REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
CHARLES F. EICK, Magistrate Judge.
This Report and Recommendation is submitted to the Honorable Beverly Reid O'Connell, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on September 12, 2013. Petitioner represented himself in the state trial court, and makes a single claim herein. Petitioner claims that the trial court erred by refusing to appoint advisory counsel (Petition, p. 5).
Respondent filed an Answer on December 9, 2013. Petitioner did not file a Reply within the allotted time.
BACKGROUND
Following a jury trial, Petitioner was convicted of multiple offenses and received a fourteen year prison sentence (Reporter's Transcript ["R.T."] 1520-24, 1530-32; Clerk's Transcript ["C.T."] 351-55; 359-63). The California Court of Appeal affirmed the judgment in a reasoned decision (Respondent's Lodgment 6; see People v. Luna, 2012 WL 1492837 (Cal. App. Apr. 30, 2012).1 The California Supreme Court denied Petitioner's petition for review summarily (Respondent's Lodgment 8).
FACTS
The following summary is taken from the decision of the California Court of Appeal in People v. Luna, 2012 WL 1492837 (Cal. App. Apr. 30, 2012). See Slovik v. Yates, 556 F.3d 747, 749 n.1 (9th Cir. 2009) (taking factual summary from state appellate decision).
Following his felony arraignment, defendant elected to represent himself throughout the proceedings in his case. (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45 L.Ed.2d 562].) Prior to trial, defendant filed a "Notice to Appoint Advisory Counsel," in which he stated his reasons for seeking advisory counsel: "The motion will be made on the grounds that advisory counse[l] can help guide [sic] through the legal due process of trial and will be able to expedite the pretrial process by helping `Pro Per' in the proper procedure to challenge evidence presented at trial. Advisory counsel will be able to interview witnesses that Pro Per does not have access to. `Pro per' has limited time at law library and cannot properly prepare all motions afforded him in [a] timely fashion [sic] an advisory counsel will be able to aid in this area. `Pro Per' needs advise [sic] on whether to proceed as `Pro Per' is prudent and what his options are."
At a pretrial conference on May 27, 2010, Judge Rand S. Rubin denied defendant's motion, stating: "There's no advisory counsel appointed in this court, so the request is denied. You can either be pro per or you can have counsel."2
At the conclusion of a Pitchess3 hearing on June 18, 2010, the court announced it would arrange for standby counsel to be present for defendant at the next court date. On August 4, 2010, with standby counsel present, the court heard and denied defendant's motions to suppress evidence and to set aside the information. Defendant then had a discussion with the court as to how he was to be provided certain discovery he had requested from the People while he was in jail.
"The Court: Standby counsel maybe could take it.
"[Defendant]: That's the reason I wanted advisory counsel was —
"The Court: No. There's no advisory counsel. You're the attorney. I don't have to appoint advisory counsel to pick up the discovery from the People.
"[Defendant]: I wanted advisory counsel so she could — when I was cross-examining my own self or direct examining my own self, for confusion of that nature, and for some kind of a — a — a guidance on the issues of — out of — how to build foundation on evidence. I'm learning, and I'll learn by the time I go to trial, because I'm going to go to trial. . . ."
Later, during an ex parte hearing, defendant renewed his request for advisory counsel so he could benefit from "actual guidance" during trial.
"The Court: You don't get to have an attorney give you guidance. You're the attorney.
"[Defendant]: Yes. I understand I'm the attorney, but I believe that you still have the discretion. You have the discretion of determining if I should have an advisory counsel.
"The Court: My discretion is that you don't. Okay."
Jury trial commenced on November 10, 2010, and standby counsel was present for defendant throughout the trial.
(Respondent's Lodgment 6, at pp. 5-6; People v. Luna, 2012 WL 1492837, at *2-3) (footnotes renumbered).
STANDARD OF REVIEW
Under the "Antiterrorism and Effective Death Penalty Act of 1996" ("AEDPA"), a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody 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 (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." 28 U.S.C. § 2254(d); Woodford v. Visciotti, 537 U.S. 19, 24-26 (2002); Early v. Packer, 537 U.S. 3, 8 (2002); Williams v. Taylor, 529 U.S. 362, 405-09 (2000).
"Clearly established Federal law" refers to the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision on the merits. Greene v. Fisher, 132 S.Ct. 38, 44 (2011); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). A state court's decision is "contrary to" clearly established Federal law if: (1) it applies a rule that contradicts governing Supreme Court law; or (2) it "confronts a set of facts . . . materially indistinguishable" from a decision of the Supreme Court but reaches a different result. See Early v. Packer, 537 U.S. at 8 (citation omitted); Williams v. Taylor, 529 U.S. at 405-06.
Under the "unreasonable application prong" of section 2254(d)(1), a federal court may grant habeas relief "based on the application of a governing legal principle to a set of facts different from those of the case in which the principle was announced." Lockyer v. Andrade, 538 U.S. at 76 (citation omitted); see also Woodford v. Visciotti, 537 U.S. at 24-26 (state court decision "involves an unreasonable application" of clearly established federal law if it identifies the correct governing Supreme Court law but unreasonably applies the law to the facts). A state court's decision "involves an unreasonable application of [Supreme Court] precedent if the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply, or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. at 407 (citation omitted).
