United States District Court, S.D. California
ORDER ON DEFENDANT’S REQUEST TO PROCEED PRO SE
AND TO UNDERGO PSYCHIATRIC EVALUATION
William V. Gallo United States Magistrate Judge
November 20, 2015, the government filed a complaint seeking
Defendant Luis Silva Peralta’s extradition to Mexico
and an arrest warrant was issued. (ECF Nos. 1, 2.) Defendant
was arrested several months later and made his initial
appearance on February 22, 2016. (ECF Nos. 3, 4.) The Court
held a detention hearing on February 26, 2016, at which time,
pursuant to Defendant’s stipulation and waiver of
hearing, he was ordered detained without bail. (ECF Nos. 7,
9.) Status hearings were held on April 21, May 5, 18 and 31,
and July 11, 2016. (ECF Nos. 10, 14, 15, 17, 23).
extradition proceeding presents an unusual set of
circumstances. As is customary in this District (and perhaps
elsewhere), the Court appointed counsel to represent
Defendant. On May 5, 2016, however, Defendant expressed a
desire to represent himself. (ECF No. 27, at 1-3.) Defendant
refused to meet or communicate with appointed counsel, and
counsel therefore made an application to be relieved.
(Id.) The Court relieved counsel and appointed
another attorney from the CJA list with the hope that new
counsel might establish a working relationship with
Defendant. (Id.) Regrettably, this did not happen,
and Defendant vociferously reiterated his opposition to
appointed counsel. (ECF No. 28, at 3, 8-12.) Given
Defendant’s insistence on self-representation, the
Court initiated a Faretta hearing to determine whether
Defendant’s waiver of counsel was knowing and
intelligent. (Id. at 3-5.) However, as the Court
began the Faretta inquiry, Defendant chose not to
answer certain questions, prompting his attorney to ask for a
continuance. (Id. at 9-10.) At the resumption of the
Faretta hearing on May 31, 2016, counsel quickly
moved, pursuant to 18 U.S.C. § 4241, for Defendant to be
evaluated for mental competency. (ECF No. 29, at 1-7.)
issues have been presented. First, can Defendant effectively
waive his right to counsel if he is incompetent? Second,
assuming incompetency, can the extradition matter proceed,
notwithstanding Defendant’s objection to being
represented by counsel? For reasons discussed below, the
answer to the first question is “no, ” and the
answer to the second question is “yes.”
Attempts to Hold a Faretta Hearing
attorney contends that unless Defendant is deemed competent,
he cannot knowingly and intelligently waive his right to an
attorney. Furthermore, the only way to determine competency
is for Defendant to be evaluated by a mental health
professional. The Court would ordinarily agree with counsel -
if this were a criminal case - but it is not.
extradition case is not a criminal proceeding. Matter of
Extradition of Mainero, 990 F.Supp. 1208, 1218 (S.D.
Cal. 1997); DeSilva v. Leonardi, 181 F.3d 865, 868
(7th Cir. 1999). Consequently, there is no right to counsel.
Anderson v. Alameida, 397 F.3d 1175, 1180 (9th Cir.
2005). Although counsel was appointed to represent Defendant,
it was done as matter of historical practice in this
District, see, e.g., USA v. Gardzielewska,
14-mj 4024-BGS, ECF No. 7 (S.D. Cal. Dec. 15, 2014)
(appointing counsel in extradition proceeding); USA v.
Torres Rivera, 13-mj-2252, ECF No. 5 (S.D. Cal. June 13,
2013) (same); USA v. Munoz, 12-mj-1001-RBB, ECF No.
7 (S.D. Cal. April 2, 2012) (same), to assist Defendant
through the process and to enhance judicial efficiency, not
because Defendant has a “right” to counsel.
Defendant’s counsel acknowledges that there is no Sixth
Amendment right to counsel in extradition matters, but
claims, without support, that Defendant has a Fifth Amendment
right to an attorney. The Court has asked counsel to provide
legal authority for this assertion, but none has been
forthcoming. The Court’s own research has turned up no
support for this contention.
the Court has appointed counsel (even though the appointment
is not required by law) it is reluctant to relieve counsel
simply because Defendant professes his earnest desire to
proceed alone. Although perhaps not strictly required,
because this is not a criminal proceeding, the Court twice
attempted to engage in a Faretta inquiry, but was
thwarted by Defendant and his counsel. A criminal
defendant’s right to self-representation is not
absolute. Faretta, 422 U.S. at 835; Indiana v.
Edwards, 554 U.S. 164, 174 (2008). As with the waiver of
most criminal rights, the waiver of the right to counsel must
be made knowingly and intelligently for it to be valid.
Faretta, 422 U.S. at 835; see also Johnson v.
Zerbst, 304 U.S. 458, 464-65 (1938). The
Faretta inquiry is designed to ensure that a
criminal defendant who elects to proceed pro se
makes the ultimate decision with “eyes [wide]
open.” Faretta, 422 U.S. at 835 (quoting
Adams v. U.S. ex Rel. McCann, 317 U.S. 269, 279
(1942)). The judge typically will ask questions that explore
the defendant’s educational background and familiarity
with the criminal justice system as well as admonish the
defendant about the challenges and risks of
self-representation and the expectation that the rules will
be followed just as would be expected of any attorney.
Depending on the responses from the defendant, the judge will
either grant or deny the request or appoint standby counsel.
See McKaskle v. Wiggins, 465 U.S. 168, 184 (1984)
(criminal defendant’s Sixth Amendment rights are not
violated by appointment of standby counsel over
defendant’s objections to steer defendant through basic
counsel contends that Defendant is not competent to represent
himself and has provided the Court under seal with a
declaration from Defendant’s sister which addresses
certain psychiatric issues which purportedly affect
Defendant. (ECF No. 35.) At every court appearance,
while Defendant certainly has been boisterous, disagreeable,
uncooperative and outspoken, especially in his opposition to
being represented by counsel, the Court has not observed
conduct which calls into question Defendant’s
competency, notwithstanding Defendant’s sister’s
declaration and his counsel’s representations.
Defendant’s initial appearance on February 22, 2016, he
indicated that he understood various rights afforded to him
and that Mexico was seeking his extradition on murder
charges. (ECF No. 24, at 2-3.) During his next court
appearance on February 26, 2016, he expressed his
understanding that he was waiving his right to a detention
hearing. (ECF No. 25, at 2.) At Defendant’s third court
appearance, at a status hearing on April 21, 2016, he stated
that he understood the hearing would be continued. (ECF No.
26, at 3.) It is the Court’s distinct impression, based
on its observations in court, that Defendant’s behavior
is designed to manipulate and obstruct the extradition
process rather than an exhibition of someone who is
incompetent and unable to understand the proceedings.
Court has twice attempted to conduct the Faretta
inquiry but Defendant has refused to answer the Court’s
questions. In some respects this makes the Court’s
decision easy. Regardless of whether Defendant is or is not
competent, Faretta and its progeny teach that
counsel should not be relieved unless a defendant’s
waiver of counsel is made knowingly and intelligently.
Without Defendant’s input or willingness to answer the
Court’s questions, it is impossible to determine
whether Defendant’s desire to represent himself is
validly made under current legal precedent.
Conducting Extradition Hearing With ...