United States of America v. Robert Phillip Ivers

United States Court of Appeals
For the Eighth Circuit
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No. 21-3478
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Robert Phillip Ivers
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: May 11, 2022
Filed: August 10, 2022
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Before ERICKSON, MELLOY, and KOBES, Circuit Judges.
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MELLOY, Circuit Judge.
This appeal arises from Robert Ivers’s third revocation of supervised release
hearing. Mr. Ivers alleges that during the third revocation hearing, the district court
violated his right to due process because it forced him to proceed either with an
incompetent attorney or without any attorney at all. Because we find Mr. Ivers was
denied the right to counsel, we reverse.

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I.
Mr. Ivers was convicted of threatening to murder a federal judge and interstate
transmission of a threat. The district court sentenced Mr. Ivers to 18 months’
imprisonment, followed by three years of supervised release. Mr. Ivers began his
term of supervision in August 2019. The district court revoked his supervised release
twice. He was last released from prison on September 7, 2021.
On September 10, 2021, the U.S. Probation Office petitioned to revoke Mr.
Ivers’s supervised release for a third time. The Probation Office alleged that Mr.
Ivers had violated the terms of his supervised release in three ways: (1) failure to
follow the instructions of the Probation Officer; (2) failure to reside in a residential
reentry center; and (3) failure to maintain appropriate communications with the
Probation Officer.
The district court held a revocation hearing on October 18, 2021. Mr. Ivers
appeared at the hearing with appointed counsel. His appointed attorney was not the
same attorney who had represented Mr. Ivers in his previous revocation proceedings.
At the beginning of the hearing, Mr. Ivers’s attorney informed the district court that
Mr. Ivers did not want the attorney to represent him.
Mr. Ivers agreed. He told the district court he wanted his previous attorney to
represent him because “[s]he knows my case inside and out.” Mr. Ivers stated that
he did not want his new attorney because the attorney had “acknowledged that he
doesn’t know anything about my case.” Particularly, Mr. Ivers expressed concern
because the appointed attorney did not know what the charges against Mr. Ivers were.
The attorney admitted he told Mr. Ivers that he “was as dumb as a doorbell or a
doorknob.” According to Mr. Ivers, the attorney also said that he slid through law
school and that Mr. Ivers would have to “pick the big house or the nut house.” Mr.
Ivers eventually asked if he could have a different attorney.
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The district court gave Mr. Ivers a choice: he could have his appointed
attorney represent him, or he could represent himself “but [he had] to pick one or
the other.” Mr. Ivers opted for self-representation, although he did indicate he
“wouldn’t mind having a qualified attorney sit next to” him. Based on Mr. Ivers’s
statement, the district court conducted a Faretta colloquy with Mr. Ivers. See Faretta
v. California, 422 U.S. 806 (1975). The district court confirmed that Mr. Ivers
understood he had a right to an attorney at government expense, he could be
incarcerated if the court found he violated supervised release, and the hearing would
be governed by the Federal Rules of Evidence and Federal Rules of Criminal
Procedure. The district court advised Mr. Ivers it was unwise for him to represent
himself. Mr. Ivers confirmed he wanted to represent himself. The district court
found that Mr. Ivers knowingly and voluntarily waived his right to counsel.
The appointed counsel did not dispute Mr. Ivers’s statement that the attorney
did not know the charges, nor did the district court conduct a colloquy with the
attorney. The district court did not inquire about the attorney’s understanding of the
charges against Mr. Ivers or the attorney’s competency to represent Mr. Ivers.
II.
When a defendant waives his right to counsel at a revocation hearing, we
review the district court’s decision to accept that waiver for abuse of discretion.
United States v. Owen, 854 F.3d 536, 542 (8th Cir. 2017).
Defendants have a statutory right to counsel in revocation of supervised
release hearings. Id. at 541; see also 18 U.S.C. § 3006A(a)(1)(E); Fed. R. Crim. P.
32.1(b)(2)(D). Although this right does not arise from the Sixth Amendment, waiver
of the right does implicate liberty interests. Owen, 854 F.3d at 542. Therefore, when
a defendant waives his right to counsel at a revocation hearing, “we must examine
whether the district court’s acceptance of that waiver violated his right to due
process.” Id. The due process inquiry is flexible and “focuse[s] on the fundamental
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fairness of the hearing.” Id. (quoting United States v. Boultinghouse, 784 F.3d 1163,
1172 (7th Cir. 2015)).
A waiver of the right to counsel in revocation proceedings “must be knowing
and voluntary as demonstrated either through a colloquy with the district court, or by
the totality of the circumstances, or both.” Id. at 543 (quoting United States v.
Hodges, 460 F.3d 646, 648 (5th Cir. 2006)). Although the right is not constitutional,
“Sixth Amendment cases which elaborate on the requirements for a knowing and
voluntary waiver of one’s right to an attorney remain relevant in the revocation
context.” Id. at 542 (quoting Boultinghouse, 784 F.3d at 1172).
A defendant “does not have an absolute right to counsel of his own choosing.”
