Moore v. Haviland

531 F.3d 393

John C. MOORE, Jr., Petitioner-Appellee, v. James S. HAVILAND, Warden, Respondent-Appellant.

No. 07-3380.

United States Court of Appeals, Sixth Circuit.

Argued: March 18, 2008.

Decided and Filed: July 15, 2008.

ARGUED:

Jerri L. Fosnaught, Office of the Attorney General, Columbus, Ohio, for Appellant. J. Dean Carro, University of Akron School of Law, Akron, Ohio, for Appellee.

ON BRIEF:

Jerri L. Fosnaught, Office of the Attorney General, Columbus, Ohio, for Appellant. J. Dean Carro, University of Akron School of Law, Akron, Ohio, for Appellee.

Before: BOGGS, Chief Judge; ROGERS, Circuit Judge; SHADUR, District Judge.^*

SHADUR, D.J., delivered the opinion of the court, in which BOGGS, C.J., joined. ROGERS, J. (pp. 404-06), delivered a separate dissenting opinion.

OPINION

SHADUR, District Judge.

James Haviland, in his capacity as Warden, appeals the issuance of a writ of habeas corpus to John Moore ("Moore") by the district court. In the underlying state criminal proceedings that have given rise to Moore's federal habeas action, he sought to represent himself at trial, but his request was never resolved and he was convicted while represented by appointed counsel. After his conviction was upheld on appeal in the state system, he then turned to the federal courts and was awarded a grant of conditional habeas relief. We affirm the judgment of the district court that did so.

I. Moore's State Criminal Trial¹

Moore's criminal trial took place in Cuyahoga County Common Pleas Court in September 2000. On the third day of trial Moore's appointed attorney Robert Tobik ("Tobik") informed the trial judge that Moore was displeased with some aspects of his representation and wanted to address the court. Moore had given Tobik a note for the judge expressing that displeasure, but the note was not delivered. Moore then attempted to speak to the judge in open court, but the judge told him that he was not to engage in conversation with the court in front of the jury. Later, when the jury was on break, the following exchange occurred:

The Court: What's the problem that you can't communicate to the court through your attorney?

Moore: Your Honor, I would like to go on the record to preserve the right to call all witnesses called by the prosecutor. I have many, many questions.

The Court: That's fine. You can call anybody you want.

Moore: I have many questions that I presented to my lawyer to be asked that he did not ask them. Also, I want Fred King and all the codefendants called and put on record whether they take the Fifth or if they—

The Court: You call anybody you want. That's fine.

Moore: Okay. Also, I asked him to have Detective Moran kept out of the room while Detective Maruniak testified because I'm sure there would be inconsistencies between what he was telling us and what I was expecting to get out of Detective Moran.

The Court: There is a motion for separation of witnesses. Anybody who wanted to call a witness here could have the individual subpoenaed and/or announced that they were going to be called and taken out of the courtroom. They leave the courtroom.

Moore: That's my point. Before he got started this morning—see, I noticed in the last one he sat through from beginning to end of Detective Alexander's testimony. From beginning to end Detective Maruniak was present. So, I asked my attorney to make sure that Moran was not present.

The Court: Are you disagreeing with your attorney's tactics?

Moore: I wrote it in a letter to you to make sure you could get it down even if he didn't.

The Court: I haven't seen your letter.

Moore: I know. That was my point. I knew for a fact you hadn't seen it before he—

The Court: You know, look. You have a very experienced trial counsel. Moore: I understand that, but I feel that—

The Court: Hold it. When I'm talking, you don't interrupt me. Moore: I'm sorry.

The Court: He can decide what questions are appropriate and what are not. Not you. You can make suggestions to him. You can urge him to ask questions, but if the question isn't permissible under the rules of evidence or if the question goes into sound tactics of his assessment of the case and what tactics he thinks should be employed, then he is the one who makes that decision as to the specifics of the questions and witnesses. He may have other witnesses in mind to ask the questions or areas to which you are concerned about.

Moore: My question is this, then what do I have to do to retain or to get my right to make a decision on what questions are asked and who's called and not called? What do I have to do right now to do that because I feel that I have some very important questions that are not being asked.

