Jones v. Kern Valley State Prison

Filing 44

FINDINGS and RECOMMENDATIONS, recommending that Claims 1 & 2 (Substitution of Counsel / Faretta and Compulsory Process Issues) be denied on their merits; no Judgment be entered on Claims 1 and 2 at this time; that case be stayed pursuant to Rhines v. Weber; and petitioner be directed to commence further exhaustion proceedings within 30 days of District Judge adoption of these Findings and Recommendations, signed by Magistrate Judge Gregory G. Hollows on 3/21/2016. These Findings and Recommendations are SUBMITTED to District Judge John A. Mendez. Within 14 days after being served with these F & Rs, any party may file Objections with Court and serve a copy on all parties. (Marciel, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY JONES,

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Petitioner,

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No. 2:14-cv-00486 JAM GGH

v.

FINDINGS AND RECOMMENDATIONS

WARDEN, KERN VALLEY STATE
PRISON
Respondent.

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Introduction and Summary
Petitioner is serving a life sentence with the possibility of parole plus ten years1 for being

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a felon in possession of a firearm, attempted carjacking and kidnapping for robbery with the

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enhancement that a firearm was used in the commission of the carjacking and kidnapping crimes.

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Three issues are raised, Claim 4 having been previously dismissed by the court:2

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1. Failure to substitute counsel when petitioner expressed dissatisfaction with his trial

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counsel “forcing” petitioner to then represent himself;

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Petitioner was originally sentenced to 50 years to life plus 25 years. However, this sentence was
remanded and fixed as set forth above according to the first amended petition. The sentencing
proceedings do not play a part in this habeas proceeding.
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Claim 4 involved an allegation that petitioner’s trial counsel had improperly given information
to the district attorney.
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2. Violating petitioner’s right to compulsory process;

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3. Failing to appoint counsel when the trial court expressed a doubt as to petitioner’s

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competence to continue with his criminal proceedings, and failing to suspend such

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proceedings because of such incompetence.

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For the reasons set forth below, the first two claims should be denied, but with no

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judgment entered as of yet; the habeas proceeding should then be stayed so that petitioner may

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exhaust his incompetency claim with the new evidence available.

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Background Facts

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Normally, the undersigned would set forth a comprehensive background of the facts

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leading to the criminal convictions either by adopting the discussion of the Court of Appeal, or

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otherwise by a synthesis of the record. However, none of the above issues depend on such a

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comprehensive explication. Therefore, the undersigned will dispense with a detailed factual

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discussion.3 The facts necessary for review of each issue will be set forth with the discussion of

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each issue.

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Discussion

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A. AEDPA Standards

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All of petitioner’s claims were decided on the merits by the state courts, including the

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However, the synopsized, beginning paragraphs of the Court of Appeal opinion are set forth
here as they accurately sum up the crimes committed:

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We strongly discourage anyone from choosing crime as a career.
Nevertheless, as with any pursuit in life, one should be prepared.
For instance, if you are planning to carjack someone, you should
make sure you can drive a stick-shift.
Defendant Anthony Jones and an accomplice tried to take Garrett
Freitas's car at gun point. The duo were apparently unaware that
starting a manual transmission vehicle requires depression of the
clutch pedal. Unable to start the car, defendant turned the gun on
Freitas and ordered him to drive, converting what would have been
a straightforward carjacking into attempted carjacking and
kidnapping for purposes of robbery. About half a mile away,
defendant told Freitas to pull over and call someone who had drugs
or he ‘wouldn't be going home.’ Police arrived . . . .
People v. Jones, 2012 WL 3860801 (Cal. App. 2012).
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California Supreme Court; therefore the AEDPA standards are in full play.
The statutory limitations of federal courts’ power to issue habeas corpus relief for persons

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in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:

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

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of the United States Supreme Court at the time of the last reasoned state court decision.
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Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ––– U.S. ––
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––, ––––, 132 S. Ct. 38, 44 (2011)); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing
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Williams v. Taylor, 529 U.S. 362, 405–06, 120 S. Ct. 1495 (2000)). Circuit precedent may not be
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“used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal
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rule that th[e] [Supreme] Court has not announced.” Marshall v. Rodgers, ––– U.S. ––––, ––––,
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133 S. Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ––– U.S. ––––, ––––, 132 S. Ct. 2148,
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2155 (2012)). Nor may it be used to “determine whether a particular rule of law is so widely
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accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be
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accepted as correct. Id.
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A state court decision is “contrary to” clearly established federal law if it applies a rule
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contradicting a holding of the Supreme Court or reaches a result different from Supreme Court
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precedent on “materially indistinguishable” facts. Price v. Vincent, 538 U.S. 634, 640, 123 S. Ct.
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1848 (2003). Under the “unreasonable application” clause of § 2254(d)(1), a federal habeas court
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may grant the writ if the state court identifies the correct governing legal principle from the
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Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner’s
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case.4 Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 (2003); Williams, 529 U.S. at 413;

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Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court “may

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not issue the writ simply because that court concludes in its independent judgment that the

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relevant state-court decision applied clearly established federal law erroneously or incorrectly.

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Rather, that application must also be unreasonable.” Williams, 529 U.S. at 412. See also Schriro

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v. Landrigan, 550 U.S. 465, 473, 127 S. Ct. 1933 (2007); Lockyer, 538 U.S. at 75 (“It is not

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enough that a federal habeas court, in its ‘independent review of the legal question,’ is left with a

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‘‘firm conviction’’ that the state court was ‘‘erroneous.’’”). “A state court’s determination that a

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claim lacks merit precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on

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the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct.

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770 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S. Ct. 2140 (2004)).5

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Accordingly, “[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner

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must show that the state court’s ruling on the claim being presented in federal court was so

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

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beyond any possibility for fairminded disagreement.” Harrington, 562 U.S. at 103.

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

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

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

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

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

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The undersigned also finds that the same deference is paid to the factual determinations of state
courts. 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)). It makes no sense to interpret “unreasonable” in § 2254(d)(2)
in a manner different from that same word as it appears in § 2254(d)(1) – i.e., the factual error
must be so apparent that “fairminded jurists” examining the same record could not abide by the
state court factual determination. A petitioner must show clearly and convincingly that the
factual determination is unreasonable. See Rice v. Collins, 546 U.S. 333, 338, 126 S. Ct. 969,
974 (2006).
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“For purposes of § 2254(d)(1), ‘an unreasonable application of federal law is different from an
incorrect application of federal law.’” Harrington, 562 U.S. at 101 (citing Williams v. Taylor,
529 U.S. 362, 410, 120 S. Ct. 1495 (2000)).
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“[Section] 2254(d) does not require a state court to give reasons before its decision can be

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deemed to have been ‘adjudicated on the merits.’” Harrington, 562 U.S. at 100. Rather, “[w]hen

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

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

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or state-law procedural principles to the contrary.” Id. at 784-85. This presumption may be

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overcome by a showing “there is reason to think some other explanation for the state court’s

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decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct.

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2590 (1991)). Similarly, when a state court decision on a petitioner’s claims rejects some claims

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

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

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

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When it is clear, however, that a state court has not reached the merits of a petitioner’s

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

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

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

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The state courts need not have cited to federal authority, or even have indicated awareness

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of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362,

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365 (2002). Where the state court reaches a decision on the merits but provides no reasoning to

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

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

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

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

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

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

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reasonable basis for the state court to deny relief.” Harrington, 562 U.S. at 98.

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A summary denial is presumed to be a denial on the merits of the petitioner's claims.

