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UNITED STATES EX REL. JENKINS v. DOBUCKI

July 16, 1998

UNITED STATES OF AMERICA ex rel., WILLIE JENKINS, Petitioner,
v.
KENNETH DOBUCKI, Respondent.



The opinion of the court was delivered by: ASPEN

MEMORANDUM OPINION AND ORDER

 MARVIN E. ASPEN, Chief Judge:

 Presently before us is Willie Jenkins' pro se petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Jenkins contends that: 1) his waiver of the right to counsel at trial was not knowing and voluntary; 2) the trial court erred in failing to conduct a hearing to determine whether his use of epilepsy medications rendered him unfit to stand trial; and 3) his appellate counsel was ineffective in failing to argue that he was entitled to a fitness hearing. For the reasons set forth below, we deny the petition.

 I. Background

 The charges against Jenkins stemmed from a violent argument he had with his girlfriend on July 16, 1988. The conflict started in the apartment of Jenkins' brother and grew increasingly heated until finally Jenkins threw his girlfriend over a railing outside the third floor apartment and onto the second floor landing below. He then stomped on her chest repeatedly and dragged her down a flight of stairs by the back of her blouse. Shortly thereafter, police apprehended Jenkins near the scene.

 After a jury trial in the Circuit Court of Cook County, where he appeared pro se (with the assistance of standby counsel), Jenkins was convicted of attempted first degree murder. Before sentencing, the trial court noted that petitioner had previously received psychiatric treatment, and ordered a psychiatric examination to determine his fitness for sentencing. After a psychiatrist declared Jenkins fit for sentencing, the court sentenced him to 50 years imprisonment. The conviction and sentence were affirmed on appeal, and the Illinois Supreme Court denied Jenkins' Petition for Leave to Appeal. Jenkins exhausted his post-conviction remedies without obtaining any relief, and then filed the instant petition.

 II. Procedural Default

 Before a federal court will entertain a petition for a writ of habeas corpus, the petitioner must (1) exhaust all remedies available in state courts and (2) fairly present any federal claims in state court. See Bocian v. Godinez, 101 F.3d 465, 468 (7th Cir. 1996) (citing § 2254(b)(1)(A); Picard v. Connor, 404 U.S. 270, 275, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971); and Verdin v. O'Leary, 972 F.2d 1467, 1472-73 (7th Cir. 1992)). Even assuming arguendo that Jenkins fairly presented his claims to the Illinois courts (or could show cause and prejudice for his failure to do so), we find his claims to be without merit, as explained below.

 III. Discussion

 A. Waiver of the Right to Counsel

 Jenkins' first argument is that his waiver of his right to counsel at trial was invalid because it was not knowing and voluntary. *fn1" A criminal defendant, of course, has the right to conduct his own defense. See Faretta v. California, 422 U.S. 806, 819, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975). Before a trial court lets a defendant exercise this right, however, it must ensure that the defendant's waiver of his right to counsel was knowing and voluntary. See id. at 835; Johnson v. Zerbst, 304 U.S. 458, 464-465, 82 L. Ed. 1461, 58 S. Ct. 1019 (1938); United States v. Moya-Gomez, 860 F.2d 706, 731 (7th Cir. 1988). A trial court's finding that a waiver has occurred is entitled to a presumption of correctness. See 28 U.S.C. § 2254(e)(1); Cain v. Peters, 972 F.2d 748, 749-50 (7th Cir. 1992); Lewis v. Huch, 964 F.2d 670, 674-75 (7th Cir. 1992).

 The Supreme Court has not articulated a precise test for determining if a defendant waived counsel knowingly and voluntarily. Rather, we must determine whether "the record as a whole demonstrates that the defendant knowingly and intelligently waived his right to counsel." Moya-Gomez, 860 F.2d at 733. There are several factors to consider during this inquiry. First, we must see if the trial court engaged in a meaningful discussion with the defendant to ascertain whether he understood the significance of his decision to waive counsel. See Von Moltke v. Gillies, 332 U.S. 708, 724, 92 L. Ed. 309, 68 S. Ct. 316 (1948) (plurality opinion) (colloquy should appraise the defendant of the "nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof"); Moya-Gomez, 860 F.2d at 733 (trial court must "conduct a formal inquiry in which the defendant is informed fully of the risks [of] proceeding pro se and explicitly advised against self-representation"); United States v. Mitchell, 788 F.2d 1232, 1235-36 & n.3 (7th Cir. 1986). A court "need not give 'a hypothetical lecture on criminal law,'" Mitchell, 788 F.2d at 1235 (quoting Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969)), but "should question the defendant to demonstrate the difficulties he would encounter in acting as his own counsel." Moya-Gomez, 860 F.2d at 732. Second, we must consider whether other evidence in the record establishes that the defendant in fact understood the dangers and disadvantages of self-representation. See id. at 736. Third, we must inquire whether the defendant's background and experience indicate that he did or did not understand the significance of waiving counsel. See id.

 Having examined the trial record with these factors in mind, we have no doubt that Jenkins' waiver of counsel was knowing and voluntary. First, the trial judge did conduct the kind of formal inquiry envisioned by Von Moltke, Moya-Gomez, and Mitchell. The judge engaged in a substantial conversation with Jenkins about his constitutional right to counsel and advised him against proceeding pro se. See Pet'r Answer Br. Ex. A at 4-12 (transcript excerpt). During this conversation the judge informed Jenkins that the charges against him were serious and that proceeding without counsel was risky. See id. at 7. (Jenkins made light of this line of inquiry, stating to the judge, "I am well familiar with the phrase, 'Only a fool has himself for a lawyer.'" Id. at 4.) The judge also inquired into Jenkins' educational background, and asked if he was familiar with the law and rules of evidence, to which Jenkins replied that he was. See id. at 9-11. The judge even advised Jenkins to think about his decision to represent himself over the weekend, an invitation he declined. See id. at 7. At the end of the discussion, the judge took note of the fact that Jenkins appeared to be in control of his mental faculties (a conclusion amply supported by Jenkins' coherent answers to the questions posed to him), and found that Jenkins' waiver of counsel was "knowing and intelligent." Id. at 12. This colloquy more than satisfies the constitutional minimum.

 Furthermore, to the extent the rest of the trial record sheds any light on the question, it appears that Jenkins understood the dangers and disadvantages of self-representation. Most importantly, Jenkins had previously been convicted of two serious crimes, so he was no stranger to the criminal process. See Pet'r Answer Br. Ex. B. at 18. He had enough education--two years of college and a business degree--to understand the significance of legal representation. And at the very beginning of Jenkins' opening argument he explained to the jury that he had chosen to defend himself even though he was not trained in the law because he felt the public defender was biased against him. See Tr. at 192. We think the overall picture that emerges from the trial is that Jenkins understood the disadvantages of proceeding pro se when he made the decision to ...


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