Rodgers v. Marshall

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

OTIS LEE RODGERS,  No. 10-55816
Petitioner-Appellant, D.C. No.
v.  5:08-cv-01003-
JOHN MARSHALL, WARDEN, VAP-MLG
Respondent-Appellee.
 OPINION

On Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding

Argued and Submitted
January 12, 2012—Pasadena, California

Filed May 17, 2012

Before: Stephen Reinhardt and William A. Fletcher,
Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Zouhary

*The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.

5217
5220 RODGERS v. MARSHALL
COUNSEL

John Ward (argued), San Francisco, California, for petitioner-
appellant Otis Lee Rodgers.

Kevin Vienna (argued), Kamala D. Harris, Gary W. Schons,
David Delgado-Rucci, San Diego, California, for respondent-
appellee John Marshall.

OPINION

ZOUHARY, District Judge:

INTRODUCTION

In June 2003, a jury found Petitioner-Appellant Otis Lee
Rodgers (“Rodgers”) guilty of assault with a firearm, posses-
sion of a firearm and ammunition by a felon, and making
criminal threats, as well as two sentencing enhancement alle-
gations. Rodgers was sentenced and is currently serving a
sixteen-year prison term.

After exhausting state court remedies, Rodgers filed a peti-
tion for a writ of habeas corpus in federal court, raising
twenty-one claims for relief. The district court denied the peti-
tion, but granted Rodgers a limited certificate of appealability
regarding his claim that the state trial court violated his Sixth
Amendment right to counsel by denying his timely request for
representation to file a new trial motion. In addition to the cer-
tified issue, Rodgers argues there was insufficient evidence to
support the charge of criminal threats, and the state court
unreasonably affirmed an upper term sentence in the absence
of proof to a jury beyond a reasonable doubt. We decline to
address those uncertified issues.

This case requires us to consider whether a criminal defen-
dant’s request for legal counsel to file a post-verdict motion
 RODGERS v. MARSHALL 5221
for a new trial is a “critical stage,” and whether denying such
a request, because the defendant previously waived his right
to trial counsel, is a violation of clearly established federal
law. For the reasons set forth below, the judgment of the dis-
trict court is REVERSED, and this case is REMANDED for
further proceedings.

BACKGROUND

Procedural Background

In June 2003, a jury found Rodgers guilty of several state
charges. The jury also found two sentencing enhancements,
and Rodgers was sentenced to sixteen years in prison. Rod-
gers appealed the judgment to the California appellate court
which affirmed his convictions and sentence in August 2005.

Rodgers filed a petition for review with the California
Supreme Court, but his petition was dismissed in July 2007.
While Rodgers’ petition for review was pending, he filed
habeas petitions with the California appellate court and the
California Supreme Court challenging the search of his vehi-
cle. Although Rodgers was represented by appellate counsel,
he also filed numerous pro per motions, post-conviction
pleadings, and writ applications in the California appellate
court and the California Supreme Court, including several
motions for substitution of appellate counsel. The appellate
courts rejected all those petitions and claims.

In July 2008, Rodgers filed a petition for writ of habeas
corpus in federal court raising twenty-one claims for relief,
including denial of right to counsel at the post-trial stages for
new trial motions and sentencing. The California Attorney
General answered the Petition in April 2009, arguing the state
court rejected Rodgers’ claim on the merits, and the court’s
decision was neither contrary to, nor an unreasonable applica-
tion of, controlling United States Supreme Court precedent.
5222 RODGERS v. MARSHALL
The petition was referred to the magistrate judge in March
2010, who recommended dismissal. Rodgers filed objections
and, in May 2010, the district judge approved the magistrate’s
recommendation and also granted a certificate of appealability
as to only one claim — whether the trial court violated Rod-
gers’ Sixth Amendment by denying his request for the
appointment of counsel to file a new trial motion. For all other
claims, the district court found Rodgers could not “make a
colorable claim that jurists of reason would find debatable or
wrong.” Rodgers filed this timely appeal.

Factual Background

Early in the morning on July 15, 2001, a woman was awak-
ened by screaming and yelling from the parking lot of a
nearby apartment complex. The woman looked through her
window and saw an African American man and a woman near
a red car in the parking lot. Events later established the man
was Otis Lee Rodgers and the woman, his wife Joyce Rod-
gers. Rodgers, who was calling Joyce a prostitute and threat-
ening to kill her, hit her in the head with his fist and told her
to “[g]ive me the fucking gun.” Joyce retrieved a gun from the
car and gave it to Rodgers, who then placed the gun to her
head and said he was going to kill her. Joyce was crying.
These events were also witnessed by the woman’s eleven-year
old daughter.

The woman made an anonymous 911 call and, while talk-
ing to the dispatcher, saw a patrol car pass by the parking lot.
She informed the dispatcher that the patrol car needed to turn
around. The Riverside County deputy sheriff who was driving
the patrol car had previously received a radio dispatch that a
man and woman were in a red sedan in the apartment com-
plex parking lot, and that the man threatened to shoot the
woman. Rodgers was leaving the parking lot in the red sedan
as the deputy approached. Joyce was in the passenger seat —
upset and crying. Rodgers told the deputy that he and Joyce
had been arguing over financial problems. After discovering
 RODGERS v. MARSHALL 5223
Rodgers did not have a driver’s license, the deputy placed him
in the back of the patrol car. Joyce told the deputy that Rod-
gers had not threatened or assaulted her.

