Category Archives: Sixth Amendment: Self Representation

Castellanos v. Small, 766 F.3d 1137 (C.A.9 2014)

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Castellanos is a case of overwhelming guilt, and the jury convicted him of second degree murder.  No jury would have found him “not guilty.” The facts are simple. In the presence of witnesses, the defendant (a gang member who had just been released from jail) shot a young boy in the head because he would not join a gang.  The trial was straightforward and nothing suggests the jury believed the defense of an “accidental shooting.” The trial record supports the sufficiency of evidence. Of course defense counsel filed a Batson motion on grounds the prosecutor excused an Hispanic juror – yet he had accepted 8 Hispanic jurors. The trial judge denied the motion.

On appeal in state court, Castellanos asserted no significant evidential or instructional error but argued his Batson motion; Peo. v. Castellanos, 2007 WL 2660214 (Non.Pub.). The California Court of Appeal disposed of the motion in a few paragraphs citing a California Supreme Court case deferring to the experience of trial judges and their familiarity with voir dire.  The California Supreme Court denied review.

On federal habeas in district court the judge denied the petition, and Castellanos appealed. The 9th Circuit panel, none of whom had trial experience, reviewed the same record as the state court trial judge, the California Court of Appeal, the California Supreme Court (denied review) and the district court judge.  The panel spent endless pages reviewing the cold voir dire record and concluded the prosecutor had excused a potential Hispanic juror on racial grounds despite his explanation of the reasons for the challenge to the judge who supervised the trial.

That a federal court would grant habeas corpus on collateral review without any deference to the state court, as required by the Supreme Court, and reverse the judgment on Batson grounds is inconceivable and a manifest injustice. This decision parallels Rice v. Collins, another 9th Circuit Batson reversal by the Supreme Court who correctly said: “The 9th Circuit simply substituted its judgment.”

The 9th Circuit is so fixated on race that it impairs their judgment. (Not only in criminal cases but immigration as well.) Castellanos was tried in 2005, nine years ago.  What are the chances of retrial by the prosecution after this length of time?  Ordering reversal of a murder case because one juror was allegedly wrongfully excused, despite the trial court, state court Justices on the Court of Appeal, and Supreme Court to the contrary, is irresponsible. The Supreme Court insists federal appellate judges respect and defer to state court judgments on habeas corpus.

Rehearing or cert.?  If cert., the Supreme Court should reverse the 9th Circuit panel decision as an “abuse of appellate discretion,” a term used by the Justices in a 9th Circuit decision reversed during the last term. And this habeas corpus petition -a collateral review entitled to double deference – overruling facts found by the trial judge and normally accepted on appeal, invites Congressional review to tighten AEDPA or eliminate federal review of state court decisions.

Note: The 9th Circuit panel used the so called “comparative analysis” system of matching questions and answers of jurors.  Worthless. Nothing in the “comparative analysis” includes the voice, demeanor, conduct, or body language of a juror.  Every  trial lawyer knows that. The 9th Circuit panel doesn’t.

 

Marshall v. Rodgers, 133 S.Ct. 1446 (2013)

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The 9th Circuit reversed again in a per curiam opinion.  The Supreme Court is determined to compel the 9th Circuit to adhere to (AEDPA) 28 U.S.C. 2254 (d) when reviewing habeas corpus petitions from state court decisions.

The petitioner in state court waived his right to counsel and represented himself.  By the time of his preliminary hearing he changed his mind and retained counsel.  Later, he fired his lawyer and represented himself.  He changed his mind again, and the court appointed counsel.  Prior to trial the petitioner fired his lawyer and he represented himself.  Convicted, he sought counsel to file a motion for new trial. He gave no reason and declined to explain.  Motion denied. He appealed, contending the trial court should have appointed counsel.

The California Court of Appeal correctly confirmed the decision of the trial court as did the U.S. District Court on federal habeas.  On appeal to the 9th Circuit on the same grounds who, according to the panel, scoured the records of other Circuits, held the trial judge erred in not appointing counsel (678 F.3d. 1149 (2012) and reversed.

The Supreme Court conceded the tension between Faretta and Gideon, but the Justices had never ruled on the specific fact situation as in this case. In other words, no ” clearly established Supreme Court law” had been decided under AEDPA.  The Supreme Court said the appointment of counsel largely depends on the discretion of the trial court by considering the ability of the defendant to defend himself; the number of changes in counsel; the delay in the proceedings.  In reversing,  the Supreme Court reminded the 9th Circuit that on collateral review the federal court must accord deference to state courts, and the state court in this case properly applied the law.

Ninth Circuit judges refuse to accord deference to state court decisions despite repeated orders by the Supreme Court to comply with AEDPA. On federal habeas, the federal appellate court must find the state court decision “unreasonable,” not “incorrect.” The Supreme Court correctly reversed on grounds the state appellate court had affirmed on appeal by writing a “reasonalble”  decision. 

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Rodgers v. Marshall, 678 F.3d 1149 (9th Cir. 2012)

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Ignoring Supreme Court decisions requiring deference to state courts under AEDPA, the 9th Circuit   overrules another California Court of Appeals case.

After filing an appeal from his conviction and numerous petitions for habeas corpus in state court, all denied, defendant filed a petition for habeas corpus in federal court.   Denied. He appealed to the 9th Circuit.

The trial record establishes the defendant wavered back and forth in determining whether to represent himself. The trial court judge repeatedly warned him against self representation. Ultimately the defendant did represent himself, and the jury found him guilty.  Without asserting any grounds, the defendant asked the court to appoint counsel to file a motion for new trial.  The trial court denied his request. In a petition to the 9th Circuit, the defendant asked for reversal on grounds the trial court should have granted his motion.

The 9th Circuit panel, reversing all California Court of Appeals decisions, petitions for habeas corpus, and the decision of the district court, first concluded a motion for new trial is a “critical stage” in criminal proceedings and a defendant is entitled to counsel.  But the panel could find no Supreme Court case holding that a defendant who elects self representation, and represents himself at trial, is entitled to representation at a post trial motion.  California courts correctly held that once a defendant decides to representation himself, he waives his right to counsel and revocation of the waiver is not permitted. 

Not in the 9th Circuit. Citing no Supreme Court case to this effect, the panel turns to 9th Circuit precedent  to assist in determining whether a defendant can revoke his waiver of counsel.  Completely ignoring Carey v Musladin, 549 U.S. 70 (2006), a Supreme Court case holding the absence of Supreme Court precedent on an issue disallows invoking circuit court precedent under the standards of AEDPA. Carey, another 9th Circuit reversal, prevents  the circuit court from citing its own precedent for “guidance, ” as the panel states.

Aside from a wrong decision on the legal issue, this is another case of a defendant “gaming the system,” citing no ground for the court to appoint counsel after deciding to self represent. Incidentally the defendant represented himself at sentencing without asking for counsel.