John-Charles v. California

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CURTIS M. JOHN-CHARLES,  No. 09-16530

Petitioner-Appellant, D.C. No.

v.  2:05-cv-00175-

STATE OF CALIFORNIA, MCE-GGH

Respondent-Appellee.

 OPINION

Appeal from the United States District Court

for the Eastern District of California

Morrison C. England, District Judge, Presiding

Argued and Submitted

November 3, 2010—Stanford, California

Filed July 22, 2011

Before: Sidney R. Thomas and Sandra S. Ikuta,

Circuit Judges, and Jane A. Restani, Judge.*

Opinion by Judge Ikuta

*The Honorable Jane A. Restani, Judge of the United States Court of

International Trade, sitting by designation.

9767

9770 JOHN-CHARLES v. CALIFORNIA

COUNSEL

Mark Eibert, Esq., Half Moon Bay, California, for the peti-

tioner.

Barton Bowers, Deputy Attorney General, State of California,

Sacramento, California, for the respondent.

OPINION

IKUTA, Circuit Judge:

Curtis M. John-Charles appeals the district court’s denial of

his federal habeas petition. He raises two claims on appeal.

First, John-Charles challenges the California Court of

Appeal’s rulings that he had no absolute Sixth Amendment

right to the reappointment of counsel after waiving his right

to counsel under Faretta v. California, 422 U.S. 806, 807

(1975), and that the trial court’s abuse of discretion in failing

to reappoint counsel was harmless beyond a reasonable doubt.

Second, John-Charles claims that the California court violated

his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000),

when it used a prior juvenile conviction as a “strike” to

enhance his sentence. Because neither of these decisions “was

contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States,” we affirm the district court’s

JOHN-CHARLES v. CALIFORNIA 9771

denial of John-Charles’s habeas petition. 28 U.S.C.

§ 2254(d)(1).

I

In 2001, the State of California charged John-Charles with

robbery, receipt of stolen property, assault with a firearm, act-

ing in concert (with co-defendant Richard Ward) and entering

an inhabited structure, personal use of a firearm in the com-

mission of a robbery, and being a felon in possession of a fire-

arm. The charges stemmed from a home-invasion robbery

allegedly committed by John-Charles, Ward, and two or three

other men, against several individuals living in a duplex in

Sacramento county.

John-Charles was dissatisfied with his defense attorney

during the pretrial stages of his case and accordingly made

three unsuccessful motions to substitute different counsel.1 At

a hearing on November 2, 2001, the trial court once again

denied John-Charles’s motion to substitute different counsel.

John-Charles sought to exercise his rights under Faretta v.

California, which established the constitutional “right to pro-

ceed without counsel when [a defendant] voluntarily and

intelligently elects to do so.” 422 U.S. at 807. The trial court

granted John-Charles’s request to represent himself after a

colloquy in which the trial court ensured his counsel waiver

was knowing and intelligent. At the hearing, the trial court

acknowledged that under California’s speedy trial act, Cal.

Penal Code § 1382, John-Charles was entitled to have his trial

commence on November 5, 2001, but determined there was

good cause to extend the speedy trial deadline to November

27, 2001; the court subsequently extended the deadline to

December 26, 2001, and then to January 3, 2002.

1

These motions are dubbed “Marsden motions” in California courts, a

name which derives from People v. Marsden, 465 P.2d 44 (Cal. 1970),

which set forth the governing state-law framework for considering a

defendant’s request to substitute counsel.

9772 JOHN-CHARLES v. CALIFORNIA

On January 3, 2002, the date set for voir dire and the com-

mencement of trial, John-Charles asked the court to reappoint

trial counsel, because he was bewildered by the jury selection

process and motions arguments. The court denied his request

because John-Charles had waited to raise it “until the last

minute,” the court did not want to continue the case while

John-Charles attempted to find counsel, and the court deemed

it impossible for John-Charles to find an attorney who would

step in to represent him on such short notice. The court like-

wise declined to grant John-Charles’s request to appoint an

attorney to help him with jury selection. Because John-

Charles was still dressed in prison garb, the court decided to

delay jury selection until John-Charles was dressed appropri-

ately. In light of the speedy trial issue, however, the court

ruled that because it had already devoted substantial time and

resources to the matter (it had spent the entire day addressing

the parties’ motions), and both the court and litigants were

ready to proceed, the trial of John-Charles and Ward “ha[d]

commenced” as of January 3, 2002.

