State v. Ely

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08/14/2020 01:09 AM CDT
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
State of Nebraska, appellee, v.
Nicholas J. Ely, appellant.
___ N.W.2d ___
Filed July 10, 2020. No. S-19-850.
1. Effectiveness of Counsel. A claim that defense counsel provided inef-
fective assistance presents a mixed question of law and fact.
2. Effectiveness of Counsel: Appeal and Error. When reviewing a
claim of ineffective assistance of counsel, an appellate court reviews
the factual findings of the lower court for clear error. With regard to
questions of counsel’s performance or prejudice to the defendant as
part of the two-pronged test articulated in Strickland v. Washington, 466
U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court
reviews such legal determinations independently of the lower court’s
conclusion.
3. Postconviction: Evidence: Appeal and Error. In an evidentiary hear-
ing on a motion for postconviction relief, the trial judge, as the trier
of fact, resolves conflicts in the evidence and questions of fact. An
appellate court upholds the trial court’s factual findings unless they are
clearly erroneous.
4. Postconviction: Effectiveness of Counsel: Proof: Appeal and Error.
In order to establish a right to postconviction relief based on a claim
of ineffective assistance of counsel, the defendant has the burden, in
accord­ance with Strickland v. Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), to show that counsel’s performance was
deficient; that is, counsel’s performance did not equal that of a lawyer
with ordinary training and skill in criminal law. Next, the defendant
must show that counsel’s deficient performance prejudiced the defense
in his or her case.
5. Effectiveness of Counsel: Proof. To show prejudice, the defendant must
demonstrate a reasonable probability that but for counsel’s deficient per-
formance, the result of the proceeding would have been different.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
6. Trial: Constitutional Law: Testimony. A defendant has a fundamental
constitutional right to testify.
7. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
8. Constitutional Law: Right to Counsel: Waiver. A criminal defendant
has a constitutional right to waive the assistance of counsel and conduct
his or her own defense under the Sixth Amendment and Neb. Const.
art. I, § 11.
Appeal from the District Court for Douglas County: J.
Michael Coffey, Judge. Affirmed.
Brian S. Munnelly for appellant.
Douglas J. Peterson, Attorney General, and Stacy M. Foust
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
Papik, J.
Nicholas J. Ely appeals from an order denying him post-
conviction relief. The district court determined, after hold-
ing an evidentiary hearing, that there was no merit to Ely’s
claims that his counsel was ineffective at the trial court level
in failing to advise him of his right to testify and ineffec-
tive on direct appeal in failing to argue that his right to self-
representation was violated at trial. We find no reversible error
and thus affirm.
BACKGROUND
Trial and Direct Appeal.
Ely was tried for his role in an attempted robbery in which
the target was killed. The details that led to the charges and
trial can be found in our opinion on Ely’s direct appeal. See
State v. Ely, 287 Neb. 147, 841 N.W.2d 216 (2014).
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
Ely’s trial was scheduled to commence on October 1, 2012.
On August 21, Ely filed a motion styled as “Motion to Dismiss
Current Counsel and Appoint Myself Pro Se.” In it, he asserted
that the “issues involved in this case are complex and beyond
the scope of [his] legal knowledge.” He then listed various
complaints regarding his attorneys and the amount of time he
had been able to review discovery produced in his case. He
asked the court to “appoint” him as his own counsel, but also
asked that he “have counsel appointed to me for help/advisory
for when I have questions [about] my own counsel.” On the
same day, Ely filed a motion to continue the trial. In the motion
to continue, he referred to his motion to dismiss his counsel
and represent himself, and he claimed that he needed more
time to prepare for trial.
On August 28, 2012, the district court held a hearing on
Ely’s motions. When asked about his motion to dismiss his
counsel and represent himself, Ely said that he did not feel he
had had enough time to prepare for trial and that he believed
if he represented himself, he would be able to work on the
case more. Ely indicated that he wished to spend more time
reviewing discovery in his case, but that he did not believe
there was enough time remaining prior to trial for him to do
so. “So,” as he put it, “I feel like I need to go pro se and to get
a continuance.”
