Jones v. Walker

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Aug. 20, 2008
No. 04-13562
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00562-CV-JOF-1

MELVIN C. JONES,

Petitioner-Appellant,

versus

VICTOR WALKER,

Respondent-Appellee.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(August 20, 2008)

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, BIRCH,
DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and
PRYOR, Circuit Judges.

BLACK, Circuit Judge:
 In August 1996, Petitioner-Appellant Melvin Jones was convicted in

Georgia state court of felony murder and cruelty to a child, in connection with the

death of his infant daughter. On February 28, 2003, Jones filed a petition for a

writ of habeas corpus under 28 U.S.C. § 2254, contending he was forced to

represent himself at trial in violation of his Sixth Amendment right to counsel.

The district court denied the petition, but a panel of this Court reversed. We

granted en banc review to determine whether Jones validly waived his right to

counsel.

Reviewing Jones’ claim de novo, we conclude Jones voluntarily waived his

right to counsel. Moreover, because he failed to meet his burden of proving the

waiver was unknowing, we conclude Jones is not entitled to habeas relief.

Therefore, we affirm the judgment of the district court.

I.

On July 25, 1995, Melvin Jones’ three-month-old daughter, Jennifer

Andrews, died while in her father’s care. An autopsy revealed her death was

caused by a subdural hematoma, resulting from blunt force trauma to her head and

face.

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 Several months later, Jones was indicted for felony murder and cruelty to a

child, and experienced public defender Claudia Saari was appointed to represent

him. Trial was set for March 25, 1996.

A. Jones Rejects Assigned Counsel for the First Time

From the beginning, Jones took issue with Saari’s management of his case,

and on February 8, 1996, he moved for new counsel. In a written order, the trial

court denied the motion without hearing, explaining:

Although Defendant is entitled to counsel, he is not entitled to
counsel of his own choosing. The Court has already informed
Defendant of this fact when he previously requested private counsel
be appointed. Ms. Claudia Saari of the DeKalb County Public
Defendant’s Office is well-qualified to represent the Defendant, and
the Court is satisfied with her representation.

One month later, Saari requested a hearing to address the question of

representation; on March 14, 1996, a hearing was convened. When Saari

explained that Jones was expressing dissatisfaction with her representation, the

court turned to Jones and stated simply: “[I]t’s your call. She’s either your lawyer

or you don’t have one.”

Not satisfied with the court’s response, Jones argued:

Jones: Your Honor, it seems to me that under the Constitution it
guarantees me the right to have a sufficiency of counsel
all through the proceedings. I’m not waiving this right to

3
 have counsel assist me. I just do not want her because
she’s ineffective assistance.

I am not proceeding for myself. I do wish to have
counsel assist me throughout—

Court: You’re going to have either her or represent yourself. So
you can make up your mind which one you want to do.
She is a fine lawyer. She got a guy out of a death penalty
case recently up here. And I am not going to let you
dictate to me who your lawyer is. You’re entitled to a
lawyer, I have furnished you a lawyer, and I furnished
you a fine lawyer, and that’s it.

Despite the court’s admonition, Jones continued to debate Saari’s merits as

counsel.

The court was not swayed:

Court: . . . I’m not going to argue anymore with you. She is
your lawyer, or you don’t have a lawyer. It’s that simple.

Jones: Well, I’d just like the record to reflect that I’m not
refusing my—I’m not waiving my right to have counsel
assist me—

Court: All right. Let the record reflect—

Jones: —and I am not—

Court: —that I am going to relieve Ms. Saari, if that’s what you
want to do.

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The exchange between the court and Jones continued in this vein, with the court

insisting it would not appoint another lawyer, and Jones insisting he was not

waiving his right to counsel:

Court: [Y]ou can figure out what you want to do. If you don’t
want her to represent you, you’re not going to have a
lawyer.

Jones: Well, I’m not waiving my right to have counsel assist
me, and I’m not proceeding pro se. I do not wish to
proceed pro se.

Court: She’s your lawyer, or you’re not going to have a lawyer.
It’s that simple.

Jones: Your Honor, unless you force me to proceed with
ineffective assistance, you know, I do not—you know
what I’m saying, I do not wish to proceed with her—

Court: All right.

Jones: —And I do not wish to proceed pro se.

Court: Well, you’ll be pro se. If you don’t want her you’re
going to be pro se.

A short time thereafter, Jones’ mother arrived in court. In Jones’ presence,

the judge spoke to her at length, explaining the situation and asking her to talk to

her son about accepting Saari’s representation. The judge emphasized Saari’s

qualifications, stating:

5
 I’ve appointed him a lawyer. She is a fine lawyer. She’s recently
tried a death penalty case up here and got the guy out of the death
penalty. For some reason he doesn’t want her to represent him. And
I don’t have any choice, I’m required to furnish him a lawyer. I’ve
furnished him a fine lawyer, and apparently he doesn’t want her. So
he’s either going to have her as his lawyer or he’ll have to represent
himself. I’ve tried to explain that to him umpteen times, and I cannot
get through to him. So he decided this morning that he’d rather
represent himself, I gather, than having [sic] Ms. Saari to represent
him.

So I thought maybe you might could talk to him or something. If I
were charged with a crime myself, I don’t know of anybody I’d prefer
to have represent me more than Ms. Saari.

The court urged Jones’ mother to speak with her son about his decision;

however, Jones would have none of it. After renewing his barrage of complaints

against Saari, Jones engaged in the following exchange with the court:

Jones: I’m not waiving my right to have counsel assist me, but I
do not want ineffective assistance, and I did want the
record to reflect that.

Court: You don’t want Ms. Saari? Just tell me that.

Jones: I’m not waiving—I’m not waiving my right to have
counsel—counsel assist me.

Court: Well, you’re either going to have her or you’re not going
to have her, and you’re going to make that decision.

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Instead of making his decision, Jones continued providing unresponsive statements

critical of his lawyer. When the judge had heard enough, he turned to Saari,

stating:

Well, I’m tired. I’ve been wrestling with him I don’t know how long.
I’m going to send—if he don’t want you, you just don’t represent him,
that’s all there is to it.

And with that, Saari was discharged.

Trial was rescheduled for May 25, 1996.

B. Jones’ Change of Heart

On May 13, 1996, Jones had a change of heart, and wrote to the court asking

to have Saari reappointed to his case. In his letter, Jones explained:

I’m writing to let you know that I have talked with Ms. Saari and we
have come to an agreement. Your Honor I am not totally equipt [sic]
to defend myself, being unfamilliar [sic] with the rules of evidence.
I’m not saying that I agree with every choice she has made in my case,
but I do hope she will avoid any futher [sic] conflict. Because I’m left
no choice I do [sic] wish to proceed with Ms. Saari instead of
proceeding alone. Your Honor with all do [sic] respect I do hope that
you will allow Ms. Saari to proceed to trial with me.

The court granted the request, Saari was reappointed, and the trial was again

rescheduled, this time for August 19, 1996.

From May until August the case proceeded without incident. Then, in early

August, Jones again began complaining about the quality of Saari’s representation.

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On August 8, 1996, a second hearing was convened before the district court. At

that hearing, Jones challenged Saari’s decision not to call as witnesses his

nine-year-old cousin and a medical expert whose cause of death determination

differed only slightly from the testimony of the Government’s expert witness.

