Qahhaz v. Gibson

Filing 21

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 11/25/14 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Garland E. Burrell. Objections due within 14 days. (Plummer, M)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

WAEL QAHHAZ,

12
13
14

No. 2:13-cf-2338 GEB DAD P

Petitioner,
v.
CONNIE GIBSON, Warden,

15

FINDINGS AND RECOMMENDATIONS

Respondent.

16
17

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus

18

pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him

19

on October 21, 2013, in the Solano County Superior Court on charges of two counts of forcible

20

penetration with a foreign object. He seeks federal habeas relief on the grounds that the evidence

21

introduced at his trial was insufficient to support the conviction and the trial court violated his

22

Sixth Amendment rights when it failed to hold a hearing after he requested the appointment of

23

substitute counsel. Upon careful consideration of the record and the applicable law, the

24

undersigned will recommend that petitioner’s application for habeas corpus relief be denied.

25

I. Background

26

In its unpublished memorandum and opinion affirming petitioner’s judgment of

27

conviction on appeal, the California Court of Appeal for the First Appellate District provided the

28

following factual summary:
1

1

Defendant Wael R. Qahhaz, a visitor in the 72–year–old victim’s
apartment, suddenly surprised her while she was preparing tea. He
sexually assaulted her multiple times as they struggled throughout
the apartment and she tried to escape from him.

2
3

A jury found defendant guilty of two counts of forcible penetration
with a foreign object (Pen. Code, § 289) and found true certain
enhancement allegations. The court found true defendant had
suffered a prior serious felony conviction for making criminal
threats. Defendant was sentenced to 67 years to life in prison. On
appeal, defendant's arguments include claims of Marsden1 error,
denial of his right to testify, instructional error, evidentiary error,
insufficiency of the evidence to prove the prior conviction, and
abuse of discretion in denying a Romero2 motion to dismiss the
prior strike conviction. As we explain below, we reject defendant’s
contentions and affirm the judgment.

4
5
6
7
8
9

STATEMENT OF THE CASE
10
By amended information, defendant was charged with two counts
of forcible sexual penetration with a foreign object on S.J. (Pen.
Code, § 289, subd. (a)(1).)3 The information also alleged that
defendant reasonably should have known that the victim was 65
years old or older, and that he committed the second offense during
the commission of a first degree burglary with intent to commit
sexual penetration. (§§ 667.9, subd. (a), 667.61, subds. (a) & (d).)
Finally, the information alleged that defendant had a prior strike
conviction. (§§ 667, subd. (a), 1170.12, subds. (a)–(d)/ 667, subds.
(b)–(i).) Jury trial commenced April 12, 2010, and concluded April
19, 2010 with guilty verdicts and true findings on all charges and
allegations.

11
12
13
14
15
16
17

On October 21, 2010, the court sentenced defendant to 67 years to
life in state prison. Defendant timely appeals.

18
STATEMENT OF FACTS
19
In 2009, S.J. lived alone in a one–bedroom apartment located in a
senior citizen housing complex in Vallejo. Defendant, whom she
knew as Willy, also lived in the complex, and S.J. would see him
around the complex and say hello to him. Defendant visited S.J. in
her apartment twice in the two weeks before September 21. She
told defendant she was 72, and defendant said he was 56. During
both of those visits, defendant offered to rub her neck, but S.J.
declined. There was no physical contact between them. Defendant
was a one–legged amputee who used an electric wheelchair.

20
21
22
23
24
25
1

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

2

People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

3

Unless otherwise indicated, all statutory references are to the Penal Code.

26
27
28

2

1

Prosecution Case

2

On September 21, 2009, between 5:00 and 5:30 p.m., defendant
rang S.J.’s doorbell and asked her if he could come in. She was
reluctant to let him in because she had been feeling sad, as
September 21 is her deceased son’s birthday. Defendant said he
would stay just a few minutes, so she let him in.

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

S.J. was in the kitchen making tea when, all of a sudden, she felt
herself being pulled back hard by the belt of her slacks. She fell
into defendant’s lap and both fell to the floor as the wheelchair
tipped over. S.J. was on her back and they “wrestled for a little
bit.” Defendant “was trying to kiss me, and I was trying to keep my
mouth closed, and I bit myself” on the lip. Defendant kept saying,
“I wanna come, I wanna come,” while S.J. kept saying “Stop. Stop.
Please, no.” Defendant pulled S.J.’s pants down and very
“forceful[ly]” “inserted his hand into my vagina . . . one finger in
the vagina and one in the anus.” Defendant kept his fingers inside
her, “moving, moving” them for about half a minute. He cut her
vagina with his fingernails, causing her to bleed and feel pain. He
was very strong, much stronger than she was. At some point,
defendant removed the shorts he was wearing. After penetrating
her digitally, he put hand lotion from her kitchen counter on his
penis and around her vagina. He was on top of her and his face was
red and full of perspiration. S.J. punched him in the face.
Somehow, S.J. was able to get away from defendant by scooting
backwards on her elbows and standing up. Her pants were around
her knees, but she was able to get up and run to the bathroom in her
bedroom. She noticed she was bleeding from the vagina and had
blood spots on her underwear. Defendant followed her, hopping,
and telling her to stop. She tried to shut the bathroom door and
lock herself in, but defendant “was pushing on the door with his
hands” and she was unable to lock the door. He left a handprint on
the dress mirror hanging on the bathroom door.
Defendant pushed open the door, pulled her out of the bathroom,
and hopped through the bedroom and living room back into the
kitchen with her, where he pushed S.J. down to the floor. He then
pulled her pants all the way down and again forcefully inserted his
fingers into her vagina and anus, hurting her. This time, S.J. was
able to crawl on her hands and knees back to the bedroom and lock
the door.
S.J. stayed in her bedroom a long time because she never heard him
leave. When she eventually came out and discovered he was gone,
S.J. showered “to get clean.” She did not call the police, and was
not going to tell anyone, because she “felt such shame and didn't
want it known around where I live.” However, when her daughter
called her at approximately 10:00 p.m. and “she could tell there was
something wrong,” S.J. told her daughter what had happened.
S.J.’s daughter encouraged her to call the police. S.J. called 9–1–1.
The dispatcher was “kind of rude,” and that upset S.J. S.J. told the
dispatcher she had not been penetrated because she “wanted [the
dispatcher] to know, it was not with his penis, but with his fingers.”
3

1

When the police arrived, she gave a statement to Officer Herndon.
She gave the police the clothing she had on, and went to the
hospital for an examination.

2
3

The police officers went to defendant’s apartment. Defendant
answered the door while sitting in an electric wheelchair. Informed
that the police were there to talk to him about the assault on S.J.,
defendant said he would come outside because he did not want to
talk in front of his girlfriend. Defendant then got out of the
wheelchair without difficulty and hopped outside, moving really
well. Defendant denied assaulting S.J.

4
5
6
7

Defendant was taken to the hospital, where he had no trouble
putting on a hospital gown, or hopping over to the examination
table. After waiving his Miranda4 rights, defendant told police that
he was 46 years old. He said S.J. had called him and invited him to
come by to talk and buy some tea. He was at S.J’s apartment for no
more than two minutes and never touched or assaulted her. He had
no explanation for her injuries. Defendant was arrested and his
clothes were collected as evidence.

