United States District Court, D. Arizona
April 28, 2014
Otis Eugene Bunn, Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
LAWRENCE O. ANDERSON, Magistrate Judge.
This matter is before the Court on Petitioner's pro se Petition for Writ of Habeas Corpus (the "Petition"), pursuant to 28 U.S.C. § 2254, in which Petitioner challenges his criminal convictions in Maricopa County, Arizona, Superior Court, Case No. CR2005-129654-001 DT. (Doc. 1) Respondents have filed an Answer to Petition for Writ of Habeas Corpus (the "Answer"). (Doc. 10) Petitioner has not filed a reply. As explained below, the undersigned Magistrate Judge recommends the Petition be denied.
A. Indictment, Trial and Sentencing
On September 23, 2005, the State of Arizona indicted Petitioner on one count of Fraudulent Schemes and Artifices, a Class Two felony (Count One); one count of Theft, a Class Three felony (Count Two); one count of Possession of Drug Paraphernalia, a Class Six felony (Count Three); and two counts of Forgery, a Class Four felony (Counts Four and Five). (Doc. 10, Exh. B) The charges arose "from the investigation of a series of checks drawn on the victim's Charles Schwab account, without the victim's authorization, and deposited in [Petitioner's] bank account." (Doc. 10, Exh. KKK at 2) The trial court subsequently granted a motion by Petitioner to sever the drug paraphernalia charge from the remaining counts. ( Id. )
A jury trial was held in October 2009 at which Petitioner represented himself. ( Id. ) The jury found Petitioner guilty of Fraudulent Schemes and Artifices and Theft, but not guilty of the two counts of Forgery. ( Id. at 2-3) Petitioner, who had prior felony convictions, was sentenced on May 6, 2010, to concurrent prison terms of 15.75 years on the Fraudulent Schemes conviction and 11.75 years on the Theft conviction. (Doc. 10, Exh. GGG at 15-16)
B. Direct Review
Petitioner filed an untimely pro se Notice of Appeal on June 1, 2010. (Doc. 10, Exh. OOO) Through counsel, Petitioner subsequently obtained permission from the trial court to file a delayed notice of appeal, which was filed on November 3, 2010. (Doc. 10, Exhs. TTT, UUU) In the Opening Brief, Petitioner raised one issue. Petitioner claimed the trial court erred when it failed to determine that Petitioner's decision to waive his right to counsel and represent himself was made knowingly, intelligently and voluntarily. (Doc. 10, Exh. JJJ) On August 21, 2012, the Arizona Court of Appeals issued a Memorandum Decision in which it affirmed Petitioner's convictions and sentences. (Doc. 10, Exh. KKK) Petitioner then filed a pro se Petition for Review in the Arizona Supreme Court in which he raised the same issue that was presented in the Arizona Court of Appeals. (Doc. 10, Exh. LLL) The Arizona Supreme Court summarily denied review on February 13, 2013. (Doc. 10, Exh. MMM)
C. Federal Habeas Petition
On July 12, 2013, Petitioner filed his Petition for Writ of Habeas Corpus in this District Court. (Doc. 1) Petitioner raises one ground for relief in the Petition. Petitioner alleges the trial court's determination that he was able to represent himself was constitutionally defective. Petitioner argues he did not knowingly, intelligently or voluntarily waive his right to trial counsel, and the waiver was not in writing. Petitioner claims the trial court's actions violated his Sixth Amendment right to counsel. On October 25, 2013, Respondents filed their Answer and supporting exhibits. (Doc. 10) As noted above, Petitioner did not file a reply.
Respondents argue in the Answer that the Petition should be denied and dismissed with prejudice because the Arizona Court of Appeals' resolution of Petitioner's Sixth Amendment claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court precedent.
A. Standard of Review
A federal district court's review of a habeas petitioner's claim is constrained by the standard of review set forth in 28 U.S.C. § 2254(d), as amended in 1996 by the Antiterrorism and Effective Death Penalty Act ("AEDPA"). The ADEPA "modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas retrials' and to ensure that state-court convictions are given effect to the extent possible under the law." Bell v. Cone, 535 U.S. 685, 693 (2002). The standard in § 2254(d) is intended to be "difficult to meet." Harrington v. Richter, 562 U.S. ___, 131 S.Ct. 770, 786 (2011). The statute "stops short of imposing a complete bar on federal court relitigation of claims already rejected in state court proceedings, " and "preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [Supreme Court] precedents." Id. (citations omitted). "Section 2254(d) reflects the view that habeas corpus is a guard against extreme malfunction in the state criminal justice systems, ' not a substitute for ordinary error correction through appeal." Id. (quoting Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979)).
