Douglas Clark v. Ron Broomfield

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DOUGLAS DANIEL CLARK, No. 21-99008

Petitioner-Appellant, D.C. No. 2:92-cv-

06567-SB

v.

RONALD BROOMFIELD, Acting OPINION

Warden, California State Prison at San

Quentin,

Respondent-Appellee.

Appeal from the United States District Court

for the Central District of California

Stanley Blumenfeld, Jr., District Judge, Presiding

Argued and Submitted September 19, 2023

San Francisco, California

Filed October 10, 2023

Before: Sidney R. Thomas, Mark J. Bennett, and Lawrence

VanDyke, Circuit Judges.

Opinion by Judge Sidney R. Thomas

2 CLARK V. BROOMFIELD

SUMMARY *

Habeas Corpus/Death Penalty

The panel affirmed the district court’s denial of Douglas

Clark’s 28 U.S.C. § 2254 habeas corpus petition challenging

his California conviction and capital sentence for six counts

of first-degree murder.

The panel held that Clark’s pre-AEDPA October 1992

pro se filing seeking appointment of counsel was not an

“actual application” that sought “adjudication” on the merits,

and that AEDPA applied to the habeas petition filed by

appointed counsel in April 1997.

The panel held that the California Supreme Court’s

decision that Clark’s July 1982 pre-trial Faretta request to

represent himself was equivocal was not contrary to, or an

unreasonable application of, clearly established federal law,

as determined by the United States Supreme Court.

The panel held that the California Supreme Court’s

decision that Clark’s August 1982 Faretta request was

untimely was not contrary to, or an unreasonable application

of, clearly established federal law, as determined by the

United States Supreme Court. The panel held that the

district court also properly held that the purported August

Faretta demand was equivocal.

The panel held that the California Supreme Court’s

opinion holding that the trial court’s revocation of Clark’s

pro per status during trial did not violate Faretta was not

*

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

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

CLARK V. BROOMFIELD 3

contrary to, or an unreasonable application of, clearly

established federal law, as determined by the United States

Supreme Court. The panel wrote that the state court’s

decision to consider Clark’s threat to “stand mute” before the

jury in light of the record as a whole was not an unreasonable

application of Faretta, which permits the termination of self-

representation when a defendant deliberately engages in

serious and obstructionist misconduct.

The panel held that the district court properly concluded

that the California Supreme Court’s opinion holding that

Clark’s Marsden rights were not violated was not contrary

to, or an unreasonable application of, clearly established

federal law, as determined by the United States Supreme

Court. Under California law, a “Marsden motion” is

typically based on a claim that the appointed counsel’s

representation has in some significant measure fallen below

the level required by the Sixth Amendment. The panel wrote

that Clark’s assertion that an irreconcilable conflict existed

with his lead counsel and that the trial court was required to

conduct an evidentiary hearing to decide whether the conflict

rose to a Sixth Amendment violation is foreclosed by Carter

v. Davis, 946 F.3d 489 (9th Cir. 2019). The panel noted that

Clark asserted only that his conflict with lead counsel

“guaranteed an inadequate defense presentation,” but neither

raised a claim of ineffective assistance nor identified a single

act of ineffectiveness. The panel explained that (1) Clark’s

request for a federal evidentiary hearing is precluded by

Cullen v. Pinholster, 563 U.S. 170 (2011); (2) the request is

also precluded by 28 U.S.C. § 2254(e) because Clark failed

to develop any additional facts at trial and solely raised the

claim on appeal; (3) Clark did not allege facts that, if proven

true, would entitle him to relief; and (4) because the Supreme

Court has never recognized a Sixth Amendment claim based

4 CLARK V. BROOMFIELD

on an irreconcilable conflict in the absence of alleging

ineffectiveness, a hearing would be futile.

COUNSEL

Jack G. Cairl (argued), Law Offices of Jack G. Cairl, Los

Angeles, California; Michael S. Magnuson (argued), Law

Offices of Michael S. Magnuson, Whittier, California; for

Petitioner-Appellant.

Nathan Guttman (argued) and Xiomara Costello, Deputy

Attorneys General; Dana Muhammad Ali, Supervising

Deputy Attorney General; James W. Bilderback II, Senior

Assistant Attorney General; Lance E. Winters, Chief

Assistant Attorney General; Rob M. Bonta, California

Attorney General; California Attorney General’s Office, Los

Angeles, California, for Respondent-Appellee.

OPINION

S.R. THOMAS, Circuit Judge:

Douglas Clark appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition challenging his

California conviction and capital sentence for six counts of

first-degree murder. On appeal, he contends that his rights

under Faretta v. California, 422 U.S. 806 (1975), and his

right to substitute counsel under People v. Marsden, 465

P.2d 44 (Cal. 1970), were violated.

