FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICOLE BRADLEY, No. 04-15919
Petitioner-Appellant,
v. D.C. No.
CV-03-03034-PJH
GLORIA HENRY, Warden,
OPINION
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted June 19, 2007*
San Francisco, California
Filed December 19, 2007
Before: Mary M. Schroeder, Harry Pregerson,
Warren J. Ferguson, John T. Noonan, Sidney R. Thomas,
Barry G. Silverman, William A. Fletcher, Marsha S. Berzon,
Richard C. Tallman, Johnnie B. Rawlinson, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge Clifton;
Dissent by Judge Silverman
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
16503
16506 BRADLEY v. HENRY
COUNSEL
Dennis P. Riordan, San Francisco, California, for the
petitioner-appellant.
Gregory A. Ott, Deputy Attorney General, San Francisco,
California, for the respondent-appellee.
OPINION
NOONAN, Circuit Judge:
The appeal in this habeas corpus case is not directed to the
guilt or innocence of the petitioner. The question we must
address is whether a decision of a California Court of Appeal
BRADLEY v. HENRY 16507
was not merely erroneous but objectively unreasonable in its
application of the Constitution of the United States as the
meaning of the Constitution was determined, at the time of
the decision of the California court, by the Supreme Court of
the United States. We summarize the underlying criminal case
and proceed to consideration of three instances in which the
petitioner claims that such unreasonable applications of the
Sixth Amendment took place.
The underlying case. On January 17, 1996, Bradley, 18
years-old at the time, was involved in an apparent carjacking
in the course of which the driver of the car was killed. On Jan-
uary 22, 1996, she was taken into custody.
The case went to trial before a jury in March 1999. The
prosecution’s case was that Bradley had killed in the course
of a felony. Her two juvenile accomplices testified against
her, as did a police officer, to whom petitioner had made
admissions. No one testified that she had deliberately shot the
driver. The shooting appeared to be unintentional. But it was
the cause of death during the commission of the carjacking,
a felony the witnesses blamed on Bradley. She did not testify
in her own defense. She was found guilty of murder in the
first degree (Cal. Pen. Code § 187(a)), attempted carjacking
(Cal. Pen. Code §§ 664, 215(a)), and possession of a short-
barreled shotgun (Cal. Pen. Code § 12020(a)(1)). She
received a sentence of thirty-five years to life in prison.
On April 20, 2002, petitioner’s conviction was affirmed by
a court of appeal. On July 10, 2002, the Supreme Court of
California summarily denied review. On June 30, 2003, peti-
tioner filed the present petition for habeas corpus. The petition
was denied by the district court, leading to the present appeal.
The withdrawal of petitioner’s counsel and replacement by
appointed counsel. On March 4, 1998, the judge then in
charge of the case had a conference in his chambers. Present
were the district attorney of Sonoma County, the deputy dis-
16508 BRADLEY v. HENRY
trict attorney who was prosecuting the case, and an investiga-
tor from the district attorney’s office. Also present was
Cynthia M. Dunlevy, retained for the defense, and two law-
yers who had no apparent connection with the case. By order
of the judge, the record of what happened was sealed until the
conclusion of the trial. The petitioner was not present.
This conference was about two concerns: Dunlevy’s desire
to withdraw as counsel because of serious conflicts with her
client, including inadequate payment for defense services; and
the prosecutor’s fear of foul play on the part of the defen-
dant’s father. The presence of the two lawyers new to the
case, Andrian and his partner, Gallenson, was explained by
the fact that the judge, apparently already alerted to Dunlevy’s
desire to withdraw, had approached them about being
appointed to represent the petitioner. The reason for combin-
ing the substitution of counsel with airing of the danger felt
by the prosecutor was not explained except by the prosecu-
tor’s sense that the petitioner’s father, who was paying for the
defense, would go to lengths to delay trial. The conference
concluded with the judge agreeing to let Dunlevy and her
partner withdraw and to put Andrian in their place, not as
retained counsel but as appointed counsel to be compensated
by the county.
The conferees moved from the judge’s chambers to court.
Present, in addition to the judge, were Dunlevy, Andrian, the
prosecutor, the petitioner, and a lawyer she had chosen to rep-
resent her. The judge accepted Dunlevy’s motion to withdraw.
The judge appointed Andrian in her stead. Dunlevy told the
court that the petitioner would like Patrick Hutchinson, the
lawyer that she had brought with her to court, to speak on her
behalf. The prosecutor objected. The court upheld the objec-
tion.
The sequel. On October 19, 1998, the petitioner moved to
replace Andrian. He stated that there was a conflict between
him and his client; that she had filed a complaint against him
BRADLEY v. HENRY 16509
with the State Bar; that she had threatened to sue him person-
ally; and that his insurance carrier required him to stop com-
municating with her. A judge, new to the case, suggested that
the insurance problem could be resolved. He ruled that
Andrian was not rendering inadequate or ineffective assis-
tance. He continued the case, and six weeks later Andrian’s
need for insurance was resolved by the county agreeing to
indemnify him.
