Saturday, May 26, 2012

Rodgers v. Marshall, 2012 WL 1739703 (C.A. 9)

Ignoring Supreme Court decisions requiring deference to state courts under AEDPA, the 9th Circuit   overrules another California Court of Appeals case.

After filing an appeal from his conviction and numerous petitions for habeas corpus in state court, all denied, defendant filed a petition for habeas corpus in federal court.   Denied. He appealed to the 9th Circuit.

The trial record establishes the defendant wavered back and forth in determining whether to represent himself. The trial court judge repeatedly warned him against self representation. Ultimately the defendant did represent himself, and the jury found him guilty.  Without asserting any grounds, the defendant asked the court to appoint counsel to file a motion for new trial.  The trial court denied his request. In a petition to the 9th Circuit, the defendant asked for reversal on grounds the trial court should have granted his motion.

The 9th Circuit panel, reversing all California Court of Appeals decisions, petitions for habeas corpus, and the decision of the district court, first concluded a motion for new trial is a "critical stage" in criminal proceedings and a defendant is entitled to counsel.  But the panel could find no Supreme Court case holding that a defendant who elects self representation, and represents himself at trial, is entitled to representation at a post trial motion.  California courts correctly held that once a defendant decides to representation himself, he waives his right to counsel and revocation of the waiver is not permitted. 

Not in the 9th Circuit. Citing no Supreme Court case to this effect, the panel turns to 9th Circuit precedent  to assist in determining whether a defendant can revoke his waiver of counsel.  Completely ignoring Carey v Musladin, 549 U.S. 70 (2006), a Supreme Court case holding the absence of Supreme Court precedent on an issue disallows invoking circuit court precedent under the standards of AEDPA. Carey, another 9th Circuit reversal, prevents  the circuit court from citing its own precedent for "guidance, " as the panel states.

Aside from a wrong decision on the legal issue, this is another case of a defendant "gaming the system," citing no ground for the court to appoint counsel after deciding to self represent. Incidentally the defendant represented himself at sentencing without asking for counsel.

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