Ricky Jarrett v. David Shinn ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 2 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICKY LEE JARRETT, No. 19-16518
Petitioner-Appellant, D.C. No. 2:18-cv-00892-DLR
v.
MEMORANDUM*
DAVID SHINN**; ATTORNEY GENERAL
FOR THE STATE OF ARIZONA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted November 20, 2020***
Phoenix, Arizona
Before: BYBEE, MURGUIA, and BADE, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
David Shinn, Director of the Arizona Department of Corrections, is
substituted for Charles L. Ryan. See Fed. R. App. P. 43(c)(2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Ricky Lee Jarrett appeals the district court’s denial of his petition for habeas
corpus relief. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(c)(1)(A). We affirm.
This court reviews de novo the district court’s decision to grant or deny a
petition for habeas corpus. See Lambert v. Blodgett, 393 F.3d 943, 964–65 (9th
Cir. 2004). Habeas review of a state court judgment is governed by the Anti-
Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d). Habeas relief sought pursuant to § 2254(d) cannot be granted unless the
defendant shows that the last reasoned decision of the state courts “was contrary
to” federal law then clearly established in the holdings of the Supreme Court, or
that the decision “involved an unreasonable application of” such law, or that it
“‘was based on an unreasonable determination of the facts’ in light of the record
before the state court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28
U.S.C. § 2254(d); other citation omitted); Hibbler v. Benedetti, 693 F.3d 1140,
1146 (9th Cir. 2012).
1. Jarrett first contends that the state trial court denied him the right to
self-representation. We review the decision of the state post-conviction relief
(“PCR”) court as it is the last reasoned decision of the state courts. The state PCR
court concluded that Jarrett abandoned his request to represent himself and, thus,
that his right to self-representation was not violated. Jarrett asserts that he is
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entitled to habeas relief because that decision is based on an unreasonable
determination of the facts and is an unreasonable application of clearly established
federal law. We disagree.
Denial of a defendant’s timely and unequivocal motion to represent himself
violates the Sixth Amendment. Faretta v. California, 422 U.S. 806, 818–19, 835–
36 (1975); Tamplin v. Muniz, 894 F.3d 1076, 1085 (9th Cir. 2018) (stating that “a
denial of self-representation in the face of” an “unequivocal and timely request” is
a violation of the Sixth Amendment and the violation “is complete at the time of
the court’s denial” (citing Faretta, 422 U.S. at 835–36)); cf. United States v.
Hernandez, 203 F.3d 614, 623 (9th Cir. 2000) (“It may also be true that a district
court may under some circumstances properly reserve ruling until a later date.”),
overruled on other grounds by Indiana v. Edwards, 554 U.S. 164 (2008). But a
defendant who asserts his right to self-representation can later waive the right
through his subsequent conduct. See McKaskle v. Wiggins, 465 U.S. 168, 182
(1984).
We first address Jarrett’s contention that the state PCR court’s decision
relies on an unreasonable determination of the facts. The state PCR court
concluded that Jarrett “abandoned his motion for waiver of counsel and self-
representation” and that the trial court “made it clear that the plan was to see if new
counsel would satisfy his concerns and, if not, clearly advised [Jarrett] that his
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motion could be renewed.” And while the trial court expressed some skepticism
about Jarrett’s ability to represent himself, it also specifically deferred ruling on
Jarrett’s motion to waive counsel and indicated it wanted him “to have the full
opportunity to have an attorney represent [him]” but that, “[i]f at some point after
that [he]’d still like to renew [the] motion to go pro per,” he could do so. Jarrett
did not again seek to represent himself until sentencing. Based on these facts, it
was not unreasonable for the state PCR court to find that, although the trial court
deferred ruling on Jarrett’s self-representation request, his subsequent conduct
indicated that he was satisfied with his new counsel and had abandoned his request
to represent himself. Accordingly, Jarrett has not shown he is entitled to habeas
relief pursuant to § 2254(d)(2).
Jarrett also failed to establish entitlement to habeas relief under
§ 2254(d)(1). Although Jarrett asserts that the state PCR court’s decision was
contrary to clearly established law, he does not argue that the state PCR court
identified the wrong legal standard or rule for analyzing his self-representation
claim. See Lockyer v. Andrade, 538 U.S. 63, 73 (2003). Nor does he cite to a
Supreme Court decision that is factually indistinguishable from his case that came
to a different result. See id. at 73–74. Indeed, Jarrett cites no Supreme Court case
that has specifically addressed whether a court’s deferred ruling on a defendant’s
motion to represent himself constitutes a denial of the motion or whether a
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defendant who has failed to renew his request in response to a deferred ruling can
be deemed to have abandoned it. Thus, Jarrett has not established that the state
PCR court’s decision is contrary to clearly established federal law.
Because Jarrett does not argue that the state PCR court failed to “identif[y]
the correct governing legal principle,” the question here is whether the state PCR
court “unreasonably applie[d] that principle to the facts of [Jarrett’s] case.” Id. at
75 (citation omitted). If “fairminded jurists could disagree” as to “the correctness
of the state court’s decision,” then the state court’s decision is not an unreasonable
application of clearly established federal law and habeas relief is unavailable.
Harrington, 562 U.S. at 101 (citation omitted).
A defendant may waive the right to self-representation after it has been
timely and unequivocally invoked. See McKaskle, 465 U.S. at 182. Here, the state
PCR court determined that the state trial court deferred ruling on Jarrett’s self-
representation request and that Jarrett later abandoned his request—findings that
were not unreasonable based on the record. Given these findings, fairminded
jurists could disagree on whether Jarrett waived his right to self-representation by
failing to renew his request until sentencing after the state trial court deferred
ruling on his initial request. See id.; Tamplin, 894 F3d at 1085. Thus, the state
PCR court’s conclusion that Jarrett’s right to self-representation was not violated
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because he waived his right to self-representation was not an unreasonable
application of clearly established federal law.
Jarrett has not established entitlement to habeas relief based on his self-
representation claim. Accordingly, the district court did not err.
2. Jarrett also asks the court to expand his certificate of appealability to
include claims that his constitutional right to effective assistance of counsel was
violated because of the allegedly deficient performance of his trial counsel. See
9th Cir. R. 22-1(e) (stating that the inclusion of uncertified issues in a habeas
petitioner’s briefing will be treated “as a motion to expand” the certificate of
appealability); see Strickland v. Washington, 466 U.S. 668, 687 (1984)
(recognizing right to effective assistance of counsel). We deny that request
because Jarrett did not make a substantial showing that he suffered prejudice as a
result of any deficient performance due to the overwhelming evidence of his guilt.
28 U.S.C. § 2253(c)(2); see Harrington, 562 U.S. at 113. Moreover, as to Jarrett’s
claim that trial counsel was deficient for failing to challenge the preclusion of
evidence of the victim’s prior bad acts, the state PCR court determined that
Jarrett’s claimed knowledge of relevant prior bad acts was raised for the first time
during post-conviction relief proceedings and was “directly opposed” to his
testimony at trial and, thus, that Jarrett was not credible. Jarrett has not overcome
the deference we must accord a state court’s credibility determination. See Sexton
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v. Cozner, 679 F.3d 1150, 1156–57 & n.1 (9th Cir. 2012); Lambert, 393 F.3d at976–78. We deny Jarrett’s request to expand the certificate of appealability to
include his two claims of ineffective assistance of counsel because he has not made
a substantial showing of a violation of his constitutional right to effective
assistance of counsel.
AFFIRMED.
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