Gerald Eugene Stano, Cross-Appellee v. Richard L. Dugger, Secretary, Florida Department of Corrections, Cross-Appellant , 889 F.2d 962 ( 1989 )

TJOFLAT, Chief Judge:

In this case, Gerald Eugene Stano appeals from the district court’s denial of his petition for a writ of habeas corpus. Because we conclude that the State of Florida violated Stano’s rights under the sixth and fourteenth amendments to the United States Constitution, we reverse the district court and direct that, on receipt of our mandate, the district court grant Stano’s petition.

I.

On August 15, 1982, Stano confessed to the murder of Susan Biekrest, whose body was discovered on December 19, 1975, floating in Spruce Creek in Volusia County, Florida. A forensic examination revealed that Biekrest had died the previous day from suffocation caused by strangulation and drowning. On October 8, 1982, two months after confessing to the Biekrest murder, Stano confessed to the murder of Mary Kathleen Muldoon, whose body was discovered in November 1977, lying face down in a drainage ditch in an isolated area of New Smyrna Beach, Florida. Forensic examination revealed that Muldoon died as the result of a gunshot wound to the head as well as drowning. On January 18, 1983, a Florida grand jury indicted Stano for the murders of Biekrest and Muldoon.

On March 11, 1983, the Volusia County Circuit Court held an arraignment, and Sta-no tendered a plea of guilty on each charge. Following an exchange between Stano’s attorney, the trial judge, and Stano, the judge accepted Stano’s guilty pleas. On June 13, 1983, the judge imposed the death penalty in both cases.

On appeal, the Supreme Court of Florida affirmed Stano’s convictions and his death sentence. See Stano v. State, 460 So.2d 890 (Fla.1984), cert. denied, 471 U.S. 1111, 105 S.Ct. 2347, 85 L.Ed.2d 863 (1985). The Governor of Florida subsequently signed a warrant for Stano’s execution. Stano then petitioned the state courts for post-conviction relief, which the Supreme Court of Florida ultimately denied. See Stano v. State, 520 So.2d 278 (Fla.1988).

On April 27, 1988, the Governor of Florida again issued a warrant for Stano’s execution. Stano proceeded to mount another attack against his convictions in the state courts, and on May 16, 1988, the Supreme Court of Florida denied him relief. See Stano v. Dugger, 524 So.2d 1018 (Fla.1988). On May 17,1988, Stano petitioned the United States District Court for the Middle District of Florida for a writ of habeas corpus. After conducting an evidentiary hearing, the court on the same day denied Stano’s petition. On May 18, 1988, this court granted Stano’s petition for a certificate of probable cause and for a stay of execution. See Stano v. Dugger, 846 F.2d 1286 (11th Cir.1988). Stano now appeals from the district court’s denial of habeas relief. We address Stano’s claim that the trial court’s acceptance of his guilty pleas denied him his right to assistance of counsel under the sixth and fourteenth amendments to the United States Constitution.¹

II.

The sixth amendment to the United States Constitution provides, in pertinent part, that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his de-fence.” U.S. Const, amend. VI.² The federal courts have long recognized this right to counsel as fundamental to our criminal justice system. As Justice Sutherland wrote in 1932 for the Court in Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932):

The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. If that be true of men of intelligence, how much more is it true of the ignorant and illiterate, or those of feeble intellect. If in any case, civil or criminal, a state or federal court were arbitrarily to refuse to hear a party by counsel, employed by and appearing for him, it reasonably may not be doubted that such a refusal would be a denial of a hearing, and, therefore, of due process in the constitutional sense.

Id. at 68-69, 53 S.Ct. at 64.

