F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

D W I G H T T A M P L I

N , J R ., Petitioner-Appellant

,

v.

W I L L I A M M U

N I Z , W arden, Respondent-Appellee. No. 16-15832

D.C. No. 1:12-cv-01633-AW I -SKO

OPI NI ON

A ppeal from the United States District Court for the Eastern District of California Anthony W . I shii, District J udg e, Presiding

Arg ued and Submitted October 16, 2017 San F rancisco, California

F iled J uly 6, 2018

B efore: Michael Daly

Hawkins and W illiam A. F letcher, Circuit J udg es, and J o h n A. Kronstadt, * District J udg e.

Opinion by J udg e W . F letcher; Dissent by

J udg e Hawkins

* T h e Ho n o rab le J o h n A

. Kro n stad t, Un ited States District J u d g e f or th e Cen tral District o f

Calif o rn ia, sittin g b y

d esig n atio n

.T A M P L I N V

. M U N I Z 2

SUMMARY * *

Habeas Corpus

The panel reversed the district court’s judg ment deny ing California state prisoner Dwig ht Tamplin, J r.’s petition for a writ of h abea s c o r

pus, a nd remanded with instructions to g rant the writ, in a case in which Tamplin arg ued that his 25-
y ears-to-life Three Strikes sentence was obtained in violation of his Six th Amendment r ig ht under Fa r etta v. California

, 422 U.S. 806 (1975).

Reviewing under t h e Antiterrorism and E f fective Death Penalty Act th e s tate habeas court’s decision that T amplin’s Faretta claim was meritless, the p a n el held that t h e state court’s two conclusions—that Tamplin’s request to represent himself was equivocal, and that Tamplin wai ved his Six th Amendment r ig ht by not continuing to object af t er a public defende r was reappointed to represent him—were clearly contrary to established Supreme Court law.

Reviewing de novo, the panel held that Tamplin’s request to represent himself was timely ; that Tamplin’s ap p el l a te counsel rendered constitutionally defici e n t performance b y failing to raise Tamplin’s compelling Faretta claim; and that Tamplin was prejudiced by counsel’s deficient performance.

Dissenting

, J udg e H awkin s wrote that Tamplin h as not established that the state court’s decision w as i n d irect a nd irreconcilable c onflict with Supreme C o u r t p r e cedent, and has

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.T A M P L I N V

. M U N I Z 3

not shown that the state court r uling apply ing Faretta was so lacking in justification that there w as an e rror w ell u nderstood and comprehended in ex isting law bey ond any possibility for fairminded disag reement.

COUNSEL

Katherine L

. Hart (arg

u e d ), F resno, California, for PetitionerAppellant.

David Andrew Eldridg e (arg ued), Deputy Attorney General; Tami M. K

renz in, Supervising Deputy Attorney General; Michael P. F a

rrell, Senior Assistant Attorney General; X avier B ecerra, Attorney General; O ffice of the Attorney G en eral, Sacramento, California; for Respondent-Appellee.T A M P L I N V

. M U N I Z 4

OP INION

W

. F L ETCHER, Circuit J udg e:

Dwig ht Tamplin appeals the d enial of his petition for a writ of h abeas corpus. He arg ues that his twenty -five-y earsto-life sentence imposed u n der California’s Three Strikes sentenci n g law was obtained in violation of his Six th Amendment rig ht under Faretta v. California , 422 U.S. 806 (1975), and that he is e ntitl e d t o r e lief under 28 U .S.C. § 2254. W e ag ree.

I . F actual and Procedural B ackg round

On May 2 1, 2004, a C alifornia Hig hway Patrol officer stopped Tamplin and three othe r African-American men for

a traffic v iolation. The officer called for backup after h e smelled burned marijuana in the car and observed indicia o f
g ang affiliation. Upon searching the car, officers discovered a .38 caliber h andg un and a .357 caliber revolver. People v. Tamplin

, N o

. F050103, 2 007 W L 1365988, at *1 (Cal. Ct. Ap p

. M a y 10, 2007). Tamplin was charg ed in state court with possession of a firearm by a felon. Cal. Pen. Code § 12021(a)(1). He was also c h arg ed with a street g ang enhancement u nder Cal. Pen. Code § 186.22(b)(1), as well a s four “ strikes” based on his prior conviction for four criminal offenses on May

28, 1991.

Over the course of the nex t nine months, Tamplin c y cled throug h three appointed attorney s. On F ebruary 1 0, 2005, while represented by p ublic d efender Kathleen Hall, Tamplin successfully moved to represent himself. Tamplin asked for

a p p o i n tment of “assistant counsel” five day s later, but his request was denied. He represented himself without incidentT A M P L I N V

. M U N I Z 5

f o r the nex t four months. Trial was scheduled to beg in o n J u l y 14, 2005, five months after Hall had last represent e d him.

On J une 22, Tamplin appeared in California Superior Court with privately retained attorney Greg Morris. A minute order shows that Morris re q u e sted a continuance to file a motion to substitute counsel. Two box es on the minute order

are checked. Under the heading “ARRA I G NMENT-VOP,”

a box labeled “Sub in” is checked, wit h t h e n a me “Greg Morris” handwritten in the blank following the b o x

. B elow that, under the heading “MOTI O NS,” a box labeled “Granted” is checked, with the f o l l o w ing handwritten tex t

nex t to it: “Mr. Morris requests a cont on the motion to file a sub into case.” That motion was never file d

, f or two day s la t e r , on J une 24, Morris w as no long er elig ible to practice law. His membership in the state b a r w a s suspended in advance of disciplinary proceeding s t h a t would ultimately end in his disbarment for misappropriation of client funds.

At a J une 30 hearing

, the trial court informed Tamplin that Morris had been suspended from practice and could not represent h im. The c o u rt asked Tamplin how he wish ed to proceed. Tamplin immediately responded tha t he w ished to

c ontinue to represent himself, a nd he completed a second waiver of counsel form.

On J uly 8, the court held a hearing on Tamplin’s request
to continue to represent himself. The court asked Tamplin if he wished “to return to y our status in representing y ourself in this case.” Tamplin stated that he did. The c o urt reviewed the waiver of counsel f

o r m that Tamplin had completed on J une 3 0 and thoroug hly e x p l a i n ed the rig h ts that Tamplin would forfeit. Tamplin co n f i r med that he understood. TheT A M P L I N V

. M U N I Z 6

court stated that it w ould “make an addit i o n a l inquiry

, ” whether T amplin would be prepared for trial which was still set for J uly 14. Tamplin replied, “Nope.”

