Arrendondo v. Neven, 11–15581.

Decision Date18 August 2014
Docket NumberNo. 11–15581.,11–15581.
PartiesArmis ARRENDONDO, Petitioner–Appellant, v. Dwight NEVEN, Warden; Attorney General of the State of Nevada, Respondents–Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

OPINION TEXT STARTS HERE

Heather Fraley (argued), Assistant Federal Public Defender; Rene L. Valladares, Federal Public Defender; Paul G. Turner, Assistant Federal Public Defender; Danice Arbor Johnson, Research & Writing Specialist, Office of the Federal Public Defender, Las Vegas, NV, for PetitionerAppellant.

Karen A. Whelan (argued), Deputy Attorney General; Catherine Cortez Masto, Attorney General, Office of the Attorney General, Las Vegas, NV, for RespondentsAppellees.

Appeal from the United States District Court for the District of Nevada, James C. Mahan, District Judge, Presiding. D.C. No. 2:07–cv–01312–JCM–GWF.

Before: FERDINAND F. FERNANDEZ, RICHARD A. PAEZ, and MARSHA S. BERZON, Circuit Judges.

Opinion by Judge BERZON; Concurrence by Judge FERNANDEZ.

OPINION

BERZON, Circuit Judge:

Armis Arrendondo represented himself against theft charges at trial and was sentenced under Nevada's habitual criminal statute, Nev.Rev.Stat. § 207.010, to two concurrent life sentences, with the possibility of parole after ten years. He contested his continued detention via a petition for habeas corpus under 28 U.S.C. § 2254, and now appeals the district court's (1) denial, on the merits, of his claim of invalid waiver of his right to counsel and (2) dismissal as unexhausted of his claim of denial of the use of compulsory process. Compelled by the statutory limits on our habeas corpus review of state convictions, we affirm.

I.

In September 2003, a Las Vegas homeowner returned from a vacation in Colorado to find his residence ransacked, several of his possessions missing, and his Winnebago motor home gone from its garage. The ensuing investigation led authorities to Arrendondo. Nevada indicted him on one count of possession of a stolen vehicle and another of possession of stolen property. SeeNev.Rev.Stat. §§ 205.273, 205.275.

At Arrendondo's arraignment, he pleaded not guilty. In the months that followed, several public defenders represented Arrendondo in pre-trial proceedings. Public defender Drew Christensen represented him at arraignment. Several weeks later, at a hearing on Arrendondo's motion for release, public defender Delbert Martin entered an appearance. Public defender Victor Austin was then appointed to represent Arrendondo, but at several subsequent calendar calls public defender Lynn Avants appeared instead of Austin.

Arrendondo grew dissatisfied with the quality of representation provided him by the public defender's office. At the second of the two calendar calls at which Avants appeared, Arrendondo expressed frustration that he had not met or been represented in court by Austin, his appointed lawyer. The court ordered Austin “to be prepared for [t]rial or another Public Defender will be assigned.”

Approximately two and a half months after his arraignment, Arrendondo filed a handwritten Motion to Dismiss Counsel and Appointment of Alternate Counsel. In it, he alleged that his appointed attorney, Victor Osten [sic],” had “refus [ed] or fail[ed] to communicate and/or visit” him in jail; had routinely missed court dates; and had “failed to assign an investigator to gather information.” Arrendondo concluded by stating that “clearly, a conflict of interest now exist[s] between counsel/client (defendant).” At a subsequent hearing on the matter, Austin explained that Arrendondo had not complied with Austin's request to reveal the names and addresses of potential witnesses, a representation Arrendondo disputed. It was this failure to furnish names and addresses, Austin continued, that explained his unwillingness to appoint an investigator. Arrendondo, in turn, demanded “competent counsel to represent me because it just seems like he's absent-minded. I tell him one thing and two minutes later he forgets what I told him.”

The court denied Arrendondo's motion for new counsel. Nonetheless, for reasons not apparent from the record, public defender Kristen M. Lynch replaced Austin as Arrendondo's attorney.

Over half a year later Arrendondo filed a second handwritten Motion to Dismiss Counsel. That motion alleged that Lynch had missed a court date; had “fail [ed] to file pretrial motions, writs, or petitions” in support of his case; and had “refus[ed] or fail[ed] to communicate and/or visit” Arrenondo in jail. It continued:

Lynch (Public Defender) and others like her are only interested in railroading the defendant and/or having the defendant sign a plea agreement. There is definitely a conflict of interest here. Its [sic] like having a nemesis in charge of ensuring that justice is done. The only fair remedy is to have a state appointed attorney assigned to this case, instead of a public defender.

