FINDINGS AND RECOMMENDATIONS
Petitioner is a state prison inmate proceeding pro se with a petition for a writ of habeas corpus under 28 U.S.C. § 2254, alleging that the trial court improperly denied four of his ten motions for the appointment of new counsel and two motions for self-representation.
In exchange for the prosecutor's agreement to dismiss certain enhancements and an agreement that the United States Attorney would not pursue certain charges, petitioner agreed to submit the issue of his guilt to the state trial court, to be determined on the tapes and transcripts of law enforcement interviews with the victims and on petitioner's testimony and other defense evidence. The court found petitioner guilty of six counts of lewd and lascivious acts with children under the age of fourteen, one count of indecent exposure and a misdemeanor charge of possession of child pornography, and sentenced him to a total term of sixteen years.
While the state criminal proceedings were pending, petitioner filed the instant action, which petitioner labeled a petition for a writ of habeas corpus under 28 U.S.C. § 2241, but was in fact an amalgam of some claims appropriately brought in a civil rights action, some claims that could only be raised in a § 2254 petition after trial, and a challenge to the alleged denial of a speedy trial, the latter the only ground properly raised in a pretrial habeas petition. See Pet. (Docket No. 1). Petitioner also asked for a stay of his state criminal proceedings. Id.; see also Request for Stay (Docket No. 6). State trial counsel's refusal to seek a stay in Superior Court because of the pendency of this action became one of the bases for petitioner's many motions for the appointment of new counsel, as discussed in further detail below.
The original petition was dismissed, but petitioner was given leave to file an amended petition. During this time, petitioner had been convicted and sentenced to state prison. He nevertheless prepared an amended petition, which this court recommended be dismissed because of the pendency of petitioner's state appeal. See Findings and Recommendations (F&Rs) (Docket No. 15). This recommendation was vacated after petitioner filed objections, alleging that the direct appeal process in the state court had concluded; this court then directed the warden to respond to the petition. See Order Vacating F&Rs (Docket No. 22).
Respondent filed a motion to dismiss, asserting that the amended petition contained both exhausted and unexhausted claims. This court recommended that the motion be granted and that petitioner be ordered to file a petition containing only exhausted claims, a recommendation adopted by the district court. See Findings and Recommendations and Order (Docket Nos. 31 & 32).
The second amended petition was filed on September 12, 2008. See Second Am. Pet. (Docket No. 33). It alleges that the court erred in denying petitioner's four motions to replace Attorney Ruffcorn with new appointed counsel and his two motions to represent himself. As the state Court of Appeal recognized, the facts of the offenses are not relevant to the issues raised in this petition.
II. Standards Under The AEDPA
An application for a writ of habeas corpus by a person in custody under a
judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Also, federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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) (referenced herein in as "§ 2254(d)" or "AEDPA").*fn1 It is the habeas petitioner's burden to show he is not precluded from obtaining relief by § 2254(d). See Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) are different. As the Supreme Court has explained:
A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams [v. Taylor, 529 U.S. 362 (2000)] that an unreasonable application is different from an incorrect one.
Bell v. Cone, 535 U.S. 685, 694 (2002). A state court does not apply a rule different from the law set forth in Supreme Court cases, or unreasonably apply such law, if the state court simply fails to cite or fails to indicate an awareness of federal law. Early v. Packer, 537 U.S. 3, 8 (2002).
The court will look to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919 (2003). Where the state court fails to give any reasoning whatsoever in support of the denial of a claim arising under Constitutional or federal law, the Ninth Circuit has held that this court must perform an independent review of the record to ascertain whether the state court decision was objectively unreasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). In other words, the court assumes the state court applied the correct law, and analyzes whether the decision of the state court was based on an objectively unreasonable application of that law.
"Clearly established" federal law is that determined by the Supreme Court. Arredondo v. Ortiz, 365 F.3d 778, 782-83 (9th Cir. 2004). At the same time, it is appropriate to look to lower federal court decisions as persuasive authority in determining what law has been "clearly established" and the reasonableness of a particular application of that law. Duhaime v. Ducharme, 200 F.3d 597, 598 (9th Cir. 1999); Clark v. Murphy, 331 F.3d 1062 (9th Cir. 2003), overruled on other grounds, Lockyer v. Andrade, 538 U.S. 63 (2003); cf. Arredondo, 365 F.3d at 782-83 (noting that reliance on Ninth Circuit or other authority outside bounds of Supreme Court precedent is misplaced).
III. Motions To Replace Appointed Counsel
Over the course of the criminal proceedings against him, petitioner made ten motions for the appointment of new counsel under the authority of People v. Marsden, 2 Cal.3d 118 (1970). Three motions were granted: those heard on July 29, 2003, August 5, 2004 and December 3, 2004. CT 106, 328, 363. Three others not at issue here were denied: October 2, 2003, June 10, 2004, and November 16, 2004. CT 111, 322, 361. On appeal and in these proceedings, petitioner alleges that the trial court's refusal to grant his four motions to remove Attorney Ruffcorn deprived him of the effective assistance of counsel.
