Buhl v. Cooksey

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit

12-1-2000

Buhl v. Cooksey
Precedential or Non-Precedential:

Docket 98-5342

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Filed December 1, 2000

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 98-5342

LEROY BUHL,

Appellant

v.

MR. COOKSEY, WARDEN;
ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 96-cv-00958)
District Judge: Honorable Mary L. Cooper

Argued: February 7, 2000

Before: SLOVITER, SCIRICA and McKEE, Cir cuit Judges.

(Filed: December 1, 2000)

Steven A. Feldman, Esq. (Argued)
Arza R. Feldman, Esq.
Feldman & Feldman
1800 Northern Boulevard
Suite 206
Roslyn, NY 11576

Attorneys for Appellant

Marcy H. Speiser, Esq. (Argued)
Office of Attorney General of
New Jersey
Richard J. Hughes Justice Complex
Trenton, NJ 08625

Attorney for Appellees
OPINION OF THE COURT

McKEE, Circuit Judge.

Leroy Buhl appeals the district court's denial of the
habeas corpus petition he filed pursuant to 28 U.S.C.
S 2254. His petition originally contained several claims for
relief. However, Buhl only exhausted two of his claims, and
only one of those two exhausted claims is befor e us now.1
In the one claim that we consider, Buhl ar gues that he was
denied his constitutional right to conduct his own defense
during his criminal trial in state court. The district court
rejected that assertion without a hearing. W e hold that the
trial court's rejection of Buhl's clear and unequivocal
assertion of his right to proceed pr o se was improper.
Accordingly, we will vacate the district court's ruling and
remand for further procedures consistent with this opinion.

I. Background

On November 16, 1988, the State of New Jersey char ged
Buhl in a twenty-one count indictment with, inter alia,
kidnaping, criminal restraint, terroristic threats, possession
of a weapon for an unlawful purpose, aggravated sexual
assault, criminal sexual assault, aggravated assault, and
possession of a weapon by a previously convicted person.
The charges arose from a horrific 24 hour reign of terror
during which Buhl visited a living hell upon his victim. The
terror began when Buhl kidnaped a woman fr om a bar in
New Jersey in the early morning hours of August 6, 1988.
After kidnaping his victim, Buhl sexually assaulted, beat,
and threatened her over the course of the ensuing 24
hours. While holding her hostage, Buhl also dr ove his
victim to various locations in New Jersey and Pennsylvania
in her own car. Buhl's terrorized victim was only able to
_________________________________________________________________

1. Buhl is currently an inmate at the U.S. Penitentiary in Terre Haute,
Indiana, serving a separate sentence of life imprisonment that is
unrelated to, and unaffected by, this appeal. The instant appeal only
relates to the aggregate sentence of life imprisonment plus 30 years
incarceration that was imposed by the State of New Jersey.

2
escape when Pennsylvania police stopped her car to
investigate its temporary license plate. She was then able to
run to the patrol car and tell the officers that she had been
kidnaped, raped and assaulted; and beg the police for help.
When he saw his victim run to the safety of the patr ol car,
Buhl sped away, but he was captured appr oximately one
month later. Thereafter, he was successfully prosecuted in
federal court as well as the state courts of New Jersey and
Pennsylvania for the various state and federal crimes he
had committed in each jurisdiction during his rampage.

On December 20, 1990,2 -- appr oximately three weeks
before his trial in the New Jersey state court was to begin
-- Buhl filed a written motion to dismiss counsel and
proceed pro se. In an affidavit accompanying that motion
Buhl stated that he was dissatisfied with his attorney's
investigation and that his lawyer was incompetent. See
State v. Buhl, 635 A.2d 562, 570 (N.J. Super . Ct. App. Div.
1994). The trial judge held a hearing on that motion on
January 22, 1991. During that hearing, the judge
acknowledged that he had received the motion, and he
reminded Buhl that the charges wer e "darn serious," and
"overwhelming". App. at 12, 16. The judge then told Buhl
that he (the judge) believed Buhl's motion to dismiss
counsel was motivated by dissatisfaction with appointed
trial counsel. The judge nevertheless asked Buhl if he
wanted to proceed with his motion, and Buhl confirmed
that he did. Id. at 12. Buhl told the court that he had
"about twelve motions," he wanted to pursue if he was
allowed to proceed pro se. He also explained, "I understand
the charges against me[,] and I feel confident that I can
handle these myself," and he informed the court that he
had represented himself before "three separate times." Id.
at 13-14.

The judge responded: "See the problem I've got, Mr. Buhl
_________________________________________________________________

2. In its Memorandum, the district court stated that Buhl moved to
proceed pro se on December 20, 1990; however, the New Jersey Superior
Court, Appellate Division, noted that Buhl moved to represent himself on
December 14, 1990, see State v. Buhl, 635 A.2d 562, 570 (N.J. Super.
Ct. App. Div. 1994). The six day discrepancy has no impact on our
analysis.

3
is the pro se application is based upon the fact that what
your [sic] saying is that you don't have competent counsel
. . . [A]m I right?" Buhl confirmed: "Yes, your Honor." Id. at
14. The judge concluded that Buhl should not be allowed to
proceed pro se because Buhl's motion was based upon his
belief that defense counsel was unprepar ed and
incompetent. The judge stated:

My inclination, and the nature of the char ges
themselves also the kind of case we're dealing with
here is not to allow Mr. Buhl to pr oceed pro se [,] but
to give him the right to put what he wants to put on
the record and lay it all out. I say you can make
motions [pro se].

Id. at 24. The court then continued the case for
approximately one month (apparently at defense counsel's
request) to allow Buhl's attorney mor e time to contact
additional witnesses. During the intervening month, Buhl
continued to file pro se motions, but he did not file another
motion to conduct his own defense during trial.

When court resumed for trial on February 25, 1991,
Buhl's attorney recounted his attempts to track down
various defense witnesses. Id. at 58-62. Once again, Buhl
complained about a lack of communication with his
counsel and, before jury selection began, he r enewed his
motion to proceed pro se. The judge again denied his
motion, and the court began jury selection. However , at the
completion of jury selection, Buhl refused to participate in
the proceedings and he was escorted from the courtroom.
Buhl's trial lasted from February 25, 1991, until March 6,
1991. The jury convicted Buhl on all of the r emaining
eighteen counts of the indictment,3 and he was
subsequently sentenced to an aggregate ter m of life
imprisonment plus thirty years with a forty-year par ole
ineligibility. The sentence was consecutive to a federal
sentence of life imprisonment for kidnaping that has been
affirmed by this court,4 and a sentence of twenty to forty
_________________________________________________________________

3. Two counts were dismissed during the trial on jurisdictional grounds;
another count was severed.

4. See United States v. Buhl, 899 F .2d 1219 (3d Cir. 1990) (unpublished
table decision).

4
years incarceration that had been imposed in state court in
Pennsylvania following his conviction there.

Thereafter, Buhl obtained new counsel who appealed
Buhl's New Jersey conviction to the New Jersey Superior
Court, Appellate Division, alleging, inter alia , that the trial
court had denied Buhl's constitutional right of self-
representation. See State v. Buhl, supra. The Appellate
Division rejected all of Buhl's claims and affirmed his
conviction. The court concluded that Buhl's Sixth
Amendment right to conduct his own defense had not been
denied because his request to do so was under mined by his
subsequent vacillation. The court reasoned that even
though Buhl initially insisted on representing himself at
trial, he subsequently "expressly agr eed" to allow counsel to
represent him "on the condition that he[Buhl] be permitted
to file pro se motions and advance supplemental
arguments." Buhl, 635 A.2d at 571. The Appellate Division
concluded that Buhl was not entitled to this hybrid
representation, and his assertion that the trial court had
improperly denied his request to pr oceed pro se was
therefore without merit. The court r elied upon McKaskle v.
Wiggins, 465 U.S. 168 (1984), in concluding that "[Buhl's]
subsequent complaints [lost] much of their for ce," because
he accepted the trial court's offer of hybrid representation.
Buhl, 635 A.2d at 571-572. The court also thought that the
request that was made immediately prior to impaneling the
jury on February 25, 1991, was untimely because the judge
would have had to continue the trial in order to allow Buhl
to conduct his own defense. Thus, reasoned the Appellate
Division, the prosecutor's "legitimate demand for stability in
the scheduling of cases was properly accor ded priority." Id.
at 572.

The New Jersey Supreme Court refused to hear Buhl's
appeal from the decision of the Appellate Division, and
Buhl thereafter filed a petition under 28 U.S.C. S 2254
alleging four grounds for relief. The district court dismissed
that petition because it contained unexhausted claims.
However, we granted a certificate of pr obable cause5 and
_________________________________________________________________

5. Buhl's petition was filed before the enactment of the Antiterrorism and
Effective Death Penalty Act of 1996 ("AEDP A"), and thus, we use the pre-
AEDPA terminology of "certificate of probable cause."

5
remanded the case so that the district court could consider
the two exhausted claims.

On remand, the district court considered and rejected
Buhl's exhausted claims,6 and denied his petition. The
district court agreed with the Appellate Division that Buhl's
Sixth Amendment claim had actually been an assertion of
incompetent counsel, and that Buhl had vacillated between
assigned counsel and self-representation. Dist. Ct. Op. at
12. The court found that Buhl's concession to hybrid
representation negated the need for any further inquiry into
his written motion to proceed pro se. Id. The district court
concluded, the trial court had properly denied Buhl's
February 25, 1991 request because it was made on the eve
of trial, it was really a complaint about trial counsel's
stewardship, and granting the request would have further
delayed the proceedings. Id. at 12-13. The district court
then denied Buhl's petition on the merits, and later denied
an application for a certificate of probable cause. We
granted a certificate of appealability and this appeal
followed. Buhl has raised only the Sixth Amendment claim
in briefing and in argument, and that is the only claim we
will address.

