FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM ALLEN MARSHALL, 

Petitioner-Appellant, No. 03-56836

v. D.C. No.

DON TAYLOR, Warden; ATTORNEY  CV-00-12890-PA

GENERAL OF THE STATE OF OPINION CALIFORNIA,

Respondents-Appellees. 

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted

October 8, 2004—Pasadena, California

Filed January 13, 2005

Before: J. Clifford Wallace, Thomas G. Nelson, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Senior Circuit Judge T.G. Nelson

575
COUNSEL

Sean K. Kennedy, Deputy Federal Public Defender, Los

Angeles, California, for the petitioner-appellant. 

Peggie Bradford Tarwater, Deputy Attorney General, Los

Angeles, California, for the respondents-appellees.

OPINION

T.G. NELSON, Senior Circuit Judge: 

William Allen Marshall appeals the district court’s denial

of his writ of habeas corpus for an alleged violation of Faretta

v. California.

1

 We have jurisdiction pursuant to 28 U.S.C.

§ 2253. Marshall asked to represent himself on the morning

of his state court trial. The state trial court denied his request

on the impermissible ground that Marshall lacked the requisite skill and knowledge to represent himself. The California

Court of Appeal affirmed on the proper ground that Marshall’s request was untimely. Marshall now contends (1) that

the court of appeal’s decision was contrary to Faretta and (2)

that its finding of untimeliness was based on an unreasonable

determination of the facts. We disagree. Therefore, we affirm

the district court’s denial of Marshall’s habeas petition. 

I. BACKGROUND 

Prior to jury selection on the morning of Marshall’s state

court trial, Marshall moved for a change of counsel or, in the

alternative, to represent himself pursuant to Faretta. Although

the court expressed concern that Marshall was trying to delay

trial by moving for new counsel, the reason the court ultimately specified for denying his Faretta request was that

1

422 U.S. 806 (1975). 

MARSHALL v. TAYLOR 577
Marshall lacked the skills and understanding necessary to represent himself. Marshall objected to the ruling. A courtappointed attorney represented Marshall during his trial, the

jury convicted him, and he received a sentence of 25-years-tolife. 

On direct appeal, Marshall raised the denial of his Faretta

request. The California Court of Appeal stated that under People v. Windham,

2

 invocation of the right of self-representation

required an unequivocal request made a reasonable amount of

time before trial. The court held that Marshall’s request was

untimely, citing several factors. First, the court noted that

Marshall made his request on the day trial was set to commence and after he had received several continuances of trial.

Second, the court noted that Marshall presented no facts to

show that his last-minute request was reasonable. Accordingly, the California Court of Appeal held that the trial court

properly denied the Faretta request, though on grounds different from those given by the trial court. The California

Supreme Court denied review. 

Having exhausted his state court avenues of redress, Marshall filed a federal habeas petition in the district court. He

argued that the denial of his Faretta request violated the Sixth

Amendment. In reviewing the record,3 the district court noted

that Marshall made at least six appearances in court after

becoming dissatisfied with his appointed counsel without

voicing his concerns. In addition, the district court noted Marshall’s references for his need for more time in the record

when he made his request. In light of these facts, the district

2

560 P.2d 1187, 1191 (Cal. 1977). 

3

In its review of the record, the district court considered facts developed

in the California courts as well as before the magistrate judge. Because we

should judge the reasonableness of the state court’s finding of untimeliness by the facts that were in the state court record, see 28 U.S.C.

§ 2254(d)(2), our decision rests solely on the facts developed in the California state courts. 

578 MARSHALL v. TAYLOR
court concluded that the California Court of Appeal properly

denied Marshall’s request as untimely because the denial was

based on neither an unreasonable application of Supreme

Court precedent nor an unreasonable interpretation of the

record. Consequently, the district court denied Marshall’s

petition. 

Marshall appeals the district court decision arguing (1) that

the California Court of Appeal’s decision was contrary to

Faretta and (2) that its factual finding of untimeliness was

based on an unreasonable determination of the facts. We conclude that the California Court of Appeal properly complied

with Supreme Court precedent when it affirmed the trial court

based on untimeliness grounds. Furthermore, we conclude

that because the record supports the court of appeal’s affirmance, the decision rested on a reasonable determination of

the facts. We therefore affirm the district court’s denial of

Marshall’s habeas petition. 

