Armant v. Marquez
| Citation | 772 F.2d 552 |
| Decision Date | 24 September 1985 |
| Docket Number | No. 84-5672,84-5672 |
| Parties | Jerome M. ARMANT, Petitioner/Appellant, v. Joe MARQUEZ, Respondent/Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Joseph F. Walsh, Los Angeles, Cal., for petitioner/appellant.
Donald F. Roeschke, Los Angeles, Cal., for respondent/appellee.
Appeal from the United States District Court for the Central District of California.
Before NELSON, BOOCHEVER and REINHARDT, Circuit Judges.
Jerome M. Armant, Jr., appeals from the district court's denial of his petition for writ of habeas corpus. In his petition, Armant alleges that his sixth amendment right to self-representation was violated by the California Superior Court. After an unequivocal, timely request to proceed pro se, Armant sought a continuance in order to prepare his defense. He maintains that the court's denial of this continuance was an abuse of discretion because it effectively prevented him from execising his constitutional right of self-representation. We agree, and reverse and remand with instructions.
Armant was charged on February 11, 1981, with arson. The Los Angeles County District Attorney claimed that on January 4, 1981, Armant set fire to an automobile belonging to a woman alleged to be his estranged girl friend. On February 11, 1981, a Los Angeles County Public Defender was appointed to represent him. Armant was arraigned and entered a not guilty plea.
On February 18, 1981, in a brief hearing before the Hon. Edward A. Hinz, the following colloquoy took place:
MR. CLARK [Armant's attorney]:
First, your Honor, Mr. Armant indicated to me that he wanted to be appointed cocounsel in this case.
I informed Mr Armant that the Public Defender's position is that we are not cocounsel for clients; that Mr. Armant wanted to represent himself.
He has a constitutional right to do that. But that the Public Defender would not be appointed in a cocounsel status in this case.
THE COURT: Well, the court so orders.
Following this exchange, Judge Hinz set a trial date of March 30, 1981, and denied Armant's motions to be released on his own recognizance and to reduce bail.
In his next court appearance, March 30, 1981, Armant received permission to address the court. He complained of difficulties with his attorney. He told Judge Hinz that he had asked his attorney to subpoena two witnesses, but that his attorney had failed to subpoena one of them. He said that he had asked for a copy of the transcript of his preliminary hearing, but that his attorney failed to provide it. After asking for a review of his motions to be released on his own recognizance, and to be appointed co-counsel, the following exchange ensued:
Would you hand Mr. Armant the appropriate form? We'll take this case up later.
Is that what you want to do, Mr. Armant?
You want to be your own lawyer?
THE DEFENDANT: Yes. I feel, Your Honor, if this man doesn't help me, you know--
After Armant had filled out the form and had given it to the clerk, Judge Hinz told Armant that he had a right to an attorney if he wished, and questioned him about his desire to give up that right. Armant unambiguously stated that he wanted to represent himself. Judge Hinz then asked him, "Are you prepared to go to trial in this matter today." Armant first said THE COURT: The question I want to know is, are you ready to go to trial today?
It's not a timely-made request.
I'm not going to continue this matter for three weeks.
The court, after asking Armant's attorney if he was ready, then set the matter for trial.
At trial the next day before the Hon. John A. Shidler, Armant again received permission to address the court. He asked for a continuance of 14 to 21 days to "hire an attorney of [his] own choosing." He complained again of conflicts with his attorney. Judge Shidler denied the motions and added, Armant responded that he would rather sit in the holding tank because he did not want to be in court with his appointed attorney.
After Armant left the courtroom, the trial commenced. The State called three witnesses. Armant declined his attorney's offer to testify in his own defense, and no other defense witnesses were called. At 2:35 p.m, the jury retired to deliberate. The same afternoon they returned a verdict of guilty of arson, a violation of Cal.Penal Code Sec. 451(d).
