Kim v. Falk et al

Filing 23

ORDER dismissing this case with prejudice by Judge Christine M. Arguello on 6/11/13. There is no basis on which to issue a certificate of appealability. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Christine M. Arguello
Civil Case No. 12-cv-01419-CMA
YOOBANG KIM,
Applicant,
v.
JAMES FALK, Warden of the Sterling Correctional Facility, and
THE ATTORNEY GENERAL OF THE STATE OF COLORADO,
Respondents.

ORDER ON APPLICATION FOR WRIT OF HABEAS CORPUS

This matter is before the Court on the Application for a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2254 (Doc. # 1) (“the Application”), filed pro se by Applicant
Yoobang Kim. Respondents have filed an Answer to Application (Doc. # 18) (“the
Answer”), and Mr. Kim has filed a Response to Answer to Application (Doc. # 21)
(“the Traverse”). After reviewing the record, including the Application, the Answer, the
Traverse, and the state court record, the Court concludes that the Application should
be denied and the case dismissed with prejudice.
I. BACKGROUND
Mr. Kim is a prisoner in the custody of the Colorado Department of Corrections.
He is challenging the validity of his conviction in Arapahoe County District Court case
number 02CR2132.

Mr. Kim elected to represent himself at trial and advisory counsel was appointed
to assist him. The evidence presented to the jury revealed the following:
In July 2002, defendant attacked his girlfriend (the victim) with
a golf club and metal pipe after returning from drinks at a local bar. The
victim’s daughter woke up when she heard them arguing, attempted to call
the police, and was struck by defendant. The victim’s son then woke up,
started screaming, and was likewise struck in the head by defendant.
After the victim was beaten unconscious, defendant fled the apartment.
The victim and her children were taken to the hospital, where the victim
remained for two weeks due to severe head and facial injuries, including
multiple fractures and the loss of an eye. When defendant was arrested
the next day, he admitted striking the victim and her children and told
police the victim’s flirtatious behavior at the bar had enraged him.
People v. Kim, No. 04CA2508, slip op. at 1 (Colo. App. June 25, 2009) (unpublished)
(Doc. # 1-1 at 23). The jury acquitted Mr. Kim of attempted first degree murder.
He was convicted of first degree assault, second degree assault, child abuse resulting
in serious bodily injury, and two crime of violence counts. He was sentenced to a total
of seventy years in prison.
The Colorado Court of Appeals affirmed the judgment of conviction on direct
appeal. See id. (Doc. # 1-1 at 22-43.) On March 15, 2010, the Colorado Supreme
Court denied Mr. Kim’s petition for writ of certiorari on direct appeal. (See Doc. # 12-6.)
Mr. Kim also pursued postconviction relief in state court, but the state court postconviction proceedings are not relevant to the Court’s consideration of the merits
of his claims in this action.
Mr. Kim asserts three claims for relief in the Application that relate to his right
to counsel. He first claims he was denied substitute counsel in violation of his Sixth
Amendment rights. He contends in claim two that he did not knowingly, voluntarily,
and intelligently waive his right to counsel in violation of his Sixth and Fourteenth
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Amendment rights. Mr. Kim finally claims he was denied due process when he was not
allowed to revoke his waiver of counsel. The Colorado Court of Appeals described the
factual background for these claims as follows:
Initially, the public defender represented defendant, but later
alternate defense counsel (ADC) represented him after the public
defender withdrew due to a conflict not at issue here. In March 2004,
defendant filed several pro se motions alleging ADC did not know the
Korean language or customs; did not spend a reasonable amount
of time on his case; was lazy; did not succeed in getting the district
attorney to drop any of the charges and thus had not tried hard enough;
recommended defendant consider the district attorney’s plea bargain
offer that would have resulted in forty-five years in prison; and voiced
concerns regarding the likelihood of success at trial. Consequently,
defendant requested removal of ADC and new representation.
In April 2004, defendant reiterated his complaints at a hearing
before the trial court denied his motion. The trial court stated it would not
allow ADC to withdraw unless defendant planned to hire private counsel,
which defendant could not afford to do. The trial court explained ADC was
conflict-free and competent, and thus defendant could not receive
substitute counsel at state expense. In explaining its ruling to defendant,
the trial court stated it did not believe defendant’s request for a new
attorney was a request to represent himself but rather was a request
only for another attorney more to defendant’s liking. The trial court then
explicitly asked defendant if he wanted to have any attorney during the
trial, to which defendant replied, through his interpreter, that he was “going
to represent himself.”
After defendant stated his desire to represent himself, the court
(1) told him that he had a right to do so; (2) strongly cautioned him against
the pitfalls and dangers of doing so; (3) noted that the Korean legal
system and American legal system were different and that he would
be expected to conduct himself in conformity with the rules of evidence,
procedure, and jury selection, Colorado law, and the United States
Constitution; (4) reiterated that ADC still represented him, that no sufficient
reason for his withdrawal had been offered, and that he should talk over
his decision to represent himself with ADC over the course of the next
week; and (5) told him that the court was not permitted to assist him in his
pro se defense, that the process was far from simple and the chance for
mistakes was great, that he faced forty-eight years incarceration from one
count alone and upwards of one hundred years if convicted on all counts,
and that they would revisit the issue the following week.
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At the hearing a week later, which occurred less than three days
before trial was scheduled to begin, defendant again stated that he wished
to represent himself and that he remembered the advisement from the
previous hearing. The prosecutor objected to defendant’s request for selfrepresentation, stating he believed defendant was merely “attempting to
engineer a continuance by asking to represent himself on the eve of trial.”
The trial court then reconfirmed defendant wanted to allow ADC
to withdraw as his attorney, and defendant unequivocally stated he did.
The court asked if he would like advisory counsel, in which capacity the
prosecutor suggested ADC could act, to which defendant replied, “I know
it’s very good for me to have advisory attorney with me but I hope I can
get another attorney.” The trial court then made findings regarding its
advisement from the week before and continued trial until August 2004.
In May 2004, when defendant was proceeding pro se, he again
reiterated to the court ADC’s shortcomings, nearly all of which regarded
trial strategy, and asked the court what reasons would be sufficient to
have ADC removed for cause in order for him to get new substitute
counsel appointed. In August 2004, shortly before trial, defendant
asked the court to negotiate a reasonable plea bargain between the
district attorney and him, and he again reiterated ADC’s deficiencies as
he perceived them. He also requested another continuance, which the
trial court denied along with defendant’s request for representation, which,
the court noted, presented no new evidence beyond what the court
already had determined was insufficient to warrant appointing new
counsel.
(Doc. # 1-1 at 24-27.)
II. STANDARD OF REVIEW
The Court must construe the Application and the Traverse liberally because
Mr. Kim is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519, 52021 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
Title 28 U.S.C. § 2254(d) provides that a writ of habeas corpus may not be
issued with respect to any claim that was adjudicated on the merits in state court unless
the state court adjudication:

