Robinson v. Kramer ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORENZO ROBINSON, 
Petitioner-Appellant, No. 07-55611
v.
 D.C. No.
CV-03-00818-ABC
KRAMER, also known as People of
the State of California, OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief District Judge, Presiding
Argued and Submitted
November 2, 2009—Pasadena, California
Filed December 9, 2009
Before: Ronald M. Gould and Carlos T. Bea, Circuit Judges,
and Donald W. Molloy,* District Judge.
Opinion by Judge Bea
*The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
16199
ROBINSON v. KRAMER 16201
COUNSEL
Jan B. Norman, Los Angeles, California, for the petition-
er-appellant.
16202 ROBINSON v. KRAMER
Blythe J. Leszkay and Colleen Mary Tiedemann, Deputy
Attorneys General, Los Angeles, California, for the respon-
dent-appellee.
OPINION
BEA, Circuit Judge:
Lorenzo Robinson, a California state prisoner, was con-
victed in California state court of one count of possession for
sale of cocaine base, a violation of California Health & Safety
Code Section 11351.5.1 He now appeals the district court’s
denial of his petition under 28 U.S.C. § 2254 for a writ of
habeas corpus on his claim that his motion to substitute coun-
sel was improperly denied. We have jurisdiction to hear Rob-
inson’s appeal pursuant to 28 U.S.C. §§ 1291 and 2253(c).
Because Robinson never raised a claim for unconstitutional
denial of his right to self-representation—i.e. to proceed with-
out a lawyer—on direct appeal in the state courts, nor in his
state habeas petition, nor in his district court habeas petition,
we hold that he cannot now raise such a claim, and we affirm
the district court’s denial of habeas relief.
1
The jury also convicted Robinson of possession of a controlled sub-
stance (cocaine), but the California Court of Appeal reversed that convic-
tion, finding it a lesser-included offense of the charge of possession of
cocaine base for sale. People v. Robinson, 2002 WL 31117068, at *3-*4
(Cal. Ct. App. Sept. 25, 2002) (citing People v. Ortega, 968 P.2d 48,
50-51 (Cal. 1998) (overruled on other grounds in People v. Reed, 137 P.3d
184, 186-88 (Cal. 2006))). See also Cal. Penal Code § 654(a) (“An act or
omission that is punishable in different ways by different provisions of
law shall be punished under the provision that provides for the longest
potential term of imprisonment, but in no case shall the act or omission
be punished under more than one provision.”).
ROBINSON v. KRAMER 16203
I. Background
At trial, Robinson’s counsel said, “my client wants to ter-
minate my representation; wants to represent himself.” The
trial court replied, “Well, okay. We’ll bring [Robinson] out.
That’s not going to happen,” and proceeded as though Robin-
son had made a Marsden motion to substitute counsel.2 After
Robinson was brought back into the courtroom, the trial court
held a hearing on the motion to substitute counsel, and denied
it. The judge, however, never conducted a hearing on Robin-
son’s request to represent himself.
After the jury convicted Robinson, he appealed to the Cali-
fornia Court of Appeal, then sought review by the California
Supreme Court. In those appeals, Robinson’s only federal
constitutional claim was that his “third strike” sentence of 25
years to life for possession of less than one-hundred dollars
worth of cocaine amounted to cruel and unusual punishment
under the Eighth Amendment.3 Before the district court, Rob-
inson, then pro se, raised for the first time a claim related to
the trial court’s response to Robinson’s counsel’s statement
that Robinson wanted to terminate his counsel’s representa-
tion and represent himself (errors in original):
the abuse of authority upon my person by Los Ange-
les Trial Court by pursuing prosecution inspite my
objection pur two Marsden Motions[4] and efforts to
2
The term “Marsden motion” comes from People v. Marsden, 465 P.2d
44, 47-48 (Cal. 1970), a California Supreme Court case which held that,
as part of a criminal defendant’s right to effective assistance of counsel
under the Sixth Amendment, a trial judge must permit a defendant request-
ing substitute counsel the opportunity to present his reasons for the
request, i.e. evidence and argument to establish that he is receiving inef-
fective assistance of counsel.
3
The California Court of Appeal and the California Supreme Court
rejected this claim; Robinson does not renew it here.
4
In the district court and before the California Supreme Court, Robinson
claimed that he made two Marsden motions. However, the trial transcript
16204 ROBINSON v. KRAMER
get my attorney to incert violation of the law to the
Court. And my telling the court that my attorney
asked me to lie as to using drugs.
