Appendix — Welch v. Moore (No. 08-1425)
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Supreme Court, U.S.
FILE
081425 MAY 15 2009
OFFICE OF THE CLERK
No. 09-____
Jn the Supreme Court of the Anited States
ROBERT WELCH, WARDEN,
Petitioner,
Vv.
JOHN C. MOORE, JR.,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
APPENDIX
RICHARD CORDRAY
Attorney General of Ohio
BENJAMIN C. MIZER*
Solicitor General
*Counsel of Record
ALEXANDRA T. SCHIMMER
Chief Deputy Solicitor General
30 Easi Broad St., 17th FI.
Columbus, Ohio 43215
614-466-8980
614-466-5087 fax
benjamin.mizer@
ohioattorneygeneral gov
Counsel for Petitioner
Robert Welch, Warden
TABLE OF CONTENTS
Appendix A: Order denying rehearing en
vance, United States Court of Appeals for the
Sixth Circuit, December 17, 2008......................
Appendix B: Opinion, United States Court of
Appeals for the Sixth Circuit, July 15, 2008.....
Appendix C: Order and Opinion Adopting
Report and Recommendation and Granting a
Conditional Writ of Habeas Corpus, United
States District Court for the Northern
District of Ohio, Eastern Division, February
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Appendix D: Report and Recommenaation,
United States District Court, Northern
District of Ohio, Eastern Division, July 27,
Appendix E: Entry denying leave to appeal,
Ohio Supreme Court, January 29, 2003.......... .
Appendix F: Journal Entry and Opinion,
Kighth District Court of Appeals, Cuyahoga
County, April 29, 2002 ............. asec ageaderndtec ais
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APPENDIX A
No. 07-3380
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN C. MOORE, JR.,
Petitioner-Appellee,
V.
JAMES S. HAVILAND, Warden
Respondent-Appellant,
Filed: December 17, 2008
Before: BOGGS, Chief Judge; ROGERS, Circuit
Judge; and SHADUR,” District Judge.
ORDER
The court having received a petition for
rehearing en banc, and the petition having been
circulated not only to the original panel members but
also to all other active judges of this court, and no
judge of this court having requested a vote on the
suggestion for rchearing en banc, the petition for
rehearing has been referred to the original panel.
* Hon. Milton I. Shadur, Senior United States District Judge for
the Northern District of Iiinois, sitting by designation.
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The panel has further reviewed the petition
for rehearing and concludes that the issues raised in
the petition were fully considered upon the original
submission and decision of the case. Accordingly, the
petition is denied. Judge Rogers would grant
rehearing for the reasons stated in his dissent.
ENTERED BY ORDER OF THE COURT
s/Leonard Green
Clerk
3a
APPENDIX B
RECOMMENDED FOR FULL-TEXT
PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 08a0253p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN C. MOORE, JR.,
Petitioner-Appellee,
i
JAMES S. HAVILAND, Warden,
Respondent-Appellant.
No. 07-3380
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 04-00242—Lesley Brooks Wells, District Judge.
Argued: March 18, 2008
Decided and Filed: July 15, 2008
Before: BOGGS, Chief Judge; ROGERS, Circuit
Judge; SHADUR, District Judge.”
* The Honorable Milton I. Shadur, United States District Judge
for the Northern District of Illinois, sitting by designation.
4a
COUNSEL
ARGUED: Jerri L. Fosnaught, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. J. Dean Carro, UNIVERSITY OF AKRON
SCHOOL OF LAW, Akron, Ohio, for Appellee. ON
BRIEF: Jerri L. Fosnaught, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for
Appellant. J. Dean Carro, UNIVERSITY OF AKRON
SCHOOL OF LAW, Akron, Ohio, for Appellee.
SHADUR, D. J., delivered the opinion of the
court, in which BOGGS, C. J., joined. ROGERS, J.
(pp. 12-13), delivered a separate dissenting opinion.
OPINION
SHADUR, District Judge. James Haviland, in
his capacity as Warden, appeals the issuance of a
writ of habeas corpus to John Moore (“Moore”) by the
district court. In the underlying state criminal
proceedings that have given rise to Moore’s federal
habeas action, he sought to represent himself at
trial, but his request was never resolved and he was
convicted while represented by appointed counsel.
After his conviction was upheld on appeal in the
state system, he then turned to the federal courts
and was awarded a grant of conditional habeas
relief. We affirm the judgment of the district court
that did so.
5a
I. Moore’s State Criminal Trial!
Moore’s criminal trial took place in Cuyahoga
County Common Pleas Court in September 2000. On
the third day of trial Moore’s appointed attorney
Robert Tobik (“Tobik”) informed the trial judge that
Moore was displeased with some aspects of his
representation and wanted to address the court.
Moore had given Tobik a note for the judge
expressing that displeasure, but the note was not
delivered. Moore then attempted to speak to the
judge in open court, but the judge told him that he
was not to engage in conversation with the court in
front of the jury. Later, when the jury was on break,
the following exchange occurred:
The Court: What’s the problem that you can’t
communicate to the court through your
attorney?
Moore: Your Honor, I would like to go on the
record to preserve the right to call all
witnesses called by the prosecutor. I have
many, many questions.
The Court: That’s fine. You can call anybody
you want.
' It is unnecessary to recount the specifics of Moore’s alleged
crimes, for the grant or denial of habeas relie’ depends solely on
occurrences during trial. Appellant's counsel have devoted an
inordinate amount of space in their briefs to spell out (in
considerable detail) Moore’s alleged crimes. We scarcely need
to remind lawyers who represent the government at any level
that even the meanest members of society also have
constitutional nights.
6a
Moore: I have many questions that I presented
to my lawyer to be asked that he did not ask
them. Also, I want Fred King and all the
codefendants called and put on record whether
they take the Fifth or if they--
The Court: You cal] anybody you want. That’s
fine.
Moore: Okay. Also, I asked him to have
Detective Moran kept out of the room while
Detective Maruniak testified because I’m sure
there would be inconsistencies between what
he was telling us and what I was expecting to
get out of Detective Moran.
The Court: There is a motion for separation of
witnesses. Anybody who wanted to call a
witness here could have the _ individual
subpoenaed and/or ennounced that they were
going to be called and taken out of the
courtroom. They leave the courtroom.
Moore: That’s my point. Before he got started
this morning--see, | noticed in the last one he
sat through from beginning to end of Detective
Alexander’s testimony. From beginning to end
Detective Maruniak was present. So, I asked
my attorney to make sure that Moran was not
present.
The Court: Are you disagreeing with your
attorney's tactics?
Moore: I wrote it in a letter to you to make
sure you could get it down even if he didn't.
The Court: I haven’t seen your letter.
7a
Moore: [ know. That was my point. I knew for
a fact you hadn’t seen it before he--
The Court: You know, look. You have a very
experienced trial counsel.
Moore: I understand that, but I feel that--
The Court: Hold it. When I’m talking, you
don’t interrupt me.
Moore: I’m sorry.
The Court: He can decide what questions are
appropriate and what are not. Not you. You
can make suggestions to him. You can urge
him to ask questions, but if the question isn’t
permissible under the rules of evidence or if
the question goes into sound tactics of his
assessment of the case and what tactics he
thinks should be employed, then he is the one
who makes that decision as to the specifics of
the questions and witnesses. He may have
other witnesses in mind to ask the questions
or areas to which you are concerned about.
Moore: My question is this, then what do I
have to do to retain or to get my right to make
a decision on what questions are asked and
who’s called and not called? What do I have to
do right now to do that because I feel that I
have some very important questions that are
not being asked.
The Court: First of all, you could have hired
your own attorney. ‘This attorney has been
appointed by the court, by another judge,
whoever handled your arraignment. Now, the
8a
court appointed in this case an attorney who's
handled murder cases, high level cases, felony
one cases with great success, who understands
the law and is highly respected in the
community. Now, you could have hired your
own attorney or you can go pro se and be your
own attorney, which is of course a_ very
dubious action for anybody to take, and [|
personally, in 28 years as an officer of the
court, have never seen anybody successful in
that regard. In fact, I don’t even know of a
case in the common pleas Cuyahoga County
where someone has been successful at a trial
acting as their own attorney pro se. But you
always have that option.
Moore: So you are saying that’s the only way
that | can get all my questions--
The Court: The dream team is occupied here.
We can--
Moore: Can I go pro se?
The Court: --get Johnnie Cochran or F. Lee
Bailey.
Moore: Can I go pro se then?
The Court: You want to go at this point--
Moore: You are leaving me with no other
option. You are saying that the only way--
The Court: It is too late for that now. You
have already started with an attorney. I don’t
believe you can go mid trial.
Ya
Moore: That’s what I’m asking. I asked you
what do I have to do.
The Court: | don’t think you are in a position
to discharge your attorney. You haven't
demonstrated any knowledge of the law or
willingness to comply with the orders of the
court or understanding of the rules of
evidence.
Moore: I've tried to get--
The Court: And basic politeness. I will
entertain that thought. If you want to put it
in writing over the lunch hour, I[ will instruct
the deputies to allow you to have your paper
and pencil or pen and allow you to make a
written motion if you want to do so over this
lunch period and explain to me your plans for
trial, your strategy and -- not specific, but your
general capability of conducting a trial. I don’t
see any right now. You would not be in a
position to conduct the final argument.
Moore: Can I ask you a question?
The Court: You would be waving [sic] final
argument because you would be incapable of
presenting what a pro se final argument would
have to be. It would be, you know, a very
dubious action. Again, I have never seen it
happen. It’s theoretically possible it could
happen where it could be successful. It’s
theoretically possible that you could. It's
possible that you can be hit by a meteor.
Moore: A what?
10a
The Court: A meteor, right? Things that come
from space and they invade the earth’s
atmosphere and they hit the earth on a day-
by-day basis. I’m told. I have never seen one,
though. Not striking anyhow.
Moore: All I’m asking is for a right to call them
witnesses.
The Court: You should discuss that with your
attorney.
Moore: And ask the questions, and I’m asking
you--
The Court: You should discuss that with your
attorney.
Moore: I have over time and time again, but
witnesses keep coming and going and the
questions that I need asked are not getting
asked.
At that point the court then instructed Tobik
to proceed. Tobik then made a motion for separation
of witnesses and for the exclusion of Detective Moran
from the courtroom. After the court granted the
motion, this brief colloquy ensued:
The Court: Okay. All right. We got to handle
the other case. Have a nice lunch, everybody.
Moore: Do you need this note for the record
that I wrote this morning?
The Court: If you want to give the note, hand
it up here. The deputy will give it to me.
Moore then conveyed this earlier-prepared note to
the tnial court:
lla
Your Honor, John Moore would like to go on
record to preserve right to call back any or all
witnesses called by Prosecutor. I have many,
many Q’s that I presented to my lawyer to ask
but did not. I also want Fred King and all co-
defendants called if prosecutor doesn’t. I also
ask that Det. Moran be kept out of court since
he’ll be called as a witness.
During the lunch break Moore wrote a letter
to the trial judge as the judge had asked during the
extended colloquy quoted earlier, but no mention was
made of it by the trial judge or Tobik until the end of
the trial day:
Tobik: Your Honor, if | may, Mr. Moore per
your instructions prior to I believe it was ou[r|
luncheon break prepared a written statement.
With the court’s permission I will review it
with him and we can attach it to the record
tomorrow morning.
The Court: All right. You can type it, do
whatever you want. Think about it. Ponder
over it and we'll talk about it in the morning.
Before we start, remind me about it. Okay.
Thank you very much.
Before the jury entered the courtroom the next
morning, Moore’s attorney brought the letter to the
court’s attention:
Tobik: Your Honor, I have that letter that you
were supposed to get yesterday from Mr.
Moore.
The Court: Well. I have the first letter he sent.
ls there another letter?
Tobik: Correct.
The Court: Okay.
Moore: The one you told me to write during
lunch.
The Court: Well, send it up when you find it.
That’s all. Defense motion for Rule 29 is
overruled.
Tobik: Thank you. Can I go out and look to
see if we have the--
The Court: Here, let me read it.
Instead of the proceedings then turning to the
resolution of that subject, the transcript reflects that
immediately following that exchange the jury
entered the courtroom aiid Tobik called Moore to the
witness stand. Moore was then sworn in and began
his testimony, responding to questions from his
attorney. Here is the unacted-on letter (reproduced
verbatim):
Your Honor,
I feel that a lot of my Q’s would have promoted
facts to my defense of being coerced into
making a false confession/statement. A lot of
relevant information which could contrast
with the states position are not being brought
out due to the Q’s not being asked or iine of
Qing not being followed through to the end
I believe by asking former witnesses, the fact
that a lot of information can be brought to
light thru asking the revelavant Q. Q's to
ascertain state of mind of witnesses, intent of
l3a
witness's and the igsistance of a concerted
effort on the police behalf to hid facts and
distort truth’s. -f have given numerous lead’s
for Mr. Tobik to follow-up on but none were
done in a timely fashion to be used in my
defense. :
As for closing Arguements if you will give me
the perameters by which I have to limit my
resessatations & statements of fact I’m sure
with a reasonable amount of time (48 hrs.) I
could write a full assessment of my strategy as
well as the means to deliver it to the jury. In
closing I have tried to comply with all orders o/
the court and only wish to get both the truth
(in full) and my version of events related to the
jury before deliberations commence. I feel
that I am in a position to watch but not
participate, to witness but not contribute even
though I have firsthand knowledge ofentime
procedings. [’m if I may put it in example.
Being expected to fight a championship boxer
in a title fight with my left hand tied & my
right broken. I could still fight but the
chances of success is zero to none.
I would like to assist Bob Tobik to the best of
my abilities and on important matters of
strategy & fact toward witnesses & evidence.
But if my contributions will be continueously
ignored then I would ask that you allow him to
assist me in continueing my defense. If that
can not be accomplished, I ask that you recall
past witneses and they be asked Q’s I deem
relevant and future witnesses & evidence be
l4a
reviewed to he}p better form defense. If none
of the before mentioned requests can be
granted | ask that you read this entire
document into the record and you allow me to
proceed pro-se after a reasonable continuance
(48 hrs) for sole purpose of reviewing
documents in Prosecutor’s control and to
formulate a full encompassing strategy & to
write both closing arguement and formulate
Q’s to be asked to me when I take [the]
witness stand in my defense. This time will
also be used to familiarize myself with the
rules, protocols, and procedures of trial. My
final request is that this document not be
scrutinized by prosecution until such time as I
am. prepared to act in my own defense. I
anologize for any inappropriate behavior in
tne courtroom and will continue to conduct
myself in a respectful manner for the duration
of trial.
Thank you
John C. Moore
Sept. 14, 2000 1:00 p.m.
Thursday Written on direction of judge
Honorable Timothy McGinty
P.S. on pg. #3
J also request that | be allowed to apologize to
jthe] jury and they be made fully aware of why
the earlier incident took place and the
resolution [was] decided and why.
Sincerely
John C. Moore
15a
P.S. I
This should in no way reflect negatively on
Mr. Robert Tobik who I hold in high regard
and respect immensely. I just feel my defense
should be handled a little differently and since
the eventual outcome will impact me the most
that I should have input into strategy &
decision making [it] part of my defense.
Well into Moore’s direct testimony, the trial
judge held a sidebar regarding a hearsay objection
and raised the contents of the letter to the prosecutor
and Moore’s defense counsel:
The Court: Now, while we’re at the side bar,
we have -- whatever you think is necessary in
the defense. | have a letter from him in which
he vacillates the letter given to me a minute
ago.
Tobik: I believe he also asked you not to share
that with the prosecutor.
Prosecutor: Of course the prosecutor demands
to see that letter. It is a communication to the
court. | demand that I see it.
The Court: You don’t see that that would
compromise any defense strategies here? It
has the potential for doing so. But, he wants
to participate in closing arguments. He
doesn’t specifically ask to take over his own
defense.
Tobik: I think he does. He wants to take over
from that point.
16a
The Court: He wants to and he later says he
would hke to go pro se, but I’m not sure. He
wants to go as cocounsel apparently, but, he
got up on the witness stand so I don’t know if
that’s an abandonment of what he just gave
me beforehand or what.
Anyway, we will discuss it with him. We told
him in the last trial, and I told him in this
trial he is allowed -- I will give him a chance to
make a speech at the end of your examination.
If he wants to make a statement outside of
what he said, he can but he is subject -- I’m
sure you advised him he is subject to cross-
examination and will be subject to all the rules
of evidence and all the doors he may open on
himself.
Tobik: I think--
The Court: That’s the danger of making such a
statement.
Tobik: Right. You know, of giving a speech,
but he can do so if he wants.
Tobik: I think he understands the procedures
and the rules in the court and, you know, I
think he would be responsive to both my
questions and Mr. Mahoney’s questions.
The Court: We will inquire of him later on
again to see where he is at. I can’t make
heads or tails trom that letter, the
combination of the letter and his actions here
getting up on the witness stand.
17a
After direct and partial cross-examination of
Moore, the court called for a break. During that
break this dialogue occurred outside the presence of
the jury:
The Court: Have a seat, everybody, please.
