Armis Arrendondo v. Dwight Neven

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMIS ARRENDONDO, No. 11-15581

Petitioner-Appellant,

D.C. No.

v. 2:07-cv-01312-

JCM-GWF

DWIGHT NEVEN, Warden;

ATTORNEY GENERAL OF THE STATE

OF NEVADA, OPINION

Respondents-Appellees.

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

July 8, 2013—San Francisco, California

Filed August 18, 2014

Before: Ferdinand F. Fernandez, Richard A. Paez,

and Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon;

Concurrence by Judge Fernandez

2 ARRENDONDO V. NEVEN

SUMMARY*

Criminal Law

The panel affirmed the district court’s (1) denial, on the

merits, of a claim of invalid waiver of the right to counsel and

(2) dismissal as unexhausted of a claim of denial of the use of

compulsory process, in Nevada state prisoner Armis

Arrendondo’s habeas corpus petition pursuant to 28 U.S.C.

§ 2254.

The panel held that it was not unreasonable for the

Nevada Supreme Court to conclude that Arrendondo waived

his right to counsel knowingly and intelligently, where he was

carefully advised of the procedural risks of foregoing

representation of counsel, and also knew of his substantial

penal exposure under the charges already filed. The panel

held that Arrendondo’s claim that his waiver of counsel was

involuntary fails for lack of proof because he has not

established that he was required to choose between

constitutionally inadequate counsel and self-representation.

The panel held that the district court properly dismissed

Arrendondo’s compulsory-process claim as unexhausted, for

failure to present an underlying federal theory, where

Arrendondo argued and cited Nevada state law alone when

he asserted, in the Nevada Supreme Court, that the trial court

erred in refusing him adequate time to produce his witnesses.

The panel concluded that Arrendondo’s failure to bring a

state post-conviction petition raising either his federal

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

ARRENDONDO V. NEVEN 3

compulsory-process claim on the merits, or a claim of

ineffective assistance of appellate counsel with respect to the

compulsory-process issue, bars this court’s consideration of

his compulsory-process claim.

Judge Fernandez concurred in the result, but wrote that he

is not willing to run the risk of unintended consequences that

comes with saying too much, and therefore did not join in the

majority’s divagations and unnecessary assertions.

COUNSEL

Heather Fraley (argued), Assistant Federal Public Defender;

Rene L. Valladares, Federal Public Defender; Paul G. Turner,

Assistant Federal Public Defender; Danice Arbor Johnson,

Research & Writing Specialist, Office of the Federal Public

Defender, Las Vegas, Nevada, for Petitioner-Appellant.

Karen A. Whelan (argued), Deputy Attorney General;

Catherine Cortez Masto, Attorney General, Office of the

Attorney General, Las Vegas, Nevada, for Respondents-

Appellees.

4 ARRENDONDO V. NEVEN

OPINION

BERZON, Circuit Judge:

Armis Arrendondo represented himself against theft

charges at trial and was sentenced under Nevada’s habitual

criminal statute, Nev. Rev. Stat. § 207.010, to two concurrent

life sentences, with the possibility of parole after ten years.

He contested his continued detention via a petition for habeas

corpus under 28 U.S.C. § 2254, and now appeals the district

court’s (1) denial, on the merits, of his claim of invalid

waiver of his right to counsel and (2) dismissal as

unexhausted of his claim of denial of the use of compulsory

process. Compelled by the statutory limits on our habeas

corpus review of state convictions, we affirm.

I.

In September 2003, a Las Vegas homeowner returned

from a vacation in Colorado to find his residence ransacked,

several of his possessions missing, and his Winnebago motor

home gone from its garage. The ensuing investigation led

authorities to Arrendondo. Nevada indicted him on one count

of possession of a stolen vehicle and another of possession of

stolen property. See Nev. Rev. Stat. §§ 205.273, 205.275.

At Arrendondo’s arraignment, he pleaded not guilty. In

the months that followed, several public defenders

represented Arrendondo in pre-trial proceedings. Public

defender Drew Christensen represented him at arraignment.

Several weeks later, at a hearing on Arrendondo’s motion for

release, public defender Delbert Martin entered an

appearance. Public defender Victor Austin was then

appointed to represent Arrendondo, but at several subsequent

ARRENDONDO V. NEVEN 5

calendar calls public defender Lynn Avants appeared instead

of Austin.

Arrendondo grew dissatisfied with the quality of

representation provided him by the public defender’s office.

At the second of the two calendar calls at which Avants

appeared, Arrendondo expressed frustration that he had not

met or been represented in court by Austin, his appointed

lawyer. The court ordered Austin “to be prepared for [t]rial

or another Public Defender will be assigned.”

Approximately two and a half months after his

arraignment, Arrendondo filed a handwritten Motion to

Dismiss Counsel and Appointment of Alternate Counsel. In

it, he alleged that his appointed attorney, “Victor Osten [sic],”

had “refus[ed] or fail[ed] to communicate and/or visit” him

in jail; had routinely missed court dates; and had “failed to

assign an investigator to gather information.” Arrendondo

concluded by stating that “clearly, a conflict of interest now

exist[s] between counsel/client (defendant).” At a subsequent

hearing on the matter, Austin explained that Arrendondo had

not complied with Austin’s request to reveal the names and

addresses of potential witnesses, a representation Arrendondo

disputed. It was this failure to furnish names and addresses,

Austin continued, that explained his unwillingness to appoint

an investigator. Arrendondo, in turn, demanded “competent

counsel to represent me because it just seems like he’s

absent-minded. I tell him one thing and two minutes later he

forgets what I told him.”

The court denied Arrendondo’s motion for new counsel.

Nonetheless, for reasons not apparent from the record, public

defender Kristen M. Lynch replaced Austin as Arrendondo’s

attorney.

6 ARRENDONDO V. NEVEN

Over half a year later Arrendondo filed a second

handwritten Motion to Dismiss Counsel. That motion alleged

that Lynch had missed a court date; had “fail[ed] to file

pretrial motions, writs, or petitions” in support of his case;

and had “refus[ed] or fail[ed] to communicate and/or visit”

Arrenondo in jail. It continued:

Lynch (Public Defender) and others like her

are only interested in railroading the

defendant and/or having the defendant sign a

plea agreement. There is definitely a conflict

of interest here. Its [sic] like having a

nemesis in charge of ensuring that justice is

done. The only fair remedy is to have a state

appointed attorney assigned to this case,

instead of a public defender.

The motion also sought to permit Arrendondo to proceed

pro se.

At a hearing held in response to Arrendondo’s motion, at

which public defender Lynn Avants appeared rather than

Lynch, the court canvassed Arrendondo to determine whether

he sought to waive his right to counsel and, if so, whether he

was doing so knowingly, intelligently, and voluntarily:

Court: . . . . Do you want to represent

yourself or not?

Defendant: I believe, um, I would need

standby counsel.

Court: We don’t do that, in most

instances. This certainly

ARRENDONDO V. NEVEN 7

wouldn’t be one. Maybe in a

murder case I might concede.

