The great majority of convictions occurs in cases in which the defendant was represented by counsel.  Generally speaking, it is only in more minor cases that the court will take a waiver of the right to counsel, and allow the defendant to represent him- or herself.  It is usually more difficult to set aside a conviction in a case in which a defendant was in propria personam, since no claims of ineffective assistance of counsel can be raised, so long as the court adequately described for the defendant the dangers and disadvantages of self-representation.  To take a valid waiver of counsel, the court must also adequately inform the defendant of the penalties that may be inflicted upon conviction.[24]

 

            The United States Supreme Court has granted certiorari to consider the question whether an uncounseled plea is defective (for lack of a valid waiver of counsel) if tendered in the absence of a warning from the trial court of the right to counsel in plea proceedings and the dangers of self-representation in that context.[25]  At least 23 state and federal jurisdictions recognize that such a warning is required.  Georgia, Kentucky, Maryland, and North Dakota have not explicitly delineated the minimum requirement for ensuring a knowing and valid waiver of counsel in the context of a plea proceeding. The Supreme Court of Georgia has not announced a specific minimum inquiry that would ensure a knowing, voluntary and intelligent waiver.[26]  Georgia, however, has unambiguously held that a guilty plea colloquy is not sufficient to establish the validity of the defendant’s waiver.[27]  In Larry v. Hicks,[28] the defendant pled guilty to several charges. The trial court engaged in a plea colloquy with the defendant, reviewing the rights available if the defendant elected a jury trial. The court stated, “You would have the right to the assistance of an attorney throughout the trial. If you couldn’t afford to employ one, I would appoint one to assist you.  Do you understand those rights?” Larry stated he did understand, and the court did not otherwise mention the assistance of counsel. In this context, the Georgia Supreme Court held that the trial court had failed to establish a valid waiver of counsel under the Sixth Amendment. The court did not, however, define the minimum inquiry which would be required.[29]

[24] United States v. Erskine, 355 F.3d 1161 (9th Cir. January 21, 2004) (waiver of right to counsel held invalid, since court failed to advise defendant of the possible penalties he faced, and the record shows that he did not understand them when he chose to represent himself).

[25] Iowa v. Tovar, 156 L.Ed.2d 703, 124 S. Ct. 44, 2003 U.S. LEXIS 5432, 72 U.S.L.W. 3234 (U.S. 2003); see State v. Tovar, 656 N.W.2d 112 (Iowa 2003).

[26] See Larry v. Hicks, 491 S.E.2d 373 (Ga. 1997).

[27] Id. at 374-375, n.13.

[28] Larry v. Hicks, 491 S.E.2d 373 (Ga. 1997).

[29] Id. at 374-375.

GROUNDS - RIGHT TO COUNSEL - INVALID WAIVER - NO NEED WARN OF DANGERS
Iowa v. Tovar, 124 S.Ct. 1379 (March 8, 2004) (trial court must inform unrepresented defendants of nature charges against him, right to counsel regarding plea, and range of allowable punishments for plea to be "knowing and intelligent,"; trial court does not need to inform accused that viable defense will be overlooked, or that he will lose opportunity to obtain independent opinion on whether it is wise to plead guilty).
http://laws.lp.findlaw.com/us/000/02-1541.html

Fifth Circuit

POST CON RELIEF " GROUNDS " RIGHT TO COUNSEL " INVALID WAIVER OF COUNSEL
United States v. Pino Gonzalez, ___ F.3d ___, 2011 WL 911490 (5th Cir. Mar. 17, 2011) (district court properly considered South Carolina prior conviction as part of criminal history score, even though the defendant was not represented by counsel, because in challenging the legal validity of his waiver of the right to counsel, the defendant fail[ed] to provide any evidence or make an offer of proof that he did not know he had a right to counsel at trial or to appointed counsel and failed to sustain his South Carolina post-conviction burden of proof by a preponderance of the evidence), quoting Mallard v. Cain, 515 F.3d 379, 382 (5th Cir. 2008).

