Full opinion text
ORDER ON PETITION FOR WRIT OF HABEAS CORPUS PATRICIA A. SEITZ, District Judge. THIS CAUSE came before the Court on Petitioner, Albert Holland’s (“Mr. Holland”) Amended Petition for Writ of Habeas Corpus by a Person in State Custody, filed on April 4, 2011. [D.E. 117]. Mr. Holland is currently on death row at the Union Correctional Institution in Raiford, Florida following a conviction in 1996 for first degree murder. The State and Mr. Holland have filed a response, and reply, respectively. In total, Mr. Holland asserts eight claims with multiple subclaims. In this habeas corpus proceeding, brought pursuant to 28 U.S.C. § 2254, Mr. Holland seeks to overturn the death sentence imposed on him for his role in the first degree murder of Pompano Beach police officer Scott Winters. Mr. Holland asserts eight separate and distinct constitutional violations: (1) his right to self-representation was violated; (2) the trial court committed error by admitting testimony from expert witnesses who relied on a report which had been ruled inadmissible by the Florida Supreme Court on direct appeal from Mr. Holland’s first trial; (3) the Florida Supreme Court erroneously concluded that the admission of an inaudible videotape and improper opinion testimony was harmless error; (4) the trial court erred by denying Mr. Holland’s motion to suppress; (5) the trial court erred in denying the motion for judgment of acquittal based on a lack of evidence of premeditation; (6) he was denied effective assistance of appellate counsel when counsel failed to challenge the trial court’s exclusion of reference to internal affairs records and failed to raise denial of additional peremptory challenges; (7) he was denied effective assistance of trial counsel when counsel made an unreasonable concession of guilt during closing argument and failed to object to certain testimony and statements made by the prosecutor during closing argument; and (8) the trial court failed to consider non-statutory mitigation. The Court has considered the written submissions, the entire record of Mr. Holland’s state court proceedings, and applicable law. For the reasons that follow, the Petition for Writ of Habeas Corpus is GRANTED, in part, and DENIED, in part. The Court grants Mr. Holland habeas relief as to Claim One because the Florida Supreme Court made legal and factual determinations which involved an unreasonable application of clearly established federal law when it concluded that Mr. Holland’s Sixth Amendment right to self-representation was not violated. However, Mr. Holland’s remaining claims for habeas relief are denied because the Florida Supreme Court made legal and factual determinations which involved a reasonable application of clearly established federal law or a reasonable determination of the facts in light of the evidence presented. I. FACTUAL AND PROCEDURAL BACKGROUND The factual and procedural background in this section is quoted from the opinion of the Florida Supreme Court: Holland was convicted and sentenced to death for the 1990 murder of Pompano Beach police officer Scott Winters. On appeal, this Court reversed Holland’s conviction due to the erroneous admission of expert medical testimony concerning an examination of Holland by a State psychiatrist. See Holland v. State, 636 So.2d 1289 (Fla.1994). The examination took place in violation of Holland’s right to counsel and right to remain silent. See id. at 1292-93. The record from the retrial establishes the following facts. Holland attacked a woman he met on July 29, 1990. Holland ran off after a witness interrupted the attack. Police officers responding to a call about the attack found the woman semi-conscious with severe head wounds. Officer Winters and other officers began searching for the man believed to have been involved in the attack. A short time later, witnesses saw Officer Winters struggling with Holland. During the struggle, Holland grabbed Officer Winters’ gun and shot him. Officer Winters died of gunshot wounds to the groin and lower stomach area. Holland v. State, 773 So.2d 1065, 1068 (Fla.2000). At the re-trial, Mr. Holland was again convicted of first-degree murder. The jury recommended by an eight-to-four vote that Mr. Holland be sentenced to death. The trial court found the following aggravating circumstances: (1) the defendant was previously convicted of a felony involving the use or threat of violence to a person; (2) the capital felony was committed while the defendant was engaged in the commission of, or in an attempt to commit, or flight after committing or attempting to commit the crime of robbery or an attempt to commit the crime of sexual battery or both; and (3)(a) the crime was committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody, merged with (3)(b) the victim of the capital felony was a law enforcement officer engaged in the performance of his legal duties. The court did not find that any statutory mitigating circumstances were established, but did find the existence of two nonstatutory mitigating circumstances: (1) history of drug and alcohol abuse (little weight) and (2) history of mental illness (little weight). The trial court concluded that the aggravators outweighed the mitigators and sentenced Mr. Holland to death. Id. at 1068. On direct appeal, Mr. Holland raised twenty-two claims. The Florida Supreme Court found Mr. Holland’s claims without merit and affirmed his conviction and sentence of death. Id. Subsequently, Mr. Holland filed a Rule 3.851 motion for post-conviction relief. The trial court conducted a limited evidentiary hearing on two claims pursuant to Huff v. State and then issued an order denying Mr. Holland relief on all claims. Mr. Holland appealed to the Florida Supreme Court. Holland v. State, 916 So.2d 750 (Fla.2005). Mr. Holland also petitioned for state habeas relief. Id. Mr. Holland raised four claims of ineffective assistance of appellate counsel. The Florida Supreme Court affirmed the trial court’s order denying Mr. Holland’s motion for postconviction relief and denied his petition for writ of habeas corpus. Id. at 762. On January 19, 2006, Mr. Holland, acting pro se filed a petition pursuant to 28 U.S.C. § 2254 for writ of habeas corpus by a person in state custody with the Court. (See [D.E. 1]). This Court dismissed the petition as barred by the statute of limitations. ([D.E. 46]). The Eleventh Circuit Court of Appeals affirmed. Holland v. Florida, 539 F.3d 1334 (11th Cir.2008). Mr. Holland petitioned for a writ of certiorari to the United States Supreme Court which was granted and, after oral argument, reversed the Eleventh Circuit. Holland v. Florida, — U.S. -, 130 S.Ct. 2549, 177 L.Ed.2d 130 (2010). On remand, the Court permitted Mr. Holland to amend his petition. ([D.E. 112]). On April 4, 2011, the instant petition was filed. ([D.E. 117]). On July 13, 2011, the State filed its response. (See [D.E. 120]). On October 3, 2011, Mr. Holland filed his reply. (See [D.E. 120]). This matter is now ripe. II. STANDARD OF REVIEW Mr. Holland’s habeas corpus petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. 