Tamplin v. Muniz, 070618 FED9, 16-15832

Docket Nº:16-15832
Opinion Judge:W. FLETCHER, CIRCUIT JUDGE
Party Name:Dwight Tamplin, Jr., Petitioner-Appellant, v. William Muniz, Warden, Respondent-Appellee.
Attorney:Katherine L. Hart (argued), Fresno, California, for Petitioner-Appellant. David Andrew Eldridge (argued), Deputy Attorney General; Tami M. Krenzin, Supervising Deputy Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney ...
Judge Panel:Before: Michael Daly Hawkins and William A. Fletcher, Circuit Judges, and John A. Kronstadt, District Judge. HAWKINS, Circuit Judge, dissenting:
Case Date:July 06, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Dwight Tamplin, Jr., Petitioner-Appellant,

v.

William Muniz, Warden, Respondent-Appellee.

No. 16-15832

United States Court of Appeals, Ninth Circuit

July 6, 2018

          Argued and Submitted October 16, 2017 San Francisco, California

          Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, District Judge, Presiding D.C. No. 1:12-cv-01633-AWI-SKO

          Katherine L. Hart (argued), Fresno, California, for Petitioner-Appellant.

          David Andrew Eldridge (argued), Deputy Attorney General; Tami M. Krenzin, Supervising Deputy Attorney General; Michael P. Farrell, Senior Assistant Attorney General; Xavier Becerra, Attorney General; Office of the Attorney General, Sacramento, California; for Respondent-Appellee.

          Before: Michael Daly Hawkins and William A. Fletcher, Circuit Judges, and John A. Kronstadt, [*] District Judge.

         SUMMARY[**]

         Habeas Corpus

         The panel reversed the district court's judgment denying California state prisoner Dwight Tamplin, Jr.'s petition for a writ of habeas corpus, and remanded with instructions to grant the writ, in a case in which Tamplin argued that his 25-years-to-life Three Strikes sentence was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975).

         Reviewing under the Antiterrorism and Effective Death Penalty Act the state habeas court's decision that Tamplin's Faretta claim was meritless, the panel held that the state court's two conclusions-that Tamplin's request to represent himself was equivocal, and that Tamplin waived his Sixth Amendment right by not continuing to object after a public defender was reappointed to represent him-were clearly contrary to established Supreme Court law.

         Reviewing de novo, the panel held that Tamplin's request to represent himself was timely; that Tamplin's appellate counsel rendered constitutionally deficient performance by failing to raise Tamplin's compelling Faretta claim; and that Tamplin was prejudiced by counsel's deficient performance.

         Dissenting, Judge Hawkins wrote that Tamplin has not established that the state court's decision was in direct and irreconcilable conflict with Supreme Court precedent, and has not shown that the state court ruling applying Faretta was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.

          OPINION

          W. FLETCHER, CIRCUIT JUDGE

         Dwight Tamplin appeals the denial of his petition for a writ of habeas corpus. He argues that his twenty-five-years-to-life sentence imposed under California's Three Strikes sentencing law was obtained in violation of his Sixth Amendment right under Faretta v. California, 422 U.S. 806 (1975), and that he is entitled to relief under 28 U.S.C. § 2254. We agree.

         I. Factual and Procedural Background

         On May 21, 2004, a California Highway Patrol officer stopped Tamplin and three other African-American men for a traffic violation. The officer called for backup after he smelled burned marijuana in the car and observed indicia of gang affiliation. Upon searching the car, officers discovered a .38 caliber handgun and a .357 caliber revolver. People v. Tamplin, No. F050103, 2007 WL 1365988, at *1 (Cal.Ct.App. May 10, 2007). Tamplin was charged in state court with possession of a firearm by a felon. Cal. Pen. Code § 12021(a)(1). He was also charged with a street gang enhancement under Cal. Pen. Code § 186.22(b)(1), as well as four "strikes" based on his prior conviction for four criminal offenses on May 28, 1991.

