The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
AMENDED FINDINGS AND RECOMMENDATIONS
Ipse dixit-- literally translated, "he himself said it;" used in English to describe an assertion to be accepted without proof simply because it was stated.
The mere affixing of a constitutional claim label to a factual situation involving the application of state law does not create a federal claim. The factual situation at bar involves, simply put, the initial, conditional appointment of counsel under state law, and the subsequent final appointment of another counsel when it appeared that conditional counsel would not be able to adjust his schedule within the time parameters to set the trial date deemed reasonable by the trial court. Despite the sincere, vigorous ipse dixit of petitioner's counsel that a constitutional label should stick, either involving the Sixth Amendment, the Fourteenth Amendment, or both, the situation here cannot be fit within a constitutional claim, and only involves state law. After vacating the initial Findings and Recommendations, hearing the parties further, and after revisiting the opinion of the California Court of Appeal, the undersigned concludes that the appellate court correctly viewed this situation as raising only a question of state law, and not one of constitutional magnitude. As such, the propriety of the state law ruling is not cognizable in federal habeas corpus.
In the alternative, assuming that the described situation involves the claim of an alleged violation of a constitutional right, petitioner has failed to show that he is entitled to relief.
Petitioner, a state prisoner proceeding with appointed counsel, has filed this application pursuant to 28 U.S.C. § 2254. Petitioner was sentenced, in 2000, to a term of fifty years to life to be served consecutively to a sentence of ten years, having been convicted, in 1999, on count 1, murder in the first degree, and count 3, assault with a firearm and personal use of a firearm and great bodily injury allegations found true. Memorandum of Points and Authorities in Support of Petition (hereafter, Petition), p. 11,*fn1 citing CT 283, RT 377-78; Answer, p. 7, citing CT 164-66, 171-72, RT 373. Petitioner proceeds on one ground: "the trial court violated his right to counsel and due process when it denied counsel's request to schedule the trial one year from the date of the crime, and instead removed the entire public defender's office from the case and replaced it with a 'conflicts panel' attorney." Petition, p. 2.*fn2
The procedural history of this case indicates a confusion of issues, or more correctly, a confusion as to what aspect of the Sixth Amendment (right to counsel) or the Fourteenth Amendment (right to due process) might apply to this case. In arguing that the Sixth and Fourteenth Amendments were violated, petitioner has alternatively stated that:
(1) he was denied due process when counsel's requested trial date was refused thereby requiring another counsel to be appointed, i.e., DPD Clinkenbeard could not "continue" to represent petitioner; the error was to be judged by the Chapman harmless error standard. Appellant's Opening Brief (AOB) at 36
(2) "By its action the court effectively prevented appellant from being represented by the attorney of his choice, violating appellant's Sixth Amendment right to counsel..." AOB at 37 (emphasis added); but see "Appellant acknowledges that a defendant is not entitled to representation by any particular public defender." AOB at 40
(3) "whether appellant's 'Sixth Amendment right to counsel outweighs any statutory rights asserted by' the prosecution..." Appellant's Reply Brief at 3
(4) "Importantly, a defendant who establishes that his right to counsel of choice was violated need not demonstrate prejudice...." "And while trial courts have 'wide latitude in balancing the right to counsel of choice [against scheduling concerns]' and retain the discretion to 'make scheduling [decisions] that effectively exclude a defendant's first choice of counsel...that discretion is not unlimited and must yield, in certain circumstances, to defendant's Sixth Amendment right." Amended Memorandum of Points and Authorities in Support of Petition at 17 (emphasis added).
(5) "[Petitioner]... does not claim that he has a right to counsel 'of choice,' nor does he contend that the state trial court 'failed to exercise its discretion in appointing him the counsel of his choice.'" Traverse at 6 (continuing on to say that the "removal" of Clinkenbeard was "arbitrary.") (Seemingly a due process issue, if a federal claim at all)
Assuming without analysis that petitioner had set forth a federal claim, the undersigned initially described the issue: "The essence of petitioner's claim is that he was denied his Sixth or Fourteenth Amendment rights by the trial judge by an arbitrary insistence on expeditiousness in the face of a justifiable request for delay...." Findings and Recommendations, vacated, at 22. The undersigned did not parse out what aspect of the Sixth Amendment might be at issue.