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(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d). Mr. Kim bears the burden of proof under § 2254(d). See
Woodford v. Visciotti, 537 U.S. 19, 25 (2002) (per curiam).
The Court reviews claims of legal error and mixed questions of law and fact
pursuant to 28 U.S.C. § 2254(d)(1). See Cook v. McKune, 323 F.3d 825, 830 (10th Cir.
2003). The threshold question the Court must answer under § 2254(d)(1) is whether
Mr. Kim seeks to apply a rule of law that was clearly established by the Supreme Court
at the time his conviction became final. See Williams v. Taylor, 529 U.S. 362, 390
(2000). Clearly established federal law “refers to the holdings, as opposed to the dicta,
of [the Supreme] Court’s decisions as of the time of the relevant state-court decision.”
Id. at 412. Furthermore,
clearly established law consists of Supreme Court holdings in cases where
the facts are at least closely-related or similar to the case sub judice.
Although the legal rule at issue need not have had its genesis in the
closely-related or similar factual context, the Supreme Court must have
expressly extended the legal rule to that context.
House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). If there is no clearly established
federal law, that is the end of the Court’s inquiry pursuant to § 2254(d)(1). See id. at
1018.
If a clearly established rule of federal law is implicated, the Court must determine
whether the state court’s decision was contrary to or an unreasonable application of that
clearly established rule of federal law. See Williams, 529 U.S. at 404-05.
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A state-court decision is contrary to clearly established federal
law if: (a) “the state court applies a rule that contradicts the governing law
set forth in Supreme Court cases”; or (b) “the state court confronts a set of
facts that are materially indistinguishable from a decision of the Supreme
Court and nevertheless arrives at a result different from [that] precedent.”
Maynard [v. Boone], 468 F.3d [665,] 669 [(10th Cir. 2006)] (internal
quotation marks and brackets omitted) (quoting Williams, 529 U.S. at
405). “The word ‘contrary’ is commonly understood to mean ‘diametrically
different,’ ‘opposite in character or nature,’ or ‘mutually opposed.’”
Williams, 529 U.S. at 405 (citation omitted).
A state court decision involves an unreasonable application of
clearly established federal law when it identifies the correct governing
legal rule from Supreme Court cases, but unreasonably applies it to
the facts. Id. at 407-08. Additionally, we have recognized that an
unreasonable application may occur if the state court either unreasonably
extends, or unreasonably refuses to extend, a legal principle from
Supreme Court precedent to a new context where it should apply.
House, 527 F.3d at 1018.
The Court’s inquiry pursuant to the “unreasonable application” clause is an
objective inquiry. See Williams, 529 U.S. at 409-10. “[A] federal habeas court may
not issue the writ simply because that court concludes in its independent judgment that
the relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather that application must also be unreasonable.” Id. at 411.
“[A] decision is ‘objectively unreasonable’ when most reasonable jurists exercising
their independent judgment would conclude the state court misapplied Supreme Court
law.” Maynard, 468 F.3d at 671. Furthermore,
[E]valuating whether a rule application was unreasonable requires
considering the rule’s specificity. The more general the rule, the more
leeway courts have in reaching outcomes in case-by-case determinations.
[I]t is not an unreasonable application of clearly established Federal law
for a state court to decline to apply a specific legal rule that has not been
squarely established by [the Supreme] Court.

