Free Report and Recommendations (CV) - District Court of California - California

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Report and Recommendation is submitted to United States District Judge Irma E. Gonzalez pursuant to 28 U.S.C. § 636(b) and Local Civil Rules 72.1(d) and HC.2 of the United States District Court for the Southern District of California. On November 29, 2007, Petitioner Eric Angel Thomas, a state prisoner, commenced these habeas corpus proceedings pursuant to 28 U.S.C. § 2254. Doc. No. 1. Petitioner challenges his convictions v. M.C. KRAMER, Warden, Respondent. ERIC ANGEL THOMAS, Petitioner, ) ) ) ) ) ) ) ) ) ) Civil No. 07cv2257-IEG (BLM) REPORT AND RECOMMENDATION FOR ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

for selling cocaine base and possessing cocaine base for sale. This Court has considered the Petition ("Pet."), Respondent's Answer, Petitioner's Traverse, and all supporting documents

submitted by the parties.

For the reasons set forth below, this

Court RECOMMENDS that Petitioner's Petition for Writ of Habeas

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Corpus be DENIED. FACTUAL AND PROCEDURAL BACKGROUND The following facts are taken from the California Court of Appeal's opinion on direct review in People v. Thomas, No. D049171, slip op. (Cal. Ct. App. April 17, 2007). Lodgment 2. This Court

presumes the state court's factual determinations to be correct absent clear and convincing evidence to the contrary. 28 U.S.C.

§ 2254(e)(1); Miller-El v. Cockrell, 537 U.S. 322, 340 (2003); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness). Detective Roberto Lemus was working as part of a narcotics team when he approached Carla Poole in a known narcotics trafficking area. Lemus asked her if she knew from whom he could buy narcotics, and Poole responded that she would help him find a dealer. Lemus gave Poole a prerecorded $20 bill. Poole walked across the street and spoke to Eric Thomas, who walked to the front of a nearby hotel and took something out of a planter box. He then placed something back in the planter box. Thomas walked back to Poole and handed her something, allegedly rock cocaine, and Poole gave Thomas something, allegedly the prerecorded $20 bill, in return. Poole walked back to Lemus and handed him .13 grams of cocaine base. Lemus gave the "bust signal," and uniformed officers arrested Poole and Thomas. The officers searched Poole and found nothing. The officers searched Thomas and found the prerecorded $20 bill, .18 grams cocaine base, and an additional $251 in cash. Officer Robert Stinton searched a planter box near where Thomas was arrested and found .81 grams of cocaine base. He did not search the planter box from which Thomas allegedly obtained the cocaine he gave to Poole. Lodgment 2 at 2. On July 12, 2006, a jury convicted Petitioner of the crimes of selling cocaine base and possessing cocaine base for sale in

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violation of California Health and Safety Code §§ 11352(a) and 11351.5. Lodgment 1 at 31-32. The jury also found true the

allegations that Petitioner had served a prior person term and suffered a prior violent felony conviction as set forth in

California Penal Code §§ 667.5(b), 667(b)-(i) and 1170.12. 75-76.

Id. at

The court sentenced Petitioner to a total of nine years' Id. at 90-91; Lodgment 2 at 3.

imprisonment.

Petitioner appealed his conviction and sentence and, on April 17, 2007, the appellate court affirmed. Lodgment 2. The court

upheld the trial court's decision not to dismiss Petitioner's prior felony conviction allegation. that there was substantial Id. at 3-4. evidence The court also found Petitioner's Id. at 4-5.

supporting

conviction for possession of cocaine base for sale.

On June 11, 2007, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court asserting two claims, "ineffective assistance of counsel" and "violation of due process of law." Lodgment 3. On October 31, 2007, the California Supreme

Court summarily denied the petition, citing to In re Swain, 34 Cal.2d 300, 304 (1949) and People v. Duvall , 9 Cal.4th 464, 474 (1995). Lodgment 4. STANDARD OF REVIEW Title 28 of the United States Code, section 2254(a), sets forth the following scope of review for federal habeas corpus claims: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

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1 28 U.S.C. § 2254(a). 2 The Petition was filed after enactment of the Anti-terrorism 3 and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 1044 132, 110 Stat. 1214. 5 AEDPA: 6 7 8 9 10 11 12 13 14 28 U.S.C. § 2254(d). 15 on the merits. 16 2002). Where there is no reasoned decision from the state's highest 17 court, the Court "looks through" to the analysis provided by the 18 underlying appellate court decision. 19 797, 801-06 (1991). 20 A state court's decision is "contrary to" clearly established 21 federal law if the state court: (1) "arrives at a conclusion 22 opposite to that reached" by the Supreme Court on a question of law; 23 or (2) "confronts facts that are materially indistinguishable from 24 a relevant Supreme Court precedent and arrives at a result opposite 25 to [the Supreme Court's]." 26 (2000). 27 A state court's decision is an "unreasonable application" of 28 Williams v. Taylor, 529 U.S. 362, 405 Ylst v. Nunnemaker, 501 U.S. See Luna v. Cambra, 306 F.3d 954, 960 (9th Cir. A summary denial constitutes an adjudication (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. (d) 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 United States; or Under 28 U.S.C. § 2254(d), as amended by

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clearly established federal law where the state court "identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the

prisoner's case."

Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003).

"[A] federal habeas court may not issue a writ simply because the court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously or incorrectly . . . . Rather, that application must be objectively unreasonable." (internal Andrade, marks 538 and U.S. at 75-76 (emphasis added) Clearly

quotation

citations

omitted).

established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412. Finally, habeas relief also is available if the state court's adjudication of a claim "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in state court." 28 U.S.C. § 2254(d)(2). A state court's decision will not be overturned on factual grounds unless this Court finds that the state court's factual determinations were objectively unreasonable in light of the evidence presented in the state court proceeding. See Miller-El, 537 U.S. at 340; see also Rice v.

Collins, 546 U.S. 333, 341-42 (2006) (the fact that "[r]easonable minds reviewing the record might disagree" does not render a decision objectively unreasonable). This Court will presume that

the state court's factual findings are correct, and Petitioner may overcome that presumption only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

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DISCUSSION Petitioner raises one claim in his federal petition. Pet.

In this claim, Petitioner alleges that his due process and Sixth Amendment rights were violated when he was forced to be represented by a court-appointed attorney. Id. at 6-8. Petitioner initially

argues that his rights were violated because he did not consent in writing to the representation. Id. at 6. Petitioner also asserts

that the trial judge violated his constitutional rights when he refused to continue the preliminary hearing and trial to permit Petitioner to locate and hire a new attorney. Id. at 6-8. Finally,

Petitioner alleges that the failure to appoint a new lawyer violated his constitutional rights because there was an inherent conflict when his attorney "was selected by the same agency responsible for [his] prosecution" and/or an actual conflict due to the "apparent lack of communication" between Petitioner and his attorney. Respondent counters did that the Petition present should his be Id. denied to the is

Petitioner Supreme

not

fairly that,

claim his

California unexhausted.

Court

and

therefore,

claim

Answer at 5-9.

Respondent also

contends that the

California Supreme Court denied Petitioner's petition on state procedural grounds, and that the petition is thus procedurally defaulted. Id. at 9. Finally, Respondent argues that the Petition

should be denied because the state court's decision was not contrary to, or an unreasonable application of, clearly established United States Supreme Court law. Id. at 9-14.

In his traverse, Petitioner does not address the procedural default allegation but argues that his claim is exhausted and that the trial court violated his constitutional rights. Traverse.

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A.

Exhaustion The exhaustion of available state judicial remedies is a

prerequisite to a federal court's consideration of claims presented in habeas corpus proceedings. 28 U.S.C. § 2254(b); see Rose v.

Lundy, 455 U.S. 509, 522 (1982); McQueary v. Blodgett, 924 F.2d 829, 833 (9th Cir. 1991). Exhaustion of a habeas petitioner's federal

claims requires that they have been "fairly presented" in each appropriate state court, including a state supreme court with powers of discretionary review. Baldwin v. Reese, 541 U.S. 27, 29 (2004).

However, claims are not exhausted by mere presentation to the state appellate system. A petitioner also must "alert[] [the state] court to the federal nature of the claim." Id. at 29. A petitioner may

indicate a federal claim by citing the source of federal law upon which he relies, or by merely labeling the claim as "federal." at 32.1 In his federal habeas petition, Petitioner asserts a due process counsel. violation and incorporates a constitutional right to Id.

Pet.; Traverse.

Is support, he alleges numerous factual

predicates including an alleged lack of written consent to counsel's representation, the trial court violation of Petitioner's right to choose a lawyer, the lack of communication between counsel and Petitioner, and the trial court's failure to continue the Pet.;

preliminary hearing to permit him to obtain new counsel.

Though federal courts have not been entirely consistent in specifying the quantum of federal authority a habeas petitioner must present to the state court, the Supreme Court's decision in Baldwin implies that a relatively undeveloped reference to federal principles suffices. But see, Gray v. Netherland, 518 U.S. 152, 162-63 (1996) (unelaborated appeals to broad constitutional principles insufficient to alert state court to particularized federal claims); Hiivala v. Wood, 195 F.3d 1098, 1106 (9th Cir. 1999) (citing Gray v. Netherland).

1

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Traverse.

In Claim 1 of his state habeas petition, Petitioner also Pet. In this

asserts an ineffective assistance of counsel claim.

claim, he alleges not only that his attorney was not adequately prepared, but also that his Sixth Amendment right to counsel was

violated when the court refused to permit him to be represented by an attorney of his choice and permitted his court-appointed attorney to represent him, even though he had not signed a written consent form and there was an "obvious break-down of communication" between Petitioner and his attorney. Lodgment 3 at 4.

Respondent argues that Petitioner did not fairly present his federal claim to the California Supreme Court because the federal claim involves a Sixth Amendment right to counsel, including the right to choose his own attorney, whereas the state claim was simply an ineffective assistance of counsel claim. Answer at 8. While

Respondent is correct that there are differences between the two claims, Respondent construes the claims too narrowly. Both claims

allege a violation of Petitioner's Sixth Amendment right to counsel by the trial court's insistence that Petitioner proceed to trial with the court-appointed attorney, without a signed consent form, and despite the alleged break-down in communication. This Court

must liberally construe pleadings by pro se litigants, see Haines v. Kerner, 404 U.S. 519, 520 (1972) (instructing that courts must construe pro se habeas filings liberally) and Allen v. Calderon, 408 F.3d 1150, 1153 (9th Cir. 2005) (same), and in light of this fact, the Court finds that the federal claim is exhausted. Accordingly,

this Court RECOMMENDS that Petitioner's claim not be denied on this basis. ///

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B.