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

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just what the state court did when it issued a summary denial, the federal court must review the
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state court record to determine whether there was any “reasonable basis for the state court to deny

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relief.” Harrington, 562 U.S. at 98. This court “must determine what arguments or theories

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

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

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holding in a prior decision of [the Supreme] Court.” Id. at 786. “Evaluating whether a rule

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application was unreasonable requires considering the rule’s specificity. The more general the

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rule, the more leeway courts have in reaching outcomes in case-by-case determinations.’” Id.

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Emphasizing the stringency of this standard, which “stops short of imposing a complete bar of

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federal court relitigation of claims already rejected in state court proceedings[,]” the Supreme

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Court has cautioned that “even a strong case for relief does not mean the state court’s contrary

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conclusion was unreasonable.” Id. (citing Lockyer v. Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166

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(2003)).

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The petitioner bears “the burden to demonstrate that ‘there was no reasonable basis for the

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state court to deny relief.’” Walker v. Martel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting

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Harrington, 562 U.S. at 98).

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B. Substitution of Counsel

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Cases with nearly impossible merits facts for a defendant sometimes breed desperate

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measures by that defendant. Such appears to be the case here. The evidence against petitioner

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was indeed overwhelming; during the course of his criminal proceedings, petitioner made five

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Marsden motions (substitution of counsel).6 The Court of Appeal performed a lengthy analysis of

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each motion. Although lengthy, the discussion is set forth in its entirety for completeness.

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On May 5, 2009, prior to the preliminary hearing, defendant moved
to replace Foster as his attorney, stating: “I just feel that I cannot
trust him because he is basically lying to me. If he is my lawyer, he
is supposed to be my lawyer. He is supposed to have my best
interest at hand. He should be able to tell me the truth about
anything concerning this case, and he is not doing it. He is not
telling me the truth.” As an example of Foster's alleged deceit,
defendant claimed that Foster told him on one occasion that he had
spoken to the prosecutor and on another occasion denied having
spoken to the prosecutor. Defendant also claimed that Foster lied

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People v. Marsden, 2 Cal. 3d 118 (1970).
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while advising him not to file a civil suit against the arresting
officers for excessive force, explaining: “He says you might be
giving them some evidence that they don’t have. So, two or three
times later when he comes to see me, I asked him again because I
already see the contradictions. . . . He says well, the background,
when they get it, they might feel you don’t have a civil case. Then
what is the [District Attorney] going to say? I said see, that is not
what you told me the last time, you know? It is like every time he
comes to see me it is a different story, you know.”
In response to defendant’s complaints, Foster explained that he
advised defendant that he did not believe a civil suit against the
officers would be successful because a jury would likely believe the
officers used reasonable force to apprehend defendant in light of the
fact that defendant was armed with a handgun and fleeing from the
officers when he was shot. Nevertheless, Foster provided defendant
with copies of relevant sections of a treatise on police misconduct.
He also provided defendant with a claim form, advised defendant of
the six-month filing deadline, and took independent pictures of the
scene and defendant's injuries. Foster told defendant that if he chose
to file a civil suit, he should wait until the last possible moment
because of the prospect of civil discovery occurring during the
middle of the criminal trial. Foster also suggested that such a
lawsuit might be a bargaining chip in settlement negotiations with
the prosecution. Foster further stated that he had no intention of
deceiving defendant.

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The trial court denied the Marsden motion, explaining: “First of all,
to the extent that there are any conflicts between [defendant] and
[Foster], I find in favor of [Foster]. I have no doubt of his veracity
and the recounting of facts of this case. Further, I find that [Foster]
has properly represented [defendant] and will continue to do so. I
further find that there has not been a breakdown in the relationship
such that [Foster] cannot and would not properly continue to
aggressively represent [defendant].” After denying the motion, the
trial court addressed defendant: “I could ask fifty panel lawyers to
come over here in an attempt to replace [Foster]. Not one of them
would exceed [Foster]’s skill or competence. You have no idea how
fortunate you are to have [Foster] represent you. I encourage you to
ask around. He is one of the best lawyers in this county. You could
not do better. I understand you are having some difficulty
understanding and communicating with him, but you are extremely
lucky to have him as your lawyer.”

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On September 28, 2009, defendant filed a written Marsden motion.
Defendant complained that he and Foster would “constantly argue”
about the facts of the case, the defense strategy, and whether or not
defendant should file a civil suit against the arresting officers,
adding: “I have actually cursed [Foster] out on several occasions.”

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Second Marsden Motion

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In response, Foster acknowledged that he and defendant had
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argued, not about the facts of the case, but about the legal
consequences of those facts. The largest point of contention was
whether or not defendant had a viable claim against the arresting
officers for excessive force. Foster explained: “And I did tell him
that I didn’t believe that a jury would award him any money based
on the fact that he was an armed fleeing felon who had the—the
officers had probable cause to believe had just committed an armed
robbery and an armed carjacking, and had he been allowed to—and
their efforts with helicopter and dog and officers and voice
commands for some period of time to ask him to come out of the
shed, his refusal to do so, and when he did then bolt out of the shed
and run from officers heading towards the fence, which had he been
able to clear it and get out into the neighborhood would have been
an armed felon loose in the neighborhood.” Nevertheless, as already
mentioned, Foster provided defendant with “probably 40 pages” out
of a treatise on police misconduct and told defendant that “perhaps
the District Attorney’s Office would be willing to bundle his civil
claim and his criminal case and resolve it in a manner that was
beneficial to [defendant].” However, the District Attorney’s office
“never indicated any willingness to do so,” and issued a letter to the
Sheriff’s Department finding that the shooting was lawful.
Defendant also claimed that Foster “told [him] on several occasions
to basically lay down and accept whatever the Prosecution is going
to do in this case.” Foster responded: “I think the term I used is
sometimes you are caught with your hand in the cookie jar. And my
advice to [defendant] was not to lay down, but there [were] some
charges that we had room to argue on and there were some charges
that we did not have room to argue on. [¶] And the fact that
property was taken from [Freitas] by force is a pretty clear evidence
of a robbery, and the fact that [Freitas] was taken about a half- mile
in his vehicle by force is also pretty strong evidence of a
kidnapping, and that—but there was plenty of room to argue that
this was not a kidnap for robbery, but rather a kidnap for
chauffeuring. . . . [¶] . . . There is a significant difference between a
simple kidnapping charge carrying a maximum of eight years
versus kidnapping for robbery, which carries life. Based on the
facts as I saw them, that was the best viable defense.”

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Defendant also asserted that Foster was “placed on the case in order
to set [him] up.” In connection with this assertion, defendant
claimed that when Foster replaced a previous panel attorney,
Renwick, who was initially assigned to his case, Foster told
defendant that Renwick did not have enough experience to handle
the case. Defendant did not believe this was the actual reason
because Renwick told him that he had 30 years experience. In
response, Foster denied that he was assigned to the case in order to
“set up” defendant and stated that he did not know the reason he
was assigned to take over the case from Renwick except that there
are minimum experience requirements in order to handle certain
cases. The trial court found no evidence that Foster was assigned
the case to set up defendant and added: “I will point out to you, I
don’t know what [Renwick]’s experience is, but the experience that
[Foster] has of a hundred jury trials, roughly a hundred jury trials
and been practicing since 1985, that is the kind of experience that
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most people would give their right arm to have as their defense
counsel.”

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Defendant also claimed that Foster was “railroading” him by stating
in an in limine motion that “Freitas would not be asked to attempt
to identify [defendant] in court as one of the individuals of the
attack,” and that there would be “no mention of the lawfulness of
the shooting.” When the trial court asked defendant why he would
want the jury to hear that the shooting was found to be lawful,
defendant replied: “Why not? It’s not hurting my case. What I’m
saying is this, right? It’s not hurting my defense. It’s not hurting
anything. Why would he not want this mentioned?”

