NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL MARION COTHAM, No. 23-2456 D.C. No. Petitioner - Appellant, 2:21-cv-00138-ROS v. MEMORANDUM* DAVID SHINN, Director, Arizona Department of Corrections, Rehabilitation, and Reentry; ATTORNEY GENERAL OF THE STATE OF ARIZONA,
Respondents - Appellees.
Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Argued and Submitted March 24, 2025 Phoenix, Arizona
Before: BERZON and BENNETT, Circuit Judges, and TUNHEIM, District Judge.**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. Petitioner-Appellant Michael Cotham was convicted in Arizona state court on
charges of child prostitution. The district court denied Cotham habeas relief. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
A federal court may only grant habeas relief on a state court judgment for two
reasons: (1) if the state court’s legal conclusions “resulted in a decision that 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) if the state
court’s factual conclusions were “unreasonable . . . in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). We review a district court’s
application of § 2254(d) de novo and its findings of fact for clear error. Robinson v.
Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
1. The state trial court’s factual determination that Cotham refused
transport and thereby violated the court’s order was not unreasonable. The state
court had ordered Cotham to appear the next morning and specifically warned him
that his Sixth Amendment rights were conditional on following the court’s orders.
The next morning, Cotham was nowhere to be found, so the trial court ordered him
transported to the courthouse and held a brief hearing on the matter. Cotham claimed
the delay was because of untreated back pain, but the court’s deputies stated that
Cotham had refused to be transported that morning to the courthouse. Weighing the
evidence and its own lengthy experience with Cotham as he navigated various
2 23-2456 pretrial conferences with the court, the court determined Cotham’s explanation was
not credible. The court also determined that, even if the excuses were valid, he had
still voluntarily chosen to violate the court’s order by refusing transport to the
courthouse in a timely manner. Keeping in mind the “substantial deference”
accorded state courts’ factual findings, Brumfield v. Cain, 576 U.S. 305, 314 (2015),
we find the state court’s factual finding that Cotham voluntarily refused transport in
violation of the court’s order was not unreasonable.
2. The Arizona Court of Appeals’ legal conclusion that Cotham waived
his right to self-representation by violating the court’s order to appear on time was
not contrary to clearly established federal law. The Arizona Court of Appeals
rejected Cotham’s Faretta 1 claim, holding that the trial court had not abused its
discretion in revoking Cotham’s self-representation rights after Cotham failed to
heed the court’s “clear, unambiguous and timely warnings” that he would lose those
rights if he refused transport. Cotham argues the Arizona Court of Appeals erred in
two ways: (1) by failing to evaluate whether Cotham’s conduct constituted “serious
and obstructionist misconduct,” and (2) by considering Cotham’s pre-trial conduct.
Neither are persuasive.
In Faretta, the Supreme Court held in a footnote that
1 Faretta v. California, 422 U.S. 806 (1975).
3 23-2456 [T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. . . .
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Here, in rejecting the Faretta
claim, the Arizona Court of Appeals did not use the “serious and obstructionist”
standard. Instead, it stated that a defendant may only represent himself “so long as
the defendant is able and willing to abide by the rules of procedure and courtroom
protocol.” The court then concluded that,
Given Cotham’s refusal to be transported on the first day of trial, notwithstanding the superior court’s clear, unambiguous and timely warnings that Cotham would lose the right to represent himself if he did not follow the court’s procedures and refused transport, the superior court did not abuse its discretion in revoking Cotham’s right of self-representation.
We have instructed federal courts in the Ninth Circuit to follow the “serious
and obstructionist misconduct” standard strictly and have clarified that a mere
“failure to comply with . . . rules” will not “result in a revocation of pro se status.”
United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989). But Arizona state courts
are not bound by our decisions. Interpreting Faretta to allow revoking self-
representation rights when a defendant fails to appear the morning of trial in direct
defiance of a court’s order is not clearly contrary to any Supreme Court decision.
