FINDINGS AND RECOMMENDATIONS
Willie Ray Jones, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Jones stands convicted of offenses in the San Joaquin County Superior Court, case number SF087963A, for which he is currently serving an indeterminate sentence of 25 years to life.
While the procedural history of this case is lengthy and complicated, the facts of Jones's offenses are not. Evidence at trial showed that he went to the home of his former girlfriend and, after restraining her when she attempted to flee, punched her in the face and knocked her to the ground unconscious. He fractured two bones in her face and lacerated her brow. The attack rendered the vision in her left eye permanently blurry.
On July 3, 2003, the District Attorney's Office of San Joaquin County filed an information charging Jones in count 1 with assault with force likely to cause great bodily injury in violation of section 245(a)(1) of the California Penal Code and in count 2 with battery inflicting serious bodily injury in violation of section 243(d). It was alleged as to both counts that he personally inflicted great bodily injury within the meaning of section 12022.7(e). It was further alleged for enhancement purposes that he had three prior serious felony convictions ("strikes") within the meaning of section 667(a); and that he had served six prior prison terms within the meaning of section 667.5(b).
Jones pleaded no contest to count 2 and admitted that he had personally inflicted great bodily injury and that he had suffered one prior conviction. He was sentenced to a prison term of 12 years. Jones successfully appealed the conviction to the California Court of Appeal, Third District on the ground that the plea was induced by misrepresentations that he would be able to seek appellate review of a number of his pre-plea motions that were denied. On April 29, 2005, the court of appeal reversed judgment and remanded the case to the trial court for the plea to be vacated if Jones so elected. See People v. Jones, No. C046119, 2005 WL 995566 (Cal. App. 3rd Dist. 2005). On July 20, 2005, on Jones's motion, the trial court vacated his plea.
Jones filed a motion for self-representation pursuant to Faretta v. California, 422 U.S. 806 (1975). The motion was granted by Judge James E. Hammerstone on August 29, 2005.
Jones subsequently moved to withdraw his pro per status. On January 10, 2006, the trial court granted his request and Deputy Public Defender John Lauper was appointed to represent him.
Jones then filed a motion to substitute counsel which was heard on January 30, 2006. Ruling was deferred to February 27, 2006, when Judge Terrence Van Oss denied the motion. Judge Van Oss also denied Jones's renewed motion for self-representation and accompanying motion to appoint advisory counsel, stating:
We have been through this over and over again here. [¶] As I indicated the last time Mr. Jones withdrew his request to represent himself, he wanted an attorney to represent him, I told him that would be the last time. And I mean it. We are not going to go through this again. We've been back and forth too many times. He now has an attorney. He indicated if he wanted another attorney we'd stick him with the attorney. (RT at 46-47.)
Jones filed another motion to substitute counsel which was denied on May 12, 2006. That same day, attorney Lauper declared a doubt regarding Jones's competence to stand trial under section 1368 of the California Penal Code. The trial court ordered the criminal proceedings suspended.
Medical personnel were appointed to examine Jones. On June 20, 2006, the trial court found Jones not competent to stand trial. On July 6, 2006, he was committed to the California Department of Mental Health at Napa State Hospital for a maximum term of three years. He received 579 days of credit. Jones consented to the administration of medication.
On December 7, 2006, the court ordered updated evaluation reports regarding Jones's competence and another doctor was appointed to evaluate him. On January 18, 2007, the court found him competent to stand trial and reinstated criminal proceedings. That same day, he filed a motion for self-representation; the motion was denied by Judge Van Oss on January 22, 2007. Trial was set for March 12, 2007.
On February 21, 2007, the matter came before the court on Jones's renewed motion for self-representation. This time, Judge Peter Saiers heard and granted the motion. Trial remained set for March 12, 2007 before Judge Van Oss.
On March 8, 2007, Jones filed a motion to disqualify Judge Van Oss. On March 12, 2007, the day trial was supposed to commence, court convened before Judge Richard Vlavianos. Trial was delayed since the motion to disqualify Judge Van Oss was still pending before another judge. The motion was not decided until April 23, 2007, which necessarily delayed the start of trial. The motion was denied.
On April 26, 2007, the matter came before the court again for trial setting. Jones did not respond to the court's repeated inquiries concerning his readiness for trial, instead attempting to raise other matters each time he was asked. (Reporter's Transcript ("RT") at 100-01.) Trial was set for May 1, 2007. Jones then moved for a continuance. In denying the continuance, Judge Van Oss noted that Jones had refused to waive time for purposes of the time limit set forth in section 1382(a)(2)(A) of the California Penal Code. Jones again moved for appointment of counsel or advisory counsel; those motions were also denied.
