Petition for Writ of Certiorari — James R. W. Mitchell, Petitioner v. California
Supreme Court briefApr 12, 2021
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No. __________________
IN THE
SUPREME COURT OF THE UNITED STATES
___________________________
JAMES R.W. MITCHELL—PETITIONER
VS.
MARCUS POLLARD, Warden of Richard J. Donovan Correctional Facility,
an individual —RESPONDENT
PETITION FOR WRIT OF CERTIORARI
TO THE CALIFORNIA COURT OF APPEAL,
FIRST APPELLATE DISTRICT, DIVISION ONE
Steven S. Lubliner (California State Bar No. 164143)
LAW OFFICES OF STEVEN S. LUBLINER
P.O. Box 750639
Petaluma, CA 94975
Phone: (707) 789-0516
e-mail: sslubliner@comcast.net
Attorney for Petitioner James R.W. Mitchell
QUESTIONS PRESENTED
In McCoy v. Louisiana (2018) 138 S.Ct. 1500, this Court held that a
criminal defendant has a right of autonomy under the Sixth Amendment
to dictate the ultimate goals of the representation. This includes the right
to insist that defense counsel present a defense of complete innocence. (Id.
at pp. 1507-1509.) In McCoy, defense counsel violated that right when,
knowingly and over the defendant’s objection, he conceded to the jury that
the defendant committed the actus reus of a charged crime. (cite) This was
structural error. (Id. at p. 1511.) In California, under California’s own test
for retroactivity, McCoy applies retroactively on collateral review to cases
like petitioner’s that are otherwise final. (In re Smith (2020) 49 Cal. App.
5th 377, 391-392.) It is undisputed that, in this murder case, defense
counsel knew throughout the representation of petitioner’s insistence on a
defense of complete innocence and his refusal of a defense based on mental
state.
1. Regardless of whether defense counsel’s remarks amounted to a
concession of the actus reus of homicide, did defense counsel’s alternative
argument for voluntary manslaughter in defiance of petitioner’s wishes
violate petitioner’s Sixth Amendment right of client autonomy as set out
in McCoy?
i
2. Under McCoy, does a concession of guilt require an explicit
concession? Even though defense counsel never said, “I concede that
petitioner killed the victim,” did he nonetheless concede the actus reus of
homicide when, after arguing for an acquittal grounded substantially in
petitioner’s testimony of third party culpability, he began his alternative
argument for a manslaughter conviction by saying petitioner would not
approve of it and by twice invoking his duties as an officer of the court to
tell the jury the evidence suggested petitioner lied on the stand?
ii
LIST OF PARTIES
All parties appear in the caption of the case on the cover page.
LIST OF PRIOR PROCEEDINGS
• People v. James R.W. Mitchell, Marin County Superior Court No.
SC165475A. (Original trial and conviction. Judgment entered October
16, 2011);
• People v. James R.W. Mitchell, California Court of Appeal, First
Appellate District, No. A133094. (Direct appeal. Judgment affirmed
July 28, 2014);
• People v. James R.W. Mitchell, California Supreme Court No. S220833.
(Petition for discretionary review. Petition denied October 15, 2014);
• In re James Mitchell, California Court of Appeal, First Appellate
District, No. A150765. (Pro se habeas petition on sentencing issue.
Petition denied March 22, 2017);
• Mitchell v. Davey, U.S. District Court, Northern District of California
No. 15-cv-04919-VC. (Federal habeas petition. Petition denied October
18, 2016);
• Mitchell v. Davey, U.S. Court of Appeals, Ninth Circuit No. 16-17057.
(Federal habeas appeal following Ninth Circuit grant of certificate of
iii
appealability on two issues. Case currently stayed to allow petitioner to
litigate McCoy issues in state court);
• In the Matter of James R.W. Mitchell, on Habeas Corpus, Marin County
Superior Court No. SC210551A. (State habeas petition on McCoy
issues. Petition denied May 20, 2020);
• In re James R.W. Mitchell, on Habeas Corpus, California Court of
Appeal, First Appellate District, No. A160759. (State habeas petition
on McCoy issues. Petition denied November 18, 2020);
• In re James R.W. Mitchell, on Habeas Corpus, California Supreme
Court No. S265812. (Petition for discretionary review of McCoy issues
denied January 13, 2021).
iv
TABLE OF CONTENTS
QUESTIONS PRESENTED
i
LIST OF PARTIES
iii
LIST OF PRIOR PROCEEDINGS
iii
TABLE OF CONTENTS
v
INDEX TO APPENDIX
vii
TABLE OF AUTHORITIES
x
OPINIONS BELOW
1
JURISDICTION
1
CONSTITUTIONAL AND STATUTORY PROVISIONS
INVOLVED
1
STATEMENT OF THE CASE
2
STATEMENT OF FACTS
5
I.
Statement of Facts From Trial
5
II.
Relevant Procedural History at Trial
9
A. Defense Counsel Hanlon’s Closing Argument
9
B. Other Proceedings re Petitioner’s Requested Defense
10
REASONS FOR GRANTING THE PETITION
I. A Criminal Defendant Has a Sixth Amendment Right of
Client Autonomy to Preclude Defense Counsel from
Arguing for a Conviction of a Lesser Offense.
A. Introduction
15
15
15
v
TABLE OF CONTENTS (cont.)
B. The Merits
17
1. McCoy v. Louisiana
17
2. Defense Counsel Violated Petitioner’s Right of Client
Autonomy When, Knowingly and Against Petitioner’s
Wishes, He Argued for a Manslaughter Conviction
20
II. To Violate McCoy, Defense Counsel Need not Say “The
Defendant is Guilty” or Similar Words. Implied or Tacit
Concessions Such as Occurred in Petitioner’s Case Suffice. 25
CONCLUSION
30
vi
INDEX TO APPENDIX IN SUPPORT OF
PETITION FOR WRIT OF CERTIORARI
VOLUME 1-RELEVANT POST-CONVICTION PROCEEDINGS
Order of the Court of Appeal in In re James R.W. Mitchell, on Habeas Corpus,
California Court of Appeal, First Appellate District, No. A160759 Denying
Habeas Petition on McCoy Issues on the Merits
November 18, 2020 ...................................................................... 1
Order of the California Supreme Court in In re James R.W. Mitchell, on
Habeas Corpus, California Supreme Court No. S265812 Denying Petition for
Discretionary Review on McCoy issues
January 13, 2021 ......................................................................... 3
Order of the Marin County Superior Court in In the Matter of James R.W.