Procedural Default A habeas petition is procedurally defaulted when the last

reviewing state court dismissed it for failure to comply with a state rule of procedure. Trest v. Cain , 522 U.S. 87 (1997); When the

Lambright v. Stewart, 241 F.3d 1201, 1205 (9th Cir. 2001).

procedural rule is independent of federal law and adequate to support the judgment, federal review of the claims is barred unless the petitioner can demonstrate either cause for the default and actual prejudice resulting from the alleged constitutional

violations, or that failure to consider the claims will result in a fundamental miscarriage of justice. Carter v. Giurbino, 385 F.3d

1194, 1196-97 (9th Cir. 2004) (citing Coleman v. Thompson, 501 U.S. 722, 750 (1991)). Procedural default is an affirmative defense, and once the respondent has adequately pled the existence of independent and adequate state procedural grounds, the burden to place that defense in issue shifts to the petitioner. F.3d 573, 586 (9th Cir. 2003). 1. The Duvall/Swain Denial Constitutes an "Independent and Adequate" State Procedural Ground Upon Which the California Supreme Court "Actually Relied" last court to review Petitioner's claims was the Bennett v. Mueller, 322

The

California Supreme Court, which issued a one-sentence denial of the petition, citing In re Swain, 34 Cal.2d 300, 304 (1949), and People v. Duvall, 9 Cal.4th 464, 474 (1995). Lodgment 4; see Carter, 385

F.3d at 1197 (one-sentence summary denial of petition incorporating unelaborated case citation sufficient for procedural default).

Petitioner's claim is thus procedurally defaulted if this citation is an "independent and adequate" state procedural ground upon which the California Supreme Court "actually relied." Valerio v. Crawford,

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306 F.3d 742, 773 (9th Cir. 2002) (en banc). A state court's denial is not independent when it "appeared to rest primarily on resolution of [the petitioner's federal] claims, or to be interwoven with those claims." Coleman, 501 U.S.

at 735; Park v. California, 202 F.3d 1146, 1151 (9th Cir. 2000) (citing Coleman, 501 U.S. at 733). Here, the California Supreme Duvall.2

Court cited to page 474 of its previous holding in Lodgment 4.

This portion of Duvall describes a habeas petitioner's

duty under California law to "state fully and with particularity the facts on which relief is sought," and "include copies of reasonably available documentary evidence supporting the claim." Duvall, 9

Cal.4th at 474; see King v. Roe, 340 F.3d 821, 823 (9th Cir. 2003) (recognizing Duvall page 474 as requiring petitioner to plead with particularity). This requirement is described in depth, and, though page 474 contains numerous citations to California authorities, there are none to federal law. Id.

The cited portions of Duvall and Swain describe a California procedural rule and do not rely on federal law or cases. In denying

Petitioner's claims, the state supreme court relied exclusively on these citations. Lodgment 4. Accordingly,the state court's denial See Carter, 385 F.3d

in this case was "independent" of federal law.

at 1197 (denial independent when "[n]o analysis of federal law enters into the [] equation"); Valerio, 306 F.3d at 775-76 (habeas petition procedurally defaulted when state court clearly and

The California Supreme Court also cited to page 304 of its prior decision in Swain. On that page, the Swain Court held that "vague, conclusionary allegations" are "insufficient to warrant issuance of the writ." Swain, 34 Cal.2d at 304. The court also held that this requirement is a procedural hurdle and not a decision on the merits. Id. In reaching its decision, the Duvall court cited the Swain decision. Duvall, 9 Cal.4th at 474.

2

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expressly relied on state law). To be procedurally defaulted, a petitioner's claims also must be denied on "adequate" grounds. "A state procedural rule

constitutes an adequate bar to federal court review if it was `firmly established and regularly followed' at the time it was applied by the state court." Poland v. Stewart, 169 F.3d 573, 585

(9th Cir. 1999) (quoting Ford v. Georgia, 498 U.S. 411, 425 (1985)). The burden of proving adequacy is upon the state, and if the state does so, then the burden shifts to the petitioner to assert

"specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating

inconsistent application of the rule." Bennett, 322 F.3d at 585-86. When describing a habeas petitioner's duty to plead with particularity and support his claims with documentary evidence, the Duvall court summarized a long-standing rule, citing a series of cases, including Swain, dating from the 1920's to the 1990's, when the opinion was written. Duvall, 9 Cal.4th at 474. Since then,

California appellate courts have continued to affirm the Duvall requirements. See, e.g., In re Hawthorne, 35 Cal. 4th 40 (2005); In re Seaton, 34 Cal. 4th 193 (2004). Likewise, the Ninth Circuit has

followed the California Courts, citing Duvall page 474 as requiring pleading with particularity and supporting documentary evidence. See, e.g., Griffey v. Lindsey, 345 F.3d 1058, 1066 n.11 (9th Cir. 2003) (vacated on other grounds as moot); King, 340 F.3d 823; see

also Jones v. Woodford, 2008 WL 505230 at *36, 03cv1463-J (RBB) (S.D. Cal. 2008). These requirements are thus well-established,

have been consistently applied for the better part of a century, and were firmly in place when Petitioner submitted his state supreme

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court petition in 2007.

