Menefield v. Borg

• Decision Date: 02 August 1989
• Docket Number: No. 87-6651,87-6651
• Parties: James W. MENEFIELD, Petitioner-Appellant, v. Robert G. BORG, Warden, et al., Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 696

881 F.2d 696

58 USLW 2146

James W. MENEFIELD, Petitioner-Appellant, v. Robert G. BORG, Warden, et al., Respondent-Appellee.

No. 87-6651.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 31, 1988.

Decided Aug. 2, 1989.

James W. Menefield, Techachapi, Cal., in pro per,

Donald F. Roeschke, Deputy Atty. Gen., Los Angeles, Cal., for respondent-appellee.

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

Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.

REINHARDT, Circuit Judge:

I.

Appellant James Menefield, presently serving a twenty-nine year, 10 month sentence in California state prison, appeals the denial of his petition for habeas corpus. Menefield argues that the state trial court violated the Sixth Amendment when it refused his request for assistance of counsel in the preparation of a motion for a new trial.

In 1984, Menefield was arrested and brought to trial for burglary, attempted murder, assault with a deadly weapon, mayhem, and armed robbery. At pretrial proceedings, he was successively represented by two attorneys, and dismissed each in turn. After failing to achieve a working relationship with appointed counsel, Menefield asserted his right to self-representation. ¹ Appellant represented himself during extensive pretrial proceedings and then during a protracted trial. After his conviction on all counts, Menefield asked the court to appoint counsel to assist him in the preparation of a motion for a new trial. His request concentrated upon the intricacies of the California statute governing new trials. "I've studied it, but I just can't grasp it. I see what they're saying, but I just can't get deep off into it, like the other studies I did." The trial court denied the motion, citing two factors. First, the judge feared that the proceedings would be delayed while counsel familiarized himself with the transcript and the issues in the case. Second, although California grants a statutory right to petition the trial court for a new trial, the court concluded that the statute confers no substantive rights that could not later be raised on appeal.

"To tell the truth, if I appointed counsel at this point, we would have to get the entire transcript done, he would have to read every word of it to make the motion. Since its denial is going to result in the appeal, it seems to me the most appropriate thing is to wait for that time, or to say it differently, even though you waived your rights to counsel under the Faretta case that you are very familiar with, if I could see any significant impact that appointing counsel at this stage, and we are only talking about new trial motion for a practical matter, I would go ahead and do it, but I can't, so I am going to deny that."

Appellant's subsequent pro se motion for a new trial was denied. After exhausting his state remedies, appellant sought a writ of habeas corpus in federal court. The district court, adopting the magistrate's findings of law and fact, dismissed the petition. Menefield appealed, and we reverse.

II.

A.

The right of self-representation, long recognized in statute, first explicitly fell under the protection of the Constitution in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). In Faretta, the Supreme Court, while noting the tension between a right of self-representation and the Sixth Amendment right to effective assistance of counsel, concluded that the principles of free choice and human dignity woven through the Bill of Rights dictate deference to a defendant's decisions to proceed without a lawyer. "It is the defendant ... who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of 'that respect for the individual which is the lifeblood of the law.' " Id. at 834, 95 S.Ct. at 2541 (quoting Illinois v. Allen, 397 U.S. 337, 350-51, 90 S.Ct. 1057, 1064, 25 L.Ed.2d 353 (1970) (Brennan, J., concurring)).

Faretta struck the fundamental constitutional balance between the right to counsel and the right to self-representation; however, certain problems were clearly anticipated from the first formulation of the doctrine. Justice Blackmun, writing for the three dissenters, pointed out that Faretta left unresolved a series of important issues and questioned the federal court's ability to reconcile the procedural dilemmas raised by the self-representation rule. "How soon in the criminal proceeding must a defendant decide between proceeding by counsel or pro se? Must he be allowed to switch in midtrial?" Faretta, 422 U.S. at 852, 95 S.Ct. at 2549 (Blackmun, J., dissenting) (emphasis added). ² The dissenters anticipated that "these questions ... [would] ... be answered with finality in due course," id., and the issue of waiver and reassertion of the right to counsel has been frequently addressed in state or federal court. Although we have previously considered the interaction of the right to counsel and the right to self-representation in the context of pretrial and trial proceedings, we now face a question of first impression in our circuit: is a criminal defendant entitled to the assistance of an attorney at a post-trial hearing when prior to trial he waived the right to counsel and chose to represent himself?

B.

Faretta notwithstanding, we have long recognized that the right to counsel is among the most fundamental rights of 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 ability to assert any other right he may have." Penson v. Ohio, 488 U.S. ----, ----, 109 S.Ct. 346, 352, 102 L.Ed.2d 300 (1988) (quoting Schaefer, Federalism and State Criminal Procedure, 70 Harv.L.Rev. 1, 8 (1956)). Our adversary system is premised on the theory that the clash of trained counsel will best serve the court's truth-seeking function. Without the "guiding hand of counsel," the defendant may be unable to muster an adequate defense. See Argersinger v. Hamlin, 407 U.S. 25, 31, 92 S.Ct. 2006, 2009, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 796-97, 9 L.Ed.2d 799 (1963). Absence of counsel may frustrate the truth-seeking and fairness goals of the system. Justice Sutherland's observations, clear and accurate in 1932, are no less valid today.

Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence.

Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Because of the centrality of the right to counsel, we will not deny a defendant that right during a critical stage of the prosecution unless compelling circumstances require us to do so.

C.

Before discussing the interaction between the Faretta right and the right to counsel, we must first answer the question whether a defendant possesses the latter right at the time of the motion for a new trial. The right to effective assistance of counsel only attaches to certain parts of the criminal prosecution. The right to counsel was originally a trial right, but the Sixth Amendment provision of effective assistance of counsel has been extended to various "critical" stages of the prosecution. See, e.g., Estelle v. Smith, 451 U.S. 454, 471, 101 S.Ct. 1866, 1877, 68 L.Ed.2d 359 (1981) (psychiatric interview); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) (sentencing); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) (pre-trial line-up); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (preliminary hearings). See also Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (appeals). But cf. United States v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973) (photographic arrays). Critical stages of the prosecution include all parts of the prosecution implicating substantial rights of the accused. Mempa, 389 U.S. at 134, 88 S.Ct. at 256.

Since this circuit has never settled the question of whether a motion for a new trial is a critical stage of the prosecution, we must consider the factors enumerated by the Supreme Court. First, if failure to pursue strategies or remedies results in a loss of significant rights, then Sixth Amendment protections attach. Id. 389 U.S. at 135, 88 S.Ct. at 257. Second, where skilled counsel would be useful in helping the accused understand the legal confrontation, we find that a critical stage exists. Third, the right to counsel applies if the proceeding tests the merits of the accused's case. Ash, 413 U.S. at 311, 93 S.Ct. at 2574.

Under Ash, although the state trial court expressed doubt as to the significance of the motion, we think there can be little question that the motion for a new trial under California law is a critical stage of the prosecution. California penal code section 1181 provides nine distinct grounds for a new trial. The statutory provisions are the exclusive grounds for the trial judge to overturn the conviction of the accused. See People v. Dillard, 168 Cal.App.2d 158, 335 P.2d 702, 707 (1959).

Although section 1181 lists several independent grounds for reversing the jury, the most...