Rivera v. Clark, No. 3:2020cv01831 - Document 13 (S.D. Cal. 2021)
Court Description: ORDER Denying Petition for a Writ of Habeas Corpus; Denying Requests for an Evidentiary Hearing and Appointment of Counsel; and Denying a Certificate of Appealability. Signed by Judge Gonzalo P. Curiel on 6/15/21.(All non-registered users served via U.S. Mail Service)(dlg)
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Rivera v. Clark Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICKY V. RIVERA, Petitioner, 12 13 v. 14 KEN CLARK, Warden, 15 16 17 18 19 Case No.: 20cv1831 GPC (RBM) ORDER: (1) DENYING PETITION FOR A WRIT OF HABEAS CORPUS; Respondent. (2) DENYING REQUESTS FOR AN EVIDENTIARY HEARING AND APPOINTMENT OF COUNSEL; AND (3) DENYING A CERTIFICATE OF APPEALABILITY 20 Ricky V. Rivera (“Petitioner”) is a state prisoner proceeding pro se and in forma 21 pauperis with a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF 22 Nos. 1, 7.) Petitioner challenges his San Diego County Superior Court conviction in case 23 number SDC240753 for battery with serious bodily injury with an additional finding he 24 personally inflicted great bodily injury on the victim. (See Clerk’s Tr. [“CT”] 472, 474, 25 Lodgment No. 1, ECF No. 11.) After resentencing, Petitioner is currently serving a total 26 sentence of 18 years as a result of consecutive sentences from the instant conviction in case 27 number SCD240753 and a separate conviction in case number SCD243176. 28 Resentencing CT 80, Lodgment No. 7, ECF No. 11.) (See 1 20cv1831 GPC (RBM) Dockets.Justia.com 1 Petitioner alleges in Claim 1, the sole claim in the Petition, that the trial court abused 2 its discretion when it denied his request to represent himself at trial, violating his right to 3 self-representation under the Sixth and Fourteenth Amendments to the federal 4 Constitution. (ECF No. 1 at 6, 14-21.) Petitioner also requests an evidentiary hearing and 5 appointment of counsel. (Id. at 21.) 6 Respondent has filed an Answer and lodged the relevant state court record. (ECF 7 Nos. 10-11.) Respondent maintains habeas relief is unavailable because (1) the Petition is 8 untimely and (2) the state court adjudication of Claim 1 is neither contrary to nor an 9 unreasonable application of clearly established federal law. (ECF No. 10 at 2.) Petitioner 10 has filed a Traverse, in which he maintains his Petition is not untimely because the deadline 11 should be equitably tolled due to attorney abandonment, and that the state court 12 adjudication of Claim 1 is both contrary to and an unreasonable application of clearly 13 established federal law and based on an unreasonable determination of the facts. (ECF No. 14 12.) In the Traverse, Petitioner again requests an evidentiary hearing. (Id. at 3.) 15 For the reasons discussed below, the Court DENIES the Petition for a Writ of 16 Habeas Corpus, DENIES Petitioner’s requests for an evidentiary hearing and appointment 17 of counsel and DENIES a Certificate of Appealability. 18 I. PROCEDURAL HISTORY 19 On September 5, 2013, following a jury trial, Petitioner was found guilty of battery 20 with serious bodily injury in violation of Cal. Penal Code § 243(d) with a true finding on 21 the allegation he personally inflicted great bodily injury on the victim within the meaning 22 of Cal. Penal Code § 1192.7(c)(8). (CT 472, 474.) On that same day, the trial court also 23 made findings Petitioner had suffered several prior convictions. (CT 473, 476.) On 24 January 13, 2014, the trial court sentenced Petitioner to 25 years to life plus 5 years in 25 prison. (CT 479-80.) 26 On appeal to the California Court of Appeal, Petitioner raised two claims, alleging 27 (1) the trial court erred in denying his request to represent himself at trial, violating his 28 right to self-representation under the Sixth and Fourteenth Amendments (the same claim 2 20cv1831 GPC (RBM) 1 raised in the instant Petition) and (2) the trial court erred in refusing to dismiss one of his 2 strikes. (Lodgment No. 3, ECF No. 11-18.) In an order dated November 9, 2015, the state 3 appellate court remanded to the superior court with directions to strike one of Petitioner’s 4 strikes and to resentence him but otherwise affirmed the judgment. (Lodgment No. 6, ECF 5 No. 11-21.) Petitioner did not file a petition for review in the California Supreme Court. 6 On May 20, 2016, Petitioner was resentenced to a term of 18 years, with the instant 7 conviction to run consecutive to a conviction in a separate case. (See Resentencing CT 80- 8 81.) Petitioner appealed the resentencing decision and the state appellate court affirmed 9 the judgment of the trial court in an opinion issued May 19, 2017. (Lodgment Nos. 9, 11, 10 ECF Nos. 11-26, 11-28.) Petitioner did not file a petition for review. 11 On April 3, 2020, proceeding pro se in case number S261661, Petitioner filed a 12 petition for a writ of habeas corpus in the California Supreme Court, asserting for the first 13 time in that court that the trial court violated his right to self-representation in denying his 14 request to represent himself at trial. (Lodgment No. 12, ECF No. 11-29.) On June 24, 15 2020, the California Supreme Court summarily denied the habeas petition. (Lodgment No. 16 13, ECF No. 11-30.) 17 On September 9, 2020, Petitioner constructively filed a Petition for a Writ of Habeas 18 Corpus in this Court.1 (ECF No. 1.) 19 II. REQUEST FOR SELF-REPRESENTATION AT TRIAL 20 The following facts and background concerning Petitioner’s request for self- 21 representation are taken from the state appellate court opinion affirming Petitioner’s 22 conviction in People v. Rivera, D065375 (Cal. Ct. App. Nov. 9, 2015). (See Lodgment 23 24 25 26 27 28 1 While the federal habeas petition is filed-stamped September 15, 2020, the constructive filing date is September 9, 2020, the date Petitioner handed it to correctional officers for mailing to the Court. (ECF No. 1 at 1, 11); Huizar v. Carey, 273 F.3d 1220, 1222 (9th Cir. 2001) (“Under the ‘prison mailbox rule’ of Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), a prisoner’s federal habeas petition is deemed filed when he hands it over to prison authorities for mailing to the district court.”) 3 20cv1831 GPC (RBM) 1 No. 11, ECF No. 11-21.) The state court factual findings are presumptively reasonable and 2 entitled to deference in these proceedings. See Sumner v. Mata, 449 U.S. 539, 545-47 3 (1981). 