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Borhan v. Davis

United States District Court, C.D. California, Western Division

May 5, 2017

PAYMAN BORHAN, Petitioner,
RON DAVIS, Warden, Respondent.



         This Final Report and Recommendation is submitted to the Honorable Christina A. Snyder, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 01-13 of the United States District Court for the Central District of California.


         On September 22, 2006, Payman Borhan (“Petitioner”), a California state prisoner who is represented by counsel, filed a Petition for Writ of Habeas Corpus(“Petition”) pursuant to 28 U.S.C. § 2254 in the United States District Court for the Southern District of California. (Docket Entry No. 1). The Petition was subsequently transferred to this Court. (Docket Entry No. 2).

         On October 15, 2014, (following an evidentiary hearing and the consideration of various briefs filed by the parties, including Respondent's Return to the Petition (“Return”); see Docket Entry No. 174), the Court found that Petitioner was entitled to equitable tolling of the statute of limitations and that the Petition should not be dismissed as untimely filed.[1] See Amended Findings and Conclusion; Docket Entry No. 180. The Court incorporates the “proceedings” section of the Amended Findings and Conclusion, setting forth the procedural history of this action. Id.

         On November 13, 2014, Respondent filed Objections to the Amended Findings and Conclusion. (Docket Entry No. 183).

         On January 5, 2015, Petitioner filed a Reply in Support of the Amended Findings and Conclusion Granting Equitable Tolling (Docket Entry No. 187), and a Traverse. (Docket Entry No. 188).

         In the Traverse, Petitioner discussed the merits of three of the five claims alleged in the Petition and requested that the brief he had filed in support of the Petition (“Brief”) on November 13, 2006 (see Docket Entry No. 8), be deemed filed nunc pro tunc on the day the Petition was filed.[2] Alternatively, Petitioner requested that the Court grant his Motion to Amend the Petition, which had been filed on July 6, 2007 (seven months after the Court advised Petitioner about filing an amended petition), and the proposed First Amended Petition and Brief in Support of the First Amended Petition, which was also lodged on July 6, 2007 (see Docket Entry No. 23).[3] Petitioner's requests concerned his desire to pursue the claim that his trial counsel was ineffective for failing to request a lesser-included offense instruction. (See Traverse at 2-3 n.1, 7-8, 24-28).

         On January 7, 2015, the Court ordered Respondent to file a Response addressing Petitioner's requests, and noted that Respondent's Objections to the Amended Findings and Conclusion did not cause the Court to change its finding regarding Petitioner's entitlement to equitable tolling. (Docket Entry No. 189). The Court incorporates the Amended Findings and Conclusion Following Evidentiary Hearing, including former Magistrate Judge Hillman's credibility findings in this Report and Recommendation.

         On February 24, 2015, Respondent filed a Response to the Traverse. (Docket Entry No. 195).[4]

         On March 2, 2015, Petitioner filed an Application for Leave to File a Reply to the Traverse. (Docket Entry No. 197).

         On March 4, 2015, the Court granted Petitioner's Application for Leave to File a Reply to the Traverse, and ordered Petitioner to specify which new claim(s) he now wishes to pursue and the exact page and lines of the California Supreme Court pleadings on which the new claim(s) were alleged. (Docket Entry Nos. 197-198). On March 6, 2015, the Court ordered Petitioner to also address the following in his Reply to the Traverse: (1) whether the cumulative impact of counsel's deficiencies is being alleged as a stand-alone claim, and if so, the exact page and lines of the California Supreme Court pleadings on which such claim was alleged; and (2) if Petitioner is not alleging that this is a standalone claim, the authority supporting the Court's ability to address this claim. (Docket Entry No. 199).

         On March 25, 2015, Petitioner filed a Reply in Support of his Traverse (“Supporting Reply”). (Docket Entry No. 200).

         On July 13, 2015, Respondent filed a Response to the Supporting Reply. (Docket Entry No. 210).[5]

         On March 28, 2017, the Court issued a Report and Recommendation, recommending the denial of the Petition on the merits. (Docket Entry No. 14).

         On May 2, 2017, Petitioner filed Objections to the Report and Recommendation (“Objections”). (Docket Entry No. 218).

