Elliott Finch, Jr. v. Dexter Payne, Director, Arkansas Department of Correction

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 19-2369
___________________________
Elliott Finch, Jr.
Plaintiff - Appellee
v.
Dexter Payne, Director, Arkansas Department of Correction
Defendant - Appellant
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: September 22, 2020
Filed: December 18, 2020
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Before LOKEN, SHEPHERD, and ERICKSON, Circuit Judges.
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SHEPHERD, Circuit Judge.
A Pulaski County, Arkansas, jury convicted Elliot Harold Finch, Jr. of
aggravated residential burglary, aggravated assault on a family or household
member, and first-degree terroristic threatening. Finch was subject to a firearm
enhancement and sentenced as a habitual offender, resulting in a sentence of life
imprisonment plus 15 years in the Arkansas Department of Corrections and a
$10,000 fine. Finch appealed his conviction to the Arkansas Supreme Court,
alleging that he was denied his Sixth Amendment right to self-representation and

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that he was prejudiced by juror misconduct. The Arkansas Supreme Court affirmed
the conviction. Finch challenged his conviction under 28 U.S.C. § 2254 in the
United States District Court for the Eastern District of Arkansas, raising the same
arguments as in state court. The district court1 granted Finch’s petition based on his
Sixth Amendment claim. The State of Arkansas (the State) now appeals, arguing
that the district court failed to give proper deference to the Arkansas Supreme
Court’s factual determinations. Having jurisdiction under 28 U.S.C. § 1291, we
affirm.
I.
On August 22, 2013, Finch entered his ex-girlfriend’s house by breaking
through a window. His ex-girlfriend was home with her two children and was taking
a shower. Finch met her at gunpoint as she exited the shower and threatened to kill
her, her children, and himself. The ex-girlfriend attempted to calm Finch down,
eventually resorting to sexual intercourse with him to alleviate the immediate threat
of violence. Finch did not leave the home after having sex with the ex-girlfriend.
He stayed the night, sleeping in the ex-girlfriend’s bed with her, but positioning
himself between her and the door so she could not leave without his knowledge. The
next morning, Finch allowed the ex-girlfriend to leave for work. She took her nine-
year-old daughter with her but was unable to wake up her teenage son, who was on
medication. After leaving, the ex-girlfriend called the police, and Finch was
subsequently arrested. Finch was charged with kidnapping, aggravated residential
burglary, possession of firearms by certain persons, aggravated assault on a family
or household member, and first-degree terroristic threatening.
Finch received court appointed counsel, and the matter proceeded to trial. At
some point during the pretrial proceedings, Finch became frustrated with his court-
appointed counsel. At a September 22, 2015 omnibus hearing, Finch requested to
1 The Honorable Billy Roy Wilson, United States Judge for the Eastern District
of Arkansas, adopting the report and recommendation of the Honorable Patricia S.
Harris, United States Magistrate Judge for the Eastern District of Arkansas.

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speak and informed the court that he wanted new counsel. R. Doc. 7-2, at 328. The
trial judge denied the request. R. Doc. 7-2, at 328. At an October 19, 2015 hearing,
Finch stated: “I want to represent myself then”; “I want to represent myself.”; “I
want to represent myself, Your Honor. And that’s all I’m telling you”; and “I don’t
want no attorney.” R. Doc. 7-3, at 10-12. The trial judge again dismissed the request
on the basis that Finch had not properly cooperated with his Act 3 mental
evaluation.2 R. Doc. 7-3, at 15.
Thereafter, Finch filed a handwritten motion to waive counsel and proceed
pro se, citing Faretta v. California, 422 U.S. 806 (1975). R. Doc. 7-2, at 136. On
March 10, 2016, the court conducted a hearing to discuss Finch’s second Act 3
evaluation report, where Finch’s counsel brought the pending motion to the court’s
attention. R. Doc. 7-3, at 40. The court and the prosecution acknowledged Finch’s
request, and the court engaged Finch in a colloquy regarding his knowledge of the
judicial system. See R. Doc. 7-3, at 40-51. While Finch wished to proceed pro se,
he inquired about the availability of “standby counsel.” R. Doc. 7-3, at 50.
Ultimately, the trial judge denied the motion “based on the seriousness of the
offenses and the likelihood of [Finch] getting some serious time.” R. Doc. 7-3, at
51. The case proceeded to trial with Finch’s court-appointed attorney. The jury
convicted Finch of aggravated residential robbery, aggravated assault on a family or
household member, and first-degree terroristic threatening and was unable to reach
2 An Act 3 mental evaluation may be ordered by the court or requested by the
defendant whenever the defendant “intends to rely upon the defense of mental
disease or defect” or “[t]here is reason to doubt the defendant’s fitness to proceed.”
Ark. Code Ann. § 5-2-305 (repealed 2017). Finch underwent two Act 3 evaluations.
In each evaluation, the forensic pathologist determined that Finch possessed the
mental fitness required to participate in the proceedings. However, Finch refused to
participate in the part of the evaluation focused on his mental state at the time of the
offense because he did not intend to rely upon a defense of not guilty by reason of
mental disease or defect.

