Michael John Rea v. E Valenzuela, No. 2:2012cv09044 - Document 18 (C.D. Cal. 2013)
Court Description: MEMORANDUM AND ORDER DENYING HABEAS PETITION by Magistrate Judge Ralph Zarefsk. (ib)
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Michael John Rea v. E Valenzuela Doc. 18 O 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MICHAEL JOHN REA, Petitioner, 12 13 vs. 14 E. VALENZUELA, WARDEN, 15 Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. CV 12-09044 RZ MEMORANDUM AND ORDER DENYING HABEAS PETITION 16 17 The parties have stipulated that the undersigned Magistrate Judge may decide 18 this Petition for Writ of Habeas Corpus. See 28 U.S.C. § 636(c). For the following 19 reasons, the Court will deny the petition and dismiss the action with prejudice. 20 21 I. 22 BACKGROUND AND CLAIMS PRESENTED 23 After a bench trial in Santa Barbara County Superior Court, Petitioner Michael 24 John Rea was convicted of battery on a peace officer, trafficking in methamphetamine and 25 numerous other crimes. See Lodgment 6 at 1-2. The California Court of Appeal affirmed 26 in all respects pertinent here, see id., and the California Supreme Court denied further 27 direct review. Pet. ¶ 4. Having withdrawn the second of the two claims he initially 28 presented, Petitioner now asserts only the following claim: Dockets.Justia.com 1 The trial court, having earlier granted Petitioner’s Faretta waiver of his right 2 to be represented by counsel, erred in denying Petitioner’s motion two days 3 before trial to revoke his self-represented status. In the alternative, Petitioner 4 argues, the court erred in denying him a continuance for trial preparation 5 in pro per. 6 7 II. 8 STANDARD OF REVIEW 9 The Court assesses the Petition under the Anti-Terrorism and Effective Death 10 Penalty Act (“AEDPA”). See 28 U.S.C. § 2254(d). To resolve Petitioner’s claim, the 11 Court will examine the decision of the California Court of Appeal rejecting it on direct 12 review, rather than the California Supreme Court’s subsequent “silent” denial of further 13 direct review. This is because “where there has been one reasoned state court judgment 14 rejecting a federal claim, [federal habeas courts should presume that] later unexplained 15 orders upholding that judgment or rejecting the same claim rest upon the same ground.” 16 Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590, 115 L. Ed. 2d 706 (1991). 17 18 III. 19 THE CRIMES 20 In affirming, the California Court of Appeal summarized the underlying 21 factual findings. Petitioner has failed to rebut these findings with clear and convincing 22 evidence. The findings therefore are presumed to be correct. 28 U.S.C. § 2254(e)(1); 23 Bragg v. Galaza, 242 F.3d 1082, 1087 (9th Cir. 2001) (presumption applies to findings of 24 state appellate courts as well as trial courts). That summary is as follows: 25 26 March 2010 Offenses 27 On March 27, 2010, in the early afternoon, Santa Barbara Deputy 28 Sheriff Charles Anderson was in uniform, driving a marked patrol car through -2- 1 Los Olivos. He noticed appellant driving without a front license plate and 2 stopped his car. Appellant spoke very rapidly, his hands were shaking, and 3 he was fidgety. Anderson returned to the patrol car to check the Department 4 of Motor Vehicles records, and noticed appellant shifting around in his seat. 5 Anderson returned to appellant’s car, and asked him to remove his 6 sunglasses, tilt his head back, and close his eyes. He complied. Anderson 7 noticed that appellant had an “extreme amount of eyelid tremors,” and might 8 be under the influence of methamphetamine. Appellant said he had smoked 9 marijuana several hours earlier. 10 Anderson returned to the patrol car, called and waited for back-up. At 11 about 1:45 p.m., Santa Barbara Deputy Sheriff Robert Samaniego arrived, and 12 Anderson asked appellant to step out of his car. He initially refused but 13 complied. While taking him to a shady spot for field sobriety testing, 14 Anderson noticed a crumbly, green substance that looked like marijuana on 15 the front of appellant’s shirt. During the sobriety testing, appellant had a very 16 high pulse rate. Anderson concluded that he was under the influence of 17 methamphetamine and marijuana, and told appellant he was arresting him. 18 As he tried to handcuff him, appellant’s fist or elbow struck Anderson’s 19 forehead, above his right eye. 20 Samaniego testified that appellant spun around when Anderson tried to 21 arrest him. When Samaniego tried to assist, all three men fell to the ground, 22 where appellant continued struggling and resisting. The deputies struggled 23 with him for approximately four to six minutes before they could restrain him. 24 During that time, they instructed him to give them his hands. Appellant said, 25 “No,” and managed to stand. After trying twice without success to restrain 26 appellant with a taser, Samaniego struck him once on his left thigh with a 27 baton. Using the taser, Samaniego managed to get appellant to the ground, 28 where he and Anderson handcuffed him. -3- 1 Two bystanders, Joseph Hoage and Sandra Clary, observed the struggle 2 and testified at trial. Hoage recalled that just after Anderson asked him to 3 place his right hand behind his back, appellant punched Anderson in the head. 4 Anderson looked dazed. When Samaniego rushed over to help, Hoage said 5 that a “full on brawl” broke out with appellant “100 percent resisting” because 6 he did not want to be handcuffed. Hoage saw appellant fight with the 7 deputies and ignore their orders. Clary testified that appellant failed to 8 comply with the deputies’ verbal orders and struggled with them. 9 After handcuffing appellant, Samaniego and other deputies searched his 10 car. They recovered 2.41 grams of methamphetamine, some marijuana, 11 plastic baggies, two digital scales, a book about marijuana cultivation, two 12 cell phones, a pipe for smoking methamphetamine, and cigarette rolling 13 paper. The seized methamphetamine would provide 24 usable doses with a 14 total value of about $240. 15 Based upon the quantity of methamphetamine, the presence of scales 16 and baggies, and the contents of some text messages on the cell phones, Santa 17 Barbara Deputy Sheriff Neil Gowing, a member of the narcotics unit, opined 18 that appellant possessed the methamphetamine and the marijuana for purposes 19 of sale. 20 Samaniego sustained bruises on his knees and right hands from 21 struggling with appellant. Anderson suffered more serious injuries. He 22 traveled from the scene of the incident to the hospital, by ambulance, and was 23 discharged that evening. The initial blow to his forehead “dazed” him, made 24 him “black out” and caused a concussion, with extreme swelling and 25 vomiting. The day after the incident, his entire body was extremely sore, with 26 multiple cuts and abrasions. The concussion affected his memory of the 27 incident. His knees remained sore for about three months. At the time of 28 -4- 1 trial, over eight months after the incident, he still had some swelling and 2 numbness around his right eye. 3 Prior Resisting Arrest Incident 4 5 Grover Beach Police Sergeant Jerry Cornwell testified that on 6 Christmas Day in 2008, he and two other uniformed officers spoke with 7 appellant outside his front door. An officer advised him that they were 8 arresting him and directed him to turn around and place his hands behind his 9 back. Appellant failed to comply and moved toward his house. The three 10 officers grabbed him and took him to the ground, where appellant physically 11 resisted and failed to comply with the officers’ repeated orders to put his 12 hands behind his back. 13 Defense Evidence 14 15 Appellant testified that he was surprised when Anderson tried to 16 handcuff him on March 27, 2010. He did not intend to attack anyone that 17 day. He was “high on meth and on marijuana” at the time of the incident, and 18 did not remember what happened after Anderson first grabbed him. He did 19 remember pulling away from Anderson. Appellant admitted that he resisted 20 Grover Beach Sergeant Cornell during a 2008 incident. 21 Defense investigator Ron Rose testified that he formerly worked as a 22 police officer. He explained that a person typically draws inward when 23 reacting to a surprise. Rose believed that appellant resisted arrest but 24 questioned whether he intended to hurt Anderson. 25 26 Lodgment 6 at 2-5. 27 28 -5- 1 IV. 2 CLAIM 1: DENIAL OF MOTION TO REVOKE FARETTA WAIVER (AND 3 DENIAL OF CONTINUANCE TO PREPARE FOR TRIAL IN PRO PER) 4 Petitioner claims that the trial court erred in denying his motion to revoke his 5 waiver of counsel. In the alternative, Petitioner argues that the trial court erred in refusing 6 his request for a continuance to prepare for trial in pro per. 7 8 A. Applicable Law 9 Although the Sixth Amendment guarantees a criminal defendant the right to 10 an attorney at all critical stages of his prosecution, see Gideon v. Wainwright, 372 U.S. 335, 11 344, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), a criminal defendant may voluntarily and 12 intelligently waive that right and proceed as his own counsel. Faretta v. California, 422 13 U.S. 806, 807, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). The Supreme Court has never 14 decided “whether and under what circumstances a defendant who validly waives his right 15 to counsel has a Sixth Amendment right to reassert it later in the same stage of the criminal 16 trial.” John-Charles v. California, 646 F.3d 1243, 1249 (9th Cir. 2011). Faretta itself, the 17 Ninth Circuit explained in John-Charles, 18 19 thus is not “clearly established” Supreme Court precedent for purposes of 20 [petitioner’s] claim that he is constitutionally entitled to the reappointment of 21 counsel. 