Surely many defendants electing to waive their right to a jury trial would reconsider if they were guaranteed a jury of people unlikely to be swayed by the heinousness of the charges, or unlikely to be confused by the complexity of the case. Under Faretta, however, it is not a court‘s obligation to determine whether there exists some ideal set of circumstances under which a defendant would reconsider the decision to represent himself. Instead, the court‘s duty is simpler than that: it is to determine whether, in the case presently before it, however far from ideal the circumstances may be, the defendant‘s decision to proceed pro se is knowing, intelligent, and voluntary. Faretta, 422 U.S. at 835; Zerbst, 304 U.S. at 464-65. The state courts’ only reason for concluding that Jones‘s decision did not meet these criteria was that he said he would have retained his
It must be remembered that Faretta‘s reason for wanting to proceed pro se was that he expected to be assigned an over-worked public defender with little time to devote to his case. The trial court had refused his requests for the appointment of a lawyer who was not a public defender. Faretta, 422 U.S. at 811 n. 5. Even so, said the Supreme Court, Faretta‘s decision to represent himself was knowing, intelligent, and voluntary. Id. at 835. In neither Faretta‘s case nor Jones‘s were there questions of competency, coercion, or sincerity. Each defendant asserted his wish to proceed pro se clearly and repeatedly; each had to contend with a real-world obstacle that frustrated his ability to conduct the preparation he thought was necessary for an effective defense. In Faretta‘s case, the Supreme Court‘s holding was informed by these realities. In Jones‘s case, the state courts became wrapped up in irrelevant hypotheticals, which led them to unreasonably apply Faretta and conclude that Jones‘s election to represent himself was not knowing, intelligent, or voluntary.6 This was a structural error, McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), the remedy for which is a new trial. Accordingly, a conditional writ of habeas corpus shall be granted so that Jones may be re-tried.
V.
The judgment of the district court is reversed and the case is remanded for proceedings consistent with this opinion. Jones shall be released from the state‘s custody unless he is retried within 180 days.
SILER, Circuit Judge, dissenting.
I respectfully dissent, as I believe that the decision of the Michigan Court of Appeals in affirming the conviction was not “a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court.”
If the defendant requests to proceed pro se, the trial court must examine his request on the record and determine his intentions. The court must make the defendant “aware of the dangers and disadvantages of self-representation, so that the record will establish that ... his choice is made with eyes open.” Faretta, 422 U.S. at 835.
The trial court in this case properly conducted a Faretta hearing. After a lengthy discussion with Jones, the court determined that Jones‘s request was neither unequivocal nor voluntary because he would “rather not” represent himself and had “no choice” but to do so. The court found that Jones both wanted to represent himself and be represented by counsel. Because he could not choose both, his request was equivocal. The Michigan Court of Appeals agreed, determining that Jones‘s request was “clearly contingent on how the court ruled with respect to defendant‘s requests that counsel supply him with copies of various documents, and that he be allowed to directly address the court at will.” Because Jones could not directly state that he wanted to represent himself, the state court did not unreasonably apply or reach a conclusion contrary to Faretta.
As the majority reflects, the Michigan courts followed the Michigan Supreme Court‘s cases on self-representation, People v. Adkins, 452 Mich. 702, 551 N.W.2d 108 (1996); and People v. Dennany, 445 Mich. 412, 519 N.W.2d 128 (1994). It is ironic that Jones was one of the appellants in the Dennany case. In his prior case, Jones also asked to discharge his attorney and to proceed pro se. The trial court granted his request and Jones was convicted thereafter. The Michigan Supreme Court ordered a new trial because the trial court erred by failing to advise Jones “of the dangers and disadvantages of self-representation.” Dennany, 519 N.W.2d at 129. Now, in the case at bar, Jones was advised of the dangers and disadvantages of self-representation, and the trial court denied his right to represent himself. In his prior case, Jones successfully obtained a new trial because the trial court let him represent himself. In the case at bar, Jones seeks a new trial on the grounds that the court should have allowed him to represent himself. I believe that Jones is “whipsawing” the courts in raising his right to self-representation.
During the course of the proceedings in the state court, Jones acted in a manner that could be described as obstructionist. He insisted on being allowed to address the court at will, and he interrupted the court and the lawyers during the motion hearings. He twice demanded to be removed from the court room because he disagreed with the court‘s rulings. This constituted serious and obstructionist misconduct that the trial court need not tolerate. The trial court found Jones to be equivocal in his request to represent himself. That is what Faretta requires.
RONALD LEE GILMAN
UNITED STATES CIRCUIT JUDGE