         Over the course of the next nine months, Tamplin cycled through three appointed attorneys. On February 10, 2005, while represented by public defender Kathleen Hall, Tamplin successfully moved to represent himself. Tamplin asked for appointment of "assistant counsel" five days later, but his request was denied. He represented himself without incident for the next four months. Trial was scheduled to begin on July 14, 2005, five months after Hall had last represented him.

         On June 22, Tamplin appeared in California Superior Court with privately retained attorney Greg Morris. A minute order shows that Morris requested a continuance to file a motion to substitute counsel. Two boxes on the minute order are checked. Under the heading "ARRAIGNMENT-VOP," a box labeled "Sub in" is checked, with the name "Greg Morris" handwritten in the blank following the box. Below that, under the heading "MOTIONS," a box labeled "Granted" is checked, with the following handwritten text next to it: "Mr. Morris requests a cont on the motion to file a sub into case." That motion was never filed, for two days later, on June 24, Morris was no longer eligible to practice law. His membership in the state bar was suspended in advance of disciplinary proceedings that would ultimately end in his disbarment for misappropriation of client funds.

         At a June 30 hearing, the trial court informed Tamplin that Morris had been suspended from practice and could not represent him. The court asked Tamplin how he wished to proceed. Tamplin immediately responded that he wished to continue to represent himself, and he completed a second waiver of counsel form.

         On July 8, the court held a hearing on Tamplin's request to continue to represent himself. The court asked Tamplin if he wished "to return to your status in representing yourself in this case." Tamplin stated that he did. The court reviewed the waiver of counsel form that Tamplin had completed on June 30 and thoroughly explained the rights that Tamplin would forfeit. Tamplin confirmed that he understood. The court stated that it would "make an additional inquiry," whether Tamplin would be prepared for trial which was still set for July 14. Tamplin replied, "Nope."

         The court then inquired as to why Tamplin wished to represent himself. Tamplin responded, "Not comfortable-I'm not comfortable with anybody that's in the public defender's office or anybody else that's been hiring [sic] me. They haven't been representing me, they haven't filed anything, they haven't done nothing that's going to help my case. I'm the only one who has filed anything and I'm the only one that has done anything that is going to help my case. Everybody else has done nothing." The court pointed out that Tamplin had hired his own attorney. Tamplin explained that he had attempted to hire a private attorney because "that's what I felt I needed to do at the time." Now that it turned out that Morris, whom Tamplin had already paid, was not available, Tamplin explained that he felt that he was "going to give myself the best representation without feeling like I didn't do everything that I could to fight for me."

         The court again asked Tamplin why he attempted to retain a private attorney. Tamplin responded, "I hired an attorney at that time . . . because I was able to come up with the funds, but also he had insight on my case and he-he had something that I felt that I really couldn't do at the time and I was like well-actually, he was supposed to be co-counsel . . . . [H]e was supposed to make the objections or the things that I didn't actually catch and follow as far as following the Rules of Court, that's what was supposed to be going on . . . ." After a further exchange, Tamplin reiterated, "I'm representing me now." The court confirmed that Tamplin would not be ready for trial in six days. Tamplin stated that he would not, because he needed to file more pretrial motions.

         The court then held that Tamplin would not be allowed to represent himself. It stated, "In this case, given that he desired counsel less than three weeks ago and hired counsel to assist him, the court need not make any inquiry other than that, or delve any further as to those reasons why he wanted counsel, but obviously he wanted counsel to do things he could not do at trial . . . ." The court stated that it would not permit Tamplin to proceed pro se, "finding that the timeliness is a substantial factor, along with the equivocalness and that the court finds that it is an equivocal demand based on that request for counsel and hiring of counsel on June the 22nd, 2005." Tamplin responded, "[Y]ou're going to violate my due process rights which you just did and by denying my pro per status, which is-I'm granted by law, and you're doing it-" The court cut him off: "You don't know the law sir." Tamplin replied, "I don't have to know it that much to know that you are violating my due process rights, what you're doing now."

         The court gave Tamplin the choice to hire his own attorney or to accept a public defender. Tamplin stated, "I told you I don't want no public defender, none of the ones that you are going to appoint. It is going to be a conflict." The court asked if Tamplin could...

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