Love v. Clements et al

Filing 24

ORDER dismissing this action with prejudice, denying the issuance of a Certificate of Appealability, and denying in forma pauperis for the purpose of appeal, by Judge Lewis T. Babcock on 10/9/14. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Lewis T. Babcock

Civil Action No. 12-cv-02160-LTB
DARRICK LOVE,
Applicant,
v.
TOM CLEMENTS, Executive Director, CDOC, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before me on the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254, ECF No. 1, filed by Applicant Darrick Love. Applicant was acting
pro se at the time he initiated this action. Subsequent to Respondents answering the
Application on the merits, counsel filed a Reply to the Answer on behalf of Applicant.
Counsel’s signing and submitting the Reply is deemed an appearance by counsel on
Applicant’s behalf. See D.C.COLO.LCivR.11.1(a).
I. Background
In 1999, the People charged defendant with first degree murder
after deliberation, felony murder, and robbery. The charges arose out of a
shooting and robbery allegedly involving defendant and a co-defendant.
Following a trial in 2000, at which defendant was represented by attorneys
with the Public Defender’s Office, a jury convicted defendant of the lesser
nonincluded offense of theft, but acquitted him of felony murder and
robbery. The jury could not reach a verdict on the charge of first degree
murder after deliberation.
In 2001, defendant was retried for first degree murder after
deliberation. Again, he was represented by attorneys with the Public

Defender’s Office. A jury convicted him of the lesser included offense of
second degree murder. In September 2001, the district court sentenced
him to consecutive terms in prison of forty-eight years for second degree
murder and six years for theft.
Another division of this court reversed defendant’s conviction,
vacated his sentence, and remanded the case for a new trial on the
second degree murder charge, concluding that the district court had erred
in denying the jury’s request to view a trial transcript in the absence of
defendant and his counsel. People v. Love, (Colo. App. No. 01CA2194,
Mar. 25, 2004) (not published pursuant to C.A.R. 35(f)). The mandate
was issued on January 25, 2005, and received by the district court the
next day.
Following a third jury trial, at which defendant was again
represented by Public Defenders, defendant was convicted of second
degree murder and sentenced to forty-eight years in the custody of the
Department of Corrections.
People v. Love, No. 06CA1632, 1-2 (Colo. App. June 17, 2010).
The Colorado Court of Appeals (CCA) affirmed the conviction and sentence in
the second retrial, id., and the Colorado Supreme Court (CSC) denied Applicant’s
petition for certiorari review, see Love v. People, No. 2010SC564 (Colo. June 20, 2011).
Applicant then filed a Colo. R. Crim. P. 35(b) postconviction motion on October 24,
2011, that was denied on January 27, 2012. See Pre-Answer Resp. ECF No. 11-1,
Appx. A at 8-9. Applicant did not appeal the denial, but he did file a petition for relief
pursuant to C.A.R. 21 on March 22, 2012, id. at 8, that was summarily denied on May
31, 2012, Id., ECF No. 11-10, Appx. I.
In this action, Applicant asserts: (1)Right to Speedy Trial Violation; (2)Burden to
Request Counsel; (3) Right to Self-Representation Violation; and (4)Prosecutorial
Misconduct. On February 11, 2013, I found that Claims Two and Four are not separate
federal constitutional claims but are arguments in support of Claim One and ordered
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Respondents to file an Answer regarding the alleged violations of Applicant’s right to a
speedy trial and his right to self-representation. Respondents filed an Answer, ECF No.
21, on April 11, 2013. Applicant, through counsel, filed a Reply to the Answer on May 9,
2013. After reviewing the Application, the Answer, the Reply, and the state court
record, I conclude that the Application should be denied and the case dismissed with
prejudice for the following reasons.
II. Legal Standard
A. Pro Se Standard of Review
Applicant appeared pro se when he filed his Application. I, therefore, review the
Application liberally and hold the pleading to a less stringent standard than those
drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007)
(citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However,
a pro se litigant’s “conclusory allegations without supporting factual averments are
insufficient to state a claim on which relief can be based.” Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991). A court may not assume that an applicant can prove facts
that have not been alleged, or that a respondent has violated laws in ways that an
applicant has not alleged. Associated Gen. Contractors of Cal., Inc. v. Cal. State
Council of Carpenters, 459 U.S. 519, 526 (1983). An applicant’s pro se status does not
entitle him to an application of different rules. See Montoya v. Chao, 296 F.3d 952, 958
(10th Cir. 2002).

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B. 28 U.S.C. § 2254
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court,
unless the state court adjudication:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) 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).
Claims of legal error and mixed questions of law and fact are reviewed pursuant
to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir. 2003).
The threshold question pursuant to § 2254(d)(1) is whether Applicant seeks to apply a
rule of law that was clearly established by the Supreme Court at the time his conviction
became final. See Williams v. Taylor, 529 U.S. 362, 390 (2000). Clearly established
federal law “refers to the holdings, as opposed to the dicta, of [the Supreme] Court's
decisions as of the time of the relevant state-court decision.” Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice.
Although the legal rule at issue need not have had its genesis in the
closely-related or similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008).
If there is no clearly established federal law, that is the end of my inquiry
pursuant to § 2254(d)(1). See id. at 1018. If a clearly established rule of federal law is
implicated, I must determine whether the state court’s decision was contrary to or an
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unreasonable application of that clearly established rule of federal law. See Williams,
529 U.S. at 404-05.
A state-court decision is contrary to clearly established federal law if: (a)
“the state court applies a rule that contradicts the governing law set forth
in Supreme Court cases”; or (b) “the state court confronts a set of facts
that are materially indistinguishable from a decision of the Supreme Court
and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [ (10th Cir. 2006) ] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’ ”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of
clearly established federal law when it identifies the correct governing
legal rule from Supreme Court cases, but unreasonably applies it to the
facts. Id. at 407-08. Additionally, we have recognized that an
unreasonable application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle from
Supreme Court precedent to a new context where it should apply.
House, 527 F.3d at 1018.
My inquiry pursuant to the “unreasonable application” clause is an objective one.
See Williams, 529 U.S. at 409-10. “[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or incorrectly.
Rather that application must also be unreasonable.” Id. at 411. “[A] decision is
‘objectively unreasonable’ when most reasonable jurists exercising their independent
judgment would conclude the state court misapplied Supreme Court law.” Maynard,
468 F.3d at 671.

