MAGILL, Circuit Judge.
Crispus Nix, the warden of the Iowa State Penitentiary, appeals the district court's grant of habeas relief to Charles O. Reese. The district court held that the state court violated Reese's constitutional right to self-representation, and as a result he was entitled to relief. Nix argues that the district court erred when it refused to credit the state appellate court finding that Reese did not truly request self-representation. We agree and reverse the district court's grant of habeas relief.
I.
Reese was convicted of first degree murder in 1976. The Iowa Supreme Court reversed this conviction and remanded for retrial in 1977 because the trial court had failed to instruct the jury on the lesser included offense of second degree murder. State v. Reese, 259 N.W.2d 771, 777-79 (Iowa 1977). During this successful appeal, Reese was represented by F.J. Kraschel, a court-appointed criminal law attorney. Kraschel also served as Reese's attorney for his second trial, which was held in August 1978. Before his second trial, Reese expressed dissatisfaction with Kraschel's representation and requested new counsel. On July 10, 1978, the trial court held a hearing to consider Reese's request.
Tr. at 87-88, 97-103. Trial commenced on August 8 with Kraschel as Reese's counsel. The jury found Reese guilty of first degree murder. This time, the Iowa Supreme Court affirmed the conviction. State v. Reese, 301 N.W.2d 693 (Iowa 1981). In a postconviction proceeding, Reese claimed that the trial court violated his right to self-representation when it ignored his statement, "Well, I don't want no counsel then." Tr. at 100. The Iowa Court of Appeals rejected this claim, concluding that Reese's statement was not an assertion of his right to self-representation, but rather
II.
Nix first argues that Reese defaulted on his claim of self-representation because he failed to raise the issue on direct appeal. Nix also argues the district court erred in granting habeas relief because its decision ignored the state court's finding that Reese's statement was an expression of frustration and not a true request for self-representation. Reese argues that Nix waived the procedural default defense because he failed to include the defense in his answer to Reese's petition for habeas relief. Reese also argues that the district court was not required to adopt the conclusion of the state court on the self-representation issue because the state court's conclusion was based on the application of law to facts, not just on historical facts.
As a threshold matter, we reject Nix' first argument that Reese was procedurally barred from raising the self-representation issue in his federal habeas petition. The district court properly held that Nix waived his procedural default defense by failing to affirmatively assert it in his answer to Reese's petition for habeas relief. Therefore, we proceed to Nix' second argument.
The primary question in this case is whether the trial court violated Reese's right to self-representation. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court held that a state court violated a criminal defendant's constitutional right to self-representation when it forced the defendant to accept a state-appointed attorney after the defendant "clearly and unequivocally" declared that he wanted to represent himself. Id. at 835-36, 95 S.Ct. at 2541. The Court stated that since a defendant waives his constitutional right to counsel when he exercises his right to self-representation, a defendant must "knowingly and intelligently" choose self-representation. Id. at 835, 95 S.Ct. at 2541. To assure such a choice, the Court stated that a defendant should "be made aware of the dangers and disadvantages of self-representation so that the record will establish `he knows what he is doing and his choice is made with eyes open.'" Id. (citation omitted). The Court concluded that a violation of the right to self-representation requires reversal of the conviction. Id. at 836, 95 S.Ct. at 2541; see also McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 950 n. 8, 79 L.Ed.2d 122 (1984) (denial of right to self-representation not subject to harmless error analysis).
Appellate courts have required more than an equivocal request for self-representation before they engage in a full-blown Faretta inquiry. See Marshall v. Dugger, 925 F.2d 374 (11th Cir.1991); United States v. Treff, 924 F.2d 975, 978-79 (10th Cir.1991); Jackson v. Ylst, 921 F.2d 882, 888-89 (9th Cir.1990). The tension created by the mutual exclusivity of the right to counsel and the right to self-representation places a trial court in a precarious position. If it grants a request for self-representation, the defendant can argue on appeal that she did not knowingly and intelligently waive her right to counsel. On the other hand, if a trial court denies a request for self-representation, the defendant can argue on appeal that she was denied her Faretta right. Since the Eighth Circuit has not addressed this issue, we look to other circuits for guidance.