8
9
10
11

S.J. was examined by a nurse trained and qualified as an expert in
sexual assault examinations. S.J. told the nurse what had happened.
Her statement was consistent with what she told the police. The
nurse observed an abrasion on S.J.’s lower lip, multiple sub–
mucosal hemorrhages on her breasts, lacerations on her inner thighs
along the panty line, and above that on one side an abrasion where
some skin had been scraped off. There were bruises on S.J.’s
forearms, wrists, and elbow, and she complained of pain in her right
arm. In addition, the nurse noted a laceration on the posterior
fourchet (the bottom portion of the vaginal area), and two abrasions
on her hymen. The nurse took a saliva swab from S.J.

12
13
14
15
16
17

The same nurse examined defendant, collected his clothing, and
took a saliva swab from him.

18
19

An expert in forensic DNA analysis and DNA statistics examined
S.J.’s underwear and determined there was human blood on them.
He examined defendant’s shirt and determined that the blood stains
on the right shoulder matched S.J.’s DNA profile. He also analyzed
a swab from a mirror and determined that the DNA matched S.J.’s
profile. There was also a trace amount of male DNA. According to
the expert, fingerprints generally do not carry a lot of DNA, but
cells in the vaginal vault do. He opined that the amount of DNA he
found was consistent with someone putting a finger inside a vagina.
There was not enough male DNA to establish a donor.

20
21
22
23
24

Defense Case
25
Defendant did not testify. The defense called as an expert witness a
certified sexual assault nurse and forensic examiner who reviewed
the findings made by the prosecution’s sexual assault nurse
examiner. According to the defense expert, there is no way to

26
27
28

4

Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
4

1
2
3
4
5
6
7
8
9
10
11

determine if an injury is caused by consensual or nonconsensual
sex. She criticized the prosecution expert’s documentation as
confusing and conflicting, concluding that “there’s a lot wrong with
the way the documentation was done or not done.” According to
the defense expert, there were no abrasions or tearing on the
hymen: at most there was redness. On the posterior fourchet she
did see an area that was abraded. Abrasions are friction type
injuries that are caused by rubbing. The posterior fourchet “is still
called external genitalia. It’s not actually into the vaginal canal.”
She did not see any bleeding associated with these injuries. She did
not see any laceration of the posterior fourchet. The injuries on the
“inner thighs” were actually on the gluteal fold and could have been
caused by the elastic on the underwear. “Those areas were abraded
and looked as if they could have had a little oozy–type bleeding
going on.”
The defense expert acknowledged that the injuries were consistent
with digital penetration, but maintained that the injuries S.J.
sustained could have been caused by consensual or nonconsensual
sex. She testified that the decrease in hormones after menopause
make the tissues in the genital area dryer, thinner and more fragile
and, therefore, more susceptible to injury.

12
13
14
15
16
17
18

The defense also called as a character witness a woman who lived
in the same apartment complex and had known defendant for two
years. She described their relationship as “good friends.” He had
been to her apartment many times and had always been a complete
gentleman, never violent or threatening towards her, and very
helpful when her car had broken down. She was not aware that
defendant had been convicted of making felony criminal threats in
1997, but it did not change her opinion of him.
People v. Qahhaz, No. A130398, 2012 WL 4459579 (Cal. App. 1 Dist. Sept. 27, 2012).
After the California Court of Appeal affirmed petitioner’s judgment of conviction on

19

appeal, he filed a petition for review in the California Supreme Court. That petition was

20

summarily denied by order dated January 23, 2013. (ECF No. 19-4 at 525.)

21

On August 7, 2013, petitioner filed a petition for writ of habeas corpus in the California

22

Supreme Court, claiming that: (1) the evidence introduced at his trial was insufficient to support

23

his convictions; (2) the trial court improperly denied his requests for substitute counsel; and (3)

24

his trial counsel rendered ineffective assistance. (ECF No. 19-4 at 527-38.) On October 23,

25

2013, the Supreme Court denied that habeas petition, citing the decisions in People v. Duvall, 9

26

Cal.4th 464, 474 (1995) (a petitioner seeking habeas relief must “state fully and with particularity

27

the facts on which relief is sought” and must “include copies of reasonably available documentary

28

evidence supporting the claim”); In re Waltreus, 62 Cal.2d 218, 225 (1965) (issues actually raised
5

1

and rejected on appeal cannot be raised again in a state habeas petition); In re Dixon, 41 Cal.2d

2

756, 759 (1953) (a writ of habeas corpus is not available where the claimed errors could have

3

been, but were not, raised on appeal); In re Swain, 34 Cal.2d 300, 304 (1949) (a habeas petitioner

4

must “allege with particularity the facts upon which he would have a final judgment overturned”

5

and must “fully disclose his reasons for delaying in the presentation of those facts”); and In re

6

Lindley, 29 Cal.2d 709, 723 (1947) (habeas corpus is not available to retry issues of fact or the

7

merits of a defense, the sufficiency of the evidence to support the petitioner’s conviction, the trial

8

court’s admission or exclusion of evidence, or other errors of procedure occurring during the

9

trial). (ECF No. 19-4 at 538.)

10

Petitioner filed his federal habeas petition in this court on November 12, 2013. (ECF No.

11

1.)

12

II. Standards of Review Applicable to Habeas Corpus Claims

13

An application for a writ of habeas corpus by a person in custody under a judgment of a

14

state court can be granted only for violations of the Constitution or laws of the United States. 28

15

U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or

16

application of state law. See Wilson v. Corcoran, 562 U.S. 1, ___, 131 S. Ct. 13, 16 (2010);

17

Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.

18

2000).

19
20

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas
corpus relief:

21

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 -

22
23
24

(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

25
26

(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.

27
28

/////
6

For purposes of applying § 2254(d)(1), “clearly established federal law” consists of

1
2

holdings of the United States Supreme Court at the time of the last reasoned state court decision.

3

Greene v. Fisher, ___ U.S. ___, 132 S. Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859

4

(9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Circuit court precedent

5

“may be persuasive in determining what law is clearly established and whether a state court

6

applied that law unreasonably.” Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561,

7

567 (9th Cir. 2010)). However, circuit precedent may not be “used to refine or sharpen a general

8

principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has

9

not announced.” Marshall v. Rodgers, ___ U.S. ___, ___, 133 S. Ct. 1446, 1450 (2013) (citing

10

Parker v. Matthews, ___ U.S. ___, ___, 132 S. Ct. 2148, 2155 (2012)). Nor may it be used to

11

“determine whether a particular rule of law is so widely accepted among the Federal Circuits that

12

it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id. Further, where courts

13

of appeals have diverged in their treatment of an issue, it cannot be said that there is “clearly

14

established Federal law” governing that issue. Carey v. Musladin, 549 U.S. 70, 77 (2006).

15

A state court decision is “contrary to” clearly established federal law if it applies a rule

16

contradicting a holding of the Supreme Court or reaches a result different from Supreme Court

17

precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640 (2003).

18

Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court may grant the

19

writ if the state court identifies the correct governing legal principle from the Supreme Court’s

20

decisions, but unreasonably applies that principle to the facts of the prisoner’s case. 5 Lockyer v.

21

Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002

22

(9th Cir. 2004). A federal habeas court “may not issue the writ simply because that court

23

concludes in its independent judgment that the relevant state-court decision applied clearly

24

established federal law erroneously or incorrectly. Rather, that application must also be

25

unreasonable.” Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473

26

5

27
28

Under § 2254(d)(2), a state court decision based on a factual determination is not to be
overturned on factual grounds unless it is “objectively unreasonable in light of the evidence
presented in the state court proceeding.” Stanley, 633 F.3d at 859 (quoting Davis v. Woodford,
384 F.3d 628, 638 (9th Cir. 2004)).
7

1

(2007); Lockyer, 538 U.S. at 75 (it is “not enough that a federal habeas court, in its independent

2

review of the legal question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”)

3

“A state court’s determination that a claim lacks merit precludes federal habeas relief so long as

4

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

5

Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S.

