Leroy Buhl v. Mr. Cooksey, Warden Attorney General of the State of New Jersey

circumstances. financial position inent or' contributions his charitable

Nor were the level or charac-

community services sacrifice, depriva- personal exacting

ter something of substance

tion of contributions.3 imper- that it was conclude

I therefore Dis- for the under the Guidelines

missible Sentencing from the depart

trict Court

Guidelines.

Leroy BUHL, Appellant, Warden; Attorney COOKSEY,

Mr. of New State

General

Jersey.

No. 98-5342. Appeals, States Court

United

Third Circuit. Feb.

Argued 1, 2000.

Filed Dec. life; Nieb, give your suste- impacts your from According Laurie Coordinator nance, Denver your abundance.” Stewardship Den- the Archdiocese Office A, Post, pg. A-01. ver, Colorado, Section gift October giving means ‘‘a sacrificial Feldman, (Argued),

Steven A. Arza R. Feldman, Feldman, Roslyn, Feldman & NY, Attorneys for Appellant. Marcy Speiser, H. (Argued), Office of Attorney Jersey, General of New Richard Hughes Trenton, NJ, Complex, J. Justice Attorney Appellees. for SLOVITER, Before: SCIRICA and McKEE, Judges. Circuit OPINION OF THE COURT McKEE, Judge. Circuit Leroy Buhl appeals the district court’s denial corpus petition habeas pursuant § filed to 28 U.S.C. His petition originally contained several claims only relief. Buhl exhausted claims, two of only his one of those car, sped away, but he patrol now.1 of the is before us claims two exhausted consider, captured approximately one month la Buhl was claim that we In the one Thereafter, successfully pros ter. he was denied his constitution- that he was argues ecuted in federal court as well as the state during own defense to conduct his al Jersey Pennsylvania courts of New The dis- court. criminal trial state and federal crimes he had the various state that assertion without rejected trict jurisdiction during committed in each that the trial court’s hearing. We hold rampage. unequivocal Buhl’s clear rejection of pro se was of his assertion 20, 1990,2 approximately On December — will vacate the Accordingly, we

improper. in the New three weeks before .trial fur- remand for ruling court’s district Jersey begin state court was to —-Buhl opin- with this consistent procedures ther motion to dismiss counsel filed written ion. In an accom- se. affidavit motion Buhl stated that he

panying that Background I. attorney’s was dissatisfied with his investi- lawyer incompe- and that his gation 16,1988, of New the State On November N.J.Super. tent. See State count twenty-one Jersey charged (1994). The trial 635 A.2d alia, with, kidnaping, inter indictment motion on judge hearing held a on that threats, restraint, pos terroristic criminal 22, hearing, that January During 1991. pur an unlawful weapon of a for session that had re- judge acknowledged he assault, criminal aggravated sexual pose, motion, Buhl ceived the and he reminded assault, assault, and aggravated sexual serious,” and charges that the were “darn weapon by previously of a possession 12, 16. The “overwhelming”. App. arose from person. charges The convicted Buhl, (the judge) that he judge then told during of terror reign a horrific 24 hour motion to dismiss counsel believed Buhl’s living upon hell his which Buhl visited ap- with was motivated dissatisfaction Buhl kid- began terror when victim. The The-judge trial counsel. neverthe- pointed Jersey from a bar New naped a woman asked Buhl he wanted less 6, August early morning in the hours motion, Buhl confirmed that with and his victim, Buhl kidnaping After that 12. Buhl told the court he did. Id. at assaulted, beat, and threatened sexually motions,” he “about twelve wanted he had- ensuing 24 course of the her over the proceed pro pursue if he allowed to was hostage, her Buhl holding While hours. “I understand the explained, se. He also locations in his victim to various also drove me[,] I and feel confident charges against Pennsylvania her own Jersey New and he myself,” I these can handle only was terrorized victim car. Buhl’s represent- that he had informed the court police escape Pennsylvania when able to times.” separate “three ed himself before tempo investigate car to its stopped her 13-14. Id. at then able to rary plate. She was license problem judge responded: The “See car and tell the officers patrol run to the application se got, pro Mr. Buhl is the kidnaped, raped and I’ve that she had been your that what assaulted; [sic] the fact police help. thé is based beg competent have saying you is -that don’t safety victim run to the he saw his When Memorandum, court stat- the district currently In its an inmate at the U.S. 1. Buhl is Haute, Indiana, proceed pro on se serving ed that Buhl moved Penitentiary in Terre 1990; however, Jersey the New separate imprisonment that December sentence of life Division, -Court, to, Superior Appellate noted that appeal. by, this unrelated unaffected Decem- represent on aggre- Buhl moved to himself appeal only to the The instant relates Buhl, N.J.Super. plus ber see State gate imprisonment sentence of life (1994). day The six imposed by the 635 A.2d years that was incarceration analysis. impact our discrepancy has no on Jersey. State Newof Pennsylvania Buhl court in right?” following ... I con- state [A]m “Yes, your Honor.” Id. at 14. conviction there. firmed: that Buhl should not judge The concluded Thereafter, Buhl obtained new counsel se allowed Jersey appealed who Buhl’s New convic- upon his Buhl’s motion was based belief Court, Jersey Superior tion to the New unprepared counsel was defense Division, alia, Appellate alleging, inter incompetent. The stated: trial court that the had denied Buhl’s con- self-representation. stitutional inclination, My and the nature of the Buhl, supra. Appellate See State v. charges the kind of case themselves also rejected Division all of Buhl’s claims and here not to allow dealing we’re affirmed his conviction. The court con- [,] pro Buhl but to Mr. se cluded Buhl’s Sixth Amendment him give put what wants to conduct his own defense had not been lay on the it all out. I put record denied because his to do so was say you [pro can se]. make motions subsequent under mined vacillation. Id. at 24. The then continued the The though court reasoned that even approximately one month (appar- case initially representing insisted on himself at ently request) at defense counsel’s to allow trial, subsequently “expressly agreed” attorney Buhl’s more time to contact addi- him allow “on the During intervening tional witnesses. permitted condition that he [Buhl] be month, file mo- continued to file se motions and supple- advance tions, but he did not file another motion to arguments.” mental 635 A.2d at during conduct trial. his own defense Appellate 571. The Division concluded that Buhl hybrid entitled to this When court for trial on Febru- resumed representation, and his assertion 25, 1991, ary attorney recounted his trial court had improperly denied his re- attempts to track down various defense quest se was therefore again, witnesses. Id. at 58-62. Once without merit. The court relied complained about a lack of communication 168, Wiggins, McKaskle v. and, jury with his counsel before selection 944, (1984), S.Ct. 79 L.Edüd 122 in con- began, he renewed his motion to cluding that subsequent “[Buhl’s] com- pro se. denied judge again The his mo- force,” plaints much of their [lost] because tion, began jury and the court selection. the trial accepted hybrid court’s offer of completion jury at the of selec- Buhl, representation. 635 A.2d at 571- tion, Buhl in participate refused to thought 572. The court also re- proceedings and he from the was escorted quest immediately prior that was made courtroom. Buhl’s trial lasted from Feb- 25, impaneling jury February 1991, on 25, ruary 6, until March 1991. The untimely was because the would jury remaining convicted Buhl on all of the have had to continue the trial in order to indictment,3 eighteen counts of the and he allow to conduct his own defense. subsequently aggre- sentenced to Thus, Division, Appellate reasoned the gate thirty term of imprisonment plus life “legitimate prosecutor’s demand for stabil- years forty-year parole ineligibility. with a ity scheduling of properly cases was The sentence was to a consecutive federal priority.” accorded Id. at sentence imprisonment kidnap- of life ing court,4 has affirmed this Jersey Supreme been The New Court refused and a twenty forty years sentence of appeal to hear Buhl’s from the decision of Division, imposed incarceration that had been Appellate and Buhl thereafter (3d during 3. Two counts were dismissed the trial 4. See United States v. 899 F.2d 1219 jurisdictional grounds; on another count was Cir.1990) decision). (unpublished table severed. review of the district court’s § 2254 2253. Our under 28 U.S.C. petition filed for relief. The dis- grounds v. alleging legal plenary. Bey four conclusions is See because petition (3d trict court dismissed Cir.1997); Morton, 524, 528 claims. Howev- unexhausted it contained (3d Vaughn, Walker er, probable of a certificate granted we Cir.1995). pre-AEDPA Under the stan- that the the case so cause5 and remanded dard, findings court’s factual are the state the two ex- could consider court district unless, alia, correct inter presumed to be claims. hausted “fairly findings are not the state court’s remand, court considered the district On Pemberthy v. by the record.” supported claims,6 and rejected Buhl’s exhausted and (3d Cir.1994) 857, 864 Beyer, 19 F.3d The district petition. denied 2254(d)(8)). § (quoting 28 U.S.C. Appellate Division with the agreed however, are legal findings, state court’s claim had actual- Amendment Buhl’s Sixth to deference.7 not entitled incompetent coun- an assertion of ly been sel, Buhl had vacillated between and that that the trial court Buhl contends self-representation. assigned counsel with the dictates of Faret comply failed to found that at 12. The court Op. Dist. Ct. California, U.S. ta hybrid representation concession to Buhl’s (1975), that this 45 L.Ed.2d any further negated the need self-representation un violated se. his written motion into concluded, the trial Amendment. The Sixth Id. The district court der the Sixth February properly had denied self-representation Amendment on it was made rights be other constitutional differs from really complaint it was the eve exercised without the it can not be cause stewardship, trial counsel’s about fundamen concomitant waiver another have further would granting guaranteed under tal that is also Id. at 12-13. delayed proceedings. Amendment; right to counsel.8 Sixth peti- then denied Buhl’s The district court that a criminal It is axiomatic merits, later denied an on the tion right must be waiver of a constitutional probable for a certificate application intelligent. voluntary, knowing appeal- a certificate of granted cause. We Therefore, right óf self- the constitutional followed. Buhl has ability appeal and this is condi in a criminal case representation claim only the Sixth Amendment raised in knowing and voluntary, a tioned and that is the briefing argument, and in repre right of the telligent waiver only claim we address. will Faretta, 422 See U.S. by counsel. sented II. Discussion Arizona, 2525; 835, Edwards v. 95 at S.Ct. 1880, 477, 482, 68 101 S.Ct. 451 U.S. jurisdiction to review We have (1981). 1291, right Waiver §§ L.Ed.2d 378 28 appeal under U.S.C. ("AEDPA”) apply to Penalty do not Death Act the enact- petition was filed before 5. Buhl's petition Death and Effective ment of the Antiterrorism Penalty case Buhl filed this thus, ("AEDPA”), and we of 1996 Act was enacted. corpus before AEDPA habeas terminology pre-AEDPA of "certificate use the 320, 326, 117 Murphy, 521 U.S. Lindh v. See probable cause.” (1997); 2059, Bey 481 v. 138 L.Ed.2d S.Ct. Cir.1997). 524, (3d Morton, 528 F.3d 124 Buhl’s claim district court considered 6. The violated the Interstate that the district court Act, recognized right generally app. 2 to counsel is Agreement 18 U.S.C. 8.The on Detainers 2, improp- right to right § claim that the trial court vis a vis the paramount to be the Fair, se in erly See, denied his motion e.g., v. self-representation. Tuitt Amendment. of the Sixth denied, violation 166, Cir.), (1st 484 cert. F.2d 177 822 333, 945, 360 L.Ed.2d S.Ct. 98 U.S. 108 2254(d) § con- to 28 U.S.C. 7. The revisions (1987). and Effective Antiterrorism tained in the 790 trial, ‘upon in each case the before the date of ... Faretta re- “depends circumstances sur quested permitted represent facts and that he be

