FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DUSTIN VADE MILLER,
Petitioner-Appellant,
No. 06-36090
v.
SHARON BLACKETTER, D.C. No.
CV-05-00267-PA
Superintendent, Eastern Oregon
OPINION
Correctional Institution,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted
December 4, 2007—Portland, Oregon
Filed May 12, 2008
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge O’Scannlain
5273
MILLER v. BLACKETTER 5275
COUNSEL
Kristina Hellman, Assistant Federal Public Defender, Port-
land, Oregon, argued the cause for the petitioner-appellant
and filed a brief; Patrick J. Ehlers, Assistant Federal Public
Defender, Portland, Oregon, also filed a brief.
Carolyn Alexander, Assistant Attorney General, State of Ore-
gon, Salem, Oregon, argued the cause for the respondent-
5276 MILLER v. BLACKETTER
appellee and filed a brief; Mary H. Williams, Solicitor Gen-
eral, and Hardy Myers, Attorney General, State of Oregon,
Salem, Oregon, were on the brief.
OPINION
O’SCANNLAIN, Circuit Judge:
We are called upon to decide whether a defendant, whose
attorney moved on the morning of trial to withdraw from the
case and to postpone proceedings, was denied his right to the
counsel of his choice when the trial judge denied the motions.
I
A
Thirty-four-year-old Dustin Vade Miller, unarmed but pur-
porting to be holding a gun, robbed several small retail estab-
lishments over a ten-day period in 1998. He was apprehended
by police, fought back, and later confessed to the crimes. Mil-
ler was charged in Lane County, Oregon, with several counts
of robbery, assaulting a public safety officer, and resisting
arrest. He pled not guilty to all counts and Janise Augur, of
the Lane County Public Defender’s Office, was appointed to
represent him. Trial was scheduled, but was continued for
thirty days upon Augur’s motion because she had not yet
received a tape of Miller’s confession from the State. During
this period, Augur and the State attempted to negotiate a plea
agreement, but never agreed to the terms.
On the evening before trial, Miller left a telephone message
on Augur’s home answering machine stating that he was no
longer comfortable with her representation and that he wanted
a new lawyer. In response, Augur filed motions the next
morning to withdraw as Miller’s counsel and to postpone trial.
MILLER v. BLACKETTER 5277
Oregon Circuit Judge Lyle C. Velure immediately held a pro-
ceeding in open court to consider the motions, with Miller
present. Augur spoke first and explained that Miller’s father
(“Mr. Miller”) had told his son the day before that he would
be willing to pay for private representation. In addition,
Augur described Miller’s phone call and stated that he had
become unwilling to communicate with her further about the
case. Given these developments, she told the judge that she
felt she could no longer effectively represent Miller. Finally,
Augur speculated that a new attorney could be ready to try the
case “within a month,” but conceded that Miller had not yet
retained a new attorney.
The prosecutor objected to postponement, arguing that the
State was ready to proceed and that all of its witnesses were
present at the courthouse that morning. Further, the prosecutor
characterized Augur as competent and able counsel, noting
that she had actively attempted to negotiate a plea on Miller’s
behalf and that she had recently filed a pretrial motion to sup-
press Miller’s confession. The prosecutor also argued that the
motions made that morning were simply Miller’s attempt to
delay trial and to pressure the State into a more favorable plea
agreement than it had offered previously.
The trial judge then expressed his view that Augur was
“one of the most competent criminal defense attorneys in the
county” and also noted that one continuance had already been
granted.1 The judge then heard from Miller, who alleged that
Augur had not met with him until two days before trial, leav-
ing him “completely in the dark” regarding the status of his
case. Miller went on to contend that Augur “had no defense
prepared,” specifically noting that she had not arranged for
1
The parties dispute whether this initial continuance, due to the non-
delivery of evidence, was caused by the State’s negligence or Augur’s,
and the record is silent on this point. Still, because this was the trial
judge’s sole reference to the continuance, we do not view it as a material
factor in his ruling on the motions.
5278 MILLER v. BLACKETTER
any witnesses to testify on his behalf. In response to the trial
judge’s questions, however, Miller acknowledged that Augur
had met with him on each of the two previous days and con-
ceded that he never informed her of any witnesses who could
testify on his behalf.