The court then inquired as to why Tamplin wis h e d to

r e p r e s e n t h i m s e l f

. T a m p l i n r e s p o n d e d

, “ N o t comfortable—I ’m not comfortable w ith any body that’s in the public defender’ s office or any b ody else that’s been hiring [ sic] me. They haven’t been representing me, the y h a v e n ’t filed any thing

, they haven’t done nothing that’s g oing to h elp
my case. I ’m the only one who has filed any thing a nd I ’m the only o n e that h as done a

n y thing that is g o ing to help my c ase. Every body else has done nothing .” The court pointed o ut that Tamplin had hired h is own attorney

. Tamplin ex plained that he had attempted to hire a private attorney because “t h at’s what I felt I needed to do at the time.” Now that it turned out that Morris, whom T amplin had already paid, was n ot available, Tamplin ex plained that he felt that he wa s “ go i ng to g ive my self the best representation without feeling like I didn’t do every

thing that I could to fig ht for me.”

The court ag ain asked Tamplin why h e attempted to retain

a private attorney

. Tamplin responded, “I hired a n attorney at that time

. . . bec a u s e I w a s able to come up with the f unds, but also he h ad insig ht on my case a nd he—he had something that I felt that I really couldn’t do at the time and I was l i k e well—actually

, he w as supposed to b e co-counsel

. . . . [ H] e

was suppos e d t o make the objections or the thing s that I didn’t actually catch a

nd follow as far as following the Rules of Court, that’s what w as su p p o s e d t o be g oing on

. . . . ” After a further e x chang e, Tamplin reiterated, “ I ’ m

r e p resenting me now.” The court c onfirmed that Tamp l i n would not be ready for trial in six day s. Tamplin stated thatT A M P L I N V

. M U N I Z 7

h e would not, because he needed to file more pretri al motions.

The court then held that Tamplin would not be allowed to represent himself. I t st a ted, “I n this case, g iven that he desired counsel less t h an t h ree weeks ag o and hired counsel
to assist him, the court need not make any inquiry other than that, or delve any further as to those rea s o n s why he wanted counsel, b u t obviously h e wanted counsel to do thing s he could not do at trial . . . .” The court stated that it would not permit Tamplin to p roceed pro se , “finding that the timeliness is a substantial factor, along with the e quivocalness and that the court finds t h a t i t is an equivocal demand based on that request for counsel and h iring of counsel on J une the 22nd, 2005.” Tamplin responded, “ [ Y] o u’re g oing to violate my due process rig hts which y ou just d id a nd by deny ing my pro per status, which is—I ’ m g ranted by l a w, a n d y ou’re doing it—” The court cut him off: “You don’t know the law sir.” Tamplin replied, “I don’t have to know it that much to know that y ou are violating my due p rocess r i gh t s, what y ou’re doing now.”

The court g ave Tamplin the c hoice to hire his o wn attorney or to accept a public defender. Tamplin stated, “I told y ou I don’t want no public d e fe nder, none of the ones t h a t y o u a

re g oing to a

ppoint. I t is g o ing to be a conflict.” The court a sked if T a m p l i n could afford a private attorney

. He responded, “W ell, if y ou o rd e r my money back [ from M o r r is]

, I can hire one.” At the end of the J uly 8 heari n g, after tel l i ng Tamplin that it lacked the authority to order Morris to return the money so he could hire private counsel, the court denied h is request to r epresent h imself and reappointed public defender Hall.T A M P L I N V

. M U N I Z 8

The cou r t c o ntinued the trial for six months. T h e state habeas court l a t e r w rote that the court “continued the trial date to g ive petitioner’s n ew c ounsel time to prepare.” The trial c ourt’s action on J uly 8 makes clear that, no matter what happened, the trial was almost certainly not g oing to beg in on J uly 14. T amplin had indicated that he needed a continuance. His re-appointed counsel, Hall, also needed a continuance.

At trial, T amplin was convicted under California’s felonin-possession statute and was sentenced to forty -five y ears to life under California’s Three Strikes sentencing law. On direct appeal, the Court of Appeal a ffirmed his conviction but reduced his sentence to twenty -five y e ars to life. T amplin’s appointed appellate counsel o n direct appeal f ailed to raise his Faretta claim.

I n a pro se habeas petition to th e C a l i f ornia Superior Court, Tamplin arg ued that his a ppointed app e l l ate counsel

was ineffective for f

ailing to raise h is Farett a c l a i m

. The

s t a t e habeas court held that appellate counsel was not ineffective in failing to r aise the c l a im because T amplin’s Faretta rig hts were not violated. The court based its decision

on two g rounds. F irst, Tamplin had n o t u n equivocally requested to represent h imself: “[ P] etitioner’s h iring of Mr. Morris after the first Faretta moti on had been g ranted indicates that petitioner was not unequivocal in his desire to represent himself. I nstead, it appears that he was simply searching for a compatible att o r n ey

. ” Second, Tamplin h ad waived his Six th Amendment rig ht by acquiescing in the trial court’s denial of his F

aretta request: “Petitioner h ad at least six months after the d enial of the Faretta motion in w hich to object to the appointment of new counsel, but he failed to do so.”T A M P L I N V

. M U N I Z 9

Tamplin filed a habeas petition in the California Court o f Appeal w hich was d enied without c o m m ent. He f iled a habeas p etition in the California Supreme Court, which w a s also denied without comment. Tamplin then filed a h abeas petition in federal district court.

I I . Standard of Review

“W e r ev i e w the district court’s denial of [ a] § 2254 habeas c or

p u s p e tition de novo.” Deck v. Jenkins

, 814 F .3d 954, 977 (9th Cir. 2016).

T h e A ntiterrorism a

n d Effective Death Penalty A c t (“AEDPA”) g o v e r ns this petition. See Lindh v. Murphy

, 521 U.S. 3 20, 322 (1997). “Under AEDPA, ‘[ w] e review the last reasoned state court o pinion[ .] ’ ” Visciotti v. Martel

, 862 F .3d 7 4 9, 7 60 (9th Cir. 2016) ( q u o t i ng Musladin v

. Lamarque
, 555 F .3d 830, 834–35 (9th Cir. 2009)). The last reasoned opinion in this case was the written order of the California Superior Court on state habeas.

