Arias v. Virga, No. 4:2013cv03217 - Document 28 (N.D. Cal. 2015)
Court Description: ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY re 1 Petition for Writ of Habeas Corpus filed by Renie J. Arias, ***Civil Case Terminated. (CERTIFICATE OF SERVICE ATTACHED) Signed by Judge Phyllis J. Hamilton on 7/16/15. (napS, COURT STAFF) (Filed on 7/16/2015) Modified on 7/16/2015 (napS, COURT STAFF).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RENIE J. ARIAS, Case No. 13-cv-03217-PJH Petitioner, 8 v. ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DENYING CERTIFICATE OF APPEALABILITY 9 10 TIM VIRGA, Respondent. United States District Court Northern District of California 11 12 13 This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. 14 § 2254. The court ordered respondent to show cause why the writ should not be granted. 15 Respondent filed an answer and lodged exhibits with the court. For the reasons set out 16 below, the petition is denied. 17 BACKGROUND 18 In May 2011, petitioner was convicted of first degree felony murder and first 19 degree robbery by a Contra Costa County jury. Clerk's Transcript (“CT”) at 337-43. 20 Petitioner was sentenced to 25 years to life in prison and a concurrent 3-year prison term 21 for the robbery count in July 2011. Id. 22 On April 30, 2012, the California Court of Appeal affirmed the conviction and 23 modified the judgment to reflect that the 3-year prison sentence be stayed to become 24 permanent upon completion of the 25-year-to-life term. Answer, Ex. 7 at 8. On July 11, 25 2013, petitioner filed a timely habeas petition in this court. Three months later, this court 26 granted petitioner’s request to stay the petition while he exhausted a remaining claim in 27 state court. CT at 7. On May 14, 2014, the Supreme Court of California denied his state 28 claim. In re Arias, S217185. On July 3, 2014, this court lifted the stay, reopened the 1 case and ordered respondent to show cause why the petition should not be granted. CT 2 at 12. STATEMENT OF FACTS 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 The facts relevant to the petition, as described by the California Court of Appeal, are as follows: Because defendant does not challenge the sufficiency of the evidence to support his convictions, and because the contentions he advances on this appeal are not dependent on the trial record, only a brief description of the crimes is necessary. It appears that the victim, Kenic Echeverria, was something like the neighborhood fence. He also seems to have had a problem keeping his car from being impounded. Both of these circumstances caused him to have the reputation of carrying large sums of money on his person. David Hernandez and defendant, both of whom had sold stolen property to Echeverria, decided to rob him. Defendant believed there was no plan to kill Echeverria. But on May 19, 2008, as soon as Hernandez and defendant were alone with Echeverria, Hernandez shot him. Money was taken from the victim and split between Hernandez and defendant, who also took his car. People v. Arias, No. A132893, 2012 WL 1492336, at *1 (Cal. Ct. App. April 30, 2012). STANDARD OF REVIEW A district court may not grant a petition challenging a state conviction or sentence 19 on the basis of a claim that was reviewed on the merits in state court unless the state 20 court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or 21 involved an unreasonable application of, clearly established Federal law, as determined 22 by the Supreme Court of the United States; or (2) resulted in a decision that was based 23 on an unreasonable determination of the facts in light of the evidence presented in the 24 State court proceeding." 28 U.S.C. § 2254(d). The first prong applies both to questions 25 of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 26 362, 407-09 (2000), while the second prong applies to decisions based on factual 27 determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003). 28 2 1 A state court decision is “contrary to” Supreme Court authority, that is, falls under 2 the first clause of § 2254(d)(1), only if “the state court arrives at a conclusion opposite to 3 that reached by [the Supreme] Court on a question of law or if the state court decides a 4 case differently than [the Supreme] Court has on a set of materially indistinguishable 5 facts.” Williams (Terry), 529 U.S. at 412-13. A state court decision is an “unreasonable 6 application of” Supreme Court authority, falling under the second clause of § 2254(d)(1), 7 if it correctly identifies the governing legal principle from the Supreme Court’s decisions 8 but “unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413. 9 The federal court on habeas review may not issue the writ “simply because that court concludes in its independent judgment that the relevant state-court decision applied 11 United States District Court Northern District of California 10 clearly established federal law erroneously or incorrectly.” Id. at 411. Rather, the 12 application must be “objectively unreasonable” to support granting the writ. Id. at 409. 13 Under 28 U.S.C. § 2254(d)(2), a state court decision “based on a factual 14 determination will not be overturned on factual grounds unless objectively unreasonable 15 in light of the evidence presented in the state-court proceeding.” See Miller-El, 537 U.S. 16 at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000). 