A second deputy sheriff who arrived at the scene as backup
observed several fresh gouge wounds on Joyce’s shoulders.
Joyce told the deputy she and Rodgers had been arguing and
that she scraped her shoulders on a nail that was sticking out
of a wall. With Joyce’s consent, the first deputy searched
Rodgers’ car. The deputy found a .357 magnum revolver and
ammunition inside the trunk. Rodgers was arrested and
charged with several violations of the California Penal Code.

During the pretrial phase of his case, which lasted nearly
two years, Rodgers alternated requests for counsel and self-
representation. Between July and December 2001, Rodgers
represented himself for arraignment and at hearings on
motions prepared pro per. Rodgers retained counsel for a Jan-
uary 2002 preliminary hearing; however, in March 2002, the
trial court granted his motion for self-representation. In May
2002, upon Rodgers’ request, the trial court appointed a pub-
lic defender. Four months later, Rodgers again decided to go
it alone, but the trial court denied his motion to proceed pro
per. In November 2002, the trial court relieved the public
defender due to a conflict of interest and appointed a defense
panel attorney to continue Rodgers’ representation. Rodgers
sought and received permission to represent himself in Febru-
ary 2003, and continued to represent himself throughout trial.

At trial, Rodgers called several witnesses and testified on
his own behalf. Rodgers testified that on the night of the inci-
dent, he and Joyce went to a club and then drove to a parking
lot near a friend’s home. Other cars, including a red car, were
also in the parking lot, along with other African American
males and females. Rodgers and Joyce waited in their car for
their friend to return from the club. About thirty to forty-five
minutes later, Rodgers noticed police cars “zooming around.”
As Rodgers was leaving the parking lot, a deputy pulled up.
5224 RODGERS v. MARSHALL
After asking Rodgers some questions about his driver’s
license, the deputy placed Rodgers in the back of the patrol
car. According to Rodgers, the deputy then took a plastic bag
containing a dark object out of the patrol car, went to Rod-
gers’ car, opened the trunk, and returned with the bag that had
previously been in the patrol car.

In June 2003, a jury found Rodgers guilty of assault with
a firearm, possession of a firearm and ammunition by a felon,
and making criminal threats. The jury also found Rodgers per-
sonally used a firearm while committing the assault and mak-
ing the criminal threats and that Rodgers was on bail pending
trial for another felony offense when he committed these
crimes. In addition, Rodgers admitted he had two prior felony
convictions, had been sentenced to prison on each of them,
and that within five years of release from custody he commit-
ted another felony.

Immediately following the reading of the verdict, Rodgers
informed the trial court he wished to file a motion for new
trial. Rodgers also requested the reappointment of the defense
panel attorney to prepare the new trial motion. The trial court
denied Rodgers’ request, stating “[w]e aren’t doing anything
like that right now, Mr. Rodgers.” One month later, Rodgers
filed a written motion again requesting the appointment of
counsel “to perfect and file” a motion for new trial. The trial
court denied his motion, reminding Rodgers that he “made
th[e] election to represent [him]self” and insisted on self-
representation even after being counseled against it.

Rodgers insisted he wanted to file a motion for new trial
and if need be he himself would prepare the motion, but he
needed a copy of the trial transcript and two months to “per-
fect the motion.” Rodgers asserted he had ten to fifteen
grounds for his new trial motion, including claims based on
newly discovered evidence and prosecutorial misconduct dur-
ing closing argument. The trial court denied his request for
the transcript.
 RODGERS v. MARSHALL 5225
Subsequently, Rodgers filed his new trial motion, along
with a motion to continue sentencing. At the sentencing, the
court asked Rodgers if there was any reason why sentencing
should not proceed. Rodgers responded he needed additional
time to review his probation report and prepare a sentencing
brief; however, the trial court denied his request for a continu-
ance and proceeded with sentencing.

When the trial court and the prosecutor began to discuss the
possible length of his sentence, Rodgers informed the court he
was unfamiliar with the applicable sections of the California
Penal Code in his case and asked that they be explained to
him. The trial court responded, “Mr. Rodgers, if you had a
lawyer, he could explain it to you.” Rodgers did not request
appointment of counsel for sentencing, but did ask that he be
allowed to bring his family members to court to speak on his
behalf. The court obliged and continued the matter for two
days.

When the hearing reconvened, Rodgers again expressed
frustration and confusion with the statutory sentencing provi-
sions:

RODGERS: Again, Your Honor, you are disre-
specting me and talking to him not me.

COURT: That’s because you don’t know what I
am talking about, Mr. Rodgers.

RODGERS: That’s what I understand. That’s no
excuse.

COURT: I told you at the time that you did this
that you would be held to the same
standards as a lawyer. You are being
held to the same standards as a lawyer.
That’s an election you made.
5226 RODGERS v. MARSHALL
RODGERS: I don’t know why this is such a dis-
crimination against pro per.

COURT: Not discriminating you [sic], sir. You
are held to the same standards as a
lawyer.

Rodgers now claims that by refusing to appoint counsel for
the motion for new trial, the trial court violated his Sixth
Amendment right to counsel at a critical stage in the proceed-
ings.1

JURISDICTION

This is an appeal of right from a judgment of the district
court, which had jurisdiction under 28 U.S.C. § 2254. The
district court entered judgment on May 4, 2010, which was
timely appealed on May 17, 2010. This Court has appellate
jurisdiction pursuant to 28 U.S.C. § 2253(a).

