United States Court of Appeals

For the Eighth Circuit

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No. 15-2319

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Michael Fiorito

lllllllllllllllllllllPetitioner - Appellant

v.

United States of America

lllllllllllllllllllllRespondent - Appellee

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Appeal from United States District Court 

for the District of Minnesota - Minneapolis

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 Submitted: March 16, 2016

 Filed: May 3, 2016

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Before MURPHY, BEAM, and GRUENDER, Circuit Judges.

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GRUENDER, Circuit Judge.

Michael Fiorito pleaded guilty to one count of mail fraud. While awaiting

sentencing and against the advice of counsel, Fiorito filed several letters requesting

to withdraw his guilty plea. The district court1 granted Fiorito’s request and released

1

The Honorable Paul A. Magnuson, United States District Court for the District

of Minnesota. As discussed below, Judge Magnuson subsequently recused, and the
him from the plea agreement. Fiorito proceeded to trial and was convicted. He filed

a motion collaterally attacking his conviction pursuant to 28 U.S.C. § 2255, arguing,

inter alia, that the district court violated his Sixth Amendment right to counsel by

considering and granting his pro se request to withdraw his guilty plea without first

conducting a hearing under Faretta v. California, 422 U.S. 806 (1975). The district

court rejected Fiorito’s claims but granted a certificate of appealability on the

following question: “Was Fiorito deprived of his Sixth Amendment right to counsel

when [the district court] granted Fiorito’s pro se request to withdraw his guilty plea?” 

We hold that he was not, and we therefore affirm.

I.

In June 2007, a grand jury indicted Fiorito for three counts of mail fraud and

one count of conspiracy to commit mail fraud. The case was assigned to Judge

Magnuson.

After extensive negotiations with his counsel, the Government presented Fiorito

with two alternative plea offers: a “determinate deal” and an “indeterminate deal.” 

Under either, Fiorito would plead guilty to one count of mail fraud and the remaining

counts would be dismissed. In addition, the Government would recommend a threelevel downward adjustment for acceptance of responsibility under USSG § 3E1.1 if

Fiorito “fully acknowledge[d] complete responsibility for the offense of conviction

and all relevant conduct.” Beyond these common features, however, the plea offers

differed significantly.

Underthe determinate offer, the parties would not dispute the application ofthe

sentencing guidelines. Instead, Fiorito would stipulate to a guidelines range of 100-

case was assigned to the Honorable Patrick J. Schiltz, United States District Court for

the District of Minnesota.

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125 months, and the Government would recommend a sentence of 100 months’

imprisonment. The indeterminate offer, in contrast, permitted Fiorito to object to

assertions in the presentence investigation report (“PSR”) regarding his conduct and

the application of the guidelines. Under this offer, the Government could attempt to

show at the sentencing hearing that Fiorito’s offense level under the guidelines was

significantly higher than the offense level stipulated under the determinate offer. 

Against the advice of counsel, Fiorito chose the indeterminate offer. 

After Fiorito pleaded guilty, the probation office issued a PSR that included a

two-level enhancement for obstruction of justice, proposed no reduction for

acceptance of responsibility, and calculated a guidelines range of 151-188 months’

imprisonment. Fiorito objected to virtually all the factual assertions and guidelines

calculationsin the PSR. The district court scheduled an evidentiary hearing regarding

these disputes. 

In an attempt to avoid an extensive evidentiary hearing, the Government

extended an offer to resolve the PSR disputes under conditions similar to the

determinate offer Fiorito had earlier rejected. Specifically, the Government offered

“to enter into a supplemental stipulation” in which the parties would recommend a

sentence of 100 months’ imprisonment. In addition, the Government would

recommend that this sentence be served concurrently with a 120-month term of

imprisonment that Fiorito already was serving as a result of an unrelated state

conviction. If Fiorito did not accept this offer, the Government warned that it would

ask the court to impose a consecutive sentence at the top of the applicable guidelines

range. 

Fiorito regarded the Government’s ultimatum as a breach of the plea agreement. 

The Government denied that it was in breach, noting that the agreement required the

Government to recommend the acceptance-of-responsibility reduction only if Fiorito

“fully acknowledge[d] complete responsibility for the offense of conviction and all

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relevant conduct.” The Government contended that it had the right to refuse to

recommend the reduction under the indeterminate agreement because Fiorito, in his

objectionsto the PSR, denied that he had committed any of the conduct alleged in the

indictment. 