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With respect to the issue of identification, Foster explained that,
while Freitas did not conclusively identify defendant at the
preliminary hearing, he did state that defendant “fit the size and
build” of one of the assailants. Foster also explained: “[W]hatever
play we can get with [Freitas’s] ability to identify or not identify
[defendant] is—it would be a [Pyrrhic] victory at most. While there
may be some inability, the fact of the matter is, there is an officer
who saw him run from the car who identified him. He’s on
videotape leaving the car in clothing that is found on him a short
distance away, a couple of hours away, hiding in somebody's shed.”
This evidence, coupled with the fact that Rentie would also testify
that defendant was the one who pulled the gun on Freitas, caused
Foster to believe that “the identity issue [was] very, very weak.”
Thus, Foster concluded that it would be better to have Freitas leave
the stand without attempting to identify defendant than to add what
would likely be a partial identification to the other identifications
the prosecution would be able to proffer. The trial court explained
to defendant that “the defense counsel is the captain of the ship, he
or she is the person who has to make the tactical decisions.”

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Also on the identification issue, defendant complained that Foster
had moved in limine to exclude the police in-car camera footage,
calling that decision “mind boggling.” Foster responded: “What can
be seen on the in-car camera is an individual who matches
[defendant’s] clothing description . . . getting out of the car,
walking away from the officer’s commands and then running from
the scene. So while the screen that I saw [was] not detailed enough
to be able to see the face of the individual who got out of the car,
the clothing is clearly discernible and it matches both the
descriptions of clothing by witnesses and also the clothing that
[defendant] had on him when he was apprehended.” The trial court
commented that Foster's attempt to keep this piece of evidence
away from the jury was a strategic decision and amounted to “good
lawyering.” Defendant responded: “To me, it’s not.”
Defendant also accused Foster of “feeding the Prosecution [his]
defense secrets.” As defendant explained this accusation: “Foster's
defense was to admit to kidnapping and try to fight kidnapping for
robbery. Since I refused to take that route, [Foster] alerted the
Prosecution, I believe, who then gave my co-defendant a deal to
testify against me a couple days before trial started.” Foster
responded: “I have not done that. In fact, as I searched for issues in
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this case, the potentially winnable issues that I see, number one, are
[sic ] that it was not kidnap for robbery as we discussed, and
number two, the prior convictions out of New York do not qualify
as strikes under California law. [¶] Neither of—the first issue was
discussed openly at preliminary hearing when I was asking the
Court not to hold [defendant] to answer. The second has not been
discussed with the Prosecution at all.” Foster also explained that the
reason the District Attorney decided to give Rentie a deal in
exchange for his testimony against defendant was that Freitas had
made some “racially derogatory remarks” on a social networking
website that could damage his credibility. When asked whether he
wanted to respond, defendant stated that he could not prove Foster
had divulged defense secrets without the trial court's “assistance.”
Defendant also complained that Foster refused to file a Pitchess
motion. [footnote omitted.] Foster responded that he did not believe
the facts of defendant’s case warranted the filing of such a motion.
The trial court pointed out that this was a strategic decision and
stated: “I don’t see anything from what you've presented here that
says that he has made a poor strategic decision.”

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Defendant further complained that Foster had not given him all of
his discovery and tried to keep him “in the blind about crucial
information.” Foster responded that except for a recorded interview
of Deputy McAtee, the officer who shot defendant, and the in-car
camera footage, defendant had seen all of the discovery. With
respect to the in-car camera footage, there were some technical
difficulties that prevented the footage from playing on Foster’s
computer. Foster and the District Attorney were working on a
solution to the problem. With respect to the recorded interview, the
audio on the DVD was not clear and defendant declined Foster’s
offer to play for him the separate audio recording of the interview.

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Defendant also complained that Foster “refused to approach the
[District Attorney] about possible plea negotiations after saying that
he would once [defendant’s] New York priors came back to show
that [defendant] suffered no strikes.” Foster explained that the
District Attorney was not interested in any sort of plea arrangement
with defendant.
Defendant further complained that Foster advised him to waive his
right to a speedy trial because of “the massive backup of cases” in
the trial court. Foster responded that he had never seen a serious
felony case dismissed because the trial court had a backlog of cases.
The trial court agreed. Finally, defendant asserted that Foster and
the prosecutor who was originally assigned to the case, Timothy
Carr, had “secret dealings” when they either “met or planned to
meet” outside his presence. Foster denied this allegation.

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At the conclusion of the hearing, the trial court asked Foster
whether his relationship with defendant had so deteriorated that he
did not feel he could provide adequate representation as a criminal
defense attorney. Foster responded: “No.” The trial court asked
whether Foster was willing to continue to represent defendant and
give his best efforts in doing so. Foster responded: “Yes.” The trial
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court then denied the Marsden motion.

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Following denial of the Marsden motion, defendant moved under
Faretta v. California (1975) 422 U.S. 806 [45 L.Ed.2d 562]
(Faretta ) to represent himself. However, when the trial court
questioned defendant concerning his Faretta motion, defendant
stated: “I don’t see how I can prepare for a defense.” The trial court
agreed and advised defendant: “I don't see how you can possibly
prepare for a defense of this case. You need a lawyer, sir.”
Defendant responded: “You’re right.” Nevertheless, defendant
reasserted his decision to represent himself, stating: “I would rather
represent myself and get multiple life terms than have [Foster]
represent me, period.” Over defendant’s objection, the trial court
postponed the matter until the following day to give defendant an
opportunity to reconsider his decision and attempt to work things
out with Foster. Defendant responded: “I’m not talking to this man
ever again, period.”

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The following day, the trial court asked defendant whether he had
changed his mind about representing himself. Defendant asked to
revisit the Marsden issue. The trial court declined the request and
began to question defendant to ensure he understood the
consequences of representing himself. Defendant answered that he
did not care whether he understood and then refused to answer any
more questions. After a short recess, the trial court reconvened the
hearing on the Marsden motion. The trial court then asked
defendant whether anything new had happened that he believed
would entitle him to have Foster replaced. Defendant refused to
respond. The trial court again denied the Marsden motion.
Returning to the Faretta motion, defendant still refused to answer
questions, which made it impossible for the trial court to determine
whether his request to represent himself was unequivocal, knowing,
and intelligent. Accordingly, the Faretta motion was denied.

18

3.

19

The following day, defendant again moved to replace Foster as his
attorney, stating that certain boxes that were checked on the written
Marsden motion were not discussed during the previous hearing.
While the trial court believed that matter had been fully litigated, it
nevertheless allowed defendant to address each checked box.

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Third Marsden Motion

The first box (a) stated: “Counsel has failed and/or refused to confer
with declarant concerning the preparation of declarant’s defense.”
Addressing this contention, defendant acknowledged that Foster
had conferred with him concerning the preparation of the defense
by complaining that he and Foster argued over the defense strategy.
And when the trial court commented that defendant was the one
who was refusing to speak to Foster, defendant admitted that he had
recently refused to speak to Foster. Foster added that he had
conferred with defendant “12 or 13 times” concerning the
preparation of the defense before defendant refused to see him. The
trial court ruled: “I do not find that counsel’s failed or has refused
to confer with the declarant. I think quite to the contrary. It seems to
be the other way around.”
11

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The second box (b) stated: “Counsel has failed and/or refused to
communicate with declarant.” Addressing this contention,
defendant stated: “B’s answered since A is answered.” The trial
court agreed. Defendant then complained about the substance of the
communication: “[T]he communication that we’re talking about,
you know, is him just telling me to lay down, just lay down; you
know, I’m going to argue that it wasn't a kidnap for robbery. [¶]
Other than that, lay down, that's the communication, period, and
argue that you didn’t suffer any prior strikes. That’s it.” As this
argument was fully addressed in the previous hearing, the trial court
moved on to the next issue.
The third box (c) stated: “Counsel has failed and/or refused to
subpoena witnesses favorable to the defense and deprived declarant
of the testimony critical to the defense.” Addressing this contention,
defendant explained that while the police were searching the
neighborhood following his flight from the Tercel, a trained police
dog “alerted” to a nearby residence. A background check on a
vehicle parked in front of the residence came back to a man with
“Antonio” as his middle name. At the time, officers believed this
could be a possible match for the suspect. Defendant complained
that Foster did not subpoena this individual and anyone else who
lived at the residence. However, as Foster explained, this individual
was Hispanic while the victim and his girlfriend identified the
assailants as African–American. Moreover, defendant was found a
short time later in a shed wearing the same clothes that were seen
on the person fleeing from the Tercel. And the following day, while
at the hospital, defendant admitted to police that he was the one
who ran from the vehicle. The trial court found that Foster made a
rational decision not to subpoena this individual.

