PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ JIMMIE WELLMON, Petitioner - Appellant,

v. COLORADO DEPA RTMENT OF CORRECTIONS; THE ATTORNEY GENERAL OF THE STATE OF COLORADO, Respondents - Appellees. No. 19-1002

_________________________________ Appeal from the United States District Court for the District of Colorado (D.C. No. 1:17-CV-02222-WJM)

_________________________________ John T. Carlson, Ridley, McGreevy & Wi nocur, P.C., Denver, Colorado, for PetitionerAppellant. Christine Brady, Senior Assist ant Attorney General (Philip J. Weiser, Attorney General, with her on the brief), Denver, Co lorado, for Respondents-Appellees.

_________________________________ Before BACHARACH , KELLY , and CARSON , Circuit Judges.

_________________________________ CARSON , Circuit Judge.

_________________________________ Although Congress has given us the ab ility to review state criminal convictions, our power to grant a petitione r relief is limited to correcting extreme FILED United States Court of Appeals Tenth Circuit 

### March 18, 2020 Christopher M. Wolpert Clerk of Court2 malfunctions in the state criminal justice sy stems. In so doing, we review a state court’s decision for reasonableness and fo cus on what the state court knew and did when it made its decision. And unde r 28 U.S.C. § 2254(d), we make our reasonableness determination c onsidering the arguments the petitioner raised in state