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On August 26, 2013, before the jury was selected, Rivera brought a motion to relieve appointed counsel under People v. Marsden (1970) 2 Cal.3d 118. The court denied the motion. Later that morning, Rivera requested to absent himself from the trial proceedings. The court also denied that motion. That afternoon, Rivera made his Faretta motion. The court asked Rivera if he was ready to proceed to trial and Rivera replied, “I think I can be ready if (defense counsel) gives me the copies and everything else.” Defense counsel explained that he had given Rivera redacted versions of the police reports, but not some secondary materials, which still needed redacting: “If I were to give (Rivera) everything, I would have to go through a very time consuming process redacting, that’s a really slow process for me because I protect my backside. I’m criminally liable, I’m civilly liable, and I’m liable for discipline with the State Bar if I turn over unredacted material to a defendant.” The court observed that it was in the middle of voir dire, Rivera was not ready for trial, and he would need a continuance to obtain certain discovery from appointed counsel. The court stated Rivera had had four attorneys, including one retained counsel, who had quit representing him. The prosecutor argued that the People would be prejudiced if the trial were continued because one witness had come from out of town, and approximately five other witnesses would no longer be available. Rivera reiterated he was not ready to start trial that day. The court reviewed the factors set forth in People v. Windham (1977) 19 Cal.3d 121, 128, 129 (Windham) and denied Rivera’s Faretta motion, stating the matters Rivera complained about regarding his counsel’s representation were not recent and therefore Rivera could have brought his motion earlier; Rivera’s counsel was providing quality representation; and Rivera had been represented by four attorneys at that point. Rivera clarified that one of the attorneys was retained counsel who had terminated representation on his own. The court concluded: “(W)e look at the disruption or the delay that might reasonably be expected to follow if the request is granted, and that would be I would have to declare a mistrial and dismiss this panel. We’d have to continue the case and then there is the possibility of losing witnesses. There are 25 witnesses subpoenaed by the People in this case including people from out of town. (¶) This case is 18 months old, and there is . . . a disruption or delay that is inherent in the granting of this motion 4 20cv1831 GPC (RBM) 1 because you’re not ready to go to trial at this point. . . . I would have to grant that and that is much more of a disruption or delay than is justified under the circumstances; and so, the motion to proceed in pro per is denied.” Immediately afterwards the court commenced voir dire. 2 3 4 (ECF No. 11-21 at 2-4.) 5 III. PETITIONER’S CLAIM 6 The trial court abused its discretion in denying Petitioner’s request to represent 7 himself at trial pursuant to Faretta v. California, 422 U.S. 806 (1975), in violation of the 8 Sixth and Fourteenth Amendments, including a failure to “ascertain all of the relevant facts 9 before making its ruling” and because the trial record “also does not support a conclusion 10 that [Petitioner] had a proclivity to substitute counsel during the proceedings.” (ECF No. 11 1 at 6.) 12 IV. DISCUSSION 13 The Court finds habeas relief is unavailable because (1) the habeas petition is 14 untimely and Petitioner fails to demonstrate that statutory or equitable tolling or a 15 combination of the two renders the petition timely and (2) the state court adjudication of 16 the sole claim in the habeas petition is not contrary to, nor an unreasonable application of, 17 clearly established federal law, nor is it based on an unreasonable determination of the 18 facts. 19 A. 20 This Petition is governed by the Anti-Terrorism and Effective Death Penalty Act of 21 1996, 28 U.S.C. § 2254 (“AEDPA”). With respect to the statute of limitations, AEDPA 22 provides that: 23 24 Statute of Limitations (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-- 25 26 (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; 27 28 5 20cv1831 GPC (RBM) 1 (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; 2 3 4 (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or 5 6 7 (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 8 9 10 28 U.S.C. § 2244(d)(1)(A)-(D). 11 Petitioner’s statute of limitations began to run on June 29, 2017, the day after his 12 conviction became final, because he did not file a petition for review in the California 13 Supreme Court following the California Court of Appeal decision affirming his judgment 14 after resentencing. See Waldrip v. Hall, 548 F.3d 729, 735 (9th Cir. 2008) (“The California 15 Court of Appeal affirmed Waldrip’s conviction . . . Waldrip did not petition the California 16 Supreme Court for review, and his conviction became final forty days later. . .”); see also 17 Gaston v. Palmer, 417 F.3d 1030, 1033 (9th Cir. 2005) (“Gaston’s conviction became final 18 . . . forty days after the dismissal by the Court of Appeal.”), citing Cal. R. Ct. 24(b)(1), 19 28(e)(1); see also Patterson v. Stewart, 251 F.3d 1243, 1246 (9th Cir. 2001) (holding that 20 Federal Rule of Civil Procedure 6(a), which instructs that: “‘In computing any period of 21 time prescribed or allowed by these rules, by the local rules of any district court, by order 22 of court, or by any applicable statute, the day of the act, event, or default from which the 23 designated period of time begins to run shall not be included,’” was applicable to AEDPA’s 24 limitation period), quoting Fed. R. Civ. Proc. 6(a). Without tolling, Petitioner had one year 25 after his judgment became final, June 29, 2018, to timely file a federal habeas petition. 26 Here, Petitioner constructively filed his federal Petition on September 9, 2020, over two 27 years after expiration of the statute of limitations, again absent tolling. 28 /// 6 20cv1831 GPC (RBM) 1 1. Statutory Tolling 2 AEDPA provides for statutory tolling, specifically that “[t]he time during which a 3 properly filed application for State post-conviction or other collateral review with respect 4 to the pertinent judgment or claim is pending shall not be counted toward any period of 5 limitation under this subsection.” 28 U.S.C. § 2244(d)(2). 