FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DWIGHT TAMPLIN, JR.,

Petitioner-Appellant,

v.

WILLIAM MUNIZ, Warden,

Respondent-Appellee.

No. 16-15832

D.C. No.

1:12-cv-01633-AWI-SKO

OPINION

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Argued and Submitted October 16, 2017

San Francisco, California

Filed July 6, 2018

Before: Michael Daly Hawkins and William A. Fletcher,

Circuit Judges, and John A. Kronstadt,* District Judge.

Opinion by Judge W. Fletcher;

Dissent by Judge Hawkins

* The Honorable John A. Kronstadt, United States District Judge for

the Central District of California, sitting by designation.
2 TAMPLIN V. MUNIZ

SUMMARY**

Habeas Corpus

The panel reversed the district court’s judgment denying

California state prisoner Dwight Tamplin, Jr.’s petition for a

writ of habeas corpus, and remanded with instructions to

grant the writ, in a case in which Tamplin argued that his 25-

years-to-life Three Strikes sentence was obtained in violation

of his Sixth Amendment right under Faretta v. California,

422 U.S. 806 (1975).

Reviewing under the Antiterrorism and Effective Death

Penalty Act the state habeas court’s decision that Tamplin’s

Faretta claim was meritless, the panel held that the state

court’s two conclusions—that Tamplin’s request to represent

himself was equivocal, and that Tamplin waived his Sixth

Amendment right by not continuing to object after a public

defender 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 appellate

counsel rendered constitutionally deficient performance by

failing to raise Tamplin’s compelling Faretta claim; and that

Tamplin was prejudiced by counsel’s deficient performance.

Dissenting, Judge Hawkins wrote that Tamplin has not

established that the state court’s decision was in direct and

irreconcilable conflict with Supreme Court precedent, and has

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
TAMPLIN V. MUNIZ 3

not shown that the state court ruling applying Faretta was so

lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for

fairminded disagreement.

COUNSEL

Katherine L. Hart (argued), Fresno, California, for PetitionerAppellant.

David Andrew Eldridge (argued), Deputy Attorney General;

Tami M. Krenzin, Supervising Deputy Attorney General;

Michael P. Farrell, Senior Assistant AttorneyGeneral; Xavier

Becerra, Attorney General; Office of the Attorney General,

Sacramento, California; for Respondent-Appellee.
4 TAMPLIN V. MUNIZ

OPINION

W. FLETCHER, Circuit Judge:

Dwight Tamplin appeals the denial of his petition for a

writ of habeas corpus. He argues that his twenty-five-yearsto-life sentence imposed under California’s Three Strikes

sentencing law was obtained in violation of his Sixth

Amendment right under Faretta v. California, 422 U.S. 806

(1975), and that he is entitled to relief under 28 U.S.C.

§ 2254. We agree.

I. Factual and Procedural Background

On May 21, 2004, a California Highway Patrol officer

stopped Tamplin and three other African-American men for

a traffic violation. The officer called for backup after he

smelled burned marijuana in the car and observed indicia of

gang affiliation. Upon searching the car, officers discovered

a .38 caliber handgun and a .357 caliber revolver. People v.

Tamplin, No. F050103, 2007 WL 1365988, at *1 (Cal. Ct.

App. May 10, 2007). Tamplin was charged in state court

with possession of a firearm by a felon. Cal. Pen. Code

§ 12021(a)(1). He was also charged with a street gang

enhancement under Cal. Pen. Code § 186.22(b)(1), as well as

four “strikes” based on his prior conviction for four criminal

offenses on May 28, 1991.

Over the course of the next nine months, Tamplin cycled

through three appointed attorneys. On February 10, 2005,

while represented by public defender Kathleen Hall, Tamplin

successfully moved to represent himself. Tamplin asked for

appointment of “assistant counsel” five days later, but his

request was denied. He represented himself without incident
TAMPLIN V. MUNIZ 5

for the next four months. Trial was scheduled to begin on

July 14, 2005, five months after Hall had last represented

him.

On June 22, Tamplin appeared in California Superior

Court with privately retained attorneyGreg Morris. A minute

order shows that Morris requested a continuance to file a

motion to substitute counsel. Two boxes on the minute order

are checked. Under the heading “ARRAIGNMENT-VOP,”

a box labeled “Sub in” is checked, with the name “Greg

Morris” handwritten in the blank following the box. Below

that, under the heading “MOTIONS,” a box labeled

“Granted” is checked, with the following handwritten text

next to it: “Mr. Morris requests a cont on the motion to file a

sub into case.” That motion was never filed, for two days

later, on June 24, Morris was no longer eligible to practice

law. His membership in the state bar was suspended in

advance of disciplinary proceedings that would ultimately

end in his disbarment for misappropriation of client funds.

At a June 30 hearing, the trial court informed Tamplin

that Morris had been suspended from practice and could not

represent him. The court asked Tamplin how he wished to

proceed. Tamplin immediately responded that he wished to

continue to represent himself, and he completed a second

waiver of counsel form.

On July 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 your status in representing yourself in

this case.” Tamplin stated that he did. The court reviewed

the waiver of counsel form that Tamplin had completed on

June 30 and thoroughly explained the rights that Tamplin

would forfeit. Tamplin confirmed that he understood. The
6 TAMPLIN V. MUNIZ

court stated that it would “make an additional inquiry,”

whether Tamplin would be prepared for trial which was still

set for July 14. Tamplin replied, “Nope.”