"[W]ith respect to any claim that was adjudicated on the merits in State court proceedings, " a federal court "shall not" grant habeas relief unless the State court's decision "was contrary to or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court, " or the decision "was based on an unreasonable determination of the facts" in light of the record before the State court. 28 U.S.C. § 2254(d)(1), (2); Green v. Fisher, ___ U.S. ___, 132 S.Ct. 38, 43 (2011). As discussed above, this is a "highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt." Woodford v. Visciotti, 537 U.S. 19, 24 (2002) ( per curiam ) (citation and internal quotation omitted). The petitioner bears the burden of proving the standards for habeas relief have been met. Id. at 25. When applying the standards set forth in § 2254(d), a federal court should review the "last reasoned decision" by the state court. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
To determine whether a state court ruling was "contrary to" or involved an "unreasonable application" of federal law, federal courts look exclusively to the holdings of the Supreme Court which existed at the time of the state court's decision. Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1399 (2011). The Ninth Circuit has acknowledged that it cannot reverse a state court decision merely because that decision conflicts with Ninth Circuit precedent on a federal constitutional issue. Brewer v. Hall, 378 F.3d 952, 957 (9th Cir. 2004); Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). Even if the State court neither explains its ruling nor cites United States Supreme Court authority, the reviewing federal court must nevertheless examine Supreme Court precedent to determine whether the State court reasonably applied federal law. Richter, 131 S.Ct. at 784 (citing Early v. Packer, 537 U.S. 3, 8 (2003)). Compliance with the habeas statute "does not even require awareness of [Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early, 537 U.S. at 8; Richter, 131 S.Ct. at 784. "Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state to deny relief." Richter, 131 S.Ct. at 784.
Under § 2254(d), a State court's decision is "contrary to" clearly established federal law if it applies a rule of law "that contradicts the governing law set forth in [Supreme Court] cases or if it confronts a set of facts that are materially indistinguishable from a decision of [the Supreme Court] and nevertheless arrives at a result different from [Supreme Court] precedent." Mitchell v. Esparza, 540 U.S. 12, 15-16 (2003) (citations omitted); Williams v. Taylor, 529 U.S. 362, 405-406 (2000). A state court's decision involves an "unreasonable application of" federal law if the court identifies the correct legal rule, but unreasonably applies that rule to the facts of a particular case. Brown v. Payton, 544 U.S. 133, 141 (2005); Williams, 529 U.S. at 407-408. This standard requires more than merely an incorrect application of federal law. Yarborough v. Alvarado, 541 U.S. 652, 665-66 (2004) (stating that "[r]elief is available under § 2254(d)(1) only if the state court's decision is objectively unreasonable."). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as fairminded jurists could disagree on the correctness of the state court's decision.'" Richter, 131 S.Ct. at 786 (citing Yarborough, 541 U.S. at 664). "[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 determination.'" Id. The undersigned Magistrate Judge will consider Petitioner's claim in view of the foregoing standards.
Petitioner alleges in his only ground for relief that he was denied the right to counsel in violation of the Sixth Amendment when the trial court erroneously determined Petitioner waived his right to counsel and chose to represent himself. Petitioner claims he did not knowingly, intelligently and voluntarily waive his right to counsel and never signed a written waiver. He contends a request to proceed without counsel must be unequivocal and the facts of this case do not show he made an unequivocal request. Petitioner further contends he was forced to choose between incompetent counsel and no counsel at all. Finally, he cites Rule 6.1(c), Arizona Rule of Criminal Procedure, which provides that a waiver of the right to counsel must be in writing. Petitioner has attached to his Petition a copy of the Opening Brief submitted by counsel in his direct appeal, which raised the same issue Petitioner presents here. (Doc. 1 at 13-44)
The controlling Supreme Court precedent on a criminal defendant's right to waive counsel and represent himself at trial is Faretta v. California, 422 U.S. 806 (1975). In Faretta, the United States Supreme Court held that a defendant in a state criminal trial has a right under the Sixth and Fourteenth Amendments to represent himself if he clearly and unequivocally makes such a request. Faretta, 422 U.S. at 835-36. To represent himself, an accused must knowingly and intelligently relinquish the benefits associated with the right to counsel. Id. at 835. A defendant "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.'" Id. at 835 (quoting Adams v. U.S. ex rel. McCann, 317 U.S. 269, 279 (1942)); see also Iowa v. Tovar, 541 U.S. 77, 88 (2004).
