FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

OTIS LEE RODGERS,  No. 10-55816

Petitioner-Appellant, D.C. No.

v.  5:08-cv-01003-

VAP-MLG JOHN MARSHALL, WARDEN,

Respondent-Appellee. OPINION 

On Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, District Judge, Presiding

Argued and Submitted

January 12, 2012—Pasadena, California

Filed May 17, 2012

Before: Stephen Reinhardt and William A. Fletcher,

Circuit Judges, and Jack Zouhary, District Judge.*

Opinion by Judge Zouhary

*The Honorable Jack Zouhary, United States District Judge for the

Northern District of Ohio, sitting by designation. 

5217
COUNSEL

John Ward (argued), San Francisco, California, for petitionerappellant Otis Lee Rodgers.

Kevin Vienna (argued), Kamala D. Harris, Gary W. Schons,

David Delgado-Rucci, San Diego, California, for respondentappellee John Marshall.

OPINION

ZOUHARY, District Judge:

INTRODUCTION

In June 2003, a jury found Petitioner-Appellant Otis Lee

Rodgers (“Rodgers”) guilty of assault with a firearm, possession of a firearm and ammunition by a felon, and making

criminal threats, as well as two sentencing enhancement allegations. Rodgers was sentenced and is currently serving a

sixteen-year prison term.

After exhausting state court remedies, Rodgers filed a petition for a writ of habeas corpus in federal court, raising

twenty-one claims for relief. The district court denied the petition, but granted Rodgers a limited certificate of appealability

regarding his claim that the state trial court violated his Sixth

Amendment right to counsel by denying his timely request for

representation to file a new trial motion. In addition to the certified issue, Rodgers argues there was insufficient evidence to

support the charge of criminal threats, and the state court

unreasonably affirmed an upper term sentence in the absence

of proof to a jury beyond a reasonable doubt. We decline to

address those uncertified issues. 

This case requires us to consider whether a criminal defendant’s request for legal counsel to file a post-verdict motion

5220 RODGERS v. MARSHALL
for a new trial is a “critical stage,” and whether denying such

a request, because the defendant previously waived his right

to trial counsel, is a violation of clearly established federal

law. For the reasons set forth below, the judgment of the district court is REVERSED, and this case is REMANDED for

further proceedings.

BACKGROUND

Procedural Background

In June 2003, a jury found Rodgers guilty of several state

charges. The jury also found two sentencing enhancements,

and Rodgers was sentenced to sixteen years in prison. Rodgers appealed the judgment to the California appellate court

which affirmed his convictions and sentence in August 2005.

Rodgers filed a petition for review with the California

Supreme Court, but his petition was dismissed in July 2007.

While Rodgers’ petition for review was pending, he filed

habeas petitions with the California appellate court and the

California Supreme Court challenging the search of his vehicle. Although Rodgers was represented by appellate counsel,

he also filed numerous pro per motions, post-conviction

pleadings, and writ applications in the California appellate

court and the California Supreme Court, including several

motions for substitution of appellate counsel. The appellate

courts rejected all those petitions and claims.

In July 2008, Rodgers filed a petition for writ of habeas

corpus in federal court raising twenty-one claims for relief,

including denial of right to counsel at the post-trial stages for

new trial motions and sentencing. The California Attorney

General answered the Petition in April 2009, arguing the state

court rejected Rodgers’ claim on the merits, and the court’s

decision was neither contrary to, nor an unreasonable application of, controlling United States Supreme Court precedent.

RODGERS v. MARSHALL 5221
The petition was referred to the magistrate judge in March

2010, who recommended dismissal. Rodgers filed objections

and, in May 2010, the district judge approved the magistrate’s

recommendation and also granted a certificate of appealability

as to only one claim — whether the trial court violated Rodgers’ Sixth Amendment by denying his request for the

appointment of counsel to file a new trial motion. For all other

claims, the district court found Rodgers could not “make a

colorable claim that jurists of reason would find debatable or

wrong.” Rodgers filed this timely appeal.

Factual Background

Early in the morning on July 15, 2001, a woman was awakened by screaming and yelling from the parking lot of a

nearby apartment complex. The woman looked through her

window and saw an African American man and a woman near

a red car in the parking lot. Events later established the man

was Otis Lee Rodgers and the woman, his wife Joyce Rodgers. Rodgers, who was calling Joyce a prostitute and threatening to kill her, hit her in the head with his fist and told her

to “[g]ive me the fucking gun.” Joyce retrieved a gun from the

car and gave it to Rodgers, who then placed the gun to her

head and said he was going to kill her. Joyce was crying.

These events were also witnessed by the woman’s eleven-year

old daughter. 

The woman made an anonymous 911 call and, while talking to the dispatcher, saw a patrol car pass by the parking lot.

She informed the dispatcher that the patrol car needed to turn

around. The Riverside County deputy sheriff who was driving

the patrol car had previously received a radio dispatch that a

man and woman were in a red sedan in the apartment complex parking lot, and that the man threatened to shoot the

woman. Rodgers was leaving the parking lot in the red sedan

as the deputy approached. Joyce was in the passenger seat —

upset and crying. Rodgers told the deputy that he and Joyce

had been arguing over financial problems. After discovering

5222 RODGERS v. MARSHALL
Rodgers did not have a driver’s license, the deputy placed him

in the back of the patrol car. Joyce told the deputy that Rodgers had not threatened or assaulted her. 