Saari, in turn, objected to Jones’ attempts to dictate trial strategy:

Mr. Jones had requested that I do certain things, in particular file a
motion to suppress his statement [to the police]. . . . I informed him at
that time that I would not do anything or suppress anything if I felt
that it was going to help his case, and likewise I would not do
anything, even if he requested it, that I felt might hurt his case. I
explained to him that I will certainly always listen to his opinions, but
when it comes down to what sort of motions [sic] file, when it comes
down to the trial of this case, that is where my education, my
experience come into play, and those are the kind of decisions that I’ll
be making. His decisions are if he wants to plead guilty or not guilty,
if he wants a jury trial, if he wants to testify. Those are all of his rights
to make that decision [sic], but anything else I would make the
decision on whether or not to file a motion to suppress evidence that I
think might help his case.

After exploring Jones’ complaints and determining Saari was handling the

case responsibly, the judge once again offered Jones two options:

[Y]ou’re going to do one of two things. You’re either going to have
her to represent you or you’re going to represent yourself. Now,
you’re going to have to figure out what you’re going to do, and you’re
going to have to decide it today.

8
 Jones continued to argue his lawyer was incompetent and had a conflict of

interest that prevented her from representing him properly. The exchanges between

the trial judge and Jones mirrored those at the March 14 hearing, and reveal the

court’s mounting frustration with Jones’ obstinance:

Jones: Your Honor, would you proceed in a murder trial without
an attorney that is acting in your best interest?

Court: Well, that’s up to you. You’ve got the choice. You’ve
got the choice.

Jones: Why are you—

Court: I don’t have to argue with this man.

Jones: I’m not arguing.

Court: I don’t have to argue with this man.

Jones: Your Honor, I’m not arguing.

Court: Do you want her to represent you or not? I’m sick and
tired of hearing you go over and over and over this stuff.
There’s no way this lady can tell you she can get you off.
She’ll do the best she can to get you off.

Jones: . . . I have not, you know, required that she get me off.
I’m just requiring that she do what’s in my best interest.

Court: Well, she’s trying to do what’s in your best interest.

Jones: How can she know what’s in my best interest?

9
Court: Because she’s a seasoned attorney and she knows what
the law is about and how it should be handled in your
defense.

* * * *

[C]ommon sense says you’re going to have her or you’re
going to represent yourself. Now, that’s the last time I’m
saying that.

Jones: So, in other words, I’m being—I’m being forced to trial
without an attorney?

Court: That’s up to you. You’re the one forcing yourself.

Jones: Well, I’m not forcing myself. And I want the record to
reflect that I have not waived my right to have an attorney
to assist me, an effective attorney who will—

Court: . . . . Do you not want this woman to represent you?

Jones: I want an attorney.

Court: Do you want this woman to represent you?

Jones: I want an effective—

Court: Do you want this woman to represent you?

Jones: I want an effective attorney.

Court: Do you want this woman to represent you?

Jones: No, sir.

Court: All right. [To Saari] You are relieved of the case.

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 . . . . [To Jones] You’re making a horrible mistake. But
that’s your business.

C. Jones Proceeds to Trial Alone

Almost immediately after his lawyer was discharged, Jones requested

another continuance, which the trial court denied. In a written motion filed August

15, 1996, Jones renewed his request for a continuance, asking for more time to

subpoena witnesses and “resubmit motions which were abandoned by [his]

previous counsel.” In his motion, Jones argued that because he lacked “the skills

of a licensed attorney,” he should be given “additional time to prepare his defense.”

In the weeks leading up to trial, Jones filed several more motions requesting,

among other things, the disclosure of the criminal records of all proposed

Government witnesses, a bar on the admission of “other acts” evidence, and a

Jackson-Denno hearing on the admissibility of his July 25, 1995 confession.

At Jones’ request, the court conducted a pre-trial motion hearing on the

admissibility of the Government’s “similar transaction evidence” and the

admissibility of Jones’ confession to police. The challenged evidence was all

deemed admissible. (After trial, Jones asserted he lost these challenges because, as

a pro se litigant, he lacked the “skill and knowledge” necessary to prevail on his

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claims that the evidence was obtained in violation of his Fourth and Fifth

Amendment rights.)

Trial commenced August 20, 1996, with Jones representing himself. On the

morning of trial, Jones renewed his motion for a continuance:

Jones: Basically, I would like to say that it was, you know, it was
not my idea to proceed without counsel. But since I am
being forced to proceed without counsel, I am requesting
a continuance, Your Honor, so I can prepare for the case.
. . . I ain’t been given no time to prepare.

* * * *

Court: I will deny the motion for a continuance. Chambers
versus State, 213 Georgia Appeals 414, says that a
defendant will not be permitted to use the discharge of
counsel and employment or appointment of another as a
dilatory tactic in postponing or avoiding trial of the issue.
This case was set back in May, was it not, Mr. McDaniel?

Prosecutor: Yes, it was.

Court: He fired Ms. Saari in March, as I recall. Then in May,
right before trial, he re-hired her. And then right before
the trial—so I had to continue it at that time for Ms. Saari.
Then we specifically set it for today and he’s fired Ms.
Saari again. So we will proceed.

Jones participated actively in the three-day trial, examining and cross-

examining witnesses, raising objections, and moving for a “directed verdict” at the

12
close of the Government’s evidence. On August 22, 1996, after less than one hour

of deliberation, the jury returned a verdict convicting Jones of all counts charged.

Jones was later sentenced to life imprisonment.

D. Motion for a New Trial

Following trial, counsel was appointed to assist Jones on appeal. On

September 6, 1996, Jones’ lawyer moved for a new trial, raising several challenges

to Jones’ conviction, including claims that Jones was denied his right to counsel in

violation of the Sixth Amendment and the Georgia Constitution.1 On February 9,

2000, almost three years later, the district court convened a hearing on the motion.2

At the hearing, Jones’ appellate counsel made the following argument:

To establish the waiver, the Judge must investigate as long and as
thoroughly [sic] the circumstances of the case before him demands.

* * * *

The waiver must be made with an apprehension of the nature of the
charges, statutory offenses 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 matter.

1
Under Georgia law, a criminal defendant may file a motion for a new trial before
pursuing a direct appeal. See O.C.G.A. § 5-6-36; O.C.G.A. 5-6-38(a).
2
After moving for a new trial on September 6, 1996, Jones’ appellate counsel took no
further action on Jones’ appeal. When Jones brought the still-pending motion to the trial court’s
attention, the court appointed new appellate counsel and scheduled the February 9, 2000
evidentiary hearing.

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Counsel argued that because the trial court had failed to apprise Jones of these

facts, the waiver was invalid.

In response to counsel’s argument, the trial court asked the prosecutor to “get

Ms. Saari to come over” to the courtroom to tell him “how many times she [had]

told [Jones] what his punishment could be.” When Saari arrived in the courtroom a

short time later, the trial judge began by questioning her regarding her memory of

Jones’ case:

Court: Do you happen to remember a gentleman named Mr.
Melvin Jones?

Saari: I remember the name, and I remember a little bit about the
case. I may not remember all of the details since it was
years ago.

