Dwight Tamplin, Jr. v. William Muniz

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DWIGHT TAMPLIN, JR., No. 16-15832
Petitioner-Appellant,
D.C. No.
v. 1:12-cv-01633-AWI-SKO

WILLIAM MUNIZ, Warden,
Respondent-Appellee. OPINION

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding

Argued and Submitted October 16, 2017
San Francisco, California

Filed July 6, 2018

Before: Michael Daly Hawkins and William A. Fletcher,
Circuit Judges, and John A. Kronstadt,* District Judge.

Opinion by Judge W. Fletcher;
Dissent by Judge Hawkins

*
The Honorable John A. Kronstadt, United States District Judge for
the Central District of California, sitting by designation.
2 TAMPLIN V. MUNIZ

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment denying
California state prisoner Dwight Tamplin, Jr.’s petition for a
writ of habeas corpus, and remanded with instructions to
grant the writ, in a case in which Tamplin argued that his 25-
years-to-life Three Strikes sentence was obtained in violation
of his Sixth Amendment right under Faretta v. California,
422 U.S. 806 (1975).

Reviewing under the Antiterrorism and Effective Death
Penalty Act the state habeas court’s decision that Tamplin’s
Faretta claim was meritless, the panel held that the state
court’s two conclusions—that Tamplin’s request to represent
himself was equivocal, and that Tamplin waived his Sixth
Amendment right by not continuing to object after a public
defender was reappointed to represent him—were clearly
contrary to established Supreme Court law.

Reviewing de novo, the panel held that Tamplin’s request
to represent himself was timely; that Tamplin’s appellate
counsel rendered constitutionally deficient performance by
failing to raise Tamplin’s compelling Faretta claim; and that
Tamplin was prejudiced by counsel’s deficient performance.

Dissenting, Judge Hawkins wrote that Tamplin has not
established that the state court’s decision was in direct and
irreconcilable conflict with Supreme Court precedent, and has

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 TAMPLIN V. MUNIZ 3

not shown that the state court ruling applying Faretta was so
lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement.

COUNSEL

Katherine L. Hart (argued), Fresno, California, for Petitioner-
Appellant.

David Andrew Eldridge (argued), Deputy Attorney General;
Tami M. Krenzin, Supervising Deputy Attorney General;
Michael P. Farrell, Senior Assistant Attorney General; Xavier
Becerra, Attorney General; Office of the Attorney General,
Sacramento, California; for Respondent-Appellee.
4 TAMPLIN V. MUNIZ

OPINION

W. FLETCHER, Circuit Judge:

Dwight Tamplin appeals the denial of his petition for a
writ of habeas corpus. He argues that his twenty-five-years-
to-life sentence imposed under California’s Three Strikes
sentencing law was obtained in violation of his Sixth
Amendment right under Faretta v. California, 422 U.S. 806
(1975), and that he is entitled to relief under 28 U.S.C.
§ 2254. We agree.

I. Factual and Procedural Background

On May 21, 2004, a California Highway Patrol officer
stopped Tamplin and three other African-American men for
a traffic violation. The officer called for backup after he
smelled burned marijuana in the car and observed indicia of
gang affiliation. Upon searching the car, officers discovered
a .38 caliber handgun and a .357 caliber revolver. People v.
Tamplin, No. F050103, 2007 WL 1365988, at *1 (Cal. Ct.
App. May 10, 2007). Tamplin was charged in state court
with possession of a firearm by a felon. Cal. Pen. Code
§ 12021(a)(1). He was also charged with a street gang
enhancement under Cal. Pen. Code § 186.22(b)(1), as well as
four “strikes” based on his prior conviction for four criminal
offenses on May 28, 1991.

Over the course of the next nine months, Tamplin cycled
through three appointed attorneys. On February 10, 2005,
while represented by public defender Kathleen Hall, Tamplin
successfully moved to represent himself. Tamplin asked for
appointment of “assistant counsel” five days later, but his
request was denied. He represented himself without incident
 TAMPLIN V. MUNIZ 5

for the next four months. Trial was scheduled to begin on
July 14, 2005, five months after Hall had last represented
him.

On June 22, Tamplin appeared in California Superior
Court with privately retained attorney Greg Morris. A minute
order shows that Morris requested a continuance to file a
motion to substitute counsel. Two boxes on the minute order
are checked. Under the heading “ARRAIGNMENT-VOP,”
a box labeled “Sub in” is checked, with the name “Greg
Morris” handwritten in the blank following the box. Below
that, under the heading “MOTIONS,” a box labeled
“Granted” is checked, with the following handwritten text
next to it: “Mr. Morris requests a cont on the motion to file a
sub into case.” That motion was never filed, for two days
later, on June 24, Morris was no longer eligible to practice
law. His membership in the state bar was suspended in
advance of disciplinary proceedings that would ultimately
end in his disbarment for misappropriation of client funds.

At a June 30 hearing, the trial court informed Tamplin
that Morris had been suspended from practice and could not
represent him. The court asked Tamplin how he wished to
proceed. Tamplin immediately responded that he wished to
continue to represent himself, and he completed a second
waiver of counsel form.

On July 8, the court held a hearing on Tamplin’s request
to continue to represent himself. The court asked Tamplin if
he wished “to return to your status in representing yourself in
this case.” Tamplin stated that he did. The court reviewed
the waiver of counsel form that Tamplin had completed on
June 30 and thoroughly explained the rights that Tamplin
would forfeit. Tamplin confirmed that he understood. The
6 TAMPLIN V. MUNIZ

court stated that it would “make an additional inquiry,”
whether Tamplin would be prepared for trial which was still
set for July 14. Tamplin replied, “Nope.”