6

652, 664 (2004)). Accordingly, “[a]s a condition for obtaining habeas corpus from a federal

7

court, a state prisoner must show that the state court’s ruling on the claim being presented in

8

federal court was so lacking in justification that there was an error well understood and

9

comprehended in existing law beyond any possibility for fairminded disagreement.” Richter,131

10
11

S. Ct. at 786-87.
If the state court’s decision does not meet the criteria set forth in § 2254(d), a reviewing

12

court must conduct a de novo review of a habeas petitioner’s claims. Delgadillo v. Woodford,

13

527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)

14

(en banc) (“[I]t is now clear both that we may not grant habeas relief simply because of §

15

2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering

16

de novo the constitutional issues raised.”).

17

The court looks to the last reasoned state court decision as the basis for the state court

18

judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).

19

If the last reasoned state court decision adopts or substantially incorporates the reasoning from a

20

previous state court decision, this court may consider both decisions to ascertain the reasoning of

21

the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). “When a

22

federal claim has been presented to a state court and the state court has denied relief, it may be

23

presumed that the state court adjudicated the claim on the merits in the absence of any indication

24

or state-law procedural principles to the contrary.” Richter, 131 S. Ct. at 784-85. This

25

presumption may be overcome by a showing “there is reason to think some other explanation for

26

the state court’s decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797,

27

803 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

28

but does not expressly address a federal claim, a federal habeas court must presume, subject to
8

1

rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___,

2

___, 133 S. Ct. 1088, 1091 (2013).

3

Where the state court reaches a decision on the merits but provides no reasoning to

4

support its conclusion, a federal habeas court independently reviews the record to determine

5

whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v.

6

Thompson, 336 F.3d 848, 853 (9th Cir. 2003). “Independent review of the record is not de novo

7

review of the constitutional issue, but rather, the only method by which we can determine whether

8

a silent state court decision is objectively unreasonable.” Himes, 336 F.3d at 853. Where no

9

reasoned decision is available, the habeas petitioner still has the burden of “showing there was no

10

reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.
A summary denial is presumed to be a denial on the merits of the petitioner’s claims.

11
12

Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze

13

just what the state court did when it issued a summary denial, the federal court must review the

14

state court record to determine whether there was any “reasonable basis for the state court to deny

15

relief.” Richter, 131 S. Ct. at 784. This court “must determine what arguments or theories . . .

16

could have supported, the state court’s decision; and then it must ask whether it is possible

17

fairminded jurists could disagree that those arguments or theories are inconsistent with the

18

holding in a prior decision of [the Supreme] Court.” Id. at 786. The petitioner bears “the burden

19

to demonstrate that ‘there was no reasonable basis for the state court to deny relief.’” Walker v.

20

Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Richter, 131 S. Ct. at 784).
When it is clear, however, that a state court has not reached the merits of a petitioner’s

21
22

claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal

23

habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462

24

F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

25

/////

26

/////

27

/////

28

/////
9

1

III. Petitioner’s Claims

2

A. Insufficient Evidence

3

In his first claim for relief, petitioner argues that the evidence introduced at his trial was

4

insufficient to support his conviction on “any of the alleged charges.” (ECF No. 1 at 4.)6

5

Petitioner contends that he was “convicted without solid real evidence, like DNA, medical and/or

6

physical evidence.” (Id.) Petitioner notes that the prosecution’s sexual assault expert testified

7

that she “could not be 100% certain that the [victim’s] injuries were caused by a sexual assault.”

8

(Id. at 16; ECF No. 19-3 at 437-38.) Petitioner further notes that this same expert witness

9

testified that a medical examination of petitioner’s body turned up “no findings.” (ECF No. 1 at

10

30-31.) Petitioner argues there was “reason to dispute” the victim’s testimony as to what

11

occurred and that “reasonable doubt was raised continually throughout the proceedings.” (Id. at

12

16-17.) Finally, petitioner directs the court’s attention to his trial counsel’s opening argument, in

13

which she asserted that the evidence did not conclusively prove petitioner’s guilt. (Id. at 19-20.)

14

1. Procedural Bar

15

Petitioner raised his insufficiency of the evidence claim for the first time in his habeas

16

petition filed in the California Supreme Court. As set forth above, the Supreme Court denied that

17

petition with a citation to five cases, including In re Lindley, 29 Cal.2d 709 (1947). Lindley

18

“stands for the California rule that a claim of insufficiency of evidence can only be considered on

19

direct appeal, not in habeas proceedings.” Carter v. Giurbino, 385 F.3d 1194, 1196 (9th Cir.

20

2004). Respondent argues that the California Supreme Court’s citation to In re Lindley in

21

denying the habeas petition filed in that court constitutes a state procedural bar precluding this

22

court from addressing the merits of petitioner’s insufficiency of the evidence claim. (ECF No.

23

18-1 at 8-9.)

24

As a general rule, “[a] federal habeas court will not review a claim rejected by a state

25

court ‘if the decision of [the state] court rests on a state law ground that is independent of the

26

federal question and adequate to support the judgment.” Walker v. Martin, 562 U.S.___, ___,

27
28

6

Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
10

1

131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. 53, 55 (2009). See also Maples

2

v. Thomas, ___U.S.___, ___, 132 S. Ct. 912, 922 (2012); Greenway v. Schriro, 653 F.3d 790,

3

797 (9th Cir. 2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir.

4

1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). However, a reviewing court

5

need not invariably resolve the question of procedural default prior to ruling on the merits of a

6

claim. Lambrix v. Singletary, 520 U.S. 518, 524-25 (1997); see also Franklin v. Johnson, 290

7

F.3d 1223, 1232 (9th Cir. 2002) (“Procedural bar issues are not infrequently more complex than

8

the merits issues presented by the appeal, so it may well make sense in some instances to proceed

9

to the merits if the result will be the same”); Busby v. Dretke, 359 F.3d 708, 720 (5th Cir. 2004)

10

(noting that although the question of procedural default should ordinarily be considered first, a

11

reviewing court need not do so invariably, especially when the issue turns on difficult questions

12

of state law). Thus, where deciding the merits of a claim proves to be less complicated and time-

13

consuming than adjudicating the issue of procedural default, a federal habeas court may exercise

14

discretion in its management of the case to reject the claim on its merits and forgo an analysis of

15

procedural default. See Batchelor v. Cupp, 693 F.2d 859, 864 (9th Cir. 1982) (procedural default

16

issues “are almost always more complicated and time consuming than are the merits of the

17

petitioner’s federal claim”).
Under the circumstances presented here, this court finds that petitioner’s sufficiency of the

18
19

evidence claim can be resolved more easily by addressing it on the merits. 7

20

2. Applicable Legal Standards for Claims of Insufficient Evidence
The Due Process Clause “protects the accused against conviction except upon proof

21
22

beyond a reasonable doubt of every fact necessary to constitute the crime with which he is