POST CON RELIEF " GROUNDS " RIGHT TO COUNSEL " INVALID WAIVER OF COUNSEL " FEDERAL COURT USES STATE BURDEN OF PROOF IN COLLATERAL ATTACK ON UNCOUNSELED CONVICTION
United States v. Pino Gonzalez, ___ F.3d ___, 2011 WL 911490 (5th Cir. Mar. 17, 2011) (We look to state law for the appropriate burden of proof in a collateral attack on an uncounseled conviction.), citing Mallard v. Cain, 515 F.3d 379, 382 (5th Cir. 2008), citing Iowa v. Tovar, 541 U.S. 77, 92, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).

POST CON RELIEF " SOUTH CAROLINA " BURDEN OF PROOF OF CONSTITUTIONAL CLAIM IN POST-CONVICTION PROCEEDINGS
United States v. Pino Gonzalez, ___ F.3d ___, 2011 WL 911490 (5th Cir. Mar. 17, 2011) (Under the law of South Carolina, where Gonzalez's prior conviction was obtained, it is the defendant's burden to prove by a preponderance of the evidence that he did not competently and intelligently waive his right to the assistance of counsel. United States v. Guerrero-Robledo, 565 F.3d 940, 944 (5th Cir.2009); State v. Payne, 332 S.C. 266, 504 S.E.2d 335, 338 (S.C.Ct.App.1998). The South Carolina court in Payne relied on that state's presumption of regularity given to final judgments to reach this conclusion. 504 S.E.2d at 338. That presumption applies equally here. See id. at 336, 338 (applying the presumption where the available portion of the transcript was inconclusive as to whether the defendant's constitutional rights had been violated).).

POST CON RELIEF - BURDEN OF PROOF - WAIVER OF COUNSEL - BURDEN FALLS ON DEFENDANT TO REBUT PRESUMPTION OF VALID WAIVER
United States v. Guerrero-Robledo, 565 F.3d 940 (5th Cir. Apr. 20, 2009) (when a defendant collaterally attacks a prior conviction on the ground that he was not represented by counsel, the defendant bears the burden of rebutting the presumption that he validly waived his right to counsel).

Ninth Circuit

POST CON RELIEF " GROUNDS " RIGHT TO COUNSEL " SEPARATION
United States v. Escamilla-Rojas, __ F.3d __ (9th Cir. May 12, 2011) (temporary separation from counsel, during period court was giving advisements to a large group regarding rights and voluntariness of plea, did not equate with denial of right to counsel).

POST CON RELIEF " GROUNDS " RIGHT TO COUNSEL " RIGHT TO SELF-REPRESENTATION
McCormick v. Adams, 621 F.3d 970 (9th Cir. Sept. 3, 2010) (holding waiver of right to self-representation knowing and voluntary, rejecting claims that trial court led him to believe he could revoke his Faretta waiver at any time, and that he relied on this promise in waiving his right to counsel; and that he made a mid-trial request for counsel that was wrongly denied by the trial court).

POST CON RELIEF - GROUNDS - COUNSEL - INVALID WAIVER OF COUNSEL - FAILURE TO ADVISE DEFENDANT AND ENSURE UNDERSTANDING OF NATURE OF OFFENSE RENDER WAIVERS INVALID
United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions reversed on grounds that waiver of right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated, when he was allowed to proceed pro se after district court failed to inform him of the nature of the conspiracy charge, or ensure he understood the charge or that this charge is "a particularly complex and confusing allegation to defend against."), following United States v. Dujanovic, 486 F.2d 182, 186 (9th Cir.1973) ("We cannot visualize a less minimal requirement than the District Court shall not grant a request to waive counsel ... without ... determining on the record that the demand to waive counsel ... is competently and intelligently made with understanding of the nature of the charge ....").

