Ramirez v. Lamarque

203 F. App'x 77

Opinions

MEMORANDUM

*

California state prisoner Alfonso Ramirez appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for grand theft and carjacking. We affirm.¹

I.

That there exists a timeliness element of a Faretta request for self-representation is clearly established federal law for purposes of habeas review. Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir.2005). Because the Supreme Court has not established exactly what makes a Faretta request timely, beyond the holding in Far-etta itself that “weeks before trial” is sufficient, other courts are free to determine standards of their own. See Faretta v. California, 422 U.S. 806, 835-36, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). We have previously upheld the California standard that a Faretta motion to represent oneself at trial, made the day of trial, is untimely. Id. at 1061-62.

Ramirez’s request for self-representation at his preliminary hearing was made on the same day as the preliminary hearing itself. The right to self-representation is certainly no more important at the preliminary hearing than at trial. See Powell v. Alabama, 287 U.S. 45, 57, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Coleman v. Alabama, 399 U.S. 1, 10-11, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970). Accordingly, because the lower court’s finding of untimeliness was based on the same California standard that we have upheld in the trial context, the California Supreme Court’s decision to affirm here was not contrary to clearly established federal law as determined by the Supreme Court, or based on an unreasonable determination of the facts. Marshall, 395 F.3d at 1061-62.

II.

Because it was not error for the California Supreme Court to affirm the denial of Ramirez’s Faretta motion as untimely, the question of whether harmless error applies to Faretta violations occurring at the pretrial stage is moot.

III.

Under Circuit Rule 22-l(e), we construe Ramirez’s briefing on the uncertified issue of ineffective assistance of appellate counsel as a motion to expand the certificate of appealability. We deny the motion. Ramirez cannot make a substantial showing of the denial of a constitutional right. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005) (quoting Nardi v. Stewart, 354 F.3d 1134, 1138 (9th Cir.2004)).

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 9th Cir. R. 36-3.

1 . While Ramirez’s opening brief could have been more precise, we believe he did adequately raise the certified issues there. He identified each of the certified issues as section headings and explicitly referenced precedents regarding the right to counsel at a preliminary hearing, as well as the district court’s ruling below noting that a denial of Faretta rights is subject to harmless error analysis. Appellant’s Opening Brief at 37-38. Therefore, it is appropriate to reach the merits of the certified issues.