After Ely’s counsel responded, the district court said, “I
don’t see any benefit to you proceeding pro se . . . . [T]hese
are serious charges. And I still think you need the advice of
counsel. So I’m going to deny your motion.”
The district court then heard argument on Ely’s motion to
continue. In support of this motion, Ely again referred to his
motion to dismiss his counsel. He said, “I feel I’m not ready
to go to trial in 30 days. That’s why I’m in here putting in a
motion to dismiss my counsel.” The district court denied the
motion to continue.
The week before trial was to commence, Ely filed another
motion, styled as “Motion to Dismiss Counsel.” In this motion,
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
he asked the district court to dismiss his current counsel and
reappoint new counsel. He listed numerous reasons why he
was not satisfied with his current counsel, but made no men-
tion of desiring to represent himself. On the same day, Ely filed
another motion to continue, in which he referred to his recently
filed motion to dismiss counsel and stated that his “new lawyer
needs time to go over [d]iscovery and put in motions.” The
district court denied both motions.
Trial commenced as scheduled, with Ely represented by
counsel. Ely did not testify in his own defense.
Ely was convicted of first degree murder on a felony mur-
der theory and use of a deadly weapon to commit a felony. He
was sentenced to life in prison on the murder conviction and
to a consecutive sentence of 5 to 5 years’ imprisonment on the
use of a deadly weapon conviction. We affirmed his convic-
tions on direct appeal. State v. Ely, 287 Neb. 147, 841 N.W.2d
216 (2014).
Initial Postconviction Appeal.
After his convictions were affirmed, Ely filed multiple
motions for postconviction relief in which he alleged numer-
ous claims of ineffective assistance of trial and appellate
counsel, as well as several claims of district court error. The
district court initially denied Ely’s motions without holding an
evidentiary hearing. Ely appealed, raising 29 different assign-
ments of error.
While we found that the district court correctly denied Ely
relief without an evidentiary hearing on most of the claims
asserted, we found that he was entitled to an evidentiary hear-
ing on two of his claims: (1) that his trial counsel was ineffec-
tive in failing to advise him of his right to testify and (2) that
his appellate counsel was ineffective in failing to argue that his
right to self-representation was violated at trial. Accordingly,
we reversed, and remanded, in part, with directions to the
district court to hold an evidentiary hearing on those claims.
We also directed the district court to grant Ely’s motion for
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STATE v. ELY
Cite as 306 Neb. 461
appointment of counsel. See State v. Ely, 295 Neb. 607, 889
N.W.2d 377 (2017).
Postconviction Proceedings
on Remand.
The district court held an evidentiary hearing following
remand. At the evidentiary hearing, the district court received
depositions of both Ely and an attorney who served as Ely’s
counsel at trial and on appeal. After the evidentiary hearing,
Ely successfully moved to reopen the record to introduce a
motion he filed asking to dismiss his appellate counsel and
appoint new counsel. Additional details regarding the evidence
introduced at the evidentiary hearing are discussed in the
analysis section below.
Following the evidentiary hearing, the district court found
Ely was not entitled to relief on either of his two remain-
ing claims. With respect to Ely’s claim that his counsel was
ineffective in failing to advise him of his right to testify, the
district court found that Ely understood he had a right to tes-
tify, that his counsel advised him not to do so, and that this
advice was reasonable. The district court also found that Ely’s
counsel did not render ineffective assistance by not arguing
on appeal that Ely’s right to self-representation was violated
at trial. The district court reasoned that if that issue had been
raised on direct appeal, it would not have been successful,
and that therefore, counsel was not ineffective in failing to
raise it.
Ely appeals.
ASSIGNMENTS OF ERROR
Ely assigns two errors on appeal. He claims that the district
court erred (1) in denying relief on his claim that trial counsel
was ineffective in failing to advise him of his right to testify
and (2) in denying relief on his claim that his appellate counsel
was ineffective in failing to assert on appeal that his right to
self-representation was violated at trial.
