Gregory Colbert v. Michael Martel

FILED
NOT FOR PUBLICATION OCT 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY COLBERT, No. 12-16105
Petitioner - Appellant, D.C. No. 5:10-cv-01675-RMW
v.
MEMORANDUM*
MICHAEL MARTEL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted September 9, 2014
San Francisco, California
Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.
Petitioner Gregory Colbert appeals from the district court judgment denying
his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Colbert
challenges his California convictions for first-degree murder and possession of a
firearm by a felon, arguing that he was denied his constitutional right to self-
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
representation. We have jurisdiction pursuant to 28 U.S.C. § 2253, and, under de
novo review, we affirm.
We must deny Colbert’s habeas petition unless the decision of the California
Court of Appeal “(1) . . . was contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the
United States; or (2) . . . was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d). Colbert asserts at the outset that the only issue in this case is whether
the state court decision was based on an unreasonable determination of the facts
under Section 2254(d)(2), but several of his specific arguments attack the legal
approach used by the California Court of Appeal, which we must analyze under
Section 2254(d)(1). Regardless, Colbert’s petition fails to meet the standard for
either prong.
Under the first test of Section 2254(d), the decision of the California Court
of Appeal was not contrary to any principle of law clearly established by Supreme
Court precedent, nor did it involve an unreasonable application of any such
principle. The tension between the clearly established right to counsel, Iowa v.
Tovar, 541 U.S. 77, 80-81 (2004), and the clearly established right to self-
representation, Faretta v. California, 422 U.S. 806, 807 (1975), necessarily affords
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state courts broad leeway under habeas review in the area between the two rights.
Marshall v. Rodgers, 133 S. Ct. 1446, 1449-51 (2013) (per curiam). The approach
taken by California law generally and followed by the Court of Appeal specifically
in this case—to honor unequivocal requests for self-representation while drawing
every inference against a waiver of the right to counsel—falls well within the
latitude allowed by Supreme Court precedent.
Likewise, under the second test of Section 2254(d), the decision of the
California Court of Appeal was not based on an unreasonable determination of the
facts presented in state court. For example, the fact that Colbert used his state-
provided attorney to file a motion shortly after his initial request for self-
representation was granted casts serious doubt on whether Colbert’s preference for
self-representation remained as clear and unequivocal as that displayed by the
defendant in Faretta, regardless of his reasons for doing so. See McKaskle v.
Wiggins, 465 U.S. 168, 182 (1984). Petitioner’s reliance on Adams v. Carroll, 875
F.2d 1441 (9th Cir. 1989), is misplaced because he has not met his burden under
AEDPA. See Stenson v. Lambert, 504 F.3d 873, 881, 883 (9th Cir. 2007). In light
of all of the evidence presented, it was not unreasonable for the California Court of
Appeal to determine under the legal principles discussed above that Colbert’s
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subsequent actions did not meet the standard to continue to invoke his Faretta right.
AFFIRMED.
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