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November 19, 1993

RONALD GRIPPO, Petitioner,
WALTER R. KELLY, Respondent, and HOWARD R. RELIN, Intervenor.


The opinion of the court was delivered by: JOHN T. CURTIN

Petitioner, Ronald J. Grippo, filed this petition for writ of habeas corpus, complaining that his conviction in Monroe County Court on June 17, 1983, was obtained in violation of rights guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. The matter was referred to the Honorable Leslie G. Foschio for a report and recommendation, and the magistrate judge recommended that the petition be granted on the ground that petitioner was denied his right to have new counsel assigned, or alternatively, to proceed pro se at his criminal trial, in violation of the Sixth Amendment. The respondents filed objections to the magistrate judge's report and recommendation, and the court heard oral argument. Having considered the matter de novo pursuant to 28 U.S.C. § 636(b)(1), I hereby deny the petition.

 Magistrate Judge Foschio denied all petitioner's claims in support of his petition for writ of habeas corpus except the claim that the trial judge's denial of Grippo's request to defend himself pro se violated Grippo's rights under the Sixth Amendment. The magistrate judge also decided sua sponte that Grippo's right to assistance of counsel was violated when the trial court did not allow Grippo's assigned counsel to be replaced by another lawyer.

 After hearing counsels' arguments, it is clear that the only ground the court should seriously consider is whether petitioner's right to proceed pro se was violated. Grippo was indicted by a Monroe County Grand Jury on August 5, 1982, and was arraigned and assigned counsel the following day. Some time before May 22, 1983, Grippo moved to change defense counsel. The Honorable Robert P. Kennedy, Justice of the New York State Supreme Court, Supervising Calendar Judge for Monroe County, scheduled a hearing on the motion for May 22, 1983, and Grippo failed to attend the hearing.

 On May 25, 1983, Grippo wrote a letter to Justice Kennedy asking permission to proceed pro se. Justice Kennedy conducted a hearing on the motion on June 3, 1983 (trial commenced June 6). At the hearing, Justice Kennedy questioned Grippo about his education and his court experience. Kennedy then asked Grippo how he expected to be able to defend himself at trial when Grippo had already stated (in the May 25 letter) that he believed himself to be no match for a lawyer in the hearing that had been scheduled for May 22. Grippo had no response to Kennedy's question, but asked to speak to his public defender. After a discussion, Grippo asked for a change in counsel, which Justice Kennedy denied. Grippo's public defender joined the motion to assign a new lawyer, which Justice Kennedy continued to deny. On the first day of trial, June 6, 1983, Grippo's public defender moved to withdraw. The lawyer characterized Grippo's desire as "to either go pro se and have counsel assigned and have me discharged as counsel," Transcript, June 6, 1993, p. 3. The trial judge, Justice Celli, denied the motion, holding: "A determination has been made by Mr. Justice Kennedy . . . The defendant is not entitled to select attorneys . . . You will continue, sir." Id. p. 5.

 The Supreme Court addressed the right of criminal defendants to proceed pro se in Faretta v. California, 422 U.S. 806, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). In Faretta, the Court identified the criteria for evaluating a defendant's request to proceed pro se: the accused must "knowingly and intelligently" forgo "the traditional benefits associated with the right to counsel." Id. at 835. The Faretta Court noted that "weeks before trial, [defendant] clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel," Id.; and that defendant "was literate, competent and understanding and that he was voluntarily exercising his informed free will." Id. The Court concluded that "his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself." Faretta, 422 U.S. at 836.

 A criminal defendant's right to assignment of counsel and his or her right to proceed pro se are mutually exclusive. Cain v. Peters, 972 F.2d 748, 750 (7th Cir. 1992) citing McKaskle v. Wiggins, 465 U.S. 168, 183, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984). Accordingly, the courts have held that a defendant's assertion of the right to proceed pro se must be unequivocal. Cain, supra; Hodge v. Henderson, 761 F. Supp. 993, 1001-03 (S.D.N.Y. 1990), aff'd 929 F.2d 61 (2d Cir. 1991).

 Under New York law, a criminal defendant may defend pro se provided: "(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, 364 N.Y.S.2d 837, 844, 324 N.E.2d 322 (1974).

 The Second Circuit has held that "violation of a defendant's right to proceed pro se requires automatic reversal of a criminal conviction." Johnstone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986). The Court noted that the only criteria which the trial court should have considered were whether the defendant was competent to stand trial, and whether he clearly sought to represent himself after being duly warned of the risks of doing so. Id. at 216. Defendant's competency to stand trial was never questioned. Thus, the correct inquiry here must be whether petitioner's waiver of his right to counsel was knowing and intelligent, U.S. v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990), and whether it was unequivocally asserted. Petitioner's positions seem contradictory. It is true that Justice Kennedy's questioning of him appeared to be quite brusque, and the petitioner had difficulty in explaining his position. Transcript, June 3, 1983, pp. 2-5. On the other hand, the transcript indicates that petitioner wanted to proceed on two grounds from the very beginning. He wanted permission to proceed pro se and also requested new defense counsel. Id., pp. 5, 7, Transcript, June 6, 1983, pp. 3, 21-22. He did not inform the judges why he wanted to change counsel. Id. Petitioner's letters to Justice Kennedy are equivocal. They both seek change of counsel and request permission to proceed pro se.