The prosecution filed an amended information on January

4, 2002, adding Count 5 (assault with a firearm), and the trial

was continued to January 8, 2002. On January 8, the prosecu-

tion filed a second amended information, charging John-

Charles with a prior “strike” stemming from a juvenile con-

viction. On the same day, John-Charles again moved for the

appointment of counsel and a continuance. The court again

denied his motion. Jury selection commenced later that day.

The following day, January 9, 2002, John-Charles made

another request for appointment of counsel, which he styled

as a Marsden motion, saying, “I want to fire myself,” and

explaining that he could not adequately represent himself and

intended to seek a continuance. The court again denied his

request for counsel and a continuance, explaining:

We are in the process of picking a jury for this

[joint] trial[;] [i]t would, in my opinion be extremely

disruptive, to — and not in the best interests of the

JOHN-CHARLES v. CALIFORNIA 9773

administration of justice, certainly, to in effect grant

a severance of these trials with you and [your co-

defendant] Ward and that’s in effect, what would

happen.

John-Charles thereafter continued to represent himself

throughout the guilt phase of his trial and was convicted on

all charges (as was his represented co-defendant, Ward). At

the penalty phase, the trial court found that John-Charles had

a juvenile adjudication of guilt for an offense that qualified as

a strike under California’s three-strikes law. The court accord-

ingly sentenced John-Charles as a second-strike offender.

On direct appeal, John-Charles argued that the trial court’s

refusal to permit him to withdraw his Faretta waiver violated

his Sixth Amendment right to counsel, and that the trial

court’s use of his prior juvenile adjudication to enhance his

sentence violated his Fourteenth Amendment due process

rights.

The California Court of Appeal denied his claims. As the

court explained, under California Supreme Court precedent, a

self-represented defendant who seeks to withdraw his Faretta

waiver after commencement of trial does not have an absolute

right to reinstatement of counsel. See People v. Gallego, 52

Cal. 3d 115, 163-64 (1990); see also People v. Lawley, 27

Cal. 4th 102, 148-49 (2002). Rather, the trial court must exer-

cise its discretion based on a range of factors set forth in Peo-

ple v. Windham, 19 Cal. 3d 121 (1977). Reviewing the trial

court’s denial of John-Charles’s reappointment request under

this standard, the California Court of Appeal held that the trial

court abused its discretion, because there was no evidence that

“the reappointment of counsel would have caused a signifi-

cant delay or disruption of the trial proceedings.” The court

then evaluated the effect of this error. It first noted that it was

not clear under California law whether such errors should be

reviewed for harmlessness beyond a reasonable doubt under

the standard set forth in Chapman v. California, 386 U.S. 18

9774 JOHN-CHARLES v. CALIFORNIA

(1967), or under a less onerous state standard, see People v.

Watson, 46 Cal. 2d 818, 836 (1956) (holding that certain trial

errors are harmless unless there is a reasonable probability

that a different result would have occurred absent the error).

The court did not resolve this issue, because it concluded that

even assuming the Chapman standard applied, the trial court’s

error was harmless beyond a reasonable doubt, given the

overwhelming weight of the evidence against John-Charles on

the robbery, felon-in-possession, and receipt-of-stolen-

property counts,2 and because John-Charles’s co-defendant,

who was represented by counsel, was convicted on the same

charges, in the same trial, before the same jury. The Califor-

nia Supreme Court denied review.

John-Charles petitioned for habeas relief in federal court.

After the district court denied John-Charles’s habeas petition,

he timely filed a notice of appeal.

II

We review John-Charles’s claims through the lens of

AEDPA’s extremely deferential standard of review. “Section

2254(d) is part of the basic structure of federal habeas juris-

diction, designed to confirm that state courts are the principal

forum for asserting constitutional challenges to state convic-

tions.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011).3

2

The California Court of Appeal held that the court’s failure to appoint

counsel was not harmless with respect to the personal use of a firearm

count. The court therefore vacated the firearm-use conviction and

remanded it for retrial. Accordingly, this issue is not before us.