The court then inquired as to why Tamplin wished to
represent himself. Tamplin responded, “Not
comfortable—I’m not comfortable with anybody that’s in the
public defender’s office or anybody else that’s been hiring
[sic] me. They haven’t been representing me, they haven’t
filed anything, they haven’t done nothing that’s going to help
my case. I’m the only one who has filed anything and I’m the
only one that has done anything that is going to help my case.
Everybody else has done nothing.” The court pointed out that
Tamplin had hired his own attorney. Tamplin explained that
he had attempted to hire a private attorney because “that’s
what I felt I needed to do at the time.” Now that it turned out
that Morris, whom Tamplin had already paid, was not
available, Tamplin explained that he felt that he was “going
to give myself the best representation without feeling like I
didn’t do everything that I could to fight for me.”

The court again asked Tamplin why he attempted to retain
a private attorney. Tamplin responded, “I hired an attorney at
that time . . . because I was able to come up with the funds,
but also he had insight on my case and he—he had something
that I felt that I really couldn’t do at the time and I was like
well—actually, he was supposed to be co-counsel . . . . [H]e
was supposed to make the objections or the things that I
didn’t actually catch and follow as far as following the Rules
of Court, that’s what was supposed to be going on . . . .”
After a further exchange, Tamplin reiterated, “I’m
representing me now.” The court confirmed that Tamplin
would not be ready for trial in six days. Tamplin stated that
 TAMPLIN V. MUNIZ 7

he would not, because he needed to file more pretrial
motions.

The court then held that Tamplin would not be allowed to
represent himself. It stated, “In this case, given that he
desired counsel less than three weeks ago and hired counsel
to assist him, the court need not make any inquiry other than
that, or delve any further as to those reasons why he wanted
counsel, but obviously he wanted counsel to do things he
could not do at trial . . . .” The court stated that it would not
permit Tamplin to proceed pro se, “finding that the timeliness
is a substantial factor, along with the equivocalness and that
the court finds that it is an equivocal demand based on that
request for counsel and hiring of counsel on June the 22nd,
2005.” Tamplin responded, “[Y]ou’re going to violate my
due process rights which you just did and by denying my pro
per status, which is—I’m granted by law, and you’re doing
it—” The court cut him off: “You don’t know the law sir.”
Tamplin replied, “I don’t have to know it that much to know
that you are violating my due process rights, what you’re
doing now.”

The court gave Tamplin the choice to hire his own
attorney or to accept a public defender. Tamplin stated, “I
told you I don’t want no public defender, none of the ones
that you are going to appoint. It is going to be a conflict.”
The court asked if Tamplin could afford a private attorney.
He responded, “Well, if you order my money back [from
Morris], I can hire one.” At the end of the July 8 hearing,
after telling Tamplin that it lacked the authority to order
Morris to return the money so he could hire private counsel,
the court denied his request to represent himself and re-
appointed public defender Hall.
8 TAMPLIN V. MUNIZ

The court continued the trial for six months. The state
habeas court later wrote that the court “continued the trial
date to give petitioner’s new counsel time to prepare.” The
trial court’s action on July 8 makes clear that, no matter what
happened, the trial was almost certainly not going to begin on
July 14. Tamplin had indicated that he needed a continuance.
His re-appointed counsel, Hall, also needed a continuance.

At trial, Tamplin was convicted under California’s felon-
in-possession statute and was sentenced to forty-five years to
life under California’s Three Strikes sentencing law. On
direct appeal, the Court of Appeal affirmed his conviction but
reduced his sentence to twenty-five years to life. Tamplin’s
appointed appellate counsel on direct appeal failed to raise his
Faretta claim.

In a pro se habeas petition to the California Superior
Court, Tamplin argued that his appointed appellate counsel
was ineffective for failing to raise his Faretta claim. The
state habeas court held that appellate counsel was not
ineffective in failing to raise the claim because Tamplin’s
Faretta rights were not violated. The court based its decision
on two grounds. First, Tamplin had not unequivocally
requested to represent himself: “[P]etitioner’s hiring of Mr.
Morris after the first Faretta motion had been granted
indicates that petitioner was not unequivocal in his desire to
represent himself. Instead, it appears that he was simply
searching for a compatible attorney.” Second, Tamplin had
waived his Sixth Amendment right by acquiescing in the trial
court’s denial of his Faretta request: “Petitioner had at least
six months after the denial of the Faretta motion in which to
object to the appointment of new counsel, but he failed to do
so.”
 TAMPLIN V. MUNIZ 9

Tamplin filed a habeas petition in the California Court of
Appeal which was denied without comment. He filed a
habeas petition in the California Supreme Court, which was
also denied without comment. Tamplin then filed a habeas
petition in federal district court.

II. Standard of Review

“We review the district court’s denial of [a] § 2254
habeas corpus petition de novo.” Deck v. Jenkins, 814 F.3d
954, 977 (9th Cir. 2016).

The Antiterrorism and Effective Death Penalty Act
(“AEDPA”) governs this petition. See Lindh v. Murphy,
521 U.S. 320, 322 (1997). “Under AEDPA, ‘[w]e review the
last reasoned state court opinion[.]’ ” Visciotti v. Martel,
862 F.3d 749, 760 (9th Cir. 2016) (quoting Musladin v.
Lamarque, 555 F.3d 830, 834–35 (9th Cir. 2009)). The last
reasoned opinion in this case was the written order of the
California Superior Court on state habeas.

