2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-27-2005

Pazden v. Maurer

Precedential or Non-Precedential: Precedential

Docket No. 03-4236

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT

No. 03-4236

MICHAEL PAZDEN,

 Appellant

 v.

SUSAN MAURER, Acting Commissioner, New Jersey

Department of Corrections; 

T. MOORE, MR., Superintendent, East Jersey State Prison; 

W. MCCARGO, MR., Acting Chairman, New Jersey State

Parole Board; 

PETER HARVEY, Attorney General of the State of New

Jersey

 

On Appeal from the United States District Court 

for District of New Jersey, Pursuant to a Certificate of

Appealability 

Granted By This Court

(Civil Action No. 00-cv-4435)

District Judge: Hon. John W. Bissell, Chief Judge
 Judge Richard L. Nygaard, Senior Circuit Judge effective 1

July 9, 2005.

2

Argued: March 8, 2005

Before: NYGAARD , McKEE and RENDELL, Circuit 1

Judges

(Opinion filed: September 27, 2005)

 

Kevin McNulty, Esq. (Argued)

Lawrence S. Lustberg

Gibbons, Del Deo, Dolan, Griffinger & Vecchione

One Riverfront Plaza

Newark, NJ 07102

Attorneys for Appellant

James F. Avigliano

Steven E. Braun, Esq. (Argued)

Passaic County Prosecutor’s Office

Administration Building

401 Grand Street

Paterson, NJ 07505

Attorneys for Appellee

OPINION
 Since the District Court accurately and fully set forth the 2

factual background of this habeas action, we take the liberty of

excerpting much of this portion of our opinion from the opinion

of the District Court. See Pazden v. Maurer, No. 00-4435, slip

op. at 3-11 (D.N.J. Sept. 25, 2003).

3

McKee, Circuit Judge

Michael Pazden appeals from the District Court’s order

denying his petition for writ of habeas corpus under 28 U.S.C.

§ 2254(a). Pazden was convicted in state court on a 119 count

indictment involving “white-collar fraud” stemming from the

sale of condominiums in Clifton, New Jersey. We are asked to

determine if the trial court violated Pazden’s Sixth Amendment

right to counsel when the court denied defense counsel’s request

for a continuance and Pazden proceeded to trial pro se. For the

reasons that follow, we hold that the trial court did violate

Pazden’s Sixth Amendment rights and that the state courts’

determination to the contrary was both contrary to, and an

unreasonable application of, clearly established law as

proclaimed by the Supreme Court. Accordingly, we will reverse

the District Court’s denial of federal habeas relief and remand

with instructions to grant a conditional writ. 

I. Background.2

From 1987 to 1990, Pazden worked for Riverview

Village Inc., a corporation wholly owned by Robert Pazden,

appellant’s brother. Riverview was incorporated to develop,

market, and sell a condominium complex in Clifton, New
 In a second, related indictment, Pazden was charged with 3

two counts of fourth degree uttering a forged instrument. He

pleaded not guilty to all counts of both indictments.

4

Jersey. Between March 1989 and April 1990, Riverview

contracted with purchasers for the sale of several individual

units. After entering into those contracts, however, Riverview

developed financial difficulties and ultimately failed. However,

Riverview refused to return the deposits of numerous

purchasers. It claimed that those purchasers had defaulted on

their obligations under the agreements, and they were therefore

not entitled to a refund. The corporation did, however, refund

deposits to approximately 200 other purchasers. 

On February 26, 1991, one of the prospective purchasers

filed a private criminal complaint against Pazden charging him

with theft by deception. Pazden was arraigned on that complaint

on March 27, 1991. 

Almost three years later, on December 7, 1993, Pazden

was named in a 131-count indictment that arose from the same

facts as the 1991 complaint. However, it added the additional

42 purchasers whose deposits had not been refunded. Pazden 3

asked for appointed counsel, and the court assigned John

Schadell, an Assistant Deputy Public Defender, to represent

him.

On October 3, 1995, Wanda Bartos replaced John

Schadell as Pazden’s court-appointed attorney in the criminal

prosecution underlying the instant habeas action. Prior to trial
5

in the Superior Court of New Jersey, Law Division, Passiac

County, however, Ms. Bartos informed the court that, given her

recent involvement in the case and the state’s alleged refusal to

provide discovery, she was unprepared to proceed to trial. Trial

was scheduled to begin February 20, 1996. Specifically, Ms.

Bartos explained:

One of the claims [Pazden] makes is

that we had failed to interview and

contact the various witnesses that

will be needed for this trial and that

is true and was the basis of my

application for a three month

adjournment initially when I said I

was not ready to and able to proceed

with the case.

When I first got the case from Mr.

Schadegg, I asked for the witness

list. There was no witness list in

that file . . . .

[The list of potential witnesses,

when obtained from Pazden,

contained] 560 names and it would

have been virtually impossible for

me to contact, to interview, to

evaluate in assessing those witnesses

appearing in that very, very short

period of time.
 Over a fourteen month period, the prosecution provided the 4

defense with almost 5,000 pages of discovery, including 1,787

pages in December, 1994, 2,502 pages in the fall of 1995, an

additional 459 pages in the fall of 1995 and a packet of

discovery that was delivered to the defense on January 26, 1996.

6

App. 116-117.

In addition, in a letter she sent to the court, Ms. Bartos

also contended that she had been hampered by the prosecution’s

refusal to furnish timely discovery as well as the piecemeal

fashion that discovery was being provided. She was 4

particularly concerned about a discovery packet that the

prosecution delivered on January 26, 1996, approximately three

weeks before trial was to begin. That packet contained a

document that pertained to the processing and approval of the

corporation’s Public Offering Statement by the Department of

Community Affairs. It alerted Ms. Bartos to the existence of

still more documents that had not been yet been turned over by

the prosecution. Ms. Bartos explained to the court that,

“[h]aving been alerted by this discovery provided by the

Prosecutor’s Office of the importance of these documents,

defense counsel would not be acting in the best interest of the

client nor providing able and effective counsel in proceeding to

trial at this time.” App. 252.