A second deputy sheriff who arrived at the scene as backup

observed several fresh gouge wounds on Joyce’s shoulders.

Joyce told the deputy she and Rodgers had been arguing and

that she scraped her shoulders on a nail that was sticking out

of a wall. With Joyce’s consent, the first deputy searched

Rodgers’ car. The deputy found a .357 magnum revolver and

ammunition inside the trunk. Rodgers was arrested and

charged with several violations of the California Penal Code.

During the pretrial phase of his case, which lasted nearly

two years, Rodgers alternated requests for counsel and selfrepresentation. Between July and December 2001, Rodgers

represented himself for arraignment and at hearings on

motions prepared pro per. Rodgers retained counsel for a January 2002 preliminary hearing; however, in March 2002, the

trial court granted his motion for self-representation. In May

2002, upon Rodgers’ request, the trial court appointed a public defender. Four months later, Rodgers again decided to go

it alone, but the trial court denied his motion to proceed pro

per. In November 2002, the trial court relieved the public

defender due to a conflict of interest and appointed a defense

panel attorney to continue Rodgers’ representation. Rodgers

sought and received permission to represent himself in February 2003, and continued to represent himself throughout trial.

At trial, Rodgers called several witnesses and testified on

his own behalf. Rodgers testified that on the night of the incident, he and Joyce went to a club and then drove to a parking

lot near a friend’s home. Other cars, including a red car, were

also in the parking lot, along with other African American

males and females. Rodgers and Joyce waited in their car for

their friend to return from the club. About thirty to forty-five

minutes later, Rodgers noticed police cars “zooming around.”

As Rodgers was leaving the parking lot, a deputy pulled up.

RODGERS v. MARSHALL 5223
After asking Rodgers some questions about his driver’s

license, the deputy placed Rodgers in the back of the patrol

car. According to Rodgers, the deputy then took a plastic bag

containing a dark object out of the patrol car, went to Rodgers’ car, opened the trunk, and returned with the bag that had

previously been in the patrol car. 

In June 2003, a jury found Rodgers guilty of assault with

a firearm, possession of a firearm and ammunition by a felon,

and making criminal threats. The jury also found Rodgers personally used a firearm while committing the assault and making the criminal threats and that Rodgers was on bail pending

trial for another felony offense when he committed these

crimes. In addition, Rodgers admitted he had two prior felony

convictions, had been sentenced to prison on each of them,

and that within five years of release from custody he committed another felony. 

Immediately following the reading of the verdict, Rodgers

informed the trial court he wished to file a motion for new

trial. Rodgers also requested the reappointment of the defense

panel attorney to prepare the new trial motion. The trial court

denied Rodgers’ request, stating “[w]e aren’t doing anything

like that right now, Mr. Rodgers.” One month later, Rodgers

filed a written motion again requesting the appointment of

counsel “to perfect and file” a motion for new trial. The trial

court denied his motion, reminding Rodgers that he “made

th[e] election to represent [him]self” and insisted on selfrepresentation even after being counseled against it.

Rodgers insisted he wanted to file a motion for new trial

and if need be he himself would prepare the motion, but he

needed a copy of the trial transcript and two months to “perfect the motion.” Rodgers asserted he had ten to fifteen

grounds for his new trial motion, including claims based on

newly discovered evidence and prosecutorial misconduct during closing argument. The trial court denied his request for

the transcript. 

5224 RODGERS v. MARSHALL
Subsequently, Rodgers filed his new trial motion, along

with a motion to continue sentencing. At the sentencing, the

court asked Rodgers if there was any reason why sentencing

should not proceed. Rodgers responded he needed additional

time to review his probation report and prepare a sentencing

brief; however, the trial court denied his request for a continuance and proceeded with sentencing. 

When the trial court and the prosecutor began to discuss the

possible length of his sentence, Rodgers informed the court he

was unfamiliar with the applicable sections of the California

Penal Code in his case and asked that they be explained to

him. The trial court responded, “Mr. Rodgers, if you had a

lawyer, he could explain it to you.” Rodgers did not request

appointment of counsel for sentencing, but did ask that he be

allowed to bring his family members to court to speak on his

behalf. The court obliged and continued the matter for two

days. 

When the hearing reconvened, Rodgers again expressed

frustration and confusion with the statutory sentencing provisions: 

RODGERS: Again, Your Honor, you are disrespecting me and talking to him not me.

COURT: That’s because you don’t know what I

am talking about, Mr. Rodgers.

RODGERS: That’s what I understand. That’s no

excuse.

COURT: I told you at the time that you did this

that you would be held to the same

standards as a lawyer. You are being

held to the same standards as a lawyer.

That’s an election you made.

RODGERS v. MARSHALL 5225
RODGERS: I don’t know why this is such a discrimination against pro per.

COURT: Not discriminating you [sic], sir. You

are held to the same standards as a

lawyer.

Rodgers now claims that by refusing to appoint counsel for

the motion for new trial, the trial court violated his Sixth

Amendment right to counsel at a critical stage in the proceedings.1

JURISDICTION

This is an appeal of right from a judgment of the district

court, which had jurisdiction under 28 U.S.C. § 2254. The

district court entered judgment on May 4, 2010, which was

timely appealed on May 17, 2010. This Court has appellate

jurisdiction pursuant to 28 U.S.C. § 2253(a).

