Bradley v. Henry , 510 F.3d 1093 ( 2007 )

CLIFTON, Circuit Judge,

with whom Circuit Judges SCHROEDER, WILLIAM A. FLETCHER, and BERZON join,

concurring in the judgment:

I concur in the judgment reversing the denial of Petitioner Nicole Bradley’s petition for habeas corpus under 28 U.S.C. § 2254. I write separately because my conclusion is based specifically upon the denial by the trial court of Bradley’s January 1999 motion, filed more than six weeks before the then-scheduled trial date, to substitute retained counsel Jonathan Jordan for the attorney previously appointed by the court to represent her, Chris Andri-an. I conclude that the subsequent decision by the California Court of Appeal to affirm Bradley’s conviction despite that denial of her motion to substitute was an unreasonable application of established Supreme Court precedent, even under the deferential standard applicable to our review of a state court conviction. Judge Noonan’s opinion also rests on two other decisions by the trial court identified as unreasonable denials of the right to counsel, specifically in March 1998 when prior retained counsel withdrew and was replaced by appointed counsel Andrian, and in October 1998 when the trial court denied Bradley’s motion to replace Andrian. Although those events color the circumstances faced in January 1999 when the motion to substitute Jordan for Andrian was denied, I do not find it necessary to conclude that the earlier decisions by the trial court were improper.

I

At the time Bradley filed her motion for substitution, the Supreme Court had unambiguously established that the Sixth Amendment right to counsel included the right to retain the counsel of one’s choice. Caplin & Drysdale, Chartered v. United States, 491 U.S. 617, 624, 109 S.Ct. 2646, 105 L.Ed.2d 528 (1989) (noting that, although an indigent defendant is not entitled to have the attorney of his choice appointed, “the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without funds.”); see United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006) (“We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him.”) (citing Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988); cf. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice.”)).

The right to select counsel is not unlimited, to be sure. The Supreme Court has established certain limitations on “the right to select and be represented by one’s preferred attorney.” Wheat, 486 U.S. at 159, 108 S.Ct. 1692. It held that a defendant could not insist on representation from a particular attorney unless (1) the defendant could afford the attorney’s fees or the attorney agreed to represent the defendant without pay, (2) the attorney was a member of the bar, (3) the attorney was willing to represent the defendant, and (4) the attorney did not have a relationship with an opposing party. Id. In addition, the Court established that where the government makes “a showing of a serious potential” for a conflict of interest, the trial court has wide latitude in determining whether the defendant may waive the conflict under the circumstances and facts of the individual case. Id. at 162-164, 108 S.Ct. 1692. Furthermore, though it was not discussed by the Court in Wheat or in any other decision prior to the events in this case, I agree that the trial court is entitled to manage its docket and may deny a motion to substitute retained counsel if there is a substantial risk that the substitution will result in an undue delay of the proceedings.

II

On January 7, 1999, forty-six days before her scheduled trial date, Bradley moved to substitute a retained attorney, Jordan, for the lawyer the court had previously appointed for her, Andrian. Her motion included a declaration from Jordan, her counsel of choice, in which he stated that Bradley’s family had first contacted him regarding representing Bradley in March 1998, ten months before, but that he had been unable to take the case due to his other commitments at the time. He declared that he had since discussed the case with an investigator on the case and with Bradley’s family, and he had been able over the “ensuing months” to familiarize himself with its key issues. Jordan concluded: “My grasp of the case is of a sufficient nature such that with the time remaining before trial, I see no reason not to be ready at the time of trial.”

The trial court conducted a hearing on Bradley’s substitution motion shortly after its filing. The court’s chief concern appeared to be over the delay that a substitution might cause in light of the case’s history. Jordan explained that his substitution was not part of a delaying tactic or a procedural hindrance that would disrupt “the ordinary process of the proceedings.” Rather, he stated that “[a]s the Court is aware from my declarations, that process is not in danger from my standpoint today. I have told the Court that I am going to be ready for trial on the 22nd of February. I don’t see that changing at this point.” After discussing the relevant cases, in which substitutions were jeopardized because of the delays they would cause, Jordan reiterated, “I am here to represent that that delay that this Court may be concerned with is not present in this case.”

During the hearing, the trial court also expressed apprehension over Bradley’s potential inability to pay her counsel, which might result in a future additional substitution. The court asked Bradley, “do you personally have the funds to pay for counsel to represent you now and through trial ... ?” She responded, “I don’t know.” Jordan then interjected, “if I may interrupt for a second, does the Court want to go into the financial arrangements to satisfy itself that, based upon its prior experience, counsel that is formerly — ”. Before he could finish, the trial court itself interrupted, stating, “I don’t really want to do that.” It did, however, permit Jordan to briefly address what the court stated was its “feeling that if counsel isn’t paid and hired by the defendant, counsel is and historically has been in this case susceptible to the ongoing method of substitution .... ” Jordan replied, “Taking into account my comment that there was no intention to delay in this case, I encompassed in that statement the concern about the financial relationship between myself and either Ms. Bradley or her family, and I can assure the Court that that is not a concern at this point.” He added, “it would be disingenuous for me to come in a month and a half before trial just to leave in three weeks.... I don’t think that would work with the Court.”