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a verdict on kidnapping, resulting in a mistrial on that charge.3 Finch received an
aggregate sentence of life imprisonment plus 15 years and a $10,000 fine.
Finch appealed his conviction to the Arkansas Supreme Court, arguing that he
had been denied his Sixth Amendment right to self-representation and that he had
been prejudiced by juror misconduct. The Arkansas Supreme Court found that the
trial court’s inquiry “included irrelevant concerns, such as [Finch]’s level of
education and technical legal knowledge, and the court’s stated basis for denying the
request . . . was invalid.” Finch v. State, 542 S.W.3d 143, 145 (Ark. 2018). The
Arkansas Supreme Court nonetheless held, under its independent review, that
Finch’s request was not unequivocal and that “the trial court could have concluded
that [Finch] had ‘engaged in conduct that would prevent the fair and orderly
exposition of the issues.’” Id. Based on these holdings, the Arkansas Supreme Court
determined that Finch had not invoked his right to defend himself pro se. The court
additionally found that Finch “could not show a reasonable possibility of prejudice”
to succeed on his juror misconduct claim and affirmed his conviction. Id. at 149.
Finch then sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in
federal court. Finch raised the same two issues as in state court: (1) that he was
denied his Sixth Amendment right to self-representation; and (2) that he was
prejudiced by juror misconduct. In considering Finch’s Sixth Amendment claim,
the magistrate judge thoroughly reviewed and documented the state court
proceedings. The magistrate judge determined that the Arkansas Supreme Court’s
legal framework under Faretta was reasonable in deciding whether Finch had
invoked his right to waive counsel, pursuant to 28 U.S.C. § 2254(d)(1). The
magistrate judge went on to discuss the Arkansas Supreme Court’s factual
determinations, or lack thereof, under subsection (d)(2) in great detail. The
magistrate judge determined that the Arkansas Supreme Court made three specific
factual findings: (1) the trial court’s questions to Finch were irrelevant; (2) Finch’s
3 The charge for possession of firearms by certain persons was severed before
trial.