104-132, 110 Stat. 1214 (1996) (codified at various provisions in Title 28 of the U.S.Code), which significantly changed the standards of review that federal courts apply in habeas corpus proceedings. Under the AEDPA, if a claim was adjudicated on the merits in state court, habeas corpus relief can only be granted if the state court’s adjudication results in one of two outcomes. It must have either “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 “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)(1) and (2). Mr. Holland’s habeas petition is granted pursuant to § 2254(d)(1). Pursuant to § 2254(d)(1), a state court decision is “contrary to” Supreme Court precedent if it “arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law” or “confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at [an] [opposite] result.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). With respect to the “unreasonable application” prong of § 2254(d)(1), which applies when a state court identifies the correct legal principle but purportedly applies it incorrectly to the facts before it, a federal habeas court “should ask whether the state court’s application of clearly established federal law was objectively unreasonable.” Id. at 409, 120 S.Ct. 1495. See also Wiggins v. Smith, 539 U.S. 510, 520-21, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). Significantly, an “objectively unreasonable application of federal law is different from an incorrect application of federal law.” Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002). In order to make this determination under § 2254(d)(1), “a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court’s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the United State Supreme] Court.” Harrington v. Richter, — U.S.-, 131 S.Ct. 770, 786, 178 L.Ed.2d 624 (2011). III. CLAIMS ANALYSIS In the instant petition, Mr. Holland asserts eight claims for federal habeas relief. Mr. Holland argues that his rights to self-representation and to remain silent were both violated. He contends that the Florida Supreme Court conducted a flawed harmless error analysis on direct appeal. Mr. Holland also asserts that there was insufficient evidence to support a finding of premeditation. He maintains that he received ineffective assistance of counsel at both trial and on direct appeal. Finally, Mr. Holland asserts that the trial court failed to consider non-statutory mitigation. Because Mr. Holland’s first claim is the sole claim warranting habeas relief, it is the principle focus of this opinion. Mr. Holland has not met the deferential standard required for habeas relief on his remaining claims. I. SELF-REPRESENTATION To begin, Mr. Holland’s first claim for habeas relief is that the “trial court erred in denying the Petitioner his constitutional right to self-representation after he unequivocally requested to represent himself on several occasions.” ([D.E. 117] at 8). On at least ten separate occasions before trial, during trial, and in advance of the penalty phase, Mr. Holland requested to represent himself. The trial judge determined that Mr. Holland could not represent himself because he did “not have any specific legal training” and was not “familiar with the rules of evidence, nor trial procedures, [and] is not familiar with how trial is conducted.” ([D.E. 125-14] at 58). This erroneous application of law resulted in Mr. Holland putting forth a defense of insanity which is not the defense that Mr. Holland wanted. In his first trial, the defense was insanity. Evidently, this defense was unsuccessful as it resulted in a guilty verdict. At his re-trial, Mr. Holland made clear that if he were to represent himself, his intention would be to challenge the State’s evidence or lack thereof When he was denied the right to represent himself, defense counsel proceeded again with an insanity defense. This result violated the fundamental rights guaranteed to Mr. Holland by the Sixth Amendment to the United States Constitution. See Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense.”). This right was well understood and clearly established law at the time of Mr. Holland’s direct appeal to the Florida Supreme Court. The United States Supreme Court expressly recognized the right to self representation in 1975. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Supreme Court held that the Sixth and Fourteenth Amendments include a “constitutional right to proceed without counsel when” a criminal defendant “voluntarily and intelligently elects to do so.” 422 U.S. at 807, 95 S.Ct. 2525. The Faretta Court found that right existed based on: (1) a “nearly universal conviction,” made manifest in state law, that “forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so,” id., at 817-818, 95 S.Ct. 2525; (2) Sixth Amendment language granting rights to the “accused”; (3) Sixth Amendment structure indicating that the rights it sets forth, related to the “fair administration of American justice,” are “persona[l]” to the accused, id., at 818-821, 95 S.Ct. 2525; (4) the absence of historical examples of forced representation, id., at 821-832, 95 S.Ct. 2525; and (5) “respect for the individual,” id., at 834, 95 S.Ct. 2525 (quoting Illinois v. Allen, 397 U.S. 337, 350-351, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring) (a knowing and intelligent waiver of counsel “must be honored out of ‘that respect for the individual which is the lifeblood of the law1 ”)). Indiana v. Edwards, 554 U.S. 164, 170, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Given this backdrop, the Court finds that the Florida Supreme Court made an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States when it determined that Mr. Holland’s claim of error had no merit. § 2254(d)(1). A. Facts and Procedural History The factual underpinning’s of this claim are unusual and highly unlikely to be repeated in the future. The facts reflect a series of events which occurred as the result of not any one singular error or misunderstanding and which resulted in a confluence of events that ultimately caused the confusion between technical legal competence to represent oneself and the competence required to make a knowing and voluntary waiver of that right. These facts are essential to Mr. Holland’s claim. As such, they bear repeating. Appointment of Counsel On August 12, 1991, Mr. Holland was convicted and sentenced to death. The trial judge was the Honorable M. Daniel Futch. At trial, Mr. Holland was represented by court appointed counsel, Peter Giacoma, Esq. and Young Tindall, Esq. On direct appeal, the Florida Supreme Court reversed Mr. Holland’s conviction and sentence and remanded the case for a new trial. Holland v. State, 636 So.2d 1289 (Fla.1994). On remand, Mr. Holland’s case was assigned to a different judge, the Honorable Charles M. Greene. The trial court held a hearing to appoint counsel. Judge Greene knew of the partnership between Mr. Giacoma and Judge Futch and found that in order to avoid “any appearance of impropriety or any interest, whatsoever” the trial court would appoint new counsel. ( [D.E. 125-3] at 61). i. Kenneth Delegal, Esq. On August 24, 1994, the trial court held another hearing wherein Judge Greene appointed Kenneth Delegal, Esq. ([D.E. 125-3] at 76). After the court announced the appointment of Mr. Delegal, the State announced that Mr. Holland should be informed that Mr. Delegal’s brother had been an assistant state attorney for many years before going into private practice as a criminal defense attorney. (Id. at 78). Mr. Delegal stated for the record that he was not