W h en a state court adjudicat e s a c laim on the merits, “relief may be g ranted only if the state court decision was

c o n t r ary to, or involved an unreasonable application o f, cl early established F ederal law, as determined by the Supreme Court of the United Stat es , ” o r if the state court decision rests on “an u nreasonable determination of the facts in lig ht of the evidence pres e n t e d i n the State court p r oceeding .” 28 U.S.C. § 2254(d)(1), ( 2). “[ A] state-co u r t decision is c ontrary to [ Supreme Court] precedent if the state court arrives at a conclusion opposite to that reached b y [ the] Court on a question of law

. . . [ or] if the state court confronts f a cts that are materially indisting uishable f rom a r elevant Supreme Court precedent and arrives at [ the opposite] resultT A M P L I N V

. M U N I Z 10

. . . .” W illiams v. Taylor

, 5 29 U.S. 362, 405, 389 ( 2000). A
state court unreasonably applies Supreme Court precedent “if the state court identifies the c orrect g overning leg a l principle from the Supreme Court’s decisions b ut u nreasonably applies that p rinciple to the f

acts o f t h e p r i soner’s case.” Mann v

. Ryan
, 828 F .3d 1143, 1151 (9th Cir. 2016) (quoting W illiams

, 529 U.S. at 413) (internal alterations omitted). “W e may only hold that a state cour t ’s decision was based on an unreasonable determination of the facts if ‘we are convinced that an appellate panel, apply ing the n ormal standards o f appellate r evie w , could not reasonably conclude that the finding is supported by the record.’ ” Murray v

. S c hriro

, 745 F

. 3d 984, 999 (9th Cir. 2014) (quoting Taylor v. Maddox

, 366 F .3d 992, 1000 (9th Cir. 2004)).

“I f we determine

. . . that the a djudicati on of a claim on the merits resulted in a decision contrary to or involving an unreasonable application of clearly established federal law, o r that the state court’s decision w as based on a n unreasonable determination of the facts, w e evaluate t h e c l aim de novo

. . . . ” Hurles v. Ryan
, 752 F .3d 768, 778 (9th Cir. 2014). W e review de n ovo if the state court failed to reach the merits o f a properly

raised issue. Visciotti , 862 F .3d at 760.

I I I

. Discussion

A. Faretta

I n F aretta v. California

, 422 U .S. 80 6
, 807 ( 1975), the Supreme Court he l d that the Six th Amendment g uarantees criminal defendants the rig ht to represent themselves. F aretta

was charg ed with a felony in a California Superior Court. L ike Tamplin, F a

retta was orig inally represented by a public defender. Id

. Also lik e T a mplin, F aretta feared that hisT A M P L I N V

. M U N I Z 11

public defender would not represent him adequately

. Id

. He

ex p lained to the Superior Court th a t h e w ished to represent himself because the public defender’s office se rving his

c o m munity “was ‘very loaded d own with

. . . a heav y c a s e load.’ ” Id. He objected to the p ublic defender’s office specifically

, not to d e f

e nse attorney s in g eneral. I ndeed, F aretta asked three times during his court proceeding s that he be appointed an attorney

other than a public defender. Id. at 810 n .5. The trial court initially g ranted F aretta’s request to represent himself, but not before warning F aretta that he did
not “know [the] g round r

ules” of court procedure. Id. at 808 n.2. L ater, the court r e v o k e d Fa retta’s pro se status after he incorrectly answered its inquiries about the rules of evidence and procedure on voir dire. I d. at 808–09 & n.3.

The Supreme Court held that the State had v iolated F aretta’s Six th Amendment rig h t to repres e nt himself. The Court a cknowledg ed that “ [w] hen a n accused manag es his

own defense, he r elinquishes, as a pur e l y factual manner, many of the traditional benefits associated wit h the rig h t to counsel.” Id. at 835. The Court nonetheless held that when

a criminal defendant—even one lacking in the “skill a nd

ex p erience of a lawy e r”—is “made aware of the dang ers a nd disadvantag e s of self-repre sentation,” he must be p ermitted
to represent himself. Id. “W eeks before trial, F aretta clearly and u nequivo c a l l y d eclared to the trial judg e that he wanted
to represent himself and d id not want counsel. ” I d. “I n forcing F aretta, u nder these circumstances, to accept against his will a state-appointed pu blic defender

, the California
courts deprived him of his constitutional rig h t to conduct his own defense.” Id. a t 836 (emphasis added).T A M P L I N V

. M U N I Z 12

B . Superior Court’s Decision on State Habeas

The Superior Court on state habeas conclude d f o r two

reasons that Tamplin’s Faretta claim w as meritless, and that appellate counsel w as therefor e not ineffective in f a iling to raise it. F irst, the c ourt c oncluded that T amplin’s request to represent himself wa s equivocal. Second, the court concluded that Tamplin w aived his Six th Am e n d m ent rig ht by a cq u iescing in the trial court’s appointment of the public defender to represent him. Bo t h conclusions were clearly contrary to established Suprem e C o u rt law. W e take these conclusions in turn.

1 . Unequivocal Request

The state habeas court concluded that Tamplin’s desire to hire private counsel rendered equ i v ocal his request to represent himself. This c onclusion is c l e a r ly contrary to Faretta

. As we discuss in detail b elow

, T a mplin d id not make a new Faretta request on J une 22 a n d J u l y 8. He h ad been r epresenting himself since F ebru a r y 1 0, and he soug ht only to continue that self-represent a tion. I t may be that the clarity required for an entirely new Faretta request is g reater than for a request to continue an uninterrupte d s e lfrepresentation. However, we need not address that question, for T amplin’s request w as unambig uous under any standard.

A criminal defendant’s unsuccessful a t tempt to hire private c o u n sel does not make equivocal his request to represent himself if the only a lternative to self-representation is rep r esentation by a public defender. This is clear from Faretta itself. F aretta moved t hree times f or the

“ a ppointment of a lawy er other than the public defen d e r , ” clearly indicating that he did not object to being represented.T A M P L I N V

. M U N I Z 13

S e e Faretta
, 422 U.S. at 810 n .5. I ndeed, he wanted to b e represented. His only objection w a s to representation by a p u blic defender. See id. at 807. W hen presented w ith t h e choice of representing himself o r being represente d b y a public defender, F aretta c h o s e to r epresent himself. The Supreme Court held that the state court violated F ar e t ta’s Six th Amendment righ t “ [i] n forcing F aretta

. . . to accept ag ainst his will a state-appointed public defender .” Id. at 836 (emphasis added).

Tamplin’s case i s indisting uishable from F aretta’s. His request to represent h imself rather than be represented by a public defen d e r was unequivocal. When asked on J une 30 how he wi s h e d to proceed w hen he learned that private counsel Morris had b een suspended and could n ot represent him, Tamplin immediately declared his d esire to proceed pro

se , and he e x ecuted on the spot a written w a i v er o f rig hts form. More than a week later, a t the J u ly 8 hearing, h e was strong ly

, even fervently

, committed to sel f- representation. He consistently maintained h is p ositio n throug h a long a nd thoroug h colloquy

. Tamplin ’ s ex chang e with the trial court on J u ly 8 reads like an e x ercise in how many way s a d e f endant can say that he wants to represent himself. I n s u c c e s sion: (1) “ [ Y] ou don’t wish to have cou n s el a ppointed to r epresent y ou? ” “No.” (2) “[ I ] t’s y o u r request to return to y our status in

re p r e s e n t i n g y ourself in this case

. . . ? ” “Yes.” (3) “ I ’ m g oing to represent my self .

