Lawrence S. Bittaker, Petitioner-appellee, v. J. J. Enomoto, Respondent-appellant, 587 F.2d 400 (9th Cir. 1978)

Lawrence S. Bittaker was convicted in a California court on a charge of burglary some four years before Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), confirmed to defendants in state prosecutions the constitutional right of self-representation earlier recognized in federal courts. Bittaker brought habeas corpus before Faretta. The district court held after Faretta that the state's denial of Bittaker's right of self-representation was a federal constitutional defect requiring the setting aside of his state conviction. The state appeals; we affirm.

While the parties have briefed and argued the case in terms of the "retroactivity" of Faretta, it is not necessary to reach that question because the law of this circuit at the time of Bittaker's state court trial had already been established in a fashion consistent with the Supreme Court's statement of the law in Faretta. Arnold v. United States, 414 F.2d 1056, 1058 (9th Cir. 1969), Cert. denied, 396 U.S. 1021, 90 S. Ct. 593, 24 L. Ed. 2d 514 (1970); Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967). This circuit had stated in federal cases that self-representation was a corollary of the Sixth Amendment right to counsel. Because the defendant could waive his Sixth Amendment right, we said he could also insist on self-representation as a constitutional, as well as a statutory, right. Until now, we have had no occasion to apply the federal constitutional right to state habeas petitioners. The Second Circuit, however, had done so. United States ex rel. Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). We avoided the question in Meeks v. Craven, 482 F.2d 465, 466 (9th Cir. 1973), because the petitioner's assertion of the right was inadequate.

There can be little doubt, however, that, if squarely faced with the issue, we would have applied the right to self-representation to a state habeas petitioner.

We had already characterized the right as a constitutional one in Arnold v. United States, 414 F.2d at 1058. The Supreme Court had previously applied virtually the entire Sixth Amendment to the states. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S. Ct. 1444, 20 L. Ed. 2d 491 (1968); Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). Accordingly there was no obvious reason to refuse to apply the implied Sixth Amendment right to self-representation as well.¹  We therefore agree with the district court that Bittaker would have been entitled to habeas relief had he sought it under the pre-Faretta law of this circuit.

The state emphasizes that Faretta has a somewhat different conceptual basis from our prior holdings. The Supreme Court held that the right to self-representation is implied in the structure of the Sixth Amendment. We had expressed it as a counterpart to the right to counsel.

According to the state, the conceptual distinction makes our previous cases irrelevant. We disagree. Before Faretta a state defendant in this circuit had a federal constitutional right to self-representation. After Faretta the right was the same, whether or not its rationale was expressed in the same terms. The state would have us tell Bittaker that even though he had the same right before Faretta as prisoners in other circuits have since, we must refuse relief because the Supreme Court used different words than we had used in justifying that right. We will not engage in such a verbal minuet.

Finally, the state argues that we should apply the harmless-error doctrine to denials of the right of self-representation.²  Again, we disagree.

Before Faretta we had held that the defendant need not show prejudice resulting from the denial of the right. United States v. Price, 474 F.2d 1223, 1227 (9th Cir. 1973). The Supreme Court vacated the judgment in Faretta without considering possible prejudice to the defendant. 422 U.S. at 836, 95 S. Ct. 2525. Indeed, it noted that in most cases a defendant's case will suffer if he or she asserts the right. 422 U.S. at 834, 95 S. Ct. 2525. Some defendants may be able to show prejudice from the assistance of unwanted counsel, but we will not speculate on the volume of such cases. To require such a showing could make the right to conduct one's own defense virtually unenforceable on appeal in the majority of cases.

The purpose of the right is to protect the defendant's personal autonomy, not to promote the convenience or efficiency of the trial. 422 U.S. at 834, 95 S. Ct. 2525. Thus, a denial of the right automatically prejudices the defendant's freedom interest. More is unnecessary. We do not reach other arguments urged in support of the judgment below.

Affirmed.