David Chandler v. Sharon Blacketter

FILED
NOT FOR PUBLICATION FEB 24 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DAVID GEORGE CHANDLER, No. 09-35019
Petitioner - Appellant, D.C. No. 3:06-cv-01777-PK
v.
MEMORANDUM *
SHARON BLACKETTER,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Ancer L. Haggerty, Senior District Judge, Presiding
Submitted February 1, 2010 **
Seattle, Washington
Before: RYMER, GOULD and BYBEE, Circuit Judges.
Petitioner David George Chandler (“Chandler”) seeks habeas corpus relief
from his conviction in Oregon state court. We review the district court’s denial of
habeas relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000).
*
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).
Chandler carries the burden of proving by a preponderance of the evidence that he
is entitled to habeas relief, Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002),
and is only entitled to such relief if the state court decision he challenges was
“contrary to . . . clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). Since Chandler has failed to
identify any clearly established federal law, as determined by the Supreme Court,
holding that a defendant’s Sixth Amendment right to counsel cannot be forfeited
through particularly egregious conduct, the district court properly denied his
application.
Although the Supreme Court has never directly held that the right to counsel
can be forfeited, the Court has also never held to the contrary, and has held that
another fundamental Sixth Amendment right—the right to be present at one’s own
trial—can be forfeited through misconduct. See Taylor v. United States, 414 U.S.
17, 19-20 (1973) (per curiam); Illinois v. Allen, 397 U.S. 337, 342-43 (1970).
Between Chandler’s progression of court-appointed attorneys—all of whom were
apparently discharged due to Chandler’s machinations—and Chandler’s own boast
that he “kn[e]w of many ways to drag this on indefinitely, and . . . w[ould] not
hesitate to do so” in a letter to the prosecutor, there was ample evidence indicating
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that Chandler, like the defendant in Allen, was engaging in “conduct . . . to avoid
being tried on the charges brought against him.” Allen, 397 U.S. at 346.
Most importantly, Chandler has failed to identify—and we cannot find—any
Supreme Court case clearly establishing that the right to counsel cannot be
forfeited through a defendant’s misconduct. See 28 U.S.C. § 2254(d)(1); Crater v.
Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007) (“[I]f habeas relief depends upon the
resolution of an ‘open question in [Supreme Court] jurisprudence,’ § 2254(d)(1)
precludes relief.” (quoting Carey v. Musladin, 549 U.S. 70, 76 (2006)).
AFFIRMED.
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