Opinion
No. C 01-3080 SI
February 26, 2003
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
This matter is now before the Court for consideration of the merits of Anthony Craig Moore's pro se petition for writ of habeas corpus concerning his 1998 conviction in the Santa Clara County Superior Court. For the reasons set out below, the petition will be DENIED.
BACKGROUND
1. The Crimes
On April 8, 1998 at about 7:00 p.m., San Jose police officers Moses Barreras and David Seminatore were on patrol in an unmarked car in a part of San Jose known for crack cocaine dealing. Officer Barreras saw Boris Rendazzo and Traci Jones, both of whom he had seen participate in crack purchases on previous occasions. Anthony Craig Moore and Stephanie Sumpter approached Rendazzo and Jones. After a brief conversation, Moore and Sumpter walked away and Rendazzo handed some money to Jones.
While Officer Seminatore observed Moore and Sumpter enter the parking lot of a grocery store, Officer Barreras continued to observe Rendazzo and Jones. Officer Seminatore saw Moore enter his car and hand Sumpter two small white objects that Officer Seminatore believed were crack cocaine. Barreras then saw Sumpter return to Jones and Rendazzo. Sumpter handed Jones the small white objects, and Jones handed Sumpter some money. Sumpter returned to Moore and handed him the money she had received from Jones.
Officer Barreras then arrested Rendazzo. While handcuffed, Rendazzo dropped two small plastic bags and crushed them under his foot. These appeared to be the bags that Sumpter had given to Jones and Jones gave to Rendazzo. Officer Barreras retrieved some of the powdery substance from the bags, which later tested positive for cocaine base. When Officer Seminatore was informed that Rendazzo had been arrested, he approached Moore and Sumpter and arrested them.
2. Procedural History of the Case
A jury in the Santa Clara County Superior Court found Moore guilty of selling cocaine base (Cal. Health Safety Code § 11352(a)). In addition, the jury found that Moore had suffered a prior felony conviction and that he had previously served two prison terms. On May 27, 1999, Moore was sentenced to a nine-year prison term. The California Court of Appeal affirmed Moore's conviction in an unpublished opinion, and the California Supreme Court denied his petition for review.
Moore filed his federal petition for writ of habeas corpus in the Eastern District of California, and it was later transferred to this Court. On August 16, 2001, this Court issued an Order to Show Cause, and respondent filed an answer. This case is now before the Court for consideration of the merits of Moore's claims.
3. Moore's Representation and Self-Representation
From April 24, 1998 (the date of the preliminary hearing) until October 8, 1998 (the first day of trial), the public defender's office represented Moore. During this time, the Superior Court granted Moore three continuances. After the continuances and on the latest first day of trial, Moore personally asked the court to grant a continuance. When the court denied Moore's motion, Moore informed the court that he wished to exercise his right to self-representation under Faretta v. California, 422 U.S. 806 (1975). The court agreed to consider Moore's Faretta motion but warned Moore that the trial would begin as scheduled. Moore said that he understood, but he repeatedly asked the court to give him more time to prepare his case. At no time during this exchange did Moore say that he had a conflict with his attorney. The court ordered a recess to allow Moore to complete his Faretta form.
After the recess, the court reviewed the form and questioned Moore to ensure that he understood the form's contents. The court explained to Moore that if he represented himself, he would have to comply with legal rules and procedures. The court explained the maximum sentence Moore faced if convicted and pointed out that the plea bargain offered a shorter sentence. The court explained to Moore that exercising hisFaretta right forfeited his right to argue ineffective assistance of counsel on appeal. Finally, the court cautioned Moore that self-represented defendants rarely succeed. After all these explanations, Moore chose to represent himself, and the court believed that this choice was free and voluntary. Moore again acknowledged that he understood the trial would begin immediately, but he nevertheless requested a continuance. After a lengthy discourse, the court granted Moore'sFaretta motion and denied his request for a continuance because it was untimely and because the court, the prosecution, the assembled witnesses, and the jury were ready to proceed.
After discussing motions in limine, the court adjourned from the afternoon of Thursday, October 8, 1998 until 9 a.m. on Tuesday, October 13, 1998, in order to give Moore time to prepare his own motions in limine. On October 13, Moore informed the court that he had not prepared any motions in limine, but he did have a motion for a continuance. The court denied this motion because it was untimely, had not been properly filed before the law and motion judge, the prosecution never received notice, and the prosecution and the witnesses were ready to proceed.