The district court had jurisdiction under 28 U.S.C.

§ 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291

CLARK V. BROOMFIELD 5

and 2253(a). We review a district court’s denial of a habeas

petition de novo. See Martinez v. Cate, 903 F.3d 982, 991

(9th Cir. 2018). We affirm.

I

Clark was convicted in 1982 of the first-degree murders

of Cynthia Chandler, Gina Marano, Karen Jones, Exxie

Wilson, Marnette Comer, and Jane Doe 18. He was also

convicted of one count of mutilation of human remains and

one count of attempted murder and mayhem as to Charlene

Andermann. The jury found true a multiple murder special

circumstance allegation and sentenced Clark to death. On

July 30, 1992, the California Supreme Court reversed

Clark’s conviction for attempted murder and mayhem and

affirmed Clark’s murder convictions and death sentence.

People v. Clark, 833 P.2d 561 (Cal. 1992).

The facts underlying the six murders, and the

investigations of them, are detailed in the California

Supreme Court’s decision in Clark, 833 P.2d at 570–78.

Therefore, we shall focus on the legal arguments that Clark

presents in his federal habeas appeal.

On direct appeal before the California Supreme Court,

Clark claimed that the trial court violated his right of self-

representation and right to substitute counsel. The

California Supreme Court denied those claims on the merits.

Clark subsequently filed numerous habeas petitions in the

California Supreme Court. The California Supreme Court

denied the claims on procedural grounds and on the merits.

On October 23, 1992, Clark filed a pro se document in

federal district court entitled “Writ of Habeas Corpus, from

a State Capital Trial and Appellate Process.” Clark

requested appointment of counsel to investigate potential

6 CLARK V. BROOMFIELD

habeas claims, some of which he listed. At the end of the

filing, Clark did not make a request for habeas relief, but

only sought appointment of counsel. He signed the 1992

filing, but did not do so under penalty of perjury. The district

court docketed the filing as a request for counsel and stay of

execution.

The court subsequently appointed two attorneys to

represent Clark and ordered nunc pro tunc that their

appointment was effective as of September 29, 1993. When

counsel filed the habeas petition on April 23, 1997, setting

forth twenty-seven claims for relief, they did not purport to

amend a prior filing.

The district court then issued an order staying the case to

permit Clark to exhaust state remedies. After the California

Supreme Court summarily denied Clark’s petitions in 2003,

Clark’s attorneys filed the operative amended federal

petition on June 22, 2004, which asserted twenty-three

claims for relief.

The district court then ordered the parties to brief the

applicability of the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) to the habeas petition.

Following briefing, the court issued an order determining

that AEDPA applied and set a briefing schedule for merits

briefing.

After merits review, the district court upheld the

California Supreme Court’s decision as reasonable within

the meaning of 28 U.S.C. § 2254(d). The district court

concluded the state-court decision was objectively

reasonable in its denial of Clark’s claims as to (1) the denial

of his pretrial requests for self-representation, (2) the

revocation of Faretta status during trial, and (3) the denial

of his request for substitute counsel pursuant to Marsden.

CLARK V. BROOMFIELD 7

The district court issued a certificate of appealability as to

Clark’s claims of Faretta and Marsden errors.

II

A

AEDPA applies to federal habeas petitions that were not

pending prior to April 24, 1996. An application for federal

habeas relief that was pending before AEDPA’s effective

date is not subject to AEDPA’s limitations. See Lindh v.

Murphy, 521 U.S. 320, 336 (1997); Jeffries v. Wood, 114

F.3d 1484, 1499 (9th Cir. 1997) (en banc), partially

overruled on other grounds, Gonzalez v. Arizona, 677 F.3d

383, 390 (9th Cir. 2012).

After Lindh, the Supreme Court clarified that filings that

are not an “actual application” seeking an “adjudication on

the merits of the petitioner’s claims” do not constitute a

pending habeas petition subject to pre-AEDPA standards.

Woodford v. Garceau, 538 U.S. 202, 207–08, 210 n.1

(2003). Garceau held that pre-application filings, such as a

request for appointment of counsel or a motion for stay of

execution, do not constitute an “actual application” that

seeks an “adjudication” of the claims “on the merits” are

subject to AEDPA. Id.

To determine what constitutes “an actual application for

habeas relief” within the meaning of Garceau, 538 U.S. at

208, district courts may look to Rule 2 of the Rules

Governing Section 2254 Cases, which sets forth criteria that

the form of a habeas application must satisfy. Pursuant to

Rule 2(c), a § 2254 petition must:

(1) specify all the grounds for relief available

to the petitioner;

8 CLARK V. BROOMFIELD

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly

handwritten; and

(5) be signed under penalty of perjury by the

petitioner or by a person authorized to sign it

for the petitioner under 28 U.S.C. § 2242.

