FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM HENRY MCCORMICK, No. 09-15546
Petitioner-Appellant, D.C. No.
v. 2:05-cv-00735-
DARRELL G. ADAMS, Warden, JAM-GGH
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted
January 12, 2010—San Francisco, California
Filed September 3, 2010
Before: Alex Kozinski, Chief Judge, J. Clifford Wallace and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Wallace
13435
13438 MCCORMICK v. ADAMS
COUNSEL
Eric M. Weaver, Esq., Albany, California, for petitioner-
appellant William Henry McCormick.
Mark A. Johnson, Esq., Deputy Attorney General, Sacra-
mento, California, for respondent-appellee Darrell Adams.
OPINION
WALLACE, Senior Circuit Judge:
McCormick is a prisoner in the custody of the California
Department of Corrections. He waived his right to counsel
and represented himself at trial. McCormick now contends,
however, that his waiver of counsel was not knowing and vol-
MCCORMICK v. ADAMS 13439
untary. The California Court of Appeal, the last state court to
render a reasoned decision regarding McCormick’s right-to-
counsel claim, held that there was no constitutional violation.
After exhausting his state court remedies, McCormick filed
the present petition for a writ of habeas corpus in the United
States District Court for the Eastern District of California. The
district court had jurisdiction over McCormick’s habeas peti-
tion pursuant to 28 U.S.C. § 2254 and denied relief. We have
jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and
we affirm.
I.
On December 14, 2001, McCormick was charged in a fel-
ony complaint with several counts of child molestation. On
the same day that his criminal complaint was filed, McCor-
mick submitted a written waiver of the right to counsel and
signed a written advisement of his rights under Faretta v. Cal-
ifornia, 422 U.S. 806 (1975). The written Faretta waiver form
contained warnings about the dangers of self-representation
including, among other things, “[i]t is almost always unwise
to represent yourself”; “[i]f you change your mind during the
trial, you may not be permitted to postpone the case while you
obtain an attorney”; and “[y]our right to represent yourself
may be ended, an attorney appointed for you, and you may be
excluded from the courtroom if you misbehave during this
case or seriously disrupt the trial.” On this written form,
McCormick indicated that he understood the possible
defenses to the charges against him and what would have to
be proven before he could be found guilty. He also indicated
that he had never been treated for any emotional or mental ill-
ness. McCormick explained that he wished to represent him-
self because, in his own written words, “I do not trust
attorney’s [sic].”
The state trial court conducted a colloquy regarding
McCormick’s request to represent himself. The court advised
13440 MCCORMICK v. ADAMS
McCormick that he was entitled to court-appointed counsel.
The court inquired regarding McCormick’s competency to
represent himself. McCormick stated that he had prior experi-
ence as a paralegal and that he had represented himself in a
previous criminal trial, with some success. The court also
asked McCormick if he understood the total exposure he
faced if convicted of all charges. McCormick responded that
he understood the exposure he faced: the rest of his life in
prison. The court granted McCormick’s request to represent
himself. The court stated: “I’m going to go ahead and we’ll
see how you do. So you can represent yourself. You under-
stand that at any time you feel the water [i]s over your head,
you can ask for an attorney?” McCormick responded in
acknowledgment, “[y]es thank you.”
On January 10, 2002, McCormick was arraigned, during
which the court inquired whether McCormick wished to con-
tinue representing himself. He responded that he did. The
court replied: “Okay. You understand at any time if you
change your mind you let me know.” McCormick acknowl-
edged that he understood the court.
During subsequent pretrial hearings, McCormick affirmed
his desire to represent himself. At a pretrial motions hearing,
McCormick stated to the trial court: “I’m having a little [bit
of a] hard time following you, your Honor. I hope you under-
stand that.” The court asked McCormick: “Do you under-
stand, Mr. McCormick, [that] I cannot treat you any
differently than I would treat any attorney? I can’t help you
out.” McCormick replied that he understood that he was not
entitled to special treatment. The court further remarked to
McCormick that, “[w]e’re running into real problems because
you don’t know what you are doing.” McCormick acknowl-
edged, “[e]vidently, I don’t, huh?” After this exchange, and
on the prosecutor’s suggestion, the court asked McCormick if
he wanted to continue representing himself. McCormick
affirmed that he did, stating: “Absolutely. I’m looking for-
ward to this trial.”
