UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
decided: October 24, 1974.
UNITED STATES OF AMERICA EX REL. JOSE JUAN SOTO, APPELLANT
UNITED STATES OF AMERICA
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C.Civil No. 73-1410).
Van Dusen, Hunter and Weis, Circuit Judges.
Author: Van Dusen
Opinion OF THE COURT
VAN DUSEN, Circuit Judge.
This is an appeal from the district court's denial of a motion under 28 U.S.C. § 2255*fn1 to vacate or set aside movant-appellant's sentence. Since the facts are set forth in the district court opinion, 369 F. Supp. 232, 233-34 (E.D. Pa. 1973), only the facts most pertinent to the issues now before the court are recited here.
Movant, Jose Juan Soto, was indicted for aiding and abetting a sale of heroin in violation of 26 U.S.C. §§ 4704, 4705*fn2 and 18 U.S.C. § 2.*fn3 When his case was called for trial at 2:30 P.M. on June 1, 1972, Soto's appointed attorneys*fn4 asked leave to withdraw as counsel on grounds that movant had "become displeased with [their] representation."*fn5 (N.T. 2). In presenting their motion to the court, counsel identified two bases for Soto's dissatisfaction. First, he had "expressed . . . the feeling that they were not raising every constitutional claim which [they] might perhaps raise on his behalf."*fn6 (N.T. 2-3). Second, Soto had expressed resentment of, and resistance to, counsel's requirement that movant telephone them once a day to determine whether his case had been called for trial.*fn7 After counsel had argued their motion, the court engaged in a colloquy with Soto which revealed that he had made no arrangements to retain another attorney. 369 F. Supp. at 234, N.T. 3-9. The court thereupon denied counsel's motion to withdraw, stating that a substitution of attorneys would be allowed in the event that Soto did obtain other counsel. Soto participated freely in the colloquy, volunteering that it was "impossible" for him to leave his truck and be in court on a moment's notice. 369 F. Supp. at 239 n.13. He offered no grounds for dissatisfaction other than those already advanced by counsel, though the court appeared willing to hear any and all reasons for such dissatisfaction. Having ruled on the motion to withdraw, the court immediately proceeded to allow Soto's waiver of jury trial, "partly . . . because [Soto] indicated that [he] want[ed] to get this over with" and was inconvenienced by having the matter continued longer. Upon Soto's affirmative response to the court's inquiry whether "you want me to start right now; is that correct," the case proceeded to trial. (N.T. 12). Testimony was heard until 7:30 P.M. on June 1, 1972, and resumed at 9:30 A.M. on June 2, 1972, to accommodate the trial court's calendar.*fn8 A verdict of guilty was announced by the court on June 2, 1972, and movant's sentence was affirmed on appeal, sub nom. United States v. Santiago, 474 F.2d 1337 (3d Cir. 1972), cert. denied, Soto v. United States, 411 U.S. 907, 36 L. Ed. 2d 197, 93 S. Ct. 1535 (1973). Soto then filed this motion under § 2255.
The crux of the § 2255 motion is that the trial court, by failing to advise appellant of his right to proceed pro se, deprived him of that right, thereby committing a " per se reversible error." Ancillary to this claim is appellant's contention that the trial court abused its discretion in denying appointed counsel leave to withdraw without either ascertaining from appellant the reasons for his dissatisfaction with counsel or granting, sua sponte, a continuance so that appellant could obtain substitute counsel or prepare his own defense. We reject all these contentions and affirm the district court order of November 15, 1973.
