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Joe Earl Shepard v. F. X. Chavez

September 12, 2012

JOE EARL SHEPARD, PETITIONER,
v.
F. X. CHAVEZ, RESPONDENT.



ORDER

Petitioner is a state prisoner without counsel seeking an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties in this action have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a 2004 judgment of conviction entered against him in the Tehama County Superior Court on charges of committing a lewd and lascivious act upon a child under the age of 14 years and continuous sexual abuse of a minor. He seeks relief on the grounds that: (1) the trial court violated his federal constitutional rights by denying his motions for substitute counsel; (2) his trial and appellate counsel rendered ineffective assistance; and (3) his sentence is unconstitutional. Upon careful consideration of the record and the applicable law, petitioner's application for habeas corpus relief must be denied.

I. Procedural and Factual Background*fn1

A jury convicted defendant Joseph Earl Shepard of committing sexual offenses against V. and B., two girls under 14 years of age. On appeal, defendant argues the court abused its discretion by denying his motions to continue and to substitute retained counsel for his appointed counsel. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Facts Related to the Offenses Count I Count I arose from an incident that occurred on September 29, 2001, at the Red Bluff residence of defendant's mother-in-law, who shared her home with defendant and his wife. After an evening of bowling, defendant was left to baby-sit his son and daughter and the two daughters of his wife's friend, while his wife and her friend went out for drinks.

Defendant directed his children to put on their pajamas and go to bed. Defendant invited the younger of the other two girls, six-year-old V., to join him on the sofa, and sent her older sister to his bedroom. Defendant laid sideways on the sofa and positioned V. in front of him. As V. pretended to sleep, defendant put his hand underneath her shorts, "squeezed [her] bottom," and "humped" her by repeatedly moving his pelvis against her buttocks. Defendant stopped when V. pretended to wake up. Defendant permitted V. to join her sister in defendant's bedroom, where she began crying. V.'s 10-year-old sister corroborated V.'s account in part, testifying that V. did not go to sleep upon entering the bedroom, but stared out of the window and cried.

In defense of this charge, defense counsel was able to adduce evidence that V. may have waited up to 30 months before reporting the incident to her mother; V. continued to visit B. after the incident, even though defendant was present; and there were factual discrepancies between the accounts V. and her sister gave an investigating detective. In addition, defendant testified that he had sexual intercourse with V.'s mother on several occasions; V.'s mother and his then-wife had a "relationship," and frequently went drinking and dancing together.

Defendant was convicted of one count of committing a lewd and lascivious act upon a child under the age of 14 years. (Pen.Code, § 288, subd. (a).)*fn2 Count II Defendant also sexually molested B., a young girl who occasionally stayed at his mother-in-law's residence. B., who was nine years old at the time of trial, testified that defendant had sexual intercourse with her on multiple occasions when she was five, six, and seven years old. All but one of the sexual assaults followed the same pattern. With B. lying on her back in bed, defendant would lower her panties, pull his erect penis through the hole in his boxer underwear, insert it into her vagina, move up and down, and ejaculate. B. testified defendant's penis went about "halfway" into her vagina, to a depth of about two inches. Defendant told B.: "This is our little secret."

The one atypical incident occurred while defendant was giving B. a ride in his car, and B.'s brother was asleep in the backseat. Defendant pulled his erect penis from his pants, put B.'s hand on it, and made her stroke it.

Sandra Relyea, a pediatric physician assistant, examined B. in May 2003. Relyea testified that B.'s hymen was "nearly absent," a condition that was consistent with repeated internal vaginal trauma, as would occur as a result of multiple acts of sexual intercourse. Relyea noted that she observed no external vaginal injuries, but she did not deem this significant, since external vaginal injuries heal rapidly, the sexual assaults occurred long before the examination, and an adult penis could have penetrated

B.'s vagina without causing any exterior damage.

In defense of count II, defense counsel elicited testimony that B. was "not afraid" to return to the residence when defendant was present after the molestations commenced; defendant's mother-in-law noticed nothing unusual when she bathed B., and B. never complained to her; B. did not tell her mother about the molestations until her mother asked if defendant had "ever done anything bad"; B.'s mother questioned B. only after she was informed of the alleged molestation of V.; and defendant reported that B.'s mother had committed welfare fraud, which led to a misdemeanor conviction.