Rules Governing Section 2254 Cases in the United States

District Courts (effective Feb. 1, 1997, as amended to Jan. 5,

2023).

A “failure to [sign and] verify the petition is a defect

that . . . the district court may, if it sees fit, disregard,” and

“[s]ummary dismissal is appropriate only where the

allegations in the petition are vague [or] conclusory or

palpably incredible, or patently frivolous or false.”

Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990)

(internal quotation marks and citations omitted).

In addition, “[c]onclusory allegations which are not

supported by a statement of specific facts do not warrant

habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir.

1994); see Wacht v. Cardwell, 604 F.2d 1245, 1246–47 &

n.2 (9th Cir. 1979) (describing the “specificity requirement”

and recognizing that “[b]ald assertions and conclusory

allegations” are insufficient to state a federal habeas claim).

Pro se habeas petitions are construed more liberally than

counseled petitions, see, e.g., Haines v. Kerner, 404 U.S.

519, 520–21 (1972) (per curiam); Peterson v. Lampert, 319

F.3d 1153, 1159 (9th Cir. 2003) (en banc), but the petition

must still allege sufficient facts to state a cognizable claim

under 28 U.S.C. § 2254, see Porter v. Ollison, 620 F.3d 952,

958 (9th Cir. 2010) (noting that despite the “liberal

CLARK V. BROOMFIELD 9

construction” afforded pro se pleadings, a pro se petitioner

“is not entitled to the benefit of every conceivable doubt”).

Here, as we have discussed, Clark’s initial filing sought

appointment of counsel to investigate potential claims and

specifically disclaimed that his listing of potential issues for

counsel to investigate was complete, saying it would be

“silly” to do so. Clark did not “state the facts supporting

each ground.” See Rules Governing Section 2254 Cases; see

also James, 24 F.3d at 26. Except for requesting

appointment of counsel, Clark did not seek further relief. In

addition, Clark did not sign the document under penalty of

perjury or verify it. The district court docketed the filing as

a request for counsel and stay of execution.

Thus, pursuant to Garceau, the October 1992 filing did

not constitute an “actual application” that sought

“adjudication” of the claims “on the merits.” Rather, like

Garceau, the relief sought was appointment of counsel and

stay of execution.

Appointed counsel subsequently filed a habeas petition

on April 23, 1997 setting forth twenty-seven claims for

relief. The petition was not styled as an amended complaint

or amended habeas petition.

Therefore, the district court correctly concluded that the

prior filing by Clark was not an “actual application” that

sought “adjudication” on the merits and that AEDPA applied

to Clark’s operative habeas petition.

B

Under AEDPA, a federal court may grant habeas relief

only when the state-court decision was (1) “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

10 CLARK V. BROOMFIELD

United States,” 28 U.S.C. § 2254(d)(1), or (2) “based on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding,” id.

§ 2254(d)(2).

A state-court decision is contrary to clearly established

federal law if the state court applies a rule that contradicts

controlling Supreme Court authority or “if the state court

confronts a set of facts that are materially indistinguishable

from a decision” of the Supreme Court but nevertheless

arrives at a different result. Williams v. Taylor, 529 U.S.

362, 406 (2000). A state court’s decision is an

“unreasonable application” of federal law if it “identifies the

correct governing principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Lambert v. Blodgett, 393 F.3d 943,

974 (9th Cir. 2004) (internal quotations and citation

omitted). An unreasonable application of clearly established

federal law must be “objectively unreasonable, not merely

wrong; even clear error will not suffice.” White v. Woodall,

572 U.S. 415, 419 (2014) (internal quotation marks and

citation omitted).

The Supreme Court has explained that “clearly

established Federal law” in § 2254(d)(1) “refers to the

holdings, as opposed to the dicta, of [the Supreme Court] as

of the time of the relevant state-court decision.” Williams,

529 U.S. at 412. Given a Supreme Court holding in one

context, circuit law cannot “bridge the gap” to reach a new

context, Glebe v. Frost, 574 U.S. 21, 24 (2014), even as a

“logical next step,” White, 572 U.S. at 427. But we may

“look to circuit precedent to ascertain whether it has already

held that the particular point in issue is clearly established by

Supreme Court precedent.” Marshall v. Rodgers, 569 U.S.

58, 64 (2013).

CLARK V. BROOMFIELD 11

In applying these standards on habeas review, we look

through unexplained state-court decisions and review the

“last reasoned decision” by the state court—here, the

California Supreme Court’s decision on direct appeal.

