Pouncy v. Palmer

Filing 76

AMENDED OPINION AND ORDER Conditionally Granting Writ of Habeas Corpus. Signed by District Judge Matthew F. Leitman. (AChu)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
OMAR RASHAD POUNCY,
Petitioner,

Case No. 13-cv-14695
Hon. Matthew F. Leitman

v.
CARMEN D. PALMER,
Respondent.
_________________________________/
AMENDED OPINION AND ORDER CONDITIONALLY GRANTING
WRIT OF HABEAS CORPUS*
In Faretta v. California, 422 U.S. 806 (1975), the United States Supreme
Court held that a criminal defendant has a constitutional right to represent himself
at trial. But the Supreme Court stressed that a defendant’s waiver of his right to
counsel (and decision to defend himself) is valid only if it is truly voluntary – a
free “choice” made with “eyes wide open.” Id. at 835.
In this case, Petitioner Omar Rashad Pouncy (“Pouncy”) waived his right to
counsel and represented himself at his criminal trial, but he did not make a free
“choice” to do so. He chose to represent himself only because his attorney was
*

This Amended Opinion and Order makes only two non-substantive changes to the
Opinion and Order Conditionally Granting Writ of Habeas Corpus, dated January
8, 2016 (the “January 8 Order”) (ECF #74). First, the January 8 Order’s reference
on page 2 to the “Saginaw County Prosecutor” has been changed to the “Genesee
County Prosecutor.” Second, the text in footnote 2, which previously read “See
footnote 4,” now reads “See footnote 7.”
1

admittedly and obviously unprepared for trial.

Under these circumstances,

Pouncy’s decision to forego his right to counsel was “no choice at all.” James v.
Brigano, 470 F.3d 636, 644 (6th Cir. 2006). Pouncy’s waiver of counsel thus
clearly failed to comply with Faretta. The Michigan Court of Appeals nonetheless
held that the waiver was constitutionally sufficient. That was an unreasonable
application of Faretta. Pouncy is therefore entitled to habeas relief.
I.
In 2005, the Genesee County Prosecutor charged Pouncy with four counts of
carjacking, four counts of armed robbery, two counts of felony firearm, and one
count of felony possession of a firearm. (See 1-24-2006 Trial Tr., ECF #8-7 at 18,
Pg. ID 473.) The prosecutor alleged that Pouncy and an accomplice contacted
individuals who had advertised a vehicle for sale, lured those individuals to an
isolated area, and then carjacked them at gunpoint. (See id. at 203-04, Pg. ID 65960.)
Pouncy, who was eighteen years old at the time of trial, did not have the
resources to post bond and was held in custody from the time he was first charged
up through (and including) his trial. Nor could Pouncy afford an attorney. The
state court therefore appointed defense attorney Michael Breczinski (“Breczinski”)
to represent Pouncy.

Pouncy told Breczinski that his primary defense to the

2

charges was that he had an alibi and that the prosecution had the wrong man. (See,
e.g., id. at 5, 14, Pg. ID 460, 469.)
Pouncy was arraigned in the state trial court on November 14, 2005. (See
Register of Actions, ECF #8-42 at 2, Pg. ID 3204.) That court scheduled Pouncy’s
trial to begin just eight weeks later, on January 10, 2006. (See id.) Breczinski did
not file a single substantive motion on Pouncy’s behalf between the arraignment
and the scheduled trial date.

His only motion requested a modest two-week

adjournment of the trial, which the court granted. (See id. at 3, Pg. ID 3205.) But
Breczinski did not use the extra time to file any other motions of any kind. (See id.)
Pouncy’s trial began on January 24, 2006, a mere ten weeks after his
arraignment. (See id.) As soon as the presiding judge called the case on the record
that morning, Breczinski expressed concern about whether he was sufficiently
prepared to begin trial. (See 1-24-2006 Trial Tr., ECF #8-7 at 3-4, Pg. ID 458-59.)
Breczinski told the judge that there was a large volume of materials to review and
“a number of leads” to pursue; that he “would have been stretched too thin” to do
all of the necessary work himself; and that he therefore hired a private investigator
to conduct a substantial portion of the investigation into Pouncy’s defenses. (Id.
12-13, Pg. ID 467-68.) Breczinski said that he put the investigator in contact with
Pouncy and that he gave the investigator access to his complete file. (See id. at 1112, Pg. ID 466-67.) Breczinski then explained that the investigator had provided

3

an initial oral report stating, at that time, that he had found “nothing on some of the
leads that we have as to possible alibi witnesses and such.” (Id. at 3-4, Pg. ID 46162.) Breczinski stressed, however, that he had not yet received the investigator’s
“final written report,” and that he thus could not be certain that he was prepared for
trial. (Id.)
Breczinski told the judge that “[w]ithout [the] written report,” he could only
“assume,” based on the investigator’s “reputation and past performance,” that the
investigator had done a thorough review of the case (id. at 17, Pg. ID 472);
Breczinski candidly admitted that he did not “know” whether the investigator had,
in fact, conducted a complete review. (See id.) Breczinski also acknowledged that
he was unable to assess his own level of preparation “because [he did not] have
that full detailed report from [the investigator] which [he] was expecting.” (Id. at 4,
Pg. ID 459.) In Breczinski’s words: “[s]ince I have no details[,] to say whether
I’m ready for trial or not is problematic….” (Id.; emphasis added.)1 Simply put,
Breczinski could not assure the court, or Pouncy, that he (or his investigator) had
completed the investigation into Pouncy’s intended primary defenses at trial –

1

In response to Breczinski’s concerns, the assistant prosecutor assigned to the case
expressed his “understanding” that the investigator had made attempts to develop
support for Pouncy’s alibi and mistaken identification defenses but “was
unsuccessful in furthering the defense’s theory or investigation.” (1-24-2006 Trial
Tr., ECF #8-7 at 4, Pg. ID 461.) But the prosecutor did not explain the basis for
his “understanding.”
4