17 The state court decision to which § 2254(d) applies is the “last reasoned decision” 18 of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. 19 Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion 20 from the highest state court to consider the petitioner’s claims, the court looks to the last 21 reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 22 1079 n.2 (9th Cir. 2000). The court looks to the California Court of Appeal opinion for the 23 first claim in the petition and to the Contra Costa County Superior Court decision denying 24 the state petition for the second claim. 25 26 27 28 3 1 DISCUSSION 2 As grounds for federal habeas relief, petitioner asserts that: (1) the trial court 3 abused its discretion by denying petitioner's request for advisory counsel; and (2) the trial 4 court violated due process by denying his request for a continuance. 5 6 7 I. ADVISORY COUNSEL Petitioner asserts that the trial court abused its discretion by denying his request for advisory counsel after petitioner elected to proceed pro se. 8 BACKGROUND 9 The California Court of Appeal set forth the following facts: 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 The information against defendant was filed in July 2009. In December of the following year, defendant moved to have the public defender relieved as his counsel and to represent himself as permitted by Faretta v. California (1975) 422 U.S. 806. The motion was granted. In January 2011, defendant submitted handwritten motions for “court appointed legal runner” and “court appointed investigator.” Both motions were granted. Defendant thereafter peppered the court with his motions, some of which were granted, some not. In May of 2011, defendant submitted two motions to have a specific private counsel, Joseph M. Tully, appointed to defend him. The motions were heard on May 9, one week before the set trial date. The court granted the motion insofar as defendant was seeking to have counsel appointed, but denied it by refusing to appoint Mr. Tully. The court was explicit about what this entailed: “Mr. Arias, I'm going to deny your request to appoint a particular attorney. I will refer you back to the public defender's office. If they conflict, then it might go to the alternate defender or it might go to the conflicts panel and you may or may not, if they conflict, get Mr. Tully. But I'm not going to directly appoint Mr. Tully.” 27 The prosecutor made the same point: “You understand, sir, that you're going to get referred back to the public defender's and in all likelihood you could get the same attorney [i.e., the same individual who represented defendant before he elected to represent himself]. We can't guarantee that. Knowing that, do you still wish to have counsel appointed or do you wish to continue representing yourself? 28 “THE DEFENDANT: I wish to have counsel appointed.” 24 25 26 4 1 2 3 4 5 6 7 Three days later, on Thursday, May 12, four days before the trial date, defendant filed a “Motion For Advisory and/or Standby Counsel,” again specifying his desire for Mr. Tully. A public defender advised the court that “We're prepared to accept Mr. Arias' case back, and what I'd like to do is put this over to-set on May 25 ... if that's acceptable.” The prosecutor was agreeable, but he noted “I do think that we have to address Mr. Arias' latest motion which is a motion for advisory counsel.” 13 The court inquired of defendant, “I assume you're asking that the public defender be appointed as advisory counsel as opposed to your counsel for all purposes?” Defendant replied: “Yes, if I don't get Mr. Tully. I was under the impression that the Public Defenders Alternate won't do an advisory.” After the public defender confirmed “That is correct,” the court stated: “I do not find good cause in this matter to grant advisory counsel. It is within my discretion. [¶] So your choice is you earlier confirmed the trial for .. the 16th. So do you want to go to trial on Monday, or do you want to be referred to the Public Defender for them to represent you as counsel of record?” 14 At this point the prosecutor spoke up: 15 “MR. GROVE: Judge, could I interpose here for a second? ... [¶] I did happen to do some research on the advisory counsel issue and it is within the court's discretion but I do believe that there are a number of factors which weigh for the court denying his request for advisory counsel including his extensive rap sheet with numerous contacts with the criminal justice system, his demonstration of ability to understand the legal system as evidenced by his numerous discovery motions, continuance motions and appointment of counsel motions. He has credibly, lucidly discussed the case both on the record and off the record and I also think there's evidence he's manipulating the system here as he is asking for Mr. Tully to be the advisory counsel after it was denied that Mr. Tully would be appointed counsel. With that, I'm prepared to proceed. 8 9 10 11 United States District Court Northern District of California The prosecutor then inquired “if the court's going to vacate the jury trial on the 16th.” The court responded “I do not intend to vacate it today.” 