Mitchell, on Habeas Corpus, Marin County Superior Court No. SC210551A
Denying Habeas Petition on McCoy Issues on the Merits
May 20, 2020 ................................................................................ 4
Petition for Discretionary Review on McCoy Issues in In re James R.W.
Mitchell, on Habeas Corpus, California Supreme Court No. S265812
November 30, 2020 ....................................................................40
Petition for Writ of Habeas Corpus on McCoy Issues with Memorandum of
Points and Authorities in In re James R.W. Mitchell, on Habeas Corpus,
California Court of Appeal, First Appellate District, No. A160759
August 21, 2020 .........................................................................82
Opinion on Direct Appeal in People v. Mitchell, A133094
July 28, 2014 ............................................................................158
Order Denying Petition and Certificate of Appealability in Mitchell v. CSPCorcoran, Nor. Dist. No. 15-cv-4919
October 18, 2016 ......................................................................202
Petitioner’s Motion to Stay Habeas Appeal in Ninth Circuit Case 16-17057 to
Allow him to Pursue McCoy Issues in State Court
July 12, 2019 ............................................................................212
vii
Ninth Circuit Order in Case 16-17057 Granting Motion to Stay Habeas
Appeal to Allow Petitioner to Pursue McCoy Issues in State Court
July 17, 2019 ............................................................................223
Order Appointing Petitioner Counsel in Ninth Circuit Case 16-17057
August 15, 2017 .......................................................................225
VOLUME 2-RELEVANT TRIAL COURT PROCEEDINGS
Hearing Where Defense Counsel Hanlon and Rief Substitute as Counsel for
Petitioner (Excepts)
September 1, 2010 ..................................................................226
In Camera Hearing on Need for DNA Testing and Defense Counsel’s Strategy
January 20, 2011 .....................................................................251
Hearing on Petitioner’s Request that Public Defender Relieve Defense
Counsel
May 10, 2011 ............................................................................256
In Camera Hearing on Request for Investigative Funds and Defense
Counsel’s Strategy
May 25, 2011 ............................................................................264
Faretta Hearing on Petitioner’s Request to Represent Himself
June 10 & 13, 2011 ..................................................................272
In Camera Hearing on Defense Counsel’s Motion to Withdraw after Denial of
Petitioner’s Faretta Request
June 13, 2011 ...........................................................................304
Hearing on Petitioner’s Competency After Denial of Petitioner’s Faretta
Request and Defense Counsel’s Motion to Withdraw
June 13 & 14, 2011 ..................................................................319
Defense Counsel’s Opening Statement at Trial
June 21, 2011 ...........................................................................328
viii
Trial Court Proceedings on Jury Instructions on Charge of First-Degree
Murder and Lesser Homicides
July 6 & 7, 2011 .......................................................................334
Defense Counsel’s Closing Argument at Trial
July 7 & 8, 2011 .......................................................................344
In Camera Hearing on Petitioner’s Motion for New Counsel for Sentencing
and Possible New Trial Motion and Defense Counsel’s Related Motion to
Withdraw
August 16, 2011 ......................................................................411
ix
TABLE OF AUTHORITIES
CASES
Cooke v. State, 977 A.2d 880 (Del. 2009) .............................................. 16, 22, 23
Faretta v. California, 422 U.S. 806 (1975) ................................................passim
Harris v. New York (1971) 401 U.S. 222........................................................... 18
In re Smith (2020) 49 Cal. App. 5th 377 ........................................................ 5, 17
McCoy v. Louisiana, 138 S.Ct. 1500 (2018) ...............................................passim
Merck v. State, 298 So.3d 1120 (Fla. 2020)................................................. 28, 29
Nix v. Whiteside, 475 U.S. 157 (1986) ............................................................... 27
People v. Flores, 34 Cal. App. 5th 270 (2019) .................................................... 15
People v. Franks, 35 Cal. App. 5th 883 (2019) ............................................. 29, 30
People v. Maynard, 176 A.D. 3d 512 (N.Y. App. Div. 2019) ............................ 29
State v. Carter, 270 Kan. 426 (2000) ..................................................... 16, 22, 23
Truelove v. State, 945 N.W. 2d 272 (N.D. 2020) ............................................... 28
United States v. Rosemond, 958 F.3d 111 (2d Cir. 2020) ................................ 28
STATUTES
28 U.S.C. § 1257 ................................................................................................... 1
RULES
Supreme Court Rule 10 ............................................................................... 16, 25
CONSTITUTIONAL PROVISIONS
U.S. Constitution, Sixth Amendment ................................................................. 1
x
OPINIONS BELOW
The opinions of the Marin County Superior Court and the California
First District Court of Appeal denying relief on the merits and the order of
the California Supreme Court denying discretionary review are unpublished.
(1 App. 1, 3, 4.)
JURISDICTION
On November 18, 2020, the California First District Court of Appeal
denied petitioner’s habeas petition on the merits. (1 App. 1.) The petition
alleged that defense counsel had violated his right to client autonomy under
the Sixth Amendment as interpreted in McCoy v. Louisiana, 138 S.Ct. 1500
(2018). (1 App. 82-157.) On January 13, 2021, the California Supreme Court
denied petitioner’s petition for discretionary review of that decision. (1 App.
3.) The jurisdiction of this Court is invoked under 28 U.S.C. § 1257(a). This
petition is timely under Supreme Court rule 13.1.
CONSTITUTIONAL PROVISIONS, STATUTES AND RULES
INVOLVED
U.S. Constitution, Sixth Amendment
“In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the state and district wherein
the crime shall have been committed, which district shall have been
previously ascertained by law, and to be informed of the nature and cause of
1
the accusation; to be confronted with the witnesses against him; to have
compulsory process for obtaining witnesses in his favor, and to have the
assistance of counsel for his defense.”