STANDARD OF REVIEW

Section 2254 provides federal habeas corpus relief to state
1
The certified issue does not include Rodgers’ argument that he was
denied counsel during sentencing. Instead of including the issue in his
brief as an uncertified issue under Ninth Circuit Rule 22(e), Rodgers
improperly included it as part of the certified issue. Even if we addressed
Rodgers’ argument, he would not be entitled to relief. Although it is
clearly established law that sentencing is a “critical stage” of a criminal
proceeding, see Mempa v. Rhay, 389 U.S. 128, 134 (1967), the California
appellate court held Rodgers “never requested the appointment of counsel
for his sentencing hearing,” and “the only request he made for counsel was
his July 16, 2003, motion for counsel which was expressly ‘to perfect and
file defendant’s Motion for a New Trial.’ ” This finding, supported by the
record, constitutes “a determination of a factual issue made by a State
court,” and as such, is “presumed to be correct.” See 28 U.S.C. § 2254(e).
Because Rodgers has not met the difficult “burden of rebutting the pre-
sumption of correctness by clear and convincing evidence,” this Court
must defer to the state court’s factual determination. Id.
 RODGERS v. MARSHALL 5227
prisoners who are in custody “in violation of the Constitution
or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
A district court’s decision to deny a habeas petition under
Section 2254 is reviewed de novo. Alvarado v. Hill, 252 F.3d
1066, 1068 (9th Cir. 2001); Solis v. Garcia, 219 F.3d 922,
926 (9th Cir. 2000). Its findings of fact are reviewed for clear
error. Solis, 219 F.3d at 926. A state court’s findings of fact
are entitled to a presumption of correctness unless the peti-
tioner rebuts the presumption with clear and convincing evi-
dence. See 28 U.S.C. § 2254(e)(1); Solis, 219 F.3d at 926.
Because Rodgers’ petition was filed after the Anti-Terrorism
and Effective Death Penalty Act’s (“AEDPA”) effective date
of April 24, 1996, its provisions apply. See Woodford v. Gar-
ceau, 538 U.S. 202, 205-06 (2003).

In short, AEDPA imposes a “highly deferential standard for
evaluating state-court rulings,” Lindh v. Murphy, 521 U.S.
320, 333 n.7 (1997), and “demands that state court decisions
be given the benefit of the doubt.” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam). Under AEDPA, this Court
cannot grant habeas relief unless the state court decision was:
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or was (2) “based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).

The Supreme Court has made clear the “contrary to” and
“unreasonable application” clauses have distinct meanings.
Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court
decision is contrary to clearly established federal law where
the court fails to apply the correct controlling authority; or if
it applies controlling authority to a case involving facts mate-
rially indistinguishable from those in a controlling case, but
nonetheless reaches a different result. Id. at 413-14; Brown v.
Payton, 544 U.S. 133, 141 (2005). A state court decision
involves an unreasonable application of clearly established
5228 RODGERS v. MARSHALL
federal law if the state court identifies the correct governing
legal principle from Supreme Court precedent, but unreason-
ably applies that principle to the facts of the case, or unrea-
sonably extends a legal principle to a new context where it
should not apply, or fails to extend the principle to a context
in which it should apply. Williams, 529 U.S. at 407; Brown,
544 U.S. at 141. The state’s application of federal law “must
be shown to be not only erroneous, but objectively unreason-
able.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009)
(quotation omitted).

Furthermore, AEDPA’s “clearly established law” require-
ment limits the area of law on which habeas courts may rely
— the only definitive source of federal law is Supreme Court
precedent. See Williams, 529 U.S. at 412; Mendez v. Knowles,
556 F.3d 757, 767 (9th Cir. 2008). Circuit precedent may pro-
vide “persuasive authority” for purposes of determining
whether a state court decision is an “unreasonable applica-
tion” of Supreme Court precedent. Id. at 767. However, only
Supreme Court holdings are binding on state courts, and “only
those holdings need be reasonably applied.” Clark v. Murphy,
331 F.3d 1062, 1069 (9th Cir. 2003); see also Williams, 529
U.S. at 412.

When applying these standards, this Court must review the
“last reasoned state court decision.” Delgadillo v. Woodford,
527 F.3d 919, 925 (9th Cir. 2008); Avila v. Galaza, 297 F.3d
911, 918 (9th Cir. 2002). Here, the California Supreme Court
denied Rodgers’ Sixth Amendment claim without issuing a
reasoned decision. Therefore, the August 2005 decision of the
California appellate court, denying Rodgers’ Sixth Amend-
ment claim on direct review, is the last reasoned decision of
a California court, and the decision we must review.

ANALYSIS

With these principles in mind, we now turn to Rodgers’
challenge to the state court’s ruling on his Sixth Amendment
 RODGERS v. MARSHALL 5229
claim, which requires this Court to answer three specific ques-
tions. First, whether the pre-appeal time period for filing a
motion for new trial is a “critical stage” under “clearly estab-
lished federal law;” if so, then whether denying a request for
counsel at that stage, because a defendant previously waived
his right to trial counsel, is a violation of “clearly established
federal law;” and, if so, whether the California appellate court
decision was “contrary to, or involved an unreasonable appli-
cation of” clearly established law.

