Spates v. Clarke
Filing
27
FINAL ORDER adopting Report and Recommendations re 23 Report and Recommendations, 8 Motion to Dismiss; and 17 Motion for Declaratory Judgment; ORDERED that the petition be GRANTED as to Ground (3) of the petition, to the extent that Court remand s the case to the Circuit Court of the City of Virginia Beach for a new trial within 180 days of this Court'sfinal judgment order; that Petitioner remain in custody of the Department of Corrections until his new trial, but if the Circuit Court f ails to re-try Petitioner within 180 days of this Court's final judgment order, that Petitioner be released from custody at the end of the 180 days; that, with respect to Grounds (1) and (2) of the petition, the petition is DENIED; that Petitioner's 17 Motion for Declaratory Judgment is DENIED; noting appeal procedure. Signed by District Judge Raymond A. Jackson and filed on 8/14/2012. Copy to Petitioner as directed.(rsim, )
FILED
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGI
AUG 1 4 2012
Norfolk Division
CLERK, US DISTRICT COURT
NORFOLK, VA
MACEO SPATES,
Petitioner,
v.
ACTION NO. 2:1 Icv284
HAROLD W. CLARKE, Director of the
Virginia Department of Corrections,
Respondent.
FINAL ORDER
This matter was initiated by petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The petition alleges violation of federal rights pertaining to Petitioner's convictions for
abduction, rape, unlawful wounding during the commission of a felony, and petit larceny on May
8,2007, in the Circuit Court of the City of Virginia Beach, as a result of which he was sentenced
to serve thirty-four years in the Virginia penal system.
The matter was referred to a United States Magistrate Judge pursuant to the provisions of
28 U.S.C. § 636(b)(l)(B) and (C) and Rule 72 of the Rules of the United States District Court for
the
Eastern
District
of
Virginia
for
report
and
recommendation.
The
Report
and
Recommendation, filed June 5, 2012, recommends dismissing in part and granting in part the
petition. ECF No. 23. Each party was advised of his right to file written objections to the findings
and recommendations made by the Magistrate Judge.
On June 19, 2012, the Court received
Respondent's Objections to the Report and Recommendation. ECF No. 26. Petitioner has not
responded to Respondent's Objections, and the deadline for filing a response has passed.
Respondent alleges that the Magistrate Judge erroneously recommends relief as to
Ground (3) of the petition,1 in that he improperly (1) considered evidence Petitioner did not
present to the state court, (2) failed to defer to the state court's dismissal of the same claim on the
merits when Petitioner presented it in the state court, and (3) relied on cases not decided by the
United States Supreme Court to hold that the state court's decision was contrary to "clearly
established federal law" under 28 U.S.C. § 2254(d)(2). Resp't's Objections 1-2, ECF No. 26.
As to objection (1), Respondent claims that the Magistrate Judge erred by improperly
considering a pre-trial hearing transcript, as Petitioner did not provide this transcript to the
Virginia Court of Appeals when he filed a direct appeal with that court in 2008. Resp't's
Objections 2. Respondent argues that a federal court is barred from considering any "evidence"
that the state court did not have before it for review and, accordingly, based on the evidence that
was actually present on direct appeal, the Court of Appeals decision must be upheld. Id. The
Court rejects this objection.
First, the Court finds that Respondent's reliance on Cullen v. Pinholster. 131 S. Ct. 1388
(2011),2 is misplaced, as Respondent incorrectly characterizes the pre-trial hearing transcript as
"new evidence." Respondent contends that the Magistrate Judge erred in considering the
February 12, 2007 pre-trial hearing transcript, which contains a colloquy conducted by Judge
Shockley regarding Petitioner's waiver of the right to counsel. Respondent asserts that the
1 The Magistrate Judge recommends granting relief only as to Ground (3) of Spates' federal habeas petition, in
which he alleges the Court of Appeals of Virginia erred by affirming the trial court's refusal to afford Petitioner his
right to counsel after requesting counsel numerous times before trial. Report and Recommendation 4, ECF No. 23.
