                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 30 2001
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    ENRIQUE CARLOS MONTOYA,

                Petitioner-Appellant,

    v.                                                   No. 00-2292
                                               (D.C. No. CIV-99-280-LH/WWD)
    WILFRED ROMERO, Warden,                                (D.N.M.)
    Santa Fe County Correctional Facility;
    ATTORNEY GENERAL FOR THE
    STATE OF NEW MEXICO,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before SEYMOUR , BALDOCK , and LUCERO , Circuit Judges.



         After examining the briefs and 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.




*
      This order and judgment is not binding precedent, except under the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.
      Defendant appellant Enrique Carlos Montoya seeks a certificate of

appealability (COA) from this court allowing him to appeal the district court’s

denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254.

Because Mr. Montoya has not “made a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), we deny his application for a

COA and dismiss this appeal.


                                         I.

      On September 3, 1996, the State of New Mexico filed a civil lawsuit

against Mr. Montoya alleging violations of the state usury and unfair practices

laws in connection with Mr. Montoya’s alleged fraudulent brokering of real estate

loans. Subsequently, Mr. Montoya entered into a stipulated permanent injunction

in which he agreed to cease engaging in trade and commerce as a real estate loan

broker. When the state learned that Mr. Montoya had set up a sham corporation

under which he continued to engage in loan activity, it initiated criminal contempt

charges against him for willful violation of the terms of the injunction.

      On July 10, 1997, the state court commenced a hearing on the contempt

charges. One day prior to the hearing, July 9, 1997, counsel for Mr. Montoya

moved the court to withdraw as Mr. Montoya’s attorney because he was not

being paid. At the hearing, the judge granted counsel’s request to withdraw over

Mr. Montoya’s objection. Mr. Montoya then requested a continuance in order

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to obtain his records and files from his former counsel. At that time he indicated

to the court that he would be retaining new counsel. The court informed

Mr. Montoya that he had the right to appointed counsel if he qualified financially.

The court then granted the continuance, resetting the hearing for July 22 and 23,

1997. Before adjourning, however, the court granted the state’s request to take

and preserve the testimony of one state witness who presented a hardship request.

When Mr. Montoya objected, the court commented that Mr. Montoya had been in

court on numerous previous occasions and had, on at least one occasion, appeared

pro se, and also informed Mr. Montoya that he had the right to subpoena this

witness to return on July 22.

      When the contempt hearing reconvened on July 22 and 23, the trial court

announced that Mr. Montoya would be appearing pro se. When the trial court

asked for entries of appearance, Mr. Montoya entered his appearance pro se

without further objection or comment from either the trial court or the parties.

Following a two-day hearing, Mr. Montoya was found in criminal contempt for

willfully, deliberately, and intentionally violating the terms of the stipulated

permanent injunction. The trial court sanctioned Mr. Montoya to 179 days in jail.

The next day, July 24, 1997, Mr. Montoya’s retained counsel filed a motion for

his release pending appeal.




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         The state appellate court affirmed Mr. Montoya’s sentence, concluding that

he was not indigent, he did not seek the assistance of an attorney, he did not

request appointment of counsel, and he did not object to proceeding pro se.

Attorney Gen. v. Montoya , 968 P.2d 784, 787 (N.M. Ct. App. 1998). In his

federal habeas petition Mr. Montoya claimed (1) a violation of his Sixth and

Fourteenth Amendment rights to counsel at his contempt hearing; (2) a violation

of his right to jury trial; (3) that his sentence was punitive; and (4) that he was not

allowed to prepare a defense, or present evidence or witnesses on the first day of

his hearing. In denying his petition, the district court dismissed the last three

claims on the basis of failure to exhaust and procedural default. The court denied

Mr. Montoya’s right to counsel claim on the merits. On appeal to this court,

Mr. Montoya challenges only the district court’s dismissal of his right to counsel

claim.


                                          II.

