1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BRANDON CROSBY, ) Case No. CV 16-4121-SP ) 12 Petitioner, ) MEMORANDUM OPINION AND ) ORDER 13 v. ) ) 14 )

A. ARTHUR, Warden, )

15 ) Respondent. ) 16 ) ) 17 18 I. 19 INTRODUCTION 20 On July 8, 2016, petitioner Brandon Crosby filed a First Amended Petition 21 for Writ of Habeas Corpus by a Person in State Custody (“First Amended Petition” 22 or “FAP”). Petitioner challenges his October 24, 2014 conviction in the Los 23 Angeles County Superior Court for assault of a peace officer causing great bodily 24 injury. 25 The First Amended Petition purports to raise five grounds for relief. Two of 26 the grounds claim the trial court erred during petitioner’s waiver of counsel hearing. 27 The other grounds are difficult to decipher, although they also reference petitioner’s 28 1 waiver of counsel. 2 For the reasons discussed below, petitioner’s claims do not merit habeas 3 relief. Accordingly, the FAP will be denied with prejudice. 4 II. 5 STATEMENT OF FACTS1 6 On May 28, 2014, Los Angeles County Deputy Sheriff Keelan Chan detained 7 petitioner at the Wilmington Train Station for fare evasion. Petitioner resisted a pat 8 down search and punched the deputy in the face, breaking his nose. 9 Security Assistant Iris Avalos saw Deputy Chan fall and hit a metal stairway 10 with blood gushing out his mouth. Avalos radioed for help as petitioner ran to a 11 Denny’s restaurant. Responding to the call, Sheriff’s Deputies Aguiano and Atilano 12 found petitioner hiding in a bathroom stall. Petitioner charged and kicked the 13 deputies as he was “extracted” from the bathroom. 14 In an interview conducted in compliance with Miranda v. Arizona, 384 U.S. 15 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), petitioner admitted punching Deputy 16 Chan. Petitioner said that he “two pieced” the deputy – street slang for a one-two 17 punch in rapid succession. 18 A month before trial, the trial court granted petitioner’s motion pursuant to 19 Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975), and 20 discharged the deputy public defender. Petitioner defended on the theory that he 21 resisted arrest but never hit Deputy Chan. The jury returned a guilty verdict on 22 count 1 for assault on a peace officer and acquitted on counts 2 and 3 for resisting 23 an officer (Deputies Aguiano and Atilano). At the sentencing hearing, the trial 24 court denied petitioner’s request to withdraw the Faretta waiver and sentenced 25 26 1 The facts set forth are drawn largely verbatim from the California Court of Appeal’s decision on direct appeal. Lodged Doc. (“LD”) 7 at 2. Such statement of 27 facts is presumed correct. 28 U.S.C. § 2254(e)(1); Vasquez v. Kirkland, 572 F.3d 28 1029, 1031 n.1 (9th Cir. 2009). 1 petitioner to 17 years in state prison. 2 III. 3 PROCEEDINGS 4 On October 6, 2014, following a trial, a jury found petitioner guilty of assault 5 on a police officer (Cal. Penal Code § 245(c)) and found true a great bodily injury 6 enhancement (Cal. Penal Code § 12022.7(a)). LD 1 at 134-35, 180. The trial court 7 found that petitioner had suffered a prior violent felony conviction (Cal. Penal Code 8 § 667(a)(1)) and a prior prison term (Cal. Penal Code § 667.5(b)). Id. The trial 9 court sentenced petitioner to 17 years in prison. Id. 10 Petitioner, then represented by counsel, appealed the judgment and sentence, 11 raising three arguments: (1) the failure to advise petitioner of the nature of the 12 charges against him and the potential penal consequences prior to accepting his 13 Faretta waiver was not harmless error; (2) the trial court improperly denied 14 petitioner’s request to withdraw his Faretta waiver at the sentencing hearing; and 15 (3) a sentencing error. LD 4. On October 27, 2015, the California Court of Appeal, 16 in a reasoned decision, struck the one-year prior prison term enhancement and so 17 reduced the sentence to 16 years, but otherwise affirmed the judgment. LD 7. 18 Petitioner filed a petition for rehearing in the Court of Appeal, which was 19 denied without comment on November 16, 2015. LD 8-9. 20 Petitioner then filed a petition for review in the California Supreme Court, 21 arguing there was split authority in the California Court of Appeal on whether a 22 Faretta advisement must include penal consequences and the nature of the charges. 23 LD 10. The California Supreme Court summarily denied the petition for review on 24 January 13, 2016. LD 11. 