                                                                  FILED
                                                      United States Court of Appeals
                       UNITED STATES COURT OF APPEALS         Tenth Circuit

                                     TENTH CIRCUIT                            June 14, 2010

                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
        UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                              No. 09-3206
        v.                                                     (D. Kan.)
                                                  (D.C. No. 2:08-CR-20139-001-KHV)
        SAMUEL L. HENDERSON,

               Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before HENRY, PORFILIO, and BRORBY, Circuit Judges.**


       Samuel L. Henderson was convicted after a jury trial of being a felon in

possession of a firearm. In this appeal, Mr. Henderson argues that the district court

abused its discretion in denying his motion for a continuance. He argues that because the

district court denied his motion for a continuance he could not proceed pro se, which

violated his Sixth Amendment right to self-representation. We are not persuaded by

these arguments and therefore affirm Mr. Henderson’s conviction.

*
  This order and judgment is not binding precedent except under the doctrines of law of
the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
   After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f). The case is therefore submitted without oral
argument.
                                   I.    BACKGROUND

       A federal grand jury charged Mr. Henderson with being a felon in possession of a

firearm in violation of 18 U.S.C. § 922(g)(1). At Mr. Henderson’s initial appearance on

October 16, 2008, the district court appointed Bruce Kips to represent him, and set the

trial date for January 26, 2009.

       Less than two weeks before trial, Mr. Kips filed a motion to withdraw as counsel,

to appoint new counsel, and to continue the trial. At a hearing on the motion, Mr.

Henderson contended that he believed Mr. Kips was not acting in his best interest

because Mr. Kips was unable to negotiate a plea bargain. Noting the untimeliness of the

motion and finding Mr. Henderson’s arguments unpersuasive, the court denied the

motion.

       At a status hearing less than a week before trial, Mr. Kips moved to continue the

trial so his client could consider a plea bargain. Mr. Kips also noted that Mr. Henderson

still desired new counsel. The district court granted a continuance of one week and set

the trial date for February 2, 2009.

       On the day of the trial, Mr. Kips informed the court that there had been a

breakdown in communication and that Mr. Henderson had become unwilling to listen to

his advice. Mr. Henderson indicated that he would like to represent himself. After

noting that “it looks . . . like [Mr. Henderson is] playing games with the Court,” the court

questioned Mr. Henderson on his reasoning and if he was ready for trial. Rec. vol. II, at

12. Mr. Henderson informed the court that he still felt that Mr. Kips did not have his

client’s best interest in mind, but that he was unprepared for trial if proceeding pro se.

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       The district court found Mr. Henderson’s conflict with counsel neither “plausible”

nor “credible,” and after determining that Mr. Henderson had no prior legal education or

experience, the court refused to continue the trial. Id. at 17. Although stating that it

would allow Mr. Henderson to proceed pro se, the district court advised against him

doing so. The district court indicated that Mr. Henderson could represent himself with

Mr. Kips as standby counsel or continue with Mr. Kips as his counsel. Mr. Henderson

chose to proceed to trial with Mr. Kips as counsel.

       At trial the jury found Mr. Henderson guilty of being a felon in possession of a

firearm and the district court sentenced Mr. Henderson to 103 months’ imprisonment.

                                   II.    DISCUSSION

       Mr. Henderson argues that the district court’s denial of his motion for a

continuance, (a) constituted an abuse of discretion, and (b) violated his Sixth Amendment

right to self-representation. We find Mr. Henderson’s arguments unavailing. The district

court considered Mr. Henderson’s motion, made the proper inquiries, acted well within

its discretion, and gave Mr. Henderson the opportunity to exercise his right to self-

representation. Mr. Henderson cannot demonstrate that the district court either abused its

discretion or denied him his constitutional right.

   A. The district court did not abuse its discretion when it denied Mr. Henderson’s

       motion for a continuance.

