United States District Court, N.D. California
July 9, 2004.
DOMINIC FELICIANO, Petitioner,
ANTHONY LAMARQUE, Warden, Salinas Valley State Prison Respondent.
The opinion of the court was delivered by: VAUGHN WALKER, District Judge
ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS
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
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"
Petitioner's sole argument is that the trial court's denial of
his request for self-representation violated his constitutional
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
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
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
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
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
SO ORDERED. JUDGMENT IN A CIVIL CASE
() 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.