The importance of this right to counsel has led the courts to adopt special safeguards in order to prevent defendants from being deprived of its protection. For example, “[i]t has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 1449 n. 14, 25 L.Ed.2d 763 (1970). Thus, a petitioner can obtain relief from ineffective assistance of counsel if petitioner was prejudiced by serious deficiencies in counsel’s performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). “In some cases,” moreover, the Supreme Court has held that “the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided.” United States v. Cronic, 466 U.S. 648, 654 & n. 11, 104 S.Ct. 2039, 2044 & n. 11, 80 L.Ed.2d 657 (1984) (quoting United States v. Decoster, 624 F.2d 196, 219 (en banc) (MacKinnon, J., concurring), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979)); see Penson v. Ohio, — U.S. -, -, 109 S.Ct. 346, 353-54, 102 L.Ed.2d 300 (1988). Whereas the ineffeetive-assistance-of-coun-sel analysis under Strickland focuses on counsel’s actual performance at trial, Strickland, 466 U.S. at 686-87, 104 S.Ct. at 2064, the analysis under Cronic looks to “the circumstances surrounding [counsel’s] representation,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046.

As an additional safeguard, although courts have recognized a defendant’s right to self-representation, before a trial court allows a defendant to invoke that right and relinquish the benefits of counsel, the court must ensure that the defendant does so “knowingly and intelligently,” fully “aware of the dangers and disadvantages of self-representation.” Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 2541, 45 L.Ed.2d 562 (1975).

The present case implicates both of these safeguards and can therefore be analyzed under either the ineffective-assistance-of-eounsel rubric articulated in Cronic or under the waiver-of-counsel rubric articulated in Faretta. Under either analysis, however, the result is the same: in accepting Stano’s guilty plea, the trial judge clearly denied Stano his sixth amendment right to assistance of counsel. We apply both analyses in turn.

III.

Crucial to our consideration of Sta-no’s sixth amendment claim is the exchange that took place at the sentencing hearing between Stano’s court-appointed lawyer, Mr. Pearl, the trial judge, and Sta-no himself. This exchange began with a statement by Mr. Pearl in which he told the court that he had not yet received discovery from the State and thus, not knowing what sort of evidence the State had, could not advise Stano on how to plead:

MR. PEARL: Before proceeding, Your Honor, as I have told Mr. Stano I would do, there are a couple of things I would like to inform the Court about in his presence that might appropriately be made a part of the plea dialogue.

At this time, Your Honor, I have not yet received full discovery from the state with respect to these cases and, therefore, am not prepared to say that I know all of the substantive facts concerning these two killings. The delay has been because much of the materials has not yet been received by the State and [the prosecutor] told me he would like to gather everything up at once and submit it to me rather than in installments. I agreed with that.

THE COURT: So, you’re not complaining, you’re just stating this for the record.

MR. PEARL: No, that is not a complaint. I'm just making my position clear in Mr. Stano’s presence about the entry of his plea; that is to say, that I am not fully prepared to advise him as to whether the State has sufficient evidence to convict him or not. He is convinced that they do.

I have spoken with [the prosecutor]. I have confidence, certainly, in his integrity and honesty, and he assures me that the State can independently establish the corpus delicti in both of these cases. And Mr. Stano tells me that that is so.

Further, I have asked him about the admissions or confessions that he has made to Detective Paul Crow. And he assures me that those statements were made voluntarily, they were made competently, and intelligently after warning of his rights and that, therefore, there does not exist a good possibility that either of his admissions could be suppressed on a hearing.

He feels that he wants to go forward and enter this plea rather than go through a trial or even a delay at this time.

I have agreed that certainly he has the right to do so, but that he should know, and it should be on the record, that I am not fully prepared at this time as his attorney to advise him with respect to the advisability of a trial or not.

He tells me he does not want a trial.

THE COURT: Okay.

Mr. Stano, do you care to comment on what Mr. Pearl has just said?

THE DEFENDANT: No. I believe everything was quite sufficient that he said.

THE COURT: He stated things accurately?

THE DEFENDANT: Yes.

THE COURT: You’re in agreement with what he said?

THE DEFENDANT: Yes, sir.

(Emphasis added.)

This exchange supports two different characterizations of the status of Stano’s legal representation during the plea hearing: either (1) Stano in fact proceeded pro se or (2) Stano had a lawyer who, through no fault of his own, could provide no legal advice whatsoever. Under either characterization, the trial judge’s acceptance of Stano’s plea deprived Stano of his sixth amendment right to assistance of counsel. We discuss each possibility in turn.