particular case, including 807, the rounding that back himself.” Id. at 95 S.Ct. 2525. Faret- and conduct of the ground, experience, represented by ta “did not want to be the ” Edwards, 482, 451 101 accused.’ U.S. public defender because [he] believed Zerbst, 304 (quoting S.Ct. 1880 Johnson very that office was loaded down with ... 458, 464, 1019, 58 S.Ct. 82 L.Ed. 1461 U.S. 807-08, heavy a case load.” Id. at 95 S.Ct. (1938)); Salemo, United States v. judge initially 2525. The trial allowed (3d Cir.1995). 214, judge 218 The trial pro Faretta to se but warned that thorough inquiry and ... must “make ruling appeared would be reversed it full steps necessary take all to insure the adequately that Faretta could not defend protection right.” constitutional est this against charges. “Several weeks Gillies, (quoting Id. at 219 Von Moltke thereafter, prior judge but still 708, 722, 316, 332 U.S. 68 92 L.Ed. S.Ct. sponte hearing inquire sua held a into (1948) J., (Black, plurality opinion)). 309 ability Faretta’s to conduct his own de- fense, questioned specifically him indulge every rea Courts must ...” knowledge about of certain rules presumption against sonable a waiver of familiarity prac- of law and his with court Johnson, counsel. See procedure. tice and Id. at Salerno, 1019; S.Ct. 61 F.3d at 218. In 2525. When Faretta was unable to answer presumption, order to overcome this satisfaction, judge’s to the trial defense, conduct own defendant his/her judge prior ruling, reversed his denied clearly unequivocally pro must ask to Faretta’s to waive counsel and Faretta, ceed se. See U.S. at defense, conduct his own reappointed (noting defendant public represent defender to him. Id. had properly repre asserted his judge rejected The also Faretta’s “clearly sent himself because he and un to file certain se motions and his re- equivocally declared to the trial quest to act as along ap- co-counsel he wanted to himself and did not pointed counsel. Id. counsel”); want Dugger, Stano v. (11th Cir.1991) (en banc) (not represented by Faretta went to trial that, ing while counsel “at public defender and was convicted. He automatically taches and must be waived appealed arguing that he was entitled to a lost,” affirmatively to be to self- new trial because the trial judge had de- representation does not “attach unless and nied his Sixth Amendment of self- asserted”); until it is Brown v. Wain representation by forcing him to (5th Cir.1982) (en wright, 665 F.2d represented by public to trial defender. banc) (same).9 Supreme agreed. Court After care- Faretta, appointed public fully reviewing underpin- the historical counsel, defender to represent nings right the defendant dur- of the the Court ing his criminal trial. “[w]ell concluded: See, Tuitt, (defendant e.g., 822 F.2d at unequivocally 177 se is waived if not and asserted); may required timely who wants to Furlong, be Munkus v. 170 980, give (10th Cir.1999) (clear unequivocal right an waiver of F.3d 983-984 and counsel); unequivocal United rel. repre- States ex. Maldonado v. declaration of intention to Denno, 12, (2d Cir.1965) (in requirements 348 F.2d 15-16 sent self is first of several defen- right, right); order to invoke must make defendant dant must meet in order to invoke denied, unequivocal 1358, request), Wainwright, cert. Dorman 1366 1007, 1950, (1966); (11th Cir.1986) (“petitioner 86 S.Ct. L.Ed.2d 16 1020 must do no more 551, (7th Oakey, request, United States v. F.2d orally 853 553 than state his either or in writ- Cir.1988) (request properly part ing, unambiguously denied in be to the court so that no Ylst, ambiguous); person cause it was say Jackson v. 921 reasonable can that the 882, (9th Cir.1990) made”). (right F.2d was not Therefore, education. high had a school of the Sixth spirit and language counsel, “literate, competent, and under- contemplate that he was

Amendment guaranteed standing, that] tools Court concluded [the the other defense like Amendment, an aid to a voluntarily exercising shall be his informed by organ an Id. The Court also concluded willing defendant —not free will.” unwilling an between interposed court had erred in condition- State that the trial him- to defend right and his right defendant se on ing Faretta’s upon thrust counsel personally. To legal knowledge,” self rather “his technical wish, accused, against his considered focusing knowing on “his exercise of than of the Amend- logic violates the thus at to defend himself.” Id. 835- right case, not an a counsel is In such ment. 836, Accordingly, the Court assistant, master; right and the but a and remanded vacated Faretta’s conviction per- of the stripped is make a defense for a new trial. Id. which the Amend- character sonal Thus, once a defendant waives ment insists. by counsel and asserts the representation omitted). (footnote

Id. self-representation right constitutional may not that a state concluded The Court trial, the trial court must at a criminal represent- to be a criminal defendant force “fully inform him some manner properly lawyer a the defendant ed him, against charges nature of the self-representation. asserts his/her dangers of self- penalties, and the possible held 95 S.Ct. 2525. The Court Id. v. Her representation.” United States repre- allowed to a defendant must be Cir.2000) (9th nandez, proper a is when sent him/herself omitted). (citations This ob and footnotes waived, though even made and counsel Constitution, ligation arises under nearly always be a defendant will such state, federal applies it as well as attorney. The issue is with an off better judges. skill, nor the likelihood not the defendant’s law, we As a matter of constitutional Rather, defense. mounting a successful unambiguous a clear and imposed have knowing- is whether defendant the issue judge ... upon a trial obligation voluntarily waived ly, intelligently, [wjhether Judge District it be a U.S. counsel, by represented Judge in a federal Magistrate a U.S. self-rep- clearly asserting his/her in a judge state prosecution or state Amendment. under the Sixth resentation judge must the trial proceeding, criminal not himself Although a defendant need accused to colloquy with the conduct lawyer of a experience the skill and have only is not mine that the waiver deter competently intelligently in order intelli- knowing and voluntary, but also he should be self-representation, choose gent. dangers and disad- aware of the made (3d Frank, so that self-representation, Henderson v. vantages Cir.1998). that he knows the record will establish choice is made doing and his what he must first determine Accordingly, we eyes open. of his pm-ported assertion whether

