Opposition Brief — Calderon v. Moore

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ORIGINAL

No. 95-1612 Supreme Coort, U.S.

FILED

SUPREME COURT OF THE UNITED STATES MAY g 1996

October Term, 1995 CLERK

ARTHUR CALDERON, WARDEN,

Petitioner,

Vv.

CHARLES EDWARD MOORE, JR.,

Respondent

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT’S MOTION TO PROCEED

IN FORMA PAUPERIS

Morgan Chu

Counsel of Record

Brian Pass

Spencer E. Bendell

IRELL & MANELLA LLP

1800 Avenue of the Stars

Suite 900

Los Angeles, California 90067-4276

(310) 277-1010

MARIANNE D. BACHERS

900 North Point Street

Suite 220

San Francisco, California

Telephone: (415) 673-8000

Attorneys for Respondent

Charles Edward Moore

94109

MOTION TO PROCEED IN FORMA PAUPERIS

The respondent, Charles Edward Moore, asks leave to

proceed in forma pauperis and to file the attached brief in

opposition in conformity with Supreme Court Rule 33.2.

Respondent has not sought leave to proceed in forma pauperis

in either the United States District Court or the United

States Court of Appeals. No affidavit is attached, inasmuch

as the United States District Court appointed counsel for the

respondent under the Criminal Justice Act of 1964.

Dated: May 8, 1996 Respectful submitted,

Morgan Chu

Counsel of Record

Brian Pass

Spencer E. Bendell

IRELL & MANELLA LLP

MARIANNE D. BACHERS

Attorneys for Respondent

ae a eee

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Supreme Coort, U.S.

ORIGINAL ries

MAY 8 1996

No. 95-1612

CLERK

seme |

SUPREME COURT OF THE UNITED STATES

October Term, 1995

ARTHUR CALDERON, WARDEN,

Petitioner,

CHARLES EDWARD MOORE, JR.,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Morgan Chu

Counsel of Record

Brian Pass

Spencer E. Bendell

IRELL & MANELLA LLP

1800 Avenue of the Stars

Suite 900

Los Angeles, California 90067-4276

(310) 277-1010

MARIANNE D. BACHERS

900 North Point Street

Suite 220

San Francisco, California 94109

Telephone: (415) 673-8000

Attorneys for Respondent

Charles Edward Moore

CAPITAL CASE

QUESTION PRESENTED

Where a habeas corpus petitioner succeeds in obtaining

relief from a district court in the form of an order requiring

release or retrial within sixty days, and where, as a result

of the state’s inability to show a substantial likelihood of

success on the merits on appeal, the state’s requests for a

stay of the order are denied by three courts, including this

Court, may the Court of Appeals exercise its discretion to

dismiss the appeal on prudential mootness grounds?

OPINIONS BELOW

PROVI S IONS I NVOLVED . * * * * * . * * * * > . . . *

STATEMENT OF THE CAS E * * * * * * * . * . . * . . .

REASONS WHY

CONCLUSION

Procedural Background ....++e«+s

Factual Background ....++s«+s.

THE PETITION SHOULD BE DENIED ....

Because the Ninth Circuit’s

Unpublished Dismissal of This Appeal

Resulted from Facts Unique to This

Case, This Case Is Not Sufficiently

Compelling to Merit a Grant of

a ee ee re oe ee ee ee ee

The circumstances here are merely

episodic -- so few habeas

petitioners obtain unstayed orders

compelling retrial that review in

this case would affect only a few

BSGSCENEB. coceeeeeneneves

The State was not faced with any

purported “dilemma” -- the State

had options that allowed it both

to ensure decision on the merits

of its appeal and avoid any danger

to the community ...+.+4++ee6-s

There Is No Conflict Among the

Circuits Regarding the Question

Presented in This Case .....+ +e -s

The Ninth Circuit’s Decision Does Not

Necessarily Implicate Any

Constitutional Provision -- Its

Decision Was a Correct Exercise of

Its Discretion to Dismiss for

peeeemeeen MORNE « se ec ec eo ee eee

Nu N Ne

TABLE OF AUTHORITIES

Cases Pages Pages

Burnett v. Kindt, 780 F.2d 952 (11th Cir. Younger v. Harris, 401 U.S. 37 (1971) .....+++. 18

1986) * . * *. o * * * * >. . . * * * * * * * *-. > ll, 12

Court Rules

Chamber of Commerce v. United States

Dept. of Energy, 627 F.2d 289 Ninth Circuit Rule 36-3 . . . . . . . . . a . . . . 10

(D.C. cir. 1980) * . . . * *. . >. . . * . . * * * 16, 17

Supreme Court Rule 10 ...++++2+e2+2+2 2© © © © © © Vy 12

Faretta v. California, 422 U.S. 806 (1975) ..... 2, §

Other Authorities

Garrison v. Hudson 468 U.S. 1301

(Guseer, Caseust Justies 1906) . «+ «see 2 6 Be 39 | 13A Charles A. Wright et. al., Federal

| Practice and Procedure § 3533.1

Gulf Oil Co. v. Bernard, 452 U.S. 89 et 222 (236 @6@. 31904) « «sce ete ceveveeenesnsese

(1981) * * * * * * . . al . * >. * . * * > * * . * 15

Hilton v. Braunskill, 481 U.S. 770 (1987) ...... 8

Jean v. Nelson, 472 U.S. 846 (1985) ....+++s«-e«-s 15

Johnson v. Smith, 764 F.2d 114 (2d Cir.

1985) * bel * . * * . * * * * > . * . * bl . *. hal . 7, 13, 14

Moore v. Calderon, 56 F.3d 39 (9th Cir.

1995) . . . * . * . * . * * hal . . . * . * * . . 1, 8

Penthouse Int’l., Ltd. v. Meese, 939 F.2d 1011

(D.C. Cir. 1991), cert. denied, 503 U.S.

950 (1992) . * . . * * . . . . . * . . . . * . . 16

People v. Moore, 47 Cal. 3d 63, 762 P.2d

1218, 252 Cal. Rptr. 494 (1988),

cert. denied, 490 U.S. 1095 (1989) ....... 4

Pierce v. Winograd, 757 F.2d 714 (5th Cir.

1985) . . . >. . 7. * . * * . > . * * *. . . . *. * 11

Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70

(1955) * . * *. * . . . *. * * * . * . . * * . * * 7

S-1 & S-2 v. Spangler, 832 F.2d 294 (4th Cir. 1987) . 16, 17

Spector Motor Co. v. McLaughlin, 323 U.S.

101 (1944) . . * . . * . . . . . . . >. . . . . . 15

United States Parole Comm’n v. Geraghty,

445 U.S. 388 (J. Powell dissenting) ...... 16

United States v. W.T. Grant Co., 345 U.S.

629 (1953) . . * * * * . . . . . * *. . . > . . . 16, 17

~ii- | ~iii-

OPINIONS BELOW

The order of the United States Court of Appeals for the

Ninth Circuit dismissing the State’s appeal is unpublished but

is appended to the Petition for Writ of Certiorari as Appendix

A.' The district court’s Memorandum Decision and Order on

Petitioner’s Motion for Partial Summary Judgment on Claims A,

B and C (Mem. Op.) which required release or retrial within

sixty days is included in Respondent’s Appendices as

Respondent’s Appendix A.

The order of the district court denying a stay pending

appeal is appended as Respondent’s Appendix B. The Ninth

Circuit’s denial of a stay is reported as Moore v. Calderon,

56 F.3d 39 (9th Cir. 1995), and is appended as Respondent’s

Appendix C. The denial of a stay pending appeal by Justice

O’Connor sitting as Circuit Justice is appended as

Respondent’s Appendix D.

' References to the Appendices contained in the Petition

are identified herein as Appendix A, B, etc. References to

the Respondents’ Appendices contained in this Brief in

Opposition are identified herein as Respondent’s Appendix A,

Respondent’s Appendix B, etc.

-l-

PROVISIONS INVOLVED

None. Article III, Section 2 of the United States

Constitution need not be reached in this case. Rather, the

Ninth Circuit’s decision is sustainable on non-constitutional

grounds which should be considered before any constitutional

questions.

STATEMENT OF THE CASE

A. Procedural Background.

On March 31, 1995, the district court granted Charles

Edward Moore summary judgment on Claims A and C of his habeas

corpus petition, both of which addressed Moore’s invocation of

his Sixth Amendment self-representation right, while denying

Moore’s motion for summary judgment on Claim B. See

Respondent’s Appendix A (Mem. Op.).’

Under Claim A, the district court held that the state

trial court unconstitutionally denied Moore his Sixth

Amendment right to represent himself, a right recognized by

this Court in Faretta v. California, 422 U.S. 806 (1975), by

denying his self-representation motion without adequately

inquiring into the purpose for which the motion was brought.

Under Claim C, the district court held that the trial court

also improperly denied Moore his Faretta right when he renewed

his motion to represent himself prior to closing argument.

The district court issued a conditional order requiring that

? Moore filed his habeas corpus petition in the United

States District Court for the Central District of California

on November 1, 1991, seeking relief from his 1984 conviction

and death sentence which had become final in March of 1990.

Moore be released if California failed to grant him a new

trial within sixty days.

Almost four weeks later, on April 27, 1995, the State

filed a Notice of Appeal and also moved in the district court

for a stay pending appeal. The district court denied the

motion on May 4, 1995. Twelve days later, on May 16, the

State filed an “emergency motion" for a stay pending appeal

with the Ninth Circuit. On May 26, 1995, the Ninth Circuit

denied the motion, finding that, based on controlling Ninth

Circuit precedent, the State could not demonstrate that it had

a substantial case on the merits. See Respondent’s Appendix C

(56 F.3d 39). The State then filed its Application For Stay

Pending Disposition of Appeal in Ninth Circuit with this Court

‘en May 27, 1995. The State’s third request for a stay of the

district court’s order granting habeas relief was likewise

rejected by Justice O’Connor sitting as Circuit Justice.

Respondent’s Appendix D.

On July 11, 1995 the Ninth Circuit issued an order

requiring the State to inform the court whether Moore had been

granted a new trial. Respondent’s Appendix E. The State

responded, indicating that Moore had been "granted ... a new

trial on May 30, 1995." Respondent’s Appendix F at F1-F2.’

* The “grant” of a retrial to Moore On May 30, 1995

apparently entailed “calendar[{ing}) the matter for a trial

setting conference on June 13, 1995, and obtain{ing) a removal

order for Moore for that date." Respondent’s Appendix H at H2

(Reply to Moore’s Opposition to Calderon’s Application for

—..$tay Pending Disposition of Appeal in Ninth Circuit, filed

June 6, 1995, at 1). Respondent does not concede that this

action was sufficient to constitute compliance with the

(continued...)

-3-

. ee I PEI S A Cee pees pe

The State also informed the court of the status of pre-trial

proceedings in the retrial. Id. The State updated the Ninth

Circuit as to the status of the pre-trial proceedings in the

retrial on September 21, 1995. Respondent’s Appendix G. The

Ninth Circuit dismissed the State’s appeal as moot because

“(tjhe State of California has granted petitioner Charles

Edward Moore a new trial." Appendices A and B. After denial

of rehearing and rehearing en banc the State filed the present

petition.

B. Factual Background.

Moore was tried for capital murder solely on the basis of

the testimony of Terry Avery, an admitted participant in the

two killings for which Moore was tried and received the death

penalty, but who nevertheless was granted full immunity from

prosecution in exchange for her testimony against Moore and

another defendant, Lee Edward Harris.‘ Moore’s court-

appointed attorney did not vigorously pursue Moore’s defense.

The undisputed facts before the district court demonstrate

that, as soon as Moore realized that his attorney was not

prepared for trial and had not even bothered to interview a

key witness with potentially exculpatory testimony, Moore

4(...continued)

district court’s order requiring release or retrial within

sixty days.

* Harris received a life sentence upon his retrial.

People v. Moore, 47 Cal. 3d 63, 93, 762 P.2d 1218, 1236, 252

Cal. Rptr. 494, 512 (1988), cert. denied, 490 U.S. 1095

(1989).

-4-

resolved to proceed pro se, to seek another court-appointed

lawyer, or to be granted co-counsel status.

At the two pre-trial hearings following this decision,

Moore was left in his holding cell and was unable to present

his request to the court. On March 10, 1984, after Moore was

left in his cell for the second consecutive hearing, he wrote

to the court directly and asked unequivocally to be allowed to

represent himself, to participate as co-counsel, or to have

another attorney appointed.°

On March 16, 1984, at the next pre-trial hearing at which

Moore was present, Moore’s requests for co-counsel status and

to have another attorney appointed were denied. Recognizing

that Moore wanted to proceed pro se, the master calendar court

then gave Moore relevant forms to fill out and continued the

hearing until March 19, 1984. On that date, the court denied

Moore’s self-representation motion without inquiring of Moore

about his Faretta demand. The court also ruled against Moore

without making any finding -- express or implied -- that Moore

had any dilatory intent or harbored any improper purpose in

choosing to exercise his self-representation right. See

Appendix A at A45-A50 (Mem. Op. at 45-50). Following the

master calendar court’s ruling, the case was transferred to

the trial court, where, that afternoon, trial was continued in

* Moore’s March 10 letter to the court stated, "I ask

that the court appoint me co-counsel with another lawyer or

allow me to go pro. per., which is my constitutional right of

‘self-representation’ under the Sixth Amendment. Faretta v.

Calif., 422 U.S." See Respondent’s Appendix A n.31 (Mem. Op.

n.31).

order to permit the court to consider two pre-trial motions

and to permit the prosecution to secure the presence of out-

of-state witnesses. After two additional continuances, jury

selection did not begin until one week later, March 26, and

the jury was not empaneled until March 29.

As the district court correctly found, directly

applicable Ninth Circuit precedent establishes that the denial

of Moore’s right to represent himself was constitutional error

as a matter of law; indeed, this precedent was established by

1982, well before Moore was even brought to trial. In

addition, the district court found that, under not only the

Ninth Circuit test but also under any of the similar

timeliness tests that have emerged around the country, the

denial of Moore’s self-representation motion was improper.

Moore’s concern regarding his lawyer proved to be well

founded. At trial, Moore’s attorney, Ronald Slick, was

unprepared to cross-examine Terry Avery or Mr. Jones, the

witness whom he had failed to interview. Given Slick’s

failures, prior to closing argument Moore renewed his request

to represent himself during closing argument. As the district

court found, this motion also was improperly denied.

1. The circumstances here are merely episodic ~- so few

habeas petitioners obtain unstayed orders compelling

retrial that review in this case would affect only a

few litigants.

A petition for certiorari should be granted only “for

compelling reasons." Supreme Court Rule 10. In order to

merit review by this Court, the problem must be “beyond the

academic or the episodic." Rice v. Sioux City Memorial Park

Cemetery, Inc., 349 U.S. 70, 74 (1955) (emphasis added).

While Petitioner claims that this case presents an issue

of “critical national importance," Petition at 5, Petitioner’s

own argument refutes that contention. Petitioner refers to

“only one case remotely comparable" to the present case,

Johnson v. Smith, 764 F.2d 114 (2d Cir. 1985), a case that is

contrary to Petitioner’s position, which Petitioner then goes

to great, though unsuccessful, lengths to distinguish.

Petition at 9-10. While Petitioner’s claim that review in

this case will affect “every case" involving an order granting

habeas corpus relief in the form of retrial for which a stay

pending appeal is denied is correct, Petitioner’s own research

demonstrates that this class of cases is an exceedingly narrow

one.°®

* Petitioner cites only one other case either prior to

or in the eleven years subsequent to the decision in Johnson,

in which a court was faced with a similar question of mootness

engendered by retrial. In that case, Garrison v. Hudson 468

(continued...)

-7J-

The reasons why such circumstances are so rare is

apparent upon examination of the unique history of this case:

Upon the issuance by the district court of its March 31, 1995,

Memorandum Decision and Order on Petitioner’s Motion for

Partial Summary Judgment on Claims A, B and C, (the “District

Court’s Order") requiring release or retrial within sixty

days, the State applied for a stay pending determination of

the appeal by the Ninth Circuit. The district court denied

the application because there was not a substantial likelihood

that the State would prevail on the merits in the Ninth

Circuit. The State then appealed to the Ninth Circuit which

denied the motion for a stay stating that the State had not

met its burden of “"‘demonstrat[{ing] a substantial case on the

merits’" Respondent’s Appendix C at C2 (Moore v. Calderon, 56

F.3d 39, 40 (9th Cir. 1995) (quoting Hilton v. Braunskill, 481

U.S. 770, 778 (1987))). Finally, a stay pending appeal was

likewise denied by Justice O’Connor sitting as Circuit

Justice. Respondent’s Appendix D.