         The Court now issues this Final Report and Recommendation to address the Objections. For the reasons discussed below, it is recommended that the Petition be DENIED and that this action be DISMISSED with prejudice.


         On December 10, 2002, a Los Angeles County Superior Court jury found Petitioner guilty of two counts of committing a lewd act upon a child under the age of fourteen years in violation of California Penal Code [“P.C.”] § 288(a).[6] In addition, the jury found true the special allegations that Petitioner had committed the offenses on more than one victim at the same time and in the same course of conduct (P.C. §§ 1203.066(a)(7), 667.61(b)). (See Clerk's Transcript [“CT”] 149-53; 4 Reporter's Transcript [“RT”] 1204-06). On March 11, 2003, after denying Petitioner's motion for a new trial, the trial court sentenced Petitioner to state prison for concurrent terms of 15 years to life. (See CT 187-88, 193-94; 4 RT 1802-04, 1806-07).

         The Court incorporates the statements from the “Procedural History” section of the Amended Findings and Conclusion.[7]


         Petitioner is not challenging the sufficiency of the evidence to support his conviction. The following summary is taken from the “Factual Background” section of the California Court of Appeal's Opinion on direct appeal. (Respondent's July 24, 2007 Notice of Lodging [“July 24, 2007 Lodgment”] No. 8 at 2-6)[8]:

         A. The charged offenses

         . . . On approximately March 1, 2000, Valene L. and Gelesia M. were 10 years old. Valene and Gelesia were cousins. Defendant installed a water filtration system at Valene's father's home that day. Defendant told Valene: “You are a beautiful young lady. Would you like to be in a commercial?” Valene responded affirmatively. Defendant later came to Valene's mother's home for an interview and “audition.” Defendant demonstrated dance steps for Valene to use in the alleged commercial. After about 10 minutes, Valene's mother left to do laundry. However, Valene's 16-year-old sister, Vanessa was present. Valene's brother was also present for part of the time. At one point, defendant had Valene sit on his lap and say, “I love you, Daddy.” Defendant instructed Valene to do a “cheerleading kind of routine.” Thereafter, defendant danced with Valene. As they danced, defendant placed his leg between her legs. The top of defendant's knee touched Valene's vaginal area for approximately seven seconds. Valene believed defendant intentionally touched her. Valene became uncomfortable and scared because she knew she should not be touched there.

         Shortly thereafter, Valene saw Gelesia arrive. Valene called Gelesia into the kitchen. Defendant told Valene and Gelesia to stand straight. Defendant told the two girls they were not standing up straight. Thereafter, defendant placed his open hands, palm up underneath Valene's breasts and pushed upwards for six or seven seconds. Valene was very uncomfortable. Valene also believed defendant intentionally touched her breasts. Valene also believed defendant intentionally touched Gelesia's breasts. Defendant also placed one hand on Valene's upper breast area and his other hand on her back shoulder blade to straighten her posture. Valene testified as to what happened next, “I told him that I wanted to go and tell my mother something.” Valene then testified, “I went outside and told my mother.” Valene's mother told defendant they had to go somewhere. Thereafter, Valene's mother telephoned the police.

         Gelesia recalled being present from the beginning of Valene's audition. Valene's mother encouraged Galesia to join in the “audition.” Gelesia saw defendant touch Valene inappropriately with his leg. Gelesia also saw defendant place both of his hands underneath Valene's breasts and lift up. Defendant was smiling at the time. Gelesia thought Valene appeared uncomfortable. During the skit, defendant had Valene repeatedly say, “Oh, Daddy.” Defendant simultaneously placed his leg between Valene's legs and touched her “private parts” or vaginal area with his knee. Valene looked very uncomfortable again. Defendant also told Gelesia to stand up straight and placed his hands underneath her breasts and lifted up. Gelesia felt “very weird” and uncomfortable that someone unknown to her had touched her. Gelesia knew that what defendant was doing was wrong. Gelesia believed defendant's acts were intentional. Gelesia did not say anything because she was scared and nervous.

         Vanessa L. is Valene's sister. Vanessa saw defendant place his hand underneath Valene's breast for approximately five seconds. Defendant looked happy at the time. Vanessa also saw defendant place his leg between Valene's legs. It appeared to Vanessa that defendant's knee area touched Valene's private area for five or six seconds. Valene looked very serious and uncomfortable. Vanessa was not present during the entire time defendant was auditioning her sister.