II. Discussion

We have jurisdiction to review Buhl's appeal under 28
U.S.C. SS 1291, 2253. Our review of the district court's legal
conclusions is plenary. See Bey v. Morton, 124 F.3d 524,
528 (3d Cir. 1997); Walker v. V aughn, 53 F.3d 609, 613 (3d
Cir. 1995). Under the pre-AEDPA standard, the state
court's factual findings are presumed to be correct unless,
inter alia, the state court's findings ar e not "fairly supported
by the record." Pemberthy v. Beyer , 19 F.3d 857, 864 (3d
Cir. 1994) (quoting 28 U.S.C. S 2254(d)(8)). The state court's
legal findings, however, are not entitled to deference.7
_________________________________________________________________

6. The district court considered Buhl's claim that the district court
violated the Interstate Agreement on Detainers Act, 18 U.S.C. app. 2 S 2,
and his claim that the trial court improperly denied his motion to
proceed pro se in violation of the Sixth Amendment.
7. The revisions to 28 U.S.C. S 2254(d) contained in the Antiterrorism
and Effective Death Penalty Act ("AEDP A") do not apply to this case
because Buhl filed his petition for habeas corpus before AEDPA was
enacted. See Lindh v. Murphy, 521 U.S. 320, 326 (1997); Bey v. Morton,
124 F.3d 524, 528 (3d Cir. 1997).

6
Buhl contends that the trial court failed to comply with
the dictates of Faretta v. Califor nia, 422 U.S. 806 (1975),
and that this violated his right of self-repr esentation under
the Sixth Amendment. The Sixth Amendment right of self-
representation differs from other constitutional rights
because it can not be exercised without the concomitant
waiver of another fundamental right that is also guaranteed
under the Sixth Amendment; the right to counsel. 8 It is
axiomatic that a criminal defendant's waiver of a
constitutional right must be voluntary, knowing and
intelligent. Therefore, the constitutional right of self-
representation in a criminal case is conditioned upon a
voluntary, knowing and intelligent waiver of the right to be
represented by counsel. See Far etta, 422 U.S. at 835;
Edwards v. Arizona, 451 U.S. 477, 482 (1981). Waiver of
the right to counsel "depends in each case `upon the
particular facts and circumstances surr ounding that case,
including the background, experience, and conduct of the
accused.' " Edwards, 451 U.S. at 482 (quoting Johnson v.
Zerbst, 304 U.S. 458, 464 (1938)); United States v. Salemo,
61 F.3d 214, 218 (3d Cir. 1995). The trial judge must
"make a thorough inquiry and . . . take all steps necessary
to insure the fullest protection of this constitutional right."
Id. at 219 (quoting Von Moltke v. Gillies, 332 U.S. 708, 722
(1948) (Black, J., plurality opinion)).

Courts must indulge every reasonable pr esumption
against a waiver of counsel. See Johnson, 304 U.S. at 464;
Salemo, 61 F.3d at 218. In order to overcome this
presumption, and conduct his/her own defense, a
defendant must clearly and unequivocally ask to pr oceed
pro se. See Faretta, 422 U.S. at 835 (noting that the
defendant had properly asserted his right to r epresent
himself because he "clearly and unequivocally declared to
the trial judge that he wanted to represent himself and did
not want counsel"); Stano v. Dugger, 921 F.2d 1125, 1143
(11th Cir. 1991) (en banc) (noting that, while the right to
counsel "attaches automatically and must be waived
affirmatively to be lost," the right to self-representation does
_________________________________________________________________

8. The right to counsel is generally recognized to be the paramount right
vis a vis the right to self-representation. See, e.g., Tuitt v. Fair, 822
F.2d
166, 177 (1st Cir.), cert. denied, 484 U.S. 945 (1987).

7
not "attach unless and until it is asserted"); Brown v.
Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc)
(same).9

In Faretta, the court appointed a public defender to
represent the defendant during his criminal trial. However,
"[w]ell before the date of trial, . . . Faretta requested that he
be permitted to represent himself." Id. at 807. Faretta "did
not want to be represented by the public defender because
[he] believed that that office was very loaded down with . . .
a heavy case load." Id. at 807-8. The trial judge initially
allowed Faretta to proceed pro se but warned that the
ruling would be reversed if it appeared that Faretta could
not adequately defend against the charges."Several weeks
thereafter, but still prior to trial, the judge sua sponte held
a hearing to inquire into Faretta's ability to conduct his
own defense, and questioned him specifically about. . ." his
knowledge of certain rules of law and his familiarity with
court practice and procedure. Id. at 808. When Faretta was
unable to answer the inquiry to the trial judge's
satisfaction, the judge reversed his prior ruling, denied
Faretta's request to waive counsel and conduct his own
defense, and reappointed the public defender to represent
him. Id. The judge also rejected Far etta's request to file
certain pro se motions and his r equest to act as co-counsel
along with appointed counsel. Id.

Faretta went to trial represented by the public defender
_________________________________________________________________

9. See, e.g., Tuitt, 822 F.2d at 177 (defendant who wants to proceed pro
se may be required to give an unequivocal waiver of right to counsel);
United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15-16 (2d Cir.
1965) (in order to invoke right, defendant must make unequivocal
request), cert. denied, 384 U.S. 1007 (1966); United States v. Oakey, 853
F.2d 551, 553 (7th Cir. 1988) (r equest properly denied in part because
it was ambiguous); Jackson v. Ylst, 921 F .2d 882, 888 (9th Cir. 1990)
(right to proceed pro se is waived if not unequivocally and timely
asserted); Munkus v. Furlong, 170 F.3d 980, 983-984 (10th Cir. 1999)
(clear and unequivocal declaration of intention to r epresent self is
first of
several requirements defendant must meet in order to invoke right);
Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir. 1986) ("petitioner
must do no more than state his request, either orally or in writing,
unambiguously to the court so that no reasonable person can say that
the request was not made").

8
and was convicted. He appealed arguing that he was
entitled to a new trial because the trial judge had denied
his Sixth Amendment right of self-representation by forcing
him to proceed to trial represented by the public defender.
The Supreme Court agreed. After car efully reviewing the
historical underpinnings of the right to counsel, the Court
concluded:

The language and spirit of the Sixth Amendment
contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a
willing defendant--not an organ of the State interposed
between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the
accused, against his considered wish, thus violates the
logic of the Amendment. In such a case, counsel is not
an assistant, but a master; and the right to make a
defense is stripped of the personal character upon
which the Amendment insists.

Id. at 820 (footnote omitted). The Court concluded that a
state may not force a criminal defendant to be represented
by a lawyer if the defendant properly asserts his/her right
to self-representation. Id. at 836. The Court held that a
defendant must be allowed to represent him/herself when
a proper request is made and counsel is waived, even
though such a defendant will nearly always be better off
with an attorney. The issue is not the defendant's skill, nor
the likelihood of mounting a successful defense. Rather, the
issue is whether a defendant knowingly, intelligently, and
voluntarily waived the right to be repr esented by counsel,
by clearly asserting his/her right of self-r epresentation
under the Sixth Amendment.

Although a defendant need not himself have the skill
and experience of a lawyer in order competently and
intelligently to choose self-representation, he should be
made aware of the dangers and disadvantages of self-
representation, so that the recor d will establish that he
knows what he is doing and his choice is made with
eyes open.

Id. at 835.

9
Faretta had "clearly and unequivocally" informed the trial
judge that he wished to proceed pro se and that he did not
wish to be represented by the public defender weeks before
trial. Id. at 835. Faretta had pr eviously represented himself
in a criminal prosecution, and he had a high school
education. Therefore, he was "literate, competent, and
understanding, and [the Court concluded that] he was
voluntarily exercising his informed fr ee will." Id. The Court
also concluded that the trial court had erred in
conditioning Faretta's right to proceed pro se on "his
technical legal knowledge," rather than focusing on "his
knowing exercise of the right to defend himself." Id. at 835-
836. Accordingly, the Court vacated Far etta's conviction
and remanded for a new trial. Id.

Thus, once a defendant waives representation by counsel
and asserts the constitutional right of self-r epresentation at
a criminal trial, the trial court must "fully inform him in
some manner of the nature of the charges against him, the
possible penalties, and the dangers of self-r epresentation."
United States v. Hernandez, 203 F .2d 614, 624 (9th Cir.
2000) (citations and footnotes omitted). This obligation
arises under the Constitution, and it applies to state, as
well as federal judges.

As a matter of constitutional law, we have imposed a
clear and unambiguous obligation upon a trial judge
. . . [w]hether it be a U.S. District Judge or a U.S.
Magistrate Judge in a federal prosecution or a state
judge in a state criminal proceeding, the trial judge
must conduct a colloquy with the accused to deter mine
that the waiver is not only voluntary, but also knowing
and intelligent.

Henderson v. Frank, 155 F.3d 159, 166 (3d Cir. 1998).

Accordingly, we must first determine whether Buhl's
purported assertion of his right to conduct his own defense
triggered an inquiry under Faretta . If it did, we must then
determine whether the court's inquiry was adequate. We
also must consider what effect, if any, the trial court's offer
of a kind of hybrid representation had upon Buhl's claim
for relief under S 2254. Finally, we must decide what
impact, if any, Buhl's refusal to participate in the trial had
upon the rights he is asserting.

10
A. Did Buhl Adequately Assert His Right of
Self-Representation?

As noted above, a defendant's request of self-
representation in a criminal trial must be made clearly and
unequivocally. This requirement pr events defendants from
making casual and ineffective requests to proceed pro se,
and then attempting to upset "adverse ver dicts after trials
at which they had been represented by counsel."
Maldonado, 348 F.2d at 16. It also keeps defendants from
proceeding pro se, then challenging any subsequent
conviction by alleging a denial of the right to counsel.
Requiring a clear and unequivocal assertion of the right
also protects defendants from inadvertently waiving counsel
based upon " `occasional musings on the benefits of self-
representation,' " United States v. Frazier-el, 204 F.3 553,
558 (4th Cir. 2000) (quoting United States v. Arlt, 41 F.3d
516, 519 (9th Cir. 1994)).

A defendant need not "recite some talismanic formula
hoping to open the eyes and ears of the court to his
request" to invoke his/her Sixth Amendment rights under
Faretta. Dorman, 798 F .2d at 1366. Indeed, such a
requirement would contradict the right it was designed to
protect as a defendant's Sixth Amendment right of self-
representation would then be conditioned upon his/her
knowledge of the precise language needed to assert it.
Rather than placing such a burden on a defendant, the law
simply requires an affirmative, unequivocal, request, and
does not require that request to be written or in the form
of a formal motion filed with the court. See United States v.
Leggett, 162 F.3d 237, 249 (3d Cir . 1998) (citing United
States v. Goldberg, 67 F.3d 1092, 1099 (3d Cir. 1995)), cert.
denied, 120 S. Ct. 167 (1999). Here, Buhl did more than
that.