2 The Cullen case addressed a habeas petitioner's ineffective assistance of counsel claim. The petitioner's habeas
claim was denied at the state level. Cullen. 131 S. Ct. 1396. The petitioner then filed a federal habeas petition,
asserting an additional allegation that counsel failed to gather mitigation evidence. Id The district court granted an
evidentiary hearing, the results of which were used by the district court in determining that the petitioner was denied
effective assistance of counsel. Id. at 1398. The United States Supreme Court found that reliance on this evidence
was improper, as it was only first gathered after the state court denied his habeas petition. Id In contrast, the
information of the pre-trial hearing transcript at issue in the instant case was in fact gathered and presented at the
state court level.
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federal court may not consider any "new evidence presented at the federal district court, and not
to the state court whose decision is being challenged" Resp't's Objections 2. Despite
Respondent's classification of the transcript, it is in fact a part of the state court record, which
consists of the "official report of the proceedings in a case, including the filed papers, verbatim
transcript of the trial or hearing (if any), and tangible exhibits." Yeager v. United States, 557
U.S. 110, 121 (citing Black's Law Dictionary 1301, 8th ed. 2004). That the pre-trial hearing
transcript was only typed up and prepared on January 17, 2012, pursuant to an Order from this
Court (ECF No. 15), does not make the contents of this transcript new evidence, but merely an
erroneously unexamined part of the state court record. The content of the transcript was an
available part of the record and should have been prepared and reviewed by the Court of Appeals
on Petitioner's direct appeal.
Accordingly, the Court rejects this objection and finds that
Respondent misidentified the pre-trial hearing transcript as new evidence, rather than as part of
the state court record.
As to objection (2), Respondent argues that the Virginia Court of Appeals' finding that
Petitioner validly waived counsel "cannot be said to be unreasonable," and further contends that
the Magistrate Judge failed to appropriately defer to the state court's dismissal of Petitioner's
Sixth Amendment claim. Resp't's Objections 1, 6. In arguing that the state court's decision was
reasonable, Respondent relies heavily on the written waiver of counsel, signed by Petitioner and
certified by Judge Shockley on April 23, 2007. Respondent argues it was not unreasonable for
the Court of Appeals to rely on this written waiver as presumptive evidence of a valid and
knowing waiver. IcL The written waiver indicates Petitioner "was advised of the charges against
him, of the potential punishment he faced, and of his right to be represented by council.. . [T]he
form [also] indicatejs] [Petitioner] was subject to oral examination and was advised of his rights,
understood his rights, and 'knowingly, voluntarily and intelligently waived his rights" to be
represented by counsel. Per Curiam Opinion 4-5, Spates v. Commonwealth, CR06-130 (Va. Ct.
App. Sept. 10, 2008). Respondent asserts that the Virginia Court of Appeals' decision cannot be
rendered unreasonable, as "nothing in the record before the Court of Appeals of Virginia in any
way refutes the trial court's certification." Id. at 7.
The Court rejects this objection and agrees
with the Magistrate Judge's finding that the Court of Appeals' decision that Petitioner had
validly waived his right to counsel was "based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding." 28 U.S.C. § 2254(d)(2).
The record, including the contents of the February 12, 2007 pre-trial hearing transcript,
clearly shows Petitioner's right to counsel, as established by the United States Supreme Court in
Faretta v. California, 422 U.S. 806 (1975), was violated, and it was unreasonable for the Virginia
Court of Appeals to decide otherwise on direct appeal. The Sixth Amendment provides that in
"all criminal prosecutions, the accused shall enjoy the right... to have the assistance of counsel
for his defence." U.S. Const, amend VI. Though only one of the accused's fundamental
procedural rights, it is "by far the most pervasive, for it affects his ability to assert any other
rights he may have." Penson v. Ohio, 488 U.S. 75, 1988). In Faretta. the Supreme Court
recognized that a defendant also has a reciprocal right to proceed without counsel. This right to
self-representation, however, is not automatic or without limit, as the trial court must make
defendant aware of the "dangers and disadvantages of self-representation," so that the record
may show he "knows what he is doing and his choice is made with eyes wide open." Faretta, 422
U.S. at 835. In order for a trial court to allow a defendant to represent himself, the defendant
must first "voluntarily and intelligently elect" to do so. Id. Moreover, the right is not indefinite,
as the trial court may terminate the self-representation right if necessary. IdL at 834. Because the
decision to waive the right to counsel is a grave one, the Supreme Court has instructed courts to
"indulge in every reasonable presumption against waiver" of the right to counsel. Brewer v.
