Maceo Spates v. Harold Clarke

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 2:11-cv-00284-RAJ-TEM Copies to all parties and the district court. [999251898].. [13-6358]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-6358

MACEO SPATES,
Petitioner - Appellee,
v.
HAROLD W. CLARKE, Director, VA Dept. of Corrections,
Respondent - Appellant.

Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:11-cv-00284-RAJ-TEM)

Argued:

October 29, 2013

Decided:

December 4, 2013

Before TRAXLER, Chief Judge, and WILKINSON and FLOYD, Circuit
Judges.

Reversed by unpublished per curiam opinion.

ARGUED: Matthew P. Dullaghan, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellant.
Neal Lawrence
Walters, SCOTT KRONER, PLC, Charlottesville, Virginia, for
Appellee. ON BRIEF: Kenneth T. Cuccinelli, II, Attorney General
of Virginia, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA,
Richmond, Virginia, for Appellant.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Harold W. Clarke, as Director of the Virginia Department of
Corrections

(hereinafter

the

“Commonwealth”),

appeals

the

district court’s decision granting Maceo Ali Spates’s petition
for a writ of habeas corpus filed under 28 U.S.C. § 2254, on the
ground that Spates did not knowingly and intelligently waive his
Sixth Amendment right to counsel.

Because the Virginia court’s

rejection of Spates’s constitutional claim was neither contrary
to

nor

an

unreasonable

application

of

clearly

established

federal law, as determined by the United States Supreme Court,
we reverse the district court’s decision and deny habeas relief. 1
I.
A.
In October 2005, Spates was arrested and ultimately charged
in the Commonwealth of Virginia with abduction, see Va. Code
§ 18.2-47;

rape,

see

Va.

Code

§ 18.2-61;

unlawful

wounding

during the commission of a felony, see Va. Code § 18.2-53; petit
larceny, see Va. Code § 18.2-96; armed statutory burglary, see
Va. Code § 18.2-90; and entering private property while wearing
a

mask,

see

Va.

appointed counsel.

Code

§

18.2-422.

He

was

provided

court-

Due to the unavailability of witnesses, the

1

The district court previously granted the Commonwealth’s
motion for a stay pending appeal.

2

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was

Spates

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continued

on

thereafter

at

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least

requested

two

two

occasions

to

additional

June

2006.

continuances,

resulting in the scheduling of what was to be a non-jury trial
for

December

however,

5,

2006.

Spates

The

demanded

day
a

before

jury

the

trial,

scheduled
forcing

trial,
another

continuance until February 12, 2007, in order to empanel a jury.
On February 12, 2007, with the jury and witnesses present,
Spates

appeared

discharge

and

counsel

asserted

and

his

represent

California, 422 U.S. 806 (1975).

constitutional

himself.

See

right

to

Faretta

v.

Spates’s counsel also appeared

and moved to withdraw from representation in accordance with her
client’s wishes.
consult

further

pressed

his

Following a brief recess to allow Spates to
with

motion

counsel

to

regarding

proceed

pro

acting as standby counsel instead.

se

his
with

decision,
appointed

Spates
counsel

The trial judge granted the

motions and, reluctantly, another continuance to allow Spates to
prepare for trial.

A pre-trial motions hearing was set for

April 23, 2007, and the jury trial for May 7, 2007.
On April 23, 2007, Spates appeared as scheduled.

At that

time, a written “Waiver of Right to be Represented by a Lawyer”
(the “Waiver”) was executed by Spates and certified by the trial
judge.

J.A. 24.

Among other things, Spates confirmed that he

had “been advised by [the] judge . . . of the nature of the
charges in the cases pending against [him] and the potential
3

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punishment

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for

the

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offenses,”

and

that

he

“underst[oo]d

the

nature of these charges and the potential punishment for them if
[he was] found guilty.”

J.A. 24.

Spates further represented

that he understood “the manner in which a lawyer can be of
assistance” and that “in proceeding without a lawyer, [he] may
be confronted with complicated legal issues.”

J.A. 24.

