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King v. USA

United States District Court, D. Arizona

June 5, 2018

Richard Alan King, Petitioner,
v.
USA, Respondent.

          REPORT AND RECOMMENDATION

          DAVID K. DUNCAN UNITED STATES MAGISTRATE JUDGE

         TO THE HONORABLE SUSAN R. BOLTON, SENIOR U. S. DISTRICT JUDGE

         Richard Alan King’s Amended Motion to Vacate, Set Aside or Correct Sentence pursuant to 28 U.S.C. § 2255 (“2255 Motion”) is now fully briefed. (Doc. 24) King claims he received ineffective assistance of counsel and that he did not knowingly and voluntarily represent himself. (Doc. 24) Respondent argues that he cannot raise this claim because he chose to represent himself at various points in his criminal proceedings. (Doc. 32) As explained below, the Court recommends that King’s Motion be denied and dismissed with prejudice.

         Procedural Background

         After King’s indictment, he requested self-representation. (2:08-cr-45 (“CR”) Doc. 135 at 2) The Court warned him that it was “a bad idea” and, after time to consult with counsel, King rescinded his request. (CR Doc. 135 at 3-11)

         Subsequently, King again requested self-representation. (CR Doc. 199, 367 at 4-12) After a lengthy discussion about the limited obligations of advisory counsel, the Court granted King’s request and appointed his counsel as his advisory counsel. (CR Doc. 367 at 12:3-9) For approximately two months, King represented himself and filed numerous papers, including a Motion to Dismiss Advisory Counsel. (CR Doc. 221, 223, 226, 230, 238) Thereafter, King filed a motion titled “Ex Parte Request to Amend Advisory Counsel’s Appointment to that of Trial Counsel.” (CR Doc. 259) The Court granted that request and appointed King counsel. (CR Doc. 260)

         Approximately four months later, King again informed the Court that he wanted to represent himself. (CR Doc. 332) At a hearing on his motion, the Court granted his request. (CR Docs. 352, 819 at 7-14) For the next month, King represented himself and filed and responded to pretrial motions. (CR Docs. 354, 362, 365, 380, 381, 387, 388, 389, 412, 417, 418, 419, 420, 421). King represented himself for the first three days of trial. (CR Docs. 422, 423, 425) During the fourth day of trial, the Court granted King’s request that his advisory counsel become his counsel of record. (CR Doc. 426)

         Approximately two weeks after the jury found him guilty, and again two months later King again requested to represent himself. (CR Docs. 500, 562) At a hearing intended for sentencing, the Court granted King’s request to represent himself. (CR Doc. 584) King filed various papers over the next three months. (CR Docs. 576, 581, 582, 583, 587, 592, 593, 594, 595, 607, 608, 609, 610, 611, 613, 614, 624, 625, 627, 631, 632, 633, 634, 635, 644, 649, 652, 653, 654, 655, 656, 658)

         After sentencing, King filed more papers, including a “Motion for Appointment of Advisory Counsel for direct appeal” and “Motion for New Trial Pursuant to F.R.C.P. 33(a) (b) (1).” (CR Docs. 627, 669; CR Docs. 664, 668, 670, 675, 676, 678, 679, 684, 685, 686, 707, 713) The Court granted King’s request and appointed him appellate advisory counsel until the Ninth Circuit informed King that it does not appoint advisory counsel. (CR Docs. 691, 779) King proceeded pro se and the Ninth Circuit first stayed his appeal and remanded to the District Court “for the limited purpose of enabling the district court to address” the various motions King had filed. (CR Doc. 807) After those motions were denied, the Circuit addressed the merits of his appeal. (CR Doc. 847-3) King raised several claims and the Circuit rejected all of them and affirmed his conviction. (CR Doc. 847-3) King’s request for rehearing and rehearing en banc were denied and the mandate issued on July 30, 2014. (CR Doc. 847-2) The U.S. Supreme Court denied King’s petition for writ of certiorari on January 12, 2015, and denied his petition for rehearing on March 9, 2015. (Ninth Circuit Court of Appeals Case 10-10005, Doc. 186, 187)

         In January 2016, King timely initiated post-conviction proceedings in this Court. (Doc. 1) The Court granted King’s request to amend his 2255 Motion to address “scribeners errors.” (Doc. 7, 23) After a stay and an extensive motions practice, this matter is now fully briefed. (Docs. 10, 23, 52)

         Analysis

         King raises two claims for relief. First, he argues that he received ineffective assistance of counsel in various ways and second, he argues that he should have been represented when he filed a motion for a new trial. (Doc. 24) Respondents argue that King cannot raise either claim. (Doc. 32) The Court agrees.

         When a criminal defendant requests self-representation, the District Court must determine that the request is knowing and intelligent. Faretta v. California, 422 U.S. 806, 819-20, 835 (1975). After that determination, the Court can choose to appoint advisory counsel but a pro se defendant has no right to such counsel. U.S. v. Moreland, 622 F.3d 1147, 1155 (9th Cir. 2010); U.S. v. Olano, 62 F.3d 1180, 1193 (9th Cir. 1995). “[A] defendant who elects to represent himself cannot thereafter complain that the quality of his own defense amounted to a denial of “effective assistance of counsel.’” Faretta, 422 U.S. at 834, n.46. This means that the Court cannot consider post-conviction claims of ineffective assistance of counsel or advisory counsel. Cook v. Ryan, 688 F.3d 598, 609 (9th Cir. 2012); see also Wainwright v. Torna, 455 U.S. 586, 587–88 (1982). Accordingly, under longstanding and binding precedent, King’s claims of ineffective assistance of counsel cannot stand. (Doc. 24 at 5-50)

         Likewise, the Court cannot review King’s claim that he should have received Faretta warnings before he moved for a new trial. (Doc. 24 at 51-52) King could have raised this claim in his direct appeal, when he was proceeding pro se, ...


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