Based on all of these factors, Ms. Bartos requested a

three-month postponement of the trial date. At a January 19,

1996 hearing, Ms. Bartos’s co-counsel in the case, Mr. Smith,
7

explained to the court: 

Judge, my first estimate of the

number of witnesses that will be

called by the defense may range

anywhere to 50 to 150, and that is a

first look at the case. There are at

least 50 witnesses that I think we

would be remiss if we did not call.

Those witnesses have to – there may

even be some outstanding

documents that those witnesses

have. Once those documents have

been reviewed we need to interview

those witnesses, and based on . . .

the information they provide . . .

there may be other witnesses that we

would need to meet with and acquire

documents from.

. . . 

There are a number of outstanding

requests for discovery. There may

have been Court Orders by this

Court for the State to turn over

discovery. There are thousands of

documents to be reviewed and I just

don’t see how, even with two

attorneys working on this case it
8

could be ready by the 13 , and th

certainly I’ve gone to my Deputy

and requested some additional

attorneys to see if we can move this

case forward, and get it ready.

App. 262-64. Nevertheless, the court refused to postpone the

trial.

Since the court would not delay the trial, and believing

that he was then more familiar with the case than his attorney,

given the witnesses and materials his attorney had not had an

opportunity to explore, Pazden informed the court that he

believed he had no alternative but to represent himself. The

following exchange occurred as the court explained the dangers

of proceeding pro se:

The Court: And this is what you’re sure you

want to do?

Mr. Pazden: Your Honor, I agree with what you

said before. I know the facts of this

case better than anybody else. I also

agree that I will be at a disadvantage

as far as my knowledge of law and

the legal procedures, I feel I have no

choice in this matter. There has

been, up until the last few weeks no

investigation done in this case.

. . . 
9

[A]s I sated before I believe I’m selecting

the lesser of two evils. If Miss Bartos,

given the level of preparation she’s been

allowed and given the late discovery,

frankly, I think, I think the trial if it started

today with Miss Bartos representing me

would be a farce and mockery of justice.

. . . 

My contention is she was prevented from

giving me effective assistance by late

discovery, very late discovery by the fact

she wasn’t appointed until three years after

the arraignment; and by the fact that this

Court hasn’t given her the opportunity to

review the discovery, to do a proper

investigation.

I agree I’m selecting the lesser of two evils.

I know the facts and Miss Bartos, if given

an adjournment and given the opportunity

would know the facts as well as I do and if

she knew the facts as well as I do then I

think we’re prepared to go to trial.

. . . 

If Miss Bartos is my counsel, the final

decision is hers and I believe that some of
10

the decisions, and I don’t want to go into

our attorney-client relationship, but we

disagree on some of those decisions and I

think that disagreement would evaporate if

she was given a chance to study the facts. 

The Court: Mr. Pazden, let me say again to you

that it is my very distinct opinion

that it is unwise for you to represent

yourself and that you would be

better served if Miss Bartos served

as the attorney and you were

available to supplement her . . .

You’re not family [sic] with the Rules of

Evidence and you’re not familiar with the

Court Procedure; you’re certainly someone

who’s articulate and intelligent, that doesn’t

mean that you will do even an adequate job

in representing yourself, but the

consequences will fall on you if you are ill

served in this capacity under the law as I

read it, I can’t save you from yourself. It’s

your choice.

I would strongly urge you not to represent

yourself – in spite of that, is it still your

decision to represent yourself and be your

own lawyer?

Mr. Pazden: Yes, it is, your Honor.
11

The Court: And this decision is made by you

entirely voluntarily on your part?

Mr. Pazden: Yes, it is – well, again I’m selecting

the lesser of two evils.

The Court: All right.

App. 104-05, 108-09, 110-11.

In addition, in response to Pazden’s claim that Ms. Bartos

had not been afforded an adequate opportunity to prepare for

trial, the court responded:

I have personally witnessed

that Miss Bartos has put in

countless hours during the

week and on weekends. She

has a background in financial

matters, and I frankly think

you would be hard pressed to

find another attorney who

would devote themselves to

this case the way she has and

pour over this discovery the

way she has.

I personally am witness to

that because she is assigned

to this Court, aside from your

case, this is where she is
12

assigned.

App. 108.

The trial court ultimately permitted Pazden to proceed to

trial pro se with Ms. Bartos acting as stand-by counsel. The

court stated: “I’m satisfied that [Pazden’s decision to represent

himself] is something that is his voluntary choice. That it’s a

decision that he feels in his best interest under all of the

circumstances and that he is making intelligently.” Pazden

represented himself at the ensuing trial, and was subsequently

convicted on all 119 counts that were submitted to the jury. He

was thereafter sentenced to an aggregate prison term of sixteen

years.

Pazden appealed to the New Jersey Appellate Division.

Except for a remand to resolve a sentencing issue unrelated to

the instant habeas petition, the Appellate Division affirmed the

conviction, and the New Jersey Supreme Court denied review.

Pazden filed this petition in the District Court on

September 11, 2000. The court thereafter dismissed it as a

mixed petition because it contained both exhausted and

unexhausted claims. Pazden v. Maurer, No. 00-4435, slip. op.

at 28 (D.N.J. Sept. 6, 2001); see Crews v. Horn, 360 F.3d 146

(3d Cir. 2994) (discussing District Court’s discretion to dismiss

habeas petitions containing both exhausted and unexhausted

claims). The court granted leave to file an amended petition that

did not include the unexhausted claims, and Pazden filed a

second petition containing only the exhausted claims on

December 14, 2001. In the amended petition, Pazden
 The District Court’s opinion enumerates the claims Pazden 5

raised in his amended habeas corpus petition. Pazden v.