Id. at 95 S.Ct. 2525. triggered own defense to conduct his did, If it we inquiry under Faretta. unequivocally” “clearly had Faretta the court’s whether to must then determine that he wished informed the must con- adequate. We also was and that he did not wish pro se proceed effect, if the trial court’s any, sider what public defender represented hybrid representation 885, a kind of offer of trial. Id. at weeks before under relief Buhl’s claim for represented upon had previously Faretta had 2525. im- decide what Finally, § we must and he prosecution, in a criminal himself 792 (3d 1092,

pact, any, participate Goldberg, Buhl’s refusal 1099 Cir. 1995)), denied, 868, upon rights the trial had is assert- cert. 528 120 U.S. (1999). ing. 167, Here, 145 L.Ed.2d 141 did more than that. Adequately A. Assert Did His undisputed It that Buhl filed v/ritten Right Self-Representation? proceed pro motion to se on December above, a As noted 1990, and it is clear the trial court request self-representation in a crimi asserting understood that Buhl was this clearly nal trial must be made and un right hearing because the court held a on equivocally. requirement prevents This January that motion a month later on making defendants from casual and inef However, hearing, at that the court se, requests proceed pro fective filing focused on Buhl’s motivation for attempting upset then “adverse ver motion, inquiring rather than into whether they dicts after trials at which had been request knowingly, voluntarily, was Maldonado, represented by counsel.” and intelligently made. That focus caused keeps F.2d at 16. It also defendants from conclude that Buhl’s se, proceeding pro challenging any then was motivated his dissatisfaction with subsequent by alleging conviction a denial appointed attorney. The following ex- right Requiring of the to counsel. a clear change January hearing at the is illustra- unequivocal assertion also tive: protects inadvertently from defendants “ waiving upon counsel based ‘occasional Okay, THE thing COURT: the first I musings self-represen on the benefits of want to take care of is Mr. Buhl’s mo- ” tation,’ Frazier-El, United States v. tion. Mr. Buhl has got a motion to (4th Cir.2000) F.3d (quoting Buhl, up se. Mr. stand Arlt, United States please, you’ve sir. Mr. got a mo- (9th Cir.1994)). tion to se. got I’ve a lot of difficulty A with the I defendant need not “recite motion. mean I some (sic) anything bought talismanic formula don’t know hoping open eyes and ears of the court case. All I know is request” to his there are darn (sic) rights charges invoke Sixth Amendment serious your pro- here and his/her Dorman, under Faretta. ceeding pro great F.2d at 1366. se is of concern to me Indeed, requirement such a would contra and I read you the motion that made. reason, dict the it was designed protect as apparently, you’re The a defendant’s Sixth Amendment your satisfied attorney.10 you with Do self-representation would then be condi your want to with motion? tioned knowledge pre his/her Yes, your BUHL: If I may, Honor. I language cise needed to it. assert Rather [defense tried to call counsel’s] office. defendant, placing than such a burden on Of the times I’ve succeeded talking affirmative, simply requires law approximately [him] one time on the unequivocal, request, require and does not telephone for five minutes. He visited to be written or the form of hour, briefly me for about an a formal motion filed court. See talked— Leggett, United States v. (3d Cir.1998) (citing United States THE COURT: When was that? judge’s slating 10. "problem" dissent minimizes state- that he had a with the by asserting request. ment “problem” solely that it was "no more than a That arose from repeatedly judge’s confirmation of what Buhl told the belief that Buhl's assertion of his court, self-representation ...” Dissent at 807. it is constitutional was appropriate way clear that it was more than an "affirmation” not an to address Buhl’s request. clearly of Buhl’s The trial dissatisfaction with defense counsel. court A.2d at 570. The district than to at me rather talked He BUHL: That stated: more, agreed. far as this self as Further me.... twelve got I’ve about