It is undisputed that Buhl filed a written motion to
proceed pro se on December 20, 1990, and it is clear that
the trial court understood that Buhl was asserting this
right because the court held a hearing on that motion a
month later on January 22, 1991. However, at that hearing,
the court focused on Buhl's motivation for filing the motion,
rather than inquiring into whether Buhl's request was
knowingly, voluntarily, and intelligently made. That focus

11
caused the court to conclude that Buhl's request was
motivated by his dissatisfaction with his appointed
attorney. The following exchange at the January hearing is
illustrative:

THE COURT: Okay, the first thing I want to take care
of is Mr. Buhl's motion. Mr. Buhl has got a motion to
proceed pro se. Mr. Buhl, stand up please, sir. Mr.
Buhl, you've got a motion to proceed pr o se. I've got a
lot of difficulty with the motion. I mean I don't know
anything bought (sic) the case. All I know is there are
darn serious charges here and your (sic) proceeding pro
se is of great concern to me and I r ead the motion that
you made.
The reason, apparently, is you're not satisfied with
your attorney.10 Do you want to proceed with your
motion?

BUHL: Yes, your Honor. If I may, I tried to call [defense
counsel's] office. Of the times I've succeeded to talking
to [him] approximately one time on the telephone for
five minutes. He visited me briefly for about an hour,
he talked--

THE COURT: When was that?

BUHL: He talked at me rather than to me. . .. Further
more, as far as this self representation, I've got about
twelve motions that if I'm allowed to proceed pro se, I
will file these motions with the Clerk of the Court for
the court's decision to be made.

Like I say, there are about a dozen motions. I tried to
contact [my attorney] and I've written letters. I'm not
getting any place fast. I just got my legal material this
morning. . . . .
_________________________________________________________________

10. The dissent minimizes the judge's statement by asserting that it was
"no more than a confirmation of what Buhl repeatedly told the court,
. . ." Dissent at 39. However, it is clear that it was more than an
"affirmation" of Buhl's request. The trial judge was clearly stating that
he
had a "problem" with the request. That "problem" arose solely from the
judge's belief that Buhl's assertion of his constitutional right of self-
representation was not an appropriate way to address Buhl's
dissatisfaction with defense counsel.

12
App. at 12-13.

Buhl also told the court that he had repr esented himself
on three prior occasions, and proclaimed:"I understand the
charges against me[,] and I feel confident that I can handle
these myself." Id. at 13-14. The court denied his request,
and the case was eventually adjourned until February 25th,
1991. On that date, before the court began selecting the
jury, Buhl reiterated his desire to conduct his own defense.
He stated: "Under State versus Califor nia, I would like to
represent myself." The judge replied: "Your application is
again denied." Id. at 67.

On this record, "no reasonable person can say that the
request [for self-representation] was not made." Dorman,
798 F.2d at 1366. The State argues that Buhl vacillated by
asking to proceed pro se while agreeing with the trial
judge's conclusion that his wish to proceed pro se was
based upon his dissatisfaction with counsel.11 In affirming
Buhl's conviction, the New Jersey Appellate Division noted
that "[t]hrough specific inquiry with the defendant, it
became apparent almost at the outset that his principal
complaint pertained to his attorney's alleged incompetence.
Defendant repeatedly expressed his mounting frustration
that his case was not being given the attention it r equired."
Buhl, 635 A.2d at 570. The district court agreed. That court
stated:

After petitioner asserted his desire to pr oceed pro se,
the trial judge began the required inquiry to ascertain
whether the defendant knowingly and intelligently
wished to waive his right to counsel. . . . It quickly
became apparent that petitioner was actually claiming
incompetency of counsel. [App. at 14.] The judge even
asked petitioner to clarify for the recor d, `Essentially,
what your (sic) saying is incompetency of counsel, am
_________________________________________________________________

11. Our dissenting colleague argues: "The record demonstrates Buhl did
not clearly or unequivocally waive his right to counsel and invoke his
right to self-representation," dissent at 39, because his subsequent
conduct "was tantamount to a withdrawal of his self-representation
request.' Id at 40. However, the issues that arise from Buhl's subsequent
conduct are distinct from the issue of whether he clearly and
unequivocally asserted his right to proceed pro se in the first place.

13
 I right?' Petitioner then responded, `Y es, your honor.'
(Id.) Thus petitioner characterized his own claim as one
of incompetency of counsel rather than as an attempt to
represent himself.

Dist. Ct. Op. at 12. (emphasis added). However , the district
court only referenced part of the exchange between the trial
court and Buhl. The context of that exchange confirms that
although Buhl did agree that he believed his counsel was
incompetent, that belief did not alter the fact that he was
attempting to waive representation by counsel, and proceed
pro se. He was not requesting substitute counsel. As noted
above, the trial court stated:

See the problem I've got, Mr. Buhl, is the pro se
application is based upon the fact that what your (sic)
saying is that you don't have competent counsel. . ..
Your pro se application is based upon the fact -- . . .
The pro se application is based upon the fact that your
(sic) saying that I have counsel, in my opinion, is not
working in my best interest, not doing the thing that
he is supposed to do that I want him to do for me.
Essentially, what your (sic) saying is incompetency of
counsel, am I right?

App. at 14. Although Buhl confirmed the court's
assessment by answering: "[y]es, your Honor ," that did not
alter the trial court's obligation to conduct an appropriate
inquiry into Buhl's purported waiver of counsel, and his
request to proceed pro se. Id. Buhl's motivation for waiving
counsel was not the issue. Common sense suggests (and
experience confirms) that nearly every r equest to proceed
pro se will be based upon a defendant's dissatisfaction with
counsel. It is the rare defendant who will ask to proceed pro
se even though he/she is thoroughly delighted with
counsel's representation, ability, and pr eparation.
Therefore, it should come as no surprise that Buhl's
request was motivated by his dissatisfaction with defense
counsel. However, a defendant's constitutional right of self-
representation is not automatically negated by his/her
motivation for asserting it.12
_________________________________________________________________

12. The dissent disagrees that nearly all requests to proceed pro se are
motivated by dissatisfaction with defense counsel and quite correctly

14
In fact, it is clear from the Supreme Court's opinion that
Faretta was motivated by his displeasur e with defense
counsel. Buhl's motivations, and his complaint that his
attorney had not spent enough time preparing the case
were the same as Faretta's. Faretta explained his request to
proceed pro se by declaring that"he did not want to be
represented by the public defender because he believed that
that office was `very loaded down with . . . a heavy case
load,' " 422 U.S. at 807, and counsel would therefore not
have time to properly prepare a defense. The Court
concluded that Faretta's concern about the quality of
counsel's representation was not r elevant to resolving the
issues raised by Faretta's request to pr oceed pro se. The
Court stated:

It is undeniable that in most criminal prosecutions
defendants could better defend with counsel's guidance
than by their own unskilled efforts. But wher e the
defendant will not voluntarily accept repr esentation by
counsel, the potential advantage of a lawyer's training
and experience can be realized, if at all, only
imperfectly. . . . The right to defend is personal. The
defendant, and not his lawyer or the State, will bear
the personal consequences of a conviction. It is the
defendant, therefore, who must be fr ee personally to
decide whether in his particular case counsel is to his
advantage.

Id. at 834.

Once Buhl properly asserted his right to pr oceed pro se
the trial court was obligated to undertake an appr opriate
inquiry under Faretta even though Buhl's request
apparently rested upon nothing other than dissatisfaction
with defense counsel. Moreover, that duty was not
_________________________________________________________________

notes: "some requests may be merely attempts to delay trial." Dissent at
39, n.2. However, as we note below, we have ruled that the trial court
has a duty to make an appropriate inquiry into the right to proceed pro
se under Faretta, even wher e it appears that the defendant is attempting
to delay the proceedings. See United States v. Welty, 674 F.2d 185, 189
(3rd Cir. 1982) ("even well-founded suspicions of intentional delay and
manipulative tactics can provide no substitute for the inquiries
necessary to protect a defendant's constitutional rights.").

15
mitigated by the court's laudable concern over the quality
of the defense Buhl would have if he waived counsel and
proceeded to trial, nor the seriousness of the charges.
"[A]lthough he may conduct his own defense ultimately to
his own detriment, his choice must be honored out of that
respect for the individual which is the lifeblood of the law."
Id. (internal quotations omitted).

B. Was Buhl's Motion to Proceed Pro Se Timely?

The district court concluded that Buhl's February 25th
request to proceed pro se was untimely because "[j]ury
selection was set to begin that day, and granting the motion
at that point would have necessitated a continuance." Dist.
Ct. Op. at 13. The Appellate Division had concluded:"It is
abundantly plain that the trial judge would have been
required to continue the trial for a substantial period of
time had he acceded to [Buhl's February 25th] demand."
Buhl, 635 A.2d at 572. However, the timing of the request
is only one factor that a court must consider in ruling upon
a motion to proceed pro se. Accordingly, we have even
found that requests made on the "eve of trial" were valid.
See Government of the Virgin Islands v. James, 934 F.2d
468 (3d Cir. 1991) (request to dismiss lawyer and proceed
pro se made before jury selection on the day of trial valid);
Government of the Virgin Islands v. Charles, 72 F.3d 401
(3d Cir. 1995) (request made the day before trial began).
The dissent argues that Buhl's second r equest was
untimely because it "came after [Buhl] had already been
granted one trial continuance to allow him to continue to
prepare for trial. . . . [G]ranting Buhl's second request on
the morning of trial would have unduly delayed the trial."
Dissent at 41, n. 4. However, the dissent's position ignores
the fact that Buhl originally filed his motion on December
20, 1990; several weeks before his trial was scheduled to
begin. The trial court held a hearing on that motion a
month later on January 22, 1991, and Buhl's trial was then
scheduled to begin the following day. At no time during that
January 22nd hearing did the trial court even attempt an
appropriate inquiry under Faretta . Rather, Buhl's attorney
requested a continuance so that he (defense counsel) could
better address Buhl's concerns about potential witnesses.

