The opinion of the court was delivered by: MCAVOY
By his petition and supporting Memorandum of Law filed on March 27, 1995, Petitioner Arthur Larrabee, a pro se state prisoner, seeks a writ of habeas corpus pursuant to 28 U. S. C. § 2254. On behalf of Respondent, the Attorney General of the State of New York filed a Memorandum of Law in Opposition to Petitioner's application on July 18, 1995. Petitioner filed a Reply Memorandum of Law on July 24, 1995.
Larrabee was jointly tried and convicted with two other co-defendants, after a jury trial before Judge Wallace C. Van Auser, Oswego County Court, on the charge of Burglary in the Third Degree, See N.Y. Penal Law § 140.20 (McKinney 1988), Possession of Burglars Tools, see N.Y. Penal Law § 140.35 (McKinney 1988), and Petit Larceny, see N.Y. Penal Law § 155.25 (McKinney 1988). Larrabee was sentenced as a persistent felony offender to a term of incarceration of fifteen years to life imprisonment on April 17, 1992. On July 15, 1994, his conviction was affirmed by the Supreme Court of the State of New York, Appellate Division, Fourth Department. People v. Treadwell, 206 A.D.2d 861, 616 N.Y.S.2d 127 (4th Dep't 1994). The New York State Court of Appeals denied leave to appeal on January 3, 1995, and a subsequent "Application for Reconsideration" to the New York Court of Appeals was denied on January 23, 1995. Having exhausted his state remedies, Petitioner instituted a writ of habeas corpus and raised as his sole claim for relief that he was denied his constitutional right to self-representation. For the reasons set forth below, the Petition is granted.
On or about August 19, 1991, Petitioner and two other co- defendants were arrested in connection with a burglary committed at the Express Mart convenience store in Pulaski, New York. Petitioner was scheduled to be tried with the co- defendants on January 13, 1992. On the morning of trial, Petitioner's assigned counsel, Mr. Lambertus Jansen, failed to appear due to his ill health. Instead, Jansen submitted a motion for a two week adjournment or a severance. At proceedings conducted on January 13th, the court denied the motion for severance and adjourned the trial to January 27, 1992. The court also discharged Mr. Jansen from his representation of Petitioner and assigned Robert J. McBride, Esq. to serve as defense counsel.
On January 20th, a week before the scheduled commencement of trial, Petitioner made a written request to Judge Van Auser to proceed pro se. Petitioner expressed that he "[did] not wish to postpone this trial or cause it to be delayed by this letter." When court convened on January 27th, Judge Van Auser conducted a colloquy with Petitioner regarding his request. The Court first asked Petitioner if he felt qualified to represent himself (Trial Transcript ["T"] at 2). The Judge then discussed the qualifications necessary to become a trial attorney, and asked Petitioner if he thought he was qualified in the areas of trial strategy and trial psychology (T. 2-3). Judge Van Auser asked Petitioner if he thought he could properly make objections, ask questions, and know when not to ask questions. Petitioner replied that he wasn't sure (T. 2-4). Judge Van Auser wanted the matter clear on the record and asked Petitioner again whether he still wished to represent himself (T. 4). Petitioner expressed that he did (T. 4). Judge Van Auser then granted his request to proceed pro se, but warned Petitioner that the court would not assist him in his defense and that assigned counsel would be required to sit with him and advise him (T. 4-5).
At that point, however, the prosecutor and counsel for both co-defendants objected to Petitioner's request on the grounds that Petitioner might prejudice the co-defendants' cases (T. 7-11). The Prosecutor mentioned that Petitioner had not viewed the People's evidence, and that the "prudent" matter would be for the Court to deny Petitioner's application, "especially in light of his lack of understanding of certain legal principles, practices and the like" (T. 10). Counsel for the co-defendants agreed with the prosecutor, and requested that the court sever their trial from Petitioner's trial (T. 10-11). As a result of these objections, Judge Van Auser changed his mind, and decided to prohibit Petitioner from proceeding pro se :
I think that all things considered here, the fact that inartful presentation of questions and witnesses by Mr. Larrabee personally could well prejudice, not only himself, but the other defendants, together with the fact that Mr. Larrabee has not even seen the District Attorney's file and evidence box . . . it doesn't make any sense at all for Mr. Larrabee to represent himself. I cannot allow it in this case. This is the day of trial, and Mr. Larrabee has specified in his request concerning representing himself that there be no delay. Well, I can grant that part of his request. There will be no delay. Your request to represent yourself is denied, Mr. Larrabee. (T. 13-14).
Petitioner proceeded to trial with his court-appointed counsel, and was convicted as a persistent felony offender and sentenced to a term of incarceration of fifteen years to life imprisonment on April 17, 1992.
Petitioner raises only one claim as a basis for relief-- that he was denied his constitutional right to self- representation. When entertaining an application for a writ of habeas corpus contesting 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." 28 U. S. C. § 2254(d). Magistrate Judge Gustave J. DiBianco, after reviewing the case under this standard, issued a Report- Recommendation recommending that the petition be denied and dismissed. Because objections have been filed, this recommendation is subject to de novo review by this Court, which may accept, reject, or modify it, in whole or in part. See 28 U. S. C. § 636(b)(1).
B. The Right to Self-Representation
The Sixth Amendment of the United States Constitution grants a criminal defendant the right to self-representation 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. Faretta, 422 U.S. at 833. The right to proceed pro se may be exercised by "all criminal defendants who knowingly, voluntarily, and unequivocally waive their right to appointed counsel." Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986) (citing Faretta, 422 U.S. at 835-36). A pro se defendant need not possess the skill and experience of a lawyer, although he should be made aware of the dangers and disadvantages of self- representation, so that the record will establish that his choice was made with "his eyes open." Adams v. United ...