Armis Arrendondo v. Dwight Neven

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMIS ARRENDONDO, No. 11-15581
Petitioner-Appellant,
D.C. No.
v. 2:07-cv-01312-
JCM-GWF
DWIGHT NEVEN, Warden;
ATTORNEY GENERAL OF THE STATE
OF NEVADA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
July 8, 2013—San Francisco, California
Filed August 18, 2014
Before: Ferdinand F. Fernandez, Richard A. Paez,
and Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon;
Concurrence by Judge Fernandez
2 ARRENDONDO V. NEVEN
SUMMARY*
Criminal Law
The panel affirmed the district court’s (1) denial, on the
merits, of a claim of invalid waiver of the right to counsel and
(2) dismissal as unexhausted of a claim of denial of the use of
compulsory process, in Nevada state prisoner Armis
Arrendondo’s habeas corpus petition pursuant to 28 U.S.C.
§ 2254.
The panel held that it was not unreasonable for the
Nevada Supreme Court to conclude that Arrendondo waived
his right to counsel knowingly and intelligently, where he was
carefully advised of the procedural risks of foregoing
representation of counsel, and also knew of his substantial
penal exposure under the charges already filed. The panel
held that Arrendondo’s claim that his waiver of counsel was
involuntary fails for lack of proof because he has not
established that he was required to choose between
constitutionally inadequate counsel and self-representation.
The panel held that the district court properly dismissed
Arrendondo’s compulsory-process claim as unexhausted, for
failure to present an underlying federal theory, where
Arrendondo argued and cited Nevada state law alone when
he asserted, in the Nevada Supreme Court, that the trial court
erred in refusing him adequate time to produce his witnesses.
The panel concluded that Arrendondo’s failure to bring a
state post-conviction petition raising either his federal
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
ARRENDONDO V. NEVEN 3
compulsory-process claim on the merits, or a claim of
ineffective assistance of appellate counsel with respect to the
compulsory-process issue, bars this court’s consideration of
his compulsory-process claim.
Judge Fernandez concurred in the result, but wrote that he
is not willing to run the risk of unintended consequences that
comes with saying too much, and therefore did not join in the
majority’s divagations and unnecessary assertions.
COUNSEL
Heather Fraley (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Paul G. Turner,
Assistant Federal Public Defender; Danice Arbor Johnson,
Research & Writing Specialist, Office of the Federal Public
Defender, Las Vegas, Nevada, for Petitioner-Appellant.
Karen A. Whelan (argued), Deputy Attorney General;
Catherine Cortez Masto, Attorney General, Office of the
Attorney General, Las Vegas, Nevada, for Respondents-
Appellees.
4 ARRENDONDO V. NEVEN
OPINION
BERZON, Circuit Judge:
Armis Arrendondo represented himself against theft
charges at trial and was sentenced under Nevada’s habitual
criminal statute, Nev. Rev. Stat. § 207.010, to two concurrent
life sentences, with the possibility of parole after ten years.
He contested his continued detention via a petition for habeas
corpus under 28 U.S.C. § 2254, and now appeals the district
court’s (1) denial, on the merits, of his claim of invalid
waiver of his right to counsel and (2) dismissal as
unexhausted of his claim of denial of the use of compulsory
process. Compelled by the statutory limits on our habeas
corpus review of state convictions, we affirm.
I.
In September 2003, a Las Vegas homeowner returned
from a vacation in Colorado to find his residence ransacked,
several of his possessions missing, and his Winnebago motor
home gone from its garage. The ensuing investigation led
authorities to Arrendondo. Nevada indicted him on one count
of possession of a stolen vehicle and another of possession of
stolen property. See Nev. Rev. Stat. §§ 205.273, 205.275.
At Arrendondo’s arraignment, he pleaded not guilty. In
the months that followed, several public defenders
represented Arrendondo in pre-trial proceedings. Public
defender Drew Christensen represented him at arraignment.
Several weeks later, at a hearing on Arrendondo’s motion for
release, public defender Delbert Martin entered an
appearance. Public defender Victor Austin was then
appointed to represent Arrendondo, but at several subsequent
ARRENDONDO V. NEVEN 5
calendar calls public defender Lynn Avants appeared instead
of Austin.
Arrendondo grew dissatisfied with the quality of
representation provided him by the public defender’s office.
At the second of the two calendar calls at which Avants
appeared, Arrendondo expressed frustration that he had not
met or been represented in court by Austin, his appointed
lawyer. The court ordered Austin “to be prepared for [t]rial
or another Public Defender will be assigned.”
Approximately two and a half months after his
arraignment, Arrendondo filed a handwritten Motion to
Dismiss Counsel and Appointment of Alternate Counsel. In
it, he alleged that his appointed attorney, “Victor Osten [sic],”
had “refus[ed] or fail[ed] to communicate and/or visit” him
in jail; had routinely missed court dates; and had “failed to
assign an investigator to gather information.” Arrendondo
concluded by stating that “clearly, a conflict of interest now
exist[s] between counsel/client (defendant).” At a subsequent
hearing on the matter, Austin explained that Arrendondo had
not complied with Austin’s request to reveal the names and
addresses of potential witnesses, a representation Arrendondo
disputed. It was this failure to furnish names and addresses,
Austin continued, that explained his unwillingness to appoint
an investigator. Arrendondo, in turn, demanded “competent
counsel to represent me because it just seems like he’s
absent-minded. I tell him one thing and two minutes later he
forgets what I told him.”
The court denied Arrendondo’s motion for new counsel.
Nonetheless, for reasons not apparent from the record, public
defender Kristen M. Lynch replaced Austin as Arrendondo’s
attorney.
6 ARRENDONDO V. NEVEN
Over half a year later Arrendondo filed a second
handwritten Motion to Dismiss Counsel. That motion alleged
that Lynch had missed a court date; had “fail[ed] to file
pretrial motions, writs, or petitions” in support of his case;
and had “refus[ed] or fail[ed] to communicate and/or visit”
Arrenondo in jail. It continued:
Lynch (Public Defender) and others like her
are only interested in railroading the
defendant and/or having the defendant sign a
plea agreement. There is definitely a conflict
of interest here. Its [sic] like having a
nemesis in charge of ensuring that justice is
done. The only fair remedy is to have a state
appointed attorney assigned to this case,
instead of a public defender.
The motion also sought to permit Arrendondo to proceed
pro se.
At a hearing held in response to Arrendondo’s motion, at
which public defender Lynn Avants appeared rather than
Lynch, the court canvassed Arrendondo to determine whether
he sought to waive his right to counsel and, if so, whether he
was doing so knowingly, intelligently, and voluntarily:
Court: . . . . Do you want to represent
yourself or not?
Defendant: I believe, um, I would need
standby counsel.
Court: We don’t do that, in most
instances. This certainly
ARRENDONDO V. NEVEN 7
wouldn’t be one. Maybe in a
murder case I might concede.
I don’t know. I don’t typically
do that.
Defendant: When it comes to posing
viable objections or proper
arguments, you know, an
attorney who’s been practicing
every day, um, obviously
would do a much better job
than myself.
