2004 | Cited 0 times | D. Rhode Island | February 23, 2004


Petitioner John Feole ("Petitioner" or "Feole") has filed a petitionpursuant to 28 U.S.C. § 2254 to vacate and set aside his state courtconviction for solicitation of murder. The case is presently before theCourt on an objection to a Report and Recommendation ("R & R") issuedby Magistrate Judge Jacob Hagopian, which recommends that the petition bedenied.

For the reasons that follow, this Court adopts and incorporates thefindings and recommendations of the Magistrate Judge and holds that therewas no infringement of either the Petitioner's right to testify and/orhis Sixth Amendment right to counsel in the state court proceedingsbelow. The Petition is therefore dismissed. This Court writes separatelyin order to expand upon several issues in the Petition and R & R, andto discuss other points not addressed in the R & R.

Feole has also filed (1) a Motion for Clarification seeking informationas to the docket number and judge assigned to his case;Page 2and (2) a Motion for Reconsideration of the previous denial of amotion to appoint counsel, both of which are denied for the reasonsdiscussed herein.

I. Background and Travel

The facts, as set forth in the R & R, are as follows: In 1995, thePetitioner was convicted in Rhode Island Superior Court of extortion andusury. See State v. Feole, 748 A.2d 239 (R.I. 2000). Duringtrial proceedings in that case, Feole contacted an acquaintance, tellingthe acquaintance that "he had a problem" and wanted some people "blownaway." Feole explained that he wanted the complaining witnesses in hisusury and extortion trial "taken care of." In a series of meetings withthe acquaintance, Feole described his desire to have the acquaintancecarry out the "shootings" and offered to pay the acquaintance $10,000 forthese misdeeds. He also supplied the acquaintance with bullets and a gunand identified where the potential victims resided. Unbeknownst to Feole,the acquaintance contacted the authorities, who listened to, or recorded,some of the conversations and collected evidence concerning the unlawfulscheme.

In due course, Feole was charged with solicitation to commit murder. Atrial commenced before a Superior Court jury. After both parties hadrested, and immediately prior to closing arguments, defense counselinformed the trial judge that Feole wasPage 3insisting that he be permitted to testify. Counsel explained to thecourt that he had previously discussed with Feole the pros and cons oftestifying and that he had advised Feole against testifying. SeeState v. Feole, Cr. No. P2/95-2174, Transcript of Trial Proceedingsconducted on August 1, 1997 (hereinafter "Tr.") at 351-52. Counselindicated that Feole initially acquiesced in his lawyer's advice and thatthe defense had rested on the previous day with Feole's concurrence.Id. at 351.

The trial judge thereafter entertained a motion to reopen the defense'scase in chief. In the course of presenting the motion, defense counselagain indicated that any testimony Feole would offer would be against hisadvice and that he was unprepared to conduct a direct examination ofFeole, since he had been preparing for final arguments. Id. at356.

The trial judge then discussed the proposed testimony with Feole andhis attorney. Feole indicated that he wished to testify concerning eventsleading up to his prior conviction for usury and extortion and that hewished his attorney to cross-examine further a prior witness concerningfacts relating to the earlier conviction. Id. at 355-357. Thetrial judge explained to Feole that this testimony was irrelevant to thesolicitation of murder charges. Id. at 356-357. The trial judgethereafter granted the motion to reopen with certain conditions,including that Petitioner testify in narrative form without theassistance of his attorneyPage 4and that his testimony be restricted to the events concerning thesolicitation of murder charges only. Id. The defendantrequested a new lawyer, which the trial judge denied. Id. at357-59.

After the jury returned to the courtroom, the trial judge asked Feoleif he wished to testify. Feole responded that he did not have a lawyer.Id. at 360. The trial judge construed this response as adeclination, and the case proceeded to final arguments. Id.That same day the jury convicted Feole of solicitation to commit murder.

Feole appealed to the Rhode Island Supreme Court, contending that hisright to testify was infringed upon, and that, by forcing him to forego adirect examination through counsel and to testify in the narrative form,the trial judge interfered with his Sixth Amendment right to counsel. Ina 4-1 decision the Rhode Island Supreme Court affirmed the conviction.State v. Feole, 797 A.2d 1059 (R.I. 2002). The majority heldthat the trial judge's conditional decision to reopen the trial to permitFeole to give narrative testimony did not violate Feole's right totestify. Id. at 1065-66. The majority also held that Feole'sright to counsel was not infringed upon, in view of his initial decisionnot to testify, his last-minute decision to testify against the advice ofcounsel, and his insistence on giving testimony irrelevant to the chargesagainst him. Id. at 1066-67. The court noted that a defendant'sright to counsel "is not unfettered or unlimited butPage 5must be balanced with the public's right to the efficientadministration of justice." Id. at 1067. The majority foundthat the trial judge's questions to Feole in front of the jury aboutwhether he wanted to testify and conclusion that his nonresponsive answerwas a declination was erroneous, but because these issues had not beenproperly preserved for review, the court did not address them.Id. at 1068.

