Maceo Spates v. Harold Clarke , 547 F. App'x 289 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-6358
MACEO SPATES,
Petitioner - Appellee,
v.
HAROLD W. CLARKE, Director, VA Dept. of Corrections,
Respondent - Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cv-00284-RAJ-TEM)
Argued: October 29, 2013 Decided: December 4, 2013
Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.
Reversed by unpublished per curiam opinion.
ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant. Neal Lawrence
Walters, SCOTT KRONER, PLC, Charlottesville, Virginia, for
Appellee. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellant.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Harold W. Clarke, as Director of the Virginia Department of
Corrections (hereinafter the “Commonwealth”), appeals the
district court’s decision granting Maceo Ali Spates’s petition
for a writ of habeas corpus filed under 28 U.S.C. § 2254, on the
ground that Spates did not knowingly and intelligently waive his
Sixth Amendment right to counsel. Because the Virginia court’s
rejection of Spates’s constitutional claim was neither contrary
to nor an unreasonable application of clearly established
federal law, as determined by the United States Supreme Court,
we reverse the district court’s decision and deny habeas relief. 1
I.
A.
In October 2005, Spates was arrested and ultimately charged
in the Commonwealth of Virginia with abduction, see Va. Code
§ 18.2-47; rape, see Va. Code § 18.2-61; unlawful wounding
during the commission of a felony, see Va. Code § 18.2-53; petit
larceny, see Va. Code § 18.2-96; armed statutory burglary, see
Va. Code § 18.2-90; and entering private property while wearing
a mask, see Va. Code § 18.2-422. He was provided court-
appointed counsel. Due to the unavailability of witnesses, the
1
The district court previously granted the Commonwealth’s
motion for a stay pending appeal.
2
case was continued on at least two occasions to June 2006.
Spates thereafter requested two additional continuances,
resulting in the scheduling of what was to be a non-jury trial
for December 5, 2006. The day before the scheduled trial,
however, Spates demanded a jury trial, forcing another
continuance until February 12, 2007, in order to empanel a jury.
On February 12, 2007, with the jury and witnesses present,
Spates appeared and asserted his constitutional right to
discharge counsel and represent himself. See Faretta v.
California, 422 U.S. 806 (1975). Spates’s counsel also appeared
and moved to withdraw from representation in accordance with her
client’s wishes. Following a brief recess to allow Spates to
consult further with counsel regarding his decision, Spates
pressed his motion to proceed pro se with appointed counsel
acting as standby counsel instead. The trial judge granted the
motions and, reluctantly, another continuance to allow Spates to
prepare for trial. A pre-trial motions hearing was set for
April 23, 2007, and the jury trial for May 7, 2007.
On April 23, 2007, Spates appeared as scheduled. At that
time, a written “Waiver of Right to be Represented by a Lawyer”
(the “Waiver”) was executed by Spates and certified by the trial
judge. J.A. 24. Among other things, Spates confirmed that he
had “been advised by [the] judge . . . of the nature of the
charges in the cases pending against [him] and the potential
3
punishment for the offenses,” and that he “underst[oo]d the
nature of these charges and the potential punishment for them if
[he was] found guilty.” J.A. 24. Spates further represented
that he understood “the manner in which a lawyer can be of
assistance” and that “in proceeding without a lawyer, [he] may
be confronted with complicated legal issues.” J.A. 24. Spates
confirmed his election to waive counsel as follows:
Understanding my rights to be represented by a
lawyer as described above and further understanding
the nature of the case and the potential punishment if
I am found to be guilty, I waive all of my rights to
be represented by a lawyer in these cases, with the
further understanding that the cases will be tried
without a lawyer either being hired by me or being
appointed by the judge for me. I waive these rights
of my own choice, voluntarily, of my own free will,
without any threats, promises, force or coercion.
J.A. 24. The trial judge also signed the Waiver, certifying
that “[u]pon oral examination, [the court] finds that [Spates],
having been advised of the rights and matters stated above and
having understood these rights and matters, thereafter has
knowingly, voluntarily and intelligently waived his rights to be
represented by a lawyer.” J.A. 24.
On May 7, 2007, the case was called for trial as scheduled,
but before a different trial judge. Spates appeared with
standby counsel. The witnesses and the jury were again present
and ready to proceed. At the inception of the proceeding,
however, Spates claimed to have recently “found and retained
4
counsel” who “was supposed to show up” but was not present.