Judge Velure also allowed Miller’s father to address the
court. Mr. Miller explained his belated willingness to pay for
private counsel by noting that his son had informed him of the
potential length of his sentence only during a phone conversa-
tion the night before. Although Mr. Miller had previously
decided to stay out of his son’s legal troubles, he explained
that he felt compelled to intervene once he learned of the “to-
tally ridiculous, ridiculous” amount of prison time Miller was
facing. Mr. Miller informed the court that he hoped to hire an
attorney who could “talk candidly” and be “available to me,”
and that he had a particular attorney in mind, Fred Hartstrom,
a friend from “many years back.” When asked, Mr. Miller
stated that he had not yet been able to reach Hartstrom, but
that he had “made the call” that morning.
After his father spoke, Miller reiterated his complaints
about Augur’s preparation, and Augur reiterated her belief
that Miller would not cooperate with her. The trial judge then
took a ten-minute recess, during which he reviewed Augur’s
pretrial motion to suppress Miller’s confession. Upon his
return, the judge denied Augur’s motions to withdraw and to
continue trial, emphasizing his reluctance to encourage crimi-
nal defendants in filing last-minute motions to fire their law-
yers. He also found Miller’s allegations that Augur was
unprepared unfounded, noting specifically that her pretrial
motion was “appropriately prepared and appropriately
formed.” Nevertheless, in response to Miller’s concerns, the
trial judge decided to delay opening statements from the cur-
rent date, a Friday, until the following Tuesday, giving Augur
and Miller the intervening time to work together on his
defense. In addition, the judge emphasized to Miller that he
would be “extremely liberal” in construing procedural rules in
MILLER v. BLACKETTER 5279
Miller’s favor and that he would permit Augur to introduce
any witnesses or evidence Miller revealed to her, even if
Augur had not previously supplied such information to the
prosecution.
Augur renewed her motion to withdraw, which was again
denied. Next, Mr. Miller addressed the court, stating that
while he had “no problem” with the ruling, which was “good
enough and fair enough,” he remained “really frightened” by
the expected sentence. The trial judge assured Mr. Miller that
he would ensure that his son would be “fairly and adequately
represented” and emphasized that Miller needed to take
advantage of the short delay the judge had provided to com-
municate with his attorney.
Later, in exchange for the State’s promise to recommend a
reduced sentence, Miller waived his right to a jury trial and
agreed to a stipulated facts trial. The trial judge found Miller
guilty on all counts and imposed a 210-month sentence, con-
sistent with the State’s recommendation.
B
Miller directly appealed his convictions to the Oregon
Court of Appeals, which affirmed without opinion, and the
Oregon Supreme Court denied review. Next, Miller filed for
post conviction relief in Oregon state court, but the court
denied the petition in its entirety. Again, the Oregon Court of
Appeals affirmed without opinion, and the Oregon Supreme
Court denied review.
On February 5, 2005, Miller filed a pro se petition for a
writ of habeas corpus in the United States District Court for
the District of Oregon. The district court construed all of Mil-
ler’s claims as waived except his contention that the trial
judge violated his Sixth Amendment rights by denying
Augur’s motions to withdraw and to postpone trial. The dis-
trict court denied the petition, concluding that no clearly
5280 MILLER v. BLACKETTER
established federal law provided that (1) the trial judge’s deci-
sion was a denial of Miller’s right to counsel of choice, or that
(2) the trial judge’s inquiry into the breakdown in Miller and
Augur’s relationship deprived him of the effective assistance
of counsel. Miller timely filed this appeal, challenging only
the first of the district court’s determinations.)
II
Miller’s sole claim on appeal is that the state trial judge’s
denial of Augur’s motions to withdraw and to postpone vio-
lated his right to the counsel of his choice. At the outset, we
emphasize that because the question has not been preserved,
we do not consider whether the deterioration in Miller and
Augur’s relationship prevented the effective assistance of
counsel. Instead, our inquiry is limited to the narrower ques-
tion of whether the trial judge’s denial of Augur’s motions
deprived Miller of his right to choice of counsel.