associated with his brother but his brother did rent office space from him at one time. Mr. Holland voiced some concerns about Mr. Delegal’s representation of him and asked the court for some time to think about it. Mr. Holland asked the court “if I say it makes me uncomfortable, you know, then what other choices do I have?” (Id. at 83). The court did not respond to Mr. Holland’s question and announced that Mr. Delegal was appointed. (Id. at 84). After the appointment of Mr. Delegal, Mr. Holland’s case largely proceeded without issue for almost a year. From time to time, Mr. Holland voiced concerns about not wanting to waive his speedy trial right but he felt he “did not have a choice” because he had been appointed counsel over his objection. Mr. Holland also requested copies of the trial transcripts, depositions taken in the case, and police reports to be accessed at the Bro-ward County Jail during the preparation of his trial. Mr. Holland wanted to assist in his own defense. Judge Greene agreed and entered an order requiring the Bro-ward County Jail to “allow the defendant to review transcripts of his first trial and to store these transcripts in the jail as BSO deems appropriate.” ([D.E. 125-78]). Mr. Delegal was to have these documents copied and delivered to Mr. Holland. For reasons explained below, these documents were never produced to Mr. Holland by Mr. Delegal. In general, Mr. Holland remained cooperative and was not overtly disruptive in court. On July 26, 1995, the court held a status conference where it was announced that Mr. Delegal will no longer be able to represent Mr. Holland due to Mr. Delegal’s being confined to a mental health facility pursuant to the Baker Act. As of that date, Mr. Delegal had requested to be placed on inactive status with the Florida Supreme Court and The Florida Bar. Appearing before the court was James Lewis, Esq. who shared office space with Mr. Delegal and was aware of the situation regarding Mr. Delegal’s incapacity. Mr. Lewis offered to appear as counsel for Mr. Holland during the re-trial. Mr. Holland said he would like to think about it because he may want someone else appointed. ( [D.E. 125-9] at 20). Nonetheless, the trial court appointed Mr. Lewis. Mr. Holland also voiced concerns about his current access to the jail law library (or lack thereof) and the fact that Mr. Delegal allowed an expert witness to interview him without videotaping the session. (Id. at 24). Mr. Holland suggested that perhaps the failure to videotape the session was due to Mr. Delegal being under the influence, ii. James Lewis, Esq. and Evan Baron, Esq. On September 25, 1995, Mr. Holland addressed the court after he had refused to meet with counsel at the jail. Mr. Holland had written the trial court several letters requesting five things. First, he wanted the judge to recuse himself. Mr. Holland argued that he only consented to Judge Greene retaining jurisdiction over the case when the judge left the criminal division to preside in family court because Mr. Delegal advised this was best. However, now that Mr. Delegal was no longer on the case and his judgment was in serious doubt, Mr. Holland wanted to change positions. ([D.E. 125-9] at 85). Second, Mr. Holland also advised the court that he had not received copies of depositions as previously ordered by the trial court and was concerned that he would not get a fair trial based on Mr. Delegal’s actions or lack thereof. Third, Mr. Holland asked for Mr. Lewis to be replaced. ([D.E. 125-10] at 25). Fourth, Mr. Holland also asked for Mr. Baron (penalty phase counsel) to be replaced since he was appointed along with Mr. Delegal. The trial court denied these requests but did require Mr. Lewis to provide Mr. Holland with the documents, trial transcripts and deposition transcripts that Mr. Delegal had been ordered to provide. In addition, Mr. Holland also argued to the trial court that an error may have been made in the indictment because according to his legal research attempted felony murder is not a crime in Florida. (Id.). Competency On October 9, 1995, after Mr. Lewis reported some competency concerns about Mr. Holland, the trial court appointed three independent mental health professionals to examine Mr. Holland to make a determination if he was competent to stand trial. Drs. Lee Bukstel, Trudy Block-Garfield and Patsy Ceros-Livingston each evaluated Mr. Holland. On December 14, 1995, a competency hearing was held. Each witness submitted an expert report on their findings and those reports were admitted into evidence at the competency hearing. The record is unclear as to when but Mr. Holland had been prescribed Haldol at the time of the interviews. On some occasions, he had refused to take it. ([D.E. 125-11] at 53). On other occasions, it appears that he did take it. ([D.E. 125-11] at 110). Regardless, all three doctors found Mr. Holland competent (Dr. Ceros-Livingston did not determine that Mr. Holland was competent because she believes that finding to be for the “trier of fact” but she did find that Mr. Holland met all the criteria for competency (i.e.: he could assist counsel, knew the nature of the charges, possible sentence, so on) to stand trial. ([D.E. 125-11] at 33-161). All three experts concluded that Mr. Holland would be able to conduct himself appropriately in court. All three experts said Mr. Holland cooperated, had behaved appropriately and understood the legal proceedings. Indeed, Dr. Bukstel testified that “I would say that as far as his awareness of the legal aspects of his case, more generally and specifically that he probably gave, among the individuals that I interviewed, he probably gave among the more sophisticated answers that I have received from people. In other words, he’s very astute and has a very clear and intellectual understanding of the legal process as it relates to his involvement in it.” (Id. at 60). Further, all three experts said that his prior hospitalization and probable brain injury from a beating in jail many years ago did not affect his competency. After argument, the trial court found: Mr. Holland has voiced concerns and issues in a most eloquent manner to this Court and testimony reveals that Mr. Holland has average or above-average intelligence and he is able to function properly and appropriately. His thought process is intact. He can answer questions put to him and respond appropriately. The Court considers these six factors as well as the observations of this Court of Mr. Holland through the period of time this Court has presided over these proceeding [sic] and finds that Mr. Holland is at this time competent to proceed and to and [sic] stand trial. (Id. at 143). Thereafter, from December 14, 1995, to March 22, 1996, the record reflects that only three hearings were held. The record shows that Mr. Holland was present but did not speak or make any statements during these hearings. There is nothing in the record to suggest that Mr. Holland disrupted the proceedings. It was not until March 22, 1996, that Mr. Holland first raised the idea of self-representation. On March 22,1996, court began with the argument of several defense motions. ([D.E. 125-14] at 35). Among other things, Mr. Lewis advised the court that Mr. Holland refused to see him at the jail and that Mr. Holland would like to address the court. Mr. Holland first argued