6 Petitioner does not assert an entitlement to statutory tolling. Even were Petitioner to 7 assert as much, it is evident statutory tolling is not available, much less statutory tolling 8 sufficient to render the petition timely. Again, the statute began to run June 29, 2017, the 9 limitations period to file a federal petition ended June 29, 2018, and Petitioner 10 constructively filed his federal Petition on September 9, 2020, over 800 days after the 11 limitations period expired. Petitioner did not file any other petitions in state court during 12 the time the limitations period was running. Instead, Petitioner filed a state habeas petition 13 on April 3, 2020, well after the statute of limitations had expired; the state supreme court 14 denied that petition on June 24, 2020. (ECF Nos. 11-29, 11-30.) Respondent is correct in 15 observing a state petition filed after the expiration of the limitations period does not provide 16 for statutory tolling. (See ECF No. 10-1 at 5, citing Ferguson v. Palmateer, 321 F.3d 820, 17 823 (9th Cir. 2003).) Even in the event the Court could consider the time the state habeas 18 petition was pending, it would only amount to just over 80 days, which is not nearly enough 19 to render the federal Petition timely given the more than 800 days that elapsed between the 20 time Petitioner’s judgment became final and the filing of the federal Petition. Petitioner 21 does not identify any other state court filings which could potentially serve to render his 22 federal petition timely through the application of statutory tolling, and the Court finds none. 23 The fact remains that Petitioner bears the burden to demonstrate the statute of 24 limitations is adequately tolled. See Banjo v. Ayers, 614 F.3d 964, 967 (9th Cir. 2010) 25 (“[Petitioner] bears the burden of proving that the statute of limitation was tolled.”), citing 26 Smith v. Duncan, 297 F.3d 809, 814 (9th Cir. 2002), abrogated on other grounds by Pace 27 v. DiGuglielmo, 544 U.S. 408 (2005); see also Zepeda v. Walker, 581 F.3d 1013, 1019 28 (9th Cir. 2009) (“[Petitioner] bears the burden of demonstrating that the AEDPA limitation 7 20cv1831 GPC (RBM) 1 period was sufficiently tolled.”), citing Smith, 297 F.3d at 814 (footnote omitted). Again, 2 Petitioner does not attempt to argue he is entitled to statutory tolling and instead asserts 3 only that he is entitled to equitable tolling due to attorney abandonment. (See ECF No. 12 4 at 2.) As such, the Court finds no need to develop the record further on this matter. In 5 addition, as discussed below, the sole claim fails on the merits. 6 2. Equitable Tolling 7 Respondent maintains Petitioner “has not demonstrated an entitlement to equitable 8 tolling sufficient to render the Petition timely.” (ECF No. 10-1 at 5.) Respondent notes 9 Petitioner explained his delay in filing his state habeas petition in the California Supreme 10 Court by stating he had been waiting for his attorney to file a petition for review and 11 attached a copy of correspondence from his counsel in November 2015, and asserts: “While 12 it was certainly reasonable for Rivera to wait some time for counsel to act, counsel’s failure 13 to file a petition for review in 2015 does not explain the lack of action following finality in 14 June 2017.” (Id., citing ECF No. 11-29.) Petitioner denies Respondent’s assertion of 15 unexplained delay and states without accompanying factual explanation: “Petition is timely 16 due to attorney abandonment.” (ECF No. 12 at 2.) 17 In Holland v. Florida, 560 U.S. 631 (2010), the Supreme Court held that “§ 2244(d) 18 is subject to equitable tolling in appropriate cases.” Holland, 560 U.S. at 645. In so 19 concluding, the Supreme Court noted “[w]e have previously made clear that a ‘petitioner’ 20 is ‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights 21 diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented 22 timely filing.” Id. at 649, quoting Pace, 544 U.S. at 418. The Ninth Circuit further instructs 23 that: “Like any equitable consideration, whether a prisoner is entitled to equitable tolling 24 under AEDPA will depend on a fact-specific inquiry by the habeas court which may be 25 guided by ‘decisions made in other similar cases.’” Doe v. Busby, 661 F.3d 1001, 1011 26 (9th Cir. 2011), quoting Holland, 560 U.S. at 650. 27 Respondent aptly observes Petitioner previously provided an explanation to the 28 California Supreme Court with respect to his delay in filing the April 2020 state habeas 8 20cv1831 GPC (RBM) 1 petition, as Petitioner indicated he had been waiting for appointed counsel to file a petition 2 for review. (See ECF No. 10-1 at 5, citing ECF No. 11-29 at 6, 8.) In that filing, Petitioner 3 stated: “I’ve waited on attorney of appeal to file a petition for review on same issue, yet I 4 was abandoned on [sic] him filing petition for review in supreme court so I can file in 5 federal court.” (ECF No. 11-29 at 6.) Petitioner also included a document he listed as 6 Exhibit A, which he described as: “Letter dated November 09th 2015 from Attorney Daniel 7 J. Kessler, esq. stating he will be filing the ‘petition for review’ in California Supreme 8 Court.” (Id. at 7) (emphasis in original.) 9 Upon review, in the November 2015 letter Petitioner’s appellate attorney indicated 10 the state appellate court agreed one of Petitioner’s strikes should have been stricken and 11 ordered the case returned to trial court for resentencing, stated Petitioner’s self- 12 representation/Faretta claim had been denied, and then outlined the options for proceeding 13 as follows: “We can file a petition for review in the California Supreme Court to challenge 14 the Faretta motion denial. I am evaluating this option. The Supreme Court will certainly 15 deny the petition for review, but this will exhaust your state remedies. You will then be 16 able to raise the issue in federal court in a federal petition for writ of habeas corpus. This 17 review petition will likely delay the appellate process, and it will cause the California 18 Supreme Court to look over the entire opinion in your case. On the other hand, if no 19 petition for review is filed, the remittitur will issue in 60 days and you will be returned to 20 the Superior Court for a new sentencing hearing after that.” (Id. at 8.) 