The court then inquired as to why Tamplin wished to

represent himself. Tamplin responded, “Not

comfortable—I’m not comfortable with anybody that’s in the

public defender’s office or anybody else that’s been hiring

[sic] me. They haven’t been representing me, they haven’t

filed anything, they haven’t done nothing that’s going to help

my case. I’m the only one who has filed anything and I’m the

only one that has done anything that is going to help my case.

Everybody else has done nothing.” The court pointed out that

Tamplin had hired his own attorney. Tamplin explained that

he had attempted to hire a private attorney because “that’s

what I felt I needed to do at the time.” Now that it turned out

that Morris, whom Tamplin had already paid, was not

available, Tamplin explained that he felt that he was “going

to give myself the best representation without feeling like I

didn’t do everything that I could to fight for me.”

The court again asked Tamplin why he attempted to retain

a private attorney. Tamplin responded, “I hired an attorney at

that time . . . because I was able to come up with the funds,

but also he had insight on my case and he—he had something

that I felt that I really couldn’t do at the time and I was like

well—actually, he was supposed to be co-counsel . . . . [H]e

was supposed to make the objections or the things that I

didn’t actually catch and follow as far as following the Rules

of Court, that’s what was supposed to be going on . . . .” 

After a further exchange, Tamplin reiterated, “I’m

representing me now.” The court confirmed that Tamplin

would not be ready for trial in six days. Tamplin stated that
TAMPLIN V. MUNIZ 7

he would not, because he needed to file more pretrial

motions.

The court then held that Tamplin would not be allowed to

represent himself. It stated, “In this case, given that he

desired counsel less than three weeks ago and hired counsel

to assist him, the court need not make any inquiry other than

that, or delve any further as to those reasons why he wanted

counsel, but obviously he wanted counsel to do things he

could not do at trial . . . .” The court stated that it would not

permit Tamplin to proceed pro se, “finding that the timeliness

is a substantial factor, along with the equivocalness and that

the court finds that it is an equivocal demand based on that

request for counsel and hiring of counsel on June the 22nd,

2005.” Tamplin responded, “[Y]ou’re going to violate my

due process rights which you just did and by denying my pro

per status, which is—I’m granted by law, and you’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 you are violating my due process rights, what you’re

doing now.”

The court gave Tamplin the choice to hire his own

attorney or to accept a public defender. Tamplin stated, “I

told you I don’t want no public defender, none of the ones

that you are going to appoint. It is going to be a conflict.”

The court asked if Tamplin could afford a private attorney. 

He responded, “Well, if you order my money back [from

Morris], I can hire one.” At the end of the July 8 hearing,

after telling Tamplin that it lacked the authority to order

Morris to return the money so he could hire private counsel,

the court denied his request to represent himself and reappointed public defender Hall.
8 TAMPLIN V. MUNIZ

The court continued the trial for six months. The state

habeas court later wrote that the court “continued the trial

date to give petitioner’s new counsel time to prepare.” The

trial court’s action on July 8 makes clear that, no matter what

happened, the trial was almost certainly not going to begin on

July 14. Tamplin had indicated that he needed a continuance. 

His re-appointed counsel, Hall, also needed a continuance.

At trial, Tamplin was convicted under California’s felonin-possession statute and was sentenced to forty-five years to

life under California’s Three Strikes sentencing law. On

direct appeal, the Court of Appeal affirmed his conviction but

reduced his sentence to twenty-five years to life. Tamplin’s

appointed appellate counsel on direct appeal failed to raise his

Faretta claim.

In a pro se habeas petition to the California Superior

Court, Tamplin argued that his appointed appellate counsel

was ineffective for failing to raise his Faretta claim. The

state habeas court held that appellate counsel was not

ineffective in failing to raise the claim because Tamplin’s

Faretta rights were not violated. The court based its decision

on two grounds. First, Tamplin had not unequivocally

requested to represent himself: “[P]etitioner’s hiring of Mr.

Morris after the first Faretta motion had been granted

indicates that petitioner was not unequivocal in his desire to

represent himself. Instead, it appears that he was simply

searching for a compatible attorney.” Second, Tamplin had

waived his Sixth Amendment right by acquiescing in the trial

court’s denial of his Faretta request: “Petitioner had at least

six months after the denial of the Faretta motion in which to

object to the appointment of new counsel, but he failed to do

so.”
TAMPLIN V. MUNIZ 9

Tamplin filed a habeas petition in the California Court of

Appeal which was denied without comment. He filed a

habeas petition in the California Supreme Court, which was

also denied without comment. Tamplin then filed a habeas

petition in federal district court.

II. Standard of Review

“We review the district court’s denial of [a] § 2254

habeas corpus petition de novo.” Deck v. Jenkins, 814 F.3d

954, 977 (9th Cir. 2016).

The Antiterrorism and Effective Death Penalty Act

(“AEDPA”) governs this petition. See Lindh v. Murphy,

521 U.S. 320, 322 (1997). “Under AEDPA, ‘[w]e review the

last reasoned state court opinion[.]’ ” Visciotti v. Martel,

862 F.3d 749, 760 (9th Cir. 2016) (quoting 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.

When a state court adjudicates a claim on the merits,

“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.” 28 U.S.C. § 2254(d)(1), (2). “[A] state-court

decision is contrary to [Supreme Court] precedent if the state

court arrives at a conclusion opposite to that reached by [the]

Court on a question of law . . . [or] if the state court confronts

facts that are materially indistinguishable from a relevant

Supreme Court precedent and arrives at [the opposite] result
10 TAMPLIN V. MUNIZ

. . . .” Williams v. Taylor, 529 U.S. 362, 405, 389 (2000). A

state court unreasonably applies Supreme Court precedent “if

the state court identifies the correct governing legal principle

from the Supreme Court’s decisions but unreasonably applies

that principle to the facts of the prisoner’s case.” Mann v.

