United States District Court, D. Arizona
Nora Y. Sandoval, Petitioner
Charles L. Ryan, et al., Respondents.
REPORT & RECOMMENDATION ON PETITION FOR
WRIT OF HABEAS CORPUS
F. Metcalf United States Magistrate Judge.
MATTER UNDER CONSIDERATION
- Petitioner, a prisoner in the Arizona State Prison in
Goodyear, Arizona, commenced the current case by filing her
Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254 on October 4, 2018 (Doc. 1). Petitioner
challenges her Arizona state conviction in Mohave County
Superior Court, case number CR 2011-01237, of two counts of
possession of dangerous drugs for sale, two counts of
possession of dangerous drugs, and three counts of possession
of drug paraphernalia, for which the court sentenced her to
presumptive prison terms totaling 31.5 years.
Petition asserts the following four grounds for relief:
In Ground One, Petitioner alleges that the trial court abused
its discretion by denying her motion to suppress concerning a
search for which she contends that probable cause did not
exist. In Ground Two, she alleges the court abused its
discretion by failing to grant her a continuance to retain
counsel of her choice. In Ground Three, Petitioner alleges
that there was insufficient evidence to support a verdict of
possession of a dangerous drug, i.e., Clonazepam. In Ground
Four, she alleges that she was denied the effective
assistance of trial counsel.
(Order 10/15/18, Doc. 3 at 2.) Her claim of ineffective
assistance in Ground 4 is based on allegations that trial
counsel's failed to: (a) move to sever counts; (b) object
to prejudicial testimony and to request an Arizona Rule of
Evidence 404(b) instruction; (c) move to waive
Petitioner's appearance at trial and for a related jury
instruction; and (d) file a special action to challenge the
denial of new counsel. (Petition, Doc. 1 at 9.) These
subclaims are addressed herein as Grounds 4A, 4B, 4C, and 4D,
-On November 14, 2018, Respondents filed their
Answer (Docs. 6, 7).Respondents argue that the exclusionary
rule claim in Ground 1 (motion to suppress) is not amenable
to habeas relief under Stone v. Powell, 428 U.S.
465, 494-95 (1976), and that Petitioner fails to show that
the state courts' resolution of the claims in Grounds 2
through 4 are subject to relief under the deferential
standards of 28 U.S.C. § 2254(d).
- Petitioner filed a Reply on February 28, 2019 (Doc. 12),
arguing the merits of her claims in Grounds 2 (counsel of
choice) and 4 (ineffective assistance). With regard to the
latter, she asserts that prejudice from the different
failings of counsel must be considered cumulatively.
- The Petitioner's Petition is now ripe for
consideration. Accordingly, the undersigned makes the
following proposed findings of fact, report, and
recommendation pursuant to Rule 8(b), Rules Governing Section
2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28
U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of
RELEVANT FACTUAL & PROCEDURAL BACKGROUND
disposing of Petitioner's direct appeal, the Arizona
Court of Appeals summarized the factual background as
Based on information obtained from a confidential informant,
police officers obtained a search warrant authorizing a
search of Sandoval and her apartment for evidence relating to
possession of methamphetamine and drug paraphernalia. The
morning the search warrant was to be executed, officers saw
Sandoval leave her apartment in a vehicle. They stopped the
vehicle and took Sandoval to a booking facility where she was
searched. Officers found a plastic bag containing a white
crystal substance later determined to be 28.7 grams of
methamphetamine hidden in Sandoval's underwear. Upon
searching Sandoval's apartment, officers discovered a
plastic bag containing 11.25 grams of methamphetamine in the
pocket of a woman's jacket, two pills in a plastic
baggie, hundreds of unused plastic baggies, a digital scale,
and more than a thousand dollars in cash.
Three days later, having just been released from custody,
Sandoval made arrangements by telephone to sell
methamphetamine to a buyer. Unbeknownst to Sandoval, the
buyer was cooperating with law enforcement. When Sandoval
appeared at the agreed-upon meeting location, officers found
her in possession of 20.6 grams of methamphetamine.