Pouncy’s claimed alibi and the mistaken identification by the prosecution’s
witnesses.
Despite Breczinski’s insistence that he did not know if the investigator had
completed his work, the trial court concluded that the investigator had completed
his review of Pouncy’s possible defenses and found nothing. The judge said
“[w]hat it sounds like to me then is that the investigator has filed, followed up with
the leads and he just hasn’t been able to come up with anything.” (Id. at 11, Pg. ID
466.)
Pouncy also raised concerns about Breczinski’s lack of preparation at the
very beginning of the proceedings. Pouncy told the trial judge that Breczinski had
failed to communicate with him (see, e.g., id. at 5-7, Pg. ID 460-62) and that
“today” (i.e., the morning of the first day of trial) was “our first time really
talkin[g].” (Id. at 5, Pg. ID 460). Breczinski explained that he had visited Pouncy
in jail roughly six times, but Pouncy asserted that Breczinski had not stayed longer
than ten or fifteen minutes during any of these meetings. (See id. at 7-8, Pg. ID
462-63.)

Pouncy insisted that during these short visits, Breczinski simply

“drop[ped] off [] piece[s] of paper” like a transcript and did not “talk” to him. (Id.
at 8, Pg. ID 463.) Pouncy further told the judge that he had not yet received any
discovery materials. (See id. at 6, Pg. ID 461.) Notably, Breczinski never disputed
Pouncy’s description of their interactions nor did Breczinski claim to have

5

delivered any discovery materials to Pouncy. Pouncy finally complained that he
was “not getting proper representation” from Breczinski; said that he did not “feel
comfortable” proceeding to trial with such unprepared counsel; and he asked the
judge to appoint him a new lawyer. (Id. at 6-7, Pg. ID 461-62.)
In response, the trial judge told Pouncy that he (Pouncy) was “not in a
position to judge whether Mr. Breczinski” was providing him proper
representation, and the judge assured Pouncy that Breczinski was an experienced
and competent attorney.

(Id. at 9-11, Pg. ID 464-66.)

And when Pouncy

continued to express his concerns about proceeding to trial with unprepared
counsel, the trial judge told Pouncy that the trial was going to begin that morning
because “we got a jury downstairs that’s ready to go….” (Id. at 10, Pg. ID 465.)
The judge added that if Pouncy wished to remain present for his trial that he
needed to “keep [his] mouth shut” (Id. at 18, Pg. ID 473), and that to prevent
interruptions he would “gag [Pouncy] right there in the seat and have the jurors to
[sic] sit [there] and watch [him] with a gag in [his] mouth during the entire trial.”
(Id. at 16, Pg. ID 471.)
Before bringing the prospective jurors into the courtroom, the trial judge
asked counsel to compare the prosecution’s final plea offer to Pouncy’s sentencing
exposure in the event of a conviction following a trial. In the context of that
discussion, the judge noted that the armed robbery charge “carrie[d] [a possible]

6

life” sentence, and he then asked Breczinski to “tell me what [Pouncy’s
sentencing] guidelines” would be in the event Pouncy was convicted on all counts.
(Id. at 19-20, Pg. ID 474-75.) Breczinski responded that the guidelines range was
135 to 337 months in prison – roughly eleven and one-half to twenty-eight years.
(See id. at 20-21, Pg. ID 475-76.) Based upon Breczinski’s calculations, the judge
explained to Pouncy that “the guidelines say I should give you a sentence
somewhere between eleven and-a-half to twenty-eight, eight years” if Pouncy was
convicted on all the charges brought against him. (Id. at 21, Pg. ID 476.)
It turns out that Breczinski – whose experience and abilities the trial judge
had touted to Pouncy – had materially miscalculated the guidelines range (which
the trial court then incorrectly accepted and repeated to Pouncy). The true range
was 225 months to 562 months (see Sentencing Tr., ECF #8-16 at 34, Pg. ID
1936), but that range was not discovered until after Pouncy was convicted.
Before summoning the jury pool to the courtroom, the trial judge also heard
arguments on two motions in limine made by the prosecution. In one of the
motions, the prosecutor sought to admit a purported tape recording of Pouncy
threatening a witness.

The prosecutor explained that the allegedly-threatened

witness could lay the required foundation for the recording by identifying Pouncy’s
voice, and the prosecutor argued that the recording was admissible “to show
consciousness of guilt.” (1-24-2006 Trial Tr., ECF #8-7 at 30-31, Pg. ID 485-86.)

7

As support for admission of the recording, the prosecutor cited authority from both
the Michigan Supreme Court and the Michigan Court of Appeals. (See id.)
Breczinski’s primary response to this motion was two jumbled sentences:
“Your Honor, if it was just that we’d be jumping up and down about it.
Unfortunately, for my client they’ve also, the, at least the, they’ve informed me, at
least through that they apparently have the call traced from the, these people, was it
the Sandstroms?” (Id. at 31, Pg. ID 486.) But the prosecutor quickly corrected
Breczinski and clarified that the recorded call had not been traced back to Pouncy.
(See id. at 31-32, Pg. ID 486-87.) And even though Breczinski said that if the call
had not been traced, he would be “jumping up and down” to oppose admission of
the recording, he then offered no objection at all to its admission. (See id. at 34, Pg.
ID 489.) Moreover, Breczinski did not even acknowledge, much less attempt to
distinguish, the case law cited by the prosecutor.
In the second motion in limine, the prosecution sought to introduce alleged
prior bad acts evidence against Pouncy under Michigan Rule of Evidence 404(b).
(See id. at 24-25, Pg. ID 479-80.) Breczinski offered only token opposition – three
spoken sentences – to that motion. (See id.)
Breczinski’s handling of the motions in limine appears to have heightened
Pouncy’s concerns about proceeding to trial with Breczinski as his lawyer. Just
before opening statements, Pouncy asked the trial judge if he had “the right to

8

represent [himself].” (Id. at 191, Pg. ID 647.) The judge responded that if Pouncy
chose to represent himself, then he would have to do so “in total,” with Breczinski
merely “sitting there.” (Id.)