court. In this appeal, Petitioner Jimmie Wellmon seeks to set aside his state court convictions for attempted first-degree mu rder, assault, mena cing, and witness tampering. We granted a certificate of appealability so Pe titioner could appeal whether he validly waived his right to counse l and, if so, whether the state trial judge reasonably rejected his pretrial motion to retract his waiver. The federal district court rejected Petitioner’s cl aims and dismissed hi s petition. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.
I. Petitioner brutally assaulted a female vi ctim in a Denver hot el room. After a trial in which he represented himself, a Colorado jury convicted Petitioner of attempted first-degree murder , assault, menacing, and witn ess tampering. The state trial court sentenced Petitioner to seventy years’ incarcer ation. The Colorado Court of Appeals (“CCA”) affirmed Petitioner’s convictions on direct appeal. Both the Colorado Supreme Court and the United Stat es Supreme Court denied certiorari. Petitioner then filed this civil action in the District of Co lorado, collatera lly attacking his state court conviction.3 II. The standards set forth in the Antiterrorism and Effect ive Death Penalty Act of 1996 (“AEDPA”) guide our review of 28 U.S. C. § 2254 applications. We may grant a petitioner relief only if the state court’s decision was “contrary to, or involved an unreasonable application of, cl early established Federal la w, as determined by the Supreme Court of the United States” or “w as based on an unreas onable determination of the facts in light of the evidence pres ented in the State Court proceeding.” 28 U.S.C. § 2254(d). “Clearly established law is determ ined by the United States Supreme Court, and refers to the Court’ s holdings, as opposed to the dicta.” Washington v. Roberts, 846 F.3d 1283, 1286–87 (10th Cir. 2017). “Only Supreme Court law announced by the time of the stat e-court decision on the merits qualifies as ‘clearly established law.’” Id. at 1287. If the state court comes to a conclusion “opposite to that reached by the Supreme Court on a question of law” or “decides a case differently than the Cour t has . . . on materially indi stinguishable facts,” such a decision is “contrary to” clear ly established law. Id. And if “the state court identifies the correct governing legal prin ciple . . . but unreasonably applies that principle to the facts of the prisoner’s case,” the state court’s decision is an “unreasonable application” of Supreme Cour t law. Id. (altera tion in original).
III. Our resolution of Section 2254 claims “i s highly dependent on the standard of review required by AEDPA”—which limit s our role in reviewing state court judgments. Washington, 846 F.3d at 1287. To determine whether Petitioner is4 entitled to relief, we must analyze what occurred at tr ial and on appeal, determine what standard the CCA applied, analyze whet her that standard c onflicted with clearly established United States Supreme Court pr ecedent, and finally decide whether the court unreasonably applied that standard.
A. The state trial court appointed the O ffice of the Colorado State Public Defender to represent Petitioner. Petitione r quickly sought to dismiss his assigned public defender. Petitioner alleged the public defender had ties with the witnesses in the case and questioned his counsel’s ab ility to be objective about potentially exculpatory evidence. Pe titioner also challenged hi s counsel’s “ability to significantly produce effective work product, and to provide Defendant with effective assistance of counsel in the preparatory phase of this proceeding.” Petitioner said he had “nothing but confrontations” with hi s public defender a nd that the public defender did not represent him vigorously or with zeal. Pe titioner submitted a list of grievances with his motion, including co mplaints that the pub lic defender ignored calls from Petitioner and his frie nds and family. The trial court held a hearing on the issue and carefully advised Petitioner of hi s right to counsel. On the record during that hearing, Petitioner unequivocally waived his right. Petitioner then asked the trial court to appoint advisory counsel a nd an investigator—which it did. During Petitioner’s time as a pro se defendant, he made several phone calls to his former girlfriend, Estelle Allen. But Allen was not just a former girlfriend, she was a witness for the state. The prosecution planned to call Allen to testify that5 Petitioner assaulted her in a ma nner similar to the attack at issue. The court revoked Petitioner’s phone privileges. Pe titioner also recruited Danny Padilla—the resident of an adjoining jail cell—to cal l Allen. Prosecutors alle ged that Padilla sought to influence Allen’s testimony at Petitioner’s direction. Pa dilla thus b ecame a witness to the witness tampering charge. By trial, Petitioner ma rried Allen. Petitioner’s relationship with advisory counsel quickly soured. Advisory counsel moved to withdraw. Advisory counse l thought her further participation in the case might undermine the ethical standards of the law and place her “in jeopardy for activities of omission rather than commission.” Advisory co unsel told the court that her last two court appearance s involved “the most blatant examples of the Defendant purposefully trying to mislead the Court.” The trial court allowed her to withdraw. Petitioner then asked the court to reappoint the public defender’s office. The court at first denied the request, telling Petitioner that he had lied, manipulated, and misbehaved in subtle and cl ever ways for months. The pr osecution asked the court to reconsider its ruling, opini ng that the investigators contributed to the failed relationship between Petitioner and advisory counsel. The court granted the request and re-appointed the Office of the Colora do State Public Defender. A new deputy public defender entered his appearance. Seven weeks before the trial date, the pub lic defender told the trial court of a conflict of interest and as ked to withdraw. The problem—unnoticed at the time of his appointment—was that the public defender’s office also represen ted Padilla. The public defender explained that he could not interview Pad illa, a crucial witness in the6 case who potentially had exculpatory informat ion, because of the conflict. The public defender also admitted that he and Padilla’s deput y public defender exchanged confidential information before learning of the conflict. The public defender asserted Petitioner’s constitutional right to conflict -free assistance of counsel and informed the court that the conflict mate rially limited his ability to represent Petitioner. In response to the conflict, the prosecu tion agreed not to call Padilla as a witness and to grant i mmunity to him if Petiti oner called him at tria l. The trial court determined that the potential conflict of interest was sp eculative and ameliorated by the prosecution’s agreements, as well as the court’s ability to sever the witness tampering counts and try them with diffe rent counsel, if ne cessary. Petitioner subsequently soughtto dismiss his new pub lic defender and appoint alternative defense counsel, while the new public defende r moved to