A Post-Verdict New Trial Motion is a “Critical Stage”

[1] The Supreme Court’s Sixth Amendment jurisprudence
has long recognized that a defendant’s right to counsel is a
fundamental component of our criminal justice system. See
Iowa v. Tovar, 541 U.S. 77, 80-81 (2004); United States v.
Cronic, 466 U.S. 648, 653-54 (1984). Indeed, “[w]ithout the
aid of counsel, a defendant may be unable to prepare an ade-
quate defense and though ‘he be not guilty, he faces the dan-
ger of conviction because he does not know how to establish
his innocence.’ ” Robinson v. Ignacio, 360 F.3d 1044, 1056
(9th Cir. 2003) (quoting Powell v. Alabama, 287 U.S. 45, 69
(1932)). For that reason, the right to counsel, which originated
as a trial right, has been extended by the Supreme Court to
various “critical stages,” which the Court defines as any
“stage of a criminal proceeding where substantial rights of a
criminal accused may be affected.” Mempa, 389 U.S. at 134.

[2] Although the Supreme Court has provided specific
examples of “critical stages” under the Sixth Amendment, it
has never squarely addressed whether a post-verdict motion
for new trial is one of those stages. E.g., Estelle v. Smith, 451
U.S. 454, 474 (1981) (psychiatric interviews); Mempa, 389
U.S. at 134 (sentencing); United States v. Wade, 388 U.S.
218, 224-25 (1967) (pretrial line up); White v. Maryland, 373
U.S. 59, 60 (1963) (preliminary hearings); Douglas v. Califor-
nia, 372 U.S. 353, 355-56 (1963) (appeals). However, the
Supreme Court’s “silence on this particular issue need not
5230 RODGERS v. MARSHALL
prevent us from identifying and applying the [Court’s] general
governing principles to the case at hand.” Ignacio, 360 F.3d
at 1056-57. As explained in Ignacio, “rules of law may be
sufficiently clear for habeas purposes even when they are
expressed in terms of a generalized standard rather than as a
bright-line rule.” Id. at 1057 (quoting Williams, 529 U.S. at
382 (opinion of Stevens, J.)2). Some of our sister circuits have
likewise recognized that AEDPA encompasses more than
“bright-line rules” laid down by the Supreme Court. See, e.g.,
Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (“The
[Supreme] Court has made clear that its relevant precedents
include not only bright-line rules but also the legal principles
and standards flowing from precedent.”); Hart v. Attorney
General of Florida, 323 F.3d 884, 893 n.16 (11th Cir. 2003).

This Circuit recognizes that, because of AEDPA, we “can
no longer reverse a state court decision merely because that
decision conflicts with Ninth Circuit precedent on a federal
Constitutional issue.” Duhaime v. Ducharme, 200 F.3d 597,
600 (9th Cir. 2000). For that reason, Rodgers misplaces his
reliance on this Court’s opinion in Menefield v. Borg, which
held that a post-verdict motion for a new trial is a “critical
stage” of prosecution under the Sixth Amendment. 881 F.2d
696 (9th Cir. 1989). However, as discussed above, Ninth Cir-
cuit precedent “may be persuasive authority for purposes of
2
The language quoted in Ignacio is taken from Part II of Justice Ste-
vens’ opinion in Williams, which was joined only by four justices. A
majority of the Court instead joined Part II of Justice O’Connor’s opinion,
which disagreed with Justice Stevens’ “erroneous interpretation” of
AEDPA due to his failure to “give independent meaning to both the ‘con-
trary to’ and ‘unreasonable application’ clauses of the statue.” Williams,
529 U.S. at 404. However, we do not interpret Justice O’Connor’s opinion
as inconsistent with that of Justice Stevens regarding AEDPA’s “clearly
established Federal law” requirement. Justice O’Connor specifically
agreed with Justice Stevens that “whatever would qualify as an old rule
under our Teague jurisprudence will constitute ‘clearly established Federal
law’ ” under § 2254(d)(1), with the significant “caveat” that, unlike
Teague, Ҥ 2254(d)(1) restricts the source of clearly established law to [the
Supreme] Court’s jurisprudence.” Id. at 412.
 RODGERS v. MARSHALL 5231
determining whether a particular state court decision is an
‘unreasonable application’ of Supreme Court law, and also
may help us determine what law is ‘clearly established.’ ”
Duhaime, 200 F.3d at 600. Therefore, when faced with novel
situations, “we may turn to our own precedent, as well as the
decisions of other federal courts, in order to determine
whether the state decision violates the general principles
enunciated by the Supreme Court and is thus contrary to
clearly established federal law.” Ignacio, 360 F.3d at 1057.

[3] The Supreme Court’s Sixth Amendment doctrine con-
cerning a defendant’s right to counsel is not a bright-line rule.
In United States v. Ash, the Court recognized that the right to
counsel encompassed a “test” which requires an “examination
of the event [at issue] in order to determine whether the
accused required aid in coping with legal problems or assis-
tance in meeting his adversary.” 413 U.S. 300, 313 (1973)
(relying on the “history and expansion of the Sixth Amend-
ment counsel guarantee”). Similarly, in Mempa, the Court
held a “critical stage” involves aspects of the criminal prose-
cution “where substantial rights of a criminal accused may be
affected.” 389 U.S. at 134.

