Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-27-2005

Pazden v. Maurer
Precedential or Non-Precedential: Precedential

Docket No. 03-4236




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                                        PRECEDENTIAL


       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT

                       No. 03-4236

                  MICHAEL PAZDEN,

                               Appellant

                               v.

  SUSAN MAURER, Acting Commissioner, New Jersey
           Department of Corrections;
T. MOORE, MR., Superintendent, East Jersey State Prison;
W. MCCARGO, MR., Acting Chairman, New Jersey State
                  Parole Board;
 PETER HARVEY, Attorney General of the State of New
                       Jersey




     On Appeal from the United States District Court
  for District of New Jersey, Pursuant to a Certificate of
                       Appealability
                   Granted By This Court
               (Civil Action No. 00-cv-4435)
    District Judge: Hon. John W. Bissell, Chief Judge
                  Argued: March 8, 2005

   Before: NYGAARD 1 , McKEE and RENDELL, Circuit
                        Judges

            (Opinion filed: September 27, 2005)




Kevin McNulty, Esq. (Argued)
Lawrence S. Lustberg
Gibbons, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, NJ 07102
Attorneys for Appellant

James F. Avigliano
Steven E. Braun, Esq. (Argued)
Passaic County Prosecutor’s Office
Administration Building
401 Grand Street
Paterson, NJ 07505
Attorneys for Appellee


                        OPINION



   1
    Judge Richard L. Nygaard, Senior Circuit Judge effective
July 9, 2005.

                             2
McKee, Circuit Judge

        Michael Pazden appeals from the District Court’s order
denying his petition for writ of habeas corpus under 28 U.S.C.
§ 2254(a). Pazden was convicted in state court on a 119 count
indictment involving “white-collar fraud” stemming from the
sale of condominiums in Clifton, New Jersey. We are asked to
determine if the trial court violated Pazden’s Sixth Amendment
right to counsel when the court denied defense counsel’s request
for a continuance and Pazden proceeded to trial pro se. For the
reasons that follow, we hold that the trial court did violate
Pazden’s Sixth Amendment rights and that the state courts’
determination to the contrary was both contrary to, and an
unreasonable application of, clearly established law as
proclaimed by the Supreme Court. Accordingly, we will reverse
the District Court’s denial of federal habeas relief and remand
with instructions to grant a conditional writ.

                       I. Background.2

       From 1987 to 1990, Pazden worked for Riverview
Village Inc., a corporation wholly owned by Robert Pazden,
appellant’s brother. Riverview was incorporated to develop,
market, and sell a condominium complex in Clifton, New


   2
     Since the District Court accurately and fully set forth the
factual background of this habeas action, we take the liberty of
excerpting much of this portion of our opinion from the opinion
of the District Court. See Pazden v. Maurer, No. 00-4435, slip
op. at 3-11 (D.N.J. Sept. 25, 2003).

                               3
Jersey. Between March 1989 and April 1990, Riverview
contracted with purchasers for the sale of several individual
units. After entering into those contracts, however, Riverview
developed financial difficulties and ultimately failed. However,
Riverview refused to return the deposits of numerous
purchasers. It claimed that those purchasers had defaulted on
their obligations under the agreements, and they were therefore
not entitled to a refund. The corporation did, however, refund
deposits to approximately 200 other purchasers.

        On February 26, 1991, one of the prospective purchasers
filed a private criminal complaint against Pazden charging him
with theft by deception. Pazden was arraigned on that complaint
on March 27, 1991.

       Almost three years later, on December 7, 1993, Pazden
was named in a 131-count indictment that arose from the same
facts as the 1991 complaint. However, it added the additional
42 purchasers whose deposits had not been refunded.3 Pazden
asked for appointed counsel, and the court assigned John
Schadell, an Assistant Deputy Public Defender, to represent
him.

      On October 3, 1995, Wanda Bartos replaced John
Schadell as Pazden’s court-appointed attorney in the criminal
prosecution underlying the instant habeas action. Prior to trial


   3
    In a second, related indictment, Pazden was charged with
two counts of fourth degree uttering a forged instrument. He
pleaded not guilty to all counts of both indictments.

                               4
in the Superior Court of New Jersey, Law Division, Passiac
County, however, Ms. Bartos informed the court that, given her
recent involvement in the case and the state’s alleged refusal to
provide discovery, she was unprepared to proceed to trial. Trial
was scheduled to begin February 20, 1996. Specifically, Ms.
Bartos explained:

              One of the claims [Pazden] makes is
              that we had failed to interview and
              contact the various witnesses that
              will be needed for this trial and that
              is true and was the basis of my
              application for a three month
              adjournment initially when I said I
              was not ready to and able to proceed
              with the case.

              When I first got the case from Mr.
              Schadegg, I asked for the witness
              list. There was no witness list in
              that file . . . .

              [The list of potential witnesses,
              when obtained from Pazden,
              contained] 560 names and it would
              have been virtually impossible for
              me to contact, to interview, to
              evaluate in assessing those witnesses
              appearing in that very, very short
              period of time.


                               

.

         In addition, in a letter she sent to the court, Ms. Bartos
also contended that she had been hampered by the prosecution’s
refusal to furnish timely discovery as well as the piecemeal
fashion that discovery was being provided.4               She was
particularly concerned about a discovery packet that the
prosecution delivered on January 26, 1996, approximately three
weeks before trial was to begin. That packet contained a
document that pertained to the processing and approval of the
corporation’s Public Offering Statement by the Department of
Community Affairs. It alerted Ms. Bartos to the existence of
still more documents that had not been yet been turned over by
the prosecution. Ms. Bartos explained to the court that,
“[h]aving been alerted by this discovery provided by the
Prosecutor’s Office of the importance of these documents,
defense counsel would not be acting in the best interest of the
client nor providing able and effective counsel in proceeding to
trial at this time.” App. 252.