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In addition,
evaluating whether a rule application was unreasonable
requires considering the rule’s specificity. The more general
the rule, the more leeway courts have in reaching outcomes
in case-by-case determinations. It is not an unreasonable
application of clearly established Federal law for a state
court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.
Harrington v. Richter, 131 S. Ct. 770, 786, --- U.S. --- (Jan. 19, 2011) (internal quotation
marks and citation omitted). I “must determine what arguments or theories supported or
. . . could have supported[ ] the state court’s decision” and then “ask whether it is
possible fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. “Even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. (citation omitted). “Section 2254(d) reflects the view that habeas
corpus is a guard against extreme malfunctions in the state criminal justice systems, not
a substitute for ordinary error correction through appeal.” Id. (citation omitted).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671.
Furthermore,
[a]s a condition for obtaining habeas corpus relief from a
federal court, a state prisoner must show that the state
court’s ruling on the claim being presented in federal court
was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 131 S. Ct. at 786-87. Applicant bears the burden of proof under § 2254(d).
See Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
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Claims of factual error are reviewed pursuant to 28 U.S.C. § 2254(d)(2). See
Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002). Section 2254(d)(2)
allows a court to grant a writ of habeas corpus only if the state court decision was based
on an unreasonable determination of the facts in light of the evidence presented.
Pursuant to § 2254(e)(1), I must presume that the state court's factual determinations
are correct and Applicant bears the burden of rebutting the presumption by clear and
convincing evidence. “The standard is demanding but not insatiable . . . [because]
‘[d]eference does not by definition preclude relief.’ ” Miller-El v. Dretke, 545 U.S. 231,
240 (2005) (quoting Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)).
A claim, however, may be adjudicated on the merits in state court even in the
absence of a statement of reasons by the state court for rejecting the claim. Richter,
131 S. Ct. at 784. (“[D]etermining whether a state court’s decision resulted from an
unreasonable legal or factual conclusion does not require that there be an opinion from
the state court explaining the state court’s reasoning”). Furthermore, “[w]hen a federal
claim has been presented to a state court and the state court has denied relief, it may
be presumed that the state court adjudicated the claim on the merits in the absence of
any indication or state-law procedural principles to the contrary.” Id. at 784-85. Even
“[w]here a state court’s decision is unaccompanied by an explanation, the habeas
petitioner’s burden still must be met by showing there was no reasonable basis for the
state court to deny relief.” Id. at 784. Although Richter concerned a state-court order
that did not address any of the defendant’s claims, its presumption is applicable when a
state-court opinion addresses some but not all of those claims. Johnson v. Williams, —
U.S. —, 133 S. Ct. 1088, 1094-98 (2013).
7

In other words, I “owe deference to the state court's result, even if its reasoning is
not expressly stated.” Aycox v. Lytle, 196 F.3d 1174, 1177 (10th Cir. 1999). Therefore,
I “must uphold the state court’s summary decision unless [the court’s] independent
review of the record and pertinent federal law persuades [it] that [the] result contravenes
or unreasonably applies clearly established federal law, or is based on an unreasonable
determination of the facts in light of the evidence presented.” Id. at 1178. “[T]his
‘independent review’ should be distinguished from a full de novo review of the
petitioner’s claims.” Id.
Likewise, I apply the AEDPA deferential standard of review when a state court
adjudicates a federal issue relying solely on a state standard that is at least as favorable
to the petitioner as the federal standard. See Harris v. Poppell, 411 F.3d 1189, 1196
(10th Cir. 2005). If a claim was not adjudicated on the merits in state court, and if the
claim also is not procedurally barred, I must review the claim de novo and the
deferential standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193,
1196 (10th Cir. 2004).
III. Analysis
A. Right to Speedy Trial
In Claim One, Applicant asserts that the trial court exceeded it’s authority and
jurisdiction when it waived his speedy trial rights, even though he stated he did not want
to do so. Applicant further asserts, in Claim Two, that the court improperly found an
implied waiver of Applicant’s speedy trial rights in his second retrial. Finally, in Claim
Four, Applicant asserts that the delay in his trial was a result of prosecutorial bad faith

8

because the prosecution was not ready to proceed to trial even though they told the
court that they were.
The CCA concluded that Applicant had waived his speedy trial rights based on
the following proceedings in the trial court:
Defendant was not brought before a judge following the receipt of
the mandate until a hearing on July 11, 2005. At the hearing, defendant
filed a pro se motion to dismiss for violation of his right to a speedy trial.
The prosecutor stated:
[M]y understanding is the mandate came down quite some
time ago. I just happened to be on a state judicial last week
and noticed that it had come back some time ago. I was out
of the office. I asked [another prosecutor] in my office to get
this set as quickly as possible.
Following some discussion regarding the date of mandate and trial,
defendant stated:
[M]y issue is the sentence was vacated. I’ve been sitting in
a level four maximum security prison for approximately 167
days to date, and I get down here and I haven’t seen
counsel. I haven’t talked to counsel the whole time that I’ve
been waiting. I get down here and I’ve been told that I have
a trial date set for the 18th of July; and when I did talk to
counsel as of yesterday, I was asked if I would be willing to
waive my speedy trial, which would give the prosecution
more time to be prepared. They say that they’re ready, but I
feel that if they was [sic] ready, I should have been down
here. Now I’m forced and put in a position to waive my
speedy trial, or have a fair trial, and it’s my right to have a
fair trial and effective counsel. I shouldn’t be forced by due
process of law to have to barter one for the other.
The court responded:
You’re not. The statute says that you get a trial date within
six months of the date the mandate was received. You did.
....