STATEMENT OF THE CASE
A jury convicted petitioner of first-degree murder, kidnapping of a
child, stalking, and related charges, with weapons use enhancements. He was
acquitted of a special circumstance that the murder was committed for
purposes of kidnapping. On August 16, 2011, petitioner was sentenced to 35
years to life in state prison. (1 App. 159.)
On direct appeal, the California Court of Appeal rejected his arguments
that revolved around his entitlement to dictate a defense of complete
innocence: 1) that because defense counsel concealed their intention to argue
for voluntary manslaughter, petitioner lost the chance to replace them with
counsel who would follow his instructions, effectively denying him counsel of
his choice; 2) that the trial court violated his Sixth Amendment rights by, at
points in the trial when petitioner had doubts that defense counsel would
follow his instructions, denying his requests to replace them with the Public
Defender, denying his request for self-representation, and denying counsel’s
requests to withdraw; and 3) that his Sixth Amendment right to counsel was
violated when the trial court let counsel refuse to participate at sentencing
2
because he did not want to argue against petitioner’s wishes again. As the
issue arose, the Court rejected the view that petitioner was entitled to dictate
a defense of complete innocence. The decision to concede guilt as appropriate
was a strategic decision left to defense counsel, to be reviewed for ineffective
assistance, which it was not. (1 App. 178-179, 181-182, 184, 188.) The
California Supreme Court denied petitioner’s petition for discretionary
review of the same issues on October 15, 2014. (1 App. 203.)
Petitioner filed a pro se petition for writ of habeas corpus in the
Northern District of California. Mitchell v. Davey, 15-cv-04919-VC. He pled
all the claims from his state appeal. On October 18, 2016, the district court
denied the petition and a certificate of appealability. (1 App. 202-211.)
The Ninth Circuit granted a certificate of appealability on the issues of
“whether the state trial court violated appellant’s constitutional rights when
it (1) denied his request for self-representation under Faretta v. California,
422 U.S. 806 (1975); and (2) denied his motion to dismiss retained counsel at
sentencing, including whether counsel rendered ineffective assistance at
sentencing.” (1 App. 214.) The undersigned was appointed to represent
petitioner under the Criminal Justice Act. (1 App. 225.)
The undersigned also briefed two uncertified issues, as the Rules of
Court permit. They were: “Mitchell’s Sixth Amendment Right to Counsel Was
3
Violated by Defense Counsel’s Overriding of His Decision Not to Concede
Guilt of Any Form of Homicide” and “The State Court of Appeal’s Conclusion
That Mitchell’s Request for New Counsel a Month Before His Faretta Request
Was Properly Denied Was Unreasonable Because It Unreasonably Discounts
Mitchell’s Purpose of Seeking Counsel Who Would Limit His Defense to
Complete Innocence.” (1 App. 214.)
The unifying theme was petitioner’s entitlement to insist on a defense
of complete innocence. The opinion in McCoy v. Louisiana (2018) 138 S.Ct.
1500 and predecessor cases from this Court figure prominently. (1 App. 214215.) In its answering brief, respondent argued that McCoy was irrelevant
because it post-dated petitioner’s state court appeal and was unexhausted.
Respondent also argued that McCoy was distinguishable because petitioner’s
defense counsel argued alternative theories of innocence and guilt of the
lesser crime of voluntary manslaughter. (1 App. 215.)
On July 17, 2019, prior to the filing of a reply brief, the Ninth Circuit
granted petitioner’s motion to stay his appeal so that he could seek state
habeas relief premised on McCoy. (1 App. 212-224.)
On October 3, 2019, petitioner, represented by the undersigned, filed a
petition for writ of habeas corpus in Marin County Superior Court in
California. The Superior Court issued an Order to Show Cause and appointed
4
counsel. On May 20, 2020, the Superior Court denied relief on the merits.1
The Court found no procedural bars. (1 App. 4-39.)
On August 21, 2020, petitioner, represented by the undersigned, filed a
new habeas petition in the California Court of Appeal. (1 App. 82-157.) On
November 18, 2020, the Court denied relief on the merits. It did not interpret
defense counsel’s argument as conceding petitioner’s guilt of the charged
crime. It did not address petitioner’s other argument that merely arguing for
a manslaughter conviction against petitioner’s wishes violated McCoy. It did
not question retroactivity or impose procedural bars. (1 App. 1-2.)
On November 18, 2020, petitioner filed a petition for discretionary
review in the California Supreme Court on the two issues presented here. (1
App. 40-81.) The Court denied the petition on January 13, 2021. (1 App. 3.)
STATEMENT OF FACTS
I. Statement of Facts from Trial2
The murder victim was petitioner’s girlfriend, D.K. The kidnapping
victim was his daughter with her. The relationship began in August 2007.
1 The Superior Court also ruled that McCoy was not retroactive, but this
decision predated the higher court holding that McCoy was retroactive under
California’s test for retroactivity on collateral review. (In re Smith (2020) 49
Cal. App. 5th 377, 391-392.)
2 This Statement of Facts is derived from the state court of appeal’s opinion.
(1 App. 159-163.)
5
They moved in together two weeks later. Petitioner used drugs and
committed acts of domestic violence. Arrests led to charges and restraining
orders. The couple reunited from time to time, sometimes at D.K.’s initiation.
Petitioner made many calls to D.K.’s phone in the weeks preceding her
death. He also called her best friend and said that he knew he had messed up
but would do anything to get back with D.K. and his daughter. Between June
26 and July 12, 2009, he called D.K. 78 times, but she never answered until
July 12. Petitioner made no calls to her after 6:42 p.m. that day.
Shortly before 7:00 p.m. on July 12, 2009, D.K.’s elderly neighbors,
Bessie and Nick, heard her scream. Nick saw a man hitting D.K. on the head
with a baseball bat. He told Bessie to call the police “because he’s here.”
Bessie told the 911 dispatcher that the child’s father was beating D.K.
Bessie saw a white man run past with a screaming child. He had a
shaved head and wore a black t-shirt and jeans. Other neighbors gave
descriptions consistent with petitioner’s—white, bald, heavy set. There were
inconsistencies in the description of the clothing; one neighbor said the man
wore a white t-shirt. The lineup process was inconclusive, but everyone said
one person was involved in beating D.K. and carrying off the child.