Maurer, No. 00-4435, slip op. at 11-12 (D.N.J. Sept. 25, 2003).

 Since Pazden filed his petition after the effective date of 6

AEDPA, the amendments to Title 28 contained in that act

govern our review of Pazden’s claim. See Lindh v. Murphy, 521

U.S. 320 (1997).

13

challenged the legality of his 1996 New Jersey state criminal

conviction on several grounds, including the two that are

presently before us. The District Court denied Pazden’s 5

petition and declined to issue a certificate of appealability. We

thereafter granted a certificate of appealability allowing Pazden

to appeal denial of his Sixth Amendment claim that he was

denied the right to counsel, as well as his speedy trial claim.

This appeal followed.

II. Jurisdiction and Standard of Review.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253.

The District Court had jurisdiction pursuant to 28 U.S.C. §§

2241 and 2254(a). Since the District Court dismissed Pazden's

petition without conducting an evidentiary hearing, our review

of the District Court's decision is plenary. See Marshall v.

Hendricks, 307 F.3d 36, 50 (3d Cir. 2002). We apply the same

standard of review as the District Court, pursuant to the 

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996).6
14

Under the relevant AEDPA amendments to § 2254: 

(d) An application for a writ of

habeas corpus on behalf of a

person in custody pursuant to the

judgment of a State court shall not

be granted with respect to any

claim that was adjudicated on the

merits in State court proceedings

unless the adjudication of the

claim--

(1) resulted in a decision that was

contrary to, 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). In Williams v. Taylor, 529 U.S. 362

(2000), the Supreme Court noted that “§ 2254(d)(1) places a

new constraint on the power of a federal habeas court to grant

a state prisoner’s application for a writ of habeas corpus with

respect to claims adjudicated on the merits in state court.” Id.

at 412. The Court explained:

Under § 2254(d)(1), the writ may

issue only if one of the following

two conditions is satisfied--the

state-court adjudication resulted in

a decision that (1) "was contrary to
15

. . . clearly established Federal law,

as determined by the Supreme

Court of the United States," or (2)

"involved an unreasonable

application of . . . clearly

established Federal law, as

determined by the Supreme Court

of the United States." Under the

"contrary to" clause, a federal

habeas court may grant the writ if

the state court arrives at a

conclusion opposite to that reached

by this Court on a question of law

or if the state court decides a case

differently than this Court has on a

set of materially indistinguishable

facts. Under the "unreasonable

application" clause, a federal

habeas court may grant the writ if

the state court identifies the correct

governing legal principle from this

Court's decisions but unreasonably

applies that principle to the facts of

the prisoner's case.

Id. at 412-13. 

In Matteo v. Superintendent, SCI Albion, 171 F.3d 877

(3d Cir. 1999) (en banc), we explained that a federal habeas

court makes two inquiries on habeas review under AEDPA:
16

First, the federal habeas court must

determine whether the state court

decision was "contrary to" Supreme

Court precedent that governs the

petitioner's claim. Relief is

appropriate only if the petitioner

shows that "Supreme Court

precedent requires an outcome

contrary to that reached by the

relevant state court." In the

absence of such a showing, the

federal habeas court must ask

whether the state court decision

represents an "unreasonable

application of" Supreme Court

precedent: that is, whether the state

court decision, evaluated

objectively and on the merits,

resulted in an outcome that cannot

reasonably be justified. If so, then

the petition should be granted.

171 F.3d at 891 (citations omitted).

Under the Matteo framework, in analyzing the "contrary

to" provision, we are required “first to identify the applicable

Supreme Court precedent and determine whether itresolves the

petitioner's claim.” Matteo, 171 F.3d at 888. For a state

prisoner to obtain habeas relief under the “contrary to”

provision:
 However, “it is not necessary for the petitioner to cite 7

factually identical Supreme Court precedent. Rather, the critical

question is whether a Supreme Court rule--by virtue of its

factual similarity (though not necessarily identicality) or its

distillation of general federal law precepts into a channeled

mode of analysis specifically intended for application to variant

factual situations--can fairly be said to require a particular result

in a particular case.” Matteo, 171 F.3d at 888 (citation and

internal quotations omitted).

17

[I]t is not sufficient for the

petitioner to show merely that his

interpretation of Supreme Court

precedent is more plausible than

the state court's; rather, the

petitioner must demonstrate that

Supreme Court precedent requires

the contrary outcome. This

standard precludes granting habeas

relief solely on the basis of simple

disagreement with a reasonable

state court interpretation of the

applicable precedent.

Id. (emphasis in original). 

7

If the federal habeas court

determines that the state court

decision was not contrary to the

applicable body of Supreme Court
18

law – either because the state court

decision complies with the

Supreme Court rule governing the

claim, or because no such rule has

been established – then the federal

habeas court should undertake the

second step of analyzing whether

the decision was based on an

unreasonable application of

Supreme Court precedent. 

Matteo, 171 F.3d at 889 (internal quotation marks omitted).

Our “unreasonable application of” inquiry does not, however,

authorize habeas relief simply because we might disagree with

the state court’s analysis, or because we would have reached a

different result in the first instance. Id. The inquiry is also not

intended to merely remedy “incorrect application of federal

law.” Williams, 529 U.S. at 410. Rather, the appropriate inquiry

is whether the state court’s application of Supreme Court

precedent was “objectively unreasonable.” Matteo, 171 F.3d at

889-90. “The federal habeas court should not grant the petition

unless the state court decision, evaluated objectively and on the

merits, resulted in an outcome that cannot reasonably be

justified under existing Supreme Court precedent.” Id. at 890.

