Opinion
C.A. No. 02-518 S
July 1, 2003
Report and Recommendation
John Feole, pro se, an inmate incarcerated at the Adult Correctional Institutions, Cranston, Rhode Island, has filed with the Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction of solicitation of murder. The Attorney General of the State of Rhode Island, designated a party respondent, filed an objection to the petition. This matter has been referred to me pursuant to 28 U.S.C. § 636 (b)(1)(B) for a report and recommendation. For the reasons set forth below, I recommend that the instant petition for a writ of habeas corpus be denied and dismissed. I have determined that a hearing is not necessary.
Background
In 1995, John Feole ("Feole" or "petitioner") was convicted of extortion and usury. State v. Feole, 748 A.2d 239 (R.I. 2000). During the trial proceedings in that case, Feole contacted an acquaintance, telling the acquaintance that "he had a problem" and wanted some people "blown away." Feole explained that he wanted the complaining witnesses in his trial for usury and extortion "taken care of."
During a series of meetings with the acquaintance, Feole renewed his desire to have the acquaintance carry out the "shootings" and offered to pay the acquaintance $10,000 for these misdeeds. Feole supplied the acquaintance with bullets and a gun, and identified where the potential victims resided. Unbeknownst to Feole, the acquaintance contacted the authorities who had listened to, or recorded, some of the conversations and collected evidence from the nefarious meetings.
In due course, Feole was charged with solicitation to commit murder. A trial commenced before a Superior Court jury. After both parties had rested, and immediately prior to closing arguments, defense counsel indicated to the trial judge that the petitioner was insisting that he be permitted to testify. The defense attorney explained to the Court that he previously discussed with Feole the prospect of him testifying. Feole's attorney explained that he advised against it, and that Feole acquiesced in his lawyer's advice. The defense rested on the previous day with the concurrence of the petitioner.
The trial judge thereafter entertained a motion to re-open the defense's case in chief. Feole's attorney again indicated that any testimony Feole would offer would be against his advice. Feole's attorney also indicated that he was unprepared to conduct a direct examination of Feole since he had been preparing for final arguments.
The trial judge then discussed the proposed testimony with Feole and his attorney. Feole indicated that he wished to testify concerning the events which lead up to his prior conviction of usury and extortion. The trial justice thereafter granted the motion to re-open with certain conditions, including that Feole testify in the narrative form without the assistance of his attorney, and restricted his testimony to the events leading up to the solicitation of murder charges only. The defendant then requested a new lawyer, which the trial judge denied.
After the jury returned to the courtroom, the trial judge inquired of Feole as to whether he was going to take the stand. Feole declined, responding "I don't have a lawyer." At that point, the trial judge said "[t]he answer is no. All right, the case is rested, both sides." That same day, the jury convicted the petitioner of solicitation to commit murder. Feole appealed to the Rhode Island Supreme Court, contending his right to testify was infringed, and that, by forcing him to forgo a direct examination and testify in the narrative form, the trial justice interfered with his Sixth Amendment right to counsel. The Rhode Island Supreme Court disagreed and affirmed. State v. Feole, 797 A.2d 1059 (RI. 2002).
Petitioner thereafter filed a timely application for federal habeas relief. In his application, petitioner asserts that he is "appealing [his] case from the R.I. Supreme Court." He does not identify with specificity which particular issue he seeks this court to review. Accordingly, this court will address those issues addressed by the state supreme court. Any other issue would be unexhausted. See 28 1. S.C. § 2254(h)( I )(A) (An application For a writ of habeas corpus shall not be granted unless the applicant has exhausted his state court remedies); See also R.I. Gen. Laws 10-9.1-1 et seq. (state post-conviction relief statute).
The Attorney General has objected to the petition. Feole filed a Response thereto.
Discussion
A. Habeas Corpus Standard
The Anti-terrorism and Effective Death Penalty Act ("AEDPA") significantly limits the scope of federal habeas review. AEDPA precludes the granting of habeas relief to a state prisoner, unless the state court decision was "contrary to, 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)(l). A decision is "contrary to" federal law if the state court applies a legal principle different from the governing principal set forth in Supreme Court cases, or if the state court decides the case differently from a Supreme Court case on materially indistinguishable facts. Bell v. Cone, 535 U.S. 685 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)).