. . .” (4) “I have a rig ht to g o pro per at this time. I ’m try i n g t o g o back to pro per .” (5) “ I ’ m g oing to g ive my self the best representation wi t h out feeling like I didn’t do every

thin g t h a t I c o uld to fig ht for me.” ( 6) “I ’m representing me now.” “You’re still r epresented by Mr. Morris.” “All rig ht. Then I ’ll make that request

. ” (7) “IT A M P L I N V

. M U N I Z 14

t o l d y ou I don’t want no p ublic defender, none of the one s that y ou are go i n g to a

ppoint.” Then, immediately after the trial court denied his request, Tamplin twice accused the court of violating his due process rig hts.

Tamplin r ecog niz e d in his colloq u y with the trial court that an attorney could provide assistance in techni c a l a nd procedural matters, b ut that hardly made his request equivocal. Under Faretta
, a d e fe ndant’s “technical leg al knowledg e

. . . [ is] not r ele v an t to an assessment of his knowing e x ercise of the rig ht to defend himself.” Id. a t 836. “A defendant n eed not himself have the skill and ex perience of a lawy e r in or d e r competently and intellig ently to choose self-representation

. . . .” Id. at 835. A defendant’s choice to represe n t h imself necessarily entails a weig hing of pros a nd

cons. F oreg oing an a ttorney will v irtually alway s mean that the defendant will have the responsibility to manag e aspects of trial for which he is ill-equipped

. A defendant may understand these limitations but still p r e fer to represent himself. I n deed, he must acknowledg e his limits in order to waive his rig ht to c ounsel. A Fa retta waiver is not competently made unless the d e f endant understands the “dang ers and d isadvantag es of self-representation.” Id

. Here, Tamplin conceded that there w ere technical a spects of the trial w ith w hich he would necessarily be unfamiliar but still maintained that he was “g oing to g ive my self the best representation without feeling like I d idn’t do every thing that I c ould to f

ig ht for me.” Under Faretta
, the state c o u r t w a s required to respect Tamplin’s w ish, whether or n ot he could “personally

handle” comply

ing with the rules of court.T A M P L I N V

. M U N I Z 15

2. W aiver by Acquiescence

After the state t ri al court denied Tamplin’s request to represent himself on J uly 8, and after Tamplin made clear his objection to the court’s ruling

, Tamplin did n ot object ag ain. T h e state habeas c ourt held that because Tamplin did not obj e ct ag ain, he had waived his Six th A mendment rig ht b y “acquiesc i n g” in the court’s ruling

. T his holding is clearly contrary to Faretta

.

Faretta held, without qualification, that a defendant w ho makes an unequivocal and timely request to r epresent himself has a Six th Amendment rig h t to self-representation, and that

a denial of self-representation in the face of such a request is

a violation o f that rig ht. 422 U.S. at 835

– 3 6

. The Six th Amendment v iolation is complete at the tim e of the court’s denial.

The state habeas court relied on People v

. Rudd

, 63 Cal. App. 4th 620 ( 1998), i n c o n cluding that T amplin’s acquiescence constituted a waiver of his Six t h A mendment claim. The California Court of Appe al h e l d in Rudd that a defenda n t w ho makes a timely and unequivocal request to represent himself can subsequently waive his Six th Amendment r ig ht by acquiescing in counsel’s representation b y f a i l i n g to continue to object. I f the defendant acquiesces and thereby waives his rig ht to self-representation, the Court of Appeal h e l d

, his Six th Amendment rig hts have n ot been violated. Id. at 630–31. T h e Court o f Appeal in Rudd based its acquiescence rule on its reading of Faretta and McKaskle

v. W iggins
, 465 U.S. 1 68, 172 (1984). The state habeas court, rely ing on Rudd

, held that T a mplin had acquiesced in the reappointment of public defender Hall.T A M P L I N V

. M U N I Z 16

The Court of Appeal in Rudd relied on the fo llowing

s e ntence from Faretta : “ U nless the accused has acquiesc e d in such r epresentation, the defense presented is not the defense g uaranteed him by the Constitution, f or, in a very real
sense, it is not his def

en s e

. ” Rudd

, 63 Cal. App. 4th at 630–31 (emphasis omitted) (quoti n g F a retta , 4 22 U.S. at 821). The Rudd court read that sentence in isolation from its
contex t. The contex t in Faretta is as follows:

[ W ] hen a defendant chooses to have a lawy er manag e and present his case, law and tradition
may a llocate to the counsel the power to make binding decisions of trial strateg y in many

areas. This a llocatio n can only be justified, however, by the defendant’s c o n s ent, at the outset, to accept counsel as his representative

. An unwant ed counsel “represents” the defendant only t h r oug h a tenuous a nd unacceptable leg al fiction. Unless the accused has ac q u iesced in such representation
, the d e f e nse presented it n ot the defense
g uaranteed h im by the Constitution, for, in a very real sense, it is not his d efense.

422 U.S. at 820–21 (first, second and third emphases added). This passag e s a y s, unsurprising ly

, that a criminal defendant has “acquiesced in such representation” when h e “c h ooses” “at the o utset, to accept c ounsel as his rep r e s e n t a tive.” The
passag e has n o t h ing to do with a defendant’s behavior a fter he has un equivocally requested to proceed pro se , and a fter the trial court has improperly refused that reques t

. The
p a s sag e cannot be reasonably interpreted to mean tha t a defendant’s failure to continue to object after the trial courtT A M P L I N V

. M U N I Z 17

has violated Faretta constitutes acquiescence in the appointment of a public defender.

I n McKaskle

, the Supre me Court held that the participation o f stand-by counsel is not inconsistent with the Six th Amendment rig ht of a criminal defendant to rep resent himself or herself. I n the case before u s, stand-by counsel is not at issue.

The state habeas court’s conclusion that Tamplin waived his Six th Amendment rig ht by not continuing to object a fter public defender Hall was re-appointed was clearly contrary to Faretta

. 3. Timeliness of Tamplin’s Request

On appeal to us, the State a r g u es t hat Tamplin’s request to represent himself was untimely

.

a . AEDPA Deference or De Novo Decision

A preliminary question is w hether we g ive deference under AEDPA to the state habeas court o n t he question whether Tamplin’s request was timely

, or whether we address that question de novo. Our dissenting c olleag ue contends that we must g ive deference. W e disag ree.