16
The trial was then rescheduled to February 25, 1991. On
that date, Buhl orally renewed his motion to pr oceed pro se
before jury selection began. The request was summarily
denied, and jury selection began. App. at 67.

Therefore, the second request (which is really nothing
more than a reassertion of the prior written motion) is
irrelevant to our timeliness inquiry because the Faretta
violation had already occurred.13 Buhl had already clearly
asserted his right to proceed pro se in a timely manner. See
Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir. 1994) (right is
unqualified if request made before start of trial); Chapman
v. United States, 553 F.2d 886, 894 (5th Cir. 1977) (motion
timely if made before jury impaneled); United States v.
Lorick, 753 F.2d 1295, 1298 (4th Cir .) (request must be
asserted before trial), cert. denied, 471 U.S. 1107 (1985);
Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982) (request
made before jury impanelment is timely); Horton v. Dugger,
895 F.2d 714, 717 (11th Cir. 1990) (r equest untimely
because meaningful trial proceedings had taken place since
a jury had been selected); see also Pitts v. Redman, 776
F.Supp. 907, 920-921 (D. Del. 1991) (Roth, J.) (request on
third day of trial not made "before meaningful trial
proceedings had begun" and therefor e untimely), aff 'd 970
F.2d 899 (3d Cir.), cert. denied , 506 U.S. 1003 (1992).

The dissent is concerned that the recor d "strongly
suggests Buhl's request was intended mer ely for delay."
Dissent at 41, n.4. However, the recor d does not support
that conclusion. The trial judge certainly voiced no such
concern, nor did he attribute any such motivation to Buhl.
The court did inquire about the length of the trial in
addressing Buhl's original pro se request, but the court
never suggested that Buhl was attempting to delay or
_________________________________________________________________

13. The dissent quite correctly states that"Buhl was required to make a
clear and unequivocal request to proceed pro se." Dissent at 40.
However, the dissent then conflates the obviously clear and unequivocal
request Buhl made in his written motion with his motivations for
asserting his right to proceed pro se, and the subsequent hybrid
representation that he was afforded after the Faretta violation,and
erroneously concludes that Buhl's request"was not clear and
unequivocal, because he willing accepted the hybrid representation. . . ."
Dissent at 41.

17
disrupt the proceedings, nor did it ever suggest that the
timing of the request somehow negated its obligations
under Faretta. In fact, the pr osecution did not even object,
or claim that any delay would prejudice its case. Rather,
during the January hearing, the judge made the following
inquiry:

THE COURT: . . . [H]ow many witnesses has the State
got?

STATE: There ar e 22 on the witness list, Judge.

THE COURT: So you're talking about how long a
trial?

STATE: Two weeks.

THE COURT: You know, and the charges here are
just overwhelming to me. I don't care what your
background is. I've heard all kinds of things, I really
don't care. I'm concerned about this trial and these are
serious charges.

BUHL: I've got at least that many witnesses. I sent a
witness list to . . . the Public Defender's office.
November 13th, I sent it . . . and I have not got any
response. Like I say, I've got pretrial motions. I think
these thinks (sic) should be heard. . .. Certainly if I'm
not allowed to prepare and present pr etrial motions,
these things can never be decided.

App. at 16. The record does reflect that the judge was
understandably anxious to begin the trial. In suggesting
that counsel would conduct the defense, but that Buhl
would be allowed to file whatever motions he wanted the
court stated:

I will make whatever concessions, I will do whatever I
have to do to make sure that you get those things on
the record. There's only two things, that I am not
stoping (sic) the trial, I am going to pr oceed with the
trial, okay? And my other concern is appearing pro se,
and my inclination is not to allow you to appear pro se.
But anything else, I am receptive to putting it on the

18
 record any way you want to do it, but it's got to be
done the right way.14

Id. at 18. Moreover, the judge did continue the trial for
approximately one month at defense counsel's r equest so
that counsel could try to locate witnesses. Id. at 58.

The State argues that the "lateness" of Buhl's "second
request" undermines the constitutional right it is based
upon because granting it would have delayed the
proceedings. The State reminds us that the trial court had
already granted a continuance when Buhl r enewed his
request to represent himself on "the eve of trial." The State
claims that since the judge had continued the trial for one
month at defense counsel's request, Buhl could have
renewed his motion during the month between the January
22nd and the February 25th hearings when he filed other
motions. However, his failure to do so is irrelevant because
the law imposes no such obligation as a condition
precedent to preserving one's right to pr oceed pro se. Orazio
v. Dugger, 876 F.2d 1508, 1512 (11th Cir . 1989) (defendant
did not need to "continually renew his r equest to proceed
pro se after it had been conclusively denied.").15

Moreover, although we note that the r ecord does not
establish any dilatory motives on the part of Buhl, we do
not suggest that a finding of such motives would negate the
court's duty to inquire under Faretta. As we noted earlier,
in United States v. Welty, 674 F .2d 185, 193 (3d Cir. 1982),
such an inquiry is required even when the trial judge
suspects that the defendant is "attempting to disrupt the
administration of justice by manipulative requests for, and
dismissals of, counsel." See id. at 189 ("While we can
understand, and perhaps even sympathize, with the
frustration and exasperation of the district court judge,
even well-founded suspicions of intentional delay and
manipulative tactics can provide no substitute for the
_________________________________________________________________

14. We discuss whether this "hybrid" procedure in any way compromised
Buhl's right of self-representation below.

15. Ironically, had Buhl not reiterated his request immediately before
jury selection the State would most certainly ar gue that he waived his
written motion by failing to reiterate the r equest prior to jury
selection.

19
inquiries necessary to protect a defendant's constitutional
rights.").

This is not to suggest, however, that a r equest to proceed
pro se may never be denied when it r esults in an
unjustifiable interruption of court proceedings. See Fritz,
682 F.2d at 784; Horton, 895 F .2d at 717 n.2; United States
v. Walker, 142 F.3d 103, 109 (2d Cir.) (defendant's reasons
for self-representation insufficient and improper where
intent is to secure delay and obstruct the or derly course of
justice) cert. denied, 525 U.S. 896 (1998); cf. Chapman, 553
F.2d at 895 (no indication that defendant's r equest was
designed to achieve delay or tactical advantage, and request
should have been honored). A court may conclude that a
defendant who intends nothing more than disruption and
delay is not actually tendering a knowing, voluntary and
intelligent waiver of counsel, and has not unequivocally
asserted the constitutional right to conduct his/her own
defense. While this determination may well pr esent
difficulties, it is the kind of inquiry district courts routinely
make. See Welty, 674 F.2d at 191 ("conducting an inquiry
into waiver of counsel, [presents] the district court . . . with
a difficult task. Particularly . . . when the defendant, as is
[the defendant] here, . . . is appar ently street-wise and
experienced in the litigation process . . . . But the making
of such determinations and inquiries is not unusual for a
district court. Determinations of effective waiver,
voluntariness, and the like, are routinely made in various
contexts. . . ."). However, the court can not properly make
such a determination without first conducting an adequate
inquiry under Faretta.

Here, the Appellate Division acknowledged that"generally
[ ] a request to proceed pro se made before a jury is sworn
should ordinarily be honored," but stated that "this
proposition has been stated too broadly. The right of self-
representation cannot be insisted upon in a manner that
will obstruct the orderly disposition of criminal cases. A
defendant desiring to exercise the right must do so with
reasonable diligence." Buhl, 635 A.2d at 571. Accordingly,
the Appellate Division concluded that Buhl's February 25
request was untimely even though it was made before the
jury was impaneled. The court concluded that "[t]he

20
prosecutor's legitimate demand for stability in the
scheduling of cases was properly accorded priority," id.,
and the district court agreed. However, that consideration is
not supported by this record. As noted earlier. Buhl made
his request well in advance of trial. Mor eover, the
prosecutor never voiced this concern.

We agree that the "right of self-r epresentation is not a
license to disrupt the criminal calendar, or a trial in
progress," Buhl, 635 A.2d at 571 (citing Mayberry v.
Pennsylvania, 400 U.S. 455, 468 (1971) (Bur ger, J.,
concurring)), but that is simply not the issue her e. We have
previously acknowledged the importance of the efficient
administration of justice noting "that ther e are
countervailing governmental interests" that should be
considered when a defendant asserts a "last-minute request
for substitution of counsel and a continuance," United
States v. Goldberg, 67 F.3d 1092, 1098 (3d Cir. 1995).
However, where fundamental rights ar e at stake, " `a rigid
insistence on expedition in the face of a justifiable request
for delay can amount to a constitutional violation.' " Id.
(quoting United States v. Rankin, 779 F .2d 956, 960 (3d Cir.
1986)). The trial was not in progress when Buhl attempted
to waive counsel and conduct his own defense, or when he
subsequently renewed that effort prior to jury selection.16
Accordingly, we hold that Buhl made a timely r equest to
represent himself.
_________________________________________________________________

16. After a trial has commenced, the right of self-representation is
curtailed, and "the judge considering the motion must `weigh the
prejudice to the legitimate interests of the defendant' against the
`potential disruption of proceedings already in progress.' " UnitedStates
v. Stevens, 83 F.3d 60, 66-67 (2d Cir.) (quoting Maldonado, 348 F.2d at
15) cert. denied, 519 U.S. 902 (1996); see also United States v. Cocivera,
104 F.3d 566, 570 (3d Cir. 1996) (noting that the judge has discretion to
allow or deny a request after trial has begun). The Supreme Court
recently noted that "[e]ven at the triallevel, [ ], the government's
interest
in ensuring the integrity and efficiency of the trial at times outweighs
the
defendant's interest in acting as his own lawyer." Martinez v. Court of
Appeal of California, Fourth Appellate District, 120 S. Ct. 684, 691
(2000).