STANDARD OF REVIEW

Section 2254 provides federal habeas corpus relief to state

1The certified issue does not include Rodgers’ argument that he was

denied counsel during sentencing. Instead of including the issue in his

brief as an uncertified issue under Ninth Circuit Rule 22(e), Rodgers

improperly included it as part of the certified issue. Even if we addressed

Rodgers’ argument, he would not be entitled to relief. Although it is

clearly established law that sentencing is a “critical stage” of a criminal

proceeding, see Mempa v. Rhay, 389 U.S. 128, 134 (1967), the California

appellate court held Rodgers “never requested the appointment of counsel

for his sentencing hearing,” and “the only request he made for counsel was

his July 16, 2003, motion for counsel which was expressly ‘to perfect and

file defendant’s Motion for a New Trial.’ ” This finding, supported by the

record, constitutes “a determination of a factual issue made by a State

court,” and as such, is “presumed to be correct.” See 28 U.S.C. § 2254(e).

Because Rodgers has not met the difficult “burden of rebutting the presumption of correctness by clear and convincing evidence,” this Court

must defer to the state court’s factual determination. Id.

5226 RODGERS v. MARSHALL
prisoners who are in custody “in violation of the Constitution

or laws or treaties of the United States.” 28 U.S.C. § 2254(a).

A district court’s decision to deny a habeas petition under

Section 2254 is reviewed de novo. Alvarado v. Hill, 252 F.3d

1066, 1068 (9th Cir. 2001); Solis v. Garcia, 219 F.3d 922,

926 (9th Cir. 2000). Its findings of fact are reviewed for clear

error. Solis, 219 F.3d at 926. A state court’s findings of fact

are entitled to a presumption of correctness unless the petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Solis, 219 F.3d at 926.

Because Rodgers’ petition was filed after the Anti-Terrorism

and Effective Death Penalty Act’s (“AEDPA”) effective date

of April 24, 1996, its provisions apply. See Woodford v. Garceau, 538 U.S. 202, 205-06 (2003).

In short, AEDPA imposes a “highly deferential standard for

evaluating state-court rulings,” Lindh v. Murphy, 521 U.S.

320, 333 n.7 (1997), and “demands that state court decisions

be given the benefit of the doubt.” Woodford v. Visciotti, 537

U.S. 19, 24 (2002) (per curiam). Under AEDPA, this Court

cannot grant habeas relief unless the state court decision was:

(1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme

Court of the United States;” or was (2) “based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

The Supreme Court has made clear the “contrary to” and

“unreasonable application” clauses have distinct meanings.

Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court

decision is contrary to clearly established federal law where

the court fails to apply the correct controlling authority; or if

it applies controlling authority to a case involving facts materially indistinguishable from those in a controlling case, but

nonetheless reaches a different result. Id. at 413-14; Brown v.

Payton, 544 U.S. 133, 141 (2005). A state court decision

involves an unreasonable application of clearly established

RODGERS v. MARSHALL 5227
federal law if the state court identifies the correct governing

legal principle from Supreme Court precedent, but unreasonably applies that principle to the facts of the case, or unreasonably extends a legal principle to a new context where it

should not apply, or fails to extend the principle to a context

in which it should apply. Williams, 529 U.S. at 407; Brown,

544 U.S. at 141. The state’s application of federal law “must

be shown to be not only erroneous, but objectively unreasonable.” Waddington v. Sarausad, 555 U.S. 179, 190 (2009)

(quotation omitted).

Furthermore, AEDPA’s “clearly established law” requirement limits the area of law on which habeas courts may rely

— the only definitive source of federal law is Supreme Court

precedent. See Williams, 529 U.S. at 412; Mendez v. Knowles,

556 F.3d 757, 767 (9th Cir. 2008). Circuit precedent may provide “persuasive authority” for purposes of determining

whether a state court decision is an “unreasonable application” of Supreme Court precedent. Id. at 767. However, only

Supreme Court holdings are binding on state courts, and “only

those holdings need be reasonably applied.” Clark v. Murphy,

331 F.3d 1062, 1069 (9th Cir. 2003); see also Williams, 529

U.S. at 412.

When applying these standards, this Court must review the

“last reasoned state court decision.” Delgadillo v. Woodford,

527 F.3d 919, 925 (9th Cir. 2008); Avila v. Galaza, 297 F.3d

911, 918 (9th Cir. 2002). Here, the California Supreme Court

denied Rodgers’ Sixth Amendment claim without issuing a

reasoned decision. Therefore, the August 2005 decision of the

California appellate court, denying Rodgers’ Sixth Amendment claim on direct review, is the last reasoned decision of

a California court, and the decision we must review.

ANALYSIS

With these principles in mind, we now turn to Rodgers’

challenge to the state court’s ruling on his Sixth Amendment

5228 RODGERS v. MARSHALL
claim, which requires this Court to answer three specific questions. First, whether the pre-appeal time period for filing a

motion for new trial is a “critical stage” under “clearly established federal law;” if so, then whether denying a request for

counsel at that stage, because a defendant previously waived

his right to trial counsel, is a violation of “clearly established

federal law;” and, if so, whether the California appellate court

decision was “contrary to, or involved an unreasonable application of” clearly established law.

