Unpublished Disposition, 933 F.2d 1014 (9th Cir. 1988)

MEMORANDUM^** 

Appellant Cornell Ray Joshua filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. On October 31, 1988, the district court denied the petition and Joshua timely appealed. We have jurisdiction under 28 U.S.C. § 2254 and affirm.

In 1984 Joshua was arrested and charged with robbery under California Penal Code Section 211. The criminal information also alleged that Joshua had been convicted of five prior felonies within the meaning of California Penal Code Section 667(a).¹ 

Counsel was appointed to represent Joshua. On May 18, 1984, Joshua's attorney filed a request to withdraw as attorney of record on the grounds that Joshua refused to communicate or cooperate in his defense. The request was granted and new counsel was appointed on May, 21, 1984.

On August 2, 1984, the day trial was scheduled to begin, both counsel announced they were ready for trial. Joshua, however, stated that he was not ready and requested to proceed in propria persona. The reasons for this request was that his attorney "is not representing me right. We don't have no understanding communication or nothing. We cuss at each other. We can't get along." The judge asked Joshua if he knew anything about the law. Joshua responded, "I know very little really." He did not formally request a continuance. The prosecutor argued that the state would be "inconvenience [d]" by granting the request. The judge denied the request stating that it was "just a dilatory tactic."

The case was placed on trailing status awaiting an open courtroom. On August 8, 1984, the trial began. During the trial Joshua again requested that he be able to represent himself. When he was informed that he would not be entitled to a continuance, he withdrew his request. Joshua was tried before a jury and convicted of the robbery charge. One allegation of a prior serious felony was dismissed on Joshua's motion. The remaining four charges were found to be true by the jury. Joshua was sentenced to twenty-five years in state prison. He appealed his conviction on the same grounds presented in his present habeas petition. A California Appeals Court affirmed in December, 1985. In 1987, Joshua petitioned the Supreme Court of California for a writ of habeas corpus on the same grounds. This petition was denied. The present habeas petition was filed on May 18, 1988. The district court denied the petition on October 31, 1988.

We review the denial of a petition for a writ of habeas corpus de novo. United States v. Popoola, 881 F.2d 811, 812 (9th Cir. 1989).

A criminal defendant has a constitutional right to represent himself at trial. Faretta v. California, 422 U.S. 806, 817-818 (1975). A request to represent oneself, however, must be timely asserted, Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982), and "need not be granted if it is intended merely as a tactic for delay." United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989). Although Joshua did not combine his request to represent himself with an express request for a continuance it is clear that a continuance would have been necessary, resulting in a delay of the start of the trial. People v. Hill, 148 Cal. App. 3d 744, 196 Cal. Rptr. 382, 389 (1983) ("whenever a pro. per. motion is granted, the defendant is entitled to a reasonable continuance to enable him to prepare for trial"). Joshua stated that he was not ready to proceed and that he knew very little about the law. Also, when he asked six days later, during the trial, to proceed in propria persona he withdrew his request when informed he could not obtain a continuance.

Delay per se, however, is an insufficient ground to deny the right of self-representation. There must be "an affirmative showing of purpose to secure delay." Fritz, 682 F.2d at 784 (emphasis in original). In considering whether a request for self-representation was made as a delaying tactic, a court may consider the prejudice of a delay to the prosecution, the events proceeding the request to determine if they are consistent with a good faith assertion of the Faretta right, and whether the defendant could reasonably have made the request earlier. Id. at 784-85. In considering Joshua's request, the following transpired:

The Court: This is the trial date and this is an old case going back to February. It seems to me that this time it is untimely. What do you think Mr. Cosper [the prosecutor]?

Mr. Cosper: I think so. The information was filed back in February of this year. The case is five months old already. The codefendant has already pled guilty and sentenced to state prison. He is sitting in the County Jail waiting as a possible defense witness.

The Court: He has been in County Jail all this time waiting?

Mr. Cosper: He was in state prison and was ordered out. He is now sitting there waiting. We have witnesses that want to go on vacation that are waiting for this trial to take place. It is an inconvenience to the people. The defendant has already established a prior proclivity for substituting counsel. This is the date of trial. We are ready and we want to go to trial.

The court then denied the motion stating, "I have seen you [Joshua] when you came in before and fired a lawyer before saying the same things you are now saying about Mr. Larkin. I think it is just a dilatory tactic."

Granting Joshua's request would certainly have caused a delay in an already old case. The request was prompted by difficulty communicating with his second appointed counsel. Joshua could reasonably have been expected to have known of this difficulty earlier and made his request prior to the scheduled day of trial. Although it does not appear that the prejudice of such delay to the state was substantial, the potential witness problems, combined with Joshua's behavior prior to the request and the late date of the request, support the trial court's finding that the request was a dilatory tactic on the part of Joshua.

For the foregoing reasons, the district court's denial of Joshua's petition is affirmed.

AFFIRMED.