MCCORMICK v. ADAMS 13441
Despite encountering difficulties in preparing his defense,
McCormick remained committed to self-representation as the
trial date drew near. At another pretrial hearing, the prosecu-
tion requested a one- to two-week continuance of the trial
date. McCormick strongly opposed any continuance, stating,
“I’m ready to go forward. . . . I’m ready to go.”
Prior to the commencement of trial, McCormick never
sought to revoke his Faretta waiver and never requested the
appointment of counsel. After the prosecution had rested its
case-in-chief at trial, however, McCormick asked for a recess.
Outside the presence of the jury, he told the trial court, “I’m
having a real bad problem with my, you know, since my sur-
gery I have problems with a memory. I can’t remember the
questions . . . .” He continued:
Your Honor, I — at this time I’m way over my head
in this thing. I’m having a real bad problem. Is there
any chance that — I know Officer Mayberry’s going
to be gone next week, but can we put this off and
maybe I can see if I can find counsel that might help
me?
In response to McCormick’s statement, the court first
inquired about the timing of his surgery, asking: “you had
your surgery a few years ago, correct?” McCormick agreed,
confirming that his surgery was “[a]bout four years ago.” The
court pressed further: “[s]o anyone in your position represent-
ing himself or herself against these charges would ordinarily
be way over their head.” McCormick again agreed. The court
denied McCormick’s request for a continuance, informing
him that he was “pretty much stuck with [the] decision” to
represent himself.
The trial continued with McCormick representing himself.
The jury convicted McCormick of all counts charged. McCor-
mick appealed from his conviction. He is currently serving a
13442 MCCORMICK v. ADAMS
sentence of ten years and eight months, consecutive to a term
of 45 years to life in prison.
In his state appeal, McCormick argued (among other
things) that his right to counsel had been violated. He said that
the trial court did not conduct an adequate inquiry as to
whether he understood the consequences of representing him-
self. He also argued that his waiver of the right to counsel was
not voluntary because he had relied on the court’s representa-
tions, recited above, that he could revisit the decision to repre-
sent himself “at any time.” Finally, he argued that the trial
court wrongly refused his mid-trial request for the appoint-
ment of counsel, breaching its promise to permit McCormick
to revisit his Faretta waiver “at any time.”
The court of appeal rejected McCormick’s claims. It deter-
mined that McCormick voluntarily and knowingly waived his
right to counsel and that the trial court had conducted a “more
than adequate” colloquy regarding his Faretta waiver request.
The court concluded McCormick did not waive his right to
counsel in reliance on the trial court’s promise that he could
withdraw the waiver “at any time.” Instead, the court con-
cluded, McCormick appeared determined to represent himself
in light of his mistrust of attorneys and his representation of
himself at a prior trial.
The court also held that McCormick’s waiver was not
invalidated by any subsequent event. The court observed that
McCormick “complains that the trial court reneged on a
promise it made twice when it advised him that, if he felt he
was ‘in over [his] head,’ he could request counsel at any
time.” The court found that McCormick did not rely on these
promises. He was set on self-representation; he had “know-
ingly and enthusiastically exercised his constitutional preroga-
tive to act as his own attorney.” The court of appeal rejected
the notion that the “promises” at issue could have been rea-
sonably construed as a guarantee that McCormick could sum-
marily withdraw his Faretta waiver at any stage of the
MCCORMICK v. ADAMS 13443
proceedings. This was especially true in light of the written
admonition, which McCormick signed, advising: “If you
change your mind during the trial, you may not be permitted
to postpone the case while you obtain an attorney.”
The court of appeal also rejected McCormick’s claim that
his supposed mid-trial request for the appointment of counsel
was improperly denied, setting forth two independent reasons.
