FILED

NOT FOR PUBLICATION NOV 19 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHARLES B. FAULTRY, No. 14-15841

Petitioner - Appellant, D.C. No. 4:12-cv-03379-PJH

v.

MEMORANDUM*

K. ALLISON, Associate Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Phyllis J. Hamilton, Chief District Judge, Presiding

Argued and Submitted May 13, 2015 San Francisco, California

Before: KOZINSKI, PAEZ, and CLIFTON, Circuit Judges.

Charles Faultry, a California state prisoner, appeals the district court’s denial

of his habeas petition. We affirm. We have previously concluded that Faretta v.

California, 422 U.S. 806 (1975), “clearly established some timing element,”

though “we still do not know the precise contours of that element.” Marshall v.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005). “At most, we know that Faretta

requests made ‘weeks before trial’ are timely.” Id.; see also Moore v. Calderon,

108 F.3d 261, 265 (9th Cir. 1997).

To obtain relief, Faultry must do more than merely demonstrate that the state

court decision he challenges was in tension with our interpretation of Faretta’s

holding. He must demonstrate that the state court decision “was contrary to, or

involved an unreasonable application of,” Faretta. 28 U.S.C. § 2254(d)(1). As we

have observed, “Faretta does not articulate a specific time frame pursuant to which

a claim for self-representation qualifies as timely,” Stenson v. Lambert, 504 F.3d

873, 884 (9th Cir. 2007), nor does it preclude a consideration of factors other than

the number of weeks before trial a self-representation motion was made.

We conclude that Faultry has not established that the state court decision he

challenges was in “direct and irreconcilable conflict with Supreme Court

precedent,” Murray v. Schriro, 745 F.3d 984, 997 (9th Cir. 2014), nor has he

shown “that the state court’s ruling . . . was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

2 possibility for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770,

786–87 (2011).1

We decline to expand the certificate of appealability. “Habeas claims . . .

not raised before the district court in the petition are not cognizable on appeal,”

Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009) (internal quotation

marks omitted), and the “narrow exceptions” to this general rule do not apply here.

Id.

AFFIRMED.

1 Neither Marshall, 395 F.3d at 1060–61, nor Moore, 108 F.3d at 265, compels a contrary conclusion. In Marshall, the motion was clearly untimely even under a “weeks before trial” standard, so we did not consider the circumstances under which a state court acts contrary to or unreasonably applies Faretta. Although we did grant relief in Moore, that case—which involved a habeas petition that was filed prior to AEDPA’s effective date, and which was analyzed under both the pre- and post-AEDPA versions of 28 U.S.C. § 2254(d)—applied an AEDPA framework that the Supreme Court subsequently abrogated. See, e.g., Van Tran v. Lindsey, 212 F.3d 1143, 1149 n.9 (9th Cir. 2000) (“Moore . . . [is] no longer good law.”).

3

FILED

Faultry v. Allison, No. 14-15841 NOV 19 2015

MOLLY C. DWYER, CLERK

PAEZ, Circuit Judge, dissenting U.S. COURT OF APPEALS

I respectfully dissent. I agree with the majority that we have recognized that

“Faretta ‘clearly established’ that a self-representation motion made ‘weeks before

trial’ is timely.” Mem. at 1-2. I would hold, however, that because Faultry made

his request for self-representation weeks before trial, and because there is no

dispute that Faultry’s request was “knowing and intelligent,” the state court’s

determination was contrary to Faretta’s timeliness rule. I am guided in that

conclusion by Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997), which I believe is

controlling here. There, we recognized that the relevant facts were “identical to

those in Faretta. Like Faretta, Moore made his request ‘weeks before trial.’” Id. at

265. After noting that “[i]t is undisputed that Moore’s waiver of his right to

counsel was knowing and intelligent,” we held that “[b]y failing to grant Moore’s

timely request, the trial court abridged Moore’s right to self-representation under

the Sixth Amendment.” Id.