Spates

confirmed his election to waive counsel as follows:
Understanding my rights to be represented by a
lawyer as described above and further understanding
the nature of the case and the potential punishment if
I am found to be guilty, I waive all of my rights to
be represented by a lawyer in these cases, with the
further understanding that the cases will be tried
without a lawyer either being hired by me or being
appointed by the judge for me.
I waive these rights
of my own choice, voluntarily, of my own free will,
without any threats, promises, force or coercion.
J.A. 24.

The trial judge also signed the Waiver, certifying

that “[u]pon oral examination, [the court] finds that [Spates],
having been advised of the rights and matters stated above and
having

understood

these

rights

and

matters,

thereafter

has

knowingly, voluntarily and intelligently waived his rights to be
represented by a lawyer.”

J.A. 24.

On May 7, 2007, the case was called for trial as scheduled,
but

before

a

different

standby counsel.
and

ready

to

trial

judge.

Spates

appeared

with

The witnesses and the jury were again present

proceed.

At

the

inception

of

the

proceeding,

however, Spates claimed to have recently “found and retained

4

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counsel” who “was supposed to show up” but was not present.
J.A. 28.

Spates acknowledged that he had elected to proceed pro

se and that he had executed the Waiver, but he argued that he
did not understand the procedures and was not prepared.

Spates

also repudiated the written representations he had made in the
Waiver.

He denied that the previous trial judge had gone “over

all of the ramifications [of self-representation] with [him],”
as reflected in the Waiver, and claimed that he “didn’t know
that [he] was signing the waiver to represent [himself].”
51-52.
counsel

J.A.

The presiding trial judge informed Spates that new trial
would

be

allowed

to

take

over

representation

if

he

appeared, but denied Spates’s request for another continuance as
at least fifteen witnesses were present and prepared to proceed,
in addition to the jurors, attorneys, and staff.
ever

appeared,

and

the

trial

proceeded.

himself with standby counsel available.
the

trial,

Spates

was

convicted

of

four

No new counsel

Spates

represented

At the conclusion of
of

the

six

charges

against him, 2 and he was sentenced to a total of thirty-four
years imprisonment.

2

Spates was acquitted of the charges of armed statutory
burglary, see Va. Code § 18.2-90, and entering private property
while wearing a mask, see Va. Code § 18.2-422.

5

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B.
After trial, Spates’s standby counsel was reappointed to
represent him on direct appeal.

Spates claimed that the trial

court violated his Sixth Amendment right to counsel by denying
him counsel on the day of trial.

Spates also claimed that he

did not knowingly and intelligently waive his right to counsel
prior to the trial.

The Virginia Court of Appeals rejected both

claims and affirmed.

Noting that the right to counsel is not

without limitations, nor “a right subject to endless abuse by a
defendant,” J.A. 73-74 (internal quotation marks omitted), the
court first rejected Spates’s claim that the trial judge denied
him counsel, as follows:
Appellant affirmatively waived his right to
counsel as evinced by the waiver form he signed two
weeks before trial.
By waiting until the morning of
trial to announce he no longer wanted to represent
himself, appellant attempted to unreasonably and
unjustifiably delay the trial, which previously had
been continued.
We find no error with the trial
court’s denial of appellant’s continuance motion based
upon his initial waiver of his right to counsel
combined with his last minute attempt to delay the
trial.
J.A.

74

claim

(emphasis

that

he

did

added).
not

The

knowingly

court
and

also

rejected

intelligently

Spates’s
waive

right to counsel prior to trial, as follows:
At
a
February
12,
2007
hearing,
appellant
requested to relieve his court-appointed counsel and
proceed pro se. On April 23, 2007, appellant signed a
waiver form waiving his right to be represented by
counsel at trial.
The form indicates appellant was
advised of the charges against him, of the potential
6

his

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punishment
he
faced,
and
of
his
right
to
be
represented by counsel. Appellant waived these rights
“of [his] own choice, voluntarily, of [his] own free
will,
without
any
threats,
promises,
force
or
coercion.”
The judge also signed the form indicating
appellant was subject to oral examination and was
advised of his rights, understood his rights, and
“knowingly, voluntarily and intelligently waived his
rights to be represented by a lawyer.”
Accordingly,
the record includes ample evidence that appellant
freely and voluntarily waived his right to be
represented by counsel at trial.
J.A.

74-75.