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

529 U.S. at 413) (internal alterations omitted). “We may only

hold that a state court’s decision was based on an

unreasonable determination of the facts if ‘we are convinced

that an appellate panel, applying the normal standards of

appellate review, could not reasonably conclude that the

finding is supported by the record.’ ” Murray v. Schriro,

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

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

“If we determine . . . that the adjudication of a claim on

the merits resulted in a decision contrary to or involving an

unreasonable application of clearlyestablished federal law, or

that the state court’s decision was based on an unreasonable

determination of the facts, we evaluate the claim de novo

. . . .” Hurles v. Ryan, 752 F.3d 768, 778 (9th Cir. 2014). We

review de novo if the state court failed to reach the merits of

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

III. Discussion

A. Faretta

In Faretta v. California, 422 U.S. 806, 807 (1975), the

Supreme Court held that the Sixth Amendment guarantees

criminal defendants the right to represent themselves. Faretta

was charged with a felony in a California Superior Court. 

Like Tamplin, Faretta was originally represented by a public

defender. Id. Also like Tamplin, Faretta feared that his
TAMPLIN V. MUNIZ 11

public defender would not represent him adequately. Id. He

explained to the Superior Court that he wished to represent

himself because the public defender’s office serving his

community “was ‘very loaded down with . . . a heavy case

load.’ ” Id. He objected to the public defender’s office

specifically, not to defense attorneys in general. Indeed,

Faretta asked three times during his court proceedings that he

be appointed an attorney other than a public defender. Id. at

810 n.5. The trial court initially granted Faretta’s request to

represent himself, but not before warning Faretta that he did

not “know [the] ground rules” of court procedure. Id. at 808

n.2. Later, the court revoked Faretta’s pro se status after he

incorrectly answered its inquiries about the rules of evidence

and procedure on voir dire. Id. at 808–09 & n.3.

The Supreme Court held that the State had violated

Faretta’s Sixth Amendment right to represent himself. The

Court acknowledged that “[w]hen an accused manages his

own defense, he relinquishes, as a purely factual manner,

many of the traditional benefits associated with the right to

counsel.” Id. at 835. The Court nonetheless held that when

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

experience of a lawyer”—is “made aware of the dangers and

disadvantages of self-representation,” he must be permitted

to represent himself. Id. “Weeks before trial, Faretta clearly

and unequivocally declared to the trial judge that he wanted

to represent himself and did not want counsel.” Id. “In

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.” Id. at 836 (emphasis added).
12 TAMPLIN V. MUNIZ

B. Superior Court’s Decision on State Habeas

The Superior Court on state habeas concluded for two

reasons that Tamplin’s Faretta claim was meritless, and that

appellate counsel was therefore not ineffective in failing to

raise it. First, the court concluded that Tamplin’s request to

represent himself was equivocal. Second, the court

concluded that Tamplin waived his Sixth Amendment right

by acquiescing in the trial court’s appointment of the public

defender to represent him. Both conclusions were clearly

contrary to established Supreme Court law. We take these

conclusions in turn.

1. Unequivocal Request

The state habeas court concluded that Tamplin’s desire to

hire private counsel rendered equivocal his request to

represent himself. This conclusion is clearly contrary to

Faretta. As we discuss in detail below, Tamplin did not

make a new Faretta request on June 22 and July 8. He had

been representing himself since February 10, and he sought

only to continue that self-representation. It may be that the

clarity required for an entirely new Faretta request is greater

than for a request to continue an uninterrupted selfrepresentation. However, we need not address that question,

for Tamplin’s request was unambiguous under any standard.

A criminal defendant’s unsuccessful attempt to hire

private counsel does not make equivocal his request to

represent himself if the only alternative to self-representation

is representation by a public defender. This is clear from

Faretta itself. Faretta moved three times for the

“appointment of a lawyer other than the public defender,”

clearly indicating that he did not object to being represented. 
TAMPLIN V. MUNIZ 13

See Faretta, 422 U.S. at 810 n.5. Indeed, he wanted to be

represented. His only objection was to representation by a

public defender. See id. at 807. When presented with the

choice of representing himself or being represented by a

public defender, Faretta chose to represent himself. The

Supreme Court held that the state court violated Faretta’s

Sixth Amendment right “[i]n forcing Faretta . . . to accept

against his will a state-appointed public defender.” Id. at 836

(emphasis added).

Tamplin’s case is indistinguishable from Faretta’s. His

request to represent himself rather than be represented by a

public defender was unequivocal. When asked on June 30

how he wished to proceed when he learned that private

counsel Morris had been suspended and could not represent

him, Tamplin immediately declared his desire to proceed pro

se, and he executed on the spot a written waiver of rights

form. More than a week later, at the July 8 hearing, he was

strongly, even fervently, committed to self-representation. 

He consistently maintained his position through a long and

thorough colloquy.

Tamplin’s exchange with the trial court on July 8 reads

like an exercise in how many ways a defendant can say that

he wants to represent himself. In succession: (1) “[Y]ou

don’t wish to have counsel appointed to represent you?”

