                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-10-2003

Cooley v. English
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-3494




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                                                                     NOT PRECEDENTIAL

                      THE UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                         ___________

                                         No. 01-3494
                                         ___________

                                 KELLEY TROY COOLEY

                                                        Appellant,

                                                 v.

                         THOM AS ENGLISH, Superintendent;
                         MICHAEL FISHER, Attorney General;
                       JOSEPH P. CONTI, DISTRICT ATTORNEY
                                   ___________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE WESTERN DISTRICT OF PENNSYLVANIA

                            (W.D. PA. CIV. NO. 99-CV-00078E)
                      District Judge: The Honorable Sean M cLaughlin
                                       ___________

                         Submitted Under Third Circuit LAR 34.1(a)
                                      July 11, 2003

BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.


                                 (Filed September 10, 2003 )




*       Honorable Joseph E. Irenas, Senior District Judge for the United States District Court for
the District of New Jersey, sitting by designation.
                                          ___________

                                  OPINION OF THE COURT
                                       ___________


IRENAS, Senior District Judge

                                                I.

       Presently before the Court is Kelley Troy Cooley’s petition for habeas corpus relief

under 28 U.S.C. § 2254. Cooley claims that he did not knowingly and intelligently waive

his Sixth Amendment right to counsel at a pretrial hearing and as a result was effectively

denied counsel for the two months preceding his second trial for burglary, assault, and

related charges. He thus seeks a new trial. 1

       Approximately two months before the second trial, Cooley’s attorney moved to

withdraw as counsel based on Cooley’s unhappiness with his services. At that point the

trial judge should have engaged in a detailed inquiry as to whether such request was

reasonable. United States v. Welty, 674 F.2d 185, 187 (3d Cir. 1982). If the court found

the application to be without merit, it should then have given defendant a choice of

retaining current counsel or proceeding pro se. If the defendant elected to go pro se, the



       1
         On September 4, 2002, a panel of this court issued a certificate of appealability under 28
U.S.C. § 2253(c)(1) on the issue of whether the appellant “was denied his federal constitutional
rights when the trial court failed to instruct him regarding the consequences of waiving his right
to counsel.” Appellee’s rights to argue petitioner’s failure to exhaust remedies and the statute of
limitations contained in 28 U.S.C. § 2244(d) were preserved. Appellant was denied a certificate
of appealability on the claim that his trial counsel had a conflict of interest. ( See Add. G to
Appellant’s brief.)

                                                 1
court should have then engaged in a colloquy with defendant to ensure that he understood

the consequences of his waiver. Faretta v. California, 422 U.S. 806, 835 (1975).

       The trial court did not follow either Welty or Faretta. It did not engage in any type

of meaningful inquiry as to whether there was good cause for the dismissal of Cooley’s

counsel. When, without inquiry, the trial judge determined that there was no good cause

for discharging counsel, she nevertheless granted counsel’s motion to be relieved and

directed that Cooley either retain private counsel or proceed pro se even though Cooley

clearly did not have the means to retain private counsel and even though he at no time

indicated a desire to proceed pro se. Furthermore, the court did not conduct the required

colloquy to ensure that Cooley was aware of the consequences of proceeding without

counsel. As a result, for the two months before the retrial Cooley was without counsel,

and it was not until the day of trial that new counsel took over defense of the case.

       We find that Cooley’s Sixth Amendment right to counsel (incorporated by the

Fourteenth Amendment) was violated by the procedures followed by the trial court and

that such error was not harmless. Thus, we will reverse the decision of the District Court

and remand the case with directions to issue the writ of habeas corpus, on the proviso that

Pennsylvania shall, within 120 days, conduct a new trial.




                                             II.

       On August 27, 1992, Cooley allegedly committed burglary and aggravated assault



                                              2
at a residence occupied by his estranged wife. Angelo Arduini from the Public

Defender’s Office represented Cooley at his first trial on March 11, 1993, before Judge

Fischer in the Court of Common Pleas of Erie County, Pennsylvania. The trial ended in

a mistrial after a prosecution witness testified during cross-examination that Cooley had

previously been in jail.

       On April 6, 1993, at Cooley’s request, Arduini filed a motion to withdraw as

counsel. The motion hearing before Judge Domitrovich on Monday, April 12, 1993,

began with Arduini explaining the history of his representation of the Defendant and why

he thought Cooley wanted to remove him as counsel. His explanation prompted the

following exchange:

              The Court: So he wants to represent himself?