that Mr. Lewis was incompetent. He notified the court that he had still not seen depositions which had been court ordered when Mr. Delegal was Mr. Holland’s counsel. Mr. Holland also requested crime scene and autopsy photos (Mr. Holland believed these items were vital to his defense because of where the bullet wounds were and the fact that the deputy was wearing a bullet proof vest.). ([D.E. 125-14] at 50). Mr. Holland’s primary complaint was that he had not been given the documents that he had requested multiple times, including crime scene photos, autopsy photos, and trial transcripts. Mr. Holland advised the trial court that his and Mr. Lewis’ “elient/lawyer relationship has deteriorated.” (Id. at 45). Mr. Lewis advised the trial court that Mr. Holland did, in fact, want copies of the autopsy photos but he would not give them to Mr. Holland because he “didn’t think it proper or necessary.” (Id. at 46). Also, Mr. Lewis had not provided Mr. Holland with all the transcripts but did provide him with the ones he thought “necessary and important for him to have.” (Id.). The trial court stated that “[t]he Court candidly has heard Mr. Holland in a very coherent and organized manner express his thoughts — .” (Id. at 48). Mr. Holland interjected and continued to request new counsel until he finally asked “[o]ne last thing, and if I am allowed to represent myself will I be entitled to those things and present those things, and have those things in my possession?” (Id. at 53). At that point, the court addressed Mr. Holland: THE COURT: Mr. Holland the Court will be happy to conduct a Ferretta [sic] inquiry to make a determination whether or not you’re able to represent yourself, but I don’t think you have had any training in the law. Yes; you have sat through your prior trial. You’ve been involved in a capital litigation. You haven’t demonstrated— This is the first time that you’re coming to the Court and even making a suggestion of representing yourself. THE DEFENDANT: I asked the question would I be entitled to have photographs and be entitled to have photographs and be able to even view the victims and to present them and everything I want to know. THE COURT: Mr. Holland, just the mere question that you’re asking the Court is a procedural question. It’s one that is governed by the rules of evidence as well as the criminal rules of procedure. THE DEFENDANT: I’d like to take procedure— THE COURT: And just not to have the answer to that question and have to ask the Court to answer it evinces to the Court as yet you don’t have the requisite legal ability to represent yourself, so I don’t think I need to go much further than this. Mr. Holland’s [sic] made complaints as to all counsel that have ever been appointed to represent him since his indictment in this case that pertains to his first trial, as well as counsel, since the mandate remanding the case for new trial. The Court finds both Mr. Lewis and Mr. Baron— THE DEFENDANT: Your honor- — ■ THE COURT: Mr. Holland, I’m going to be making a statement now. — are competent, as well as effective counsel are under their oath as attorneys and the Court is confident to provide Mr. Holland with 100 percent of their loyalty THE DEFENDANT: Aren’t you going to inquire, you Honor, and ask them some questions about what I just said, because I told you I was going to ask those and then let him respond and I had some other things. THE COURT: Accordingly, Mr. Holland’s ore tenus motion to disqualify his counsel, as well as his ore tenus motion to recuse the Court are denied. The Court enters its’ written order at this time. Let us talk about scheduling, counsel. I know you have a problem with Doctor Buckstell and completing Doctor Bucks-tell’s evaluation. I don’t know if Mr. Holland is or is not going to voluntary participate in that process. The only comment that the Court can make, if Mr. Holland evinces today before the Court as he has throughout the pendency of these proceedings that I’ve sat on, a behavior and mental ability which is consistent with the findings that each of the experts whose testified before this Court that Mr. Holland is competent. (Id. at 54) (emphasis added). The court was about to conclude the hearing when Mr. Holland inquired as follows: THE DEFENDANT: I just want to say something else. Can we go through this procedure of self-representation? I think it is very important right now, because you stated there is a way to do it. THE COURT: The Court will at this juncture conduct a Ferretta [sic] inquiry. Mr. Holland, if you’d be good enough to tell the Court of your educational experience. THE DEFENDANT: Well, I have a GED, but what I’m asking you, your honor— THE COURT: I need to ask you certain questions in order to be able to make this decision. THE DEFENDANT: Okay. THE COURT: Okay. THE DEFENDANT: I have a GED. THE COURT: Tell the Court what legal training you have or what training you have that would assist you in being able to represent yourself charged with a capital crime as well as other crimes. THE DEFENDANT: Would you repeat the question, please? THE COURT: Tell me in simple terms what legal or other training you have that would assist you to represent yourself in proceedings of this nature. THE DEFENDANT: Well, from what I have seen in the evidence, Ray Charles could come in here and represent himself and Stevie Wonder, so I don’t need much legal training to do all that. I mean anybody can see it. That it doesn’t make sense what Mr. Satz and his people are saying. His people is saying and what my people is saying right along with them. You know, it doesn’t take much to see it and a jury could see it. THE COURT: Let’s talk about your ability, for example, to select a jury to make proper legal objections, because the start of the trial— THE DEFENDANT: Well, I think I can do it. I can do better that what they were doing in here today in trying to do the questionnaire. I could do that. THE COURT: Do you have any idea how to examine witnesses? THE DEFENDANT: Well, I won’t be disrespectful, your Honor. I’ll ask them the questions, try to ask them as properly as I can. THE COURT: How about to make legal objections? THE DEFENDANT: Well, that may be kind of difficult if the judge doesn’t allow you to do, like you’re going to do to me sometimes but they — I can make the objection properly. THE COURT: Any training you’ve had, any books you’ve read? THE DEFENDANT: No. THE COURT: Any anything? THE DEFENDANT: No, but what I am trying to tell you is, you know, I won’t violate any rules here. I won’t be disruptive. THE COURT: Do you know the rules that you could violate? THE DEFENDANT: No, but I’m just saying common things that — don’t interrupt people, something like that. THE COURT: I don’t think the Court needs to go much further in its’ effort to conduct a Ferretta [sic] inquiry. The Court dearly finds Mr. Holland does not have any specific legal training, is not familiar with the rules of evidence, nor trial procedures, is not familiar with how a trial is conducted, even though he’s sat through them in the past. THE DEFENDANT: If you could give me a pamphlet or something to study, maybe I could have [sic] be ready by then. THE COURT: Mr. Holland, people go to law school for years and then spend additional years being able to acquire such knowledge. THE DEFENDANT: Suppose I don’t want to question