The opinion of the court was delivered by: Vaughn R. Walker, United States District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner, a state prisoner incarcerated at Mule Creek State Prison in Ione, California, seeks a writ of habeas corpus under 28 U.S.C. § 2254. Per order filed on October 11, 2001, the court found that the First Amended Petition stated colorable claims-for relief under § 2254, when liberally construed, and ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.
Petitioner was convicted by a jury in the Superior Court of the State of California in and for the County of Santa Clara of two counts of attempted murder, two counts of rape, one count of forcible oral copulation, one count of dissuading a witness, four counts of corporal punishment on a cohabitant, and one count of forcible penetration with a foreign object. The jury also found true allegations that the attempted murder of one victim was premeditated and that both attempted murders involved the personal infliction of great bodily injury.*fn1
On March 4, 1997, the court imposed a life term for the attempted premeditated murder and added a four-year enhancement for inflicting great bodily injury. As to the other counts, the court sentenced petitioner as follows: a seven-year term for the other attempted murder with an additional four-year enhancement for inflicting great bodily injury; four consecutive one-year terms for each count of violence against a cohabitant; a consecutive three-year term for dissuading a witness; and four separate and consecutive six-year terms for the two rapes, penetration with a foreign object, and oral copulation. The court also imposed a restitution fine of $1,000 and victim restitution of $1,664.54.
On April 5, 2000, the California Court of Appeal issued an opinion affirming the judgment of conviction and, on July 12, 2000, the Supreme Court of California denied review. The instant federal habeas petition followed.
Viewing the evidence in the light most favorable to the verdict, the California Court of Appeal summarized the facts of the case as follows:
Defendant and Yvonne Garcia met in the mid-1980's
when they were teenagers. After 1990, they lived
together and had two sons Matthew and Brandon. Before
1993, defendant hit Ms. Garcia and received counseling
for domestic abuse. In 1993, defendant pleaded no
contest to assaulting another person with a deadly
After May 1995, defendant's behavior became even
worse. During this time, defendant and Ms. Garcia
argued frequently. Defendant beat her with a bat, hit
her with his hand, poked her with scissors, burned her
with a hot spoon, and shocked her with a stun gun.
Once, he made her disrobe and lie next to the stove,
closed the doors and windows, turned on the gas, and
started to flicker a lighter. She had to beg him to
stop. Another time, he made her disrobe and threatened
to stick a knife in her vagina if she did not keep
quiet. One day defendant found a real estate broker's
business card that Ms. Garcia had gotten from a
coworker. He became angry and accused her of having an
In June 1995, Ms. Garcia filled out an application
for a restraining order against defendant, citing
emotional, verbal, and physical abuse and threats.
However, she never filed it. Despite his
mistreatment, Ms. Garcia remained with defendant
because she loved him and thought she could help him.
Ms. Garcia testified that on the night of June 28,
1995, she had a night-time meeting at Home Depot where
she worked. Defendant and his father picked her up and
then drove defendant's father to his residence, where
he lived with his mother, defendant's grandmother,
Mary Martinez. On the way, defendant interrogated Ms.
Garcia about why she worked so late and accused her of
having an affair with the manager. Later, at the
house, defendant went into the bathroom with Ms.
Garcia and ordered her to remove her pants so he could
"check her." He inserted his finger in her vagina,
choked, and beat her. When Mary Martinez knocked on
the door, they left the bathroom. Meanwhile,
defendant's father called Ms. Garcia's father Rudy
Garcia and told him to pick her up before defendant
killed her. Mr. Garcia immediately called the police.
Officer Lori Perfili of the San Jose Police
Department arrived. Ms. Garcia, who was very upset,
told Perfili what had just happened and accused
defendant of previous domestic violence. Perfili
arrested defendant and brought him to the station.
There, he said that he and Ms. Garcia argued because
he wanted her to stay home and not work. He admitted
telling his father that he was going into the bathroom
to "check it out," but he did not explain what that
After the incident, Ms. Garcia told her father about
it. She was nervous and upset. In a statement dated
June 29, she reiterated what had happened and what she
had told Perfili about defendant's prior abuse.