Now, the court received your letter here this
morning. I read it after you got on the witness
stand, Mr. Moore, and you have asked a couple
of things. I’m not quite sure what you want,
but you wanted a chance to address the jury.
The court would certainly give you that. You
had the chance. Your attorney asked is there
anything you wanted to say. You gave your
statement. That is what you are looking for.
Do you want to impress the jury again at end
of this?
Moore: I think it’s appropriate in light of I
interrupted the proceedings.
The Court: You want to address the jury and
apologize you said for interrupting the
proceedings?
Moore: Right.
The Court: Okay. Well, that’s fine. You can
do that. 1| will allow you to do — you would
have a redirect. You can ask him the question
if he has something to say to the jury.
Moore: Not just the jury. It was you, too.
The Court: Your apology is accepted here. You
don’t have to apologize to me in front of the
jury. Now, if you want to do it to the jury, it’s
your business. I don’t care about it or you can
18a
ask that open-ended question. Again, that
would subject you to cross-examination for
whatever you say of course.
Tobik: Your Honor--
The Court: So you talk it over and whatever
you want to do, that’s fine. Okay. Have a nice
break here.
When the jury returned, an officer in the
Scientific Investigation Unit of the Cuyahoga County
Sheriffs Department was examined and then the
court took a lunch break. After the lunch break the
prosecutor continued with cross-examination of
Moore. Upon completion of redirect and recross-
examination of Moore, the defense rested. Tobik
presented Moore’s closing argument. No further
mention of Moore's letter or request to proceed pro se
appears in the trial transcript. Moore was found
guilty by the jury on the three counts against him.
Moore's conviction was affirmed by the Court
of Appeals of Ohio (although the imposition of
consecutive sentences was reversed and remanded
for resentencing), and the Supreme Court of Ohio
denied leave to appeal. Moore then petitioned for a
writ of habeas corpus from the United States District
Court for the Northern District of Ohio. Adopting
the magistrate judge’s Report and Recommendation,
the district court granted Moore a conditional writ of
habeas corpus, subject to retrial by the state,
grounded in the denial of his right to self-
representation. Warden Haviland filed a timely
notice of appeal to this court.
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II. Standard of Review
We review a district court’s legal conclusions
in a habeas petition de novo (King v. Bobby, 433 F.3d
483, 489 (6th Cir. 2006)). Although findings of fact
are usually reviewed for clear error, “when the
district court’s decision in a habeas case is based on a
transcript from the petitioner’s state court trial, and
the district court thus makes ‘no credibility
determination or other apparent finding of fact,’ the
district court’s factual findings are reviewed de novo”
(Wolfe v. Brigano, 232 F.3d 499, 501 (6th Cir. 2000),
quoting Moore v. Carlton, 74 F.3d 689, 691 (6th Cir.
1996)). We assume factual findings of the state court
are correct unless controverted by convincing
contrary evidence (Harries v. Bell, 417 F.3d 631, 635
(6th Cir. 2005)). ,
Under 28 U.S.C. §2254(d) (“Section 2254(d)”) it
is appropriate to grant a prisoner’s habeas petition if
the adjudication of the claim in the state court
system:
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of,
clearly established Federal law, as determined
by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in
light of the evidence presented in the State
court proceeding.
Some elaboration of those alternatives will
better focus the analysis.
First, law is “clearly established” from “the
holdings, as opposed to the dicta, of [the Supreme]
20a
Court's decisions as of the time of the relevant state-
court decision” (Williams v. Taylor, 529 U.S. 362, 412
(2000)). As for the statutory requirement that the
state decision be “contrary to” such “clearly
established” federal law, that condition is satisfied “if
the state court arrives at a conclusion opposite to
that reached by [the Supreme] Court on a question of
law or if the state court decides a case differently
than [the Supreme] Court has on a set of materially
indistinguishable facts” (id. at 413).
Second, “unreasonable application” of clearly
established federal law occurs “if the state court
identifies the correct governing legal principle from
[the Supreme] Court’s decisions but unreasonably
applies that principle to the facts of the prisoner’s
case” (id.). Merely erroneous or incorrect application
of clearly established federal law does not suffice to
support a grant of habeas relief. Instead the state
court must be objectively unreasonable as well as
erroneous in its application of clearly established
federal law (id. at 409-11).
III. Constitutional Right to Self-
Representation
Although courts are most frequently called
upon to deal with and to enforce the Sixth
Amendment guaranty that every criminal defendant
facing potential incarceration has the right to
counsel at all “critical stages” of the criminal process
(United States v. Wade, 388 U.S. 218, 223-27 (1970);
Argersinger v. Hamlin, 407 U.S. 25 (1972)), the
Constitution also affords--with equal importance--the
right to self-representation (Faretta v. California,
Zila
422 U.S. 806 (1975)).2_ Those two rights are mutually
exclusive, and invocation of one is_ necessarily
intertwined with waiver of the other. Just as had
earlier been done with the right to counsel (Gideon uv.
Wainwright, 372 U.S. 335 (1963)), Faretta
incorporated against the states a_ criminal
defendant’s right to self-representation via the
Fourteenth Amendment’s Due Process Clause.
Faretta, 422 U.S. at 819-20 (footnote omitted), the
only clearly established federal law (within the
meaning of Section 2254(d)(1)) that is relevant to
this habeas petition, confirmed that right in these
straightforward terms:
Although not stated in the Amendment in so
many words, the right to self-representation--
to make one’s own defense personally--is thus
necessarily implied by the structure of the
Amendment. The right to defend is given
directly to the accused; for it is he who suffers
the consequences if the defense fails.
Waiver of the right to counsel by an accused
must be knowing, voluntary and intelligent (Johnson
vu. Zerbst, 304 U.S. 458, 464-65 (1938)). For any such
waiver to be effective, the accused “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” (Faretta, 422 U.S. at 835, quoting
* Nothing in last month’s teaching by the Supreme Court as to
the scope of the Faretta-stated rmght under wholly different
circumstances (Jndiana v. Edwards, 554 U.S. , 128 S.Ct.
2379 (2008)) impacts on the decision here.
22a
Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942).
For his part, Haviland contends that Moore’s
request to proceed pro se was unclear and equivocal,
so that the trial judge was not required to engage in
any further exploration of the matter. To the
contrary, Moore twice expressly asked the judge
whether he could “go pro se.” Instead of responding
directly or promptly launching the necessary
Faretta-based inquiry, the judge responded by
warning Moore that he had never seen a successful
pro se defendant and by then asking Moore to draft a
letter over the lunch break outlining his competence
and trial strategy. Moore did so, but his attorney--
with the court’s permission--did not tender the letter
to the court until the following morning.
Moore’s letter set out four alternative
scenarios, the fourth of which was to proceed pro se.?
With the trial judge having failed to grant any of
Moore's first three alternatives, he was duty bound
to treat the letter as a clear request to proceed pro
se, written by the accused after the court had
cautioned him against the soundness of that
decision. Moore’s request to proceed pro se was no
less voluntary because it was contingent on the
denial of other options that he might also find
> Significantly, each of the other three alternatives involved
substantial personal involvement in his defense by Moore
himself Thus the final request for outright pro se
representation was not at all an introduction of a new concept,
but rather carried forward the same unequivocal assertion that
Moore had conveved in the oral colloquy first quoted in this
opinion
23a
palatable (Jones v. Jamrog, 414 F.3d 585, 592-93
(6th Cir. 2005)). While the state appellate court did
not explicitly hold that Moore asked unequivocally to
proceed pro se, it did state “that he wished to proceed
pro se” and “requested permission to proceed pro se
in his letter to the court” (State v. Moore, No. 78751,
2002 WL 664104, at *4-*5 (Ohio App. Apr. 18, 2002)).
Although the trial judge expressed an initial
concern as to the timeliness of Moore’s request, he
backed off that track and instead told Moore to write
him a letter outlining his_ proposed _ self-
representation. For the judge then to have waited to
read the letter until Moore had already taken the
witness stand, rather than addressing the issue
promptly, gave Moore no choice but to proceed with
counsel conducting direct examination. Then for the
judge not to have engaged Moore in a Faretta-
compliant colloquy upon reading the letter was an
unreasonable application of Faretta. Moore had
made not one but two clear requests to proceed pro
se--the second in a letter written after cautionary
statements by the court--and it was clearly contrary
to Faretta for the court to have failed to address
those requests promptly and fully.
Warden Haviland argues that Moore's
requests were untimely and that a trial court has
discretion over whether to grant a request to proceed
pro se mid-trial. But Moore's requests were not
rejected for untimeliness, either at trial or by the
state appellate court. Although the state courts did
not do so, our dissenting colleague would reject
Moore’s exercise of his Faretta right on untimeliness
grounds. We have no quarrel of course with the
24a
notion that a defendant’s invocation of the right of
self-representation must be timely--but here it was
not until the trial was well under way that Moore’s
grounds for dissatisfaction with counsel’s
representation arose--and he then acted swiftly.
Moore can scarcely be faulted on some concept of
tardiness under those circumstances. If he had not
acted when he did--if he had waited for the trial to
conclude and then sought postconviction relief on the
basis of constitutionally ineffective representation by
his appointed counsel--we can be quite certain that
he would have been met not only with arguments as
to asserted substantive inadequacies of that
contention but with the added argument that he
should have raised that issue when it first arose at
trial.
To return to the treatment at the trial court
level of Moore’s requests to represent himself, the
trial court flat-out failed to exercise its discretion and
ultimately did not rule on those requests, but let the
issue go by default instead. Such failure to make a
ruling on a criminal defendant’s unequivocal request
to proceed pro se was objectively unreasonable in
light of Faretta.
Contrary to Haviland’s assertions and to the
state appellate court’s analysis, McKaskle v. Wiggins,
465 U.S. 168 (1984) is not on point here. McKaskle
addresses the constitutional boundaries of standby
counsel's involvement in criminal proceedings
against the wishes of a pro se defendant. Moore
never became a pro se defendant, nor was his
attorney standby counsel. Moore does not complain
that his attorney overstepped his bounds as standby
25a
counsel--rather he complains that he was denied his
right of self-representation. For the state appellate
court to read McKaskle to find a waiver of Moore’s
right to self-representation was an _ objectively
unreasonable application of that decision.
Moore did take the stand and respond to
questions from his attorney after his request to
proceed pro se. But by contrast with McKaskle, no
presumption of acquiescence attaches to that
representation by counsel, because Moore was never
permitted to proceed pro se. Without having ruled
on Moore’s two requests for self-representation, the
trial judge told Moore's attorney to call the next
witness and Moore was called to testify. It would be
wholly unreasonable to require Moore, in order to
preserve his requests to proceed pro se, to refuse the
trial court’s orders to continue with the trial,
especially in light of the court’s having previously
admonished him for disrupting the trial. Moore’s
responsiveness to questions posed by his attorney
was neither a withdrawal of his previous requests to
proceed pro se or a waiver of his right to self-
representation.
IV. Conclusion
Given the state courts’ objectively
unreasonable misapplication of the law as clearly
established in Faretta, Moore’s habeas petition must
be granted. By failing to rule on Moore’s unequivocal
requests to proceed pro se, the trial court deprived
him of his Sixth Amendment right to self-
representation. Moore’s conviction cannot stand in
light of that structural error, which “is not amenable
to ‘harmless error’ analysis” (McKaskle, 465 U.S. at
26a
177 n.8). Accordingly the district court’s issuance of
a conditional writ of habeas corpus is AFFIRMED.
DISSENT
ROGERS, Circuit Judge, dissenting. Where a
criminal defendant waits until the final day of trial
to invoke his right to self-representation, a trial
judge does not unreasonably apply _ clearly
established federal law in declining to grant that
request. Therefore, I would reverse the order
granting a conditional writ of habeas corpus here.
Faretta v. California, 422 U.S. 806 (1975),
upon which Moore relies for relief, did not announce
an unqualified right to self-representation. In
holding that a defendant’s rights were violated when
he was not permitted to proceed pro se, the Supreme
Court stressed not only that his request for self-
representation was made “clearly and
unequivocally,” id. at 835, but that it was made far
in advance of trial. The Court mentioned the timing
of the defendant’s request no fewer than three times,
noting that the request was made “[wlell before the
date of trial,” id. at 807, and “weeks before trial,” id.
at 835, and that a hearing on the motion was held
“Isjeveral weeks thereafter, but still prior to trial,”
id. at 808. The Court then concluded the opinion by
holding that “[iJn forcing Faretta, under these
circumstances, to accept against his will a state-
appointed public defender, the California courts
deprived him of his constitutional right.” Jd. at 836
(emphasis added). Thus, although the Supreme
27a
Court did not explicitly impose a_ timeliness
requirement, it “incorporated the facts of Faretta into
its holding.” Marshall: v. Faylor, 395 F.3d 1058, 1061
(9th Cir. 2005); see also United States v. Young, 287
F.3d 1352, 1354 (11th Cir. 2002) (“The Court
mentioned the timeliness of the request in both the
opening paragraphs and the breadth with which the
Court announced its decision.”).
Accordingly, as the Supreme Court has
recognized, “most courts” have interpreted Faretta to
require that a defendant assert his right to self-
representation “in a timely manner.” Martinez uv.
Court of Appeal of Cal., Fourth Appellate Dist., 528
U.S. 152, 161-62 (2000); see also, e.g., Wood v.
Quarterman, 491 F.3d 196, 201-02 (5th Cir. 2007);
United States v. Edelmann, 458 F.3d 791, 808 (8th
Cir. 2006); United States v. Young, 287 F.3d 1352,
1353-55 (11th Cir. 2002): United States v. Martin, 25
F.3d 293, 295-96 (6th Cir. 1994); United States v.
Brown, 744 F.2d 905, 908 (2d Cir. 1984); United
Siates v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.
1979). This view is consistent with the traditional
rule that a defendant’s right to represent himself “is
sharply curtailed” once a trial begins. See United
States ex rel. Maldonado v. Denno, 348 F.2d 12, 15
(2d Cir. 1965). Under this rule, which Faretta did
not purport to alter, the decision of whether to grant
a motion to proceed pro se made after trial has begun
is left to the “sound discretion of the trial court.”
Lawrence, 605 F.2d at 1324; see also Robards v. Rees,
789 F.2d 379, 384 (6th Cir. 1986).
This court, like most others, has consistently
declined to find constitutional error in the denial of a
28a
request for self-representation made after the
initiation of meaningful proceedings. In Robards v.
Rees, 789 F.2d at 383-84, for example, this court held
that the denial of a defendant’s pro se request did not
violate his rights where that request was made after
the jury was sworn in and roll had been called. The
grant of such an untimely request, this court held,
“would have impermissibly delayed the
commencement of the trial.” /d. at 384. Although
this court also noted that the defendant had not
exhibited a genuine desire to represent himself, id.
at 383-84, our subsequent decisions have made clear
that tardiness alone is sufficient grounds for denying
a motion for self-representation. In United States v.
Conteh, 234 F. App’x 374, 381 (6th Cir. 2007), we
held that it was not an abuse of discretion to deny a
request made “after trial began,” stating simply that
“|t]he motion was untimely.” See also United States
v. Pleasant, 12 F. App’x 262, 266-67 (6th Cir. 2001)
(motion was properly denied where made “on the day
of trial with prospective jurors standing outside of
the courtroom”); Martin, 25 F.3d at 295-96 (denial of
motion made “after the trial was in full swing [was] a
fortiori a proper exercise of discretion”).
If it was constitutional to deny the right to
self-representation in those cases, then surely the
same was permissible here. Moore did not even
express interest in proceeding pro se until the fourth
day of a five-day trial, and did not make a request to
do so that was even arguably clear until the fifth and
final day of trial. Moreover, there is no doubt that
granting Moore’s request would have _ seriously
derailed the proceedings. In his note to the trial
judge, for example, Moore acknowledged that he
29a
would need to “review{] documents in [the]
Prosecutor's control,” “formulate a_ full [and|
encompassing strategy,” “formulate [questions] to be
asked of [him] when [he took the] witness stand,”
and “write the closing argument.” While one must
suspect that a longer period would have been needed,
even the two-day continuance that Moore requested
to allow for the completion of these tasks would have
caused a significant disruption. ‘Though the state
trial judge never made a formal ruling on Moore’s
motion for self-representation, his decision not to
grant Moore’s request was in effect a denial.
Timeliness, moreover, cannot be measured
from when a defendant perceives the need to
represent himself. See Stenson v. Lambert, 504 F.3d
873, 879, 884-85 (9th Cir. 2007). Supreme Court
precedent does not provide defendants with a right to
demand self-representation based on “dissatisfaction
with counsel’s representation” arising during the
trial. See Maj. Op. at 10. Recognition of such a right
would effectively do away with any meaningful
timeliness requirement. Habeas relief accordingly
cannot be granted on this ground.