On objections, petitioner's heading on the merits mirrored the issue set forth by the undersigned above, Objections at 21, but then petitioner repeated his off- and-on argument that the Sixth Amendment issue was "counsel of choice." "Importantly, a defendant who establishes that his right to counsel of choice was violated need not demonstrate prejudice...." Id Respondent believed that petitioner was raising a new or abandoned issue. The undersigned vacated his Findings and Recommendations to obtain clarification of what the issue might be. After hearing, and especially after further post-hearing reflection, the undersigned finally finds the issues as follows:
1. What is the standard of review when a state court has determined that no federal issue exists, and rules solely on the basis of state law;
2. Does the final ruling of the state appellate court involve only an issue of state law not cognizable in federal habeas corpus;
3. In the alternative, assuming the correct assertion of a constitutional claim, what is the nature of that constitutional claim, and whether AEDPA deference would apply to this alternative claim.
Petitioner states that on January 26, 1999, a complaint was filed charging petitioner with the murder of Catherine Owens and the attempted murder of Duane Cummins on January 20,*fn3 1999, further alleging that petitioner had personally discharged a firearm in committing the crimes. Petition, p. 3, citing CT 12-13. Petitioner was arraigned on January 26, 1999, and the public defender's office appointed to represent him. Id., citing CT 1. Thereafter, on or about February 1, 1999, Deputy Public Defender Tommy Clinkenbeard was "assigned" to represent petitioner. Id., citing CT 19. Mr. Clinkenbeard represented petitioner at the preliminary hearing on May 21, 1999. Id., CT 21, 91-92.
At this point, the unpublished state court opinion accurately sets forth the background of petitioner's claim:*fn4
On May 21, 1999, at the conclusion of the preliminary hearing, the court inquired whether defendant requested counsel. He did and indicated he was indigent. The following discourse ensued: "THE COURT: The public defender is appointed to represent Mr. Jones. "MR. CLINKENBEARD: Accept the appointment and waive any further reading that Mr. Jones-"THE COURT: Do you waive any further arraignment on the Information? "MR. CLINKENBEARD: Yes, we do.
"THE COURT: Does Mr. Jones desire to plead not guilty and to deny the special allegations? "MR. CLINKENBEARD: Yes, we do. "THE COURT: Do you plead not guilty to each of the crimes charged against you, Mr. Jones? "DEFENDANT: Yes, sir. "THE COURT: And do you deny the two special allegations? "DEFENDANT: Yes, sir. "THE COURT: Pleas of not guilty are entered, and denials with the special allegations are entered. "The 55th day will be July 15th. I would like to set the case on or before July 15th. What date do you request, Mr. Clinkenbeard? "MR. CLINKENBEARD: Judge, I spoke with the D.A. about this; I'm not going to be able to set a trial date in this case until sometime next spring. I am booked for the rest of this year with mostly co-D homicide trials. I am going to ask for a trial date sometime in March or April-- "THE COURT: You know what you should do then: I really think we ought to put a matter over for a couple of days, and I really think that, especially in this case, you ought to comply with Section 1050 and file a written declaration. Doesn't matter if there's a stipulation; it's mandatory. You ought to take a look at Section 987. 5 of the Penal Code. "MR. FRAWLEY: Your Honor, I'm not stipulating to anything. I do wish the trial to be set within a reasonable amount of time, and I think March of next year is unreasonable and that we ought to investigate the possibility that another lawyer should be assigned to this case. "THE COURT: I think that you ought to take a look at Section 1050 and Section 987[.]05. You ought to sign a declaration and let a judge make a decision based on a proper declaration. *3 "MR. CLINKENBEARD: Okay."
The matter was continued until May 25, 1999. At the hearing on May 25, 1999, an amended information was filed adding the special circumstance which alleged that defendant murdered Owens during an attempted robbery. Also on May 25, 1999, Clinkenbeard filed a declaration stating that investigation was not complete and that he had conflicts in his trial schedule which precluded his ability to proceed to trial within the statutory time period. He asked for a trial date in the "spring of 2000." In pertinent part, Clinkenbeard stated: "This case was assigned to me on or about February 1, 1999. Two other homicides were assigned to me within a month of this case. I was in a two month trial when these cases were assigned. I have a two defendant homicide starting in June. I have a three defendant homicide starting in August. I have another homicide set in November. Also, this week, I'll be setting a trial date on a four defendant homicide case that is already one year old." The matter was continued to June 8, 1999. Arraignment on the amended information and further proceedings on the declaration concerning a trial date were deferred until then.
On June 7, 1999, Clinkenbeard filed a motion to dismiss the special circumstance allegation, added by the amended information, on the grounds of insufficient cause and lack of jurisdiction by the superior court. On June 8, 1999, the trial court chose to hear argument on the motion to dismiss prior to deciding the counsel and trial date issues, and continued the matter to June 18, 1999.