J.A. 28. Spates acknowledged that he had elected to proceed pro
se and that he had executed the Waiver, but he argued that he
did not understand the procedures and was not prepared. Spates
also repudiated the written representations he had made in the
Waiver. He denied that the previous trial judge had gone “over
all of the ramifications [of self-representation] with [him],”
as reflected in the Waiver, and claimed that he “didn’t know
that [he] was signing the waiver to represent [himself].” J.A.
51-52. The presiding trial judge informed Spates that new trial
counsel would be allowed to take over representation if he
appeared, but denied Spates’s request for another continuance as
at least fifteen witnesses were present and prepared to proceed,
in addition to the jurors, attorneys, and staff. No new counsel
ever appeared, and the trial proceeded. Spates represented
himself with standby counsel available. At the conclusion of
the trial, Spates was convicted of four of the six charges
against him, 2 and he was sentenced to a total of thirty-four
years imprisonment.
2
Spates was acquitted of the charges of armed statutory
burglary, see Va. Code § 18.2-90, and entering private property
while wearing a mask, see Va. Code § 18.2-422.
5
B.
After trial, Spates’s standby counsel was reappointed to
represent him on direct appeal. Spates claimed that the trial
court violated his Sixth Amendment right to counsel by denying
him counsel on the day of trial. Spates also claimed that he
did not knowingly and intelligently waive his right to counsel
prior to the trial. The Virginia Court of Appeals rejected both
claims and affirmed. Noting that the right to counsel is not
without limitations, nor “a right subject to endless abuse by a
defendant,” J.A. 73-74 (internal quotation marks omitted), the
court first rejected Spates’s claim that the trial judge denied
him counsel, as follows:
Appellant affirmatively waived his right to
counsel as evinced by the waiver form he signed two
weeks before trial. By waiting until the morning of
trial to announce he no longer wanted to represent
himself, appellant attempted to unreasonably and
unjustifiably delay the trial, which previously had
been continued. We find no error with the trial
court’s denial of appellant’s continuance motion based
upon his initial waiver of his right to counsel
combined with his last minute attempt to delay the
trial.
J.A. 74 (emphasis added). The court also rejected Spates’s
claim that he did not knowingly and intelligently waive his
right to counsel prior to trial, as follows:
At a February 12, 2007 hearing, appellant
requested to relieve his court-appointed counsel and
proceed pro se. On April 23, 2007, appellant signed a
waiver form waiving his right to be represented by
counsel at trial. The form indicates appellant was
advised of the charges against him, of the potential
6
punishment he faced, and of his right to be
represented by counsel. Appellant waived these rights
“of [his] own choice, voluntarily, of [his] own free
will, without any threats, promises, force or
coercion.” The judge also signed the form indicating
appellant was subject to oral examination and was
advised of his rights, understood his rights, and
“knowingly, voluntarily and intelligently waived his
rights to be represented by a lawyer.” Accordingly,
the record includes ample evidence that appellant
freely and voluntarily waived his right to be
represented by counsel at trial.
J.A. 74-75. The Supreme Court of Virginia refused Spates’s
petition for further appeal. 3
C.
Spates thereafter filed this petition for a writ of habeas
corpus under 28 U.S.C. § 2254, asserting that the Virginia
court’s rejection of his claim that he did not knowingly and
intelligently waive his right to counsel prior to trial was
contrary to or an unreasonable application of Supreme Court
precedent. 4
3
Although Spates did not timely file an appeal to the
Supreme Court of Virginia, he was later granted, through
Virginia post-conviction proceedings, leave to file a belated
appeal. Spates also filed a second petition for post-conviction
relief based on his Sixth Amendment claims, but the claims were
dismissed as procedurally barred because they had already been
decided on the merits in the direct appeal.
4
Spates did not pursue his claim that the trial judge
violated his Sixth Amendment right to counsel by refusing to
continue the trial and either reappoint counsel or wait for
retained counsel to enter an appearance.
7
For reasons that remain unclear, the district court ordered
the Commonwealth to have a transcript from the February 12,
2007, hearing prepared and submitted for inclusion in the
federal habeas court record, but did not order preparation of
the transcript from the April 23, 2007, hearing. Neither
transcript had been prepared or submitted by either party to the
Virginia Court of Appeals in connection with its review of
Spates’s constitutional claim, nor did the Virginia Court of
Appeals order production of either transcript on its own accord.