There is no doubt a post-verdict motion for new trial is one
of those aspects of the prosecution. As this Court held in
Menefield, “the motion for a new trial is the defendant’s last
opportunity for an unconstrained review on the merits of the
evidence against him.” 881 F.2d at 699. This is so because on
appeal, “both jury conclusions and the factual decisions of the
trial court are either immune from review or treated under a
highly deferential standard.” Id. Not only can counsel ensure
that a defendant’s substantive rights are protected, but counsel
can also utilize his “understanding of legal rules and his expe-
rience in presenting claims before a court,” which is ordinar-
ily required for an effective new trial motion. Id. To be sure,
“[t]he presence of trained counsel at this stage insures that the
most favorable arguments will be presented and ‘that the
accused’s interests will be protected consistently with our the-
5232 RODGERS v. MARSHALL
ory of criminal prosecution.’ ” Id. (quoting United States v.
Wade, 388 U.S. 218, 227 (1967)).

[4] For those reasons, we were compelled to hold that a
post-verdict new trial motion is a “critical stage” under the
Sixth Amendment. See Menefield, 881 F.2d at 699. In so
holding, we identified and relied solely on Supreme Court
precedent. Id. at 698-99 (citing Mempa, 389 U.S. at 134 and
Ash, 413 U.S. at 315). This fact was recognized in Bell v. Hill,
where we reaffirmed Menefield relied “exclusively on
Supreme Court precedent addressing the Sixth Amendment
right to counsel” in finding that “the right to counsel attaches
to the motion for a new trial stage.” 190 F.3d 1089, 1092 (9th
Cir. 1999).3

The parties to this case argued that a split exists among the
appellate circuits as to whether a post-verdict motion for new
trial is a “critical stage” under the Sixth Amendment. They
are wrong. Upon careful review, every federal circuit that has
addressed whether a post-trial, pre-appeal motion for a new
trial constitutes a “critical stage” has concluded that it does.
See, e.g., McAfee v. Thaler, 630 F.3d 383, 393 (5th Cir.
2011); Kitchen v. United States, 227 F.3d 1014, 1019 (7th Cir.
2000); Williams v. Turpin, 87 F.3d 1204, 1210 & n.5 (11th
Cir. 1996); Robinson v. Norris, 60 F.3d 457, 460 (8th Cir.
1995); Menefield, 881 F.2d at 699; see also Nelson v. Peyton,
3
Bell, a case decided under Teague v. Lane, 489 U.S. 288 (1989), is
consistent with the holding in Williams that whatever qualifies as an old
rule under Teague constitutes “clearly established federal law” under Sec-
tion 2254(d)(1). See Williams, 529 U.S. at 412 But we recognize that Bell
also presents another question, namely, whether Menefield satisfies the
Court’s caveat that “the source of clearly established law” is Supreme
Court jurisprudence. Id. (emphasis added). Though we are persuaded that
Supreme Court jurisprudence was indeed the “source” of Menefield’s rule
that the right to counsel attaches to the motion for a new trial, we sidestep
that question by holding, as discussed infra, that the Supreme Court’s
Sixth Amendment “critical stage” jurisprudence establishes a legal princi-
ple that “clearly extends” to the pre-appeal motion for new trial. See Mur-
doch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010).
 RODGERS v. MARSHALL 5233
415 F.2d 1154, 1157 (4th Cir. 1969); Baker v. Kaiser, 929
F.2d 1495, 1499 (10th Cir. 1991) (quoting Nelson, 415 F.2d
at 1157).

The majority of these courts focus on the timing of the
motion for new trial. For instance, the Fifth, Seventh and
Eighth Circuits, all distinguish between post-trial motions
filed prior to an appeal, which the courts consider “not collat-
eral,” and those filed after an appeal, which are deemed “col-
lateral.” See, e.g., McAfee, 630 F.3d at 393; Kitchen, 227 F.3d
at1019; Robinson, 60 F.3d at 459-60. In addition to timing,
some of these courts focus on the nature of the motion, and
rely on the general policies ensuring effective representation
in our adversary system. See, e.g., Williams, 87 F.3d at 1210.

The parties point to three circuits that appear to have
reached a contrary result; however, those circuits did not
address the specific issue here. See United States v. Tajeddini,
945 F.2d 458, 470 (1st Cir. 1991), abrogated on other
grounds, Roe v. Flores-Ortega, 528 U.S. 470 (2000); United
States v. Lee, 513 F.2d 423, 424 (D.C. Cir. 1975); United
States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). That is,
those circuits did not consider whether the post-trial, pre-
appeal time period for filing a motion for new trial is a “criti-
cal stage” under the Sixth Amendment. Instead, those courts
categorized the motions at issue as “collateral” because they
were filed after direct appeals were exhausted, a result consis-
tent with the Supreme Court’s holding that the right to coun-
sel ceases to exist after a defendant’s first appeal. See
Pennsylvania v. Finely, 481 U.S. 551, 555 (1987) (“[T]he
right to appointed counsel extends to the first appeal of right,
and no further.”). We have found no case that holds the pre-
appeal time period is not a “critical stage.”4
4
At least one other circuit has made the same finding. See McAfee, 630
F.3d at 393 (“Every federal circuit court to address the question of
whether the post-trial, pre-appeal time period for making a motion for new
trial is a critical stage has concluded that it is.”).
5234 RODGERS v. MARSHALL
[5] Accordingly, guided by this “persuasive authority,”
Mendez, 556 F.3d at 767, we conclude that it is clearly estab-
lished Supreme Court law that a pre-appeal motion for new
trial is a “critical stage” under the Sixth Amendment. This
conclusion is in accord with the Supreme Court’s long-
standing recognition that the right to counsel is one of the
most fundamental in our criminal justice system. “Of all the
rights that an accused person has, the right to be represented
by counsel is by far the most pervasive, for it affects his abil-
ity to assert any other rights he may have.” Penson v. Ohio,
488 U.S. 75, 84 (1988). For this reason, examples are legion
where the Supreme Court applied its “critical stages” jurispru-
dence to particular fact-patterns, including psychiatric inter-
views, sentencings, pretrial line ups, preliminary hearings,
and appeals. The Supreme Court’s Sixth Amendment “critical
stage” jurisprudence establishes a legal principle that “clearly
extends” to the context of a pre-appeal motion for new trial.
See Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010). A
contrary conclusion would represent an unreasonable applica-
tion of that principle. See Williams, 529 U.S. at 407.