On May 1, 2007, a jury was empaneled to try the case. The same day, Jones declared he was incompetent to represent himself, but Judge Van Oss found him competent. Judge Van Oss further found that he was competent at the time of his 2003 preliminary hearing.
The guilt phase of the trial commenced. On May 9, 2007, the jury found him guilty of both counts and further found true the allegation of personal infliction of great bodily injury as to each count.
In a subsequent bench trial, the court found true two prior serious felony conviction allegations and struck the remaining enhancement allegations. The court denied a defense motion to strike the prior convictions and sentenced him to state prison for a total term of 25 years to live on count 1. A concurrent term of four years was imposed on the great bodily injury enhancement. Sentencing on count 2 was stayed in the interest of justice. Credit in the amount of 3,498 days was awarded.
Jones appealed to the California Court of Appeal, Third Appellate District. This time, the state appellate court affirmed his conviction and sentence in an unpublished decision. See People v. Jones, No. C056110, 2008 WL 3878347 (Cal. App. 3rd Dist. 2008). The California Supreme Court denied a petition for review. Jones filed multiple petitions for writ of habeas corpus in the California Supreme Court where relief was likewise denied. The parties agree that Jones has exhausted state court remedies to the extent the grounds presented in the federal petition present the same issues raised in state court.
The federal petition sets forth seventeen grounds for relief. Jones claims:
(A) He was denied his right to counsel when the trial court refused to reappoint counsel on April 26, 2007 (ground one);
(B) He was prevented from testifying in his own defense when the trial court did not allow a continuance for retrieval of "notes" on May 8, 2007 (ground two);
(C) His rights under the Confrontation Clause were violated when the trial court terminated his cross-examination of a witness Flockhart on May 3, 2007 (ground three);
(D) The trial court erroneously failed to instruct the jury that the prosecution must prove each element of the charges (ground four);
(E) The trial court erroneously granted his request for self-representation after he was found competent to stand trial (ground five);
(F) Defense attorney Lauper rendered ineffective assistance of counsel in connection with his right to a speedy trial (ground six);
(G) Another unnamed defense attorney rendered ineffective assistance in connection with his vacated guilty plea(ground seven);
(H) Judge Van Oss, the trial judge, was biased (grounds eight and nine);
(I) The trial court improperly relied on his previous robbery conviction in case A577403 to impose sentence under the "three strikes" law because was he was inadequately represented in that case (ground ten);
(J) Following trial, the court unconstitutionally imposed a longer sentence than was originally imposed pursuant to the vacated plea (ground eleven);
(K) Various constitutional infirmities occurred during the bench trial on his prior convictions (grounds twelve, thirteen, and fifteen);
(L) Appellate counsel rendered ineffective assistance (ground fourteen);
(M) The trial court erroneously refused to replace the defense investigator on January 10, 2006 (ground sixteen); and
(N) He was denied his Sixth Amendment right to a speedy trial (ground seventeen).
For the reasons that follow, these contentions are without merit and the petition should be denied.
IV. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under 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); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under the AEDPA, federal habeas corpus relief is also precluded 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); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).
This court looks to the last reasoned state court decision to determine 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. The state court's factual findings are presumed correct if not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 25 (2002).
A. Right to Counsel (ground one)
Jones claims he suffered a violation of his right to counsel when the trial court denied his request for reappointment of counsel on April 26, 2007.
A criminal defendant has a right under the Sixth Amendment to the assistance of counsel at all critical stages of the proceedings. Gideon v. Wainright, 372 U.S. 335, 344-45 (1963). In Faretta v. California, the United States Supreme Court held that a criminal defendant also has a right to knowingly and intelligently waive his Sixth Amendment right to counsel and choose self-representation, even though he may ultimately conduct his defense to his own detriment. Faretta v. California, 422 U.S. 806, 834-35 (1975). Ordinarily, a waiver of counsel can subsequently be withdrawn and the right to counsel may be reasserted. See United States v. Taylor, 933 F.2d 307, 311 (5th Cir. 1991) ("This court has long held that a defendant who waives the right to counsel is entitled to withdraw that waiver and reassert the right."); see also Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989) (rejecting "conception that the defendant's initial decision to exercise his Faretta right and represent himself at trial is a choice cast in stone").