II. STANDARD OF REVIEW 

We review de novo a district court’s decision to grant or

deny a petition by a state prisoner for a writ of habeas corpus.4

“In conducting our review, we look to the last reasoned statecourt decision.”

5

III. ANALYSIS 

Marshall is entitled to habeas relief only if the California

Court of Appeal’s decision was “contrary to . . . clearly established Federal law, as determined by the Supreme Court of

the United States,”

6

 or if the decision “was based on an unrea4Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). 

5

Id. In this case, because the California Supreme Court denied review,

we review the court of appeal’s decision. 

6

28 U.S.C. § 2254(d)(1). Under 28 U.S.C. § 2254(d)(1) a habeas petitioner is also entitled to relief if a state court’s decision was an unreasonable application of clear Supreme Court precedent. However, Marshall has

not argued this possible ground for relief. Accordingly, we do not discuss

it. 

MARSHALL v. TAYLOR 579
sonable determination of the facts in light of the evidence

presented in the State court proceeding.”

7

A. The California Court of Appeal’s decision was a

consistent application of clearly established

Supreme Court law

The only definitive source of clearly established federal law

under 28 U.S.C. § 2254(d) is Supreme Court precedent existing at the time of the state court’s decision.8

 Supreme Court

precedent includes not only the bright-line rules it establishes

but also the legal principles and standards flowing from them.9

[1] Supreme Court precedent regarding the permissible timing of a Faretta request is scarce. No Supreme Court case has

directly addressed the timing of a request for selfrepresentation. However, the holding in Faretta indirectly

incorporated a timing element.10 In Faretta, the Court mentioned that Faretta’s request was “[w]ell before the date of

trial,”11 and “weeks before trial.”

12 It then held that “[i]n forcing Faretta, under these circumstances, to accept against his

will a state-appointed public defender, the California courts

deprived him of his constitutional right to conduct his own

defense.”13 Thus, the Supreme Court incorporated the facts of

7

28 U.S.C. § 2254(d)(2). 

8Williams v. Taylor, 529 U.S. 362, 412 (2000); Clark v. Murphy, 331

F.3d 1062, 1069 (9th Cir. 2003). 

9

See Bradley v. Duncan, 315 F.3d 1091, 1101 (9th Cir. 2002). 

10The Court also mentioned the timing of the self-representation request

in McKaskle v. Wiggins, 465 U.S. 168, 172 (1984) (detailing that the

defendant’s request was renewed the day before trial); however, the timing

of the request was not raised as an issue in that case. See Wiggins v.

Estelle, 681 F.2d 266, 268 (5th Cir. 1982), overruled by McKaskle, 465

U.S. 168. 

11Faretta, 422 U.S. at 807. 

12Id. at 835. 

13Id. at 836 (emphasis added). 

580 MARSHALL v. TAYLOR
Faretta into its holding. Accordingly, the holding may be read

to require a court to grant a Faretta request when the request

occurs “weeks before trial.” However, the holding does not

define when such a request would become untimely. 

Moore v. Calderon14 acknowledged this reading of Faretta.

In Moore, we determined that a timeliness element in a

Faretta request is “clearly established Federal law, as determined by the Supreme Court.”

15 The Ninth Circuit did not

define the timing element prescribed by Supreme Court precedent, however. It merely acknowledged it. Thus, after Moore,

we know that Faretta clearly established some timing element, but we still do not know the precise contours of that

element. At most, we know that Faretta requests made

“weeks before trial” are timely. 

[2] Because the Supreme Court has not clearly established

when a Faretta request is untimely, 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.16

In Windham, the California Supreme Court held that a Faretta

request must be made a reasonable amount of time before trial.17

14108 F.3d 261, 265 (9th Cir. 1997), abrogated on other grounds by

Williams, 529 U.S. 362, as recognized by Baker v. City of Blaine, 221 F.3d

1108, 1110 n.2 (9th Cir. 2000). 

