Harum Patterson v. Debbie Asuncion

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 15, 2018
• Docket: 16-55391
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HARUM PATTERSON, No. 16-55391

Petitioner-Appellant, D.C. No. 2:15-cv-04922-CJC-KK v.

DEBBIE ASUNCION, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Cormac J. Carney, District Judge, Presiding

Submitted March 6, 2018** Pasadena, California

Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.

Petitioner Harum Patterson (“Patterson”) appeals from the district court’s

denial of his petition for a writ of habeas corpus. We have jurisdiction under 28

U.S.C. § 2253, and we affirm.

* 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). 1. The California Court of Appeal did not apply Faretta v. California, 422 U.S.

806 (1975), unreasonably in affirming the trial court’s decision that Patterson had

abandoned his March 28, 2012 motion for self-representation. Arguing that

Faretta prohibits trial courts from finding such motions abandoned, Patterson

contends that the trial court was required to grant his motion or initiate a colloquy

to further establish that he understood the dangers of self-representation. But in

Sandoval v. Calderon, 241 F.3d 765, 775 (9th Cir. 2001), we recognized that a

defendant may withdraw his request for self-representation and that the trial court

need not “engage in a personal colloquy with the defendant” to find the motion

withdrawn.

2. The California Court of Appeal’s decision that Patterson abandoned his

March 28, 2012 Faretta motion did not rest on an unreasonable determination of

the facts in light of the evidence presented in the state court proceeding.

Patterson first contends that the trial court’s fact-finding process was defective

because the court determined that he had abandoned his March 28, 2012 motion in

his absence, and without providing him notice that it would be ruled on, at a

hearing on July 9, 2012. The trial court did not, however, make such a ruling on

July 9, 2012. Instead, the July 9, 2012 hearing was held to consider Patterson’s

second request for self-representation made earlier that day. The court mentioned

2 Patterson’s March 28, 2012 motion (which the record suggests he withdrew at a

hearing on April 17, 2012) only in reference to the second Faretta motion.

Next, Patterson argues that the California Court of Appeal erroneously relied

on (1) his subsequent appearances with counsel, (2) his counsel’s statement that

Patterson no longer wished to pursue the motion, and (3) the master calendar

judge’s statement that there were no such pending motions. “[T]he failure of a

defendant to renew a self-representation request [provides] support for the

conclusion that the request was equivocal,” or abandoned. United States v.

Hernandez, 203 F.3d 614, 623 (9th Cir. 2000), abrogated on other grounds by

Indiana v. Edwards, 554 U.S. 164 (2008). Additionally, trial courts may rely on

counsel’s statement that a client wishes to withdraw a Faretta motion. Sandoval,

241 F.3d at 774–75. And, finally, the minor factual inconsistencies to which

Patterson points do not overcome the “daunting standard” that 28 U.S.C.

§ 2254(d)(2) imposes to render a factual finding unreasonable. Taylor v. Maddox,

366 F.3d 992, 1000 (9th Cir. 2004), overruled on other grounds by Murray v.

Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014). The California Court of

Appeal’s decision was therefore supported by the record.

3. Remand to the district court is not required because the magistrate judge,

whose report and recommendation the district court adopted, reviewed the

“relevant portions of the record on which the state court based its judgment.”

3 Nasby v. McDaniel, 853 F.3d 1049, 1052 (9th Cir. 2017). Patterson argues that

remand is required because the magistrate judge mistakenly thought that a

transcript from one of the trial court’s hearings was absent from the record. But

that transcript was not relevant to the magistrate judge’s review of the California

Court of Appeal’s decision finding Patterson’s March 28, 2012 Faretta motion

abandoned. For this determination, the California Court of Appeal relied on

minute orders of Patterson’s subsequent appearances with counsel, as well as a

different transcript containing the statements of his counsel and the master calendar

judge.

4. Finally, the California Court of Appeal’s decision to affirm the trial court’s

denial of Patterson’s July 9, 2012 Faretta motion did not rest on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceeding. As a threshold matter, it was not an unreasonable application of

Faretta for the state courts to find Patterson’s July 9, 2012 motion untimely. See

Marshall v. Taylor, 395 F.3d 1058, 1060–61 (9th Cir. 2005).

Recognizing that Faretta protects only timely motions, see Stenson v.

Lambert, 504 F.3d 873, 884–85 (9th Cir. 2007), Patterson argues that he is

nonetheless entitled to relief because the state courts allegedly misapplied the

California Supreme Court’s decision in People v. Windham, 560 P.2d 1187, 1191

4 n.5 (Cal. 1977) (discussing when state courts may use their discretion to grant

untimely Faretta motions). This argument fails.

Patterson relies on Brumfield v. Cain, 135 S. Ct. 2269 (2015), to argue that a

“state’s failure to follow its own standards in implementing constitutional

guarantees constitutes an unreasonable finding of fact” for which federal habeas

courts may grant relief. But this interpretation of Brumfield ignores the unique

facts of that case. In Brumfield, the habeas petitioner moved to have his death

sentence vacated after Atkins v. Virginia, 536 U.S. 304 (2002), held that the Eighth

Amendment prohibits the execution of intellectually disabled persons. The Atkins

Court explicitly held that state standards of intellectual disability would govern

which offenders were ineligible for the death penalty under federal constitutional

law, id. at 317, and did not authorize federal habeas courts to review a state court’s

application of its own laws. We therefore decline to consider Windham.

AFFIRMED.