United States District Court, E.D. California
JAMES K. SINGLETON, Jr., Senior District Judge.
Patrick Lawayne Perry, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. It appears that Perry has been released and is now on supervised parole. Respondent has answered, and Perry has replied. Perry has not filed a change of address with the Court.
I. BACKGROUND/PRIOR PROCEEDINGS
On direct appeal, the Court summarized the procedural background of the case as follows:
[Perry] was arraigned on October 31, 2005. He was represented by at least nine different attorneys before trial. He made unsuccessful Marsden motions as to at least five attorneys. Sometimes he had appointed counsel, and at other times he retained counsel.
On January 16, 2009, Judge White granted [Perry's] Faretta motion.
On the first day of trial, Tuesday, March 3, 2009, [Perry], who had posted bail the day before, moved for a continuance, claiming he was not prepared because he had been denied pro per resources while in custody. His motion was denied after an in camera hearing at which the pro per coordinator explained what assistance had been given to [him].
On the second day of trial, Thursday, March 5, 2009, before jury selection, [Perry] asked for counsel, stating that although he had had concerns about the competence of Jon Lippsmeyer, his last attorney, Mr. Lippsmeyer was familiar with the case and there was no reason he "wouldn't be able to go forward Monday. Mr. Lippsmeyer had this case for more than two years." [Perry] later reiterated his view that "Monday is still an option of us being able to go forward with Mr. Lippsmeyer."
The prosecutor opposed the motion, stating in part that [Perry] had been thoroughly warned by Judge White about the dangers of self-representation, and in the face of such warnings, [Perry] "flat out said I am ready to go pro per and that was in January. [¶] We are now in March[, 2009] and this is a 2005 case. It's one count. And it is the People's position [Perry] is simply just trying to drag this process out. And now that he's out of custody, this is one more thing that he wants to essentially use to stay out of custody and keep this case going. [¶] We are ready to go to trial. We do have a right to trial." She also stated that [Perry] had made "numerous" Marsden motions and "[h]e knows what's going on. And this is a stall tactic and we're ready to go."
[Perry] contended he had only recently been released and had not had time to prepare, he was not familiar with the new CALCRIM jury instructions, and he lacked trial skills he would need to oppose the prosecutor and insure the laws were properly upheld. [Perry] conceded he had represented himself in two criminal cases before.
In denying [Perry's] motion, the trial court summarized the history of this case, including [Perry's] filing of numerous unsuccessful Marsden motions, [Perry] repeatedly retaining counsel and then receiving appointed counsel, the fact that many different attorneys had represented [Perry] before he exercised his Faretta rights, the fact that all of the continuances in the case had been at [Perry's] request, "[a]nd every single one was because you had some problem with another lawyer, " and the fact that [Perry] had represented himself in two criminal cases before.
The trial court concluded granting the motion would cause "substantial and very prejudicial" "disruption or delay" to the People, and "[i]t seems to me that you have step-by-step for three and a half years been trying to manipulate the legal system to your advantage by getting lawyers kicked off your case and new lawyers brought in. [¶]... And it seems to me you are trying to stall the legal process."
After trial, but before sentencing, the trial court placed on the record the fact that, before denying [Perry's] reverse- Faretta motion, the court checked to see if Mr. Lippsmeyer would be available, but learned he had been in a "significant three strikes case next door, " in which his client was a prisoner accused of assaulting a guard. "So even if I had wanted to appoint Mr. Lippsmeyer at the time, I could not do that because he was involved in that trial. So... that would not have been an option for us at any time."
People v. Perry, No. C062278, 2011 WL 684602, at *2-3 (Cal.Ct.App. Feb. 28, 2011).
During jury selection, Perry, who was on bail, left the court and did not return. Id. at *1. The trial court found that he voluntarily absented himself from trial, and the trial was completed in absentia. Id. A jury convicted Perry of possessing cocaine base for sale, and found true allegations that he had two prior felony narcotic convictions and had served three prior prison terms. Id. The trial court sentenced Perry to 13 years in prison followed by 3 years of supervised parole.
