Sandoval v. Ryan

          REPORT & RECOMMENDATION ON PETITION FOR WRIT OF HABEAS CORPUS

          James F. Metcalf United States Magistrate Judge.

         I. MATTER UNDER CONSIDERATION

         Petition - 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.

         Petitioner's 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, respectively.

         Response -On November 14, 2018, Respondents filed their Answer (Docs. 6, 7).^[1]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).

         Reply - 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.

         Consideration - 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 Civil Procedure.

         II. RELEVANT FACTUAL & PROCEDURAL BACKGROUND

         A. FACTUAL BACKGROUND

         In disposing of Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background as follows:

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 “Exh.__.”)

         B. PROCEEDINGS AT TRIAL

         Petitioner 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 trial.

         Petitioner's 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. 8/15/12.)

         The 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.)

         Subsequently, 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.)

         Petitioner 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.)

         On the 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. 12/31/12.)

         A year 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.)

         C. PROCEEDINGS ON DIRECT APPEAL

         Petitioner 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.)

         Petitioner 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).

         D. PROCEEDINGS ON POST-CONVICTION RELIEF

         In the 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.)

         Petitioner, 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.)

         Petitioner 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).

         III. APPLICATION OF LAW TO FACTS

         A. GROUND 1 - EXCLUSIONARY RULE

         In 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.

         Indeed, 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).

         In 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.

         The key 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. 1996).

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 developed.

U.S. ex rel. Bostick v. Peters, 3 F.3d 1023, 1027 (7th Cir. 1993) (citations omitted).

         Here, 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.

         Accordingly, Petitioner's Ground 1 is barred from relief under Stone, and must be denied.

         B. STANDARD OF REVIEW ON STATE HABEAS

         1. Limited Review of State Decisions

         While 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).

         2. Applicable Decisions

         In 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. 2004).

         3. No Decision on the Merits

         Not all 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 merits).

         4. Errors of Law

         Rejection 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. §2254(d)(1).

         Contrary 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).

         Unreasonable 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.

         State 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 (9^th 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 criminal conviction”).

         5. Errors of Fact and Evidentiary Hearings

         Unreasonable 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).

         New 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).

         Even 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).

         Even 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).

         Presumption 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 findings.”).

         6. De Novo Review

         If 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. 2016).

         7. Harmless Error

         Even 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 (1993).

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).

         However, “[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.

         C. GROUND 2 - COUNSEL OF CHOICE

         1. Parties Arguments

         In 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. § 2254(d).

         2. Factual Background

         In 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.)

         3. State Court Ruling

         The 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 150. 117

¶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 dilatory. Id.

¶18 …We find no abuse of discretion in denying Sandoval's continuance request.

(Exh. HH, Mem. Dec. 3/10/15 at ¶¶16-18.)

         4. Applicable Law

         Right 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).

         That 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.

         On the 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.

         Continuances 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)).

         There 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.

         However, 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”).

         With 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.

         5. Application of Law

         a. No Remediable Factual Error

         Petitioner 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.)

         Payment 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 ...