James D. Wilson v. Hans Walker, Superintendent, Auburn Corr. Facility, 204 F.3d 33 (2d Cir. 2000). · Go Syfert
James D. Wilson v. Hans Walker, Superintendent, Auburn Corr. Facility, 204 F.3d 33 (2d Cir. 2000). Cases Citing This Book View Copy Cite
86 citation events (78 in the last 25 years) across 30 distinct courts.
Strongest positive: Jackson v. Perez (nyed, 2020-12-04)
Treatment trajectory · 2000 → 2026 · click a year to view as-of
2000 2013 2026
Top citers, strongest first. 49 distinct citers. How cited ↗
examined Cited as authority (quoted) Jackson v. Perez (2×) also: Cited "see"
E.D.N.Y · 2020 · signal: see · quote attribution · 1 verbatim quote · confidence high
even assuming that the petitioner's principal reason for seeking to proceed pro se was dissatisfaction with his counsel's representation and that the petitioner might have been satisfied with a substitution of counsel, his requests were clear and unequivocal.
discussed Cited as authority (rule) United States v. Michael Fletcher
6th Cir. · 2026 · confidence medium
No magic words are needed to waive the right to counsel, Cassano v. Shoop, 1 F.4th 458, 473 (6th Cir. 2021), although repeated and insistent expressions of an intent to proceed pro se provide strong evidence of an unequivocal waiver, see Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (per curiam).
discussed Cited as authority (rule) United States v. Hendrix
2d Cir. · 2026 · confidence medium
Although a 3 violation of a defendant’s Sixth Amendment right to proceed pro se “requires automatic reversal of a criminal conviction,” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000); see also McCoy v. Louisiana, 584 U.S. 414 , 427–28 (2018) (discussing the differences between structural and non- structural errors and holding that a structural error warrants “a new trial without any need first to show prejudice”), the Supreme Court has held that violations of the Sixth Amendment right to counsel are non-structural and subject to harmless-error review unless there was an “[a]ctu…
cited Cited as authority (rule) Frank Edward Schiefel, Jr. v. Gregory S. Zyburt et al.
W.D. Mich. · 2025 · confidence medium
Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000).3 The right to represent oneself does not encompass the right to meaningful access to the courts.
discussed Cited as authority (rule) United States v. Sikandar (2×)
2d Cir. · 2024 · confidence medium
“A criminal defendant is entitled to proceed pro se if he ‘knowingly, voluntarily, and unequivocally’ waives his right to appointed counsel.” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (quoting Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir. 1986)).
examined Cited as authority (rule) United States v. Ballard (3×) also: Cited "see"
2d Cir. · 2023 · confidence medium
“Once asserted, however, the right to self- representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (internal quotation marks and citation omitted). “[R]elinquishment of the right to proceed pro se may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” United States v. Barnes, 693 F.3d 261, 271 (2d Cir. 2012) (internal quotation marks and citation omitted).
discussed Cited as authority (rule) August Cassano v. Tim Shoop
6th Cir. · 2021 · confidence medium
No. 18-3761 Cassano v. Shoop Page 13 682 F.3d 400, 412 (5th Cir. 2012); Buhl v. Cooksey, 233 F.3d 783, 803 (3d Cir. 2000); Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000); United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994)).
discussed Cited as authority (rule) Elliott Finch, Jr. v. Dexter Payne
8th Cir. · 2020 · confidence medium
“However, to avoid waiver of a previously invoked right to self-representation, a defendant need not ‘continually renew his request to represent himself even after it is conclusively denied by the trial court.’” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (citation omitted).
cited Cited as authority (rule) State v. Singleton
Ariz. Ct. App. · 2019 · confidence medium
See, e.g., Buhl v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000); Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000).
discussed Cited as authority (rule) STATE OF NEW JERSEY VS. ZARIK ROSE (06-04-0377, GLOUCESTER COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
"Once asserted . . . the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one's request altogether." Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (quoting Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994)).
discussed Cited as authority (rule) STATE OF NEW JERSEY VS. ZARIK ROSE (06-04-0377, GLOUCESTER COUNTY AND STATEWIDE)
N.J. Super. Ct. App. Div. · 2019 · confidence medium