Nevertheless, a few days later, Ms. Garcia pleaded
with her father to post bail for defendant because he
was the father of her children. Mr. Garcia agreed
because he wanted to help them get ahead. After
defendant was released, Ms. Garcia wrote a second
statement, saying she had fabricated what happened to
her to get even with him because she saw him talking
to a woman outside Home Depot and suspected he was
having an affair with her.
On direct examination at trial, Ms. Garcia confirmed
her original-story about what happened on June 28. On
cross-examination, however she recanted, saying she
had concocted the charges because she was angry after
finding a list of women's names and telephone numbers
in his pocket. She suspected he was cheating on her
and wanted to get him away from her. Later she felt
guilty that he was in jail and asked her father to
post bail. On redirect, Ms. Garcia reconfirmed her
original story, including his accusations, beating,
and digital penetration, and said that her written
recantation was a lie. She said that defendant had
asked her to write it, and she did so to make him
After defendant's release on bail, he threatened to
kill Ms. Garcia several times if she testified against
him. He also threatened to kill her family, saying,
"Do you want the baby to die?" Ms. Garcia then
intended to lie for him and therefore thought the
charges would be dismissed.
On July 21, 1995, defendant hid a tape recorder in
his and Ms. Garcia's bedroom. On July 23, he retrieved
the recorder, and throughout the day repeatedly played
the tape for Ms. Garcia because he thought he heard a
man's voice. He accused her of sleeping with their
13-year-old neighbor. Ms. Garcia heard nothing on the
tape and denied his accusation. Defendant called her a
liar, bitch, slut, whore, weasel, and mongrel. He
punched her in the face, beat her with a bat and
belt, poked her with scissors, and made her disrobe.
He also confronted the neighbor boy. Defendant told
Ms. Garcia that if he went back to jail, she would
die. Frightened, she hid a kitchen knife from him. She
did not leave the house, however, because she was
naked, the doors were locked, and she did not want to
leave her sons.
Ms. Garcia testified that during that day she had
sexual intercourse with defendant two or three times
and orally copulated him once. Although he beat her
before they had sex, she denied that he forced her to
have sex. However, she admitted that in a recorded
statement she gave police and later at the preliminary
hearing, she said defendant had used force or
threatened to do so. She described defendant as
"psycho" that day, which she attributed to drugs,
although she did not see him use any that day.
At about 9:00 p.m. that evening, Ms. Garcia's father
came by the house and knocked on the door. He had been
at a barbecue and during the course of the day had
consumed three or four beers. Defendant and Ms. Garcia
were in the kitchen, and he told her not to answer the
door. However, their son Matthew let Mr. Garcia in,
and he began to play with both children in the living
room. Matthew seemed nervous and upset and said that
defendant had choked his mother. At this time,
defendant told Ms. Garcia to act as if nothing had
happened. He went to the living room and asked Mr.
Garcia to go to the store. However, Ms. Garcia came
out and begged her father not to leave. She was
hysterical and said that defendant had stabbed her
with scissors, cut her hair, and threatened to kill
her. Defendant immediately pushed her into the
bathroom and choked her. He tried to shut the door,
but her foot was in the way. Mr. Garcia told defendant
to leave her alone and pulled the door open. Defendant
threatened him, pushed Ms. Garcia back out into the
hallway, and then picked up Brandon, who was with
Matthew nearby, and asked, "Do you want me to kill the
babies too?" Mr. Garcia took Brandon from defendant
and then brought both children to a neighbor and asked
her to call the police.
Meanwhile, defendant pushed Ms. Garcia into their
bedroom and onto the floor. He grabbed a sword that he
kept there and stabbed her in the stomach, saying
"Bitch, I told you not to say anything." Ms. Garcia
screamed for her father. When Mr. Garcia entered the
room, defendant was standing over Ms. Garcia, pulling
the sword from her stomach, and appeared ready to stab
her again. He called Ms. Garcia a bitch and said he
would kill everyone. Mr. Garcia rushed to protect his
daughter, but defendant hit him on the head with the
sword and then struck him in the face, knocking out
teeth and severing part of his tongue. Ms. Garcia
tried to pull defendant away, but he pushed her down
and stabbed her in the back. Mr. Garcia rushed at
defendant again and was stabbed through the arm. He
grabbed hold of the sword, and as he and defendant
struggled for it, he was wounded in the neck and
chest. Defendant was stabbed in the leg.
