Finch v. Kelly

          FINDINGS AND RECOMMENDATION

         INSTRUCTIONS

         The following recommended disposition has been sent to United States District Judge Billy Roy Wilson. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.

         DISPOSITION

         Elliott Finch, Jr. (“Finch”) seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Finch is currently in the custody of the Arkansas Department of Correction (ADC) following a 2016 jury trial in the Circuit Court of Pulaski County on the charges of kidnapping, aggravated residential burglary, aggravated assault on family or household member, and first-degree terroristic threatening. The jury did not return a verdict on kidnapping. Finch was convicted on all other charges. With enhancements for use of a firearm and for being an habitual offender, Finch was sentenced to life imprisonment, plus an additional fifteen year term. On direct appeal, Finch alleged the trial judge erred by denying his requests to represent himself and the trial judge abused his discretion by denying his motion for mistrial based on juror misconduct. Finch v. State, 2018 Ark. 111.

         In this federal habeas corpus petition, filed on May 17, 2018, Finch raises the same two claims raised on direct appeal. The Court finds merit in Finch's first claim and recommends that habeas corpus relief be granted for the reasons set forth below.

         Finch's First Claim: Error in Denying Self-Representation Requests

         Finch's requests to represent himself were denied by the trial court. On appeal, the Supreme Court of Arkansas affirmed the order denying Finch's requests to represent himself, albeit for different reasons than those given by the trial court. When a state court has ruled on the merits of a petitioner's claims, a writ of habeas corpus may not be granted unless the state court's decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court” or the state court's decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court.” 28 U.S.C. § 2254(d)(1), (2). The United States Supreme Court offers guidance in interpreting the statute:

A state court decision will be “contrary to” our clearly established precedent if the state court either “applies a rule that contradicts the governing law set forth in our cases, ” or “confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.” A state court decision will be an “unreasonable application of” our clearly established precedent if it “correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case.”

. . . Distinguishing between an unreasonable and an incorrect application of federal law, we clarified that even if the federal habeas court concludes that the state court decision applied clearly established federal law incorrectly, relief is appropriate only if that application is also objectively unreasonable.

Penry v. Johnson, 532 U.S. 782, 792-93 (citations omitted).

         When, as in this instance, the state appellate court issues a reasoned opinion, it is the decision of the appellate, not the trial, court which must be examined in light of 28 U.S.C. § 2254(d)(1), (2). Wilson v. Sellers, ___ U.S. ___, 138 S.Ct. 1188, 1191-1192 (2018). However, a thorough understanding of the trial court proceedings is necessary, both for context and because the Supreme Court of Arkansas' decision was based upon its view of the trial court events. The parties agree that the clearly established Federal law which applies to Finch's first claim is Faretta v. California, 422 U.S. 806 (1975). Having identified the applicable law, the question is whether the state appellate court's decision was contrary to or an unreasonable application of Faretta, or was based on an unreasonable determination of the facts presented in state court. Finch and respondent Wendy Kelley (“Kelley”) have supplied the Court with supplemental briefs pursuant to the Court's request. See docket entry numbers (“D.E.”) 10, 17 & 18.

         I. Trial Court Proceedings and Application of Clearly Established Law

         A. Clearly Established Federal Law

         The Faretta Court held that the Sixth Amendment provides a defendant with the right to represent himself, assuming he knowingly and intelligently waives his right to an attorney, and the state may not force a lawyer upon a defendant who desires to conduct his own defense.

         B. Relevant Trial Court Pleadings Regarding Self-Representation

         Finch was charged by felony information on October 1, 2013. D.E. 7-2, page 10. Based upon Finch's indigency, the public defender, William R. Simpson, Jr. (“Simpson”), was appointed as counsel on October 7. D.E. 7-2, page 33. Shortly thereafter, on October 11, Simpson filed a motion for discovery. D.E. 7-2, page 37. In April 2014, the trial court ordered Finch to undergo an examination to determine his fitness to proceed and his criminal responsibility. D.E. 7-2, pages 38-48. In September 2014, Finch filed a pro se motion to dismiss the information. D.E. 7-2, pages 51-53. This would be the first of many pro se requests. On October 7, 2014, the trial judge denied Finch's pro se motion, finding:

The defendant appeared for plea and arraignment October 8, 2013. He was determined to be indigent and counsel was appointed to represent him. A defendant is not entitled to accept or retain counsel to represent him and also proceed pro se. Brewer v. State, 371 Ark. 532, 268 S.W.3d 332 (2007). Legal issues should be brought forth through counsel.

D.E. 7-2, page 55.

