Laderian McGhee v. Michael Dittmann ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1763
LADERIAN MCGHEE,
Petitioner-Appellant,
v.
MICHAEL A. DITTMANN,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:12-cv-00320-NJ — Nancy Joseph, Magistrate Judge.
____________________
ARGUED MAY 28, 2015 — DECIDED JULY 22, 2015
____________________
Before BAUER, EASTERBROOK, and RIPPLE, Circuit Judges.
RIPPLE, Circuit Judge. Laderian McGhee filed a petition for
a writ of habeas corpus in the United States District Court
for the Eastern District of Wisconsin, challenging his 2004
convictions in Wisconsin state court. In the petition, he as-
serted, among other claims, that the state court had deprived
him of his Sixth Amendment right to self-representation un-
der Faretta v. California, 422 U.S. 806 (1975). The district court
denied the petition. We granted a certificate of appealability
2 No. 14-1763
limited to his self-representation claim. For the reasons set
forth in this opinion, we affirm the judgment of the district
court.
I
BACKGROUND
A.
In the early morning hours of April 9, 2004, two women
were mugged on the street in Milwaukee, Wisconsin, and
their purses taken. A vehicle was also taken from the street
and driven to another location. Police arrested Mr. McGhee
in connection with the offenses.
Mr. McGhee was later charged in the Milwaukee County
Circuit Court with armed robbery, theft of movable property
from a person, and operating a vehicle without the owner’s
consent. The public defender’s office appointed attorney
Richard E. Thomey II as his counsel.
Mr. McGhee was tried by a jury in August 2004. On the
first day of trial, defense counsel notified the court that
Mr. McGhee wished to raise an alibi defense and requested
that he be allowed to call two unlisted witnesses. Counsel
acknowledged that he had not provided proper notice of this
defense, but explained that Mr. McGhee had not mentioned
it to him until two days before trial. Defense counsel also
moved to withdraw as Mr. McGhee’s attorney. He submit-
ted that withdrawal was warranted because (1) Mr. McGhee
wished to discharge him; and (2) based on his knowledge of
the case, he believed that putting on Mr. McGhee’s alibi de-
No. 14-1763 3
fense raised “certain ethical problems.” 1 After hearing ar-
guments from both sides, the court denied the motions.
Following the court’s rulings, Mr. McGhee asked to
speak, at which point the following exchange occurred:
THE DEFENDANT: Okay. Well, first of all,
the man never—my attorney never asked me
about no alibi. So how can I address him with
my alibi if I never even seen him? I called his
office several times. He doesn’t return my
phone calls to come see me. How can I tell him
I have a alibi if I can’t get in touch with him?
I’m in the prison. I’m incarcerated. He’s my at-
torney. He supposed to come see me. He
doesn’t come see me.
Second of all, for him to sit up here and say
something about my witnesses as far as perjury
or anything of that nature, that’s a bunch of BS
also. I don’t know where that came from.
And for you to sit up and try to tell me this
man going to be my attorney ‘cause of the 15
day thing, the man didn’t tell me nothing
about that. I’m withdrawing him as my attor-
ney. That’s the bottom line of that.
THE COURT: All right. You wanted me to
discharge him. Do you understand today we’re
going to trial today?
1 R.20 at 16.
4 No. 14-1763
THE DEFENDANT: We—I ain’t going to
no trial today.
THE COURT: We’re going to trial.
THE DEFENDANT: You might be going to
trial. I ain’t.
THE COURT: All right. Now I’ll explain to
you that if you—
THE DEFENDANT: You ain’t explain shit
to me ‘cause I ain’t going to no motherfucking
trial, period.
THE COURT: If you decide to be disrup-
tive—
THE DEFENDANT: Fuck the trial. I ain’t
going to no motherfucking trial. What part of
that don’t you understand?
MR. THOMEY: For my part, I know you
denied this motion already, but I’m asking the
Court to reconsider.
THE DEFENDANT: You going to make me
go to trial with a motherfucker that got me
guilty before I even get in this motherfucker.
MR. THOMEY: I think it’d be difficult for
he and I to cooperate in conducting his defense
in light of his recent statements.