And, because the state trial judge could have
simply denied Moore’s motion as untimely, it is not
an objectively unreasonable application of clearly
established federal-law to conclude that a Faretta
hearing was not necessary. Just as nothing in
Faretta requires a court to grant a motion for self-
representation made after meaningful proceedings
commence, nothing in that decision, or any other
Supreme Court case, mandates that a hearing be
held on such an untimely request. Thus, although it
30a
may have been preferable for the state trial judge to
have engaged in a Faretta inquiry and to have ruled
formally on Moore’s motion, his failure to have done
so does not warrant issuance of the writ.
That the state court of appeals did not base its
decision on the untimeliness of Moore’s request does
not prevent reliance on that ground now. Here, as
the magistrate Report and Recommendation adopted
by the district court acknowledges, the state court of
appeals “did not analyze whether the trial court
properly handled Moore’s request to represent
himself under the clearly established federal law
announced in Faretta.” That court never, for
example, inquired into whether Moore’s alleged pro
se requests were unequivocal or vague, as Faretta
clearly requires. Moreover, the state court of appeals
appears to have examined Moore’s claims under
state cases instructing judges how to respond to trial
complaints of ineffective assistance of counsel.
In a situation such as this, where the most
recent state adjudication “does not squarely address
the federal constitutional issue in question, but its
analysis bears ‘some similarity’ to the requisite
constitutional analysis,” Filiaggi v. Bagley, 445 F.3d
851, 854 (6th Cir. 2006), a habeas court must conduct
an independent inquiry of the record and applicable
law, and may reverse only if the state court result
was contrary to or an unreasonable application of
federal law, Maldonado v. Wilson, 416 F.3d 470, 475-
76 (6th Cir. 2005). This modified form of AEDPA
deference allows, and indeed requires, a federal court
to deny habeas relief on any rationale that the record
3la
will support, even one that was not directly relied
upon.
32a
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN C. MOORE, JR.
Petitioner,
-Vs-
JAMES HAVILAND, Warden,
Respondent.
CASE NO. 1:04 CV 0242
ORDER AND OPINION
ADOPTING REPORT AND RECOMMENDATION
AND GRANTING A CONDITIONAL
WRIT OF HABEAS CORPUS
Dated: February 28, 2007
UNITED STATES DISTRICT JUDGE LESLEY
WELLS
On 11 February 2004, petitioner John C.
Moore, Jr. filed with this Court a petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
(Docket No. 1). Mr. Moore’s habeas petition was
referred to United States Magistrate Judge William
H. Baughman for a Report and Recommendation
(“R&R”). (Docket No. 7). The R&R recommends that
this Court grant a conditional writ of habeas corpus
33a
on the grounds that the state trial and appellate
courts acted contrary to Mr. Moore’s Sixth and
Fourteenth Amendment rights of self-representation.
(Docket No. 32). The respondent filed objections to
this recommendation, urging this Court to deny Mr.
Moore’s petition (Docket No. 34), and the petitioner
responded in support of the Magistrate Judge’s
recommendations (Docket No. 35).
For the reasons set forth below, the court will
adopt Magistrate Judge Baughman’s R&R and grant
a conditional writ of habeas corpus, subject to Mr.
Moore being re-tried by the state.
I. BACKGROUND
In September 2000, petitioner John Moore was
tried in the Cuyahoga County Common Pleas Court
for crimes stemming from a robbery at the Hard
Rock Cafe in Cleveland, Ohio. State v. Moore, 2002
WL 664104 at *1 (Ohio App. 8 Dist. April 18, 2002).
The State of Ohio presented evidence to prove that
Mr. Moore and an accomplice arrived at the
restaurant early on a Sunday morning, held a gun to
the kitchen manager’s head and demanded money,
and then tied up the kitchen manager and another
employee with duct tape before leaving. Jd.
The Eighth District Court of Appeals related
the following relevant discussions which took place
on the third and fourth day of Mr. Moore’s trial:
On September 14, after several days of trial,
immediately following a break in which the
attorney was instructed to discuss whether or
not a certain witness should be called, defense
counsel approached the bench and stated,
my client has given me a request of
instructions and I have informed him
that this is not the appropriate time to
place this on the record. And I'm telling
the court that I would like time after the
State's case and before our case, but he
has some things which I think they are
perhaps dissatisfaction with the way I'm
representing him that he would like to
tell the court or have me tell the court.
THE COURT: Well, that's all very nice. You
know, we will certainly take that al] into
account. Thank you. Let's go.
The court then tried to proceed with trial, but
defendant repeatedly interrupted. He stated,
“IT asked [my attorney] to deliver a letter. |
don't think he gave it to you.” The court
informed him that it was not the appropriate
time for this discussion, to which defendant
replied, “Excuse me, your Honor, before we
start up, I want to make sure | preserve-.”
The court interrupted him and told him not to
speak in front of the jury. The court then said
“When we are at a break, we will have
another-.” Defendant then interrupted the
court and said, “we were at a break. He
handed you a note.”
Following [a] discussion of the events of a trial
of a co-defendant, the court informed
defendant that he could say whatever he
wanted when he testified. Defendant
attempted to clarify that “[t]hese are questions
for witnesses that were already here.” The
35a
court told him to be quiet and that he could
say anything he wanted to on the witness
stand.
Defendant responded, “I'm trying to
communicate with the court but nobody is
letting me.” The court again ordered him to
stop speaking until the jury was no longer in
the room.
Later that day, the court spoke on the record
with the defendant outside the presence of the
jury. Defendant again explained that his
attorney was not asking questions he
considered necessary for his defense and that
he had written a note to the judge informing
him of it. The judge acknowledged that he had
not seen defendant's note and told defendant
that although he could suggest questions to
his counsel, counsel “is the one who makes
that decision as to the specifics of the
questions and witnesses.”
Defendant asked, “then what do I have to do to
make a decision on what questions are asked
and who's called and not called? What do I
have to do right now to do that because I feel
that I have some very important questions
that are not being asked.” The court
responded by telling him first that his court-
appointed counsel was very qualified and “is
highly respected in the community.”
The court went on to tell him, “[nlow you could
have hired your own attorney or you can go
pro se and be your own attorney * * *.” He
36a
then discouraged defendant from going pro se,
stating that he had never seen anyone succeed
pro se. Nevertheless, defendant then asked
repeatedly to go pro se.{']
1 This part of the colloquy in its entirety is recorded as follows
in the trial transcript:
The Court: Now, you could have hired your own attorney or
you can go pro se and be your own attorney,
which is of course, a very dubious action for
anybody to take, and I personally, in 28 years as
an officer of the court, have never seen anybody
successful in that regard. In fact, 1 don’t even
know of a case in Cuyahoga County where
someone has been successful at a trial acting as
their own attorney pro se. But you always have
that option.
The Defendant: So you are saying that’s the only way
that I can vet all my questions —
The Court: The dream team is occupied here. We can
The Defendant: Can I| go pro se?
The Court: get Johnnie Cochran or F. Lee Bailey.
The Defendant:Can I go pro se then?
The Court: You want to go at this point —
The Defendant: You are leaving me with no other option.
You are saying that the only way ~
The Court: It is too late for that now. You have already
started with an attorney. I don’t beheve you can
go mid trial.
The Defendant: That’s what I’m asking. | asked you
what do I have to do.
The Court: I don’t think you're in a position to discharge
your attorney. You haven't demonstrated any
knowledge of the law or willingness to comply
37a
The court first told him “fi]ts too late for that
now.
You have already started with an
attorney. I don't believe you can go mid trial.”
|] The court also stated that defendant had
The Defendant:
The Court:
The Defendant:
The Court:
The Defendant:
The Court:
(Docket No. 20.
with the orders of the court or understanding of
the rules of evidence.
I've tried to get —
And basic politeness. I will entertain that
thought. If you want to put it in writing over
the lunch hour, I will instruct the deputies to
allow you to have your paper and pencil or pen
and allow you to make a written motion if you
want to do so over this lunch period and explain
to me your plans for trial, your strategy and —
not specific, but your general capability of
conducting a trial. [I don’t see any right now.
You would not be in a position to conduct the
final argument.
Can [ ask you a question?
You would be waiving final argument hecause
you would be incapable of presenting what a pro
se final argument would have to be. It would
be, you know, a very dubious action. Again, |
have never seen it happen. It’s theoretically
possible it could happen where it could be
successful. It’s theoretically possible that you
could. It’s possible that you can be hit by a
meteor.
A what?
A meteor, right? Things that come from space
and they invade the earth's atmosphere and
they hit the earth on a day-by-day basis. I'm
told. I have never seen one though. Not
striking anyhow
Tr. 842-845).
38a
not “demonstrated any knowledge of the law
or willingness to comply with the orders of the
court or understanding of the rules of
evidence.” [ ] At that point defendant gave the
brief note to the judge stating his complaints
about his attorney.*N!
FNl. The note states, “Your Honor, John
Moore would like to go on record to
preserve right to call back any or all
witnesses called by Prosecutor. I have
many, many Q's that I presented to my
lawyer to ask but did not. I also want
Fred King and all co-defendants called if
prosecutor doesn't. I also ask that Det.
Moran be kept out of court since he'll be
called as a witness.”
The court then changed its position and told
defendant to write and submit his request
during the lunch break, including “your plans
for trial, your strategy, * * * your general
capability of conducting a trial” and stated it
would review the request. Defendant
reiterated that all he wanted was “a right to
cal] them witnesses.” | |
After the lunch break, defense counsel told the
court that defendant had given him the
“written statement. With the court's
permission I will review it with him and we
can attach it to the record tomorrow morning.”
The court instructed counsel to remind it
about the letter before trial began in the
morning. ‘The court then proceeded with the
cross-examination of one of the detectives.
39a
The next morning counsel informed the court
that he had the letter the court had instructed
defendant to write. The court responded,
“Well, I have the first letter he sent. Is there
another letter?” The court was informed that
the letter in discussion was the one he
instructed defendant to write during the
previous day's lunch break. The court
responded, “[|wJell, send it up when you find it.
That's all. * * *” The court accepted the letter
and then ordered the jury into the room.[?]
2 The letter from defendant stated:
uK**
Your Honor,
I feel that a lot of my Q’s would have promoted facts to
my defense of being coerced into making a false
confession/statement. A lot of relevant information which could
contrast with the states (sic) position are not being brought out
due to the Q’s not being asked or line of Qing not being followed
through to the end.
I believe by asking former witnesses, the fact that a lot
of information can be brought to light thru asking the relevant
[sic] Q. Q’s to ascertain state of mind of witnesses, intent of
witness's and the igsistance [sic] of a concerted effort on the
police behalf to hid [sic] facts and distort truth’s [sic]. I have
given numerous lead’s [sic] for Mr. Tobik to follow-up on but
none were done in a timely fashion to be used in my defense.
As for closing Arguements [sic] if you will give me the
perameters [sic] [boundries] by which |] have to limit my
resessatations [sic] & statements of fact I'm sure with a
reasonaule amount of time (48 hrs.) | could write a full
assessment of my strategy as well as the means to deliver it to
the jury. In closing I have tried to comply with all orders of the
court and only wish to get both the truth (in full) and my
version of events related to the jury before deliberations
commence. | feel that | am in a position to watch but not
40a
The defense then began its case, calling the
defendant as a witness.
Later that day while at a side bar, the court
stated “while we’re at the side bar, we have-
whatever you think is necessary in the
participate, to witness but not contribute even though I have
firsthand knowledge ofentime [sic] procedings [sic]. I'm if I may
put it in example. [sic] Being expected to fight a championship
boxer in a title fight with my left hand tied & my right broken.
I could still fight but the chances of success is {sic} zero to none.
I would like to assist Bob Tobik to the best of my abilities and
on important matters of strategy & fact toward witnesses &
evidence. But if my contributions will be continueously [sic]
ignored then I would ask that you allow him to assist me in
continueing [sic] my defense. If that can not be accomplished, |
ask that you recall past witneses and they be asked Q's I deem
relevant and future witnesses & evidence be reviewed to help
better form defense. If none of the before mentioned requests
can be granted I ask that you read this entire document into
the record and you allow me to proceed pro-se [ sic | after a
reasonable continuance (48 hrs) for sole purpose of reviewing
documents in Prosecutor's control and to formulate a full
encompassing strategy & to write both closing arguement [sic ]
and formulate Q's to be asked to me when I take [the] witness
stand in my defense. This time will also be used to familiarize
myself with the rules, protocols, and procedures of trial. My
final request is that this document not be scrutinized by
prosecution until such time as I am prepared to act in my own
defense. I apologize for any inappropriate behavior in the
courtroom and will continue to conduct myself in a respectful
manner for the duration of trial.
Thank you
John C. Moore
Sept. 14, 2000 1:00 p.m.
Thursday Written on direction of judge Honorable Timothy
McGinty.
***
4la
defense. I have a letter from him in which he
vacillates [ sic ] the letter given to me a
minute ago.” -The court then states that
defendant “doesn’t specifically ask to take over
his own _ defense.” Defense attorney
contradicts the court saying he thinks that the
defendant does want to take over his own
defense. The court responds, “He wants to and
he later says he would like to go pro se, but
I’m not sure. He wants to go as cocounsel [sic ]
apparently, but, he got up on the witness
stand so I dont know if that’s’ an
abandonment of what he just gave me
beforehand or what.
Anyway, we will discuss it with him. We told
him in the last trial, and I told him in this
trial he is allowed-I will give him a chance to
make a speech at the end of your examination.
If he wants to make a statement outside of
what he said, he can ***.”
Finally, the court said “[w]e will inquire of him
later on again to see where he is at. I can't
make heads or tails from that letter, the
combination of the letter and his actions
getting up on the witness stand.”
During another’ break in_ defendant’s
testimony, the court addressed the defendant
on the record while the jury was out of the
room. The court stated:
Now, the court received your letter here
this morning. I read it after you yot on
the witness stand, Mr. Moore, and you
42a
have asked a couple of things. I’m not
sure what you want, but you wanted a
chance to address the jury. The court
would certainly give you that. You had
the chance. Your attorney asked is there
anything you wanted to say. You gave
your statement. This is what you are
looking for. Do you want to impress the
jury again at the end of this?
Defendant replied that he wished to apologize
to the jury and the court for his interruptions.
The court reminded him that he would be
opening himself up to cross-examination.
Defense counsel began to speak, “Your Honor”-
but the court interrupted him saying, “[s]o you
talk it over and whatever you want to do,
that’s fine. Okay. Have a nice break here.”
Nothing further was said about defendant’s
request.
Moore, 2002 WL 664104 at **2-4.
The jury convicted Mr. Moore of aggravated
robbery and two counts of kidnapping, all with
firearm specifications, and the trial court imposed
maximum and consecutive sentences. /d. at *1.
Mr. Moore appealed his conviction to the Ohio
Court of Appeals, raising eight assignments of error,
including denia! of the constitutional rights to
effective assistance of counsel, self-representation,
due process and a fair trial, as well as denial of his
right to cross-examine witnesses and _ confront
witnesses. Moore, 2002 WL 664104. The state
appellate court affirmed Mr. Moore's conviction,
43a
finding seven of his eight assignments of error
without merit. The appellate court did find that the
trial court violated Mr. Moore’s right to due process
when it failed to making a finding that the
consecutive sentences imposed were not
disproportionate to the offense. Mr. Moore’s
sentence was’ reversed and remanded for
resentencing. Jd. at 14. The Ohio Supreme Court
denied leave to appeal on 29 January 2003. (Docket
No. 1).
Mr. Moore now petitions this Court for a writ
of habeas corpus to remedy four alleged
constitutional violations:
i. The trial court deprived the petitioner’s
Sixth and Fourteenth Amendment right
to self-representation;
4 The trial court deprived the vetitioner’s
Sixth Amendment right to effective
assistance of counsel when it failed to
make an adequate and timely inquiry
into Petitioner Moore’s complaints;
3. The petitioner was’ denied his
constitutional rights to cross-examine
witnesses when the trial court
improperly overruled his motion
asserted under Ohio Crim. R.
16(b)(1)(g); and
4, The petitioner's Sixth Amendment right
to confront a witness was denied when
the trial court permitted a police officer
to testify by reading from a_ police
report.
44a
(Docket Nos. 12, 26).
li. REPORT & RECOMMENDATION
This matter was referred on 24 February 2004
to Magistrate Judge Baughman for an R&R. (Docket
No.7). Magistrate Judge Baughman filed his R&R
on 27 July 2006. (Docket No. 32). Concluding that
Mr. Moore’s first ground for relief is meritorious, the
Magistrate Judge advises that Mr. Mcere should be
granted a conditional writ, subject to being re-tried
by the state. The R&R further recommends that
ground two be dismissed as moot and that grounds
three and four be dismissed as time-barred.
With regard to Mr. Moore’s first claim for
relief, the R&R relied on Faretta v. California, 422
U.S. 806 (1975) and McKaskle v. Wiggins, 465 U.S.
