Argued and Submitted July 8, 2013, San Francisco, California
[Copyrighted Material Omitted]
Appeal from the United States District Court for the District of Nevada. D.C. No. 2:07-cv-01312-JCM-GWF. James C. Mahan, District Judge, Presiding.
The panel affirmed the district court's (1) denial, on the merits, of a claim of invalid waiver of the right to counsel and (2) dismissal as unexhausted of a claim of denial of the use of compulsory process, in Nevada state prisoner Armis Arrendondo's habeas corpus petition pursuant to 28 U.S.C. § 2254.
The panel held that it was not unreasonable for the Nevada Supreme Court to conclude that Arrendondo waived his right to counsel knowingly and intelligently, where he was carefully advised of the procedural risks of foregoing representation of counsel, and also knew of his substantial penal exposure under the charges already filed. The panel held that Arrendondo's claim that his waiver of counsel was involuntary fails for lack of proof because he has not established that he was required to choose between constitutionally inadequate counsel and self-representation.
The panel held that the district court properly dismissed Arrendondo's compulsory-process claim as unexhausted, for failure to present an underlying federal theory, where Arrendondo argued and cited Nevada state law alone when he asserted, in the Nevada Supreme Court, that the trial court erred in refusing him adequate time to produce his witnesses. The panel concluded that Arrendondo's failure to bring a state post-conviction petition raising either his federal compulsory-process claim on the merits, or a claim of ineffective assistance of appellate counsel with respect to the compulsory-process issue, bars this court's consideration of his compulsory-process claim.
Judge Fernandez concurred in the result, but wrote that he is not willing to run the risk of unintended consequences that comes with saying too much, and therefore did not join in the majority's divagations and unnecessary assertions.
Heather Fraley (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Paul G. Turner, Assistant Federal Public Defender; Danice Arbor Johnson, Research & Writing Specialist, Office of the Federal Public Defender, Las Vegas, Nevada, for Petitioner-Appellant.
Karen A. Whelan (argued), Deputy Attorney General; Catherine Cortez Masto, Attorney General, Office of the Attorney General, Las Vegas, Nevada, for Respondents-Appellees.
Before: Ferdinand F. Fernandez, Richard A. Paez, and Marsha S. Berzon, Circuit Judges.
BERZON, Circuit Judge.
Armis Arrendondo represented himself against theft charges at trial and was sentenced under Nevada's habitual criminal statute, Nev. Rev. Stat. § 207.010, to two concurrent life sentences, with the possibility of parole after ten years. He contested his continued detention via a petition for habeas corpus under 28 U.S.C. § 2254, and now appeals the district court's (1) denial, on the merits, of his claim of invalid waiver of his right to counsel and (2) dismissal as unexhausted of his claim of denial of the use of compulsory process. Compelled by the statutory limits on our habeas corpus review of state convictions, we affirm.
In September 2003, a Las Vegas homeowner returned from a vacation in Colorado to find his residence ransacked, several of his possessions missing, and his Winnebago motor home gone from its garage.
The ensuing investigation led authorities to Arrendondo. Nevada indicted him on one count of possession of a stolen vehicle and another of possession of stolen property. See Nev. Rev. Stat. § § 205.273, 205.275.
At Arrendondo's arraignment, he pleaded not guilty. In the months that followed, several public defenders represented Arrendondo in pre-trial proceedings. Public defender Drew Christensen represented him at arraignment. Several weeks later, at a hearing on Arrendondo's motion for release, public defender Delbert Martin entered an appearance. Public defender Victor Austin was then appointed to represent Arrendondo, but at several subsequent calendar calls public defender Lynn Avants appeared instead of Austin.
Arrendondo grew dissatisfied with the quality of representation provided him by the public defender's office. At the second of the two calendar calls at which Avants appeared, Arrendondo expressed frustration that he had not met or been represented in court by Austin, his appointed lawyer. The court ordered Austin " to be prepared for [t]rial or another Public Defender will be assigned."
Approximately two and a half months after his arraignment, Arrendondo filed a handwritten Motion to Dismiss Counsel and Appointment of Alternate Counsel. In it, he alleged that his appointed attorney, " Victor Osten [sic]," had " refus[ed] or fail[ed] to communicate and/or visit" him in jail; had routinely missed court dates; and had " failed to assign an investigator to gather information." Arrendondo concluded by stating that " clearly, a conflict of interest now exist[s] between counsel/client (defendant)." At a subsequent hearing on the matter, Austin explained that Arrendondo had not complied with Austin's request to reveal the names and addresses of potential witnesses, a representation Arrendondo disputed. It was this failure to furnish names and addresses, Austin continued, that explained his unwillingness to appoint an investigator. Arrendondo, in turn, demanded " competent counsel to represent me because it just seems like he's absent-minded. I tell him one thing and two minutes later he forgets what I told him."
The court denied Arrendondo's motion for new counsel. Nonetheless, for reasons not apparent from the record, public defender Kristen M. Lynch replaced Austin as Arrendondo's attorney.
Over half a year later Arrendondo filed a second handwritten Motion to Dismiss Counsel. That motion alleged that Lynch had missed a court date; had " fail[ed] to file pretrial motions, writs, or petitions" in support of his case; and had " refus[ed] or fail[ed] to communicate and/or visit" Arrenondo in jail. It continued:
Lynch (Public Defender) and others like her are only interested in railroading the defendant and/or having the defendant sign a plea agreement. There is definitely a conflict of interest here. Its [sic] like having a nemesis in charge of ensuring that justice is done. The only fair remedy is to have a state appointed attorney assigned to this case, instead of a public defender.
The motion also sought to permit Arrendondo to proceed pro se.
At a hearing held in response to Arrendondo's motion, at which public defender Lynn Avants appeared rather than Lynch, the court canvassed Arrendondo to determine whether he sought to waive his right to counsel and, if so, whether he was doing so knowingly, intelligently, and voluntarily:
Court: . . . . Do you want to represent yourself or not?
Defendant: I believe, um, I would need standby counsel.
Court: We don't do that, in most instances. This certainly wouldn't be one. Maybe in a murder case I might concede. I don't know. I don't typically do that.
Defendant: When it comes to posing viable objections or proper arguments, you know, an attorney who's been practicing every day, um, obviously would do a much better job than myself.
Court: Do you want to let them do their job or do it yourself?
Defendant: I believe I can prove my innocence. With the assistance of counsel, of course, it will be much easier.
Court: Do you want to go ahead and let your attorney assist you?
Defendant: Will he be representing me?
Court: Are you the attorney of record?
Mr. Avants: No. It's Ms. Lynch.
Court: It's Ms. Lynch.
Defendant: I cannot. No way.
Court: Let's get on with it here. Do you want to ...