                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         SEP 5 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DALRAY KWANE ANDREWS,                            No.    16-56630

                Petitioner-Appellant,            D.C. No.
                                                 5:16-cv-00090-RGK-E
 v.

W. L. MONTGOMERY, Acting Warden,                 MEMORANDUM*

                Respondent-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                            Submitted August 29, 2018**
                               Pasadena, California

Before: WARDLAW, BYBEE, and IKUTA, Circuit Judges.

      Dalray Andrews appeals the denial of his 28 U.S.C. § 2254(d) petition for a

writ of habeas corpus. We granted a certificate of appealability on the issue of

whether the state trial court violated his constitutional rights under Faretta v.

California, 422 U.S. 806 (1975), when it denied Andrews’s request for self-


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
representation, made on the eve of trial, along with a request for a two-month

continuance. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      1. In the last reasoned state court opinion, the California Court of Appeal

reasonably concluded that the trial court properly denied Andrews’s Faretta

request because it was made at the last minute, and, given Andrews’s stated belief

that his attorney “was a good lawyer,” the request was made as a delaying tactic.

See Harrington v. Richter, 562 U.S. 86, 100 (2011); 28 U.S.C. § 2254(d)(1). The

state appellate court “correctly identified the relevant Supreme Court authority by

citing Faretta for the existence of a right to self-representation.” Hirschfield v.

Payne, 420 F.3d 922, 926 (9th Cir. 2005). In addition, Andrews made his request

“well inside the ‘weeks before trial’ standard for timeliness established by

Faretta,” Marshall v. Taylor, 395 F.3d 1058, 1061 (9th Cir. 2005), and Andrews’s

case is “not ‘materially indistinguishable’ from Faretta . . . because there was no

suggestion in Faretta that the defendant’s request was made for the purpose of

delaying the trial,” Hirschfield, 420 F.3d at 926 (citing Williams v. Taylor, 529

U.S. 362, 405–07 (2000)).

      We reject Andrews’s argument that the California Court of Appeal added an

extra requirement to the Faretta inquiry as to dissatisfaction with counsel. The

Court of Appeal considered Andrews’s comment about counsel along with other

factors to reasonably conclude that the trial court did not act arbitrarily in



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implicitly finding the request could only have been “designed to create a delay.”

      2. Nor was it an unreasonable determination of facts for the Court of Appeal

to infer from the record evidence that Andrews’s eve-of-trial Faretta motion was

motivated by delay, especially given his statement that he “wasn’t ready for trial”

immediately after making the motion. Because the California Court of Appeal is

“free to affirm the trial court on any basis supported by the record,” Marshall, 395

F.3d at 1061, we must presume the state appellate court’s findings of fact are

correct, Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir. 2003).

      AFFIRMED.




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