                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 24 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



DAVID GEORGE CHANDLER,                           No. 09-35019

             Petitioner - Appellant,             D.C. No. 3:06-cv-01777-PK

  v.
                                                 MEMORANDUM *
SHARON BLACKETTER,

             Respondent - Appellee.



                  Appeal from the United States District Court
                            for the District of Oregon
                Ancer L. Haggerty, Senior District Judge, Presiding

                           Submitted February 1, 2010 **
                               Seattle, Washington

Before: RYMER, GOULD and BYBEE, Circuit Judges.

       Petitioner David George Chandler (“Chandler”) seeks habeas corpus relief

from his conviction in Oregon state court. We review the district court’s denial of

habeas relief de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000).


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Chandler carries the burden of proving by a preponderance of the evidence that he

is entitled to habeas relief, Silva v. Woodford, 279 F.3d 825, 835 (9th Cir. 2002),

and is only entitled to such relief if the state court decision he challenges was

“contrary to . . . clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). Since Chandler has failed to

identify any clearly established federal law, as determined by the Supreme Court,

holding that a defendant’s Sixth Amendment right to counsel cannot be forfeited

through particularly egregious conduct, the district court properly denied his

application.

      Although the Supreme Court has never directly held that the right to counsel

can be forfeited, the Court has also never held to the contrary, and has held that

another fundamental Sixth Amendment right—the right to be present at one’s own

trial—can be forfeited through misconduct. See Taylor v. United States, 414 U.S.

17, 19-20 (1973) (per curiam); Illinois v. Allen, 397 U.S. 337, 342-43 (1970).

Between Chandler’s progression of court-appointed attorneys—all of whom were

apparently discharged due to Chandler’s machinations—and Chandler’s own boast

that he “kn[e]w of many ways to drag this on indefinitely, and . . . w[ould] not

hesitate to do so” in a letter to the prosecutor, there was ample evidence indicating




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that Chandler, like the defendant in Allen, was engaging in “conduct . . . to avoid

being tried on the charges brought against him.” Allen, 397 U.S. at 346.

      Most importantly, Chandler has failed to identify—and we cannot find—any

Supreme Court case clearly establishing that the right to counsel cannot be

forfeited through a defendant’s misconduct. See 28 U.S.C. § 2254(d)(1); Crater v.

Galaza, 491 F.3d 1119, 1123 (9th Cir. 2007) (“[I]f habeas relief depends upon the

resolution of an ‘open question in [Supreme Court] jurisprudence,’ § 2254(d)(1)

precludes relief.” (quoting Carey v. Musladin, 549 U.S. 70, 76 (2006)).

      AFFIRMED.




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