It was only after two courts found that the State had

failed to show a substantial likelihood of success on the

merits, and while the State’s third unsuccessful stay request

was pending before this Court, that the State finally chose

*(...continued)

U.S. 1301 (Burger, Circuit Justice 1984), Chief Justice

Burger, recognized the potential mooting effect of retrial on

a state’s habeas appeal, and, on that basis, granted a stay of

the habeas order.

among beginning retrial proceedings,’ "releasing" Moore,* or

refusing to comply with the District Court’s Order.* Had any

one of the three courts addressed been convinced that the

State’s case on appeal warranted a stay of the remedy to which

the district court found Moore was undoubtedly entitled, the

State would not have been obliged to begin retrial proceedings

until after the appeal of this case had been finally

determined on the merits. The Ninth Circuit only dismissed

the appeal after the State chose, in light of the three

denials of stays, to subject itself and Moore to relitigation

in state court of the question of Moore’s guilt or innocence

concurrently with appellate litigation of this habeas corpus

case. It was only this extraordinary chain of events which

presented the Ninth Circuit with the decision of whether to

review the District Court’s Order on the slight chance that

the State would prevail, and prevail before the second trial

occurred. The Ninth Circuit’s decision is not relevant to the

vast majority of habeas cases in which relief is denied by the

’ The State took the action it contends constitutes

compliance with the District Court’s Order on May 30, 1995,

the sixtieth day after the issuance of the District Court’s

Order. This last-minute “action was taken subject to the

issuance [by this Court] of a stay pending the final

disposition of the Ninth Circuit appeal." Respondent’s

Appendix H at H2 (Reply to Moore’s Opposition to Calderon’s

Application for Stay Pending Disposition of Appeal in Ninth

Circuit, filed June 6, 1995 at 1).

* "Release" in this case would not, as Petitioner

implies, release a dangerous person into the community. See

infra at 10-11.

* The State’s options in this regard are discussed more

fully infra at 11-12.

-9-

district court or in which relief is granted, but stayed

pending appeal (thereby avoiding retrial concurrent with

appeal) ."

2. The State was not faced with any purported

“dilemma” -- the State had options that allowed it

both to ensure decision on the merits of its appeal

and avoid any danger to the community.

In addition to affecting very few other litigants, this

case does not present the purported "dilemma" to the State of

California which Petitioner asserts it does. Petitioner

describes the State as being put in the position of having to

choose between “releas{ing] a dangerous capital defendant" and

“forfeit{ing) its right to appeal." Petition at 4. No such

dilemma existed. Moore is currently subject to a thirty year

sentence in the State of Colorado. Upon completion of this

Colorado sentence, Moore must serve consecutively a life

sentence and two thirty-years-to-life sentences in Kansas."

Each of these states has an obviously strong interest in

acquiring custody of Moore in the event that his release from

California’s custody were to become imminent. Thus, it is

inaccurate and misleading for Petitioner to imply that the

State would have been forced to release a "dangerous capital

}

"© Not only is the issue raised here relevant to only a

very few other cases, but the decision below has no effect on

other litigants. Because it is unpublished, the decision is

not binding precedent, and may not be cited, within the Ninth

Circuit. See Ninth Circuit Rule 36-3.

'' The reason that no detainer has been lodged against

Moore is that he was brought to California from Colorado on a

detainer and is thus still technicaily serving his sentence in

Colorado during his incarceration on this case.

defendant" into the community in order to fully maintain its

appellate options.”

Petitioner’s claimed dilemma also ignores a third, viable

option always open to the State -- refusal to comply with the

order. Refusal to comply with a court’s order granting habeas

relief is an acceptable means by which to maintain the status

quo and preserve all issues for appellate review. Burnett v.

Kindt, 780 F.2d 952 (lith Cir. 1986); see also Pierce v.

Winograd, 757 F.2d 714, 716 (5th Cir. 1985) ("A good faith

test of the court’s order through contempt would have implied

no disrespect toward the court.")

In Burnett, the district court ordered the warden in

whose custody Burnett was held to produce Burnett for a parole

hearing. The warden did not seek a stay of the Court’s order

but complied while simultaneously pursuing an appeal. Burnett

was paroled and released as a result of the hearing. The

Eleventh Circuit dismissed the case as moot because a

favorable ruling “would do nothing more than answer a

hypothetical question" in light of the habeas petitioner’s

release. Burnett 780 F.2d at 954. The Burnett court

explained that the warden could have maintained a live

controversy in one of two ways: He could have obtained a

stay, or “refused to comply with the district court’s

2 Though Judge O’Scannlain, in his dissent to the Ninth

Circuit’s denial of a stay, also expressed concern over the

danger posed by Moore’s release, Respondent’s Appendix C at C3

(59 F.3d at 41), this was only because the State failed to

inform the court of the convictions outstanding in other

jurisdictions.

[——- .

injunctive order, undergone a contempt adjudication, and

challenged the validity of the injunctive order in an appeal

from the contempt adjudication." Id. at 955.

In the case at bar, as in Burnett, the State could have

assured itself of appellate consideration of all issues via a

good faith refusal to comply with the District Court’s Order.

Moreover, Petitioner had the additional option not open to the

warden in Burnett of “releasing” the habeas petitioner to

serve lifelong terms of incarceration in other jurisdictions

while the appeal went forward. Thus, on the facts of this

case, there were two alternatives open to the State which

would have accomplished both of the State’s goals --

protecting the public from any possible danger and protecting

the State’s ability to continue litigating the

constitutionality of Moore’s conviction. The dilemma posed by

Petitioner does not exist.

B. There Is No Conflict Among the Circuits Regarding the

Question Presented in This Case.

The existence of a conflict between circuits, between

state courts of last resort or between a circuit and state

court of last resort is an important factor in determining

whether a case is worthy of review by this Court. See Supreme

Court Rule 10. In this case no such conflict exists.”

“ Petitioner attempts to divert this Court’s attention

from the fact that no conflict exists over the only issue

presented to this court for review -- mootness -- by

describing a purported conflict between the Ninth Circuit and

the Supreme Court of California. Petition at 9n.5. This is

the reddest of herrings: the purported conflict described

involves the issue of the timeliness of a motion for self-

(continued...)

-12-

Petitioner cites only two cases involving the mootness of

a state’s habeas appeal in light of the subsequent retrial of

the habeas petitioner. Both of those cases, Garrison v.

Hudson 468 U.S. 1301 (Burger, Circuit Justice 1984) and

Johnson v. Smith, 764 F.2d 114 (2d Cir. 1985), are in accord

with the decision below.

In Garrison, the Fourth Circuit reversed the decision of

the district court denying relief and directed the district

court to issue a writ of habeas corpus requiring release or

retrial. The warden and the state of North Carolina filed a

petition for certiorari and an application for a stay of the

scheduled retrial. Chief Justice Burger, sitting as Circuit

Justice, granted the stay of the retrial holding that inasmuch

es the certiorari petition filed in July would not normally be

considered until October, “(rjetrial of respondent .. . prior

to the ‘first Monday in October’ would effectively deprive

this Court of jurisdiction to consider the petition."

Garrison, 468 U.S. at 1302. Chief Justice Burger recognized

that retrial would moot the appeal in the habeas case and

would thus “irreparabl{y) harm" the state. Id.

Likewise, in Johnson, the district court granted the

habeas petitioner relief in the form of an order requiring the

State of New York to release or retry the petitioner within

seventy-five days. New York appealed and the petitioner

cross-appealed on a claim of error which the district court

'(...continued)

representation, not the question of mootness presented for

this Court’s review. See Petition at 2.

-13-

had rejected. New York sought a stay from the district court

and from the Second Circuit but was refused each time. New

York then chose to comply with the order, and retried the

defendant who was again convicted. The Second Circuit held

that “once retrial occurred, the appeal became moot, as did

the cross-appeal since they both raised hypothetical issues,

the earlier trial no longer being the cause of Johnson’s

incarceration." Johnson, 764 F.2d at 116. Petitioner cites

no contrary authority. Instead, Petitioner relies on its bald

assertion that in dismissing the state’s appeal as moot, the

Johnson court “stumbled.” Petition at 11. Petitioner’s

unsupported contention of error notwithstanding, the appeal in

Johnson was correctly dismissed as moot because the court

could not return the parties to the status quo ante given that

the order had been completely complied with, the habeas

petitioner had been subjected to another trial, and that trial

had become the source of his confinement.

Although the issue of the mooting effect of compliance

with an unstayed habeas order only rarely faces courts, the

courts which have faced the issue have uniformly recognized

that retrial will moot an appeal from the grant of habeas

relief which led to that retrial. Because Petitioner’s

argument is contrary to this uniform authority, the Petition

should be denied.

Petitioner seeks review of the Ninth Circuit’s order

dismissing the appeal as moot claiming that the Ninth Circuit

incorrectly held the case moot under Article III, Section 2 of

the Constitution. While the Ninth Circuit did dismiss the

appeal as moot, the two-sentence order does not make clear the

legal basis of that mootness. It is well settled that

“(pjrior to reaching any constitutional questions, federal

courts must consider nonconstitutional grounds for decision."

Jean v. Nelson, 472 U.S. 846, 854 (1985) (quoting Gulf Oil Co.

v. Bernard, 452 U.S. 89, 99 (1981)). Moreover, in considering

the petition for review of the Ninth Circuit’s decision, this

Court should follow its own maxim: "[I]}f there is one doctrine

more deeply rooted than any other in the process of

constitutional adjudication, it is that we ought not to pass

on questions of constitutionality . . . unless such

adjudication is unavoidable." Id. at 854 (quoting Spector

Motor Co. v. McLaughlin, 323 U.S. 101, 105 (1944)).

Petitioner asserts that the basis of the decision was the

case or controversy requirement of Article III of the

Constitution, but it actually appears that the Ninth Circuit

exercised self-restraint on prudential rather than

constitutional grounds. Therefore, because the dismissal

should be sustained as a proper exercise of the Ninth

Circuit’s prudential discretion, this Court need not and

should not decide the constitutional question of mootness

-15-

ee OE

under Article III. Moreover, in light of the absence of a

constitutional question, this case certainly does not merit

review.

In addition to the “case or controversy" requirement of

Article III, the doctrine of mootness includes a distinct

branch “relating to the court’s discretion in matters of

remedy and judicial administration." Chamber of Commerce v.

United States Dept. of Energy, 627 F.2d 289, 291 (D.C. Cir.

1980); See also United States Parole Comm’n v. Geraghty, 445

U.S. 388, 420 n.15 (J. Powell dissenting) ("This Court long

has recognized a difference between the prudential and

constitutional aspects of the standing and mootness

doctrines."); S-1 & S-2 v. Spangler, 832 F.2d 294, 297 (4th

Cir. 1987) (“The discretionary power to withhold injunctive

and declaratory relief for prudential reasons, even in a case

not constitutionally moot is well established."); 13A

Charles A. Wright et. al., Federal Practice and Procedure

§ 3533.1 at 222 (2d ed. 1984) (“Beyond the Article III core,

mootness decisions frequently reflect avowedly flexible

doctrines of remedy and judicial administration.").

This second branch of mootness doctrine, sometimes termed

“prudential mootness," e.g. Penthouse Int’l., Ltd. v. Meese,

939 F.2d 1011, 1019 (D.C. Cir. 1991), cert. denied, 503 U.S.

950 (1992), is grounded in this Court’s decision, United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953). InW.T.

Grant, this Court held that even in a case which is not

technically moot (in an Article III sense), a court may, in

its discretion, refrain from granting relief. See Chamber of left free to perform their separate functions in their

separate ways.

Commerce, 627 F.2d at 291-92 (deseribing the development of

Younger v. Harris, 401 U.S. 37, 44 (1971). The Younger court

the prudential mootness doctrine); S-1 & S-2 v. Spangler, 832

went on to reverse the district court’s grant of an injunction

F.2d at 297 (relying on W.T. Grant to withhold relief "for

against a state criminal proceeding in light of the lack of a

prudential reasons").

“showing of bad faith, harassment, or any other unusual

The plaintiff in Chamber of Commerce sought an injunction

circumstance that would call for equitable relief." 401 U.S.

and declaratory relief against the Department of Energy’s

at 54.

provision of funds to a consumer group so that the group could

While Younger is not directly controlling inasmuch as the

intervene in one of the Department’s regulatory proceedings.

retrial was not pending at the time of the institution of this

The plaintiff was denied a temporary restraining order and the

habeas proceeding, the concerns raised are analogous. The

Department of Energy’s hearing proceeded with the consumer

State seeks to terminate retrial proceedings currently

group’s funded intervention. The district court dismissed the

underway in state court. As evidenced by Younger, federal

case as moot and the District of Columbia Circuit affirmed,

courts should be reluctant to engage in the practice of

but did so on prudential rather than constitutional grounds.

interfering with ongoing state court proceedings. The Ninth

Chamber of Commerce, 627 F.2d at 292. The court explained

Circuit’s dismissal of the appeal in this case implicitly

that a court’s discretion not to exercise its power to grant

recognized the damage that would be done to principles of

relief is guided by principles of "prudence" and of “comity

comity by ordering the State to retry Moore only to withdraw

for coordinate branches of government." Id. at 291.

the case from the state court’s consideration after

Principles of comity apply not only to other branches of

proceedings were underway. Thus, the Ninth Circuit properly

the federal government but also to state courts. This Court

exercised its discretion to refuse to interfere with the state

has relied on these principles in determining that federal

court proceedings based on prudential concerns.

courts should not interfere with pending state criminal

proceedings:

This underlying reason for restraining courts of equity

from interfering with criminal prosecutions is reinforced

by an even more vital consideration, the notion of

"comity," that is a proper respect for state functions, a

recognition of the fact that the entire country is made

up of a Union of separate state governments, and a

continuance of the belief that the National Government

will fare best if the States and their institutions are

-17- -18-

certiorari

Dated:

For the foregoing reasons, the petition for a writ of

should be denied.

May 8,

1996

“17, ( submitted,

Cee u

-19-

Counsel 6f Record

Brian Pass

Spencer E. Bendell

IRELL & MANELLA LLP

MARIANNE D. BACHERS

Attorneys for Respondent

APPENDIX A 6...

) WAR

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

CHARLES EDWARD MOORE, JR., CASE NO. CV 91-5976 KN

Petitioner, DEATH PENALTY

MEMORANDUM DECISION AND ORDER

ON PETITIONER’S MOTION FOR

PARTIAL SUMMARY JUDGMENT ON

CLAIMS A, B, AND C

Vv.

ARTHUR CALDERON, Warden,

Respondent.

ee ee ee ee ee ee ee ee ee

INTRODUCTION

Having reviewed and considered the supporting and opposing

papers, the relevant portions of the state record, and the other

papers, pleadings, and records on file herein, for the reasons :

explained below, the Court GRANTS the petition.

RELEVANT FACTS AND PROCEDURAL POSTURE

The facts relevant to the underlying claims have been culled

from the state court record and are addressed in the body of this

memorandum decision. While the Attorney General contests summary

juagment in favor of Moore, he does not suggest that any factual

issues are in dispute,’ confining his argument to questions of

law. Thus, although the parties disagree as to some of the

inferences to be drawn, they do not dispute the underlying facts.

Throughout the pleading stage, Moore repeatedly asserted

that his petition included claims that could be resolved on

summary judgment based on the current record and without any need

for discovery. Respondent concedes that summary judgment is an

appropriate method for disposing of these claims. Blackledge v.

Allison, 431 U.S. 63, 80 (1977).? His opposition is based solely

on the contention that the claims, as pleaded, are insufficient

as a matter of law and/or refuted by the state court record. He

has disclaimed any intent to supplement the state court record.

While now moving for summary judgment, Moore has never

disclaimed an intent to seek discovery and/or an evidentiary

hearing to reinforce his factual contentions if this Court were

to find that the state court record does not establish his claims

as a matter of law. Moore has not been required to present all

his evidence at this time; it would be inappropriate for this

Court to pretermit briefing on the factual necessity of an

evidentiary hearing. Contrary to Respondent’s suggestion, the

Court cannot summarily adjudicate factual issues adversely to

Moore in this situation. Starsky v. Williams, 512 F.2d 109, 112

(9th Cir. 1975); Hotel del Coronado Corp. v. Foodservice Equip.

' There is, for example, no statement of genuine issues as

required by Local Rule 7.14.2.

+ The Attorney General has filed a cross-motion for summary

judgment. Since he set no hearing date or briefing schedule, the

cross-motion has not required any opposition, Local Rule 7.4, and

remains unbriefed.

> «¢. &. @

Distrib. Ass’n, 783 F.2d 1323, 1325 n.1 (9th Cir. 1986).’

As to the claims that, as presented, raise pure questions of

law, however, Moore should have been well aware that the Court

has authority to, sua sponte, summarily adjudicate issues

adversely to him. Coo] Fue], Inc. v. Conett, 685 F.2d 309, 311-

12 (9th Cir. 1982); Portsmouth Square, Inc. v. Shareholders

Protective Comm., 770 F.2d 866, 869-70 (9th Cir. 1985).

ANALYSIS

I. Moore’s Absence from the March 5 and March 9 Hearings Did

Not Transgress Upon his Fifth or Sixth Amendment Rights

A. Retroactivity Concerns

More than a half-century ago, the United States Supreme

Court affirmed that the due process clause protects a criminal

defendant’s right "to be present in his own person whenever his

presence has a relation, reasonably substantial, to the fullness

of his opportunity to defend against the charge." Snyder v.

Massachusetts, 291 U.S. 97, 105-06 (1934).

Invocation of this long-standing rule does not raise habeas

The “rule of constitutional criminal

procedure” involved is not “new.” Cf. Teague v. Lane, 489 U.S.

288 (1989) (plurality). Moore seeks only to have an old rule

retroactivity concerns.

applied to a setting which has never before been directly

confronted in a published decision -- a State’s exclusion of a

criminal defendant from a calendar call where defense counsel

» The Attorney General alternatively suggests that the claims

should be summarily dismissed. Not only has the time and stage

for summary dismissal ended, Rule 4, Rules Governing Section 2254

Cases, but such treatment would be plainly inappropriate in this

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

o @

announces “ready for trial."