Re-Asserting the Right to Counsel After a Faretta
Waiver

Before reviewing the state court’s decision to determine
whether it was contrary to, or involved an unreasonable appli-
cation of, “clearly established federal law,” we next address
whether a criminal defendant can re-assert the right to counsel
after previously waiving it.

[6] The state court’s rejection of Rodgers’ claim turned on
the application of the California standard governing the
reappointment of counsel previously waived. Therefore, our
finding that the right to counsel for a new trial motion is
“clearly established” does not end our inquiry. This Court
must also determine whether the denial of Rodgers’ request
for counsel to file such a motion because he previously
 RODGERS v. MARSHALL 5235
waived his right to trial counsel was contrary to, or involved
an unreasonable application of, clearly established law.

[7] While the Sixth Amendment’s guarantee of the right to
counsel at all “critical stages” has been long established, the
Supreme Court has also recognized that a criminal defendant
has a “reciprocal constitutional right to ‘proceed without
counsel when he voluntarily and intelligently elects to do
so.’ ” John-Charles v. California, 646 F.3d 1243, 1248 (9th
Cir. 2011) (quoting Faretta v. California, 422 U.S. 806, 807
(1975)). As we have previously acknowledged, “the Supreme
Court has never explicitly addressed a criminal defendant’s
ability to re-assert his right to counsel . . . after a previous
waiver of that right during trial . . . .” Ignacio, 360 F.3d at
1056. However, applying the Supreme Court’s general gov-
erning principles described above, we previously determined
it is “clearly established federal law” that a defendant’s re-
assertion of the right to counsel at a separate, post-trial pro-
ceeding cannot be denied simply “on the grounds that the
defendant has previously waived that right.” Id. at 1059. We
abide by our earlier holding.

In Robinson v. Ignacio, a case with strikingly similar facts
to this case, a habeas petitioner alleged the state trial court
should have allowed him to revoke his waiver of trial counsel
and should have appointed counsel when he requested repre-
sentation for sentencing. Id. at 1056. Recognizing the
Supreme Court’s rule that the right to counsel can be waived,
we held:

Because the right to counsel is so central to our con-
cepts of fair adjudication, we are reluctant to deny
the practical fulfillment of the right—even once
waived—absent a compelling reason that will sur-
vive constitutional scrutiny . . . . Therefore, although
we recognize the right to counsel—once waived—is
no longer absolute, we start with the strong presump-
5236 RODGERS v. MARSHALL
tion that a defendant’s post-trial request for the
assistance of an attorney should not be refused.

Id. at 1058 (quoting Menefield, 881 F.2d at 700) (emphasis
added). We then emphasized that trial courts have discretion
to deny requests for the appointment of counsel in some
instances, “such as when requests are made on the eve of trial
for purposes of delay.” Id. (citing Menefield, 881 F.2d at 700).
But, there is a “substantial practical distinction between delay
on the eve of trial and delay at the time of a post-trial hear-
ing.” Id. Indeed, “post-verdict continuances [are] far less
likely to ‘substantially interfere with the court’s or the parties’
schedules.’ ” Id. (quoting Menefield, 881 F.2d at 700-01).
Therefore, absent extraordinary circumstances, “a defendant’s
post-trial revocation of his wavier should be allowed unless
the government can show that the request is made ‘for a bad
faith purpose.’ ” Id. (citing Menefield, 881 F.2d at 701). As
explained in Ignacio, the conclusion that a defendant retains
his right to re-assert the right to counsel post-trial is “ ‘foreor-
dained by the Sixth Amendment and Supreme Court prece-
dent.’ ” Id. at 1058 n.7 (citing Bell, 190 F.3d at 1092-93).

Numerous other federal circuit courts have also held that a
trial court must give due consideration to a request for counsel
at a post-trial proceeding, despite a previous waiver of trial
counsel. See, e.g., United States v. Taylor, 933 F.2d 307, 311
(5th Cir. 1991) (holding trial court violated the Sixth Amend-
ment by refusing to appoint counsel to represent defendant at
sentencing); United States v. Fazzini, 871 F.2d 635, 643 (7th
Cir. 1989) (holding defendant’s express revocation of an ear-
lier waiver of counsel at sentencing requires “at least an
inquiry by the district judge into the defendant’s represen-
tional desires”); United States v. Holmen, 586 F.2d 322, 324
(4th Cir. 1978) (holding it was error to not have appointed
counsel at the sentencing stage following the withdrawal of
waiver of trial counsel); Davis v. United States, 226 F.2d 834,
840 (8th Cir. 1955) (holding that a request for counsel prior
 RODGERS v. MARSHALL 5237
to sentencing after a wavier of trial counsel requires the court
to inquire whether the waiver has been revoked).

