Opinion
No. C 01-407 SI (pr)
June 26, 2002
ORDER DENYING PETITIONER'S WRIT OF HABEAS CORPUS
This matter is now before the court for consideration of the merits of Lawrence Alan Marshall's pro se petition for writ of habeas corpus concerning his 1997 conviction in the Sonoma County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
At Marshall's trial, the prosecution presented evidence that between August and October of 1995, and in March of 1996, Marshall possessed and transported methamphetamine and engaged in numerous methamphetamine sales ranging in price from $680 to $3200. Marshall concedes that his convictions were fully supported by the evidence, including eyewitness police testimony and tape recordings of Marshall's conversations with an undercover officer arranging unlawful sales of methamphetamine. Petition, attachment, pp. 1, 5. Marshall's defense at trial was that he was assisting the authorities in an undercover operation. Marshall concedes that this defense was uncorroborated by the evidence, and that observed conduct, police testimony, and police recordings of Marshall's telephone conversations overwhelmingly disproved his defense theory. Petition, attachment, p. 23.
Following the jury trial, Marshall was convicted of multiple counts of transporting methamphetamine, transporting methamphetamine for sale, selling methamphetamine, and possessing ephedrine with intent to manufacture methamphetamine. See Cal. Health Safety Code §§ 11378, 11379. After trial, Marshall's new trial motion was denied, and Marshall was sentenced to 16 years in state prison. With the assistance of counsel, Marshall filed an appeal and a state petition for writ of habeas corpus. The California Court of Appeal affirmed his conviction. The California Supreme Court denied review in 2000.
Marshall then filed this action, seeking a federal writ of habeas corpus. Marshall asserts three claims in his habeas petition. First, he contends that his right to effective assistance of counsel was violated when counsel committed numerous errors in his representation. Second, Marshall argues that his counsel was ineffective in failing to seek a hearing on Marshall's competence, and that the trial court erred in failing to conduct such a hearing on its own initiative. Third, Marshall contends that his right to counsel was violated when the trial court summarily denied his request to substitute counsel without any inquiry into the motion. This Court issued an Order to Show Cause on March 16, 2001. Respondent filed an answer and Marshall filed a traverse.
JURISDICTION AND VENUE
This court has subject matter jurisdiction over this habeas action for relief under 28 U.S.C. § 2254. This action is in the proper venue because the challenged conviction occurred in Sonoma County, California, which is located within this judicial district. 28 U.S.C. § 2241 (d).
EXHAUSTION
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust their state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254 (b)(2) (court may deny relief on an unexhausted claim). Marshall exhausted his state court remedies before filing this action.
LEGAL STANDARD
A petition for a writ of habeas corpus may be granted "on behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws and treaties of the United States." 28 U.S.C. § 2254 (a). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to this petition for habeas corpus, because it was filed after the AEDPA's effective date of April 24, 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). In relevant part, 28 U.S.C. § 2254, as amended by AEDPA, states:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
(e)(1) In a proceeding instituted by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court, a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.
U.S.C. § 2254(d)-(e)(1); see Williams v. Taylor, 529 U.S. 362 (2000).
DISCUSSION
A. Ineffective Assistance of Counsel
Marshall contends that his counsel provided ineffective assistance in that counsel did not pursue a credible defense, failed to adequately conduct pre-trial discovery, and did not make reasonable efforts to negotiate a plea bargain. He also alleges that counsel failed to request a competency hearing — a claim that is discussed in Section B, below. The adequacy of trial counsel's performance was explored at length at the hearing on Marshall's motion for a new trial based on ineffective assistance of counsel.
1. State Court Proceedings
a. Failure to Adequately Pursue a Plea Bargain
Marshall first contends that counsel failed adequately to pursue a plea bargain, and did not inform Marshall of the available plea bargain. Pet. at 27. Marshall's trial counsel, experienced defense attorney L. Stephen Turer, testified at the hearing on the motion for new trial that he repeatedly encouraged Marshall to accept the 8-year plea bargain offered by the prosecution, which Turer deemed "very reasonable" given the evidence against Marshall. RT 1704-05. Turer continued to recommend the plea bargain up through and including voir dire. Turer testified that "[Marshall] rejected the thought of a plea bargain because he kept insisting that he was not guilty and he couldn't plead to anything." U. at 1680. The District Attorney testified that an offer in the handwriting of the chief deputy exists in the file, corroborating Turer's testimony.