The petitioner’s proposal of new retained counsel. On Jan-
uary 7, 1999, the petitioner moved to substitute retained coun-
sel, Jonathan Jordan, for appointed counsel Andrian. On
January 19, 1999, the trial judge held a hearing on this
motion. The judge expressed concern about delays by what he
said almost amounted to “lawyer-churning.” He also
expressed concern about the payment of Jordan. Jordan
assured him that he would be ready by the date appointed for
trial and was satisfied as to the arrangements for his compen-
sation. The judge denied the petitioner’s motion to substitute
Jordan for Andrian. The judge also rejected Jordan’s sugges-
tion that he become associate counsel with Andrian.
ANALYSIS
[1] The Sixth Amendment to the Constitution of the United
States provides that “In all criminal prosecutions, the accused
shall enjoy the right . . . to have the Assistance of Counsel for
his defense.” U.S. Const. amend. VI. This bedrock principle
of constitutional law has recently been restated by the United
States Supreme Court in these words:
We have previously held that an element of this right
is the right of a defendant who does not require
appointed counsel to choose who will represent him.
See Wheat v. United States, 486 U.S. 153, 159
(1988). Cf. Powell v. Alabama, 287 U.S. 45, 53
(1932) (“It is hardly necessary to say that, the right
to counsel being conceded, a defendant should be
16510 BRADLEY v. HENRY
afforded a fair opportunity to secure counsel of his
own choice”).
United States v. Gonzalez-Lopez, 126 S. Ct. 2557, 2561
(2006).
It is conceded by petitioner that the right is not absolute.
What is disputed is whether the California Court of Appeal’s
application of the governing principle is objectively unreason-
able. As the principle is of general application, it is “a rule
designed for the specific purpose of evaluating a myriad of
factual contexts.” Wright v. West, 505 U.S. 277, 309 (1992)
(Kennedy, J., concurring). “[S]o of course there will be varia-
tions from case to case.” Id. The new application is not “a
new rule, one not dictated by precedent.” Id.
Three arguments are advanced why the application of prin-
ciple here was not objectively unreasonable: (1) that the trial
had been inordinately delayed by petitioner’s changes of
counsel; (2) that petitioner was not in a position to afford
retained counsel; and (3) that any error in denying her counsel
of her choice was harmless. We consider these contentions in
turn.
1. Inordinate delay. Inspection of the docket shows that the
following judges of the Superior Court held hearings or made
rulings in the case:
January 22 - July 18, 1996 The Honorable F. Passalacqua
August 15, 1996 The Honorable R. Jamar
August 30 - October 18, 1996 The Honorable R. Giordano
November 1, 1996 The Honorable L. Antolini
December 13, 1996 The Honorable E. Watters
January 17, 1997 The Honorable R. Giordano
February 28, 1997 - April 13, 1998 The Honorable M. Tansil
July 10, 1998 - March 4, 1999 The Honorable K. Owen
As far as the record before us shows, these were the princi-
pal delays and their causes:
BRADLEY v. HENRY 16511
On March 15, 1996, within two months of petitioner’s
arrest and before any indictment, the prosecutor pointed to a
conflict of interest on the part of petitioner’s counsel. Judge
Passalacqua ordered his disqualification. No apparent delay
resulted.
On October 18, 1996, two months after Bradley’s indict-
ment on multiple charges including murder in the first degree
with special circumstances, she moved to substitute counsel.
Judge Passalacqua granted her motion. At the time no trial
date appears to have been set. On December 13, 1996, the
date was set for April 14, 1997.
On February 28, 1997, Judge Tansil took over the case and
changed the trial date to July 18, 1997 “for calendar control.”
On July 3, 1997, for no reason apparent to us, Judge Tansil
put off the trial date seven months to March 2, 1998.
On November 21, 1997, Judge Tansil granted Bradley’s
motion to replace her counsel; announced “this will be the last
change in counsel;” and postponed the trial date one month to
March 30, 1998.
On March 4, 1998, Judge Tansil permitted Bradley’s coun-
sel to withdraw and appointed Andrian. On April 13, 1998,
Judge Tansil moved the trial date to October 26, 1998.
On October 19, 1998, Bradley moved to disqualify
Andrian. She also indicated her intention to sue him. Andrian
explained that his malpractice insurance carrier required him
to stop communicating with Bradley upon receiving notice of
her intent to sue. Judge Owen postponed the trial date so that
Andrian could work out his problem, resolved only by his
agreement with the county to indemnify him on December 16,
1998. The trial was eventually reset for February 22, 1999.
For reasons not apparent in the record before us, the trial
did not take place until March 1999.
16512 BRADLEY v. HENRY
SUMMARY
Date Cause of Delay Time Lost
3/15/96 Disqualification by the court of None apparent
counsel for conflict of interest
10/18/96 Change of counsel on Bradley’s None apparent
motion
2/28/97 Calendar control by the court 3 months
7/3/97 Trial date reset by court 7 months
11/12/97 Court grants Bradley’s motion to 1 month
substitute counsel
3/4/98 Court permits Bradley’s counsel to 7 months
withdraw and appoints counsel
10/14/98 Court gives Andrian time to get 4 months
malpractice coverage from the
county
[2] In summary, 21 months of delay resulted from actions
of the court, one month from Bradley’s request to change
counsel. To excuse the denial of counsel of choice because of
delays largely produced by the court itself is objectively
unreasonable.
