*Of the Federal Circuit, sitting by designation.

Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 04-1051

JOSEPH JORDAN,

Petitioner, Appellant,

v.

EDWARD FICCO,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Patti B. Saris, U.S. District Judge]

[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]

Before

 Selya, Dyk* and Howard, Circuit Judges.

John M. Thompson with whom Thompson & Thompson, P.C. was on

brief, for petitioner.

Susanne G. Reardon, Assistant Attorney General, with whom

Thomas F. Reilly, Attorney General, was on brief, for respondent.

June 13, 2005
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Per Curiam. This is an appeal from an order denying

Joseph Jordan's petition for a writ of habeas corpus. The issue

presented is whether the district court erred in concluding that

Massachusetts courts did not deny Jordan the right of selfrepresentation, see Faretta v. California, 422 U.S. 806 (1975), or

certain concomitant procedural rights. The Massachusetts Appeals

Court, in a decision that the Supreme Judicial Court declined to

review, held that Jordan invoked his right to self-representation

but then later waived it. The district court decided that this

waiver ruling was neither "contrary to, [n]or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States." 28 U.S.C.

§ 2254(d)(1)(2000). The court also rebuffed Jordan's claim that

the state court's decision was based on "an unreasonable

determination of the facts in light of the evidence presented in

the State court proceeding." Id. § 2254(d)(2). We do not travel

the same decisional path as the other courts that have evaluated

Jordan's Faretta-related claims because, in our view, Jordan only

expressed a desire to represent himself under certain conditions

and those conditions never materialized. We therefore affirm the

denial of the petition on this limited basis.

In October 1991, a Massachusetts grand jury indicted

Jordan on charges of kidnaping, conspiracy to murder, assault by

means of a dangerous weapon, and battery. Jordan was incarcerated
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pending trial. The superior court originally appointed attorney

Alan Rubin, the regional supervisor of the Hampshire County office

of the Committee for Public Counsel Services, to represent him. On

May 4, 1992, Rubin moved to withdraw because of a conflict of

interest and was granted permission to do so. That same day, the

court appointed attorney Scott Hamilton to replace Rubin and

continued Jordan's trial until July 22, 1992.

In three identical motions, filed with the superior court

on June 17, 1992, July 7, 1992, and July 13, 1992 (but prepared and

mailed some time earlier from Jordan's place of incarceration),

Jordan expressed dissatisfaction with Hamilton's case preparation.

These motions, captioned as "Motion[s] to Proceed Pro Se," sought

relief in the form of (1) dismissal of the charges, (2) transfer of

venue to another jurisdiction (presumably where another bar

advocate or public defender's office would be responsible for

defending Jordan), (3) that "[a]n Attorney-At-Law from without the

Hampshire County Bar Advocate Program and from without the Public

Defender's Office be appointed to defend [Jordan] concurrently with

the withdrawl [sic] of the currently appointed Bar Advocate," or

(4) that "[t]he defendant be allowed to proceed Pro Se in this

matter and, due to the circumstances of this case, that this

Honorable Court appoint a standby counsel." On the final page of

his submission, Jordan made clear that self-representation was the

least preferred of the remedies sought: "The defendant in this
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matter therefore respectfully requests that this Honorable Court

allow one of the foregoing alternatives to his proceeding pro se

or, short of those, allow him to proceed pro se . . . ."

On July 8, 1992, Hamilton moved to withdraw as Jordan's

counsel. The superior court held a hearing on the motion that same

day, with Jordan in attendance. The court denied Hamilton's motion

because it did not want to continue the trial again, but it offered

to permit attorney Geri Laventis (whom Hamilton had introduced to

Jordan as possible replacement counsel the week before) to

participate as co-counsel. Laventis could not participate on the

scheduled trial date so she declined. At this point, the court

stated that it would consider appointing co-counsel if the defense

so moved.

On July 13, 1992, the same day that Jordan's third

"Motion to Proceed Pro Se" reached and was filed with the court,

Hamilton acting for Jordan moved to appoint attorney David

Pritchard as co-counsel. The court granted the motion that same

day. After this motion was granted, Jordan made no further mention

of representing himself and permitted Pritchard and Hamilton to

represent him at trial without objection. Moreover, in a letter to

the superior court's Regional Administrative Justice dated July 13,

1992, but filed August 11, 1992, Jordan reiterated his desire for

counsel at his trial: "Regardless of whom is appointed as my

counsel, although I certainly hope that Ms. Laventis be so
1The reference to Ms. Laventis in the July 13 letter is a bit

odd, as Laventis had declined the offer to be appointed co-counsel

five days earlier at the July 8 hearing. In any event, regardless

whether the letter was written on July 13 or shortly before, it is

clear that the letter was written after the thrice-filed Motion to

Proceed Pro Se was sent to the court. 

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appointed,1 I pray that this Honorable Court appoint new counsel

and remove Mr. Hamilton as my counsel as soon as possible." The

July 13 letter made no mention of self-representation or proceeding

pro se. On July 29, 1992, Jordan was convicted on all charges.

Jordan's entire argument to us is based on the factual

premise that Jordan wished to represent himself and sufficiently

communicated that wish to the trial court to trigger the

Faretta (and Faretta derived) rights of which he says he was

denied. We reject this factual premise and thus the argument

itself. We may accept arguendo, as the state appeals court

concluded, that an assertion of Faretta rights may be efficacious

even if it is only made on the condition that another requested and

preferred form of relief be deprived. See, e.g., Adams v. Carroll,

875 F.2d 1441, 1444-45 (9th Cir. 1989). But this does not mean

that a conditional assertion of Faretta rights is always

efficacious. See United States v. Frazier-El, 204 F.3d 553, 558-61

(4th Cir. 2000); id. at 566-67 (Murnaghan, J., dissenting). Where,

as here, the alleged assertion of Faretta rights is clearly

conditioned on the denial of a preferred form of requested relief

involving counseled representation, and where, as here, a variant
2Jordan suggests that his third Motion to Proceed Pro Se was

filed after the appointment of Pritchard as co-counsel and served

as de facto notice to the trial court that Jordan preferred selfrepresentation to combined representation by Pritchard and

Hamilton. Under all the circumstances, the trial court only could

have inferred that the third motion was prepared and mailed prior

to July 13 when the court acted on Jordan's request that he not be

represented by Hamilton, since the motion arrived at the court on

July 13.

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of the preferred form of relief is granted without subsequent

objection or renewal of the request for self representation,2 it

would undermine the Sixth Amendment to treat the conditional

assertion of Faretta rights as efficacious. Such a ruling could

pave the way for inadvertent waivers of the right to counsel by

defendants who "occasional[ly] mus[e] on the benefits of selfrepresentation," Frazier-El, 204 F.3d at 558-59, (citation and

internal quotation marks omitted), and thereby undermine the

"constitutional primacy" of this right vis-à-vis the right to selfrepresentation, id. at 559; see United States v. Proctor, 166 F.3d

396, 401 (1st Cir. 1999). We are unwilling to endorse such a

result.

Affirmed.