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

A summary denial is an adjudication on the merits and

entitled to deference. See Harrington v. Richter, 562 U.S.

86, 99 (2011); Ochoa v. Davis, 50 F.4th 865, 888 (9th Cir.

2022). Thus, the presumption that the unexplained state-

court decision adopted the same reasoning as the lower-court

decision can be rebutted by a showing that the unexplained

affirmance relied—or most likely relied—on different

grounds, “such as alternative grounds for affirmance that

were briefed or argued to the state supreme court or obvious

in the record it reviewed.” Wilson v. Sellers, 138 S. Ct. 1188,

1192 (2018).

III

The district court correctly concluded that the California

Supreme Court’s determination that Clark’s Faretta rights

were not violated was not contrary to, or involved an

unreasonable application of, clearly established federal law,

as determined by the Supreme Court of the United States.

Under Faretta, a criminal defendant has a Sixth

Amendment right to represent himself if he “knowingly and

intelligently” waives his right to counsel. Faretta, 422 U.S.

at 835. To knowingly and voluntarily waive the right to

counsel and assert the right to self-representation, a

defendant’s request must be timely. See Marshall v. Taylor,

395 F.3d 1058, 1060–61 (9th Cir. 2005).

The Faretta request must also be unequivocal. See

Faretta, 422 U.S. at 835. “If [a defendant] equivocates, he

is presumed to have requested the assistance of counsel.”

12 CLARK V. BROOMFIELD

Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). A

defendant’s expression of a preference for counsel over

representing himself may suggest that a request is equivocal.

See Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir. 2007)

(holding that a petitioner’s request for self-representation

was equivocal where his “requests for self-representation

were concessions that he really did not want to represent

himself, but that he felt the court and [defense counsel] were

forcing him to do so”). “Faretta does not require a trial

judge to permit ‘hybrid’ representation.” McKaskle v.

Wiggins, 465 U.S. 168, 183 (1984); see United States v.

Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (finding

no abuse of discretion where the district court denied a

petitioner’s self-representation requests that “were always

accompanied by his insistence that the court appoint

‘advisory’ or ‘standby’ counsel”).

Emotional or impulsive requests for self-representation

are also considered to be equivocal. See Hernandez, 203

F.3d at 622 n.11 (explaining that an “emotional outburst in

response to [a] judge’s ruling” is equivocal); Jackson v. Ylst,

921 F.2d 882, 888–89 (9th Cir. 1990) (holding that a

“request for self-representation that is ‘a momentary caprice

or the result of thinking out loud,’” such as an “impulsive

response to the trial court’s denial of [a defendant’s] request

for substitute counsel,” is an equivocal request). In assessing

whether a request was unequivocal, courts should consider

the “whole record,” Walker v. Loggins, 608 F.2d 731, 734

(9th Cir. 1979), and must “indulge in every reasonable

presumption against waiver” of counsel, Brewer v. Williams,

430 U.S. 387, 404 (1977).

Faretta also made it clear that a constitutional “right of

self-representation is not a license to abuse the dignity of the

courtroom,” and therefore, “the trial judge may terminate

CLARK V. BROOMFIELD 13

self-representation by a defendant who deliberately engages

in serious and obstructionist misconduct.” 422 U.S. at 834

n.46; see McKaskle, 465 U.S. at 173 (explaining that the

right of self-representation is contingent upon a defendant

being “able and willing to abide by rules of procedure and

courtroom protocol”).

A

The California Supreme Court’s decision holding that

Clark’s pre-trial Faretta request in July 1982 was equivocal

was not contrary to, or an unreasonable application of,

clearly established federal law, as determined by the United

States Supreme Court.

At the July 26, 1982 hearing, Clark became upset when

the trial court denied his counsel’s discovery motions. In

response, Clark purported to dismiss his lead counsel, saying

“I’m thoroughly capable of handling this case.” Clark did

not purport to dismiss the other counsel appointed to

represent him, nor did he unequivocally demand self-

representation.

Citing Faretta, the California Supreme Court held that

Clark “did not unequivocally assert his right to self-

representation” and “never expressed the desire to discharge

both his appointed attorneys and to proceed pro se.” Clark,

833 P.2d at 587 (internal quotation marks and citation

omitted).

This holding was objectively reasonable within the

meaning of § 2254(d).

First, the record indicates that the remarks were part of

an emotional outburst by Clark in response to the partial loss

of the discovery motion. See Hernandez, 203 F.3d at 622

14 CLARK V. BROOMFIELD

n.11 (explaining that an “emotional outburst in response to

[a] judge’s ruling” is equivocal).

