                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 14a0244n.06

                                         Case No. 12-4244                           FILED
                                                                               Mar 31, 2014
                          UNITED STATES COURT OF APPEALS                   DEBORAH S. HUNT, Clerk
                               FOR THE SIXTH CIRCUIT


BISWANATH HALDER,                                    )
                                                     )
       Petitioner-Appellant,                         )
                                                     )         ON APPEAL FROM THE UNITED
v.                                                   )         STATES DISTRICT COURT FOR
                                                     )         THE NORTHERN DISTRICT OF
TERRY TIBALS, Warden,                                )         OHIO
                                                     )
       Respondent-Appellee.                          )
                                                     )
                                                     )


BEFORE: CLAY and DONALD, Circuit Judges; MAYS, District Judge.*

       BERNICE B. DONALD, Circuit Judge. An Ohio jury convicted Petitioner Biswanath

Halder of multiple counts of murder and kidnapping, resulting in a sentence of life imprisonment

without parole. Relying on facts recited by the Ohio courts, the District Court denied Halder’s

petition for a writ of habeas corpus under 28 U.S.C. § 2254. On appeal, Halder challenges the

state courts’ determinations that he was competent to stand trial and not entitled to represent

himself as unreasonable under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA). For the reasons identified below, we hold that they were not. We therefore AFFIRM

the denial of Halder’s petition for a writ of habeas corpus.

*
 The Honorable Samuel H. Mays, Jr., United States District Judge for the Western District of
Tennessee, sitting by designation.
Case No. 12-4244, Halder v. Tibals




                                                I.

       On May 9, 2003, Halder used a sledgehammer to break into the Peter B. Lewis building

at Case Western Reserve University (CWRU) in Cleveland, Ohio, and went on a shooting

rampage. Dressed in a flak jacket, an army helmet, and an athletic supporter, and carrying both a

Tech 9 semi-automatic and a Berretta nine-millimeter handgun, Halder shot and killed the first

person he encountered and fired indiscriminately at the occupants and police who later arrived.

He then held a number of people hostage for approximately eight hours before surrendering to

the Cleveland SWAT team.

       A.      Competency Challenge.

       On May 29, 2003, the Cuyahoga County Grand Jury handed down a 338-count

indictment against Halder that included charges for aggravated murder, felony murder, mass

murder, attempted murder, kidnapping, aggravated burglary, terrorism, and unlawful possession

of dangerous ordnance. Halder pleaded not guilty at his arraignment, and his lawyers challenged

his competency to stand trial.

       The trial court held the first of two competency hearings on February 23-24 and March

21-23, 2005. Three mental health experts submitted reports and testified regarding Halder’s

competency: Dr. James Eisenberg, Dr. Barbara Bergman, and Dr. John Fabian. Although Drs.

Eisenberg and Fabian concluded that Halder was not competent to stand trial, Dr. Bergman

determined that he was.

       Dr. Eisenberg, who testified for the defense, had been a psychologist for twenty-seven

years and a forensic psychologist for fifteen. He met with Halder on five separate occasions for

a total of eleven hours. Dr. Eisenberg ultimately testified that Halder was not competent to stand




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Case No. 12-4244, Halder v. Tibals


trial, but he provided two reports on Halder whose conclusions conflicted. In a report dated

November 5, 2003, Dr. Eisenberg opined that Halder suffered from a personality disorder but

was competent to stand trial. In a later report, dated May 24, 2004, he concluded that Halder

manifested persecutory and grandiose symptoms and that Halder’s delusional conspiracy beliefs

“made it nearly impossible for him to meaningfully assist his counsel with his defense.” Dr.

Eisenberg arrived at the second conclusion without personally re-evaluating Halder, and his final

meeting with Halder took place more than a year before his testimony at the competency hearing.

       Dr. Bergman, who testified for the State, had been a psychologist for thirty-five years and

a forensic psychologist for twenty-nine. She had completed over fifteen hundred competency

evaluations. Like Dr. Eisenberg, Dr. Bergman met with Halder on five separate occasions;

however, she spent a total of fourteen hours with Halder, and her last meeting with him took

place two weeks before her testimony at the competency hearing. Dr. Bergman testified that

although Halder suffered from a severe personality disorder, she found no evidence that he

suffered from a major mental disorder. She also observed that Halder was capable of discussing

in great detail the events leading up to the shootings, as well as the shootings themselves.

