David Abara v. Jack Palmer

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 11, 2019
• Docket: 17-17103
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 11 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID ABARA, No. 17-17103

Petitioner-Appellant, D.C. No. 3:10-cv-00688-HDM-VPC v.

JACK PALMER; ATTORNEY GENERAL MEMORANDUM* FOR THE STATE OF NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding

Submitted September 9, 2019** San Francisco, California

Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.

David Abara appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging the Nevada Supreme Court’s determination that

his waiver of right to counsel was valid under Faretta v. California, 422 U.S. 806,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 835 (1975). We affirm.

We review de novo the district court’s decision to grant or deny a petition

for habeas corpus. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We may

grant habeas relief to a state prisoner “on a claim ‘adjudicated on the merits’ in

state court only if the decision ‘was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.’” Waddington v. Sarausad, 555 U.S. 179, 190 (2009)

(quoting 28 U.S.C. § 2254(d)(1)). Federal habeas relief is unavailable so long as

‘“fairminded jurists could disagree’ on the correctness of the state court’s

decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

Abara argues that the Nevada Supreme Court unreasonably applied Faretta

to conclude that he had voluntarily chosen to represent himself because Abara’s

only other option besides self-representation was representation by counsel with

whom he had an irreconcilable conflict. We disagree.

Abara’s contention turns on whether he had an irreconcilable conflict with

his counsel. To prove an actual conflict, Abara must show that there was “an

incompatibility between . . . the lawyer’s own private interest and those of the

client.” Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc).

“[T]here is no Sixth Amendment right to ‘a meaningful relationship between an

2 accused and his counsel,” id. at 1210-11 (quoting Morris v. Slappy, 461 U.S. 1, 14

(1983)), so a showing that the conflict was based in the defendant’s having

“refuse[d] to cooperate because of dislike or distrust” without any evidence of

other actual conflicts of interest is insufficient to prove a Sixth Amendment

violation. Id. at 1211.

Here, the state trial court conducted a lengthy inquiry into the alleged

conflicts before trial. Abara’s complaint that his lawyer had failed to communicate

with him was undercut when he did not dispute his lawyer’s statements that they

were in communication, and his complaint generally appeared to be based

primarily on frustration with case delays and a competency evaluation conducted

against his will, neither of which demonstrate an irreconcilable conflict. Abara’s

other assertions that his lawyer had previously worked as a prosecutor and worked

as an independent contractor with a large law group that Abara had sued as part of

a class action similarly failed to identify a specific “incompatibility.” As a result,

the Nevada Supreme Court did not unreasonably apply clearly established law to

conclude that Abara’s decision to represent himself was voluntary.

Abara separately contends that the Nevada Supreme Court unreasonably

erred in concluding that Abara had voluntarily, knowingly, and intelligently

waived his right to counsel to represent himself because Abara was not competent

to do so under Indiana v. Edwards, 554 U.S. 164 (2008). Even if Edwards applied

3 retroactively to cases like Abara’s whose direct appeal had concluded by the time it

was decided (which the Supreme Court has not held it does), Abara misstates

Edwards’s holding. The Court held in Edwards that “the Constitution permits

States to insist upon representation by counsel for those competent enough to stand

trial . . . but who still suffer from severe mental illness to the point where they are

not competent to conduct trial proceedings by themselves.” 554 U.S. at 178

(emphasis added). Edwards did not take away a state’s ability to allow self-

representation so long as the defendant is competent to stand trial. The Supreme

Court’s decision in Edwards therefore does not render erroneous the Nevada

Supreme Court’s determination that Abara could lawfully represent himself.

AFFIRMED.