Malone v. Williams

112 F.4th 867

Domonic Ronaldo MALONE, Petitioner-Appellee, v. Brian WILLIAMS, Warden; Attorney General for the State of Nevada, Respondents-Appellants.

No. 22-16671

United States Court of Appeals, Ninth Circuit

Filed August 15, 2024

D.C. No. 2:18-cv-01146-RFB-NJK

Before: Johnnie B. Rawlinson and John B. Owens, Circuit Judges, and Dean D. Pregerson,^* District Judge.

Order;

Statement by Judge Bybee;

Statement by Judge Pregerson.

ORDER

Judge Rawlinson voted to deny, Judge Owens voted to grant, and Judge Pregerson recommended denying, the Petition for Rehearing En Banc. The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Respondents-Appellants Petition for Rehearing En Banc, filed February 21, 2024, is DENIED.

BYBEE, Circuit Judge, with whom GOULD, CALLAHAN, M. SMITH, IKUTA, OWENS, BENNETT, R. NELSON, BADE, COLLINS, BRESS, FORREST, BUMATAY, and VANDYKE, Circuit Judges, join, respecting the denial of rehearing en banc:

I regret the need to issue this statement regarding the denial of rehearing en banc, but this case cries for reversal. I write for two reasons: first, as a suggestion to the U.S. Supreme Court that the case should be summarily reversed; and second, as a warning to lower federal courts and, especially, our colleagues in the state courts not to rely on our deeply flawed memorandum disposition.

Domonic Malone was charged with capital murder and kidnapping in Nevada state court. After the public defender's office was appointed, Malone invoked his Faretta right to self-representation. He equivocated repeatedly thereafter. He accused the trial court of "denying [him] the right to have representation," and he stated in no uncertain terms that he "had asked for ... counsel." These equivocations culminated in a memorandum to the state trial court, in which Malone complained that he had "been forced to represent himself in this case" and that he "ha[d] always been more than willing to accept proper assistance." Malone made clear that he "did not want to represent himself" any longer. (Emphasis added.) The state trial court then held a hearing and asked Malone whether he no longer wanted to represent himself. Malone responded, "Yes. Yes, sir." The trial court re-appointed the public defenders. Malone was convicted; although he was facing the death penalty, he was sentenced to life without parole. Malone then appealed on the grounds that he was denied his Sixth Amendment right to self-representation. Citing Faretta, the Nevada Supreme Court affirmed. Malone sought federal habeas relief, which the district court granted a decade after Malone's conviction.

This should have been an easy case. A defendant has the right to represent himself, but he must invoke that right unequivocally. See Faretta v. California, 422 U.S. 806, 817, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Clearly established federal law requires courts to "indulge in every reasonable presumption against waiver" of the right to counsel. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977). Malone asked for representation—repeatedly— and accused the state court of denying him the right to counsel. The right outcome could not have been more obvious. But our panel did not apply clearly established federal law as determined by the Supreme Court. It ignored the Brewer presumption, cited Faretta once, and then relied almost exclusively on direct-appeal and pre-AEDPA Ninth Circuit cases. The decision violated AEDPA at every turn. It "was not just wrong." Sexton v. Beaudreaux, 585 U.S. 961, 967, 138 S.Ct. 2555, 201 L.Ed.2d 986 (2018) (per curiam). "It also committed fundamental errors that th[e Supreme] Court has repeatedly admonished courts to avoid." Id. Its saving grace is that it is unpublished, but that will not prevent the confusion it has sown from seeping into state courts. Uneducated and indigent defendants will bear the cost of the panel's repudiation of the presumption in favor of appointed representation. The problem will be particularly acute in Nevada, where, because we have granted the writ in a high-profile case, the state courts will have been instructed with all the wrong answers.

Failing to enforce Brewer's presumption gives criminal defendants a unique finality-busting tool that all but guarantees AEDPA arbitrage. Departing from the unequivocal-invocation requirement places "trial courts in a position to be whipsawed by defendants clever enough to record an equivocal request to proceed without counsel in the expectation of a guaranteed error no matter which way the trial court rules." Meeks v. Craven, 482 F.2d 465, 468 (9th Cir. 1973). A defendant will have the federal court end-played either way: "If the court appoints counsel, the defendant could ... rely on his intermittent requests for self-representation in arguing that he had been denied the right to represent himself; if the court permits self-representation, the defendant could claim he had been denied the right to counsel." Adams v. Carroll, 875 F.2d 1441, 1444 (9th Cir. 1989). The panel decision is a get-out-of-jail-free card that flies in the face of AEDPA.