       Regarding Halder’s specific understanding of the legal proceedings against him, Dr.

Bergman testified as follows:

       [Halder] understood the charges. He knows what he’s charged with. He
       didn’t particularly understand what the designation, “aggravated” meant
       with aggravated murder but he knows he’s accused of killing someone.
       He knows the person’s name. He knows why he’s charged with attempted
       murder. He knows all the charges. He knows what the charges mean, what
       they allege.

       ....

       He told me what plea he wanted to enter and gave me a rationale for why he
       wanted to enter that plea.


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Case No. 12-4244, Halder v. Tibals



       ....

       [H]e is capable of understanding the nature and significance of the charges[.]

Regarding Halder’s ability to assist in his defense, Dr. Bergman stated the following:

       [Halder] is capable of understanding the adversarial nature of the prosecutorial
       process; he is capable of participating in a meaningful manner in the
       process, in the courtroom while it’s going on and in my opinion, he is
       capable of consulting with his attorneys to develop a defense.

       Dr. Fabian had been a practicing forensic psychologist for six years and held a law

degree. The trial court contacted him to evaluate Halder because of Dr. Eisenstein’s and Dr.

Bergman’s conflicting diagnoses. Dr. Fabian met with Halder on four separate occasions for a

total of twelve hours.1 He opined that Halder suffered from both delusional and personality

disorders and concluded that Halder was incapable of rationally assisting his lawyers. Dr. Fabian

also testified, however, that “the issue of [Halder’s] competency is a close call,” and he observed

that “there is some room for debate among experts about whether [Halder] suffers from both a

delusion and a personality disorder.”

       The trial court ruled that Halder had failed to prove by a preponderance of the evidence

that he was incompetent to stand trial, finding that Dr. Eisenberg was the least credible of the

three mental health experts, that Dr. Fabian was the least experienced of the three, and that Dr.

Bergman was the most credible and most experienced. The court also observed that Halder had

given both Drs. Bergman and Fabian “detailed information about his involvement in the

shooting[s] on May 9, 2003.” Consequently, the court concluded, “there [wa]s evidence that
1
  Although the state court of appeals stated that Dr. Fabian met with Halder for a total of ten
hours, the trial court noted that Dr. Fabian prepared two reports, dated January 10 and March 10,
2005, respectively, and that he met with Halder for ten hours to prepare for his first report. At
the request of Halder’s counsel, Dr. Fabian spent an additional two hours with Halder on
February 26, 2005.


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Case No. 12-4244, Halder v. Tibals


[Halder] ha[d] a sufficient present ability to consult with his attorneys with a reasonable degree

of rational understanding.”

       At Halder’s request, the trial court held a second competency hearing on November 10,

2005. This time, Halder called Dr. Jeffrey L. Smalldon, who met with Halder on one occasion

for a total of two-and-a-half hours to evaluate his competency.2 Dr. Smalldon concluded that

Halder “[wa]s unable, due to the symptoms of a severe mental illness, namely delusional

disorder, combined grandiose and persecutory type, to demonstrate a rational appreciation of the

legal proceedings.” Dr. Smalldon noted, however, that the symptoms he identified did not

prevent Halder from assisting counsel in the preparation of his defense. On this point, Dr.

Smalldon testified as follows: “I shouldn’t say [that the symptoms] prevent [Halder’s] ability [to

assist in his defense]. [They] [v]ery seriously compromise his ability to assist counsel in his own

defense.” (Emphasis added.)

       The State re-called Dr. Bergman to testify. The trial court found her to be more credible

than Dr. Smalldon because of the significantly greater amount of time that she had spent

interviewing Halder and because “Dr. Bergman spen[t] more time in her practice evaluating

patient’s [sic] competency than d[id] Dr. Smalldon, who spen[t] most of his time doing

evaluations in child custody cases.” The court concluded that Halder’s mental condition had not

changed since its previous decision and determined again that Halder had not proved

incompetency to stand trial by a preponderance of the evidence.