Id. (quoting United States v. Mentzos, 462 F.3d 830, 839 (8th Cir. 2006)). Therefore,
the district court does not violate the right to counsel when it gives a defendant the
choice “between adequate representation and self-representation.” Id. (quoting
Mentzos, 462 F.3d at 839). The choice is not voluntary, however, if the district court
forces a defendant to choose inadequate counsel or no counsel. Id. To show his
waiver of the right to counsel was involuntary, a defendant must show the district
court forced him to choose between inadequate representation and self-representation.
Id. Thus, to show a violation of the right to counsel, the defendant must show
justifiable dissatisfaction with his attorney. Id.
III.
Mr. Ivers has shown he was justifiably dissatisfied with his attorney. This is
not a case where the evidence shows a defendant who disagrees with his attorney’s
strategy or wants to delay the hearing. Instead, the evidence shows an attorney who
was not prepared to handle a revocation of supervised release hearing. The attorney
stated he “was as dumb as a doorbell or a doorknob” and told Mr. Ivers that Mr. Ivers
would have to “pick the big house or the nut house.” The attorney did not know
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anything about Mr. Ivers’s case or what conditions of supervision Mr. Ivers had
allegedly violated.
Under these circumstances, Mr. Ivers’s appointed attorney was unprepared to
handle the revocation hearing. In these hearings, an attorney unaware of the alleged
violations cannot adequately defend against them or make adequate mitigation
arguments. The attorney’s comment regarding “the big house or the nut house”
demonstrates he did not know the factual background of the case or the potential
consequences that Mr. Ivers was facing. Because Mr. Ivers was forced to proceed
with either this unprepared attorney or no attorney at all, Mr. Ivers’s decision to
waive his right to counsel was not knowing and voluntary and his right to due process
was violated.1
IV.
Mr. Ivers has shown justifiable dissatisfaction with his attorney. His decision
to waive his right to counsel was, therefore, not knowing and voluntary.
1The dissent makes the point that there is no prejudice in this case because the
evidence of Mr. Ivers’s violation of the terms of his supervised release is
overwhelming. However, a review of the transcript of the supervised revocation
hearing shows the prejudice resulting from lack of counsel. Mr. Ivers appears to have
attempted to show that there was confusion as to whether he was required to report
to a halfway house or could live with his sister (where he was living at the time of his
arrest) and that he had serious medical issues (including bladder cancer) that either
excused or mitigated his violation. The transcript shows the great difficulty Mr. Ivers
had in getting exhibits authenticated and admitted into evidence and framing
questions in a way that did not lead to sustainable objections. At a minimum a
competent attorney may have been able to more effectively advocate for a sentence
of less than a full additional year in prison, particularly given Mr. Ivers’s age and very
serious medical issues.
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Accordingly, we reverse the revocation judgment and remand for further
proceedings.2
KOBES, Circuit Judge, dissenting.
I respectfully dissent.
Even assuming that the district court abused its discretion by allowing Ivers to
represent himself at the revocation hearing, we reverse for a violation of a statutory
right to counsel only on a showing of prejudice. See United States v. Brown, 710 F.
App’x 722, 723 (8th Cir. 2018) (per curiam) (citing Njoroge v. Holder, 753 F.3d 809,
812 (8th Cir. 2014) (holding that a showing of prejudice is required before reversing
due to a violation of the statutory right to counsel in immigration proceedings)). As
we have explained in the context of the statutory right to counsel in immigration
proceedings:
“Actual prejudice exists where defects in the deportation proceedings
may well have resulted in a deportation that would not otherwise have
occurred.” The Ninth Circuit has similarly defined “prejudice” as an
error that “potentially affects the outcome of the proceedings,” and the
Seventh Circuit has defined it as an error that “had the potential for
affecting the outcome of the hearing.”
2Mr. Ivers filed several pro se motions in this court. Mr. Ivers’s March 7
“Motion for Early Release Pending Motion to Set Aside Previous Convictions” is
denied. Mr. Ivers’s March 8 “Motion to Have Mr. Ivers Convictions Set Aside” is
denied. Mr. Ivers’s April 26 “Motion for Time Served” is denied as moot. Mr.
Ivers’s April 29 “Motion for Hard Time Credit” is denied without prejudice as to Mr.
Ivers’s ability to seek the requested relief upon remand to the district court.
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Al Khouri v. Ashcroft, 362 F.3d 461, 466 (8th Cir. 2004) (first quoting United States
v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir. 1995); then quoting Agyeman v. INS,
296 F.3d 871, 884 (9th Cir. 2002); and then quoting Ambati v. Reno, 233 F.3d 1054,
1061 (7th Cir. 2000)) (emphasis omitted) (cleaned up).
There was no prejudice. This was Ivers’s third revocation. The petition to
revoke was filed a mere three days after he was released from prison. And there was
no question that Ivers violated his terms of release. He never showed up to a re-entry
facility and instead headed for his sister’s, eventually taking time to leave an
expletive-laden, threatening voicemail for his probation officer. Based on this
undisputed record, the district court was entirely justified in revoking supervised
release. It was not a close call.
Nor was the above-Guidelines sentence of 12 months in prison unreasonable.
He had received six-month sentences on each of his previous revocations. The
district court also noted that Ivers had been shown leniency in his original sentence
for threatening to murder a federal judge and that Ivers was not showing signs of
rehabilitation. Because the court fully considered all mitigating and aggravating
factors, I would affirm.
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