Appeal from the United States District Court for the District of Nevada. Lloyd D. George, District Judge, Presiding. DC No. CV-90-00047-LDG
Before: Kilkenny, Sneed, and Ferguson, Circuit Judges.
Appellant Arthur Ray Hambrick, a Nevada state prisoner, appeals pro se the district court's denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. The bulk of appellant's points of error deal with his unsuccessful attempt in his Nevada state trial to have the public defender removed from his case and a substitute counsel appointed at the state's expense. We affirm.
FACTS AND PROCEEDINGS BELOW
Appellant was charged and arraigned for the April 29, 1987 burglary and robbery of a 7-11 store in Las Vegas. He was appointed a public defender, Thomas W. Rigsby. On July 15, 1987, Mr. Rigsby notified the state trial court that one day earlier he had been served notice of a 42 U.S.C. § 1983 civil rights action filed against him in federal court by appellant. In general terms, the § 1983 complaint asserted that Mr. Rigsby was depriving appellant his constitutional rights by not paying adequate attention to the case. The complaint requested, as a form of relief, that the United States District Court cause "another lawyer other than a public defender lawyer like Thomas W. Rigsby to be appointed to represent him in his state criminal trial.
On July 20, the state trial court examined the contents of the civil rights complaint and entertained appellant's request for substitute counsel. Appellant stated that he did not "have an understanding" or "get along" with Mr. Rigsby, and that it was his feeling Mr. Rigsby was not representing appellant to the "best of his ability." The district attorney argued that appellant filed the § 1983 complaint for the sole purpose of creating a conflict that had no basis in fact, and that such a tactic should not be allowed. The court denied the request and ordered Mr. Rigsby to continue representing appellant.
Dissatisfied with the court's ruling, appellant renewed his motion for substitute counsel orally on July 27. On July 29, the court again denied appellant's motion. At that time, appellant stated: "I do not want [the public defender's office] to represent me." The court reiterated to appellant that they were representing him, and set trial for August 3.
On the day trial was to begin, Mr. Rigsby, the public defender, informed the court that his repeated efforts to prepare for trial with appellant had been "rebuffed," and that appellant now wished to represent himself. Appellant saw the matter somewhat differently. To his thinking, he simply had no choice but to represent himself. Appellant stated:
My desire was . . . to have Mr. Rigsby dismissed from my case and have a court appointed attorney, but since I have been denied this right . . . I have no other alternative but to try and defend my own rights and represent myself.
I . . . strongly feel that the public defender, Thomas W. Rigsby, is working with the DA against me in my pending case and on the grounds of this, I feel this should give me enough relief. . . . Me and him have a conflict of interest. I don't have anything against him personally, but I just know in my heart I don't feel right . . . going in court with him.
The court informed appellant that he had the choice of either accepting Mr. Rigsby's representation or continuing on his own. Appellant chose the latter. The court then thoroughly canvassed appellant pursuant to Faretta v. California, 422 U.S. 806 (1975), covering his age, his experience in court, his understanding of the charge, the potential punishment, as well as his rights generally. The court determined that appellant was able to represent himself and so ruled. Appellant was given access to an investigator at the state's expense and was granted a continuance in order to prepare his defense.
Twice more appellant renewed his request for appointment of counsel and relayed to the court his general dissatisfaction with the way things were proceeding. Twice more, August 19 and September 9, 1987, the court denied appellant's request. At the latter date, the time of the final calendar call before trial, the court ordered Mr. Rigsby to serve as standby counsel for appellant, and informed appellant that Mr. Rigsby's services were available.
Finally, on September 14, the first day of trial, appellant's displeasure with the proceedings and his predicament grew more intense. He demanded that Mr. Rigsby be removed from the courtroom, and when the court refused, he threatened to disrupt the proceedings. The court warned him that he would be bound and gagged if he disrupted the proceedings, and, if necessary, removed from the courtroom. Appellant continued to threaten disruption, stating that he was not going to participate in the proceedings and that the court might as well remove him at once. As the court began speaking to the prospective jurors, appellant interrupted the court several times. Again, the court warned appellant that it could not tolerate disruptions, and again appellant responded that he would do whatever was necessary to get himself removed from the room. Appellant did just that.
First, the court had appellant gagged. Appellant then began tapping counsel table. The court handcuffed him to the chair. Appellant then began kicking counsel table. The court bound his legs to his chair. Appellant then uttered unintelligible noises through the gag and started throwing himself about. At this juncture, the court ordered appellant ungagged, and warned him one final time that he would be removed unless he ceased misbehaving. Appellant stated that he would not, and the court then removed him from the courtroom.
Jury selection continued with Mr. Rigsby acting as an amicus on appellant's behalf. Later, appellant agreed not to disrupt the proceedings further, and he was returned to the courtroom for the completion of the jury selection. The jury was examined over their ability to disregard appellant's outbursts and disruptive behavior. Both the state and appellant passed the jury panel for cause, and trial proceeded.
The record reflects repeated instances where appellant sought advice from Mr. Rigsby, who continued to act as standby counsel. Appellant was found guilty of burglary and robbery with the use of a deadly weapon.
We review de novo the district court's denial of a habeas petition and accept its findings of fact unless they are clearly erroneous. See Jones v. Meyer, 899 F.2d 883, 884 (9th Cir.), cert. denied, 111 S. Ct. 95 (1990). In turn, the Nevada state court's findings of fact are entitled to a presumption of correctness. See Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir. 1989). We review de novo whether a trial court's decision to bind and gag a defendant is an abuse of discretion. See Jones, 899 F.2d at 884.
A. Ineffective Assistance of Counsel
Appellant first argues that the Nevada trial court denied him his sixth amendment right to effective assistance of counsel by repeatedly denying his motions for appointment of substitute counsel, and then by finding that he knowingly and intelligently waived his right to counsel. Neither point is persuasive.
Appellant recognizes, as he must, that he had no constitutional right to counsel of his choosing at the state of Nevada's expense. He nonetheless contends that an irreconcilable conflict arose between him and Mr. Rigsby, and as a result, Mr. Rigsby's effective assistance was impossible. We analyze a motion for substitute counsel in light of three things: (1) whether the motion was timely; (2) whether the trial court's inquiry into the defendant's complaint was adequate; and (3) whether the asserted conflict created a total lack of communication such that the defendant was unable to present an adequate defense. See United States v. Garcia, 924 F.2d 925, 926 (9th Cir.), cert. denied, 111 S. Ct. 2809 (1991).
Appellant's motion was timely. He moved for substitute counsel a full two weeks before the initial August 3 trial. However, a timely motion alone is not sufficient reason to justify substitute counsel on ...