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Pazden v. Maurer

September 27, 2005

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.

The opinion of the court was delivered by: McKee, Circuit Judge

PRECEDENTIAL

Argued: March 8, 2005

Before: NYGAARD*fn1, McKEE and RENDELL, Circuit Judges

OPINION

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*fn2

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 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.*fn3 Pazden 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 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.

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.*fn4 She was 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, 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 could be ready by the 13th, and 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.

[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 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 ...


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