# Opposition Brief — Calderon v. Moore > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0712%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 1996 - **Citation:** 518 U.S. 149 ## Text ORIGINAL 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, CW Morgan Chu Counsel of Record Brian Pass Spencer E. Bendell IRELL & MANELLA LLP MARIANNE D. BACHERS Attorneys for Respondent ae a eee = “a0 enna - i — 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 * * * * * * * . * . . * . . . A. B. REASONS WHY A. 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 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 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 10 12 15 19 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- ee 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 Al 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. A2 > «¢. &. @ 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). 3 A3 ~_ o @ 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 4 A4 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. 5 AS 27 28 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 6 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 7 A7 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). A9 i i aS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 10 Ald 2 = 05 nes oe > & €©€ &>-e 8 FF Be & ~ »-» » vy YY Oo 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. 11 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 12 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 13 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. 14 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 15 Al5S nu ee Be SS eS es 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 16 Al6 27 28 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 17 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 © This particular complaint is similar to the situation 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. 18 Al8 27 28 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...) 19 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. 20 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 21 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. 22 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: 23 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 24 A24 ee 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). 25 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 oso ov awe wiN e YY ~-» +e ee ee ee ea 28 & vee © 17 18 19 20 21 22 23 24 25 26 27 28 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). 27 A27 27 28 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. 28 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). 20 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 : 30 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.) 31 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. 32 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 33 A33 “~ Of YW & 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 34 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. 35 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 36 A36 ae ee ae ae a. 2 oe ee -~ »- v + o ~ w 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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 37 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...) 38 A38 o ovawees www » ~ » nv + Oo ~ w 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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...) 39 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)). 40 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...) 41 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...) 42 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. 43 A43 o owen we Ww WN ~ ~- oO ~ N 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. as Ad 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...) 45 A45 “v Oo WY & o @ 10 11 12 13 14 15 16 17 i8 19 20 21 22 23 24 25 26 27 28 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 wo [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385013_0712%3A2. Public record. Not legal advice.