Fiorito, his counsel, and the Government contacted the district court numerous

times about this dispute. Fiorito’s counsel filed a motion seeking to enforce the plea

agreement or, in the alternative, to withdraw the guilty plea. That same day, Fiorito

wrote a letter to the district court requesting to withdraw his plea due to the

Government’s breach. The Government responded and urged the court to let Fiorito

withdraw his plea because he denied engaging in any of the conduct charged in the

indictment. 

Before the district court could respond to any of these documents, Fiorito’s

counsel filed a motion to withdraw the previous motions to withdraw Fiorito’s guilty

plea. However, this motion reiterated Fiorito’s position that the Government was

breaching the plea agreement and sought enforcement of it. The Government denied

that it was in violation of the agreement but again urged the court to allow Fiorito to

withdraw his guilty plea. The district court denied the motion to enforce, noting that

the Government had not violated the agreement. In its order, the court warned that if

Fiorito continued to deny responsibility, the court would “sua sponte reject the Plea

Agreement and order [Fiorito] to stand trial.” 

The next day, Fiorito wrote a second letter to the district court requesting to

withdraw his guilty plea, and the Government again agreed that Fiorito should be

allowed to do so. Several weeks later, Fiorito sent a third letter to the court requesting

to withdraw his guilty plea. After receiving the third letter, the district court requested

that Fiorito’s counsel write a letter explaining the situation. Fiorito’s counsel reported

that their relationship had become strained and that Fiorito had instructed him to file

another motion to withdraw on the ground that his initial decision to plead guilty had

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been the result of amiscommunication regarding the plea agreement. Counsel refused

to file that motion, however, because he did not believe that there had been any

miscommunication. 

Without conducting a hearing, the district court granted Fiorito’s request to

withdraw his guilty plea. In its order, the court stated: 

It appearsto the Court that [Fiorito] is asserting that he isinnocent of the

crimes charged in the Indictment. Moreover, the Government has agreed

that [he] should be permitted to withdraw his guilty plea and the case

should go to trial. Thus . . . the Court finds that [he] has established the

requisite “fair and just reason” to withdraw his plea of guilty. 

The following day,Judge Magnuson recused from the case, and the case was assigned

to Judge Schiltz. 

Several months after withdrawing his guilty plea, Fiorito wrote to the court and

asked the court to appoint new counsel or, in the alternative, to permit him to proceed

pro se. After conducting a Faretta hearing, the district court granted Fiorito’srequest

to proceed pro se and appointed his lawyer as standby counsel. 

Fiorito represented himself at trial and was convicted on all counts. The district

courtsentenced him to 270 months’ imprisonment, imposed consecutively to hisstate

sentence. We affirmed his conviction and sentence on direct appeal. United States

v. Fiorito, 640 F.3d 338, 353 (8th Cir. 2011).

Fiorito filed a motion to vacate, set aside, or correct his sentence under 28

U.S.C. § 2255, raising seventeen grounds for relief. After a four-day evidentiary

hearing, the district court denied Fiorito’s motion. 

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II.

Fiorito argues that he was deprived of his Sixth Amendment right to counsel

because Judge Magnuson allowed him to withdraw his guilty plea, without a hearing

and against the advice of counsel, on the basis of his pro se requests. We review for

clear error the district court’s findings of fact following an evidentiary hearing held

on a § 2255 motion. Laird v. United States, 987 F.2d 527, 529 (8th Cir. 1993). We

review de novo the ultimate conclusion of whether the defendant’s Sixth Amendment

rights were violated. Thomas v. United States, 737 F.3d 1202, 1206 (8th Cir. 2013).2

The Sixth Amendment protects a defendant’s right to counsel at all “‘critical

stages’ in the criminal justice process.” Maine v. Moulton, 474 U.S. 159, 170 (1985). 

It also protects a defendant’s right to waive his right to counsel and to represent

himself. Faretta, 422 U.S. at 835-36. Because a defendant exercising his right to

represent himself “necessarily relinquishesthe usual benefits associated with the right

to counsel,” he must make a knowing and intelligent waiver. United States v. Yagow,

953 F.2d 427, 430 (8th Cir. 1992). A waiver is undertaken knowingly and

intelligently where a defendant is “made sufficiently aware of hisright to have counsel

and of the possible consequences of a decision to forego the aid of counsel.” 

Bumgarner v. Lockhart, 920 F.2d 510, 512 (8th Cir. 1990) (quoting Meyer v. Sargent,

854 F.2d 1110, 1114 (8th Cir. 1988)). The purpose of conducting a Faretta hearing

is to ensure that a defendant’s waiver is knowing and intelligent by warning the

defendant “of the dangers and disadvantages of self-representation.” Bilauski v.