12 16 17 18 19 20 21 22 25 “THE COURT: All right, I do accept all of Mr. Grove's arguments; I concur with him for the record. [¶] So, Mr. Arias, do you want the public defender to be your counsel of record? They have accepted. [¶] Or do you wish to proceed to trial in pro per? [¶] I will not grant a motion for advisory counsel. 26 “THE DEFENDANT: There's no way I can get an advisory? 27 “THE COURT: I denied that motion. 28 “THE DEFENDANT: I feel like I can represent myself better in 23 24 5 1 2 3 4 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 trial better with an advisory that way I can speak my mind. “THE COURT: I heard you and read your motion and your motion is denied.” After discussing another matter, the court again asked defendant: “Do you wish to proceed to trial next week in pro per, or do you wish to be represented by the public defender as counsel of record? [¶] ... [¶] Mr. Arias, you should be aware that once the trial date has arrived, it is within the complete discretion of the trial court whether to allow you to then literally on the eve of trial ask for a lawyer. So if you decide today to go forward in pro per status, it may be to your peril if you decide to change your mind next week so I will ask you to very carefully consider do you want me to appoint the public defender to represent you, and they're willing to accept you today, or do you wish to proceed to trial on Monday, the 16th, representing yourself?” Defendant elected to “Proceed to trial.” At the start of trial proceedings on May 16, the trial court confirmed with defendant “that it is your desire to . . . represent yourself.” Arias, 2012 WL 1492336, at *1-3. (Omissions in original). 14 LEGAL STANDARD 15 A defendant in a criminal proceeding has a constitutional right to waive the 16 assistance of counsel if he or she so wishes. Faretta v. California, 422 U.S. 806, 819-20 17 (1975). A court must ensure that this waiver was made "knowingly and intelligently" so 18 that a litigant is "aware of the dangers and disadvantages of self-representation." Id. at 19 835. Faretta further provides that it is within a trial court's power to "appoint a 'standby 20 counsel' to aid the accused if and when the accused requests help, and to be available to 21 represent the accused in the event that termination of the defendant's self-representation 22 is necessary." Id. at 834 n.46. However, this "does not require a trial judge to permit 23 'hybrid' representation." McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (emphasis 24 added). A pro se defendant who has waived his right to counsel via Faretta "does not 25 have a constitutional right to choreograph special appearances by counsel." Id. 26 Accordingly, it is within a court's discretion to deny a request for advisory counsel. See 27 United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (upholding a denial of 28 advisory counsel as within the court's discretion after petitioner was repeatedly 6 1 dissatisfied with his public defender and insisted upon representing himself); Locks v. 2 Sumner, 703 F.2d 403, 408 (9th Cir. 1983) (ruling that the issue of “hybrid representation 3 is best left to the sound discretion of the trial judge”). 4 ANALYSIS 5 It is well established under the Antiterrorism and Effective Death Penalty Act of 6 1996 that it is not "an unreasonable application of clearly established Federal law for a 7 state court to decline to apply a specific legal rule that has not been squarely established 8 by [the Supreme] Court." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting 9 Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). See also Wright v. Van Patten, 552 U.S. 120, 125 (2008) (reversing a Seventh Circuit decision granting habeas relief 11 United States District Court Northern District of California 10 because no Supreme Court case "squarely addresses" the issue in the case); Carey v. 12 Musladin, 549 U.S. 70, 74 (2006) (limiting federal habeas relief to decisions contrary to 13 the "applicable holdings" of the Court). The Supreme Court has never clearly recognized 14 a constitutional right to advisory counsel. In fact, it has expressly stated that no such 15 right exists: a defendant "does not have a constitutional right to choreograph special 16 appearances by counsel." McKaskle, 465 U.S. at 183. As such, petitioner's claim that 17 his federal constitutional rights were violated by a denial of advisory counsel is without 18 merit. This right is simply not recognized, and the denial of it is therefore not an 19 unreasonable application of federal law. 20 Further, the trial court reasonably denied petitioner's request for advisory counsel. 21 Petitioner argues that the trial court failed to consider the legal complexity of the charges 22 when denying his motion. According to petitioner, he did not adequately defend himself, 23 noting he only cross-examined three of the prosecution's twelve witnesses; only called 24 one witness and the witness was irrelevant to his defense; and clearly did not understand 25 the legal theory of felony murder. However, a defendant takes the "substantial risk" of 26 making errors in his self-representation when he "elects to waive his right to counsel." 