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July 2, 1993


The opinion of the court was delivered by: CON. G. CHOLAKIS


 Petitioner Robert Hacker complains of a judgment of conviction rendered in the Broome County Court on March 3, 1982, after a jury found him guilty of Rape and Sodomy, First Degree, and Robbery, First Degree. Petitioner was sentenced to an indeterminate term of 12-1/2 to 25 years imprisonment. The Appellate Division, Third Department, affirmed on December 5, 1985, and the New York State Court of Appeals denied leave to appeal on February 18, 1986.

 The Broome County Court denied a motion to vacate the conviction pursuant to New York Crim. Proc. Law § 440.10, both on the merits of some issues and on petitioner's failure to raise other issues on appeal. The petitioner made a motion for a writ of error corum nobis in the Appellate Division, Third Department. This motion was based on the petitioner's claim that appellate counsel rendered ineffective assistance by failing to raise on appeal the issue of the denial of petitioner's right to self-representation at trial.

 The Appellate Division agreed with petitioner and reinstated his direct appeal, based upon the self-representation issue, on June 19, 1990. On November 21, 1990, after the issue was briefed and argued by both parties, the Appellate Division affirmed the conviction. The New York Court of Appeals denied leave to appeal on March 4, 1991.

 Having exhausted his state court remedies, petitioner now seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner originally raised four grounds for this court's review: (1) unconstitutional denial of petitioner's application to proceed pro se; (2) improper refusal to suppress petitioner's pretrial identification; (3) ineffective assistance of counsel; and (4) unduly harsh and biased sentence. Petitioner has since withdrawn the claim of unduly harsh sentencing. *fn1"

 Respondent argues for denial of the petition, claiming both that some of petitioner's claims are procedurally barred from federal review, and that the remaining claims fail on the merits.

 Magistrate Judge Gustave J. Di Bianco, in his Report/Recommendation, recommends that the petition be denied and dismissed. With respect to petitioner's claims regarding pretrial identification and ineffective assistance of counsel (numbers 2 and 3), the recommendation of the magistrate judge is accepted and adopted. With respect to petitioner's first claim, however, the recommendation of the magistrate judge is rejected. Petitioner was denied his Sixth Amendment right to self-representation, and he is entitled to a remedy from this court.


 A. The Right to Self-Representation

 1. Federal Law

 The Sixth Amendment of the United States Constitution grants a criminal defendant the right to represent himself in proceedings against him. Faretta v. California, 422 U.S. 806, 819, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). If a defendant chooses to forego the services of defense counsel and act on his own behalf, the state cannot compel him to accept a lawyer he does not want. Id. at 883. Counsel that is thrust upon the accused becomes "an organ of the State interposed between an unwilling defendant and his right to defend himself personally." *fn2" Id. at 820.

 The right to defend pro se must be asserted, and carries with it the concomitant relinquishment of the right to counsel. Id. at 835. Because such a waiver of the right to counsel may greatly disadvantage the defendant, there is a strong presumption against it. *fn3" Johnson v. Zerbst, 304 U.S. 458, 464, 82 L. Ed. 1461, 58 S. Ct. 1019 (1937). The Supreme Court has held that waiver will not be valid unless "knowingly and intelligently" made. Faretta, 422 U.S. at 835 (quoting Zerbst, 304 U.S. at 464-65).

 Furthermore, the Second Circuit, in an attempt to forestall attacks on adverse verdicts by convicted criminals who were represented by counsel, has held that a defendant's request to proceed pro se must also be "unequivocal." United States v. Denno, 348 F.2d 12, 15-16 (2nd Cir. 1965).

 2. New York State Law

 The New York courts have incorporated both of these requirements into a three-prong test, restricting a defendant's right to proceed pro se to circumstances where: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues. People v. McIntyre, 36 N.Y.2d 10, 17, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322 (1974).

 B. Standard of Review of State Court Decisions

 At issue in this case is whether the state courts' application of the New York test violated the petitioner's Federal Constitutional right to self-representation. When entertaining an application for a writ of habeas corpus instituted to contest a state court judgment, any factual determination by the state court shall be presumed to be correct unless it is "not fairly supported by the record." *fn4" 28 U.S.C. § 225(d). The magistrate judge, after reviewing the case under this standard, issued a Report/Recommendation. This recommendation is subject to de novo review by this court, which may accept, reject, or modify it, in whole or in part. Local Rule 43 II (1) (b) of the United States District Court for the Northern District of New York.

 C. Analysis

 In an attempt to separate what are often overlapping issues, each of the three prongs of the New York test should be considered separately. Factual determinations have been made by the state courts on only the first two prongs: i.e., the trial judge found that petitioner's waiver of his right to counsel was not knowing and intelligent, and the appellate court, on writ of error corum nobis, found that petitioner's assertion of his right of self-representation was equivocal. Those determinations are the only ones reviewable by this court.

 Because the third prong of the test, relating to conduct of the petitioner, was discussed and given weight by the magistrate judge and was also mentioned in both state court proceedings, it will be briefly discussed here as well. It bears repeating, however, that no factual determination was made by the state courts on this ground.

 1. The State Court's Finding that Petitioner's Request was Equivocal is Not Fairly Supported by the Record.

 Under the first prong of the New York test, a request to defend pro se need not be granted unless it is both timely asserted and unequivocal. McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d at 844. To be "timely asserted" the request need only be made before commencement of the trial. Id. The state courts made no finding on the issue of timeliness in this case, and, in fact, the record shows that the request was made prior to trial.

 The state appellate court did make a finding concerning the equivocality of petitioner's request. The court held that

we are of the view that the record does not show the required unequivocal request. Rather, it was a spur of the moment decision, prompted more by defendant's dissatisfaction with the denial of his request to change assigned counsel than by a knowing and voluntary election to forego the benefits of an attorney and proceed pro se.

 People v. Hacker, 167 A.D.2d 729, 563 N.Y.S.2d 300, 301 (3d Dep't 1990), appeal denied, 77 N.Y.2d 906, 569 N.Y.S.2d 938 (1991) (citation omitted).

 The New York courts have defined an unequivocal request as one that is "clearly and unconditionally presented to the trial judge." McIntyre, 36 N.Y.2d at 17, 364 N.Y.S.2d at 844. The question of clarity is best resolved by "scrutiny of petitioner's actual statement to the trial judge." Wiesner v. Abrams, 726 F. Supp. 912, 918 (E.D.N.Y. 1989), aff'd mem., 909 F.2d 1473 (2nd Cir. 1990). Petitioner made his request during the following exchange with the trial judge:

Court: My obligation is to assign competent trial counsel; I have met that obligation. Your choice, as far as I'm concerned, is to utilize trial counsel that's made available to you or doing without it [sic].
Defendant: I will do without it then.
Court: You're going to represent yourself?
Defendant: Yep.
Court: You're sure you want to do that?
Defendant: Yep.

 Appendix to Petitioner's Motion for Writ of Error Corum Nobis at 8-9 ...

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