David Abara v. Jack Palmer; Attorney General for the State of Nevada

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID ABARA,
Petitioner-Appellant,
v.
JACK PALMER; ATTORNEY GENERAL
FOR THE STATE OF NEVADA,
Respondents-Appellees.
No. 17-17103
D.C. No.
3:10-cv-00688-HDM-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted September 9, 2019**
San Francisco, California
Before: GOULD, BEA, and FRIEDLAND, Circuit Judges.
David Abara appeals the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition challenging the Nevada Supreme Court’s determination that
his waiver of right to counsel was valid under Faretta v. California, 422 U.S. 806,
* 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).
FILED
SEP 11 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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835 (1975). We affirm.
We review de novo the district court’s decision to grant or deny a petition
for habeas corpus. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We may
grant habeas relief to a state prisoner “on a claim ‘adjudicated on the merits’ in
state court only if the decision ‘was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States.’” Waddington v. Sarausad, 555 U.S. 179, 190 (2009)
(quoting 28 U.S.C. § 2254(d)(1)). Federal habeas relief is unavailable so long as
‘“fairminded jurists could disagree’ on the correctness of the state court’s
decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.
Alvarado, 541 U.S. 652, 664 (2004)).
Abara argues that the Nevada Supreme Court unreasonably applied Faretta
to conclude that he had voluntarily chosen to represent himself because Abara’s
only other option besides self-representation was representation by counsel with
whom he had an irreconcilable conflict. We disagree.
Abara’s contention turns on whether he had an irreconcilable conflict with
his counsel. To prove an actual conflict, Abara must show that there was “an
incompatibility between . . . the lawyer’s own private interest and those of the
client.” Plumlee v. Masto, 512 F.3d 1204, 1210 (9th Cir. 2008) (en banc).
“[T]here is no Sixth Amendment right to ‘a meaningful relationship between an

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accused and his counsel,” id. at 1210-11 (quoting Morris v. Slappy, 461 U.S. 1, 14
(1983)), so a showing that the conflict was based in the defendant’s having
“refuse[d] to cooperate because of dislike or distrust” without any evidence of
other actual conflicts of interest is insufficient to prove a Sixth Amendment
violation. Id. at 1211.
Here, the state trial court conducted a lengthy inquiry into the alleged
conflicts before trial. Abara’s complaint that his lawyer had failed to communicate
with him was undercut when he did not dispute his lawyer’s statements that they
were in communication, and his complaint generally appeared to be based
primarily on frustration with case delays and a competency evaluation conducted
against his will, neither of which demonstrate an irreconcilable conflict. Abara’s
other assertions that his lawyer had previously worked as a prosecutor and worked
as an independent contractor with a large law group that Abara had sued as part of
a class action similarly failed to identify a specific “incompatibility.” As a result,
the Nevada Supreme Court did not unreasonably apply clearly established law to
conclude that Abara’s decision to represent himself was voluntary.
Abara separately contends that the Nevada Supreme Court unreasonably
erred in concluding that Abara had voluntarily, knowingly, and intelligently
waived his right to counsel to represent himself because Abara was not competent
to do so under Indiana v. Edwards, 554 U.S. 164 (2008). Even if Edwards applied

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retroactively to cases like Abara’s whose direct appeal had concluded by the time it
was decided (which the Supreme Court has not held it does), Abara misstates
Edwards’s holding. The Court held in Edwards that “the Constitution permits
States to insist upon representation by counsel for those competent enough to stand
trial . . . but who still suffer from severe mental illness to the point where they are
not competent to conduct trial proceedings by themselves.” 554 U.S. at 178
(emphasis added). Edwards did not take away a state’s ability to allow self-
representation so long as the defendant is competent to stand trial. The Supreme
Court’s decision in Edwards therefore does not render erroneous the Nevada
Supreme Court’s determination that Abara could lawfully represent himself.
AFFIRMED.

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