The mere fact that no published case has ever confronted

this precise situation and held that the government’s conduct

violated constitutional norms does not establish that a holding

in favor of Moore would be a “new rule of law." No more so, at

least, than it could be said to establish that the State’s

actions here were so unconventional that they can be summarily

condemned as contrary to “some principle of justice so rooted in

the traditions and conscience of our people as to be ranked as

fundamental.” Snyder, 291 U.S. at 105.

Teague makes no pretense of prohibiting the federal courts

from applying well-established rules and precedent unless the

ultimate result “is so novel that it forges a new rule." Wright

v. West, 112 S.Ct. 2482, 2499 (1992) (Kennedy, J., concurring).

The right to be present at "all critical stages of the

proceedings" is just such a rule of general application. To

accept Respondent’s construction of Teague would improperly

abdicate this Court’s duty to review de novo questions of law and

mixed questions of fact and law and virtually eviscerate habeas

review. Shiro v. Farley, 114 S.Ct. 783, 790 (1994); Cuyler v.

Sullivan, 446 U.S. 335, 342 (1980).

B. Application of Moore’s Right to be Present

The right to be present extends to all “critical stages of

the proceedings." As more recently explained in Kentucky v.

Stincer, 482 U.S. 730 (1987), which, it is noted parenthetically,

was also decided before Moore’s judgment became final:

Although the Court has emphasized that this privilege of

presence is not guaranteed "when presence would be useless,

or the benefit but a mere shadow," due process clearly

requires that a defendant be allowed to be present "to the

extent that a fair and just hearing would be thwarted by his

absence.“ Thus, a defendant is guaranteed the right to be

present at any stage of the criminal proceeding that is

critical to its outcome if his presence would contribute to

the fairness of the procedure.

Stincer, 482 U.S. at 745 (internal citations omitted) (quoting

Snyder, 291 U.S. at 106-07, 108).

Judicial analysis has “emphasize[({d) ... the particular

nature of the . . . hearing” at issue, paying close attention to

the potential benefit to the defendant that could be gained by

his personal presence. Stincer, 482 U.S. at 745; Rice v. Wood,

44 F.3d 1396, 1401-02 (9th Cir. 1995). In United States v.

Gagnon, 470 U.S. 522 (1985), for example, the Court was heavily

influenced by the fact that the criminal defendants "could have

done nothing had they been at the conference, nor would they have

gained anything by attending." Id., 470 U.S. at 527.‘

Moore argues that “a fair and just hearing . .. [was]

thwarted by his absence" from the calendar calls when Slick

announced “ready.” He argues that his presence was necessary to

enable him to make his motion for self-representation at one of

those conferences -- a time, according to him, when the trial

court would have recognized its obligation to grant his request.

The defect with this argument is in its perspective. Moore

*“ Accord Snyder, 291 U.S. at 108; United States v. Veatch, 674

F.2d 1217, 1226 (9th Cir. 1981), cert. denied, 456 U.S. 946

(1982); Bustamante v. Eyman, 456 F.2d 269, 274-75 (9th Cir.

1972); Sturgis v. Goldsmith, 796 F.2d 1103, 1109 (9th Cir. 1986).

Cf. Rice, 44 F.3d at 1401-02.

* $lick did not announce on the record that he was ready for

trial at either the March 5 or March 9 conference. That he did

so off the record and did not need additional preparation time,

however, can be inferred from the fact that he did not ask for a

continuance beyond the few days requested by the prosecution.

approaches the issue with post hoc omniscience. Whether the

defendant has a right to be present at a particular proceeding

significantly depends upon “the particular nature of the...

hearing" and the benefits that could be gained by the defendant’s

participation. Shifting the focus to a retrospective inquiry of

what might have transpired in light of subsequent events, if the

defendant had been present earlier, deprives judges, prosecutors,

and defense attorneys of knowing whether they are required to

have the defendant in court before they can proceed. Adopting

Moore’s analysis would effectively mandate that defendants be

present at every possible stage of the proceedings, even those

which they voluntarily choose not to attend, irrespective of the

significance or importance of the individual proceeding itself.

' Moore’s approach overlooks the distinctions drawn by the

other cases. Every hearing would be a "critical stage" because

every hearing would be an opportunity where, had the defendants

been so disposed, they could have requested self-representation.

Under Moore’s analysis, even Stincer, for example, would have

been decided differently because, although Stincer never did

request self-representation, he might have done so at that time.

Moore insinuates that it is Kafkaesque to find that he was

properly excluded from the calendar calls while simultaneously

holding that his self-representation motion was too late because

it should have been presented at the calendar call. The harm

here, however, arose not because Moore was absent from the

calendar calls on March 5 and March 9, but because the master

calendar court failed to respect the fact that Moore’s motion was

being made at his first opportunity to address the court after

A6é

the upheaval in the relationship with his attorney.

II. The Record Does Not Conclusively Establish that the Trial

Court Improperly Denied Moore’s Motion to Substitute Counsel

"The denial of a motion to substitute counsel implicates the

defendant’s Sixth Amendment right to counsel and thus is properly

considered in [{a) habeas proceeding." Bland v. California Dep’t

of Corrections, 20 F.3d 1469, 1475 (9th Cir.), cert. denied, 115

S.Ct. 357 (1994). As explained a quarter-century ago in Brown v.

Craven, 424 F.2d 1166 (9th Cir. 1970), “to compel one charged

with grievous crime to undergo a trial with the assistance of an

attorney with whom he has become embroiled in irreconcilable

conflict is to deprive him of the effective assistance of any

counsel whatsoever.” Brown, 424 F.2d at 1170; accord Hudson yv.

Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S.

916 (1983).

The trial court’s ruling, however, will only be set aside

for an abuse of discretion. As the Ninth Circuit explained:

When reviewing the denial of a motion to substitute

counsel for abuse of discretion, we consider the following

three factors: "(1) timeliness of the motion; (2) adequacy

of the court’s inquiry into the defendant’s complaint; and

(3) whether the conflict between the defendant and his

attorney was so great that it resulted in a total lack of

communication preventing an adequate defense."

Bland, 20 F.3d at 1475 (quoting United States v. Walker, 915 F.2d

480, 482 (9th Cir. 1990)).

The parties agree that the motion was not denied as untimely

and, therefore, that the timeliness of the motion is not an issue

on habeas review. Bland, 20 F.3d at 1476; cf. Walker, 915 F.2d

at 482. The parties’ disputes focus on the other two factors --

whether the trial court’s inquiry was adequate and whether, on

its face, the record establishes a conflict so great that

substitution of counsel was required.

A. Adequacy of the Trial Court’s Inquiry

“When a defendant indicates dissatisfaction with his

counsel, the trial court ordinarily must conduct a thorough

inquiry in order to discover whether the situation is depriving

the defendant of an adequate defense." King v. Rowland, 977 F.2d

1354, 1357 (9th Cir. 1992); accord United States v. Robinson, 913

F.2d 712, 716 (9th Cir. 1990), cert. denied, 498 U.S. 1104

(1991). Although thorough, the inguiry need not be exhaustive;

it "need only be ‘as comprehensive as the circumstances

reasonably would permit.’" King, 977 F.2d at 1357 (quoting

Hudson, 6% F.2d at 831).°

In light of Hudson and McClendon, it is clear that the

master calendar judge’s inquiry was more than sufficient.

unlike McClendon and Hudson, the master calendar judge was not

He accommodated for this,

True,

intimately familiar with the case.

however, by asking a broad range of questions, soliciting further

complaints until Moore said that he had no others.’ Whatever may

* Whatever the constitutional minimum might be, the Ninth

Circuit has clearly rejected the possibility that such a motion

may be denied without any inguiry. In every instance where the

motion was met with a summary rejection, the Ninth Circuit has

summarily reversed. E.g. Bland, 20 F.3d at 1475;

= , 930 F.2d 1375, 1381 (9th Cir. 1991); Walker,

915 F.2d at 483; Brown, 424 F.2d at 1170. Beyond rejecting the

possibility that such motions can be summarily denied, however,

the Ninth Circuit has not definitively established any minimum

level of discussion. , 686 F.2d at 828 & n.1, 831;

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

. fPurther, while no substitute for further inquiry, the judge

undoubtedly benefitted from Moore’s letter that briefly outlined

the substance of his complaints. Cf. Walker, 915 F.2d at 482.

A8 |

be said about the court’s assessment of the facts, the court

cannot be criticized as not having been adequately informed.

Since, as the court acknowledged, it knew little about the

facts and circumstances of the case, it had an obligation to

ferret out the information to enable it to make a reasoned

Cf. Hudson, 686 F.2d at

The court questioned Moore about every

analysis of the extent of the conflict.

831. It clearly did so.

complaint and frequently asked Slick to explain his actions. The

court did not stop asking Moore about his complaints until Moore

himself said that he had expressed all the complaints that he

had. The canvass undertaken here is a far cry from the summary

rejections involved in Bland, Brown, and Torres-Rodriguez. Moore

identifies nothing concrete about which the master calendar judge

failed to inguire. On the basis of the current record, the

inquiry was constitutionally sufficient.'

Moreover, the adequacy of the trial court’s inquiry is not

the type of claim for which the record can be supplemented prior

to being resolved. Rather, like sufficiency of the evidence, the

trial court’s inquiry was either adequate or it was not. Any

comments in the way of further or additional questions will be

Dallas v. Arave, 984 F.2d 292, 296

By way of these summary judgment proceedings,

received by way of argument.

(9th Cir. 1993).

* The Attorney General argues that the state appellate court’s

approval of the trial court’s inquiry is a question of fact

entitled to the presumption of correctness. This borders on

frivolous. Cf, 28 U.S.C. § 2254(d). What the trial court did and

did not ask are the type of “basic, primary, or historical" facts

entitled to the presumption. Cuyler, 446 U.S. at 342. Whether

the trial court’s inquiry was “adequate” is a mixed question of

fact and law, reviewed de novo. Sumner v. Mata, 455 U.S. 591,

597 (1982).

i i aS

Moore has had a full opportunity to present his arguments

regarding the trial court’s inquiry on his motion for

substitution of counsel. These arguments are unpersuasive. The

Court not only denies Moore’s motion for summary judgment on this

aspect of the claim, but also sua sponte summarily adjudicates

this issue adversely to Moore.

B. Extent of the Conflict

In only limited situations will substitution of counsel be

constitutionally required. As the Supreme Court has made clear,

the Sixth Amendment right to counsel does not encompass-a right

to develop a “meaningful relationship” with one’s attorney.

Morris v. Slappy, 461 U.S. 1, 14 (1983).

quality of the relationship is not wholly outside the scope of

Nonetheless, the

the Sixth Amendment’s concerns. As quoted above, the Ninth

Circuit long ago confirmed that the constitutional right to

assistance of counsel is effectively denied when a defendant is

forced into trial while represented by a lawyer with whom he “has

become embroiled in irreconcilable conflict." Brown, 424 F.2d at

1170; accord Hudson, 686 F.2d at 829; Frazer v. United States, 18

F.3d 778, 783-84 (9th Cir. 1994).

The threshold for establishing “irreconcilable conflict,"

however, is quite high. In order to establish that substitution

of counsel is necessary, the defendant must demonstrate either

that there was a legal conflict of interest, e.g. United States

v. Rewald, 889 F.2d 836, 858 (9th Cir. 1989), amended, 902 F.2d

18, cert. denied, 498 U.S. 819 (1990), or that the "* (personal)

conflict .. . was so great that it resulted in a total lack of

communication preventing an adequate defense.’ Bland, 20 F.3d at

Ald

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1475 (quoting Walker, 915 F.2d at 482).

Moore does not claim that his relationship with Slick was

burdened by a conflict of interest. Rather, he complains that

his relationship had deteriorated to the point where substitution

of counsel was constitutionally required. As such, he must

satisfy the stringent standard employed by the Ninth Circuit. On

this record, Moore has failed to do so.

From a review of the record, it appears that Moore had three

basic complaints about Slick. First, Moore complained about his

lack of communication with Slick. Second, Moore feared that

Slick had not adequately prepared for the trial. Finally, Moore

complained that he had lost all trust in Slick, primarily as a

result of Slick’s having abandoned him in the holding cell during

the March 5 and March 9 status conferences. Moore does not now

Claim that there were any other disputes with Slick or his

performance that were not identified at the March 16 hearing.

1. Adequacy of Communication”

As to the sufficiency of Slick’s and Moore’s communication,

the trial court certainly could have more thoroughly investigated

the underlying facts. Because of the limited inguiry, the

underlying facts are unclear and, as a result, this Court’s

review is “somewhat hampered.” Bland, 20 F.3d at 1477.

* This complaint cannot be so glibly dismissed as a whimpering

demand for “more” communication simply because Moore had “some”

communication with Slick. Indeed, if it could be, no absence of

communication could ever be sufficiently severe. Any defendant

complaining of a “total lack of communication" is probably

seeking “more.” Many a defendant entitled to substitution of

counsel may well have had “some" communication. Finally, the

Attorney General suggests no guidance for its rhetorical "’some’

communication" standard.

All

The trial court was presented with two different visions of

the communication that had taken place between Moore and Slick.

Moore initially complained that Slick “didn’t really explain to

me the defense he plans to organise on my behalf." Although the

judge expressed reluctance about inquiring into the substance of

the conversations, he did ask Slick whether the conclusion was

accurate. Slick responded that he had "told him what I think

will fly. And I -- what I think won’t fly."

While the master calendar judge was apparently satisfied

with this response, Moore clearly was not. When asked whether

Slick’s explanation was accurate, Moore clarified that Slick had

only talked to him “about one part of Terry Avery’s statement,

and that was all. .. . (4) About how many times she was

supposed to have stabbed[{] the victim; and that’s it. That’s all

we’ve talked about." Slick did not demur to this as untrue. Nor

did the court solicit a response to Moore’s explanation. Whether

Slick was referring to Avery’s prior statement about the knife

when he said what “would fly" is unknown. Because the trial

judge failed to address this complaint when ruling on the motion,

his factual findings are also unclear.

Moore also complained that not only was he left in the dark

as to the proposed defense strategy, but also as to the theories

behind the motions that were filed. When the court informed

Moore that Slick had filed a motion to dismiss and a motion to

suppress evidence, Moore clarified "I understand that. But I

wanted him -- to discuss those motions with him and find out what

was in the motions and what he’s planning to argue." Moore added

that he had a suppression theory of his own and, when discussing

Al2

rE TR TEES

it with Slick, Slick was reluctant to include it.

Slick confirmed that he and Moore had discussed Moore’s

additional theory for suppression and expressed to Moore his

belief that the theory was not viable. Slick stated that he had

nonetheless included the theory in the papers that were

eventually filed. Slick, however, neither confirmed nor denied

that he had failed to discuss the motion to dismiss that he had

prepared. Nor did Slick deny refusing to discuss his own

theories for the suppression motion. Again, the judge did not

attempt to clarify this ambiguity nor did he address it when

ruling on the motion.

The trial court never indicated what standard it was

applying. Nor did it make any finding as to the amount or

substance of the communication. Inasmuch as the state courts

apparently find little cause for complaint over capital defense

counsel whose “only significant interview with (the defendant)

was at the courthouse on the morning of trial," People v.

Mayfield, 5 Cal. 4th 142, 201, 19 Cal. Rptr. 2d 836 (1993), after

having spent “only a total of 40 hours preparing for both the

guilt and penalty phases of the trial," jid., at 210 (Kennard, J.,

concurring and dissenting), it would be sheer speculation to

assume that the trial court discredited Moore’s factual

allegations -- especially when they were not refuted by Slick.

Whatever his findings of fact were, the judge must have

considered the amount of communication to be sufficient. Yet,

this conclusion cannot be assessed -- even for an abuse of

discretion -- absent an understanding of the underlying facts.

It is not at all clear that the master calendar judge disbelieved

Al3

Moore’s description of events. And, as described by Moore, the

anount of communication was marginal at best. Even as described

by Slick, however, this Court cannot make a definitive rulinc.

Slick did not deny Moore’s description of the events. All Slick

stated, in essence, was a formulaic conclusion that he believed

the conferences were adequate and, to Moore’s dismay,

disappointingly candid as well.

Insofar as Moore is complaining about the “infrequency of

his meetings with his attorney than about his reluctance to

communicate with counsel," United States v. Mills, 597 F.2d 693,

700 (9th Cir. 1979), the record does not conclusively establish

that this problem amounted to an “irreconcilable conflict" or

“total lack of communication" of the sort that would reguire a

change of counsel. It remains, however, a factor to be

considered in reviewing Moore’s other concerns.

2. Slick’s Degree of Preparation

Moore identified several specific facts which led him to

question Slick’s preparation for trial. First, during his

meeting with Slick on the day that Slick proposed declaring ready

for trial, Slick apparently failed to recognize the name of a

witness, James Jones, whom Moore had specifically asked Slick to

interview. Second, during that same meeting, Slick allegedly

displayed an inadequate familiarity with the specific facts of

the case and the record, including documented inconsistencies in

the anticipated testimony of the prosecution’s key witness.

Third, Moore believed that during the previous, long-term

continuances, Slick did not have an opportunity to prepare for

Moore’s trial because he was busy representing other clients.

Al4

As to the dispute regarding witness Jones, the trial court’s

findings must have been consistent with the undisputed facts.

