NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY EUGENE ESTEP, 

Petitioner-Appellant, 

 v. 

KEITH YORDY, Warden, 

Respondent-Appellee.

No. 18-35196 

D.C. No. 1:15-cv-00530-CWD 

MEMORANDUM*

Appeal from the United States District Court

for the District of Idaho

Candy W. Dale, Magistrate Judge, Presiding

Argued and Submitted November 8, 2019

Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District 

Judge.

Timothy Estep (“Estep”) appeals the district court’s denial of his petition for 

writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

We granted a certificate of appealability as to whether the state trial court 

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

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Gregory A. Presnell, United States District Judge for 

the Middle District of Florida, sitting by designation.

FILED

DEC 20 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-35196 

violated Appellant’s constitutional rights when it denied his request for 

self-representation under Faretta v. California, 422 U.S. 806 (1975). Under the 

Antiterrorism and Effective Death Penalty Act, “‘relief may be granted only if the 

state court decision was contrary to, or involved an unreasonable application of, 

clearly established Federal law, as determined by the Supreme Court of the United 

States,’ or if the state court decision rests on ‘an unreasonable determination of the 

facts in light of the evidence presented in the State court proceeding.’” Tamplin v. 

Muniz, 894 F.3d 1076, 1082 (9th Cir. 2018) (quoting 28 U.S.C. § 2254(d)(1), (2)).

We review the “last reasoned state court opinion,” here, the decision of the Idaho 

Court of Appeals. Id. 

At a hearing in state court on June 9, 2011, Appellant made what appeared to 

be a request for self-representation. Rather than proceed with a Faretta colloquy, the 

Court was concerned about Appellant’s ability to represent himself and ordered a 

competency evaluation.

The Court’s concern with Appellant’s competence to represent himself 

continued until a hearing on November 26, 2012, when Appellant’s counsel 

informed the Court, in Appellant’s presence, that Appellant did not want to proceed 

pro se. On the morning of trial two weeks later, Appellant requested that he be tried 

in absentia, stating “I’ll trust [counsel’s] abilities to defend me.”

Appellant appealed his conviction to the Idaho Court of Appeals, arguing that 
3 18-35196 

the trial court denied him his constitutional right to self-representation. In denying 

his appeal, the appellate court found that Appellant’s initial request to proceed pro 

se was equivocal, and alternatively that prior to trial he waived and abandoned his 

request to proceed pro se. Appellant then appealed to the Idaho Supreme Court, 

which denied his petition for review in a summary order. On habeas review in federal 

court, the district court held that the Idaho Court of Appeals reached an objectively

reasonable decision on the self-representation issue. 

Appellant challenges the state court’s finding that the June 9, 2011 

self-representation request was equivocal. Appellant also contests the state court’s 

determination that he subsequently waived or abandoned his Faretta right and the 

finding that he was not competent to represent himself. Regardless of whether the 

June 9, 2011 request was equivocal, Appellant waived that request during the 

November 26, 2012 hearing. At that hearing, Appellant’s attorney informed the trial 

court that Appellant did not want to proceed pro se, but instead wanted another 

attorney. The appellate court determined that Appellant’s failure to refute the 

statement withdrew his pending request to proceed pro se and waived any previous 

requests made up to that point.

1

1 The court further held that Appellant abandoned his subsequent request to 

proceed pro se by failing to pursue it when the trial court addressed pretrial matters 

and instead endorsed his attorney’s ability to adequately represent him in his 

absence.
4 18-35196 

The Idaho court did not make an unreasonable determination of the facts 

regarding Appellant’s waiver of his Faretta request. “[O]nce a defendant has stated 

his request clearly and unequivocally and the judge has denied it in a[n] equally clear 

and unequivocal fashion, the defendant is under no obligation to renew the motion.” 

United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994) (citing Brown v. Wainwright, 

665 F.2d 607, 612 (5th Cir. 1982)). However, when a request to proceed pro se has 

not been clearly and conclusively denied and the question of self-representation is 

left open for possible further consideration, the right may be waived through 

subsequent conduct. Brown, 665 F.2d at 611. Accordingly, since a Faretta request 

can be subsequently waived, and since Appellant’s conduct indicated he had 

abandoned his request to proceed pro se, the Idaho court did not violate clearly 

established federal law.

AFFIRMED.