A.

The first possibility suggested by this colloquy is that Stano in fact represented himself in pleading guilty at the hearing. We reach this conclusion by considering the effect of Mr. Pearl’s statement to the court. Mr. Pearl described, in an entirely forthcoming manner, his inability to advise Stano on how to plead. Mr. Pearl was uncomfortable with his inability to advise Stano; therefore, at the end of his statement when he declared, “I am not fully prepared at this time as his attorney to advise him,” Mr. Pearl might well have meant (and the court might well have understood him to mean) that he could not serve as Stano’s attorney. In other words, Mr. Pearl might have been saying that he could not advise, i.e., represent, Stano as his attorney.

Of course, Mr. Pearl had already noted that Stano wanted to plead guilty and had also agreed “that certainly he has the right to do so.” By this, Mr. Pearl might well have meant that Stano could plead as he wanted but would be proceeding on his own without an attorney’s assistance. The effect of Mr. Pearl’s statement, then, was to force Stano to represent himself at the plea hearing.

Stano, however, never actually requested to proceed pro se, nor does the record provide any indication that Stano understood he was proceeding in that capacity. The trial judge failed entirely to inform Stano that he was entitled to assistance of counsel or to ensure that Stano understood he was without counsel. The judge merely asked whether Stano cared to comment on Mr. Pearl’s statement or agreed with that statement. The judge never asked, let alone ensured, whether Stano understood the significance of that statement — i.e., that if Stano chose to plead, he would be proceeding pro se.

Under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the judge's acceptance of Stano’s plea under these circumstances denied Sta-no his sixth amendment right to counsel. In Faretta, the Court recognized a criminal defendant’s right to proceed pro se, but required trial courts to ensure that a defendant has waived his right to counsel “knowingly and intelligently.” Id. at 835, 95 S.Ct. at 2541. As the Faretta Court explained, the defendant “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. In order to ensure that a defendant is aware of the risks of self-representation, trial courts must apply a number of safeguards, preferably including a waiver hearing. See Fitzpatrick v. Wainwright, 800 F.2d 1057, 1065 (11th Cir.1986). Two requirements are crucial before a court will allow a defendant to relinquish his right to counsel: (1) a defendant must clearly and unequivocally assert his right to self-representation; and (2) a court must make sure that a defendant understands the risks and disadvantages of self-representation. Id. at 1064-65 (citing Faretta, 422 U.S. at 835, 95 S.Ct. at 2541).

In this case, neither requirement was met before the court allowed Stano to relinquish the assistance of counsel. First, Stano never made any statement that even resembled an assertion of his right to self-representation, let alone an assertion that reached the level of clarity and unequivocalness required by Faretta. Second, the record provides no indication that Stano understood the risks and disadvantages of self-representation, and the court certainly took no steps to ensure that Stano had such an understanding. The record leaves no room for doubt that Stano failed to make the knowing and intelligent waiver required by Faretta, and by allowing him to relinquish the benefits of counsel under these circumstances, the trial court denied Stano his sixth amendment right to assistance of counsel.³

B.

The second possibility suggested by the exchange at the plea hearing is that Stano neither invoked his right to self-representation nor waived his right to counsel and that Mr. Pearl continued as Stano’s attorney throughout the hearing. According to this interpretation, when Mr. Pearl stated that he was “not fully prepared at this time as [Stano’s] attorney to advise him,” Mr. Pearl was not stating that he could not represent Stano. On the contrary, he was emphasizing his role as Stano’s attorney and his responsibility as such to give his client advice. However, as a result of a delay, which was entirely beyond his control, Mr. Pearl had not received discovery from the State and therefore simply could not advise his client. Through no fault of Mr. Pearl’s, then, the circumstances surrounding the State’s release of discovery rendered him incapable of providing Stano with any meaningful legal assistance.