168 (1984) in breaking down its legal analysis into
three steps: (1) whether the defendant made a clear,
unambiguous and timely assertion of his right to
self-representation; (2) whether the record
demonstrates that the defendant’s assertion was a
knowing and voluntary waiver of his right to be
represented by counsel; and (3) whether’ the
defendant knowingly and voluntarily acquiesced to
representation after asserting his right to self-
representation. (Docket No. 32 pp. 19-20). The R&R
recommends finding that although the state
+ Mr. Moore was represented by counsel when he filed his
initial habeas petition which listed only the first and second
grounds for relief. Although Mr. Moore continues to be
represented by this same counsel, Mr. Moore subsequently
motioned this Court pro se to amend his petition to include the
third and fourth grounds for relief. (Docket No. 26). The Court
granted the motion.
45a
appellate court reasonably applied federal law when
it implicitly found that Mr. Moorc asserted his right
to self representation, the appellate court
unreasonably concluded that the trial court made the
appropriate inquiry into Mr. Moore’s request to
proceed pro se.
The respondent vigorously objected to
Magistrate Judge Baughman’s R&R, arguing that,
(1) the state appellate court did not make an implicit
finding that Mr. Moore’s actions constituted an
invocation of his right to self-representation, (2) the
Magistrate Judge erred in mandating a distinct
three-step analysis of self-representation claims that
is not employed by the Supreme Court or the Sixth
Circuit; and (3)the Magistrate Judge ignored the
Supreme Court’s holding in Wiggins. (Docket No.
34).
Under Fed. R. Civ. P. 72(b) and 28 U.S.C. §
636 (b)(1)(C), this Court reviews de novo those
portions of the Magistrate Judge’s R&R to which
specific objections are made. Upon review, this
Court “may accept, reject, or modify, in whole or in
part, the findings and recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1). In the
Sixth Circuit, objections to a magistrate judge’s R&R
“must be clear enough to enable the district court to
discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th
Cir. 1995).
As Mr. Moore does not object to the R&R’s
recommendation that grounds two through four of
his petition be denied, the Court will adopt the
Magistrate Judge’s recommendation on_ these
46a
grounds without further review. Thus, this Court
will only review de novo the portion of the R&R to
which the respondent objects, that the state trial and
appellate courts acted contrary to Mr. Moore’s right
to self-representation.
II. LAW AND ANALYSIS
The Sixth Amendment guarantees criminal
defendants the right to counsel and the right of self-
representation in criminal proceedings. Faretta, 422
U.S. 806. These two rights are correlative in that the
right to the latter is conditional on the waiver of the
former. United States v. Conder, 423 F.2d 904, 908
(6th Cir. 1970) (“The right to defend pro se and the
right to counsel have been aptly described as two
faces of the same coin.” Internal quotations
omitted.). Accordingly, a criminal defendant shall be
permitted to represent himself only after he
“knowingly and intelligently” relinquishes his right
to counsel. Faretta, 422 U.S. at 835 (citing the well-
established standard set forth in Johnson v. Zerbst,
304 U.S. 458, 464-65 (1938)). The Supreme Court
directs ‘rial courts to serve in a protective role when
a defendant asserts his right to proceed pro se:
“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
record will establish that he knows what he is doing
and his choice is made with eyes open.” Jd. The
' The Sixth Circuit further explains: “Although on average
reasonable people might agree that it is in a= eriminal
defendant's best interest to seek representation, ultimately, it is
47a
unconstitutional denial of the right to self-
representation is “a structural error, the remedy for
which is a new trial.” Jones v. Jamrog, 414 F.3d 585,
594 (6th Cir. 2005) (citing Wiggins, 465 U.S. at 177
n. 8).
A. Respondent’s Objections to the Report and
Recommendation
The respondent argues that the “crux of the
Magistrate Judge’s error in this case emanates from
his stated belief that Faretta and Wiggins mandate
an identifiable, separate three-step analysis for all
self-representing claims.” (Docket No. 34 p. 2). This
Court disagrees with this assertion because the
Magistrate Judge’s analysis is wholly consistent with
the well-established case law governing the rights to
counsel and self-representation. Faretta holds that
the right to self-representation is protected by the
Sixth Amendment, but that assertion of this right
requires the waiver of the Sixth Amendment right to
effective assistance of counsel. 422 U.S. at 835.
Wiggins holds that »nce a pro se defendant invites or
agrees to any substantial participation by counsel,
subsequent appearances by counsel are presumed to
be within the defendant’s acquiescence. Accordingly,
the R&R reviews the trial record and appellate
the defendant who must be free to personally decide whether in
his particular case counsel is to his advantage. This choice is at
once a choice to exercise an independent Sixth Amendment
right, the right to represent oneself, and a choice to forgo
another Sixth Amendment right, the right to counsel The
choice, therefore, is in part a waiver and thus must be made
knowingly, intelligently, and voluntarily.” Jones v. Jamrog,
414 F.3d 585, 592 (6th Cir. 2005) (internal citations and
quotations omitted).
48a
opinion for appropriate review of Mr. Moore’s
(1) assertion of right to self-representation, (2) a
knowing and intelligent waiver of right to counsel,
and (3) whether Mr. Moore’s continued
representation by counsel was tantamount to Mr.
Moore withdrawing his assertion and waiver. The
R&R does not create a new legal analysis for
selfrepresentation violation claims, as alleged by the
respondent, but instead the R&R is enumerating its
analysis for sake of charity.
The respondent further objects to the R&R’s
recommendation that this Court uphold the state
appellate court’s finding that Mr. Moore’s actions
constituted an invocation of his right to self-
representation. Specifically, the respondent argues
that the Magistrate Judge “simply misread the Court
of Appeals opinion” because the appellate court made
no such finding. This Court disagrees with the
respondent on this point. The appellate opinion
states that Mr. Moore “requested permission to
proceed pro se in his letter to the court, [but] then
immediately contradicted his request by having his
attorney continue to defend him.” Moore, 2002 WL
664104 at * 5. The opinion goes on to criticize the
trial judge for his failure “to properly address
defendant’s complaint at a time when the defendant
could have acted on his own behalf.” Jd. Based on
these statements, this Court agrees with the R&R
that the state appellate court found that Mr. Moore
had asserted his right to proceed pro. se.
Accordingly, this Court finds the respondent’s
objection on this ground to be without merit.
49a
Finally, the respondent contends that the
R&R disregarded Wiggins which provides that once a
defendant agrees to participation by counsel in his
defense, appearances by counsel is presumed to be
with the defendant’s acquiescence. The Court
disagrees with the respondent. Wiggins holds, “once
a pro se defendant invites or agrees to any
substantial participation by counsel, subsequent
appearances by counsel must be presumed to be with
the defendant’s acquiescence... .” In Wiggins, the
Supreme Court described the defendant as having
constantly changed his mind in his efforts to proceed
pro se: “Early in the trial Wiggins insisted he wished
to proceed entirely without assistance, but shortly
thereafter he expressly agreed that counsel should
question a witness on voir dire. Wiggins objected
vehemently to some of counsel’s motions, but warmly
embraced others.” 465 U.S. at 183. Based on these
facts, the Supreme Court concluded that Wiggins’
complaints concerning his counsel’s representation
lost much of its force. For reasons explained below,
the facts in the case before this Court are
distinguishable from those in Wiggins, and the Court
agrees with the R&R that the analysis of the state
appellate court is an unreasonable application of
clearly established federal law.
B. Assertion of right to proceed pro se
The decisive questions in this matter are
whether the trial court constitutionally denied Mr.
Moore his right to self representation, and whether
the state appellate court reasonably applied Faretta
and Wiggins when it concluded that Mr. Moore's
participation in a direct examination by his lawyer
50a
constitutes a waiver of his right to self
representation.
Mr. Moore asserted his right to self
representation but the trial judge unconstitutionally
denied him the right by failing to conduct an inquiry
into whether Mr. Moore was willing to waive his
right to counsel. On the morning of 14 September
2000, Mr. Moore raised questions about his counsel's
effectiveness and expressly asked the trial judge
twice, “Can I go pro se?” (Tr. at 843). In that same
colloquy, Mr. Moore explained to the judge that he
believed he had no other option but to proceed pro se.
Id. After telling Mr. Moore that he could not proceed
pro se (Tr. at 843-44), the trial judge changed his
mind and informed Mr. Moore that the court would
consider his request to proceed pro se upon a written
motion to the court. Jd. at 844. Mr. Moore
submitted a written motion to the court, stating if
his attorney did not represent him in a manner that
Mr. Moore determined was to his best advantage, he
requested that the court “allow [him] to proceed pro
se [sic] after a reasonable continuance (48 hrs)” for
the purpose of reviewing documents, formulating a
trial strategy, and preparing his closing argument.°
The trial judge did not address the motion upon
receiving it. Instead, he took possession of the letter
and then seated the jury and instructed the defense
to proceed with its case. Considering the context in
° The trial judge directed Mr. Moore on the morning of 14 July
to draft the motion on his lunch hour and submit it to the court
after the lunch break. Mr. Moore complied with the court's
order. Mr. Moore's attorney did not deliver the motion to the
trial judge until the following morning.
bla
which Mr. Moore’s oral and written requests were
asserted, this Court finds that Mr. Moore asserted
his Sixth Amendment right to self-representation.
Therefore, the dispositive issue in this matter
becomes whether the trial judge conducted the
appropriate inquiry on the record as to whether Mr.
Moore was making a knowing and intelligent waiver
of his right to counsel in order to proceed pro se. A
trial judge must thoroughly investigate the
circumstances under which a waiver of right to
counsel is made in order to ensure the waiver is
made with the defendant’s “eyes wide open.” Fowler
uv. Collins, 253 F.3d 244, 249 (6th Cir. 2001). In Mr.
Moore’s case, the trial judge never made such an
inquiry. He accepted Mr. Moore’s written request,
and then instructed the defense to proceed with its
case in chief, which included calling Mr. Moore as
the first of two witnesses. By the time the trial judge
addressed the written motion, a substantial portion
of the defense’s case had already been presented.
These are simply not facts which support a waiver
under Wiggins. The trial court unconstitutionally
denied Mr. Moore his right to self-representation by
its refusal to timely address the request.
The state appellate court concluded that
because Mr. Moore permitted himself to be examined
on the stand by counsel, this conduct constituted a
waiver of his right to self-representation under
Wiggins. Wiggins held that a defendant's Sixth
Amendment rights are not violated when a trial
judge appoints standby counsel to relieve the trial
judge of the need to explain and enforce basic rules of
courtroom protocol and the rules of procedure and
52a
evidence. The Supreme Court further held that
participation by standby counsel to steer a pro se
defendant through the trial proceedings is not a
violation of the Sixth Amendment right to self
representation. The flaw in the appellate court's
analysis in this case is that Mr. Moore did not at any
point act as his own counsel, he was he never
appointed stand-by counsel, nor was he even afforded
the opportunity to proceed pro se. He is not
asserting that stand-by counsel interfered with his
Sixth Amendment right to self-representation, but
rather that the trial judge interfered with his right
when he failed to entertain Mr. Moore's repeated
requests to proceed pro se. The trial judge accepted
Mr. Moore's written motion and then instructed the
defense counsel to proceed despite not having read or
considered the motion. As the trial judge gave no
indication that he would delay the trial to consider
Mr. Moore's request, the only other option Mr. Moore
had at that point would be to refuse to take the stand
and participate in his own defense. This is hardly a
choice for a criminal defendant.® Accordingly, the
® In Jones v. Jamrog, the defendant standing trial for felonious
ussuult in u Michigan state court was dissatisfied with his
counsel's representation. 414 F.3d at 587-88. He requested and
was denied access to the state's evidence. Jd. In explaining to
the trial judge his concerns, Jones articulated his belief that he
had no other choice but to proceed pro se because of the court's
order that he not speak in court and that defense counsel need
not provide him with copies of the state’s documentary
evidence. /d. at 587. In granting Jones’ habeas petition, the
Sixth Circuit recognized that his belief that he had “no choice’
was not to be taken literally, but rather the statement reflected
a strategic decision in light of his dissatisfaction with his legal
representation
53a
Court agrees with the Magistrate Judge's
recommendation that Moore’s participation in a
direct examination by his counsel was not a waiver of
his right to self-representation and the state
appellate court unreasonably applied Faretta and
Wiggins.
For the reasons set forth above, the state trial
court unconstitutionally denied the petitioner his
Sixth Amendment right to self-representation and
the state appellate court’s conclusion that Mr. Moore
knowingly, intelligently and voluntarily waived his
right to counsel is an unreasonable application of
clearly established Supreme Court precedent. Such
a constitutional violation may be remedied by a new
trial. Jamrog, 414 F.3d at 594.
IV. CONCLUSION
The Court adopts Magistrate Judge
Baughman’s' recommendation and_ grants a
conditional writ of habeas corpus, subject to the Mr.
Moore being retried by the state, on the grounds of
the state’s denial of the petitioner’s Sixth
Amendment right to self-representation.
Accordingly, the petitioner's judgment and conviction
in State of Ohio v. John Moore, Cuyahoga County
Court of Common Pleas No. CR 392440 is vacated
and set aside and the petitioner shall be released
from custody unless the State of Ohio commences a
new trial against him within 120 days after this
judgment becomes final.
The Court further adopts the Magistrate
Judge’s recommendation and denies grounds two
through four of Mr. Moore's petition.
54a
IT IS SO ORDERED.
/s/ Lesley Wells
UNITED STATES DISTRICT JUDGE
Date: 28 February 2007
5Da
APPENDIX D
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN C. MOORE, JR.,
Petitioner,
¥.
JAMES HAVILAND, Warden,
Respondent.
CASE NO. 1:04 CV 242
Dated: July 27, 2006
JUDGE LESLEY WELLS
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
REPORT & RECOMMENDATION
Introduction
Before the Magistrate Judge for his Report
and Recommendation is the petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254 filed by
John Moore, Jr.,! as amended.2 Moore, who is now
incarcerated in the Scuthern Ohio Correctional!
Facility for a term of thir’ -three years,* asserts four
| ECF #1 (petition). Moore was here represented by J. Dean
Carro.
- ECF #26 (amendment). Moore here proceeds pro se.
3 ECF #27 (supplemental return of writ). See, State v. Moore,
No. 86244, 2006 WL 439961 (Ohio App. 8 Dist. Feb. 23, 2006)
(remanding for resentencing); see also, www.drc.state.oh.us
56a
grounds for relief arising from his 2000 conviction on
one count of aggravated robbery and two counts of
kidnapping with firearm specifications by a
Cuyahoga County, Ohio jury.4
The state acknowledges custody of Moore on
the specified conviction but contends that the
asserted grounds for the writ are time _ barred,
procedurally defaulted, and/or without merit. Thus,
the state argues, Moore’s petition should be denied.®
For the reasons stated below, the Magistrate
Judge recommends that ground one of the petition be
conditionally granted, ground two be dismissed as
moot, and that grounds three and four be dismissed
as time-barred.
Facts
A. Trial
The facts concerning Moore’s trial and
conviction were set forth by the Ohio Court of
Appeals, Eighth District, which affirrned that
decision in 2002:
Defendant and his accomplice arrived
very early one Sunday morning at the Hard
Rack Café in Tower City. They told the night
cleaner whe let them in that they were there
———s
(website of the Ohio Department of Rehabilitation and
Correction) indicating that Moore was resentenced on May 23,
2006. The site also notes that Moore is currently serving time
for multiple other convictions.
' See, State v. Moore, No. 78751, 2002 WL 664104 (Ohio App. 8
Dist. April 18, 2002).
° ECF #16 (return) ECF #27 (supplemental! return)
57a
to interview for jobs. They proceeded to the
“safe room” where the kitchen manager was
finishing counting money. When defendant’s
accomplice held a gun to her head, the
manager opened the safe and gave him the
paper money. Moore demanded that she give
him the coins as well. The accomplice then
left the room and returned with another
female employee. The men proceeded to tie up
both women with duct tape. They also gagged
the employee with tape but left the manager
without a gag when she told them she had
allergies and would choke if she were gagged.
After the men left, the women managed
to free themselves and called the police. The
manager supplied the police with a
surveillance tape of the robbers, but because
the tape had been reused so many times the
quality of the pictures was poor. After NASA
enhanced the tapes, still pictures were taken
from them which showed defendant in a
distinctive baseball cap.
Several days prior to this robbery, a
private home had been robbed and _ its
occupant also had been bound and gagged
with duct tape. Defendant’s accomplice,
Lamar Chaney, was identified in a line-up as
one of the perpetrators in the private home
robbery. The accomplice was then identified
by the maneger, employee, night cleaner and a
fourth employee as one of the robbers at the
Hard Rock Cafe.
58a
The detectives questioned one of the
accomplice’s co-defendants, Trent Willis, from
the private home robbery, who led police to
defendant's home. The police ‘searched
defendant’s home and later questioned him.
Defendant signed a written confession to the
Hard Rock Café robbery. The police also took
a photo of defendant in the distinctive baseball
cap from defendant’s home. Finally, an
analysis of phone records corroborated all the
details contained in defendant’s confession.®
B. Direct appeals
1. The conviction
Subsequent to the conviction, Moore, now
represented by different counsel,’ appealed® and
raised four assignments of error:
1. The trial court deprived John Moore of his
constitutional right to effective assistance
of counsel when it failed to make an
adequate inquiry into Mr. Moore's
complaint that his trial counsel was not
doing an acceptable job and had Mr. Moore
proceed in the trial with the same attorney;
6 Moore, 2002 WL 664104, at *1. Factual findings made by the
state appellate court on its review of the trial record are
presumed correct. 28 U.S.C. § 2254(e)(1); Brumley v. Wingard,
269 F.3d 629, 637 (6th Cir. 2001).
7 The Cuyahoga County Public Defender’s Office represented
Moore in this appeal. ECF #18 at 18. Robert Tobik represented
Moore at trial. Jd. at 10.