23
24
25
26
27
28

7

Respondent points out that the Ninth Circuit has ruled that the rule set forth in Lindley is “an
independent and adequate state procedural bar.” Carter, 385 F.3d at 1198. However, in the
instant case petitioner raised three claims in his state habeas petition and the California Supreme
Court denied the entire petition with a citation to five different state court cases. That
differentiates this case from Carter, where the petitioner alleged only one claim and the California
courts rejected that claim with a sole citation to Lindley. Id. at 1196. In light of these
differences, the California Supreme Court’s citation to In re Lindley in this case does not
necessarily establish a valid procedural bar.
11

1

charged.” In re Winship, 397 U.S. 358, 364 (1970). There is sufficient evidence to support a

2

conviction if, “after viewing the evidence in the light most favorable to the prosecution, any

3

rational trier of fact could have found the essential elements of the crime beyond a reasonable

4

doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). “[T]he dispositive question under

5

Jackson is ‘whether the record evidence could reasonably support a finding of guilt beyond a

6

reasonable doubt.’” Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson, 443

7

U.S. at 318). Put another way, “a reviewing court may set aside the jury’s verdict on the ground

8

of insufficient evidence only if no rational trier of fact could have agreed with the jury.” Cavazos

9

v. Smith, ___ U.S. ___, ___,132 S. Ct. 2, 4 (2011).
In conducting federal habeas review of a claim of insufficiency of the evidence, “all

10
11

evidence must be considered in the light most favorable to the prosecution.” Ngo v. Giurbino,

12

651 F.3d 1112, 1115 (9th Cir. 2011). “Jackson leaves juries broad discretion in deciding what

13

inferences to draw from the evidence presented at trial,” and it requires only that they draw

14

“‘reasonable inferences from basic facts to ultimate facts.’” Coleman v. Johnson,___ U.S. ___,

15

___, 132 S. Ct. 2060, 2064 (2012) (citation omitted). “‘Circumstantial evidence and inferences

16

drawn from it may be sufficient to sustain a conviction.’” Walters v. Maass, 45 F.3d 1355, 1358

17

(9th Cir. 1995) (citation omitted).8

18

“A petitioner for a federal writ of habeas corpus faces a heavy burden when challenging

19

the sufficiency of the evidence used to obtain a state conviction on federal due process grounds.”

20

Juan H. v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). In order to grant relief, the federal habeas

21

court must find that the decision of the state court rejecting an insufficiency of the evidence claim

22

reflected an objectively unreasonable application of Jackson and Winship to the facts of the case.

23

Ngo, 651 F.3d at 1115; Juan H., 408 F.3d at 1275 & n.13. Thus, when a federal habeas court

24

assesses a sufficiency of the evidence challenge to a state court conviction under AEDPA, “there

25

/////

26
27
28

8

The federal habeas court determines sufficiency of the evidence in reference to the substantive
elements of the criminal offense as defined by state law. Jackson, 443 U.S. at 324 n.16; Chein,
373 F.3d at 983.
12

1

is a double dose of deference that can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957,

2

964 (9th Cir. 2011).

3

3. Analysis
Based on the evidence introduced at petitioner’s trial, as summarized by the California

4
5

Court of Appeal above, a rational trier of fact could have found beyond a reasonable doubt that

6

petitioner committed the crimes he was charged with committing. The victim testified in detail

7

about the sexual assault and identified petitioner as her assailant. The evidence established that

8

the victim suffered injuries consistent with a sexual assault. Stains on petitioner’s shirt matched

9

the victim’s DNA profile. All of this evidence supported the jury’s verdict. The fact that there

10

was also evidence tending to support the defense theory that the physical contact between

11

petitioner and the victim may have been consensual, is not dispositive of petitioner’s

12

insufficiency of the evidence claim. What is dispositive is that the evidence of record, considered

13

in the light most favorable to the prosecution, reasonably supports a finding of guilt beyond a

14

reasonable doubt of the charged crimes. Chein, 373 F.3d at 982.

15

The decision of the California Court of Appeal rejecting petitioner’s claim that the

16

evidence introduced at his trial was insufficient to support his conviction on the charges brought

17

against him is not contrary to or an unreasonable application of Jackson and In re Winship to the

18

facts of this case. In light of the evidence introduced at petitioner’s trial, this court cannot

19

conclude that “no rational trier of fact could have agreed with the jury.” Smith, 132 S. Ct. at 4.

20

See also Coleman, 132 S. Ct. at 2062 (quoting Cavazos, 132 S. Ct. at 4).

21

Accordingly, petitioner is not entitled to federal habeas relief on this claim.

22

B. Marsden Hearings

23

In his other claim for federal habeas relief, petitioner argues that the trial court violated his

24

Sixth Amendment right to counsel by failing to hold adequate hearings on his requests for

25

substitute counsel. (ECF No. 1 at 4, 69-82.) Petitioner raised this claim on direct appeal. The

26

California Court of Appeal fairly summarized petitioner’s arguments, and explained its ruling

27

rejecting those arguments, as follows:

28

/////
13

1

Marsden Error Analysis

2

4

Defendant argues that the court twice erred in failing to hold
Marsden hearings, once during trial, and once postverdict. After
examining the context in which defendant made his requests to fire
his attorney, we conclude that the trial court did err, but any error
was harmless beyond a reasonable doubt, as discussed below.

5

Marsden Motion During Trial

6

While defense counsel was giving her opening statement, defendant
interrupted her to say, “Excuse me, Judge, I want to fire her
please.” The following exchange then occurred:

3

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

THE COURT: “Sir, I want you to be quiet. Let your lawyer speak,
please.
DEFENDANT: “Oh, my God, are you with me or against me?
THE COURT: “Mr. Qahhaz, I want you to be quiet.
DEFENDANT: “I want to take the stand. I want to take the stand.
THE COURT: “Mr. Qahhaz, I want you to be quiet, all right?
DEFENDANT: “I want to take the stand. This is my life.
THE COURT: “Sir—
DEFENDANT: “I have to explain to them everything.
THE COURT: “Sir, I want you to be quiet. Okay. Mr. Qahhaz, be
quiet. Okay. Thank you very much, sir. You be quiet. You’ve got
to behave yourself, Mr. Qahhaz, if you want to remain. If you
don’t, I’m going to send you on out of here. So please relax.
Thank you very much, sir. I know you don’t enjoy this, but just sit
down. [¶] You go ahead, [Defense Counsel].”
After defense counsel concluded her remarks, a hearing was held
outside the jury’s presence during which the court admonished
defendant at length about speaking out while trial was in session.
Defendant tried unsuccessfully several times to interrupt the court.
Eventually, the court permitted him to speak. Defendant stated:
“When he said about the blood and stuff, there is never blood. And
about the stand, I want to take the stand. I can, you know, I want to
tell everybody, you know, what happened exactly.” The court
responded, “Well, you may take the stand,” before continuing to
admonish defendant about interrupting trial. The court then
explained the order of trial concluding with: “At some point, [the
prosecutor’s] going to be done. And then, on your behalf, she can
put on some testimony. That may include you. The two of you
have to talk about that. I don’t know what her advice to you is, but
we’ll cross that bridge when we get to it. But it ain’t going to be
today, and it probably won’t be tomorrow.” Trial resumed.
14

1
2
3
4
5
6
7
8
9

On the following day, before testimony resumed, defense counsel,
the prosecutor, and the court discussed the court reporter’s
uncertified draft of defendant’s previous day statement. No one but
the court reporter and Detective Herndon had heard defendant say
he wanted to fire his attorney.
After other matters were discussed, defendant was brought into the
courtroom. The court said, “[O]ne of the things you said yesterday,
among a lot of things you said, [is] that you wanted to fire your
lawyer.” After more discussion of other matters, the court asked
defendant, “Did you want to fire her?” Defendant replied, “Just, I
want her to swear in front of you that she protect me from her heart.
That’s all.” (Italics added.) The court went on to tell defendant
that defense counsel had been in practice before the court for 20
years, was a good lawyer, ethical, and smart, and that juries seemed
to like her. Defense counsel did not swear, but defendant did not
say anything more when the court asked the prosecutor if he was
ready to call his first witness.

