                                                                              FILED
                           NOT FOR PUBLICATION                                DEC 02 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TONY ASBERRY,                                    No. 09-15141

              Petitioner - Appellant,            D.C. No. 1:05-cv-00871-AWI-
                                                 JMD
  v.

A.K. SCRIBNER,                                   MEMORANDUM*

              Respondent - Appellee.


                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                     Argued and Submitted September 1, 2011
                            San Francisco, California

Before: WALLACE, BERZON, and BYBEE, Circuit Judges.

       Petitioner Tony Asberry appeals from the district court’s judgment denying

his habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.

       Asberry claims that Fresno County Jail interfered with his right to counsel

by refusing to provide him medication to treat his psychotic disorder. He argues



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
that the lack of medication in turn rendered his decision to waive his right to

counsel involuntary in violation of the Sixth Amendment. The California Court of

Appeal denied Asberry’s habeas petition for failure to state a prima facie case for

relief. See People v. Duvall, 886 P.2d 1252, 1258 (Cal. 1995) (“If no prima facie

case for relief is stated, the court will summarily deny the petition.”). The question

before us is whether, given the facts alleged by Asberry before the state court, the

court’s summary rejection of his claim was, in light of the entire state court record,

an unreasonable application of federal law. See Cullen v. Pinholster, 131 S. Ct.

1388, 1400 n.12 (2011); 28 U.S.C. § 2254(d).

      Asberry has a constitutional right to waive counsel, but the waiver must be

voluntary. See Faretta v. California, 422 U.S. 806, 835 (1975) (there must be a

knowing and intelligent decision to forgo counsel after the defendant is informed

of “the dangers and disadvantages of self-representation”). He must also be

competent to waive his right to counsel. See Godinez v. Moran, 509 U.S. 389,

400–01 (1993).

      Asberry contends that his decision to proceed without counsel was not a

“voluntary decision” but rather the “product of a delusion emanating from his

untreated psychosis rather than his ‘free will.’” As evidence of that delusion,

Asberry submitted doctors’ reports and records of his medication that show he


                                          2
suffered from a psychotic disorder. Asberry also submitted an Inmate Grievance

Form he filed with prison officials, indicating that Asberry had made numerous

requests to see doctors in the days leading up to his decision to waive counsel.

      To the extent that Asberry contends his mental capacity influenced his

decision to waive counsel, our analysis should focus on Asberry’s competency to

waive counsel, rather than whether he made a knowing and intelligent waiver of

that right. See Godinez, 509 U.S. at 401 n.12 (“The focus of a competency inquiry

is the defendant’s mental capacity; the question is whether he has the ability to

understand the proceedings.”). If construed as such, it is clear that the trial judge

considered Asberry’s competency to proceed without counsel and determined that

Asberry was competent to waive counsel. Because a trial judge “will often prove

best able to make more fine-tuned mental capacity decisions, tailored to the

individualized circumstances of a particular defendant” than will a reviewing court,

a reviewing court should be hesitant to disrupt that finding. Indiana v. Edwards,

554 U.S. 164, 177 (2008). And although the record contains evidence of Asberry’s

symptoms, diagnoses and medications—all of which attest to Asberry’s mental

disorder—the record is devoid of any explanation as to how those factors affected

(or did not affect) Asberry’s ability to evaluate his counsel and make a voluntary

waiver of his right to counsel. Cf. Williams v. Woodford, 384 F.3d 567, 609 (9th


                                           3
Cir. 2004) (“The declarations [of mental-health experts] do not describe how

Williams’s probable mental impairment interfered with his understanding of the

proceedings against him or with his ability to assist counsel in presenting a

defense.”). Consequently, the denial of his petition was not an unreasonable

application of federal law.

      But even if we agree that Asberry’s challenge is to the voluntariness of his

waiver, the result is no different. The purpose of the “‘knowing and voluntary’

inquiry . . . is to determine whether the defendant actually does understand the

significance and consequences of a particular decision and whether the decision is

uncoerced.” Godinez, 509 U.S. at 401 n.12. Here, the trial court engaged Asberry

in a lengthy colloquy regarding the consequences of self-representation, and

Asberry does not challenge the sufficiency of the trial court’s admonishments or its

warnings about the dangers of self-representation—factors that traditionally are

analyzed to determine if a waiver is “knowing and intelligent.” See, e.g., United

States v. Farhad, 190 F.3d 1097, 1100 (9th Cir. 1999) (per curiam) (discussing the

requirement that a waiver be knowing, intelligent, and unequivocal). Moreover,

the record suggests that Asberry’s decision to forgo representation was the result of

a deliberate thought process. Aside from any concerns he had about his counsel,

Asberry decided to proceed pro per to ensure that his trial proceeded on an


                                          4
expedited pace. In fact, the record shows that Asberry was willing to accept new

counsel if his trial schedule would not change. Id. But when the court informed

him that he was unlikely to find qualified counsel on short notice, Asberry again

opted to proceed pro per. Id. The record therefore indicates that Asberry rationally

weighed the benefits of proceeding with counsel on a delayed schedule against the

benefits of a speedy trial and elected the latter. Consequently, the trial court’s

determination that Asberry’s waiver was voluntary has not been “rebutted by clear

and convincing evidence” and was not “based on an unreasonable evidentiary

foundation.” See McCormick v. Adams, 621 F.3d 970, 977 (9th Cir. 2010).

Without any further insight into how Asberry’s psychosis may have affected his

decision-making process, the record supports the conclusion that the denial of

habeas relief was not objectively unreasonable.

