Burkhart -v- Gonzalez

Filing 36

ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Lucy H. Koh on 5/30/12. (Attachments: # 1 certificate of service)(mpb, COURT STAFF) (Filed on 6/1/2012)

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NOT FOR CITATION

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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BRIAN BURKHART,
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Petitioner,
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vs.
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THERESA GONZALEZ,
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Respondent.
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No. C 10-1967 LHK (PR)
ORDER DENYING PETITION FOR
WRIT OF HABEAS CORPUS;
DENYING CERTIFICATE OF
APPEALABILITY

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Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254. The Court ordered Respondent to show cause why the petition
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should not be granted. On October 27, 2010, Respondent filed a motion to dismiss for failure to
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exhaust state remedies. On February 9, 2011, the Court granted Respondent’s motion, and
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directed Petitioner to elect how he wished to proceed. On February 24, 2011, Petitioner moved
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to dismiss his unexhausted claim and proceed only with his remaining exhausted claim. On
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March 2, 2011, the Court dismissed Petitioner’s unexhausted claim, and ordered Respondent to
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file an answer addressing the merits of Petitioner’s remaining exhausted claim. Respondent did
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so. Although given an opportunity, Petitioner did not file a traverse. Having reviewed the briefs
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and the underlying record, the Court concludes that Petitioner is not entitled to relief based on
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the claim presented, and DENIES the petition.
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Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
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BACKGROUND

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On June 27, 2007, a jury found Petitioner guilty of assault and false imprisonment. (CT

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106-07, 113; Resp. Ex. F at 1.) Petitioner was sentenced to a term of seven years eight months.

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(CT 149, 161.) On March 26, 2009, the California Court of Appeal affirmed the judgment.

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(Resp. Ex. F.) On June 10, 2009, the California Supreme Court denied review. (Resp. Ex. H.)

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DISCUSSION
A. Standard of Review
This Court may entertain a petition for writ of habeas corpus “in behalf of a person in
custody pursuant to the judgment of a State court only on the ground that he is in custody in

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violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The

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petition may not be granted with respect to any claim that was adjudicated on the merits in state

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court unless the state court’s adjudication of the claim: “(1) resulted in a decision that was

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contrary to, or involved an unreasonable application of, clearly established Federal law, as

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determined by the Supreme Court of the United States; or (2) resulted in a decision that was

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based on an unreasonable determination of the facts in light of the evidence presented in the

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State court proceeding.” 28 U.S.C. § 2254(d).

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“Under the ‘contrary to’ clause, a federal habeas court may grant the writ if the state

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court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of

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law or if the state court decides a case differently than [the] Court has on a set of materially

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indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). “Under the

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‘reasonable application clause,’ a federal habeas court may grant the writ if the state court

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identifies the correct governing legal principle from [the] Court’s decisions but unreasonably

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applies that principle to the facts of the prisoner’s case.” Id. at 413.

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“[A] federal habeas court may not issue the writ simply because the court concludes in its

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independent judgment that the relevant state-court decision applied clearly established federal

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law erroneously or incorrectly. Rather, the application must also be unreasonable.” Id. at 411.

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A federal habeas court making the “unreasonable application” inquiry should ask whether the

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state court’s application of clearly established federal law was “objectively unreasonable.” Id. at
Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
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409.

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B. Petitioner’s Claim

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As grounds for federal habeas relief, Petitioner claims that the trial court violated his

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right to self-representation by denying his Faretta request. See Faretta v. California, 422 U.S.

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806 (1975). Trial was scheduled to begin on Monday, June 18, 2007. (Resp. Ex. F at 3.) On

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Friday, June 15, 2007, the trial court held a hearing to address Petitioner’s motion to substitute

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counsel pursuant to People v. Marsden, 2 Cal.3d 118 (1970). (Id.) At the hearing, Petitioner

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explained that he was dissatisfied with counsel because counsel waived the preliminary hearing

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without telling Petitioner why; counsel had no defense strategy; counsel had “hung up” on

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Petitioner; counsel had not visited Petitioner; and counsel had been condescending to Petitioner.

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(RT 36-37.) Petitioner relayed several other complaints regarding his unhappiness with counsel.

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(RT 37-38.) In response, counsel answered that he had waived the preliminary hearing in order

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to leave a plea offer open (RT 41-42); there was a misunderstanding regarding the “hang up”

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(RT 40-41); counsel had visited Petitioner five times at the main detention facility (RT 40); and

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counsel averred that he had spoken with Petitioner regarding the case, the issues, the potential

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testimonies being offered, and had followed up on all relevant investigation (RT 41).

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Ultimately, the trial court denied Petitioner’s motion to substitute counsel, finding that counsel

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had thus far provided adequate representation. (RT 43.) Then, the following colloquy occurred:

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PETITIONER: He hasn’t gotten a defense strategy, he hasn’t talked to me,
crossness.