The judge then told Pouncy that if he chose to

represent himself that he would “really [be] a fool” because Pouncy did not “have
a clue as to what [he would be] doin’.”

(Id. at 192, Pg. ID 648.)

Pouncy

responded that he knew he was “not guilty” and, for the time being, dropped his
request to represent himself. (Id.)
Pouncy’s anxiety about proceeding with Breczinski as his counsel arose
again during the prosecutor’s opening statement. When the prosecutor finished
addressing the jury, Pouncy asked the trial judge if he (Pouncy) could give his own
opening statement and if Breczinski could from that point forward assist him in
making objections. (See id. at 212-13, Pg. ID 668-69.) Pouncy again complained
to the judge that Breczinski never meaningfully “talk[ed] to him” about the case
and that Breczinski’s knowledge was thus limited to the facts described by the
police in the discovery materials. (Id. at 214-18, Pg. ID 670-74.) The trial judge
told Pouncy that he would have to choose between representing himself and having
Breczinski serve as trial counsel; the judge would allow only one of them to “be
the lawyer.” (Id. at 213, Pg. ID 669.) And the judge strongly advised Pouncy to be
“very careful” before deciding to represent himself because Pouncy was not
familiar with the applicable laws and rules of procedure. (Id.) The judge told

9

Pouncy that if he (the judge) was in Pouncy’s position, he “would let Mr.
Breczinski represent me in a heartbeat before I would represent myself with the
knowledge you have.” (Id. at 216-17, Pg. ID 672-73.)
Pouncy then asked the trial judge if it was “an option” for him “get” new
counsel to replace Breczinski. (Id. at 215-16, Pg. ID 671-72.) The judge replied:
“if you want to decide who’s going to represent you then you get your money
together and you go hire the lawyer you want to represent you. Otherwise, you’re
gonna get the lawyer that we appoint for you to represent you” (i.e., Breczinski).
(Id. at 216, Pg. ID 672.) Pouncy then told the judge that he would, indeed, proceed
to hire his own lawyer, but the judge told him that it was too “late for that” because
it was “trial day.” (Id.) The judge finally declared that they were “at the end of
this conversation,” and he told Breczinski that “it looks like you’ll be making the
opening statement.” (Id. at 217-18, Pg. ID 673-74.) Breczinski then did so.
Breczinski’s opening statement was brief – taking up just two transcript
pages. (See id. at 219-21, Pg. ID 675-77.) Breczinski first conceded that the
complaining witnesses were robbed and told the jury that the only “issue is
whether or not Omar Pouncy did it.” (Id. at 219-20, Pg. ID 675-76.) Breczinski
then said the complaining witnesses “really hadn’t met [Pouncy] much;” that the
robberies were “relatively short thing[s];” that the alleged accomplice who would
be testifying against Pouncy had a motive to frame him; and that the prosecution

10

did not have any DNA evidence or fingerprints. (Id. at 219-21, Pg. ID 675-77.)
But Breczinski did not tell jurors that they would have a reasonable doubt after
hearing all of the evidence. Instead, Breczinski told the jurors that “if there’s a
reasonable doubt as to [whether Pouncy was involved in the carjackings],” then
“we’ll be asking you to come back with a verdict of not guilty.” (Id. at 221, Pg. ID
677; emphasis added.)
Breczinski’s opening statement was apparently the “last straw” for Pouncy.
He took over his own defense beginning with the cross-examination of the
prosecution’s first witness. Before he began representing himself, Pouncy had the
following exchange with the trial judge:
MR. BRECZINSKI: During the direct examination of
what is the first witness of this matter, Mr. Scott Davis,
my client wrote a note which he passed me that says, and
I quote, “I’m gonna represent myself from now on so you
can tell the Judge” and he apparently does desire that he
definitely wishes to represent himself.
THE COURT: Okay Mr. Pouncy would you stand sir? Is
that your desire at this time? Please remain standing sir.
Mr. Pouncy you understand you have the right to an
attorney and you have the right to Court appointed
counsel if you can’t afford one, do you understand that?
MR. POUNCY: I don’t have attorney right now.
THE COURT: Sir I’m just asking you do you understand
your rights sir?
MR. POUNCY: Oh yes I do understand.

11

THE COURT: You understand that if you represent
yourself that I will have to treat you like any other lawyer
and if you don’t comply with the Court rules I’m gonna
have to call you on it you understand that?
MR. POUNCY: Yes sir.
THE COURT: And you understand that Mr. Breczinski
will be here just simply to advise you from this trial forth
and if you stand up and start representing yourself you’re
not gonna be able to change horses in the middle of the
stream. You’re gonna be representing yourself from
beginning to end sir. Is that what you really want to do?
MR. POUNCY: Yes. Yes.
THE COURT: Mr. Pouncy I’m gonna tell you that in my
opinion you have no business representing yourself, none
whatsoever.
MR. POUNCY: The fact that they found the (inaudible)
shoe –
THE COURT: Sir I just, sir I just want you to understand
that uh –
MR. POUNCY: All right I’m ready to go then.
THE COURT: All right then Mr. Breczinski have a seat
and Mr. Pouncy have a seat sir.
MR. POUNCY: (Inaudible)
THE COURT: Yes sir. And everyone stand. Trish bring
the jury back in.
(At 3:20 p.m., Jury enters room)
THE COURT: Everyone stand yes. Ladies and gentlemen
please have a seat. We’re on the record. Ladies and
12

