NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES R. W. MITCHELL, 

Petitioner-Appellant, 

 v. 

CSP CORCORAN; DAVE DAVEY, 

Warden, 

Respondents-Appellees.

No. 16-17057 

D.C. No. 3:15-cv-04919-VC 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Vince Chhabria, District Judge, Presiding

Argued and Submitted December 7, 2021

San Francisco, California

Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.

James Mitchell, a California state prisoner, appeals the district court’s denial 

of his habeas petition under 28 U.S.C. § 2254. We review a district court’s denial 

of a § 2254 petition de novo. Carter v. Davis, 946 F.3d 489, 501 (9th Cir. 2019). 

Mitchell’s petition is governed by the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA), which bars relief unless the state court’s decision “was contrary 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

DEC 16 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

to, or involved an unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States,” or was “based on an 

unreasonable determination of the facts.” 28 U.S.C. § 2254(d). Here, the California 

Court of Appeal’s decision on direct appeal addressed Mitchell’s claims and is the 

operative decision for AEDPA purposes. See Wilson v. Sellers, 138 S. Ct. 1188, 

1191–92 (2018). We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

1. The state court reasonably concluded that Mitchell was not improperly 

denied the right of self-representation under Faretta v. California, 422 U.S. 806 

(1975). A Faretta request must be “unequivocal, timely, and not for purposes of 

delay.” Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007). In Faretta, the 

Supreme Court held that a request made “weeks before trial” and “[w]ell before the 

date of trial” was timely. 422 U.S. at 807, 835. But because Faretta “does not define 

when such a request would become untimely,” we have held that “other courts are 

free to do so as long as their standards comport with the Supreme Court’s holding 

that a request weeks before trial is timely.” Marshall v. Taylor, 395 F.3d 1058, 1061 

(9th Cir. 2005) (quotations omitted).

It therefore did not contradict clearly established federal law for the state court 

to conclude that Mitchell’s request to represent himself was untimely when Mitchell 

made the request only several days before trial was to begin. See id. (“Faretta clearly 

established some timing element, but we still do not know the precise contours of 
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that element. At most, we know that Faretta requests made ‘weeks before trial’ are 

timely.”). The state court could also reasonably conclude that Mitchell’s request to 

represent himself would be unduly prejudicial and disruptive to the trial considering 

that Mitchell also requested four additional weeks for trial preparation in a case that 

involved lengthy past continuances, where the trial court had already convened 

approximately 1,000 jurors, and where elderly witnesses were set to testify. See 

United States v. Flewitt, 874 F.2d 669, 679 (9th Cir. 1989) (Defendants may not 

“attempt[] to delay their trial on the merits by asserting their right to proceed pro se 

in an untimely manner . . . .”). 

2. We reject Mitchell’s contention that his trial counsel was 

constitutionally ineffective at sentencing. To establish ineffective assistance of 

counsel, Mitchell must demonstrate both deficient performance and prejudice under 

Strickland v. Washington, 466 U.S. 668, 687 (1984). To show prejudice, Mitchell 

must demonstrate that there is “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. “The likelihood of a different result must be substantial, 

not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112 (2011) (citing 

Strickland, 466 U.S. at 693). In addition, under AEDPA, “it is not enough to 

convince a federal habeas court that, in its independent judgment, the state-court 

decision applied Strickland incorrectly. Rather, [Mitchell] must show that the 
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[court] applied Strickland to the facts of his case in an objectively unreasonable 

manner.” Bell v. Cone, 535 U.S. 685, 699 (2002) (citation omitted).

Here, assuming Mitchell’s counsel acted deficiently, Mitchell has not 

demonstrated prejudice under AEDPA’s deferential standard of review. While 

Mitchell argues that his counsel’s failure to make a statement at sentencing means 

that prejudice must be presumed under United States v. Cronic, 466 U.S. 648 (1984), 

no Supreme Court decision clearly establishes that an attorney’s decision not to 

make a statement at sentencing is tantamount to a total denial of counsel. Woods v. 

Donald, 575 U.S. 312, 318 (2015) (per curiam) (noting that the “precise contours” 

of Cronic are unclear). Therefore, the state court reasonably did not presume 

prejudice.

And Mitchell cannot otherwise show prejudice. The trial court had limited 

sentencing discretion, especially on the murder conviction. As to the kidnapping 

count, the California Court of Appeal reasonably explained that “[t]he reasons for 

imposing the . . . consecutive sentences were well articulated in the probation report 

and would have been difficult to refute.” The facts also show that Mitchell’s 

kidnapping of his child included a lengthy series of events following the murder

involving a different victim, justifying a consecutive sentence under Rule 4.425 of 

the California Rules of Court. It was therefore not objectively unreasonable for the 

state court to conclude that any statement by Mitchell’s counsel at sentencing was 
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unlikely to have changed the result.1

AFFIRMED.

1 We deny Mitchell’s request to expand the certificate of appealability to encompass 

two uncertified claims because Mitchell has not made a “substantial showing of the 

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Miller-El v. 

Cockrell, 537 U.S. 322, 327 (2003). We further deny as moot Mitchell’s pro se 

motion entitled “Motion of Inquiry/Requesting Instructions.”