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THE COURT: The trial will be next week. You can talk that over with him,
and I’m sure you’ll have contact with him.

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PETITIONER: Now I fear retaliation

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THE COURT: You don’t have to worry about that.

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PETITIONER: Are you sure?

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THE COURT: [Counsel] has represented –

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PETITIONER: After the hang-up he’s been very disrespectful. I would
rather go pro per than have this man represent me at trial. I don’t trust him.

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THE COURT: You’re better off with an attorney representing you during
trial, believe me. At this time I am denying the Marsden motion, and
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[Petitioner’s] case will be on at 1:30.
(RT 43.)
On direct appeal, the California Court of Appeal concluded that Petitioner’s request for

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self-representation was equivocal and was made in response to the trial court’s denial of his

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motion to substitute counsel. (Resp. Ex. F at 3.) Because the motion was “apparently made in

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passing anger or frustration,” the appellate court reasoned that the trial court’s denial was proper.

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(Id.) Alternatively, the Court of Appeal found that even if Petitioner’s request was unequivocal,

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Petitioner’s failure to renew the request or invoke his Faretta right again during trial waived the

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request. (Id. at 4.)

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A criminal defendant has a Sixth Amendment right to represent himself. See Faretta,

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422 U.S. at 818-19. The decision to represent oneself and waive the right to counsel must be

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unequivocal, knowing and intelligent, timely, and not for purposes of securing delay. See id. at

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835. The only factor at issue here is whether the request was unequivocal.

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Requiring that the request for self-representation be unequivocal ensures that the

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defendant does not inadvertently waive his right to counsel and prevents him from taking

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advantage of the mutual exclusivity of the rights to counsel and self-representation. See Adams

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v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). If a defendant equivocates, he is presumed to

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have requested the assistance of counsel. See id. Generally, although not clearly established, to

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determine whether a request for self representation was unequivocal, courts consider “the timing

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of the request, the manner in which the request was made, and whether the defendant repeatedly

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made the request.” Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007). A request for

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self-representation must be evaluated in context. See Robinson v. Kramer, 588 F.3d 1212, 1218

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(9th Cir. 2009) (requiring a fact-specific inquiry). Such a request is considered equivocal when

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it is a “momentary caprice,” “the result of thinking out loud,” or an “impulsive reaction.”

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Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir. 1990); see also Adams, 875 F.2d at 1445. The

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determination of whether a petitioner unequivocally requested self-representation is a factual

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matter, and “federal courts must give significant deference to the trial court’s factual findings.”

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Stenson, 504 F.3d at 882 (citing 28 U.S.C. § 2254(e)(1)).
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Here, during a Marsden hearing, Petitioner requested substitution of counsel because he

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felt that his counsel was disrespectful, not performing, and untrustworthy. The trial court

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concluded otherwise, and denied the motion. Immediately in response to the denial, Petitioner

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requested to represent himself. Notably, this request was made just days before Petitioner’s

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scheduled trial date. As in Jackson, the request was an “impulsive reaction” to the court’s denial

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of his Marsden motion. Jackson, 921 F.2d at 888-89; see also United States v. Mendez-Sanchez,

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563 F.3d 935, 939 (9th Cir. 2009) (“A request to represent oneself made while at the same time

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stating a preference for representation by a different lawyer and rearguing the change of counsel

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motion is insufficient to invoke Faretta.”). Petitioner’s actions support the state court’s

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conclusion that rather than possessing a genuine desire to represent himself, the motivation

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behind the Faretta request was borne out of frustration by his inability to replace his counsel.

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See Jackson, 921 F.2d at 889 (concluding that the Faretta request was equivocal after petitioner

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stated, “Hey, I don’t see why [the motion for substitute counsel] isn’t granted. I’m doing the

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filing of the motion [for a new trial]. What good is [appointed trial counsel] doing for me now?

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I want to fight in pro per then. Relieve him and I do this myself.”). Moreover, Petitioner never

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raised any objection, nor renewed his request to represent himself until after the jury had

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returned its verdict.

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In this case, the California Court of Appeal found that Petitioner’s Faretta request was

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equivocal because it was a “spur of the moment,” “ambivalent request” “made in passing anger

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or frustration.” (Resp. Ex. F at 3-4.) In light of the evidence, those factual findings were not

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unreasonable determinations of the record. 28 U.S.C. § 2254(d)(2). Petitioner is not entitled to

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federal habeas relief.

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CONCLUSION

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Petitioner’s petition for writ of habeas corpus is DENIED.

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The federal rules governing habeas cases brought by state prisoners require a district

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court that denies a habeas petition to grant or deny a certificate of appealability (“COA”) in its

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ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has

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not shown “that jurists of reason would find it debatable whether the petition states a valid claim
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of the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Accordingly, a COA is DENIED.

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED:

5/30/12

_________________________
LUCY H. KOH
United States District Judge

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Order Denying Petition for Writ of Habeas Corpus; Denying Certificate of Appealability
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