First, the request at issue was a request for a continuance and
did not actually constitute a request for the appointment of
counsel. Insofar as the request for a continuance related to
counsel, McCormick’s request appeared to be for a continu-
ance so that he could obtain standby counsel. Second, even
assuming that McCormick had made a mid-trial request for
the appointment of counsel, the request was properly denied,
given the trial court’s “legitimate skepticism” of his claim of
memory problems, his vigorous representation of himself up
until that point, the lateness of the request, and the fact that
the trial would likely be delayed for some time in order for
new counsel to prepare.
After the California Supreme Court denied further review,
McCormick petitioned in federal court for a writ of habeas
corpus. His habeas petition asserted, among other claims, that
his waiver of the right counsel was not knowing and volun-
tary. The district court denied McCormick’s habeas petition.
The district court determined that McCormick’s Faretta
waiver was voluntary, reasoning that there was “no significant
evidence that petitioner relied on the judge’s comments in
making his decision to represent himself” or that he “was
induced to request self-representation by the judge’s assur-
ances that he could change his mind.” Instead, the record
reflected “that petitioner was determined to represent himself
before the proceedings even began,” such that “[t]he mere fact
that the judge told petitioner he could change his mind about
self-representation . . . does not mean that petitioner relied on
[that advisement] in making his decision.” The district court
also concluded that, even assuming that McCormick had
13444 MCCORMICK v. ADAMS
clearly requested the appointment of counsel during trial, that
request was properly denied, given the delay that would have
resulted at that late stage of the trial.
II.
We review the district court’s denial of McCormick’s
habeas petition de novo. See Leavitt v. Arave, 383 F.3d 809,
815 (9th Cir. 2004). We may affirm on any ground supported
by the record, “even if it differs from the rationale of the dis-
trict court.” See Ramirez v. Castro, 365 F.3d 755, 762 (9th
Cir. 2004) (internal quotation marks omitted), citing Alcala v.
Woodford, 334 F.3d 862, 868 (9th Cir. 2003). We review any
findings of fact by the district court for clear error. Riley v.
Payne, 352 F.3d 1313, 1317 (9th Cir. 2003).
Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), a federal court may not grant a section 2254
habeas petition “with respect to any claim that was adjudi-
cated on the merits in State court proceedings” unless the
state’s adjudication of that claim either:
(1) resulted in a decision that 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) resulted in a decision that 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). Thus, a federal court may issue the writ
pursuant to the “contrary to” clause “if the state court arrives
at a conclusion opposite to that reached by this Court on a
question of law or if the state court decides a case differently
than this Court has on a set of materially indistinguishable
facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000). A
federal court may issue the writ pursuant to the “unreasonable
MCCORMICK v. ADAMS 13445
application” clause “if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the prison-
er’s case.” Id. at 413.
AEDPA establishes a “highly deferential standard for eval-
uating state-court rulings,” Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997), and “demands that state-court decisions be
given the benefit of the doubt,” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam). “[S]tate court findings of fact
are presumed correct unless rebutted by clear and convincing
evidence or unless based on an unreasonable evidentiary
foundation.” Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.
2003), citing 28 U.S.C. §§ 2254(d)(2) & 2254(e)(1); see also
Miller-El v. Cockrell, 537 U.S. 322, 340 (2003) (stating that
such factual determination should be overturned only if “ob-
jectively unreasonable”).
In applying these standards of review, we “look to the last
reasoned state-court decision.” Van Lynn v. Farmon, 347 F.3d
735, 738 (9th Cir. 2003). Here, we review the decision by the
court of appeal as the last reasoned decision of the state
courts. Collins v. Runnels, 603 F.3d 1127, 1130 (9th Cir.
2010).
III.
[1] In Faretta, the Supreme Court held that an accused has
a Sixth Amendment right to conduct his own defense. 422
U.S. at 819. In order to invoke the right of self-representation
successfully, a defendant’s waiver of counsel must be “timely,
not for the purposes of delay, unequivocal, and knowing and
intelligent.” United States v. Erskine, 355 F.3d 1161, 1167
(9th Cir. 2004); see also Adams v. Carroll, 875 F.2d 1441,
1444 (9th Cir. 1989) (waiver must be unequivocal); United
States v. Rylander, 714 F.2d 996, 1005 (9th Cir. 1983)
(waiver must be knowing and intelligent), cert. denied, 467
U.S. 1209 (1984). Before allowing a defendant to represent
13446 MCCORMICK v. ADAMS
himself, the “trial court must satisfy itself that the waiver of
his constitutional rights is knowing and voluntary.” Godinez
v. Moran, 509 U.S. 389, 400 (1993).