I don’t know. I don’t typically

do that.

Defendant: When it comes to posing

viable objections or proper

arguments, you know, an

attorney who’s been practicing

every day, um, obviously

would do a much better job

than myself.

Court: Do you want to let them do

their job or do it yourself?

Defendant: I believe I can prove my

innocence. With the

assistance of counsel, of

course, it will be much easier.

Court: Do you want to go ahead and

let your attorney assist you?

Defendant: Will he be representing me?

Court: Are you the attorney of

record?

Mr. Avants: No. It’s Ms. Lynch.

Court: It’s Ms. Lynch.

Defendant: I cannot. No way.

8 ARRENDONDO V. NEVEN

Court: Let’s get on with it here. Do

you want to represent

yourself?

Defendant: Absolutely.

Court: You don’t have to say

anything more. You’ve made

your decision?

Defendant: Between incompetent counsel

or self-representation?

Court: We don’t have the whole day

to spend here.

....

Court: You prefer to take the

disadvantage of not having full

knowledge of the law and

letting some prosecutor

perhaps take advantage of you

in that regard. Is that your

thinking?

Defendant: This is a situation — it’s

between incompetent counsel,

the ineffective assistance of

counsel.

Court: We’re not getting into that. I

want to know if you want to

represent yourself. I don’t

ARRENDONDO V. NEVEN 9

care why. I want you to

realize you’re up against a lot

of problems here.

Defendant: I have no other choice,

apparently.

The court advised Arrendondo that proceeding pro se was

“unwise”; that he would “have to adhere to the same

procedural rules as the lawyers”; that he could not complain

of ineffective assistance of counsel on appeal; that the state

would be represented by an experienced prosecutor; that he

would not receive special library privileges at the jail; that his

legal ignorance would “give the prosecutor an advantage”;

and that, if he testified, he would have difficulty arguing his

own credibility before the jury. Arrendondo acknowledged

that he understood each of these statements.

The court then outlined the elements of the crimes of

which Arrendondo was accused and inquired as to

Arrendondo’s knowledge of possible defenses. The court

also reviewed the possible penalties carried by a conviction:

Court: You understand the penalties

that are possible here?

Defendant: I believe it carries one to six.

Court: Possession of stolen vehicle is

one to 10 years in prison and

as much as a $10,000 fine.

Possession of stolen property

over $2,500 is one to 10 years

in prison and a $10,000 fine.

10 ARRENDONDO V. NEVEN

If it’s between 250 and 2,500

dollars, I believe it’s a C

felony, which is one to five,

and a $10,000 fine. If it’s

under $250, it’s a

misdemeanor. Do you

understand that?

Defendant: Yes.

The court then found that Arrendondo had “knowingly and

freely and voluntarily waiv[ed]” his right to counsel and

granted his motion to proceed pro se.

Before trial, Arrendondo filed a Notice of Alibi

Witnesses, listing twelve individuals who would allegedly

testify on his behalf. Although Arrendondo included the

addresses and telephone numbers of seven of these witnesses,

he failed to provide full contact information for the rest.

At trial, at least two of Arrendondo’s witnesses did not

appear. Arrendondo did not have their “subpoena returns”

because the subpoenas “went out a little late.” As he

explained, “I wanted to schedule this — it was Thursday, and

I had no idea we were going to trial today . . . . I thought I

was just picking the jury today.” At 5:15 PM that day, the

court adjourned. It instructed Arrendondo to produce his

absent witnesses at 10:00 AM the following morning. Those

witnesses did not appear at the appointed hour.

The jury convicted Arrendondo on both counts. Days

later, the state filed a Notice of Intent to Seek Punishment as

a Habitual Criminal under Nev. Rev. Stat. § 207.010, on the

basis of four prior convictions. For a felon previously

ARRENDONDO V. NEVEN 11

convicted of three felonies, § 207.010(b) prescribes any of

three possible punishments, the most severe of which is life

without the possibility of parole. The court sentenced

Arrendondo to two concurrent life sentences, with the

possibility of parole after ten years.

Arrendondo appealed to the Nevada Supreme Court. That

court ordered appointment of counsel, and Marvin L.

Longabaugh was selected to represent Arrendondo.

In his briefs before the Nevada Supreme Court,

Arrendondo’s counsel pressed three claims, two of which are

relevant here: He argued that (1) “the State’s failure to advise

the district court that Arrendondo might be charged as a

habitual criminal made Arrendondo’s waiver of counsel

invalid”; and (2) the trial court denied Arrendondo “adequate

time to produce his trial witnesses.”

After Longabaugh filed Arrendondo’s opening brief but

before receiving the state’s answering brief, Arrendondo

wrote a letter to Longabaugh expressing concerns about his

appeal. That letter is not included in the record, but

Longabaugh’s written response is. In it, Longabaugh

explains that the appeal

focuses on errors that the district court made

during your case. If we were to present these

constitutional issues at this time, you would

be waiving your ability to appeal these issues

through your habeas corpus petition.

Consequently, we did not address these

possible federal constitutional violations

because we want to preserve your right to

12 ARRENDONDO V. NEVEN

argue them when and if you seek habeas

relief.

While the appeal was pending, Arrendondo filed a hand-

written, pro se Motion to Dismiss Counsel and Appointment

of Alternate Counsel. In it, he alleged that Longabaugh had

failed to raise several claims. Included among these

grievances was the assertion that Longabaugh had refused to

substantiate Arrendondo’s inability to produce witnesses by

appending stamped subpoenas as exhibits to the appellate

briefs. The Nevada Supreme Court denied the motion.

Three months later, the Nevada Supreme Court issued its

decision on Arrendondo’s appeal. It affirmed the validity of

his waiver of counsel. “Although the district court indicated

that Arrendondo would face a maximum of twenty years if

convicted, rather than life,” the court reasoned, “the otherwise

extensive canvass of Arrendondo demonstrated that he

understood the dangers and disadvantages of self-

representation.” The Nevada Supreme Court also noted that

when Arrendondo waived his right to counsel, the state had

not yet filed notice that it would seek sentencing under

Nevada’s habitual criminal statute. Separately, the court

affirmed that Arrendondo had been granted adequate time at

trial to produce his witnesses.

Without first filing a state post-conviction petition,

Arrendondo filed a federal habeas petition. That petition was

dismissed without prejudice for reasons unexplained in the

record. This second pro se federal habeas petition followed.

In it, Arrendondo argued that his waiver of counsel was

invalid, because it was neither knowing and intelligent nor

voluntary. He also asserted denial of his right to compulsory

process.

ARRENDONDO V. NEVEN 13

The district court dismissed Arrendondo’s denial of

compulsory process claim on exhaustion grounds. Because

of the unexhausted claims, the district court declared the

petition “mixed” and thus subject to dismissal, see Rose v.

Lundy, 455 U.S. 509, 510 (1982), but offered Arrendondo an

opportunity to cure the problem prior to dismissal.