      Because the state court’s determination was not “contrary to, or . . . an

unreasonable application of, clearly established Federal law [or] based on an

unreasonable determination of the facts in light of the evidence presented,” 28

U.S.C. § 2254(d), the district court did not err in denying the petition.

      AFFIRMED.




                                           5
                                                                                FILED
Asberry v A. K. Scribner 09-15141                                               DEC 02 2011

                                                                            MOLLY C. DWYER, CLERK
BERZON, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS



      I respectfully dissent.

      The Supreme Court has unequivocally held that “when a defendant seeks to

waive his right to counsel, a determination that he is competent to stand trial is not

enough; the waiver must also be intelligent and voluntary before it can be

accepted.” Godinez v. Moran, 509 U.S. 387, 402 (1993) (emphasis added). Yet,

the majority maintains that Asberry’s mental state is pertinent only to the

competency inquiry. The majority then concludes, as to that inquiry, that the “the

trial judge considered Asberry’s competency to proceed without counsel and

determined that Asberry was competent to waive counsel.” Maj. op. at 3. In so

ruling, the majority collapses Godinez’s holding—that “competen[cy] to stand

trial” and “intelligent and voluntary” waiver are two separate requirements that

must both be met before a defendant can proceed to trial without counsel, 509 U.S.

at 401-02—into a single inquiry where any mental state question is raised. I see no

basis for this merger in Godinez.

      The majority, moreover, glosses over the strength of Asberry’s state court

record. In assessing waiver of counsel, the purpose of the voluntariness inquiry is

to determine “whether the decision is uncoerced. ” Id. at 401 n.12. The state court

post-conviction record corroborates Asberry’s claim that the government
compelled him to waive counsel when it refused to treat his paranoid

schizophrenia, which, in turn, caused Asberry fundamentally to distrust, misjudge,

and ultimately proceed without his defense attorney.

      Asberry submitted three categories of evidence supporting his state habeas

petition. First, Asberry’s medical records from the Fresno County Mental Health

Services, predating his arrest and incarceration, documents a history of paranoid

schizophrenia, auditory hallucinations, and prescription of antipsychotic drugs.

Second, the transcript of the August 16, 1999 hearing in which Asberry waived

counsel reflects his deep yet unfounded distrust of his attorney. Asberry accused

his attorney of secretly sharing witness information with the prosecutor, an

allegation that both defense counsel and the prosecutor adamantly denied, pointing

out that no witness information had yet been exchanged at all. Third, Asberry

submitted with his post-conviction relief application a September 9, 1999 inmate

grievance form. The form complains of prison staff’s refusal to treat him for the

voices he heard in his head, despite his repeated requests for treatment, on

multiple, specified dates both preceding and following his August 16, 1999

hearing. In light of this evidence, and assuming the truth of his allegations, see

People v. Duvall, 9 Cal. 4th 464, 474-75 (1995), Asberry established a sufficient

prima facie case that the refusal to treat his mental illness left him unable to waive

                                           2
counsel voluntarily. The state court determination to the contrary was not a

reasonable application of Godinez and Faretta v. California, 422 U.S. 806 (1975),

which constitute clearly established Supreme Court law.

         The majority’s contrary conclusion rests on three mistakes. First, the

majority misstates the record when it asserts that the trial court evaluated Asberry’s

mental condition in determining his competence to waive counsel or addressed the

voluntariness of his waiver. There is no evidence that the trial court was even

aware of Asberry’s history of mental illness or current efforts to receive mental

health treatment. Cf. United States v. Christensen, 18 F.3d 822, 826 (9th Cir.

1994).

         Second, the majority maintains that Asberry’s decision to forego

representation was the result of a “deliberate thought process,” maj. op. at 4, and so

voluntary. But conscious deliberation is not synonymous with uncoerced decision-

making, and there is clear Supreme Court law that both competency and

voluntariness are necessary. When an individual’s ability to evaluate without

delusions the representation he has been receiving is impaired by his mental

illness, his ensuing “deliberate thought process” concerning whether to proceed

with new counsel on a delayed schedule does not substitute for a non-delusional

evaluation—one unimpaired by psychotic mental processes—of the overall

                                            3
situation.

       Third, the majority maintains that without expert evidence regarding how his

psychosis affected his decision, Asberry could not state a prima facie case that his

waiver of counsel was involuntary. But the pleadings do lay out the connection

between the failure to provide requested mental health treatment and Asberry’s

decision-making process: he reported having paranoid thoughts, and, at the

hearing, premised his distrust of his lawyer, and consequent decision to proceed

pro se, on non-existent events. It does not take an expert to connect those dots for

purposes of determining whether a prima facie case has been established, nor is

there any Supreme Court case law stating special expert evidence requirements for

mental health allegations.

       Because the Supreme Court has clearly held that a defendant’s waiver of

counsel must be voluntary, see Godinez, 509 U.S. at 400-02; Faretta, 422 U.S.

806, and the state appellate court unreasonably applied this precedent in light of the

record before it, we should remand for the district court to decide the merits of the

question whether Asberry in fact did not exercise a voluntary waiver when he

decided to proceed without counsel, after appropriate evidentiary development.

See Panetti v. Quarterman, 551 U.S. 930, 953 (2007); Greenway v. Schriro, 653

F.3d 790, 805-06 (9th Cir. 2011); Frantz v. Hazey, 533 F.3d 724, 733-35, 745 (9th

                                          4
Cir. 2008) (en banc).




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