POST CON RELIEF - GROUNDS - COUNSEL - INVALID WAIVER OF COUNSEL - ERRONEOUSLY OVERSTATING DIRECT PENAL CONSEQUENCES OF CONVICTION RENDERS WAIVER INVALID SINCE ERROR REQUIRES AUTOMATIC REVERSAL WITHOUT HARMLESS ERROR ANALYSIS
United States v. Forrester, ___ F.3d ___, ___ (9th Cir. July 6, 2007) (federal convictions reversed on grounds that waiver of right to counsel was not knowing and intelligent, and that the Sixth Amendment was violated, when he was allowed to proceed pro se after district court failed accurately to "describe the "possible penalties" faced by Forrester. Id. The court told him that he faced 10 years to life in prison, whereas he actually faced the materially different sentence range of zero to 20 years in prison."; even though court erroneously overstated defendant's exposure, automatic reversal was required because court cannot engage in harmless error analysis for this type of error), following United States v. Erskine, 355 F.3d 1161, 1167 (9th Cir. 2004) ("[T]he failure to meet the requirements for a valid Faretta waiver constitutes per se prejudicial error, and the harmless error standard is inapplicable."); United States v. Mohawk, 20 F.3d 1480, 1484 (9th Cir. 1994) (invalid Faretta waiver "requires automatic reversal of a defendant's conviction"); United States v. Balough, 820 F.2d 1485, 1490 (9th Cir. 1987) ; cf. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) ("Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to harmless error analysis."); cf. United States v. Keen, 96 F.3d 425, 429-30 (9th Cir.1996) ("Regrettably, given the overwhelming evidence of Keen's guilt and the inconvenience a retrial would impose ... this discussion appears insufficient.... [He] is entitled to a reversal and an opportunity to make an informed and knowing choice.").

POST CON RELIEF - GROUNDS - COUNSEL - SELF-REPRESENTATION COUNSEL - SELF-REPRESENTATION - DENIAL BASED ON LACK OF LEGAL KNOWLEDGE
Hirschfield v. Payne, 420 F.3d 922 (9th Cir. Aug. 22, 2005) (state court properly ruled that first Faretta motion was for purposes of delay, but second motion (made after case had to be delayed due to other reasons), which was denied by another judge on the basis that the defendant did not have sufficient legal knowledge to represent himself, was erroneous; because the appellate court did not address the second motion separately, the federal panel reviewed the trial court's oral decision, and found it contrary to clearly established federal law).

Other

POST CON RELIEF " GROUNDS " RIGHT TO COUNSEL " WAIVER " PRACTICE ADVISORY " HOW TO ESTABLISH AN INVALID WAIVER
To sustain a claim that a court took an invalid waiver of the right to counsel, or the right to appointed counsel, counsel must establish certain facts. First, it is essential to offer evidence that the defendant was unaware of the right to counsel, or the right to appointed counsel, as to which he is claiming the waiver was constitutionally invalid. See United States v. Pino Gonzalez, ___ F.3d ___, 2011 WL 911490 (5th Cir. Mar. 17, 2011), and cases cited. Second, the test is very fact-specific. The Supreme Court has held that it depends on whether the waiver of the right to counsel was knowing, voluntary, and intelligent: We have described a waiver of counsel as intelligent when the defendant knows what he is doing and his choice is made with eyes open. We have not, however, prescribed any formula or script to be read to a defendant who states that he elects to proceed without counsel. The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding. Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004) (citations omitted). Therefore, counsel must prove the defendant lacked sophistication, the charge is complex, and elaborate the difficulties of representing himself at the particular stage of the proceeding. In addition, counsel should offer evidence of how little relevant prior experience the defendant has had with the criminal justice system. We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights .... Parke v. Raley, 506 U.S. 20, 37, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (We have previously treated evidence of a defendant's prior experience with the criminal justice system as relevant to the question whether he knowingly waived constitutional rights ....). Finally, courts are suspicious of the veracity of the defendant in the post-conviction context. E.g., In re Alvernaz, 2 Cal.4th 924, 8 Cal.Rptr.2d 713 (1992)(disbelieving defendants uncorroborated assertions). Counsel must therefore take pains to corroborate every possible aspect of the defendants declaration. Many of these same considerations apply to claims of invalid waivers of other constitutional rights as well.