A Post-Verdict New Trial Motion is a “Critical Stage”

[1] The Supreme Court’s Sixth Amendment jurisprudence

has long recognized that a defendant’s right to counsel is a

fundamental component of our criminal justice system. See

Iowa v. Tovar, 541 U.S. 77, 80-81 (2004); United States v.

Cronic, 466 U.S. 648, 653-54 (1984). Indeed, “[w]ithout the

aid of counsel, a defendant may be unable to prepare an adequate defense and though ‘he be not guilty, he faces the danger of conviction because he does not know how to establish

his innocence.’ ” Robinson v. Ignacio, 360 F.3d 1044, 1056

(9th Cir. 2003) (quoting Powell v. Alabama, 287 U.S. 45, 69

(1932)). For that reason, the right to counsel, which originated

as a trial right, has been extended by the Supreme Court to

various “critical stages,” which the Court defines as any

“stage of a criminal proceeding where substantial rights of a

criminal accused may be affected.” Mempa, 389 U.S. at 134.

[2] Although the Supreme Court has provided specific

examples of “critical stages” under the Sixth Amendment, it

has never squarely addressed whether a post-verdict motion

for new trial is one of those stages. E.g., Estelle v. Smith, 451

U.S. 454, 474 (1981) (psychiatric interviews); Mempa, 389

U.S. at 134 (sentencing); United States v. Wade, 388 U.S.

218, 224-25 (1967) (pretrial line up); White v. Maryland, 373

U.S. 59, 60 (1963) (preliminary hearings); Douglas v. California, 372 U.S. 353, 355-56 (1963) (appeals). However, the

Supreme Court’s “silence on this particular issue need not

RODGERS v. MARSHALL 5229
prevent us from identifying and applying the [Court’s] general

governing principles to the case at hand.” Ignacio, 360 F.3d

at 1056-57. As explained in Ignacio, “rules of law may be

sufficiently clear for habeas purposes even when they are

expressed in terms of a generalized standard rather than as a

bright-line rule.” Id. at 1057 (quoting Williams, 529 U.S. at

382 (opinion of Stevens, J.)2). Some of our sister circuits have

likewise recognized that AEDPA encompasses more than

“bright-line rules” laid down by the Supreme Court. See, e.g.,

Taylor v. Withrow, 288 F.3d 846, 850 (6th Cir. 2002) (“The

[Supreme] Court has made clear that its relevant precedents

include not only bright-line rules but also the legal principles

and standards flowing from precedent.”); Hart v. Attorney

General of Florida, 323 F.3d 884, 893 n.16 (11th Cir. 2003).

This Circuit recognizes that, because of AEDPA, we “can

no longer reverse a state court decision merely because that

decision conflicts with Ninth Circuit precedent on a federal

Constitutional issue.” Duhaime v. Ducharme, 200 F.3d 597,

600 (9th Cir. 2000). For that reason, Rodgers misplaces his

reliance on this Court’s opinion in Menefield v. Borg, which

held that a post-verdict motion for a new trial is a “critical

stage” of prosecution under the Sixth Amendment. 881 F.2d

696 (9th Cir. 1989). However, as discussed above, Ninth Circuit precedent “may be persuasive authority for purposes of

2The language quoted in Ignacio is taken from Part II of Justice Stevens’ opinion in Williams, which was joined only by four justices. A

majority of the Court instead joined Part II of Justice O’Connor’s opinion,

which disagreed with Justice Stevens’ “erroneous interpretation” of

AEDPA due to his failure to “give independent meaning to both the ‘contrary to’ and ‘unreasonable application’ clauses of the statue.” Williams,

529 U.S. at 404. However, we do not interpret Justice O’Connor’s opinion

as inconsistent with that of Justice Stevens regarding AEDPA’s “clearly

established Federal law” requirement. Justice O’Connor specifically

agreed with Justice Stevens that “whatever would qualify as an old rule

under our Teague jurisprudence will constitute ‘clearly established Federal

law’ ” under § 2254(d)(1), with the significant “caveat” that, unlike

Teague, “§ 2254(d)(1) restricts the source of clearly established law to [the

Supreme] Court’s jurisprudence.” Id. at 412. 

5230 RODGERS v. MARSHALL
determining whether a particular state court decision is an

‘unreasonable application’ of Supreme Court law, and also

may help us determine what law is ‘clearly established.’ ”

Duhaime, 200 F.3d at 600. Therefore, when faced with novel

situations, “we may turn to our own precedent, as well as the

decisions of other federal courts, in order to determine

whether the state decision violates the general principles

enunciated by the Supreme Court and is thus contrary to

clearly established federal law.” Ignacio, 360 F.3d at 1057. 

[3] The Supreme Court’s Sixth Amendment doctrine concerning a defendant’s right to counsel is not a bright-line rule.

In United States v. Ash, the Court recognized that the right to

counsel encompassed a “test” which requires an “examination

of the event [at issue] in order to determine whether the

accused required aid in coping with legal problems or assistance in meeting his adversary.” 413 U.S. 300, 313 (1973)

(relying on the “history and expansion of the Sixth Amendment counsel guarantee”). Similarly, in Mempa, the Court

held a “critical stage” involves aspects of the criminal prosecution “where substantial rights of a criminal accused may be

affected.” 389 U.S. at 134. 

