Miller v. Blacketter

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DUSTIN VADE MILLER, 

Petitioner-Appellant,

No. 06-36090

v.

SHARON BLACKETTER,  D.C. No.

CV-05-00267-PA

Superintendent, Eastern Oregon

OPINION

Correctional Institution,

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted

December 4, 2007—Portland, Oregon

Filed May 12, 2008

Before: Diarmuid F. O’Scannlain, Susan P. Graber, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge O’Scannlain

5273

MILLER v. BLACKETTER 5275

COUNSEL

Kristina Hellman, Assistant Federal Public Defender, Port-

land, Oregon, argued the cause for the petitioner-appellant

and filed a brief; Patrick J. Ehlers, Assistant Federal Public

Defender, Portland, Oregon, also filed a brief.

Carolyn Alexander, Assistant Attorney General, State of Ore-

gon, Salem, Oregon, argued the cause for the respondent-

5276 MILLER v. BLACKETTER

appellee and filed a brief; Mary H. Williams, Solicitor Gen-

eral, and Hardy Myers, Attorney General, State of Oregon,

Salem, Oregon, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We are called upon to decide whether a defendant, whose

attorney moved on the morning of trial to withdraw from the

case and to postpone proceedings, was denied his right to the

counsel of his choice when the trial judge denied the motions.

I

A

Thirty-four-year-old Dustin Vade Miller, unarmed but pur-

porting to be holding a gun, robbed several small retail estab-

lishments over a ten-day period in 1998. He was apprehended

by police, fought back, and later confessed to the crimes. Mil-

ler was charged in Lane County, Oregon, with several counts

of robbery, assaulting a public safety officer, and resisting

arrest. He pled not guilty to all counts and Janise Augur, of

the Lane County Public Defender’s Office, was appointed to

represent him. Trial was scheduled, but was continued for

thirty days upon Augur’s motion because she had not yet

received a tape of Miller’s confession from the State. During

this period, Augur and the State attempted to negotiate a plea

agreement, but never agreed to the terms.

On the evening before trial, Miller left a telephone message

on Augur’s home answering machine stating that he was no

longer comfortable with her representation and that he wanted

a new lawyer. In response, Augur filed motions the next

morning to withdraw as Miller’s counsel and to postpone trial.

MILLER v. BLACKETTER 5277

Oregon Circuit Judge Lyle C. Velure immediately held a pro-

ceeding in open court to consider the motions, with Miller

present. Augur spoke first and explained that Miller’s father

(“Mr. Miller”) had told his son the day before that he would

be willing to pay for private representation. In addition,

Augur described Miller’s phone call and stated that he had

become unwilling to communicate with her further about the

case. Given these developments, she told the judge that she

felt she could no longer effectively represent Miller. Finally,

Augur speculated that a new attorney could be ready to try the

case “within a month,” but conceded that Miller had not yet

retained a new attorney.

The prosecutor objected to postponement, arguing that the

State was ready to proceed and that all of its witnesses were

present at the courthouse that morning. Further, the prosecutor

characterized Augur as competent and able counsel, noting

that she had actively attempted to negotiate a plea on Miller’s

behalf and that she had recently filed a pretrial motion to sup-

press Miller’s confession. The prosecutor also argued that the

motions made that morning were simply Miller’s attempt to

delay trial and to pressure the State into a more favorable plea

agreement than it had offered previously.

The trial judge then expressed his view that Augur was

“one of the most competent criminal defense attorneys in the

county” and also noted that one continuance had already been

granted.1 The judge then heard from Miller, who alleged that

Augur had not met with him until two days before trial, leav-

ing him “completely in the dark” regarding the status of his

case. Miller went on to contend that Augur “had no defense

prepared,” specifically noting that she had not arranged for

1

The parties dispute whether this initial continuance, due to the non-

delivery of evidence, was caused by the State’s negligence or Augur’s,

and the record is silent on this point. Still, because this was the trial

judge’s sole reference to the continuance, we do not view it as a material

factor in his ruling on the motions.

5278 MILLER v. BLACKETTER

any witnesses to testify on his behalf. In response to the trial

judge’s questions, however, Miller acknowledged that Augur

had met with him on each of the two previous days and con-

ceded that he never informed her of any witnesses who could

testify on his behalf.

