Cook v. Marshall

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KIM M. COOK,
Petitioner,
vs.
WILLIAM LAPINSKAS, Superintendent,
Spring Creek Correctional Center,1
Respondent.
No. 3:14-cv-00002-JKS
MEMORANDUM DECISION
Kim M. Cook, a state prisoner now represented by counsel, filed a Petition for a Writ of
Habeas Corpus with this Court pursuant to 28 U.S.C. § 2254. Cook is in the custody of the
Alaska Department of Corrections and incarcerated at Spring Creek Correctional Center.
Respondent has answered, and Cook has replied.
I. BACKGROUND/PRIOR PROCEEDINGS
Cook was charged with first-degree murder for shooting a state trooper who was
performing a routine welfare check. On direct appeal of his conviction, the Alaska Court of
Appeals laid out the following facts underlying the charges against Cook:
In the early morning of May 15, 1999, Palmer Police Officer James Rowland was
1 William Lapinskas is substituted for L. Dean Marshall as Superintendent, Spring
Creek Correctional Center. FED . R. CIV . P. 25(d).
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on patrol, accompanied by a civilian “ride-along.” This civilian was Todd Russell, a
fireman and EMT, who was Rowland’s longtime friend. Rowland and Russell noticed a
pickup truck parked near the entrance to the Carrs grocery parking lot. The vehicle’s
windows were fogged up, and it appeared that someone was slumped over the steering
wheel. Rowland parked behind this truck and gave his dispatcher the license plate
number. The dispatcher informed Rowland that the owner of the truck was Kim Michael
Cook, and that Cook’s driver’s license and vehicle registration had both expired.
While Russell sat in the patrol car, Rowland approached the truck and knocked on
the window. The occupant, who was indeed Cook, opened the door and got out of the
truck. Rowland and Cook went to the back of the truck and conversed for a few minutes.
Then, when Rowland reached for his handcuffs, Cook turned and ran toward the
driver’s-side door of the pickup. Rowland caught up with Cook and wrapped his arms
around him. The two men struggled, and their efforts carried them inside the cab of the
truck. As Russell watched the two men fight, he heard a popping sound, then two more
slightly louder popping sounds. These were three gunshots. Rowland fell to his knees
and then collapsed outside the truck. Russell used the patrol car radio to summon an
ambulance. At about the same time, Cook got out of the truck, staggered for a bit, and
then lay down on the ground.
Rowland had been shot once in his upper chest. He bled to death. Cook had been
shot twice in his chest, but he survived and was charged with first-degree murder.
Cook v. State, No. A-7947, 2004 WL 719771, at *1 (Alaska Ct. App. Mar. 31, 2004).
On May 27, 1999, Hallie Rowland, Officer Rowland’s widow and the personal
representative of his estate filed in the Alaska Superior Court a wrongful death lawsuit against
Cook seeking compensatory and punitive damages. When Cook appeared at a criminal
arraignment the following day, he was served with the complaint, but he failed to answer it
within 20 days as required by Alaska law. Rowland then applied for entry of Cook’s default.
Three days after the default was entered, Rowland requested a hearing to establish
damages for the default judgment. She subsequently withdrew the request and proposed that the
court enter a default judgment without a hearing. Rowland calculated her total compensatory
damages at $1,753,975, and requested an award of punitive damages of three times that amount,
or $5,261,925. The Superior Court accepted Rowland’s request and entered a total default
judgment of $7,015,900, against Cook on June 28, 1999.
On July 21, Cook responded to the civil suit for the first time by moving to set aside the
entry of default and the default judgment. The court set a hearing for two weeks later and
ultimately denied Cook’s motion to set aside the default judgment.
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As a result of the court’s denial, Cook was unable to use his assets to retain private
counsel to represent him in the criminal case. Cook appealed the superior court’s decision to not
set aside the default judgment against him. While that appeal was pending, the criminal case
against Cook proceeded, and a public defender was appointed to represent Cook in the criminal
case.
On the fifth day of trial, Cook told the trial judge that he was dissatisfied with his
appointed counsel and wanted to be appointed co-counsel. The judge directed Cook and his
attorney to discuss the issue over the weekend and, if necessary, renew the application on the
following Monday. On that Monday, Cook’s counsel informed the court that the disagreement
had not been resolved, and Cook asked to fire his appointed counsel. Cook requested another
appointed attorney, but stated that he would represent himself with an advisor if the judge
rejected his request for another attorney. After further discussions with the court, Cook asked
that the court to relegate his appointed counsel to advisor status and allow Cook to represent
himself. The court discussed with Cook the benefits of counsel and the dangers of self-
representation. After examining Cook about his request, the judge found that Cook knowingly,
intelligently, and voluntarily waived his right to counsel. From that point on, Cook represented
himself at trial with the consultation of his former attorneys. Cook was subsequently convicted
of first-degree murder.
