NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 26 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JERRY D. POUGH, AKA Jerry Doran No. 20-17313 Pough, AKA Jerry Duron Pough, D.C. No. Petitioner-Appellant, 3:18-cv-00191-MMD-CLB

v.

MEMORANDUM*

WILLIAM GITTERE; et al.,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted March 16, 2022 Las Vegas, Nevada

Before: KLEINFELD, D.M. FISHER,** and BENNETT, Circuit Judges.

Jerry Pough Sr. appeals from the dismissal of his petition for a writ of

habeas corpus by the U.S. District Court for the District of Nevada. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable D. Michael Fisher, United States Circuit Judge for the U.S. Court of Appeals for the Third Circuit, sitting by designation. The District Court issued a certificate of appealability for two issues:

whether Nevada violated Pough’s constitutional rights by (1) allowing him to

waive his right to counsel and represent himself, or (2) allowing him to dismiss

counsel without appointing replacement counsel.

On the first issue, Pough argues that the Nevada Supreme Court’s conflated

the standard for competency to stand trial under Dusky v. United States, 362 U.S.

402 (1960) (per curiam), with the standard for a valid waiver of the right to counsel

under Faretta v. California, 422 U.S. 806 (1975). In particular, he argues that, after

he was deemed competent, the Justice Court and Nevada District Court “rubber-

stamped” his request to represent himself without adequately inquiring into

whether his waiver was knowing and voluntary, and for this reason the Nevada

Supreme Court erred in holding there was no constitutional violation. Under the

Antiterrorism and Effective Death Penalty Act, we are not to issue a writ of habeas

corpus unless the Nevada Supreme Court’s decision “was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

Pough cannot overcome this exacting standard. The Justice Court and

Nevada District Court covered much of the same ground: whether Pough

understood that he would need to follow court rules and procedures, that the court

would not aid him in his defense, that the State’s attorneys would have an

2 advantage over him due to their superior training and expertise, and more. In short,

the canvasses conducted by the Nevada Justice Court and District Court were

thorough and ensured Pough was waiving his right to counsel “with [his] eyes

open” to the risks of self-representation at trial. Iowa v. Tovar, 541 U.S. 77, 88

(2004) (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279

(1942)). Moreover, the Nevada Supreme Court applied the correct standard that a

waiver of the right to counsel is constitutional so long as it is knowing and

voluntary. To be sure, its decision cites Nevada caselaw,1 which in turn cites to the

controlling Supreme Court precedent, Faretta, 422 U.S. at 835-36. But the U.S.

Supreme Court has held that this approach is not problematic—indeed, “a state

court need not cite or even be aware of our cases under [AEDPA].” Harrington v.

Richter, 562 U.S. 86, 98 (2011). The Nevada Supreme Court decision was not

contrary to federal law as determined by the Supreme Court of the United States.

Pough further argues that the Nevada Supreme Court’s decision concerning

the validity of his waiver of counsel was based on unreasonable factual

determinations. See 28 U.S.C. § 2254(d)(2). Specifically, Pough argues the Nevada

trial court erred because it had incomplete information about his history of

schizophrenia and the Nevada Supreme Court unreasonably deferred to the trial

court. 3 Although Pough’s competency was in question during pre-trial proceedings,

he was deemed competent to stand trial immediately before each of his Faretta

canvasses. Once Pough was deemed competent, the Constitution permits him to

represent himself so long as his waiver was knowing and voluntary and he was

informed of the dangers of self-representation at trial. Tovar, 541 U.S. at 88-89;

Godinez v. Moran, 509 U.S. 389, 400-01 (1993). As discussed above, this standard

was met here. The Nevada Supreme Court reviewed the entire record, including

Pough’s history of schizophrenia, and determined that “[n]othing in the record

suggests that Pough’s mental illness kept him from understanding the risks of self-

representation or otherwise making a knowing, voluntary, and intelligent

decision.” The Nevada Supreme Court decision was thus not based on

unreasonable factual determinations.

On the second issue, Pough argues that the Supreme Court’s holding in

McCoy v. Louisiana, 138 S. Ct. 1500 (2018), instructs that substitute counsel

should have been appointed based on his conflict with appointed counsel over trial

strategy. Pough’s case, however, is readily distinguishable from McCoy. There, a

trial court allowed defense counsel, over the defendant’s objection, to tell the jury

that the defendant committed three murders in the hope that the jury would spare

the defendant the death penalty. McCoy, 138 S. Ct. at 1505. Here, Pough invoked

his constitutional right to self-representation and conducted his own defense at

4 trial, where he maintained his innocence. Pough’s counsel therefore did not

interfere with his right to maintain his innocence at trial in violation of his Sixth

Amendment rights.

AFFIRMED.

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