United States v. 2005-01-12 | 03-56836 | MARSHALL VTAYLOR | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 WILLIAM ALLEN MARSHALL,
Petitioner-Appellant, No. 03-56836
v. D.C. No.
 DON TAYLOR, Warden; ATTORNEY CV-00-12890-PA
GENERAL OF THE STATE OF OPINION
CALIFORNIA,
Respondents-Appellees. 
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 8, 2004—Pasadena, California
Filed January 13, 2005
Before: J. Clifford Wallace, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Senior Circuit Judge T.G. Nelson
575

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COUNSEL
Sean K. Kennedy, Deputy Federal Public Defender, Los
Angeles, California, for the petitioner-appellant.
Peggie Bradford Tarwater, Deputy Attorney General, Los
Angeles, California, for the respondents-appellees.
OPINION
T.G. NELSON, Senior Circuit Judge:
William Allen Marshall appeals the district court’s denial
of his writ of habeas corpus for an alleged violation of Faretta
v. California.1 We have jurisdiction pursuant to 28 U.S.C.
§ 2253. Marshall asked to represent himself on the morning
of his state court trial. The state trial court denied his request
on the impermissible ground that Marshall lacked the requi-
site skill and knowledge to represent himself. The California
Court of Appeal affirmed on the proper ground that Mar-
shall’s request was untimely. Marshall now contends (1) that
the court of appeal’s decision was contrary to Faretta and (2)
that its finding of untimeliness was based on an unreasonable
determination of the facts. We disagree. Therefore, we affirm
the district court’s denial of Marshall’s habeas petition.
I. BACKGROUND
Prior to jury selection on the morning of Marshall’s state
court trial, Marshall moved for a change of counsel or, in the
alternative, to represent himself pursuant to Faretta. Although
the court expressed concern that Marshall was trying to delay
trial by moving for new counsel, the reason the court ulti-
mately specified for denying his Faretta request was that
1422 U.S. 806 (1975).
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Marshall lacked the skills and understanding necessary to rep-
resent himself. Marshall objected to the ruling. A court-
appointed attorney represented Marshall during his trial, the
jury convicted him, and he received a sentence of 25-years-to-
life.
On direct appeal, Marshall raised the denial of his Faretta
request. The California Court of Appeal stated that under Peo-
ple v. Windham,2 invocation of the right of self-representation
required an unequivocal request made a reasonable amount of
time before trial. The court held that Marshall’s request was
untimely, citing several factors. First, the court noted that
Marshall made his request on the day trial was set to com-
mence and after he had received several continuances of trial.
Second, the court noted that Marshall presented no facts to
show that his last-minute request was reasonable. Accord-
ingly, the California Court of Appeal held that the trial court
properly denied the Faretta request, though on grounds differ-
ent from those given by the trial court. The California
Supreme Court denied review.
Having exhausted his state court avenues of redress, Mar-
shall filed a federal habeas petition in the district court. He
argued that the denial of his Faretta request violated the Sixth
Amendment. In reviewing the record,3 the district court noted
that Marshall made at least six appearances in court after
becoming dissatisfied with his appointed counsel without
voicing his concerns. In addition, the district court noted Mar-
shall’s references for his need for more time in the record
when he made his request. In light of these facts, the district
2560 P.2d 1187, 1191 (Cal. 1977).
3In its review of the record, the district court considered facts developed
in the California courts as well as before the magistrate judge. Because we
should judge the reasonableness of the state court’s finding of untimeli-
ness by the facts that were in the state court record, see 28 U.S.C.
§ 2254(d)(2), our decision rests solely on the facts developed in the Cali-
fornia state courts.
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court concluded that the California Court of Appeal properly
denied Marshall’s request as untimely because the denial was
based on neither an unreasonable application of Supreme
Court precedent nor an unreasonable interpretation of the
record. Consequently, the district court denied Marshall’s
petition.