Slick’s initial unwillingness to interview Mr. Jones was not a

basis for substitution of counsel because, by the time of the

hearing, Slick had already committed himself to interviewing mr.

Jones.

The next aspect of Moore’s complaint was that Slick was not

sufficiently familiar with the witnesses and facts in his case.

In the absence of any disagreement by Moore, the master calendar

judge must have credited Slick’s explanation that he had reviewed

the record, compiled notes, and that Moore’s discomfort arose

from Slick’s inability to respond to all the questions without

referring to his notes. An attorney can be adequately prepared

without having committed to memory every detail in the evidence.

The last aspect of Moore’s concern over Slick’s efforts was

the ultimate question of whether Slick had actually expended

substantial time preparing the case for trial. The trial court’s

explanation in denying the motion -- "Well, the Court is going to

find, based on this record, that Mr. Slick has adequately

prepared this case." -- obviously reflects an adoption of Slick’s

uncontroverted explanation as to his efforts. While the adequacy

of Slick’s preparation may be open to federal review, Sumner, 455

U.S. at 597, the trial court’s underlying findings are undeniably

factual in nature and, therefore, presumed correct unless proven

otherwise. 28 U.S.C. § 2254(d). The trial court plainly

concluded that Slick had in fact read and reviewed the

transcripts, police reports, jail records, and had spent far more

time preparing than Moore feared was the case. These conclusions

Al5S

ee Be SS eS es

have fair support in the record. Moore gives no reason why the

presumption of correctness does not attach to these findings.

Reviewing the record in the light most favorable to the

party opposing summary judgment, the Court cannot find that the

record conclusively demonstrates that Slick would have been

inadequately prepared by the time trial was expected to commence.

The master calendar court adopted Slick’s explanations and had no

discomfort with the absence of any intention on Slick’s part to

locate and interview Mr. Jones prior to trial. Cf. Walker, 915

F.2d at 483-85. Insofar as Slick’s preparation is concerned, the

face of the record does not establish that substitution of

counsel was constitutionally required as a matter of law.

32. Moore’s General Distrust

Probably the most significant problem with the relationship

-- and the one most difficult to objectively quantify -- was

Moore’s general distrust of and discomfort with Slick. The

tangible aspects of this complaint had two primary facets.

First, irrespective of the trial judge’s conclusion that Slick’s

investigative efforts were consistent with the constitutional

minimum, Moore nonetheless had a strong personal belief -- which

belief was not objectively unreasonable -- that Slick was not

exerting his best efforts. Moreover, Slick’s meetings with Moore

were not sufficiently frequent or sufficiently detailed to put

Moore’s mind at ease. The second aspect arose out of Slick’s

having effectively abandoned Moore in the holding cell on March 5

and 9 after Moore expressed an interest in representing himself.

A defendant "justifiably expects that a lawyer will use

every skill, expend every energy, and tap every legitimate

Al6

resource in the exercise of independent professional judgment on

behalf of the client." Rewald, 889 F.2d at 858; accord Frazer,

18 F.3d at 785. As discussed in the preceding section, Slick’s

failure to have interviewed Mr. Jones earlier was not a basis for

concluding that he would not be ready for trial. In light of

Slick’s apparently strong reluctance to interview Mr. Jones at

all, however, Moore may have been justified in questioning

Slick’s dedication to Moore’s defense.

While the trial court judge purported to concur in Slick’s

assessment of the futility in contacting Mr. Jones -- stating

“common sense tells me that Mr. Jones isn’t going to help you

very much" -- he had no factual basis for doing so. The judge

served in the master calendar department and nothing in the

record indicates that he had any knowledge of the facts or

witnesses in the case. Indeed, only moments before the instant

colloquy, while attempting to impress upon Moore the benefits of

representation by counsel, the judge confirmed he was only

speaking in general terms because "I know nothing about this

case. I’m not going to try this case." The only possible basis

for the judge’s conclusion was that Mr. Jones was going to be 3

called as a witness by the prosecution. This, however, would

prove to be an erroneous assumption.

As Moore recognized, Mr. Jones was a potentially important

defense witness. Jones was the person who opened the security

door to the building, allegedly enabling Avery, Harris, and Moore

to enter the complex. Moore knew Jones. He also knew that Jones

knew him and would have recognized him. Moore anticipated

(correctly) that Jones would testify (as he had in the separate

Al7

trial of co-defendant Harris) that he, Jones, did not see Moore

at the apartment complex on the night of the killings and that he

would have recognized Moore if he had seen Moore. People v.

Moore, 47 Cal. 3d 63, 83-84, 252 Cal. Rptr. 494 (1988), cert.

denied, 490 U.S. 1095 (1989). Under these circumstances, it was

entirely reasonable for Moore to want to have Slick meet with

Jones and confirm the extent to which Jones could be used to

prove that Moore was not present on the night of the murders.”

While the record suggests that Moore was expressing genuine

concerns about Slick’s efforts and while those concerns may have

been objectively reasonable, when reviewed in the light most

favorable to the party opposing summary judgment, the record does

not conclusively establish that substitution of counsel was the

only constitutionally permissible remedy.

The instances in which substitution of counsel will be

constitutionally required based on the defendant’s personal

misgivings about counsel will be extremely rare. First, unlike

defendants with monetary resources, "[tjhe law does not permit

{indigent defendants] to obtain the appointed counsel of (their)

choice." United States v. Ono, 997 F.2d 647, 651 (9th Cir.

1993), cert. denied, 114 S.Ct. 738 (1994); compare United States

presented in Walker, 915 F.2d 480. The Walker defendant

complained that his attorney had failed to contact several

witnesses who would have corroborated his claim of mistaken

identity and who could have provided information suggesting that

the defendant’s roommate was the actual culprit. As in Walker,

Moore’s “lack of confidence in his attorney arose out of a

disagreement over trial preparation and potential witnesses,

rather than any general unreasonableness or manufactured

discontent." Walker, 915 F.2d at 484. Contrary to the trial

court’s assertion, no matter whose interpretation is believed,

Moore was justifiably concerned about having Jones interviewed.

Al8

v. Lillie, 989 F.2d 1054, 1055 (9th Cir. 1993). Second, indigent

defendants cannot force the substitution of appointed counsel by

unilaterally refusing to cooperate with their attorneys absent

some cognizable or legitimate reason for doing so. Morris, 461

U.S. at 13."' Third, indigent defendants cannot manufacture a

need for new counsel simply by failing to develop a "meaningful

attorney-client relationship." Id.

To render substitution of counsel the only constitutionally

permissible path, the attorney and client must have become

embroiled in an irreconcilable conflict -- resulting in either a

“personal conflict that affected his communication with counsel,"

Castro, 972 F.2d at 1110, some other “breakdown in communication"

between the defendant and his lawyer, Rostcun, 986 F.2d at 1292,

an impediment to the “presert[{ation of] an adequate defense,"

Walker, 915 F.2d at 485, or a “serious obstacle to effective

representation," Ono, 997 F.2d at 651 -- which was not

attributable to the defendant’s petulance or lack of good faith.

A review of the many cases in which the Ninth Circuit and

Supreme Court have passed on the severity of attorney-client

disputes confirms that, while not ideal, Moore’s relationship

with Slick was not constitutionally intolerable. Cf. Morris, 461

U.S. at 13-14; Frazer, 18 F.3d at 783; Walker, 915 F.2d at 484.”

accord United States v. Roston, 986 F.2d 1287, 1292-93 (9th

Cir.), cert. denied, 114 S. Ct. 206 (1993); King, 977 F.2d at

1357; Hudson, 686 F.2d at 831. Cf. Frazer, 18 F.3d at 784.

% Here, unlike Walker, not only was the trial judge’s inquiry

more than adequate, but Moore did in fact have ongoing

discussions with his attorney. Whether those conversations were

“meaningful” -- i.e., more than idle pleasantries or vulgarities

~~ was not thoroughly analyzed by the trial judge, but was

(continued...)

Al9

Moore’s motion for summary judgment on the claim that the

master calendar judge violated Moore’s constitutional rights when

it refused to order a substitution of counsel is DENIED. Since

the Court has neither asked for nor received briefing on what

evidence outside the record exists or would be admissible, the

Court does not enter a final order on the merits of this clain.

III. The Request for Co-Counsel status

Moore’s letter also requested that the master calendar judge

“appoint me co-council (sic) with another lawyer." When the

master calendar judge asked what Moore meant by “co-counsel,"

Moore explained that he wanted "to be in a position in order to,

you know, ask the[) [the lawyers) about things and tell them, you

know, make sure they do the things I ask them to do."

2 (...continued)

inquired into at least briefly. The trial judge obviously

determined that the discussions were sufficient and, while that

conclusion is not irrefutably compelled by the record, neither is

it incontrovertibly refuted. Whether treated as a finding of

historical fact or a mixed question of fact in context of the

legal rule to be applied, the trial judge’s finding is not so

attenuated that it can be set aside without an evidentiary

hearing.

Similar to, but not as severe as, Walker, Moore had

substantial reason to be concerned about Slick’s preparation in

light of Slick’s failure to contact a relevant witness that Moore

had previously identified to him. Similar to -- but nowhere near

as severe as ~~ Frazer, Moore had to suffer through his

attorney’s imperious eruption and actual abandonment when Moore

voiced a desire to assert his constitutional rights. Slick’s

desertion of Moore in the holding cell -- twice -- was surely

sufficient to dislodge whatever trust that had been cultivated.

Nonetheless, despite the existence of these legitimate

disputes, even accepting that Moore neither trusted nor had faith

in Slick, the record does not conclusively establish that these

conflicts effected a total breakdown in his communication with

Slick. The record does not establish that Moore was unable to

communicate with Slick regarding significant, case-related

matters. Cf. Walker, 915 F.2d at 484. Wor does the record

establish "that the alleged conflict was so great that it

prevented (Moore) from presenting an adequate defense.” id.,

McClendon, 782 F.2d at 789.

A20

re a.

Although a hearing on the self-representation motion had

already been postponed until the following Monday, the court

responded that it appeared that Moore was asking for “stand-by”

counsel and that such assistance was not necessary “because you

are not pro per, you see?" When Moore confirmed that he wanted

permission to proceed pro se, the court reaffirmed that the pro

se request would not be considered until a later date.

A. Cognizability

Respondent’s cognizability argument is premised on the

assumption that Moore does not have a federal constitutional

right to serve as co-counsel. Since no federal] rights were

violated, the argument continues, his claim must be based on an

alleged violation of state law which, of course, is not

cognizable on federa) habeas. E.g. Estelle v. McGuire, 502 U.S.

62, 67 (1991); cf. Micks v. Oklahoma, 447 U.S. 343 (1980).

The defect in the argument -- besides being tautological --

is that it erroneously equates a failure on the merits with a

Bell _v. Hood, 327 U.S. 678, 682 (1946).

Moore asserts that he has a right, guaranteed by the federal

lack of jurisdiction.

constitution, to serve as co-counsel and that this federal right

was infringed by the state courts. Whether the state court’s

rulings in fact violated the federal constitution, as Moore

argues, is an appropriate inquiry on federal habeas review.

B. Teague Retroactivity

The Attorney General next argues that the claim must be

denied because, to vindicate these asserted constitutional

rights, would amount to creating a new rule of constitutional

criminal procedure during federal habeas review. The bane of

A2l

this argument is that it is necessary to review the underlying

merits in order to determine whether there was in fact such a

constitutional right in existence.”

i. Refusal to Permit Hybrid Representation

Notwithstanding Moore’s clear request for co-counsel status

~~ i.e., to be represented by counsel but in a position to

exercise control over the lawyer’s efforts -- the master calendar

judge treated the motion as one seeking appointment of advisory

counsel. The Ninth Circuit has noted a distinction between "“co-

counsel" and “stand-by,” or “advisory,” counsel. Distinguishing

between the forms of representation, the circuit observed:

[C]o-counsel and advisory counsel are terms that have

gained distinct meanings. Advisory counsel is generally

used to describe the situation when a pro se defendant is

given technical assistance by an attorney in the courtroom,

but the attorney does not participate in the actual conduct

of the trial. In the co-counsel situation, the attorney may

participate directly in the trial proceedings with the

defendant (examining witnesses, objecting to evidence,

etc.).

Locks v. Sumner, 703 F.2d 403, 407 (9th Cir.), cert. denied, 464

U.S. 933 (1983).

Although drawing a distinction between the forms, the

circuit refused to recognize a difference in their constitutional

stature. The circuit has ruled that neither type rises to the

level of constitutional importance. See United States y.

Halbert, 640 F.2d 1000 (9th Cir. 1981) (no right to co-counsel

status); Locks, 703 F.2d at 408 (no right to advisory counsel).

" Moore does not contend that he had any state law right,

which would have been protected by the due process clause, to

either co-counsel status or to appointment of stand-by counsel.

Cf. Hicks, 447 U.S. 343.

A22

Under Teague, a federal court may not announce or enforce

"new rules of constitutional criminal procedure” during habeas

proceedings. Teague, 489 U.S. at 310. Under Halbert, Moore had

no constitutional right to co-counsel status. Moore fails to

explain why faulting the trial court for having denied him co-

counsel status would not amount to creating a new rule of

constitutional criminal procedure within the meaning of Teague.

Similarly, under Locks, Moore had no federal right to

advisory counsel either. Moore is correct that the master

calendar judge erred in denying stand-by counsel on the basis

that Moore was not pro se after having expressly postponed a

hearing on the pro se request. Nonetheless, Moore cannot

complain of the error since he has no right to stand-by counsel.

As such, vindication of this claim would require the habeas court

to fashion a “new rule of constitutional criminal procedure" in

contravention of Teague.

IV. Denial cf Motion for Second Counsel

Moore does not argue that the federal constitution

independently guarantees him a right to be represented by two

attorneys. Rather, he asserts that the State extended this right

to him and the due process clause prohibits the State from

arbitrarily taking it away.

Approximately two years before the events at issue, in

Keenan v. Superior Court, 31 Cal. 3d 424, 180 Cal. Rptr. 489,

appea) dismissed, 459 U.S. 937 (1982), the California Supreme

Court decided that a series of California statutes entitled

capitally-charged defendants to representation by more than one

attorney if the circumstances so required:

A23

(Trial courts have) ample authority for appointment of an

additional attorney shown to be necessary for defense of a

capital case. ... The appointment is not an absolute

right, however, and the decision as to whether an additional

attorney should be appointed remains within the sound

discretion of the trial court. ... That discretion, of

course, must be guided by legal principles and policies

appropriate to the particular matter at issue.

Keenan, 31 Cal. 3d at 430.

Two years later, in this case, during the canvass on Moore’s

satisfaction with Slick, Moore requested appointment of a second

attorney. The trial court, however, rejected this out of hand:

THE DEFENDANT: Okay. And I was informed, too, that

because of the fact that I have a special circumstances

(sic), that I could have two representatives represent me in

this case. Is that correct?

THE COURT: No, I never heard of that. I never heard of

that. Two representatives? You mean two lawyers?

Moore retraced his steps somewhat and said he would be

satisfied with any two representatives, including himself serving

as co-counsel. On direct appeal, the California Supreme Court

ruled that the trial court carefully considered the request and

“exercised proper discretion in denying defendant’s Keenan

motion." Moore, 47 Cal.3d at 76.

A. The Claim is Cognizable on Federa] Habeas

What the Attorney General fails to recognize in its

cognizability argument is that Moore is not seeking purely a

vindication of state law. cf. Estelle, 502 U.S. at 67. Rather,

Moore here claims that he has a due process interest in the

State’s extension of the procedural guarantees that it accords to

all its other capital defendants.

The Ninth Circuit and Supreme Court have both recognized

that while the states may not be impelled to adopt any particular

A24

mode of procedure, “the failure of a state to abide by its own

statutory commands may implicate a liberty interest protected by

the Fourteenth Amendment against arbitrary deprivation by a

state." Fetterly v. Paskett, 997 F.2d 1295, 1300 (9th Cir.

1993), cert. denied, 115 S. Ct. 290 (1994). Given the obvious

importance of “the guiding hand of counsel" as “one of the

safeguards .. . deemed necessary to insure fundamental human

rights of life and liberty," Powel] _v. Alabama, 287 U.S. 45, 69

(1932), Johnson v. Zerbst, 304 U.S. 458, 462 (1938) == and

especially the heightened importance of counsel in capital cases

~~ California’s statutory guarantee of a provisional right to

second counsel in capital cases is precisely the type of

procedural right that is protected from arbitrary deprivation by

the due process clause. The Attorney General has failed to

suggest any reason why the Court should conclude otherwise. The

Claim is, therefore, cognizable on federal habeas. Fetterly, 997

F.2d at 1300, Campbell], 997 F.2d at 522.

As noted above, in response to Moore’s request for second

counsel, the master calendar judge unambiguously rejected the

possibility of appointing second counsel as unsupported by any

legal authority. The judge did not consider any of the "legal

“ As explained by another recent Ninth Circuit panel, “Hicks

ly. Oklahoma, 447 U.S. 343 (1980)) recognized that state laws

which guarantee a criminal defendant procedural rights... ,

even if not themselves constitutionally r ired, may give rise

to liberty interests protected against arbitrary deprivation by

the Fourteenth Amendment’s Due Process Clause."

Blodgett, 997 F.2d 512, 522 (9th Cir. 1992), cert. denied, 114

S.Ct. 1337 (1994).

