Hillum Safat Qital Abdullah, Also Known as Tommie Lee West v. Michael Groose

JOHN R. GIBSON, Senior Circuit Judge.

Michael Groose, Superintendent of the State of Missouri’s Jefferson City Correctional Center, appeals from the district court’s¹ order granting Hillum Safat Qital Abdullah a writ of habeas corpus ordering Abdullah be released unless the State takes steps within ninety days of disposition of this appeal to provide Abdullah a new trial. Ab-dullah is currently serving a five year sentence for his conviction of unlawful use of a weapon. Mo.Rev.Stat. § 571.030.1(1) (1986). At his state court trial, Abdullah elected to represent himself. Because of an earlier escape attempt the trial court ordered that Abdullah be shackled at trial. He filed his habeas petition claiming that his Sixth Amendment rights were violated because the state trial court had forced him to wear leg irons while representing himself. On appeal, Superintendent Groose argues that the district court’s holding constituted a new rule which should not be applied retroactively; that Abdullah’s claim was barred by the procedural default rule; and that the state trial court’s error was harmless. We affirm the judgment of the district court.

Abdullah was indicted and tried under the name Tommie L. West in the Circuit Court for the City of St. Louis for unlawful use of a weapon. He now goes by the name of Hil-lum Safat Qital Abdullah.² He was originally represented by a public defender, but before trial he moved the court to permit him to represent himself at trial. Upon inquiry by the trial court, Abdullah stated that he was thirty-one years old, had a ninth grade education and had attended Watterson College, that he was not under the influence of drugs or alcohol, and that he did not suffer from any mental disease. The trial court informed Abdullah that he would be “held to the same rules that any other attorney is in [the] Court.” The prosecutor stated on the record that Abdullah had some familiarity with courtroom procedure, having been convicted several times of carrying concealed weapons. After this colloquy, the court allowed Abdul-lah to proceed pro se. Later in the same hearing, the prosecutor moved to have Ab-dullah tried in shackles:

Prosecutor: I think we need some ground rules for his conduct and movement during the course of the trial. As the Court’s well aware, we attended a sentencing hearing with Mr. West last year, and he did in fact try to escape from the courtroom, and that’s why he’s wearing leg irons.

And I consider him to be a very dangerous security risk. He’s already got a ten-year sentence, and I’m a little concerned about him wandering around the courtroom giving a closing argument, making a voir dire, approaching a witness to cross-examine the witness considering his propensity for escape. Are you going to keep his legs bound during the course of the trial, or are you going to let him move freely?

The Court: Well, based upon the information that this Court has received, he will have to proceed with this trial with the leg irons as they now are.

Neither Abdullah nor his erstwhile counsel objected to the shackling ruling. Immediately afterward, the court released Abdullah’s counsel from further responsibility. Abdul-lah was convicted.

In his direct appeal in the state court Abdullah asserted that he had been denied a fair trial because he was shackled during the trial. Since Abdullah had not objected to the shackles at trial, the Missouri Court of Appeals reviewed the claim under Mo.R.Crim.P. 29.12(b) for plain error resulting in manifest injustice. Finding no such error, the court affirmed. State v. West, 743 S.W.2d 592, 594 (Mo.Ct.App.1988).

Abdullah then petitioned for a writ of ha-beas corpus, pursuant to 28 U.S.C. § 2254 (1988). The district court referred the case to a United States Magistrate Judge,³ who recommended that Abdullah’s claim should not be procedurally barred. The Magistrate Judge recommended granting relief, reasoning that the trial court had not warned Ab-dullah of the “scope and dangers of self-representation in light of the decision to order him to wear leg irons while he presented his ease to the jury.... The combination of shackles and self-representation is particularly prejudicial, and without specific warnings once the decision to shackle petitioner was made, it cannot be said that petitioner made the choice of self-representation knowingly and intelligently.” The district court agreed that there was no procedural bar and permitted briefing on the merits. After additional briefing, the Magistrate Judge recommended that her proposed decision did not constitute a new rule and therefore should not be barred as retroactive under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). The district court granted the writ in accordance with the Magistrate Judge’s recommendations.

I.

On appeal Groose argues that the district court’s holding requires a second warning, and thus amounts to a new rule that cannot be applied retroactively under Teague v. Lane. Under Teague, a federal habeas court may not apply a new rule to invalidate a state conviction unless the rule falls within one of two narrow exceptions to the non-retroactivity principle. 489 U.S. at 311, 109 S.Ct. at 1075-76. “[A] case announces a new rule if the result was not dictated, by precedent existing at the time the defendant’s conviction became final.” Id. at 301, 109 S.Ct. at 1070; Caspari v. Bohlen, — U.S. -, -, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994). Abdullah’s conviction became final in 1988.