21
C. The Trial Court's Faretta Inquiry.

Faretta held that a defendant attempting to proceed pro
se at trial "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 eyes open." 422 U.S. at 835. We amplified this
requirement in Welty.17 There, a defendant expressed
dissatisfaction with trial counsel and was of fered a choice
of proceeding with the attorney who had been appointed, or
proceeding pro se. The defendant elected to dismiss his
attorney and proceed pro se. Not surprisingly, he was
convicted. He thereafter appealed his conviction arguing
that the purported waiver of his Sixth Amendment right to
counsel was invalid. We agreed, and or dered a new trial. In
doing so, we noted that trial courts must conduct a two-
prong inquiry when a defendant seeks new counsel "on the
eve of trial." Id. at 187. The court mustfirst determine the
reasons for the defendant's dissatisfaction with counsel in
order to decide if there is "good cause" to dismiss counsel
and delay the proceedings. If good cause exists counsel
should be dismissed even though it may necessitate
continuing the trial. Id. However, if the court concludes that
good cause does not exist, "the defendant is then left with
a choice between continuing with his existing counsel or
proceeding to trial pro se." Id.

Here, Buhl did not request substitute counsel. Rather,
from the outset he sought only to proceed to trial with no
counsel. Accordingly, the first prong of the Welty inquiry is
_________________________________________________________________

17. Although Welty was decided on direct appeal of a conviction in a
district court, "[t]he same standard for determining whether a defendant
waived his right to counsel applies in federal court habeas corpus review
of state court proceedings." Piankhy v. Cuyler, 703 F.2d 728, 731 n.3 (3d
Cir. 1983) (citing Brewer v. W illiams, 430 U.S. 387, 403-04 (1977)).

Circuit Courts of Appeals differ as to the extent of the inquiry that is
required. See McDowell v. United States, 484 U.S. 980 (1987) (White, J.,
dissenting from denial of certiorari). W e endorse a more formalized
inquiry, as do several other circuit courts of appeals. See United States
v. Chaney, 662 F.2d 1148, 1152 (5th Cir . Unit B Dec. 1981); United
States v. Edwards, 716 F.2d 822, 824 (11th Cir. 1983); United States v.
Waters, 158 F.3d 933, 944 (6th Cir . 1998); United States v. Bailey, 675
F.2d 1292, 1300-1301 (D.C. Cir.), cert. denied, 459 U.S. 853 (1982).

22
not our focus here. However, in James, we noted that even
in a case where a defendant only asks to pr oceed pro se,
the court must make some inquiry about a defendant's
reasons for the request. See James, 934 F.2d at 471. It is
clear from our discussion in James, that the inquiry into a
defendant's motives is necessary and appropriate because it
helps the trial court determine if the purported waiver of
counsel is voluntary, knowing and intelligent. For example,
it allows a court to determine if a defendant is truly
asserting the right of self-representation, or merely seeking
alternative counsel. Id. ("W e find . . . that the district
court's inquiry was sufficient to determine the reasons for
James dissatisfaction and that good cause for substitution
of counsel did not exist"). It also assists the court in
determining if the request is mer ely an attempt to delay
and derail the proceedings, as opposed to a genuine
attempt (no matter how ill-advised) to conduct one's own
defense. In Welty we elaborated upon the nature of the
inquiry a trial court must conduct when a defendant waives
counsel and asks to represent him/herself. We stated that
the trial judge must:

[T]ake particular pains in discharging .. . these
inquiries concerning . . . waiver of counsel. Perfunctory
questioning is not sufficient. This is true even when the
trial judge strongly suspects that the defendant's
requests are disingenuous and designed solely to
manipulate the judicial process and to delay the trial.
Although such tactics by an accused cannot be allowed
to succeed, at the same time, a trial cannot be
permitted to go forward when a defendant does not
fully appreciate the impact of his actions on his
fundamental rights.

Id. We then amplified the substance of the inquiry required
for a valid waiver of counsel. We stated:

In order to ensure that a defendant truly appreciates
the dangers and disadvantages of self-repr esentation,
the district court should advise him in unequivocal
terms both of the technical problems he may encounter
in acting as his own attorney and of the risks he takes
if his defense efforts are unsuccessful. The district
court judge should tell the defendant, for example, that

23
 he will have to conduct his defense in accor dance with
the Federal Rules of Evidence and Criminal Pr ocedure,
rules with which he may not be familiar; that the
defendant may be hampered in presenting his best
defense by his lack of knowledge of the law; and that
the effectiveness of his defense may well be diminished
by his dual role as attorney and accused. In addition,
as Justice Black wrote in Von Moltke v. Gillies . . . (t)o
be valid (a defendant's) waiver must be made with an
apprehension of the nature of the char ges, the
statutory offenses included within them, the range of
allowable punishments thereunder, possible defenses
to the charges and circumstances in mitigation thereof,
and all other facts essential to a broad understanding
of the whole matter.

Welty, 674 F.2d at 188-9 (internal citations and quotations
omitted). See also Salemo, 61 F.3d at 220.

We also concluded that the trial court must satisfy itself
that the defendant understands the significance and effect
of his/her purported waiver and not merely accept the
defendant's statement to that effect. "The mere fact that an
accused may tell (the court) that he is infor med of his right
to counsel and desires to waive this right does not
automatically end the judge's responsibility." Welty, 674
F.2d at 189 (quoting Von Moltke v. Gillies, 332 U.S. 708,
724 (1948) (Black, J. plurality opinion)). "This protecting
duty imposes the serious and weighty responsibility upon
the trial judge of determining whether ther e is an intelligent
and competent waiver by the accused. While an accused
may waive the right to counsel, whether ther e is a proper
waiver should be clearly determined by the court, . . . ."
Johnson v. Zerbst, 304 U.S. 458, 465 (1938). The trial
court's determination that the waiver is knowing, voluntary
and intelligent must be based upon "a penetrating and
comprehensive examination of all the cir cumstances."
Welty, 674 F.2d at 189.18 A purported waiver of counsel
_________________________________________________________________

18. We reiterate here, as we didin Welty, that we do not require the kind
of "detailed listing of advice similar[ly] . . . mandated for guilty plea
proceedings . . . pursuant to Rule 11 of the Federal Rules of Criminal
Procedure." 674 F.2d at 189.

24
"can be deemed effective only where the [trial judge] has
made a searching inquiry sufficient to satisfy him that the
defendant's waiver was understanding and voluntary." Id.
"The entire procedure requir es not only an intricate
assessment of the defendant's intent, knowledge, and
capacity, but a strong measure of patience as well."
Williams, 44 F.3d at 100 (inter nal quotations omitted).

It is clear that the trial judge here failed to conduct an
adequate inquiry under Faretta. This record can support no
other conclusion. Although the trial judge attempted to
ascertain if Buhl was dissatisfied with counsel as well as
the reasons for any dissatisfaction as r equired by the first
prong of the Welty inquiry, the judge never attempted the
second prong of the Welty inquiry at all. In denying Buhl's
petition under S 2254, the district court r easoned that since
Buhl's actual claim was incompetency of counsel and Buhl
assented to the hybrid arrangement set forth above,"any
further colloquy or conversation regarding the dangers of
self-representation" was unnecessary. Dist. Ct. Op. at 12.
However, as noted above, inasmuch as Buhl was
attempting to represent himself, not obtain substitute
counsel, the trial court improperly dispensed with the
second Welty inquiry, and this pr ecludes a finding that
Buhl waived his Sixth Amendment right to counsel.

We realize, of course, that the r ecord establishes that
Buhl had represented himself befor e. In addition, Buhl was
clearly "street-smart," and had some technical legal
knowledge. He filed numerous motions, and even attempted
to cite case law to the trial court; though he was obviously
confused about the name of the case that he wanted the
trial court to consider. See App. at 67.19 However, in Welty,
we noted that street smarts and prior pr o se representation
were no substitute for a careful and thor ough inquiry. "[W]e
could not extrapolate from Welty's participation or self-
representation in other cases that he made a knowing and
intelligent waiver of counsel in this case." 674 F.2d at 191.
We cited United States v. Harrison, 451 F.2d 1013 (2d Cir.
1971) (per curiam), wherein the court held ther e was
_________________________________________________________________

19. Buhl told the trial court that he wanted to r epresent himself
"[u]nder
State versus California."

25
insufficient inquiry to establish a valid waiver of counsel
even though the defendant "was an attorney who professed
familiarity with criminal law." Id.

After Buhl realized that he was not going to be allowed to
conduct his own defense he refused to participate in the
trial, and absented himself from the pr oceedings. Defense
counsel conducted Buhl's defense in Buhl's absence. The
State now argues that, in assenting to the hybrid
representation and/or refusing to be present during his
own trial, Buhl waived his Sixth Amendment right to self-
representation. See Brown v. W ainwright, 665 F.2d 607 (5th
Cir. 1982) (en banc) (finding defendant waived right when
he failed to renew previous request to represent himself
until third day of trial and accepted r epresentation by
counsel until then). We disagree.

D. Buhl's Purported Waiver of his Right To
Self-Representation.

It is well established that a defendant can waive the right
of self-representation after asserting it. See Raulerson v.
Wainwright, 732 F.2d 803, 809 (11th Cir.) (defendant
waived self representation right by pr oceeding with
assigned counsel and walking out of Faretta hearing), cert.
denied, 469 U.S. 966 (1984); Wilson v. Walker, 204 F.3d 33,
38 (2d Cir. 2000) (holding that petitioner abandoned initial
request where he subsequently had two dif ferent lawyers
appointed and did not assert right again after question of
self-representation had been left open for further
discussion); cf. Williams, 44 F .3d at 101-102 (defendant did
not waive right to proceed pro se by acquiescing in court's
denial of request); Lorick, 753 F .2d at 1299 (reversing
conviction where, even if pro se defendant had waived his
right in pre-trial proceedings by soliciting standby counsel
participation, defendant successfully renewed his request at
the opening of trial proceedings); United States v. Baker, 84
F.3d 1263, 1267 (10th Cir. 1996) (r equest for advisory
counsel did not cause defendant to waive right to r epresent
himself).

