                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                   PUBLISH
                                                                        FEB 16 1999
                  UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                           FOR THE TENTH CIRCUIT



 JAMES DEWAYNE MUNKUS,
       Petitioner-Appellant,
 v.                                                    No. 98-1144
 ROBERT FURLONG and
 ATTORNEY GENERAL OF THE
 STATE OF COLORADO,
       Respondents-Appellees.


        APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF COLORADO
                       (D.C. No. 97-S-1808)


Submitted on the briefs:

James Munkus, pro se Petitioner-Appellant, Limon, Colorado.



Before TACHA, McKAY, and MURPHY, Circuit Judges.


McKAY, Circuit Judge.




      After examining Petitioner-Appellant’s brief and the appellate record, this
panel has determined unanimously that oral argument would not materially assist

the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G). The case is therefore ordered submitted without oral argument.

      Petitioner, proceeding pro se, appeals the district court’s dismissal of his

petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On

May 7, 1990, Petitioner pled guilty to aggravated robbery and violent crime

charges in Colorado State Court. At the time of his plea, he was represented by

court-appointed counsel who had negotiated the plea agreement. Petitioner’s

written plea agreement indicated that he was satisfied with the representation of

his attorney. The Colorado state trial court sentenced him to thirty-two years’

imprisonment. On direct appeal, the Colorado Court of Appeals affirmed

Petitioner’s conviction and sentence. After the Colorado Supreme Court denied

his petition for certiorari, Petitioner filed a post-conviction relief application in

which he alleged that his conviction was invalid because he was never advised of

his right to self-representation. The state trial court denied the application and

the Colorado Court of Appeals affirmed that denial. The Colorado Supreme

Court again denied a petition for certiorari.

      Petitioner then filed this habeas corpus petition pursuant to 28 U.S.C.

§ 2254 in which he repeated his claim that his conviction was invalid because he

was not advised of, and did not waive his right to, self-representation. The


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magistrate judge found that although the state court admittedly did not advise

Petitioner of the right to represent himself it did not deny him a fundamental

federal constitutional right. The magistrate judge concluded that there is no

federal constitutional right requiring a trial court to advise a criminal defendant of

his or her right to self-representation and recommended that the petition be

dismissed. The district court adopted the magistrate judge’s recommendation,

stating that while Petitioner has a constitutional right to self representation, he

has “no constitutional right to be informed of the right to self representation.” R.,

Doc. 26 at 4. After dismissing the petition, the district court denied Petitioner a

certificate of appealability and denied his request to proceed in forma pauperis on

appeal. In his appeal of the district court’s dismissal of his habeas corpus

petition, Petitioner renews his application for a certificate of appealability with

this court and requests leave to proceed in forma pauperis on appeal.

      We may issue a certificate of appealability “only if the applicant has made

a substantial showing of the denial of a constitutional right.” 28 U.S.C.

§ 2253(c)(2). Petitioner’s constitutional right to self-representation is not

disputed. See Faretta v. California, 422 U.S. 806, 832, 836 (1975) (confirming

that the Sixth Amendment right to counsel “necessarily implies the right of self-

representation”); see also McKaskle v. Wiggins, 465 U.S. 168 (1984)

(establishing standards for participation of standby counsel in light of right to


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self-representation). At issue is whether there exists a constitutional right to be

informed of the right to self-representation, the denial of which would satisfy the

standard for issuing a certificate of appealability.

      In Faretta, the Supreme Court recognized that a defendant has a

constitutional right to conduct his own defense provided that he knowingly and

intelligently waives his right to counsel. See Faretta, 422 U.S. at 835; United

States v. Allen, 895 F.2d 1577, 1578 (10th Cir. 1990). However, neither the

Supreme Court nor this court has determined whether trial courts have a duty to

advise criminal defendants of the right to represent themselves. Cf. Faretta, 422

U.S. at 852 (Blackmun, J., dissenting). Since Faretta was decided, only the Sixth

Circuit, in United States v. Martin, 25 F.3d 293, 295-96 (6th Cir. 1994), has

spoken on this precise question. 1 The Sixth Circuit concluded that there is no

constitutional right to be informed of the right of self-representation. See id. at

296. In analyzing this question, the Sixth Circuit framed the defendant’s claim


      1
        The Sixth Circuit noted that a Second Circuit decision decided before
Faretta, United States ex rel Maldanado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965),
cert. denied sub nom. DiBlasi v. McMann, 384 U.S. 1007 (1966), stated that a
defendant need not be notified of his right to self-representation. See Martin, 25
F.3d at 295. While Denno remains valid, we do not rely on its reasoning to
support our decision.