Arrendondo thereupon accepted the district court’s invitation

to abandon the compulsory process claim and proceeded on

his remaining ground for relief, that his waiver of counsel

was invalid. In a later ruling, the district court denied that

waiver claim on the merits, reasoning that Arrendondo’s

“waiver was knowing and intelligent” and that the Nevada

Supreme Court’s ruling “was not contrary to United States

Supreme Court precedent.”

This appeal followed. A Certificate of Appealability was

granted on both the validity of Arrendondo’s waiver of

counsel and the determination that Arrendondo’s compulsory

process claim was unexhausted. We ordered counsel

appointed for the appeal.

II.

A criminal defendant may waive his Sixth Amendment

right “to have the Assistance of Counsel for his defence,”

U.S. Const. amend. VI, only if he acts “knowingly and

intelligently,” with full awareness of the “dangers and

disadvantages of self-representation.” Faretta v. California,

422 U.S. 806, 835 (1975); accord Patterson v. Illinois, 487

U.S. 285, 292 (1988). The Faretta doctrine polices the

border between “two correlative and mutually exclusive Sixth

Amendment rights: the right to have counsel, on one hand,

and the right to refuse counsel and represent [oneself], on the

14 ARRENDONDO V. NEVEN

other.” United States v. Gerritsen, 571 F.3d 1001, 1007 (9th

Cir. 2009).

Arrendondo argues that his waiver of counsel was neither

“knowing and intelligent” nor voluntary. Because the

Supreme Court of Nevada has already rejected Arrendondo’s

claim on the merits, the deferential standard codified at

28 U.S.C. § 2254(d)(1) governs our review of Arrendondo’s

petition.1 Arrendondo thus must demonstrate that the Nevada

Supreme Court’s decision (1) was “contrary to” clearly

established federal law as determined by the United States

Supreme Court or (2) “involved an unreasonable application

of such law.” Harrington v. Richter, 131 S. Ct. 770, 785

(2011) (internal quotation marks omitted). We review de

novo the district court’s application of this standard. See,

e.g., Smith v. Swarthout, 742 F.3d 885, 892 (9th Cir. 2014).

A.

To prove that his waiver of counsel was not “knowing and

intelligent,” Arrendondo advances a pair of related

arguments. He first attributes error to the trial court’s failure

to discharge its “duty to ensure that an accused who sought to

proceed pro se was advised of the range of possible

punishments.” Elsewhere, Arrendondo switches tacks,

asserting that his colloquy with the trial court demonstrates

that he “lacked the knowledge that he was facing a sentence

of life in prison if convicted.” Neither argument entitles

1

Arrendondo does not contend that the Nevada Supreme Court’s ruling

rested on unreasonable factfinding, so 28 U.S.C. § 2254(d)(2) —

permitting relief where the state court decision “was based on an

unreasonable determination of the facts in light of the evidence presented

in the State court proceeding” — is inapplicable.

ARRENDONDO V. NEVEN 15

Arrendondo to habeas relief, but the latter comes closer to the

mark than the former.

1. As to Arrendondo’s first argument: No clearly

established Supreme Court case law requires trial courts to

apprise defendants in any particular form of the risks of

proceeding to trial pro se. Under the governing Supreme

Court precedents, so long as “the record . . . establish[es] that

‘[the defendant] knows what he is doing and his choice is

made with eyes open,’” the waiver of counsel is valid.

Faretta, 422 U.S. at 835 (quoting Adams v. United States ex

rel. McCann, 317 U.S. 269, 279 (1942)). The Supreme Court

has accordingly declined to “prescribe[] any formula or script

to be read to a defendant who states that he elects to proceed

without counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004).

In direct appeals, this Court has noted that “it is ‘only the

rare case in which an adequate waiver will be found on the

record in the absence of a specific inquiry by the trial judge,’”

Gerritsen, 571 F.3d at 1008 (quoting United States v.

Balough, 820 F.2d 1485, 1488 (9th Cir. 1987)), and that

“‘[w]e prefer trial courts to simplify our review by explaining

the risks of self-representation to the accused,” id. (quoting

United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982)).

Still, “the failure of the district court to engage in a colloquy

with the defendant cannot itself be reversible error. . . .

‘[B]ecause the test concerns what the accused understood

rather than what the court said or understood, explanations

are not required.’” Id. (quoting Kimmel, 672 F.2d at 722).

In sum, Arrendondo’s assertion that the Constitution

requires particularized warnings when a defendant seeks to

represent himself is not supported by established Supreme

Court law. Under 28 U.S.C. § 2254(d)(1), we must deny the

16 ARRENDONDO V. NEVEN

request for habeas relief insofar as it is premised on that

assertion.

2. Arrendondo next argues that, at the time of his waiver,

he “simply did not have an adequate appreciation of the

length of prison time that he would face upon conviction.”

The Supreme Court has clearly established that a defendant

must have a general understanding of the potential penalties

of conviction before waiving counsel to render that waiver

valid. See infra Part II.A.2.a. It has not, however,

determined whether a defendant must understand the

potential penal consequences of sentencing enhancements

that have not yet been charged. See infra Part II.A.2.b. And,

we conclude, refusing to require such an understanding is not

an unreasonable application of what little the Supreme Court

has said on the matter. See id. Consequently, Arrendondo’s

ignorance of the possibility that he could be sentenced as a

habitual criminal if the prosecution later filed notice that it

would seek such a penalty cannot be a basis for habeas relief

under § 2254(d)(1).

a. Faretta, 422 U.S. at 835, held that, “to represent

himself [at trial], the accused must ‘knowingly and

intelligently’ forgo” the right to counsel. To qualify as

knowing and intelligent, the Court continued, such a decision

must be made with awareness “of the dangers and

disadvantages of self-representation.” Id.

Faretta itself did not specifically address the defendant’s

awareness of his possible punishments. But Tovar, 541 U.S.

77, did. That case explained that a defendant, before waiving

his right to counsel for the purpose of entering a guilty plea,

must be aware “of the nature of the charges against him, of

his right to be counseled regarding his plea, and of the range

ARRENDONDO V. NEVEN 17

of allowable punishments attendant upon the entry of a guilty

plea.” Id. at 81 (emphasis added); see also Von Moltke v.

