UNITED STATES COURT OF APPEALS TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, No. 09-3206 v. (D. Kan.) (D.C. No. 2:08-CR -20139-001-KHV) SAMUEL L. HENDERSON, Defendant-Appellant.

ORDER AND JUDGMENT *

Before HENRY , PORFILIO , and BRORBY , Circuit Judges. **

Samuel L. Henderson was convicted afte r a jury trial of being a felon in possession of a firearm. In this appeal, M r. Henderson argues that the district court abused its discretion in denying his motion for a continuance. He argues that because the district court denied his motion for a continuance he could not proceed pro se , which violated his Sixth Amendment right to self-representation. We are not persuaded by these arguments and therefore affirm Mr. Henderson’s conviction.

* This order and judgment is not binding preced ent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, howeve r, for its persuasive value consistent with Fed. R. A pp. P. 32.1 and 10th Cir. R. 32.1.

** After examining the briefs and appella te record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral argument. FILED United States Court of Appeals Tenth Circuit 

### June 14, 2010 Elisabeth A. Shumaker Clerk of Court2 I. BACKGROUND A federal grand jury charged Mr. Henders on with being a felon in possession of a firearm in violation of 18 U. S.C. § 922(g)(1). At Mr. Henderson’s initial appearance on October 16, 2008, the district court appointed Bruce Kips to represent him, and set the trial date for January 26, 2009. Less than two weeks before trial, Mr. Kips filed a motion to withdraw as counsel, to appoint new counsel, and to continue th e trial. At a hearing on the motion, Mr. Henderson contended that he believed Mr. Kips was not ac ting in his best interest because Mr. Kips was unable to negotiate a pl ea bargain. Noting the untimeliness of the motion and finding Mr. Henderson’s argumen ts unpersuasive, the court denied the motion. At a status hearing less than a week befo re trial, Mr. Kips m oved to continue the trial so his client could consider a plea bargai n. Mr. Kips also noted that Mr. Henderson still desired new counsel. The district cour t granted a continuance of one week and set the trial date for February 2, 2009. On the day of the trial, Mr. Kips info rmed the court that there had been a breakdown in communication and that Mr. He nderson had become unwilling to listen to his advice. Mr. Henderson indicated that he would like to represent himself. After noting that “it looks . . . like [Mr. Henderson is] playing games with the Court,” the court questioned Mr. Henderson on his re asoning and if he was ready for trial. Rec. vol. II, at 12. Mr. Henderson informed the court that he still felt that Mr. Ki ps did not have his client’s best interest in mind, but that he was unprepared for trial if proceeding pro se .3 The district court found Mr. Henderson’s conflict with counsel neither “plausible” nor “credible,” and after determining that Mr . Henderson had no prior legal education or experience, the court refused to continue the trial. Id . at 17. Although stating that it would allow Mr. Henderson to proceed pro se , the district court advised against him doing so. The district court indicated that Mr. Henderson could represent himself with Mr. Kips as standby counsel or continue w ith Mr. Kips as his counsel. Mr. Henderson chose to proceed to trial w ith Mr. Kips as counsel. At trial the jury found Mr. Henderson gu ilty of being a felon in possession of a firearm and the district court sentenced M r. Henderson to 103 months’ imprisonment. II. DISCUSSION Mr. Henderson argues that the distri ct court’s denial of his motion for a continuance, (a) constituted an abuse of disc retion, and (b) violated his Sixth Amendment right to self-representation. We find Mr. He nderson’s arguments unavailing. The district court considered Mr. Henderson’s motion, ma de the proper inquiries, acted well within its discretion, and gave Mr. Henderson the opportunity to ex ercise his right to selfrepresentation. Mr. Henderson cannot demonstrat e that the district court either abused its discretion or denied him his constitutional right. A. The district court did not abuse its dis cretion when it denied Mr. Henderson’s motion for a continuance. Mr. Henderson argues that the district court abused its disc retion by refusing to grant his February 2, 2009, motion for a con tinuance. We review the district court’s denial of the motion for a continuance for abuse of discretion. United States v. Pursley ,4 577 F.3d 1204, 1227 (10th Cir. 2009), cert. denied , 130 S. Ct. 1098 (2010). Abuse of discretion occurs only if the district cour t’s denial was “‘arbitrary or unreasonable and materially prejudiced the defendant.’” Id . (emphasis in original) (quoting United States v. Dowlin , 408 F.3d 647, 663 (10t h Cir. 2005)). “[T]he dist rict court enjoys broad discretion on matters of continuances, even when the parties implicate Sixth Amendment issues.” United States v. Mendoza-Salgado , 964 F.2d 993, 1016 (10th Cir. 1992). To determine the reasonablene ss of the court’s decision we consider four factors: [1] the diligence of the party reques ting the continuance; [2] the likelihood that the continuance, if granted, would accomplish the purpose underlying the party's expressed need for the cont inuance; [3] the in convenience to the opposing party, its witnesses, and th e court resulting from the continuance; [4] the need asserted for the continua nce and the harm that [Mr. Henderson] might suffer as a result of the district court’s denial of the continuance. Pursley , 577 F.3d at 1227-28 (quoting United States v. Rivera , 900 F.2d 1462, 1475 (10th Cir. 1990) (en banc)). Upon considering these factors, we hold that the district court’s decision was reasonable under the circumstance s and did not prejudice Mr. Henderson. First, a petitioner’s diligence may be demonstrated by a timely request and a logical need for the continuance. See Pursley , 577 F.3d at 1228; see also Rivera , 900 F.2d at 1475. Mr. Henderson argues that he diligently pursued a co ntinuance, seeking it immediately after demonstra ting his desire to proceed pro se , on the day of trial. However, it is well established that a request fo r a continuance on the day of trial is not timely. See Rivera , 900 F.2d at 1475 (holding that de fendant’s request for a continuance was not diligent when made five days before trial after retaining counsel for six weeks). Furthermore, the record indicat es that during the two weeks before trial, Mr. Kips had5 visited his client three times and received no communication from his client. The district court indicated it believed Mr. Henderson was “p laying games” with the court. Rec. vol. II, at 12. The district court’s conclusi ons as to diligence were reasonable. Second, we consider whether the gr ant of the requested continuance will accomplish the party’s purpose. Pursley , 577 F.3d at 1228. Mr. Henderson argues that the continuance would have provided him with more time so that he could have prepared represent himself. However, Mr. Henderson has failed to show how the additional time would have prepared him to re present himself. When asked how he could do a better job representing himself than his attorney, Mr. Henderson failed to provide any facts that showed he could do a better job. Third, the court was justified in findi ng that the length of time a continuance would require would be a great inconvenie nce on the government, witnesses, and the

