FILED
NOT FOR PUBLICATION NOV 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES B. FAULTRY, No. 14-15841
Petitioner - Appellant, D.C. No. 4:12-cv-03379-PJH
v.
MEMORANDUM*
K. ALLISON, Associate Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief District Judge, Presiding
Argued and Submitted May 13, 2015
San Francisco, California
Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.
Charles Faultry, a California state prisoner, appeals the district court’s denial
of his habeas petition. We affirm. We have previously concluded that Faretta v.
California, 422 U.S. 806 (1975), “clearly established some timing element,”
though “we still do not know the precise contours of that element.” Marshall v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005). “At most, we know that Faretta
requests made ‘weeks before trial’ are timely.” Id.; see also Moore v. Calderon,
108 F.3d 261, 265 (9th Cir. 1997).
To obtain relief, Faultry must do more than merely demonstrate that the state
court decision he challenges was in tension with our interpretation of Faretta’s
holding. He must demonstrate that the state court decision “was contrary to, or
involved an unreasonable application of,” Faretta. 28 U.S.C. § 2254(d)(1). As we
have observed, “Faretta does not articulate a specific time frame pursuant to which
a claim for self-representation qualifies as timely,” Stenson v. Lambert, 504 F.3d
873, 884 (9th Cir. 2007), nor does it preclude a consideration of factors other than
the number of weeks before trial a self-representation motion was made.
We conclude that Faultry has not established that the state court decision he
challenges was in “direct and irreconcilable conflict with Supreme Court
precedent,” Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014), nor has he
shown “that the state court’s ruling . . . was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
2
possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770,
786–87 (2011).1
We decline to expand the certificate of appealability. “Habeas claims . . .
not raised before the district court in the petition are not cognizable on appeal,”
Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) (internal quotation
marks omitted), and the “narrow exceptions” to this general rule do not apply here.
Id.
AFFIRMED.
1
Neither Marshall, 395 F.3d at 1060–61, nor Moore, 108 F.3d at 265,
compels a contrary conclusion. In Marshall, the motion was clearly untimely even
under a “weeks before trial” standard, so we did not consider the circumstances
under which a state court acts contrary to or unreasonably applies Faretta.
Although we did grant relief in Moore, that case—which involved a habeas
petition that was filed prior to AEDPA’s effective date, and which was analyzed
under both the pre- and post-AEDPA versions of 28 U.S.C. § 2254(d)—applied an
AEDPA framework that the Supreme Court subsequently abrogated. See, e.g., Van
Tran v. Lindsey, 212 F.3d 1143, 1149 n.9 (9th Cir. 2000) (“Moore . . . [is] no
longer good law.”).
3
FILED
Faultry v. Allison, No. 14-15841 NOV 19 2015
MOLLY C. DWYER, CLERK
PAEZ, Circuit Judge, dissenting U.S. COURT OF APPEALS
I respectfully dissent. I agree with the majority that we have recognized that
“Faretta ‘clearly established’ that a self-representation motion made ‘weeks before
trial’ is timely.” Mem. at 1-2. I would hold, however, that because Faultry made
his request for self-representation weeks before trial, and because there is no
dispute that Faultry’s request was “knowing and intelligent,” the state court’s
determination was contrary to Faretta’s timeliness rule. I am guided in that
conclusion by Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997), which I believe is
controlling here. There, we recognized that the relevant facts were “identical to
those in Faretta. Like Faretta, Moore made his request ‘weeks before trial.’” Id. at
265. After noting that “[i]t is undisputed that Moore’s waiver of his right to
counsel was knowing and intelligent,” we held that “[b]y failing to grant Moore’s
timely request, the trial court abridged Moore’s right to self-representation under
the Sixth Amendment.” Id.