representation, After asserted his desire petitioner proceed I’m allowed to that if motions se, judge began trial pro with the se, these motions I file pro will inquiry to ascertain whether required deci- for the court’s Court Clerk intelligent- knowingly the defendant to be made. sion to coun- ly wished to waive his a dozen there are about say, I Like quickly apparent It became sel.... [my attor- to contact I tried motions. actually claiming incom- petitioner I’m not letters. and I’ve written ney] The [App. 14.] of counsel. at petency just my got I any place fast. getting petitioner clarify asked judge even morning. (sic) material this legal record, “Essentially, your what counsel, am I saying incompetency is at 12-13. App. responded, then right?” Petitioner that he had the court Buhl also told (Id.) “Yes, petitioner your honor.” Thus prior three occa- himself on represented own claim as one his characterized sions, “I understand proclaimed: rather than as incompetency me[,] I feel confident against charges represent attempt himself. myself.” Id. at 13- I can handle these added). Op. (emphasis at 12. Dist. Ct. request, and denied his 14. The court only the district court refer- adjourned until Febru- eventually case was exchange between the part enced date, 25th, before ary 1991. On Buhl. of that trial court and The context jury, reiter- began selecting Buhl did exchange although confirms that his own defense. to conduct ated his desire counsel was that he believed his agree versus “Under State He stated: Califor- not alter the incompetent, that belief did myself.” nia, like to I would attempting rep- to waive fact that he was is application ‘Tour judge replied: counsel, pro se. resentation Id. at 67. again denied.” counsel. requesting not substitute He was record, “no reasonable On this above, the trial court stated: As noted say request [for that the self- person can Buhl, is got, I’ve Mr. problem See the Dorman, made.” was not representation] upon is based pro application se argues that The State 798 F.2d at 1366. (sic) saying is that your what fact that by asking proceed pro se Buhl vacillated counsel.... you competent don’t have judge’s con with the agreeing while upon application se is based Your se was proceed pro clusion that his wish application se is fact — ... The with couns upon his dissatisfaction based (sic) say- your the fact that based conviction, the affirming el.11 counsel, my opinion, that I have ing Jersey Division noted that Appellate New interest, not my best working not the defen inquiry with “[t]hrough specific to do thing supposed that he is doing the dant, almost at the apparent it became Essen- him to do for me. that I want principal complaint per outset (sic) saying incompe- tially, what your attorney’s alleged incom tained to his counsel, right? I tency am expressed repeatedly petence. Defendant confirmed the Although App. that his case was mounting frustration “[y]es, answering: court’s assessment required.” attention it being given request.” Id. at 808. Howev- representation dissenting colleague argues: "The rec- 11. Our clearly er, or un- Buhl did not from Buhl’s subse- ord demonstrates the issues that arise counsel and equivocally waive his issue of distinct from the quent conduct are self-representation,” dis- invoke his clearly unequivocally asserted whether he subsequent conduct because his sent place. in the first right to of his self- tantamount to a withdrawal "was Honor,” counsel, representation by potential that not alter the trial your did obligation appropri- to conduct an advantage lawyer’s training court’s of a and ex- waiver of purported realized, ate into Buhl’s all, perience only can be if at counsel, proceed pro to se. request and his right to imperfectly.... defend is waiving Id. Buhl’s motivation for defendant, personal. The and not his sug- was not the issue. Common sense State, lawyer per- will bear the (and confirms) gests experience that near- consequences a sonal of conviction. It is ly every proceed pro to se will request be defendant, therefore, who must be a dissatisfaction based personally free to decide whether in his It is the rare defendant who with counsel. particular case counsel is to his advan- pro though se even proceed will ask to tage. with thoroughly delighted is coun- he/she Id. at 95 S.Ct. 2525. ability, and representation, prepara- sel’s Therefore, tion. it should come as no sur- Buhl properly Once asserted his to prise by that Buhl’s motivated request was proceed pro obligat- se the trial court was with defense counsel. his dissatisfaction to appropriate inquiry ed undertake an However, a defendant’s constitutional though request under Faretta even Buhl’s automatically self-representation apparently upon nothing rested other than negated by asserting motivation for his/her dissatisfaction defense counsel. it.12 Moreover, duty mitigated by that was not fact, it the Supreme is clear from the court’s quali- laudable concern over the that opinion Court’s Faretta was motivated ty of the defense Buhl would have by displeasure with defense counsel. proceeded waived counsel and to nor motivations, complaint Buhl’s and his that charges. seriousness of the “[Al- attorney spent enough had not time though may conduct his own defense preparing the case were the same as Far- ultimately detriment, to his own his choice explained request etta’s. Faretta to respect must be honored out of that proceed pro by declaring that “he did the individual which is the lifeblood of the represented by public not want (internal omitted). law.” quotations Id. defender because he believed that that of- ‘very fice was loaded down with ... a B. Buhl’s Was Motion to Proceed ” load,’ case heavy U.S. at Pro Se Timely? 2525, and counsel would therefore not have The district court concluded time to properly prepare a defense. The February request 25th Court concluded that Faretta’s concern pro untimely “£j]ury se was selec quality representa- about the of counsel’s begin day, tion was set to resolving grant tion was not relevant to the is- by pro- ing point sues raised Faretta’s the motion at that would have ceed se. The Court stated: Op. necessitated continuance.” Dist. Ct. Appellate at 13. The Division had con It is undeniable that in most criminal abundantly plain cluded: “It is prosecutions could better de- defendants guidance fend with counsel’s than required would have been their own unskilled But period efforts. where continue the trial for substantial the defendant voluntarily accept will not of time had he acceded [Buhl’s Febru- Faretta, disagrees nearly 12. appears The dissent all re- se under even where it quests delay attempting se are motivated that the defendant is quite proceedings. Welty, dissatisfaction with defense See United States v. (3rd Cir.1982) ("even correctly requests may notes: "some be mere- well- ly attempts delay suspicions delay trial.” Dissent at n. founded of intentional However, below, manipulative provide as we note we have ruled tactics can no substitute duty that the trial inquiries necessary protect court has a to make an defen- appropriate inquiry rights.”). into the dant’s constitutional already Faretta violation had occurred.13 A.2d ary demand.” 25th] only timing clearly already Buhl had asserted his must consider factor that a court one proceed pro timely se manner. See proceed pro se. upon a motion to ruling (2d Bartlett, 95, 44 99 Williams v. F.3d found that re we have even Accordingly, Cir.1994) (right unqualified request is trial” were on the “eve of quests made trial); Chapman made before start of v. Virgin the Is valid. See Government of (5th States, 886, United 894 Cir. (3d Cir.1991) James, 934 F.2d 468 lands v. 1977) (motion timely jury if made before lawyer (request to dismiss Lorick, impaneled); United States v. 753 day of jury on the made before selection se (4th Cir.) 1295, (request F.2d must be 1298 valid); Virgin the Is trial Government of trial), denied, cert. 471 asserted before (3d Cir.1995) Charles, 72 401 F.3d lands 1107, 2342, 85 L.Ed.2d 857 U.S. began). trial day made the before (request (1985); 782, Spalding, Fritz v. that Buhl’s second re argues The dissent Cir.1982) (9th (request made before after untimely it “came was because quest timely); jury impanelment is Horton one trial already granted had been [Buhl] (11th Cir.1990) 714, Dugger, allow him to continue continuance to (request untimely meaningful because trial [Granting Buhl’s for trial.... prepare jury proceedings place had taken since morning of trial request on the second selected); also v. Red had been see Pitts unduly delayed the trial.” Dis would have (D.Del. man, 907, F.Supp. 920-921 However, 809, n. 4. the dissent’s at sent 1991) J.) (Roth, day on third (request original fact that Buhl position ignores the 1990; 20, meaningful trial not made “before trial his motion on December ly filed untimely), trial was sched weeks before his several had and therefore proceedings begun” trial court held a hear begin. (3d uled to Cir.), 970 F.2d 899 cert. aff 'd. a month later on Janu ing on that motion 611, denied, trial was then ary and Buhl’s (1992). L.Ed.2d 545 At following day. begin scheduled to is concerned that the record The dissent hearing during January 22nd no time in- request was “strongly suggests Buhl’s attempt appro even did the delay.” at merely tended Dissent Rather, under Faretta. priate inquiry However, support n. 4. the record does not so attorney requested continuance Buhl’s counsel) (defense ad judge certainly could better The trial that he that conclusion. potential'wit concern, Buhl’s concerns about dress no such nor did attrib- voiced trial was then rescheduled to nesses. The to Buhl. The court any ute such motivation date, February 1991. On that trial in length about the of the inquire did proceed pro motion to orally renewed his request, addressing original pro jury began. The re se before selection that Buhl suggested but the court never denied, jury summarily se quest was delay disrupt attempting began. App. lection suggest nor did it ever proceedings, negat- timing request somehow Therefore, request second fact, under Faretta. obligations ed its (which really nothing more than a reas object, or not even motion) prosecution did irrel prior sertion of the written its any delay prejudice would claim to our timeliness because evant se, subsequent hybrid correctly quite states that 13. The dissent required and un- "Buhl was to make a clear representation that he was afforded after the Dis- equivocal request to se.” violation, erroneously concludes Faretta con- at 808. the dissent then sent flates the request and un- “was not clear that Buhl’s obviously unequivocal clear and accepted willing equivocal, because written motion Buhl made in his at 808. hybrid representation....” Dissent asserting with his motivations Rather, during January hearing, at defense counsel’s so that coun- case. try following inquiry: sel could to locate witnesses. Id. made many ... wit- THE [H]ow COURT: argues that the “late The State got? has the State nesses request” of Buhl’s “second under ness” are 22 on the witness There STATE: mines the constitutional it is based list, Judge. it would have de granting you’re talking THE So about COURT: layed proceedings. The State reminds long a trial? how already granted us that the trial court had a continuance when Buhl renewed his re Two STATE: weeks. on “the quest to himself eve of know, You and the THE COURT: trial.” The State claims that since the just charges overwhelming here are to judge for one had continued the your I what background me. don’t care month at request, defense counsel’s things, I’ve heard all kinds of I is. during could have renewed his motion the I’m really don’t care. concerned about January month between the 22nd and the charges. this trial and these are serious February hearings 25th when filed oth that got many BUHL: I’ve at least wit- However, er to do motions. failure so I to ... the nesses. sent witness list imposes irrelevant law is because the no Public Defender’s office. November obligation precedent such as condition to 13th, I it ... and I have got sent not preserving one’s se. any response. say, got Like I I’ve pre- Dugger, Orazio v. (sic) I think trial motions. these thinks (11th Cir.1989) (defendant did not need to Certainly should if I’m be heard.... not “continually request renew his prepare present pretrial allowed to conclusively se after it had been den motions, things these can never de- ied.”).15 cided. App. at 16. The record does reflect Moreover, although we note that judge understandably was anxious to any dilatory the record does not establish begin suggesting the trial. that counsel Buhl, part motives on the we do not defense, would conduct the that Buhl but suggest that a finding such motives would be allowed to file whatever motions would negate duty inquire the court’s he wanted the court stated: earlier, under Faretta. As we noted in concessions, I will make whatever I will Welty, United States v. do whatever I have to do to make sure (3d Cir.1982), required such an is you get things those on the record. even when trial judge suspects that the only things, There’s two that I am not defendant “attempting disrupt (sic) trial, stoping going I am justice by manipulative administration of okay? my with the And for, of, requests and dismissals counsel.” se, other concern appearing pro (“While understand, See id. at we can my inclination you is not to allow perhaps sympathize, even else, appear pro se. But I anything am exasperation frustration and of the district it receptive putting any on the record judge, suspicions even well-founded it, way you got want to do it’s but to be delay manipulative of intentional tac right way.14 done provide inqui tics can for the no substitute Moreover, Id. at 18. did contin- necessary protect ries a defendant’s ue the trial for approximately rights.”). one month constitutional "hybrid” proce- Ironically, We discuss whether this had Buhl not reiterated his re- quest immediately jury before any way compromised selection dure in certainly argue State would most that he self-representation below. by failing waived his written motion to reiter- request prior jury ate the selection. however, suggest, This is not to broadly. ed too of self-repre- request proceed pro may never be sentation cannot be insisted in a denied when it unjustifiable results manner that will obstruct orderly dis- interruption of court proceedings. position See of criminal cases. A defendant Fritz, 784; Horton, 682 F.2d at 895 F.2d desiring to exercise the right must do so 2; Walker, at 717 n. United States 142 with reasonable diligence.” (2d Cir.) (defendant’s rea A.2d at 571. Accordingly, the Appellate sons for self-representation insufficient Division concluded that Buhl’s February improper where intent is to 25 request secure was untimely even though it delay and obstruct orderly course was before jury made impaneled. justice) denied, cert. 119 The court concluded that prosecu- “[t]he (1998); 142 L.Ed.2d 181 cf. legitimate tor’s demand for stability (no Chapman, 553 F.2d at indication scheduling properly cases was accorded was designed id., to priority,” and the court agreed. district delay achieve tactical advantage, and that consideration is sup- honored). should have been A ported this record. As noted earlier. may that a conclude defendant who Buhl made his request inwell advance of nothing intends more than disruption Moreover, and trial. the prosecutor never delay is not actually tendering knowing, a voiced this concern. voluntary intelligent counsel, and waiver of We agree that “right the of and has not unequivocally asserted the self-representation is not a license to dis constitutional to conduct own his/her rupt the calendar, criminal or a trial in defense. While this may determination progress,” 635 A.2d at 571 (citing present difficulties, well it is the kind of Mayberry v. Pennsylvania, 455, inquiry district routinely courts make. 468, 499, (1971) 91 S.Ct. 27 L.Ed.2d 532 Welty, See 674 at 191 (“conducting F.2d an J., (Burger, concurring)), simply but that is inquiry counsel, into [presents] waiver of not the here. issue We previously have the district court ... with a difficult task. acknowledged importance the of the effi Particularly ..._ defendant, when the as is cient justice administration of noting “that here, [the ... defendant] is apparently there are countervailing governmental in street-wise and experienced litiga in the terests” that should be considered when a process....