The majority ignores Moore’s Faretta analysis because, it explains, we

granted habeas relief under an AEDPA framework that the Supreme Court later

abrogated in Williams v. Taylor, 529 U.S. 362 (2000). Mem. at 2 n.1. Although

the Supreme Court abrogated the distinction we had drawn between the two

standards for habeas relief in 28 U.S.C. § 2254(d)(1), there is nothing in Williams that suggests our application of the “contrary to” prong in Moore’s Faretta claim

was erroneous.

In Moore, which we decided before Williams, we analyzed the timeliness of

Moore’s Faretta request under only the “contrary to” prong of § 2254(d)(1), and

not under the “unreasonable application” prong. Moore, 108 F.3d at 265 n.3. Our

understanding at that time was that the “contrary to” language governed questions

of law, while the “unreasonable application of” language governed mixed

questions of law and fact. Id. Williams made clear that this dichotomy was

incorrect. The Court proceeded to explain that a state court decision is “contrary

to” Supreme Court precedent “if the state court arrives at a conclusion opposite to

that reached by th[e] Court on a question of law,” or if it “confronts facts that are

materially indistinguishable from a relevant Supreme Court precedent and arrives

at a result opposite to” its own. Williams, 529 U.S. at 405. We have explained

since Williams that this was the issue on which Williams abrogated Moore. See

Baker v. City of Blaine, 221 F.3d 1108, 1110 n.2 (9th Cir. 2000) (explaining that

Moore was mistaken because both “contrary to” and “unreasonable application of”

apply to both questions of law and mixed questions of law and fact following

2 Williams).1

Although the footnote in Moore explaining why we analyzed the habeas

petition under the “contrary to” prong is no longer good law, we did not err in

analyzing Moore’s habeas petition under the “contrary to” prong. See Williams,

529 U.S. at 405-06 (explaining that questions of law and factual questions may

both be analyzed under the “contrary to” prong). Further, our “contrary to”

analysis of Moore’s Faretta claim was consistent with Williams’ “contrary to”

methodology. In Moore, we explained that the facts before us were “materially

indistinguishable” from those in Faretta, but that the state court “arrive[d] at a

result opposite to” that in Faretta. Williams, 529 U.S. at 405; Moore, 108 F.3d at

265. Thus, although Williams abrogated the distinction we had drawn between the

two standards in 28 U.S.C. § 2254(d)(1), our analysis in Moore comported with

Williams’ standard for determining when a state court decision is contrary to

established Supreme Court law.

Because Williams did not abrogate Moore’s application of Faretta, we are

“bound” by its enunciation of “clearly established Supreme Court law.” Marshall

v. Taylor, 395 F.3d 1058, 1061 n.15 (9th Cir. 2005). Moore stated that it was

“contrary to” the law “clearly established by Faretta” not to grant the writ where

1 Notably, Williams does not discuss Faretta whatsoever. 3 the facts are “identical to those in Faretta.” 108 F.3d at 265. The facts that made

Moore’s situation identical to Faretta’s were that Moore made his request for self-

representation “weeks before trial,” and that there was no dispute that Moore’s

waiver was “knowing and intelligent.” Id. Under Moore, when all these facts

exist, such a request for self-representation is timely under Faretta.

Here, there is no dispute that Faultry’s waiver was knowing and intelligent.

The only question that remains is whether Moore made his request weeks before

trial. Faultry’s trial was originally scheduled for January 15, 2008. On January 16,

Faultry made his request for self-representation. At the January 16 hearing, it was

clear to the trial judge that Faultry’s trial would not begin until Faultry’s counsel

finished another trial, which had not yet started and would “probably take no more

than about two weeks.” Thereafter, the trial judge denied Faultry’s Faretta

motion. Trial did not actually begin until “almost four months later.” On this

record, which is not materially different from the circumstances in Moore, Faultry

in fact made his motion “weeks before trial.” Like Moore, who requested self-

representation days after trial had been originally scheduled but two weeks before

trial actually began, Faultry made his motion weeks before trial. See Moore, 108

F.3d at 262-63. The state court’s denial of his request was “contrary to” the

Supreme Court’s decision in Faretta.

4 For the above reasons, I would reverse the district court’s denial of habeas

relief.

5