Jerry Pough v. William Gittere ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY D. POUGH, AKA Jerry Doran No. 20-17313
Pough, AKA Jerry Duron Pough,
D.C. No.
Petitioner-Appellant, 3:18-cv-00191-MMD-CLB
v.
MEMORANDUM*
WILLIAM GITTERE; et al.,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted March 16, 2022
Las Vegas, Nevada
Before: KLEINFELD, D.M. FISHER,** and BENNETT, Circuit Judges.
Jerry Pough Sr. appeals from the dismissal of his petition for a writ of
habeas corpus by the U.S. District Court for the District of Nevada. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
The District Court issued a certificate of appealability for two issues:
whether Nevada violated Pough’s constitutional rights by (1) allowing him to
waive his right to counsel and represent himself, or (2) allowing him to dismiss
counsel without appointing replacement counsel.
On the first issue, Pough argues that the Nevada Supreme Court’s conflated
the standard for competency to stand trial under Dusky v. United States, 362 U.S.
402 (1960) (per curiam), with the standard for a valid waiver of the right to counsel
under Faretta v. California, 422 U.S. 806 (1975). In particular, he argues that, after
he was deemed competent, the Justice Court and Nevada District Court “rubber-
stamped” his request to represent himself without adequately inquiring into
whether his waiver was knowing and voluntary, and for this reason the Nevada
Supreme Court erred in holding there was no constitutional violation. Under the
Antiterrorism and Effective Death Penalty Act, we are not to issue a writ of habeas
corpus unless the Nevada Supreme Court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
Pough cannot overcome this exacting standard. The Justice Court and
Nevada District Court covered much of the same ground: whether Pough
understood that he would need to follow court rules and procedures, that the court
would not aid him in his defense, that the State’s attorneys would have an
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advantage over him due to their superior training and expertise, and more. In short,
the canvasses conducted by the Nevada Justice Court and District Court were
thorough and ensured Pough was waiving his right to counsel “with [his] eyes
open” to the risks of self-representation at trial. Iowa v. Tovar, 541 U.S. 77, 88
(2004) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279
(1942)). Moreover, the Nevada Supreme Court applied the correct standard that a
waiver of the right to counsel is constitutional so long as it is knowing and
voluntary. To be sure, its decision cites Nevada caselaw,1 which in turn cites to the
controlling Supreme Court precedent, Faretta, 422 U.S. at 835-36. But the U.S.
Supreme Court has held that this approach is not problematic—indeed, “a state
court need not cite or even be aware of our cases under [AEDPA].” Harrington v.
Richter, 562 U.S. 86, 98 (2011). The Nevada Supreme Court decision was not
contrary to federal law as determined by the Supreme Court of the United States.
Pough further argues that the Nevada Supreme Court’s decision concerning
the validity of his waiver of counsel was based on unreasonable factual
determinations. See 28 U.S.C. § 2254(d)(2). Specifically, Pough argues the Nevada
trial court erred because it had incomplete information about his history of
schizophrenia and the Nevada Supreme Court unreasonably deferred to the trial
court.
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Tanksley v. State, 946 P.2d 148, 150 (Nev. 1997).
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Although Pough’s competency was in question during pre-trial proceedings,
he was deemed competent to stand trial immediately before each of his Faretta
canvasses. Once Pough was deemed competent, the Constitution permits him to
represent himself so long as his waiver was knowing and voluntary and he was
informed of the dangers of self-representation at trial. Tovar, 541 U.S. at 88-89;
Godinez v. Moran, 509 U.S. 389, 400-01 (1993). As discussed above, this standard
was met here. The Nevada Supreme Court reviewed the entire record, including
Pough’s history of schizophrenia, and determined that “[n]othing in the record
suggests that Pough’s mental illness kept him from understanding the risks of self-
representation or otherwise making a knowing, voluntary, and intelligent
decision.” The Nevada Supreme Court decision was thus not based on
unreasonable factual determinations.
On the second issue, Pough argues that the Supreme Court’s holding in
McCoy v. Louisiana, 138 S. Ct. 1500 (2018), instructs that substitute counsel
should have been appointed based on his conflict with appointed counsel over trial
strategy. Pough’s case, however, is readily distinguishable from McCoy. There, a
trial court allowed defense counsel, over the defendant’s objection, to tell the jury
that the defendant committed three murders in the hope that the jury would spare
the defendant the death penalty. McCoy, 138 S. Ct. at 1505. Here, Pough invoked
his constitutional right to self-representation and conducted his own defense at
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trial, where he maintained his innocence. Pough’s counsel therefore did not
interfere with his right to maintain his innocence at trial in violation of his Sixth
Amendment rights.
AFFIRMED.
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