8 The appeal was filed October 23, 2000. Id. at 25. Moore's
brief on appeal was filed April 20, 2001. Jd. at 18.
2.
3.
59a
The trial court erred and denied John
Moore his constitutional right to effective
assistance of counsel when it denied his
motion to waive counsel and represent
himself;
John Moore was denied his constitutional
right to cross-examine witnesses against
him when the trial court improperly
overruled his request, under Ohio Rule of
Criminal Procedure 16(B)(1)(g), to cross-
examine a state’s witness with material
inconsistencies in her prior statement;
. John Moore has been deprived of his liberty
without due process of law by his
sentences, as his sentences do not comport
with Ohio’s new sentencing law.?
One day afer filing this brief, Moore made a
pro se motion to file a supplemental brief with
additional assignments of error.!° On July 27, 2001
the Ohio appeals court granted Moore's request and
thereupon, again acting through the Cuyahoga
County Public Defender, Moore filed a supplemental
brief raising four additional assignments of error:
F
Was John Moore deprived of his
constitutional right to a fair trial when the
trial court took no action following Mr.
Moore’s allegations that a police officer was
signaling desired responses to a _ state’s
witness?
* Id. at 19.
10 See, id. at 122.
60a
2. Was John Moore denied his Sixth
Amendment right to confront the witnesses
against him when a_é police officer
introduced hearsay evidence by reading
from a police report?
3. Was John Moore denied his constitutional
right to effective assistance of counsel
when the trial court refused to grant a
reasonable continuance so that counsel
could prepare adequately for trial?
4. John Moore was denied his constitutional
right to effective assistance of counsel
when counsel both failed to file an affidavit
of prejudice against the judge presiding
over his trial with the Cuyahoga Court of
Common Pleas and when counsel failed to
preserve the record and denied Mr. Moore
of an otherwise valid appellate issue?[sic]!!
After the state opposed these assignments of
error, '2 the Ohio Court of Appeals, Eighth District,
on April 18, 2002, affirmed the judgment of the trial
court and overruled all but one of Moore's
assignments of error, holding that the imposition of
scntence was improper and so remanded the case for
resentencing.!?
On August 7, 2002, Moore, now proceeding
through the University of Akron School of Law
Appellate Review Office, sought to file a delayed
11 Jd at 121,
12 Td. at 102-15 (brief in opposition) and 159-66 (supplemental
brief).
13 Jd. at 167-203; Moore, 2002 WL 664104.
6la
appeal!4 with the Ohio Supreme Court.!5 The Ohio
Supreme Court approved the motion,'® and Moore
thereupon asserted four propositions of law:
1. The trial court deprived Appellant Moore of
his Sixth and Fourteenth Amendment
rights to represent himself when it
overruled his motion to waive cou:.sel and
represent himself;
2. The trial court deprived Appellant Moore of
his Sixth Amendment right to effective
assistance of counsel when it failed to make
an adequate and timely inquiry into
Moore’s complaints;
A. The trial court deprived Appellant
Moore of his constitutional right to
effective representation of counsel when
it failed to make an adequate inquiry
into counsel’s effectiveness;
14 Moore's’ brief in support of his habeas petition relates that on
June 3, 2002 he pro se filed a timely notice of appeal to the Ohio
Supreme Court which was denied. ECF #18, Ex. 2 at 5. The
state observes that the “Ohio Supreme Court Clerk’s Office has
no record of any such filing or Order.” ECF #16 at 4, n.4.
15 ECF #18 at 204. Principally, Moore argued that his
untimeliness arose from his_ difficulty in obtaining
representation as an indigent for his appeal to the Qhio
Supreme Court since. his former trial attorney, whose
representation was the subject of Moore's claims of ineffective
assistance, had, subsequent to the appellate court proceedings,
been appointed the Chief Public Defender of Cuyahoga County,
whose office had represented Moore on appeal, thus creating a
conflict of interest. See, id. at 206.
16 Jd. at 249.
62a
B. The trial court deprived Appellant
Moore of his constitutional right to
effective assistance of counsel when it
refused to grant a_ reasonable
continuance so that counsel could
adequately prepare for trial;
C. Appellant Moore was deprived of his
constitutional right to effective
assistance of counsel when counsel
failed to file an affidavit of prejudice
against the judge presiding over his
trial with the Cuyahoga County Court
of Common Pleas and when counsel
failed to preserve the record and denied
Appellant Moore an otherwise valid
appellate issue;
3. Appellant Moore was denied his Sixth
Amendment right to cross-examine the
witnesses against him when the trial court
improperly overruled his request under
Crim. R. 16(B)(1)(g) to cross-examine a
state’s witness with material
inconsistencies in her prior statement;
4. Appellant Moore was denied his Sixth
Amendment right to confront the witnesses
against him when a_e police _ officer
introduced hearsay evidence from a co-
defendant by reading from a police report.!?
lv Jd. at 251.
63a
The state responded in opposition,'® and, on
January 29, 2003, the Ohio Supreme Court denied
leave to appeal.'9 No writ of certiorari was sought
from the United States Supreme Court.
2. The sentence
Proceeding on a_ separate track, Moore
pursued relief for claims arising from his sentencing.
The original sentence was set aside as part of the
judgment affirming conviction entered by the
appeals court in 2002.29 Following the remand for
re-sentencing, Moore's’ sentencing was again
reviewed by the state appeals court, which again
remanded the case for yet another sentencing.2! The
website for the Ohio Department of Rehabilitation
and Correction notes that Moore was re-sentenced on
May 23, 2006.2?
C. Federal habeas claim
1. Original petition
On February 11, 2004, Moore, again
represented by the University of Akron School of
Law Appellate Review Project, filed the present
petition seeking a writ of habeas corpus from this
Court on the following two grounds for relief:
1. The trial court deprived Petitioner Moore
of his Sixth and Fourteenth Amendment
rights to self-representation when it
18 Jd. at 299-307.
19 Td., Ex. 16.
20 Moore, 2002 WL 664104, at *9
21 Moore, 2006 WL 439961, at *5.
“2 See, n.3, supra.
64a
overruled his motion to waive counsel and
represent himself.
2. The trial court deprived Petitioner Moore
of his Sixth Amendment right to effective
assistance of counsel when it failed to make
an adequate and timely inquiry into
Petitioner Moore’s complaints.?3
The state filed a return of the writ contending
that these asserted grounds for relief should be
denied because the state appeals court did not
unreasonably apply or did not act contrary to the
applicable clearly established federal law.24 Moore
filed a traverse taking issue with the state’s
arguments only as to the first ground for relief.*5
2. Amended petition
Subsequent to filing the traverse, Moore, now
proceeding pro se, sought?® and was granted leave??
to amend the petition. The amendment presents an
additional two grounds for relief:
3. John Moore was denied his constitutional
right to cross-examine the _ witnesses
against him when the trial court
improperly overruled his request under 16
(b)(1)(g) to cross-examine a witness with
material inconsistencies in her prior
statement.
23 ECF #1, Ex. 2 ati.
24 ECF #16 at 9, 13.
25 ECF #22.
26 ECF #26
27 Non-document orcer of July 21, 2005.
65a
4. John Moore was denied his’ Sixth
Amendment right to confront witnesses
against him ‘when a_ police officer
introduced hearsay evidence by reading
from a police report.2®
Moore contends that, despite making
“numerous attempts to have [the] Akron School of
Law include these issues to no avail,” his reading of
Crawford v. Washington?" “convinced this defendant
that these issues not only had merit but also insured
that the current conviction had no legal standings
[sic],” and thus required him to proceed pro se.*°
The state, in its supplemental return,
contends that, because these new grounds for relief
were known to Moore at the time he filed his original
habeas petition and because the amended petition
was submitted beyond the one-year period for raising
habeas claims prescribed by statute, these two new
grounds are time-barred.*! Alternatively, the state
maintains that one or both of these additional claims
are procedurally defaulted,*? involve a purely factual
issue already resolved by the state courts,® and/or
were resolved by the state courts in a manner not
contrary to nor by an unreasonable application of
clearly established federal law."
“8 ECF #26 at 4.
29 Crawford v. Washington, 541 U.S. 36 (2004).
30 ECF #26 at 2.
3! ECF #27 at 10.
82 Td. at 13
33 ld.
44 Jd. at 16
66a
Moore, once more represented by the
University of Akron School of Law Appellate Review
Project, initially responded to the _ state’s
supplemental return by seeking to stay these
proceedings® and, alternatively, by contending that
the one-year statute of limitations should be
calculated from the time the trial court’s first
resentencing order became final.*6 The Magistrate
Judge denied the motion to stay.°’
Moore thereupon submitted what was styled a
“merit reply” to the state’s supplemental return in
which Moore asserts that the state appeals court did
not clearly rely on a _ state procedural rule in
addressing what is now the third ground for relief, so
procedural default is not applicable.°* Further,
Moore argues that the state did not prove that the
error from allowing the hearsay, as is alleged by the
current ground four, was harmless and so cannot be
a reasonable application of or in conformity with
clearly established federal law.*9
Analysis
A. Grounds three and four — statute of
limitations
35 ECF #28. Moore was concerned that a then-pending state
appeal from his re-sentencing might make his habeas petition
unexhausted. That appeal has now been concluded and Moore
re-sentenced according to its ruling. See, n.3, supra. In any
event, Moore's claims in his amended petition are untimely.
See discussion at III, A infra.
36 ECF #29
37 ECF #30.
38 ECF #31 at 3.
39 Id. at 10
67a
As noted, Moore’s third and fourth grounds for
relief were added to his habeas petition by
amendment originally presented on October 10,
2004.°° The state has argued that the applicable
one-year statute of limitations began to run on June
13, 2002, forty-five days after the decision of the
Ohio appeals court affirming Moore’s conviction. The
statute ran for fifty-five days, from June 13 to
August 7, 2002, the date when Moore filed a motion
for a delayed appeal in the Ohio Supreme Court. The
statute was tolled until April 29, 2003, which is
ninety days after the Ohio Supreme Court dismissed
Moore’s delayed appeal. As the state notes, the
statute would then have expired on March 4, 2004,
well before Moore sought on October 10, 2004 to
amend his habeas petition with two additional
grounds.
Moore does not dispute the state’s calculation
of time, but argues, based on his reading of the
Eleventh Circuit decision in Walker v. Crosby,*' that
the one-year statute of limitations should be
calculated from the date of his first resentencing, not
the dismissal of his delayed appeal.
Moore's interpretation of Walker is inapposite.
As the district court in Sykosky v. Crosby’? reasoned
40 PCF #26.
4t Walker v. Crosby, 341 F.3d 1240 (11th Cir. 2003).
42 Sykosky v. Crosby, No. 3:04CV416/MCR/EMT, 2005 WL
1334600 (N.D. Fla. June 6, 2005).
68a
as to the same argument made by Moore here, in a
holding recently affirmed by the 11th Circuit:*%
Petitioner's reliance on Walker is
misplaced. In Walker, the Eleventh Circuit
held that the statute of limitations for a
habeas action that contains claims challenging
the resentencing judgment as well claims
challenging the original judgmeni of
conviction begins to run on the date that the
resentencing judgment became final and not
the date the original judgment became final.
In the instant case, Petitioner’s habeas
petition contains claims challenging only the
original judgment of conviction; he does not
challenge the resentencing judgment.
Therefore, Walker is inapplicable.“
Moore is 1n precisely the same situation as the
habeas petitioner in Sykosky. Moore’s amended
petition does not challenge any aspect of the
sentencing but merely asserts claims arising from
the original judgment sf conviction. As such, the
reasoning of Walker is of no avail.
Moreover, in the absence of case authority
from the Supreme Court or from this Circuit, the
Magistrate Judge is not persuaded that, even in
more similar circumstances, Walker presents a solid
rationale for understanding the statute of lmitations
in 28 U.S.C. § 2255. In Fielder v. Varner.*® a Third
‘3 Sykosky v. Crosby, No. 05-14341, 2006 WL 1813895 (11th
Cir. (Fla.) June 30, 2006).
'! Sykosky, 2005 WL 1334600, at *2 (internal citation omitted)
Fielder v. Varner, 379 F.3d 113 (3rd Cir. 2004)
69a
Circuit opinion authored by now-Justice Samuel
Alito, the court rejected the reasoning of Walker.
Then-Judge Alito observed that requiring a habeas
petition consisting of multiple claims to be
considered, for purposes of applying the statute of
limitations, as a single filing to be governed by a
single date on which the statute begins to run, “fails
on its own terms” and “neglects to pay close attention
to the statutory language.’46
In addition, Judge Alito’s opinion in Fielder
goes on to show that statutes of limitations, though
often drafted in the language of a single claim, are
usually applied in a multi-claim complaint on a
claim-by-claim basis.47 Further, the Fielder cpinion
notes that adopting the Walker interpretation would
have the “strange effect of permitting late-accruing
federal habeas claims to open the door for the
assertion of other claims that had become time-
barred years earlhier.”%8
It is important to note that Fielder also
definitively held that the language employed by an
earlier panel of the Third Circuit in Sweger uv.
Chesney,*? stating that the statute of limitations for
a habeas petition applies to the whole petition and
not on a case-by-case basis®*® — language cited
16 Td. at 118.
M Id. at 119. (“Although these provisions are framed on the
model of the one-claim complaint, it is understood that they
must be applied separately to each claim when more than one is
asserted.”)
1S Jd. at 120.
'9 Sweger v. Chesney, 294 F.3d 506 (3rd Cir. 2002).
0 Td. at 514-18.
70a
approvingly here by Moore®! — was _ non-binding
_dicta.®2
Accordingly, since Moore’s habeas petition
does not contain any claims arising from his
sentencing, and so does not present a_ similar
situation to that in Walker, the Magistrate Judge is
persuaded that, even without reaching the issue of
whether the limitations statute of 28 U.S.C.
§ 2244(d) (1) should, in petitions containing multiple
claims be applied to the petition as a whole by
reference to the latest timely claim, Moore’s claim is
time-barred since the holding in Walker is
distinguishable.**
Further, should the District Court conclude
that it must reach the issue of whether, as Moore
argues, a habeas petition is a single entity and, by
extension, its timeliness be computed by reference to
the conclusion of the last collateral attack on any
part of the state proceedings against the petitioner,
the Magistrate Judge recommends that the Court
find first that “28 U.S.C. § 2244(d)(1), like other
statute of limitations provisions, must be applied on
a claim-by-claim basis”? and that the statute of
limitations here began to run again ninety days after
the dismissal of Moore’s delayed appeal to the Ohio
>! ECF #29 at 3. (Moore's filing here is not paginated and the
page number provided is the computation of the Magistrate
Judge.)
°2 Fielder, 379 F.3d at 122.
°3 Svkosky, 2005 WL 1334600, at *2
4 Fielder, 379 F.3d at 122.
Tla
Supreme Court®> and without reference to his
collateral attack on his sentence.
Moreover, although not argued by the parties,
the Magistrate Judge recommends finding that the
claims of the amended petition do not escape the bar
of the statute of limitations by relating back to the
original, timely-filed claim. As recently stated by the
Supreme Court in Mayle v. Felix,®7 an amendment to
a habeas petition does not relate back to the original
petition for purposes of the statute of limitations
“when it asserts a new ground for relief supported by
facts that differ in both time and type from those the
original pleading set forth.”5§
Here, Moore’s third and fourth claims —
concerning the overruling of a request to impeach a
witness with prior inconsistent statements and
denying the right to challenge as impermissible
hearsay the use of a police report — arise out of
completely different facts from his original two
claims that rest on the denial of his right to proceed
pro se.
55 Abela v. Martin, 348 F.3d 164 (6th Cir. 2003).
°6 Cowherd v. Million, 380 F.3d 909, 914 (6th Cir. 2004),
overruling Austin v. Mitchell, 200 F.3d 391 (6th Cir. 1999),
quoting Tillema v. Long, 253 F.3d 494, 500 n.7 (9th Cir. 2001)
(“[A] claim that a death row inmate is incompetent to be
executed does not challenge the validity of the judgment, but
only its execution.” Holding that federal habeas statute of
limitation applicable to the judgment is not tolled by a state
collateral attack in terms of sentence.).
‘7 Mayle v. Felix, _ U.S. __, 125 S. Ct. 2562 (2008).