Marshall appeals the district court decision arguing (1) that
the California Court of Appeal’s decision was contrary to
Faretta and (2) that its factual finding of untimeliness was
based on an unreasonable determination of the facts. We con-
clude that the California Court of Appeal properly complied
with Supreme Court precedent when it affirmed the trial court
based on untimeliness grounds. Furthermore, we conclude
that because the record supports the court of appeal’s affir-
mance, the decision rested on a reasonable determination of
the facts. We therefore affirm the district court’s denial of
Marshall’s habeas petition.
II. STANDARD OF REVIEW
We review de novo a district court’s decision to grant or
deny a petition by a state prisoner for a writ of habeas corpus.4
“In conducting our review, we look to the last reasoned state-
court decision.”5
III. ANALYSIS
Marshall is entitled to habeas relief only if the California
Court of Appeal’s decision was “contrary to . . . clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States,”6 or if the decision “was based on an unrea-
4Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
5Id. In this case, because the California Supreme Court denied review,
we review the court of appeal’s decision.
628 U.S.C. § 2254(d)(1). Under 28 U.S.C. § 2254(d)(1) a habeas peti-
tioner is also entitled to relief if a state court’s decision was an unreason-
able application of clear Supreme Court precedent. However, Marshall has
not argued this possible ground for relief. Accordingly, we do not discuss
it.
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sonable determination of the facts in light of the evidence
presented in the State court proceeding.”7
A. The California Court of Appeal’s decision was a
consistent application of clearly established
Supreme Court law
The only definitive source of clearly established federal law
under 28 U.S.C. § 2254(d) is Supreme Court precedent exist-
ing at the time of the state court’s decision.8 Supreme Court
precedent includes not only the bright-line rules it establishes
but also the legal principles and standards flowing from them.9
[1] Supreme Court precedent regarding the permissible tim-
ing of a Faretta request is scarce. No Supreme Court case has
directly addressed the timing of a request for self-
representation. However, the holding in Faretta indirectly
incorporated a timing element.10 In Faretta, the Court men-
tioned that Faretta’s request was “[w]ell before the date of
trial,”11 and “weeks before trial.”12 It then held that “[i]n forc-
ing Faretta, under these circumstances, to accept against his
will a state-appointed public defender, the California courts
deprived him of his constitutional right to conduct his own
defense.”13 Thus, the Supreme Court incorporated the facts of
728 U.S.C. § 2254(d)(2).
8Williams v. Taylor, 529 U.S. 362, 412 (2000); Clark v. Murphy, 331
F.3d 1062, 1069 (9th Cir. 2003).
9See Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002).
10The Court also mentioned the timing of the self-representation request
in McKaskle v. Wiggins, 465 U.S. 168, 172 (1984) (detailing that the
defendant’s request was renewed the day before trial); however, the timing
of the request was not raised as an issue in that case. See Wiggins v.
Estelle, 681 F.2d 266, 268 (5th Cir. 1982), overruled by McKaskle, 465
U.S. 168.
11Faretta, 422 U.S. at 807.
12Id. at 835.
13Id. at 836 (emphasis added).
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Faretta into its holding. Accordingly, the holding may be read
to require a court to grant a Faretta request when the request
occurs “weeks before trial.” However, the holding does not
define when such a request would become untimely.
Moore v. Calderon14 acknowledged this reading of Faretta.
In Moore, we determined that a timeliness element in a
Faretta request is “clearly established Federal law, as deter-
mined by the Supreme Court.”15 The Ninth Circuit did not
define the timing element prescribed by Supreme Court prece-
dent, however. It merely acknowledged it. Thus, after Moore,
we know that Faretta clearly established some timing ele-
ment, but we still do not know the precise contours of that
element. At most, we know that Faretta requests made
“weeks before trial” are timely.
[2] Because the Supreme Court has not clearly established
when a Faretta request is untimely, other courts are free to do
so as long as their standards comport with the Supreme
Court’s holding that a request “weeks before trial” is timely.16
In Windham, the California Supreme Court held that a Faretta
request must be made a reasonable amount of time before trial.17
14108 F.3d 261, 265 (9th Cir. 1997), abrogated on other grounds by
Williams, 529 U.S. 362, as recognized by Baker v. City of Blaine, 221 F.3d
1108, 1110 n.2 (9th Cir. 2000).