After the jury was selected, but outside its presence, the court reprimanded Moore for his conduct before the jury, i.e. Moore had stated that he wanted a lawyer. Moore mentioned that he had a conflict with the public defender who had represented him the week before. The court informed Moore that he was responsible for representing himself and that the court would not grant a continuance to allow him to hire an attorney. The trial then proceeded.
The next day Moore absconded for the remainder of trial. The trial continued in his absence, and he was convicted. He was arrested about a month later.
LEGAL STANDARD
1. Jurisdiction and VenueThis Court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C.
§ 2254. This action is in the proper venue because the challenged conviction occurred in Santa Clara County, California, which is located in this judicial district. 28 U.S.C. § 2241(d).
2. Exhaustion
Prisoners in state custody who collaterally challenge the fact or the length of their confinement in a federal habeas proceeding must first exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim presented in federal court. 28 U.S.C. § 2254(b), (c). The parties agree that Moore has exhausted his state court remedies for the claims presented in his petition.
3. 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 violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). This Court may grant a petition with respect to a claim that was adjudicated on the merits in state court if the adjudication of the claim "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." 28 U.S.C. § 2254(d)(1); seeWilliams v. Taylor, 529 U.S. 362, 402-413 (2000). "Clearly established federal law, as determined by the Supreme Court of the United States" refers to the "holdings, as opposed to the dicta, of the Court's decisions as of the time of the relevant state-court decision."Williams, 529 U.S. 362, 412. A state court decision may not be overturned on habeas review simply because of a conflict with circuit-based law. Van Tran v. Lindsey, 212 F.3d 1143, 1154 (9th Cir.), cert. denied 531 U.S. 944 (2000). However, circuit decisions may still be relevant as persuasive authority to determine whether a particular state court holding is an "unreasonable application" of Supreme Court precedent or to assess what law is "clearly established." Id. Habeas relief is warranted only if the constitutional error at issue is structural error or had a "`substantial and injurious effect' on the verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).
PETITIONER'S LEGAL CLAIMS
1. Denial of Right to Counsel
Moore claims that he was denied his Sixth Amendment right to counsel. Moore claims that when he said he wanted to hire a lawyer on October 13, 1998, the court should have adjourned and reappointed his former counsel or allowed him to hire an attorney. Moore claims that the court's refusal to accommodate his request violated his Sixth Amendment right to counsel.
The California Court of Appeal, in affirming Moore's conviction, observed that Moore did not make an unequivocal request for reappointment of his former counsel or for permission to hire an attorney. Cal. Ct. App. Opinion, p. 8. The Court of Appeal held that a trial judge is not obligated to restore counsel after a defendant has exercised his or her right to self-representation. Id at p. 7. In entertaining such a request, a trial judge should consider the totality of the circumstances, including defendant's history regarding substitution of counsel, the reasons for the request, the stage of the trial proceedings, and whether granting the motion might cause disruption or delay. Id. at p. 8. The Court of Appeal found that Moore "was playing games with the court to postpone trial, if not build reversible error into the record," and for that reason the trial court had not abused its discretion in denying Moore's request. Id at ¶ 8-10.
Criminal defendants have the right to an attorney under the Sixth Amendment. Gideon v. Wainwright, 372 U.S. 335, 343-44 (1963). The Sixth Amendment also gives a criminal defendant the right to waive his right to an attorney and represent himself. Faretta, 422 U.S. at 835 (1975). The defendant's assertion of his right to self-representation must be timely, unequivocal, and knowing and intelligent. Id The right of self-representation is not "a choice cast in stone," but a trial court may prohibit a self-represented defendant from obtaining counsel in the middle of trial when doing so would delay or disrupt the proceedings by adversely affecting witnesses, counsel, and the court. Menefield v. Borg, 881 F.2d 696, 700 (9th Cir. 1989).
In Menefield, habeas relief was granted when the state court denied the petitioner assistance of counsel to prepare his motion for a new trial. 881 F.2d 701. After unsuccessfully representing himself, the petitioner informed the trial court that he did not understand the intricacies of the state statute governing new trials and requested an attorney to help him prepare a motion for a new trial. Id at 697.Menefield is distinguishable in that the defendant's trial had already ended. A post-trial request for an attorney is less likely to disrupt the court's docket or witness scheduling, whereas the same request on the eve or in the middle of trial is significantly more likely to cause such disruptions. Id. at 701.