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Nebraska Supreme Court Advance Sheets
306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
STANDARD OF REVIEW
[1,2] A claim that defense counsel provided ineffective
assistance presents a mixed question of law and fact. State v.
Huston, 302 Neb. 202, 922 N.W.2d 723 (2019). When review-
ing a claim of ineffective assistance of counsel, an appellate
court reviews the factual findings of the lower court for clear
error. Id. With regard to questions of counsel’s performance
or prejudice to the defendant as part of the two-pronged test
articulated in Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), an appellate court reviews
such legal determinations independently of the lower court’s
conclusion. Huston, supra.
[3] In an evidentiary hearing on a motion for postconvic-
tion relief, the trial judge, as the trier of fact, resolves conflicts
in the evidence and questions of fact. Id. An appellate court
upholds the trial court’s factual findings unless they are clearly
erroneous. Id.
ANALYSIS
Ineffective Assistance of
Counsel Standards.
Both of Ely’s assignments of error pertain to alleged inef-
fective assistance of counsel. We briefly review the legal
standards governing such claims before turning to Ely’s spe-
cific arguments.
[4,5] In order to establish a right to postconviction relief
based on a claim of ineffective assistance of counsel, the
defendant has the burden, in accordance with Strickland,
supra, to show that counsel’s performance was deficient; that
is, counsel’s performance did not equal that of a lawyer with
ordinary training and skill in criminal law. State v. Privett,
303 Neb. 404, 929 N.W.2d 505 (2019). Next, the defendant
must show that counsel’s deficient performance prejudiced the
defense in his or her case. Id. To show prejudice, the defend­
ant must demonstrate a reasonable probability that but for
counsel’s deficient performance, the result of the proceeding
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STATE v. ELY
Cite as 306 Neb. 461
would have been different. State v. Assad, 304 Neb. 979, 938
N.W.2d 297 (2020).
Right to Testify.
[6,7] We now turn to Ely’s argument that the district court
erred by rejecting Ely’s claim that his trial counsel ineffectively
failed to advise him of his right to testify. Here, Ely correctly
points out that a defendant has a fundamental constitutional
right to testify. See State v. Iromuanya, 282 Neb. 798, 806
N.W.2d 404 (2011). Further, he correctly observes that we have
previously stated defense counsel bears the primary responsi-
bility for advising a defendant of his or her right to testify or
not to testify, of the strategic implications of each choice, and
that the choice is ultimately for the defendant to make. Id. In
this case, however, we do not believe the district court erred by
concluding that Ely’s trial counsel met this responsibility and
thus did not perform deficiently.
Although Ely testified in his deposition that he was not
advised and did not know he had a right to testify, his counsel
testified that this was “absolutely incorrect” and was a “bogus
statement.” She testified that when she met with Ely after he
decided he wanted to go to trial, “one of the first things [he]
said to me was, I can’t take the stand because I have seven or
eight felonies.” She testified that she then would have had a
conversation with Ely on the risks of testifying as a convicted
felon. She additionally testified that Ely was the only person
who made the decision not to testify and that no one talked
him out of it.
The district court resolved the conflicts between Ely’s tes-
timony and that of his counsel and determined that Ely was
aware of his right to testify, that his counsel provided advice
regarding his testifying, and that Ely made the decision not
to do so. The task of resolving such conflicting testimony is
within the province of the district court. See State v. Alarcon-
Chavez, 295 Neb. 1014, 893 N.W.2d 706 (2017). We can dis-
turb its factual findings only if they are clearly erroneous. See
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STATE v. ELY
Cite as 306 Neb. 461

id. We find no clear error here and thus see no basis to disturb
the district court’s conclusion that Ely’s counsel did not inef-
fectively fail to advise him of his right to testify.
Self-Representation.