A25

principles and policies appropriate to the particular matter at

issue." Keenan, 31 Cal. 3d at 430. The judge did not exercise

any discretion; rather, the court simply rejected the claim as

unprecedented: "No, I never heard of that."

As pithily characterized by Justice O’Connor, "It is a

paradigmatic abuse of discretion for a court to base its judgment

on an erroneous View of the law." Schlup v. Delo, 115 S. ct.

851, ____ (1995) (O’Connor, J., concurring). This is not, of

course, simply the view of a single justice, but rather

reflective of a long tradition in the common law. Cooter & Gell

v. Hartmarx Corp., 496 U.S. 384, 405 (1990).

€C. In the Unique Circumstances of this Case, the Trial

Court’s Error was Harmless

Even though the master calendar judge abruptly terminated

any discussion on the need for additional counsel by summarily

concluding that the request was without legal authority, because

Moore also had other motions on calendar relating to counsel’s

performance, the record adequately documents the basis for

Moore’s request for additional counsel. Because these reasons

were insufficient to justify appointment of second counsel, this .

Court can confidently conclude that, irrespective of the master

calendar judge’s unfamiliarity with the authority provided by

Keenan, second counsel would not have been authorized.

In describing the contours of the authority for appointing

second counsel, the state supreme court in Keenan noted several

’ Accord Campbell], 997 F.2d at 516 ("A court abuses its

discretion when it bases its decision on an erroneous legal

conclusion."), , 775 F.2d 1037, 1040 (9th Cir.

1985) ("There is an abuse of discretion when a judge’s decision

is based on an erroneous conclusion of law.").

A26

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factors that would always weigh heavily in considering a request

for additional counsel, including the need, heightened in a

capital case, “to provide a complete and full defense" coupled

with the “importance... (of) pretrial preparation in providing

a criminal defendant effective legal assistance." Id. at 431.

While vesting the trial courts with discretion to rule on

individual requests, the state supreme court explained:

If it appears that a second attorney may lend important

assistance in preparing for trial or presenting the case,

the court should rule favorably on the request. Indeed, in

general, under a showing of genuine need, and certainly in

circumstances as pervasive as those offered by the attorney

in this case, a presumption arises that a second attorney is

required.

Keenan, 31 Cal. 3d at 434. The specific facts of Keenan are

significant. While the capital nature of the case was an

undoubtedly significant factor, Keenan, 31 Cal. 34 at 430-32, the

court has stood firm that a defendant must still identify some

“important assistance" or “genuine need" before additional

counsel would be authorized. E.g. People v. Lucky, 45 Cal. 3d

259, 279, 247 Cal. Rptr. 1 (1988), cert. denied, 488 U.S. 1034

(1989)."

While Moore cannot be criticized for having failed to

present the “factual and specific need" in the context of his

request for second counsel -- as any discussion was effectively

terminated by the master calendar court -- Moore was able to

present his reasons therefor during the hearing on his request

“ Accord People vy. Burgener, 41 Cal. 3d 505, 524, 224 Cal.

Rptr. 112 (1986); , 28 Cal. 34 264, 168 Cal.

Rptr. 603 (1980), cert. denied, 450 U.S. 1035 (1981); People vy.

, 52 Cal. 3d 367, 410, 276 Cal. Rptr. 731 (1990), cert,

, 502 U.S. 834 (1991).

A27

for a change of counsel. Unlike Keenan, Moore did not present

any sound basis for the trial court to approve second counsel.

Although Moore identified several aspects of trial counsel’s

performance that he believed should have been more thorough, none

of the alleged failings was due to the absence of an attorney to

assist Slick. Rather, the deficiencies alleged were simply

criticisms of Slick’s ideas as to how to prepare for trial.”

v. The Pre-Trial Motion to Discharge Slick and Proceed Pro Se

A. OQverview of the Underlying Constitutional Right

On the following Monday, March 19, the final pre-trial

counsel-related matter -- Moore’s motion to discharge Slick and

proceed pro se -- was taken up in the master calendar department

in front of the same judge who had presided over all the prior

Superior Court hearings in this case.

In Faretta v. California, 422 U.S. 806 (1975), the Supreme

Court affirmed that the Sixth Amendment guaranteed not only a

right to proceed with counsel, but also "a constitutional right

to proceed without counsel when [the defendant) voluntarily and

intelligently elects to do so." Id. at 807 (emphasis original).

Few rights, however, are absolute. While the Court was firm that

defendants had a right of self-representation, it provided little

" It should be emphasized that the harmlessness conclusion is

not premised on a finding that a second attorney could not have

meaningfully contributed to the defense efforts or that the trial

court “could have" properly exercised its discretion to deny the

motion. Those analytic approaches would be inconsistent with the

very nature of the error involved -- the trial court’s failure to

exercise any discretion at all, thereby arriving at an arbitrary

result. Rather, the Court’s conclusion of harmlessness rests on

the finding that, at the hearing on the motion to substitute

counsel, Moore was unable to establish the prerequisites upon

which the second counsel was conditioned.

A28

guidance as to how that right would be implemented. Since self-

representation necessarily meant proceeding without a lawyer and,

therefore, surrendering “many of the traditional benefits

associated with the right to counsel,” the Court noted that "the

accused must ‘knowingly and intelligently’ forgo those

relinquished benefits." Faretta, 422 U.S. at 835."

In the years since Faretta, the courts have had the

opportunity to refine the parameters within which the self-

representation right may be invoked. Most recently, the Ninth

Circuit listed four principal conditions that must be satisfied:

“In order to invoke the right of self-representation, the request

must be (1) knowing and intelligent, (2) unequivocal, (3) timely,

and (4) not for purposes of delay." Peters v. Gunn, 33 F.3d

1190, 1192 (9th Cir. 1994); accord Armant v. Marquez, 772 F.2d

552, 555 (9th Cir. 1985), cert. denied, 475 U.S. 1099 (1986);

United States v. Arlt, 41 F.3d 516, 519 (9th Cir. 1994).

There is no dispute but that Moore was prepared to make a

knowing and intelligent waiver of his right to counsel and the

benefits related to assistance of counsel. Nor can it be argued

that Moore equivocated on his request.” Instead, the trial

“ The Court refused to impose minimum qualifications for

serving as one’s own lawyer, but stated that "a defendant need

not himself have the skill and experience of a lawyer in order

competently and intelligently to choose self-representation."

Ig. "“(H)is technical legal knowledge, as such, {is} not relevant

to an assessment of his knowing exercise of the right to defend

himself." Id. at 836.

" Moore’s letters to the court, his completion of the formal

petition to proceed in pro per, along with his numerous

statements of genuine dissatisfaction with Slick’s performance in

particular and his general distrust of most attorneys would

clearly refute any contention that Moore’s request was not

(continued...)

A29

court and state supreme court here found that the request was

untimely. The state supreme court further implied that the trial

court found that the motion was made for purposes of delay. The

Attorney General primarily defends the judgment based on these

two contentions.

B. Moore’s Motion Was Timely as a Matter of Law”

2. Ninth Circuit Precedent Establishes that Moore’s

Motion was Timely as a Matter of Law

The Ninth Circuit rule is clear. As frequently reiterated:

The constitutional right of self-representation,

recognized in » Must be timely

asserted. "A defendant must {however} have a last clear

chance to assert his constitutional right ... before

meaningful trial proceedings have commenced." Thus, a

motion to proceed pro se is timely if made before the jury

is empaneled.

Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982) (brackets

and ellipses original, citations omitted) (quoting Chapman v.

United States, 553 F.2d 886, 895 (Sth Cir. 1977)).

This is the standard universally applied in the Ninth

Circuit, both to state habeas cases as well as to cases on direct

appeal from federal trials. United States v. Price, 474 F.2d

1223, 1227 (9th Cir. 1973) (direct appeal); Maxwell] v. Sumner,

673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459 U.S. 976 (1982)

EEN we sere

su ciently definite. Armant, 772 F.2d at 555;

Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989).

Teague’s retroactivity analysis is no bar here s

explained below, under any of the standards employed ae ”

various courts, Moore’s motion was timely. The only standard

under which Moore’s motion would not have been timely is a rule

employed by only two isolated state courts. The Court finds that

this minority approach is “objectively unreasonable." Stringer

503 U.S. at __—, 112 S. Ct. at 1140. , on :

A30

(state habeas).” Under this standard, Moore’s motion -- no

matter when it was “deemed made" -- was timely as a matter of law

since the jury was not empaneled prior thereto.” Not

insignificantly, on both March 19 when the matter was heard in

the master calendar department and on March 22 when the first

relevant hearing was held in the trial department, the trial

court judges were both well aware that the trial was not going to

start that very day. Both knew that Slick had filed pre-trial

motions -- including one that would require testimony from out-

of-state witnesses -- that would prevent the actual trial from

starting on the designated day.”

Nevertheless, the Attorney General argues that this Court

should depart from the law of the Ninth Circuit. He argues that

the timeliness of a self-representation motion is a question of

state, not federal, law and, therefore, Moore’s untimeliness was

a state procedural default which bars review in this court.

The simple answer to the Attorney General’s argument is, of

course, that the Ninth Circuit has already on several occasions

- Accord Armant, 772 F.2d at 555 (same); United States v.

Smith, 780 F.2d 810, 811-12 (9th Cir. 1986); Savage, 924 F.2d at

1463 n.7 (state habeas); Arlt, 41 F.3d at 519 (direct appeal).

” Similarly, Moore’s motion directly to the trial judge --

which, instead of being treated as a motion to dismiss, was

treated as a renewal of the motion for self-representation -- was

also timely as a matter of law. Contrary to the reasoning that

the reviewing court used in relation to the master calendar

court’s rulings, when the trial judge denied the self-

representation motion he expressly acknowledged on the record

that there was no likelihood that the jury would be empaneled

within the following 6 days. (IA R.T. A-163:7-18.)

® The California Supreme Court’s finding to the contrary,

Moore, 47 Cal.3d at 81, is cleariy refuted by the undisputed

record. (IA R.T. 1:22-28, 17:21-25, A-163:7-18.)

A3l

applied the federal standard to state habeas cases. Maxwell], 673

F.2d at 1036; Fritz, 682 F.2d at 784; Armant, 772 F.2d at 555;

Savage, 924 F.2d at 1463 at n.7. This Court is bound by the

precedent of the Ninth Circuit and, therefore, must follow those

cases applying the federal timeliness standard to state cases.”

2. The Standard for Adjudging the Timeliness of a

Significance Properly Governed by Federa] Law

Notwithstanding the Ninth Circuit’s clear instructions, the

Attorney General argues that the timeliness of a motion for self-

representation is purely a question of state procedural law,

properly relegated to the state courts and immune from federal

review. This is incorrect for two reasons. First, there is a

substantial federal interest in ensuring that the Faretta right

* As the Ninth Circuit has previously explained in the

context of differing implementations of the rights confirmed by

Faretta:

Federal courts must apply federal constitutional law in

cases properly before them under the federal habeas statute.

It is thus the district court’s duty to apply the law of the

appropriate circuit to all persons presenting claims within

its jurisdiction. State interpretations of the federal

constitution and laws are persuasive authority, but a

district court may consider them on federal questions only

if the question is otherwise open.

Bittaker v. Enomoto, 587 F.2d 400, 402 n.1 (9th Cir. 1978)

(citation omitted), cert. denied, 441 U.S. 913 (1979).

Here, the question is not “otherwise open." The issue has

been resolved in prior Ninth Circuit cases. The "jury

empanelment” rule for timeliness has clearly been held applicable

to state habeas review. Armant, 772 F.2d at 555 (citing Fritz,

682 F.2d at 784, and Maxwell], 673 F.2d at 1036); Savage, 924 F.2d

at 1463 n.7. The Attorney General’s argument that the Ninth

Circuit has allegedly “improperly overstepped its authority in

doing so" is properly presented to the circuit sitting en banc or

the United States Supreme Court, , 929 F.2d

507, 510 (9th Cir. 1991), cert. denied, 502 U.S. 1115 (1992), not

to this district court. Bittaker, 587 F.2d at 402 n.1.

A32

is not circumvented by the erection of state procedural barriers

that make invocation of the right a practical impossibility.

Second, the state law relied upon by the Attorney General

confirms that the California courts are fully in accord with the

view that the timeliness of a self-representation motion is a

federal question, not a matter of state procedure.

a. The Federa) Courts have Treated Timeliness as

a Matter Infused with a Federa] Interest

The Supreme Court did not propose standards for gauging the

timeliness of a self-representation motion in Faretta because, in

that case, the first request for self-representation was made

“weeks before trial.” Faretta, 422 U.S. at 835. While the States

might be granted some leeway in establishing timeliness standards

for self-representation motions, it should be beyond dispute,

especially in light of the very facts of Faretta itself, that the

State could not constitutionally establish the initial detention

hearing or arraignment as the cut-off date by which a request for

self-representation must either be asserted or forever waived.

Yet, in Moore’s case, the state supreme court announced a

standard which, in practice, would have precisely that effect.

In rejecting Moore’s arguments on appzal, the state supreme

court did not simply conclude that the self-representation

motion, deemed to have been made on the Friday preceding a Monday

trial date, was properly denied because it was made on a date

that trial could have begun. Moore, 47 Cal. 3d at 79. Nor did

it simply fail to consider valid the explanation tendered for the

timing of the pro se request; the state court went further to

hold, in the alternative, that the request would have been

A33

“~ Of YW &

untimely even if deemed to have been made on March 5 -- nearly a

month before the jury was eventually empaneled on March 29.

Moore, 47 Cal. 3d at 80.

Because the state court appears to perceive that any self-

representation request that could require a continuance would be

per se untimely, it has come perilously close to declaring that

the right to represent oneself (especially in non-capital cases),

while frequently available as a matter of theory, is virtually

never available in reality. The rule applied by the state court

appears to be in direct conflict with Faretta itself.

In adopting jury empanelment as the point when the self-

representation ceases to exist as an entitlement and, rather,

becomes subject to the trial court’s discretion, the Ninth

Circuit adopted the Fifth Circuit’s analysis in Chapman v. United

States, 553 F.2d 886. Maxwell], 673 F.2d at 1036; see also Fritz,

682 F.2d at 784. It is noteworthy that Chapman itself also

acknowledged that the Ninth Circuit had previously used, without

expressly adopting, jury empanelment as the critical point for

determining timeliness. Chapman, 553 F.2d at 894 (citing Price,

474 F.2d at 1227). The Fifth Circuit also noted that jury

empanelment was the crucial stage relied upon by the Second and

District of Columbia Circuits as well. Beyond simply counting

cases, however, the Fifth Circuit went on to explain:

If there is to be a Rubicon beyond which the defendant has

lost his unqualified right to defend pro se, it makes far

better sense to locate it at the beginning of defendant’s

trial, when the jury is empaneled and sworn, than when

defense counsel announces "ready." First, the declaration

of “ready” at a calendar call bears no functional relation _

to the pro se right or to the actual beginning of trial;

there may be many cases on a court’s docket, and delays as

long as the eleven days in this case [between 13 and 24 days

A34

in Moore’s case] between “ready” and trial are not uncommon.

Second, a defendant may not appear at calendar call, and his

first opportunity directly to address the court regarding

his counsel may be the day of his trial. Third, the

defendant may acquire disconcerting information about the

substance or manner of his counsel’s planned defense only

once counsel begins the voir dire. Fourth, the expense of

any delay rises dramatically once the jury is empaneled.

Finally, a mid-trial change to a pro se defense may be

thought to disrupt the continuity of ongoing proceedings, a

danger not present when the defendant asserts his right to

defend himself before the jury is sworn.

Chapman, 553 F.2d at 894.”

The standard for adjudging the timeliness of a motion for

self-representation is thoroughly infused with federal concern

over a proper implementation of the constitutional right of self-

representation.” In the words of the Ninth Circuit and Supreme

*% In Chapman, the Fifth Circuit noted that "Chapman’s counsel

announced that he was “ready” while knowing that Chapman wished

to discharge him, that Chapman wished to represent himself, and

that no one had yet informed the judge of a choice Chapman had

already announced to his counsel." Chapman, 553 F.2d at 894-95.

So too here, Slick announced “ready” -- whether on March 5, 9, or

16 -- “while knowing that (Moore) wished to discharge (Slick),

that (Moore) wished to represent himself, and {as of the hearings

on March 5 and March 9) that no one had yet informed the judge"

of Moore’s request.

Again, in this case as in Chapman, "the judge postponed

until (later) consideration of [the defendant’s) request to

discharge his counsel while at the same time accepting counsel’s

declaration of ‘ready.’" Chapman, 553 F.2d at 895. As explained

by the Fifth Circuit,

To allow (a defendant’s)} right to defend pro se to be

foreclosed merely by his counsel’s declaration of ready

would be fundamentally unfair when, as here, (the defendant)

no longer wanted his attorney to represent him. One can

hardly say that the defense is “ready” if a defendant has

already parted ways with his appointed counsel.

Chapman, 553 F.2d at 895.

* The First Circuit has noted that using jury empanelment as

the marker for timeliness is consistent with the fact that this

is the point when jeopardy attaches to the prosecution.

, 933 F.2d 89, 96 (1st Cir.),

denied, 502 U.S. 959 (1991). ( ), Sort.