D.K. was dead when police arrived. A baseball bat was found. It had
petitioner’s left index fingerprint on it near the grip. Petitioner is left-handed.
6
Petitioner’s cousin and brother got word that D.K. was dead. Both
called him that evening. Petitioner was crying, teary, and distraught. Both
heard the child in the background. The cousin asked petitioner if he knew
D.K. was dead. He said he did. He neither admitted nor denied killing her.
Petitioner told both men that he would take the child to Mexico rather than
surrender her. Alternatively, he might take her to his mother’s house.
Neither man knew petitioner to own a bat or play baseball or softball.
Petitioner’s cell phone was tracked, and his car was found. The minor
was unharmed, asleep in the front seat. D.K.’s blood was on her cheek.
Petitioner’s passport was in the center console. He was arrested nearby
without incident. He wore a red and navy-blue striped shirt and jeans.
Petitioner’s jeans had blood spatter that was determined to be D.K.’s
blood. The spatter pattern was consistent with beating D.K. on the head from
a few feet away while she was on the ground.
Trace DNA was found on the bat. D.K. was the primary contributor.
Neither petitioner nor the child could be excluded. There were two low-level
contributors. If petitioner was one, there was another unknown contributor.
The DNA sample included an allele foreign to both D.K. and petitioner.
7
Petitioner testified to a defense of mistaken identity. D.K. had invited
him over. He left home around 5:00 p.m. He wore a red and blue striped polo
shirt and jeans. Arriving, he parked and walked towards D.K.’s duplex.
Petitioner heard D.K. scream for help. He encountered two men, one
with a buzzed head in a white shirt, the other in a black t-shirt. Petitioner
fought with both men. The man in the black shirt hit him in the back with a
baseball bat. Petitioner tried to take it away. After more fighting, petitioner
chased the men. The man in the black t-shirt disappeared. The man in the
white shirt had the child. Petitioner confronted him, punched and kicked
him, and demanded the child. The man let him take her and ran away.
Petitioner went back up towards the duplex with the child. He heard
someone say to call 911. Remembering he had a restraining order, he decided
to leave before the police arrived.
Petitioner called his cousins from the road. He planned to go to a
cousin’s house to wait to hear from D.K. He did not want to call while the
police were there. Petitioner’s mother called and said D.K. was dead and that
people said he killed her. Petitioner said he needed to talk to his lawyer.
Petitioner did not see anyone hit D.K. with a bat. He had not known
she was dead when he left with the child. He did not know how blood got on
8
his jeans. A urine test showed he had no alcohol in his system and a small
amount of methamphetamine, indicative of use within five to seven days.
A softball coach testified that the bat might be used by a high school
player or small man or woman. D.K.’s mother had never seen the bat near
her home. Her other children had played baseball and softball; their bats had
been given away. The coroner testified that D.K.’s mother told him that the
bat may have been in the laundry room of the complex before the murder.
II. Relevant Procedural History at Trial
A. Defense Counsel Hanlon’s Closing Argument
The first part of Hanlon’s closing argument alluded generally to
petitioner’s innocence. He discussed petitioner’s likely state of mind as he
drove to see his daughter, the lack of proof that he brought the bat to the
premises, the weakness of the eyewitness identification, and the
inconclusiveness of the blood spatter evidence and the evidence that
petitioner touched the bat on the question of what petitioner actually did. (2
App. 355-396.)
Hanlon argued that petitioner’s testimony about fighting two men who
really killed D.K. was consistent with the inconsistent eyewitness testimony
about whether the killer wore a black or a white shirt. Hanlon did not
otherwise advocate for the credibility of petitioner’s testimony. He said that
9
the coincidence of petitioner coming upon two other men doing violence to
D.K. was one the jury would have to grapple with. (2 App. 396-398.)
Shifting gears, Hanlon then argued for a guilty verdict on a lesser
homicide, primarily manslaughter. (2 App. 398-408.) He argued, “What
happened . . . that led to a man beating in the brains of a woman he loved?” (2
App. 401.) He prefaced this by saying that his job was to advocate for his
client even if, impliedly, he disagreed with him. He said petitioner would not
agree with the argument he was about to make. (2 App. 398-399.) He said the
jury should not conclude that he did not believe his client, but the record
contained evidence that petitioner was lying. (2 App. 399-400.) Hanlon told
the jury, not once, but twice, that his duties as “an officer of the court”
required him to argue against petitioner’s wishes and inform the jury about
the possible falsity of his testimony. (2 App. 399.)
B. Other Proceedings re Petitioner’s Requested Defense.
On September 1, 2010, the trial court granted a motion to relieve
petitioner’s counsel Douglas Horngrad. Attorneys Stuart Hanlon and Sara
Rief were appointed. (2 App. 226-250.)
On January 20, 2011, the court held an in camera3 hearing. Hanlon
said that rather than proceed on a heat-of-passion manslaughter theory, they
3 All in camera hearings have been unsealed in prior proceedings.
10
would present the defense petitioner wanted, which was that he “did not
commit this crime and that there were other people who did.” Petitioner
would so testify. (2 App. 252.) To pursue this credibly would require DNA
testing on the bat and petitioner’s clothes. (2 App. 252-255.)
On May 10, 2011, petitioner asked the court to relieve Hanlon and Rief
and appoint the Public Defender. Petitioner believed Hanlon was not being
honest with him about the defense that he had been promised. Hanlon had
made no public statements about it. The court opined that one would expect
defense counsel to remain publicly non-committal about the defense theory.
(2 App. 258.) It denied the motion. (2 App. 262-263.)
On May 25, 2011, the court held an in camera hearing on Hanlon’s
request for additional defense funds. Hanlon said that petitioner would be
testifying that he did not commit the crime. Whether Hanlon actually argued
that would be up to him. (2 App. 265.)
Hanlon said there was substantial evidence that petitioner suffered
from psychiatric problems. When he was getting involved with the case, he
was told that petitioner had agreed to present a mitigating mental defense.
That turned out not to be the case. “Mr. Mitchell has consistently told me he
would not go forward with the [mental state] defense.” (2 App. 265-267.)
