                                                                            FILED
                             NOT FOR PUBLICATION
                                                                            OCT 01 2015
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ANTHONY DARNELL WAFER,                           No. 13-56933

              Petitioner - Appellant,            D.C. No. 2:04-cv-05694-AHS-
                                                 AJW
       v.

ANTHONY HEDGPETH, Warden,                        MEMORANDUM*

              Respondent - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
               Alicemarie H. Stotler, Senior District Judge, Presiding

                     Argued and Submitted September 3, 2015
                              Pasadena, California

Before: O’SCANNLAIN, FISHER and BYBEE, Circuit Judges.

      Anthony Wafer appeals the dismissal of his 28 U.S.C. § 2254 habeas

petition challenging his convictions for robbery, burglary, assault and murder in

connection with a string of small business robberies. We have jurisdiction under

28 U.S.C. § 2253, we review de novo, see White v. Martel, 601 F.3d 882, 883 (9th

Cir. 2010), and we affirm.


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. We need not determine whether Wafer’s claim under Faretta v.

California, 422 U.S. 806 (1975), was procedurally defaulted. Because the claim

was addressed by the district court and has been fully briefed, we exercise our

discretion to deny the claim on the merits. See Runningeagle v. Ryan, 686 F.3d

758, 777 n.10 (9th Cir. 2012) (citing 28 U.S.C. § 2254(b)(2) and Gatlin v.

Madding, 189 F.3d 882, 889 (9th Cir. 1999)).

      Although Wafer asserts his February 1999 Faretta request was unequivocal

under United States v. Hernandez, 203 F.3d 614, 621-23 (9th Cir. 2000),

abrogated in part by Indiana v. Edwards, 554 U.S. 164 (2008), and Adams v.

Carroll, 875 F.2d 1441, 1444-45 (9th Cir. 1989), the California Court of Appeal’s

contrary conclusion was a reasonable determination of the facts under 28 U.S.C.

§ 2254(d)(2). See Stenson v. Lambert, 504 F.3d 873, 882-84 (9th Cir. 2007).

Wafer made the request in the context of a substitution motion; his clear preference

was appointment of new counsel; he did not renew his request between June 1999

and October 2000, the first day of trial; and the trial court, which was in the best

position to assess Wafer’s words in context, concluded he did not really want to

represent himself. When Wafer’s request to represent himself is considered in the

context of the entire hearing, the state court of appeal reasonably concluded the

request was equivocal.


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      The California Court of Appeal’s conclusion that Wafer’s second Faretta

request, made on the first day of trial, was untimely was neither contrary to nor an

unreasonable application of clearly established federal law. See 28 U.S.C.

§ 2254(d)(1). The Supreme Court has never addressed whether such a request is

timely, see Stenson, 504 F.3d at 884-85; Marshall v. Taylor, 395 F.3d 1058, 1060-

61 (9th Cir. 2005), and Ninth Circuit case law holding on direct appeal that a

request is timely if made before a jury is impaneled, e.g., United States v. Arlt, 41

F.3d 516, 519 (9th Cir. 1994), does not control under § 2254(d)(1).

      2. Wafer has not established cause and prejudice to excuse the procedural

default of his ineffective assistance of trial counsel (IATC) claim. Under Martinez

v. Ryan, 132 S. Ct. 1309, 1318 (2012), ineffective assistance of postconviction

review (PCR) counsel can establish cause to excuse procedural default of an IATC

claim where (1) PCR counsel was ineffective under Strickland v. Washington, 466

U.S. 668 (1984), in failing to raise the claim in a prisoner’s initial state habeas

petition and (2) the underlying IATC claim has some merit. Here, the record

shows trial counsel consulted a causation expert before trial but did not call an

expert at trial, instead relying on cross examination of the prosecution’s expert

witnesses to cast doubt on the cause of the victim’s death. Trial counsel, therefore,

appears to have made a reasonable tactical decision to proceed without an expert,


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distinguishing this case from those upon which Wafer relies. Cf. Duncan v.

Ornoski, 528 F.3d 1222, 1235-36 (9th Cir. 2008) (defense counsel failed even to

consult an expert, and thus had no basis for forgoing an expert at trial); Caro v.

Woodford, 280 F.3d 1247, 1255-56 (9th Cir. 2002) (same). Wafer, therefore, has

not shown PCR counsel provided ineffective assistance by failing to raise an IATC

claim in Wafer’s initial state habeas petition.

        3. Wafer also has not shown cause and prejudice to excuse the procedural

default of his claim under Batson v. Kentucky, 476 U.S. 79 (1986). “Ineffective

assistance of counsel can constitute cause to excuse a procedural default only if the

petitioner had a constitutional right to counsel in the proceeding in which the

default occurred.” Smith v. Idaho, 392 F.3d 350, 357 (9th Cir. 2004) (citing

Coleman v. Thompson, 501 U.S. 722, 752-53 (1991)). Here, Wafer had no right to

counsel in seeking discretionary review from the California Supreme Court, so his

counsel’s failure to raise his Batson claim in that forum does not establish cause.

See id. Although Wafer could establish cause by showing that he should not be

charged with the acts or omissions of his attorney, see Maples v. Thomas, 132 S.

Ct. 912, 922-24 (2012), he has neither made nor attempted to make that showing

here.

        For these reasons, the judgment of the district court is AFFIRMED.


                                           4
                                        ***

      Wafer’s unopposed motion to file an oversized letter brief (Dkt. 40), filed

August 25, 2015, is GRANTED. Counsel is admonished, however, for filing the

motion late and justifying the late motion by pointing to his incorrect construction

of the word and page limits imposed by the court.




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