The finding of a Sixth Amendment violation in this case rests on the authority of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and the line of cases on which it is based. See Johnson v. Zerbst, 304 U.S. 458, 464-65, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); Von Moltke v. Gillies, 332 U.S. 708, 722, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948) (plurality opinion of Black, J.). These, of course, antedate Abdul-lah’s conviction. Faretta held that a defendant who wishes to represent himself has a right to do so, but that 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 his eyes open.’ ” 422 U.S. at 835, 95 S.Ct. at 2541 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279, 63 S.Ct. 236, 241, 87 L.Ed. 268 (1942)). Fifty years before Abdullah’s case, the Supreme Court placed on the trial court the duty of ascertaining whether a defendant has made an intelligent and competent waiver of counsel. Johnson, 304 U.S. at 464-65, 58 S.Ct. at 1023. At the time of Abdullah’s conviction, Faretta had been interpreted to require the court to “ensure that the waiver is not the result of coercion or mistreatment of the defendant, and ... that the accused understands the nature of the charges, the consequences of the proceedings, and the practical meaning of the right he is waiving.” McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir.), cert. denied, 474 U.S. 852, 106 S.Ct. 152, 88 L.Ed.2d 125 (1985) (internal citations omitted).

It was also well established at the time of Abdullah’s conviction that forcing a defendant to undergo trial in chains is “inherently prejudicial,” Holbrook v. Flynn, 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46, 89 L.Ed.2d 525 (1986); see Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353 (1970), and should only be tolerated in cases of dire necessity. Id. “[S]hackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large,” Holbrook, 475 U.S. at 569, 106 S.Ct. at 1346, and therefore pose a threat to the presumption of innocence and the integrity of the fact-finding process. See id. at 567-68, 106 S.Ct. at 1345. These problems are aggravated when a defendant is representing himself because the defendant has the Hobson’s choice of trying to move about as necessary in the course of his self-representation, thus drawing the jury’s attention to the shackles, or conducting his defense while seated behind the counsel table.

Considering first the court’s duty to ascertain whether the defendant appreciates the significance of waiving counsel, and second, the long-recognized gravity of forcing a defendant to trial in chains, we conclude that the trial court did not live up to its obligation in this ease. Abdullah did not know he would be tried in chains at the time he moved to waive counsel. Once the court decided to shackle him, the court made no effort to ascertain whether Abdullah understood the effect shackling would have on his ability to represent himself.

Superintendent Groose argues that there are no pre-1988 cases saying that the court must discuss shackling in its waiver colloquy. However, it has long been established that “[t]he determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that ease.” Johnson, 304 U.S. at 464, 58 S.Ct. at 1023. Every case will have its specific facts, but it is the courts’ task to apply the established general rule of Faretta to the infinite array of facts that present themselves. The essence of the district court’s holding was to require that the general rule of Faretta be applied to the particular facts in this case, including the difficulties that shackling would pose to self-representation. The state trial court did nqt fulfill its duty to assure that Abdullah was “aware of the dangers and disadvantages of self-representation,” Faretta, 422 U.S. at 835, 95 S.Ct. at 2541, when it failed to discuss the crucial fact that Abdullah would appear before the jury in chains, and the particular restrictions and effect on the trial that that fact would have. The shackling was a specific circumstance creating difficulties of self-representation, so as to make particularly appropriate Faretta warnings. We deal only with the case before us, and as we do so, We conclude that Faretta requires that the defendant seeking to represent himself should be informed by the trial judge of the particular complexities and difficulties that the shackling causes. Therefore, Abdullah’s Sixth Amendment rights under Faretta were violated, and the non-retroactivity ■ principle of Teague v. Lane is irrelevant to this case.

Superintendent Groose argues that the district court’s holding will require trial courts to give supplementary Faretta warnings every time there is an adverse development that will make self-representation more perilous. That is a false issue in this ease because both the motion for self-representation and shackling occurred before trial and in the same hearing.

Superintendent Groose also argues that we affirmed a conviction in United States v. Stewart, 20 F.3d 911 (8th Cir.1994), where a pro se defendant was tried in shackles without a warning about the effect of shackles on his self-representation. The court in Stewart was unable to conduct a complete Faretta colloquy because the obstreperous defendant interrupted every such attempt. 20 F.3d at 913, 917. The trial court could hardly be held responsible for an incomplete warning in such a case. Moreover, in Stewart, the defendant had represented himself in shackles in another case. See Stewart v. Corbin, 850 F.2d 492, 495 (9th Cir.1988). He therefore had first hand knowledge of what he was getting into.