When a state court adjudicates a claim on the merits,
“relief may be granted only if the state court decision was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States,” or if the state court
decision rests on “an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1), (2). “[A] state-court
decision is contrary to [Supreme Court] precedent if the state
court arrives at a conclusion opposite to that reached by [the]
Court on a question of law . . . [or] if the state court confronts
facts that are materially indistinguishable from a relevant
Supreme Court precedent and arrives at [the opposite] result
10 TAMPLIN V. MUNIZ

. . . .” Williams v. Taylor, 529 U.S. 362, 405, 389 (2000). A
state court unreasonably applies Supreme Court precedent “if
the state court identifies the correct governing legal principle
from the Supreme Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Mann v.
Ryan, 828 F.3d 1143, 1151 (9th Cir. 2016) (quoting Williams,
529 U.S. at 413) (internal alterations omitted). “We may only
hold that a state court’s decision was based on an
unreasonable determination of the facts if ‘we are convinced
that an appellate panel, applying the normal standards of
appellate review, could not reasonably conclude that the
finding is supported by the record.’ ” Murray v. Schriro,
745 F.3d 984, 999 (9th Cir. 2014) (quoting Taylor v. Maddox,
366 F.3d 992, 1000 (9th Cir. 2004)).

“If we determine . . . that the adjudication of a claim on
the merits resulted in a decision contrary to or involving an
unreasonable application of clearly established federal law, or
that the state court’s decision was based on an unreasonable
determination of the facts, we evaluate the claim de novo
. . . .” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014). We
review de novo if the state court failed to reach the merits of
a properly raised issue. Visciotti, 862 F.3d at 760.

III. Discussion

A. Faretta

In Faretta v. California, 422 U.S. 806, 807 (1975), the
Supreme Court held that the Sixth Amendment guarantees
criminal defendants the right to represent themselves. Faretta
was charged with a felony in a California Superior Court.
Like Tamplin, Faretta was originally represented by a public
defender. Id. Also like Tamplin, Faretta feared that his
 TAMPLIN V. MUNIZ 11

public defender would not represent him adequately. Id. He
explained to the Superior Court that he wished to represent
himself because the public defender’s office serving his
community “was ‘very loaded down with . . . a heavy case
load.’ ” Id. He objected to the public defender’s office
specifically, not to defense attorneys in general. Indeed,
Faretta asked three times during his court proceedings that he
be appointed an attorney other than a public defender. Id. at
810 n.5. The trial court initially granted Faretta’s request to
represent himself, but not before warning Faretta that he did
not “know [the] ground rules” of court procedure. Id. at 808
n.2. Later, the court revoked Faretta’s pro se status after he
incorrectly answered its inquiries about the rules of evidence
and procedure on voir dire. Id. at 808–09 & n.3.

The Supreme Court held that the State had violated
Faretta’s Sixth Amendment right to represent himself. The
Court acknowledged that “[w]hen an accused manages his
own defense, he relinquishes, as a purely factual manner,
many of the traditional benefits associated with the right to
counsel.” Id. at 835. The Court nonetheless held that when
a criminal defendant—even one lacking in the “skill and
experience of a lawyer”—is “made aware of the dangers and
disadvantages of self-representation,” he must be permitted
to represent himself. Id. “Weeks before trial, Faretta clearly
and unequivocally declared to the trial judge that he wanted
to represent himself and did not want counsel.” Id. “In
forcing Faretta, under these circumstances, to accept against
his will a state-appointed public defender, the California
courts deprived him of his constitutional right to conduct his
own defense.” Id. at 836 (emphasis added).
12 TAMPLIN V. MUNIZ

B. Superior Court’s Decision on State Habeas

The Superior Court on state habeas concluded for two
reasons that Tamplin’s Faretta claim was meritless, and that
appellate counsel was therefore not ineffective in failing to
raise it. First, the court concluded that Tamplin’s request to
represent himself was equivocal. Second, the court
concluded that Tamplin waived his Sixth Amendment right
by acquiescing in the trial court’s appointment of the public
defender to represent him. Both conclusions were clearly
contrary to established Supreme Court law. We take these
conclusions in turn.

1. Unequivocal Request

The state habeas court concluded that Tamplin’s desire to
hire private counsel rendered equivocal his request to
represent himself. This conclusion is clearly contrary to
Faretta. As we discuss in detail below, Tamplin did not
make a new Faretta request on June 22 and July 8. He had
been representing himself since February 10, and he sought
only to continue that self-representation. It may be that the
clarity required for an entirely new Faretta request is greater
than for a request to continue an uninterrupted self-
representation. However, we need not address that question,
for Tamplin’s request was unambiguous under any standard.

A criminal defendant’s unsuccessful attempt to hire
private counsel does not make equivocal his request to
represent himself if the only alternative to self-representation
is representation by a public defender. This is clear from
Faretta itself. Faretta moved three times for the
“appointment of a lawyer other than the public defender,”
clearly indicating that he did not object to being represented.
 TAMPLIN V. MUNIZ 13

See Faretta, 422 U.S. at 810 n.5. Indeed, he wanted to be
represented. His only objection was to representation by a
public defender. See id. at 807. When presented with the
choice of representing himself or being represented by a
public defender, Faretta chose to represent himself. The
Supreme Court held that the state court violated Faretta’s
Sixth Amendment right “[i]n forcing Faretta . . . to accept
against his will a state-appointed public defender.” Id. at 836
(emphasis added).

Tamplin’s case is indistinguishable from Faretta’s. His
request to represent himself rather than be represented by a
public defender was unequivocal. When asked on June 30
how he wished to proceed when he learned that private
counsel Morris had been suspended and could not represent
him, Tamplin immediately declared his desire to proceed pro
se, and he executed on the spot a written waiver of rights
form. More than a week later, at the July 8 hearing, he was
strongly, even fervently, committed to self-representation.
He consistently maintained his position through a long and
thorough colloquy.