Almost two years after Cook’s conviction, the Alaska Supreme Court held that the
superior court abused its discretion in refusing to set aside the default judgment against Cook
because it did not recognize the difficulties Cook faced in timely responding to the civil
complaint. Cook v. Rowland, 49 P.3d 262, 264-67 (Alaska 2002). Cook then filed a petition for
post-conviction relief from his murder conviction, arguing that the error in the civil case
amounted to a deprivation of Cook’s Sixth Amendment right to choice of counsel in his criminal
case. The Superior Court granted the petition, and the Alaska Court of Appeals reversed. State
v. Cook, 265 P.3d 342 (Alaska Ct. App. 2011). Cook petitioned the Alaska Supreme Court for
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hearing, which was granted. On November 18, 2013, the Supreme Court affirmed the Court of
Appeal’s denial in a divided order dismissing the petition for review as improvidently granted.
Cook v. State, 312 P.3d 1072 (Alaska 2013).
Cook then filed a pro se Petition for a Writ of Habeas Corpus to this Court on December
23, 2013, the timeliness of which Respondent does not contest. Docket No. 1. His request for
appointed counsel was granted, and an Amended Petition (Docket No. 15 “Petition”) was
subsequently filed. The Petition is now before the undersigned judge for adjudication.
II. GROUNDS/CLAIMS
In his counseled Petition before this Court, Cook argues that the state court violated his
Sixth Amendment right to the counsel in two ways. First, Cook avers that he was deprived of
counsel of his choice when the court erroneously limited his access to his personal assets. He
additionally contends that the trial court erred in allowing Cook to represent himself at trial
because Cook did not unequivocally waive his right to counsel.
III. STANDARD OF REVIEW
Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C.
§ 2254(d), this Court cannot grant relief unless the decision of the state court was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States,” § 2254(d)(1), or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding,”
§ 2254(d)(2). A state-court decision is contrary to federal law if the state court applies a rule that
contradicts controlling Supreme Court authority or “if the state court confronts a set of facts that
are materially indistinguishable from a decision” of the Supreme Court, but nevertheless arrives
at a different result. Williams v. Taylor, 529 U.S. 362, 406 (2000).
The Supreme Court has explained that “clearly established Federal law” in § 2254(d)(1)
“refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the
relevant state-court decision.” Id. at 412. The holding must also be intended to be binding upon
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the states; that is, the decision must be based upon constitutional grounds, not on the supervisory
power of the Supreme Court over federal courts. Early v. Packer, 537 U.S. 3, 10 (2002). Where
holdings of the Supreme Court regarding the issue presented on habeas review are lacking, “it
cannot be said that the state court ‘unreasonabl[y] appli[ed] clearly established Federal law.’”
Carey v. Musladin, 549 U.S. 70, 77 (2006) (citation omitted).
To the extent that the Petition raises issues of the proper application of state law, they are
beyond the purview of this Court in a federal habeas proceeding. See Swarthout v. Cooke, 131 S.
Ct. 859, 863 (2011) (per curiam) (holding that it is of no federal concern whether state law was
correctly applied). It is a fundamental precept of dual federalism that the states possess primary
authority for defining and enforcing the criminal law. See, e.g., Estelle v. McGuire, 502 U.S. 62,
67-68 (1991) (a federal habeas court cannot reexamine a state court’s interpretation and
application of state law); Walton v. Arizona, 497 U.S. 639, 653 (1990) (presuming that the state
court knew and correctly applied state law), overruled on other grounds by Ring v. Arizona, 536
U.S. 584 (2002).
In applying these standards on habeas review, this Court reviews the “last reasoned
decision” by the state court. See Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004)
(citing Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002)). A summary denial is an adjudication
on the merits and entitled to deference. Harrington v. Richter, 562 U.S. 86, 99 (2011). Under
the AEDPA, the state court’s findings of fact are presumed to be correct unless the petitioner
rebuts this presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Miller-El v.
Cockrell, 537 U.S. 322, 340 (2003).