“No.” (2) “[I]t’s your request to return to your status in

representing yourself in this case . . . ?” “Yes.” (3) “I’m

going to represent myself . . . .” (4) “I have a right to go pro

per at this time. I’m trying to go back to pro per.” (5) “I’m

going to give myself the best representation without feeling

like I didn’t do everything that I could to fight for me.” 

(6) “I’m representing me now.” “You’re still represented by

Mr. Morris.” “All right. Then I’ll make that request.” (7) “I
14 TAMPLIN V. MUNIZ

told you I don’t want no public defender, none of the ones

that you are going to appoint.” Then, immediately after the

trial court denied his request, Tamplin twice accused the court

of violating his due process rights.

Tamplin recognized in his colloquy with the trial court

that an attorney could provide assistance in technical and

procedural matters, but that hardly made his request

equivocal. Under Faretta, a defendant’s “technical legal

knowledge . . . [is] not relevant to an assessment of his

knowing exercise of the right to defend himself.” Id. at 836. 

“A defendant need not himself have the skill and experience

of a lawyer in order competently and intelligently to choose

self-representation . . . .” Id. at 835. A defendant’s choice to

represent himself necessarily entails a weighing of pros and

cons. Foregoing an attorney will virtually always mean that

the defendant will have the responsibility to manage aspects

of trial for which he is ill-equipped. A defendant may

understand these limitations but still prefer to represent

himself. Indeed, he must acknowledge his limits in order to

waive his right to counsel. A Faretta waiver is not

competently made unless the defendant understands the

“dangers and disadvantages of self-representation.” Id. Here,

Tamplin conceded that there were technical aspects of the

trial with which he would necessarily be unfamiliar but still

maintained that he was “going to give myself the best

representation without feeling like I didn’t do everything that

I could to fight for me.” Under Faretta, the state court was

required to respect Tamplin’s wish, whether or not he could

“personally handle” complying with the rules of court.
TAMPLIN V. MUNIZ 15

2. Waiver by Acquiescence

After the state trial court denied Tamplin’s request to

represent himself on July 8, and after Tamplin made clear his

objection to the court’s ruling, Tamplin did not object again. 

The state habeas court held that because Tamplin did not

object again, he had waived his Sixth Amendment right by

“acquiescing” in the court’s ruling. This holding is clearly

contrary to Faretta.

Faretta held, without qualification, that a defendant who

makes an unequivocal and timely request to represent himself

has a Sixth Amendment right to self-representation, and that

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

a violation of that right. 422 U.S. at 835–36. The Sixth

Amendment violation is complete at the time of the court’s

denial.

The state habeas court relied on People v. Rudd, 63 Cal.

App. 4th 620 (1998), in concluding that Tamplin’s

acquiescence constituted a waiver of his Sixth Amendment

claim. The California Court of Appeal held in Rudd that a

defendant who makes a timely and unequivocal request to

represent himself can subsequently waive his Sixth

Amendment right by acquiescing in counsel’s representation

by failing to continue to object. If the defendant acquiesces

and thereby waives his right to self-representation, the Court

of Appeal held, his Sixth Amendment rights have not been

violated. Id. at 630–31. The Court of Appeal in Rudd based

its acquiescence rule on its reading of Faretta and McKaskle

v. Wiggins, 465 U.S. 168, 172 (1984). The state habeas court,

relying on Rudd, held that Tamplin had acquiesced in the reappointment of public defender Hall.
16 TAMPLIN V. MUNIZ

The Court of Appeal in Rudd relied on the following

sentence from Faretta: “Unless the accused has acquiesced

in such representation, the defense presented is not the

defense guaranteed him by the Constitution, for, in a very real

sense, it is not his defense.” Rudd, 63 Cal. App. 4th at

630–31 (emphasis omitted) (quoting Faretta, 422 U.S. at

821). The Rudd court read that sentence in isolation from its

context. The context in Faretta is as follows:

[W]hen a defendant chooses to have a lawyer

manage and present his case, law and tradition

may allocate to the counsel the power to make

binding decisions of trial strategy in many

areas. This allocation can only be justified,

however, by the defendant’s consent, at the

outset, to accept counsel as his representative. 

An unwanted counsel “represents” the

defendant only through a tenuous and

unacceptable legal fiction. Unless the accused

has acquiesced in such representation, the

defense presented it not the defense

guaranteed him by the Constitution, for, in a

very real sense, it is not his defense.

422 U.S. at 820–21 (first, second and third emphases added). 

This passage says, unsurprisingly, that a criminal defendant

has “acquiesced in such representation” when he “chooses”

“at the outset, to accept counsel as his representative.” The

passage has nothing to do with a defendant’s behavior after

he has unequivocally requested to proceed pro se, and after

the trial court has improperly refused that request. The

passage cannot be reasonably interpreted to mean that a

defendant’s failure to continue to object after the trial court
TAMPLIN V. MUNIZ 17

has violated Faretta constitutes acquiescence in the

appointment of a public defender.

In McKaskle, the Supreme Court held that the

participation of stand-by counsel is not inconsistent with the

Sixth Amendment right of a criminal defendant to represent

himself or herself. In the case before us, stand-by counsel is

not at issue.

The state habeas court’s conclusion that Tamplin waived

his Sixth Amendment right by not continuing to object after

public defender Hall was re-appointed was clearly contrary to

Faretta.