Second, Clark “never expressed his desire to discharge

both his appointed attorneys.” Clark, 833 P.2d at 587. By

attempting to dismiss one attorney and not the other, Clark

effectively sought hybrid representation. Indeed, in

considering the whole record throughout the proceedings,

Walker, 608 F.2d at 734, Clark asked to represent himself

with the second attorney as co-counsel.

Accordingly, the California Supreme Court did not

unreasonably conclude that Clark’s July 26 statements did

not clearly and unequivocally convey a request for self-

representation because neither Faretta nor any other

Supreme Court case law has addressed a situation where the

defendant sought to dismiss one of multiple attorneys. See

McKaskle, 465 U.S. at 183 (“Faretta does not require a trial

judge to permit ‘hybrid’ representation . . . .”); White, 572

U.S. at 427 (explaining that “relief is available under

§ 2254(d)(1)’s unreasonable-application clause if, and only

if, it is so obvious that a clearly established rule applies to a

given set of facts that there could be no fairminded

disagreement on the question” (internal quotation marks and

citation omitted)).

B

The California Supreme Court’s decision that Clark’s

Faretta request in August 1982 was untimely was not

contrary to, or an unreasonable application of, clearly

established federal law, as determined by the United States

Supreme Court.

When Clark made his purported August Faretta demand,

the case had a “firm” setting for trial that day. The record

CLARK V. BROOMFIELD 15

supports the California Supreme Court’s conclusion that the

request was made, in effect, “on the eve of trial.” Clark, 833

P.2d at 588. The trial was postponed briefly to resolve

motions, but was considered “trailing,” meaning that it could

commence at any time.

Although Faretta established a timing element, there is

no Supreme Court case “directly” establishing when a

request is timely. Marshall, 395 F.3d at 1060. “The only

Supreme Court decision to discuss the timeliness of a request

to proceed pro se is the Faretta decision itself.” Burton, 816

F.3d at 1141 (quoting Moore v. Calderon, 108 F.3d 261,

2654 (9th Cir. 1997). As we held in Marshall, “[n]o

Supreme Court case has directly addressed the timing of a

request for self-representation” and the Supreme Court has

not delineated the “precise contours” of Faretta’s timeliness

requirement. 395 F.3d at 1060–61.

AEDPA requires preexisting Supreme Court authority

that “squarely addresses the issue” at hand and provides a

“clear answer” to it. Wright, 552 U.S. at 126. An

“indirect[]” ruling is insufficient. Marshall, 395 F.3d at

1060; see Carter v. Davis, 946 F.3d 489, 509 (9th Cir. 2019)

(“AEDPA requires more than pointing to implicit holdings

or dicta; it requires that the law be clearly established.”).

And there is no other Supreme Court case directly

addressing the timing element of a Faretta request.

“In the absence of clear Supreme Court precedent

defining when a Faretta request becomes untimely,” a

California state court “[i]s free to determine that [issue]

under California’s Windham rule.” Marshall, 395 F.3d at

1062 (citing People v. Windham, 560 P.2d 1187 (Cal.

1977)). Because the Supreme Court has not held that the

actual start date of a trial is the lynchpin for the analysis, or

16 CLARK V. BROOMFIELD

“squarely addressed” whether and in what circumstance the

prospect of a continuance affects the timing of a Faretta

request, the California Supreme Court’s decision not to

tether the analysis to the actual start date of the trial was not

unreasonable within the meaning of § 2254(d). Wright, 552

U.S. at 125.

The district court also properly held that the purported

August Faretta demand was, in fact, equivocal. The record

supports this conclusion. Clark again only sought to

discharge one of his two attorneys and declared himself

“satisfied” with the other attorney. He sought co-counsel

status with his remaining attorney. Clark then referred to

his lead attorney as either his ex-counsel or current counsel,

“however the court decides,” but referred to the other

attorney as “fully qualified” and “fully competent” and

stated that he had the “utmost faith in her.” Thus, the record

supports the district court’s conclusion that the purported

August Faretta assertion was equivocal.

In sum, the California Supreme Court’s decision that the

August request did not violate Faretta was not an objectively

unreasonable application of Faretta, and was not contrary to,

or an unreasonable application of, clearly established federal

law as determined by the United States Supreme Court.

IV

The district court properly concluded that the California

Supreme Court’s opinion holding that revoking Clark’s pro

per status during trial did not violate Faretta was not

contrary to, or an unreasonable application of, clearly

established federal law, as determined by the United States

Supreme Court.

CLARK V. BROOMFIELD 17

At various times during the trial, Clark expressed his

dissatisfaction with his lead counsel and attempted to re-

assert his rights under Faretta, although in an equivocal

manner, requesting that his other attorney remain as his “co-

counsel.” Clark was ordered removed from the courtroom

after one outburst concerning his lawyer.

