En banc review is rare in the Sixth Circuit, but this week the Court granted a petition for en banc rehearing filed by Michigan’s Attorney General in a habeas appeal involving the constitutional right to self-representation. See Hill v. Curtin, Case No. 12-2528 (6th Cir.) (PDF).
In 2007, a Michigan jury convicted Thomas Hill of armed robbery and carjacking after deliberating for 37 minutes. The conviction netted Hill a sentence of 20 to 40 years. Hill appealed, arguing that the Michigan trial court violated his Sixth Amendment right to self-representation, as recognized by the Supreme Court in Faretta v. California, 422 U.S. 806 (1975), when the trial court denied his request through trial counsel that he be allowed to represent himself. Hill’s direct appeals were unsuccessful. The Michigan Supreme Court held that Hill’s request to represent himself was untimely because it was made as trial was beginning and the potential jurors were being admitted to the courtroom. After exhausting his remedies in the Michigan state court system, Hill filed a pro se habeas petition in the U.S. District Court for the Eastern District of Michigan, once again asserting a violation of his Sixth Amendment right to represent himself at trial. The district court denied Hill’s petition, and Hill appealed to the Sixth Circuit.
In an unreported opinion decided without oral argument, a three-judge panel of the Sixth Circuit reversed the district court and conditionally granted Hill’s habeas petition. The panel noted that under the Supreme Court’s decision in Faretta, when a defendant announces an unequivocal intention to assert the constitutional right to self-representation, the trial court is required to determine whether the defendant’s decision to represent himself is knowing, intelligent, and voluntary. The panel held that “the Michigan Supreme Court’s conclusion that Hill’s right to self-representation was not violated was an unreasonable application of Faretta’s mandate that the trial court must investigate a litigant’s request to proceed without counsel.” Hill thus was entitled to relief under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 (commonly known as the AEDPA).
Why did the Sixth Circuit agree to hear Hill’s case en banc? One reason may be the question of whether Supreme Court precedent governs Hill’s case. Under the AEDPA, a federal court may not grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless it (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” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). As the language of the AEDPA makes clear, federal courts are restricted to clearly established federal law as determined by the Supreme Court. The panel in this case identified the Supreme Court’s Faretta decision no less than 11 times in its opinion. On the other hand, the panel also stated that “[a]lthough the Supreme Court has yet to elaborate on the exact point at which a request for self-representation is no longer timely, this court and our sister circuits have held that a request for self-representation is timely if it is made prior to the time the jury is selected and sworn in—and jeopardy attaches—unless the prosecution can demonstrate that the request is merely a delay tactic.” Thus, the issue before the en banc court may be whether Faretta sets forth the clearly established rule governing the facts of Hill’s case. How broadly or narrowly should Faretta be read? May the Sixth Circuit consider its own precedents to the extent that they do no more than apply the rules already established by the Supreme Court? As you can probably gather, oral argument in this case will be lively.
The Hill case is scheduled to be argued before the en banc court on December 3, 2014, and the full Court’s decision could have a significant impact on countless prisoners who are seeking relief in the Sixth Circuit. We’ll be following closely. For more information on the “ins and outs” of seeking en banc review in the Sixth Circuit, check out our “ultimate guide to en banc practice in the Sixth Circuit,”.
