MICHAEL M. ANELLO, District Judge.
Petitioner Chad Duane Long, a state prisoner proceeding pro se with a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet."), challenges his 2015 convictions in San Diego Superior Court case os. SCD259571 for assault by means likely to produce great bodily injury, corporal injury to a spouse, and battery, as well as various enhancements. (Pet., ECF No. 1.) The Court has read and considered the Petition, [ECF No. 1], the Answer and Memorandum of Points and Authorities in Support of the Answer [ECF No. 9], the lodgments and other documents filed in this case, and the legal arguments presented by both parties. For the reasons discussed below, the Court
This Court gives deference to state court findings of fact and presumes them to be correct; Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1) (West 2006); see also Parle v. Fraley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from these facts, are entitled to statutory presumption of correctness). The state appellate court recounted the facts as follows:
(Lodgment No. 7, ECF No. 10-14 at 3.)
On July 9, 2015, the San Diego County District Attorney's Office filed an amended information charging Chad Duane Long with one count of attempted murder, a violation of California Penal Code §§ 187(a)/664 (count one), assault by means likely to produce great bodily injury, a violation of California Penal Code § 245(a)(4) (count two), one count of corporal injury to a spouse, a violation of California Penal Code § 273.5(a) (count three), once count of making a criminal threat, a violation of California Penal Code § 422 (count four), one count of attempting to dissuade a witness, a violation of California Penal Code § 136.1(b)(1) (count five), and one count of battery, a violation of California Penal Code § 242 (count six). (Lodgment No. 3, ECF No. 10-9 at 0006-09.) As to counts one through three, the amended information also alleged that Long personally inflicted great bodily injury under circumstances involving domestic violence, within the meaning of California Penal Code § 12022.7(e), personally inflicted great bodily injury, within the meaning of California Penal Code § 12022.7(a), and that he intended to commit great bodily injury within the meaning of California Penal Code §§ 667(e)(2)(C)(iii) and 1170.12(c)(2)(C)(iii). (Id.) Counts one and five were later dismissed by the state court. (Id.)
Following a jury trial, Long was convicted of count two, assault by means likely to produce great bodily injury, count three, corporal injury to a spouse, and count six, battery. (Id., ECF No. 10-10 at 39-44.) The jury also found true the allegations associated with those counts. (Id.) He was found not guilty of count four, making a criminal threat. (Id.) Long was sentenced to 25 years-to-life plus 14 years. (Id. at 175.)
Long appealed his conviction. (Lodgment Nos. 4-6, ECF Nos. 10-11-10-13.) The California Court of Appeal affirmed his conviction in a written, unpublished opinion. (Lodgment No. 7, ECF No. 10-14.) Long thereafter filed a petition for review in the California Supreme Court. (Lodgment No. 8, ECF No. 10-15.) The California Supreme Court denied the petition for review without citation of authority. (Lodgment No. 9, ECF No. 10-16.)
Long filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court on November 20, 2017. (ECF No. 1.) Respondent filed an Answer and Memorandum of Points and Authorities in Support of the Answer ("Answer") on March 12, 2018. (ECF No. 9.) Long filed a Traverse on July 11, 2018. (ECF No. 12.)
Long alleges in his Petition that he was improperly denied his federal constitutional right to represent himself. (Pet., ECF No. 1 at 6, 10-15.) Respondent contends the state court's denial of the claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (Answer, ECF No. 9.)
This Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997). Under AEDPA, a habeas petition will not be granted with respect to any claim adjudicated on the merits by the state court unless that adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of clearly established federal law; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early v. Packer, 537 U.S. 3, 8 (2002). In deciding a state prisoner's habeas petition, a federal court is not called upon to decide whether it agrees with the state court's determination; rather, the court applies an extraordinarily deferential review, inquiring only whether the state court's decision was objectively unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004).