At the outset, we must determine whether jurisdiction lies under 28 U.S.C. § 2255 to adjudicate appellant's claim that he was denied the right to proceed pro se. In the recent case of Davis v. United States, 417 U.S. 333, 94 S. Ct. 2298, 41 L. Ed. 2d 109, 42 U.S.L.W. 4857 (1974), the Supreme Court held that a § 2255 proceeding was not limited to the resolution of constitutional claims, but was the proper vehicle for a prisoner to assert that his confinement was invalid due to a change in the law of the circuit. The Court noted that "the grounds for relief under Section 2255 are equivalent to those encompassed by Section 2254, the general federal habeas corpus statute, under which relief is available on the ground that 'a person is in custody in . . . violation of the Constitution or laws or treaties of the United States.' (Emphasis added)." 42 U.S.L.W. at 4860, citing United States v. Hayman, 342 U.S. at 219 (1952). In sum, the remedy of § 2255 "is intended to be as broad as habeas corpus." 42 U.S.L.W. at 4860. The Government's position, that "the petitioner's claim [was] not 'of constitutional dimension' and thus [was] not cognizable in a Section 2255 collateral proceeding," id. 42 U.S.L.W. at 4859, was emphatically rejected as inconsistent with the clear words of the statute.*fn9 Id. 42 U.S.L.W. at 4860.
Although the courts of appeals disagree over whether the right to represent oneself is constitutionally guaranteed, "there is no dispute that it is a fundamental right." 369 F. Supp. at 235. The right, embodied in 28 U.S.C. § 1654,*fn10 was set forth in the Judiciary Act of 1789 and has been consistently honored by the federal courts.*fn11 Thus, even though we decide that there is no constitutional requirement that an accused be permitted to proceed pro se, see Part II, infra, the statutory right is sufficient to afford jurisdiction under the holding of Davis.
After careful consideration, we reject movant's contention that the Constitution guarantees a defendant the right to proceed pro se. See United States v. Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113, 1121 (1972); Brown v. United States, 105 U.S. App. D.C. 77, 264 F.2d 363, 365 n.2 (1959).*fn12
The Sixth Amendment provides that the accused in all criminal prosecutions "shall enjoy the right . . . to have the assistance of Counsel for his defence." In interpreting this language, the Supreme Court has repeatedly stressed that it is "an obvious truth" that a fair trial cannot be assured unless a defendant has counsel. Gideon v. Wainwright, 372 U.S. 335, 344, 9 L. Ed. 2d 799, 83 S. Ct. 792 (1963). See Argersinger v. Hamlin, 407 U.S. 25, 36-37, 32 L. Ed. 2d 530, 92 S. Ct. 2006 (1972); In Re Gault, 387 U.S. 1, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967); Johnson v. Zerbst, 304 U.S. 458, 462-63, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); Powell v. Alabama, 287 U.S. 45, 68-69, 77 L. Ed. 158, 53 S. Ct. 55 (1932). The central importance of competent legal counsel to the conduct of a fair trial has led the Court to require assistance of counsel at all "critical stages" in the trial process. See, e.g., Coleman v. Alabama, 399 U.S. 1, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970); Mempa v. Rhay, 389 U.S. 128, 19 L. Ed. 2d 336, 88 S. Ct. 254 (1967); Townsend v. Burke, 334 U.S. 736, 92 L. Ed. 1690, 68 S. Ct. 1252 (1948).
By contrast, the right to pro se representation is only tangentially related to procuring a fair trial. The primary basis of the right "derives from the belief that respect for human dignity is best served by respect for individual freedom of choice." 369 F. Supp. at 235-36. See also United States v. Dougherty, 154 U.S. App. D.C. 76, 473 F.2d 1113, 1128 (1972).*fn13 Pro se representation may at times serve the ideal of a fair trial better than representation by an attorney. Also, the individual's freedom of choice and stake in the conduct of his own trial should, on occasion, prevail over society's generalized interest in the trial process. See Comment, supra note 11, at 1479, 1481. Nevertheless, the right is one that is typically not essential to a fair trial, and, indeed, is generally an obstacle thereto.
