KEVIN A. BROWN, No. 2:20-cv-0991-KJM-SCR Petitioner, v. FINDINGS AND RECOMMENDATIONS Respondent. Petitioner is a state prisoner representing himself in this habeas corpus action. He challenges his 2016 convictions in Sacramento County Superior Court for various sex crimes and robbery. On April 18, 2024, the Ninth Circuit Court of Appeals remanded this matter for further proceedings, including “consideration of the exhaustion issues and whether to issue a stay under Rhines v. Weber, 544 U.S. 269 (2005),” on petitioner’s pretrial Faretta claim requesting the right to represent himself. ECF No. 44 at 2; see also Faretta v. California, 422 U.S. 806 (1975). The parties have fully briefed this issue following remand. ECF Nos. 58, 61-62. For the reasons explained below, the undersigned recommends granting petitioner a Rhines stay and abeyance. I. Procedural History To understand the present posture of this case, it is necessary to revisit the state and federal proceedings that have occurred to date. Following his January 8, 2016 sentencing, petitioner appealed his conviction to the California Court of Appeal. See ECF No. 20-2 at 41-42 (Felony Abstract of Judgment). Appellate counsel raised four separate issues, including whether the trial court violated petitioner’s right to represent himself under the Sixth and Fourteenth Amendments when it denied his post-trial Faretta motion as untimely. See ECF No. 20-5 at 45- 51 (Appellant’s Opening Brief). That Faretta motion had been made six weeks after trial, on the date initially set for petitioner’s sentencing hearing. The California Court of Appeal affirmed the judgment, finding the trial court did not abuse its discretion in denying the post-trial Faretta request as untimely. ECF No. 20-8. The California Supreme Court denied the petition for review without comment. ECF No. 20-10. During direct appeal proceedings, petitioner filed one complete round of state habeas petitions while representing himself. ECF Nos. 20-11; 20-13; 20-15. These state habeas petitions raised various challenges to the preliminary hearing and his trial attorney’s effectiveness during the preliminary hearing. On May 4, 2020, following the conclusion of his direct appeal, petitioner filed the instant federal habeas petition. ECF No. 1. For the first time, petitioner challenged the trial court’s denial of his Faretta requests made prior to his initial sentencing hearing. ECF No. 1 at 20, 35. Petitioner specifically challenged the denial of two separate Faretta requests and included the trial court transcripts from each one. The first Faretta request was made on November 9, 2015, during the course of voir dire, but before the jury was sworn.1 ECF No. 1 at 585-608 (Reporter’s Transcript). The second Faretta request was made on November 18, 2015, at the end of the prosecution’s case in chief. ECF No. 1 at 610-617. Respondent filed an answer to the § 2254 petition on December 2, 2020, but did not address the merits of these Faretta claims or assert that they were unexhausted in state court. See ECF No. 24. On June 22, 2021, the previously assigned magistrate judge issued Findings and Recommendations to deny the habeas petition on the merits. The magistrate judge assumed, without deciding, that the pretrial Faretta claim was properly exhausted. ECF No. 31 at 41. The district judge adopted the Findings and Recommendations in full on September 28, 2021 and
1 Hereinafter referred to as “the pretrial Faretta claim.” dismissed the habeas petition. ECF No. 38. Petitioner appealed the judgment and the Ninth Circuit Court of Appeals granted a certificate of appealability as to whether the state trial court violated petitioner’s constitutional rights by denying his pretrial Faretta request. On April 18, 2024, the Ninth Circuit remanded this matter for further proceedings “including consideration of the exhaustion issues and whether to issue a stay under Rhines v. Weber, 544 U.S. 269 (2005)” on petitioner’s pretrial Faretta claim ECF No. 44. II. Scope of Remand Under the rule of mandate, a lower court receiving a mandate from a higher court “cannot vary it or examine it for any other purpose than execution.” United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1996) (citation and quotation omitted). On remand, the higher court’s mandate “controls the [lower court’s] resolution of issues ‘decided either expressly or by necessary implication’” in the higher court’s order. Magnesystems, Inc. v. Nikken, Inc.., 933 F. Supp. 944, 949 (C.D. Cal. 1996) (quoting Quern