IV. DISCUSSION
A. 	Deprivation of Right to Counsel of Choice
Cook first argues that his Sixth Amendment right to counsel of choice was violated when
the superior court erroneously refused to set aside the default judgment entered against him in
the civil case, which limited his ability to retain counsel of choice in his criminal proceedings.
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In the last reasoned decision addressing this claim, a divided Alaska Supreme Court considered
and rejected the claim on post-conviction review as follows:2
Almost two years after Cook was convicted of murder, we held that the superior
court erred in the civil case by failing to recognize the difficulties Cook faced in
responding timely to the civil complaint and refusing to set aside the default judgement.
The error we identified did not include any failure by the superior court to take Cook’s
Sixth Amendment rights into account when it denied his motion to set aside the default
judgement. Cook then filed a petition for post-conviction relief from his murder
conviction, arguing that Judge Cutler’s error in the civil case amounted to a deprivation
of his Sixth Amendment right to choice of counsel. Superior Court Judge Eric Smith
granted the petition for post-conviction relief and set aside Cook’s murder conviction.
The court of appeals reversed. Cook petitioned for hearing, and we granted the petition.
We are now faced with the narrow question whether the decision in the civil appeal
reversing the denial of the motion to set aside the default judgement is a new fact under
AS 12.72.010(4) that “requires vacation of the [criminal] conviction or sentence in the
interest of justice.”
[] A criminal defendant has a right under the Sixth Amendment to the United
States Constitution and article I, section 11 of the Alaska Constitution to counsel of his
choice. This right is not absolute. The defendant has no right to insist on representation
by an attorney that he cannot afford. Nor does he have a right to spend assets that have
been lawfully seized or frozen in a separate proceeding, even if those assets are necessary
to retain the attorney of his choice. The United States Supreme Court has stated that “the
essential aim” of the Sixth Amendment “is to guarantee an effective advocate for each
criminal defendant rather than to ensure that a defendant will inexorably be represented
by the lawyer whom he prefers.”
In Cook v. Rowland, we concluded that Judge Cutler erred in failing to recognize
Cook’s difficulty in responding timely to the civil suit to be excusable neglect when she
refused to set aside the default judgement against Cook in the civil case. This error may
have had the collateral consequence of depriving Cook of the funds necessary to hire the
private counsel of his choice. But there is no evidence that either the State prosecutor or
Judge Cutler had any intent to interfere with Cooks ability to hire private counsel or to
deprive him of his Sixth Amendment rights. Indeed, Judge Smith quoted Judge Torrisi’s
earlier finding that the State had not intentionally tried to restrict Cook’s choice of
counsel: “[I]t is absolutely clear that the State was not trying to prevent Mr. Cook from
hiring private counsel. In fact, they were doing the exact opposite.” As Judge Torrisi
noted, the State was actually “trying to make sure [Cook] hired [private counsel] if he
2 In conducting review of a state court decision, federal courts “look to the last
reasoned state-court decision.” Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003). In this
case, the Alaska Supreme Court did not issue a formal opinion affirming the Court of Appeals’
denial of post-conviction relief, but rather issued an order dismissing as improvidently granted
its earlier-granted petition for review. Cook, 312 P.2d 1072. Because the Supreme Court
provided a reasoned explanation for its decision that addressed the merits of Cook’s claim, it
appears that its order is the last reasoned state-court decision in this case. But even if that
assumption is incorrect, the Court of Appeals’ decision, which would then be the last-reasoned
state court decision, is predominantly consistent with the Supreme Court’s order, and this
Court’s analysis in this opinion applies equally to both determinations.
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had that much money.” 13 Cook does not challenge this factual finding. Nor is there any
evidence that Judge Cutler acted with intent to violate Cook’s Sixth Amendment rights.
Judge Smith made no such finding, and the court of appeals concluded that restriction of
Cook’s choice of counsel “was not the point” of Judge Cutler’s refusal to set aside the
default judgement and observed that there was no evidence in the record that she
considered Cook’s ability to hire the counsel of his choice when she made her decision.
Cook does not dispute this conclusion. Indeed, Cook argues that intent is immaterial and
that he should be granted a new trial on Sixth Amendment grounds “regardless of [Judge
Cutler’s] motives.” It is unsurprising that Judge Cutler would not have considered any
Sixth Amendment implications of her default judgement ruling given that Cook did little
or nothing to flag the issue in the civil case. Although Cook asserted that the entry of
default made it impossible for him to hire an attorney in the civil case, he never asserted
in the civil case that he could not afford an attorney in the criminal case. And Cook
never argued to Judge Cutler that her refusal to set aside the default judgement violated
his Sixth Amendment rights in the criminal case.15 Nor did he appeal Judge Cutler’s
denial of his motion to set aside the default judgement on Sixth Amendment grounds.
