Unpublished Disposition, 937 F.2d 611 (9th Cir. 1991)

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U.S. Court of Appeals for the Ninth Circuit - 937 F.2d 611 (9th Cir. 1991)

Stephen BISHOP, Petitioner-Appellant,v.Samuel A. LEWIS, Respondent-Appellee.

No. 90-16756.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1991.* Decided July 1, 1991.As Amended on Denial of Rehearing Sept. 25, 1991.

Before SCHROEDER, FLETCHER and LEAVY, Circuit Judges.


Stephen Bishop, an Arizona state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and we affirm.

In 1982, Bishop was indicted for attempted escape and conspiracy to escape from state prison. The trial court granted Bishop's request to represent himself at trial with the assistance of advisory counsel. Before trial began, Bishop made a motion requesting the court order the prison to provide him with law library access so that he could adequately prepare his defense. The trial court denied the motion, advising Bishop that he had access to his advisory counsel who could do the legal research necessary for the trial. Bishop contends that this denial constituted a denial of his right to self-representation in violation of the constitution. Bishop's claim is without merit.

The sixth amendment right to self-representation does not include the right to conduct one's own research at government expense. United States v. Wilson, 690 F.2d 1267, 1271 (9th Cir. 1982), cert. denied, 464 U.S. 867 (1983). Nor does that right imply further rights to materials, facilities, or investigative or educational resources that might aid self-representation. See id. A criminal defendant who exercises his right to reject counsel necessarily relinquishes many of the benefits associated with representation by counsel. Id.

Moreover, Bishop's denial of access to the law library did not cause him to be denied his right to meaningful access to the courts. In Bounds v. Smith, 430 U.S. 817, 830 (1977), the Supreme Court noted that providing access to law libraries is but one of a number of constitutionally permissible means of achieving access to the courts. Availability of legal assistance at government expense, if required, is a constitutionally permissible means of access. Wilson, 690 F.2d at 1271 (citing Bounds, 430 U.S. at 830). Here, because Bishop had an appointed lawyer able to do research and to interview witnesses had he requested it, Bishop could not reject that method and insist on an avenue of his own choosing. See id. Moreover, Bishop was allowed to represent himself throughout the arraignment, argued pretrial motions on his own behalf, and represented himself at trial. Thus, the district court properly determined that Bishop was not denied the right to self-representation, nor was he denied the right to present a defense in his own behalf.

Bishop next contends that he was denied due process because the government was allowed to amend the indictment after trial commenced. This contentions lacks merit.

An indictment must furnish the defendant with a sufficient description of the charges against him to enable him to prepare his defenses, to ensure that the defendant is prosecuted on the basis of facts presented to the grand jury, to enable him to plead jeopardy against a later prosecution, and to inform the court of the facts alleged so that it can determine the sufficiency of the charge. United States v. Laykin, 886 F.2d 1534, 1542 (9th Cir. 1989) (citation and quotation omitted), cert. denied, 110 S. Ct. 2586 (1990). An indictment is sufficient if it contains the elements of the charged crime in adequate detail to inform the defendant of the charge. United States v. Buckley, 689 F.2d 893, 896 (9th Cir.), cert. denied, 460 U.S. 1086 (1983).

The indictment against Bishop charged two counts. In count one, Bishop and another were charged with conspiring to escape, giving several details of the acts taken in furtherance of the escape. The indictment, however, did not cite to the Arizona conspiracy statute. Count two of the indictment charged Bishop with attempted escape. After trial commenced, Bishop brought to the court's attention the fact that the indictment did not cite to the conspiracy statute. It is clear, however, from a reading of the transcript of proceedings before the trial began, that Bishop was aware of the conspiracy charge against him. Moreover, the indictment, read as a whole, adequately apprised him of the charges brought against him. See United States v. Normandeau, 800 F.2d 953, 958 (9th Cir. 1986). Therefore, the district court did not err in determining that Bishop was not prejudiced by the amendment of the indictment.

Finally, Bishop appears to argue that the appellee acted improperly by allowing a witness to be extradited to California prior to Bishop's trial on the escape charges. Bishop has offered nothing to show what that witness' testimony would have involved, or how it would have affected the outcome of his trial, or even that the witness would have been willing to testify on Bishop's behalf if called. Under these circumstances, we find no merit to this claim, either.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4. Accordingly, Bishop's request for oral argument is denied


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3