              Mr. Arduini: I don’t know what he wants, Your Honor. That’s why I

              brought him here before the Court.

                                             ...

              The Court: Mr. Cooley, at this time I’m going to give you an opportunity

              to try to talk to Mr. Arduini because I’m going to tell you right now you’ve

              got two choices: You either will represent yourself or you will have Mr.

              Arduini represent you. So I’m going to give you an opportunity in the next

              ten to fifteen minutes to try to work out any personality conflicts that you

              have with Mr. Arduini because what I have heard so far from Mr. Arduini


                                             3
and from Mr. Murray and the way you’re talking with your attitude–

The Defendant: Your Honor, I don’t have an attitude.

The Court: Yes, you do.

The Defendant: No, I don’t. If you let me finish talking, you would

understand what I’m saying.

The Court: You have an attitude problem. I’m going to give you ten to

fifteen minutes–

The Defendant: There’s nothing to work out with the man.

The Court: You want to represent yourself; is that it? No, you don’t?

The Defendant: You don’t want to hear what I got to say. What do I want

to work out something with him for?

The Court: Did you hear what I said?

The Defendant: Don’t matter.

The Court: Talk to him for the next ten to fifteen minutes.

The Defendant: No. For what?

Mr. Arduini: He doesn’t want to talk to me, fine.

The Defendant: I want to finish what I have to say.

The Court: I have heard enough from you.

The Defendant: I have had two attorneys.

The Court: I don’t like your tone of voice. I don’t like your attitude.


                               4
              The Defendant: You don’t even know nothing about the case.

              The Court: Take him away. Motion to withdraw granted.

              The Defendant: Thank You.

              The Court: He represents himself.

              The Defendant: Right.

              Mr. Arduini: Thank you Your Honor.

              The Defendant: Don’t matter. Don’t want to hear nothing I got to say.

(App. Two at 125a-129a).

       At this point the Court concluded the proceedings. The entire hearing lasted seven

minutes, beginning at 9:14 am and ending at 9:20 am. The Order of the Court granting

Arduini’s Motion to Withdraw Counsel directed Cooley to proceed pro se or retain

private counsel. (App. Two at 131a). On April 13, 1993, the day after the hearing,

Cooley filed a pro se Motion for a Court Appointed Attorney, (Id. At 132a), which was

denied by the Court. (Id. at 138a).

       A Scheduling Hearing for Cooley’s second trial was held before Judge

Domitrovich two months later on June 17, 1993. Michael Palmisano from the Public

Defender’s Office and Patrick Carey from the District Attorney’s Office were also present

at the hearing.2 Palmisano informed the court that he visited Cooley twice in prison over




       2
       Although Palmisano was present at the hearing, it appears from the record that
Defendant was still proceeding Pro Se at the time. (App. Two at 141a).

                                              5
the past two months and at the Petitioner’s request proposed a plea bargain to the District

Attorney’s office, which was refused. Upon hearing this, the Court affirmed that “This is

after the Court Order indicating that the public defender is not to represent him?” (App.

Two at 143a).

       At the Scheduling Hearing, Palmisano also informed the Court that he didn’t

interview Cooley’s wife or other witnesses because he didn’t feel it was proper under the

circumstances. (Id. at 144a). The Court then told Cooley that he would have stand-by

counsel in his second trial. At this point in the Hearing, Cooley expressed his desire for a

non-jury trial, to which the prosecutor and the Court agreed. Although the Court

adjourned briefly so that Cooley could sign the proper waiver forms with the prosecutor,

there was no colloquy with the court before Cooley waived his right to a jury.

       Cooley’s second, non-jury trial began on June 21, 1993. The Court asked Cooley

whether or not he was proceeding pro se or whether he would accept Palmisano as his

standby counsel. Cooley responded that he would let Palmisano represent him because he

had not done much to prepare. Cooley was convicted of Burglary, Aggravated Assault,

False Reports to Law Enforcement Authorities, Criminal Mischief, Disorderly Conduct,

Harassment, Criminal Trespass, and Terroristic Threats. On August 3, 1993, Cooley was

sentenced to 6 ½ to 15 years incarceration for aggravated assault, a consecutive 1 to 5

years incarceration for burglary, a consecutive 1 year probation for false reports to law

enforcement, and a consecutive 4 years probation for terroristic threats. Following a



                                             6
hearing on September 1, 1993, Judge Domitrovich modified the sentence for aggravated

assault to 5 ½ to 14 years.

