The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION AND ORDER DENYING PETITIONER'S MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE PURSUANT TO 28 U.S.C. § 2255 (Doc.) 85 AND DIRECTING CLERK OF COURT TO ENTER JUDGMENT FOR RESPONDENT
On May 5, 2005, Petitioner William D. Powell, proceeding in pro per, filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255.
Petitioner was charged with possession of a firearm in a federal facility, a Class A misdemeanor, in violation of 18 U.S.C. § 930(a). Petitioner consented to proceed before the United States Magistrate Judge. (Doc. 4). Petitioner pleaded guilty pursuant to a written Plea Agreement. (Docs. 24 & 26). Petitioner was sentenced on September 17, 2003, to a $300 fine and a one-year term of supervised release. (Doc. 30).
Petitioner did not appeal his conviction or sentence.
On June 14, 2004, a Petition for Warrant or Summons for Offender Under Supervision was filed. (Doc. 32). Petitioner was arrested and ordered detained. (Doc. 36). Petitioner was represented by Federal Defender Mark Lizarraga. A Superseding Petition for Warrant or Summons for Offender Under Supervision was filed on October 6, 2004, alleging three violations of the terms of supervised release. (Doc. 39). On October 8, 2004, Petitioner admitted Charge 2 of the Superseding Petition, with the proviso that Charges 1 and 3 would be dismissed at the time of sentencing. (Doc. 40). Petitioner filed a Sentencing Memorandum on December 1, 2004. (Doc. 68). After a sentencing hearing on December 1, 2004 before Magistrate Judge Snyder, Petitioner was sentenced to 9 months in custody and a 12-month term of supervised release. (Docs. 69-70). On December 7, 2004, Petitioner filed an appeal to the District Court of his sentence based on a violation of Rule 43, Federal Rules of Criminal Procedure during the December 1, 2004 hearing. (Docs. 71 & 77).
During the briefing of the appeal, Petitioner, acting in pro per, filed his Section 2255 motion.
Petitioner's appeal was granted; his sentence was vacated and the matter remanded to a randomly assigned Magistrate Judge other than Magistrate Judge Snyder for resentencing. (Docs. 87 & 96).
On February 1, 2006, Petitioner, then represented by Federal Defender Melody Walcott,*fn1 was sentenced by Magistrate Judge Beck for the admitted supervised release violation to 9 months in custody with 9 months credit for time served and no term of supervised release. (Docs. 107 & 111). On February 13, 2006, Petitioner filed a Notice of Appeal from the Judgment for Revocation of Probation. (Doc. 110).*fn2
Petitioner's Section 2255 motion asserts that he was denied his right of self-representation, contending that "on Dec. 1, 2004, the Judge informed me I could not represent myself."
Because Petitioner's Section 2255 motion was filed during the pendency of his appeal to the District Court, the motion is premature. See Feldman v. Henman, 815 F.2d 1318, 1320 (9th Cir.1987). Nonetheless, Petitioner's claims are without merit. The transcript of the sentencing proceedings before Magistrate Judge Snyder on December 1, 2004 (Doc. 98), reveals no request by Petitioner to represent himself. A defendant has a constitutional right to represent himself in a criminal trial. Faretta v. California, 422 U.S. 806 (1975). However, because a defendant who wishes to represent himself gives up many benefits associated with the right to counsel, the decision to represent himself must be knowing, intelligent and voluntary. In addition, the request for self-representation must be unequivocal. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). The only statement by Petitioner at the December 1, 2004 hearing that might conceivably relate to self-representation is the following:
THE DEFENDANT: No, what I'm talking about her [Lisa Garofalo] statement from here is a charade.
THE COURT: Well, let's find out. Let's find out. Mr. Lizarraga has strongly represented your interests in chambers. He's very - he agrees with you, and he's very upset with all of this, so you have excellent representation regarding that, and he's your mouthpiece.
THE DEFENDANT: I beg to differ there, but --
THE COURT: Well, I've had a lot of experience with lawyers over the years, and every case is different, and I understand, Mr. Powell, everybody knows, and Mr. Horner assures me, and everybody assures me that you are an extremely bright man, very bright. Brighter than most, and I don't take exception with that, or disagree with it. I think that ...