United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY, Magistrate Judge.
Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This action proceeds on the First Amended Petition filed October 27, 2011. (ECF No. 56 ("Ptn.").) He challenges a 2006 judgment of conviction in the Sacramento County Superior Court for felony spousal abuse and related charges, for which he was sentenced to a total of fifteen years and eight months in prison. Respondent has filed an answer to the petition, and petitioner has filed a traverse. (ECF Nos. 85, 104.) For the reasons set forth below, the undersigned will recommend that the petition be denied.
In its affirmation of the judgment on appeal, the California Court of Appeal, Third Appellate District, summarized the evidence at trial as follows:
In the early morning of April 16, 2006, Martin Crosby, a deputy sheriff, was patrolling La Rivera Drive when he saw a woman at a pay phone. She appeared distressed; she had no shoes on and her dress was torn. The woman was calling 911 to report that her husband, defendant, had beat her.
Deputy Crosby took the woman, Vani Williams, to her apartment. Her two children were there, but not defendant. Deputy Crosby found several things that corroborated Vani's story. She told him defendant beat her with a broom handle and a bat. He found a bent broom handle and a child's baseball bat. Vani reported defendant grabbed the phone and hid it. Deputy Crosby found it stuffed under the couch cushions.
Vani had injuries; Deputy Crosby noticed a black eye, swelling and bruising on both arms and a very swollen left wrist. He arranged for WEAVE, a domestic violence service provider, to interview her and provide shelter.
Vani Williams testified she was married to defendant and they had two children.FN1 On April 15, she planned to take the children to an Easter egg hunt. Defendant did not want her to take their son. When she returned, defendant demanded to know where she had been and with whom. He told her he knew she was cheating. Later defendant called her "[b]itch, whore, low life whore, stupid, ignorant." He beat her on her face and kicked her legs and thighs. She tried to call 911, but defendant pulled the plug on the phone and took it with him. He stopped her from leaving by blocking the doorway.
FN1 Shortly after her testimony began, Vani refused to answer questions and wanted to "plead the Fifth." She did not want to testify against defendant. The tape of her 911 call to police, in which she said her husband was high on cocaine and drunk and beating her, was played to the jury. The court warned defendant against intimidating the witness; deputies saw defendant motion "stop" when Vani was testifying.
Defendant went to the store to get more beer. He told his wife he would beat her up when he finished the beer. He told her he would kill her and that he would hit her with the bat until she could not move. Vani was scared and fell asleep on the couch. She awoke to someone hitting her. Defendant hit her with a broom stick. When defendant went to the bathroom, she ran out to a pay phone. She had a black eye and her arms, legs, chest and feet were swollen. The jury was shown photographs of her injuries.
After the incident Vani went to a safe house with her children. One week later she learned from a niece that defendant was having a garage sale and selling her possessions. She contacted the police to accompany her to her house. Defendant was inside and the police took him into custody.
Vani also testified to prior incidents of domestic violence. On April 2, defendant thought she was cheating. He pulled her into the back room and they hit each other. When the phone bill came, only defendant could look at it; he checked the bills to see if Vani was calling another man. Defendant took most or all of her public assistance check; when she worked she had to pay defendant to babysit the children. One morning when she dropped her son off at Head Start, defendant was waiting by her car. He asked for money. When she said no, he stopped her from getting in the car and pulled her necklace off. A police officer arrived and chased defendant. Defendant was taken into custody and the necklace was recovered. During October 2004, defendant would call her 20 times a day, "talking crazy."
During defendant's cross-examination of his wife, the jury learned about several restraining orders against defendant and allegations of other misconduct, including an incident where defendant urinated on his wife. The court cautioned defendant he was reading into the record portions of police reports that were highly incriminating.
Two defense witnesses testified Vani told them defendant threatened to kill her, the children and himself. Defendant's sister, Cynthia Hill, testified that during a period when Vani had a restraining order against defendant, she came to Hill's house although defendant was there. Vani did not appear frightened of defendant. She stuck out her tongue and taunted defendant that he could not come near her. Hill claimed Vani did not want to testify and said there were a lot of false things in the police report. Vani said she was pressured by the district attorney.
Hill also testified that defendant came to her house "high as a kite." She had called 911 when defendant was released on bail, telling the operator defendant was on a rampage and going to do damage to his wife. Tapes of phone calls between defendant and Hill were played. In one call, defendant tells his sister he has to have plan A or B. In a worst case scenario, the victim could say the incident happened one week before and there would be no "corpus delexi (sic) because the crime was reported on this date." In another call, defendant told his sister he had been reading the law and found a case where the witness took the Fifth. The proceeding was stopped and the witness was granted immunity. Then she said she lied because she was mad at the defendant and the case was dismissed. He asked his sister, "Do you understand the case I'm telling you about?... I can't say nothing on these phones but I can just tell you about a case I read."
