No. 5:99 CV 0370
April 15, 2002
REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE
Charles Swiger is a prisoner in state custody seeking to overturn his convictions for grand theft and breaking and entering following a jury trial at which he defended himself pro se. Respondent has conceded that Swiger has exhausted his state remedies with respect to his sole ground of denial of counsel, and that no procedural default exists which would preclude federal collateral review.
Swiger's sole ground is that he was denied his right to the assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution at his trial. Swiger had raised this issue unsuccessfully including appeal to the Supreme Court of the United States. See State v. Swiger, 1996 WL 243795 (Ohio App. 5 Dist. March 27, 1996); State v. Swiger, 77 Ohio St.3d 1412, 670, N.E.2d 1001 (1996) (Table), reconsideration denied by State v. Swiger, 77 Ohio St.3d 1449, 671 N.E.2d 1286 (1996) (Table), cert. denied, Swiger v. Ohio, 520 U.S. 1254, 117 S.Ct. 2415, 138 L.Ed.2d 179 (1997).
AEDPA is Applicable:
In this case Swiger takes the position that the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) is inapplicable because the trial occurred before the Act's effective date. However, it is the time of filing of the habeas petition that governs whether the AEDPA applies. See Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Williams v. Taylor, 520 U.S. 420, 429, 120 S.Ct. 1479, 1486 (2000); Seymour v. Walker, 224 F.3d 542, 549 (6th Cir. 2000), cert. denied, 532 U.S. 989 (2001). The application was initially filed in the Southern District of Ohio on April 10, 1998, well after AEDPA's 1996 effective date.
Standard of Review:
Swiger argues he is entitled to de novo review under former § 2254(d) under the theory that waiver of counsel is a mixed question of law and fact to which the state court's decision is not entitled to deference. Respondent on the other hand contends that under the AEDPA, the state court's findings are entitled to deference pursuant to current § 2254(d) and (e). Respondent is correct.
Following briefing of this case the Supreme Court determined in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) that the new standard for federal habeas corpus review is set out in § 2254(d)(1) and (2). The applicable standard as explained in Seymour v. Walker is as follows:
Under AEDPA, a writ of habeas corpus shall not issue unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court," 28 U.S.C. § 2254 (d)(1), or was based on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding," 28 U.S.C. § 2254 (d)(2).
Noting that AEDPA "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court," the Supreme Court illuminated the meaning of § 2254(d)(1) in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) . . .
A state-court decision is "contrary to" Supreme Court precedent "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law," or "if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent" and arrives at a different result. Id. at _____, 120 S.Ct. at 1519. A state-court decision involves an unreasonable application of Supreme Court precedent "if the state court identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular . . . case" or if the state court either unreasonably extends or unreasonably refuses to extend a legal principle from Supreme Court precedent to a new context. Id. at _____, 120 S.Ct. at 1520. The reasonableness of the state court's opinion is judged by an objective rather than subjective standard. See Id. at 120 S.Ct. at 1521-22; Harris [v. Stovall], 212 F.3d  at 942-43 [6th Cir. 2000].Id., 224 F.3d at 549.
An integral part of the foregoing governing standard is the question of whether harmless error would apply to this situation. Swiger interjects that respondent's interpretation would mean that under the AEDPA no conviction, albeit constitutionally defective, would be overturned unless no reasonable jurist would agree with the state court's decision. Swiger maintains that there was a structural defect at his trial which was not subject to harmless error analysis and the State cannot show that Swiger knowingly and intelligently and voluntarily waived his Sixth Amendment right to counsel before electing to represent himself.
Constitutional error is harmless where the error has no substantial and injurious effect or influence in determining the jury's verdict. See Brecht v. Abrahamson, 507 U.S. 619, 622-23, 113 S.Ct. 1710, 1713-14, 123 L.Ed.2d 353 (1993). An error found to be harmless does not entitle a prisoner to habeas relief On the other hand, there are a few fundamental constitutional guarantees which if denied cannot be excused due to harmlessness. Swiger is correct, denial of counsel at trial is a structural defect, and constitutes one of those "very limited classes of cases" subject to automatic reversal if the violation occurs. See Neder v. U.S., 527 U.S. 1, 8, 119 S.Ct. 1827, 1833, 144 L.Ed.2d 35 (1999); Johnson v. U.S., 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (total deprivation of the right to counsel mandates automatic reversal). The district court cannot apply harmless error analysis in this situation. Swiger is correct that an impregnable case against him cannot be used to alleviate the denial of counsel if there was no valid waiver. Therefore, there can be no "reasonable jurist" argument. However, while Swiger does raise a valid point, it does not detract from his burden to demonstrate that the state adjudication resulted in a decision that was contrary to or involved an unreasonable application of clearly established federal law as determined by the Supreme Court, or was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.