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Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (internal quotation marks omitted).
In conducting this analysis, the Court “must determine what arguments or theories
supported or . . . could have supported[] the state court’s decision” and then “ask
whether it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme] Court.” Id.
In addition, “review under § 2254(d)(1) is limited to the record that was before the state
court that adjudicated the claim on the merits.” Cullen v. Pinholster, 131 S. Ct. 1388,
1398 (2011).
Under this standard, “only the most serious misapplications of Supreme Court
precedent will be a basis for relief under § 2254.” Maynard, 468 F.3d at 671; see also
Richter, 131 S. Ct. at 786 (stating that “even a strong case for relief does not mean the
state court’s contrary conclusion was unreasonable”).
As a condition for obtaining habeas corpus from a federal court, a state
prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.
Richter, 131 S. Ct. 786-87.
The Court reviews claims asserting factual errors pursuant to 28 U.S.C.
§ 2254(d)(2). See Romano v. Gibson, 278 F.3d 1145, 1154 n.4 (10th Cir. 2002).
Section 2254(d)(2) allows the Court to grant a writ of habeas corpus only if the relevant
state court decision was based on an unreasonable determination of the facts in light
of the evidence presented to the state court. Pursuant to § 2254(e)(1), the Court must
presume that the state court’s factual determinations are correct and Mr. Kim bears the
burden of rebutting the presumption by clear and convincing evidence. “The standard is
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demanding but not insatiable . . . [because] ‘[d]eference does not by definition preclude
relief.’” Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (quoting Miller-El v. Cockrell, 537
U.S. 322, 340 (2003)).
If a claim was not adjudicated on the merits in state court, and if the claim also
is not procedurally barred, the Court must review the claim de novo and the deferential
standards of § 2254(d) do not apply. See Gipson v. Jordan, 376 F.3d 1193, 1196
(10th Cir. 2004).
III. MERITS OF APPLICANT’S CLAIMS
A.