Ultimately, defendant released the sword, and when
Mr. Garcia got control of it, he told his daughter to
leave. Defendant fled past Mr. Garcia into the living
room. At this point, Ms. Garcia tried to call the
police, but defendant had previously disconnected the
telephone. She also tried to use defendant's cell
phone but could not get it to work. She then ran out
of the house to the neighbor or help but no one
answered the door. Mr. Garcia followed defendant out
of the bedroom, and defendant tried to block him in
the hallway with a large plastic children's slide. He
begged Mr. Garcia not to kill him. Mr. Garcia tried to
strike defendant with the sword, but defendant escaped
out the front door.
Defendant joined Ms. Garcia outside and urged her to
go with him, saying her father was going to kill him.
As they walked together, Ms. Garcia collapsed.
Defendant knelt next to her and begged her not to die
because he loved her. Mr. Garcia came out of the house
and was approaching defendant with the sword.
However, by this time Officer Tom Rogers of the
Campbell Police Department and other police officers
had arrived, and Rogers ordered Mr. Garcia to drop the
sword, which he did. Mr. Garcia told Rogers that
defendant had stabbed Ms. Garcia and threatened to
kill Brandon. Officer Harold Abbott of the Campbell
Police Department attended to defendant and Ms.
Garcia, and she told him that defendant had tortured
her all day long and that her father had protected her
from defendant. Abbott arrested defendant, and Ms.
Garcia and her father were taken to the hospital.
Officer Eric Pearson of the Campbell Police Department
took custody of the children, and Matthew told him
that "daddy choked mommy." Pearson later spoke to Ms.
Garcia, who said defendant had hit her with a bat and
Police searched defendant's house, took photographs
of the scene, and made a videotape of it. Among other
things, they found a knife underneath a microwave oven
in the kitchen, a stun gun, a baseball bat, two tape
recorders, and electric shears. A test of defendant's
blood revealed the presence of methamphetamine.
Ms. Garcia testified that after defendant's arrest,
they spoke numerous times over the phone. He also sent
her letters and cards from jail. She denied that he
attempted to influence her testimony. However, she
identified a group of letters she received just before
she was supposed to testify that the police had found
stuffed in a pillowcase in her bedroom. At first she
said that she did not recognize who wrote them. Later
she testified that defendant had written all or parts
of each one. She equivocated about whether she glanced
at, read some, or read all of them.
One of the letters (Exhibit 16) reads, "Yvonne[,]
you need to study these very well (Questions)[.] There
[sic] gonna be used by my lawyer in trial. The answers
are all there baby. . . . Mijos need me out there jus
[sic] remember that, I love you dearly momma."
Thereafter, the letter contained questions and
answers. For example, "Q# So your [sic] saying he
never force[d] you? Answer = Yes, I wanted it to
happen." In all, the document coached Ms. Garcia to
say that she was upset with defendant, wanted to get
even with him by fabricating the charges. However, she
did not realize how serious the charges and wanted to
tell the truth because he did not deserve to go to
prison. Although she explained to the prosecutor that
her allegations were false, he told her he would file
perjury charges if she did not stick to her original
story. "Q# Are you lieing [sic] for him now? Answer
In another letter (Exhibit 15), defendant says, in
pertinent part, "I'm hoping that you'll be able too
[sic] help me out on this situation. To be honnest
[sic] with you I'm geting [sic] desperit [sic] about
all these charges. As you can see I wrote questions
for you to steady [sic]. I know your [sic] afraid
about geting [sic] in trouble but I wrote it down so
that cant [sic] happen to you. Especially the part
about the D.A. your lawyer. Theres [sic] no way he can
do that because when you explain that to the jury he
wont [sic] be able too [sic] charge you. You wanted to
tell the truth but he more or less said if you do now
he well [sic]. He's forceing [sic] you to lie on the
stand. I have the same paper and I'll give it to my
lawyer to ask you! Keep steadying [sic] it and try to
remember you don't [sic] have too [sic] remember word
bye [sic] word but try and keep it mostly the way I
In another letter (Exhibit 17), defendant explained
that the prosecutor is charging him with dissuading a
witness based on a claim that he coerced her into
writing the recantation letter. After copying her
written recantation verbatim, defendant wrote, "You
need to more or less memorize your story so that [the
prosecutor] cant [sic] perjure you. Like I said before
he [sic] gonna try and say I made you write this and
that I coerced you. The ball is in your court babe its
[sic] up to you to make the next play."
