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State court reasonably rejected claim that defendant was denied the right to represent himself

Laderian McGhee v. Michael A. Dittmann, 7th Circuit Court of Appeals No. 14-1763, 7/22/15

The Wisconsin Court of Appeals reasonably applied federal law in rejecting McGhee’s claim that he was denied the right to self-representation under Faretta v. California, 422 U.S. 806 (1975).

McGhee tried to discharge his trial lawyer on the morning of trial and became disruptive when the trial judge refused to allow counsel to withdraw. (Slip op. 2-13). After a convoluted journey through the state courts in search of postconviction relief on various grounds (slip op. at 13-15), McGhee sought federal habeas relief on the Faretta issue. The Seventh Circuit holds the state court didn’t err in holding that McGhee had not “clearly and unequivocally” stated his desire to represent himself and therefore had not invoked his right to self-representation.

…. [McGhee] contends that he is entitled to habeas relief because the state court’s determination that he had not clearly and unequivocally invoked his Faretta rights was objectively unreasonable. Specifically, he submits that his desire for self-representation was evident from the following: (1) his repeated demands to discharge his attorney, (2) his declaration that he was going to “speak up for [himself]” and that he could not be “expect[ed]…to sit [t]here and…say nothing in [his] own defense,” and (3) his request “to speak like everybody else.”… Taken together, Mr. McGhee asserts, these statements leave “no question that [he] was requesting to represent himself.” ….

…. Mr. McGhee never clearly articulated a desire to represent himself. A request to discharge counsel, without more, ordinarily does not signal a clear desire for self-representation. See United States v. Long, 597 F.3d 720, 724 (5th Cir. 2010) (“[S]omething more than just firing one’s attorney is required before one clearly and unequivocally requests to proceed pro se.”). Here, although Mr. McGhee did request, explicitly, to discharge his attorney, he never asked to forego counsel entirely…. Tellingly, when asked whether he was ready to proceed to trial that day without counsel, Mr. McGhee did not ask to represent himself, but rather declared that he was not “going to no trial today.”… Because this statement suggests that Mr. McGhee was “seeking more time to retain other counsel rather than seeking to proceed pro se,” we cannot conclude that it expresses a clear desire for self-representation. United States v. Jones, 938 F.2d 737, 742 (7th Cir. 1991); see also United States v. Loya-Rodriguez, 672 F.3d 849, 857 (10th Cir. 2012) (noting that conduct which could be construed as “result[ing] from a desire for different counsel” does not clearly and unequivocally express a desire for self-representation).

Similarly, Mr. McGhee’s declaration that he was going to “speak up for [himself]” and that he could not be “expect[ed] …to sit [t]here and…say nothing in [his] own defense” do not clearly communicate a desire to proceed without counsel…. Mr. McGhee made these statements during the course of an expletive-ridden tirade against the court’s earlier rulings excluding his witnesses and denying the withdrawal of his attorney. During that outburst, he accused the court of trying to “railroad” him and stated that he was not going to “sit…[t]here and accept” it…. Further, when warned about his behavior, Mr. McGhee responded, “Fuck warned. I’m telling you if I can’t have my witnesses, fuck this trial too.”… Viewed in this context, Mr. McGhee’s desire to “speak up for [himself]” suggests an intent to disrupt the proceedings rather than a request for self-representation.

Finally, Mr. McGhee’s request “to speak like everybody else” does not clearly express a desire for self-representation…. Whether considered in isolation or in context, this statement is ambiguous. See Loya-Rodriguez, 672 F.3d at 858 (concluding that a defendant’s request “to communicate…, personally and verbally, during the following hearings, with the Court,…without the help of an attorney” did not clearly indicate a desire for self-representation). At the time Mr. McGhee made this request, he had just been reprimanded for his disruptive courtroom behavior. When asked what he meant by the request, Mr. McGhee responded, “I mean speak when they saying something. You going to speak up for it. I’m going to speak up for myself if somebody got to say it. Judge ain’t going to say it for me.”… The court understood these remarks as a request for permission to interrupt the proceedings. In light of Mr. McGhee’s prior disruptive conduct, we believe that the court’s interpretation of his remarks was reasonable…. Thus, even if his request to “speak like everybody else” could be interpreted as a request to proceed without counsel, it certainly does not constitute a clear and unequivocal demand to do so. …. (Slip op. at 19-22).

A note about McGhee’s convoluted journey though the state courts: His direct appeal did not raise a Faretta issue, so McGhee eventually raised the issue via an unsuccessful petition for a writ of habeas corputs in the court of appeals under State v. Knight, 168 Wis. 2d 509, 484 N.W.2d 540 (1992), which alleged appellate counsel was ineffective for failing to argue the issue. (Slip op. at 15). In response to McGhee’s habeas petition, the state argued that McGhee had failed to exhaust his state court remedies by not raising the self-representation claim on direct appeal. (Slip op. at 16). The district court held the Knight petition was sufficient to exhaust state review (id.) and in the Seventh Circuit the state dropped its failure-to-exhaust defense. (Slip op. at 17 n.16).

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