Court: For some reason you all went back and forth several
times.

Saari: I do remember that, Judge.

* * * *

Court: All I wanted to know is did he understand what his
penalty was if he was convicted[?]

Saari: Yes, he certainly did.

Court: That’s all I wanted to ask. Did you go over that more
than once with him?

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 Saari: Sure. This was a murder case. And I explained, as I do
with all of my murder clients, what the possible penalties
are and that it was a life sentence. He certainly
understood that this was a serious, serious charge.

After the trial judge finished questioning Saari, Jones’ counsel asked Saari

about various procedural details of the case. Saari responded that she did not

“remember specifics about [Jones’] case and the evidence in the case.” When the

topic turned to the subject of Jones’ waiver of counsel, the following exchange

occurred:

Counsel: The issue here this morning was was there a knowing and
intelligent waiver on the record of his lawyer.

Saari: You know—and I can’t—I don’t remember specifically
the words that he said. I do know that we went back and
forth on this. He very clearly knew what his options
were. They were described by the Court. Not only the
Court, but I did.

And I even explained it to him that you understand you
cannot—you don’t have the right to pick and choose who
your lawyer is, I know how to do my job, I’ve got an
independent expert review on his case. And he
understood exactly what was going to happen.

Counsel: This understanding that he had, were any of these
understandings placed on the record?

Saari: You’ll have to refer to the record. I do not remember
what was placed on the record and what was not on the
record.

15
 I know that we did have a couple of hearings I thought
before the Judge and before the Court. He had an
opportunity to talk about why he didn’t want me as his
lawyer.

And the Judge was talking to him about what would
happen if he did not want me as his lawyer. I do
remember being in court. I don’t know how many times.
I remember the March hearing.

After eliciting from Saari a list of the advantages she could have provided

Jones had she represented him at trial or served as his standby counsel, Jones’

lawyer continued:

Counsel: [D]id you request that the waiver, if any, of Mr. Jones’
right to counsel be placed on the record?

Saari: I don’t recall.

Counsel: Do you recall if the things you testified to before about
Mr. Jones knowing the maximum punishments, issues in
mitigation, possible defenses, if that information was
placed on the record at the time?

Saari: We’d have to refer to the record because I do not
remember exactly what transpired at those hearings in
detail.

Jones’ counsel did not ask Saari, and she did not volunteer, any information

regarding whether she had spoken with Jones about the dangers of representing

16
himself at trial or whether, from her conversations with him, she had reason to

believe he understood those dangers at the time he waived his right to counsel.

As Jones’ lawyer finished questioning Saari, the trial judge commented:

. . . I tell you I got so exasperated I did everything but get down on
my hands and knees and plead with him to let Ms. Saari handle his
case.

Jones’ counsel agreed with the court’s characterization of the atmosphere at the

August 8, 1996 hearing:

Counsel: Judge, on the August date going through the transcript it
is obvious that everyone involved in that case was
exasperated. Everything was tense. You can
tell—usually it’s a cold transcript, and you can’t tell
what’s going on.

But you can tell by reading the transcript that the tensions
were high and that the tempers were flaring, that there
was acrimony between the lawyer and the client, between
the client and the Court.

Court: There certainly was because he certainly just about wore
everybody out around here.

Counsel: And our argument this morning is that unfortunately the
side affect [sic] of what was going on that morning [was]
that the proper waiver was not placed on the record.

Court: Well, we’ll just have to let the appellate Courts decide
that.

17
 After Saari testified, Jones was called to the stand by his own counsel. Jones

described his relationship with Saari as a troubled one, and catalogued his

complaints regarding her handling of his case. When Jones’ lawyer questioned

whether Jones had asked for a new lawyer in order to delay his trial, Jones

answered: “No, sir. I never asked for another attorney by name. I only asked that I

had been [sic] given an attorney different from her. I didn’t want Ms. Saari to

represent me.” During his testimony, Jones was not asked and did not volunteer

any information regarding whether Saari had spoken with him before trial about the

dangers of self-representation, whether anyone else had discussed the subject with

him, or whether he understood the dangers of self-representation at the time he

waived his right to counsel.

On cross-examination, the Government pressed Jones regarding his

understanding of the law not only before, but during trial:

Gov’t: Mr. Jones, you understood the choice though, if you
didn’t have Ms. Saari, you had to represent yourself?
Didn’t you understand that?

Jones: [No response.]

Gov’t: Is that a yes?

Jones: Yes.

* * * *

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Gov’t: [Y]ou felt comfortable that you could handle this case
yourself, didn’t you?

Jones: No.

Gov’t: You did an opening, didn’t you?

Jones: It was required to be done.

Gov’t: You cross-examined witnesses, didn’t you?

Jones: It was required to be done.

Gov’t: You made objections, correct?

Jones: It was required.

* * * *

Gov’t: And you moved for a mistrial when some evidence came
in that you thought shouldn’t have come in, didn’t you?

Jones: Yes.

Gov’t: You were handling things, weren’t you?

Jones: The best that I could.

Gov’t: And you never said, Judge, stop, I want Ms. Saari back,
did you?

Jones: No. Because I wasn’t going to accept Ms. Saari back. I
didn’t want Ms. Saari back.

Gov’t: I understand. But you knew what your options were, Ms.
Saari or yourself, right?

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 Jones: Yes.

Jones also admitted to reading “law books” prior to trial.

In an order dated February 25, 2000, the trial judge denied Jones’ motion for

a new trial, finding Jones had “acknowledged an ongoing dialogue with his

appointed counsel about representing himself” and had “acknowledged that he

fully understood that if he rejected appointed counsel, he would have to represent

himself.” Georgia v. Jones, Case No. 95CR4769-6, Order Denying Motion for

New Trial, at 3 (Ga. Superior Ct. Feb. 25, 2000). The court concluded Jones’

attempt to discharge counsel was a dilatory tactic which constituted “the functional

equivalent of a knowing and voluntary waiver of appointed counsel” under Georgia

law. Id. at 3 (quoting Bryant v. State, 268 Ga. 616, 617, 491 S.E.2d 320, 322

(1997)).

E. Direct Appeal

On direct appeal, Jones continued to assert his Sixth Amendment rights had

been violated by his forced self-representation at trial.3 The Georgia Supreme

Court disagreed and affirmed Jones’ conviction, explaining:

3
Jones raised several other challenges to his conviction as well, including claims that the
court erred when it (1) refused to appoint substitute counsel; (2) failed to instruct the jury on the
lesser offenses of felony or misdemeanor involuntary manslaughter; and (3) allowed the
introduction of untimely-disclosed similar transaction evidence. Georgia Supreme Court Case
No. SOOA1387, Appellant’s Brief at 8.

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 The trial court was authorized to find that Jones set forth no justifiable
basis for dissatisfaction with the public defender and, therefore, that he
“was attempting to use the discharge and [appointment] of other
counsel as a dilatory tactic, which was ‘the functional equivalent of a
knowing and voluntary waiver of appointed counsel.’” . . .
Furthermore, the public defender testified that she made Jones fully
aware of the nature of the charge, the possible sentences, and the
dangers of self-representation. According to Jones’ own testimony, he
completely understood that, if he rejected appointed counsel, he would
have to represent himself. The trial court endeavored to convince
Jones to accept the public defender, informing him and his mother
about his right to counsel and the qualifications of the public defender.
Under all the circumstances, we conclude that Jones knowingly and
intelligently waived his right to counsel after he was made aware of
the dangers of self-representation.