       In December 1994, Cooley filed his first PCRA 3 action, which was denied by the

Court on April 11, 1995. Counsel for Cooley appealed to the Superior Court of

Pennsylvania, but the Superior Court affirmed on January 11, 1996.

       At this point Cooley’s appellate counsel withdrew and Cooley applied to the

Supreme Court of Pennsylvania to have new counsel appointed for his Petition for

Allowance of Appeal. On remand from the Supreme Court of Pennsylvania, the Common

Pleas Court of Erie County denied Cooley counsel. After this denial, on September 12,

1996, the Common Pleas Court granted Cooley’s counsel’s Motion to Withdraw. Cooley

then filed a pro se Petition for Allowance of Appeal with the Pennsylvania Supreme

Court, which was denied on March 10, 1997.

       Cooley filed a second PCRA motion which was denied as untimely under

Pennsylvania’s then new statute of limitations law for PCRA petitions on September 2,

1997. The Superior Court affirmed the denial on July 21, 1998, finding the petition to be

untimely. The Supreme Court of Pennsylvania denied Cooley’s Petition for Allowance of

Appeal on January 14, 1999.

       On February 26, 1999, Cooley filed a Federal Habeas Corpus Application in

District Court and his request for counsel to represent him in the matter was denied. The



       3
           Pennsylvania Post-Conviction Relief Act, Title 42 Pa.CS §9541, et. seq.

                                                7
District Court adopted the opinion of Magistrate Judge Baxter and denied relief in an

order dated September 4, 2001. Cooley filed a timely Notice of Appeal to this Court on

September 17, 2001.

                                               III.

         A statute of limitations defense is not a jurisdictional bar to review, but an

affirmative defense which must be raised by the defendant. Robinson v. Johnson, 313

F.3d 128, 131-32 (3d Cir. 2002). Defendants in this case concede that the statute of

limitations defense was not raised below and should be considered waived. (Appellee Br.

at 3).

                                               IV.

         The District Court found that Cooley’s claim concerning the Court’s failure to

issue a proper colloquy was unexhausted because Cooley did not fairly present it in his

petition for allowance of appeal to the Pennsylvania Supreme Court in the first PCRA

proceeding. State prisoners who have not fairly presented their claims to the highest state

court have failed to exhaust those claims. 28 U.S.C. § 2254(b)(1)(A); O’Sullivan v.

Boerckel, 526 U.S. 838 (1999). Federal Courts must refrain from addressing the merits of

any claim raised by a habeas petitioner that was not properly exhausted in the state court.

Coleman v. Thompson, 501 U.S. 722, 750 (1991).

         We find that the District Court was incorrect and hold that Cooley fairly presented

and exhausted his claim by raising it at several points in his first pro se Petition for



                                                8
Allowance of Appeal. Cf. Lines v. Larkins, 208 F.3d 153, 161-62 (3d Cir. 2000)

(discussing the manner in which a claim must be presented in a petition for allowance of

appeal and holding that Lines’ claim was unexhausted because “he [did not] discuss his

underlying claims at any point in his Petition for Allowance of Appeal”). In his

“Statement of the Case,” Cooley argued that “The petitioner was ordered to represent

himself, without a proper waiver of his right to counsel.” (App. Two at 541a) . In the

section entitled “Reasons Relied Upon for Allowance of Appeal,” Cooley again argued

that “the petitioner was ordered to represent himself without a knowing and intelligent

waiver of his rights to counsel.” (Id. at 551a).

       Cooley fairly presented the current claim to the Pennsylvania Supreme Court

through these two statements in his 1996 Petition for Allowance of Appeal, and as a

result we find that his state remedies are exhausted and we are entitled to address his

claim on the merits.

                                             V.

       When a defendant requests a substitution of counsel or chooses to represent

himself, the court must engage in two lines of inquiry. United States v. Welty, 674 F.2d

185, 187 (3d Cir. 1982). First, the court must decide if the reasons for the defendant’s

request for substitute counsel constitute good cause. Id. at 187. If the court determines

that the defendant has not shown good cause, the defendant is left with choosing between

his current counsel and proceeding to trial pro se. The decision to proceed pro se



                                               9
involves a waiver of the defendant’s Sixth Amendment right to counsel. This waiver

requires the court to engage in a second line of inquiry, in order to ensure that any

decision by a defendant to represent himself is knowingly and competently made. Id. at

188 (quoting Johnson v. Zerbst, 304 U.S. 458, 465 (1938); Faretta v. California, 422 U.S.