v. Jordan, 440 U.S. 332, 347 n. 18 (1979)). In this case, there is an inherent tension between the Ninth Circuit’s mandate and this court’s prior ruling on the merits of petitioner’s pretrial Faretta claim. The magistrate judge previously assigned to this matter bypassed the exhaustion issue and reviewed petitioner’s pretrial Faretta claim on the merits. See ECF No. 31 at 36-42. In so doing, that magistrate judge concluded that there was a state court ruling, albeit a silent one, on the pretrial Faretta claim to which AEDPA deference could be applied. See id. at 41-42 (applying the Harrington v. Richter, 562 U.S. 86 (2011), presumption that a state court denied a claim on the merits in the absence of any indication of a state law procedural bar). The Ninth Circuit remanded for further proceedings, to include “consideration of the exhaustion issues and whether to issue a stay under Rhines” on petitioner’s pretrial Faretta claim. ECF No. 44 at 2. The necessary implication of the Ninth Circuit’s remand directive is that this court must reconsider its prior denial of relief on the merits of the pretrial Faretta claim. There is no other way to interpret the Ninth Circuit mandate in this case that would not make further proceedings completely superfluous. Determining the appropriateness of a Rhines stay includes reviewing whether the unexhausted claim is “plainly meritless.” See Rhines, 544 U.S. at 278. Based on this court’s prior ruling on the merits, a Rhines stay would be foreclosed. Accordingly, the scope of remand in this case includes, by implication, a reconsideration of the underlying merits of petitioner’s pretrial Faretta claim. See Cote, 51 F.3d at 181 (emphasizing that “a district court could not revisit its already final determinations unless the mandate allowed it”). Viewed in this manner, the undersigned proceeds to faithfully implement the mandate of the Ninth Circuit. III. Supplemental Briefs on Remand In his supplemental brief, petitioner indicates that he was unable to properly exhaust the pretrial Faretta claim due to the ineffective assistance of his counsel on direct appeal in state court. ECF No. 58 at 19. He “unsuccessfully tried to get counsel to raise those counts in her argument but she refused to acknowledge those counts.” Id. at 2. In addition, petitioner submitted his correspondence with appellate counsel and a declaration from her acknowledging the lack of any strategic reason for excluding the pretrial Faretta claim. Petitioner appears to argue, in the alternative, that his pretrial Faretta claim is technically exhausted but procedurally defaulted due to an implied state law bar prohibiting second or successive state habeas petitions. ECF No. 58 at 19. Since petitioner filed one full round of state habeas petitions during the pendency of his direct appeal, he assumes that the state court would bar a new petition. Id. at 73-74. However, to explain his delay in pursuing this state relief via state habeas, petitioner again asserts the ineffective assistance of his appellate counsel. Thus, the procedural default of this claim should be excused because there was no logical or tactical reason why appellate counsel would raise a post-trial Faretta challenge while not also including the pretrial Faretta claim. Id. at 74. Finally, petitioner asserts that respondent has waived the exhaustion requirement since it was not raised in the answer to the § 2254 petition. ECF No. 58 at 67; see also ECF No. 24 (Answer). Petitioner further points out that exhaustion is an affirmative defense and respondent’s failure to raise it constitutes a waiver thereof. ECF No. 58 at 71. In addressing petitioner’s alternative argument that the pretrial Faretta claim is procedurally defaulted, respondent argues that appellate counsel’s ineffectiveness does not constitute cause to excuse this default. ECF No. 61. Based on this analysis, respondent argues that a stay is a moot point, even though he concedes that state court review of the claim is still available if the federal court finds petitioner’s procedural default excused. ECF No. 61 at 2-3. As to the merits of the pretrial Faretta claim, respondent suggests that “the trial judge did sub silento rule that on November 9, 2015, the Sixth Amendment no longer guaranteed Petitioner a right of self-representation.” ECF No. 61 at 7 (emphasis in original). Notably, respondent does not acknowledge or even address his failure to argue lack of exhaustion in the original answer to petitioner’s § 2254 petition, much less to address