Jones v. State, 272 Ga. 884, 886, 536 S.E.2d 511, 513 (2000) (internal citations

omitted).

F. State and Federal Habeas Proceedings

After his conviction became final on direct appeal, Jones filed a state habeas

petition reasserting his original Sixth Amendment claim and adding to it a claim

that his appellate counsel had been ineffective. The petition was denied in October

2001, and the Georgia Supreme Court denied Jones’ request for permission to

appeal.

Having exhausted his state postconviction remedies, on February 28, 2003,

Jones filed a petition for a writ of habeas corpus in the United States District Court

for the Northern District of Georgia. In his petition, Jones argued his Sixth

21
Amendment rights had been violated when he was forced to represent himself at

trial and when his appellate lawyer failed to adequately research his case during his

direct appeal. Finding no clear error of law or fact in the Georgia state courts’

resolution of Jones’ claims, the district court denied the habeas petition on June 8,

2004.

On appeal, a unanimous panel of this Court reversed and granted the

petition, concluding Jones’ Sixth Amendment rights had been violated because he

had “not ‘clearly and unequivocally’ assert[ed] his desire to waive counsel and

proceed pro se.” Jones v. Walker, 496 F.3d 1216, 1231 (11th Cir. 2007). We

granted en banc review to determine whether Jones validly waived his right to

counsel and, if not, whether he is entitled to habeas relief under 28 U.S.C. § 2254.

II.

Under the Sixth Amendment, criminal defendants are entitled to the

assistance of counsel during all critical stages of the criminal justice process. Iowa

v. Tovar, 541 U.S. 77, 80-81, 124 S. Ct. 1379, 1383 (2004). Arguably, the most

complex of these stages is trial, where advocates question witnesses, introduce

evidence, argue to the jury, and make myriad strategic decisions. As a result of the

technical skill trial demands, “[i]t is undeniable that in most criminal prosecutions

22
defendants could better defend with counsel’s guidance than by their own unskilled

efforts.” Faretta v. California, 422 U.S. 806, 834, 95 S. Ct. 2525, 2540 (1975).

Nevertheless, it is the defendant, and not his lawyer or the State, who bears

the personal consequences of conviction. Id. at 834, 95 S. Ct. at 2541. “[T]he

defendant, therefore, . . . must be free personally to decide whether in his particular

case counsel is to his advantage.” Id. A defendant may waive his right to counsel

and represent himself so long as his choice to do so is made voluntarily and

knowingly,4 with “a full awareness of both the nature of the right being abandoned

and the consequences of the decision to abandon it.” Patterson v. Illinois, 487 U.S.

285, 292, 108 S. Ct. 2389, 2395 (1988) (quoting Moran v. Burbine, 475 U.S. 412,

421, 106 S. Ct. 1135, 1141 (1986)).

In this case, the trial court determined that Jones’ repeated rejection of his

appointed counsel constituted a “functional waiver” of his right to counsel.

Consequently, the court discharged counsel, which required Jones to represent

4
Courts have used various verbal formulations to express the standard for the valid
waiver of a constitutional right. Cases have required courts to determine whether the waiver was
“intelligent and competent,” see Johnson v. Zerbst, 304 U.S. 458, 468-69, 58 S. Ct. 1019, 1025
(1938), “knowing, voluntary, and intelligent,” Tovar, 541 U.S. at 88, 124 S. Ct. at 1387,
“knowing and intentional,” Brewer v. Williams, 430 U.S. 387, 434, 97 S. Ct. 1232, 1258 (1977)
(White, J., dissenting), and “knowing and voluntary,” see Godinez v. Moran, 509 U.S. 389, 400,
113 S. Ct. 2680, 2687 (1993). We use the terms “knowing” and “voluntary” with the
understanding that, in the context of waiver, “knowing” is synonymous with “intelligent” and
“voluntary” is synonymous with “competent” and “intentional.”

23
himself during his murder trial. Jones contends that by doing so the trial court

violated his Sixth Amendment right to counsel.

This case comes to us as a petition for a writ of habeas corpus under 28

U.S.C. § 2254, and as such, is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Under AEDPA, a federal court must deny relief to

a person in custody pursuant to a state court conviction unless the state court

decision adjudicating the petitioner’s claim was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States,” or (2) was “based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” Id. § 2254(d)(1)-(2).

Jones cannot meet the requirement of § 2254(d)(1) because the Supreme

Court has never confronted a Sixth Amendment challenge involving a defendant

who rejects his appointed counsel without good cause. Cf. United States v. Garey,

— F.3d —, Case No. 05-14631 (11th Cir. August 20, 2008) (en banc) (“The

Supreme Court has never confronted a case in which an uncooperative defendant

has refused to accept appointed counsel or engage in a colloquy with the court.”).

However, as the original panel decision in this case discussed thoroughly, see

Jones, 496 F.3d at 1226-28, Jones has demonstrated the Georgia Supreme Court

24
unreasonably determined the facts of his case. Under AEDPA, we would ordinarily

defer to both the state court’s legal and factual determinations. See, e.g., Parker v.

Sec’y for Dep’t of Corr., 331 F.3d 764, 776 (11th Cir. 2003) (discussing deference

under § 2254(d)(1)); Gore v. Sec’y for Dep’t of Corr., 492 F.3d 1273, 1294 (11th

Cir. 2007) (discussing deference under § 2254(d)(2)). Nevertheless, because this is

a rare case in which the petitioner has met the requirement of § 2254(d)(2) by

showing the state courts made an unreasonable factual determination, we review

Jones’ claim de novo, without deference to the Georgia Supreme Court’s decision.5

A. United States v. Garey

5
Federal habeas courts generally defer to the factual findings of state courts, presuming
the facts to be correct unless they are rebutted by clear and convincing evidence. Id.
§ 2254(e)(1). However, when a state court’s adjudication of a habeas claim “result[s] in a
decision that [i]s based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” Id. § 2254(d)(2), this Court is not bound to defer to
unreasonably-found facts or to the legal conclusions that flow from them. See Taylor v. Maddox,
366 F.3d 992, 1008 (9th Cir. 2004) (“When we determine that state-court fact-finding is
unreasonable, . . . we have an obligation to set those findings aside . . . .”); see also Panetti v.
Quarterman, — U.S. —, 127 S. Ct. 2842, 2858 (2007) (declining to apply AEDPA deference
when state court made unreasonable determination of law under 28 U.S.C. § 2254(d)(1)).
Although the Georgia Supreme Court found Jones’ appointed trial counsel, Claudia Saari,
“testified that she made Jones fully aware of the nature of the charge, the possible sentences, and
the dangers of self-representation,” Jones, 272 Ga. at 886, 536 S.E.2d at 513 (emphasis added),
the record demonstrates Saari never testified about whether she warned Jones of the dangers of
self-representation. Because the Georgia Supreme Court unreasonably determined the facts
relevant to Jones’ Sixth Amendment claim, we do not owe the state court’s findings deference
under AEDPA. We therefore apply the pre-AEDPA de novo standard of review to Jones’ habeas
claims. See Johnson v. Alabama, 256 F.3d 1156, 1169 (11th Cir. 2001) (noting de novo standard
of review governs pre-AEDPA claims).