98 Id. at 2566.
By any analysis, the Magistrate Judge
recommends that Moore’s third and fourth grounds
for relief be dismissed as time-barred.°9
B. Ground one — deprivation of the right to
self-representation
1. Claim and response
Moore asserts that the trial court, acting
contrary to his Sixth and Fourteenth Amendment
rights of self-representation, “failed to make the
appropriate inquiry into Petitioner Moore’s request
to represent himself, which resulted = in
insurmountable prejudice to Petitioner Moore.”®°
The state responds by contending that the
trial court acted in accordance with the holding of
McKaskle v. Wiggins®' and that in so doing the state
appeals court reasonably applied the clearly
established federal law to this case.®
2. General principles of habeas analysis
Under the well-known rule of Williams ov.
Taylor,®3 a habeas petitioner is entitled to relief only
if a state court acted in a manner that was either
contrary to, or involved an unreasonable application
of, clearly established federal law as determined by
°9 Moore has not argucd that he is entitled to equitable tolling
and, in any event, he does not appear to be eligible for such
relief here. See, Dunlap v. United States, 250 F.3d 1901 (6th
Cir. 2001).
60 ECF , Ex. 2 at 5-6.
61 McKaskle v. Wiggins, 465 U.S. 168 (1984)
62 ECF #16 at 9-10.
63 Williams v. Taylor, 529 U.S. 362 (2000)
73a
the Supreme Court of the United States.64 Where the
state panel recognized the correct applicable federal
law, inquiry by the habeas court proceeds under the
rubric of whether the state court unreasonably
applied the federal law.®° The proper habeas inquiry
in such a case is whether the state finding was
“objectively unreasonable” and not simply erroneous
or incorrect.®
Where the state court did not identify any
clearly established federal law in rendering its
decision, the habeas court will first identify the
clearly established federal law applicable to the
matter and then determine if the state decision was
contrary to that law by either contradicting the
holding in a Supreme Court case or arriving at a
substantially different result on materially
indistinguishable facts.§7
3. Self representation - the clearly
established federal law
As the Sixth Circuit recently observed in Jones
vu. Jamrog,®® “the universe of clearly established
federal law [concerning self-representation] as
determined by the Supreme Court, 28 U.S.C.
§ 2254(d)(1), is narrow. It consists of one decision,
Faretta v. California,®? the leading Supreme Court
decision to reach a holding on the Sixth Amendment
64 Td. at 404.
69 Td. at 407.
66 Td. at 409-11.
67 Td. at 405-06.
§8 Jones vu. Jamrog, 414 F.3d 585 (6th Cir. 2005).
69 Faretta v. California, 422 U.S. 806 (1974).
74a
right of self-representation at trial.”7° Faretta holds,
inter alia, that the choice to represent oneself is:
at once a choice to exercise an independent
Sixth Amendment right, the right to represent
oneself, and a choice to forgo another Sixth
Amendment right, the right to counsel, and
therefore is, in part, a waiver, and must be
made knowingly, intelligently, and
voluntarily.”!
Hence, the right to proceed pro se and the
right to be represented by counsel are viewed as
correlative rights in that the assertion of the former
necessarily constitutes waiver of the latter.’72 For
that reason, courts have prescribed that the trial
court conduct an inquiry of a criminal defendant
seeking to proceed pro se as to whether he is aware of
the consequences of waiving his right to counsel”
and, further, mandated that the trial judge make a
finding on the record that the defendant has
knowingly waived his right to counsel.“4 Because the
right to counsel is so fundamental, a habeas court
will “indulge every reasonable presumption against”
finding a waiver of the right to counsel.”
However, such an inquiry and findings on the
record by the trial court are only required where a
70 Jones, 414 F.3d at 591.
"l Faretta, 422 U.S. at 835.
72 United States v. Cromer, 389 F.3d 662, 680 (6th Cir. 2004).
73 Waretta, 422 U.S. at 835; Cromer, 389 F.3d at 682.
74 See, United States v. McBride, 362 F.3d 360. 366 (6th Cir.
2004).
) Fowler v. Collins, 253 F.3d 24, 249 (6th Cir. 2001).
75a
criminal defendant has clearly, unequivocally, and
timely asserted his right to proceed pro se.76 Mere
expressions of dissatisfaction with counsel will not be
interpreted as a request to proceed pro se,”’ and trial
courts have no obligation to notify defendants of the
right to proceed pro se.78
In addition, once a pro se criminal defendant
has invited or agreed to any _— substantial
representation by counsel, the presumption is that
such representation by counsel is with the
defendant’s consent.79
4. The state appeals court decision
The appeals court here denied the self-
representation claim with the following analysis:
Although defendant told the court in his letter
that he wished to proceed pro se, he then took
the stand and allowed his counsel to conduct
direct examination of him. Thus, although he
requested permission to proceed pro se in his
76 Cromer, 389 F.3d at 682-83 (requiring an “articulate and
unmistakable demand to proceed pro se” before mandating the
Faretta inquiry); United States v. Martin, 25 F.3d 293, 295-96
(6th Cir. 1994), (“Even where the right to self-representation is
clearly invoked, it must be done so in a timely manner. ***
[Denial of motion to proceed pro se] made after the trial was in
full swing, is a fortiori a proper exercise of discretion.”).
7 Martin, 25 F.3d at 296. (“Where a defendant merely
expresses dissatisfaction with trial counsel’s performance, as
did Martin, we will not interpret this as a motion to proceed pro
se: instead it will be understood as an appeal to the tnal court’s
discretion to substitute counsel.”)
8 Id.
9 Wiggins, 465 U.S. at 183.
76a
letter to the court, he immediately
contradicted his request by having his
attorney continue to defend him. This
“subsequent appearance|] by counsel must be
presumed to be defendant’s acquiescence ***,8°
The state appeals court, therefore, did not
analyze whether the trial court properly handled
Moore’s request to represent himself under the
clearly established federal law announced in
Faretta.®1 Rather, it focused on whether Moore
waived his right to. self-representation under
Wiggins.®2
5. Application of the clearly established
federal law
a. Outline of analysis
The conclusion of the state appeals court that
the trial judge conducted an adequate review of
Moore’s request to represent himself and then that
Moore waived that right to self-representation
presents two structural barriers to meaningful
review. First, the court did not identify each step of
the process by which the right to self-representation
may be asserted, claimed and waived. Next, it failed
to make separate findings as to how those steps were
specifically accomplished in Moore's _ case.
Consequently, it is necessary here to first delineate
the sequence by which the right to self-
representation is claimed and waived and, then
80 Moore, 2002 WL 664104, at *5, quoting Wiggins, 465 US. at
183.
S! Furetta, 422 U.S. 806.
82 Wiggins, 465 U.S. 168.
77a
applying that law to the facts in this record, to
determine if the ultimate holding of the state appeals
court was an unreasonable application of the law.
Essentially, three distinct steps are required
to reach the ultimate holding of the state court.
First, Moore must be found to have made a clear,
unambiguous and timely assertion of his right to
self-representation. Second, Moore’s assertion must
have been examined by the trial court and a
conclusion reached, discernable from the record, that
such a request was a knowing and voluntary waiver
of the related right to be represented by counsel, and
that Moore was authorized to proceed pro se. This
step is in two parts: the first being the waiver and
the second being granting the motion for self-
representation when the request is made. Finally,
any subsequent waiver by Moore of his right to self-
representation must also be knowing and voluntary
as reflected by the record.
Accordingly, these steps, and the factual
support for concluding that they were or weren't
followed here, will be addressed individually.
b. Step one — the clear, unambiguous,
and timely assertion of the right to
self-representation
As noted, the right to self-representation must
be asserted in a clear, unambiguous, and timely
manner.®? Mere expressions of dissatisfaction with
counsel will not be interpreted as a request for self-
representation but will be seen as an appeal to the
83 See, cases cited at n.76, supra.
trial court’s discretion to substitute counsel.®*4 Nor is
an assertion of the right to self-representation made
after a trial has commenced beyond the authority of
the trial court to accept or deny at its discretion.*®
Thus, it is the clear assertion of the right to
self-representation that triggers the requirement
that the trial court conduct the Faretta inquiries to
establish that a litigant wishing to proceed pro se is
thereby knowingly and voluntarily waiving his right
to representation by counsel.®® It is further the clear
unambiguous assertion of such right during a trial
that places the matter within the sound discretion of
the trial court.®’
Although it did not specifically find that Moore
made a clear, unambiguous, and timely request for
self-representation, the state appeals court did find
that Moore “told the court in his letter that he
wished to proceed pro se.’*® While that statement is
a mixed conclusion of law and fact and so not binding
on a federal habeas court,*® the Magistrate Judge
recommends finding that Moore's letter did
constitute a clear and unambiguous request for self-
representation.
54 Martin, 25 F.3d at 295-96.
89 Td.
86 Cromer, 389 F.3d at 682-83
8’ Martin, 25 F.3d at 296 (denial of a motion to proceed pro se
“made after the trial is in full swing, is a fortiori a proper
exercise of discretion.’).
88 Moore, 2002 WL 664104, at *5
89 Thompson vu. Keohane. 516 US. 99, 109-10 (1995)
79a
The letter, which is reproduced in full in the
state appeals court opinion,”® was written by Moore
at the specific request of the trial judge.®' The judge,
at the conclusion of an on the record colloquy with
Moore about his complaints concerning his trial
counsel, had told Moore he would “entertain the
thought” of Moore representing himself,” instructing
him to make the request for self-representation as “a
written motion if you want to do so over this lunch
period and explain to me your plans for trial, your
strategy and — not specific, but your general capacity
for conducting a trial.”9
In his letter, Moore methodically proceeds
through a_ series of possible solutions to his
difficulties with counsel, each new _ proposal
contingent on the unavailability of the prior one.
Moore begins by re-stating his basic complaint that
he is “in a position to watch but not participate, to
witness but not contribute...."°4 As his first remedy,
Moore proposes that he be permitted to “assist
(defense counsel] Bob Tobick to the best of my
abilities....°2° But, Moore goes on to state, “if my
contributions will be continueously [sic] ignored then
“ Moore, 2002 WL 664104, at *3.
Yl Jd. (Notation following signature and date that it was
“Written on direction of judge Honorable Timothy McGinty.’)
% ECF #20 at 1196
“3 Id.
44 Moore, 2002 WL 664104, at *3
% Td
Oa
I would ask that you allow him to assist me in
continueing [sic] my defense.”
Proceeding through his sequence of
contingencies, Moore then states that “[fi]f that
cannot be accomplished, then I would ask that you
recall past witnesses and they be asked Q’s | deem
relevant...."27 Finally, Moore concludes by stating:
If none of the before mentioned requests can
be granted|,}| I ask that you read this entire
document into the record and you allow me to
proceed pro se after a reasonable continuance
(48 hrs.)....98
Moore concluded his letter by apologizing to
the court for “any inappropriate behavior in the
courtroom” and _ requesting an opportunity to
“apologize to [the] jury and |so that} they be made
fully aware of why the earlier incident took place and
the resolution [that was] decided upon and why.”
Although the trial judge professed to be
confused as to whether this letter did represent a
clear, unambiguous, and timely request by Moore for
self-representation,'"" the state appeals court, as
noted, did state that Moore “requested to proceed pro
96 Id
97 Id
98 ld
YY Id
100 Id. at *4 (to defense counsel, “He wants to and he later says
he would like to go pro se, but I'm not sure;” to Moore, “I read
[your letter] after you got on the witness stand Mr Moore, and
you have asked a couple of things. [’m not sure what you want
)
Sla
se in his letter to the court...."'°' In addition, making
the request for self-representation as the final
contingency in a series of possibilities is not fatal to
finding that it is clear and unambiguous. !
The Magistrate Judge accordingly
recommends finding that this letter was a clear,
unambiguous request by Moore to represent himself.
The conclusion by the state appeals court to this
effect should, therefore, be seen to be not an
unreasonable application of clearly established
federal law.
Further, as to timeliness, the third initial
attribute of a valid request for self-representation,
the state appeals court observed that there is no
requirement that a request to proceed pro se be made
prior to the commencement of trial.'*? This is fully
in accord with well-established federal law that
permits the granting of a_ request for self-
representation within the discretion of the trial
judge.!04
Accordingly, the Magistrate Judge
recommends finding that the implicit conclusion of
the state appeals court that Moore, by his letter to
the trial judge, did make proper, conditionally timely
request for self-representation, is not an
unreasonable application of clearly established
federal law.
101 Id. at *5.
102 See, Jones. 414 F.3d at 592-43
103 Td. at *4
104 Martin, 25 F.3d at 296
In sum, the Magistrate Judge recommends
finding that the state court did not unreasonably
apply clearly established federal law in finding that
Moore made a clear, unambiguous, and timely
request for self-representation, contingent upon the
exercise of the trial court’s discretion.
c. Step two — waiver of the right to
counsel and acceptance by the trial
court of the motion for self-
representation made during trial
The inquiry would now normally proceed to
whether the state appeals court reasonably applied
clearly established federal law in evaluating whether
the trial court (a) properly recorded a knowing and
voluntary waiver by Moore of his right to counsel and
then (b) properly exercised its discretion in accepting
or rejecting Moore’s motion to represent himself
made during the course of his trial.
However, because the trial court here
conspicuously failed to take any action on Moore’s
motion, and because the state appeals court did not
recognize the presence of the issue of what a trial
court must do in addressing a request to proceed pro
se made during trial, it must now be considered de
novo, and the implicit conclusion of the state
appellate court that this step was properly taken at
trial be considered in light of whether it is contrary
to clearly established federal law.
The state appeals court examined the trial
court's actions after Moore tendered his letter
requesting the right to self-representation in light of
the rubric set forth in the Ohio case of State v.
88a
Deal.’ The appeals court criticized the trial court’s
“manner of handling |Moore’s] request” as “less than
effective,” but ultimately concluded the trial judge
had “technically comphed with the requirements of
Deal...”1%
The Magistrate Judge notes that Deal is
inapposite to the present matter.'!"? Deal prescribes
what must be done when, during the course of a
trial, “an indigent accused questions the effectiveness
and adequacy of assigned counsel....”!°8 As the Sixth
Circuit in Martin makes clear, the mere act of
questioning counsel’s performance is not to be
understood to be a request to proceed pro se, and so
trigger the inquiries mandated by Faretta, but “will
be understood by the trial court as an appeal to the
court’s discretion to substitute counsel.”!09
Thus, by grounding its analysis on Deal, the
state appeals court incorrectly found itself examining
what steps must be taken by a tnal court to
safeguard the limited right of an indigent accused to
105 State v. Deal, 17 Ohio St. 2d 17, 244 N.E.2d 742 (1969).
106 Moore, 2002 WL 664104, at *5.
107 [Tt should be noted that on appeal Moore framed a related
issue to the one asserting error for denying him his right to self
representation exactly as the state court did concerning the
issue of self-representation, as one involving the failure of the
trial court to make timely inquiry into his complaints about
counsel, citing Deal and State v. Prater, 71 Ohio App. 3d 78, 593
N.E.2d 44 (1990. See, ECF #18 at 32. If the state appeals court
mistakenly conflated these arguments, it would explain the
inapposite use of Deal to this claim.
\08 Id. at *4, quoting the syllabus in Veal (emphasis added).
1039 Martin, 25 F.3d at 296
84a
have appointed counsel that one prefers!!° as against
the more robust procedures Faretta mandates when
dealing with the fundamental right to represent
oneself.!"!
Therefore, the Magistrate Judge recommends
finding that the state appeals court here did not
correctly identify what was at stake when the trial
judge undertook a review of Moore’s request!!? and
so did not subject the review of that request to the
proper clearly established federal law.
The request to represent oneself inherently
involves a waiver of the right to counsel. As has
been previously noted:
This choice is at once a choice to exercise an
independent Sixth Amendment right, the right
10 See, e.g., United States v. Saldivar-Trujillo, 380 F.3d 274,
277 (6th Cir. 2004) (“An indigent defendant has no right to have
a particular attorney represent him and therefore must
demonstrate ‘good cause’ to warrant substitution of counsel.”).
lll Faretta, 422 U.S. at 834. (“It is the defendant, therefore,
who must be free personally to decide whether in his particular
case counsel is to his advantage. And although 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.”) (Quoting //linois v. Allen, 397 U.S.
337, 350-51 (1970) (Brennan, J., concurring).)
112 The state appeals court did, as noted, correctly find that
Moore had requested self-representation, but then, apparently,
mistakenly concluded that a request for self-representation was
equivalent to a request to substitute counsel, requiring only a
response from the trial court suitable to a request to change
appointed counsel. See. Moore. 2002 WL 664104, at *6
(“Although we override this assignment of error, the trial courts
are advised to seriously and properly address defendants’
requests to change counsel or proceed pro se.”).
85a
to represent oneself, and a choice to forgo
another Sixth Amendment right, the right to
counsel. The choice, therefore, is in part a
waiver and thus must be made knowingly,
intelligently, and voluntarily.!!°
Thus, once the request for self-representation
has been made clearly and unequivocally, the next
step is to determine if the party requesting self-
representation is thereby “knowingly, intelligently
and voluntarily” waiving his right to counsel.