9

So that gives you a choice -- three choices as I see it. You
can waive your speedy trial and I’ll appoint the Public
Defender to represent you and they’ll get a case worked up.
Secondly, I can appoint the Public Defender, they can go to
trial with you on Monday -- that would be ludicrous for both
of you -- or you can represent yourself, which would be
crazy.
....
Defendant: Well, I’m ready to go. I’m not going to waive my
speedy trial.
Court: You want . . . me to appoint the Public Defender or
do you want to represent yourself?
Defendant: Appoint the Public Defender.
Defense Counsel: Judge, we cannot be effective in one
week on a murder trial.
The court called a recess so that the two Public Defenders present
could review the file and determine whether they could prepare for trial
within one week. Following the recess, a Public Defender declared, “[W]e
cannot accept appointment for a trial on Monday.”
The court then stated to defendant, “Okay. Well, I guess you get to
go to trial by yourself then, Mr. Love.” Defendant replied, “Good, ‘cause
I’m not going to waive my speedy.” The court then discussed the
“dilemma” created by defendant’s desire to be represented by the Public
Defender and the speedy trial deadline.
A discussion ensued concerning the large number of witnesses in
the case, the difficulty in preparing for a murder trial, and the need to
preserve defendant’s right to effective assistance of counsel. During that
discussion, the court, without any objection by defendant, observed that
defendant “want[ed] the Public Defender to represent” him and that
defendant “does not wish to waive his right to counsel . . . .” The court
then concluded that defendant had implicitly waived his right to speedy
trial:
[T]here’s certainly no express waiver on the part of the
defendant; in fact, I think everyone acknowledged that the
defendant is as strongly as he possibly can telling me he
wants to go to trial within the current speedy trial limitations. I
understand that, but I also understand that sometimes the
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law puts one between rocks and hard places, and that’s
where we are right now.
This is an issue where balancing is required, and I have to
look at the balancing out of all of the various factors involved
in this case. I am, albeit somewhat reluctant to do so, but I
am going to appoint the Public Defender’s office. I’m going
to find that under the circumstances there is implied waiver
of speedy trial.
The court subsequently vacated the July 18, 2005 trial date and
reset the trial for a date more than six months after the mandate had been
received by the district court. Defendant timely moved for dismissal based
on the failure to provide him a speedy trial. The district court denied that
motion.
Defendant argues that because he clearly indicated that he was not
waiving his speedy trial right and unequivocally invoked his right to
represent himself, the court violated his statutory speedy trial right and the
murder charge must be dismissed. The record clearly shows that
defendant did not expressly waive his speedy trial right. But we conclude
he implicitly did so because he did not unequivocally waive his right to
counsel and invoke his right to represent himself.
....
We reject defendant’s suggestion that the People are responsible
for the delay here because they waited so long after the remand to set the
matter for trial. Though it is the state’s obligation to demonstrate
compliance with the speedy trial statute, see Marquez v. Dist. Court, 200
Colo. 55, 57-58, 613 P.2d 1302, 1303-04 (1980), the state did so here
because the trial date was set within the speedy trial period. Defendant
has not alleged, nor did he present any evidence, that the prosecutor
deliberately or in bad faith delayed setting the trial date as a last ” ’minute
ploy to circumvent the requirements of the speedy trial provisions . . . .’ ”
Arlege, 938 P.2d at 165 (quoting Hampton v. Dist. Court, 199 Colo. 104,
107-08, 605 P.2d 54, 57 (1980)).5 Rather it was defendant’s belated
request for a re-appointed counsel, leaving him unprepared for trial, that
caused the trial date to be pushed beyond the speedy trial period.
5

Defendant does contend that the prosecutor was not prepared to
go to trial on July 18, and engaged in misconduct warranting
dismissal by leading the court to believe that he was. But this
argument is rife with speculation, and therefore we reject it.

11

The law is clear that once a defendant has been advised of his right
to court-appointed counsel, it is the defendant’s burden to request such
counsel, and to do so by complying with certain requirements of statute
and rule. See § 21-1-103(1)(a), (3), C.R.S. 2009 (court shall appoint
counsel “if . . . [t]he defendant requests it and he complies with subsection
(3) of this section [relating to submission by the defendant of an
application form]”); CJD 04-04 § II.A (providing that a “defendant in a
criminal case . . . requesting court-appointed representation” must
complete a specific form applying for such counsel); see also Crim. P.
44(a) (court may appoint counsel “upon the defendant’s affidavit or sworn
testimony”); Alengi, 148 P.3d at 160-61; Allen v. People, 157 Colo. 582,
590-91, 404 P.2d 266, 271 (1965). Defendant twice complied with these
requirements before the remand: once to obtain appointment of trial
counsel and once to obtain appointment of appellate counsel. Following
remand, it remained defendant’s obligation to request appointed counsel
in accordance with the applicable requirements if he desired to be
represented by counsel at trial. That obligation did not somehow
evaporate because of the remand, nor did it depend on the setting of any
hearing by the prosecution or the court. Put another way, regardless of
whether or when a hearing was set after remand (and no authority
required any hearing before retrial), defendant was obligated to request a
court-appointed attorney if he wanted one; neither the prosecution nor the
court was required to take any action to determine if he again desired
court-appointed counsel. Defendant, however, knowing that his conviction
had been reversed and the charge against him remained pending, and
knowing how to go about requesting appointed counsel, waited almost six
months after remand to request appointed counsel. Contrary to the
dissent’s suggestion, that delay cannot under any reading of applicable
legal authority be attributed to the state.6
6

The dissent incorrectly asserts that we hold a defendant
must request counsel to preserve his speedy trial right. We
note defendant’s late request for appointed counsel to show
only that it was the late request (for which neither the court
nor the prosecution was responsible) that led to the resetting
of the trial date after the speedy trial deadline. We reiterate
that the court set the trial to begin within the speedy trial
period, and that the prosecution was not responsible for the
unpreparedness of the public defender.

