David Abara v. Jack Palmer ( 2019 )


Menu:
  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                        SEP 11 2019
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DAVID ABARA,                                    No.    17-17103
    Petitioner-Appellant,           D.C. No.
    3:10-cv-00688-HDM-VPC
    v.
    JACK PALMER; ATTORNEY GENERAL                   MEMORANDUM*
    FOR THE STATE OF NEVADA,
    Respondents-Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Howard D. McKibben, District Judge, Presiding
    Submitted September 9, 2019**
    San Francisco, California
    Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
    David Abara appeals the district court’s denial of his 28 U.S.C. § 2254
    habeas corpus petition challenging the Nevada Supreme Court’s determination that
    his waiver of right to counsel was valid under Faretta v. California, 
    422 U.S. 806
    ,
    *
    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).
    835 (1975). We affirm.
    We review de novo the district court’s decision to grant or deny a petition
    for habeas corpus. Dows v. Wood, 
    211 F.3d 480
    , 484 (9th Cir. 2000). We may
    grant habeas relief to a state prisoner “on a claim ‘adjudicated on the merits’ in
    state court only if the decision ‘was contrary to, or involved an unreasonable
    application of, clearly established Federal law, as determined by the Supreme
    Court of the United States.’” Waddington v. Sarausad, 
    555 U.S. 179
    , 190 (2009)
    (quoting 28 U.S.C. § 2254(d)(1)). Federal habeas relief is unavailable so long as
    ‘“fairminded jurists could disagree’ on the correctness of the state court’s
    decision.” Harrington v. Richter, 
    562 U.S. 86
    , 101 (2011) (quoting Yarborough v.
    Alvarado, 
    541 U.S. 652
    , 664 (2004)).
    Abara argues that the Nevada Supreme Court unreasonably applied Faretta
    to conclude that he had voluntarily chosen to represent himself because Abara’s
    only other option besides self-representation was representation by counsel with
    whom he had an irreconcilable conflict. We disagree.
    Abara’s contention turns on whether he had an irreconcilable conflict with
    his counsel. To prove an actual conflict, Abara must show that there was “an
    incompatibility between . . . the lawyer’s own private interest and those of the
    client.” Plumlee v. Masto, 
    512 F.3d 1204
    , 1210 (9th Cir. 2008) (en banc).
    “[T]here is no Sixth Amendment right to ‘a meaningful relationship between an
    2
    accused and his counsel,” 
    id. at 1210-11
    (quoting Morris v. Slappy, 
    461 U.S. 1
    , 14
    (1983)), so a showing that the conflict was based in the defendant’s having
    “refuse[d] to cooperate because of dislike or distrust” without any evidence of
    other actual conflicts of interest is insufficient to prove a Sixth Amendment
    violation. 
    Id. at 1211.
    Here, the state trial court conducted a lengthy inquiry into the alleged
    conflicts before trial. Abara’s complaint that his lawyer had failed to communicate
    with him was undercut when he did not dispute his lawyer’s statements that they
    were in communication, and his complaint generally appeared to be based
    primarily on frustration with case delays and a competency evaluation conducted
    against his will, neither of which demonstrate an irreconcilable conflict. Abara’s
    other assertions that his lawyer had previously worked as a prosecutor and worked
    as an independent contractor with a large law group that Abara had sued as part of
    a class action similarly failed to identify a specific “incompatibility.” As a result,
    the Nevada Supreme Court did not unreasonably apply clearly established law to
    conclude that Abara’s decision to represent himself was voluntary.
    Abara separately contends that the Nevada Supreme Court unreasonably
    erred in concluding that Abara had voluntarily, knowingly, and intelligently
    waived his right to counsel to represent himself because Abara was not competent
    to do so under Indiana v. Edwards, 
    554 U.S. 164
    (2008). Even if Edwards applied
    3
    retroactively to cases like Abara’s whose direct appeal had concluded by the time it
    was decided (which the Supreme Court has not held it does), Abara misstates
    Edwards’s holding. The Court held in Edwards that “the Constitution permits
    States to insist upon representation by counsel for those competent enough to stand
    trial . . . but who still suffer from severe mental illness to the point where they are
    not competent to conduct trial proceedings by 
    themselves.” 554 U.S. at 178
    (emphasis added). Edwards did not take away a state’s ability to allow self-
    representation so long as the defendant is competent to stand trial. The Supreme
    Court’s decision in Edwards therefore does not render erroneous the Nevada
    Supreme Court’s determination that Abara could lawfully represent himself.
    AFFIRMED.
    4