Court: Do you want to let them do
their job or do it yourself?
Defendant: I believe I can prove my
innocence. With the
assistance of counsel, of
course, it will be much easier.
Court: Do you want to go ahead and
let your attorney assist you?
Defendant: Will he be representing me?
Court: Are you the attorney of
record?
Mr. Avants: No. It’s Ms. Lynch.
Court: It’s Ms. Lynch.
Defendant: I cannot. No way.
8 ARRENDONDO V. NEVEN
Court: Let’s get on with it here. Do
you want to represent
yourself?
Defendant: Absolutely.
Court: You don’t have to say
anything more. You’ve made
your decision?
Defendant: Between incompetent counsel
or self-representation?
Court: We don’t have the whole day
to spend here.
....
Court: You prefer to take the
disadvantage of not having full
knowledge of the law and
letting some prosecutor
perhaps take advantage of you
in that regard. Is that your
thinking?
Defendant: This is a situation — it’s
between incompetent counsel,
the ineffective assistance of
counsel.
Court: We’re not getting into that. I
want to know if you want to
represent yourself. I don’t
ARRENDONDO V. NEVEN 9
care why. I want you to
realize you’re up against a lot
of problems here.
Defendant: I have no other choice,
apparently.
The court advised Arrendondo that proceeding pro se was
“unwise”; that he would “have to adhere to the same
procedural rules as the lawyers”; that he could not complain
of ineffective assistance of counsel on appeal; that the state
would be represented by an experienced prosecutor; that he
would not receive special library privileges at the jail; that his
legal ignorance would “give the prosecutor an advantage”;
and that, if he testified, he would have difficulty arguing his
own credibility before the jury. Arrendondo acknowledged
that he understood each of these statements.
The court then outlined the elements of the crimes of
which Arrendondo was accused and inquired as to
Arrendondo’s knowledge of possible defenses. The court
also reviewed the possible penalties carried by a conviction:
Court: You understand the penalties
that are possible here?
Defendant: I believe it carries one to six.
Court: Possession of stolen vehicle is
one to 10 years in prison and
as much as a $10,000 fine.
Possession of stolen property
over $2,500 is one to 10 years
in prison and a $10,000 fine.
10 ARRENDONDO V. NEVEN
If it’s between 250 and 2,500
dollars, I believe it’s a C
felony, which is one to five,
and a $10,000 fine. If it’s
under $250, it’s a
misdemeanor. Do you
understand that?
Defendant: Yes.
The court then found that Arrendondo had “knowingly and
freely and voluntarily waiv[ed]” his right to counsel and
granted his motion to proceed pro se.
Before trial, Arrendondo filed a Notice of Alibi
Witnesses, listing twelve individuals who would allegedly
testify on his behalf. Although Arrendondo included the
addresses and telephone numbers of seven of these witnesses,
he failed to provide full contact information for the rest.
At trial, at least two of Arrendondo’s witnesses did not
appear. Arrendondo did not have their “subpoena returns”
because the subpoenas “went out a little late.” As he
explained, “I wanted to schedule this — it was Thursday, and
I had no idea we were going to trial today . . . . I thought I
was just picking the jury today.” At 5:15 PM that day, the
court adjourned. It instructed Arrendondo to produce his
absent witnesses at 10:00 AM the following morning. Those
witnesses did not appear at the appointed hour.
The jury convicted Arrendondo on both counts. Days
later, the state filed a Notice of Intent to Seek Punishment as
a Habitual Criminal under Nev. Rev. Stat. § 207.010, on the
basis of four prior convictions. For a felon previously
ARRENDONDO V. NEVEN 11
convicted of three felonies, § 207.010(b) prescribes any of
three possible punishments, the most severe of which is life
without the possibility of parole. The court sentenced
Arrendondo to two concurrent life sentences, with the
possibility of parole after ten years.
Arrendondo appealed to the Nevada Supreme Court. That
court ordered appointment of counsel, and Marvin L.
Longabaugh was selected to represent Arrendondo.
In his briefs before the Nevada Supreme Court,
Arrendondo’s counsel pressed three claims, two of which are
relevant here: He argued that (1) “the State’s failure to advise
the district court that Arrendondo might be charged as a
habitual criminal made Arrendondo’s waiver of counsel
invalid”; and (2) the trial court denied Arrendondo “adequate
time to produce his trial witnesses.”
After Longabaugh filed Arrendondo’s opening brief but
before receiving the state’s answering brief, Arrendondo
wrote a letter to Longabaugh expressing concerns about his
appeal. That letter is not included in the record, but
Longabaugh’s written response is. In it, Longabaugh
explains that the appeal
focuses on errors that the district court made
during your case. If we were to present these
constitutional issues at this time, you would
be waiving your ability to appeal these issues
through your habeas corpus petition.
Consequently, we did not address these
possible federal constitutional violations
because we want to preserve your right to
12 ARRENDONDO V. NEVEN
argue them when and if you seek habeas
relief.
While the appeal was pending, Arrendondo filed a hand-
written, pro se Motion to Dismiss Counsel and Appointment
of Alternate Counsel. In it, he alleged that Longabaugh had
failed to raise several claims. Included among these
grievances was the assertion that Longabaugh had refused to
substantiate Arrendondo’s inability to produce witnesses by
appending stamped subpoenas as exhibits to the appellate
briefs. The Nevada Supreme Court denied the motion.
Three months later, the Nevada Supreme Court issued its
decision on Arrendondo’s appeal. It affirmed the validity of
his waiver of counsel. “Although the district court indicated
that Arrendondo would face a maximum of twenty years if
convicted, rather than life,” the court reasoned, “the otherwise
extensive canvass of Arrendondo demonstrated that he
understood the dangers and disadvantages of self-
representation.” The Nevada Supreme Court also noted that
when Arrendondo waived his right to counsel, the state had
not yet filed notice that it would seek sentencing under
Nevada’s habitual criminal statute. Separately, the court
affirmed that Arrendondo had been granted adequate time at
trial to produce his witnesses.
Without first filing a state post-conviction petition,
Arrendondo filed a federal habeas petition. That petition was
dismissed without prejudice for reasons unexplained in the
record. This second pro se federal habeas petition followed.
In it, Arrendondo argued that his waiver of counsel was
invalid, because it was neither knowing and intelligent nor
voluntary. He also asserted denial of his right to compulsory
process.
ARRENDONDO V. NEVEN 13
The district court dismissed Arrendondo’s denial of
compulsory process claim on exhaustion grounds. Because
of the unexhausted claims, the district court declared the
petition “mixed” and thus subject to dismissal, see Rose v.
Lundy, 455 U.S. 509, 510 (1982), but offered Arrendondo an
opportunity to cure the problem prior to dismissal.
Arrendondo thereupon accepted the district court’s invitation
to abandon the compulsory process claim and proceeded on
his remaining ground for relief, that his waiver of counsel
was invalid. In a later ruling, the district court denied that
waiver claim on the merits, reasoning that Arrendondo’s
“waiver was knowing and intelligent” and that the Nevada
Supreme Court’s ruling “was not contrary to United States
Supreme Court precedent.”
