Appendix — Calderon v. Moore
Supreme Court brief1997
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pprice OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
OCTOBER TERM, 1996
ARTHUR CALDERON, Warden, Petitioner,
v.
CHARLES EDWARD MOORE, JR., Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
APPENDICES TO PETITION FOR WRIT OF CERTIORARI
DANIEL E. LUNGREN
Attorney General
GEORGE WILLIAMSON
Chief Assistant Attorney General
RONALD A. BASS
Senior Assistant Attorney General
MORRIS BEATUS
Deputy Attorney General
PEGGY S. RUFFRA
Deputy Attorney General
Counsel of Record
50 Fremont St., Room 300
San Francisco, CA 94105
Telephone: (415) 356-6142
Counsel for Petitioner
APPENDIX A
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES EDWARD MOORE, JR., _ )
Petitioner-Appellee- ) Nos. 95-99009
Cross-Appellant, ) 95-99013
)
V. ) D.C. No.
) CV-91-05976-KN
ARTHUR CALDERON, Warden, )
Respondent-Appellant- ) OPINION
Cross-Appellee. )
)
ON REMAND FROM THE
SUPREME COURT OF THE UNITED STATES
Appeals from the United States District Court
for the Central District of California
David V. Kenyon, District Judge, Presiding
Argued and Submitted
January 16, 1997 -- Pasadena, California
Filed March 7, 1997
Before: Warren J. Ferguson,
Diarmuid F. O’Scannlain, and
Ferdinand F. Fernandez, Circuit Judges.
Opinion by Judge O’Scannlain;
Concurrence by Judge Ferguson
y a
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether a writ of habeas corpus
should issue when a state court denies a murder defendant’s
request to proceed pro se weeks before the trial begins.
I.
Charles Edward Moore, Jr. was charged with the
double murder of Robert and Hattie Crumb. On July 22,
1983, the California Superior Court, where Moore’s case
was to be tried, appointed an attorney to represent Moore.
The case was set for trial on March 5, 1984. On that date,
the prosecutor and defense counsel appeared before the
Master Calendar Court and asked for a continuance, which
the court granted until March 9, 1984. Moore was not
present in the courtroom. On March 9, the case was
continued to March 16, 1984. Again, Moore was not
present.
In a letter to the court dated March 10, 1984,
Moore explained that, contrary to his requests, he had not
been brought into the courtroom on the two previous trial
dates, that he had doubts about his court-appointed lawyer,
and that he wanted the court to "appoint me co counsel [sic]
with another lawyer or allow me to go pro per, which is my
constitutional right of ‘self representation’ under the Sixth
Amendment." When he appeared before the Master
Calendar Court on March 16, the court engaged in a lengthy
discussion with Moore -- much of it out of the presence of
the prosecution -- about his dissatisfaction with his lawyer
and his desire to represent himself, to have co-counsel or
advisory counsel appointed, or to have a second lawyer
appointed. At the conclusion of the colloquy, the judge
denied Moore’s requests for co-counsel, advisory counsel, or
a second lawyer, but did not rule on the self-representation
request.
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3.
Moore appeared before the court again on March
19, and the judge again engaged Moore in a colloquy about
his self-representation request. Moore stated that, in order
to represent himself, he would need a continuance to prepare
for trial. The prosecution explained that, although it had no
objection to Moore’s request, delaying the trial would
impose a hardship on the prosecution and on the numerous
out-of-state witnesses who had planned to be present for
trial. The court then denied Moore’s request to represent
himself, stating that it would “interfere with the orderly
administration of justice to continue his case" because a
courtroom was waiting to begin Moore’s trial. The court
also noted that witnesses would be inconvenienced, and that
Moore’s attorney was ready to proceed.
The court transferred Moore’s case to another
courtroom for the disposition of other pending pretrial
motions. Those motions occupied another week. The trial
did not commence until March 26 -- over two weeks after
Moore made his request to proceed pro se.
At the conclusion of the trial, the jury found Moore
guilty of the murders of Robert and Hattie Crumb, and
Moore was sentenced to death. The California Supreme
Court affirmed the judgment on direct appeal, People v.
Moore, 762 P.2d 1218 (Cal. 1988), and eventually denied a
total of eight habeas petitions.
In 1991, Moore filed this habeas petition in the
district court, presenting twenty-seven claims. After
granting a stay of execution, the district court entertained a
motion to dismiss some of Moore’s claims for failure to
exhaust, which it eventually denied. In 1993, the court
noted that summary judgment might be appropriate on some
of Moore’s claims. Thus, in May 1994, Moore moved for
summary judgment on three claim of his petition, and
California cross-moved for summary judgment on other of
Moore’s claims. In 1995, the district court granted summary
judgment in favor of Moore on two of his claims (involving
his pre-trial and mid-trial requests to proceed pro se), and
summarily adjudicated a number of other claims in favor of
4.
California. On that basis, the court granted Moore’s petition
for the writ, ordering that Moore either be retried within 60
days or be released. California appealed from that decision,
and Moore cross-appealed from the district court’s denial of
his other claims.
California promptly moved the district court for a
stay pending appeal, which it denied. Our court, Moore v.
Calderon 56 F.3d 39 (9th Cir. 1995), and Justice O’Connor
in her capacity as Circuit Justice for the Ninth Circuit,
Calderon v. Moore, No. A-910 (June 9, 1995) (unpublished
order), denied subsequent requests for a stay pending appeal.
Thereafter, California granted Moore a new trial, which
prompted us to dismiss this case as moot. The Supreme
Court reversed and remanded. Calderon v. Moore,
__U _, 116 S.Ct. 2066 (1996). After we heard
argument on the merits, the Supreme Court granted a stay
pending disposition of these appeals. Calderon v. Moore,
No. A-577 (February 20, 1997) (unpublished order). We
now turn to the merits of these appeals.
Il.
The Antiterrorism and Effective Death Penalty Act
of 1996 ("AEDPA") worked substantial changes to the law
of habeas corpus. Of specific relevance to this appeal are
the changes to 28 U.S.C. § 2254(d), which now reads:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the
merits in State court proceedings unless the
adjudication of the claim --
(1) resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the
Supreme Court of the Unite States; or
a
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light of
the evidence presented in the State court
proceeding.
California claims that the 1996 amendment should
apply to this case, which was pending when the legislation
was enacted.
Our court, sitting en banc, has ruled that the
amendments do not apply to pending cases. Jeffries v.
Wood, 103 F.3d 827 (9th Cir. 1996). The Supreme Court,
however, has granted certiorari in a case which will be
argued in the October 1996 Term to address this question.
Lindh v. Murphy, 96 F.3d 856 (7th Cir. 1996), cert.
granted, 117 S.Ct. 726 (1997). Regardless of the resolution
of the retroactivity issue, however, we are persuaded that,
under either version of § 2254(d), Moore is entitled to the
writ. See Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir.
1996) (resolving merits under current and prior versions of
§ 2254); Berryman v. Morton, 100 F.3d 1089, 1104 (3d Cir.
1996) (same); Ayala v. Speckard, 89 F.3d 91, 96-97 (2d Cir.
1996) (same), amended on other grounds, 102 F.3d 649 (2d
Cir. 1996).
6.
II.
Under the old version of § 2254(d), we look, to the
decisions of the Supreme Court and of this Court in deciding
whether a writ should issue. In Faretta v. California, 422
U.S. 806 (1975), the Supreme Court held that the Sixth
Amendment right to assistance of counsel included a right to
represent oneself.’ Our court has since added a gloss to
Faretta establishing a bright-line rule for the timeliness of
Faretta requests: a request is timely if made before the jury
is empaneled, unless it is shown to be a tactic to secure
delay. Savage v. Estelle, 924 F.2d 1459, 1463 n.7 (9th
Cir.), cert. denied, 501 U.S. 1255 (1991); United States v.