The majority ignores Moore’s Faretta analysis because, it explains, we
granted habeas relief under an AEDPA framework that the Supreme Court later
abrogated in Williams v. Taylor, 529 U.S. 362 (2000). Mem. at 2 n.1. Although
the Supreme Court abrogated the distinction we had drawn between the two
standards for habeas relief in 28 U.S.C. § 2254(d)(1), there is nothing in Williams
that suggests our application of the “contrary to” prong in Moore’s Faretta claim
was erroneous.
In Moore, which we decided before Williams, we analyzed the timeliness of
Moore’s Faretta request under only the “contrary to” prong of § 2254(d)(1), and
not under the “unreasonable application” prong. Moore, 108 F.3d at 265 n.3. Our
understanding at that time was that the “contrary to” language governed questions
of law, while the “unreasonable application of” language governed mixed
questions of law and fact. Id. Williams made clear that this dichotomy was
incorrect. The Court proceeded to explain that a state court decision is “contrary
to” Supreme Court precedent “if the state court arrives at a conclusion opposite to
that reached by th[e] Court on a question of law,” or if it “confronts facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrives
at a result opposite to” its own. Williams, 529 U.S. at 405. We have explained
since Williams that this was the issue on which Williams abrogated Moore. See
Baker v. City of Blaine, 221 F.3d 1108, 1110 n.2 (9th Cir. 2000) (explaining that
Moore was mistaken because both “contrary to” and “unreasonable application of”
apply to both questions of law and mixed questions of law and fact following
2
Williams).1
Although the footnote in Moore explaining why we analyzed the habeas
petition under the “contrary to” prong is no longer good law, we did not err in
analyzing Moore’s habeas petition under the “contrary to” prong. See Williams,
529 U.S. at 405-06 (explaining that questions of law and factual questions may
both be analyzed under the “contrary to” prong). Further, our “contrary to”
analysis of Moore’s Faretta claim was consistent with Williams’ “contrary to”
methodology. In Moore, we explained that the facts before us were “materially
indistinguishable” from those in Faretta, but that the state court “arrive[d] at a
result opposite to” that in Faretta. Williams, 529 U.S. at 405; Moore, 108 F.3d at
265. Thus, although Williams abrogated the distinction we had drawn between the
two standards in 28 U.S.C. § 2254(d)(1), our analysis in Moore comported with
Williams’ standard for determining when a state court decision is contrary to
established Supreme Court law.
Because Williams did not abrogate Moore’s application of Faretta, we are
“bound” by its enunciation of “clearly established Supreme Court law.” Marshall
v. Taylor, 395 F.3d 1058, 1061 n.15 (9th Cir. 2005). Moore stated that it was
“contrary to” the law “clearly established by Faretta” not to grant the writ where
1
Notably, Williams does not discuss Faretta whatsoever.
3
the facts are “identical to those in Faretta.” 108 F.3d at 265. The facts that made
Moore’s situation identical to Faretta’s were that Moore made his request for self-
representation “weeks before trial,” and that there was no dispute that Moore’s
waiver was “knowing and intelligent.” Id. Under Moore, when all these facts
exist, such a request for self-representation is timely under Faretta.
Here, there is no dispute that Faultry’s waiver was knowing and intelligent.
The only question that remains is whether Moore made his request weeks before
trial. Faultry’s trial was originally scheduled for January 15, 2008. On January 16,
Faultry made his request for self-representation. At the January 16 hearing, it was
clear to the trial judge that Faultry’s trial would not begin until Faultry’s counsel
finished another trial, which had not yet started and would “probably take no more
than about two weeks.” Thereafter, the trial judge denied Faultry’s Faretta
motion. Trial did not actually begin until “almost four months later.” On this
record, which is not materially different from the circumstances in Moore, Faultry
in fact made his motion “weeks before trial.” Like Moore, who requested self-
representation days after trial had been originally scheduled but two weeks before
trial actually began, Faultry made his motion weeks before trial. See Moore, 108
F.3d at 262-63. The state court’s denial of his request was “contrary to” the
Supreme Court’s decision in Faretta.
4
For the above reasons, I would reverse the district court’s denial of habeas
relief.
5