I t i s settled law that we g ive deference to the latest reasoned decision of a state court. Visciotti
, 862 F .3d at 760. However, if the l a s t r easoned decision did not a ddress a properly raised question, we d ecide the question de novo. Id. ; Frantz v. Hazey
, 533 F

. 3d 724, 738 ( 9th Cir. 2008) ( en banc) ( “ W e confine our § 2 254(d)(1) analy sis to the state court’s actual decisions and a

n aly sis.

. . . I ndeed, if we were to deferT A M P L I N V

. M U N I Z 18

to some hy

pothetical alternative rationale when the state court’s actual reasoning evidences a § 2254(d)(1) error, we would distort the purpose o f A EDPA.” (emphasis in orig inal)); cf. Harrington v. Richter

, 5 62 U.S. 86, 98 (2011) (when state c o u r t issues an unreasoned summary order deciding a case on the merits, w e as s u m e that the court resolved questions n ecessa ry t o its decision). T he state habeas court, which provided the last reasoned decision, g ave two r easons f

o r its decision, either o f which, if valid, sufficed
to support i t s result. T h e court d id not need to reach the question whether Tamplin’s request was timely

, and it did not do so.

The state habeas court e x p lained its decision in a fivepag e written order, containing just under four pag es of actual
tex t. The first pag e of tex t recites the pr o cedural h istory o f the case. The second pag e quotes passag e s from California court decisions interpreting Faretta

.

The order then recites the facts as follows:

I n the present case, the pe t i tioner orig ina l ly moved to represent himself in F ebruary of 2 005, and the court g ranted the motion. Then, in J u ne of 2005, petitioner hired Greg Morris to represent h i m

. Mr. Morris apparently substituted into the case on J une 22, 2005.

About one week later, on J uly 8
, 2 0 05, petitioner moved to r eprese nt himself. However, the trial c ourt denied the F aretta motion, finding that the motion was equivocal

an d that “timeliness is a substantial factor”T A M P L I N V

. M U N I Z 19

because the trial date was only about six day s away

. The court then went on to a p point

c o unsel for petitioner a

nd later c ontinued th e trial date to g ive petitioner’s new counsel time
to prepare. The case was not ultimately tried until J anuary of 2006, about six months later.

The nex t parag raph beg ins, “Under these circumstances, the court f

inds that petition er’s rig h t to self-representation

was n ot violated.” That sentence is followed, i n t h e s ame parag raph, by fourteen lines of tex t in which the state h abeas
court held that Tamplin waived h is rig ht to represent himself by acquiescing in the trial court’s ruling

. The nex t p arag raph contains e igh t lines of tex t in which the state habeas court held that Tamplin w as equivocal in his request to represent hi m s e l f

. That parag raph is followed by a final parag raph o f a sing le line stating , “The petition is denied.”

The order thus g ives two clearly a r ticu l a t e d reasons for holding that Tamplin’s S i x t h Amendment r ig ht was not violated. The order nowhere say s that Tamplin made h is selfrepresentation request too late, o r gi v e s that as a reason supporting its holding

. We accordi n gly review de novo the timeliness of Tamplin’s request.

b. Timeliness of Tamplin’s Request

F or the reasons that follow, we c onclude that T amplin’s request to r e p r e s e nt himself was timely

. As just noted, we decide this question de novo, but we would reach the same decision even if we w ere to g ive deference unde r AEDPA. W e reach this decision on two g rounds.T A M P L I N V

. M U N I Z 20

(1) Tamplin Continuously Represented Himself from F ebruary 10 F orward

I t is undisputed that Tamplin made a n u n equ i v o c al request to represent hims e l f o n F e bruary 10, 2005, and that this request was g ranted. I t is also undisputed tha t Morris appeared in the t r i a l court on J une 22; that the minute order for that day states that Morris requested a contin u a nce in order to file a motion to substitute in as counsel; that Morris

never made the motion for which he was g rant e d a continuance o n J une 22; and that o n J une 24 M orris was suspended from practice. B ecause Morris never made the motion for which he was g r anted a continuance, he never legally represented Tamplin in the trial c ourt. I t necessarily f ollows that Tamplin represented himself in the trial co u r t continuously from F e b r

uary 10 onwar d

, a n d that he did not make a n ew request on J une 30 to r epresent himself w hen he learned that Morris had been suspended from practice.

Our d issenting collea gu e contends that Morris was actually substituted in as Tamplin’s counsel. W e disag ree. Our dissenting colleag ue c h a r acteriz e s the minute order o f J une 22 as “ not a p icture of clarity ,” and writes that minute orders “entered by the court on J u n e 3 0 a nd J uly 8 reflect M orris as the defense c ounsel o f record and all parties, including Ta m p l in, proceeded as thoug h Tamplin were

r e p r e sented by counsel (Morris).” Diss. at 28. This is not a full description of the minute orders of J une 30 and J u ly

8.

Greg Morris’s name is preprinted at the top of both minute orders, but the bodies o f the minute orders t ell a different story

. The body of the J une 30 minute order has two handwritten notations. Nex t to the heading “MOTI ONS,” is handwritte n, “Deft requests to g o Pro Per / Crt advises deft.T A M P L I N V

. M U N I Z 21

that a waiver needs to be mad e

. ” B elow that, nex t the headin g “ O T HER,” is handwritten, “Mr. Morris is not elig ible to practice law.” The body of the J uly 8 minute order has several handwritten n o t ations. Under the heading

“ ARRAI GNMENT- V D P
, ” t w o b o xe s l a

b e l e d “ ( R e ) a

p p t

. ” a n d “ADO/” are c hecked, and nex t to the box es is handwritten the

name “K. Hall.” U n der the same heading

, a box labeled “Relieved” is c hecked, and nex t to the box is handwritten the

name “ G. Morris.” B elow t h a t, under the heading “MOTI O NS,” a box labeled “denied” is checked, and nex t to the b o x is handwritten “F aretta mtn (time substantial factor).” F inally

, b elow that, under the h ea d i n g “OTHER” is handwritten “Greg Morris

– u nabl e t o practice law at this time.”

F ar f rom showing that the part i e s treated Tamplin a s “represented by counsel (Morris),” t h e J u n e 30 and J uly 8 minute orders show that the c ourt und er s tood that Tamplin

was not—indeed, could not be—represented by Morris. The J une 30 minute order could not have been cleare r: “Mr. Morris is n ot elig ible to practice l a w.” During the J uly 8 hearing

, the trial court said, “Mr. Tamplin is present and has

ex p ressed a desire [ to represent himself] g iven tha t Mr. Morris is unable to represent him at this time

. . . .” The only
sug g estion in the body of either minute order that Morris ever represented Tamplin in the trial court is the check in the J uly 8 minute order o f the box label e d “ R e lieved.” I n lig ht o f what had come before, that check cannot be reasonably read
to indicate that Morris h ad e v e r s uccessfully moved in the trial court to represent Tamplin.T A M P L I N V

. M U N I Z 22

(2) Timely Request on J une 30

Even if we assume, counterfactually

, that Tamplin made

a new request to represent h imself on J une 30, as dist i nct from a request to c ontinue to represent himself, his request was timely

.