10
11
12
13
14
15
16
17
18
19
20

Defendant argues that at this juncture the trial court had a duty
under Marsden, supra, 2 Cal.3d 118, to allow defendant to “voice
his dissatisfaction with his trial counsel” and conduct a hearing
outside the presence of the prosecutor, where defendant “could
speak freely about the facts of the case.” We agree with defendant
that Marsden imposes on the trial court a duty to afford the
defendant “the opportunity to tell the trial judge the reasons
underlying his belief that his appointed attorney was providing
ineffective assistance of counsel.” (People v. Sanchez (2011) 53
Cal.4th 80, 87 (Sanchez).) This is so because “the trial court cannot
thoughtfully exercise its discretion in this matter without listening
to his reasons for requesting a change of attorneys. A trial judge is
unable to intelligently deal with a defendant’s request for
substitution of attorneys unless he is cognizant of the grounds
which prompted the request.” (Marsden, supra, 2 Cal.3d at p. 123.)
However, this duty must be triggered by something that gives the
court “‘at least some clear indication by defendant,’ either
personally or through his current counsel, that defendant ‘wants a
substitute attorney.’” (Sanchez, supra, 53 Cal.3d at p. 90. See also
People v. Martinez (2009) 47 Cal.4th 399, 421 [no duty to conduct
a Marsden inquiry on court's own motion].)

21

27

In this case, however, sometime between the time defendant
interrupted defense counsel’s opening statement to say he wanted to
fire her, and the next day, defendant evidently changed his mind.
During the hearing after defense counsel’s opening statement,
defendant talked about the blood evidence and his desire to explain
to the jury what really happened, but he did not express
dissatisfaction with his attorney, or repeat his request to fire her, or
ask for substitute counsel. Similarly, when the court asked him the
next day whether he did want to fire his attorney, he replied, “Just, I
want her to swear in front of you that she protect me from her heart.
That's all.” (Italics added.) We note defendant had previously
made a Marsden motion to fire his first attorney and the court had

28

/////

22
23
24
25
26

15

held a Marsden hearing.9 The record here demonstrates defendant
knew how to indicate he wanted substitute counsel, and the trial
court did afford defendant two opportunities – one immediately
after defense counsel’s opening statement, and one the next day – to
explain why he wanted to fire his attorney. At those points in time,
defendant gave no indication he wanted to fire her and, when asked
directly whether he did want to fire her, he effectively said he did
not. Given that defendant did not give the court any clear
indication at either point in time that he wanted to substitute
attorneys, the court had no further obligation to hold a Marsden
hearing to probe defendant’s reasons for having apparently felt
differently about his counsel during her opening statement.

1
2
3
4
5
6
7

Postconviction Marsden Motion
8
The jury returned its verdicts on April 19, 2010. On May 13, 2010,
the day defendant’s Romero motion was scheduled to be heard,
defense counsel “wanted to make a record as to whether the court
thought it prudent to appoint counsel to determine if there is a new
trial motion” on the issue of her own ineffective assistance. The
court did not appoint other counsel, and continued the matter to
May 20.

9
10
11
12

On May 20, trial counsel filed a motion to continue sentencing. In
her declaration in support of the motion, she stated that on May 13
she informed the court that defendant was requesting a Marsden
hearing so that he could request new counsel and a new trial, but
the court, outside defendant’s presence, declined to hold a hearing
that day. On defendant’s behalf, she was renewing his request for a
Marsden hearing. She averred that defendant had refused to meet
with her since the verdicts were returned, and she “believe[d] the
relationship with Mr. Qahhaz cannot be repaired until he has had an
opportunity to air his grievances with the court and hear the court’s
analysis of my legal assistance at trial.”

13
14
15
16
17
18

Both trial counsel and proposed interim counsel appeared in court
on May 20. Although it was the last day for sentencing without a
time waiver, defendant was not brought to court from the jail. Trial
counsel reminded the court defendant wanted to be heard on his
Marsden motion, and urged the court to appoint someone to look
into filing a motion for new trial. When the court asked counsel if
there was a “viable issue” that would give rise to “an affirmative
duty to appoint somebody,” trial counsel replied: “Let me just offer
this, there were a lot of negotiations with him over whether he
would testify. Ultimately, he decided not to. And now I think he
regrets that decision. So his issue is over my advice and maybe
another lawyer looking at that might think it was ill advised to tell
him not to testify.” The court appointed Ms. Barton and the
conflict defender’s office “for the sole purpose of viewing the
record and/or discussions with the defendant and/or [trial counsel],

19
20
21
22
23
24
25
26
27
28

9

The court denied that Marsden motion and proceedings were suspended after the trial court
declared a doubt about defendant’s competency. When proceedings resumed two and a half
months later, defendant was represented by different counsel.
16

1

or anyone, for a motion for a new trial based on ineffective
assistance of counsel.”

2
3
4
5

On May 21, 2010, the court confirmed Ms. Barton’s appointment
“to look into [a] possible motion for new trial.” Defendant and both
trial and interim counsel appeared in court on that day. Trial
counsel waived time for sentencing on defendant’s behalf, and
sentencing was continued to July 1 to permit her to file a sentencing
motion. Defendant did not voice an opposition to the dual counsel
procedure.

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

On July 1, defendant appeared in court with trial counsel. Ms. Loy,
standing in for Ms. Barton, was also present. As soon as trial
counsel started to speak, defendant apparently became agitated and
interrupted her, stating “ Marsden motion, please. Please, Judge, on
her,” meaning trial counsel. Defendant was removed from the court
room to calm down and the matter was passed. When proceedings
resumed, the court asked all counsel: “[G]enerally when a
defendant brings a Marsden motion, it’s important that the court
address that and listen to the defendant and so forth. But would that
apply at this time?” Trial counsel stated,” I think not because the
issue is being looked into. He has other counsel right now . . . . So
unless he were bringing it against interim counsel, I don’t think so.”
She opined that if, after looking into the matter, interim counsel
decided not to file a motion for new trial, at that point trial counsel
would still be defendant’s attorney and “[a]t that time, I think his
motion would have merit.” The prosecutor agreed. The court
continued sentencing for three weeks to allow interim counsel to
prepare a new trial motion.
On July 23, 2010, both trial counsel and interim counsel appeared.
Interim counsel indicated she had spoken with defendant that
morning and that trial counsel was “the source of most of
[defendant’s] problems when he comes out here.” She indicated
she was almost ready to file the new trial motion, but that she and
defendant were having “a little disagreement.” She asked to be
appointed for all purposes, not just for the limited purpose of filing
a new trial motion, because defendant wanted trial counsel off the
case for all intents and purposes. When asked by the court how she
and defendant were “getting along,” trial counsel replied that she
and defendant had “no relationship” and there was “no
communication.” Trial counsel had no objection to the court
appointing interim counsel for all purposes. The court then relieved
trial counsel, appointed interim counsel for all purposes, called
defendant into the courtroom and informed him of the substitution
of attorneys for all purposes. Defendant made no comment. The
court continued the matter to September 3 for hearing on the new
trial motion.