2
  Dr. Smalldon previously had met with Halder on two occasions, in August 2005, for a total of
five to six hours to determine whether he was sane at the time of the shooting incident on May 9,
2003.


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Case No. 12-4244, Halder v. Tibals


       B.        Self-Representation Request.

       On November 7, 2005, seven days before his trial was to commence, Halder filed a pro se

motion to disqualify his second set of lawyers and have a third set appointed.3 Two days later,

on November 9, 2005, the trial court conducted a pretrial hearing at which it considered each of

Halder’s complaints in turn,4 determined that they were unfounded, and ultimately overruled

them. At that time, the following colloquy ensued:

       Halder:         As to my motion to disqualify counsel, I mean, you are done with it?

       Trial Court:    I just ruled on it. Yes, sir.

       Halder:         In this case, from now onward I want to proceed pro se.

       Trial Court:    You want to represent yourself pro se?

       Halder:         Yes.

       Trial Court:    Would you like to say anything about that, sir?

       Halder:         Anything about what?

       Trial Court:    Your reasons. You are making a motion of the Court, an oral motion of the
                       Court to represent yourself?

       Halder:         Yes. I made myself very clear that my attorneys do not know the
                       background of the case, have done no discovery whatsoever. They have
                       not contacted a single witness, despite the fact that I know numerous
                       people around the world. And they have not done anything. Therefore, I
                       will be much better off having pro se than having these lawyers.

       ....



3
  Halder had filed a total of “six written and several oral motions to disqualify his [first set of]
lawyers.” State v. Halder, No. 87974, 2007 Ohio App. LEXIS 5258, at *30-31 (Ohio Ct. App.
Nov. 8, 2007).
4
  Halder’s motion to disqualify raised four complaints about his counsel, none of which are
relevant to this appeal.


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Case No. 12-4244, Halder v. Tibals


       Trial Court:   Mr. Halder, I am not going to rule on this right now, because I would like
                      to look at two cases before I make any decision on this. Because it is a
                      capital case, I want to look at a couple of cases. So we are going to
                      continue. During the break, I will get a couple of the cases. All right?

       Halder:        One case. Faretta versus California.

       Trial Court:   Can you spell it?

       ....

       Halder:        F A R E T T A. Faretta, 422 U.S. 806, 95 Supreme Court 2575.

       Trial Court:   I will review that case, also, before I make any decisions. Faretta versus
                      California.

       The following day, after reviewing both U.S. Supreme Court and Ohio cases on the issue

of pro se representation, the trial court denied Halder’s request to represent himself as

“untimely” and “merely a tactic for delay.” The court observed that Halder “was indicted on this

case nearly two and-a-half years ago, and the voir dire with respect to jurors and the jury is due

to begin in five days.” “Furthermore,” the court explained, “the defendant made his pro se

motion immediately after the Court denied his written motion to disqualify his current

attorneys.”

       On November 14, 2005, the trial court entered an addendum to the denial of Halder’s

motion, reiterating its review of Faretta v. California, 422 U.S. 806 (1975), and stating that

Halder’s motion was “untimely, equivocal, and moreover, [wa]s done for the purpose of delay.”

The court also delineated several specific factual considerations that underlay its decision, the

first twelve of which were as follows:

       1. [Halder] utilized two teams of appointed counsel for a total of 30 months;

       2. [Halder] made six motions to disqualify the first team of lawyers;



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Case No. 12-4244, Halder v. Tibals


       3. When the Court granted the Motion to Withdraw Counsel on May 12, 2005, Mr.
          Halder gave the Court a short list of lawyers (one of which was [his present counsel]),
          requesting he receive a lawyer from the list;

       4. Agreeing to Mr. Halder’s specific request, the Court appointed [Halder’s present
          counsel] on May 20, 2005;

       5. Mr. Halder ha[d] utilized this second team since that date;

       6. Mr. Halder ha[d] appeared in Court with his attorneys on multiple occasions;

       7. Mr. Halder ha[d] sought and received 19 continuances;

       8. Mr. Halder based his request for self-representation in Court on counsel not getting
          discovery, not contacting witnesses and not doing anything they are supposed to do;

       9. Mr. Halder’s request came immediately after the Court denied his Motion to
          Disqualify . . .;

       10. Mr. Halder’s motion was not an attempt to disqualify counsel in order to represent
          himself pro se;

       11. Mr. Halder requested leave to represent himself only five days before trial was to
          commence;

       12. In Dr. Bergman’s report, Mr. Halder explained that he would not consider
          representing himself because he ha[d] no access to the resources he would need to
          gather evidence and to prepare the case (internet, phone, fax, addresses, etc.), and he
          does not have the training to know the rules in court. He observed that he would be no
          match against the prosecutor at a trial[.]

