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Werber v. Sublett

United States Court of Appeals, Ninth Circuit
Aug 18, 2003
72 F. App'x 694 (9th Cir. 2003)

Opinion


72 Fed.Appx. 694 (9th Cir. 2003) Gregory David WERBER, Petitioner-Appellant, v. Samuel SUBLETT, Warden; Terry Goddard, Attorney General, Respondents-Appellees. No. 02-16807. D.C. No. CV-00-00404-EHC. United States Court of Appeals, Ninth Circuit. August 18, 2003

Submitted August 11, 2003.

This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). We deny Werber's request for oral argument.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the District of Arizona, Earl H. Carroll, District Judge, Presiding.

Before SCHROEDER, Chief Judge, HAWKINS and TASHIMA, Circuit Judges.

MEMORANDUM

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

Arizona state prisoner Gregory David Werber appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenges his conviction and 12.5-year sentence for one count of schemes and artifices to defraud. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm.

Werber contends that his Sixth Amendment right of self-representation was violated when counsel represented him at the sentencing hearing. Our review of the record, however, reveals that Werber never made an unequivocal request to proceed exclusively pro se. Thus, the state court's denial of this claim was not contrary to or an unreasonable application of federal law as clearly established by the Supreme Court. See 28 U.S.C. § 2254(d); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989) (stating that a "request to proceed without counsel [must] be unequivocal" and "[i]f [the defendant] equivocates, he is presumed to have requested the assistance of counsel"). The district court therefore properly denied Werber's petition.

Contrary to Werber's assertion, the state court did not make a finding of fact that Werber made an unequivocal request to represent himself.

The Clerk is ordered to file appellees' excerpts of record, received by the Court on April 7, 2003. Werber's December 13, 2002 motion to file a pro se supplemental brief is denied. In addition, Werber's motion to broaden the certificate of appealability is denied.

AFFIRMED.


Summaries of

Werber v. Sublett

United States Court of Appeals, Ninth Circuit
Aug 18, 2003
72 F. App'x 694 (9th Cir. 2003)
Case details for

Werber v. Sublett

Case Details

Full title:Gregory David WERBER, Petitioner-Appellant, v. Samuel SUBLETT, Warden…

Court:United States Court of Appeals, Ninth Circuit

Date published: Aug 18, 2003

Citations

72 F. App'x 694 (9th Cir. 2003)