Judge Velure also allowed Miller’s father to address the

court. Mr. Miller explained his belated willingness to pay for

private counsel by noting that his son had informed him of the

potential length of his sentence only during a phone conversa-

tion the night before. Although Mr. Miller had previously

decided to stay out of his son’s legal troubles, he explained

that he felt compelled to intervene once he learned of the “to-

tally ridiculous, ridiculous” amount of prison time Miller was

facing. Mr. Miller informed the court that he hoped to hire an

attorney who could “talk candidly” and be “available to me,”

and that he had a particular attorney in mind, Fred Hartstrom,

a friend from “many years back.” When asked, Mr. Miller

stated that he had not yet been able to reach Hartstrom, but

that he had “made the call” that morning.

After his father spoke, Miller reiterated his complaints

about Augur’s preparation, and Augur reiterated her belief

that Miller would not cooperate with her. The trial judge then

took a ten-minute recess, during which he reviewed Augur’s

pretrial motion to suppress Miller’s confession. Upon his

return, the judge denied Augur’s motions to withdraw and to

continue trial, emphasizing his reluctance to encourage crimi-

nal defendants in filing last-minute motions to fire their law-

yers. He also found Miller’s allegations that Augur was

unprepared unfounded, noting specifically that her pretrial

motion was “appropriately prepared and appropriately

formed.” Nevertheless, in response to Miller’s concerns, the

trial judge decided to delay opening statements from the cur-

rent date, a Friday, until the following Tuesday, giving Augur

and Miller the intervening time to work together on his

defense. In addition, the judge emphasized to Miller that he

would be “extremely liberal” in construing procedural rules in

MILLER v. BLACKETTER 5279

Miller’s favor and that he would permit Augur to introduce

any witnesses or evidence Miller revealed to her, even if

Augur had not previously supplied such information to the

prosecution.

Augur renewed her motion to withdraw, which was again

denied. Next, Mr. Miller addressed the court, stating that

while he had “no problem” with the ruling, which was “good

enough and fair enough,” he remained “really frightened” by

the expected sentence. The trial judge assured Mr. Miller that

he would ensure that his son would be “fairly and adequately

represented” and emphasized that Miller needed to take

advantage of the short delay the judge had provided to com-

municate with his attorney.

Later, in exchange for the State’s promise to recommend a

reduced sentence, Miller waived his right to a jury trial and

agreed to a stipulated facts trial. The trial judge found Miller

guilty on all counts and imposed a 210-month sentence, con-

sistent with the State’s recommendation.

B

Miller directly appealed his convictions to the Oregon

Court of Appeals, which affirmed without opinion, and the

Oregon Supreme Court denied review. Next, Miller filed for

post conviction relief in Oregon state court, but the court

denied the petition in its entirety. Again, the Oregon Court of

Appeals affirmed without opinion, and the Oregon Supreme

Court denied review.

On February 5, 2005, Miller filed a pro se petition for a

writ of habeas corpus in the United States District Court for

the District of Oregon. The district court construed all of Mil-

ler’s claims as waived except his contention that the trial

judge violated his Sixth Amendment rights by denying

Augur’s motions to withdraw and to postpone trial. The dis-

trict court denied the petition, concluding that no clearly

5280 MILLER v. BLACKETTER

established federal law provided that (1) the trial judge’s deci-

sion was a denial of Miller’s right to counsel of choice, or that

(2) the trial judge’s inquiry into the breakdown in Miller and

Augur’s relationship deprived him of the effective assistance

of counsel. Miller timely filed this appeal, challenging only

the first of the district court’s determinations.)

II

Miller’s sole claim on appeal is that the state trial judge’s

denial of Augur’s motions to withdraw and to postpone vio-

lated his right to the counsel of his choice. At the outset, we

emphasize that because the question has not been preserved,

we do not consider whether the deterioration in Miller and

Augur’s relationship prevented the effective assistance of

counsel. Instead, our inquiry is limited to the narrower ques-

tion of whether the trial judge’s denial of Augur’s motions

deprived Miller of his right to choice of counsel.

