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Precedential or Non-Precedential: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.

42

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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