11
Hanlon said that his duties to petitioner extended beyond just deferring
to the defense he wanted to present. He was uncertain if he could put on a
defense that contradicted petitioner’s testimony. However, it was necessary
to investigate. (2 App. 267-268.) He asked for $25,000 to $30,000. The court
understood that petitioner was insisting on a defense of complete innocence,
with which Hanlon disagreed. (2 App. 269-270.) It refused to approve so much
money for “a conflicting defense that might not come into play in any event.”
(2 App. 270.)
On Friday, June 10, 2011, petitioner asked that he be allowed to
represent himself. Hanlon had lied to him, so he expected him to lie to the
jury. (2 App. 276.) If he received the files that day or Saturday, he would be
prepared to proceed the following Tuesday. He was already prepared to argue
the motions that had been filed. (2 App. 277-278.) When petitioner appeared
in court the following Monday and asked for a continuance, the trial court
denied his request. (2 App. 297-300.)
Hanlon then moved to withdraw. (2 App. 301.) The court held an in
camera hearing with Hanlon, Rief, and petitioner. Hanlon said he had
received two threatening letters from petitioner. (2 App. 305-308.) Petitioner
said he had been angry because his lawyers were insisting on a heat-ofpassion defense. After they embraced his desired defense, relations improved.
12
That did not stop him from writing rambling, spur-of-the-moment letters that
he sometimes regretted. (2 App. 310-316.) The court denied Hanlon’s motion.
(2 App. 316-317.)
Back in open court, Hanlon announced doubts about petitioner’s
competency. (2 App. 319-321.) Doubting Hanlon’s credibility, the court
declined to suspend proceedings. (2 App. 320, 322, 326-327.)
In opening statement, Hanlon said Mitchell would testify that he was
at the homicide scene. He did not say Mitchell would testify about the two
other men. (2 App. 328-333.)
Hanlon asked for the manslaughter instructions at the instructions
conference. (2 App. 334-340.) The trial court instructed on two theories of
manslaughter as well as on second-degree murder. (2 App. 341-343.) Hanlon’s
closing argument is set out above.
At sentencing on August 16, 2011, the court held an in camera hearing
on a mutual request that Hanlon and Rief not represent petitioner at
sentencing or on a possible motion for new trial. Petitioner was upset because
Hanlon had argued in the alternative at trial for a heat-of-passion
manslaughter verdict against his express instructions. (2 App. 412.) This had
been sprung on him at the last minute, leaving him no time to find new
counsel. Petitioner thought Hanlon planned it that way. (2 App. 412-416.)
13
Although the issue at sentencing was concurrent vs. consecutive
sentences, Hanlon doubted that he could perform the way he believed
petitioner wanted. He believed that petitioner still wanted him to argue that
he did not commit the murder. Although guilt was settled given the verdict,
Hanlon was still unwilling to argue against petitioner’s wishes. (2 App. 417420.) “I made that decision once. I’m not going to do it again.” (2 App. 418.) If
forced to argue, he would simply submit the matter. (2 App. 418, 420.)
The court ordered Hanlon to explain why he argued for manslaughter.
Hanlon said that he thought it was the only possible way to save petitioner
from life in prison. He had told petitioner at some point that petitioner had
the right to testify however he wished, but the decision of what to argue was
his. (2 App. 418-419.)
“Mr. Mitchell clearly expressed his desire that I not do it. I told
him—I don’t remember when that conversation first came up,
whether it was before trial or during the trial, that this was an
attorney’s choice. The decision to testify as to what the truth
was was up to him, but what to argue was up to me. And he
argued with me about that. It’s clear what he was saying is
true, but I made that decision based on what I saw the evidence
to be and what was in his best interests.” (2 App. 419.)4
4 The trial court declined to relieve Hanlon. At sentencing, petitioner
reasserted his innocence. Hanlon said nothing. Petitioner was sentenced.
14
REASONS FOR GRANTING THE PETITION
I. A Criminal Defendant Has a Sixth Amendment Right of Client
Autonomy to Preclude Defense Counsel from Arguing for a
Conviction of a Lesser Offense.
A. Introduction
This question implicates the dissent’s questions in McCoy v. Louisiana,
138 S.Ct. 1500 (2018). McCoy held that a defendant has a Sixth Amendment
right of client autonomy that allows him to dictate the ultimate goals of his
defense. That right was violated in McCoy when defense counsel conceded the
defendant’s commission of a homicide knowing that he wanted a defense of
complete innocence. Id. at 1507-1509. The error was structural. Id. at 1511.
California holds that McCoy is not limited to capital cases. People v. Flores,
34 Cal. App. 5th 270, 282-283 (2019).
The McCoy dissent asked:
“What about conceding that a defendant is guilty, not of the
offense charged, but of a lesser included offense? That is what
English did in this case. He admitted that petitioner was guilty of
the noncapital offense of second-degree murder in an effort to
prevent a death sentence. App. 651. Is admitting guilt of a lesser
included offense over the defendant’s objection always
unconstitutional? Where the evidence strongly supports
conviction for first-degree murder, is it unconstitutional for
defense counsel to make the decision to admit guilt of any lesser
included form of homicide—even manslaughter? What about
simple assault?” Id. at 1516-1517 (Alito, J., dissenting) [footnote
omitted].
15
The dissent’s questions should be answered in the affirmative. Indeed,
this Court should go further. Whether or not defense counsel actually
conceded the commission of the actus reus in arguing for a conviction on a
lesser offense puts the cart before the horse. The defendant’s Sixth
Amendment right of client autonomy lets him preclude such argument in the
first place to avoid inevitably watering down a desired defense of complete
innocence. If the known goal of a defendant charged with murder—or any
crime—is a defense of absolute innocence, the sole way defense counsel can
honor this is to limit his argument to the case for complete acquittal.
Like McCoy, this conclusion flows from Faretta v. California, 422 U.S.
806 (1975), which recognized a defendant’s constitutional right to selfrepresentation. It also flows from Cooke v. State, 977 A.2d 880 (Del. 2009)
and State v. Carter, 270 Kan. 426 (2000), both of which McCoy cited and both
of which held that defense counsel’s imposing a guilt-based “defense” on a
client against his wishes violated his constitutional rights. The California
courts’ conclusion to the contrary conflicts with McCoy and the above state
supreme court cases. Review should be granted to settle this important
question. Supreme Court Rule 10(c).