         Jose Gonzalez was the president of Continental Water Softener Company in March 2000. Defendant was a subcontractor for Mr. Gonzalez's company at that time selling water purification systems. The company was not in the process of making any commercials or advertisements at that time.

         Defendant was not authorized to audition anyone for commercials or modeling advertisements.

         B. The uncharged crimes

         In July 1998, Cynthia T. was 23 years old. Defendant drove by Ms. T's home. Defendant told her he was a talent scout for the Ford Modeling Agency looking for models for commercials. Defendant gave Ms. T. his business card. Defendant later auditioned Ms. T. at her home. Defendant showed Ms. T. a portfolio of photos of different “girls” with whom he worked. Defendant had Ms. T. read a few lines and walk back and forth. Defendant got behind her. Defendant moved his hands up and down Ms. T.'s body and instructed her how to move. Defendant cupped Ms. T.'s breasts then moved his hands up and down her chest and waist area. Ms. T. was uncomfortable. Defendant also touched Ms. T.'s breast as he ostensibly tried to straighten her posture. Later, defendant had Ms. T. do a love scene where she was to kiss him. Defendant repeatedly told Ms. T. to kiss him. Defendant kissed Ms. T. and placed his tongue in her mouth. Ms. T. backed off in surprise. Ms. T.'s mother entered the room. Ms. T.'s mother screamed at defendant and told him to leave.

         In August 1998, Song L. was approached by defendant as he drove in her neighborhood. Defendant stopped Ms. L. as she was on the sidewalk. Defendant said he owned a water business and was looking for actresses for a commercial. Ms. L. was 21 years old. Defendant went to Ms. L.'s apartment to audition her. Defendant told her he was going to do a dance routine with her because that would be used in a commercial for a water company. After a few dance spins and dips, defendant stood behind Ms. L. and placed one hand over her chest and inside her bra. Defendant placed his other hand on her groin area. When Ms. L. asked what he was doing, defendant responded: “Oh, it's okay. It's okay.” Ms. L. managed to free herself from that position. Ms. L. told defendant she no longer wanted to participate in the “audition.” Ms. L. believed defendant grabbed her breast intentionally as he restrained her. Defendant had also asked her to rehearse kissing him. Ms. L. did not want to do so. Ms. L. also believed defendant intentionally pressed down hard on her pubic area. Defendant had also attempted to straighten Ms. L.'s posture.

         Also during August 1998, defendant went to the home of Brenda C. for an audition for commercials. Ms. C. met defendant through her sister, whom he had initially approached. Ms. C.'s parents were present when defendant arrived at 9 p.m. Following instructions, defendant asked Ms. C.'s parents to leave the room so they would not influence the audition. Defendant had a photo portfolio with pictures of other young women. Defendant showed Ms. C. how to walk and stand up straight by using his hand behind her back. Defendant used his other hand to lift her breast. Defendant lifted her breast up several times. Initially, Ms. C. did not feel anything was “weird.” Defendant also showed Ms. C. how to tango. As he held her back he placed his leg between her legs. At another time during the dancing, defendant's hand slipped into her shirt under her bra. Defendant's hand touched Ms. C.'s right breast. Ms. C. felt uncomfortable but thought it was “procedure.” Ms. C. believed defendant intentionally put his hand under her bra and grabbed her. Ms. C. pushed defendant away. Defendant then had Ms. C. to act excited about having won a car, run up to him, and then hug him. After repeating that several times, defendant told Ms. C. to tell him how much she loved him and hold his face next to hers. When Ms. C. did so, he grabbed her face and stuck his tongue in her mouth. Ms. C. was “disgusted” and pushed him away. When Ms. C. refused to repeat that “move, ” defendant told her she had passed the audition.