       Based on all of these factors, Ms. Bartos requested a
three-month postponement of the trial date. At a January 19,
1996 hearing, Ms. Bartos’s co-counsel in the case, Mr. Smith,


  4
    Over a fourteen month period, the prosecution provided the
defense with almost 5,000 pages of discovery, including 1,787
pages in December, 1994, 2,502 pages in the fall of 1995, an
additional 459 pages in the fall of 1995 and a packet of
discovery that was delivered to the defense on January 26, 1996.


                                6
explained to the court:

              Judge, my first estimate of the
              number of witnesses that will be
              called by the defense may range
              anywhere to 50 to 150, and that is a
              first look at the case. There are at
              least 50 witnesses that I think we
              would be remiss if we did not call.

              Those witnesses have to – there may
              e v e n b e s o m e o u ts ta n d in g
              documents that those witnesses
              have. Once those documents have
              been reviewed we need to interview
              those witnesses, and based on . . .
              the information they provide . . .
              there may be other witnesses that we
              would need to meet with and acquire
              documents from.

                           ...

              There are a number of outstanding
              requests for discovery. There may
              have been Court Orders by this
              Court for the State to turn over
              discovery. There are thousands of
              documents to be reviewed and I just
              don’t see how, even with two
              attorneys working on this case it

                                 7
              could be ready by the 13 th , and
              certainly I’ve gone to my Deputy
              and requested some additional
              attorneys to see if we can move this
              case forward, and get it ready.

App. 262-64. Nevertheless, the court refused to postpone the
trial.

       Since the court would not delay the trial, and believing
that he was then more familiar with the case than his attorney,
given the witnesses and materials his attorney had not had an
opportunity to explore, Pazden informed the court that he
believed he had no alternative but to represent himself. The
following exchange occurred as the court explained the dangers
of proceeding pro se:

       The Court:    And this is what you’re sure you
                     want to do?

       Mr. Pazden: Your Honor, I agree with what you
                   said before. I know the facts of this
                   case better than anybody else. I also
                   agree that I will be at a disadvantage
                   as far as my knowledge of law and
                   the legal procedures, I feel I have no
                   choice in this matter. There has
                   been, up until the last few weeks no
                   investigation done in this case.

                          ...

                                8
[A]s I sated before I believe I’m selecting
the lesser of two evils. If Miss Bartos,
given the level of preparation she’s been
allowed and given the late discovery,
frankly, I think, I think the trial if it started
today with Miss Bartos representing me
would be a farce and mockery of justice.

              ...

My contention is she was prevented from
giving me effective assistance by late
discovery, very late discovery by the fact
she wasn’t appointed until three years after
the arraignment; and by the fact that this
Court hasn’t given her the opportunity to
review the discovery, to do a proper
investigation.

I agree I’m selecting the lesser of two evils.
I know the facts and Miss Bartos, if given
an adjournment and given the opportunity
would know the facts as well as I do and if
she knew the facts as well as I do then I
think we’re prepared to go to trial.

              ...

If Miss Bartos is my counsel, the final
decision is hers and I believe that some of

                    9
      the decisions, and I don’t want to go into
      our attorney-client relationship, but we
      disagree on some of those decisions and I
      think that disagreement would evaporate if
      she was given a chance to study the facts.

The Court:   Mr. Pazden, let me say again to you
             that it is my very distinct opinion
             that it is unwise for you to represent
             yourself and that you would be
             better served if Miss Bartos served
             as the attorney and you were
             available to supplement her . . .

      You’re not family [sic] with the Rules of
      Evidence and you’re not familiar with the
      Court Procedure; you’re certainly someone
      who’s articulate and intelligent, that doesn’t
      mean that you will do even an adequate job
      in representing yourself, but the
      consequences will fall on you if you are ill
      served in this capacity under the law as I
      read it, I can’t save you from yourself. It’s
      your choice.

      I would strongly urge you not to represent
      yourself – in spite of that, is it still your
      decision to represent yourself and be your
      own lawyer?

Mr. Pazden: Yes, it is, your Honor.

                       10
       The Court:     And this decision is made by you
                      entirely voluntarily on your part?

       Mr. Pazden: Yes, it is – well, again I’m selecting
                   the lesser of two evils.

       The Court:     All right.

App. 104-05, 108-09, 110-11.

         In addition, in response to Pazden’s claim that Ms. Bartos
had not been afforded an adequate opportunity to prepare for
trial, the court responded:

              I have personally witnessed
              that Miss Bartos has put in
              countless hours during the
              week and on weekends. She
              has a background in financial
              matters, and I frankly think
              you would be hard pressed to
              find another attorney who
              would devote themselves to
              this case the way she has and
              pour over this discovery the
              way she has.

              I personally am witness to
              that because she is assigned
              to this Court, aside from your
              case, this is where she is

                                   11
              assigned.

App. 108.

        The trial court ultimately permitted Pazden to proceed to
trial pro se with Ms. Bartos acting as stand-by counsel. The
court stated: “I’m satisfied that [Pazden’s decision to represent
himself] is something that is his voluntary choice. That it’s a
decision that he feels in his best interest under all of the
circumstances and that he is making intelligently.” Pazden
represented himself at the ensuing trial, and was subsequently
convicted on all 119 counts that were submitted to the jury. He
was thereafter sentenced to an aggregate prison term of sixteen
years.

        Pazden appealed to the New Jersey Appellate Division.
Except for a remand to resolve a sentencing issue unrelated to
the instant habeas petition, the Appellate Division affirmed the
conviction, and the New Jersey Supreme Court denied review.