Five federal circuits have interpreted the Supreme Court’s
Sixth Amendment jurisprudence “to mean that the right to
counsel is so integral to the fair administration of our justice
system that a defendant who has waived his right to counsel
may nonetheless re-assert” it; no circuit court has ruled to the
contrary. Ignacio, 360 F.3d at 1059. Given these convergent
holdings, as well as the general principles underlying the
Supreme Court’s Sixth Amendment jurisprudence, it is
“clearly established federal law” that a defendant’s re-
assertion of the right to counsel at a post-trial proceeding can-
not be denied simply “on the grounds that the defendant has
previously waived” it. Ignacio, 360 F.3d at 1059.

Although we recognize Robinson v. Ignacio as binding on
this Court, we must address a recent case that, at first glance,
calls Ignacio’s holding into question. In John-Charles v. Cali-
fornia, this Court applied a narrower interpretation of the
“clearly established” requirement and addressed the appeal of
a habeas petitioner who requested the appointment of counsel
during trial after initially waiving his right to trial counsel.
646 F.3d at 1250-51. As in Ignacio, we observed that the
Supreme Court in Faretta left open the question of “whether
and under what conditions a defendant who validly waives his
right to counsel has a Sixth Amendment right to reassert it
later in the same stage of his criminal trial.” Id. at 1249
(emphasis added). Specifically, we held:

In short, the Supreme Court has not clearly articu-
lated a constitutional right to post-Faretta reappoint-
ment of counsel during trial. It has not defined the
standard of review that should apply to trial courts’
handling of such issues. And it has not spoken on
whether a trial court’s error in ruling on a reappoint-
ment request is structural or trial error. This silence
5238 RODGERS v. MARSHALL
compels us to defer to the state court’s reasonable
attempts to fill the void.

Id. at 1251 (emphasis added). Rather than overruling Ignacio,
we carefully distinguished it, repeatedly emphasizing that the
claim in John-Charles involved the re-assertion of the right to
counsel during trial — not during a separate, post-trial pro-
ceeding. Id. at 1252. In fact, we confirmed that Ignacio “did
not purport to address the question of whether a self-
represented defendant has a right to reappointment of counsel
once trial proceedings have begun, rather than during a sub-
sequent proceeding.” Id. (emphasis added).

The narrower interpretation of Section 2254’s “clearly
established” requirement in John-Charles stemmed from two
Supreme Court decisions indicating that its precedent must be
“closely on point” or give a “clear answer to the question
presented” to qualify as “clearly established federal law.” Id.
at 1248 (citing Wright v. Van Patten, 552 U.S. 120, 125
(2008) and Carey v. Musladin, 549 U.S. 70 (2006)). However,
unlike this case, those two cases involved novel situations in
which the Supreme Court was silent. See Wright, 552 U.S. at
125 (finding it was not clearly established law that “counsel’s
participation by speaker phone [in a plea hearing] should be
treated as a ‘complete denial of counsel.’ ”); Carey, 549 U.S.
at 77 (holding there was no clearly established law regarding
the prejudicial effect of spectators’ courtroom conduct on fair
trial rights). Because this intervening Supreme Court authority
defining the scope of AEDPA review is not “clearly irrecon-
cilable” with our decision in Robinson, we are not free to “re-
ject the prior opinion of this court as having been effectively
overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc).

[8] Ignacio therefore compels our conclusion that it vio-
lates clearly established federal law to deny counsel in a post-
trial, pre-appeal proceeding simply because the defendant has
previously exercised his right to represent himself. We are not
 RODGERS v. MARSHALL 5239
persuaded that Rodgers’ claim differs from that of the peti-
tioner in Ignacio merely because it deals with a new trial
motion rather than sentencing. In all material aspects, Rod-
gers’ claim is indistinguishable from that in Ignacio, in which
we focused not on attributes inherent in sentencing proceed-
ings, but rather on the basic characteristics present in all post-
trial proceedings. In fact, a motion for new trial and sentenc-
ing are the main elements of a post-trial proceeding. For this
very reason, we previously recognized:

It is not surprising that a criminal defendant, having
decided to represent himself and then having suf-
fered a defeat at trial, would realize that he would be
better served during the remainder of the case by the
assistance of counsel. A criminal defendant may ini-
tially assert his right to self-representation for rea-
sons that later prove unsound. The accused may
doubt the willingness of an appointed attorney to
represent his interests. More often, the accused may
have a baseless faith in his ability to mount an effec-
tive defense. The lure of self-representation may,
however, exact a significant price; lost at trial, the
defendant may miss important opportunities and
even create gaping holes in his own case. The
accused has little recourse against the failings caused
by his own inartfulness.

Menefield, 881 F.2d at 700 (emphasis added). Indeed, forcing
criminal defendants to stumble through post-trial proceedings
— sentencings or otherwise — “serves neither the individual
nor our system of adversarial justice well.” Id.

The California State Court’s Decision

Having identified the “clearly established federal law” that
governs Rodgers’ Sixth Amendment claim, we review the
state court’s decision to determine whether it was contrary to,
or involved an unreasonable application of, that law.
5240 RODGERS v. MARSHALL
Rodgers informed the trial court he wished to file a motion
for new trial immediately following the guilty verdict. At that
time, Rodgers requested the reappointment of counsel, but the
trial court denied Rodgers’ request, holding:

We aren’t doing anything like that right now, Mr.
Rodgers. If you have some request that you want to
make a motion for something, I expect that you will
do that and you will serve it, and you will file it, we
will take it up at that time.