Steele, 754 F.3d 519, 522 (8th Cir.), cert. denied, 574 U.S. ---, 135 S. Ct. 294 (2014)

(quoting Faretta, 422 U.S. at 835).

2

On appeal, the Government argues that this claim is procedurally barred

because Fiorito did not raise the claim on direct appeal. See Becht v. United States,

403 F.3d 541, 545 (8th Cir. 2005). However, procedural default is an affirmative

defense, which the Government waived when it failed to raise the issue in the district

court. See United States v. Brewer, 766 F.3d 884, 887 n.2 (8th Cir. 2014).

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A defendant does not have a constitutionalright “to simultaneously proceed pro

se and with the benefit of counsel.” United States v. Agofsky, 20 F.3d 866, 872 (8th

Cir. 1994) (emphasis added). However, district courts have discretion to permit

“hybrid representation” arrangements whereby a defendant takes oversome functions

of counsel despite being represented. United States v. Summage, 575 F.3d 864, 876

(8th Cir. 2009). The district court concluded that Fiorito had proceeded under a

hybrid representation scheme when he contacted Judge Magnuson directly to request

to withdraw his plea despite being represented by counsel.

Such hybrid representation arrangements create significant problems in

analyzing the issue of waiver of counsel. Where a defendant seeks to represent

himself entirely without a lawyer, he must knowingly and intelligently waive hisright

to counsel. Faretta, 422 U.S. at 835. However, courts of appeals analyzing hybrid

representation arrangements have disagreed asto when a defendant’s conduct triggers

the waiver of his right to counsel. Compare United States v. Leggett, 81 F.3d 220,

224 (D.C. Cir. 1996) (holding that defendant in hybrid representation arrangement

does not waive his right to counsel unless he makes “an articulate and unmistakable

demand . . . to proceed pro se”) with United States v. Turnbull, 888 F.2d 636, 638 (9th

Cir. 1989) (holding that defendant must knowingly and intelligently waive his right

to counsel before he assumes any of the “core functions” of counsel). Further, courts

that have held that a waiver is necessary for hybrid representation have disagreed

about what procedures are required before a defendant’s waiver is knowing and

intelligent. While some courts have required Faretta warnings any time a hybridrepresented defendant waives his right to counsel, see, e.g., United States v. Davis,

269 F.3d 514, 518-20 (5th Cir. 2001), we have held that such warnings are not

required when “the defendant had the required knowledge [about the dangers of

proceeding pro se] from other sources.” Yagow, 953 F.2d at 431.

This brings us to Fiorito’s claim. He asserts that withdrawing a guilty plea is

a “critical stage” of the proceedings and that moving to withdraw a plea constitutes

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a “core function” of counsel. Therefore, despite retaining counsel, Fiorito argues that

the district court permitted him to waive his right to counsel by ruling on his pro se

letter requesting to withdraw his plea. Fiorito claims that the court was required to

hold a Faretta hearing before granting hisrequeststo ensure that his purported waiver

of counsel was knowing and intelligent. According to Fiorito, because the court erred

by failing to hold this hearing to warn him about the dangers of proceeding pro se, he

was deprived of his Sixth Amendment right to counsel and must be returned to the

position he would have been in had no such deprivation occurred.3

We reject two premises that Fiorito relies upon for his argument. First, the

mere fact that the district court considered Fiorito’slettersrequesting to withdraw his

guilty plea did not necessarily render him unrepresented. Fiorito was represented by

counsel, who repeatedly advised him not to withdraw his guilty plea. Fiorito made the

personal decision to ignore this advice and withdraw his guilty plea; asthe defendant,

he maintained the “ultimate authority to make certain fundamental decisions regarding

the case,” including whether to plead guilty. See Thomas v. United States, 737 F.3d

1202, 1207 (8th Cir. 2013) (quoting Jones v. Barnes, 463 U.S. 745, 751 (1983)); see

also United States v. Plitman, 194 F.3d 59, 63 (2d Cir. 1999) (distinguishing between

“personal” decisions, which a defendant must make, and “strategic” or “tactical”

decisions, which counsel can make without a defendant’s consent). Because Fiorito

was represented by counsel and received counsel’s advice, he did not waive his right

to counsel, and the district court had no duty to conduct a Faretta hearing. See Stano

v. Dugger, 921 F.2d 1125, 1147 (11th Cir. 1991) (rejecting claim that defendant was

entitled to Faretta warnings when he pleaded guilty against the advice of counsel);

United States v. Pouport, 565 F. App’x 53, 55 (2d Cir. 2014) (holding that defendant

3

Fiorito argues that he was deprived of his right to counsel only at the plea

withdrawal stage, not at trial. The district court held a Faretta hearing before

allowing Fiorito to proceed pro se at trial to ensure that he knowingly and intelligently

waived his right to trial counsel. 

