Cooks v. Newland ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND I. COOKS,  No. 03-56326
Petitioner-Appellant,
v.  D.C. No.
CV-00-00541-VAP
A. C. NEWLAND, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Argued and Submitted
October 8, 2004—Pasadena, California
Filed January 19, 2005
Before: J. Clifford Wallace, Thomas G. Nelson, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Wallace
831
COOKS v. NEWLAND 833
COUNSEL
Andrew E. Rubin, Los Angeles, California, for the petitioner-
appellant.
David F. Glassman, Deputy Attorney General, Los Angeles,
California, for the respondent-appellee.
OPINION
WALLACE, Senior Circuit Judge:
State prisoner Cooks appeals from the district court’s judg-
ment denying his petition for a writ of habeas corpus. He
argues that the California Court of Appeal unreasonably
applied Faretta v. California, 422 U.S. 806 (1975), and Gid-
eon v. Wainwright, 372 U.S. 335 (1963), when it affirmed his
robbery convictions. Cooks contends that the state trial court
should not have consolidated two separate criminal cases in
which he was a defendant, representing himself in one case
and represented by counsel in the other. He asserts that this
improperly forced him to choose between invoking his consti-
tutional right to self-representation, as recognized in Faretta,
834 COOKS v. NEWLAND
or his Gideon right to counsel on both charges. The district
court had jurisdiction pursuant to 28 U.S.C. § 2254, and we
have jurisdiction over this timely appeal pursuant to 28 U.S.C.
§ 2253. We affirm.
I.
Cooks robbed James Fleming and Ignacio Suarez sepa-
rately. The two robberies were conducted within 15 days
under similar circumstances: both involved the use of a gun,
both occurred in daylight, and both victims had just with-
drawn cash from the same bank branch.
Fleming identified Cooks from a photographic lineup, and
the State of California charged Cooks with robbery (Fleming
Case). Cooks was granted permission to represent himself.
Suarez also identified Cooks from a photographic lineup.
The state charged Cooks with robbery in a separate case
(Suarez Case). A public defender was appointed.
The Fleming Case and the Suarez Case initially proceeded
separately, with Cooks representing himself in the former and
represented by appointed counsel in the latter. The state
moved to consolidate the two cases. See Cal. Penal Code
§ 954 (“An accusatory pleading may charge two or more dif-
ferent offenses connected together in their commission, or dif-
ferent statements of the same offense or two or more different
offenses of the same class of crimes or offenses, under sepa-
rate counts, and if two or more accusatory pleadings are filed
in such cases in the same court, the court may order them to
be consolidated”). Cooks objected to consolidation, arguing
that it would “improperly force him to choose between giving
up his right to represent himself in the Fleming [C]ase or giv-
ing up his right to appointed counsel in the Suarez [C]ase.”
The trial court consolidated the cases over Cooks’ objection,
and told Cooks that he would have to decide whether to repre-
sent himself or proceed with counsel in the consolidated case.
COOKS v. NEWLAND 835
Cooks initially chose the public defender but later decided to
represent himself, which he did throughout the trial.
A jury convicted Cooks of both robberies. Cooks appealed
on a number of grounds, including that the consolidation
motion was improperly granted, but the California Court of
Appeal affirmed his conviction. With respect to Cooks’ objec-
tion to the consolidation, the Court of Appeal stated:
On this appeal, [Cooks] contends the charges should
not have been consolidated because the consolida-
tion compelled a choice he should not have had to
make. This is a non-issue.
The charges were properly consolidated because
the crimes (armed robberies based on virtually iden-
tical facts) were offenses of the same class that could
have been joined in the first instance. (PEN. CODE,
§ 954; People v. Hill (1995) 34 Cal. App. 4th 727,
734.) Had the two robberies been filed as one case,
Cooks could have sought severance — but it would
have been his burden to show there was a substantial
danger of prejudice if the charges were not sepa-
rately tried. (People v. Bean (1988) 46 Cal. 3d 919,
938.) Cooks offers no authority (and we know of
none) to suggest that, in either event (severance or
consolidation), a defendant’s desire to represent him-
self as to one robbery but not the other is the sort of
“prejudice” required to compel severance or to com-
pel the denial of a motion to consolidate.
Once the charges were properly joined, Cooks —
as he would in any case — had the right to decide
whether to represent himself or whether to have
counsel represent him. To conclude that Cooks could
prevent joinder by a demand for pro. per. status as to
one charge and a demand for counsel as to the other
would divest the trial court of all control over the
836 COOKS v. NEWLAND
matter of severance and entrust the choice to the
defendant. That we will not do. (See U.S. v. Archer
(7th Cir. 1988) 843 F.2d 1019, 1022.) In any event,
the rule that Cooks urges upon us makes no sense.
For example, what would happen if Cooks got his
severance but then changed his mind about the attor-
ney representing him in [the Suarez Case]? If Cooks
timely asked for pro. per. status in [the Suarez Case],
could the cases be rejoined? Conversely, if he got
tired of exercising his Faretta rights in [the Fleming
Case] and decided instead to exercise his right to
counsel in that case, could [the Fleming and Suarez
Cases] be rejoined? We could go on, but we think
this makes the point.
After the California Supreme Court summarily denied
Cooks’ petition for review, Cooks filed a federal petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging
that “[t]he trial court violated petitioner’s constitutional rights
by consolidating two separate cases, one where he represented
himself and one where he was represented by appointed coun-
sel, and forcing petitioner to choose between representing
himself on both charges or being represented by the public
defender’s office on both charges.” The district court denied
Cooks’ petition.