Defendant's niece provided an alibi for defendant. She testified defendant and his son were at her house from 10 or 11 o'clock the night of April 15 until the next day.
Defendant also called Elaine Icenhour, a nurse practitioner, as an expert witness, in an attempt to show the bruises on Vani were old. Icenhour testified the black and blue or purplish color of bruises can appear instantly. The significant swelling indicated a significant amount of soft tissue trauma. The bruising was in a linear pattern, indicating Vani was struck with a long object. Vani's elevated white blood count was consistent with inflammation and trauma.
Icenhour had no doubt the injuries were from acute trauma.
During the course of the trial, defendant repeatedly violated court orders. The court found him "manipulative and abusive." The court held defendant in contempt on five different occasions.
People v. Williams, 2008 WL 3970537, at * *1-3 (Cal.App. 3 Dist., Aug. 27, 2008), also at Lod. Doc. 5. The facts as set forth by the state court of appeal are presumed correct. 28 U.S.C. § 2254(e)(1).
II. Procedural History
Following a jury trial in the Sacramento County Superior Court in 2006, at which petitioner represented himself, he was convicted of four felonies: spousal abuse resulting in a traumatic condition (Cal. Penal Code § 273.5(a)); assault with a deadly weapon (§245(a)(1)); false imprisonment (§ 236); and making criminal threats (§ 422). For purposes of California's Three Strikes law and repeat offender law, the jury also found true a 1979 prior conviction for attempted robbery. (§§ 667(b)-(i)), 667(a).) (Clerk's Transcript (CT) 401-403, 594-97; 1 Record of Transcript (RT) 72a.) The trial court sentenced petitioner to a total of fifteen years and eight months in state prison. (Lod. Doc. 1; CT 706-707; RT 1597-98.)
Petitioner appealed the judgment. On August 28, 2008, the California Court of Appeal, First Appellate District, affirmed the judgment in a reasoned opinion. (Lod. Doc. 5.) On November 12, 2008, the California Supreme Court denied review. (Lod. Doc. 7.)
On June 12, 2008, petitioner filed a habeas petition in the Contra Costa County Superior Court, challenging the validity of his 1979 conviction. (Lod. Doc. 8.) The petition was denied as untimely (Lod. Doc. No. 9), and subsequent petitions raising this claim were denied in the court of appeal (Lod. Doc. No. 13) and California Supreme Court (Lod. Doc. No. 15).
On October 13, 2009, petitioner filed a habeas petition in the Sacramento County Superior Court, Case No. 09F07776, raising sixteen claims, nearly all of which are included in the instant petition. (Lod. Doc. 16.) On November 19, 2009, the superior court denied the petition in a reasoned opinion. (Lod. Doc. 17.)
On January 16, 2010, petitioner filed a habeas petition in the California Court of Appeal, Third Appellate District, Case No. C063844, raising eighteen claims, nearly all of which are included in the instant petition. (Lod. Doc. 18.) The court of appeal denied the petition on January 28, 2010. (Lod. Doc. 19.)
On March 24, 2010, petitioner filed a habeas petition in the California Supreme Court, Case No. S18192, raising twenty-one claims, twenty of which are included in the instant petition. (Lod. Doc. 20.) On November 23, 2010, the California Supreme Court denied the petition with a citation to In re Clark, 5 Cal.4th 750 (1993). (Lod. Doc. 21.)
On October 23, 2009, petitioner filed a federal habeas petition in this court. (ECF No. 1.) On June 10, 2010, the court granted petitioner's motion to stay the proceedings pending exhaustion of claims in state court. (ECF No. 19.) On October 27, 2011, he filed the operative first amended petition. (ECF No. 56.)
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states: 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.
As a preliminary matter, the Supreme Court has recently held and reconfirmed "that § 2254(d) does not require a state court to give reasons before its decision can be deemed to have been adjudicated on the merits.'" Harrington v. Richter, 131 S.Ct. 770, 785 (2011). Rather, "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." Id. at 784-785, citing Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). "The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely." Id. at 785.
