                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           JUL 23 2003
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    RENE SEGURA VARGAS,

                Petitioner - Appellant,

    v.                                                    No. 02-8043
                                                    (D.C. No. 99-CV-179-D)
    SCOTT ABBOTT *, Warden, Wyoming                      (D. Wyoming)
    State Penitentiary, and HOKE
    MACMILLAN, Wyoming Attorney
    General, in their official capacities,

                Respondents - Appellees.


                            ORDER AND JUDGMENT           **




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of




*
      Scott Abbott is the current warden of the Wyoming State Penitentiary.
In accordance with Rule 43(c)(2) of the Federal Rules of Appellate Procedure,
Scott Abbott is substituted for Vance Everett as an appellee in this action.
**
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
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 Rene Segura Vargas, a Wyoming state prisoner, filed a habeas

petition under 28 U.S.C. § 2254 seeking relief from his state-court convictions.

The federal district court denied relief and declined to issue a certificate of

appealability (COA).   See 28 U.S.C. § 2253(c)(1)(A) (COA required to appeal).

This court granted a COA on the question of whether Mr. Vargas was denied his

constitutional right to counsel when he was required to proceed pro se in the

absence of a knowing and voluntary waiver of his right to counsel. We affirm the

district court’s denial of habeas relief.


                                      Background

      The state trial court appointed counsel for Mr. Vargas, and when he became

dissatisfied with that attorney’s representation, the court appointed a different

attorney to represent him. On the morning of the second day of his jury trial,

Mr. Vargas informed the judge that he wanted a different attorney because he did

not believe his current counsel was conducting his defense appropriately. He

requested that the trial be postponed to allow him time to find another lawyer.

The request to continue the trial was denied. The trial judge informed Mr. Vargas

that he did not have the right to the attorney of his choice, that his attorney was

doing a very good job defending him, and that he needed an attorney. Following

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a recess, Mr. Vargas stated that he neither wanted to represent himself nor

continue with his attorney. The judge explained that, although he had the right to

represent himself, he would be held to the same standards as an attorney during

trial and the judge could not help him. She recommended that Mr. Vargas not try

to represent himself, but reiterated that the trial would not be postponed and his

choice was to represent himself or continue with his attorney. Mr. Vargas stated

repeatedly that he wanted a lawyer and could not represent himself, but he

persisted in demanding a different attorney. Consequently, the judge ruled that he

had waived counsel, and appointed his attorney as stand-by counsel. During the

remainder of the trial, Mr. Vargas conducted no cross-examination and called no

witnesses (even though his attorney had subpoenaed defense witnesses). When

called upon to participate, Mr. Vargas either renewed his request for an attorney

or said nothing. He made a closing argument in which he complained about lack

of counsel and stated his defense theories.

      On appeal to the Wyoming Supreme Court, Mr. Vargas raised the issue that

he did not waive his right to counsel. That court held that he had “voluntarily,

knowingly and intelligently waived his right to counsel.”   Vargas v. State ,

963 P.2d 984, 990 (Wyo. 1998). The federal habeas petition followed.




                                           -3-
                                       Discussion

      The issue in this appeal is whether the Wyoming Supreme Court’s ruling is,

as Mr. Vargas claims, “contrary to, 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). Mr. Vargas argues that the Wyoming Supreme

Court ruled contrary to clearly established federal law as determined by the

United States Supreme Court in finding that his waiver of counsel was knowing

and intelligent. He concedes that his waiver was voluntary. He maintains,

however, that it was not knowing and intelligent because the trial judge failed to

inform him of “the nature of the charges, the statutory offenses included within

them, the range of allowable punishments thereunder, possible defenses to the

charges and circumstances in mitigation thereof, and all other facts essential to a

broad understanding of the whole matter.”         Von Moltke v. Gillies , 332 U.S. 708,

724 (1948). He argues that unless a trial judge advises the defendant of every

point listed in Von Moltke , a waiver of counsel is not knowing and voluntary.

      A trial court’s failure to conduct the inquiry described in     Von Moltke

“do[es] not prompt us to automatically reverse the conviction where the

surrounding facts and circumstances, including [the defendant’s] background and

conduct, demonstrate that [he] actually understood his right to counsel and the

difficulties of pro se representation and knowingly and intelligently waived his


                                            -4-
right to counsel.”   United States v. Willie , 941 F.2d 1384, 1389 (10th Cir. 1991)     .

We have recognized that it is best for the trial judge to conduct a comprehensive

formal inquiry, but “there is no precise litany of questions that must be asked of

defendants who choose self-representation.”        United States v. Turner , 287 F.3d

980, 983 (10th Cir. 2002) (quotations and citations omitted).       Von Moltke ’s own

language requires only that a waiver of counsel “be made with an        apprehension

of” the circumstances.      Von Moltke , 332 U.S. at 724 (emphasis added).

Moreover, in the later case of     Faretta v. California , 422 U.S. 806 (1975), the

Supreme Court stated that for a knowing and intelligent waiver of counsel,

a defendant “should be made aware of the dangers and disadvantages of

self-representation, so that the record will establish that ‘he knows what he is

doing and his choice is made with eyes open.’”       422 U.S. at 835 (quoting   Adams

v. United States ex rel. McCann      , 317 U.S. 269, 279 (1942)).

       In this case, Mr. Vargas was informed of the charges and possible penalties

at his arraignment   1
                         and he stated he understood. The trial court attempted to

“impress upon [Mr. Vargas] the inherent difficulties of self-representation.”

Turner , 287 F.3d at 984. Mr. Vargas stated repeatedly that he needed an attorney;

he clearly understood the risks and difficulties of self-representation.



1
      Mr. Vargas received two arraignments and two preliminary hearings
because errors were committed at his first preliminary hearing.

                                             -5-
We conclude that he made his choice with eyes open. Furthermore, Mr. Vargas

“cannot use his right to counsel to play a ‘cat and mouse’ game with the court, or

by ruse or stratagem fraudulently seek to have the trial judge placed in a position

where, in moving along the business of the court, the judge appears to be

arbitrarily depriving the defendant of counsel.”   Willie , 941 F.2d at 1390

(quotation omitted).

       The Wyoming Supreme Court’s conclusion that Mr. Vargas voluntarily,

knowingly, and intelligently waived his right to counsel was neither “contrary to,

[n]or involved unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Consequently, we affirm the district court's denial of habeas relief on this claim.


                                                     Entered for the Court



                                                     Stephanie K. Seymour
                                                     Circuit Judge




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