Nicole Bradley v. Gloria Henry, Warden

428 F.3d 811 Nicole BRADLEY, Petitioner-Appellant, v. Gloria HENRY, Warden, Respondent-Appellee. No. 04-15919. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 11, 2005. Filed June 22, 2005. Amended October 17, 2005. Dennis P. Riordan, San Francisco, CA, for the petitioner-appellant. Morris Beatus, Deputy Attorney General, San Francisco, CA, for the respondent-appellee. Appeal from the United States District Court for the Northern District of California; Phyllis J. Hamilton, District Judge, Presiding. D.C. No. CV-03-03034-PJH. Before: FERGUSON, NOONAN, and RYMER, Circuit Judges. ORDER 1 The opinion filed on June 22, 2005 is amended as follows: 2 413 F.3d at 962. Insert "potentially" before "capital". 3 413 F.3d at 962. At "executed", substitute comma for period and add "if the prosecutor chose to seek the death penalty." 4 413 F.3d at 967. Substitute "Potentially on" for "On". 413 F.3d at 967. Add after "palpable": 5 Until the robbery-murder special circumstance charge was dismissed, a dismissal that occurred after completion of the prosecutor's case, the prosecutor could have asked for the death penalty. Leo v. Superior Court, 179 Cal.App.3d 274 , 225…

ORDER

The opinion filed on June 22, 2005 is amended as follows:

413 F.3d at 962. Insert “potentially” before “capital”.

413 F.3d at 962. At “executed”, substitute comma for period and add “if the prosecutor chose to seek the death penalty.”

413 F.3d at 967. Substitute “Potentially on” for “On”.

413 F.3d at 967. Add after “palpable”:

413 F.3d at 967. Add the following new f:

Respondent’s petition for rehearing and for rehearing en banc remains pending.

OPINION

Nicole Bradley appeals the judgment of the district court denying her habeas corpus petition. Holding that she was denied due process of law at a critical stage in her criminal trial with harm to her ability to defend herself in a potentially capital case, we reverse the judgment of the district court.

FACTS AND PROCEEDINGS

On January 17, 1996, Bradley, 18 years old at the time, attempted a carjacking in the course of which the driver of the car was shot. On January 22, 1996, she was taken into custody and charged with attempted robbery, carjacking, possession of a short-barreled shotgun, and murder in the first degree, with special circumstances. If convicted, she could be executed, if the prosecutor chose to seek…

concurring.

I agree with the majority opinion but write separately to underscore that Bradley was not only deprived of her right to due process by being excluded from the in-camera hearing. See Kentucky v. Stincer, 482 U.S. 730, 745 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987). She was also deprived of her Sixth Amendment right to select counsel of her choice as an effect of that exclusion.

At the in-camera hearing, the trial judge effectively sealed Bradley’s ability to maintain and secure counsel of her choice in a capital case. First, the judge inexplicably refused to let Bradley’s former attorney, Patrick Hutchinson, speak on Bradley’s behalf even though he was representing her interest in not having Cynthia Dunlevy withdraw as her present counsel. Second, the judge substituted retained counsel with appointed counsel without ever asking for or learning Bradley’s opinion. While the dissent correctly asserts that a defendant has no right to insist on counsel she cannot afford, see Wheat v. United States, 486 U.S. 153, 159 , 108 S.Ct. 1692 , 100 L.Ed.2d 140 (1988), the judge never asked Bradley about her financial condition. Rather, he silenced her entirely, the effect of which was…

dissenting.

For some reason, the majority discourses on objectivity and subjectivity, doubt and certainty, dicta and principles and holdings, when we have a straightforward question to answer: was the California Court of Appeal’s decision contrary to, or an unreasonable application of, clearly established federal law as declared by the United States Supreme Court, 28 U.S.C. § 2254 (d); Lockyer v. Andrade, 538 U.S. 63, 73-76 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003), in holding that Nicole Bradley was not prejudiced by her absence from a critical proceeding where her attorneys were allowed to withdraw on the ground that they were not getting paid by Bradley’s father (as they were supposed to be) and new counsel was appointed in their stead; or that the trial court’s refusal to substitute another retained counsel for appointed counsel on the eve of trial, after more than three years of lawyer-churning, did not offend the Sixth Amendment. In my view, the court of appeal’s decision reasonably applied Supreme Court precedent because Kentucky v. Stincer, 482 U.S. 730, 746 , 107 S.Ct. 2658 , 96 L.Ed.2d 631 (1987), held that a defendant is not deprived of due process when she is excluded…