*

Honorable Adrian G. Duplantier, U.S. District Judge for the Eastern District of Louisiana, sitting by

designation. 

Darrial M. HALL, Petitioner-Appellant,

v.

Michael W. MOORE, Respondent-Appellee.

No. 98-3558.

United States Court of Appeals,

Eleventh Circuit.

June 6, 2001.

Appeal from the United States District Court for the Northern District of Florida. (No. 95-50221-5-CV-RH),

Robert L. Hinkle, Judge.

Before DUBINA and KRAVITCH, Circuit Judges, and DUPLANTIER*

, District Judge.

DUBINA, Circuit Judge:

Appellant, Darrial M. Hall ("Hall"), appeals the district court's judgment denying his pro se petition

for writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. For the reasons that follow, we affirm in part

and reverse in part.

I. BACKGROUND

A Florida state court convicted Hall of second-degree murder with a firearm, possession of a firearm

by a convicted felon, and use of a firearm during the commission of a felony. The trial court departed from

the recommended sentencing guideline range and sentenced Hall to life in prison on the second-degree

murder charge and to concurrent 15-year prison terms on the two remaining charges. Hall appealed his

convictions and sentences, and the First District Court of Appeals ("FDCA") reversed Hall's sentences

because it found that "at least" three out of the five reasons that the trial court identified for the departure were

invalid. The FDCA found that it could not determine beyond a reasonable doubt whether the trial court

would have upwardly departed based on the two remaining reasons. See Hall v. State, 510 So.2d 979

(Fla.Dist.Ct.App.1987). The FDCA remanded the case for re-sentencing. Hall filed for discretionary review

in the Florida Supreme Court, and that court ultimately denied review. See Hall v. State, 519 So.2d 987

(Fla.1988).

While Hall's petition for review was pending in the Florida Supreme Court, the trial court

re-sentenced Hall. The trial court entered an amended judgment and sentence in which it again sentenced Hall
to life in prison for the second-degree murder charge and to concurrent 15-year prison terms for the remaining

counts. For a second time the court departed from the sentencing guidelines, basing its departure on the two

reasons the FDCA previously found to be valid. Hall again appealed to the FDCA, which found no reason

to revisit his argument concerning the validity of the trial court's departure because the court had considered

that argument in Hall's previous appeal. See Hall v. State, 530 So.2d 1066 (Fla.Dist.Ct.App.1988). The

FDCA, however, did find merit in Hall's other arguments, stating that he was being punished twice for using

a firearm during the commission of a crime. Id. at 1068. Therefore, the court reversed the conviction for use

of a firearm during the commission of a felony. Id. The court affirmed the other two convictions, but vacated

and remanded the case for re-sentencing because the trial court lacked jurisdiction when it rendered the

sentences for these convictions. Id.

Once again the trial court re-sentenced Hall, but only on the charges of second-degree murder and

possession of a firearm by a convicted felon. The trial court sentenced Hall to life imprisonment on the

second-degree murder charge and to a concurrent 15-year prison term on the possession of a firearm by a

convicted felon charge. Hall appealed his sentences, arguing in part that the trial court erred by sentencing

him without the aid and assistance of counsel, in violation of the Sixth and Fourteenth Amendments to the

United States Constitution. The FDCA issued a per curiam affirmance without written opinion. See Hall v.

State, 578 So.2d 1104 (Fla.Dist.Ct.App.1991).

Hall then filed a Florida Rule 3.850 petition for post-conviction relief in which he argued that he was

denied the effective assistance of counsel, that the prosecution withheld favorable evidence, and that the

absence of counsel at his re-sentencing violated his Sixth Amendment right. The trial court denied the

petition, finding that Hall did not show the necessary prejudice for his ineffective assistance of counsel claim

under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The trial court also

found that Hall's claim that he was sentenced without counsel was procedurally barred because the issue was

decided on direct appeal. The FDCA affirmed the denial of Hall's Rule 3.850 motion.

Hall then filed the present petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging

that his attorney was ineffective for failing to investigate and present evidence, that the prosecution withheld

some form of physical evidence, and that the absence of counsel at his re-sentencing violated his Sixth

Amendment right. The State responded by arguing that Hall's ineffective assistance of counsel claim did not

meet the strictures of Strickland, that Hall did not demonstrate that the prosecution withheld material
 1

See 11th Cir. R. 36-1. 

evidence, and that Hall had no right to counsel at re-sentencing because it was merely a ministerial act by the

court. A magistrate judge issued a report and recommendation, denying Hall relief. The district court

adopted the magistrate judge's report and denied the petition. Hall then perfected this appeal.

II. ISSUES

1. Whether the absence of counsel at Hall's re-sentencing violated his Sixth Amendment right to

counsel.

2. Whether Hall's counsel rendered ineffective assistance because he failed to investigate and present

certain physical evidence.

3. Whether the prosecution withheld favorable evidence, in violation of Brady v. Maryland, 373 U.S.

83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

III. STANDARD OF REVIEW

"In reviewing the district court's denial of a habeas corpus petition we review the court's findings of

fact for clear error and questions of law de novo." Hurley v. Moore, 233 F.3d 1295, 1297 (11th Cir.2000),

cert. denied, --- U.S. ----, 121 S.Ct. 1746, --- L.Ed.2d---- (2001).

IV. DISCUSSION

After a thorough review of the record, and after having the benefit of oral argument, as well as

reading the parties' briefs, we conclude that there is no merit to any of the arguments Hall presents in support

of issues two and three. Accordingly, we affirm that part of the district court's judgment without further

discussion.1

 Hall's contention that his due process rights were violated because he was not represented by

counsel during his second re-sentencing hearing merits discussion.