Gillies, 332 U.S. 708, 724 (1948) (plurality opinion) (stating

that a valid waiver of counsel for the purpose of entering a

guilty plea requires “an apprehension of . . . the range of

allowable punishments,” among other matters).2

The requirement recounted in Tovar complements the

requisites for a valid waiver of the right to counsel described

in Faretta.3 As the common law of torts long ago recognized,

the rational calculation of risk requires multiplying the

magnitude of a threatened loss by the probability of its

2

Von Moltke was a plurality opinion, which Faretta, 422 U.S. at 835,

cited for support. Typically, the holding of such a decision is “that

position taken by those Members who concurred in the judgments on the

narrowest grounds.” Marks v. United States, 430 U.S. 188, 198 (1977)

(internal quotation marks and citation omitted). Justices Frankfurter and

Jackson concurred in the judgment of the Von Moltke plurality on the

ground that the validity of the defendant’s waiver depended on the

resolution of questions of credibility, and that remand was therefore

necessary for further findings of fact. Von Moltke, 332 U.S. at 729–31

(Frankfurter, J., concurring in the judgment); see also id. at 727 (plurality

opinion) (remanding for the reasons described in Justice Frankfurter’s

separate opinion). The Von Moltke plurality opinion, however, has been

cited by the Supreme Court as that of the Court, albeit with the “cf.”

signal, but no note of its plurality character. See Patterson, 487 U.S. at

298. The Eighth Circuit has relied on Von Moltke as clearly established

Supreme Court law. See Shafer v. Bowersox, 329 F.3d 637, 651 (8th Cir.

2003). We need not further evaluate Von Moltke’s independent authority

as clearly established Supreme Court law, because Tovar clearly

establishes that a defendant waiving counsel must understand “the range

of allowable punishments attendant upon the entry of a guilty plea.”

541 U.S. at 81.

3

Decades before Tovar, we adopted a similar requirement in our cases

on direct review. See, e.g., United States v. Harris, 683 F.2d 322, 324–25

(9th Cir. 1982).

18 ARRENDONDO V. NEVEN

occurrence. See United States v. Carroll Towing Co.,

159 F.2d 169, 173 (2d Cir. 1947). Tovar supplies the first of

these terms; Faretta, the second. By requiring awareness of

the range of possible penalties, Tovar ensures that defendants

understand the magnitude of the loss they face. Faretta,

meanwhile, emphasizes awareness of “the dangers and

disadvantages of self-representation” — that is, the specific,

tactical liabilities of going to trial without trained counsel.

Faretta, 422 U.S. at 835 (emphasis added). That knowledge

relates to the probability that a defendant will be convicted,

not the consequences of conviction. In short, the

requirements of Faretta and Tovar enrich one another. Taken

together, they outline the minimum necessary knowledge for

a defendant to calculate knowingly and intelligently the risk

of proceeding to trial pro se.

Tovar’s statement concerning the defendant’s knowledge

of possible punishments is clearly established Supreme Court

law, and was at the time of the Court’s decision on the merits.

Tovar stated: “We hold . . . . [that t]he constitutional

requirement is satisfied when the trial court informs the

accused of the nature of the charges against him, of his right

to be counseled regarding his plea, and of the range of

allowable punishments attendant upon the entry of a guilty

plea.” Tovar, 541 U.S. at 81 (emphases added). An express

holding is clearly established Supreme Court law for purposes

of 28 U.S.C. § 2254(d)(1). See, e.g., White v. Woodall, 134

S. Ct. 1697, 1702 (2014). Moreover, the defendant’s

understanding of his potential punishment was included in

Tovar’s reasoning; the opinion affirmatively highlighted the

fact that the defendant “has never claimed that he did not

fully understand . . . the range of punishment for the crime

. . . .” 541 U.S. at 92.

ARRENDONDO V. NEVEN 19

Tovar, unlike this case, concerned an uncounseled guilty

plea, not a defendant who represented himself at trial. But

Tovar addressed the relationship between waiver at the plea

phase and waiver at trial, stating that at the plea stage, “a less

searching or formal colloquy” is needed to gauge the

defendant’s knowledge than is necessary with regard to

waiver of trial counsel. Tovar, 541 U.S. at 89 (emphasis

added) (citing Patterson, 487 U.S. at 299). This difference is

“not because pretrial proceedings are ‘less important’ than

trial, but because, at that stage, ‘the full dangers and

disadvantages of self-representation . . . are less substantial

and more obvious to an accused than they are at trial.’”

Tovar, 541 U.S. at 90 (emphasis added) (quoting Patterson,

487 U.S. at 299).

The risk calculation involved in determining whether to

represent oneself at trial differs from that at the plea stage

with regard to the number of tactical dangers of proceeding

without counsel — that is, the probability that proceeding

without counsel will affect the outcome. But there is no

difference at all in the two circumstances with regard to the

other component of risk calculation — namely, knowledge of

the magnitude of the risk faced. And, given the Court’s

express declaration that the requirements for a guilty plea

waiver of counsel are less rigorous than those applicable to a

trial waiver, excising any of Tovar’s requirements in the trial

context would be an unreasonable interpretation of clearly

established Supreme Court law.

b. Here, the trial court informed Arrendondo of the

maximum penalties carried by conviction for the charged

offenses, possession of a stolen vehicle and possession of

stolen property, and Arrendondo confirmed that he

understood the court’s statement. See Nev. Rev. Stat.

20 ARRENDONDO V. NEVEN

§§ 205.273(4), 205.275(2)(c). We generally presume that

defendants seeking to waive their right to counsel understand

what they are told regarding that choice. See, e.g., Patterson,

487 U.S. at 296; United States v. Mohawk, 20 F.3d 1480,

1484 (9th Cir. 1994). In holding valid Arrendondo’s waiver

of counsel, the Nevada Supreme Court noted, correctly, that

Arrendondo’s understanding of his potential penal exposure

accurately reflected the charging documents before the trial

court at the time of his waiver.

Arrendondo contests that conclusion on the ground that he

was unaware of the potential for a greater penal exposure

under Nevada’s habitual criminal statute, Nev. Rev. Stat.

§ 207.010, with which he had not yet been charged when he

waived his right to counsel.4 And he maintains that without

knowledge of that exposure, his waiver of trial counsel was

not knowing and intelligent. The strictures of 28 U.S.C.

§ 2254(d)(1) preclude us from granting habeas corpus relief

on that ground.

4

At the time of Arrendondo’s conviction, Nevada law did not require

that a defendant be charged with the habitual criminal enhancement, or

with the prior convictions underlying that enhancement, prior to trial. See

Nev. Rev. Stat. §§ 173.095, 207.016(2). At that time, the statute permitted

the prosecutor to seek an enhanced sentence, at the discretion of the

prosecuting attorney, see Nev. Rev. Stat. § 207.010(2), by filing an

information after conviction but before sentencing, see Crutcher v. Eighth

Judicial Dist. Court In & For Cnty. of Clark, 903 P.2d 823, 825–26 (Nev.

1995) (per curiam). That is what happened here.

In 2013, however, the Nevada legislature amended the relevant

statutory provision to require the filing of a habitual criminal information

“not less than 2 days before the start of the trial on the primary offense,

unless an agreement of the parties provides otherwise or the court for good

cause shown makes an order extending the time.” 2013 Nev. Legis. Serv.

Ch. 292, § 1 (A.B. 97) (West) (codified at Nev. Rev. Stat. § 207.016(2)).