The New Jersey Appellate Division and the district court
agreed that Buhl compromised his right to conduct his own

26
defense by vacillating "between assigned counsel and self-
representation." Appellees' Br. at 28. Our dissenting
colleague agrees. See Dissent at 40-41. The State argues
that although Buhl "originally indicated he wanted to
proceed pro se, he later agr eed with the court that he was
merely unhappy with his attorney's attention to the case."
The State thus insists that Buhl "consented to maintaining
counsel's assistance." Id. at 32. The State characterizes
Buhl's purported assent to the judge's proposed remedy as
vacillation. The district court concluded that "[p]etitioner
expressly consented to this hybrid form of representation,
even expressing satisfaction." Dist. Ct. Op. at 9. The court
determined that Buhl agreed to the arrangement based
upon the following exchange between Buhl and the trial
court:

THE COURT: . . . [m]y feeling is to allow you to put on
the record what you say represents incompetency of
counsel, put it all on.

My inclination also is to say to you is during the course
of this trial if you feel that your lawyer should be doing
something that he is not doing, right?

BUHL: Yes, sir.

THE COURT: Like call a witness or cross-examine in a
different way or produce a document or something like
that, is to stop at that point or at some point wher e it's
convenient, get rid of the jury and tell me what you
want to say and put it all on the recor d. Do you
understand?

BUHL: Yes.

THE COURT: We can do that during the beginning of
the trial so everything that happened in the past you
can lay out and make a record of it . . . before we start
the trial. And if anything comes up during the trial, get
a message to me through your attorney. Say look I
want to talk to you.

App. at 15. Therefore Buhl's purported"consent" is based
upon nothing more than Buhl's affirming that he
understood what the court was allowing him to do. Buhl

27
neither requested this compromise nor withdrew his motion
to proceed pro se because of it.

The State cites United States v. Bennett, 539 F.2d 45
(10th Cir. 1976), to support its assertion that Buhl
vacillated to the point of waiver. In Bennett, defendant was
convicted on one count of an indictment, but the jury was
unable to agree on the remaining counts, and a mistrial
was declared as to those counts. Prior to the r etrial, the
defendant had asked "to assist in his own defense," by
cross-examining certain witnesses and delivering the
opening and closing address to the jury. The district court
granted the request to the extent of per mitting the
defendant to cross-examine particular witnesses. However,
thereafter, the defendant asked to pr oceed pro se, and
conduct his own defense in its entirety. The trial judge
granted the motion, and informed the defendant that
standby counsel would be appointed in the event that
defendant's conduct necessitated defendant's r emoval from
the courtroom. Id. at 50. At a subsequent pre-trial hearing,
defendant renewed his request to "assist" counsel at his
trial rather than conduct his own defense because he
realized he was not qualified to proceed pro se. The judge
reappointed counsel, and granted defendant's motion to
assist to the extent of conducting cross-examination.
However, the defendant then again asked to r epresent
himself. The court denied the motion, and appointed new
counsel. The defendant was convicted following a trial at
which he was represented by counsel and he appealed,
arguing, inter alia, that his right to self-representation had
been denied. The Court of Appeals held that the trial court
had not denied the defendant's motion to repr esent himself
because the defendant had not taken a "clear and
unequivocal position on self-representation." Rather, the
court held that the defendant "forfeited his right to self-
representation by his vacillating positions which continued
until just six days before the case was set for trial." Id. at
51.

Buhl's situation is quite different. Buhl acquiesced to
counsel's role during the course of a hearing in which the
trial court affirmed its inclination to deny Buhl's motion to
proceed pro se on at least six different occasions. See App.

28
at 15, ll.2-4; App. at 18, ll.15-17; App. at 19, ll.3-5; App. at
24, ll.6-11; App. at 26, ll.21-24; App. at 37, ll.8-10. The
judge told Buhl that he could not appoint another defense
attorney, App. at 14, and later said:

My concern right now is . . . proceeding with this trial
rather than proceeding pro se. My inclination, and the
nature of the charges themselves (sic ) also the kind of
case we're dealing with here is not to allow Mr. Buhl to
proceed pro se [,] but to give him the right to put what
he wants to put on the record and lay it all out. I say
you can make motions [pro se].

App. at 24. Thus, Buhl had no choice but to pr oceed as the
court suggested.

THE COURT: That's the best I can do you, the answer
is not to go pro se. The answer is to communicate what
you want to me and put it on the record and make a
complete record for yourself and that's the best I can
do for you.

Id. at 26 (emphasis added).

The court clearly refused to allow Buhl to conduct his
own defense without the participation of counsel, and Buhl
acknowledged the procedure the court was going to allow,
but he then refused to participate in the trial. Webster's
Dictionary defines "vacillate" as: "1. to sway unsteadily. 2.
to shift back and forth between two courses of action."
Webster's Desk Dictionary of the English Language, 989
(1990 ed.). Buhl's response to the proposed hybrid
procedure is more accurately described as "submission"
than "vacillation" or "consent". Under these circumstances,
we can not conclude that Buhl waived his right to conduct
his own defense, or that he implicitly withdr ew his prior
request to do so.20 The trial judge parried Buhl's attempt to
proceed pro se, and counter ed by allowing Buhl the "choice"
_________________________________________________________________

20. See United States v. Goldberg, 67 F.3d 1092 (3d Cir. 1995) (clarifying
the concepts of waiver, forfeitur e and waiver by conduct in a case where
we considered whether a defendant had waived his right to counsel by
his abusive conduct). Notably, the right of self r epresentation may be
waived more easily than the right to counsel. See Dorman, 798 F.2d at
1367.

29
of full representation by defense counsel, or a hybrid
representation. Given Buhl's timely r equest to conduct his
own defense, that was not a choice that we can allow. See
also Williams, 44 F.3d at 101-102 (holding that a
defendant's "desire to exchange one mandatory counsel for
another . . . does not signify that he was abandoning his
Sixth Amendment right to have none").

Although a hybrid process such as the trial court
suggested may mitigate some of the effects of forcing an
attorney upon a defendant who has properly asserted the
right of self-representation, the pr ocedure the court
outlined is inconsistent with the core of the constitutional
right that Buhl was attempting to assert.

[T]he pro se defendant is entitled to preserve actual
control over the case he chooses to present to the jury.
This is the core of the Faretta right. If standby
counsel's participation over the defendant's objection
effectively allows counsel to make or substantially
interfere with any significant tactical decisions, or to
control the questioning of witnesses, or to speak
instead of the defendant on any matter of importance,
the Faretta right is eroded.

Second, participation by standby counsel without the
defendant's consent should not be allowed to destr oy
the jury's perception that the defendant is r epresenting
himself. The defendant's appearance in the status of
one conducting his own defense is important in a
criminal trial, since the right to appear pr o se exists to
affirm the accused's individual dignity and autonomy.

McKaskle v. Wiggins, 465 U.S. at 178 (footnote omitted).
See also Orazio v. Dugger, 876 F.2d 1508 (11th Cir. 1989).

In Orazio, the trial court denied a motion to proceed pro
se and defendant proceeded to trial r epresented by
appointed counsel. The Court of Appeals found that the
defendant's right of self-representation had been denied
even though the defendant did not renew his r equest to
waive counsel after counsel was appointed and the trial
began. The court concluded:

Petitioner's request to represent himself was denied. By
failing to repeat his desire to repr esent himself,

30
 petitioner did not vacillate on the issue. He did not
abandon his initial request, either. Brown v.
Wainwright, 665 F.2d 607, 611 (5th Cir. 1982). Orazio
is unlike the petitioner in Brown, who, before the court
even denied his motion for self-representation, asked
counsel to represent him. Orazio acquiesced in being
represented by counsel because his r equest to defend
himself had already been denied. T o avoid a waiver of
a previously-invoked right to self-repr esentation, a
defendant is not required continually to r enew a
request once it is conclusively denied or to make
fruitless motions or forego cooperation with defense
counsel in order to preserve the issue on appeal.
Moreover, in Brown, defense counsel represented to the
court that he and defendant had resolved their
differences. Here, the court's finding of a subsequent
waiver by defendant is unsupported by such conduct
and statements of the defendant and counsel.

Id. at 1512 (emphasis added) (internal citations and
quotations omitted). See also Lorick, 753 F .2d at 1299
(where trial judge failed to recognize right of self
representation at the outset, defendant's"subsequent
apparent acquiescence can only in fairness be taken as a
concession of his inability successfully to act on the right
asserted").

Here, the trial court denied Buhl's motion to proceed pro
se in no uncertain terms. The court then offered the
aforementioned hybrid procedure which afforded Buhl the
right to file motions and object to his attor ney's actions, but
did not permit Buhl to conduct his own defense in front of
the jury. Buhl did not formally object to the court's
suggestion, but his conduct is a far cry from vacillation or
waiver. See Orazio, supra. As the Court of Appeals for the
Eleventh Circuit has so aptly noted, the right of self-
representation "would be a weak right indeed" if a
defendant needed to "risk sanctions by the court to [uphold
it.]." Dorman, 798 F.2d at 1367. Accordingly, we hold that
Buhl did not waive or abandon his Sixth Amendment right
of self-representation by "consenting" to the court's
suggestion. The hybrid procedure the court afforded Buhl
deprived him of the core of his "Far etta rights." It is

31
irrelevant that "Buhl made of recor d several concerns,
challenged the indictment . . . , and stated he was unhappy
with his appointed counsel." Dissent at 41. His ability to
make such statements, put his objections on the r ecord,
and make motions out of the jury's hearing was not
consistent with preserving "the jury's per ception that [he
was] representing himself," and it is that perception that is
at the "core" of the right of self-r epresentation. McKaskle,
465 U.S. at 178 (1984).

Moreover, Buhl did not actually consent to the court's
suggestion at all. Rather, he refused to cooperate with
counsel or even be present during trial. It is ironic that his
refusal to cooperate with the hybrid pr ocedure that the
court afforded him is now viewed as also constituting a
waiver of his right to represent himself.

E. Buhl's Absence From the Trial is not a Waiver.

After the trial court denied several of Buhl's pro se
motions and required him to proceed with counsel, Buhl
told the judge that he did not want to sit thr ough his trial.
The judge then carefully inquired to make certain that the
decision was voluntary, he explained the possible
consequences of Buhl's absence, and made arrangements
for Buhl to return to the trial if he changed his mind. The
judge also explained the seriousness of the char ges and
asked Buhl if he understood. Buhl responded as follows:

I am not a dope, I realize I am going to be convicted
because I haven't be[en] able to to (sic ) prepare any
kind of defense.