25
 In our recent en banc decision in Garey, we confronted a similar Sixth

Amendment challenge brought by a federal defendant who asserted his right to

counsel had been violated by the district court’s dismissal of his appointed counsel.

Although Garey came to us on direct appeal, rather than as a petition for a writ of

habeas corpus, the similarities between the defendant’s behavior in Garey and

Jones’ behavior are striking, and invite comparison.

The facts in Garey were these. After being charged with numerous felony

offenses, defendant Eddie Garey was appointed a competent defense attorney. Id.

at 5. On the eve of trial, however, Garey asked for new counsel, alleging his

appointed counsel suffered from a conflict of interest. Id. at 5-6. There was no real

conflict; therefore, the trial judge denied Garey’s request and offered him the same

choice given to Jones: proceed with appointed counsel or proceed pro se. Id. at 6.

Garey rejected counsel, but refused to affirmatively invoke his right to self-

representation. Id. at 7-9. Repeatedly, the trial court explained Garey’s options,

discussed the penalties Garey would face upon conviction, and elaborated on the

benefits of counsel and the “pitfalls” of self-representation. Id. Garey continued to

reject his court-appointed attorney and, in his words, “involuntarily waive” his

right to counsel. Id.

26
 The district court interpreted Garey’s uncooperative behavior as a voluntary

waiver of counsel and discharged Garey’s appointed attorney, but required him to

remain as standby counsel. Id. at 9. At trial, Garey represented himself, and was

convicted of 27 felony offenses. Id. at 13-14.

On appeal to this Court, Garey argued the district court violated his Sixth

Amendment rights by forcing him to represent himself at trial when he had not

made an affirmative request to do so—a prerequisite to valid waiver under then-

controlling Circuit precedent. In a decision overruling Marshall v. Dugger, 925

F.2d 374, 377 (11th Cir. 1991), we recognized for the first time that it is possible

for a valid waiver of counsel to occur not only when a cooperative defendant

affirmatively invokes his right to self-representation, but also when an

uncooperative defendant knowingly rejects the only counsel to which he is

constitutionally entitled. Garey, at 21. We did not establish a default rule

requiring district courts to interpret each instance of uncooperative behavior as a

waiver by conduct of the right to counsel; however, we recognized in some

instances a defendant’s conduct will reveal a voluntary decision to choose the path

of self-representation over the continued assistance of counsel. Id. at 23.

In the context of the facts then before us, we held the district court had not

abused its discretion by interpreting Garey’s uncooperative behavior as evidence of

27
a voluntary choice to waive his right to counsel. Id. at 30. The trial court had

informed Garey in no uncertain terms that the only attorney to which he was

entitled was his appointed counsel. Id. at 7. In no less uncertain terms, Garey

indicated he did not want his appointed counsel’s assistance, questioned his

counsel’s allegiance, and disagreed with the manner in which his counsel was

representing him. Id. at 28. Garey had rejected his attorney outright at least four

times, and several times more had expressed an “involuntary” intention to represent

himself. Id. at 30. In light of those facts, we agreed Garey’s conduct evinced a

voluntary choice to proceed pro se. Id.

Our inquiry did not end there, however. We emphasized a court may not

discharge counsel without violating the defendant’s Sixth Amendment rights unless

the defendant not only rejects the only counsel to which he is constitutionally

entitled, but also understands the choices available to him and the potential dangers

of proceeding pro se. Id. at 21. In Garey’s case, we concluded those requirements

had been met. The judge who presided over Garey’s trial provided ample warnings

of the dangers of self-representation, informing the defendant that there were many

advantages to being represented by an attorney trained in the law and familiar with

the rules of evidence and other rules applicable to his case. Id. at 31. The trial

court warned of “pitfalls” associated with interrogating, impeaching, and cross-

28
examining witnesses and discussed with Garey the calculus involved in deciding

whether to testify at trial. Id. In addition, the court explained some of the

challenges Garey would face in making his opening statement. Id. In light of those

facts, we concluded Garey waived his right to counsel knowingly and that his Sixth

Amendment rights were not violated by his self-representation at trial. Id. at 32.

With that background in mind, we turn now to the facts of the present case.

1. Voluntary Waiver

Like Garey, Jones contends his Sixth Amendment rights were violated when

the trial court dismissed his appointed counsel and required him to represent

himself at trial. It is undisputed Jones never directly asked to represent himself.

Quite the opposite, he repeatedly invoked his right to counsel and insisted he

wanted an attorney (just not the one appointed to represent him). Jones did not

affirmatively waive his right to counsel; therefore, the question becomes whether

Jones, like Garey, voluntarily waived his right to counsel not by his words, but by

his conduct.

Throughout the course of his criminal proceedings, Jones was informed

repeatedly by the trial court and by his lawyer that he was not entitled to counsel of

his choice, see Thomas v. Wainwright, 767 F.2d 738, 742 (11th Cir. 1985), and that

29
Saari was the only lawyer who would be appointed to represent him.6 At the March

14, 1996 waiver hearing, the court explained: “[Saari] is your lawyer, or you don’t

have a lawyer. It’s that simple.” And again, at the August 8, 1996 hearing (which

took place after Jones had already fired and re-hired Saari once before), the trial

court reiterated: “[Y]ou’re going to do one of two things. You’re either going to

have her represent you or you’re going to represent yourself.”

Jones admits he understood his choice was to accept Saari’s representation or

proceed without counsel, and given that choice, he rejected Saari’s assistance on

two separate occasions, once in March 1996 and again in August 1996. At the

March 14, 1996 hearing, Jones refused to choose between Saari’s representation

and self-representation, all the while repeatedly criticizing Saari’s management of

his case. In response, the trial court dismissed counsel.

When Jones later had second thoughts about the wisdom of proceeding pro

se, the trial court reappointed Saari. However, it was not long before Jones once

again took issue with her representation. At the August 8, 1996 hearing, Jones

explicitly rejected Saari’s assistance:

Court: Do you want this woman to represent you?

6
Jones does not challenge the district court’s conclusion that there was no good cause for
dismissing his appointed counsel.

30
 Jones: I want an effective—

Court: Do you want this woman to represent you?

Jones: I want an effective attorney.

Court: Do you want this woman to represent you?

Jones: No, sir.

With respect to their conduct before the trial court, the main difference

between Jones and Garey is that Jones’ conduct was even less cooperative and

more dilatory. Jones’ uncooperative behavior spanned a five-month period and

resulted in his trial being delayed on three separate occasions—all “aggravating

factors” not present in Garey’s case. In virtually all other respects, their conduct

was nearly identical.

Jones understood he was entitled to only one attorney: Claudia Saari.

