Harum Patterson v. Debbie Asuncion ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HARUM PATTERSON, No. 16-55391
Petitioner-Appellant, D.C. No.
2:15-cv-04922-CJC-KK
v.
DEBBIE ASUNCION, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted March 6, 2018**
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Petitioner Harum Patterson (“Patterson”) appeals from the district court’s
denial of his petition for a writ of habeas corpus. We have jurisdiction under 28
U.S.C. § 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1. The California Court of Appeal did not apply Faretta v. California, 422 U.S.
806 (1975), unreasonably in affirming the trial court’s decision that Patterson had
abandoned his March 28, 2012 motion for self-representation. Arguing that
Faretta prohibits trial courts from finding such motions abandoned, Patterson
contends that the trial court was required to grant his motion or initiate a colloquy
to further establish that he understood the dangers of self-representation. But in
Sandoval v. Calderon, 241 F.3d 765, 775 (9th Cir. 2001), we recognized that a
defendant may withdraw his request for self-representation and that the trial court
need not “engage in a personal colloquy with the defendant” to find the motion
withdrawn.
2. The California Court of Appeal’s decision that Patterson abandoned his
March 28, 2012 Faretta motion did not rest on an unreasonable determination of
the facts in light of the evidence presented in the state court proceeding.
Patterson first contends that the trial court’s fact-finding process was defective
because the court determined that he had abandoned his March 28, 2012 motion in
his absence, and without providing him notice that it would be ruled on, at a
hearing on July 9, 2012. The trial court did not, however, make such a ruling on
July 9, 2012. Instead, the July 9, 2012 hearing was held to consider Patterson’s
second request for self-representation made earlier that day. The court mentioned
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Patterson’s March 28, 2012 motion (which the record suggests he withdrew at a
hearing on April 17, 2012) only in reference to the second Faretta motion.
Next, Patterson argues that the California Court of Appeal erroneously relied
on (1) his subsequent appearances with counsel, (2) his counsel’s statement that
Patterson no longer wished to pursue the motion, and (3) the master calendar
judge’s statement that there were no such pending motions. “[T]he failure of a
defendant to renew a self-representation request [provides] support for the
conclusion that the request was equivocal,” or abandoned. United States v.
Hernandez, 203 F.3d 614, 623 (9th Cir. 2000), abrogated on other grounds by
Indiana v. Edwards, 554 U.S. 164 (2008). Additionally, trial courts may rely on
counsel’s statement that a client wishes to withdraw a Faretta motion. Sandoval,
241 F.3d at 774–75. And, finally, the minor factual inconsistencies to which
Patterson points do not overcome the “daunting standard” that 28 U.S.C.
§ 2254(d)(2) imposes to render a factual finding unreasonable. Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by Murray v.
Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). The California Court of
Appeal’s decision was therefore supported by the record.
3. Remand to the district court is not required because the magistrate judge,
whose report and recommendation the district court adopted, reviewed the
“relevant portions of the record on which the state court based its judgment.”
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Nasby v. McDaniel, 853 F.3d 1049, 1052 (9th Cir. 2017). Patterson argues that
remand is required because the magistrate judge mistakenly thought that a
transcript from one of the trial court’s hearings was absent from the record. But
that transcript was not relevant to the magistrate judge’s review of the California
Court of Appeal’s decision finding Patterson’s March 28, 2012 Faretta motion
abandoned. For this determination, the California Court of Appeal relied on
minute orders of Patterson’s subsequent appearances with counsel, as well as a
different transcript containing the statements of his counsel and the master calendar
judge.
4. Finally, the California Court of Appeal’s decision to affirm the trial court’s
denial of Patterson’s July 9, 2012 Faretta motion did not rest on an unreasonable
determination of the facts in light of the evidence presented in the state court
proceeding. As a threshold matter, it was not an unreasonable application of
Faretta for the state courts to find Patterson’s July 9, 2012 motion untimely. See
Marshall v. Taylor, 395 F.3d 1058, 1060–61 (9th Cir. 2005).
Recognizing that Faretta protects only timely motions, see Stenson v.
Lambert, 504 F.3d 873, 884–85 (9th Cir. 2007), Patterson argues that he is
nonetheless entitled to relief because the state courts allegedly misapplied the
California Supreme Court’s decision in People v. Windham, 560 P.2d 1187, 1191
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n.5 (Cal. 1977) (discussing when state courts may use their discretion to grant
untimely Faretta motions). This argument fails.
Patterson relies on Brumfield v. Cain, 135 S. Ct. 2269 (2015), to argue that a
“state’s failure to follow its own standards in implementing constitutional
guarantees constitutes an unreasonable finding of fact” for which federal habeas
courts may grant relief. But this interpretation of Brumfield ignores the unique
facts of that case. In Brumfield, the habeas petitioner moved to have his death
sentence vacated after Atkins v. Virginia, 536 U.S. 304 (2002), held that the Eighth
Amendment prohibits the execution of intellectually disabled persons. The Atkins
Court explicitly held that state standards of intellectual disability would govern
which offenders were ineligible for the death penalty under federal constitutional
law, id. at 317, and did not authorize federal habeas courts to review a state court’s
application of its own laws. We therefore decline to consider Windham.
AFFIRMED.
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