The Supreme Court has set forth the operative standard for federal habeas review of state court decisions under AEDPA as follows: "For purposes of § 2254(d)(1), an unreasonable application of federal law is different from an incorrect application of federal law.'" Harrington, supra, 131 S.Ct. at 785, citing Williams v. Taylor, 529 U.S. 362, 410 (2000). "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." Id. at 786, citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Accordingly, "a habeas court must determine what arguments or theories supported or... could have supported the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Id. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[, ]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id., citing Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
The undersigned also finds that the same deference is paid to the factual determinations of state courts. Under § 2254(d)(2), factual findings of the state courts are presumed to be correct subject only to a review of the record which demonstrates that the factual finding(s) "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." It makes no sense to interpret "unreasonable" in § 2254(d)(2) in a manner different from that same word as it appears in § 2254(d)(1) - i.e., the factual error must be so apparent that "fairminded jurists" examining the same record could not abide by the state court factual determination. A petitioner must show clearly and convincingly that the factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338 (2006). The habeas corpus petitioner bears the burden of demonstrating the objectively unreasonable nature of the state court decision in light of controlling Supreme Court authority. Woodford v. Viscotti, 537 U.S. 19 (2002). Specifically, the petitioner "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, supra, 131 S.Ct. at 786-787. Clearly established" law is law that has been "squarely addressed" by the United States Supreme Court. Wright v. Van Patten, 552 U.S. 120, 125 (2008). Thus, extrapolations of settled law to unique situations will not qualify as clearly established. See e.g., Carey v. Musladin, 549 U.S. 70, 76 (2006) (established law not permitting state sponsored practices to inject bias into a criminal proceeding by compelling a defendant to wear prison clothing or by unnecessary showing of uniformed guards does not qualify as clearly established law when spectators' conduct is the alleged cause of bias injection). The established Supreme Court authority reviewed must be a pronouncement on constitutional principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules binding only on federal courts. Early v. Packer, 537 U.S. 3, 9 (2002).
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early, supra, 537 U.S. at 8. Where the state courts have not addressed the constitutional issue in dispute in any reasoned opinion, the federal court will independently review the record in adjudication of that issue. "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 v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
"When a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits - but that presumption can in some limited circumstances be rebutted." Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013). "When the evidence leads very clearly to the conclusion that a federal claim was inadvertently overlooked in state court, § 2254(d) entitles the prisoner to" de novo review of the claim. Id. at 1097.
II. Procedural Bar
The court first addresses respondent's contention that most of the twenty-five claims in the petition are procedurally barred. This argument concerns the twenty claims listed in the instant petition as Claims 1-A, 1-B, 3, 6, 7, and 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, and 23.
These twenty claims correspond to the following claims in petitioner's state habeas petition: I-A, I-B, XVII, 2-A, 2-B, III, IV, V, VI, VII, VIII, IX, X(A), X(B), XI, XII, XIII, XIV, XV, and XVI. (See Lod. Doc. 20.) As stated above, the California Supreme Court denied this petition on November 23, 2010, with a citation to In re Clark, 5 Cal.4th 750 (1993). (Lod. Doc. 21.)
Respondent argues that nineteen of the instant claims (all except Claim 3) are procedurally barred because they were rejected on the independent and adequate grounds of successiveness and untimeliness. 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. 307, 131 S.Ct. 1120, 1127 (2011). Procedural default can only block a claim from federal habeas review if the state court, "clearly and expressly states that its judgment rests on a state procedural bar." Harris v. Reed, 489 U.S. 255, 263 (1989).
In denying petitioner's state habeas petition, the California Supreme Court cited In re Clark without pin cites. (Lod. Doc. 21.) Clark discusses several procedural bars used by California courts. One portion of Clark pertains to the state bar on successive petitions, while another concerns the state bar for untimeliness. See Bodnar v. Davis, 2014 WL 794575, *19-20 (C.D. Cal. 2014) (collecting cases). Only one of these - untimeliness - is clearly an adequate and independent bar for purposes of procedural default. See Walker, 131 S.Ct. at 1127-31 (California's timeliness bar meets "independent and adequate" criteria so as to preclude federal habeas review).
The Ninth Circuit has held that "a procedural default based on an ambiguous order that does not clearly rest on an independent and adequate state ground is not sufficient to preclude federal collateral review." Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001) (internal quotation omitted); see also Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003) (when a state court order invokes multiple procedural bars without specifying which bars are applied to which claims, and the federal court is unable to resolve the ambiguity, the state order will not support a procedural default); Washington v. Cambra, 208 F.3d 832, 833-34 (9th Cir. 2000) (reversing dismissal of habeas petition where California Supreme Court invoked two state procedural bars without specifying which rule applied to which claim and one of the two bars was not an independent and adequate state bar).