any witnesses? THE COURT: Mr. Holland, you would be by blanketty [sic] making the statement that you’re going to allow the State just to present witnesses and you’re not going to ask anything? THE DEFENDANT: Why do I have to have legal training to represent myself? That’s what I want to know. THE COURT: I can’t argue with you, Mr. Holland. I don’t intend to. I’m going to deny— THE DEFENDANT: Because if I get up in front of the jury— THE COURT: I’m going to deny your request pursuant to Ferretta [sic] to represent yourself. Id. at 55-58. (emphasis added). Thereafter, the court issued a written order which stated “[d]efendant’s motion to represent himself is denied after court having conducted a Farretta [sic] hearing, finding that the Defendant is incapable to represent himself.” ([D.E. 125-78] at 88) (emphasis added). The case proceeded with Mr. Holland being represented by Mr. Lewis and Mr. Baron. From time to time, Mr. Holland voiced complaints regarding his counsel and access to documents. However, on August 2, 1996, defense counsel filed a motion for Mr. Holland to be given an MRI. During the hearing; Mr. Holland again requests that his attorneys be removed and that he be given new attorneys. The court summarily denied the request. The court granted the motion for a MRI. Then, Mr. Holland again raised the issue of the deposition transcripts. He had received some but not all. He also advised that he did not have a complete witness list and he requested one from counsel. Mr. Holland then continued to voice his concerns to the trial court at which point the court interrupted and said: THE COURT: Mr. Holland, understand something, and I think we’re really getting to the point where this needs to be made, a statement needs to be made. You have been appointed two very fine capable counsel, they are representing you, Mr. Holland. You’ve already indicated that you do not have the wherewithal in your education your experience with the — . THE DEFENDANT: I never told you that. THE COURT: — to represent yourself? THE DEFENDANT: I never told you that. THE COURT: And the Court has already been through this. Mr. Holland, candidly, your attorneys are representing you. The Court has given you all of the opportunity to have review [sic] your deposition. And Mr. Lewis is working into getting those depositions through Broward jail. And candidly, they are representing you for trial. THE DEFENDANT: I have one thing to say, and I’ll let you go — really two. On pro se, to proceed on my own. I want to know if I would have enough time and everything to study my case. Number two is when Mr. Lewis testified for Mr. Delegal for his motion. And I have something I want to tell you, how I asked them to ask for your recusal. And I have many grounds why you should be reaccused [sic]. When he testified at Mr. Delegal’s motion for compensation, he said he received $34,000, by the way. I don’t know if that is true or not, I’m just going by what I know. But when he testified at that hearing— let me tell you what it is now, he abandoned his duty and loyalty to me, because a lawyer should not represent a client if the lawyer’s exercise of independent judgment in the representation of that client may be material [sic] by a lawyer’s responsibility to another client or third person or by that lawyer’s own interest. And he rents office space from Mr. Delegal and Mr. Delegal is a long time friend. He didn’t care anything about me. He now has denied me effective assistance of counsel because his loyalty was impaired because he couldn’t consider, recommend, or carry out any appropriate cause of action for me, because — I have some grounds or appeal that I was going to argue that Mr. Delegal was ineffective in different issues. Now he does nothing but voucher — to vouch for Mr. Delegal when he testified for him, to show everything was in order and he did a good job on this. How could have [sic] done a good job, but when he was stalking his wife and getting alcohol and drugs and arrested all of them times and everything — I’m saying there is a conflict of interest. Who knows what he’s been doing behind my back. You see what I’m saying, there is a conflict of interest where he’s— THE COURT: Mr. Holland, obviously, I did not preside over the fees hearing. THE DEFENDANT: I tried to bring it up in front of Judge Cohn, C-O-H-N and he didn’t want to hear it. But what I want to ask you: Why do you think that I said I couldn’t handle my Defense, you think I am not qualified? THE COURT: Mr. Holland, Mr. Lewis did you just testify as to reviewing the file as to Mr. Delegal’s work? MR. LEWIS: Yes, Judge. At the [sic] Judge Cohn’s request I appeared at the hearing and testified as to the work that had been done on the case prior to my taking it over. THE COURT: Then the ore tenus motion to disqualify Mr. Lewis based upon his testifying Judge Cohn’s request is denied as to Mr. Holland’s request to represent himself. The Court is going to conduct a Faretta inquiry at this time. Mr. Holland, do you want to raise your right hand. THE COURT: Okay. Sir, why don’t you tell us you’re education, how far you went in school. THE DEFENDANT: I have a GED. THE COURT: When did you acquire that GED? THE DEFENDANT: You said when or where? THE COURT: When. When. THE DEFENDANT: It was when I was in prison, I believe it was 1980. THE COURT: Since you’ve obtained your GED, have you obtained any other educational training, experience. THE DEFENDANT: Well, no, I haven’t. THE COURT: Okay. Tell me specifically what legal training you have? THE DEFENDANT: Well since I have been getting arrested, I know a little things here and there about the law. I’ve been reading cases now since this time. I’ve been studying a little bit on the law and I’ve become familarized a little bit where I think I can handle my case. I know my main thing is to able to organize and argue the way I want to argue and question witnesses, subpoena and to look at all discovery that’s— THE COURT: Tell me what you know about the rules of procedure. THE DEFENDANT: Ah — see, what I’m trying to point out to you, Judge, Your Honor— THE COURT: Please respond to the Court’s question, Mr. Holland. THE DEFENDANT: I will. I know that if I’m going to participate in a trial, I can have Voir Dire and ask witnesses, I mean, jurors certain questions. I can pick my own jury. I would object when the Prosecutor, Mr. Michael Satz, is out of line and when it’s time for me to object. THE COURT: How would you know when it’s time to object? THE DEFENDANT: (Defendant shakes his head) THE COURT: You’re nodding your head to the negative; you wouldn’t know, would you? THE DEFENDANT: I don’t — I was being nodding my head in the negative. I would know to do it because I know when it’s not appropriate. THE COURT: Do you know that because of case law or because of the rules of procedure? THE DEFENDANT: I know it because — if you let me, may I give you an example? THE COURT: Sure. THE DEFENDANT: He may be questioning the witness in a bad way, and I can say he’s badgering the witness. THE COURT: Okay. Now you are talking about witness instead of selecting a jury. THE DEFENDANT: What was your question again? THE COURT: How would you know when to object, how would you know the legal grounds or case law to support your objection? THE DEFENDANT: Say it again. THE COURT: Okay. I said it as many