         Petitioner raises the following claims for federal habeas relief:

Ground One: The trial court's denial of Petitioner's motion for a continuance to retain counsel and motion for substitute retained counsel violated Petitioner's Sixth Amendment rights. (Petition at 5; Traverse at 32-38).
Ground Two: The trial court's admission of propensity evidence under California Evidence Code § 1108 violated Petitioner's rights to due process and a fair trial. (Petition at 5).
Ground Three: Petitioner received ineffective assistance of counsel based on (A) his trial counsel's failure to interview and/or call witnesses; and (B) his trial counsel's advising Petitioner not to testify. (Petition at 6; Traverse at 4-24).[9]
Ground Four: The trial court's failure to sua sponte instruct the jury on the lesser-included offense of annoying or molesting a child violated Petitioner's rights to due process and a fair trial. (Petition at 6).
Ground Five: Petitioner's sentence constituted cruel and unusual punishment under the Eighth Amendment. (Petition at 6; Traverse at 38-42).


         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a federal court may not grant habeas relief on a claim adjudicated on its merits in state court unless that adjudication “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 “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.” 28 U.S.C. § 2254(d). “This is a ‘difficult to meet' and ‘highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt[.]'” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations omitted).

         The term “clearly established Federal law” means “the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); see also Cullen v. Pinholster, 563 U.S. at 182; Williams v. Taylor, 529 U.S. 362, 412 (2000)(“clearly established Federal law” consists of holdings, not dicta, of Supreme Court decisions “as of the time of the relevant state-court decision”). However, federal circuit law may still be persuasive authority in identifying “clearly established” Supreme Court law or in deciding when a state court unreasonably applied Supreme Court law. See Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011); Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir. 2000).

         A state court decision is “contrary to” clearly established federal law if the decision applies a rule that contradicts the governing Supreme Court law or reaches a result that differs from a result the Supreme Court reached on “materially indistinguishable” facts. Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam); Williams, 529 U.S. at 405-06; see also Cullen v. Pinholster, supra (“To determine whether a particular decision is ‘contrary to' then-established law, a federal court must consider whether the decision ‘applies a rule that contradicts [such] law' and how the decision ‘confronts [the] set of facts' that were before the state court.”). When a state court decision adjudicating a claim is contrary to controlling Supreme Court law, the reviewing federal habeas court is “unconstrained by § 2254(d)(1).” Williams, 529 U.S. at 406. However, the state court need not cite the controlling Supreme Court cases, “so long as neither the reasoning nor the result of the state-court decision contradicts them.” Early, supra.

         A state court decision involves an “unreasonable application” of clearly established federal law “if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.” Williams, 529 U.S. at 407; Cullen v. Pinholster, supra; Woodford v. Visciotti, 537 U.S. 19, 24-27 (2002)(per curiam); Moore v. Helling, 763 F.3d 1011, 1016 (9th Cir. 2014)(courts may extend Supreme Court rulings to new sets of facts on habeas review “only if it is ‘beyond doubt' that the ruling apply to the new situation or set of facts.”), cert. denied, 135 S.Ct. 2361 (2015). A federal habeas court may not overrule a state court decision based on the federal court's independent determination that the state court's application of governing law was incorrect, erroneous or even “clear error.” Lockyer, 538 U.S. at 75; Harrington v. Richter, 562 U.S. 86, 101 (2011)(“A state court's determination that a claim lacks merit precludes federal relief so long as ‘fairminded jurists could disagree' on the correctness of the state court's decision.”). Rather, a decision may be rejected only if the state court's application of Supreme Court law was “objectively unreasonable.” Lockyer, supra; Woodford, supra; Williams, 529 U.S. at 409; see also Taylor v. Maddox, 366 F.3d 992, 999-1000 (9th Cir. 2004)(“objectively unreasonable” standard also applies to state court factual determinations).

         When a state court decision is found to be contrary to or an unreasonable application of clearly established Supreme Court law, a federal habeas court “must then resolve the [constitutional] claim without the deference AEDPA otherwise requires.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). In other words, if a § 2254(d)(1) error occurs, the constitutional claim raised must be considered de novo. Frantz v. Hazey, 513 F.3d 1002, 1012-15 (9th Cir. 2008); see also Rompilla v. Beard, 545 U.S. 374, 390 (2005). De Novo review is also required when a claim is rejected by the state court on procedural rather than substantive grounds, see Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002), and when it is clear that the state court has not decided an issue. Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006).