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requests to represent himself were equivocal; and (3) Finch was disruptive,
preventing a fair and orderly exposition of the issues. The magistrate judge then
considered whether Finch overcame the state court’s presumption of correctness
under 28 U.S.C. § 2254(e)(1) by clear and convincing evidence. The magistrate
judge agreed with the determination that the trial court’s questions of Finch were
irrelevant, but she found that Finch had overcome the presumption of correctness of
the latter two findings and that the Arkansas Supreme Court’s determinations were
unreasonable. The magistrate judge determined that Finch had unequivocally
invoked his right to self-representation on multiple occasions, including in a written
motion. The magistrate judge further found that the record does not reflect that
Finch’s behavior prevented “a fair and orderly exposition of the issues,” especially
in light of the more extreme misbehavior documented in the case law. Finally, the
magistrate judge summarily found Finch’s second claim to be without merit because
the state court determined that Finch was not prejudiced by the juror misconduct and
such determination was entitled to deference under 28 U.S.C. § 2254.
The district court approved and adopted the magistrate judge’s report and
recommendation and granted Finch’s habeas petition, directing the State to either
release Finch or provide him with a new trial within 120 days of the order. The State
appealed the district court’s findings. Only Finch’s Sixth Amendment claim is
before this Court on appeal.
II.
“On appeal from a district court’s grant of a habeas petition, we review the
district court’s findings of fact for clear error, and its conclusions of law de novo.”
Franklin v. Hawley, 879 F.3d 307, 311 (8th Cir. 2018) (quoting Escobedo v. Lund,
760 F.3d 863, 868 (8th Cir. 2014)). However, because Finch’s petition is based on
a state court adjudication, we are further restricted by the limitations set forth in 28
U.S.C. § 2254. Gray v. Norman, 739 F.3d 1113, 1116 (8th Cir. 2014). Section 2254
states, in part:

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(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; 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.
(e)(1) In a proceeding instituted by an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court,
a determination of a factual issue made by a State court shall be
presumed to be correct. The applicant shall have the burden of
rebutting the presumption of correctness by clear and convincing
evidence.
28 U.S.C. § 2254(d)-(e)(1).
Section 2254(d)(1) clearly refers to situations where a “state court applies a
rule that contradicts the governing law set forth in [the Supreme Court’s] cases” or
where it “confronts a set of facts that are materially indistinguishable from a decision
of [the Supreme] Court and nevertheless arrives at a result different from [Supreme
Court] precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000). This category
of cases can be described as those presenting “questions of law,” or purely legal
issues. The magistrate judge employed this aspect of § 2254(d)(1) when she
determined that the Arkansas Supreme Court’s articulation of Faretta was not
contrary to the Supreme Court’s jurisprudence.4
4 The Arkansas Supreme Court articulated Faretta in the following manner:
A defendant may waive the right to counsel and invoke his right to
defend himself pro se provided that (1) the request to waive the right to
counsel is unequivocal and timely asserted, (2) there has been a

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However, § 2254(d)(1) also includes those instances where a “state court
identifies the correct governing legal principle . . . but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. at 413; see also Bell v. Cone, 535
U.S. 685, 694 (2002) (“The court may grant relief under the ‘unreasonable
application’ clause if the state court correctly identifies the governing legal principle
from our decisions but unreasonably applies it to the facts of the particular case.”).
The Supreme Court has “sometimes referred to such a question, which has both
factual and legal elements, as a ‘mixed question of law and fact.’” Guerrero-
Lasprilla v. Barr, 140 S. Ct. 1062, 1069 (2020).5
“In the § 2254(d) context, as elsewhere, the appropriate methodology for
distinguishing questions of fact from questions of law has been, to say the least,
elusive[,]” but we find no difficulty categorizing the present determinations. Miller
v. Fenton, 474 U.S. 104, 113 (1985). This case requires this Court to determine
whether the record supports a finding that Finch invoked his right to self-
representation under Faretta. These “application-of-legal-standard-to-fact sort of
question[s]” are mixed questions of law and fact. See United States v. Gaudin, 515
U.S. 506, 512 (1995). Such questions, as we have indicated above, are reviewed
knowing and intelligent waiver of the right to counsel, and (3) the
defendant has not engaged in conduct that would prevent the fair and
orderly exposition of the issues.
Finch, 542 S.W.3d at 145-46. The magistrate found that this articulation was not
contrary to, or an unreasonable application of, Faretta.
5 On the other hand, § 2254(d)(2) governs determinations that are purely
factual in nature. Of course, even further discussion is necessary to determine the
interplay between §§ 2254(d)(2) and (e)(1) as they employ two separate standards
of review for factual determinations: unreasonableness and incorrect by clear and
convincing evidence, respectively. See Wood v. Allen, 558 U.S. 290, 300 (2010)
(“Although we granted certiorari to resolve the question of how §§ 2254(d)(2) and
(e)(1) fit together, we find once more that we need not reach this question . . . .”).
However, we do not find such discussion necessary to dispose of the present case.