III. Discussion.

Pazden argues that the state trial court violated his Sixth

Amendment right to counsel by forcing him to chose

between proceeding to trial without the requested

continuance or proceeding pro se, and that his Sixth
 We affirm the District Court’s denial of relief on Pazden’s 8

speedy trial claim substantially for the reasons set forth in the

District Court’s opinion. Accordingly, we need not discuss his

speedy trial claim further.

 It appears from the record before us that the state trial court 9

failed to even consider Johnson and its progeny in determining

whether Pazden could constitutionally proceed to trial pro se.

Rather, the trial court relied mainly on State v. Gallagher, 644

A.2d 103 (N.J. Super. 1994). As we discuss more fully below,

in Gallagher, the Appellate Division based most of its analysis

on Faretta, and only mentioned Johnson once in passing. See

Gallagher, 644 A.2d at 107-112. 

19

Amendment right to a speedy trial was denied by the

delay between his initial arraignment in 1991, his

indictment in 1993, and his trial in 1996. Pazden

contends that the state court’s denial of his claims was

contrary to, and an unreasonable application of, Supreme

Court precedent. We agree that Pazden’s right to counsel

under the Sixth and Fourteenth Amendments was

violated under the circumstances here. We think it clear 8

that, on this record, the state trial court’s determination

that Pazden’s waiver of counsel was voluntary was both

“contrary to” and “an unreasonable application of . . .

clearly established” Supreme Court pronouncements in

Johnson and Faretta. Pazden’s waiver was not a 9

product of a free and meaningful choice. Thus, his

decision to waive counsel and proceed pro se cannot be

deemed voluntary. 
20

A. The Applicable Legal Principles.

The Sixth Amendment provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have

Assistance of Counsel for his defense.” U.S. Const. Amend. VI.

Moreover, the Supreme Court has proclaimed that “the guiding

hand of counsel” must be made available in criminal trials to

those that can not afford to hire an attorney on their own.

United States v. Ash, 413 U.S. 300, 308 (1973); Gideon v.

Wainwright, 372 U.S. 335 (1963). “Compliance with this

constitutional mandate is an essential jurisdictional prerequisite

to a federal court’s authority to deprive an accused of his life or

liberty.” Johnson v. Zerbst, 304 U.S. 458, 467 (1938).

The Sixth Amendment is unique, however, because it not

only guarantees a substantive right - the right to counsel - it also

guarantees the converse right to proceed without counsel at trial.

“[T]he Constitution does not force a lawyer upon a defendant."

Faretta v. California, 422 U.S. 806, 814-15 (1975), (quoting

Adams v. United States ex rel. McCann, 317 U.S. 269, 279

(1943)). The Sixth Amendment thus embodies two competing

rights because exercising the right to self-representation

necessarily means waiving the right to counsel. Buhl v. Cooksey,

233 F.3d 783, 789 (3d Cir.2000). Concomitantly, proceeding to

trial represented by counsel as guaranteed under the Sixth

Amendment means that a defendant has not articulated a desire

to waive that right and exercise his/her right to proceed pro se.

“A waiver is ordinarily an intentional relinquishment or

abandonment of a known right or privilege” and must be the

product of a free and meaningful choice. Johnson, 304 U.S. at
21

464. “[C]ourts indulge every reasonable presumption against

waiver of fundamental constitutional rights.” Id. In order to

protect the right to counsel, the Constitution requires that any

waiver of that right be the product of the voluntary exercise of

free will. Faretta, 422 U.S. at 835.

It is axiomatic that a criminal

defendant's waiver of a

constitutional right must be

voluntary, knowing and

intelligent. Therefore, the

constitutional right of selfrepresentation in a criminal

case is conditioned upon a

voluntary, knowing and

intelligent waiver of the right

to be represented by counsel.

Buhl, 233 F.3d at 789. “If in a habeas corpus hearing, [a

petitioner] . . . convinces the court by a preponderance of

evidence that he neither had counsel nor properly waived his

constitutional right to counsel, it is the duty of the court to grant

the writ.” Johnson, 304 U.S. at 469. 

However, where appropriate, “[a] criminal defendant

may be asked, in the interest of orderly procedures, to choose

between waiver and another course of action.” Maynard v.

Meachum, 545 F.2d 273, 278 (1st Cir. 1976). Indeed, a

defendant cannot always obtain habeas relief by alleging that a

waiver was not voluntary because the trial court denied a

requested continuance and forced the defendant to decide
22

between proceeding pro se and proceeding with unwanted

counsel. 

Nevertheless, 

[a] clear choice between two

alternative courses of action does

not always permit a petitioner to

make a voluntary decision. If a

choice presented to a petitioner is

constitutionally offensive, then the

choice cannot be voluntary. A

defendant may not be forced to

proceed with incompetent counsel; a

choice between proceeding with

incompetent counsel or no counsel

is in essence no choice at all. The

permissibility of the choice

presented to the petitioner . . .

depends on whether the alternative

to self-representation offered

operated to deprive him of a fair

trial. 

Wilks v. Israel, 627 F.2d 32, 35 (7th Cir. 1980) (internal

citations omitted). 

Therefore, a reviewing court must be “confident the

defendant is not forced to make a choice between incompetent

counsel or appearing pro se.” United States v. Taylor, 113 F.3d
 In referring to defense counsel here as “incompetent” we 10

in no way intend to suggest anything about her ability or

professionalism. Rather, we are only referring to the fact that the

circumstances here (including the prosecution’s piecemeal

approach to tendering discovery) put her in a position where she

could not competently proceed to represent Pazden at trial

absent more time to adequately prepare. 

Indeed, from what we can determine from the trial

judge’s comments, Ms. Bartos is an exceptionally talented and

professional attorney who would have done a commendable job

of representing Pazden if she had been afforded a reasonable

opportunity to prepare for trial. 