Smith, 780 F.2d 810, 811 (9th Cir. 1986); Armant v.
Marquez, 772 F.2d 552, 555-56 (9th Cir. 1985), cert.
denied, 475 U.S. 1099 (1986); Fritz v. Spalding, 682 F.2d
782, 784 (9th Cir. 1982)
Under the old version of § 2254(d), these cases
establishing a "jury empanelment" rule for timeliness compel
our decision here. The jury was not empaneled when Moore
made his request. Furthermore, the trial court made no
finding that Moore’s request was a tactic for delay, and the
ecord does not suggest that it was such a tactic. Thus,
under our case law, Moore’s request was timely, and he is
entitled to the writ.
California’s argument that habeas relief is barred
by Teague v. Lane, 489 U.S. 288 (1989), has no merit. "In
Teague, the Court held that new constitutional rules of
criminal procedure may not be applied retroactively to cases
for which direct review had been completed prior to the
decision creating the new rule." Campbell v. Wood, 18 F.3d
662, 676 (9th Cir. 1994). Although our "jury empanelment"
rule for the timeliness of Faretta motions might have been a
"new rule" when it was announced in 1982, see Fritz, 682
F.2d at 784; Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th
1. The Sixth Amendment provides: "In all criminal prosecutions,
the accused shall enjoy the right . . . to have the Assistance of Counsel
for his defence." U.S. Const. amend. VI.
a
vi
Cir.), cert. denied, 459 U.S. 976 (1982), it is not a new rule
for Moore because it was announced before his conviction
became final. (Indeed, it was announced before Moore was
tried and convicted.) Teague does not bar relief for
Moore.”
California also contends that the timeliness of a
Faretta request is not a federal constitutional question, but
rather a question of state procedural law. Since federal
habeas relief must be based on a violation of federal law,
California contends that the district court erred by issuing the
writ when a state law question was involved. In at least two
cases, however, we have granted the writ when a California
court failed to follow the "jury empanelment" rule. Armant,
772 F.2d at 558; Maxwell, 673 F.2d at 1036. We could not
have granted relief in those cases unless the timeliness of a
Faretta request is a matter of federal constitutional law.
We are bound by Armant and Maxwell, and reject
California’s argument.
IV.
Section 2254(d), as amended, prohibits issuing the
writ unless the State court decision "was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1). A state court
decision may not be overturned on habeas review, for
example, because of a conflict with Ninth Circuit-based law,
but rather a writ may issue only when the state court
decision is "contrary to, or involved an unreasonable of," an
authoritative decision of the Supreme Court. Childress v.
Johnson, _F.3d___, 1997 WL 8836, *3-4 (Sth Cir. 1997);
Devlin v. DeTella, 101 F.3d 1206, 1208 (7th Cir. 1996); see
Baylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996).
2. Moreover, as we decide below, Moore is entitled to relief on the
basis of Faretta alone.
8.
The only Supreme Court decision to discuss the
timeliness of a request to proceed pro se is the Faretta
decision itself. Our first inquiry is thus whether Faretta
"clearly established" a rule of law regarding the timeliness
of a request. In Faretta, the Court twice described the
timing of Faretta’s request to represent himself: it was made
"weeks before trial," 422 U.S. at 835, and "well before the
date of trial, id. at 807. The Court’s acknowledgment of the
timing of Faretta’s request was neither a recitation of the
background facts of the case nor obiter dictum; instead, it is
mentioned not only in the opening paragraphs, but also in
the very breath with which the Court announced its decision.
Id. at 835. It is properly considered necessary to the Court’s
decision, and therefore is a holding of the Court. See Export
Group v. Reef Industries, Inc., 54 F.3d 1466, 1472 (9th Cir.
1995). As such, it is "clearly established Federal law, as
determined by the Supreme Court of the United States."
If the state court decision in this case was
"contrary to" the Federal law clearly established by Faretta,
then the writ may properly be granted.’ Indeed, the
relevant facts in this case are identical to those in Faretta.
Like Faretta, Moore made his reauest "weeks before trial."
It is undisputed that Moore’s waiver of his right to counsel
was knowing and intelligent. By failing to grant Moore’s
timely request, the trial court abridged Moore’s right to self-
representation under the Sixth Amendment. The writ of
habeas corpus should issue.
3. The timeliness of a Faretta request is a question of law. Armant,
772 F.2d at 556. Since the "contrary to" language governs questions of
law, and the “unreasonable application of" language governs mixed
questions of law, and fact, we apply only the "contrary to" language.
Accord Drinkard v. Johnson, 97 F.3d 751, 767 (Sth Cir. 1996); Lindh
v. Murphy, 96 F.3d 856, 870 (7th Cir. 1996), cert. granted, 117 S.Ct.
726 (1997).
9.
7.
Because we affirm the district court’s issuance of
the writ based on Moore’s pretrial request to proceed pro se,
we do not reach Moore’s additional contentions. Except as
ordered by the United States Supreme Court, the renewed
motion currently pending before this court for a stay of the
district court’s order is DENIED as moot. The district
court’s decision granting the writ to Moore is AFFIRMED.
FERGUSON, Circuit Judge concurring.
I am please to concur in Judge O’Scannilain’s
concise and precise opinion.
I write only to explain that while courts of appeal
have adopted a timely requirement to a Faretta motion, the
Supreme Court did not make the constitutional right of self
representation subject to any conditions except knowledge
and intelligence.
The Court did not require that the right be
exercised before trial. During the course of a trial, counsel
may become incapable for many reasons -- injury,
disbarment, misconduct. For any number of reasons a
defendant in that instance may not want a mistrial -- he
perceives that the trial has proceeded in his favor and doesn’t
want the prosecution to start all over again with rehabilitated
witnesses. He may want to represent himself during the
balance of the trial. Faretta grants him that right.
10.
APPENDIX B
FILED MARCH 31, 1995
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CHARLES EDWARD MOORE, JR.,
Petitioner,
Vv.
ARTHUR CALDERON, Warden,
Respondent.
/
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 judgment in favor of Moore, he
does not suggest that any factual issues are in dispute,”
confining his argument to questions of law. Thus, although
the parties disagree as to some of the inferences to be drawn,
they do not dispute the underlying facts.
1. There is, for example, no statement of genuine issues as requried
by Local Rule 7.14.2.
11.
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.
6-3, 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 Cit. 1975);
Hotel del Coronado Corp. v. Foodservice Equip. 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. Cool Fuel, Inc. v.
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.
3. 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 Case, but such
treatment would be plainly inappropriate in this case. Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
12.
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 retroactivity concerns. “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 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 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.
13.
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 forces
a new rule." Wright v. West, 112 S.Ct. 2482, 2499 (1992)
(Kennedy, J., concurring). The right to be present at “all
critical stages of the proceedings" is just such a rule of
general application. To accept Respondent’s construction of
Teague would improperly abdicate this Court’s duty to
review de novo questions of law and mixed questions of fact
and law and virtually eviscerate habeas review. Shiro v.
Farley, 114 S.Ct. 783, 790 (1994); Cuyler v. Sullivan, 446
U.S. 335, 342 (1980).
B. Application of Moore’s Right to be Present
The right to be present extends to all "critical
stages of the proceedings." As more recently explained in
Kentucky v. Stincer, 482 U.S 730 (1987), which, it is noted
parenthetically, was also decided before Moore’s judgment
became final:
Although the Court has emphasized that this
privilege of presence is not guaranteed "when
presence would be useless, or the benefit but a
mere shadow," due process clearly requires that a
defendant be allowed to be present "to the extent
that a fair and just hearing would be thwarted by
his absence." Thus, a defendant is guaranteed the
right to be present at any stage of the criminal
proceeding that is critical to its outcome if his
presence would contribute to the fairness of the
procedure.