21 Contrary to Petitioner’s assertion, the November 2015 letter does not indicate the 22 appellate attorney intended to file a petition for review. Instead, the attorney indicated it 23 was simply an option he was evaluating, along with not filing a petition for review. Given 24 this case was returned to the superior court and Petitioner was resentenced, it appears the 25 attorney chose the second course of action noted in the letter. However, even providing 26 the letter serves to persuasively explain Petitioner’s failure to file a petition for review 27 following the first state appellate court decision in 2015, Petitioner fails to address, much 28 less explain, his delay in filing following his resentencing proceedings and resultant state 9 20cv1831 GPC (RBM) 1 appellate court decision in 2017. It is this latter period between 2017 and 2020 which is 2 the bulk of the time at issue, given the state habeas petition raising the Faretta claim in the 3 state supreme court for the first and only time was not filed until April 2020 and the federal 4 Petition was filed in September 2020. As such, Respondent’s point is well taken that: 5 “While it was certainly reasonable for Rivera to wait some time for counsel to act, counsel’s 6 failure to file a petition for review in 2015 does not explain the lack of action following 7 finality in June 2017.” (ECF No. 10-1 at 5.) Indeed, the fact remains Petitioner fails to 8 provide any explanation concerning his failure to act between 2017 and 2020, such as any 9 evidence of communication with counsel during this time or his attempts, if any, to file a 10 petition for review or to urge appellate counsel to do so between 2017 and 2020. A review 11 of the record reflects Petitioner had the same counsel on appeal of his 2016 resentencing 12 proceedings as he previously had in 2015 on appeal of his original conviction and sentence. 13 (See ECF No. 11-18 at 1 (2015 appeal); ECF No. 11-26 at 1 (2016 appeal after 14 resentencing).) While Petitioner submitted the letter from appellate counsel in November 15 2015 concerning the appeal of his original conviction and sentence, Petitioner offers 16 nothing concerning any communications with counsel about the 2017 appeal following his 17 resentencing proceedings. 18 Again, to merit equitable tolling, a petitioner must not only demonstrate that 19 “‘extraordinary circumstances stood in his way’ and prevented timely filing” but also must 20 show “he has been pursing his rights diligently.” Holland, 560 U.S. at 649, quoting Pace, 21 544 U.S. at 418. Even were the Court to accept the argument Petitioner may have waited 22 for counsel to file a petition for review following the 2015 state appellate court decision, 23 Petitioner provides nothing to substantiate a contention he similarly waited for counsel to 24 act after the conclusion of the resentencing proceedings and resultant appeal in 2017 such 25 that counsel’s apparent failure to file a petition for review in 2017 was the cause of 26 Petitioner’s untimely September 2020 federal Petition. See Spitsyn v. Moore, 345 F.3d 27 796, 799 (9th Cir. 2003) (“The prisoner must show that the ‘extraordinary circumstances’ 28 were the cause of his untimeliness.’”), quoting Stillman v. LaMarque, 319 F.3d 1199, 1203 10 20cv1831 GPC (RBM) 1 (9th Cir. 2003). Petitioner also fails to even allege diligence or offer any explanation as to 2 what actions he took, if any, between 2017 and 2020. As with the failure to demonstrate 3 extraordinary circumstances that caused the untimeliness, Petitioner’s failure to allege 4 reasonable diligence is also fatal to his equitable tolling argument. See Smith v. Davis, 5 953 F.3d 582, 601 (9th Cir. 2020) (en banc) (affirming district court’s denial of petition as 6 untimely following refusal to apply equitable tolling where petitioner failed to allege 7 diligence after receiving his case file from counsel, reasoning “the petitioner must act with 8 diligence in preparing his petition to warrant equitable tolling; [Petitioner] has not alleged 9 that he was diligent in this manner.”) 10 Given the only explanation Petitioner provides concerns the events immediately 11 following the first appellate court opinion in 2015 and involves a 2015 letter from counsel 12 indicating a petition for review might not be filed, and Petitioner fails to explain his delay 13 in filing following the 2017 resentencing proceedings and appeal nor alleges much less 14 demonstrates diligence in pursing his case following the 2017 resentencing, the Court finds 15 equitable tolling is not warranted in this case. Compare Gibbs v. Legrand, 767 F.3d 879, 16 893 (9th Cir. 2014) (petitioner found diligent and equitable tolling available in case of 17 attorney abandonment where “counsel did not inform him that state post-conviction 18 proceedings had ended, even though counsel had pledged to do so, even though Gibbs 19 wrote to his counsel repeatedly for updates, and even though time in which to file a federal 20 habeas petition was swiftly winding down. As a direct result, Gibbs did not learn that the 21 time for him to file his federal petition had begun until the time was over.”) with Pace, 544 22 U.S. at 419 (equitable tolling not available for lack of diligence where “not only did 23 petitioner sit on his rights for years before he filed his PCRA petition, but he also sat on 24 them for five more months after his PCRA proceedings became final before deciding to 25 seek relief in federal court.”) On this record, Petitioner fails to demonstrate attorney 26 abandonment amounted to extraordinary circumstances that prevented him from timely 27 filing his federal Petition during the AEDPA limitations period, nor does Petitioner 28 demonstrate reasonable diligence. Holland, 560 U.S. at 649 (“[A] ‘petitioner’ is ‘entitled 11 20cv1831 GPC (RBM) 1 to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights diligently, 2 and (2) that some extraordinary circumstance stood in his way’ and prevented timely 3 filing.”), quoting Pace, 544 U.S. at 418. Accordingly, the Court finds equitable tolling is 4 not appropriate. 5 C. 6 Even if Petitioner were somehow able to demonstrate his habeas petition is timely 7 through statutory or equitable tolling or a combination of the two, habeas relief remains 8 unavailable because the state court adjudication of the sole claim in his Petition is not 9 contrary to, nor an unreasonable application of, clearly established federal law, nor is it 10 Merits based on an unreasonable determination of the facts. 