Both the Ninth and Tenth Circuits require that a defendant make an "unequivocal" demand for self-representation before invoking her Faretta right. See Jackson, 921 F.2d at 888-89; Treff, 924 F.2d at 978-79. In Jackson, the defendant requested substitute counsel in a motion for a new trial. After the trial court denied his request for new counsel, the defendant stated:
Id. at 888-89. The trial court did not grant this request. On appeal, the defendant claimed that the trial court had violated his right to self-representation. The Ninth Circuit concluded that: "the record demonstrates that Jackson's request for self-representation was an impulsive response to the trial court's denial of his request for substitute counsel." Id. at 888. The Jackson court also noted that the defendant did not object to the presence of counsel at any later date, nor did he renew his request to proceed pro se. Id. at 889. Similarly, Reese's statement, "Well, I don't want no counsel then," came only after his motion for substitute counsel was denied. Just as in Jackson, Reese's response seems to be an impulsive response to the trial court's denial of his request for new counsel. Furthermore, Reese never renewed his request or his objection to Kraschel's performance. The ambiguity created by the context of Reese's statement makes it impossible for us to conclude that he clearly and unequivocally invoked his right to self-representation. Therefore, applying the Ninth Circuit test, we conclude that since Reese's Faretta right was never invoked, it was never improperly denied.
The Eleventh Circuit uses a reasonable person test to determine whether a criminal defendant has clearly and unequivocally invoked his right to self-representation. Under this approach a criminal defendant must "do no more than state his request [to proceed pro se], either orally or in writing, unambiguously to the court so that no reasonable person can say the request was not made." Dorman v. Wainwright, 798 F.2d 1358, 1366 (11th Cir.1986) (citation omitted) (emphasis added), quoted in Stano v. Dugger, 921 F.2d 1125, 1143 (11th Cir.1991) (en banc). In Marshall, the Eleventh Circuit reiterated that a request to proceed pro se invokes the right to self-representation only when a reasonable person would find that the request was a clear and unequivocal invocation of the right to self-representation. Marshall, 925 F.2d at 374. Applying this reasonable person standard to Reese's statement, we conclude that Reese did not clearly and unequivocally invoke his right to self-representation. Reese stated, "Well, I don't want no counsel then" after the trial court denied his motion for substitute counsel. Given the context of the entire colloquy between Reese and the trial court, a reasonable person could have concluded that Reese was merely expressing his frustration and not clearly invoking his right to self-representation. Furthermore, the state appellate court reviewed Reese's claim and rejected his argument that this isolated, off-hand statement constituted an invocation of his right to self-representation. See Reese v. State, 391 N.W.2d 719, 724 (Iowa App.1986).
Reese argues that the trial court's response to Reese's statement indicates that the trial court knew that he was invoking his right to self-representation. The trial court stated:
Tr. at 101. While the trial court's statement, "You're going to have counsel," does seem to indicate a situation of forced representation, the context of this statement reveals that the trial court considered the issue to be who should represent Reese. The trial court explicitly told Reese that he could ignore his counsel, but that the trial court was going to insist that counsel be present during the trial. Reese's appointed attorneys would then be acting as standby counsel, which does not violate a defendant's
In its order granting Reese's habeas petition, the district court stated that Reese made the request to proceed pro se twice, but on only that one occasion. It reasoned that Reese's failure to make repeated requests did not invalidate his request because "once `the trial court has unmistakably indicated its intention not to recognize the claimed right [to proceed pro se] ... [the defendant's] subsequent apparent acquiescence can only in fairness be taken as a concession of his inability successfully to act on the right asserted.'" Reese v. Nix, No. 86-636A, slip op. at 12 (S.D.Iowa Oct. 18, 1990) (citation omitted). We disagree with the district court. First, as we have already shown, the trial court did not unmistakably indicate that it would not allow Reese to proceed pro se. It merely stated that it would not appoint new counsel and that appointed counsel would be in the courtroom during the trial. Second, Reese did not make two requests for self-representation. After Reese stated, "Well, I don't want no counsel then," the trial court responded, "Pardon?" A plain reading of this response leads us to conclude that the trial court did not hear Reese's statement. Apparently Reese arrived at the same conclusion, since he responded by repeating his statement. Under these circumstances, repeating a statement does not constitute a separate request.
Since Reese did not clearly and unequivocally invoke his right to self-representation, the trial court did not err when it failed to allow him to proceed pro se.
III.
For the foregoing reasons, we reverse the district court's grant of habeas relief.
ARNOLD, Circuit Judge, dissenting.
I respectfully dissent. I would affirm the judgment of the District Court for the reasons persuasively stated in that Court's opinion. In my view, petitioner made a clear, unequivocal, and unmistakable request to be allowed to proceed as his own lawyer. The trial court just as clearly, unequivocally, and unmistakably rejected his request. This was an error of constitutional magnitude. The finding of the Iowa Court of Appeals that no real request for self-representation was made lacks fair support in the record. If words mean anything, this must be the result in this case.
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