The dissenting justice concluded that Feole's right to counsel wasviolated "(1) when [the trial judge] prevented the defendant's counselfrom conducting a direct examination of the defendant after granting thedefendant's request to allow him to reopen his case so that he couldtestify; and (2) when he asked the defendant whether he wanted to testifyin front of the jury, and then refused to allow him to do so when thedefendant responded that he did not have a lawyer" and that "theseviolations of the defendant's constitutional right to counsel at trialconstituted reversible errors. . . ." Feole, 797 A.2d at1068.

Feole thereafter filed the instant application for federal habeasrelief.1 Feole asserts that he is "appealing [his] case from the R.I.Supreme Court." The Petition does not specify whichPage 6particular issues it asks this Court to review. The Rhode IslandAttorney General filed a memorandum opposing the petition, and Feolefiled a response to the opposition.

The Court referred the Petition to Magistrate Judge Jacob Hagopian fora Report and Recommendation. The Magistrate Judge addressed those issuesaddressed by the Rhode Island Supreme Court, noting that any other issuewould be unexhausted under 28 U.S.C. § 2254 (B)(1)(A). R & R at3.

In his R & R the Magistrate Judge reviewed the pertinent events atthe state court trial and addressed claims involving both Petitioner'sright to testify and his right to counsel. Concerning the defendant'sright to testify, the Magistrate Judge noted that the state Supreme Courtdetermined that Petitioner had waived his right to testify twice, thesecond time because he was prevented from introducing irrelevant andinadmissible evidence. R & R at 5. The Magistrate Judge discussed thesources of a criminal defendant's right to testify and noted that thisright may be limited, citing Rock v. Arkansas, 483 U.S. 44,107 S.Ct. 2704, 97 L.Ed.2d 37 (1987). Id. at 5-6. After notingthat the state court afforded Petitioner an opportunity to testify, theMagistrate Judge concluded that the state Supreme Court's holding thatPetitioner's right to testify was not infringed upon was not an"unreasonable application" of clearly established United StatesPage 7Supreme Court precedent and therefore the alleged infringement wasnot a ground for relief. Id. at 6.

As to Petitioner's right to counsel claim, the Magistrate Judge notedthat the state Supreme Court had correctly identified existing U.S.Supreme Court precedent on this issue, which holds that the SixthAmendment right to counsel is a basic right, the deprivation of whichduring a critical stage of the proceedings results in automatic reversal.Id. at 7-8. The Magistrate Judge found, contrary to the stateSupreme Court majority, that the trial judge's decision to restrict theparticipation of defense counsel during Petitioners's direct examinationwas erroneous. Id. at 8; cf. Feole, 797 A.2d at1066-67. However, the Magistrate Judge further concluded that thisruling, although erroneous, was not an "unreasonable application" ofexisting U.S. Supreme Court precedent concerning the right to counsel.Id. at 8-9.2

Consequently, the Magistrate Judge recommended that Petitioner'sapplication for relief be denied. Id. at 9. The R & R didnot refer in any respect to the dissenting opinion in the Rhode IslandSupreme Court's decision.Page 8

Both parties filed objections to the R & R. The Attorney Generalobjected to that portion of the R & R which found the state court tobe in error in requiring Petitioner to give his testimony without theassistance of counsel but concurred with the Magistrate Judge'srecommendation that the petition be denied. Petitioner's objections areless clear, but the Court construes his submission as objecting to theMagistrate Judge's finding that the state Supreme Court's decision onboth issues was not an unreasonable application of U.S. Supreme Courtprecedent, as well as to the recommendation that the Petition bedismissed.3

Petitioner's response also includes (1) a Motion for Clarification ofinformation regarding the docket number and district judge assigned toeach of his respective petitions and (2) a Motion for Reconsideration ofthe denial of Petitioner's motion to appoint counsel in the instantproceeding. Because all relevant information has been provided toPetitioner, and his other petition, C.A. No. 03-007T, has been dismissed,the Motion forPage 9Clarification is moot. The Motion for Reconsideration is discussedinfra.