22 23 Id. This lack of Supreme Court precedent may alone require the denial of this claim, for 24 how can the state courts violate, or unreasonably apply, a precedent that does not exist? See 25 28 U.S.C. § 2254(d); Knowles v. Mirzayance, __ U.S. __, 129 S. Ct. 1411, 1419, 173 L. Ed. 26 2d 251 (2009) (“[T]his Court has held on numerous occasions that it is not an unreasonable 27 application of clearly established Federal law for a state court to decline to apply a specific 28 legal rule that has not been squarely established by this Court.”) (quotation omitted). -6- But the same Ninth Circuit panel in John-Charles held that the lack of a 1 2 specific Supreme Court precedent for reappointment of counsel did not end its analysis. 3 4 Notwithstanding the Supreme Court’s silence on the specific issue at 5 hand, we must also consider whether a state court’s denial of a request for 6 reappointment of counsel after a Faretta waiver constitutes an unreasonable 7 application of the general principles enunciated in Gideon and Faretta. . . . 8 [E]ven a general standard “may be applied in an unreasonable manner[,] . . . 9 [but] the more general the rule being considered, the more leeway courts have 10 in reaching outcomes in case-by-case determinations. 11 12 646 F.3d at 1249 (internal quotation marks and citations omitted). 13 14 B. State Courts’ Opinion 15 The California Court of Appeal explained this claim, and the reasons for its 16 rejection, in the following portion of its opinion. The excerpt is lengthy due to the need for 17 extensive procedural background for the trial court’s decision to reject reappointment of 18 counsel and a continuance in this particular case. 19 Procedural Background 20 21 On May 24, 2010, appellant filed a motion to substitute his appointed 22 counsel under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), before the 23 preliminary hearing. The court denied his motion after conducting a Marsden 24 hearing. 25 26 On September 20, 2010, appellant pled not guilty. The court set November 9, 2010 as the trial date. 27 28 -7- 1 On November 1, 2010, eight days before the scheduled trial date, 2 appellant moved to represent himself pursuant to Faretta. He withdrew the 3 motion on the following day. 4 On November 2, 2010, the trial court heard a defense continuance 5 request. After initially opposing the continuance, the prosecutor agreed to 6 continue the trial to November 30, 2010. 7 November 2, the court reiterated that the case was set for jury trial on 8 November 30, and admonished the parties to “[p]lan to start the jury trial at 9 9:30.” Just before adjourning on 10 On November 12, 2010, appellant filed a hand-written Marsden 11 motion. He also submitted a signed, completed form waiver of his right to 12 counsel and election to act without a lawyer. 13 On November 15, 2010, the trial court conducted in-camera 14 proceedings, and denied appellant’s Marsden motion. It also considered his 15 request to represent himself pursuant to Faretta. The court discussed the 16 Faretta waiver form with him, and admonished him that he would be required 17 to prepare his defense, do his own research, and conduct his own 18 investigation, without the advice of a lawyer. Appellant informed the court 19 that the only things he had yet to do were to “talk to the witnesses,” obtain 20 some reports in possession of his counsel and view the COBAN.FN3 Defense 21 counsel then stated that “if there [were] police reports [appellant did] not have 22 yet,” he would make attempts to get them that afternoon, or have them 23 “delivered to the jail” the next day. 24 FN3. COBAN is an audio and visual system that automatically 25 records events occurring when the patrol vehicle lights are activated. 26 An officer can manually turn on the COBAN system. 27 28 -8- 1 The trial court then admonished appellant that he “would be forced to 2 be ready for trial on the 30th without really any more resources than [he had] 3 at present except for the opportunity to present [his] own case.” Counsel 4 inquired whether the court would appoint an investigator to assist appellant 5 despite the short notice. The court responded, “Well, we would attempt to do 6 that, but there are time constraints here, including the Thanksgiving holiday. 