ARRENDONDO V. NEVEN 21

i. Clearly established Supreme Court law does not require

a defendant waiving his right to counsel to understand the

potential application of recidivist sentencing enhancements

that had not yet been charged, and were not required to have

been charged, at the time of the waiver. Where sentencing

enhancements are based solely on prior convictions, current

Supreme Court case law does not require that the convictions

be charged before conviction, tried to a jury, or found beyond

a reasonable doubt. See Almendarez-Torres v. United States,

523 U.S. 224, 227–28 (1998); see also United States v.

Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000). And the

Supreme Court has never held that a defendant’s knowledge

of “the range of allowable punishments,” Tovar, 541 U.S. at

81, required for a valid waiver of counsel, includes awareness

of enhanced sentencing options premised on such prior

convictions, the application of which can only result from an

act of prosecutorial discretion that may be exercised after trial

and conviction. Tovar does not address the question, nor

does any subsequent Supreme Court decision. “Therefore, no

‘specific legal rule’ on this issue has been ‘squarely

established by th[e] Court.’” John-Charles v. California,

646 F.3d 1243, 1249 (9th Cir. 2011) (alteration in original)

(quoting Richter, 131 S. Ct. at 786). The Nevada Supreme

Court’s rejection of Arrendondo’s knowing and voluntary

waiver argument, to the extent it rested on the circumstance

that the enhancements had not been charged at the time the

waiver occurred, was thus not contrary to clearly established

Supreme Court law. See 28 U.S.C. § 2254(d)(1).

ii. Section 2254(d)(1) permits habeas relief not only

where a state court decision is inconsistent with clearly

established Supreme Court law, but also where its decision

“involved an unreasonable application of[] clearly established

. . . law.” “[T]he lack of a Supreme Court decision on nearly

22 ARRENDONDO V. NEVEN

identical facts does not by itself mean that there is no clearly

established federal law, since ‘a general standard’ from [the

Supreme] Court’s cases can supply such law,” Marshall v.

Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough

v. Alvarado, 541 U.S. 652, 664 (2004)), if the “unreasonable

application” standard is met.

A state court applies a clearly established standard

unreasonably only if 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). So, when evaluating the reasonableness of a state

court’s application of a general standard, we must defer to

any “principled reason for the state court to distinguish

between the case before it and Supreme Court precedent.”

Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010) (en

banc). Moreover, § 2254(d)(1), the Supreme Court recently

explained,

does not require state courts to extend [a

Supreme Court] precedent or license federal

courts to treat the failure to do so as error.

Thus, “if a habeas court must extend a

rationale before it can apply to the facts at

hand,” then by definition the rationale was not

“clearly established at the time of the state-

court decision.” AEDPA’s carefully

constructed framework “would be undermined

if habeas courts introduced rules not clearly

established under the guise of extensions to

existing law.”

White, 134 S. Ct. at 1706 (internal citations omitted) (quoting

Yarborough, 541 U.S. at 666).

ARRENDONDO V. NEVEN 23

Applying these standards, we hold that it was not

unreasonable for the Nevada Supreme Court to rest its denial

of Arrendondo’s knowing and voluntary waiver claim in part

on the circumstance that the enhancements had not been

charged, or otherwise presaged, at the time of the waiver.

Requiring pretrial knowledge of the potential for such later

enhancements would extend Tovar’s requirement to

circumstances not addressed by that case, which 28 U.S.C.

§ 2254(d)(1) would permit only if all reasonable

interpretations of Tovar would so require. See White, 134 S.

Ct. at 1706. That is not the case here.

First, as to whether “‘fairminded jurists could disagree’

on the correctness of” the Nevada Supreme Court’s limitation

on the knowledge a defendant must possess to waive counsel,

Richter, 131 S. Ct. at 786 (emphasis added) (quoting

Alvarado, 541 U.S. at 664), there is a substantial argument

that fairminded jurists already have endorsed that limitation,

cf. John-Charles, 646 F.3d at 1250 (concluding that a rule

was not unreasonable where several circuits, including our

own, have already adopted it). The plurality opinion in Von

Moltke, 332 U.S. 709, on which Faretta partially relied, in

terms requires a defendant waiving counsel to be aware only

of the possible consequences of the charged offenses. That

opinion conditioned waiver of counsel, for the purpose of an

uncounseled guilty plea, on a defendant’s “apprehension of

the nature of the charges, the statutory offenses included

within them, [and] the range of allowable punishments

thereunder . . . .” Id. at 724 (emphasis added).5 Punishment

5

The adverb “thereunder” is referential. “‘Where no contrary intention

appears,’” such a referential word “‘refer[s] solely to the last antecedent.’”

May Trucking Co. v. Oregon Dept of Transp., 388 F.3d 1261, 1268 (9th

Cir. 2004) (quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,

24 ARRENDONDO V. NEVEN

authorized by separate statutory provisions upon the filing of

a separate information was thus beyond the knowledge

required by the Von Moltke plurality. The necessary

implication was that a defendant seeking to waive counsel for

the purpose of entering a plea need not be aware of possible

penal exposure under charges the state has not yet brought.6

The “fairminded jurist” standard focuses “on application

of law rather than on counting noses,” Doody v. Ryan,

649 F.3d 986, 1007 n.6 (9th Cir. 2011) (en banc), so we must

evaluate the substance of the distinction the Nevada Supreme

Court relied on here. In doing so, we conclude that there are

1311 (9th Cir. 1992)); cf. Barnhart v. Thomas, 540 U.S. 20, 26 (2003). In

the quotation from Von Moltke, “thereunder” refers to the statutory

offenses included within the charges faced by the defendant. The full

clause, then, requires knowledge of “the range of allowable punishments”

under the statutory offenses with which the defendant has been charged.

6

We note, without adopting the result as our own, that the Fourth Circuit

resolved a similar question in the “analogous context”of the knowledge a

defendant must possess to plead guilty, Gerritsen, 571 F.3d at 1009,

holding that it is not unreasonable to determine that ignorance as to

uncharged recidivist sentencing enhancements does not render the waiver

of counsel invalid, see Appleby v. Warden, N. Reg’l Jail & Corr. Facility,

595 F.3d 532, 541 (4th Cir. 2010). To be valid, a guilty plea “not only

must be voluntary but must be [a] knowing, intelligent act[] done with

sufficient awareness of the relevant circumstances and likely

consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). That

standard, in turn, requires a defendant waiving his right to trial to be “fully

aware of the direct consequences” of his plea.” Id. at 755 (internal

quotation marks omitted). The Fourth Circuit held not an unreasonable

application of Supreme Court law, under 28 U.S.C. § 2254(d)(1), the West

Virginia Supreme Court of Appeals’ determination that a defendant’s

guilty plea is valid notwithstanding his ignorance of the potential

application of an enhanced sentence, which had not yet been charged at

the time of the plea, under West Virginia’s recidivist offender statutes.

See Appleby, 595 F.3d at 541.

ARRENDONDO V. NEVEN 25

principled bases on which one could decide that the Tovar

right is limited to charges filed at the time of waiver of

counsel, at least with regard to enhancements, such as

recidivist enhancements, that Apprendi v. New Jersey,

530 U.S. 466 (2000), and its progeny do not require to be

charged before trial and tried to a jury.