A-4915-16T2 20 one is vacillating on the issue or has abandoned one's request altogether." Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (quoting Williams v. Bartlett, 44 F.2d 95, 100 (2d Cir. 1994)).
discussed Cited as authority (rule) James Freeman v. Guy Pierce
7th Cir. · 2017 · confidence medium
See Batchelor, 682 F.3d at 412 (stating that a defendant “was not required, in order to avoid waiver, to add anything to the straightforward request .that he had already made plain in writing”); Buhl v. Cooksey, 233 F.3d 783, 803 (3d Cir. 2000) (noting that defendant’s failure to object to the denial of his request to proceed pro se was a “far cry from vacillation or waiver”);, Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (stating that a defendant need not continually reassert his request to proceed pro se in order “to avoid waiver of a previously invoked right to self-represen…
discussed Cited as authority (rule) Lathem v. State
Tex. App. · 2017 · confidence medium
Id.) Winton, 837 S.W.2d at 135 ; Robinson v. State, 387 S.W.3d 815, 820-21 (Tex. App-Eastland 2012, no pet.); see also Faretta, 422 U.S. at 835-36 , 95 S.Ct, at 2541 ; Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.) (holding that petitioner abandoned initial request when he subsequently had two different lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion), cert. denied, 531 U.S. 892 , 121 S.Ct. 218 , 148 L.Ed.2d 155 (2000); Raulerson v. Wainwright, 732 F.2d 803, 809 (11th Cir.) (holding defendant waived self-representati…
cited Cited as authority (rule) State v. Melton
Ohio Ct. App. · 2016 · confidence medium
Id., citing Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.2000).
discussed Cited as authority (rule) Cooke v. State
Del. · 2014 · signal: cf. · confidence medium
Cf. Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000) ("Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.”); Williams v. Bartlett, 44 F.3d 95, 100-01 (2d Cir.1994) ("The purpose of requiring that a criminal defendant make an 'unequivocal' request to waive counsel is twofold.
discussed Cited as authority (rule) Richard Bilauski v. Troy Steele
8th Cir. · 2014 · confidence medium
See United States v. Barnes, 693 F.3d 261, 272 (2d Cir.2012) (“The controlling principle here is that when a defendant in a criminal case has moved to represent himself and the court has not entered a ‘clear’ and ‘conclusive[ ]’ denial, it is incumbent on the defendant ‘to reassert his desire to proceed pro se ’; his failure to do so ... ‘constitute^] a waiver of his previously asserted Sixth Amendment right’ to proceed pro se.” (first and third alterations in original) (quoting Wilson v. Walker, 204 F.3d 33, 37-38 (2d Cir.2000))); see also Reese v. Nix, 942 F.2d 1276, 1281…
discussed Cited as authority (rule) State v. McLemore (2×)
Ariz. Ct. App. · 2012 · confidence medium
See Vann, 127 P.3d at 316-17 (stating once motion has been appropriately made and denied, defendant need not take any further action to reassert request); Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000) (stating after motion is conclusively denied, defendant need not continually renew request, make fruitless motions, or forego cooperation with defense counsel); Orazio v. Dugger, 876 F.2d 1508, 1512 (11th Cir.1989) (explaining that once denied, the defendant need not continually renew his request to represent himself or make fruitless motions). ¶ 28 We cannot agree with the State that McLemore…
examined Cited as authority (rule) United States v. Barnes (3×)
2d Cir. · 2012 · confidence medium
Second, because self-representation “relinquishes ... many of the traditional benefits associated with the right to counsel,” Faretta, 422 U.S. at 835 , 95 S.Ct. 2525 , the right to self-representation does not attach unless it is asserted “ ‘clearly and unequivocally,’ ” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000) (“Wilson”) (quoting Faretta, 422 U.S. at 835 , 95 S.Ct. 2525 ), cert. denied, 531 U.S. 892 , 121 S.Ct. 218 , 148 L.Ed.2d 155 (2000).
discussed Cited as authority (rule) State v. Jordan
Conn. · 2012 · signal: cf. · confidence medium
Id., at 426-27 , 978 A.2d 64 ; see also United States v. Hernandez, supra, 203 F.3d at 622 (failure to renew request in later proceedings, following denial by court, "does not diminish the clarity of [a defendant's] request ... or render it equivocal"); United States v. Arlt, 41 F.3d 516, 523 (9th Cir.1994) (further requests for self-representation would have been fruitless when defendant "stated his request clearly and unequivocally and the judge has denied it in a[n] equally clear and unequivocal fashion"); cf. Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000) ("[T]o avoid waiver of a previous…
discussed Cited as authority (rule) United States v. Sitzmann
D.D.C. · 2011 · confidence medium