court. See id. (holding that a 24-week delay wo uld cause an undue burden on the opposing parties, witnesses, and the court). The district court stated that a continuance would be lengthy due to “back-to-back trials fo r . . . 80 court days.” Rec. supp. vol. I, at 20. Furthermore, the government maintained that this was a “no-brainer” case that should not take more than two days, and the court had al ready given the parties an extra week to prepare. Rec. vol. II, at 11. Based on the length of time of the continuance and the burden it would place on the opposing party, witnesse s, and the court, the district court’s conclusion was reasonable. Fourth, we agree with the district cour t that Mr. Henderson has failed to show a need for the continuance a nd the potential harm he w ould incur without one. See Rivera ,6 900 F.2d at 1476 (holding that because “there was no showing that the failure to grant a continuance resulted in defendant’s trial counsel being inadequately prepared” the defendant was not materially prejudiced). Mr. Henderson has not provided this court with any reason how a continuance would he lp him defend against the charge or the elements that the government intends to prove. See Pursley , 577 F.3d at 1229 (finding that the defendant “[made] no mention of how the lack of time actually inhibited his defense at trial”). Furthermore, no harm oc curred from the district court’s denial of a continuance because it did not pr event Mr. Henderson from proceeding pro se . The district court clearly informed M r. Henderson that he could proceed pro se if he chose to do so, and would allow Mr. Kips to act as st and-by counsel to assist. Had Mr. Henderson opted to proceed pro se , the record indicates that th e district court would have acquiesced. We conclude that, under Pursley , the district court did no t abuse its discretion in denying the continuance. 577 F.3d at 1227-28. B. The district court’s denial of contin uance did not deny Mr. Henderson the right to self-representation. Mr. Henderson also claims that the dist rict court’s denial of his request for a continuance effectively stripped him of his Si xth Amendment right to represent himself. We review de novo whether a Sixth Amendment violation has occurred. United States v. Mackovich , 209 F.3d 1227, 1236 (10th Cir. 2000). There are three requirements that a defendant must meet before he has the right to represent himself. Id . “First, the defendan t must ‘clearly and un equivocally’ assert his7 intention to represent himself.” Id . (citing United States v. Floyd , 81 F.3d 1517, 1527 (10th Cir. 1996)). “Second, the defendant must make this assertion in a timely fashion.” Id . (citing United States v. McKinley , 58 F.3d 1475, 14 80 (10th Cir. 1995)). “Third, the defendant must ‘knowingly a nd intelligently’ relinquish the be nefits of representation by counsel.” Id . (citing United States v. Boigegrain , 155 F.3d 1181, 1189 (10th Cir. 1998)). Mr. Henderson fails to establish either of the first two requirements. Mr. Henderson has failed to clearly an d unequivocally assert his intention to represent himself. “This requirement ‘is ne cessary to protect against an inadvertent waiver of the right to counsel by a defendant's occasional musings on the benefits of selfrepresentation.’” Id . (quoting United States v. Frazier-El , 204 F.3d 553, 558 (4th Cir. 2000). Mr. Henderson initially indicated that he would like to represent himself, however he withdrew that request because he was not prepared for trial that day. As noted, the district court admonished Mr. Henderson about playing games, and “[w]e have repeatedly shown concer n with the use of the right to wa ive counsel as a ‘cat and mouse’ game with the courts.” United States v. Reddeck , 22 F.3d 1504, 1510 (10th Cir. 1994). “Furthermore, a defendant may not manipulate th is right in order to delay or disrupt his trial.” Hamilton v. Groose , 28 F.3d 859, 862 (8th. Cir. 1994). Mr. Henderson retained Mr. Kips as counsel in October, he appear ed in court several times with appointed counsel, he often refused to communicate with his counsel, and he received a one week continuance. We agree with the district court that Mr. Henderson’s request for selfrepresentation on the day of trial wa s a tactic to delay the court. See Mackovich , 209 F.3d at 1237 (identifying the grant of three con tinuances, seven-month re presentation by court-8 appointed counsel, untimely requests for self-r epresentation and threats to “stand mute” as “more than adequate to support the distri ct court’s finding that [defendant’s] requests for self-representation were merely a tactic for delay.”). Finally, Mr. Henderson failed to assert his right in a timely fashion. See United States v. Smith , 413 F.3d 1253, 1281 (1 0th Cir. 2005) (holding defendant’s request to represent himself six days before trial to be untimely). Given Mr. Henderson’s untimely and less than clear assertion of his right to re present himself, we conclude that the district court’s denial of a continuance did not vi olate Mr. Henderson’s Sixth Amendment right to self-representation. III. CONCLUSION Accordingly, we AFFIRM M r. Henderson’s conviction. Entered for the Court,

Robert Henry United States Circuit Judge