PHYLLIS J. HAMILTON, District Judge.
This is a habeas corpus case filed pro se by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent filed an answer and lodged exhibits with the court. For the reasons set out below, the petition is denied.
In May 2011, petitioner was convicted of first degree felony murder and first degree robbery by a Contra Costa County jury. Clerk's Transcript ("CT") at 337-43. Petitioner was sentenced to 25 years to life in prison and a concurrent 3-year prison term for the robbery count in July 2011. Id.
On April 30, 2012, the California Court of Appeal affirmed the conviction and modified the judgment to reflect that the 3-year prison sentence be stayed to become permanent upon completion of the 25-year-to-life term. Answer, Ex. 7 at 8. On July 11, 2013, petitioner filed a timely habeas petition in this court. Three months later, this court granted petitioner's request to stay the petition while he exhausted a remaining claim in state court. CT at 7. On May 14, 2014, the Supreme Court of California denied his state claim. In re Arias, S217185. On July 3, 2014, this court lifted the stay, reopened the case and ordered respondent to show cause why the petition should not be granted. CT at 12.
The facts relevant to the petition, as described by the California Court of Appeal, are as follows:
People v. Arias, No. A132893, 2012 WL 1492336, at *1 (Cal. Ct. App. April 30, 2012).
A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's 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). The first prong applies both to questions of law and to mixed questions of law and fact, see Williams (Terry) v. Taylor, 529 U.S. 362, 407-09 (2000), while the second prong applies to decisions based on factual determinations, see Miller-El v. Cockrell, 537 U.S. 322, 340 (2003).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d)(1), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry), 529 U.S. at 412-13. A state court decision is an "unreasonable application of" Supreme Court authority, falling under the second clause of § 2254(d)(1), if it correctly identifies the governing legal principle from the Supreme Court's decisions but "unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. Id. at 409.
Under 28 U.S.C. § 2254(d)(2), a state court decision "based on a factual determination will not be overturned on factual grounds unless objectively unreasonable in light of the evidence presented in the state-court proceeding." See Miller-El, 537 U.S. at 340; see also Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000).
The state court decision to which § 2254(d) applies is the "last reasoned decision" of the state court. See Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Barker v. Fleming, 423 F.3d 1085, 1091-92 (9th Cir. 2005). When there is no reasoned opinion from the highest state court to consider the petitioner's claims, the court looks to the last reasoned opinion. See Nunnemaker at 801-06; Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000). The court looks to the California Court of Appeal opinion for the first claim in the petition and to the Contra Costa County Superior Court decision denying the state petition for the second claim.
As grounds for federal habeas relief, petitioner asserts that: (1) the trial court abused its discretion by denying petitioner's request for advisory counsel; and (2) the trial court violated due process by denying his request for a continuance.
Petitioner asserts that the trial court abused its discretion by denying his request for advisory counsel after petitioner elected to proceed pro se.
The California Court of Appeal set forth the following facts:
Arias, 2012 WL 1492336, at *1-3. (Omissions in original).
A defendant in a criminal proceeding has a constitutional right to waive the assistance of counsel if he or she so wishes. Faretta v. California, 422 U.S. 806, 819-20 (1975). A court must ensure that this waiver was made "knowingly and intelligently" so that a litigant is "aware of the dangers and disadvantages of self-representation." Id. at 835. Faretta further provides that it is within a trial court's power to "appoint a `standby counsel' to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant's self-representation is necessary." Id. at 834 n.46. However, this "does not require a trial judge to permit `hybrid' representation." McKaskle v. Wiggins, 465 U.S. 168, 183 (1984) (emphasis added). A pro se defendant who has waived his right to counsel via Faretta "does not have a constitutional right to choreograph special appearances by counsel." Id. Accordingly, it is within a court's discretion to deny a request for advisory counsel. See United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994) (upholding a denial of advisory counsel as within the court's discretion after petitioner was repeatedly dissatisfied with his public defender and insisted upon representing himself); Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983) (ruling that the issue of "hybrid representation is best left to the sound discretion of the trial judge").
It is well established under the Antiterrorism and Effective Death Penalty Act of 1996 that it is not "an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by [the Supreme] Court." Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Knowles v. Mirzayance, 556 U.S. 111, 122 (2009)). See also Wright v. Van Patten, 552 U.S. 120, 125 (2008) (reversing a Seventh Circuit decision granting habeas relief because no Supreme Court case "squarely addresses" the issue in the case); Carey v. Musladin, 549 U.S. 70, 74 (2006) (limiting federal habeas relief to decisions contrary to the "applicable holdings" of the Court). The Supreme Court has never clearly recognized a constitutional right to advisory counsel. In fact, it has expressly stated that no such right exists: a defendant "does not have a constitutional right to choreograph special appearances by counsel." McKaskle, 465 U.S. at 183. As such, petitioner's claim that his federal constitutional rights were violated by a denial of advisory counsel is without merit. This right is simply not recognized, and the denial of it is therefore not an unreasonable application of federal law.
Further, the trial court reasonably denied petitioner's request for advisory counsel. Petitioner argues that the trial court failed to consider the legal complexity of the charges when denying his motion. According to petitioner, he did not adequately defend himself, noting he only cross-examined three of the prosecution's twelve witnesses; only called one witness and the witness was irrelevant to his defense; and clearly did not understand the legal theory of felony murder. However, a defendant takes the "substantial risk" of making errors in his self-representation when he "elects to waive his right to counsel." Locks v. Sumner, 703 F.2d 403, 408 (9th Cir. 1983). Petitioner was repeatedly made aware of the disadvantages of self-representation and cautioned that the trial court would "not be inclined to continue the trial further [without good cause] since it's been set for trial on numerous occasions." RT at 3. The court then asked petitioner if he still wished to proceed "pro per," to which petitioner responded, "Yes, sir." Id. After this exchange, the trial court ensured that petitioner understood the written Faretta waiver that he had signed. RT 3-9. The trial court also noted the prosecutor's arguments regarding petitioner's ability to understand the legal system, demonstrated by his numerous motions and his ability to be a competent advocate for himself. RT at 3-4.