Williams. 430 U.S. 387,404 (1977)..
The Court agrees with the Magistrate Judge's finding that Judge Shockley made
insufficient inquiry as to whether Spates' wish to represent himself was knowing and intelligent.
Report and Recommendation 13. Judge Shockley made no inquiry into the educational
background or capabilities of the defendant. She further made the blanket, and incorrect assertion
that Petitioner had the "absolute right" to represent himself. Pre-Trial Hr'g Tr. 11:10-11, ECF
No. 16-1; See Faretta. 422 U.S. at 835 (stating that the right to self-representation is not without
limit). Additionally, Judge Shockley failed to explain the charges and possible punishments,
which included life imprisonment, Petitioner faced prior to accepting his waiver of the right to
counsel. Consequently, Petitioner engaged in self-representation without being warned of the
"dangers and disadvantages" of self-representation: that he may be sentenced to life in prison
absent the background or capabilities needed to successfully defend himself at trial. Faretta. 422
U.S. at 835.
Moreover, whether the trial court satisfied the duties to ensure an intelligent and
voluntary waiver of the right to counsel, as required by Faretta. hinged upon the actual review of
the colloquy conducted by Judge Shockley at the pre-trial hearing. The Court of Appeals did not
partake in this necessary review, but concluded that "the record includes ample evidence that
[Petitioner] freely and voluntarily waived his right to be represented by counsel at trial." Per
Curiam Opinion 4-5, Snates v. Commonwealth. CR06-130 (Va. Ct. App. Sept. 10, 2008). The
"ample evidence" cited by the Court of Appeals consists entirely of the contents of the April 23,
2007 written waiver. Notably, Petitioner indicated at trial, the transcript of which was prepared
for and referenced by the Court of Appeals in denying Petitioner's direct appeal, that Judge
Shockley did not explain the ramifications and consequences of signing this waiver,
underscoring the vital importance of an actual review of the colloquy. Trial Tr., Vol. 1,
Commonwealth of Virginia v. Spates. CR06-130, 27:7-28:5. In light of the requirements of
Faretta, it was unreasonable for the Court of Appeals to rely only on the written waiver and not
review the contents of the colloquy itself in finding that Petitioner voluntarily and intelligently
waived his right to counsel.
Due to Judge
Shockley's inadequate colloqu y, the Court cannot conclude Petitioner
voluntarily and intelligently waived his right to counsel. The Court also cannot find that "ample
evidence" existed for the Court of Appeals to make this conclusion without review of the
colloquy on direct appeal. Per Curiam Opinion 5, Spates v. Commonwealth. CR06-130 (Va. Ct.
App. Sept. 10, 2008). Accordingly, the Court agrees with the Magistrate Judge's finding that the
Court of Appeals' decision that Petitioner freely and voluntarily waived his rights to be
represented by a lawyer was "contrary to ... clearly established law," 28 U.S.C. § 2254(d)(l), as
established in Faretta.
Respondent also fails to address statements made by Petitioner prior to the start of trial,
which took place after the February 12, 2007 colloquy and signing of the April 23, 2007 written
waiver. That is, Petitioner's subsequent statements made on record to Judge Padrick on May 7,
2007, immediately prior to the start of trial, indicate a clear rejection, of any prior inklings of
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wishing to waive the right to counsel. Accordingly, Petitioner was forced to involuntarily engage
in self-representation, in direct conflict with the principles espoused by Faretta.
Prior to the start of trial on May 7, 2007, Judge Padrick asked Petitioner if he was
representing himself. Trial Tr., Vol. 1, Commonwealth of Virginia v. Spates. CR06-130, 4:11-
12.
Petitioner responded: "I was representing myself, but I don't know. My counselor was
supposed to show up today. . . I obtained counsel. Ifound and retained counsel." Trial Tr. 4:1315, 17-18 (emphasis added).
Petitioner's retained counsel failed to appear at trial, and Judge
Padrick indicated that no continuance would be given to Petitioner. Trial Tr. 5:4. Petitioner was
then allowed to speak with Janee Joslin, former attorney for Petitioner, who was present as
stand-by counsel. Trial Tr. 16:1. After speaking with Joslin, Petitioner informed Judge Padrick
that, as he told Joslin, he did not think he could represent himself. Trial Tr. 17:18-20. Judge
Padrick merely asserted that, despite Petitioner's clear wish to have counsel aid him at his trial,
Petitioner was required to proceed and would be representing himself. Trial Tr. 18:10-11, 16-17.