       Halder proceeded to trial, and on December 16, 2005, the jury found him guilty of 3

counts of aggravated murder, 35 counts of capital murder, 14 counts of aggravated burglary, 143

counts of kidnapping, and 1 count of unlawful possession of dangerous ordnance. Although the

trial court granted Halder’s subsequent motion for acquittal on a terrorism charge and ordered the

dismissal of several kidnaping charges, Halder ultimately was sentenced to life imprisonment

without parole. He also received consecutive sentences for certain firearm specifications.




                                              -8-
Case No. 12-4244, Halder v. Tibals


                                                 II.

       Halder timely appealed to the Eighth Appellate District of the Ohio Court of Appeals,

challenging the trial court’s competency and self-representation determinations among others.

The state court of appeals overruled all of Halder’s assignments of error, affirmed the trial

court’s judgment, and denied Halder’s subsequent motion for reconsideration. Halder sought

leave to appeal the denial to the Ohio Supreme Court, which declined review and dismissed

Halder’s claims “as not involving any substantial constitutional question.” Halder’s subsequent

application for state post-conviction relief was similarly unsuccessful.5

       On July 22, 2009, Halder filed a petition for a writ of habeas corpus under 28 U.S.C. §

2254 in the United States District Court for the Northern District of Ohio, raising only the trial

court’s competency and self-representation determinations as errors. The District Court referred

Halder’s petition to a federal magistrate judge, who began by concluding that Halder had failed

to rebut the correctness of the facts as found by the state court of appeals. Relying on those facts,

the magistrate judge recommended that the District Court deny the petition.

       Although Halder filed objections to the magistrate judge’s report and recommendation,

the District Court found the objections limited to the magistrate judge’s assessment of the state

court rulings.   Consequently, the District Court adopted the remainder of the report and

recommendation, including its facts, as written; denied Halder’s petition; and declined to issue a

certificate of appealability (COA).      As to Halder’s competency claim, the District Court

5
  Halder apparently filed an application to re-open his direct appeal in the Ohio Court of
Appeals, raising claims of ineffective assistance of appellate counsel that both that court and the
Ohio Supreme Court denied, and a separate petition for post-conviction relief in the trial court on
January 23, 2007. The State avers that a decision on the petition has not yet been rendered, but a
case number search on the trial court’s website indicates that the case is closed. In any event,
Halder properly has exhausted the claims at issue in his federal habeas petition, infra, because
they both were fairly presented to the Ohio Court of Appeals and the Ohio Supreme Court. See
Wagner v. Smith, 581 F.3d 410, 414 (6th Cir. 2009).


                                                -9-
Case No. 12-4244, Halder v. Tibals


concluded that Halder “ha[d] failed to show, by clear and convincing evidence, that the state

courts’ decisions were the result of an unreasonable determination of the facts.” Regarding

Halder’s right to self-representation, the District Court reached three conclusions:

        (1)    “Given the fact that this was a capital case with hundreds of charges, any request
               to permit [Halder] to develop his own defense would inevitably have lead [sic] to
               a delay in the proceedings”;

        (2)    The state courts’ determination that Halder’s “request was untimely and offered
               merely as a stratagem for delay” was not objectively unreasonable; and

        (3)    The state courts’ determination that Halder’s “request to self-represent was
               equivocal was neither contrary to nor an unreasonable application of clearly
               established federal law, nor rested upon an unreasonable determination of the
               facts.”