The

Supreme

Court

of

Virginia

refused

Spates’s

petition for further appeal. 3
C.
Spates thereafter filed this petition for a writ of habeas
corpus

under

28

U.S.C.

§ 2254,

asserting

that

the

Virginia

court’s rejection of his claim that he did not knowingly and
intelligently
contrary

to

waive
or

an

his

right

to

unreasonable

counsel

prior

application

of

to

trial

Supreme

was

Court

precedent. 4

3

Although Spates did not timely file an appeal to the
Supreme Court of Virginia, he was later granted, through
Virginia post-conviction proceedings, leave to file a belated
appeal. Spates also filed a second petition for post-conviction
relief based on his Sixth Amendment claims, but the claims were
dismissed as procedurally barred because they had already been
decided on the merits in the direct appeal.
4

Spates did not pursue his claim that the trial judge
violated his Sixth Amendment right to counsel by refusing to
continue the trial and either reappoint counsel or wait for
retained counsel to enter an appearance.

7

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For reasons that remain unclear, the district court ordered
the

Commonwealth

2007,

hearing

to

have

prepared

a

transcript

and

submitted

from
for

the

February

inclusion

in

12,
the

federal habeas court record, but did not order preparation of
the

transcript

from

the

April

23,

2007,

hearing.

Neither

transcript had been prepared or submitted by either party to the
Virginia

Court

of

Appeals

in

connection

with

its

review

of

Spates’s constitutional claim, nor did the Virginia Court of
Appeals order production of either transcript on its own accord.
Relying

almost

exclusively

upon

the

February

12,

2007,

transcript and Spates’s attempt to revoke his waiver on May 7,
2007, the district court granted habeas relief and ordered that
Spates be retried or released from custody.

The court found

that the trial judge’s colloquy with Spates on February 12 was
constitutionally inadequate to ensure that Spates had waived his
right

to

Virginia

counsel
Court

unreasonable.

knowingly
of

Appeals

and

intelligently,

decision

to

the

and

that

the

contrary

was

This appeal followed.
II.
A.

Under 28 U.S.C. § 2254(d), as revised by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”), our review of
the Virginia court’s decision rejecting Spates’s Sixth Amendment
waiver claim is highly deferential.
8

Where, as here, a federal

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habeas petitioner’s constitutional claim has been “adjudicated
on the merits in State court proceedings,” we may not grant
relief

unless

decision

that

the

state

court’s

was

contrary

adjudication
or

to,

“resulted
an

involved

in

a

unreasonable

application of, clearly established Federal law, as determined
by

the

Supreme

Court

of

the

United

States,”

28

U.S.C.

§

2254(d)(1), or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented

in

the

State

court

proceeding,”

28

U.S.C.

§ 2254(d)(2); see also Harrington v. Richter, 131 S. Ct. 770,
785

(2011).

court’s

We

factual

must

presume

findings,

convincing evidence.

the

correctness

unless

rebutted

of
by

the

state

clear

and

See 28 U.S.C. § 2254(e)(1).

“The question under AEDPA is not whether a federal court
believes

the

state

court’s

determination

was

incorrect

but

whether that determination was unreasonable – a substantially
higher

threshold.”

(2007);

see

also

Schriro
Harrington,

v.

Landrigan,

131

S.

Ct.

550
at

U.S.

785.

465,
“A

473

state

court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.”

Harrington, 131

S. Ct. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652, 664
(2004)).

9

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B.
The

Sixth

Amendment

guarantees

criminal

defendants

the

assistance of counsel during all critical stages of the criminal
justice

process,

proceed

without

as

well

the

when

counsel

as

[the

intelligently elects to do so.”

implied

inverse

“to

voluntarily

defendant]

right

and

Faretta, 422 U.S. at 807.

The

“defendant need not himself have the skill and experience of a
lawyer in order competently and intelligently to choose selfrepresentation.”

Id. at 835.

Nonetheless, “he should be made

aware of the dangers and disadvantages of self-representation,
so that the record will establish that he knows what he is doing
and his choice is made with eyes open.”

Id. at 835 (internal

quotation marks omitted).
The

Supreme

Court,

however,

has

never

“prescribed

any

formula or script to be read to a defendant who states that he
elects to proceed without counsel.”
88 (2004).