Therefore, we conclude that the delay resulting in the setting of trial
beyond the speedy trial period is attributable to defendant. There was no
violation of his right to speedy trial.
People v. Love, No. 06CA1632, at 3-7 and 13-16.
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In the February 11, 2013 Order to Dismiss in Part and for Answer, I found that
Applicant (1) in the direct appeal of his second retrial relied on case law that discusses
the right to a speedy trial based on the federal constitutional requirements set forth in
Barker; (2) stated in the opening brief on appeal that his U.S. Constitutional rights were
violated; (3) appears to have been subject to presumptively prejudicial delay; and (4)
raised substantive arguments in the opening brief that address prejudice, presentation
of a speedy trial claim at trial, and who is to blame for the delay, ECF No. 17 at 6. For
these reasons, I determined that state courts were on notice of a federal constitutional
claim of a speedy trial rights violation, but they addressed the violation in terms of state
statutory law.
Under federal constitutional law, a defendant’s purported waiver of his speedy
trial right is not dispositive, but it is instead considered under the Barker balancing test
in determining whether a constitutional violation has occurred. See Barker v. Wingo,
407 U.S. 514, 528-29, 531-32 (1972). The CCA did not apply the Barker test to
Applicant’s claim on direct appeal of his conviction. Instead, the state appellate court
analyzed Applicant’s claim under the state speedy trial statute, § 18-1-405, C.R.S.
(2009). Because the CCA did not fully analyze Applicant’s claim under the federal
Constitution, this Court reviews the claim de novo. See Gipson, 376 F.3d at 1196. A
federal habeas court may uphold a conviction, even if a state court does not rely on
federal law, “so long as neither the reasoning nor the result of the state-court decision
contradicts [federal law].” Early v. Packer, 537 U.S. 3, 8 (2002).
The Sixth Amendment to the United States Constitution affords criminal
defendants the fundamental right to a speedy trial. U.S. Const. amend. VI. The
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fundamental right is imposed on the states by the Due Process Clause of the
Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 222-23 (1967).
Under clearly established federal law four factors must be balanced in assessing
whether a criminal defendant’s constitutional right to a speedy trial has been violated.
The factors are (1) the length of the delay; (2) the reason for the delay; (3) the extent to
which the defendant asserted his right to a speedy trial; and (4) any prejudice to the
defendant. See Barker v. Wingo, 407 U.S. 514, 530-32 (1972). “None of these factors,
taken by itself, is ‘either a necessary or sufficient condition to the finding of a deprivation
of the right of speedy trial. Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.’ ” Jackson v. Ray, 390
F.3d 1254, 1260-61 (10th Cir. 2004) (quoting Barker, 407 U.S. at 533).
The first Barker factor, the length of the delay, “actually is a double enquiry.”
Doggett v. United States, 505 U.S. 647, 651 (1992); Jackson, 390 F.3d at 1261. As a
threshold matter, I need not consider the other Barker factors unless the delay is
“presumptively prejudicial.” Barker, 407 U.S. at 530. “Depending on the nature of the
charges, the lower courts have generally found postaccusation delay ‘presumptively
prejudicial’ at least as it approaches one year.” Doggett, 505 U.S. at 652 n.1. If the
length of the delay is presumptively prejudicial, I “must then consider, as one factor
among several, the extent to which the delay stretches beyond the bare minimum
needed to trigger judicial examination of the claim.” Id. at 652 (citing Barker, 407 U.S.
at 533-34.
For purposes of the constitutional analysis, the speedy trial time period
commences when the defendant is first arrested or charged with committing a federal
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offense and ends when his jury trial begins. See United States v. Batie, 433 F.3d 1287,
1290 (10th Cir. 2006) (stating that the speedy trial right attaches at the earlier of either
arrest or indictment). The length of delay is measured from the time at which the
speedy trial right attaches. See United States v. Marion, 404 U.S. 307, 320-21 (1971).
The CCA’s mandate reversing and remanding issued on January 25, 2005, and was
docketed on January 26, 2005. See Case No. 1999CR4911, Register of Action (ROA)
at 15 and 525. The speedy trial right attached on January 26, 2005, when the mandate
was received by the trial court. See Colo. Rev. Stat. § 18-1-405(2). The trial
commenced on April 19, 2006, when jury selection was conducted. Trial Tr., Apr. 19,
2006, at 34 (188) (The number in parenthesis identifies the sequence in the 1441 pages
of transcripts.) The delay is just shy of fifteen months, which I find to be presumptively
prejudicial.
I then consider “the extent to which the delay stretches beyond the bare
minimum needed to trigger judicial examination of the claim.” United States v. Seltzer,
595 F.3d 1170, 1176 (10th Cir. 2010) (quoting Doggett v. United States, 505 U.S. at
652) (internal quotation marks omitted), which in this case is three months.
The delay is not a lengthy period. Applicant argues that, given this was the
second retrial regarding the same first degree murder charges and criminal episode, the
charges were not so complex or sophisticated to justify the delay. However, the trial
record for the second retrial indicates that the trial was six days long, involved at least
seventeen witnesses, and introduced more than 130 exhibits. Trial Tr. Apr. 19, 20, 21,
24, 25, and 26, 2006. The case, therefore, was more complex than Applicant’s
characterization. I find that while this length of delay is considered presumptively
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prejudicial and may weigh in favor of Applicant for that reason, the delay is just beyond
a year. Given the number of witnesses and exhibits and the six days needed to present
the case to the jury, the length of the delay does not weigh heavily in Applicant’s favor.
The second Barker factor is the reason for the delay. “The Supreme Court
places the burden on the state to provide an inculpable explanation for delays in speedy
trial claims.” Jackson, 390 F.3d at 1261. “[D]ifferent weights should be assigned to
different reasons.” Barker, 407 U.S. at 531. A deliberate attempt to delay a trial is
weighted heavily, whereas a missing witness serves as a justified appropriate delay. Id.
The reason for a delay weighs against the government in proportion to the degree to
which the government caused the delay. Batie 433 F.3d at 1291
Applicant asserts the reasons for delay were that the prosecution was not
prepared for trial even though they stated that they were ready. Applicant, through
counsel, also contends that his charges were not so complex or sophisticated to justify
a delay by the state or the trial court, Reply, ECF No. 23, at 5, and that under the
Colorado speedy trial rule he clearly had to be brought to trial within six months of the
“date of entry of a plea,” id. at 6. Applicant concludes that his failure to complete the
form for court-appointed counsel did not toll the speedy trial period and Respondents
fail to identify any statutory exception to the six-month speedy trial rule, which tolled the
time Applicant could be timely brought to trial. Id.
The CCA found that Applicant had not complied with the Colo. Rev. Stat. § 21-1103(1) (2009), and it remained his responsibility to request appointment of counsel in
accordance with the applicable requirements if he desired to be represented by counsel.
Love, No. 06CA1632 at 14-15. Further, the CCA found that it was not the court or the
16

prosecution’s responsibility to determine if Applicant again desired court-appointed
counsel. Id. at 15. The CCA concluded that Applicant was given a trial date prior to the
speedy trial and any delay is attributed to him.
Applicant’s delay claim against the prosecution is conclusory and vague. He
does not state how the prosecution was not prepared for a retrial or why they would
deliberately delay setting a trial date just to violate his speedy trial rights. In the opening
brief on appeal, Applicant, however, identifies events he believes indicate the
prosecution was not prepared to proceed with the trial on July 18, 2005. Pre-Answer
Resp., ECF No. 11-2, Ex. B, at 30-35.
Applicant asserts in the opening brief that D.A. Pellow, who was one of two
prosecutors in Applicant’s first trial in October 2000 and retrial in May 2001, see id.,
ECF No. 11-1, Ex. A, ROA at 21 and 28, appeared at the July 11, 2005 hearing and
represented that the prosecution was ready to proceed with the second retrial on July
18, 2005, Id. Ex. B at 30. Applicant contends Mr. Pellow could not have been ready to
proceed because D.A. Jackson indicated to defense counsel that no trial preparation
took place prior to Mr. Jackson assuming the case. Id. In support of his lack of
preparedness claim, Applicant also argued on direct appeal that at the time of the July
11, 2005 hearing Mr. Pellow had not issued subpoenas for the prosecution witnesses
and had failed to arrange with the federal prison for an appearance of a key witness
who at the time was in federal custody, and D.A. Jackson, long after the speedy trial
deadline had run in January 2006, conceded he still had not located an eye witness
from the previous trials. Id. at 32. Applicant also argued on direct appeal that a
Spanish interpreter for two witnesses had to be obtained and the new and more
17