THE COURT: All right. Mr. McGhee, I’m
going to give you an opportunity to calm
down. I’m going to give you an opportunity to
No. 14-1763 5
remain in the courtroom. However, if you’re
going to—
THE DEFENDANT: The man ain’t got my
best interest at heart. You sitting here trying to
make me go to trial with a man who already
got me convicted before the damn jury even
get in. What fucking part of that don’t you un-
derstand?
THE COURT: All right. You can remove
the defendant from the courtroom at this point.
Just before the jury comes back, I’ll give him an
opportunity to return to the courtroom.
THE DEFENDANT: I’m not returning to
this motherfucker. Evidently you don’t under-
stand. This man got me guilty before I even
fucking get in the motherfucking courtroom.
Shit. What part this jackass doesn’t under-
stand?[ 2]
The court later allowed Mr. McGhee to return to the
courtroom. Despite the court’s warnings, however,
Mr. McGhee did not stay silent for long. Shortly after the
start of voir dire, defense counsel, while introducing himself,
told prospective jurors that Mr. McGhee would be the only
defense witness. Mr. McGhee immediately objected to this
remark, stating, “Wait a minute. Wait a minute. What hap-
pened to my witnesses?” 3 It appears from the transcript that
2 Id. at 19–22.
3 Id. at 32.
6 No. 14-1763
the court initially tried to ignore Mr. McGhee’s interjection.
Mr. McGhee, however, continued to press the issue, at which
point the following colloquy took place:
THE DEFENDANT: Your Honor, I want to
know how come my witnesses can’t come? My
attorney apparently doesn’t—
THE COURT: Mr. McGhee, you get an op-
portunity to speak through your lawyer.
THE DEFENDANT: I want to—
THE COURT: We discussed this.
THE DEFENDANT: First of all, my wit-
nesses can’t come, you won’t let me fire my at-
torney. My attorney done tried to withdraw his
self from the case, and you steady trying to
make me go through with this case.
THE COURT: All right. Mr. McGhee, we’ve
gone through this before. You have an oppor-
tunity—
THE DEFENDANT: But you—Evidently
you not understanding. If the man don’t want
to represent me, the man got me as guilty al-
ready, why would I sit up here, go to trial in
front of all these people? The man sat here and
told you out his own mouth that he is not try-
ing to defend me. That doesn’t make any sense.
No. 14-1763 7
THE COURT: Mr. McGhee, this is not an
opportunity—
THE DEFENDANT: It ain’t—
THE COURT: This isn’t an opportunity for
you to argue with me.
THE DEFENDANT: Finna sit up here and
railroad me. I’m not finna sit up here like no
idiot. Let the man sit here. He done told you he
is not trying to defend. The man ain’t even
called none of my witnesses. Want me to sit up
here go against four people against me. I can’t
call none of my witnesses in front of all these
people. What you think, I’m fucking stupid?
THE COURT: Mr. McGhee, if you’re going
to continue like this, you’ve been warned.
THE DEFENDANT: Fuck warned. I’m tell-
ing you if I can’t have my witnesses, fuck this
trial too. Simple as this. I’m not finna—Nobody
in this damn trial sit up here with no lawyer
that sat there and told you he not going to de-
fend you.
THE COURT: Mr. McGhee.
THE DEFENDANT: Nobody in this jury sit
up here and let the man—
THE COURT: Ladies and gentlemen, at
this point we’re going to take a recess.
8 No. 14-1763
Excuse the jury.
(Jury excused.)
THE DEFENDANT: He said all this, and
this judge won’t do shit about it. Fucking right,
and remember that shit too. The motherfucker
said he wasn’t defending me. This man still go-
ing to make me go to court with this mother-
fucker. They won’t let me have my mother-
fucking witnesses but want me to go to court.
Why the fuck would I go to court with a moth-
erfucker that got me sent to prison already? I
don’t need a motherfucking microphone. Re-
member that shit. All niggers ain’t stupid. I
ain’t finna sit up here and let your ass railroad
me or you either. Sit in this motherfucking
courtroom like I’m a fucking dummy. Sit up
here and accept this shit.
THE COURT: All right. Mr. McGhee, are
you going to remain silent while we’re pro-
ceeding today—
THE DEFENDANT: Man—
THE COURT: —or are you going to have
continued outbursts in the manner you are?