        Halder timely appealed to this court, filed an application for a COA, and moved to

proceed in forma pauperis. We granted the application and motion and directed the clerk of

court to issue a briefing schedule on both of the issues raised in Halder’s habeas petition. The

petition identified the following issues for review:

       1).     Mr. Halder was unconstitutionally denied his right to represent himself. Faretta v.
               California, 422 U.S. 806 (1975), Fifth, Sixth and Fourteenth Amendments to the
               U.S. Constitution.

       2).     A defendant may not be found competent to stand trial if the defendant has proven
               by a preponderance of the evidence that the defendant cannot assist in his or her
               own defense, and no competent evidence has been presented otherwise. Pate v.
               Robinson (1966), 383 U.S. 385; Drope v. Missouri (1975), 420 U.S. 162. Bishop
               v. United States (1956), 350 U.S. 961. Fifth and Fourteenth Amendment to U.S.
               Constitution.

       Halder’s brief rephrases the issues to ask whether the state courts “unreasonably applied

clearly established federal law” or based their decisions “on an unreasonable determination of

the facts in light of the evidence presented” when they determined that Halder was competent to

stand trial and denied Halder’s request to represent himself at trial.



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Case No. 12-4244, Halder v. Tibals


                                               III.

       AEDPA prohibits federal courts from granting habeas relief

       with respect to any claim that was adjudicated on the merits
       in State court proceedings unless the adjudication of the
       claim . . . was contrary to, or involved an unreasonable
       application of, clearly established Federal law . . . or . . .
       was based on an unreasonable determination of the facts
       in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

       This court reviews de novo a district court’s ultimate denial of habeas relief under

AEDPA but generally reviews a district court’s findings of fact for clear error.         Awkal v.

Mitchell, 613 F.3d 629, 638 (6th Cir. 2010). Where “the district court did not conduct an

evidentiary hearing and relied solely upon the state court record,” however, this court reviews its

factual findings de novo as well. Curvan v. Trombley, 466 F. App’x 475, 478 (6th Cir. 2012)

(citing Matthews v. Ishee, 486 F.3d 883, 889 (6th Cir. 2007)). Here, the magistrate judge

expressly relied on the opinion of the state court of appeals for its findings of fact, and the

District Court expressly accepted those findings as written. Accordingly, we review de novo the

District Court’s ultimate denial of Halder’s petition as well as the findings of fact on which the

District Court relied.

        A. Competency.

       The District Court determined, consistent with the report and recommendation, that the

question of “[a] defendant’s competency is an issue of fact, to which deference must be paid,”

and concluded that Halder “ha[d] failed to show, by clear and convincing evidence, that the state

courts’ decisions were the result of an unreasonable determination of the facts.” On appeal,

Halder acknowledges that the clear and convincing evidence standard is appropriate, citing, like

the District Court, this court’s decision in Filiaggi v. Bagley, 445 F.3d 851, 858 (6th Cir. 2006).



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Case No. 12-4244, Halder v. Tibals


Halder contends, however, that “there was little reliable, credible evidence that [he] was capable

of rationally assisting in his defense.” (Id.)

        In Filiaggi, the stun belt used to restrain a defendant misfired as he was being transported

to court. 445 F.3d at 853. Afterward, the defendant “was visibly shaken, his back was burned,

and he suffered muscle spasms,” and so his counsel requested an examination of his competence

to stand trial. Id. One of the psychiatrists who examined the defendant “stated that it was his

‘unequivocal opinion’ that [the defendant] was incapable of participating in his own defense ‘for

at least two days’ following the shock,” and the defendant submitted affidavits from his attorneys

stating that he was “‘foaming at the mouth’ and often in ‘an agitated, catatonic stupor.’” Id. at

857. After reviewing the evidence, however, including another mental health expert’s

determination that “Filiaggi was ‘mentally alert’ and ‘oriented,’” the trial court concluded that

the defendant was malingering and proceeded with his trial. This court subsequently determined

that the Ohio Supreme Court’s conclusion that the defendant was competent during his trial was

not contrary to or an unreasonable application of clearly established federal law or an

unreasonable determination of the facts in evidence. Id. at 858.