sophisticated DNA analysis needed to be prepared and could not have been done
between July 11 and 18, 2005. Id. at 34.
Applicant’s claims are speculative. First, the DNA analysis was requested by two
attorneys, including Mr. Jackson, who were assigned to Applicant’s case after the trial
date was set. Mr. Jackson stated during the pretrial hearing on January 3, 2006, that
the request and the provision of the new analysis had nothing to do with Mr. Pellow’s
claim of readiness, because the prosecution would have proceeded to trial without the
evidence, as was done in the original trial and the first retrial. Jan. 3, 2006 Hr’g Tr. at 810 (79-81). The trial court established that the results of the new DNA analysis did not
change the state of the evidentiary record from the prior trial and the “evidence
previously at trial was sufficient to indicate that the blood on Mr. Love’s sweatshirt was
attributable to some varying degree to the victim in this case.” Id. at 12 (83). The new
findings indicated that the blood of the victim also was found on Mr. Grissom’s clothing,
Applicant’s codefendant, which even if not exculpatory is something that the defense
agreed they would want to have the “lead” to use if they had wanted. Id. at 13 (84).
Applicant’s claim that certain witnesses were unavailable and no subpoenas had
been issued also is speculative. During the pretrial hearing on January 3, 2006,
defense counsel renewed a motion to dismiss based on speedy trial grounds and stated
that certain witnesses were not available, including Mr. Sudduth, a federal prisoner,
Mssrs. Cramer and Peak, police officers, and Ms. Childress, an eyewitness. Id. at 1921 (90-92). Nonetheless, as pointed out by the prosecution at the January 3, 2006
hearing, defense counsel may not infer that because a witness is not available for the
January 4, 2006 trial he or she also would not have been available for a July 18, 2005
18

trial. Id. at 25 (96). There also is no documentation provided by defense counsel at the
January 3 hearing that Mr. Pellow, at the time of the July 11, hearing, had not issued
subpoenas, or was unable to obtain a Spanish interpreter within seven days so that the
prosecution could proceed with a trial by July 18, 2005.
A review of the July 11 and 28, and August 29, 2005 hearings does not indicate
Mr. Pellow deliberately waited to set Applicant’s trial within a week of the speedy trial
deadline. Mr. Pellow’s explanation, see July 7, 2004 Hr’g Tr. at 3 (21), that the setting
of the trial was an oversight is no more than negligence on the part of the district
attorney’s office. There is nothing to be gained by Mr. Pellow in delaying the trial, and
based on my review of the reasons stated by Applicant that Mr. Pellow was not
prepared for trial there is no basis for finding a deliberate delay by Mr. Pellow based on
any alleged unpreparedness.
It, however, is disconcerting that only a week prior to the July 11, 2005 hearing
the prosecutor “just happened” to see the mandate had come back “sometime ago” and
requested someone in his office to have a trial set. Trial Tr., July 11, 2005, at 2.
Furthermore, even though the trial date was set within the speedy trial deadline, there
are certain discrepancies in the CCA’s findings that do not support a finding that
Applicant was totally responsible for the delay in setting a trial.
The CCA’s reliance on Colo. Rev. Stat. § 21-1-103 is somewhat compromised by
certain docket entries, or the lack thereof, in the criminal case and the failure of the
statute to address cases on remand in which indigency has been established and
counsel appointed. Nothing is entered in the register of action, or flat file, in this case
that indicates Applicant requested counsel in his first retrial. Also, the request for
19

appointment of counsel in Applicant’s first direct appeal was entered by counsel. ROA,
Flat File at 271 (318). Finally, a letter, id. at ROA, Flat File, Pet. C.A.R. 21, Appx. D.
(731), from the public defender, who represented Applicant in his first appeal, to
Applicant explained the status of Applicant’s case and stated that counsel would be
assigned to the case upon remand. Based on these findings, I do not agree with the
CCA’s argument that Applicant is wholly responsible for the over five month delay in not
seeking appointment of counsel.
However, based on the following findings, this error did not have a substantial
and injurious effect or influence in determining the jury’s verdict, see Brecht v.
Abrahamson, 507 U.S. 619, 631-39 (1993), and is harmless. Furthermore, the public
has a interest in trying people accused of crimes rather than granting immunization
based on legal error. Barker, 407 U.S. at 522 n.16.
Applicant also is a competent pro se litigator. In Criminal Case No. 99CR4911,
he was able to file the following pro se: Flat File at 690-710 (sequential number on CD;
no number provided on document) (C.A.R. 21 petition March 16,2012); 508-10
(sequential number on CD) (000323-25) (number used by the state court that appears
on the document in state court flat filed) (renewed motion to dismiss July 28, 2005);
501-02 (000378-79) (motion for immediate release July 28, 2005); 476-78 (000353-56)
(renewed motion to dismiss July 11, 2005); 471-73 (000348-50) (renewed motion to
dismiss July 28, 2005); 427-32 (000414-19) (petition for rule to show cause); 174-75
(000100-01) (motion for discovery Apr. 24, 2000). It, therefore, is unreasonable that
Applicant did not inquire about the assignment of counsel in this case prior to when he
filed the motion to dismiss.
20

The fact remains, however, that the trial court and the prosecution were
responsible for setting a trial date during the time from January 26, 2005, until at the
latest July 11, 2005. To the extent this delay may be responsible for any of the fifteen
month delay, it is caused by the prosecution and trial court.
As for the time between January 3, 2006, when the second retrial originally was
scheduled, and April 19, 2006, when the trial commenced, the delay is attributed to
defense counsel, based on his asserted need to locate witnesses. At the pretrial
conference on January 4, 2006, the day the trial was rescheduled from January 3, 2006,
defense counsel requested a continuance. Trial Tr., Jan. 4, 2006, at 4 (117). A
colloquy between the trial court and Applicant took place during which the court
determined that Applicant believed a continuance was necessary, and in his best
interest, to obtain additional witnesses, and to do so would require a waiver of his right
to a speedy trial. Id. at 15-19 (128-132).
Reasons for the delay in Applicant’s trial are not solely attributed to the state for
speedy trial purposes. The continuance for trial and waiver of speedy trial agreed to by
defense counsel was to ensure that Applicant received a fair and impartial trial. There
also is no basis for finding that the prosecution and trial court deliberately delayed the
setting of the second retrial. The delay appears to be no more than a negligent act, and
probably no more a negligent act than Applicant’s failure to inquire about the
assignment of counsel for his second retrial. The reason for the delay, therefore, is split
between the trial court and prosecution and Applicant. Again, this factor does not weigh
heavily in favor of Applicant.

