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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Ricky Lee Jarrett, 

Petitioner, 

v. 

Charles L Ryan, et al., 

Respondents.

No. CV-18-00892-PHX-DLR(CDB)

ORDER 

Before the Court is the Report and Recommendation (“R&R”) of Magistrate Judge 

Camille D. Bibles (Doc. 18) regarding Petitioner’s Petition for Writ of Habeas Corpus filed 

pursuant to 28 U.S.C. § 2254 (Doc. 1). The R&R recommends that the petition be denied 

and dismissed with prejudice. The Magistrate Judge advised the parties that they had 

fourteen days from the date of service of a copy of the R&R to file specific written 

objections with the Court. Petitioner filed an objection to the R&R on May 29, 2019. (Doc. 

23.) Respondents did not file a response. 

 The Court has considered the objections and reviewed the R&R de novo. See Fed. 

R. Civ. P. 72(b); 28 U.S.C. § 636(b)(1). The Magistrate Judge identified and stated the 

correct habeas review standard set forth in 28 U.S.C. § 2254(d). (Doc. 18 at 4). In applying 

that standard, the Magistrate Judge correctly noted that “An unreasonable application of 

federal law is different from an incorrect one.” Id. “A state court’s determination that a 

claim lacks merit precludes federal habeas relief so long as fair-minded jurists could 
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disagree on the correctness of the state court’s decision.” Woods v. Etherton, 136 S.Ct. 

1149, 1151 (2016) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). 

 In his objection, Petitioner claims that the R&R incorrectly applies the law regarding 

his right to represent himself, as set forth in Faretta v. California, 422 U.S. 806, 835 (1975). 

His objection stems from his discussion with the trial judge in open court on September 

20, 2012, regarding his written motion to waive counsel. Petitioner told the trial judge that 

he was not satisfied with the quality of representation from his appointed counsel and that 

he wanted to represent himself. He stated that he would be satisfied if an attorney named 

Winchell would represent him. The trial judge informed Petitioner that he did not have a 

choice of appointed counsel. (Doc. 23 at 19.) 

The trial judge then informed Petitioner that she was going to defer ruling on his 

motion. She stated that she would remove his attorney and appoint a new attorney. She 

indicated that if Petitioner was not satisfied with his new attorney, he could renew his 

motion to waive counsel and represent himself. (Id. at 19-20.) In response, Petitioner told 

the trial judge “Whoever you assign them, I’m just going to go ahead and file another 

motion to proceed pro per. I mean, I’m going to end up doing it [if] you assign me another 

attorney, it’s going to be another motion to proceed in pro per.” (Id. at 20.) The trial judge 

responded that if Petitioner filed another motion to represent himself, it would tell her that 

Petitioner “may not be competent to make the decision to go pro per” and “may not be fully 

understanding what the issues are in the case[.]” (Id. at 20-21.) 

Petitioner argues that the trial judge’s comments placed him in a “conundrum.” On 

one hand, the trial judge told Petitioner he could could renew his request to represent 

himself, but on the other the trial judge stated that a renewed request would be considered 

an indication of incompetence to represent himself. Petitioner argues that he did not renew 

his request to represent himself because the trial judge’s statements conveyed to him that 

it would be futile to do so. 

Faretta established the general rule that a trial court may not deny a request to waive 

counsel if it finds that the right is asserted clearly, unequivocally, voluntarily, and 
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intelligently. Petitioner made such an assertion. The Supreme Court, however, has not 

determined whether a trial court may defer or delay ruling on such a motion. Consequently, 

there is no clearly established federal law which would prevent the trial court from doing 

so. Stated differently, there presently is no clearly established constitutional right to have 

a trial court rule immediately on a Faretta motion, as opposed to deferring or delaying a 

ruling in the manner the trial court did here. 

Further, Petitioner’s argument requires a determination that the trial judge’s 

comments prevented him from renewing his motion. In denying Petitioner’s state court 

claim, the trial court implicitly found that Petitioner’s failure to renew his Faretta motion 

was the result of a voluntary decision, rather than a determination that such a request would 

be futile. In reviewing the state court’s finding that Petitioner voluntarily failed to renew 

his Faretta motion, this Court must decide whether that decision was “based on an 

unreasonable determination of the facts in light of the evidence presented in the State court 

proceeding.” Harrington, 562 U.S. at 98. Although the statements by the trial court could 

be interpreted as Petitioner suggests, fair minded jurists could disagree. At the September 

20, 2012 Faretta hearing, Petitioner displayed a willingness and capacity to address the 

court regarding his concerns about counsel. He expressed a desire to accept representation 

from a specific attorney. He appeared at a settlement conference and at trial without 

indicating a desire to proceed without counsel. (Doc. 13-1 at 33-40, 56-58; Doc. 13-2.) 

Considering this evidence, the Court finds that the trial court’s factual finding was 

reasonable. Petitioner’s objection therefore is overruled, the R&R will be accepted, and 

the petition will be denied. 

Rule 22(b) of the Federal Rules of Appellate Procedure provides that when a habeas 

petition appeals a district court’s judgment, the district judge who rendered the judgment 

must either issue a certificate of appealability (“COA”) or state the reasons why a COA 

should not issue. A COA may issue only when the petitioner “has made a substantial 

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This can be shown 

by demonstrating that “reasonable jurists could debate whether (or, for that matter, agree 
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that) the petition should have been resolved in a different manner” or that the issues were 

“adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473, 

484 (2000) (internal quotations and citation omitted). 

The Court finds that reasonable jurists could debate its resolution of Petitioner’s 

Faretta claim. In the event Petitioner appeals from this Court’s judgment, the Court will 

grant a COA as to this issue only. The Court declines to issue a COA with respect to the 

remaining issues in the petition because, for reasons stated in the R&R, Petitioner has not 

made a substantial showing of the denial of a constitutional right as to those issues. 

IT IS ORDERED that the R&R (Doc.18) is ACCEPTED and the petition (Doc. 

1) is DISMISSED with prejudice. 

IT IS FURTHER ORDERED that, in the event Petitioner appeals from this 

Court’s judgment, a COA and leave to proceed in forma pauperis on appeal are 

GRANTED with respect to Petitioner’s Faretta claim only because reasonable jurists 

would find the ruling debatable, and because Petitioner has made a substantial showing of 

the denial of a constitutional right. 

IT IS FURTHER ORDERED that the Clerk of the Court shall enter judgment 

denying and dismissing the petition (Doc. 1) with prejudice and shall terminate this action. 

Dated this 19th day of July, 2019. 

Douglas L. Rayes 

United States District Judge