As is often the case in federal court, prior convictions

may not be identified before trial, before the waiver of

counsel, or before the entry of a guilty plea. Cf. e.g., United

States v. Barrios-Gutierrez, 255 F.3d 1024, 1027 (9th Cir.

2001) (en banc). Where a defendant is in the process of

waiving counsel, he is likely, as here, to be reliant on the trial

court for his knowledge of the range of permissible

punishments, as his own lawyer is on the sidelines at this

juncture. At best, the trial court likely could provide, and the

defendant could obtain, contingent and general information

about the possibility of greater penal exposure due to a

potentially applicable recidivist enhancement: The defendant

could learn that, depending on the nature of his prior

convictions, and if the prosecutor decides subsequently to

seek recidivist sentencing, his penal exposure could increase,

although it may not be possible to say with any clarity what

that exposure would be. Reasonable jurists could conclude

that such vague and contingent knowledge about additional

charges that might or might not be brought is unlikely to

affect the choice of an otherwise determined defendant to

proceed without counsel, and so is not pertinent to the

knowing and intelligent waiver inquiry.

We might well conclude otherwise, were the issue before

us on direct appeal, particularly where the impact of recidivist

enhancements on the defendant’s penal exposure is great.

The knowledge of very substantial recidivist sentencing

26 ARRENDONDO V. NEVEN

enhancements, even if contingent and vague, could well be

sufficiently likely to affect a defendant’s risk assessment in

deciding whether to forego counsel to come within the Tovar

requirement. Indeed, in United States v. Keen we held invalid

a waiver of counsel where there was “no indication that [the

defendant] was aware of the enhanced penalty he faced as a

result of [his] prior convictions under the armed career

criminal provisions of 18 U.S.C. § 924(e),” along with

several other problems. 104 F.3d 1111, 1116 (9th Cir.

1996).7 And, in the “analogous context” of the knowledge a

defendant must possess to plead guilty under Federal Rule of

Criminal Procedure 11, Gerritsen, 571 F.3d at 1009, our

cases indicate that knowledge of potential recidivist

enhancements may be necessary. Rule 11 requires an on-the-

record determination that a defendant pleading guilty

understands both “any maximum possible penalty” and “any

mandatory minimum penalty.” Fed. R. Crim. P.

11(b)(1)(H)–(I). Under that rule, we have condoned the

district court’s rejection of a guilty plea where a defendant

was told in the plea colloquy that he faced a maximum

sentence of two years, notwithstanding the potential

application of a sentencing enhancement that would extend

his maximum possible sentence to 20 years. See United

States v. Valenzuela-Arisqueta, 724 F.3d 1290, 1296 (9th Cir.

2013). We have also upheld a plea colloquy advising

defendants of maximum possible sentences that the

indictment does not support. See Garcia-Aguilar v. U.S. Dist.

7

Although Keen predates Tovar, the law of this Circuit already required

a defendant waiving his right to counsel to understand his possible penal

exposure. See, e.g., Harris, 683 F.2d at 324. Keen itself recognized that

a defendant must be “‘aware of . . . the possible penalties’” to waive

counsel. Keen, 104 F.3d at 1114 (quoting Mohawk, 20 F.3d at 1484).

ARRENDONDO V. NEVEN 27

Court for S. Dist. of Cal., 535 F.3d 1021, 1025 (9th Cir.

2008).

Nevertheless, we “‘may not issue the [habeas] writ simply

because [we] conclude[] in [our] independent judgment that

the relevant state-court decision applied clearly established

federal law erroneously or incorrectly.’” Lockyer v. Andrade,

538 U.S. 63, 75–76 (2003) (quoting Williams v. Taylor,

529 U.S. 362, 411 (2000)). Where, as here, the defendant

was carefully advised of the procedural risks of foregoing

representation by counsel, and also knew of his substantial

penal exposure under the charges already filed, it was not

unreasonable for the Nevada Supreme Court to conclude that

he waived his right to counsel knowingly and intelligently.

B.

A defendant’s waiver of counsel must not only be

knowing and intelligent, it must also be voluntary. See

Faretta, 422 U.S. at 835; Patterson, 487 U.S. at 292 n.4.

Arrendondo argues that his decision to forego representation,

even if knowing and intelligent, was not voluntary, “because

he was forced to choose between incompetent, unprepared,

and ineffective counsel versus self-representation.”

Arrendondo’s argument fails on the facts, as he has not

established that his trial counsel was constitutionally

inadequate. We therefore need not, and do not, consider

whether his legal theory, if supported by the facts, would

entitle him to relief.

When unconstrained by 28 U.S.C. § 2254(d)(1), our cases

do indicate that a Faretta waiver is involuntary if the

alternative is constitutionally inadequate counsel. See

Crandell v. Bunnell, 25 F.3d 754, 755 (9th Cir. 1994) (per

28 ARRENDONDO V. NEVEN

curiam); United States v. Robinson, 913 F.2d 712, 715–16

(9th Cir. 1990). Electing self representation over

unsatisfactory — but constitutionally sufficient — counsel

does not make a defendant’s waiver of counsel involuntary.

See Robinson, 913 F.2d at 715–16. Even if Supreme Court

law has clearly established this standard — and we do not

decide whether it has — Arrendondo has not factually

satisfied it.

On collateral attack, a habeas petitioner contesting the

validity of his waiver of counsel shoulders the burden of

proof. See Tovar, 541 U.S. at 92; Johnson v. Zerbst, 304 U.S.

458, 468–69 (1938); United States v. Lenihan, 488 F.3d 1175,

1177 (9th Cir. 2007) (per curiam). To establish the

constitutional inadequacy of counsel, Arrendondo must

demonstrate that his attorney was burdened by an actual

conflict of interest, Cuyler v. Sullivan, 446 U.S. 335, 348–49

(1980), or that his attorney’s performance was both

objectively deficient and prejudicial, Strickland v.

Washington, 466 U.S. 668, 687–88 (1984).

Arrendondo does not begin to meet this burden. He notes

in his briefing only that he and his last public defender,

Lynch, had limited contact as they prepared for trial and that,

shortly before his waiver, Arrendondo complained that he

“‘wants motions and writs filed.’” The habeas record

contains no information at all concerning what “motions and

writs” he wanted filed, so it is impossible to evaluate whether

they had any chance of success, or whether a competent

lawyer could have had a tactical or strategic reason for not

filing them. See Richter, 131 S. Ct. at 790. Without a fuller

understanding of the scope of Lynch’s preparations or the

type of “motions and writs” Arrendondo desired, it is

ARRENDONDO V. NEVEN 29

impossible to evaluate the adequacy of Lynch’s

representation or its effect upon Arrendondo’s case.