Officer Kristan Gabrielson, a Santa Clara County
Correctional Officer, testified that on July 26,
1995, she overheard a conversation between defendant
and another inmate Binh Nguyen. Nguyen asked what
defendant "was in for." Defendant answered he was
there for stabbing his girlfriend. He then pointed to
the right side of his torso and then to his back.
Richard Ferry, a licensed counselor, testified as an
expert on battered women's syndrome. He explained that
the syndrome is a collection of symptoms typically
observed when there has been an abuse in an intimate
relationship, including depression, free-floating
anxiety, and exaggerated startle responses. He said
victims often develop distorted thinking to explain
the violence used against them. For example, victims
think violence is normal and justified. They think
they are responsible for and can control the abuse.
And rather than blame perpetrators, they will blame
drug use or other women.
Ferry noted that victims often learn to be
helpless, stop resisting abuse, and decline to escape
from it. He also described three phases of what he
called the "cycle theory of violence." First is the
tension building phase, where the perpetrator becomes
argumentative, clipped, and hostile. In response, the
victim tries to appease and mollify or minimize and
avoid interaction. This usually aggravates the
situation because the perpetrator feels abandoned and
starts getting violent. As tension builds, the victim
often precipitates the next phase of acute violence
simply to "get it over with." Thereafter, the
perpetrator experiences grief and remorse, promises to
change, and tries to woo the victim back. The victim,
in turn, succumbs and even assumes some responsibility
for the violence.
Ferry also explained the concept of "traumatic
bonding" between a powerful and a weak member of a
couple. For example, children in abusive homes will
often prefer them to foster homes; or hostages will
sometimes remain with their captors despite the
opportunity to leave. With respect to battered women,
they may adopt the abuser's attitudes and perspective
and feel truly in love with him. They may also try to
protect him from the consequences of his conduct by
recanting previous allegations of abuse.
Ferry opined that a recantation under circumstances
of abuse like those described by Ms. Garcia was
consistent with battered woman's syndrome.
Defendant testified that he started using
methamphetamine in March 1995. It gave him energy but
made him grouchy and paranoid. He admitted having
girlfriends, which made Ms. Garcia jealous, and as a
result they often argued. Defendant said his
relationship with Ms. Garcia deteriorated in May 1995
after he confronted Ms. Garcia about some stolen
Defendant testified that on June 28, he was
"curious" about Ms. Garcia's late-night meeting at
Home Depot. His main complaint to her was that he
wanted her to stay at home and take care of the
children and not work. She got angry and brought up
his affairs. At his father's house, they both had to
use the bathroom, and inside he again asked about her
meeting. When Ms. Garcia got angry and loud, he pushed
her. However, he denied hitting or choking her making
her pull her pants down, or digitally penetrating
her. He admitted telling Officer Perfili that he went
into the bathroom with Ms. Garcia to "check it out,"
but explained he only wanted to find out what had
happened that evening
Defendant denied that after his release on bail he
hit, beat, or shocked Ms. Garcia. He said he used
methamphetamine on July 21 and planted the tape
recorder to find out if Ms. Garcia was harassing his
girlfriends. Later, when they listened to the tape, he
questioned her about a noise he heard on it, and she
spontaneously denied having an affair. This made him
suspicious, and they argued most of the night.
