Unpublished Disposition, 875 F.2d 870 (9th Cir. 1981)

MEMORANDUM^* 

Warden Vasquez appeals the grant of a writ of habeas corpus. We affirm.

On April 28, 1981, the scheduled date of his murder trial, Martin informed the court that he was displeased with the representation provided by counsel. Appellee asserted that he had just learned that counsel had failed to subpoena two crucial defense witnesses. Martin then claimed his Faretta right to self-representation. The trial court denied him that right, ruling that the motion was untimely. The court also found that "Martin was not prepared to go to trial that day." Memo. dispo. at 2. The court ordered the case to trial defense counsel's other case, and the trial commenced seven days later.

Martin sought a writ of habeas corpus in federal court. The district court issued the writ, and the government appealed. In an unpublished memorandum, we held that Martin's request to represent himself was not made for the purpose of delay and was timely as a matter of law. We affirmed the determination of Faretta error. However, we remanded the case to the district court to determine whether the trial court had abused its discretion in denying Martin's implicit motion for a continuance. On remand, both sides declined to introduce any further evidence. The district court, adopting the findings and recommendations of the magistrate, held that the trial court had abused its discretion, and the government appealed for the second time.

In considering the denial of a motion for a continuance, we look to four factors: the degree of diligence shown by the defendant; the usefulness of the continuance to the defendant; inconvenience to the court, witnesses, and parties; and prejudice to the defendant. Armant v. Marquez, 772 F.2d 552, 556-57 (9th Cir. 1985), cert. denied, 106 S. Ct. 1502 (1986).

We agree with the district court that the factors in this case required a continuance. First, as evidenced by the fact that the case did not start for seven more days, it is apparent that there would have been no substantial inconvenience to the court or to the government as a result of affording the defendant a reasonable delay. Second, on the record before us (and bearing in mind that it is uncontested that no improper purpose underlay appellee's request), appellee exercised reasonable diligence in requesting the right to self-representation. Concededly, the source of his discontent with counsel did not arise until the day of trial. Third, the continuance would have been useful since it would have permitted Martin to obtain the case file (which was not even in court on the day of trial) and prepare his defense. As noted earlier, we have previously concluded that Martin was not prepared to go to trial on the day in question. Finally, the defendant was prejudiced since the failure to grant a continuance effectively deprived him of the opportunity to exercise his requested constitutional right to self-representation. Id. at 557. In Armant, we strongly indicated that this was sufficient. Id. Moreover, Martin alleges that granting the continuance would have enabled him to present two witnesses at trial who might have substantially aided his defense. The government failed to seek an evidentiary hearing at which it could challenge any of appellee's claims. In light of all of the above, we agree with both the district court and the magistrate that the trial court abused its discretion in denying the continuance.

The grant of the writ of habeas corpus is

AFFIRMED.