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United States Court of Appeals,
Ninth Circuit.
Henry Lee CORDOVA, Petitioner-Appellee,
v.
Leroy BACA, Sheriff of Los Angeles County; Deanne Myers,
Los Angeles Superior
Court Judge; Steven Cooley, Los Angeles District Attorney;
Bill Lockyer,
Attorney General of California,
Respondents-Appellants.
No. 02-55713.
Argued and Submitted Jan. 14, 2003.
Filed Oct. 6, 2003.
Matthew G. Monforton, Deputy District Attorney, Los Angeles, CA,
argued for the respondents-appellants. Steve
Cooley, District Attorney of Los Angeles County, George
M. Palmer, Head Deputy District Attorney, and Brentford J. Ferriera, Deputy
District Attorney, joined him on the briefs.
Ronald
S. Smith, Los Angeles, California, argued for the
petitioner- appellee.
Appeal from the
United States District Court for the Central District of California Lourdes G.
Baird, District Judge, Presiding. D.C. No. CV-01-01959- LGB.
Before: CYNTHIA
HOLCOMB HALL, ALEX
KOZINSKI and JOHNNIE
B. RAWLINSON, Circuit Judges.
OPINION
KOZINSKI, Circuit Judge:
*1 We must evaluate under AEDPA a state court's decision to
apply harmless error review where a criminal defendant was not represented by
counsel at trial, following a defective waiver of his right to counsel.
Facts
Petitioner Henry
Cordova was arrested outside his home after an altercation involving his
neighbors. He was handcuffed by a Deputy Sheriff and placed in the back seat of
a patrol car. After the deputy entered the car and sat in the driver's seat,
Cordova either sneezed (his story) or spit (the deputy's story), as a result of
which something unsavory landed on the deputy's face.
Cordova was charged
in the South Bay Municipal Court with three misdemeanor counts of battery--two on his neighbors, the
third on the deputy. Cordova was not eligible for representation by the Public
Defender, and he vacillated as to whether he would hire a lawyer or represent
himself. The trial judge, everyone agrees, did not admonish him as required by Faretta v. California,
422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), which held that a criminal defendant wanting to represent
himself "should be made aware of the dangers and disadvantages of
self-representation, so that the record will establish that 'he knows what he
is doing and his choice is made with eyes open.' " Id.
at 835(quoting Adams
v. United States ex rel. McCann,
317 U.S. 269, 279, 63 S.Ct. 236, 87 L.Ed. 268 (1942)).
Cordova ended up
representing himself. After a jury trial, he was acquitted of the two counts
involving his neighbors but was convicted of battery on the deputy. The Appellate
Division of the Los Angeles County Superior Court affirmed the conviction, even
though it found that "the trial court committed error in failing to
adequately advise [Cordova] of the dangers of self- representation" and
the record was therefore "inadequate to ... demonstrate [ ] that appellant
was sufficiently informed of the dangers of self- representation so as to make
an intelligent and knowing waiver." App. Div. Order at
7. The Appellate Division, however, found that "the failure to
advise the appellant of the dangers of self-representation was harmless beyond
a reasonable doubt" under Chapman
v. California,
386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d
705 (1967), because "[t]here is nothing in
the record to support a finding that the results would have been any different
if appellant had been represented by counsel ." App. Div. Order at 7-8. According to the Appellate Division, "[t]he case did not
involve a sophisticated defense or complicated legal issues. It was
simply a question of who would the jury believe." Id.
at 8.
In petitions
presented to the California Court of Appeal and California Supreme Court,
Cordova argued that the Appellate Division should not have conducted harmless
error review, but
rather reversed automatically once it determined that he had not effectively
waived his right to counsel. After the state courts denied him relief on this claim,
he brought this habeas petition in federal court. [FN1] The district court granted the writ; it held that, once
the Appellate Division had concluded Cordova's waiver was invalid, he was
entitled to automatic
reversal of his conviction. The state appeals, claiming that the
Appellate Division's ruling did not contravene any Supreme Court case law
directly on point, nor was its ruling an unreasonable application of that law
under the alternative prong of AEDPA. 28
U.S.C. ß 2254(d)(1).