The Court of Appeal observed that at the new trial hearing, Marshall never challenged or refuted prior counsel's testimony that Marshall had repeatedly refused the proffered plea bargain, although Marshall did submit his own declaration in support of his state habeas petition. Id. at 7.
The court summarized:
Thus, based on our independent review of the record in these proceedings, we find that Marshall has completely failed to substantiate his assertion that his counsel was deficient in failing to communicate the plea agreement to him or that his counsel rendered incompetent advice during the decision-making process, causing him to reject the plea agreement. . . . [T]he record before us unequivocally demonstrates that Marshall's decision to reject the plea offer was motivated primarily by a persistent, strong, and informed hope for exoneration at trial. . . ." [citation omitted].
Id. The court noted that it could "consider Marshall's trial stance and testimony when evaluating his claim that he would have accepted a plea bargain if properly advised. [citation omitted]." The court continued, ". . . nothing in the trial record independently corroborates [Marshall's assertion that he never knew of the DA's plea offer] or even indicates that this assertion was ever made prior to the habeas corpus proceeding." Id. at 6-7.
b. Non-Credible Defense Theory
Marshall also argues attorney Turer should not have allowed the case to go to trial using a defense theory that was not credible (i.e., that Marshall was working in an undercover operation for the narcotics unit and was entrapped). Turer's alleged ineffectiveness was the subject of a motion for new trial. Turer testified at the hearing on the motion for new trial that Marshall insisted on taking the case to trial, despite Turer's skepticism about the success of Marshall's defense theory. Turer testified that Marshall insisted on going to trial "regardless of [Turer's] evaluation of the tapes, regardless of [Turer's] evaluation of the evidence against him, regardless of [Turer's] evaluation of the witnesses that [Marshall] brought forth to testify in support of his defense." RT 1690. In denying the motion for a new trial, the trial judge stated, "In my mind, from what I could observe during the course of the trial and the relationship to Mr. Turer and Mr. Marshall, it appeared to me that in some respects the defendant was attempting to manipulate the proceedings to his own end by coming up with the strategy he came up with, in terms of attempting to alleviate or relieve counsel, seeking to maybe buy some time or to have a mistrial declared . . . ." The trial judge thought the evidence of guilt was "overwhelming." RT 1730. The California Court of Appeal stated:
When an accused "insists on a course of action despite his counsel's contrary warning and advice, he may not later complain that his counsel provided ineffective assistance by complying with his wishes." of such fundamental importance is the right to testify on one's own behalf that a defendant who timely demands to take the stand — even if contrary to counsel's advice — has the right to give an exposition of his or her defense to a jury. In the final analysis, the defendant's insistence upon testifying may be harmful, but the right is of such importance that every defendant should have it in a criminal case.
Cal. Ct. App. Op. at 10 (citation omitted).
c. Failure to Pick up Tapes Before Trial
Marshall contends that counsel was inadequate in that he failed to pick up police tape recordings of Marshall's telephone conversations and drug transactions, tapes which "were fatal" to Marshall's defense. Pet. at 23. At the new trial hearing, Turer testified that when Marshall actually heard the tapes during the trial, it did not affect his adamancy in his innocence or his insistent refusal of a plea bargain. RT 1691. Counsel had accurate written summaries of the tapes, so he knew their contents, even if he did not actually listen to the tapes before trial.
The California Court of Appeal found that Marshall failed to show prejudice. Given the facts presented, Marshall did not show a reasonable probability that a more favorable outcome would have resulted if counsel had obtained the tapes before trial. Cal. Ct. App. Op. at 9.
2. Analysis of Federal Claim
The Sixth Amendment to the U.S. Constitution guarantees not only assistance, but effective assistance, of counsel. See Strickland v. Washington, 466 U.S. 668, 686 (1984). The purpose of the right is to ensure a fair trial, and the benchmark for judging any claim of ineffectiveness is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Id. To prevail on an ineffective assistance of counsel claim, a habeas petitioner must show that (1) counsel's performance was "deficient," i.e., his "representation fell below an objective standard of reasonableness" under prevailing professional norms, id. at 687-88; and (2) prejudice flowed from counsel's performance, i.e., that there is reasonable probability that, but for counsel's errors, the results of the proceedings would have been different. See id. at 691-94. The relevant inquiry under Strickland is not what defense counsel could have done, but rather whether his choices were reasonable. See Babbit v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998).