Tamplin’s exchange with the trial court on July 8 reads
like an exercise in how many ways a defendant can say that
he wants to represent himself. In succession: (1) “[Y]ou
don’t wish to have counsel appointed to represent you?”
“No.” (2) “[I]t’s your request to return to your status in
representing yourself in this case . . . ?” “Yes.” (3) “I’m
going to represent myself . . . .” (4) “I have a right to go pro
per at this time. I’m trying to go back to pro per.” (5) “I’m
going to give myself the best representation without feeling
like I didn’t do everything that I could to fight for me.”
(6) “I’m representing me now.” “You’re still represented by
Mr. Morris.” “All right. Then I’ll make that request.” (7) “I
14 TAMPLIN V. MUNIZ

told you I don’t want no public defender, none of the ones
that you are going to appoint.” Then, immediately after the
trial court denied his request, Tamplin twice accused the court
of violating his due process rights.

Tamplin recognized in his colloquy with the trial court
that an attorney could provide assistance in technical and
procedural matters, but that hardly made his request
equivocal. Under Faretta, a defendant’s “technical legal
knowledge . . . [is] not relevant to an assessment of his
knowing exercise of the right to defend himself.” Id. at 836.
“A defendant need not himself have the skill and experience
of a lawyer in order competently and intelligently to choose
self-representation . . . .” Id. at 835. A defendant’s choice to
represent himself necessarily entails a weighing of pros and
cons. Foregoing an attorney will virtually always mean that
the defendant will have the responsibility to manage aspects
of trial for which he is ill-equipped. A defendant may
understand these limitations but still prefer to represent
himself. Indeed, he must acknowledge his limits in order to
waive his right to counsel. A Faretta waiver is not
competently made unless the defendant understands the
“dangers and disadvantages of self-representation.” Id. Here,
Tamplin conceded that there were technical aspects of the
trial with which he would necessarily be unfamiliar but still
maintained that he was “going to give myself the best
representation without feeling like I didn’t do everything that
I could to fight for me.” Under Faretta, the state court was
required to respect Tamplin’s wish, whether or not he could
“personally handle” complying with the rules of court.
 TAMPLIN V. MUNIZ 15

2. Waiver by Acquiescence

After the state trial court denied Tamplin’s request to
represent himself on July 8, and after Tamplin made clear his
objection to the court’s ruling, Tamplin did not object again.
The state habeas court held that because Tamplin did not
object again, he had waived his Sixth Amendment right by
“acquiescing” in the court’s ruling. This holding is clearly
contrary to Faretta.

Faretta held, without qualification, that a defendant who
makes an unequivocal and timely request to represent himself
has a Sixth Amendment right to self-representation, and that
a denial of self-representation in the face of such a request is
a violation of that right. 422 U.S. at 835–36. The Sixth
Amendment violation is complete at the time of the court’s
denial.

The state habeas court relied on People v. Rudd, 63 Cal.
App. 4th 620 (1998), in concluding that Tamplin’s
acquiescence constituted a waiver of his Sixth Amendment
claim. The California Court of Appeal held in Rudd that a
defendant who makes a timely and unequivocal request to
represent himself can subsequently waive his Sixth
Amendment right by acquiescing in counsel’s representation
by failing to continue to object. If the defendant acquiesces
and thereby waives his right to self-representation, the Court
of Appeal held, his Sixth Amendment rights have not been
violated. Id. at 630–31. The Court of Appeal in Rudd based
its acquiescence rule on its reading of Faretta and McKaskle
v. Wiggins, 465 U.S. 168, 172 (1984). The state habeas court,
relying on Rudd, held that Tamplin had acquiesced in the re-
appointment of public defender Hall.
16 TAMPLIN V. MUNIZ

The Court of Appeal in Rudd relied on the following
sentence from Faretta: “Unless the accused has acquiesced
in such representation, the defense presented is not the
defense guaranteed him by the Constitution, for, in a very real
sense, it is not his defense.” Rudd, 63 Cal. App. 4th at
630–31 (emphasis omitted) (quoting Faretta, 422 U.S. at
821). The Rudd court read that sentence in isolation from its
context. The context in Faretta is as follows:

[W]hen a defendant chooses to have a lawyer
manage and present his case, law and tradition
may allocate to the counsel the power to make
binding decisions of trial strategy in many
areas. This allocation can only be justified,
however, by the defendant’s consent, at the
outset, to accept counsel as his representative.
An unwanted counsel “represents” the
defendant only through a tenuous and
unacceptable legal fiction. Unless the accused
has acquiesced in such representation, the
defense presented it not the defense
guaranteed him by the Constitution, for, in a
very real sense, it is not his defense.

422 U.S. at 820–21 (first, second and third emphases added).
This passage says, unsurprisingly, that a criminal defendant
has “acquiesced in such representation” when he “chooses”
“at the outset, to accept counsel as his representative.” The
passage has nothing to do with a defendant’s behavior after
he has unequivocally requested to proceed pro se, and after
the trial court has improperly refused that request. The
passage cannot be reasonably interpreted to mean that a
defendant’s failure to continue to object after the trial court
 TAMPLIN V. MUNIZ 17

has violated Faretta constitutes acquiescence in the
appointment of a public defender.

In McKaskle, the Supreme Court held that the
participation of stand-by counsel is not inconsistent with the
Sixth Amendment right of a criminal defendant to represent
himself or herself. In the case before us, stand-by counsel is
not at issue.