This appeal followed. A Certificate of Appealability was
granted on both the validity of Arrendondo’s waiver of
counsel and the determination that Arrendondo’s compulsory
process claim was unexhausted. We ordered counsel
appointed for the appeal.
II.
A criminal defendant may waive his Sixth Amendment
right “to have the Assistance of Counsel for his defence,”
U.S. Const. amend. VI, only if he acts “knowingly and
intelligently,” with full awareness of the “dangers and
disadvantages of self-representation.” Faretta v. California,
422 U.S. 806, 835 (1975); accord Patterson v. Illinois, 487
U.S. 285, 292 (1988). The Faretta doctrine polices the
border between “two correlative and mutually exclusive Sixth
Amendment rights: the right to have counsel, on one hand,
and the right to refuse counsel and represent [oneself], on the
14 ARRENDONDO V. NEVEN
other.” United States v. Gerritsen, 571 F.3d 1001, 1007 (9th
Cir. 2009).
Arrendondo argues that his waiver of counsel was neither
“knowing and intelligent” nor voluntary. Because the
Supreme Court of Nevada has already rejected Arrendondo’s
claim on the merits, the deferential standard codified at
28 U.S.C. § 2254(d)(1) governs our review of Arrendondo’s
petition.1 Arrendondo thus must demonstrate that the Nevada
Supreme Court’s decision (1) was “contrary to” clearly
established federal law as determined by the United States
Supreme Court or (2) “involved an unreasonable application
of such law.” Harrington v. Richter, 131 S. Ct. 770, 785
(2011) (internal quotation marks omitted). We review de
novo the district court’s application of this standard. See,
e.g., Smith v. Swarthout, 742 F.3d 885, 892 (9th Cir. 2014).
A.
To prove that his waiver of counsel was not “knowing and
intelligent,” Arrendondo advances a pair of related
arguments. He first attributes error to the trial court’s failure
to discharge its “duty to ensure that an accused who sought to
proceed pro se was advised of the range of possible
punishments.” Elsewhere, Arrendondo switches tacks,
asserting that his colloquy with the trial court demonstrates
that he “lacked the knowledge that he was facing a sentence
of life in prison if convicted.” Neither argument entitles
1
Arrendondo does not contend that the Nevada Supreme Court’s ruling
rested on unreasonable factfinding, so 28 U.S.C. § 2254(d)(2) —
permitting relief where the state court decision “was based on an
unreasonable determination of the facts in light of the evidence presented
in the State court proceeding” — is inapplicable.
ARRENDONDO V. NEVEN 15
Arrendondo to habeas relief, but the latter comes closer to the
mark than the former.
1. As to Arrendondo’s first argument: No clearly
established Supreme Court case law requires trial courts to
apprise defendants in any particular form of the risks of
proceeding to trial pro se. Under the governing Supreme
Court precedents, so long as “the record . . . establish[es] that
‘[the defendant] knows what he is doing and his choice is
made with eyes open,’” the waiver of counsel is valid.
Faretta, 422 U.S. at 835 (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942)). The Supreme Court
has accordingly declined to “prescribe[] any formula or script
to be read to a defendant who states that he elects to proceed
without counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004).
In direct appeals, this Court has noted that “it is ‘only the
rare case in which an adequate waiver will be found on the
record in the absence of a specific inquiry by the trial judge,’”
Gerritsen, 571 F.3d at 1008 (quoting United States v.
Balough, 820 F.2d 1485, 1488 (9th Cir. 1987)), and that
“‘[w]e prefer trial courts to simplify our review by explaining
the risks of self-representation to the accused,” id. (quoting
United States v. Kimmel, 672 F.2d 720, 722 (9th Cir. 1982)).
Still, “the failure of the district court to engage in a colloquy
with the defendant cannot itself be reversible error. . . .
‘[B]ecause the test concerns what the accused understood
rather than what the court said or understood, explanations
are not required.’” Id. (quoting Kimmel, 672 F.2d at 722).
In sum, Arrendondo’s assertion that the Constitution
requires particularized warnings when a defendant seeks to
represent himself is not supported by established Supreme
Court law. Under 28 U.S.C. § 2254(d)(1), we must deny the
16 ARRENDONDO V. NEVEN
request for habeas relief insofar as it is premised on that
assertion.
2. Arrendondo next argues that, at the time of his waiver,
he “simply did not have an adequate appreciation of the
length of prison time that he would face upon conviction.”
The Supreme Court has clearly established that a defendant
must have a general understanding of the potential penalties
of conviction before waiving counsel to render that waiver
valid. See infra Part II.A.2.a. It has not, however,
determined whether a defendant must understand the
potential penal consequences of sentencing enhancements
that have not yet been charged. See infra Part II.A.2.b. And,
we conclude, refusing to require such an understanding is not
an unreasonable application of what little the Supreme Court
has said on the matter. See id. Consequently, Arrendondo’s
ignorance of the possibility that he could be sentenced as a
habitual criminal if the prosecution later filed notice that it
would seek such a penalty cannot be a basis for habeas relief
under § 2254(d)(1).
a. Faretta, 422 U.S. at 835, held that, “to represent
himself [at trial], the accused must ‘knowingly and
intelligently’ forgo” the right to counsel. To qualify as
knowing and intelligent, the Court continued, such a decision
must be made with awareness “of the dangers and
disadvantages of self-representation.” Id.
Faretta itself did not specifically address the defendant’s
awareness of his possible punishments. But Tovar, 541 U.S.
77, did. That case explained that a defendant, before waiving
his right to counsel for the purpose of entering a guilty plea,
must be aware “of the nature of the charges against him, of
his right to be counseled regarding his plea, and of the range
ARRENDONDO V. NEVEN 17
of allowable punishments attendant upon the entry of a guilty
plea.” Id. at 81 (emphasis added); see also Von Moltke v.
Gillies, 332 U.S. 708, 724 (1948) (plurality opinion) (stating
that a valid waiver of counsel for the purpose of entering a
guilty plea requires “an apprehension of . . . the range of
allowable punishments,” among other matters).2
The requirement recounted in Tovar complements the
requisites for a valid waiver of the right to counsel described
in Faretta.3 As the common law of torts long ago recognized,
the rational calculation of risk requires multiplying the
magnitude of a threatened loss by the probability of its
2
Von Moltke was a plurality opinion, which Faretta, 422 U.S. at 835,
cited for support. Typically, the holding of such a decision is “that
position taken by those Members who concurred in the judgments on the
narrowest grounds.” Marks v. United States, 430 U.S. 188, 198 (1977)
(internal quotation marks and citation omitted). Justices Frankfurter and
Jackson concurred in the judgment of the Von Moltke plurality on the
ground that the validity of the defendant’s waiver depended on the
resolution of questions of credibility, and that remand was therefore
necessary for further findings of fact. Von Moltke, 332 U.S. at 729–31
(Frankfurter, J., concurring in the judgment); see also id. at 727 (plurality
opinion) (remanding for the reasons described in Justice Frankfurter’s
separate opinion). The Von Moltke plurality opinion, however, has been
cited by the Supreme Court as that of the Court, albeit with the “cf.”
signal, but no note of its plurality character. See Patterson, 487 U.S. at
298. The Eighth Circuit has relied on Von Moltke as clearly established
Supreme Court law. See Shafer v. Bowersox, 329 F.3d 637, 651 (8th Cir.