tion But the making of such defendant asserts a “last-minute request determinations inquiries is not unusual for of counsel substitution and a continu a district for court. Determinations of ance,” Goldberg, United States v. 67 F.3d waiver, voluntariness, effective the (3d 1092, Cir.1995). However, 1098 where like, “ are routinely made in various con fundamental rights stake, are at ‘a rigid ”). However, .... texts the court can not insistence on expedition in the face of a properly make a such determination with justifiable request delay can amount to out first conducting adequate inquiry a constitutional violation.’” Id. (quoting under Faretta. Rankin, United 956, States v. 779 F.2d 960 Here, Appellate (3d the Cir.1986)). Division acknowl- The trial not in prog edged that “generally [ ] a to ress when Buhl attempted to waive counsel proceed pro se made a jury before is defense, and conduct his own or when he sworn should ordinarily honored,” be subsequently but renewed that prior effort that proposition stated “this has been jury stat- selection.16 Accordingly, we hold that commenced, Stevens, 16. After a trial has (2d Cir.) the of States v. 66-67 curtailed, self-representation Maldonado, is (quoting 15) and "the 348 cert. judge considering denied, ‘weigh the motion must U.S. prejudice legitimate to the (1996); interests L.Ed.2d 181 see also United States against Cocivera, defendant’ ‘potential disruption (3d Cir.1996) " proceedings already progress.’ in (noting United has discretion to allow existing continuing with choice between timely request made se.” Id. pro to trial proceeding or himself. request substitute Here, Buhl did Inquiry. Faretta Trial Court’s C. Rather, the outset from counsel. no with to trial proceed only sought at that a defendant held Faretta prong the first Accordingly, counsel. at trial “should tempting focus here. not our inquiry is Welty and disad dangers aware of made in James, even noted in we so self-representation, vantages of only asks to a defendant a case where knows what establish will record some se, must make the court made with his choice is doing he is reasons a defendant’s about inquiry open.” U.S. eyes James, 471. It F.2d at request. See Welty.17 requirement this amplified We James, that our discussion clear from is dissatisfac expressed There, a defendant is motives into offered a and was tion with helps it appropriate necessary and attorney who proceeding choice purported if the determine trial court pro se. proceeding or appointed, had been knowing voluntary, of counsel waiver his attor to dismiss elected The defendant allows example, it For intelligent. surprisingly, se. Not ney truly a defendant to determine appealed He thereafter convicted. he was self-representation, asserting purported that the arguing his conviction Id. counsel. seeking alternative merely Amendment of his Sixth waiver in- (“We district ... that the court’s find and or agreed, We was invalid. counsel the rea- determine quiry was sufficient so, doing we noted In a new trial. dered and for James dissatisfaction sons two-prong a conduct trial courts must did for substitution of good cause' new coun seeks when a defendant inquiry in exist”). court assists the It also not Id. 187. The of trial.” the eve sel “on merely an if the determining reasons for the must first court determine proceed- the delay derail attempt and with counsel dissatisfaction the defendant’s (no attempt genuine to a opposed ings, as cause” “good if there is in to decide order ill-advised) one’s to conduct matter how delay proceed the and to dismiss counsel elaborated Welty we own defense. should exists counsel good If ings. cause court inquiry the trial the nature of may necessi it though even be dismissed a defendant waives when conduct must trial. Id. continuing tate asks to counsel and him/herself. cause does good the court concludes judge must: that the trial We left with a stated exist, is then “the defendant 403-04, 387, Williams, S.Ct. 97 430 v. U.S. begun). er trial has deny a after (1977)). 1232, 424 L.Ed.2d 51 recently ''[e]ven noted Court Supreme level, ], government’s interest in trial [ as to the Appeals differ Courts of Circuit efficiency of integrity ensuring and required. See inquiry that is extent of outweighs inter- the defendant’s 980, at times States, 108 484 U.S. v. United McDowell v. lawyer.” acting J., own as his Martinez est in (1987) (White, 478, 492 98 L.Ed.2d S.Ct. Appellate California, Fourth Appeal certiorari). Court We en dissenting from denial 684, 691, District, 152, 145 120 S.Ct. 528 U.S. inquiry, as do sever formalized dorse a more (2000). 597 L.Ed.2d appeals. United See circuit courts al other 1148, (5th 1152 Chaney, v. States 1981); Ed v. United States B Dec. ap- Cir. on direct Unit Although Welty was decided Cir.1983); 822, (11th wards, court, 824 F.2d 716 "[t]he in a district peal of a conviction 933, Waters, 944 v. United States (6th determining whether de- standard same Cir.1998); Bailey, 675 States United applies right to waived his fendant denied, (D.C.Cir.), 1292, cert. 1300-1301 F.2d corpus state review court habeas federal 104 74 L.Ed.2d Cuyler, 459 U.S. Piankhy proceedings.” (1982). Cir.1983) (3d (citing Brew- n. 3 particular pains [T]ake in discharging Welty, (internal 674 F.2d at 188-9 citations ... inquiries these concerning omitted). ... waiv- quotations Salerno, See also er of counsel. Perfunctory questioning F.3d at 220. is not sufficient. This is even true when We also concluded that the tri the trial judge strongly suspects that the al court must satisfy itself that the defen requests disingenuous are dant significance understands the and ef designed solely to manipulate the fect of purported his/her waiver and not

judicial process delay and to the trial. merely accept the defendant’s statement to Although such by tactics an accused can- that effect. “The mere fact that an ac succeed, not be allowed to at the same (the may court) cused tell that he is in time, a trial permitted cannot be to go formed of to counsel and desires forward when a defendant fully does not to waive this does not automatically appreciate impact of his actions on judge’s end the responsibility.” Welty, 674 rights. fundamental F.2d at 189 (quoting Gillies, Von Moltke v. 708, 724, 332 U.S. Id. We amplified then L.Ed. substance of the (1948) (Black, J. plurality required opinion)). for valid waiver of coun- “This protecting duty imposes sel. We stated: serious and weighty responsibility upon the trial In order to ensure that a defendant judge of determining whether there is an truly appreciates the dangers dis- intelligent competent waiver advantages of self-representation, accused. While an accused may waive the district court should him advise in un- counsel, whether there is a proper equivocal terms both of the technical waiver should clearly determined problems he may encounter acting as ” court,.... Zerbst, Johnson v. attorney own and of the risks he 458, 465, 58 SiCt. 82 L.Ed. 1461 takes if his defense efforts are unsuc- (1938). The trial court’s determination cessful. The district should that the waiver knowing, voluntary defendant, tell the for example, that he intelligent must be based upon “a pen will have to conduct his defense in ac- etrating and comprehensive examination of cordance with the Federal Rules of Evi- all the circumstances.” Welty, 674 F.2d at dence and Procedure, Criminal rules 189.18 A purported waiver of counsel “can with may familiar; which he not be that be deemed only effective where the [trial the may defendant pre- in hampered judge] has amade searching suffi senting his best defense by his lack of cient satisfy him that the law; knowledge of the and that the ef- waiver was understanding voluntary.” and fectiveness of may his defense well be Id. procedure “The entire requires not by diminished his dual role as attorney only an intricate assessment of the defen and accused. addition, In as Justice intent, dant’s knowledge, capacity, and but Black wrote in Von Moltke v. Gillies a strong measure of patience as well.” (t)o (a ... defendant’s) be valid waiver Williams, (internal 44 F.3d 100 quota must be made with apprehension of omitted). tions the of charges, nature the statutory offenses them, included within It is clear that the judge trial here range of punishments allowable there- failed to conduct an adequate inquiry un under, possible charges defenses der Faretta. This record support can no and in mitigation thereof, circumstances other conclusion. Although trial judge and all other facts to a essential broad attempted if ascertain Buhl was dissat understanding of the whole matter. isfied with as well as reasons here, 18. We reiterate Welty, as we plea did in that proceedings pursuant ... to Rule 11 of require we do not the kind listing of "detailed the Federal of Rules Criminal Procedure.” of similarly] advice ... guilty mandated for 674 F.2d now State in Buhl’s absence. defense by the required as any dissatisfaction hybrid to the that, assenting in argues Welty inquiry, prong first refusing pres- to be representation prong the second and/or attempted never Buhl waived own during his denying Buhl’s ent In at all. Welty inquiry self-representa- right to court Amendment Sixth § the district under petition Wainwright, v. Brown tion. See claim was actual since that reasoned (en banc) Cir.1982) defen- (5th (finding Buhl assent- and incompetency to renew right he failed when forth dant waived arrangement set hybrid ed to himself until represent previous or conversa- colloquy above, “any further accepted representa- trial and self-repre- day of third dangers of regarding tion then). disagree. We until by counsel Op. Ct. tion unnecessary. Dist. sentation” above, inasmuch noted as at 12. of his Purported Waiver D. Buhl’s him- attempting Buhl was as Self-Representation. Right To counsel, the trial self, substitute not obtain the sec- dispensed with improperly a defen well established It is precludes this and Welty inquiry, self-represen ond waive dant can Amend- Sixth waived finding asserting it. See Raulerson tation after Cir.) (11th counsel. right to ment F.2d Wainwright, 732 (defendant representation self waived course, realize, the record We and assigned counsel by proceeding him- represented had that Buhl establishes cert. de hearing), of Faretta walking out addition, clearly Buhl was self before. nied, technical le- “street-smart,” had some Walker, (1984); Wilson L.Ed.2d 302 mo- filed numerous knowledge. He gal (2d Cir.2000) (holding that cite case law attempted to tions, even where initial request petitioner abandoned court; though obviously lie was trial lawyers had two different subsequently case that name of the about the confused again did not assert appointed See consider. he wanted self-representation had question after However, Welty, we noted App. at 67.19 discussion); cf. further open for left been repre- se prior pro street smarts (defendant Williams, at 101-102 a careful no substitute sentation were pro se not waive did not ex- could thorough inquiry. “[W]e request); denial of acquiescing court’s participation Welty’s from trapolate convic Lorick, (reversing F.2d at 1299 that he in other eases self-representation had where, defendant even tion intelligent waiver of knowing and made a proceedings in pre-trial waived his at 191. in this counsel case.” de standby participation, counsel soliciting Harrison, 451 v. United cited States We request renewed successfully fendant Cir.1971) curiam), (2d (per F.2d 1013 proceedings); Unit opening of trial at the insuffi- there was court held wherein Baker, 1263, 1267 ed States waiver of valid inquiry to establish cient Cir.1996) coun (10th advisory (request “was an the defendant though even to waive cause did not defendant sel familiarity with attorney professed who himself). Id. law.” criminal Jersey Appellate Division go- The New he was Buhl realized that After that Buhl com- agreed his own the district conduct de- allowed to ing to be own de- right to conduct his promised in the participate fense he refused to assigned vacillating “between fense proceed- from the himself and absented Appel- self-representation.” Buhl’s conducted Defense counsel ings. he wanted to court that told the trial 19. Buhl fomia." "[ujnder versus Cali- represent himself State

