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Ninth Circuit Grants Habeas for Appellate Lawyer’s Failure to Raise Denial of Self-Representation Claim

by Matt Clarke

On July 6, 2018, the U.S. Court of Appeals for the Ninth Circuit reversed a federal court’s denial of a California state prisoner’s petition for a writ of habeas corpus after determining that appellate counsel failed to raise a viable claim under Faretta v. California, 422 U.S. 806 (1975), for denial of the right to self-representation.

Dwight Tamplin Jr. was charged in California state court with being a felon in possession of a firearm with a street gang enhancement. Over the following nine months, he was cycled through three public defenders. He then filed a waiver of counsel and motion to represent himself that was granted.

Tamplin represented himself for four months. With a trial scheduled a month away, he appeared in court with privately retained attorney Greg Morris, who asked for a continuance to file a motion to substitute counsel but never filed one. Two weeks before the scheduled trial, the court informed Tamplin that Morris had been disbarred and could not represent him. Tamplin said he wanted to continue to represent himself and signed a second waiver of counsel.

A week later, the court held a hearing on Tamplin’s self-representation. Tamplin explained that he was uncomfortable with anyone from the public defender’s office and had hired Morris because he had the funds and felt Morris had special insight into the case. He complained that the public defenders never filed any pretrial motions when he was represented by them and that Morris had taken all his money, so he could not afford to hire another attorney. He clearly stated that he wanted to continue to represent himself.

After Tamplin failed to answer a question about the rules of evidence correctly and said he could not be ready for trial in a week because he wanted to file additional pretrial motions, the court denied his request for self-representation and appointed Fresno public defender Katherine Hart to represent him. The judge explained that the issues were timeliness and that the request for self-representation was equivocal because Tamplin hired an attorney after initially requesting self-representation. Tamplin objected.

Tamplin was convicted and sentenced to 45 years to life in prison under California’s Three-Strikes sentencing law. On direct appeal, the sentence was reduced to 25 to life, but the issue of denial of self-representation was not raised by the court-appointed appellate counsel.

Tamplin unsuccessfully pursued the Faretta claim in pro se state habeas proceedings up to the California Supreme Court, arguing ineffective assistance of counsel (“IAC”) for failure to raise his Faretta claim on direct appeal. The state habeas court denied his claim on two grounds: (1) his request to represent himself was equivocal and (2) he waived his Sixth Amendment right by acquiescing to the appointment of the public defender’s office to represent him. He filed a federal petition for a writ of habeas corpus, which also was denied.

The Ninth Circuit stated that both rulings are “contrary to established Supreme Court law.”

The Court noted that Tamplin’s situation was almost identical to the facts in Faretta, the case in which the Supreme Court held that the Sixth Amendment guarantees criminal defendants the right to self-representation. Importantly, the Supreme Court explained that even a defendant who lacks the “skill and experience of a lawyer” but is “made aware of the dangers and disadvantages of self-representation” must be allowed to represent himself.

The Court rejected the state habeas court’s conclusion that Tamplin’s request to represent himself was equivocal because of his desire to hire a private attorney. As the Court noted, that “conclusion is clearly contrary to Faretta.” The Court explained Faretta makes it clear that a defendant’s “unsuccessful attempt to hire private counsel” doesn’t make his request to represent himself equivocal “if the only alternative to self-representation is representation by a public defender.” Tamplin was presented with the choice of self-representation or representation by a public defender. He chose the former. The state court violated his Sixth Amendment right by forcing him to accept a state-appointed public defender against his will.  

Similarly, the Ninth Circuit rejected the habeas court’s conclusion that Tamplin waived his right by acquiescing to the trial court’s denial of his request by failing to raise any further objection. The Court explained that, under Faretta, the denial of an unequivocal request for self-representation is a violation of the defendant’s Sixth Amendment right, and the “violation is complete at the time of the court’s denial.” Thus, Tamplin’s right was violated when the trial court denied his request, so he couldn’t have waived his right by not objecting again.

The state habeas court denied Tamplin’s IAC claim based entirely on the conclusion that his Faretta claim was without merit, so it never addressed the issue of whether “appellate counsel would have been ineffective in failing to raise the claim if” it had merit. As such, the Ninth Circuit performed a de novo review of the IAC claim.

Criminal defendants have a Fourteenth Amendment right to the effective assistance of counsel, which the Supreme Court defined in Strickland v. Washington, 466 U.S. 668 (1984). A defendant must show that counsel’s performance was “objectively unreasonable” and that he was prejudiced by the deficient performance.

The record shows that “Tamplin’s appellate counsel had no tactical reason to refrain from raising the Faretta claim. He simply made a mistake.” The Court added that he “had a compelling claim to relief under Faretta.” It explained that a violation of a defendant’s right under Faretta is “one of those rare constitutional errors that requires automatic reversal because it amounts to a structural defect.” United States v. Withers, 638 F.3d 1055 (9th Cir. 2011). Consequently, Tamplin was “prejudiced by his counsel’s deficient performance.”

Accordingly, the Court remanded with instructions to grant the writ of habeas corpus. See: Tamplin v. Muniz, 894 F.3d 1076 (9th Cir. 2018). 

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