Unpublished Disposition, 874 F.2d 816 (9th Cir. 1984)

MEMORANDUM^** 

William Wade Strickland appeals the denial of his petition for habeas corpus relief. This claim is based on the district court's determination that the state trial court did not abuse its discretion in denying a motion made on the first day of trial for substituted counsel and for a four-month continuance. We affirm.

FACTS AND PROCEEDINGS BELOW

This appeal arises out of three separate cases in which the appellant was convicted of twenty-three felonies under the laws of California. On October 20, 1982 the appellant was charged with five counts of passing bad checks and one count of felony failure to appear. This case will be referred to as the NSF case. On October 28, 1982 the appellant was charged with one count of conspiracy, eleven counts of grand theft, two counts of unlawful sale of unregistered franchises, and one count of selling franchises in violation of a cease and desist order. These charges resulted from the promotion and purported sale of franchises for "Humphries sandwich shops," and will be referred to as the Humphries case. On March 29, 1983, in the NSF case, the appellant entered into a plea bargain in which he plead guilty to one bad check count and the failure to appear count. On November 28, 1983 the appellant was charged with one count of theft by use of a credit card, two counts of felony false financial statement, and three counts of knowingly issuing checks on insufficient funds. These charges resulted from credit transactions with the Neiman-Marcus retail chain and will be referred to as the Neiman-Marcus case.

Because the appellant originally could not afford counsel, the court appointed attorney Roy Gunner to represent him in the NSF case and the Humphries case. Attorney Mary Franklin was later appointed to represent him in the Neiman-Marcus case. Gunner represented the appellant through the resolution of the NSF case. During this time the trial date for the Humphries case was continued for various reasons five times, with trial dates set for March 28, June 1, September 6, 12, 22, and 23, 1983. On September 26, 1983 the appellant retained attorney David Johnson to represent him in the Humphries case, and the trial date was continued to November 21, 1983. In the interim the appellant was arrested in the Neiman-Marcus case, and his trial date in the Humphries case was again continued to November 28, 1983, and then to January 26 and 30, 1984.

On January 11 the trial court denied a motion to relieve Johnson as counsel. On the day set for the Humphries case trial Johnson renewed his motion to be relieved in order to allow attorney Selwyn Berg to be substituted in. The matter was set for a hearing the next day. At that time attorney Berg advised the court that he had met the appellant the weekend before and was not ready to proceed to trial. The Neiman-Marcus case was scheduled to begin on the same day as the Humphries case and on this date attorney Franklin advised the court that she was not prepared because she and the appellant understood that the Humphries case would be tried first.

On the following day a hearing was held on the substitution of Berg for Johnson and on the scheduling of the Humphries and Neiman-Marcus cases. The court observed that the substitution motion was made on the day of trial, as had the prior motion to substitute Johnson for Gunner, and noted that it appeared to be a manipulative tactic by the appellant. The court then proceeded to hear specific evidence as to why Johnson would be inappropriate to represent the appellant. Berg then informed the court that due to his calendar he would need a 120-day continuance if the appellant were to remain in custody, and 90-days if the appellant were released on bail. The trial court stated that Berg would be permitted to take the Humphries case if he could be prepared by the conclusion of the Neiman-Marcus case, which would be tried first. This would have allowed over three weeks of preparation time. Berg declined.

At the conclusion of the hearing both Johnson and Berg were relieved from the case and Berg was cited for contempt as a result the representations he made to the court regarding whether he had been retained for the whole case or only for the continuance hearing and the amount of the retainer received. Attorney Brad Hallen was appointed to represent the appellant in the Humphries case, which was continued to February 27, 1984, and the Neiman-Marcus case was scheduled to begin on February 7 to give Hallen time to prepare the Humphries case. Before Berg was relieved the court asked the appellant if he wanted Berg to continue, or if he wished the court to appoint Hallen. The appellant responded that he wanted Hallen appointed.