       Pazden filed this petition in the District Court on
September 11, 2000. The court thereafter dismissed it as a
mixed petition because it contained both exhausted and
unexhausted claims. Pazden v. Maurer, No. 00-4435, slip. op.
at 28 (D.N.J. Sept. 6, 2001); see Crews v. Horn, 

(3d Cir. 2994) (discussing District Court’s discretion to dismiss
habeas petitions containing both exhausted and unexhausted
claims). The court granted leave to file an amended petition that
did not include the unexhausted claims, and Pazden filed a
second petition containing only the exhausted claims on
December 14, 2001.        In the amended petition, Pazden

                               12
challenged the legality of his 1996 New Jersey state criminal
conviction on several grounds, including the two that are
presently before us.5 The District Court denied Pazden’s
petition and declined to issue a certificate of appealability. We
thereafter granted a certificate of appealability allowing Pazden
to appeal denial of his Sixth Amendment claim that he was
denied the right to counsel, as well as his speedy trial claim.
This appeal followed.

          II. Jurisdiction and Standard of Review.

       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.
The District Court had jurisdiction pursuant to 28 U.S.C. §§
2241 and 2254(a). Since the District Court dismissed Pazden's
petition without conducting an evidentiary hearing, our review
of the District Court's decision is plenary. See Marshall v.
Hendricks, 

, 50 (3d Cir. 2002). We apply the same
standard of review as the District Court, pursuant to the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996).6



   5
    The District Court’s opinion enumerates the claims Pazden
raised in his amended habeas corpus petition. Pazden v.
Maurer, No. 00-4435, slip op. at 11-12 (D.N.J. Sept. 25, 2003).
   6
     Since Pazden filed his petition after the effective date of
AEDPA, the amendments to Title 28 contained in that act
govern our review of Pazden’s claim. See Lindh v. Murphy, 

(1997).

                               13
       Under the relevant AEDPA amendments to § 2254:

              (d) An application for a writ of
              habeas corpus on behalf of a
              person in custody pursuant to the
              judgment of a State court 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;

28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 

(2000), the Supreme Court noted that Ҥ 2254(d)(1) places a
new constraint on the power of a federal habeas court to grant
a state prisoner’s application for a writ of habeas corpus with
respect to claims adjudicated on the merits in state court.” 

The Court explained:

              Under § 2254(d)(1), the writ may
              issue only if one of the following
              two conditions is satisfied--the
              state-court adjudication resulted in
              a decision that (1) "was contrary to

                              14
                 . . . clearly established Federal law,
                 as determined by the Supreme
                 Court of the United States," or (2)
                 "involved an unreasonable
                 application of         . . . clearly
                 established Federal law, as
                 determined by the Supreme Court
                 of the United States." Under the
                 "contrary to" clause, a federal
                 habeas court may grant the writ if
                 the state court arrives at a
                 conclusion opposite to that reached
                 by this Court on a question of law
                 or if the state court decides a case
                 differently than this Court has on a
                 set of materially indistinguishable
                 facts. Under the "unreasonable
                 application" clause, a federal
                 habeas court may grant the writ if
                 the state court identifies the correct
                 governing legal principle from this
                 Court's decisions but unreasonably
                 applies that principle to the facts of
                 the prisoner's case.

       In Matteo v. Superintendent, SCI Albion, 

(3d Cir. 1999) (en banc), we explained that a federal habeas
court makes two inquiries on habeas review under AEDPA:


                                  15
              First, the federal habeas court must
              determine whether the state court
              decision was "contrary to" Supreme
              Court precedent that governs the
              petitioner's claim. Relief is
              appropriate only if the petitioner
              shows that "Supreme Court
              precedent requires an outcome
              contrary to that reached by the
              relevant state court."       In the
              absence of such a showing, the
              federal habeas court must ask
              whether the state court decision
              represents an "unreasonable
              application of" Supreme Court
              precedent: that is, whether the state
              co u rt d ec is io n, evaluated
              objectively and on the merits,
              resulted in an outcome that cannot
              reasonably be justified. If so, then
              the petition should be 

(citations omitted).

       Under the Matteo framework, in analyzing the "contrary
to" provision, we are required “first to identify the applicable
Supreme Court precedent and determine whether it resolves the
petitioner's claim.” 

. For a state
prisoner to obtain habeas relief under the “contrary to”
provision:


                               16
               [I]t is not sufficient for the
               petitioner to show merely that his
               interpretation of Supreme Court
               precedent is more plausible than
               the state court's; rather, the
               petitioner must demonstrate that
               Supreme Court precedent requires
               the contrary outcome. This
               standard precludes granting habeas
               relief solely on the basis of simple
               disagreement with a reasonable
               state court interpretation of the
               applicable precedent.

original).7

               If the federal habeas court
               determines that the state court
               decision was not contrary to the
               applicable body of Supreme Court


    7
       However, “it is not necessary for the petitioner to cite
factually identical Supreme Court precedent. Rather, the critical
question is whether a Supreme Court rule--by virtue of its
factual similarity (though not necessarily identicality) or its
distillation of general federal law precepts into a channeled
mode of analysis specifically intended for application to variant
factual situations--can fairly be said to require a particular result
in a particular case.” 

(citation and
internal quotations omitted).

                                 17
              law – either because the state court
              decision complies with the
              Supreme Court rule governing the
              claim, or because no such rule has
              been established – then the federal
              habeas court should undertake the
              second step of analyzing whether
              the decision was based on an
              unreasonable application of
              Supreme Court precedent.

