The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge
This matter comes before the Court on Petitioner Orville Foutch's Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody (d/e 1) (Petition). In April 2004, Foutch was convicted following a jury trial in the Circuit Court of Adams County, Illinois, of robbery. He was sentenced in July 2004, to twenty years imprisonment.*fn1 Foutch asks the Court to set aside his conviction, asserting that he was denied his Constitutional right to self-representation at trial. For the reasons set forth below, the Petition is denied.
On November 19, 2003, Foutch was charged in a two-count Information with robbery of a Walgreens Drug Store (Count 1) and theft from the person of the Walgreens' cashier (Count 2). Answer (d/e 6), Ex. A. On January 2, 2004, Foutch entered into a negotiated plea, under which Foutch would plead guilty to Count 2, with a sentenced capped at seven years imprisonment. Under the agreement, the State would dismiss Count 1. However, at the sentencing hearing on February 20, 2004, the state court judge rejected the negotiated plea, noting that Foutch had "one of the worst, if not the worst, felony record of a 31-year-old" that the Court had seen. Answer, Ex. C, Transcript of Proceedings held February 20, 2004, p. 6. The Court explained that Foutch could persist in his plea, without the seven year negotiated sentencing cap, or he could withdraw his guilty plea. The Court informed Foutch that if he withdrew his plea, the case would be assigned to a different judge for further proceedings.
Foutch, who was represented by the Adams County Public Defender, asked the Court to continue the matter to allow him to retain counsel. The judge informed Foutch that defense counsel had "more than adequately represented [him]." Answer, Ex. C, Transcript of Proceedings held February 20, 2004, p. 8. The Court further informed Foutch that, given the age of the case, he would not allow an extended continuance. The Court continued the matter until February 24, 2004, and again informed Foutch that defense counsel had "done an exceptional job." Id., p. 10. Foutch complained to the Court that none of his witnesses had been called and none of his alibis had been verified. The Court responded by pointing out that Foutch had given a statement confessing to the crime and advising Foutch to consult with defense counsel regarding his options.
At a hearing on February 24, 2004, the Court informed Foutch that, if he persisted in his plea of guilty, the most he could receive would be ten years in the Department of Corrections, but if he was convicted following a trial, he could be sentenced to up to thirty years in prison. Foutch, nevertheless, withdrew his guilty plea. Answer, Ex. D, Transcript of Proceedings held February 24, 2004, p. 4. Foutch informed the Court that he believed a "conflict of interest" existed between himself and his attorney and that he did not think that he had been represented properly. Id., p. 3-4. The Court asked defense counsel whether a conflict existed that would prevent him from continuing to represent Foutch. Defense counsel replied that Foutch "believes he wants a new attorney." Id., p. 5. The judge asked Foutch whether he was in a position to retain an attorney. Foutch replied as follows: "Currently I am not, sir, but, I mean, if I have to represent myself on the case, it seems as though I would have a better opportunity, a better chance at fighting the case. I haven't even been seen by anybody, nothing." Id., p. 5-6.
The following exchange then occurred: THE COURT: The only thing that would be more foolish than what you are doing today would be to represent yourself. That would be more foolish, but what you are doing today is foolish, and I want you to understand, is a foolish move on your part, but that's your right. You have a right to do that. I'm out of the case and I can say what I think, but I think what you have done is a terrible mistake on your part. You have made the choice, and it's an informed decision, and you have had several days to think about it. If that's what you want, you can do that. THE DEFENDANT: Are you thinking I should cop out to something I didn't do?
THE COURT: I am not saying any such thing, Mr. Foutch. I'm saying that the evidence against you is rather substantial, first of all; and second of all, more importantly, if you represent yourself, you will have a fool for a client. You have heard that old saying. Well, that's the truth. But I can't tell you what to do. If that's what you want, you file a handwritten motion, give it to the Sheriff's Department, and ask them to file it with the Clerk of the Court and bring the case back before the new judge, so some new judge with a fresh view of the case will decide whether or not you should get a new attorney. But you should do that right away, and if the motion is granted, that's what will happen. . . .
Id., p. 6-7. Foutch continued to insist that he had not received proper representation. Id., p. 8. The Court stated as follows: "What I am telling you, sir, and you are too foolish to understand, is you have gotten excellent representation. So good is the representation that you've gotten that he got a plea to the case to get you out of the thing for 7 years, which I will not agree to it. It was so good -- it is so good that the court won't accept it." Id. The Court concluded by stating "We've had the discussion. You write out your motion asking for the different attorney and that will be brought before the judge. I'm through having any discussion on the thing." Id. The matter was placed on the April 2004, jury docket.
Foutch filed a pro se Motion to Dismiss Counsel on April 1, 2004. Answer, Ex. E. Foutch asserted that defense counsel had pressured and threatened him to take a plea, stating that if Foutch did not accept an offer, he would "surely receive the maximum penalty allowed by law." Id. Foutch also reported that defense counsel had not asked him about his guilt or innocence and had openly expressed displeasure in Foutch having counsel removed from another of his pending cases.
The motion was called for hearing on April 7, 2004, before the judge who was newly-assigned to the case. Answer, Ex. F, Transcript of Proceedings held April 7, 2004. The Court gave Foutch the opportunity to add to his written motion, and Foutch declined. Defense counsel responded to the motion as follows:
. . . Mr. Foutch has indicated that he's been pressured to take a plea negotiation. He, in fact, did take a plea negotiation, a cap of seven years, that plea negotiation was, in fact, refused or not acceptable to Judge Cashman. . . . Mr. Foutch has asked me my evaluation of the case, and I have indicated my evaluation of the case, which I won't tell the Court, but as a result of that, he did not obviously like, and which is not a requirement, but I am ready to go forward with a jury trial if that is what he wants. I mean it is next week. I have no problem representing him in that jury trial.
Id., p. 3-4. The prosecutor stated an opinion that defense counsel had been very diligent in all of the efforts he made on Foutch's behalf. The Court informed Foutch that defense counsel would stay on his case and recommended that Foutch cooperate with him. Id., p. 7-8. The Court informed Foutch that he would not be allowed to select his own attorney unless he went out and hired someone. The Court concluded its ruling as follows: ". . . you are not going to get a new attorney. This case is not going to be delayed. There is no basis here and your explanations and reasons unfortunately are not valid." Id., p. 9.
The following exchange then occurred: THE DEFENDANT: I mean if that is the way that the Court feels, Your Honor, I would choose ...