Stincer, 482 U.S. at 745 (internal citations omitted) (quoting
Snyder, 291 U.S. at 106-07, 108).
Judicial analysis has "“emphasize[d] . . . the
particular nature of the . . . hearing" at issue, paying close
attention to the potential benefit to the defendant that could
be gained by his personal presence. Stincer, 482 U.S. at
14.
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." Jd., 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 approaches the issue with post hoc omniscience.
Whether the defendant has a right to be present ai a
particular proceeding significantly depends upon "the
particular nature of the . . . hearing" and the benefits that
could be gained by the defendants 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
4. Accord Snyder, 291 U.S. at 108; United States v. Veatch, 674
F.2 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.
5. Slick 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.
15.
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 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 v. Rushen, 686 F.2d 826, 829 (9th
Cir. 1982), cert. denied, 461 U.S. 916 (1983).
16.
The trial court’s ruling, however, will only be set
aside for an abuse of discretion. As the Ninth Circuit
explained:
When reviewing the denial of a motion to
substitute counsel for abuse of discretion, we
consider the following three factors: "(1)
timeliness of the motion; (2) adequacy of the
court’s inquiry into the defendant’s complaint; and
(3) whether the conflict between the defendant and
his attorney was so great that it resulted in a total
lack of communication preventing an adequate
defense."
Bland, 20 F.3d at 1475 (quoting United States v. Walker,
915 F.2d 480, 482 (9th Cir. 1990)).
The parties agree that the motion was not denied as
untimely and, therefore, that the timeliness of the motion is
not an issue on habeas review. Bland, 20 F.3d at 1476; cf.
Walker, 915 F.2d at 482. The parties’ disputes focus on the
other two factors - whether the trial court’s inquiry was
adequate and whether, on its face, the record establishes a
conflict so great that substitution of counsel was required.
A. Adequacy of the Trial Court’s Inquiry
"When a defendant indicates dissatisfaction with his
counsel, the trial court ordinarily must conduct a thorough
inquiry in order to discover whether the situation is
depriving the defendant of an adequate defense." King v.
Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992); accord
United States v. Robinson, 913 F.2d 712, 716 (9th Cir.
1990), cert. denied, 498 U.S. 1104 (1991). Although
thorough, the inquiry need not be exhaustive; it "need only
be ‘as comprehensive as the circumstances reasonably would
permit."’ King, 977 F.2d at 1357 (quoting Hudson, 686 F.2d
at 831).%
6. Whatever the constitutional minimum might be, the Ninth
17.
In light of Hudson and McClendon, it is clear that
the master calendar judge’s inquiry was more than sufficient.
True, unlike McClendon and Hudson, the master calendar
judge was not intimately familiar with the case. He
accommodated for this, however, by asking a broad range of
questions, soliciting further complaints until Moore said that
he had no others.” Whatever may 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 analysis of the extent of the conflict. Cf. Hudson,
686 F.2d at 831. It clearly did so. The court questioned
Moore about every 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 inquire. On the basis of the current record,
the inquiry was constitutionally sufficient.”
has clearly rejected the possibility that such a motion may be denied
without any inquiry. 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; United States v. Torres-Rodriguez, 930 F.Zd
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. E.g. Hudson, 686 F.2d at
828 & n.1, 831; United States v. McClendon, 782 F.2d 785, 789 (9th
Cir. 1986).
7. Further, 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.
8. The Attorney General argues that the state appellate court’s
18.
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 received by way of
argument. Dallas v. Arave, 984 F.2d 292, 296 (9th Cir.
1993). By way of these summary judgment proceedings,
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). Nonetheless, the quality of the relationship is not
wholly outside the scope of 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
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).
19.
F.2d at 1170; accord Hudson, 686 F.2d at 829; Frazer v.
United 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 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.
20.
1. Adequacy ofCommunication”’
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 inquiry, the underlying facts are unclear and, as a
result, this Court’s review is "somewhat hampered." Bland,
20 F.3d at 1477.
The trial court was presented with two different
visions of the communications that had taken place between
Moore and Slick. Moore initially complained that Slick
"didn’t really explain to me the defense he plans to organize
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 responses, 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. . . . [{] 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
9. 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.
21.
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 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,"
id., 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
y+
for an abuse of discretion -- absent an understanding of the
underlying facts. It is not at all clear that the master
calendar judge disbelieved Moore’s description of events.
And, as described by Moore, the amount of communication
was marginal at best. Even as described by Slick, however,
this Court cannot make a definitive ruling. 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 his
"infrequency of 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 require 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.
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
23.
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. S 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 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.
24.
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.
3. 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 N.oore’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 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 proceeding 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
25.
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 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,
Herris, 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 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
10. 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.
26.
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, "[t]he 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 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." Jd.
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, Roston, 986 F.2d at 1292, an
impediment to the "present[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,
11. 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.
27.
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.
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 claim.
Ill. The Request for Co-Counsel Status
12. 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 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. Nor does
the record establish "that the alleged conflict was so great that it
prevented [Moore] from presenting an adequate defense." /d.,
McClendon, 782 F.2d at 789.
28.
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."
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" counse! 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 federal habeas. E.g. Estelle v.
McGuire, 502 U.S. 62, 61 (1991); cf. Hicks 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 lack of jurisdiction. Bell v. Hood, 327 U.S.
678, 682 (1946). Moore asserts that he has a right,
guaranteed by the federal 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. TJzague Retroactivity
29.
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 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.”
1. 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
13. 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.
30.
rises to the level of constitutional importance. See United
States v. 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).
2. Application of Retroactivity Doctrine
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 cocounsel 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 of 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, appeal 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:
31.
[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. |
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.
32.
A. The Claim is Cognizable on Federal 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 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," Powell 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.
14. As explained by another recent Ninth Circuit panel, "Hicks v.
[Oklahoma, 447 U.S. 343 (1980)] recognized that state laws which
guarantee a criminal defendant procedural rights . . . . even if not
themselves constitutionally required, may give rise to liberty interests
protected against arbitrary deprivation by the Fourteenth Amendment’s
Due Process Clause." Campbell v. Blodgett, 997 F.2d 512, 522 (9th
Cir. 1992), cert. denied, 114 S.Ct. 1337 (1994).
%
g
as.
B. The Trial Court Arbitrarily Deprived Moore
of His Qualified Right to Assistance of
Second Counsel
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 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. Inthe 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
15. Accord Campbell, 997 F.2d at 516 ("A court abuses its
discretion when it bases its decision on an erroneous legal conclusion."),
Petition of Hill, 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.").
34.
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 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." Jd., 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. Whiie the capital nature of the case was an
undoubtedly significant factor, Keenan, 31 Cal. 3d 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
16. Accord People v. Burgener, 41 Cal.3d 50S, 524, 224 Cal.Rptr.
112 (1986); People v. Jackson, 28 Cal.3d 264, 168 Cal.Rptr. 603
(1980), cert. denied, 450 U.S. 1035 (1981); People v. Wright, 52 Cal.3d
367, 410, 276 Cal.Rptr. 731 (1990), cert. denied, 502 U.S. 834 (1991).
EEG
35.
effectively terminated by the master calendar court -- Moore
was able to present his reasons therefore during the hearing
on his request 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. Overview 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
"4 constitutional right to proceed without counsel when [the
defendant] voluntarily and intelligently elects to do so. ra
17. 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.
36.