A number of other circuits, however, have held that the right to self-representation is waived through conduct indicating that the defendant is “ ‘vacillating on the issue.’” Gill v. Mecusker, 633 F.3d 1272, 1295 (11th Cir.2011) (“‘Even if defendant requests to represent himself, ... the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether.’”) (alteration in original) (quoting Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982)); see United States v. Bankoff, 613 F.3d at 374 ; Wilson v. …
discussed Cited as authority (rule) United States v. Miles
10th Cir. · 2009 · confidence medium
See United States v. Proctor, 166 F.3d 396, 401 (1st Cir.1999); Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000); United States v. Peppers, 302 F.3d 120, 129 (3d Cir.2002); Daniels v. Lee, 316 F.3d 477, 489 (4th Cir.2003); Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc); United States v. Martin, 25 F.3d 293, 295 (6th Cir.1994); Cain v. Peters, 972 F.2d 748, 750 (7th Cir.1992); Hamilton v. Groose, 28 F.3d 859, 861 (8th Cir.1994); United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir.2002); Raulerson v. Wainwright, 732 F.2d 803 , 808 (11th Cir.1984); United States v. Weisz, 718 F.…
discussed Cited as authority (rule) State v. Darby
Wis. Ct. App. · 2009 · confidence medium
United States v. Cromer, 389 F.3d 662, 682-83 (6th Cir. 2004); United States v. Peppers, 302 F.3d 120, 132 (3d Cir. 2002); Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (per curiam); Fields v. Murray, 49 F.3d 1024 , 1029 *491 (4th Cir. 1995); Hamilton v. Groose, 28 F.3d 859, 862-63 (8th Cir. 1994); United States v. Benefield, 942 F.2d 60, 65 (1st Cir. 1991); United States v. Jones, 938 F.2d 737, 742 (7th Cir. 1991); Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989); United States v. Martin, 790 F.2d 1215, 1218 (5th Cir. 1986); Raulerson v. Wainwright, 732 F.2d 803, 808 (11th Cir. 1984);…
cited Cited as authority (rule) United States v. Jordan
S.D.N.Y. · 2008 · confidence medium
But, “[t]he right to self-representation attaches only if it is asserted clearly and unequivocally.” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir.2000) (citation omitted).
discussed Cited as authority (rule) United States v. Kidwell
6th Cir. · 2007 · confidence medium
Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir.2000) (“Once asserted ... the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.”).
examined Cited as authority (rule) Commonwealth v. Davido (3×) also: Cited "see, e.g."
Pa. · 2005 · confidence medium
But the failure of the trial court to simply forward the motion to counsel hardly absolved counsel of their responsibilities to their client. [1] See, e.g., Wilson v. Walker, 204 F.3d 33 , 38 n. 3 (2d Cir.2000) ("`[A] defendant is not deemed to have equivocated in his desire for self-representation merely because he expresses the view in the alternative, simultaneously requests the appointment of new counsel, or use [s] it as a threat to obtain private counsel.'" (quoting Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir.1994))); Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir.1989) (same); State v…
discussed Cited as authority (rule) Leroy Buhl v. Mr. Cooksey, Warden Attorney General of the State of New Jersey (2×)
3rd Cir. · 2000 · confidence medium
See Raulerson v. Wainwright, 732 F.2d 803 , 809 (11th Cir.) (defendant waived self representation right by proceeding with assigned counsel and walking out of Faretta hearing), cert. denied, 469 U.S. 966 (1984); Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000) (holding that petitioner abandoned initial request where he subsequently had two different lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion); cf. Williams, 44 F.3d at 101-102 (defendant did not waive right to proceed pro se by acquiescing in court's denial of…
discussed Cited as authority (rule) Buhl v. Cooksey
3rd Cir. · 2000 · confidence medium
See Raulerson v. Wainwright, 732 F.2d 803 , 809 (11th Cir.) (defendant waived self representation right by pr oceeding with assigned counsel and walking out of Faretta hearing), cert. denied, 469 U.S. 966 (1984); Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000) (holding that petitioner abandoned initial request where he subsequently had two dif ferent lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion); cf. Williams, 44 F .3d at 101-102 (defendant did not waive right to proceed pro se by acquiescing in court's denial…
discussed Cited as authority (rule) Commonwealth v. Jordan (2×) also: Cited "see"
Mass. App. Ct. · 2000 · confidence medium
“Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.” Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000), quoting from Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir. 1994).
