2004 | Cited 0 times | D. Rhode Island | February 25, 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, the Petitioner was convicted in Rhode Island Superior Court ofextortion and usury. 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 toFeole, the acquaintance contacted the authorities, who listened to, orrecorded, some of the conversations and collected evidence concerning theunlawful scheme.

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. at 356.

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. The trial judgeexplained to Feole that this testimony was irrelevant to the solicitationof murder charges. Id. at 356-357. The trial judge thereafter granted themotion to reopen with certain conditions, including that Petitionertestify in narrative form without the assistance of his attorneyPage 4and that his testimony be restricted to the events concerning thesolicitation of murder charges only. Id. The defendant requested a newlawyer, which the trial judge denied. Id. at 357-59.

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 a declination, andthe case proceeded to final arguments. Id. That same day the juryconvicted 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 held that thetrial judge's conditional decision to reopen the trial to permit Feole togive narrative testimony did not violate Feole's right to testify. Id. at1065-66. The majority also held that Feole's right to counsel was notinfringed upon, in view of his initial decision not to testify, hislast-minute decision to testify against the advice of counsel, and hisinsistence on giving testimony irrelevant to the charges against him.Id. at 1066-67. The court noted that a defendant's right to counsel "isnot unfettered or unlimited butPage 5must be balanced with the public's right to the efficient administrationof justice." Id. at 1067. The majority found that the trial judge'squestions to Feole in front of the jury about whether he wanted totestify and conclusion that his nonresponsive answer was a declinationwas erroneous, but because these issues had not been properly preservedfor 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 at 1068.

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 Island AttorneyGeneral filed a memorandum opposing the petition, and Feole filed aresponse 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 at 3.

In his R &R the Magistrate Judge reviewed the pertinent events at thestate court trial and addressed claims involving both Petitioner's rightto testify and his right to counsel. Concerning the defendant's right totestify, 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 noting that the state courtafforded Petitioner an opportunity to testify, the Magistrate Judgeconcluded that the state Supreme Court's holding that Petitioner's rightto 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 automaticreversal. 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 at 1066-67. However, theMagistrate Judge further concluded that this ruling, although erroneous,was not an "unreasonable application" of existing U.S. Supreme Courtprecedent 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 did not refer in anyrespect to the dissenting opinion in the Rhode Island Supreme Court'sdecision.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 to be inerror 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 on dispositivepretrial motions and prisoner petitions are reviewed de novo by thedistrict judge. See Fed.R.Civ.P. 72(b). In making a de novodetermination, the district judge "may accept, reject, or modify therecommended decision, receive further evidence, or recommit the matter tothe magistrate judge with instructions." Id. In reviewing a magistratejudge's findings and recommendations, the district court must actuallyreview and weigh the evidence presented to the magistrate judge, and notmerely rely on the magistrate judge's report and recommendation. SeeUnited States v. Raddatz, 447 U.S. 667, 675-676, 100 S.Ct. 2406, 65L.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. The pertinentprovisions 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 in federalhabeas proceedings, a federal court shall assume that the state court'sdetermination of factual issues is correct, subject toPage 11rebuttal only by clear and convincing evidence. See 28 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) (citing Williams v. Taylor,529 U.S. 362, 404-05, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000)). Adecision is "contrary to" federal law if the state court applies a legalprinciple different from the governing principle set forth in SupremeCourt cases, or if the state court decides the case differently from aSupreme Court case on materially indistinguishable 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. at 404-05. In describingthe "unreasonable application" standard, the Supreme Court has repeatedlynoted that "an unreasonable application of federal law is different froman incorrect or erroneous 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) (en banc) (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). The McCambridgecourt further noted that "if it is a close question whether the statedecision is in error, then the state decision cannot be an unreasonableapplication." 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), andtherefore the appropriate analysis was whether that court's decision wasan "unreasonable application" of this precedent. See R&R at 4-5. Afterdiscussing the pertinent principles regarding the right to testify, theMagistrate Judge concluded that the state Supreme Court's decision onthis issue could not be deemed an "unreasonable application" of clearlyestablished U.S. Supreme Court precedent. 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, 483 U.S. at51. These sources include the Fifth, Sixth and Fourteenth Amendments.Id. at 51-53. A defendant may, however, waive his right to testify. SeeJones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987(1983) ("it is . . . recognized that the accused has the ultimateauthority to make certain fundamental decisions regarding the case, as towhether to plead guilty, waive a jury, 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 testifying falsely.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 defendant isprivileged 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 voluntarily relinquished his right totestify during his case-in-chief. Feole, 797 A.2d at 1065. As noted bythe state Supreme Court, his change of heart and last-minute request totestify, against his counsel's advice, presented the trial judge with adilemma. While the trial judge could well have denied this request giventhat the Defendant had rested his case, the decision to reopen theevidence with the restrictions imposed by the trial judge — namely, thathis testimony 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, 535 U.S. at 694.Upon review of both the state Supreme Court's opinion and the trialtranscript excerpt, this Court cannot say that the majority opinion wasunreasonable. The U.S. Supreme Court has noted that the right to testifyis not absolute and that it must sometimes "bow to accommodate otherPage 15legitimate interests in the criminal trial process." Rock, 483 U.S. at 55(internal quotation marks and citation omitted).