In King v. Bobby,'4 the Sixth Circuit recently
held that while an extensive pre-waiver colloquy
consisting of a series of specific questions from the
court to the party wishing to proceed pro se is
“required by this Circuit it is not required by the
Supreme Court.”'!5 Instead, King held that the core
holding of the Supreme Court is that a_ person
wishing to represent himself must do so by “a
knowing and intelligent waiver,” and the presence of
that waiver may be found by examining the whole
record.!16
Here, despite serious flaws in the trial court’s
colloguies with Moore on the issue of self-
representation, including misstatements of key
points of law,'!’ there are arguably present in the
113 Jones, 414 F.3d at 592, quoting Faretta, 422 U.S. at 835.
'l4 King v. Bobby, 433 F.3d 483 (6th Cir. 2006).
115 Td. at 492.
116 Jd.
117 See, e.g., “It’s too late for (self-representation] now. You've
already started with an attorney. I don't believe you can go
mid-trial.” ECF #20 at 1195-96. See also, “[If you were to
86a
whole record the elements of a knowing and
intelligent waiver by Moore of the right to counsel,!'8
despite the fact that the state appeals court made no
finding in this regard. However, in view of the fact
that the trial court completely failed to rule on
Moore’s motion to represent himself made during
trial and, thus, committed to the court’s discretion,
the Magistrate Judge recommends that it be found
unnecessary to address the question of whether the
necessary elements of a waiver of the right to counsel
exist in the total record.
Specifically, the trial judge correctly
recognized, despite his prior observation that he did
not believe a request for self-representation could be
made during trial, that any request for self-
representation made during the trial would need to
be in the form of a motion to the court and that
exercising that right would be subject to the court’s
sound discretion.
Accordingly, the trial judge told Moore that he
would “entertain the thought” of his representing
himself. Moore was told on the record, “[i]f you want
to put it in writing over the lunch hour, | will ...
allow you to make a written motion....”!!9
proceed pro se] [y]ou would be warving final argument because
you would be incapable of presenting what a pro se final
argument would have to be.” /d. at 1196-97.
118 See, e.g., Moore was aware of his right to counsel, ECF #2uU
at 1194; and was aware of potential scrious consequences of
self-representation, although some of the noted consequences
were erroneous, Id. at 1194-97.
119 Jd. at 1196 (emphasis added).
87a
Moore did so, preparing a written request to
represent himself, which he made a point to note was
done at the request of the trial judge.'2° Moore’s
attorney told the trial court at the conclusion of
testimony for the day the letter was written that he
would review the letter with Moore and ask that it be
included in the record the next morning.!2! The trial
judge agreed, stating that “we'll talk about it in the
morning. Before we start, remind me about it.”!22
Moore’s counsel did as he was instructed and
reminded the trial judge at the opening of court the
next day that he still needed to rule on Moore’s
motion.'23 The trial judge simply told Moore’s
attorney to “send [the letter] up when you find it.
That’s all.”124 At that point, without ruling on
Moore’s pending motion for self-representation, the
trial judge resumed the trial with Moore taking the
stand to be examined by his existing attorney in his
own defense.
Shortly thereafter, during an on the record
sidebar discussion on an evidentiary objection, the
trial judge brought up the subject of Moore’s letter.
The court expressed the belief to Moore's attorney
that Moore was “vascillat{ing]” as to whether he
wished to represent himself as he had expressed the
previous day during the colloquy.!2° The trial judge
120 Moore, 2002 WL 664104. at *3.
121 ECF #20 at 1285-86.
122 Id. at 1286.
123 ECF #21 at 1291.
124 Id.
125 Jd. at 1305.
88a
stated that, “He doesn’t specifically ask to take over
his own defense.” 26
Moore’s attorney immediately sought to
correct the court concerning Moore’s intent to
represent himself as expressed in the letter.!2’ “I
think he does. He wants to take over from that
point.”!28 Critically, the trial judge then raised the
point that Moore’s taking the stand that morning
could be an abandonment of any previously
expressed wish to proceed pro se. “{[H]e got up on the
witness stand so I don’t know if that’s an
abandonment of what he just gave me before hand or
what.”!29 This comment is despite the fact that
Moore had not received any ruling on his motion
when he took the stand. The trial judge concluded
his remarks by stating that he would delay a ruling
on Moore’s request for self-representation yet again.
“We will inquire of him later on again to see where
he is at,”!30
The trial then resumed, with Moore
continuing to answer questions posed by his
attorney. During a break, the trial judge did address
Moore on the record outside of the presence of the
jury about his letter:
Now, the court received your letter here
this morning. J read it after you got on the
witness stand, Mr. Moore, and you have asked
126 Jd. at 1306.
127 Jd.
128 Jd.
129 Jd.
130 Jd. at 1307
89a
a couple of things. [’m not quite sure what you
want, but you wanted a chance to address the
jury. The court:would certainly give you that.
You had the chance. Your attorney asked if
there is anything you wanted to say. You
gave your statement. That is what you are
looking for.'*'
These remarks by the trial court establish that
Moore’s written motion for self-representation,
prepared at the explicit direction of the trial judge,
was not even considered prior to trial resuming with
Moore assuming the witness stand. Moreover, the
trial court here once again expressed confusion over
the import of Moore’s motion — which, it should be
recalled the state appeals court in review found was
a clear, unambiguous request for self-representation
~— and reduced Moore’s letter to simply a request to
make a statement to the jury, something which
Moore had already done.'*? After misconstruing the
motion, the trial court told Moore, “You gave your
statement. That is what you are looking for.”!%%
While appearing here to dispose of the
misconstrued motion as moot, the trial court did not
clearly indicate to Moore that his written motion to
represent himself was denied.
The court then had a brief discussion with
counsel and Moore as to whether Moore would
apologize to the jury in the form of a statement or as
151 Td. at 1375 (emphasis added).
Ise Td.
Wh la
90a
the answer to a question.'34 The court stated it was
indifferent to what was decided in this respect.!%
Moore’s counsel then began to speak, but was
interrupted by the trial judge finishing his remarks
bout the form of Moore’s apology to the jury. “So you
talk it over and whatever you want to do [regarding
the form of the apology], that’s fine. Okay. Have a
nice break here.”!36
In the end, Mocre’s written motion, which was
discussed by the trial court at this conference only to
the limited degree that it expressed a desire to
apologize, was never discussed again on the record.
No ruling on Moore’s written motion to represent
himself was ever put on the record.
While, to be sure, neither Moore nor his
counsel were continuously insisting that the trial
judge rule on Moore’s written motion for self-
representation, Moore’s attorney did attempt to
correct the trial court when it sought to mis-
characterize the motion as confusing or
contradictory.'37 Moore, in turn, who had been
warned by the trial judge about his “[un]willingness
to comply with orders of the court,”!33 even to the
point of chiding him for his lack of “basic
politeness,’'39 may reasonably be assumed to have
been being careful not to anger the judge any further
134 Jd.
135 Jd. at 1375-76
136 Td. at 1376-77.
137 See, id. at 1306.
138 Jd. at 1196
139 Jeg
9la
by seeking to remind him to rule on his pending
motion. Most importantly, in the end, the record
shows that it was the trial court that displayed a
troubling tendency to repeatedly mis-read the motion
and to then routinely put off any consideration of it.
The Magistrate Judge suggests that this
failure to afford Moore any meaningful consideration
of his clear, unambiguous, and potentially timely
request to exercise his fundamental constitutional
right to self-representation — a request Moore could
not exercise on his own because doing so was within
the discretion of the trial court since it was made
during the trial — precludes recommending that the
appeals court reasonably applied Faretta here by
concluding that the trial court “technically complied”
with Dean.
d. Step three — because Moore's right to
self-representation had not attached,
since it was asserted during trial and
thus dependent for its execution on
the discretion of the trial court,
which had not ruled to etther grant
or deny Moore’s request, Moore
cannot be said to have waived
something he did not have.
Since exercising a right to self-representation
asserted during trial depends upon the approval of
the trial court in its discretion, a finding that such a
right was subsequently waived depends upon it
having been previously effectuated. Thus, any
waiver in this case would depend upon Moore having
been first granted the right to represent himself by
the trial court, and then, “knowingly, intelligently
92a
and voluntarily,’'*° having done or said something to
waive that right.
A pre-condition to a waiver being “knowing,
intelligent and voluntary” must be that the actor is
aware of the what is being waived. This central
point appears to lie behind the inquiries mandated
by Faretta. Therefore, if the right to defend pro se
and the right to counsel are “two faces of the same
coin,’'4! and if the inquiries mandated by the Sixth
Circuit in applying Faretta’4? begin with inquiries
focused on making clear that the party seeking to
relinquish the right to counsel does presently have
that right, then establishing from the record that a
party allegedly waiving his’ right to self-
representation actually knew that he was in
possession of that right at the time of the purported
waiver seems to be required.
Further, being able to locate in the record
some evidence that the party allegedly waiving the
right to self-representation knew he currently had
that right would protect against an inadvertent
waiver. !44
140 See, Jones, 414 F.3d at 592. A choice that includes a waiver
“must be made knowingly, intelligently and voluntarily”
(quoting Faretta, 422 US. at 835).
141 Cromer, 389 F.3d at 680 (quoting United States v. Conder,
423, F.2d 904, 908 (6th Cir. 1970)).
142 Td. citing to 1 Bench Book for United States District Judges
1.02-02 to -5 (3d ed. 1986).
143 See, id.. citing Adams v. Carroll, 875 F.2d 1441, 1444 (9th
Cir. 1989) which discussed the analogous situation of a locating
an unequivocal assertion of the right to self-representation and
thus a clear waiver of the right to counsel as a protection
93a
McKaskle v. Wiggins,'*4 the case cited by the
state appeals court and here by the state in support
of the proposition that Moore waived his right to
proceed pro se when he took the stand and permitted
his counsel to examine him, is not contrary to the
position being suggested here.
Wiggins requested the right to proceed pro se
before his second trial, after he had done so with the
court’s permission during the first trial.'4° As the
Supreme Court noted, Wiggins filed and argued
twelve pretrial motions pro se; conducted the voir
dire pro se; filed numerous trial motions pro se;
cross-examined witnesses and raised objections pro
se; filed his own requests for jury instructions; and,
made his own objections to the proposed jury
charge.'46
Thus, when Wiggins relinquished control of
the trial to standby counsel, the Supreme Court did
not need to seek further evidence that Wiggins had —
and knew he had — possession of his right to self-
representation at the time he took the actions that
the Court found constituted a waiver of that nght.
There is plainly no such record here. The
conclusion of the state appeals court that Moore, by
permitting his counsel to examine him, thereby
waived his right to self-representation does not, in
the view of the Magistrate Judge, have an adequate
against finding an inadvertent waiver from defendant's
“occasional musings on the benefits of self-representation.”
‘44 Wiggins, 465 U.S. 168
149 Jd. at 170 71
46 Jd at 175
94a
foundation in the record. Moore, when he took the
stand, did not know he possessed the right he was
seeking. In fact, he knew only that he had asked for
that right and that the trial court was reviewing his
request.
Further, characterizing Moore’s action here as
a waiver becomes even more difficult when it is
recalled that the trial judge admitted that Moore
took the stand prior to the judge even reading
Moore’s request, let alone ruling on it. Requiring
Moore to have refused to take the stand until his
request for self-representation was ruled on would
have put Moore in the position of potentially
provoking the trial judge who had just recently
scolded him for his inability to follow the court’s
orders. Moreover, Moore’s attorney had been told by
the trial judge immediately prior to Moore’s
testimony to “send up” Moore’s motion to the bench
where, presumably, the court would read it and rule
on it. There was no hint that testifying would be
prejudicial to the motion, let alone be construed as a
waiver. That notion from the trial judge only
surfaces after Moore has already commenced
testifying.
Accordingly, the Magistrate Judge
recommends finding that Moore’s testimony after he
sought the right to self-representation — but before
that motion had been ruled on, or even considered
did not constitute a “knowing, intelligent and
voluntary waiver” of that right, and so further
recommends that the conclusion of the state appeals
court to the contrary be deemed to be an
95a
unreasonable application of the clearly established
federal law of Wiggins.
C. Ground two — deprivation of the right
to effective assistance of counsel
Moore asserts that he was denied the effective
assistance of counsel when the state trial court failed
to make an adequate and timely inquiry into Moore's
complaints concerning his appointed counsel.'*’ The
state responds by asserting that Moore has not
presented specific errors that he claims were
committed by counsel'"8 and that the state appeals
court reasonably applied Strickland v. Washington!49
in concluding that Moore did not establish a
“reasonable probability that a different [trial]
strategy would have achieved a contrary result.”!°°
The state appeals court did not treat the issue
as a matter involving a claim of ineffective assistance
of counsel, to be resolved according to the analysis
established in Strickland, but as a question of when
a duty attaches to a trial judge to inquire of an
indigent defendant concerning his claims concerning
47 ECF #1, Ex. 2 at 13-18
148 ECF #16 at 10 (“Muore contends that he was deprived of the
effective assistance of counsel as a consequent of errors which
Moore deems unworthy of identification.”); (Moore brands
counsel as ineffective for reasons that ‘would have been
discovered’ had the tral judge conducted a ‘proper’ inquiry’)
id, at 12.
'49 Strickland v. Washington, 466 U.S. 668 (1984)
190 ECF #16 at 13
96a
the “adequacy and _ effectiveness of assigned
counsel.”151
Moore presented this issue to the state
appeals court as solely involving the failure of the
trial court to make an adequate and timely inquiry of
his complaints, mostly relying on the Ohio state
decisions of Deal and State v. Prater.'52
Essentially, the first issue before the habeas
court is to determine specifically what constitutional
violation Moore is alleging in this ground for relief.
It appears from both his current petition and his
argument to the state court that the gravamen of
this ground for relief is the failure of the trial court
to inquire into his complaint and not any specifically
deficient actions by his attorney which might be
reviewed by a Strickland analysis.
An indigent defendant complaining about
appointed counsel intersects with the Sixth
Amendment in two possible ways. First, as
discussed previously, it may involve a defendant’s
right to waive his right to counsel and represent
himself.'®3 Second, it may involve a request for the
appointment of new counsel!®4 or the substitution of
151 Moore, 2002 WL 664104, at *4, quoting Deal, 17 Ohio St. 2d
17.
152 Prater, 71 Ohio App. 3d 78, 593 N.E.2d 44, cited in ECF #18
at 32 (Moore’s brief on appeal). Moore also cited the state court.
inter alia, to Sawicki v. Johnson, 475 F.2d 183 (6th Cir. 1973)
and two other federal court opinions.
193 See, Faretta, 422 US. 806
194 See. Saldivar-Trujillo, 380F.3d at 277.
97a
retained counsel.'*» Accordingly, the constitutional
right involved, which would require a timely hearing
by the trial judge, would be the right to self-
representation, which has already been addressed, or
the right to change counsel.
As to the situation of a defendant seeking to
waive his right to counsel and represent himself,
that has been previously addressed. As to the
situation where a defendant seeks to change counsel,
either by substituting a new appointed counsel or by
replacing the appointed counsel with retained
counsel, it should be noted that neither situation
obtains here. Moore has not argued here or to the
state court that he wished to substitute a new
appointed counsel or to retain his own counsel.
Rather, Moore has consistently argued that he
was impermissibly denied his right to represent
himself. By this second ground for relief, Moore
attempts to create a second, independent
constitutional claim of “failure to inquire into
complaints concerning counsel” out of the
fundamental facts of his first ground for relief.
Again, the right to a timely and adequate hearing
concerning a defendant’s complaints about counsel is
not an independent right, but is part of the process
by which a court determines if such complaints
reveal an adequate founcation for one of the only two
actions a court is empowered to take: either
permitting the defendant to elect his right to self-
15% Serra v. Michigan Dept’ of Corrs., 4 F.3d 1351 (6th Cir.
1993).
98a
representation or to permit existing counsel to
withdraw and new counsel to assume representation.
Moore’s attempt here to _ conflate the
requirement for a hearing in such circumstances
with the Strickland analysis appropriate to
reviewing specific allegations oof deficient
performance does not create a new constitutional
right to a timely hearing during the course of trial by
which a trial court can instruct existing counsel on
new strategy or tactics more to the liking of the
defendant. If a defendant believes his counsel is
deficient and brings that to the court’s attention
during trial, the result must either be the waiver of
the right to counsel and assertion of the right of self-
representation or the substitution of new counsel.
Moore did clearly indicate to the trial court
which option he sought. That claim was analyzed
above and the present argument, as it restates the
first, 1s moot.
Accordingly, the Magistrate Judge
recommends that ground two of Moore’s petition be
dismissed as moot.
Conclusion
For the foregoing reasons, the Magistrate
Judge recommends that Moore be granted a
conditional writ, subject to being re-tried by the
state.
Dated: July 27, 2006
s/ Wilham H. Baughman, Jr.
United States Magistrate Judge
Objections
Any objections to this Report and
Recommendation must be filed with the Clerk of
Courts within ten (10) days of receipt of this notice.
Failure to file objections within the specified time
waives the right to appeal the District Court’s
order. 156
156 See United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
See also, Thomas v. Arn, 474 U.S. 140 (1985), reh'g denied, 474
U.S. 1111 (1986).