On October 13, Clark renewed his request for self-

representation. The trial court advised him, “Since the time

you’ve come into this court, I’ve indicated to you that you

can go pro per, if you make a knowing[], intelligent waiver,

as required by Faretta; that upon your doing that, you will

receive no co-counsel, no assistance of counsel of any kind.”

Shortly thereafter, Clark stated, “I’m pro per at this time.

The attorneys are dismissed.”

Before granting Clark’s Faretta motion, the trial court

warned Clark that it would not allow him to abuse the

privilege and would take the privilege away if he abused it.

Additionally, the trial judge advised Clark of his

constitutional rights; of the fact that if granted permission to

proceed in pro per, he was giving up his right to be

represented by a lawyer; and of his responsibilities as his

own counsel.

The court specifically emphasized the warning about

misconduct, stating:

This is the one I want you to hear. Hear it

loud and clear:

“I understand the right to act in pro per is not

a license to abuse the dignity of the court. I

understand that the court may terminate my

right to self-representation in the event that I

engage in serious misconduct and obstruct

18 CLARK V. BROOMFIELD

the conduct and progress of the trial. I

understand that in the event that happens, I

will have to be represented by a lawyer, who

will then take over the case at whatever stage

it may be in.”

Do you understand that?

Clark twice affirmed that he understood.

Clark also signed a document acknowledging that,

among other things, the court might terminate his right to

self-representation in the event he engaged in serious

misconduct and obstructed the conduct and progress of the

trial. The judge then appointed his two attorneys as standby

counsel, to sit in the courtroom and observe, but not to assist

Clark. The court then again warned Clark, “If you abuse the

process of the court, the minute the court feels that you have

abused its process, your pro per privileges will be revoked

and [your attorneys] will step back in[.]” Clark said that he

understood. After the court found Clark’s waiver of counsel

to be knowing and intelligent, Clark said he had “no desire”

to be his own attorney but he was “forced to.”

From October 13, 1982 until November 1, 1982, Clark

represented himself at trial and cross-examined 26

witnesses. On November 1, 1982, the trial court denied

Clark’s motions for appointment of a law clerk and to recuse

the district attorney’s office as “frivolous.” Clark became

upset. The judge then ordered the jury back into the

courtroom and asked Clark to proceed with his examination.

Clark, in front of the jury, then stated that he “stands mute

throughout the rest of the trial.” The trial court excused the

jury and determined Clark had renounced his pro per status

“[o]n the grounds that [Clark] decided to stand mute this

CLARK V. BROOMFIELD 19

morning.” The trial was continued until the next day. When

it resumed on November 2, 1982, Clark agreed to defend

himself rather than stand mute, and the trial court granted his

motion to reinstate his pro per status and privileges. Clark

then resumed his cross-examination.

From November 2, 1982 until December 6, 1982, Clark

continued to represent himself at trial. However, after a

series of outbursts and questioning that the trial court found

improper, and after accusing the judge of various acts of

misconduct, the trial court revoked his pro per status.

On appeal to this Court, Clark challenges the temporary

revocation of his pro per status on November 1 in light of

his “stand mute” declaration.

The California Supreme Court upheld the trial court’s

November 1, 1982 revocation of Clark’s self-representation

after Clark threatened to “stand mute” in front of the jury.

The court held that Clark’s conduct during the proceedings

was “manipulative, obstructive and abusive,” id. at 597; see

id. at 638 (Kennard, J. dissenting) (referring to Clark as “an

obstreperous, manipulative defendant” and the trial as a

“judge’s nightmare”) and that Clark sought to create “as

much disruption as possible,” id. at 599 (majority opinion).

In generally addressing Clark’s claims of trial-court

error, the California Supreme Court reasoned that “[a]ny

dispassionate reading of this record” reveals that Clark “was

playing games with the court on [the Faretta] issue.” Id. at

586 (citation omitted); see id. at 599 (“[Faretta] held

generally that a defendant may represent himself. It did not

establish a game in which defendant can engage in a series

of machinations, with one misstep by the court resulting in

reversal of an otherwise fair trial.”). In support of this

conclusion, the court underscored that Clark wrote a letter

20 CLARK V. BROOMFIELD

during the proceedings in which he “boasted that he had

‘gone “Pro per” at least 3 times’ and had the ‘case so fraught

with controversial Judge’s rulings it will be an appeals court

NIGHTMARE, should it ever get so far.’” Id. at 581 n.3.

The court held that Clark had “attempted to manufacture

reversible error,” id. at 586 and explained that Clark’s

“actions presented the court with a ‘judgment call’ under

combat conditions upon which we may, and must, give

deference to the trial court,” id. at 600.