7 The only basis on which this motion would be granted is Mr. Rea’s 8 understanding that he is going to have to run – assume the responsibility for 9 the trial at this point with whatever services we can provide to assist him. [¶] 10 If you’re saying you cannot be ready for trial without having an investigator 11 appointed for you to do additional discovery, then I think what you’re telling 12 me then is the motion is not timely.” Appellant then stated, “I didn’t say that. 13 My lawyer did. [¶] There’s 10 maybe or so working days between now and 14 then. Even if I filed the motion right now, we would be hearing that motion 15 on the same day set for trial. I think I’ve been forced into this trial date. The 16 suppression hearing was stretched out over 26 days it looks like or more [sic] 17 or so, and the whole time that I was under the understanding that I was going 18 to be able to file the writ of mandate. I think that forcing me into a trial right 19 now is partial and not fair. [¶] As I understand it’s – the DA wants to move 20 forward with that. I would just say that underlines the unfairness and 21 basically what I’m trying to get through, the whole point. [¶] The court 22 responded, “Well, what I hear you saying is . . . you are not prepared to go to 23 trial. You don’t –” [¶] Appellant interjected, “Well, I have motions that I’m 24 prepared to file right now today. If they would interfere with the date of the 25 30th which we – that’s what – there ain’t going to be a jury sworn in on that 26 day, is there?” [¶] The court replied, “That’s the hope we would begin the 27 jury selection process on the 30th.” [¶] Appellant then stated, “It’s the 28 beginning. I mean it’s not like the witnesses have to be there on the 30th then -9- 1 to help me swear in a jury and pick a jury. And I have motions I want to file. 2 I told my lawyer I wanted them filed. He hasn’t filed them. So, you know, 3 I think it’s my constitutional right to be able to file them myself or have a 4 lawyer that will.” 5 The prosecutor advised the court that he would waive notice on the 6 motions, and said it was fine, as long as he got the motions the day of trial. 7 Appellant briefly described the motions. The court and appellant then 8 resumed their dialogue: 9 “THE COURT: Are you representing to the court, Mr. Rea, that you 10 will not seek a continuance of the trial date if you are representing yourself? 11 “[APPELLANT]: ‘I’m saying that I would be ready to go forward if 12 a continuance was denied. The part of the aspect of the motion to disqualify 13 the District Attorney requires some affidavits, maybe even some testimony. 14 I don’t know I will be able to do that on my own with resources that I have. 15 [¶] I think you're asking me if I’m – if I’m going to try to delay things. I’m 16 not going to try to delay things. I just think things are going to unfold 17 delayed. 18 “THE COURT: Well, I understand you have motions to change venue 19 and motions to disqualify the District Attorney which if granted would result 20 in necessary delays in the trial. But what I’m looking for is an assurance from 21 you that you are prepared, I think I heard it, to go forward on the 30th if those 22 motions are denied. 23 “[APPELLANT]: I would be prepared, but at the same time I would 24 want to point out on – that it’s fairly common to ask for a stay when 25 somebody is appealing something, and I plan on appealing with the writ of 26 mandamus and asking for the writ – a stay – temporary stay on that, too. [¶] 27 And it’s my understanding I should be able to ask this court for a stay to get 28 that paperwork ready. Now, I will be ready to go if everything is denied. - 10 - 1 “THE COURT: And finally you have checked the box that you 2 understand you will be – if you represent yourself up against an experienced, 3 thoroughly prepared prosecuting attorney who will give you no consideration 4 whatsoever, and that you will likely be at an extreme disadvantage and could 5 lose your case. 6 “[APPELLANT]: I’m already at an extreme disadvantage. 7 “THE COURT: Well, you have checked the box indicating you 8 understand this. I’m just confirming it with you. 9 “[APPELLANT]: Yes, I do understand it. 10 “THE COURT: If you’re inadequately represented at present, that may 11 be . . . grounds for appeal. If you represent yourself, it may not be grounds 12 for relief. 13 “[APPELLANT]: I didn’t check the box that said the representation up 14 until this point was adequate. I understand that my representation of myself 15 after this point will not be something that’s appealable. Is that what you 16 mean? 17 “THE COURT: That’s what I mean. [¶] All right. Then on the 18 understanding no continuance would be required until the motions still to be 19 filed are granted, the court relieves Mr. Carroll and permits Mr. Rea to act as 20 his own attorney.” Appellant did not object to the court’s description of their 21 understanding. 