(Exh. HH, Mem. Dec. 3/10/15 at ¶¶ 2-3.) (Exhibits
to the Answer, Doc. 6, are referenced herein as
PROCEEDINGS AT TRIAL
was indicted in a seven count Indictment (Exh. B) on three
counts of possession of dangerous drugs for sale
(methamphetamine); one count of possession of dangerous drugs
(clonazepam); and three counts of possession of drug
paraphernalia, a class 6 felony. The first five counts
related to events leading up Petitioner's arrest on
October 11, 2018, and counts 6 and 7 related to the events on
October 28, 2018, after Petitioner's release from the
original arrest. The State alleged that Sandoval had four
prior felony convictions for sentence enhancement purposes.
(Exh. E.) Petitioner was again released from custody pending
retained counsel filed a Motion to Suppress
(Exh. F) the evidence seized in Petitioner's home, the
evidence seized as a result of the traffic stop, statement
during the traffic stop and subsequent investigation, and all
statement related to the post-release sales transaction. The
motion was based on the lack of probable cause for the
original search warrant, an unreasonable search of Petitioner
and the cooperating buyer. The Court conducted a hearing on
the motion at which the investigating officer testified.
(Exh. J, R.T. 8/15/12.) The motion was denied. (Exh. K, M.E.
matter was set for trial on September 25, 2012. On September
10, 2012, counsel moved for a continuance of
trial based on time needed to finish preparing for
trial, which was denied. Petitioner, who had been confused
about scheduling, did not appear, and counsel waived her
appearance. (Exh. L, R.T. 9/10/12; Exh. M, M.E. 9/10/12.)
on September 24, 2012, Petitioner and counsel appeared for a
hearing, based on Petitioner having called the judge's
chambers indicating an intent to retain new counsel.
Petitioner complained that counsel was more concerned with
money than defending her, had improperly given a copy of an
interview transcript to another client, and that she was
generally dissatisfied with counsel's services. Counsel
expressed concern that his trial preparation was being
hindered by Petitioner's preoccupation with her
dissatisfaction. The State opposed a continuance. The court
reasoned that the request seemed to be a veiled attempt to
delay a trial with a potential for an extensive sentence,
that his experience with Petitioner in prior prosecutions
indicated her needs for advice on trial procedure and
constitutional rights were limited, and based on the vague
dissatisfaction with counsel found no reason to continue
trial. (Exh. N, R.T. 9/24/12; Exh. O, M.E. 9/24/12.)
proceeded to trial on September 25, 2012, and was eventually
convicted as charged. (Exh. X, Verdicts;
Exhs. P through U, RT and M.E. re trial.)
last day of trial, before jury instructions and closing
arguments, Petitioner absconded, and a bench warrant was
issued and a bond forfeiture hearing set. (Exh. U, M.E.
9/27/12.) Bond was eventually forfeited. (Exh. Y, M.E.
later, Petitioner had been apprehended, and again appeared
before the Court, and the matter was set for
sentencing. (Exh. Y, M.E. 12/18/13.) A
Presentence Report (Exh. AA) was prepared. On March 28, 2014,
“[t] he trial court found that Sandoval had two prior
historical felony convictions and sentenced her as a
repetitive offender to consecutive and concurrent presumptive
prison terms totaling 31.5 years.” (Exh. HH, Mem. Dec.
3/10/15; Exh. G, Sentence 3/28/14.)
PROCEEDINGS ON DIRECT APPEAL
filed a direct appeal, challenging the denial of the motion
to suppress, the denial of a continuance to retain new
counsel, insufficient evidence on the Clonazepam charge, and
error in failing to redact the recording of Petitioner's
interrogation. (Exh. EE, Opening Brief.) The Arizona Court of
Appeals rejected her claims, and affirmed her convictions and
sentences. (Exh. HH, Mem. Dec. 3/10/15.)
did not timely seek reconsideration or review by the Arizona
Supreme Court, and on May 29, 2015, the Arizona Court of
Appeals issued its Mandate (Exh. II).
PROCEEDINGS ON POST-CONVICTION RELIEF
meantime, on April 14, 2016, Petitioner commenced a
post-conviction relief proceeding (PCR) by filing her Notice
of Post-Conviction Relief with the trial court (Exh. KK).
Counsel filed a Petition for Post-Conviction Relief (Exh. LL)
raising four claims of ineffective assistance of counsel
based on issues regarding severance, other act evidence,
failure to waive Petitioner's appearance at trial, and
failure to special action the denial of the motion for new
counsel. The prosecution failed to respond, and on September
6, 2016, the PCR court rejected the claims on the merits.
