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Phillips v. Biter

United States District Court, S.D. California

July 22, 2014

M.D. BITER and K. HARRIS, Respondents.


GONZALO P. CURIEL, District Judge.


Petitioner Lawrence L. Phillips ("Petitioner"), a state prisoner proceeding pro se, filed the present Petition for Writ of Habeas Corpus seeking 28 U.S.C. § 2254 habeas relief on the ground that the trial court improperly denied Petitoner's first three motions filed pursuant to People v. Marsden , 2 Cal.3d 118 (1970), for substitution of counsel during Petitioner's state court trial. (Dkt. No. 1.) On February 5, 2013, United States Magistrate Judge Nita Stormes issued a Report and Recommendation ("R&R") recommending that this Court DENY the Petition. (Dkt. No. 10.) On April 24, 2013, Petitioner filed objections ("Objections") to the R&R. (Dkt. No. 16.)

For the reasons set forth below, this Court OVERRULES Petitioner's Objections, ADOPTS Judge Stormes's R&R in its entirety, and DENIES Petitioner's petition for writ of Habeas Corpus.


The district court's role in reviewing a Magistrate Judge's report and recommendation is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the district court "shall make a de novo determination of those portions of the report... to which objection is made, " and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id . When no objections are filed, a district court may assume the correctness of the magistrate judge's findings of fact and decide the motion on the applicable law. Campbell v. United States Dist. Court , 501 F.2d 196, 206 (9th Cir. 1974); Johnson v. Nelson , 142 F.Supp.2d 1215, 1217 (S.D. Cal. 2001).


The R&R clearly lays out the underlying factual and procedural history. While Petitioner's filed Objections are couched as factual objections, they either confirm the R&R's factual findings or present differing legal conclusions drawn from the facts rather than objecting to the facts themselves. This Court, therefore, presumes the R&R's recitation of the facts to be correct and incorporates by reference the background as set forth in the R&R. See Campbell , 501 F.2d at 206. The Court provides only a brief background here.

Petitioner filed four Marsden motions during his state court criminal proceedings seeking substitution of counsel. The instant petition concerns the first three Marsden motions filed by Petitioner seeking substitution of Petitioner's trial counsel ("Counsel"). The first Marsden motion ("Marsden I") was made on August 3, 2009, the date Petitioner's trial was set to begin. (Lodgment 5, Vol. 3 at 31.) Petitioner informed the trial court that: (1) Petitioner's Counsel was away from his office for a month, (id. at 32); (2) Counsel was disrespectful to Petitioner's mother, (id. at 36-37); and (3) Counsel decided not to cross-examine witnesses, (id. at 33-35). Petitioner's Counsel clarified that he was away from his office on a one-week vacation and a three-week trial training program, and had met with Petitioner twice to discuss the case in the week prior to his trip. (Id. at 37-38.) Counsel designated his supervisor to handle his cases while he was away. (Id.) Petitioner's counsel acknowledged hanging up the telephone on Petitioner's mother, but explained that she was verbally abusive to him and that they had since come to a "mutual respect." (Id. at 39-40.) Counsel described the difficulty of locating witnesses and confirmed that he and Petitioner had fundamental disagreements on trial strategy. (Id. at 39-40.) Counsel stated that he did not have a very good working relationship with Petitioner, but he was nevertheless prepared to vigorously represent him. (Id. at 40-42.) The trial court observed that Petitioner and Counsel were communicating despite the disagreements, and advised Petitioner that Counsel held responsibility for tactical legal decisions. (Id. at 41, 44-45.) The trial court concluded that Counsel's representation was effective and that the attorney-client relationship had not deteriorated to the point where deficient or incompetent representation would be provided. (Id. at 45-47.) Furthermore, the trial court found that Petitioner could not justify the untimeliness of the motion. (Id. at 46-47.) Accordingly, the trial court denied the motion. (Id. at 47.)

The second Marsden motion ("Marsden II") was made on August 4, 2009, the following day. (Id. at 90.) Petitioner stated that he and Counsel could not communicate because of their discrepant views and unwillingness to compromise. (Id. at 93.) The trial court noted that Petitioner and Counsel must have been communicating if they were disagreeing. (Id. at 95.) Counsel stated that he felt physically threatened by Petitioner. (Id. at 90-91.) Petitioner assured the court, upon its request, that he would not attack Counsel; Counsel confirmed that he would continue to effectively represent Petitioner. (Id. at 96-98.) The trial court then denied the motion. (Id. at 98.)

The third Marsden motion ("Marsden III") was made on the following day, August 5, 2009. (Id. at 101.) Counsel advised the trial court that he was developing physical symptoms of stress. (Id. at 102.) When asked whether he could proceed representing Petitioner if sufficient security measures were in place, Counsel indicated that he could feel safe in the courtroom but was concerned that he and Petitioner lacked mutual trust and communication. (Id. at 103, 105, 112.) The trial court found the motion untimely and that granting the motion would significantly burden the prosecution. (Id. at 118.) The trial court also found Petitioner largely responsible for the conflict because of his refusal to cooperate with Counsel, which was not grounds for substitution of counsel under People v. Marsden. (Id. at 106.) The trial court denied the motion. (Id. at 123.)

Petitioner was convicted on August 11, 2009 of two counts of assault, two counts of corporal injury, one count of false imprisonment, one count of making a criminal threat, and one count of unlawful taking and driving of a vehicle. (Lodgment 1 at 169, 171, 172, 174, 176-78, 358-59.) Petitioner was sentenced to twenty-four years and four months. (Lodgment 1 at 358-59.) Petitioner's state law remedies were exhausted when the California Court of Appeal denied his appeal and the California Supreme Court denied his Petition for Review. (Lodgment 9; Lodgment 11.)


The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") governs this Petition. See Lindh v. Murphy , 521 U.S. 320, 336-37 (1997). Under AEDPA, a federal court will not grant habeas relief with respect to any claim adjudicated on the merits in state court unless the decision was (1) based on an unreasonable determination of the facts in light of the evidence presented or (2) contrary to or involved an unreasonable application of clearly established federal law. 28 U.S.C. § 2254(d); Early v. Packer , 537 U.S. 3, 7-8 (2002). The state court decision must be more than incorrect or erroneous to warrant habeas relief. Lockyer v. Andrade , 538 U.S. 63, 71-73 (2003). The standard under AEDPA is not met unless the state court's application of the law is "objectively unreasonable." Id . For ...

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