Werber v. Sublett

72 F. App'x 694

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 18, 2003
• Docket: No. 02-16807; D.C. No. CV-00-00404-EHC
• Status: Published

Opinion

MEMORANDUM

***

Arizona state prisoner Gregory David Werber appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenges his conviction and 12.5-year sentence for one count of schemes and artifices to defraud. 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.

Werber contends that his Sixth Amendment right of self-representation was violated when counsel represented him at the sentencing hearing. Our review of the record, however, reveals that Werber never made an unequivocal request to proceed exclusively pro se.¹ Thus, the state court’s denial of this claim was not contrary to or an unreasonable application of federal law as clearly established by the Supreme Court. See 28 U.S.C. § 2254(d); Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); see also Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir.1989) (stating that a “request to proceed without counsel [must] be unequivocal” and “[i]f [the defendant] equivocates, he is presumed to have requested the assistance of counsel”). The district court therefore properly denied Werber’s petition.²

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 . Contrary to Werber’s assertion, the state court did not make a finding of fact that Werber made an unequivocal request to represent himself.

2 . The Clerk is ordered to file appellees’ excerpts of record, received by the Court on April 7, 2003. Werber’s December 13, 2002 motion to file a pro se supplemental brief is denied. In addition, Werber's motion to broaden the certificate of appealability is denied.