Relying almost exclusively upon the February 12, 2007,
transcript and Spates’s attempt to revoke his waiver on May 7,
2007, the district court granted habeas relief and ordered that
Spates be retried or released from custody. The court found
that the trial judge’s colloquy with Spates on February 12 was
constitutionally inadequate to ensure that Spates had waived his
right to counsel knowingly and intelligently, and that the
Virginia Court of Appeals decision to the contrary was
unreasonable. This appeal followed.
II.
A.
Under 28 U.S.C. § 2254(d), as revised by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), our review of
the Virginia court’s decision rejecting Spates’s Sixth Amendment
waiver claim is highly deferential. Where, as here, a federal
8
habeas petitioner’s constitutional claim has been “adjudicated
on the merits in State court proceedings,” we may not grant
relief unless the state court’s adjudication “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,” 28 U.S.C. §
2254(d)(1), or “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,” 28 U.S.C.
§ 2254(d)(2); see also Harrington v. Richter, 131 S. Ct. 770,
785 (2011). We must presume the correctness of the state
court’s factual findings, unless rebutted by clear and
convincing evidence. See 28 U.S.C. § 2254(e)(1).
“The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but
whether that determination was unreasonable – a substantially
higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473
(2007); see also Harrington, 131 S. Ct. at 785. “A state
court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” Harrington, 131
S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).
9
B.
The Sixth Amendment guarantees criminal defendants the
assistance of counsel during all critical stages of the criminal
justice process, as well as the implied inverse right “to
proceed without counsel when [the defendant] voluntarily and
intelligently elects to do so.” Faretta, 422 U.S. at 807. The
“defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose self-
representation.” Id. at 835. Nonetheless, “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.” Id. at 835 (internal
quotation marks omitted).
The Supreme Court, however, has never “prescribed any
formula or script to be read to a defendant who states that he
elects to proceed without counsel.” Iowa v. Tovar, 541 U.S. 77,
88 (2004). Rather, “[t]he information a defendant must possess
in order to make an intelligent election . . . will depend on a
range of case-specific factors, including the defendant’s
education or sophistication, the complex or easily grasped
nature of the charge, and the stage of the proceeding.” Id.;
see also Johnson v. Zerbst, 304 U.S. 458, 464 (1938) (“The
determination of whether there has been an intelligent waiver of
the right to counsel must depend, in each case, upon the
10
particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the
accused.”); United States v. Gallop, 838 F.2d 105, 109 (4th Cir.
1988) (“While the Faretta Court recognized the absolute right of
a defendant to represent himself as long as that decision is
made knowingly, intelligently, and voluntarily, it did not lay
down detailed guidelines concerning what tests or lines of
inquiry a trial judge is required to conduct to determine
whether the defendant’s decision was ‘knowing and
intelligent.’”). In the context of a guilty plea, for example,
the Court has held that “[t]he constitutional requirement is
satisfied when the trial court informs the accused of the nature
of the charges against him, of his right to be counseled
regarding his plea, and of the range of allowable punishments
attendant upon the entry of a guilty plea.” Tover, 541 U.S. at
81. “As to waiver of trial counsel,” the defendant “must be
warned specifically of the hazard ahead.” Id. at 88-89; see
also Patterson v. Illinois, 487 U.S. 285, 298 (1988) (noting
that because of “the enormous importance and role that an
attorney plays at a criminal trial,” the “most rigorous
restrictions” are imposed “on the information that must be
conveyed to the defendant . . . before permitting him to waive
his right to counsel.”).
11
Finally, because Faretta sets forth a general rule
governing such waivers of counsel, we must remain particularly
mindful of the leeway state courts have in applying the Faretta
rule. “‘[T]he more general the rule’ at issue – and thus the
greater the potential for reasoned disagreement among fair-
minded judges – ‘the more leeway state courts have in reaching
outcomes in case-by-case determinations.’” Renico v. Lett, 559
U.S. 766, 776 (2010) (alteration omitted) (quoting Yarborough,
541 U.S. at 664); see also Harrington, 131 S. Ct. at 786. For
similar reasons, a federal habeas court’s reliance upon circuit
court precedent interpreting or expanding such a general Supreme
Court rules is severely constrained. See Marshall v. Rodgers,
133 S. Ct. 1446, 1450 (2013).
Although an appellate panel may, in accordance with
its usual law-of-the-circuit procedures, look to
circuit precedent to ascertain whether it has already
held that the particular point in issue is clearly
established by Supreme Court precedent, it may not
canvass circuit decisions to determine whether a
particular rule of law is so widely accepted among the
Federal Circuits that it would, if presented to this
Court, be accepted as correct.