After waiving his right to counsel, petitioner remained adamant in his requests for Mr. Tully to represent him. The Supreme Court has made it clear that a criminal defendant who cannot afford to retain counsel has no right to counsel of his own choosing. See Wheat v. United States, 486 U.S. 153, 159 (1988). Nor is he entitled to an attorney who likes and feels comfortable with him. See United States v. Schaff, 948 F.2d 501, 505 (9th Cir. 1991). The Sixth Amendment merely guarantees the assistance of counsel, not a "`meaningful relationship' between an accused and his counsel." Morris v. Slappy, 461 U.S. 1, 14 (1983). The trial judge gave petitioner ample opportunity after his waiver request to be represented by a public defender, but told petitioner he would not directly appoint Mr. Tully. Instead, petitioner elected to proceed to trial unrepresented. RT at 5-6. The state court did not unreasonably apply federal law because the Supreme Court has ruled that there is no constitutional right to advisory counsel. Even if such a right were recognized, the denial of specific advisory counsel was reasonable for the reasons set forth above. For all these reasons, the claim is denied.
Petitioner next claims that the trial court's denial of his request for a continuance violated due process and the right to a fair trial.
The record indicates that petitioner made two requests for a continuance. On February 16, 2011, the trial court granted one request for a continuance "due to discovery
Generally, "broad discretion must" be given to trial courts on "matters of continuances." Morris v. Slappy, 461 U.S. 1, 11 (1983). To establish a constitutional violation based on the denial of a continuance motion, a petitioner must show that the trial court abused its discretion through an "unreasoning and arbitrary insistence upon expeditiousness in the face of a justifiable request for delay." Id. at 11-12 (internal quotation marks omitted). There are no "mechanical tests" that elucidate when a denial of a continuance is "so arbitrary as to violate due process." Ungar v. Sarafite, 376 U.S. 575, 589 (1964). A court can only determine that there has been an abuse of discretion, "`after carefully evaluating all relevant factors'" and concludes "`that the denial was arbitrary or unreasonable.'" Armant v. Marquez, 772 F.2d 552, 556 (9th Cir. 1985) (quoting United States v. Flynt, 765 F.2d 1352, 1358 (9th Cir. 1985)). The improper denial of a requested continuance warrants habeas relief only if the trial court's refusal to grant a continuance resulted in actual prejudice to petitioner. Id. See also Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997).
Petitioner argues that denying his request for a continuance barred him from addressing discovery issues, which rendered him unprepared for trial. If petitioner was unprepared for trial, the trial court's ruling did not cause his unpreparedness. The trial court granted petitioner's first request for a continuance to allow for discovery issues to be addressed; an entirely reasonable exercise of discretion. Petitioner subsequently renewed his request for a continuance seeking information that was either already provided to him, or information unimportant to his defense. However, it is clear from the record that these discovery issues were not the fault of the prosecution or the trial court, but rather a result of petitioner's choice to proceed pro se. Petitioner's investigator had been provided with all relevant documents by the prosecution. RT at 23. In effect, there were no discovery issues pertinent to petitioner's defense. Petitioner's unpreparedness was a direct result of his choice of self-representation, despite being warned repeatedly of its drawbacks. RT at 3-9. The court was well within its discretion when it denied the second request and answered for any remaining issues by providing petitioner with the equipment necessary to view the improperly formatted files. RT at 15-24. Considering this record, the trial court did not arbitrarily deny the continuance motion, as is required for habeas relief. Armant, 772 F.2d at 556. There was no justifiable reason for the delay, as petitioner had access to all discovery materials necessary to conduct his defense. As such, the trial court reasonably denied petitioner's request for a continuance and he is not entitled to habeas relief.
Further, petitioner does not adequately demonstrate how the denial of his motion for a continuance prejudiced his defense. The Ninth Circuit has explicitly stated that at least this much is required of petitioner in order to grant habeas relief on these grounds. Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997). Petitioner asserts that his defense was prejudiced, noting that he did not make an opening statement, called forth no helpful witnesses, and only cross-examined three out of the prosecution's twelve witnesses. Traverse at 8. Again, this evidence is more a direct result of petitioner's choice to represent himself than it is the fault of the trial court. These facts are also unrelated to the specific reasons petitioner was seeking the continuance. Petitioner wanted more time to prepare potential material for litigation that he had not received yet from the prosecution. Once it was discovered that this material was either available to him or did not exist entirely, petitioner should have prepared his defense accordingly.
Lastly, petitioner asserts that he was "still receiving discovery after the trial commenced, which proves the prosecution manipulated the record and the court" as evidence of prejudice. Traverse at 8. However, petitioner concedes that "the record does not show, and this court is not aware" of this fact. Id. Conclusory allegations are insufficient to support a collateral attack on a conviction. James v. Borg, 214 F.3d 20, 26 (9th Cir. 1994). ("[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."). This allegation has not been raised previously and is uncorroborated by any external evidence. As such, it cannot warrant habeas relief.
Accordingly, the denial of petitioner's request for a continuance was neither a result contrary to, nor an unreasonable application of clearly established Supreme Court law. This claim is denied.
The petition for writ of habeas corpus is
