st charles was charged with a crime in july of that year he was appointed to counsel by november of that year he and his counsel had had many problems mr charles filed a motion with the trial court asking for alternate coun nothing happened no action was taken by the trial court mr charles was not brought before the trial court he was not asked about the problems with the sound so in fact the only hearings held in november of one thousand nine hundred were hearings with only the attorneys present renewing the motion you made over a month ago and which mr charles had made two months before that to be released the first statement out of the trial court to mouth is in my prior ruling stands mr charles will represent himself the supreme court is very very clear the defendant has a fundamental right to the representation of counsel the fact that mr charles and his helpful hasn't he revoked will break down in the relationship was clear in january there was indication of it in november and yet the first time the trial court ever bothers to inquire of mr pearl's and counsel about what is going on is on the record before the prosecutor the attempt to explain he had witness he would like to come to trial you specifically have mr tucker he had a theory of defense he's not very articulate at this he's not very good at explaining himself but his statement is i believe i'm being targeted for prosecution because i'm the member of a notorious criminal family charles family i believe i'm not guilty i believe i'm not being treated fairly because the other individuals allegedly involved in the strike transaction haven't been prosecuted at all and in fact if you look into the records there's proof of mr charles defense there is the testimony subsequently given at the shaklee hearing by the officers all about just how notorious this charles family was there's mr system has overwhelmed me and that is precisely what happens a pro se individual with out the benefit of a lawyer forced to stand trial while fully shackle at the wrist and at the hands for the determination that mr charles was at that point in time somehow a danger and without determining whether there was potentially less restrictive alternative for instance if the concern was his family coming in to break him out posting a few extra guards outside the door the mr charles didn't have to stand before the jury representing himself all shackled at the feet and the wrist that was what happened so what are you going to is that there's an absolutely abu attempted to cross examine his own counsel when the defense was not allowed to do so he eventually did not testify after being talked to for quite a long time about his prior convictions and clearly not understanding the nature of what was going to be done on cross examination but he did in or representing himself what the court said it would not do is appoint another attorney so if he had the option of being represented mr rockwell you really say he's been denied right to counsel he didn't like mr rockwell mr rockwell wouldn't not to answer i am ready for trial i have a defense to present on behalf of mr charles here i am mr rockwell's intent and what he did was immediately renew the motion to withdraw there is absolutely no evidence in the record that mr rockwell he was that's a viable defense and at this moment over of reserve the remaining one minute and ten seconds for  the court i'm jennifer lloyd representing superintendent mosse the ruling at issue in this case is the court's order allowing mr rockwell to withdraw at that time defendant or  er had the opportunity to be heard petitioner makes the argument today that we don't know exactly what the conflict was between petitioner and his counsel and i beg to differ we know exactly what the conflict  and his counsel brought up in court next plane but to what petitioner said was my lawyer won't cooperate with me and didn't really explain much more than not but then counsel explain much more fully he once presented  defense i've investigated i've spoken to some of these witnesses and i don't believe there's anything there any facts to support it i'm not really sure what more of an inquiry the court could have done in this case the court could have dealt in to delve into specifics but the but the nature of the conflict was clear this is not a situation like the shell vs with a case where one of the petitioner was claiming that there was a legal conflict not just a disagreement a tactics but second of all the problem in shell was that the court didn't make any inquiry the petitioner had made the motion the court didn't act on it the case proceed it and so the remedy in that case with to remand back to the court to deal with the lower court to deal with the motion in this case there's no more inquiry to be had the court gave titian of the opportunity to explain petitioner explain we know what the nature of the disagreement was but as the state court found that was insufficient to require the court to appoint new counsel the any problem about the court was required to raise that honest direct appeal he didn't do that so he failed at that level now he makes the argument that he raised the issue in his post conviction petition for state post fiction y however the state courts rejected that petition as being untimely under the state statute and therefore he couldn't have even if that was a proper place for him to raise that claim he didn't do  there was there was a hearing there was no evidence you're hearing at which the state called several correctional officers and other law enforcement personnel to testify about his dangerousness so this isn't a case where he was brought in testimony of the witnesses perhaps a reasonable