Tooby's California Post-Conviction Relief for Immigrants

 

If a court denies a defendant’s request for counsel, in almost all cases the result will be an order vacating the conviction.[3]  The defendant is also denied the right to counsel where an invalid waiver of the right to counsel is taken, where the court erroneously denies the defendant the right of self-representation, or where a person who is not an attorney represents the defendant in court.

 

            This ground is particularly fundamental, so as to allow a defendant to challenge the validity of the conviction during federal sentencing proceedings where it is alleged as a prior conviction to enhance the federal sentence, and by means of collateral attack under other circumstances in which attack on other less fundamental grounds would be barred.[4]

 

            The conviction will also be reopened when the trial court violated the defendant’s right to counsel by summarily rejecting his request for new counsel without inquiring into the basis of the request.[5]  A motion for new counsel presented on the eve of trial should not be denied solely because it is late, so long as it will not inconvenience the court or opposing party.[6]  Similarly, the defendant has the right to discharge retained counsel without a showing of incompetency, conflict or other cause and has the right then to be represented by court appointed counsel if the defendant is indigent.[7]

 

A denial of the right to counsel of choice also results in an invalid conviction, for example, when a defendant was forced to trial without his retained attorney, who had been injured the day before trial.[8]  However, a court may refuse to allow an attorney to represent a defendant pro hac vice without violating the defendant’s constitutional right to counsel of choice.[9]  A court may not remove appointed counsel where the office previously represented a prosecution witness when the individual attorney assigned to represent the current defendant did not “have a ‘direct and personal’ relationship with the witness . . . .”[10] 

 

A conviction will be reversed for denial of counsel if counsel is not present at a critical state of the proceedings.  The right to counsel includes the right for counsel to be present at a readback of testimony, and where the defendant is not afforded that right, a writ of habeas corpus is appropriate.[11]

 

Appellants have no Sixth Amendment right to self-representation on direct appeal.[12]  Therefore, the Court of Appeals did not unreasonably apply federal law in substituting appellate counsel over appellant’s objection.  Note that the right to appellate counsel exists under the due process and equal protection clauses of the Fourteenth Amendment,[13] but the court did not reach the issue because appellant relied exclusively on the Sixth Amendment right, and did not raise the Fourteenth Amendment.[14]

 

When a defendant is denied effective assistance of counsel, the proper remedy is to return to the pre-error stage of the criminal proceedings.  See § 10.40, infra.[15]

[3] Gideon v. Wainwright, 372 U.S. 335 (1963) (defendant forced to trial without counsel).

[4] Custis v. United States, 511 U.S. 485 (1994); Daniels v. United States, 532 U.S. 374 (2001); Lackawanna County District Attorney v. Coss, 531 U.S. 923 (2001).

[5] Crandell v. Bunnell, 144 F.3d 1213, 1216 (9th Cir. 1998); Bland v. Cal. Dept. of Corrections, 20 F.3d 1469 (9th Cir. 1994), cert. denied, 513 U.S. 947 (1994).

[6] See United States v. Lillie, 989 F.2d 1054, 1056 (9th Cir. 1993), overruled on other grounds by United States v. Garrett, 179 F.3d 1143 (9th Cir. 1999) (en banc).

[7] People v. Ortiz (1990), 51 Cal.3d 975.

[8] Bowen v. Maynard, 799 F.2d 593 (10th Cir.), cert. denied, 479 U.S. 962 (1986).

[9] United States v. Ensign, 491 F.3d 1109 (9th Cir. 2007).

[10] Rhaburn v. Superior Court (2006) 140 Cal.App.4th 1566

[11] Fisher v. Roe, 263 F.3d 906 (9th Cir. 2001).

[12] See Martinez v. Court of Appeal of California, 528 U.S. 152 (2000)(no right to self-representation because Faretta applies only to trials).

[13] See Douglas v. California, 372 U.S. 353  (1963); Evitts v. Lucey, 469 U.S. 387 (1985).

[14] Tamalini v. Stewart, 249 F.3d 895 (9th Cir. 2001).

[15]  Riggs v. Fairman, 399 F.3d 1179 (9th Cir. 2005).