A

Miller’s claim is governed by the Antiterrorism and Effec-

tive Death Penalty Act of 1996, which limits relief in cases

such as this to situations in which the state court’s decision

was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1); see Wil-

liams v. Taylor, 529 U.S. 362, 407-09 (2000). Thus, to deter-

mine whether Miller is entitled to habeas relief, we first

consider the Supreme Court precedent in existence at the time

of the trial judge’s decision that applies to Miller’s claim.

Second, we consider whether the trial judge’s decision was

contrary to or involved an unreasonable application of that pre-

cedent.2 As the Supreme Court recently emphasized in Carey

2

In reviewing a petition for habeas, we look to “the last reasoned state-

court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).

Because the Oregon appellate courts summarily affirmed Miller’s convic-

tions and summarily denied his petition for post-conviction relief, the trial

judge’s decision to deny the motions is the proper focus of our analysis.

MILLER v. BLACKETTER 5281

v. Musladin, 127 S. Ct. 649 (2006), only the “holdings, as

opposed to the dicta, of [the] Court’s decisions” are relevant

to this analysis. Id. at 653 (internal quotation marks omitted).

B

[1] The Sixth Amendment provides that, “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” U.S. CONST. amend.

VI. This right “guarantees a defendant the right to be repre-

sented by an otherwise qualified attorney whom that defen-

dant can afford to hire, or who is willing to represent the

defendant even though he is without funds.” Caplin & Drys-

dale, Chartered v. United States, 491 U.S. 617, 624-25

(1989); see also Powell v. Alabama, 287 U.S. 45, 53 (1932)

(“It is hardly necessary to say that the right to counsel being

conceded, a defendant should be afforded a fair opportunity

to secure counsel of his own choice.”). In addition, a defen-

dant who establishes that his right to counsel of choice was

violated need not demonstrate prejudice in order to be entitled

to relief, as a defendant claiming ineffective assistance of

counsel is required to do. United States v. Gonzalez-Lopez,

126 S. Ct. 2557, 2562 (2006) (explaining that once the right

to counsel of choice is violated, “[n]o additional showing of

prejudice is required to make the violation ‘complete.’ ”).

[2] The Supreme Court has emphasized, however, that the

right to counsel of choice is “circumscribed in several impor-

tant respects.” Wheat v. United States, 486 U.S. 153, 159

(1988). Indeed, there are four specific situations in which the

Sixth Amendment does not entitle a defendant to preferred

counsel: A defendant does not have the right to be represented

by (1) an attorney he cannot afford; (2) an attorney who is not

willing to represent the defendant; (3) an attorney with a con-

flict of interest; or (4) an advocate (other than himself) who

is not a member of the bar. Id. In addition, the Court has

established that a trial court requires “wide latitude in balanc-

ing the right to counsel of choice against the needs of fairness,

5282 MILLER v. BLACKETTER

and against the demands of its calendar.” Gonzalez-Lopez,

126 S. Ct. at 2565-66 (citation omitted). As such, trial courts

retain the discretion to “make scheduling and other decisions

that effectively exclude a defendant’s first choice of counsel.”

Id. at 2566.

With these principles set forth, we turn to the question of

whether the trial judge’s decision to deny Augur’s motions to

withdraw and to continue the trial date either contradicted or

unreasonably applied their commands.3

C

It is clear that the trial judge’s decision was not contrary to

clearly established Supreme Court precedent, as the Court has

never considered a case involving facts sufficiently similar to

those presented here to be controlling, nor did the trial judge

apply a rule which contradicted the Court’s instructions. See

Williams, 529 U.S. at 405-06 (explaining that a state court’s

decision will be “contrary to” clearly established federal law

where the state court “applies a rule that contradicts the gov-

erning law” set forth by the Supreme Court or where it “con-

fronts a set of facts that are materially indistinguishable” from

one of the Court’s decisions and nevertheless arrives at a dif-

ferent result). Still, a state court may unreasonably apply

clearly established federal law where it “either unreasonably

extends a legal principle from [Supreme Court] precedent to

a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it

should apply.” Id. at 407. Thus, we consider whether the trial

judge’s decision was an unreasonable exercise of its discre-

3

We reject Miller’s suggestion that the district court deemed his Sixth

Amendment claim waived. While the district court noted that Miller “may

have waived” his right to counsel of choice, it expressly stated that it

would treat the claim as preserved and proceeded to assess the merits of

Miller’s petition at length in a reasoned decision. It is that decision which

we review here.

