United States District Court, E.D. Arkansas, Pine Bluff Division
ELLIOTT FINCH, JR. PETITIONER
WENDY KELLEY, Director of the Arkansas Department of Correction RESPONDENT
FINDINGS AND RECOMMENDATION
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.
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.
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
First Claim: Error in Denying Self-Representation
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
Penry v. Johnson, 532 U.S. 782, 792-93 (citations
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.
Trial Court Proceedings and Application of Clearly
Clearly Established Federal Law
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.
Relevant Trial Court Pleadings Regarding
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
D.E. 7-2, page 55.
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,
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.
continued to file a variety of pro se motions,
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.
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
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.
Relevant Trial Court Hearings Regarding
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.
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
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.
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
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
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
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
Finch: That's Act 3. We'll request another Act 3
Bailiff: All right. Let's go.
Judge: All right. He's already had one?
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.
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.
brought to the trial judge's attention that Finch had
filed a motion to proceed pro se, and the following
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: 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
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 ...