I n the ty pical case of an untimely Faretta request, the defendant is represented by counsel w hen the request is made. I n that circumstance, g r anting a Faretta motion would result in a delay that would n o t o c c u r i f c o unsel were permitted to continue to r epresent the defendant. A F aretta request must t h erefore be made in a timely manner. B ut this is not that ty pical case. O n J une 30, when T a m p l i n i ndicated that he wished to c ontinue to represent himself, he h ad already been representing himself for o ver four and a h alf months. He h ad appeared in the trial court with M o r ris on J une 22 when M o r r i s was g ranted a continuance to make a motion to substitute in as counsel (a motion that was never made), a nd he learned on J une 30 that Morris coul d not represent him. As disc u s sed above, Tamplin indicated unambig uously on J une 30 that he wished to continue to represent himself.

F or purposes of arg ument, we are willing to assume that Tamplin’s request o n J une 30 was a n e w request, but, as we note, this w a s f

ar from the ty

pical F aretta request. W e a

re also willing to as s u me that J uly 14, the formally scheduled da t e , was a realistic trial date, but, as we note, the court

c o n t inued the trial for six months after he denied Tampli n ’s request to represent h imself. On these assumptions, Tamplin made a new request to represent himself on J une 30, ex actly
two weeks before the scheduled trial date of J uly 14. Even on these assumptions, Tamplin’s request was timely

.T A M P L I N V

. M U N I Z 23

I n Moore v. Calderon

, 108 F .3d 261 (9th Cir. 1997), overruled on other grounds in W illiams v. Taylor

, 529 U.S. 362 (2000), we held in a habeas ca s e that a Faretta request made two weeks and two day s before trial was timely

. On the assumption that we should g ive AEDPA deference to the state court decision, we wrote:

I f the state court d ecision in this case was “contrary to” the F ederal law c l e a rly establishe d b y Faretta
, then the writ may properly b e g ranted. I ndeed, the relevant facts is this c a s e are identical to those in Faretta

. L ike F aretta, Moore made his r equest “weeks before trial.”

Id. at 2 65. Under Faretta
, as we have interpreted it in Moore
, Tamplin’s request was timely

.

Even if the state habeas court had relied on untimeliness in deny ing habeas, we would not g ive AEDPA d e fe re nce to that c onclusion. As recounted above, the state court believed that Tamplin made his Faretta req u e s t on J uly 8. I t wrote: “About one week later, on J uly 8, 2005, petitioner moved to represent himself.” T h i s i s a clear factual error. Tamplin requested to represent himself on J une 30, when he learned that Morris had been suspended a nd could not represent him. The hearing on Tamplin’s reques t was o n J u ly 8, but he h ad made the request eig

ht day s earlier.

B u t even if the state habeas court h a d r e lied on untimeliness and even if we w ere to g ive AEDPA d eference,

we w ould interpret Faretta as we did in Moore

. That is, we

w o u l d conclude that the state habeas court reached a r esult clearly contrary to Fare t t a

. See M arshall v. Rodgers

, 569T A M P L I N V

. M U N I Z 24

U.S. 58, 64 (2013) (“[ A] n appellate panel may , in accordance with its usual law-of-the-circuit procedures, look t o circuit precedent to ascertain whether i t has already held that the particular point in issue is c l ea r ly established by Supreme Court precedent

. . . .”). St e n s o n v. Lambert

, 504 F .3d 873, 884 (9th Cir. 2007), on which the dissent relies, contains only
g eneraliz ed observations about Faretta and does not eng ag e with Moore

. I n Marshall v. Taylor

, 395 F .3d 1058, 1061 (9th Cir. 2 005), we discussed Moore approving ly

, in holding that

a request m a d e on the morning of trial was untimely

. I n the

course of o ur discussion, w e wrote, “[ A] f ter Moore
, we know that Faretta c learly established some timing element, but we still d o not know the p recise contours of tha t el e m e nt. At most, we k

no w that F

aretta requests made ‘weeks before trial’ are timely .” Id. Thoug h Burton v. D a vis
, 816 F .3d 1132, 1141 (9th Cir. 2 016), wa s a pre-AEDPA case, we

a n aly z ed B urton’s claim by asking

, first, if the state co u r t violated clearly established Supreme C o u r t precedent, a nd second, if the state court violated B urton ’s Faretta rig hts under c ircuit precedent. W e answered t h e first question b y apply ing Moor e

. B urton , 816 F .3d at 1141 ( “[ W ] e determined in Moore that, after Fare t t a , the Supreme Court had clearly e

stablished that a request to proceed pro se is timely if made ‘weeks before trial.’ Moore
, 108 F .3d a t 2 65.” (emphasis added)).

C. I neffective Assistance of Counsel

T h e state habeas court denied Tamplin’s ineffective assistance of appellate coun s e l claim solely on the g r ound that the underly ing Faretta claim was meritless

. I t did not address whether appellate cou n s el would h a ve been i n e f f e c tive in failing to raise the claim if the claim were meritor i o u s. W e therefore perform the remainder of theT A M P L I N V

. M U N I Z 25

ineffective assistance of appellate counsel analy sis d e novo. See Visciotti , 862 F .3d at 760.

The F ourteenth A mendment’s Due P r o c ess Clause
g uarantees a criminal defen d a nt effective assistance o f counsel, as defined in Strickland v. W ashington

, 466 U .S. 668 (1984), d uring h i s o r h er f

irst appeal as of rig ht. S mith v

. Robbins

, 528 U.S. 259, 285 (2000); Evitts v. Lucey
, 469 U.S. 387, 396 ( 1985). To prevail, the defendant must show, f irst, “that c ounsel’s performance w as objectively unreasonable, which in the appellate contex t re q uires the petitioner to demonstrate that counsel acted unreasonably in failing to discover and brief a merit-worthy issue,” and second, that he

was prejudiced on account o f the deficient performance, “which in this con tex t means that the petitioner must de m o nstrate a reasonable probability that, but f or appellate counsel’s failure to raise the issue, the petitioner would have prevailed in his appeal.” Moormann v. R yan , 628 F .3d 1102, 1106 (9th Cir. 2010).