         “The Sixth Amendment of the United States Constitution guarantees a right

to counsel in criminal proceedings. At the same time, a criminal defendant has

a right under the Sixth Amendment to waive this right to counsel and conduct his

own defense.”     United States v. Hughes , 191 F.3d 1317, 1323 (10th Cir. 1999)

(citations omitted). On appeal, Mr. Montoya alleges that the district court erred

in dismissing his claim that he was denied his constitutional right to counsel

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because he did not voluntarily, knowingly, and intelligently waive his right to

counsel at his 1997 contempt hearing. We review de novo the determination of

whether a waiver of the right to counsel was knowing and intelligent.   United

States v. Taylor , 113 F.3d 1136, 1140 (10th Cir. 1997). “[A] waiver of counsel

will not be valid unless it is an intentional relinquishment or abandonment of a

known right or privilege.”   Id. (quotations omitted). A determination of whether

a defendant’s waiver of counsel is valid involves a two-step inquiry. First, the

court must determine whether the defendant’s waiver was voluntary.      Id. Second,

we must ask whether the waiver was made knowingly and intelligently.      Id.

      Mr. Montoya appears to believe that the trial court’s decision to allow

direct testimony from one state witness before adjourning the hearing for

a twelve-day continuance, “forc[ed] him against his will to conduct his own

defense.” Appellant’s Br. at 6. We do not agree. We have reviewed the

taped transcript of the hearing and ascertained that once the court allowed

Mr. Montoya’s counsel to withdraw, it informed Mr. Montoya of his right to

appointed counsel if he was financially qualified, granted a twelve-day

continuance, and denied the state’s request to take testimony from any other

witnesses. Moreover, the court informed Mr. Montoya that he had the right to

subpoena the witness who had already testified to return when the hearing

reconvened, a procedure Mr. Montoya was familiar with as he subpoenaed


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other witnesses.   See State Ct. R. at 216-23. When the hearing reconvened,

Mr. Montoya did not object to proceeding pro se or inform the court that he had

not been able to obtain counsel. Moreover, the day after the contempt hearing

concluded, he had retained counsel who moved the court for his release pending

appeal. We conclude that this conduct, taken as a whole, demonstrates that

Mr. Montoya voluntarily chose to proceed with the hearing without counsel.

      In determining whether Mr. Montoya’s waiver of counsel was knowing

and intelligent, “we look to the record and the entire circumstances of the case,

including the defendant’s age and education, the defendant’s previous experience

with criminal trials, and the defendant’s background, experience, and conduct.”

Taylor , 113 F.3d at 1140 ; see also Faretta v. California , 422 U.S. 806, 835

(1975) (holding that in order for a waiver of counsel to be valid, the trial court

must ensure that the defendant’s waiver of his right to counsel is done knowingly

and intelligently, so that the record establishes that the defendant’s “choice is

made with eyes open”) (quotation omitted). We have stated that

      [i]deally, the trial judge should conduct a thorough and
      comprehensive formal inquiry of the defendant on the record to
      demonstrate that the defendant is aware of the nature of the charges,
      the range of allowable punishments and possible defenses, and is
      fully informed of the risks of proceeding  pro se .

United States v. Willie , 941 F.2d, 1384, 1388 (10th Cir. 1991).




                                          -6-
      In denying Mr. Montoya’s petition for habeas relief, the federal magistrate

judge rejected Mr. Montoya’s contention that his waiver of counsel at the

contempt hearing was not voluntary, knowing, and intelligent. Acknowledging

that the state court should have determined that Mr. Montoya’s waiver was

knowing, intelligent, and voluntary through a formal inquiry,   see Willie , 941 F.2d

at 1388, the magistrate judge noted that there are circumstances where a waiver

may be considered valid absent a formal inquiry. In these cases “the surrounding

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

indicate that he “actually understood his right to counsel and the difficulties of

pro se representation and knowingly and intelligently waived his right to

counsel.” Hughes, 191 F.3d at 1323-24. The magistrate judge then discussed in

some detail Mr. Montoya’s behavior both before and after the 1997 criminal

contempt proceedings, making it clear that Mr. Montoya used his right to counsel

to delay and confuse numerous legal proceedings. The magistrate judge noted

that a waiver of counsel can be “implied through conduct, particularly ‘when that

conduct consists of tactics designed to delay the proceedings.’” R. Vol. II, tab 39

at 3 (quoting Hughes , 191 F.3d at 1323).

