CURTIS SCOTT V. RAUL LOPEZ, No. 12-16561 (9th Cir. 2014)
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FILED OCT 22 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 12-16561 CURTIS SCOTT, Petitioner - Appellant, D.C. No. 2:08-cv-02227-GEBCKD v. MEMORANDUM* RAUL LOPEZ, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., Senior District Judge, Presiding Argued and Submitted October 7, 2014 San Francisco, California Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, Senior District Judge.** Curtis Scott contends the state trial court violated his Sixth Amendment right to represent himself under Faretta v. California, 422 U.S. 806 (1975). The California Court of Appeal rejected that claim because it concluded that Scott did * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kevin Thomas Duffy, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. Page 2 of 3 not make an unequivocal request to represent himself and did not knowingly, intelligently, and voluntarily waive his right to counsel. A state court s determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court s decision. Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Fairminded jurists could disagree about the correctness of the state court s determination that Scott fell short of invoking Faretta. First, the California Court of Appeal did not unreasonably apply Faretta in concluding that Scott never unequivocally requested to represent himself. Scott several times asked to represent himself immediately after being told he could not have a new attorney, and he ignored many of the court s invitations to confirm his inclination to represent himself. Against the backdrop of Scott s lamentable experience with a string of attorneys, it was never clear to the court whether Scott truly wished to represent himself or simply wanted to meet with an effective attorney. Second, even if Scott unequivocally asserted his right to self-representation, the California Court of Appeal reasonably found that he did not do so knowingly, intelligently, and voluntarily. Scott insisted that his request was involuntary and Page 3 of 3 made only under duress. He refused to fill out a Faretta form because he thought it contained objectionable stipulated terms and forced him to acknowledge responsibilities. The state court reasonably concluded on the basis of these and similar statements that Scott was not willing to take on the risks of mounting his own defense. To the extent that Scott s brief raises uncertified issues, we construe his arguments as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104 05 (9th Cir. 1999) (per curiam). AFFIRMED.
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