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The fourth box (d) stated: “Counsel has failed and/or refused to
perform and/or to have performed investigation(s) critical and
necessary to the defense.” The trial court asked defendant: “Other
than what you have just previously stated regarding that house, is
there anything else he’s refused to do?” Defendant responded: “I
can’t even think right now, so I don’t know.” The trial court found
no basis for concluding that Foster had failed to adequately
investigate the case and moved on to the next issue.
The fifth box (g) stated: “Counsel has failed and/or refused to
prepare and file motion(s) critical to the defense.” Addressing this
contention, defendant repeated his assertion that Foster should have
filed a Pitchess motion, and also argued that Foster should have
moved to suppress the identifications made by Rentie and Sergeant
Turner. The trial court declined to readdress the Pitchess motion,
except to say that filing such a motion would have been
“inappropriate” or “extraneous.” With respect to the motions to
suppress, Foster stated: “I don't know the legal basis upon which
[defendant] suggests that either [Rentie’s] identification of him or
Sergeant Turner’s identification of him could be suppressed.” The
trial court ruled that Foster’s decision not to bring these motions
was rational and pointed out that “there is no requirement of the
defense counsel to bring irrational motions or motions based on
irrational beliefs or unsupportable beliefs.”
12

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The sixth box (h) stated: “Counsel has failed and/or refused to
impeach prosecution witness(es).” Addressing this contention,
defendant complained that Foster did not impeach Freitas or
Sergeant Turner at the preliminary hearing. Foster responded that
he cross-examined both individuals at the preliminary hearing and
explained that defendant had not mentioned anything else that he
believed should have been used to impeach these witnesses.
Defendant then explained that he wanted Sergeant Turner
impeached because Sergeant Turner “lied on the stand” when he
claimed that he did not know immediately who fired the shot after
defendant ran from the shed. Foster told defendant that he wanted
to save that for trial. The trial court responded: “It seems to me that
if I’m convinced that the preliminary hearing is going to end up
with a holding order, why would I fire all my—my ammunition at
the preliminary hearing? [¶] I’d save some for trial. [¶] Is that
essentially the way this worked out . . . .” Foster answered: “Yes.”
The trial court found this to be a “reasonable defense strategy” and
not a “refusal to impeach a prosecution witness at a preliminary
hearing.” With respect to Freitas, defendant complained that Foster
did not further impeach this witness after he stated at the
preliminary hearing that he could not identify defendant as one of
the assailants. Foster responded: “Well, if he’s complaining that the
witness—the victim didn’t identify him and then I left it alone, I’m
not sure that’s an appropriate complaint.” The trial court asked
whether that made sense to defendant. Defendant answered: “I
mean, everything else is getting shut down. Just shut down that,
too.”
The seventh box (j) stated: “Counsel has failed and/or refused to
declare prejudice and/or conflict against declarant.” Foster
responded: “I have no legal conflict and I have no level of prejudice
against [defendant] that would make it difficult or impossible for
me to perform my duties in his defense.” The trial court found no
evidence of prejudice or conflict sufficient to grant the motion on
these grounds.
The final box (k), which was handwritten, stated: “Counsel has
failed and/or refused to furnish declarant with all of the discovery
needed in order to defend himself; Counsel has been giving the
prosecution information about the declarant's defense on several
occasions.” Addressing this contention, defendant claimed to have
new evidence that Foster had supplied defense secrets to the
prosecution, specifically that he witnessed Foster “constantly”
sending text messages to the prosecutor, Carr, but did not know
what was in these text messages. Defendant asked for all e-mail and
text messages exchanged between Foster and Carr. Foster denied
sharing defense secrets with the prosecution. He also denied
sending any text messages to Carr, but admitted that he had sent emails over his cell phone, which may have looked like text
messages to defendant. Foster offered to share all such e-mails with
defendant. Foster also offered to share other items of discovery that
he recently received, but defendant refused to meet with him at the
jail. Defendant further complained that he had not received copies
of the “roughly 400” crime scene photos and was missing five
pages from Deputy McAtee’s interview. Foster agreed to look into
13

1
2
3

these missing pages for defendant. Foster also agreed to provide
defendant with copies of all crime scene photos that were not
duplicative.

5

The trial court denied the Marsden motion, stating: “I think we
have now [discussed] everything that we can possibly discuss from
the items that you've prepared and filed on September 28th. [¶] And
with that, I find that there [are] no grounds for—for the granting of
a Marsden motion.”

6

4.

7

On November 10, 2009, defendant again moved to replace Foster as
his attorney. This time, defendant complained about a particular email exchange between Foster and Carr in which defendant claimed
Foster violated the attorney-client privilege. The first e-mail is from
Foster explaining that he was having technical problems viewing
the in-car camera footage, which apparently had been sent to him as
a video file. Carr responded that he would try to get a “ready-made”
copy of the footage to Foster and also offered to allow him to view
the video file at the District Attorney’s office. Foster responded:
“[T]hanks for the offer. [T]he one I’m primarily interested in is the
camera at the scene of the initial traffic stop where my guy flees on
foot. [H]ave you looked at that one yet?” Carr responded: “[Y]eah I
watched it . . . you can see the red jacket, quality is not good
enough for a definitive ID. You can see him get out, start backing
away, and then take off.” (Italics added.)

4

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Fourth Marsden Motion

Defendant complained about the italicized portion of Foster’s email, explaining: “He is speaking to the Prosecution letting the
Prosecution know that I did—that I did this crime.” Defendant
further argued: “After [Foster] tells him that that was me, now all of
a sudden, since they see that they can’t see me on camera, now they
switch their tactics. Timothy Carr gets off the case. The district
attorneys switch their tactics and give my co-defendant a deal.”
In response, Foster explained that prior to the e-mail exchange, Carr
told him that defendant could be seen in the video fleeing from the
car, referring to defendant as “your guy.” Foster had not seen the
video because of technical problems and simply stated, using the
same terminology as Carr, that he was interested in seeing the video
purportedly showing “my guy,” i.e., defendant, fleeing from the car.
This was not meant to be taken as an admission that defendant was
actually the one depicted in the video. Foster further explained: “I
did not disclose to [Carr], I did not disclose to [Liske, the
prosecutor who replaced Carr on the case], I did not disclose to
anybody else outside of the privileged circle of confidence that only
[defendant] and I share, things that [defendant] has told me. I don't
do that. I didn’t do that in this case. I am not working for the
[District Attorney]. I am trying to do the best I can for [defendant].”
Foster also explained that Carr “was involved in another jury trial
when this case was first sent out to trial, and by necessity, the
District Attorney’s Office had to hand this case off to another
prosecutor to handle the trial. That explains [Liske]’s involvement
in the case, not, as far as I know, any efforts by anybody to remove
14

1

[Carr] for any sort of impropriety.”