A
Miller’s claim is governed by the Antiterrorism and Effec-
tive Death Penalty Act of 1996, which limits relief in cases
such as this to situations in which the state court’s decision
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); see Wil-
liams v. Taylor, 529 U.S. 362, 407-09 (2000). Thus, to deter-
mine whether Miller is entitled to habeas relief, we first
consider the Supreme Court precedent in existence at the time
of the trial judge’s decision that applies to Miller’s claim.
Second, we consider whether the trial judge’s decision was
contrary to or involved an unreasonable application of that pre-
cedent.2 As the Supreme Court recently emphasized in Carey
2
In reviewing a petition for habeas, we look to “the last reasoned state-
court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
Because the Oregon appellate courts summarily affirmed Miller’s convic-
tions and summarily denied his petition for post-conviction relief, the trial
judge’s decision to deny the motions is the proper focus of our analysis.
MILLER v. BLACKETTER 5281
v. Musladin, 127 S. Ct. 649 (2006), only the “holdings, as
opposed to the dicta, of [the] Court’s decisions” are relevant
to this analysis. Id. at 653 (internal quotation marks omitted).
B
[1] The Sixth Amendment provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” U.S. CONST. amend.
VI. This right “guarantees a defendant the right to be repre-
sented by an otherwise qualified attorney whom that defen-
dant can afford to hire, or who is willing to represent the
defendant even though he is without funds.” Caplin & Drys-
dale, Chartered v. United States, 491 U.S. 617, 624-25
(1989); see also 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.”). In addition, a defen-
dant who establishes that his right to counsel of choice was
violated need not demonstrate prejudice in order to be entitled
to relief, as a defendant claiming ineffective assistance of
counsel is required to do. United States v. Gonzalez-Lopez,
126 S. Ct. 2557, 2562 (2006) (explaining that once the right
to counsel of choice is violated, “[n]o additional showing of
prejudice is required to make the violation ‘complete.’ ”).
[2] The Supreme Court has emphasized, however, that the
right to counsel of choice is “circumscribed in several impor-
tant respects.” Wheat v. United States, 486 U.S. 153, 159
(1988). Indeed, there are four specific situations in which the
Sixth Amendment does not entitle a defendant to preferred
counsel: A defendant does not have the right to be represented
by (1) an attorney he cannot afford; (2) an attorney who is not
willing to represent the defendant; (3) an attorney with a con-
flict of interest; or (4) an advocate (other than himself) who
is not a member of the bar. Id. In addition, the Court has
established that a trial court requires “wide latitude in balanc-
ing the right to counsel of choice against the needs of fairness,
5282 MILLER v. BLACKETTER
and against the demands of its calendar.” Gonzalez-Lopez,
126 S. Ct. at 2565-66 (citation omitted). As such, trial courts
retain the discretion to “make scheduling and other decisions
that effectively exclude a defendant’s first choice of counsel.”
Id. at 2566.
With these principles set forth, we turn to the question of
whether the trial judge’s decision to deny Augur’s motions to
withdraw and to continue the trial date either contradicted or
unreasonably applied their commands.3
C
It is clear that the trial judge’s decision was not contrary to
clearly established Supreme Court precedent, as the Court has
never considered a case involving facts sufficiently similar to
those presented here to be controlling, nor did the trial judge
apply a rule which contradicted the Court’s instructions. See
Williams, 529 U.S. at 405-06 (explaining that a state court’s
decision will be “contrary to” clearly established federal law
where the state court “applies a rule that contradicts the gov-
erning law” set forth by the Supreme Court or where it “con-
fronts a set of facts that are materially indistinguishable” from
one of the Court’s decisions and nevertheless arrives at a dif-
ferent result). Still, a state court may unreasonably apply
clearly established federal law where it “either unreasonably
extends a legal principle from [Supreme Court] precedent to
a new context where it should not apply or unreasonably
refuses to extend that principle to a new context where it
should apply.” Id. at 407. Thus, we consider whether the trial
judge’s decision was an unreasonable exercise of its discre-
3
We reject Miller’s suggestion that the district court deemed his Sixth
Amendment claim waived. While the district court noted that Miller “may
have waived” his right to counsel of choice, it expressly stated that it
would treat the claim as preserved and proceeded to assess the merits of
Miller’s petition at length in a reasoned decision. It is that decision which
we review here.