This is an appropriate case in which to reach this and the following
question. It is undisputed that from the outset of the representation,
16
petitioner insisted on a defense of complete innocence and refused one based
on mental state. This issue arose in state habeas proceedings. Under
California’s test for retroactivity, McCoy applies retroactively to state habeas
cases. In re Smith (2020) 49 Cal. App. 5th 377, 391-392. In denying relief, the
Court of Appeal imposed no procedural defaults in the alternative.
B. The Merits
1. McCoy v. Louisiana.
The Sixth Amendment to the United States Constitution provides, “In
all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defense.” A defendant also has a Sixth
Amendment right to forgo the assistance of counsel and represent himself.
Faretta v. California, 422 U.S. 806, 807 (1975). This is because “[t]he right to
defend is personal.” Id. at 834. “The Sixth Amendment does not provide
merely that a defense shall be made for the accused; it grants to the accused
personally the right to make his defense.” Id. at 819.
A defendant who appears with counsel cedes most trial management
decisions to the attorney. McCoy v. Louisiana, supra, 138 S.Ct. at 1508.
“Some decisions, however, are reserved for the client—notably, whether to
17
plead guilty, waive the right to a jury trial, testify in one’s own behalf,[5] and
forego an appeal. See Jones v. Barnes, 463 U.S. 745, 751 (1983).” (Ibid.)
The question under review in McCoy was “whether it is
unconstitutional to allow defense counsel to concede guilt over the
defendant’s intransigent and unambiguous objection.” Id. at 1507. In McCoy,
the defendant was charged with capital murder for killing three family
members of his estranged wife. Id. at 1505-1506. McCoy was adamant about
his innocence. “Throughout the proceedings, he insistently maintained he
was out of State at the time of the killings and that corrupt police killed the
victims when a drug deal went wrong.” Id. at 1506.
Two weeks before trial, McCoy’s retained counsel, English, told him
that he intended to concede guilt. McCoy was furious and told him not to do
so. He demanded a defense of innocence. It was undisputed that defense
counsel was aware of McCoy’s wishes. Both McCoy and English sought to
sever the relationship. The trial court refused to relieve English, telling him
that he was the attorney and the choice of defense, if any, was his. Ibid.
During opening statement, English conceded that it was indisputable
that McCoy had caused the victims’ deaths. This prompted an outburst from
McCoy about being sold out for having “murdered his family.” Id. at 1506-
5 See Harris v. New York (1971) 401 U.S. 222, 225.
18
1507. McCoy ultimately testified in his own defense, “maintaining his
innocence and pressing an alibi difficult to fathom.” Id. at 1507. During
closing argument, English again conceded that McCoy was the killer. Id. at
1507. He argued against a verdict of first-degree murder on the theory that
McCoy lacked the intent required for that crime. Id. at 1512 (Alito, J.,
dissenting). McCoy was convicted of first-degree murder and ultimately
sentenced to death. Id. at 1507.
This Court did not apply its ineffective assistance jurisprudence
because the issue was “client autonomy” under the Sixth Amendment. Id. at
1510-1511. Citing Faretta, it emphasized that the right to make a defense
under the Sixth Amendment was “personal.” That is why the Sixth
Amendment speaks of the “assistance” of counsel. Id. at 1507-1508. While
most trial management decisions are ceded to defense counsel, the client
retains exclusive control over certain fundamental decisions. Id. at 1508.
These fundamental decisions included McCoy’s goal of maintaining
complete innocence.
“Autonomy to decide that the objective of the defense is to assert
innocence belongs in this latter category. Just as a defendant
may steadfastly refuse to plead guilty in the face of overwhelming
evidence against her, or reject the assistance of legal counsel
despite the defendant’s own inexperience and lack of professional
qualifications, so may she insist on maintaining her innocence at
the guilt phase of a capital trial. These are not strategic choices
19
about how best to achieve a client’s objectives; they are choices
about what the client’s objectives in fact are.” Id. at 1508.
These objectives may not necessarily be sound or realistic, but that risk is as
accepted in this context as it is when defendant represents himself under
Faretta. Ibid.
The defendant’s objectives also may not be strictly tethered to the goal
of avoiding a conviction.
“Counsel may reasonably assess a concession of guilt as best
suited to avoiding the death penalty, as English did in this case.
But the client may not share that objective. He may wish to
avoid, above all else, the opprobrium that comes with admitting
he killed family members. Or he may hold life in prison not worth
living and prefer to risk death for any hope, however small, of
exoneration. Ibid.
Such decisions must be honored. “When a client expressly asserts that the
objective of ‘his defence’ is to maintain innocence of the charged criminal acts,
his lawyer must abide by that objective and may not override it by conceding
guilt.” Id. at 1509 (emphasis in original).
2. Defense Counsel Violated Petitioner’s Right of Client
Autonomy When, Knowingly and Against Petitioner’s
Wishes, He Argued for a Manslaughter Conviction.
McCoy holds that a defendant has a Sixth Amendment right to insist
on a defense of complete innocence. The facts of McCoy involved an explicit
concession of homicide. However, nothing in McCoy’s discussion of client
autonomy holds or implies that the right to dictate the ultimate goals of the
20
representation is limited to precluding explicit concessions of guilt. If a
defendant wants to take an all-or-nothing approach to acquittal and prevent
defense counsel from arguing for a conviction of mitigated homicide or some
lesser offense, he has that right under McCoy.
That flows from Faretta v. California, 422 U.S. 806 (1975), In holding
that a defendant has a constitutional right to dispense with counsel and
represent himself, this Court stated throughout the opinion that the
Constitution does not force a lawyer on the accused.
“To force a lawyer on a defendant can only lead him to believe
that the law contrives against him. Moreover, it is not
inconceivable that in some rare instances, the defendant might in
fact present his case more effectively by conducting his own
defense. Personal liberties are not rooted in the law of averages.
The right to defend is personal. The defendant, and not his
lawyer or the State, will bear the personal consequences of a
conviction. It is the defendant, therefore, who must be free
personally to decide whether in his particular case counsel is to
his advantage. And although he may conduct his own defense
ultimately to his own detriment, his choice must be honored [.]