lees’ Br. dissenting at 28. Our colleague withdrew his motion to pro se agrees. See Dissent at 808-09. The State of it. argues although that Buhl “originally indi- The State Bennett, cites United States se, cated he wanted to proceed pro he later (10th Cir.1976), 539 F.2d 45 to support its agreed with the court that merely he was assertion that Buhl vacillated point to the unhappy attorney’s with his attention to Bennett, of waiver. defendant was con- the case.” The State thus insists that victed on indictment, one count of an but maintaining “consented to counsel’s jury agree unable to on the re- assistance.” Id. 82. The charac- State maining counts, and a mistrial was de- terizes purported assent to the clared as to those counts. Prior to the

judge’s proposed remedy as vacillation. retrial, the defendant had asked “to assist The district “[peti- court concluded that in defense,” his own by cross-examining tioner expressly hybrid consented to this certain delivering witnesses and open- form of representation, even expressing ing and closing jury. address to the satisfaction.” Dist. Op. Ct. at 9. The district granted to the court determined that Buhl agreed to the extent of permitting the defendant arrangement based the following ex- particular cross-examine How- witnesses. change between and the trial court: ever, thereafter, the defendant asked to THE [m]y COURT: ... feeling is to se, proceed pro and conduct his own de- you allow on the put you record what fense its entirety. The trial judge say represents incompetency counsel, motion, granted the and informed the de- put it all on. fendant that standby counsel ap- would be My also is to say you inclination pointed event defendant’s con- during the you of this course feel duct necessitated removal your lawyer should be doing some- from the courtroom. Id. at 50. At a thing that he is not doing, right? subsequent pre-trial hearing, defendant re- newed his Yes, to “assist”

BUHL: counsel at sir. trial rather than conduct his own defense THE COURT: Like call a witness or because he realized he qualified was not cross-examine in a different way pro- or se. The reappointed duce a that, document or something like counsel, granted defendant’s motion to is to stop point at that point some assist to the extent of conducting cross- convenient, where it’s get jury rid examination. the defendant and tell me you what want say again then to represent asked himself. put it all on the record. you Do under- motion, The court denied the appoint- stand? ed new counsel. The defendant was con- BUHL: Yes. victed following a trial at which he was THE COURT: We can do during represented by appealed, counsel and he of the trial beginning everything so arguing, alia, inter that his right to self- happened past in the you lay can representation had been denied. The out and make a record of ... it before Appeals Court of held that trial court we start the trial. if anything And had not denied the defendant’s motion to trial, up during comes the' get a message himself defendant the to me through your attorney. Say look I not taken a “clear unequivocal and had. want to talk you. to position self-representation.” Rather, on App. at 15. Therefore purported Buhl’s the court held the that defendant “forfeit- “consent” is nothing based more than right ed his to self-representation by his Buhl’s that he affirming understood what vacillating positions which continued until the court was allowing him just to do. Buhl days six the before case was set for neither requested this compromise nor trial.” Id. at 51. defense, or that his own conduct right to Buhl different. quite is situation Buhl’s request to prior his withdrew implicitly during the role counsel’s to acquiesced Buhl’s parried The trial court do so.20 the trial which hearing in course of se, and countered attempt proceed to Buhl’s mo- deny to inclination its affirmed repre full “choice” of Buhl allowing the by at six on least proceed tion to counsel, hybrid or a by defense 15,11.2-4; sentation App. See occasions. different re timely Buhl’s 11.3-5; Given representation. 11.15-17; App. at

App. at defense, 11.21-24; own conduct his quest to 11.6-11; App. at App. at also can allow. See that we a choice Buhl not judge told The 11.8-10. App. at (holding Williams, at 101-102 defense another appoint not could that he one exchange to “desire a defendant’s 14, and later said: attorney, App. does ... for another mandatory proceeding ... is now right My concern his abandoning that he was signify proceeding than this rather with none”). to have right Amendment Sixth inclination, the nature My pro se. (sic) the also charges themselves of the process hybrid Although is dealing with here case we’re kind of may miti suggested court the trial such as pro se Buhl to allow Mr. not to forcing effects of the gate some right put the to what [,] him give to but prop who has attorney upon defendant it lay the record and put to on he wants self-representa erly asserted can make motions say you I all out. is the court outlined tion, procedure [pro se]. constitu core of the with the inconsistent Thus, choice but Buhl had no App. at 24. attempting to Buhl was tional suggested. as the assert. can do the best I That’s COURT: THE entitled is pro se defendant [T]he The go pro not to se. answer is you, the case he over the actual control preserve you what communicate is to answer jury. This is present to chooses it the record put on to me and want If stand- right. Faretta of the the core yourself complete record amake de- over the participation counsel’s you. I can do that’s the best effectively allows objection fendant’s added). substantially inter- or to make (emphasis Id. at 26 deci- tactical any significant fere clearly refused allow sions, questioning or to control without own defense to conduct of the witnesses, speak instead counsel, acknowl participation importance, matter of any defendant on going the court was procedure edged the right is eroded. Faretta participate allow, refused then but standby counsel Second, participation Dictionary defines trial. Webster’s in the should the defendant’s consent unsteadily. 2. without sway “1. as: “vacillate” jury’s per- destroy allowed to not be two and forth between back to shift represent- is defendant ception Dictio Dest. of action.” Webster’s courses appear- (1990 himself. The ing Language, 989 nary English conducting of one in the status ed.). hy ance proposed response in a criminal important defense accurately de own more procedure brid pro se appear since “vacillation” than as “submission” scribed individual circumstances, the accused’s to affirm exists these or “consent”. Under autonomy. dignity that Buhl waived conclude we can not conduct). represen- Notably, the of self Goldberg, States v. (clarifying United See easily than (3d Cir.1995) concepts may waiv- waived more tation Dorman, er, by a case conduct in and waiver counsel. See right to forfeiture a defendant whether we considered where by abusive right counsel his his to had waived Wiggins, McKaskle 465 U.S. at 178 hybrid procedure mentioned which afford- (footnote omitted). See also Orazio v. ed Buhl right the to file object motions and (11th Cir.1989). Dugger, 876 F.2d 1508 actions, to his attorney’s but per- did not mit Buhl to Orazio, conduct his own the defense in trial denied mo- front of jury. the tion to did not pro- formally se defendant object court’s suggestion, ceeded to trial represented by appointed but'his conduct is a far cry Appeals counsel. The Court of from vacillation found or Orazio, waiver. See right supra. self-representation As the Court of Appeals had been denied though even Eleventh defen- Circuit has so aptly noted, dant right did not renew his self-representa- waive tion “would counsel after be a weak appointed right was counsel indeed” if a began. defendant needed to trial The court “risk concluded: sanctions court to [uphold Dorman, it.].” represent Petitioner’s himself at 1367. Accordingly, we hold that Buhl denied. By failing to repeat his did not or waive abandon his Sixth himself, Amend- represent desire petitioner ment right of self-representation by did not “con- vacillate on the issue. He did senting” to the suggestion. court’s The not abandon his request, initial either. hybrid procedure the court afforded Wainwright, Brown deprived (5th him of Cir.1982). the core of his is “Faretta peti- Orazio unlike the rights.” It is irrelevant Broum, that “Buhl who, made of tioner before the court concerns, record several challenged in- even denied his motion self-represen- ..., dictment tation, stated he was unhappy asked represent counsel to him. with his appointed counsel.” Dissent at acquiesced Orazio in being represented ability 809. His to make statements, such by counsel because his request to defend put objections record, on the had already been make denied. To himself motions out of jury’s hearing avoid a was not waiver of a previously-invoked consistent with “the preserving jury’s per- right self-representation, a defendant ception that [he was] representing is not him- required continually to renew a self,” it is that perception that is at request once it conclusively denied or “core” of self-representation. to make fruitless forego motions or co- McKaskle, 465 U.S. at operation S.Ct. 944 with defense counsel in order (1984). to preserve the issue on appeal. More- over, Broum, defense repre- Moreover, Buhl did actually not consent sented to the court that he and defen- to the suggestion Rather, court’s all. dant had resolved their differences. refused cooperate with even Here, the finding court’s of a subsequent present during trial. It is ironic that

waiver unsupported defendant is by his to cooperate refusal with hybrid such conduct and statements of the de- procedure that the him court afforded fendant and counsel. now viewed as also constituting a waiver of added) (internal Id. at 1512 (emphasis cita- himself. omitted). quotations

tions and See also Lorick, (where E. F.2d at 1299 judge trial Absence From the Trial recognize failed is not a representa- self Waiver. outset, tion at the defendant’s “subsequent After the trial court denied sever apparent acquiescence can only in fairness al of Buhl’s and required motions

be taken aas inability concession counsel, him to Buhl told the asserted”). successfully to act on the judge he did through want sit Here, the denied Buhl’s his carefully in trial. then motion to proceed pro se in no quired uncertain make certain the decision terms. The court then- offered the voluntary, afore- was explained possible of of each ever, examination careful absence, and made of Buhl’s