There is no doubt a post-verdict motion for new trial is one

of those aspects of the prosecution. As this Court held in

Menefield, “the motion for a new trial is the defendant’s last

opportunity for an unconstrained review on the merits of the

evidence against him.” 881 F.2d at 699. This is so because on

appeal, “both jury conclusions and the factual decisions of the

trial court are either immune from review or treated under a

highly deferential standard.” Id. Not only can counsel ensure

that a defendant’s substantive rights are protected, but counsel

can also utilize his “understanding of legal rules and his experience in presenting claims before a court,” which is ordinarily required for an effective new trial motion. Id. To be sure,

“[t]he presence of trained counsel at this stage insures that the

most favorable arguments will be presented and ‘that the

accused’s interests will be protected consistently with our theRODGERS v. MARSHALL 5231
ory of criminal prosecution.’ ” Id. (quoting United States v.

Wade, 388 U.S. 218, 227 (1967)). 

[4] For those reasons, we were compelled to hold that a

post-verdict new trial motion is a “critical stage” under the

Sixth Amendment. See Menefield, 881 F.2d at 699. In so

holding, we identified and relied solely on Supreme Court

precedent. Id. at 698-99 (citing Mempa, 389 U.S. at 134 and

Ash, 413 U.S. at 315). This fact was recognized in Bell v. Hill,

where we reaffirmed Menefield relied “exclusively on

Supreme Court precedent addressing the Sixth Amendment

right to counsel” in finding that “the right to counsel attaches

to the motion for a new trial stage.” 190 F.3d 1089, 1092 (9th

Cir. 1999).3

The parties to this case argued that a split exists among the

appellate circuits as to whether a post-verdict motion for new

trial is a “critical stage” under the Sixth Amendment. They

are wrong. Upon careful review, every federal circuit that has

addressed whether a post-trial, pre-appeal motion for a new

trial constitutes a “critical stage” has concluded that it does.

See, e.g., McAfee v. Thaler, 630 F.3d 383, 393 (5th Cir.

2011); Kitchen v. United States, 227 F.3d 1014, 1019 (7th Cir.

2000); Williams v. Turpin, 87 F.3d 1204, 1210 & n.5 (11th

Cir. 1996); Robinson v. Norris, 60 F.3d 457, 460 (8th Cir.

1995); Menefield, 881 F.2d at 699; see also Nelson v. Peyton,

3Bell, a case decided under Teague v. Lane, 489 U.S. 288 (1989), is

consistent with the holding in Williams that whatever qualifies as an old

rule under Teague constitutes “clearly established federal law” under Section 2254(d)(1). See Williams, 529 U.S. at 412 But we recognize that Bell

also presents another question, namely, whether Menefield satisfies the

Court’s caveat that “the source of clearly established law” is Supreme

Court jurisprudence. Id. (emphasis added). Though we are persuaded that

Supreme Court jurisprudence was indeed the “source” of Menefield’s rule

that the right to counsel attaches to the motion for a new trial, we sidestep

that question by holding, as discussed infra, that the Supreme Court’s

Sixth Amendment “critical stage” jurisprudence establishes a legal principle that “clearly extends” to the pre-appeal motion for new trial. See Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010). 

5232 RODGERS v. MARSHALL
415 F.2d 1154, 1157 (4th Cir. 1969); Baker v. Kaiser, 929

F.2d 1495, 1499 (10th Cir. 1991) (quoting Nelson, 415 F.2d

at 1157). 

The majority of these courts focus on the timing of the

motion for new trial. For instance, the Fifth, Seventh and

Eighth Circuits, all distinguish between post-trial motions

filed prior to an appeal, which the courts consider “not collateral,” and those filed after an appeal, which are deemed “collateral.” See, e.g., McAfee, 630 F.3d at 393; Kitchen, 227 F.3d

at1019; Robinson, 60 F.3d at 459-60. In addition to timing,

some of these courts focus on the nature of the motion, and

rely on the general policies ensuring effective representation

in our adversary system. See, e.g., Williams, 87 F.3d at 1210.

The parties point to three circuits that appear to have

reached a contrary result; however, those circuits did not

address the specific issue here. See United States v. Tajeddini,

945 F.2d 458, 470 (1st Cir. 1991), abrogated on other

grounds, Roe v. Flores-Ortega, 528 U.S. 470 (2000); United

States v. Lee, 513 F.2d 423, 424 (D.C. Cir. 1975); United

States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). That is,

those circuits did not consider whether the post-trial, preappeal time period for filing a motion for new trial is a “critical stage” under the Sixth Amendment. Instead, those courts

categorized the motions at issue as “collateral” because they

were filed after direct appeals were exhausted, a result consistent with the Supreme Court’s holding that the right to counsel ceases to exist after a defendant’s first appeal. See

Pennsylvania v. Finely, 481 U.S. 551, 555 (1987) (“[T]he

right to appointed counsel extends to the first appeal of right,

and no further.”). We have found no case that holds the preappeal time period is not a “critical stage.”

4

4At least one other circuit has made the same finding. See McAfee, 630

F.3d at 393 (“Every federal circuit court to address the question of

whether the post-trial, pre-appeal time period for making a motion for new

trial is a critical stage has concluded that it is.”). 

