Corey Jerry Pritchett v. STEVE FRANKE, Superintendent, Two Rivers Correctional Institution

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
COREY JERRY PRITCHETT,
Petitioner - Appellant,
v.
STEVE FRANKE, Superintendent, Two
Rivers Correctional Institution,
Respondent - Appellee.
No. 14-35654
D.C. No. 2:12-cv-01849-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted October 16, 2015**
Portland, Oregon
Before: TASHIMA and BEA, Circuit Judges and BURNS,*** District Judge.
FILED
OCT 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Larry A. Burns, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.

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Petitioner-Appellant Corey Pritchett appeals from the district court's denial of
his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. § 2253 and we affirm.
Pritchett was charged with thirty-four counts of real estate fraud and was
facing trial in Oregon state court. He disagreed with his appointed counsel over trial
strategy and claimed their relationship had broken down. On two occasions well
before trial, he alternatively requested either new counsel or leave to proceed pro se.
The trial court denied these requests. Then on the morning of trial, he renewed his
request for new counsel. When that was denied, he asked to proceed pro se.
The trial court cautioned Pritchett that regardless of whether he remained
represented by counsel or proceeded pro se, the trial would not be postponed. The court
conducted the inquiry required by Faretta v. California, 422 U.S. 806, 835 (1975), and
granted him leave to proceed pro se. His appointed attorney remained as standby counsel
and the two were given time to consult before trial. The state dismissed two charges
against Pritchett, but he was convicted of the remaining thirty-two.
Pritchett filed a direct appeal in the Oregon Court of Appeals, which affirmed
without an opinion. He then sought review in the Oregon Supreme Court, which denied
his request, also without an opinion. These decisions are presumed to be on the merits,
see Harrington v. Richter, 562 U.S. 86, 99 (2011), and Pritchett does not argue
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otherwise. But because there was no written opinion on appeal, we must independently
review the record to determine whether the state court decision was objectively
unreasonable. See Murray v. Schriro, 745 F.3d 984, 996–97 (9th Cir. 2014). The review
is not de novo. Id. Instead, we must consider what arguments or theories supported or
could have supported the state court's decision, and whether fairminded jurists could
agree those arguments or theories are consistent with clearly established law as
determined by the U.S. Supreme Court. Id. at 996; Harrington, 562 U.S. at 102 (citing
28 U.S.C. § 2254(d)).
The issue in this case is whether the state trial court's refusing to allow a
continuance on the morning of trial violated Pritchett's clearly established constitutional
rights.
Because Pritchett invoked his right of self-representation on the morning of trial,
the trial court was not required to grant it. The only clearly established Supreme Court
standard is that such a request must be granted if made "weeks before trial." Faretta, 422
U.S. at 835. See also Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005) (holding
that state trial court did not violate Faretta when it denied a request for self-
representation made the day trial was to begin). Pritchett asks us to consider his day-of-
trial request as a renewal of his two earlier requests, so as to render it timely. But the
earlier requests were equivocal, and did not invoke the right of self-representation.
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Pritchett relies on Armant v. Marquez, 772 F.2d 552, 558 (9th Cir. 1985), and
other decisions of our Court for the principle that after a defendant has invoked his
Faretta rights, denying him a continuance to prepare for trial can effectively render his
right to self-representation meaningless. But because these are not decisions of the
Supreme Court, his reliance on them is unavailing. See Parker v. Matthews, ___ U.S.
___, 132 S.Ct. 2148, 2155–56 (2012) (holding that circuit precedent cannot serve as a
basis for habeas relief). Where a defendant untimely invokes his right to self-
representation, no clearly established decision of the Supreme Court forbids a state court
from requiring him to elect between grudgingly proceeding with counsel or proceeding
pro se without additional time to prepare. That is particularly true here, where Pritchett
had the benefit of standby counsel who was familiar with the case to assist him.
Furthermore, after Pritchett began representing himself, he requested a
continuance in order to file motions, obtain new evidence, and prepare for trial. The
record shows the trial court considered his requests and explained why, in its judgment,
the continuance was not needed. Pritchett has not shown that the denial amounted to an
unreasonable or arbitrary insistence on going forward in the face of a justifiable request
for delay, see Ungar v. Sarafite, 376 U.S. 575, 589 (1964), nor that he was prejudiced
by it. See Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997) (holding that habeas
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relief was unwarranted where there was no showing that denial of a continuance resulted
in actual prejudice).
We conclude that the trial court's denial of a continuance did not violate Pritchett's
clearly established due process or Sixth Amendment rights, and the state courts' rejection
of his claim was not objectively unreasonable.
AFFIRMED.
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