15Id. (internal quotation marks omitted). As a general rule, “one three-
judge panel of this court cannot reconsider or overrule the decision of a
prior panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).
Thus, when a prior three-judge panel has held that a principle is clearly
established Supreme Court law, we are bound by the earlier panel’s deci-
sion.
16See Williams, 529 U.S. at 412-13.
17Windham, 560 P.2d at 1191. The Ninth Circuit has held that a Faretta
request made before the jury is impaneled is timely unless it was a tactic
to secure delay. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985).
However, “[o]ur own independent consideration of the [timing] issue is
neither relevant, nor necessary to dispose of the question presented.”
Clark, 331 F.3d at 1069.
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The California Court of Appeal applied the Windham rule in
this case to find Marshall’s request, made on the morning of
his trial, untimely. Because the timing of Marshall’s request
fell well inside the “weeks before trial” standard for timeli-
ness established by Faretta, the court of appeal’s finding of
untimeliness clearly comports with Supreme Court precedent.
Therefore, the California Court of Appeal could, and did,
properly conclude that Marshall’s request was untimely.
Accordingly, we conclude that Marshall is not entitled to
habeas relief on the basis that the California Court of
Appeal’s decision based on untimeliness was contrary to clear
Supreme Court precedent.
B. The California Court of Appeal’s decision was
based on a reasonable determination of the facts
[3] The California Court of Appeal was free to affirm the
trial court on any basis supported by the record.18 In this case,
the record supports the court of appeal’s affirmance on
untimeliness grounds. Marshall made his request to represent
himself on the day his trial was to commence and after several
continuances of his trial. Moreover, Marshall presented no
facts to show that his last-minute request was reasonable.
Thus, he could have made his request much earlier than the
day of trial. These unrebutted facts19 provide clear support for
the California Court of Appeal’s decision that Marshall’s
Faretta request was untimely.20 Therefore, Marshall is not
18See Hamilton v. Groose, 28 F.3d 859, 862 n.3 (8th Cir. 1994) (stating
that where “the state court record fairly support[ed] the [state appellate
court’s] finding that [defendant] did not unequivocally invoke his right to
represent himself,” it did not matter that state trial judge, in denying
Faretta request, “expressed his concerns about [defendant’s] ability to rep-
resent himself”).
19We must accept the court of appeal’s factual determinations as correct
unless Marshall rebutted them with clear and convincing evidence. 28
U.S.C. § 2254(e)(1). Marshall did not do so.
20This is not a case where timeliness “could not have been, and was not
in fact, the reason for the trial court’s decision.” Bribiesca v. Galaza, 215
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entitled to habeas relief on the ground that the court of
appeal’s decision was based on an unreasonable determina-
tion of the facts.
IV. CONCLUSION
Marshall’s arguments that (1) the California Court of
Appeal’s decision was contrary to Faretta and that (2) the
court’s finding of untimeliness was based on an unreasonable
determination of the facts are unpersuasive. In the absence of
clear Supreme Court precedent defining when a Faretta
request becomes untimely, the California Court of Appeal
was free to determine that under California’s Windham rule,
Marshall’s request on the day of trial was untimely. The court
of appeal did so. Thus, the court of appeal’s affirmance rested
on state law consistent with Supreme Court precedent. Addi-
tionally, the record clearly supported the court of appeal’s
finding of untimeliness. Thus, the court of appeal’s affir-
mance rested on a reasonable determination of the facts. As
a result, Marshall has not established grounds for habeas relief
pursuant to 28 U.S.C. § 2254(d). Therefore, we affirm the dis-
trict court’s denial of Marshall’s habeas corpus petition.
AFFIRMED.
F.3d 1015, 1020 (9th Cir. 2000) (emphasis added). Nor is it a case where
“nothing in the record suggests that the trial court would have denied the
motion on timeliness grounds had it believed that [Marshall] was compe-
tent to represent [him]self.” Van Lynn, 347 F.3d at 741.
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