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 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 835.18
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 court and state supreme court here found
18. 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." Jd. "[H]is technical legal knowledge, as
such, [is] not relevant to an assessment of his knowing exercise of the
right to defend himself." /d. at 836.
19. 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 sufficiently definite. Armant, 772 F.2d at 555;
Adams v. Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989).
eS
af.
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
1. 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 Faretta v. California, 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
20. Teague’s retroactivity analysis is no bar here since, as explained
below, under any of the standards employed in the 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___,1 12 S.Ct at 1140.
38.
U.S. 976 (1982)(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 applied the federal standard of 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.
21. 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).
22. 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.)
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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 Motion for _Self-
representation is a Matter of Federal
Significance Properly Governed _by
Federal 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
24. 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, 82 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, Nichols v. McCormick, 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.
40.
ensuring that the Faretta right 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 Federal Courts have Treated Timeliness
as a Matter Infused with a Federal 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 standard 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 appeal, 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 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
—e-
41.
require a continuance would be pro 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 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
42.
acquire disconcerting information about the
substance or manner or 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 894.2
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.2” In the words
25. 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.
26. 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. United States v. Betancourt-
43.
of the Ninth Circuit and Supreme Court, "the federal rule is
an integral part of the constitutional guarantee." Locks 703
F.2d at 406 (quoting Crist v. 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
Federal 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 selfrepresentation motions made "within a
reasonable time prior to the commencement of trial" invoked
a “constitutionally mandated unconditional right" whereas
Arretuche, 933 F.2d 89, 96 (ist Cir.), cert. denied, 502 U.S. 959
(1991).
|
44.
self-representation motions made mid-trial raised no
constitutional concerns. Jd. 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 v. 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).
3. 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 as is used by the Ninth
Circuit. So too would the motion have been per se
27. United States v. Dougherty, 473 F.2d 1113, 1124 (D.C. Cir.
1972); Betancourt-Arretuche, 933 F.2d at 96; United States ex rel.
Maldonado v. Denno, 348 F.2d 12, 16 (2d Cir. 1965), cert. denied, 384
U.S. 1007 (1966); Chapman, 553 F.2d at 894-95, United States v.
Wesley, 798 F.2d 1155, 1155-56 (8th Cir. 1986) (adopting Second
Circuit standard); Fritz, 682 F.2d at 784; Horton v. Dugger, 895 F.2d
714, 715, 717 (ilth Cir. 1990) Gury actually sworn, but noting in dicta
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45.
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.
that jury selection may be crucial event).
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. Cornell, 179 Ariz. 314, 878 P.2d 1352, 1364 (1994);
Commonwealth v. Miller, 6 Mass. App.Ct. 959, 960, 383 N.E.2d 1144
(1978) (adopting D.C. and Second Circuit standards); People v.
McIntyre, 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 Blankenship v. State, 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).
28. 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); United States v. Oakes, 853 F.2d 551, 553
(7th Cir. 1988) cert. denied, 488 U.S. 1033 (1989); United States v.
Jones, 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
v. Cromwell, 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); Estelle v.
State, 558 So.2d 843, 847 (Miss. 1990) (mid-trial request is untimely).
Citing United States v. Merchant, 992 F.2d 1091, 1095 (Oth
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 at mid-trial withdrawal of pro se
status with a concurrent reinvocation 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
46.
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,
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 request, it can hardly be said that the Tenth Circuit
in Merchant rejected the majority approach adhered to by the Ninth
Circuit.
29. Government of Virgin Islands v. James, 934 F.2d 468, 470 (3d
Cir. 1991); United States v. Welty, 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); People v. Dennany, 445 Mich. 412, 432 n.12, 519 N.W.2d 128,
136 n.12 (1994); Hamiel v. State, 92 Wis. 2d 656, 285 N.W.2d 639, 649
(1979).
30. 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 of
Richardson, 100 Wash.2d 669, 674-75, 675 P.2d 209 (1983) (citing State
v. Fritz, 21 Wash.App. 354, 360-61, 585 P.2d 173 (1978) (adopting
Windham standard)); Williams v. State, 655 P.2d 273, 276-77 (Wyo.
1982); State v. Sandler, 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 State v. Sheppard, 172
W.Va. 656, 310 S.E.2d 173, 189-90 (W.Va. 1983)).
47.
es ae
however, it would have been error to deny Moore’s motions
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." Jd., 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
i 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
constitutional right of self-representation. We
intend only that a defendant should not be allowed
to misuse the Faretta mandate as a means to
unjustifiably delays a scheduled trial or to obstruct
the orderly administration of justice.
elie Engehinita Misano AH eae
Pest a Eh ascii oS 2h) ROE Aa eo
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.
Id.
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 required more. No different than the Ninth
Circuit’s analysis in Fritz, Windham acknowledged that there
|
48.
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
31. 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.” /d.
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 se. 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 or allow me to go pro-per, which is my
constitutional right "of self-representation" (sic) under the
Sixth Amendment. Farett (sic) v. Calif., 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.)
Sho ae
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49.
California supreme Court.*” In light of the 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.“ In light of the compelling
32. In rejecting Moore’s explanations without seriously considering
the reasons for the timing of Moore’s request, the 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.
33. In 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).
34. 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 completed. 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
50.
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 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 Moore'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 place.
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,
bd
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SES ES pa nite weae he at pein eb Te 2
TT RE Aer
51.
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 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 dissents 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 .*’
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.
35. 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. Cardwell, 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.
52.
C. 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 inquired
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, 24:27, 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.*”
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.
36. 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.
Se ee ee
53.
The trial court did find that Moore was "unwilling"
to proceed to trial that day if granted the right to represent
himself.2” Contrary to Respondent’s argument, however,
the trial court did not find that Moore invoked his right of
self-representation in order to obtain a delay or to impede
the administration of justice. The trial court found only that
| granting the request would have required a continuance, even
: if that effect was not initially intended by Moore.
“[A]bsent an affirmative showing of purpose to secure
delay," however, this was not a sufficient ground for
denying Moore his constitutional right to represent himself.
Fritz, 682 F.2d at 784 (emphasis original). The alleged
finding by the trial court that Moore was acting with a
dilatory purpose is not entitled to a presumption of
correctness because the trial court never made such a
finding. 28 U.S.C. § 2254(d)(1).
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While the trial court ultimately found that substitution of counsel
was unnecessary, the ruling established only that the master calendar
judge had more faith in Slick’s skills and preparation than did Moore.
The trial court never insinuated and never found that Moore’s complaints
were fabricated, only that they were not sufficiently serious or objectively
compelling in light of Slick’s explanations. The trial court, however,
was not the client; Moore was. Irrespective of the trial court’s faith in
Slick, Moore retained the right to proceed without counsel even close to
the trial date so long as he was not invoking his pro se rights for an
improper purpose. Cf. Lillie, 989 F.2d at 1056.
37. This factual finding is entitled to a presumption of correctness
under § 2254(d) and, on the current record, is not reasonably subject to
debate. Yet it is not beyond dispute.
Moore never stated that his self-representation motion was
conditioned on the granting of a continuance. Initially, it appears, Moore
anticipated only a brief continuance, if any at all, to enable him to locate
and interview Mr. Jones. The need for any significant continuance did
not arise until the master calendar judge drilled Moore on his lack of
understanding of basic legal principles. While the master calendar judge
clearly impressed upon Moore the degree of his inability to manage a
trial, the court never asked Moore whether he was willing to proceed to
trial that day if granted pro se status.
a NT
54.
