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United States District Court, N.D. California

July 9, 2004.

ANTHONY LAMARQUE, Warden, Salinas Valley State Prison Respondent.

The opinion of the court was delivered by: VAUGHN WALKER, District Judge


Petitioner was convicted after a court trial in the Superior Court of the State of California in and for the County of Santa Clara of being under the influence while in possession of a firearm, possession of a firearm by a felon, resisting arrest and reckless driving. The court also found that petitioner suffered three prior felony convictions within the meaning of California's Three Strikes Law and, on October 6, 1999, sentenced him to 25 years to life in state prison. The California Court of Appeal affirmed the conviction and on June 13, 2001, the California Supreme Court denied review.

Petitioner, a state prisoner at Salinas Valley State Prison, initially filed a pro se petition for a writ of habeas corpus under 28 U.S.C. § 2254 on November 27, 2001. The court gave petitioner 30 days to either pay the $5.00 filing fee or submit a completed in forma pauperis application. When petitioner failed to respond in time, the court dismissed the petition without prejudice on January 18, 2002.

  Petitioner refiled his petition as a new action on October 22, 2002. Respondent moved to dismiss the petition as untimely. On September 12, 2003, the court found that petitioner was entitled to equitable tolling and denied the motion to dismiss. The court then ordered respondent to file an answer to the court's earlier order to show cause why a writ of habeas should not be granted. Respondent has filed an answer to the order to show cause and petitioner has filed a traverse.


  The California Court of Appeal summarized the factual and procedural background of the case as follows:

At 1:27 am on November 7, 1998, San Jose Police Officers Davis and Johst were in uniform in a marked patrol car on Old Oakland Road when Davis tried to stop a car in which defendant was the driver and codefendant Patti Skeggs was his passenger. The car had made a left turn into the Casa Del Lago mobile home park without signaling. Though Davis turned on his lights and siren, defendant did not pull over. Instead he continued driving through the mobile home park. The officers noticed that defendant reached for his waist area and then, as he slowed the car, he reached toward the center console or passenger floorboard in an apparent effort to "conceal[] something." Seconds later, defendant stopped the car. Davis then exited the patrol car and ordered defendant to exit his car.
When Officer Johst approached defendant's car, defendant "spun the tires and took off." It was raining and the roads were wet as defendant drove through the small, confined area of the mobile home park at speeds up to "65 miles per hour." While so driving, defendant "almost los[t] control a couple of times and swip[ed] some bushes." At a dead end, he stopped and fled on foot. After a chase during which he ignored orders to stop, defendant was forcibly detained. Though he continued to struggle, "flailing about and trying to escape," he ultimately was subdued.
When the officers returned to where the cars had been left, Skeggs was waiting outside the car defendant had been driving. A search of that car revealed a backpack on the passenger side rear seat. Inside the pack was a bag containing two syringes, a cap with cotton and white residue, a pen tube, a glass narcotic smoking pipe, and Skeggs' California identification card. Under the front passenger seat was a loaded, operable .22 revolver. Its handle was facing the driver's side, and its location and placement were consistent with the driver, ie, defendant, "leaning over and placing it underneath the passenger seat."
Defendant and Skeggs were arrested. Both exhibited a multitude of symptoms which led officer Davis to believe they were under the influence of a controlled stimulant. A blood sample of defendant taken at 3:50 am contained cocaine and methamphetamine. Skeggs's blood sample also contained methamphetamine. The cap found in the backpack contained .98 grams of methamphetamine, a usable amount.
At the scene, when Officer Davis asked Skeggs about the gun, she told him she "didn't know anything about it." The car was registered to a Calud Castro in Castroville. Defendant's prior convictions were proved by documentary evidence.
People v. Feliciano, No H020798, slip op at 2-3 (Cal Ct App. March 21, 2001) (Resp't Ex 6).


  A. Standard of Review

  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. Rather, that application must also be unreasonable." Id at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "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, 331 F.3d 1062, 1069 (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.

  B. Claims

  Petitioner's sole argument is that the trial court's denial of his request for self-representation violated his constitutional rights.

  1. Background

  Petitioner was represented by a public defender from the time of his initial arraignment in November 1998. RT at 4. On July 3, 1999, the date set for trial, petitioner requested a two week continuance to attempt to retain private counsel. Id. Petitioner's counsel acknowledged the lateness of the request, but explained that petitioner had spoken to his family the night before when they realized that they in fact had sufficient funds to hire private counsel. Id.