25
26
27
28

On September 3, the hearing on the new trial motion was continued
to September 30. On September 30, however, new counsel
informed the court that the new trial motion was ready to file except
that defendant was refusing to sign the declaration in support of the
allegations of ineffective assistance of counsel made in the motion.
She represented that defendant did not disagree with the contents of
17

1
2
3
4
5
6
7
8
9

the declaration. “He disagrees that those are the only bases, and
there’s a variety of other issues that I have explored that, as the
attorney, I would say are not valid.” She asked the court to appoint
an additional local defense attorney to assist her in working with
defendant. The court appointed the new attorney on that limited
basis and continued the matter to October 7, 2010. On that date,
however, defendant still had not signed the declaration, and he now
wanted the new attorney to visit him in jail, read the trial transcript,
and give his opinion. The prosecutor objected to putting off the
sentencing further. The court continued the matter for two weeks
for judgment and sentence.
As of October 21, 2010, defendant continued to refuse to sign the
declaration in support of the new trial motion. No new trial motion
was ever filed. The court proceeded to hear defendant’s Romero
motion, which had been filed by trial counsel. Current counsel
submitted the motion on the pleadings. The court denied the
Romero motion and sentenced defendant.

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Defendant apparently argues that the court erred by failing to hold a
Marsden hearing on July 1, 2010. That was the day on which “the
court, with only the input of the counsel at whom the Marsden was
directed, argued against her being relieved as counsel of record,
citing to the existence of counsel who had been appointed to
consider filing a new trial motion.” In our view, if the court erred,
any error was harmless beyond a reasonable doubt, as we now
explain.
“[A]t any time during criminal proceedings, if a defendant requests
substitute counsel, the trial court is obligated, pursuant to [the]
holding in Marsden, to give the defendant an opportunity to state
any grounds for dissatisfaction with the current appointed attorney.”
(Sanchez, supra, 53 Cal. 4th at p. 90.) It is clear now, as it may not
have been in 2010, that “if the defendant makes a showing during a
Marsden hearing that his right to counsel has been ‘“‘substantially
impaired’”' [citation], substitute counsel must be appointed as
attorney of record for all purposes. [Citation.] In so holding, we
specifically disapprove of the procedure adopted by the trial court
in this case, namely, the appointment of a substitute or ‘conflict’
attorney solely to evaluate whether a criminal defendant has a legal
ground on which to move to withdraw the plea on the basis of the
current counsel’s incompetence.” (Ibid., italics added.) We assume
that the Supreme Court’s reasoning in the Sanchez decision applies
to trials, as well as pleas, and that it would equally disapprove the
practice used in this case of appointing substitute counsel for the
sole purpose of evaluating whether a criminal defendant has a legal
basis for bringing a new trial motion on the grounds that trial
counsel was incompetent.

25
26
27
28

According to trial counsel’s declaration in support of a request to
continue sentencing from May 20 to June 25, defense counsel first
informed the trial court of defendant’s latest motion on May 13.
According to counsel’s declaration, defendant was not present when
she informed the court of his request for a Marsden hearing, or
when she made an “on the record” request for appointment of
18

interim counsel, which the trial court denied.10 The record on
appeal is not clear on whether defendant was brought to court from
jail on May 13. Obviously, if defendant was not present in the
court house, the court could not have held a Marsden hearing on
May 13.

1
2
3
4

Any failure to hold a Marsden hearing on May 13 was rendered
moot on May 20, when the trial court did appoint substitute
counsel, albeit for the limited purpose of looking into a new trial
motion based on trial counsel's ineffective assistance. The record is
clear defendant was not brought into court from the jail that day
and, therefore, no Marsden hearing could have been held. But by
appointing counsel on the basis of trial counsel’s comments, the
trial court gave defendant almost everything that he could have
gotten if the court had held the hearing and granted his Marsden
motion.

5
6
7
8
9

Instead of appointing interim counsel on the basis of trial counsel’s
statements in court and in her motion to continue, the court should
have held a Marsden hearing to allow defendant to air his
complaints about trial counsel. Had the court done so, it might
have concluded that “‘“‘failure to replace counsel would
substantially impair the defendant’s right to assistance of
counsel.’”' [Citations.] Substantial impairment of the right to
counsel can occur when the appointed counsel is providing
inadequate representation or when ‘the defendant and the attorney
have become embroiled in such an irreconcilable conflict that
ineffective representation is likely to result . . . .’ [Citations.]”
(People v. Myles (2012) 53 Cal. 4th 1181, 1207, quoting People v.
Clark (2011) 52 Cal. 4th 856, 912. See also People v. Robles
(1970) 2 Cal. 3d 205, 215 ( Robles ) [“in a few cases the
disagreement as to whether a defendant should testify may signal a
breakdown in the attorney–client relationship of such magnitude as
to jeopardize the defendant’s right to effective assistance of
counsel.”].) In either case, the court would have been obligated
under Marsden to appoint substitute counsel for all purposes, not a
limited purpose, at that juncture.

10
11
12
13
14
15
16
17
18
19
20

It is true that on July 1, the court missed another opportunity to hold
a Marsden hearing which might have led to interim counsel’s
appointment for all purposes. However, the court’s error in
appointing interim counsel for a limited purpose instead of all
purposes was remedied for once and for all on July 23, when the
court did relieve trial counsel and appoint Ms. Barton for all
purposes. From this point forward, defendant had achieved all that
he could have from Marsden hearings on May 13, May 21, or July
1, 2010: substitute counsel, for all purposes.
Defendant acknowledges that Ms. Barton represented him for all
purposes, including sentencing, from that point forward. However,
he argues he was prejudiced because she was “appointed as
[defendant’s] attorney for all purposes just shortly before

21
22
23
24
25
26
27
28

10

The record suggests defendant was scheduled to appear the following day, May 14, for
sentencing, but that the court vacated that date and continued sentencing to May 20.
19

1
2
3
4
5
6
7

[defendant’s] sentencing, and in fact made no arguments on
[defendant’s] behalf . . . .” (Italics added.) Sentencing finally took
place October 21, 2010, nearly three months after Ms. Barton’s
appointment for all purposes was made. Defendant did not express
any desire to fire Ms. Barton, and the trial court did not have a sua
sponte duty to “ascertain whether the relationship between Barton
and [defendant] was beyond repair.”
Nor has defendant
demonstrated on this record that Ms. Barton rendered ineffective
assistance of counsel in connection with the sentencing hearing or
the decision not to file a motion for new trial. In any event, the trial
court even acceded to Ms. Barton’s request for the appointment of
yet another attorney to help her deal with defendant. Any Marsden
error was, on this record, harmless beyond a reasonable doubt.
(Sanchez, supra, 53 Cal. 4th at p. 92.)