The Shasta County Public Defender's Office, and specifically, attorney Max
Ruffcorn was appointed to represent petitioner on December 8, 2004. CT 365. On January 31, 2005, the parties appeared for a settlement conference. CT 432. According to Ruffcorn, petitioner rejected an offer that contemplated an eight year sentence along with the dismissal of the pending federal charges. RT 259. Petitioner also rejected a "slow plea," which would have preserved what counsel believed was an advantageous plea bargain. RT 263. Counsel observed:
Mr. Stein today asked me to consider invoking Penal Code Section 1368 in terms of his mental competence. And I read the code again this afternoon in that regard and it would require me to announce to the court that I believed and had a doubt about his competence. . . .
I informed Mr. Stein that . . . I don't believe that he's incompetent. For the same reasons he's rejected the offer in terms of being the truth teller, I'm not -- I'm not interested in fibbing to this court.
RT 262. According to counsel, petitioner "directed me to file writs," but counsel declined to do so. RT 263.
On February 8, 2005, petitioner did enter a no-contest plea to the charges.
CT 489-511. One of the conditions of the plea was that the "appeal rights [would be] reserved regarding speedy trial and other constitutional rights." CT 489. The court allowed petitioner to withdraw the plea when the parties realized the plea would foreclose any appeal of the speedy trial and other constitutional issues. CT 547.
The case finally went to a court trial, submitted in part on the tapes and transcripts of interviews with the victims and other documentary evidence from the prosecution and in other part on the live testimony of defense witnesses and petitioner himself. Petitioner gave up his right to a jury trial and to have the victims testify in exchange for a sixteen year maximum sentence. CT 815-818. This disposition was engineered by Ruffcorn, whose actions petitioner repeatedly challenged in the four Marsden motions at issue here.
B. Hearing Of February 4, 2005
On February 4, 2005, petitioner asked for the appointment of new counsel.
RT 276. With the courtroom cleared, the judge asked petitioner to explain the basis for his request. RT 278.
Petitioner contended that counsel had "recommended most strongly that I accept the plea bargain deals without considering all the ramifications of and alternatives to this action." RT 279. He argued that Ruffcorn failed to consider the implications of the Ninth Circuit case, McNeely v. Blanas, 336 F.3d 822 (9th Cir. 2003),*fn2 and the possibility of pursuing a pretrial federal habeas petition under 28 U.S.C. § 2241. RT 279. He suggested that Ruffcorn did not visit him at the jail but rather only in the holding cell before court. Id. He also alleged that counsel had lied to him about complying with discovery obligations. RT 280.
Most of petitioner's ire was saved for Ruffcorn's revelation in open court that petitioner mentioned an evaluation of his competence to stand trial -- a 1368 proceeding. Petitioner explained that one of his former lawyers and a judge who had heard proceedings in the case wondered whether he was competent and that he was suffering from "stress related self-doubt." RT 280. He was "amazed when Mr. Ruffcorn took my words out of context and blurted them out in open court." Id. He characterized this as "immoral" and "in contravention of an attorney's very course of existence, which is the defense of his client." Id. Because of this betrayal of confidence, he no longer trusted Ruffcorn, nor could he do so in the future. RT 281.
Ruffcorn explained that petitioner's rejection of the eight-year offer was, in essence, "betting his life," because it was "too risky" with the lengthy sentence petitioner faced if found guilty. RT 284, 285. Accordingly, his "advice has been strong to resolve this case."
RT 285. He also noted that he had visited petitioner seven times in the jail, as shown by the jail's records. RT 286, 288.*fn3
The judge rejected petitioner's dissatisfaction with Ruffcorn's failure to file a federal habeas petition because "the time is not ripe yet to file a federal habeas." RT 288. He also recognized that Ruffcorn had "got up to speed quickly" and filed "two sizable motions quickly." Id. The court advised petitioner that counsel had a duty to convey any plea offer and particularly this one, which was a "marvelous offer." RT 289. Ultimately the court found that the motion was "one more example of his desire not to go to trial. And that's simply what I view this Marsden motion here today as is I don't want to go to trial. I'm going to try to get rid of this lawyer." RT 288.
C. Hearing of February 8, 2005
Petitioner renewed his motion in front of a different judge, beginning with his declaration that "I do not trust this attorney" because he "has violated confidentiality." RT 295. He told the judge he had not understood what a 1368 hearing was, but was feeling "self-doubt" and so mentioned it to Ruffcorn. Then Ruffcorn "took my words out of ...