       Mr. Henderson argues that the district court abused its discretion by refusing to

grant his February 2, 2009, motion for a continuance. We review the district court’s

denial of the motion for a continuance for abuse of discretion. United States v. Pursley,

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577 F.3d 1204, 1227 (10th Cir. 2009), cert. denied, 130 S. Ct. 1098 (2010). Abuse of

discretion occurs only if the district court’s denial was “‘arbitrary or unreasonable and

materially prejudiced the defendant.’” Id. (emphasis in original) (quoting United States

v. Dowlin, 408 F.3d 647, 663 (10th Cir. 2005)). “[T]he district court enjoys broad

discretion on matters of continuances, even when the parties implicate Sixth Amendment

issues.” United States v. Mendoza-Salgado, 964 F.2d 993, 1016 (10th Cir. 1992).

       To determine the reasonableness of the court’s decision we consider four factors:

       [1] the diligence of the party requesting the continuance; [2] the likelihood
       that the continuance, if granted, would accomplish the purpose underlying
       the party's expressed need for the continuance; [3] the inconvenience to the
       opposing party, its witnesses, and the court resulting from the continuance;
       [4] the need asserted for the continuance and the harm that [Mr. Henderson]
       might suffer as a result of the district court’s denial of the continuance.

Pursley, 577 F.3d at 1227-28 (quoting United States v. Rivera, 900 F.2d 1462, 1475 (10th

Cir. 1990) (en banc)). Upon considering these factors, we hold that the district court’s

decision was reasonable under the circumstances and did not prejudice Mr. Henderson.

       First, a petitioner’s diligence may be demonstrated by a timely request and a

logical need for the continuance. See Pursley, 577 F.3d at 1228; see also Rivera, 900

F.2d at 1475. Mr. Henderson argues that he diligently pursued a continuance, seeking it

immediately after demonstrating his desire to proceed pro se, on the day of trial.

However, it is well established that a request for a continuance on the day of trial is not

timely. See Rivera, 900 F.2d at 1475 (holding that defendant’s request for a continuance

was not diligent when made five days before trial after retaining counsel for six weeks).

Furthermore, the record indicates that during the two weeks before trial, Mr. Kips had


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visited his client three times and received no communication from his client. The district

court indicated it believed Mr. Henderson was “playing games” with the court. Rec. vol.

II, at 12. The district court’s conclusions as to diligence were reasonable.

       Second, we consider whether the grant of the requested continuance will

accomplish the party’s purpose. Pursley, 577 F.3d at 1228. Mr. Henderson argues that

the continuance would have provided him with more time so that he could have prepared

represent himself. However, Mr. Henderson has failed to show how the additional time

would have prepared him to represent himself. When asked how he could do a better job

representing himself than his attorney, Mr. Henderson failed to provide any facts that

showed he could do a better job.

       Third, the court was justified in finding that the length of time a continuance

would require would be a great inconvenience on the government, witnesses, and the

court. See id. (holding that a 24-week delay would cause an undue burden on the

opposing parties, witnesses, and the court). The district court stated that a continuance

would be lengthy due to “back-to-back trials for . . . 80 court days.” Rec. supp. vol. I, at

20. Furthermore, the government maintained that this was a “no-brainer” case that

should not take more than two days, and the court had already given the parties an extra

week to prepare. Rec. vol. II, at 11. Based on the length of time of the continuance and

the burden it would place on the opposing party, witnesses, and the court, the district

court’s conclusion was reasonable.