Iowa v. Tovar, 541 U.S. 77,

Rather, “[t]he information a defendant must possess

in order to make an intelligent election . . . will depend on a
range

of

education

case-specific
or

factors,

sophistication,

the

including
complex

the

or

defendant’s

easily

grasped

nature of the charge, and the stage of the proceeding.”
see

also

Johnson

v.

Zerbst,

304

U.S.

458,

464

(1938)

Id.;
(“The

determination of whether there has been an intelligent waiver of
the

right

to

counsel

must

depend,
10

in

each

case,

upon

the

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particular
including

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facts
the

and

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circumstances

background,

surrounding

experience,

and

that

conduct

case,
of

the

accused.”); United States v. Gallop, 838 F.2d 105, 109 (4th Cir.
1988) (“While the Faretta Court recognized the absolute right of
a defendant to represent himself as long as that decision is
made knowingly, intelligently, and voluntarily, it did not lay
down

detailed

inquiry
whether

a

guidelines

trial
the

judge

concerning

is

required

defendant’s

intelligent.’”).

what
to

tests

or

lines

conduct

to

determine

decision

was

‘knowing

of

and

In the context of a guilty plea, for example,

the Court has held that “[t]he constitutional requirement is
satisfied when the trial court informs the accused of the nature
of

the

charges

against

him,

of

his

right

to

be

counseled

regarding his plea, and of the range of allowable punishments
attendant upon the entry of a guilty plea.”
81.

Tover, 541 U.S. at

“As to waiver of trial counsel,” the defendant “must be

warned specifically of the hazard ahead.”

Id. at 88-89; see

also Patterson v. Illinois, 487 U.S. 285, 298 (1988) (noting
that

because

attorney

of

plays

restrictions”

“the
at

are

a

enormous
criminal

imposed

“on

importance
trial,”
the

and
the

information

role
“most
that

that

an

rigorous
must

be

conveyed to the defendant . . . before permitting him to waive
his right to counsel.”).

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Finally,

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because

Faretta

Pg: 12 of 18

sets

forth

a

general

rule

governing such waivers of counsel, we must remain particularly
mindful of the leeway state courts have in applying the Faretta
rule.
greater

“‘[T]he more general the rule’ at issue – and thus the
the

potential

for

reasoned

disagreement

among

fair-

minded judges – ‘the more leeway state courts have in reaching
outcomes in case-by-case determinations.’”

Renico v. Lett, 559

U.S. 766, 776 (2010) (alteration omitted) (quoting Yarborough,
541 U.S. at 664); see also Harrington, 131 S. Ct. at 786.

For

similar reasons, a federal habeas court’s reliance upon circuit
court precedent interpreting or expanding such a general Supreme
Court rules is severely constrained.

See Marshall v. Rodgers,

133 S. Ct. 1446, 1450 (2013).
Although an appellate panel may, in accordance with
its usual law-of-the-circuit procedures, look to
circuit precedent to ascertain whether it has already
held that the particular point in issue is clearly
established by Supreme Court precedent, it may not
canvass circuit decisions to determine whether a
particular rule of law is so widely accepted among the
Federal Circuits that it would, if presented to this
Court, be accepted as correct.
Id. at 1450-51 (citations omitted); see also Parker v. Matthews,
132 S. Ct. 2148, 2155-56 (2012) (“[C]ircuit precedent does not
constitute ‘clearly established Federal law, as determined by
the Supreme Court,” and “therefore cannot form the basis for
habeas relief under AEDPA.”).

We are not at liberty to upset a

state court adjudication on a constitutional claim based upon
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requirements that we might recommend to or even impose upon our
own district courts, so long as the state court’s application of
the

general

rule

was

a

reasonable

one

in

light

of

the

controlling Supreme Court mandate.
Applying these principles to the case before us, we have no
trouble

concluding

adjudication
neither

of

contrary

that

Spates’s
to

nor

the
Sixth
an

Virginia
Amendment

unreasonable

Court

of

waiver

Appeals’
claim

application

of

was
the

controlling Supreme Court precedent, and that the district court
erred in relying upon circuit precedent to conclude otherwise. 5
5