Judge Padrick proceeded with arraignment, asking Petitioner if he was ready for trial, to which
Petitioner again responded that he was not. Trial Tr. 26:16-17. Petitioner continued to assert his
wish to be represented:
THE COURT: Any questions you want to ask me?
DEFENDANT: I mean, I don't - - like I told you, no way I can
represent myself I don't know the procedure, what to do, how to do it;
so I'll be sitting here. That's it. If Ms. Joslin not going to represent me
or not going to wait for other counsel, there's nothing else I can do.
THE COURT: Well, like I said sir, I was not here - DEFENDANT: But when I signed - -
THE COURT: - - when you signed this waiver that you signed - 7
DEFENDANT: Uh-huh.
THE COURT: - - on April 23rd where you waived your right to an
attorney and you wished to proceed pro se. And I'm sure Judge
Shockley went over all the ramifications with you.
DEFENDANT: No.
THE COURT: She didn't?
DEFENDANT: No, sir. I didn 't know that I was signing the waiver to
represent myselfpro se.
Trial Tr. 27:7-28:5 (emphasis added).
The Virginia Court of Appeals did, in fact, have this trial transcript available for review
when denying Petitioner's direct appeal. Rather than considering Petitioner's clear rejection of
any prior waiver of the right to counsel, the Virginia Court of Appeals relied solely on the April
23, 2007 written waiver in concluding that there was "ample evidence that [Petitioner] freely and
voluntarily waived his right to be represented by counsel at trial." Spates v. Commonwealth of
Virginia. CR06-130 (Va. Ct. App. Sept. 10, 2008).
The Court agrees with the Magistrate Judge's finding that Petitioner's statements make
overtly clear his wish to be represented by counsel at trial. Report and Recommendation 15-16.
The Court, therefore, also agrees with the Magistrate Judge's finding that the decision of the
Court of Appeals of Virginia was not only "based on an unreasonable determination of the facts
in light of the evidence presented in the state court proceeding," 28 U.S.C. § 2254(d)(2), but was
also "contrary to ... clearly established Federal law," 28 U.S.C. § 2254(d)(l), as established in
Faretta v. California.
Respondent contends that the Magistrate Judge failed to exhibit the
proper level of deference to the Virginia Court of Appeals. However, though a federal court is to
"attend to every state-court judgment with utmost care. . . . [i]f, after carefully weighing all the
reasons for accepting a state court's judgment, a federal court is convinced that a prisoner's
custody . . . violates the Constitution, that independent judgment should prevail." Williams v.
Taylor. 529 U.S. 362, 389 (2000). Indeed, "errors that undermine the confidence in the
fundamental fairness of the state adjudication certainly justify the issuance of the federal writ."
Id, at 375.
As to objection (3), Respondent argues that the Magistrate Judge erred in relying upon
"inapplicable circuit precedent to decide that the decision of the Virginia Court of Appeals was
contrary to clearly established federal law." Resp't's Objections 9. The Court rejects this
contention as meritless.
First, the Court agrees with the Magistrate Judge's finding that the decision of the
Virginia Court of Appeals "resulted in a decision that was contrary to clearly established federal
law," 28 U.S.C. § 2254 (d)(l), as established in Faretta v. California. 422 U.S. 806 (1975). ECF
No. 23, at p. 18. Faretta did not enunciate a specific test that a court must use in assessing the
validity of a waiver of the right to counsel. The case merely set out a generalized standard that a
trial court must make defendant aware of the "dangers and disadvantages of self-representation,"
so that the record may show he "knows what he is doing and his choice is made with eyes wide
open." Faretta. 422 U.S. at 835. In order for a trial court to allow a defendant to represent
himself, the defendant must first "voluntarily and intelligently elect" to do so. Id.