(internal quotation marks omitted).
Our “unreasonable application of” inquiry does not, however,
authorize habeas relief simply because we might disagree with
the state court’s analysis, or because we would have reached a
different result in the first instance. 

is also not
intended to merely remedy “incorrect application of federal
law.” 

. Rather, the appropriate inquiry
is whether the state court’s application of Supreme Court
precedent was “objectively unreasonable.” 

-90. “The federal habeas court should not grant the petition
unless the state court decision, evaluated objectively and on the
merits, resulted in an outcome that cannot reasonably be
justified under existing Supreme Court precedent.” 

                        III. Discussion.

       Pazden argues that the state trial court violated his Sixth
       Amendment right to counsel by forcing him to chose
       between proceeding to trial without the requested
       continuance or proceeding pro se, and that his Sixth

                                18
       Amendment right to a speedy trial was denied by the
       delay between his initial arraignment in 1991, his
       indictment in 1993, and his trial in 1996. Pazden
       contends that the state court’s denial of his claims was
       contrary to, and an unreasonable application of, Supreme
       Court precedent. We agree that Pazden’s right to counsel
       under the Sixth and Fourteenth Amendments was
       violated under the circumstances here.8 We think it clear
       that, on this record, the state trial court’s determination
       that Pazden’s waiver of counsel was voluntary was both
       “contrary to” and “an unreasonable application of . . .
       clearly established” Supreme Court pronouncements in
       Johnson and Faretta.9        Pazden’s waiver was not a
       product of a free and meaningful choice. Thus, his
       decision to waive counsel and proceed pro se cannot be
       deemed voluntary.


   8
    We affirm the District Court’s denial of relief on Pazden’s
speedy trial claim substantially for the reasons set forth in the
District Court’s opinion. Accordingly, we need not discuss his
speedy trial claim further.
   9
    It appears from the record before us that the state trial court
failed to even consider Johnson and its progeny in determining
whether Pazden could constitutionally proceed to trial pro se.
Rather, the trial court relied mainly on State v. Gallagher, 

(N.J. Super. 1994). As we discuss more fully below,
in Gallagher, the Appellate Division based most of its analysis
on Faretta, and only mentioned Johnson once in passing. See

.

                                19
              A. The Applicable Legal Principles.
        The Sixth Amendment provides that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have
Assistance of Counsel for his defense.” U.S. Const. Amend. VI.
Moreover, the Supreme Court has proclaimed that “the guiding
hand of counsel” must be made available in criminal trials to
those that can not afford to hire an attorney on their own.
United States v. Ash, 

, 308 (1973); Gideon v.
Wainwright, 

(1963). “Compliance with this
constitutional mandate is an essential jurisdictional prerequisite
to a federal court’s authority to deprive an accused of his life or
liberty.” Johnson v. Zerbst, 

, 467 (1938).

        The Sixth Amendment is unique, however, because it not
only guarantees a substantive right - the right to counsel - it also
guarantees the converse right to proceed without counsel at trial.
“[T]he Constitution does not force a lawyer upon a defendant."
Faretta v. California, 

, 814-15 (1975), (quoting
Adams v. United States ex rel. McCann, 

, 279
(1943)). The Sixth Amendment thus embodies two competing
rights because exercising the right to self-representation
necessarily means waiving the right to counsel. Buhl v. Cooksey,

, 789 (3d Cir.2000). Concomitantly, proceeding to
trial represented by counsel as guaranteed under the Sixth
Amendment means that a defendant has not articulated a desire
to waive that right and exercise his/her right to proceed pro se.

      “A waiver is ordinarily an intentional relinquishment or
abandonment of a known right or privilege” and must be the
product of a free and meaningful choice. 

464. “[C]ourts indulge every reasonable presumption against
waiver of fundamental constitutional rights.” 

to
protect the right to counsel, the Constitution requires that any
waiver of that right be the product of the voluntary exercise of
free will. 

.

               It is axiomatic that a criminal
               defendant's waiver of a
               constitutional right must be
               voluntary, knowing and
               intelligent. Therefore, the
               constitutional right of self-
               representation in a criminal
               case is conditioned upon a
               voluntary, knowing and
               intelligent waiver of the right
               to be represented by counsel.

. “If in a habeas corpus hearing, [a
petitioner] . . . convinces the court by a preponderance of
evidence that he neither had counsel nor properly waived his
constitutional right to counsel, it is the duty of the court to grant
the writ.” 

.

       However, where appropriate, “[a] criminal defendant
may be asked, in the interest of orderly procedures, to choose
between waiver and another course of action.” Maynard v.
Meachum, 

, 278 (1st Cir. 1976). Indeed, a
defendant cannot always obtain habeas relief by alleging that a
waiver was not voluntary because the trial court denied a
requested continuance and forced the defendant to decide

                                 21
between proceeding pro se and proceeding with unwanted
counsel.
      Nevertheless,

              [a] clear choice between two
              alternative courses of action does
              not always permit a petitioner to
              make a voluntary decision. If a
              choice presented to a petitioner is
              constitutionally offensive, then the
              choice cannot be voluntary. A
              defendant may not be forced to
              proceed with incompetent counsel; a
              choice between proceeding with
              incompetent counsel or no counsel
              is in essence no choice at all. The
              perm issibility of the choice
              presented to the petitioner . . .
              depends on whether the alternative
              to self-representation offered
              operated to deprive him of a fair
              trial.

Wilks v. Israel, 

, 35 (7th Cir. 1980) (internal
citations omitted).