What little evidence is included in the record cuts against

Arrendondo. In a pro se Motion to Dismiss Counsel, filed in

the weeks leading up to trial, Arrendondo alleged that Lynch

had failed to appear at a hearing to consider Arrendondo’s

Motion for Bail Reduction, leaving him “without anyone to

argue my position.” The record does not include a transcript

of that hearing, but court minutes reveal that public defender

Jannette Reyes-Speer appeared on Arrendondo’s behalf,

contradicting any claim of abandonment. Moreover, at a

subsequent hearing to consider Arrendondo’s Motion to

Dismiss Counsel, the court emphatically denied that Lynch’s

absence had affected its decision on the bail-reduction

motion. “It wouldn’t have mattered if it would have been Ms.

Lynch or someone else standing there,” the court explained.

“The same facts apply.” Thus, no possibility of Strickland

prejudice could be established.

Last, Arrendondo’s Motion to Dismiss Counsel asserted

the existence of what Arrendondo termed a “conflict of

interest.” The claim is significant, because demonstrating

“that an actual conflict of interest adversely affected his

lawyer’s performance” would relieve Arrendondo of the

burden of showing prejudice. Sullivan, 446 U.S. at 34. But,

in support of this claim, Arrendondo alleges not a conflict of

interest but instead strategic differences between Arrendondo

and his lawyer — namely, Lynch’s advice that Arrendondo

enter into a plea agreement. No actual conflict of interest

appears on the record.

In short, Arrendondo has not established that he was

required to choose between constitutionally inadequate

30 ARRENDONDO V. NEVEN

counsel and self-representation. His claim of involuntary

waiver thus fails for lack of proof, whatever the merits might

otherwise be.

III.

The district court dismissed Arrendondo’s compulsory

process claim as unexhausted, for failure fairly to present an

underlying federal theory. Before the Nevada Supreme

Court, the district court concluded, Arrendondo “argued and

cited Nevada state law” alone when he asserted that the trial

court erred in refusing him adequate time to produce his

witnesses. We affirm that ruling.

Usually, a state prisoner must exhaust available state

remedies before a federal habeas court will consider his

claim. See 28 U.S.C. § 2254(b)(1)(A). This “rule of comity

reduces friction between the state and federal court systems

by avoiding the ‘unseem[liness]’ of a federal district court’s

overturning a state court conviction without the state courts

having had an opportunity to correct the constitutional

violation in the first instance.” O’Sullivan v. Boerckel,

526 U.S. 838, 845 (1999) (alteration in original) (quoting

Darr v. Burford, 339 U.S. 200, 204 (1950)). Satisfying this

exhaustion requirement ordinarily requires state prisoners to

“‘fairly presen[t]’” their federal legal theories to the state

courts, so that those courts are “alerted to the fact that the

prisoners are asserting claims under the United States

Constitution” and thus “given the opportunity to correct

alleged violations of prisoners’ federal rights.” Duncan v.

Henry, 513 U.S. 364, 365–66 (1995) (alteration in original)

(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To

fairly present a federal claim, a state prisoner must present to

the state courts both the operative facts and the federal legal

ARRENDONDO V. NEVEN 31

theories that animate the claim. See Gray v. Netherland,

518 U.S. 152, 162–63 (1996); Castillo v. McFadden,

399 F.3d 993, 999 (9th Cir. 2005). Because Arrendondo’s

brief before the Nevada Supreme Court focused exclusively

on state law, he failed to present his compulsory-process

claim as a federal claim.

1. Arrendondo argues that his inclusion of a reference to

Harris v. State, 942 P.2d 151 (Nev. 1997), in his brief before

the Nevada Supreme Court satisfies the fair presentation

requirement. “[F]or purposes of exhaustion, a citation to a

state case analyzing a federal constitutional issue serves the

same purpose as a citation to a federal case analyzing such an

issue.” Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.

2003) (en banc).

Nevertheless,

[f]or a federal issue to be presented by the

citation of a state decision dealing with both

state and federal issues relevant to the claim,

the citation must be accompanied by some

clear indication that the case involves federal

issues. Where . . . the citation to the state case

has no signal in the text of the brief that the

petitioner raises federal claims or relies on

state law cases that resolve federal issues, the

federal claim is not fairly presented.

Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir. 2004);

accord Fields v. Waddington, 401 F.3d 1018, 1022 (9th Cir.

2005). Casey refused to recognize any such “signal” where

the relevant brief never used the word “federal”; “did not

refer expressly to the federal constitution or to any of its

32 ARRENDONDO V. NEVEN

provisions”; and “did not indicate in parentheticals or

elsewhere whether the[] state cases [the brief did cite]

discussed the federal constitution.” 386 F.3d at 911–12.

Arrendondo’s brief before the Nevada Supreme Court is

similarly barren of any such textual reference to federal law

on compulsory process. Arrendondo’s citation of that

decision thus did not fairly present his federal claim to the

Nevada Supreme Court.

2. Arrendondo endeavors to fill the briefing gap with the

observation that his pro se Motion to Dismiss Counsel, filed

several months after his opening brief, alerted the Nevada

Supreme Court to the federal component of his claim.

Arrendondo introduced his complaints about the performance

of his appellate counsel, which were unrelated to counsel’s

failure to argue the federal components of his claim, with an

extended quotation from United States v. Nobles, 422 U.S.

225, 231 (1975).

Had Arrendondo included Nobles in his briefs, it might

have satisfied the fair-presentation requirement. That

requirement may be satisfied “by citing . . . a case deciding [a

sufficiently similar] claim on federal grounds.” Baldwin v.

Reese, 541 U.S. 27, 32 (2004).8 But the Nobles citation

appeared in a collateral pro se motion, not in the merits brief

filed by counsel. “As a general rule, a petitioner satisfies the

exhaustion requirement by fairly presenting the federal claim

8

Nevertheless, “[m]ere ‘general appeals to broad constitutional

priciples, such as due process, equal protection, and the right to a fair

trial,’ do not establish exhaustion.” Castillo, 399 F.3d at 999. Thus even

if Nobles were included in Arrendondo’s merits briefs, we would have to

analyze the specificity with which it analyzed the relevant issues — an

analysis we do not undertake here.

ARRENDONDO V. NEVEN 33

to the appropriate state courts (plural) in the manner required

by the state courts.” Casey, 386 F.3d at 915–16. That usually

means “present[ing] his federal, constitutional issue before

the . . . [state courts] within the four corners of his appellate

briefing.” Castillo, 399 F.3d at 1000. A pro se procedural

motion unrelated to the substantive merits of Arrendondo’s

claim briefed by counsel is not part of the “appellate briefing”

for purposes of the Castillo “four corners” requirement. Nor

do we have any basis for concluding that the Nevada

Supreme Court would nonetheless have considered on the

merits a citation in a collateral procedural motion filed

months before, pro se, by a represented defendant. See Nev.

R. App. P. 28(a)(9); Powell v. Liberty Mut. Fire Ins. Co.,

252 P.3d 668, 672 n.3 (Nev. 2011).

3. Last, Arrendondo asserts that the Nevada Supreme

Court’s reference to Harris in the decision rejecting his

appeal demonstrates that the Nevada Supreme Court “was

aware of the federal constitutional basis of the claim,” so the

question whether he properly raised the issue does not matter.