The California Supreme Court held that the trial court

“justifiably viewed [Clark’s] statement, or threat, that he

would ‘stand mute’ not as a conscious decision to simply

force the prosecution to its proof, but as part of a deliberate

course of conduct designed to cause as much disruption as

possible.” Id. at 599. Accordingly, the court held that the

trial court properly temporarily revoked Clark’s pro per

status until he chose to resume representing himself. Id. at

598–99 (internal citation omitted).

The California Supreme Court’s conclusion that Clark’s

Faretta right was not violated was not unreasonable, and the

record supports its determination that Clark engaged in a

“deliberate course of conduct designed to create as much

disruption as possible.” Clark, 833 P.2d at 599.

Clark had threatened to “stand mute” as a tactic before

and had instructed his attorneys to “stand mute” as a protest.

When this tactic failed, Clark readily abandoned it. The

morning after the revocation, Clark apologized, said he had

changed his mind, and asked for reinstatement of his self-

representation. The state court did not unreasonably

determine that if Clark had genuinely wanted to “stand

mute,” he would have done so whether he was self-

represented or not. Rather, after a cooling-off period, Clark

CLARK V. BROOMFIELD 21

abandoned his stand-mute stance, asked for self-

representation, and affirmatively defended himself.

On this record, the California Supreme Court’s holding

that Clark’s stand-mute stance and other tactics were

disingenuous was not unreasonable. See id. at 599–600

(holding that Faretta “did not establish a game in which a

defendant can engage in a series of machinations, with one

misstep by the court resulting in a reversal of an otherwise

fair trial,” or “a charade in which a defendant can continually

manipulate the proceedings in the hope of eventually

injecting reversible error into the case no matter how the

court rules”); Faretta, 522 U.S. at 834 n.46; McKaskle, 465

U.S. at 173.

The state court’s decision to consider Clark’s stand-mute

statement in light of the record as a whole was not an

unreasonable application of Faretta, which permits the

termination of self-representation when a defendant

“deliberately engages in serious and obstructionist

misconduct.” 522 U.S. at 834 n.46.

In sum, the district court properly concluded that the

California Supreme Court decision was not an unreasonable

application of clearly established federal law as determined

by the United States Supreme Court.

V

The district court properly concluded that the California

Supreme Court’s opinion holding that Clark’s Marsden

rights were not violated was not contrary to, or an

unreasonable application of, clearly established federal law,

as determined by the United States Supreme Court.

The Sixth Amendment guarantees a criminal defendant

effective representation by counsel. See Strickland v.

22 CLARK V. BROOMFIELD

Washington, 466 U.S. 668, 686 (1984). However, a

defendant is not entitled to an appointed attorney of his

choice, see Caplin & Drysdale, Chartered v. United States,

491 U.S. 617, 624 (1989), nor is he entitled to a “meaningful

relationship” with counsel, Morris v. Slappy, 461 U.S. 1, 13–

14 (1983).

Under California law, a motion for the appointment of

substitute counsel, typically based on a claim “that appointed

counsel’s representation has in some significant measure

fallen below the level required by the Sixth Amendment,”

Schell v. Witek, 218 F.3d 1017, 1021 (9th Cir. 2000) (en

banc), is called a “Marsden motion.” The “ultimate

constitutional question” upon review in federal court “is not

whether the trial court ‘abused its discretion,’” but whether

the denial of a Marsden motion “actually violated [the

petitioner’s] constitutional rights” because the conflict

“bec[a]me so great that it resulted in a total lack of

communication or other significant impediment that resulted

in turn in an attorney-client relationship that fell short of that

required by the Sixth Amendment.” Id. at 1026.

A defendant is “entitled to substitute counsel if an

‘irreconcilable conflict’ between a defendant and his counsel

prevents counsel from rendering effective assistance.”

Michaels v. Davis, 51 F.4th 904, 938 (9th Cir. 2022)

(quoting Schell, 218 F.3d at 1025). A defendant is not

entitled to substitution of counsel, however, because of his

own refusal to cooperate with counsel due to a “dislike or

distrust” of counsel, Plumlee v. Masto, 512 F.3d 1204, 1211

(9th Cir. 2008) (en banc), or based on a conflict of his “own

making,” Schell, 218 F.3d at 1026.

“An irreconcilable conflict” claim has been recognized

“only where there is a complete breakdown in

CLARK V. BROOMFIELD 23

communication between the attorney and client, and the

breakdown prevents effective assistance of counsel.”

