Hillum Sаfat Qital ABDULLAH, also known as Tommie Lee West, Appellee, v. Michael GROOSE, Appellant.
No. 94-1783.
United States Court of Appeals, Eighth Circuit.
Submitted Sept. 14, 1994. Decided Jan. 11, 1995.
Rehearing En Banc Granted; Opinion and Judgment Vacated March 24, 1995.
692 F.2d 692
We affirm the district court.
R. Gregory Bailey, St. Louis, MO (argued), for appellee.
Before McMILLIAN, Circuit Judge, JOHN R. GIBSON, Senior Circuit Judge, and MAGILL, Circuit Judge.
JOHN R. GIBSON, Senior Circuit Judge.
Michael Groose, Superintendent of the State of Missouri‘s Jefferson City Correctional Center, appeals from the district court‘s1 order granting Hillum Safat Qital Abdullah a writ of habeas corpus ordering Abdullah be released unless the State takes steps within ninety days of disposition of this appeal to provide Abdullah a new trial. Abdullah is currently serving a five year sentence for his conviction of unlawful use of a weapon.
Abdullah was indicted and tried under the name Tommie L. West in the Circuit Court for the City of St. Louis for unlawful use of a weapon. He now goes by the name of Hillum Safat Qital Abdullah.2 He was originally represented by a public defender, but before trial he moved the court to permit him to represent himself at trial. Upon inquiry by the trial court, Abdullah stated that he was thirty-one years old, had a ninth grade education and had attended Watterson College, that he was not under the influence of drugs or alcohol, and that he did not suffer from any mental disease. The trial court informed Abdullah that he would be “held to the same rules that any other attorney is in [the] Court.” The prosecutor stated on the record that Abdullah had some familiarity with courtroom procedure, having been convicted several times of carrying concealed weapons. After this colloquy, the court allowed Abdullah to proceed pro se. Later in the same hearing, the prosecutor moved to have Abdullah tried in shackles:
Prosecutor: I think we need some ground rules for his conduct and movement during the course of the trial. As the Court‘s well aware, we attended a sentencing hearing with Mr. West last year, and he did in fact try to escape from the courtroom, and that‘s why he‘s wearing leg irons.
And I consider him to be a very dangerous security risk. He‘s already got a ten-year sentence, and I‘m a little concerned about him wandering around the courtroom giving a closing argument, making a voir dire, approaching a witness to cross-examine the witness considering his propensity for escape. Are you going to keep his legs bound during the course of the trial, or are you going to let him move freely?
The Court: Well, based upon the information that this Court has received, he will have to procеed with this trial with the leg irons as they now are.
In his direct appeal in the state court Abdullah asserted that he had been denied a fair trial because he was shackled during the trial. Since Abdullah had not objected to the shackles at trial, the Missouri Court of Appeals reviewed the claim under
Abdullah then petitioned for a writ of habeas corpus, pursuant to
I.
On appeal Groose argues that the district court‘s holding requires a second warning, and thus amounts to a new rule that cannot be applied retroactively under Teague v. Lane. Under Teague, a federal habeas court may not apply a new rule to invalidate a state conviction unless the rule falls within one of two narrow exceptions to the non-retroactivity principle. 489 U.S. at 311. “[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.” Id. at 301; Caspari v. Bohlen, — U.S. —, 114 S. Ct. 948, 953, 127 L. Ed. 2d 236 (1994). Abdullah‘s conviction became final in 1988.
The finding of a Sixth Amendment violation in this case rests on the authority of Faretta v. California, 422 U.S. 806 (1975), and the line of cases on which it is based. See Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938); Von Moltke v. Gillies, 332 U.S. 708, 722 (1948) (plurality opinion of Black, J.). These, of course, antedate Abdullah‘s conviction. Faretta held that a defendant who wishes to represent himself has a right to do so, but that the defendant “should be made aware of 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 his eyes open.‘” 422 U.S. at 835 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Fifty years before Abdullah‘s casе, the Supreme Court placed on the trial court the duty of ascertaining whether a defendant has made an intelligent and competent waiver of counsel. Johnson, 304 U.S. at 464-65. At the time of Abdullah‘s conviction, Faretta had been interpreted to require the court to “ensure that the waiver is not the result of coercion or mistreatment of the defendant, and . . . that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.” McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.), cert. denied, 474 U.S. 852 (1985) (internal citations omitted).
Considering first the court‘s duty to ascertain whether the defendant appreciates the significance of waiving counsel, and second, thе long-recognized gravity of forcing a defendant to trial in chains, we conclude that the trial court did not live up to its obligation in this case. Abdullah did not know he would be tried in chains at the time he moved to waive counsel. Once the court decided to shackle him, the court made no effort to ascertain whether Abdullah understood the effect shackling would have on his ability to represent himself.
