Filed: Dec. 20, 2019
Latest Update: Mar. 03, 2020
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY EUGENE ESTEP, No. 18-35196 Petitioner-Appellant, D.C. No. 1:15-cv-00530-CWD v. MEMORANDUM* KEITH YORDY, Warden, Respondent-Appellee. Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding Argued and Submitted November 8, 2019 Seattle, Washington Before: GOULD and NGUYEN, Circuit Judges, and PRESNE
Summary: NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TIMOTHY EUGENE ESTEP, No. 18-35196 Petitioner-Appellant, D.C. No. 1:15-cv-00530-CWD v. MEMORANDUM* KEITH YORDY, Warden, Respondent-Appellee. Appeal from the United States District Court for the District of Idaho Candy W. Dale, Magistrate Judge, Presiding Argued and Submitted November 8, 2019 Seattle, Washington Before: GOULD and NGUYEN, Circuit Judges, and PRESNEL..
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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY EUGENE ESTEP, No. 18-35196
Petitioner-Appellant, D.C. No. 1:15-cv-00530-CWD
v.
MEMORANDUM*
KEITH YORDY, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Idaho
Candy W. Dale, Magistrate Judge, Presiding
Argued and Submitted November 8, 2019
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District
Judge.
Timothy Estep (“Estep”) appeals the district court’s denial of his petition for
writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
We granted a certificate of appealability as to whether the state trial court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
violated Appellant’s constitutional rights when it denied his request for
self-representation under Faretta v. California,
422 U.S. 806 (1975). Under the
Antiterrorism and Effective Death Penalty Act, “‘relief may be granted only if 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,’ or if the state court decision rests on ‘an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’” Tamplin v.
Muniz,
894 F.3d 1076, 1082 (9th Cir. 2018) (quoting 28 U.S.C. § 2254(d)(1), (2)).
We review the “last reasoned state court opinion,” here, the decision of the Idaho
Court of Appeals.
Id.
At a hearing in state court on June 9, 2011, Appellant made what appeared to
be a request for self-representation. Rather than proceed with a Faretta colloquy, the
Court was concerned about Appellant’s ability to represent himself and ordered a
competency evaluation.
The Court’s concern with Appellant’s competence to represent himself
continued until a hearing on November 26, 2012, when Appellant’s counsel
informed the Court, in Appellant’s presence, that Appellant did not want to proceed
pro se. On the morning of trial two weeks later, Appellant requested that he be tried
in absentia, stating “I’ll trust [counsel’s] abilities to defend me.”
Appellant appealed his conviction to the Idaho Court of Appeals, arguing that
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the trial court denied him his constitutional right to self-representation. In denying
his appeal, the appellate court found that Appellant’s initial request to proceed pro
se was equivocal, and alternatively that prior to trial he waived and abandoned his
request to proceed pro se. Appellant then appealed to the Idaho Supreme Court,
which denied his petition for review in a summary order. On habeas review in federal
court, the district court held that the Idaho Court of Appeals reached an objectively
reasonable decision on the self-representation issue.
Appellant challenges the state court’s finding that the June 9, 2011
self-representation request was equivocal. Appellant also contests the state court’s
determination that he subsequently waived or abandoned his Faretta right and the
finding that he was not competent to represent himself. Regardless of whether the
June 9, 2011 request was equivocal, Appellant waived that request during the
November 26, 2012 hearing. At that hearing, Appellant’s attorney informed the trial
court that Appellant did not want to proceed pro se, but instead wanted another
attorney. The appellate court determined that Appellant’s failure to refute the
statement withdrew his pending request to proceed pro se and waived any previous
requests made up to that point.1
1
The court further held that Appellant abandoned his subsequent request to
proceed pro se by failing to pursue it when the trial court addressed pretrial matters
and instead endorsed his attorney’s ability to adequately represent him in his
absence.
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The Idaho court did not make an unreasonable determination of the facts
regarding Appellant’s waiver of his Faretta request. “[O]nce a defendant has stated
his request clearly and unequivocally and the judge has denied it in a[n] equally clear
and unequivocal fashion, the defendant is under no obligation to renew the motion.”
United States v. Arlt,
41 F.3d 516, 523 (9th Cir. 1994) (citing Brown v. Wainwright,
665 F.2d 607, 612 (5th Cir. 1982)). However, when a request to proceed pro se has
not been clearly and conclusively denied and the question of self-representation is
left open for possible further consideration, the right may be waived through
subsequent conduct.
Brown, 665 F.2d at 611. Accordingly, since a Faretta request
can be subsequently waived, and since Appellant’s conduct indicated he had
abandoned his request to proceed pro se, the Idaho court did not violate clearly
established federal law.
AFFIRMED.
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