In this case, McCormick asserts that he did not knowingly
and voluntarily waive his right to counsel for two primary rea-
sons. First, McCormick asserts that the trial court led him to
believe he could revoke his Faretta waiver at any time, and
that he relied on this promise in waiving his right to counsel.
Second, McCormick contends that he made a mid-trial
request for counsel that was wrongly denied by the trial court.
A.
We begin with McCormick’s claim that his waiver of the
right to counsel was not knowing and voluntary. See, e.g.,
Cordova v. Baca, 346 F.3d 924, 926 (9th Cir. 2003) (observ-
ing that “a defective waiver waives nothing and thus is of no
consequence”). In assessing this claim, we must first address
the contention that the district court and the court of appeal
approached this issue incorrectly. McCormick complains that
these courts erroneously “[broke] the voluntariness of appel-
lant’s Faretta waiver into two phases,” focusing on his state
of mind when first entering his Faretta waiver and ignoring
the effect of the trial court’s promises.
[2] The validity of a Faretta waiver is typically assessed at
the time it is entered. Erskine, 355 F.3d at 1169 (the question
is “what the defendant understood at the particular stage of
the proceedings at which he purportedly waived his right to
counsel“); see also United States v. Dujanovic, 486 F.2d 182,
186 (9th Cir. 1973) (the “keystone determination . . . is
whether the request to waive the assistance of competent
counsel is competently and intelligently made because with
that determination the die is cast”). When determining
whether a waiver of the right to counsel was knowing and
intelligent, “we must focus on what the defendant understood,
rather than on what the court said or understood.” United
MCCORMICK v. ADAMS 13447
States v. Balough, 820 F.2d 1485, 1487-88 (9th Cir. 1987). In
this case, McCormick’s Faretta waiver is accordingly the
starting point for our analysis.
B.
[3] We therefore now consider whether McCormick’s
Faretta waiver was knowing and voluntary at the time it was
entered in December 2001. In order for a waiver of the right
to counsel to be knowing and intelligent, the trial court should
apprise a defendant of the “dangers and disadvantages of self-
representation, so that the record will establish that ‘he knows
what he is doing and his choice is made with eyes open.’ ”
United States v. Bird, 621 F.2d 989, 991 (9th Cir. 1980), quot-
ing Faretta, 422 U.S. at 835. Accordingly, we have held that
“[a] waiver of counsel cannot be knowing and intelligent
unless the accused appreciates the possible consequences of
mishandling these core functions and the lawyer’s superior
ability to perform them.” United States v. Kimmel, 672 F.2d
720, 721 (9th Cir. 1982). This is best accomplished by the
trial court conducting a discussion with the defendant, in open
court and on the record, of the critical elements and risks of
self-representation. Rylander, 714 F.2d at 1005. However, we
have not “prescribed a meticulous litany to be employed” by
a trial court in a colloquy regarding a defendant’s request for
a Faretta waiver. United States v. Keen, 104 F.3d 1111, 1114
(9th Cir. 1996). Instead, we require only that a defendant be
made aware of three “critical elements” of self-representation:
(1) “the nature of the charges against him”; (2) “the possible
penalties”; and (3) “the dangers and disadvantages of self-
representation.” Id.; see also United States v. Farhad, 190
F.3d 1097, 1099 (9th Cir. 1999).
The court of appeal concluded that McCormick knowingly
and voluntarily waived his right to counsel. We review this
decision deferentially, Woodford, 537 U.S. at 24, presuming
that the state court’s findings of fact are correct “unless rebut-
ted by clear and convincing evidence or unless based on an
13448 MCCORMICK v. ADAMS
unreasonable evidentiary foundation.” Gonzalez, 341 F.3d at
903. On habeas review under the AEDPA, we determine
whether the state court decision is “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.”
Williams, 529 U.S. at 412-13; see also Erskine, 355 F.3d at
1166 (ultimate validity of a Faretta waiver involves a mixed
question of law and fact).