(Exh. MM, M.E. 9/6/16.)
through counsel, sought review (Exh. NN) by the Arizona Court
of Appeals, reasserting the same four claims of ineffective
assistance. That court granted review, but denied relief,
summarily finding no abuse of discretion by the trial court.
(Exh. OO, Mem. Dec. 10/18/17.)
did not timely seek reconsideration or review by the Arizona
Supreme Court, and on December 4, 2017, the Arizona Court of
Appeals issued its Mandate (Exh. PP).
APPLICATION OF LAW TO FACTS
GROUND 1 - EXCLUSIONARY RULE
Ground 1, Petitioner alleges that the trial court abused its
discretion by denying her motion to suppress evidence
resulting from the search of her, her property and her
residence, based on the lack of probable cause. (Petition,
Doc. 1 at 6.) Respondents argue that the claim in Ground 1 is
founded on the exclusionary rule and is not amenable to
habeas relief under Stone v. Powell, 428 U.S. 465,
494-95 (1976). (Answer, Doc. 6 at 13, et seq.)
Petitioner does not address Ground 1 in her Reply.
Petitioner's claim is one for enforcement of the
“exclusionary rule.” Absent the
“exclusionary rule, ” evidence obtained in
violation of the Fourth Amendment, i.e. because
there was not probably cause to conduct a search would be
admissible at trial.
The Fourth Amendment protects the “right of the people
to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures.” The
Amendment says nothing about suppressing evidence obtained in
violation of this command. That rule-the exclusionary rule-is
a “prudential” doctrine, created by this Court to
“compel respect for the constitutional guaranty.”
Exclusion is “not a personal constitutional right,
” nor is it designed to “redress the
injury” occasioned by an unconstitutional search. The
rule's sole purpose, we have repeatedly held, is to deter
future Fourth Amendment violations.
Davis v. United States, 564 U.S. 229, 236-37 (2011).
Stone v. Powell, 428 U.S. 465 (1976), the Supreme
Court recognized that habeas proceedings are so far removed
from the offending conduct that any deterrent effect is
outweighed by the societal cost of ignoring reliable,
trustworthy evidence and the judicial burden of litigating
collateral issues. Thus, the Court held that “where the
State has provided an opportunity for full and fair
litigation of a Fourth Amendment claim, a state prisoner may
not be granted habeas corpus relief on the ground that the
evidence obtained in an unconstitutional search or seizure
was introduced at his trial.” Id. at 494.
to the limitation on the exclusionary rule in Stone
is the provision of an opportunity for full and fair
consideration of the exclusionary rule claim. "The
relevant inquiry is whether petitioner had the opportunity to
litigate his claim, not whether he did in fact do so or even
whether the claim was correctly decided."
Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir.
In deciding whether the state has afforded the petitioner an
opportunity for full and fair litigation, a federal habeas
court must determine first whether the state procedural
mechanism, in the abstract, presents the opportunity to raise
a Fourth Amendment claim. Second, there must be a
determination whether the presentation of the claim in
question was in fact frustrated by a failure of that
mechanism. The presentation of a claim is frustrated by a
failure in the state procedural mechanism if there has been
no “meaningful inquiry by the state courts” into
the Fourth Amendment claim, either because the state courts
did not carefully and thoroughly address the factual basis of
the petitioner's claim or because the state courts did
not apply the proper constitutional case law to the facts as
U.S. ex rel. Bostick v. Peters, 3 F.3d 1023, 1027
(7th Cir. 1993) (citations omitted).
Petitioner proffers nothing to show that she lacked a full
and fair opportunity to litigate her exclusionary rule claim.
As noted by Respondents (Answer, Doc. 6 at 16-17), Petitioner
was able to litigate her exclusionary rule by: raising it in
her motion to suppress (Exh. F); supporting it in an
evidentiary hearing (Exh. J); obtaining a ruling from the
trial court (Exh. K); raising it on direct appeal (Exh. EE at
15-25); obtaining a ruling from the Arizona Court of Appeals
(Exh. HH at ¶¶ 6-12); and by the opportunity to
raise it in her foregone motion for reconsideration or
petition for review to the Arizona Supreme Court (Exh. II).
Petitioner suggests no basis, and there appears no basis, to
conclude that the review afforded was not
“meaningful” as described in Bostick, 3
F.3d at 1027.
Petitioner's Ground 1 is barred from relief under
Stone, and must be denied.