A35

Court, “the federal rule is an integral part of the

constitutional guarantee." Locks, 703 F.2d at 406 (quoting Crist

vy. Best, 437 U.S. 28, 32 (1978)). “Whatever springes the State

may set for those who are endeavoring to assert rights that the

State confers, the assertion of Federal rights, when plainly and

reasonably made, is not to be defeated under the name of local

practice." Davis v. Wechsler, 263 U.S. 22, 24 (1923). Even if

the Ninth Circuit had not, on numerous occasions, applied the

federal timeliness standard on state habeas review, the question

of timeliness would properly be analyzed by this Court under

federal constitutional standards.

b. California’s Rules Regarding the Timeliness

of Self-Representation Motions are Based on

Federa] Law

_ Moreover, however, the state court’s own analysis of the

timeliness inquiry confirms that it was based on an analysis of

the federal guaranty and not an attempt to impose a state

procedural hurdle in the way of prospective pro se criminal

defendants. The state supreme court herein expressly rested its

holding upon its prior decision in People v. Windham, 19 Cal. 3d

121, 137 Cal. Rptr. 8, cert. denied, 434 U.S. 848 (1977). Moore,

47 Cal.3d at 79.

Windham, in turn, was clearly concerned with interpreting

and applying the federal constitutional guaranty. Before setting

forth the rule to be followed in California, the state court

reviewed the cases decided in other state and federal courts,

Windham, 19 Cal. 3d at 126-27, and concluded that self-

representation motions made “within a reasonable time prior to

the commencement of trial" invoked a "constitutionally mandated

A36

ae ee ae ae a. 2 oe ee

-~ »-

v + o

unconditional right" whereas self-representation motions made

mid-trial raised no constitutional concerns. Id. at 128-29 & 129

n.6.

The trial court’s ruling herein was similarly based on an

understanding of the federal constitutional guaranty and not on a

separate or independent rule of state procedure. The trial court

specifically cited the state court of appeal decision in People

vy. Ruiz, 142 Cal. App. 3d 780, 191 Cal. Rptr. 249 (1983), as the

basis for its ruling on timeliness. Ruiz, to no surprise, was

based explicitly on Windham. Further, Ruiz expressly

acknowledged that the federal courts had interpreted the

timeliness standard differently, but explained that it was

obligated to follow the timeliness interpretation of the state

supreme court. Ruiz, 142 Cal. App. 3d at 788 n.3 (citing Fritz,

682 F.2d at 784, and Chapman, 553 F.2d at 894-95).

2. Moore’s Motion for Self-Representation was Timely

Under Any Standard

Ultimately, however, the Attorney General’s argument is

unavailing because, under the standards enforced in virtually

every jurisdiction in the country, including the standard

putatively applied by the state supreme court in Moore, based on

the record currently before the Court, Moore’s motion was timely

as a matter of law.

Moore’s motion was per se timely under the standard employed

by the District of Columbia, First, Second, Fifth and Eighth

Circuits as those circuits have adopted the same timeliness test

A37

as is used by the Ninth Circuit.” So too would the motion have

been per se timely under the standards used by the Fourth, Sixth,

and Seventh Circuits. These latter three circuits have declared

that self-representation motions are timely if made before

“meaningful trial proceedings” have commenced, usually defined as

the empanelment of the jury but with a willingness to closely

scrutinize the request once jury selection has started.”

” United States v. Dougherty, 473 F.2d 1113, 1124 (D.c.cir.

1972); Betancourt-Arretuche, 933 F.2d at 96;

, 348 F.2d 12, 16 (2d Cir. 1965), cert.

rel. Maldonado vy. Denno

denied, 384 U.S. 1007 (1966); Chapman, 553 F.2d at 894-95; United

, 798 F.2d 1155, 1155-56 (8th Cir. 1986)

(adopting Second Circuit standard); Fritz, 682 F.2d at 784;

, 895 F.2d 714, 715, 717 (11th Cir. 1990) (jury

actually sworn, but noting in dicta that jury selection may be

crucial evert).

A significant number of state courts have adopted this test

for timeliness. Barnes v. State, 258 Ark. 565, 570-71, 528

S.W.2d 370 (1975); State v. Cornel], 179 Ariz. 314, 878 P.2da

1352, 1364 (1994); , 6 Mass. App. Ct. 959,

960, 383 N.E.2d 1144 (1978) (adopting D.C. and Second Circuit

standards) ; 1» 36 N.Y¥.2d 10, 17-18, 364 N.Y.S.2d

837, 324 N.E.2d 322 (1974); Ex Parte Winton, 837 S.W.2d 134, 135

(Tex. Crim. App. 1992) (citing , 673 S.W.2d

578, 585 (Tex. Crim. App. 1984)); Stockton v. Commonwealth, 241

Va. 192, 202-03, 402 S.E.2d 196, 201-02 (dilatory purpose is

separate basis for denial), cert. denied, 502 U.S. 902 (1991).

* United States v. Lawrence, 605 F.2d 1321, 1325 (4th Cir.

1979), cert. denied, 444 U.S. 1084 (1980); Robards v. Rees, 789

F.2d 379, 383-84 (6th Cir. 1986); , 853

F.2d 551, 553 (7th Cir. 1988), cert. denied, 488 U.S. 1033

(1989); , 938 F.2d 737, 743 (7th Cir.

1991). Cf. Horton, 895 F.2d at 715, 717.

Several states have adopted this pre-"jury empanelment"

test. State vy. Cromwel], 253 Kan. 495, 505-06, 856 P.2d 1299,

1307 (1993) (prior to trial, assertion of right must be honored;

mid-trial motion is untimely) ; State v. Nix, 327 So.2d 301, 354

(La. 1975) (motion made after jury selection is untimely), cert.

denied, 425 U.S. 954 (1976); , 558 So.2d 843, 847

(Miss. 1990) (mid-trial request is untimely).

Citing United States v. Merchant, 992 F.2d 1091, 1095 (10th

Cir. 1993), the Attorney General incorrectly groups the Tenth

Circuit as being among the circuits that have departed from the

jury empanelment approach. Merchant did not involve invocation

of the right to proceed pro se. Rather, it involved an attempt

(continued...)

A38

o ovawees www »

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nv + Oo

So too would Moore’s motion been found timely under the test

used in the only remaining circuit, the Third, which does not

consider timeliness to be an independent factor in determining

whether to permit self-representation. Rather, it has simply

focused on whether the motion was made in good faith and not

interposed as a tactic to secure unjustifiable delay.”

Although not employed by any of the federal courts, a

handful of States have adopted a standard similar to the one

announced by California in Windham, 19 Cal. 3d 121, and

purportedly applied by the state supreme court in Moore, 47 Cal.

3d at 79.” Under this standard too, however, it would have been

™ (...continued)

at mid-trial withdrawal of pro se status with a concurrent re-

invocation of the right to counsel. The Tenth Circuit there held

that the request for counsel was unduly delayed and, therefore,

properly denied since the government had proceeded through two-

thirds of its case. The question at issue in Merchant was very

different from the question at issue here -- the time by which

defendants must assert their right to proceed pro se. No other

Tenth Circuit case appears to have resolved the question at issue

herein. Further, as a case involving a mid-trial reguest, it can

hardly be said that the Tenth Circuit in Merchant rejected the

majority approach adhered to by the Ninth Circuit.

* Government of Virgin Islands v. James, 934 F.2d 468, 470

(3d Cir. 1991); , 674 F.2d 185, 187 (3d

Cir. 1982). While the Third Circuit uses a different analytical

framework, its analysis is not inconsistent with the Ninth

Circuit’s. For, in determining whether a self-representation

motion must be granted, the Ninth Circuit has added as a separate

element, beyond pure "timeliness," that a self-representation

motion need not be granted if interposed for purposes of delay.

Adams, 875 F.2d at 1442; Fritz, 682 F.2d at 785. This test has

also been adopted by two state courts. Snead v. State, 286 Md.

122, 132, 406 A.2d 98, 103 (1979); + 445 Mich.

412, 432 n.12, 519 N.W.2d 128, 136 n.12 (1994); Hamie) v. State,

92 Wis. 2d 656, 285 N.W.2d 639, 649 (1979).

* People v. Mogul, 812 P.2d 705, 708 (Colo. 1991); Lyons v.

State, 106 Nev. 438, 445-46, 796 P.2d 210, 214-15 (1990); Matter

, 100 Wash.2d 669, 674-75, 675 P.2d 209 (1983)

of Richardson

(citing State v. Fritz, 21 Wash.App. 354, 360-61, 585 P.2d 173

(continued...)

A39

error to deny Moore’s motion as untimely.

In Windham, the California Supreme Court held that a motion

to proceed pro se would be timely if asserted “within a

reasonable time prior to the commencement of trial." Id., 19

Cal. 3d at 128. In addition, the court remarked that motions

interposed at a later time should also be deemed timely if

conjoined with “some showing of reasonable cause for the lateness

of the request." Jd. at 128 n.5. The Windham court expressly

cautioned, however:

Our imposition of a “reasonable time" requirement should

not be and, indeed, must not be used as a means of limiting

a defendant’s constitutiona] right of self-representation.

We intend only that a defendant should not be allowed to

misuse the Faretta mandate as a means to unjustifiably delay

a scheduled trial or to obstruct the orderly administration

of justice.

Id. (emphasis original).

Thus, the court explained:

When the lateness of the request and even the necessity of

a continuance can be reasonably justified the request should

be granted. When, on the other hand, a defendant merely

seeks to delay the orderly process of justice, a trial court

is not required to grant a request for self-representation

without any ability to test the request by reasonable

standards.

Ia.

Although the state supreme court herein purported to apply

the Windham standard, the only inquiry it undertook was whether

the motion was made in close proximity to trial. But Windham

* =(..-continued)

(1978) (adopting Windham standard)); Williams v. State, 655 P.2d

273, 276-77 (Wyo. 1982); , 175 W.Va. 572, 574

n.2, 336 S.E.2d 535 (1985) (motion on day of trial not timely,

but subject to exercise of discretion in light of circumstances

of the case, citing , 172 W.Va. 656, 310 S.E.2d

173, 189-90 (W.Va. 1983)).

A40

wr —

required more. No differer! ‘han the Ninth Circuit’s analysis in

Fritz, Windham acknowledged that there are often “situations in

which a request for self-representation in close proximity to

trial can be justified. When the lateness of the request and

even the necessity of a continuance can be reasonably justified

the request should be granted." Windham, 19 Cal. 3d at 125 n.5.

The record before this Court -- uncontested by Respondent --

plainly demonstrates that Moore had more than adequately

justified the timing of his request." The master calendar judge

did not question Moore’s description of the timing of events.

Nor did the California Supreme Court.” In light of the

* While the state supreme court found that Moore’s motion was

not “made” until Friday March 16, when the hearing was eventually

held, this finding -- if considered “factual" and therefore

within the scope of § 2254(d)‘s presumption of correctness -- is

plainly contradicted by the record. 28 U.S.C. § 2254(d) (8).

The state court reasoned that "what defendant was requesting

with regard to counsel... (was) not readily apparent from the

letter." Moore, 47 Cal.3d at 79. It found, therefore, that "the

date of the hearing, when the court was able to elicit from

defendant his concerns, (is the date) that we must treat as the

date of defendant’s Faretta motion." Id.

This analysis is in plain conflict with the undisputed

record. Moore’s letter to the court was in no way ambiguous as

to his intention to seek permission to proceed pro ge. At the

conclusion of his letter, Moore asked for two specific forms of

relief, the first was to be permitted to attend all future court

hearings, and the second was, in Moore’s own words:

2) I ask that the court appoint me co-council (sic) with

another lawyer =

UA) @ ”

, 422 U.S.

Insofar as is relevant to applying the "reasonable time

before trial" standard, the state court’s finding regarding the

date of the motion is clearly rebutted by the record.

"Convincing evidence" -- i.e., the undisputed record -- clearly

establishes “that the factual determination by the state court

was erroneous.” 28 U.S.C. § 2254(d). (Under the governing Ninth

Circuit standard, of course, this finding is of no consequence. )

% In rejecting Moore’s explanations without seriously

considering the reasons for the timing of Moore’s request, the

(continued...)

A4l

procedural posture of this case, this Court need not question the

accuracy of the statements contained in Moore’s letter. Since

the Attorney General does not seek to supplement the record in

this regard, for purposes of summary judgment, the Court finds

that Moore’s reasons for the timing of his motion were those

expressed in his letter.” Those reasons more than adequately

justified the timing of the self-representation motion.™

™ (...continued)

state court steered a course very similar to the one taken by

Kentucky and Indiana -- both of which consider only the proximity

of the trial date and disregard any reasons for the timing of the

request. Moore v. Commonwealth, 634 S.W.2d 426, 430-31 (Ky.

1982); Smith v. State, 474 N.E.2d 973, 979 (Ind. 1985). These

are the only two jurisdictions in the nation -- with California

arguably joining as a third in light of the functional analysis

applied in Moore -- to employ such a stringent approach to the

timeliness of a self-representation motion.

*" Im light of the master calendar judge’s acceptance of

Moore’s description of the pre-letter events and the state

supreme court’s finding that the trial court was “well aware of

defendant’s stated reasons," these facts might even be entitled

to the statutory presumption of correctness. 28 U.S.C. § 2254(d).

“ Moore’s initial complaint focused on Slick’s preparation

for trial and refusal to interview Mr. Jones. Whether Moore was

correct in his assessment of Slick’s readiness is not relevant.

Equally irrelevant is whether the trial court agreed. "It’s the

client’s comfort, not the judge’s, that the Sixth Amendment

protects." Lillie, 989 F.2d at 1056. Thus, the critical facts

were that Slick’s efforts were unsatisfactory to Moore, that

Moore’s criticisms were not spurious, and that these were bona

fide expressions of discomfort, not simply manufactured disputes

designed to impede the judicial process.

Moore could not reasonably be expected to complain of

Slick’s trial preparation until that preparation was

substantially complete. Indeed, at the previous status

conferences Slick himself acknowledged that his investigation was

not yet complete. Any earlier criticism of trial counsel’s

preparation efforts would have been premature.

Once it is clear that the dispute did not arise until March

5, it is also clear that Moore did not unduly delay presentation

of his request to proceed pro se. The March 5 confrontation

between Moore and Slick occurred shortly before a status

conference in the master calendar court. Slick abandoned Moore

in the holding cell outside the courtroom. While concurring in a

(continued...)

A42

In light of the compelling justification for the timing of

Moore’s motion and the clear fact that it was presented at

Moore’s first opportunity to do so, the state court never

“ (...continued)

four-day continuance to accommodate the prosecutor, Slick did not

mention Moore’s dissatisfaction with Slick’s own preparation.

Moore was not present at that hearing to express his desire to

proceed pro se.

The events at the hearing, in fact, reinforce the

reasonableness of the self-representation motion’s timing. While

Mo>cre’s pro se request was conditioned on the trial court’s

refusal to remove Slick and refusal to grant Moore co-counsel

status, Moore’s desire to excuse Slick entirely was strongly

fortified when Slick went to the March 5 hearing -- knowing that

Moore disagreed with Slick’s state of readiness and knowing that

Moore desired to request co-counsel or pro se status -- and left

Moore in the holding cell outside the courtroom and conveyed to

the court none of Moore’s concerns. Prior to the March 5

meeting, Moore was primarily interested in co-counsel status.

After being upbraided by Slick and then excluded from two

hearings, however, Moore concluded that his primary objective

should be to have Slick entirely removed from the case or at

least subordinated to someone else. Moore’s sense of betrayal --

whether reasonable or not -- could not have been expressed to the

court prior to these events actually having taken ple«ce.

According to Moore’s letter, after the March 5 hearing,

Slick informed him that the case had been trailed until Friday

March 9. It was entirely reasonable for Moore to expect to be

present at the March 9 hearing and to be permitted to present his

complaints about counsel that same week. Withholding his

complaints about Slick for these few days was fully justified.

As fate would have it, however, on March 9, Moore was again

excluded from the hearing and was later informed that the case

had been continued again for another week.

At this point, Moore realized that he would have to take

affirmative steps to guarantee himself an audience with the

court. And, indeed, he did so. Over the weekend following

Friday March 9, Moore prepared a letter to the court explaining

his difficulties with Slick and clearly expressing his desire to

proceed pro se if no other solution was available. The letter

was dated Saturday March 10 and postmarked Monday March 12.

Moore acted as swiftly as reasonably could be expected. He

cannot be faulted for the trial court’s failure to address the

matter any earlier.

On direct appeal, however, while quoting Windham’s language

that a request made in close proximity of trial need not be

granted “without some showing of reasonable cause" for the timing

of the request, Moore, 47 Cal. 3d at 79, quoting Windham, 19 Cal.

3d at 128, the court barely acknowledged the reasons for the

timing of Moore’s self-representation motion and certainly never

directly confronted their legitimacy.

A43

o owen we Ww WN

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explained why these reasons did not provide the requisite showing

of “reasonable cause.“ Indeed, while the majority took pains to

distinguish the controlling federal authority and the dissent’s

reliance thereon, the majority never explained why Moore’s motion

was not sufficiently prompt other than to remark that “the trial

court herein was well aware of defendant’s stated reasons for

delay in asserting his right to self-representation." Moore, 47

Cal. 3d at 81.

It is perverse to find a self-representation request

untimely or unjustifiably delayed when it could not reasonably

have been presented any earlier. Even if the appropriate

standard for gauging the timeliness of a self-representation

motion were the standard set forth in Windham, the state court

erred in applying that rule to the facts of Moore’s case. Under

any viable standard, Moore’s motion was timely.”