27 Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). Petitioner was repeatedly made 28 aware of the disadvantages of self-representation and cautioned that the trial court would 7 1 "not be inclined to continue the trial further [without good cause] since it's been set for 2 trial on numerous occasions." RT at 3. The court then asked petitioner if he still wished 3 to proceed "pro per," to which petitioner responded, "Yes, sir." Id. After this exchange, 4 the trial court ensured that petitioner understood the written Faretta waiver that he had 5 signed. RT 3-9. The trial court also noted the prosecutor's arguments regarding 6 petitioner's ability to understand the legal system, demonstrated by his numerous 7 motions and his ability to be a competent advocate for himself. RT at 3-4. After waiving his right to counsel, petitioner remained adamant in his requests for 8 Mr. Tully to represent him. The Supreme Court has made it clear that a criminal 10 defendant who cannot afford to retain counsel has no right to counsel of his own 11 United States District Court Northern District of California 9 choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988). Nor is he entitled to 12 an attorney who likes and feels comfortable with him. See United States v. Schaff, 948 13 F.2d 501, 505 (9th Cir. 1991). The Sixth Amendment merely guarantees the assistance 14 of counsel, not a "'meaningful relationship' between an accused and his counsel." Morris 15 v. Slappy, 461 U.S. 1, 14 (1983). The trial judge gave petitioner ample opportunity after 16 his waiver request to be represented by a public defender, but told petitioner he would 17 not directly appoint Mr. Tully. Instead, petitioner elected to proceed to trial 18 unrepresented. RT at 5-6. The state court did not unreasonably apply federal law 19 because the Supreme Court has ruled that there is no constitutional right to advisory 20 counsel. Even if such a right were recognized, the denial of specific advisory counsel 21 was reasonable for the reasons set forth above. For all these reasons, the claim is 22 denied. 23 II. REQUEST FOR A CONTINUANCE 24 Petitioner next claims that the trial court's denial of his request for a continuance 25 violated due process and the right to a fair trial. 26 BACKGROUND 27 The record indicates that petitioner made two requests for a continuance. On 28 February 16, 2011, the trial court granted one request for a continuance "due to 8 1 discovery not provided by DA." Answer, Ex. 10 at 115 (underscore in original). On 2 March 23, 2011, petitioner renewed his request for a continuance of trial from May to 3 September 2011 because he was unprepared "due to the late inquiry of Defendant's 4 discovery . . . plus the time required to litigate said material." RT at 12-13. Petitioner 5 also requested various items be provided to his investigator. CT at 88-90. The trial court 6 addressed petitioner’s motion at a hearing on April 18, 2011. In response, the 7 prosecutor’s investigator testified that much of petitioner's requested material had already 8 been provided to petitioner’s court-appointed investigator and the prosecutor explained 9 that they could not comply with other discovery requests because the information did not exist. RT at 18-23. At this hearing, petitioner also pointed out that he could not view 11 United States District Court Northern District of California 10 certain electronic files with the equipment available to him at Martinez Detention Facility. 12 Id. at 15-23. Ultimately, the trial court denied the motion for the continuance because it 13 lacked "good cause," as petitioner was seeking information that was either already 14 provided to him or unimportant to his defense. Id. at 24. However, the court authorized 15 petitioner’s investigator to bring the appropriate equipment to Martinez Detention Facility 16 so that he could view files at issue. Id. The Contra Costa County Superior Court denied 17 petitioner’s habeas petition raising this claim, finding that the trial court did not err 18 because the "DA met its discovery obligations" and "petitioner's failure to properly 19 prepare is his own fault." Answer, Ex. 10 at 115-16. 20 LEGAL STANDARD 21 Generally, "broad discretion must" be given to trial courts on "matters of 22 continuances." Morris v. Slappy, 461 U.S. 1, 11 (1983). To establish a constitutional 23 violation based on the denial of a continuance motion, a petitioner must show that the 24 trial court abused its discretion through an "unreasoning and arbitrary insistence upon 25 expeditiousness in the face of a justifiable request for delay." Id. at 11-12 (internal 26 quotation marks omitted). There are no "mechanical tests" that elucidate when a denial 27 of a continuance is "so arbitrary as to violate due process." Ungar v. Sarafite, 376 U.S. 28 575, 589 (1964). A court can only determine that there has been an abuse of discretion, 9 1 “'after carefully evaluating all relevant factors'" and concludes "'that the denial was 2 arbitrary or unreasonable.'” Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985) 3 (quoting United States v. Flynt, 765 F.2d 1352, 1358 (9th Cir. 1985)). The improper 4 denial of a requested continuance warrants habeas relief only if the trial court's refusal to 5 grant a continuance resulted in actual prejudice to petitioner. Id. See also Gallego v. 6 McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997). 