We note the Commonwealth’s objection to the district
court’s decision to supplement the record on federal habeas
review with a transcript that was not submitted to the Virginia
court for its consideration on appeal and, in light of the
Supreme Court’s decision in Cullen v. Pinholster, 131 S. Ct.
1388 (2011), we share the Commonwealth’s concern.
As Spates
points out, Cullen involved mitigation evidence that was first
created in a federal evidentiary hearing, whereas the February
12 transcript could have been (but was not) submitted to the
Virginia Court of Appeals.
Nevertheless, the district court’s
consideration of the February 12 transcript did in fact result
in precisely what AEDPA seeks to avoid -- a “[f]ederal court[]
sitting in habeas [operating as] an alternative forum for trying
facts and issues which a prisoner made insufficient effort to
pursue in state proceedings.”
Id. at 1401.
The district
court’s sua sponte decision to reach for evidence not submitted
to it or to the last state court that considered the matter,
although not as extreme as the situation in Cullen, thus seems
at least inconsistent with the spirit of Cullen and the
deference we owe to the procedural rules and substantive
judgments of state courts.
In the end, however, it is
unnecessary for us to resolve this dispute in the Commonwealth’s
favor because, even considering the February 12 transcript, it
is clear that Spates’s Sixth Amendment claim fails under AEDPA,
and that the district court erred in concluding otherwise.

13

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In

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Faretta,

the

Supreme

Pg: 14 of 18

Court,

in

concluding

that

the

petitioner was sufficiently aware of the consequences of his
choice,

pointed

to

several

case-specific

facts

parallel many of those in the instant case.

that

actually

Specifically, the

Court noted as follows:
[W]eeks
before
trial,
Faretta
clearly
and
unequivocally declared to the trial judge that he
wanted to represent himself and did not want counsel.
The record affirmatively shows that Faretta was
literate, competent, and understanding, and that he
was voluntarily exercising his informed free will.
The trial judge had warned Faretta that he thought it
was a mistake not to accept the assistance of counsel,
and that Faretta would be required to follow all the
“ground rules” of trial procedure.
Faretta, 422 U.S. at 835-36.

In light of these findings, the

Court additionally noted the lack of any “need [to] assess[] how
well

or

poorly

Faretta

had

mastered

the

intricacies

hearsay rule and the California code provisions . . . .
technical

legal

assessment

of

himself.”

knowledge,
knowing

such,

exercise

was
of

not
the

relevant

the

For his

Id.

his

as

of

right

to

to

an

defend

Here, Spates clearly and unequivocally represented to the
trial judge on February 12 that he wanted to proceed pro se.
See J.A. 140 (“I want to represent myself, which is my right.”);
J.A.

143

(“I

prepared”).

want

to

represent

myself,

but

I

want

to

be

The trial judge warned Spates that the case would

involve “a jury trial [with] a lot of legal issues and legal

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points that lawyers go to law school and gain experience in to
learn,” J.A. 129, and that his choice to represent himself was
“probably the most unwise thing that he could do,” J.A. 137.
Spates was informed that he would “be required to know when to
make an objection, [and] the basis of the objection,” that he
would

have

everything

“to
that

pick
the

the
lawyers

jury,”

and

know,”

would

J.A.

“need

139-40,

to

and

know

he

was

warned that he would not “be given any extra slack in this,”
J.A. 140.

Although Spates pushed mightily (and successfully)

for a continuance at that time, Spates never expressed a desire
to retain substitute counsel until May 7, 2007, the scheduled
date for trial, when he again sought to force delay by revoking
his

waiver

and

asking

for

a

continuance.

Although

Spates

claimed at that time that he did not understand the procedure
and

could

not

effectively

represent

himself,

“his

technical

legal knowledge . . . was not relevant to an assessment of his
knowing exercise of the right to defend himself,” Faretta, 422
U.S. at 836, either when he invoked that right on February 12,
or when he confirmed the waiver on April 23.

The district court

erred in ruling otherwise.
As the district court observed, the trial judge did not
address

Spate’s

February 12.
an

assessment

education

or

background

on

the

record

on

However, Faretta imposes no requirement that such
be

discussed

on
15

the

record,

and

the

record

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otherwise fully supports the Virginia court’s conclusion that
Spates was “literate, competent, and understanding.”
835.