THE DEFENDANT: Man, whatever.
THE COURT: I’m going to give you a
chance, Mr. McGhee, to be quiet and sit there
No. 14-1763 9
during the course of this trial, selection of the
jury.
THE DEFENDANT: You expect me to sit
here and not say nothing in my own defense?
You expect me—This man ain’t speak up for
me. Somebody got to speak up for me. If I
don’t do it, who going to do it?
THE COURT: Mr. McGhee, if you’re not
going to be quiet while we select the jury—
THE DEFENDANT: Go ahead, select them.
THE COURT: Are you going to remain
quiet?
THE DEFENDANT: Go ahead, select them.
THE COURT: If you have another outburst
like that, I’m going to remove you from the
courtroom. Do you understand that?
THE DEFENDANT: I be removed from
this motherfucker sooner or later anyhow.
Come on.
THE COURT: Are you going to be quiet?
THE DEFENDANT: I’ll let you all select
them. I done say what I had to say.
10 No. 14-1763
THE COURT: All right.[ 4]
Following this exchange, the court took a short recess,
during which time Mr. McGhee was equipped with a stun
belt to prevent further disruptions. Upon reconvening, de-
fense counsel renewed his motion to withdraw, stating, “I
think the only way that [Mr. McGhee] can really get a fair
trial now is with a new attorney whom he has confidence in
and who, from the outset, can explore this alibi defense that
he has.” 5 The court denied the motion.
Before bringing the jury back in, the court gave
Mr. McGhee the option of being handcuffed to his chair ra-
ther than wearing the stun belt:
THE COURT: …Instead of the stun belt
and the wheelchair and shackle, we will hand-
cuff you and those handcuffs can then be hid-
den underneath the table if you sit quietly and
you sit up close to the table. And there’s a skirt
around the table, and the jury won’t see any of
that.
THE DEFENDANT: I don’t care if the jury
see it or not, Your Honor. Don’t make no sense.
I mean, don’t make no difference whether they
see it or not ‘cause I’m not being represented
like I supposed to. And I demand and the man
asked to withdraw from the case to you three,
four times. What attorney do you know does
4 Id. at 34–37.
5 Id. at 44.
No. 14-1763 11
that? And I don’t know, for some reason you
just got it in your head that you just going to
make me keep him as an attorney, make him—
I don’t know. I don’t know. Maybe it’s some-
thing, but I don’t know.[ 6]
The court eventually decided to leave Mr. McGhee in the
stun belt, but to seat him in a regular chair with a belly
chain.
After ensuring that Mr. McGhee’s chains were not visible
to the jury, the court gave Mr. McGhee a final warning about
being disruptive, triggering the following exchange:
THE COURT:…Mr. McGhee, again I’m just
going to warn you, if you become disruptive
and you shout out once again, we’ll have to
remove the jury and remove you from the
courtroom and complete the—
THE DEFENDANT: Okay. Well, just give
me a chance to speak like everybody else.
That’s all I ask. If I can speak, we’ll have no
problems.
THE COURT: Sir, you’re going to speak
through your lawyer.
THE DEFENDANT: I can’t speak to my
lawyer as you already know. I don’t know why
you keep saying that. We wouldn’t have this
problem—
6 Id. at 46–47.
12 No. 14-1763
MR. THOMEY: Do you mean you want to
speak throughout the trial or speak when it’s
your turn to be a witness?
THE DEFENDANT: I mean speak when
they saying something. You going to speak up
for it. I’m going to speak up for myself if
somebody got to say it. Judge ain’t going to say
it for me.
MR. THOMEY: I can’t tolerate putting on
that kind of defense. I’m going to have a sec-
ond chair.
THE COURT: I’m not going to allow it. If
he engages in that, I’m going to remove him
from the courtroom.
THE DEFENDANT: You’re telling me I
can’t tell my attorney to speak up for me?
THE COURT: You can talk to your lawyer
quietly and not shout it out for everybody to
hear in the courtroom.
THE DEFENDANT: Ain’t talking about
shout it out.