22 On November 19, 2010, the trial court heard and denied several 23 motions filed by appellant, including motions to disqualify the prosecutor, 24 change venue, and reduce appellant’s bail. His continuance motion cited 25 several factors, including his former counsel’s failure to adequately 26 investigate evidence before the preliminary hearing. During the hearing, 27 appellant complained about his limited access to resources in the jail and the 28 fact that he had not received a prosecution expert report concerning excessive - 11 - 1 force. When he received the report later that afternoon, he complained that 2 he would not be able to do anything with it because he was not allowed to 3 make phone calls from jail. During the hearing, appellant denied having 4 promised he would not seek a continuance in order to obtain pro per status. 5 Rather, he said, he had indicated that if the court denied his continuance, he 6 “would be ready to go.” 7 On November 22, 2010, the trial court stated that attorney Carroll had 8 indicated that if he were reappointed to represent appellant, he would need at 9 least a two-week continuance to prepare for trial. The court then denied 10 appellant’s continuance request, without prejudice to renewing it on 11 November 29th, if a new issue arose. 12 On November 29, 2010, the trial court stated that, given juror 13 availability considerations, trial would begin on December 1st. It proposed 14 that the parties return the following day to discuss any outstanding issues. 15 On November 30, 2010, the trial court announced that it had received 16 a written request from appellant to withdraw his motion to represent himself 17 and to reappoint Mr. Carroll, the same lawyer he had earlier asked the court 18 to remove. The court expressed concern that granting the motion would result 19 in delay and disruption because the case involved multiple witnesses and there 20 was inherent difficulty in getting them lined up in a busy trial schedule. It 21 noted that appellant’s former counsel had informed the court that it would 22 “take at least a couple of weeks for him to be up to speed from his point of 23 view.” The court concluded that it would be unreasonably disruptive to 24 change course at that point and try to bring in appointed counsel at such a late 25 stage, and denied appellant’s motion to withdraw or revoke his Faretta 26 waiver. 27 Appellant then waived his right to a jury trial, and inquired whether the 28 absence of a jury might enable Carroll to prepare more quickly. Carroll - 12 - 1 advised the trial court that he would not be prepared to proceed without a 2 continuance. Given his response, the court reaffirmed its ruling denying 3 appellant’s motion to withdraw his Faretta waiver. Appellant requested a 4 continuance, and the court denied his request. 5 During trial, at the conclusion of Deputy Anderson’s direct 6 examination, appellant asked the court to allow him to begin 7 cross-examination the following day. He said he was tired and had a 8 headache. 9 cross-examination. The prosecution called two other witnesses that afternoon. 10 The next morning, a Friday, appellant said that he had another headache and 11 asked that Anderson’s cross-examination be continued so that he could 12 prepare over the weekend. The court expressed its preference for Anderson’s 13 cross-examination to begin. Appellant responded, “I’m ready, then,” and 14 cross-examined him. At his request, the trial court postponed Anderson’s 15 16 The Trial Court Did Not Abuse Its Discretion in Denying 17 Appellant's Request to Revoke His Faretta Waiver 18 A trial court has wide discretion in deciding whether to appoint counsel 19 for a criminal defendant who previously invoked his right to represent himself 20 pursuant to Faretta. [Citation.] We review the court’s ruling for an abuse of 21 discretion. [Citation.] In determining whether a trial court has abused its 22 discretion in denying such a request, we consider factors such as (1) 23 defendant’s prior history in the substitution of counsel and in the desire to 24 change from self-representation to counsel representation; (2) the reasons set 25 forth in the request; (3) the length and stage of the proceedings; (4) the 26 disruption or delay which reasonably might be expected to ensue from the 27 granting of such motion; and (5) the likelihood of defendant’s effectiveness 28 in defending against the charges if required to continue to act as his own - 13 - 1 attorney. [Citation.] However, we determine whether the court abused its 2 discretion by considering the totality of facts and circumstances surrounding 3 the request for reappointment of counsel, rather [than] by a mechanical 4 weighing of those factors. [Citations.] The trial court did not abuse its 5 discretion in denying appellant’s request to revoke his Faretta waiver. 