* * *

I am not here to play bad man. I am telling you how
I feel about the situation. Any kind of recourse or
action I am going to get, it will be on the Appellate
level, not from this Court. I don't see that I should be
here for it. I waive my right to be her e for it. I rely on
the double jeopardy issues that I had just pr esented
and my previous ones and rights that I can continue as
my own attorney.

32
App. at 76-7. Thus, rather than relinquishing his right to
self-representation by absenting himself from trial, Buhl
was actually asserting his displeasure with his inability to
conduct his own defense. We certainly do not condone
Buhl's response to the trial court. However, our analysis is
not controlled by the wisdom or propriety of Buhl's
decision, nor by the manner in which he expr essed it.
Rather, we must inquire into whether his conduct was so
inconsistent with the right of self-repr esentation as to
result in a waiver of it. Clearly it was not. Rather, it was an
example of the very concern the Supreme Court expressed
in Faretta when discussing the importance of honoring a
defendant's properly asserted right to pr oceed pro se. The
Supreme Court stated: "To force a lawyer on a defendant
can only lead him to believe that the law contrives against
him." Faretta, 422 U.S. at 834.

The dissent relies upon McKaskle along with several
other cases in arguing that Buhl's conduct amounts to
vacillation and waiver of his 6th Amendment right of self-
representation. See Dissent at 40. However, a careful
examination of each of those cases reveals that they are
distinguishable, and to the extent that they apply to our
inquiry at all, they support the conclusion that Buhl's
rights were denied.

In McKaskle, the defendant was allowed to pr oceed pro
se, but standby counsel was appointed to assist. Both
before and during the trial, the defendant changed his
mind; sometimes objecting to counsel's participation, and
sometimes agreeing to it. Following his conviction he
argued that counsel's participation had unfairly interfered
with his ability to conduct his own defense. The Supreme
Court disgreed. It is important to note, however, that in
McKaskle, the defendant had filed a written r equest for
appointment of counsel in which he had rescinded an
earlier motion to waive counsel and proceed pro se.
Thereafter, the defendant filed thr ee additional motions for
appointment of counsel. However, when pr etrial
proceedings began, the defendant "announced that he
would be defending himself pro se." Id . at 172. The trial
judge allowed him to do so, however, the defendant
thereafter interrupted his own presentation of his defense

33
to consult with "standby" counsel during trial. The Court
concluded that the defendant had been affor ded all of the
rights he was entitled to under Faretta, and that the issue
was not the limits placed upon his participation in the trial
at all, "for there clearly were none[ ]." Rather the defendant
was really complaining about limits placed upon"standby
counsel's participation." Id. at 174. Those limits were
perfectly proper because the Far etta right is the
defendant's, not counsel's. "Accordingly, the Faretta right
must impose some limits on the extent of standby counsel's
unsolicited participation." Id. However , the instant appeal
does not implicate the role of "standby counsel." Here,
defense counsel was not acting in a "standby" role, he was
charged with conducting the defense, though Buhl was
allowed to make objections on the recor d, out of the jury's
presence. The Court in McKaskle stated:

[t]he pro se defendant must be allowed to control the
organization and content of his own defense, to make
objections, to argue points of law, to participate in voir
dire, to question witnesses, and to addr ess the court
and the jury at appropriate points in the trial. The
record reveals that [the defendant] was in fact accorded
these rights.

465 U.S. at 174. That is clearly not our case.

In Raulerson v. Wainwright,21 the defendant initially
requested to act as co-counsel during a status hearing prior
to sentencing, but the trial court denied that r equest. The
defendant then sent a letter asking to be allowed to proceed
pro se, but the court "did not immediately act on this
second request." 732 F.2d at 808. At the ensuing
resentencing hearing the court reconsider ed its prior ruling
and allowed the defendant to act as co-counsel based upon
a recent decision of a state appellate court upholding such
hybrid representation. "During the course of the hearing,"
id., the Florida Supreme Court reversed that decision, and
the trial court reacted by withdrawing its grant of hybrid
representation. "At this removal of co-counsel, [the
defendant] did not immediately renew his r equest to appear
pro se." Id. Thereafter, he requested permission to proceed
_________________________________________________________________

21. See dissent at 2.

34
pro se, and the trial court responded by initiating a Faretta
inquiry. However, the trial court "subsequently terminated
the hearing when [the defendant] abruptly walked out of
the courtroom." Id. On appeal, the defendant argued, inter
alia, that his constitutional right to self-r epresentation had
been denied. The Court of Appeals rejected that argument
and ruled that the defendant's decision to walk out in the
middle of the required Faretta inquiry constituted a waiver
of that right. Thus, Raulerson would only be helpful to our
analysis if Buhl's departure had prevented the trial court
from undertaking the required Far etta inquiry. A departure
under those circumstances may well have r esulted in a
waiver of his Faretta rights. Of course, that is not what
happened because no Faretta inquiry was ever attempted
here.

In Brown v. Wainwright, 665 F .2d 607 (5th Cir. 1982), as
the dissent concedes, Dissent at 40, the defendant
requested permission to conduct his own defense at trial
based upon his discontent with his attorney's efforts
and/or ability. A hearing was held on that motion, but the
court deferred ruling on the motion and instead, in
defendant's presence, asked defense counsel to see if
defendant's differences with his r epresentation could be
"worked out." Id. at 609. Ther eafter, "[e]ither at the hearing
or at some later point, counsel informed the court that he
and defendant had resolved their differ ences. He also stated
that defendant informed him he had changed his mind and
wanted counsel to continue his representation." Id. On
appeal, the defendant conceded that he "told counsel to
`stay on,' " though he argued he did so only after his
request to proceed pro se was denied. Id. at 609. In any
event, he did not renew his request to pr oceed pro se until
the third day of trial, after the close of the evidence. The
Court of Appeals held that defendant had waived his right
to represent himself by his conduct. "Defendant concedes
that at some point after the hearing on the motion to
withdraw he asked counsel to continue his r epresentation."
Id. at 611 (emphasis added). The court added that "the
finding of waiver is also supported by counsel's statement
to the court that he and defendant had worked out their
differences." Id.

35
Thus, it is not the analysis in Brown, but the court's
subsequent discussion of Brown in Orazio v. Dugger, 876
F.2d 1508 (11th Cir. 1989), that is most analogous to our
inquiry. As noted above, the court in Orazio was careful to
distinguish Brown, and the dissent's position as to waiver
is inconsistent with Orazio. Moreover , the court in Brown
was careful to limit and explain its holding, and the court's
explanation of the scope of its ruling under mines the
dissent's reliance on Brown. The court stated:

Our decision here should not be read to imply that a
trial court may unduly defer a ruling on a fir m request
by defendant to represent himself in the hopes that the
defendant may change his mind. . . . Neither should it
be read to indicate that a defendant, to avoid waiver,
must continually renew his request to represent himself
even after it is conclusively denied by the trial court.
After a clear denial of the request, a defendant need
not make fruitless motions or forego cooperation with
defense counsel in order to preserve the issue on
appeal.

Brown, 665 F.2d at 612 (emphasis added).

The dissent's reliance on United States v. Bennett, 539
F.2d 45 (10th Cir. 1976) is also unpersuasive. As noted
above, there, as in McKaskle, a defendant insisted upon
acting as co-counsel and then continually vacillated
between allowing defense counsel to conduct his defense,
and participating with co-counsel in the kind of hybrid
defense that a defendant clearly is not entitled to under the
Constitution.22 Buhl never sought to act as co-counsel, and
he never requested substitute counsel. He sought only to
act as his own counsel, and his decision to abruptly leave
the proceedings did not, in any way, under mine his effort
to represent himself. In fact, he waived his presence at trial
because he was unable to represent himself.

We do not disagree with the dissent's assertion that Buhl
faced " `overwhelming' evidence," dissent at 41, or with the
_________________________________________________________________

22. See McKaskle, 465 U.S. at 182 ("Faretta does not require a trial judge
to permit `hybrid' representation of the type [the defendant] was actually
allowed.").

36
New Jersey Appellate Division's conclusion that the record
"shriek[ed] of [Buhl's] guilt." State v. Buhl, 635 A.2d at 565.
That, of course, is not the issue. Our analysis her e is driven
by the legal principles that arise from Far etta. We are not
called upon to assess the quality or quantity of the
evidence.

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. The right is
either respected or denied; its deprivation cannot be
harmless.

McKaskle, 465 U.S. at 177 (emphasis added). By the same
token, we are not oblivious to the force of the evidence
against Buhl, nor the cruelty and wantonness it
establishes. However, as judges we must simply determine
whether his right to conduct his own defense was"either
respected or denied," and we hold that it was denied. That
denial was not merely a "trial error;" rather, it was a
"structural defect [that] affect[ed] the framework within
which the trial proceed[ed]." Arizona v. Fulminante, 499
U.S. 279, 309-310 (1991). "The existence of such defects
. . . requires automatic reversal of the conviction because
they infect the entire trial process." Brecht v. Abrahamson,
507 U.S. 619, 629-630 (1993) (employing the categorization
used previously by the Court in Arizona v. Fulminante,
contrasting "trial errors" with "structural defects in the
constitution of the trial analysis").

If a defendant seeks to represent himself and the court
. . . denies his . . . request[ ], the government is not
entitled to an affirmance of the conviction it
subsequently obtains. To the contrary, the defendant is
entitled to reversal and an opportunity to make an
informed and knowing choice.

Hernandez, 203 F.3d at 625.

F. CONCLUSION.

Therefore, for the reasons set forth herein, we hold that
Buhl's Sixth Amendment rights were not adequately

37
protected. Before concluding, however , we pause to
comment upon the trial judge's stewardship of Buhl's trial.
Despite our holding, it is evident that the trial judge here
was attempting to be scrupulously fair, and that he did his
best to afford Buhl a fair trial despite the horrendous
nature of the crimes Buhl was charged with, and the weight
of the evidence of his guilt. As noted above, the crimes Buhl
was accused of were as vicious as they wer e dastardly. Yet,
the trial court even relaxed the formal rules of procedure to
insure that Buhl could bring his objections to the trial
court's attention.23 We do not intend our analysis to in any
way detract from the noteworthy efforts of the trial judge to
protect Buhl's constitutional rights or to uphold the dignity
of Buhl's victim, and afford her some measure of closure by
expeditiously bringing this matter to trial.

