Unpublished Disposition, 867 F.2d 614 (9th Cir. 1988)

MEMORANDUM^* 

Following a jury trial the appellant was convicted on April 17, 1974 on charges of conspiracy to import merchandise illegally and of smuggling and importation of controlled substances in violation of 18 U.S.C. §§ 371 and 545. He was given a suspended sentence and placed on probation for three years. This court affirmed his conviction in United States v. Westover, 511 F.2d 1154 (9th Cir. 1975). Subsequent petitions for rehearing en banc and certiorari were denied.

In 1977 the appellant filed for a writ of habeas corpus, or coram nobis in the alternative, claiming among other grounds for reversing his conviction ineffective assistance of counsel. The petition was deemed one for coram nobis because the petitioner was "merely serving a term of probation" when the petition was filed and was rejected by the district court. The district court's denial of the petition for coram nobis was affirmed by this court on appeal. In 1980 the appellant filed what was considered as a judicial misconduct complaint against the judge that denied his petition, claiming judicial bias. The complaint was dismissed by the Chief Judge of the Ninth Circuit on January 27, 1981. The appellant responded with a "petition for a writ of intervention," which was considered as a supplemental complaint and denied by Chief Judge Browning in an order dated March 16, 1982. On February 25, 1982 the district court received by certified mail an "affidavit of bias and motion for recusal" against the district judge. The papers received, however, were captioned "In the United States Court of Appeals for the Ninth Circuit." They were not filed in the district court, and were presumably forwarded to the clerk of this court, where they were filed on March 16, 1982.

The present action stems from the district court's disposition of a Rule 60(b) motion that the appellant properly filed in 1984, again claiming that the judge that denied his habeas claim was biased against him and that he had received ineffective assistance of counsel. On August 31, 1987 the district judge denied the motion, ruling that the appellant had been adequately represented by counsel. The judicial bias claim was not addressed. The appellant then filed a Rule 59(e) motion to alter or amend a judgment, referring to the bias charge that had been unaddressed by the district judge. An order denying this motion was entered on January 13, 1988, which led to the present appeal.

We have jurisdiction under 28 U.S.C. § 1291 and affirm.

STANDARD OF REVIEW

The district judge's failure to address the affidavit of bias requires a remand for a determination on the merits unless we determine, as a matter of law, that the affidavit and papers filed were insufficient to require a hearing on the matter. We will treat the appellant's claim of ineffective assistance of counsel as a renewed coram nobis petition, which is reviewable de novo. See Yasui v. United States, 772 F.2d 1496, 1496 (9th Cir. 1985) (coram nobis proceeding "is of the same general character as one under 28 U.S.C. 2255.") (quoting United States v. Morgan, 346 U.S. 502, 506 n. 4, 74 S. Ct. 247, 249 n. 4, 98 L. Ed. 2d 248 (1954)).

DISCUSSION

Judicial Bias

The appellant asserts that the district judge lacked jurisdiction to rule on the sixth amendment ineffective assistance of counsel claim because the charge of judicial bias was before him. 28 U.S.C. § 144 provides, in part, that " [w]henever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge before whom the matter is pending has a personal bias ... against him ... such judge shall proceed no further ... [and] another judge shall be assigned to hear such proceeding." 28 U.S.C. § 455 provides that " [a]ny ... judge ... shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." A Rule 60(b) motion is the proper mechanism to invoke these provisions when judicial bias is discovered after judgment has been rendered. Liljeberg v. Health Services Acquisition Corp., 108 S. Ct. 2194, 2204, 100 L. Ed. 2d 855 (1988). Thus, our initial inquiry is whether the appellant filed a "timely and sufficient affidavit" alleging judicial bias.

The appellant's Rule 60(b) motion was filed on March 19, 1984, nearly seven years after the habeas petition was denied. This was not timely filed. Even if we were to hold that the appellant's 1982 "affidavit of bias and motion for recusal," which carried a Ninth Circuit caption and was never property filed in the district court, was sufficient to invoke sections 144 and 455, this occurred more than four years after the appellant's habeas claim was denied, and was based on evidence that existed when the habeas petition was filed.

This evidence consisted of a "forgotten series" of tape recorded conversations that took place between March 1977 and February 1978, and evidence of a "secret accusation" made against the appellant prior to the denial of his habeas claim. The accusation, according to the appellant, was an assertion by another person, Andrew McNaughton, that the appellant was the central figure in the smuggling operation that resulted in his conviction. This assertion was allegedly made to the same district judge that denied the appellant's habeas petition.

