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IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION AT COLUMBUS

DANJUMA LEE MARSHALL, 

: 

Petitioner, Case No. 2:11-cv-249 

: District Judge Algenon L. Marbley 

-vs- Magistrate Judge Michael R. Merz 

WARDEN, Lebanon Correctional 

 Institution, 

: 

Respondent. 

REPORT AND RECOMMENDATIONS 

Petitioner Danjuma Marshall brought this habeas corpus action pro se to obtain relief 

from his conviction in the Gallia County Common Pleas Court for drug trafficking. He pleads 

one ground for relief: 

Ground One: Trial court committed reversible error by denying 

me my constitutional right of self-representation. 6th, 14th

Amendments to the U.S. Constitution. 

(Petition, Doc. No. 1, PageID 5. On Magistrate Judge Deavers’ Order (Doc. No. 2), the Warden 

has filed a Return of Writ (Doc. No. 7) in which he concedes that Petitioner has exhausted 

available state court remedies and has not procedurally defaulted in presenting this claim to the 

Ohio courts. Therefore this Court decides the claim on the merits. 

 When a state court decides on the merits a federal constitutional claim later presented to a 

federal habeas court, the federal court must defer to the state court decision unless that decision 

is contrary to or an objectively unreasonable application of clearly established precedent of the 

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United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. ___, 131 

S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 

693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). 

 Because the Ohio Supreme Court declined to review this case, the last reasoned decision 

on Petitioner’s First Ground for Relief is that of the Fourth District Court of Appeals which 

decided the issue as follows: 

In his first assignment of error, Marshall contends that he 

knowingly, intelligently, and voluntarily waived the right to 

counsel. For that reason, Marshall argues that the trial court should 

have granted him the right of self-representation. 

"The Sixth Amendment, as made applicable to the states by the 

Fourteenth Amendment, guarantees that a defendant in a state 

criminal trial has an independent constitutional right of 

selfrepresentation and that he may proceed to defend himself 

without counsel when he voluntarily, and knowingly and 

intelligently elects to do so." State v. Gibson (1976), 45 Ohio St.2d 

366, 345 N.E.2d 399, at paragraph one of the syllabus, citing 

Faretta v. California (1975), 422 U.S. 806, 95 S. Ct. 2525, 45 L. 

Ed. 2d 562. See, also, State v. Doyle, Pickaway App. No. 04CA23, 

2005 Ohio 4072, at P9. "If a trial court denies the right to selfrepresentation, when properly invoked, the denial is per se 

reversible error." State v. Cassano, 96 Ohio St.3d 94, 2002 Ohio 

3751, at P32, 772 N.E.2d 81, citing State v. Reed, 74 Ohio St.3d 

534, 535, 1996 Ohio 21, 660 N.E.2d 456; McKaskle v. Wiggins

(1984), 465 U.S. 168, 177, 104 S. Ct. 944, 79 L. Ed. 2d 122. "To 

establish an effective waiver of the right to counsel, 'the trial court 

must make sufficient inquiry to determine whether [the] defendant 

fully understands and intelligently relinquishes that right.'" 

Cassano at P32, quoting Gibson at paragraph two of the syllabus 

(alteration in original). "Further, the invocation of the right to selfrepresentation must be 'clear and unequivocal.'" State v. Hadden, 

Trumbull App. No. 2008-T-0029, 2008 Ohio 6999, at P62, citing 

Cassano at P38; United States v. Frazier-El (C.A.4, 2000), 204 

F.3d 553, 558. 

"There is no single, definitive test to determine whether a 

defendant voluntarily, knowingly, and intelligently waives the 

right to counsel; rather, we conduct an independent review to see 

whether the totality of the circumstances demonstrates that the 

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defendant voluntarily, knowingly, and intelligently waived his 

right to counsel." State v. Bristow, Scioto App. Nos. 07CA3186 & 

07CA3187, 2009 Ohio 523, at P17, citing Wellston v. Horsley, 

Jackson App. No. 05CA18, 2006 Ohio 4386, at P10. Furthermore, 

we recognize that the United States Supreme Court "has instructed 

that courts must draw every inference against supposing that the 

defendant wishes to waive the right to counsel." People v. 