The state habeas court’s conclusion that Tamplin waived
his Sixth Amendment right by not continuing to object after
public defender Hall was re-appointed was clearly contrary to
Faretta.

3. Timeliness of Tamplin’s Request

On appeal to us, the State argues that Tamplin’s request
to represent himself was untimely.

a. AEDPA Deference or De Novo Decision

A preliminary question is whether we give deference
under AEDPA to the state habeas court on the question
whether Tamplin’s request was timely, or whether we address
that question de novo. Our dissenting colleague contends that
we must give deference. We disagree.

It is settled law that we give deference to the latest
reasoned decision of a state court. Visciotti, 862 F.3d at 760.
However, if the last reasoned decision did not address a
properly raised question, we decide the question de novo. Id.;
Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc)
(“We confine our § 2254(d)(1) analysis to the state court’s
actual decisions and analysis. . . . Indeed, if we were to defer
18 TAMPLIN V. MUNIZ

to some hypothetical alternative rationale when the state
court’s actual reasoning evidences a § 2254(d)(1) error, we
would distort the purpose of AEDPA.” (emphasis in
original)); cf. Harrington v. Richter, 562 U.S. 86, 98 (2011)
(when state court issues an unreasoned summary order
deciding a case on the merits, we assume that the court
resolved questions necessary to its decision). The state
habeas court, which provided the last reasoned decision, gave
two reasons for its decision, either of which, if valid, sufficed
to support its result. The court did not need to reach the
question whether Tamplin’s request was timely, and it did not
do so.

The state habeas court explained its decision in a five-
page written order, containing just under four pages of actual
text. The first page of text recites the procedural history of
the case. The second page quotes passages from California
court decisions interpreting Faretta.

The order then recites the facts as follows:

In the present case, the petitioner
originally moved to represent himself in
February of 2005, and the court granted the
motion. Then, in June of 2005, petitioner
hired Greg Morris to represent him. Mr.
Morris apparently substituted into the case on
June 22, 2005.

About one week later, on July 8, 2005,
petitioner moved to represent himself.
However, the trial court denied the Faretta
motion, finding that the motion was equivocal
and that “timeliness is a substantial factor”
 TAMPLIN V. MUNIZ 19

because the trial date was only about six days
away. The court then went on to appoint
counsel for petitioner and later continued the
trial date to give petitioner’s new counsel time
to prepare. The case was not ultimately tried
until January of 2006, about six months later.

The next paragraph begins, “Under these circumstances,
the court finds that petitioner’s right to self-representation
was not violated.” That sentence is followed, in the same
paragraph, by fourteen lines of text in which the state habeas
court held that Tamplin waived his right to represent himself
by acquiescing in the trial court’s ruling. The next paragraph
contains eight lines of text in which the state habeas court
held that Tamplin was equivocal in his request to represent
himself. That paragraph is followed by a final paragraph of
a single line stating, “The petition is denied.”

The order thus gives two clearly articulated reasons for
holding that Tamplin’s Sixth Amendment right was not
violated. The order nowhere says that Tamplin made his self-
representation request too late, or gives that as a reason
supporting its holding. We accordingly review de novo the
timeliness of Tamplin’s request.

b. Timeliness of Tamplin’s Request

For the reasons that follow, we conclude that Tamplin’s
request to represent himself was timely. As just noted, we
decide this question de novo, but we would reach the same
decision even if we were to give deference under AEDPA.
We reach this decision on two grounds.
20 TAMPLIN V. MUNIZ

(1) Tamplin Continuously Represented Himself from
February 10 Forward

It is undisputed that Tamplin made an unequivocal
request to represent himself on February 10, 2005, and that
this request was granted. It is also undisputed that Morris
appeared in the trial court on June 22; that the minute order
for that day states that Morris requested a continuance in
order to file a motion to substitute in as counsel; that Morris
never made the motion for which he was granted a
continuance on June 22; and that on June 24 Morris was
suspended from practice. Because Morris never made the
motion for which he was granted a continuance, he never
legally represented Tamplin in the trial court. It necessarily
follows that Tamplin represented himself in the trial court
continuously from February 10 onward, and that he did not
make a new request on June 30 to represent himself when he
learned that Morris had been suspended from practice.

Our dissenting colleague contends that Morris was
actually substituted in as Tamplin’s counsel. We disagree.
Our dissenting colleague characterizes the minute order of
June 22 as “not a picture of clarity,” and writes that minute
orders “entered by the court on June 30 and July 8 reflect
Morris as the defense counsel of record and all parties,
including Tamplin, proceeded as though Tamplin were
represented by counsel (Morris).” Diss. at 28. This is not a
full description of the minute orders of June 30 and July 8.

Greg Morris’s name is preprinted at the top of both
minute orders, but the bodies of the minute orders tell a
different story. The body of the June 30 minute order has two
handwritten notations. Next to the heading “MOTIONS,” is
handwritten, “Deft requests to go Pro Per / Crt advises deft.
 TAMPLIN V. MUNIZ 21

that a waiver needs to be made.” Below that, next the
heading “OTHER,” is handwritten, “Mr. Morris is not
eligible to practice law.” The body of the July 8 minute order
has several handwritten notations. Under the heading
“ARRAIGNMENT-VDP,” two boxes labeled “(Re)appt.” and
“ADO/” are checked, and next to the boxes is handwritten the
name “K. Hall.” Under the same heading, a box labeled
“Relieved” is checked, and next to the box is handwritten the
name “G. Morris.” Below that, under the heading
“MOTIONS,” a box labeled “denied” is checked, and next to
the box is handwritten “Faretta mtn (time substantial factor).”
Finally, below that, under the heading “OTHER” is
handwritten “Greg Morris – unable to practice law at this
time.”

