# Appendix — Welch v. Moore (No. 08-1425) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0537%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2009 ## Text 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 NE ibs cli aaioaainc tana Gahananntcentoabinsonsdacnvablennivess 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 SOOPER EEE EERE HEHEHE HEHE REE EEE HEHE EER EHH TERE EEE SHEESH HEED Sapa 3a at 32a ... 100a ..10Ola la 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. 2a 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. 19a 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 lett [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_0537%3A2. Public record. Not legal advice.