Marshall (Cal. 1997), 15 Cal. 4th 1, 61 Cal. Rptr. 2d 84, 931 P.2d 

262, 272, citing Brewer v. Williams (1977), 430 U.S. 387, 404, 97 

S. Ct. 1232, 51 L. Ed. 2d 424. See, also, State v. Ferguson, Jackson 

App. No. 04CA13, 2005 Ohio 1438, at P18. 

"After a trial has commenced, the decision about whether to grant 

a defendant's request to represent himself is within the discretion 

of the trial court." State v. Reed (Nov. 6, 1996), Hamilton App. No. 

C-940315 & C-940322, 1996 Ohio App. LEXIS 4860, citing 

Robards v. Rees (C.A.6, 1986), 789 F.2d 379, 384. See, also, State 

v. Vrabel, 99 Ohio St.3d 184, 2003 Ohio 3193, at P51-53, 790 

N.E.2d 303 (holding "that the trial court did not abuse its discretion 

and properly refused appellant's request to represent himself after 

voir dire had been completed and on the first day that evidence was 

to be presented"); State v. Willis, Franklin App. No. 08AP-536, 

2009 Ohio 325, at PP4, 6, 10. Here, because Marshall requested 

self-representation before his trial commenced, the trial court did 

not have to "balance [Marshall's] interest in self-representation 

against the potential disruption of the proceedings already in 

progress." State v. Gordon, Franklin App. No. 03AP-281, 2004 

Ohio 2644, at P31. Accordingly, we believe that an abuse-ofdiscretion review is inappropriate in the present case. Instead, we 

will review the denial of Marshall's right to selfrepresentation de 

novo. See United States v. Cano (C.A.5, 2008), 519 F.3d 512, 515-

16; United States v. Mackovich (C.A.10, 2000), 209 F.3d 1227, 

1236, citing United States v. Boigegrain (C.A.10, 1998), 155 F.3d 

1181, 1185; People v. Danks (Cal. 2004), 32 Cal. 4th 269, 8 Cal. 

Rptr. 3d 767, 82 P.3d 1249, 1267; People v. Abdu (Colo.App. 

2009), 215 P.3d 1265, 1267 ("Other appellate courts have 

conducted de novo review to determine whether a trial court 

improperly denied a defendant's right of self-representation."). Cf. 

Bristow at P17 (reviewing trial court's grant of the right to selfrepresentation de novo); Wellston at P10 (same). 

Here, we find that Marshall did not unequivocally invoke the right 

to self-representation. Numerous courts have held "that a motion 

made out of * * * annoyance or frustration, is not unequivocal -- 

even if the defendant has said he or she seeks self-representation." 

Marshall, 931 P.2d at 271 (citations omitted). For example, in 

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Danks, the Supreme Court of California found that the defendant's 

"references to selfrepresentation were equivocal, born primarily of 

frustration regarding the granting of counsel's requests for 

continuances and his desire to avoid further psychiatric 

examination." Danks at 1267. Similarly, the United States Ninth 

Circuit Court of Appeals found that a defendant's request for selfrepresentation was equivocal because the request "was an 

impulsive response to the trial court's denial of his request for 

substitute counsel. * * * [The defendant's] comments did not 

demonstrate unequivocally that he desired to represent himself. 

Instead, it is quite clear that he wanted to be represented by a 

different attorney[.]" Jackson v. Ylst (C.A.9, 1990), 921 F.2d 882, 

888-89. And finally, the United States Eighth Circuit Court of 

Appeals found, in part, that a request for self-representation was 

not clear and unequivocal because the defendant "was merely 

expressing his frustration[.]" Reese v. Nix (C.A.8, 1991), 942 F.2d 

1276, 1281. See, also, State v. Steele, 155 Ohio App.3d 659, 2003 

Ohio 7103, at P20, 802 N.E.2d 1127 (stating that the defendant's 

requests for selfrepresentation "were more in the name of 

impulsive acts expressing frustration with his first counsel than 

unequivocal requests to represent himself); Marshall, 931 P.2d at 

272-73 ("A motion for selfrepresentation made in passing anger * 

* * may be denied."). 