The district court found Robinson’s claim that he was improp-
erly denied his Marsden motions was unexhausted in Califor-
nia state courts. That court then stayed Robinson’s petition so
that Robinson could, as 28 U.S.C. § 2254 requires, exhaust
the claim before the California courts.
Robinson then raised his Marsden claim for the first time
before a California court. Robinson’s pro se habeas petition
to the California Supreme Court claimed: “Ground [for
habeas relief]: . . . (Abuse of Authority) when the trial court
failed to grant two Marsden motions.” Without comment, the
California Supreme Court denied habeas relief.
Robinson returned to the district court and revived his
claim, stated exactly as related above. The district court inter-
preted Robinson’s renewed claim as a Marsden claim, and
denied Robinson’s requested habeas relief based on it.5 The
district court found that the California Supreme Court did not
unreasonably apply U.S. Supreme Court precedent in denying
Robinson’s “unconstitutional denial of two Marsden motions”
claim because there was no evidence that Robinson’s counsel
inadequately represented Robinson or that there had been an
irrevocable breakdown in communication between Robinson
and his counsel.6 Robinson timely sought and received a cer-
shows only one such motion. The district court nevertheless expressly
assumed Robinson made another Marsden motion at his sentencing in
October 2001, but pointed out that the record does not reflect such a
motion was ever made. We need not decide how many Marsden motions
Robinson made because, whether it was one or many, for Robinson to
have pleaded below about the denial of those motion(s) did not raise a
claim that he was unconstitutionally denied the right to represent himself.
5
The district court also denied Robinson’s claim for habeas relief based
on other constitutional claims not at issue here.
6
Under The Antiterrorism and Effective Death Penalty Act of 1996,
Pub. L. No. 104-132, 110 Stat. 1214, (“AEDPA”), a federal court may
ROBINSON v. KRAMER 16205
tificate of appealabilty from this court, and timely filed his
appeal from the district court’s denial of habeas relief.
In this appeal, Robinson seeks habeas relief on the ground
that in failing to conduct a hearing on Robinson’s request to
represent himself, and failing to grant such request, the trial
judge denied him his Sixth Amendment right to represent
himself; this is known as a Faretta claim. See Faretta v. Cali-
fornia, 422 U.S. 806, 819 (1975) (holding that a defendant in
a state criminal trial has a Sixth Amendment right to represent
himself when he voluntarily and intelligently elects to do so).
Robinson did not raise a claim for unconstitutional denial of
his right to self-representation before the California courts on
direct appeal, in his state habeas petitions, or in his district
court habeas petition. In those appeals, Robinson never cited
Faretta, nor mentioned self-representation in any manner,
shape, or form. Rather, Robinson raised only Marsden claims,
and did not raise a Faretta claim until after the district court
had entered its judgment denying his habeas petition.
II. Analysis
[1] Robinson urges us to hear his Faretta claim despite his
failure to raise it below because he contends his claims under
Marsden encompass it. We do not agree. At the trial level,
Faretta and Marsden requests are as distinct as would be a
request to be allowed to drive a car from a request for a driver
to drive it. On appeal, a claim a trial court unconstitutionally
denied a defendant’s Marsden motion is in essence a claim
that the trial court failed to recognize that the defendant’s
complaints as to his counsel were such that, if true, counsel’s
reverse a state court habeas determination as to which the underlying facts
are uncontested only if the decision was either “contrary to, or involved
an unreasonable application of, clearly established Federal law, as deter-
mined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
16206 ROBINSON v. KRAMER
performance fell below the Sixth Amendment standard for
effective assistance of counsel. See Schell v. Witek, 218 F.3d
1017, 1021 (9th Cir. 2000) (en banc).
[2] In contrast, a state trial court’s denial of a defendant’s
knowing, voluntary, and intelligent request to represent him-
self under Faretta can give rise to a constitutional claim pro-
vided that the defendant’s request was unequivocal, timely,
and not made for the purpose of delay. Stenson v. Lambert,
504 F.3d 873, 882 (9th Cir. 2007). Counsel’s effectiveness, or
lack thereof, is not part of the inquiry at all. A defendant who
chooses to represent himself gives up the benefits associated
with the Sixth Amendment right to counsel. See Faretta, 422
U.S. at 833-36 (“[A] defendant who elects to represent him-
self cannot thereafter complain that the quality of his own
defense amounted to a denial of effective assistance of coun-
sel.”); see also Adams v. Carroll, 875 F.2d 1441, 1444 (9th
Cir. 1989) (pre-AEDPA case explaining that “the requirement
that a request for self-representation be unequivocal . . .
serves an institutional purpose: [i]t prevents a defendant from
taking advantage of the mutual exclusivity of the rights to
counsel and self-representation.”) (emphasis added). There-
fore, we cannot construe Robinson’s Marsden claim as a
Faretta claim.