4 23-2456 Cf. McKaskle v. Wiggins, 465 U.S. 168, 173 (1984) (“[A]n accused has a Sixth
Amendment right to conduct his own defense, provided only that he knowingly and
intelligently forgoes his right to counsel and that he is able and willing to abide by
rules of procedure and courtroom protocol.”); Martinez v. Ct. of Appeal of Cal., 528
U.S. 152, 162 (2000) (“[T]he government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own
lawyer.”).
Nor was the state court’s consideration of Cotham’s pretrial conduct an
unreasonable application of Supreme Court precedent. Indeed, even Flewitt itself
acknowledged that pretrial activity could be grounds to revoke self-representation
rights, provided “it affords a strong indication that the defendants will disrupt the
proceedings in the courtroom.” 874 F.2d at 674. Tellingly, Cotham points to no
Supreme Court case whatsoever to support his position that a state court cannot use
a defendant’s conduct during pretrial proceedings to inform a Faretta analysis.
3.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 13 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MICHAEL MARION COTHAM, No. 23-2456 D.C. No. Petitioner - Appellant, 2:21-cv-00138-ROS v. MEMORANDUM* DAVID SHINN, Director, Arizona Department of Corrections, Rehabilitation, and Reentry; ATTORNEY GENERAL OF THE STATE OF ARIZONA,
Respondents - Appellees.
Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding
Argued and Submitted March 24, 2025 Phoenix, Arizona
Before: BERZON and BENNETT, Circuit Judges, and TUNHEIM, District Judge.**
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John R. Tunheim, United States District Judge for the District of Minnesota, sitting by designation. Petitioner-Appellant Michael Cotham was convicted in Arizona state court on
charges of child prostitution. The district court denied Cotham habeas relief. We
have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
A federal court may only grant habeas relief on a state court judgment for two
reasons: (1) if the state court’s legal conclusions “resulted in a decision that 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) if the state
court’s factual conclusions were “unreasonable . . . in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). We review a district court’s
application of § 2254(d) de novo and its findings of fact for clear error. Robinson v.
Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004).
1. The state trial court’s factual determination that Cotham refused
transport and thereby violated the court’s order was not unreasonable. The state
court had ordered Cotham to appear the next morning and specifically warned him
that his Sixth Amendment rights were conditional on following the court’s orders.
The next morning, Cotham was nowhere to be found, so the trial court ordered him
transported to the courthouse and held a brief hearing on the matter. Cotham claimed
the delay was because of untreated back pain, but the court’s deputies stated that
Cotham had refused to be transported that morning to the courthouse. Weighing the
evidence and its own lengthy experience with Cotham as he navigated various
2 23-2456 pretrial conferences with the court, the court determined Cotham’s explanation was
not credible. The court also determined that, even if the excuses were valid, he had
still voluntarily chosen to violate the court’s order by refusing transport to the
courthouse in a timely manner. Keeping in mind the “substantial deference”
accorded state courts’ factual findings, Brumfield v. Cain, 576 U.S. 305, 314 (2015),
we find the state court’s factual finding that Cotham voluntarily refused transport in
violation of the court’s order was not unreasonable.
2. The Arizona Court of Appeals’ legal conclusion that Cotham waived
his right to self-representation by violating the court’s order to appear on time was
not contrary to clearly established federal law. The Arizona Court of Appeals
rejected Cotham’s Faretta 1 claim, holding that the trial court had not abused its
discretion in revoking Cotham’s self-representation rights after Cotham failed to
heed the court’s “clear, unambiguous and timely warnings” that he would lose those
rights if he refused transport. Cotham argues the Arizona Court of Appeals erred in
two ways: (1) by failing to evaluate whether Cotham’s conduct constituted “serious
and obstructionist misconduct,” and (2) by considering Cotham’s pre-trial conduct.
Neither are persuasive.
In Faretta, the Supreme Court held in a footnote that
1 Faretta v. California, 422 U.S. 806 (1975).
3 23-2456 [T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct. . . .
The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.