806, 835 (1975).

                                                A.

          Although it is true that there is no absolute right to particular counsel, Welty, 674

F.2d at 188 (quoting United States ex rel. Carey v. Rundle, 409 F.2d 1210, 1215 (3d Cir.

1969), substitution of counsel is warranted where the defendant can show good cause,

“such as a conflict of interest, a complete breakdown in communication, or an

irreconcilable conflict with his attorney.” Id. at 188. When a defendant requests a

substitution of counsel, the court must engage in at least some inquiry as to why the

defendant is dissatisfied with his attorney. Welty, 674 F.2d at 187. See United States v.

Stubbs, 281 F.3d 109, 117 (3d Cir. 2002). Only after proper inquiry and a finding that no

good cause justifies a change in counsel can the court insist that the defendant choose

between representation by existing counsel or proceeding to trial pro se. Welty, 674 F.2d

at 188.

          A Sixth Amendment violation occurs when the good cause determination is clearly

erroneous or the district court made no inquiry into the reason for the defendant's request

to substitute counsel. McMahon v. Fulcomer, 821 F.2d 934, 942 (3d Cir. 1987) (reversal



                                                10
warranted where district court relieved defendant's appointed attorney without inquiring

into reason for withdrawal).

       In this case, the record reveals no inquiry by the Court as to the reason for

Cooley’s dissatisfaction with his assigned counsel. Cooley was never afforded the

opportunity to state or explain for the Court his reasons for asking Arduini to withdraw as

counsel. Although the Court allowed Cooley’s counsel to explain why he thought Cooley

wanted him dismissed, the Court cut off Cooley’s attempt to explain after just a few

sentences.

       Consequently, the Court had no way of knowing whether Cooley had some valid

ground for seeking substitution of counsel. Indeed, as noted in Welty, irreconcilable

differences with one’s attorney may be sufficient to establish good cause. Without

allowing even a perfunctory explanation from Cooley as to the apparently irreconcilable

differences between him and counsel, the Court had no way of establishing whether or

not good cause existed and therefore failed to make the first part of the required inquiry.

                                        B.

       Courts must “indulge every reasonable presumption against waiver” of the right to

counsel. Stubbs, 281 F.3d at 117 (quoting Johnson, 304 U.S. at 464). Although

defendants may achieve dismissal or waiver of counsel through conduct, the behavior

warranting dismissal would have to be exceedingly inappropriate or dangerous. U.S. v.

Goldberg, 67 F.3d 1092 (3d Cir. 1995) (defendant's alleged conduct in threatening his



                                             11
court-appointed attorney's life did not support forfeiture of Sixth Amendment right to

counsel).

       A court also cannot infer a valid waiver of the right to counsel based on its

subjective impression of a defendant. United States v. Salemo, 61 F.3d 214, 221 (3d Cir.

1995). “[E]ven well founded suspicions of intentional delay and manipulative tactics can

provide no substitute for the inquiries necessary to protect a defendant’s constitutional

rights.” Welty, 674 F.2d at 189.

       In the instant case, not only did the Court not entertain every presumption against

waiver, but the Court was actually the first to suggest that Cooley wanted to proceed pro

se and waive his right to counsel. (App. Two at 125a ). Although Cooley may be

characterized as a difficult defendant, his conduct in no way rose to the level necessary to

implicate a waiver of counsel through conduct. Indeed, Cooley was consistent in his

desire to be represented by counsel and in his expressions to the court that he was not

capable of representing himself.

       The Court’s repeated assertions that Cooley had an attitude problem suggest that

its decision to discharge Arduini and limit Cooley to proceeding pro se or hiring private

counsel (which he could not afford) was based on a subjective impression of Cooley as

having an “attitude,” rather than on an informed analysis of his reasons for wanting new

counsel.

       Once the Court made it clear that it was going to allow Arduini to withdraw and



                                             12
refused to appoint additional counsel, the Court had the responsibility to engage in a

colloquy with Cooley to satisfy itself that a choice of self representation was made

“knowingly and intelligently, with an awareness of the dangers and disadvantages

                                  4
inherent in defending oneself.”       Welty, 674 F.2d at 188. See Faretta v. California, 422

U.S. 806, 835 (1975); Von Moltke v. Gillies, 332 U.S. 708, 724 (1948).