6 In late November, appellant asked to revoke his Faretta waiver, barely 7 two days before the date set for the trial to begin, and asked for the 8 reappointment of attorney Carroll, despite his having made Marsden motions 9 seeking Carroll’s removal in May and on November 15, 2010. In addition, 10 appellant had filed an earlier Faretta motion on November 1, which he 11 withdrew the next day. Given those circumstances, the trial court could 12 reasonably infer that he sought to revoke his Faretta waiver for purposes of 13 delay and that he would not actually be satisfied if the court reappointed 14 Carroll. Moreover, before granting appellant’s Faretta request, the court 15 admonished him, in writing, about the dangers of representing himself and he 16 nevertheless chose to do so. The court also had required appellant’s assurance 17 that he would be prepared to start trial on schedule without a continuance. 18 Before denying appellant’s request to revoke his Faretta waiver, the court 19 expressed its concern about juror and witness availability, as well as the 20 difficulties a delay would pose for other scheduled matters.FN4 21 FN4. The instant matter commenced on March 30. Over the 22 ensuing months appellant twice sought to discharge his appointed 23 counsel, twice sought to represent himself (and once to “unrepresent 24 himself”), to disqualify not only his counsel but also the district 25 attorney and the trial judge. After he was granted pro. per. status he 26 made the court aware of his intention to bring “a writ of mandate” and 27 other matters despite being on notice that the time for trial was fast 28 approaching and that the court would be chary with the granting of - 14 - 1 continuances. In short, it appears that appellant was “gaming the 2 system.” [Citation.] As surely as the court has an obligation to insure 3 defendant receives a fair trial it has a “duty to the public to prevent a 4 defendant from playing games in court.” (Ibid.) 5 6 Even assuming that the trial court somehow [erred], it is not reasonably 7 probable that he would have obtained a more favorable outcome if the court 8 had appointed counsel to represent him, in view of the overwhelming 9 evidence of his guilt. [Citation.] Four witnesses (two deputies and two 10 bystanders) testified as to the battery and resisting arrest charges. In addition, 11 a Grover City police officer testified that in 2008, appellant resisted the 12 efforts of several officers who tried to arrest him. As the above background 13 discussion explains, there was also compelling evidence that appellant 14 transported methamphetamine, and possessed it for the purpose of sale, and 15 strong evidence that he was under the influence of methamphetamine on 16 March 27, 2010. 17 We reject appellant’s claim that an attorney might have presented a 18 successful voluntary intoxication defense to the two counts of resisting a 19 peace officer. Because the prosecution relied on the resistance prong of 20 section 69, the offense was a general intent crime rather than a specific intent 21 crime. [Citation.] As such, voluntary intoxication was not a defense. (§ 22.) 22 .... 23 Continuance Request 24 25 Appellant further contends that the trial court abused its discretion and 26 deprived him of due process by denying his requests to continue his trial. We 27 disagree. 28 - 15 - 1 It is in the trial court’s sound discretion to determine whether a 2 continuance should be granted, but the court must not exercise its discretion 3 to deprive the defendant of a reasonable opportunity to prepare. [Citations and 4 further California law discussion omitted.] 5 [Penal Code] Section 1050, subdivision (b) provides that “[t]o continue 6 any hearing in a criminal proceeding, including the trial, . . . a written notice 7 shall be filed and served . . . at least two court days before the hearing sought 8 to be continued, together with affidavits or declarations detailing specific 9 facts showing that a continuance is necessary . . . .” A continuance shall not 10 be granted absent good cause. (Id., subd. (e).) 11 A court may condition the granting of the right of self-representation 12 on defendant’s waiver of a continuance. [Citation.] A “‘defendant who 13 chooses to represent himself assumes the responsibilities inherent in the role 14 which he has undertaken,’ and ‘is not entitled to special privileges not given 15 an attorney . . . .’ [Citations.]” [Citation.] “‘In determining whether a denial 16 [of a request for continuance] was so arbitrary as to deny due process, the 17 appellate court looks to the circumstances of each case and to the reasons 18 presented for the request.’ ” [Citation.] We have already described the 19 relevant circumstances and reasons surrounding appellant’s request for a 20 continuance. He has not met his burden of establishing that the lower court 21 rulings exceeded “the bounds of reason, all circumstances being considered.” 