The jury convicted defendant of continuous sexual abuse of a minor. (§ 288.5.)*fn3

Resp.'s Lodg. Doc. 4 (hereinafter Opinion) at 1-4.*fn4

Before the California Court of Appeal issued its decision on petitioner's direct appeal, petitioner filed two collateral challenges to his judgment of conviction. Specifically, on June 6, 2006, petitioner, proceeding through counsel, filed a petition for writ of habeas corpus in the Tehama County Superior Court, claiming that his trial counsel rendered ineffective assistance in failing to call an expert witness (Dr. Kessler) at his trial and failing to investigate key defense witnesses. Resp.'s Lodg. Doc. 6. That petition was denied on October 23, 2006. Resp.'s Lodg. Doc. 7. In its order denying habeas relief, the Superior Court discussed petitioner's claims on the merits and indicated that petitioner had not met his burden of demonstrating ineffective assistance of counsel. Id. at 2. However, the court stated that because the matter was currently on appeal and the Superior Court was not in possession of the state court record, it would be "inappropriate" to issue a writ of habeas corpus at that time. Id. at 2.

On February 6, 2007, petitioner, still proceeding through counsel, filed a petition for writ of habeas corpus in the California Court of Appeal, raising the same claims of ineffective assistance of trial counsel that he raised in his habeas petition filed in the Superior Court.

Resp.'s Lodg. Doc. 8. On March 1, 2007, that petition was summarily denied. Resp.'s Lodg. Doc. 9.

On March 9, 2007, the California Court of Appeal denied petitioner's direct appeal and affirmed his judgment of conviction. Petitioner did not file a petition for review.

Petitioner subsequently filed two more collateral challenges to his conviction. On June 25, 2009, more than two years after his conviction was upheld by the California Court of Appeal, petitioner, now proceeding without counsel, filed a petition for writ of habeas corpus in the California Supreme Court. Resp.'s Lodg. Doc. 10. Therein, petitioner explained that his appellate counsel failed to file a petition for review in the California Supreme Court despite having promised to do so, and requested that the court reopen his appeal so that he could continue the appellate process. Id. On November 10, 2009, that petition was summarily denied. Resp.'s Lodg. Doc. 11. On April 1, 2010, petitioner, still proceeding without counsel, filed another petition for writ of habeas corpus in the California Supreme Court. Resp.'s Lodg. Doc. 12. Therein, he claimed that his trial and appellate counsel rendered ineffective assistance, that the trial court erred in denying his motions for substitute counsel, and that his sentence was illegal. Id. The Supreme Court denied that petition by order dated October 27, 2010, citing In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750 (1993). Resp.'s Lodg. Doc. 13.

II. Analysis

A. Standards for a Writ of Habeas Corpus

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). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010)).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn5

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, 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." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn6

B. Petitioner's Claims

Petitioner has raised eight separate claims for habeas corpus relief in the petition before the court. Respondent argues that all of petitioner's claims are barred from federal review by the doctrine of procedural default. The court will address petitioner's claims and respondent's argument regarding procedural default below.

1. Procedural Default

Petitioner raised the claims that are designated in the instant petition as claims two and three in his petitions for a writ of habeas corpus filed in the Tehama County Superior Court and the California Court of Appeal in 2007, and he raised them again in his second petition for a writ of habeas corpus filed in the California Supreme Court in 2010. Petitioner raised claim one on direct appeal and in his second petition for writ of habeas corpus filed in the California Supreme Court. Resp.'s Lodg. Doc. 12 (ground 2). Petitioner raised claims four through eight for the first time in his second petition for a writ of habeas corpus filed in the California Supreme Court. Resp.'s Lodg. Doc. 12. Accordingly, petitioner raised all of his claims in his second petition filed in the California Supreme Court. As described above, the Supreme Court denied petitioner's second habeas petition with the following language: "The petition for writ of habeas corpus is denied. (See In re Robbins (1998) 18 Cal.4th 770, 780; In re Clark (1993) 5 Cal.4th 750.)." Resp.'s Lodg. Doc. 13. Respondent argues that the California Supreme Court's citation to In re Robbins and In re Clark constitutes a state procedural timeliness bar which precludes this court from considering the merits of petitioner's claims. Dckt. No. 25 at 17-18.`

As a general rule, "[a] federal habeas court will not review a claim rejected by a state court 'if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker v. Martin, 562 U.S.___, ___, 131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. ___, ___, 130 S. Ct. 612, 615 (2009). See also Maples v. Thomas, ___U.S.___, ___, 132 S. Ct. 912, 922 (2012); Greenway v. Schriro, 653 F.3d 790, 797 (9th Cir. 2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). In order for a state procedural rule to be found independent, the state law basis for the decision must not be interwoven with federal law. Cooper v. Neven, 641 F.3d 322, 332 (9th Cir. 2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be deemed adequate, the rule must be well established and consistently applied. Walker, 131 S. Ct. at 1128; James v. Schriro, 659 F.3d 855, 878 (9th Cir. 2011); Greenway, 653 F.3d at 797-98; Poland v. Stewart, 169 F.3d 575, 577 (9th Cir. 1999). Even if the state rule is independent and adequate, the claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000);Coleman, 501 U.S. at 749-50; see also Maples, 132 S. Ct. at 922.

