James P. Duncan v. Gregory Schwartz, Warden

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued May 8, 2009
Decided July 29, 2009
Before
RICHARD D. CUDAHY, Circuit Judge
DANIEL A. MANION, Circuit Judge
JOHN DANIEL TINDER, Circuit Judge
No. 07-3412
JAMES P. DUNCAN,
Plaintiff-Appellant,
v.
GREGORY SCHWARTZ, WARDEN,
Defendant-Appellee.
Appeal from the United States District
Court for the Northern District of
Illinois, Eastern Division.
No. 02 C 08990
Charles R. Norgle, Judge.
O R D E R
James Duncan was convicted of armed robbery after a jury trial in Illinois state
court. After exhausting his state appellate remedies, Duncan filed a habeas petition in the
district court, claiming that he was denied his right to represent himself during the trial.
The district court denied his petition. Duncan appeals, and we affirm.
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with
Fed. R. App. P. 32.1

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No. 07-3412 Page 2
I.
An inch of snow blanketed the ground in Calumet City, Illinois, on February 26,
1994, as Harold Verrill, a 69-year-old bartender, arrived for work at the Old Homestead
Tavern. Around 7:00 a.m., while filling an ice bin behind the bar, Verrill heard a voice
behind him say: “Lay flat on the floor, face down. Don’t move or I’ll shoot you.” Verrill
turned around and saw James Duncan standing on top of the bar. Duncan repeated his
demand and brandished a blue-barreled gun. After Verrill lay on the ground, Duncan
broke into a drawer containing bundles of one- and five-dollar bills and fled with the
money. Verrill then telephoned the police.
Prior to the robbery, at approximately 6:40 a.m., three officers of the Calumet City
Police Department observed suspicious boot prints in front of a tavern named Dick’s Are
You Crazy (“Dick’s”). When Verrill called the police, two of these officers—Kevin Glaser
and Steve Lundy—hurried to the Old Homestead, which was about a block away, while
the other officer—Gary Devaney—remained in front of Dick’s. At the Old Homestead,
Officer Kevin Glaser interviewed Verrill, who described the robbery and noted that the
culprit was a white male, about 40 years of age, wearing a black jacket, jeans, and black
shoes. Glaser also observed that boot prints found inside the bar matched those in front of
Dick’s. After radioing in a report, Glaser found identical boot prints outside the Old
Homestead. The prints led to tire tracks. Glaser then radioed this new discovery.
Shortly after receiving the two radio reports, Devaney observed Duncan park a car
near Dick’s and enter a building. Realizing that Duncan matched the description of the
robber, Devaney hurried to Duncan’s car and examined the boot prints Duncan had left
behind. They matched those prints in front of Dick’s, which matched those at the Old
Homestead. After Devaney called for back-up, Glaser, Devaney, and Lundy entered the
building. They knocked on the door of an apartment and the resident allowed them to
enter. Duncan emerged from a bedroom, shirtless and wearing blue jeans that were wet at
the cuffs. The officers placed Duncan under arrest after Devaney identified him. When
Glaser picked up a black leather jacket lying next to Duncan, a bundle of one- and five-
dollar bills fell from the jacket. Next to the jacket was a pair of boots whose prints matched
those from the Old Homestead. The officers also found a .44 caliber pistol in Duncan’s car.
Duncan was charged in Illinois state court with armed robbery and two trial counsel
were appointed. Prior to trial, Duncan moved pro se to assist in his representation as co-
counsel. However, the day before trial Duncan informed the court that he was
withdrawing the motion. The trial began the next day. After Verrill and Glaser testified