[3] 2. Inability to afford counsel. In the initial substitution
of appointed counsel for retained counsel, petitioner was
given no chance to contest the conclusion, apparently reached
by the judge even prior to the in-camera proceeding, that she
could not pay. Due process does not permit a judge to decide
such a question without hearing the affected party. Audi
alteram partem — hear the other side — is what makes the
legal process work in an adversary system.
[4] “[T]he right to counsel of choice does not extend to
defendants who require counsel to be appointed for them.”
BRADLEY v. HENRY 16513
Gonzalez-Lopez, 126 S. Ct. at 2565. But a court could not
assume that because petitioner was under twenty-one and her
father had been difficult that she had no way of paying for
counsel. Decide first, defend later is not an axiom of constitu-
tional law. To deny assistance of counsel on account of the
impecuniousness of the defendant required a hearing to
explore the case.
[5] The disregard of petitioner’s right was the more egre-
gious in that Dunlevy informed the judge that Bradley “would
be objecting to my being relieved” and that Bradley had
retained Hutchinson to represent her on that issue. The judge
did not hear Bradley or her representative. The judge capped
his conduct by concealing from her the record of the closed
in-camera proceeding from which she had been excluded. To
assert, as the California Court of Appeal asserted, that peti-
tioner did not lack counsel because Dunlevy, the lawyer seek-
ing to get out, and Andrian, the lawyer seeking to get in, were
looking out for her interests, is objectively unreasonable. Nei-
ther was in a position to represent her. A lawyer is not some-
one “concerned” with the interest of a defendant. A lawyer is
the person speaking for and in the name of the client.
[6] Andrian was appointed and continued in the case as the
direct consequence of this unconstitutional proceeding.
[7] Harmful error. We look at the Court of Appeal’s appli-
cation of the test of harmless error to what that court properly
conceded might be constitutional error. Applying Brecht v.
Abrahamson, 507 U.S. 619 (1993), we consider whether the
deprivation of the assistance of counsel was harmful to peti-
tioner. The state relies on Morris v. Slappy, 461 U.S. 1, 13
(1989) (the right to a “meaningful attorney-client relation-
ship” is “without basis in the law”). No doubt it is difficult to
determine when such a relationship exists, so it is hard to use
as a standard for measuring whether the right to assistance of
counsel has been denied. It can be determined, however, that
a relationship in which client sues lawyer and lawyer does not
16514 BRADLEY v. HENRY
speak to client has broken down. Such was the situation here
in December 1998, a month before trial was scheduled. The
lawyer spoke to his client when the county insured him
against liability, creating a singular dependance of defense
counsel on an agency associated with the prosecution. This
restored communication led to Andrian’s proposal of an
insanity defense unacceptable to his client. On such key ques-
tions as to whether he should pursue a plea bargain or whether
she should take the stand at trial, she had a lawyer that she
was still rejecting in January 1999 and seeking to replace with
retained counsel. By any measure, an adversary relationship
had replaced a lawyer-client relationship. It was objectively
unreasonable to find no harm in Andrian’s continuation and
in the denial of Jordan’s offered assistance.
Summary. The in-camera hearing without petitioner present
denied her right to the assistance of counsel, an error con-
firmed and compounded by the court’s refusal to let petitioner
address the issue in open court. The harmful sequel to this
first error of constitutional magnitude was the court’s consti-
tutional error in refusing to replace Andrian when the
attorney-client relationship between him and petitioner had
broken down. This error led to the third denial of the right to
assistance of counsel: the court’s refusal to have Andrian be
replaced or assisted by Jordan, with the resultant injury to the
petitioner’s defense at trial.
For the reasons stated, the judgment of the district court is
REVERSED and the case is REMANDED for proceedings in
accordance with this opinion.
CLIFTON, Circuit Judge, with whom Circuit Judges
SCHROEDER, W. FLETCHER, and BERZON join, concur-
ring in the judgment:
I concur in the judgment reversing the denial of Petitioner
Nicole Bradley’s petition for habeas corpus under 28 U.S.C.
BRADLEY v. HENRY 16515
§ 2254. I write separately because my conclusion is based
specifically upon the denial by the trial court of Bradley’s
January 1999 motion, filed more than six weeks before the
then-scheduled trial date, to substitute retained counsel Jona-
than Jordan for the attorney previously appointed by the court
to represent her, Chris Andrian. I conclude that the subse-
quent decision by the California Court of Appeal to affirm
Bradley’s conviction despite that denial of her motion to sub-
stitute was an unreasonable application of established
Supreme Court precedent, even under the deferential standard
applicable to our review of a state court conviction. Judge
Noonan’s opinion also rests on two other decisions by the trial
court identified as unreasonable denials of the right to coun-
sel, specifically in March 1998 when prior retained counsel
withdrew and was replaced by appointed counsel Andrian,
and in October 1998 when the trial court denied Bradley’s
motion to replace Andrian. Although those events color the
circumstances faced in January 1999 when the motion to sub-
stitute Jordan for Andrian was denied, I do not find it neces-
sary to conclude that the earlier decisions by the trial court
were improper.
I
At the time Bradley filed her motion for substitution, the
Supreme Court had unambiguously established that the Sixth
Amendment right to counsel included the right to retain the
counsel of one’s choice. Caplin & Drysdale, Chatered v.
