Baker

Opinion by Judge O’SCANNLAIN; Dissent by Judge CANBY.

We must decide whether a state court’s decision that a defendant was not denied his Sixth Amendment right to counsel is contrary to clearly established federal law.

I

On July 17, 1993, Ronald M. Baker was arrested on charges of driving without a valid operator’s license (“DVOL”), driving under the influence of alcohol (“DUI”), and obstructing a public officer in Blaine, Washington. He pleaded guilty to the DVOL charge and was convicted of the other two by jury trial, at which he represented himself. He appealed his convictions (but not his guilty plea) through the *1140 Washington state court system, claiming that the court denied him his Sixth Amendment right to counsel at the arraignment and that he had not validly waived his right to counsel at his subsequent jury trial. He lost at all levels. He then filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 in the district court and alleged that he had been denied his right to counsel. A magistrate recommended granting the writ, but the City of Blaine (“City”) filed objections noting discrepancies in the transcripts, and the district court dismissed Baker’s…

dissenting:

With all respect, I am unable to concur in the majority opinion and judgment. My disagreement is both procedural and substantive.

I

The procedural issue involves application of Congress’s language in AEDPA prohibiting the granting of a writ of habe-as corpus unless the state court adjudication

28 U.S.C. § 2254 (d)(1).

The majority opinion adheres to a dichotomy of review under this provision, which is set forth in a footnote in Moore v. Calderon, 108 F.3d 261 , 265 n. 3 (9th Cir.), cert. denied, 521 U.S. 1111 , 117 S.Ct. 2497 , 138 L.Ed.2d 1003 (1997). Under that formulation, “the ‘contrary to’ language governs questions of law, and the ‘unreasonable application of language governs mixed questions of law and fact.” Id. This formulation, however, was described as “dicta” in Davis v. Kramer, 167 F.3d 494 , 500 n. 7 (9th Cir.1999), pet. for cert. filed, — U.S. -, 120 S.Ct. 1001 , — L.Ed.2d - (2000), and the dichotomy was disavowed. Davis stated:

Id. at 500 (footnote omitted). Davis now stands as the law of this circuit; I therefore consider myself bound by its conclusion that the Moore reference was dictum and that no firm dichotomy is to be applied in reviewing…