                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

TIMOTHY EUGENE ESTEP,                           No.    18-35196

                Petitioner-Appellant,           D.C. No. 1:15-cv-00530-CWD

 v.
                                                MEMORANDUM*
KEITH YORDY, Warden,

                Respondent-Appellee.

                   Appeal from the United States District Court
                             for the District of Idaho
                   Candy W. Dale, Magistrate Judge, Presiding

                     Argued and Submitted November 8, 2019
                              Seattle, Washington

Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District
Judge.

      Timothy Estep (“Estep”) appeals the district court’s denial of his petition for

writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

      We granted a certificate of appealability as to whether the state trial court



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
violated Appellant’s constitutional rights when it denied his request for

self-representation under Faretta v. California, 422 U.S. 806 (1975). Under the

Antiterrorism and Effective Death Penalty Act, “‘relief may be granted only if the

state court 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 if the state court decision rests on ‘an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.’” Tamplin v.

Muniz, 894 F.3d 1076, 1082 (9th Cir. 2018) (quoting 28 U.S.C. § 2254(d)(1), (2)).

We review the “last reasoned state court opinion,” here, the decision of the Idaho

Court of Appeals. Id.

      At a hearing in state court on June 9, 2011, Appellant made what appeared to

be a request for self-representation. Rather than proceed with a Faretta colloquy, the

Court was concerned about Appellant’s ability to represent himself and ordered a

competency evaluation.

      The Court’s concern with Appellant’s competence to represent himself

continued until a hearing on November 26, 2012, when Appellant’s counsel

informed the Court, in Appellant’s presence, that Appellant did not want to proceed

pro se. On the morning of trial two weeks later, Appellant requested that he be tried

in absentia, stating “I’ll trust [counsel’s] abilities to defend me.”

      Appellant appealed his conviction to the Idaho Court of Appeals, arguing that


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the trial court denied him his constitutional right to self-representation. In denying

his appeal, the appellate court found that Appellant’s initial request to proceed pro

se was equivocal, and alternatively that prior to trial he waived and abandoned his

request to proceed pro se. Appellant then appealed to the Idaho Supreme Court,

which denied his petition for review in a summary order. On habeas review in federal

court, the district court held that the Idaho Court of Appeals reached an objectively

reasonable decision on the self-representation issue.

      Appellant challenges the state court’s finding that the June 9, 2011

self-representation request was equivocal. Appellant also contests the state court’s

determination that he subsequently waived or abandoned his Faretta right and the

finding that he was not competent to represent himself. Regardless of whether the

June 9, 2011 request was equivocal, Appellant waived that request during the

November 26, 2012 hearing. At that hearing, Appellant’s attorney informed the trial

court that Appellant did not want to proceed pro se, but instead wanted another

attorney. The appellate court determined that Appellant’s failure to refute the

statement withdrew his pending request to proceed pro se and waived any previous

requests made up to that point.1



1
 The court further held that Appellant abandoned his subsequent request to
proceed pro se by failing to pursue it when the trial court addressed pretrial matters
and instead endorsed his attorney’s ability to adequately represent him in his
absence.

                                          3                                    18-35196
      The Idaho court did not make an unreasonable determination of the facts

regarding Appellant’s waiver of his Faretta request. “[O]nce a defendant has stated

his request clearly and unequivocally and the judge has denied it in a[n] equally clear

and unequivocal fashion, the defendant is under no obligation to renew the motion.”

United States v. Arlt, 41 F.3d 516, 523 (9th Cir. 1994) (citing Brown v. Wainwright,

665 F.2d 607, 612 (5th Cir. 1982)). However, when a request to proceed pro se has

not been clearly and conclusively denied and the question of self-representation is

left open for possible further consideration, the right may be waived through

subsequent conduct. Brown, 665 F.2d at 611. Accordingly, since a Faretta request

can be subsequently waived, and since Appellant’s conduct indicated he had

abandoned his request to proceed pro se, the Idaho court did not violate clearly

established federal law.

      AFFIRMED.




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