On July 23, defendant was feeling tired and
paranoid. They had consensual intercourse twice and
orally copulated each other. He never hit her, used
force, or threatened her. He said he asked Ms. Garcia
about a missing drill, and later questioned the
neighbor boy about whether he had ever been in the
backyard or house but did not accuse him of having an
affair with Ms. Garcia. Later, Ms. Garcia got angry
because he did not take her to a church festival.
When Mr. Garcia arrived early that evening,
defendant and Ms. Garcia were acting cool toward each
other. Defendant testified that he asked Mr. Garcia to
go to the store for him, and suddenly Ms. Garcia
falsely accused him of torturing her, which, he
testified, was not true. Mr. Garcia, who smelled like
alcohol and seemed drunk, confronted defendant. He had
once threatened to kill defendant if he ever hit his
daughter. Ms. Garcia took the children into another
room. Mr. Garcia then punched defendant in the face,
and defendant pushed him back and ordered him to
leave. When Mr. Garcia came back at defendant,
defendant retreated to the bedroom. He denied that he
pushed Ms. Garcia into the bathroom. Mr. Garcia
pursued defendant into the bedroom, grabbed him, and
slammed him against the wall. As they started to
wrestle, Ms. Garcia screamed and became hysterical.
Defendant told her to be quiet. She tried to push
him, and he grabbed her by the throat. She in turn,
grabbed his testicles and squeezed them. Mr. Garcia
then picked up one of the boys, and as defendant tried
to take him back, both Ms. Garcia and Mr. Garcia
attacked him. He let go, and Mr. Garcia took both boys
out of the house. Defendant asked Ms. Garcia why she
had caused all of this commotion. At that point, Mr.
Garcia returned to the bedroom, grabbed defendant's
sword, and stabbed him in the leg. Defendant "snapped"
and grabbed Mr. Garcia by the throat. Ms. Garcia
started screaming at defendant calling him names and
joined in a free-for-all fight, at one point getting
between him and Mr. Garcia.
Defendant testified that he never got control of the
sword and did not see how Mr. Garcia or Ms. Garcia
received their wounds. He denied that he stabbed
either of them and surmised that it must have happened
when they were all struggling with each other. As the
fight continued, he pushed Ms. Garcia, and she ran out
the door. He was feeling dizzy, fled to the living
room, and tried to block Mr. Garcia with a children's
toy. Mr. Garcia followed, swinging the sword.
Defendant yelled "No, don't Rudy. Don't." Defendant
then went outside and met Ms. Garcia and told her that
Mr. Garcia was going to kill him. She was helping him
because of the injury to his leg, but she could not
breathe and collapsed. Shortly there after the police
Defendant testified that Ms. Garcia wrote her own
recantation, and he denied prompting her to do so.
Defendant also denied writing two of the letters
attributed to him (Exhibits 15 and 16) but admitted
writing one (Exhibit 17). He did so because he did not
want her to commit perjury. He wrote down what she had
said to the defense investigator so that she would
know the truth.
Defendant professed his love for Ms. Garcia. He said
he never planned or intended to kill her or her
father. He denied that he ever threatened anyone. He
claimed that Ms. Garcia fabricated all allegations of
abuse and specifically denied that he shocked her with
a stun gun, hit her with a bat or belt, put a knife in
her vagina, or threatened to blow up the gas stove. He
also denied burning Ms. Garcia with a hot spoon,
explaining that he had accidentally bumped into a hot
frying pan. He said he was not jealous when he found
the real estate agent's card; rather, he asked her
about it because he was interested in getting his real
Mary Martinez, defendant's grandmother, testified
that sometime after July 23, Ms. Garcia called her and
said that her father had threatened to kill
defendant, and when she stepped between them to
protect defendant, her father inadvertently stabbed
Miriam Martinez, defendant's aunt, testified that
after July 24, Ms. Garcia called her and said that
defendant had stabbed her and had tried to chop off
her father's head. However, Ms. Garcia called again
later and said she had lied and that she had thrown
herself between defendant and her father because her
father was trying to kill defendant. Ms. Garcia told
her she had tried to tell this to the prosecutor, but
he refused to believed her. Ms. Garcia explained to
Martinez that she had originally accused defendant
because she did not want her father to go to prison
and felt that defendant would "get off."