judge could have concluded differently from those witnesses and said well it's sufficient to have a deputy sitting right here and that will protect the safety of the courtroom or prevent escape  those types of things that the court was concerned about so so i agree with you judge that that even a person could look at this situation and conclude that perhaps full straggling was not absolutely require but but but but that's not the the scope of this court's review what what this court has has to determine is whether the state courts unreasonably applied united states supreme court precedent in making that ruling and again that's assuming that this was all properly raised and preserved following our position is that it was all for it but even assuming that the question was on the merits is before the court i think that given the inquiry that the that the state court did it was really it did not unreasonably apply united states supreme court precedent in ruling the way it did in declining to remove the the shack court made the inquiry the court explained to petitioner the consequences of his continued refusal to cooperate with this lawyer his continued requests that his lawyers feable to withdraw the decision or knew the consequences  the court expressly advised him that there were significant disadvantage is to his proceeding pro se and petitioner stood on his right to do so and so this isn't a situation where we can look and  say you know that petitioner wanted to proceed without counsel if he had all the choices in the world he wanted a different lawyer he wanted to start that process over again but given the choices that he had he elected by his conduct by continuing to insist that his lawyer be allowed to withdraw he elected to proceed on his own the trial court is to approach  involved the level of inquiry to or defendant as to what the problem was it was pretty limited you agree with well i'm not i'm not sure certainly what what was limited he didn't say very much but i don't think he was precluded in any way from explaining any number of things that he wanted to explain i was somewhat vague with a pro se party you have to make it more than the opportunity you have to extract or history behind this and our record doesn't tell us exactly what happened but what is clear is that the court had inquired of counsel before there had been an earlier motion in november filed by petitioner opportunity to be heard that wasn't the nature of his complaint the nature of his complaint was that his lawyer he's unwilling to cooperate with me and then the court asks him will you tell me for a moment what your depends as petitioner tries to explain how some trouble court has to redirect him my question is what would your defense be and and what would have been investigated and they spent several pages going through that and so i i don't think this is a situation where petitioner sa and but but the only i guess the reason i was focusing on what petitioner has said was because the court gave him the opportunity to speak first and for several pages petitioner sort of referred to the lack of cooperation by the lawyer and then the lawyer us what you want us to do i would like you to reverse the district court with from remand with a mandate a cyst on the basis that he was denied counsel and on the basis that he was on constitutionally  was in fact evidence provided to the court from mr tucker one of the alleged participants in this draft at your four hundred that i saw the drugs planted at u r one forty four that was one of the witnesses  based on this record why would it be supposition when he said i looked into the planning of the drugs and there's no evidence for the that the drugs were planted isn't that what the law is that no that's not what you said but if you would like me being required to explain to the court why he hadn't prepared of the fence in front of the prosecutor this court noted united states versus in solace that when you put the defendant and his counsel in the position of having to explain on the record in front of the prosecutor why there's a problem in the relationship you create a conflict that is precisely what the trial court did it should have addressed this issue in november  at the latest in january it should have been pressed this issue with an opportunity for mr charles and his counsel to talk about it outside the presence of prosecuting officers it never did so as a result we don't have a record of what really happened this court has already addressed this iteration in daniel's versus what for instance that it was reversible error to fail to create a record that we could review the conflict issues in counsel and hendrix versus in on this court said it was  schaffel but you have to consider less restrictive alternatives the trial court never made that consideration never determined that there was a less destructive alternative if you look at the evidence presented for  sufficiently done so instead mr charles was required to represent himself while standing fully shackled he was giving an opportunity to on truck one hand take notes and he said that's fine i'll just reach that he didn't want to be a hassle he said that the court had overwhelmed you said i'm not choosing to represent myself there is no question that the court was overwhelming and he specifically said that at your one forty seven the court tells him he's going to be fully shackled and then says by the way would you like one hand to be free consider less restrictive alternatives and that was not done i'm asking you to apply the supreme court's determination last year in dec that even though you have a convicted murderer at a penalty phase you do not it's automatically assume