Based on the record, it is abundantly clear that, contrary to clearly established federal
law, as established by the Supreme Court of the United States in Faretta. Petitioner was not made
aware of the "dangers and disadvantages of self-representation," Petitioner did not choose to
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represent himself "with eyes wide open," and Petitioner did not "voluntarily and intelligently
elect" to represent himself. See Faretta. 422 U.S. at 835. To the contrary, the pre-trial hearing
colloquy was insufficient to ensure that Petitioner was entering into self-representation with open
eyes. Moreover, the trial transcript shows Petitioner clearly and unequivocally insisted on being
represented by counsel during his trial. Trial Tr. 4:11-28:5.
Petitioner explained that he had
retained counsel, who was not present, but was denied a continuance, which would have allowed
counsel to represent him at trial. Trial Tr. 4:13-18, 5:4. Petitioner informed the trial judge on at
least three occasions prior to the start of trial that he could not represent himself. Trial Tr. 17:1820, 27:16-17, 27:7-28:5. Additionally, Petitioner stated that Judge Shockley did not inform him
of the ramifications of waiving his right to counsel prior to his signing the written waiver of
counsel. Trial Tr. 27:22-28:7.
He further stated that he did not understand when he signed the
written waiver that he would have to represent himself at trial. Trial Tr. 28:5. The record could
not be more evident that, at the time of his trial, Petitioner did not wish to represent himself.
Further, the evidence shows that when he signed his written waiver, he did not do so voluntarily
and intelligently with eyes wide open.
Consequently, the state court's finding that Petitioner
validly waived his right to counsel is contrary to federal law, as established by Faretta.
Secondly, "rules of law may be sufficiently clear for habeas purposes even when
expressed in terms of a generalized standard rather than a bright line rule." Williams, 529 U.S. at
382. This definition makes clear that a general rule that requires case-by-case application can
constitute clearly established law. Id. Therefore, where a Supreme Court holding espouses
merely a general standard, circuit court precedent is helpful in illuminating and interpreting the
general standard to particular factual circumstances and providing evidence of the clarity of the
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law. See Williams. 529 U.S. at 407 (2000) (stating that 28 U.S.C. § 2254(d)(l) also authorizes
federal habeas corpus relief if, under clearly established federal law, a state court has been
unreasonable in applying the governing legal principle to the facts of the case. A state
determination may be set aside under this standard if, under clearly established federal law, the
state court was unreasonable in refusing to extend the governing legal principle to a context it
should have applied).
The Fourth Circuit cases cited by the Magistrate Judge interpret the Faretta holding,
applying Faretta to the facts of the case before them in making their decision as to whether a
valid waiver of the right to counsel existed. See Johnson v. ZerbsL 304 U.S. 458, 464 ("The
determination of whether there has been an intelligent waiver of the right to counsel must
depend, in each case, upon the particular facts and circumstances surrounding that case,
including the background, experience, and conduct of the accused."). Accordingly, the Court
finds Respondent's contention that the Magistrate Judge erred by "repeat[ing] only the Fourth
Circuit's supervisory standards as [a] measure" is meritless.
The Court, having reviewed the record and examined the objections filed by Respondent
to the Report and Recommendation, and having made de novo findings with respect to the
portions objected to, does hereby adopt and approve the findings and recommendations set forth
in the Report and Recommendation filed June 5, 2012.
It is, therefore, ORDERED that the
petition be GRANTED as to Ground (3) of the petition, to the extent that Court remands the case
to the Circuit Court of the City of Virginia Beach for a new trial within 180 days of this Court's
final judgment order. It is further ORDERED that Petitioner remain in custody of the
Department of Corrections until his new trial, but if the Circuit Court fails to re-try Petitioner
11
within 180 days of this Court's final judgment order, that Petitioner be released from custody at
the end of the 180 days. It is further ORDERED that, with respect to Grounds (1) and (2) of the
petition, the petition is DENIED.
Finally, it is ORDERED that Petitioner's Motion for
Declaratory Judgment (ECF No. 17) is DENIED.
The parties may appeal from the judgment entered pursuant to this Final Order by filing a
written notice of appeal with the Clerk of this court, United States Courthouse, 600 Granby
Street, Norfolk, Virginia 23510, within 30 days from the date of entry of such judgment.
The Clerk shall mail a copy of this Final Order to Petitioner and counsel of record for
Respondent.
Raymond AfJackson
United States District Judge
Norfolk, Virginia
August
/^, 2012
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