discussed Cited as authority (rule) United States v. Darryl Lamont Johnson
7th Cir. · 2000 · confidence medium
Cain v. Peters, supra, 972 F.2d at 750 ; Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir.2000) (per curiam); Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir.1982) (en banc); United States v. Montgomery, 529 F.2d 1404, 1406 (10th Cir.1976).
discussed Cited as authority (rule) United States v. Johnson, Darryl, L.
7th Cir. · 2000 · confidence medium
Cain v. Peters, supra, 972 F.2d at 750 ; Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir. 2000) (per curiam); Brown v. Wainwright, 665 F.2d 607, 610-11 (5th Cir. 1982) (en banc); United States v. Montgomery, 529 F.2d 1404, 1406 (10th Cir. 1976).
examined Cited "see" Sims v. State (3×)
Nev. · 2023 · signal: see · confidence high
See Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000).
cited Cited "see" Sims v. State
Nev. · 2023 · signal: see · confidence high
See Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000).
discussed Cited "see" State v. Ghant
Conn. App. Ct. · 2022 · signal: see · confidence high
See Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.), (concluding that defendant’s motion to represent himself was ‘‘still open for discussion’’ where court based its denial, in part, on defendant’s refusal to answer certain questions that would have allowed court to determine whether waiver of counsel was knowing and intelligent and where court gave defen- dant one week to confer with counsel regarding his motion to represent himself), cert. denied, 531 U.S. 892 , 121 S. Ct. 218 , 148 L.
cited Cited "see" State v. Braswell
Conn. · 2015 · signal: see · confidence high
See Wilson v. Walker, 204 F.3d 33 (2d Cir.), cert. denied, 531 U.S. 892 , 121 S. Ct. 218 , 148 L.
discussed Cited "see" State of Tennessee v. Robert Hood
Tenn. Crim. App. · 2005 · signal: accord · confidence high
See McKaskle v. Wiggins, 465 U.S. 168, 182 , 104 S. Ct. 944 , 953 (1984) (defendant can waive his right to self-representation by allowing counsel to participate in trial); accord Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000) (failure to reassert a desire to proceed pro se constituted a waiver).
cited Cited "see" State v. Cassano
Ohio · 2002 · signal: accord · confidence high
Accord Wilson v. Walker (C.A.2, 2000), 204 F.3d 33, 38 (failure to reassert a desire to proceed pro se constituted a waiver).
cited Cited "see" State v. Cassano
Ohio · 2002 · signal: accord · confidence high
Accord Wilson v. Walker (C.A.2, 2000), 204 F.3d 33, 38 (failure to reassert a desire to proceed pro se constituted a waiver).
discussed Cited "see, e.g." State v. Trice
Conn. App. Ct. · 2025 · signal: see also · confidence medium
See State v. Paschal, supra, 207 Conn. App. 338 (defendant’s request to represent himself was not con- clusively denied where it was ‘‘clear from the record that both the defendant and the court considered the matter of the defendant’s representation still open for discussion’’); see also Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.), cert. denied, 531 U.S. 892 , 121 S. Ct. 218 , 148 L.
cited Cited "see, e.g." Ruotolo v. Town of New Paltz
N.D.N.Y. · 2024 · signal: see, e.g. · confidence medium
See, e.g., Wilson v. Walker, 204 F.3d 33, 37-38 (2d Cir. 2000).
discussed Cited "see, e.g." Barnes v. Uhler
W.D.N.Y. · 2021 · signal: see also · confidence medium
Further, “[o]nce asserted, . . . the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.” Id.; see also Wilson v. Walker, 204 F.3d 33, 37 (2d Cir. 2000) (“[A] waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” (citation omitted)).
discussed Cited "see, e.g." State v. Meyers
Idaho Ct. App. · 2018 · signal: see also · confidence medium
People v. Abdu, 215 P.3d 1265, 1268 (Colo. App. 2009); see also Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000) (holding that a defendant reasonably appeared to abandon his initial request to represent himself by voicing no dissatisfaction with his attorneys and by not reasserting his desire to proceed pro se); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (“Even if defendant requests to represent himself, however, the right may be waived through defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether.”).
discussed Cited "see, e.g." United States v. Liounis
unknown court · 2016 · signal: see, e.g. · confidence medium
See, e.g., Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.2000) (concluding that defendant showed “purposeful choice reflecting an unequivocal intent to forego the assistance of counsel,” particularly in light of his “background and previous experiences in the criminal justice system” (internal quotation marks omitted)).
discussed Cited "see, e.g." Com. v. Cash, O.