The question, then, is whether an incidental error in a separate civil case, detected years
later on appeal and unintentionally affecting a criminal defendant’s ability to hire the
counsel of his choice, is enough to overturn an otherwise valid conviction in the criminal
case and order a new trial on Sixth Amendment grounds.
FN13. Judge Torrisi made this finding in his decision denying Cook’s motion to
continue the criminal case for prosecutorial misconduct.
FN15. The dissent argues that this court’s opinion in Armstrong v. Tanaka, 228
P.3d 79 (Alaska 2010), should have compelled the superior court to
“expressly consider” and balance Cook’s Sixth Amendment rights against
other interests when deciding Cook’s motion. But Armstrong involved a
distinct question, and our holding in that case is inapposite. There, we
held that “when the plaintiff in a civil case is simultaneously defending
himself in a related criminal case, and he moves to stay civil proceedings
to protect his right against self-incrimination, the trial court must balance
both parties’ interests.” Id. at 80 (emphasis added). Unlike the criminal
defendant in Armstrong, Cook never argued to Judge Cutler that refusing
to set aside the default judgement would impair his Sixth Amendment
rights in the related criminal case. Thus, the dissent applies Armstrong
beyond its predicate when it asserts that “Armstrong at a minimum
requires” that “the judge consider [ ] the defendant’s constitutional rights.”
The United States Supreme Court has generally rejected the idea that civil actions
that collaterally affect a defendant’s financial condition—and thus his ability to afford the
attorney of his choice in a separate criminal case—violate the Sixth Amendment right to
choice of counsel. In Caplin & Drysdale, Chartered v. United States, the Court held that
the Sixth Amendment right to counsel does not prevent a criminal defendant’s assets
from being seized in a related civil case, even if that seizure prevents the defendant from
hiring the attorney of his choice in the criminal case. In Caplin, a criminal defendant was
charged with running a massive drug importation and distribution scheme. The
government sought to seize the proceeds from this enterprise under the federal drug
forfeiture statute. The government obtained a restraining order barring the defendant
from transferring his potentially forfeitable assets. Despite the order, the defendant paid
a law firm $25,000 to represent him. The defendant pleaded guilty in the criminal case,
and the court seized virtually all of his assets. The law firm petitioned the court to
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adjudicate the firm’s rights to the funds. After concluding that the federal forfeiture
statute did not permit the defendant to use the contested funds to pay his attorneys, the
Court concluded that the statute did not violate the defendant’s Sixth Amendment rights.
The Court reasoned that the governmental interest in obtaining full recovery trumped the
defendant’s Sixth Amendment interest in using the contested assets to pay for his
defense. “A defendant has no Sixth Amendment right to spend another person’s money
for services rendered by an attorney, even if those funds are the only way that that
defendant will be able to retain the attorney of his choice.”
[] The dissent objects to our reliance on the fact that neither Judge Cutler nor the
State had any intent to interfere with Cook’s exercise of his Sixth Amendment rights.
The dissent maintains that it is “unaware of any authority . . . [stating] that a
constitutional deprivation in the trial courts is without remedy unless the State or the
court specifically intended that the constitution be violated.” But there is nothing new or
improper about finding a constitutional deprivation only when the court intended to effect
a deprivation. For example, the United States Supreme Court famously held in Batson v.
Kentucky that “[p]urposeful racial discrimination in selection of the [jury] venire violates
a defendant’s right to equal protection” but otherwise reaffirmed the general principle
that the discriminatory impact of facially neutral practices in jury selection is not a
violation of the Equal Protection Clause. Indeed, as state actors, courts are often subject
to the same motive inquiries that define prohibited state action more generally. Motive is
the determinative factor in many doctrines of constitutional law, and motive is especially
relevant in this case: Unlike the dissent, our reliance on motive draws a clear line
between prohibited and permissible state action. Every state action involving a person’s
money will foreseeably have an impact on that person’s exercise of a constitutionally
protected right, yet we do not require state actors to sua sponte balance those incidental
impacts against other concerns in all such cases.