Far from showing that the parties treated Tamplin as
“represented by counsel (Morris),” the June 30 and July 8
minute orders show that the court understood that Tamplin
was not—indeed, could not be—represented by Morris. The
June 30 minute order could not have been clearer: “Mr.
Morris is not eligible to practice law.” During the July 8
hearing, the trial court said, “Mr. Tamplin is present and has
expressed a desire [to represent himself] given that Mr.
Morris is unable to represent him at this time . . . .” The only
suggestion in the body of either minute order that Morris ever
represented Tamplin in the trial court is the check in the July
8 minute order of the box labeled “Relieved.” In light of
what had come before, that check cannot be reasonably read
to indicate that Morris had ever successfully moved in the
trial court to represent Tamplin.
22 TAMPLIN V. MUNIZ

(2) Timely Request on June 30

Even if we assume, counterfactually, that Tamplin made
a new request to represent himself on June 30, as distinct
from a request to continue to represent himself, his request
was timely.

In the typical case of an untimely Faretta request, the
defendant is represented by counsel when the request is made.
In that circumstance, granting a Faretta motion would result
in a delay that would not occur if counsel were permitted to
continue to represent the defendant. A Faretta request must
therefore be made in a timely manner. But this is not that
typical case. On June 30, when Tamplin indicated that he
wished to continue to represent himself, he had already been
representing himself for over four and a half months. He had
appeared in the trial court with Morris on June 22 when
Morris was granted a continuance to make a motion to
substitute in as counsel (a motion that was never made), and
he learned on June 30 that Morris could not represent him.
As discussed above, Tamplin indicated unambiguously on
June 30 that he wished to continue to represent himself.

For purposes of argument, we are willing to assume that
Tamplin’s request on June 30 was a new request, but, as we
note, this was far from the typical Faretta request. We are
also willing to assume that July 14, the formally scheduled
date, was a realistic trial date, but, as we note, the court
continued the trial for six months after he denied Tamplin’s
request to represent himself. On these assumptions, Tamplin
made a new request to represent himself on June 30, exactly
two weeks before the scheduled trial date of July 14. Even on
these assumptions, Tamplin’s request was timely.
 TAMPLIN V. MUNIZ 23

In Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997),
overruled on other grounds in Williams v. Taylor, 529 U.S.
362 (2000), we held in a habeas case that a Faretta request
made two weeks and two days before trial was timely. On
the assumption that we should give AEDPA deference to the
state court decision, we wrote:

If the state court decision in this case was
“contrary to” the Federal law clearly
established by Faretta, then the writ may
properly be granted. Indeed, the relevant facts
is this case are identical to those in Faretta.
Like Faretta, Moore made his request “weeks
before trial.”

Id. at 265. Under Faretta, as we have interpreted it in Moore,
Tamplin’s request was timely.

Even if the state habeas court had relied on untimeliness
in denying habeas, we would not give AEDPA deference to
that conclusion. As recounted above, the state court believed
that Tamplin made his Faretta request on July 8. It wrote:
“About one week later, on July 8, 2005, petitioner moved to
represent himself.” This is a clear factual error. Tamplin
requested to represent himself on June 30, when he learned
that Morris had been suspended and could not represent him.
The hearing on Tamplin’s request was on July 8, but he had
made the request eight days earlier.

But even if the state habeas court had relied on
untimeliness and even if we were to give AEDPA deference,
we would interpret Faretta as we did in Moore. That is, we
would conclude that the state habeas court reached a result
clearly contrary to Faretta. See Marshall v. Rodgers, 569
24 TAMPLIN V. MUNIZ

U.S. 58, 64 (2013) (“[A]n appellate panel may, in accordance
with its usual law-of-the-circuit procedures, look to circuit
precedent to ascertain whether it has already held that the
particular point in issue is clearly established by Supreme
Court precedent . . . .”). Stenson v. Lambert, 504 F.3d 873,
884 (9th Cir. 2007), on which the dissent relies, contains only
generalized observations about Faretta and does not engage
with Moore. In Marshall v. Taylor, 395 F.3d 1058, 1061 (9th
Cir. 2005), we discussed Moore approvingly, in holding that
a request made on the morning of trial was untimely. In the
course of our discussion, we wrote, “[A]fter Moore, we know
that Faretta clearly established some timing element, but we
still do not know the precise contours of that element. At
most, we know that Faretta requests made ‘weeks before
trial’ are timely.” Id. Though Burton v. Davis, 816 F.3d
1132, 1141 (9th Cir. 2016), was a pre-AEDPA case, we
analyzed Burton’s claim by asking, first, if the state court
violated clearly established Supreme Court precedent, and
second, if the state court violated Burton’s Faretta rights
under circuit precedent. We answered the first question by
applying Moore. Burton, 816 F.3d at 1141 (“[W]e
determined in Moore that, after Faretta, the Supreme Court
had clearly established that a request to proceed pro se is
timely if made ‘weeks before trial.’ Moore, 108 F.3d at 265.”
(emphasis added)).

C. Ineffective Assistance of Counsel

The state habeas court denied Tamplin’s ineffective
assistance of appellate counsel claim solely on the ground
that the underlying Faretta claim was meritless. It did not
address whether appellate counsel would have been
ineffective in failing to raise the claim if the claim were
meritorious. We therefore perform the remainder of the
 TAMPLIN V. MUNIZ 25

ineffective assistance of appellate counsel analysis de novo.
See Visciotti, 862 F.3d at 760.