See Carter, 385 F.3d at 1198 (California

procedural rule dating back to 1947 as independent and adequate procedural bar to federal review); Poland, 169 F.3d at 583-85 (state rule adequate when "consistently and regularly followed"). The burden therefore shifts to Petitioner to prove that the Duvall rules were not firmly established and regularly followed at the time the California Supreme Court denied his petition. Bennett, 322 F.3d at 585-86. respect, much less Id. Petitioner fails to make any arguments in this support his burden with "specific factual

allegations."

Moreover, the Court's independent review of the Petitioner thus fails to

law found no support for such an argument.

show that the state supreme court's citation to Duvall and Swain constituted anything but an adequate ground upon which to deny his claims. The California Supreme Court also must have "actually relied" on the Duvall/Swain rule in its denial of Petitioner's petition. Valerio, 306 F.3d at 773. cited and both provide As Duvall and Swain were the only cases the same rationale, the supreme court

necessarily and actually relied on that holding. For the above reasons, the California Supreme Court's

citation to Duvall and Swain constituted "actual reliance" on an "independent and adequate" procedural rule. Petitioner's claims are therefore procedurally defaulted. 2. As Petitioner Neither Suffered Cause and Prejudice, Nor Argues Actual Innocence, His Claims are Procedurally Defaulted

To overcome procedural default, Petitioner must demonstrate either cause for his default and prejudice resulting from the alleged constitutional violations, or that he is actually innocent,

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such that a failure to consider his claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 750

(standard based on "the important interest in finality" served by state procedural rules and the "significant harm ... that results from the failure of federal courts to respect them"); Thompson, 147 F.3d 1124, 1126 (9th Cir. 1998). meet this burden. "`[C]ause' under the cause and prejudice test must be Boyd v.

Petitioner does not

something external to the petitioner, something that cannot fairly be attributed to him," Coleman, 501 U.S. at 753 (emphasis in

original), while prejudice is that resulting from the alleged constitutional errors, id. at 750. Unless a petitioner demonstrates excusable cause for his procedural default, a reviewing federal court need not reach the question of prejudice. Engle v. Isaac, 456

U.S. 107, 134 (1982); Smith v. Baldwin, 510 F.3d 1127, 1147 (9th Cir. 2007). Petitioner must therefore make an initial showing that external factors caused his failures to plead with particularity and support his claims with documentary evidence. In the instant case, Petitioner does not identify any

factors, external or otherwise, that caused him to fail to plead his state claims with particularity. Pet.; Traverse. Rather, Petitioner merely reargues his allegations that his constitutional rights were violated. pleadings Id. does The Court's own review of the lodgments and not reveal any external factors that caused

Petitioner's failure to plead with particularity.

Accordingly,

Petitioner has not established cause for his procedural default. See Murray v. Carrier, 477 U.S. at 488; Davis v. Woodford, 384 F.3d 628 (9th Cir. 2004) (petitioner must offer explanation for

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procedural default).

Because Petitioner has not established cause, Engle, 456

the Court need not address the question of prejudice. U.S. at 134; Smith, 510 F.3d at 1147. The Court, therefore, may only reach the

merits

of

Petitioner's habeas claims if, "in light of new evidence, `it is more likely than not that no reasonable juror would have found petitioner guilty beyond a reasonable doubt,'" and whose continued incarceration would therefore constitute a "miscarriage of justice." House v. Bell, 547 U.S. 518, 519, 536 (2006)(citing Schlup v. Delo, 513 U.S. 298, 324, 327 (1995)). Petitioner has presented no such

evidence here, nor does he argue that he is actually innocent of the crimes of which he was convicted. The miscarriage of justice

exception to procedural default is therefore inapplicable to this case. In sum, Duvall and Swain provide independent and adequate state procedural grounds for the California Supreme Court's denial of Petitioner's claims. for his procedural As Petitioner neither demonstrates cause nor contends actual innocence, a

default,

reviewing federal court may not look beyond the default to the merits of the petition. Accordingly, this Court RECOMMENDS denying

Petitioner's claim on this ground. C. Sixth Amendment Right to Counsel Respondent's final argument is that the Petition should be denied on the merits because Petitioner does not have a federal right to counsel of his choice. Answer at 9-14.

Petitioner argues that the trial court violated his due process and Sixth Amendment rights by (1) permitting his courtappointed attorney to represent him even though Petitioner had not

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signed a written consent, (2) not continuing the preliminary hearing and trial in order to permit Petitioner to retain counsel of his choice, and (3) not appointing a new lawyer to represent Petitioner due to the inherent conflict and/or break-down in communication between Petitioner and his lawyer. Pet. at 6-8; Traverse at 2-6.