Following this discussion, the trial court concluded that “the ongoing method of substitution has delayed this case for so long ... there is a significant and I do believe determinative danger of delay in substituting counsel at this point, so the motion for substitution of counsel is denied.” The California Court of Appeal subsequently affirmed the decision, citing the reasons the trial court discussed as well as noting that Jordan’s assurances that he was prepared to begin the trial on time were equivocal and that Bradley might delay the trial by suing Jordan in order to manufacture a conflict.

It is undisputed that three of the five reasons the Supreme Court articulated in Wheat for denying a criminal defendant the right to the counsel of her choice were not applicable: Jordan was a member of the California bar, was willing to represent Bradley, and had no relationship with the government or other identified ethical conflict. The critical question is therefore whether the denial of Bradley’s motion was justified because (1) she could not afford her attorney’s fees and her attorney had not agreed to represent her without pay, (2) there was a serious potential for an unwaivable conflict of interest, or (3) the substitution would delay the start of Bradley’s trial.

A. Attorney’s Fees

The principal focus of the limited consideration given by the trial court at the hearing on the motion to substitute was on the financial arrangement with Jordan. Given that Bradley did not have substantial assets of her own and had depended upon her father for financial support, and that Bradley’s prior retained counsel withdrew for alleged non-payment, the trial court had reason for concern. It was not inappropriate for the trial court to inquire into the possibility that Jordan might himself subsequently move to withdraw for financial reasons, forcing further delay in the trial.

The court’s concern does not justify the court’s failure to inquire seriously into the subject, however. A review of the record makes it clear that the trial court failed to conduct an inquiry sufficient to justify its denial of Bradley’s Sixth Amendment right to retain the counsel of her choice. Notably, the court never asked whether Jordan was prepared to represent Bradley without being paid more than he had already been paid. It did not ask whether there was a secure source of funding for any future payments that would be required. Nor did the court appear to consider the fact that the court had the power to deny any future motion to withdraw which Jordan might seek to file. The trial court could have told Jordan that he would be bound by his commitment to see the case through and asked Jordan whether he was prepared to proceed on those terms. But that question was not asked, and a negative answer from Jordan cannot be assumed. Having failed to explore the subject seriously, let alone to make a record demonstrating a realistic possibility that financial concerns would lead Jordan to move to withdraw in the future, it was unreasonable for the court simply to deny Bradley her right to retained counsel of her choice instead.

The paucity of serious inquiry makes apparent that the trial court had already concluded that it was not going to permit the substitution. Moreover, in the absence of such an inquiry, Jordan’s assertion that there were no financial concerns that would interfere with his representation of Bradley was undisputed. The record before the court provided insufficient basis for a finding that Bradley could not afford her chosen counsel and for the resulting denial of Bradley’s right to retained counsel of her choice.

B. Conflict of Interest

The California Court of Appeal concluded that, even if Jordan “had the best of intentions” and “was adequately compensated,” Bradley “could attempt to manipulate the system by filing a lawsuit against Jordan, creating a conflict that would preclude his continued representation of her.” As discussed above, the existence of a conflict of interest may limit a defendant’s right to retain a particular attorney. That potential exists in every single case, however. That theoretical possibility does not mean that the right to retained counsel of choice can simply be waved away.

The Supreme Court has held that to deny a criminal defendant the right to the counsel of her choice, the government must make “a showing of a serious potential for conflict.” Wheat, 486 U.S. at 164, 108 S.Ct. 1692. In addition, the Court has held that “[t]he evaluation of the facts and circumstances of each case under this standard must be left primarily to the informed judgment of the trial court,” which must “be allowed substantial latitude in refusing waivers of conflicts of interest.” Id. at 163-64, 108 S.Ct. 1692.

Not only is there nothing in the record to demonstrate that the government made any showing whatsoever before the trial court on the issue of a conflict of interest, the trial court did not even discuss the potential for such a conflict to arise. Nor did the court determine that, if a conflict were to arise here, it would be unwaivable. Though it is true that Bradley had her differences with appointed counsel Andri-an, who had been appointed to represent her over her objections, there is nothing that supports speculation that she would have any such differences with Jordan, the attorney she affirmatively sought. As the issue was neither raised before nor addressed by the trial court, the California Court of Appeal’s conclusion that the potential for a conflict of interest supported the trial court’s denial of Bradley’s motion for substitution was contrary to clearly established Supreme Court precedent.

C. Potential for Delay

Both the trial court and the Court of Appeal held that the potential delay that Jordan’s substitution might engender was sufficient to warrant abridging Bradley’s Sixth Amendment rights. Although there are undeniably circumstances under which the demands of a court’s calendar and the need to bring a case to trial may constitute compelling justifications for denying a criminal defendant her right to retain the counsel of her choice, such that recognition of this additional limitation on the Sixth Amendment does not constitute an unreasonable extension of applicable Supreme Court precedent, those circumstances were not present here.