3

Section 2254(d) states:

An application for a writ of habeas corpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted with respect to any claim that was adjudicated on the

merits in State court proceedings unless the adjudication of the

claim—

(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States; or

JOHN-CHARLES v. CALIFORNIA 9775

Under § 2254(d)(1), “[f]ederal habeas relief may not be

granted . . . unless it is shown that the earlier state court’s

decision ‘was contrary to’ federal law then clearly established

in the holdings of th[e Supreme] Court, or that it ‘involved an

unreasonable application of’ such law.”4 Id. at 785 (citations

omitted).

For purposes of § 2254(d)(1), “a state court decision is con-

trary to [the Supreme Court’s] clearly established precedent if

the state court applies a rule that contradicts the governing

law set forth in [Supreme Court] cases or if the state court

confronts a set of facts that are materially indistinguishable

from a decision of th[e] Court and nevertheless arrives at a

result different from [that] precedent.” Lockyer v. Andrade,

538 U.S. 63, 73 (2003) (quoting Williams v. Taylor, 529 U.S.

362, 405-06 (2000)). A state court decision makes an “unrea-

sonable application” of Supreme Court precedent if it “identi-

fies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the

particular [petitioner’s] case.” Williams, 529 U.S. at 407. The

state’s application of the Supreme Court precedent “must be

shown to be not only erroneous, but objectively unreason-

able.” Waddington v. Sarausad, 129 S. Ct. 823, 831 (2009)

(emphasis added) (quoting Middleton v. McNeil, 541 U.S.

433, 436 (2004) (per curiam)) (internal quotation marks omit-

ted).

(2) resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented

in the State court proceeding.

28 U.S.C. § 2254(d).

4

While we are also relieved from AEDPA deference with respect to a

state court decision “based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2), John-Charles has failed to develop any argument on this

front, and thus has waived it. Martinez-Serrano v. INS, 94 F.3d 1256, 1259

(9th Cir. 1996); see Fed. R. App. P. 28(a)(9)(A).

9776 JOHN-CHARLES v. CALIFORNIA

In Harrington, the Supreme Court stressed the deferential

nature of the § 2254(d)(1) standard: “[a] state court’s determi-

nation that a claim lacks merit precludes federal habeas relief

so long as ‘fairminded jurists could disagree’ on the correct-

ness of that decision.” 131 S. Ct. at 786 (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, the more

general the rule being considered, “the more leeway courts

have in reaching outcomes in case-by-case determinations.”

Id. (quoting Yarborough, 541 U.S. at 664) (internal quotation

marks omitted); see also Knowles v. Mirzayance, 129 S. Ct.

1411, 1420 (2009).

Finally, for purposes of § 2254(d)(1), the Supreme Court

precedent at issue must be “clearly established.” The phrase

“clearly established” in § 2254(d)(1) “refers to the holdings,

as opposed to the dicta, of [the Supreme Court’s] decisions as

of the time of the relevant state-court decision.” Lockyer, 538

U.S. at 71 (quoting Williams, 529 U.S. at 412) (internal quota-

tion marks omitted). In two recent cases, the Supreme Court

indicated that a state court’s decision is not contrary to or an

unreasonable application of clearly established Supreme

Court precedent unless that precedent is closely on point. See

Wright v. Van Patten, 552 U.S. 120, 125 (2008) (holding that

the state court’s decision was not an unreasonable application

of Supreme Court precedent where no Supreme Court deci-

sion “squarely addresses the issue” in the case or gives a

“clear answer to the question presented”); Carey v. Musladin,

549 U.S. 70, 77 (2006). In deriving a rule from these deci-

sions, we explained that “[t]he common thread in all these

cases is that when there is a principled reason for the state

court to distinguish between the case before it and Supreme

Court precedent, the state court’s decision will not be an

unreasonable application of clearly established Supreme

Court law.” Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir.

2010) (en banc).

III

Mindful of these principles, we turn to John-Charles’s chal-

lenge to the state court’s ruling on his Sixth Amendment

JOHN-CHARLES v. CALIFORNIA 9777

claim, specifically, that John-Charles was erroneously forced

to go to trial without an attorney, that his Sixth Amendment

rights were thereby violated, and that such a violation is a

structural error requiring reversal.