The only "reasoned" state court adjudication concerning the allegation of ineffective assistance of counsel is the decision from the state appellate court, which in pertinent part stated:
The trial court set the date for appellant's trial as January 18, 1995. On that day, the prosecutor filed a new indictment for the same charges, but appellant [Swiger] failed to appear for trial and his bond was revoked. On February 1, 1995, appellant requested new counsel be appointed because, he informed the court, he lacked confidence in the public defender appointed for his defense. The trial court found appellant's attorney had competently represented him, and offered him another public defender. Appellant declined, and the trial court informed appellant that if the public defender's office was not satisfactory, then he would have to proceed pro se. The cause finally came to trial on February 21 and appellant represented himself pro se.
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Appellant next argues his sixth amendment right to the assistance of counsel was violated when the trial court declined to appoint another attorney after appellant informed the court he had lost confidence in his public defender. We note the trial court specifically found appointed counsel was not ineffective.
In State v. Bradley (1989), 42 Ohio St.3d 136, the Supreme Court adopted the test for ineffectiveness of counsel announced by the U.S. Supreme Court in Strickland v. Washington (1984), 466 U.S. 668. In order to demonstrate the ineffective assistance of counsel, an accused must show counsel's performance fell below an objective standard of reasonable representation, and actual prejudice to the accused arising out of counsel's performance. We find the record does not support appellant's claim of ineffective assistance of counsel.
Appellant also argues he did not waive his right to counsel in writing as required by Crim. R. 44(D). The trial court conducted an extensive hearing at which appellant represented he did not wish to keep the counsel who had been appointed, and also rejected the possibility of any other public defender being capable of representing him. At this point, the trial court declined to appoint another independent counsel. The gist of appellant's dissatisfaction with defense counsel was the possibility the sentence for the pending charge would be enhanced because of his prior convictions. The trial court correctly informed appellant his past criminal history was an issue for trial regardless of who represented him.
We find on the specific facts of this case the trial court did not deny appellant the assistance of counsel. The trial court offered appellant several choices, and appellant chose to proceed pro se. We find the trial court did not err.
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The record indicates appellant had approximately one week from learning the trial court would not appoint new counsel until the case was called for trial.
The State points out appellant displayed experience in criminal proceedings, and had ample opportunity before the hearing on February 13 to review his pending case. The State urges us to find appellant's motion for continuance was made only to obstruct and delay the case coming to trial.State v. Swiger, 1996 WL 243795 *1-*3.
In his final briefing Swiger abandons his earlier arguments for de novo review and couches his argument under the deferential standard of § 2254(d) and (e) to raise the issue of whether the state court's decision was a product of reasoned judgment reflecting a level of deliberation essential to the resolution of an important constitutional issue. It goes without saying that when a prisoner represents himself pro se at trial he has been deprived of effective assistance of counsel. The relevant question is not whether Swiger received effective assistance of counsel, which he did not, but whether he validly waived such assistance. The Supreme Court in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), had warned:
When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. Johnson v. Zerbst, 304 U.S. at 464-65, 82 L.Ed. 1461, 58 S.Ct. 1019, 146 ALR 357. Cf. Von Moltke v. Gillies, 332 U.S. 708, 723-724, 92 L.Ed. 309, 68 S.Ct. 316 (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he 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." Adams v. United States ex rel. McCann, 317 U.S. at 279, 87 L.Ed. 268, 68 S.Ct. 236, 143 ALR 435.Id., 422 U.S. at 835.
In light of Faretta, the facial deficiency in the state appellate's court's reasoning becomes apparent. The state court explained its decision utilizing the familiar Strickland v. Washington standard and did not make reference to a standard for constitutional analysis of effective waiver of counsel. Swiger's position is that he did not desire to be left without counsel's assistance. The evidence from the trial court's pre-trial hearing, however, contradicts his claim. Before Swiger failed to appear for trial on January 18, 1995, defense counsel conveyed a plea bargain offer to him of two and one-half to ten years. After apprehension Swiger demanded that the court provide an attorney that would try to prove his innocence rather than "trying to get me to plead guilty to something I didn't do." Counsel had conveyed to Swiger that he would likely be found guilty.
Strickland set out a two-prong test requiring demonstration that counsel's performance was deficient and that these deficiencies were prejudicial to the outcome of the case. Id., 466 U.S. at 687, 104 S.Ct. at 2064.
The trial court made it very clear after hearing from Swiger and his defense counsel, that the concerns Swiger had voiced were unfounded and his attorney had acted competently. After Swiger had refused to accept another public defender claiming they conspired against him, the court gave Swiger the option of going forward with current counsel or proceeding pro se. Swiger had no basis for his assertion that the public defender's office was working against his interests. Swiger negated all options including self-representation. Swiger presented the court with a ridiculous position where he refused court-appointed counsel and refused self-representation. If postponement was what he sought, it did not work, and the case proceeded to trial despite Swiger's protest at trial that he was "forced" to defend himself without counsel, and "any of these matters that are handled here today are handled totally without my involvement."