* The Court emphasizes that, by engaging in the foregoing

analysis, it has not accepted Moore’s invitation to re-apply

California’s rule to determine whether the motion was timely

under California state law. The state courts are the final

expositors on the interpretation of state law and the state’s

interpretation is binding on the federal habeas court unless it

is “untenable” or “appears to be an obvious subterfuge to evade

consideration of a federal issue." McSherry v. Block, 880 F.2d

1049, 1053 n.3 (9th Cir. 1989), cert. denied, 499 U.S. 943

(1991). See also Knapp v. Cardwel], 667 F.2d 1253, 1260 (9th

Cir.), cert. denied, 459 U.S. 1055 (1982); Aponte v. Gomez, 993

F.2d 705, 707 (9th Cir. 1993). As such, the federal habeas court

is not empowered to decide whether the state court’s ruling was a

correct application of the state law. Estelle, 502 U.S. at 67-

68. Cf. McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir.), cert.

denied, 114 S.Ct. 622 (1993); Suniga v. Bunnell], 998 F.2d 664,

668 (9th Cir. 1993). That is a function exclusively relegated to

the state courts.

There is no need to question whether the state court’s

interpretation of its rule is “untenable” or “an obvious

subterfuge" since the analysis here is simply that, even if the

Windham standard were in fact the federal constitutional

standard, Moore’s motion should have been found timely.

Cc. Moore’s Motion Was Not Made for the Purpose of Delay

1. The State Courts’ Factual Findings

The trial court did not find that Moore’s motion was made

for the purpose of delay. Rather, insofar as postponement of the

trial date is concerned, the trial court rather clearly premised

its ruling on the finding that delay would result -- not that

delay was the motivation or purpose.

In fact, the master calendar court never inguired into

Moore’s justification for the timing of the motion. While the

master calendar judge repeatedly told Moore that he would be

permitted to represent himself only upon demonstrating that he

was making a voluntary and intelligent waiver of his right to

counsel (IA R.T. 12:19-13:5, 13:21-23, 20:10-18, 20:23-24, 24:2-

7, 29:28-30:5), not once did the judge ever suggest that the

outcome of Moore’s motion would depend on whether there was "a

very good reason" for the timing of his motion. As acknowledged

by the Attorney General and the state supreme court, by virtue of

Moore’s letter, the court was “well aware of defendant’s stated

reasons" for the timing of his self-representation request.

Contrary to the Attorney General’s argument, however, the clear

inference from this is that the trial court did not question the

genuineness of Moore’s request.™

* Although the master calendar judge repeatedly stated that

he had to assure himself that Moore was not attempting to "commit

legal suicide", the trial court never expressed discomfort with

the timing of Moore’s motion. Indeed, the proximity to trial and

potential need for any continuance -- let alone a substantial

continuance -- were never raised until the master calendar judge

impressed upon Moore the shallowness of Moore’s understanding of

the legal process.

While the trial court ultimately found that substitution of

(continued...)

A45

“v Oo WY &

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The trial court did find that Moore was “unwilling” to

proceed to trial that day if granted the right to represent

himself.” Contrary to Respondent’s argument, however, the trial

court did not find that Moore invoked his right of self-

representation in order to obtain a delay or to impede the

administration of justice. The trial court found only that

granting the request would have required a continuance, even if

that effect was not initially intended by Moore.

“TA)bsent an affirmative showing of purpose to secure

delay," however, this was not a sufficient ground for denying

Moore his constitutional right to represent himself. Fritz, 682

F.2d at 784 (emphasis original). The alleged finding by the

trial court that Moore was acting with a dilatory purpose is not

entitled to a presumption of correctness because the trial court

* (...continued)

counsel was unnecessary, the ruling established only that the

master calendar judge had more faith in Slick’s skills and

preparation than did Moore. The trial court never insinuated and

never found that Moore’s complaints were fabricated, only that

they were not sufficiently serious or objectively compelling in

light of Slick’s explanations. The trial court, however, was not

the client; Moore was. Irrespective of the trial court’s faith

in Slick, Moore retained the right to proceed without counsel

even close to the trial date so long as he was not invoking his

pro se rights for an improper purpose. Cf. Lillie, 989 F.2d at

1056.

” his factual finding is entitled to a presumption of

correctness under § 2254(d) and, on the current record, is not

reasonably subject to debate. Yet it is not beyond dispute.

Moore never stated that his self-representation motion was

conditioned on the granting of a continuance. Initially, it

appears, Moore anticipated only a brief continuance, if any at

all, to enable him to locate and interview Mr. Jones. The need

for any significant continuance did not arise until the master

calendar judge drilled Moore on his lack of understanding of

basic legal principles. While the master calendar judge clearly

impressed upon Moore the degree of his inability to manage a

trial, the court never asked Moore whether he was willing to

proceed to trial that day if granted pro se status.

A46

never made such a finding. 28 U.S.C. § 2254(d)(1).

Moreover, nor did the state supreme court supply the missing

ingredient. The state supreme court did not make an independent

finding that Moore’s motive was to thwart the proceedings. 28

U.S.C. § 2254(d)(1). Instead, it found no more than that the

trial court was correct in its conclusion that delay would result

and that the attendant delay would inconvenience the courts and

prejudice the prosecution. Having noted, however, that the trial

court never made such a finding,™ the state appellate "finding"

cannot be said to be either an independent finding of dilatory

purpose nor can it be said to be “fairly supported by the

record." Parker v. Dugger, 498 U.S. 308, 320 (1991).”™

2. ## Even Assuming the State Supreme Court Made a

Finding of Intent to Delay, the Finding Would Not Be

Entitled to the Presumption on the State of This Record

Moreover, however, even if the state supreme court could be

said to have made a factual finding on Moore’s intent to delay,

Ninth Circuit precedent clearly establishes that, on the facts of

this case, this Court could not defer to that finding as

* When the trial court discussed the possibility of a

continuance, for example, it clearly did so in the context of

forewarning Moore that the risks encountered by proceeding pro se

included that he would be forced to start trial immediately. (IA

R.T. 30:15-32:2.) Moore never suggested that he was unwilling to

accept this as one of the drawbacks of self-representation. The

court never suggested that Moore’s desire for a continuance would

itself be a basis for denying his self-representation motion.

* Moreover, it is debatable whether the trial court hearing

was “full and fair" for purposes of the appellate court’s alleged

finding since the trial court never questioned the sincerity of

Moore’s reasons for the timing of his motion or whether they were

motivated by an intent to delay. Fritz, 682 F.2d at 785. 28

U.S.C. § 2254(d)(2), (6). Nor is it clear that the "material

facts were... adequately developed." Fritz, 682 F.2d at 785.

28 U.S.C. § 2254(d) (3).

presumptively correct. The Ninth Circuit’s leading case in this

area, Fritz, 682 F.2d 782, is clearly instructive.

As in Fritz, the only finding of dilatory purpose could have

come from the appellate court.” In Fritz, as here, such a

finding was not entitled to the statutory presumption of

correctness because the material facts were not fully developed

at the state trial court hearing and because the defendant was

not afforded a full and fair opportunity to develop those facts

at that hearing. A key consideration was that the trial court

never inquired into the topic:

Both the state presiding judge and the state trial judge

held hearings on Fritz’s motion to defend himself. Neither

judge made an express inquiry into Fritz’s purpose, however,

focusing instead on the nature of the Faretta right and on

Fritz’s ability to waive knowingly his right to counsel.

Fritz, 682 F.2d at 785.

The Ninth Circuit acknowledged that the trial court hearings

were not wasted efforts, but highly relevant on habeas -- albeit

not complete:

To be sure, much of the evidence adduced at the hearings

is pertinent to Fritz’s motivation. The evidence is

incomplete, however, and material facts -- such as when it

became clear that Fritz and [his attorney] had

irreconcilable differences, and whether Fritz had a bona

fide reason for not asserting his Faretta right before the

morning of trial -- were never developed.

Fritz, 682 F.2d at 785.

So too it is here. The trial court judges here never

expressly inquired into the reasons for the timing of Moore’s

motion. Further, unlike Fritz, the inferences from the facts are

not conflicting. Moore had not previously dismissed attorneys

“ Respondent tacitly concedes as much by not even arguing

that the trial court made the alleged finding of dilatory motive.

A48

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nor taken any other actions to impede the smooth progress of any

earlier trial dates. The Attorney General identifies nothing in

the circumstances surrounding Moore’s case that could justify an

inference that the motion was abusive other than the bare fact

that it was presented close to trial.“' The reasons for its

timing having been clearly justified and never having been

disputed by any court, the state court finding -- assuming for

the sake of argument that there was such a finding -- would not

be entitled to a presumption of correctness for an additional

reason: it would not be “fairly supported by the record." 28

U.S.C. § 2254(d) (8).

32. The Undisputed State of the Record Indicates that

Moore’s Motion Was Not Made for Purpose of Delay

Moreover, however, the state court analyzed only half of the

issue. While the state supreme court emphasized the Ninth

Circuit’s discussion of some of the factors that could support a

finding of dilatory purpose -- the proximity to trial, whether

delay would result, and prior dilatory conduct -- the state court

inexplicably overlooked the remainder of the federal analysis,

beginning with the very next sentence: “The inquiry, however,

“ The Attorney General briefly argues that Moore’s request

for a continuance in light of the prosecution’s witness problem

is strong indicia of a malevolent purpose. This is hollow

rhetoric. First, there is no — that, when Moore

originally wrote his letter somet before March 12, Moore had

any idea that the prosecution might incur witness problems if the

case were continued -- certainly none were indicated at the

previous hearings where Moore was present. Further, there is no

indication that, at the time Moore initially made his request, he

intended to seek any continuance whatsoever. Finally, absent a

showing of delay or an untimely request, the possibility that

witnesses might suffer some minor inconvenience is simply not a

factor in resolving whether a criminal defendant will be

permitted to go to trial with or without an attorney.

A49

does not stop there." Fritz, 682 F.2d at 784. The Ninth Circuit

explained, and the state supreme court failed to continue:

The court must also examine the events preceding the

motion, to determine whether they are consistent with a good

faith assertion of the Faretta right and whether the

defendant could reasonably be expected to have made the

» -tion at an earlier time.

Fritz, 682 F.2d at 784-85.

In this case, the “events preceding the motion" strongly

suggest a finding of good faith on the part of Moore in

interposing his self-representation motion.“ Although the

record could be supplemented to clarify the motivations and

factors existing at the time of Moore’s motion, the Attorney

General has affirmatively disavowed the need for an evidentiary

hearing. Further, the Attorney General has failed to identify

any additional facts that it would present at such a hearing if

given the opportunity to do so.”

“ Moore’s primary dispute focused on Slick’s degree of

preparation. Slick apparently did not discuss his preparation

and investigation until shortly before the March 5 conference.

Indeed, even at the March 16 hearing, when Slick stated that he

had conferred with Moore, Moore concurred but clarified that the

discussion was limited to one part of one witness’s testimony.

The trial court asked for no further clarification from Slick

about the degree of his conferences with Moore nor gave any

indication that it found Moore’s statement to be unbelievable.

“® Petitioner, by contrast, has specifically averred that he

could and would supplement the record to further bolster his

position on all unresolved factual issues. Fritz, 682 F.2d at

784-86. The Attorney General suggests that Keeney v. Tamayo-

Reyes, 112 S. Ct. 1715, bars an evidentiary hearing on this

claim. It is not entirely clear that this would be so. Tamayo-

Reyes held that, when a habeas petitioner actually had an

evidentiary hearing in state court and negligently failed to

submit critical evidence that was available at the time, he would

have to prove “cause and prejudice" before being entitled to an

evidentiary hearing under one of the six circumstances in which

, 372 U.S. 293, 313-18 (1963), held that a

hearing would be mandatory. Tamayo-Reyes, 112 S. Ct. at 1721.

(continued...)

ASO

D. The Self-Representation Motion Was Improperly Denied

The trial court offered several other miscellaneous reasons

allegedly justifying the denial of the motion. As explained

below, none are legally sound.

The trial court’s reference to “interfer[{ence}) with the

orderly administration of justice” is not supportable since the

record does not establish that a continuance would have been

absolutely necessary. At the outset of the hearing, the only

additional task Moore sought to perform was to have Mr. Jones

interviewed. Had Moore’s motion been addressed closer to the

time it was received it is entirely possible that no continuance

would have been requested but for the trial court’s persistence

in impressing upon Moore the degree of his unfamiliarity with the

adjudicatory process.“

Furthermore, once the trial court persuaded Moore that he

was not ready to begin trial immediately, the trial court never

“* (...continued)

It is far from clear that Moore’s failure to further develop

the reasons for the timing of his motion can properly be

criticized as “negligent.” Further, did not purport

to limit the five other situations in which an evidentiary

hearing is mandatory. Nor did Tamayo-Reyes to constrain

the instances in which the federal court could exercise its

discretion to hold a hearing. Most significantly, however,

Tamayo-Reyes never s ted that its “cause and prejudice"

standard would be applicable to situations where the issue was

not only not decided by the state tribunal, but had not even been

an issue in dispute.

“ This is not to say that the trial court erred in impressing

upon Moore the dangers of representing himself. To the contrary,

such information was crucial to ensuring that Moore’s waiver of

counsel was informed and intelligent. Faretta, 422 U.S. at 835.

United States v. Mohawk, 20 F.3d 1480, 1484-85 (9th Cir. 1994);

, 820 F.2d 1485, 1487 (9th Cir. 1987).

Rather, the crucial factor here is that Moore was not initially

seeking a continuance and, therefore, cannot be accused of having

interposed the motion for an ulterior purpose.

ASI

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inguired into how much time Moore envisioned in order to prepare

himself for trial. Certainly Moore would not have been entitled

to a continuance long enough for him to attend law school and

pass the bar. (IA R.T. 31:16-19.) The master calendar court

knew, however, that several motions would have to be heard before

trial and that the witnesses for those motions were not all

local. The judge, therefore, also knew that trial would not

start that same day nor, likely, within the next week. In light

of pending motions, had Moore requested only a week or a few days

to prepare for trial, it is unlikely that any continuance at all

would have been necessary. Moore likely would have been able to

be ready within the time already set for trial. The master

calendar judge, however, never asked.

Moreover, Moore never conditioned his self-representation

rights on the granting of a continuance; he only said that he was

not ready to begin trial “this afternoon." Although Moore had

expressed a desire for a continuance, he never suggested that he

desired to withdraw the pro se request if a continuance was not

to be granted. Since Moore was willing to accept pro se status

even if the trial were not continued beyond "this afternoon," the

trial court erred using Moore’s desire for a continuance as a

basis for denying Moore’s request to proceed pro se.

The master calendar judge’s reliance on Slick’s having

previously declared ready for trial is also an insufficient basis

for denying Moore’s motion. See Chapman, 553 F.2d at 894, cited

with approval by Maxwel], 673 F.2d at 1036; Fritz, 682 F.2d at

784.

To impute to Moore Slick’s declaration of “ready” during a

AS2

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conference that Slick had effectively prevented Moore from

attending and at a time when Slick knew that Moore disagreed with

his state of readiness and wished to discharge him is premised on

the "tenuous and unacceptable legal fiction” expressly criticized

by the Supreme Court. Faretta, 422 U.S. at 621.

The judge’s reliance on the state law speedy trial clock is

also unavailing. Although the hearing was held on the 54th of 60

allowable days, state law allowed the trial to commence up to 10

days thereafter. Cal. Pen. Code § 1382(b). The State thus had

sixteen days, not six, in which to bring Moore to trial. More

significantly, however, is that the speedy trial time is subject

to waiver by the defendant. There is nothing to suggest that the

State could not have conditioned an extended continuance on

Moore’s willingness to stipulate to the abeyance of the speedy

trial clock during the continuance.

Next, neither the trial court nor the Attorney General

identify anything unusual in coordinating the trial date with the

out-of-state witnesses other than the normal difficulties in

rearranging travel and vacation schedules. The Court has found

no decision holding that a defendant’s right to represeiit himself

can appropriately be conditioned on the convenience of witnesses’

vacation schedules. The defendant’s constitutional rights surely

must take precedence.”

“. wUnlike the California Court of Appeal case of Ruiz, there

is no allegation that Moore was threatening witnesses or hoping

to use the delay as a means of deterring witnesses from

testifying against him. Further, the prosecution’s expressed

concern of ~~ witnesses is beguiling. Having voluntarily

postponed the initial filing of the case for nearly five and a

half years and still having managed to maintain control over its

(continued...)

AS3

The final reason given by the master calendar judge was that

Moore was “unwilling” to proceed to trial that day. Regardless

of the accuracy of this finding, it is a classic red herring.

The trial was not expected to start “that afternoon." Indeed,

not even the prosecutor was ready to start that day -- he had

already announced a need for “one or two days lead time" to have

the out-of-state witnesses to come in for pre-trial motions.

Moreover, a defendant’s inability to commence trial proceedings

immediately $s take without more, a basis for denying a request

to proceed pro se. Armant, 772 F.2d at 554-58; Fritz, 682 F.2d

at 784-85.

E. Conclusion

Moore’s motion for self-representation satisfied all the

requirements entitling him to permission to represent himself.

Improperly forcing counsel on a defendant against his will is

structural error and, therefore, “not amenable to harmless error

analysis.” Arlt, 41 F.3d at 524, quoting Adams, 875 F.2d at 1445.