consequences are distin- they reveals that to the those cases Buhl to return for arrangements they ap- that judge the extent mind. The and to his guishable, changed trial he all, they support seriousness to our explained ply also understood. if he Buhl denied. rights asked Buhl’s were charges and that conclusion as follows: responded Buhl McKaskle, was allowed the defendant going to I am I realize dope, I am not a was se, standby counsel but be[en] I haven’t convicted be and dur- Both before to assist. appointed kind of (sic) any prepare to to able his trial, changed the defendant ing defense. objecting to counsel’s mind; sometimes agreeing and sometimes participation, man. I am bad play here to not amI argued his conviction he Following it. the situa- about I feel you telling how unfairly in- had participation that counsel’s action I of recourse Any kind tion. own to conduct his ability his terfered with Appel- be on the it will get, going am disagreed. Supreme Court The defense. I don’t level, this Court. not from late however, in note, that important It it. I waive here for I should see filed a writ- McKaskle, had the defendant rely I on for it. here to be my right in of appointment ten just I had issues that jeopardy double motion an earlier had rescinded which he ones and previous my presented se. waive counsel my own as I continue can rights three addi- Thereafter, filed the defendant attorney. counsel. of appointment motions tional relin- Thus, than rather App. at 76-7. be- pretrial proceedings However, when self-representation right to his quishing “announced defendant gan, ac- was from absenting himself Id. at pro se.” defending himself would be with his displeasure asserting his tually al- The 944. S.Ct. own We his defense. inability to conduct so, however, defen- do him to lowed response Buhl’s do not condone certainly pre- interrupted his own thereafter dant However, analysis our trial court. to the with consult defense sentation propri- the wisdom or controlled is not The Court during trial. “standby” counsel decision, by the manner nor Buhl’s ety of af- had been defendant concluded Rather, we must it. expressed in which he was entitled rights forded all of was so his conduct inquire into whether not Faretta, was and that issue under self-repre- with the inconsistent upon participation placed the limits it. in a waiver as to result sentation were all, clearly there trial at “for Rather, it was an Clearly it was not. really was the defendant none[].” Rather Supreme very concern the example of the placed about limits complaining discuss- in Faretta when expressed Court Id. at participation.” “standby counsel’s honoring a defen- importance ing the limits were Those properly asserted dant’s the Faretta proper because perfectly “To Court stated: Supreme The pro se. “Accord- defendant’s, counsel’s. not only can is the lawyer a defendant on force some impose must ingly, Faretta law contrives that the to believe lead him standby counsel’s Faretta, the extent of 95 limits on him.” against Id. participation.” unsolicited implicate appeal does the instant along upon McKaskle dissent relies Here, defense “standby counsel.” role of arguing that cases several other role, “standby” in a not acting counsel was vacillation conduct amounts the de- conducting charged with he was self- right of 6th Amendment waiver make fense, allowed though How- at 808. Dissent representation. See record, objections jury’s on the out of the inquiry. departure etta A under those in The Court McKaskle stated: presence. may circumstances well have in resulted course, waiver of Faretta rights. se defendant must be allowed pro [t]he Of organization happened to the and content is not control what because no Far- defense, objections, of his to make etta inquiry own ever attempted here. law, points participate to of to in argue In Wainwright, Brown v. 665 F.2d 607 dire, witnesses, question voir and to (5th Cir.1982), concedes, as the dissent jury the court and the at appro- address Dissent at the defendant requested priate in points the trial. The record pérmission to conduct own at defense reveals that in [the defendant] was fact trial upon based his discontent with his rights. these accorded attorney’s efforts ability. A hear- and/or 465 U.S. at 944. That ing motion, was held on that but the court clearly not our case. ruling instead, deferred on the motion and In Wainwright,21 Raulerson de- in presence, asked defense initially requested fendant to act as co- counsel to if see defendant’s differences during counsel a status hearing prior to representation with his could be “worked sentencing, but the trial court denied “[ejither Thereafter, out.” Id at 609. request. The defendant then sent a letter the hearing point, or some later se, asking to be allowed to proceed but informed the court that he and defendant immediately court “did not act on this had their resolved differences. He also request.” second 732 F.2d at At the stated defendant informed him had he ensuing resentencing hearing the court re- changed his mind and wanted counsel to prior ruling considered its and allowed the representation.” continue his Id ap- On act upon defendant to as co-counsel based peal, the defendant conceded that he “told a recent appellate decision of state court ”on,’ ‘stay though argued he upholding hybrid representation. such did only so after “During id, the course of the hearing,” event, any se was denied. Id at Florida Supreme Court reversed that deci- he did not renew his request sion, and the trial court reacted with- pro se until day the third of after drawing grant hybrid its of representation. dose the evidence. Ap- The Court of of co-counsel, “At this removal of defen- [the peals held that defendant had waived his immediately dant] did not his re- renew himself his conduct. quest appear pro Thereafter, se.” Id “Defendant concedes that at some point requested se, permission hearing after the on the motion to with- responded the trial court by initiating draw he asked counsel to continue his inquiry. However, a Faretta the trial representation.” Id. at (emphasis add- “subsequently court terminated the hear- ed). finding The added that “the court of ing abruptly [the when walked defendant] supported by waiver is counsel’s state- also out of the courtroom.” Id On appeal, ment to the court that he and defendant alia, argued, defendant inter that his con- had out worked their differences.” Id stitutional to self-representation had Thus, been The Appeals reject- Brown, denied. Court of analysis it is but argument ed that and ruled that defen- subsequent the court’s discussion Brown (11th dant’s decision to walk out in the middle of Dugger, Orazio v. 876 F.2d 1508 required Cir.1989), Faretta inquiry analogous constituted is most to our Thus, waiver of that right. inquiry. above, Raulerson As noted the court in Ora- only helpful would analysis Brown, our zio to distinguish was careful departure had prevented position the dissent’s as waiver is incon- undertaking Moreover, required from Far- sistent with Orazio. the court 21. See dissent at 808. quanti- the quality to assess called explain careful limit