11 A state prisoner is not entitled to federal habeas relief on a claim that the state court 12 adjudicated on the merits, unless the state court adjudication: “(1) resulted in a decision 13 that was contrary to, or involved an unreasonable application of, clearly established Federal 14 law, as determined by the Supreme Court of the United States,” or “(2) resulted in a 15 decision that was based on an unreasonable determination of the facts in light of the 16 evidence presented in the State court proceeding.” Harrington v. Richter, 562 U.S. 86, 97- 17 98 (2011), quoting 28 U.S.C. § 2254(d)(1)-(2). 18 A decision is “contrary to” clearly established law if “the state court arrives at a 19 conclusion opposite to that reached by [the Supreme] Court on a question of law or if the 20 state court decides a case differently than [the Supreme] Court has on a set of materially 21 indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A decision 22 involves an “unreasonable application” of clearly established federal law if “the state court 23 identifies the correct governing legal principle . . . but unreasonably applies that principle 24 to the facts of the prisoner’s case.” Id.; Bruce v. Terhune, 376 F.3d 950, 953 (9th Cir. 25 2004). With respect to section 2254(d)(2), “[t]he question under AEDPA is not whether a 26 federal court believes the state court’s determination was incorrect but whether that 27 determination was unreasonable– a substantially higher threshold.” Schriro v. Landrigan, 28 550 U.S. 465, 473 (2007), citing Williams, 529 U.S. at 410. “State-court factual findings, 12 20cv1831 GPC (RBM) 1 moreover, are presumed correct; the petitioner has the burden of rebutting the presumption 2 by ‘clear and convincing evidence.’” Rice v. Collins, 546 U.S. 333, 338-39 (2006), quoting 3 28 U.S.C. § 2254(e)(1). 4 “A state court’s determination that a claim lacks merit precludes federal habeas 5 relief so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s 6 decision.” Richter, 562 U.S. at 101, quoting Yarborough v. Alvarado, 541 U.S. 652, 664 7 (2004). “If this standard is difficult to meet, that is because it was meant to be. As amended 8 by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation 9 of claims already rejected in state proceedings. . . . It preserves authority to issue the writ 10 in cases where there is no possibility fairminded jurists could disagree that the state court’s 11 decision conflicts with [the Supreme] Court’s precedents.” Richter, 562 U.S. at 102. 12 In a federal habeas action, “[t]he petitioner carries the burden of proof.” Cullen v. 13 Pinholster, 563 U.S. 170, 181 (2011), citing Woodford v. Visciotti, 537 U.S. 19, 25 (2002) 14 (per curiam). However, “[p]risoner pro se pleadings are given the benefit of liberal 15 construction.” Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010), citing Erickson v. 16 Pardus, 551 U.S. 89, 94 (2007) (per curiam). 17 “The Sixth Amendment does not provide merely that a defense shall be made for the 18 accused; it grants to the accused personally the right to make his defense. . . . Although not 19 stated in the Amendment in so many words, the right to self-representation-to make one’s 20 own defense personally-is thus necessarily implied by the structure of the Amendment.” 21 Faretta v. California, 422 U.S. 806, 819 (1975) (footnote omitted). “In order to invoke the 22 right of self-representation successfully, a defendant’s waiver of counsel must be ‘timely, 23 not for the purposes of delay, unequivocal, and knowing and intelligent.’” McCormick v. 24 Adams, 621 F.3d 970, 976 (9th Cir. 2010), quoting United States v. Erskine, 355 F.3d 25 1161, 1167 (9th Cir. 2004). The Faretta Court did not articulate a specific measure for 26 timeliness, stating only that in a situation where, “weeks before trial, Faretta clearly and 27 unequivocally declared to the trial judge that he wanted to represent himself and did not 28 want counsel” and “[t]he record affirmatively shows that Faretta was literate, competent, 13 20cv1831 GPC (RBM) 1 and understanding, and that he was voluntarily exercising his informed free will,” that “[i]n 2 forcing Faretta, under these circumstances, to accept against his will a state-appointed 3 public defender, the California courts deprived him of his constitutional right to conduct 4 his own defense.” Faretta, 422 U.S. at 835-36; see also Marshall v. Taylor, 395 F.3d 1058, 5 1061 (9th Cir. 2005) (Faretta “may be read to require a court to grant a Faretta request 6 when the request occurs ‘weeks before trial,’” but “does not define when such a request 7 would become untimely.”) 8 Petitioner presented his Faretta claim in a habeas petition to the California Supreme 9 Court, which the state supreme court denied without a statement of reasoning or citation to 10 authority. (See ECF Nos. 11-29, 11-30.) Petitioner also previously presented this same 11 claim to the California Court of Appeal. (See ECF No. 11-18.) The state appellate court 12 denied Petitioner’s claim on the merits in a reasoned opinion. (See ECF No. 11-21.) 13 The Supreme Court has repeatedly stated that a presumption exists “[w]here there 14 has been one reasoned state judgment rejecting a federal claim, later unexplained orders 15 upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. 16 Nunnemaker, 501 U.S. 797, 803 (1991); see also Wilson v. Sellers, 584 U.S. ___, 138 S.Ct. 17 1188, 1193 (2018) (“We conclude that federal habeas law employs a ‘look through’ 18 presumption.”) Given the lack of any argument or grounds in the record to rebut this 19 presumption, the Court will “look through” the California Supreme Court’s silent denial 20 on state habeas to the reasoned opinion issued by the state appellate court on appeal with 21 respect to Petitioner’s claim that the trial court violated his right to self-representation. See 22 Ylst, 501 U.S. at 804 (“The essence of unexplained orders is that they say nothing. We 23 think that a presumption which gives them no effect- which simply ‘looks through’ them 24 to the last reasoned decision- most nearly reflects the role they are ordinarily intended to 25 play.”) (footnote omitted). 