Reassertion of the right to counsel following a Faretta motion is not unqualified, however, and Faretta recognized as much. See Faretta, 422 U.S. at 835 n.46; Menefeld, 881 F.2d at 700 ("[T]he right to counsel- once waived- is no longer absolute[.]"). In particular, the Sixth Amendment does not protect defendants who abuse it by obstructing judicial proceedings. See Faretta, 422 U.S. at 835 n.46 ("The right of self-representation is not a license to abuse the dignity of a courtroom."). A request to withdraw Faretta rights and resume with counsel can properly be denied where a necessary continuance would adversely affect the proceedings or where the delay is attributable to the defendant's conduct. See Taylor, 933 F.2d at 311 ("A trial court need not countenance abuse of the right to counsel or the right to waive it."); McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir. 1985), cert. denied 474 U.S. 852 (trial court must be wary of repeated changes of position on counsel or late requests to change counsel made to delay trial or impede the prompt and efficient administration of justice); United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986) ("When the defendant's [S]ixth [A]mendment right to counsel is implicated, [ ] a court must balance several factors to determine if the denial [of a continuance motion] was "fair and reasonable.").
Following remand of his case from the court of appeal, Jones made four motions for self-representation (8/24/05; 2/27/06; 1/18/07; 2/21/07), two of which were granted (8/29905; 2/21/07); four motions to withdraw his pro per status and to appoint counsel or to appoint advisory counsel (1/9/06; 1/10/06; 2/27/06; 4/26/07), one of which was granted (1/10/06); and two motions to substitute counsel (1/3/0/06; 5/12/06). Both the trial court and state appellate court reasonably found Jones's repeated motions to be calculated to delay and disrupt the trial. The trial court had ample reason to believe the obstructionist tactics would continue if Jones were permitted to change his mind once again and reassert his right to counsel. Likewise, the state appellate court reasonably made findings of fact that "nothing new or unforeseen had come to light since he had insisted on self-representation," and that "[t]rial was imminent and appointment of counsel, with the inevitable scheduling problems, would likely entail yet another substantial delay." People v. Jones, No. C056110, supra, at 3. Rejection of Jones's claim for these reasons was not contrary to, or an unreasonable application of clearly established Supreme Court precedent, nor based on an unreasonable determination of facts.
B. Right to Testify (ground two)
Jones next claims the trial court denied him his constitutional right to testify in his own defense. As support for this claim, Jones references the trial proceedings on May 8, 2007. On that morning, after presentation of the first defense witness, Jones had no other defense witnesses available to testify. The following exchange occurred:
THE COURT: Since you cannot give me the name of another witness to testify, we are going to send Mr. Stewart out to find Ms. Deed, if we can. And, if you want to testify, now is the time to do it.
And I will tell you, Mr. Jones, again, that even though you are your own lawyer, you have a 5th [A]mendment privilege not to testify if you don't want to. It is strictly up to you. [...] Do you wish to testify in this case, or do you not wish to testify in this case? (RT at 546-47.)
THE DEFENDANT: Do I wish to testify before we attempt to bring in Mrs. Deed, my last witness?
THE COURT: Yes. We are going to send Mr. Stewart out. We will give him another shot at her. And send him out to see if he can find her today.
THE DEFENDANT: Then I will testify according to. [sic] Let me hear about the witness, then I will make that decision based upon the witness. I still yet to see the, receive the testimony of Mrs. Deed.
THE COURT: If she were here, we would have her testify first. She ain't here. We are not going to waste the rest of this morning while we are looking for her. Frankly, it sounds like he won't be able to find her again. We will make every effort to locate her.
D.A. can't seem to find her anymore. We will send your investigator out to find her. And, Mr. [Prosecutor], you have given him all of the information you have about Ms. Deed.
[PROSECUTOR]: Yes, I have.
THE COURT: He is going to see if he can find her. If you had her on standby or you made arrangements with her, I would let you testify last. We don't have that luxury now. Now is the time, if you want to testify, now is the time to testify because we are going to bring the jury back in here in two minutes, and then we are going to hear the next witness. If the next witness is you, fine. We will hear you.
THE DEFENDANT: Well, Your Honor, I will ask the record show I am objecting to it.
THE COURT: The record preserves your objection (RT at 546-48.) Jones then made a motion for mistrial, which was denied. The court again asked Jones if he wanted to testify, and Jones responded "... I can't say until I talk to Mrs. Deed and find out what status with Mrs. Deed. [sic]" (RT at 550.) The court indicated it would not wait, and Jones stated, "I am not going to testify before I put on my defense." (RT at 550.) The court found that Jones refused to testify:
I will find a refusal to testify at this time, which is 10:30 in the morning. Now next step in this process is to see if you can find Mrs. Deed. I am telling you, Mr. Jones, once you tell me you will not be testifying, that is the end of it. We are not going to have the thing going back and forth. We are not going to come back later on and start over again. If you make the decision at this time, I want you to understand that is the end of it. I am not going back and forth.
(RT at 550.) The court instructed Jones to consider the decision during a 15 minute recess. Following the recess, Jones elected not to testify that day.
The witness was located and testified the next morning. Following Deed's testimony the court gave Jones another opportunity to testify. This time, he stated he would not testify without his "folder." (RT at 613-14.) Jones requested a ...