THE COURT: During the course of the tri-
al, you’ll have opportunities to speak with
your lawyer. If you become disruptive, you in-
terrupt the questioning of the jury, you inter-
rupt the questioning of any witnesses, we’ll
remove you from the courtroom.
THE DEFENDANT: If he don’t—You
know what, go ahead with the trial.
No. 14-1763 13
THE COURT: All right. Let’s bring the jury
back out.[ 7]
In the proceedings that followed, Mr. McGhee did not again
speak out of turn in front of the jury.
The jury found Mr. McGhee guilty on all counts. The
court sentenced him to seventeen years’ imprisonment fol-
lowed by ten years of extended supervision.
B.
On direct appeal, the Court of Appeals of Wisconsin af-
firmed Mr. McGhee’s conviction. Mr. McGhee then filed a
petition for review in the Supreme Court of Wisconsin; the
court denied his petition as untimely.
In response, Mr. McGhee returned to the court of ap-
peals, where he filed a motion seeking to reinstate his right
to a direct appeal, claiming that his trial and appellate coun-
sel had been ineffective. The court of appeals denied his mo-
tion, reasoning that Mr. McGhee could pursue his ineffective
assistance claim in collateral proceedings under State v.
Knight, 484 N.W.2d 540 (Wis. 1992). Knight sets out the ap-
propriate procedure for pursuing an ineffective assistance of
appellate counsel claim in Wisconsin courts. In particular,
Knight requires that such a claim be pursued via a habeas
petition filed in the court that considered the direct appeal.
“Such proceedings have come to be known in Wisconsin as
‘Knight petitions.’” McGee v. Bartow, 593 F.3d 556, 561 n.2
(7th Cir. 2010).
7 Id. at 53–55.
14 No. 14-1763
C.
In November 2007, Mr. McGhee filed a petition for post-
conviction relief in the Milwaukee County Circuit Court. In
the petition, he asserted, among other claims, that the trial
court had erred by not allowing his “request for substitution
of counsel.” 8
The court denied the petition. With respect to the substi-
tution issue, the court concluded that “[t]he defendant’s fail-
ure to pursue this issue on [direct] appeal preclude[d] him
from raising [the] issue in the circuit court” on collateral re-
view. 9 As for whether his counsel had been “ineffective for
failing to pursue this issue on appeal,” the court concluded
that that claim was one which would have to “be addressed
to the appellate court under Knight.” 10
Mr. McGhee did not pursue his substitution-of-counsel
argument on appeal. The court of appeals affirmed the cir-
cuit court’s denial of his other claims, and the Supreme
Court of Wisconsin denied discretionary review.
In October 2009, Mr. McGhee filed a federal habeas peti-
tion in the district court, alleging, among other claims, that
the state trial court had “erred in denying [his request for]
substitution of trial counsel.” 11 In July 2010, he filed a letter
8 R.17 at 53–55.
9 Id. at 70.
10 Id.
11 R.1 at 16.
No. 14-1763 15
seeking to withdraw voluntarily his petition in order to pur-
sue reinstatement of his direct appeal rights. The district
court granted the motion.
Returning to the state supreme court, Mr. McGhee filed a
petition for a writ of habeas corpus seeking to have his ap-
pellate rights reinstated. The court granted the writ, reinstat-
ed and deemed timely filed the petition for review in his di-
rect appeal, and denied the petition.
Mr. McGhee then filed a petition for a writ of habeas cor-
pus in the state court of appeals under Knight. He asserted
that his appellate counsel had been ineffective by failing to
appeal the trial court’s denial of his “request to dispense
with his court appointed attorney and represent himself.” 12
The court of appeals denied the petition. It concluded that
Mr. McGhee never had “clearly and unequivocally de-
clare[d] [a] desire to represent himself” and thus that his
“appellate counsel [could not] be faulted for not arguing
[the] issue.” 13 The Supreme Court of Wisconsin denied re-
view.
D.