Nevertheless, Jones rejected Saari’s assistance, questioned her “effectiveness,” and

made it known in open court that he disagreed with the way she was handling his

defense. When pressed by the trial court, Jones unequivocally stated he did not

want Saari to represent him. In light of those facts, the trial court did not err when

it concluded that by rejecting appointed counsel, Jones “voluntarily chose to

proceed pro se as surely as if he had made an affirmative request to do so,” and

therefore “voluntarily waived his right to counsel by his conduct.” Garey, at 30.

31
2. Knowing Waiver

That leaves the question whether, because neither the trial court nor his

appointed counsel warned him on the record of the dangers of proceeding pro se,

Jones’ waiver was unknowing. It is on this prong of our analysis that Jones’s case

begins to diverge from Garey.

In Garey, the trial court provided the defendant with extensive warnings

regarding the dangers of proceeding pro se, describing the potential pitfalls of self-

representation, “including the questioning of witnesses, the decisions on who to put

up as witnesses, the decisions on whether to testify or not, decisions regarding

impeachment, cross-examination.” Garey, at 6. The judge explained the trial

would be complex, and provided Garey with examples of the sorts of difficult Fifth

Amendment issues that might arise for him as a pro se litigant. Id. at 11-12.

Repeatedly, the trial court urged Garey to accept representation from his appointed

counsel, whom the court had retained as standby counsel.

The trial judge did not provide similar warnings in Jones’ case. Although

the judge praised the virtues of Jones’ appointed counsel and asked Jones’ mother

to persuade her son to accept Saari’s representation, the court did not provide Jones

with any explanation of the rights he was surrendering by waiving counsel. The

trial judge did not advise Jones of the procedural and evidentiary rules he would be

32
required to follow or inform him he would have to make complicated strategic

decisions at trial. When Jones asked questions regarding his right to counsel, the

judge insisted appointed counsel Saari was “a fine lawyer” and indicated he “was

sick and tired of hearing [Jones] go over and over” his complaints about her. The

judge repeatedly asserted he “didn’t have to argue” with Jones. The only

comments approximating warnings were (1) the court’s statement to Jones that

Saari was “a seasoned attorney” who “knows what the law is about and how it

should be handled in your defense” and (2) the observation, made after Saari was

discharged, “You’re making a horrible mistake. But that’s your business.”

On direct appeal, the Government bears the burden of proving a waiver is

both voluntary and knowing. Garey, at 27. In such cases, the Government must do

more than rest on a silent record: it must point to evidence demonstrating the

defendant was warned by the court or knew from another reliable source (e.g., his

lawyer, the prosecutor, past experience, specialized training, or some other

independent source of information) of the dangers that lay ahead. Here, the trial

court did not warn Jones of the dangers of self-representation and, contrary to the

Georgia Supreme Court’s opinion, see note 5, supra, there is no record support for

the proposition that Jones’ lawyer testified she counseled him on the dangers of

33
representing himself. If confronted with this record on direct appeal, we would be

unable to say the Government had established Jones’ waiver was knowingly made.

But this is not a direct appeal: it is a petition for a writ of habeas corpus.

B. Habeas Corpus

“When the process of direct review . . . comes to an end, a presumption of

finality and legality attaches to [a] conviction and sentence.” Brecht v.

Abrahamson, 507 U.S. 619, 633, 113 S. Ct. 1710, 1719 (1993) (quoting Barefoot v.

Estelle, 463 U.S. 880, 887, 103 S. Ct. 3383, 3391-92 (1983)). For that reason,

courts often “appl[y] different standards on habeas than would be applied on direct

review.” Id. at 634, 113 S. Ct. at 1720. One such difference is a shift in the burden

of proof relating to Sixth Amendment waiver of counsel claims.

On direct appeal, the Government bears the burden of proving a defendant

has waived his right to counsel knowingly and voluntarily. Garey, at 27; United

States v. Cash, 47 F.3d 1083, 1088 (11th Cir. 1995). But when a defendant “seeks

release by the extraordinary remedy of habeas corpus, the burden of proof rests

upon him to establish that he did not competently and intelligently waive his

constitutional right to assistance of Counsel,” Johnson v. Zerbst, 304 U.S. 458,

468-69, 58 S. Ct. 1019, 1025 (1938); see also Ferguson v. Culliver, 527 F.3d 1144,

1147 (11th Cir. 2008); Vines v. United States, 28 F.3d 1123, 1135 (11th Cir. 1994);

34
Lindsey v. Smith, 820 F.2d 1137, 1149 (11th Cir. 1987). A writ of habeas corpus

may be issued only if the petitioner “convinces the court by a preponderance of

evidence” that he did not validly waive his right to counsel. Johnson, 304 U.S. at

469, 58 S. Ct. at 1025. Consequently, it is Jones who bears the burden of proving

his waiver was unknowingly made.

To meet his burden, Jones was required to point to evidence in the record

from which a trier of fact could reasonably conclude Jones did not understand the

dangers of self-representation at the time he waived his right to counsel. Although

this Court’s precedents put Jones on notice of the importance of developing a

complete record for his habeas appeal, and although Jones was given ample

opportunity to develop his record in state court, he failed as a matter of law to

prove he did not understand the dangers of self-representation at the time he

waived his right to counsel.

Jones argues the trial court was obliged to warn him of the dangers of self-

representation, and because it did not do so, his Sixth Amendment rights were

violated. Our precedents establish, however, that failure to provide on-the-record

warnings does not always lead to reversal. See, e.g., Strozier v. Newsome, 926 F.2d

1100, 1105 (11th Cir. 1991) (Strozier II); United States v. Fant, 890 F.2d 408, 409

(11th Cir. 1989); Fitzpatrick, 800 F.2d at 1065. Though this Court has held time

35
and again that trial courts should ensure defendants do not waive counsel unless

they understand the protections they are surrendering, see, e.g., Garey, at 25; Cash,

47 F.3d at 1088, it does not follow automatically that Jones’ constitutional rights

were violated by the court’s failure to warn him in this particular case.

The warnings given (or not given) to a criminal defendant are relevant to

whether the defendant knowingly waived his right to counsel; however, the failure

to provide on-the-record warnings is not conclusive proof that a defendant’s waiver

of counsel was unknowingly made. We require trial courts to warn defendants of

the dangers of self-representation not because the warnings are an end in

themselves, but because they are a means to the end of ensuring defendants do not

waive fundamental constitutional rights without an adequate understanding of the

consequences of their choices. Cf. Strozier v. Newsome, 871 F.2d 995, 998 (11th

Cir. 1989) (Strozier I) (warnings are “a means to the end [of] ensuring a voluntary

and intelligent waiver”). Despite our strong admonition that trial courts provide

on-the-record warnings to all defendants who wish to waive their right to counsel,

the “ultimate test” of whether a defendant’s choice is knowing is not the adequacy

of the trial court’s warning but “the defendant’s understanding.” Fitzpatrick, 800

F.2d at 1065; see also Stano v. Dugger, 921 F.2d 1125, 1145 (11th Cir. 1991) (en

banc).

36
 So long as a defendant knows the risks associated with self-representation, it

is irrelevant for constitutional purposes whether his understanding comes from a

colloquy with the trial court, a conversation with his counsel, or his own research

or experience. The core inquiry is whether the defendant understood the choices

before him and the potential dangers of proceeding pro se. If so, his waiver is

valid.