[] Neither Cook nor the dissent cites any precedent for reopening a settled
criminal case on Sixth Amendment grounds merely because, years later, an error was
detected on appeal in a concurrent civil case that may have prevented the criminal
defendant from accessing some of his assets. The cases Cook cites that have found Sixth
Amendment violations are completely distinguishable because in those cases an order
was issued in the criminal case itself that prevented the defendant’s chosen attorney from
participating in the criminal proceeding. But in Bell v. Todd, the Tennessee Court of
Appeals held that an erroneously entered default judgement in a related but separate civil
case did not implicate a criminal defendant’s Sixth Amendment rights because “[t]he
right to retain counsel does not carry with it an entitlement to funds that have been
sequestered by a court to secure the interests of a claimant or the public.”
[] We agree with the court of appeals that under Cook’s view of this issue, any
judg[ment] directing a person to pay damages for a breach of contract, or to pay back
taxes and penalties, or even to pay a fine as punishment for an unrelated crime, would be
deemed an abridgement of that person’s Sixth Amendment right to counsel of choice in a
pending criminal case if (1) the person was forced to satisfy the judg[ment] (or, at least,
forced to sequester funds to pay the judg[ment] ), and (2) the person’s lack of funds
prevented the person from hiring a private attorney in the criminal case, or at least the
particular private attorney the person would otherwise have chosen, and then (3) the
money judg[ment] was later overturned because of a procedural error, or a mistaken
evidentiary ruling, or an improper jury instruction.
[] We conclude that finding a constitutional violation in such a case would subject
the finality of criminal convictions to events outside the control of the judge or the parties
to the criminal case. Here, the State was not a party to the civil suit and had no means of
detecting or preventing reversible error in that case. Nor would a judge presiding over a
criminal case have the power to protect against error in a related civil suit handled by a
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different judge.
[] Cook argues that the rule he proposes can be limited to the unique
circumstances of his case. In particular, Cook argues that a constitutional error may be
found in this case because the civil and criminal proceedings were closely related. But
we see no principled way to protect the finality of criminal convictions by limiting this
case to its facts. The fact that the same judge presided over both the civil and criminal
proceedings for a period of time in this case is irrelevant to Cook’s broader legal
argument that he was deprived of his Sixth Amendment rights. Under Cook’s argument,
a judge commits constitutional error as a state actor whenever an error in the civil case
restricts a party’s ability to hire his preferred attorney, regardless of who presides over
the criminal case. Nor is the fact that the civil and criminal trials in this case stemmed
from the same alleged act pertinent to Cook’s constitutional analysis. The subject matter
of the civil or criminal case cannot possibly be relevant to the question whether an error
in the civil case has limited a criminal defendant’s ability to hire the attorney of his
choice. The only relevant issue is whether that error prevented the defendant from
accessing his funds. Under Cook'’ constitutional interpretation, any such error in a civil
case—closely related or not—would violate a defendant’s Sixth Amendment rights in the
criminal case if it prevented the defendant from accessing the funds necessary to hire the
attorney of his choice. Therefore, although the civil and criminal cases happened to arise
out of the same conduct by Cook and were briefly before the same judge in this case,
those facts are not a useful way to distinguish future cases. If we conclude that the error
in the civil case violated Cook’s Sixth Amendment rights we must also conclude, as the
court of appeals did, that “a criminal defendant's Sixth Amendment rights would be
violated by any judg[ment] or order in any proceeding if that judg [ment] or order
deprived the defendant of the funds necessary to hire a private attorney in a pending
criminal case, and if the judg[ment] or order was later overturned for any reason in a
subsequent appeal, or in a motion for relief from judg[ment].”
[] Although the dissent predicts that the “unusual facts of this case” will be
“unlikely to arise again,” the logic of the dissent’s proposed rule would extend far
beyond its factual predicate. The U.S. Supreme Court recognized this line-drawing
problem and cited it as support for its holding in Caplin, asking rhetorically:
If defendants have a right to spend forfeitable assets on attorney’s fees,
why not on exercises of the right to speak, practice one’s religion, or travel? . . .
The full exercise of these rights, too, depends in part on one’s financial
wherewithal; and forfeiture . . . may similarly prevent a defendant from enjoying
these rights as fully as he might otherwise. Nonetheless, we are not about to
recognize an antiforfeiture exception for the exercise of each such right; nor does
one exist for the exercise of the Sixth Amendment rights.