This leaves Ely’s argument that he received ineffective
assistance of counsel because his counsel failed to argue on
direct appeal that his rights to self-representation were violated
at trial. Ely claims that if his counsel had raised this issue on
appeal, reversal would have been required. He contends that
under the U.S. and Nebraska Constitutions, he had a right to
represent himself and the district court could not preclude him
from doing so based on the fact he faced serious charges or
based on its belief that it was in his best interests to be repre-
sented by counsel. He also emphasizes that the denial of the
right to self-representation has been held to be structural error,
not subject to harmless error review. And, according to Ely, if
raising this issue would have resulted in his obtaining a new
trial, his counsel was deficient for not raising it.
[8] Much of what Ely contends regarding the right to self-
representation is true. He is correct that a criminal defendant
has a constitutional right to waive the assistance of counsel and
conduct his or her own defense under the Sixth Amendment
and Neb. Const. art. I, § 11. State v. Ely, 295 Neb. 607, 889
N.W.2d 377 (2017). He also rightly points out that while the
waiver must be made knowingly, voluntarily, and intelligently,
it need not be prudent. See id. And we have recognized that
the denial of the right to self-representation is not subject to
harmless error review. See id. Ely says nothing, however, about
another crucial aspect of the right to self-representation—the
requirement that any assertion of the right be made clearly
and unequivocally.
In Faretta v. California, 422 U.S. 806, 835, 95 S. Ct.
2525, 45 L. Ed. 2d 562 (1975), the case in which the U.S.
Supreme Court recognized a defendant’s constitutional right
to self-representation at trial, it noted that the trial court had
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306 Nebraska Reports
STATE v. ELY
Cite as 306 Neb. 461
forced the defendant in that case to accept representation
from his appointed attorney after the defendant “clearly and
unequivocally” communicated his desire to represent himself.
Courts have thereafter uniformly held that the right to self-
representation is triggered only when the defendant clearly and
unequivocally requests self-representation. See, e.g., Williams
v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994), quoting Faretta,
supra (“[t]he right to self-representation does not attach until
it is asserted ‘clearly and unequivocally’”). See, also, 3 Wayne
R. LaFave et al., Criminal Procedure § 11.5(d) (4th ed. 2015)
(collecting cases).
The requirement that a request for self-representation be
clear and unequivocal has been recognized to serve multiple
purposes. In one sense, it protects criminal defendants and their
right to counsel. As one court put it, the requirement
acts as a backstop for the defendant’s right to counsel,
by ensuring that the defendant does not inadvertently
waive that right through occasional musings on the ben-
efits of self-representation. . . . Because a defendant
normally gives up more than he gains when he elects
self-representation, we must be reasonably certain that he
in fact wishes to represent himself.
Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989) (cita-
tion omitted).
Not only does the clear and unequivocal requirement benefit
criminal defendants, it also protects the criminal justice system
as a whole. The need for this protection arises out of the fact
that the right to counsel and the right to self-representation
are “mutually exclusive entitlements.” Cain v. Peters, 972
F.2d 748, 750 (7th Cir. 1992). See, also, U.S. v. Simpson,
845 F.3d 1039, 1046 (10th Cir. 2017) (stating that right to
self-representation “lies in tension with the Sixth Amendment
right to counsel”). Left unchecked, the conflicting nature
of these rights could be abused. Defendants might waver
between requests for counsel and self-representation or make
requests that are unclear as to their desire for representation
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STATE v. ELY
Cite as 306 Neb. 461
and thereby manufacture an argument for appellate reversal
no matter how the trial court rules. See, e.g., Simpson, 845
F.3d at 1047 (“[w]ithout a clear and unequivocal request, the
[trial] court would face a dilemma, for an equivocal demand
creates a potential ground for reversal however the trial court
rules”); Cross v. U.S., 893 F.2d 1287, 1290 (11th Cir. 1990)
(“[i]n recognition of . . . the knowledge that shrewd litigants
can exploit this difficult constitutional area by making ambigu-
ous self-representation claims to inject error into the record,
this Court has required an individual to clearly and unequivo-
cally assert the desire to represent himself”). The clear and
unequivocal requirement “resolves this dilemma by forcing
the defendant to make an explicit choice.” Adams, 875 F.2d
at 1444. If no such choice is made, the defendant is presumed
to have invoked the right to counsel and not the right to self-
representation. Id.