         On November 6, 2014, Finch moved for the trial judge to relieve or substitute counsel, citing alleged shortcomings and disagreements with Simpson. D.E. 7-2, pages 56-58. Finch filed a similar motion eleven days later. D.E. 7-2, pages 61-63. On January 15, 2015, the trial court denied both motions to relieve or substitute counsel, reciting verbatim the language cited above from D.E. 7-2, page 55. D.E. 7-2, page 66.

         In February 2015, the report of the mental evaluation was submitted to the trial court. This report, from Forensic Psychologist Jennifer Boye (“Boye”), reflected her opinion that Finch “possessed a basic understanding of the criminal proceedings against him and possessed the capacity to rationally assist and communicate with his attorney regarding the case.” D.E. 7-2, page 68. She opined Finch “appeared to be of at least average intelligence” and that he demonstrated “a greater level of understanding of his legal proceedings than the typical defendant.” Id. at 75, 77. Boye also noted Finch had undergone a previous forensic evaluation in 2006. Dr. Del Thomas administered the 2006 evaluation, finding Finch had the capacity to understand the proceedings against him, to assist effectively in his own defense, to appreciate the criminality of his conduct, and to conform his conduct. Id. at 71. Finch did not participate in an assessment of his mental state at the time of the offense, telling Boye he did not intend to use a mental health disease defense. As a result of his non-participation, Boye did not opine on Finch's state of mind at the time of the alleged offenses. Boye found Finch “capable of making a knowing and rational decision to decline the evaluation.” Id. at 68.

         Finch continued to file a variety of pro se motions, ^[1] all of which were denied. In each of the orders denying these motions, the trial court cited the language from D.E. 7-2, page 55. D.E. 7-2, pages 80, 129, & 130.

         In 2016, Finch continued to file pro se motions, including a February 25 motion to waive counsel and proceed pro se. D.E. 7-2, pages 136-138. In this motion, Finch cited his Sixth Amendment right to represent himself assuming he voluntarily and intelligently elected to do so. Finch asserted it would be error to require him, against his will, to accept the public defender and to deny his request to conduct his own defense. Faretta, Finch argued, guaranteed his right to proceed without counsel and without the state forcing him to accept a lawyer when he desired to conduct his own defense. He moved “to proceed pro se and request[ed] this court to grant a hearing on the motion as soon as possible without delay.” Id. at 137.

         Many more pro se motions followed. For example, Finch requested a transcript on more than one occasion, moved to compel a ruling, requested habeas corpus relief, and moved to dismiss the case. In October of 2016 the trial judge entered a series of orders denying these motions. D.E. 7-2, pages 182-187. Each of these six orders included the previously cited language, stressing Finch was not entitled to accept or retain counsel and also proceed pro se. One of these orders was a denial of Finch's February 25, 2016 written motion to waive counsel and proceed pro se. D.E. 7-2, page 186. Thus, the trial court denied Finch's motion to waive counsel because Finch's counsel did not make the motion. The trial court did not consider the merits of the motion nor did it conduct a hearing on Finch's motion to waive counsel and proceed pro se.

         C. Relevant Trial Court Hearings Regarding Self-Representation:

         At an omnibus hearing conducted on September 22, 2015, Finch asked for permission from the trial judge to speak. After permission was granted, Finch stated he did not want Simpson on the case. Later in the hearing Finch asked the court to fire Simpson and appoint a new attorney. The trial judge denied the request. D.E. 7-2, pages 327-328. Before the hearing was adjourned, Finch informed Simpson “you need to relieve yourself because you're not representing me.” D.E. 7-3, page 4.

         Another omnibus hearing was held on October 19, 2015 at which the following colloquy occurred:

Finch: Your Honor, I don't want him as my attorney. It's been a conflict. Me and him had no communication at all. And he ain't done nothing for me, Your Honor.

Judge: Mr. Finch - -

Finch: He lie - lie - been lying to me, Your Honor.

Judge: Mr. Finch, do you have attorney - do you have witnesses that you need called for this trial?

Finch: I don't want him as my attorney.

Judge: That's not my question.

Finch: That's all I'm going to say, Your Honor.

Judge: Okay. So you have no witnesses. The trial is set. You have - what's the --

Finch: I want to represent myself then.

Judge: Mr. Finch, you -

Finch: I don't want him - I don't want him as counsel.

Simpson: I --

Finch: I don't want him as counsel.

Judge: Okay. You can't - only one person can talk at a time, Mr. Finch.

Finch: Well, I --

Judge: And at this time --

Finch: Can I speak then?

Judge: No, Mr. Simpson was talking. You'll have to wait till he gets through.