Here, the California Supreme Court's citation to In re Robbins and In re Clark reflects that the petition was denied because it was untimely filed. Martin, 131 S.Ct. at 1122 ("A summary denial citing Clark and Robbins means that the petition is rejected as untimely.").*fn7

Denial of habeas relief by the California Supreme Court on the grounds that the application for relief was not timely filed is an independent and adequate state procedural ground requiring denial of a subsequent habeas petition in federal court. Martin, 131 S.Ct. 1120. See also Alvarez v. Wong, No. 09-15547, 425 Fed. Appx. 652 (9th Cir. Apr. 5, 2011). However, before finding a procedural default, "federal courts must carefully examine state procedural requirements to ensure that they do not operate to discriminate against claims of federal rights." Martin, 131 S.Ct. at 1130.

There is no evidence in the record that the timeliness bar was imposed in this case by the California Supreme Court in an attempt to discriminate against petitioner's claims of federal rights or that it was imposed in an unfair manner. There is also no basis for concluding that the imposition of California's timeliness rule here operated to "the particular disadvantage of petitioners asserting federal rights." Martin, 131 S.Ct. at 1131. See also Kindler, 130 S.Ct. at 620 (Kennedy, J., concurring) (a state procedural ground would be inadequate if the challenger shows a "purpose or pattern to evade constitutional guarantees"). Because California's timeliness rule is a valid procedural ground for precluding federal review of petitioner's claims, the court concludes that petitioner has procedurally defaulted these claims. Martin, 131 S.Ct. 1127. Therefore, the court may only reach the merits of petitioner's claims if he shows cause and prejudice or that failure to consider the claims will result in a fundamental miscarriage of justice.*fn8

The United States Supreme Court has held that "the existence of cause for a procedural default must ordinarily turn on whether the prisoner can show that some objective factor external to the defense impeded . . . efforts to comply with the state's procedural rule." Murray v. Carrier, 477 U.S. 478, 488 (1986). See also Coleman, 501 U.S. at 753 (cause for a procedural default exists where "something external to the petitioner, something that cannot fairly be attributed to him[,] . . . 'impeded [his] efforts to comply with the State's procedural rule.'"). "To establish prejudice resulting from a procedural default, a habeas petitioner bears 'the burden of showing not merely that the errors at his trial constituted a possibility of prejudice, but that they worked to his actual and substantial disadvantage, infecting his entire trial with errors of constitutional dimension.'" White v. Lewis, 874 F.2d 599, 603 (9th Cir. 1989) (citing United States v. Frady, 456 U.S. 152, 170 (1982)). To show that a failure to consider the merits of a claim would result in a fundamental miscarriage of justice, a petitioner must establish factual innocence. Schlup v. Delo, 513 U.S. 298, 327 (1995). The burden of establishing cause and prejudice or a fundamental miscarriage of justice rests with the petitioner. White, 874 F.2d at 603; Wildman v. Johnson, 261 F.3d 832, 842--43 (9th Cir. 2001).

Petitioner argues that he has established cause for his failure to appropriately present his claims to the California Supreme Court in one, timely filed petition. He alleges, and provides supporting evidence, that his appellate counsel failed to tell him about the outcome of his direct appeal until approximately one year after the appeal had been denied. Dckt. No. 26 at 2, 81. By that time, the deadline for filing a petition for review had expired. Id. at 2, 74. Appellate counsel later acknowledged in a letter to petitioner that he was at fault for failing to file a timely petition for review, but he promised that he would file a petition for a writ of habeas corpus in the California Supreme Court on petitioner's behalf. Id. at 2, 70. However, counsel failed to file the promised habeas petition. He also refused to give petitioner his case files despite petitioner's numerous requests for the files. Id. at 2, 74. Petitioner subsequently filed a complaint with the State Bar of California in which he explained the actions of his appellate counsel and sought to get possession of his case files. Id. at 2, 73. In response to petitioner's complaint, the State Bar sent appellate counsel a warning letter, whereupon, in February 2010, counsel finally gave petitioner his case files. Id. at 2, 77-79. Petitioner states that this was the first time he was able to ascertain which claims had been raised and which claims still needed to be raised. Id. at 2.

Petitioner also explains that the purpose of the first habeas petition he filed in the California Supreme Court was to request that, in light of the circumstances outlined above, he be allowed to proceed with a petition for review. Id. at 3. Petitioner states that he did not understand that he should have presented his claims to the California Supreme Court in that petition. He argues that his second habeas petition filed in that court, in which he actually presented his claims, should have been construed as "an extension" of his first petition." Id. In short, petitioner contends that his procedural default was caused by the ineffective assistance of his appellate counsel in failing to file a petition for review or a petition for writ of habeas corpus in the California Supreme Court after promising to do so, and in failing to give petitioner his case files so that he could file timely challenges to his conviction on his own behalf.