RODGERS v. MARSHALL 5233
[5] Accordingly, guided by this “persuasive authority,”

Mendez, 556 F.3d at 767, we conclude that it is clearly established Supreme Court law that a pre-appeal motion for new

trial is a “critical stage” under the Sixth Amendment. This

conclusion is in accord with the Supreme Court’s longstanding recognition that the right to counsel is one of the

most fundamental in our criminal justice system. “Of all the

rights that an accused person has, the right to be represented

by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.” Penson v. Ohio,

488 U.S. 75, 84 (1988). For this reason, examples are legion

where the Supreme Court applied its “critical stages” jurisprudence to particular fact-patterns, including psychiatric interviews, sentencings, pretrial line ups, preliminary hearings,

and appeals. The Supreme Court’s Sixth Amendment “critical

stage” jurisprudence establishes a legal principle that “clearly

extends” to the context of a pre-appeal motion for new trial.

See Murdoch v. Castro, 609 F.3d 983, 992 (9th Cir. 2010). A

contrary conclusion would represent an unreasonable application of that principle. See Williams, 529 U.S. at 407.

Re-Asserting the Right to Counsel After a Faretta

Waiver

Before reviewing the state court’s decision to determine

whether it was contrary to, or involved an unreasonable application of, “clearly established federal law,” we next address

whether a criminal defendant can re-assert the right to counsel

after previously waiving it. 

[6] The state court’s rejection of Rodgers’ claim turned on

the application of the California standard governing the

reappointment of counsel previously waived. Therefore, our

finding that the right to counsel for a new trial motion is

“clearly established” does not end our inquiry. This Court

must also determine whether the denial of Rodgers’ request

for counsel to file such a motion because he previously

5234 RODGERS v. MARSHALL
waived his right to trial counsel was contrary to, or involved

an unreasonable application of, clearly established law.

[7] While the Sixth Amendment’s guarantee of the right to

counsel at all “critical stages” has been long established, the

Supreme Court has also recognized that a criminal defendant

has a “reciprocal constitutional right to ‘proceed without

counsel when he voluntarily and intelligently elects to do

so.’ ” John-Charles v. California, 646 F.3d 1243, 1248 (9th

Cir. 2011) (quoting Faretta v. California, 422 U.S. 806, 807

(1975)). As we have previously acknowledged, “the Supreme

Court has never explicitly addressed a criminal defendant’s

ability to re-assert his right to counsel . . . after a previous

waiver of that right during trial . . . .” Ignacio, 360 F.3d at

1056. However, applying the Supreme Court’s general governing principles described above, we previously determined

it is “clearly established federal law” that a defendant’s reassertion of the right to counsel at a separate, post-trial proceeding cannot be denied simply “on the grounds that the

defendant has previously waived that right.” Id. at 1059. We

abide by our earlier holding.

In Robinson v. Ignacio, a case with strikingly similar facts

to this case, a habeas petitioner alleged the state trial court

should have allowed him to revoke his waiver of trial counsel

and should have appointed counsel when he requested representation for sentencing. Id. at 1056. Recognizing the

Supreme Court’s rule that the right to counsel can be waived,

we held:

Because the right to counsel is so central to our concepts of fair adjudication, we are reluctant to deny

the practical fulfillment of the right—even once

waived—absent a compelling reason that will survive constitutional scrutiny . . . . Therefore, although

we recognize the right to counsel—once waived—is

no longer absolute, we start with the strong presumpRODGERS v. MARSHALL 5235
tion that a defendant’s post-trial request for the

assistance of an attorney should not be refused.

Id. at 1058 (quoting Menefield, 881 F.2d at 700) (emphasis

added). We then emphasized that trial courts have discretion

to deny requests for the appointment of counsel in some

instances, “such as when requests are made on the eve of trial

for purposes of delay.” Id. (citing Menefield, 881 F.2d at 700).

But, there is a “substantial practical distinction between delay

on the eve of trial and delay at the time of a post-trial hearing.” Id. Indeed, “post-verdict continuances [are] far less

likely to ‘substantially interfere with the court’s or the parties’

schedules.’ ” Id. (quoting Menefield, 881 F.2d at 700-01).

Therefore, absent extraordinary circumstances, “a defendant’s

post-trial revocation of his wavier should be allowed unless

the government can show that the request is made ‘for a bad

faith purpose.’ ” Id. (citing Menefield, 881 F.2d at 701). As

explained in Ignacio, the conclusion that a defendant retains

his right to re-assert the right to counsel post-trial is “ ‘foreordained by the Sixth Amendment and Supreme Court precedent.’ ” Id. at 1058 n.7 (citing Bell, 190 F.3d at 1092-93). 

Numerous other federal circuit courts have also held that a

trial court must give due consideration to a request for counsel

at a post-trial proceeding, despite a previous waiver of trial

counsel. See, e.g., United States v. Taylor, 933 F.2d 307, 311

(5th Cir. 1991) (holding trial court violated the Sixth Amendment by refusing to appoint counsel to represent defendant at

sentencing); United States v. Fazzini, 871 F.2d 635, 643 (7th

Cir. 1989) (holding defendant’s express revocation of an earlier waiver of counsel at sentencing requires “at least an

inquiry by the district judge into the defendant’s representional desires”); United States v. Holmen, 586 F.2d 322, 324

(4th Cir. 1978) (holding it was error to not have appointed

counsel at the sentencing stage following the withdrawal of

waiver of trial counsel); Davis v. United States, 226 F.2d 834,

840 (8th Cir. 1955) (holding that a request for counsel prior

5236 RODGERS v. MARSHALL
to sentencing after a wavier of trial counsel requires the court

to inquire whether the waiver has been revoked).

