FILED

NOT FOR PUBLICATION

OCT 7 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEREMIAH LANCE WINCHESTER, No. 19-35940

Petitioner-Appellant, D.C. No. 2:17-cv-01136-RSL

v.

MEMORANDUM*

MIKE OBENLAND, Superintendent Washington State Dept. of Corrections; ERIC JACKSON, Associate Superintendent,

Respondents-Appellees.

Appeal from the United States District Court for the Western District of Washington Robert S. Lasnik, District Judge, Presiding

Submitted September 4, 2020** Seattle, Washington

Before: BYBEE and COLLINS, Circuit Judges, and SOTO,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable James Alan Soto, United States District Judge for the District of Arizona, sitting by designation. Jeremiah Winchester appeals from a district court order denying his petition

for habeas review based upon his Sixth Amendment right to counsel of his choice.

We have jurisdiction under 28 U.S.C. § 2253. We review a district court’s

decision to deny habeas relief de novo. Ramirez v. Ryan, 937 F.3d 1230, 1240 (9th

Cir. 2019). We affirm.

The parties are aware of the facts, and we will not recite them except as

necessary for this order. Winchester brings two arguments on appeal. First, he

argues that the district court erroneously denied habeas relief because the trial

judge’s denial of his motion to substitute counsel violated his Sixth Amendment

right to counsel of his choice. Second, and alternatively, Winchester argues that

the district court erred by denying habeas relief without holding an evidentiary

hearing.

As an initial matter, the parties dispute whether we should apply the

Antiterrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of

review or whether the pre-AEDPA de novo standard governs. AEDPA’s

deferential standard only applies if the Washington Court of Appeals adjudicated

Winchester’s Sixth Amendment right-to-counsel-of-choice claim on its merits. See

Johnson v. Williams, 568 U.S. 289, 292 (2013) (28 U.S.C. § 2254(d) applies only

if the claim “has been adjudicated on the merits in State court”) (internal

2 quotations omitted); Pirtle v. Morgan, 313 F.3d 1160, 1167–68 (9th Cir. 2002)

(AEDPA’s strict standard of review may be relaxed if the state court does not

adjudicate the underlying claim on the merits). We need not resolve this question,

however, because Winchester’s arguments fail even under the pre-AEDPA

standard of review.

Under the Sixth Amendment, a criminal defendant is entitled to be

represented by the counsel of his or her choice. Wheat v. United States, 486 U.S.

153, 159 (1988). That right is not absolute, however, and a trial court enjoys “wide

latitude in balancing the right to counsel of choice . . . against the demands of its

calendar.” United States v. Gonzalez-Lopez, 548 U.S. 140, 152 (2006) (citing

Morris v. Slappy, 461 U.S. 1, 11–12 (1983)). This balancing of “the defendant’s

reason for requesting substitution against the scheduling demands of the court”

may entail a consideration of any “[c]onflict between the defendant and his

attorney” where, as here, such conflicts are a stated reason for requesting

substitution. United States v. Rivera-Corona, 618 F.3d 976, 980 (9th Cir. 2010).

In such circumstances, it is appropriate to consider the same three factors that

guide the trial judge’s discretion in any substitution-of-counsel case: (1) the

timeliness of the defendant’s motion; (2) the adequacy of the trial judge’s inquiry

3 into the defendant’s complaints; and (3) the extent of the attorney-client conflict.

United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986).

Winchester argues that the trial judge failed to adequately inquire into his

counsel-related complaints because the judge did not affirmatively ask whether

Winchester intended to retain counsel or receive different appointed counsel.

However, the Sixth Amendment does not impose such a duty on a trial judge. It

only requires the judge to evaluate the defendant’s complaints and reach an

informed decision. See id. Here, the trial judge considered each of Winchester’s

complaints about his counsel before ultimately denying the motion.

Moreover, the trial judge heard Winchester’s motion to substitute counsel

for the first time on the morning of trial. At that point, a prospective jury panel

was waiting to begin jury selection, and the attorneys—including

Winchester’s—were prepared to begin. Even assuming that Winchester had

already retained counsel, “it would be extremely unlikely” that the new counsel

would have been prepared to try the case. United States v. Torres-Rodriguez, 930

F.2d 1375, 1381 (9th Cir. 1991), abrogated on other grounds by Bailey v. United

States, 516 U.S. 137 (1995). A “delay in the proceedings” would have been

virtually certain in that scenario. Id. at 1380 n.2. All the while, Winchester’s

4 appointed counsel was present and prepared to proceed. The trial judge did not

abuse his discretion by denying Winchester’s motion to substitute counsel.

Finally, Winchester is not entitled to an evidentiary hearing. To be entitled

to an evidentiary hearing, Winchester must have alleged facts that, if proven,

would entitle him to relief. Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th Cir.

2005). Even if Winchester could prove that he had retained outside counsel as he

claims, denying substitution of counsel on the morning of trial was a valid exercise

of the trial court’s discretion. Accordingly, the district court did not err in failing

to hold an evidentiary hearing.

AFFIRMED.

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