        Here, a fortiori, not one of the mental health experts who testified at Halder’s

competency hearings provided an “unequivocal opinion” that Halder was not competent to stand

trial. Dr. Eisenberg gave conflicting opinions as to Halder’s competency, testifying at the

competency hearing that Halder was incompetent although he had last met with Halder more

than a year before the hearing and had not personally re-evaluated him.

        Although Dr. Fabian opined that Halder suffered from both delusional and personality

disorders and concluded that Halder was incapable of rationally assisting his lawyers, he also

testified that “the issue of [Halder’s] competency is a close call” and observed that “there is some




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Case No. 12-4244, Halder v. Tibals


room for debate among experts about whether [Halder] suffers from both a delusion and a

personality disorder.” He also was the least experienced of the mental health experts who

evaluated Halder.

          Finally, Dr. Smalldon, who re-examined Halder’s competency to stand trial at Halder’s

request, concluded that Halder suffered from a delusional disorder that prevented him from

demonstrating a rational understanding of the legal proceedings in which he was participating

but did not prevent Halder from assisting in his defense. This finding is especially significant

given that the State contends that Halder failed to preserve any claim that he had no rational

understanding of the proceedings against him. Indeed, the District Court expressly noted that

Halder did not challenge his rational or factual understanding in his objections to the magistrate

judge’s report and recommendation. (See District Ct. Op., ECF # 23, at PageID # 8136 n.6

(“The record before the Court indicates, and petitioner does not argue otherwise in his

objections, that the first part of the Dusky [v. United States, 362 U.S. 402, 402 (1960) (per

curiam)] standard—a rational and factual understanding of the proceedings—was not in

dispute.”).)6 Thus, to the extent that only Halder’s ability to assist in his defense is at issue, Dr.

Smalldon’s testimony suggests that Halder’s competency claim cannot prevail.

          But Halder’s failure to preserve a challenge to his rational and factual understanding of

the proceedings against him would not prevent this court from considering the challenge on

appeal. See Souter v. Jones, 395 F.3d 577, 585 (6th Cir. 2005).7 And even if it did, Halder’s


6
  Moreover, during Halder’s first competency hearing, he agreed with the State that he “[wa]s
capable of understanding the nature and objective of the proceedings against him.” (Trial Court
Competency Ruling, ECF No. 7-1, Ex. 5, PageID # 458 n.1.)
7
    In Souter, this Court stated the following:

          We have long held that with regards to a magistrate judge’s recommendation,
          “a party shall file objections with the district court or else waive right to


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Case No. 12-4244, Halder v. Tibals


ability to press his claim that he was not competent to stand trial would not thereby be

compromised. Under the Supreme Court’s opinion in Dusky, a defendant’s competency to stand

trial depends upon both his rational and factual understanding of the proceedings against him and

his ability to assist his lawyers with his defense. 362 U.S. at 402; accord Drope v. Missouri, 420

U.S. 162, 172 (1975). It is thus telling that Dr. Bergman expressly determined that Halder not

only understood the nature of the charges against him and the pleas available to him but also that

he was capable of meaningfully participating in the prosecutorial process and consulting with his

attorneys to develop a defense.

       Halder does not dispute that Dr. Bergman was the most experienced of all the mental

health experts who testified regarding his competency, nor that she spent the most time

examining him. Neither does he assert that, like the defendant in Filiaggi, he ever was “in ‘an

agitated, catatonic stupor,’” 445 F.3d at 857, or otherwise prevented from understanding the

proceedings against him or consulting with his attorneys to develop a defense. Accordingly, as

the District Court concluded, Halder “has failed to show, by clear and convincing evidence, that

the state courts’ decisions [regarding his competency to stand trial] were the result of an

unreasonable determination of the facts.” His competency claim must therefore fail.

        B. Self Representation.

       The District Court’s conclusions regarding the denial of Halder’s right to represent

himself differed somewhat from those of the magistrate judge’s report and recommendation.



       appeal.” United States v. Walters, 638 F.2d 947, 950 (6th Cir. 1981). . . .While
       we have regularly enforced the Walters rule, we have also noted that “it plainly
       is not a jurisdictional rule; the court of appeals retains subject matter
       jurisdiction over the appeal regardless of the untimely filing or nonfiling of
       objections.” Kent v. Johnson, 821 F.2d 1220, 1222 (6th Cir. 1987).

