William Houston v. D. Sisto , 405 F. App'x 195 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
WILLIAM HOUSTON, No. 08-17711
Petitioner - Appellant, D.C. No. 2:06-cv-01980-FCD-
CHS
v.
D. K. SISTO, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted November 29, 2010 **
San Francisco, California
Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.
Habeas petitioner William Houston challenges his California state
conviction of two counts of robbery. He contends that he was denied his Sixth
Amendment right to self-representation. The state court of appeal’s finding that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
his request was untimely and its affirmance of the trial court’s denial of the request
for self-representation did not violate any clearly established Supreme Court
precedent. 28 U.S.C. § 2254(d)(1). The Supreme Court in Faretta v. California,
422 U.S. 806 (1975), confirmed that the right to represent oneself is embedded in
the Sixth Amendment, id. at 819, but the request for self-representation must be
unequivocal and timely, id. at 835–36. A request for self-representation must not
be a tactic to secure delay. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985).
The record supports the state court’s finding that petitioner’s request was
intended to cause delay. Petitioner had withdrawn his earlier request for self-
representation, and renewed it only on the day set for trial. See Fritz v. Spalding,
682 F.2d 782, 784–85 (9th Cir. 1982) (stating that in deciding whether a Faretta
motion was made for the purpose of delay, courts must consider the events
preceding the motion to determine whether defendant could reasonably be
expected to have made the motion earlier). Here, petitioner could, and did, make a
request earlier. The second request was appropriately viewed as a delaying tactic.
AFFIRMED.
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