CLAIM ONE
As set forth above, Mr. Kim first claims he was denied substitute counsel in

violation of his Sixth Amendment rights. The Sixth Amendment to the United States
Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the
right . . . to have the Assistance of Counsel for his defence.” The right to counsel
includes not only the right to retain counsel, but also the right of an indigent defendant
to have counsel appointed for him at state expense. Gideon v. Wainwright, 372 U.S.
335 (1963). With respect to the issue of substitute counsel, a criminal defendant has
a constitutional right to representation by counsel that is free from conflicts of interest.
See Cuyler v. Sullivan, 446 U.S. 335, 348 (1980).
The Supreme Court has recognized at least the possibility of a conflict of interest
between a criminal defendant and his or her attorney in various circumstances. See,
e.g., Mickens v. Taylor, 535 U.S. 162, 164-65 (2002) (recognizing a “potential conflict
of interest” when appointed counsel previously represented the murder victim in a
separate case); Wood v. Georgia, 450 U.S. 261, 270-72 (1981) (suggesting strong
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“possibility of a conflict of interest” when defendants were represented by a lawyer
hired by their employer); Cuyler, 446 U.S. at 348 (“Since a possible conflict inheres in
almost every instance of multiple representation, a defendant who objects to multiple
representation must have the opportunity to show that potential conflicts impermissibly
imperil his right to a fair trial.”) However, Mr. Kim fails to identify any clearly established
Supreme Court law, and the Court is not aware of any, that provides an indigent
criminal defendant with a constitutional right to substitute counsel in the absence of an
actual conflict of interest. In fact, the Supreme Court has made it clear that the Sixth
Amendment does not guarantee “a ‘meaningful relationship’ between an accused and
his counsel.” Morris v. Slappy, 461 U.S. 1, 14 (1983).
Mr. Kim specifically contends in support of claim one that his Sixth Amendment
right to counsel was violated when the trial court refused to appoint substitute counsel
because counsel “was not acting appropriately or adequately in the plea bargaining
process,” counsel failed to seek a favorable plea bargain and threatened to inform the
jury that Mr. Kim was guilty if he did not accept the prosecution’s first offer, and counsel
had only minimal communication with Mr. Kim that was hampered by counsel’s lack of
familiarity with Korean culture and custom. (See Doc. # 1-1 at 6-7.) Mr. Kim raised the
same general concerns in state court on direct appeal:
Here, defendant alleges that ADC’s failures (1) to procure a
favorable plea bargain; (2) to visit him in prison and spend a “reasonable
amount of time on his case”; (3) to understand the Korean language and
customs; and (4) to voice a positive outlook regarding success at trial
demonstrated good cause to appoint substitute counsel.
(Doc. # 1-1 at 29-30.) Although Mr. Kim’s arguments in support of claim one in the
Application and the Traverse include citations to, and discussions of, Supreme Court
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cases involving the ineffective assistance of counsel during plea negotiations (see Docs.
#1-1 at 4-11; #21 at 2), the Court notes that Mr. Kim’s specific argument in claim one,
and the only argument that was raised and exhausted in state court, is that his Sixth
Amendment right to counsel was denied by the failure to appoint substitute counsel.
The Court recognizes that resolution of claim one involves consideration of the
relationship between Mr. Kim and his counsel during pretrial proceedings that included
plea negotiations. However, Mr. Kim has not exhausted, and the Court does not read
the Application as raising, a separate claim that Mr. Kim’s Sixth Amendment right to the
effective assistance of counsel was violated based on counsel’s performance during
plea negotiations.
With respect to Mr. Kim’s Sixth Amendment claim premised on the denial of
substitute counsel, the Colorado Court of Appeals concluded that Mr. Kim failed to
demonstrate the existence of an actual conflict of interest and, thus, substitution of
counsel was not warranted. The state court explained as follows:
First, there is no constitutional right to a plea bargain. Weatherford
v. Bursey, 429 U.S. 545, 561 (1977). Consequently, defendant’s
perception that ADC failed to procure a favorable plea bargain does not
rise to the level of good cause to appoint substitute counsel. The plea
agreement ADC negotiated required forty-five years in prison, which was
twenty-five years less than what defendant received by taking his case to
trial and less than half the total amount of time he could have received
if convicted on all charges. Defendant has not shown that another
attorney could have negotiated either a better deal or one more
acceptable to him.
Second, failure to visit the defendant in jail does not amount to
deficient performance by counsel, particularly where counsel meets with
the defendant at the courthouse. People v. Gandiaga, 70 P.3d 523, 526
(Colo. App. 2002). While a defendant always would prefer his attorney
spend a significant amount of time devoted to his case, the law only
requires that an attorney adequately prepare for trial and does not require
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that he or she spend a certain amount of time with the defendant. ADC
met with defendant multiple times, both in court and at least three times
in jail. Further, the trial court found ADC “made numerous appearances”
on behalf of defendant in the court. Consequently, this also was not a
sufficient reason to appoint substitute counsel.
Third, we conclude ADC’s lack of knowledge either about Korean
customs or about the Korean language did not hinder his ability to
represent defendant. Defendant at all times had a Korean translator
available to him. Defendant has not shown that knowledge of Korean
customs would have impacted potential defenses available to him.
Fourth, disagreements about trial strategy do not amount to an
actual, irreconcilable conflict meriting substitute counsel. Hodges, 134
P.3d at 425; see also Garcia, 64 P.3d at 863. Disagreements about trial
strategy include differing opinions as to the strength of the defendant’s
case. Hodges, 134 P.3d at 425; see also People v. Apodaca, 998 P.2d
25, 28 (Colo. App. 1999) (counsel’s personal disbelief of defendant’s
version of the facts not sufficient to establish conflict of interest and
require trial court to appoint substitute counsel). Here, ADC expressed
skepticism, not as to his ability to represent defendant, but as to
defendant’s likelihood of success at trial. It is counsel’s responsibility
to inform a defendant of all options, and the chances of success at trial
affect those options. We conclude such a discussion is within counsel’s
scope of representation and does not amount to a sufficient reason to
appoint substitute counsel based on a perceived conflict of interest.
Accordingly, we conclude the trial court did not err in refusing to
appoint substitute counsel.
(Doc. # 1-1 at 30-32.)
The determination by the Colorado Court of Appeals that Mr. Kim failed to
demonstrate the existence of an actual conflict of interest with counsel is not based
on an unreasonable determination of the facts in light of the evidence presented.
In particular, the Court’s review of the state court record confirms that no actual
conflict of interest existed and that Mr. Kim merely disagreed with the manner in
which appointed counsel was handling his case.

