Habeas corpus; Self-representation; Faretta v California; Explicit & unequivocal demand; Timeliness of a request; The state supreme court’s conclusion that the request was a delay tactic; Whether petitioner abandoned any intent to represent himself; Reliance on McKaskle v Wiggins

Holding that petitioner-Cassano properly invoked his constitutional right to self-representation and his rights under Faretta were violated, entitling him to relief, the court reversed the district court’s denial of his habeas petition and conditionally granted his petition, unless Ohio retries him within six months. He was convicted of aggravated murder and received a death sentence. The court found that he twice properly invoked his constitutional right to self-representation. First, on 5/14/98, he filed a Waiver of Counsel. In rejecting his claim, the Ohio Supreme Court (OSC) “never mentioned the Waiver of Counsel,” and the court found that it “‘inadvertently overlooked’” the document, with the result that AEDPA deference did not apply to this claim. As to the merits, the “Waiver of Counsel was undoubtedly a clear and unequivocal invocation of Cassano’s constitutional right to self-representation.” Although he “separately requested the appointment of substitute counsel, there is no way to know from the record which motion was filed first.” As a result, once he “filed his unequivocal Waiver of Counsel, and with no definitive later indication that Cassano no longer wished to represent himself, the trial court was required to conduct a Faretta hearing. Because” it denied his 5/14/98 “Waiver of Counsel without holding a Faretta hearing,” his conviction could not stand. He also made an unequivocal request during a 4/23/99 pretrial hearing when he “asked the trial court: ‘[i]s there any possibility I could represent myself? I’d like that to go on record.’” The trial court improperly denied this “request because it did not believe that self-representation was in his ‘best interest.’” The court held that nothing about his “request was unclear or equivocal, and no fairminded jurist could conclude otherwise.” Further, given that the OSC’s timeliness ruling “was based on an unreasonable determination of the facts—that the [4/23/99] invocation was Cassano’s first time mentioning self-representation—this reason for denying” his claim was not entitled to AEDPA deference. It also “unreasonably applied the law because it ignored the trial court’s contribution to” his allegedly untimely request. And no fairminded jurist could find that this “request was merely a delay tactic as opposed to a legitimate request” given that he had sought to represent himself as far back as 5/14/98. Finally, McKaskle did not support the OSC’s conclusion that he “abandoned any intention to represent himself when he did not pursue the issue” after the trial court said it would not be a good idea.