Similarly, in the present case, if a defendant has a right to have a court weigh, sua
sponte, the effects of a civil judgement on the defendant’s ability to procure a lawyer of
his choice in a parallel criminal case presided over by the same judge, then why not in a
non-parallel case or one presided over by a different judge? Moreover, why would
entering judgement in any civil matter without considering the effect of the judgement on
the losing party’s ability to exercise any constitutionally protected right not
impermissibly burden that right? Finding no principled stopping point for such a sua
sponte duty on state actors to consider incidental burdens on constitutional rights, we
prefer the improper-motive inquiry announced in this order. It adequately protects
against unconstitutional penalties sought by intentional bad actors without presenting
intractable line-drawing problems.
[] Therefore, the Petition for Hearing, filed on January 18, 2012 and granted on
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June 5, 2012, is DISMISSED as improvidently granted.
Cook, 312 P.3d at 1073-77 (citations omitted).3
Two of the five justices dissented, concluding that the superior court’s denial in the civil
case of Kim’s access to the funds he needed to retain counsel in the criminal proceedings
constituted structural error warranting a new trial. Id. at 1078-90. Cook now asserts that the
majority’s determination was unreasonable and contrary to federal law, thus warranting federal
3 Cook moved for post-conviction relief in the Alaska state courts under Alaska
Rule of Criminal Procedure Rule 35.1(4), which provides that a defendant may move for post-
conviction relief if “there exists evidence of material facts, not previously presented and heard,
that requires vacation of the conviction or sentence in the interest of justice.” Notably, Cook did
not move for post-conviction relief under Rule 35.1(a)(1), which refers to a conviction or
sentence in violation of the U.S. or Alaska constitution. The Supreme Court thus construed the
question before it very narrowly: “whether the decision in the civil appeal reversing the denial of
the motion to set aside the default judgement is a new fact under AS 12.72.010(4) that ‘requires
vacation of the [criminal] conviction or sentence in the interest of justice.’” Cook, 312 P.3d at
1072.
This procedural posture, which relates solely to an issue of state law, begs the question of
whether this Court has jurisdiction to consider on federal habeas review Cook’s Sixth
Amendment claim. In order to exhaust state remedies, a petitioner must present the substance of
his claim to the state courts. See Picard v. Connor, 404 U.S. 270, 278 (1971). The state courts
have been given a sufficient opportunity to hear an issue when the petitioner has presented the
state court with the issue’s factual and legal basis. Weaver v. Thompson, 197 F.3d 359, 364 (9th
Cir. 1999); see also Scott v. Schriro, 567 F.3d 573, 582-83 (9th Cir. 2009) (“Full and fair
presentation additionally requires a petitioner to present the substance of his claim to the state
courts, including a reference to a federal constitutional guarantee and a statement of facts that
entitle the petitioner to relief.”). Exhaustion is satisfied once the petitioner makes an explicit
reference to federal law, even if the petitioner relies predominately on state law before the state
courts. See Jones v. Smith, 231 F.3d 1227, 1231 (9th Cir. 2000). A claim not alleged in a state
petition may be exhausted if “sufficiently related” to an exhausted claim. See Lounsbury v.
Thompson, 374 F.3d 785, 788 (9th Cir. 2004). Likewise, once the petitioner fairly presents the
claim to the state courts, exhaustion is satisfied even if the state court’s decision is silent on the
particular claim. See Dye v. Hofbauer, 546 U.S. 1, 3, (2005) (per curiam).
Here, Cook explicitly referenced his Sixth Amendment right to counsel and alleged facts
contending that his right to counsel of choice was violated by the trial court’s failure to set aside
the default judgment. Given that the analysis of his claim of new evidence of material facts
rested on his contention that his Sixth Amendment rights had been violated, it appears that Cook
fairly presented his Sixth Amendment claim to the state courts, and this Court may consider it on
its merits.
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habeas relief.
The Sixth Amendment right to counsel guarantees to an accused the concomitant rights to
conflict-free representation and the effective assistance of counsel. See Wheat v. United States,
486 U.S. 153, 156 (1988); Strickland, 466 U.S. at 686. It also includes a right to counsel of
choice for those who can hire their own attorney. See Wheat, 486 U.S. at 159. However,
although the right to counsel is absolute, the right to choice of counsel is limited or qualified. Id.
(“[W]hile the right to select and be represented by one’s preferred attorney is comprehended by
the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate
for each criminal defendant rather than to ensure that a defendant will inexorably be represented
by the lawyer whom he prefers.”); see also Luis v. United States, 136 S. Ct. 1083, 1089 (2016)
(plurality). “A defendant has not right, for example, to an attorney who is not a member of the
bar, or who has a conflict of interest due to a relationship with the opposing party.” Luis, 136 S.