26 The California Court of Appeal rejected Petitioner’s contention the trial court abused 27 its discretion in denying his Faretta motion, reasoning in relevant part as follows: 28 /// 14 20cv1831 GPC (RBM) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Rivera brought his Faretta motion on the morning trial was scheduled to start. As such, the request was not made “within a reasonable time prior to commencement of trial.” (See People v. Moore (1988) 47 Cal.3d 63, 79-81 (Faretta motion made on the day trial was set to begin would have been well within the court’s discretion to deny); People v. Scott (2001) 91 Cal.App.4th 1197, 1205 (Faretta motions made “just prior to the start of trial” are untimely); People v. Hill (1983) 148 Cal.App.3d 744, 757 (Faretta motion made five days before trial was untimely and within trial court’s discretion to deny).) By the time Rivera brought his Faretta motion, the proceedings had been ongoing for 18 months. The length and stage of the proceedings weighed against granting the Faretta motion. Applying the other Windham factors, the trial court evaluated the quality of counsel’s representation and concluded he was adequately representing Rivera. The court further found that Rivera’s proclivity to substitute counsel weighed in favor of denying Rivera’s Faretta motion. The court pointed out Rivera had had four different attorneys, although it acknowledged Rivera’s assertion that retained counsel had quit and was not fired by him. The court also considered the reasons for Rivera’s motion and concluded, “These are reasons that could have been stated at some earlier time well before we started this whole process with the jury, but they were not.” The court found Rivera’s reasons inadequate to justify granting the motion. Moreover, granting the motion would have disrupted or further delayed the proceedings. In sum, the Windham factors militated against granting Rivera’s untimely request to represent himself in propria persona. We therefore affirm the trial court’s denial of the Faretta motion as well within the court’s discretion. (ECF No. 11-21 at 5-6.) 20 The state appellate court, like the trial court, found Petitioner’s Faretta motion to be 21 untimely. (See id.; see also RT 50-51, 61.) This finding was reasonable given Petitioner 22 first raised a request to represent himself on the morning of trial, just prior to the 23 commencement of voir dire proceedings. (See RT 50, 61-62.) With respect to the reason 24 for the late request, Petitioner asserts he did not previously know he had a right to self- 25 representation. (ECF No. 1 at 17, citing RT 50.) When the trial court stated: “This case 26 has been pending for 18 months, Mr. Rivera. Why is it that you waited until we started the 27 trial to make your -- make your request for representation?” Petitioner responded: “Why 28 did I? Because he didn’t tell me about I could have represented myself, he told me about 15 20cv1831 GPC (RBM) 1 hiring a lawyer. And I could have went over most of these things after he told me that and 2 I could have asked him for that. Do you know what I’m saying. But he didn’t tell me like 3 how do you say these different options, you know, what I could do as a person.” (RT 50.) 4 The trial court responded: “Well, what I’m required to do when there is a late request, 5 you’re not entitled as a matter of right to represent yourself now that we started trial,” and 6 “I have discretion on whether or not to grant it or deny it,” and then stated: “I need to look 7 at some things including the reasons for the request, the quality of the representation, your 8 prior proclivity to substitute counsel, the stage of the proceedings and the disruption or 9 delay that might be expected as a result of your substituting in.” (RT 50-51.) 10 Upon review, the state court did not act unreasonably in finding Petitioner’s request 11 to represent himself untimely. Even assuming the truth of the stated reason for delay, the 12 request was nonetheless made on the day of trial, when the prospective jurors were 13 assembled and waiting to commence voir dire. (See ECF No. 11-21 at 5) (“Rivera brought 14 his Faretta motion on the morning trial was scheduled to start. As such, the request was 15 not made ‘within a reasonable time prior to commencement of trial.’”) (quotation omitted.) 16 The record also reflects the Faretta request came only after the trial court denied 17 Petitioner’s subsequent requests to relieve counsel and to absent himself from the trial 18 proceedings, both raised and rejected just hours earlier. 2 (See RT 17, 38.) The Ninth 19 Circuit has found the denial of a request made just prior to commencement of trial as 20 untimely, such as Petitioner’s, does not run afoul of section 2254(d)(1). See Stenson v. 21 Lambert, 504 F.3d 873, 884 (9th Cir. 2007) (“We have found that a state court’s denial of 22 a motion made on the morning trial began as untimely was neither contrary to nor an 23 24 25 26 27 28 2 Petitioner indicated disagreement and dissatisfaction with counsel also prompted his Faretta request. In response to the trial court’s inquiry: “So what I’m looking for now first and foremost is your reason for the request, making the request at this time,” Petitioner stated: “Because I can look into certain -- I can ask certain questions that he didn’t go ask. I can ask for certain people to be placed on that bench and he’s not going to want to ask to be placed on that bench,” that “I think I can represent myself a whole lot better,” and “I don’t see him doing what he’s supposed to do to win this case, you know.” (RT 51-52.) 16 20cv1831 GPC (RBM) 1 unreasonable application of clearly established federal law,” and noting “[t]he Supreme 2 Court has never held that Faretta’s ‘weeks before trial’ standard requires courts to grant 3 requests for self-representation coming on the eve of trial.”), citing Marshall, 395 F.3d at 4 1061. As such, the state court’s conclusion Petitioner’s request was untimely was neither 5 contrary to nor an unreasonable application of clearly established law. 6 Nor does Petitioner demonstrate the state court’s decision was based on an 7 unreasonable factual determination in violation of section 2254(d)(2). Again, it is clear 8 from the record the Faretta request was late, as it was made on the morning trial was set to 9 begin and when jury selection was just about to commence. (See RT 50, 61-62.) While 10 Petitioner does not dispute his request was made on the day of trial, he asserts the state 11 court’s decision to deny the request was unfair and unreasonable to the extent it was based 12 on the anticipated delay in the proceedings and his prior substitution of counsel. (See ECF 13 No. 1 at 18-21.) The Court’s review of the record does not support Petitioner’s contentions. 