United States, 491 U.S. 617, 624 (1989) (noting that, although
an indigent defendant is not entitled to have the attorney of
his choice appointed, “the Sixth Amendment guarantees a
defendant the right to be represented by an otherwise quali-
fied attorney whom that defendant can afford to hire, or who
is willing to represent the defendant even though he is without
funds.”); see United States v. Gonzalez-Lopez, 126 S.Ct.
2557, 2561 (2006) (“We have previously held that an element
of this right is the right of a defendant who does not require
appointed counsel to choose who will represent him.”) (citing
16516 BRADLEY v. HENRY
Wheat v. United States, 486 U.S. 153, 159 (1988); cf. Powell
v. Alabama, 287 U.S. 45, 53 (1932) (“It is hardly necessary
to say that, the right to counsel being conceded, a defendant
should be afforded a fair opportunity to secure counsel of his
own choice.”)).
The right to select counsel is not unlimited, to be sure. The
Supreme Court has established certain limitations on “the
right to select and be represented by one’s preferred attorney.”
Wheat, 486 U.S. at 159. It held that a defendant could not
insist on representation from a particular attorney unless (1)
the defendant could afford the attorney’s fees or the attorney
agreed to represent the defendant without pay, (2) the attorney
was a member of the bar, (3) the attorney was willing to rep-
resent the defendant, and (4) the attorney did not have a rela-
tionship with an opposing party. Id. In addition, the Court
established that where the government makes “a showing of
a serious potential” for a conflict of interest, the trial court has
wide latitude in determining whether the defendant may
waive the conflict under the circumstances and facts of the
individual case. Id. at 162 164. Furthermore, though it was not
discussed by the Court in Wheat or in any other decision prior
to the events in this case, I agree that the trial court is entitled
to manage its docket and may deny a motion to substitute
retained counsel if there is a substantial risk that the substitu-
tion will result in an undue delay of the proceedings.
II
On January 7, 1999, forty-six days before her scheduled
trial date, Bradley moved to substitute a retained attorney,
Jordan, for the lawyer the court had previously appointed for
her, Andrian. Her motion included a declaration from Jordan,
her counsel of choice, in which he stated that Bradley’s fam-
ily had first contacted him regarding representing Bradley in
March 1998, ten months before, but that he had been unable
to take the case due to his other commitments at the time. He
declared that he had since discussed the case with an investi-
BRADLEY v. HENRY 16517
gator on the case and with Bradley’s family, and he had been
able over the “ensuing months” to familiarize himself with its
key issues. Jordan concluded: “My grasp of the case is of a
sufficient nature such that with the time remaining before
trial, I see no reason not to be ready at the time of trial.”
The trial court conducted a hearing on Bradley’s substitu-
tion motion shortly after its filing. The court’s chief concern
appeared to be over the delay that a substitution might cause
in light of the case’s history. Jordan explained that his substi-
tution was not part of a delaying tactic or a procedural hin-
drance that would disrupt “the ordinary process of the
proceedings.” Rather, he stated that “[a]s the Court is aware
from my declarations, that process is not in danger from my
standpoint today. I have told the Court that I am going to be
ready for trial on the 22nd of February. I don’t see that chang-
ing at this point.” After discussing the relevant cases, in which
substitutions were jeopardized because of the delays they
would cause, Jordan reiterated, “I am here to represent that
that delay that this Court may be concerned with is not pres-
ent in this case.”
During the hearing, the trial court also expressed apprehen-
sion over Bradley’s potential inability to pay her counsel,
which might result in a future additional substitution. The
court asked Bradley, “do you personally have the funds to pay
for counsel to represent you now and through trial . . . ?” She
responded, “I don’t know.” Jordan then interjected, “if I may
interrupt for a second, does the Court want to go into the
financial arrangements to satisfy itself that, based upon its
prior experience, counsel that is formerly —”. Before he
could finish, the trial court itself interrupted, stating, “I don’t
really want to do that.” It did, however, permit Jordan to
briefly address what the court stated was its “feeling that if
counsel isn’t paid and hired by the defendant, counsel is and
historically has been in this case susceptible to the ongoing
method of substitution . . . .” Jordan replied, “Taking into
account my comment that there was no intention to delay in
16518 BRADLEY v. HENRY
this case, I encompassed in that statement the concern about
the financial relationship between myself and either Ms.
Bradley or her family, and I can assure the Court that that is
not a concern at this point.” He added, “it would be disingen-
uous for me to come in a month and a half before trial just to
leave in three weeks. . . . I don’t think that would work with
the Court.”
Following this discussion, the trial court concluded that
“the ongoing method of substitution has delayed this case for
so long . . . there is a significant and I do believe determina-
tive danger of delay in substituting counsel at this point, so
the motion for substitution of counsel is denied.” The Califor-
nia Court of Appeal subsequently affirmed the decision, citing
the reasons the trial court discussed as well as noting that Jor-
dan’s assurances that he was prepared to begin the trial on
time were equivocal and that Bradley might delay the trial by
suing Jordan in order to manufacture a conflict.
It is undisputed that three of the five reasons the Supreme
Court articulated in Wheat for denying a criminal defendant
the right to the counsel of her choice were not applicable: Jor-
dan was a member of the California bar, was willing to repre-
sent Bradley, and had no relationship with the government or
other identified ethical conflict. The critical question is there-
fore whether the denial of Bradley’s motion was justified
because (1) she could not afford her attorney’s fees and her
attorney had not agreed to represent her without pay, (2) there
was a serious potential for an unwaivable conflict of interest,
or (3) the substitution would delay the start of Bradley’s trial.