Ct. at 1089 (citation omitted). Notably, “[a] defendant has no Sixth Amendment right to spend
another person’s money for services rendered by an attorney, even if those funds are the only
way that the defendant will be able to retain the attorney of his choice.” Caplin & Drysdale,
Chartered v. United States, 491 U.S. 617, 626 (1989). In particular, where funds are in a
defendant’s possession unlawfully, the defendant’s Sixth Amendment right to counsel of his
choice is not violated when those funds are seized and the defendant is precluded from using
those funds to retain defense counsel in criminal proceedings. Id.
Here, Cook’s Sixth Amendment argument arises from the default judgment entered
against him in a civil case that, although it involved the same underlying facts, was otherwise
separate and unrelated to the criminal proceedings. In support of his claim, Cook largely relies
on United States v. Gonzalez-Lopez, 548 U.S. 140 (2006). In that case, the Supreme Court held
that “erroneous deprivation of the right to choice of counsel, with consequences that are
necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error.” Id. at
150 (internal quotations omitted). But Gonzalez-Lopez is distinguishable from Cook’s case
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because in that case, the trial court deprived the defendant of his right to counsel in the instant
criminal proceeding by erroneously refusing to admit as counsel of record in that case Gonzalez-
Lopez’s choice of retained attorney. Id. As the Alaska Supreme Court explained, the superior
court’s actions in the unrelated civil case against Cook had the ancillary effect of hampering
Cook’s ability to retain counsel in the criminal proceedings. Thus, it cannot be said that
Gonzalez-Lopez constitutes clearly-established law on the facts of Cook’s claim. Carey, 549
U.S. at 77 (noting that, where the Supreme Court has not adequately addressed a claim, a federal
court cannot find a state court ruling unreasonable).
For the same reasons, cases finding a violation of the right to counsel of choice due to the
Government’s pretrial restraint of a defendant’s asserts are likewise distinguishable and unable
to provide the basis for federal habeas relief in this case. See, e.g., Luis, 136 S. Ct. at 1083, 1088
(holding in a plurality opinion “that the pretrial restraint of legitimate, untainted assets needed to
retain counsel of choice violates the Sixth Amendment”). In those line of cases, the Government
sought forfeiture in the criminal proceeding based upon a federal statute. As another district
court has explained, assets obtained from an unrelated civil proceeding “are distinctly different
from asserts frozen under criminal statutes.” United States v. Johnson, No. 2:11-cr-501, 2016
WL 4087351, at *3 (D. Utah July 28, 2016) (finding “no Sixth Amendment violation when
Johnson was denied access to funds to hire an attorney when the funds were held by the receiver
pursuant to court order in a civil case in another jurisdiction”). In the absence of clearly
established Supreme Court law directly supporting Cook’s contention that a private party’s
restraint of a criminal defendant’s untainted assets in a civil action implicates the Sixth
Amendment choice of counsel in a criminal prosecution, Cook cannot obtain federal habeas
relief. See Knowles v. Mirzayance, 556 U.S. 111, 121 (2009) (“it is not an unreasonable
application of clearly established Federal law for a state court to decline to apply a specific legal
rule that has not been squarely established by this Court”) (citations and internal quotations
omitted); Wright v. Van Patten, 552 U.S. 120, 126 (2008) (“Because our cases give no clear
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answer to the question presented, . . . it cannot be said that the state court unreasonably applied
clearly established Federal law”) (citation, internal brackets and quotations omitted).
Cook also devotes much of the Amended Petition to addressing the actions of the
prosecutor and the judge in the civil case other than those related to the erroneous denial of his
motion to set aside the default judgment in an attempt to establish other erroneous or unjustified
state action in support of his claim.4 He contends that “the justice system as a whole prevented
Cook from being represented by the attorney of his choice.” For example, Cook avers that the
prosecutor publicly filed Cook’s confidential financial information in the criminal case to argue
that Cook was not entitled to the appointment of counsel, which was later sealed, but not before
the attorney for the Estate used the documents “to freeze as many of Cook’s assets as he could
find.” Cook additionally alleged that Judge Cutler moved the civil case “at a suspiciously quick
pace.”