2003). We need not further evaluate Von Moltke’s independent authority
as clearly established Supreme Court law, because Tovar clearly
establishes that a defendant waiving counsel must understand “the range
of allowable punishments attendant upon the entry of a guilty plea.”
541 U.S. at 81.
3
Decades before Tovar, we adopted a similar requirement in our cases
on direct review. See, e.g., United States v. Harris, 683 F.2d 322, 324–25
(9th Cir. 1982).
18 ARRENDONDO V. NEVEN
occurrence. See United States v. Carroll Towing Co.,
159 F.2d 169, 173 (2d Cir. 1947). Tovar supplies the first of
these terms; Faretta, the second. By requiring awareness of
the range of possible penalties, Tovar ensures that defendants
understand the magnitude of the loss they face. Faretta,
meanwhile, emphasizes awareness of “the dangers and
disadvantages of self-representation” — that is, the specific,
tactical liabilities of going to trial without trained counsel.
Faretta, 422 U.S. at 835 (emphasis added). That knowledge
relates to the probability that a defendant will be convicted,
not the consequences of conviction. In short, the
requirements of Faretta and Tovar enrich one another. Taken
together, they outline the minimum necessary knowledge for
a defendant to calculate knowingly and intelligently the risk
of proceeding to trial pro se.
Tovar’s statement concerning the defendant’s knowledge
of possible punishments is clearly established Supreme Court
law, and was at the time of the Court’s decision on the merits.
Tovar stated: “We hold . . . . [that t]he constitutional
requirement is satisfied when the trial court informs the
accused of the nature of the charges against him, of his right
to be counseled regarding his plea, and of the range of
allowable punishments attendant upon the entry of a guilty
plea.” Tovar, 541 U.S. at 81 (emphases added). An express
holding is clearly established Supreme Court law for purposes
of 28 U.S.C. § 2254(d)(1). See, e.g., White v. Woodall, 134
S. Ct. 1697, 1702 (2014). Moreover, the defendant’s
understanding of his potential punishment was included in
Tovar’s reasoning; the opinion affirmatively highlighted the
fact that the defendant “has never claimed that he did not
fully understand . . . the range of punishment for the crime
. . . .” 541 U.S. at 92.
ARRENDONDO V. NEVEN 19
Tovar, unlike this case, concerned an uncounseled guilty
plea, not a defendant who represented himself at trial. But
Tovar addressed the relationship between waiver at the plea
phase and waiver at trial, stating that at the plea stage, “a less
searching or formal colloquy” is needed to gauge the
defendant’s knowledge than is necessary with regard to
waiver of trial counsel. Tovar, 541 U.S. at 89 (emphasis
added) (citing Patterson, 487 U.S. at 299). This difference is
“not because pretrial proceedings are ‘less important’ than
trial, but because, at that stage, ‘the full dangers and
disadvantages of self-representation . . . are less substantial
and more obvious to an accused than they are at trial.’”
Tovar, 541 U.S. at 90 (emphasis added) (quoting Patterson,
487 U.S. at 299).
The risk calculation involved in determining whether to
represent oneself at trial differs from that at the plea stage
with regard to the number of tactical dangers of proceeding
without counsel — that is, the probability that proceeding
without counsel will affect the outcome. But there is no
difference at all in the two circumstances with regard to the
other component of risk calculation — namely, knowledge of
the magnitude of the risk faced. And, given the Court’s
express declaration that the requirements for a guilty plea
waiver of counsel are less rigorous than those applicable to a
trial waiver, excising any of Tovar’s requirements in the trial
context would be an unreasonable interpretation of clearly
established Supreme Court law.
b. Here, the trial court informed Arrendondo of the
maximum penalties carried by conviction for the charged
offenses, possession of a stolen vehicle and possession of
stolen property, and Arrendondo confirmed that he
understood the court’s statement. See Nev. Rev. Stat.
20 ARRENDONDO V. NEVEN
§§ 205.273(4), 205.275(2)(c). We generally presume that
defendants seeking to waive their right to counsel understand
what they are told regarding that choice. See, e.g., Patterson,
487 U.S. at 296; United States v. Mohawk, 20 F.3d 1480,
1484 (9th Cir. 1994). In holding valid Arrendondo’s waiver
of counsel, the Nevada Supreme Court noted, correctly, that
Arrendondo’s understanding of his potential penal exposure
accurately reflected the charging documents before the trial
court at the time of his waiver.
Arrendondo contests that conclusion on the ground that he
was unaware of the potential for a greater penal exposure
under Nevada’s habitual criminal statute, Nev. Rev. Stat.
§ 207.010, with which he had not yet been charged when he
waived his right to counsel.4 And he maintains that without
knowledge of that exposure, his waiver of trial counsel was
not knowing and intelligent. The strictures of 28 U.S.C.
§ 2254(d)(1) preclude us from granting habeas corpus relief
on that ground.
4
At the time of Arrendondo’s conviction, Nevada law did not require
that a defendant be charged with the habitual criminal enhancement, or
with the prior convictions underlying that enhancement, prior to trial. See
Nev. Rev. Stat. §§ 173.095, 207.016(2). At that time, the statute permitted
the prosecutor to seek an enhanced sentence, at the discretion of the
prosecuting attorney, see Nev. Rev. Stat. § 207.010(2), by filing an
information after conviction but before sentencing, see Crutcher v. Eighth
Judicial Dist. Court In & For Cnty. of Clark, 903 P.2d 823, 825–26 (Nev.
1995) (per curiam). That is what happened here.
In 2013, however, the Nevada legislature amended the relevant
statutory provision to require the filing of a habitual criminal information
“not less than 2 days before the start of the trial on the primary offense,
unless an agreement of the parties provides otherwise or the court for good
cause shown makes an order extending the time.” 2013 Nev. Legis. Serv.
Ch. 292, § 1 (A.B. 97) (West) (codified at Nev. Rev. Stat. § 207.016(2)).