3. Timeliness of Tamplin’s Request

On appeal to us, the State argues that Tamplin’s request

to represent himself was untimely.

a. AEDPA Deference or De Novo Decision

A preliminary question is whether we give deference

under AEDPA to the state habeas court on the question

whether Tamplin’s request was timely, or whether we address

that question de novo. Our dissenting colleague contends that

we must give deference. We disagree.

It is settled law that we give deference to the latest

reasoned decision of a state court. Visciotti, 862 F.3d at 760. 

However, if the last reasoned decision did not address a

properly raised question, we decide the question de novo. Id.;

Frantz v. Hazey, 533 F.3d 724, 738 (9th Cir. 2008) (en banc)

(“We confine our § 2254(d)(1) analysis to the state court’s

actual decisions and analysis. . . . Indeed, if we were to defer
18 TAMPLIN V. MUNIZ

to some hypothetical alternative rationale when the state

court’s actual reasoning evidences a § 2254(d)(1) error, we

would distort the purpose of AEDPA.” (emphasis in

original)); cf. Harrington v. Richter, 562 U.S. 86, 98 (2011)

(when state court issues an unreasoned summary order

deciding a case on the merits, we assume that the court

resolved questions necessary to its decision). The state

habeas court, which provided the last reasoned decision, gave

two reasons for its decision, either of which, if valid, sufficed

to support its result. The court did not need to reach the

question whether Tamplin’s request was timely, and it did not

do so.

The state habeas court explained its decision in a fivepage written order, containing just under four pages of actual

text. The first page of text recites the procedural history of

the case. The second page quotes passages from California

court decisions interpreting Faretta.

The order then recites the facts as follows:

In the present case, the petitioner

originally moved to represent himself in

February of 2005, and the court granted the

motion. Then, in June of 2005, petitioner

hired Greg Morris to represent him. Mr.

Morris apparently substituted into the case on

June 22, 2005.

About one week later, on July 8, 2005,

petitioner moved to represent himself. 

However, the trial court denied the Faretta

motion, finding that the motion was equivocal

and that “timeliness is a substantial factor”
TAMPLIN V. MUNIZ 19

because the trial date was only about six days

away. The court then went on to appoint

counsel for petitioner and later continued the

trial date to give petitioner’s new counsel time

to prepare. The case was not ultimately tried

until January of 2006, about six months later.

The next paragraph begins, “Under these circumstances,

the court finds that petitioner’s right to self-representation

was not violated.” That sentence is followed, in the same

paragraph, by fourteen lines of text in which the state habeas

court held that Tamplin waived his right to represent himself

by acquiescing in the trial court’s ruling. The next paragraph

contains eight lines of text in which the state habeas court

held that Tamplin was equivocal in his request to represent

himself. That paragraph is followed by a final paragraph of

a single line stating, “The petition is denied.”

The order thus gives two clearly articulated reasons for

holding that Tamplin’s Sixth Amendment right was not

violated. The order nowhere says that Tamplin made his selfrepresentation request too late, or gives that as a reason

supporting its holding. We accordingly review de novo the

timeliness of Tamplin’s request.

b. Timeliness of Tamplin’s Request

For the reasons that follow, we conclude that Tamplin’s

request to represent himself was timely. As just noted, we

decide this question de novo, but we would reach the same

decision even if we were to give deference under AEDPA. 

We reach this decision on two grounds.
20 TAMPLIN V. MUNIZ

(1) Tamplin Continuously Represented Himself from

February 10 Forward

It is undisputed that Tamplin made an unequivocal

request to represent himself on February 10, 2005, and that

this request was granted. It is also undisputed that Morris

appeared in the trial court on June 22; that the minute order

for that day states that Morris requested a continuance in

order to file a motion to substitute in as counsel; that Morris

never made the motion for which he was granted a

continuance on June 22; and that on June 24 Morris was

suspended from practice. Because Morris never made the

motion for which he was granted a continuance, he never

legally represented Tamplin in the trial court. It necessarily

follows that Tamplin represented himself in the trial court

continuously from February 10 onward, and that he did not

make a new request on June 30 to represent himself when he

learned that Morris had been suspended from practice.

Our dissenting colleague contends that Morris was

actually substituted in as Tamplin’s counsel. We disagree. 

Our dissenting colleague characterizes the minute order of

June 22 as “not a picture of clarity,” and writes that minute

orders “entered by the court on June 30 and July 8 reflect

Morris as the defense counsel of record and all parties,

including Tamplin, proceeded as though Tamplin were

represented by counsel (Morris).” Diss. at 28. This is not a

full description of the minute orders of June 30 and July 8.

Greg Morris’s name is preprinted at the top of both

minute orders, but the bodies of the minute orders tell a

different story. The body of the June 30 minute order has two

handwritten notations. Next to the heading “MOTIONS,” is

handwritten, “Deft requests to go Pro Per / Crt advises deft.
TAMPLIN V. MUNIZ 21

that a waiver needs to be made.” Below that, next the

heading “OTHER,” is handwritten, “Mr. Morris is not

eligible to practice law.” The body of the July 8 minute order

has several handwritten notations. Under the heading

“ARRAIGNMENT-VDP,” two boxeslabeled “(Re)appt.” and

“ADO/” are checked, and next to the boxes is handwritten the

name “K. Hall.” Under the same heading, a box labeled

“Relieved” is checked, and next to the box is handwritten the

name “G. Morris.” Below that, under the heading

“MOTIONS,” a box labeled “denied” is checked, and next to

the box is handwritten “Faretta mtn (time substantial factor).” 