21

The third Barker factor is the extent to which the defendant asserted his right to a
speedy trial. A speedy trial right assertion “is given strong weight in deciding whether
there has been a speedy trial violation. Seltzer, 595 F.3d at 1179

“[T]he sooner a

criminal defendant raises the speedy trial issue, the more weight this factor lends to his
claim.” Jackson, 390 F.3d at 1263.
Applicant first asserted his speedy trial claim July 11, 2005. However,
Applicant’s failure to inquire regarding the assignment of counsel cuts against his
outward assertions of a speedy trial violation. As stated above, Applicant is a capable
pro se litigant who submitted several pro se filings. He also was very well aware of
speedy trial issues, as he dealt with speedy trial issues in this state criminal proceeding,
ECF No. 11-1 at 27 and 28; and he knew that he is entitled to counsel in his second
retrial, as he was told that counsel would be appointed in the letter dated February 5,
2005. Yet, Applicant waited until July 11, 2005, a week before the speedy trial deadline
ran to question why counsel had not been appointed. Applicant’s actions are somewhat
suspect. Therefore, I find that even though this factor may weigh in favor of Applicant, it
is not a heavily weighted factor.
The fourth Barker factor is whether the defendant suffered any prejudice. This
factor can be met with or without a particularized showing of prejudice depending on the
length of the delay. See Jackson, 390 F.3d at 1263-64. “In cases of extreme delay,
criminal defendants need not present specific evidence of prejudice. Instead, they may
rely on the presumption of prejudice created by the delay.” Id. at 1263. However, there
is no clearly established federal law that would relieve a defendant of making a

22

particularized showing of prejudice when the delay is less than six years. See id. at
1263-64.
“The individual claiming the Sixth Amendment violation has the burden of
showing prejudice.” Seltzer, 595 F.3d at 1179 (quotation omitted). Prejudice is
presumed where there is extreme delay, but where the delay is not extreme a defendant
must make a particularized showing of prejudice. See United States v. Tombs, 574
F.3d 1262, 1275 (10th Cir. 2009); Seltzer, 595 F.3d at 1180 n.3 (generally a six-year
delay before allowing the delay itself to constitute prejudice). In weighing this factor, a
court should keep in mind the policies underlying the speedy trial right as follows: (1)
prevent oppressive pretrial incarceration; (2) minimize the accused’s anxiety and
concern; and (3) limit the possibility that the passage of time will impair the accused's
ability to mount a defense. Id. The latter concern is the most serious one of the three.
Id.
The delay in this case is not long enough to relieve Applicant of his obligation to
make a particularized showing of prejudice. In an attempt to show prejudice Applicant
claims he was held 167 days in administrative segregation, did not hear from the
prosecution regarding a trial date until fifteen days before the expiration of the speedy
trial deadline, and then had to choose between his right to a speedy trial and an
unimpaired defense. Reply, ECF No. 23, at 9-10.
“[G]eneralized and conclusory references to the anxiety and distress . . . [of]
incarceration are not sufficient to demonstrate particularized prejudice.” United States
v. Larson, 627 F.3d 1198, 1210 (10th Cir. 2010). Applicant’s claims regarding his time
in administrative segregation and need to choose between a right to a speedy trial and
23

an unimpaired defense are vague accusations. Applicant provides no detail of how the
pretrial incarceration was oppressive or why he was so anxious about deciding whether
or not to waive his right to a speedy trial. Finally, nothing Applicant states in the
Application, or counsel asserts in the Reply, identifies how the pretrial delay impaired
Applicant’s ability to mount a defense. Applicant, therefore, has failed to identify
anything material that was compromised by the pretrial delay.
Even though the CCA did not specifically apply federal law to the facts of the
case, the CCA’s decision must be upheld unless an independent review of the record
“contravenes or unreasonably applies clearly established federal law, or is based on an
unreasonable determination of the facts in light of the evidence presented.” Aycox, 196
F.3d at 1178. I find no misapplication of federal law or that the CCA’s conclusion was
unreasonable.
The delay of trial was beyond the presumptively prejudicial twelve month period.
The delay, however, was only three months beyond the bare minimum and the reasons
for the delay do not weight heavily in Applicant’s favor. Finally, Applicant fails to
demonstrate a particular prejudice due to the delay. The balancing of the Barker factors
demonstrates Applicant’s Sixth Amendment right to a speedy trial was not violated. The
right to speedy trial claim, therefore, will be dismissed.
B. Right to Self-Representation
Applicant asserts that he was denied his right to self-representation when he
waived his right to counsel and invoked his right to represent himself. Applicant
contends that he explicitly asserted his right to self-representation in a timely manner,
even before a public defender was appointed. Application at 15. Applicant also asserts
24

that the trial judge did not make a determination that he was knowingly, intelligently, and
voluntarily waiving his right to counsel and then arbitrarily denied Applicant his right to
represent himself. Id. Applicant further contends that the trial judge tried to frighten him
into compliance by telling him he had three choices: (1) to waive his speedy trial right
and have a public defender appointed; (2) to have a public defender go to trial within the
speedy trial deadline, which the judge stated was ludicrous; and (3) to represent
himself, which the judge stated was crazy. Id. at 16.

Finally, Applicant does, however,

concede that he would have preferred to have an attorney, but the public defender
refused appointment if he had to go to trial within the speedy trial limitations. Id. at 1617.
Respondents argue that Applicant did not unequivocally request to proceed pro
se in his second retrial. Respondents base their argument on (1) Applicant’s failure to
object to the appointed counsel when the public defender’s office finally accepted the
appointment; (2) the fact that Applicant was represented by counsel in his two prior
trials; and (3) Applicant’s statement that he was going to trial by himself was a single
impulsive statement borne of frustration. Pre-Answer Resp. at 25-26.
In the Reply submitted by counsel, Applicant asserts that he was prepared to
represent himself, and even though he agreed to court-appointed counsel he again
requested to self-represent when counsel subsequently stated he could not be ready for
trial within the speedy trial period. Reply at 11. Applicant further contends that the CCA
erroneously found Applicant’s request for self-representation to have been done in
haste and misapplied state and federal law in its findings. Id. at 12.
The CCA addressed the self-representation claim as follows:
25

