                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        March 18, 2020

                                                                         Christopher M. Wolpert
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 JIMMIE WELLMON,

       Petitioner - Appellant,

 v.                                                          No. 19-1002

 COLORADO DEPARTMENT OF
 CORRECTIONS; THE ATTORNEY
 GENERAL OF THE STATE OF
 COLORADO,

       Respondents - Appellees.
                      _________________________________

                     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 & Winocur, P.C., Denver, Colorado, for Petitioner-
Appellant.

Christine Brady, Senior Assistant Attorney General (Philip J. Weiser, Attorney General,
with her on the brief), Denver, Colorado, for Respondents-Appellees.
                         _________________________________

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

CARSON, Circuit Judge.
                    _________________________________

      Although Congress has given us the ability to review state criminal

convictions, our power to grant a petitioner relief is limited to correcting extreme
malfunctions in the state criminal justice systems. In so doing, we review a state

court’s decision for reasonableness and focus on what the state court knew and did

when it made its decision. And under 28 U.S.C. § 2254(d), we make our

reasonableness determination considering 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 murder, assault, menacing, and witness

tampering. We granted a certificate of appealability so Petitioner could appeal

whether he validly waived his right to counsel and, if so, whether the state trial judge

reasonably rejected his pretrial motion to retract his waiver. The federal district court

rejected Petitioner’s claims and dismissed his petition. Exercising jurisdiction under

28 U.S.C. §§ 1291 and 2253, we affirm.

                                             I.

         Petitioner brutally assaulted a female victim in a Denver hotel room. After a

trial in which he represented himself, a Colorado jury convicted Petitioner of

attempted first-degree murder, assault, menacing, and witness tampering. The state

trial court sentenced Petitioner to seventy years’ incarceration. The Colorado Court

of Appeals (“CCA”) affirmed Petitioner’s convictions on direct appeal. Both the

Colorado Supreme Court and the United States Supreme Court denied certiorari.

Petitioner then filed this civil action in the District of Colorado, collaterally attacking

his state court conviction.



                                             2
                                            II.

       The standards set forth in the Antiterrorism and Effective 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, clearly established Federal law, as determined by the

Supreme Court of the United States” or “was based on an unreasonable determination

of the facts in light of the evidence presented in the State Court proceeding.” 28

U.S.C. § 2254(d). “Clearly established law is determined 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 state-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 Court has . . . on materially indistinguishable facts,” such a

decision is “contrary to” clearly established law. Id. And if “the state court

identifies the correct governing legal principle . . . but unreasonably applies that

principle to the facts of the prisoner’s case,” the state court’s decision is an

“unreasonable application” of Supreme Court law. Id. (alteration in original).

                                            III.

       Our resolution of Section 2254 claims “is highly dependent on the standard of

review required by AEDPA”—which limits our role in reviewing state court

judgments. Washington, 846 F.3d at 1287. To determine whether Petitioner is

                                             3
entitled to relief, we must analyze what occurred at trial and on appeal, determine

what standard the CCA applied, analyze whether that standard conflicted with clearly

established United States Supreme Court precedent, and finally decide whether the

court unreasonably applied that standard.

                                            A.

      The state trial court appointed the Office of the Colorado State Public

Defender to represent Petitioner. Petitioner 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 ability to be objective about potentially

exculpatory evidence. Petitioner also challenged his 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 his public defender and that the public

defender did not represent him vigorously or with zeal. Petitioner submitted a list of

grievances with his motion, including complaints that the public defender ignored

calls from Petitioner and his friends and family. The trial court held a hearing on the

issue and carefully advised Petitioner of his right to counsel. On the record during

that hearing, Petitioner unequivocally waived his right. Petitioner then asked the trial

court to appoint advisory counsel and 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 that

                                            4
Petitioner assaulted her in a manner similar to the attack at issue. The court revoked

Petitioner’s phone privileges. Petitioner also recruited Danny Padilla—the resident of

an adjoining jail cell—to call Allen. Prosecutors alleged that Padilla sought to

influence Allen’s testimony at Petitioner’s direction. Padilla thus became a witness

to the witness tampering charge. By trial, Petitioner married Allen.

      Petitioner’s relationship with advisory counsel quickly soured. Advisory

counsel moved to withdraw. Advisory counsel 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 counsel told the court that

her last two court appearances 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 clever ways for months. The prosecution asked the court to

reconsider its ruling, opining 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 Colorado State Public Defender. A new deputy

public defender entered his appearance.

      Seven weeks before the trial date, the public defender told the trial court of a

conflict of interest and asked to withdraw. The problem—unnoticed at the time of

his appointment—was that the public defender’s office also represented Padilla. The

public defender explained that he could not interview Padilla, a crucial witness in the

                                            5
case who potentially had exculpatory information, because of the conflict.       The

public defender also admitted that he and Padilla’s deputy 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 materially limited his ability to represent Petitioner.