II. Analysis

A. Standard of Review

A motion for habeas relief may be referred to a magistrate judge forinitial findings and recommendations. 28 U.S.C. § 636 (b)(1)(B);D.R.I. Local Rule 32. Determinations made by magistrate judges ondispositive pretrial motions and prisoner petitions are reviewed denovo by the district judge. See Fed.R.Civ.P. 72(b). Inmaking a de novo determination, the district judge "may accept,reject, or modify the recommended decision, receive further evidence, orrecommit the matter to the magistrate judge with instructions."Id. In reviewing a magistrate judge's findings andrecommendations, the district court must actually review and weigh theevidence presented to the magistrate judge, and not merely rely on themagistrate judge's report and recommendation. See United States v.Raddatz, 447 U.S. 667, 675-676, 100 S.Ct. 2406, 65 L.Ed.2d 424(1980).Page 10

B. Petitioner's Substantive Objections4

1. AEDPA and Habeas Corpus Review

The Anti-terrorism and Effective Death Penalty Act of 1996, 110 Stat.1214, ("AEDPA") significantly limits the scope of federal habeas review.The AEDPA establishes a two-prong test that federal courts must apply inreviewing a habeas petition filed under 28 U.S.C. § 2254. Thepertinent provisions state: (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). The statute also provides that infederal habeas proceedings, a federal court shall assume that the statecourt's determination of factual issues is correct, subject toPage 11rebuttal only by clear and convincing evidence. See28 U.S.C. § 2254(e)(1).

The "contrary to" and "unreasonable application" clauses of §2254(d)(1) have independent meanings. See Bell v. Cone,535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (citingWilliams v. Taylor, 529 U.S. 362, 404-05, 120 S.Ct. 1495,146 L.Ed.2d 389 (2000)). A decision is "contrary to" federal law if thestate court applies a legal principle different from the governingprinciple set forth in Supreme Court cases, or if the state court decidesthe case differently from a Supreme Court case on materiallyindistinguishable facts. Bell, 535 U.S. at 694;Williams, 529 U.S. at 407-08. A state decision is deemed an"unreasonable application" of Supreme Court law if the state courtcorrectly identifies the governing legal principle from Supreme Courtdecisions but unreasonably applies it to the facts of the particularcase. Bell, 535 U.S. at 694; Williams, 529 U.S. at404-05. In describing the "unreasonable application" standard, theSupreme Court has repeatedly noted that "an unreasonableapplication of federal law is different from an incorrect orerroneous application of federal law." Williams, 529U.S. at 412.

The First Circuit has recently elaborated on the unreasonableapplication standard. For a state decision to be deemed unreasonable

`some increment of incorrectness beyond error is required.' [Citation omitted.] The increment need notPage 12 necessarily be great, but it must be great enough to make the decision unreasonable in the independent and objective judgment of the federal court.

McCambridge v. Hall, 303 F.3d 24, 36 (1st Cir. 2002) (enbanc) (quoting Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000)). The McCambridge court further noted that "if it is aclose question whether the state decision is in error, then the statedecision cannot be an unreasonable application." Id.5

2. The Right to Testify

Petitioner objects to that portion of the Magistrate Judge's R & Rfinding that there was no deprivation of his constitutional right totestify at his trial so as to require habeas relief. The Magistrate Judgefound that the state Supreme Court, in analyzing this claim, correctlyidentified the controlling U.S. Supreme Court precedent, namely,Rock v. Arkansas, 483 U.S. 44, 107 S.Ct. 2704, 97 L.Ed.2d 37(1987), and therefore the appropriate analysis was whether that court'sdecision was an "unreasonable application" of this precedent.See R & R at 4-5. After discussing the pertinent principlesregarding the right to testify, the Magistrate Judge concluded that thestate Supreme Court's decision on this issue could not be deemed an"unreasonable application" of clearly established U.S. Supreme Courtprecedent. Id. at 6.Page 13

A defendant's right to testify at his own criminal trial, although notexpressly set forth in the text of the U.S. Constitution, "has [its]sources in several provisions of the Constitution." Rock, 483U.S. at 51. These sources include the Fifth, Sixth and FourteenthAmendments. Id. at 51-53. A defendant may, however, waive hisright to testify. See Jones v. Barnes, 463 U.S. 745, 751,103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) ("it is . . . recognized thatthe accused has the ultimate authority to make certain fundamentaldecisions regarding the case, as to whether to plead guilty, waive ajury, testify in his or her own behalf, or take an appeal").