in Brown was the evidence. ty explanation the court’s holding, and its mines the is a self-representation ruling under its scope Since usually in- Brown. on that when exercised dissent’s reliance outcome of a trial likelihood creases the stated: defendant, its denial to unfavorable to not be read should here decision Our error” to amenable “harmless is not unduly de- may a trial court imply that respected is either analysis. by defen- a firm request on fer a ruling denied; cannot be deprivation its or hopes in the himself represent to dant harmless. his may change the defendant 177, 104 944 McKaskle, be read to at it 465 U.S. should mind.... Neither added). token, we By the same avoid waiv- (emphasis defendant, that a indicate evi of the his to the force er, continually renew are not oblivious must Buhl, cruelty and is con- nor the it against even dence represent after himself Af- as trial court. it by the establishes. clusively wantonness denied whether request, simply a defen- determine judges of the we must a clear denial ter defense was motions or conduct his own make fruitless his need not dant denied,” and we hold or respected with defense forego “either cooperation appeal. That denial was not the issue on it denied. preserve that was in order error;” rather, it was a merely a “trial added). Brown, (emphasis at 612 affeet[ed] defect [that] “structural States on United The dissent’s reliance pro the trial which framework within Cir.1976) (10th Bennett, v. Fulminante, 499 Arizona ceeded].” above, there, As noted unpersuasive. also 279, 309-310, 111 S.Ct. U.S. McKaskle, upon insisted a defendant as in (1991). existence of “The L.Ed.2d 302 continually and then as co-counsel acting automatic rever requires ... such defects coun- allowing defense vacillated between they infect of the conviction because sal defense, participat- his sel to conduct Brecht v. Abra process.” trial the entire hybrid kind of in the ing with co-counsel 629-630, hamson, 113 S.Ct. clearly is not that a defendant defense (1993) (employing 123 L.Ed.2d Buhl the Constitution.22 entitled to under by the previously used categorization co-counsel, and as to act sought never Fulminante, contrast Arizona Court counsel. He requested substitute never defects “trial with “structural ing errors” counsel, and act as his sought only own analysis”). trial of the in the constitution proceed- abruptly leave his decision to represent him seeks If a defendant not, way, mine his any under did ings his ... ... denies and the self fact, himself. to represent effort ], is not enti government request! at because he trial waived his presence it the conviction affirmance of tled to an himself. unable was contrary, To subsequently obtains. to reversal and the dis is entitled disagree with the defendant We do “ make an informed ‘over opportunity Buhl faced sent’s assertion evidence,” knowing choice. whelming’ dissent Jersey Appellate Division’s New Hernandez,. F.3d at “shriek[ed] the record conclusion that F. CONCLUSION. A.2d guilt.” State v. [Buhl’s] Therefore, set forth for the reasons That, course, not the issue. Our Amend- herein, that Buhl’s Sixth we hold princi legal analysis her is driven e protect- adequately rights were not ment are not from We ples that Faretta. arise type [the McKaskle, 'hybrid' representation permit 465 U.S. at 22. See allowed.”). actually was judge defendant] ("Faretta require a trial does not however, concluding, pause ed. Before we being days retried within 120 of the date of judge’s to comment the trial the district steward- court’s order.25 ship Buhl’s Despite holding, trial. our it SCIRICA, Judge, Circuit dissenting. is evident that the trial here was I would affirm fair, the denial of attempting to be Buhl’s habe- scrupulously petition. as The record that he demonstrates did his best to afford Buhl a fair clearly did not or unequivocally waive despite trial the horrendous nature of the to counsel and invoke with, charged crimes and the self-representation. Buhl mooted his self- weight of the evidence of guilt. As representation request by accepting the above, noted the crimes Buhl was accused hybrid court’s representation propos- they of were as dastardly. vicious as were al, and thereafter any right waived to self- Yet, the trial court even relaxed the formal representation by refusing to attend and procedure rules of to insure that Buhl in participate his trial. bring objections could his to the trial Buhl twice raised the possibility of self- court’s attention.23 We do not intend our representation. Shortly before Buhl analysis any to in way detract from the filed a written motion to dismiss his attor- noteworthy of efforts the trial ney himself, and represent on which the protect rights Buhl’s constitutional or to trial court a hearing. held The trial victim, uphold dignity of Buhl’s and court’s conclusion that Buhl’s was afford her by some measure of closure motivated his dissatisfaction with his expeditiously bringing this matter to trial. appointed attorney was no more than a Nevertheless, for the reasons set forth confirmation of repeatedly what Buhl told above, can we not affirm the district court, both in the affidavit he filed in § court’s denial of petition Buhl’s support of throughout his motion1 and of Faretta ignoring without teachings hearing. At the hearing, the court con- must, therefore, and progeny. its We va- firmed the basis for the motion asking cate the district court’s denial of the writ Buhl, “Essentially, your what saying [sic] of corpus habeas and remand with instruc- counsel, incompetency of am I right?” tions that the district court issue a answered, ‘Yes, (Tr. writ of Buhl your Honor.” corpus 4.) habeas releasing Buhl from custody hearing at Buhl’s answer was 1/22/91 on these charges24 upon conditioned Buhl clear unequivocal.2 Based on that imprisonment, The court told the defendant: 23. again Buhl must once affirma- tively request proceed pro you I se if he still don’t care send whether a motion in. -Following any wishes to do so. such a re- pro You know sometimes ... se motions quest, appropriate the court must conduct an are ... filed with the Clerk’s office and Welty. under Faretta as detailed stamped what happens it's non-conform- ing— Absent a se Buhl will representation be any entitled to of counsel retrial. big stamp Put you this on it did order, supply every cross T and dot affidavit, every “expressed I. I’m In his not interested in that. dissatisfac- I’ll filing lawyer’s handle the of motions. I tion with his don’t care work and claimed the Buhl, conforming lawyer incompetent.” whether it’s or not and I can do was State v. (1994). N.J.Super. that. 635 A.2d App. at 25. majority 2. The concludes that Buhl's answer above, release, any 24. As noted such if or- was not a sufficient basis for the trial court’s dered, custody will not affect Buhl’s as he actions, reasoning “nearly every request must still imprison- serve the sentences of life se will be based a defen- ment supra as noted above. See at n. 1. dant's dissatisfaction with counsel.” I dis- retry agree; If the State requests may merely attempts elects to Buhl on the some charges underlying delay question the convictions in I this trial. see no reason to despite remaining case sufficiency sentence life answer. Buhl's evidence); United after close ensuing until the court’s answer, on clear (10th Bennett, Cir. F.2d 45 v. agree I with States with discussion detailed (as 1976) (defendant to self- forfeited did Jersey Appellate the New represen- on Court) apparent by vacillating “it became representation District trial). principal days [Buhl’s] six before the outset until tation issue almost al- attorney’s file se mo- pertained make and complaint ability to Buhl’s Buhl, 635 State incompetence.” any objections leged record to make of tions continually justified at 570. A.2d materi- the situation make arguments ap- how his about complaints motion with Faretta, where from ally different handling case. was pointed precluded specifically the defendant would still want indicated he Buhl never acting as motions filing pro se from with satisfied if he were himself counsel. along appointed co-counsel counsel. California, U.S. Faretta See (1975). the basis 45 L.Ed.2d Having confirmed remedy: proposed motion, the trial trial court majority also holds the in which representation hybrid form inquiry. Faretta proper failed to conduct repre continue to would appointed right to self- invoke his in order to But to allowed Buhl, would sent but need for trigger the representation and record put on motions his make own required to Buhl was inquiry, Faretta full his appointed with any disagreements unequivocal request a clear and make Buhl stat of case. handling the counsel’s 835, Faretta, U.S. at 422 pro se. and he proposal, understood the ed that he (defendant “clearly must 2525 95 S.Ct. spending to it immediately consented pro- indicate unequivocally” intention discussing hearing of the remainder the se). not request was clear Buhl’s ap pro his court and ceed with the pre-trial issues willingly ac- acceptance unequivocal, because he willing Buhl’s counsel. pointed (which proposal the hybrid representation representation the hybrid cepted of “submission”) (or least, as his re- very characterizes vacillated majority at the se). of the Accordingly, a withdrawal proceed pro was tantamount quest to See McKas request. self-representation obligated to conduct not court was trial 182, kle v. Wiggins, inquiry. further any (“Even (1984) he 122 when 944, 79 L.Ed.2d Buhl’s ac- suggests that majority waiving his Faretta he is not insists that pro- hybrid representation of the ceptance solicitation se defendant’s rights, a pro as a with- interpreted should not be posal partic types in certain acquiescence request self-representation drawal substantially under ipation by sanc- have “risked Buhl would in that counsel protestations mines later Nowhere does by doing otherwise. tions” stand-by unacceptably;” counsel’s terfered the trial consid- record indicate violate defendant’s did not participation if Buhl re- sanctions or threatened ered se); Raulerson pro to proceed Moreover, I see jected proposal. (11th Cir. F.2d Wainwright, 732 indicating nothing in the record 1984) (defendant self-represen waived accepting pro- Buhl into coerced voluntarily walked out tation he when At least six hybrid representation. posed v. Wain hearing); Brown his Faretta trial court during hearing, the Cir.1982) (en times (5th wright, F.2d 607 he under- Buhl whether specifically asked banc) (defendant self-represen waived time, Each proposed resolution. stood the when, hearing pro on tation after request por- record did. The responded he on,” Buhl “stay motion, he asked defendant fa- legally sophisticated trays and defendant counsel informed court manipulate acting with miliar differences, and defendant resolved their because, noted New as process self-representation not did renew court, Jersey appellate he faced “over- kind of recourse or action I am going to whelming” against evidence him get, and a rec- it level, will be on the Appellate guilt.” ord “shriek[ed] [his] State from this Court. I don’t see that I should Buhl, N.J.Super. 635 A.2d be here my for it. I waive right to be here (1994). for it.” Rather than a mere “assertion of dis The circumstances of Buhl’s second re- pleasure,” Buhl’s words and actions consti quest proceed pro se confirm Buhl suf- tuted a waiver. Buhl’s waiver—and the (and fered no constitutional violation dis- opportunities provided to him to make mo tinguish this case from those on which the tions, arguments, objections of rec relies). majority day On the con- compels the conclusion that he was ord— hybrid sistent with representation ar- not deprived of his constitutional rangement, Buhl made of record several appear pro se. See Raulerson v. Wain concerns,3 challenged the indictment on (11th Cir.1984) wright, ground it had been improperly (self-representation request waived when amended, and stated was unhappy defendant walked out of courtroom in the appointed counsel and to repre- wished midst of a hearing; Faretta “The defen sent himself at trial.4 The court denied dant’s behavior on this occasion convinces se. Buhl deprived us that he was not of his constitu counsel) (through then made appointed se.”). appear tional recusal motion. That motion also was de- nied. The jury impaneled, then was after reasons, For these I respectfully dissent. se, which again moved to dismiss indictment on jeopardy double grounds, moved for mistrial on ground juror prejudice, objected to the

presence of uniformed correctional officers

in the courtroom. The court all noted objections,

Buhl’s but indicated the trial proceed.

would At point Buhl stated he did not wish present to be during the Mary COLLINS, Individually In re Nell trial. The court advised Buhl of his Representative and as Personal present to be for the warned of the Collins, Heirs Estate of Carl Gene implications of Buhl’s pres- refusal to be Deceased, ent, and confirmed that Buhl’s decision was voluntary. responded, Hoffman, “Any re Barbara and Frederick motions, example, 3. For Buhl claimed he strongly suggests was never denied dismissal given formally charged. a warrant and never request merely delay. was intended He also discussed witness issues with the Thus, Buhl's situation differs from those in court. Charles, (3d Virgin Islands v. 72 F.3d 401 Cir.1995) James, Virgin Islands v. disagree self-represen- I that Buhl’s second (3d Cir.1991), morning-of- F.2d 468 in which request timely. morning- tation of-trial Buhl's requests were allowed. Those request already came after he had specifically cases did not address the timeli- granted been one trial continuance to allow issue, appear ness did not to have involved prepare him to continue to for trial. As both continued, Jersey Appellate already New trials and the dis- that had been and do concluded, granting trict court request Buhl's second not reflect determinations the trial courts morning on the of trial would have granting requests the last-minute would unduly delayed Op. the trial. See Ct. Dist. substantially delayed have the trials. More- 13; State v. 635 A.2d at 571-72. That over, majority's there is no for the basis view self-representation request Buhl's last-minute request that Buhl's second can somehow "re- resulting came after an earlier purposes late back” to his first permission one-month continuance and to file determining timeliness. motions, pro se and on the heels of several

Case Details

Case Name: Leroy Buhl v. Mr. Cooksey, Warden Attorney General of the State of New Jersey

Court Name: Court of Appeals for the Third Circuit

Date Published: Dec 1, 2000

Citation: 233 F.3d 783

Docket Number: 98-5342

Court Abbreviation: 3rd Cir.