gentlemen at this time I have to advise you that Mr.
Pouncy has decided to represent himself in this trial and I
want you to understand that if, since he’s decided to
represent himself, that this Court has an obligation to hold
him to the same standard as I would any other lawyer and
so if for some reason I have to make rulings, I don’t want
you to think that my rulings are any indication of my
opinion about this case. My rulings are gonna be simply
based on what the law requires me to do and in no way,
shape or form reflects my opinion about this case and I
just want you to understand that. With that Mr. Pouncy do
you wish to cross-examine the witness sir?
MR. POUNCY: Yes.
(Id. at 232-34, Pg. ID 688-90; emphasis added.)
From that point forward, Pouncy represented himself. As the trial moved
forward, the judge confirmed Pouncy’s continuing desire to represent himself
through a number of exchanges like the following:
THE COURT: All right Mr. Pouncy if you would stand
sir? Again I want to advise you that you have the right to
an attorney, you have the right to Court appointed
counsel if you cannot afford an attorney. This Court has
appointed an attorney to represent you and you’ve made
it clear that you want to represent yourself. Again, I, I
would caution you against representing yourself because
of the procedural aspects and your unfamiliarity with the
procedures. However, if you choose to represent yourself
then I have to allow you to but I would again advise you
not to represent yourself in this matter. So what do you
choose to do at this time sir?
MR. POUNCY: Continue with the same decision if that’s
okay?

13

THE COURT: And you would continue, choose to
continue representing yourself?
MR. POUNCY: Yes.
(1-26-2006 Trial Tr., ECF #8-10 at 5-6, Pg. ID 985-86.)
The jury ultimately found Pouncy guilty on all of the charges brought
against him. When Pouncy appeared for sentencing, the trial judge confirmed that
the sentencing guidelines range was much higher than Breczinski had calculated
and that the Court had previously told Pouncy. The actual range was 225-562
months. (See Sentencing Tr., ECF #8-16 at 34, Pg. ID 1936).) The trial court
sentenced Pouncy to a term of 562-800 months in custody. (See id. at 81, Pg. ID
1983.) The minimum term of this sentence was 225 months longer than the
highest end of the guidelines calculated by Breczinski (and adopted by the trial
court) before trial.
II.
Pouncy appealed his conviction to the Michigan Court of Appeals, and that
court affirmed. See People v. Pouncy, 2008 WL 9869818 (Mich. Ct. App. Mar. 25,
2008).

The state appellate court rejected Pouncy’s claim “that he did not

knowingly, intelligently, and voluntarily waive his right to have counsel represent
him at trial.” Id. at *4. The appellate court first explained that a trial court must
make three findings before accepting a waiver of counsel: (1) that the request for
self-representation is unequivocal; (2) that the waiver of counsel is knowingly,
14

intelligently, and voluntarily made; and (3) that the defendant will not disrupt the
proceedings. See id. at *5. The appellate court also recognized its obligation to
“indulge every reasonable presumption against waiver” and to refrain from
presuming a waiver from a silent record. Id.
After quoting at length from the exchanges between Pouncy and the trial
judge (described above), the appellate court offered the following analysis:
As can be seen from these exchanges, this is not a case
where defendant “steadfastly rejected the option of
proceeding to trial without the assistance of counsel,” by
repeatedly insisting on the appointment of substitute
counsel. Russell, supra at 192. Rather, defendant
repeatedly raised the issue of self-representation. After
defendant's initial inquiry about his entitlement to
represent himself, several exchanges transpired between
defendant and the trial court regarding whether he
actually wished to represent himself. But after each
exchange the trial court erred on the side of ruling against
waiver. During the last exchange, defendant confirmed
that he understood the risks associated with selfrepresentation and ultimately indicated that he was ready
to proceed. Only then did the trial court permit defendant
to represent himself.
***
Defendant also argues that his waiver was not knowing
and intelligent because the trial court failed to adequately
advise him of the risks of self-representation. We do not
agree.
The existence of a knowing and intelligent waiver of
counsel depends on the particular facts and circumstances
of a case. People v. Riley, 156 Mich. App. 396, 399; 401
N.W.2d 875 (1986), overruled in part on other grounds
15

People v. Lane, 453 Mich. 132; 551 N.W.2d 382 (1996).
An explanation of the risks of self-representation requires
more than informing the defendant that he waives
counsel at his own peril. People v. Blunt, 189 Mich. App.
643, 649–650; 473 N.W.2d 792 (1991). A defendant
must be specifically and rigorously warned of the hazards
ahead. Russell, supra at 193 n. 27, citing Iowa v. Tovar,
541 U.S. 77, 88–89; 124 S. Ct. 1379; 158 L. Ed. 2d 209
(2004). An explanation of the risks of self-representation
should include, for example, a warning that exercising
the right to self-representation is usually an unwise
decision and the defendant may be acting to his own
detriment, and a warning that the defendant will not be
afforded any special treatment and will be held to abide
by the special skills and training required of any
professional attorney. Blunt, supra at 649–650.
In the present case, the record demonstrates that the trial
court properly advised defendant of the risks of selfrepresentation. The trial court told defendant that he
would be a “fool” to represent himself and warned him
that the court would treat him “like any other lawyer.”
Indeed, the trial court explained that defendant would be
bound to comply with the court rules, which included
making “objections and everything else.” After defendant
effectively asserted his right to represent himself, the trial
court was not required to repeatedly pressure defendant
into relinquishing that right. People v. Morton, 175 Mich.
App. 1, 7; 437 N.W.2d 284 (1989). Based on the totality
of the exchanges, we conclude that the trial court
properly apprised defendant of the risks associated with
self-representation.
Moreover, the record reflects that the trial court
repeatedly advised defendant of the charges against him,
including the minimum and maximum prison sentences
associated with the various charges, both at the beginning
of trial and at every subsequent proceeding. See MCR
6.005(D). Additionally, the record reflects that
throughout the entire proceeding, Breczinski was
16