The right to testify may also be limited. A defendant who testifiesmust comply with restrictions which are not arbitrary or disproportionateto the purposes they are designed to serve. See Rock, 483 U.S.at 55-56. For example, the right to testify does not extend to testifyingfalsely. See Nix v. Whiteside, 475 U.S. 157, 173,106 S.Ct. 988, 89 L.Ed.2d 123 (1986).

This Court agrees with the Magistrate Judge that the state SupremeCourt's conclusion that the Petitioner's right to testify was notunconstitutionally infringed upon and therefore did not constitute an"unreasonable application" of clearly established U.S. Supreme Courtprecedent. As the Supreme Court has noted, "`[e]very criminal defendantis privileged to testify in his own defense, or to refuse to do so.'"Rock, 483 U.S. at 53 (quotingPage 14Harris v. New York, 401 U.S. 222, 225, 91 S.Ct. 643,645, 28 L.Ed.2d 1 (1971)). At trial, Petitioner voluntarilyrelinquished his right to testify during his case-in-chief.Feole, 797 A.2d at 1065. As noted by the state Supreme Court,his change of heart and last-minute request to testify, against hiscounsel's advice, presented the trial judge with a dilemma. While thetrial judge could well have denied this request given that the Defendanthad rested his case, the decision to reopen the evidence with therestrictions imposed by the trial judge — namely, that histestimony relate to the solicitation of murder charge, rather thanPetitioner's earlier trial, and be given in narrative form — whileperhaps not ideal, was not a wholly unreasonable response to thisdilemma.

The question here is not whether this Court agrees with the stateSupreme Court that these limits on Petitioner's trial testimony wereproper or reflected the best choice of alternatives available, but ratheronly whether the state Supreme Court's conclusion was an unreasonableapplication of U.S. Supreme Court precedents. See Bell, 535U.S. at 694. Upon review of both the state Supreme Court's opinion andthe trial transcript excerpt, this Court cannot say that the majorityopinion was unreasonable. The U.S. Supreme Court has noted that the rightto testify is not absolute and that it must sometimes "bow to accommodateotherPage 15legitimate interests in the criminal trial process."Rock, 483 U.S. at 55 (internal quotation marks and citationomitted).

The First Circuit's decision in United States v. Peterson,233 F.3d 101 (1st Cir. 2000), although involving a trial in federal courtrather than state court, is instructive. There, the defendant was triedon narcotics and firearms charges. The defense rested without thedefendant testifying. Thereafter, before the jury charge, the defendanthad a change of heart and sought to testify. Senior Judge Lagueux of thisCourt refused to reopen the trial to permit defendant to testify.Defendant was convicted and appealed. The First Circuit affirmed,holding, inter alia, that the trial judge's refusal to reopenthe trial was not an abuse of discretion and not an infringement upondefendant's constitutional right to testify. 233 F.3d at 105-07. TheCourt of Appeals stated that in deciding whether to reopen a trial topermit testimony, "the court must consider whether the likely value ofthe defendant's testimony outweighs the potential for disruption orprejudice in the proceedings, and if so whether the defendant has areasonable excuse for failing to present the testimony during hiscase-in-chief." Id. at 106. The court found significant thefact that, as here, defense counsel indicated he could not participate inthe direct examination of the defendant. Id. at 107. Moreover,the defendant could not state the precise nature of his testimonyPage 16and offered no excuse for not testifying during his case-in-chief.Id.

Here, as in Peterson, Petitioner changed his mind after thedefense had rested, and his counsel refused to assist him in testifying.Similarly, there was no value to Petitioner's testimony, given hisinsistence on testifying about events in his other trial. Moreover,Petitioner has offered no excuse for not testifying prior to resting.Finally, the state trial court's action here (reopening the trial withconditions) was in theory more favorable to the defendant than the trialjudge's action in Peterson. While the resulting colloquybetween the judge and the Defendant, which took place in front of thejury, was unfortunate (this is discussed in more detail below) it did notmaterially change the fairness of the proceeding. In any event, all ofthis was a situation of the Defendant's own making, and the trial judgewas merely attempting to mitigate the problem created by him whilebending over backwards to be fair.