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No. 07-3412 Page 3
and were cross-examined by defense counsel, Duncan had the following exchange with the
trial court:
Duncan: Your Honor, I would like the record to . . . reflect that there is a lot of
discrepancies involved that has not been brought up during the course of these
hearings. Now, he has no intention[] of recalling these particular two witnesses.
There is testimony that they, both of these officers made previously that are totally
contradictory to what they’re saying right now and they said it under oath. He isn’t
bringing this up.
I believe I am receiving ineffective assistance of counsel. I don’t want to slow this
trial down, I want to get it out of the way. I would like to represent myself. If you
want to make these guys co-counsels -
Court: What do you mean, you want to represent yourself?
Duncan: I would like to cross-examine the witnesses and I would like to recall them.
Court: Your motion is denied. . . . Your motion is denied to represent yourself at this
point.
Trial resumed and the state prosecutor presented testimony from Devaney and the
officer who searched Duncan’s car. Following their testimony, Duncan renewed his
request:
Duncan: Your Honor, I would like to reiterate my request to proceed pro se. . . . My
attorney is digging my hole because he is not bringing out certain facts that are
involved in this case. . . . I believe I have a right to defend myself to the best of my
ability or have representation that can represent me effectively and advise me of
what they’re doing. . . . If I do represent myself, I would like to also point out that I
have a bit of knowledge about the law . . . . So, based upon these facts I ask to
represent myself.
Court: You can discuss your trial strategy with your lawyer and your motion is
denied.
The next morning Duncan again asserted his dissatisfaction:
Duncan: I will reiterate my request to proceed pro se.
. . .

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No. 07-3412 Page 4
Court: So you want to continue the trial and represent yourself through the duration
of the trial?
Duncan: Yes, Your Honor.
Court: You want to continue in this trial and represent yourself, is that what you
want to do?
Duncan: With some exceptions. I would like certain witnesses recalled.
After indicating that he intended to recall three of the witnesses called by the state
prosecutor, Duncan stated his belief that he could show that it was impossible for Verrill to
accurately identify him and that he could show that Verrill had been coached by the
prosecutors. Duncan continued:
Duncan: These questions have to be addressed. These attorneys here haven’t
addressed these things. They finally explained their trial strategy to me last night
and today and I don’t agree with it. I think it’s ludicrous. . . .
The point here is I believe I can represent myself: perhaps [not] as effective as these
attorneys were if I was paying them $50,000 each, but I can represent myself. My
maximum amount of ability to represent myself, it would fall way above what
they’re doing right now . . . .
I’m not saying I would like to have these attorneys here as co-counsels. If the Court
wants to have them here as co-counsels, they already explained that they wouldn’t
want to do this.
Explaining that he suffered from back problems, Duncan stated, “I would like to have
somebody here to illustrate some points that would take physical movement before the
victim.” The trial court denied his request, stating:
Court: You have a constitutional right to represent yourself, and defendants do that
in this very courtroom, represent themselves, after they were strongly admonished .
. . . It’s up to you. Many times things to the layman look like one thing and within
the scope of the law they are completely something else. But those are things that I
would address if it was timely.
. . .

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No. 07-3412 Page 5
I don’t know what [Duncan’s attorneys’] trial strategy is. I just know that I am not
going to allow you in midstream to now switch and represent yourself.
. . .
Your motion to represent yourself is denied.
The prosecutor rested and Duncan testified on his own behalf. The jury convicted Duncan
of armed robbery and he was sentenced to 40 years’ imprisonment.
The Illinois Appellate Court affirmed Duncan’s conviction in 1998, and the Illinois
Supreme Court denied his petition for discretionary review. Duncan then petitioned the
state courts for collateral relief, raising the issue of the trial court’s denial of his request for
self-representation. Specifically, Duncan contended that his original appellate attorney’s
failure to raise the self-representation issue on direct appeal constituted ineffective
assistance of counsel. The state trial court denied this petition. The Illinois Appellate Court
affirmed in 2001, stating:
[T]he record shows [Duncan] did not request complete self-representation until his
motion for a new trial. . . . [The trial court] in the present case denied defendant’s
request that his attorneys act as co-counsel, rather than defendant acting as co-
counsel. Nevertheless, . . . denial of defendant’s request for hybrid representation
was not a violation of his constitutional right to self-representation . . . .
The Illinois Supreme Court declined to exercise discretionary review.
Duncan then filed a petition for habeas relief in the North District of Illinois.
Duncan raised several claims for relief, including an assertion that the trial court denied
him his right to self-representation as guaranteed by Faretta v. California, 422 U.S. 806
(1975). The district court denied Duncan’s petition. On the self-representation issue, the
district court held that the conclusion of the Illinois Appellate Court that Duncan had
requested “hybrid representation”—to represent himself as co-counsel with his
attorney—was not an unreasonable determination of the facts. Because Duncan had
requested hybrid representation, the district court held that the Illinois Appellate Court did
not unreasonably apply Supreme Court precedent in concluding that it was permissible to
deny Duncan’s request. Duncan now appeals the denial of his petition for habeas relief,
solely raising the self-representation issue.
II.