Faretta v. California, 422 U.S. 806, 834 n.46 (1975). Here, in rejecting the Faretta
claim, the Arizona Court of Appeals did not use the “serious and obstructionist”
standard. Instead, it stated that a defendant may only represent himself “so long as
the defendant is able and willing to abide by the rules of procedure and courtroom
protocol.” The court then concluded that,
Given Cotham’s refusal to be transported on the first day of trial, notwithstanding the superior court’s clear, unambiguous and timely warnings that Cotham would lose the right to represent himself if he did not follow the court’s procedures and refused transport, the superior court did not abuse its discretion in revoking Cotham’s right of self-representation.
We have instructed federal courts in the Ninth Circuit to follow the “serious
and obstructionist misconduct” standard strictly and have clarified that a mere
“failure to comply with . . . rules” will not “result in a revocation of pro se status.”
United States v. Flewitt, 874 F.2d 669, 674 (9th Cir. 1989). But Arizona state courts
are not bound by our decisions. Interpreting Faretta to allow revoking self-
representation rights when a defendant fails to appear the morning of trial in direct
defiance of a court’s order is not clearly contrary to any Supreme Court decision.
4 23-2456 Cf. McKaskle v. Wiggins, 465 U.S. 168, 173 (1984) (“[A]n accused has a Sixth
Amendment right to conduct his own defense, provided only that he knowingly and
intelligently forgoes his right to counsel and that he is able and willing to abide by
rules of procedure and courtroom protocol.”); Martinez v. Ct. of Appeal of Cal., 528
U.S. 152, 162 (2000) (“[T]he government’s interest in ensuring the integrity and
efficiency of the trial at times outweighs the defendant’s interest in acting as his own
lawyer.”).
Nor was the state court’s consideration of Cotham’s pretrial conduct an
unreasonable application of Supreme Court precedent. Indeed, even Flewitt itself
acknowledged that pretrial activity could be grounds to revoke self-representation
rights, provided “it affords a strong indication that the defendants will disrupt the
proceedings in the courtroom.” 874 F.2d at 674. Tellingly, Cotham points to no
Supreme Court case whatsoever to support his position that a state court cannot use
a defendant’s conduct during pretrial proceedings to inform a Faretta analysis.
3. The state court misapplied clearly established federal law when it
denied post-conviction relief for ineffective assistance of appellate counsel, but upon
de novo review, we find no such ineffective assistance.
The Supreme Court has held that where appellate counsel fails to file a merits
brief on the ground that there are no potentially meritorious appellate issues,
ineffective assistance of appellate counsel claims follow a modified version of the
5 23-2456 Strickland 2 test. Cotham must show (1) “that his counsel was objectively
unreasonable in failing to find arguable issues to appeal,” and (2) there was “a
reasonable probability that, but for his counsel’s unreasonable failure to file a merits
brief, he would have prevailed on his appeal.” Smith v. Robbins, 528 U.S. 259, 285
(2000) (citation omitted). The state court failed to cite to Robbins or to use the test
it commands, instead finding only that “appellate counsel had full discretion to raise
or not raise the issue of self-representation.” That’s incorrect. Under Robbins,
Cotham need only show that “a reasonably competent attorney would have found
one nonfrivolous issue warranting a merits brief,” a threshold that is “easier . . . to
satisfy” than if the attorney had discarded the issue in favor of others with a higher
likelihood of success. Id. at 288.
Reviewing de novo, we hold that Cotham would not have succeeded on
Robbins’s second prong. Binding Arizona precedent specifically held that a
defendant’s refusal to follow procedural rules and orders need not rise to the level
of “serious and obstructionist misconduct” to trigger revocation of self-
representation rights. State v. Whalen, 961 P.2d 1051, 1054 (Ariz. Ct. App. 1997).
Thus, even armed with counsel, Cotham’s Faretta claim was doomed to fail in the
Arizona Court of Appeals.
AFFIRMED.
2 Strickland v. Washington, 466 U.S. 668 (1984).
6 23-2456