Davis v. Morris, 80-5695

• Decision Date: 01 October 1981
• Docket Number: No. 80-5695,80-5695
• Citation: 657 F.2d 1104
• Parties: Bruce McGregor DAVIS, Petitioner-Appellant, v. Paul J. MORRIS, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1104

657 F.2d 1104

Bruce McGregor DAVIS, Petitioner-Appellant, v. Paul J. MORRIS, Warden, Respondent-Appellee.

No. 80-5695.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 5, 1981.

Decided Oct. 1, 1981.

Larry L. Scissors, Los Angeles, Cal., for petitioner-appellant.

Howard J. Schwab, Los Angeles, Cal., for respondent-appellee.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and HUG, Circuit Judges, and HENDERSON, ^* District Judge.

CHAMBERS, Circuit Judge:

Davis was convicted in California in 1972 of two counts of first degree murder and of one count of conspiracy to commit murder and robbery. He was sentenced to concurrent life sentences with the judge's recommendation that he not be released during his lifetime unless the California Adult Authority was convinced that he would not be a danger to the community.

We have reviewed the arguments raised by Davis and find them to be unpersuasive. We restrict our discussion to the single issue of his right to represent himself at his trial. When he sought to assert this right at the outset of his trial, after careful and thorough questioning, the judge centered his attention on Davis' ability to conduct his defense so as to preserve his constitutional rights. He then concluded that Davis was not authorized to waive his constitutional right to representation by counsel, a determination that was consistent with California law prior to the United States Supreme Court's decision three years later in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The subject was thereafter renewed but again the trial judge, after questioning Davis, concluded that Davis ought to have the services of an attorney for the effective presentation of his case within constitutional standards then applicable under California law.

An appeal was taken to the California court of appeal and Davis' attorney presented a variety of issues, many of them raising claims of error in matters of law, e. g. the denial of motions for change of venue, for the quashing of petit and grand jury panels, for severing of counts; error in the admission of evidence and giving of instructions; a claim of prosecutor misconduct, etc. In a lengthy opinion, the California court of appeal rejected these claims of error and also rejected a claim, made in Davis' reply brief, that he had been denied a federal constitutional right to represent himself under Faretta v. California, which was decided three years after Davis' trial, but while his appeal was pending. The court of appeal's discussion of the Faretta issue consumed less than a half of a page of the extensive, 79-page, typed opinion. The court summarily denied relief on this issue stating that Faretta had recently been held to be non-retroactive by the California Supreme Court in People v. McDaniel, 16 Cal.3d 156, 127 Cal.Rptr. 467 545 P.2d 843 (1976.) ¹ The judgment of conviction was affirmed, the California Supreme Court denied a hearing, and the United States Supreme Court denied certiorari.

In January 1979, Davis (again through his attorney) filed an application in federal district court for a writ of habeas corpus. No such application had been made to the state court. He contended that Faretta was retroactive in effect. He also argued, now for the first time, that even if it were not retroactive, the law of this circuit prior to the decision in Faretta had required that he be granted his motion to represent himself. The district judge denied the writ and Davis appealed to this court. 487 F.Supp. 651.

In determining that Davis was required under California law, then in effect, to have the assistance of counsel, the trial judge obviously considered and articulated those aspects of his inquiry that were relevant to the law that was then in effect. He had little reason to anticipate Faretta and even less reason to anticipate a claim that Faretta would be applied retroactively. On this record, we cannot tell whether the reasons he expressed were the totality of his reasons for refusing to allow Davis to...