A. Attorney’s Fees
The principal focus of the limited consideration given by
the trial court at the hearing on the motion to substitute was
on the financial arrangement with Jordan. Given that Bradley
did not have substantial assets of her own and had depended
upon her father for financial support, and that Bradley’s prior
BRADLEY v. HENRY 16519
retained counsel withdrew for alleged non-payment, the trial
court had reason for concern. It was not inappropriate for the
trial court to inquire into the possibility that Jordan might
himself subsequently move to withdraw for financial reasons,
forcing further delay in the trial.
The court’s concern does not justify the court’s failure to
inquire seriously into the subject, however. A review of the
record makes it clear that the trial court failed to conduct an
inquiry sufficient to justify its denial of Bradley’s Sixth
Amendment right to retain the counsel of her choice. Notably,
the court never asked whether Jordan was prepared to repre-
sent Bradley without being paid more than he had already
been paid. It did not ask whether there was a secure source of
funding for any future payments that would be required. Nor
did the court appear to consider the fact that the court had the
power to deny any future motion to withdraw which Jordan
might seek to file. The trial court could have told Jordan that
he would be bound by his commitment to see the case through
and asked Jordan whether he was prepared to proceed on
those terms. But that question was not asked, and a negative
answer from Jordan cannot be assumed. Having failed to
explore the subject seriously, let alone to make a record dem-
onstrating a realistic possibility that financial concerns would
lead Jordan to move to withdraw in the future, it was unrea-
sonable for the court simply to deny Bradley her right to
retained counsel of her choice instead.
The paucity of serious inquiry makes apparent that the trial
court had already concluded that it was not going to permit
the substitution. Moreover, in the absence of such an inquiry,
Jordan’s assertion that there were no financial concerns that
would interfere with his representation of Bradley was undis-
puted. The record before the court provided insufficient basis
for a finding that Bradley could not afford her chosen counsel
and for the resulting denial of Bradley’s right to retained
counsel of her choice.
16520 BRADLEY v. HENRY
B. Conflict of Interest
The California Court of Appeal concluded that, even if Jor-
dan “had the best of intentions” and “was adequately compen-
sated,” Bradley “could attempt to manipulate the system by
filing a lawsuit against Jordan, creating a conflict that would
preclude his continued representation of her.” As discussed
above, the existence of a conflict of interest may limit a
defendant’s right to retain a particular attorney. That potential
exists in every single case, however. That theoretical possibil-
ity does not mean that the right to retained counsel of choice
can simply be waved away.
The Supreme Court has held that to deny a criminal defen-
dant the right to the counsel of her choice, the government
must make “a showing of a serious potential for conflict.”
Wheat, 486 U.S. at 164. In addition, the Court has held that
“[t]he evaluation of the facts and circumstances of each case
under this standard must be left primarily to the informed
judgment of the trial court,” which must “be allowed substan-
tial latitude in refusing waivers of conflicts of interest.” Id. at
163-64.
Not only is there nothing in the record to demonstrate that
the government made any showing whatsoever before the trial
court on the issue of a conflict of interest, the trial court did
not even discuss the potential for such a conflict to arise. Nor
did the court determine that, if a conflict were to arise here,
it would be unwaivable. Though it is true that Bradley had her
differences with appointed counsel Andrian, who had been
appointed to represent her over her objections, there is noth-
ing that supports speculation that she would have any such
differences with Jordan, the attorney she affirmatively sought.
As the issue was neither raised before nor addressed by the
trial court, the California Court of Appeal’s conclusion that
the potential for a conflict of interest supported the trial
court’s denial of Bradley’s motion for substitution was con-
trary to clearly established Supreme Court precedent.
BRADLEY v. HENRY 16521
C. Potential for Delay
Both the trial court and the Court of Appeal held that the
potential delay that Jordan’s substitution might engender was
sufficient to warrant abridging Bradley’s Sixth Amendment
rights. Although there are undeniably circumstances under
which the demands of a court’s calendar and the need to bring
a case to trial may constitute compelling justifications for
denying a criminal defendant her right to retain the counsel of
her choice, such that recognition of this additional limitation
on the Sixth Amendment does not constitute an unreasonable
extension of applicable Supreme Court precedent, those cir-
cumstances were not present here.
In this case there was, at most, a potential risk that granting
Bradley’s motion might lead to future circumstances under
which her new attorney might request a continuance. There
was no evidence whatsoever that his representation would
inevitably cause any actual delay of Bradley’s trial, or even
that there was any substantial risk of delay.
The trial court cited Bradley’s prior substitutions as causing
“interminable delays.” As Judge Noonan’s opinion demon-
strates, however, only a limited portion of the delay was
attributable to Bradley. More importantly, the proposed new
attorney, Jordan, was aware of the scheduled trial date and
sought no additional time to prepare. To the contrary, Jordan
submitted a sworn declaration in which he attested that he
would be ready to begin on the trial date then scheduled. Jor-
dan was also clear during the hearing that he was not request-
ing a continuance.