The motion also sought to permit Arrendondo to proceed pro se.

At a hearing held in response to Arrendondo's motion, at which public defender Lynn Avants appeared rather than Lynch, the court canvassed Arrendondo to determine whether he sought to waive his right to counsel and, if so, whether he was doing so knowingly, intelligently, and voluntarily:

Court:.... Do you want to represent yourself or not?

Defendant: I believe, um, I would need standby counsel.

Court: We don't do that, in most instances. This certainly wouldn't be one. Maybe in a murder case I might concede. I don't know. I don't typically do that.

Defendant: When it comes to posing viable objections or proper arguments, you know, an attorney who's been practicing every day, um, obviously would do a much better job than myself.

Court: Do you want to let them do their job or do it yourself?

Defendant: I believe I can prove my innocence. With the assistance of counsel, of course, it will be much easier.

Court: Do you want to go ahead and let your attorney assist you?

Defendant: Will he be representing me?

Court: Are you the attorney of record?

Mr. Avants: No. It's Ms. Lynch.

Court: It's Ms. Lynch.

Defendant: I cannot. No way.

Court: Let's get on with it here. Do you want to represent yourself?

Defendant: Absolutely.

Court: You don't have to say anything more. You've made your decision?

Defendant: Between incompetent counsel or self-representation?

Court: We don't have the whole day to spend here.

....

Court: You prefer to take the disadvantage of not having full knowledge of the law and letting some prosecutor perhaps take advantage of you in that regard. Is that your thinking?

Defendant: This is a situation—it's between incompetent counsel, the ineffective assistance of counsel.

Court: We're not getting into that. I want to know if you want to represent yourself. I don't care why. I want you to realize you're up against a lot of problems here.

Defendant: I have no other choice, apparently.

The court advised Arrendondo that proceeding pro se was “unwise”; that he would “have to adhere to the same procedural rules as the lawyers”; that he could not complain of ineffective assistance of counsel on appeal; that the state would be represented by an experienced prosecutor; that he would not receive special library privileges at the jail; that his legal ignorance would “give the prosecutor an advantage”; and that, if he testified, he would have difficulty arguing his own credibility before the jury. Arrendondo acknowledged that he understood each of these statements.

The court then outlined the elements of the crimes of which Arrendondo was accused and inquired as to Arrendondo's knowledge of possible defenses. The court also reviewed the possible penalties carried by a conviction:

Court: You understand the penalties that are possible here?

Defendant: I believe it carries one to six.

Court: Possession of stolen vehicle is one to 10 years in prison and as much as a $10,000 fine. Possession of stolen property over $2,500 is one to 10 years in prison and a $10,000 fine. If it's between 250 and 2,500 dollars, I believe it's a C felony, which is one to five, and a $10,000 fine. If it's under $250, it's a misdemeanor. Do you understand that?

Defendant: Yes.

The court then found that Arrendondo had “knowingly and freely and voluntarily waiv[ed] his right to counsel and granted his motion to proceed pro se.

Before trial, Arrendondo filed a Notice of Alibi Witnesses, listing twelve individuals who would allegedly testify on his behalf. Although Arrendondo included the addresses and telephone numbers of seven of these witnesses, he failed to provide full contact information for the rest.

At trial, at least two of Arrendondo's witnesses did not appear. Arrendondo did not have their “subpoena returns” because the subpoenas “went out a little late.” As he explained, “I wanted to schedule this—it was Thursday, and I had no idea we were going to trial today.... I thought I was just picking the jury today.” At 5:15 PM that day, the court adjourned. It instructed Arrendondo to produce his absent witnesses at 10:00 AM the following morning. Those witnesses did not appear at the appointed hour.

The jury convicted Arrendondo on both counts. Days later, the state filed a Notice of Intent to Seek Punishment as a Habitual Criminal under Nev.Rev.Stat. § 207.010, on the basis of four prior convictions. For a felon previously convicted of three felonies, § 207.010(b) prescribes any of three possible punishments, the most severe of which is life without the possibility of parole. The court sentenced Arrendondo to two concurrent life sentences, with the possibility of parole after ten years.

Arrendondo appealed to the Nevada Supreme Court. That court ordered appointment of counsel, and Marvin L. Longabaugh was selected to represent Arrendondo.

In his briefs before the Nevada Supreme Court, Arrendondo's counsel pressed three claims, two of which are relevant here: He argued that (1) the State's failure to advise the district court that Arrendondo might be...

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