2

The trial court accepted Foster’s explanation, found no violation of
the attorney-client privilege, and denied the Marsden motion.
Foster then stated that his relationship with defendant had not so
deteriorated that he would not be able to provide an adequate
defense. Defendant responded: “I’m going to file charges against
[Foster]. [¶] . . . [¶] What I’m telling you is a conflict of interest,
this man cannot be my attorney if I’m going to file charges against
him.” The trial court confirmed its ruling denying the Marsden
motion.

3
4
5
6
7
8
9
10

Defendant then renewed his Faretta motion. The trial court advised
defendant of the consequences and dangers of representing himself
and elicited responses from defendant indicating that he was
literate, fully understood these consequences, and nevertheless
wanted to represent himself. The trial court granted the motion.

12

On December 28, 2009, during a hearing on a motion to suppress
evidence, defendant told the trial court: “Well, I'm objecting to
everything that you have done ever since I have been pro per, and
I’m asking right now for counsel.” The trial court reappointed
Foster over defendant’s objection.

13

5.

14

On February 2, 2010, defendant again moved to replace Foster as
his attorney. Defendant argued that Foster had not provided him
with all of the e-mails and text messages exchanged with Carr.
Foster responded that he had given defendant all such e-mails and
that there were no such text messages. Defendant also stated that he
and Foster had “no relationship whatsoever” and argued that Foster
did not “want to fight for [him].” Defendant further complained that
Foster did not “fix” the Pitchess motion defendant filed while
representing himself.

11

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Fifth Marsden Motion

The trial court denied the Marsden motion, explaining that it
believed Foster had provided defendant with all the e-mails
exchanged with Carr. With respect to the other complaints, the trial
court stated that it would not entertain “the same issues over and
over again.” Following denial of the Marsden motion, defendant
again moved to represent himself. The trial court again advised
defendant of the consequences and dangers of representing himself
and again granted the motion allowing him to do so.
People v. Jones, 2012 WL 3860801 (Cal. App. 2012).
Respondent argues that no Supreme Court case has held that the assertedly erroneous
denial of a motion to substitute counsel based on a conflict between a defendant and attorney
states a federal claim in habeas. For the reasons that follow, at least in the circumstances of this
case, respondent is correct. In any event, even if such a federal claim has been authorized, on

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point, en banc, Ninth Circuit precedent in an AEDPA context finds such a claim unmeritorious.

2

However, a distinct, but related, claim encompassed within the substitution of counsel

3

dispute, understandably unaddressed by respondent, and in fairness unaddressed by the California

4

courts despite the issue having been raised,7 is whether the dispute with counsel tainted

5

petitioner’s “voluntary” request to represent himself, i.e., the Faretta waiver. There is no doubt

6

that an asserted lack of voluntariness in the waiver of counsel states a federal claim. McCormick

7

v. Adams, 621 F.3d 970, 976 (9th Cir. 2008). As discussed in footnote 7, this issue will be

8

addressed infra.

9

The analytical difficulty commences with the case of Schell v. Witek, 218 F.3d 1017 (9th

10

Cir. 2000) (en banc), a non-AEDPA case. Schell held that “[t]he denial without a hearing on a

11

motion to substitute counsel based on allegations of an ‘irreconcilable conflict’ implicates the

12

defendant’s Sixth Amendment right to counsel.” Id. at 1023. However, the case continued,

13

relying on prior Circuit precedent, to find that permitting a defendant to undergo trial with a

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7

The federal petition herein does not raise a Faretta claim (Faretta v. California, 422 U.S. 806
(1975)). Nevertheless, the precise issue of the “taint” of the voluntariness of the waiver of
counsel occasioned by the assertedly erroneous denial of the motions to substitute counsel was
expressly set forth in the Petition for Review at 6, and previously in the Court of Appeal
appellant’s brief at 49. Thus, the claim is exhausted; however, in fairness to the state courts, the
issue was never separately raised from the substitution of counsel issue and was certainly not
highlighted. The procedural issue here is what to do with this separate, but related claim.
The circumstances here are different than was the case in Robinson v. Kramer, 588 F.3d
1212 (9th Cir. 2009). Robinson had not exhausted his Faretta claim, nor had he in any way raised
such a claim in his federal petition, but for the first time it was referenced was on appeal. Thus,
the undersigned faces a no-win situation. Respondent can assert that the undersigned has become
petitioner’s attorney for recognizing a Faretta claim when no such claim has been formally
presented, thus far, in the federal petition. The undersigned is sensitive to his role as a neutral
adjudicator who should not become an advocate for one party. On the other hand, because the
issue has been exhausted, later assessments of the undersigned’s work can criticize the failure to
recognize the liberality of review of pro se pleadings. Moreover, if petitioner did raise this claim
on objections, the most likely outcome would be its remand to the undersigned to “start over” and
assess this claim as a magistrate judge’s determination that a claim has not been raised is often an
evaporative finding. Even if this claim were not raised until appeal to the Ninth Circuit, the
undersigned’s decision not to review the Faretta claim might well be determined to be in error as
appellate justices do not speak with one voice on a court’s duty to assist pro se petitioners.
In sum, the undersigned will risk the sting of respondent’s criticism rather than the
potential for a “do over” because the undersigned was too stingy in recognizing a potential claim.
The issue will be discussed in the text.
16

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counsel with whom the defendant had an irreconcilable conflict was to deprive the defendant of

2

any counsel whatsoever. Id at 1025. Two seminal Supreme Court cases generally dealing with

3

the right to counsel per se for trial and appeal were cited for this proposition along with Circuit

4

precedent. Id.8 Despite Schell being a non-AEDPA case, and despite the lack of Supreme Court

5

authority specifically establishing the “irreconcilable conflict” rule, AEDPA cases following

6

Schell adopted such a rule for their AEDPA holdings. See, e.g., Stenson v. Lambert, 504 F.3d

7

873, 886 (9th Cir. 2007).

8
9

Nevertheless, the Ninth Circuit in Plumlee v. Masto, 512 F.3d 1204 (9th Cir. 2007) (en
banc) significantly cut back the applicability of Schell to AEDPA cases. Distinguishing Schell as

10

a case involving the substitution issue without any hearing whatsoever, Plumlee at 1211, and

11

defining the “conflict” one had with his attorney requiring substitution as an actual conflict of

12

interest as traditionally defined, id. at 1210,9 the Ninth Circuit went on to hold:

13

Plumlee has cited no Supreme Court case—and we are not aware of
any—that stands for the proposition that the Sixth Amendment is
violated when a defendant is represented by a lawyer free of actual
conflicts of interest, but with whom the defendant refuses to
cooperate because of dislike or distrust.

14
15
16
Id. at 1211.
17

Citing Supreme Court cases for the proposition that a defendant is entitled to counsel who
18
“‘function[s] in the active role of an advocate,’” Plumlee went on to find that counsel in its case
19
had not ceased to be an advocate, or at least that the state court was not unreasonable in finding
20
such, id at 1211, simply because the defendant had an “irreconcilable conflict,” id. at1205, with
21
his counsel. Like the case here, defendant’s subjective distrust of his attorney in Plumlee reached
22
the point where the defendant was “compelled” to represent himself rather than continue with
23
counsel.
24
Petitioner’s case is indistinguishable from Plumlee as described in the entirety of the
25
analysis of the Court of Appeal set forth at length above. It is clear that petitioner did not trust his
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8

Gideon v. Wainwright, 372 U.S. 335 (1963) (trial); Entsminger v. Iowa, 386 U.S. 748 (1967)
(appeal).
9
That is, the attorney was encumbered with an interest adverse to that of his client.
17

1

attorney for many subjective reasons, e.g., the attorney was perceived by petitioner as conspiring

2

with the district attorney or “selling out;” petitioner and his counsel disagreed on tactics to the

3

point where petitioner believed that his counsel was not advocating for him, e.g., refusal to

4

impeach witnesses at a preliminary hearing, refusal to file a civil suit for police misconduct

5

during the pendency of the criminal action. Nevertheless, the trial judge patiently heard petitioner

6

out every time and found no objective basis for his mistrust of counsel.