Simpson: Yeah, he's --

Judge: Mr. Simpson.

Simpson: He's indicated to me before he does not have any witnesses. And I want to make that clear.

Judge: Okay.

Finch: I didn't tell him that. That's a lie.

Judge: Okay. Mr. Finch, do you have witnesses in this case?

Finch: Yeah, I just told him back there.

Judge: Okay. Who are the wit --

Finch: I talked to him --

Judge: Who are - who are the witnesses that you --

Finch: I don't want him as my counsel.

Judge: That's not my question, Mr. Finch.

Finch: I want to represent myself.

Judge: Mr. Finch, who are the witnesses --

Finch: I want to represent myself, Your Honor. And that's all I'm telling you.

Judge: Okay. All right.

Finch: I don't want him as my counsel.

Judge: Mr. Simpson --

Finch: Take it how you want to, y'all. Because he - he --

Judge: Mr. Finch --

Finch: - he's sitting up here and lied to me, Your Honor.

Judge: Hey, I'm trying to talk to you and you sitting there and just keep over talking me. Listen. Listen. Even if Mr. - if I remove Mr. Simpson, you got to tell the State who your witnesses are. So do you have witnesses for this case? Do you have witnesses for this --

Finch: No, I don't have no witnesses.

Judge: Okay. You don't have any witnesses, okay.

Finch: Don't want no witnesses. I don't want no attorney.

Judge: Now - okay. Do you - what grade did you finish in high school? What grade did you finish in high school?

Finch: I got a GED, Your Honor.

Judge: Okay. GED, okay. What year did you get that?

Finch: Like ‘99.

Judge: Okay. And have you ever been in the system before?

Finch: Yeah, I been through the system.

Judge: You understand the charges against you?

Finch: Yeah, I understand the charges.

Judge: What are the charges against you?

Finch: He ain't even told me the -

Judge: And let -

Finch: - punishment, the range the - the time that it carry.

Judge: What are the charges against you? See, I'm - I'm going to - I'm going to get a report on Act 3 if you don't - if you don't follow - I'm trying to talk -

Finch: Get your report, like I said.

Judge: I'm trying to talk to you.

Finch: This man - this man been lying to me.

Judge: Mr. Finch, you said you -

Finch: I'm not going to fool with this no more, Your Honor.

Judge: I have to go through a process if you want me to repre - if you want to represent yourself, but you won't let me finish.

Finch: That's Act 3. We'll request another Act 3 then.

Bailiff: All right. Let's go.

Judge: All right. He's already had one?

Simpson: Yes.

Judge: We're going to request another Act 3 then.

Judge: All right. That's - I understand.

Finch: I don't want him as counsel.

Judge: I'm not going to let him -

Finch: This man -

Judge: - represent himself.

Finch: This man voluntary lie to me.

Judge: So we'll go ahead and set it for trial. It's set for trial. So it's general now?

Simpson: Yes, general now.

Judge: All right.

Simpson: No. motions. Just - except for the motion on the - on Count 3 -

Judge: All right.

Simpson: - being severed.

Judge: Okay. All right, then.

. . .

Judge: . . . And just for the record, Mr. Finch, your motion to represent yourself is denied based on the history that we've had with report from Act 3 and all that.

D.E. 7-3, pages 9-15.

         Another hearing was conducted on March 10, 2016, for the purpose of reviewing the Act 3 report. Finch had again been uncooperative with regard to the second prong of the evaluation, dealing with his mental state at the time the crimes were alleged to have been committed. The results of the second examination mirrored those of the first. Finch again informed the examining physician that he did not want to pursue a defense of not guilty by mental disease or defect. There was no debate concerning the first prong of the evaluation, regarding Finch's ability to understand the proceedings and assist in the defense of the case.

         Simpson brought to the trial judge's attention that Finch had filed a motion to proceed pro se, and the following conversation ensued:

Simpson: . . . Also, one other matter, Judge. The Defendant filed a motion to proceed pro se.

Finch: New counsel.

Judge: All right. What - how far did you go in school, Mr. Finch?

Finch: I got a GED.

Judge: All right. When - how long ago did you get the GED?

Finch: Since 1999.

Judge: Okay. What year did you drop out of high school?

Finch: Probably ‘94.

Judge: I mean - okay. And what grade was that?

Finch: Twelfth grade.

Judge: Okay. And how long - I mean, how many times have you been in court? Not this time, but other - you have priors against you?

Finch: Yeah, I've been in court before.

Judge: So are you aware how the system works?

Finch: Yes, sir.

Judge: And you understand what a ...