The deficiencies of pro se representation as a means of protecting "the integrity of the process," Mayberry v. Pennsylvania, 400 U.S. 455, 468, 27 L. Ed. 2d 532, 91 S. Ct. 499 (1971), Burger, C.J., concurring, prompted the American Bar Association to recommend that the trial judge "consider the appointment of standby counsel to assist the defendant when called upon and to call the court's attention to matters favorable to the accused upon which the court should rule on its own motion." A.B.A. Project on Standards for Criminal Justice, Standards Relating to the Judge's Role in Dealing with Trial Disruptions, 11-12 (1971).*fn14 Such appointment of standby counsel was also recommended by Chief Justice Burger as a means of accommodating both the accused's desire to represent himself and the public interest in the fairness of criminal trials. Mayberry, supra at 468. The vital role of counsel in protecting the rights of the accused, which is "a matter of public interest even if the accused has rejected professional assistance," A.B.A. Project, supra at 12, leads us to reject Soto's contention that the Sixth Amendment guarantees pro se representation.*fn15
Since the right, though important, is only statutory, we conclude that it is waived if not asserted.*fn16 See Dougherty, supra, Adams, J., concurring, at 1145; cases cited supra note 15; Williams v. United States, 389 F.2d 35 (9th Cir. 1967); 59 Calif. L. Rev. 1479, 1483 (1971). The trial judge is under no duty to advise any defendant that he may represent himself. Brown v. United States, 105 U.S. App. D.C. 77, 264 F.2d 363, 365-66 (1959). This conclusion obviates any need to reach the question of prejudice. We therefore hold that the trial court committed no error in failing to suggest pro se representation as an alternative to the appointed counsel with whom Soto expressed displeasure.
Movant also contends that it was error for the trial court to deny appointed counsel leave to withdraw without first asking Soto the reasons for his dissatisfaction with their representation. As the district court noted, Soto did not raise the issue of his dissatisfaction with counsel. Although he engaged in a colloquy with the court in which he amplified counsel's statement that he resented checking with them daily to determine the time for trial, Soto never offered any reasons for dissatisfaction in addition to those expressed by counsel. The record clearly indicates both that Soto could have raised such additional objections and that he was not reluctant to express his views to the trial court. See N.T. 3-9. On this record, we affirm the district court's holding that the obligation of the trial judge "to explore the sources of a defendant's dissatisfaction with counsel" was discharged. 369 F. Supp. at 239. See also United States v. Young, 482 F.2d 993 (5th Cir. 1973); United States v. Morrissey, 461 F.2d 666 (2d Cir. 1972).
Finally, we consider Soto's claim that his expression of dissatisfaction with appointed counsel obligated the trial court to declare, sua sponte, a continuance to enable Soto to obtain other counsel or to prepare his own defense.
Counsel described a slow deterioration in their relation with Soto that culminated in their motion for leave to withdraw. A week before the case was called for trial, Soto had complained about their conduct of his case to Puerto Rican fraternal and social agencies. See note 7, supra. Yet, by the day of trial, Soto had made "no arrangements" to procure other counsel, though he had ample time to do so. McGill v. United States, 121 U.S. App. D.C. 179, 348 F.2d 791 (1965); cf. United States v. McMann, 386 F.2d 611 (2d Cir. 1967). Moreover, there are strong indications in the record that Soto would have opposed a continuance. He had, for example, expressed great resentment over the inconvenience caused by holding himself available to go to trial on short notice. N.T. 5. He waived a jury and requested that his trial proceed immediately after the court's ruling on counsel's motion to withdraw, apparently because he was eager to conclude the matter. N.T. 12. Thus, Soto not only failed to request a continuance, he also encouraged expediting the trial. These facts do not suggest that the trial court abused its considerable discretion in refusing to discharge counsel and proceeding directly to trial. United States v. Price, 474 F.2d 1223, 1226 (9th Cir. 1973); United States ex rel. Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965); Juelich v. United States, 342 F.2d 29, 32, and cases cited n.5 (5th Cir. 1965). Soto suggests that the district court improperly required that "good cause" be shown before a defendant is entitled to substitution of counsel. Although such a requirement might not be necessary in all circumstances, it certainly appears proper where, as here, no request for either substitute counsel or a continuance was made and no objection to counsel was expressed to the court prior to the day the trial started.*fn17
For the foregoing reasons, the judgment of the district court, denying Soto's motion under 28 U.S.C. § 2255, will be affirmed.