"A disqualification motion filed after trial and judgment is generally considered untimely," Waggoner v. Dallaire, 649 F.2d 1362, 1370 (9th Cir. 1981), but a delay in filing may be excused for good cause. Id.; United States v. Branco, 798 F.2d 1302, 1304 (9th Cir. 1986). Here the delay cannot be excused. All of the evidence that is offered by the appellant existed when the 1980 bias claim was filed. An untimely motion for recusal constitutes a waiver of the privilege. See Wood v. McEwen, 644 F.2d 797, 802 (9th Cir. 1981), cert. denied, 455 U.S. 942, 102 S. Ct. 1437, 71 L. Ed. 2d 654 (1982). Moreover, as there is nothing in the record to indicate that McNaughton actually implicated the appellant we cannot conclude that the impartiality of the district judge could be reasonably called into question. See 28 U.S.C. § 455; Mayes v. Leipziger, 729 F.2d 605, 607 (9th Cir. 1984). See also United States v. Monaco, 852 F.2d 1143 (9th Cir. 1988) (knowledge obtained from judicial proceedings involving codefendant does not require recusal).

Sufficiency of Counsel

In his 1977 habeas petition the appellant claimed that he was denied the effective assistance of counsel because his retained attorney (1) failed to adequately cross examine prosecution witnesses, (2) refused to allow the appellant to "participate in his own defense" by preparing defense testimony, (3) failed to object to the admission of alleged hearsay and Miranda violations, and to the admission of "fabricated stories" that led to his conviction, and (4) failed to elicit certain technical testimony relating to the value of the substance in question and the "true identification" of the appellant. The district judge determined that these "conclusory allegations" were insufficient to grant the requested relief and denied the claim.

In his 1987 affidavit the appellant reiterates his 1977 claims and further asserts that his attorney prevented him from testifying due to a subjective belief that the appellant was guilty. We will not reconsider those claims that were determined on the merits in the prior petition. See Chua Han Mow v. United States, 730 F.2d 1308, 1310 (9th Cir. 1984), cert. denied, 470 U.S. 1031, 105 S. Ct. 1403, 84 L. Ed. 2d 790 (1985). Thus, the only question we must address is whether the appellant's right to testify was violated when trial counsel declined to call him to testify.

The Supreme Court has recently made it clear that a criminal defendant has a constitutional right to testify on his own behalf. See Rock v. Arkansas, 107 S. Ct. 2704, 2709-10, 97 L. Ed. 2d 37 (1987). It is a fundamental right, and only the defendant is empowered to waive it. See Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S. Ct. 2497, 2510 n. 1, 53 L. Ed. 2d 594 (1977) ("Only such basic decisions as whether to plead guilty, waive a jury, or testify in one's behalf are ultimately for the accused to make.") (Burger, J., concurring). Thus, if a defendant insists on testifying at trial, no matter how unwise a decision, defense counsel must comply. See Ortega v. O'Leary, 843 F.2d 258, 261 (7th Cir. 1988).

The right to testify, however, being "on the other side of the coin" from the privilege against self-incrimination, must be claimed by the defendant or it is waived. Courts have no affirmative duty to ascertain whether a defendant's silence is the result of a knowing and intelligent waiver of this right. See United States v. Systems Architects, Inc., 757 F.2d 373, 375 (1st Cir.), cert. denied, 474 U.S. 847, 106 S. Ct. 139, 88 L. Ed. 2d 115 (1985). As this court has noted, "If [the defendant] does not elect to testify, he must be deemed to have waived his privilege to do so. It would make no sense, and ... it would introduce possible error into the trial to require that the court or the prosecutor ask the defendant whether he wishes to testify." United States v. Ives, 504 F.2d 935, 939-40 (9th Cir. 1974) (citation omitted).

There is nothing on the record to indicate that the defendant's will was overborne by defense counsel, see United States v. Butts, 630 F. Supp. 1145, 1147 (D. Me. 1986), or that the defendant requested to be heard and was denied by the court. See Ortega, 843 F.2d at 260. The appellant acquiesced to defense counsel's tactical decision that it would be in his best interest not to testify. Moreover, on at least one occasion the defendant was asked by the court whether he wished to make any comments and he declined to do so. On this basis we cannot find, fourteen years after conviction, that the defendant's failure to testify resulted from a violation of his due process right to a fair trial.

CONCLUSION

The decision of the district court is affirmed.

AFFIRMED.