ARRENDONDO V. NEVEN 21
i. Clearly established Supreme Court law does not require
a defendant waiving his right to counsel to understand the
potential application of recidivist sentencing enhancements
that had not yet been charged, and were not required to have
been charged, at the time of the waiver. Where sentencing
enhancements are based solely on prior convictions, current
Supreme Court case law does not require that the convictions
be charged before conviction, tried to a jury, or found beyond
a reasonable doubt. See Almendarez-Torres v. United States,
523 U.S. 224, 227–28 (1998); see also United States v.
Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000). And the
Supreme Court has never held that a defendant’s knowledge
of “the range of allowable punishments,” Tovar, 541 U.S. at
81, required for a valid waiver of counsel, includes awareness
of enhanced sentencing options premised on such prior
convictions, the application of which can only result from an
act of prosecutorial discretion that may be exercised after trial
and conviction. Tovar does not address the question, nor
does any subsequent Supreme Court decision. “Therefore, no
‘specific legal rule’ on this issue has been ‘squarely
established by th[e] Court.’” John-Charles v. California,
646 F.3d 1243, 1249 (9th Cir. 2011) (alteration in original)
(quoting Richter, 131 S. Ct. at 786). The Nevada Supreme
Court’s rejection of Arrendondo’s knowing and voluntary
waiver argument, to the extent it rested on the circumstance
that the enhancements had not been charged at the time the
waiver occurred, was thus not contrary to clearly established
Supreme Court law. See 28 U.S.C. § 2254(d)(1).
ii. Section 2254(d)(1) permits habeas relief not only
where a state court decision is inconsistent with clearly
established Supreme Court law, but also where its decision
“involved an unreasonable application of[] clearly established
. . . law.” “[T]he lack of a Supreme Court decision on nearly
22 ARRENDONDO V. NEVEN
identical facts does not by itself mean that there is no clearly
established federal law, since ‘a general standard’ from [the
Supreme] Court’s cases can supply such law,” Marshall v.
Rodgers, 133 S. Ct. 1446, 1449 (2013) (quoting Yarborough
v. Alvarado, 541 U.S. 652, 664 (2004)), if the “unreasonable
application” standard is met.
A state court applies a clearly established standard
unreasonably only if no “reasonable interpretation of the
controlling [Supreme Court] standard” can “support [the state
court’s] legal ruling.” Panetti v. Quarterman, 551 U.S. 930,
953 (2007). So, when evaluating the reasonableness of a state
court’s application of a general standard, we must defer to
any “principled reason for the state court to distinguish
between the case before it and Supreme Court precedent.”
Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010) (en
banc). Moreover, § 2254(d)(1), the Supreme Court recently
explained,
does not require state courts to extend [a
Supreme Court] precedent or license federal
courts to treat the failure to do so as error.
Thus, “if a habeas court must extend a
rationale before it can apply to the facts at
hand,” then by definition the rationale was not
“clearly established at the time of the state-
court decision.” AEDPA’s carefully
constructed framework “would be undermined
if habeas courts introduced rules not clearly
established under the guise of extensions to
existing law.”
White, 134 S. Ct. at 1706 (internal citations omitted) (quoting
Yarborough, 541 U.S. at 666).
ARRENDONDO V. NEVEN 23
Applying these standards, we hold that it was not
unreasonable for the Nevada Supreme Court to rest its denial
of Arrendondo’s knowing and voluntary waiver claim in part
on the circumstance that the enhancements had not been
charged, or otherwise presaged, at the time of the waiver.
Requiring pretrial knowledge of the potential for such later
enhancements would extend Tovar’s requirement to
circumstances not addressed by that case, which 28 U.S.C.
§ 2254(d)(1) would permit only if all reasonable
interpretations of Tovar would so require. See White, 134 S.
Ct. at 1706. That is not the case here.
First, as to whether “‘fairminded jurists could disagree’
on the correctness of” the Nevada Supreme Court’s limitation
on the knowledge a defendant must possess to waive counsel,
Richter, 131 S. Ct. at 786 (emphasis added) (quoting
Alvarado, 541 U.S. at 664), there is a substantial argument
that fairminded jurists already have endorsed that limitation,
cf. John-Charles, 646 F.3d at 1250 (concluding that a rule
was not unreasonable where several circuits, including our
own, have already adopted it). The plurality opinion in Von
Moltke, 332 U.S. 709, on which Faretta partially relied, in
terms requires a defendant waiving counsel to be aware only
of the possible consequences of the charged offenses. That
opinion conditioned waiver of counsel, for the purpose of an
uncounseled guilty plea, on a defendant’s “apprehension of
the nature of the charges, the statutory offenses included
within them, [and] the range of allowable punishments
thereunder . . . .” Id. at 724 (emphasis added).5 Punishment
5
The adverb “thereunder” is referential. “‘Where no contrary intention
appears,’” such a referential word “‘refer[s] solely to the last antecedent.’”
May Trucking Co. v. Oregon Dept of Transp., 388 F.3d 1261, 1268 (9th
Cir. 2004) (quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307,
24 ARRENDONDO V. NEVEN
authorized by separate statutory provisions upon the filing of
a separate information was thus beyond the knowledge
required by the Von Moltke plurality. The necessary
implication was that a defendant seeking to waive counsel for
the purpose of entering a plea need not be aware of possible
penal exposure under charges the state has not yet brought.6
The “fairminded jurist” standard focuses “on application
of law rather than on counting noses,” Doody v. Ryan,
649 F.3d 986, 1007 n.6 (9th Cir. 2011) (en banc), so we must
evaluate the substance of the distinction the Nevada Supreme
Court relied on here. In doing so, we conclude that there are
1311 (9th Cir. 1992)); cf. Barnhart v. Thomas, 540 U.S. 20, 26 (2003). In
the quotation from Von Moltke, “thereunder” refers to the statutory
offenses included within the charges faced by the defendant. The full
clause, then, requires knowledge of “the range of allowable punishments”
under the statutory offenses with which the defendant has been charged.
6
We note, without adopting the result as our own, that the Fourth Circuit
resolved a similar question in the “analogous context”of the knowledge a
defendant must possess to plead guilty, Gerritsen, 571 F.3d at 1009,
holding that it is not unreasonable to determine that ignorance as to
uncharged recidivist sentencing enhancements does not render the waiver
of counsel invalid, see Appleby v. Warden, N. Reg’l Jail & Corr. Facility,
595 F.3d 532, 541 (4th Cir. 2010). To be valid, a guilty plea “not only
must be voluntary but must be [a] knowing, intelligent act[] done with
sufficient awareness of the relevant circumstances and likely
consequences.” Brady v. United States, 397 U.S. 742, 748 (1970). That
standard, in turn, requires a defendant waiving his right to trial to be “fully
aware of the direct consequences” of his plea.” Id. at 755 (internal
quotation marks omitted). The Fourth Circuit held not an unreasonable
application of Supreme Court law, under 28 U.S.C. § 2254(d)(1), the West
Virginia Supreme Court of Appeals’ determination that a defendant’s
guilty plea is valid notwithstanding his ignorance of the potential
application of an enhanced sentence, which had not yet been charged at
the time of the plea, under West Virginia’s recidivist offender statutes.
See Appleby, 595 F.3d at 541.
ARRENDONDO V. NEVEN 25
principled bases on which one could decide that the Tovar
right is limited to charges filed at the time of waiver of
counsel, at least with regard to enhancements, such as
recidivist enhancements, that Apprendi v. New Jersey,
530 U.S. 466 (2000), and its progeny do not require to be
charged before trial and tried to a jury.
As is often the case in federal court, prior convictions
may not be identified before trial, before the waiver of
counsel, or before the entry of a guilty plea. Cf. e.g., United
States v. Barrios-Gutierrez, 255 F.3d 1024, 1027 (9th Cir.