To the extent Petitioner presented these arguments or this claim to a state court, he did so in his habeas petition to the California Supreme Court. Lodgment 3. Because that court summarily denied the petition (Lodgment 4) and Petitioner did not present the argument to any other court, this Court must conduct a de novo review. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002)

(independent review appropriate when state court reaches merits of a specific claim without providing reasoning). 1. On Facts Pertaining to Legal Representation March 10, 2006, Petitioner appeared in court, was

arraigned on the charges filed against him, and requested appointed counsel. Lodgment 1 at 92 (amended minute order). The judge

granted Petitioner's request and appointed the public defender to represent him. Id. The court scheduled the preliminary hearing Id. of a On March 22, 2006, the public defender conflict of interest in representing

for March 22, 2006. notified the court

Petitioner.

Lodgment 1 at 94 (minute order).

The Court appointed

an attorney from the Private Conflicts Counsel ("PCC"), set a readiness hearing for April 3, and a preliminary examination for April 5. Id.

On April 3, 2006, Petitioner advised the court that he wanted a new attorney. Lodgment 1 at 95; Pet. at 9-12. The judge excused

government counsel and the public and conducted an in camera hearing

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with Petitioner and his lawyer.

Id.

Petitioner told the court that

he did not have an individual objection to PCC attorney, Gary Edwards, or to the representation provided by Mr. Edwards, stating "[i]t's nothing personal. It's just the position he's in. He is

appointed by the courts." Pet. at 10-11. Petitioner explained that "any court-appointed attorney will be an automatic conflict of interest because of obligation to the court come before representing me fully as a client in my constitutional rights." Pet. at 10. The

judge explained to Petitioner that all non-retained lawyers are appointed and paid for by the courts. Id. at 11. Petitioner

responded that he wanted to hire a lawyer but admitted that he had not taken any specific action to do so. Id. Based upon this

exchange, the court confirmed the preliminary hearing date but stated that Petitioner could hire an attorney if he desired to do so. Id. at 12. On April 5, 2006, Petitioner's lawyer advised the judge that Petitioner wanted to address the court and request another attorney. Lodgment 5 at 1. Petitioner apparently provided the court with a

written request for a two-week extension of the preliminary hearing. Id. at 2. Petitioner explained to the judge that he wanted to hire

an attorney but admitted that he still had not taken any concrete actions to do so. Id. at 2-3. Based upon this record and the April

3 hearing, the judge denied Petitioner's request for a continuance and stated that the preliminary hearing would proceed that day and the PCC attorney would represent Petitioner. citing the Id. denial at of 3-4. his

Petitioner

vehemently

objected, Id. at 4.

constitutional rights.

The judge began the plea colloquy Id. at 5. A few

with Petitioner's co-defendant, Gakarla Poole.

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minutes later, Petitioner became verbally abusive and repeatedly demanded to be removed from the courtroom. ordered the deputies to gag Petitioner. Id. at 6-7. The judge

Id. at 7.

After accepting Ms. Poole's guilty plea, the judge ordered Petitioner returned to the courtroom.3 Id. at 12. The judge

explained to Petitioner that he had a right to be present during the preliminary hearing but that the right can be forfeited by

inappropriate conduct, such as the conduct Petitioner previously displayed. Id. Using inflammatory and abusive language, Petitioner told the judge that the judge was violating Petitioner's rights by forcing him to be represented by his PCC lawyer and demanded to be removed from the courtroom. Id. at 12-13. The judge instructed the

bailiff to remove Petitioner and proceeded with the preliminary hearing without him. Id. at 13. At the conclusion of the hearing,

the court found probable cause to believe that Petitioner committed the offenses charged in the complaint. Id. at 30.

On June 8, 2006, Petitioner appeared before a new judge for trial. Lodgment 6. At the beginning of the proceeding, Petitioner

told the judge that he had filed a motion and wanted to dismiss his PCC attorney and "be referred to the indigent panel." Id. at 54-56.

The judge excluded the prosecutor and conducted another in camera hearing with Petitioner and his attorney. Id. at 56. Petitioner

explained that he did not want to be represented by the PCC lawyer because he is court-appointed so his loyalty is to the government,

3 The record does not indicate whether Petitioner actually was removed from the courtroom. The judge instructed the deputies to gag Petitioner after Petitioner repeatedly swore at the judge. Lodgment 5 at 7. However, the judge did not order Petitioner removed from the courtroom and Petitioner made a comment during his co-defendant's guilty plea. Id. After the guilty plea, however, the judge told Petitioner that he had Petitioner "brought back" for an additional discussion. Id. at 12.

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rather

than

to

Petitioner,

and Id.

because 57-58.

he

has

not

discussed

Petitioner's case with him.

Gary Edwards, the PCC

lawyer responded that Petitioner had threatened him during the preliminary hearing and had refused to meet with him, talk to him, or return his phone calls after the hearing. Id. at 58-60.

However, Mr. Edwards confirmed that he was familiar with the facts of the case and ready to proceed with trial. Id. at 59. The judge

then clarified with Petitioner that Petitioner's real dispute was with any lawyer appointed by the court and paid by the government, rather than the individual PCC lawyer, and that he was not objecting specifically to representation by Mr. Edwards. Id. at 61. In

response, the judge carefully explained the criminal defense system to Petitioner and attempted to find a solution to Petitioner's representation concerns, which would permit the case to proceed to resolution. Id. at 61-68. Petitioner again became verbally abusive and demanded to be removed from the courtroom. Id. at 65-69. The

judge advised Petitioner that he could be removed from the courtroom if he so desired, but the trial would proceed without him. 68-69. Id. at

Finally, the judge asked Petitioner if he "would like to be I am not The judge

present?" and Petitioner replied "No, I won't be present. going to be represented by this PCC man." Id. at 69.

then directed that Petitioner be removed from the courtroom and proceeded with the hearing. Id. at 69-70.