Discussion
*2 It
is so well established as to require no citation that a criminal defendant has
a constitutional right to counsel at trial. It is also established by numerous
Supreme Court cases that if a defendant is denied the right to counsel, that error is structural and
calls for automatic reversal of the conviction; in other words, denial of the
right to counsel at trial is not subject to harmless error review. See, e.g., Penson v. Ohio,
488 U.S. 75, 87-89, 109 S.Ct. 346, 102 L.Ed.2d 300
(1988); Rose
v. Clark,
478 U.S. 570, 578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)..
The right to counsel, like other
constitutional rights, may be waived.
Faretta,
422 U.S. at 807. However, unless and until a criminal defendant
waives a particular right, he continues to have it. A botched waiver does not
diminish or alter the right. An unwaived right is an
unimpaired right.
Here, the state
appellate court determined that Cordova did not effectively waive his right to
counsel because the
trial court did not give him proper warnings. See p. 14835 supra.
Cordova thus commenced the trial with his right to counsel intact. Because
Cordova was tried without a lawyer, it follows ineluctably from Supreme Court
cases such as Rose and Penson that his
trial was infected by structural error, and the Appellate Division was wrong
when it concluded the error was harmless.
The state argues
vigorously that there is in fact no Supreme Court authority on point
because no Supreme Court cases deal with the consequences of a defective Faretta waiver. In the absence of such authority,
the state argues, the Appellate Division's harmless error review following a
defective waiver was neither directly contrary to Supreme Court authority nor
an unreasonable application thereof. See
28
U.S.C. ß 2254(d)(1). But
we do not need a Supreme Court case to tell us the consequence of a defective
waiver; a defective waiver waives nothing and thus is of no consequence.
See Johnson
v. Zerbst,
304 U.S. 458, 468, 58 S.Ct. 1019, 82
L.Ed. 1461 (1938)
("If the
accused ... is not represented by counsel and has not competently and
intelligently waived his constitutional right, the Sixth Amendment stands as a
... bar to a valid conviction and sentence depriving him of his life or his
liberty."). Cordova started out the proceedings with a
right to counsel. Had he waived that right, the state would then have been
entitled to try him without a lawyer. But the state appellate court found
Cordova's waiver defective. This means that Cordova was entitled to counsel,
yet was tried without one. And we do have Supreme Court authority squarely on
point telling us that this kind of error is conclusively deemed prejudicial, so
the conviction must be reversed automatically, without any inquiry as to
whether the presence of a lawyer would have made a difference.
The state's
confusion on this elementary point stems from its failure to distinguish
between two separate steps in the analysis--the effect of a defective waiver
colloquy and the effect of a defective waiver. As noted, the Supreme
Court in Faretta held that, before a trial
court accepts a defendant's waiver of the right to counsel, "he should be made aware of the
dangers and disadvantages of self-representation." Faretta,
422 U.S. at 835. The
Supreme Court has not told us whether a trial court's failure to give proper
warnings automatically vitiates the waiver, as in the case of defective Miranda
warnings, see Miranda
v. Arizona,
384 U.S. 436, 492, 86 S.Ct. 1602, 16 L.Ed.2d 694
(1966), or whether the error is subject to
harmlessness analysis--an inquiry into whether, despite the absence of proper
warnings, the waiver was nonetheless valid, as in United
States v. Vonn,
535 U.S. 55, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002).
*3 Because
the Supreme Court has not spoken to the consequences of a trial court's failure
to give proper Faretta warnings, a state court
would be entitled to conclude that a defective waiver colloquy does not
automatically result in a defective waiver--that a defendant's waiver was
nonetheless knowing and voluntary, perhaps because defendant was well versed in
the criminal justice process. That, indeed, is the approach our own court has
taken. See United
States v. Balough,
820 F.2d 1485, 1488 (9th Cir.1987). But the Appellate Division concluded that the defective
waiver colloquy here vitiated the waiver. [FN2] It then
proceeded to apply harmless error analysis to the next stage in the
proceedings--determining whether the outcome of the trial would have been
different had petitioner been represented. But that is exactly what the Supreme
Court has told us appellate courts may not do.