The Neiman-Marcus case proceeded to trial on February 7, with the appellant represented by attorney Franklin. On that day attorney Berg appeared and the appellant, at the last moment, attempted to have him substituted as counsel, again on Berg's condition for a continuance to prepare the case. The court denied the motion. On February 23 the jury found the appellant guilty of all charges. The Humphries trial began on February 27 and concluded on April 18, again with the jury finding the appellant guilty of all counts charged. The appellant was represented by attorney Hallen. Sentencing was consolidated in these cases and the appellant received a cumulative prison sentence of eight years.

Strickland appealed to the state appellate court on a number of grounds, including deprivation of counsel of choice. The court affirmed on all grounds and held that under the circumstances a four-month continuance would have resulted in an unreasonable disruption to the process of the court. The court further noted that "the scope for which Strickland retained Berg, whether for the hearing on substitution of counsel and continuance alone or for the trial of one or both of the cases, is by no means made clear by the record." The court further noted that the appellant directly expressed his approval of both appointed counsel, Franklin and Hallen, and concluded that there was no abuse of discretion in the denial of the substitution and continuance request.

On a petition for a writ of habeas corpus the district court agreed with the state court. The court acknowledged a constitutional right to chosen counsel, but noted that it can be "forced to yield ... when it will result ... in a disruption of the orderly processes of justice unreasonable under the circumstances," citing People v. Courts, 37 Cal. 3d 784, 790, 210 Cal. Rptr. 193, 196, 693 P.2d 778, 781 (1985). Finding the continuance request to be unreasonable under the circumstances, the court denied the appellant's habeas petition. Strickland appeals.

STANDARD OF REVIEW

We review the denial of a petition for a writ of habeas corpus de novo. Bavramoglu v. Estelle, 806 F.2d 880, 886-87 (9th Cir. 1986).

DISCUSSION

We first note that the appellant's substitution request was not refused. It was the Berg's proviso that he would not represent the appellant unless a substantial continuance were allowed that resulted in the denial. The court specifically gave Berg the opportunity to represent the appellant in the Humphries case at the conclusion of the Neiman-Marcus case, which would have allowed him over three weeks to prepare. Berg found this to be incompatible with his work load and declined. Even though a right to counsel claim is asserted, the appellant's claim is founded in the denial of a continuance motion rather than the denial of counsel.

In some situations due process may dictate that an accused be granted a continuance in order to prepare an adequate defense. United States v. Bogard, 846 F.2d 563, 566 (9th Cir. 1988). The denial of a continuance warrants reversal, however, only when it constitutes an abuse of discretion. See United States v. Studley, 783 F.2d 934, 938 (9th Cir. 1986). When considering the propriety of the denial of a request for a continuance, " [t]here are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process." Ungar v. Sarafite, 376 U.S. 575, 589, 84 S. Ct. 841, 850, 11 L. Ed. 2d 921 (1964). When the defendant's sixth amendment right to counsel is implicated, however, a court must balance several factors to determine whether the denial was fair and reasonable. Studley, 783 F.2d at 938; United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979). Among these factors are whether the continuance would inconvenience witnesses, the court, counsel, or the parties; whether other continuances have been granted; whether legitimate reasons exist for the delay; whether the delay is the defendant's fault; and whether a denial would prejudice the defendant. Id.

Applying these factors we find no abuse of discretion in the court's denial of the continuance to employ attorney Berg and further that the denial was fair and reasonable. The reason given for the requested continuance in this situation was attorney Berg's busy schedule. Moreover, the court made an effort to accommodate the appellant by offering to try the Neiman-Marcus case first in order to give attorney Berg three weeks of preparation time in the Humphries case. The prosecution was having trouble keeping track of witnesses in this case, which had been continued many times for a variety of reasons. Moreover, there has been no suggestion that the denial and consequent appointment of attorney Hallen prejudiced the appellant.

AFFIRMED.