Specifically, Hall takes issue with the district court's finding that the second re-sentencing was merely

a "ministerial act" by the trial court. He posits that the transcripts of all three sentencing hearings reflect that

he never had a full and fair opportunity to argue and present evidence in favor of any sentence less than life

without parole. He notes that some of these transcripts were not available to the magistrate judge and the

district court because the State omitted them in its response to Hall's habeas petition. More specifically, he

argues that the trial court was under the mistaken impression that a life sentence was mandatory under the

State's habitual offender law. Moreover, he contends that the State took active measures to transport him

from state prison to the hearing, which is not necessary if the hearing is merely "ministerial." Further, the
supplemental records demonstrate that Hall's trial counsel was available to represent him at the re-sentencing

and his counsel believed that there were substantive arguments he could have made regarding Hall's

re-sentencing.

Hall asserts facts which he alleges demonstrate that the re-sentencing was not merely "ministerial."

First, the FDCA ruled that the 1987 sentencing was essentially void because the trial court lacked jurisdiction.

Second, the FDCA vacated the entire sentencing package for a new sentencing hearing on the two remaining

counts. Third, the trial court had full discretion to fashion a different sentence anywhere between 12 years

and life without parole. Fourth, even the State noted the bizarre nature of Hall's 1989 re-sentencing hearing

in its motion to relinquish jurisdiction. The State argued that Hall's re-sentencing should be done by a

different judge and acknowledged that counsel could inform Hall which issues could be raised at

re-sentencing. Finally, it is apparent that the trial court believed Hall was entitled to counsel due to the

protracted discussion on the entitlement to counsel at the re-sentencing hearing.

 This court has not addressed the specific issue presented here: whether the absence of counsel at a

re-sentencing violates a petitioner's Sixth Amendment right. We have precedent, however, that lends

guidance to a resolution of this issue. In Golden v. Newsome, 755 F.2d 1478 (11th Cir.1985), this court

discussed the absence/presence of counsel at a sentencing proceeding. We stated:

Obviously, where the precise sentence for a particular offense is mandatorily fixed by law such that

its imposition is merely a ministerial ceremony, with no discretion to be exercised by the sentencing

judge, the absence of counsel at such a proceeding could not possibly be prejudicial.

Id. at 1483 n. 9. (emphasis in original.) The court also commented that if the sentencing proceeding is more

than ministerial, the presence of counsel is essential to guide the sentencing court in the exercise of its

discretion. Id. "[T]he absence of counsel is therefore legally presumed to be prejudicial if the sentencing

court had the legal authority to impose a more lenient sentence than it actually did." Id. The Supreme Court

has also noted that the total denial of counsel at a critical stage such as sentencing is presumptively

prejudicial. See United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984).

Moreover, the Florida appellate courts recognize that re-sentencing hearings are critical stages where the right

to counsel attaches. See Taylor v. State, 745 So.2d 341, 342 (Fla.Dist.Ct.App.1999); Griffin v. State, 517

So.2d 669, 670 (Fla.1987).

This court has recognized that "when a criminal sentence is vacated [because one of the convictions

has been reversed], it becomes void in its entirety; the sentence—including any enhancements—has 'been
wholly nullified and the slate wiped clean.' " United States v. Stinson, 97 F.3d 466, 469 (11th Cir.1996)

(citations omitted). Consequently, when a sentence is vacated and remanded for re-sentencing, the district

court has the discretion to "reconstruct the sentence." Id. That is the case here. It is clear from the record that

the entire sentencing package was set aside. Therefore, Hall's presence and his counsel's presence were a

necessity, not a "luxury." Cronic, 466 U.S. at 653, 104 S.Ct. 2039.

 Furthermore, although a defendant may waive his Sixth Amendment right to the assistance of

counsel at a critical stage and proceed pro se, the defendant "should be made aware of the dangers and

disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his

choice is made with eyes open.' " Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562

(1975) (citation omitted). A defendant who wishes to proceed in this manner must clearly and unequivocally

assert his right to self-representation. The court must conduct a hearing to ensure that the defendant is fully

aware of the dangers and disadvantages of proceeding without counsel. See Raulerson v. Wainwright, 732

F.2d 803, 808 (11th Cir.1984).

The trial court did not conduct a Faretta hearing before it sentenced Hall. The judge appeared to

recognize the importance of the absence of Hall's counsel, but he did not question Hall to ensure that his

choice to appear without counsel was made with "eyes open." Faretta, 422 U.S. at 835, 95 S.Ct. 2525.

Moreover, Hall never clearly declared to the sentencing judge that he wanted to represent himself and that

he did not want counsel's assistance. In light of Hall's failure to clearly and unequivocally assert his right to

self-representation, there is a presumption of prejudice to Hall.

Based on the record before us, we conclude that Hall is entitled to relief on this claim. The FDCA

vacated Hall's entire sentence and remanded the case for re-sentencing. On re-sentencing, the trial court's

actions were not merely "ministerial." Indeed, the trial court had the discretion to sentence Hall at the lower

end of the guideline range (12-17 years) or to depart from the guideline range and impose a life sentence.

This was clearly a critical stage of the proceeding for Hall and the absence of counsel prejudiced his rights.

Accordingly, we reverse this part of the district court's judgment and remand this case with directions that

the writ be granted to the extent that Hall be given a new sentencing hearing with counsel present.

AFFIRMED in part, REVERSED in part, and REMANDED.