In this case there was, at most, a potential risk that granting Bradley’s motion might lead to future circumstances under which her new attorney might request a continuance. There was no evidence whatsoever that his representation would inevitably cause any actual delay of Bradley’s trial, or even that there was any substantial risk of delay.

The trial court cited Bradley’s prior substitutions as causing “interminable delays.” As Judge Noonan’s opinion demonstrates, however, only a limited portion of the delay was attributable to Bradley. More importantly, the proposed new attorney, Jordan, was aware of the scheduled trial date and sought no additional time to prepare. To the contrary, Jordan submitted a sworn declaration in which he attested that he would be ready to begin on the trial date then scheduled. Jordan was also clear during the hearing that he was not requesting a continuance.

To justify its decision the California Court of Appeal seized on potentially equivocal language in Jordan’s statements. It noted that he attested only that he saw “no reason not to be ready at the time of trial” and that he did not “see that changing at this point.” That Jordan failed to use the firmest and most direct possible terms to express himself does not support the Court of Appeal’s speculation that he would later seek a continuance. Lawyers are trained to be cautious. It is not a surprise that Jordan might not want to waive all contingencies unless pressed to do so. For all he knew, he might have a heart attack or be run over by a bus before the trial date. But no fair reading of Jordan’s declaration or his statements at the hearing could support a conclusion that he was laying the groundwork for a future request to continue the trial, or that he had any reason to expect that the trial court would be receptive to such a request.

Even assuming that Jordan might have later moved for such a continuance, the trial court had the power to deny the motion. A denial of such a motion would likely have been sustained under these circumstances, especially if Jordan had been put on notice of the court’s intent to avoid further delay. As the Supreme Court held in Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983), trial courts “necessarily require a great deal of latitude in scheduling trials” and are therefore accorded broad discretion on matters of continuances. In sharp contrast to the limited exceptions to the right to counsel of one’s choice, “only an unreasoning and arbitrary ‘insistence upon expeditiousness in the face of a justifiable request for delay’ violates the right to the assistance of counsel.” Id. at 11-12, 103 S.Ct. 1610 (quoting Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964)). If Jordan had responded to the court in an equivocal fashion after that, perhaps the denial of Bradley’s constitutional right to retain the counsel of her choice would have rested on a stronger foundation. But it was unreasonable for the court simply to deny the substitution motion — and thus to deny Bradley’s exercise of her right to retained counsel of choice — out of fear that something might happen to delay the trial.

The California Court of Appeal reasoned that Jordan’s assurances that he would be prepared were unpersuasive because he had yet to review the twelve boxes of materials Bradley’s appointed counsel had accumulated. Jordan had already spent hours meeting with Bradley’s appointed counsel, however, and he had discussed the case with Bradley’s family and the investigator. Bradley also filed her motion for substitution forty-six days, or six and a half weeks, before her trial date. Jordan told the trial court that this was a sufficient amount of time to properly prepare, and the trial court did not question or dispute this representation. Not surprisingly, the Warden has not pointed to a single case in any court where a motion to substitute counsel was denied so far in advance of trial because of the potential for delay.

Trial courts have a number of tools at their disposal to ensure a fair trial and the integrity of the process without offending the Sixth Amendment. As we previously held in United States v. Lillie, a court may “inquire into the new counsel’s preparedness, and to condition the granting of the motion on defendant’s (and new counsel’s) willingness to continue with the existing schedule.” United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir.1993) (applying Wheat, 486 U.S. at 159, 108 S.Ct. 1692, and holding that a district court committed reversible error when it denied a motion for substitution filed the morning of trial), overruled in part on other grounds in United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir.1999). It may also “be justified in obtaining the defendant’s waiver of any ineffective assistance of counsel claim growing from the late substitution.” Id. (citing United States v. McClendon, 782 F.2d 785, 786 (9th Cir.1986)). In this case, rather than exercise these options, the trial court simply denied Bradley’s motion for substitution. It did so despite Jordan’s undisputed representation, well in advance of trial, that he was prepared to proceed without delay. As the trial court and California Court of Appeal lacked any valid justification for depriving Bradley of her Sixth Amendment right to the counsel of her choice, their adjudication of her motion was contrary to clearly established Supreme Court precedent.

Ill

The Supreme Court recently held that “erroneous deprivation of the right to counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as ‘structural error.’ ” Gonzalez-Lopez, 126 S.Ct. at 2564 (internal quotation omitted). It reasoned that “[hjarmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” Id. at 2565.

The Warden contends that Gonzalez-Lopez is inapplicable because it was not decided until after the relevant state court decisions in this ease. That fact is of no consequence, however, as Gonzalez-Lopez is not being applied to evaluate whether the state decisions were erroneous. See 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 390, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The California Court of Appeal found no constitutional violation and therefore never reached the issue of whether the violation was subject to review for harmlessness. Accordingly, Gonzalez-Lopez has no bearing on whether its decision was erroneous. Rather, Gonzalez-Lopez guides us in determining the consequences of the erroneous state decision. In this case, it requires reversal of Bradley’s conviction.

I join the judgment that the district court’s denial of Bradley’s petition for writ of habeas corpus must be reversed.