The distinction
between harmless error analysis at the waiver colloquy stage and that at the
waiver stage is illustrated by People
v. Dennany,
445 Mich. 412,
519 N.W.2d 128 (Mich.1994)--a case on which the
state erroneously relies. Dennany was actually
a consolidated case, and only the companion case-- People v. Jones--dealt
with our situation. [FN3] Jones had
asked to represent himself, and the trial court allowed him to do so without
first giving him proper warnings. The majority considered whether defendant's
waiver might nevertheless have been valid, based on knowledge he may have
acquired from other sources, but concluded that defendant's prior experience
with the criminal justice system was not sufficient to render the lack of a
warning harmless. Dennany,
519 N.W.2d at 143 n. 26.
It therefore held that the waiver was invalid. Id. [FN4] However, when it came to the next step in the
analysis--determining the effect of the invalid waiver--the Michigan Supreme
Court applied a rule of automatic reversal. Id. at
143.
All but one of the
remaining cases on which the state relies are equally
unhelpful to its position. Richardson
v. Lucas,
741 F.2d 753 (5th Cir.1984), did apply harmless
error analysis to a case involving a defective waiver of the right to counsel,
but it preceded the Supreme Court's opinions in Rose and Penson, and thus cannot stand for the
proposition that Rose and Penson are
not controlling on this point. Even worse from the state's perspective, the
only authority Richardson cited was a Tenth Circuit case, United
States v. Gipson,
693 F.2d 109, 112 (10th Cir.1982). Gipson
was subsequently overruled by the Tenth Circuit, relying on the intervening
authority of Penson.
See United
States v. Allen,
895 F.2d 1577, 1579-80 (10th Cir.1990). We have
every confidence that the Fifth Circuit will reconsider its position in Richardson
when it next revisits the issue.
The state, finally,
relies on three cases from the California intermediate appellate courts. [FN5] One of these, People
v. Noriega,
59 Cal.App.4th 311, 69 Cal.Rptr.2d 127 (1997),
had no occasion to rule on the issue because the parties there agreed that the
harmless error standard applied. Id.
at 321, 69 Cal.Rptr.2d 127.
People
v. McArthur,
11 Cal.App.4th 619, 14 Cal.Rptr.2d 203 (1992),
actually undermines the state's position. The McArthur court clearly
recognized that harmless error review presents different issues at the waiver
colloquy and waiver stages of the analysis--and thus treated them separately. The court first quoted from the
clearly defective waiver colloquy at the start of the trial. Id.
at 625-27, 14 Cal.Rptr.2d 203. Despite the shortcomings in the trial court's
admonitions, the McArthur court concluded that defendant's waiver of
counsel at trial was valid because he "was well educated and experienced
in legal procedures." Id.
at 627, 14 Cal.Rptr.2d 203.
The court further noted, however, that defendant had been given no warnings at all at his
arraignment, id.
at 628 & n. 1, 14 Cal.Rptr.2d 203, and, therefore, there was no valid waiver of the right to
counsel at that stage of the proceedings. The court then went on to consider
whether that error was structural or subject to harmlessness review.
*4 In concluding that the error was not
structural, McArthur recognized the teaching of Rose where "the United States Supreme
Court ... stated denial of the right to counsel is an error which 'necessarily
render[s] a trial fundamentally unfair.' " Id.
at 629, 14
Cal.Rptr.2d 203 (quoting Rose,
478 U.S. at 577) (citation omitted). McArthur
did not find this portion of Rose dispositive
because, in its view, denial of counsel merely at the arraignment differed
materially from denial of counsel at trial. The most one can say about McArthur,
then, is that it did not speak to the question presented to us; it would be
more accurate, however, to say that McArthur recognized that harmless
error review was not appropriate where defendant was denied counsel at trial,
but was appropriate where defendant was denied counsel during a less central
portion of the proceedings.