This Court adopts the Magistrate Judge's finding that the state SupremeCourt decision upholding the conditions imposed by the state trial judgeincident to the reopening of Feole's case did not constitute anunreasonable application of existing U.S. Supreme Court precedent so asto qualify for habeas relief.Page 17

3. Right to Counsel

Petitioner's alternative ground for federal habeas relief is that hisSixth Amendment right to counsel was infringed upon when the state trialjudge, sua sponte, required him to forego a direct examinationand present his testimony in narrative form.

In his R & R, the Magistrate Judge found that the state SupremeCourt correctly identified the controlling Supreme Court precedent onthis issue, and he therefore reviewed whether the state court decisionconstituted an "unreasonable application" of that precedent. R & R at7. The Magistrate Judge found that although the state trial judge'sdecision to require Petitioner to testify without the assistance of hiscounsel at a critical stage in the proceedings was erroneous, thatdecision was not "unreasonable" so as to entitle Petitioner to habeasrelief. Id. at 7-9. This conclusion was based on the fact thatthe Petitioner had initially waived his right to testify upon advice ofcounsel; that he changed his mind at the eleventh hour; that this changeof heart came as a surprise to his attorney, who was unprepared toconduct a direct examination; and that the trial judge's decision toreopen Petitioner's case-in-chief to permit him to testify wasdiscretionary. Id. at 9.

The right of a criminal defendant to be represented by counsel isfirmly rooted in our system of justice. It is a right guaranteed by theSixth Amendment to the Constitution, whichPage 18provides that "[i]n all criminal prosecutions, the accused shallenjoy the right . . . to have the Assistance of Counsel for hisdefence." U.S. Const, amend. VI; see Gideon v. Wainwright,372 U.S. 335, 344-45, 83 S. Ct 792, 9 L.Ed.2d 799 (1963) ("`The right to beheard would be, in many cases, of little avail if it did not comprehendthe right to be heard by counsel.'") (internal citations omitted). Thatright is fully applicable to state court proceedings. Gideon,372 U.S. at 345.

The participation of counsel at critical stages in the proceedings,such as the direct testimony of the accused, operates to assure that theaccused's interest will be protected. United States v. Wade,388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). The SupremeCourt has concluded that the assistance of counsel is among those"constitutional rights so basic to a fair trial that their infraction cannever be treated as harmless error." Chapman v. California,386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). "When a defendant isdeprived of the presence and assistance of his attorney, eitherthroughout the prosecution or during a critical stage . . . reversalis automatic." Holloway v. Arkansas, 435 U.S. 475, 489, 98 So.Ct. 1173, 55 L.Ed.2d 426 (1978) (citing Gideon, 372 U.S. at335).

The record indicates that after both parties had rested, andimmediately prior to closing arguments, defense counsel informed thetrial judge that Feole was insisting that he be permitted toPage 19testify. Counsel explained to the court that he had previouslydiscussed with Feole the pros and cons of testifying and that he hadadvised Feole against testifying. Counsel further indicated that Feoleinitially acquiesced in his lawyer's advice and that the defense hadrested on the previous day with Feole's consent.

The dilemma created by Feole's last-minute request, which this Courtnoted in discussing the right to testify claim, is more problematic inthe context of the right to counsel issue. As observed by the stateSupreme Court, the trial judge was faced with an attorney who was notonly unprepared and unwilling to examine his client, but who nonethelessrequested the court to reopen the case to allow his client to testify.See Feole, 797 A.2d at 1064-65. The trial transcript showsthat during the discussion with the trial judge concerning his proposedtestimony, Feole indicated that he wished to testify concerning eventsleading up to his prior conviction for usury and extortion, andto have his counsel further cross-examine a prior witness as to thoseevents. Tr. at 355. The trial judge explained to Feole that thistestimony was irrelevant to the solicitation of murder charges. Clearly,the refusal to allow irrelevant testimony was an appropriate limitation.

The trial judge thereafter, however, granted the motion to reopen withcertain conditions, including that Petitioner testify in narrative form,without the assistance of his attorney, concerning the solicitation ofmurder charges only. Id. at 356-57.Page 20The defendant then requested a new lawyer (i.e., one whowould willingly assist him in testifying), which request was denied.Id. at 357-58. The state Supreme Court upheld the denial,stating that "[t]he right to counsel of one's choice is not unfettered orunlimited but must be balanced with the public's right to the efficientadministration of justice." Feole, 797 A.2d at 1067.

