Arrendondo v. Neven, No. 11-15581 (9th Cir. 2014)
Annotate this CasePetitioner represented himself against theft charges at trial and was sentenced under Nevada's habitual criminal statute. On appeal, petitioner challenged the district court's denial of his petition for habeas corpus under 28 U.S.C. 2254 and dismissal of his claim of denial of the use of compulsory process. The court concluded that where, as here, the defendant was carefully advised of the procedural risk of foregoing representation by counsel, and also knew of his substantial penal exposure under the charges already filed, it was not unreasonable for the Nevada Supreme Court to conclude that he waived his right to counsel knowingly and intelligently. Further, petitioner's claim of involuntary waiver failed for lack of proof. The court affirmed the district court's judgment on the merits. The court also affirmed the district court's dismissal of the compulsory process claim because petitioner did not pursue the claims through all available state procedures.
Court Description: Criminal Law. The panel affirmed the district court’s (1) denial, on the merits, of a claim of invalid waiver of the right to counsel and (2) dismissal as unexhausted of a claim of denial of the use of compulsory process, in Nevada state prisoner Armis Arrendondo’s habeas corpus petition pursuant to 28 U.S.C. § 2254. The panel held that it was not unreasonable for the Nevada Supreme Court to conclude that Arrendondo waived his right to counsel knowingly and intelligently, where he was carefully advised of the procedural risks of foregoing representation of counsel, and also knew of his substantial penal exposure under the charges already filed. The panel held that Arrendondo’s claim that his waiver of counsel was involuntary fails for lack of proof because he has not established that he was required to choose between constitutionally inadequate counsel and self-representation. The panel held that the district court properly dismissed Arrendondo’s compulsory-process claim as unexhausted, for failure to present an underlying federal theory, where Arrendondo argued and cited Nevada state law alone when he asserted, in the Nevada Supreme Court, that the trial court erred in refusing him adequate time to produce his witnesses. The panel concluded that Arrendondo’s failure to bring a state post-conviction petition raising either his federal compulsory-process claim on the merits, or a claim of ineffective assistance of appellate counsel with respect to the compulsory-process issue, bars this court’s consideration of his compulsory-process claim. Judge Fernandez concurred in the result, but wrote that he is not willing to run the risk of unintended consequences that comes with saying too much, and therefore did not join in the majority’s divagations and unnecessary assertions.
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