22 [Citation.] 23 24 Lodgment 6 at 5-12. 25 26 C. Discussion 27 Although the background for this claim is extensive, this Court’s analysis need 28 not be. The denial of the Faretta-revocation aspect of this claim was clearly not - 16 - 1 unreasonable in its application of the general principles of Faretta and Gideon. It is 2 difficult to imagine how the trial judge could have been clearer in requiring that Petitioner 3 be ready to proceed to trial in pro per on November 30, even if the court were to have 4 denied Petitioner’s mid-November motions. And in response, Petitioner’s promise of his 5 readiness to proceed – again, even if the judge denied further continuances – was crystal 6 clear. Petitioner’s prior conduct relating to representation does not aid his claim, as the 7 state courts explained in a footnote. Petitioner twice tried to fire his appointed counsel, 8 twice sought to represent himself and even sought to disqualify the prosecutor and the 9 judge. Finally, the tardiness of Petitioner’s revocation request, made two days before the 10 trial date, weighs against this claim. 11 The state courts also did not violate or unreasonably apply Supreme Court 12 precedent in making their fallback ruling that any possible error was harmless. In John- 13 Charles, supra, the petitioner argued that a possible error in refusing to re-appoint counsel 14 was a “structural error” requiring reversal no matter how harmless it may have been. “We 15 disagree,” the Ninth Circuit explained. 16 17 John–Charles’s position lacks even a toehold in clearly established Supreme 18 Court precedent. As discussed above, no Supreme Court authority holds that 19 a defendant has a constitutional right to post-Faretta reappointment of 20 counsel once trial proceedings have commenced. Given this landscape, 21 bounded only by the requirement to reasonably apply the general principles 22 of Gideon and Faretta, state courts could reasonably decide to vest the 23 reappointment decision in the trial judge’s discretion, prescribe a test for 24 guiding that discretion, and establish a framework for reviewing errors in trial 25 courts’ application of that framework in particular cases. A state court’s 26 decision to do any or all of these things would not be contrary to, or an 27 unreasonable application of, clearly established Supreme Court precedent. 28 - 17 - 1 In short, the Supreme Court has not clearly articulated a constitutional 2 right to post- Faretta reappointment of counsel during trial. It has not defined 3 the standard of review that should apply to trial courts’ handling of such 4 issues. And it has not spoken on whether a trial court’s error in ruling on a 5 reappointment request is structural or trial error. This silence compels us to 6 defer to the state court’s reasonable attempts to fill the void. Even if we 7 would have interpreted Sixth Amendment requirements differently than the 8 California courts, we cannot say the state court’s analysis is objectively 9 unreasonable. See Harrington [v. Richter], [___ U.S. ___,] 131 S.Ct. [770,] 10 785[,] [178 L.Ed.2d 624] (2011). Accordingly, we conclude that the 11 California Court of Appeal’s decision here (i.e., that the trial court's error was 12 harmless beyond a reasonable doubt) is not contrary to or an unreasonable 13 application of clearly established Supreme Court precedent. 14 15 646 F.3d at 1251. Here, the California Court of Appeal applied a less-rigorous test for 16 harm than the harmless-beyond-reasonable-doubt test underlying John-Charles. Instead, 17 the appellate court assessed whether, if not for the possible error, it was “reasonably 18 probable that [Petitioner] would have obtained a more favorable outcome[.]” Lodgment 6 19 at 11. Nonetheless, its ruling was at least reasonable. Petitioner essentially does not 20 challenge the drug-related evidence, and four eyewitnesses described in confident detail 21 how Petitioner violently resisted arrest and seriously injured Deputy Anderson. It is not 22 unreasonable, in light of the record, to conclude that reappointment of counsel would not 23 have been likely to have led to a better trial result. 24 For similar reasons, the state courts did not violate or unreasonably apply 25 Supreme Court authority in denying Petitioner a continuance. Indeed, Petitioner expressly 26 promised that he would be ready to proceed as his own counsel even absent such a 27 continuance. Habeas relief is unwarranted. 28 - 18 - 1 V. 2 CONCLUSION 3 4 For the foregoing reasons, the Court denies the petition and will enter Judgment dismissing the action with prejudice. 5 6 DATED: April 25, 2013 7 8 9 RALPH ZAREFSKY UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 19 -
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