There is little question that the decision to limit the scope of theDefendant's questioning to relevant areas and the denial of the requestfor a new attorney were appropriate. More problematic, however, was thedecision to reopen the testimony without allowing defense counsel a briefcontinuance to prepare, and to require the Defendant to testify innarrative fashion. As an initial matter, all of this was avoidable. Oncethe judge agreed to reopen the record, limited the scope of testimony anddenied the request for new counsel, the judge could have provided theDefendant with several options: 1) a brief continuance and opportunity totestify through counsel; 2) if counsel refused to participate, theDefendant could either dismiss his attorney and proceed prose; or 3) forego the additional testimony and withdraw themotion to reopen. Any of these options would have avoided the bizarrescene of asking the Defendant in front of the jury if he wished toPage 21testify and having him reply (not through counsel) that he did nothave an attorney.6

Given the procedural waiver regarding the brief colloquy between thetrial judge and the Defendant in the presence of the jury, the Court isleft only with the question of whether the Rhode Island Supreme Courtacted inconsistently with clearly establishedPage 22federal law in ruling that the Defendant's Sixth Amendment rightswere not violated by the trial judge's actions.

Upon review of the Magistrate Judge's R & R, the transcript of thecolloquy in question, and the state Supreme Court majority and dissentingopinions, although it is a close call, this Court cannot say that thetrial judge's actions and the state Supreme Court's affirmance of thoseactions was inconsistent with clearly established federal law. Whilethere appears to be no Supreme Court decision directly on point, theFirst Circuit — like the Rhode Island Supreme Court — hasrecognized that a defendant's right to counsel is not unlimited, but issubject to the orderly administration of justice. See United Statesv. Poulack, 556 F.2d 83, 86 (1st Cir. 1977), cert. denied,434 U.S. 986, 98 S.Ct. 613, 54 L.Ed.2d 480 (1977) (the right of acriminal defendant to have counsel of his or her choice "`must be weighedand balanced against an equally desirable public need for the efficientand effective administration of criminal justice'") (citing Carey v.Rundle, 409 F.2d 1214 (3d Cir. 1969)); accord Tuitt v.Fair, 822 F.2d 166, 171 (1st Cir. 1987).

The trial judge was not required to continue the case in order topermit Petitioner's counsel to prepare, or for Petitioner to retain othercounsel, as the state court dissent suggests. Feole, 797 A.2dat 1071. In Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610,75 L.Ed.2d 610 (1983) the Supreme Court noted that "[n]otPage 23every restriction on counsel's time or opportunity to investigateor to consult with his client or otherwise to prepare for trial violatesa defendant's Sixth Amendment right to counsel. . . . Consequently,broad discretion must be granted trial courts on matters ofcontinuances." Here, Petitioner had been ably represented by counselthroughout the entire trial. Counsel had considered and rejected puttingFeole on the stand, and could not endorse his effort to take the stand.Further, counsel was prepared to, and did, continue his representationthrough final arguments. The state Supreme Court decision upholding thetrial judge's denial of counsel struck an appropriate balance between adefendant's right to counsel and the state court's interest in theefficient and orderly administration of justice.

Furthermore, assuming arguendo that the brief colloquy betweenthe judge and the Defendant in the presence of the jury could beconsidered as well, there is still no ground for habeas relief. Althoughthe jury could have inferred from the exchange that Feole had somethingto hide by not taking the stand, the trial judge gave a curativeinstruction, cautioning the jurors that they "may not draw any inferenceof guilt of the defendant" because of his failure to testify.7 In anyevent, as noted above in connectionPage 24with the right to testify, Petitioner does not clearly set forththe facts about which he would have testified and how his testimony wouldhave helped his case. Thus, there is no showing that the likely value ofPetitioner's testimony would outweigh the potential for disruption orprejudice in the proceedings or that Petitioner had a reasonable excusefor failing to present the testimony during his case-in-chief. SeePeterson, 233 F.3d at 106.

Undoubtedly, this case presents some close questions. There is recordsupport for the findings and conclusions in both the majority anddissenting state Supreme Court opinions; indeed, the opinions differ onlyas to the interpretation of the court colloquy set forth in the trialtranscript excerpt. Nonetheless, this case does not present a state courtaction that has "`some increment of incorrectness beyond error' . . .great enough to make the decision unreasonable in the independent andobjective judgment of the federal court." McCambridge, 303 F.3dat 36 (citing 221 F.3d 100). As the First Circuit observed in that case,a close question almost always means that the state court decision wasnot an "unreasonable application." Id.

