Rodgers v. Marshall

• Decision Date: 17 May 2012
• Docket Number: No. 10–55816.,10–55816.
• Citation: 2012 Daily Journal D.A.R. 6426,678 F.3d 1149,12 Cal. Daily Op. Serv. 5337
• Parties: Otis Lee RODGERS, Petitioner–Appellant, v. John MARSHALL, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

678 F.3d 1149

12 Cal. Daily Op. Serv. 5337

2012 Daily Journal D.A.R. 6426

Otis Lee RODGERS, Petitioner–Appellant,

v.John MARSHALL, Warden, Respondent–Appellee.

No. 10–55816.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Jan. 12, 2012.

Filed May 17, 2012.

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

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

On Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:08–cv–01003–VAP–MLG.

Before: STEPHEN REINHARDT and WILLIAM A. FLETCHER, Circuit Judges, and JACK ZOUHARY, District Judge.^*

OPINION

ZOUHARY, District Judge:

Introduction

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

After exhausting state court remedies, Rodgers filed a petition for a writ of habeas corpus in federal court, raising twenty-one claims for relief. The district court denied the petition, 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 certified 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 defendant's request for legal counsel to file a post-verdict motion 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 district 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. Rodgers 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 vehicle. 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 application of, controlling United States Supreme Court precedent.

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 Rodgers' 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 awakened 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 Rodgers. Rodgers, who was calling Joyce a prostitute and threatening 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 talking 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 complex 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 did not have a driver's license, the deputy placed him in the back of the patrol car. Joyce told the deputy that Rodgers 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 January 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 public 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 February 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 incident, 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. 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 Rodgers' 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 personally used a firearm while committing the assault and making 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 committed 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 “perfect 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 during closing argument. The trial court denied his request for the transcript.

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...