Respondent argues that "[e]ven if the California Supreme Court's citation to Clark is interpreted as a denial based on successiveness alone, the procedural bar is still independent and adequate." (ECF No. 85 at 29.) Respondent also asserts that one claim - Claim 18 - was previously barred for untimeliness. (Id. at 31) The court need not resolve these procedural default issues, however, as it will proceed to review petitioner's claims on the merits. See Lambrix v. Singletary, 520 U.S. 518, 525(1997) (noting that, in the interest of judicial economy, courts may resolve easier matters where complicated procedural default issues exist).
III. Petitioner's Claims
1-A. Self-Representation at Trial
Petitioner claims the trial court erred when it granted his request to represent himself at trial, as petitioner was visually handicapped. (Ptn. at 19.) Petitioner asserts that he is legally blind and cannot read written material without the aid of a magnifier, cannot evaluate trial exhibits or view the participants in the courtroom, and cannot see clearly even with corrective lenses. (Id. at 20.) Petitioner claims that the trial court violated his Sixth Amendment right to counsel, as he should not have been permitted to represent himself. (Id. at 21-22.)
A. Standard of Review
Preliminarily, the court addresses the standard of review. Petitioner first presented this claim in a habeas petition filed in the Sacramento County Superior Court in October 2009. The superior court denied the claim on procedural grounds and, alternatively, on the merits. Subsequently, the California Supreme Court denied the petition presenting this claim with a citation to In re Clark.
If no state court has adjudicated a federal claim on the merits, the federal court must review the claim de novo. Cone v. Bell, 556 U.S. 449, 472 (2009); see also Pirtle v. Morgan, 313 F.3d 1160, 1167-68 (9th Cir. 2002) (holding that de novo standard of review rather than the deferential standard of § 2254(d) applies where state courts never reached merits of habeas claim). The presumption that a state court has adjudicated a claim on the merits applies "in the absence of any indication or state-law procedural principles to the contrary." James v. Ryan, 733 F.3d 911, 915 (9th Cir. 2013) (quoting Harrington v. Richter, 131 S.Ct. 770, 785 (2011)).
Here, by citing In re Clark, the California Supreme Court indicated that it was denying petitioner's claims on state-law procedural principles. Thus, even though the superior court ruled on the merits of the claims, de novo review is proper. See Ryan, 733 F.3d at 915; see also Berkley v. Miller, 2014 WL 2042249, *5 (C.D. Cal. April 2, 2014) ("The Court will not disregard the California Supreme Court's procedural denial and look through it to the merits decisions of the San Bernardino County Superior Court and the California Court of Appeal... The relevant state decision for purposes of the Court's habeas review is the procedural denial by the California Supreme Court.... [Thus the Court will review the claims de novo."). But see Conner v. Lewis, 2014 WL 4348460, *2 (N.D. Cal. Sept. 2, 2014) (superior court decision entitled to AEDPA deference where California Supreme Court denied petition on procedural grounds).
The mere fact of constitutional error is not by itself enough to justify habeas relief. Rather, on collateral attack a constitutional trial error requires relief only if it "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 113 S.Ct. 1710, 1714 (1993). The Ninth Circuit has held that "the Brecht standard should apply uniformly in all federal habeas corpus cases under § 2254." Bains v. Cambra, 204 F.3d 964, 977 (9th Cir. 2000). Moreover, even on de novo review, factual determinations by the state court are presumed correct and can be rebutted only by clear and convincing evidence. Pirtle, 313 F.3d at 1168; 28 U.S.C. § 2254(e).
B. State Court Decision
Addressing this claim, the state superior court summarized the relevant facts as follows:
a. Background Regarding Reasonable Accommodations
The court's underlying file shows no mention by petitioner at any time before May 16, 2006 that he is legally blind and needed accommodations. Indeed, the transcript of the preliminary hearing that was held one week before then, on May 9, 2006, shows not only that petitioner failed to make any similar motion, but that petitioner fully participated as his own counsel by rigorously questioning witnesses and objecting to testimony, attempting to impeach by reading aloud from documents that he was obviously able to read, and making various arguments that cited the contents of documents and various cases and statutes. On page 82 of the reporter's transcript, petitioner stated that he wanted to cite Mills v. Superior Court but could barely read the print because it was so small, and asked the judge to read it; however, neither at that time nor at any other time did petitioner state that he was having difficulty seeing anything at the preliminary hearing because he is legally blind and that he need auxiliary assistance.