People v. Chaidez, No H016600, slip op at 2-12 (Cal Ct App. Apr 5, 2000) (alteration in original) (footnotes omitted) (Resp't Ex OO).
A federal writ of habeas corpus may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's 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." 28 U.S.C. § 2254 (d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, that application must be "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254 (d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. Id. at 412; Clark v. Murphy, 317 F.3d 1038, § 1044 (9th Cir 2003). While circuit law may be persuasive authority for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied. Id.
Petitioner raises three claims for relief under 28 U.S.C. § 2254: (1) the trial court improperly denied petitioner's retained counsel's motion to withdraw and petitioner's motion to dismiss retained counsel; (2) the trial court's abuse of discretion errors conceded by the state appellate court resulted in cumulative prejudice; and (3) the trial court improperly failed to instruct the jury on the lesser-included offense of attempted voluntary manslaughter.
1. Refusal to dismiss petitioner's retained counsel
Petitioner claims that the trial court violated his Sixth Amendment right to counsel when it refused to dismiss petitioner's retained counsel, Stuart Kirchick, upon motions by Mr. Kirchick to withdraw, upon a motion by petitioner to dismiss Mr. Kirchick, and in the face of an insurmountable conflict of interest. Petitioner also claims that the trial court failed to make an adequate inquiry into the alleged conflict.
Petitioner was represented by Deputy Public Defender Peggy Banks until February 1996, when retained counsel was substituted. At Mr. Kirchick's request, the trial date was then continued several times. After a pretrial conference in April 1996, an impasse was declared, and the case returned to stand-by on the Master Trial Calendar. In late July 1996, an impasse again was declared.
On August 26, 1996, Mr. Kirchick attempted to declare a conflict of interest, but petitioner was not present in court, and the matter was continued until August 28, 1996.
On August 27, 1996, Mr. Kirchick filed a motion to withdraw. In his supporting declaration, Mr. Kirchick stated that the case had been on trial stand-by for a month. He had received discovery, prepared a defense, and drafted motions in limine. Until then, he had no "extraordinary problems" representing petitioner. Mr. Kirchick further reported that on August 21, 1996, he visited petitioner in jail for 15 minutes and told him he would return the morning of August 23 and meet until noon. On that day, counsel arrived at 10:00 a.m., but there was no interview room available for the rest of the morning. Mr. Kirchick briefly met with petitioner, gave him some transcripts, and explained that they could not meet at that time. According to Mr. Kirchick, petitioner became agitated and did not believe his explanation. At the same time, a guard directed Mr. Kirchick to leave the area. As Mr. Kirchick started to leave, petitioner repeatedly asked what was happening. Mr. Kirchick explained that there was no available interview room and that he had been told to leave the area. Then, as Mr. Kirchick entered the elevator, petitioner "directed his arm straight towards me with his finger pointed at me and his thumb up as if he was holding a gun[.]" Mr. Kirchick interpreted the gesture as "a direct threat for my well being which I must take very seriously[.]" Mr. Kirchick dwelled on the incident for the next two days, becoming "more insecure and frightened" and then immediately filed his motion to withdraw.
Mr. Kirchick declared, "Given the current allegations against him, his past conduct with me and of course the latest threat, I do not believe I can zealously and adequately defend my client pursuant to the professional rules of ethics and my personal obligations to my client[.]" Consequently, Mr. Kirchick asked the court to permit him to withdraw as counsel due to a breakdown in the attorney-client relationship.
On August 28, 1996, the court summarily denied the motion:
(Whereupon, pursuant to the luncheon recess court
reconvened and the following proceedings were had:)
THE COURT: 9, Ernesto Chaidez. Also 10.
MR. KIRCHICK: He's present in custody. Stuart Kirchick.
THE COURT: The request to withdraw is denied.
MR. KIRCHICK: Thank you, Your Honor.
THE COURT: This matter is on standby, and I will
send it out for trial.