The conviction may also be held invalid if the defendant was denied his or her constitutional right to proceed in pro per in the proceedings which led to the prior conviction.[59] 

 

The guilty plea may be deemed involuntary where the court erroneously refused to allow the defendant to represent him- or herself, and, as a result, the defendant was forced to plead guilty rather than suffer an unconstitutional trial.  To prevail on such a claim, the defendant must show that the court violated his or her Sixth Amendment right to self-representation, as discussed above, and that the limited choice of proceeding to trial rather than pleading guilty rendered the plea involuntary because the court’s decision to deny self-representation placed “unreasonable constraints” on the decision whether to plead guilty.[60]

 

            The right to self-representation is based on clearly established federal law, for federal habeas corpus purposes.[61]  A trial court cannot justify denial of the right to self-representation on its conclusion that self-representation was not in petitioner’s best interest. The finding by the state reviewing courts that the denial of the Faretta motion was justified by petitioner’s obstructionist conduct was not supported by the record, which showed that petitioner’s “misconduct” occurred only after his motion had been denied.  Even if the state reviewing courts had based their decisions, as respondent contended, on petitioner’s lack of access to the law library, this would not be a sufficient basis to justify denying the self-representation motion. “An incarcerated criminal defendant who chooses to represent himself has a constitutional right to access to ‘law books . .  . or other tools’ to assist him in preparing a defense.”[62]  Similarly, the court cannot lawfully deny self-representation based on its conclusion that the defendant did not possess sufficient independent knowledge of the charges. The trial court had a duty, which it failed to fulfill, to provide the defendant with the information necessary for him to make a knowing and intelligent request, i.e., (1) the nature of the charges against him, (2) the possible penalties, and (3) the dangers and disadvantages of self-representation.[63]

 

[59] United States v. Hernandez, 203 F.3d 614 (9th Cir. February 11, 2000) (denial of defendant’s request for self-representation violated Sixth Amendment and rendered guilty plea involuntary); Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997); cf. People v. Marshall, 15 Cal.4th 1, 20-27 (1997).  But see United States v. Walters, 309 F.3d 589 (9th Cir. October 28, 2002) (convictions on two counts of conspiracy to possess with intent to distribute, and attempted possession of cocaine, affirmed where erroneous denial of defendant’s pro hac vice motion was harmless); Avila v. Roe, 298 F.3d 750 (9th Cir. July 31, 2002) (criminal defendant’s request to represent himself must be analyzed as to dilatory intent based on totality of the circumstances, and effect that granting the motion would have had on proceedings).

[60] United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000) (holding guilty plea involuntary where court violated petitioner’s Sixth Amendment right to proceed pro se, and thus, forced him into pleading guilty or suffering trial with unwanted counsel).

[61] Bribiesca v. Galaza, 215 F.3d 1015 (9th Cir. 2000) (denial of right to self-representation was contrary to clearly established federal law, as set forth by the Supreme Court in Faretta and McKaskle).

[62] Ibid., citing Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985).

[63] United States v. Hernandez, 203 F.3d 614 (9th Cir. 2000) (defendant’s Sixth Amendment rights were violated where he made a timely request for self-representation, which was not intended to delay proceedings, and was unequivocal, (even though conditional, i.e., if the court will not appoint a different attorney then defendant will waive counsel).

Ninth Circuit

POST CON RELIEF - GROUNDS - RIGHT TO COUNSEL - RIGHT TO SELF-REPRESENTATION
United States v. Farias, 618 F.3d 1049 (9th Cir. Aug. 20, 2010) (federal conviction for attempted entry after deportation is reversed for denial of defendants Sixth Amendment right to self-representation).

Tenth Circuit

POST CON RELIEF"GROUNDS"RIGHT TO SELF-REPRESENTATION
United States v. Loya-Rodriguez, 672 F.3d 849 (10th Cir. Feb. 22, 2012) (affirming conviction of illegal reentry, because defendant failed to make a clear and unequivocal request to represent himself at trial, but reversing sentence and ordering fresh sentence hearing, because he did clearly make such a request to represent himself at sentencing).