      Therefore, a reviewing court must be “confident the
defendant is not forced to make a choice between incompetent
counsel or appearing pro se.” United States v. Taylor, 

1136, 1140 (10th Cir. 1997).10 The “court [must] decide
whether the defendant was bowing to the inevitable or
voluntarily and affirmatively waiving his right to counsel.”
United States v. Salemo, 

, 222 (3d Cir. 1995)
(quotations omitted); see also United States ex rel. Martinez,

, 755-6 (2d Cir. 1975) (“appellant was given no
freedom of choice to decide whether he wished to defend
himself. His choice, if choice it can be called, was based
entirely on his bowing to the inevitable.”).

        This imposes on the trial court, “the weighty
responsibility of conducting a sufficiently penetrating inquiry to
satisfy itself that the defendant’s waiver of counsel is knowing
and understanding as well as voluntary.” United States v.
Peppers, 

, 130-31 (3d Cir. 2002). “A judge can
make certain that an accused’s professed waiver of counsel is
understandingly and wisely made only from a penetrating and


   10
     In referring to defense counsel here as “incompetent” we
in no way intend to suggest anything about her ability or
professionalism. Rather, we are only referring to the fact that the
circumstances here (including the prosecution’s piecemeal
approach to tendering discovery) put her in a position where she
could not competently proceed to represent Pazden at trial
absent more time to adequately prepare.
       Indeed, from what we can determine from the trial
judge’s comments, Ms. Bartos is an exceptionally talented and
professional attorney who would have done a commendable job
of representing Pazden if she had been afforded a reasonable
opportunity to prepare for trial.

                                23
comprehensive examination of all the circumstances under
which such a plea is rendered.” Von Moltke v. Gillies, 

, 724 (1948). In conducting this examination a court can
evaluate the motives behind defendant’s dismissal of counsel
and decision to proceed pro se. United States v. Stubbs, 

, 117 (3d Cir. 2002). Moreover, although the record
here does not suggest that Pazden’s request for a continuance
was manipulative, we have cautioned that “even well-founded
suspicions of intentional delay and manipulative tactics can
provide no substitute for the inquiries necessary to protect a
defendant’s constitutional rights.” United States v. Welty, 

, 189 (3d Cir.1982); see also 

.11
Although, a trial court ruling on a request for a continuance may
certainly consider such factors as “the importance of the


   11
     In United States v. Welty, 

(3d Cir.1982), we
explained the two part inquiry a trial court must make to
determine if there is “good cause” to grant a requested
continuance on the eve of trial to afford a defendant an
opportunity to retain substitute counsel. Although Welty was
decided on direct appeal, “[t]he same standard for determining
whether a defendant waived his right to counsel applies in
federal court habeas corpus review of state court proceedings.
Piankhy v. Cuyler, 

, 731 n.3 (3d Cir. 1983) (citing
Brewer v. Williams, 

(1977)).
       However, the Welty two part inquiry is not relevant here
because it is clear from this record that Pazden did not request
substitute counsel. Rather, he relented to the trial court’s
insistence that trial proceed, and went to trial without the benefit
of counsel.

                                24
efficient administration of justice,” 

, we
have also cautioned that “a myopic insistence upon
expeditiousness in the face of a justifiable request for delay can
render the right to defend with counsel an empty formality.”

.

                     B. Pazden’s Request.

       Here, Pazden argues that he “merely bowed to the
inevitable” when he “opted to represent himself at the trial of
this complex, 133-count indictment,” because he was confronted
with “the unconstitutional dilemma of either representing
himself or proceeding to trial with assigned counsel who
admitted being unprepared and unfamiliar with the record.”
Therefore, according to Pazden, his decision to waive counsel
and represent himself was not “voluntary in the constitutional
sense.” 12

        As we noted above, Pazden’s court-appointed attorney,
Ms. Bartos, stated several times on the record that she could not
be prepared to go to trial given the trial date. Specifically, Ms.
Bartos contended that she was hampered by (1) the
prosecution’s refusal to furnish timely discovery; (2) the
prosecution’s furnishing of discovery in a piecemeal fashion and
(3) her inability to interview all 560 witnesses on the witness list




  12
   Pazden challenges only the voluntariness of his waiver, not
whether his waiver was knowing and intelligent.

                                25
before trial was to begin.13 In a letter to the trial court dated
January 29, 1996, Ms. Bartos explained that she would be
requesting a postponement of the trial date because, inter alia,

              [o]n January 26, 1996, the
              Prosecutor’s Office, in the guise of
              delivering discovery relevant to the
              new Indictment . . . delivered to
              defense counsel a packet of
              discovery . . . Items 13 through 37
              obviously relate to [the old
              Indictment] and, while presumably
              in the possession of the Prosecutor
              during the duration of these
              proceedings, have only now been
              delivered to defense counsel on
              January 26, 1996 – some 18 days


   13
      Ms. Bartos’s co-counsel, Mr. Smith, explained to the state
trial court that, “the number of witnesses that will be called by
the defense may range anywhere to 50 to 150 . . . Those
witnesses have . . . outstanding documents . . . we need to
interview those witnesses . . . It’s my opinion that . . . we will
not be ready to try this case on February 13.” Mr. Smith added,
“[t]here are a number of outstanding requests for discovery . . .
There are thousands of documents to be reviewed and I just
don’t see how, even with two attorneys working on this case it
could be ready by the 13 th .”

App. 262.

                               26
              prior to the date scheduled for trial.
              More importantly, a review of the
              information contained in Items 13
              and 33 raise crucial issues
              concerning the processing and
              approval of the Public Offering
              Statement by the Department of
              Community Affairs and alert the
              defense to the existence of certain
              documents. These documents are
              not a portion of the discovery
              supplied by the Prosecutor’s Office
              and are not in the possession of the
              defense. Having been alerted by
              this discovery provided by the
              Prosec u tor’s O ffice of the
              importance of these documents,
              defense counsel would not be
              acting in the best interest of the
              client nor providing able and
              effective counsel in proceeding to
              trial at this time.