[4] We conclude that there is no basis to disturb the state
court’s decision. McCormick completed a written Faretta
waiver request form on the same day that his criminal com-
plaint was filed. The trial court conducted a colloquy regard-
ing McCormick’s waiver request. The trial court’s colloquy
met the requirements of Faretta because, according to the
court of appeal, “defendant was literate, competent and under-
standing; nothing in the record suggests that he was mentally
retarded or emotionally disturbed.” This finding is not clearly
erroneous. The trial court questioned McCormick personally
and inquired regarding his competency. The trial court like-
wise inquired whether McCormick was aware of the charges
against him and the possible penalties, and McCormick indi-
cated that he was. He was also warned of the dangers and dis-
advantages of self-representation, in both the written Faretta
waiver form and at the subsequent colloquy regarding his
request. As the court of appeal pointed out, McCormick “re-
peatedly insisted that he wanted to represent himself despite
the advisement that he had the right to a public defender,” and
despite having been warned of the risks of self-representation.
McCormick’s request to represent himself was made intelli-
gently.
Nevertheless, McCormick now argues that his waiver was
induced by the trial court’s statement that he could revisit the
decision to represent himself “at any time.” The court of
appeal rejected this claim, stating: “the judge’s comments
about revisiting the issue of self-representation did not influ-
ence McCormick’s decision to waive his right to counsel.”
MCCORMICK v. ADAMS 13449
McCormick submitted a written request for Faretta waiver
prior to his first appearance before a judge; that decision
could not have been induced by the trial judge’s later state-
ment that he could revisit the issue “at any time.” McCor-
mick’s allegation was also inconsistent with his clear
determination to represent himself. The court of appeal found
that “defendant was intent on representing himself because, in
his words, ‘I do not trust attorneys,’ and because he had expe-
rienced some success in representing himself in a prior trial.”
The court of appeal’s findings that McCormick knowingly
and voluntarily waived his right to counsel, and that this
waiver was not induced by the trial court’s statements, are not
clearly erroneous. The court of appeal’s decision is not con-
trary to, or an unreasonable application of, clearly established
federal law, and was not based on an unreasonable determina-
tion of the facts. 28 U.S.C. § 2254(d).
C.
Having concluded that McCormick’s initial Faretta waiver
was knowing and voluntary, we consider whether that waiver
was nullified by subsequent events. The court of appeal deter-
mined that McCormick’s Faretta waiver remained valid
throughout the course of pretrial proceedings. This conclusion
was not based on an unreasonable determination of the facts,
and it was not contrary to or an unreasonable application of
clearly established federal law.
Subsequent to acceptance of McCormick’s Faretta waiver,
the trial court inquired, at certain pretrial hearings, whether he
wished to withdraw that waiver. McCormick asserts that his
Faretta waiver was “subject to an ongoing dialogue” with the
court, and that he reentered or renewed his Faretta waiver
several times during the progress of pretrial proceedings in
the underlying criminal case.
[5] However, the trial court’s inquiries about whether
McCormick wished to withdraw his Faretta waiver did not
13450 MCCORMICK v. ADAMS
prompt a renewal or reentry of the waiver. Indeed, it is the
duty of trial courts to protect an accused’s right to counsel,
indulging all reasonable inferences against the waiver of
counsel. See Sandoval v. Calderon, 241 F.3d 765, 774 (9th
Cir. 2000); Brewer v. Williams, 430 U.S. 387, 404 (1977). In
Farhad, the district court, like the state trial court here, had
inquired whether the defendant wished to continue represent-
ing himself. 190 F.3d at 1099. Farhad’s repeated insistence of
self-representation confirmed the validity of his waiver:
the district judge revisited the issue on several occa-
sions prior to trial, urging Farhad to change his
mind. In each instance, Farhad insisted that he would
represent himself. Thus, the record in this case con-
clusively demonstrates that Farhad sufficiently
understood his right to counsel and waived that right
knowingly, intelligently, and voluntarily.
Id. at 1100 (internal quotation marks and alterations omitted).