23

1136, 1140 (10th Cir. 1997). The “court [must] decide 10

whether the defendant was bowing to the inevitable or

voluntarily and affirmatively waiving his right to counsel.”

United States v. Salemo, 61 F.3d 214, 222 (3d Cir. 1995)

(quotations omitted); see also United States ex rel. Martinez,

526 F.2d 750, 755-6 (2d Cir. 1975) (“appellant was given no

freedom of choice to decide whether he wished to defend

himself. His choice, if choice it can be called, was based

entirely on his bowing to the inevitable.”).

This imposes on the trial court, “the weighty

responsibility of conducting a sufficiently penetrating inquiry to

satisfy itself that the defendant’s waiver of counsel is knowing

and understanding as well as voluntary.” United States v.

Peppers, 302 F.3d 120, 130-31 (3d Cir. 2002). “A judge can

make certain that an accused’s professed waiver of counsel is

understandingly and wisely made only from a penetrating and
 In United States v. Welty, 674 F.2d 185 (3d Cir.1982), we 11

explained the two part inquiry a trial court must make to

determine if there is “good cause” to grant a requested

continuance on the eve of trial to afford a defendant an

opportunity to retain substitute counsel. Although Welty was

decided on direct appeal, “[t]he same standard for determining

whether a defendant waived his right to counsel applies in

federal court habeas corpus review of state court proceedings.

Piankhy v. Cuyler, 703 F.2d 728, 731 n.3 (3d Cir. 1983) (citing

Brewer v. Williams, 430 U.S. 387 (1977)).

However, the Welty two part inquiry is not relevant here

because it is clear from this record that Pazden did not request

substitute counsel. Rather, he relented to the trial court’s

insistence that trial proceed, and went to trial without the benefit

of counsel.

24

comprehensive examination of all the circumstances under

which such a plea is rendered.” Von Moltke v. Gillies, 332 U.S.

708, 724 (1948). In conducting this examination a court can

evaluate the motives behind defendant’s dismissal of counsel

and decision to proceed pro se. United States v. Stubbs, 281

F.3d 109, 117 (3d Cir. 2002). Moreover, although the record

here does not suggest that Pazden’s request for a continuance

was manipulative, we have cautioned that “even well-founded

suspicions of intentional delay and manipulative tactics can

provide no substitute for the inquiries necessary to protect a

defendant’s constitutional rights.” United States v. Welty, 674

F.2d 185, 189 (3d Cir.1982); see also Buhl, 233 F.3d at 796.11

Although, a trial court ruling on a request for a continuance may

certainly consider such factors as “the importance of the
 Pazden challenges only the voluntariness of his waiver, not 12

whether his waiver was knowing and intelligent. 

25

efficient administration of justice,” Buhl, 233 F.3d at 797, we

have also cautioned that “a myopic insistence upon

expeditiousness in the face of a justifiable request for delay can

render the right to defend with counsel an empty formality.”

Martinez, 526 F.2d at 755. 

B. Pazden’s Request.

Here, Pazden argues that he “merely bowed to the

inevitable” when he “opted to represent himself at the trial of

this complex, 133-count indictment,” because he was confronted

with “the unconstitutional dilemma of either representing

himself or proceeding to trial with assigned counsel who

admitted being unprepared and unfamiliar with the record.”

Therefore, according to Pazden, his decision to waive counsel

and represent himself was not “voluntary in the constitutional

sense.” 

12

As we noted above, Pazden’s court-appointed attorney,

Ms. Bartos, stated several times on the record that she could not

be prepared to go to trial given the trial date. Specifically, Ms.

Bartos contended that she was hampered by (1) the

prosecution’s refusal to furnish timely discovery; (2) the

prosecution’s furnishing of discovery in a piecemeal fashion and

(3) her inability to interview all 560 witnesses on the witness list
 Ms. Bartos’s co-counsel, Mr. Smith, explained to the state 13

trial court that, “the number of witnesses that will be called by

the defense may range anywhere to 50 to 150 . . . Those

witnesses have . . . outstanding documents . . . we need to

interview those witnesses . . . It’s my opinion that . . . we will

not be ready to try this case on February 13.” Mr. Smith added,

“[t]here are a number of outstanding requests for discovery . . .

There are thousands of documents to be reviewed and I just

don’t see how, even with two attorneys working on this case it

could be ready by the 13 .” th

App. 262. 

26

before trial was to begin. In a letter to the trial court dated 13

January 29, 1996, Ms. Bartos explained that she would be

requesting a postponement of the trial date because, inter alia,

[o]n January 26, 1996, the

Prosecutor’s Office, in the guise of

delivering discovery relevant to the

new Indictment . . . delivered to

defense counsel a packet of

discovery . . . Items 13 through 37

obviously relate to [the old

Indictment] and, while presumably

in the possession of the Prosecutor

during the duration of these

proceedings, have only now been

delivered to defense counsel on

January 26, 1996 – some 18 days
27

prior to the date scheduled for trial.

More importantly, a review of the

information contained in Items 13

and 33 raise crucial issues

concerning the processing and

approval of the Public Offering

Statement by the Department of

Community Affairs and alert the

defense to the existence of certain

documents. These documents are

not a portion of the discovery

supplied by the Prosecutor’s Office

and are not in the possession of the

defense. Having been alerted by

this discovery provided by the

Prosecutor’s Office of the

importance of these documents,

defense counsel would not be

acting in the best interest of the

client nor providing able and

effective counsel in proceeding to

trial at this time. 

App. 252.