A federal habeas court may grant relief under the "contrary to" clause if the state court applied a rule different from the governing law set forth in Supreme Court cases, or if it decided a case differently than the Supreme Court on a set of materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002). The court may grant relief under the "unreasonable application" clause if the state court correctly identified the governing legal principle from Supreme Court decisions but unreasonably applied those decisions to the facts of a particular case. Id. Additionally, the "unreasonable application" clause requires that the state court decision be more than incorrect or erroneous; to warrant habeas relief, the state court's application of clearly established federal law must be "objectively unreasonable." See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). The Court may also grant relief if the state court's decision was based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the last reasoned state court decision and presumes it provides the basis for the higher court's denial of a claim or claims. See Ylst v. Nunnemaker, 501 U.S. 797, 805-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled on other grounds by Andrade, 538 U.S. at 75-76); accord Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Clearly established federal law, for purposes of § 2254(d), means "the governing principle or principles set forth by the Supreme Court at the time the state court renders its decision." Andrade, 538 U.S. at 72.
Long contends he was denied his federal constitutional right to represent himself as expressed in Faretta v. California, 422 U.S. 806 (1975.) Long's first request to represent himself was granted on December 4, 2015. (Lodgment No. 3, ECF No. 10-10 at 298.) The public defender's office was reappointed to represent him on March 4, 2015 at Long's request. (Id. at 304.) About a week before his trial was scheduled to begin, Long asked for and received a Marsden
(Lodgment No. 2, ECF No. 10-8 at 16-17.)
After the prosecutor reentered the courtroom, Long was arraigned on an amended information. (Lodgment No. 2, ECF No. 10-1 at 11.) The state court judge does not appear to have considered Long's statement, "I would like to go pro to see if that's possible," as an invocation of Faretta.
Long raised his Faretta claim in the petition for review he filed in the California Supreme Court on direct appeal. (Lodgment No. 8, ECF No. 9-15.) The state supreme court denied the petition without citation of authority. (Lodgment No. 9, ECF No. 10-16.) Thus, this Court must "look through" to the state appellate court's opinion denying the claim as the basis for its analysis. Ylst, 501 U.S. at 805-06. Applying California law that is consistent with United States Supreme Court law, that court wrote:
(Lodgment No. 7, ECF No. 10-14 at 4-11.)
The Sixth Amendment to the United States Constitution guarantees a defendant in a criminal case the right to be represented by counsel. Faretta, 422 U.S. at 807. The Sixth and Fourteenth Amendments also guarantee a defendant the right to represent himself, but in order to invoke this right, a defendant must waive his Sixth Amendment right to counsel and the waiver must be "knowing, voluntary and intelligent." See Iowa v. Tovar, 541 U.S. 77, 88-89 (2004) (citing Faretta, 422 U.S. at 806); see also Faretta, 422 U.S. at 835. A defendant's Faretta request must also be timely, unequivocal and not made for purposes of delay. Sandoval v. Calderon, 241 F.3d 765, 774 (9th Cir. 2001). The Ninth Circuit considers three factors when determining whether a Faretta request is unequivocal: "the timing of the request, the manner in which the request was made, and whether the defendant repeatedly made the request." Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007). A state court's conclusion that a defendant's Faretta request was equivocal is a factual determination entitled to "significant deference" under 28 U.S.C. § 2254(e)(1). Id.; see also Woods v. Sinclair, 764 F.3d 1109, 1123 (9th Cir. 2014).
During the Marsden hearing, Long expressed his concern that his attorney was overwhelmed, was inexperienced, and was not communicating with him. (Lodgment No. 2, ECF No. 10-8 at 3-16.) Long also told the judge he believed his attorney had been tainted by a judge's statement that Long was guilty following the preliminary hearing. (Id. at 16.) The judge denied Long's Marsden motion and expressed his concern about Long's psychiatric state and his inability to see that his attorney was providing excellent representation. (Id. at 13-16.) Long then made the statement, "I would like to go pro to see if possible." (Id. at 16.)