available to advise defendant as standby counsel and
actively participated in the trial by performing voir dire
and questioning witnesses. See MCR 6.005(D)(2).
Pouncy, 2008 WL 9869818, at *8-9.
The state appellate court did not directly address whether the trial court
impermissibly forced Pouncy to choose between unprepared appointed counsel and
self-representation. But the appellate court did touch on the level of Breczinski’s
preparation when it rejected Pouncy’s argument that Breczinski was ineffective for
failing to present an alibi defense. The appellate court said:
During defendant's arraignment, Breczinski moved to
adjourn trial on the ground that he had not yet been able
to investigate numerous witnesses allegedly related to
defendant's defense. The trial court granted the motion
and rescheduled the trial for later that same month. The
morning of trial, defendant complained that Breczinski
had not prepared an alibi defense. However, the record
shows that Breczinski hired an investigator for the
specific purpose of tracking down and interviewing
potential alibi witnesses. The investigator met with
defendant to collect the names of potential witnesses.
Defendant conceded that he only gave the investigator
the name and number for one potential witness. The
investigation apparently revealed no legitimate potential
for an alibi defense. Therefore, Breczinski was not
ineffective for failing to raise a futile defense.
Id. at *17.
The Michigan Supreme Court declined to hear Pouncy’s appeal. See People
v. Pouncy, 753 N.W.2d 187 (Mich. 2008).

17

At the conclusion of his direct appeal, Pouncy filed a motion for relief from
judgment with the trial court, and in that motion he again argued that his waiver of
counsel was ineffective. The trial court ruled that Pouncy was not entitled to relief
on his ineffective-waiver argument because the Michigan Court of Appeals had
decided that issue against him on direct appeal. (See Opinion, ECF #8-37 at 17-19,
Pg. ID 3153-55.) With respect to Pouncy’s specific argument that his waiver of
counsel was involuntary because the choice between self-representation and
representation by Breczinski was “no choice at all,” the trial court said:
It should be noted that Defendant Pouncy argues at
length that his choice between incompetent counsel and
self representation [sic] is no choice at all. His
arguments regarding the incompetence of counsel include
failure to be prepared for trial and failure to hire an
investigator. However, the Court of Appeals also decided
this issue against Defendant Pouncy in his prior appeal.
The Court looked to the multiple arguments of
ineffective assistance of counsel presented by Defendant
and ultimately held that Mr. Breczinski was not
ineffective.
(Id. at 19, Pg. ID 3155.)
The Michigan Court of Appeals and the Michigan Supreme Court thereafter
each denied leave to appeal from the trial court’s denial of Pouncy’s motion for
relief from judgment.
On November 12, 2013, Pouncy filed a Petition for a Writ of Habeas Corpus
in this Court (the “Petition”). (See ECF #1; see also ECF #2, 3.) Pouncy asserted

18

five main claims (a number of which consisted of multiple sub-claims), including
his claim that the state courts erred when they held that his waiver of counsel was
constitutionally sufficient.
III.
The Court will apply 28 U.S.C. § 2254(d), as amended by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”) to Pouncy’s waiver of
counsel claim.2 In relevant part, AEDPA provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1)

resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly

2

Pouncy argues that AEDPA deference under § 2254(d) does not apply because no
state court addressed the specific arguments that he presents here in support of his
invalid-waiver-of-counsel claim. Pouncy says that he did not raise these
arguments on direct appeal and that the Michigan Court of Appeals thus did not
address them; that he first presented these arguments in his post-conviction motion
for relief from judgment filed with the state trial court; and that the trial court
declined to address these arguments after concluding (wrongly, in Pouncy’s view)
that the Michigan Court of Appeals had already rejected the arguments. Pouncy
insists that de novo review thus applies. However, it does appear that the Michigan
Court of Appeals sought to determine whether Pouncy’s waiver of counsel was
voluntary. That court understood Pouncy’s argument – at least in a general sense –
to be that he “did not knowingly, intelligently, and voluntarily waive his right to
have counsel represent him at trial.” Pouncy, 2008 WL 9869818, at *4. And that
court purported to apply the Faretta standard to Pouncy’s waiver and to determine
whether Pouncy had, in fact, waived his right to counsel. (See footnote 7, infra.)
Thus, this Court will apply AEDPA deference to Pouncy’s invalid-waiver-ofcounsel claim. Needless to say, the Court would grant relief under de novo review.
19

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).
“The ‘contrary to’ and ‘unreasonable application’ clauses of § 2254(d)(1)
have independent meaning.” Loza v. Mitchell, 766 F.3d 466, 473 (6th Cir. 2014)
(citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A decision of a state court
is “contrary to” clearly established federal law if the state court “arrives at a
conclusion opposite to that reached by th[e Supreme] Court on a question of law or
if the state court decides a case differently than th[e Supreme] Court has on a set of
materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000).
A decision of a state court involves an “unreasonable application of” clearly
established federal law if the state court “identifies the correct governing legal
principal from th[e Supreme] Court’s decisions but unreasonably applies that
principal to the facts of the prisoner’s case.” Id.
AEDPA “imposes a ‘highly deferential standard for evaluating state-court
rulings,’ and ‘demands that state-court decisions be given the benefit of the
doubt.’” Renico v. Lett, 559 U.S. 766, 773 (2010) (quoting Lindh v. Murphy, 521
U.S. 320, 333, n.7 (1997)). Accordingly, a federal court may not “issue [a] writ

20

simply because that court concludes in its independent judgment that the relevant
state-court decision applied clearly established federal law erroneously or
incorrectly.” Id. “[A] 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 v. Richter, 562 U.S. 86, 101 (2011)
(internal quotation marks omitted).