The California court reasonably determined that Moore's request after trial had begun was made for the purpose of delaying or disrupting the proceedings. With his appointed counsel present, Moore personally requested a continuance on October 8. When the trial court denied this request, Moore requested to represent himself. Moore said that he understood that trial would commence that day even if he represented himself. Nevertheless, Moore persisted in requesting a continuance, and the court adjourned until October 13. Moore — who was out on bail — had four more days to prepare his defense. When trial resumed on October 13, Moore again moved for a continuance. The court denied this motion because the prosecutor was ready to proceed, prospective jurors were present, and the witnesses had been assembled. Further, the case had been pending for six months, and Moore had already been granted three continuances. The California court's concern that Moore was trying to delay or disrupt trial was not misplaced. The right of self-representation "is not a license to abuse the dignity of the courtroom," or a "license not to comply with relevant rules of procedural and substantive law." Faretta, 422 U.S. at 835 n. 46. Accordingly, the court's denial of Moore's untimely request for an attorney was not a decision that was "contrary to" or an "unreasonable application of" Gideon or Faretta.
The California Court of Appeal also did a harmless error analysis of Moore's right to counsel claim. Cal. Ct. App. Opinion, pp. 11-12. Doing such an analysis was contrary to clearly established federal law because violations of a defendant's right to counsel or self-representation are structural errors. Johnson v. United States, 520 U.S. 461, 468-69 (citing McKaskle v. Wiggins, 465 U.S. 168 (1984) and Gideon). However, the state appellate court's erroneous use of a harmless error analysis does not affect the outcome of the federal habeas analysis because Moore was not denied his right to counsel. Without an error, the question of whether such error was a trial error or structural is moot.
2. Inadequate Time to Prepare for Trial
Moore also claims that he had inadequate time to prepare for trial because the California court denied his motion for a continuance. Moore's requested continuances were denied on October 8 and October 13. Moore does not specify which denial is the basis of his petition, but the court effectively granted his motion on October 8 when it adjourned until October 13. On October 13, Moore again requested a continuance, which the court denied.
The California Court of Appeal denied Moore's claim as "meritless," noting the broad discretion a trial court has over motions for a continuance. Cal. Ct. App. Opinion, p. 11. The appellate court noted that under California law, a trial court may grant an untimelyFaretta motion on the condition that the defendant be ready to proceed without delay. Id. at ¶. 11-12. The appellate court found no abuse of discretion because Moore not only accepted this condition, but also had until October 13 to prepare for trial.Id. at p. 12.
A trial court generally has broad discretion over a motion for a continuance. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). The denial of a continuance constitutes an abuse of discretion when the court arbitrarily insists "upon expeditiousness in the face of a justifiable request for a delay" and violates the defendant's right to counsel.Morris v. Slappy, 461 U.S. 1, 11-12 (1983); Ungar, 376 U.S. at 589. A trial court may deny a continuance — even if it results in a defendant being unrepresented at trial — if the defendant's conduct is "dilatory and hinders the efficient administration of justice." United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987) (quoting United States v. Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979)). A denial of a continuance warrants habeas relief when it constitutes an abuse of discretion, and the resulting error is "so arbitrary and fundamentally unfair that it violates constitutional principles of due process." Bennett v. Scroggy, 793 F.2d 772, 774-75 (6th Cir. 1986) (citation omitted). In addition, the petitioner must show actual prejudice to his defense as a result of the refusal to grant a continuance. Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997), cert. denied 524 U.S. 917 (1998).
The trial court's decision to deny Moore's request for a continuance did not violate his right to due process. The trial court had already granted three continuances before Moore requested another one on October 13. Moore did not give any reason for requesting a continuance, much less a justifiable reason as required by Ungar. 376 U.S. at 589. In addition, on October 8, the previous Thursday, Moore had told the court that he was ready to begin trial. In denying Moore's October 13 request for continuance, the court noted that the prosecutor was ready to proceed, that witnesses had been subpoenaed and were available, that prospective jurors were present, and that a continuance would disrupt the proceedings. The California courts reasonably concluded that Moore's request for a continuance was a stalling tactic. If the trial court had granted Moore's requested continuance, this would have been disruptive to the court, jurors, counsel, and witnesses — all of whom were ready for the trial to begin as scheduled. This was simply not a case where the court insisted on expeditiousness in the face of a justifiable request for a delay. Rather, the court refused to be manipulated.
Moore has not shown with any particularity how his defense would have been aided by a continuance and has not shown how the denial of a continuance harmed him. Of course, the fact that he absconded obscures any analysis of how his defense was prejudiced by the denial of the continuance but that cannot work to the absconder's benefit.
CONCLUSION
For the foregoing reasons, this Court DENIES the petition for habeas corpus. The clerk shall close the file.
IT IS SO ORDERED.