Post-Conviction Relief for Immigrants

 

(A)  Failure to Warn of the Dangers of Self-Representation.  The conviction can be vacated if the defendant was erroneously allowed to proceed in pro per in the prior proceedings because of a failure to warn the defendant of the dangers and disadvantages of self-representation.[30]

 

            While a criminal defendant may choose to represent him- or herself in a criminal proceeding, the waiver of the right to counsel must be knowing and voluntary.[31]

 

A valid waiver requires that the criminal defendant must be aware of the nature of the charges against him or her, the possible penalties, and the dangers and disadvantages of self‑representation, before the decision to waive counsel will be held to be knowing and intelligent.[32]

 

            Federal constitutional law requires the court to conduct a thorough inquiry to determine whether a waiver of counsel was knowingly and intelligently made before allowing a defendant self-representation:[33]

 

In order for a defendant to effectuate a valid waiver of the Sixth Amendment right to counsel, the trial court must undertake a thorough inquiry to ensure that the defendant has made an informed decision.  Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 323, 92 L.Ed. 309 (1948) (plurality opinion).  The standard for waiver in the Ninth Circuit is that the trial court should discuss with the defendant in open court whether the wavier is being made knowingly and intelligently, with an understanding of the charges, the possible penalties, and the dangers of self‑representation.[34]

 

            The record as a whole may not reveal a knowing and intelligent waiver.[35]  In determining this, the courts must consult “the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.”[36]  Where there is no adequate judicial inquiry, the waiver is normally invalid, and the court can find a valid waiver, based on the totality of the circumstances, only as “a limited exception, to be applied in rare cases.”[37]

 

            A waiver of counsel in a misdemeanor case is subject to the same standard as in a felony case, requiring the court to warn the defendant about the dangers and disadvantages of self-representation.[38]  The Ninth Circuit expressly disagreed with a California Supreme Court decision,[39] which concluded that a defendant need not be informed of the dangers and disadvantages of self-representation when pleading to a misdemeanor.  The federal court distinguished an Eighth Circuit decision,[40] the only other federal case found to interpret the meaning of a knowing waiver under 18 U.S.C. § 921(a)(33)(B), in which the defendant had first invoked the right to counsel, then waived it when counsel failed to appear.  The Ninth Circuit held that, in that case, the defendant had initially recognized the usefulness of counsel, but did not do so in the present case.[41]

 

Where a defendant has requested self-representation, but the court has not yet ruled, defense counsel has a professional obligation to continue representing the client, and the conviction will be reversed on grounds of ineffective assistance of counsel where s/he does not do so and prejudice is shown.[42]

[30] People v. Noriega, 59 Cal.App.4th 311 (1997); People v. MacKenzie, 34 Cal.3d 616, 629 (1983); United States v. Balough, 820 F.2d 1485, 1487-1490 (9th Cir. 1987); United States v. Keen, 96 F.3d 425 (9th Cir. 1996), rhg. den. and amended opinion filed, 104 F.3d 1111 (9th Cir. 1997); Snook v. Wood, 89 F.3d 605 (9th Cir. 1996).

[31] Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525 (1975).  The Ninth Circuit has held that the court cannot refuse to allow self-representation on a finding that the defendant will be incompetent as his own lawyer.  United States v. Arlt, 41 F.3d 516 (9th Cir. 1994).

[32] United States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983), cert. denied, 467 U.S. 1209, 104 S.Ct. 2398, 81 L.Ed.2d 355 (1984); United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982).

[33] See United States v. Van Krieken, 39 F.3d 277 (9th Cir. 1994).

[34] United States v. Dujanovic, 486 F.2d 182, 186‑187 (9th Cir. 1983) [emphases supplied]; see also United States v. Harris, 683 F.2d 322 (9th Cir. 1982); United States v. Ant, 882 F.2d 1389, 1394 (9th Cir. 1989).

[35] United States v. Harris, 683 F.2d 322, 324 (9th Cir. 1982).

[36] United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982).

[37] United States v. Harris, supra, 683 F.2d at 324.  See also United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir. 1978); United States v. Balough, 820 F.2d 1485, 1488 (9th Cir. 1987).

[38] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[39] In re Johnson, 62 Cal.App.2d 325, 398 P.2d 420 (1965).

[40] United States v. Smith, 171 F.3d 617 (8th Cir. 1999).

[41] United States v. Akins, 243 F.3d 1199 (9th Cir. 2001).

[42] Appel v. Horn, 250 F.3d 203 (3d Cir. 2001) (counsel’s failure to investigate mental competency of client, after client requested self-representation but before court relieved counsel, constituted denial of counsel).