                                                                               FILED
                            NOT FOR PUBLICATION                                OCT 17 2014

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



                            FOR THE NINTH CIRCUIT


GREGORY COLBERT,                                 No. 12-16105

              Petitioner - Appellant,            D.C. No. 5:10-cv-01675-RMW

  v.
                                                 MEMORANDUM*
MICHAEL MARTEL, Warden,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                     Argued and Submitted September 9, 2014
                            San Francisco, California

Before: WALLACE, SCHROEDER, and OWENS, Circuit Judges.

       Petitioner Gregory Colbert appeals from the district court judgment denying

his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Colbert

challenges his California convictions for first-degree murder and possession of a

firearm by a felon, arguing that he was denied his constitutional right to self-



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
representation. We have jurisdiction pursuant to 28 U.S.C. § 2253, and, under de

novo review, we affirm.

      We must deny Colbert’s habeas petition unless the decision of the California

Court of Appeal “(1) . . . was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States; or (2) . . . 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). Colbert asserts at the outset that the only issue in this case is whether

the state court decision was based on an unreasonable determination of the facts

under Section 2254(d)(2), but several of his specific arguments attack the legal

approach used by the California Court of Appeal, which we must analyze under

Section 2254(d)(1). Regardless, Colbert’s petition fails to meet the standard for

either prong.

      Under the first test of Section 2254(d), the decision of the California Court

of Appeal was not contrary to any principle of law clearly established by Supreme

Court precedent, nor did it involve an unreasonable application of any such

principle. The tension between the clearly established right to counsel, Iowa v.

Tovar, 541 U.S. 77, 80-81 (2004), and the clearly established right to self-

representation, Faretta v. California, 422 U.S. 806, 807 (1975), necessarily affords


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state courts broad leeway under habeas review in the area between the two rights.

Marshall v. Rodgers, 133 S. Ct. 1446, 1449-51 (2013) (per curiam). The approach

taken by California law generally and followed by the Court of Appeal specifically

in this case—to honor unequivocal requests for self-representation while drawing

every inference against a waiver of the right to counsel—falls well within the

latitude allowed by Supreme Court precedent.

      Likewise, under the second test of Section 2254(d), the decision of the

California Court of Appeal was not based on an unreasonable determination of the

facts presented in state court. For example, the fact that Colbert used his state-

provided attorney to file a motion shortly after his initial request for self-

representation was granted casts serious doubt on whether Colbert’s preference for

self-representation remained as clear and unequivocal as that displayed by the

defendant in Faretta, regardless of his reasons for doing so. See McKaskle v.

Wiggins, 465 U.S. 168, 182 (1984). Petitioner’s reliance on Adams v. Carroll, 875

F.2d 1441 (9th Cir. 1989), is misplaced because he has not met his burden under

AEDPA. See Stenson v. Lambert, 504 F.3d 873, 881, 883 (9th Cir. 2007). In light

of all of the evidence presented, it was not unreasonable for the California Court of

Appeal to determine under the legal principles discussed above that Colbert’s




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subsequent actions did not meet the standard to continue to invoke his Faretta right.

      AFFIRMED.




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