Armant's motion for a new trial was denied on June 8, 1981, by Judge Shidler. Armant's conviction was affirmed by the California Court of Appeal, Second District. His petition for hearing before the California Supreme Court was denied. His petition for writ of habeas corpus was denied without a hearing in the district court. Armant filed this timely appeal.
Armant has now served his sentence, but his petition is not moot because the collateral consequences of his felony conviction persist. Javor v. United States, 724 F.2d 831, 835 (9th Cir.1984) (citing Pennsylvania v. Mimms, 434 U.S. 106, 108 n. 3, 98 S.Ct. 330, 332 n. 3, 54 L.Ed.2d 331 (1977)). At the time his petition was filed, he was on parole for this offense. He was thus "in custody" as required by 28 U.S.C. Sec. 2254(b). See Cervantes v. Walker, 589 F.2d 424, 425 n. 1 (9th Cir.1978).
The sixth amendment guarantees the right of a defendant to represent himself. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). A request for self-representation must be unequivocal, Meeks v. Craven, 482 F.2d 465, 466-68 (9th Cir.1973), and timely, and must not be a tactic to secure delay. Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir.1982). If these criteria are met, then a defendant's motion to represent himself should be granted.
Here, Armant made an unequivocal request to represent himself on March 30 by filling out a form and unambiguously telling the court that he was aware of what he was doing. This request was made before the jury was empaneled. Accordingly, under the standard set forth in Fritz, 682 F.2d at 784, it was timely as a matter of law unless it was a tactic to secure delay. See also Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.), cert. denied, 459 U.S. 976, 103 S.Ct. 313, 74 L.Ed.2d 291 (1982).
In Fritz, the state appellate court, relying on evidence in the trial court record found that the petitioner's motion to proceed pro se was "a tactic 'to delay his scheduled trial and obstruct the orderly course of the administration of justice.' " 682 F.2d at 784 (quoting State v. Fritz, 21 Wash.App. 354, 365, 585 P.2d 173, 180 (1978)). Fritz then petitioned for a writ of habeas corpus and moved for an evidentiary hearing on that issue. Id. The district court misapprehended the legal standard and evaluated whether granting the motion would have the effect of delay. Id. Concluding that it would, the district court denied the writ. We reversed and remanded with instructions for the district court to conduct an evidentiary hearing on the state appellate court's finding of purpose to delay. Id. at 786.
The case before us differs from Fritz in a most significant way. It is true that neither the district court here nor the district court in Fritz considered whether the self-representation motion was a tactic designed to delay trial. However, in this case the district court was correct in not considering the petitioner's purpose because, in contrast to Fritz, the state appellate court did not find that the motion was a tactic to delay trial. In fact, nowhere in the record is there even a suggestion that Armant made this request for the purpose of delay; Armant was in jail at the time the motion was made and would apparently have remained there throughout the period of any continuance. 1 Accordingly, there is no reason in this case, unlike Fritz, to remand for an evidentiary hearing on the purpose of the motion. On these facts it is clear that Armant made an adequate request which was timely as a matter of law and that he was, therefore, entitled to exercise his right of self-representation.
We now turn to the crucial issue in this case, which is whether the court's denial of Armant's continuance motion under these circumstances was an abuse of discretion. See United States v. Daly, 716 F.2d 1499, 1511 (9th Cir.1983), cert. dismissed, --- U.S. ----, 104 S.Ct. 1456, 79 L.Ed.2d 773 (1984). An abuse of discretion will be found if "after carefully evaluating all relevant factors, we conclude that the denial was arbitrary or unreasonable." United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir.1985). This is a case-by-case inquiry; we are bound by no particular mechanical test. Id. at 1362 (citing Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964)).
In Flynt, we set forth four factors that appellate courts have considered when faced with this issue. First, we look to the degree of diligence by the appellant prior to the date beyond which a continuance is sought. Id. at 1359-60. Second, we consider whether the continuance would have served a useful purpose if granted. Id. at 1360. Third, we weigh the inconvenience that granting the continuance would have caused ...
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