"In order for a federal court to find a state court's application of [Supreme Court] precedent `unreasonable,' the state court's decision must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003) (citation omitted). "The state court's application must have been `objectively unreasonable.'" Id. at 520-21 (citation omitted); see also Waddington v. Sarausad, 555 U.S. 179, 190 (2009); Davis v. Woodford, 384 F.3d 628, 637-38 (9th Cir. 2004), cert. dism'd, 545 U.S. 1165 (2005). "Under § 2254(d), a habeas court must determine what arguments or theories supported, . . . or could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court." Harrington v. Richter, 131 S.Ct. 770, 786 (2011). This is "the only question that matters under § 2254(d)(1)." Id. (citation and internal quotations omitted). Habeas relief may not issue unless "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the United States Supreme Court's] precedents." Id. at 786-87 ("As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement."). "AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Burt v. Titlow, 134 S.Ct. 10, 16 (2013). In applying these standards, the Court looks to the last reasoned state court decision, here the decision of the California Court of Appeal. See Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008).
Additionally, federal habeas corpus relief may be granted "only on the ground that [Petitioner] is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). In conducting habeas review, a court may determine the issue of whether the petition satisfies section 2254(a) prior to, or in lieu of, applying the standard of review set forth in section 2254(d). Frantz v. Hazey, 533 F.3d 724, 736-37 (9th Cir. 2008) (en banc).
DISCUSSION
The California Court of Appeal rejected on the merits Petitioner's challenge to the trial court's refusal to appoint advisory counsel (Respondent's Lodgment 6, at p. 6-8; see People v. Luna, 2012 WL 1492837, at *3-4). The Court of Appeal initially observed that Petitioner had no constitutional right to the appointment of advisory counsel (Respondent's Lodgment 6, at p. 6-7; see People v. Luna, 2012 WL 1492837, at *3). Applying California state law, however, the Court of Appeal found that the trial court had erred by denying Petitioner's motions for advisory counsel summarily rather than after having exercised discretion (Respondent's Lodgment 6, at p. 7; see People v. Luna, 2012 WL 1492837, at *4). Even so, the Court of Appeal deemed this state law error harmless, inferring from the record "that had the [trial] court exercised its discretion in denying [Petitioner's] request for advisory counsel, such exercise would not have been an abuse of discretion" (Respondent's Lodgment 6, at pp. 7-8, see People v. Luna, 2012 WL 1492837, at *4).
The Court of Appeal's rejection of Petitioner's constitutional claim was not unreasonable. In the Ninth Circuit, "a defendant who waives his right to counsel does not have a right to advisory counsel." United States v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010) (citations omitted); see also United States v. Mendez-Sanchez, 563 F.3d 935, 947 (9th Cir.), cert. denied, 558 U.S. 900 (2009) ("there is no right to the assistance of standby counsel") (citations omitted);4 Locks v. Sumner, 703 F.2d 403, 407-08 & n.3 (9th Cir.), cert. denied, 464 U.S. 933 (1983) (self-represented defendant has no right to advisory counsel); see also People v. Moore, 51 Cal.4th 1104, 127 Cal.Rptr.3d 2, 253 P.3d 1153 (2011), cert. denied, 132 S.Ct. 780 (2011) ("a defendant has no right, under either the federal or state Constitution, to `hybrid representation'") (footnote omitted).
Moreover, the United States Supreme Court has never held that a self-represented defendant has a constitutional right to advisory counsel. See McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (trial court is not required "to permit "hybrid" representation; a defendant "does not have a constitutional right to choreograph special appearances by counsel"); Simpson v. Battaglia, 458 F.3d 585, 597 (7th Cir. 2006) (no Supreme Court precedent establishes a right to standby counsel); Snipes v. Tilton, 2009 WL 7481212, at *37 (S.D. Cal. Jan. 27, 2009), adopted, 2011 WL 766599 (S.D. Cal. Feb. 25, 2011) ("there is no clearly established Supreme Court law establishing Snipes' right to advisory counsel") (citation omitted).
To the extent Petitioner contends the trial court's refusal to appoint advisory counsel violated California state law, such contention cannot entitle Petitioner to federal habeas relief. In conducting habeas review, a federal court is limited to determining whether the state court(s) violated the constitution, laws or treaties of the United States. Estelle v. McGuire, 502 U.S. 62, 68 (1991). Federal habeas relief is not available for an error in the interpretation or application of state law. Id. at 67-68; see also Swarthout v. Cooke, 131 S.Ct. 859, 861 (2011); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
Because the Court of Appeal's decision was not "contrary to, or an unreasonable application of, any clearly established Federal law as determined by the Supreme Court of the United States," Petitioner is not entitled to federal habeas relief. See 28 U.S.C. § 2254(d); Harrington v. Richter, 131 S. Ct. at 786; see also Moses v. Payne, 555 F.3d 742, 758-59 (9th Cir. 2009) (habeas relief unavailable where the Supreme Court has articulated no "controlling legal standard" on the issue presented).
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition with prejudice.