Pa. Super. Ct. · 2015 · signal: see also · confidence medium
“It is well established that a defendant can waive the right of self-representation after asserting it.” Buhl v. Cooksey, 233 F.3d 783, 800 (3d Cir. 2000) (citing cases); see also Wilson v. Walker, 204 F.3d 33, 38 (2d Cir. 2000) (petitioner abandoned initial request where he subsequently had two different lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion) Bryant, supra at 737 .
discussed Cited "see, e.g." State v. Arnold Dean Anderson
Idaho Ct. App. · 2015 · signal: see also · confidence medium
People v. Abdu, 215 P.3d 1265, 1268 (Colo. App. 2009); see also Wilson v. Walker, 204 F.3d 33, 38-39 (2d Cir. 2000) (holding that the defendant reasonably appeared to abandon his initial request to represent himself by voicing no dissatisfaction with his attorneys and by not reasserting his desire to proceed pro se); Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982) (“Even if defendant requests to represent himself, however, the right may be waived through the defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned the request altogether.”).
discussed Cited "see, e.g." United States v. Yusuf Abdur-Rahman
2d Cir. · 2013 · signal: compare · confidence low
Compare Wilson v. Walker, 204 F.3d 33 (2d Cir. 2000) (defendant’s repeated requests to proceed pro se, notwithstanding the appointment of new counsel, indicated a clear desire to invoke the right to self-representation); see also LaValle v. Artus, 403 Fed.
discussed Cited "see, e.g." United States v. Weingarten
2d Cir. · 2011 · signal: see also · confidence low
We observed: In Schmidt , we rejected the defendant’s claim that “she was coerced into self-representation because the district court, on the eve of trial, refused to replace her third court-appointed attorney.” As a general matter, a district court “may not compel defendant to proceed with incompetent counsel.” But “[b]ecause the right to counsel of one’s choice is not absolute, a trial court may require a defendant to proceed to trial with counsel not of defendant’s choosing.” And “[o]n the eve of trial, just as during trial, a defendant can only substitute new counsel wh…
discussed Cited "see, e.g." United States v. Weingarten
2d Cir. · 2011 · signal: see also · confidence low
We observed: 18 In Schmidt, we rejected the defendant’s claim that “she was coerced into 19 self-representation because the district court, on the eve of trial, refused to replace her 20 third court-appointed attorney.” As a general matter, a district court “may not compel 21 defendant to proceed with incompetent counsel.” But “[b]ecause the right to counsel 22 of one’s choice is not absolute, a trial court may require a defendant to proceed to 23 trial with counsel not of defendant’s choosing.” And “[o]n the eve of trial, just as 24 during trial, a defendant can only subst…
discussed Cited "see, e.g." Quint v. Commissioner of Correction
Conn. App. Ct. · 2007 · signal: see also · confidence medium
See, e.g., State v. Gethers, 197 Conn. 369 , 497 A.2d 408 (1985); see also Wilson v. Walker, 204 F.3d 33, 37-39 (2d Cir.) (when petitioner voiced no objection to appointment of counsel, stated nothing about representing himself and cooperated with appointed counsel, he waived through abandonment his prior assertion of right to proceed pro se), cert. denied, 531 U.S. 892 , 121 S. Ct. 218 , 148 L.
discussed Cited "see, e.g." Commonwealth v. Bryant (2×)
Pa. · 2004 · signal: see also · confidence medium
"It is well established that a defendant can waive the right of self-representation after asserting it." Buhl v. Cooksey, 233 F.3d 783, 800 (3d Cir.2000) (citing cases); see also Wilson v. Walker, 204 F.3d 33, 38 (2d Cir.2000) (petitioner abandoned initial request where he subsequently had two different lawyers appointed and did not assert right again after question of self-representation had been left open for further discussion); Williams v. Bartlett, 44 F.3d 95, 100 (2d Cir.1994) ("Once asserted... the right to self-representation may be waived through conduct indicating that one is vacilla…
Retrieving the full opinion text from the archive…
James D. WILSON, Petitioner-Appellant,
v.
Hans WALKER, Superintendent, Auburn Correctional Facility, Respondent-Appellee
1999.
Court of Appeals for the Second Circuit.
Feb 17, 2000.
204 F.3d 33
Susan D. Fitzpatrick, Ossining, NY, for Petitioner-Appellant., Wendy Evans Lehman, Chief of Appeals, Monroe County District Attorney’s Office (Howard R. Relin, District Attorney of Monroe County, of counsel), Rochester, NY, for Respondent-Appellee.
Cabranes, Oakes, Per Curiam, Sack.
Cited by 56 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 73%
Citer courts: E.D. New York (1)
[*35] PER CURIAM.