In an abundance of caution, the court arranged to have Petitioner returned to the courtroom prior to the commencement of trial to verify whether he wished to be present for the trial, but Petitioner refused to exit the holding cell. Id. at 81-85. After

some discussion, the judge decided to ask the bailiffs to forcibly

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transport Petitioner to court so the judge could again advise Petitioner of his constitutional rights, including the right to be present during his trial. Id. at 85-88. Petitioner apparently then decided to return to court voluntarily. Id. at 88. The judge

advised Petitioner that he had the right to be present for his jury trial and to be dressed in non-jail clothing, but that he would have to conduct himself in a respectful manner. Id. at 90-92.

Petitioner refused to answer any of the judge's questions but, in response to the question of whether he wished to talk to his attorney, Petitioner "flipped his attorney the bird." Id. at 92-94. The trial then proceeded without Petitioner's presence. 7-8. 2. Written Consent Lodgments

Petitioner's first argument is that the court violated his rights by forcing him to be represented by an appointed attorney when Petitioner had not provided written consent for the

representation.

Pet. at 6.

In support of his argument, Petitioner

cites to the Rules of Professional Conduct of the California State Bar. Id. This argument is not cognizable on federal review.

When conducting habeas review, a federal court is limited to "deciding whether a conviction violated the Constitution, laws or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68

(1991); 28 U.S.C. § 2254 (§ 2254 habeas review only available "on the ground that [a petitioner] is in custody in violation of the Constitution or laws or treaties of the United States"). Habeas

relief is not available for an alleged error in the interpretation or application of state law. Estelle, 502 U.S. at 67-69. This

Court is therefore precluded from considering Petitioner's claim

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arising

from

an

alleged

violation

of

the

California

Rules

of

Professional Conduct.4

See Little v. Crawford, 449 F.3d 1075, 1082

(9th Cir. 2006) (contention that state court violated state law by failing to inform petitioner of probation term is not cognizable on federal review); Beaty v. Stewart, 303 F.3d 975, 986 (9th Cir. 2002) (claim that state court improperly applied state sentencing law not federally cognizable). 3. Right To Counsel of Choice

Petitioner's next argument is that his constitutional rights were violated because he was denied his right to be represented by an attorney of his choice. Pet. at 6-8; Traverse at 2-5.

The Sixth Amendment guarantees a criminal defendant the right to be represented by effective trial counsel. See, e.g., Powell v.

Alabama, 287 U.S. 45 (1932); Strickland v. Washington, 466 U.S. 668 (1984). As part of this right, a defendant has a qualified right to

choose his preferred trial counsel. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624 (1989). does not have the financial ability If, however, a defendant to hire an attorney and

therefore requires the appointment of counsel, the defendant does not have a right to be represented by appointed counsel of his choice. Id. ("[A] defendant may not insist on representation by an

attorney he cannot afford.") (quoting Wheat v. United States, 486 U.S. 153, 159 (1988)); United States v. Gonzalez-Lopez, 548 U.S.

To the extent that Petitioner may be trying to argue that the lack of written consent violates his Sixth Amendment or other constitutional rights, he fails to provide any legal support for his argument. Moreover, the Court is not aware of any constitutional provision or clearly established Federal law requiring a criminal defendant to agree in writing to his legal representation. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653 (2006) (AEDPA requires an analysis of whether the state court's ruling was contrary to, or an unreasonable application of, a decision of the United States Supreme Court).

4

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140, 151 (2006) ("[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them."). Similarly, while a defendant has a right to be represented by competent counsel, he does not have a right to a "meaningful attorney-client relationship." (1983). Here, the record reflects that Petitioner did not hire an attorney, did not seek to substitute in a retained attorney, and did not indicate that he had the financial ability to hire his own lawyer. Pet. at 9-12; Lodgment 5 at 1-13; Lodgment 6 at 54-70. Morris v. Slappy, 461 U.S. 1, 13

Rather, Petitioner repeatedly objected to the appointed attorney and demanded a new free attorney. Id. Because there is no evidence

that Petitioner had the financial resources to retain a lawyer or that he had identified a lawyer who was willing to represent him, Petitioner required the appointment of counsel and therefore did not have the right to choose his lawyer. Caplin & Drysdale, 491 U.S. at

624; see also Gonzalez v. Knowles, 515 F.3d 1006, 1013 (9th Cir. 2008) (no violation of right to counsel where trial court declined to appoint attorney requested by defendant and who was available and willing to represent defendant). Accordingly, the trial judge did

not violate Petitioner's constitutional rights by rejecting his request to dictate the attorney to be provided to him at the government's expense. Petitioner also argues that the trial court violated his constitutional rights by denying his request to continue the

preliminary hearing and trial in order to provide him additional

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time to obtain counsel.5

The United States Supreme Court recently

reiterated that a trial court retains "wide latitude in balancing the right to counsel of choice against the needs of fairness, and against the demands of its calendar." Gonzalez-Lopez, 548 U.S. at