Superintendent Groose argues that there arе no pre-1988 cases saying that the court must discuss shackling in its waiver colloquy. However, it has long been established that “[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case.” Johnson, 304 U.S. at 464. Every case will have its specific facts, but it is the courts’ task to apply the established general rule of Faretta to the infinite array of facts that present themselves. The essence of the district court‘s holding was to require that the general rule of Faretta be applied to the particular facts in this case, including the difficulties that shackling would pose to self-representation. The state trial court did not fulfill its duty to assure that Abdullah was “aware of the dangers and disadvantages of self-representation,” Faretta, 422 U.S. at 835, when it failed to discuss the crucial fact that Abdullah would appear before thе jury in chains, and the particular restrictions and effect on the trial that that fact would have. The shackling was a specific circumstance creating difficulties of self-representation, so as to make particularly appropriate Faretta warnings. We deal only with the case before us, and as we do so, we conclude that Faretta requires that the defendant seeking to represent himself should be informed by the trial judge of the particular complexities and difficulties that the shackling causes. Therefore, Abdullah‘s Sixth Amendment rights under Faretta were violated, and the non-retroactivity principle of Teague v. Lane is irrelevant to this case.
Superintendent Groose argues that the district court‘s holding will require trial courts to give supplementary Faretta warnings every time there is an adverse development that will make self-representation more perilous. That is a false issue in this case because both the motion for self-representation and shackling occurred before trial and in the same heаring.
Superintendent Groose also argues that we affirmed a conviction in United States v. Stewart, 20 F.3d 911 (8th Cir. 1994), where a pro se defendant was tried in shackles without a warning about the effect of shackles on his self-representation. The court in Stewart was unable to conduct a complete Faretta colloquy because the obstreperous defendant interrupted every such attempt. 20 F.3d at 913, 917. The trial court could hardly be held responsible for an incomplete warning in such a case. Moreover, in Stewart, the defendant had reрresented himself in shackles in another case. See Stewart v. Corbin, 850 F.2d 492, 495 (9th Cir. 1988). He therefore had first hand knowledge of what he was getting into.
Groose next argues that the district court erred in holding that Abdullah‘s claims were not barred by the procedural default rule. The Missouri Court of Appeals reviewed Abdullah‘s claim pursuant to
Groose contends that Pollard v. Delo, 28 F.3d 887, 889 (8th Cir.), cert. denied, — U.S. —, 115 S. Ct. 518, 130 L. Ed. 2d 423 (1994), directly contradicts Williams and Bannister. We think not. Pollard does not involve plain error review pursuant to
III.
Finally, Groose argues that we should apply harmless error analysis to the violation of Abdullah‘s right to trial counsel, citing Brecht v. Abrahamson, — U.S. —, 113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993). However, we are persuaded by United States v. Allen, 895 F.2d 1577, 1579-80 (10th Cir. 1990). Allen holds a district court‘s failure to establish that a defendant‘s waiver of trial counsel was voluntary, knowing and intelligent is not subject to harmless error analysis. The Tenth Circuit based its decision on Penson v. Ohio, 488 U.S. 75 (1988), in which the Supreme Court refused to apрly harmless error analysis to a case in which a defendant was left “entirely without the assistance of counsel” on direct appeal. 895 F.2d at 1580 (quoting Penson, 488 U.S. at 88). Obviously, being left without counsel at trial is as serious as lacking counsel on appeal. Id. Denial of trial counsel infects the integrity of the entire trial. See Satterwhite v. Texas, 486 U.S. 249, 256-57 (1988). The weight of authority supports the Allen rule. See United States v. Fant, 890 F.2d 408, 410 (11th Cir. 1989), cert. denied, 494 U.S. 1038 (1990); United States v. Balough, 820 F.2d 1485, 1489-90 (9th Cir. 1987); United States v. Welty, 674 F.2d 185, 194 n.6 (3d Cir. 1982); but see Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir. 1984). See generally James Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure § 27A.3 & n. 18 (1993 Cum.Supp.).
To the extent Abdullah‘s case involves denial of his right to self-representation, it is governed by the Supreme Court‘s reasoning that harmless error cannot apply where a court denies the defendant his right to self-representation. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis.“) See Johnstone v. Kelly, 808 F.2d 214, 218-19 (2d Cir. 1986), cert. denied, 482 U.S. 928 (1987).
IV.
We affirm the grant of the conditional writ of habeas corpus.
MAGILL, Circuit Judge, dissenting.
I respectfully dissent from part I of the majority‘s opinion. I would reverse the district court because I believe its decision announced a new rule in violation of Teague v. Lane, 489 U.S. 288 (1989).
I.
Teague prevents a federal court from granting habeas relief to a prisoner based on a rule announced after his conviction has beсome final. Id. at 310. Since Groose argued that the district court fashioned a new rule, we “must apply Teague before considering the merits of the claim.” Caspari v. Bohlen, — U.S. —, 114 S. Ct. 948, 953, 127 L. Ed. 2d 236 (1994).
We apply a three-step analysis to determine whether Teague precludes the district court‘s decision. First we must determine when Abdullah‘s conviction became final. Then we “must [s]urve[y] the legal landscape” at that time to “determine whether a state court considering [Abdullah‘s] claim at the time his conviction became final would have felt compelled by existing precedent to conclude thаt the rule [he] seeks was required by the Constitution.” Id. (internal quotations omitted) (citation omitted). Finally, if we conclude the district court announced a new rule, we must determine whether one of two narrow exceptions to Teague applies. Id.