Finally, below that, under the heading “OTHER” is

handwritten “Greg Morris – unable to practice law at this

time.”

Far from showing that the parties treated Tamplin as

“represented by counsel (Morris),” the June 30 and July 8

minute orders show that the court understood that Tamplin

was not—indeed, could not be—represented by Morris. The

June 30 minute order could not have been clearer: “Mr.

Morris is not eligible to practice law.” During the July 8

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

expressed a desire [to represent himself] given that Mr.

Morris is unable to represent him at this time . . . .” The only

suggestion in the body of either minute order that Morris ever

represented Tamplin in the trial court is the check in the July

8 minute order of the box labeled “Relieved.” In light of

what had come before, that check cannot be reasonably read

to indicate that Morris had ever successfully moved in the

trial court to represent Tamplin.
22 TAMPLIN V. MUNIZ

(2) Timely Request on June 30

Even if we assume, counterfactually, that Tamplin made

a new request to represent himself on June 30, as distinct

from a request to continue to represent himself, his request

was timely.

In the typical case of an untimely Faretta request, the

defendant is represented bycounsel when the request is made. 

In that circumstance, granting a Faretta motion would result

in a delay that would not occur if counsel were permitted to

continue to represent the defendant. A Faretta request must

therefore be made in a timely manner. But this is not that

typical case. On June 30, when Tamplin indicated that he

wished to continue to represent himself, he had already been

representing himself for over four and a half months. He had

appeared in the trial court with Morris on June 22 when

Morris was granted a continuance to make a motion to

substitute in as counsel (a motion that was never made), and

he learned on June 30 that Morris could not represent him. 

As discussed above, Tamplin indicated unambiguously on

June 30 that he wished to continue to represent himself.

For purposes of argument, we are willing to assume that

Tamplin’s request on June 30 was a new request, but, as we

note, this was far from the typical Faretta request. We are

also willing to assume that July 14, the formally scheduled

date, was a realistic trial date, but, as we note, the court

continued the trial for six months after he denied Tamplin’s

request to represent himself. On these assumptions, Tamplin

made a new request to represent himself on June 30, exactly

two weeks before the scheduled trial date of July 14. Even on

these assumptions, Tamplin’s request was timely.
TAMPLIN V. MUNIZ 23

In Moore v. Calderon, 108 F.3d 261 (9th Cir. 1997),

overruled on other grounds in Williams v. Taylor, 529 U.S.

362 (2000), we held in a habeas case that a Faretta request

made two weeks and two days before trial was timely. On

the assumption that we should give AEDPA deference to the

state court decision, we wrote:

If the state court decision in this case was

“contrary to” the Federal law clearly

established by Faretta, then the writ may

properly be granted. Indeed, the relevant facts

is this case are identical to those in Faretta. 

Like Faretta, Moore made his request “weeks

before trial.”

Id. at 265. 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 denying habeas, we would not give AEDPA deference to

that conclusion. As recounted above, the state court believed

that Tamplin made his Faretta request on July 8. It wrote: 

“About one week later, on July 8, 2005, petitioner moved to

represent himself.” This is a clear factual error. Tamplin

requested to represent himself on June 30, when he learned

that Morris had been suspended and could not represent him. 

The hearing on Tamplin’s request was on July 8, but he had

made the request eight days earlier.

But even if the state habeas court had relied on

untimeliness and even if we were to give AEDPA deference,

we would interpret Faretta as we did in Moore. That is, we

would conclude that the state habeas court reached a result

clearly contrary to Faretta. See Marshall v. Rodgers, 569
24 TAMPLIN V. MUNIZ

U.S. 58, 64 (2013) (“[A]n appellate panel may, in accordance

with its usual law-of-the-circuit procedures, look to circuit

precedent to ascertain whether it has already held that the

particular point in issue is clearly established by Supreme

Court precedent . . . .”). Stenson v. Lambert, 504 F.3d 873,

884 (9th Cir. 2007), on which the dissent relies, contains only

generalized observations about Faretta and does not engage

with Moore. In Marshall v. Taylor, 395 F.3d 1058, 1061 (9th

Cir. 2005), we discussed Moore approvingly, in holding that

a request made on the morning of trial was untimely. In the

course of our discussion, we wrote, “[A]fter 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.” Id. Though Burton v. Davis, 816 F.3d

1132, 1141 (9th Cir. 2016), was a pre-AEDPA case, we

analyzed Burton’s claim by asking, first, if the state court

violated clearly established Supreme Court precedent, and

second, if the state court violated Burton’s Faretta rights

under circuit precedent. We answered the first question by

applying Moore. Burton, 816 F.3d at 1141 (“[W]e

determined in Moore that, after Faretta, the Supreme Court

had clearly established that a request to proceed pro se is

timely if made ‘weeks before trial.’ Moore, 108 F.3d at 265.”

(emphasis added)).

C. Ineffective Assistance of Counsel

The state habeas court denied Tamplin’s ineffective

assistance of appellate counsel claim solely on the ground

that the underlying Faretta claim was meritless. It did not

address whether appellate counsel would have been

ineffective in failing to raise the claim if the claim were

meritorious. We therefore perform the remainder of the
TAMPLIN V. MUNIZ 25

ineffective assistance of appellate counsel analysis de novo.

See Visciotti, 862 F.3d at 760.

The Fourteenth Amendment’s Due Process Clause

guarantees a criminal defendant effective assistance of

counsel, as defined in Strickland v. Washington, 466 U.S. 668

(1984), during his or her first appeal as of right. Smith v.

