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January 16, 2004.

WILLIE SPIRLES, Petitioner, -vs- THOMAS RICKS, Superintendent, Respondent

The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District



Petitioner Willie Spirles ("Spirles") filed this petition pro se for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Monroe County Court on four counts of robbery and two counts of grand larceny. For the reasons set forth below, Spirles' § 2254 petition is dismissed.


  On June 7, 1996, Spirles and two confederates entered the A-Plus Mini-Mart on South Clinton Avenue in the City of Rochester at about 2:27 a.m. One associate fired a shot into the ceiling and the other ordered the cashier to empty the cash register. Meanwhile, Spirles pushed another employee to the floor and demanded that he hand over his money. As the three perpetrators fled the mini-mart with the cash drawer, $10, and a cigarette lighter, the one with the gun fired another shot into the wall. The entire robbery was captured on the store's surveillance camera.

  A week later, police officers responded to a domestic-violence complaint at the residence of Spirles' girlfriend, Crystal Alexander ("Alexander"), because Spirles had beaten and pistol-whipped her. Alexander, for whom the police happened to have an outstanding bench warrant, was arrested at that time. After her arrest, she told the police that she had driven the get-away car in the Page 2 A-Plus Mini-Mart heist, and she identified the three perpetrators of the robbery, including Spirles. After being picked up for questioning, Spirles admitted his involvement in the robbery.

  At one of his first appearances before Monroe County Court Judge Nancy Smith, Spirles objected to being represented by a Monroe County Assistant Public Defender who had been assigned to the case. Spirles gave no reason for his dissatisfaction and Judge Smith advised him that he could hire his own lawyer if he wished to do so, but a new lawyer would not be appointed for him. At a later proceeding, Spirles again objected to being represented by the Assistant Public Defender, and requested that he act as his own attorney. Following a hearing held January 22, 1997, Spirles was allowed to represent himself at trial, although assigned counsel remained throughout trial as standby counsel.

  On February 27, 1997, Spirles was convicted on all charges and was sentenced as a second violent felony offender to concurrent terms of 25 years for each robbery count and terms of 2 to 4 years on the grand larceny counts. Spirles, represented by counsel, appealed his conviction to the Appellate Division, Fourth Department. Spirles also filed a supplemental pro se brief raising additional arguments. The Fourth Department unanimously affirmed his conviction September 29, 2000. The Court of Appeals denied leave to appeal on April 6, 2001. This federal habeas corpus petition followed.


  Spirles raises one claim for habeas relief: that the trial judge did not conduct a sufficiently searching inquiry into his ability to represent himself at trial. Spirles claims now that "certain facts" about his "mental, emotional and educational background" should have been developed at the January 22nd hearing. Petitioner's Memorandum of Law, Docket ("Dkt") #10 at 2. Page 3

  Under the Sixth Amendment, the accused in all criminal prosecutions is guaranteed "the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend. VI. Each defendant is also afforded the correlative right to dispense with legal assistance and represent himself. See Faretta v. California, 422 U.S. 806, 818-34 (1975); accord, e.g., Torres v. United States, 140 F.3d 392, 401 (2d Cir. 1998). Because a defendant who decides to act pro se abandons the traditional benefits associated with professional legal representation, the district court must ensure that the accused makes his decision "`knowingly and intelligently.'" Torres, 140 F.3d at 401 (quoting Faretta, 422 U.S. at 835). When a defendant knowingly, voluntarily, and unequivocally elects to proceed pro se, however, a court is bound by the Constitution to honor that election, regardless of how "suicidal" it may appear to be. Johnstone v. Kelly, 633 F. Supp. 1245, 1248 (S.D.N.Y.), rev'd on other grounds, 808 F.2d 214 (2d Cir. 1986).

  Although there is no "talismanic procedure" to determine an effective waiver, see United States v. Tracy, 12 F.3d 1186, 1994 (2d Cir. 1993), the trial court should engage the defendant in an on-the-record colloquy to ensure that he fully comprehends the ramifications of his decision. See id. at 1192; see also Torres, 140 F.3d at 401. The judge should consider "`whether the defendant understood that he had a choice between proceeding pro se and with assigned counsel, whether he understood the advantages of having one trained in the law to represent him, and whether the defendant had the capacity to make an intelligent choice.'" United States v. Hurtado, 47 F.3d 577, 583 (2d Cir. 1995) (quoting United States v. Calabro, 467 F.2d 973, 985 (2d Cir. 1972) (internal quotation marks and citation omitted)). In other words, the court must be convinced that the accused was aware of the dangers associated with self-representation and that his decision to conduct his own defense was made "with eyes open." Faretta, 422 U.S. at 835. Page 4

  Although Spirles vigorously argued before the trial court that he should be allowed to proceed pro se, he now contends that the trial court erred in granting his request. The record reflects that Judge Smith carefully questioned Spirles about his education, background and familiarity with court proceedings. She also repeatedly warned him of the risk of proceeding pro se. There is no error here warranting habeas corpus relief.

  Spirles, who had eleven years of schooling but no GED, worked as a custodian two years prior to his arrest and had held down "odd jobs," such as plumbing, doing electrical work, and cleaning houses. January 22, 1997 Hearing Transcript ("1/22/97 Tr.") at 4. Asked what type of work he was qualified to do, Spirles replied, "Well, I'm qualified to do anything you [sic] set your mind to[.]" Id. at 5. When the court asked if he could "read, write and speak and understand the English language," Spirles replied, "[e]nough to comprehend." Id at 3. He testified that he was not suffering from, nor had he suffered from in the past, any mental or physical ...

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