MILLER v. BLACKETTER 5283

tion to balance Miller’s right to his chosen counsel against

concerns of fairness and scheduling. See Gonzalez-Lopez, 126

S. Ct. at 2565-66. We identify three factors as particularly rel-

evant to the trial court’s decision.4

1

[3] First, at the time Augur moved to withdraw and to post-

pone trial, Miller had not yet retained another attorney to take

her place. In Gonzalez-Lopez, the Supreme Court accepted the

government’s concession that a trial court wrongfully denied

a defendant the right to counsel of choice where the court

refused to grant pro hac vice admission to an attorney the

defendant hired who was willing and prepared to begin repre-

sentation immediately. 126 S. Ct. at 2560-61. Similarly, in

Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2007) (en banc)

(plurality), we held that a state trial court violated a habeas

petitioner’s right to counsel of choice when it denied her

motion to replace appointed counsel with retained counsel

who “assured [the court] that he would be ready by the date

appointed for trial.” Id. at 1096; see id. at 1102 (Clifton, J.,

concurring in the judgment).

[4] In this case, however, Miller sought a thirty-day contin-

uance during which he hoped to search for and to retain a new

lawyer with the funds his father had belatedly offered to pro-

vide. At the time of the motions, no such attorney had been

retained. While Miller’s father had placed a call to Hartstrom,

there was nothing to suggest that Hartstrom would be willing

4

Both Miller and the State devote significant attention to the procedural

adjustments the trial judge made in response to Miller’s dissatisfaction

with Augur, specifically his decisions to postpone opening statements

from Friday to Tuesday, to allow Augur to introduce evidence not dis-

closed during discovery, and to be “exceedingly liberal” in construing pro-

cedural rules in Miller’s favor. While such remedies are relevant to a

claim of ineffective assistance of counsel, Gonzalez-Lopez instructs that

they are irrelevant to a claim for denial of counsel of choice. See 126

S. Ct. at 2562.

5284 MILLER v. BLACKETTER

or available to take Miller’s case. Moreover, it was unclear

how much time a new attorney, once hired, would have

needed to prepare for Miller’s trial. Although Augur specu-

lated that preparation would take approximately one month,

other commitments in the new attorney’s schedule may have

made such a timeline unrealistic.

2

[5] Second, the trial judge reasonably concluded that Augur

was sufficiently prepared for trial. Under our precedents, the

trial judge had a duty to inquire into the problems between

Augur and Miller when they were first raised.5 Plumlee v.

Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) (citing

Schell v. Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000) (en

banc)). The judge conducted such an inquiry, affording both

Miller and Augur an opportunity to explain the cause of Mil-

ler’s dissatisfaction. Miller’s sole contention was that Augur

was unprepared for trial, having not met with him until two

days before and having prepared no witnesses to testify. Yet

upon the judge’s questioning, Miller acknowledged that

Augur had met with him on both of the two prior days and

that he never furnished Augur with the names of any potential

witnesses. In addition, while Augur expressed concerns about

her ability to represent Miller in light of his refusal to cooper-

ate, she never indicated that she was unprepared to try the

case. Finally, the prosecution described Augur’s active

attempt to negotiate a plea agreement on Miller’s behalf and

the judge examined Augur’s pretrial motion to exclude Mil-

ler’s confession, finding it to be appropriately prepared.

5

Miller contends that the trial judge was required to conduct an ex parte

hearing on the motions. We disagree. We have approved of such devices

where a defendant alleges that his attorney has a conflict of interest. See

United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001); United

States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998). But in this case,

Miller’s only contention was that Augur was unprepared. Because the trial

judge’s inquiry and firsthand observation was sufficient to establish that

Augur was prepared to begin trial, an ex parte hearing was not required.

