Unpublished Disposition, 900 F.2d 262 (9th Cir. 1986)

MEMORANDUM^** 

Stanley Robert DeSisto appeals the district court's order denying his petition for writ of habeas corpus. DeSisto alleges in his habeas petition that he was denied his sixth amendment right to represent himself. He also contends that the district court erred by denying his motion for an evidentiary hearing. We hold that (1) the district court did not err in finding that DeSisto did not unequivocally request to represent himself, and (2) the district court did not err by denying DeSisto's motion for an evidentiary hearing. We, therefore, affirm the district court's denial of DeSisto's habeas petition.

STANDARD OF REVIEW

A district court's decision whether to grant or deny a petition for habeas corpus is reviewed de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989); Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989).

DISCUSSION

I. The District Court Did Not Err in Determining that DeSisto Did Not Make an Unequivocal Request to Represent Himself

DeSisto contends that he made a request to represent himself and that he was denied an opportunity to do so in violation of his sixth amendment right to self-representation. We recently reiterated the rule that, in order to assert his or her right to self-representation, a defendant must make an unequivocal request to proceed without counsel. Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989); see also Meeks v. Craven, 482 F.2d 465, 467 (9th Cir. 1973).

DeSisto has offered only one statement, made at a sentencing hearing following his January 7, 1986 jury trial, as evidence that he asserted his right to represent himself. That statement is: "I felt intimidated that I couldn't represent myself." This, without more, cannot be construed as an unequivocal request by DeSisto to represent himself. Arguably, in fact, the statement suggests that DeSisto did not want to represent himself. That this statement was a request by DeSisto to represent himself appears especially unlikely in light of the fact that he was represented by privately retained counsel during the January 7, 1986 jury trial and the sentencing hearing that followed; this was not a case in which court-appointed counsel was being forced upon the defendant. The district court correctly found that DeSisto did not unequivocally request self-representation.¹ 

II. The District Court Did Not Err in Denying DeSisto's Motion for an Evidentiary Hearing

The decision whether to hold an evidentiary hearing is within the discretion of the district court. 28 U.S.C. § 2254(d); Rule 8(a) fol. Sec. 2254. Whether a district court is required to hold an evidentiary hearing is governed by Townsend v. Sain, 372 U.S. 293 (1963). See Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir. 1986). As we explained in Van Pilon, Townsend provides:

In habeas proceedings under 28 U.S.C. § 2254, an evidentiary hearing is required when: (1) the petitioner's allegations, if proved, would establish the right to relief (prima facie case); and (2) the state court trier of fact has not, after a full and fair hearing, reliably found that the relevant facts. Van Pilon, 799 F.2d at 1338 (citing Townsend, 372 U.S. at 213-13 and Bashor v. Risley, 730 F.2d 1228, 1233 (9th Cir.), cert. denied, 469 U.S. 838 (1984)).

DeSisto contends that the district court erred in denying his motion for an evidentiary hearing. He argues that the material facts were not adequately developed because no evidentiary hearing was held in the state court, and that, therefore, the federal court is required to hold an evidentiary hearing. It is not enough to show that no evidentiary hearing was held in the state proceedings; DeSisto must show that an evidentiary hearing was necessary to resolve a material issue of fact. He must meet the requirements of the threshold question in the Townsend analysis by showing that there are facts in dispute which if proved would entitle him to relief.

DeSisto argues that an evidentiary hearing is required to determine the meaning of the statement he made at the sentencing hearing following his January 7, 1986 jury trial: "I felt intimidated that I couldn't represent myself." He also argues that an evidentiary hearing is required to determine whether he wished to represent himself and whether he mistakenly believed that he could not do so. DeSisto contends that proof of these facts would entitle him to relief.

The district court correctly denied DeSisto's motion for an evidentiary hearing. DeSisto failed to establish a prima facie case, as required by the first step of the Townsend analysis, because the factual allegations DeSisto makes would not entitle him to relief. The sentencing hearing statement was, as the district court noted, the only statement alleged to be a request for self-representation, and must speak for itself. Either that statement was an unequivocal request or it was not an unequivocal request. The district court correctly found that it was not. Explanation of DeSisto's meaning or intent in retrospect is not relevant and, in fact, the need for a hearing to determine what DeSisto meant suggests that his statement was equivocal.

III. The Duty of the Trial Court to Advise Defendant of the Right to Self-Representation

DeSisto finally argues that the trial court had an affirmative duty to advise him of his right to self-representation. No federal court thus far has held that a defendant must be advised of his or her right to self-representation. The Supreme Court has held that federal courts may not announce or apply a new rule of federal constitutional law in habeas proceedings unless the new rule falls under one of two exceptions, neither of which is applicable here. See Saffle v. Parks, --- U.S. ----, 110 S. Ct. 1257 (1990); Butler v. McKellar, --- U.S. ----, 110 S. Ct. 1212 (1990); Teague v. Lane, 489 U.S. ----, 109 S. Ct. 1060 (1989). We, therefore, cannot reach this issue.

The district court is AFFIRMED.