The First Circuit's decision in United States v. Peterson, 233 F.3d 101(1st Cir. 2000), although involving a trial in federal court rather thanstate court, is instructive. There, the defendant was tried on narcoticsand firearms charges. The defense rested without the defendanttestifying. Thereafter, before the jury charge, the defendant had achange of heart and sought to testify. Senior Judge Lagueux of this Courtrefused to reopen the trial to permit defendant to testify. Defendant wasconvicted and appealed. The First Circuit affirmed, holding, inter alia,that the trial judge's refusal to reopen the trial was not an abuse ofdiscretion and not an infringement upon defendant's constitutional rightto testify. 233 F.3d at 105-07. The Court of Appeals stated that indeciding whether to reopen a trial to permit testimony, "the court mustconsider whether the likely value of the defendant's testimony outweighsthe potential for disruption or prejudice in the proceedings, and if sowhether the defendant has a reasonable excuse for failing to present thetestimony during his case-in-chief." Id. at 106. The court foundsignificant the fact that, as here, defense counsel indicated he couldnot participate in the direct examination of the defendant. Id. at 107.Moreover, the defendant could not state the precise nature of histestimonyPage 16and offered no excuse for not testifying during his case-in-chief.Id.

Here, as in Peterson, Petitioner changed his mind after the defense hadrested, and his counsel refused to assist him in testifying. Similarly,there was no value to Petitioner's testimony, given his insistence ontestifying about events in his other trial. Moreover, Petitioner hasoffered no excuse for not testifying prior to resting. Finally, the statetrial court's action here (reopening the trial with conditions) was intheory more favorable to the defendant than the trial judge's action inPeterson. While the resulting colloquy between the judge and theDefendant, which took place in front of the jury, was unfortunate (thisis discussed in more detail below) it did not materially change thefairness of the proceeding. In any event, all of this was a situation ofthe Defendant's own making, and the trial judge was merely attempting tomitigate the problem created by him while bending over backwards to befair.

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 examination andpresent his testimony in narrative form.

In his R &R, the Magistrate Judge found that the state Supreme Courtcorrectly identified the controlling Supreme Court precedent on thisissue, and he therefore reviewed whether the state court decisionconstituted an "unreasonable application" of that precedent. R&R at 7.The Magistrate Judge found that although the state trial judge's decisionto require Petitioner to testify without the assistance of his counsel ata critical stage in the proceedings was erroneous, that decision was not"unreasonable" so as to entitle Petitioner to habeas relief. Id. at 7-9.This conclusion was based on the fact that the Petitioner had initiallywaived his right to testify upon advice of counsel; that he changed hismind at the eleventh hour; that this change of heart came as a surpriseto his attorney, who was unprepared to conduct a direct examination; andthat the trial judge's decision to reopen Petitioner's case-in-chief topermit him to testify was discretionary. 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 shall enjoy theright . . . to have the Assistance of Counsel for his defence." 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 be heard would be, in manycases, of little avail if it did not comprehend the right to be heard bycounsel.'") (internal citations omitted). That right is fully applicableto 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 Supreme Court hasconcluded that the assistance of counsel is among those "constitutionalrights so basic to a fair trial that their infraction can never betreated as harmless error." Chapman v. California, 386 U.S. 18, 23, 87S.Ct. 824, 17 L.Ed.2d 705 (1967). "When a defendant is deprived of thepresence and assistance of his attorney, either throughout the prosecutionor during a critical stage . . . reversal is automatic." Holloway v.Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)(citing Gideon, 372 U.S. at 335).

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 previously discussedwith Feole the pros and cons of testifying and that he had advised Feoleagainst testifying. Counsel further indicated that Feole initiallyacquiesced in his lawyer's advice and that the defense had rested on theprevious 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 shows that duringthe discussion with the trial judge concerning his proposed testimony,Feole indicated that he wished to testify concerning events leading up tohis prior conviction for usury and extortion, and to have his counselfurther cross-examine a prior witness as to those events. Tr. at 355. Thetrial judge explained to Feole that this testimony was irrelevant to thesolicitation of murder charges. Clearly, the refusal to allow irrelevanttestimony 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 20