At the time Jones waived his right to counsel, the practice of this Circuit was

well-established: when reviewing the convictions of state defendants who had

waived counsel without prior on-the-record warnings, this Court would scrutinize

the record to determine whether it supported a finding that each petitioner had

knowingly waived his right to counsel. See, e.g., Fitzpatrick, 800 F.2d 1057;

Strozier II, 926 F.2d 1100. That practice has not changed. In reviewing habeas

petitioners’ state court records, we examine a variety of facts, including the

defendant’s background, experience and conduct; his knowledge of the nature of

the charges, the possible defenses, and the possible penalties; and whether the

defendant was trying to manipulate the events of the trial. Strozier II, 926 F.2d at

1105 (citing Fitzpatrick, 800 F.2d at 1065-67); see also Strozier I, 871 F.2d at 998.

Jones was given a full opportunity to develop the record. Nevertheless, he

squandered his best opportunity to adduce evidence on whether his waiver was

37
unknowing. Three years after Jones was convicted, he filed an amended motion for

a new trial, contending among other things, that he had not validly waived his right

to counsel. The trial court convened an evidentiary hearing on the motion, at

which Jones was represented.7

At that hearing, counsel argued Jones’ waiver was not valid because the trial

judge had failed to apprise Jones of “the nature of the charges, statutory offenses

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 matter.” However, Jones’ attorney studiously avoided

asking questions or eliciting testimony on a critical factual issue: whether Jones

knew from Saari or any other source of the dangers of self-representation.

During the evidentiary hearing, the state trial court elicited testimony from

Saari regarding Jones’ understanding of the seriousness of his offense and the

applicable penalties. Jones’ counsel did not follow up on this line of questioning

by asking Saari whether she had ever discussed with Jones the dangers of self-

representation, or by probing whether Saari believed from her conversations with

7
At the February 9, 2000 evidentiary hearing on Jones’ motion for a new trial, the
Government bore the burden of proving Jones’ waiver was knowing and voluntary.
Nevertheless, it was incumbent on Jones to develop the record with an eye not only to his direct
appeal, but also to his federal habeas petition. AEDPA requires habeas petitioners to develop the
factual basis of their federal claims in state court proceedings, and any petitioner who fails to do
so is not entitled to a later hearing in federal court. See 28 U.S.C. § 2254(e)(2).

38
Jones that he possessed an adequate understanding of the dangers of self-

representation. More troubling still, when Jones took the stand, he never testified

he had been unaware of the dangers he would face as a pro se litigant. In response

to the Government’s questions, Jones admitted he understood his choice was to be

represented by Saari or to represent himself. He explained that he had not asked

the court to reappoint Saari during the trial “[b]ecause I wasn’t going to accept Ms.

Saari back. I didn’t want Ms. Saari back.” In short, despite having had ample

opportunity to develop his record, Jones remained silent on the question of what he

knew (or did not know) at the time he waived his right to counsel.

Knowing what is not in the record, we turn to what is. At the time of his

indictment, Jones was twenty-one years old. His educational background is

unclear, though it is apparent from his filings and his statements in open court that

he was literate and articulate. His filings and oral statements were coherent and

suggest he possessed at least average intelligence. He did not suffer from mental

illness.

With respect to Jones’ contact with lawyers and his understanding of the

case, the record reveals he was represented by Claudia Saari, an experienced

attorney, from the time of his indictment in the fall of 1995 to his first dismissal of

counsel in March 1996. Saari resumed handling Jones’ case in May 1996, at Jones’

39
request, and remained his lawyer until August 1996, when Jones again rejected her

representation. Much of Jones’ conflict with Saari centered around his trial

defense, including the witnesses to be subpoenaed and the expert testimony to be

elicited. His differences of opinion on these topics suggest he possessed at least a

rudimentary understanding of the possible defenses to his crime.

Jones and his mother were informed in open court of the seriousness of the

murder charges against him and of the possibility he could be sentenced to life

imprisonment, and Jones’ lawyer testified she had discussed with him the possible

penalties for his crime and Jones understood the seriousness of the charges against

him. Both Saari and the trial court impressed upon Jones that, as a result of Saari’s

legal training, she “knew the law and how it should be handled in [his] defense.”

The record is more equivocal with respect to Jones’ understanding of

courtroom rules and procedures. Jones was not questioned about his familiarity

with the rules of evidence or with the law governing his case and although he

testified that he had read “law books” prior to his trial, he also represented he was

“unfamiliar with the rules of evidence.”

Jones was, however, aware of the importance of the rules of evidence and the

importance of having assistance from an attorney who understood them, as

evidenced by his letter requesting Saari’s re-appointment in May 1996. Following

40
trial, Jones wrote that his “lack[] [of] skill and knowledge” had prevented him from

prevailing on his attempts to suppress evidence the Government introduced against

him at trial. Jones’ prior experience with the criminal justice system appears to

have been limited to one charge of battery, to which he pleaded guilty and received

a sentence of probation. This was his first trial.

We review Jones’ performance during trial, not because we wish to

determine whether his trial conduct was good or bad, but because his performance

at trial provides some circumstantial evidence of what he knew at the time he

waived his right to counsel. Jones participated actively in his trial defense. Before

trial, he sought a third continuance in order to subpoena witnesses and “resubmit

motions which were abandoned by [his] previous counsel.” He also filed motions

in limine and requested a Jackson-Denno hearing and a hearing on the

admissibility of “similar transaction evidence” the Government planned to

introduce. During trial, Jones examined and cross-examined witnesses, made

objections, and moved for a judgment of acquittal at the close of the Government’s

case. At the hearing on his motion for a new trial, Jones testified he had not asked

the court to re-appoint counsel during trial because he “didn’t want Ms. Saari

back”—a statement that suggests even in the midst of complicated proceedings,

Jones preferred self-representation over his only other option.

41
 There are several facts in the record which suggest Jones’ waiver may not

have been made with a full understanding of the dangers of self-representation.

Jones was only twenty-one years old at the time he was charged and had minimal

past experience with the criminal justice system. He had never before been to trial.

He was not assigned standby counsel to assist him at trial, and perhaps most

importantly, neither the court nor any other person provided him with on-the-record

warnings of the dangers of self-representation.

Nevertheless, there are many facts in the record which suggest Jones’ waiver

was not unknowing. Jones was not mentally ill, understood the nature of the

charges against him, and was aware of the possible penalties he faced upon

conviction. Cf. Fitzpatrick, 800 F.2d at 1066-67. He had the opportunity to

consult with experienced trial counsel and was not pressured into waiving his right

to counsel. Jones understood courtroom rules and procedures well enough to

participate actively in his defense at trial by moving to suppress evidence, making

objections, moving for a judgment of acquittal, and examining and cross-examining

witnesses. His understanding of these trial procedures suggests he knew how to

“compl[y] with normal court procedure, and that he generally knew how to handle

himself in court.” Id. at 1067. Jones’ repeated attempts to continue his trial by

dismissing, re-hiring, and re-firing counsel are “[e]vidence of manipulation or

42
intentional delay” which “impl[y] a greater understanding of the proceedings and

an understanding of the risks and complexities of a criminal trial.” Id. And finally,

Jones’ testimony at the evidentiary hearing on his motion for a new trial fails to

show his decision to proceed pro se was anything but a calculated, voluntary

exercise of his informed free will, cf. Faretta, 422 U.S. at 835, 95 S. Ct. at 2541,

rather than the result of a mistaken or uniformed decision.