In April 2012, Mr. McGhee filed a pro se petition for a
writ of habeas corpus in the district court. In his petition, he
asserted, among other claims, that the state trial court had
12 R.19 at 127.
13 Id. at 212.
16 No. 14-1763
violated his “right to discharge counsel and ‘SPEAK FOR
HIMSELF’ (by appearing pro se).” 14
In its answer, the State contended that Mr. McGhee had
not exhausted his self-representation claim. Specifically, it
submitted that he had failed to raise the claim on direct ap-
peal and that, when he later did so during his state habeas
proceedings, it was within the context of an ineffective-
assistance claim. The State also defended Mr. McGhee’s con-
viction on the merits, contending (1) that he never clearly
and unequivocally asserted his right to self-representation,
and (2) that he forfeited his right to self-representation based
on his disruptive conduct.
The district court denied Mr. McGhee’s petition. With re-
spect to his self-representation claim, the court determined
that the state court of appeals’s ruling on his Knight petition
was sufficient to satisfy the exhaustion requirement for fed-
eral habeas review. Turning to the merits, the court conclud-
ed that Mr. McGhee’s request to proceed pro se was ambig-
uous and thus that the state court had not erred in denying
his Faretta claim. The court declined to issue a certificate of
appealability.
Mr. McGhee timely appealed and sought a certificate of
appealability from this court with respect to his Faretta claim
only. We granted the certificate. 15
14 R.1 at 11.
15The district court had jurisdiction over Mr. McGhee’s petition under
28 U.S.C. § 2254(a). Our jurisdiction is secure under 28 U.S.C. §§ 1291
and 2253(a).
No. 14-1763 17
II
DISCUSSION
On appeal, Mr. McGhee contends that his 2004 convic-
tions were obtained in violation of his Sixth Amendment
right to self-representation and that the state court’s deter-
mination that he had not clearly and unequivocally invoked
that right was objectively unreasonable. 16 We review the dis-
16 On appeal, the State does not contend, as it did before the district
court, that Mr. McGhee procedurally defaulted on his self-representation
claim by failing to assert it on direct appeal. Compare Lewis v. Sternes, 390
F.3d 1019, 1026 (7th Cir. 2004) (concluding that an ineffective assistance
claim was insufficient to exhaust “the underlying issue that the attorney
in question neglected to raise”), with McGhee v. Bartow, 593 F.3d 556, 567
n.9 (7th Cir. 2010) (“[W]e have recognized that in some circumstances,
where ineffective assistance claims are presented as a means to reach the
embedded claims and those claims are the real substance of a petitioner’s
challenge, we will consider them fairly presented.” (internal quotation
marks omitted)). Indeed, when the issue was raised at oral argument,
counsel for the State openly acknowledged that it was “not arguing pro-
cedural default,” explaining (in an apparent about-face) that
Mr. McGhee’s Knight petition was sufficient to preserve his Faretta claim
for federal habeas review. Oral Argument at 9:41. Because the State has
declined to pursue this issue on appeal, we need not address it here. The
procedural default doctrine “is an affirmative defense that the State is
obligated to raise and preserve, and consequently one that it can waive.”
Eichwedel v. Chandler, 696 F.3d 660, 669 (7th Cir. 2012) (internal quotation
marks omitted). Here, because the State concedes that it is “not arguing
procedural default,” we consider the issue waived. See id. at 670 (con-
cluding that the State had waived a procedural default defense by delib-
erately choosing not to assert it); see also United States v. Webster, 775 F.3d
897, 904 (7th Cir. 2015) (noting that arguments not raised in a party’s
opening brief are waived).
18 No. 14-1763
trict court’s denial of Mr. McGhee’s habeas petition de novo.
Smith v. Brown, 764 F.3d 790, 795 (7th Cir. 2014).
Under the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a federal court may grant habeas relief to a peti-
tioner whose claim has been “adjudicated on the merits in
State court,” only if the state court’s adjudication of that
claim (1) “was contrary to, or involved an unreasonable ap-
plication of, clearly established Federal law, as determined
by the Supreme Court of the United States,” or (2) “was
based on an unreasonable determination of the facts in light
of the evidence presented.” 28 U.S.C. § 2254(d). “‘Unreason-
able’ in [the AEDPA] context means more than just incorrect;
it means something…lying well outside the boundaries of
permissible differences of opinion.” Corcoran v. Neal, 783
F.3d 676, 683 (7th Cir. 2015) (internal quotation marks omit-
ted). “The relevant decision for purposes of our assessment
under AEDPA is the decision of the last state court to rule on
the merits of the petitioner’s claim,” Eichwedel v. Chandler,
696 F.3d 660, 671 (7th Cir. 2012) (internal quotation marks
omitted)—in this case, the decision of the Court of Appeals
of Wisconsin denying post-conviction relief.
