In January, over the dissent of Judge John Owens (an Obama appointee), a Ninth Circuit panel held (in Malone v. Williams) that a convicted criminal defendant was entitled to habeas relief on his claim that he was unconstitutionally deprived of his right to represent himself. Visiting federal district judge Dean Pregerson was alone on the opinion and evidently wrote it, as Judge Johnnie Rawlinson issued a five-word opinion that merely concurred in the result.
In an order today, the Ninth Circuit denied rehearing en banc. In a forceful opinion (pp. 3-30), Judge Jay Bybee and thirteen of his colleagues (including Owens and even Clinton appointee Ronald Gould) state that “this case cries for reversal” and call for the Supreme Court to summarily reverse it. An excerpt (emphasis in original):
This should have been an easy case. A defendant has the right to represent himself, but he must invoke that right unequivocally. See Faretta v. California (1975). Clearly established federal law requires courts to “indulge in every reasonable presumption against waiver” of the right to counsel. Brewer v. Williams (1977). Malone asked for representation—repeatedly— and accused the state court of denying him the right to counsel. The right outcome could not have been more obvious.
But our panel did not apply clearly established federal law as determined by the Supreme Court. It ignored the Brewer presumption, cited Faretta once, and then relied almost exclusively on direct-appeal and pre-AEDPA Ninth Circuit cases. The decision violated AEDPA at every turn. It “was not just wrong.” Sexton v. Beaudreaux (2018). “It also committed fundamental errors that th[e Supreme] Court has repeatedly admonished courts to avoid.” Id.
Its saving grace is that it is unpublished, but that will not prevent the confusion it has sown from seeping into state courts. Uneducated and indigent defendants will bear the cost of the panel’s repudiation of the presumption in favor of appointed representation. The problem will be particularly acute in Nevada, where, because we have granted the writ in a high-profile case, the state courts will have been instructed with all the wrong answers.
Failing to enforce Brewer’s presumption gives criminal defendants a unique finality-busting tool that all but guarantees AEDPA arbitrage. Departing from the unequivocal-invocation requirement places “trial courts in a position to be whipsawed by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules.” A defendant will have the federal court end-played either way: “If the court appoints counsel, the defendant could . . . rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent himself; if the court permits self-representation, the defendant could claim he had been denied the right to counsel.” The panel decision is a get-out-of-jail-free card that flies in the face of AEDPA.
(For ease of reading, I’ve added some paragraph breaks and have simplified or omitted citations.)
In a separate statement (pp. 31-41), Pregerson, joined by Rawlinson, responds and defends the denial of en banc rehearing.