the judge that Williams wanted her to represent him. Williams was not present at this calendar call.
On February 27, 1990, Williams was present in court before Judge Doyle when it was confirmed that he would be represented by the Public Defender's Office. On March 1, 1990, Williams appeared, with his attorney, before Judge Doyle and dates for filing and arguing various motions were scheduled.
On March 22, 1990, Williams and his attorney, appeared before Judge Doyle to file various motions and to reschedule argument dates. On April 3, 1990, Williams and his attorney again appeared before Judge Doyle and a suppression hearing was scheduled. Up to this point, except for his arraignment, Williams was represented by counsel at several court appearances, and he never renewed his request to proceed pro se.
On July 5, 1990, Williams and his attorney appeared before Judge Donald Purple for a suppression hearing. Williams' attorney informed Judge Purple that Williams desired to proceed pro se. After being informed by Judge Purple of the pitfalls of proceeding pro se, and after Judge Purple ruled against him on an application made by his court appointed attorney to dismiss the indictment, Williams changed his mind and rescinded his request to proceed pro se.
On September 18, 1990, the matter was placed on Judge Doyle's calendar solely to hear argument on Williams' request to proceed pro se. This was Williams' third request to proceed pro se. Judge Doyle denied Williams' request to proceed pro se.
On October 18, 1990, Williams and his attorney appeared before Judge Doyle to argue a motion concerning the sufficiency of the People's Bill of Particulars. After hearing argument on the matter, Judge Doyle acknowledged receiving a letter from Williams in which he requested appointment of a new attorney. Judge Doyle denied that request. Williams did not request to proceed pro se at any other time prior to trial.
It is clear from this record, that Williams did not make an unequivocal request to proceed pro se. On at least two occasions, Williams had initially requested to proceed pro se but then changed his mind and proceeded with counsel. The fact that Williams at one point requested to change attorneys does not constitute a request to proceed pro se. Of course, there was no requirement that Judge Doyle grant Williams' request for a different lawyer.
Williams' final request to proceed pro se was denied by Judge Doyle on September 18, 1990. At no time during the balance of the pretrial proceedings or during trial did Williams renew his request. In light of Williams' past flip-flops concerning his request to proceed pro se it was well within Judge Doyle's discretion, and more prudent, to deny Williams' request. A court should not have to guess, at its peril, when an indigent defendant really wants to proceed pro se and when he is just using the request as a tactic to change lawyers or disrupt proceedings. The Fourth Department of Supreme Court, on appeal, also determined as a fact that Williams had not made an unequivocal request to proceed pro se. That finding is presumed to be correct unless it is unsupported by the record. 28 U.S.C. § 2254(d). Aside from that presumption, it is clear to me based on my own independent review of the record that Williams made no unequivocal request to proceed pro se. Therefore, in the absence of a clear and unequivocal request to proceed pro se there is no basis to grant the petition on this ground. Hodge, 761 F. Supp. at 1003.
III. Amending Habeas Petition
Williams seeks to amend his habeas petition to add the claim that his constitutional rights were violated when he was not present at a hearing conducted pursuant to People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974).
There are no specific habeas corpus rules with respect to the amendment of a habeas petition. See Rules Governing Section 2254 Cases. It is clear, however, that a petitioner cannot raise a claim which has not been presented to the highest court of the state. Rose v. Lundy, supra; Grey v. Hoke, supra; McGann v. New York, supra; Daye v. Attorney General of N.Y., supra.
It appears that this is the first time that Williams has raised this issue. Since this claim has not been properly exhausted it cannot now be considered in federal court and, therefore, Williams' motion to amend his petition is denied. See Dean v. Smith, 753 F.2d 239, 241 (2d Cir. 1985) (addressing merits of an amended claim after determining whether it was properly exhausted).
Petitioner's petition for writ of habeas corpus is dismissed.
For the reasons set forth above and because the issues raised in the petition in my view are not the type that a court could resolve in a different manner and because I do not believe that the issues are debatable among jurist of reason, I conclude that this petition presents no federal question of substance worthy of attention from the Court of Appeals and, therefore, pursuant to 28 U.S.C. § 2253 and Fed. R. App. P. 22(b) I hereby deny a certificate of probable cause. Petitioner must file any Notice of Appeal with this Court within thirty (30) days of the date of entry of the judgment.
IT IS SO ORDERED.
DAVID G. LARIMER
UNITED STATES DISTRICT JUDGE
Dated: Rochester, New York
January 13, 1994.