 During his colloquy with Justice Kennedy, petitioner sought and received permission to confer with his assigned defense counsel on several occasions before responding to the judge's questions. Transcript June 3, 1983, pp. 3-6. After a break to allow petitioner to consult his attorney, he returned and talked about changing counsel, Id., p. 4, but little was said about proceeding pro se. Respondent argues that this constitutes a waiver. Petitioner argues that he was denied his right to counsel of his choice under the Sixth Amendment.

 Neither Justice Kennedy nor Justice Celli ever made an explicit ruling on the question of whether petitioner's request to proceed pro se was clear, unequivocal and timely. In this case there is support for the judges' approach, because petitioner himself said that he did not have the ability to match the District Attorney and repeatedly requested new counsel.

 The petitioner's argument that he was denied the right to proceed pro se is also defeated to a certain extent by the proceedings before Justice Celli on June 6, when the only issue petitioner discussed was his request to change counsel. Again, he gave no reason. Perhaps Justice Celli should have asked petitioner why he wanted to change lawyers, but he did not.

 Magistrate Judge Foschio's comments upon the way Justice Kennedy handled the hearing on June 3 are justified. Clearly, the judge cut both defense counsel and defendant off in a number of places. It would have been better if the judge had taken a more deliberate approach, but whether his preemptory disposition of the matter was a violation of defendant's constitutional rights under the circumstances is the question. It appears that Justice Kennedy never made a finding as to whether or not there was a waiver of the right to self-representation; but because of the ambiguity of petitioner's statements in court and his letters, in which he seemed to equivocate between demanding the right to proceed pro se and requesting a change of counsel, it was difficult to determine exactly what petitioner wanted to do.

 The key questions to answer in evaluating Grippo's Sixth Amendment claim are whether Grippo had intended to exercise his Sixth Amendment right to proceed pro se and, if so, whether he subsequently waived that right. Respondent has argued that Grippo's real desire was to obtain a new defense lawyer, and that he never truly intended or desired to represent himself. Respondent further argues that even if Grippo did unequivocally assert his right to proceed pro se, he subsequently waived that right by failing to persist in asserting it and by consulting his attorney when asked what he wanted to do.

 Petitioner, of course, argues that Grippo understood it would have been futile to press his request to proceed pro se in the face of Justice Kennedy's clear opposition to the idea.

 The Court has carefully reviewed the relevant portions of the transcript, which are attached as an appendix to this opinion, and concludes that petitioner's request to proceed pro se was neither clear nor unequivocal. It appears from the record that petitioner's real desire was to obtain different counsel.

 The Appellate Division held: "Contrary to defendant's claim, he was not denied his constitutional right to proceed pro se. The record shows that after questioning by the court, defendant abandoned his request to proceed pro se and, instead, requested the assignment of new counsel." People v. Grippo, 124 A.D.2d 985, 508 N.Y.S.2d 803 (4th Dept. 1986). Reviewing a similar set of facts, the Court of Appeals for the Seventh Circuit held:

"Waiver" in criminal law is a fact-specific concept, to which the presumption of correctness in 28 U.S.C. § 2254(d) applies. And s 2254(d) is no less applicable to findings by appellate courts than to findings by trial courts. Collateral review is not a repechage1 round in which the loser in one system of courts starts from scratch in another.

 Cain 972 F.2d at 749-50 (citations omitted). Where petitioner stood moot after the trial court's denial of his motion and did not raise the subject at trial, the Court held, "He had plenty of time to protest but did not, which usually means surrender." Id. Here, after the exchanges quoted in the Appendix, petitioner never again renewed his request to proceed pro se. Although he made clear his dissatisfaction with his public defender, his demand was primarily for a new lawyer, and he ultimately participated in the trial of his case.

 Based on the transcript of the proceedings in the trial court, I find that petitioner did not clearly and unequivocally assert a desire to defend himself and accordingly, deny the petition. I hereby adopt the balance of the Magistrate Judge Foschio's report and recommendation.

 Because I have not affirmed the magistrate judge's recommendation granting the petition, I will grant the application for a certificate of probable cause. If the petitioner appeals, he may appeal as a poor person.

 So ordered.


 United States District Judge

 Dated: November 19, 1993




 May 25, 1983

 Hon. Robert P. Kennedy presiding

 page 2-8

 Mr. Rowe: Ronald J. Grippo

 The Court Mr. Grippo refused to leave his cell?

 Deputy Sheriff: Yes, sir.

 The Court: In the letter that I sent to you, Mr. O'Brien, a copy of which was sent to Ronald Grippo dated May 16, I said in the letter, "If the Defendant elects to remain in his cell as he says he will do in his letter, I will not go into the matter any further." That being the case I will not consider his application for new counsel.

 Mr. O'Brien: Very well. Your Honor.

 The Court: This matter will stay on the calendar ...

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