We should have reheard this case en banc.

I

A. Factual Background

The facts are straightforward. In Part I.A.1, I describe Malone's frequent requests for counsel following his invocation of Faretta. In Part I.A.2, I point out Malone's unmistakable pattern of delay and disruption during his year-and-a-half period of self-representation.

1. Malone's equivocal statements

Malone was accused of kidnapping and beating two women to death and leaving their naked bodies in the desert. He was charged with capital murder and kidnapping. Nevada sought the death penalty, and in 2006, the trial court appointed two experienced attorneys from the Nevada Special Public Defenders Office ("the SPDO"). Until his conviction in 2012, Malone repeatedly vacillated on whether he wanted to represent himself. Toward the end of 2009, Malone moved to dismiss his counsel. The court held a Faretta hearing. Malone explained that his attorneys had not acted on certain leads he had suggested pursuing. Malone further explained that he felt as though he had "no choice" but to represent himself, because he "tr[ied] many times to get other attorneys," but he "was unsuccessful." As Malone told it, his "only option" was self-representation. The state trial court found that Malone had knowingly and voluntarily waived his right to counsel, but it appointed the SPDO as standby counsel.

Malone equivocated two months later. He stated, "I did would [sic] like to have my counsel back." The court inquired, "Sir, am I hearing you correct that you do not wish to represent yourself now?" Malone replied, "At this point in time, that's what I was working on, sir." Given the ambiguity in Malone's answer, the court asked whether Malone wished to have the SPDO represent him, and Malone replied, "at this point in time no, sir." The court did not reappoint the SPDO.

Several months later, Malone asked the court to dismiss his standby counsel. The court held a hearing on that motion. At that hearing, Malone expressed his disdain that his standby counsel had failed to file certain motions requested by Malone. The court explained that the SPDO was on standby and that, because Malone had invoked his right to self-representation, he should have filed the motions himself. Malone replied, "during my Faretta hearing[,] I had asked for ... counsel and stuff like that." Malone continued, "you denied me the right to have representation." The court declined to remove the SPDO in standby capacity, but the court also declined to reappoint the SPDO to represent Malone. Malone concluded by asking, "So you're telling me today you're denying me the right to have representation?" The court replied, "Sir, you heard [m]y decision.... I'm denying your motion."

A few months later, the court held a hearing on Malone's motion for a complete rough draft transcript of his co-defendant's trial. The court pointed out that Malone "didn't put any argument in [his] motion," nor did he "serve it on [the] State." The court noted that it was a "[h]uge mistake" for Malone to represent himself. Malone agreed: "I know, sir. I do agree. I do agree, but what I have to do [sic]." The court asked, "You want a lawyer?" Malone replied, "I did. Not the ones I got now." The court did not reappoint the SPDO at this time.

Malone's equivocations did not stop there. Just weeks later, Malone filed a handwritten memorandum with the court. In it, Malone reiterated that he had "been forced to represent himself in this case" and that he "ha[d] always been more than willing to accept proper assistance," but he accused the court of "not allow[ing] him to pursue this goal." The court held a hearing on this issue on July 19, 2011. There, the court said to Malone, "Sir, your pleading[] [is] very clear. The Defendant did not want to represent himself in this matter." Malone replied, "Yes. Yes, sir." The court later gave Malone an opportunity to speak, but Malone did not suggest that he desired to continue representing himself. Malone had represented himself for more than a year and a half. The court re-appointed the SPDO to represent Malone.

Eight days later, on July 27, 2011, the SPDO requested to withdraw as counsel, stating that "Malone has sent a letter alleging there has been a breakdown in the Attorney/Client relationship." The court held a hearing on the matter. Malone claimed that the SPDO was attempting to murder him. The court denied the motion to withdraw as counsel. The judge addressed Malone: "I think you've been playing games because I gave you the Faretta Canvassing." The court described Malone's frequent flip-flop of positions and stated that it would not "play[] games any more [sic...