       A court should only accept a waiver after making a “searching inquiry” to satisfy

the court that the defendant’s waiver was understanding and voluntary. Welty, 674 F.2d

at 188-189; Stubbs, 281 F.3d at 118. In order to ensure that a defendant appreciates the

dangers and disadvantages of self-representation, the Court has the duty of advising the

accused “in unequivocal terms both of the technical problems he may encounter in acting

as his own attorney and of the risks he takes if his defense efforts are unsuccessful.”

Welty, 674 F.2d at 188; McMahon 821 F.2d at 945; Piankhy v. Cuyler, 703 F.2d 728, 730

(3d Cir. 1983); See Von Moltke, 332 U.S. at 724.

      Not only did the trial court refuse to appoint new counsel for the two months

preceeding Cooley’s retrial, it made no effort to explore with defendant the disadvantages

of self-representation. By this failure defendant was deprived of his Sixth Amendment




       4
         There may be differences among the Courts of Appeal as to the requisite scope of
inquiry a trial judge must make when a defendant elects to waive his right to counsel. See
McDowell v. United States, 484 U.S. 980 (1987) (White, J., dissenting from denial of certiorari);
Two other Courts of Appeals have supported the position of the Third Circuit interpreting the
Supreme Court’s decision in Faretta to require a searching inquiry. See United States v.
Edwards, 716 F.2d 822, 824 (11th Cir. 1983), United States v. Chaney, 662 F.2d 1148, 1152 (5th
Cir. 1981).

                                                13
right to counsel up to the day the retrial started.




                                                     VI.

     Even when a trial court commits a constitutional violation, we must determine

whether or not that error was harmless.5 Chapman v. California, 386 U.S. 18, 21-22

(1967). In order to excuse a constitutional error as harmless, the Government must prove

harmlessness beyond a reasonable doubt. Id. at 24; United States v. Toliver, 330 F.3d

607, 612 (3d Cir. 2003). An error is not harmless if there is a reasonable probability that

it might have contributed to the conviction. Id. at 23; Fayh v. State of Connecticut, 375

U.S. 85, 86-87(1963).

      By failing to conduct hearings required by both Welty and Faretta the trial court

effectively denied Cooley counsel (without a meaningful waiver) for the two months

immediately preceding his retrial. During this period, at a pro se pre trial appearance, he

waived his right to a jury trial. He had no counsel to advise him of the consequences of

this action, nor did the court engage defendant in any colloquy on the subject. At the same


        5
           A constitutional violation is per se prejudicial only if the error occurs during a “critical stage”
of the prosecutorial process. Bell v. Cone, 535 U.S. 685, 95-96 (2002); United States v. Cronic, 466 U.S.
648, 659, 662 (1984). What constitutes a critical stage requiring counsel depends upon “whether
potential substantial prejudice to defendant’s rights inheres in the...confrontation and the ability of
counsel to help avoid that prejudice.” United States v. Wade, 388 U.S. 218, 227 (1967). Since we find
that the constitutional error in this case was not harmless, we need not determine whether the two months
before trial constitute a “critical stage” of the prosecution. A recent Sixth Circuit decision has held that
the pre-trial preparation period is a critical stage of criminal proceedings, during which the denial of
counsel warrants application of Cronic’s presumption-of-prejudice analysis. Mitchell v. Mason, 325
F.3d 732 (6th 2003). See, e.g. Powell v. Alabama, 287 U.S. 45, 57, 53 (1932) (describing the pre-trial
period as possibly the most critical period of the proceedings).

                                                      14
time he was denied the assistance of counsel in preparing the case for trial. The assistance

of counsel might have resulted in more effective plea negotiations, the interviewing and

preparation of witnesses, a better understanding of the consequences of waiving a jury,

and the development of a trial strategy based on counsel’s investigation, consultation with

defendant, legal research and experience. We cannot hold that the absence of

representation during this two month period was harmless beyond a reasonable doubt.

                                          VII.

    For the reasons set forth above, the order of the district court dated September 4,

2001, is hereby reversed. This matter is hereby remanded to the district court with

instructions to issue the writ conditioned upon the Commonwealth’s right to conduct a

new trial within 120 days.




                                             15
TO THE CLERK:

         Please file the foregoing opinion.




                                        /s/ Joseph E. Irenas
                                        Senior District Judge