MILLER v. BLACKETTER 5283
tion to balance Miller’s right to his chosen counsel against
concerns of fairness and scheduling. See Gonzalez-Lopez, 126
S. Ct. at 2565-66. We identify three factors as particularly rel-
evant to the trial court’s decision.4
1
[3] First, at the time Augur moved to withdraw and to post-
pone trial, Miller had not yet retained another attorney to take
her place. In Gonzalez-Lopez, the Supreme Court accepted the
government’s concession that a trial court wrongfully denied
a defendant the right to counsel of choice where the court
refused to grant pro hac vice admission to an attorney the
defendant hired who was willing and prepared to begin repre-
sentation immediately. 126 S. Ct. at 2560-61. Similarly, in
Bradley v. Henry, 510 F.3d 1093 (9th Cir. 2007) (en banc)
(plurality), we held that a state trial court violated a habeas
petitioner’s right to counsel of choice when it denied her
motion to replace appointed counsel with retained counsel
who “assured [the court] that he would be ready by the date
appointed for trial.” Id. at 1096; see id. at 1102 (Clifton, J.,
concurring in the judgment).
[4] In this case, however, Miller sought a thirty-day contin-
uance during which he hoped to search for and to retain a new
lawyer with the funds his father had belatedly offered to pro-
vide. At the time of the motions, no such attorney had been
retained. While Miller’s father had placed a call to Hartstrom,
there was nothing to suggest that Hartstrom would be willing
4
Both Miller and the State devote significant attention to the procedural
adjustments the trial judge made in response to Miller’s dissatisfaction
with Augur, specifically his decisions to postpone opening statements
from Friday to Tuesday, to allow Augur to introduce evidence not dis-
closed during discovery, and to be “exceedingly liberal” in construing pro-
cedural rules in Miller’s favor. While such remedies are relevant to a
claim of ineffective assistance of counsel, Gonzalez-Lopez instructs that
they are irrelevant to a claim for denial of counsel of choice. See 126
S. Ct. at 2562.
5284 MILLER v. BLACKETTER
or available to take Miller’s case. Moreover, it was unclear
how much time a new attorney, once hired, would have
needed to prepare for Miller’s trial. Although Augur specu-
lated that preparation would take approximately one month,
other commitments in the new attorney’s schedule may have
made such a timeline unrealistic.
2
[5] Second, the trial judge reasonably concluded that Augur
was sufficiently prepared for trial. Under our precedents, the
trial judge had a duty to inquire into the problems between
Augur and Miller when they were first raised.5 Plumlee v.
Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc) (citing
Schell v. Witek, 218 F.3d 1017, 1025-26 (9th Cir. 2000) (en
banc)). The judge conducted such an inquiry, affording both
Miller and Augur an opportunity to explain the cause of Mil-
ler’s dissatisfaction. Miller’s sole contention was that Augur
was unprepared for trial, having not met with him until two
days before and having prepared no witnesses to testify. Yet
upon the judge’s questioning, Miller acknowledged that
Augur had met with him on both of the two prior days and
that he never furnished Augur with the names of any potential
witnesses. In addition, while Augur expressed concerns about
her ability to represent Miller in light of his refusal to cooper-
ate, she never indicated that she was unprepared to try the
case. Finally, the prosecution described Augur’s active
attempt to negotiate a plea agreement on Miller’s behalf and
the judge examined Augur’s pretrial motion to exclude Mil-
ler’s confession, finding it to be appropriately prepared.
5
Miller contends that the trial judge was required to conduct an ex parte
hearing on the motions. We disagree. We have approved of such devices
where a defendant alleges that his attorney has a conflict of interest. See
United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001); United
States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998). But in this case,
Miller’s only contention was that Augur was unprepared. Because the trial
judge’s inquiry and firsthand observation was sufficient to establish that
Augur was prepared to begin trial, an ex parte hearing was not required.