Id. at 834.
If petitioner had been granted his Faretta rights, he could have limited his
argument to complete innocence. He could have run the risk of conviction on
the charged offense rather than risk undermining his case for complete
acquittal by assuming in the alternative that the jury would not believe him.
His rights should be no different if he accepts the assistance of counsel. It
would be strange if, though the Constitution does not force a lawyer on a
21
defendant, a defendant’s lawyer could try to force a conviction on him, even
one less serious than what the prosecution originally charged.
This conclusion also flows from Cooke v. State, 977 A.2d 880 (Del. 2009)
and State v. Carter, 270 Kan. 426 (2000), both of which McCoy cited as
persuasive authority. McCoy v. Louisiana, supra, 138 S.Ct. at 1507, 15091511.
“[W]here, as here, the defendant adamantly objects to counsel's
proposed objective to concede guilt and pursue a verdict of guilty
but mentally ill, and counsel proceeds with that objective
anyway, the defendant is effectively deprived of his constitutional
right to decide personally whether to plead guilty to the
prosecution's case, to testify in his own defense, and to have a
trial by an impartial jury. The right to make these decisions is
nullified if counsel can override them against the defendant's
wishes. In this case, the trial court's failure to address the
breakdown in the attorney-client relationship allowed defense
counsel to proceed with a trial objective that Cooke expressly
opposed. This deprived Cooke of his Sixth Amendment right to
make fundamental decisions concerning his case.” Cooke v. State,
977 A.2d 803, 847 (Del. 2009) (emphasis in original, footnotes
omitted).
“Viewing [attorney] Zoller's conduct as part of a trial strategy or
tactic is to ignore the obvious. By such conduct defense counsel
was betraying the defendant by deliberately overriding his plea of
not guilty. He not only denied Carter the right to conduct his
defense, but . . . it was the equivalent to entering a plea of guilty.
To allow the defense counsel to argue to the jury that Carter is
guilty while Carter is verbally maintaining his innocence violates
his Sixth Amendment right to counsel and interferes with his due
process right to a fair trial. Zoller had no right to conduct a
defense premised on guilt over his client's objection. If Zoller
could not accept Carter's rejection of such a defense, then he
should have either proceeded with a defense acceptable to Carter
22
or sought permission to withdraw as defense counsel. Zoller did
neither. State v. Carter, 270 Kan. 426, 440-441 (2000).
Both courts also drew their conclusions from Faretta and other cases on
self-representation. Id. at 437-440; Cooke v. State, supra, 977 A.2d at
841, fns. 33 & 35; 842, fn. 41; 847, fn. 67; 851, fn. 95.
McCoy should be read to allow a defendant to preclude alternative
arguments for conviction of lesser offenses. Nothing in McCoy is to the
contrary. The Court of Appeal cited McCoy’s statement that defense counsel
“could not interfere with McCoy’s telling the jury ‘I was not the murderer,’
although counsel could, if consistent with providing effective assistance, focus
his own collaboration on urging that McCoy’s mental state weighed against
conviction.” McCoy v. Louisiana, supra, 138 S.Ct. at 1509. (1 App. 1.)
However, this language should not justify Hanlon’s disobedience of
petitioner’s wishes.
First, as noted above, McCoy held that what might be sound strategy is
irrelevant to the issue of client autonomy. Second, the reference to the
defendant’s telling the jury “I was not the murderer” cannot merely refer, as
Hanlon assumed, to the client taking the stand to tell his story. That right
may have informed McCoy, but it long predated it and has nothing to do with
the question presented there. Id. at 1513, 1516.
23
Rather, “I was not the murderer” must refer to defense counsel arguing
that to the jury on the client’s behalf. The language that follows about
arguing mental state can only be harmonized with the core holding of McCoy
if, unlike what happened in McCoy, such argument does not undermine the
defendant’s claim of innocence of the actus reus. It is hard to imagine how
that tightrope might successfully be walked in most cases. It certainly was
not in petitioner’s.
This is not a case where, consistent with McCoy, defense counsel could
argue that whoever committed the crime was guilty only of a lesser crime
because of a missing element, e.g., the absence of force or fear in a petty theft
charged as a robbery. Such an argument would not undermine the
defendant’s insistence that he was innocent of the actus reus. It would not
link him to a crime against his will and to his potential embarrassment.
Petitioner’s case is very different. There was no room for Hanlon to
argue petitioner’s innocence while also arguing that whoever committed this
homicide lacked the required intent or malice and only committed
manslaughter. The only person whose mental state we have circumstantial
evidence of was petitioner. The only person who could have committed
manslaughter “because of a sudden quarrel or in the heat of passion” and
because he “acted rashly and under the influence of intense emotion that
24
obscured his reasoning or judgment” was petitioner. (2 App. 342.) The only
person about whom Hanlon could have argued, “What happened . . . that led
to a man beating in the brains of a woman he loved?” was petitioner. (2 App.
401.) Under McCoy, petitioner was entitled to preclude this type of argument
to avoid diluting the strength of his case for complete acquittal.
II. To Violate McCoy, Defense Counsel Need not Say “The
Defendant is Guilty” or Similar Words. Implied or Tacit
Concessions Such as Occurred in Petitioner’s Case Suffice.
If a concession is required to violate McCoy, what must it look like?
There are many ways in law—and life—to assert something directly without
saying it as explicitly as McCoy’s counsel did. This case exemplifies that.
Because an attorney has many rhetorical arrows in his quiver, a McCoy
violation should not require an explicit concession. The test should be the
likely impact of the argument on a reasonable juror. Review should be
granted to settle this important question of law. Supreme Court Rule 10(c).
This is an appropriate case in which to reach this question. Hanlon
never said, “Ladies and gentlemen of the jury, I concede that Mr. Mitchell
killed the victim.” However, the likely impact of his equivocations on the jury
was “Forget everything I just said about innocence. Focus on manslaughter.”
Hanlon did not defend petitioner’s credibility. Rather, he said
petitioner’s testimony about third parties presented a coincidence that the
25
jury would have to grapple with. Beginning his argument about
manslaughter, he told the jury that petitioner would object to his making it,
remarks that told the jury he did not know about the argument and had not
authorized it. He said the record supported the conclusion that petitioner was
lying. (2 App. 398-400.)