The Fourteenth Amendment’s Due Process Clause
guarantees a criminal defendant effective assistance of
counsel, as defined in Strickland v. Washington, 466 U.S. 668
(1984), during his or her first appeal as of right. Smith v.
Robbins, 528 U.S. 259, 285 (2000); Evitts v. Lucey, 469 U.S.
387, 396 (1985). To prevail, the defendant must show, first,
“that counsel’s performance was objectively unreasonable,
which in the appellate context requires the petitioner to
demonstrate that counsel acted unreasonably in failing to
discover and brief a merit-worthy issue,” and second, that he
was prejudiced on account of the deficient performance,
“which in this context means that the petitioner must
demonstrate a reasonable probability that, but for appellate
counsel’s failure to raise the issue, the petitioner would have
prevailed in his appeal.” Moormann v. Ryan, 628 F.3d 1102,
1106 (9th Cir. 2010).

Tamplin’s counsel filed a declaration in the state habeas
proceeding. He explained his decision not to raise the
Faretta claim as follows:

I had no tactical reason not to raise this
claim in the initial appeal. In retrospect, it is
clear that appellant made two Faretta
motions, one in February 2005 and the second
in July 2005. . . . I, however, labored under
the mistaken belief that appellant had made
only one Faretta motion, the one in February,
which was granted. The transcript of the July
2005 motion was not in the record on appeal
and I did not get a copy of it (from appellant’s
26 TAMPLIN V. MUNIZ

wife) until yesterday, May 24, 2007. Once I
saw it I realized my mistake and took
immediate steps to bring this matter before the
court. The denial of the Faretta motion is a
potentially meritorious constitutional claim
that should have been raised in the initial
appeal. That it was not raised is due entirely
to my neglect . . . .

As the declaration shows, Tamplin’s appellate counsel had no
tactical reason to refrain from raising the Faretta claim. He
simply made a mistake. The record should have alerted
counsel to the need to investigate further—especially since
denial of a defendant’s rights under Faretta is “one of those
rare constitutional errors that requires automatic reversal
because it amounts to a structural defect.” United States v.
Withers, 638 F.3d 1055, 1065 (9th Cir. 2011); see also
Frantz, 533 F.3d at 734.

Tamplin had a compelling claim to relief under Faretta.
See supra, Sections III.A–B. To say the least, counsel’s
failure to raise that claim undermines confidence in the
outcome of Tamplin’s appeal. Strickland, 466 U.S. at 694.
Tamplin was therefore prejudiced by his counsel’s deficient
performance. See Delgado v. Lewis, 223 F.3d 976, 981 (9th
Cir. 2000) (finding that appellate counsel’s failure to raise
meritorious claims on appeal prejudiced Delgado where
“there were deficiencies in the trial court proceedings
significant enough to warrant reversal”).

Because appellate counsel’s performance was
constitutionally deficient and Tamplin was prejudiced by his
counsel’s errors, Tamplin was denied his Fourteenth
 TAMPLIN V. MUNIZ 27

Amendment right to effective assistance of appellate counsel.
Smith, 528 U.S. at 285.

Conclusion

For the foregoing reasons, we reverse the judgment of the
district court and remand with instructions to grant the writ of
habeas corpus.

REVERSED and REMANDED.

HAWKINS, Circuit Judge, dissenting:

If this habeas petition were not governed by the AEDPA
regime and Supreme Court authority as to when the relief
requested here could or could not be granted, I might well
agree with my colleagues. However, 28 U.S.C. § 2254(d)
bars relief on a claim adjudicated on the merits in state court
unless that court’s decision was contrary to federal law then
clearly established in Supreme Court holdings or involved an
unreasonable application of such law, or was based on an
unreasonable determination of the facts in light of the record
before the state court. Harrington v. Richter, 562 U.S. 86,
98–100 (2011).

This court must first determine what constitutes “clearly
established Federal law, as determined by the Supreme Court
of the United States.” Lockyer v. Andrade, 538 U.S. 63, 71
(2003). In analyzing claims, we are limited to the holdings,
as opposed to the dicta, of Supreme Court cases that existed
at the time the state court issued its ruling. Id.; Howes v.
Fields, 565 U.S. 499, 505 (2012). However, we may not
28 TAMPLIN V. MUNIZ

issue the writ simply because we conclude that the relevant
state court decision applied the law erroneously or
incorrectly. Lockyer, 538 U.S. at 75–76. A state court
decision precludes federal habeas relief so long as
“fairminded jurists could disagree” as to the correctness of
the state court’s decision. Harrington, 562 U.S. at 101.

The majority first concludes the state court made an
unreasonable factual finding that Morris was substituted as
counsel for Tamplin. Although the original minute order is
not a picture of clarity, as it both checks a box indicating that
Morris was subbed in and also appears to state he was granted
a continuance on “motion to file a sub into case,” the next
two orders entered by the court on June 30 and July 8 reflect
Morris as the defense counsel of record and all parties,
including Tamplin, proceeded as though Tamplin were
represented by counsel (Morris) and that if Tamplin wished
to change his mind, a new Faretta request would be
necessary. So, too, do I.

The majority further concludes the California state courts
unreasonably applied Faretta and thus violated his due
process right to represent himself by denying the renewed
request. 422 U.S. at 819; see Adams v. Carroll, 875 F.2d
1441, 1444 (9th Cir. 1989) (“The Sixth Amendment’s
guarantee of assistance of counsel is unusual among
constitutional rights in that it is also implicitly a guarantee of
its opposite, the right to refuse counsel.”). I am not
convinced the issue is so clearcut, nor that the state court
decision was objectively unreasonable under the
circumstances.