25 On June 10, 2016, petitioner filed a Petition for Writ of Habeas Corpus by a 26 Person in State Custody (“Petition”). The court dismissed the Petition with leave to 27 amend on June 15, 2016 on the bases that: (1) it was unclear what claims petitioner 28 1 was raising; (2) the court was unable to discern whether petitioner had exhausted 2 his state remedies; and (3) assuming the claims were some version of those stated in 3 the request for relief, there was no federal constitutional basis for the claims. 4 Petitioner filed the First Amended Petition on July 8, 2016. 5 IV. 6 STANDARD OF REVIEW 7 This case is governed by the Antiterrorism and Effective Death Penalty Act 8 of 1996 (“AEDPA”). AEDPA provides that federal habeas relief “shall not be 9 granted with respect to any claim that was adjudicated on the merits in State court 10 proceedings unless the adjudication of the claim – 11 (1) resulted in a decision that was contrary to, or involved an unreasonable 12 application of, clearly established Federal law, as determined by the Supreme Court 13 of the United States; or 14 (2) resulted in a decision that was based on an unreasonable determination of 15 the facts in light of the evidence presented in the State court proceeding.” 28 16 U.S.C. § 2254(d)(1)-(2) (emphasis added). 17 In assessing whether a state court “unreasonably applied” Supreme Court law 18 or “unreasonably determined” the facts, the federal court generally looks to the last 19 reasoned state court decision as the basis for the state court’s justification. Wilson 20 v. Sellers, __ U.S. __, 138 S. Ct. 1188, 1192, 200 L. Ed. 2d 530 (2018) (“the federal 21 court should ‘look through’ the unexplained decision to the last related state-court 22 decision” and “presume that the unexplained decision adopted the same 23 reasoning”). Here, the California Court of Appeal’s opinion on February 16, 2012 24 stands as the last reasoned decision. 25 // 26 // 27 28 1 V. 2 DISCUSSION 3 A. Petitioner Is Not Entitled to Relief on His Faretta Claim 4 Petitioner, in Grounds One and Three, raises a Faretta claim. In Ground 5 One, petitioner states “the issue presented [] is whether a knowing and intelligent 6 waiver of [a] defendant’s right to counsel requires a showing that the defendant 7 knows the maximum sentence he is facing.” FAP at 5.2 In Ground Three, petitioner 8 states he did not receive a copy of the information before he waived his right to 9 counsel. Id. at 7. Taken together, petitioner appears to argue either, or perhaps 10 both, that: (1) a trial court is required to provide a particularized advisement to a 11 defendant during a Faretta hearing and did not here; or (2) petitioner’s waiver of 12 his right to counsel was not knowing and intelligent because the trial court did not 13 inform petitioner of the maximum sentence he faced or provide him a copy of the 14 information at the hearing. 15 1. It Is Unnecessary for the Court to Address Teague 16 Respondent contends petitioner’s claim is barred by Teague v. Lane, 489 U.S. 17 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989). In Teague, the Supreme Court held 18 that a new rule of constitutional law generally cannot be applied retroactively on 19 collateral review. Whorton v. Bockting, 549 U.S. 406, 416, 127 S. Ct. 1173, 167 L. 20 Ed. 2d 1 (2007). Rather, it is generally only available to cases open on direct 21 review. Id. “[A] case announces a new rule when it breaks new ground or imposes 22 a new obligation on the States or the Federal Government” or “if the result was not 23 dictated by precedent existing at the time the defendant’s conviction became final.” 24 Teague, 489 U.S. at 301; accord Stringer v. Black, 503 U.S. 222, 228, 112 S. Ct. 25 1130, 117 L. Ed. 2d 367 (1992). Teague also applies where a habeas claim would 26 27 2 For ease of reference, the court refers to the page numbers in the FAP as 28 enumerated under CM/ECF. Page five of the FAP is blank on CM/ECF. 1 require the announcement of a new rule. See Saffle v. Parks, 494 U.S. 484, 487-88, 2 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990) (“[O]n collateral review, we must first 3 determine whether the relief sought would create a new rule under . . . Teague”). 4 Because the court denies the FAP on the merits, it is not necessary to address 5 respondent’s Teague argument. See Leavitt v. Arave, 383 F.3d 809, 816 (9th Cir. 6 2004) (the Teague argument only has to be addressed if the district court granted 7 the habeas petition). 