Five federal circuits have interpreted the Supreme Court’s

Sixth Amendment jurisprudence “to mean that the right to

counsel is so integral to the fair administration of our justice

system that a defendant who has waived his right to counsel

may nonetheless re-assert” it; no circuit court has ruled to the

contrary. Ignacio, 360 F.3d at 1059. Given these convergent

holdings, as well as the general principles underlying the

Supreme Court’s Sixth Amendment jurisprudence, it is

“clearly established federal law” that a defendant’s reassertion of the right to counsel at a post-trial proceeding cannot be denied simply “on the grounds that the defendant has

previously waived” it. Ignacio, 360 F.3d at 1059. 

Although we recognize Robinson v. Ignacio as binding on

this Court, we must address a recent case that, at first glance,

calls Ignacio’s holding into question. In John-Charles v. California, this Court applied a narrower interpretation of the

“clearly established” requirement and addressed the appeal of

a habeas petitioner who requested the appointment of counsel

during trial after initially waiving his right to trial counsel.

646 F.3d at 1250-51. As in Ignacio, we observed that the

Supreme Court in Faretta left open the question of “whether

and under what conditions a defendant who validly waives his

right to counsel has a Sixth Amendment right to reassert it

later in the same stage of his criminal trial.” Id. at 1249

(emphasis added). Specifically, we held:

In short, the Supreme Court has not clearly articulated a constitutional right to post-Faretta reappointment of counsel during trial. It has not defined the

standard of review that should apply to trial courts’

handling of such issues. And it has not spoken on

whether a trial court’s error in ruling on a reappointment request is structural or trial error. This silence

RODGERS v. MARSHALL 5237
compels us to defer to the state court’s reasonable

attempts to fill the void.

Id. at 1251 (emphasis added). Rather than overruling Ignacio,

we carefully distinguished it, repeatedly emphasizing that the

claim in John-Charles involved the re-assertion of the right to

counsel during trial — not during a separate, post-trial proceeding. Id. at 1252. In fact, we confirmed that Ignacio “did

not purport to address the question of whether a selfrepresented defendant has a right to reappointment of counsel

once trial proceedings have begun, rather than during a subsequent proceeding.” Id. (emphasis added). 

The narrower interpretation of Section 2254’s “clearly

established” requirement in John-Charles stemmed from two

Supreme Court decisions indicating that its precedent must be

“closely on point” or give a “clear answer to the question

presented” to qualify as “clearly established federal law.” Id.

at 1248 (citing Wright v. Van Patten, 552 U.S. 120, 125

(2008) and Carey v. Musladin, 549 U.S. 70 (2006)). However,

unlike this case, those two cases involved novel situations in

which the Supreme Court was silent. See Wright, 552 U.S. at

125 (finding it was not clearly established law that “counsel’s

participation by speaker phone [in a plea hearing] should be

treated as a ‘complete denial of counsel.’ ”); Carey, 549 U.S.

at 77 (holding there was no clearly established law regarding

the prejudicial effect of spectators’ courtroom conduct on fair

trial rights). Because this intervening Supreme Court authority

defining the scope of AEDPA review is not “clearly irreconcilable” with our decision in Robinson, we are not free to “reject the prior opinion of this court as having been effectively

overruled.” Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.

2003) (en banc).

[8] Ignacio therefore compels our conclusion that it violates clearly established federal law to deny counsel in a posttrial, pre-appeal proceeding simply because the defendant has

previously exercised his right to represent himself. We are not

5238 RODGERS v. MARSHALL
persuaded that Rodgers’ claim differs from that of the petitioner in Ignacio merely because it deals with a new trial

motion rather than sentencing. In all material aspects, Rodgers’ claim is indistinguishable from that in Ignacio, in which

we focused not on attributes inherent in sentencing proceedings, but rather on the basic characteristics present in all posttrial proceedings. In fact, a motion for new trial and sentencing are the main elements of a post-trial proceeding. For this

very reason, we previously recognized:

It is not surprising that a criminal defendant, having

decided to represent himself and then having suffered a defeat at trial, would realize that he would be

better served during the remainder of the case by the

assistance of counsel. A criminal defendant may initially assert his right to self-representation for reasons that later prove unsound. The accused may

doubt the willingness of an appointed attorney to

represent his interests. More often, the accused may

have a baseless faith in his ability to mount an effective defense. The lure of self-representation may,

however, exact a significant price; lost at trial, the

defendant may miss important opportunities and

even create gaping holes in his own case. The

accused has little recourse against the failings caused

by his own inartfulness.

Menefield, 881 F.2d at 700 (emphasis added). Indeed, forcing

criminal defendants to stumble through post-trial proceedings

— sentencings or otherwise — “serves neither the individual

nor our system of adversarial justice well.” Id.

The California State Court’s Decision

Having identified the “clearly established federal law” that

governs Rodgers’ Sixth Amendment claim, we review the

state court’s decision to determine whether it was contrary to,

or involved an unreasonable application of, that law. 

RODGERS v. MARSHALL 5239
Rodgers informed the trial court he wished to file a motion

for new trial immediately following the guilty verdict. At that

time, Rodgers requested the reappointment of counsel, but the

trial court denied Rodgers’ request, holding: 

We aren’t doing anything like that right now, Mr.

Rodgers. If you have some request that you want to

make a motion for something, I expect that you will

do that and you will serve it, and you will file it, we

will take it up at that time.