II.
We review the district court’s judgment denying Cooks’
application for a writ of habeas corpus de novo. See Nulph v.
Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). Pursuant to 28
U.S.C. § 2254(d)(1):
An application for a writ of habeas corpus on behalf
of a person in custody pursuant to the judgment of
a State court shall not be granted with respect to any
claim that was adjudicated on the merits in State
COOKS v. NEWLAND 837
court proceedings unless the adjudication of the
claim—
(1) resulted in a decision that was con-
trary to, or involved an unreasonable appli-
cation of, clearly established Federal law,
as determined by the Supreme Court of the
United States[.]
The Supreme Court has explained the meaning of the statu-
tory phrases “clearly established,” “contrary to,” and “unrea-
sonable application,” as follows:
Section 2254(d)(1)’s “clearly established” phrase
refers to the holdings, as opposed to the dicta, of this
Court’s decisions as of the time of the relevant state-
court decision. In other words, “clearly established
Federal law” under § 2254(d)(1) is the governing
legal principle or principles set forth by the Supreme
Court at the time the state court renders its decision.
...
First, a state court decision is contrary to our
clearly established precedent if the state court
applies a rule that contradicts the governing law set
forth in our cases or if the state court confronts a set
of facts that are materially indistinguishable from a
decision of this Court and nevertheless arrives at a
result different from our precedent. . . .
Second, under the “unreasonable application”
clause, a federal habeas court may grant the writ if
the state court identifies the correct governing legal
principle from this Court’s decisions but unreason-
ably applies that principle to the facts of the prison-
er’s case. The “unreasonable application” clause
requires the state court decision to be more than
incorrect or erroneous. The state court’s application
838 COOKS v. NEWLAND
of clearly established law must be objectively unrea-
sonable.
Lockyer v. Andrade, 538 U.S. 63, 71-72, 73, 75 (2003) (inter-
nal quotations, alterations, and citations omitted).
[1] In this case, the relevant “clearly established” Supreme
Court law is Faretta v. California and Gideon v. Wainwright.
Faretta held that a criminal defendant has a Sixth Amend-
ment right to represent himself. 422 U.S. at 807. Gideon held
that the Sixth Amendment requires the state to appoint coun-
sel for indigent criminal defendants. 372 U.S. at 343-45. As
the Court has stated, “the right to self-representation is not
absolute.” Martinez v. Court of Appeal, 528 U.S. 152, 161
(2000). That right cannot be “a license not to comply with rel-
evant rules of procedural and substantive law,” and a trial
court may terminate self-representation where a defendant
“deliberately engages in serious and obstructionist miscon-
duct.” Faretta, 422 U.S. at 834 n.46. The trial court may also,
“even over objection by the accused - appoint a ‘standby
counsel’ to aid the accused.” Id. Standby counsel may then
participate in trial proceedings, without the express consent of
the defendant, so long as the participation does not “seriously
undermine[ ]” the “appearance before the jury” that the defen-
dant is proceeding pro se. McKaskle v. Wiggins, 465 U.S. 168,
187 (1984). Therefore, “the government’s interest in ensuring
the integrity and efficiency of the trial at times outweighs the
defendant’s interest in acting as his own lawyer.” Martinez,
528 U.S. at 162.
[2] The state court’s decision was not “contrary to” Faretta
or Gideon. As Cooks concedes, neither of those cases, nor any
other Supreme Court decision, “holds that the right to an
attorney or the right to represent oneself prevents a joinder of
two separate cases.” The state court therefore did not “ ‘ap-
pl[y] a rule that contradicts the governing law set forth in [the
Supreme Court’s] cases.’ ” Lockyer, 538 U.S. at 73, quoting
Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
COOKS v. NEWLAND 839
The next issue is whether the California Court of Appeal
decision rejecting Cooks’ claim was an “unreasonable appli-
cation” of Faretta or Gideon. Cooks concedes that if the two
charges had been brought initially in a single case, he would
have no unqualified right to compel severance so that he
could represent himself on one count and have counsel on the
other. He also does not argue that the consolidation caused
him prejudice. However, he contends that once the state chose
to proceed against him in two separate cases, and he invoked
Faretta in one case and Gideon in the other, it was objectively
unreasonable for the state court to conclude that Faretta and
Gideon did not preclude consolidation, regardless of preju-
dice.
[3] That Cooks could not exercise his Faretta right in the
Fleming Case without giving up his Gideon right in the
Suarez Case, and vice versa, does not render the state court’s
action constitutionally impermissible. As we stated in the con-
text of a challenge to the voluntariness of a waiver of the right
to counsel, “there is no authority for the proposition that [a
defendant] is entitled to an absolutely unconditional choice
between exercising his right to counsel and his right to self-
representation.” United States v. Robinson, 913 F.2d 712, 715
(9th Cir. 1990).
[4] Indeed, Cooks recognizes as much. At oral argument,
Cooks’ counsel conceded that if the state, instead of moving
to consolidate, had voluntarily dismissed both cases without
prejudice and filed a new indictment including both counts,
no Faretta or Gideon problem would have arisen. Cooks’
argument, then, is not that the state could not seek to combine
the two cases, but just that it could not do so through a consol-
idation motion. The California Court of Appeal was not
objectively unreasonable in concluding that the principles
established in Faretta and Gideon do not turn on such proce-
dural niceties.
AFFIRMED.