Ineffective assistance of counsel will establish cause to excuse a procedural default if it was "so ineffective as to violate the Federal Constitution." Edwards, 529 U.S. at 451 (citing Carrier, 477 U.S. at 486--88). See also Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008). The ineffective assistance claim must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards, 529 U.S. at 451 (citing Carrier, 477 U.S. at 489.) Here, as noted above, petitioner presented his ineffective assistance of appellate counsel claim to the state courts as an independent claim and has therefore cleared this hurdle.

An attorney's ignorance, inadvertence or negligence "is not 'cause' [for excusing procedural default] because the attorney is the petitioner's agent when acting, or failing to act, in furtherance of the litigation, and the petitioner must 'bear the risk of attorney error.'" Coleman, 501 U.S. at 753 (quoting Carrier, 477 U.S. at 488. However, an attorney who "abandons his client without notice . . . sever[s] the principal-agent relationship" and "no longer acts, or fails to act, as the client's representative." Maples, 132 S.Ct. at 922--23 (cause for the petitioner's state procedural default of failing to file a timely appeal in state court shown where petitioner was abandoned by counsel during post-conviction proceedings and lacked notice that he needed to protect himself by proceeding pro se). When an attorney abandons his client, "[the attorney's] acts or omissions . . . 'cannot fairly be attributed to [the client]'" and may constitute cause to excuse a procedural default. Id. at 923 (quoting Coleman, 501 U.S. at 753, 111 S.Ct. 2546). See also Towery v. Ryan, 673 F.3d 933, 942 (9th Cir. 2012) ("Withdrawal, whether proper or improper, terminates the lawyer's authority to act for the client," and "[t]he client is not bound by acts of a lawyer who refuses to represent the client."). Cf. Martinez v. Ryan, ___U.S. ___, 132 S.Ct. 1309, 1320 (2012) ("[W]here, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.").

Here, petitioner's appellate counsel abandoned him without notice when he: (1) failed to inform petitioner that his direct appeal had been denied; (2) failed to file a timely petition for review; (3) failed to file a petition for writ of habeas corpus in the California Supreme Court after promising to do so; and (4) refused to give petitioner his files until he was contacted by the State Bar. Because of appellate counsel's inaction, petitioner's claims were not presented to the California courts in a posture where they could be addressed on the merits. By the time petitioner tried to present his claims, they were subject to a state procedural bar. As in Maples, "abandoned by counsel, [petitioner] was left unrepresented at a critical time for his state post-conviction petition, and he lacked a clue of any need to protect himself pro se." 132 S.Ct. at 917. Appellate counsel's inaction and failures, set forth above, essentially left petitioner "without any functioning attorney of record." Id. at 927. Under these circumstances the petitioner has demonstrated cause to excuse his procedural default. Id. Cf. Towery, 673 f.3d at 942 (petitioner's trial counsel did not "abandon" him by failing to include an exhausted claim in federal habeas petition); Moorman v. Schriro, 672 F.3d 644 (9th Cir. 2012) (petitioner's appellate counsel did not abandon him, so as to excuse procedural default of claim, where petitioner was always represented by active counsel who sought to further his arguments).

However, as noted above, petitioner must also demonstrate prejudice in order to overcome the procedural bar imposed by the California Supreme Court. For the reasons detailed below, an analysis of petitioner's claims reflects that none of the alleged errors were of constitutional dimension. For this reason, petitioner's claims fail on their merits and he is unable to establish prejudice sufficient to overcome the procedural bar.*fn9

2. Substitution of Counsel (Claim One)

In his first claim for relief, petitioner argues that he was "denied the right to use counsel of his own choice" when the trial court refused to allow him to substitute retained counsel for his court appointed counsel shortly before the start of trial. Dckt. No. 1 at 4. He argues that the trial court's error was "structural" and "not subject to review for harmlessness." Id. at 7.

The California Court of Appeal explained the background to this claim, as follows:

Facts Related to the Motion to Continue Trial and the Motion to Substitute Retained Counsel for Appointed Counsel At the arraignment hearing held on September 8, 2003, Dane Cameron appeared for defendant, who entered pleas of not guilty to all charges.

On October 6, 2003, the court set a trial date of November 12, 2003.

On October 14, 2003, defendant moved to continue the trial because two of his expert witnesses were unavailable during the week set for trial. The People objected based on the negative effects of delay on the minor victims, as well as the statutory requirement that trial be commenced within 30 days of arraignment in cases where the victim is a minor.*fn10 (§ 1048, subd. (b).) The court continued trial until February 18, 2004,*fn11 after a paralegal in Cameron's employ filed a declaration recounting his conversation with one of the expert witnesses, Dr. Robert Kessler, a Professor of Urology at the Stanford University Medical Center. According to the paralegal, Dr. ...

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