Order — No. 1:21-cr-00216 (Dkt. 9, W.D. Tex.)

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An order in United States v. Michael Fullerton, Case No. 1:21-CR-00216-RP, in the U.S. District Court for the Western District of Texas, Austin Division, filed November 1, 2021 as Document 9 (3 pages) and signed by Magistrate Judge Susan Hightower. It states that at an initial appearance on October 29, 2021 the defendant waived his right to counsel and chose to represent himself, and that the Court, after a colloquy on the disadvantages of self-representation, found the waiver knowing and voluntary. The order appoints the Office of the Federal Public Defender as standby counsel, citing Faretta v. California, and advises the defendant that the trial court may terminate self-representation for serious and obstructionist misconduct.

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           Case 1:21-cr-00216-RP Document 9 Filed 11/01/21 Page 1 of 3




                            UNITED STATES DISTRICT COURT
                             WESTERN DISTRICT OF TEXAS
                                   AUSTIN DIVISION
    UNITED STATES OF AMERICA,                       §
                Plaintiff                           §
                                                    §
    v.                                              §        Case No. 1:21-CR-00216-RP
    MICHAEL FULLERTON,
                                                    §
                Defendant                           §


                                             ORDER

   On October 29, 2021, Defendant Michael Fullerton appeared before the Court for an initial

appearance. The Court advised Defendant that he has a constitutional right to an attorney, and that

if he is financially unable to obtain counsel, the Court would appoint an attorney to represent him.

Defendant stated that he waived his right to counsel and intended to represent himself.

   The Court engaged in an extensive colloquy with Defendant on the implications of self-

representation in a felony criminal case and strongly advised Defendant against it. The Court

informed Defendant of the many advantages to having an attorney and the many disadvantages of

self-representation, including, among others, Defendant’s lack of familiarity with the Rules of

Evidence, the Rules of Criminal Procedure, and court procedure; his limited access to witnesses;

and that he would not be able to claim his own incompetence as a basis for an appeal or a new

trial. The Court advised Defendant that a trained lawyer would better defend him and strongly

urged Defendant not to represent himself.

   Defendant testified that he understood and was able to weigh the dangers and disadvantages of

representing himself. Nonetheless, Defendant expressly and repeatedly stated that he desired to

represent himself and did not wish to retain an attorney or have one appointed to him at the present

time.
            Case 1:21-cr-00216-RP Document 9 Filed 11/01/21 Page 2 of 3




   Defendant, who is 48 years of age, appeared to be fully competent during the hearing.

Defendant testified that he holds a degree in ministerial studies. Defendant further testified that his

decision to waive his right to counsel was voluntary; that he has never been diagnosed and treated

for a mental illness; and that he was not suffering from any mental or physical condition nor under

the influence of any drugs, alcohol, or medication that interfered with his ability to understand the

Court’s questions or the issue of self-representation. Accordingly, the Court found that Defendant

knowingly and voluntarily waived the right to counsel, and therefore permitted him to represent

himself.

   The Court nonetheless will appoint standby counsel in order to attempt to mitigate some of the

prejudice Defendant otherwise may suffer by representing himself in this case. In Faretta v.

California, 422 U.S. 806, 834 n.46 (1975), the Supreme Court stated that a court “may – even over

objection by the accused – appoint a ‘standby counsel’ to aid the accused if and when the accused

requests help, and to be available to represent the accused in the event that termination of the

defendant’s self-representation is necessary.” See also, e.g., McKaskle v. Wiggins, 465 U.S. 168,

184 (1984) (“A defendant’s Sixth Amendment rights are not violated when a trial judge appoints

standby counsel – even over the defendant’s objection – to relieve the judge of the need to explain

and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine

obstacles that stand in the way of the defendant’s achievement of his own clearly indicated

goals.”); United States v. Mesquiti, 854 F.3d 267 (5th Cir. 2017) (affirming conviction in self-

representation case where court appointed standby counsel). Defendant is advised that the trial

court may terminate self-representation by any defendant who deliberately engages in serious and

obstructionist misconduct. Faretta, 422 U.S. at 834 n.46.




                                                    2
       Case 1:21-cr-00216-RP Document 9 Filed 11/01/21 Page 3 of 3




Standby counsel hereby appointed is:

                         Office of the Federal Public Defender
                         504 Lavaca Street
                         Suite 960
                         Austin, TX 78701-2860
                         Phone: (512) 916-5025

SIGNED on November 1, 2021.




                                       SUSAN HIGHTOWER
                                       UNITED STATES MAGISTRATE JUDGE




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