MILLER v. BLACKETTER 5285

In our view, this information provided the trial judge with

reasonable grounds on which to conclude that Augur was pre-

pared to try the case that morning, as scheduled. While we do

not address the question of whether an irreconcilable conflict

existed between Miller and Augur, see supra at 5280, we note

that “we are not aware of any [Supreme Court precedent] that

stands for the proposition that the Sixth Amendment is vio-

lated when a defendant is represented by a lawyer free of

actual conflicts of interest, but with whom the defendant

refuses to cooperate because of dislike or distrust.” Plumlee,

512 F.3d at 1211.

3

[6] Third, we consider the timing of Augur’s motions to

withdraw and to postpone trial. Miller was indicted sixty-

eight days before trial, and we are satisfied that such time pro-

vided him with ample opportunity to arrange for an alterna-

tive to court-appointed counsel by whatever means he saw fit,

including by seeking his father’s financial assistance. The fact

that Mr. Miller’s generosity was not prompted until the eve of

trial in no way suggests that the court denied Miller a full and

fair opportunity to seek the counsel of his choice. In any

event, we reject Miller’s suggestion that the Sixth Amend-

ment entitled him to a fair opportunity to seek the counsel of

his choice starting at the moment when his father offered to

pay for private representation.

Moreover, we note that Miller’s attorney did not move to

withdraw and to continue the trial date until the morning trial

was set to begin. The Supreme Court has held that “only [a

trial court’s] unreasoning and arbitrary ‘insistence upon expe-

ditiousness in the face of a justifiable request for delay’ ” vio-

lates the Sixth Amendment, Morris v. Slappy, 461 U.S. 1, 11-

12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589

(1964)), and has emphasized the timing of the defendant’s

motion in analyzing such trial court decisions.

5286 MILLER v. BLACKETTER

[7] In Wheat, the defendant moved to substitute his attorney

only two court days before trial. 486 U.S. at 157. The

Supreme Court held that the trial court did not abuse its dis-

cretion in denying the motion, concluding that “with the

motion for substitution of counsel made so close to the time

of trial,” the trial court properly relied on “instinct and judg-

ment” and did not exceed its “broad latitude.” Id. at 163. Sim-

ilarly, in Morris, the Court held that the trial court did not

violate the defendant’s Sixth Amendment rights in denying

his motion for a continuance until the public defender initially

assigned to his case was to be available. 461 U.S. at 12. In

that case, the defendant’s public defender was hospitalized

and replaced by another public defender six days before trial.

Id. at 5. The trial court found the new attorney was prepared

and trial began on schedule. Id. at 6. The defendant did not

move for a continuance until the first day of trial, and the

Supreme Court held that the trial court was “abundantly justi-

fied” in denying the motion, noting the trial court could have

reasonably construed the defendant’s “belated request[ ]” as a

“transparent ploy for delay.” Id. at 13.

[8] Here, Miller did not express any dissatisfaction with

Augur’s representation until the day his father offered to pay

for a private attorney, and the trial judge was not presented

with the motions until the next morning, the morning trial was

set to begin. Of course, the late timing of a motion to substi-

tute counsel or to postpone trial does not always preclude

relief. See Daniels v. Woodford, 428 F.3d 1181, 1200 (9th Cir.

2005) (“Even if the trial court becomes aware of a conflict on

the eve of trial, a motion to substitute counsel is timely if the

conflict is serious enough to justify the delay. This is particu-

larly true where the trial court has reason to know of the con-

flict months before the trial but does not inquire into the

conflict.” (citation omitted)). However, in this case, with no

justification for Miller’s delay other than his father’s change

of heart, we cannot conclude that the trial judge’s decision to

deny the motions was the type of unreasoning and arbitrary

MILLER v. BLACKETTER 5287

insistence on expeditiousness that clearly established federal

law prohibits. See Morris, 461 U.S. at 11-12.

III

[9] Viewing the foregoing factors under the deferential

standard that § 2254(d)(1) requires, we conclude that the trial

judge’s decision to deny the motions to withdraw and to post-

pone trial did not exceed his discretion to balance Miller’s

right to counsel of choice against concerns of fairness and

scheduling. See Gonzalez-Lopez, 126 S. Ct. at 2565-66.

Accordingly, the district court’s denial of Miller’s petition

for a writ of habeas corpus is

AFFIRMED.