Finally, the question here is not whether this Court would have decidedFeole's appeal differently or in accordance with the dissenting opinion,but rather whether the state Supreme Court's majority opinion constitutesan unreasonable application ofPage 25existing federal law concerning a criminal defendant's right tocounsel. See Williams, 529 U.S. at 411 ("Under § 2254(d)(1)'s `unreasonable application' clause, then, a federal habeas court maynot issue the writ simply because that court concludes in its independentjudgment that the relevant state-court decision applied clearlyestablished federal law erroneously or incorrectly. Rather, thatapplication must also be unreasonable."). This Court declines to findthat it was.

For the foregoing reasons, the Court concurs with the MagistrateJudge's Report and Recommendation that the state Supreme Court's decisionthat there was no unconstitutional deprivation of Feole's right tocounsel was not an "unreasonable application" of U.S. Supreme Courtprecedent so as to warrant habeas relief.

C. Motion for Reconsideration

Petitioner has also filed a Motion for Reconsideration of the previousdenial of his motion for appointment of counsel to represent him in thishabeas proceeding. On June 26, 2003 the Magistrate Judge deniedPetitioner's motion for appointment of counsel.8Page 26

In this motion, Petitioner asserts that due to the complexity of thelegal and factual issues and his inability to investigate the facts andpresent his claims, counsel should be appointed to represent him. Hepoints to his inadequate knowledge of English, and his learninginterference, in support of which he submits: (1) a letter from hisprison instructor stating that Petitioner "has a severe learninginterference" and that his "literacy level is extremely low;" and (2)excerpts from the state court sentencing hearing transcript containingdefense counsel's references to Petitioner's lack of education and(without elaboration) past head injuries.

There is no constitutional right to counsel in habeas corpusproceedings. Pennsylvania v. Finley, 481 U.S. 551, 555, 107 So.Ct. 1990, 95 L.Ed.2d 539 (1987); see Ellis v. United States,313 F.3d 636, 652-653 (1st Cir. 2002) (same in context of § 2255proceeding). By statute, a court may in its discretion appoint counsel ina § 2254 proceeding when "the interests of justice so require."Rule 8(c), Rules Governing Sec. 2254 Cases in U.S. District Courts;see 28 U.S.C. § 2254(h) and 18 U.S.C. § 3006A(g). Suchan appointment is rare in a federal habeas proceeding, United Statesv. Mala, 7 F.3d 1058, 1063-64 (1st Cir. 1993), and is generallyfound to be unnecessary if a hearing is not required, the issues arestraightforward, and the petitioner has demonstrated an understanding ofthe case and an ability to present his claimsPage 27coherently. See Blasi v. Attorney General ofPennsylvania, 30 F. Supp.2d 481, 489 (M.D. Pa. 1998).

Here, an appointment of counsel is not warranted. The Magistrate Judgedetermined that there was no need for an evidentiary hearing in this case(nor has Petitioner requested one). This Court concurs that the record— which includes two state Supreme Court opinions and a transcriptof the pertinent trial proceedings — adequately presented the factspertinent to Petitioner's claims of violation of his right to testify andright to counsel. See Winsett v. Washington, 130 F.3d 269, 281(7th Cir. 1997) (affirming denial of counsel in § 2254 proceedingwhere appointed counsel would add little to the analysis, particularly inlight of thorough and competing state court opinions in the record).

Moreover, while Petitioner's papers are not a model of conciseness andclarity, construed liberally, they adequately convey the gist of hisclaims concerning his right to testify and his right to counsel. Theexhibits submitted in support of his motion are brief and conclusory anddo not persuade the Court of the need for counsel. Furthermore, as notedby the state Supreme Court, the evidence against Petitioner at hissolicitation of murder trial was strong, and the testimony whichPetitioner sought to give in that trial, with the assistance of counsel,appeared to relate to his earlier conviction for usury and extortion andwasPage 28thus irrelevant. See Feole, 797 A.2d at 1066 (notingFeole was not prejudiced by trial judge's restrictions, in view of "theoverwhelming evidence presented by the state").

The Motion for Reconsideration is therefore denied.

III. Conclusion

For the foregoing reasons, the Court hereby adopts the MagistrateJudge's Report and Recommendation and holds that Petitioner'sconstitutional right to testify and right to counsel were not violated soas to warrant federal habeas relief. Therefore, the Petition is herebyDISMISSED.

Likewise, Petitioner's motion for reconsideration of the Court'sprevious denial of appointment of counsel is DENIED, and his motion forclarification is DENIED as moot.