petitioner’s pretrial Faretta claim on the merits at that juncture. See ECF No. 24. In reply, petitioner clarifies that he does request a Rhines stay and also argues, in the alternative, that any procedural default of his Faretta claim is excused. ECF No. 62 at 2. Regarding the merits of the claim, petitioner points out that “the trial court didn’t deny a Faretta request on the merit [sic], she denied a Marsden motion on the merit [sic]. The hidden agenda is not that she could of [sic] denied the [Faretta] request as untimely, it’s that she completely ignored that request.” Id. at 8. Even though a large portion of the parties’ briefs focused on the issue of procedural default, that issue is not before the court on remand as explained supra. The court will not then analyze procedural default. Instead, the court will focus its analysis on the proper scope of the Ninth Circuit’s remand order which concerns exhaustion and the availability of a Rhines stay and abeyance. IV. Exhaustion of State Court Remedies Before this court can grant relief on any habeas claim, petitioner must have exhausted his state court remedies. 28 U.S.C. § 2254(b)(1)(A). This exhaustion requirement is based on the important principle of state court comity which undergirds federal habeas corpus jurisprudence. See Rose v. Lundy, 455 U.S. 509, 518-19 (1982) (federal habeas petitioners must “seek full relief first from the state courts, thus giving those courts the first opportunity to review all claims of constitutional error”). ///// A. Legal Standards A petitioner satisfies this exhaustion requirement by providing the highest state court with a full and fair opportunity to consider each habeas claim before presenting it to the federal court. Picard v. Connor, 404 U.S. 270, 276 (1971); Middleton v. Cupp, 768 F.2d 1083, 1086 (9th Cir. 1985). The prisoner must “fairly present” both the operative facts and the federal legal theory supporting his federal claim to the state's highest court, “thereby alerting that court to the federal nature of the claim.” Baldwin v. Reese, 541 U.S. 27, 29 (2004); see Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007). A federal court may not entertain a habeas petition unless the petitioner has exhausted state remedies for each of the claims raised therein. Rose, 455 U.S. at 515-22 (establishing the total exhaustion rule). B. Analysis In this case, petitioner conceded on appeal that his pretrial Faretta claim had not been presented to any state court prior to filing his § 2254 petition. See ECF No. 44. This court has reviewed petitioner’s state habeas petitions and concludes that they did not include the pretrial Faretta claim. Moreover, respondent has not explicitly waived the exhaustion requirement, despite not including it in the answer. See 28 U.S.C. § 2254(b)(3) (“A State shall not be deemed to have waived the exhaustion requirement … unless the State, through counsel, expressly waives the requirement.”). A waiver of exhaustion, thus, may not be implied or inferred. Id. Based on the record before the court, the pretrial Faretta claim has not been properly exhausted in state court. V. Stay and Abeyance A. Legal Standards A district court may stay a habeas petition containing an unexhausted claim for relief if the petitioner demonstrates (1) good cause for the failure to previously exhaust the claim in state court, (2) the claim at issue potentially has merit, and (3) petitioner has been diligent in pursuing relief. See Rhines, 544 U.S. at 278. If petitioner fails to establish any of these three factors, then a Rhines stay is not appropriate. Rhines does not define what constitutes good cause for failure to exhaust. The Supreme Court has noted in dicta that “[a] petitioner’s reasonable confusion about whether a state filing would be timely will ordinarily constitute ‘good cause’” to excuse his failure to exhaust, Pace v. DiGuglielmo, 544 U.S. 408, 416 (2005), and the Ninth Circuit has held that a showing of good cause does not require “extraordinary circumstances.” Jackson v. Roe, 425 F.3d 654, 661-62 (9th Cir. 2005). More recently, the Ninth Circuit explained that “[a]n assertion of good cause without evidentiary support will not typically amount to a reasonable excuse justifying a petitioner’s failure to exhaust.” Blake v. Baker, 745 F.3d 977, 982 (9th Cir. 2014). However, “a reasonable excuse, supported by sufficient evidence” to justify a petitioner’s failure to exhaust, will constitute good cause. Blake, 745 F.3d at 982. As to the second factor, potential merit, “[a] federal habeas petitioner must establish that at least one of his unexhausted claims is not ‘plainly meritless’ in order to obtain a stay under Rhines.” Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017) (quoting Rhines, 544 U.S. at 277). Finally, in order to be entitled to a Rhines stay, petitioner must not have engaged in “abusive litigation tactics or intentional delay.” See Rhines, 544 U.S. at 278. In evaluating this factor, a court may consider a habeas petitioner’s “lack of resources and legal training.” Bynoe v. Baca, 966 F.3d 972, 981-82 (9th Cir. 2020) (reviewing the diligence requirement under Rule 60(b) of the Federal Rules of Civil Procedure in the context of a pro se habeas litigant who lacked resources and legal training). B. Analysis As explained in further detail below, the undersigned finds that petitioner satisfies the three requirements for obtaining a stay and abeyance under Rhines to return to state court to properly exhaust his pretrial Faretta claim. 1. Good Cause for Failure to Exhaust In evaluating petitioner’s cause for failing to exhaust his pretrial Faretta claim, the court looks to the relevant time period in which exhaustion would have been proper in state court based on the nature of the claim.2 The pretrial Faretta claim arose during voir dire proceedings in the trial court and was apparent from the record. As such, this was a claim that should have been raised and exhausted on direct appeal. Petitioner explains in his supplemental briefs that he specifically asked his appellate counsel to include the pretrial Faretta claim in the opening brief. Petitioner thus demonstrates a reasonable excuse based on the ineffectiveness of his appellate counsel for his failure to exhaust this claim. See Blake, 745 F.3d at 982 (finding that good cause is established when petitioner submits a “reasonable excuse, supported by sufficient evidence, to justify that failure” to previously exhaust state court remedies). He has supplemented the record with evidence demonstrating that appellate counsel had no reasonable nor tactical basis upon which to exclude the pretrial Faretta claim while raising a post-trial Faretta challenge. ECF No. 1 at 788; ECF No. 58 at 167-168; see also Blake, 745 F.3d at 982. Appellate counsel concedes as much. See ECF No. 58 at 168 (Appellate Counsel Declaration indicating that she “did not have a strategic or tactical reason for declining to raise a claim….”). Respondent does not suggest, nor can the court conceive of, any tactical reason for including the weaker post-trial Faretta claim in the opening brief without also raising petitioner’s pretrial invocation of Faretta. On this record, petitioner has adequately demonstrated good cause for failing to exhaust the pretrial Faretta claim based on appellate counsel’s ineffectiveness. See Blake, 745 F.3d at 983 (holding that “district court abused its discretion in concluding [petitioner] failed to establish good cause” where “post- conviction counsel’s performance was defective”); Wagner v. Smith, 581 F.3d 410, 419 n. 4 (6th Cir. 2009) (noting that “[a]t the very least, Petitioner seems to have a compelling ‘good cause’ argument that his appellate counsel was ineffective for failing to raise these claims on appeal”);
2 This same “relevant time frame” analysis has been used to determine the statute of limitations as well as procedural default issues in federal habeas petitions. See Runningeagle v. Ryan, 825 F.3d 970, 980 (9th Cir. 2016 (reviewing the relevant time period under state law for raising ineffective assistance of counsel claims); Laws v. Lamarque, 351 F.3d 919, 923 (9th Cir. 2003) (reviewing petitioner’s mental competence between 1996 and 2000 as the relevant time period for statutory and equitable tolling purposes); Fields v. Calderon, 125 F.3d 757, 760 (9th Cir. 1997) (analyzing the adequacy of a procedural bar by reviewing the relevant time period “at the time the claim should have been raised”); Calderon v. Bean, 96 F.3d 1126, 1130 (9th Cir. 1996) (holding that the relevant time period for determining whether a procedural rule was firmly established and regularly followed by state courts is “the time of purported procedural default”). Phelps v. Peery, Case No. 22-cv-01729-JSC, 2022 WL 4021712, at *3 (N.D. Cal. Sept. 2, 2022) (finding that the “failure by counsel to include claims… in the opening appellate brief… which would have garnered their merits review and exhausted them, constitutes ‘good cause’ under the first prong of Rhines”). Accordingly, petitioner has met the first prong of the Rhines standard. 