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Because there was no actual conflict of interest between Mr. Kim and alternate
defense counsel, the determination by the Colorado Court of Appeals that Mr. Kim’s
Sixth Amendment rights were not violated also is not contrary to or an unreasonable
application of clearly established Supreme Court law. See Plumlee v. Masto, 512 F.3d
1204, 1210 (9th Cir. 2008) (“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.”). As noted
above, the Sixth Amendment does not guarantee “a ‘meaningful relationship’ between
an accused and his counsel.” Morris, 461 U.S. at 14.
For these reasons, the Court finds that Mr. Kim is not entitled to relief with
respect to claim one.
B.

CLAIM TWO
Mr. Kim contends in claim two that his Sixth and Fourteenth Amendment rights

were violated because he did not knowingly, voluntarily, and intelligently waive his right
to counsel. Clearly established federal law recognizes that a defendant in a criminal
proceeding has a constitutional right to waive his right to counsel and represent himself.
Faretta v. California, 422 U.S. 806 (1975). In order to be effective, a waiver of counsel
must be knowing, voluntary, and intelligent. See Iowa v. Tovar, 541 U.S. 77, 88 (2004).
Whether a waiver is knowing, voluntary, and intelligent “depends in each case upon the
particular facts and circumstances surrounding that case, including the background,
experience, and conduct of the accused.” Edwards v. Arizona, 451 U.S. 477, 482
(1981) (internal quotation marks omitted). In the context of a criminal proceeding that
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goes to trial, warnings regarding the pitfalls of proceeding without counsel must be
rigorously conveyed. See Patterson v. Illinois, 487 U.S. 285, 299 (1988).
The issue of whether a waiver of the right to counsel is knowing, voluntary, and
intelligent is a mixed question of law and fact. See Strozier v. Newsome, 926 F.2d
1100, 1104 (11th Cir. 1991). Mr. Kim bears the burden of proving that he did not
competently and intelligently waive his right to the assistance of counsel. See Tovar,
541 U.S. at 92.
Mr. Kim contends that his waiver of counsel was not valid because the only
practical alternative was representation by an attorney with whom he had a conflict.
Essentially, Mr. Kim contends that his waiver was not valid because substitute counsel
should have been appointed as he contends in claim one:
It was a “Hobson’s Choice”: either way Mr. Kim was losing an important
right. Mr. Ahmann, Mr. Kim’s appointed attorney, had threatened to tell
the jury Mr. Kim was guilty in opening statements if he refused to plead
guilty. The Supreme Court has held that defense counsel may not use
these types of tactics in order to coerce a defendant during the plea
process. Brookhart v. Janis, 384 U.S. 1, 7 (1966). Counsel was not
communicating with Mr. Kim, as any normal attorney would do, but was
instead using threats. If the plea agreement of 45 years which was first
offered was good, counsel had a duty to consult Mr. Kim about it. Yet
the State courts did not find these facts relevant or persuasive.
(Doc. # 1-1 at 15.) Mr. Kim also contends that the trial court failed to provide an
adequate advisement regarding the waiver of counsel because it was split between
two hearings held one week apart and the trial court failed to conduct a comprehensive
inquiry to determine whether the waiver was valid.
On direct appeal, the Colorado Court of Appeals concluded that Mr. Kim
voluntarily waived his right to counsel because, when asked explicitly if he wanted to