A defendant in a criminal case has both a right to counsel (appointed
counsel if he is indigent) and a right to represent himself. See U.S. Const.
amend. VI; Colo. Const. art. II, § 16; Faretta v. California, 422 U.S. 806, 807,
813-20 (1975); People v. Romero, 694 P.2d 1256, 1263 (Colo. 1985). These
rights are obviously in tension. But, recognizing that the right to counsel affects a
defendant’s ability to exercise other rights, the Supreme Court has instructed that
a court must “indulge in every reasonable presumption against [its] waiver.”
Brewer v. Williams, 430 U.S. 387, 404 (1977); accord People v. Arguello, 772
P.2d 87, 93 (Colo. 1989); see also People v. Abdu, 215 P.3d 1265, 1267 (Colo.
App. 2009). Therefore, a court must accede to a defendant’s request to
represent himself only if the defendant’s waiver of his right to counsel is
voluntary, knowing, intelligent, and unequivocal. See People v. Alengi, 148 P.3d
154, 159 (Colo. 2006) (court must ascertain, under the totality of the
circumstances, whether the defendant’s waiver is voluntary, knowing, and
intelligent; record must show “an unequivocal intent to relinquish or abandon
defendant’s] right to representation”); Arguello, 772 P.2d at 93 (“before a
defendant is allowed to proceed pro se, the defendant must first effect a valid
waiver of the right to counsel”); Abdu, 215 P.3d at 1267-68.
“A trial court evaluating a defendant’s request to represent himself
must ‘traverse . . . a thin line’ between improperly allowing the defendant
to proceed pro se, thereby violating his right to counsel, and improperly
having the defendant proceed with counsel, thereby violating his right to
self-representation.” Fields v. Murray, 49 F.3d 1024, 1029 (4th Cir. 1995)
(en banc) (quoting in part Cross v. United States, 893 F.2d 1287, 1290
(11th Cir. 1990)). Because of the delicate nature of this task, the Colorado
Supreme Court requires that a district court carefully and thoroughly
advise a defendant on the record of the consequences of waiving his right
to counsel and representing himself before finding that a defendant has
waived his right to counsel. Arguello, 772 P.2d at 95-96.
Here, as noted, the district court found that defendant had implicitly
waived his speedy trial right because he desired to be represented by the
Public Defender and knew the Public Defender could not be ready for trial
within the speedy trial period. The court found, albeit implicitly, that
defendant had not unequivocally waived his right to counsel and invoked
his right to proceed pro se. In setting a trial date beyond the six-month
deadline, the court acted in accordance with case law holding that where a
defendant does not waive either his right to a speedy trial or his right to
counsel, and an extension of a trial date beyond the speedy trial deadline
is necessary to protect the defendant’s right to effective assistance of
counsel, the delay is chargeable to the defendant and there is no speedy
trial violation. See, e.g., People ex rel. Gallagher v. Dist. Court, 933 P.2d
583, 588-89 (Colo. 1997); People v. Jefferson, 981 P.2d 613, 614-15
(Colo. App. 1998).
26

No Colorado appellate decision has held what standard of appellate
review applies to a trial court’s finding that a defendant only equivocally
indicated a desire to represent himself. Some courts have held that such
a finding is one of fact, to which an appellate court must defer unless it is
clearly erroneous. See United States v. Mackovich, 209 F.3d 1227, 123637 (10th Cir. 2000); Fields, 49 F.3d at 1029-32; Hamilton v. Groose, 28
F.3d 859, 862 (8th Cir. 1994); Cain v. Peters, 972 F.2d 748, 749 (7th Cir.
1992); DeGroot v. State, 24 S.W.3d 456, 457 (Tex. App. 2000). These
courts reason that this type of question is one as to which the trial court is
better positioned to decide. As the Fourth Circuit Court of Appeals has
explained in this context:
The clarity and unequivocality of a defendant’s expression is
determined not only by the words he speaks, but by his way
of speaking them and his manner and demeanor when he is
speaking; undeniably, the same words can express different
degrees of certainty depending on how they are spoken. A
transcript of the state trial court proceedings can reveal
neither the way a defendant spoke when he indicated his
desire to represent himself nor the manner and demeanor he
assumed at the time of this indication.
Fields, 49 F.3d at 1031. Other courts, however, have held that the
question is subject to de novo review on appeal. See People v. Marshall,
931 P.2d 262, 273 (Cal. 1997) (holding, after surveying case law from
other jurisdictions, that the question is “primarily” one of law subject to de
novo review); State v. Ochoa, 675 N.W.2d 161, 169-70 (N.D. 2004). And
in Abdu, 215 P.3d at 1267, a division of this court held that the question
whether a trial court erroneously denied a defendant’s right of selfrepresentation – an arguably qualitatively different question than whether
a defendant unequivocally expressed a desire to represent himself – is
subject to de novo review, at least where no historical facts are in dispute.3
3

In Colorado, the question whether a defendant voluntarily, knowingly, and
intelligently waived his right to counsel is regarded as a mixed question of law
and fact that we review de novo. See People v. Bergerud, 223 P.3d 686, 693
(Colo. 2010); People v. Smith, 77 P.3d 751, 757 (Colo. App. 2003); People v.
Stanley, 56 P.3d 1241, 1244 (Colo. App. 2002). It may be, however, that the
relative equivocality of a defendant’s invocation of his right to self-representation
is more fact intensive and dependent on factors an appellate court is ill-suited to
evaluate. See Fields, 49 F.3d at 1030-32 & n.9 (discussing the difference
between the two questions for purposes of determining the appropriate standard
of review).

27

We need not decide which standard of review applies, however,
because defendant cannot prevail under either. Numerous courts (even
those applying de novo review to this question) have held that a court may
disregard a defendant’s request to represent himself that is made out of
temporary whim or annoyance: such expressions are deemed equivocal.
See, e.g., Reese v. Nix, 942 F.2d 1276, 1279, 1280-81 (8th Cir. 1991) (the
defendant’s statement, “Well, I don’t want no counsel then,” was equivocal
because it was an impulsive response to the court’s denial of his request
for new counsel); Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir. 1990)
(the defendant’s statement, “I want to fight it pro per then. Relieve [my
attorney] and I do this myself,” was equivocal because it was an impulsive
response to the court’s denial of his request for new counsel); Marshall,
931 P.2d at 269, 270-74 (the defendant’s statement, “I would like to fire
this attorney and go pro per,” was equivocal because it was an impulsive
response to adverse rulings); People v. Hacker, 563 N.Y.S.2d 300, 301
(N.Y. App. Div. 1990) (the defendant’s statement that he wanted to
represent himself was equivocal because it was an impulsive response to
the court’s denial of his request for new counsel); State v. Torkelsen, 752
N.W.2d 640, 655-56 (N.D. 2008).
Here, defendant’s apparent expression of a desire to represent
himself, read in context, was an impulsive act borne of frustration with the
length of time it was taking to bring him to trial and the Public Defenders’
statements that they could not be ready for trial in one week. As noted,
defendant had previously been represented by appointed counsel
throughout the case, at his behest, and clearly expressed his desire at the
July 11 hearing to be represented by court-appointed counsel. That he
might represent himself was not even his own idea, but one the court
broached when the Public Defenders indicated they could not be ready for
trial by July 18. Defendant responded to that idea impulsively. And after
he did so, and after the court had indicated that defendant had not waived
his right to counsel, defendant did not reassert his desire to represent
himself at the hearing. Cf. People v. Edwards, 101 P.3d 1118, 1120
(Colo. App. 2004) (where, after the defendant’s attorney was allowed to
withdraw, the defendant twice requested to proceed to trial and said he
was prepared to represent himself, but court appointed new counsel and
the defendant did not thereafter ask to be allowed to represent himself, the
defendant did not unequivocally invoke right of self-representation), aff’d,
129 P.3d 977 (Colo. 2006).4
4

We also observe that, although a court must first determine whether a
defendant has validly waived his right to counsel before allowing him to represent
himself, see Arguello, 772 P.2d at 93, the district court did not inquire of
defendant pursuant to Arguello, and the record does not otherwise support a

28

finding of such a waiver. This supports the conclusion that the district court
believed defendant did not desire to waive his right to counsel.