withdraw based on irreconcilable differences with Petitione r. When the court asked the public defender why he sought to withdraw, the pub lic defender responded that “there just seems to be a concerted effort to abus e counsel.” Specifically, Petitioner made threats against the public defender and an in tern in the office. The public defender told the court that “consisten tly the message from Mr. Wellmo n is that he needs to be in control of everything and cannot tolera te counsel making d ecisions.” Petitioner made clear that he did not wantto proceed to trial pro se, but he also made clear that he wanted new counsel. The pu blic defender told the court that he could be ready for trial but that his cross-examination of A llen would be restricted because of the conversations between Allen a nd Padilla. Specifically, th e public defender stated, “I7 don’t think it would be appr opriate for me to bring up anything related to Danny Padilla and Danny Padilla is on tapes talking to her.” He al so stated that Padilla was the only impeachment witness if Allen were to deny any conversations between the two occurred. Put simply, the new pub lic defender had confidential information about Padilla he could not share with Pe titioner and confidentia l information about Petitioner that he could not share with Padilla. The public defender told the court that Petitioner wanted him to call Padilla as a witness but that he believed the potential risk in doing so outweighed any favorable testimony Padilla might offer. The court then told Pe titioner that he created the Padilla issue as a result of his misbehavior and improper conduct in violation of a judicial order not to contact witnesses. The court also engaged in the following exchange with Petitioner: THE COURT: Well, in any event, what we have here a nd now is a conflict with Mr. Padilla that was created out of, essentially, thin air by you and a conflict with [the public defender] that was created out of thin air by you. Under these circumstances, it seems to me that as well as the history of this case, which is well documented, it is my view that you either proceed with [the public defender] on September 4th or you proceed pro se, having not only knowingl y and willingly on rep eated occasions waiv ed your right to counsel expressly but that by your overa ll action in this case you have in my view, clearly and unequivocally waivedyour right to counsel. If your conduct in this case is pe rmitted to entitle you to, at this point, alternative defense counsel, it is my view that a ny defendant at any time could create these conflicts simply by similar type of behavior. Anytime you don’t like your public defender, you can directly or indirectly do all sorts of things and, boom, you have manipulated the systemand, indeed, taken control of the system, thereby forcing the Court to cr eate—to give you another attorney. If you don’t like that attorney, the same thing can happen. The law affords the Court a remedy in this situation, and th at is to find that you have, by your conduct and the totality of the circumstan ces, impliedly waived your right to8 counsel, and I am prepared to make that ruling, if that’s what you want me to do. THE DEFENDANT: If it’s a choice be tween proceeding with [the public defender] and pro se, it leaves me no choice but to go pro se. The court then denied the public defender’s motion to withdraw and again advised Petitioner of his right to counsel. Following that advisement, and the court’s refusal to appoint another advisory counsel, Peti tioner stated he would rather represent himself than have the public defender repres ent him. The court then found Petitioner knowingly, intelligently and voluntar ily waived his right to counsel. The court held another hearing one week before trial and told Petitioner that his failure to particip ate at trial would not be grounds for a mistri al. Petitioner did not engage with the court at that hearing. He did, however, seek the public defender’s reappointment. In support, he said he c ould not prepare for trial or defend himself adequately. The public defender said he c ould be prepared to proceed with trial on schedule. The court denied the motion, stating that Petitioner had multiple advisements of his right to counsel and made a strate gic, tactical, knowing, and intelligent decision to waive counsel and pr oceed pro se. The court determined that “any problems he faces regarding the upcomi ng trial are self-inflic ted, and knowingly
so.” At trial, Petitioner reiterated his desire for an attorney. The court told him that he chose to be in this predicament and shou ld “just make the best of it.” The Court reiterated that Petitioner woul d not allow anyone to repres ent him nor did he allow an advisory counsel to assist hi m. After reviewing all of th e motions and transcripts, the9 court told Petitioner that he had made it impossible for anyone to represent him. Petitioner did not make an opening statement, cross-examine any w itnesses, or put on a defense. After his conviction, the trial court ag ain appointed the same public defender to represent Petitioner at sentencing. Th e public defender told the court that he should have been appointed before tr ial. The court disagreed.
B. On appeal to the CCA, Petitioner challenge d the validity of his waiver of the right to counsel. See Farett a v. California, 422 U.S. 806, 836 (1975) (providing that before a defendant may act pro se, he must first affect a va lid waiver of the right to counsel). Petitioner argued th at he had the right to conflict-free counsel. He contended that even if th e prosecution did not call Pa dilla, his defense required impeaching Padilla through Allen and that the public defender’s possession of confidential information ab out both Petitioner and Pad illa warranted the public defender’s removal. Thus, Pe titioner asserted his waiver could not be valid if his only options were to represent himsel f or proceed with conflicted counsel. The CCA affirmed. It he ld the trial court properl y concluded the asserted conflict of interest did not require the public defender’s withdrawal. It based its holding on two facts in the r ecord. First, neither party intended to call Padilla as a witness at trial. And second, the trial court properly concl uded that it could sever the witness tampering counts. Thus, because his public defe nder faced no conflict after10 the trial court severed the tampering charge , the CCA held Petitioner validly waived counsel. After the Colorado Supreme Court a nd the United States Supreme Court denied certiorari, and after the state cour ts denied postconvicti on relief, Petitioner filed this habeas action in the federal district court. The di strict court agreed with the CCA’s analysis. The distri ct court found the state cour t reasonably rejected the conflict claim because the part ies agreed not to call Padilla and the trial court agreed to severe the witness tampering charge.