8
9
10
11

Qahhaz, 2012 WL 4459579, at **3 -8.
1. Applicable Law
Pursuant to the decision in People v. Marsden, 2 Cal. 3rd 118 (1970), when a criminal

12

defendant in California asserting inadequate representation seeks to discharge appointed counsel

13

and substitute another attorney, the trial court must permit him to explain the basis of his

14

contention and to relate specific instances of the attorney’s inadequate performance. The denial

15

of a Marsden motion to substitute counsel can implicate a criminal defendant’s Sixth Amendment

16

right to counsel and is properly considered in federal habeas corpus. Bland v. California Dep't of

17

Corrections, 20 F.3d 1469, 1475 (9th Cir. 1994), overruled on other grounds by Schell v. Witek,

18

218 F.3d 1017 (9th Cir. 2000) (en banc). On federal habeas review, the relevant inquiry is

19

whether the state trial court’s disposition of the Marsden motion violated petitioner’s Sixth

20

Amendment right to counsel because a conflict between petitioner and his attorney “had become

21

so great that it resulted in a total lack of communication or other significant impediment that

22

resulted in turn in an attorney-client relationship that fell short of that required by the Sixth

23

Amendment.” Schell, 218 F.3d at 1027-28. As the Ninth Circuit has explained:

24
25
26
27
28

[T]he basic question is simply whether the conflict between Schell
and his attorney prevented effective assistance of counsel . . . . It
may be the case, for example, that because the conflict was of
Schell’s own making, or arose over decisions that are committed to
the judgment of the attorney and not the client, in fact he actually
received what the Sixth Amendment required in the case of an
indigent defendant . . . .
Schell, 218 F.3d at 1026.
20

1

The Sixth Amendment does not guarantee a “meaningful relationship” between a client

2

and his attorney. Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (quoting Morris v.

3

Slappy, 461 U.S. 1, 14 (1983)). Moreover, an indigent defendant does not have the right to

4

counsel of his choice in a criminal proceeding. United States v. Rewald, 889 F.2d 836, 856. (9th

5

Cir. 1989); United States v. Torres–Rodriguez, 930 F.2d 1375, 1380 n.2 (9th Cir.1991) (“A

6

defendant who seeks to replace one appointed counsel with another . . . will need to justify the

7

replacement . . . . An indigent defendant is entitled to appointed counsel, but not necessarily to

8

appointed counsel of his choice.”); see also Bradley v. Henry, 510 F.3d 1093, 1099-1100 (9th Cir.

9

2007) (concurring opinion). “[I]n evaluating Sixth Amendment claims, the appropriate inquiry

10

focuses on the adversarial process, not on the accused’s relationship with his lawyer as such.”

11

Wheat v. United States, 486 U.S. 153, 159 (1988) (quoting United States v. Cronic, 466 U.S. 648,

12

657 n. 21 (1984)). Thus, “the essential aim of the [Sixth] Amendment is to guarantee an effective

13

advocate for each criminal defendant.” Id.

14

The United States Supreme Court has not specifically addressed the level of inquiry

15

required when a Marsden motion or other similar motion is made by a criminal defendant. When

16

assessing a trial court’s ruling on a Marsden motion in the context of a federal habeas corpus

17

proceeding, the Ninth Circuit has held that the Sixth Amendment requires only “an appropriate

18

inquiry into the grounds of such a motion, and that the matter be resolved on the merits before the

19

case goes forward.” Schell, 218 F.3d at 1025. See also Larson v. Palmateer, 515 F.3d 1057,

20

1066-67 (9th Cir. 2008) (“Because Larson has not shown that he was entitled to a fourth set of

21

counsel under clearly established federal law, his Sixth Amendment claim fails.”); Plumlee v.

22

Masto, 512 F.3d 1204, 1211 (9th Cir.) (en banc) (“Under our precedents, see, e.g., Schell, 218

23

F.3d at 1025-26, Judge Lane had a duty to inquire into the problems with counsel when they were

24

first raised, and he did so”), cert. denied 553 U.S. 1085 (2008).

25

2. Analysis

26

As explained by the California Court of Appeal, petitioner claims that the trial court erred

27

in failing to conduct a Marsden hearing after he stated he wanted to fire his attorney, both during

28

trial and after the jury returned their guilty verdicts. To the extent petitioner is raising in this
21

1

court issues regarding the proper application of state law, they are not cognizable in a federal

2

habeas corpus proceeding. Swarthout v. Cooke, 562 U.S. 216, ___, 131 S. Ct. 859, 863 (2011);

3

McGuire, 502 U.S. at 67-68. A petitioner may not transform a state law issue into a federal one

4

by simply asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir.

5

1996). Thus, whether the state trial court violated state law under the Marsden decision by, for

6

example, initially appointing an interim attorney solely for the purpose of filing a motion for new

7

trial and not for all purposes, is not cognizable in these federal habeas proceedings. Rather, this

8

court must determine only whether the trial judge’s actions deprived petitioner of his Sixth

9

Amendment right to the effective assistance of counsel.

10
11

a. First Request for Substitute Counsel
The state court record reflects, and the California Court of Appeal found, that during his

12

own trial counsel’s opening statement petitioner interrupted to state, “Excuse me, Judge, I want to

13

fire her, please.” (ECF No. 19-3 at 183.) The next morning, during a conversation held outside

14

the jury’s presence, it was established that the trial judge did not hear this statement made by

15

petitioner. (Id. at 240.) Accordingly, the judge summoned petitioner into the courtroom and

16

asked him whether he wanted to fire his lawyer. (Id. at 254.) As noted by the state appellate

17

court, petitioner responded that he wanted his counsel “to swear in front of you that she protect

18

me from her heart. That’s all.” (Id.) The judge then made a few general comments, speaking

19

favorably as to the legal abilities and trial skills of petitioner’s lawyer, and then asked the

20

prosecutor whether he was ready to call his first witness. (Id. at 244-45.) The trial proceeded

21

with no further discussion or objection by petitioner to going forward with his then current

22

counsel.

23

After reviewing this record, the California Court of Appeal concluded that between the

24

time petitioner interrupted her opening statement and asked to “fire” his lawyer and the point

25

where the trial judge realized that such a request had been made and questioned petitioner about

26

it, petitioner had changed his mind and was willing to proceed with his then current counsel. In

27

other words, the state appellate court concluded that the trial judge was never faced with a valid

28

Marsden request for substitute counsel at that time and therefore had no duty to make further
22

1

inquiry. This determination is not objectively unreasonable, given the facts of this case. The trial

2

judge certainly cannot be faulted for failing to respond to a request that he didn’t hear. Moreover,

3

the trial judge was entitled to take petitioner at his word when he informed the judge the only

4

thing he wanted was for his attorney to represent him “from the heart.” The undersigned also

5

notes that when the trial judge allowed petitioner to speak in open court after being informed that

6

petitioner had said something about wanting to “fire” his attorney, petitioner did not repeat that

7

request to fire his counsel nor did he complain about his trial counsel’s performance at that time.

8

As noted by the state appellate court, a trial court is not obliged to hold a Marsden hearing unless

9

there is “at least some clear indication by the defendant, either personally or through his current

10

counsel, that defendant wants a substitute attorney.” Qahhaz, 2012 WL 4459579, at *4 (quoting

11

People v. Sanchez, 53 Cal. 4th 80, 90 (2011). This court agrees with the California Court of

12

Appeal that, without a valid request for substitute counsel, the trial court “had no further

13

obligation to hold a Marsden hearing to probe defendant’s reasons for having apparently felt

14

differently about his counsel during her opening statement.” Qahhaz, 2012 WL 4459579 at *5.

15

The facts of this case also support a finding that petitioner simply abandoned any initial

16

request for substitute counsel. In People v. Vera, 122 Cal.App.4th 970 (2004), the California

17

Court of Appeal held that the defendant had abandoned his request for substitute counsel where

18

he failed to renew his previously unresolved Marsden motion when invited to do so. Id. at 981.