STANDARD OF REVIEW ON STATE HABEAS
Limited Review of State Decisions
the purpose of a federal habeas proceeding is to search for
violations of federal law, in the context of a prisoner in
custody pursuant to the judgment a State court not every
error justifies relief. Thus, most errors which might justify
relief on direct appeal, do not justify relief on habeas
review if they were harmless. Moreover, as part of the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (“AEDPA”),
Congress adopted the additional limitations on habeas review
of state court decisions set out in 28 U.S.C. § 2254(d)
and (e), which “reflects the view that habeas corpus is
a ‘guard against extreme malfunctions in the state
criminal justice systems,' not a substitute for ordinary
error correction through appeal.” Harrington v.
Richter, 562 U.S. 86, 102-03 (2011).
evaluating state court decisions, the federal habeas court
looks through summary opinions to the last reasoned decision.
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir.
No Decision on the Merits
of the statutory limitations on habeas review of state
decisions always apply. In particular, the limitations of 28
U.S.C. § 2254(d) only apply where a claim has been
“adjudicated on the merits in State court.” Thus,
where a petitioner has raised a federal claim to the state
courts, but they have not addressed it on its merits, then
the federal habeas court must address the claim de
novo, and the restrictive standards of review in §
2254(d) do not apply. Johnson v. Williams, 133 S.Ct.
1088, 1091-92 (2013). See Id. (adopting a rebuttable
presumption that a federal claim rejected by a state court
without being expressly addressed was adjudicated on the
Errors of Law
of a state court decision on the merits based on legal error
is limited. “[A] federal habeas court may not issue the
writ simply because that court concludes in its independent
judgment that the state-court decision applied [the law]
incorrectly.” Woodford v. Visciotti, 537 U.S.
19, 24- 25 (2002) (per curiam). Rather, to justify habeas
relief, a state court's decision must be “contrary
to, or an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United
States” before relief may be granted. 28 U.S.C.
To - The Supreme Court has instructed that a
state court decision is “contrary to” clearly
established federal law “if the state court applies a
rule that contradicts the governing law set forth in [Supreme
Court] cases or if the state court confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [its] precedent.” Lockyer v. Andrade, 538
U.S. 63, 73 (2003) (internal quotation marks omitted).
Application - To show an unreasonable
application, “a state prisoner must show that the state
court's ruling on the claim being presented in federal
court was so lacking in justification that there was an error
well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.”
Harrington, 562 U.S. at 103.
Law - A state court determination of state law
is not subject to review in a federal habeas court. Bains
v. Cambra, 204 F.3d 964, 971 (9th Cir. 2000)
("federal court is bound by the state court's
interpretations of state law"). A federal court may not
second-guess the state court's construction of its own
state law unless “it appears that its interpretation is
an obvious subterfuge to evade consideration of a federal
issue.” Peltier v. Wright, 15 F.3d 860, 862
(9th Cir. 1994) (citing Mullaney v. Wilbur, 421 U.S.
684, 691 (1975)). That does not, however, necessarily
preclude the habeas court from considering (in the context of
addressing a federal claim) whether the determination that
the facts met the state law was erroneous. See e.g.
Goldyn v. Hayes, 444 F.3d 1062 (9th Cir.
2006) (although Nevada court was final arbiter of elements of
crime, it could not “define an element out of
existence, or to ignore the element entirely when upholding a
Errors of Fact and Evidentiary Hearings
Determination - Federal courts are further
authorized to grant habeas relief in cases where the
state-court's merits decision “was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding." 28
U.S.C. § 2254(d)(2). "Or, to put it conversely, a
federal court may not second-guess a state court's
fact-finding process unless, after review of the state-court
record, it determines that the state court was not merely
wrong, but actually unreasonable." Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004).
“Moreover, implicit findings of fact are entitled to
deference under § 2254(d) to the same extent as explicit
findings of fact.” Blankenship v. Hall, 542
F.3d 1253, 1272 (11th Cir. 2008). See also Watkins v.
Rubenstein, 802 F.3d 637, 649 (4th Cir. 2015).
