William Houston v. D. Sisto, No. 08-17711 (9th Cir. 2010)

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FILED DEC 07 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT WILLIAM HOUSTON, No. 08-17711 Petitioner - Appellant, D.C. No. 2:06-cv-01980-FCDCHS v. MEMORANDUM * D. K. SISTO, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding Submitted November 29, 2010 ** San Francisco, California Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges. Habeas petitioner William Houston challenges his California state conviction of two counts of robbery. He contends that he was denied his Sixth Amendment right to self-representation. The state court of appeal s finding that * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). his request was untimely and its affirmance of the trial court s denial of the request for self-representation did not violate any clearly established Supreme Court precedent. 28 U.S.C. § 2254(d)(1). The Supreme Court in Faretta v. California, 422 U.S. 806 (1975), confirmed that the right to represent oneself is embedded in the Sixth Amendment, id. at 819, but the request for self-representation must be unequivocal and timely, id. at 835 36. A request for self-representation must not be a tactic to secure delay. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985). The record supports the state court s finding that petitioner s request was intended to cause delay. Petitioner had withdrawn his earlier request for selfrepresentation, and renewed it only on the day set for trial. See Fritz v. Spalding, 682 F.2d 782, 784 85 (9th Cir. 1982) (stating that in deciding whether a Faretta motion was made for the purpose of delay, courts must consider the events preceding the motion to determine whether defendant could reasonably be expected to have made the motion earlier). Here, petitioner could, and did, make a request earlier. The second request was appropriately viewed as a delaying tactic. AFFIRMED. 2

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