A

[1] Supreme Court decisions have long established the

principle that the Sixth Amendment guarantees an indigent

criminal defendant the appointment of counsel for his defense

at all critical stages of his prosecution, Gideon v. Wainwright,

372 U.S. 335, 344 (1963), and that a governmental violation

of this right is “structural error” that demands automatic

reversal of the defendant’s underlying conviction, United

States v. Gonzalez-Lopez, 548 U.S. 140, 148-49 (2006). On

the other hand, the Supreme Court has also recognized that a

defendant has the reciprocal constitutional right to “proceed

without counsel when he voluntarily and intelligently elects to

do so,” Faretta, 422 U.S. at 807, and has acknowledged the

tension between these two reciprocal rights, see id. at 832-35;

see also United States v. Gerritsen, 571 F.3d 1001, 1007 (9th

Cir. 2009) (noting that “[a] defendant therefore has two cor-

relative and mutually exclusive Sixth Amendment rights: the

right to have counsel, on one hand, and the right to refuse

counsel and represent himself, on the other”). Once a defen-

dant has exercised the Sixth Amendment right to proceed pro

se, the defendant necessarily foregoes the reciprocal Sixth

Amendment “right to counsel at all ‘critical stages’ of the

criminal process.” Iowa v. Tovar, 541 U.S. 77, 87 (2004).

Under AEDPA, the question for us is whether Faretta or any

other decision constitutes clearly established Supreme Court

precedent governing a self-represented defendant’s request for

reappointment of counsel after the defendant has made a valid

Faretta waiver of the right to counsel established in Gideon.

[2] A review of the majority and dissenting opinions in

Faretta makes clear that the Court did not directly address

whether and under what conditions a defendant who validly

9778 JOHN-CHARLES v. CALIFORNIA

waives his right to counsel has a Sixth Amendment right to

reassert it later in the same stage of his criminal trial. The

majority in Faretta did not discuss the question at all, and the

dissent expressly flagged the matter as one unaddressed by

the majority, stating that the Court’s decision “leaves open a

host” of questions, including whether a defendant who has

made an election to proceed by counsel or pro se must “be

allowed to switch in midtrial.” Faretta, 422 U.S. at 852

(Blackmun, J., dissenting). Since Faretta, the Court has

remained silent on this question. Therefore, no “specific legal

rule” on this issue has been “squarely established by th[e]

Court,” Harrington, 131 S. Ct. at 786 (quoting Knowles, 129

S. Ct. at 1413-14) (internal quotation marks omitted); cf. Mur-

doch, 609 F.3d at 994 (quoting Earp v. Ornoski, 432 F.3d

1158, 1185 (9th Cir. 2005)) (holding that a constitutional

principle is not clearly established where the Supreme Court

has expressly concluded that the issue is an “open question”),

and Faretta thus is not “clearly established” Supreme Court

precedent for purposes of John-Charles’s claim that he is con-

stitutionally entitled to the reappointment of counsel.

Notwithstanding the Supreme Court’s silence on the spe-

cific issue at hand, we must also consider whether a state

court’s denial of a request for reappointment of counsel after

a Faretta waiver constitutes an unreasonable application of

the general principles enunciated in Gideon and Faretta. The

Supreme Court has held that even a general standard “may be

applied in an unreasonable manner”; a state court does so

when no “reasonable interpretation of the controlling

[Supreme Court] standard” can “support [the state court’s]

legal ruling.” Panetti v. Quarterman, 551 U.S. 930, 953

(2007). In conducting this inquiry, however, we are mindful

that the more general the rule being considered, “the more

leeway courts have in reaching outcomes in case-by-case

determinations.” Harrington, 131 S. Ct. at 786 (quoting Yar-

borough, 541 U.S. at 664) (internal quotation marks omitted).

[3] As noted above, the California Court of Appeal here

reasoned that although John-Charles initially had an absolute

JOHN-CHARLES v. CALIFORNIA 9779

Sixth Amendment right to counsel per Gideon, he did not

have an absolute, constitutional right to the reinstatement of

counsel after his Faretta waiver. In the course of explaining

its decision, the Court of Appeal noted that “it is not the court

which deprived [John-Charles] of the assistance of counsel

but [rather his] own considered decision to exercise his con-

stitutional right under Faretta to represent himself at trial.”

