# Wayne Dale Schell v. Larry Witek, Warden Bill Lockyer, Attorney General, State of California, 1

> Court of Appeals for the Ninth Circuit · June 25, 1999 · 181 F.3d 1094

URL: https://www.frixlaw.com/law-library/cases/9492251

## Case

- **Full name:** Wayne Dale SCHELL, Petitioner-Appellant, v. Larry WITEK, Warden; Bill Lockyer, Attorney General, State of California,1 Respondents-Appellees
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 25, 1999
- **Citations:** 181 F.3d 1094; 99 Daily Journal DAR 6563; 99 Cal. Daily Op. Serv. 5059; 1999 U.S. App. LEXIS 13976; 1999 WL 421332
- **Precedential status:** Published
- **Opinion:** Concurrence by Kozinski
- **Judges:** Nelson, Kozinski, Trott
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Superseded on other grounds by Wayne Dale Schell v. Larry Witek, Warden Bill Lockyer, Attorney General, State of California, 1, 218 F.3d 1017 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9492251

## Opinion text

KOZINSKI, Circuit Judge,
concurring:
I join Judge Trott’s opinion because I agree that Schell may have been deprived of his Sixth Amendment right to counsel as a result of the state trial court’s failure to rule on his motion for substitution of counsel. I write separately to point out how muddled our law in this area has become.
As a federal court of appeals, we have the power to create prophylactic rules that the district courts must follow, even when such rules are not constitutionally required. See, e.g., Cupp v. Naughten, 414 U.S. 141, 146 , 94 S.Ct. 396 , 38 L.Ed.2d 368 (1973); Rand v. Rowland, 154 F.3d 952, 959 (9th Cir.1998) (en banc); United States v. Rubio-Villareal, 967 F.2d 294, 298 (9th Cir.1992) (en banc). Our relationship to the state courts is very different. We have no power to set up prophylactic rules for them, nor to review the exercise of their discretion. Instead, in a habeas case like Schell’s, we may determine only whether the petitioner is “in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254 (1994); see also Coleman v. Thompson, 501 U.S. 722, 730 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991) (“The [habe-as] court does not review a judgment, but the lawfulness of the petitioner’s custody simpliciter."). That is the full extent of our power.
Although it may be fair to say that a state court necessarily abuses its discretion when it denies a defendant his constitutional rights, the converse isn’t true: A state court may abuse its discretion without denying a defendant his constitutional rights. Yet we have equated the two by holding that we review a state trial court’s refusal to allow substitute counsel for an abuse of discretion. See Bland v. California Dep’t of Corrections, 20 F.3d 1469, 1475 (9th Cir.1994). Unsurprisingly, the authority Bland cited for this proposition is a case that came to us on direct review from a federal district court — where we do have the authority to review for abuse of discretion. However, that standard of review has no sensible application in a habe-as case. 1
Consistent with our caselaw, the majority opinion utilizes a three-part test from Bland : In order to determine whether the state court abused its discretion, we consider the timeliness of the motion, the adequacy of the inquiry into the defendant’s complaint, and whether the conflict between the defendant and his attorney was so great as to prevent an adequate defense. Bland took this test from the same direct review case it cited for the abuse of discretion standard of review, United States v. Walker, 915 F.2d 480 (9th Cir.1990). Tracing the test back to its roots, we find that it was first announced in a direct review case. See United States v. Mills, 597 F.2d 693, 700 (9th Cir.1979). Only the third listed factor, whether the conflict prevented an adequate defense, is properly a question for a federal court on habeas review. Any inquiry into whether *1105 we believe the motion was timely or the state court’s inquiry into the defendant’s complaint was adequate may trench upon the state courts’ right to set their own procedural rules. If a, defendant doesn’t follow those rules, his claim may be procedurally defaulted. See, e.g., Coleman, 501. U.S. at 750, 111 S.Ct. 2546 ; Wainwright v. Sykes, 433 U.S. 72, 86-87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977). I don’t see that we have the authority to tell the state courts when the rules must be followed and when they should be ignored. See, e.g., maj. op. at 1100.
Because a three-judge panel cannot overrule circuit precedent, I join the majority in utilizing the Bland three-part test to determine whether Schell was deprived of his Sixth Amendment rights by the state court’s failure to hear, his motion for substitution of counsel. However, in an appropriate case, I believe that the court sitting en banc should reconsider that test.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9492251. Public record. Not legal advice.