Tony Asberry v. A.K. Scribner

dissenting:

I respectfully dissent.

The Supreme Court has unequivocally held that “when a defendant seeks to waive his right to counsel, a determination that he is competent to stand trial is not enough; the waiver must also be intelligent and voluntary before it can be accepted.” Godinez v. Moran, 509 U.S. 389, 402 , 113 S.Ct. 2680 , 125 L.Ed.2d 321 (1993) (emphasis added). Yet, the majority maintains that Asberry’s mental state is pertinent only to the competency inquiry. The majority then concludes, as to that inquiry, that the “the trial judge considered Asber-ry’s competency to proceed without counsel and determined that Asberry was competent to waive counsel.” Maj. op. at 676. In so ruling, the majority collapses Godi-nez’s holding — that “competency] to stand trial” and “intelligent and voluntary” waiver are two separate requirements that must both be met before a defendant can proceed to trial without counsel, 509 U.S. at 401-02 , 113 S.Ct. 2680 — into a single inquiry where any mental state question is raised. I see no basis for this merger in Godinez .

The majority, moreover, glosses over the strength of Asberry’s state court record. In assessing waiver of counsel,…

MEMORANDUM *

Petitioner Tony Asberry appeals from the district court’s judgment denying his habeas petition. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

Asberry claims that Fresno County Jail interfered with his right to counsel by refusing to provide him medication to treat his psychotic disorder. He argues that the lack of medication in turn rendered his decision to waive his right to counsel involuntary in violation of the Sixth Amendment. The California Court of Appeal denied Asberry’s habeas petition for failure to state a prima facie case for relief. See People v. Duvall, 9 Cal.4th 464 , 37 Cal.Rptr.2d 259 , 886 P.2d 1252, 1258 (1995) (“If no prima facie case for relief is stated, the court will summarily deny the petition.”). The question before us is whether, given the facts alleged by Asberry before the state court, the court’s summary rejection of his claim was, in light of the entire state court record, an unreasonable application of federal law. See Cullen v. Pinholster, — U.S. -, - n. 12, 131 S.Ct. 1388 , 1400 n. 12, 179 L.Ed.2d 557 (2011); 28 U.S.C. § 2254 (d).

Asberry has a constitutional right to waive counsel, but the waiver must be voluntary.…

FILED

NOT FOR PUBLICATION DEC 02 2011

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

TONY ASBERRY, No. 09-15141

Petitioner - Appellant, D.C. No. 1:05-cv-00871-AWI-

JMD

v.

A.K. SCRIBNER, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Anthony W. Ishii, Chief District Judge, Presiding

Argued and Submitted September 1, 2011 San Francisco, California

Before: WALLACE, BERZON, and BYBEE, Circuit Judges.

Petitioner Tony Asberry appeals from the district court’s judgment denying

his habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

Asberry claims that Fresno County Jail interfered with his right to counsel

by refusing to provide him medication to treat his psychotic disorder. He argues

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. that the lack of medication in turn rendered his decision to waive his right to

counsel…