There are several reasons why the conclusion that there is no

absolute right to reinstatement of counsel after a Faretta

waiver is within “the range of reasonable applications” of

Gideon and Faretta. Harrington, 131 S. Ct. at 788. First, as

we have already said, no Supreme Court case provides any

tailored guidance on what a court should do in such a situa-

tion, and thus a state court could reasonably conclude that a

defendant has no absolute right to reverse course once the

defendant has knowingly and voluntarily waived the right to

counsel. Indeed, the solemn procedural protections required

by Faretta for a defendant seeking to make such a waiver

suggest the gravity of the defendant’s election. See Faretta,

422 U.S. at 835 (declaring that defendant “should be made

aware of the dangers and disadvantages of self-representation,

so that the record will establish that ‘he knows what he is

doing and his choice is made with eyes open’ ” (quoting

Adams v. United States ex rel. McCann, 317 U.S. 269, 279

(1942)).

More important, it is apparent that a “fairminded” jurist

could agree with the state court’s conclusion that Gideon and

Faretta do not require reappointment of counsel after an ini-

tial waiver of the right, Harrington, 131 S. Ct. at 786 (quoting

Yarborough, 541 U.S. at 664) (internal quotation marks omit-

ted), because our own cases have reached the same conclusion

on this issue. See, e.g., Menefield v. Borg, 881 F.2d 696, 700

(9th Cir. 1989) (recognizing that “the right to counsel—once

waived—is no longer absolute”); see also Robinson v. Igna-

cio, 360 F.3d 1044, 1056 (9th Cir. 2004) (noting that “the

Supreme Court has made it clear that once a defendant has

made such a waiver, he must bear the consequences without

9780 JOHN-CHARLES v. CALIFORNIA

complaint though he conducted his own defense to his own

detriment”). We recently applied this principle in a case simi-

lar to John-Charles’s. See McCormick v. Adams, 621 F.3d

970, 980 (9th Cir. 2010). In McCormick, a defendant who

waived his right to counsel changed his mind halfway through

trial, and asked for a continuance to locate counsel who could

help him. Id. at 973. The trial court denied the defendant’s

request, and he was convicted. Id. at 973-74. On appeal, the

state appellate court held that “even assuming that McCor-

mick had made a mid-trial request for the appointment of

counsel,” the trial court had not abused its discretion in refus-

ing the request. Id. at 974. In denying McCormick’s habeas

petition, we held that the state court’s decision was not “con-

trary to, or an unreasonable application of, clearly-established

federal law,” id. at 980, and relied on Supreme Court deci-

sions holding that trial courts have broad discretion to deny a

request for a continuance even if the defendant “is compelled

to defend without counsel,” id. (quoting Ungar v. Sarafite,

376 U.S. 575, 589 (1964)) (internal quotation marks omitted).

We also noted our earlier conclusion that “[t]here are times

when the criminal justice system would be poorly served by

allowing the defendant to reverse his course at the last minute

and insist upon representation by counsel.” Id. (alteration in

original) (quoting Menefield, 881 F.2d at 700).

[4] Furthermore, our conclusion that the Sixth Amendment

right to counsel is not absolute once it has been waived is con-

sistent with the decisions of four other circuits. See United

States v. Leveto, 540 F.3d 200, 207 (3d Cir. 2008); United

States v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993);

United States v. West, 877 F.2d 281, 286 (4th Cir. 1989);

United States v. Solina, 733 F.2d 1208, 1211-12 (7th Cir.

1984).

[5] Given our rulings in Menefield and McCormick, and

the similar holdings of four other Courts of Appeals, it is clear

that “fairminded jurists” could conclude that there is no abso-

lute, constitutional right to reappointment of counsel after a

JOHN-CHARLES v. CALIFORNIA 9781

Faretta waiver. Moreover, a state court could make a princi-

pled distinction between Gideon’s general standard and the

factual scenario here, where a defendant has waived the right

to counsel established by Gideon. See Murdoch, 609 F.3d at

994. Accordingly, we must reject John-Charles’s argument

that the California Court of Appeal’s conclusion was contrary

to or an unreasonable application of Supreme Court prece-

dent.