Indeed, habeas relief “is a guard against

extreme malfunctions in the state criminal justice systems, not a substitute for
ordinary error correction through appeal.” Id. at 102-03. Thus, in order to obtain
habeas relief, “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.” Id. at 103. “[I]f this standard is difficult to meet, that is
because it was meant to be.” Id. at 102.
For the purposes of § 2254(d)(1), “[c]learly established Federal law …
includes only the holdings, as opposed to the dicta, of [the Supreme Court’s]
decisions.” White v. Woodall, 134 S. Ct. 1697, 1702 (2014). A habeas court must
not construe Supreme Court holdings at “a high level of generality.” Lopez v.
Smith, 135 S. Ct. 1, 4 (2014). Indeed, “clearly established Federal law” is limited
to the “specific question[s]” decided by the Supreme Court. Id. (emphasis added.)
Thus, it is not contrary to, nor an unreasonable application of, clearly established

21

federal law “for a state court to decline to apply a specific legal rule that has not
been squarely established by th[e Supreme] Court.” Harrington, 562 U.S. at 101
(emphasis added).
IV.
In Faretta, the United States Supreme Court held that a criminal defendant
has a Sixth Amendment right to represent himself. Faretta, 422 U.S. at 819-20.
The Supreme Court stressed that the notion of free choice is inherent in the
structure and history of the Sixth Amendment’s right-to-counsel provision:
The language and spirit of the Sixth Amendment
contemplate that counsel, like the other defense tools
guaranteed by the Amendment, shall be an aid to a
willing defendant – not an organ of the State interposed
between an unwilling defendant and his right to defend
himself personally. To thrust counsel upon the accused,
against his considered wish, thus violates the logic of
the Amendment.
Id. at 820 (emphasis added). The Supreme Court further highlighted that while
“those who wrote the Bill of Rights” certainly appreciated “the value of stateappointed counsel,” there is “no doubt” that they likewise “understood the
inestimable worth of free choice.” Id. at 833-34 (emphasis added). The Supreme
Court vacated the defendant’s conviction in Faretta because the state court had
compelled the defendant to accept counsel even though the record reflected that he
had “voluntarily exercise[d] his informed free will” when he asked to represent
himself. Id. at 835.
22

But the Supreme Court in Faretta also recognized that a defendant assumes
serious risks when he chooses to represent himself. Indeed, when a criminal
defendant exercises his right to represent himself, “he relinquishes, as a purely
factual matter, many of the traditional benefits associated with the right to
counsel.” Id. at 835. “For this reason, in order to represent himself, the accused
must ‘knowingly and intelligently’ forgo those relinquished benefits.” Id. (quoting
Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). A criminal defendant must “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 wide open.’” Id. (quoting Adams v. United States ex rel. McCann, 317 U.S.
269, 279 (1942)). Faretta thus “set” a “high standard” for a waiver of counsel,
Fowler v. Collins, 253 F.3d 244, 250 (6th Cir. 2001) – a standard that is satisfied
only when a defendant’s decision to represent himself is truly free and informed.3

3

Faretta involved a defendant who was compelled to accept counsel, not a
defendant who was challenging the validity of his waiver of counsel. But both the
Supreme Court and the Sixth Circuit have recognized that Faretta sets forth the
standard against which a claimed waiver of the right to counsel at trial must be
measured. See, e.g., Martinez v. Court of Appeal, 528 U.S. 152, 161-62 (2000)
(citing Faretta for the proposition that a defendant’s decision to represent himself
must be “voluntarily and intelligently” made and may be made only after a
defendant is warned about the dangers of self-representation); Fowler, 253 F.3d at
250 (Faretta “set” a “high standard” for waiver); Wilson v. Hurt, 29 Fed. App’x
324, 329 (6th Cir. 2002) (citing Faretta to support the proposition that “the
Supreme Court has repeatedly held that the waiver of the right to counsel must be
‘knowing an intelligent’ in order to be valid.”). Faretta expressly adopted its
waiver test, in part, from Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938), and thus
23

V.
Pouncy’s waiver of his right to counsel was involuntary – and thus did not
satisfy Faretta – because the state trial court forced Pouncy to choose between
unprepared counsel and representing himself. That amounted to “no choice at all.”
Brigano, 470 F.3d at 644.
The record contains compelling evidence that Pouncy’s trial counsel,
Breczinski, was woefully unprepared; that Pouncy did not want to represent
himself; that the trial judge denied Pouncy the opportunity to hire an attorney at his
own expense; and that Pouncy chose to represent himself because Breczinski was
so unprepared and the trial Court left him with no other viable alternative.
Breczinski did not try to hide his lack of preparation. On the contrary, as
described in detail above, he candidly told the trial judge that he could not attest
that he was prepared because he did not have the final written report of the
investigator whom he had hired on Pouncy’s behalf. Breczinski acknowledged
that he simply did not know whether his investigator had completed his review of
some courts outside of the Sixth Circuit have tested a defendant’s waiver of the
right to counsel against Johnson rather than Faretta. See, e.g., Pazden v. Maurer,
424 F.3d 303, 318-20 (3d Cir. 2005). But the federal courts uniformly agree that
Supreme Court precedent clearly establishes that a waiver of counsel must be truly
voluntary. Because the Sixth Circuit has concluded that Faretta “set” the standard
with respect to waivers of the right trial counsel, see Fowler, supra, this Court has
analyzed the waiver issue here through the lens of Faretta and has evaluated the
Michigan Court of Appeals’ decision against Faretta. The result would be
precisely the same if the Court viewed the waiver through the Johnson lens and
evaluated the Michigan Court of Appeals’ decision against Johnson.
24

(and follow-up on) the large volume of material and the “number of leads” that
Breczinski had provided to him. Critically, the unfinished investigation did not
relate to some tangential matter; it related to the primary defenses that Pouncy
wished to raise at trial: alibi and mistaken identity.
Breczinski’s serious lack of preparation is likewise apparent from other
aspects of the record. Consider Breczinski’s response to the prosecution’s motions
in limine.

When the prosecution moved to admit a recording of the alleged

telephone threat by Pouncy against a witness, Breczinski offered no opposition.
(See 1-24-2006 Trial Tr., ECF #8-7 at 34, Pg. ID 489.) Breczinski had nothing to
say because he wrongly assumed that the prosecution had “apparently traced” the
call to Pouncy. (Id at 31-32, Pg. ID 486-87.)