7

Accordingly, either, as Plumlee found, no Supreme Court case recognizes a federal claim

8

in the circumstances presented, or in the alternative, fairminded jurists would not believe that the

9

state courts had unreasonably determined the substitution issue assuming the existence of a

10

federal claim.
This brings the discussion to the Faretta issue.10 It is clearly established that the waiver of

11
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one’s right to counsel is clearly established, and that the desire to represent oneself must be

13

unequivocally expressed. McCormick, supra. As set forth in footnote 7, the analysis here is

14

related, but distinct from the substitution of counsel issue. But, it must be emphasized that a

15

defendant should not be allowed to consciously or unconsciously manipulate the system. That is,

16

an expressed antipathy to counsel, which does not justify a substitution of counsel, cannot give

17

the then self-represented defendant an unassailable trump card card to play on appeal claiming

18

that he never wanted to represent himself after all, but that he was “compelled” to do so.

19

Petitioner made no claim in the state courts, nor in the federal petition, that he was not

20

advised properly by the court about the pitfalls of self-representation. Nor is the issue here that

21

petitioner was not permitted to represent himself. Rather the entire issue, indeed if the

22

undersigned has correctly determined that an issue exists at all, is the voluntariness of the waiver.

23

A waiver of the right to representation by counsel must be knowingly and voluntarily given;

24

Stetson v. Lambert, 504 F3d 873, 882 (9th Cir. 2007).

25

10

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The correct standard of review is a difficult issue for the Faretta issue. The state courts never
directly responded to petitioner’s statement within the larger substitution issue that the antipathy
between petitioner and counsel had tainted the Faretta issue. In order for the AEDPA standard to
apply, the undersigned would have to determine that the state courts had silently ruled on the
merits of this issue. However, no lengthy procedural analysis need be performed here—the result
does not differ whether the AEDPA standard applies or whether the issue is reviewed de novo.
18

1

The issue here is resolved by Arrendoddo v. Neven, 763 F.3d 1122 (9th Cir. 2013). In

2

this case, the defendant, like petitioner here, stated his desire to represent himself, but only

3

because he thought his present counsel incompetent. He stated to the court that he was being

4

compelled to represent himself because of this alleged incompetence—“I have no other choice

5

apparently.” Id. at 1127.

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8
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A defendant’s waiver of counsel must not only be knowing and
intelligent, it must also be voluntary. See Faretta, 422 U.S. at 835,
95 S. Ct. 2525; Patterson, 487 U.S. at 292 n.4, 108 S. Ct. 2389.
Arrendondo argues that his decision to forego representation, even
if knowing and intelligent, was not voluntary, “because he was
forced to choose between incompetent, unprepared, and ineffective
counsel versus self-representation.” Arrendondo’s argument fails on
the facts, as he has not established that his trial counsel was
constitutionally inadequate. We therefore need not, and do not,
consider whether his legal theory, if supported by the facts, would
entitle him to relief.
When unconstrained by 28 U.S.C. § 2254(d)(1), our cases do
indicate that a Faretta waiver is involuntary if the alternative is
constitutionally inadequate counsel. See Crandell v. Bunnell, 25
F.3d 754, 755 (9th Cir. 1994) (per curiam); United States v.
Robinson, 913 F.2d 712, 715–16 (9th Cir. 1990). Electing self
representation
over
unsatisfactory—but
constitutionally
sufficient—counsel does not make a defendant’s waiver of counsel
involuntary. See Robinson, 913 F.2d at 715–16. Even if Supreme
Court law has clearly established this standard—and we do not
decide whether it has—Arrendondo has not factually satisfied it.
Arrendondo, 763 F3d at 1136-37.
Every single of-record assertion by petitioner of his counsel’s alleged ineffectiveness was

20

reviewed by the trial judge. Under any standard of review, the undersigned finds the trial judge,

21

and the Court of Appeal, to be correct in finding that defense counsel was not

22

ineffective/incompetent. Petitioner advances no other assertions of ineffectiveness in this

23

petition, even assuming he has raised the issue of Faretta voluntariness herein. Under any level of

24

review by the undersigned of a pro se petition, the undersigned is not required to sua sponte comb

25

the record on petitioner’s behalf to raise and adjudicate additional, arguable ineffectiveness

26

issues, as if the undersigned were both petitioner’s lawyer and judge.

27

Accordingly, the entire substitution of counsel/Faretta issue should be denied.

28

C. Denial of Compulsory Process
19

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Petitioner committed his crimes with the help of a co-assailant, by name of Rentie. At

2

some point before petitioner’s trial, Rentie struck a plea agreement with the prosecution in

3

pertinent part requiring Rentie to testify truthfully if he was called as a witness. Being called as a

4

witness was not limited in the agreement to being called by the prosecution. It appears that

5

Rentie had not been sentenced prior to petitioner’s trial, but such delays when a co-defendant’s

6

case is pending trial are not unusual. In any event, Rentie believed that he was still facing

7

jeopardy when called by petitioner in his case, and being advised by his attorney, Rentie indicated

8

that he would invoke his Fifth Amendment rights. The court refused to require the prosecution to

9

immunize Rentie’s testimony, and Rentie did not testify.

10

According to the state habeas petition, petitioner believes that calling Rentie would have

11

been useful because the carjacking/kidnapping victim in petitioner’s case refused to acknowledge

12

on the witness stand that he knew Rentie as a friend. Other than potential, collateral

13

impeachment of the victim/witness, the undersigned is unsure how this knowledge of the victim

14

would have aided petitioner’s case as he does not explain such, i.e., there is no substantive rule

15

that friends of a co-assailant cannot be carjacked or kidnapped.11

16
17

The issue was not brought before the Court of Appeal—only in the state habeas petition
which was summarily denied; thus, there is no explained opinion denying the claim.

18

The Ninth Circuit has long held that the Due Process Clause may require the court to

19

order a grant of immunity in certain limited situations. United States v. Wilkes, 744 F.3d 1101;

20

Williams v. Woodsford, 384 F.3d 567, 599-600 (9th Cir. 2002). However, as observed by

21

respondent, citing Graves v. Swarthout, 471 Fed. Appx 768 (9th Cir. 2012), the Supreme Court

22

has never expressly adopted such a rule. Neither the independent research by the undersigned,

23

nor petitioner’s, demonstrates that the Graves unpublished observation is incorrect.

24
25

Such is the death knell of a claim controlled by AEDPA. Petitioner’s compulsory process
claim should be denied.

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28

11

The victim, Garrett Freitas, had his own problems with the criminal justice system, but there is
no allegation that petitioner could not obtain such information from the victim, either on direct or
cross-examination.
20

1

D. Incompetence to Stand Trial Claim

2

This claim required the undersigned to request supplemental briefing in that the trial judge

3

sua sponte and ex parte, during trial, asked medical personnel in the Sacramento County Jail to

4

opine on petitioner’s mental/emotional status. The claim is further complicated in that a very

5

pertinent record was not available to the Court of Appeal on review of this claim on direct appeal.

