Tremain Campbell v. Tim Virga ( 2015 )

FILED
NOT FOR PUBLICATION
AUG 21 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TREMAIN DION CAMPBELL, No. 14-56756
Petitioner - Appellee, D.C. No. 2:10-cv-01698-JGB-JCG
v.
MEMORANDUM*
TIM V. VIRGA, Warden,
Respondent - Appellant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted July 6, 2015
Pasadena, California
Before: FERNANDEZ and CLIFTON, Circuit Judges and MUELLER,** District
Judge.
Warden Virga appeals the judgment of the district court granting a writ of
habeas corpus for petitioner Tremain Dion Campbell. We reverse.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kimberly J. Mueller, District Judge for the U.S.
District Court for the Eastern District of California, sitting by designation.
Campbell contends that AEDPA deference should not apply here and that
we should review de novo because the last reasoned decision by the California
Supreme Court, rejecting his petition for relief, was not a decision on the merits. It,
rather, was based on a procedural failure that the warden has not cited and has thus
waived in this federal proceeding. The warden disagrees. We need not resolve that
issue as Campbell’s claim fails even under de novo review.
When a defendant seeks to represent himself at trial, he must “knowingly
and intelligently” waive the right to counsel, aware “of the dangers and
disadvantages of self-representation.” Faretta v. California, 422 U.S. 806, 835
(1975). A trial court need not follow an exact script, but the defendant must be
informed of “‘1) the nature of the charges against him, 2) the possible penalties,
and 3) the dangers and disadvantages of self-representation.’” United States v.
Hantzis, 625 F.3d 575, 579–80 (9th Cir. 2010) (quoting United States v. Erskine,
355 F.3d 1161, 1167 (9th Cir. 2004)).
There is no dispute that Campbell was informed of both the nature of the
charges and the dangers of self-representation. Campbell argues, however, that he
was not properly informed of the range of possible penalties he faced. The trial
court told him, based on information received from the prosecutor, that he faced 50
years to life, emphasizing that Campbell could be spending the rest of his life in
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prison. Following his conviction, Campbell was actually sentenced to 70 years to
life. He contends that the correct statutory maximum sentence at the time of the
dialogue was 96 years to life. Thus, he argues that the trial court misstated the
lower end of the potential maximum punishment range.
The Supreme Court has established that a defendant must have a “general
understanding” of the possible penalties before waiving counsel. Arrendondo v.
Neven, 763 F.3d 1122, 1130 (9th Cir. 2014). A precise understanding of the exact
range of potential sentences has not been required, however. Under the
circumstances here, we conclude that Campbell was sufficiently informed of the
possible penalties to make his waiver of the right to counsel knowing and
intelligent. He was informed of the risk when the trial court bluntly told him that
he was “looking at [the] whole rest of [his] life in state prison.” That is what he
needed to know to make a knowing decision to waive counsel, and he made that
decision intelligently, if not wisely, in possession of that knowledge.
This case is unlike United States v. Forrester, 512 F.3d 500, 505 (9th Cir.
2007), where the trial court misinformed the defendant of both the potential
maximum and a mandatory minimum. It is also unlike United States v. Erskine,
355 F.3d 1161, 1164–65 (9th Cir. 2004), where the defendant stated that he
thought the maximum sentence was one year when in actuality it was five years.
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In contrast, Campbell knew he was facing the possibility of life in prison, and the
sentence imposed on him after he was convicted was within the range described to
him at the time he waived his right to counsel. He had the information needed to
make his decision “with eyes open.” Erskine, 355 F.3d at 1169 (citing Faretta, 422
U.S. at 835).
We reverse the district court’s grant of the writ.
REVERSED.
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