a. Failure to Adequately Pursue a Plea Bargain
Counsel's failure to advise his client that the government has made a plea offer may constitute ineffective assistance of counsel. United States v. Blaylock, 20 F.3d 1458 (9th Cir. 1994). For reasons described in part (A)(1)(a) above, Marshall failed to support his claim that counsel did not inform him of the offer. Both his counsel and the trial judge stated that they believed Marshall was acting under the belief that he could confuse the jury and influence the outcome of the trial. Marshall has failed to present clear and convincing evidence to rebut the trial and appellate courts' factual determinations that Marshall himself insisted on going to trial under a questionable defense theory and refused to accept a plea bargain of which he was made aware. See 28 U.S.C. § 2254 (d)(2) and (e)(l). He is not entitled to the writ on this claim because he has not shown deficient performance by counsel.
b. Non-Credible Defense Theory
Counsel's failure to prevent Marshall from presenting his desired defense at trial was not deficient performance. "The competence of a lawyer's tactical and strategic decision . . . is entitled to an additional measure of deference if he acts in conformity with the client's wishes." Summerlin v. Stewart, 267 F.3d 926, 948 (9th Cir. 2001) (holding that defense counsel's decision at the behest of his client to present a psychological evaluation during the penalty phase regarding the client's history of mental abuse and mental illness, without the support of testimony from the psychologist, did not constitute deficient performance); See also Langford v. Day, 110 F.3d 1380, 1386-88 (9th Cir. 1997) (failure to investigate a defense not ineffective assistance where it was due to the defendant informing attorney of relevant facts and insistence on a particular course of action). Here, counsel repeatedly expressed his reservations about Marshall's defense and presented the defense theory only upon Marshall's insistence. Marshall is not entitled to the writ on this claim.
c. Failure to Pick up Tapes Before Trial
Counsel's failure to pick up the police recordings of Marshall's phone activity does not constitute ineffective assistance. Negligence in conducting pretrial investigation can form the basis of a claim of ineffective assistance, see United States v. Tucker, 716 F.2d 576 (9th Cir. 1983), and counsel must, at a minimum, conduct a reasonable investigation enabling him to make informed decisions about how to represent his client. Sanders v. Ratelle, 21 F.3d 1446, 1457 (9th Cir. 1994). Here, summaries of the tape recordings were available in the police reports, and counsel made a strategic decision not to seek the tapes. He explained at the new trial hearing, "The People had not provided any transcriptions of any of those tapes and did not indicate as a result that they were intending to produce them or use them at trial, and it was my understanding under the law that were they not to submit transcripts prior to the trial that there could be a motion to prevent them from using those tapes." RT 1686. Counsel testified he did not request the tapes so as not to put the prosecution on notice that they had not yet transcribed the tapes. Even though he did not listen to the tapes before trial, he knew their contents from the police summaries. Counsel's decision here to attempt to cause the tapes to be excluded from evidence was a legitimate strategy and was based on counsel's knowledge of the contents of the phone calls from the police report. Moreover, Marshall failed to show that counsel's failure to pick up the tapes caused prejudice. The evidence against Marshall was overwhelming, and Marshall has failed to show that had counsel picked up the tapes before trial, there is a reasonable probability that the result of the proceedings would have been different.
B. Competence Hearing in Trial Court
Marshall contends that his counsel and the trial court erred by failing to seek and order a California Penal Code § 1368 hearing to determine Petitioner's competence to stand trial. Pet. at 21, 24.
1. State Court Proceedings
a. Ineffective Assistance of Counsel
Marshall claims that his counsel was ineffective due to his failure to seek a § 1368 hearing and to seek expert opinion about his client's mental state. Marshall argues that he was addicted to methamphetamine before and during the trial. In support of these claims, he submits the declaration of a clinical psychologist, Dr. John Podboy. Dr. Podboy stated that based on Marshall's description of his drug use during trial, it "would appear as though Mr. Marshall was extremely toxic during the course of the trial." Dr. Podboy based this evaluation on Marshall's statements that he was unable to sleep at night because he was using methamphetamine nasally, and Marshall's statements that he had not slept for two to three days at the time of his testimony. CT 398. Marshall also submits evidence from police reports confirming petitioner's drug abuse at the time of the arrest. U. at 18. Finally, Marshall cites instances during trial of confusion, inability to sleep, and unusual behavior. Id. at 17-18. This behavior included Marshall's "dumpster diving," assembling and disassembling cars, making exaggerated claims about statewide drug sources, and getting lost going to and from the courthouse. See id.