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No. 07-3412 Page 6
Duncan asserts a denial of his right to self-representation, as guaranteed by the Sixth
Amendment. Because the Illinois Appellate Court reached the merits of this issue, we
review this appeal under 28 U.S.C. § 2254(d), which states that habeas relief
shall not be granted with respect to any claim that was adjudicated on the merits in
State court proceedings unless the adjudication of the claim--
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
In reviewing a claim for habeas relief under this subsection, “‘[a] state-court decision is
contrary to [the Supreme] Court’s clearly established precedents if it applies a rule that
contradicts the governing law set forth in [the Supreme Court’s] cases, or if it confronts a
set of facts that is materially indistinguishable from a decision of [the Supreme] Court but
reaches a different result.’” Johnson v. Pollard, 559 F.3d 746, 752 (7th Cir. 2009) (quoting
Brown v. Payton, 544 U.S. 133, 141 (2005)).
Duncan bases his appeal on Faretta, which held that the Sixth Amendment “grants
to the accused personally the right to make his defense.” 422 U.S. at 819. A defendant’s
assertion of his right to self-representation must be made “clearly and unequivocally.” Id.
at 835. This court has noted the “basic principle” that “the district court has broad
discretion in granting mid-trial requests to proceed pro se.” United States v. Kosmel, 272
F.3d 501, 506 (7th Cir. 2001).
Here, the Illinois Appellate Court held that Duncan had requested “hybrid
representation.” That is, the state court concluded that Duncan desired to retain his
appointed counsel and also to act as co-counsel for himself at the same time. Assuming for
the moment that Duncan in fact requested hybrid representation, the state court’s
conclusion that Duncan’s Sixth Amendment rights were not violated was not contrary to or
an unreasonable application of Faretta, which merely guaranteed a defendant’s right to
defend himself personally. The Supreme Court has not held that the Sixth Amendment
guarantees a defendant the right to proceed as co-counsel to his appointed counsel.
Indeed, this court has stated that such hybrid representation is “clearly disfavor[ed].”
Kosmel, 272 F.3d at 506.

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No. 07-3412 Page 7
That leaves Duncan to attack the state appellate court’s factual finding that he
requested hybrid representation. On appeal, Duncan contends that he did not seek hybrid
representation but rather that he was asserting the right to represent himself alone.
With regard to a state appellate court’s determination of facts, “[w]e presume state
factual findings to be correct, unless the petitioner rebuts the presumption by clear and
convincing evidence.” Ben-Yisrayl v. Buss, 540 F.3d 542, 546 (7th Cir. 2008) (citing 28 U.S.C.
§ 2254(e)(1) and Miller-El v. Dretke, 545 U.S. 231, 240 (2005)). In this case, Duncan’s three
requests in the trial court were divergent and unclear. Prior to trial, Duncan had moved to
represent himself with co-counsel. In his first request for self-representation at trial,
Duncan began by saying, “I would like to represent myself,” but then immediately added
the caveat, “If you want to make these guys co-counsels.” His further statement that “I
would like to cross-examine the witnesses and I would like to recall them” also suggested
that Duncan wanted a limited appointment as co-counsel for those purposes only. Thus,
his initial request was equivocal.
His second request was more clear. Duncan began by saying, “I would like to
reiterate my request to proceed pro se.” He further stated, “I believe I have a right to
defend myself to the best of my ability,” and concluded, “So, based upon these facts I ask to
represent myself.” These comments indicate a more clear assertion of his right to self-
representation. However, this second request did not occur in a vacuum. In his first
request during trial, Duncan had sought to represent himself as co-counsel, and the trial
court could consider this second request in light of the previous one. Because we presume
the findings of fact of the state courts are correct and we will only overturn a state court’s
factual finding if clear and convincing evidence demonstrates that the finding was
unreasonable, Ben-Yisrael, 540 F.3d at 546, we conclude that the Illinois Appellate Court’s
conclusion that Duncan had requested hybrid representation was not unreasonable.
Duncan’s third request was also equivocal. Although he began by stating, “I will
reiterate my request to proceed pro se,” Duncan immediately qualified that statement by
noting that he wished to represent himself “with certain exceptions”; namely, he wanted
“certain witnesses recalled.” Later in the colloquy, Duncan seemed to swing back to total
self-representation, stating, “I can represent myself.” He also stated, “I’m not saying I
would like to have these attorneys here as co-counsels,” but then stated that the reason for
his choice was that the attorneys did not wish to function in that capacity. On the whole,
Duncan has not produced clear and convincing evidence that would rebut the presumption
in favor of the state appellate court’s factual findings. Hence, the factual findings of the
state appellate court did not constitute an unreasonable determination of the facts based on
the record.