Through counsel, Perry directly appealed, arguing that the trial court abused its discretion in denying his reverse- Faretta motion to terminate his pro per status and appoint counsel, and that the trial court erred in conducting the trial in his absence without appointing stand-by counsel.
Before his appeal was decided, Perry filed a pro se petition for a writ of habeas corpus with the superior court, arguing that his prior convictions were not proven by a preponderance of the evidence at a preliminary hearing, the trial court did not have jurisdiction to amend the complaint, and the trial court failed to hear a motion to exclude evidence of his prior convictions. On December 8, 2010, noting that his appeal was pending and all of Perry's complaints could be brought on direct appeal, the superior court dismissed the petition for lack of jurisdiction.
On December 4, 2010, also before his appeal was decided, Perry filed a pro se petition for writ of habeas corpus with the Court of Appeal, in which he argued that: 1) the trial court denied his right to counsel of choice by removing attorney Russell Miller without inquiring into Miller's reasons for removing himself from the case and without making a record of reasons for granting Miller's motion; 2) the trial court failed to set a time, date and place to hear a motion; and 3) the trial court abused its discretion in failing to reappoint attorney Carmen Butler after she allegedly abandoned his case. The Court of Appeal denied relief on December 16, 2010.
On February 28, 2011, the Court of Appeal resolved Perry's direct appeal, modifying the judgment to award Perry additional conduct credit, and otherwise affirming in a reasoned, unpublished opinion. Perry, 2011 WL 684602, at *9. The Court of Appeal held that "the trial court's explicit finding that [Perry] was trying to delay justice... [was] well-supported, " and that the trial court acted well within its discretion in denying Perry's reverse- Faretta motion. Id. at *5-7. With respect to Perry's claim that the trial court erred in proceeding to trial in his absence, the court concluded:
When [Perry] made his Faretta motion he chose to defend himself. After jury selection began, [Perry] chose to leave the courtroom, flee, and not defend himself. As former Presiding Justice Robert K. Puglia stated in a Faretta case, "Respect for the dignity and autonomy of the individual is a value universally celebrated in free societies and uniformly repressed in totalitarian and authoritarian societies. Out of fidelity to that value defendant's choice must be honored even if he opts foolishly to go to hell in a handbasket. At least, if the worst happens, he can descend to the netherworld with his head held high. It's called, Doing It My Way.'" ( People v. Nauton (1994) 29 Cal.App.4th 976, 981.)
[Perry's] way, in effect, was to default by walking out of the trial. [Perry] cannot now fault the trial court for honoring his voluntary choices about self-representation.
Perry, 2011 WL 684602, at *8.
On March 30, 2011, Perry filed a pro se petition for writ of error coram nobis with the Court of Appeal, arguing that his appellate counsel was ineffective for failing to raise on direct appeal the arguments that: 1) the trial court abused its discretion by relieving attorney Miller over Perry's objection; 2) the trial court failed to set a date, time and place to hear and rule on various motions; 3) the trial court erred in failing to reappoint attorney Butler; 4) his prior convictions were not proved in a preliminary hearing by a preponderance of the evidence; and 5) the trial court did not have jurisdiction to amend the complaint. The Court of Appeal treated the petition for writ of error coram nobis as a petition for writ of habeas corpus and denied it on April 15, 2011.
On April 4, 2011, Perry filed a counseled petition for review, in which he raised the same arguments that he had unsuccessfully raised on appeal to the Court of Appeals. The California Supreme Court summarily denied review on May 11, 2011.