       We also note that the United States Court of Appeals for the Armed Forces
has concluded that, unless an accused specifically expresses a desire for self-
representation, he need not be advised that he may represent himself. See United
States v. Bowie, 21 M.J. 453, 456 (C.M.A.), cert. denied, 479 U.S. 820 (1986).

                                          -4-
that she should have been informed of this right as “an assertion that the right to

self-representation can only be waived upon a knowing and intelligent waiver.”

Id. at 295. The court then determined that such a waiver is not required for the

right to self-representation and that the trial court has no obligation to notify the

defendant of this right. See id. Like our sister circuit, we examine “the general

framework within which the constitutional right to self-representation exists,” id.

at 296, in order to determine whether a trial court has an obligation to inform a

defendant of his right to self-representation.

      In Faretta, the Court explained that while the right to counsel is essential to

guarantee the defendant a fair trial, the right to self-representation is grounded in

the notion of free choice. See Faretta, 422 U.S. at 832-34; see also McKaskle,

465 U.S. at 178 (“[T]he right to appear pro se exists to affirm the accused’s

individual dignity and autonomy.”). Here lies the critical distinction between the

right to counsel and the right to self-representation: The right to self-

representation need not be accompanied by advance warning of its existence.

Unlike the prophylactic right to counsel, which exists to preserve a defendant’s

fair trial concerns until it is affirmatively waived, the right to self-representation

is implicated only when a defendant decides to waive his right to counsel. A

defendant’s waiver of his right to counsel is valid only if it is knowing and

intelligent; the waiver is knowing and intelligent only if the trial court informs the


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defendant on the record of the nature of the charges against him, the possible

punishments and defenses, and the dangers and disadvantages of

self-representation. See Faretta, 422 U.S. at 835; United States v. Willie, 941

F.2d 1384, 1388 (10th Cir. 1991), cert. denied, 502 U.S. 1106 (1992).

      As noted above, the purpose of these warnings is to protect the defendant’s

right to a fair trial. This preventive aim is reflected in the oft-repeated phrase,

“[W]hen the right of self-representation is exercised it ‘usually increases the

likelihood of a trial outcome unfavorable to the defendant.’” United States v.

Baker, 84 F.3d 1263, 1264 (10th Cir. 1996) (quoting McKaskle, 465 U.S. at 177

n.8). In light of this well-recognized reality, no court has said that the fair trial

protections which are required to waive the right to counsel are necessary to

waive the right to self-representation; in theory, a defendant’s fair trial rights are

protected when he exercises the right to counsel and avoids self-representation.

Thus, because “the right to self-representation does not implicate constitutional

fair trial considerations to the same extent as does an accused’s right to counsel,”

Martin, 25 F.3d at 295, it requires neither notice of the right’s existence prior to

legal proceedings nor a knowing and intelligent waiver. Cf. Schneckloth v.

Bustamonte, 412 U.S. 218, 237 (1973) (“Almost without exception, the

requirement of a knowing and intelligent waiver has been applied only to those

rights which the Constitution guarantees to a criminal defendant in order to


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preserve a fair trial.”).

       Further, because the right to self-representation arises only when a

defendant knowingly and intelligently waives the right to counsel, courts

consistently have discussed the right to self-representation in terms of invoking or

asserting it. See Baker, 84 F.3d at 1267 (holding that defendant met necessary

requirements in order to invoke right of self-representation); Stano v. Dugger, 921

F.2d 1125, 1143 (11th Cir.) (stating that right to counsel “attaches automatically

and must be waived affirmatively to be lost, while the [right to self-

representation] does ‘not attach unless and until it [i]s asserted’” (citation

omitted)), cert. denied sub nom. Stano v. Singletary, 502 U.S. 835 (1991); United

States v. Allen, 789 F.2d 90, 94 (1st Cir.) (holding that right of self-

representation did not attach because defendant had made no indication of his

desire to proceed without counsel), cert. denied, 479 U.S. 846 (1986); Brown v.