A month later, Rodgers again requested counsel for perfecting a new trial motion, this time in a written motion. The trial

court once more denied Rodgers’ request, and the following

exchange occurred:

RODGERS: Your Honor, also, if you are going to

deny counsel — 

COURT: You are not going to get counsel, Mr.

Rodgers. You made this election to

represent yourself. Everybody tried to

talk you out of it at the time. You

insisted you wanted to do it. You are

doing it. We aren’t going to substitute

in an attorney at this time.

In addressing the trial judge’s denial of Rodgers’ request

for counsel, the California appellate court reasoned:

When, as here, a defendant has exercised his right to

represent himself at trial and later seeks to have

counsel appointed, the court’s decision to deny counsel is reviewed for an abuse of discretion. In determining whether the court abused its discretion, we

consider the “totality of the facts and circumstances.”

5240 RODGERS v. MARSHALL
(internal citations omitted). The court then focused on the fact

Rodgers switched between representation and selfrepresentation at various times throughout the case, and noted

Rodgers’ motion did not include facts or reasons in support.

The court also held Rodgers “exhibited considerable knowledge of both trial tactics and trial procedure,” and ultimately

concluded the trial judge did not abuse his discretion in

declining to appoint counsel for a new trial motion. 

[9] The California appellate court’s decision is indistinguishable from the state court decision we held to be contrary

to clearly established federal law in Ignacio. There, as here,

the state court incorrectly applied an abuse of discretion standard in determining the trial court did not violate the petitioner’s Sixth Amendment rights. As we explained in Ignacio,

and as holds equally true here, this standard permitted the

state court to affirm the denial of the defendant’s timely

request for representation without any basis other than “the

discredited idea that once waived, the right to counsel cannot

be reasserted at sentencing.” Ignacio, 360 F.3d at 1061. It is

“clearly established federal law” that the post-trial motion for

new trial is a “critical stage” that implicates the right to counsel, as is a defendant’s right to re-assert the right to counsel

during post-trial proceedings. For that reason, trial courts cannot deny a defendant’s timely request for representation without a sufficient reason. Here, the state trial court had no such

reason, and to the extent the California appellate court found

such reason, its “decision was based on an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d)(2). 

While Rodgers did not give any reasons for his request for

counsel, it is clear the trial judge rejected his request “based

primarily on the discredited idea that once waived, the right

to counsel cannot be re-asserted . . . .” Ignacio, 360 F.3d at

1061. Regardless, denying Rogers’ request because he failed

to articulate a reason is tantamount to denying his request

because of his prior Farretta waiver. Indeed, the obvious reason Rodgers wanted counsel — even if he did not explicitly

RODGERS v. MARSHALL 5241
state it — was his belief that trained counsel would be better

able to prepare his new trial motion.

[10] Because the trial court’s focus on Rodgers’ waiver of

counsel at trial was inappropriate, we conclude its denial of

Rodgers’ request violated his Sixth Amendment right to counsel. Therefore, the California appellate court’s decision, which

upheld the trial judge’s denial of Rodgers’ request, was “contrary to . . . clearly established federal law.” 

Uncertified Issues

We deny Rodgers’ motion to expand the Certificate of

Appealability pursuant to Ninth Circuit Rule 22-1 and decline

to address the uncertified issues raised in his brief, as Rodgers

has not made a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Cooper-Smith

v. Palmateer, 397 F.3d 1236, 1245 (9th Cir. 2005). 

CONCLUSION

We acknowledge the difficulties that faced the trial judge

in dealing with a defendant who alternated back and forth

between asking for counsel during pretrial proceedings and

then chose to go it alone at trial. However, those difficulties

— while frustrating — must give way to constitutional concerns and a defendant’s right to counsel at all “critical stages”

of his criminal prosecution. 

Accordingly, we hold Rodgers’ Sixth Amendment right to

counsel was violated when the trial court denied his timely

request for representation for a new trial motion based on the

notion that once waived, the right to counsel cannot be reasserted. This holding is consistent with our previous rulings,

as well as those of numerous federal circuit courts applying

clearly established Supreme Court precedent. Furthermore,

due to the fundamental importance of the right to counsel,

Rodgers need not prove prejudice and a harmless error analy5242 RODGERS v. MARSHALL
sis is not required. See Ignacio, 360 F.3d at 1061 (citing

Cronic, 466 U.S. at 659). 

The Supreme Court has instructed that courts have “broad

discretion in conditioning a judgment granting habeas relief.

Federal courts are authorized, under 28 U.S.C. § 2243, to dispose of habeas corpus matters ‘as law and justice require.’ ”

Hilton v. Braunskill, 481 U.S. 770, 775 (1987). Regarding the

right to counsel, we previously held that a habeas remedy

“should put the defendant back in the position he would have

been in if the Sixth Amendment violation never occurred.”

Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003). Moreover, the Supreme Court “has repeatedly stated that federal

courts may delay the release of a successful habeas petitioner

in order to provide the State an opportunity to correct the constitutional violation found by the court.” Hilton, 481 U.S. at

775.

[11] Therefore, in this case, a remand to the California trial

court is appropriate. The district court is directed to remand

this matter to the state trial court for Rodgers to receive effective assistance of counsel for consideration of filing a new

trial motion.

REVERSED and REMANDED.

RODGERS v. MARSHALL 5243