Robbins, 528 U.S. 259, 285 (2000); Evitts v. Lucey, 469 U.S.

387, 396 (1985). To prevail, the defendant must show, first,

“that counsel’s performance was objectively unreasonable,

which in the appellate context requires 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 of the deficient performance,

“which in this context means that the petitioner must

demonstrate a reasonable probability that, but for appellate

counsel’s failure to raise the issue, the petitioner would have

prevailed in his appeal.” Moormann v. Ryan, 628 F.3d 1102,

1106 (9th Cir. 2010).

Tamplin’s counsel filed a declaration in the state habeas

proceeding. He explained his decision not to raise the

Faretta claim as follows:

I had no tactical reason not to raise this

claim in the initial appeal. In retrospect, it is

clear that appellant made two Faretta

motions, one in February 2005 and the second

in July 2005. . . . I, however, labored under

the mistaken belief that appellant had made

only one Faretta motion, the one in February,

which was granted. The transcript of the July

2005 motion was not in the record on appeal

and I did not get a copy of it (from appellant’s
26 TAMPLIN V. MUNIZ

wife) until yesterday, May 24, 2007. Once I

saw it I realized my mistake and took

immediate steps to bring this matter before the

court. The denial of the Faretta motion is a

potentially meritorious constitutional claim

that should have been raised in the initial

appeal. That it was not raised is due entirely

to my neglect . . . .

As the declaration shows, Tamplin’s appellate counsel had no

tactical reason to refrain from raising the Faretta claim. He

simply made a mistake. The record should have alerted

counsel to the need to investigate further—especially since

denial of a defendant’s rights under Faretta is “one of those

rare constitutional errors that requires automatic reversal

because it amounts to a structural defect.” United States v.

Withers, 638 F.3d 1055, 1065 (9th Cir. 2011); see also

Frantz, 533 F.3d at 734.

Tamplin had a compelling claim to relief under Faretta. 

See supra, Sections III.A–B. To say the least, counsel’s

failure to raise that claim undermines confidence in the

outcome of Tamplin’s appeal. Strickland, 466 U.S. at 694. 

Tamplin was therefore prejudiced by his counsel’s deficient

performance. See Delgado v. Lewis, 223 F.3d 976, 981 (9th

Cir. 2000) (finding that appellate counsel’s failure to raise

meritorious claims on appeal prejudiced Delgado where

“there were deficiencies in the trial court proceedings

significant enough to warrant reversal”).

Because appellate counsel’s performance was

constitutionally deficient and Tamplin was prejudiced by his

counsel’s errors, Tamplin was denied his Fourteenth
TAMPLIN V. MUNIZ 27

Amendment right to effective assistance of appellate counsel. 

Smith, 528 U.S. at 285.

Conclusion

For the foregoing reasons, we reverse the judgment of the

district court and remand with instructions to grant the writ of

habeas corpus.

REVERSED and REMANDED.

HAWKINS, Circuit Judge, dissenting:

If this habeas petition were not governed by the AEDPA

regime and Supreme Court authority as to when the relief

requested here could or could not be granted, I might well

agree with my colleagues. However, 28 U.S.C. § 2254(d)

bars relief on a claim adjudicated on the merits in state court

unless that court’s decision was contrary to federal law then

clearly established in Supreme Court holdings or involved an

unreasonable application of such law, or was based on an

unreasonable determination of the facts in light of the record

before the state court. Harrington v. Richter, 562 U.S. 86,

98–100 (2011).

This court must first determine what constitutes “clearly

established Federal law, as determined by the Supreme Court

of the United States.” Lockyer v. Andrade, 538 U.S. 63, 71

(2003). In analyzing claims, we are limited to the holdings,

as opposed to the dicta, of Supreme Court cases that existed

at the time the state court issued its ruling. Id.; Howes v.

Fields, 565 U.S. 499, 505 (2012). However, we may not
28 TAMPLIN V. MUNIZ

issue the writ simply because we conclude that the relevant

state court decision applied the law erroneously or

incorrectly. Lockyer, 538 U.S. at 75–76. A state court

decision precludes federal habeas relief so long as

“fairminded jurists could disagree” as to the correctness of

the state court’s decision. Harrington, 562 U.S. at 101.

The majority first concludes the state court made an

unreasonable factual finding that Morris was substituted as

counsel for Tamplin. Although the original minute order is

not a picture of clarity, as it both checks a box indicating that

Morris was subbed in and also appears to state he was granted

a continuance on “motion to file a sub into case,” the next

two orders entered by the court on June 30 and July 8 reflect

Morris as the defense counsel of record and all parties,

including Tamplin, proceeded as though Tamplin were

represented by counsel (Morris) and that if Tamplin wished

to change his mind, a new Faretta request would be

necessary. So, too, do I.

The majority further concludes the California state courts

unreasonably applied Faretta and thus violated his due

process right to represent himself by denying the renewed

request. 422 U.S. at 819; see Adams v. Carroll, 875 F.2d

1441, 1444 (9th Cir. 1989) (“The Sixth Amendment’s

guarantee of assistance of counsel is unusual among

constitutional rights in that it is also implicitly a guarantee of

its opposite, the right to refuse counsel.”). I am not

convinced the issue is so clearcut, nor that the state court

decision was objectively unreasonable under the

circumstances.