Other cases have similarly recognized that such colloquies
confirm the defendant’s intent to represent himself. See, e.g.,
United States v. Van Krieken, 39 F.3d 227, 229-30 (9th Cir.
1994).
McCormick’s renewal and reentry contention is also unten-
able as a logical matter. If McCormick’s waiver was subject
to renewal at multiple pretrial hearings, the trial court would
be required to determine that his waiver was knowing and
voluntary at each relevant appearance. See Godinez, 509 U.S.
at 400 (trial courts must be satisfied that waiver is knowing
and voluntary). But this is not the law: the validity of a waiver
is typically assessed at the time of entry. McCormick entered
a valid waiver of his right to counsel. The right to counsel,
once validly waived, was “no longer absolute.” Menefield v.
Borg, 881 F.2d 696, 700 (9th Cir. 1989). McCormick was not
returned to the position of a defendant entering an initial
Faretta waiver every time the trial court inquired if he would
like to withdraw it. Recognizing the trial court’s duty to pro-
MCCORMICK v. ADAMS 13451
tect defendants’ rights to counsel, we conclude that the trial
court did not go astray by inquiring whether McCormick
wished to withdraw his Faretta waiver.
This conclusion is not changed by the trial court’s pretrial
statements that McCormick could revisit his decision to repre-
sent himself at any time. McCormick has not shown that he
detrimentally relied on the trial court’s statement at his
arraignment or during any other statement. As we have
already described, McCormick was set on self-representation.
Indeed, subsequent to entering his Faretta waiver and subse-
quent to his arraignment, McCormick appeared at several pre-
trial hearings. McCormick did not explicitly revoke the
waiver at any time prior to trial. He never made any statement
that would call into question his desire to represent himself.
To the contrary, McCormick confirmed that he was commit-
ted to representing himself. McCormick does not point to any
evidence establishing that the trial court’s statements were
material to his waiver decision in any way.
[6] The court of appeal concluded that the validity of
McCormick’s waiver was not affected by the trial court’s
statements that he could ask to withdraw that waiver at any
time. Even assuming that those statements constituted some
form of error, we have stated that the effect of a defective
waiver colloquy presents a distinct issue from the effect of a
defective waiver itself; a defective waiver colloquy “will not
necessitate automatic reversal when the record as a whole
reveals a knowing and intelligent waiver.” Balough, 820 F.2d
at 1488; see also United States v. Harris, 683 F.2d 322, 324
(9th Cir. 1982); Kimmel, 672 F.2d at 722; United States v.
Aponte, 591 F.2d 1247, 1249-50 (9th Cir. 1978). We look to
“the particular facts and circumstances surrounding that case,
including the background, experience and conduct of the
accused” to determine whether the waiver was knowing and
intelligent despite the absence of a specific inquiry on the
record. Kimmel, 672 F.2d at 722, quoting Cooley v. United
States, 501 F.2d 1249, 1252 (9th Cir. 1974), cert. denied, 419
13452 MCCORMICK v. ADAMS
U.S. 1123 (1975). The Supreme Court “has not told us
whether a trial court’s failure to give proper [Faretta] warn-
ings automatically vitiates the waiver.” Cordova, 346 F.3d at
926. In light of this silence from the Court, we have held that
“a state court would be entitled to conclude that a defective
waiver colloquy does not automatically result in a defective
waiver — that a defendant’s waiver was nonetheless knowing
and voluntary.” Id.; see also Balough, 820 F.2d at 1488. The
court of appeal’s conclusion was therefore neither inconsis-
tent with, nor an unreasonable application of, federal law.
IV.
Satisfied that McCormick’s Faretta waiver was knowing
and voluntary and remained so until trial, we turn to the sec-
ond set of issues presented in this appeal: whether McCor-
mick invoked his right to counsel during trial and whether the
trial court erred in denying McCormick’s request. The court
of appeal made two determinations relevant to these issues.
First, it found that McCormick did not make a request for
counsel or ask to be relieved of his Faretta waiver during
trial. If McCormick “did not ask the court to appoint an attor-
ney to represent him,” the trial court could not have erred by
failing to do so. Second, the court of appeal concluded that,
even assuming McCormick made an unambiguous request for
the appointment of counsel, the request would have been
properly denied. For its part, the federal district court relied
on only the second portion of the court of appeal’s reasoning
in rejecting McCormick’s claim.