6

The entire history pertinent to this claim is as follows. Early on during the proceedings,

7

the trial judge hearing pre-trial matters expressed his view that he had no doubt about petitioner’s

8

competence to proceed to trial. The comment was made against the backdrop of a back-and-forth

9

concerning petitioner’s mental capacity at the time of the crime. For whatever reason, the trial

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judge initially believed competency to stand trial might be at issue:
The Court: [the trial judge was characterizing a motion
petitioner had made]
I’m also making a motion to the Court to look into the
mental capacity of defendant based on the fact that the defendant
does suffer from a mental illness and possibly did not have the
capacity to commit or even appreciate the criminality of his
conduct.
Defendant will move to argue that he cannot in any way
conform his conduct to the requirements of law.
That’s what was written.
So, we’ll look at that from a competency point of view.
I—Anthony Jones, I asked you if you prepared this
handwritten document. You said you did.
You also indicated yesterday or the day before that you had
prepared the other document, the other Marsden motion, and you
filled out the Faretta paperwork and you argued that yourself.
You have made a number of arguments to the court over the
last three days, and the—the farthest thing from my mind at this
point is that you’re incompetent to stand trial, that you have been
arguing vociferously and quite competently a number of motions.
What am I missing, Sir?
***
I said you were competent—you were competent enough to
write these documents. You were competent enough to argue these
matters.
Now you’re saying that you don’t believe you’re competent
to stand trial?
Let me ask defense counsel.
Is it your view that Mr. Jones is incompetent to stand trial?
Mr. Foster: I am not raising a competency issue as to this
client in this case.
The Court: So—
The Defendant [petitioner]: I believe what the motion states
is that I’m making a motion to the Court to look into the mental
capacity of defendant based on the fact the defendant does suffer
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from mental illness.
The Court: I’ve seen absolutely no indication whatsoever to
show that you are—to show that you are incompetent to stand trial.

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RT 195-97.
Thus, it is clear that the trial judge maintained no doubt as to petitioner’s capacity several

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months prior to trial. This statement was also made in the context of petitioner’s numerous

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attempts to represent himself. As often occurs however, when a petitioner represents himself at

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trial, conflict, confusion, surliness, and acting out arises because the petitioner does not like or

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understand the rulings of the court.

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On February 25, 2010, just prior to trial, the Clerk’s record indicates a “Court ordered
inmate [cell] extraction”:
Judge Davidian has been advised that you have been
medically cleared to attend court.
You are hereby ordered to appear in Department 37. . . . Be
advised that your refusal to comply with this order will be an
element to be considered in the Court’s determination whether or
not to terminate your right to represent yourself under the Faretta
ruling.
CT 374 (petitioner had apparently been suffering from declared cold and or flu symptoms).
On several, even numerous occasions, this conflict between petitioner and those in

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authority exasperated an otherwise very patient judge. See, e.g., RT 985-86 (warning petitioner

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what would happen should he engage in further disruptive behavior); RT 1070-86.

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Just a few days prior to the receipt of the mental examination at issue here, petitioner was

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again refusing to go to court because he thought himself physically ill. CT 394. However, there

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appears to be nothing in the record a few days later on Thursday March 4, (outside episodes of the

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“normal” conflict between petitioner and the court) which precipitated the giving of the

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psychological exam to petitioner, the result of which was reported the next court day, Monday

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March 8. Nor were there any advisements in the record that such a psychological exam had been

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requested; petitioner certainly had not been so advised. Apparently, the prosecution had not been

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advised either. The court record shows on March 8:

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Prior to the commencement of trial, this morning a Vernessa
Lauria (an administrative assistant & custodian of records at the
main jail) delivered a confidential jail psychologist report, and
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informed Judge Davidian the specifics related to the report, in
camera. The court directed the clerk to file and seal said report to
maintain confidentiality. According to contents of said report, the
court found defendant Jones may continue with this trial.

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CT 401.12
In assessing this issue of petitioner’s competence on direct review, the Court of Appeal

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determined:

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Nevertheless, defendant contends the following events reveal that
the trial court entertained a doubt as to his competence to stand
trial. The day after the prosecution began its case, a staff
psychologist at the county jail examined defendant pursuant to
section 4011.6. This section provides in pertinent part: “In any case
in which it appears to the person in charge of a county jail, city jail,
or juvenile detention facility, or to any judge of a court in the
county in which the jail or juvenile detention facility is located, that
a person in custody in that jail or juvenile detention facility may be
mentally disordered, he or she may cause the prisoner to be taken to
a facility for 72–hour treatment and evaluation pursuant to Section
5150 of the Welfare and Institutions Code 3 and he or she shall
inform the facility in writing, which shall be confidential, of the
reasons that the person is being taken to the facility.” (§ 4011.6.)
The staff psychologist who examined defendant determined that
defendant “[d]id not meet [Welfare and Institutions Code section]
5150 criteria at this time.” When the trial court was informed of this
evaluation, the court stated: “Let me put on the record very quickly
that I have received clearance from medical personnel at the jail
that we are ready to proceed, that there is no reason not to proceed.”

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Defendant argues that the trial court’s “choice of words indicates
that, prior to receiving the report, it had entertained a doubt about
whether [defendant] had the mental capacity to proceed.” And
because section 1367.1 provides that a misdemeanor defendant may
be referred for evaluation and treatment under section 4011.6 if the
court concludes there is reason to believe the defendant is mentally
disordered and may be incompetent to stand trial, defendant argues
that it “seems evident the trial court used section 1367.1 to
determine whether [defendant] was able to proceed with trial and
self-represent.” From this, defendant concludes that the trial court
erred in employing section 1367.1, pointing out that this provision
applies only in misdemeanor cases.

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Defendant’s premise is flawed. There is nothing in the record to
suggest that the trial court ordered the section 4011.6 evaluation to

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At the start of the court day, the court made this cryptic statement before the parties: “Let me
put on the record very quickly that I have received clearance from medical personnel at the jail
that we are ready to proceed, that there is no reason not to proceed. That will be entered in the
record, and let’s go ahead and call your witness.” RT 1251-52. Neither the prosecution nor the
defendant had made a comment on this statement.
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alleviate a doubt as to defendant's competence to stand trial. Indeed,
there is nothing in the record indicating that the trial court ordered
the evaluation. It is entirely possible that the “person in charge of
[the] county jail” (§ 4011.6) ordered the evaluation because he or
she had probable cause to believe that defendant was, “as a result of
mental disorder, a danger to others, or to himself or herself, or
gravely disabled.” (Welf. & Inst. Code, § 5150.) “[A] conclusion
that a defendant is dangerous or gravely disabled does not
necessarily mean the defendant is incompetent to stand trial.”
(People v. Ford (1997) 59 Cal. App. 4th Supp. 1, 5.) Nor does the
trial court’s statement that it received clearance from the jail to
proceed indicate that it ever doubted defendant's competence to
stand trial.
People v. Jones , 2012 WL 3860801, at *16.
The reasoning of the appellate court is difficult. If the exam were initiated by medical
personnel sua sponte, why was there any need to communicate a negative conclusion to the
court? The fact of receiving “clearance,” as documented by the trial judge certainly connotes a
request for the clearance in the first instance, e.g., a pilot requesting clearance to takeoff, a sick
employee seeking clearance from medical personnel to return to a certain job. A “clearance”
given by medical personnel out of the blue is unlikely. Nor did the trial judge in his short
statement, see footnote 12 below, even give a hint that he was somewhat surprised to have
received an uninvited “clearance.” This is all the more so in that this judge on a very recent
occasion had ordered other medical personnel to give medical “clearance” for physical ailments.
See, e.g., CT 376, 394 (March 2, 2010) (“The Court directed that a jail doctor examine the
defendant and report back to the Court on his condition. Communication was received that the
defendant was cleared . . . .”). The courtroom clerk had no doubt as to the reason for the
clearance: “JT DAY 21—see formal m.o. [minute order] Jail Psych Rpt (Conf) delivered, verbal
and specific info re def’s mental state in camera….The court ruled def Jones is capable of
continuing participation in this jury trial . . . .” ECF No.15 at 34, CT 17. Contrary to the
statement of the Court of Appeal, this notation leaves little doubt as to the trial connected purpose
of the psychological report. Moreover, the sealed psychological record which was before the
court on March 8, signed by the trial judge, was addressed to “Your Honor,” and it had a “Court
Return Date.” ECF No. 42 at 2, CT 404.