App. 252.

       In response to this discovery, Ms. Bartos issued a
subpoena to obtain all the files of the Department of Community
Affairs that pertained to the registration and approval of the
Riverview Village project. She thereafter learned from an
employee of Community Affairs that some of the documents
were in the possession of the Office of the Attorney General;

                               27
therefore, Community Affairs could not provide them to the
defense at that time. Ms. Bartos also explained to the state trial
court that the “documents are critical to the defense . . . not only
in the preparation of the defense, but their availability is
essential in the cross-examination of the States’ witnesses.”
App. 252. Additionally, Ms. Bartos explained to the court that,
because the witness list consisted of 560 names, “it would have
been virtually impossible for [her] to contact, to interview, to
evaluate in assessing those witnesses appearing in that very,
very short period of time.” 

.

        Nevertheless, the court denied Ms. Bartos’s request for
a continuance. Consequently, believing that he was then better
prepared for trial than Ms. Bartos, Pazden “chose to” represent
himself and proceed to trial with Ms. Bartos acting as stand-by
counsel. Pursuant to the Supreme Court’s decision in Von
Moltke, the trial court conducted an inquiry to “decide whether
[Pazden] was bowing to the inevitable or voluntarily and
affirmatively waiving his right to counsel.” See Von 

; 

. That colloquy is set
forth at length above. See pp 

. Upon concluding this
colloquy, the court found, “with regard to [Pazden’s] choice
to represent himself, I’m satisfied that this is something that is


   14
     We recognize that one of the reasons Ms. Bartos was left
with so little time to interview the potential witnesses was
Pazden’s failure to supply her with the witness list until January,
1996. However, as already noted, Ms. Bartos’s request for a
continuance was based on factors that were primarily beyond
her, or Pazden’s, control.

                                28
his voluntary choice.”

                         C. Analysis.

        Clearly, under Faretta, Pazden had the right to waive
counsel and proceed to trial pro se. However, Pazden could
only have done so if he was “voluntarily exercising his informed
free will.” See 

. “[T]here can be no
doubt that [those who wrote the Bill of Rights] understood the
inestimable worth of free choice.” 

Here, Pazden was
not exercising his free will, but was instead compelled to
proceed pro se only because his attorney had not been given
enough time to familiarize herself with the relevant background
of his case. The record here support’s Pazden’s contention that
his decision to proceed pro se was not an exercise of free will,
rather it was the result of him “bowing to the inevitable.” This
record is replete with statements and submissions by Pazden’s
attorney explaining that she was unprepared to proceed to trial,
as well as statements by Pazden explaining the dilemma he was
placed in by the late discovery and the inflexible trial date.15


  15
     In her dissenting opinion, Judge Rendell writes, “I wonder
whether a defendant who has three years to prepare for trial, can
legitimately complain that his Sixth Amendment rights were
violated based on his decision to represent himself because
counsel was not prepared.” Dissent at 2. Her concern is well
taken. However, this record is replete with statements, not only
from Pazden, but also from Ms. Bartos (and her colleague Mr.
Smith), that enumerate the reasons for asking for a three month
trial delay. As noted above, these reasons included the

                               29
        Pazden explained that he was compelled to proceed pro
se by the fact that counsel “was prevented from giving [him]
effective assistance by late discovery . . . and by the fact that this
Court hasn’t given her the opportunity to review the discovery,
to do a proper investigation.” App. 108. Nevertheless, he
emphasized that “Miss Bartos, if given an adjournment and
given the opportunity would know the facts as well as [he did]
and if she knew the facts as well as [he did] then [he would be]
prepared to go to trial.” App. 109. In addition, he believed that
disagreements with some of Ms. Bartos’s decisions “would
evaporate if [Ms. Bartos] was given a chance to study the facts.”


prosecution’s refusal to furnish timely discovery, the
prosecution’s furnishing of discovery in a piecemeal fashion,
and defense counsel’s inability to interview all of the witnesses
on the witness list before the trial was to begin. See pp 4-6, 19-

. Accordingly, we cannot agree with the dissent’s
conclusion that “[i]t was the impossibility of interviewing [all of
the witnesses on the witness list that Pazden provided to Ms.
Bartos] that was at the heart of [Ms. Bartos’s] purported
inability to proceed in mid-February.” Dissent at 1. Ms.
Bartos’s inability to interview all of those witnesses was merely
one of a number of factors that lead to her request.
        Moreover, the trial court could have conducted a more
thorough inquiry and determined if there was “good cause” for
the requested continuance. Thus, notwithstanding the dissent’s
understandable concerns, absent a more probing inquiry than
was conducted here, this record simply does not support a
conclusion that Pazden’s waiver of his Sixth Amendment right
to counsel was voluntary.

                                 30
However, as Pazden expressed, the court’s denial of Ms.
Bartos’s request for a three-month adjournment forced him to
choose between the “lesser of two evils,” effectively leaving
him with “no choice in th[e] matter” at all.16 App. 105, 108,
109, 111. This hardly constitutes a voluntary choice to waive
one’s Sixth Amendment right to counsel under Faretta, and it is
inconsistent with teachings of Johnson.

      As we noted 

at n.9, in deciding whether
Pazden could constitutionally proceed to trial pro se, the state


  16
     Appellees argue that Pazden’s “claim of selecting the lesser
of the two evils by appearing pro se is plainly a ruse – an
attempt to build a record by an arrogant, highly intelligent, but
morally bankrupt, criminal who throughout this trial tried to
manipulate and deceive the trial Court.” Appellees’ brief at 37.
That “argument” is, of course, neither relevant to our inquiry,
nor does it qualify as legal argument. Rather, it is a gratuitous
ad hominem attack that detracts from the persuasiveness of the
government’s argument as well as the professionalism of its
presentation. We should not have to remind officers of the court
that such personal comments have little place in an appellate
brief.
        Moreover, even if the thrust of what the government is
apparently trying to convey was appropriate, it would still be
irrelevant. We remind the appellees that we have previously
noted that “[e]ven well-founded suspicions of intentional delay
and manipulative tactics can provide no substitute for the
inquiries necessary to protect a defendant’s constitutional
rights.” 