To hold that a state court's decision is an "unreasonable application" of clearly established federal law, the federal habeas court must find that "the state court correctly identifie[d] the governing legal principle from [Supreme Court] decisions but unreasonably applie[d] it to the facts of the particular case." Bell, 535 U.S. at 694. In making this determination, a federal habeas court "should ask whether the state court's application of clearly established federal law was objectively unreasonable." Williams, 529 111.5. at 409. The Court should be mindful that in order to grant habeas relief, the state court decision must be objectively unreasonable as opposed to merely incorrect. Williams, 529 U.S. at 411 ("A federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established Federal law erroneously or incorrectly. Rather, that application must also be unreasonable."). Finally, the court's focus "is not how well reasoned the state court decision is, but whether the outcome is reasonable." Hurtado v. Tucker, 245 F.3d 7, 20 (1st Cir. 2001), cert. denied, 534 U.S. 925 (2001).
In federal habeas proceedings, the federal court shall presume that the state court's determination of factual issues is correct. See 28 U.S.C. § 2254 (e)(l).
B. Petitioner's Right to Testify
As his first ground for habeas relief, petitioner contends that the trial court infringed his right to testify. The Rhode Island Supreme Court, in analyzing this claim, correctly identified controlling U.S. Supreme Court precedent, namely, Rock v. Arkansas, 483 U.S. 44 (1987). Thus, this instant habeas claim can not proceed under the "contrary to" prong of the habeas corpus standard. Rather, this Court must determine whether the Rhode Island Supreme Court's decision was an "unreasonable application" of Supreme Court precedent.
The Rhode Island Supreme Court determined that the petitioner waived his right to testify. The state court found, as fact, that prior to the defense resting, defense counsel discussed with the petitioner the possibility of the petitioner testifying. Defense counsel, however, advised against it and the petitioner acquiesced. The defense thereafter rested, with petitioner's concurrence. Thus, the state court found that the petitioner voluntary relinquished his right to testify, prior to the defense resting.
Following the close of evidence, and immediately prior to closing arguments, the petitioner indicated to his counsel that he had a change of heart: petitioner now wanted to testify. Upon motion by the defense counsel, the trial judge granted re-opened the defense's case in chief. Petitioner indicated to the trial judge that he wanted to testify about his prior conviction. The trial judge flatly prohibited him from doing so.
Following the re-opening of the case, the trial judge asked the petitioner if he would take the stand. The state supreme court found that the petitioner declined and "refused to testify because he was prevented from introducing irrelevant and inadmissible evidence." Feole, 797 A.2d at 1065. The state supreme court found that the petitioner "voluntarily refused to take the stand after the case was re-opened, and for the second time during his trial, [the petitioner] knowingly waived his right to testify." Id.
The U.S. Supreme Court has found that a defendant's right to testify at his own criminal trial, although not found in the text of the Constitution, "has its sources in several provisions of the Constitution." Rock v. Arkansas, 483 U.S. 44, 50-52 (1986). These sources include the Fourteenth Amendment, the Sixth Amendment, and the Fifth Amendment. Id. A defendant can, however, waive this right. Jones v. Barnes, 463 U.S. 745, 751 (1 983)("It is ... recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive ajury, testify in his or her own behalf, or take an appeal.") Wainright v. Sykes, 433 U.S. 72, 93 n. 1 (1977) ("only such basic decisions as whether to plead guilty, waive a jury, or testify in one's own behalf are ultimately for the accused to make.")
The right to testify may also be limited. A defendant who testifies must comply with restrictions which are not arbitrary or disproportionate to the purposes they are designed to serve. See Rock, 483 U.S. at 56. The right to testify does not extend to testifying falsely. Nix v. Whiteside, 475 U.S. 157, 173 (1986).
Here, prior to the defense resting, the petitioner discussed with his attorney the possibility of testifying. Petitioner choose not to testify, and his attorney rested with the petitioner's concurrence. Thereafter, petitioner changed his mind. The defense counsel moved to re-open the case, which the trial court granted. The trial court then afforded the petitioner the option of testifying and he refused.
The state supreme court's decision on this issue can not be said to be an "unreasonable application" of clearly established U.S. Supreme Court precedent. "Every criminal defendant is privileged to testify in his own defense, or refuse to do so." Rock, 483 U.S. at 51, quoting Harris v. New York, 401 U.S. 222, 225 (1971). Here, the petitioner voluntarily relinquished his right to testify, twice. Accordingly, this ground fails to sustain petitioner's claim for habeas relief.