The trial court had noted that retention of private counsel was not an option for Swiger since he claimed indigency.
The Sixth Amendment provides that: "[i]n all criminal prosecutions the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense . . ." This has been judicially construed to require indigent defendants facing incarceration be offered court-appointed counsel unless the accused intelligently and competently waives that right to counsel. Nichols v. U.S., 511 U.S. 738, 743, 114 S.Ct. 1921, 1925, 128 L.Ed.2d 745 (1994); Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1243, 51 L.Ed.2d 424 (1977). The analysis required of the appellate court is to determine whether the right to counsel was waived by a voluntary and knowing action with the admonition that "[w]aiver will not be `lightly presumed' and a trial judge must indulge every reasonable presumption against waiver." Boyd v. Dutton, 405 U.S. 1, 4, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972). Waiver though need not be express. Implied waiver of the right to counsel may arise and review must be based upon "[t]he particular facts and circumstances of each case including the background, experience, and conduct of the accused." Martin v. Rose, 744 F.2d 1245, 1251 (6th Cir. 1984); Parshay v. Buchkoe, 427 F.2d 978, 980 (6th Cir. 1970); Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed.2d 1461, 146 A.L.R. 357 (1938).
The state reviewing court did consider the background experience and conduct of the accused making an implicit finding of waiver and concluded there was no denial of effective assistance of counsel. In this circuit it has been recognized that there are limitations to an indigent's rights to counsel of his own choosing. An indigent must make a timely and good faith motion for change of counsel and further establish "good cause" for the substitution. United States v. Iles, 906 F.2d 1122, 1130 (6th Cir. 1990); United States v. Jennings, 945 F.2d 129, 132 (6th Cir. 1991). This is precisely what Swiger did not do. The facts related by the state appellate court show that on the date set for trial, Swiger did not appear. When Swiger was later apprehended, he moved for new counsel. As the state appellate court noted, the trial court did offer Swiger the appointment of another public defender. Swiger refused to have a public defender represent him. In effect, Swiger's arguments were merely obstreperous conduct. He did not want the public defender representing him and he refused all options including self-representation. Further, the court noted that Swiger had experience in criminal matters. At the time the indicted crimes were committed, he was on parole following a burglary conviction from the State of West Virginia, and had a prior theft conviction from Wayne County, Ohio. Moreover, Swiger's concerns over his prior convictions were noted by the state appellate court. There was consideration of the "background, experience and conduct of the accused" as required in constitutional analysis of the issue of implicit waiver of the right to counsel.
Swiger counters that the record in this case discloses no investigation by the trial court with respect to Swiger's desire to represent himself or be without counsel. True there was no investigation where the trial court in accordance with Faretta expressly informed Swiger of the "damages and disadvantages of self-representation." However, Swiger was not a novice criminal defendant. This was at least his third felony trial. He had experience and from his conduct at the hearing, obviously knew he had a right to court-appointed counsel. Court-appointed counsel appeared and testified at that hearing. Thus, Swiger had made a voluntary and intelligent decision in waiving counsel. "Intelligent" being used here only in its legal sense of a knowing waiver of counsel. As respondent had argued, Swiger has not carried his burden under § 2254(e)(1) of rebutting the presumption of correctness given state court factual determinations with clear and convincing evidence.
Given the findings by the state court that there was an investigation by the trial court and the recitation of findings sufficient to support an implied waiver of the right to counsel under Supreme Court standards, there was no error on which to grant this writ. Swiger has not made a case demonstrating either an unreasonable application of clearly established federal law or a determination of the facts contrary to the evidence presented in the state court proceedings. Accordingly, the application under § 2254 must be denied.
CONCLUSION AND RECOMMENDATION
Following review of the petition and applicable law, Swiger has not demonstrated that he is in custody pursuant to a judgment of the state court which resulted in a decision that was contrary to or involved unreasonable application of Federal law as determined by the Supreme Court of the United States or that it was the result of a decision based on an unreasonable interpretation of the facts in light of the evidence in the State court proceeding. See 28 U.S.C. § 2254 (d)(1) and (2). The undersigned has reviewed the record of the recorded trial proceedings and found no error resulting in denial of fundamental fairness or cause to hesitate due to the probability of actual innocence. There has been no demonstrated need for an evidentiary hearing. It is recommended that Swiger's application for habeas corpus be denied.
Further, it is recommended the Court should certify pursuant to 28 U.S.C. § 1915 (a)(3) that an appeal from this decision could not be taken in good faith, and there is no basis upon which to issue a certificate of appealability. 28 U.S.C. § 2253 (c), Fed.R.App.P. 22(b).
ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of Court within ten (10) days of mailing of this notice. Failure to file objections within the specified time WAIVES the right to appeal the Magistrate Judge's recommendation. See, United States v. Walters, 638 F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).