Glass v. Pineda

Filing 17

ORDER adopting Report and Recommendations re 13 Report and Recommendations.. Signed by Senior Judge Peter C. Economus on 9/29/2014. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TIMOTHY M. GLASS,
Petitioner,
v.
BRIAN COOK, WARDEN,
Respondent.

Case No. 2:13-cv-00284
Judge Peter C. Economus
Magistrate Judge King
MEMORANDUM OPINION AND ORDER

On August 7, 2014, the Magistrate Judge a Report and Recommendation, recommending
that the petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 be denied and that this
case be dismissed. (ECF No. 13.) Petitioner, proceeding with the assistance of counsel, has
objected to that recommendation. (ECF No. 16.) Pursuant to 28 U.S.C. § 636(b), this Court has
conducted a de novo review. For the reasons that follow, Petitioner’s Objection is
OVERRULED. The Report and Recommendation is ADOPTED and AFFIRMED. This case is
hereby DISMISSED.
Petitioner was convicted, after a jury trial at which he represented himself, of ten counts
of pandering sexually oriented matter involving a minor, and four counts of illegal use of a minor
in a nudity oriented material or performance. 1 Petitioner alleges in this case that the state trial
court violated his rights under the Sixth and Fourteenth Amendments to the United States
Constitution when it failed to assure that petitioner understood the dangers and disadvantages of
representing himself at trial. As a consequence, Petitioner contends, he did not make a knowing,
intelligent and voluntary waiver of his right to the assistance of counsel. The Magistrate Judge
concluded that the record “does not support Petitioner’s claim that the state appellate court –
when it rejected petitioner’s claim that he did not knowingly, intelligently or voluntarily waive
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Petitioner was not convicted on four other counts against him.

his right to counsel – unreasonably applied or contravened federal law, or based its decision on
an unreasonable determination of the facts in light of the evidence.” (ECF No. 13. at 19-20.)
Petitioner objects to that conclusion and contends that both the state appellate court and the
Magistrate Judge misapplied Faretta v. California, 422 U.S. 806 (1975), by presuming
Petitioner’s waiver of his right to counsel without support in the record. Petitioner specifically
complains that the Magistrate Judge improperly relied on Swiger v. Brown, No. 02-3907, 2004
WL 187557 (6th Cir. Jan. 27, 2004), and Dallio v. Spitzer, 343 F.3d 533, 561-62 (2nd Cir. 2003),
to reduce the standard established in Faretta for establishing a knowing and intelligent waiver of
the right to counsel; he also argues that his conduct prior to and during his trial did not support a
finding of a constitutionally sound waiver of his right to counsel. 2
This Court is not persuaded by these arguments. A criminal defendant must be permitted
the right of self-representation, “for it is he who suffers the consequences if the defense fails.”
Faretta, 422 U.S. at 820. “An unwanted counsel ‘represents' the defendant only through a
tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation,
the defense presented is not the defense guaranteed him by the Constitution, for, in a very real
sense, it is not his defense.” Id. at 821.
However, because a criminal defendant who chooses to represent himself necessarily
relinquishes the benefits of representation by counsel, his waiver of the right to counsel must be
knowing and intelligent. Id. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938); Von
Moltke v. Gillies, 332 U.S. 708, 723-24 (1948)). “He should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that ‘he knows what he is

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As noted by the Magistrate Judge, the record includes evidence that Petitioner had refused to cooperate with the
two attorneys appointed to represent him. (ECF No. 13 at 16-18.) In his closing argument, Petitioner advised the
jury that he regretted his decision to represent himself..

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doing and his choice is made with eyes open.’” Id. (citing Adams v. United States ex rel.
McCann, 317 U.S. 269, 279 (1942)). The Supreme Court has prescribed no particular formula or
script to be read to a defendant who expresses his wish to proceed without counsel, Iowa v.
Tovar, 541 U.S. 77, 88 (2004), and there is “no sacrosanct litany for warning defendants against
waiving the right to counsel.” United States v. Jones, 421 F.3d 359, 363 (5th Cir. 2005). The
information required to make a knowing and intelligent waiver of the right to counsel is
determined from the facts and circumstances of each case. See Tovar, 541 U.S. at 88. A
reviewing court must look at the entire record to determine whether the defendant’s waiver of his
right to counsel was constitutionally sufficient. King v. Bobby, 433 F.3d 483, 492 (6th Cir. 2006).
For the reasons already well detailed in the Report and Recommendation, this Court
agrees that the record readily supports a conclusion that Petitioner exercised his right to selfrepresentation “with eyes open.” The fact that Petitioner may now regret his decision is not
grounds for granting habeas corpus relief.
Upon careful consideration and review of the entire record, the Court is not persuaded
that Petitioner has met his burden of showing that the state court’s decision contravened or
unreasonably applied federal law, or based its decision on an unreasonable determination of the
facts in light of the evidence that was presented. Petitioner’s Objection (ECF No. 16), is
therefore OVERRULED. The Report and Recommendation (ECF No. 13), is ADOPTED and
AFFIRMED. This action is hereby DISMISSED.
The Clerk is DIRECTED to enter FINAL JUDGMENT.
Petitioner requests a certificate of appealability. Where, as here, a claim has been denied
on the merits, a certificate of appealability may issue only if the petitioner “has made a
substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This standard

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is a codification of Barefoot v. Estelle, 463 U.S. 880 (1983). Slack v. McDaniel, 529 U.S. 473,
484 (2000). To make a substantial showing of the denial of a constitutional right, a petitioner
must show “that reasonable jurists could debate whether. . . the petition should have been
resolved in a different manner or that the issues presented were “‘adequate to deserve
encouragement to proceed further.’” Id. (citing Barefoot, 463 U.S . at 893, and n. 4). The Court
is persuaded that Petitioner has met this standard. The following issue is therefore CERTIFIED
for appeal:
Did Petitioner knowingly and intelligently waive his constitutional
right to counsel in electing to represent himself at trial?
Petitioner, who paid the original filing fee in this case, also asks that he be granted leave
to proceed in forma pauperis on appeal. Because the procedures prescribed by the Prison
Litigation Reform Act are not applicable to appeals in habeas corpus matters, see Kincade v.
Sparkman, 117 F.3d 949 (6th Cir. 1997), the issue is simply whether petitioner can afford the
filing fee. However, a habeas corpus petitioner who paid the original filing fee and who wishes
to pursue an appeal without payment of fees or costs must nevertheless file a motion supported
by an appropriate affidavit. See Fed. R. App. P. 24(a). Petitioner has not submitted an
appropriate affidavit of indigency. Accordingly, Petitioner’s request to proceed in forma
pauperis on appeal is DENIED without prejudice to renewal upon the filing of a proper motion
and affidavit.

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