II.

Groose next argues that the district court erred in holding that Abdullah’s claims were not barred by the procedural default rule. The Missouri Court of Appeals reviewed Abdullah’s claim pursuant to Mo. R.Crim.P. 29.12(b). Under that rule the Missouri court’s review was only for “plain error” affecting “substantial rights” and resulting in “manifest injustice,” a much less rigorous standard than would have pertained if Abdullah had preserved his objection. However, in the past we have held that Missouri plain error review constitutes review on the merits and therefore no procedural defect bars habeas review. Williams v. Armontrout, 877 F.2d 1376, 1379 (8th Cir.1989), cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990); accord Bannister v. Armontrout, 4 F.3d 1434, 1446 (8th Cir.1993), cert. denied, — U.S. -, 115 S.Ct. 418, 130 L.Ed.2d 333 (1994).

Groose contends that Pollard v. Delo, 28 F.3d 887, 889 (8th Cir.), cert. denied, — U.S. -, 115 S.Ct. 518, 130 L.Ed.2d 423 (1994), directly contradicts Williams and Bannister. We think not. Pollard does not involve plain error review pursuant to Mo. R.Crim.P. 29.12(b), as do Williams and Bannister,⁴ In Pollard the Missouri Court stated that claim was barred from review under Missouri law, and explicitly couched its review on the merits as an alternative holding and “as a matter of grace.” Pollard v. State, 807 S.W.2d 498, 502 (Mo.1991). This distinction between plain error review and review as an alternative ground may be a fine one, but our case is clearly on the Williams-Bannister side of the line and we are bound by their precedent.⁵

III.

Finally, Groose argues that we should apply harmless error analysis to the violation of Abdullah’s right to trial counsel, citing Brecht v. Abrahamson, — U.S. -, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). However, we are persuaded by United States v. Allen, 895 F.2d 1577, 1579-80 (10th Cir.1990). Allen holds a district court’s failure to establish that a defendant’s waiver of trial counsel was voluntary, knowing and intelligent is not subject to harmless error analysis. The Tenth Circuit based its decision on Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), in which the Supreme Court refused to apply harmless error analysis to a case in which a defendant was left “entirely without the assistance of counsel ” on direct appeal. 895 F.2d at 1580 (quoting Penson, 488 U.S. at 88, 109 S.Ct. at 354). Obviously, being left without counsel at trial is as serious as lacking counsel on appeal. Id. Denial of trial counsel infects the integrity of the entire trial. See Satterwhite v. Texas, 486 U.S. 249, 256-57, 108 S.Ct. 1792, 1797-98, 100 L.Ed.2d 284 (1988). The weight of authority supports the Allen rule. See United States v. Fant, 890 F.2d 408, 410 (11th Cir.1989), cert. denied, 494 U.S. 1038, 110 S.Ct. 1498, 108 L.Ed.2d 633 (1990); United States v. Balough, 820 F.2d 1485, 1489-90 (9th Cir.1987); United States v. Welty, 674 F.2d 185, 194 n. 6 (3d Cir.1982); but see Richardson v. Lucas, 741 F.2d 753, 757 (5th Cir.1984). See generally James Liebman and Randy Hertz, Federal Habeas Corpus Practice and Procedure § 27A.3 & n. 18 (1993 Cum.Supp.).

To the extent Abdullah’s case involves denial of his right to self-representation, it is governed by the Supreme Court’s reasoning that harmless error cannot apply where a court denies the defendant his right to self-representation. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error’ analysis.”) See Johnstone v. Kelly, 808 F.2d 214, 218-19 (2d Cir.1986), cert. denied, 482 U.S. 928, 107 S.Ct. 3212, 96 L.Ed.2d 699 (1987).

Therefore, we decline to apply harmless error analysis in this case.

IV.

We affirm the grant of the conditional writ of habeas corpus.

1 . The Honorable Donald J. Stohr, United States District Judge for the Eastern District of Missouri.

2 . At various points in the proceedings he also called himself Abdullah Sharrieff Muhammed.

3 . The Honorable Catherine D. Perry, then United States Magistrate Judge for the Eastern District of Missouri and now United States District Judge for the same district.

4 . Bannister leaves open the possibility that there could be cases in which plain error review was not a waiver of the procedural default, 4 F.3d at 1445 n. 16.

5 . Groose also cites dictum from Stidum v. Trickey, 881 F.2d 582, 584 (8th Cir.1989), cert. denied, 493 U.S. 1087, 110 S.Ct. 1151, 107 L.Ed.2d 1055 (1990). Stidum declined to consider the procedural bar question and is therefore not authoritative on this issue.