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No. 07-3412 Page 8
Moreover, even if Duncan did not request hybrid representation, an alternative
rationale supports the Illinois Appellate Court’s conclusion. We have previously indicated
that a habeas petition may be rejected under a different legal standard than that used by
the state court, if “the proper standard results in the same conclusion.” Malinowski v. Smith,
509 F.3d 328, 339 (7th Cir. 2007). We have held, applying Faretta, that when a criminal
defendant requests self-representation after the trial has begun, a trial court “has broad
discretion in granting mid-trial requests to proceed pro se.” Kosmel, 272 F.3d at 506. The
trial court must “balance the interests of the defendant against the potential disruption of
the proceedings already in progress.” Id. Here, all of Duncan’s requests came after his trial
had begun and witnesses had already testified. The state trial court noted that Duncan’s
mid-trial requests were not timely. After considering Duncan’s interest in self-
representation, the trial court rejected his requests, stating that Duncan would not be
allowed to suddenly alter his representation “in midstream.” We conclude that the state
trial court did not abuse its discretion in denying Duncan’s mid-trial requests for self-
representation, and hence the Illinois Appellate Court did not unreasonably apply Supreme
Court precedent when it affirmed the denial of Duncan’s petition for collateral relief.
Duncan also faults the state trial court for failing to undertake the proper Faretta
inquiry. He argues that, assuming his statements were ambiguous, the state trial court
“should have conducted a Faretta inquiry to determine what [he] actually requested.” For
support, he cites United States v. Berkowitz, 927 F.2d 1376 (7th Cir. 1991). However, Duncan
misstates the nature of the Faretta inquiry. Faretta requires a court to determine whether a
defendant’s decision to represent himself has been made with knowledge of the pitfalls of
his choice. 422 U.S. at 835. Faretta does not require a more searching inquiry whenever a
defendant makes ambiguous, equivocal statements that could potentially be construed as
indicating a desire for self-representation. As Berkowitz makes clear, the Faretta inquiry
merely requires a court to “assess whether a defendant has knowingly and voluntarily
waived counsel” when that waiver has been made clearly and unequivocally. 927 F.2d at
1383; see also Dunn v. Johnson, 162 F.3d 302, 307 (5th Cir. 1998) (stating that Faretta requires
that “[t]he defendant should be made aware of the dangers and disadvantages of
self-representation”). Accordingly, this argument fails as well.
III.
The Illinois Appellate Court did not unreasonably determine that Duncan sought
hybrid representation in the state trial court. Because Faretta only guarantees a defendant’s
right to represent himself and does not guarantee hybrid representation, the Illinois
Appellate Court’s rejection of Duncan’s Faretta argument was not an unreasonable
application of federal law as determined by the Supreme Court. Accordingly, the decision
of the district court denying Duncan’s habeas petition is AFFIRMED.

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