At the new trial hearing, defense counsel Turer testified, "I didn't believe Mr. Marshall was incompetent as a matter of law. He knew the nature of the proceedings. He was very clear and he knew exactly what was going on and how the process worked." Additionally, Turer testified that he considered seeking a § 1368 motion as a strategic tactic but decided against it. He did so based on his belief that if a hearing was sought, the court would have ordered Marshall into custody during the pendency of the § 1368 proceedings which ultimately would be decided against him. Turer stated, "I thought it would be more prejudicial to make the motion at that point than any benefit that could be gained from it." RT 1671-72. Additionally, Turer testified that, "As far as I knew, whenever I spoke with Mr. Marshall, and discussed his case and discussed his defense, he did not appear to me to be under the influence of drugs. . . . He's never indicated to me that he had been using drugs. In fact, I think quite to the contrary. He would deny it, if it was even asked." RT 1675.
The Court of Appeal held, "Counsel's failure to request a Penal Code section 1368 competency hearing was an informed tactical decision that was reasonable under the circumstances and to which deference must be accorded." Cal. Ct. App. Op. at 12.
b. Competency Hearing
Marshall also alleges that the trial court should have conducted a competency hearing on its own initiative. The Court of Appeal found that "[n]othing on the record suggests Marshall was incompetent to stand trial, and he has not come forward with any evidence, which might support such a claim." Id. The court noted that Marshall's live-in girlfriend of 12 years testified at trial that she was "positive" that Marshall was not using drugs. The Court of Appeal held that Marshall had failed to show how his drug addiction would have changed the outcome of the case, and found the possibility too speculative to suggest that a different outcome should have occurred. U.
William Alvarez, a psychologist who interviewed Marshall after trial, did not opine that Marshall was incompetent to stand trial. Dr. Alvarez noted Marshall's drug problem, as well as his low grade depression, and manifestation of signs associated with a post-traumatic stress disorder. Dr. Alvarez thought that Marshall would make a good candidate for a residential drug rehabilitation program; he did not mention the need for any treatment to restore his competency. Petition, Exh. B.
The Court of Appeal found that none of the evidence of incompetence submitted by Marshall established prejudice. "[N]either opinion [of Dr. Podboy or Dr. Alvarez] indicates that Marshall suffered a mental disordered that rendered him `unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense in a rational manner . . .'. Consequently, Marshall has failed to persuade us there is a reasonable probability he would have been found not competent, by virtue of mental impairment, to stand trial." Cal. Ct. App. Op. at 12 (citation omitted).
2. Analysis of Federal Claim
"It is well established that the Due Process Clause of the Fourteenth Amendment prohibits the criminal prosecution of a defendant who is not competent to stand trial." Medina v. California, 505 U.S. 437, 439 (1992) (citing Drope v. Missouri, 420 U.S. 162 (1975), and Pate v. Robinson, 383 U.S. 375, 378 (1966)); see Cacoperdo v. Demosthenes, 37 F.3d 504, 510 (9th Cir. 1994); cert. denied, 514 U.S. 1026 (1995). "The test for competency to stand trial is whether the defendant "has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him." Boag v. Raines, 769 F.2d 1341, 1343 (9th Cir. 1985), cert. denied,, 474 U.S. 1085 (1986) (quoting Dusky v. United States, 362 U.S. 402, 402 (1960)). Due process requires a trial court to order a psychiatric evaluation or conduct a competency hearing if the court has a good faith doubt concerning the defendant's competence.
A good faith doubt about a defendant's competence arises only if there is substantial evidence of incompetence. See Cacoperdo, 337 F.3d at 510. In Hernandez v. Ylst, 930 F.2d 714, 718 (1991), the Ninth Circuit held that where the trial judge and defense counsel had the opportunity to converse with defendant and observe his behavior, concluded defendant's competence was not in serious doubt, and nothing in the nature of his crime suggested incompetence, the failure to hold a competency hearing was not a constitutional violation.