152; see also Miller v. Blacketter, 525 F.3d 890, 895 (9th Cir. 2008). "As such, trial courts retain the discretion to `make and other decisions that effectively exclude a

scheduling

defendant's first choice of counsel.'" Miller, 525 F.3d at 895, quoting Gonzalez-Lopez, 548 U.S. at 152. In evaluating a similar habeas claim, the Ninth Circuit considered three factors: whether the defendant had retained new counsel, whether current counsel was prepared and competent to proceed forward, and the timing of defendant's request to continue. Miller, 525 F.3d at 896-98. In Miller, the court denied a habeas

petition alleging a violation of the right to counsel where the petitioner requested the continuance the morning that trial was scheduled to begin, petitioner had not yet retained a lawyer, and his appointed lawyer was prepared to represent him. analysis dictates the same result in this case. In the instant case, as in Miller, Petitioner had not retained new counsel at the time he requested the continuances. During the hearing on April 3, 2006, Petitioner told the judge that he had not taken any affirmative action to retain a lawyer and that he was requesting the continuance so that he could continue to look Id. The same

5 While the record does not establish that Petitioner requested a continuance of his trial to obtain a new lawyer, it does reflect that he allegedly submitted a written request and that he wanted a new lawyer. Lodgment 6 at 54-56. Because he did not identify a specific lawyer who was ready to proceed, a new lawyer, whether appointed or retained, would require a continuance of the trial.

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into the possibility of hiring an attorney. at 11.

Lodgment 1 at 95; Pet.

Petitioner confirmed these facts on April 5, 2006, when he

again requested a continuance before the start of the preliminary hearing. Lodgment 5 at 1-4. And, on the morning of trial,

Petitioner requested a referral to the "indigent panel," indicating that he still had not retained a lawyer. Lodgment 6 at 54-56.

Accordingly, there is no evidence that Petitioner had hired a new attorney who was willing and able to proceed with the hearing or trial. Similarly, in both the instant case and Miller, the existing, appointed lawyer was ready and able to represent the defendant. Although Petitioner argued that his lawyer was not prepared to represent him6 (Lodgment 6 at 57-58), the appointed lawyer explained their relationship and his preparation and stated that he was prepared to represent Petitioner at trial (id. at 58-60). Further,

Petitioner repeatedly told the judge that he did not have an objection to the individual lawyer appointed to represent him or any specific aspect of his representation; rather, he stated that his objection was to any court-appointed lawyer because there was an "automatic conflict of interest" when the government that is

prosecuting him also is paying his lawyer. 5 at 1-4; Lodgment 6 at 57-58, 61.

Pet. at 10-12; Lodgment

Finally, Petitioner requested the continuances two days before the preliminary hearing, the morning of the preliminary hearing, and the morning of trial. Pet. at 9-12; Lodgments 5 and 6.

Significantly, Petitioner had approximately two months between the

Notably, Petitioner is not alleging ineffective assistance of counsel in his federal habeas petition. Pet.; Traverse.

6

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preliminary hearing and the trial and yet he did not retain a lawyer. Rather, he waited until the morning of trial to again Lodgement 6 at 54-56. Petitioner does not

request new counsel.

provide any justification for the timing of his requests, other than to reiterate his erroneous belief that there is an inherent conflict with any court-appointed attorney representation and that he

therefore has a right to a new, free attorney obtained from some other source. Lodgments 5 and 6. Accordingly, Petitioner has not Miller, 525 F.3d

provided any justification for his late requests.

at 897-98 (court properly considers timing of request and the justification, if any, for a late request). "[O]nly [a trial court's] unreasonable and arbitrary

`insistence upon expeditiousness in the face of a justifiable request for delay violates the Sixth Amendment." at 897, quoting Morris, 461 U.S. at 11-12. Miller, 525 F.3d

Given all of the facts

of this case, the Court finds that the judges' decisions to deny Petitioner's requests to continue the hearings and trial were neither arbitrary nor unreasonable, that Petitioner's requests were not justifiable, and that the judges did not abuse their discretion by denying Petitioner's requests to continue the preliminary hearing and trial. Morris, 461 U.S. at 12-14 (defendant's Sixth Amendment

rights not violated when trial court refused to continue trial to permit defendant's preferred public defender to represent him); Miller, 525 F.3d at 895-98 (no violation of right to counsel where trial court denied continuance requested morning of trial and new counsel had not yet been retained); Bradley v. Henry, 510 F.3d 1093, 1100 (9th Cir. 2007) (trial court "may deny motion to substitute retained counsel if there is a substantial risk that the delay will

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result in an undue delay of the proceedings"). 3. Alleged Conflict with Counsel

Finally, Petitioner argues that the trial court violated his constitutional rights by refusing to appoint a new attorney to represent "apparent him lack when of there was an inherent between conflict Petitioner and/or and an his

communication" Pet. at 6-8.

appointed attorney.