MILLER v. BLACKETTER 5285
In our view, this information provided the trial judge with
reasonable grounds on which to conclude that Augur was pre-
pared to try the case that morning, as scheduled. While we do
not address the question of whether an irreconcilable conflict
existed between Miller and Augur, see supra at 5280, we note
that “we are not aware of any [Supreme Court precedent] that
stands for the proposition that the Sixth Amendment is vio-
lated when a defendant is represented by a lawyer free of
actual conflicts of interest, but with whom the defendant
refuses to cooperate because of dislike or distrust.” Plumlee,
512 F.3d at 1211.
3
[6] Third, we consider the timing of Augur’s motions to
withdraw and to postpone trial. Miller was indicted sixty-
eight days before trial, and we are satisfied that such time pro-
vided him with ample opportunity to arrange for an alterna-
tive to court-appointed counsel by whatever means he saw fit,
including by seeking his father’s financial assistance. The fact
that Mr. Miller’s generosity was not prompted until the eve of
trial in no way suggests that the court denied Miller a full and
fair opportunity to seek the counsel of his choice. In any
event, we reject Miller’s suggestion that the Sixth Amend-
ment entitled him to a fair opportunity to seek the counsel of
his choice starting at the moment when his father offered to
pay for private representation.
Moreover, we note that Miller’s attorney did not move to
withdraw and to continue the trial date until the morning trial
was set to begin. The Supreme Court has held that “only [a
trial court’s] unreasoning and arbitrary ‘insistence upon expe-
ditiousness in the face of a justifiable request for delay’ ” vio-
lates the Sixth Amendment, Morris v. Slappy, 461 U.S. 1, 11-
12 (1983) (quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964)), and has emphasized the timing of the defendant’s
motion in analyzing such trial court decisions.
5286 MILLER v. BLACKETTER
[7] In Wheat, the defendant moved to substitute his attorney
only two court days before trial. 486 U.S. at 157. The
Supreme Court held that the trial court did not abuse its dis-
cretion in denying the motion, concluding that “with the
motion for substitution of counsel made so close to the time
of trial,” the trial court properly relied on “instinct and judg-
ment” and did not exceed its “broad latitude.” Id. at 163. Sim-
ilarly, in Morris, the Court held that the trial court did not
violate the defendant’s Sixth Amendment rights in denying
his motion for a continuance until the public defender initially
assigned to his case was to be available. 461 U.S. at 12. In
that case, the defendant’s public defender was hospitalized
and replaced by another public defender six days before trial.
Id. at 5. The trial court found the new attorney was prepared
and trial began on schedule. Id. at 6. The defendant did not
move for a continuance until the first day of trial, and the
Supreme Court held that the trial court was “abundantly justi-
fied” in denying the motion, noting the trial court could have
reasonably construed the defendant’s “belated request[ ]” as a
“transparent ploy for delay.” Id. at 13.
[8] Here, Miller did not express any dissatisfaction with
Augur’s representation until the day his father offered to pay
for a private attorney, and the trial judge was not presented
with the motions until the next morning, the morning trial was
set to begin. Of course, the late timing of a motion to substi-
tute counsel or to postpone trial does not always preclude
relief. See Daniels v. Woodford, 428 F.3d 1181, 1200 (9th Cir.
2005) (“Even if the trial court becomes aware of a conflict on
the eve of trial, a motion to substitute counsel is timely if the
conflict is serious enough to justify the delay. This is particu-
larly true where the trial court has reason to know of the con-
flict months before the trial but does not inquire into the
conflict.” (citation omitted)). However, in this case, with no
justification for Miller’s delay other than his father’s change
of heart, we cannot conclude that the trial judge’s decision to
deny the motions was the type of unreasoning and arbitrary
MILLER v. BLACKETTER 5287
insistence on expeditiousness that clearly established federal
law prohibits. See Morris, 461 U.S. at 11-12.
III
[9] Viewing the foregoing factors under the deferential
standard that § 2254(d)(1) requires, we conclude that the trial
judge’s decision to deny the motions to withdraw and to post-
pone trial did not exceed his discretion to balance Miller’s
right to counsel of choice against concerns of fairness and
scheduling. See Gonzalez-Lopez, 126 S. Ct. at 2565-66.
Accordingly, the district court’s denial of Miller’s petition
for a writ of habeas corpus is
AFFIRMED.