The core issue is whether the district court‘s decision announced a new rule. If so, Teague bars it from applying here, as neither of the two narrow exceptions to Teague are applicable. For Teague purposes, “a decision announces a new rule ‘if the result was not dictated by precedent existing at the time the defendant‘s conviction became final.‘” Gilmore v. Taylor, — U.S. —, 113 S. Ct. 2112, 2116, 124 L. Ed. 2d 306 (1993) (citations omitted) (emphasis in original). A good faith extension of existing precedent constitutes a new rule as does a decision that is related to existing precedent. Wickham v. Dowd, 914 F.2d 1111, 1114-15 (8th Cir. 1990), cert. denied, 501 U.S. 1254 (1991). A rule is considered a new rule if reasonable jurists could differ as to whether the rule is compelled by existing precedent. Caspari, — U.S. at —, 114 S. Ct. at 956; Gilmore, — U.S. at —, 113 S. Ct. at 2120 (O‘Connor, J., concurring). The combination of two long-standing lines of precedent to form a third precedent which is related to both is also a new rule that violates Teague. Wickham, 914 F.2d at 1113-14. I believe that the majority overlooks the definition of a new rule when it determines that Teague is not applicable.
The majority determines that the district court‘s rule is not new based upon two long-standing lines of precedent: one deriving from Faretta and its progeny that a defendant‘s waiver of his right to an attorney must be knowing and intelligent, maj. op. at 694-95; and one from Holbrook recognizing the inherently prejudicial nature of requiring a defendant to be shackled during trial, maj. op. at 695. The majority then combines these two long-standing lines of precedent to determine that the district court should have inquired as to “whether Abdullah understood the effect shackling would have on his ability to represent himself.” Maj. op. at 695. This combination of two separate well-established and long-standing precedents to form a new third requirement that is logically related to both lines of precedents is a new rule that is barred by Teague. Wickham, 914 F.2d at 1113-14. I believe that the only way this case could survive Teague is if one of these lines of precedents standing alone dictates the district court‘s decision.
A. Faretta and its Progeny
The majority asserts that Faretta and its progeny compel the district court‘s decision. To determine whether this is so requires a
It is well-settled that a criminal defendant has the constitutional right to represent himself and that in order to waive his right to counsel he must make a knowing and intelligent waiver. Berry v. Lockhart, 873 F.2d 1168, 1170 (8th Cir. 1989). This requires the defendant be “made aware of ‘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 his eyes open.‘” Id. (quoting Faretta v. California, 422 U.S. 806, 835 (1975)). The Supreme Court takes a pragmatic approach to determine whether a waiver is knowingly and intelligently made based upon the particular facts and circumstances surrounding the particular case. Factors to consider in this process include:
the defendant‘s age and education, . . . other background, experience, and conduct. The court must ensure that the waiver is not the result of coercion or mistreatment of the defendant, . . . and must be satisfied that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.
McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir. 1985). In United States v. Yagow, this court cited 1 Benсh Book for United States District Judges § 1.02 (3d ed. 1986) as a model of a Faretta inquiry. 953 F.2d 427, 431 (8th Cir.), cert. denied, — U.S. —, 113 S. Ct. 103, 121 L. Ed. 2d 62 (1992). The Bench Book colloquy only addresses disadvantages to proceeding pro se in general, not disadvantages specific to an individual defendant‘s case.6
Prior to the district court‘s decision, I am aware of no case that requires a trial court to include in its Faretta colloquy a warning of the dangers or disadvantages of proceeding pro se that are specific tо his case.7 The district court in this case is requiring the Faretta inquiry to include warnings about the particular disadvantages in this case (shackling), not the disadvantages of proceeding pro se in general. I believe this is a new rule, because it is not dictated by existing precedent. The rule is related to the
Furthermore, in this case the motion for the defendant to remain in shackles did not occur until immediately after defendant‘s motion to proceed pro se was granted. Consequently, at the time of the initial Faretta colloquy, it is unlikely that the trial court was aware that it would shortly be ordering the defendаnt to remain in shackles during the trial. In essence, the district court is requiring the trial court to supplement its initial Faretta colloquy once it became aware that the defendant would be shackled. So stated, this is clearly a new rule in violation of Teague.
B. Shackles
I agree with the majority‘s analysis of our long-standing recognition that “forcing a defendant to undergo trial in chains is ‘inherently prejudicial,’ . . . and should only be tolerated in cases of dire necessity.” Maj. op. at 695 (citations omitted). However, these precedents do not require any warning of the disadvantages of such shackling be given to the defendant. Accordingly, the long-standing precedent concerning shackling does not dictate the district court‘s rule.
II.
I believe that the district court announced a new rule, which violates Teague. I disagree with the majority‘s conclusion that Teague is not applicable because there was compelling long-standing precedent existing at the time of Abdullah‘s conviction. I believe that the district court ruling takes two long-standing lines of precedents and combines them into a third, albeit related, rule. This is a new rule in violation of Teague. Consequently, Abdullah may not rely on this rule as a basis for habeas relief. For the foregoing reasons, I would reverse the district court‘s grant of the writ of habeas corpus.