13

represent himself following the denial of his requests for appointment of substitute
counsel, Mr. Kim told the trial court that he did wish to represent himself. (See Doc.
# 1-1 at 36-37.) The Colorado Court of Appeals also determined that the waiver was
knowing and intelligent for the following reasons:
Considering all the circumstances here, particularly defendant’s
repeated requests to represent himself, lack of sufficient reason to dismiss
ADC for cause, and the trial court’s repeated warnings against proceeding
pro se, we conclude the trial court correctly determined defendant
knowingly and intelligently waived his right to counsel.
When the inquiry was put directly to him, defendant left no doubt he
wanted ADC to be removed from his case and he wanted to represent
himself. The trial court determined ADC was competent and there were
no sufficient reasons to replace him with substitute counsel. The trial
court plainly explained to defendant that he could proceed with ADC or, if
he chose to have ADC removed, he could represent himself. See People
v. Mossmann, 17 P.3d 165 (Colo. App. 2000).
When the trial court suggested ADC could act as advisory counsel
to defendant, the following colloquy took place:
[Trial Court]: Recognizing those limitations on the participation of
that advisory attorney, do you wish to have an advisory attorney in
this case?
[Defendant] (through interpreter): I know it’s very good for me to
have advisory attorney with me but I hope can get another attorney.
[Trial Court]: So if I understand, [defendant], you do not want to
have [ADC] as your advisory attorney?
[Defendant] (through interpreter): Yes, that’s true, Your Honor.
[Trial Court]: But you would prefer to have an advisory attorney.
[Defendant]: Yes.
There is some dispute whether during this discussion defendant
simply did not want ADC as his advisory counsel and preferred another
attorney act in this capacity or whether, as he now contends, he simply
was again requesting an attorney other than ADC to represent him at trial.
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Based on the context of the statement, we conclude defendant was
requesting ADC not be his advisory counsel. Defendant clearly stated
he did not want ADC as his advisory counsel, and the entire thrust of
this colloquy was advisory counsel, not counsel at a future trial. Further,
defendant had several times previously stated, explicitly, that he wanted to
go represent himself at trial. Even if he was requesting another attorney
besides ADC to represent him at trial, the trial court already had
determined there was no sufficient reason to remove ADC, had explained
its reasoning to defendant, and had given him the option of either going to
trial with ADC or proceeding pro se. Nevertheless, defendant still rejected
ADC. Thus, the only way he could have had a new attorney at trial was
if he hired his own private counsel, which the trial court had also told him
explicitly.
Although the trial court’s advisement could have been more
comprehensive, we nonetheless conclude it substantially complied with
the required Arguello factors. The trial court warned defendant repeatedly
of the dangers of self-representation; warned him he would have to
understand and apply the relevant rules of evidence, procedure, and
substantive law; advised him that he had a right to represent himself;
warned him that the court could not assist him; and warned him that
the punishment he faced was severe. Nonetheless, defendant explicitly
stated he would rather represent himself than proceed with ADC, who had
represented him for nearly two years in all pretrial matters. The trial court
also knew that defendant was enrolled in a Ph.D. program, that his
English was not strong but that a translator would be provided, that his
request to represent himself occurred mere days before trial initially was
scheduled to begin, and that trial would be continued for four months to
give defendant time to prepare.
The trial court took the necessary precautions to provide defendant
with sufficient warning as to the dangers and disadvantages of selfrepresentation. The court explained to defendant the severity of the
charges against him, that he would be expected to know all the applicable