This leaves People
v. Wilder,
35 Cal.App.4th 489, 41 Cal.Rptr.2d 463 (1995),
on which the state places its principal reliance. Wilder did hold that a
defective Faretta waiver is subject to
harmless error review, but its reasons are not persuasive. Wilder first
seems to say that Rose is not binding on this point because the issue
was not squarely presented there. See id.
at 498-99, 41
Cal.Rptr.2d 463. However, Rose is just one
in a long line of Supreme Court cases holding that denial of counsel is
structural error, yet the Wilder court considered only Rose. See
p. 14842 infra. Wilder did not consider Penson,
which came two years after Rose and reiterates the point with even stronger force. The Tenth
Circuit found Penson so conclusive that it
overruled its earlier contrary cases without going en banc. Allen,
895 F.2d at 1580 n .1.
Wilder also
conflated harmless error analysis at the waiver colloquy stage with harmless
error analysis once the waiver is deemed to be invalid. Thus, the court
concluded that "[a] recitation of the dangers and disadvantages of self-
representation would have led to the same result; he would have voluntarily
proceeded in pro se. The trial would have still occurred with defendant
representing himself. Nothing would have changed had defendant been advised of
the dangers of self-representation." Id.
at 502, 41 Cal.Rptr.2d 463.
[FN6] This
sounds like a finding that the failure to give proper warnings was harmless and
the waiver was therefore valid. Perhaps not satisfied with this conclusion, Wilder
then went on to hold that, even in the face of an invalid waiver, harmless
error review applies. Id.
at 502-03, 41 Cal.Rptr.2d 463. Its reasons for so concluding are not persuasive. The
court was concerned with the fact that "the self-representation right
granted by Faretta has been regularly abused
and presented difficult problems for California trial and appellate
courts." Id.
at 503. But the kind of
manipulations the court described had absolutely no connection to warnings
defendant may have been given. Indeed, manipulation presupposes knowledge and
an ability to work around the rules, and a defendant who knows enough to
manipulate will very likely be one whose
waiver will be deemed voluntary, despite any defect in the admonitions given by
the court. This hardly seems like a justification for holding that, even where
a defendant does not enter a knowing and intelligent waiver, and is thus denied
the right to counsel through no fault of his own, the error will be subject to
harmlessness review.
*5 The state
argues vigorously that, whether or not we agree with Wilder, its
interpretation of Supreme Court case law is not unreasonable and we must
therefore accord it deference. This is not so. Federal courts owe substantial
deference to state court interpretations of federal law only under the
alternative prong of AEDPA, which asks whether the state court's ruling amounts
to an "unreasonable application of [ ] clearly established Federal law, as
determined by the Supreme Court." 28
U.S.C. ß 2254(d)(1). Our ruling, however, rests on the first prong of the
test, namely that the state court's ruling is "contrary to" a long
line of Supreme Court cases--not merely Rose and Penson,
but also Chapman
itself, 386 U.S. at 23 & n. 8, United
States v. Cronic,
466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984), and Glasser v. United States,
315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed.
680 (1942), superseded on other grounds by
statute, as recognized by Bourjaily v. United States,
483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), among others. Whether a state court's interpretation of federal law is contrary
to Supreme Court authority--as opposed to an unreasonable application
thereof--is a question of federal law as to
which we owe no deference to the state courts. See Williams
v. Taylor,
529 U.S. 362, 406, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000) ("[A] federal court [is]
unconstrained by ß 2254(d)(1)
[where] the state-court decision falls within that provision's 'contrary to'
clause."). [FN7]
In sum, we conclude that if a
criminal defendant is put on trial without counsel, and his right to counsel
has not been effectively waived, he is entitled to an automatic reversal of the
conviction. The reason for the
denial--whether it be an oversight on the part of the
court, a failure to give proper warning or some other reason--is irrelevant.