In response to this discovery, Ms. Bartos issued a

subpoena to obtain all the files of the Department of Community

Affairs that pertained to the registration and approval of the

Riverview Village project. She thereafter learned from an

employee of Community Affairs that some of the documents

were in the possession of the Office of the Attorney General;
 We recognize that one of the reasons Ms. Bartos was left 14

with so little time to interview the potential witnesses was

Pazden’s failure to supply her with the witness list until January,

1996. However, as already noted, Ms. Bartos’s request for a

continuance was based on factors that were primarily beyond

her, or Pazden’s, control.

28

therefore, Community Affairs could not provide them to the

defense at that time. Ms. Bartos also explained to the state trial

court that the “documents are critical to the defense . . . not only

in the preparation of the defense, but their availability is

essential in the cross-examination of the States’ witnesses.”

App. 252. Additionally, Ms. Bartos explained to the court that,

because the witness list consisted of 560 names, “it would have

been virtually impossible for [her] to contact, to interview, to

evaluate in assessing those witnesses appearing in that very,

very short period of time.” App. 116-17. 14

Nevertheless, the court denied Ms. Bartos’s request for

a continuance. Consequently, believing that he was then better

prepared for trial than Ms. Bartos, Pazden “chose to” represent

himself and proceed to trial with Ms. Bartos acting as stand-by

counsel. Pursuant to the Supreme Court’s decision in Von

Moltke, the trial court conducted an inquiry to “decide whether

[Pazden] was bowing to the inevitable or voluntarily and

affirmatively waiving his right to counsel.” See Von Moltke,

332 U.S. at 722; Salemo, 61 F.3d at 220. That colloquy is set

forth at length above. See pp 6-8, supra. Upon concluding this

colloquy, the court found, “with regard to [Pazden’s] choice 

to represent himself, I’m satisfied that this is something that is
 In her dissenting opinion, Judge Rendell writes, “I wonder 15

whether a defendant who has three years to prepare for trial, can

legitimately complain that his Sixth Amendment rights were

violated based on his decision to represent himself because

counsel was not prepared.” Dissent at 2. Her concern is well

taken. However, this record is replete with statements, not only

from Pazden, but also from Ms. Bartos (and her colleague Mr.

Smith), that enumerate the reasons for asking for a three month

trial delay. As noted above, these reasons included the

29

his voluntary choice.” 

C. Analysis.

Clearly, under Faretta, Pazden had the right to waive

counsel and proceed to trial pro se. However, Pazden could

only have done so if he was “voluntarily exercising his informed

free will.” See Faretta, 422 U.S. at 835. “[T]here can be no

doubt that [those who wrote the Bill of Rights] understood the

inestimable worth of free choice.” Id. at 833. Here, Pazden was

not exercising his free will, but was instead compelled to

proceed pro se only because his attorney had not been given

enough time to familiarize herself with the relevant background

of his case. The record here support’s Pazden’s contention that

his decision to proceed pro se was not an exercise of free will,

rather it was the result of him “bowing to the inevitable.” This

record is replete with statements and submissions by Pazden’s

attorney explaining that she was unprepared to proceed to trial,

as well as statements by Pazden explaining the dilemma he was

placed in by the late discovery and the inflexible trial date. 

15
prosecution’s refusal to furnish timely discovery, the

prosecution’s furnishing of discovery in a piecemeal fashion,

and defense counsel’s inability to interview all of the witnesses

on the witness list before the trial was to begin. See pp 4-6, 19-

21, supra. Accordingly, we cannot agree with the dissent’s

conclusion that “[i]t was the impossibility of interviewing [all of

the witnesses on the witness list that Pazden provided to Ms.

Bartos] that was at the heart of [Ms. Bartos’s] purported

inability to proceed in mid-February.” Dissent at 1. Ms.

Bartos’s inability to interview all of those witnesses was merely

one of a number of factors that lead to her request. 

Moreover, the trial court could have conducted a more

thorough inquiry and determined if there was “good cause” for

the requested continuance. Thus, notwithstanding the dissent’s

understandable concerns, absent a more probing inquiry than

was conducted here, this record simply does not support a

conclusion that Pazden’s waiver of his Sixth Amendment right

to counsel was voluntary.

30

Pazden explained that he was compelled to proceed pro

se by the fact that counsel “was prevented from giving [him]

effective assistance by late discovery . . . and by the fact that this

Court hasn’t given her the opportunity to review the discovery,

to do a proper investigation.” App. 108. Nevertheless, he

emphasized that “Miss Bartos, if given an adjournment and

given the opportunity would know the facts as well as [he did]

and if she knew the facts as well as [he did] then [he would be]

prepared to go to trial.” App. 109. In addition, he believed that

disagreements with some of Ms. Bartos’s decisions “would

evaporate if [Ms. Bartos] was given a chance to study the facts.”
 Appellees argue that Pazden’s “claim of selecting the lesser 16

of the two evils by appearing pro se is plainly a ruse – an

attempt to build a record by an arrogant, highly intelligent, but

morally bankrupt, criminal who throughout this trial tried to

manipulate and deceive the trial Court.” Appellees’ brief at 37.

That “argument” is, of course, neither relevant to our inquiry,

nor does it qualify as legal argument. Rather, it is a gratuitous

ad hominem attack that detracts from the persuasiveness of the

government’s argument as well as the professionalism of its

presentation. We should not have to remind officers of the court

that such personal comments have little place in an appellate

brief. 

Moreover, even if the thrust of what the government is

apparently trying to convey was appropriate, it would still be

irrelevant. We remind the appellees that we have previously

noted that “[e]ven well-founded suspicions of intentional delay

and manipulative tactics can provide no substitute for the

inquiries necessary to protect a defendant’s constitutional

rights.” Welty, 674 F.2d at 189; see also Buhl, 233 F.3d at 796.

31

However, as Pazden expressed, the court’s denial of Ms.