Moreover, nor did the state supreme court supply
the missing ingredient. The state supreme court did not
make an independent finding that Moore’s motive was to
thwart the proceedings. 28 U.S.C. § 2254(d)(1). Instead,
it found no more than that the trial court was correct in its
conclusion that delay would result and that the attendant
delay would inconvenience the courts and prejudice the
prosecution. Having noted, however, that the trial court
never made such a finding, the state appellate "finding"
cannot be said to be either an independent finding of dilatory
purpose nor can it be said to be “fairly supported by the
record." Parker v. Dugger, 498 U.S. 308, 320 (1991).
9
Even Assuming the State Supreme Court
Made a Finding of Intent to Delay, the
Finding Would Not be Entitled to the
Presumption on the State of This Record
Moreover, however, even if the state supreme
court could be said to have made a factual finding on
Moore’s intent to delay, Ninth Circuit precedent clearly
establishes that, on the facts of this case, this Court could
not defer to that finding as presumptively correct. The Ninth
38. When the trial court discussed the possibility of a continuance,
for example, it clearly did so in the context of forewarning Moore that
the risks encountered by proceeding pro se included that he would be
forced to start trial immediately. (IA R.T. 30:15-32:2.) Moore never
suggested that he was unwilling to accept this as one of the drawbacks of
self-representation. The court never suggested that Moore’s desire for
a continuance would itself be a basis for denying his self-representation
motion.
39. Moreover, it is debatable whether the trial court hearing was
“full and fair" for purposes of the appellate court’s alleged finding since
the trial court never questioned the sincerity of Moore’s reasons for the
timing of his motion or whether they were motivated by an intent to
delay. Fritz, 682 F.2d at 785. 28 U.S.C. § 2254(d)(2), (6). Nor is it
clear that the "material facts were . . . adequately developed." Fritz, 682
F.2d at 785. 28 U.S.C. § 2254(d)(3).
55.
Circuit’s leading case in this area, Fritz, 682 F.2d 782, is
Clearly instructive.
As in Fritz, the only finding of dilatory purpose
could have come from the appellate court.’ In Fritz, as
here, such a finding was not entitled to the statutory
presumption of correctness because the material facts were
not fully developed at the state trial court hearing and
because the defendant was not afforded a full and fair
opportunity to develop those facts at that hearing. A key
consideration was that the trial court never inquired into the
topic:
ae, aan mae ti is abla.
Both the state presiding judge and the state
trial judge held hearings on Fritz’s motion to
defend himself. Neither judge made an express
inquiry into Fritz’s purpose, however, focusing
instead on the nature of the Faretta right and on
Fritz’s ability to waive Knowingly his right to
counsel.
Fritz, 682 F.2d at 785.
The Ninth Circuit acknowledged that the trial court
hearings were not wasted efforts, but highly relevant on
habeas -- albeit not complete:
To be sure, much of the evidence adduced at
the hearings is pertinent to Fritz’s motivation.
The evidence is incomplete, however, and materia!
facts -- such as when it became clear that Fritz and
[his attorney] had irreconcilable differences, and
whether Fritz had a bona fide reason for not
asserting his Faretta right before the morning of
trial -- were never developed.
Fritz, 682 F.2d at 785.
40. Respondent tacitly concedes as much by not even arguing that
the trial court made the alleged finding of dilatory motive.
56.
So too it is here. The trial court judges here never
expressly inquired into the reasons for the timing of Moore’s
motion. Further, unlike Fritz, the inferences from the facts
are not conflicting. Moore had not previously dismissed
attorneys nor taken any other actions to impede the smooth
progress of any earlier trial dates. The Attorney General
identifies nothing in the circumstances surrounding Moore’s
case that could justify an inference that the motion was
abusive other than the bare fact that it was presented close
to trial.’ The reasons for its timing having been clearly
justified and never having been disputed by any court, the
state court finding -- assuming for the sake of argument that
there was such a finding -- would not be entitled to a
presumption of correctness for an additional reason: it
would not be “fairly supported by the record." 28 U.S.C. S
2254(d)(8).
3. The Undisputed State of the Record Indicates
that Moore’s Motion was Not Made _ for
Purpose of Delay
Moreover, however, the state court analyzed only
half of the issue. While the state supreme court emphasized
the Ninth Circuit’s discussion of some of the factors that
could support a finding of dilatory purpose -- the proximity
41. The Attorney General briefly argues that Moore’s request for a
continuance in light of the prosecution’s witness problem is strong indicia
of a malevolent purpose. This is hollow rhetoric. First, there is no
suggestion that, when Moore originally wrote his letter sometime before
March 12, Moore had any idea that the prosecution might incur witness
problems if the case were continued -- certainly none were indicated at
the previous hearings where Moore was present. Further, there is no
indication that, at the time Moore initially made his request, he intended
to seek any continuance whatsoever. Finally, absent a showing of delay
Or an untimely request, the possibility that witnesses might suffer some
minor inconvenience is simply not a factor in resolving whether a
criminal defendant will be permitted to go to trial with or without an
attorney .
oF.
to trial, whether delay would result, and prior dilatory
conduct -- the state court inexplicably overlooked the
remainder of the federal analysis, beginning with the very
next sentence: “The inquiry, however, does not stop there."
Fritz, 682 F.2d at 784. The Ninth Circuit explained, and the
State supreme court failed to continue:
The court must also examine the events
preceding the motion, to determine whether they
are consistent with a good faith assertion of the
Faretta right and whether the defendant could
reasonably be expected to have made the motion
on at an earlier time.
Fritz, 682 F.2d at 784-85.
In this case, the "events preceding the motion"
strongly suggest a finding of good faith on the part of Moore
in interposing his self - representation motion.” Although
the record could be supplemented to clarify the motivations
and factors existing at the time of Moore’s motion, the
Attorney General has affirmatively disavowed the need for
an evidentiary hearing. Further, the Attorney General has
failed to identify any additional facts that it would present at
such a hearing if given the opportunity to do so.*’
42. Moore’s primary dispute focused on Slick’s degree of
preparation. Slick apparently did not discuss his preparation and
investigation until shortly before the March 5 conference Indeed, even at
the March 16 hearing, when Slick stated that he had conferred with
Moore, Moore concurred but clarified that the discussion was limited to
one part of one witness’s testimony. The trial court asked for no further
clarification from Slick about the degree of his conferences with Moore
nor gave any indication that it found Moore’s statement to be
unbelievable.
43. Petitioner, by contrast, has specifically averred that he could and
would supplement the record to further bolster his position on all
unresolved factual issues. Fritz, 682 F.2d at 784-86. The Attorney
General suggests that Keeney v. Tamayo- Reyes, 112 S.Ct. 1715, bars an
evidentiary hearing on this claim. It is not entirely clear that this would
58.
D. The _ Self-Representation Motion Was
Improperly Denied
The trial court offered several other miscellaneous
reasons allegedly justifying the denial of the motion. As
explained below, none are legally sound.
The trial court’s reference to "interfer[ence] with
the orderly administration of justice" is not supportable since
the record does not establish that a continuance would have
been absolutely necessary. At the outset of the hearing, the
only additional task Moore sought to perform was to have
Mr. Jones interviewed. Had Moore’s motion been addressed
closer to the time it was received it is entirely possible that
no continuance would have been requested but for the trial
court’s persistence in impressing upon Moore the degree of
his unfamiliarity with the adjudicatory process.“
be so. Tamayo-Reyes held that, when a habeas petitioner actually had an
evidentiary hearing in state court and negligently failed to submit critical
evidence that was available at the time, he would have to prove “cause
and prejudice” before being entitled to an evidentiary hearing under one
of the six circumstances in which Townsend v. Sain, 372 U.S. 293,
313-18 (1963), held that a hearing would be mandatory. Tamayo-Reyes,
112 §.Ct. at 1721. It is far from clear that Moore’s failure to further
develop the reasons for the timing of his motion can properly be
criticized as "negligent." Further, Tamayo-Reves did not purport to limit
the five other situations in which an evidentiary hearing is mandatory.