       Fourth, we agree with the district court that Mr. Henderson has failed to show a

need for the continuance and the potential harm he would incur without one. See Rivera,

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900 F.2d at 1476 (holding that because “there was no showing that the failure to grant a

continuance resulted in defendant’s trial counsel being inadequately prepared” the

defendant was not materially prejudiced). Mr. Henderson has not provided this court

with any reason how a continuance would help him defend against the charge or the

elements that the government intends to prove. See Pursley, 577 F.3d at 1229 (finding

that the defendant “[made] no mention of how the lack of time actually inhibited his

defense at trial”). Furthermore, no harm occurred from the district court’s denial of a

continuance because it did not prevent Mr. Henderson from proceeding pro se. The

district court clearly informed Mr. Henderson that he could proceed pro se if he chose to

do so, and would allow Mr. Kips to act as stand-by counsel to assist. Had Mr. Henderson

opted to proceed pro se, the record indicates that the district court would have

acquiesced.

       We conclude that, under Pursley, the district court did not abuse its discretion in

denying the continuance. 577 F.3d at 1227-28.

   B. The district court’s denial of continuance did not deny Mr. Henderson the

       right to self-representation.

       Mr. Henderson also claims that the district court’s denial of his request for a

continuance effectively stripped him of his Sixth Amendment right to represent himself.

We review de novo whether a Sixth Amendment violation has occurred. United States v.

Mackovich, 209 F.3d 1227, 1236 (10th Cir. 2000).

       There are three requirements that a defendant must meet before he has the right to

represent himself. Id. “First, the defendant must ‘clearly and unequivocally’ assert his

                                             6
intention to represent himself.” Id. (citing United States v. Floyd, 81 F.3d 1517, 1527

(10th Cir. 1996)). “Second, the defendant must make this assertion in a timely fashion.”

Id. (citing United States v. McKinley, 58 F.3d 1475, 1480 (10th Cir. 1995)). “Third, the

defendant must ‘knowingly and intelligently’ relinquish the benefits of representation by

counsel.” Id. (citing United States v. Boigegrain, 155 F.3d 1181, 1189 (10th Cir. 1998)).

Mr. Henderson fails to establish either of the first two requirements.

       Mr. Henderson has failed to clearly and unequivocally assert his intention to

represent himself. “This requirement ‘is necessary to protect against an inadvertent

waiver of the right to counsel by a defendant's occasional musings on the benefits of self-

representation.’” Id. (quoting United States v. Frazier-El, 204 F.3d 553, 558 (4th Cir.

2000). Mr. Henderson initially indicated that he would like to represent himself, however

he withdrew that request because he was not prepared for trial that day. As noted, the

district court admonished Mr. Henderson about playing games, and “[w]e have

repeatedly shown concern with the use of the right to waive counsel as a ‘cat and mouse’

game with the courts.” United States v. Reddeck, 22 F.3d 1504, 1510 (10th Cir. 1994).

“Furthermore, a defendant may not manipulate this right in order to delay or disrupt his

trial.” Hamilton v. Groose, 28 F.3d 859, 862 (8th. Cir. 1994). Mr. Henderson retained

Mr. Kips as counsel in October, he appeared in court several times with appointed

counsel, he often refused to communicate with his counsel, and he received a one week

continuance. We agree with the district court that Mr. Henderson’s request for self-

representation on the day of trial was a tactic to delay the court. See Mackovich, 209 F.3d

at 1237 (identifying the grant of three continuances, seven-month representation by court-

                                             7
appointed counsel, untimely requests for self-representation and threats to “stand mute”

as “more than adequate to support the district court’s finding that [defendant’s] requests

for self-representation were merely a tactic for delay.”).

       Finally, Mr. Henderson failed to assert his right in a timely fashion. See United

States v. Smith, 413 F.3d 1253, 1281 (10th Cir. 2005) (holding defendant’s request to

represent himself six days before trial to be untimely). Given Mr. Henderson’s untimely

and less than clear assertion of his right to represent himself, we conclude that the district

court’s denial of a continuance did not violate Mr. Henderson’s Sixth Amendment right

to self-representation.

                                   III.   CONCLUSION

       Accordingly, we AFFIRM Mr. Henderson’s conviction.

                                           Entered for the Court,



                                           Robert Henry
                                           United States Circuit Judge




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