Peters, 33 F.3d at 1193. "The improper denial of this right [to

represent oneself) is ‘per se prejudicial error’ and thus

requires automatic reversal of a criminal conviction." Arlt, 41

F.3d at 524, citing Savage, 924 F.2d at 1466.“

“* (...continued)

witnesses for an additional year, there is no credible suggestion

that the district attorney could not have weathered a few

additional weeks in order to allow Moore to prepare for a trial

at res he would present his own defenses, not those developed

by Slick.

“ The Attorney General suggests that, if the writ is granted

on this claim, the appropriate remedy should be to force Moore to

proceed pro ge at any retrial. Contrary to the Attorney

General’s insinuations, this is inconsistent with Moore’s request

(continued...)

AS4

~ SPIN, OOS EE —

VI. The Mid-Trial Motion to Discharge Slick and Proceed Pro 6e

Moore’s final claim under submission challenges the trial

court’s denial of permission to discharge Slick and proceed pro

se beginning with the defense closing argument. The Attorney

General presents two defenses -- that, as a mid-trial motion, it

was untimely and that, on the merits, the trial judge acted

within his discretion.

A. Scope of the Substantive Right Involved

The parties both treat this claim as a genuine dispute over

the scope of a criminal defendant’s self-representation rights.

Moore styles his claim as a denial of his right to represent

himself. The trial judge recognized the motion as such. The

Attorney General does not contend that this is simply a disguised

request designed to circumvent the general rule that represented

defendants need not be granted the right to address the jury.

E.g. United States v. Dellinger, 472 F.2d 340, 408 (7th Cir.

1972), cert. denied, 410 U.S. 970 (1973).

“ (...continued)

to the trial court. While Moore plainly expressed that, in

entire scheme of things, he would prefer to be represented by a

lawyer, he was also very clear that "(i)f the court would not

order substitute counsel, he wished to represent himself." Adams,

875 F.2d at 1445. The condition suggested by the Attorney

General would thus only be relevant if the trial court were to

appoint Slick as defense counsel for any retrial.

In light of their previous conflicts and the results of the

trial, after reviewing the vigorous pleas by Moore to proceed

without Slick despite the overwhelming obstacles, there is little

doubt that if required to make the choice, Moore would again opt

to proceed pro se rather than be represented by Slick. This,

however, is a choice that need be made only if Slick is again

appointed defense counsel. If the situation arises, Moore will

have to make the choice voluntarily and intelligently, fully

informed of the consequences of his actions. Faretta, 422 U.S. at

835, Mohawk, 20 F.3d at 1484. This is not a decision that can or

should be thrust upon him without a hearing.

ASS

In support of his claim, Moore relies heavily on an

observation included in the Faretta opinion itself. In

appraising the very existence of a right of self-representation,

the Supreme Court pointed out its previous implicit recognition

of such a right. The Court in Faretta observed that, in Snyder’s

discussion of the importance of the defendant’s right to be

present in the courtroom, the Court remarked:

(T)he “defense may be made easier if the accused is

permitted to be present at... the summing up of counsel,

for it wil) be in his power, if present, to give advice wor

’ suggestion or sven_to-supsrsede his lavvers altogether and

Faretta, 422 U.S. at 816 (emphasis in original) (quoting Snyder,

291 U.S. at 106).

Based on this excerpt from Faretta, Moore argues that he had

an unconditional right to represent himself at closing argument

and that the trial court’s denial of this motion violated this

constitutional right.”

B. The Claim Cannot Be Denied on the Basis of Timeliness

“ While the parties discuss other cases, the "right" involved

truly emanates from Faretta and nowhere else.

cases do address the contours of a criminal defendant’s right to

present closing argument, none of them do so in the context of

request for self-representation. Rather, the cases either

involve situations where the defendant was represented by

counsel, did not want to waive counsel, and requested "hybrid"

co-counsel status for closing argument, e.g. Dellinger, 472 F.2d

at 408, or involved situations where the trial court actually

permitted the defendant to present closing argument and the

issues on appeal were whether the partial waiver of counsel was

knowing and voluntary, e.g. + 273 F.2d 10,

ll-12 (9th Cir. 1959), cert. denied, 362 U.S. 982 (1960).

A different situation arises when the defendant did not

testify and is seeking to use closing argument as an attempt to

present evidence to the jury without being under oath or subject

to cross-examination. Bassette v. Thompson, 915 F.2d 932, 941

(4th Cir. 1990), cert. denied, 499 U.S. 982 (1991); United States

v. Tucker, 773 F.2d 136, 141 (7th Cir. 1985), cert. denied, 478

U.S. 1022 (1986).

AS6

While a handful of.

a en a a

ie)

The Attorney General’s first defense rests on the principle

recognized in virtually all jurisdictions -- that a self-

representation motion is generally untimely if not asserted until

mid-trial. Smith, 780 F.2d at 811-12.

While the general rule that mid-trial requests are untimely

may appear to conflict with the language from Faretta quoted

above, id., 422 U.S. at 816, the two need not be harmonized here.

The timeliness of Moore’s second request to represent himself

“did not underlie the district court’s exercise of its discretion

to deny the motion, and thus we do not find it dispositive of

this issue." Walker, 915 F.2d at 483. Accord Price, 474 F.2d at

1227, Peters, 33 F.3d at 1192. Further, “[(t)jhe record contains

no hint that the motion was a tactic to secure delay, and there

is nothing that suggests that any delay would have attended the

granting of the motion." Price, 474 F.2d at 1227.*

“ As observed by the Fifth Circuit, the propriety of

demarcating self-representation requests by reliance on whether

the trial has commenced is not beyond reproach:

Faretta casts doubt on the practice of characterizing the

pro se right as unqualified before trial but committed to

the discretion of the court thereafter. United States v.

Garcia, 517 F.2d 272, 277 n.4 (Sth Cir. 1975), has been read

to suggest that Faretta may have “eroded” earlier decisions

that relied on this distinction between pre- and mid-trial

assertion of the right.

Chapman, 553 F.2d at 893 (citations and footnote omitted). Accord

Barnes, 258 Ark. at 570-71. Nonetheless, the distinction is

adhered to by the Ninth Circuit and, therefore, binding on this

Court. Smith, 780 F.2d at 811-12.

The holding in Smith is, of course, distinguishable in

numerous respects. If nothing else, the holding was impacted by

the fact that not only was the motion not raised before trial,

but it had not even been raised at the defendant’s first

opportunity to do so: “the request, made half-way through trial,

was not timely because it was based on matters that occurred

prior to trial." Smith, 780 F.2d at 812.

(continued...)

AS7

Cc. The Trial Court Failed to Consider the Relevant Factors

for Exercising its Discretion

Even if the motion were considered untimely, however, the

result is that the right is subject to the exercise of the trial

court’s discretion in light of various factors -- the need to

minimize disruptions, considerations of convenience and delay,

maintaining continuity and the ongoing flow of trial proceedings,

avoiding jury confusion, and the defendant’s reasons for the

timing of the request and the reasons for the request itself.

United States vy. Matsushita, 794 F.2d 46, 51 (2d Cir. 1986);

United States v. Dunlap, 577 F.2d 867, 868 (4th Cir.), cert.

denied, 439 U.S. 858 (1978); United States v. Tucker, 773 F.2d

136, 141 (7th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

The California Supreme Court has identified these same factors as

the appropriate guide for the trial court. Windham, 19 Cal. 34a

at 128-29. On one significant point there is no dispute: the

“ (...continued)

Here, by contrast, while Moore was clearly disillusioned

with Slick prior to trial, he raised those concerns forthwith.

His motion was denied. Moore renewed his request to represent

himself beginning with closing argument upon learning -- in the

middle of trial -- that Slick had no intention of highlighting a

significant number of inconsistencies in the prosecution’s key

witness’s testimony. Unlike the defendant in Smith, it is not

reasonably probable that Moore could have raised these additional

concerns any earlier.

Nor was this a situation where “the trial (which was already

underway) would need to be continued if the request were

granted." Id., 780 F.2d at 812. Moore emphasized that he was

ready to proceed with closing argument forthwith. There is no

contention that delay was either intended or would result.

Finally, also unlike Smith, it is not at all clear that

Moore can properly be penalized for having made a mid-trial

request when all his earlier requests had in fact been denied.

Unlike Smith, Moore’s first assertion of the right of self-

representation was not during the middle of trial, but well

before the beginning of the actual trial. His second assertion

of his self-representation rights -- the one made during trial --

was based on events that had transpired during trial.

AS8

ete ae haa

trial court failed to consider any of these factors.

Moore had substantial and legitimate reasons for requesting

pro se status. The essence of the prosecution’s case was that

Moore developed the plan to go to the Crumb’s apartment to steal

their recently-collected rent receipts and that, after the

robbery, the Crumbs would be killed. The prosecution contended

that Moore, his co-defendant Lee Harris, and the immunized

accomplice Avery went to the Crumb’s apartment, stole money and

jewelry and, while there, Moore personally killed the Crumbs.

Moore was a former tenant of the building and admitted that

he had devised the plan to rob the Crumbs. He testified,

however, that he did not participate in the robbery and that

murder was never part of the plan. According to Moore, earlier

on the day of the killings, he went by the apartment building

with Avery and Harris and told them how they could enter. He

specifically did not go with Avery and Harris that evening

because he knew that the Crumbs would recognize him. This was

arguably corroborated by the testimony of Mr. Jones, who is the

person that enabled Avery and Harris to enter. Jones stated that

he knew Moore, would have recognized Moore, and did not see Moore

at the apartment building that night.

Moore’s explanation was no great testament to his moral

fiber and could have amply supported convictions for the

burglary, robbery, and possibly also felony-murder. Nonetheless,

if the jury believed his version of events -- or at least had a

reasonable doubt as to the prosecution’s theory -- it could not

have found that the special circumstances were true, which

required that Moore participated in the killings or intended for

AS9

the Crumbs to be killed. Without the special circumstances,

Moore was ineligible for the death penalty.

As plainly recognized by both the prosecuting attorney and

the California Supreme Court, the case against Moore rested

entirely on the jury’s perception of Terry Avery, the immunized

accomplice who was the prosecution’s key witness. The district

attorney conceded during closing argument to the jury, "Terry

Eiaine Avery [is) the key to this case because she’s the key to

the special circumstances, who was present, who was there and

actively committed the crimes, no question." On appeal, the

state supreme court concurred, opening its discussion of the

guilt phase evidence by remarking "The case against defendant was

based almost entirely on the testimony of Terry Avery, who was

granted immunity from prosecution in exchange for her testimony."

Moore, 47 Cal. 3d at 71.

As to the dispute over closing argument, Moore’s initial

disagreement with Slick arose when Slick refused to present any

evidence or argument at all. After further discussion, however,

Slick acquiesced. When Moore withdrew his request to discharge

Slick, Moore clearly stated that he was doing so based on his

understanding that Slick had promised to point out, during

closing argument, the inconsistencies in Avery’s testimony.

After the prosecution had delivered a substantial portion of

its opening argument, Moore and Slick again discussed the

substance of the defense closing. The relationship again began

to falter. Because the essence of the defense was that Moore was

not present, Slick proposed focusing on the inconsistencies in

Avery’s testimony relating to whether Moore was, or could have

A60

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been, present. While Moore agreed that Slick’s focus was valid

and one which he wanted highlighted to the jury, Moore felt that

the challenge to Avery should be much more broadly based -- to

wit, that Avery was an entirely unreliable witness.

Moore wanted the jury to be reminded that not only was

Avery’s testimony inconsistent with the physical evidence and

conflicting as to Moore’s presence, but that Avery’s testimony

was inconsistent in many other respects as well. One of the most

significant arguments raised by Moore related to the

prosecution’s emphasis during summation on Avery’s testimony that

she had “turned herself in." Moore wanted the jury reminded,

however, that law enforcement testimony clearly indicated that

Avery had in fact been turned in involuntarily by her mother.

Throughout its colloquy with Moore, the trial judge

repeatedly confirmed that Moore’s proposed arguments were

legitimate, but expressed confidence that those arguments would

likely be presented by Slick. Each time, Moore confirmed that

Slick did not intend to make the arguments that Moore was

proposing. In case Moore was not sufficiently clear, Slick

removed any residual doubt: "There are some inconsistencies Mr.

Moore just mentioned that I do not intend to argue. ... [{q]) I

don’t want to distract this jury by talking about things that I

don’t feel are germane to his guilt or innocence of the special

circumstances and I’1ll not do so."”

“ It is not disputed that “appointed counsel, and not his

client, is in charge of the choice of trial tactics and the

theory of defense." , 830 F.2d 1500,

United States v. Wadsworth

1509 (9th Cir. 1987) (citing Henry v. Mississippi, 379 U.S. 443,

451 (1965)). Contrary to the Attorney General’s suggestion,

(continued...)

Aél

This was no small dispute. In a case decided only months

before the events at issue, the Supreme Court affirmed that

The Counsel Clause itself, which permits the accused "to

have the Assistance of Counsel for his defense," implies a

right in the defendant to conduct his own defense, with

assistance at what, after all, is his, not counsel’s trial.

McKaskle, 465 U.S. at 174 (emphasis original).

Moore echoed these concerns in arguing to the trial judge:

{I}f Ron Slick is wrong in his arguments, his arguments

don’t prove to be successful to the jury, he’s not going on

death row, I am. He’s not going to get a life sentence, I

am. It is my life I am fighting for.

Moore’s request to proceed pro se for closing arguments

cannot be derided as involving only an insubstantial part of the

trial. As the Supreme Court observed in a case decided the same

day as Faretta, “(t)jhere can be no doubt that closing argument

for the defense is a basic element of the adversary fact-finding

process in a criminal trial." Herring v. New York, 422 U.S. 853,

858 (1975).

The other relevant factors also favored Moore. The timing

of Moore’s motion was justified since it was prompted by

information that he learned during the middle of trial and

reasonably could not have known prior thereto. Furthermore, all

“* (...continued)

however, the issue here is not whether Slick’s choice of topics

for argument was within the realm of professionally reasonable

judgment. The instant claim does not charge that Slick’s closing

argument was itself constitutionally deficient. Cf. Wade v.

Calderon, 29 F.3d 1312, 1324-25 (9th Cir. 1994), cert. denied,

115 S.Ct. 923 (1995). Nor does Moore argue that he had a righ

to control the topics addressed by trial counsel during closing

argument. Rather, he argues, that Slick’s proposed argument was

“not the defense guaranteed him by the Constitution, for ... it

was not his defense." fFaretta, 422 U.S. at 821. Moore felt so

strongly about this that he was willing to waive his right to

counsel and represent himself for the remainder of trial.

A62

indications in the record suggest that Moore was a cooperative

and respectful litigant. Allowing him to represent himself

beginning with closing argument would not have created any

disruption. Nor would granting the request have caused

inconvenience, delay, or interfered with the flow of the trial.

Moore clearly enunciated the topics he wanted to cover in closing

arguments and confirmed that he was ready to proceed forthwith.

At least in the context of this case, where Moore himself

had actually taken the stand and testified and was subjected to

cross-examination, allowing Moore to deliver closing argument

would have resulted in no more jury confusion than would any

other case involving a pro se litigant. Indeed, probably less

so. When the trial judge cautioned Moore that he would not be

allowed to present additional evidence during closing argument

and would be limited to the evidence in the record, Moore

expressly acknowledged this limitation, identified the topics he

proposed to argue, and clearly explained how those matters were

already established in the record.

The trial judge failed to consider the factors that it was

required to rely upon in guiding its discretion. Had it

considered “nose factors, it would have been compelled to

conclude that Moore’s request should be granted.

DR. Conclusion

The error in denying Moore the right to represent himself

beginning at defense closing argument was reversible per se. See

supra Section V(E).

///

4//

A63

ORDER

IT I8 HEREBY ORDERED that Petitioner’s motion for summary

judgment be, and hereby is, GRANTED as to Claims A and C; to wit,

Petitioner’s motions to proceed pro se prior to jury empanelment,

and prior to closing argument, respectively.

IT IS FURTHER ORDERED that Petitioner’s motion for summary

adjudication be, and hereby is, DENIED, and the following issues

are hereby summarily adjudicated on the Cowr’t’s own motion:

(1) Moore’s exclusion from the March 5 and March 9

hearings did not deprive him of due process,

(2) The trial court conducted a sufficient inquiry on

Moore’s motion for substitution of counsel,

(3) The trial court did not prejudicially err in denying

Moore’s motion for second counsel, and

(4) Moore’s claim that the trial court unconstitutionally

denied him co-counsel status or appointment of advisory

counsel is barred under the retroactivity doctrine of Teague

v. Lane, 489 U.S. 288 (1989) (plurality).

IT I8 FURTHER ORDERED that Petitioner’s motion for summary

judgment be, and hereby is, DENIED as to Claim B; to wit, that

the trial court improperly denied his motion for substitution of

counsel.

IT IS FURTHER ORDERED that Respondent’s motion for summary

judgment be, and hereby is, DENIED as moot.

IT I8 FURTHER ORDERED that Moore’s petition for writ of

habeas corpus be, and hereby is, GRANTED and that the judgment of

conviction and sentence of death in this case be VACATED AND SET

ASIDE, as are any proceedings related to carrying out that

Ab4

ie led eee

A eer

——- wee eee

judgment. Respondent shall release Moore from custody after the

expiration of 60 days unless, within 60 days hereof, the State of

California grants Moore the right to a new trial on all guilt,

special circumstance, and penalty issues in accordance with

applicable California law and the United States Constitution.

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