      As the magistrate judge found, and the record supports, five different

attorneys had withdrawn from representing Mr. Montoya because of his

unreasonable conduct. In March 1999, a New Mexico Public Defender Sheri A.


                                           -7-
Raphaelson moved to withdraw as counsel for Mr. Montoya. In her motion she

stated that Mr. Montoya was found not to be indigent, failed to comply with

a repayment order, had refused legal advice, was not desirous of representation,

and used counsel “only as a typist for his pro se work.” R. tab 18, ex E at 1-2.

This is consistent with the record evidence that Mr. Montoya, acting pro se,

submitted numerous well-drafted letters and pleadings to the court.   See, e.g. ,

State Ct. R. at 548, 551, 554, 674, 740, 748.

      Moreover, Mr. Montoya appeared pro se at his merits trial. In its decision

on the merits of the state’s lawsuit against Mr. Montoya, the state court noted that

“[i]n my view, the Defendant has had ample opportunity for preparation and

presentation of defense, but he has severely burdened and abused the due process

of law to which he is entitled. The legal system has bent over to accommodate

the Defendant and he has taken that opportunity to kick it firmly in the behind.”

R. tab. 18, ex. K at 12. The federal magistrate judge noted that Mr. Montoya’s

“pattern of approach-and-avoidance spanned several contempt hearings . . . as

well as the trial on the merits in December 1998 and January 1998, (sic) at which

he again appeared pro se.”   Id. , tab. 39 at 7-8.

      We are aware that Mr. Montoya is not a trained attorney. This does not,

however, imply that he lacks familiarity with, or experience in, the courtroom.

The state noted that not only had Mr. Montoya been the subject of a plethora of


                                            -8-
litigation surrounding his questionable loan brokering activities, but he also had

criminal experience with the courts. R. tab 18, ex. BB at 5. Most applicable to

the circumstances here is our caution that

      “[t]he right to make a knowing and intelligent waiver of the right to
      counsel does not grant the defendant license 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.”

Hughes , 191 F.3d at 1323 (quoting    United States v. Allen , 895 F.2d 1577, 1578

(10th Cir. 1990)) (further quotation omitted).

      We recognize that the trial court could have done a more thorough job of

formal inquiry into Mr. Montoya’s understanding of his decision to go forward

pro se. We agree with the magistrate judge, however, that “[f]rom an

examination of the ‘entire circumstances’ of this case, it is abundantly clear that

this is a case where formal inquiry does not invalidate a defendant’s waiver of the

right to counsel.” R. Tab 39 at 7 (quoting     Taylor, 113 F.3d at 1140); see also

Hughes , 191 F.3d at 1324 (determining waiver of counsel to be valid because of

defendant’s handling of the case and despite lack of formal inquiry).

      After a careful review of the record and the applicable case law, we

conclude that “even though the [trial] court failed to make a comprehensive and

probing formal inquiry into the knowingness and intelligence of [Mr. Montoya’s]

waiver, looking at the circumstances as a whole, the facts on the record are

                                             -9-
sufficient in this case to establish that [Mr. Montoya] intelligently, knowingly and

voluntarily waived his right to counsel.”    Willie , 941 F.2d at 1391. Therefore,

Mr. Montoya fails to make a substantial showing of the denial of a constitutional

right as required under § 2253(c)(2). Specifically, Mr. Montoya fails to

demonstrate that “reasonable jurists would find the district court’s assessment

of the constitutional claims [here] debatable or wrong.”        Slack v. McDaniel ,

529 U.S. 473, 484 (2000). Accordingly, we DENY Mr. Montoya’s application

for a COA and DISMISS his appeal.



                                                           Entered for the Court



                                                           Bobby R. Baldock
                                                           Circuit Judge




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