  The trial court denied the continuance, stating:

Based on the information in this or the allegations in this Information the date of the offense is November 7 of 1998. It appears from the Court's records that the defendant made an appearance in court for the very first arraignment on November 12th of last year. On April 9th I believe of this year this defendant was held to answer to the charges in this Complaint and the matter was certified, was set for arraignment on the Information for April the 19th.
From April 19th the defendant appeared in court with arraignment on the Information and the matter was set on the Master Trial Calendar for June 7th of this year. The matter has been continued until — on the Master Trial Calendar from what I can gather from yesterday when the matter was ultimately assigned out for trial, and assuming all parties at that time indicated they are ready to proceed, I am assuming based on the informal discussions that Mr. Kennedy, you are prepared to try the case. The idea at this point that Mr. Feliciano is interested in hiring someone is very late in the day in terms of the case, and I am not going to grant a continuance at this time so that the defendant can explore that opportunity.
We are going to go forward with the trial. I think the defendant has had ample opportunity between November when he was arrested and as late as yesterday to hire a lawyer if that is, in fact, what he wanted to do. Your request for a continuance for that purpose is denied.
Id at 5.

  At that point, defense counsel noted that it was his belief that petitioner's request was not an attempt to delay the proceedings and stated that if the court denied the request he was still prepared to represent petitioner. Id at 6. Immediately after the court's ruling, petitioner moved to represent himself pursuant to Faretta v. California, 422 U.S. 806 (1975). Id. However, petitioner's counsel stated that petitioner was not ready to proceed with trial that day and requested two weeks to get ready. RT at 8. Petitioner completed a written Faretta waiver form which the trial court reviewed. Id. The trial court then denied petitioner's motion as untimely. Id. 2. Right to Self-Representation

  A criminal defendant has a Sixth Amendment right to self-representation. See Faretta v. California, 422 U.S. 806, 832 (1975). But defendant's decision to represent himself and waive the right to counsel must be unequivocal, knowing and intelligent, timely, and not for purposes of securing delay. See id at 835; United States v. Arlt, 41 F.3d 516, 519 (9th Cir 1994); Adams v. Carroll, 875 F.2d 1441, 1444 & n3 (9th Cir 1989). Defendant also must be competent to waive counsel. See Godinez v. Moran, 509 U.S. 389, 396 (1993).

  The right to self-representation exists despite the fact that, in most cases, a defendant would be better served by counsel. See Faretta, 422 US at 834. While a trial judge may doubt the quality of representation that a defendant may provide for himself, the defendant must be allowed to exercise his right to self-representation so long as he knowingly and intelligently waives his right to counsel and is able and willing to abide by rules of procedure and courtroom protocol. See McKaskle v. Wiggins, 465 U.S. 168, 173 (1984). A trial court considering a defendant's decision to represent himself "is to look not to the quality of his representation, but rather to the quality of his decision." Bribiesca v. Galaza, 215 F.3d 1015, 1020 (9th Cir 2000). "At its heart, the rule expounded by the Supreme Court in Faretta is a rule protecting individual autonomy." Id.

  3. Timeliness and Delay

  The Ninth Circuit has established a bright-line rule for the timeliness of Faretta requests; a request is timely if made before the jury is impaneled, unless it is shown to be a tactic to secure delay. See Moore v. Calderon, 108 F.3d 261, 264 (9th Cir 1997). Because this is a rule of federal constitutional law, it may be the basis for habeas relief under 28 U.S.C. § 2254(d): the Faretta language describing Faretta's request to represent himself as having been made "weeks before trial," 422 US at 835, is part of the holding of the Court, see Moore, 108 F.3d at 265, and thus is "clearly established Federal law, as determined by the Supreme Court of the United States," for purposes of obtaining relief under 28 U.S.C. § 2254(d), id.*fn1

  A request to represent oneself "need not be granted if it is intended merely as a tactic for delay." United States v. Flewitt, 874 F.2d 669, 674 (9th Cir 1989). A court may consider (1) the effect of any resulting delay on the proceedings, and (2) events preceding the motion, to determine whether they were consistent with a good faith assertion of the Faretta right and whether the defendant could reasonably be expected to have made the motion at an earlier time. Avila v. Roe, 298 F.3d 750, 753-54 (9th Cir 2002) (remanding for evidentiary hearing, where district court failed to consider first factor and failed to give any weight to state appellate court's findings regarding second factor); see also United States v. George, 56 F.3d 1078, 1084 (9th Cir 1995) (defendant's pretrial conduct, including two escapes, motions for continuance and untimeliness ample basis for determining that motion to proceed pro se was made for purposes of delay).