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did not waive his right to counsel by filing and litigating a pro se motion to withdraw

his guilty plea because his counsel continued to represent him for all other purposes).

Second, Fiorito’s argument fails even if we assume that he was unrepresented

and proceeded pro se when he sought to withdraw his guilty plea. The remaining flaw

in Fiorito’s argument is his assertion that a Faretta hearing is always required when

a defendant waives his right to counsel. The Supreme Court has rejected the bright

line rule Fiorito advances:

[W]e have taken a more pragmatic approach to the waiver

question—asking what purposes a lawyer can serve at the particular

stage of the proceedings in question, and what assistance he could

provide to an accused at that stage—to determine the scope of the Sixth

Amendment right to counsel, and the type of warnings and procedures

that should be required before a waiver of that right will be recognized.

Patterson v. Illinois, 487 U.S. 285, 298 (1988). The stage of the proceedings thus

affects the type of advisement necessary to make a waiver valid. The Court has

required more rigorous warnings about the usefulness of counsel when a defendant

“require[s] aid in coping with legal problems or assistance in meeting his adversary.”

United States v. Ash, 413 U.S. 300, 313 (1973). At one end of the spectrum, the

Supreme Court has held that a defendant who spoke with police officers after being

indicted had knowingly and intelligently waived his right to counsel for purposes of

post-indictment questioning because he received Miranda warnings before being

questioned. Patterson, 487 U.S. at 298-99. At the other end, the Court has required

trial courtsto convey detailed warnings about the disadvantages of proceeding pro se

before allowing a defendant to waive his right to counsel at trial. Faretta, 422 U.S.

at 835-36. “The information a defendant must possess in order to make an intelligent

election [to proceed without counsel] . . . will depend on a range of case-specific

factors, including the defendant’s education or sophistication, the complex or easily

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grasped nature of the charge, and the stage of the proceeding.” Iowa v. Tovar, 541

U.S. 77, 88 (2004). 

Every court of appeals that has considered the question has concluded that a

plea withdrawal hearing is a “critical stage” of the proceedings. Hines v. Miller, 318

F.3d 157, 167 (2d Cir. 2003) (Winter, J., dissenting) (collecting cases). However,

these cases all involve appeals from the denial of the defendants’ pro se motions to

withdraw their guilty pleas. See, e.g., United States v. Joslin, 434 F.2d 526, 529-30

(D.C. Cir. 1970). And the courts analyzing waiver in this context have focused on the

importance of having counsel assist the defendant during a plea-withdrawal hearing. 

See, e.g., United States v. Vigil, 605 F. App’x 757, 762 (10th Cir. 2015) (“At the pleawithdrawal hearing, a defendant can benefit from counsel because the attorney would

understand how to navigate the substantive and procedural challenges, such as the

grounds for withdrawal and the examination and cross-examination of witnesses.”).

Here, Fiorito did not need assistance from counsel—or a warning from the court

about the dangers of proceeding without counsel—in litigating an adversarial hearing

on his request to withdraw. The Government agreed that Fiorito should be allowed

to withdraw his guilty plea, and the court’s decision to grant the motion without an

evidentiary hearing obviated the need to warn Fiorito about the difficulty of

representing himself at such a hearing. Fiorito thus cannot “articulate with precision

what additional information should have been provided to him before he would have

been competent to waive his right to counsel” for purposes of convincing the court to

grant his motion to withdraw his plea. See Patterson, 487 U.S. at 294.4

4

Fiorito claims that his success in moving to withdraw is irrelevant because

“structural errors” violating the Sixth Amendment are not subject to harmless error

review. This argument puts the cart before the horse. We do not apply harmless error

here. Instead, we consider the success of Fiorito’s efforts—and the absence of a

hearing requiring assistance from counsel—only to determine whether a Sixth

Amendment violation occurred in the first place. See Patterson, 487 U.S. at 298

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Although he did not need assistance from counsel in litigating his request to

withdraw his plea, Fiorito argues that he was deprived of his right to counsel because

he was notsufficiently informed about whether he should have attempted to withdraw

his guilty plea in the first place. According to Fiorito, he was not aware of the

significantly higher penalties he might face if he proceeded to trial. Had the district

court conducted a Faretta hearing before considering his request, Fiorito argues, the

court could have ensured that he knew of the potential sentencing range and also

understood the danger of making a plea decision without the advice of counsel. 

