Friday, July 06, 2018

Tamplin v. Muniz, No. 16-15832 (Fletcher with Kronstadt (CD Cal); dissent by Hawkins) --- A divided panel of the Ninth Circuit reversed the denial of a California state prisoner's § 2254 petition, holding that the trial court did not honor his right to self-representation under Faretta v. California, 422 U.S. 806 (1975), and that the state courts did not reasonably reject this claim. Judge Hawkins would have affirmed because of the AEDPA limitation on relief, but might have reversed if this case were on direct review. The petitioner was convicted in a California state court of being a felon in possession of a firearm and sentenced under California's three-strikes law to 45 years to life. On direct appeal, the conviction was affirmed but the sentence was reduced to 25 years to life. 

The petitioner was initially assigned a public defender, but was then allowed to represent himself. He asked for "assistant counsel," but the trial judge denied that request. He represented himself for about four months until, about a month before trial, he retained counsel. But retained counsel never ultimately entered a formal appearance in the case because he was suspended by the state bar two days after the petitioner retained him. In response to this disciplinary action, the trial judge asked the petitioner how he wanted to proceed; the petitioner said he wanted to continue to represent himself. The trial judge tried to clarify whether the petitioner wanted the assistance of counsel in light of his attempt to retain counsel, and after a discussion, the petitioner said, "I'm representing me now." Six days before trial, the petitioner said he was not ready to proceed because he wanted to file more pretrial motions. Under the circumstances, including the impending trial date, the trial judge forced the petitioner to accept the services of the same public defender that he had earlier discharged. Once counsel was reappointed, the trial judge put off the trial for six months to allow counsel to prepare.  

On direct appeal, appointed counsel did not raise a Faretta claim. In state habeas proceedings, the superior court denied the claim that appellate counsel was ineffective for failing to raise the Faretta claim because it ruled that the Faretta claim lacked merit. The petitioner's request to represent himself was not unequivocal, the state habeas court said, because he tried to retain counsel. And in any event, the state habeas court said, the petitioner waived his Faretta right by acquiescing in the trial judge's decision to reappoint the public defender during the six-month continuance that was ultimately granted. The state appellate courts denied habeas relief without comment. The federal district court denied a habeas petition as well. 

The majority held that the reasons that the state habeas court advanced for denying the Faretta claim were contrary to clearly established law. The petitioner's request for self-representation was unequivocal, the majority said, identifying seven discrete requests during a critical pretrial hearing and two direct accusations from the petitioner that the trial judge was violating his rights by forcing him to accept the assistance of counsel. The trial judge's reliance on the petitioner's lack of legal knowledge or skill was irrelevant under Faretta, because it was clear that the petitioner understood the "dangers and disadvantages" of representing himself. And because the petitioner's request was unequivocal, his supposed acquiescence in the trial judge's decision to force him to accept the public defender was also immaterial under Faretta. The state habeas court's reliance on a published decision of the California Court of Appeal was misplaced, because the opinion read Faretta out of context.  

On appeal to the Ninth Circuit, the state argued that the state court's rejection of the Faretta claim was reasonable because the petitioner did not timely request to represent himself. The level of deference required under AEDPA on this argument was the subject of the dispute between the Ninth Circuit judges. The majority said that no deference was required because the last reasoned state court decision did not address it; Judge Hawkins in dissent reasoned that the state habeas court's decision was not overall unreasonable because the petitioner tried to hire counsel shortly before the trial was scheduled to begin (that is, before the judge gave the public defender that six-month continuance), and that the fact that this issue was debatable on this record required AEDPA deference. On de novo review, the majority concluded that the petitioner timely invoked his right to self-representation because he did so shortly after the case was filed, the fact that the lawyer he hired was quickly suspended from practice meant that he never truly retained counsel, and that under the circumstances even a "renewed" request for self-representation made two weeks before trial was timely. 

Because the state habeas court did not review the deficient-performance prong of the petitioner's appellate IAC claim at all, the Ninth Circuit reviewed it de novo. It found that appellate counsel's failure to raise the Faretta issue on direct appeal was deficient in light of appellate counsel's declaration that he did not correctly understand how the petitioner had tried to invoke his Faretta right throughout the pretrial proceedings. Accordingly, the majority credited appellate counsel's assertion that there was no tactical reason for failing to raise the Faretta issue on direct appeal. 

The decision is here:


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