         When the state court has not provided a reasoned explanation for its denial of the Petitioner's claims, a federal court has no basis other than the record for knowing whether the state court correctly identified the governing legal principle or was extending the principle into a new context. See Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). Thus, “[f]ederal habeas review is not de novo when the state court does not supply reasoning for its decision, but an independent review of the record is required to determine whether the state court clearly erred in its application of controlling federal law. . . . Only by that examination may we determine whether the state court's decision was objectively reasonable.” Id. at 982.

         Petitioner raised the claims raised in Ground One, Ground Two, and Ground Five in his October 7, 2004 habeas petition to the California Supreme Court (Case No. S128321) (see July 24, 2007 Lodgment No. 15), and Ground Three (A) and (B) in his July 19, 2004 habeas petition to the California Supreme Court (Case No. S126391) (see July 24, 2007 Lodgment No. 13), which denied these claims without citation to authority on June 8, 2005 (see July 24, 2007 Lodgment Nos. 14, 16). The Court “looks through” the California Supreme Court's silent denial to the last reasoned decision as the basis for the state court's judgment. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) (“Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”); Cannedy v. Adams, 706 F.3d 1148, 1159 (9th Cir. 2013) (“[W]e conclude that Richter does not change our practice of ‘looking through' summary denials to the last reasoned decision - whether those denials are on the merits or denials of discretionary review.”; footnote omitted), as amended, 733 F.3d 794 (9th Cir. 2013). Therefore, in addressing Grounds One, Two and Three (A) and (B), the Court will consider the California Court of Appeal's reasoned opinion on direct appeal (see Lodgment No. 8). See Berghuis v. Thompkins, 560 U.S. 370, 380 (2010).

         The California Court of Appeal denied Ground Two on procedural grounds. (See July 24, 2007 Lodgment No. 8). Petitioner raised the claims in Ground Three (C) and Ground Four in his July 9, 2007 habeas petition to the California Supreme Court (Case No. 154266) (see July 24, 2007 Lodgment Nos. 23-24), which, on January 3, 2008, denied the claims with citations to In re Robbins, 18 Cal.4th 770, 780 (1998) and In re Clark, 5 Cal.4th 750, 767-69 (1993) (see Respondent's September 24, 2014 Lodgment No. 5). Accordingly, the Court will conduct a de novo review of Grounds Two and Four and also determine, alternatively, whether Grounds Two and Four are procedurally defaulted.

         However, since no state court has provided a reasoned opinion addressing the merits of Ground Three (C) and Ground Five, this Court must conduct “an independent review of the record” to determine whether the California Supreme Court's ultimate decision to deny these claims was contrary to, or an unreasonable application of, clearly established federal law. See Murray v. Schriro, 745 F.3d 984, 996-97 (9th Cir. 2014); Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013).


         A. Denials of Motion for a Continuance to Retain Counsel and Motion for Substitute Counsel

         In Ground One, Petitioner contends that the trial court denied his motion for a continuance to retain counsel and his motion for substitute counsel in violation of his Sixth Amendment rights. (Petition at 5; Traverse at 32-38).

         1. The Record Below

         At the conclusion of the preliminary hearing on August 12, 2002, Petitioner's retained counsel made a request to be relieved. When the court asked whether counsel was retained for purposes of the preliminary hearing only, counsel responded that he was retained by the family, and that all he could say due to attorney-client privilege was that he needed to be relieved as a result of some conflict. The court denied counsel's request to be relieved without prejudice, based on Petitioner's failure to specify the nature of the conflict. (See CT 3-77).

         On August 26, 2002 (the date on which the arraignment was scheduled), a deputy public defender was appointed to represent Petitioner. At that hearing, Petitioner waived time for trial and arraignment. (See CT 83).

         At the arraignment on September 4, 2002, Petitioner was represented by Deputy Public Defender Kenneth Wenzl. Jury trial was scheduled for October 21, 2002. (See CT 84).

         At a readiness hearing on October 17, 2002, Petitioner was represented by Mr. Wenzl. Jury trial was continued to November 19, 2002. (See CT 85).

         At another readiness hearing on November 15, 2002, Petitioner was represented by Mr. Wenzl. Petitioner failed to appear, but he had a sufficient excuse. The jury trial remained scheduled for November 19, 2002. (See CT 86).

         On November 19, 2002, Petitioner was present “in lock up” and represented by Mr. Wenzl. Jury trial was trailed to November 26, 2002. (See CT 87).