B

John-Charles presses the further point that he is entitled to

habeas relief because the California Court of Appeal held that

the trial court’s refusal to reappoint counsel was an abuse of

discretion, and any such error in reappointing counsel is per

se a structural error.

We disagree; in fact, John-Charles’s position lacks even a

toehold in clearly established Supreme Court precedent. As

discussed above, no Supreme Court authority holds that a

defendant has a constitutional right to post-Faretta reappoint-

ment of counsel once trial proceedings have commenced.

Given this landscape, bounded only by the requirement to rea-

sonably apply the general principles of Gideon and Faretta,

state courts could reasonably decide to vest the reappointment

decision in the trial judge’s discretion, prescribe a test for

guiding that discretion, and establish a framework for review-

ing errors in trial courts’ application of that framework in par-

ticular cases. A state court’s decision to do any or all of these

things would not be contrary to, or an unreasonable applica-

tion of, clearly established Supreme Court precedent.

[6] In short, the Supreme Court has not clearly articulated

a constitutional right to post-Faretta reappointment of counsel

during trial. It has not defined the standard of review that

should apply to trial courts’ handling of such issues. And it

has not spoken on whether a trial court’s error in ruling on a

reappointment request is structural or trial error. This silence

9782 JOHN-CHARLES v. CALIFORNIA

compels us to defer to the state court’s reasonable attempts to

fill the void. Even if we would have interpreted Sixth Amend-

ment requirements differently than the California courts, we

cannot say the state court’s analysis is objectively unreason-

able. See Harrington, 131 S. Ct. at 785. Accordingly, we con-

clude that the California Court of Appeal’s decision here (i.e.,

that the trial court’s error was harmless beyond a reasonable

doubt) is not contrary to or an unreasonable application of

clearly established Supreme Court precedent.

John-Charles’s reliance on Ninth Circuit precedent, specifi-

cally Menefield and Robinson, is unavailing. In Menefield, we

held that a state trial court erred in refusing to reappoint coun-

sel for a self-represented defendant who made a post-trial

request for assistance of counsel, and suggested (without

holding) that the erroneous denial of the right to counsel at a

post-trial hearing required automatic reversal. See 881 F.2d at

701 n.7 (noting that the parties did not dispute that when a

Sixth Amendment violation pervades a post-conviction hear-

ing, that post-conviction decision must be automatically

reversed.). Because Menefield was a pre-AEDPA case, we

analyzed the petitioner’s claim de novo, and did not address

the question whether there is clearly established Supreme

Court precedent detailing the Sixth Amendment rights of a

defendant who seeks to withdraw an earlier, valid Faretta

waiver. Given the material differences in its factual and pro-

cedural posture, Menefield cannot control our AEDPA analy-

sis.

In Robinson, a post-AEDPA decision, we concluded that

for purposes of habeas review, “clearly established Federal

law” holds that a defendant has a Sixth Amendment right to

counsel for purposes of a sentencing proceeding, even if the

defendant validly waived his right to counsel at the trial stage

of his criminal prosecution, 360 F.3d at 1059, and that a viola-

tion of that right was structural error, such that re-sentencing

was required, id. at 1061. In reaching this conclusion, we

relied on our own precedent, as well as that of four other cir-

JOHN-CHARLES v. CALIFORNIA 9783

cuits, even though the Supreme Court itself had not (and still

has not) ever spoken to the issue. Id. at 1058-59. Even if this

mode of AEDPA analysis could survive after Musladin, Van

Patten, and our own en banc decision in Murdoch, Robinson

is not on point. Robinson expressly limited its holding to the

situation where a Faretta defendant seeks to reassert a right

to counsel for a separate, subsequent sentencing proceeding.

Id. at 1059 (holding that it is “clearly established Federal law”

that “a defendant who has waived his right to counsel may

nonetheless re-assert that right for the purposes of a sentenc-

ing proceeding”). Because Robinson did not purport to

address the question whether a self-represented defendant has

a right to reappointment of counsel once trial proceedings

have begun, rather than during a subsequent proceeding, see

id. at 1058 (“[There is] a substantial practical distinction

between delay on the eve of trial and delay at the time of a

post-trial hearing.” (quoting Menefield, 881 F.2d at 700-01)),

the case does not represent clearly established Supreme Court

precedent governing the “novel factual context” at issue here,

Van Patten, 552 U.S. at 125.