Here, the state trial court gave two reasons for declining

to grant Tamplin’s second request to represent himself: 
TAMPLIN V. MUNIZ 29

(1) the timing of the request, given its proximity to the

scheduled trial date, and (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 could not handle personally,

especially dealing with rules of the court. On consideration

of the state habeas petition, and contrary to the majority’s

interpretation of the record, the state habeas court fully

agreed with the trial court’s assessment and reasoning,

including the need to assert the right within a reasonable time

before the commencement of trial, but also specifically

elaborated that Tamplin’s attempted hiring of attorneyMorris

shortly before the request indicated he was not unequivocal

in the desire to represent himself, but appeared to be

searching for a compatible attorney.

1

Under AEDPA, we may look only to Supreme Court

decisions to determine what constitutes “clearly established

federal law.” Murray v. Schriro, 745 F.3d 984, 997 (9th Cir.

2014) (“Our precedent cannot be mistaken for clearly

established Supreme Court law.”). Faretta itself offers no

guidance on the equivocal issue, nor does any Supreme Court

precedent since it was decided. And this court has also

1 The state habeas court cites both federal and state law regarding the

timeliness of the motion, described both of the trial court’s reasons for

denying the request, including that “timeliness is a substantial factor” and

then concluded that “under these circumstances,” the right to selfrepresentation had not been violated. I view this as fully incorporating the

trial court’s reasoning and then elaborating further on its own. The habeas

court also offered a third reason for denying Tamplin’s petition, in that he

did not subsequently renew his request to represent himself. I do not

address the validity of this additional “acquiescence” reasoning because,

as discussed below, I believe the first two reasons sufficient to uphold the

ruling.
30 TAMPLIN V. MUNIZ

explained that although Faretta “clearly established some

timing element,” the “precise contours of that element” are

unknown and “[a]t most, we know that Faretta requests made

‘weeks before trials’ are timely.” Marshall v. Taylor, 395

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

In light of the record as a whole, I cannot say that the

California state court’s decision was an unreasonable

application of Faretta. The timing of the renewed request

was very close to trial and Tamplin admitted he could not be

ready in time for the scheduled trial date. As this court has

noted, “Faretta does not articulate a specific time frame

pursuant to which a claim for self-representation qualifies as

timely.” Stenson v. Lambert, 504 F.3d 873, 884 (9th Cir.

2007). Moreover, Tamplin’s attempt to hire counsel shortly

before trial, and for the acknowledged purpose of helping him

with matters he did not feel he could personally handle, such

as complying with rules of court, definitely calls into question

the unequivocal nature of his request. See id. at 882–83

(Washington Supreme Court determination that petitioner’s

request was equivocal in light of the record as a whole was

not objectively unreasonable). Although Tamplin was

2

I acknowledge that in an older case, Moore v. Calderon, 108 F.3d

261, 264 (9th Cir. 1997), this court, applying pre-AEDPA standards, held

that a state court denial of a defendant’s motion to represent himself made

two weeks and two days before scheduled trial was timely and granted the

writ. In dicta, the court further suggested the result would be the same if

the then-new AEDPA standards applied to the case, id. at 263–64,

although Ninth Circuit law at the time clearly held they did not, Jeffries

v. Wood, 103 F.3d 827 (9th Cir. 1996) (en banc), a holding subsequently

confirmed by the Supreme Court in Lindh v. Murphy, 521 U.S. 320

(1997). I would not follow Moore’s dicta, and instead focus on

subsequent cases actually governed by the AEDPA standard which have

stated that Faretta “clearly established” no more than that requests made

“weeks before trial” are timely. See Stetson, 504 F.3d at 884.
TAMPLIN V. MUNIZ 31

perhaps “unequivocal” after the point in time that he made his

renewed request to represent himself, Faretta certainly does

not preclude the trial court’s consideration of the entire

record, nor offer any guidance whatsoever on what might

constitute equivocation by a defendant, since the defendant in

Faretta never wavered in his desire to represent himself in the

way Tamplin did here.3

In sum, I cannot find a holding of the Supreme Court that

clearly requires relief under the circumstances present here,

and its most recent pronouncements suggest otherwise. See

Kernan v. Cuero, 138 S. Ct. 4, 8 (2017). In Kernan, the

Supreme Court recently made clear that AEDPA does not

permit: (1) granting relief where fairminded jurists could

disagree with the reading of Supreme Court precedent, or

(2) ordering relief when there was no Supreme Court decision

clearly entitling the defendant to the relief he seeks, or

(3) relying on circuit precedent, state court decisions,

treatises, law review articles, or anything beyond established

Supreme Court precedent for AEDPA purposes. Id. at 9.

Cognizant of these parameters, I find it is at least debatable

under Faretta whether Tamplin’s renewed request was

sufficiently timely and whether he was truly unequivocal in

desiring to represent himself. Thus, in my opinion, Tamplin

has not established that the state court’s decision was “in

direct and irreconcilable conflict with Supreme Court

3 The majority points out that a footnote in Faretta indicates he

attempted on three occasions to have the trial court appoint and pay for

private counsel for him. 422 U.S. at 808 n.5. The significance of thisfact

is not discussed in the opinion. However, trying to get the court to pay for

counsel of choice is still a step removed from what Tamplin did

here–actually hiring such counsel and appearing in court with him shortly

before trial, representing to the trial judge that he now desired such

representation rather than continuing on pro se.
32 TAMPLIN V. MUNIZ

precedent,” Murray, 745 F.3d at 997, nor has he shown that

the state court ruling applying Faretta “was so lacking in

justification that there was an error well understood and

comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington, 562 U.S. at 103. I

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