This appeal requires us to clarify when a criminal defendant may be deemed to have waived a previously asserted right to represent himself at trial. Petitioner James D. Wilson appeals from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge), denying his petition for the writ of habeas corpus pursuant to 28 U.S.C. § 2254 on the ground that he had waived his Sixth Amendment right to self-representation through abandonment. We agree with the District Court that Wilson waived his Sixth Amendment right, and we therefore affirm the judgment of the District Court.

I.

On February 8, 1994, Wilson and another man, with guns drawn and faces covered, entered a store in Rochester, New York, grabbed the cashier around the neck, and ordered everyone in the store to lie on the floor. The two men then directed everyone but the store manager into a walk-in cooler, which they locked, and ordered the manager to take money and food stamps out of the store’s safe. Wilson and his accomplice fled the store with about $13,000 worth of items, but they were apprehended immediately.

Wilson was arraigned in County Court of the State of New York, Monroe County, before Judge Patricia Marks on February 28, 1994, and charged with one count of robbery in the first degree. Because Wilson was indigent, Judge Marks assigned an attorney to represent him. For reasons that are unclear from the record, however, this attorney soon thereafter withdrew as Wilson’s counsel, and Judge Marks assigned Bradley C. Bennett to replace him.

On or about April 22,1994, approximately three weeks before Wilson’s trial was scheduled to begin, Wilson wrote a letter to Judge Marks stating that he “no longer ha[d] confidence” in Bennett and intended to proceed pro se. One week later, on April 29,1994, Judge Marks held a hearing to address the matter. At the hearing, Wilson asserted that there were “irreconcilable differences” between his attorney and himself, and informed Judge Marks that he “simply decided [he] would handle [his] own case.” Despite questions from Judge Marks, Wilson did little to elaborate on the reasons for his dissatisfaction with Bennett; nevertheless, he unambiguously asserted a lack of confidence in Bennett and in Bennett’s preparation for trial, and argued that he, Wilson, would “be more zealous in [his] own representation than anyone else.” During the hearing, Wilson stated at least seven times that he wanted to represent himself, and asserted that he had “an absolute constitutional right” to do so.

Judge Marks conducted an extensive inquiry into Wilson’s background and legal experience. Wilson informed Judge Marks that he had been tried three previous times in complicated proceedings, and that he had participated extensively in his own defense on each occasion; that he was familiar with the order of a trial and the rules of evidence; that he had been reading law books in preparation for his trial; and that he had prepared written questions for his attorney to ask witnesses in a prior trial. In the course of this questioning, however, Wilson interrupted Judge Marks several times, prompting her to note for the record that Wilson had “de-clinefd] to answer questions that would permit [her] to determine whether waiving his right to counsel ... is a knowing, intelligent and voluntary waiver.” At the conclusion of the hearing, in a colloquy set forth in the margin, Judge Marks concluded that Wilson had not knowingly, intelligently, and voluntarily waived his right to counsel, and therefore denied his application to represent himself. [1]

[*36] Although Bennett stayed on as Wilson’s attorney after the April 29, 1994 hearing, he was not to remain in that capacity for long. On May 13, 1994, citing a belief that his and his family’s “physical well-being” might be “at jeopardy” if he continued to represent Wilson, Bennett requested that he be permitted to withdraw from the case. After determining that Wilson had no objection, Judge Marks granted Bennett’s request to withdraw. She then appointed Garry Hanlon to replace Bennett as Wilson’s counsel.

Judge Marks asked Wilson if Hanlon’s assignment was “agreeable” with him, but before Wilson could respond Hanlon stated:

Your Honor, if I may interject at this point in time. Please hold on a second, Mr. Wilson.
... It’s my understanding Mr. Wilson has indicated he wishes to proceed pro se, and that the Court is reluctant to allow him to do that due to the complexity of the charges, as well as the risks that he faces in light of his background. It’s my understanding that the Court is going to allow me to have a week as his attorney to review his request with regard to the pro se application....

Judge Marks then responded: “That’s fíne. One of my findings, however, on previous colloquy, was that the defendant has conducted himself in a way that would interfere with a fair and orderly trial, and this continues to demonstrate that.” Thereafter, without asking Wilson again whether Hanlon’s appointment as counsel was acceptable to him, Judge Marks adjourned the trial to May 20, 1994.

Like Bennett, Hanlon was not to last long as Wilson’s counsel. On May 23, 1994, in another hearing before Judge Marks, Hanlon withdrew as counsel because of a conflict of interest. [2] Judge Marks then appointed Culver Barr as counsel, and designated November 28, 1994 as a new trial date. When asked if Barr’s appointment as counsel was “agreeable” to him, Wilson voiced no objection, and stated nothing about representing himself. Moreover, during the remainder[*37] of pre-trial proceedings and during the trial, which finally began as scheduled on November 28, 1994, there was no discussion on the record concerning Barr’s representation or Wilson’s previously expressed desire to proceed pro se.