2. Potential Merit of Pretrial Faretta Claim To meet the second requirement for a stay, petitioner must demonstrate that the pretrial Faretta challenge is not “plainly meritless.” Rhines, 544 U.S. at 277. Here again, principles of comity and federalism dictate that federal courts tread lightly in reviewing the merits of an unexhausted claim. See Dixon v. Baker, 847 F.3d 714, 722 (9th Cir. 2017). Despite the need to proceed carefully, this court may deny a stay on the basis of this requirement “only when it is perfectly clear” that petitioner has not raised even a colorable Faretta claim to warrant a stay of these proceedings. See Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). Over fifty years ago in Faretta v. California, 422 U.S. 806 (1975), the Supreme Court announced that the Sixth Amendment guarantees criminal defendants charged in state court with the right to waive counsel and to represent themselves in order to conduct the defense of their own choosing upon a timely request before the trial court.3 “The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendant—not an organ of the State interposed between an unwilling defendant and his right to defend himself personally.” Faretta, 422 U.S. at 820. The right to self- representation cannot be denied even if the defense is conducted to the defendant’s own detriment. Id. at 834. A defendant’s “choice must be honored out of ‘that respect for the individual which is the lifeblood of the law.’” Id. (citing Illinois v. Allen, 397 U.S. 337, 350-351 (1970) (Brennan, J., concurring)). Before granting the right to self-representation, a trial court must ensure that the defendant knowingly and voluntarily waives his right to be represented by a lawyer; the waiver must also be unequivocal. See Faretta, 422 U.S. at 835; Godinez v. Moran, 509 U.S. 389, 400 (1993). 3 More specifically, this right to self-representation is a requirement of the Due Process Clause of the Fourteenth Amendment. See Faretta, 422 U.S. at 818. “Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.” Faretta, 422 U.S. at 835 (citation and quotations omitted). Although no specific colloquy is constitutionally mandated, see Iowa v. Tovar, 541 U.S. 77, 88 (2004), the Ninth Circuit requires three critical elements for a valid Faretta waiver: “A waiver of counsel will be considered knowing and intelligent only if the defendant is made aware of (1) the nature of the charges against him; (2) the possible penalties; and (3) the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’” United States v. Farhad, 190 F.3d 1097 (9th Cir. 1999) (per curiam) (citations and quotations omitted). These critical elements of a Faretta colloquy should be made in open court and on the record. Id. Based on the transcript of the November 9, 2015 hearing, the trial court ignored petitioner’s request to represent himself without engaging petitioner in any type of colloquy to determine whether his unequivocal request was knowing and voluntary. See ECF No. 1 at 586, 591 (Faretta requests during November 9, 2015 Marsden hearing). Rather, the trial court continued with the Marsden hearing, which concerned petitioner’s request to substitute his court- appointed counsel. Ultimately, the trial court denied petitioner’s Marsden motion. However, at no time, did the trial court return to the issue of petitioner’s request to represent himself after denying the Marsden motion. Compare ECF No. 1 at 620-626 (considering petitioner’s November 18, 2015 Faretta request after trial had commenced and denying it as untimely after denying petitioner’s Marsden motion). The trial court’s failure to conduct any Farreta colloquy following petitioner’s unequivocal request to represent himself renders the claim potentially meritorious. See Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012) (affirming the grant of habeas relief and emphasizing that “[i]t was the trial court, and not [defendant], which failed to respond properly to the discussion of the Faretta motion. Under Faretta, the trial court should have initiated a colloquy….”); Moore v. Haviland, 531 F.3d 393 (6th Cir. 2008) (finding that the trial court’s failure to engage defendant in a colloquy to address his mid-trial Faretta request was an unreasonable application of federal law warranting habeas relief). A Faretta claim is not subject to harmless error review. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8 (1984). The denial of a criminal defendant’s right of self- representation is per se reversible error. See id.; see also Cordova, 346 F.3d 924 (9th Cir. 2003) (finding state court’s harmless error analysis to be contrary to clearly established Sixth Amendment Supreme Court precedent when defendant invoked his Faretta right of self- representation, the trial court did not provide proper admonishments against waiving his right to counsel, and he proceeded to represent himself at trial). Therefore, it is not necessary to determine whether this error was harmless in evaluating the potential merit of the claim. Based on this analysis, the undersigned finds that the pretrial Faretta claim meets the second prong of Rhines and is not plainly meritless.4 3. Petitioner’s Diligence in Pursuing Relief Respondent does not argue, and the record does not support, a lack of diligence on the part of petitioner in pursuing relief based on the pretrial Faretta claim. In fact, petitioner repeatedly requested that his appellate counsel raise this claim as part of his direct appeal. That request was not heeded and, upon the conclusion of direct appeal, petitioner raised his pretrial Faretta claim for the first time in this court on federal habeas review. Normally, petitioner could have pursued his pretrial Faretta claim by filing a state habeas petition after his direct appeal had been decided. However, in this case, petitioner filed an entire round of state habeas petitions before his direct appeal had concluded. See ECF Nos. 20-11; 20-13; 20-15. Although filing state habeas petitions sooner rather than later was not the wisest of strategies in this case, it certainly cannot be
4 For this reason, reconsideration of this court’s prior ruling on the merits of the pretrial Faretta claim is warranted because it was premised upon the proposition that some state court actually adjudicated petitioner’s pretrial Faretta claim. In fact, as explained above, not even the trial court ruled that claim. To frame this in terms of federal habeas doctrine, there was not just one silent state court denial of habeas relief, but an underlying silent denial by the trial court when petitioner initially invoked his right to represent himself. Even the AEDPA does not countenance the denial of habeas relief on multiple silent state court decisions. See ECF No. 31 at 41-42 (assuming without deciding that the California Supreme Court’s denial of habeas relief was a “silent denial”); see also Harrington, 562 U.S. 86, 98-99 (2011) (explaining that silent state habeas denials are presumed to be based on the merits of the claims “in the absence of any indication or state-law procedural principles to the contrary”). described as a lack of diligence on petitioner’s part. As a result, this court finds that petitioner meets the diligence requirement. In conclusion, the undersigned finds that petitioner has met the requirements for a Rhines stay and abeyance in order to return to state court to exhaust his pretrial Faretta claim. VI. Plain Language Summary for Party Proceeding Without a Lawyer Since petitioner is representing himself in this case, the court wants to make sure that the words of this order are understood. The following information is meant to explain this order in plain English and is not intended as legal advice. The undersigned has concluded that you meet the three requirements for obtaining a Rhines stay of your federal habeas petition while you return to state court to exhaust your pretrial Faretta claim. This means that your federal case will be paused while you ask the state court for relief. If you disagree with this recommendation, you have 21 days to explain why it is not the correct outcome in your case. Label your explanation “Objections to Magistrate Judge’s Findings and Recommendations.” The district court judge assigned to your case will review any objections and make the final decision in your case. Accordingly, IT IS HEREBY RECOMMENDED that: 1. Petitioner’s request for a Rhines stay in order to exhaust his pretrial Faretta claim in state court be granted. 2. Petitioner be directed to file a status report with this court every 90 days indicating what step(s) he has taken to exhaust his state court remedies with respect to his pretrial Faretta claim. 3. Petitioner be further ordered to file a motion to lift the stay of this case within 30 days from the date of any decision by the California Supreme Court on state habeas review. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). DATED: October 6, 2025 .
UNITED STATES MAGISTRATE JUDGE 1] 13