                   Not for Publication in West's Federal Reporter
                  Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                  For the First Circuit
No. 04-1051

                                 JOSEPH JORDAN,

                           Petitioner, Appellant,

                                         v.

                                 EDWARD FICCO,

                            Respondent, Appellee.


             APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

               [Hon. Patti B. Saris, U.S. District Judge]
            [Hon. Lawrence P. Cohen, U.S. Magistrate Judge]


                                      Before

                 Selya, Dyk* and Howard, Circuit Judges.



     John M. Thompson with whom Thompson & Thompson, P.C. was on
brief, for petitioner.
     Susanne G. Reardon, Assistant Attorney General, with whom
Thomas F. Reilly, Attorney General, was on brief, for respondent.




                                 June 13, 2005




     *
         Of the Federal Circuit, sitting by designation.
          Per Curiam.        This is an appeal from an order denying

Joseph Jordan's petition for a writ of habeas corpus.                   The issue

presented is whether the district court erred in concluding that

Massachusetts     courts    did   not   deny   Jordan     the   right   of   self-

representation, see Faretta v. California, 422 U.S. 806 (1975), or

certain concomitant procedural rights.            The Massachusetts Appeals

Court, in a decision that the Supreme Judicial Court declined to

review, held that Jordan invoked his right to self-representation

but then later waived it.            The district court decided that this

waiver   ruling    was     neither    "contrary    to,       [n]or   involved   an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States."                  28 U.S.C.

§ 2254(d)(1)(2000).        The court also rebuffed Jordan's claim that

the   state   court's      decision     was    based    on    "an    unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding." Id. § 2254(d)(2).                  We do not travel

the same decisional path as the other courts that have evaluated

Jordan's Faretta-related claims because, in our view, Jordan only

expressed a desire to represent himself under certain conditions

and those conditions never materialized.               We therefore affirm the

denial of the petition on this limited basis.

           In October 1991, a Massachusetts grand jury indicted

Jordan on charges of kidnaping, conspiracy to murder, assault by

means of a dangerous weapon, and battery.              Jordan was incarcerated


                                        -2-
pending trial.     The superior court originally appointed attorney

Alan Rubin, the regional supervisor of the Hampshire County office

of the Committee for Public Counsel Services, to represent him. On

May 4, 1992, Rubin moved to withdraw because of a conflict of

interest and was granted permission to do so.        That same day, the

court appointed attorney Scott Hamilton to replace Rubin and

continued Jordan's trial until July 22, 1992.

             In three identical motions, filed with the superior court

on June 17, 1992, July 7, 1992, and July 13, 1992 (but prepared and

mailed some time earlier from Jordan's place of incarceration),

Jordan expressed dissatisfaction with Hamilton's case preparation.

These motions, captioned as "Motion[s] to Proceed Pro Se," sought

relief in the form of (1) dismissal of the charges, (2) transfer of

venue   to   another   jurisdiction   (presumably    where   another   bar

advocate or public defender's office would be responsible for

defending Jordan), (3) that "[a]n Attorney-At-Law from without the

Hampshire County Bar Advocate Program and from without the Public

Defender's Office be appointed to defend [Jordan] concurrently with

the withdrawl [sic] of the currently appointed Bar Advocate," or

(4) that "[t]he defendant be allowed to proceed Pro Se in this

matter and, due to the circumstances of this case, that this

Honorable Court appoint a standby counsel."         On the final page of

his submission, Jordan made clear that self-representation was the

least preferred of the remedies sought:        "The defendant in this


                                  -3-
matter therefore respectfully requests that this Honorable Court

allow one of the foregoing alternatives to his proceeding pro se

or, short of those, allow him to proceed pro se . . . ."

              On July 8, 1992, Hamilton moved to withdraw as Jordan's

counsel. The superior court held a hearing on the motion that same

day, with Jordan in attendance. The court denied Hamilton's motion

because it did not want to continue the trial again, but it offered

to permit attorney Geri Laventis (whom Hamilton had introduced to

Jordan   as    possible      replacement     counsel      the    week   before)   to

participate as co-counsel.         Laventis could not participate on the

scheduled trial date so she declined.                  At this point, the court

stated that it would consider appointing co-counsel if the defense

so moved.

              On July 13, 1992, the same day that Jordan's third

"Motion to Proceed Pro Se" reached and was filed with the court,

Hamilton      acting   for    Jordan   moved      to   appoint    attorney   David

Pritchard as co-counsel.         The court granted the motion that same

day. After this motion was granted, Jordan made no further mention

of representing himself and permitted Pritchard and Hamilton to

represent him at trial without objection. Moreover, in a letter to

the superior court's Regional Administrative Justice dated July 13,

1992, but filed August 11, 1992, Jordan reiterated his desire for

counsel at his trial: "Regardless of whom is appointed as my

counsel,    although    I    certainly     hope    that    Ms.    Laventis   be   so


                                       -4-
appointed,1 I pray that this Honorable Court appoint new counsel

and remove Mr. Hamilton as my counsel as soon as possible."                      The

July 13 letter made no mention of self-representation or proceeding

pro se.        On July 29, 1992, Jordan was convicted on all charges.

               Jordan's entire argument to us is based on the factual

premise that Jordan wished to represent himself and sufficiently

communicated          that   wish   to   the    trial   court   to     trigger   the

Faretta (and Faretta derived) rights of which he says he was

denied.        We reject this factual premise and thus the argument

itself.         We may accept arguendo, as the state appeals court

concluded, that an assertion of Faretta rights may be efficacious

even if it is only made on the condition that another requested and

preferred form of relief be deprived. See, e.g., Adams v. Carroll,

875 F.2d 1441, 1444-45 (9th Cir. 1989).                 But this does not mean

that       a   conditional      assertion      of   Faretta   rights    is    always

efficacious. See United States v. Frazier-El, 204 F.3d 553, 558-61

(4th Cir. 2000); id. at 566-67 (Murnaghan, J., dissenting). Where,

as   here,      the   alleged    assertion     of   Faretta   rights    is   clearly

conditioned on the denial of a preferred form of requested relief

involving counseled representation, and where, as here, a variant



       1
      The reference to Ms. Laventis in the July 13 letter is a bit
odd, as Laventis had declined the offer to be appointed co-counsel
five days earlier at the July 8 hearing. In any event, regardless
whether the letter was written on July 13 or shortly before, it is
clear that the letter was written after the thrice-filed Motion to
Proceed Pro Se was sent to the court.

                                         -5-
of the preferred form of relief is granted without subsequent

objection or renewal of the request for self representation,2 it

would undermine the Sixth Amendment to treat the conditional

assertion of Faretta rights as efficacious.         Such a ruling could

pave the way for inadvertent waivers of the right to counsel by

defendants who "occasional[ly] mus[e] on the benefits of self-

representation," Frazier-El, 204 F.3d at 558-59, (citation and

internal   quotation   marks   omitted),   and   thereby   undermine   the

"constitutional primacy" of this right vis-à-vis the right to self-

representation, id. at 559; see United States v. Proctor, 166 F.3d

396, 401 (1st Cir. 1999).       We are unwilling to endorse such a

result.

           Affirmed.




     2
      Jordan suggests that his third Motion to Proceed Pro Se was
filed after the appointment of Pritchard as co-counsel and served
as de facto notice to the trial court that Jordan preferred self-
representation to combined representation by Pritchard and
Hamilton. Under all the circumstances, the trial court only could
have inferred that the third motion was prepared and mailed prior
to July 13 when the court acted on Jordan's request that he not be
represented by Hamilton, since the motion arrived at the court on
July 13.

                                  -6-