The "last reasoned decision" by the State court, to which the habeas standards are applied, is the Memorandum Decision issued by the Arizona Court of Appeals on direct review. See Robinson, 360 F.3d at 1055. In that decision, the Court of Appeals found "that the trial court did not abuse its discretion in implicitly finding that [Petitioner] knowingly, intelligently and voluntarily waived his right to counsel and granting [Petitioner's] motion to represent himself at trial." (Doc. 10, Exh. KKK at 12) The Court concluded, "The record in this case fully supports a finding that [Petitioner] knowingly, intelligently and voluntarily chose to represent himself at trial." ( Id. at 7-8)
Citing Faretta, the Arizona Court of Appeals explained it is well-established that an individual has a fundamental constitutional right to represent himself in court in a criminal case. (Doc. 10, Exh. KKK at 5-6) The Court of Appeals also addressed the right of an accused to conduct his own defense under Arizona law. ( Id. ) For example, the Court referenced Ariz.R.Crim.P. 6.1(c), which calls for a defendant's waiver of his right to counsel to be in writing. ( Id. at 7) On federal habeas review, however, the undersigned Magistrate Judge considers only whether Petitioner's federal constitutional rights were violated. See Lewis v. Jeffers, 497 U.S. 764, 780 (1990) ("[F]ederal habeas corpus does not lie for errors of state law.")
The Court of Appeals explained that the most complete exchange between Petitioner and the trial court regarding the waiver of counsel occurred at a hearing on February 26, 2007. (Doc. 10, Exh. KKK at 3) During that exchange, defense counsel advised the trial court that Petitioner had "filed a motion to go pro per." ( Id. ) The trial court then asked Petitioner if it was still his desire to go pro per, to which Petitioner responded, "Yes, sir." ( Id. ) When the trial court asked Petitioner if he had considered this, Petitioner responded, "Yes." ( Id. ) The trial court also asked Petitioner if he had talked about this with defense counsel, to which Petitioner responded, "We did talk somewhat." ( Id. ) The trial court then asked Petitioner whether he wanted to continue with his current defense counsel in the role of advisory counsel. ( Id. ) Petitioner said he thought it would be better to appoint new advisory counsel. ( Id. ) The trial court then granted Petitioner's motion for pro per status and appointed new advisory counsel. ( Id. )
The Court of Appeals cited several other portions of the record to support its conclusion that Petitioner knowingly, intelligently and voluntarily waived his right to counsel. Based on a settlement conference held on January 11, 2008, the Court of Appeals determined it was clear Petitioner understood well before trial the nature of the charges and the potential punishment he faced upon conviction. (Doc. 10, Exh. KKK at 8) At the settlement conference, the trial court reviewed the charges and potential sentences. ( Id. ) Even though defense counsel appeared with Petitioner, Petitioner addressed the court himself, said he was representing himself, and said he was not interested in a plea bargain but only a fair trial. ( Id. ) The Court of Appeals found Petitioner also demonstrated his understanding of the trial process by complaining to the court that he had filed several motions for discovery but had not received anything from the State. ( Id. )
The Court of Appeals also referenced Petitioner's August 12, 2008 motion to dismiss his counsel as both counsel of record and advisory counsel and proceed alone in all of his pending cases. (Doc. 10, Exh. KKK at 8) The motion explained that Petitioner was seeking "self-representation, " cited Ariz.R.Crim.P. 6.1(c) and Faretta, and noted that the Sixth Amendment grants a criminal defendant "personally the right to make his defense." ( Id. at 8-9)
The Court of Appeals referenced another motion filed by Petitioner in June 2009 entitled, "Motion to Change Counsel." ( Id. at 9) In the motion, Petitioner asked that his then counsel be withdrawn and that no other attorney be substituted. ( Id. ) The motion again cited the Arizona rule for waiver of the right to counsel, Ariz.R.Crim.P. 6.1(c), and stated, "The [Petitioner] seek[s] self-representation." ( Id. ) The Court of Appeals found these motions to be the functional equivalent of a voluntary, written waiver for purposes of Rule 6.1, Ariz.R.Crim.P. ( Id. )
In addition, the Court of Appeals cited other on-the-record discussions of Petitioner's decision to waive counsel. At a status conference on February 15, 2007, the trial court cautioned Petitioner about self-representation, stating it was the trial court's job "to advise you of the dangers and disadvantages of representing yourself...." (Doc. 10, Exh. KKK at 10) This occurred before the trial court issued its February 26, 2007 ruling granting Petitioner's motion to proceed pro per. ( Id. )