times as I am going to. Any questions, Mr. Lewis that you have? THE DEFENDANT: What I was going to tell you— THE COURT: Any questions you have? MR. SATZ: No, Your Honor. THE DEFENDANT: I was going to tell you this, you can give me standby counsel. And to answer your question, like on Matlock. THE COURT: A TV show? THE DEFENDANT: They say, speculation. THE COURT: Matlock TV show? THE DEFENDANT: I’m using it as an example to answer your question. I was saying that is speculation or no foundation. But I know what I would object to it and I wouldn’t be out of order or disruptive in any kind of way. THE COURT: The Court having conducted a Faretta inquiry, the Court finds Mr. Holland is not able to adequately appropriately represent himself. THE DEFENDANT: Or you can apply me— THE COURT: The Court’s ruling at this juncture. Nor comply with the Court’s order, nor with the applicable rules of evidence, rules of criminal procedure, as well as case law. THE DEFENDANT: One more thing. THE COURT: Mr. Holland is in need of counsel both in— THE DEFENDANT: What about stand by counsel? THE COURT: — both in the proof phase or guilt phase of the case, as well as in a possible penalty phase. And as such, Mr. Holland’s motion to represent himself is denied. The Court’s in recess. THE DEFENDANT: Can I ask one more questions, then I’ll leave it alone, Judge. Your honor, please. THE COURT: One more question, Mr. Holland? THE DEFENDANT: Listen to me. I am not trying to cause you any problem. I’m trying to know this for myself. When I’m dealing with Bukstel or Mar-tell why is it a feeling that I have that I’m being forced on here, and like I said the conflict of this and how- — explain this to me, Your Honor. How it’s like I’m forced to do this and that when it’s obvious that I’m being incompetently represented. THE COURT: All right. Mr. Holland I can’t answer that question for you. And the Court will be in resist [sic] at this time. (Thereupon, the hearing was concluded.) ([D.E. 125-15] at 99-108.) (emphasis added). On August 26, 1996, defense counsel moved to withdraw. A hearing was held. Defense counsel advised the trial court that Mr. Holland believes “that he would be better off handling this on his own based on the representation that he has had in the past from Mr. Giacoma, Mr. Tindall, Mr. Delegal, myself and Mr. Lewis. His belief is he can do a better job.” ( [D.E. 125-16] at 8). Before Mr. Holland made any statements, the trial court made a record of prior Faretta inquiries to Mr. Holland. In that regard, the court made the following findings of fact on the record: Mr. Holland on numerous occasions has indicated that he would rather represent himself. I believe it was on in July 25th this Court conducted a Faretta Inquiry. And the Court has had previous dialogue with Mr. Holland regarding his abilities, one, to understand what is taking place and the seriousness of the charges. And certainly, I believe Mr. Holland is aware that he faces the possibility of the imposition of the death penalty. The Court discussed with Mr. Holland the factors of his childhood, which the Court is aware from prior hearing, the facts from prior hearings. Mr. Holland has suffered an injury to the head and was hospitalized at Saint Elizabeth’s in Washington D.C. while he was incarcerated approximately — correct me if I’m wrong — ten, twelve years ago, approximately; is that right? He has indicated that he has obtained a GED since he’s been incarcerated. Mr. Holland has obviously sat through his prior first degree murder trial, but that is not exactly correct, because due to Mr. Holland’s behavior Mr. Holland was removed from that courtroom and watched that proceeding on closed-circuit television. So Mr. Holland has previously demonstrated, before Judge Futch in his prior trial of this case, his inability to follow the Court’s orders and decorum required to be in a courtroom. The Court discussed with Mr. Holland his knowledge of the law and his ability to make those objections which are necessary skills to present his own case. And Mr. Holland to date, has [not] demonstrated his ability to the Court to do so. Mr. Holland is still, from my understanding by the pleadings that are in this case, relying on the defense of insanity. I believe that touches upon his mental condition and ability to understand the nature as well as the complexity of this case. Now the Court having said that, the Court is going to combine a Faretta Inquiry as well as a Nelson Inquiry to Mr. Holland’s reasons and desires to have both Mr. Baron as well as Mr. Lewis discharged as his Counsel. ([D.E. 125-16] at 13). The trial court then allowed Mr. Holland to speak at great length regarding why he wanted to discharge his counsel and represent himself. The trial judge then questioned Mr. Holland’s attorneys regarding their qualifications, how long they had been members of The Florida Bar, and, at Mr. Holland’s initiation, the race and ethnicity of their former clients. (Id. at 69-102). Specifically, the trial judge inquired as to the preparation needed for the penalty phase of a capital trial. The trial court then determined that Mr. Holland’s attorneys were “prepared to effectively represent him at trial.” (Id. at 102). The trial court then chronicled Mr. Holland’s complaints with his current and prior attorneys and also put into the record that while he was not present at Mr. Holland’s original trial that the court “did have the opportunity to review the trial transcript — it is clear from the testimony presented that Mr. Holland conducted himself in such a manner that it was necessary for him to be removed from the courtroom during trial.” (Id. at 103). As to Mr. Holland’s current request to represent himself, THE COURT: He says he wants to do anything he can in his defense. In order to do that, the best thing he can do is cooperate fully with his Counsel, who have been working hard and effectively in trying to present his defense. On April — I’m sorry on August 2nd the Court discussed a Faretta Inquiry and the Court made clear to Mr. Holland the issues as to his education and to his legal experiences and to his knowledge of both criminal law and his procedures. The one issue that is also glaring is Mr. Holland’s ability to comply with the Court’s orders, to properly and simply to do that which he’s ordered as well as to comply with courtroom behavior. And at his last trial evidenced an inability to have done so. THE DEFENDANT: May I say something, You Honor? THE COURT: Yes, you may Mr. Holland. THE DEFENDANT: Well since I’ve been back here, since I came back from death row, you haven’t had any disturbances from me. I don’t know why you would say that. You’re going by my last trial, but that’s a whole different ball game. You had any disturbances; if anything you’ve been disturbing by not giving me time to air myself and state to you, in an orderly fashion, why I feel my attorneys are incompetent. THE COURT: Mr. Holland, I think the record will speak for itself. And the Court’s been very, very patient with you more so than, I think, you find most other judges any where— THE DEFENDANT: You said that. THE COURT: — give you the opportunity and time to speak to the Court in the passed [sic] as well as today. Mr. Lewis, Mr. Barn [sic] based on your preparation of the case, it is still your defense to proceed with the