Nor did Tamayo-Reyes purport to constrain the instances in which the
federal court could exercise its discretion to hold a hearing. Most
significantly, however, Tamayo-Reyes never suggested that its “cause and
prejudice" standard would be applicable to situations where the issue was
not only not decided by the state tribunal, but had not even been an issue
in dispute.
44. This is not to say that the trial court erred in impressing upon
Moore the dangers of representing himself. To the contrary, such
information was crucial to ensuring that Moore’s waiver of counsel was
informed and intelligent. Faretta, 422 U.S. at 835. United States v.
Mohawk, 20 F.3d 1480, 1484-85 (9th Cir. 1994); United States v.
Balough, 820 F.2d 1485, 1487 (9th Cir, 1987). Rather, the crucial
factor here is that Moore was not initially seeking a continuance and,
59.
Furthermore, once the trial court persuaded Moore that
he was not ready to begin trial immediately, the trial court
never inquired into how much time Moore envisioned in
order to prepare himself for trial. Certainly Moore would
not have been entitled to a continuance long enough for him
to attend law school and pass the bar. (IA R.T. 31: 16-19.)
The master calendar court knew, however, that several
motions would have to be heard before trial and that the
witnesses for those motions were not all local. The judge,
therefore, also knew that trial would not start that same day
nor, likely, within the next week. In light of pending
motions, had Moore requested only a week or a few days to
prepare for trial, it is unlikely that any continuance at all
would have been necessary. Moore likely would have been
able to be ready within the time already set for trial. The
master calendar judge, however, never asked.
Moreover, Moore never conditioned his
self-representation rights on the granting of a continuance; he
only said that he was not ready to begin trial "this
afternoon." Although Moore had expressed a desire for a
continuance, he never suggested that he desired to withdraw
the pro se request if a continuance was not to be granted.
Since Moore was willing to accept pro se status even if the
trial were not continued beyond "this afternoon," the trial
court erred using Moore’s desire for a continuance as a basis
for denying Moore’s request to proceed pro se.
The master calendar judge’s reliance on Slick’s
having previously declared ready for trial is also an
insufficient basis for denying Moore’s motion. See
Chapman, 553 F.2d at 894, cited with approval by Maxwell,
673 F.2d at 5036; Fritz, 682 F.2d at 784.
To impute to Moore Slick’s declaration of "ready"
during a conference that Slick had effectively prevented
Moore from attending and at a time when Slick knew that
Moore disagreed with his state of readiness and wished to
therefore, cannot be accused of having interposed the motion for an
ulterior purpose.
60.
discharge him is premised on the "tenuous and unacceptable
legal fiction" expressly criticized by the Supreme Court.
Faretta, 422 U.S. at 821.
The judge’s reliance on the state law speedy trial
clock is also unavailing. Although the hearing was held on
the 54th of 60 allowable days, state law allowed the trial to
commence up to 10 days thereafter Cal. Pen. Code §
1382(b). The State thus had sixteen days, not six, in which
to bring Moore to trial. More significantly, however, is that
the speedy trial time is subject to waiver by the defendant.
There is nothing to suggest that the State could not have
conditioned an extended continuance on Moore’s willingness
to stipulate to the abeyance of the speedy trial clock during
the continuance.
Next, neither the trial court nor the Attorney
General identify anything unusual in coordinating the trial
date with the out-of-state witnesses other than the normal
difficulties in rearranging travel and vacation schedules. The
Court has found no decision holding that a defendant’s right
to represent himself can appropriately be conditioned on the
convenience of witnesses’ vacation schedules. The
defendant’s constitutional rights surely must take precedence.*
The final reason given by the master calendar judge
was that Moore was "unwilling" to proceed to trial that day.
Regardless of the accuracy of this finding, it is a classic red
herring. The trial was not expected to start "that afternoon."
Indeed, not even the prosecutor was ready to start that day
-- he had already announced a need for "one or two days
45. Unlike the California Court of Appeal case of Ruiz, there is no
allegation that Moore was threatening witnesses or hoping to use the
delay as a means of deterring witnesses from testifying against him.
Further, the prosecution’s expressed concern of losing witnesses is
beguiling. Having voluntarily postponed the initial filing of the case for
nearly five and a half years and still having managed to maintain control
over its witnesses for an additional year, there is no credible suggestion
that the district attorney could not have weathered a few additional weeks
in order to allow Moore to prepare for a trial at which he would present
his own defenses, not those developed by Slick.
61.
lead time" to have the out-of-state witnesses to come in for
pre-trial motions. Moreover, a defendant’s inability to
commence trial proceedings immediately is not, without
more, a basis for denying a request to proceed pro se.
Armant, 772 F.2d at 554-58; Fritz, 682 F.2d at 784-85.
E. Conclusion
Moore’s motion for self-representation satisfied all
the requirements entitling him to permission to represent
himself. Improperly forcing counsel on a defendant against
his will is structural error and, therefore, "not amenable to
harmless error analysis." Arlt, 41 F.3d at 524, guoting
Adams, 875 F.2d at 1445. Peters, 33 F.3d at 1193. "The
improper denial of this right [to represent oneself] is ‘per se
prejudicial errors and thus requires automatic reversal of a
criminal conviction." Arlt, 41 F 3d at 524, citing Savage,
924 F.2d at 1466.%
46. The Attorney General suggests that, if the writ is granted on this
claim, the appropriate remedy should be to force Moore to proceed pro
sé at any retrial. Contrary to the Attorney General’s insinuations, this
is inconsistent with Moore’s request to the trial court. While Moore
plainly expressed that, in entire scheme of things, he would prefer to be
represented by a lawyer, he was also very clear that "[i}f the court would
not order substitute counsel, he wished to represent himself." Adams,
875 F.2d at 1445. The condition Suggested by the Attorney General
would thus only be relevant if the trial court were to appoint Slick as
defense counsel for any retrial.
In light of their previous conflict and the results of the trial, after
reviewing the vigorous pleas by Moore to proceed without Slick despite
the overwhelming obstacles, there is little doubt that if required to make
the choice, Moore would again opt to proceed pro se rather than be
represented by Slick. This, however, is a choice that need be made only
if Slick is again appointed defense counsel. If the situation arises, Moore
will have to make the choice voluntarily and intelligently, fully informed
of the consequences of his actions. Faretta, 422 U.S. at 835, Mohawk,
20 F.3d at 1484. This is not a decision that can or should be thrust upon
him without a hearing.
62.
VI. The Mid-Trial Motion to Discharge Slick and
Proceed Pro Se
Moore’s final claim under submission challenges
the trial court’s denial of permission to discharge Slick and
proceed pro se beginning with the defense closing argument.
The Attorney General presents two defenses -- that, as a
mid-trial motion, it was untimely and that, on the merits, the
trial judge acted within his discretion.
A. Scope of the Substantive Right Involved
The parties both treat this claim as a genuine
dispute over the scope of a criminal defendant’s
self-representation rights. Moore styles his claim as a denial
of his right to represent himself. The trial judge recognized
the motion as such. The Attorney General does not contend
that this is simply a disguised request designed to circumvent
the general rule that represented defendants need not be
granted the right to address the jury. E.g. United States v.