But even after the prosecutor

explained that “there were no traces done,” Breczinski still failed to offer any
objection to the recording’s admission.

(Id. at 33-34, Pg. ID 488-89.)

Had

Breczinski taken the time before trial to directly ask the prosecutor about whether
the allegedly-threatening call had been traced, he would have discovered that there
had been no trace and could have positioned himself to “jump up and down” in
opposition to admission of the recording (as he told the trial court he would have
done). Instead, Breczinski did nothing. Similarly, Breczinski offered essentially
no opposition to the prosecution’s motion to admit other acts evidence under MRE
404(b).

25

Moreover, Breczinski never disputed Pouncy’s repeated assertions that
Breczinski never spent more than fifteen minutes speaking with him until the
morning of trial. That omission is significant because the trial judge specifically
asked Breczinski to respond to Pouncy’s claimed lack of communication. (See id.
at 7, Pg. ID 462.) Breczinski said only that he had visited Pouncy a number of
times – a point Pouncy acknowledged – and that during these visits, Pouncy had
mentioned a possible alibi defense. (See id. at 7-11, Pg. ID 462-66.) Breczinski
gave no indication that he spent the necessary time with Pouncy to carefully
explore the facts of the case, anticipated witness testimony, and/or important
strategic issues and decisions.4
Simply put, there can be no serious dispute on this record that Breczinski
was entirely unprepared for trial. Indeed, during the most recent hearing in this
case, the Court pressed counsel for Respondent to identify evidence in the record
that Breczinski was prepared for trial, and counsel could say no more than that
Breczinski “was there” and “making arguments.” (11-12-2015 Tr., ECF #73 at 24,
28-29, Pg. ID 6720, 6724-25.)

Counsel for Respondent could not say that

Breczinski’s arguments evidenced any real preparation; in fact, they did not.

4

Breczinski’s gross miscalculation of Pouncy’s sentencing guidelines range further
bespeaks his lack of preparation. While a pre-trial guidelines calculation is
necessarily something of an estimate (because the final calculations depend, in
part, upon the evidence presented at trial), that Breczinski’s calculations were so
far off suggests a lack of familiarity with the relevant sentencing facts.
26

Moreover, being prepared requires far more than just being present and speaking.
As the Supreme Court has explained:
That a person who happens to be a lawyer is present at
trial alongside the accused . . . is not enough to satisfy the
constitutional command. The Sixth Amendment
recognizes the right to the assistance of counsel because
it envisions counsel's playing a role that is critical to the
ability of the adversarial system to produce just results.
An accused is entitled to be assisted by an attorney,
whether retained or appointed, who plays the role
necessary to ensure that the trial is fair.
Strickland, 466 U.S. at 685.
The bottom line is this: on the morning of trial, Pouncy had every reason to
believe that Breczinski was not prepared to defend against the very serious charges
Pouncy was facing. Pouncy had heard Breczinski admit that he did not have the
results of the critical investigation into Pouncy’s primary defenses; Pouncy had
seen Breczinski misunderstand, and otherwise offer no real opposition to, motions
in limine that had serious adverse consequences for Pouncy; and Breczinski had
not meaningfully communicated with Pouncy prior to the start of trial. Under
these circumstances, Pouncy fairly concluded that proceeding with Breczinski as
his counsel was not a reasonable course of action.
Despite Pouncy’s concerns about Breczinski, Pouncy did not want to
represent himself. He repeatedly asked the trial judge to appoint new counsel for
him, and he even offered to retain counsel at his own expense. And he backed

27

away from his first few requests to take over his own defense. He reluctantly
began representing himself only after (1) he heard Breczinski confess to being
unprepared and saw the manifestation of Breczinski’s unpreparedness and (2) the
trial court blocked his efforts to obtain a new lawyer. In Pouncy’s words, he chose
to present his own defense only because “I don’t have an attorney right now.” (124-2006 Trial Tr., ECF #8-7 at 232, Pg. ID 688.)
Under all of these circumstances, Pouncy’s waiver of his right to be
represented by counsel at trial was plainly not voluntary. Indeed, the Sixth Circuit
and many other federal courts have held that a waiver of the right to trial counsel is
involuntary where, as here, the defendant was forced to choose between
unprepared counsel and representing himself. See, e.g., Brigano, 470 F.3d at 6445;
Pazden, 424 F.3d at 316-20.6 Because Pouncy’s waiver was involuntary, it plainly
did not satisfy Faretta.

5

The Sixth Circuit in Brigano also noted that the state trial court had failed to
explain the dangers of self-representation to the petitioner in that case. Here, in
contrast, the state trial judge did make some statements to Pouncy about the danger
of self-representation. But Brigano remains highly relevant notwithstanding this
distinction. Brigano underscores that forcing a criminal defendant to choose
between unprepared counsel and self-representation is a clear and independent
violation of Faretta warranting habeas relief.
6

In addition to the Third and Sixth Circuits, the United States Court of Appeals for
the Seventh Circuit has also explained:
A clear choice between two alternative courses of action
does not always permit a petitioner to make a voluntary
28

The Michigan Court of Appeals decision upholding Pouncy’s waiver was an
unreasonable application of Faretta.7 That court offered the following explanation
as to why it found Pouncy’s waiver sufficient:
As can be seen [from the colloquies between Pouncy and
the trial judge], this is not a case where defendant
‘steadfastly rejected the option of proceeding to trial
without the assistance of counsel,’ Russell, supra at 192,
by repeatedly insisting upon the appointment of counsel.
Rather, defendant repeatedly raised the issue of selfrepresentation. After defendant’s initial inquiry about
his entitlement to represent himself, several exchanges
transpired between defendant and the trial court
regarding whether he actually wished to represent
himself. But after each exchange, the trial court erred on
decision. If a choice presented to a petitioner is
constitutionally offensive, then the choice cannot be
voluntary. A defendant may not be forced to proceed
with incompetent counsel; a choice between proceeding
with incompetent counsel or no counsel is in essence no
choice at all. The permissibility of the choice presented
to the petitioner . . . depends on whether the alternative to
self-representation offered operated to deprive him of a
fair trial.
Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980) (internal citations omitted).
7