14 Petitioner first contends the state court unreasonably concluded he requested or 15 required a continuance to proceed given he “never sought a delay in the proceedings” but 16 instead “only asked to be provided with the discovery before he started trial.” (ECF No. 1 17 at 19.) Petitioner asserts that “[a]ny delay would have been attributable to [] counsel’s 18 request for time to redact identifying information from the ‘secondary material’ in order to 19 ‘protect his backside’ from criminal and/or civil liability.” (Id.) (citations omitted.) The 20 state appellate court found “granting the motion would have disrupted or further delayed 21 the proceedings,” (see ECF No. 11-21 at 6), but did not attribute the potential delay solely 22 to Petitioner nor did the state court indicate Petitioner specifically requested a continuance. 23 Instead, the state court simply stated: “Rivera was not ready for trial, and he would need a 24 continuance to obtain certain discovery from appointed counsel” and “Rivera reiterated he 25 was not ready to start trial that day.” (Id. at 3.) These factual findings are supported by 26 the Court’s review of the record. When the trial court noted Petitioner had not received 27 some of the discovery and stated: “we’re going to have to delay these proceedings because 28 you’re not ready,” Petitioner responded: “No, I’m not ready until he gives me that,” to 17 20cv1831 GPC (RBM) 1 which the trial court then remarked: “Well, okay, then you’re not ready, which means we’d 2 have to continue the case.” (RT 53.) Later in the discussion, the trial court and Petitioner 3 had the following exchange: 4 The Court: If I let you represent yourself are you ready to do this case right now with this jury? The Defendant: I’m not because he doesn’t have that blotched out. The Court: Okay, then you would require a continuance. 5 6 7 8 (RT 57.) As Petitioner repeatedly indicated he was not prepared to start trial that day, it 9 was not unreasonable for the trial court to determine a continuance would have been 10 necessary in the event it granted Petitioner’s Faretta request, nor was it unreasonable for 11 the state appellate court to similarly determine “granting the motion would have disrupted 12 or further delayed the proceedings.” (See ECF No. 11-21 at 6.) It is apparent that 13 regardless of the cause for the anticipated delay, a continuance would have been needed 14 had the Faretta request been granted because Petitioner made the request to represent 15 himself on the day of trial and was not ready to start trial that day. Petitioner fails to show 16 the state court decision was based on an unreasonable factual determination in this respect. 17 To the extent Petitioner contends the state court unreasonably found he was using 18 the Faretta request for the purposes of delay or as an obstructionist tactic without record 19 support for such a conclusion (see ECF No. 1 at 19), the Court finds no indication the state 20 court made any such finding. Upon review, the state appellate court did not attribute any 21 such motive to Petitioner’s self-representation request, but instead simply noted the late 22 timing of the request, stating “[b]y the time Rivera brought his Faretta motion, the 23 proceedings had been ongoing for 18 months,” and that “granting the motion would have 24 disrupted or further delayed the proceedings.” (ECF No. 11-21 at 5-6.) The trial court 25 similarly noted the lateness of the request and cited the anticipated delay were the request 26 granted but did not indicate or opine Petitioner intended to obstruct or delay the 27 proceedings in pursing self-representation. Instead, the trial court remarked and concluded: 28 “This case is 18 months old, and there is -- there is a disruption or delay that is inherent in 18 20cv1831 GPC (RBM) 1 the granting [] of [] this motion because you’re not ready to go to trial at this point. That I 2 would have to grant that and that is much more of a disruption or delay than is justified 3 under the circumstances; and, so, the motion to proceed in pro per is denied.” (RT 62.) 4 With respect to the reasonableness of the state court’s factual findings concerning 5 Petitioner’s prior substitution of trial counsel, Petitioner argues “[t]he trial courts [sic] 6 finding that [Petitioner] had a proclivity to substitute counsel was also unfounded, and 7 unfair” and points out that retained counsel “voluntarily quit” independent of any action 8 by Petitioner. (ECF No. 1 at 20.) Petitioner also notes that two of his attorneys were from 9 the Public Defenders office and he “had no control over the fact that they both appeared on 10 his behalf during the course of the case,” and “he did not substitute them.” (Id.) The trial 11 record reflects the court acknowledged Petitioner’s assertion he did not know why one 12 public defender was taken off the case and replaced by another, as well as that his retained 13 counsel was not fired but quit. (RT 54.) To Petitioner’s statement that: “You know so 14 these problems were not my doing,” the trial court replied: “No, no, I’m not saying they 15 are,” but pointed out that Petitioner failed to raise the matter anytime in the prior weeks but 16 instead waited until a day when the “jury is here,” and “[w]e’re impaneling a jury.” (Id.) 17 In rendering its decision denying the Faretta request, the trial court mentioned Petitioner’s 18 “prior proclivity to substitute counsel” among the factors to consider, but also 19 acknowledged the lack of clarity concerning the reasons for the substitutions, stating “I 20 don’t know if you fired [prior counsel], he withdraw [sic] or exactly what the ins and outs 21 of that are, but you’ve gone through four attorneys including [present counsel] at this point 22 so there is a proclivity to substitute counsel.” (RT 61.) Because the record clearly shows 23 Petitioner indeed had been represented by four different defense counsel during the 24 pendency of his case (see e.g. RT 54), this finding was not unreasonable. 25 The state appellate court also clearly and accurately noted Petitioner’s history with 26 counsel consistent with Petitioner’s present assertion, as the account of the trial court 27 proceedings included a mention that “[t]he court stated Rivera had had four attorneys, 28 including one retained counsel, who had quit representing him” while also specifically 19 20cv1831 GPC (RBM) 1 acknowledging “Rivera clarified that one of the attorneys was retained counsel who had 2 terminated representation on his own.” (ECF No. 11-21 at 3-4.) In evaluating the propriety 3 of the trial court’s decision to deny Petitioner’s Faretta request and the trial court’s finding 4 that “Rivera’s proclivity to substitute counsel weighed in favor of denying Rivera’s Faretta 5 motion,” the state appellate court also again specifically recognized “[t]he court pointed 6 out Rivera had had four different attorneys, although it acknowledged Rivera’s assertion 7 that retained counsel had quit and was not fired by him.” (Id. at 5-6.) 