[3] Robinson points out that the trial transcript shows that
at trial, Robinson’s counsel said Robinson wanted to represent
himself. On that basis, Robinson urges us to find he presented
a Faretta claim in his habeas petition to the California
Supreme Court, regardless what he wrote in his actual peti-
tion. Even leaving aside that on the record before us it appears
that Robinson’s state petition did not contain the trial tran-
script, we cannot hold Robinson properly raised a Faretta
claim based only on the trial transcript. See Baldwin v. Reese,
541 U.S. 27, 32 (2004) (explaining that under AEDPA’s
exhaustion requirement, 28 U.S.C. § 2254(b)(1), a state pris-
oner ordinarily has not exhausted his claim if “[the state]
court must read beyond a petition or a brief (or a similar docu-
ROBINSON v. KRAMER 16207
ment) that does not alert it to the presence of a federal claim
in order to find material . . . that does so”).
[4] We also decline to consider Robinson’s Faretta claim
because he did not raise it in his petition filed in the district
court. “Habeas claims that are not raised before the district
court in the petition are not cognizable on appeal.” Cacoperdo
v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994). Robinson
has not shown that he meets any of the narrow exceptions to
the rule that this court does not hear claims not raised in a dis-
trict court petition. See Taniguchi v. Schultz, 303 F.3d 950,
959 (9th Cir. 2002).7 First, Robinson has offered no explana-
tion for his failure to raise the claim at the district court. We
do not take the mere fact that Robinson was pro se to be an
exceptional circumstance that explains his failure to raise the
issue in the district court. See Felder v. Johnson, 204 F.3d
168, 171 (5th Cir. 2000) (holding that “proceeding pro se is
not a rare and exceptional circumstance because it is typical
of those bringing a § 2254 claim”) (internal quotation omit-
ted); cf. Hughes v. Idaho State Bd. of Corr., 800 F.2d 905,
907-09 (9th Cir. 1986) (explaining that new claims raised in
subsequent federal habeas petitions are procedurally barred as
an abuse of the writ unless the petitioner can show either a
fundamental miscarriage of justice or “cause and prejudice”
for his failure to raise the issue earlier, holding that this rule
applies to pro se habeas petitioners, and finding that the illit-
eracy of the pro se habeas petitioner in that case did not con-
stitute such cause). Second, Robinson has not shown the law
changed in such a manner that he could not have made his
Faretta claim earlier. Quite the opposite: the right to self-
representation stated in Faretta has been well-established for
7
In Taniguchi, we explained that this court generally does not hear
claims not raised before the district court unless: (1) there exist excep-
tional circumstances explaining the failure to raise the issue below, (2) a
change in the law gives rise to the new issue while the appeal is pending,
or (3) the new claim is purely one of law that the opposing party would
suffer no prejudice as a result of the failure to raise the issue below. Id.16208 ROBINSON v. KRAMER
over three decades. See Faretta, 422 U.S. at 806; Indiana v.
Edwards, 128 S. Ct. 2379, 2388 (2008) (expressly declining
to overrule Faretta).
[5] As to the third exception, Robinson’s claim under
Faretta does not present a pure question of law such that the
government would suffer no prejudice as a result of his failure
to raise the claim below. For a reviewing court to decide
whether a trial court violated a defendant’s constitutional
rights under Faretta involves the fact-specific inquiry whether
the defendant met the requirements of a constitutional claim
under Faretta. Namely, the reviewing court must consider
whether the defendant’s assertion at trial of his right to self-
representation was timely, unequivocal, and not made for pur-
poses of delay, whether the defendant waived his right to
counsel knowingly and intelligently, Stenson, 504 F.3d at 882,
and was mentally competent to do so, Indiana v. Edwards,
128 S. Ct. at 2385-86. See e.g., United States v. Kienenberger,
13 F.3d 1354, 1356 (9th Cir. 1994) (expressly considering
issue of whether Faretta claim was based on an unequivocal
request by the defendant as a question of fact). Here, the gov-
ernment did not have the chance to respond to Robinson’s
Faretta claim or challenge his having met the requirements of
a valid Faretta claim, nor has it briefed the issue here. The
government would be prejudiced were we now to hear it.
[6] Finally, Robinson claimed in his district court and state
habeas petitions that the trial court unconstitutionally denied
his motion for substitution of counsel. Robinson does not
renew that claim here; it is waived. See Jones v. Wood, 207
F.3d 557, 562 n.2 (9th Cir. 2000).
AFFIRMED.