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In addition, the fact that it was personally delivered speaks to court direction rather than

2

some roving examination procedure where jail personnel just happen to show up before court,

3

unannounced, to deliver confidential, mental/emotional health “clearances.” This is not to say

4

that it is impossible for jail personnel to initiate an examination—just that it is very unlikely in

5

this context. Finally, there is absolutely no support in the record that the court was concerned

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with whether petitioner needed to be institutionalized in a mental facility versus having to appear

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and proceed at trial. All documents indicate that petitioner’s mental capacity to continue at trial

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was the stated concern.

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In any event, we do now know, unequivocally, that the trial judge did make the request.

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According to jail records, i.e., the report itself from Jail Psychiatric Services, provides: “Received

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4011 6 referral from Court # 37” [i.e., the trial court-- Department 37 of the Sacramento Superior

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Court]. This document was evidently not part of the record before the appellate court. But it

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leaves no doubt that the trial judge made the referral, i.e., request or order. ECF No. 15 at 32.

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Respondent argues that because the document demonstrating a court request as opposed to

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an uninvited clearance was not before the appellate court, it may not be considered pursuant to

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Cullen v. Pinholster, 563 U.S. 170 (2011), and normally, such would be the case. The issue

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becomes whether to expand the record, or stay the case pending consideration of the document

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establishing the contrary of the factual finding of the appellate court on the competency issue.

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There is good cause to stay this action pursuant to Rhines v. Weber, 544 U.S. 269 (2005).

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First, this is not a case where the petitioner was aware at all times about a requested psychiatric

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referral, and the contents of the report. Indeed, in the document itself, the psychologist noted that

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the defendant was in the dark as to why he was even seeing this psychologist. There is no

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indication that the jail records report referenced above indicating a court request was ever

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available to appellate counsel.13 Second, despite respondent’s valiant efforts to prove otherwise,

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Nor does it appear that the critical document referencing the court ordered exam was available
to appellate counsel. Counsel would certainly have referenced such a document in the briefing.
The report itself was not attached as an exhibit in the initial petition, but was later attached to the
amended petition giving rise to the inference that it was only fairly, recently discovered. In any
event, the state courts will be free to finally determine petitioner’s diligence if they so wish.
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there is no evidence that either petitioner or the prosecution attended the before-court in camera

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meeting of the judge with the jail services administrative assistant who orally delivered the

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findings of the psychologist. Court clerks have a duty to note for the record in court minutes who

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was in attendance at proceedings. The fact that only the judge and the jail administrative assistant

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were referenced leads to the only reasonable conclusion that no one else was present. Moreover,

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the trial judge’s cryptic summary on the record (footnote 12) did not indicate that the “clearance”

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he was referencing was any different in nature from the physical ailment clearance of a few days

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before—the critical mental/emotional health aspect was not referenced such that petitioner would

9

have been on notice right away that something awry had taken place. Thus, this is not a case

10

where a petitioner had fair, contemporaneous notice of the issue he now seeks to present, but did

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not awake to it until sometime later.

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Also, it seems only reasonable that the state courts should have the first attempt to equate

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the procedures used in this case with the constitutional requirements involved in the procedure

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used to determine whether one remains competent to proceed with trial, and to determine whether

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a completely ex parte, non-record proceeding initiated and determined by the trial judge, and then

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simply announced in court, satisfies those procedures. As the state appellate court noted, its

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statutory procedures regarding possible incompetence were designed to respond to federal

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substantive constitutional requirements. People v. Jones , 2012 WL 3860801, at * 14.

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In recommending that the competence claim be exhausted in state court, including any

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necessary evidentiary hearings on the facts, the undersigned is making no pronouncement on its

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validity. Further, no one doubts the constitutional mandate that a person incompetent to proceed

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to trial may not proceed until competence is regained, if ever. See People v. Jones at *14 (citing

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the pertinent cases). The issue here revolves about a trial judge making an unexplained, sua

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sponte inquiry of medical personnel, which in the case of a pro se defendant, involves not only an

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ability to comprehend the basics of the criminal proceeding, but also a modicum of ability to

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participate as his own counsel. See Indiana v. Edwards, 554 U.S. 164 (2008).14 And it may have

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The undersigned does not believe, however, that respondent’s attempt to conflate the cognitive
and assistance aspects of trial competency is correct. Nor is it correct to assert that debilitating
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been that the trial judge in this case was not inferring a doubt about petitioner’s capacity to stand

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trial per se, but rather his capacity to conduct his own defense, a slightly different standard. Id. It

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is not possible, however, to determine which of the two competency issues the trial judge may

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have decided given the ex parte, unexplained nature of the trial judge’s request to jail personnel

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using an odd statute to determine such competency.15 Quaere, whether California’s “stop the

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trial” procedure would even apply to a competency to act as one’s own counsel situation. Such a

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question should be answered by the California courts in the first instance. And, it may be that the

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California courts might desire to make a statement to their trial judges—do not perform behind-

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the-scenes, ex parte investigation on matters critical to trial.

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Finally, the undersigned again recognizes that the trial judge in this case determined that

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petitioner had an abundance of “competence” to participate in his trial nearly six months before

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the trial began. But a lot can happen in six months to one’s mental/emotional state, especially

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when one is confined, and competency half a year ago does not inexorably lead to the conclusion

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of competency a half year later.

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The competency issue should be stayed by this court pending further exhaustion in the

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state courts.

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Conclusion

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The undersigned therefore recommends that the first two issues be denied on their merits,

19

and then stay the case directing petitioner to exhaust his state remedies on the competency issue

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with the new evidence he presents here. This procedure does no violence to the usual rule that

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mixed petitions, i.e., petitions with exhausted and unexhausted claims, should be dismissed. The

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Ninth Circuit has recently determined that a mixed petition need not be dismissed when

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authorizing a Rhines stay. Mena v. Long, __F3d__, 2016 WL 625405 (9th Cir. 2016). Nothing

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“emotional” illnesses which preclude a defendant from “assisting himself” in the prosecution of a
case are anything different from a “mental illness” when it comes to determining competency
especially with respect to the second factor of that analysis. However, the undersigned makes no
finding whether petitioner suffered from any such mental illness.
15
The undersigned does not think it possible for a reasonable inference to be drawn that the judge
was concerned with whether to give petitioner a few days off from trial in the “comfort” of a
mental institution pursuant to Cal. Welfare and Institutions Code 5150.
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in that decision would preclude adjudicating two merits issues while they are freshly briefed, but

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not entering judgment thereon, prior to the granting of a stay.

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Accordingly, IT IS HEREBY RECOMMENDED:
1. That Claims 1 and 2 herein (substitution of counsel/Faretta and compulsory process
issues) be denied on their merits;

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2. No judgment be entered on Claims 1 and 2 at this time;

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3. That the case be stayed pursuant to Rhines v. Weber and petitioner be directed to

8

commence further exhaustion proceedings within 30 days of district judge adoption of

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these Findings and Recommendations.

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

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

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(14) days after being served with these findings and recommendations, any party may file written

13

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

14

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

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shall be served and filed within seven (7) days after service of the objections. The parties are

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advised that failure to file objections within the specified time may waive the right to appeal the

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District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: March 21, 2016

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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