The court's underlying file shows that petitioner made no mention of needing accommodations until he filed his pretrial motion on May 16, 2006, just one week after the preliminary hearing, for reasonable modification and accommodation of the courtroom. In the motion, a copy of which petitioner attaches to the petition, petitioner claimed to be handicapped, and asked that all documents served on him be in large print, that he be allowed to use a cassette recorder for the purpose of note retrieval, that he be given a daily transcript on the proceedings, that auxiliary aids be installed in the courtroom or alternatively that advisory counsel be appointed, and that he be given more time in the law library. He attached his own declaration under penalty of perjury, attesting that he is legally blind and has been legally blind since birth, and that he had been certified as legally blind within the past year by a licensed physician.
The motion was heard by the "home court, " pretrial, on May 18, 2006. The court's blue sheet minute order indicates that Judge Tochterman denied the motion at that time.
One week later, on May 25, 2006, petitioner filed an ex parte motion for a medical examination of himself to establish that he is legally blind and needs reasonable accommodation of the courtroom because he is unable to view the participants. On May 26, 2006, he filed another motion, for funds to purchase a tape recorder to use as notes of the proceeding because he is legally blind, and another motion, for electronic recording or alternatively a daily transcript of court proceedings. On May 30, 2006, he filed a "notice of appeal" with this court, that the court had failed to rule on these motions, and filed a motion for reconsideration of his request for reasonable accommodations due to his being legally blind. Petitioner attaches a copy of each of these motions to the instant petition. The court's blue sheet minute order indicates that on May 30, 2006, Judge Tochterman, sitting in the "home court, " denied petitioner's motion for a recording device; the underlying file as well as petitioner's attachments show that Judge Tochterman also wrote "Denied" on the other motions.
Trial commenced on July 25, 2006. The court's yellow sheet minute orders for the trial do not indicate any mention by petitioner that he is legally blind and needed his motions ruled upon until August 1, 2006, the fifth day of trial proceedings, before opening statements were presented and trial testimony was first taken.... Petitioner explained to the court that he had made numerous motions in an attempt to obtain accessibility to the courtroom due to his disability but had been repeatedly denied in his attempts. Petitioner then asked for a close-circuit large-screen television so that he could see the demeanor of persons including the jurors. At that time, the court took under submission petitioner's request for accommodation for his disability....
Trial continued the next day, without mention in the minute order of the subject. However, petitioner attaches a copy of another reporter's transcript... at which time petitioner further argued for a closed-circuit large-screen television, because a projector was going to be used during the next part of the trial and petitioner claimed that he would not be able to see what would be projected. The court stated that it would consider the request, but noted that petitioner was nevertheless able to read and had numerous documents in front of him that he frequently read....
Petitioner attaches a copy of [an]other reporter's transcript... in which the court informed petitioner that the court had been unaware until recently that petitioner was legally blind because petitioner had been reading and writing, referencing and cross-referencing various files in front of him, reading exhibits and referencing specific paragraphs from those exhibits in asking witnesses to recollect certain matters. The court stated that when the court learned petitioner had a vision problem, the court requested court personnel to assist in figuring out how to assist petitioner, that those persons were working on the matter, and that petitioner's disability did not appear to be as compelling as petitioner would have the court believe. The court also stated that certain testimony was being transcribed for petitioner, and recessed the matter briefly so that court staff could determine what could be done to assist petitioner. Petitioner complained that his previous motions on the matter had been denied and that the present court had become aware of the problem during trial but that the People had now rested and the court still had not addressed the matter. The court responded that petitioner had said nothing during jury voir dire, and that petitioner was not deaf and could hear the jurors' answers, and further, that petitioner had commented on one witness's attire, and that the court believed that petitioner was simply trying to fray the record with every conceivable issue that could be raised on appeal. Petitioner again protested that the People by now had already rested, but agreed to meet with court personnel.
On August 3, 2006, the court issued a written order that petitioner was to have a tape recorder, a fixed camera on the jury and on the witnesses, and that two 19-inch monitors were to be taped to petitioner's counsel table; the ruling noted that this resolution was discussed with petitioner and that petitioner represented that this was satisfactory.
On August 7, 2006, petitioner filed a motion to dismiss, based on the court's failure to rule on his motion for accommodation until after the People had rested at trial. The next day, petitioner asked for a reader for assistance, and later that day the court ordered an ADA coordinator to read transcripts into a tape recorder for petitioner....
Thereafter, the jury convicted him on the charges, and found one prior allegation to be true.
The reporter's transcript for the preliminary hearing shows no indication that petitioner had any problem in representing himself and fully participating in that proceeding.... As the court noted during trial, petitioner had been fully participating in the trial and appeared to have been fully ...