Wainwright, 665 F.2d 607, 610 (5th Cir. 1982) (en banc) (“While right to counsel

is in force until [knowingly and intelligently] waived, the right of self-

representation does not attach until asserted.”). Accordingly, a “defendant must

meet several requirements in order to invoke this right.” Baker, 84 F.3d at 1264.

First, the defendant must “clearly and unequivocally declare[]” his intention to

proceed pro se. Faretta, 422 U.S. at 835; accord United States v. Callwood, 66

F.3d 1110, 1113 (10th Cir. 1995); United States v. Reddeck, 22 F.3d 1504, 1510


                                          -7-
(10th Cir. 1994). Second, this assertion must be timely. See United States v.

Nunez, 877 F.2d 1475, 1478-79 (10th Cir.), cert. denied, 493 U.S. 981 (1989);

accord Jackson v. Ylst, 921 F.2d 882, 888-99 (9th Cir. 1990) (holding that

untimely and equivocal request to represent self was not sufficient to invoke

right). Finally, there must “be a showing that [the defendant] ‘knowingly and

intelligently’ relinquishes the benefits of representation by counsel.” United

States v. McKinley, 58 F.3d 1475, 1481 (10th Cir. 1995) (quoting Faretta, 422

U.S. at 835); see also United States v. Schaff, 948 F.2d 501, 503 (9th Cir. 1991)

(“It is well established in this circuit that in order to invoke the sixth amendment

right to self representation, the request must be: (1) knowing and intelligent, (2)

unequivocal, (3) timely, and (4) not for purposes of delay.”).

      In this case, Petitioner did not even satisfy the first requirement: He never

made any request to represent himself nor did he make any statement that could

be construed as such. While the defendant in Martin expressed dissatisfaction

with her trial counsel’s performance, which perhaps could be interpreted as a

request to represent herself or a request for different counsel, Petitioner has never

alleged any misconduct or ineffective representation on the part of his counsel.

Because Petitioner has done nothing to show that he clearly and equivocally

declared his intention to represent himself, he has failed to invoke his right to do

so.


                                          -8-
      Finally, our examination of the constitutional basis of the right to self-

representation reveals that the right is not absolute. “A district court is not

obliged to accept every defendant’s invocation of the right to self-representation.”

United States v. Purnett, 910 F.2d 51, 55 (2d Cir. 1990). In fact, a court may

terminate the right to self-representation, or the defendant may waive it, even

after he has unequivocally asserted it. See Faretta, 422 U.S. at 834 n.46 (“[T]he

trial judge may terminate self-representation by a defendant who deliberately

engages in serious and obstructionist misconduct.”); United States v. Bennett, 539

F.2d 45, 50-51 (10th Cir.) (holding that the record supported findings that

defendant forfeited his right to self-representation by vacillating on the issue),

cert. denied, 429 U.S. 925 (1976); United States v. Montgomery, 529 F.2d 1404,

1406 (10th Cir.) (holding that defendant waived right to proceed pro se when he

allowed public defender to conduct plea bargaining on his behalf and accepted the

benefits of the plea bargaining by pleading guilty to a lesser offense), cert.

denied, 426 U.S. 908 (1976); cf. Wilson v. Gomez, 105 F.3d 668 (9th Cir. 1996)

(Table) (holding that defendant waived his right to self-representation by making

equivocal requests regarding self-representation). These cases demonstrate that a

waiver or a termination of the right to self-representation may occur without the

defendant’s knowledge or consent. In fact, a waiver or termination may result

merely from the defendant’s equivocation. See Callwood, 66 F.3d at 1114.


                                          -9-
      In light of these constraints on the right of self-representation, we agree

with the Sixth Circuit’s reasoned determination that a criminal defendant does not

have a constitutional right to be informed of his constitutional right of self-

representation. We therefore deny Petitioner a certificate of appealability and

dismiss this appeal. 2

      DENIED and DISMISSED.




      2
          We grant Petitioner’s request to proceed in forma pauperis on appeal.

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