       In response to the conflict, the prosecution agreed not to call Padilla as a

witness and to grant immunity to him if Petitioner called him at trial. The trial court

determined that the potential conflict of interest was speculative and ameliorated by

the prosecution’s agreements, as well as the court’s ability to sever the witness

tampering counts and try them with different counsel, if necessary.

       Petitioner subsequently sought to dismiss his new public defender and appoint

alternative defense counsel, while the new public defender moved to withdraw based

on irreconcilable differences with Petitioner. When the court asked the public

defender why he sought to withdraw, the public defender responded that “there just

seems to be a concerted effort to abuse counsel.” Specifically, Petitioner made

threats against the public defender and an intern in the office. The public defender

told the court that “consistently the message from Mr. Wellmon is that he needs to be

in control of everything and cannot tolerate counsel making decisions.” Petitioner

made clear that he did not want to proceed to trial pro se, but he also made clear that

he wanted new counsel. The public defender told the court that he could be ready for

trial but that his cross-examination of Allen would be restricted because of the

conversations between Allen and Padilla. Specifically, the public defender stated, “I

                                             6
don’t think it would be appropriate for me to bring up anything related to Danny

Padilla and Danny Padilla is on tapes talking to her.” He also stated that Padilla was

the only impeachment witness if Allen were to deny any conversations between the

two occurred. Put simply, the new public defender had confidential information

about Padilla he could not share with Petitioner and confidential 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 Petitioner 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 and 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 knowingly and willingly on repeated occasions waived your right to
      counsel expressly but that by your overall action in this case you have in my
      view, clearly and unequivocally waived your right to counsel. If your
      conduct in this case is permitted to entitle you to, at this point, alternative
      defense counsel, it is my view that any 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 system and, indeed, taken control of the
      system, thereby forcing the Court to create—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 that is to find that you have, by your
      conduct and the totality of the circumstances, impliedly waived your right to


                                             7
       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 between 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, Petitioner stated he would rather represent

himself than have the public defender represent him. The court then found Petitioner

knowingly, intelligently and voluntarily waived his right to counsel.

       The court held another hearing one week before trial and told Petitioner that

his failure to participate at trial would not be grounds for a mistrial. Petitioner did not

engage with the court at that hearing. He did, however, seek the public defender’s

reappointment. In support, he said he could not prepare for trial or defend himself

adequately. The public defender said he could 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 strategic, tactical, knowing, and

intelligent decision to waive counsel and proceed pro se. The court determined that

“any problems he faces regarding the upcoming trial are self-inflicted, 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 should “just make the best of it.” The Court

reiterated that Petitioner would not allow anyone to represent him nor did he allow an

advisory counsel to assist him. After reviewing all of the motions and transcripts, the

                                            8
court told Petitioner that he had made it impossible for anyone to represent him.

Petitioner did not make an opening statement, cross-examine any witnesses, or put on

a defense.

      After his conviction, the trial court again appointed the same public defender

to represent Petitioner at sentencing. The public defender told the court that he

should have been appointed before trial. The court disagreed.

                                           B.

      On appeal to the CCA, Petitioner challenged the validity of his waiver of the

right to counsel. See Faretta v. California, 422 U.S. 806, 836 (1975) (providing that

before a defendant may act pro se, he must first affect a valid waiver of the right to

counsel). Petitioner argued that he had the right to conflict-free counsel. He

contended that even if the prosecution did not call Padilla, his defense required

impeaching Padilla through Allen and that the public defender’s possession of

confidential information about both Petitioner and Padilla warranted the public

defender’s removal. Thus, Petitioner asserted his waiver could not be valid if his

only options were to represent himself or proceed with conflicted counsel.

      The CCA affirmed. It held the trial court properly concluded the asserted

conflict of interest did not require the public defender’s withdrawal. It based its

holding on two facts in the record. First, neither party intended to call Padilla as a

witness at trial. And second, the trial court properly concluded that it could sever the

witness tampering counts. Thus, because his public defender faced no conflict after



                                            9
the trial court severed the tampering charge, the CCA held Petitioner validly waived

counsel.

       After the Colorado Supreme Court and the United States Supreme Court

denied certiorari, and after the state courts denied postconviction relief, Petitioner

filed this habeas action in the federal district court. The district court agreed with the

CCA’s analysis. The district court found the state court reasonably rejected the

conflict claim because the parties 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 right 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, 490 (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 conclude that the public defender’s eventual repudiation of

Padilla as a defense witness or the possible severance of the witness-tampering

counts could extinguish the conflict. Petitioner asserts the CCA neglected to address

                                           10
two items: the public defender’s self-described constraints on cross-examining Allen

and the public defender’s stated inability to investigate Padilla. In sum, Petitioner

tells us that the public defender was torn between two clients.