What matters is that the defendant was put on trial without a lawyer though the
Constitution guarantees him that right. That is the kind of defect in the trial process the
Supreme Court has told us time and again cannot be unscrambled. The
Appellate Division's effort to analyze the evidence and determine what would
have happened, had Cordova been represented by counsel, is precisely the kind
of inquiry the Supreme Court has said cannot be made. Automatic reversal of the
conviction is the only lawful remedy.
AFFIRMED.
FN1. The state agrees that Cordova adequately exhausted his
state remedies.
FN2. It is unclear whether the Appellate Division concluded
that the defective waiver colloquy resulted in a defective waiver because it
found no evidence in the record that the waiver was, nonetheless, knowing and
intelligent, or whether it did so because it did not appreciate the
distinction. Whatever the reason, the fact remains that the
Appellate Division found the waiver defective.
FN3. Dennany itself
dealt with the converse situation--whether the trial court had erroneously
denied defendant the right to represent himself--and the part of the opinion
dealing with Dennany's case says nothing relevant to
us.
FN4. A concurring justice, by contrast, concluded that
defendant did have sufficient education and experience, so that the
trial court's failure to give proper warnings was indeed harmless and the
waiver was valid. Id. at 152 (Boyle, J., concurring in
part and dissenting in part). Justice Boyle's concurrence did state
that, had the waiver not been effective, the absence of counsel at trial might
be reviewed for harmless error. Dennany,
519 N.W.2d at 152 & n. 13. Aside from the fact that this was a hypothetical
speculation in a concurring opinion, not a holding by the majority as the state implies in its brief,
Justice Boyle's analysis on this point rested entirely on two federal
authorities, United
States v. Gipson,
693 F.2d 109, 112 (10th Cir.1982), and Richardson
v. Lucas,
741 F.2d 753, 757 (5th Cir.1984). As further
discussed below, neither of these authorities survive
the Supreme Court's opinions in Rose and Penson.
See pp. 14839 infra. More significant, however, is that even the
concurrence fully understood that separate harmless error inquiries must
be made at the waiver colloquy and waiver stage of the analysis.
FN5. We note that the state's recitation of California
appellate cases on this issue is not complete. The state does not cite cases
such as People
v. Hall,
218 Cal.App.3d 1102, 1108-09, 267 Cal.Rptr.
494 (1990), and People
v. Lopez,
71 Cal.App.3d 568, 571, 138 Cal.Rptr. 36 (1974), which go the other way.
FN6. We note that Wilder gave no
reasons in the record for this conclusion. Unlike other cases that have
carefully examined the defendant's education and experience in concluding that
warnings from the court would not have mattered, see, e.g., Balough, 820 F.2d at 1485; McArthur, 11 Cal.App.4th at 619, 14 Cal.Rptr.2d 203; see also Dennany, 519 N.W.2d at 152(Boyle, J.,
concurring in part and dissenting in part), the Wilder court simply stated its
conclusion without providing any support for it. However, the Supreme Court's
insistence that trial courts give warnings as to the dangers of
self-representation pre-supposes that some defendants may be swayed to
change their minds. It's possible, of course, to say that the warning would not
be effective in particular circumstances, such as where the defendant has legal
training or much experience with the criminal justice process, but it's quite a
different matter to reach such a conclusion based solely on the court's
assumption that the warnings wouldn't have mattered anyhow. The latter is
simply not consistent with the Supreme Court's teachings in Faretta.
FN7. That having been said, Wilder
is enough of an outlier, and its reasoning is sufficiently suspect, that we
would have little hesitation in concluding that it is also an unreasonable
application of federal law as announced by the Supreme Court, under the
alternative prong of AEDPA.