The defendant then requested a new lawyer (i.e., one who wouldwillingly assist him in testifying), which request was denied. Id. at357-58. The state Supreme Court upheld the denial, stating that "[t]heright to counsel of one's choice is not unfettered or unlimited but mustbe balanced with the public's right to the efficient administration ofjustice." 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 pro se; or 3)forego the additional testimony and withdraw the motion to reopen. Any ofthese options would have avoided the bizarre scene of asking theDefendant 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 — has recognized thata defendant's right to counsel is not unlimited, but is subject to theorderly administration of justice. See United States v. 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 a criminal defendant to havecounsel of his or her choice "`must be weighed and balanced against anequally desirable public need for the efficient and effectiveadministration 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.2d at 1071. InMorris 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, broaddiscretion must be granted trial courts on matters of continuances."Here, Petitioner had been ably represented by counsel throughout theentire trial. Counsel had considered and rejected putting Feole on thestand, and could not endorse his effort to take the stand. Further,counsel was prepared to, and did, continue his representation throughfinal arguments. The state Supreme Court decision upholding the trialjudge'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.3d at 36(citing 221 F.3d 100). As the First Circuit observed in that case, aclose question almost always means that the state court decision was notan "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 to counsel.See Williams, 529 U.S. at 411 ("Under § 2254(d) (1) `s `unreasonableapplication' clause, then, a federal habeas court may not issue the writsimply because that court concludes in its independent judgment that therelevant state-court decision applied clearly established federal lawerroneously or incorrectly. Rather, that application must also beunreasonable."). This Court declines to find that 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 26In 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 § 2255 proceeding). By statute, acourt may in its discretion appoint counsel in a § 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) and18 U.S.C. § 3006A(g). Such an appointment is rare in a federal habeasproceeding, United States v. Mala, 7 F.3d 1058, 1063-64 (1st Cir. 1993),and is generally found to be unnecessary if a hearing is not required,the issues are straightforward, and the petitioner has demonstrated anunderstanding of the case and an ability to present his claimsPage 27coherently. See Blasi v. Attorney General of Pennsylvania,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 transcript of thepertinent trial proceedings — adequately presented the facts pertinent toPetitioner's claims of violation of his right to testify and right tocounsel. See Winsett v. Washington, 130 F.3d 269, 281 (7th Cir. 1997)(affirming denial of counsel in § 2254 proceeding where appointed counselwould add little to the analysis, particularly in light of thorough andcompeting 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 (noting Feole was notprejudiced by trial judge's restrictions, in view of "the overwhelmingevidence 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, whichpurports to seek relief from his conviction of usury and extortion. Thatpetition was assigned to Chief Judge Ernest C. Torres and has beendismissed. See id., Order Denying Petition for Writ of Habeas Corpusdated August 21, 2003.

2. This portion of the R&R focused on the trial judge's actions,rather than on the state Supreme Court's decision affirming thoseactions. However, because the R&R reached the same conclusion as thestate Supreme Court majority, the Court will construe the R&R as findingthat the state Supreme Court decision itself was not an unreasonableapplication of U.S. Supreme Court precedent on this issue.

3. In his pro se response Petitioner states without elaboration thathe "does not object to the states [sic] motion to dismiss at this time aslong as it is without prejudice." See Plaintiff's Response to R&R at 6.However, in view of Petitioner's overall response to the R&R, whichtotals more than 30 pages, including exhibits, this Court cannot concludefrom that single sentence that Petitioner desires to waive all objectionsto the R&R. Moreover, to dismiss "without prejudice" would make littlesense and would effectively invite the Petitioner to file a successivepetition. Thus, the Court will treat his filing as an objection.

4. Although it does not appear that Feole pursued any of the state lawpost-conviction remedies available to him under R.I. Gen Laws § 10-9.1-1,et seq., the Attorney General has not raised any issue as to exhaustionof state court remedies, nor does the R&R discuss the issue. Section2254(b)(1)(A) provides that an application for writ of habeas corpusshall not be granted unless "the applicant has exhausted the remediesavailable in the courts of the State"; or state post-conviction remediesare either unavailable or ineffective. The Court need not, however,address the exhaustion issue, since Feole's substantive claims here werepresented on his direct appeal to the state Supreme Court, and thisCourt, in any event, is free to deny all claims, even if unexhausted, onthe merits. See 28 U.S.C. § 2254(b)(2) ("An application for a writ ofhabeas corpus may be denied on the merits, notwithstanding the failure ofthe applicant to exhaust the remedies available in the courts of theState.").

5. In McCambridge, the First Circuit held that a state appellatecourt's finding that there was no Brady violation in the course ofdefendant's trial (resulting in his eventual conviction for manslaughter)did not constitute an "unreasonable application" of U.S. Supreme Courtprecedent. 303 F.3d at 37-43.

6. Although not expressly discussed in the Magistrate Judge'sR&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.2d at 1068(citing R.I. Sup.Ct. R. 16(a)). The violation of a state procedural rulemay constitute an "independent and adequate state grounds" so as to barfederal 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 independentstate grounds doctrine applies to bar federal habeas relief when a statecourt declined to address a prisoner's federal claims because theprisoner had failed to meet a state procedural requirement). Thus, thestate Supreme Court committed no constitutional error on this issue, asit never addressed the constitutional question.

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 (quotingArizona v. Fulminante, 499 U.S. 279, 309, 111 S.Ct. 1246, 1265, 113L.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 served with a copy ofthe magistrate judge's order, a party may serve and file objections tothe order; a party may not thereafter assign as error a defect in themagistrate judge's order to which objection was not timely made.");D.R.I. Local Rule 32. The Court instead construes the request as aseparate motion for reconsideration.

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