United States v. 2020-10-07 | 19-35940 | JEREMIAH WINCHESTER V. MIKE OBENLAND | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JEREMIAH LANCE WINCHESTER,
Petitioner-Appellant,
v.
MIKE OBENLAND, Superintendent
Washington State Dept. of Corrections;
ERIC JACKSON, Associate
Superintendent,
Respondents-Appellees.
No. 19-35940
D.C. No. 2:17-cv-01136-RSL
MEMORANDUM
*
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Submitted September 4, 2020
**
Seattle, Washington
Before: BYBEE and COLLINS, Circuit Judges, and SOTO,
***
District Judge.

FILED
OCT 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.

Jeremiah Winchester appeals from a district court order denying his petition
for habeas review based upon his Sixth Amendment right to counsel of his choice.
We have jurisdiction under 28 U.S.C. § 2253. We review a district court’s
decision to deny habeas relief de novo. Ramirez v. Ryan, 937 F.3d 1230, 1240 (9th
Cir. 2019). We affirm.
The parties are aware of the facts, and we will not recite them except as
necessary for this order. Winchester brings two arguments on appeal. First, he
argues that the district court erroneously denied habeas relief because the trial
judge’s denial of his motion to substitute counsel violated his Sixth Amendment
right to counsel of his choice. Second, and alternatively, Winchester argues that
the district court erred by denying habeas relief without holding an evidentiary
hearing.
As an initial matter, the parties dispute whether we should apply the
Antiterrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of
review or whether the pre-AEDPA de novo standard governs. AEDPA’s
deferential standard only applies if the Washington Court of Appeals adjudicated
Winchester’s Sixth Amendment right-to-counsel-of-choice claim on its merits. See
Johnson v. Williams, 568 U.S. 289, 292 (2013) (28 U.S.C. § 2254(d) applies only
if the claim “has been adjudicated on the merits in State court”) (internal
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quotations omitted); Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002)
(AEDPA’s strict standard of review may be relaxed if the state court does not
adjudicate the underlying claim on the merits). We need not resolve this question,
however, because Winchester’s arguments fail even under the pre-AEDPA
standard of review.
Under the Sixth Amendment, a criminal defendant is entitled to be
represented by the counsel of his or her choice. Wheat v. United States, 486 U.S.
153, 159 (1988). That right is not absolute, however, and a trial court enjoys “wide
latitude in balancing the right to counsel of choice . . . against the demands of its
calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citing
Morris v. Slappy, 461 U.S. 1, 11–12 (1983)). This balancing of “the defendant’s
reason for requesting substitution against the scheduling demands of the court”
may entail a consideration of any “[c]onflict between the defendant and his
attorney” where, as here, such conflicts are a stated reason for requesting
substitution. United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010).
In such circumstances, it is appropriate to consider the same three factors that
guide the trial judge’s discretion in any substitution-of-counsel case: (1) the
timeliness of the defendant’s motion; (2) the adequacy of the trial judge’s inquiry
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into the defendant’s complaints; and (3) the extent of the attorney-client conflict.
United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).
Winchester argues that the trial judge failed to adequately inquire into his
counsel-related complaints because the judge did not affirmatively ask whether
Winchester intended to retain counsel or receive different appointed counsel.
However, the Sixth Amendment does not impose such a duty on a trial judge. It
only requires the judge to evaluate the defendant’s complaints and reach an
informed decision. See id. Here, the trial judge considered each of Winchester’s
complaints about his counsel before ultimately denying the motion.
Moreover, the trial judge heard Winchester’s motion to substitute counsel
for the first time on the morning of trial. At that point, a prospective jury panel
was waiting to begin jury selection, and the attorneys—including
Winchester’s—were prepared to begin. Even assuming that Winchester had
already retained counsel, “it would be extremely unlikely” that the new counsel
would have been prepared to try the case. United States v. Torres-Rodriguez, 930
F.2d 1375, 1381 (9th Cir. 1991), abrogated on other grounds by Bailey v. United
States, 516 U.S. 137 (1995). A “delay in the proceedings” would have been
virtually certain in that scenario. Id. at 1380 n.2. All the while, Winchester’s
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appointed counsel was present and prepared to proceed. The trial judge did not
abuse his discretion by denying Winchester’s motion to substitute counsel.
Finally, Winchester is not entitled to an evidentiary hearing. To be entitled
to an evidentiary hearing, Winchester must have alleged facts that, if proven,
would entitle him to relief. Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir.
2005). Even if Winchester could prove that he had retained outside counsel as he
claims, denying substitution of counsel on the morning of trial was a valid exercise
of the trial court’s discretion. Accordingly, the district court did not err in failing
to hold an evidentiary hearing.
AFFIRMED.
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