Pre-Answer Resp., ECF No. 11-6, Ex. E at 10-16.
In Faretta v. California, 422 U.S. 806, 807 (1975), the United States Supreme
Court held that the Sixth Amendment affords a criminal defendant the right to proceed
without counsel. See United States v. Loya-Rodriguez, a.k.a. Protillo-Loya, 672 F.3d
849 (10th Cir. 2012). The Supreme Court also acknowledged that the right “cut[s]
against the grain of [the] Court’s decisions holding that the Constitution requires that no
accused can be convicted and imprisoned unless he has been accorded the right to
assistance of counsel.” Faretta, 422 U.S. at 832. The Court further recognized that
usually self-representation is inferior to representation by an attorney, id. at 834, and
cautioned the court to ensure that the choice of proceeding without counsel is made
“knowingly and intelligently” and only after a defendant is “made aware of the dangers
and disadvantages of self-representation, id. at 835.
If a court “incorrectly determines that a defendant has elected selfrepresentation, it has deprived him of the constitutional right to be represented by
counsel. But if it incorrectly determines that the defendant has not elected selfrepresentation, it has likewise deprived him of a constitutional right.” United States v.
Miles, 572 F.3d 832, 836 (10th Cir. 2009). “[I]f a defendant in a criminal proceeding
makes an equivocal demand on the question of self-representation, he has a potential
ground for appellate reversal no matter how the district court rules.” United States v.
Treff, 924 F.2d 975, 979 (10th Cir. 1991).

29

A defendant can represent himself only after four conditions are met. LoyaRodriguez, 672 F.3d at 856.
First, the defendant must clearly and unequivocally inform the district court
of his intention to represent himself. Second, the request must be timely
and not for the purpose of delay. Third, the court must conduct a
comprehensive formal inquiry to ensure that the defendant’s waiver of the
right to counsel is knowingly and intelligently made. Finally, the defendant
must be able and willing to abide by rules of procedure and courtroom
protocol.
Id. (citing United States v. Tucker, 451 F.3d 1176, 1180 (10th Cir. 2006)) (citations and
internal quotation marks omitted). The right to self-representation is not absolute.
United States v. Akers, 215 F.3d 1089, 1097 (10th Cir. 2000). A court is not obliged to
accept every defendant’s invocation of the right to self-representation and may
terminate the right to self-representation even after the right is unequivocally asserted.
Munkus v. Furlong, 170 F.3d 980, 984 (10th Cir. 1999) (citations omitted).
The CCA found Applicant’s statement that he desired to represent himself was
impulsive and a result of frustration with the time it was taking to bring him to trial. ECF
No. 11-6 at 15. The CCA further noted that Applicant had been represented by
appointed counsel throughout the case, clearly expressed his desire to be represented
by counsel, and only sought to proceed pro se when the public defenders stated they
could not be ready for trial by July 18. Id. The CCA also found that after the trial court
ruled Applicant had not waived his right to counsel he did not reassert his desire to
represent himself at the hearing. Id. at 16.
I have reviewed the transcripts for the July 11, 2005 pretrial hearing when the
self-representation issue was before the trial court. At this hearing, when Applicant was
asked if he wanted the court to appoint a public defender or if he wanted to represent
30

himself, Applicant responded that he wanted the public defender appointed. Trial Tr.,
July 11, 2005 Hr’g at 6 (6). Applicant also acknowledged that he was not prepared to
proceed to trial. Id. Only when the public defender stated that he would not be effective
and would not accept the appointment for a trial within a week did Applicant state that
he would proceed pro se and stated he would not waive his right to a speedy trial. Id. at
12 (12). At this point the trial court acknowledged that a balancing of all the factors was
necessary and stated the court’s responsibility was to look out for Applicant’s best
interests. Id. at 16 (16). The trial court found that under the circumstances the public
defender’s office would be appointed and Applicant’s right to a speedy trial was waived.
Id.
When Applicant stated that he was “ready to go,” id. at 6 (6), it was not
unequivocal and clear that he intended to represent himself. Applicant had stated he
was not prepared to proceed pro se and only insisted to proceed based on his refusal to
waive his speedy trial rights. Applicant, therefore, failed to meet the first condition
required under Tucker to establish he was able to represent himself.
The state court’s factual findings, which are presumed correct in a federal
habeas proceeding, are supported by the state court record. Id. at 6(6), 12(12), and
16(16). The CCA’s application of these facts follows the clearly established federal law
in Faretta and Brewer. Accordingly, the CCA decision regarding the self-representation
claim did not result in a decision that was contrary to, or involve an unreasonable
application of, clearly established federal law, as determined by the Supreme Court of
the United States and did not result in a decision that was based on an unreasonable

31

determination of the facts in light of the evidence presented in the state court
proceeding. This claim, therefore, lacks merit and will be dismissed.
IV. Conclusion
For the foregoing reasons, it is
ORDERED that the Application, ECF No. 1 is DENIED and the action is
dismissed with prejudice. It is
FURTHER ORDERED that the issuance of a Certificate of Appealability pursuant
to 28 U.S.C. § 2253(a) is denied. Applicant has not made a substantial showing of the
denial of a constitutional right such that reasonable jurists could disagree as to the
disposition of his petition pursuant to the standards of Slack v. McDaniel, 529 U.S. 473,
484 (2000). See 28 U.S.C. § 2253(c)(2). It is
FURTHER ORDERED that it is certified pursuant to 28 U.S.C. § 1915(a)(3) any
appeal from this Order is not taken in good faith, and, therefore, in forma pauperis
status will be denied for the purpose of appeal. See Coppedge v. United States, 369
U.S. 438 (1962). If Applicant files a notice of appeal he must also pay the full $505.00
appellate filing fee or file a motion to proceed in forma pauperis in the United States
Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.
P. 24.
DATED this 9th day of

October

, 2014.
BY THE COURT:
s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

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