1. Feole also filed a second application for relief under28 U.S.C. § 2254, Feole v. R.I. Attorney General, C.A. No. 03-007T,which purports to seek relief from his conviction of usury and extortion.That petition was assigned to Chief Judge Ernest C. Torres and has beendismissed. See id., Order Denying Petition for Writof Habeas Corpus dated August 21, 2003.

2. This portion of the R & R focused on the trial judge'sactions, rather than on the state Supreme Court's decision affirmingthose actions. However, because the R & R reached the same conclusionas the state Supreme Court majority, the Court will construe the R &R as finding that the state Supreme Court decision itself was not anunreasonable application of U.S. Supreme Court precedent on thisissue.

3. In his pro se response Petitioner states withoutelaboration that he "does not object to the states [sic] motion todismiss at this time as long as it is without prejudice." SeePlaintiff's Response to R & R at 6. However, in view of Petitioner'soverall response to the R & R, which totals more than 30 pages,including exhibits, this Court cannot conclude from that single sentencethat Petitioner desires to waive all objections to the R & R.Moreover, to dismiss "without prejudice" would make little sense andwould effectively invite the Petitioner to file a successive petition.Thus, the Court will treat his filing as an objection.

4. Although it does not appear that Feole pursued any of the statelaw post-conviction remedies available to him under R.I. Gen Laws §10-9.1-1, et seq., the Attorney General has notraised any issue as to exhaustion of state court remedies, nor does the R& R discuss the issue. Section 2254(b)(1)(A) provides that anapplication for writ of habeas corpus shall not be granted unless "theapplicant has exhausted the remedies available in the courts of theState"; or state post-conviction remedies are either unavailable orineffective. The Court need not, however, address the exhaustion issue,since Feole's substantive claims here were presented on his direct appealto the state Supreme Court, and this Court, in any event, is free to denyall claims, even if unexhausted, on the merits. See28 U.S.C. § 2254 (b)(2) ("An application for a writ of habeas corpus may bedenied on the merits, notwithstanding the failure of the applicant toexhaust the remedies available in the courts of the State.").

5. In McCambridge, the First Circuit held that a stateappellate court's finding that there was no Brady violation inthe course of defendant's trial (resulting in his eventual conviction formanslaughter) did not constitute an "unreasonable application" of U.S.Supreme Court precedent. 303 F.3d at 37-43.

6. Although not expressly discussed in the Magistrate Judge's R& R, the question posed by the trial judge in the presence of thejury further complicates the question. After the jury returned to thecourtroom, the following exchange took place: THE COURT: Your (sic) resting. Mr. Feole, do you wish to take the stand? THE DEFENDANT: I don't have a lawyer. THE COURT: The answer is no. All right the case is rested, both sides. Ladies and gentlemen, we will now hear final arguments. . . .Tr. at 360. The state Supreme Court majority noted that the trial judge committedan error in asking Feole in the jury's presence whether he wished totestify, but the court declined to address the constitutional issue, asit was not raised, briefed or argued on appeal. Feole, 797 A.2dat 1068 (citing R.I. Sup.Ct. R. 16(a)). The violation of a stateprocedural rule may constitute an "independent and adequate stategrounds" so as to bar federal habeas corpus relief. See Coleman v.Thompson, 501 U.S. 722, 729-30, 111 S.Ct. 2546, 115 L.Ed.2d 640(1991) (adequate and independent state grounds doctrine applies to barfederal habeas relief when a state court declined to address a prisoner'sfederal claims because the prisoner had failed to meet a state proceduralrequirement). Thus, the state Supreme Court committed no constitutionalerror on this issue, as it never addressed the constitutionalquestion.

7. The state Supreme Court observed that this error, even ifaddressed, would be subject to harmless error analysis, as it did notconstitute a "structural defect that affects `[t]he entire conduct of thetrial from beginning to end.'" Feole, 797 A.2d at 1067 n.7(quoting Arizona v. Fulminante, 499 U.S. 279, 309,111 S.Ct. 1246, 1265, 113 L.Ed.2d 302, 331 (1991)).

8. If Petitioner's motion for reconsideration is construed as anappeal of the Magistrate Judges's initial ruling, it would be untimely.See Fed.R.Civ.P. 72(a) ("Within 10 days after being servedwith a copy of the magistrate judge's order, a party may serve and fileobjections to the order; a party may not thereafter assign as error adefect in the magistrate judge's order to which objection was not timelymade."); D.R.I. Local Rule 32. The Court instead construes the request asa separate motion for reconsideration.

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