7 ANALYSIS 8 Petitioner argues that denying his request for a continuance barred him from addressing discovery issues, which rendered him unprepared for trial. If petitioner was 10 unprepared for trial, the trial court’s ruling did not cause his unpreparedness. The trial 11 United States District Court Northern District of California 9 court granted petitioner's first request for a continuance to allow for discovery issues to 12 be addressed; an entirely reasonable exercise of discretion. Petitioner subsequently 13 renewed his request for a continuance seeking information that was either already 14 provided to him, or information unimportant to his defense. However, it is clear from the 15 record that these discovery issues were not the fault of the prosecution or the trial court, 16 but rather a result of petitioner's choice to proceed pro se. Petitioner's investigator had 17 been provided with all relevant documents by the prosecution. RT at 23. In effect, there 18 were no discovery issues pertinent to petitioner's defense. Petitioner's unpreparedness 19 was a direct result of his choice of self-representation, despite being warned repeatedly 20 of its drawbacks. RT at 3-9. The court was well within its discretion when it denied the 21 second request and answered for any remaining issues by providing petitioner with the 22 equipment necessary to view the improperly formatted files. RT at 15-24. Considering 23 this record, the trial court did not arbitrarily deny the continuance motion, as is required 24 for habeas relief. Armant, 772 F.2d at 556. There was no justifiable reason for the delay, 25 as petitioner had access to all discovery materials necessary to conduct his defense. As 26 such, the trial court reasonably denied petitioner's request for a continuance and he is not 27 entitled to habeas relief. 28 10 1 Further, petitioner does not adequately demonstrate how the denial of his motion 2 for a continuance prejudiced his defense. The Ninth Circuit has explicitly stated that at 3 least this much is required of petitioner in order to grant habeas relief on these grounds. 4 Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997). Petitioner asserts that his 5 defense was prejudiced, noting that he did not make an opening statement, called forth 6 no helpful witnesses, and only cross-examined three out of the prosecution's twelve 7 witnesses. Traverse at 8. Again, this evidence is more a direct result of petitioner's 8 choice to represent himself than it is the fault of the trial court. These facts are also 9 unrelated to the specific reasons petitioner was seeking the continuance. Petitioner wanted more time to prepare potential material for litigation that he had not received yet 11 United States District Court Northern District of California 10 from the prosecution. Once it was discovered that this material was either available to 12 him or did not exist entirely, petitioner should have prepared his defense accordingly. 13 Lastly, petitioner asserts that he was "still receiving discovery after the trial 14 commenced, which proves the prosecution manipulated the record and the court" as 15 evidence of prejudice. Traverse at 8. However, petitioner concedes that "the record 16 does not show, and this court is not aware" of this fact. Id. Conclusory allegations are 17 insufficient to support a collateral attack on a conviction. James v. Borg, 214 F.3d 20, 26 18 (9th Cir. 1994). (“[c]onclusory allegations which are not supported by a statement of 19 specific facts do not warrant habeas relief.”). This allegation has not been raised 20 previously and is uncorroborated by any external evidence. As such, it cannot warrant 21 habeas relief. 22 Accordingly, the denial of petitioner's request for a continuance was neither a 23 result contrary to, nor an unreasonable application of clearly established Supreme Court 24 law. This claim is denied. 25 26 CONCLUSION The petition for writ of habeas corpus is DENIED on the merits. A certificate of 27 appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which 28 “reasonable jurists would find the district court’s assessment of the constitutional claims 11 1 2 3 debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). IT IS SO ORDERED. Dated: July 16, 2015 ________________________ PHYLLIS J. HAMILTON United States District Judge 4 5 6 7 \\CANDOAK\Data\Users\PJHALL\_psp\2013\2013_03217_Arias_v_Virga_(PSP)\13-cv-03217-PJH-_hc.docx 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12 1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 5 RENIE J. ARIAS, Case No. 13-cv-03217-PJH Plaintiff, 6 v. CERTIFICATE OF SERVICE 7 8 TIM VIRGA, Defendant. 9 10 United States District Court Northern District of California 11 12 13 14 15 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on July 16, 2015, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 19 Renie J. Arias ID: AI-1324 CSP-Corcoran 40001 King Ave. P.O. Box 8800 Corcoran, CA 93212-8309 20 21 Dated: July 16, 2015 22 23 24 25 26 Richard W. Wieking Clerk, United States District Court By:________________________ Nichole Peric, Deputy Clerk to the Honorable PHYLLIS J. HAMILTON 27 28 13
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