Fiorito’s argument fails. We will uphold a waiver of counsel absent specific

warnings when “the record as a whole demonstrates ‘that the defendant knew and

understood the disadvantages of self-representation.’” United States v.Crawford, 487

F.3d 1101, 1105-06 (8th Cir. 2007) (quoting United States v. Stewart, 20 F.3d 911,

917 (8th Cir. 1994)). The record clearly shows that Fiorito’s alleged waiver was

knowing and intelligent. First, Fiorito understood his right to counsel. At his original

plea hearing, where he pleaded guilty, Fiorito confirmed that he understood his right

to be represented by a lawyer at every stage of the proceedings. See Meyer, 854 F.2d

at 1114-15 (relying on instruction from probation revocation hearing to find that

defendant understood his right to counsel); United States v. Willie, 941 F.2d 1384,

1389 (10th Cir. 1991) (relying on defendant’s arraignment to find that waiver was

valid). 

Second, the record from Fiorito’s four-day evidentiary hearing on his § 2255

motion shows that he understood the danger of abandoning his plea agreement. His

lawyer repeatedly advised him against withdrawing his plea and warned him that he

would receive a substantially longer sentence if he went to trial. Even if his counsel

did not inform Fiorito of the precise sentencing range applicable absent the guilty

(holding that procedures required to ensure valid waiver will vary based on “what

purposes a lawyer can serve at the particular stage of the proceedings in question, and

what assistance he could provide to an accused at that stage”). 

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plea, the circumstances show that Fiorito had sufficient knowledge to make an

informed choice whether to withdraw his plea. See United States v. Turner, 644 F.3d

713, 721-22 (8thCir. 2011)(holding that waiver was valid even though defendant was

not warned about statutory range of charged offenses). As the district court found:

Fiorito was undoubtedly aware—with some degree of specificity—of the

risks he faced. Fiorito is very smart; he gets into trouble because he

lacks self control, not because he lacks intelligence. Fiorito is also the

most legally savvy non-lawyer who has appeared before this Court. 

Time and again, he has proven himself capable of researching,

understanding, and arguing sophisticated legal issues, and (as noted) he

reviews every jot and tittle of every document relevant to his case. 

See Bumgarner, 920 F.2d at 512-13 & n.4 (considering defendant’s knowledge of the

proceedings to support conclusion that defendant understood the dangers of

self-representation). Thus, even if he waived his right to counsel, we conclude that

Fiorito did so knowingly and intelligently. See Meyer, 854 F.2d at 1114-15 (holding

that waiver of trial counsel was knowing and intelligent, despite lack of Faretta

warnings, where defendant understood his right to counsel and knew of the dangers

of self-representation). 

Fiorito also faults the district court for “failing to inquire about the breakdown

in the attorney-client relationship and the conflict between counsel and client.” He

argues that this conflict of interest stemmed from his counsel’s failure to inform him

properly about the plea agreement. The plea agreement was structured to (1) allow

Fiorito to contest many of the facts alleged by the Government, and (2) require the

Government to recommend a three-level reduction for acceptance of responsibility if

Fiorito “fully acknowledge[d] complete responsibility for the offense of conviction

and all relevant conduct.” Fiorito argues that these benefits were mutually exclusive

because his denial of many of the Government’s allegations allowed the Government

to refuse to recommend the acceptance-of-responsibility reduction. According to

Fiorito, his counsel provided ineffective assistance by failing to warn him that he

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could not contest the Government’s allegations while simultaneously demanding a

reduction for acceptance of responsibility. And because his attempt to withdraw his

guilty plea was based in part on this allegation of inadequate representation, Fiorito

asserts that his counsel had an actual conflict of interest such that the court was

required to conduct a hearing regarding this conflict. 

We disagree. Fiorito did not move for appointment of new counsel until several

months after he withdrew his guilty plea, and his complaints about counsel in his

letters to Judge Magnuson did not warrant further inquiry from the court. We agree

with the district court that these letters did not indicate a conflict of interest, and we

therefore reject Fiorito’s claim that Judge Magnuson erred by failing to investigate

Fiorito’s relationship with his counsel. See United States v. Davidson, 195 F.3d 402,

407 (8th Cir. 1999) (“There is no obligation on a trial court to look into a defendant’s

representation unless it becomes aware of circumstances that would require further

investigation.”).

III.

For the foregoing reasons, we affirm the judgment of the district court.

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