Michael Patton v. Deborah Asuncion

[7] 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA [10] 11 MICHAEL PATTON, Case No. CV 17-0181 CJC (PVC) 12 Petitioner, ORDER ACCEPTING FINDINGS, 13 v. CONCLUSIONS AND RECOMMENDATIONS OF UNITED 14 DEBORAH ASUNCION, Warden, STATES MAGISTRATE JUDGE 15 Respondent. [16] 17 Pursuant to 28 U.S.C. § 636 , the Court has reviewed the Second Amended Petition, 18 all the records and files herein, the Report and Recommendation of the United States 19 Magistrate Judge, and Petitioner’s Objections. After having made a de novo 20 determination of the portions of the Report and Recommendation to which Objections 21 were directed, the Court concurs with and accepts the findings and conclusions of the 22 Magistrate Judge. [23] 24 Petitioner’s Objections largely reassert prior arguments that were addressed and 25 rejected in the Report and Recommendation. However, two contentions warrant brief 26 attention. Petitioner asserts that the Magistrate Judge misconstrued Ground Fourteen, in 27 which he claimed that he was denied the right to represent himself in violation of Faretta 28 v. California, 422 U.S. 806, 832 (1975). (Obj. at 4). According to Petitioner, that claim 1 did not concern the denial of law library access after he was granted pro per status in 2 December 2014, i.e., following his conviction but prior to sentencing, as the Magistrate 3 Judge had surmised. (Id.). Instead, Petitioner contends that the claim was based on the 4 trial court’s denial of his request to represent himself “way before” that time, “almost at 5 the end of the public defender representation.” (Id.). [6] 7 Although not expressly cited by Petitioner, a minute order in the Clerk’s Transcript 8 reflects that on April 28, 2014, after the commencement of trial proceedings at 2:21 p.m., 9 with a panel of fifty-five prospective jurors present in the courtroom, Petitioner’s counsel 10 informed the court at a side bar that Petitioner wanted to represent himself, but could not 11 announce that he was ready for trial that day. (1 CT 161). While the prospective jurors 12 were completing a voir dire questionnaire outside of the courtroom, the court denied 13 Petitioner’s request to proceed pro per as untimely. (Id.). After submitting their 14 questionnaires, the prospective jurors were ordered to return to the courtroom at 3:20 15 p.m., when voir dire began. (Id.). Jury selection continued the following morning at 16 10:45 a.m. (1 CT 162, 167). After the lunch recess, Petitioner’s public defender 17 announced a conflict of interest because her office was representing the victim in a 18 separate pending action and had previously represented the victim on five separate 19 occasions, and the court declared a mistrial. (1 CT 166; 2 RT A-9 - A-10). The Court 20 appointed panel counsel to represent Petitioner. (2 RT A-11). Petitioner’s trial with new 21 counsel began on September 17, 2014, (2 RT 301), and concluded on September 23, 2014 22 with his conviction. (2 RT 1512). Petitioner does not appear to have renewed his request 23 to represent himself until December 3, 2014, which was granted, with Petitioner’s panel 24 counsel appointed as standby counsel. (2 CT 316). Petitioner, proceeding pro per, was 25 sentenced that same day. (2 CT 320). [26] 27 A criminal defendant has a Sixth Amendment right to conduct his own defense. 28 See Faretta, 422 U.S. at 832 . However, as “Faretta itself and later cases have made 1 clear[,] the right of self-representation is not absolute.” Indiana v. Edwards, 554 U.S. 2 164, 171 (2008). For a request to waive the right to counsel to be valid, the defendant 3 must be competent and the request must be “timely, not for the purposes of delay, 4 unequivocal, and knowing and intelligent.” United States v. Arlt, 41 F.3d 516, 519 (9th 5 Cir. 1994). The Supreme Court has not specified exactly when a Faretta motion must be 6 made in order to be “timely.” See Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 7 