CAL POST CON " POST CON RELIEF " GROUNDS " LACK OF ADVICE ON ACTUAL IMMIGRATION CONSEQUENCES OF PLEA BY UNREPRESENTED DEFENDANT " POTENTIAL GROUNDS TO VACATE THE CONVICTION
The narrow holding of Padilla does not apply where a defendant represented him- or herself in the criminal case, because there is no defense counsel in the case who is obligated affirmatively to give accurate advice concerning the immigration consequences of the plea. Where the court takes a waiver of the right to (appointed) counsel, it is obligated to advise the defendant concerning the dangers and disadvantages of self-representation. After Padilla, one of those dangers is that the court is not obligated to give the defendant accurate immigration advice, whereas counsel, appointed or not, is obligated to do so under Padilla. Post-conviction counsel could argue that the court is therefore now required to warn a defendant who waives counsel of the disadvantage of waiving counsel caused by losing the right to accurate advice concerning the immigration consequences of the plea. Cf. Iowa v. Tovar,541 U.S. 77, 81, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). In California state courts even prior to Padilla, and in the Ninth Circuit after Padilla, the courts have held that a defendants ignorance concerning the actual immigration consequences of a plea can constitute good cause to withdraw the plea. See People v. Superior Court (Giron) (1974) 11 Cal.3d 793, 114 Cal.Rptr. 596; United States v. Bonilla, 637 F.3d 980, 986 (9th Cir. 2011) (holding that defense counsel's inadequate legal advice regarding the immigration consequences of a guilty plea constituted a "fair and just" reason for withdrawing the plea under Rule 11(d)(2)(B) of the Federal Rules of Criminal Procedure). The traditional rule is that the court has no constitutional obligation to give any advice to the defendant concerning the adverse immigration consequences (even the possible ones) at the time of plea, only the direct penal consequences. Some appellants have raised claims on appeal that after Padilla, these consequences have now become direct consequences, but the courts have so far uniformly rejected this claim. Padilla itself does not say whether deportation consequences are direct or collateral, since it was irrelevant to the ineffective assistance of counsel claim before the court. It is nonetheless possible to raise this claim still, arguing that Padillas holding that deportation is a penalty changed this rule. The correct view, however, is that even after Padilla, immigration consequences are not direct penal consequences because they are not imposed by the criminal court. Padilla does not change this. It simply says that even if deportation consequences are collateral, defense counsel still has the duty to advise the defendant accurately concerning them. In my opinion, it is a lost cause to try to label immigration consequences direct and therefore impose the duty on the court to advise the defendant correctly concerning them, as Padilla requires of defense counsel. This is because the court has no duty to investigate the defendants immigration status, and has no duty to do the legal research necessary to identify the exact immigration consequences that will befall the defendant if he or she takes this plea. It is unreasonable to impose these duties of counsel on the court, and the court in some jurisdictions, like California, is forbidden to inquire as to the defendants immigration consequences. See California Penal Code 1016.5(d)(last sentence). The most that can reasonably be expected of the court is to make sure counsel performs the duty dictated by Padilla, and to make sure the defendant knows that by waiving counsel, s/he is waiving the right to have this information concerning the actual (as opposed to merely potential) immigration consequences of the plea.

POST-CON RELIEF " RIGHT TO COUNSEL " UNCOUNSELLED CONVICTIONS ARE UNRELIABLE
As the Supreme Court acknowledged with unusual candor in Alabama v. Shelton, a conviction simply is not reliable unless the defendant had access to the guiding hand of counsel and the states case (if not pleaded out) withstood the crucible of meaningful adversarial testing. Alabama v. Shelton, 68 535 U.S. 654, 665 (2002) (quoting Argersinger v. Hamlin, 407 U.S. 25, 40 (1972)).