C. The Sixth Amendment provides that a defendant has the right to “the Assistance of Counsel for his defense.” This includes the ri ght to conflict-free counsel. Wood v. Georgia, 450 U.S. 261, 271 (1981). An “‘actual conflict,’ for Sixth Amendment purposes, is a conflict of interest that adversely affects counsel’s performance.” Mickens v. Taylor, 535 U. S. 162, 172 n.5 (2002). In joint representation cases, the evil “is in what the advocate finds himself compelled to refrain from doing.” Holloway v. Arkansas, 435 U.S. 475, 4 90 (1978) (emphasis in original). Petitioner contends the CCA did not recognize that requiring a defendant to accept representation from a conflicted lawyer is perilous terrain. He argues that no reasonable jurist could conc lude that the public defende r’s eventual repudiation of Padilla as a defense witne ss or the possible severance of the witness-tampering counts could extinguish the conflict. Petiti oner asserts the CCA neglected to address11 two items: the public defender’s self-described constraint s on cross-examining Allen and the public defender’s stated inability to investigate Padilla. In sum, Petitioner tells us that the public defender wa s torn between two clients. But we must assess the reasonablenes s of the state cour t’s decision and no more. This is because “the purpose of AEDPA is to ensure that federal habeas relief functions as a guard against extreme malf unctions in the stat e criminal justice systems, and not as a means of error corr ection.” Greene v. Fisher, 565 U.S. 34, 43 (2011) (internal quotation mark s omitted). Given that objec tive, we limit our review to the record before the state court. Id. at 44. After a ll, Section 2254 is a “backwardlooking” statute that requires an examination of the state c ourt decision at the time it was made, focusing “on what a state court knew and did.” Id. And we do not expect state courts to address arguments the pa rties do not raise. Thus, under Section 2254(d), we review the reas onableness of a state court’ s decision in light of the arguments the petitioner raised in the state court. Se e Wrinkles v. Buss, 537 F.3d 804, 817 (7th Cir. 2008) (holding that review under Section 2254 is limited to “arguments that were adjudicated on the merits in state court proceedings” and “arguments that were not pr ocedurally defaulted”). Petitioner argued to the CCA that the reme dy of neither side calling Padilla as a witness against Petitioner did not dissi pate the conflict because “the public defender would be limited in impeaching Alle n in regard to any contacts she had with Padilla.” Given the trial c ourt’s offer to sever the witn ess tampering charges, any such testimony would be irrelevant because the public defender would no longer be12 torn between two clients. For this reas on, we conclude that the CCA reached a reasonable conclusion. Petitioner now argues that the public de fender’s conflict never dissipated. Even without Padilla testifying, Petitione r claims the public defender suffered from dual loyalties. Petitioner asserts that th e ethics rules precluded the public defender from spilling the substance of the confidential informati on he had obtained into the record. But in state court Petitioner ne ver argued that the substance of the confidential information related to any topic other than witness tampering. At oral argument, Petitioner asked that we imagine Allen told Pad illa, “I’m going to lie about my 404(b) testimony.” If true, perhaps the public defender would have been limited in impeaching Allen. And if Petitioner ha d made that argument to the CCA and that court had rejected it, maybe our result today would be diffe rent. Indeed, his arguments on appeal certainly have force. But we are not considering this matter on direct appeal from a federal conviction. Petitioner’s failu re to make those arguments to the CCA sounds the d eath knell for them. Petitioner’s counsel also opined at oral argument that he is not required to simply parrot the arguments of Petitioner’s state-court c ounsel. Although we agree with counsel in in a broad sense, the cont ext of this case demands that we limit our review to the arguments Petitioner presen ted and argued to the CCA. Hawkins v. Mullin, 291 F.3d 658, 668 (10th Cir. 2002). Despite the strength of his argument on habeas review that the public defender may have known of communications that exceeded the witness tampering charges, Petitioner did not fi rst present that issue or13 argument to the CCA. As a result, the CCA ’s determination that Petitioner validly waived the conflict (and that the conflict wa s, in fact, extinguish ed) was not contrary to clearly established Un ited States Supreme Court precedent. And based on Petitioner’s argument to the CCA that the public defender would be limited in impeaching Allen her contacts with Padilla and no more, we hold the CCA reasonably concluded th at any such testimony would be irrelevant if neither side called Padilla and the c ourt severed the witness tampering charges.
D. Having concluded that Pet itioner validly waived his right to counsel, we now turn to whether the state trial court denied Petitioner’ s right to counsel when it rejected his pretrial motion to retract the waiver. Petitioner acknowledges our prior preceden ts holding that once a defendant exercises his right to defe nd himself and proceed pro se, “he does not have the absolute right to thereafter withdraw his request for self repr esentation and receive substitute counsel.” Unite d States v. Merchant, 992 F.2d 1091, 1095 (10th Cir. 1993). Petitioner, however, asserts that no court has ever refused a post waiver request to reappoint counsel for trial when, as here, a defendant made the request “well before trial began” a nd counsel did not need a con tinuance to try the case. Petitioner reasons that because th is is the first time a cour t has forced a defendant to represent himself in trial by denying his “pre-trial, continuance-free motion to14 withdraw his invocation of Faretta,” the CCA violated the Sixt h Amendment as an unreasonable application of Gideon v. Wainwright, 372 U. S. 335 (1963). 1 “[T]he lack of a Supreme Court decisi on on nearly identical facts does not by itself mean that there is no cl early established federal law, since ‘a general standard’ from [Supreme Court] cases can supply such law.” Marshall v. Rodgers, 569 U.S. 58, 62 (2013) (citing Yarboro ugh v. Alvarado, 541 U.S. 652, 664 (2004)). But for this particular claim under Section 2254(d )(1), Gideon is not “clearly established federal law.” Clearly establis hed law is not gleaned from “general principles teased from precedent.” House v. Hatch, 527 F.3d 1010, 1016 (10th Ci r. 2008). Rather, it “consists of Supreme Court holdings in cas es where the facts ar e at least closelyrelated or similar to the case sub judice .” Id. In particular, “the Supreme Court must have expressly extended the legal rule to that context.” Id. Petitioner cites no Supreme Court case—i ndeed, he acknowledges no court has addressed the issue before us—holding that a presumption of prejudice applies when a court refuses to allow a defendant to wi thdraw his request fo r self representation and receive substitute counsel before trial and without the n eed for a continuance. In his opening brief, Petitioner acknowledges only the “broad principles” of Gideon and Faretta and asks us to look to opinions fro m the lower courts of appeal “to decide whether the ruling under review hewed to th e Court’s directives and to know what