The Michigan Court of Appeals did not cite Faretta, but it did purport to be
applying the federal constitutional standard to Pouncy’s waiver of counsel claim.
The Michigan Court of Appeals found the federal standard in the Michigan
Supreme Court’s decision in People v. Russell, 684 N.W.2d 745 (Mich. 2004). See
Pouncy, 2008 WL 9869818, at *5. In Russell, the Michigan Supreme Court cited
its earlier decision in People v. Anderson, 247 N.W.2d 857 (Mich. 1976), as the
model for Michigan’s application of the federal waiver standard, see Russell, 684
N.W.2d at 750-51, and Anderson cites Faretta as supplying the federal test for
waiver of trial counsel. See Anderson, 247 N.W.2d at 859-60. Thus, the Michigan
Court of Appeals effectively judged Pouncy’s waiver against the Faretta standard.
29

the side of ruling against waiver. During the last
exchange, defendant confirmed that he understood the
risks associated with self-representation and ultimately
indicated that he was ready to proceed. Only then did the
trial court permit defendant to represent himself.
Pouncy, 2008 WL 9869818, at *8 (emphasis added). This analysis entirely fails to
account for the context in which Pouncy “raised the issue of self-representation” –
when confronted with the prospect of proceeding to trial on several life-maximum
offenses with admittedly and obviously unprepared counsel.

Likewise, the

analysis ignores that Pouncy did, indeed, ask the trial court repeatedly to appoint
substitute counsel for him and/or to allow him to retain counsel. In short, when
conducting a Faretta analysis, “context matters,” Jones v. Bell, 801 F.3d 556, 565
(6th Cir. 2015), and because the Michigan Court of Appeals did not account for the
Hobson’s choice that Pouncy faced when he decided to represent himself, its
holding that Pouncy voluntarily waived his right to counsel is an unreasonable
application of Faretta. See Brigano, 470 F.3d at 644.
The Michigan Court of Appeals also noted that Pouncy reaffirmed his
waiver at “every subsequent proceeding” following his initial waiver, and the court
appeared to suggest that these restatements of the waiver enhanced its validity.
Pouncy, 2008 WL 9869818, at *9. But every time Pouncy restated his waiver, he
was facing the very same impossible choice between representing himself and

30

proceeding with Breczinski. Thus, Pouncy’s restatement of the waiver does not
cure the involuntariness problem.
In one other section of its Opinion – one not dealing with the Faretta issue –
the Michigan Court of Appeals arguably suggested that (1) Breczinski had
completed his preparation with respect to investigating Pouncy’s primary defenses
and (2) his preparation was sufficient. The appellate court noted that “Breczinski
hired a private investigator for the specific purpose of tracking down and
interviewing potential alibi witnesses” and that “[t]he investigation apparently
revealed no legitimate potential for an alibi defense.” Pouncy, 2008 WL 9869818,
at *19. But the state appellate court’s conclusion concerning the results of the
investigation cannot be squared with the record as it existed when Pouncy decided
to represent himself. At that time, Breczinski reported that he did not know the
final results of the investigation; he knew only from the investigator’s initial oral
report that the investigator had come up with “nothing” on “some” of the leads that
he was pursuing. (1-24-2006 Trial Tr., ECF #8-7 at 3-4, Pg. ID 458-59; emphasis
added). That is precisely why Breczinski could not, and did not, assure the trial
court that he was prepared to proceed to trial. (See id.) Thus, if the Michigan
Court of Appeals concluded that Pouncy did not face a Hobson’s choice because
Breczinski was sufficiently prepared with respect to Pouncy’s primary defenses,
that conclusion was contrary to the record and was unreasonable.

31

Pouncy is entitled to habeas relief. See Brigano, 470 F.3d at 644 (affirming
grant of habeas relief on ground that waiver did not comply with Faretta where
petitioner “was attempting to deal with appointed counsel that had stated he was
unprepared to go to trial and a trial court judge intent on going forward with trial
regardless of appointed counsel's preparedness”); Pazden, 424 F.3d at 319
(remanding for entry of habeas relief where defendant was forced to choose
between representing himself and proceeding with unprepared counsel).8
VI.
Pouncy raised a number of other claims for relief in his Petition and his
Memorandum of Law in Support of the Petition (see ECF #9-1), and he also
moved to amend the Petition to include an additional claim for ineffective
assistance of trial counsel. (ECF #60 at 32-33, Pg. ID 6451-52.) Given the Court’s
decision to grant habeas relief on the ground addressed above, the Court sees no
need to address Pouncy’s remaining claims.

8

The Faretta waiver error in this case is not subject to harmless error analysis.
The Sixth Circuit in Brigano, 470 F.3d at 644, and in Fowler, 253 F.3d at 250,
granted habeas relief in the face of such an error without conducting a
harmlessness review. See also United States v. Forrester, 512 F.3d 500, 508 (9th
Cir. 2007) (quoting United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004)
(“[T]he failure to meet the requirements for a valid Faretta waiver constitutes per
se prejudicial error, and the harmless error standard is inapplicable.”)); United
States v. Allen, 895 F.2d 1577, 1580 (10th Cir. 1990) (concluding that harmless
error analysis does not apply to waiver of counsel cases).
32

VII.
IT IS HEREBY ORDERED that a writ of habeas corpus is
CONDITIONALLY GRANTED to Pouncy. Unless the State takes action to
afford Pouncy a new trial within ninety (90) days of the date of this Opinion and
Order, the State of Michigan shall release Pouncy unconditionally from custody.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: January 11, 2016
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on January 11, 2016, by electronic means and/or ordinary
mail.
s/Amanda Chubb
Case Manager
[phone]

33