; see also 

.

                               31
trial court relied upon State v. Gallagher, 

(N.J.
Super. 1994).17 However, Gallagher does not furnish the
controlling rule of law. There, the defendant was charged with
various racketeering offenses along with fourteen others in a
multi-count indictment. 

However, charges
against all of the other defendants were dismissed and only
Gallagher proceeded to trial. Prior to trial, the trial court granted
his request to proceed pro se. 

In making that request,
Gallagher informed the court that he had successfully
represented himself in two other federal criminal trials, he had
completed two years of law school, and that he was currently
representing himself in an ongoing federal racketeering trial. 

Gallagher of the dangers inherent in proceeding
without counsel, the court appointed standby counsel and
allowed him to represent himself. However, following an
exchange of letters and a dispute over some motions that
Gallagher wanted to file, the trial court rescinded that order and
required Gallagher to proceed to trial represented by defense
counsel. 

The court concluded that Gallagher “did
not ‘appreciate the ins and outs of . . . motion practice.’” 

original).

         On appeal, the Appellate Division of the Superior Court


    17
       The trial court’s ruling was affirmed in an unpublished
opinion that neither side included in any appendix filed with us
for this appeal. Moreover, during argument, counsel represented
that the decision of the appellate court does not add to the trial
court’s analysis. Accordingly, we focus on the state trial court’s
reasons for denying Pazden’s Sixth Amendment claim.

                                 32
of New Jersey reversed, concluding that the trial court’s
revocation of the order allowing Gallagher to proceed pro se
was contrary to Faretta. The appellate court explained that
“Faretta holds that a state may not constitutionally impose a
lawyer upon an unwilling defendant.” 

The court did
not discuss whether Gallagher’s initial waiver had been
voluntary; that was not the issue.18 Rather, the court explained
that it was deciding “defendant’s contention that he was denied
his Sixth Amendment right to represent himself.” 

There was never any dispute about whether his waiver of
counsel had been voluntary or the result of an unconstitutional
dilemma such as the one presented here because his sole Sixth
Amendment argument was that he had not been allowed to
waive counsel.19

       Here, the state court believed that Faretta controlled
Pazden’s appeal. However, Faretta involved a defendant who
was denied his right to proceed pro se and was forced instead to
proceed to trial with defense counsel. Following conviction, the
Supreme Court held that the Sixth Amendment right to counsel
includes the right to represent oneself in a criminal trial.


   18
        It is, of course, the issue here.
  19
    The Appellate Division’s reliance on Faretta was therefore
appropriate because in Faretta, as in Gallagher, the trial court
rescinded a prior order granting the right to proceed pro se and
required the defendant to proceed to trial represented by counsel
based upon the concerns that the defendant could not adequately
represent himself. See 

.

                                   33


. Faretta does not control where, as
here, a defendant’s decision to proceed pro se is “involuntary”
in the constitutional sense. That requires an inquiry into the
voluntariness of Pazden’s purported waiver of counsel.

        Moreover, the trial court’s conclusion that Pazden waived
his right to defense counsel was “contrary to” the Supreme
Court’s decision in Johnson, 

. Johnson instructs
that the trial judge has “the serious and weighty responsibility”
of determining if a defendant’s right to counsel has been
waived, and prohibits forcing a defendant to trial absent a valid
waiver of this Sixth Amendment right. 

Johnson
requires that we “indulge every reasonable presumption against
waiver of fundamental constitutional rights and that we do not
presume acquiescence in the loss of fundamental rights.” 

(internal quotation marks omitted). As the Court explained
there:
                 Since the Sixth Amendment
                 constitutionally en titles one
                 charged with crime to the
                 assistance of counsel, compliance
                 with this constitutional mandate is
                 an essen tial jurisdictional
                 prerequisite to a federal court's
                 authority to deprive an accused of
                 his life or liberty. When this right
                 is properly waived, the assistance
                 of counsel is no longer a necessary
                 element of the court's jurisdiction to
                 proceed to conviction and sentence.
                 If the accused, however, is not

                               34
             represented by counsel and has not
             competently and intelligently
             waived his constitutional right, the
             Sixth Amendment stands as a
             jurisdictional bar to a valid
             conviction and sentence depriving
             him of his life or his 

. In Salemo, we explained that “[a]
defendant will not normally be deemed to have waived the right
to counsel by reluctantly agreeing to proceed pro se under
circumstances where it may appear that there is no 

. We explained:

             [t]he Court[] has scrupulously
             required that a defendant's waiver
             of counsel be both voluntary and a
             "knowing and intelligent
             relinquishment or abandonment of
             a known right or privilege."
             Edwards v. Arizona, 

,
             482, 

, 1883-84, 

(1981). Whether a
             d e f e n d a n t h a s v o l u n t a r i l y,
             know ingly and intellige ntly
             relinquished the right to counsel
             "depends in each case 'upon the
             particular facts and circumstances
             surrounding that case, including the
             background, experience, and
             conduct of the accused.' " 

61 F.3d at 218. In citing Edwards, we noted that the
Court was there quoting 

.