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under § 2254(d)(1)’s “unreasonable application” clause. See Williams, 529 U.S. at
413.
This distinction is critical because the Arkansas Supreme Court’s
determinations, as facts applied to law, are not afforded the “presumption of
correctness” of § 2254(e)(1). Section 2254(e)(1) only applies to factual issues.
Issues of fact are:
basic, primary, or historical facts: facts “in the sense of a recital of
external events and the credibility of their narrators . . . .” So-called
mixed questions of fact and law, which require the application of a legal
standard to the historical-fact determinations, are not facts in this sense.
Townsend v. Sain, 372 U.S. 293, 309 n.6 (1963) (alteration in original) (citation
omitted). In this case, the relevant historical facts of Finch’s case are immortalized
in the respective court transcripts and filings and are undisputed by the parties. We
are tasked only with considering whether “the[se] historical facts . . . satisfy the legal
test chosen.” Guerrero-Lasprilla, 140 S. Ct. at 1069 (citation omitted). Therefore,
our review is limited to determining only whether the Arkansas Supreme Court’s
disposition of Finch’s case “involved an unreasonable application of[] clearly
established Federal law.” 28 U.S.C. § 2254(d)(1).
Under § 2254(d)(1) we must determine “whether the state court’s application
of clearly established federal law was objectively unreasonable.” Williams, 529
U.S. at 409. “An ‘unreasonable application’ is different from an incorrect or
erroneous application; a prisoner must establish that a state court’s adjudication was
not only wrong, but also objectively unreasonable, such that ‘fairminded jurists’
could not disagree about the proper resolution.” Smith v. Titus, 958 F.3d 687, 691
(8th Cir. 2020), appeal docketed, No. 20-633 (U.S. Nov. 10, 2020) (citation omitted);
see also Strong v. Roper, 737 F.3d 506, 510 (8th Cir. 2013) (“[I]t is not enough for
us to conclude that, in our independent judgment, we would have applied federal law
differently from the state court; the state court’s application must have been

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objectively unreasonable.” (quoting Rousan v. Roper, 436 F.3d 951, 956 (8th Cir.
2006))).
A.
The State first contends that the Arkansas Supreme Court reasonably
determined that Finch’s invocation of self-representation was equivocal. “The Sixth
Amendment . . . implies a right of self-representation.” Faretta, 422 U.S. at 821.
“‘If [a defendant’s] request’ to ‘assert his right to self-representation’ ‘is clear and
unequivocal, a Faretta hearing must follow.’” United States v. Kelley, 787 F.3d 915,
918 (8th Cir. 2015) (alteration in original) (quoting Bilauski v. Steele, 754 F.3d 519,
522 (8th Cir. 2014)). “Equivocation, which sometimes refers only to speech, is
broader in the context of the Sixth Amendment, and takes into account conduct as
well as other expressions of intent.” Bilauski, 754 F.3d at 523 (citation omitted).
[W]hen a defendant in a criminal case has moved to represent himself
and the court has not entered a ‘clear’ and ‘conclusive[]’ denial, it is
incumbent on the defendant to ‘reassert his desire to proceed pro se’;
his failure to do so . . . ‘constitute[s] a waiver of his previously asserted
Sixth Amendment’ right to proceed pro se.
Id. at 522 (quoting United States v. Barnes, 693 F.3d 261, 272 (2d Cir. 2012)).
“However, to avoid waiver of a previously invoked right to self-representation, a
defendant need not ‘continually renew his request to represent himself even after it
is conclusively denied by the trial court.’” Wilson v. Walker, 204 F.3d 33, 37 (2d
Cir. 2000) (citation omitted).
At the trial court level, Finch made no less than two requests to proceed pro
se: October 19, 2015, and February 25, 2016. At the October 19, 2015 omnibus
hearing, Finch stated: “I want to represent myself then.”; “I want to represent
myself.”; “I want to represent myself, your Honor. And that’s all I’m telling you.”;
and “I don’t want no attorney.” R. Doc. 7-3, at 10-12. In the Arkansas Supreme
Court’s view, these comments are “interspersed [with] his complaints about his

