Moore v. Haviland

ROGERS, Circuit Judge,

dissenting.

Where a criminal defendant waits until the final day of trial to invoke his right to self-representation, a trial judge does not unreasonably apply clearly established federal law in declining to grant that request. Therefore, I would reverse the order granting a conditional writ of habeas corpus here.

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), upon which Moore relies for relief, did not announce an unqualified right to self-representation. In holding that a defendant’s rights were violated when he was not permitted to proceed pro se, the Supreme Court stressed not only that his request for self-representation was made “clearly and unequivocally,” id. at 835, 95 S.Ct. 2525, but that it was made far in advance of trial. The Court mentioned the timing of the defendant’s request no fewer than three times, noting that the request was made “[w]ell before the date of trial,” id. at 807, 95 S.Ct. 2525, and “weeks before trial,” id. at 835, 95 S.Ct. 2525, and that a hearing on the motion was held “[s]everal weeks thereafter, but still prior to trial,” id. at 808, 95 S.Ct. 2525. The Court then concluded the opinion by holding that “[i]n forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right.” Id. at 836, 95 S.Ct. 2525 (emphasis added). Thus, although the Supreme Court did not explicitly impose a timeliness requirement, it “incorporated the facts of Faretta into its holding.” Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir.2005); see also United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002) (“The Court mentioned the timeliness of the request in both the opening paragraphs and the breadth with which the Court announced its decision.”).

Accordingly, as the Supreme Court has recognized, “most courts” have interpreted Faretta to require that a defendant assert his right to self-representation “in a timely manner.” Martinez v. Court of Appeal of Cal., Fourth Appellate Dist., 528 U.S. 152, 161-62, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); see also, e.g., Wood v. Quarterman, 491 F.3d 196, 201-02 (5th Cir.2007); United States v. Edelmann, 458 F.3d 791, 808 (8th Cir.2006); United States v. Young, 287 F.3d 1352, 1353-55 (11th Cir.2002); United States v. Martin, 25 F.3d 293, 295-96 (6th Cir.1994); United States v. Brown, 744 F.2d 905, 908 (2d Cir.1984); United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.1979). This view is consistent with the traditional rule that a defendant’s right to represent himself “is sharply curtailed” once a trial begins. See United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965). Under this rule, which Faretta did not purport to alter, the decision of whether to grant a motion to proceed pro se made after trial has begun is left to the “sound discretion of the trial court.” Lawrence, 605 F.2d at 1324; see *405also Robards v. Rees, 789 F.2d 379, 384 (6th Cir.1986).

This court, like most others, has consistently declined to find constitutional error in the denial of a request for self-representation made after the initiation of meaningful proceedings. In Robards v. Rees, 789 F.2d at 383-84, for example, this court held that the denial of a defendant’s pro se request did not violate his rights where that request was made after the jury was sworn in and roll had been called. The grant of such an untimely request, this court held, “would have impermissibly delayed the commencement of the trial.” Id. at 384. Although this court also noted that the defendant had not exhibited a genuine desire to represent himself, id. at 383-84, our subsequent decisions have made clear that tardiness alone is sufficient grounds for denying a motion for self-representation. In United States v. Conteh, 234 Fed.Appx. 374, 381 (6th Cir.2007), we held that it was not an abuse of discretion to deny a request made “after trial began,” stating simply that “[t]he motion was untimely.” See also United States v. Pleasant, 12 Fed.Appx. 262, 266-67 (6th Cir.2001) (motion was properly denied where made “on the day of trial with prospective jurors standing outside of the courtroom”); Martin, 25 F.3d at 295-96 (denial of motion made “after the trial was in full swing [was] a fortiori a proper exercise of discretion”).

If it was constitutional to deny the right to self-representation in those cases, then surely the same was permissible here. Moore did not even express interest in proceeding pro se until the fourth day of a five-day trial, and did not make a request to do so that was even arguably clear until the fifth and final day of trial. Moreover, there is no doubt that granting Moore’s request would have seriously derailed the proceedings. In his note to the trial judge, for example, Moore acknowledged that he would need to “review[] documents in [the] Prosecutor’s control,” “formulate a full [and] encompassing strategy,” “formulate [questions] to be asked of [him] when [he took the] witness stand,” and “write the closing argument.” While one must suspect that a longer period would have been needed, even the two-day continuance that Moore requested to allow for the completion of these tasks would have caused a significant disruption. Though the state trial judge never made a formal ruling on Moore’s motion for self-representation, his decision not to grant Moore’s request was in effect a denial.

Timeliness, moreover, cannot be measured from when a defendant perceives the need to represent himself. See Stenson v. Lambert, 504 F.3d 873, 879, 884-85 (9th Cir.2007). Supreme Court precedent does not provide defendants with a right to demand self-representation based on “dissatisfaction with counsel’s representation” arising during the trial. See Maj. Op. at 403. Recognition of such a right would effectively do away with any meaningful timeliness requirement. Habeas relief accordingly cannot be granted on this ground.

And, because the state trial judge could have simply denied Moore’s motion as untimely, it is not an objectively unreasonable application of clearly established federal law to conclude that a Faretta hearing was not necessary. Just as nothing in Faretta requires a court to grant a motion for self-representation made after meaningful proceedings commence, nothing in that decision, or any other Supreme Court case, mandates that a hearing be held on such an untimely request. Thus, although it may have been preferable for the state trial judge to have engaged in a Faretta inquiry and to have ruled formally on *406Moore’s motion, his failure to have done so does not warrant issuance of the writ.

That the state court of appeals did not base its decision on the untimeliness of Moore’s request does not prevent reliance on that ground now. Here, as the magistrate Report and Recommendation adopted by the district court acknowledges, the state court of appeals “did not analyze whether the trial court properly handled Moore’s request to represent himself under the clearly established federal law announced in Faretta.” That court never, for example, inquired into whether Moore’s alleged pro se requests were unequivocal or vague, as Faretta clearly requires. Moreover, the state court of appeals appears to have examined Moore’s claims under state cases instructing judges how to respond to trial complaints of ineffective assistance of counsel.

In a situation such as this, where the most recent state adjudication “does not squarely address the federal constitutional issue in question, but its analysis bears ‘some similarity’ to the requisite constitutional analysis,” Filiaggi v. Bagley, 445 F.3d 851, 854 (6th Cir.2006), a habeas court must conduct an independent inquiry of the record and applicable law, and may reverse only if the state court result was contrary to or an unreasonable application of federal law, Maldonado v. Wilson, 416 F.3d 470, 475-76 (6th Cir.2005). This modified form of AEDPA deference allows, and indeed requires, a federal court to deny habeas relief on any rationale that the record will support, even one that was not directly relied upon.