On December 20, 2011, Perry filed an additional pro se petition for habeas corpus and motion for reconsideration with the superior court, alleging that: 1) he was denied his right to counsel of his choice when attorney Miller moved to be relieved from the case without stating any reasons on the record and the trial court granted the motion without making a record for granting that motion; 2) the trial court abused its discretion in failing to reappoint attorney Butler; 3) various trial judges failed to rule on certain motions; 4) the People failed to prove his prior convictions by a preponderance of the evidence at a preliminary hearing; 5) the trial court was without jurisdiction to amend the complaint to include his prior convictions where they had not been first proved by a preponderance of the evidence at a preliminary hearing; 6) trial counsel was ineffective at sentencing for failing to bring to the court's attention the fact that several of his post-conviction motions had been sealed and not ruled upon and for failing to request a new trial based on the fact that there was no live testimony at trial to prove those priors; and 7) appellate counsel was ineffective for failing to comply with his requests on what issues to argue on direct appeal. On February 9, 2012, the superior court denied relief in a reasoned opinion. On March 12, 2012, Perry filed a second pro se petition for writ of habeas corpus with the Court of Appeal, again arguing that: 1) the trial court denied his right to counsel of choice by relieving Mr. Miller from the case without requiring an explanation or stating on the record its reasons for granting Mr. Miller's motion; 2) the trial court abused its discretion in failing to reappoint Ms. Butler; 3) various trial court judges failed to set a time, date, and place to hear his motions, and failed to rule on those motions; 4) the People failed to prove his prior convictions at a preliminary hearing and by a preponderance of the evidence; 5) because his priors were not proved at a preliminary hearing by the preponderance of the evidence, the trial court was without jurisdiction to amend the complaint to include those priors; 6) counsel was ineffective at sentencing for failing to bring to the court's attention that some of his post-conviction motions were sealed and had not been ruled on; 7) appellate counsel was ineffective for failing to raise certain issues on direct appeal, and for failing to remove himself from the case when Perry attempted to fire him; 8) sentencing counsel was ineffective for failing to inform Perry that he had filed a suppression motion; and 9) the superior court erred in transferring his habeas case to the judge who presided over his trial. On April 12, 2012, the Court of Appeal summarily denied Perry relief.
At some point around this time, Perry filed a motion for reconsideration of the superior court's denial of his petition for writ of habeas corpus, in which he challenged the court's transfer of the petition to the judge who presided over trial. On April 16, 2012, the superior court construed Perry's motion as an attempt to disqualify the presiding judge and concluded that it was untimely, that it did not meet the procedural requirements for such a motion, and that it did not set forth any grounds for disqualification as it was mostly a disagreement with the ruling against him.
Finally, on April 26, 2012, Perry filed a pro se petition for writ of habeas corpus with the California Supreme Court, raising the same arguments that he raised in his petition to the Court of Appeal. The California Supreme Court summarily denied review on August 22, 2012. On August 22, 2012, Perry filed his pro se Petition for a Writ of Habeas Corpus with this Court.
II. GROUNDS RAISED
In his Petition before this Court, Perry argues that: 1) the trial court denied him his counsel of choice by allowing Mr. Miller to remove himself over Perry's objection without requiring Mr. Miller to state on the record his reasons for wanting to remove himself and without making a record of reasons for granting Mr. Miller's motion; 2) the trial court abused its discretion in failing to reappoint Ms. Butler, who he claims abandoned his case; 3) the trial court failed to hear and rule on several motions; 4) the trial court failed to hold a preliminary hearing before amending the complaint to include his prior convictions; 5) the trial court was without jurisdiction to amend the complaint to include his prior convictions where they were not proved at a preliminary hearing by a preponderance of the evidence; 6) trial counsel was ineffective for failing to inform Perry that he had filed a suppression motion; 7) counsel was ineffective at sentencing for failing to "press" the court to hear outstanding motions which had been filed but not ruled on; 8) appellate counsel was ineffective for failing to raise certain claims on direct appeal; and 9) the superior court abused its discretion by assigning his habeas case to the same superior court judge who presided over his trial Perry also requests an evidentiary hearing.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " § 2254(d)(1), or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, " § 2254(d)(2). A state-court decision is "contrary" to federal law "if the state court applies a rule that contradicts the governing law set forth" in controlling Supreme Court authority or "if the state court confronts a set of ...