Tamplin’s counsel filed a declaration in the state h abeas
pr o c eeding

. He ex plained his decision not to raise the Faretta claim as follows:

I h ad no tactical reason not to raise this claim in the initial appeal. I n r e t rospect, it is clear that appellant made two Faretta motions, one in F ebruary 2005 and the second in J uly 2005

. . . . I
, however, labored under the mistaken belief that appellant h a d made only one Faretta motion, the one in F ebruary

, which was g ranted. The transcript of the J uly 2005 motion was not in the record on a p peal and I d id not g et a copy of it ( from appellant’sT A M P L I N V

. M U N I Z 26

wife) until y esterday

, May 24, 2007. Once I

saw it I realiz ed my mistake and took immediate steps to bring this matter before the
court. T he d en i a l o f the Faretta motion is a potentially meritorious constitutional claim that should have b een raised i n t he initial

a p p ea l

. That it was not r aised is due entire l y to my neg lect . . . .

As the declaration shows, Tamplin’s appellate counsel had no tactical reason to refrain from r aising the Faretta claim. He

s imply made a mistake. The record should have alert e d

c ounsel to the need to investig ate further—especially since denial o f a defendant’s r ig h ts u nder Faretta is “one of those

rare constitutional errors that requires automatic rev ersal be cause it amounts to a structural d efect.” U nited States v

. W ithers

, 638 F .3d 1055, 1065 ( 9th Cir. 2011); see also Frantz , 533 F .3d at 734.

Tamplin had a compelling claim to relief under F a r etta

. See supra , Sections I I I

. A–B

. T o say the l e ast, counsel’s failure to raise that claim undermines confidenc e i n t he
outcome o f Tamplin’s appeal. Stric k l a n d

, 466 U.S. at 694. Tamplin was therefore preju d i c ed by his counsel’s deficient performance. See Delgado v. Lewis , 223 F .3d 976, 981 (9th Cir. 2 000) (finding that appellate counsel’s failure to raise meritorious claims o n a p peal prejudiced D elg ado where “there were deficiencies in the trial court proceeding s sig nificant enoug h to warrant reversal”).

Be c a use appellate couns e l ’ s p e r f o r m a n ce w a s constitutionally deficient and Tamplin was prejudiced b y his

c ounsel’s e rrors, Tamplin was d enied his F ourteenthT A M P L I N V

. M U N I Z 27

Amendment rig ht to effective assistance of a ppellate counsel. Smith , 528 U.S. at 285.

Conclusion

F or the f oreg oing reasons, w e reverse the judg ment of the district court and remand with instructions to g rant the writ o f habeas corpus.

REVERSED and REMANDED.

HAW KI NS, Circuit J udg e, dissenting :

I f this habeas petition were not g overned by the AEDPA
reg ime and Supreme Court authority as to when th e r e l ief

r e q u e s ted here could or could not be g ranted, I mig ht w e l l
agr e e w ith my colleag ues. However, 28 U.S.C. § 2254(d) bars relief on a claim adjudicated o n the merits in state court unless that court’s decision w as contrary to f ederal la w then clearly established in Supreme Court holding s or involved an unreasonab l e application of such law, or was based on an unreasonable determination of the facts in lig ht of the record before the state c ourt. Harring t o n v. Richter

, 562 U.S. 86, 98–100 (2011).

This court must first determine what constitutes “ clearly established F ederal law, a s determined by the Supreme Court of the United States.” L o c k yer v. Andrade

, 538 U .S. 63, 71 (2003). I n analy

z ing claims, we a

re limited t o t h e h olding s,

as opposed to the dicta, of Supreme Court cases that e x isted
at the time the state court issu ed its ruling

. Id. ; Howes v

. Field s , 5 6 5 U.S. 499, 505 ( 2012). However, we may notT A M P L I N V

. M U N I Z 28

issue the writ simply because we c o nc l u de that the relevant
state court d ecision applied the law e rroneously o r incorrectly

. Lockyer

, 538 U.S. a t 75–76. A st a t e court decision precludes federal habea s r e lief so long a s

“ f a irminded jurists could disag ree” as to the correctness o f the state court’s decision. H arrington , 562 U.S. at 101.

The majority first concludes the state court m a d e an unreasonable f

a c tual finding that Morris was substituted a s counsel f o r T a m p l in. A lthoug h the orig inal minute order is
not a p icture of clarity

, as it both checks a box indicating that Morris was subbed in and also a ppears to state h e was g ranted

a c o n t i n u ance on “motion to f ile a sub into case,” the nex t two orders e ntered by the court on J une 30 and J uly 8 reflect Morris as the defense couns el o f record and all parties, including Tamplin, proceeded a s tho u gh Tamplin were represented by counsel (Morris) and that if Tamplin wished
to c hang e his mind, a n ew Faretta request would be
necessary . So, too, do I

.

The majority further c o n cludes the California state courts unreasonably a p p l i ed Faretta a n d thus violated his d

ue process rig ht to represent himself by deny ing the renewed request. 422 U.S. at 819; see Adams v. Carroll

, 875 F .2d 1441, 1444 (9th Cir. 1989) ( “ T h e Six th Amendment’s
g uarantee of a s s istance of counsel is unusual a mong constitutional rig hts in that it is also implicitly a g uarantee o f its o pposite, the r ig ht to refus e c o u n sel.”). I am not

c o n v i n ced the issue is so clearcut, nor that the state co u r t d e c i s i o n w a s o b

j e c t i v e l y u n r e a s o n a b l e u n d e r t h e circumstances.

Here, the state trial cou r t g ave two reasons for declining
to g rant Tamplin’s second r e q uest to represent himself:T A M P L I N V

. M U N I Z 29

(1) the timing o f th e r e quest, g iven its prox imity to the scheduled tr i a l d a t e, a

nd (2) that Tamplin had not been unequivocal, having appeared only a week or so earlier with

a privately -hired attorney whom he indicated he had hired for assistance with matters he co u ld not handle personally

, especially dealing with rules of the court. On consideration of the state habeas petition, and contrary to t h e m ajority ’s interpretation of the r ecord, the state habeas c ou r t f ully
ag reed w ith the trial court’s assessment and re a s o n i ng , including the need to assert the right within a reasonable time be f ore the c ommencement of trial

, but also specifically elaborated that Tamplin’s attempted hiring of attorney Morris

s h o rt l y before the request indicated he was n ot unequivocal in the desir e t o represent himself, b ut appeared to be searching for a compatible attorney

. 1

Under A EDPA, we may look only to Supreme Court decisions to determine what constitutes “clearly established federal law.” Murray v

. Schriro

, 745 F .3d 984, 9 97 ( 9th Cir. 2014) (“Our precedent c annot be mistaken for clearly established Supreme Court law.”). F a r e t t a itself offers no g uidance on the equivocal issue, nor does any Supreme Court
p recedent since it was decided. And this court has a l s o

