Clark v. Broomfield

83 F.4th 1141

Douglas Daniel CLARK, Petitioner-Appellant, v. Ronald BROOMFIELD, Acting Warden,California State Prison at San Quentin, Respondent-Appellee.

No. 21-99008

United States Court of Appeals, Ninth Circuit

Argued and Submitted September 19, 2023 San Francisco, California

Filed October 10, 2023

Appeal from the United States District Court for the Central District of California, Stanley Blumenfeld, Jr., District Judge, Presiding, D.C. No. 2:92-cv-06567-SB

Jack G. Cairl (argued), Law Offices of Jack G. Cairl, Los Angeles, California; Michael S. Magnuson (argued), Law Offices of Michael S. Magnuson, Whittier, California; for Petitioner-Appellant.

Nathan Guttman (argued) and Xiomara Costello, Deputy Attorneys General; Dana Muhammad Ali, Supervising Deputy Attorney General; James W. Bilderback II, Senior Assistant Attorney General; Lance E. Winters, Chief Assistant Attorney General; Rob M. Bonta, California Attorney General; California Attorney General's Office, Los Angeles, California, for Respondent-Appellee.

Before: Sidney R. Thomas, Mark J. Bennett, and Lawrence VanDyke, Circuit Judges.

OPINION

S.R. THOMAS, Circuit Judge:

Douglas Clark appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his California conviction and capital sentence for six counts of first-degree murder. On appeal, he contends that his rights under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and his right to substitute counsel under People v. Marsden, 2 Cal.3d 118, 84 Cal.Rptr. 156, 465 P.2d 44 (Cal. 1970), were violated.

The district court had jurisdiction under 28 U.S.C. § 2241. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a). We review a district court's denial of a habeas petition de novo. See Martinez v. Cate, 903 F.3d 982, 991 (9th Cir. 2018). We affirm.

I

Clark was convicted in 1982 of the first-degree murders of Cynthia Chandler, Gina Marano, Karen Jones, Exxie Wilson, Marnette Comer, and Jane Doe 18. He was also convicted of one count of mutilation of human remains and one count of attempted murder and mayhem as to Charlene Andermann. The jury found true a multiple murder special circumstance allegation and sentenced Clark to death. On July 30, 1992, the California Supreme Court reversed Clark's conviction for attempted murder and mayhem and affirmed Clark's murder convictions and death sentence. People v. Clark, 3 Cal.4th 41, 10 Cal. Rptr.2d 554, 833 P.2d 561 (1992).

The facts underlying the six murders, and the investigations of them, are detailed in the California Supreme Court's decision in Clark, 3 Cal.4th 41, 10 Cal.Rptr.2d 554, 833 P.2d at 570-78. Therefore, we shall focus on the legal arguments that Clark presents in his federal habeas appeal.

On direct appeal before the California Supreme Court, Clark claimed that the trial court violated his right of self-representation and right to substitute counsel. The California Supreme Court denied those claims on the merits. Clark subsequently filed numerous habeas petitions in the California Supreme Court. The California Supreme Court denied the claims on procedural grounds and on the merits.

On October 23, 1992, Clark filed a pro se document in federal district court entitled "Writ of Habeas Corpus, from a State Capital Trial and Appellate Process." Clark requested appointment of counsel to investigate potential habeas claims, some of which he listed. At the end of the filing, Clark did not make a request for habeas relief, but only sought appointment of counsel. He signed the 1992 filing, but did not do so under penalty of perjury. The district court docketed the filing as a request for counsel and stay of execution.

The court subsequently appointed two attorneys to represent Clark and ordered nunc pro tunc that their appointment was effective as of September 29, 1993. When counsel filed the habeas petition on April 23, 1997, setting forth twenty-seven claims for relief, they did not purport to amend a prior filing.

The district court then issued an order staying the case to permit Clark to exhaust state remedies. After the California Supreme Court summarily denied Clark's petitions in 2003, Clark's attorneys filed the operative amended federal petition on June 22, 2004, which asserted twenty-three claims for relief.

The district court then ordered the parties to brief the applicability of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") to the habeas petition. Following briefing, the court issued an order determining that AEDPA applied and set a briefing schedule for merits briefing.