At a later status conference on June 29, 2009, Petitioner again confirmed he did not want a lawyer and felt qualified to proceed on his own. ( Id. ) Before jury selection for Petitioner's trial on October 6, 2009, the trial court reviewed with Petitioner the role of his advisory counsel and explained to Petitioner that "[y]ou're the one in charge because this is the decision you've made." ( Id. ) The trial court then again asked Petitioner if it was still his desire to go forward as his own lawyer, to which Petitioner responded, "Oh, yes, sir." ( Id. )
The Court of Appeals went on to cite other factors in the record that "support the finding that [Petitioner] was fully aware of a trial attorney's role and of the disadvantages of self-representation and that he knowingly, intelligently and voluntarily waived his right to counsel." ( Id. ) Those factors included Petitioner's extensive criminal record, and his testimony at his trial in which he admitted three prior felony convictions and acknowledged being represented by counsel for two of them. ( Id. at 10-11) The Court of Appeals found those factors supported an inference that Petitioner was "aware of the role of trial counsel and, consequently, of the risks and dangers of self-representation." ( Id. at 11)
Another factor was a statement Petitioner made to the jury panel after two prospective jurors expressed reluctance to serve on the jury because Petitioner was representing himself. ( Id. ) Petitioner explained to the panel that he had a right as a citizen of the United States to represent himself, and that under the Constitution, a person does not have to have a lawyer represent himself. ( Id. ) The Court of Appeals found this statement "clearly supports the inference that Defendant's decision to represent himself was knowing and voluntary." ( Id. at 12) As noted above, based on all these factors, the Court of Appeals found no error in the trial court's implicit finding that Petitioner knowingly, intelligently and voluntarily waived his right to counsel and the trial court's decision to grant Petitioner's motion to represent himself at trial.
Despite bearing the burden of proving the standards for habeas relief have been met, Petitioner here does not even address the Arizona Court of Appeals decision and, consequently, makes no argument that this decision was contrary to, or an unreasonable application of, United States Supreme Court precedent. He also fails to argue the decision was based on an unreasonable determination of the facts. Having failed to file a reply, Petitioner addresses none of Respondents' arguments pertaining to the standard of review in federal habeas cases. By attaching to the Petition the Opening Brief from his direct appeal, Petitioner is essentially asking the federal court to perform a de novo review of his claim before the Arizona Court of Appeals. As set forth in 28 U.S.C. § 2254(d), however, federal habeas review is much more stringent than that.
After review of the State court record, this Magistrate Judge finds no basis to conclude that the Arizona Court of Appeals decision was objectively unreasonable. The decision was not contrary to, or an unreasonable application of, Faretta. Additionally, the decision was not based on an unreasonable determination of the facts in light of the record before the Court of Appeals. The Court of Appeals cited numerous portions of the record that demonstrate Petitioner's decision to waive counsel was made knowingly, intelligently and voluntarily. The record clearly shows the high standard for habeas relief has not been met here.
For the foregoing reasons, Petitioner's sole claim for relief in Ground One fails to satisfy the standards for habeas relief under 28 U.S.C. §§ 2254(d). Accordingly, the Court will recommend that the Petition be denied.
IT IS RECOMMENDED that the Petition for Writ of Habeas Corpus, pursuant to 28 U.S.C. § 2254, doc. 1, be DENIED;
IT IS FURTHER RECOMMENDED that a Certificate of Appealability and leave to proceed in forma pauperis on appeal be DENIED because dismissal of the Petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, must not be filed until entry of the District Court's judgment. The parties have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (b), and 72. Thereafter, the parties have 14 days within which to file a response to the objections. Failure to timely file objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the district court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to timely file objections to any factual determinations of the undersigned Magistrate Judge will be considered a waiver of a party's right to appellate review of the findings of fact in an order of judgement entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.