1 T h e s tate h ab eas co u rt cites b o th f ed eral an d state law reg ard i n g th e tim elin ess o f th e m o tio n , d escrib ed b o th o f th e trial co u rt’ s r e a s o n s f or d en y in g th e req u est, in clu d in g th at “ t im elin ess is a su b stan tial f acto r” an d th en co n clu d ed t

h at “ u n d er th ese circu msta n ces, ” th e rig h t to self

rep resen tatio n h ad n o t b een v io lated

. I v iew th is as f u lly in co rp o ratin g th e trial co u rt’ s reaso n in g an d th en elab o ratin g f u rth er o n its o w

n

. T h e h ab eas

co u rt also of

f ered a th ird reaso n f

o r d en y i n g T am

p lin ’ s p etitio n , in t

h at h e d id n o t su

b seq u en tly ren ew h is req u e s t t o rep resen t h im self

. I do n o t ad d ress t h e v alid i ty o f t

h is ad ditio n al “ acq u iescen ce” reaso n in g becau se,

as d iscu ssed b elo w , I b eliev e th e f irst tw o reaso n s su f

f i cien t to u ph o ld th e

ru lin g

.T A M P L I N V

. M U N I Z 30

ex p lained that altho u gh Faretta “ clearly established some timing e lement,” the “precise contours of that element” a re unknown and “[ a] t most, we know that Faretta requests made ‘weeks before trials’ are ti m e l y

. ” Marshall v. Taylor

, 395 F .3d 1058, 1061 (9th Cir. 2005). 2

I n lig h t of the record a s a w hole, I cannot say that the Californ ia state court’s decision was an unreasonable application of Faretta

. The timing of the renewe d r e quest

was very close to trial a

nd Tamplin admitted h e could not be ready in ti m e f

o r the scheduled trial date. As this court has noted, “ Faretta does not articu l ate a specific time frame pursuant to which a c laim f or self-representation qualifies a s timely .” Stenson v. Lambert

, 504 F. 3 d 873, 884 (9th Cir. 2007). Moreover, Tamplin’s attempt to hire counsel shortly before trial, and for the acknowledg ed purpose of helping him with matters he did not feel h e could personally h andle, such

as comply ing with rules of court, definitely calls into question the unequivocal nature of his r equest. S e e id. at 882–83 (W ashing ton Supreme Court determination that petitioner’s request was equivocal in lig ht of th e record as a whole was not objectively unreasonable). Althoug h Tam p l i n was

2 I ack n o w led g e th at in an o ld er case, Mo o r e v. Ca ld ero n , 1 08 F.3 d 2 6 1
, 2 6 4 (9 th Cir. 1 9 9 7 ), th i s co u rt, ap p ly in g p re- A EDP A s tan d ard s, h eld th at a state co u rt d en ial o f a d ef en d an t’ s m o tio n t o rep resen t h im self m ad e tw o w eek s an d tw o d ay s bef ore sch ed u led trial w as tim ely an d g ran t ed th e

w rit. In d icta, th e co u rt f

u rth er su g g ested th e resu lt w o u ld b e th e sam e i f
t h e t h e n

- n ew A EDP A s tan d ard s ap p lied to th e case, id

. at 2 63

– 6 4
, a lth o u g h Nin th Circu it law at th e tim e clearly h eld th ey d id n o t, Jeff r i e s

v. W o o d

, 1 0 3 F.3 d 8 2 7 (9 th Cir. 1 9 9 6) (en b an c), a h o ld in g su b seq u en tly

co n f irm ed b y th e Su

prem e C o u rt in Lin d

h v

. M u rp h y , 5 2 1 U.S. 3 2 0 (1 9 9 7). I w o u ld n ot f o llo w Mo ore’ s d icta, an d in stead f o cu s on

su b seq u en t cases actu ally

g ov ern ed b y th e A EDP A stan d ard w

h ich h av e stated th at Fa retta “ clearly estab lish ed ” n o m o re th an th at req u ests m ad e

“ w eek s b ef

o re trial” are tim ely

. S

ee S tetso n , 5 0 4 F.3 d at 8 8 4

.T A M P L I N V

. M U N I Z 31

perhaps “ unequivocal” after the point in time that he made his renewed request to represent himself, Faretta certainly does

n o t preclude the trial court’s consideration of the ent i r e record, nor offer any g uidance whatsoever on what mig ht constitute equivocation by a defendant, since the defendant in Faretta never wavered in his desire to r epresent himself in the
way Tamplin did here. 3

I n sum, I cannot find a holding of the Supreme Court that clearly r equires relief under the circumstances present h ere, and its most recent pronouncements sug g est othe r w i s e

. See Kernan v

. Cuero
, 1 3 8 S

. Ct. 4, 8 (2017). I n Kernan
, the Supreme Court recently made clear that AEDPA does not permit: (1) g ranting relief where fairminded jurists cou l d disag ree with the reading o f S u p reme Court precedent, o r (2) ordering relief when there was no Supreme Court decision clearly entitling the defendant to the re l i e f he seeks, o r (3) relying o n circuit precedent, st a t e court d ecisions, treatises, law review articles, or any thing bey ond e stablished S u p reme Court precedent for AEDPA purposes. I d

. a t 9. Cog niz ant of these parameters, I f ind it is a t l e a s t debatable under Faret ta whether Tamplin’s renewed request was sufficiently timely and whethe r h e w as truly unequivocal in desiring to represent h imself. Thus, in my opinion, Tamplin has not e stablished that the state court’s decision was “in direct and irreconcilable conflict w ith Supreme Court

3 T h e m aj o rity p o in ts o u t t h at a f o o tn o te in Fa retta in d ica t e s h e attem p ted o n th ree o ccasio n s to h av e t h e trial co u rt ap p o in t an d p ay f or p riv ate co u

n sel f o r h im

. 42 2 U.S. at 8 0 8 n .5

. T h e sig n if ican ce of th i s f

act is n o t d iscu ssed in th e o p in io n

. Ho w ev er, try in g to g et th e co u rt to p ay f or

co u n sel o f c h o i ce is still a s tep rem o v ed f ro m w h at T am p lin did h ere– actu ally h irin g su ch co u n sel an d ap p earin g in co u rt w ith h i m sh o rtly b ef o re trial, rep r e s e n t i n g to th e trial j u dg e th at h e n o w d esired su ch
rep resen tatio n

rath er th an

co n t in u in g o n p r o se.T A M P L I N V

. M U N I Z 32

p r e c e dent,” Murray
, 745 F .3d at 997, nor has he shown tha t t h e state court ruling a

pply ing Faretta “was so lacking i n justification that the r e was an error well understood a nd comprehended in e x isti n g law bey ond any possibility for fairminded disag reement.” H arrington
, 562 U.S. a t 1 0 3

. I would affirm the district court’s denial of the petition.