Bartos’s request for a three-month adjournment forced him to

choose between the “lesser of two evils,” effectively leaving

him with “no choice in th[e] matter” at all. App. 105, 108, 16

109, 111. This hardly constitutes a voluntary choice to waive

one’s Sixth Amendment right to counsel under Faretta, and it is

inconsistent with teachings of Johnson.

As we noted above, supra at n.9, in deciding whether

Pazden could constitutionally proceed to trial pro se, the state
 The trial court’s ruling was affirmed in an unpublished 17

opinion that neither side included in any appendix filed with us

for this appeal. Moreover, during argument, counsel represented

that the decision of the appellate court does not add to the trial

court’s analysis. Accordingly, we focus on the state trial court’s

reasons for denying Pazden’s Sixth Amendment claim. 

32

trial court relied upon State v. Gallagher, 644 A.2d 103 (N.J.

Super. 1994). However, Gallagher does not furnish the 17

controlling rule of law. There, the defendant was charged with

various racketeering offenses along with fourteen others in a

multi-count indictment. Id. at 104-05. However, charges

against all of the other defendants were dismissed and only

Gallagher proceeded to trial. Prior to trial, the trial court granted

his request to proceed pro se. Id. at 106. In making that request,

Gallagher informed the court that he had successfully

represented himself in two other federal criminal trials, he had

completed two years of law school, and that he was currently

representing himself in an ongoing federal racketeering trial. Id.

After warning Gallagher of the dangers inherent in proceeding

without counsel, the court appointed standby counsel and

allowed him to represent himself. However, following an

exchange of letters and a dispute over some motions that

Gallagher wanted to file, the trial court rescinded that order and

required Gallagher to proceed to trial represented by defense

counsel. Id. at 107. The court concluded that Gallagher “did

not ‘appreciate the ins and outs of . . . motion practice.’” Id.

(ellipsis in original). 

On appeal, the Appellate Division of the Superior Court
 It is, of course, the issue here. 18

 The Appellate Division’s reliance on Faretta was therefore 19

appropriate because in Faretta, as in Gallagher, the trial court

rescinded a prior order granting the right to proceed pro se and

required the defendant to proceed to trial represented by counsel

based upon the concerns that the defendant could not adequately

represent himself. See Faretta, 422 U.S. at 808-09.

33

of New Jersey reversed, concluding that the trial court’s

revocation of the order allowing Gallagher to proceed pro se

was contrary to Faretta. The appellate court explained that

“Faretta holds that a state may not constitutionally impose a

lawyer upon an unwilling defendant.” Id. at 108. The court did

not discuss whether Gallagher’s initial waiver had been

voluntary; that was not the issue. Rather, the court explained 18

that it was deciding “defendant’s contention that he was denied

his Sixth Amendment right to represent himself.” Id. at 106.

There was never any dispute about whether his waiver of

counsel had been voluntary or the result of an unconstitutional

dilemma such as the one presented here because his sole Sixth

Amendment argument was that he had not been allowed to

waive counsel.19

Here, the state court believed that Faretta controlled

Pazden’s appeal. However, Faretta involved a defendant who

was denied his right to proceed pro se and was forced instead to

proceed to trial with defense counsel. Following conviction, the

Supreme Court held that the Sixth Amendment right to counsel

includes the right to represent oneself in a criminal trial.
34

Faretta, 422 U.S. at 836. Faretta does not control where, as

here, a defendant’s decision to proceed pro se is “involuntary”

in the constitutional sense. That requires an inquiry into the

voluntariness of Pazden’s purported waiver of counsel. 

Moreover, the trial court’s conclusion that Pazden waived

his right to defense counsel was “contrary to” the Supreme

Court’s decision in Johnson, 304 U.S. 458. Johnson instructs

that the trial judge has “the serious and weighty responsibility”

of determining if a defendant’s right to counsel has been

waived, and prohibits forcing a defendant to trial absent a valid

waiver of this Sixth Amendment right. Id. at 465. Johnson

requires that we “indulge every reasonable presumption against

waiver of fundamental constitutional rights and that we do not

presume acquiescence in the loss of fundamental rights.” Id. at

464 (internal quotation marks omitted). As the Court explained

there: 

Since the Sixth Amendment

constitutionally entitles one

charged with crime to the

assistance of counsel, compliance

with this constitutional mandate is

an essen t i a l ju risd i c tional

prerequisite to a federal court's

authority to deprive an accused of

his life or liberty. When this right

is properly waived, the assistance

of counsel is no longer a necessary

element of the court's jurisdiction to

proceed to conviction and sentence.

If the accused, however, is not
35

represented by counsel and has not

competently and intelligently

waived his constitutional right, the

Sixth Amendment stands as a

jurisdictional bar to a valid

conviction and sentence depriving

him of his life or his liberty. 

304 U.S. at 467-468. In Salemo, we explained that “[a]

defendant will not normally be deemed to have waived the right

to counsel by reluctantly agreeing to proceed pro se under

circumstances where it may appear that there is no choice.” 61

F.3d at 221. We explained: 

[t]he Court[] has scrupulously

required that a defendant's waiver

of counsel be both voluntary and a

"know i ng and i n t e lli g e n t

relinquishment or abandonment of

a known right or privilege."

Edwards v. Arizona, 451 U.S. 477,

482, 101 S.Ct. 1880, 1883-84, 68

L.Ed.2d 378 (1981). Whether a

d e f e ndant ha s v o lu n t a rily,

knowingly and intelligently

relinquished the right to counsel

"depends in each case 'upon the

particular facts and circumstances

surrounding that case, including the

background, experience, and

conduct of the accused.' " Id.
 See also Wilks, 627 F.2d at 36 (“A clear choice between 20

two alternative courses of action does not always permit a

petitioner to make a voluntary decision. If a choice presented to

a petitioner is constitutionally offensive, then the choice cannot

be voluntary . . . The permissibility of the choice presented to

the petitioner . . . depends on whether the alternative to selfrepresentation offered operated to deprive him of a fail trial.”);

Maynard, 545 F.2d at 278 (“[a] criminal defendant may [not] be

asked . . . to choose between waiver and another course of

action [if] the choice presented to him is . . . constitutionally

offensive.”); United States ex rel. Martinez, 526 F.2d at 756

(appellant’s choice, “if choice it can be called, was based

entirely on his bowing to the inevitable.”).