After trial, the jury convicted Wilson of robbery in the first degree. On February 6, 1995, Wilson was sentenced as a persistent violent felony offender under New York law to a term of imprisonment of 25 years to life. Upon exhaustion of state court remedies, Wilson filed a petition for the writ of habeas corpus with the District Court, asserting, inter alia, that his Sixth Amendment right to self-representation had been violated. By Decision and Order filed June 16, 1998, the District Court denied Wilson’s petition. With respect to Wilson’s Sixth Amendment claim — the only claim at issue here — the District Court concluded that, although Wilson had “clearly and unambiguously” asserted his right to self-representation at the April 29, 1994 hearing, he thereafter waived the right through abandonment. We granted a Certificate of Appealability with respect to whether Wilson waived his right to self-representation.

II.

Under the Sixth Amendment to the Constitution, an accused is guaranteed the right to represent himself. See Faretta v. California, 422 U.S. 806, 819-20, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A criminal defendant is entitled to proceed pro se if he “knowingly, voluntarily, and unequivocally” waives his right to appointed counsel. Johnstone v. Kelly, 808 F.2d 214, 216 (2d Cir.1986) (citing Faretta, 422 U.S. at 835-36, 95 S.Ct. 2525). Assuming that a defendant’s waiver meets this standard and the matter is raised prior to the start of the trial, “ ‘[t]he right of a defendant in a criminal case to act as his own lawyer is unqualified Williams v. Bartlett, 44 F.3d 95, 99 (2d Cir.1994) (quoting United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir.1965)) (emphasis in Williams). Moreover, a court’s denial of the right to self-representation is not subject to harmless error analysis, and requires automatic reversal of a criminal conviction. See Johnstone, 808 F.2d at 218.

The right to self-representation attaches only if it is asserted “clearly and unequivocally.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. “Once asserted, however, the right to self-representation may be waived through conduct indicating that one is vacillating on the issue or has abandoned one’s request altogether.” Williams, 44 F.3d at 100 (citing Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982) (en banc)). Thus, “[a] waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” Brown, 665 F.2d at 611. However, to avoid waiver of a previously invoked right to self-representation, a defendant need not “continually renew his request to represent himself even after it is conclusively denied by the trial court. After a clear denial of the request, a defendant need not make fruitless motions or forego cooperation with defense counsel in order to preserve the issue on appeal.” Id. at 612; accord United States v. Arlt, 41 F.3d 516, 523 (9th Cir.1994) (“[0]nce a defendant has stated his request clearly and unequivocally and the judge has denied it in an equally clear and unequivocal fashion, the defendant is under no obligation to renew the motion.”).

In the present case, Wilson clearly and unequivocally asserted his right to represent himself. At the April 29,1994 hearing, Williams asserted no fewer than seven times that he wanted to represent himself, and even invoked his constitutional right to proceed pro se explicitly. [3] To be sure, Judge Marks did not[*38] engage in the sort of questioning likely to elicit whether Wilson was waiving his right knowingly and intelligently — for instance, much of her inquiry focused on whether Wilson was able and qualified to defend himself, a matter that is simply irrelevant to the necessary determination. See Godinez v. Moran, 509 U.S. 389, 399, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993) (“[T]he competence that is required of a defendant seeking to waive his right to counsel is the competence to waive the right, not the competence to represent himself.”); see also United States v. Fore, 169 F.3d 104, 108 (2d Cir.1999) (discussing the issues a court should explore when a defendant asserts the right to represent himself). However, from a review of the hearing transcript, and in light of Wilson’s background and previous experiences in the criminal justice system, we think it is plain that Wilson showed a “purposeful choice reflecting an unequivocal intent to forego the assistance of counsel.” Williams, 44 F.3d at 100 (internal quotation marks omitted). [4]

That said, we agree with the District Court that Wilson waived his right to self-representation through abandonment. Whether or not Judge Marks’s ruling at the April 29, 1994 hearing could be construed as a “clear denial” of Wilson’s request to proceed pro se, Brown, 665 F.2d at 612, it is apparent that both Wilson and Judge Marks considered the matter still open for discussion on May 13, 1994. [5] On that date, Hanlon was appointed to replace Bennett as Wilson’s counsel, and Judge Marks granted Hanlon one week “to review [Wilson’s] request with regard to the pro se application.” To be sure, Judge Marks’s remarks to Hanlon may indicate that she would have been disinclined to grant Wilson’s request to represent himself had it been renewed. However, in the absence of additional evidence, we are unwilling to assume that a renewal of Wilson’s request would have been “fruitless.” Id.; cf. Williams, 44 F.3d at 101 (concluding that the petitioner’s failure to reassert a desire'to represent himself did not constitute abandonment because the court’s rejection of the initial request “was categorical, and expressly relied on the advanced stage of the proceedings and the defendant’s lack of education — obstacles that were not going to be removed before trial”); Arlt, 41 F.3d at 523-24 (concluding that the defendant was under no obligation to renew his request to proceed pro se when the trial judge had categorically rejected four previous requests).