100a
APPENDIX E
THE SUPREME COURT OF OHIO
Case No. 02-1351
State of Ohio,
Appellee,
¥.
John Moore, dr.,
Appellant.
ENTRY
Filed January 29, 2003
Upon consideration of -the jurisdictional
memoranda filed in this case, the Court denies leave
to appeal.
COSTS:
Docket Fee, $40.00, paid by Akron University
Law School Clinic Program.
(Cuyahoga county Court of Appeals; No. 78751)
s/Thomas J. Moyer
Chief Justice
10la
APPENDIX F
COURT OF APPEALS OF OHIO
EIGHTH DISTRICT
COUNTY OF CUYAHOGA
NO. 78751
bd
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JOHN MOORE, JR.
DEFENDANT-APPELLANT
DATE OF ANNOUNCEMENT OF DECISION:
April 18, 2002
CHARACTER OF PROCEEDING: Criminal appeal
from Common Pleas Court, Case No. CR-392440.
JUDGMENT: Conviction affirmed; imposition of
consecutive sentences is reversed and remanded for
resentencing.
DATE OF JOURNALIZATION: April 29, 2002
APPEARANCES:
For Piaintiff-Appellee:
WILLIAM D. MASON, ESQ.
Cuyahoga County Prosecutor
MARK J. MAHONEY, ESQ.
Assistant County Prosecutor
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
102a
For Defendant-Appellant:
ROBERT M. INGERSOLL, ESQ.
Assistant Public Defender
100 Lakeside Place
1200 West Third Street
Cleveland, Ohio 4113-1569
TIMOTHY E. McMONAGLE, AwJ.:
Defendant-appellant, John Moore, Jr., appeals
his conviction for aggravated robbery and two counts
of kidnapping, al with firearm specifications. He also
appeals his maximum and consecutive sentences.
Defendant and his accomplice arrived very
early one Sunday morning at the Hard Rock Cafe in
Tower City. They told the night cleaner who let
them in that they were there to interview for jobs.
They proceeded to the “safe room” where the kitchen
manager was finishing counting monev. When
defendant’s accomplice held a gun to her head, the
manager opened the safe and gave him the paper
money. Moore demanded she give him the coins as
well. The accomplice then left the room and
returned with another female employee. The men
proceeded to tie up both women with duct tape.
They also gagged the employee with tape but left the
manager without a gag when she told him she had
allergies and would choke if she were gagged.
After the men left, the women managed to free
themselves and called the police. The manager
supplied the police with a surveillance tape of the
robbers, but because the tape had been reused so
many times the quality of the pictures was poor.
103a
After NASA enhanced the tapes, still pictures were
taken from them which showed defendant in a
distinctive baseball cap.
Several days prior to this robbery, a private
home had been robbed and its occupant also had
been bound and gagged with duct tape. Defendant’s
accomplice, Lamar Chaney, was identified in a line-
up as one of the perpetrators in the private home
robbery. The accomplice was then identified by the
manager, employee, night cleaner and _ fourth
employee as one of the robbers at the Hard Rock
Cafe.
The detectives questioned one of the
accomplice’s co-defendants, Trent Willis, from the
private home robbery, who led the police te
defendant's home. The police searched defendani’s
home and later questioned him. Defendant signed a
written confession to the Hard Rock Cafe robbery.
The police also took a photo of defendant in the
distinctive cap from defendant's home. Finally, an
analysis of phone records corroborate all the details
contained in defendant’s confession.
Appellant’s initial appeal stated four
assignments of error. After this court granted him
leave to supplement his appeal, he stated four
additional] assignments of error.
For his first and second assignments of error,
defendant states:
1. THE TRIAL COURT DEPRIVED
JOHN MOORE OF HIS
CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF
104a
COUNSEL, WHEN IT FAILED TO
MAKE AN ADEQUATE INQUIRY
INTO MR. MOORE'S COMPLAINT
THAT HIS TRIAL COUNSEL WAS
NOT DOING AN ACCEPTABLE JOB
AND HAD MR. MOORE PROCEED IN
THE TRIAL WITH THE SAME
ATTORNEY.
II. THE TRIAL COURT ERRED AND
DENIED JOHN MOORE HIS
CONSTITUTIONAL RIGHT TO
EFFECTIVE ASSISTANCE OF
COUNSEL, WHEN IT OVERRULED
HIS MOTION TO WAIVE COUNSEL
AND REPRESENT HIMSELF.
Defendant argues that when the trial court
refused to hear his complaints about the trial tactics
of his attorney and either appoint another attorney
or allow him to proceed pro se, he was denied
effective assistance of counsel. The state counters
that because defendant did not raise this issue until
the state had nearly finished its case in chief, the
request was untimely and the court properly denied
it.
On September 14th, after several days of trial,
immediately following a break in which the attorney
was instructed to discuss whether or not a certain
witness should be called, defense counsel approached
the bench and stated,
my chent has given me a_ request of
instructions and I have informed him that this
is not the appropriate time to place this on the
105a
record. And I’m telling the court that 1 would
like time after the State’s case and before our
case, but he has some things which I think
they are perhaps dissatisfaction |sic] with the
way I’m representing him that he would like
to tell the court or have me tell the court.
THE COURT: Well, that’s all very nice. You
know, we will certainly take that all into
account. Thank you. Let’s go.
The court then tried to proceed with trial, but
defendant repeatedly interrupted. He stated, “I
asked [my attorney] to deliver a letter. I don’t think
he gave it to you.” The court informed him that it
was not the appropriate time for this discussion, to
which defendant replied, “Excuse me, your Honor,
before we start up, I want to make sure I preserve--.”
The court interrupted him and told him not to speak
in front of the jury. The court then said “When we
are a break, we will have another--.” Defendant then
interrupted the court and said, “we were at a break.
He handed you a note.”
Following discussion of the events of a trial of
a co-defendant, the court informed defendant that he
could say whatever he wanted when he testified.
Defendant attempted to clarify that “{t}hese are
questions for witnesses that were already here.” The
court told him to be quiet and that he could say
anything he wanted to on the witness stand.
Defendant responded, “I’m trying _ to
communicate with the court but nobody is letting
me.” The court again ordered him to stop speaking
until the jury was no longer in the room.
106a
Later that day, the court spoke on the record
with the defendant outside the presence of the jury.
Defendant again explained that his attorney was not
asking questions he considered necessary for his
defense and that he had written a note to the judge
informing him of it. The judge acknowledged that he
had not seen defendant’s note and told defendant
that although he could suggest questions to his
counsel, counsel “is the one who makes that decision
as to the specifics of the questions and witnesses.”
Defendant asked, “then what do I have to do to
make a decision on what questions are asked and
who’s called and not called? What do I have to do
right now to do that because I feel that I have some
very important questions that are not being asked.”
The court responded by telling him first that his
court-appointed counsel was very qualified and “is
highly respected in the community.”
The court went on to tell him, “[n]ow you could
have hired your own attorney or you can go pro se
and be your own attorney ***.” He then discouraged
defendant from going pro se. Nevertheless,
defendant then asked repeatedly to go pro se.
The court first told him “[i]t is too late for that
now. You have already started with an attorney. |
don’t beheve you can go mid trial.” Tr. at 844. The
court also. stated that defendant had _ not
“demonstrated any knowledge of the law. or
willingness to comply with the orders of the court or
understanding of the rules of evidence.” Jd. At that
107a
point defendant gave the brief note to the judge
stating his complaints about his attorney. !
The court then changed its position and told
defendant to write and submit his request during the
lunch break, including “your plans for trial, your
strategy, *** your general capability of conducting a
trial” and stated it would review the request.
Defendant reiterated that all he wanted was a “right
to call them witnesses.” Tr. at 845.
After the lunch break, defense counsel told the
court that defendant had given him the “written
statement. With the court’s permission I will review
it with him and we can attach it to the record
tomorrow morning.” The court instructed counsel to
remind it about the letter before trial began in the
morning. The court then proceeded with the cross-
examination of one of the detectives.
The next morning counsel informed the court
that he had the letter the court had instructed
defendant to write. The court responded, “Well, I
have the first letter he sent. Is there another letter?”
The court was informed that the letter in discussion
was the one he instructed defendant to write during
the previous day’s lunch break. The court responded,
“well, send it up when you find it.2 That’s all. ***”
' The note states, “Your Honor, John Moore would like to go on
record to preserve right to call back any or all witnesses called
by Prosecutor. I have many, many Q's that I presented to my
lawyer to ask but did not. I[ also want Fred King and all co-
defendants called if prosecutor doesn’t. I also ask that Det.
Moran be kept out of court since he'll be called as a witness.”
- The letter from defendant stated:
CR392440 CA 78751
108a
Your Honor,
1 feel that a lot of my Q's would have promoted facts to my
defense of being coerced into making a _ false
confession/statement. A lot of relevant information which could
contrast with the states (sic) position are not being brought out
due to the Q’s not being asked or line of Qing not being followed
through to the end.
I believe by asking former witnesses, the fact that a lot of
information can be brought to light thru asking the revelavant
[sic] Q. Q’s to ascertain state of mind of witnesses, intent of
witness's and the igsistance [sic] of a concerted effort on the
police behalf to hid [sic} facts and distort truth's |sic]. I have
given numerous lead’s [sic] for Mr. Tobik to follow-up on but
none were done in a timely fashion to be used in my defense.
As for closing Arguements [sic] if you will give me the
perameters [sic] [boundries] by which I have to limit my
resessatations [sic] & statements of fact I'm sure with a
reasonable amount of time (48 hrs.) I could write a full
assessment of my strategy as well as the means to deliver it to
the jury. In closing | have tried to comply with all orders of the
court and only wish to get both the truth (in full) and my
version of events related to the jury before deliberations
cormmence. I feel that I am in a position to watch but not
participate, to witness but not contribute even though I| have
firsthand knowledge ofentime [sic] procedings [sic]. I'm if I may
put it in example. [sic] Being expected to fight a championship
boxer in a title fight with my left hand tied & my right broken.
I could still fight but the chances of success is [sic] zero to none.
I would like to assist Bob Tobik to the best of my abilities and
on important matters of strategy & fact toward witnesses &
evidence. But if my contributions will be continueously [sic]
ignored then I would ask that you allow him to assist me in
continueing [sic] my defense. If that can not be accomplished, I
ask that you recall past witneses and they be asked Q’s I deem
relevant and future witnesses & evidence be reviewed to help
better form defense. If none of the before mentioned requests
can be granted I ask that you read this entire document into
the record and you allow me to proceed pro-se [sic] after a
109a
The court accepted the letter and then ordered the
jury into the room. The defense then began its case,
calling the defendant as a witness.
Later that day while at a side bar, the court
stated “while we’re at the side bar, we have —
whatever you think is necessary in this defense. I
have a letter from him in which he vacillates [sic] the
letter given to me a minute ago.” The court then
reasonable continuance (48 hrs) for sole purpose of reviewing
documents in Prosecutor's control and to formulate a full
encompassing strategy & to write both closing arguement [sic]
and formulate Q's to be asked to me when | take [the] witness
stand in my defense. This time will also be used to familiarize
myself with the rules, protocols, and procedures of trial. My
final request is that this document not be scrutinized by
prosecution until such time as I am prepared to act in my own
defense. I apologize for any inappropriate behavior in the
courtroom and will continue to conduct myself in a respectful
manner for the duration of trial.
Thank you
John C. Moore
Sept. 14, 2000 1:00 p.m.
Thursday Written on direction
of judge Honorable Timothy McGinty.
P.S. on pg. # 3
| also request that | be allowed to apologize to |the] jury and
they be made fully aware of why the earlier incident took place
and the resolution |was] decided and why.
Sincerely
John C. Moore
PS. Il
This should in no way reflect negatively on Mr. Robert Tobik
who I hold in high regard and respect immensely. I just feel my
defense should be handled a little differently and since the
eventual outcome will impact me the most that | should have
input into strategy & decision making |it] part of my defense.
110a
states that defendant “doesn’t specifically ask to take
over his own defense.” Defense attorney contradicts
the court saying he thinks that the defendant does
want to take over his own defense. The court
responds, “He wants to and he later says he would
like to go pro se, but I’m not sure. He wants to go as
cocounsel [sic] apparently, but, he got up on the
witness stand so I don’t know if that’s an
abandonment of what he just gave me beforehand or
what.
Anyway, we will discuss it with him. We told
him in the last trial, and I told him in this trial he is
allowed — I will give him a chance to make a speech
at the end of your examination. If he wants to make
a statement outside of what he said, he can ***.”
Finally, the court said, “[wJe will inquire of
him later on again to see where he is at. I can't
make heads or tails from that letter, the combination
of the letter and his actions getting up on the witness
stand.”
During another’ break in defendant's
testimony, the court addressed the defendant on the
record while the jury was out of the room. The court
said:
Now, the court received your letter here this
morning. I read it after you got on the witness
stand, Mr. Moore, and you have asked a couple
of things. I’m not sure what you want, but you
wanted a chance to address the jury. The
court would certainly give you that. You had
the chance Your attorney asked is there
anything you wanted to say. You gave your
llla
statement. This is what you are looking for.
Do you want to impress the jury again at the
end of this?
Defendant replied that he wished to apologize to the
jury and the court for his interruptions. The court
reminded him that he would be opening himself up
to cross-examination. Defense counsel began to
speak, “Your Honor--” but the court interrupted him
saying, “[s]o you talk it over and whatever you want
to do, that’s fine. Okay. Have a nice break here.”
Nothing further was said about defendant’s request.
First we note that to make a case for
ineffective assistance of counsel, the defendar.t must
prove that his counsel’s performance fell below “an
objective standard of reasonable representation and,
in addition, prejudice arises from _ counsel’s
performance.” State v. Bradley (1989), 42 Ohio St.3d
136, syllabus paragraph two. Herein, this defendant
cannot demonstrate any instance of unreasonable
representation. Further the defendant did not show
that but for his counsel’s representation he would
have been acquitted. For all of these reasons, all of
the defendant’s assignments of error, including
ineffective assistance of counsel, fail and are hereby
overruled. Therefore, unless defendant can show
that but for his counsel’s representation he would
have been acquitted, all of his assignments of error
addressing ineffective assistance of counsel will fail.
The action of the new trial court in dismissing
defendant’s request for new counsel or to proceed pro
se requires examination, however, because it affects
defendant’s constitutional rights. In State v. Deal
112a
(1969), 17 Ohio St.2d 17, syllabus, the Ohio Supreme
Court held that
[w]here during the course of his trial for a
serious crime, an indigent accused questions
the effectiveness and adequacy of assigned
counsel, by stating that such counsel failed to
file seasonably a notice of alibi or to subpoena
witnesses in support thereof even though
requested to do so by the accused, it is the
duty of the trial judge to inquire into the
complaint and make such inquiry part of the
record. The trial just may then require the
trial to proceed with assigned counsel
participating if the complaint is_ not
substantiated or is unreasonable.
The court must, however, conduct an _ inquiry
specifically addressing defendant’s complaints,
raaking a record of the discussion. “The trial court
had a duty to investigate a complaint concerning the
effectiveness of counsel and to make its investigation
on the record for effective appellate review.” State v.
Prater (1990), 71 Ohio App.3d 78, 82.
The state claims that Prater is distinguishable
because the defendant in Prater made his request
before trial began. There is nothing in the case law,
however, to state that a defendant must make a
request to dismiss his counsel or to proceed pro se
before trial has begun. Indeed, the Supreme Court of
the United States noted that a defendant's right to
assistance of counsel “implies a _ right in the
defendant to conduct his own defense, with the
assistance at what, after all, is his, not counsel's
trial.” /d. at 174, emphasis in original. Defendant
lla
argued that because his counsel was ignoring his
requests for the appearance of witnesses and refused
to ask the questions defendant requested he ask, he
wanted his counsel dismissed. “An unwanted
counsel ‘represents’ the defendant only through a
tenuous and unacceptable legal fiction. Unless the
accused has acquiesced in such representation, the
defense presented is not the defense guaranteed him
by the Constitution, for, in a very real sense, it is not
his defense.” Faretta v. California (1975), 422 U.S.
806, 821.
The state argues further that defendant does
not have a right to “hybrid” representation, and that
once his attorney began the trial, defendant would no
longer be allowed to participate. The state
misconstrues defendant’s request: defendant was
not asking for “hybrid” representation, that is,
representation which would allow him to conduct
part of his defense and the attorney to continue to
conduct part of it.
Once a pro se defedndant is given the
opportunity and elects to have counsel appear
before the court or jury, his complaints
concerning counsel's subsequent unsolicited
participation lose much of their force. ***
Once a pro se defendant invites or agrees to
any substantial participation by counsel,
subsequent appearances by counsel must be
presumed to be with the defendant’s
acquiescence, at least until the defendant
expressly and unambiguously renews his
request that standby counsel be silenced.
ll4a
McKaskle v. Wiggins (1984), 465 U.S. 168, 183,
emphasis added. “It is the defendant, therefore, who
must be free personally to decide whether in F's
particular case counsel is to his advantage. And
although he may conduct his own defense u
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