Dellinger, 472 F.2d 340, 408 (7th Cir. 1972), cert. denied,
410 U.S. 970 (1973).
In support of his claim, Moore relies heavily on an
observation included in the Faretta opinion itself. In
appraising the very existence of a= right’ of
self-representation, the Supreme Court pointed out its
previous implicit recognition of such a right. The Court in
Faretta observed that, in Snyder's discussion of the
importance of the defendant’s right to be present in the
courtroom, the court remarked:
[Tj]he "defense may be made easier if the
accused is permitted to be present at. . . the
summing up of counsel, for it will be in his power,
if present, to give advice or suggestion or even to
supersede his lawyers altogether and conduct the
trial himself."
rr
63.
Faretta, 422 U.S. at 816 (emphasis in original) (quoting
Snyder, 291 U.S. at 106).
Based on this excerpt from Faretta, Moore argues
that he had an unconditional right to represent himself at
closing argument and that the trial court’s denial of this
motion violated the constitutional right.42
B. The Claim Cannot Be Denied on the Basis of
Timeliness
The Attorney General’s first defense rests on the
principle recognized in virtually all jurisdictions -- that a
self-representation motion is generally untimely if not
asserted until mid-trial. Smith, 780 F.2d at 811-12. While
the general rule that mid-trial requests are untimely may
appear to conflict with the language from Faretta quoted
above, id., 422 U.S. at 816, the two need not be harmonized
here. The timeliness of Moore’s second request to represent
himself "did not underlie the district court’s exercise of its
discretion to deny the motion, and thus we do not find it
dispositive of this issue." Walker, 915 F.2d at 483. Accord
Price, 474 F.2d at 1227, Peters, 33 F.3d at 1192. Further,
47. While the parties discuss other cases, the “right” involved truly
emanates from Faretta and nowhere else. While a handful of cases do
address the contours of a criminal defendant's right to present closing
argument, none of them do so in the context of request for
self-representation. Rather, the cases either involve situations where the
defendant was represented by counsel, did not want to waive counsel,
and requested” “hybrid” co-counsel status for closing argument, e.g.
Dellinger, 472 F.2d at 408, or involved situations where the trial court
actually permitted the defendant to present closing argument and the
issues on appeal were whether the partial waiver of counsel was knowing
and voluntary, e.g. Watts v. United States, 273 F.2d 10, 11-12 (9th Cir.
1959), cert. denied, 362 U.S. 982 (1960). |
A different situation arises when the defendant did not testify and
is seeking to use closing argument as an attempt to present evidence to
the jury without being under oath or subject to cross-examination.
Bassette v. Thompson, 915 F.2d 932, 941 (4th Cir. 1990), cert. denied,
499 U.S. 982 (1991); United States v. Tucker, 773 F.2d 136, 141 (7th
Cir. 1985), cert. denied, 478 U.S. 1022 (1986).
64.
"{t]he record contains no hint that the motion was a tactic to
secure delay, and there is nothing that suggests that any
delay would have attended the granting of the motion."
Price, 474 F.2d at 1227."
48. As observed by the Fifth Circuit, the propriety of
demarcating self-representation requests by reliance on whether the trial
has commenced is not beyond reproach:
Faretta casts doubt on the practice of characterizing the
pro se right as unqualified before trial but committed to the
discretion of the court thereafter. United States v. Garcia,
517 F.2d 272, 277 n.4 (Sth Cir. 1975), has been read to
suggest that Faretta may have “eroded” earlier decisions that
relied on this distinction between pre- and mid-trial assertion
of the right.
Chapman, 553 F.2d at 893 (citations and footnote omitted). Accord
Barnes, 258 Ark. at 570-71. Nonetheless, the distinction is adhered to
by the Ninth Circuit and, therefore, binding on this Court. Smith, 780
F.2d at 811-12.
The holding in Smith is, of course, distinguishable in numerous
respects. If nothing else, the holding was impacted by the fact that not
only was the motion not raised before trial, but it had not even been
raised at the defendant’s first opportunity to do so: "tie request, made
half-way through trial, was not timely because it was based on matters
that occurred prior to trial." Smith, 780 F.2d at 812.
Here, by contrast, while Moore was clearly disillusioned with Slick
prior to trial, he raised those concerns forthwith. His motion was
denied. Moore renewed his request to represent himself beginning with
closing argument upon learning -- in the middle of trial -- that Slick had
no intention of highlighting a significant number of inconsistencies in the
prosecution’s key witness’s testimony. Unlike the defendant in Smith, it
is not reasonably probable that Moore could have raised these additional
concerns any earlier.
Nor was this a situation where “the trial [which was already
underway] would need to be continued if the request were granted." /d.,
780 F.2d at 812. Moore emphasized that he was ready to proceed with
closing argument forthwith. There is no contention that delay was either
intended or would result.
Finally, also unlike Smith, it is not at all clear that Moore can
properly be penalized for having made a mid-trial request when all his
earlier requests had in fact been denied. Unlike Smith, Moore’s first
65.
C. The Trial Court Failed To Consider The
Relevant Factors For Exercising Its Discretion
Even if the motion were considered untimely,
however, the result is that the right is subject to the exercise
of the trial court’s discretion in light of various factors -- the
need to minimize disruptions, considerations of convenience
and delay, maintaining continuity and the ongoing flow of
trial proceedings, avoiding jury confusion, and the
defendant’s reasons for the timing of the request and the
reasons for the request itself. United States v. Matsushita,
794 F.2d 46, 51 (2d Cir. 1986); United States v. Dunlap,
577 F.2d 867, 868 (4th Cir.), cert denied, 439 U.S. 858
(1978); United States v. Tucker, 773 F.2d 136, 141 (7th Cir.
1985), cert. denied, 478 U.S. 1021 (1986). The California
Supreme Court has identified these same factors as the
appropriate guide for the trial court. Windham, 19 Cal.3d
at 128-29. On one significant point there is no dispute: the
trial court failed to consider any of these factors.
Moore had substantial and legitimate reasons for
requesting pro se status. The essence of the prosecution’s
case was that Moore developed the plan to go to the
Crumb’s apartment to steal their recently-collected rent
receipts and that, after the robbery, the Crumbs would be
killed. The prosecution contended that Moore, his
co-defendant Lee Harris, and the immunized accomplice
Avery went to the Crumb’s apartment, stole money and
jewelry and, while there, Moore personally killed the
Crumbs.
Moore was a former tenant of the building and
admitted that he had devised the plan to rob the Crumbs. He
testified, however, that he did not participate in the robbery
and that murder was never part of the plan. According to
Moore, earlier on the day of the killings, he went by the
assertion of the right of self-representation was not during the middle of
trial, but well before the beginning of the actual trial. His second
assertion of his self-representation rights -- the one made during trial -- -
was based on events that had transpired during trial.
66.
apartment building with Avery and Harris and told them how
they could enter. He specifically did not go with Avery and
Harris that evening because he knew that the Crumbs would
recognize him. This was arguably corroborated by the
testimony of Mr. Jones, who is the person that enabled
Avery and Harris to enter. Jones stated that he knew
Moore, would have recognized Moore, and did not see
Moore at the apartment building that night.
Moore’s explanation was no great testament to his
moral fiber and could have amply supported convictions for
the burglary, robbery, and possibly also felony-murder.
Nonetheless, if the jury believed his version of events -- or
at least had a reasonable doubt as to the prosecution’s theory
-- it could not have found that the special circumstances were
true, which required that Moore participated in the killings
or intended for the Crumbs to be killed. Without the special
circumstances, Moore was ineligible for the death penalty.
As plainly recognized by both the prosecuting
attorney and the California Supreme Court, the case against
Moore rested entirely on the jury’s perception of Terry
Avery, the immunized accomplice who was the prosecution’s
key witness. The district attorney conceded during closing
argument to the jury, "Terry Elaine Avery [is] the key to
this case because she’s the key to the special circumstances,
who was present, who was there and actively committed the
crimes, no question." On appeal, the state supreme court
concurred, opening its discussion of the guilt phase evidence
by remarking "The case against defendant was based almost
entirely on the testimony of Terry Avery, who was granted
immunity from prosecution in exchange for her testimony."
