Rodgers v. Marshall, No. 10-55816 (5-17-12) (Zouhary, D.J.,with Reinhardt and W. Fletcher).
In habeas, the 9th considers whether a petitioner, who at trial had represented himself, can get counsel for a new trial motion. The 9th emphatically holds "yes!" The 9th finds that the period for the filing of a motion for a new trial (post-verdict, pre-sentencing) is a critical stage that still warrants counsel. Here, the petitioner had been convicted of aggravated assault and other offenses, and deemed he needed a lawyer to help him with a new trial. If a defendant had waived counsel, he can still request representation at this stage, and the court must give it due deference. Such a request was made here, but brushed off by the state trial court (the petitioner had vacillated with representation and self-representation over a period of time, and the court was frustrated). Under AEDPA, the state courts' decision denying counsel were unreasonable and contrary to established Supreme Court precedent. Because the right to counsel is fundamental, a showing of prejudice is not required. The case is remanded to allow the filing of a new trial motion with counsel. The petitioner does not get counsel for sentencing because he did not request representation at that stage and proceeded pro per.