36

Salemo, 61 F.3d at 218. In citing Edwards, we noted that the

Court was there quoting Johnson, 304 U.S. at 464.

 Similarly, in Sanchez v. Mondragon, 858 F.2d 1462,

1465 (10th Cir. 1988), reversed on other grounds, the court

explained, “[a] choice between incompetent or unprepared

counsel and appearing pro se is a dilemma of constitutional

magnitude. The choice to proceed pro se cannot be voluntary in

the constitutional sense when such a dilemma exists.” (Internal

citations and quotations omitted).20

As we explained above, the trial court did inquire into

whether Pazden knowingly, intelligently and voluntarily

relinquished his Sixth Amendment rights. However, in

conducting the inquiry, the trial judge either ignored Pazden’s
 Despite the dissent’s concerns, the trial judge did not 21

conclude that Pazden was “agreeing” to proceed pro se as a

strategy or tactic and not because of a genuine belief that

defense counsel was not sufficiently prepared to represent him.

Moreover, the prosecution’s approach to discovery is certainly

consistent with defense counsel’s concerns about being able to

adequately represent Pazden. We therefore conclude that this

record is simply not sufficient to establish that Pazden’s decision

to waive counsel and proceed pro se was voluntary.

37

answers or failed to realize their constitutional significance.21

As a result, the trial court’s rejection of Pazden’s Sixth

Amendment claim was contrary to the pronouncements of

Johnson. Pazden’s waiver of counsel was not voluntary in the

constitutional sense. Moreover, to the extent the state court

relied upon Faretta, its decision is an unreasonable application

of the rule the Court announced there because Faretta does not

apply here. “[I]t is [therefore] the duty of [this] court to grant

the [habeas corpus] writ.” Johnson, 304 U.S. at 469. 

IV. Conclusion.

For the reasons set forth above, we will reverse the

District Court’s denial of federal habeas relief and remand

with instructions to grant the writ if the defendant is not

retried in 180 days. 
38

Pazden v. Maurer, No. 03-4236 - dissenting

RENDELL, Circuit Judge.

The instant matter unfortunately falls into the category of

cases which exemplify the adage that “bad facts make bad law,”

Haig v. Agee, 453 U.S. 280, 319 (1981), and therefore, I

respectfully dissent. Michael Pazden has advanced two strong,

but diametrically opposed, arguments. He first urges that he was

forced to proceed to trial, and to defend himself pro se because

his lawyer did not have sufficient time to prepare, three years

after he was indicted. Second, he contends that his right to a

speedy trial was violated based on the fact he was not afforded

a trial for three years. This should, if nothing else, give us

pause. I find Pazden’s sense of compulsion – which he

repeatedly characterized as a choice “between the lesser of two

evils” – to be misplaced. (Michael Pazden, Trans. Feb. 15, 1996

at 30) The only compulsion sincerely felt here was by the trial

judge, who, as those of us who have been trial judges may

recognize, are faced with defendants who set traps for the

unwary. In my view, which I believe is supported by the record,

Michael Pazden faced no real evils; rather, he was intent on

making his case for just what the majority has ordered. 

While it is true that some discovery was not turned over

until September 1994, and still other items in January of 1995,

nonetheless Ms. Bartos noted that the witness list – of 560

names – was not provided by her own client, Michael Pazden,

until January 1995. It was the impossibility of interviewing

them all that was at the heart of her purported inability to

proceed in mid-February. In addition, many of the records in the
 In fact, during the trial, at the direction of the trial judge, a 22

lieutenant was dispatched to Pazden’s residence where records

including canceled checks, bank statements, registers and stubs

were located notwithstanding Pazden’s insistence that he was

not in possession of such records. As noted by the prosecutor,

“95 percent of the evidence in this case comes from

Mr. Pazden.” (Attorney Snowden, Trans. Feb. 15, 1996 at 39.)

39

case were located in Pazden’s house. The numerous counts in 22

the indictment were based on the number of victims, not the

complexity of Pazden’s scheme. The prosecutor in this case,

who was assigned the matter in December 1994, three months

after Ms. Bartos began to represent Pazden, conducted more

than 50 interviews in a short span of time and was prepared to

proceed. (Attorney Snowden, Trans. Feb. 15, 1996 at 39.) 

Although I agree with the majority that ad hominem

attacks should not be employed to undermine constitutional

rights, nonetheless, I wonder whether a defendant who has three

years to prepare for trial and does not give counsel a witness list

until one month before trial, can legitimately complain that his

Sixth Amendment rights were violated based on his decision to

represent himself because counsel was not prepared. Viewed

from a slightly different vantage point, perhaps we have before

us nothing more than a judicial decision not to grant a

continuance in the exercise of a court’s discretion, and in the

face of a companion speedy trial argument. I note that the

majority focuses on Pazden’s choice, not the colloquy or his

understanding of what he was embarking upon, so I question the

applicability of either Johnson or Faretta. Instead, I would
40

suggest that the constitutional inquiry actually should be

somewhat broader and explore “voluntariness,” by considering

whether Pazden did voluntarily make his decision by virtue of

his own dilatory conduct. And, in any event, I am unable to

locate any Supreme Court opinion either on point, or that has

announced a principle that applies here, such that I do not

believe Judge Marmo’s proceeding to trial, with Pazden

representing himself, was “contrary to” or an “unreasonable

application” of established Supreme Court precedent.