On June 10, 1999, the prosecutor filed a brief asserting the prosecution's right to a speedy trial. He relied upon section 987.05, which allows the appointment of counsel who represents that he or she is ready to proceed with trial in a reasonable time. The prosecutor argued that the court had discretion to remove counsel who cannot try the case at the scheduled trial date, and asserted that a fall 1999 trial date provided ample time for preparation counsel. He noted Cummins's availability was a concern due to his homelessness and addiction to narcotics. The prosecutor also filed an opposition to the motion to dismiss the special circumstance allegation.
At the June 18, 1999, hearing, the court denied Clinkenbeard's motion to dismiss the special circumstance allegation. Clinkenbeard claimed he had no idea the appointment issue would be litigated on that date and obtained a continuance until June 25, 1999.
On June 23, 1999, Clinkenbeard filed a response to the prosecution's assertion of speedy trial rights and other arguments, claiming a number of points. The case was not straightforward and simple but rather complex because the prosecutor was proceeding on a felony murder theory, a different theory than advanced at the preliminary hearing. A trial date one year from the date of defendant's arrest was the custom and practice in the county for the type of case. The prosecutor acted in bad faith based on the added special circumstance and on discussions prior to the preliminary hearing. The defendant's right to counsel outweighed any state right to a speedy trial and that counsel's removal without substantial justification would violate defendant's right to counsel. The prosecutor selectively cited section 987.05 but failed to show the defense requested trial date "in February or March" was unreasonable or disruptive. The public defender also claimed the prosecutor's concerns about Cummins's availability were illegitimate, that the court should refuse to follow Williams v. Superior Court (1996) 46 Cal.App.4th 320, 53 Cal.Rptr.2d 832, that section 987.05 was inapplicable because counsel had made no guarantee that he would be ready to proceed, and that section 987.05 is unconstitutional because it denied equal protection.
*4 At the hearing on June 25, 1999, Clinkenbeard added that it was the desire of defendant and his family that Clinkenbeard remain on the case. Clinkenbeard asserted that the prosecution had to show misconduct on Clinkenbeard's part to remove him as counsel. The prosecutor replied that Clinkenbeard's appointment was contingent upon a showing that he would be ready to proceed at a trial date set. The prosecutor represented that his office could try the case in two weeks, "It is that simple." Clinkenbeard disputed that the magistrate set the matter for evaluation under section 987.05.
At an in camera hearing the same day, Clinkenbeard informed the court of his planned investigation and theories including: his plan to have the victim's blood retested; his plan to consult with a drug expert concerning the victim's blood alcohol content, as well as his client's; his plan to consult with an "interrogation" expert to review defendant's statement to determine whether it was voluntary; his plan to consult with a ballistics expert to examine the gun and random pattern of gunfire; his plan to consult with a crime scene expert to assist in demonstrating that defendant had no intent to commit a robbery; his plan to consult with a blood splatter expert to refute intent and support a self-defense theory; his plan to research a Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694] issue as well as the lack of fingerprints on the gun; his plan to obtain a booking photograph of defendant and better quality autopsy photographs; his plan to reinterview witnesses who were with defendant the night of the shootings and who gave inconsistent statements concerning defendant's whereabouts; his plan to locate a third party, related to defendant or his girlfriend, and a person known to Cummins who allegedly admitted to the shootings; and his plan to reinterview Cummins who did not seem to be straightforward about his or Owens's condition the night of the shootings or the identity of the shooter.
After argument, the court said that Clinkenbeard's appointment as counsel for defendant was dependant [sic] upon his availability for trial. He concluded that Clinkenbeard had not shown he was available within a reasonable period of time, within the meaning of section 987.05, due to his trial schedule which included a current trial at the time of assignment to this case, a two-defendant trial in June, a three-defendant trial in August, a trial in November and a four-defendant trial to be scheduled which was over a year old. The court stated its opinion that the nature of the case was not complex despite counsel's claim he was surprised by the felony-murder theory. The court also noted the prosecution's speedy trial rights and concerns about its key witness's availability. Based on Clinkenbeard's representation that no one else in the public defender's office was available to take the case, the office was relieved and a panel attorney was appointed. Subsequently, trial was scheduled for October 12, 1999, but eventually the case was tried in November 1999.
People v. Jones, 2002 WL 399478 *2-*4 (Cal. App. 3rd Dist. 2002).
A. The Standard of Review for Determining Whether A Federal Claim Has Been Stated
All parties agree that with the denial of petition for review by the California Supreme Court, the decision of the California Court of Appeal was the final decision by the state courts. See Cal. Rules of Court 8.366(b)(1); the denial of review by the state supreme court was not a decision on the merits. Williams v. Cavazos, __F.3d__, 2011 WL 1945744 (9th Cir. 2011). It is the Court ...