Killens v. Castro

62 F. App'x 155

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2003
• Docket: No. 02-16159; D.C. No. CV-00-00895-TEH
• Status: Published

Opinion

MEMORANDUM

**

California state prisoner Kenneth Debrea Killens appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition, which challenges his convictions and 28-year sentence for two robberies. We have jurisdiction pursuant to 28 U.S.C. § 2253(a). Reviewing de novo, Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001), we affirm.

Killens contends that there was insufficient evidence to support his convictions relating to the Morgan Hill robbery. This contention fails because the credibility of a witness is a matter for the jury to decide and because the evidence was sufficient to show that Killens was the perpetrator. See Schlup v. Delo, 513 U.S. 298, 330, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) (stating that the credibility of witnesses is generally beyond the scope of review for sufficiency of the evidence); Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 (1979) (stating that a conviction should be sustained if “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”).

Killens also contends that he was denied his Sixth Amendment right of self-representation. The California Court of Appeal concluded that Killens’s right to represent himself, as established in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), was not violated when the trial court in its discretion denied Killens’s request, which was first made after extensive pretrial and jury-selection proceedings. We cannot say that this conclusion is either contrary to or an unreasonable application of federal law as clearly established by the Supreme Court. See Lockyer v. Andrade, — U.S. -, 123 S.Ct. 1166, 1172-75, 155 L.Ed.2d 144 (2003); Moore v. Calderon, 108 F.3d 261, 265 (9th Cir.1997) (concluding that Faretta establishes a timeliness requirement and that a request made “weeks” before trial was timely).

Thus, the district court properly denied Killens’s petition. See 28 U.S.C. 2254(d).¹

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

1 . We do not consider the other issues raised by Killens because they are not included in the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1103 (9th Cir.1999) (per curiam).