Id. at

The trial judge had ample opportunity to observe Spates

during the colloquy on February 12.

Moreover, Spates’s comments

reveal that he was fully capable of grasping the issues related
to

self-representation.

There

is

also

no

indication

that

Spates’s appointed counsel believed that he was incapable of
representing

himself

or

demands

dangers

of

and

that

Spates

proceeding

did

without

not

understand

counsel.

On

the
the

contrary, counsel acknowledged Spates’s right to do so, conveyed
the differences of opinion that led to the demand, and moved to
withdraw

as

counsel

of

record

and

be

appointed

as

standby

counsel instead.
The

transcript

from

the

May

7

proceeding

also

confirms

that, while Spates may have regretted his earlier choice, he was
fully

capable

waived it.

of

understanding

his

right

to

counsel

when

he

The Virginia court viewed Spates’s efforts that day

as an “attempt[] to unreasonably and unjustifiably delay the
trial,

which

previously

had

been

continued.”

J.A.

74;

see

Faretta, 422 U.S. at 834 n.46 (“The right of self-representation
is not a license to abuse the dignity of the courtroom.

Neither

is it a license not to comply with relevant rules of procedural
and substantive law.”).

That determination is fully supported

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by the record, and the district court erred in substituting its
contrary findings for those of the state court.
Pointing primarily to the February 12 transcript, Spates
argues and the district court concluded that the trial court’s
Faretta inquiry was constitutionally insufficient.
not the end of the story.

But that is

Spates clearly represented in the

April 23 Waiver that he had been informed of the charges against
him and the potential punishments he faced if convicted, and he
was

again

warned

legal issues.

that

he

may

be

confronted

with

complicated

The trial judge certified that she conducted an

oral examination of Spates, that he had been advised him of the
charges, punishments, and rights set forth therein, and found
that Spates “knowingly, voluntarily and intelligently waived his
rights

to

be

represented

by

a

6

lawyer.”

J.A.

24. 6

As

the

We can summarily dispose of Spates’s argument that the
trial court “believed it was putting the waiver issue to rest
[on February 12] and [that] nothing further would remain to be
done regarding it,” Spates Brief at 26, as well as his
unsupported allegation that “all that took place on [April 23]
with respect to self-representation was that Spates signed the
waiver form,” Spates Brief at 29.
There is no evidence to
support these suppositions, nor any legal basis upon which we
could reject the Virginia court’s decision based upon them. See
Parke v. Raley, 506 U.S. 20, 29-30 (1992) (explaining that in
habeas corpus actions and other collateral challenges, “there is
no principle of law better settled, than that every act of a
court of competent jurisdiction shall be presumed to have been
rightly done, till the contrary appears”) (internal quotation
marks and alteration omitted); Johnson v. Zerbst, 304 U.S. 458,
468 (1938) (“When collaterally attacked, the judgment of a court
carries with it a presumption of regularity. Where a defendant,
(Continued)
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Commonwealth points out, we are not at liberty to ignore the
April

23

Waiver

preceded

it,

findings

of

nor
fact

based
may
that

upon

we

the

make

February

credibility

contravene

those

12

colloquy

that

determinations

made

by

state

and

courts

which are supported by the record.
Here, there was more than sufficient evidence upon which
the Virginia Court of Appeals could reasonably conclude that
Spates was “made aware of the dangers and disadvantages of selfrepresentation,” “that he kn[ew] what he [was] doing,” and that
“his choice [was] made with eyes open.”

Faretta, 422 U.S. at

835 (internal quotation marks omitted).

And “[b]ecause it is

not clear that the [Virginia Court of Appeals] erred at all,
much less erred so transparently that no fairminded jurist could
agree with that court’s decision,”

Bobby v. Dixon, 132 S. Ct.

26, 27 (2011) (per curiam), we must reverse the district court’s
grant of habeas relief.
REVERSED

without counsel, acquiesces in a trial resulting in his
conviction and later seeks release by the extraordinary remedy
of habeas corpus, the burden of proof rests upon him to
establish that he did not competently and intelligently waive
his constitutional right to assistance of counsel.”) (footnote
omitted).

18