To justify its decision the California Court of Appeal seized
on potentially equivocal language in Jordan’s statements. It
noted that he attested only that he saw “no reason not to be
ready at the time of trial” and that he did not “see that chang-
ing at this point.” That Jordan failed to use the firmest and
most direct possible terms to express himself does not support
16522 BRADLEY v. HENRY
the Court of Appeal’s speculation that he would later seek a
continuance. Lawyers are trained to be cautious. It is not a
surprise that Jordan might not want to waive all contingencies
unless pressed to do so. For all he knew, he might have a
heart attack or be run over by a bus before the trial date. But
no fair reading of Jordan’s declaration or his statements at the
hearing could support a conclusion that he was laying the
groundwork for a future request to continue the trial, or that
he had any reason to expect that the trial court would be
receptive to such a request.
Even assuming that Jordan might have later moved for such
a continuance, the trial court had the power to deny the
motion. A denial of such a motion would likely have been
sustained under these circumstances, especially if Jordan had
been put on notice of the court’s intent to avoid further delay.
As the Supreme Court held in Morris v. Slappy, 461 U.S. 1,
11 (1983), trial courts “necessarily require a great deal of lati-
tude in scheduling trials” and are therefore accorded broad
discretion on matters of continuances. In sharp contrast to the
limited exceptions to the right to counsel of one’s choice,
“only an unreasoning and arbitrary ‘insistence upon expedi-
tiousness in the face of a justifiable request for delay’ violates
the right to the assistance of counsel.” Id. at 11-12 (quoting
Ungar v. Sarafite, 376 U.S. 575, 589 (1964)). If Jordan had
responded to the court in an equivocal fashion after that, per-
haps the denial of Bradley’s constitutional right to retain the
counsel of her choice would have rested on a stronger founda-
tion. But it was unreasonable for the court simply to deny the
substitution motion — and thus to deny Bradley’s exercise of
her right to retained counsel of choice — out of fear that
something might happen to delay the trial.
The California Court of Appeal reasoned that Jordan’s
assurances that he would be prepared were unpersuasive
because he had yet to review the twelve boxes of materials
Bradley’s appointed counsel had accumulated. Jordan had
already spent hours meeting with Bradley’s appointed coun-
BRADLEY v. HENRY 16523
sel, however, and he had discussed the case with Bradley’s
family and the investigator. Bradley also filed her motion for
substitution forty-six days, or six and a half weeks, before her
trial date. Jordan told the trial court that this was a sufficient
amount of time to properly prepare, and the trial court did not
question or dispute this representation. Not surprisingly, the
Warden has not pointed to a single case in any court where
a motion to substitute counsel was denied so far in advance
of trial because of the potential for delay.
Trial courts have a number of tools at their disposal to
ensure a fair trial and the integrity of the process without
offending the Sixth Amendment. As we previously held in
United States v. Lillie, a court may “inquire into the new
counsel’s preparedness, and to condition the granting of the
motion on defendant’s (and new counsel’s) willingness to
continue with the existing schedule.” United States v. Lillie,
989 F.2d 1054, 1056 (9th Cir. 1993) (applying Wheat, 486
U.S. at 159, and holding that a district court committed
reversible error when it denied a motion for substitution filed
the morning of trial), overruled in part on other grounds in
United States v. Garrett, 179 F.3d 1143, 1145 (9th Cir. 1999).
It may also “be justified in obtaining the defendant’s waiver
of any ineffective assistance of counsel claim growing from
the late substitution.” Id. (citing United States v. McClendon,
782 F.2d 785, 786 (9th Cir.1986)). In this case, rather than
exercise these options, the trial court simply denied Bradley’s
motion for substitution. It did so despite Jordan’s undisputed
representation, well in advance of trial, that he was prepared
to proceed without delay. As the trial court and California
Court of Appeal lacked any valid justification for depriving
Bradley of her Sixth Amendment right to the counsel of her
choice, their adjudication of her motion was contrary to
clearly established Supreme Court precedent.
III
The Supreme Court recently held that “erroneous depriva-
tion of the right to counsel of choice, with consequences that
16524 BRADLEY v. HENRY
are necessarily unquantifiable and indeterminate, unquestion-
ably qualifies as ‘structural error.’ ” Gonzalez-Lopez, 126
S.Ct. at 2564 (internal quotation omitted). It reasoned that
“[h]armless-error analysis in such a context would be a specu-
lative inquiry into what might have occurred in an alternate
universe.” Id. at 2565.
The Warden contends that Gonzalez-Lopez is inapplicable
because it was not decided until after the relevant state court
decisions in this case. That fact is of no consequence, how-
ever, as Gonzalez-Lopez is not being applied to evaluate
whether the state decisions were erroneous. See 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 390 (2000). The
California Court of Appeal found no constitutional violation
and therefore never reached the issue of whether the violation
was subject to review for harmlessness. Accordingly,
Gonzalez-Lopez has no bearing on whether its decision was
erroneous. Rather, Gonzalez-Lopez guides us in determining
the consequences of the erroneous state decision. In this case,
it requires reversal of Bradley’s conviction.
I join the judgment that the district court’s denial of Brad-
ley’s petition for writ of habeas corpus must be reversed.