         On November 26, 2002, Petitioner was present “in lock up” and represented by Mr. Wenzl. Pursuant to a defense motion, jury trial was trailed to December 3, 2002. (See CT 88).

         On December 3, 2002, Petitioner was present “in lock up” and represented by Mr. Wenzl. Jury trial was trailed to December 4, 2002. (See CT 89).

         On December 4, 2002, Petitioner was present “in lock up” and represented by Mr. Wenzl. The matter was transferred to Division 7 for a jury trial. (See CT 90).

         That afternoon, the case was called for a jury trial. In Petitioner's presence, a panel of prospective jurors were given a perjury admonishment. Immediately thereafter, Petitioner stated he needed to speak to the trial court. The trial court told Petitioner, “We'll get to that, ” and continued to address the prospective jurors about procedures. Petitioner interrupted the trial court, stating, “My family's bringing a private lawyer. I really do not wish to go to the trial.” The trial court responded, “This case is going to be tried in this courtroom and tried today.” Petitioner again spoke out: “Excuse me. It has -- it has not been communicated -- [¶] [¶] He has not seen me since yesterday. My public defender has not come to see me sir. I have been wanting to talk to him since yesterday that I don't want to go through to trial because last night -- night -- I talked [to] my family. My mother of my daughter from Mexico called, and she's bringing -[.]” The trial court appeared to interrupt, stating, “Sir, we're going to try this lawsuit in this courtroom. Today. And I don't want you to say another word now while the jurors are in the courtroom. Not one more word.” Because Petitioner continued to interrupt, the trial court asked the prospective jurors to leave the courtroom. (See CT 91; 2 RT 2-3).

         Out of the prospective jurors' presence, the trial court advised Petitioner that the trial would go forward. The trial court then stated: “You happen to be represented by one of the best public defenders in our district who's been in my court for years numerous times, and I'm not going to accept any comments from you on the date of trial about the ineffective assistance of your lawyer.” The trial court continued: “[Y]ou are telling me today that on the day of trial, the last day of trial, that you've got somebody that's ostensibly bringing in another attorney to represent you. It's not accepted by me. This matter came from another department. It -- it was answered ready. It's going to be tried.” The trial court admonished Petitioner not to speak out when court was in session, and that any further misbehavior by Petitioner would result in his removal from the courtroom. The trial court stated, “I'm not going to hear anything else about continuance of this trial on this.” (See 2 RT 3-4).

         When Petitioner was given the opportunity to speak, he mentioned a past manic-depression diagnosis and two past felony convictions (which he stated could have been two misdemeanor convictions, but for his refusal to agree to the plea because of his mental condition), and stated, “Yesterday, okay, Mr. Wenzl came and brought me the -- . . . I had not seen Mr. Wenzl since about two months, or two months ago.” After mentioning that he had received psychiatric treatment and medication following an attempted suicide, Petitioner stated, “So yesterday I see Mr. Wenzl after two months, and he comes and he say, oh, we finally got the doctor report; and doctor suggests . . . send[ing] you to a [psychiatric] program. . . . We are going to get you to a program.” Petitioner stated that Mr. Wenzl told him that it would take perhaps one year to get Petitioner into a program and that he would talk to the deputy district attorney about it. However, when Mr. Wenzl spoke to the deputy district attorney about the program, he was told that Petitioner would have to face a trial because of his two prior felony convictions. After Petitioner stated that there was a conflict of interest between himself and Mr. Wenzl, the trial court asked the prosecutor to leave the courtroom in order to conduct a Marsden[10]hearing. (See 2 RT 4-7).

         At the hearing, Petitioner claimed there was a conflict of interest for the following reasons: (1) he had asked Mr. Wenzl to interview four people, but Mr. Wenzl had only interviewed one person (who did not provide the answers Petitioner was looking for); (2) he wanted Mr. Wenzl to have a psychiatrist testify at trial but Mr. Wenzl did not want this since it would not help Petitioner's case; and (3) Petitioner wanted Mr. Wenzl to bring a “95” motion for dismissal or reduction and Mr. Wenzl refused to do so. Petitioner moved for the appointment of another public defender and, alternatively, for permission to ...

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