2001) (en banc). Where a defendant is in the process of
waiving counsel, he is likely, as here, to be reliant on the trial
court for his knowledge of the range of permissible
punishments, as his own lawyer is on the sidelines at this
juncture. At best, the trial court likely could provide, and the
defendant could obtain, contingent and general information
about the possibility of greater penal exposure due to a
potentially applicable recidivist enhancement: The defendant
could learn that, depending on the nature of his prior
convictions, and if the prosecutor decides subsequently to
seek recidivist sentencing, his penal exposure could increase,
although it may not be possible to say with any clarity what
that exposure would be. Reasonable jurists could conclude
that such vague and contingent knowledge about additional
charges that might or might not be brought is unlikely to
affect the choice of an otherwise determined defendant to
proceed without counsel, and so is not pertinent to the
knowing and intelligent waiver inquiry.
We might well conclude otherwise, were the issue before
us on direct appeal, particularly where the impact of recidivist
enhancements on the defendant’s penal exposure is great.
The knowledge of very substantial recidivist sentencing
26 ARRENDONDO V. NEVEN
enhancements, even if contingent and vague, could well be
sufficiently likely to affect a defendant’s risk assessment in
deciding whether to forego counsel to come within the Tovar
requirement. Indeed, in United States v. Keen we held invalid
a waiver of counsel where there was “no indication that [the
defendant] was aware of the enhanced penalty he faced as a
result of [his] prior convictions under the armed career
criminal provisions of 18 U.S.C. § 924(e),” along with
several other problems. 104 F.3d 1111, 1116 (9th Cir.
1996).7 And, in the “analogous context” of the knowledge a
defendant must possess to plead guilty under Federal Rule of
Criminal Procedure 11, Gerritsen, 571 F.3d at 1009, our
cases indicate that knowledge of potential recidivist
enhancements may be necessary. Rule 11 requires an on-the-
record determination that a defendant pleading guilty
understands both “any maximum possible penalty” and “any
mandatory minimum penalty.” Fed. R. Crim. P.
11(b)(1)(H)–(I). Under that rule, we have condoned the
district court’s rejection of a guilty plea where a defendant
was told in the plea colloquy that he faced a maximum
sentence of two years, notwithstanding the potential
application of a sentencing enhancement that would extend
his maximum possible sentence to 20 years. See United
States v. Valenzuela-Arisqueta, 724 F.3d 1290, 1296 (9th Cir.
2013). We have also upheld a plea colloquy advising
defendants of maximum possible sentences that the
indictment does not support. See Garcia-Aguilar v. U.S. Dist.
7
Although Keen predates Tovar, the law of this Circuit already required
a defendant waiving his right to counsel to understand his possible penal
exposure. See, e.g., Harris, 683 F.2d at 324. Keen itself recognized that
a defendant must be “‘aware of . . . the possible penalties’” to waive
counsel. Keen, 104 F.3d at 1114 (quoting Mohawk, 20 F.3d at 1484).
ARRENDONDO V. NEVEN 27
Court for S. Dist. of Cal., 535 F.3d 1021, 1025 (9th Cir.
2008).
Nevertheless, we “‘may not issue the [habeas] writ simply
because [we] conclude[] in [our] independent judgment that
the relevant state-court decision applied clearly established
federal law erroneously or incorrectly.’” Lockyer v. Andrade,
538 U.S. 63, 75–76 (2003) (quoting Williams v. Taylor,
529 U.S. 362, 411 (2000)). Where, as here, the defendant
was carefully advised of the procedural risks of foregoing
representation by counsel, and also knew of his substantial
penal exposure under the charges already filed, it was not
unreasonable for the Nevada Supreme Court to conclude that
he waived his right to counsel knowingly and intelligently.
B.
A defendant’s waiver of counsel must not only be
knowing and intelligent, it must also be voluntary. See
Faretta, 422 U.S. at 835; Patterson, 487 U.S. at 292 n.4.
Arrendondo argues that his decision to forego representation,
even if knowing and intelligent, was not voluntary, “because
he was forced to choose between incompetent, unprepared,
and ineffective counsel versus self-representation.”
Arrendondo’s argument fails on the facts, as he has not
established that his trial counsel was constitutionally
inadequate. We therefore need not, and do not, consider
whether his legal theory, if supported by the facts, would
entitle him to relief.
When unconstrained by 28 U.S.C. § 2254(d)(1), our cases
do indicate that a Faretta waiver is involuntary if the
alternative is constitutionally inadequate counsel. See
Crandell v. Bunnell, 25 F.3d 754, 755 (9th Cir. 1994) (per
28 ARRENDONDO V. NEVEN
curiam); United States v. Robinson, 913 F.2d 712, 715–16
(9th Cir. 1990). Electing self representation over
unsatisfactory — but constitutionally sufficient — counsel
does not make a defendant’s waiver of counsel involuntary.
See Robinson, 913 F.2d at 715–16. Even if Supreme Court
law has clearly established this standard — and we do not
decide whether it has — Arrendondo has not factually
satisfied it.
On collateral attack, a habeas petitioner contesting the
validity of his waiver of counsel shoulders the burden of
proof. See Tovar, 541 U.S. at 92; Johnson v. Zerbst, 304 U.S.
458, 468–69 (1938); United States v. Lenihan, 488 F.3d 1175,
1177 (9th Cir. 2007) (per curiam). To establish the
constitutional inadequacy of counsel, Arrendondo must
demonstrate that his attorney was burdened by an actual
conflict of interest, Cuyler v. Sullivan, 446 U.S. 335, 348–49
(1980), or that his attorney’s performance was both
objectively deficient and prejudicial, Strickland v.
Washington, 466 U.S. 668, 687–88 (1984).
Arrendondo does not begin to meet this burden. He notes
in his briefing only that he and his last public defender,
Lynch, had limited contact as they prepared for trial and that,
shortly before his waiver, Arrendondo complained that he
“‘wants motions and writs filed.’” The habeas record
contains no information at all concerning what “motions and
writs” he wanted filed, so it is impossible to evaluate whether
they had any chance of success, or whether a competent
lawyer could have had a tactical or strategic reason for not
filing them. See Richter, 131 S. Ct. at 790. Without a fuller
understanding of the scope of Lynch’s preparations or the
type of “motions and writs” Arrendondo desired, it is
ARRENDONDO V. NEVEN 29
impossible to evaluate the adequacy of Lynch’s
representation or its effect upon Arrendondo’s case.
What little evidence is included in the record cuts against
Arrendondo. In a pro se Motion to Dismiss Counsel, filed in
the weeks leading up to trial, Arrendondo alleged that Lynch
had failed to appear at a hearing to consider Arrendondo’s
Motion for Bail Reduction, leaving him “without anyone to
argue my position.” The record does not include a transcript
of that hearing, but court minutes reveal that public defender
Jannette Reyes-Speer appeared on Arrendondo’s behalf,
contradicting any claim of abandonment. Moreover, at a
subsequent hearing to consider Arrendondo’s Motion to
Dismiss Counsel, the court emphatically denied that Lynch’s
absence had affected its decision on the bail-reduction
motion. “It wouldn’t have mattered if it would have been Ms.