SILVERMAN, Circuit Judge, with whom TALLMAN, Cir-
cuit Judge, joins, dissenting:
The majority holds that Bradley’s wrongful exclusion from
a critical hearing justifies reversal despite an explicit determi-
nation by the California Court of Appeal that the exclusion
was harmless. Furthermore, it criticizes the trial court’s denial
of Bradley’s request to replace appointed counsel with
retained counsel one month before trial, but ignores the trial
court’s reasoning which is amply supported by the facts —
Bradley’s poor track record of maintaining relationships with
previous retained counsel.
BRADLEY v. HENRY 16525
My colleagues’ de novo analysis flies in the face of those
facts and the reasoning offered by the California courts, the
law of our circuit, and the constraints of AEDPA. I respect-
fully dissent.
I. Facts
Bradley is alleged to have shot and killed the driver of a car
during an attempted carjacking on January 17, 1996. She was
charged with attempted robbery, carjacking, possession of a
short-barreled shotgun, and murder in the first degree.
Bradley was first represented by Patrick Hutchinson and
Jack Montgomery. On March 15, 1996, the trial court disqual-
ified Montgomery due to a conflict of interest. Marteen Miller
replaced Montgomery on June 10.
On October 18, 1996, Melvin Sacks replaced Hutchinson
and Miller, and was thereafter joined by Jamie Thistlewaite.
The original trial date of April 14, 1997 was continued twice,
first to July 18, 1997 and then to March 2, 1998. At some
point during this period, Bradley’s father stopped paying for
Sacks’s services. Sacks then ceased all work on the case,
causing an “irreconcilable breakdown” between him and
Bradley.
On November 12, 1997, Bradley filed a motion to substi-
tute Kerry Steigerwalt as her attorney and to continue the trial
to April 1998. A second attorney, Cynthia Dunlevy, joined
later. Both Steigerwalt and Dunlevy were retained by Mr.
Bradley for his daughter. The trial court granted the motion
with the following admonition:
I want to make it very clear to the defendant and her
father this will be the last change in counsel. We’ve
had quite a few competent lawyers coming through
the defense of the matter. This has to be the end of
the changes in that regard.
16526 BRADLEY v. HENRY
On March 4, 1998, Steigerwalt and Dunlevy requested that
they be discharged from representation. They alleged the fol-
lowing: (1) Mr. Bradley had not paid them nor their experts
in accordance with the retainer agreement, causing financial
hardship, (2) Mr. Bradley insisted that they obtain continu-
ances, became distressed when continuances were not sought,
and strategized a plan to secure more time, and (3) Mr. Brad-
ley’s actions interfered with the attorney-client relationship.
The trial court conducted an in-chambers hearing with the
Sonoma County district attorney, the trial prosecutor, a county
investigator, Dunlevy, and two new defense lawyers — Chris
Andrian and Steve Gallenson. Bradley was not present. At
this point, Dunlevy expressed concern that Mr. Bradley had
hired independent private investigators to surveil and collect
personal information about the prosecutor, which raised
understandable security concerns for the prosecutor’s safety.
Furthermore, Dunlevy suggested that Mr. Bradley had a psy-
chological hold on his daughter. He insisted on participating
in conversations between his daughter and her lawyers. He
also actively discouraged his daughter from a plea bargain
despite her earlier “intense” desire to consider such an option.
The trial court sealed the transcript of the hearing.
Soon thereafter in open court, with Bradley then present,
the court granted Dunlevy’s motion to withdraw and
appointed Andrian to represent Bradley. The trial judge said:
[T]his case is two years old. It’s way beyond the
time that it should have been on the table for trial or
settlement. I am concerned that this case would
never get to trial with retained counsel. The only
way to get the case to trial is through appointed
counsel. I am convinced of that looking at the history
of the case, the multiple attorneys who have gone
through the case on a retained basis, the failure to
properly pay for the investigation that was antici-
pated by the various lawyers working on the case.
BRADLEY v. HENRY 16527
A new trial date was set for October 26, 1998.
On October 14, 1998, Bradley sought yet another continu-
ance. Five days later, she filed an ex parte motion under Peo-
ple v. Marsden, 465 P.2d 44 (Cal. 1970), expressing
dissatisfaction with Andrian’s representation. Bradley alleged
that Andrian inadequately communicated with her, ignored
her ideas on how to prepare a defense, pursued an insanity
defense without her authorization, and did not return phone
calls from her father. The trial court found that the record did
not establish inadequate representation and denied the motion.
At this time, Andrian noted a possible conflict of interest
because Bradley had filed a complaint against him with the
state bar and may have filed a civil lawsuit against Andrian’s
firm. The trial court granted a continuance to resolve the mat-
ter. After the County agreed to indemnify Andrian, trial was
reset for February 22, 1999.
On January 7, 1999, Bradley made another motion to
replace counsel, this time to replace Andrian with a retained
attorney, Jonathan Jordan. Bradley argued that her relation-
ship with Andrian “ha[d] broken down to the point that any
possible presentation of an adequate defense has been sub-
stantially interfered with.” Jordan asserted that he would be
ready for trial and that he had no problems with the Bradley
family.
At a hearing on the motion, Bradley responded “I don’t
know” when the trial court inquired about any changes in her
financial circumstances that would have allowed her to hire
Jordan. Jordan offered to describe his financial arrangements.
The trial court declined the offer, but invited him to make a
record. The court then denied the motion, citing a “determina-
tive danger of delay in substituting counsel.”