1 In Gideon, the Supreme Court held that “in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless c ounsel is provided for him.” Gideon, 372 U.S. at 344.15 law is ‘clearly established.’” We declin e to do so. Cole v. Trammell, 755 F.3d 1142, 1152 (10th Cir. 2014). In determining whet her the law is clearly established, we “may not canvass circuit decisions to determin e whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to [the Supreme] Court, be accepted as correct.” Marshall, 56 9 U.S. at 64. Because Gideon enunciates only broad legal prin ciples that do not reach Pe titioner’s question, it is not “clearly established fe deral law” for purpo ses of this case. Moreover, in Marshall, the Supreme C ourt acknowledged that it has never explicitly addressed a criminal defendant’s ability to re-a ssert his right to counsel once he has validly waived it. Id. at 62. Our responsibility in this appeal is not to judge the merits of Colorado’s approach or determine which rule the Sixth Amendment in fact requires for post waiver requests of appointmentof counsel. We exercise only the power allo wed by the statute: to obser ve that, “in light of the tension between the Sixth Amendment’s guara ntee of the right to counsel at all critical stages of the crimin al process and its concurrentpromise of a constitutional right to proceed without counsel when [a criminal defendant] voluntarily and intelligently elects to do so” we cannot say that Colora do’s “approach is contrary to or an unreasonable application of the gene ral standards establ ished by the Court’s assistance-of-counsel cases.” Id. at 63 (internal quotation ma rks and citations omitted) (emphasis and alteration in original). The threshold determination “that there is no clearly establis hed federal law is analytically dispositive in the § 2254(d)(1 ) analysis.” House, 527 F.3d at 1017.16 Thus, “without clearly establis hed federal law, a federal ha beas court need not assess whether a state court’s decision was ‘cont rary to’ or involved an ‘unreasonable application’ of the law. Id.

AFFIRMED.