8 This factual recitation appears accurate based on the Court’s review of the record 9 and appears consistent with Petitioner’s assertion that his retained counsel quit and had not 10 been substituted or fired by Petitioner. The fact remains that for whatever reason, 11 Petitioner had been represented by four trial counsel during his case. Even accepting 12 Petitioner’s assertion he did not control the fact that two public defenders had appeared on 13 his behalf and that retained counsel quit of his own volition, that still leaves the fact that 14 Petitioner substituted or at least attempted to substitute counsel at least twice during the 15 pendency of his case, the first time in replacing the public defender with retained counsel 16 (see RT 54), and the second time in unsuccessfully attempting to remove the fourth and 17 most recent counsel through Marsden motion on the day trial was set to begin (see RT 17), 18 just prior to his request to represent himself. Based on this record, the state court was 19 neither incorrect nor unreasonable in finding the facts showed Petitioner had a proclivity 20 to substitute counsel. The Court finds no error in this respect, much less an unreasonable 21 factual determination on the matter such that the state court’s decision could potentially be 22 in violation of section 2254(d)(2). 23 Because Petitioner fails to demonstrate the state court determination was contrary 24 to, or an unreasonable application of, clearly established federal law, or that it was based 25 on an unreasonable determination of the facts, habeas relief is unavailable. 26 V. EVIDENTIARY HEARING/APPOINTMENT OF COUNSEL REQUESTS 27 Petitioner requests an evidentiary hearing on his Faretta claim. (ECF No. 1 at 21.) 28 Here, because regardless of whether Petitioner is entitled to equitable or statutory tolling 20 20cv1831 GPC (RBM) 1 sufficient to render his Petition timely, this claim is without merit and habeas relief is not 2 warranted based on the Court’s review of the record, an evidentiary hearing is unnecessary. 3 See e.g. Totten v. Merkle, 137 F.3d 1172, 1176 (9th Cir. 1998) (“[A]n evidentiary hearing 4 is not required on issues that can be resolved by reference to the state record.”) 5 In addition to requesting an evidentiary hearing and a grant of habeas relief, 6 Petitioner also requests “appointing the defendant, Petitioner Mr. Rivera, an attorney, in 7 the fundamental interest of justice.” (ECF No. 1 at 21.) District courts are provided with 8 statutory authority to appoint counsel in a federal habeas case when a petitioner is 9 financially eligible and “the court determines that the interests of justice so require.” 18 10 U.S.C. §3006A(a)(2)(b). However, because regardless of the outcome of the statutory and 11 equitable tolling analyses, it is clear Petitioner’s sole claim clearly fails on the merits and 12 does not warrant habeas relief, and because it is plain from the pleadings Petitioner is able 13 to cogently state his claim and arguments without the assistance of counsel, the Court finds 14 the interests of justice do not necessitate appointment of counsel in this case. See e.g. 15 Chaney v. Lewis, 801 F.2d 1191, 1196 (9th Cir. 1986) (“Indigent state prisoners applying 16 for habeas corpus relief are not entitled to appointed counsel unless the circumstances of a 17 particular case indicate that appointed counsel is necessary to prevent due process 18 violations.”) (citations omitted); see also LaMere v. Risley, 827 F.2d 622, 626 (9th Cir. 19 1987) (district court did not abuse discretion is declining to appoint counsel where “district 20 court pleadings illustrate to us that [the petitioner] had a good understanding of the issues 21 and the ability to present forcefully and coherently his contentions.”) 22 VI. CERTIFICATE OF APPEALABILITY 23 A petitioner may not appeal “the final order in a habeas corpus proceeding in which 24 the detention complained of arises out of process issued by a State court” except where “a 25 circuit justice or judge issues a certificate of appealability.” 28 U.S.C. § 2253(c)(1)(A). 26 “The district court must issue or deny a certificate of appealability when it enters a final 27 order adverse to the applicant.” Rules Governing § 2254 Cases, Rule 11(a), 28 U.S.C.A. 28 foll. § 2254. “A certificate of appealability should issue if ‘reasonable jurists could debate 21 20cv1831 GPC (RBM) 1 whether’ (1) the district court’s assessment of the claim was debatable or wrong; or (2) the 2 issue presented is ‘adequate to deserve encouragement to proceed further.’” Shoemaker v. 3 Taylor, 730 F.3d 778, 790 (9th Cir. 2013), quoting Slack v. McDaniel, 529 U.S. 473, 484 4 (2000). This includes a district court’s decision on a procedural issue. See Buck v. Davis, 5 580 U.S. ___, 137 S.Ct. 759, 777 (2017) (“[A] litigant seeking a COA must demonstrate 6 that a procedural ruling barring relief is itself debatable among jurists of reason; otherwise, 7 the appeal would not ‘deserve encouragement to proceed further.’”), quoting Slack, 529 8 U.S. at 484. 9 In this instance, the Court finds issuing a certificate of appealability is not 10 appropriate as reasonable jurists would not find debatable or incorrect the Court’s 11 conclusion (1) that habeas relief is not warranted on the sole claim in the federal Petition 12 or (2) that Petitioner is not entitled to statutory or equitable tolling, nor does the Court find 13 any of the issues presented deserve encouragement to proceed further. See 28 U.S.C. 14 2253(c); Slack, 529 U.S. at 484. 15 appealability. 16 VII. CONCLUSION AND ORDER Accordingly, the Court DENIES a certificate of 17 For the reasons discussed above, the Court DENIES the Petition for a Writ of 18 Habeas Corpus, DENIES Petitioner’s requests for an evidentiary hearing and for 19 appointment of counsel and DENIES a Certificate of Appealability. 20 IT IS SO ORDERED. 21 22 Dated: June 15, 2021 23 _______________________________________ 24 Hon. Gonzalo P. Curiel United States District Judge 25 26 27 28 22 20cv1831 GPC (RBM)
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