United States v. Richard Pulley, Jr. ( 2016 )

FILED
NOT FOR PUBLICATION FEB 24 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10491
Plaintiff - Appellee, D.C. No. 2:05-cr-00368-LKK-1
v.
MEMORANDUM*
RICHARD JAMES PULLEY, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted November 16, 2015
San Francisco, California
Before: KLEINFELD, WARDLAW, and PAEZ, Circuit Judges.
Richard Pulley, Jr. appeals his conviction for unlawful possession of a
firearm by a felon in violation of 18 U.S.C. § 922(g) and his fifteen-year sentence.
We hold that the district court denied Pulley his Sixth Amendment right to
represent himself. We therefore reverse his conviction and remand for a new trial.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
As a result, we do not reach his Eighth Amendment sentencing claim. We also
reject Pulley’s arguments that the Speedy Trial Act and Commerce Clause require
dismissal of the indictment.
1. Pulley’s Sixth Amendment right was violated, and his conviction must be
reversed under United States v. Farias, 618 F.3d 1049 (9th Cir. 2010). “A criminal
defendant does not simply have the right to represent himself, but rather has the
right to represent himself meaningfully. Meaningful representation requires time
to prepare.” Id. at 1053. Here, Pulley requested to proceed pro se three days
before trial. The district court relieved Pulley’s appointed counsel and conducted a
colloquy pursuant to Faretta v. California, 422 U.S. 806 (1975). After the district
court repeatedly informed Pulley that his trial would not be continued, however,
Pulley consented to reappointment of counsel because he would “have no time to
prepare” on his own. As in Farias, “by making it clear that [Pulley] would have no
time to prepare if he chose to proceed pro se, the district court denied him his right
to meaningfully represent himself.” 618 F.3d at 1054.
The government’s arguments to the contrary are not persuasive. Pulley
unequivocally asserted his right to represent himself before the district court
empaneled a jury, and the district court made no finding that Pulley’s request was
made in bad faith to secure delay. See id. at 1052. Alone, the proximity of
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Pulley’s request to trial is insufficient to render his election untimely. Id. at
1052–53. Even where a defendant’s pretrial conduct has “already caused
substantial delay,” a defendant’s Faretta waiver may not be denied absent inquiry
into the defendant’s intent. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982).
Pulley’s conflict with his trial counsel came to a head only four days before
he requested self-representation. On this record, and absent any findings by the
district court, we cannot conclude that Pulley’s request was made for the purpose
of delay. See Farias, 618 F.3d at 1053 (observing that although the defendant
could have requested self-representation earlier, counsel’s recent failure to file
certain motions and poor communications with the defendant were consistent with
good faith invocation of Faretta right). The district court’s erroneous denial of
Pulley’s request was structural error and requires reversal. Id. at 1055.
2. The Speedy Trial Act, 18 U.S.C. §§ 3161–3174, does not require dismissal
of Pulley’s indictment. Pulley does not challenge the factual bases for the repeated
ends-of-justice continuances granted pursuant to § 3161(h)(7), and that subsection
does not require the district court to recite the specific language Pulley advocates.
See United States v. Medina, 524 F.3d 974, 986 (9th Cir. 2008) (“[D]iscussion of
the statutory factors is adequate to support a continuance that serves the ends of
justice . . . .”).
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3. Pulley’s Commerce Clause challenge is foreclosed by United States v.
Davis, 242 F.3d 1162, 1162–63 (9th Cir. 2001) (per curiam), which rejected a
facial Commerce Clause challenge to § 922(g)(1); see also United States v. Hanna,
55 F.3d 1456, 1462 (9th Cir. 1995) (rejecting as-applied challenge to § 922(g)(1)
where firearm traveled interstate). The two guns identified in the indictment had
traveled between states. That suffices “to establish a past connection between the
gun[s] and interstate commerce. Therefore, § 922(g)(1) is not unconstitutional as
applied to” Pulley. Hanna, 55 F.3d at 1462 (citation omitted).
REVERSED AND REMANDED.
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