Hanlon’s professed disavowal of not believing his client actually told
the jurors the exact opposite. It told them that they should not belabor
petitioner’s innocence defense but, rather, focus on manslaughter.6 Nothing
in McCoy suggests that defense counsel may pay lip service to the defendant’s
claims of absolute innocence and then negate them in front of the jury
because doing so seems like the sounder strategy.
Most damningly, Hanlon referred to himself as an officer of the court.
He did this not once, but twice.
“I want to talk to you about an issue that’s very difficult, not
because it’s difficult to talk about, but because my job as an
attorney is to be an advocate for my client. I’m also an officer of
the court. And I see my job in closing argument as arguing what I
believe the evidence suggests and have you think about it. . . .
I don’t—you know, I try never to do that, and that’s why this is
difficult, but it’s something, as an officer of the court and an
advocate for my client, I have to do, because there certainly is
evidence on which you could conclude, depending on how you
6 Hanlon’s argument involves two rhetorical devices. “Apophasis” is the
practice of bringing up a subject or asserting a point by claiming not to
mention it. “Paralipsis” is the device of emphasizing a point by claiming it
deserves little emphasis.
26
understand the inferences for circumstantial evidence, that Mr.
Mitchell is not being totally honest with you about what
happened.” (2 App. 398-400.)
Even if the jury misunderstood Hanlon’s ultimate point amidst his evasions,
invoking his duties as an officer of the court would have told the jury he knew
petitioner had lied and that the jury should also so conclude. If a prosecutor
had invoked his duties and ethics to bolster the credibility of a witness, any
defendant would complain about prosecutorial vouching. Hanlon also
improperly vouched—for his own client’s guilt.
To Hanlon’s point that conceding petitioner’s guilt of homicide was
something “I have to do” as an officer of the court, the response is, “No, you
don’t.” Although a defendant’s constitutional right to testify does not include
the right to testify falsely and his Sixth Amendment right to counsel does not
include having the knowing assistance of counsel in suborning his perjury,
Nix v. Whiteside, 475 U.S. 157, 173-176 (1986), nothing in the record shows
that petitioner told Hanlon his intended testimony was false.
McCoy distinguished the Louisiana Supreme Court’s reliance on
Whiteside on that basis. “But McCoy’s case does not resemble Nix, where the
defendant told his lawyer that he intended to commit perjury. There was no
such avowed perjury here.” McCoy v. Louisiana, supra, 138 S.Ct. at 1510.
Had Hanlon so known, his duty would have been not to put petitioner on the
27
stand or to withdraw. Ibid. Hanlon had no business putting him on the stand
and then telling the jury that he lied.
In denying relief, the Court of Appeal primarily cited sister state and
federal circuit cases that are either not on point or that contradict McCoy.
The case of United States v. Rosemond, 958 F.3d 111 (2d Cir. 2020) held that
McCoy was not violated when defense counsel conceded that the defendant
paid to have the victim shot but disputed the element of intent to kill. Id. at
119, 123 (1 App. 1-2.) However, Rosemond read McCoy as limited to cases
where counsel concedes every element of a charged crime. Id. at 122. This
contradicts McCoy where only the actus reus of homicide was conceded.
The cited case of Truelove v. State, 945 N.W. 2d 272 (N.D. 2020) is
similarly distinguishable. (1 App. 2.) It held that counsel’s strategy that the
defendant testify and admit striking the victim did not violate McCoy because
it was “not necessarily” a complete concession of the charge of aggravated
assault. Id. at 275-276. Again, this contradicts McCoy.
The Court cited Merck v. State, 298 So.3d 1120 (Fla. 2020) for the
proposition that arguing alternative defenses of identity and voluntary
intoxication does not violate McCoy. Merck is a barebones dismissal in which
the supposed alternative argument of identity is not mentioned. The Court
simply held that arguing voluntary intoxication is not a concession of guilt.
28
Id. at 1121. The case lacks sufficient discussion to be persuasive. However, if
the voluntary intoxication argument was logically bound up with a concession
over the defendant’s objection that the defendant had committed the actus
reus of the charged murder, it would violate McCoy.
The cited case of People v. Maynard, 176 A.D. 3d 512 (N.Y. App. Div.
2019) actually supports petitioner’s position. There, the two issues were who
robbed the victim and whether the victim was robbed in a dwelling to make
the case second-degree burglary, a more serious charge. Id. at 513. Maynard
held that counsel’s emphasis on the stronger argument of where the robbery
occurred did not violate McCoy. Id. at 513-514. This is the kind of case
alluded to above where defense counsel may argue that whoever committed
the crime was not guilty of the charged crime because of a missing element.
That is not the case here because the only person who could have been guilty
of voluntary manslaughter was petitioner.
The Court cited People v. Franks, 35 Cal. App. 5th 883 (2019) for a
general statement of McCoy. Id. at 891. (1 App. 1.) The facts of Franks, where
the defendant was convicted of voluntary manslaughter, do not support the
denial of relief. There, counsel admitted that the defendant had been with the
victim prior to her body being discovered. He urged the jury to consider a
verdict of involuntary manslaughter. Id. at 888. On appeal, the defendant
29
argued that this “implicit concession” that he had caused the victim’s death
violated McCoy. Id. at 889. Relief was denied solely because the defendant
had not made his wishes for a defense of absolute innocence known to
counsel. Id. at 891.
Franks did not hold that concession of the actus reus of a charged crime
does not violate McCoy. More importantly, it did not hold that an “implicit
concession,” i.e., something other than “Ladies and Gentlemen of the Jury,
the defendant is guilty of X,” but amounting to the same thing, can never
violate McCoy. This Court should decide that question in petitioner’s favor.
CONCLUSION
For the foregoing reasons, the petition for writ of certiorari should be
granted.
Dated: April 12, 2021
/s/Steven S. Lubliner
Steven S. Lubliner
P.O. Box 750639
Petaluma, CA 94975
Phone: (707) 789-0516
e-mail: ssubliner@comcast.net
Counsel for Petitioner
James R.W. Mitchell
30
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.