                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 21 2011

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



                           FOR THE NINTH CIRCUIT


DERON KINCAID,                                   No. 09-16738

              Petitioner - Appellant,            D.C. No. 4:07-cv-00608-SBA

  v.
                                                 MEMORANDUM*
DAVID RUNNELS, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
               Saundra Brown Armstrong, District Judge, Presiding


                      Argued and Submitted August 29, 2011
                            San Francisco, California


Before: BERZON and BYBEE, Circuit Judges, and GRAHAM, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable James L. Graham, Senior U.S. District Judge for the
Southern District of Ohio, sitting by designation.
      Deron Kincaid appeals the district court’s denial of his 28 U.S.C. § 2254

petition for writ of habeas corpus. We have jurisdiction over this appeal under 28

U.S.C. § 2253(a) and affirm.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a writ

of habeas corpus may be granted only if the “last reasoned decision” by a state

court “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).

      Kincaid made a request to represent himself six days before jury selection

began in his state court murder trial. The court granted Kincaid’s request but

denied his further request for a continuance of the trial. The issue in this case is

whether the state trial court violated Kincaid’s Sixth Amendment right to self-

representation. See Faretta v. California, 422 U.S. 806 (1975); see also Armant v.

Marquez, 772 F.2d 552, 557-58 (9th Cir. 1985) (holding that in certain

circumstances the denial of a continuance can render the right to self-

representation meaningless).

      The California Court of Appeal did not unreasonably determine that the trial

court could grant Kincaid’s request to represent himself, but deny him a


                                           2
continuance, when the request was made six days before jury selection. The only

clearly established Supreme Court standard on the timing issue is that the request

must be granted if made “weeks before trial.” Faretta, 422 U.S. at 835; see also

Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005) (finding no Sixth

Amendment violation where Faretta request “fell well inside the ‘weeks before

trial’ standard”). The United States Supreme Court recently emphasized that state

courts must be granted “deference” and “latitude” in matters where Supreme Court

precedent establishes only a general standard, as opposed to a specific legal rule.

Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 785-86 (2011). The “weeks

before trial” standard of Faretta is a general one, and the record amply supports the

determination that Kincaid unreasonably delayed in requesting to represent

himself. At the time he made his request, Kincaid had been in custody on murder

charges for 782 days, a year had passed since the original trial date, motions in

limine had been ruled on, and the jury pool had been called.

      Moreover, the state court did not make an unreasonable determination of the

facts. Kincaid portrays his request as stemming from his counsel’s failure to

communicate, but the record of the colloquy between the trial court and Kincaid

supports the state court’s determination that Kincaid’s Faretta request was based

on his belief that counsel had not pursued certain investigatory leads. The state


                                          3
court was within its discretion in determining that the defense was ready for trial

and that a continuance was not warranted. Of the items that Kincaid raised with

the trial court as needing investigation, all but a bus schedule had been taken care

of by counsel and the investigator, and counsel represented to the court that the

investigator was in the process of “checking it out.” With the defense case

prepared for trial, the trial court reasonably found that a continuance was

unnecessary if Kincaid elected to exercise his Faretta right and represent himself at

trial six days later.

       AFFIRMED.




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