Lynch or someone else standing there,” the court explained.
“The same facts apply.” Thus, no possibility of Strickland
prejudice could be established.
Last, Arrendondo’s Motion to Dismiss Counsel asserted
the existence of what Arrendondo termed a “conflict of
interest.” The claim is significant, because demonstrating
“that an actual conflict of interest adversely affected his
lawyer’s performance” would relieve Arrendondo of the
burden of showing prejudice. Sullivan, 446 U.S. at 34. But,
in support of this claim, Arrendondo alleges not a conflict of
interest but instead strategic differences between Arrendondo
and his lawyer — namely, Lynch’s advice that Arrendondo
enter into a plea agreement. No actual conflict of interest
appears on the record.
In short, Arrendondo has not established that he was
required to choose between constitutionally inadequate
30 ARRENDONDO V. NEVEN
counsel and self-representation. His claim of involuntary
waiver thus fails for lack of proof, whatever the merits might
otherwise be.
III.
The district court dismissed Arrendondo’s compulsory
process claim as unexhausted, for failure fairly to present an
underlying federal theory. Before the Nevada Supreme
Court, the district court concluded, Arrendondo “argued and
cited Nevada state law” alone when he asserted that the trial
court erred in refusing him adequate time to produce his
witnesses. We affirm that ruling.
Usually, a state prisoner must exhaust available state
remedies before a federal habeas court will consider his
claim. See 28 U.S.C. § 2254(b)(1)(A). This “rule of comity
reduces friction between the state and federal court systems
by avoiding the ‘unseem[liness]’ of a federal district court’s
overturning a state court conviction without the state courts
having had an opportunity to correct the constitutional
violation in the first instance.” O’Sullivan v. Boerckel,
526 U.S. 838, 845 (1999) (alteration in original) (quoting
Darr v. Burford, 339 U.S. 200, 204 (1950)). Satisfying this
exhaustion requirement ordinarily requires state prisoners to
“‘fairly presen[t]’” their federal legal theories to the state
courts, so that those courts are “alerted to the fact that the
prisoners are asserting claims under the United States
Constitution” and thus “given the opportunity to correct
alleged violations of prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365–66 (1995) (alteration in original)
(quoting Picard v. Connor, 404 U.S. 270, 275 (1971)). To
fairly present a federal claim, a state prisoner must present to
the state courts both the operative facts and the federal legal
ARRENDONDO V. NEVEN 31
theories that animate the claim. See Gray v. Netherland,
518 U.S. 152, 162–63 (1996); Castillo v. McFadden,
399 F.3d 993, 999 (9th Cir. 2005). Because Arrendondo’s
brief before the Nevada Supreme Court focused exclusively
on state law, he failed to present his compulsory-process
claim as a federal claim.
1. Arrendondo argues that his inclusion of a reference to
Harris v. State, 942 P.2d 151 (Nev. 1997), in his brief before
the Nevada Supreme Court satisfies the fair presentation
requirement. “[F]or purposes of exhaustion, a citation to a
state case analyzing a federal constitutional issue serves the
same purpose as a citation to a federal case analyzing such an
issue.” Peterson v. Lampert, 319 F.3d 1153, 1158 (9th Cir.
2003) (en banc).
Nevertheless,
[f]or a federal issue to be presented by the
citation of a state decision dealing with both
state and federal issues relevant to the claim,
the citation must be accompanied by some
clear indication that the case involves federal
issues. Where . . . the citation to the state case
has no signal in the text of the brief that the
petitioner raises federal claims or relies on
state law cases that resolve federal issues, the
federal claim is not fairly presented.
Casey v. Moore, 386 F.3d 896, 912 n.13 (9th Cir. 2004);
accord Fields v. Waddington, 401 F.3d 1018, 1022 (9th Cir.
2005). Casey refused to recognize any such “signal” where
the relevant brief never used the word “federal”; “did not
refer expressly to the federal constitution or to any of its
32 ARRENDONDO V. NEVEN
provisions”; and “did not indicate in parentheticals or
elsewhere whether the[] state cases [the brief did cite]
discussed the federal constitution.” 386 F.3d at 911–12.
Arrendondo’s brief before the Nevada Supreme Court is
similarly barren of any such textual reference to federal law
on compulsory process. Arrendondo’s citation of that
decision thus did not fairly present his federal claim to the
Nevada Supreme Court.
2. Arrendondo endeavors to fill the briefing gap with the
observation that his pro se Motion to Dismiss Counsel, filed
several months after his opening brief, alerted the Nevada
Supreme Court to the federal component of his claim.
Arrendondo introduced his complaints about the performance
of his appellate counsel, which were unrelated to counsel’s
failure to argue the federal components of his claim, with an
extended quotation from United States v. Nobles, 422 U.S.
225, 231 (1975).
Had Arrendondo included Nobles in his briefs, it might
have satisfied the fair-presentation requirement. That
requirement may be satisfied “by citing . . . a case deciding [a
sufficiently similar] claim on federal grounds.” Baldwin v.
Reese, 541 U.S. 27, 32 (2004).8 But the Nobles citation
appeared in a collateral pro se motion, not in the merits brief
filed by counsel. “As a general rule, a petitioner satisfies the
exhaustion requirement by fairly presenting the federal claim
8
Nevertheless, “[m]ere ‘general appeals to broad constitutional
priciples, such as due process, equal protection, and the right to a fair
trial,’ do not establish exhaustion.” Castillo, 399 F.3d at 999. Thus even
if Nobles were included in Arrendondo’s merits briefs, we would have to
analyze the specificity with which it analyzed the relevant issues — an
analysis we do not undertake here.
ARRENDONDO V. NEVEN 33
to the appropriate state courts (plural) in the manner required
by the state courts.” Casey, 386 F.3d at 915–16. That usually
means “present[ing] his federal, constitutional issue before
the . . . [state courts] within the four corners of his appellate
briefing.” Castillo, 399 F.3d at 1000. A pro se procedural
motion unrelated to the substantive merits of Arrendondo’s
claim briefed by counsel is not part of the “appellate briefing”
for purposes of the Castillo “four corners” requirement. Nor
do we have any basis for concluding that the Nevada
Supreme Court would nonetheless have considered on the
merits a citation in a collateral procedural motion filed
months before, pro se, by a represented defendant. See Nev.
R. App. P. 28(a)(9); Powell v. Liberty Mut. Fire Ins. Co.,
252 P.3d 668, 672 n.3 (Nev. 2011).
3. Last, Arrendondo asserts that the Nevada Supreme
Court’s reference to Harris in the decision rejecting his
appeal demonstrates that the Nevada Supreme Court “was
aware of the federal constitutional basis of the claim,” so the
question whether he properly raised the issue does not matter.