395 F.3d at 585.


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The District Court agreed that (1) “[g]iven the fact that this was a capital case with hundreds of

charges, any request to permit [Halder] to develop his own defense would inevitably have lead

[sic] to a delay in the proceedings”; (2) the state courts’ determination that Halder’s “request was

untimely and offered merely as a stratagem for delay” was not objectively unreasonable; and (3)

the state courts’ determination that Halder’s “request to self-represent was equivocal was neither

contrary to nor an unreasonable application of clearly established federal law, nor rested upon an

unreasonable determination of the facts.” But the District Court declined to adopt the report and

recommendation’s conclusion that Halder’s request for self-representation was made voluntarily

and knowingly, finding it unnecessary to reach that issue.

       Halder raises two challenges to the denial of his request to represent himself. First, he

asserts that the request was timely, contending that he “in no way expressed that he wished for

his trial to be delayed” and noting that a defendant’s request to proceed pro se generally “is

timely if it is done prior to the jury’s being selected or sworn.” Halder also observes “[that] this

Court has indicated that a self-representation request can be timely even if it comes during trial,

provided that the request is made promptly after the grounds for dissatisfaction with trial counsel

arose.” (Emphasis in original.) Second, Halder contends that “[his] words were clear” and that

the state courts’ conclusion that his request to represent himself was equivocal was unreasonable.

       As the Supreme Court made clear in Faretta, the Sixth Amendment guarantees a criminal

defendant the right to “competently and intelligently waive his Constitutional right to assistance

of counsel.” 422 U.S. at 814 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279

(1942)). But the right is not absolute: the waiver must be timely made. Martinez v. Court of

Appeal of California, Fourth Appellate Dist., 528 U.S. 152, 162 (2000). Further, the waiver is

not “to be used as a tactic for delay.” United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.




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Case No. 12-4244, Halder v. Tibals


2000). This court has explained that a request to represent oneself is untimely, even “if made

prior to the selection and swearing of the jury, . . . when the prosecution makes an affirmative

showing that the defendant’s request . . . is merely a tactic to secure a delay in the proceeding,”

Lewis v. Robinson, 67 F. App’x 914, 919 (6th Cir. 2003) (quoting Robards v. Rees, 789 F.2d

379, 383 (6th Cir. 1986)) (internal quotation marks omitted).

        Here, Halder requested that he be allowed to represent himself five days before his trial

was scheduled to begin. And in addition to Halder’s never previously having requested to

proceed pro se and the numerous motions to disqualify counsel that he had filed, a litany of facts

informed the state courts’ determination that this request was “untimely, equivocal, and…done

for the purpose of delay.” As the trial court recited, Halder had used two teams of lawyers for a

total of thirty months. After discharging his first set of lawyers, he obtained counsel from a short

list of lawyers that he provided to the trial court. And when he attempted to discharge his second

set of lawyers, he did not seek to represent himself, but rather requested the appointment of a

third set.

        Halder also had sought and received nineteen continuances. And although he moved to

represent himself before the jury was selected or sworn, hundreds of charges and the death

penalty were at issue in the case against him. In light of this context, which a trial judge must

fully consider “to distinguish between a manipulative effort to present particular arguments and a

sincere desire to dispense with the benefits of counsel,” Frazier-El, 204 F.3d at 560, the state

courts’ denial of Halder’s request to represent himself was not objectively unreasonable. See

also United States v. Mackovich, 209 F.3d 1227, 1237 (10th Cir. 2000) (“The record in this

case . . . . adequately supports the district court’s finding that [the defendant] asserted his right to

self-representation in an attempt to delay the trial and abuse the judicial process.”). The denial of




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Case No. 12-4244, Halder v. Tibals


Halder’s request to represent himself, therefore, was not an unreasonable application of clearly

established federal law.

                                                IV.

       Halder is unable to establish by clear and convincing evidence that the state court

decisions deeming him competent to stand trial were the result of an unreasonable determination

of the facts. Neither can he establish that the denial of his request to represent himself was an

unreasonable application of clearly established federal law. Accordingly, we AFFIRM the denial

of Halder’s petition for a writ of habeas corpus.




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