Id. at 1450-51 (citations omitted); see also Parker v. Matthews,
132 S. Ct. 2148, 2155-56 (2012) (“[C]ircuit precedent does not
constitute ‘clearly established Federal law, as determined by
the Supreme Court,” and “therefore cannot form the basis for
habeas relief under AEDPA.”). We are not at liberty to upset a
state court adjudication on a constitutional claim based upon
12
requirements that we might recommend to or even impose upon our
own district courts, so long as the state court’s application of
the general rule was a reasonable one in light of the
controlling Supreme Court mandate.
Applying these principles to the case before us, we have no
trouble concluding that the Virginia Court of Appeals’
adjudication of Spates’s Sixth Amendment waiver claim was
neither contrary to nor an unreasonable application of the
controlling Supreme Court precedent, and that the district court
erred in relying upon circuit precedent to conclude otherwise. 5
5
We note the Commonwealth’s objection to the district
court’s decision to supplement the record on federal habeas
review with a transcript that was not submitted to the Virginia
court for its consideration on appeal and, in light of the
Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct.
1388 (2011), we share the Commonwealth’s concern. As Spates
points out, Cullen involved mitigation evidence that was first
created in a federal evidentiary hearing, whereas the February
12 transcript could have been (but was not) submitted to the
Virginia Court of Appeals. Nevertheless, the district court’s
consideration of the February 12 transcript did in fact result
in precisely what AEDPA seeks to avoid -- a “[f]ederal court[]
sitting in habeas [operating as] an alternative forum for trying
facts and issues which a prisoner made insufficient effort to
pursue in state proceedings.” Id. at 1401. The district
court’s sua sponte decision to reach for evidence not submitted
to it or to the last state court that considered the matter,
although not as extreme as the situation in Cullen, thus seems
at least inconsistent with the spirit of Cullen and the
deference we owe to the procedural rules and substantive
judgments of state courts. In the end, however, it is
unnecessary for us to resolve this dispute in the Commonwealth’s
favor because, even considering the February 12 transcript, it
is clear that Spates’s Sixth Amendment claim fails under AEDPA,
and that the district court erred in concluding otherwise.
13
In Faretta, the Supreme Court, in concluding that the
petitioner was sufficiently aware of the consequences of his
choice, pointed to several case-specific facts that actually
parallel many of those in the instant case. Specifically, the
Court noted as follows:
[W]eeks before trial, Faretta clearly and
unequivocally declared to the trial judge that he
wanted to represent himself and did not want counsel.
The record affirmatively shows that Faretta was
literate, competent, and understanding, and that he
was voluntarily exercising his informed free will.
The trial judge had warned Faretta that he thought it
was a mistake not to accept the assistance of counsel,
and that Faretta would be required to follow all the
“ground rules” of trial procedure.
Faretta, 422 U.S. at 835-36. In light of these findings, the
Court additionally noted the lack of any “need [to] assess[] how
well or poorly Faretta had mastered the intricacies of the
hearsay rule and the California code provisions . . . . For his
technical legal knowledge, as such, was not relevant to an
assessment of his knowing exercise of the right to defend
himself.” Id.
Here, Spates clearly and unequivocally represented to the
trial judge on February 12 that he wanted to proceed pro se.
See J.A. 140 (“I want to represent myself, which is my right.”);
J.A. 143 (“I want to represent myself, but I want to be
prepared”). The trial judge warned Spates that the case would
involve “a jury trial [with] a lot of legal issues and legal
14
points that lawyers go to law school and gain experience in to
learn,” J.A. 129, and that his choice to represent himself was
“probably the most unwise thing that he could do,” J.A. 137.
Spates was informed that he would “be required to know when to
make an objection, [and] the basis of the objection,” that he
would have “to pick the jury,” and would “need to know
everything that the lawyers know,” J.A. 139-40, and he was
warned that he would not “be given any extra slack in this,”
J.A. 140. Although Spates pushed mightily (and successfully)
for a continuance at that time, Spates never expressed a desire
to retain substitute counsel until May 7, 2007, the scheduled
date for trial, when he again sought to force delay by revoking
his waiver and asking for a continuance. Although Spates
claimed at that time that he did not understand the procedure
and could not effectively represent himself, “his technical
legal knowledge . . . was not relevant to an assessment of his
knowing exercise of the right to defend himself,” Faretta, 422
U.S. at 836, either when he invoked that right on February 12,
or when he confirmed the waiver on April 23. The district court
erred in ruling otherwise.