The Supreme Court’s decision in Faretta v. California, 422
U.S. 806 (1975), establishes the substantive law governing
our analysis of Mr. McGhee’s claim. In Faretta, the Court
held that criminal defendants have a Sixth Amendment right
to self-representation, see id. at 819, and that, to exercise that
right, a defendant must “knowingly and intelligently” waive
his right to counsel, see id. at 835. The Court further conclud-
ed that, under the facts of the case, the defendant’s right to
self-representation had been violated. See id. at 835–36. In
reaching this conclusion, the Court emphasized, among oth-
No. 14-1763 19
er facts, that the defendant had “clearly and unequivocally
declared to the trial judge that he wanted to represent him-
self and did not want counsel.” Id. at 835. On the basis of this
language, many courts, including the Court of Appeals of
Wisconsin, have interpreted Faretta as requiring that a de-
fendant “clearly and unequivocally” articulate a desire to
represent himself in order to invoke his Faretta rights. 17
Here, Mr. McGhee does not contest this widely held view
of Faretta. Rather, he contends that he is entitled to habeas
relief because the state court’s determination that he had not
clearly and unequivocally invoked his Faretta rights was ob-
jectively unreasonable. Specifically, he submits that his de-
sire for self-representation was evident from the following:
(1) his repeated demands to discharge his attorney, (2) his
declaration that he was going to “speak up for [himself]”
and that he could not be “expect[ed]…to sit [t]here and…say
nothing in [his] own defense,” and (3) his request “to speak
like everybody else.” 18 Taken together, Mr. McGhee asserts,
these statements leave “no question that [he] was requesting
17 See United States v. Oakey, 853 F.2d 551, 553 (7th Cir. 1988) (“A demand
to proceed pro se must be unequivocal.”); Gill v. Mecusker, 633 F.3d 1272,
1293 (11th Cir. 2011) (“Although Faretta was not primarily concerned
with clarity and equivocation in making a request to proceed pro se, it is
clear from the Court’s decision that a trial court’s obligation to conduct a
‘Faretta hearing,’ at which a defendant is made aware of the dangers and
disadvantages of self-representation, is triggered by the defendant’s clear
and unequivocal assertion of a desire to represent himself.” (alteration
omitted) (internal quotation marks omitted)); State v. Darby, 766 N.W.2d
770, 776–78 (Wis. Ct. App. 2009) (collecting cases).
18 R.20 at 36–37, 53; Appellant’s Br. 27–28.
20 No. 14-1763
to represent himself.” 19 In response, the State submits that
none of Mr. McGhee’s statements, “whether viewed in isola-
tion or in [the] aggregate, amount to a clear and unequivocal
invocation of [his] right [to] self-representation.” 20
The State’s argument makes clear that the Court of Ap-
peals of Wisconsin reached a reasonable conclusion.
Mr. McGhee never clearly articulated a desire to represent
himself. A request to discharge counsel, without more, ordi-
narily does not signal a clear desire for self-representation.
See United States v. Long, 597 F.3d 720, 724 (5th Cir. 2010)
(“[S]omething more than just firing one’s attorney is re-
quired before one clearly and unequivocally requests to pro-
ceed pro se.”). Here, although Mr. McGhee did request, ex-
plicitly, to discharge his attorney, he never asked to forego
counsel entirely. 21 Tellingly, when asked whether he was
ready to proceed to trial that day without counsel,
Mr. McGhee did not ask to represent himself, but rather de-
clared that he was not “going to no trial today.” 22 Because
this statement suggests that Mr. McGhee was “seeking more
time to retain other counsel rather than seeking to proceed
19 Appellant’s Br. 29.
20 Appellee’s Br. 29.
21 Although Mr. McGhee certainly was frustrated with the proceedings
and with the performance of his attorney, statements expressing such
frustration do not clearly communicate a desire to conduct one’s own
defense. See United States v. Conlan, 786 F.3d 380, 391 (5th Cir. 2015) (“A
general expression of dissatisfaction with an attorney should not be con-
strued as an invocation of the Faretta right to represent oneself….” (in-
ternal quotation marks omitted)).