We discuss the clear and unequivocal requirement at length
here because we do not believe Ely clearly and unequivocally
asserted that he wished to represent himself. To be sure, Ely’s
motion filed August 21, 2012, included a statement that he
wished to represent himself, a statement he repeated at the
hearing on that motion. Viewed in context, however, we do
not believe these statements constitute an unequivocal asser-
tion that Ely wished to waive his right to counsel and represent
himself at trial. We believe this is the case for multiple reasons
we will explain below.
First, we believe Ely’s request to represent himself could
reasonably be understood as expressing a desire to represent
himself only if the court also continued his trial. Several facts
lead us to this conclusion. Ely filed the motion in which he
asked to represent himself on the same day he filed a motion
to continue the trial date. The motion to continue referred to
the motion asking for self-representation as a reason for a con-
tinuance. Further, at the hearing on the motions, the primary
reason Ely identified for wanting to represent himself was
his desire to have more time to work on his case. Because of
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STATE v. ELY
Cite as 306 Neb. 461
his belief that he did not have enough time before trial, Ely
said he felt he “need[ed] to go pro se and to get a continu-
ance.” Later in the hearing, Ely reiterated that he was seeking
to dismiss his counsel because he felt he was not ready to go
to trial as scheduled. Finally, Ely did not request to represent
himself again after the district court denied the motion for a
continuance of the October 1, 2012, trial date. Given the fore-
going, we believe it is, at the very least, reasonable to under-
stand Ely’s request as a request to represent himself only if
the trial date was also continued and thus not an unequivocal
assertion of his right to self-representation.
We find support for our determination that Ely did not
clearly and unequivocally assert the right to self-representation
in several federal court decisions. Because its facts are so
similar to this case, we believe U.S. v. Simpson, 845 F.3d
1039 (10th Cir. 2017), bears mention first. In that case, the
defendant made two motions on the same day, one to represent
himself and the other for a continuance of the trial. As the 10th
Circuit described the motions, “[r]ead together, [they] stated
that [the defendant] wanted to obtain more time for trial and
to represent himself at the eventual trial.” Id. at 1047. The trial
court denied both motions, and the defendant appealed. The
10th Circuit explained that the defendant’s motions could be
understood as requesting self-representation even if the motion
for continuance was denied, but that they could also be under-
stood as a request for self-representation only if the defendant
obtained additional time. Because the defendant never made
clear that he wished to represent himself even if the continu-
ance was denied (and it was), the court held that the defendant
had not clearly and unequivocally asserted a right to self-
representation. Like the defendant in Simpson, Ely asked to
represent himself, but made the request in conjunction with an
unsuccessful request for continuance of trial and did not make
clear that he wished to represent himself if he did not obtain
a continuance.
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STATE v. ELY
Cite as 306 Neb. 461
Other recent federal decisions have found a defendant did
not clearly and unequivocally request self-representation for
reasons similar to those identified in Simpson. In U.S. v. Vanga,
717 Fed. Appx. 726 (9th Cir. 2018), the U.S. Court of Appeals
for the Ninth Circuit held that conditions a defendant placed
on his self-representation request, including obtaining a con-
tinuance, rendered his request equivocal. In U.S. v. Edwards,
535 Fed. Appx. 285 (4th Cir. 2013), the U.S. Court of Appeals
for the Fourth Circuit held that a defendant did not clearly
and unequivocally assert the right to self-representation. In
Edwards, the defendant informed the court that he was “‘reluc-
tantly’” asking the court to represent himself and that he “‘just
fe[lt] like [he had] to represent [him]self,’” 535 Fed. Appx. at
287 (emphasis omitted), expressions that are similar to Ely’s
statement that in light of his belief that he needed more time
to prepare for trial, “I feel like I need to go pro se and to get
a continuance.”