Jones bore the burden of coming forward with some evidence—whether in

the form of his own testimony, the testimony of others or documentary

evidence—from which a trier of fact could reasonably conclude by a

preponderance of the evidence that he did not understand the right he was

surrendering and the attendant dangers of proceeding pro se, and he failed to meet

that burden. At his evidentiary hearing in state court Jones was represented by

counsel and took the stand to testify. If at the time of his trial he had lacked an

understanding of the dangers of self-representation, all he had to do was testify to

that effect at the evidentiary hearing on his motion for a new trial. Instead, Jones

remained silent on the question of what he understood at the time he waived

counsel, and his attorney at the evidentiary hearing did not question Saari about

whether she ever warned Jones off the record of the dangers of proceeding pro se.

43
 Standing alone, the mere existence of some evidence in the record casting

doubt on whether Jones’ waiver was knowing is insufficient as a matter of law to

prove the waiver was unknowing. Given the record evidence supporting the

inference that Jones’ waiver was knowing and the dearth of evidence pointing to

the opposite conclusion, we conclude Jones has not met his burden of proving by a

preponderance of the evidence that his waiver of counsel was made unknowingly.

As a result, the district court did not err by denying his petition for habeas corpus.

AFFIRMED.

44
BARKETT, Circuit Judge, Dissenting:

When a defendant such as Melvin Jones objects to appointed counsel but

refuses to waive his right to counsel and at the same time refuses to represent

himself, the trial judge must navigate between competing constitutional rights.

In such a case, a judge must advise the defendant that he is entitled to

effective representation but not to the counsel of his choice, and then to explain the

ramifications and dangers both of waiving the right to counsel and of proceeding

pro se. After the judge has appropriately advised the defendant and determined

that the defendant understands the ramifications of the only available choices, the

judge has three options.

First, if the judge determines that the defendant is incapable of representing

himself, the judge should order the defendant to proceed with appointed counsel.1

Second, if the judge determines that the defendant is capable of representing

himself and the defendant continues to insist that he does not wish to be

represented by appointed counsel, the judge may permit the defendant to proceed

pro se with the assistance of standby counsel, as in United States v Garey, No.

1
This assumes of course that there is no constitutional impediment—such as a conflict of
interest—to forcing continued representation by the appointed counsel.

45
05-14631 (11th Cir. 2008).2 Theoretically, the judge’s third choice is to order the

defendant to proceed entirely pro se.

Although I believe the third choice is rarely constitutionally permitted when

the defendant unequivocally states that he does not want to proceed pro se,3 I need

not address that issue in this case, because the judge presiding over Jones’s trial

neither advised Jones of the hazards of self-representation nor inquired into the

knowingness of Jones’s supposed decision to proceed alone. There was no

colloquy on the record, as there was in Garey, to assure that Jones proceeded with

eyes open, aware of the consequences of forgoing his right to counsel at trial; nor

was he even provided standby counsel.

On at least four occasions the Supreme Court has indicated that on-the-

record warnings of the dangers of self-representation are required for a knowing

waiver of counsel. See Iowa v. Tovar, 541 U.S. 77, 88–89 (2004) (“As to waiver

of trial counsel, we have said that before a defendant may be allowed to proceed

pro se, he must be warned specifically of the hazards ahead.”); id. (“Warnings of

2
In Garey, we noted that the record reflected that the trial judge provided Garey with
extensive warnings as to the dangers of self-representation and waiver of counsel. After being so
advised, Garey made clear his preference for self-representation over proceeding with appointed
counsel, and the trial court discharged Garey’s appointed counsel, but required that he remain as
standby counsel. (Maj. Op. at 27–28.)
3
In any event, as the majority noted in Garey, the preferred alternative to permitting a
defendant to proceed entirely alone is to retain standby counsel.

46
the pitfalls of proceeding to trial without counsel . . . must be ‘rigorous[ly]’

conveyed.” (alteration in original) (quoting Patterson v. Illinois, 487 U.S. 285, 298

(1988))); Patterson, 487 U.S. at 298 (“[R]ecognizing the enormous importance and

role that an attorney plays at a criminal trial, we have imposed the most rigorous

restrictions on the information that must be conveyed to a defendant, and the

procedures that must be observed, before permitting him to waive his right to

counsel at trial.”); id. at 299 (“[W]e require a more searching or formal inquiry

before permitting an accused to waive his right to counsel at trial than we require

for a Sixth Amendment waiver during postindictment questioning.”); Faretta v.

California, 422 U.S. 806, 835 (1975) (“[H]e 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.’” (quoting Adams

v. United States ex rel. McCann, 317 U.S. 269, 279 (1942))); Von Moltke v.

Gillies, 332 U.S. 708, 723–24 (1948) (plurality opinion) (“‘The constitutional right

of an accused to be represented by counsel invokes, of itself, the protection of a

trial court, in which the accused—whose life or liberty is at stake—is without

counsel. This protecting duty imposes the serious and weighty responsibility upon

the trial judge of determining whether there is an intelligent and competent waiver

by the accused.’ To discharge this duty properly in light of the strong presumption

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against waiver of the constitutional right to counsel, a judge must investigate as

long and as thoroughly as the circumstances of the case before him demand.”

(footnote omitted) (citing Johnson v. Zerbst, 304 U.S. 458, 465 (1938))).

Such warnings on the record are required to give full meaning to the right to

counsel at trial, and their complete and total absence in this case is, in my view,

dispositive.4 Thus, I believe Jones is entitled to proceed with his habeas petition.

The majority agrees that Jones would be entitled to relief on direct appeal

because, on this record, the government would not be able to sustain its burden of

proving that Jones knowingly waived his right to counsel. It denies relief here,

however, on the grounds that Jones—and not the government—now bears the

burden of establishing a violation of his constitutional right to counsel. (Maj. Op.

at 36.) I fail to see a distinction in the application of the burdens to the facts of this

case. As the majority concedes, the government could not show on the record that

Jones knowingly waived the right to counsel as the court never advised Jones of the

dangers of self-representation. On that same record, Jones has clearly met his

4
See also United States v. Thomas, 357 F.3d 357, 362 (3d Cir. 2004) (“It is clear from the
Supreme Court’s decision in Faretta . . . and this court’s decision in United States v. Welty, 674
F.2d 185, 188 (3d Cir. 1982), that the district court must undertake an affirmative on-the-record
colloquy to explain to the defendant the possibility of waiver and give the defendant ‘an
awareness of the dangers and disadvantages inherent in defending oneself.’”); United States v.
Gewin, 471 F.3d 197, 199 (D.C. Cir. 2006) (“To satisfy Faretta, a trial court must engage the
defendant in a ‘short discussion on the record’ about the dangers and disadvantages of
self-representation.”).

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burden of showing the very same thing: that he was not warned of the dangers of

self-representation, that there is no adequate evidence on the record that he

otherwise knew and understood those dangers, and thus, that he did not knowingly

waive his right to counsel. I would reverse the judgment of the district court and

grant habeas relief.

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