                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 21 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



CLARENCE WARREN,                                  No. 10-15049

              Petitioner - Appellant,             D.C. No. 1:07-cv-01285-JTM-
                                                  CAB
  v.

DERRAL G. ADAMS,                                  MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                         for the Eastern District of California
                  Jeffrey T. Miller, Senior District Judge, Presiding

                             Submitted June 17, 2011 **
                              San Francisco, California

Before: SCHROEDER, RIPPLE,*** and BEA, Circuit Judges.

       Clarence Warren, a California state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus. Mr. Warren contends that (1) the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the
Seventh Circuit, sitting by designation.
state trial court violated his right to due process when it refused to specify the

length of a continuance it would grant him to prepare for trial in the event that it

later granted his motion for self-representation under Faretta v. California, 422

U.S. 806 (1975); (2) he was denied his right to a fair trial because there was

insufficient evidence to support his conviction; and (3) his trial counsel’s failure to

challenge the pretrial identification procedure constituted ineffective assistance of

counsel. For the reasons that follow, we affirm the judgment of the district court.1

      Mr. Warren filed a petition for a writ of habeas corpus in the United States

District Court for the Eastern District of California. The district court denied

Mr. Warren’s petition, concluding that, with respect to each of his claims, the state

court’s denial of the claim was neither “contrary to,” nor “an unreasonable

application of,” clearly established Supreme Court law. See 28 U.S.C.

§ 2254(d)(1). The district court granted a certificate of appealability on the three

claims he now brings to us.

      We review a district court’s denial of a petition for writ of habeas corpus de

novo. Musladin v. Lamarque, 555 F.3d 830, 835 (9th Cir. 2009).




      1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                           2
      As the district court properly determined, under the Antiterrorism and

Effective Death Penalty Act (“AEDPA”), we may grant habeas relief if the last

state court decision on the petitioner’s claim is “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); see also Ylst v.

Nunnemaker, 501 U.S. 797, 801-06 (1991). We also may grant habeas relief if the

decision is “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)(2); see

Williams v. Taylor, 529 U.S. 362, 404-13 (2000); see also 28 U.S.C. § 2254(e)(1).

      The assertion of a defendant’s right to self-representation under Faretta

“must be knowing and intelligent, timely and not for the purpose of delay, and

unequivocal.” Adams v. Carroll, 875 F.2d 1441, 1442 (9th Cir. 1989) (citations

omitted). In reaching its conclusion that Mr. Warren “failed to articulately and

unmistakably demand to proceed pro se,” the California Court of Appeal

reasonably applied Supreme Court precedent in light of California law. People v.

Warren, No. F043278, 2004 WL 1485005, at *2 (Cal. Ct. App. July 2, 2004)

(unpublished) (citing People v. Valdez, 82 P.3d 296, 317 (Cal. 2004)). The

underlying factual determinations are supported adequately by the record.




                                           3
Mr. Warren therefore has failed to establish that he is entitled to relief under

§ 2254 with respect to his Faretta claim.

      The district court decided Mr. Warren’s insufficiency of the evidence claim

on the merits. We conclude, however, that this claim is procedurally defaulted

because Mr. Warren did not raise it on direct appeal as required by California law.

We are satisfied, moreover, that the state court relied on this adequate and

independent ground. The Supreme Court of the United States has emphasized that

“[a] State’s procedural rules serve vital purposes at trial, on appeal, and on state

collateral attack.” Murray v. Carrier, 477 U.S. 478, 490 (1986) (emphasis added).

The Supreme Court of California cited In re Lindley, 177 P.2d 918 (Cal. 1947) (in

bank), in its denial of Mr. Warren’s petition. We have recognized that a citation to

Lindley, fairly read, stands for the firmly established procedural rule that a claim of

insufficiency of the evidence must be brought on direct appeal--not in habeas

proceedings. See Carter v. Giurbino, 385 F.3d 1194, 1197 (9th Cir. 2004). In

addition, we have held that the Lindley rule constitutes an independent and

adequate state ground to support a judgment. See id. at 1197-98. Therefore,

because Mr. Warren failed to show cause or prejudice for his failure to bring this

claim on direct appeal, we are barred from considering it on federal habeas review.

See Coleman v. Thompson, 501 U.S. 722, 750 (1991).


                                            4
      Finally, we conclude that Mr. Warren’s claim that trial counsel was

ineffective based on the failure to challenge the field show-up is properly raised on

appeal. A claim is fairly presented if the petitioner “present[s] the state courts with

the same claim he urges upon the federal courts.” Picard v. Connor, 404 U.S. 270,

276 (1971). Mr. Warren, proceeding pro se, asserted his ineffective assistance of

counsel claim in his second petition for habeas corpus in the Supreme Court of

California, as well as in the district court, on the basis of trial counsel’s alleged

failure to investigate fully all of the evidence regarding identification. On appeal

to this court, assisted by counsel, Mr. Warren refines his argument, to include a

more specific allegation regarding counsel’s failure to challenge the pretrial

identification procedures.

      In order to prevail on the merits of his ineffective assistance of counsel

claim, Mr. Warren must demonstrate that (1) counsel’s representation fell below an

objective standard of reasonableness as required by the Sixth Amendment, and (2)

counsel’s deficient performance resulted in prejudice to him. See Strickland v.

Washington, 466 U.S. 668, 687-88, 692 (1984). An ineffective assistance of

counsel claim should be denied if the petitioner fails to make a sufficient showing

under either one of the Strickland prongs. See id. at 697.




                                            5
      We need not address Mr. Warren’s contention that trial counsel’s failure to

challenge the field show-up constituted deficient conduct under the first prong of

Strickland because he cannot establish the requisite prejudice. The prejudice prong

requires a showing “that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Id. at 694. At trial, the prosecution presented evidence that a

transmitter tracked Mr. Warren to the field where he attempted to evade police

officers and was caught in close proximity to the money. In addition, the

prosecution provided testimony that, after being brought into custody, Mr. Warren

confessed to having committed the robbery. In light of all of the evidence

presented at trial, Mr. Warren cannot establish that the outcome of the case would

have been different had counsel challenged the pretrial identification procedure.

      We agree with the district court that, with respect to each of these claims, the

state court’s denial of the claim was neither “contrary to,” nor “an unreasonable

application of,” clearly established Supreme Court law. Accordingly, we affirm

the judgment of the district court.

      AFFIRMED.




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