Moore, 47 Cal.3d at 71.
As to the dispute over closing argument, Moore’s
initial disagreement with Slick arose when Slick refused to
present any evidence or argument at all. After further
discussion, however, Slick acquiesced. When Moore
withdrew his request to discharge Slick, Moore clearly stated
that he was doing so based on his understanding that Slick
67.
had promised to point out, during closing argument, the
inconsistencies in Avery’s testimony.
After the prosecution had delivered a substantial
portion of its opening argument, Moore and Slick again
discussed the substance of the defense closing. The
relationship again began to falter. Because the essence of
the defense was that Moore was not present, Slick proposed
focusing on the inconsistencies in Avery’s testimony relating
to whether Moore was, or could have been, present. While
Moore agreed that Slick’s focus was valid and one which he
wanted highlighted to the jury, Moore felt that the challenge
to Avery should be much more broadly based -- to wit, that
Avery was an entirely unreliable witness.
Moore wanted the jury to be reminded that not only was
Avery’s testimony inconsistent with the physical evidence
and conflicting as to Moore’s presence, but that Avery’s
testimony was inconsistent in many other respects as well.
One of the most significant arguments raised by Moore
related to the prosecution’s emphasis during summation on
Avery’s testimony that she had "turned herself in." Moore
wanted the jury reminded, however, that law enforcement
testimony clearly indicated that Avery had in fact been
turned in involuntary by her mother.
Throughout its colloquy with Moore, the trial judge
repeatedly confirmed that Moore’s proposed arguments were
legitimate, but expressed confidence that those arguments
would likely be presented by Slick. Each time, Moore
confirmed that Slick did not intend to make the arguments
that Moore was proposing. In case Moore was not
sufficiently clear, Slick removed any residual doubt: "There
are some inconsistencies Mr. Moore just mentioned that I do
not intend to argue. . . . [] I don’t want to distract this jury
by talking about things that I don’t feel are germane to his
guilt or innocence of the special circumstances and I’ll not
do so."
49. It is not disputed that “appointed counsel, and not his client, is
in charge of the choice of trial tactics and the theory of defense." United
68.
This was no small dispute. In a case decided only
months before the events at issue, the Supreme Court
affirmed that
The Counsel Clause itself, which permits the
accused "to have the Assistance of Counse! for his
defense," implies a right in the defendant to
conduct his own defense, with assistance at what,
after all, is his, not counsel’s trial.
McKaskle, 465 U.S. at 174 (emphasis original).
Moore echoed these concerns in arguing to
the trial judge:
[1]f Ron Slick is wrong in his arguments, his
arguments don’t prove to be successful to the jury,
he’s not going on death row, Iam. He’s not going
to get a life sentence, I am. It is my life I am
fighting for.
Moore’s request to proceed pro se for closing
arguments cannot be derided as involving only an
insubstantial part of the trial. As the Supreme Court
observed in a case decided the same day as Faretta, "'t\}here
can be no doubt that closing argument for the defense is a
States v. Wadsworth, 830 F.2d 1500, 1509 (9th Cir. 1987) (citing Henry
v. Mississippi, 379 U.S. 443, 451 (1965)). Contrary to the Attorney
General’s suggestion, however, the issue here is not whether Slick’s
choice of topics for argument was within the realm of professionally
reasonable judgment. The instant claim does not charge that Slick’s
closing argument was itself constitutionally deficient. Cf. Wade v.
Calderon, 29 F.3d 1312, 1324-25 (9th Cir. 1994), cert. denied, 115
S.Ct. 923 (1995). Nor does Moore argue that he had a right to control
the topics addressed by trial counsel during closing argument. Rather,
he argues, that Slick’s proposed argument was "not the defense
guaranteed him by the Constitution, for . . . it was not his defense."
Faretta, 422 U.S. at 821. Moore felt so strongly about this that he was
willing to waive his right to counsel and represent himself for the
remainder of the trial.
69.
basic element of the adversary fact-finding process in a
criminal trial." Herring v. New York, 422 U S. 853, 858
(1975).
The other relevant factors also favored Moore.
The timing of Moore’s motion was justified since it was
prompted by information that he learned during the middle
of trial and reasonably could not have known prior thereto.
Furthermore, all indications in the record suggest that Moore
was a cooperative and respectful litigant. Allowing him to
represent himself beginning with closing argument would not
have created any disruption. Nor would granting the request
have caused inconvenience, delay, or interfered with the
flow of the trial. Moore clearly enunciated the topics he
wanted to cover in closing arguments and confirmed that he
was ready to proceed forthwith.
At least in the context of this case, where Moore
himself had actually taken the stand and testified and was
subjected to cross-examination, allowing Moore to deliver
closing argument would have resulted in no more jury
confusion than would any other case involving a pro se
litigant. Indeed, probably less so. When the trial judge
cautioned Moore that he would not be allowed to present
additional evidence during closing argument and would be
limited to the evidence in the record, Moore expressly
acknowledged this limitation, identified the topics he
proposed to argue, and clearly explained how those matters
were already established in the record.
The trial judge failed to consider the factors that it
was required to rely upon in guiding its discretion. Had it
considered those factors, it would have been compelled to
conclude that Moore’s request should be granted.
D. Conclusion
The error in denying Moore the right to represent
himself beginning at defense closing argument was reversible
per se. See supra Section V(E).
70.
ORDER
IT IS HEREBY ORDERED that Petitioner’s
motion for summary judgment be, and hereby is,
GRANTED as to Claims A and C; to wit, Petitioner’s
motions to proceed pro se prior to jury empanelment, and
prior to closing argument, respectively.
IT IS FURTHER ORDERED that Petitioner’s
motion for summary adjudication be, and hereby is,
DENIED, and the following issues are hereby summarily
adjudicated on the Court’s own motion:
(1) Moore’s exclusion from the March 5 and
March 9 hearings did not deprive him of due process,
(2) The trial court conducted a sufficient inquiry
on Moore’s motion for substitution of counsel,
(3) The trial court did not prejudicially err in
denying Moore’s motion for second counsel, and
(4) Moore’s claim that the trial court
unconstitutionally denied him co-counsel status or
appointment of advisory counsel is barred under the
retroactivity doctrine of Teaque v. Lane, 489 U.S. 288
(1989) (plurality).
IT IS FURTHER ORDERED that Petitioner’s
motion for summary judgment be, and hereby is, DENIED
as to Claim B; to wit, that the trial court improperly denied
his motion for substitution of counsel.
IT IS FURTHER ORDERED that Respondent’s
motion for summary judgment be, and hereby is, DENIED
as moot.
IT IS FURTHER ORDERED that Moore’s
petition for writ of habeas corpus be, and hereby is,
TL TL. ee
71.
GRANTED and that the judgment of conviction and
sentence of death in this case be VACATED AND SET
ASIDE, as are any proceedings related to carrying out that
judgment. Respondent shall release Moore from custody
after the expiration of 60 days unless, within 60 days hereof,
the State of California grants Moore the right to a new trial
on all guilt, special circumstance, and penalty issues in
accordance with applicable California law and the United
States Constitution. 28 U.S.C. § 2243.
IT IS FURTHER ORDERED that the Clerk of
this Court shall immediately notify the Warden of San
Quentin Prison of this Court’s ruling.
IT IS SO ORDERED.
Dated: March 31, 1995.
/s/
DAVID V. KENYON
United States
District Judge
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