The state court considered the three factors outlined in Stenson in its determination that, assuming Long's statement was a request to represent himself, the request was not unequivocal and the record supports the state court's conclusions. As to the timing of Long's request, the state court found it was "a fleeting comment, made immediately following his Marsden hearing, and it apparently went unnoticed by everyone in the hearing." (Lodgment No. 7, ECF No. 10-14 at 7.) The Ninth Circuit has held that when the record shows a request for self-representation was made as an emotional or impulsive response to a court ruling, the request is not unequivocal. Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990). In Jackson, the defendant responded to the trial court's denial of his Marsden motion by saying, "Hey, I don't see why [the motion for substitute counsel] isn't granted. I'm doing the filing of the motion [for a new trial]. What good is [appointed trial counsel] doing for me now? I want to fight in pro per then. Relieve him and I do this myself." Id. at 889. Similarly, Long stated to the judge, "I'm glad to enlighten you on a lot of things going on. I wish you could have seen it my way," just before making his statement, "I would like to go pro to see if that's possible." (Lodgment No. 2, ECF No. 10-8 at 16.)
The state appellate court also considered "the manner in which the request was made." Stenson, 504 F.3d at 882. As the state court correctly noted, Long's statement, "I would like to go pro to see if that's possible" is not an "unmistakable articulation of a request to represent himself." (Lodgment No. 7, ECF No. 10-14 at 7.) As an initial matter, it is not clear to this Court that Long's phrase "go pro to see" meant "go pro se." Indeed, no one in the courtroom, including Long's attorney, appears to have considered Long's statement, "I would like to go pro to see if that's possible," to be a Faretta invocation. Moreover, Long had previously successfully invoked his Faretta rights and thus knew the correct terminology to use. (See Lodgment No. 3, ECF No. 10-10 at 298.) At that time, Long's attorney told the court that Long had "made it very clear that he wants to represent himself." (Lodgment No. 1, ECF No. 10-1 at 3.)
Finally, the state appellate court considered "whether the defendant repeatedly made the same request." Stenson, 504 F.3d at 882. As the state court correctly noted, "when the issue of his representation came up later in the [hearing that followed the Marsden hearing], Long did not mention his alleged desire to represent himself." (Lodgment No. 7, ECF No. 10-14 at 7.) Following the court's denial of Long's Marsden request, Long was arraigned on an amended information. (Lodgment No. 2, ECF No. 10-1 at 11.) The state court judge asked if the public defender's office would remain appointed in Long's case, and the public defender who was present responded "Yes, your Honor," and specifically stated that Long "wish[ed] to proceed with court appointed counsel from my office." (Id.) Long did not object. (Id.)
Long argued in state court, as he does here, that the trial court was required to hold a Faretta hearing after he made his statement, "I would like to go pro to see if that's possible." (Lodgment No. 7, ECF No. 10-14 at 8.) The state appellate court, however, correctly concluded that a Faretta hearing is not required until a defendant makes an unequivocal request to represent himself. United States v. Rice, 776 F.3d 1021, 1025 (9th Cir. 2015); see also United States v. Farias, 618 F.3d 1049, 1051-21 (9th Cir. 2010) ("Once a defendant makes an unequivocal request to proceed pro se, the court must hold a hearing — commonly known as a Faretta hearing — to determine whether the defendant is knowingly and intelligently forgoing his right to appointed counsel.") And, the state court's alternative holding, that Long abandoned any Faretta request by failing to ask for self-representation again, was also consistent with federal law. See Patterson v. Asuncion, 2018 WL 1323624 (9th Cir. 2018) (pet. for cert. filed June 19, 2018) (finding the state court did not unreasonably apply Faretta when it concluded a defendant abandoned his motion for self-representation and citing Sandoval v. Calderon, 241 F.3d 765, 775 (9th Cir. 2001) as support).
The state court's denial of Long's Faretta claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. Bell, 535 U.S. at 694. Nor was the state court's decision based on an unreasonable determination of the facts. 28 U.S.C. § 2254(e)(1). Long is not entitled to relief as to his claim.
For the foregoing reasons, the Court