The Court: First of all, you could have hired your own attorney. This attorney has been appointed by the court, by another judge, whoever handled your arraignment. Now, the court appointed in this case an attorney who's handled murder cases, high level cases, felony one cases with great success, who understands the law and is highly respected in the community.

Now, you could have hired your own attorney or you can go pro se and be your own attorney, which is of course a very dubious action for anybody to take, and I personally, in 28 years as an officer of the court, have never seen anybody successful in that regard. In fact, I don't even know of a case in the common pleas Cuyahoga County where someone has been successful at a trial acting as their own attorney pro se. But you always have that option.

Moore: So you are saying that's the only way that I can get all my questions—

The Court: The dream team is occupied here. We can—

Moore: Can I go pro se?

The Court: — get Johnnie Cochran or F. Lee Bailey.

Moore: Can I go pro se then?

The Court: You want to go at this point— Moore: You are leaving me with no other option. You are saying that the only way—

The Court: It is too late for that now. You have already started with an attorney. I don't believe you can go mid trial.

Moore: That's what I'm asking. I asked you what do I have to do.

The Court: I don't think you are in a position to discharge your attorney. You haven't demonstrated any knowledge of the law or willingness to comply with the orders of the court or understanding of the rules of evidence.

Moore: I've tried to get—

The Court: And basic politeness. I will entertain that thought. If you want to put it in writing over the lunch hour, I will instruct the deputies to allow you to have your paper and pencil or pen and allow you to make a written motion if you want to do so over this lunch period and explain to me your plans for trial, your strategy and — not specific, but your general capability of conducting a trial. I don't see any right now. You would not be in a position to conduct the final argument.

Moore: Can I ask you a question?

The Court: You would be waving [sic] final argument because you would be incapable of presenting what a pro se final argument would have to be. It would be, you know, a very dubious action. Again, I have never seen it happen. It's theoretically possible it could happen where it could be successful. It's theoretically possible that you could. It's possible that you can be hit by a meteor.

Moore: A what?

The Court: A meteor, right? Things that come from space and they invade the earth's atmosphere and they hit the earth on a day-by-day basis. I'm told. I have never seen one, though. Not striking anyhow.

Moore: All I'm asking is for a right to call them witnesses. The Court: You should discuss that with your attorney.

Moore: And ask the questions, and I'm asking you—

The Court: You should discuss that with your attorney.

Moore: I have over time and time again, but witnesses keep coming and going and the questions that I need asked are not getting asked.

At that point the court then instructed Tobik to proceed. Tobik then made a motion for separation of witnesses and for the exclusion of Detective Moran from the courtroom. After the court granted the motion, this brief colloquy ensued:

The Court: Okay. All right. We got to handle the other case. Have a nice lunch, everybody.

Moore: Do you need this note for the record that I wrote this morning?

The Court: If you want to give the note, hand it up here. The deputy will give it to me.

Moore then conveyed this earlier-prepared note to the trial court:

Your Honor, John Moore would like to go on record to preserve right to call back any or all witnesses called by Prosecutor. I have many, many Q's that I presented to my lawyer to ask but did not. I also want Fred King and all co-defendants called if prosecutor doesn't. I also ask that Det. Moran be kept out of court since he'll be called as a witness.

During the lunch break Moore wrote a letter to the trial judge as the judge had asked during the extended colloquy quoted earlier, but no mention was made of it by the trial judge or Tobik until the end of the trial day:

Tobik: Your Honor, if I may, Mr. Moore per your instructions prior to I believe it was ou[r] luncheon break prepared a written statement. With the court's permission I will review it with him and we can attach it to the record tomorrow morning.

The Court: All right. You can type it, do whatever you want. Think about it. Ponder over it and we'll talk about it in the morning. Before we start, remind me about it. Okay. Thank you very much.

Before the jury entered the courtroom the next morning, Moore's attorney brought the letter to the court's attention:

Tobik: Your Honor, I have that letter that you were supposed to get yesterday from Mr. Moore.

The Court: Well, I have the first letter he sent. Is there another letter?

Tobik: Correct.

The Court: Okay.

Moore: The one you told me to write during lunch.

The Court: Well, send it up when you find it. That's all. Defense motion for Rule 29 is overruled.

Tobik: Thank you. Can I go out and look to see if we have the—

The Court: Here, let me read it.

Instead of the...