defense of Insanity? MR. LEWIS: Yes, Judge. THE COURT: Based upon that and the prior inquiries as well today’s inquiries, the Court’s going to deny Mr. Holland the opportunity to represent himself. The Court specifically finds that both his lack of formal legal training, lack of understanding of both the criminal law as well as procedure, his alleged defense or defense actually, of insanity and the complexity of this case. (Id. at 105-06) (emphasis added). The trial court’s written order read as follows: “CT denies Mr. Holland to represent himself. M/Withdraw denied. Nelson Inquiry Held and Continued Faretta Hearing Conducted.” ([D.E. 125-79] at 71). Afterwards, Mr. Holland’s case proceeded and he attended hearings with minimal or no comment. However, this changed on September 18, 1996, on the eve of trial. Initially, Mr. Holland asked the court to discharge his attorneys and he also requested a suit to wear for his trial. ([D.E. 125-17] at 112). The court denied his request as to counsel but granted his request for a suit. (See id.). Mr. Holland then advised the court that he cooperated with all the State’s expert witnesses and did the MRI examination. Mr. Holland then again requested to represent himself. THE DEFENDANT: If you don’t discharge them, I would like to represent myself because I feel I can win my case, you know. I can win it and I would like to represent myself. THE COURT: Mr. Holland, these are issues the Court previously addressed, previously ruled on. There is nothing new. THE DEFENDANT: I wasn’t found competent then, I was found competent now, and I’m literate and I’m understanding and I would like to voluntarily do my own defense. THE COURT: This Court found you 'competent several months ago and entered it’s order. The motion to discharge trial counsel is denied. Motion to represent yourself is denied. THE DEFENDANT: Well, my attorneys haven’t been to the crime scenes and they haven’t told me why they feel like going to the crime scenes is not necessary. Also, they have suppressed evidence, I’ve shown them evidence that would prove my innocence and they are suppressing evidence. THE COURT: The Court’s ruling remains. ([D.E. 125-17] at 115). After hearing, the trial court entered an order that defendant’s “renewed motion to represent himself denied.” ([D.E. 125-81] at 45)'. In advance of trial, Mr. Holland had made several timely requests to represent himself. All of his requests were denied. On September 24, 1996, jury selection in Mr. Holland’s re-trial began. The entire trial from jury selection to the court’s imposition of the death sentence spanned a five month period. Re-Trial On the first day of the re-trial, but before the voir dire of the jury, Mr. Holland again requested to represent himself. THE DEFENDANT: Weil, as I have been telling you up until now, I would like you, for you to dismiss my attorneys because they are incompetent and I have more reasons if you would like to hear them also. Before, I had asked you if you don’t discharge my attorneys, to let me represent myself, because I can win my case. But then you asked me about how I would handle my defense and I told you, well, you asked me how I would object and everything, and I gave you the best example at that moment, but I can better clarity that, because you may use that against me. I told you I would do it like on Matlock. I think I better clarify for you. I said on Matlock, when they object for speculation, or object for lack of foundation, but I will also object in other ways, also, for inadmissible evidence, and so forth. So, I would like you to let me represent myself, if you don’t want to dismiss these incompetent attorneys. They are not trying to do anything for me. * * * THE COURT: Additionally, Mr. Holland, the Court’s rulings previously entered, are the same rulings today. You’re being denied the opportunity to represent yourself. You have filed a defense of insanity. You have been appointed Mr. Lewis and Mr. Baron to represent you. They are two very capable counsel. The Court has previously conducted numerous Ferretta [sic] inquiries and the Court denied you the opportunity to represent yourself. ([D.E. 125-18] at 8-11) (emphasis added). On October 1, 1996, during jury selection, Mr. Holland again requested that his attorneys be discharged and that he be allowed to represent himself. (See [D.E. 125-25] at 39). In desperation, Mr. Holland advised the trial court that it could “get rid of them now, you don’t even have to give me time to prepare. I’ll try to represent myself from right now. You let me do it, I’ll do it right now.” (Id. at 41). The court rejected this offer finding that “[y]ou’re not, candidly, prepared or capable of representing yourself. You have two fine lawyers doing it for you, and that’s the rule of the Court.” (Id., at 41-42). Mr. Holland continued to object to being represented by Mr. Lewis and Mr. Baron. Mr. Holland also argued that even though his request to represent himself was denied, he would still like to participate in the jury selection process, as long as cooperating with his counsel would not negatively impact his appellate rights. (Id., at 44). The trial court continued to deny his requests. The trial court then asked the attorneys if there was anything further. The Assistant State Attorney made the following statement: MS. MCCANN: Your Honor, just under the case law, you’ve inquired of Mr. Holland. I think it is appropriate to inform him that he could be representing himself have a Faretta inquiry, you’ve already determined he’s not competent to represent himself in these proceedings. THE COURT: The Court’s made its determination pursuant to Faretta. The Court’s [sic] had numerous inquiries and the Court is candidly satisfied that Mr. Lewis and Mr. Baron are effectively representing Mr. Holland. ([D.E. 125-25] at 53) (emphasis added). Thereafter, the court issued a written order which denied Mr. Holland’s requests to discharge his counsel and also found that “[t]his court has previously conducted a Faretta inquiry and has found that the Defendant is incompetent to represent himself.” ([D.E. 125-81] at 78). The following day, October 2, 1996, Mr. Holland advised the court that he was not satisfied with how his attorneys were handling jury selection. Mr. Holland had a specific question regarding his race as an African-American and the victim being a white police offer that he wanted presented to the jury. ([D.E. 125-27] at 8). Mr. Lewis advised the court that he had made a strategic decision to not ask that question. (Id. at 11-12). The court took a recess and allowed Mr. Holland to discuss this issue with counsel. After the break, Mr. Lewis advised the court: MR. LEWIS: Judge, while we were waiting for that juror. I can tell you that I spoke with Mr. Holland and asked him his advice on that issue about asking the additional question, would it make a difference, the fact that Mr. Holland is an African-American and one of the victims in the case is causation [sic] or white. He has requested that we reconvene the jury and that I ask that additional question. Again Judge, that goes against my better judgment. And I explained that to Mr. Holland. Quite frankly, unless the Court is going to order me to ask that question, I think it is so prejudicial to the case that I am not inclined to ask it. If you’re telling me