      But we must assess the reasonableness of the state court’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 malfunctions in the state criminal justice

systems, and not as a means of error correction.” Greene v. Fisher, 565 U.S. 34, 43

(2011) (internal quotation marks omitted). Given that objective, we limit our review

to the record before the state court. Id. at 44. After all, Section 2254 is a “backward-

looking” statute that requires an examination of the state court 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 parties do not raise. Thus, under Section

2254(d), we review the reasonableness of a state court’s decision in light of the

arguments the petitioner raised in the state court. See 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 procedurally defaulted”).

      Petitioner argued to the CCA that the remedy of neither side calling Padilla as

a witness against Petitioner did not dissipate the conflict because “the public

defender would be limited in impeaching Allen in regard to any contacts she had with

Padilla.” Given the trial court’s offer to sever the witness tampering charges, any

such testimony would be irrelevant because the public defender would no longer be

                                           11
torn between two clients. For this reason, we conclude that the CCA reached a

reasonable conclusion.

      Petitioner now argues that the public defender’s conflict never dissipated.

Even without Padilla testifying, Petitioner claims the public defender suffered from

dual loyalties. Petitioner asserts that the ethics rules precluded the public defender

from spilling the substance of the confidential information he had obtained into the

record. But in state court Petitioner never 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 Padilla, “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 had made that argument to the CCA and that

court had rejected it, maybe our result today would be different. Indeed, his

arguments on appeal certainly have force. But we are not considering this matter on

direct appeal from a federal conviction. Petitioner’s failure to make those arguments

to the CCA sounds the death 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 counsel. Although we agree

with counsel in in a broad sense, the context of this case demands that we limit our

review to the arguments Petitioner presented 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 first present that issue or

                                           12
argument to the CCA. As a result, the CCA’s determination that Petitioner validly

waived the conflict (and that the conflict was, in fact, extinguished) was not contrary

to clearly established United 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 that any such testimony would be irrelevant if neither side

called Padilla and the court severed the witness tampering charges.

                                           D.

      Having concluded that Petitioner 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 precedents holding that once a defendant

exercises his right to defend himself and proceed pro se, “he does not have the

absolute right to thereafter withdraw his request for self representation and receive

substitute counsel.” United 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” and counsel did not need a continuance to try the case.

Petitioner reasons that because this is the first time a court has forced a defendant to

represent himself in trial by denying his “pre-trial, continuance-free motion to




                                           13
withdraw his invocation of Faretta,” the CCA violated the Sixth Amendment as an

unreasonable application of Gideon v. Wainwright, 372 U.S. 335 (1963).1

      “[T]he lack of a Supreme Court decision on nearly identical facts does not by

itself mean that there is no clearly 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 Yarborough 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 established law is not gleaned from “general principles teased

from precedent.” House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008). Rather, it

“consists of Supreme Court holdings in cases where the facts are at least closely-

related 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—indeed, 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 withdraw his request for self representation

and receive substitute counsel before trial and without the need for a continuance. In

his opening brief, Petitioner acknowledges only the “broad principles” of Gideon and

Faretta and asks us to look to opinions from the lower courts of appeal “to decide

whether the ruling under review hewed to the 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 counsel is provided for him.” Gideon, 372 U.S. at 344.
                                           14
law is ‘clearly established.’” We decline to do so. Cole v. Trammell, 755 F.3d 1142,

1152 (10th Cir. 2014). In determining whether the law is clearly established, we

“may not canvass circuit decisions to determine 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, 569 U.S. at 64. Because Gideon

enunciates only broad legal principles that do not reach Petitioner’s question, it is not

“clearly established federal law” for purposes of this case.

      Moreover, in Marshall, the Supreme Court acknowledged that it has never

explicitly addressed a criminal defendant’s ability to re-assert 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 appointment of counsel. We

exercise only the power allowed by the statute: to observe that, “in light of the

tension between the Sixth Amendment’s guarantee of the right to counsel at all

critical stages of the criminal process and its concurrent promise of a constitutional

right to proceed without counsel when [a criminal defendant] voluntarily and

intelligently elects to do so” we cannot say that Colorado’s “approach is contrary to

or an unreasonable application of the general standards established by the Court’s

assistance-of-counsel cases.” Id. at 63 (internal quotation marks and citations

omitted) (emphasis and alteration in original).

      The threshold determination “that there is no clearly established federal law is

analytically dispositive in the § 2254(d)(1) analysis.” House, 527 F.3d at 1017.

                                           15
Thus, “without clearly established federal law, a federal habeas court need not assess

whether a state court’s decision was ‘contrary to’ or involved an ‘unreasonable

application’ of the law. Id.


AFFIRMED.




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