As the district court observed, the trial judge did not
address Spate’s education or background on the record on
February 12. However, Faretta imposes no requirement that such
an assessment be discussed on the record, and the record
15
otherwise fully supports the Virginia court’s conclusion that
Spates was “literate, competent, and understanding.” Id. at
835. The trial judge had ample opportunity to observe Spates
during the colloquy on February 12. Moreover, Spates’s comments
reveal that he was fully capable of grasping the issues related
to self-representation. There is also no indication that
Spates’s appointed counsel believed that he was incapable of
representing himself or that Spates did not understand the
demands and dangers of proceeding without counsel. On the
contrary, counsel acknowledged Spates’s right to do so, conveyed
the differences of opinion that led to the demand, and moved to
withdraw as counsel of record and be appointed as standby
counsel instead.
The transcript from the May 7 proceeding also confirms
that, while Spates may have regretted his earlier choice, he was
fully capable of understanding his right to counsel when he
waived it. The Virginia court viewed Spates’s efforts that day
as an “attempt[] to unreasonably and unjustifiably delay the
trial, which previously had been continued.” J.A. 74; see
Faretta, 422 U.S. at 834 n.46 (“The right of self-representation
is not a license to abuse the dignity of the courtroom. Neither
is it a license not to comply with relevant rules of procedural
and substantive law.”). That determination is fully supported
16
by the record, and the district court erred in substituting its
contrary findings for those of the state court.
Pointing primarily to the February 12 transcript, Spates
argues and the district court concluded that the trial court’s
Faretta inquiry was constitutionally insufficient. But that is
not the end of the story. Spates clearly represented in the
April 23 Waiver that he had been informed of the charges against
him and the potential punishments he faced if convicted, and he
was again warned that he may be confronted with complicated
legal issues. The trial judge certified that she conducted an
oral examination of Spates, that he had been advised him of the
charges, punishments, and rights set forth therein, and found
that Spates “knowingly, voluntarily and intelligently waived his
rights to be represented by a lawyer.” J.A. 24. 6 As the
6
We can summarily dispose of Spates’s argument that the
trial court “believed it was putting the waiver issue to rest
[on February 12] and [that] nothing further would remain to be
done regarding it,” Spates Brief at 26, as well as his
unsupported allegation that “all that took place on [April 23]
with respect to self-representation was that Spates signed the
waiver form,” Spates Brief at 29. There is no evidence to
support these suppositions, nor any legal basis upon which we
could reject the Virginia court’s decision based upon them. See
Parke v. Raley, 506 U.S. 20, 29-30 (1992) (explaining that in
habeas corpus actions and other collateral challenges, “there is
no principle of law better settled, than that every act of a
court of competent jurisdiction shall be presumed to have been
rightly done, till the contrary appears”) (internal quotation
marks and alteration omitted); Johnson v. Zerbst, 304 U.S. 458,
468 (1938) (“When collaterally attacked, the judgment of a court
carries with it a presumption of regularity. Where a defendant,
(Continued)
17
Commonwealth points out, we are not at liberty to ignore the
April 23 Waiver based upon the February 12 colloquy that
preceded it, nor may we make credibility determinations and
findings of fact that contravene those made by state courts
which are supported by the record.
Here, there was more than sufficient evidence upon which
the Virginia Court of Appeals could reasonably conclude that
Spates was “made aware of the dangers and disadvantages of self-
representation,” “that he kn[ew] what he [was] doing,” and that
“his choice [was] made with eyes open.” Faretta, 422 U.S. at
835 (internal quotation marks omitted). And “[b]ecause it is
not clear that the [Virginia Court of Appeals] erred at all,
much less erred so transparently that no fairminded jurist could
agree with that court’s decision,” Bobby v. Dixon, 132 S. Ct.
26, 27 (2011) (per curiam), we must reverse the district court’s
grant of habeas relief.
REVERSED
without counsel, acquiesces in a trial resulting in his
conviction and later seeks release by the extraordinary remedy
of habeas corpus, the burden of proof rests upon him to
establish that he did not competently and intelligently waive
his constitutional right to assistance of counsel.”) (footnote
omitted).
18