8 2. Clearly Established Law Does Not Require a Particularized 9 Warning 10 To the extent petitioner is arguing that the Constitution requires a trial court 11 to provide particularlized warnings to a criminal defendant during a pre-trial 12 Faretta hearing, the Court of Appeal’s denial is not contrary to clearly established 13 federal law. 14 The Sixth Amendment provides a criminal defendant the right to waive 15 assistance of counsel and represent himself. Faretta, 422 U.S. 806. The waiver 16 must be knowing and intelligent, and the request must be timely and unequivocal. 17 Id. at 835; Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007). But the Supreme 18 Court has not “prescribed any formula or script to be read to a defendant who states 19 that he elects to proceed without counsel.” Iowa v. Tovar, 541 U.S. 77, 88, 124 S. 20 Ct. 1379, 158 L. Ed. 2d 209 (2004); Arrendondo v. Neven, 763 F.3d 1122, 1130 21 (9th Cir. 2014). A trial court must warn a criminal defendant of the hazards ahead – 22 the dangers and disadvantages of self-representation – but what information is 23 required depends on “a range of case-specific factors, including . . . the complex or 24 easily grasped nature of the charge [] and the stage of the proceeding.” Tovar, 541 25 U.S. at 88. 26 Accordingly, to the extent petitioner is arguing that a trial court is required to 27 provide a specific script, the Court of Appeal’s denial is not contrary to clearly 28 1 established law. 2 3. Petitioner Was Aware of the Possible Punishments 3 Petitioner also suggests his waiver was not knowing or intelligent because the 4 court did not inform him of his maximum sentence during the Faretta colloquy. 5 “[I]n a collateral attack on an uncounseled conviction, it is the defendant’s burden 6 to prove that he did not competently and intelligently waive his right to the 7 assistance of counsel.” Tovar, 541 U.S. at 92. In the FAP, plaintiff did not actually 8 plead that he did not knowingly and intelligently waive his right to counsel. 9 Petitioner merely raised the question of whether a trial court must inform a 10 defendant of the maximum punishment he faced in order for a waiver to be knowing 11 and intelligent, and alleges that he did not receive his information when he waived 12 his right to counsel. See FAP at 5, 7. But petitioner never actually alleged he was 13 unaware of the risks of self-representation, including the possible punishments. As 14 such, petitioner’s claim fails. 15 Moreover, petitioner has not shown he would be entitled to relief even if he 16 had alleged his waiver was not made knowingly and intelligently because he was 17 unaware of the punishment he faced. As discussed above, Faretta requires that a 18 defendant be made aware of the dangers and disadvantages of self-representation. 19 Faretta, 422 U.S. at 835. Subsequently, in Tovar, the Supreme Court held that for 20 defendants seeking self-representation for purposes of entering a plea, the trial court 21 had satisfied its constitutional requirement of making the defendant aware of the 22 hazards ahead by informing him “of the nature of the charges against him, of his 23 right to be counseled regarding his plea, and of the range of allowable punishments 24 attendant upon the entry of a guilty plea.” Tovar, 541 U.S. at 81. The Supreme 25 Court explained that the “‘law ordinarily considers a waiver knowing, intelligent, 26 and sufficiently aware if the defendant fully understands the nature of the right and 27 how it would likely apply in general in the circumstances – even though the 28 1 defendant may not know the specific detailed consequences of invoking it.’” Id. at 2 92 (quoting U.S. v Ruiz, 536 U.S 622, 629, 122 S. Ct. 2450; 153 L. Ed. 2d 586 3 (2002)). 4 In Arrendondo, the Ninth Circuit determined that Tovar complemented 5 Faretta, finding that Faretta emphasized the “tactical liabilities of going to trial 6 without trained counsel” while Tovar ensured defendants “understood the 7 magnitude of the loss they face.” Arrendondo, 763 F.3d at 1131. In other words, 8 Faretta discussed knowledge as it relates to the probability of conviction and Tovar 9 concerned knowledge of the consequences of conviction. Id. “Taken together, 10 [Faretta and Tovar] outline the minimum necessary knowledge for a defendant to 11 calculate knowingly and intelligently the risk of proceeding to trial pro se.” Id. The 12 Ninth Circuit then acknowledged that Tovar concerned an uncounseled guilty plea 13 but concluded the requirement that a defendant understand the possible 14 punishments extended to the uncounseled trial context. Id. at 1132. This court is 15 bound by the Ninth Circuit’s determination that to not extend Tovar to waivers in 16 the trial context would be an unreasonable interpretation of clearly established 17 federal law. See id.; Lair v. Bullock, 697 F.3d 1200, 1206-07 (9th Cir. 2012) 18 (district courts are bound by circuit authority unless there is an intervening, 19 irreconcilable Supreme Court decision); Day v. Apoliona, 496 F.3d 1027, 1031 (9th 20 Cir. 2007); Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003). 