a. Ineffective Assistance of Counsel
Here, counsel testified that he considered seeking a competency hearing but, based upon Marshall's demeanor and explicit denials of drug use, decided against it for tactical reasons. While the opinion of defendant's counsel with respect to defendant's competency to stand trial is not determinative, defendant's counsel is in the best position to evaluate the client's comprehension of the proceedings. U. An attorney for Marshall's co-defendant submitted a declaration made after trial that he thought, in retrospect, that the "trial court could have granted him a hearing on mental competency," even though at the time of trial Marshall's "counsel and I discussed the possibility of initiating Penal Code § 1368 proceedings but we thought that at that time he would probably be found competent." Petition, Exh. C. This declaration is from someone who has no medical or mental health training and is therefore of limited usefulness on the question of competency. The declaration says little of value to Marshall: the attorney admits that at the time of trial he too thought Marshall competent and that Marshall could have had a hearing (but does not venture what the result of that hearing should have been). Counsel's determination that Marshall likely would not be found incompetent, and his subsequent strategic decision not to seek a § 1368 hearing in order to keep his client out of custody did not amount to deficient performance. Moreover, Marshall has not shown prejudice resulting from counsel's actions; as discussed below, a competency hearing was not necessary under the circumstances.
b. Competency Hearing
The trial judge felt Marshall was competent and attributed his apparently illogical behavior to an attempt to manipulate the outcome of the trial. The trial court's decision not to hold a competency hearing is preferably viewed as a factual determination, i.e., habeas relief is available if the trial court's decision that the evidence did not require a competency hearing was "an unreasonable determination of the facts in light of the evidence presented" in state court. See Torres, 223 F.3d at 1107; 28 U.S.C. § 2254 (d)(2). This Court may not grant relief if it merely concludes that petitioner "`has the better of two reasonable . . . arguments' but only if [the court is] left with "a `firm conviction'" that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Torres, 223 F.3d at 1108 (quoting Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir. 2000)).
A defendant's behavior must be extreme to require a sua sponte competency hearing. See Drope, 420 U.S. at 177-180 (trial court required to hold competency hearing when presented with testimony by defendant's wife of defendant's history of irrational behavior, including testimony that he tried to choke her shortly before trial, and petitioner's attempted suicide by shooting himself in the stomach during trial); Boag, 769 F.2d at 1343 (five attempted suicides in the dozen years before trial, repeated head injuries, a story of bizarre behavior, and defendant's alcoholism did not raise a substantial doubt as to defendant's competency). Marshall's irregular behavior and drug problem did not begin to approach the extreme behavior necessary to trigger a duty to hold a competency hearing. The trial court's conclusion that Marshall's behavior was not sufficiently bizarre to merit a competency hearing was a reasonable determination of the facts. Habeas relief is not warranted.
C. Substitution of Counsel
Petitioner argues that the trial court violated his right to due process and his Sixth Amendment right to counsel by denying his request to substitute counsel.
1. State Court Proceedings
Marshall claims that the trial court summarily rejected his motion to substitute his privately retained counsel and that the court violated its duty to inquire as to the reasons for the substitution request. Pet. at 36, 40. Marshall also asserts that the trial court "threatened petitioner with incarceration" for making his motion to substitute counsel. Pet. at 37, 42. Marshall presented his request to substitute counsel on the seventh day of jury trial. Marshall submitted a letter to the court in which he requested a "mistrial or suspension of the proceedings," and stated that the new counsel he had retained would need one to two weeks to prepare for the trial. Pet. at 38-39. The letter stated that Marshall's reason for seeking new counsel was that his attorney was not pursuing "a vigorous defense and examination of the evidence." The letter stated, "I respectfully wish to address the court out of the presence of the jury to request a mistrial or suspension of the proceedings, in order to retain competent legal counsel." Id. Marshall also presented to the court his letter discharging his attorney. That letter specifies counsel's alleged failings, i.e., counsel (1) was neglectful in that he missed discovery deadlines and failed to file motions they discussed, (2) breached a duty of confidence by passing confidential information "to others," (3) was incompetent in repeated errors such as failing to file papers on time, failing to be prepared for hearings and trial, failure to be familiar with important details, and (4) had a conflict of interest in that counsel claimed the trial of this case interfered with his opportunity to make money elsewhere. Pet., Exh. H.
The trial court found that the case "ha[d] been delayed long enough," and told Marshall that if he could find someone to represent him immediately, the court would consider the motion, but that it would not allow further delay. The court told Marshall, "I'm thinking, certainly, of remanding the defendant into custody if we're playing games like this at this point in trial. I'm concerned about whether he's stable enough to show up." RT 669-70. The next morning, Marshall appeared with original trial counsel and personally acknowledged that he and counsel were "back on track" and withdrew the letters. RT 857. Marshall voiced no other complaint or dissatisfaction with counsel during the remainder of the trial. Resp. Exh. G at 14.