because it is Mr. Holland’s wish that I ask that question, I will. But I’m strongly resisting it. I would ask the Court to order me to do it. THE COURT: Mr. Holland, did you hear what Mr. Lewis said? THE DEFENDANT: Yes, I did. THE COURT: Have you had time to think about this matter and time to discuss this with Mr. Lewis and Mr. Baron? THE DEFENDANT: What we said here. THE COURT: Do you understand they’re recommending and their advice that this, particular question not be asked of the jurors and they told you why, as they have the Court. THE DEFENDANT: I have a feeling inside me that that is. a very important question to ask. THE COURT: Mr. Holland, if you want the question asked I’m going to direct Mr. Lewis to ask it for you. That’s entirely up to you. You’re on trial and if you feel the question is that important — and candidly, it’s a discretionary call. And different attorneys may have different strategies or beliefs as to what is prejudicial or not to their client. Mr. Lewis has given you the best advice as has Mr. Baron, if you want the question asked it will be asked. ([D.E. 125-27] at 15-16). Thereafter, Mr. Holland’s race-based question was asked to the venire panel. On October 3, 1996, the day after the jury had been selected, Mr. Holland again requested to have his attorneys discharged and be able to represent himself. THE DEFENDANT: I tell you what, Your Honor, let’s do it like this — I’m not going to cooperate with these attorneys. Okay. Just let me represent myself. These attorneys are incompetent. It goes to show you right here you try to cover it up, you try to cover it up by trying to do all this about the tape and everything. It’s coming out that you’re not going to finish with your game plan, whatever you’re trying to do to cover it all up. THE COURT: Have you had a chance — - THE DEFENDANT: It’s obvious I can represent myself, Your Honor, that’s what I would like to do. I’m competent. I’m literate. I’m understanding. And I’m voluntarily exercising my informed free will. I can represent myself. I don’t need these no good attorneys. They already railroaded me through the jury process, picking that old, stupid jury in the prosecution’s favor. ([D.E. 125-30] at 87-88). The trial court did not address Mr. Holland’s request and recessed the hearing. The issue of self-representation presented itself again on the next day of trial. During a hearing on the State’s motions in limine, Mr. Holland again raised his attorney’s incompetence and his desire to represent himself. (See [D.E. 125-31] at 15-24). Again, the Court did not address Mr. Holland’s request. (Id.) On October 8, 1996, the court held a hearing on the defense’s motion in limine. Before the hearing began, Mr. Holland addressed the court: THE DEFENDANT: Your Honor, can I say one thing? Yeah, I would like to discharge my attorneys because they are incompetent and if you don’t want to discharge them, let me represent myself. THE COURT: Mr. Holland, even my patience at some point ends. THE DEFENDANT: The only reason that I — • THE COURT: I’m tired, candidly, Mr. Holland, every time we come in the door, hearing the exact same speech from you. I’ve heard it. It’s on the record. Your motions are denied and that’s it. THE DEFENDANT: Can I just say one thing, Your Honor? THE COURT: What? THE DEFENDANT: The only reason I cooperated with them, I didn’t want to disobey your court order, but now I see that I don’t think I should have cooperated with these attorneys and I’m sorry I did it. I would have preferred to represent myself. THE COURT: Mr. Holland, if you decide to cooperate with your attorneys or you decide not to is your decision. The Court’s already addressed the matters fully and completely and you do whatever you feel you want to do and that which is in your best interest.' The attorneys have been appointed to represent you. They are extremely capable, competent counsel and they will continue to represent you. Mr. Holland, you do not have the first idea, candidly, of how to properly represent yourself and that’s it. THE DEFENDANT: I can do better than what they are doing. I don’t think because I don’t have the legal experience to do it, I should be able to decide if I want to represent myself. If a person can’t represent themselves, I don’t see why we have a court of law. He who represents himself has a fool for a client, and I’m a fool. I want to represent myself. THE COURT: The stakes are too great for you to represent yourself. The Court denies your motion. ([D.E. 125-31] at 82-85) (emphasis added). Mr. Holland’s defense presented his case the following day. Over his continued objection, Mr. Holland was represented by Mr. Lewis and Mr. Baron during the remainder of his re-trial. On October 24, 1996, outside the presence of the jury, Mr. Lewis advised the court that the defendant was not going to testify and the defense was planning to rest the following day. (See [D.E. 125-45]). However, the next morning, Mr. Holland advised the court that he had “done some thinking” and he would like to testify in his own defense after all. ([D.E. 125^16] at 116-17). After a significant amount of indecision, Mr. Holland ultimately decided to testify. Mr. Holland indicated that he must do so because the trial court “forced upon me, these no good attorneys.” ([D.E. 125-48] at 19). The trial court advised Mr. Holland multiple times regarding his rights to either testify or not testify. (Id.). The trial court asked questions in order to determine if Mr. Holland was making a knowing and voluntary waiver of his rights. (Id.). Then, the trial court found that his waiver was knowing and voluntary. On October 28, 1996, Mr. Holland took the stand in his own defense. (See [D.E. 125-48]). Mr. Holland testified to questions posed to him by his counsel on direct examination rather than testify in the narrative. (Id.). Mr. Holland’s testimony spanned a period of days. (Id.). Thereafter, the trial court allowed Mr. Holland to actively participate in the charge conference and jury instructions. (See [D.E. 125-59]). At one point during a disagreement between Mr. Holland and his counsel regarding a lesser included offense in the jury instructions, the court allowed Mr. Holland to make a waiver. THE COURT: Do you understand that if you were to be found guilty of any of these lesser included offenses, that you’re asking for, that the Court’s telling you are not charged by indictment, that you waive for now and in the future any claim that you could not be found guilty of those lesser included offenses; do you understand that? THE DEFENDANT: I understand that, but like the one yesterday of the lesser felony murder, if my attorneys would have gotten up there— THE COURT: I’m trying to stay focused on one thing. I know it’s your intention and desire that you’d like to move on one thing to another. I like to stay on one thing. THE DEFENDANT: I told you over and over I understand. THE COURT: Well the Court finds the waiver to be knowingly and intelligently. ([D.E. 125-62] at 33) (emphasis added). On November 6, 1996, the jury found Mr. Holland guilty of first-degree murder, robbery, attempt to commit sexual battery upon a person twelve years of age or older with great force, and attempted first degree murder with a weapon. ([D.E. 125-64] at 132-33). Following the verdict and in advance of the penalty phase, Mr. Ho