Here, the state trial court gave two reasons for declining
to grant Tamplin’s second request to represent himself:
 TAMPLIN V. MUNIZ 29

(1) the timing of the request, given its proximity to the
scheduled trial date, and (2) that Tamplin had not been
unequivocal, having appeared only a week or so earlier with
a privately-hired attorney whom he indicated he had hired for
assistance with matters he could not handle personally,
especially dealing with rules of the court. On consideration
of the state habeas petition, and contrary to the majority’s
interpretation of the record, the state habeas court fully
agreed with the trial court’s assessment and reasoning,
including the need to assert the right within a reasonable time
before the commencement of trial, but also specifically
elaborated that Tamplin’s attempted hiring of attorney Morris
shortly before the request indicated he was not unequivocal
in the desire to represent himself, but appeared to be
searching for a compatible attorney.1

Under AEDPA, we may look only to Supreme Court
decisions to determine what constitutes “clearly established
federal law.” Murray v. Schriro, 745 F.3d 984, 997 (9th Cir.
2014) (“Our precedent cannot be mistaken for clearly
established Supreme Court law.”). Faretta itself offers no
guidance on the equivocal issue, nor does any Supreme Court
precedent since it was decided. And this court has also

1
The state habeas court cites both federal and state law regarding the
timeliness of the motion, described both of the trial court’s reasons for
denying the request, including that “timeliness is a substantial factor” and
then concluded that “under these circumstances,” the right to self-
representation had not been violated. I view this as fully incorporating the
trial court’s reasoning and then elaborating further on its own. The habeas
court also offered a third reason for denying Tamplin’s petition, in that he
did not subsequently renew his request to represent himself. I do not
address the validity of this additional “acquiescence” reasoning because,
as discussed below, I believe the first two reasons sufficient to uphold the
ruling.
30 TAMPLIN V. MUNIZ

explained that although Faretta “clearly established some
timing element,” the “precise contours of that element” are
unknown and “[a]t most, we know that Faretta requests made
‘weeks before trials’ are timely.” Marshall v. Taylor, 395
F.3d 1058, 1061 (9th Cir. 2005).2

In light of the record as a whole, I cannot say that the
California state court’s decision was an unreasonable
application of Faretta. The timing of the renewed request
was very close to trial and Tamplin admitted he could not be
ready in time for the scheduled trial date. As this court has
noted, “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). Moreover, Tamplin’s attempt to hire counsel shortly
before trial, and for the acknowledged purpose of helping him
with matters he did not feel he could personally handle, such
as complying with rules of court, definitely calls into question
the unequivocal nature of his request. See id. at 882–83
(Washington Supreme Court determination that petitioner’s
request was equivocal in light of the record as a whole was
not objectively unreasonable). Although Tamplin was

2
I acknowledge that in an older case, Moore v. Calderon, 108 F.3d
261, 264 (9th Cir. 1997), this court, applying pre-AEDPA standards, held
that a state court denial of a defendant’s motion to represent himself made
two weeks and two days before scheduled trial was timely and granted the
writ. In dicta, the court further suggested the result would be the same if
the then-new AEDPA standards applied to the case, id. at 263–64,
although Ninth Circuit law at the time clearly held they did not, Jeffries
v. Wood, 103 F.3d 827 (9th Cir. 1996) (en banc), a holding subsequently
confirmed by the Supreme Court in Lindh v. Murphy, 521 U.S. 320
(1997). I would not follow Moore’s dicta, and instead focus on
subsequent cases actually governed by the AEDPA standard which have
stated that Faretta “clearly established” no more than that requests made
“weeks before trial” are timely. See Stetson, 504 F.3d at 884.
 TAMPLIN V. MUNIZ 31

perhaps “unequivocal” after the point in time that he made his
renewed request to represent himself, Faretta certainly does
not preclude the trial court’s consideration of the entire
record, nor offer any guidance whatsoever on what might
constitute equivocation by a defendant, since the defendant in
Faretta never wavered in his desire to represent himself in the
way Tamplin did here.3

In sum, I cannot find a holding of the Supreme Court that
clearly requires relief under the circumstances present here,
and its most recent pronouncements suggest otherwise. See
Kernan v. Cuero, 138 S. Ct. 4, 8 (2017). In Kernan, the
Supreme Court recently made clear that AEDPA does not
permit: (1) granting relief where fairminded jurists could
disagree with the reading of Supreme Court precedent, or
(2) ordering relief when there was no Supreme Court decision
clearly entitling the defendant to the relief he seeks, or
(3) relying on circuit precedent, state court decisions,
treatises, law review articles, or anything beyond established
Supreme Court precedent for AEDPA purposes. Id. at 9.
Cognizant of these parameters, I find it is at least debatable
under Faretta whether Tamplin’s renewed request was
sufficiently timely and whether he was truly unequivocal in
desiring to represent himself. Thus, in my opinion, Tamplin
has not established that the state court’s decision was “in
direct and irreconcilable conflict with Supreme Court

3
The majority points out that a footnote in Faretta indicates he
attempted on three occasions to have the trial court appoint and pay for
private counsel for him. 422 U.S. at 808 n.5. The significance of this fact
is not discussed in the opinion. However, trying to get the court to pay for
counsel of choice is still a step removed from what Tamplin did
here–actually hiring such counsel and appearing in court with him shortly
before trial, representing to the trial judge that he now desired such
representation rather than continuing on pro se.
32 TAMPLIN V. MUNIZ

precedent,” Murray, 745 F.3d at 997, nor has he shown that
the state court ruling applying Faretta “was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington, 562 U.S. at 103. I
would affirm the district court’s denial of the petition.