A month later, Rodgers again requested counsel for perfect-
ing a new trial motion, this time in a written motion. The trial
court once more denied Rodgers’ request, and the following
exchange occurred:

RODGERS: Your Honor, also, if you are going to
deny counsel —

COURT: You are not going to get counsel, Mr.
Rodgers. You made this election to
represent yourself. Everybody tried to
talk you out of it at the time. You
insisted you wanted to do it. You are
doing it. We aren’t going to substitute
in an attorney at this time.

In addressing the trial judge’s denial of Rodgers’ request
for counsel, the California appellate court reasoned:

When, as here, a defendant has exercised his right to
represent himself at trial and later seeks to have
counsel appointed, the court’s decision to deny coun-
sel is reviewed for an abuse of discretion. In deter-
mining whether the court abused its discretion, we
consider the “totality of the facts and circum-
stances.”
 RODGERS v. MARSHALL 5241
(internal citations omitted). The court then focused on the fact
Rodgers switched between representation and self-
representation at various times throughout the case, and noted
Rodgers’ motion did not include facts or reasons in support.
The court also held Rodgers “exhibited considerable knowl-
edge of both trial tactics and trial procedure,” and ultimately
concluded the trial judge did not abuse his discretion in
declining to appoint counsel for a new trial motion.

[9] The California appellate court’s decision is indistin-
guishable from the state court decision we held to be contrary
to clearly established federal law in Ignacio. There, as here,
the state court incorrectly applied an abuse of discretion stan-
dard in determining the trial court did not violate the petition-
er’s Sixth Amendment rights. As we explained in Ignacio,
and as holds equally true here, this standard permitted the
state court to affirm the denial of the defendant’s timely
request for representation without any basis other than “the
discredited idea that once waived, the right to counsel cannot
be reasserted at sentencing.” Ignacio, 360 F.3d at 1061. It is
“clearly established federal law” that the post-trial motion for
new trial is a “critical stage” that implicates the right to coun-
sel, as is a defendant’s right to re-assert the right to counsel
during post-trial proceedings. For that reason, trial courts can-
not deny a defendant’s timely request for representation with-
out a sufficient reason. Here, the state trial court had no such
reason, and to the extent the California appellate court found
such reason, its “decision was based on an unreasonable
determination of the facts.” See 28 U.S.C. § 2254(d)(2).

While Rodgers did not give any reasons for his request for
counsel, it is clear the trial judge rejected his request “based
primarily on the discredited idea that once waived, the right
to counsel cannot be re-asserted . . . .” Ignacio, 360 F.3d at
1061. Regardless, denying Rogers’ request because he failed
to articulate a reason is tantamount to denying his request
because of his prior Farretta waiver. Indeed, the obvious rea-
son Rodgers wanted counsel — even if he did not explicitly
5242 RODGERS v. MARSHALL
state it — was his belief that trained counsel would be better
able to prepare his new trial motion.

[10] Because the trial court’s focus on Rodgers’ waiver of
counsel at trial was inappropriate, we conclude its denial of
Rodgers’ request violated his Sixth Amendment right to coun-
sel. Therefore, the California appellate court’s decision, which
upheld the trial judge’s denial of Rodgers’ request, was “con-
trary to . . . clearly established federal law.”

Uncertified Issues

We deny Rodgers’ motion to expand the Certificate of
Appealability pursuant to Ninth Circuit Rule 22-1 and decline
to address the uncertified issues raised in his brief, as Rodgers
has not made a “substantial showing of the denial of a consti-
tutional right.” 28 U.S.C. § 2253(c)(2); see also Cooper-Smith
v. Palmateer, 397 F.3d 1236, 1245 (9th Cir. 2005).

CONCLUSION

We acknowledge the difficulties that faced the trial judge
in dealing with a defendant who alternated back and forth
between asking for counsel during pretrial proceedings and
then chose to go it alone at trial. However, those difficulties
— while frustrating — must give way to constitutional con-
cerns and a defendant’s right to counsel at all “critical stages”
of his criminal prosecution.

Accordingly, we hold Rodgers’ Sixth Amendment right to
counsel was violated when the trial court denied his timely
request for representation for a new trial motion based on the
notion that once waived, the right to counsel cannot be re-
asserted. This holding is consistent with our previous rulings,
as well as those of numerous federal circuit courts applying
clearly established Supreme Court precedent. Furthermore,
due to the fundamental importance of the right to counsel,
Rodgers need not prove prejudice and a harmless error analy-
 RODGERS v. MARSHALL 5243
sis is not required. See Ignacio, 360 F.3d at 1061 (citing
Cronic, 466 U.S. at 659).

The Supreme Court has instructed that courts have “broad
discretion in conditioning a judgment granting habeas relief.
Federal courts are authorized, under 28 U.S.C. § 2243, to dis-
pose of habeas corpus matters ‘as law and justice require.’ ”
Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Regarding the
right to counsel, we previously held that a habeas remedy
“should put the defendant back in the position he would have
been in if the Sixth Amendment violation never occurred.”
Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003). More-
over, the Supreme Court “has repeatedly stated that federal
courts may delay the release of a successful habeas petitioner
in order to provide the State an opportunity to correct the con-
stitutional violation found by the court.” Hilton, 481 U.S. at
775.

[11] Therefore, in this case, a remand to the California trial
court is appropriate. The district court is directed to remand
this matter to the state trial court for Rodgers to receive effec-
tive assistance of counsel for consideration of filing a new
trial motion.

REVERSED and REMANDED.