Jordan v. Ficco

Not for Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1051
JOSEPH JORDAN,
Petitioner, Appellant,
v.
EDWARD FICCO,
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
Before
Selya, Dyk* and Howard, Circuit Judges.
John M. Thompson with whom Thompson & Thompson, P.C. was on
brief, for petitioner.
Susanne G. Reardon, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for respondent.
June 13, 2005
*
Of the Federal Circuit, sitting by designation.
Per Curiam. This is an appeal from an order denying
Joseph Jordan's petition for a writ of habeas corpus. The issue
presented is whether the district court erred in concluding that
Massachusetts courts did not deny Jordan the right of self-
representation, see Faretta v. California, 422 U.S. 806 (1975), or
certain concomitant procedural rights. The Massachusetts Appeals
Court, in a decision that the Supreme Judicial Court declined to
review, held that Jordan invoked his right to self-representation
but then later waived it. The district court decided that this
waiver ruling was neither "contrary to, [n]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)(2000). The court also rebuffed Jordan's claim that
the state court's decision was based on "an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." Id. § 2254(d)(2). We do not travel
the same decisional path as the other courts that have evaluated
Jordan's Faretta-related claims because, in our view, Jordan only
expressed a desire to represent himself under certain conditions
and those conditions never materialized. We therefore affirm the
denial of the petition on this limited basis.
In October 1991, a Massachusetts grand jury indicted
Jordan on charges of kidnaping, conspiracy to murder, assault by
means of a dangerous weapon, and battery. Jordan was incarcerated
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pending trial. The superior court originally appointed attorney
Alan Rubin, the regional supervisor of the Hampshire County office
of the Committee for Public Counsel Services, to represent him. On
May 4, 1992, Rubin moved to withdraw because of a conflict of
interest and was granted permission to do so. That same day, the
court appointed attorney Scott Hamilton to replace Rubin and
continued Jordan's trial until July 22, 1992.
In three identical motions, filed with the superior court
on June 17, 1992, July 7, 1992, and July 13, 1992 (but prepared and
mailed some time earlier from Jordan's place of incarceration),
Jordan expressed dissatisfaction with Hamilton's case preparation.
These motions, captioned as "Motion[s] to Proceed Pro Se," sought
relief in the form of (1) dismissal of the charges, (2) transfer of
venue to another jurisdiction (presumably where another bar
advocate or public defender's office would be responsible for
defending Jordan), (3) that "[a]n Attorney-At-Law from without the
Hampshire County Bar Advocate Program and from without the Public
Defender's Office be appointed to defend [Jordan] concurrently with
the withdrawl [sic] of the currently appointed Bar Advocate," or
(4) that "[t]he defendant be allowed to proceed Pro Se in this
matter and, due to the circumstances of this case, that this
Honorable Court appoint a standby counsel." On the final page of
his submission, Jordan made clear that self-representation was the
least preferred of the remedies sought: "The defendant in this
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matter therefore respectfully requests that this Honorable Court
allow one of the foregoing alternatives to his proceeding pro se
or, short of those, allow him to proceed pro se . . . ."
On July 8, 1992, Hamilton moved to withdraw as Jordan's
counsel. The superior court held a hearing on the motion that same
day, with Jordan in attendance. The court denied Hamilton's motion
because it did not want to continue the trial again, but it offered
to permit attorney Geri Laventis (whom Hamilton had introduced to
Jordan as possible replacement counsel the week before) to
participate as co-counsel. Laventis could not participate on the
scheduled trial date so she declined. At this point, the court
stated that it would consider appointing co-counsel if the defense
so moved.
On July 13, 1992, the same day that Jordan's third
"Motion to Proceed Pro Se" reached and was filed with the court,
Hamilton acting for Jordan moved to appoint attorney David
Pritchard as co-counsel. The court granted the motion that same
day. After this motion was granted, Jordan made no further mention
of representing himself and permitted Pritchard and Hamilton to
represent him at trial without objection. Moreover, in a letter to
the superior court's Regional Administrative Justice dated July 13,
1992, but filed August 11, 1992, Jordan reiterated his desire for
counsel at his trial: "Regardless of whom is appointed as my
counsel, although I certainly hope that Ms. Laventis be so
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appointed,1 I pray that this Honorable Court appoint new counsel
and remove Mr. Hamilton as my counsel as soon as possible." The
July 13 letter made no mention of self-representation or proceeding
pro se. On July 29, 1992, Jordan was convicted on all charges.
Jordan's entire argument to us is based on the factual
premise that Jordan wished to represent himself and sufficiently
communicated that wish to the trial court to trigger the
Faretta (and Faretta derived) rights of which he says he was
denied. We reject this factual premise and thus the argument
itself. We may accept arguendo, as the state appeals court
concluded, that an assertion of Faretta rights may be efficacious
even if it is only made on the condition that another requested and
preferred form of relief be deprived. See, e.g., Adams v. Carroll,
875 F.2d 1441, 1444-45 (9th Cir. 1989). But this does not mean
that a conditional assertion of Faretta rights is always
efficacious. See United States v. Frazier-El, 204 F.3d 553, 558-61
(4th Cir. 2000); id. at 566-67 (Murnaghan, J., dissenting). Where,
as here, the alleged assertion of Faretta rights is clearly
conditioned on the denial of a preferred form of requested relief
involving counseled representation, and where, as here, a variant
1
The reference to Ms. Laventis in the July 13 letter is a bit
odd, as Laventis had declined the offer to be appointed co-counsel
five days earlier at the July 8 hearing. In any event, regardless
whether the letter was written on July 13 or shortly before, it is
clear that the letter was written after the thrice-filed Motion to
Proceed Pro Se was sent to the court.
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of the preferred form of relief is granted without subsequent
objection or renewal of the request for self representation,2 it
would undermine the Sixth Amendment to treat the conditional
assertion of Faretta rights as efficacious. Such a ruling could
pave the way for inadvertent waivers of the right to counsel by
defendants who "occasional[ly] mus[e] on the benefits of self-
representation," Frazier-El, 204 F.3d at 558-59, (citation and
internal quotation marks omitted), and thereby undermine the
"constitutional primacy" of this right vis-à-vis the right to self-
representation, id. at 559; see United States v. Proctor, 166 F.3d
396, 401 (1st Cir. 1999). We are unwilling to endorse such a
result.
Affirmed.
2
Jordan suggests that his third Motion to Proceed Pro Se was
filed after the appointment of Pritchard as co-counsel and served
as de facto notice to the trial court that Jordan preferred self-
representation to combined representation by Pritchard and
Hamilton. Under all the circumstances, the trial court only could
have inferred that the third motion was prepared and mailed prior
to July 13 when the court acted on Jordan's request that he not be
represented by Hamilton, since the motion arrived at the court on
July 13.
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