In view of the fact that there were two subsequent changes in the attorney appointed to represent Wilson and the question of self-representation was left open for possible further discussion, we conclude that Wilson’s failure to reassert his desire to proceed pro se constituted a waiver of his previously asserted Sixth Amendment right. Following Judge Marks’s initial denial of Wilson’s request, there were two separate hearings concerning Wilson’s representation. On both of these occasions— and during the remainder of pre-trial pro[*39] ceedings and during trial — Wilson remained silent with respect to the issue of his representation, voicing no dissatisfaction with the attorneys appointed to represent him and choosing not to reassert his desire to proceed pro se. Moreover, this silence stands in stark contrast to Wilson’s willingness to assert his perceived rights at other points during the proceedings. Indeed, he initiated the request to proceed pro se by writing himself to Judge Marks; and in subsequent proceedings, he pointedly questioned Judge Marks’s impartiality, and ultimately invoked his right not to attend the trial.

In short, from Wilson’s apparent cooperation with Hanlon and Barr, his failure at any point after Bennett’s withdrawal from the case to voice any dissatisfaction with his representation, and his decision not to reassert his previously asserted right to represent himself, it “reasonably appears” that Wilson “abandoned his initial request to represent himself.” Brown, 665 F.2d at 611. Accordingly, the judgment of the District Court is affirmed.

1

. In addition to making a request to represent himself, Wilson demanded that he be allowed daily access to the law library in jail. When Judge Marks responded that she could not[*36] order the sheriff to provide him with daily access to the library, Wilson stated that "if [he could not] have those basic things that [he was] requesting, it would be impossible for [him] to conduct this trial.” The following colloquy then occurred:

[JUDGE MARKS]: Very well, Mr. Bennett will remain in the case, and the trial will proceed on May 16th.
[[Image here]]
I don't see this as a knowing and intelligent and voluntary waiver of your right to counsel, and I don't believe you are ready to proceed pro se on May 16th.
[[Image here]]
[WILSON]: So, Your Honor, may I say in sum and substance, say here regardless of my desire ... not to have this counsel represent me, that you are going to impose him on me and he is going to conduct a trial on my behalf?
[JUDGE MARKS]: That's what I am saying. You have a right to counsel, and the only way you can waive that right to counsel is if the Court conducts an inquiry to determine whether it's a knowing, intelligent and voluntary waiver as to a matter of whether or not you like your attorney.
[WILSON]: It's not a matter of liking him, Your Honor.
[JUDGE MARKS]: That's what I'm hearing. Your attorney has attempted to communicate with you, and you have chosen not to communicate with him.... The trial is scheduled in a little over two weeks. I suggest you cooperate with your attorney. Try to resolve any further conflicts. He is a good attorney. He is an experienced attorney, and he is capable of handling your defense in a very effective way.
[WILSON]: Obviously I don’t agree with that, Your Honor. I feel I have an absolute constitutional right to represent myself, and I don't have to [give] any explanation as to why.
[JUDGE MARKS]: Again, this is again an indication of your lack of understanding of the law.
2

. The reason for Hanlon's conflict of interest is not apparent from the record on appeal.

3

. Even assuming that Wilson’s principal reason for seeking to proceed pro se was dissatisfaction with Bennett’s representation and that Wilson might have been satisfied with a sub-[*38] stitulion of counsel, his requests were clear and unequivocal. As we noted in Williams, "a defendant is not deemed to have equivocated in his desire for self-representation merely because he expresses that view in the alterna-, tive, simultaneously requests the appointment of new counsel, or used it as a threat to obtain private counsel.” 44 F.3d at 100.

4

. We note that a court may deny a defendant’s request to proceed pro se if it finds that the request is "manipulative or abusive in some other way.” Williams, 44 F.3d at 101. In the present case, however, although Judge Marks implied at the April 29 and May 13, 1994 hearings that she viewed Wilson's request to proceed pro se as a delaying tactic, she did not make explicit findings to that effect.

5

. Judge Marks's ruling at the April 29, 1994 hearing appears to have been based in part on her perception that Wilson had "decline[d] to answer questions that would permit [her] to determine” whether his waiver was valid. Insofar as that was the case, there is no reason to believe that Judge Marks's denial of Wilson's request to proceed pro se was clear or final.