Evidence - Further, a state prisoner is not
free to attempt to retry his claims in the federal courts by
presenting new evidence. “[W]hen we are reviewing
state-court decisions under AEDPA…petitioners may
introduce new evidence in federal court only for claims that
we review de novo.” Murray v. Schriro, 745
F.3d 984, 999 (9th Cir. 2014).
when a claim is reviewed de novo, the petitioner may
not obtain an evidentiary hearing if he has “failed to
develop” the record in the state courts, unless he
meets certain stringent showings related to justification for
the delay in developing the record, 28 U.S.C. §
2254(e)(2)(A), and that the new evidence will show a lack of
evidence to convict, 28 U.S.C. § 2254(e)(2)(B).
where an evidentiary hearing is permissible, the petitioner
“must meet one of the Townsend [v.
Sain, 372 U.S. 293 (1963)] factors and make colorable
allegations that, if proved at an evidentiary hearing, would
entitle him to habeas relief." Insyxiengmay v.
Morgan, 403 F.3d 657, 670 (9th Cir. 2004).
of Correctness - Even where the habeas court is
reviewing a claim de novo, there is a
well-established presumption of correctness of state court
findings of fact. This presumption has been codified at 28
U.S.C. § 2254(e)(1), which states that "a
determination of a factual issue made by a State court shall
be presumed to be correct" and the petitioner has the
burden of proof to rebut the presumption by "clear and
convincing evidence." This presumption of correctness
applies not only to the explicit factual fndings by the state
court, but to the implicit factual findings as well. See
Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir.1990)
(implicit factual findings are entitled to a presumption of
correctness in appropriate circumstances); see also
Taylor v. Horn, 504 F.3d 416, 433 (3d Cir.2007)
(“Implicit factual findings are presumed correct under
§ 2254(e)(1) to the same extent as express factual
De Novo Review
there was no merits decision, or if the standards of §
2254(d) are met, then the habeas court reviews a claim de
novo, applying the law applicable in this circuit.
See Mann v. Ryan, 828 F.3d 1143, 1155 (9th Cir.
under de novo review, a petitioner must, in most
cases, still show that the claimed error was not harmless
under Brecht v. Abrahamson, 507 U.S. 619, 637
For reasons of finality, comity, and federalism, habeas
petitioners are not entitled to habeas relief based on trial
error unless they can establish that it resulted in actual
prejudice. Under this test, relief is proper only if the
federal court has grave doubt about whether a trial error of
federal law had substantial and injurious effect or influence
in determining the jury's verdict. There must be more
than a reasonable possibility that the error was harmful. The
Brecht standard reflects the view that a State is
not to be put to the arduous task of retrying a defendant
based on mere speculation that the defendant was prejudiced
by trial error; the court must find that the defendant was
actually prejudiced by the error.
Davis v. Ayala, 135 S.Ct. 2187, 2197-98 (2015)
(citations, quotations and alterations omitted).
“[t]he Supreme Court has recognized that ‘some
constitutional errors require reversal without regard to the
evidence in the particular case [because they] necessarily
render a trial fundamentally unfair.' This principle
applies on habeas review as well as on direct review.”
Powell v. Galaza, 328 F.3d 558, 566 (9th Cir. 2003)
(citations omitted). This exception has been applied to a
very narrow class of claims such as: complete denial of
counsel, biased trial judge, racial discrimination in
selection of a grand jury, denial of self-representation at
trial, denial of public trial, defective reasonable doubt
instruction, Neder v. United States, 527 U.S. 1, 8
(1999), exclusion of jurors based on opposition to death
penalty, Gray v. Mississippi, 481 U.S. 648, 668
(1987), and a jury instruction that directed a verdict for
the state, Powell, 328 F.3d at 566.
GROUND 2 - COUNSEL OF
Ground 2, Petitioner alleges the court abused its discretion
by failing to grant her a continuance to retain counsel of
her choice, despite trial counsel's concession that
Petitioner was unhappy with counsel and had problems
communicating with counsel, and thus would not likely be able
to adequately assist him at trial. (Petition, Doc. 1 at 7.)
Respondents argue that Petitioner fails to show that the
state court's resolution of Ground 2 can be subject to
relief under the deferential standards of 28 U.S.C. §
disposing of this claim on direct appeal, the Arizona Court
of Appeals found the following facts:
¶14 The day before trial began, Sandoval requested a
continuance to allow her to retain private counsel. Sandoval
stated that her appointed counsel was not representing her
well and that he was not communicating with or helping her.
When asked what more she wanted her attorney to do, Sandoval
stated, "I don't know, like fight a little bit more.