Alternatively, we believe Ely did not clearly and unequivo-
cally assert that he wished to represent himself for another
reason: It is not clear that Ely wished to represent himself even
if the district court did not appoint counsel to assist him in
some fashion.
The Sixth Amendment has been interpreted to confer a right
to counsel and a right to self-representation, but there is no
constitutional right to “hybrid” representation, in which the
defendant both acts as his or her own counsel and is repre-
sented by an attorney. See McKaskle v. Wiggins, 465 U.S. 168,
104 S. Ct. 944, 79 L. Ed. 2d 122 (1984); U.S. v. Callwood,
66 F.3d 1110 (10th Cir. 1995). While a court has discretion to
appoint standby counsel to assist a defendant, there is no con-
stitutional right to such an arrangement. See U.S. v. Webster, 84
F.3d 1056 (8th Cir. 1996).
Because there is no constitutional right to hybrid represen-
tation, some courts have held that defendants do not clearly
and unequivocally assert the right to self-representation when
requests to serve as their own counsel are accompanied by
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STATE v. ELY
Cite as 306 Neb. 461
a request to have appointed counsel serve in an advisory or
standby capacity. In U.S. v. Kienenberger, 13 F.3d 1354 (9th
Cir. 1994), the U.S. Court of Appeals for the Ninth Circuit
held that a defendant did not clearly and unequivocally assert a
right to self-representation, because when he asked to serve as
his own counsel, he also asked that advisory or standby coun-
sel be appointed to assist on procedural matters. New York’s
highest appellate court recently reached the same conclusion. It
reasoned that because the defendant had consistently requested
standby counsel—to which he had no constitutional right—
he had not unequivocally asked to proceed without counsel.
People v. Silburn, 31 N.Y.3d 144, 98 N.E.3d 696, 74 N.Y.S.3d
781 (2018).
In contrast to Kienenberger and Silburn, some courts have
held that it is possible for a defendant to request standby
counsel and nevertheless unequivocally assert the right to self-
representation. See, e.g., U.S. v. Baker, 84 F.3d 1263 (10th
Cir. 1996); People v. Hicks, 259 Mich. App. 518, 675 N.W.2d
599 (2003). But even assuming that is a possibility, we do not
believe Ely did so here.
As we have noted, Ely’s motion requesting that he be
allowed to represent himself also requested that counsel
be appointed to assist him when he had questions. On its face
then, Ely’s motion sought some type of hybrid arrangement
in which he served as his own counsel but appointed counsel
remained to assist him. Ely did not make clear either in his
motion or at the hearing that even if his request for such a
hybrid arrangement was denied, he still wanted to waive his
right to counsel and represent himself.
Furthermore, in Ely’s motion, he admitted that the issues
in his case were complex and beyond the scope of his
legal knowledge. We recognize that the absence of techni-
cal legal knowledge is not, in itself, a valid reason to deny
a properly asserted request for self-representation. See, e.g.,
Jones v. Norman, 633 F.3d 661 (8th Cir. 2011) (holding that
it was improper to deny defendant’s request to represent
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himself on grounds that defendant was not familiar with rules
of criminal procedure). Here, however, we believe Ely’s rec-
ognition that he lacked the legal knowledge to effectively rep-
resent himself casts considerable doubt on any notion that he
actually wanted to represent himself in the absence of counsel
to advise him. Where there is doubt as to whether a defendant
actually desired to waive his right to counsel and invoke his
or her right to self-representation, the request cannot be fairly
described as clear and unequivocal.
Because Ely did not clearly and unequivocally assert his
right to self-representation, we agree with the district court that
any argument on appeal that his right to self-representation
was violated stood no chance of success. Because Ely can-
not demonstrate the requisite prejudice, his claim that his
counsel should have argued on appeal that his right to self-
representation was violated at trial was properly rejected.
CONCLUSION
Because we find that the district court did not err in denying
Ely postconviction relief, we affirm.
Affirmed.
Freudenberg, J., not participating.