After merits review, the district court upheld the California Supreme Court's decision as reasonable within the meaning of 28 U.S.C. § 2254(d). The district court concluded the state-court decision was objectively reasonable in its denial of Clark's claims as to (1) the denial of his pretrial requests for self-representation, (2) the revocation of Faretta status during trial, and (3) the denial of his request for substitute counsel pursuant to Marsden. The district court issued a certificate of appealability as to Clark's claims of Faretta and Marsden errors.

II

A

AEDPA applies to federal habeas petitions that were not pending prior to April 24, 1996. An application for federal habeas relief that was pending before AEDPA's effective date is not subject to AEDPA's limitations. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Jeffries v. Wood, 114 F. 3d 1484, 1499 (9th Cir. 1997) (en banc), partially overruled on other grounds, Gonzalez v. Arizona, 677 F.3d 383, 390 (9th Cir. 2012).

After Lindh, the Supreme Court clarified that filings that are not an "actual application" seeking an "adjudication on the merits of the petitioner's claims" do not constitute a pending habeas petition subject to pre-AEDPA standards. Woodford v. Garceau, 538 U.S. 202, 207-08, 210 n.1, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Garceau held that pre-application filings, such as a request for appointment of counsel or a motion for stay of execution, do not constitute an "actual application" that seeks an "adjudication" of the claims "on the merits" are subject to AEDPA. Id.

To determine what constitutes "an actual application for habeas relief" within the meaning of Garceau, 538 U.S. at 208, 123 S.Ct. 1398, district courts may look to Rule 2 of the Rules Governing Section 2254 Cases, which sets forth criteria that the form of a habeas application must satisfy. Pursuant to Rule 2(c), a § 2254 petition must:

(1) specify all the grounds for relief available to the petitioner;

(2) state the facts supporting each ground;

(3) state the relief requested;

(4) be printed, typewritten, or legibly handwritten; and

(5) be signed under penalty of perjury by the petitioner or by a person authorized to sign it for the petitioner under 28 U.S.C. § 2242.

Rules Governing Section 2254 Cases in the United States District Courts (effective Feb. 1, 1997, as amended to Jan. 5, 2023).

A "failure to [sign and] verify the petition is a defect that . . . the district court may, if it sees fit, disregard," and "[s]ummary dismissal is appropriate only where the allegations in the petition are vague [or] conclusory or palpably incredible, or patently frivolous or false." Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (internal quotation marks and citations omitted).

In addition, "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief." James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994); see Wacht v. Cardwell, 604 F.2d 1245, 1246-47 & n.2 (9th Cir. 1979) (describing the "specificity requirement" and recognizing that "[b]ald assertions and conclusory allegations" are insufficient to state a federal habeas claim).

Pro se habeas petitions are construed more liberally than counseled petitions, see, e.g., Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); Peterson v. Lampert, 319 F.3d 1153, 1159 (9th Cir. 2003) (en banc), but the petition must still allege sufficient facts to state a cognizable claim under 28 U.S.C. § 2254, see Porter v. Ollison, 620 F.3d 952, 958 (9th Cir. 2010) (noting that despite the "liberal construction" afforded pro se pleadings, a pro se petitioner "is not entitled to the benefit of every conceivable doubt").

Here, as we have discussed, Clark's initial filing sought appointment of counsel to investigate potential claims and specifically disclaimed that his listing of potential issues for counsel to investigate was complete, saying it would be "silly" to do so. Clark did not "state the facts supporting each ground." See Rules Governing Section 2254 Cases; see also James, 24 F.3d at 26. Except for requesting appointment of counsel, Clark did not seek further relief. In addition, Clark did not sign the document under penalty of perjury or verify it. The district court docketed the filing as a request for counsel and stay of execution.

Thus, pursuant to Garceau, the October 1992 filing did not constitute an "actual application" that sought "adjudication" of the claims "on the merits." Rather, like Garceau, the relief sought was appointment of counsel and stay of execution.

Appointed counsel subsequently filed a habeas petition on April 23, 1997 setting forth twenty-seven claims for relief. The petition was not styled as an amended complaint or amended habeas petition.

Therefore, the district court correctly concluded that the prior filing by Clark was not an "actual application" that sought "adjudication" on the merits and that AEDPA applied to Clark's operative habeas petition.

B

Under AEDPA, a federal court may grant habeas relief only when the state-court decision was (1) "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or (2) "based on an unreasonable determination of the facts in light of...