[7] The trial court denied McCormick’s request for a con-
tinuance because, among other things, it was made in the mid-
dle of trial and would cause delay. The court of appeal found
that “[a]ppointment of counsel at that late stage would almost
certainly have required a prolonged postponement of the trial,
severely disrupting the proceedings,” and determined that
McCormick’s request for a delay was suspect for several
additional reasons:
MCCORMICK v. ADAMS 13453
the trial court harbored legitimate skepticism about
defendant’s sudden claim of memory problems
because of surgery he underwent four years before.
Defendant had vigorously represented himself up
until then, which included several motions to dismiss
for violation of his speedy trial rights and motions to
suppress evidence. The request was untimely, com-
ing only after the prosecution had finished present-
ing its case and defendant was putting on his.
Taking all of the above into account, the court of appeal con-
cluded that the trial court did not abuse its discretion in deny-
ing McCormick’s request for a continuance and/or counsel,
reasoning that “[a] defendant who suddenly eschews self-
representation may find that he will not be relieved of his
original choice. A trial judge is not obligated to restore coun-
sel if a Faretta defendant changes his mind in midtrial and no
longer wants to represent himself,” quoting Brookner v. Supe-
rior Ct., 64 Cal. App. 4th 1390, 1394 (1998).
We hold that the court of appeal’s decision was not an
unreasonable determination of the facts presented to it, nor
was it contrary to, or an unreasonable application of, clearly-
established federal law. The Supreme Court has held that
“[t]he matter of continuance is traditionally within the discre-
tion of the trial judge, and it is not every denial of a request
for more time that violates due process even if the party fails
to offer evidence or is compelled to defend without counsel.”
Ungar v. Sarafite, 376 U.S. 575, 589 (1964), citing Avery v.
Alabama, 308 U.S. 444 (1940). The Court has cautioned that
“a myopic insistence upon expeditiousness in the face of a
justifiable request for delay can render the right to defend
with counsel an empty formality,” but that “[t]here are no
mechanical tests for deciding when a denial of a continuance
is so arbitrary as to violate due process. The answer must be
found in the circumstances present in every case, particularly
in the reasons presented to the trial judge at the time the
request is denied.” Id.; see also Morris v. Slappy, 461 U.S. 1,
13454 MCCORMICK v. ADAMS
11-12 (1983) (trial courts have broad discretion with regard to
continuances, and “only an unreasoning and arbitrary insis-
tence upon expeditiousness in the face of a justifiable request
for delay violates the right to the assistance of counsel”)
(internal quotation marks omitted).
[8] In line with that precedent, we have recognized that
“[t]here are times when the criminal justice system would be
poorly served by allowing the defendant to reverse his course
at the last minute and insist upon representation by counsel.”
Menefield, 881 F.2d at 700. A continuance may be denied
even where it results in the defendant being unrepresented at
trial. United States v. Thompson, 587 F.3d 1165, 1174 (9th
Cir. 2009) (listing factors to be balanced when a decision to
grant or deny a continuance implicates a defendant’s Sixth
Amendment right to counsel, including “whether the continu-
ance would inconvenience witnesses, the court, counsel, or
the parties; [ ] whether other continuances have been granted;
[ ] whether legitimate reasons exist for the delay; [ ] whether
the delay is the defendant’s fault; and [ ] whether a denial
would prejudice the defendant”), citing United States v. Stud-
ley, 783 F.2d 934, 938 (9th Cir. 1986) and United States v.
Leavitt, 608 F.2d 1290, 1293 (9th Cir. 1979); see also
Faretta, 422 U.S. at 852 (Blackmun, J., dissenting) (pointing
out the procedural dilemmas raised by the self-representation
rule).
[9] The court of appeal reasonably concluded, therefore,
that the trial court did not abuse its discretion in denying the
requested continuance. Cf. Marshall v. Taylor, 395 F.3d 1058,
1061-62 (9th Cir. 2005) (regarding timeliness element in
Faretta request).
AFFIRMED.