21 Here, the Court of Appeal noted that the Supreme Court has not directly 22 answered the question of whether a defendant seeking to waive his right to counsel 23 before trial must be advised of the full range of punishments he faces. LD 7 at 3. 24 This was not contrary to clearly established federal law. The Court of Appeal then, 25 relying on a state court case discussing Tovar, acknowledged the requirement that a 26 defendant be advised of his range of possible punishments during a waiver hearing 27 at the plea stage but found that such an advisement was difficult to apply at the trial 28 1 stage because of the difficulties in predicting what the counts the defendant would 2 be convicted of. See id. at 3-4 (discussing People v. Jackio, 236 Cal. App. 4th 445, 3 186, Cal. Rptr. 3d 662 (2015)). Instead, the Court of Appeal, without stating that a 4 trial court had an affirmative obligation, agreed with other California state courts 5 that it would be more reasonable to require a trial court to advise a defendant of the 6 maximum punishment that could be imposed. See id. at 3. While this standard 7 differs slightly from that proffered in Tovar, it is not contrary to Tovar given that 8 Tovar stated that what information must be provided was case-specific and 9 dependent on the stage of the proceedings. See Tovar, 541 U.S. at 88. 10 Moreover, consistent with Tovar, the Court of Appeal found it was sufficient 11 for petitioner to have knowledge of his possible punishments. See LD 7 at 4; see 12 also McCormick v. Adams, 621 F.3d 970, 979 (9th Cir. 2010) (even if the trial court 13 had conducted a defective colloquy, a “defective waiver colloquy will not 14 necessitate automatic reversal when the record as a whole reveals a knowing and 15 intelligent waiver”) (internal quotations and citation omitted). In other words, 16 rather than focus on what the trial court said, the question was what petitioner 17 understood. See id. 18 Here, the Court of Appeal reasonably determined that the totality of the facts 19 demonstrated petitioner was aware of the charges against him and the possible 20 punishments he faced based on the fact he had a copy of the information and he had 21 reviewed the Faretta form with his counsel. Petitioner does not directly dispute his 22 receipt of the information, but argues the record does not show this. At the August 23 26, 2014 Faretta hearing, the trial court granted petitioner’s request to proceed pro 24 se and ordered counsel to provide petitioner with his preliminary hearing transcript, 25 police reports, and discovery before he was sent back to jail. LD 3 at A6. On 26 September 29, 2014, the first day of trial, petitioner claimed he never received the 27 documents, but former counsel represented that she made the copies as ordered and 28 1 provided them to either the bailiff or to the Sheriff’s department. Id. at B1, 1-7. 2 The court then ordered the prosecutor to copy the discovery and provide it to 3 petitioner that day. Id. at 9-10. The Court of Appeal determined petitioner had a 4 copy of the information, which listed the charges and maximum punishment on 5 each count. LD 7 at 4. 6 Based on this record, the Court of Appeal’s finding that petitioner received a 7 copy of the information was reasonable, although it is not clear when petitioner first 8 received it. In any event, there are other indications petitioner knew the punishment 9 he faced. When arguing he did not have his legal files, petitioner did not represent 10 to the trial court that he did not know the charges and possible consequences. At 11 one of the September 29, 2014 hearings, after petitioner had waived counsel, the 12 court inquired regarding settlement discussions, and the prosecutor advised the 13 court in petitioner’s presence that petitioner faced a maximum of 21 years and eight 14 months in prison. LD 3 at 15. As the Court of Appeal recognized, petitioner did 15 not claim surprise when the prosecutor stated the maximum punishment petitioner 16 faced, nor did he then try to revoke his Faretta waiver. Id.; LD 7 at 4. The Court of 17 Appeal thus reasonably concluded petitioner was aware of the maximum 18 punishment he faced, and “waived his right to counsel with eyes open.” LD 7 at 4. 