The legal premise of this argument is correct. “[T]here is
no point in asking whether a state court had a ‘full and fair
opportunity to resolve federal constitutional claims’ when the
state court in fact did so.” Sandgathe v. Maass, 314 F.3d 371,
377 (9th Cir. 2002) (quoting O’Sullivan, 526 U.S. at 845); see
also Ybarra v. McDaniel, 656 F.3d 984, 991 (9th Cir. 2011);
Casey, 386 F.3d at 916 n.18. “Where a [state] court has in
fact ruled on a claim, there is no possibility of ‘friction
between the state and federal court systems.’” Sangathe,
314 F.3d at 377 (alteration in original) (quoting O’Sullivan,
526 U.S. at 845).
34 ARRENDONDO V. NEVEN
In Sandgathe, however, the last reasoned state court
opinion “explicitly ruled on the federal constitutional
issue[],” such that the claim was exhausted. Id. at 378; see
also Ybarra, 656 F.3d at 991 (holding it “clear from the
record that the Nevada Supreme Court did in fact rule on the
merits” of the relevant claim). Here, in contrast, the Nevada
Supreme Court did not expressly pass on the merits, under
federal law, of Arrendondo’s claim that the trial court denied
him adequate time to produce his witnesses. And it cited
Harris in support of the proposition that “a district court has
no duty to assist a proper-person in subpoenaing witnesses,”
not to resolve a question of federal law. Such a citation does
not indicate that the Nevada Supreme Court considered a
federal argument never fairly presented to it.
4. In the alternative, Arrendondo asks us to excuse his
failure to exhaust the compulsory-process claim because his
appellate counsel was constitutionally ineffective.
“[C]ause . . . and actual prejudice” will excuse a state
prisoner’s default of “his federal claims in state court
pursuant to an independent and adequate state procedural
rule,” and constitutionally ineffective assistance of counsel
qualifies as cause. Coleman v. Thompson, 501 U.S. 722, 750,
752 (1991). Although “[p]rocedural default and failure to
exhaust are different concepts,” a failure to exhaust may
result in a procedural default. Sandgathe, 314 F.3d at 376;
see also Cassett v. Stewart, 406 F.3d 614, 621 n.5 (9th Cir.
2005). Such a default may occur if it is no longer possible
under state law to pursue the claim that a petitioner failed to
exhaust. See Beaty v. Stewart, 303 F.3d 975, 987 (9th Cir.
ARRENDONDO V. NEVEN 35
2002).9 If that were the case here, then demonstrating the
ineffective assistance of Arrendondo’s appellate counsel and
consequent prejudice would excuse Arrendondo’s procedural
default. See Coleman, 501 U.S. at 750, 752. But to assert
such an excuse in a federal habeas petition, a state prisoner
must first exhaust in state court the claim that his appellate
counsel was constitutionally inadequate. See Cockett v. Ray,
333 F.3d 938, 943 (9th Cir. 2003); Tacho v. Martinez,
862 F.2d 1376, 1381 (9th Cir. 1988).
Here, Arrendondo did not bring a state post-conviction
petition raising either his compulsory process claim on the
merits or a claim of ineffective assistance of his appellate
counsel with respect to the compulsory process issue. Both
paths were open to him, but he took neither. Pursing on post-
conviction review his federal compulsory process claim and
his claim of ineffective assistance of appellate counsel would
have exhausted both, notwithstanding the alleged failures of
his appellate counsel.
Arrendondo’s failure to raise either claim in state post-
conviction proceedings bars consideration of his compulsory
process claim now. Had Arrendondo sought post-conviction
relief on the claims, we would have been able to address the
compulsory process claim if it were cognizable in state court
on post-conviction review, and we could have considered
whether his appellate counsel was ineffective in not raising
the federal compulsory process claim. If we concluded that
appellate counsel was inadequate and that the inadequacy
9
“Properly exhausted claims may also be procedurally defaulted. If a
state court determines that a claim is procedurally barred, we are
precluded from reviewing the merits of the claim if the procedural bar is
adequate and independent.” Beaty, 303 F.3d at 987.
36 ARRENDONDO V. NEVEN
actually prejudiced Arrendondo, we could have addressed the
compulsory process claim on the merits even if the state
courts would not do so because of a procedural default. In
the absence of any state post-conviction petition on either of
the two related claims, however, we are entirely precluded
from hearing his compulsory process claim on the merits, as
Arrendondo did not pursue the claims through all available
state procedures. See 28 U.S.C. § 2254(b).10
IV.
For the reasons above, we AFFIRM the district court’s
judgment on the merits, holding the Nevada Supreme Court’s
ruling on the validity of Arrendondo’s waiver of the right to
counsel not unreasonable. And we AFFIRM the district
court’s dismissal of Arrendondo’s compulsory process claim.
AFFIRMED.
FERNANDEZ, Circuit Judge, concurring:
I concur in the result reached by the majority.
I agree that no clearly established Supreme Court law
requires a district court to do more than inform a defendant of
the maximum penalties for the offenses he was charged with
at the time he decided to represent himself. See Faretta v.
10
Arrendondo also asserts that the Nevada’s failure to oppose this
argument in its answering brief amounts to an implied concession. But
Nevada may only waive the exhaustion requirement expressly, see
28 U.S.C. § 2254(b)(3), which it has not done here.
ARRENDONDO V. NEVEN 37
California, 422 U.S. 806, 835, 95 S. Ct. 2525, 2541, 45 L. Ed.
2d 562 (1975); see also Iowa v. Tovar, 541 U.S. 77, 87–94,
124 S. Ct. 1379, 1387–90, 158 L. Ed. 2d 209 (2004).
Similarly, I agree that there is not a sufficient basis for
extending the Court’s prior holdings regarding advice on
maximum penalties to the issues presented in this case. See
White v. Woodall, ___ U.S. ___, ___, 134 S. Ct. 1697,
1705–07, 188 L. Ed. 2d 698 (2014). Moreover, Arrendondo
did not exhaust his compulsory process claim in the courts of
Nevada, and I agree that his failure to do so bars our
consideration of that claim.
However, I am reluctant to rule on issues that are not
necessary to our decision or to engage in lengthy discussions
or musings that need not be pursued at this time. Indeed, I
see great danger when we say more than is required to decide
the case before us; our doing so may well create unintended
reefs that others must navigate in the future if they are to
avoid disaster. For example, I find much of the discussion
contained in part II.A.2.a. essentially unnecessary, and that
the conclusion that any Tovar requirement must apply in the
trial context (whatever that means for the whole period from
the beginning of a case to its termination) is especially
unnecessary and problematic. Similarly, I see no need to
speculate about what we might or might not do if this were a
direct appeal, as the majority does at pages 25–27. And, I see
no need to opine on what we could or would do had
Arrendondo presented his case in a different manner in the
state courts. See page 35–36 of the majority opinion.
In short, while I wholeheartedly agree in the result and in
the analysis necessary to the result, I am not willing to run the
risk of unintended consequences that comes from saying too
much. I, therefore, do not join in the majority’s divagations
38 ARRENDONDO V. NEVEN
and unnecessary assertions. Thus, I respectfully concur in the
result only.