22 R.20 at 20.
No. 14-1763 21
pro se,” we cannot conclude that it expresses a clear desire
for self-representation. United States v. Jones, 938 F.2d 737,
742 (7th Cir. 1991); see also United States v. Loya-Rodriguez, 672
F.3d 849, 857 (10th Cir. 2012) (noting that conduct which
could be construed as “result[ing] from a desire for different
counsel” does not clearly and unequivocally express a desire
for self-representation).
Similarly, Mr. McGhee’s declaration that he was going to
“speak up for [himself]” and that he could not be “ex-
pect[ed] …to sit [t]here and…say nothing in [his] own de-
fense” do not clearly communicate a desire to proceed with-
out counsel. 23 Mr. McGhee made these statements during
the course of an expletive-ridden tirade against the court’s
earlier rulings excluding his witnesses and denying the
withdrawal of his attorney. During that outburst, he accused
the court of trying to “railroad” him and stated that he was
not going to “sit…[t]here and accept” it. 24 Further, when
warned about his behavior, Mr. McGhee responded, “Fuck
warned. I’m telling you if I can’t have my witnesses, fuck
this trial too.” 25 Viewed in this context, Mr. McGhee’s desire
to “speak up for [himself]” suggests an intent to disrupt the
proceedings rather than a request for self-representation.
Finally, Mr. McGhee’s request “to speak like everybody
else” does not clearly express a desire for self-
representation. 26 Whether considered in isolation or in con-
23 Id. at 36–37.
24 Id. at 36.
25 Id. at 35.
26 Id. at 53.
22 No. 14-1763
text, this statement is ambiguous. See Loya-Rodriguez, 672
F.3d at 858 (concluding that a defendant’s request “to com-
municate…, personally and verbally, during the following
hearings, with the Court,…without the help of an attorney”
did not clearly indicate a desire for self-representation). At
the time Mr. McGhee made this request, he had just been
reprimanded for his disruptive courtroom behavior. When
asked what he meant by the request, Mr. McGhee respond-
ed, “I mean speak when they saying something. You going
to speak up for it. I’m going to speak up for myself if some-
body got to say it. Judge ain’t going to say it for me.”27 The
court understood these remarks as a request for permission
to interrupt the proceedings. In light of Mr. McGhee’s prior
disruptive conduct, we believe that the court’s interpretation
of his remarks was reasonable. 28 Thus, even if his request to
“speak like everybody else” could be interpreted as a re-
quest to proceed without counsel, it certainly does not con-
stitute a clear and unequivocal demand to do so. See Burton v.
Collins, 937 F.2d 131, 134 (5th Cir. 1991) (“The fact that there
is more than one reasonable interpretation of the dialog be-
tween Burton and the trial judge is, in a sense, the best evi-
dence that Burton did not clearly and unequivocally assert
his right to self-representation.”); cf. United States v. Best, 426
27 Id. at 54.
28 We also note that Mr. McGhee did nothing to correct the court’s al-
leged misunderstanding of his request. Rather, after the court made clear
that it understood his remarks as a request for permission to interrupt
the proceedings, Mr. McGhee responded, “You’re telling me I can’t tell
my attorney to speak up for me?” Id. Such a statement does not sound
like the response of a defendant wishing to represent himself; indeed, it
suggests exactly the opposite.
No. 14-1763 23
F.3d 937, 942 (7th Cir. 2005) (noting that “we will indulge
every reasonable presumption against [a defendant’s] waiv-
er” of his Sixth Amendment right to counsel (internal quota-
tion marks omitted)).
Viewing these various requests together, as Mr. McGhee
suggests, does not change our conclusion. Whether consid-
ered individually or in the aggregate, Mr. McGhee’s state-
ments do not clearly and unequivocally communicate a de-
sire for self-representation. The state court’s decision was
certainly not unreasonable. The district court properly de-
nied habeas relief.
Conclusion
Because the state court reasonably determined that
Mr. McGhee had not clearly and unequivocally invoked his
Faretta rights, the judgment of the district court is affirmed.
AFFIRMED