The Sixth Amendment provides a defendant with the right to be represented by an attorney who does not have an actual conflict of interest. See Holloway v. Arkansas , 435 U.S. 475, 483-84 (1978)

(representation by one attorney of several defendants violates the Sixth Amendment if it presents an actual conflict of interest). If

a defendant raises an actual conflict issue, or the judge knows or reasonably should know of such a conflict, the judge has a duty to inquire into the details of the conflict. Lockhart v. Terhune, 250

F.3d 1223, 1229-30 (9th Cir. 2001) (summarizing Supreme Court decisions). Similarly, if a defendant requests a new attorney on

the grounds that he has a conflict with his attorney that prevents him from receiving his constitutionally-protected representation, the Sixth Amendment requires that the trial court conduct an

"appropriate inquiry" into the allegations before the case proceeds. Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000); Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (same). Here, Petitioner has not established that his lawyer had an actual conflict of interest. Counsel did not represent more than

one defendant and there is no evidence that counsel previously represented another client whose representation conflicted with his representation of Petitioner. Similarly, there is no evidence that

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any aspect of the individual lawyer created an actual conflict. Plumlee, 512 F.3d at 1210 (issue is whether there is an actual, legal conflict). Moreover, Petitioner repeatedly advised the court

that the alleged conflict was not an actual one involving his individual attorney, but one inherent in a system where the court selects and appoints the defense lawyer and government money pays the salaries of both prosecutors and defense lawyers. Pet. at 9-12; Lodgments 5 and 6. To the extent that Petitioner is arguing that his distrust of his attorney created a conflict requiring the appointment of new counsel, the law does not support his argument. In Morris, 461 U.S.

at 13-14, the Supreme Court held that the Sixth Amendment did not guarantee "a meaningful relationship between an accused and his counsel." rejected In interpreting this holding, the Ninth Circuit recently a similar habeas petitioner's argument, finding no

constitutional violation where the Petitioner was "represented by a lawyer free of actual conflicts of interest, but with whom the defendant refuses to cooperate because of dislike or distrust." Plumlee, 512 F.3d at 1211. Accordingly, Petitioner's argument that

he was entitled to a new attorney because he did not trust his appointed lawyer due to the manner in which he was appointed and paid does not constitute a violation of the Sixth Amendment or any other constitutional right. Finally, the court did conduct appropriate inquiries into Petitioner's conflict allegations. In both April and June of 2006,

when Petitioner raised this issue, the presiding judge immediately excluded the prosecutor and conducted an in camera, ex parte inquiry into Petitioner's allegations. Pet. at 9-12; Lodgment 6 at 54-69.

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The judges specifically asked Petitioner whether he objected to the actual representation that he was receiving from his appointed lawyer. Pet. at 10-11; Lodgment 6 at 58-61. In April, Petitioner

confirmed that the alleged conflict involved any lawyer appointed and paid by the government, and not the individual appointed PCC lawyer. Pet. at 10-11. In June, the judge solicited Petitioner's

complaints against the individual lawyer and permitted the lawyer to explain his conduct. Lodgment 6 at 58-60. The judge then opined

that Petitioner's real dispute appeared to be with any lawyer appointed and paid by the government, and not the conduct of his currently-appointed lawyer. Id. at 60-61. Petitioner confirmed Once the trial

that the court's opinion was correct.

Id. at 61.

judge determined that Petitioner's alleged conflict was one inherent in the system, that Petitioner objected to being represented by an attorney who is paid by the same government that was prosecuting him, the judge expended considerable time and effort to explain the system to Petitioner and to assure him that the system could provide him with competent counsel and that there was not an inherent conflict. Id. at 61-68.

However, Petitioner rebuffed the judge's efforts, became verbally abusive, and demanded to be removed from the courtroom. Id. at 65-69. Accordingly, the record establishes that the state

court judges complied with the law by considering Petitioner's conflict claims, conducting an immediate and appropriate inquiry, and properly determining that there was no conflict in counsel's representation of Petitioner that required the appointment of a new lawyer. King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (no

constitutional violation where trial court briefly inquired into

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basis for request for appointment of counsel and then denied it). For the reasons set forth above, the Court finds that the California Supreme Court's denial of Petitioner's claim that his constitutional right to counsel of choice was violated was not contrary to, or an unreasonable application of, clearly established Federal law. This Court therefore RECOMMENDS that Petitioner's

claim for habeas relief be DENIED. CONCLUSION AND RECOMMENDATION In sum, this Court finds that Petitioner has failed to present any evidence suggesting that the California Supreme Court's decision was contrary to, or an unreasonable application of, clearly established federal law. Petitioner made any See 28 U.S.C. § 2254(d). argument that further Nor has factual

supported

development is necessary, such that an evidentiary hearing would be warranted. See 28 U.S.C. § 2254(e)(2) (exceptions where an

evidentiary hearing may be appropriate).

As such, this Court

RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED and the case dismissed with prejudice. For all the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation and (2) directing that Judgment be entered denying the Petition. IT IS HEREBY ORDERED that any written objections to this Report must be filed with the Court and served on all parties no later than August 15, 2008. The document should be captioned

"Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than

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September 5, 2008.

The parties are advised that failure to file

objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Duncan, 158 F.3d 449, 455 (9th Cir. 1998). See Turner v.

DATED:

July 25, 2008

BARBARA L. MAJOR United States Magistrate Judge

COPY TO: HONORABLE IRMA E. GONZALEZ UNITED STATES DISTRICT JUDGE ALL COUNSEL

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