[7] For the reasons outlined above, we conclude that the

California Court of Appeal’s determination was not contrary

to or an unreasonable application of clearly established

Supreme Court precedent, and we therefore affirm the district

court’s denial of John-Charles’s Sixth Amendment claim.

§ 2254(d)(1).

IV

John-Charles also claims that the California Court of

Appeal violated clearly established Federal law when it relied

on his prior juvenile conviction to enhance his sentence

beyond the statutory maximum. He claims that the state

court’s opinion is an unreasonable application of Apprendi

and United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001).

Apprendi held that “[o]ther than the fact of a prior conviction,

any fact that increases the penalty for a crime beyond the pre-

9784 JOHN-CHARLES v. CALIFORNIA

scribed statutory maximum must be submitted to a jury, and

proved beyond a reasonable doubt.” Apprendi v. New Jersey,

530 U.S. 466, 490 (2000); see also Almendarez-Torres v.

United States, 523 U.S. 224, 243-44 (1998) (holding that the

fact of a prior conviction need not be proved to a jury beyond

a reasonable doubt in order to be used as a sentence-

enhancing factor). Interpreting Apprendi, Tighe concluded

that, if a prior juvenile conviction did not afford the defendant

the right to a trial by jury, the fact of that juvenile conviction

must be proved to a jury beyond a reasonable doubt if it is to

be used to enhance a defendant’s sentence beyond the statu-

tory maximum. 266 F.3d at 1194-95. It based this conclusion

on the belief that Apprendi’s prior-conviction exception was

“limited to prior convictions resulting from proceedings that

afforded the procedural necessities of a jury trial and proof

beyond a reasonable doubt.” Id. at 1194.

The California Court of Appeal rejected Tighe and con-

cluded that the trial court’s use of John-Charles’s juvenile

conviction was constitutionally sound under Apprendi

because John-Charles received all of the process due him in

that juvenile proceeding (as opposed to in an adult criminal

trial), including “rights to notice, counsel, confrontation and

cross-examination and against self-incrimination,” as well as

the requirement of proof beyond a reasonable doubt.

[8] We have already determined that our holding in Tighe

is not clearly established Federal law for AEDPA purposes.

See Boyd v. Newland, 467 F.3d 1139, 1152 (9th Cir. 2006).

Boyd noted that Tighe had been rejected not only by the Cali-

fornia courts, but also by the Third, Eighth, and Eleventh Cir-

cuits. See id. We concluded that, “in the face of authority that

is directly contrary to Tighe, and in the absence of explicit

direction from the Supreme Court, we cannot hold that the

California courts’ use of Petitioner’s juvenile adjudication as

a sentencing enhancement was contrary to, or involved an

unreasonable application of,” clearly established Supreme

Court precedent. Id.

JOHN-CHARLES v. CALIFORNIA 9785

[9] As John-Charles himself acknowledges, we are bound

by Boyd, and we therefore conclude that the California court

neither contravened nor unreasonably applied clearly estab-

lished Supreme Court precedent when it upheld the trial

court’s use of John-Charles’s juvenile conviction as a strike

that extended his term of imprisonment. § 2254(d)(1); Boyd,

467 F.3d at 1152.

V

The Supreme Court has warned us to avoid applying

AEDPA in a manner that displays “a lack of deference to the

state court’s determination and an improper intervention in

state criminal processes.” Harrington, 131 S. Ct. at 787.

Instead, we must consider “arguments that would otherwise

justify the state court’s result.” Id. As the Court noted,

although Ҥ 2254(d) stops short of imposing a complete bar

on federal court relitigation of claims already rejected in state

proceedings,” it goes no further than is essential to “pre-

serve[ ] authority to issue the writ in cases where there is no

possibility fairminded jurists could disagree that the state

court’s decision conflicts with th[e Supreme] Court’s prece-

dents.” Id. Because we cannot say that all fairminded jurists

would be compelled to hold that the California Court of

Appeal’s determinations were contrary to or an unreasonable

application of clearly established Supreme Court precedent,

we must deny John-Charles’s request for relief.

AFFIRMED.