C. Petitioner's Right to Counsel
As a basis for his second ground for federal habeas relief, petitioner asserts that his Sixth Amendment right to counsel was infringed when the trial judge sua sponte required him to forgo a direct examination and to present his testimony in a narrative form. The Rhode Island Supreme Court, in addressing this issue, correctly identified controlling Supreme Court precedent, United States v. Wade, 388 U.S. 218 (1967) and Gideon v. Wainright, 372 U.S. 335 (1963). Therefore, this claim can no proceed under the "contrary to" prong. Rather, this court must ascertain whether the decision was objectively "unreasonable."
The right of a criminal defendant to be represented by counsel is firmly rooted in our system of justice. It is a right guaranteed by the Sixth Amendment to the Constitution, which provides, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. CONST. amend. VI. As the Supreme Court has stated,
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, thQugh he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.Powell v. Alabama, 287 U.S. 45, 68-69 (1932).
The participation of counsel at critical confrontations, such as the direct testimony of the accused, operates to assure that the accused's interests will be protected. U.S. v. Wade, 388 U.S. at 226. The accused, through the Sixth Amendment, is guaranteed that he need not stand alone against the state at any stage of the proceeding. See id.
The Supreme Court has concluded that the assistance of counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error." Chapman v. California, 386 U.S. 1 8, 23 (1967). When a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution, or during a critical stage, reversal is automatic. Holloway v. Arkansas, 435 U.S. 475, 489 (1978), Gideon v. Wainright, 372 U.S. 335 (1963); Hamilton v. Alabama, 368 U.S. 52 (1961); White v. Maryland, 373 U.S. 59 (1963).
Here, the trial judge required the petitioner to testify in the narrative form, without the assistance of counsel. A trial judge, however, may not place such a restraint on petitioner's presentation of his case in chief, unless, of course, the proposed testimony would constitute perjury. See Nix v. Whiteside, 475 U.S. 157. There is no evidence in the record indicating that Feole's proposed testimony would have constituted perjury. Thus, I find the decision of the trial judge to restrict the participation of the defense counsel at such a critical stage — the petitioner's direct examination, incorrect. The trial judge interfered with petitioners Sixth Amendment right to counsel.
However, in order to obtain federal habeas relief, the decision must not only be incorrect, but also "unreasonable." Unreasonable is an abstract term and is "difficult to define." Williams, 529 U.S. at 410. A state court decision may be unreasonable if it is devoid of record for its conclusion or is arbitrary. McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002). In McCambridge, the First Circuit found that "if it is a close question whether the state court's decision is in error, then the state decision cannot be an unreasonable application." Id. What is required is some increment of incorrectness beyond error, "[t]he increment need not necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court." Id.
Although I find the decision in error, I find that it fails to rise to the level of "unreasonable" which would entitle the petitioner to habeas relief. There is no dispute that Feole discussed with his attorney, prior to the defense resting, the prospect of him testifying. The petitioner either declined to testify, or acquiesced in his attorney's request that he not testify. There is no dispute that, at the eleventh hour, the petitioner changed his mind and sought out to testify on his own behalf. There is no dispute that the petitioner made it know to the defense counsel, and to the trial judge, that he changed his mind following the defense's resting of its case, and immediately prior to closing arguments. There is no dispute that the petitioner's change of heart came as a surprise to his attorney, who was unprepared to conduct a direct examination. There is also no dispute that the trial judge's (decision to re-open the defense's case in chief to permit Feole to testify, was discretionary.
Based upon these facts, I find that the trialjudge's decision to compel the petitioner to testify in the narrative form, without the assistance of counsel, following a discretionary ruling to re-open the defense's case in chief was not "unreasonable." The trial judge faced a dilemma at the eleventh hour which was the petitioner's own doing. This Court will not recommend habeas relief under the facts present here.
Conclusion
For the reasons set forth above, I recommend that the petitioner's writ of habeas corpus be denied and dismissed. Any objection to this Report and Recommendation must be specific and must be filed with the Clerk of Court within ten days of its receipt. Fed.R.Civ.P. 72(b); Local Rule 32. Failure to file timely, specific objections to this report constitutes waiver of both the right to review by the district court and the right to appeal the district court's decision. United States v. Valencia-Copete, 792 F.2d 4 (1st Cir. 1986) (per curiam); Park Motor Mart, Inc. v. Ford Motor Co., 616 F.2d 603 (1st Cir. 1980).