I mean I feel that I'm going to lose, if I keep him. I
feel that I might get a lot of time; and I would like an
attorney that's going to fight for me more, you
know." The State opposed the motion, stating it had
multiple witnesses subpoenaed and ready to appear, and the
prosecutor had cleared her schedule for trial.
¶15 The trial court noted that Sandoval had presented
nothing specific as to why appointed counsel could not
continue representing her. In addressing what it believed to
be the true reason for the continuance request, the court
stated it appeared Sandoval "thought that the day of
reckoning would be farther off in the future, and that
she's just having a hard time accepting the fact that her
trial is starting tomorrow, and if she's found guilty she
may be facing some serious consequences."
* * * ¶18 The trial court here had already granted
Sandoval three prior trial continuances. Sandoval did not
state when she would be able to hire new counsel or how long
it would take for new counsel to prepare for trial. In
contrast, not only was the State prepared for trial, but
Sandoval's longtime appointed counsel was also ready to
try the case as scheduled. And based on its questioning of
Sandoval, the trial court could have reasonably concluded
that her continuance request was not made for legitimate
reasons, but for purposes of delay.
(Exh. HH, Mem. Dec. 3/10/15 at ¶¶ 14-15.)
State Court Ruling
Arizona Court of Appeals rejected this claim, reasoning:
¶16 A criminal defendant has the right to counsel of her
choosing under the Sixth Amendment to the United States
Constitution and Article 2, Section 24, of the Arizona
Constitution. United States v. Gonzalez-Lopez, 548
U.S. 140, 144 (2006); Robinson v. Hotham, 211 Ariz.
165, 169, ¶ 16, 118 P.3d 1129, 1133 (App. 2005). The
right to counsel of choice, though, is "not absolute,
but is subject to the requirements of sound judicial
administration." Hein, 138 Ariz. at 369, 674
P.2d at 1367; see also Wheat v. United States, 486
U.S. 153, 159 (1988) (holding right is circumscribed and a
defendant has no guarantee she will have top choice of
attorney). A trial court has "wide latitude in balancing
the right to counsel of choice against the needs of fairness,
and against the demands of its calendar."
Gonzalez-Lopez, 548 U.S. at 152. Notwithstanding
this broad discretion, an "unreasoning and arbitrary
insistence upon expeditiousness in the face of a justifiable
request for delay violates the right to the assistance of
counsel." Morris v. Slappy, 461 U.S. 1, 11-12
(1983). The wrongful denial of the right to counsel of choice
is structural error. Gonzalez-Lopez, 548 U.S. at
¶17 "Whether an accused's constitutional rights
are violated by the denial of a request for a continuance
depends on the circumstances present in the particular
case." Hein, 138 Ariz. at 369, 674 P.2d at
1367. We consider:
whether other continuances were granted; whether the
defendant had other competent counsel prepared to try the
case; the convenience or inconvenience to the litigants,
counsel, witnesses, and the court; the length of the
requested delay; the complexity of the case; and whether the
requested delay was for legitimate reasons or was merely
¶18 …We find no abuse of discretion in denying
Sandoval's continuance request.
(Exh. HH, Mem. Dec. 3/10/15 at ¶¶16-18.)
to Counsel of Choosing - The Supreme Court has
long held that where the right to counsel exists, “a
defendant should be afforded a fair opportunity to secure
counsel of his own choice.” Powell v. State of
Alabama, 287 U.S. 45, 53 (1932). “[T]he right to
select and be represented by one's preferred attorney is
comprehended by the Sixth Amendment.” Wheat v.
United States, 486 U.S. 153, 159 (1988).
right is not boundless, but is commensurate with its purpose.
“[W]hile the right to select and be represented by
one's preferred attorney is comprehended by the Sixth
Amendment, the essential aim of the Amendment is to guarantee
an effective advocate for each criminal defendant rather than
to ensure that a defendant will inexorably be represented by
the lawyer whom he prefers.” Wheat, 486 U.S.
at 159. The purpose of the right is not to protect the
defendant's relationship with a particular lawyer, but to
ensure a fair trial. Id. Thus, for example, it is
not necessary that a defendant have a
“meaningful” relationship with counsel,
Morris v. Slappy, 461 U.S. 1, 13 (1983), nor are
courts precluded from determining “which attorneys may
appear before it, or to make scheduling and other decisions
that effectively exclude a defendant's first choice of
counsel.” Gonzalez-Lopez, 548 U.S. at 152.
other hand, the denial of this right “is not subject to
a harmless error analysis.” Gonzalez-Lopez,
548 U.S. at 152. “We have little trouble concluding
that erroneous deprivation of the right to counsel of choice,
with consequences that are necessarily unquantifiable and
indeterminate, unquestionably qualifies as structural
error.” Gonzalez-Lopez, 548 U.S. at 150. Thus,
it does not require a showing “that substitute counsel
was ineffective within the meaning of Strickland v.