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attorney” and interruptions. Finch, 542 S.W.3d at 146. However, Finch’s request
to proceed pro se was well understood by the trial court, as the trial court proceeded
to question Finch concerning his technical legal knowledge and denied his motion
based on “the history that [the trial court] had with [the] report from Act 3 and all
that.” R. Doc. 7-3, at 15.
After this “clear” and “conclusive” denial, Finch was under no further
obligation to reassert his Sixth Amendment right to self-representation. Bilauski,
754 F.3d at 522; Wilson, 204 F.3d at 37. Nevertheless, Finch continued to
passionately pursue his constitutional right. On February 25, 2016, Finch filed a pro
se motion to waive counsel, citing Faretta and requesting a hearing. The motion
was addressed at the March 10, 2016 hearing, but only after Finch’s court-appointed
counsel brought it to the attention of the trial court. The State is quick to point out
Finch’s requests for “new counsel” and “standby counsel” during this colloquy, but
in doing so, it ignores its own request to view Finch’s invocations in a contextual
setting.6 Every party to the hearing—the trial court, the prosecutor, the court-
appointed defense counsel, and Finch—understood Finch’s request to be an
invocation of his right to proceed pro se. The trial court again questioned Finch
regarding matters irrelevant to a Faretta analysis, such as Finch’s technical legal
knowledge. The trial court denied Finch’s motion “based on the seriousness of the
offenses and the likelihood of [Finch] getting some serious time,” which, as the
Arkansas Supreme Court identified, are “invalid” bases for denying Finch’s Sixth
Amendment right to self-representation. See Finch, 542 S.W.3d at 146; see also
Faretta, 422 U.S. at 834 (“[A]lthough he may conduct his own defense ultimately to
his own detriment, his choice must be honored out of ‘that respect for the individual
which is the lifeblood of the law.’” (citation omitted)).
6 We note that Finch’s comments regarding “standby counsel” do not
equivocate his invocation to proceed pro se. The Supreme Court has stated that the
appointment of standby counsel is in fact an appropriate mechanism to balance the
needs of the judicial process and the defendant’s rights. See Faretta, 422 U.S. at 834
n.46; see also McKaskle v. Wiggins, 465 U.S. 168, 174 (1984).

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The Arkansas Supreme Court failed to identify any other basis for finding that
Finch’s requests were equivocal. Applying the historical facts of the record to
Faretta, we conclude that Finch clearly and unequivocally invoked his right to self-
representation. As soon as Finch manifested this clear and unequivocal invocation,
the proceedings should have paused, and the trial court should have conducted a
proper Faretta hearing. The Arkansas Supreme Court’s finding to the contrary is
objectively unreasonable.
B.
The State next contends that the Arkansas Supreme Court’s determination that
“the trial court could have concluded that [Finch] had ‘engaged in conduct that
would prevent the fair and orderly exposition of the issues” was a reasonable
determination under § 2254, precluding the district court’s grant of Finch’s habeas
petition. “‘The right to self-representation . . . is not absolute. Once the defendant
makes a clear and unequivocal request to represent himself, a court may nonetheless
deny the request in certain circumstances,’ such as when . . . the defendant ‘engages
in serious and obstructionist misconduct . . . .” Kelley, 787 F.3d at 917-18 (first
alteration in original) (emphasis added) (quoting United States v. Edelmann, 458
F.3d 791, 808 (8th Cir. 2006)). The type of conduct required for a court to deny a
defendant’s request to proceed pro se generally requires extreme disruption of the
judicial process. See, e.g., United States v. Luscombe, 950 F.3d 1021 (8th Cir. 2020)
(affirming the revocation of the defendant’s right to self-representation when the
defendant defied court orders, argued and interrupted witnesses repeatedly, and
attempted to serve numerous harassing subpoenas on victims). Unless other
aggravating factors are present, courts typically do not deny a defendant’s initial
motion to proceed pro se, but instead revoke the previously granted self-
representation if the defendant subsequently engages in obstructionist behavior. See,
e.g., id.; Edelmann, 458 F.3d 791 (affirming the initial denial of the defendant’s right
to self-representation when the defendant waited until five days before trial,
requested and received several continuances, and coupled her request with several
other motions).