Under this characterization, the trial court’s acceptance of Stano’s plea remains just as erroneous, but under the ineffective-assistance-of-counsel doctrine articulated in United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). As we recently explained in Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir.1989), Cronic carves out an exception to the “general rule that a petitioner claiming ineffective assistance of counsel must demonstrate that he was prejudiced by errors in his counsel’s performance.” See generally Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984). Whereas the Strickland test focuses on counsel’s actual performance during the course of the representation, id. at 687, 104 S.Ct. at 2064, Cronic looks to “the circumstances surrounding the representation,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. If under those circumstances, “the likelihood that counsel could have performed as an effective adversary was so remote as to have made the trial inherently unfair,” id. at 660-61, 104 S.Ct. at 2048, then ineffectiveness of counsel can be presumed “without inquiry into counsel’s actual performance at trial,” id. at 662, 104 S.Ct. at 2048.⁴

In the present case, the circumstances surrounding Mr. Pearl’s representation of Stano — the State’s failure to release discovery materials — “prevented [him] from assisting the accused during a critical stage of the proceeding.” See Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25. Under those circumstances, as the Court stated in Cronic, “although counsel [was] available to assist the accused ..., the likelihood that any lawyer, even a fully competent one [as Mr. Pearl was here], could provide effective assistance [was] so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.” Id. at 659-60, 104 S.Ct. at 2047.

Under Cronic, therefore, we must presume that Stano was prejudiced by Mr. Pearl’s inability to give advice and grant him relief on grounds of ineffective assistance of counsel.

IV.

Under either Faretta or Cronic, then, this court has no choice but to conclude that the trial judge committed error in accepting Stano’s guilty plea — either without a more complete inquiry into Stano’s understanding of his right to self-representation or in light of the circumstances that prevented Mr. Pearl from advising his client. We therefore reverse the district court and direct that, on receipt of our mandate, the district court grant Stano’s petition for writ of habeas corpus.

IT IS SO ORDERED.

1 . Stano raises various other challenges on appeal, but our disposition of his sixth amendment claim makes unnecessary any consideration of these other claims.

2 . The sixth amendment applies to the states through incorporation into the fourteenth amendment. See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). For convenience, we refer to the right to counsel in state courts as a sixth amendment right.

3 . The dissent argues that Stano never intended to invoke his right to self-representation and therefore that no such right ever attached in this case. In the dissent’s view, the trial court as a result had no reason "to conduct an inquiry to ensure that Stano realized the disadvantages of proceeding without counsel." The dissent’s focus on Stano’s intent, however, is misplaced. A court’s obligation under Faretta does not depend upon whether a defendant intends to proceed pro se, but rather upon whether the defendant is in fact proceeding pro se. If the defendant is in fact proceeding pro se, whether or not he has intended to invoke his right to self-representation, the court's obligation under Faretta applies. Indeed, a primary purpose of Faretta's "knowing and intelligent waiver” requirement is to ensure that a defendant both understands that he is proceeding pro se and intends to do so.

4 . The dissent does not seem to grasp the distinction between Strickland and Cronic. In rejecting our application of Cronic to the present case, the dissent analyzes Mr. Pearl’s specific actions and concludes that his representation was competent under the circumstances. In so doing, the dissent conducts a Strickland analysis under the guise of Cronic. Rather than an analysis of particular aspects of Mr. Pearl’s performance, Cronic calls for an inquiry into "the circumstances surrounding the representation.”

In Cronic, the defendant's attorney was appointed twenty-five days before defendant’s trial on mail fraud charges involving numerous documents. The Court of Appeals reversed defendant's conviction, concluding that circumstances had hampered the attorney’s preparation of the case and had thus deprived the defendant of effective assistance of counsel. The Supreme Court reversed the Court of Appeals, holding that the case was not one in which the surrounding circumstances made the effective assistance of counsel so unlikely as to warrant a presumption of prejudice. The Court cited Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932), as a case in which the surrounding circumstances did warrant such a presumption. In Powell, the defense attorney was given a day to prepare for trial, which, as the Court in Cronic declared, "made it so unlikely that any lawyer could provide effective assistance that ineffectiveness was properly presumed without inquiry into actual performance at trial.” Id. 466 U.S. at 661, 104 S.Ct. at 2048.