Washington, 466 U.S. 668, 691-696[ ] (1984)-i.e., that
substitute counsel's performance was deficient and the
defendant was prejudiced by it.” Id. at 144.
“Deprivation of the right is ‘complete' when
the defendant is erroneously prevented from being represented
by the lawyer he wants, regardless of the quality of the
representation he received.” Id. at 148.
to Obtain Counsel - This right of counsel of
one's choosing routinely bumps up against efforts by
trial courts to manage trial calendars. The Supreme Court has
addressed the competing concerns:
Trial judges necessarily require a great deal of latitude in
scheduling trials. Not the least of their problems is that of
assembling the witnesses, lawyers, and jurors at the same
place at the same time, and this burden counsels against
continuances except for compelling reasons. Consequently,
broad discretion must be granted trial courts on matters of
continuances; only an unreasoning and arbitrary
“insistence upon expeditiousness in the face of a
justifiable request for delay” violates the right to
the assistance of counsel.
Morris, 461 U.S. at 11-12 (quoting Ungar v.
Sarafite, 376 U.S. 575, 589 (1964)).
are no mechanical tests for deciding when a denial of a
continuance is so arbitrary as to amount to a constitutional
violation. “The answer must be found in the
circumstances present in every case, particularly in the
reasons presented to the trial judge at the time the request
is denied.” Ungar, 376 U.S. at 589.
courts confronting a defendant's motion for a continuance
of trial in order to retain new counsel typically consider
factors such as: the timeliness of the request, see
Morris, 461 U.S. at 13; whether the request is in good
faith (as opposed to, for example “a transparent ploy
for delay, ” id.); the burdens of a
continuance on the prosecution, courts, witnesses, and
victims, id. at 14. See United States v.
Burton, 584 F.2d 485, 490-91 (D.C. Cir. 1978) (relying
on Ungar, and listing “the length of the
requested delay; whether other continuances have been
requested and granted; the balanced convenience or
inconvenience to the litigants, witnesses, counsel, and the
court; whether the requested delay is for legitimate reasons,
or whether it is dilatory, purposeful, or contrived; whether
the defendant contributed to the circumstance which gives
rise to the request for a continuance; whether the defendant
has other competent counsel prepared to try the case,
including the consideration of whether the other counsel was
retained as lead or associate counsel; whether denying the
continuance will result in identifiable prejudice to
defendant's case, and if so, whether this prejudice is of
a material or substantial nature; the complexity of the case;
and other relevant factors which may appear in the context of
any particular case”).
regard to timeliness, the courts have often found no
violation of the right to counsel of one's choosing where
the requests for delay to substitute were made shortly before
trial. See Wheat, 486 U.S. at 157 (two days before);
Miller v. Blacketter, 525 F.3d 890, 898 (9th Cir.
2008) (same); Morris, 461 U.S. at 13 (on third day
of trial). “Of course, the late timing of a motion to
substitute counsel or to postpone trial does not always
preclude relief.” Miller, 525 F.3d at 898.
Rather the reasons for the request should be examined in
light of the justification for the delay. Id.
Application of Law
No Remediable Factual Error
points to no unreasonable determination of facts by the
Arizona Court of Appeals. For example, Petitioner argues that
the relevant considerations included: petitioner's
mistrust of and dissatisfaction with counsel, that
communication had become difficult, the length of the
expected delay and impacts on jurors and witnesses, the
complexity of the case, and that counsel expected payment for
responding to Petitioner's questions. (Reply, Doc. 12 at
4.) The state court identified all but the last. (Exh. HH,
Mem. Dec. 3/10/15 at ¶ 16.)
Demands - With regard to the latter, Petitioner
asserted this fact to the trial court:
THE COURT:….You've indicated that you think Mr.
Rideout is concerned with money more than defending you, and
that you feel extorted by your attorney that you ...