A review of the March 3, 2009 hearing demonstrates that Marshall 

requested to represent himself out of anger and frustration. After 

Marshall described the problems he had with his court-appointed 

attorneys, the trial court judge asked the following question: "So 

the problem you really have then is a conflict with the way you 

believe your case should proceed as opposed to the way that it has 

proceeded?" Pre-Trial Transcript of Proceedings (Complete) at 

116. Marshall replied, "[y]es." Later, Marshall admitted that he 

decided to represent himself "out of anger." 

"COURT: Mr. Marshall you have been involved in this case in this 

particular Court since May of last year. You have now been 

represented by three separate court appointed attorneys. Tell me 

how it is now less than two weeks before this scheduled trial that 

you have now decided that you can obtain retained counsel to act 

as standby counsel when for the last nine months or however long 

ago it's been that you have not had retained counsel, that you've 

had court appointed counsel. 

"MR. MARSHALL: Well it's been my decision since um, and the 

case has been going on since April but it's been my decision, I 

came to that decision um, sometime before I was supposed to go to 

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trial in August um, when I was uh, appointed [Attorney Two] and I 

sat in Scioto County jail for two months and I didn't hear from 

nobody. I didn't receive no letters. I wrote [Attorney Two], I 

called, but he didn't receive or didn't accept none of my calls. 

That's when, out of anger, I decided what's the point of having an 

attorney when they don't give you no legal advice or counsel, they 

don't speak to you. They're supposed to you know, answer your 

calls so you can talk about the case or come visit you. I received 

none of that in four months that I sat incarcerated, so I said that I 

would be better off representing myself you know." Pre-Trial 

Transcript of Proceedings (Complete) at 146-47. 

Because Marshall acted out of anger and frustration, Marshall did 

not unequivocally demonstrate that he wanted to represent himself. 

Therefore, no constitutional violation occurred when the trial court 

denied Marshall's request for self-representation. 

Accordingly, we overrule Marshall's first assignment of error. 

State v. Marshall, 2010 Ohio 1958, ¶¶ 16-25 (Ohio App. 4th Dist. Apr. 29, 2010). 

 A reading of the Court of Appeals’ decision shows that it carefully considered not only 

the leading Supreme Court case of Faretta, supra, but also state and federal case law interpreting 

Faretta and the right to self-representation. Clearly, its decision was not contrary to Faretta. 

Nor was it an objectively unreasonable application of Faretta. Petitioner tested positive for 

illicit drugs. He admitted that he was acting out of anger. And there were clearly facts from 

which the court could reasonably conclude his principal interest was in delay: his request was 

made just two weeks before the scheduled trial, but supposedly months after he had made the 

decision. 

 Petitioner’s sole Ground for Relief is therefore without merit. 

Conclusion 

It is respectfully recommended that the Petition be dismissed with prejudice on the basis of the 

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foregoing analysis. Because reasonable jurists would not disagree with this conclusion, 

Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth 

Circuit that any appeal would not be taken in objective good faith. 

January 22, 2013. 

 s/ Michael R. Merz

 United States Magistrate Judge 

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the 

proposed findings and recommendations within fourteen days after being served with this Report 

and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen 

days because this Report is being served by one of the methods of service listed in Fed. R. Civ. 

P. 5(b)(2)(C), (D), (E), or (F). Such objections shall specify the portions of the Report objected 

to and shall be accompanied by a memorandum of law in support of the objections. If the Report 

and Recommendations are based in whole or in part upon matters occurring of record at an oral 

hearing, the objecting party shall promptly arrange for the transcription of the record, or such 

portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the 

assigned District Judge otherwise directs. A party may respond to another party=s objections 

within fourteen days after being served with a copy thereof. Failure to make objections in 

accordance with this procedure may forfeit rights on appeal. See United States v. Walters, 638 

F.2d 947 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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