Nevertheless, for the reasons set forth above, we can not
affirm the district court's denial of Buhl'sS 2254 petition
without ignoring the teachings of Faretta and its progeny.
We must, therefore, vacate the district court's denial of the
writ of habeas corpus and remand with instructions that
the district court issue a writ of habeas corpus r eleasing
Buhl from custody on these charges24 conditioned upon
Buhl being retried within 120 days of the date of the
district court's order.25
_________________________________________________________________

23. The court told the defendant:

I don't care whether you send a motion in. Y ou know sometimes . .
.
pro se motions are . . . filed with the Clerk's office and what
happens it's stamped non-conforming. . . .

* * *

Put this big stamp on it because you did not supply an order, cross
every T and dot every I. I'm not interested in that. I'll handle
the
filing of motions. I don't care whether it's conforming or not and
I
can do that.

App. at 25.

24. As noted above, any such release, if or dered, will not affect Buhl's
custody as he must still serve the sentences of life imprisonment as
noted above. See supra at n.1.

25. If the State elects to retry Buhl on the charges underlying the
convictions in this case despite his remaining sentence of life
38
SCIRICA, Circuit Judge, dissenting.

I would affirm the denial of Buhl's habeas petition. The
record demonstrates Buhl did not clearly or unequivocally
waive his right to counsel and invoke his right to self-
representation. Buhl mooted his self-r epresentation request
by accepting the trial court's hybrid repr esentation
proposal, and thereafter waived any right to self-
representation by refusing to attend and participate in his
trial.

Buhl twice raised the possibility of self-repr esentation.
Shortly before trial, Buhl filed a written motion to dismiss
his attorney and represent himself, on which the trial court
held a hearing. The trial court's conclusion that Buhl's
request was motivated by his dissatisfaction with his
appointed attorney was no more than a confirmation of
what Buhl repeatedly told the court, both in the affidavit he
filed in support of his motion1 and throughout the hearing.
At the hearing, the court confirmed the basis for the motion
by asking Buhl, "Essentially, what your [sic] saying is
incompetency of counsel, am I right?" Buhl answer ed, "Yes,
your Honor." (Tr. of 1/22/91 hearing at 4.) Buhl's answer
was clear and unequivocal.2 Based on that clear answer,
and on the court's ensuing detailed discussion with Buhl,
I agree with the New Jersey Appellate court (as did the
District Court) that "it became apparent almost at the
outset that [Buhl's] principal complaint pertained to his
attorney's alleged incompetence." State v. Buhl, 635 A.2d at
_________________________________________________________________

imprisonment, Buhl must once again affirmatively request to proceed pro
se if he still wishes to do so. Following any such a request, the court
must conduct an appropriate inquiry under Faretta as detailed in Welty.
Absent a request to proceed pro se Buhl will be entitled to representation
of counsel at any retrial.

1. In his affidavit, Buhl "expressed dissatisfaction with his lawyer's
work
and claimed the lawyer was incompetent." State v. Buhl, 635 A.2d 562,
570 (N.J. Sup. Ct. App. Div. 1994).

2. The majority concludes that Buhl's answer was not a sufficient basis
for the trial court's actions, reasoning that"nearly every request to
proceed pro se will be based upon a defendant's dissatisfaction with
counsel." I disagree; some requests may be merely attempts to delay
trial. I see no reason to question the sufficiency of Buhl's answer.

39
570. Buhl continually justified his motion with complaints
about how his appointed counsel was handling the case.
Buhl never indicated he still would want to r epresent
himself if he were satisfied with counsel.

Having confirmed the basis for Buhl's motion, the trial
court proposed a remedy: a hybrid for m of representation
in which appointed counsel would continue to r epresent
Buhl, but Buhl would be allowed to make his own motions
and to put on record any disagreements with his appointed
counsel's handling of the case. Buhl stated that he
understood the proposal, and he immediately consented to
it by spending the remainder of the hearing discussing pre-
trial issues with the court and his appointed counsel.
Buhl's willing acceptance of the hybrid repr esentation
(which the majority characterizes as "submission") was
tantamount to a withdrawal of the self-repr esentation
request. See McKaskle v. Wiggins, 465 U.S. 168, 182 (1984)
("Even when he insists that he is not waiving his Faretta
rights, a pro se defendant's solicitation of or acquiescence
in certain types of participation by counsel substantially
undermines later protestations that counsel interfered
unacceptably;" stand-by counsel's participation did not
violate defendant's right to proceed pr o se); Raulerson v.
Wainwright, 732 F.2d 803, 809 (11th Cir. 1984) (defendant
waived his self-representation when he voluntarily walked
out of his Faretta hearing); Brown v. Wainwright, 665 F.2d
607 (5th Cir. 1982) (en banc) (defendant waived his self-
representation request when, after hearing on pro se
motion, he asked counsel to "stay on," counsel informed
court he and defendant resolved their dif ferences, and
defendant did not renew self-representation request until
after close of evidence); United States v. Bennett, 539 F.2d
45 (10th Cir. 1976) (defendant forfeited right to self-
representation by vacillating on r epresentation issue until
six days before trial). Buhl's ability to make and file pro se
motions and to make of record any objections and
arguments make the situation materially dif ferent from that
in Faretta, where the defendant was specifically precluded
from filing pro se motions and acting as co-counsel along
with appointed counsel. See Faretta v. California, 422 U.S.
806, 808 (1975).

40
The majority also holds the trial court failed to conduct
a proper Faretta inquiry. But in or der to invoke his right to
self-representation and trigger the need for a full Faretta
inquiry, Buhl was required to make a clear and unequivocal
request to proceed pro se. Far etta, 422 U.S. at 835
(defendant must "clearly and unequivocally" indicate
intention to proceed pro se). Buhl's r equest was not clear
and unequivocal, because he willingly accepted the hybrid
representation proposal (or at the very least, vacillated in
his request to proceed pro se). Accor dingly, the trial court
was not obligated to conduct any further inquiry.

The majority suggests that Buhl's acceptance of the
hybrid representation proposal should not be interpreted as
a withdrawal of the self-representation r equest because
Buhl would have "risked sanctions" by doing otherwise.
Nowhere does the record indicate the trial court considered
or threatened sanctions if Buhl rejected the proposal.
Moreover, I see nothing in the r ecord indicating the trial
court coerced Buhl into accepting the pr oposed hybrid
representation. At least six times during the hearing, the
trial court specifically asked Buhl whether he understood
the proposed resolution. Each time, Buhl r esponded he did.
The record portrays a legally sophisticated defendant
familiar with and acting to manipulate the pr ocess because,
as noted by the New Jersey appellate court, he faced
"overwhelming" evidence against him and a r ecord that
"shriek[ed] of [his] guilt." State v. Buhl, 635 A.2d 562, 565
(N.J. Sup. Ct. App. Div. 1994).

The circumstances of Buhl's second request to proceed
pro se confirm Buhl suffer ed no constitutional violation
(and distinguish this case from those on which the majority
relies). On the day of trial, consistent with the hybrid
representation arrangement, Buhl made of r ecord several
concerns,3 challenged the indictment on the ground that it
had been improperly amended, and stated he was unhappy
with his appointed counsel and wished to repr esent himself
at trial.4 The court denied Buhl's request to proceed pro se.
_________________________________________________________________

3. For example, Buhl claimed he was never given a warrant and never
formally charged. He also discussed witness issues with the court.

4. I disagree that Buhl's second self-r epresentation request was timely.
Buhl's morning-of-trial request came after he had already been granted

41
Buhl then made (through appointed counsel) a r ecusal
motion. That motion also was denied. The jury then was
impaneled, after which Buhl, pro se, again moved to
dismiss the indictment on double jeopardy gr ounds, moved
for mistrial on the ground of juror pr ejudice, and objected
to the presence of uniformed corr ectional officers in the
courtroom. The court noted all of Buhl's objections, but
indicated the trial would proceed. At that point Buhl stated
he did not wish to be present during the trial. The court
advised Buhl of his right to be present for the trial, warned
of the implications of Buhl's refusal to be pr esent, and
confirmed that Buhl's decision was voluntary. Buhl
responded, "Any kind of recourse or action I am going to
get, it will be on the Appellate level, not fr om this Court. I
don't see that I should be here for it. I waive my right to be
here for it."

Rather than a mere "assertion of displeasur e," Buhl's
words and actions constituted a waiver. Buhl's waiver --
and the opportunities provided to him to make motions,
arguments, and objections of recor d -- compels the
conclusion that he was not deprived of his constitutional
right to appear pro se. See Raulerson v. W ainwright, 732
F.2d 803, 809 (11th Cir. 1984) (self-r epresentation request
_________________________________________________________________

one trial continuance to allow him to continue to pr epare for trial. As
both the New Jersey Appellate court and the district court concluded,
granting Buhl's second request on the mor ning of trial would have
unduly delayed the trial. See Dist. Ct. Op. at 13; State v. Buhl, 635 A.2d
at 571-72. That Buhl's last-minute self-repr esentation request came
after an earlier request with resulting one-month continuance and
permission to file pro se motions, and on the heels of several denied
dismissal motions, strongly suggests Buhl's r equest was intended merely
for delay. Thus, Buhl's situation differs fr om those in Virgin Islands v.
Charles, 72 F3d 401 (3d Cir. 1995) and Virgin Islands v. James, 934
F.2d 468 (3d Cir. 1991), in which morning-of-trial pro se requests were
allowed. Those cases did not specifically addr ess the timeliness issue,
did not appear to have involved trials that had alr eady been continued,
and do not reflect determinations by the trial courts that granting the
last-minute requests would have substantially delayed the trials.
Moreover, there is no basis for the majority's view that Buhl's second
request can somehow "relate back" to his first request for purposes of
determining timeliness.

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waived when defendant walked out of courtroom in the
midst of a Faretta hearing; "The defendant's behavior on
this occasion convinces us that he was not deprived of his
constitutional right to appear pro se.").

For these reasons, I respectfully dissent.

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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