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Finch’s behavior is starkly mild compared to the level of obstructionist
conduct outlined above. At worst, Finch spoke out of turn during two hearings and
refused to comply with a portion of a mental evaluation he did not wish to use in his
defense. While Finch’s behavior is not that of the model defendant, we can
understand the frustration of an individual who is attempting to assert his Sixth
Amendment right, only to be ignored and forced to participate in a defense that is
not his. See Faretta, 422 U.S. at 834 (“To force a lawyer on a defendant can only
lead him to believe that the law contrives against him. Moreover, it is not
inconceivable that in some rare instances, the defendant might in fact present his
case more effectively by conducting his own defense.”).
There is no evidence in the record that Finch was attempting to manipulate,
subvert, or delay the trial process. In contrast, Finch regularly upheld decorum by
referring to the trial court judge as “sir” and “Your Honor,” and was responsive to
the court’s questioning. See Finch, 543 S.W.3d at 154 (Hart, J., dissenting). The
record does not support a finding that Finch engaged in serious and obstructionist
misconduct, and the Arkansas Supreme Court’s finding to the contrary is objectively
unreasonable.
C.
Finally, the State contends that the district court erred by treating as dicta the
Arkansas Supreme Court’s determination that Finch was not capable of “knowingly
and intelligently” waiving his right to counsel. “When an accused manages his own
defense, he relinquishes, as a purely factual matter, many of the traditional benefits
associated with the right to counsel. For this reason, in order to represent himself,
the accused must ‘knowingly and intelligently’ forgo those relinquished benefits.”
Faretta, 422 U.S. at 835 (citation omitted). The Arkansas Supreme Court mentioned
this “knowingly and intelligently” requirement,7 but the magistrate judge determined
7 The Arkansas Supreme Court stated: “[T]he [trial] court ordered a mental
evaluation at the state hospital at this hearing to determine [Finch]’s fitness to
proceed. This court has held that a trial court cannot determine whether a waiver of

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that such reference was dicta and not a basis of the court’s decision. On appeal, the
State argues that this was a determination by the Arkansas Supreme Court that Finch
was incapable, under Faretta, to waive his right to counsel and proceed pro se.
However, in its objection to the magistrate judge’s findings and
recommendation, the State objected to the characterization of the Arkansas Supreme
Court’s determination as dicta on a completely separate basis, arguing that it was a
factual determination relating to Finch’s alleged obstructionist conduct with no
reference to the requirement of a “knowing and intelligent” waiver under Faretta.
The argument of whether Finch knowingly and intelligently waived his right to
counsel was not presented to the district court, and “this court will not [ordinarily]
consider arguments raised for the first time on appeal.” Wiser v. Wayne Farms, 411
F.3d 923, 926 (8th Cir. 2005); see also Barnett v. Roper, 541 F.3d 804, 807-08 (8th
Cir. 2008). Therefore, because the State failed to present this argument to the district
court, it has been waived on appeal.
III.
As the Supreme Court stated in Faretta:
The right to defend is personal. The defendant, and not his lawyer or
the [State], will bear the personal consequences of a conviction. It is
the defendant, therefore, who must be free personally to decide whether
in his particular case counsel is to his advantage. And although he may
conduct his own defense ultimately to his own detriment, his choice
must be honored out of “that respect for the individual which is the
lifeblood of the law.”
counsel is knowingly and intelligently made when an examination of a defendant’s
competency to stand trial had not yet been made.” Finch, 543 S.W.3d at 146. The
magistrate judge viewed this statement as dicta because, as the record supports,
Finch had already been determined competent to stand trial.

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422 U.S. at 834 (quoting Illinois v. Allen, 397 U.S. 337, 350-51 (1970) (Brennan,
J., concurring)).
The judgment of the district court is affirmed.
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