        Similarly, in Sanchez v. Mondragon, 

,
1465 (10th Cir. 1988), reversed on other grounds, the court
explained, “[a] choice between incompetent or unprepared
counsel and appearing pro se is a dilemma of constitutional
magnitude. The choice to proceed pro se cannot be voluntary in
the constitutional sense when such a dilemma exists.” (Internal
citations and quotations omitted).20

       As we explained above, the trial court did inquire into
whether Pazden knowingly, intelligently and voluntarily
relinquished his Sixth Amendment rights. However, in
conducting the inquiry, the trial judge either ignored Pazden’s



   20
       See also 

(“A clear choice between
two alternative courses of action does not always permit a
petitioner to make a voluntary decision. If a choice presented to
a petitioner is constitutionally offensive, then the choice cannot
be voluntary . . . The permissibility of the choice presented to
the petitioner . . . depends on whether the alternative to self-
representation offered operated to deprive him of a fail trial.”);

(“[a] criminal defendant may [not] be
asked . . . to choose between waiver and another course of
action [if] the choice presented to him is . . . constitutionally
offensive.”); United States ex rel. 

(appellant’s choice, “if choice it can be called, was based
entirely on his bowing to the inevitable.”).

                               36
answers or failed to realize their constitutional significance.21
As a result, the trial court’s rejection of Pazden’s Sixth
Amendment claim was contrary to the pronouncements of
Johnson. Pazden’s waiver of counsel was not voluntary in the
constitutional sense. Moreover, to the extent the state court
relied upon Faretta, its decision is an unreasonable application
of the rule the Court announced there because Faretta does not
apply here. “[I]t is [therefore] the duty of [this] court to grant
the [habeas corpus] writ.” 

.

                        IV. Conclusion.

        For the reasons set forth above, we will reverse the
District Court’s denial of federal habeas relief and remand
with instructions to grant the writ if the defendant is not
retried in 180 days.




    21
        Despite the dissent’s concerns, the trial judge did not
conclude that Pazden was “agreeing” to proceed pro se as a
strategy or tactic and not because of a genuine belief that
defense counsel was not sufficiently prepared to represent him.
Moreover, the prosecution’s approach to discovery is certainly
consistent with defense counsel’s concerns about being able to
adequately represent Pazden. We therefore conclude that this
record is simply not sufficient to establish that Pazden’s decision
to waive counsel and proceed pro se was voluntary.

                                37
Pazden v. Maurer, No. 03-4236 - dissenting

RENDELL, Circuit Judge.

        The instant matter unfortunately falls into the category of
cases which exemplify the adage that “bad facts make bad law,”
Haig v. Agee, 

, 319 (1981), and therefore, I
respectfully dissent. Michael Pazden has advanced two strong,
but diametrically opposed, arguments. He first urges that he was
forced to proceed to trial, and to defend himself pro se because
his lawyer did not have sufficient time to prepare, three years
after he was indicted. Second, he contends that his right to a
speedy trial was violated based on the fact he was not afforded
a trial for three years. This should, if nothing else, give us
pause. I find Pazden’s sense of compulsion – which he
repeatedly characterized as a choice “between the lesser of two
evils” – to be misplaced. (Michael Pazden, Trans. Feb. 15, 1996
at 30) The only compulsion sincerely felt here was by the trial
judge, who, as those of us who have been trial judges may
recognize, are faced with defendants who set traps for the
unwary. In my view, which I believe is supported by the record,
Michael Pazden faced no real evils; rather, he was intent on
making his case for just what the majority has ordered.

       While it is true that some discovery was not turned over
until September 1994, and still other items in January of 1995,
nonetheless Ms. Bartos noted that the witness list – of 560
names – was not provided by her own client, Michael Pazden,
until January 1995. It was the impossibility of interviewing
them all that was at the heart of her purported inability to
proceed in mid-February. In addition, many of the records in the

                                38
case were located in Pazden’s house.22 The numerous counts in
the indictment were based on the number of victims, not the
complexity of Pazden’s scheme. The prosecutor in this case,
who was assigned the matter in December 1994, three months
after Ms. Bartos began to represent Pazden, conducted more
than 50 interviews in a short span of time and was prepared to
proceed. (Attorney Snowden, Trans. Feb. 15, 1996 at 39.)

        Although I agree with the majority that ad hominem
attacks should not be employed to undermine constitutional
rights, nonetheless, I wonder whether a defendant who has three
years to prepare for trial and does not give counsel a witness list
until one month before trial, can legitimately complain that his
Sixth Amendment rights were violated based on his decision to
represent himself because counsel was not prepared. Viewed
from a slightly different vantage point, perhaps we have before
us nothing more than a judicial decision not to grant a
continuance in the exercise of a court’s discretion, and in the
face of a companion speedy trial argument. I note that the
majority focuses on Pazden’s choice, not the colloquy or his
understanding of what he was embarking upon, so I question the
applicability of either Johnson or Faretta. Instead, I would


   22
     In fact, during the trial, at the direction of the trial judge, a
lieutenant was dispatched to Pazden’s residence where records
including canceled checks, bank statements, registers and stubs
were located notwithstanding Pazden’s insistence that he was
not in possession of such records. As noted by the prosecutor,
“95 percent of the evidence in this case comes from
Mr. Pazden.” (Attorney Snowden, Trans. Feb. 15, 1996 at 39.)

                                 39
suggest that the constitutional inquiry actually should be
somewhat broader and explore “voluntariness,” by considering
whether Pazden did voluntarily make his decision by virtue of
his own dilatory conduct. And, in any event, I am unable to
locate any Supreme Court opinion either on point, or that has
announced a principle that applies here, such that I do not
believe Judge Marmo’s proceeding to trial, with Pazden
representing himself, was “contrary to” or an “unreasonable
application” of established Supreme Court precedent.




                             40