The legal premise of this argument is correct. “[T]here is

no point in asking whether a state court had a ‘full and fair

opportunity to resolve federal constitutional claims’ when the

state court in fact did so.” Sandgathe v. Maass, 314 F.3d 371,

377 (9th Cir. 2002) (quoting O’Sullivan, 526 U.S. at 845); see

also Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011);

Casey, 386 F.3d at 916 n.18. “Where a [state] court has in

fact ruled on a claim, there is no possibility of ‘friction

between the state and federal court systems.’” Sangathe,

314 F.3d at 377 (alteration in original) (quoting O’Sullivan,

526 U.S. at 845).

34 ARRENDONDO V. NEVEN

In Sandgathe, however, the last reasoned state court

opinion “explicitly ruled on the federal constitutional

issue[],” such that the claim was exhausted. Id. at 378; see

also Ybarra, 656 F.3d at 991 (holding it “clear from the

record that the Nevada Supreme Court did in fact rule on the

merits” of the relevant claim). Here, in contrast, the Nevada

Supreme Court did not expressly pass on the merits, under

federal law, of Arrendondo’s claim that the trial court denied

him adequate time to produce his witnesses. And it cited

Harris in support of the proposition that “a district court has

no duty to assist a proper-person in subpoenaing witnesses,”

not to resolve a question of federal law. Such a citation does

not indicate that the Nevada Supreme Court considered a

federal argument never fairly presented to it.

4. In the alternative, Arrendondo asks us to excuse his

failure to exhaust the compulsory-process claim because his

appellate counsel was constitutionally ineffective.

“[C]ause . . . and actual prejudice” will excuse a state

prisoner’s default of “his federal claims in state court

pursuant to an independent and adequate state procedural

rule,” and constitutionally ineffective assistance of counsel

qualifies as cause. Coleman v. Thompson, 501 U.S. 722, 750,

752 (1991). Although “[p]rocedural default and failure to

exhaust are different concepts,” a failure to exhaust may

result in a procedural default. Sandgathe, 314 F.3d at 376;

see also Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir.

2005). Such a default may occur if it is no longer possible

under state law to pursue the claim that a petitioner failed to

exhaust. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.

ARRENDONDO V. NEVEN 35

2002).9 If that were the case here, then demonstrating the

ineffective assistance of Arrendondo’s appellate counsel and

consequent prejudice would excuse Arrendondo’s procedural

default. See Coleman, 501 U.S. at 750, 752. But to assert

such an excuse in a federal habeas petition, a state prisoner

must first exhaust in state court the claim that his appellate

counsel was constitutionally inadequate. See Cockett v. Ray,

333 F.3d 938, 943 (9th Cir. 2003); Tacho v. Martinez,

862 F.2d 1376, 1381 (9th Cir. 1988).

Here, Arrendondo did not bring a state post-conviction

petition raising either his compulsory process claim on the

merits or a claim of ineffective assistance of his appellate

counsel with respect to the compulsory process issue. Both

paths were open to him, but he took neither. Pursing on post-

conviction review his federal compulsory process claim and

his claim of ineffective assistance of appellate counsel would

have exhausted both, notwithstanding the alleged failures of

his appellate counsel.

Arrendondo’s failure to raise either claim in state post-

conviction proceedings bars consideration of his compulsory

process claim now. Had Arrendondo sought post-conviction

relief on the claims, we would have been able to address the

compulsory process claim if it were cognizable in state court

on post-conviction review, and we could have considered

whether his appellate counsel was ineffective in not raising

the federal compulsory process claim. If we concluded that

appellate counsel was inadequate and that the inadequacy

9

“Properly exhausted claims may also be procedurally defaulted. If a

state court determines that a claim is procedurally barred, we are

precluded from reviewing the merits of the claim if the procedural bar is

adequate and independent.” Beaty, 303 F.3d at 987.

36 ARRENDONDO V. NEVEN

actually prejudiced Arrendondo, we could have addressed the

compulsory process claim on the merits even if the state

courts would not do so because of a procedural default. In

the absence of any state post-conviction petition on either of

the two related claims, however, we are entirely precluded

from hearing his compulsory process claim on the merits, as

Arrendondo did not pursue the claims through all available

state procedures. See 28 U.S.C. § 2254(b).10

IV.

For the reasons above, we AFFIRM the district court’s

judgment on the merits, holding the Nevada Supreme Court’s

ruling on the validity of Arrendondo’s waiver of the right to

counsel not unreasonable. And we AFFIRM the district

court’s dismissal of Arrendondo’s compulsory process claim.

AFFIRMED.

FERNANDEZ, Circuit Judge, concurring:

I concur in the result reached by the majority.

I agree that no clearly established Supreme Court law

requires a district court to do more than inform a defendant of

the maximum penalties for the offenses he was charged with

at the time he decided to represent himself. See Faretta v.

10

Arrendondo also asserts that the Nevada’s failure to oppose this

argument in its answering brief amounts to an implied concession. But

Nevada may only waive the exhaustion requirement expressly, see

28 U.S.C. § 2254(b)(3), which it has not done here.

ARRENDONDO V. NEVEN 37

California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed.

2d 562 (1975); see also Iowa v. Tovar, 541 U.S. 77, 87–94,

124 S. Ct. 1379, 1387–90, 158 L. Ed. 2d 209 (2004).

Similarly, I agree that there is not a sufficient basis for

extending the Court’s prior holdings regarding advice on

maximum penalties to the issues presented in this case. See

White v. Woodall, ___ U.S. ___, ___, 134 S. Ct. 1697,

1705–07, 188 L. Ed. 2d 698 (2014). Moreover, Arrendondo

did not exhaust his compulsory process claim in the courts of

Nevada, and I agree that his failure to do so bars our

consideration of that claim.

However, I am reluctant to rule on issues that are not

necessary to our decision or to engage in lengthy discussions

or musings that need not be pursued at this time. Indeed, I

see great danger when we say more than is required to decide

the case before us; our doing so may well create unintended

reefs that others must navigate in the future if they are to

avoid disaster. For example, I find much of the discussion

contained in part II.A.2.a. essentially unnecessary, and that

the conclusion that any Tovar requirement must apply in the

trial context (whatever that means for the whole period from

the beginning of a case to its termination) is especially

unnecessary and problematic. Similarly, I see no need to

speculate about what we might or might not do if this were a

direct appeal, as the majority does at pages 25–27. And, I see

no need to opine on what we could or would do had

Arrendondo presented his case in a different manner in the

state courts. See page 35–36 of the majority opinion.

In short, while I wholeheartedly agree in the result and in

the analysis necessary to the result, I am not willing to run the

risk of unintended consequences that comes from saying too

much. I, therefore, do not join in the majority’s divagations

38 ARRENDONDO V. NEVEN

and unnecessary assertions. Thus, I respectfully concur in the

result only.