15Id. (internal quotation marks omitted). As a general rule, “one threejudge panel of this court cannot reconsider or overrule the decision of a

prior panel.” United States v. Gay, 967 F.2d 322, 327 (9th Cir. 1992).

Thus, when a prior three-judge panel has held that a principle is clearly

established Supreme Court law, we are bound by the earlier panel’s decision. 

16See Williams, 529 U.S. at 412-13. 

17Windham, 560 P.2d at 1191. The Ninth Circuit has held that a Faretta

request made before the jury is impaneled is timely unless it was a tactic

to secure delay. Armant v. Marquez, 772 F.2d 552, 555 (9th Cir. 1985).

However, “[o]ur own independent consideration of the [timing] issue is

neither relevant, nor necessary to dispose of the question presented.”

Clark, 331 F.3d at 1069. 

MARSHALL v. TAYLOR 581
The California Court of Appeal applied the Windham rule in

this case to find Marshall’s request, made on the morning of

his trial, untimely. Because the timing of Marshall’s request

fell well inside the “weeks before trial” standard for timeliness established by Faretta, the court of appeal’s finding of

untimeliness clearly comports with Supreme Court precedent.

Therefore, the California Court of Appeal could, and did,

properly conclude that Marshall’s request was untimely.

Accordingly, we conclude that Marshall is not entitled to

habeas relief on the basis that the California Court of

Appeal’s decision based on untimeliness was contrary to clear

Supreme Court precedent. 

B. The California Court of Appeal’s decision was

based on a reasonable determination of the facts

[3] The California Court of Appeal was free to affirm the

trial court on any basis supported by the record.18 In this case,

the record supports the court of appeal’s affirmance on

untimeliness grounds. Marshall made his request to represent

himself on the day his trial was to commence and after several

continuances of his trial. Moreover, Marshall presented no

facts to show that his last-minute request was reasonable.

Thus, he could have made his request much earlier than the

day of trial. These unrebutted facts19 provide clear support for

the California Court of Appeal’s decision that Marshall’s

Faretta request was untimely.20 Therefore, Marshall is not

18See Hamilton v. Groose, 28 F.3d 859, 862 n.3 (8th Cir. 1994) (stating

that where “the state court record fairly support[ed] the [state appellate

court’s] finding that [defendant] did not unequivocally invoke his right to

represent himself,” it did not matter that state trial judge, in denying

Faretta request, “expressed his concerns about [defendant’s] ability to represent himself”). 

19We must accept the court of appeal’s factual determinations as correct

unless Marshall rebutted them with clear and convincing evidence. 28

U.S.C. § 2254(e)(1). Marshall did not do so. 

20This is not a case where timeliness “could not have been, and was not

in fact, the reason for the trial court’s decision.” Bribiesca v. Galaza, 215

582 MARSHALL v. TAYLOR
entitled to habeas relief on the ground that the court of

appeal’s decision was based on an unreasonable determination of the facts. 

IV. CONCLUSION 

Marshall’s arguments that (1) the California Court of

Appeal’s decision was contrary to Faretta and that (2) the

court’s finding of untimeliness was based on an unreasonable

determination of the facts are unpersuasive. In the absence of

clear Supreme Court precedent defining when a Faretta

request becomes untimely, the California Court of Appeal

was free to determine that under California’s Windham rule,

Marshall’s request on the day of trial was untimely. The court

of appeal did so. Thus, the court of appeal’s affirmance rested

on state law consistent with Supreme Court precedent. Additionally, the record clearly supported the court of appeal’s

finding of untimeliness. Thus, the court of appeal’s affirmance rested on a reasonable determination of the facts. As

a result, Marshall has not established grounds for habeas relief

pursuant to 28 U.S.C. § 2254(d). Therefore, we affirm the district court’s denial of Marshall’s habeas corpus petition.

AFFIRMED. 

F.3d 1015, 1020 (9th Cir. 2000) (emphasis added). Nor is it a case where

“nothing in the record suggests that the trial court would have denied the

motion on timeliness grounds had it believed that [Marshall] was competent to represent [him]self.” Van Lynn, 347 F.3d at 741. 

MARSHALL v. TAYLOR 583