19 Indeed, as discussed above, petitioner does not even expressly argue that he lacked 20 knowledge, but merely argues that the information was not provided and the court 21 did not state the maximum punishment. 22 Accordingly, petitioner is not entitled to habeas relief on his Faretta claim. 23 The Court of Appeal’s decision was neither contrary to clearly established federal 24 law nor an unreasonable determination of the facts.3 25 26 3 Respondent contends that, in any event, the Court of Appeal correctly determined any error was harmless. Answer at 15. Respondent argues that the 27 Court of Appeal found that any error would be harmless because, given the 28 overwhelming evidence of guilt, petitioner would have been convicted even if 1 B. Grounds Two, Four, and Five Fail to State a Claim 2 The remainder of petitioner’s claims – Grounds Two, Four, and Five – are 3 more difficult to decipher and must be dismissed for failure to state a claim. A 4 petitioner must “‘specify all the grounds for relief available to the petitioner’ and 5 ‘state the facts supporting each ground.’” Mayle v. Felix, 545 U.S. 644, 655, 125 S. 6 Ct. 2562, 162 L. Ed. 2d 582 (2005) (quoting Habeas Corpus Rule 2(c)). 7 “Conclusory allegations which are not supported by a statement of specific facts do 8 not warrant habeas relief.” James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (citation 9 omitted). Here, Grounds Two, Four, and Five are so unclear that they do not even 10 rise to the level of being conclusory claims. 11 In Ground Two, petitioner writes that it is the “same” as Ground One and 12 states that the appointment of counsel for post-trial proceedings may have resulted 13 in a different sentence. Id. at 5-6. At first blush this suggests petitioner might be 14 arguing that the trial court erred when it denied his request for counsel during the 15 post-trial proceedings. But this interpretation is undercut by petitioner’s statement 16 that the claim is the “same” as Ground One. It may be that with Ground Two 17 petitioner is simply offering an additional argument to support his Faretta claim. 18 Accordingly, Ground Two is dismissed as vague. Further, to the extent Ground 19 Two may be interpreted as a claim of denial of a right to counsel during sentencing, 20 it is denied as unexhausted. See 28 U.S.C. § 2254(b)(1)(A) (federal habeas relief 21 22 represented at trial. Id. Respondent mischaracterizes the Court of Appeal decision. 23 The Court of Appeal in fact concluded any error was harmless because petitioner 24 would have proceeded to trial without counsel even if warned about the maximum possible sentence at the Faretta hearing. LD 7 at 5. Regardless, had petitioner 25 actually not made a knowing waiver, harmless error is inapplicable to save a Sixth 26 Amendment violation. See Frantz v. Henry, 533 F.3d 724, 734 (9th Cir. 2008) (Sixth Amendment violation is structural and not susceptible to harmless error 27 review); U.S. v. Erskine, 355 F.3d 1161, 1170 n12 (9th Cir. 2004). Accordingly, 28 the court does not rely on harmless error in denying petitioner’s claim for relief. 1 |lshall not be granted unless state prisoner first exhausts his state court remedies); 2 Duncan v. Henry, 513 U.S. 364, 365, 115 S. Ct. 887, 130 L. Ed. 2d 865 (1995) (per 3 curiam); Libberton v. Ryan, 583 F.3d 1147, 1164 (9th Cir. 2009) (to satisfy the 4 exhaustion requirement, petitioner must “fully and fairly” present each claim to the 5 highest state court). Petitioner did not raise a claim of denial of the right to counsel 6 jlat sentencing in his petition for review. See LD 10. 7 In Grounds Four and Five, petitioner simply copies footnotes two and four 8 the Court of Appeal decision. Compare FAP at 7-8 and LD 7 at 4 n.2, 7 n.4. 9 footnotes do not state a claim. Indeed, Ground Four (footnote two of the Court 10 Appeal decision) supports dismissal of plaintiff's Faretta waiver claim. Neither 11 ground identifies any basis for relief nor states any facts to support a ground for 12 relief. 13 Accordingly, Grounds Two, Four, and Five must be dismissed for failure to 14 a claim. 15 VI. 16 CONCLUSION 17 IT IS THEREFORE ORDERED that Judgment shall be entered denying the 18 ||First Amended Petition and dismissing this action with prejudice. 19 ey 21 |DATED: September 19, 2019 22 United States Magistrate Judge 23 24 25 26 27 28 12