19

Similarly here, petitioner failed to pursue his request for substitute counsel even when asked

20

directly by the trial court thereafter whether he wished to fire his attorney. To the extent that

21

petitioner effectively abandoned any initial request for substitute counsel, the trial court certainly

22

had no duty to hold a Marsden hearing. See Brown v. Walker, No. C 09-4663 JSW (PR), 2011

23

WL 4903085, at *6-7 (N.D. Cal. Oct. 14, 2011) (petitioner abandoned his request for substitute

24

counsel where, after writing an ex parte letter to the trial court requesting a “Marsden hearing,” he

25

subsequently pled guilty without renewing his request).

26

In any event, the question before the court in this federal habeas proceeding is whether the

27

trial court’s failure to hold a hearing on petitioner’s request for substitute counsel violated the

28

Sixth Amendment in that a conflict between petitioner and his trial counsel “had become so great
23

1

that it resulted in a total lack of communication or other significant impediment.” Schell, 218

2

F.3d at 1026. Petitioner is unable to make this showing. Although petitioner blurted out at one

3

point that he wanted to “fire” his trial counsel, he did not repeat that request when the trial judge

4

subsequently asked him directly whether he still wished to do so. On the contrary, petitioner

5

proceeded through the remainder of his trial represented by his then current trial counsel without

6

protest or complaint. Those actions belie any argument that petitioner and his trial counsel had an

7

irreconcilable conflict at the time of petitioner’s trial. Because petitioner has failed to show that

8

the trial court’s failure to conduct a full Marsden hearing following his trial counsel’s opening

9

statement resulted in a violation of petitioner’s Sixth Amendment right to counsel, he is not

10

entitled to federal habeas relief on this claim.11

11

b. Second Request for Substitute Counsel
With regard to petitioner’s post-trial requests for substitute counsel, the California Court

12
13

of Appeal concluded that the trial court erred in not affording petitioner a hearing, but that any

14

such error was harmless. The state appellate court reasoned that petitioner ultimately received

15

what he had asked for, the appointment of substitute counsel for all purposes, notwithstanding the

16

trial court’s failure to allow him to explain the basis of his grievances against his trial counsel at

17

that time.

18

The record in this case reflects that after the jury rendered its guilty verdict on all counts,

19

the conflict between petitioner and his trial counsel had reached the point where there was a total

20

lack of communication. Essentially, a meaningful attorney-client relationship no longer existed at

21

that point. Petitioner wanted to discharge his trial counsel and obtain another attorney. He also

22

11

23
24
25
26
27
28

Petitioner asserts that he wanted to testify at his trial and there is evidence in the record that
this issue was discussed extensively between petitioner and his trial counsel. Specifically,
counsel told the trial court that after numerous discussions on this point, petitioner ultimately
agreed not to testify but then regretted that decision after the verdict was rendered. This situation,
which involves communication and negotiation between petitioner and his attorney, does not
constitute a constructive denial of counsel. The fact that petitioner and his trial counsel initially
disagreed as to whether petitioner should testify at trial and that his counsel ultimately convinced
petitioner not to do so, does not render counsel’s representation constitutionally inadequate.
Given the facts of this case, counsel’s advice to petitioner not to testify was not an error “‘so
serious as to deprive the defendant of a fair trial, a trial whose result is reliable.’” Richter, 131 S.
Ct. at 787-88. (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).
24

1

wanted to take the stand and testify. Although the trial court did not hear directly from petitioner

2

about the problems between himself and his trial counsel, counsel herself explained to the court

3

that petitioner wanted a substitution of attorneys and that the problem between them concerned

4

petitioner’s desire to testify in his own defense.12 At that point, the trial court provided petitioner

5

with one, and eventually two, additional attorneys to evaluate the advisability of filing a motion

6

for new trial on the grounds that he had received ineffective assistance of trial counsel. Petitioner

7

did not object to that procedure. Subsequently, well prior to his sentencing, the trial court

8

appointed new substitute counsel to represent petitioner for all purposes. Thus, although

9

petitioner’s trial counsel was still technically one of his attorneys of record from the point at

10

which she articulated petitioner’s request for substitute counsel until almost three months before

11

his sentencing hearing, the trial court’s appointment of substitute counsel shortly after hearing

12

from trial counsel that petitioner wanted another attorney, in effect, granted petitioner’s Marsden

13

motion.
More importantly, there is no evidence the trial court’s actions deprived petitioner of his

14
15

right to the effective assistance of counsel following his trial. There is no indication that the

16

performance of either one of the substitute counsel appointed by the trial court for the post-trial

17

proceedings was deficient or ineffective. One of the substitute attorneys drafted a motion for new

18

trial and presumably would have filed it with the court if petitioner had agreed to sign the

19

supporting declaration that counsel had drafted. There is also no indication that counsel’s

20

performance at the sentencing proceedings was deficient nor is there any evidence of a conflict

21

between petitioner and either of his substitute counsel throughout the post-trial proceedings.

22

Petitioner has failed to demonstrate either the existence of a serious post-trial conflict rising to the

23

level of a constructive denial of counsel, or even that he was prejudiced by any less serious

24

conflict between himself and his counsel. See Schell, 218 F.3d at 1027-28 (if a serious conflict

25
12

26
27
28

The fact that petitioner’s trial counsel, and not petitioner himself, originally articulated the
request for the appointment of substitute counsel is not legally significant because counsel was
making that request on behalf of petitioner. See Bland, 20 F.3d at 1477 (“the fact that Anderson
made the request, and not Bland, does not change the result [because] Anderson made the request
on behalf of Bland.”).
25

1

exists that results in a constructive denial of counsel no showing of prejudice is required, but if

2

there is a serious conflict that did not rise to the level of a constructive denial of counsel, a

3

petitioner must prove he was prejudiced by the conflict); see also Brown v. LaMarque, No. 1:03-

4

cv-6870 TAG HC, 2007 WL 570088, at **5-9 (E.D. Cal. Feb. 21, 2007) (petitioner’s Sixth

5

Amendment rights were not violated by the trial court’s refusal to conduct a Marsden hearing

6

where petitioner failed to show he was denied the effective assistance of counsel). For all of

7

these reasons, petitioner has failed to demonstrate that the trial judge’s failure to allow him to

8

express his complaints about his trial counsel violated petitioner’s rights under the Sixth

9

Amendment.

10

Given the record in this case, the state court’s denial of petitioner’s Sixth Amendment

11

claims was not contrary to or an unreasonable application of federal law, nor was it “so lacking in

12

justification that there was an error well understood and comprehended in existing law beyond

13

any possibility for fairminded disagreement.” Richter,131 S. Ct. at 786-87. Accordingly,

14

petitioner is not entitled to federal habeas relief with respect to his claims that his constitutional

15

rights were violated by the lack of adequate hearings on his requests for the appointment of

16

substitute counsel on his behalf.

17

IV. Conclusion

18
19

For the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner’s
application for a writ of habeas corpus be denied.

20

These findings and recommendations are submitted to the United States District Judge

21

assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

22

after being served with these findings and recommendations, any party may file written

23

objections with the court and serve a copy on all parties. Such a document should be captioned

24

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

25

shall be served and filed within fourteen days after service of the objections. Failure to file

26

objections within the specified time may waive the right to appeal the District Court’s order.

27

Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

28

1991). In his objections petitioner may address whether a certificate of appealability should issue
26

1

in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing

2

Section 2254 Cases (the district court must issue or deny a certificate of appealability when it

3

enters a final order adverse to the applicant).

4

Dated: November 25, 2014

5
6
7
8

DAD:8:
Qahhaz2338.hc

9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
27