2005). Faretta incorporates an implicit timing element to the extent that the Court found 8 that Faretta’s motion should have been granted, in part, because it was brought “weeks 9 before trial.” Id. at 1060-61 . But beyond finding that a motion brought “weeks before 10 trial” is “timely,” Faretta does not provide any additional guidance on when a motion to 11 represent oneself is timely or untimely, and the Supreme Court has not clarified the issue 12 in subsequent decisions. Accordingly, under AEDPA, “[b]ecause the Supreme Court has 13 not clearly established when a Faretta request is untimely, other courts are free to do so as 14 long as their standards comport with the Supreme Court’s holding that a request ‘weeks 15 before trial’ is timely.” Marshall, 395 F.3d at 1061 (state court did not violate clearly 16 established Supreme Court precedent by concluding that a Faretta motion brought on the 17 first day of trial was untimely); see also Burton v. Davis, 816 F.3d 1132, 1141 (9th Cir. 18 2016) (denial of Faretta request made “three court days before the jury was empaneled” 19 does not “clearly entitle [petitioner] to [habeas] relief”). [20] 21 Here, the trial court’s decision to deny Petitioner’s Faretta motion, brought on the 22 first day of trial, on timeliness grounds plainly comports with Faretta’s implicit “timing 23 element” and does not entitle Petitioner to habeas relief. Marshall, 395 F.3d at 1060 . 24 Furthermore, because the trial court declared a mistrial the day after denying Petitioner’s 25 Faretta motion, Petitioner had approximately four and a half months before trial resumed 26 to renew his Faretta motion, but did not. While a defendant “need not make fruitless 27 motions . . . or refuse to cooperate with defense counsel” after a judge “has conclusively 28 denied a request to proceed pro se,” Arlt, 41 F.3d at 523 , in these unique circumstances, 1 where the trial court’s sole ground for denying Petitioner’s Faretta motion was that it was 2 untimely, Petitioner’s failure to renew his Faretta motion after trial was continued 3 strongly suggests that Petitioner abandoned his desire to represent himself. [4] 5 Petitioner also claims in his Objections that his ineffective assistance of counsel 6 claims were not limited to trial counsel, but encompassed appellate counsel as well. (Obj. 7 at 6). “[T]he right to effective assistance of counsel is not confined to trial, but extends 8 also to the first appeal as of right.” Kimmelman v. Morrison, 477 U.S. 365 , 378 n.2 9 (1986). The standard for establishing a claim of ineffective assistance of appellate 10 counsel is the same as for trial counsel: the petitioner must show that his appellate 11 counsel was deficient and that the deficient performance prejudiced him. Smith v. 12 Robbins, 528 U.S. 259, 285, 289 (2000); Strickland v. Washington, 466 U.S. 668 , 687 13 (1984); Cockett v. Ray, 333 F.3d 938, 944 (9th Cir. 2003). [14] 15 Petitioner has not identified a single meritorious claim that his appellate counsel 16 failed to raise. Instead, Petitioner cites claims that, as the Court has already explained, are 17 baseless. “Counsel is not required to raise an ‘untenable issue’ on appeal.” Rogovich v. 18 Ryan, 694 F.3d 1094, 1106 (9th Cir. 2012) (citations omitted); see also Wildman v. 19 Johnson, 261 F.3d 832, 840 (9th Cir. 2001) (“[Petitioner] cannot sustain his claim for 20 ineffective assistance of appellate counsel because the issues he raises are without merit”). 21 Accordingly, all of Petitioner’s Objections are overruled. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ [28] 1 IT IS ORDERED that the Petition is denied and Judgment shall be entered 2 || dismissing this action with prejudice. [3] 4 IT IS FURTHER ORDERED that the Clerk serve copies of this Order and the 5 || Judgment herein on Petitioner and counsel for Respondent. [6] 7 LET JUDGMENT BE ENTERED ACCORDINGLY. [8] 9 || Dated: February 24, 2020 “a “yp CORMAC Ji CARNEY UNITED STATES DISTRICT JUDGE