Tan Vo v. Jeri Boe

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2020
• Docket: 20-35190
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

TAN VAN VO, No. 20-35190

Petitioner-Appellant, D.C. No. 2:19-cv-00151-RAJ

v. MEMORANDUM* JERI BOE, Clallam Bay Superintendent; RON HAYNES,

Respondents-Appellees.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted December 8, 2020** Seattle, Washington

Before: BERZON, MILLER, and BRESS, Circuit Judges.

Tan Van Vo appeals the district court’s denial of his habeas petition under 28

U.S.C. § 2254. We review the denial of § 2254 relief de novo. Deck v. Jenkins, 814

F.3d 954, 977 (9th Cir. 2016). We have jurisdiction under 28 U.S.C. § 2253 and

* 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). affirm.

Vo contends he was denied his Sixth Amendment right to represent himself

in his criminal trial in Washington state court. See Faretta v. California, 422 U.S.

806, 836 (1975). We may only grant habeas relief if the state court’s decision (1)

“was contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or (2) “was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

The Washington Court of Appeals on direct appeal held that the trial court did

not violate Vo’s right to represent himself because Vo did not assert that right

unequivocally. See State v. Vo, No. 76407–1–I, 2018 WL 2671666, at *4 (Wash.

Ct. App. June 4, 2018). The Washington Supreme Court denied review, and the

Washington Court of Appeals denied Vo’s state habeas petition for raising issues

identical to those raised on direct appeal. We therefore review the Washington Court

of Appeals decision on direct appeal, the last reasoned decision by Washington’s

courts. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).

To invoke the right to self-representation, “Faretta requires a defendant’s

request for self-representation be unequivocal.” Stenson v. Lambert, 504 F.3d 873,

882 (9th Cir. 2007). In this case, the Washington Court of Appeals reasonably

concluded that Vo’s request to represent himself was not unequivocal. Shortly

2 before his felony trial was set to begin, Vo stated that he wished to represent himself.

But Vo vacillated between wanting to represent himself and wanting new counsel,

even after the trial court had denied Vo’s request to discharge his counsel. “A

request to represent oneself made while at the same time stating a preference for

representation by a different lawyer and rearguing [a] change of counsel motion is

insufficient to invoke Faretta.” United States v. Mendez-Sanchez, 563 F.3d 935,

939 (9th Cir. 2009). In this case, moreover, Vo made other statements expressing

uncertainty (“I don’t know anything,” “I do not know”), that likewise could be

regarded as equivocation.

Because Vo did not unequivocally assert his right to represent himself, the

trial court likewise did not act contrary to clearly established law in not conducting

a colloquy to determine whether Vo’s Faretta waiver was knowing and intelligent.

See Sandoval v. Calderon, 241 F.3d 765, 775 (9th Cir. 2001).

AFFIRMED.