The California Court of Appeal found no error in the trial court's direction that counsel could not be substituted unless it caused no delay. Resp. Exh. G at 15. The court found that the trial court was "entitled to rely on Marshall's comments indicating that his disagreements with his trial counsel had been resolved and that he was withdrawing his earlier request that counsel be discharged." The court found no validity in the implicit argument that Marshall had been coerced into making this statement. Id.
2. Analysis of Federal Claim
The Sixth Amendment grants criminal defendants who can afford to retain counsel a qualified right to hire counsel of their choice. See Wheat v. United States, 486 U.S. 153, 159, 164 (1988); United States v. Washington, 797 F.2d 1461, 1464 (9th Cir. 1986). This right is qualified in that it "may be overcome by even `a showing of a serious potential for conflict'" or if the proposed choice will interfere with the integrity of the proceeding. United States v. States, 56 F.3d 1020, 1024, 1026 (9th Cir. 1995) (citation omitted).
When a defendant voices a seemingly substantial complaint about counsel, the trial judge should make a thorough inquiry into the reasons for the defendant's dissatisfaction. United States v. Robinson, 913 F.2d 712, 716 (9th Cir. 1990), cert. denied, 498 U.S ll04 (1991); Hudson v. Rushen, 686 F.2d 826, 829 (9th Cir. 1982), cert. denied, 461 U.S. 916 (1983). However, the inquiry need only be as comprehensive as the circumstances reasonably permit. See King v. Rowland, 977 F.2d 1354, 1357 (9th Cir. 1992) (record may demonstrate that extensive inquiry was not necessary).
Here, the trial court was aware of the reasons for Marshall's dissatisfaction and reasonably interpreted Marshall's motion to be a tactic designed to cause delay or lead to mistrial. This conclusion was reasonably drawn from Marshall's own letter, which stated that Marshall hoped to receive a "mistrial or suspension of the proceedings," and which stated that new counsel "needs one or two week(s) to prepare." See Petition at 38-39. Additionally, the court had explicit knowledge of Marshall's complaints because it had received a copy of Marshall's letter discharging his attorney, and could evaluate the validity of these claims. Moreover, the trial judge's decision must be viewed within the context of the delay and gaming which permeated the trial. Marshall concedes his defense at trial was frivolous and alienated the jury. See id, ¶¶ 45-46. Even he thinks it was a "preposterous ill-advised defense of `police agency.'" The judge was not immune from the effects of listening to the admittedly preposterous defense, which perhaps explains the irritation that led him to perceive as game-playing Marshall's request on the seventh day of trial. See RT 1730.
Broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable request for delay" violates the right to the assistance of counsel. Ungar v. Sarafite, 376 U.S. 575, 589 (1964). Here, the court's refusal to allow a substitution was based on a combination of the court's need to keep the trial moving, the effect a continuance would have on the jurors and the court's schedule, and, most importantly, the court's perception that the substitution was sought only to be disruptive and manipulative. The court was prepared to allow substitution if it caused no delay. The court's "threat" to Marshall required that he stop the "game-playing." It does not appear that the court was unwilling to redress a genuine problem with Marshall's representation.
Additionally, the Sixth Amendment does not guarantee a "meaningful relationship" between the accused and his counsel. Morris v. Slappy, 461 U.S. 1, 14 (1983). Marshall must show that his constitutional rights were actually violated because the conflict between petitioner and attorney had become so great that "it resulted in a total lack of communication or other significant impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Shell v. Witek, 218 F.3d 1017, 1026 (9th Cir. 2000) (en banc). Here, Marshall's withdrawal of his claim and statement that the trial was "back on track" suggest that the conflict was not so great as to violate his constitutional rights.
The state court's rejection of the right-to-counsel claim was not contrary to or an unreasonable application of clearly established federal law. Marshall is not entitled to a writ on this claim.
CONCLUSION
For the foregoing reasons, the Court DENIES Marshall's petition for writ of habeas corpus. Petitioner's motion for relief from his failure to timely file his traverse is GRANTED. [Docket #20]. The court has considered his traverse in ruling on the merits of his petition. The clerk shall close the file.