Stenson, 504 F.3d at 886. “Disagreements over strategic[]

or tactical decisions do not rise to [the] level of a complete

breakdown in communication.” Carter, 946 F.3d at 507–08

(quoting Stenson, 504 F.3d at 886). Indeed, “a lawyer may

properly make a tactical determination of how to run a trial

even in the face of his client’s incomprehension or even

explicit disapproval.” Schell, 218 F.3d at 1026 n.8 (quoting

Brookhart v. Janis, 384 U.S. 1, 8 (1966)).

“To determine whether a conflict rises to the level of

‘irreconcilable,’” this Court “looks to three factors: 1) the

extent of the conflict; 2) the adequacy of the inquiry by the

trial court; and 3) the timeliness of the motion for

substitution of counsel.” Stenson, 504 F.3d at 886 (citing

Moore, 159 F.3d at 1158–59). A trial court’s inquiry into

counsel’s performance on a motion to substitute counsel

should amount to “such necessary inquiry as might ease the

defendant’s dissatisfaction, distrust, and concern.” Id.

(quoting United States v. Garcia, 924 F.2d 925, 926 (9th Cir.

1991)). It should also provide a “sufficient basis for

reaching an informed decision” as to whether new counsel

should be appointed. Id. (quoting United States v.

McClendon, 782 F.2d 785, 789 (9th Cir.1986)). The

Supreme Court “has never held that an irreconcilable

conflict with one’s attorney constitutes a per se denial of the

right to effective counsel.” Carter, 946 F.3d at 508.

The California Supreme Court held that Clark’s

September 20, 1982 “diatribes” about his lead counsel did

not constitute a Marsden motion to discharge and substitute

counsel. Clark, 833 P.2d at 590. The court noted that Clark

did not seek to substitute counsel or complain about his other

24 CLARK V. BROOMFIELD

attorney—who he thought was “doing a fine job”—but

sought only to discharge his lead counsel. Id.

In this appeal, Clark does not claim that the trial court

was required to substitute counsel, nor does he identify an

act of alleged ineffective assistance of counsel or claim that

the trial court failed to conduct any hearing. Rather, as in his

state habeas claim, he asserts that an irreconcilable conflict

existed with his lead counsel and that the trial court was

required “to conduct an evidentiary hearing to decide

whether the conflict rose to a Sixth Amendment violation.”

That claim is foreclosed by our decision in Carter.

On direct appeal in Carter, the California Supreme Court

denied the petitioner’s claim that “the trial court erred by

failing to adequately inquire into the conflict” and by failing

to appoint new counsel. 946 F.3d at 506–07. On federal

habeas review, we deferred to that ruling because the

Supreme Court “has never held that an irreconcilable

conflict with one’s attorney constitutes a per se denial of the

right to effective counsel.” Id. at 508.

Here, Clark asserts only that his conflict with his lead

counsel “guaranteed an inadequate defense presentation,”

but he neither raises a claim of ineffective assistance nor

identifies a single act of ineffectiveness. Accordingly,

because Clark’s claim is precisely the kind of per se claim

rejected by Carter as ungrounded in any clearly established

Supreme Court authority, “[t]his proves fatal to [Clark’s]

claim.” Id.

Clark’s request for a federal evidentiary hearing as to the

conflict also fails. First, an evidentiary hearing is precluded

by Cullen v. Pinholster, 563 U.S. 170, 181–82 (2011), which

generally limits federal habeas review to the state-court

record. See Gulbrandson v. Ryan, 738 F.3d 976, 993–94

CLARK V. BROOMFIELD 25

(9th Cir. 2013). Second, a hearing is precluded by 28 U.S.C.

§ 2254(e) because Clark failed to develop any additional

facts at trial and solely raised the claim on appeal. See Deere

v. Cullen, 718 F.3d 1124, 1148 (9th Cir. 2013). Third, Clark

has not alleged facts that, if proven true, would entitle him

to relief. See Rich v. Calderon, 187 F.3d 1064, 1067–68 (9th

Cir. 1999). Fourth, because the Supreme Court has never

recognized a Sixth Amendment claim based on an

irreconcilable conflict in the absence of resulting

ineffectiveness, a hearing would be futile. See Carter, 946

F.3d at 508. Thus, Clark’s substitute-counsel claim fails

under AEDPA review.

Therefore, the district court properly concluded that

Clark’s Marsden rights were not violated, nor was the

California Supreme Court decision contrary to or an

unreasonable application of clearly established federal law

as determined by the United States Supreme Court.

VI

In sum, the district court correctly concluded that the

California Supreme Court’s decision was not, in any respect,

contrary to or an unreasonable application of clearly

established federal law as determined by the United States

Supreme Court. We affirm the judgment of the district court

denying federal habeas relief.

AFFIRMED.