Jordan alternatively requested that he be allowed to asso-
ciate with Andrian as co-counsel. The court denied the
16528 BRADLEY v. HENRY
motion, citing concerns about liability issues and possible
delay.
Bradley was tried and convicted on all charges.
II. Discussion
A. Right to be Present at March 4, 1998 Conference
I agree that Bradley’s due process rights were violated by
her exclusion from the March 4, 1998 in-chambers confer-
ence. Any hearing that threatens a defendant’s Sixth Amend-
ment right to representation by retained counsel must be a
fortiori a “critical stage” of the criminal proceeding, requiring
the defendant’s presence. Kentucky v. Stincer, 482 U.S. 730,
745 (1987). However, the error is subject to review for harm-
lessness. See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir.
2005) (en banc).
The California Court of Appeal made a harmlessness deter-
mination: “Given the age of the case and the trial court’s own
observations of a parade of retained attorneys passing through
its court as counsel for Bradley, we cannot imagine anything
that Bradley could have said that would have changed the
court’s ruling.”
In support of this conclusion, the court found that Bradley
had no personal knowledge of her father’s financial arrange-
ments with Dunlevy, nor any direct knowledge about her
father’s alleged interference with the case. Absent clear and
convincing evidence to the contrary, we must presume the
correctness of these findings. See 28 U.S.C. § 2254(e)(1).
In her opening brief, Bradley now argues that, had she been
present and allowed to speak at the conference, she would
have presented contrary evidence that Dunlevy had been ade-
quately paid, that her father had not hired an investigator to
harass the prosecutor, and that her father had not interfered
BRADLEY v. HENRY 16529
with the attorney-client relationship. This is nothing more
than the argument of counsel — speculation unsupported by
testimony, affidavit or declaration.1 Lacking any such evi-
dence, Bradley cannot now meet her burden of rebutting the
factual findings underlying the Court of Appeal’s harmless-
ness determination.
B. Right to Substitute Jordan on January 7, 1999
Under the Sixth Amendment, a defendant who does not
require appointed counsel has the right to choose who will
represent him. See Wheat v. United States, 486 U.S. 153, 159
(1988); see also United States v. Gonzales-Lopez, 126 S.Ct.
2557, 2561 (2006). However, this right is not absolute. A trial
court has wide latitude in balancing the right against the need
to avoid conflicts of interest, the need to manage its calendar,
and the need to ensure that the trial is conducted within ethi-
cal standards. Gonzales-Lopez, 126 S.Ct. at 2565-66; see also
United States v. Kelm, 827 F.2d 1319, 1322 (9th Cir. 1987)
(“[A] court must be wary against the ‘right of counsel’ being
used as a ploy to gain time or effect delay.”).
Jordan was not hired by Bradley or being paid by her, but
by her father. Such a dynamic had caused numerous delays in
the past. Jordan attempted to assuage the court’s concerns, but
as the California Court of Appeal found, “those assurances
were not as definitive as Bradley portrays them.” For exam-
ple, Jordan said that “[he saw] no reason” not to be ready for
trial and “[didn’t] see that changing at this point” (emphasis
added). He similarly qualified his assurances about his finan-
cial relationship with the client, noting that it “[was] not a
concern at this point” (emphasis added). The California Court
of Appeal also noted Jordan’s limited preparation in the case
1
It is also significant to note that Bradley did not seek an evidentiary
hearing in the California courts to substantiate these factual allegations.
See 28 U.S.C. § 2254(e)(2); see also Williams v. Taylor, 529 U.S. 420,
436-37 (2000).
16530 BRADLEY v. HENRY
at the time of the motion. Although he had met with Bradley’s
family, a former investigator on the case, and Bradley herself,
he had not had reviewed any of the twelve boxes of case
materials, yet the trial was only a month away.
Faced with these concerns, the trial court denied the
motion, finding that “in spite of the comments and [inten-
tions] and current offers of counsel, there is significant and I
do believe determinative danger of delay in substituting coun-
sel at this point.” The California Court of Appeal held:
“Given the magnitude of the accumulated materials, the pau-
city of Jordan’s preparations and the fact that the special cir-
cumstances allegation had not yet been dismissed, Jordan’s
equivocal assurances of readiness were clearly inadequate.”
In light of the nearly three-year pretrial history of unrelent-
ing problems with counsel and the continuances they caused,
the state court’s ruling was not contrary to or an unreasonable
application of Wheat. See 28 U.S.C. § 2254(d)(1). As the Cal-
ifornia Court of Appeal found, given the complexity and
severity of the criminal charges, the trial court’s skepticism of
Jordan’s assurances that he would be ready for trial in a
month was not without basis. The same goes for the trial
court’s refusal to allow Jordan to associate as co-counsel with
Andrian. The California Court of Appeal was not unreason-
able in holding that Jordan’s proposed role as co-counsel was
a recipe for conflict with existing counsel that could be
expected to result in still more delay.
The trial court had a duty to protect Bradley’s right to
counsel, but it also had a duty to bring this case to trial. In the
face of challenging circumstances, the state court reasonably
discharged both of these duties. The decision to do so was
adequately supported by the record before us and the determi-
nation by the California Court of Appeal that any error in
excluding Bradley from the chambers conference was harm-
less is not objectively unreasonable under AEDPA. I would
affirm the district court.