rules of procedure, and that it could not assist him in putting on his
defense. It then gave him a week to think it over and talk it over with ADC.
Nevertheless, defendant at two separate hearings repeatedly stated his
desire to represent himself. Having found no sufficient reason to remove
ADC and appoint new substitute counsel, the trial court was justified in
having defendant choose between representing himself or proceeding with
ADC. Having rejected ADC, defendant cannot later demand new counsel
based on the same reasons the trial court previously determined to be
insufficient to establish an irreconcilable conflict with ADC.
(Doc. # 1-1 at 38-42.)
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Mr. Kim fails to present any clear and convincing evidence sufficient to overcome
the presumption of correctness that attaches to the state court’s factual findings
regarding the trial court’s advisement and Mr. Kim’s waiver of his right to counsel.
See 28 U.S.C. § 2254(e)(1). Furthermore, in light of the Court’s review of the state
court record, the Court concludes that the state court’s decision rejecting Mr. Kim’s
invalid waiver claim is not based on an unreasonable determination of the facts in light
of the evidence presented. The Colorado Court of Appeals also applied the correct
legal standards established by the Supreme Court and considered the particular facts
and circumstances applicable to Mr. Kim, including his background, English-language
skills, and repeated requests to represent himself. See Tovar, 541 U.S. at 88; Edwards,
451 U.S. at 482.
Next, the Colorado Court of Appeals reached a decision that is not unreasonable.
To the extent Mr. Kim contends the waiver was invalid because substitute counsel
should have been appointed, the Court disagrees for the reasons discussed above in
the context of claim one. To the extent Mr. Kim contends the advisement was not
comprehensive, the state court’s contrary conclusion is not unreasonable. In particular,
Mr. Kim does not dispute the factual determination, which is supported by the state
court record, that the trial court
warned [him] repeatedly of the dangers of self-representation; warned
him he would have to understand and apply the relevant rules of evidence,
procedure, and substantive law; advised him that he had a right to
represent himself; warned him that the court could not assist him; and
warned him that the punishment he faced was severe.
(Doc. # 1-1 at 40.) Finally, Mr. Kim’s contention that the trial court proceedings
concerning the advisement and waiver should not have been split between two hearings
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one week apart does not demonstrate the waiver was invalid. It is not unreasonable to
conclude that allowing Mr. Kim an additional week to consider whether he truly wished
to waive his right to counsel actually supports the conclusion that his waiver was
knowing and intelligent.
Therefore, the Court finds that Mr. Kim also is not entitled to relief with respect
to claim two.
C.

CLAIM THREE
Mr. Kim contends in claim three that he was denied due process when he was

not allowed to revoke his waiver of counsel. Mr. Kim specifically argues as follows in
support of this claim:
As trial approached it became abundantly clear to all concerned that
Mr. Kim’s unfamiliarity with the language and his incarceration would result
in him being unable to put up a competent defense. It also became clear
that Mr. Kim really never desired to represent himself – he only tried to
obtain substitute counsel. Advisory counsel had been appointed to
the case, but counsel informed the court that he had been unable to help
Mr. Kim due to the language barrier.
Further, though previous counsel (Mr. Ahmann) told the trial court
he would forward the discovery to Mr. Kim, it wasn’t until just a few months
before trial that Mr. Kim recieved [sic] it from counsel. This delay was
never explained, but it certainly prejudiced Mr. Kim who had to laboriously
sift through and translate the papers which were all in English.
Under the unique circumstances of the case, Mr. Kim should have
been permitted to revoke his waiver of counsel.
(Doc. # 1-1 at 21.)
The Colorado Court of Appeals rejected Mr. Kim’s claim that counsel should
have been reappointed for the following reasons:

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Finally, defendant suggests that because he clearly requested
representation as trial approached, he effectively revoked his waiver of
counsel and consequently the trial court was required to supply him with
an attorney. We reject this argument. One who elects to act as his or her
own attorney must accept the burdens and hazards that accompany that
decision. People v. Price, 903 P.2d 1190, 1192 (Colo. App. 1995). Unlike
in other jurisdictions, there is no statute or rule in Colorado that allows
criminal defendants a right to revoke a valid waiver of counsel. Id.; cf.
State v. Rickman, 715 P.2d 752, 755 (Ariz. 1986) (allowing a defendant to
withdraw his waiver of counsel at any time). Consequently, a trial court is
not required to grant a defendant’s request to withdraw a valid waiver of
his right to counsel, although it may exercise its discretion in evaluating
the circumstances surrounding the request. Price, 903 P.2d at 1192.
(Doc. # 1-1 at 42.)
Respondents argue that Mr. Kim is not entitled to relief with respect to claim
three because he fails to identify any clearly established federal law concerning
revocation of a waiver of the right to counsel. The Court agrees. See John-Charles v.
California, 646 F.3d 1243, 1249 (9th Cir. 2011) (finding no clearly established federal law
for purposes of claim that defendant is constitutionally entitled to reappointment of
counsel after valid waiver of counsel). Because “[t]he absence of clearly established
federal law is dispositive under § 2254(d)(1),” see House, 527 F.3d at 1016, the Court
finds Mr. Kim is not entitled to relief with respect to claim three.
In addition, the Court finds that Mr. Kim is not entitled to relief with respect to
claim three even if the Court considers the claim in the context of the general principles
set forth in Gideon and Faretta. As noted above, although an indigent inmate has a
Sixth Amendment right to have counsel appointed for him at state expense, Gideon,
372 U.S. at 339-45, a defendant in a criminal proceeding also has a constitutional right
to waive his right to counsel and to represent himself, see Faretta, 422 U.S. at 807.
As a result, “[o]nce a defendant has exercised the Sixth Amendment right to proceed
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pro se, the defendant necessarily forgoes the reciprocal Sixth Amendment right to
counsel at all critical stages of the criminal process.” John-Charles, 646 F.3d at 1248
(internal quotation marks omitted). In considering whether Mr. Kim may be entitled to
relief pursuant to § 2254(d)(1) under the general principles set forth in Gideon and
Faretta, the Court emphasizes that, “[t]he more general the rule, the more leeway courts
have in reaching outcomes in case-by-case determinations.” Harrington, 131 S. Ct. at
786.
The Court is not persuaded that Mr. Kim is entitled to relief under the general
principles of Gideon and Faretta with respect to his claim that he was denied due
process when he was not allowed to revoke his waiver of counsel. In short, the state
court’s conclusion “that there is no absolute right to reinstatement of counsel after a
Faretta waiver is within ‘the range of reasonable applications’ of Gideon and Faretta.”
John-Charles, 646 F.3d at 1249 (quoting Harrington, 131 S. Ct. at 788); see also United
States v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993) (“Once a defendant exercises
his constitutional right to defend himself and proceed pro se, he does not have the
absolute right to thereafter withdraw his request for self representation and receive
substitute counsel.”); Robinson v. Ignacio, 360 F.3d 1044, 1056 (9th Cir. 2004) (“the
Supreme Court has made it clear that once a defendant has made such a waiver, he
must bear the consequences without complaint though he conducted his own defense
to his own detriment”). Therefore, the Court finds that Mr. Kim also is not entitled to
relief with respect to claim three.

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IV. CONCLUSION
In summary, the Court finds that Mr. Kim is not entitled to relief in this action.
Accordingly,
IT IS ORDERED that the Application for a Writ of Habeas Corpus Pursuant
to 28 U.S.C. § 2254 (Doc. # 1) is DENIED and this case is DISMISSED WITH
PREJUDICE.
IT IS FURTHER ORDERED that there is no basis on which to issue a certificate
of appealability pursuant to 28 U.S.C. § 2253(c).
DATED: June

11

, 2013
BY THE COURT:

_______________________________
CHRISTINE M. ARGUELLO
United States District Judge

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