  4. Analysis

  Petitioner argues that there is a substantial difference between how federal and state courts define "timely" with respect to Faretta requests and suggests that the more flexible federal standard should be used. Under California law, a defendant has a right to self-representation if he makes "an unequivocal assertion of that right within a reasonable time prior to the commencement of trial." People v. Windham, 9 Cal.3d 121, 128 (1977). The Ninth Circuit, on the other hand, considers a motion to proceed pro se timely if made before the jury is impaneled, unless it is shown to be a tactic to secure delay. Moore, 108 F.3d at 264; Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir 1982); Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir 1982).

  Ultimately, the debate over which standard applies may be of little importance in the instant case because both standards are similar in one respect: they both permit the court to deny a defendant's request to proceed pro se if it appears that it was made for purposes of delay. As the California Supreme Court noted in People v. Burton, "[t]he federal rule, though it calls motions timely until the jury is impaneled, may in practice differ little from our own rule." 48 Cal.3d 843, 854 (1989). This is because even if a defendant makes a Faretta motion before the jury is impaneled, "it is within the court's discretion to deny . . . if the court finds the motion is made for the purpose of delay." Id (quoting Fritz, 682 F.2d at 784).

  Here, the California Court of Appeal denied petitioner's Faretta claim on the ground that the trial court properly denied his request to proceed pro se because it was untimely and appeared to be for purposes of delay. The court found unpersuasive petitioner's argument that the federal standard (ie, Faretta motions are deemed timely if made before jury impanelment) should be used because the California Supreme Court rejected the exact same argument in Burton. The Burton court held that under either standard it is within the court's discretion to deny a Faretta motion made before the jury is impaneled if the court finds the motion is made for the purpose of delay. People v. Feliciano, slip op at 10-11.

  The California Court of Appeal also found that petitioner's request appeared to be designed to delay the trial. Id at 9. The court properly examined both factors set forth by the Ninth Circuit in Avila in making this determination. First, the court found that petitioner's request to delay the trial would negatively effect the proceedings. The court noted that the request came at a very late stage in the proceedings, since the trial was scheduled to begin upon the conclusion of the in limine motions, which were heard on the day of petitioner's motion. Id at 11. The prosecution had 24 potential witnesses ready to take the stand Id. Furthermore, petitioner had had eight months to move to represent himself, but he waited to make his Faretta motion until the trial date when all the parties were ready to proceed, and his previous motion for a continuance to retain private counsel had been denied. Id.

  Second, the court examined the events preceding the motion, and determined that they were inconsistent with a good faith assertion of the Faretta right and that petitioner could reasonably have been expected to have made the motion earlier. Petitioner never complained about his representation, even after counsel for the defense stated that he would continue to represent petitioner should petitioner's attempt to secure private counsel be denied. Id. In addition, petitioner's request, immediately prior to his Faretta motion, to retain private counsel demonstrated a proclivity to substitute counsel. Id at 9. Petitioner failed to present the trial court with sufficiently compelling circumstances in support of his late request to represent himself. Id. In finding that petitioner's request to represent himself was an attempt to delay the trial, the California Court of Appeal agreed with the People, that "[d]efendant's proffered excuse for his dilatoriniess, namely, that it was only the night before his request he `realize[d]' his family might have had sufficient funds to hire private counsel, is unpersuasive in light of his eight months of inaction." Id.

  Petitioner is not entitled to federal habeas relief on his Faretta claim because the California Court of Appeal's rejection of the claim was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court precedent or an unreasonable determination of the facts. 28 U.S.C. § 2254(d). The California Court of Appeal reasonably concluded that petitioner's Faretta motion was untimely and an effort to delay the trial. The court's conclusion is based on factual determinations entitled to a presumption of correctness that petitioner does not rebut, and, in any event, cannot be said to be an objectively unreasonable application of the Supreme Court's requirement that such motions be timely and not for delay purposes. See 28 U.S.C. § 2254(e)(1).


  For the foregoing reasons, the petition for a writ of habeas corpus is DENIED.

  The clerk shall enter judgment in favor of respondent and close the file.


  () Jury Verdict. This action came before the Court for a trial by jury. The issues have been tried and the jury has rendered its verdict.

  (X) Decision by Court. This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.

  IT IS SO ORDERED AND ADJUDGED that judgment is entered in favor of respondent and against petitioner.

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