Cook faults the decision of the Alaska Supreme Court for focusing on the superior court
and Court of Appeal’s factual findings that neither the prosecutor nor Judge Cutler acted with the
intent of preventing Cook from retaining private counsel because the denial of the right to
counsel is structural without regard to intent, Gonzalez-Lopez, 548 U.S. at 149-50. But the state
courts’ finding that none of those other state actions had the effect of violating Cook’s right to
4 Respondent argues that, to the extent Cook challenges state actions other than the
denial of his motion to set aside the default judgment, Cook has failed to exhaust such claim in
the state courts. According to Respondent, because Cook did not raise his denial-of-counsel-of-
choice claim on direct appeal, he was limited to seeking post-conviction relief solely on the
ground that the reversal of Judge Cutler’s decision refusing to set aside the default judgment in
the civil case constituted new evidence warranting a new criminal trial. The State thus contends
that Cook may raise Judge Cutler’s erroneous refusal to set aside the default judgment as the sole
ground for support of his denial of choice claim in these proceedings. In his merits brief, Cook
argues that he was unable to raise the claim on direct appeal because it involved the erroneous
ruling in the civil case and that if the State’s position were correct, that would render it
impossible to properly litigate his claim in full. Because the facts of his denial-of-counsel-of-
choice claim were outside the record of his criminal case, it appears that Cook correctly argues
that it would not have been proper to raise the claim on direct appeal. The Court therefore
declines to address the claim solely on exhaustion grounds.
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counsel in the criminal proceeding is nonetheless a factual finding entitled to this Court’s
deference. Cook fails to demonstrate that the factual finding is unreasonable. In any event,
Cook has not shown under any clearly established federal law that the effects of those other
actions violated his right to counsel of choice. Cook is not entitled to relief on any argument
advanced in support of this claim.
B. 	Erroneous Grant of Self-Representation
Cook additionally contends that the trial court erred in allowing him to represent himself
at trial. In the last reasoned opinion addressing this claim, the Alaska Court of Appeals
considered and rejected this claim on direct appeal as follows:
Prior to Cook’s trial, and for the first four days of the trial, Cook was represented
by the Public Defender Agency. In fact, two assistant public defenders were assigned to
his case. But on the fifth day of trial (Friday, October 20, 2000), Cook and his two
attorneys asked to speak to Judge Torrisi privately (i.e., ex parte). At this ex parte
hearing, Cook told the judge that he was dissatisfied with his lawyers and that he wanted
to assume the role of co-counsel.
The crux of the problem, according to Cook, was that he believed that the State
had manufactured ballistics evidence against him, but his attorneys refused to pursue this
claim of falsified evidence at trial. Cook’s defense attorneys responded that they had
considered Cook’s claim, but they concluded that the purported inconsistencies in the
ballistics evidence could be explained. The attorneys told Judge Torrisi that, in their
opinion, it would be a mistake for the defense to raise a claim of manufactured evidence
because “[they] would lose all [their] credibility in front of the jury”.
After hearing from both Cook and his attorneys, Judge Torrisi directed them to
discuss their differences over the weekend, and he invited Cook to raise the issue again
on Monday if Cook still wished to pursue the matter.
On Monday morning, the defense attorneys informed Judge Torrisi that they had
discussed trial strategy with Cook over the weekend, and the upshot was that Cook and
the attorneys “basically [had] two mutually exclusive theories of the case”, so that the
decision regarding trial strategy “[could not] be dealt with in a [co-operative] manner”.
In other words, the issue could not be resolved by making Cook co-counsel, because
Cook’s proposed trial strategy and the attorneys’ trial strategy could not be reconciled.
Cook then told Judge Torrisi that he wanted to fire his public defenders. The following
colloquy ensued:
The Court: And what do you want to do?
Cook: ... [M]y first choice would be to have an appointed attorney. If that’s
rejected, then I’ll represent myself with an advisor.
The Court: Well, what would an appointed attorney do at this stage of the
proceedings? I mean, ... the State’s case is two days from being finished....
Cook: Well, then, I’ll represent myself with-the case law says [that] I’m entitled
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to advisors. So I’d like a different advisor appointed [for] me.... And if that’s not
possible, then I can keep-my second option would be to keep these guys [i.e.,
Cook’s two current public defenders] as advisors. But [with the understanding
that] I can either accept or reject their advice.
Judge Torrisi immediately sought to dissuade Cook from taking the lead in his
own defense. The judge told Cook that his two attorneys had “shown an ability to
cross-examine [witnesses] and ask appropriate questions”, and they had also
demonstrated the ability “to do those subtle things that make a jury tend to want to
believe [the defense view of things]”. The judge cautioned Cook that a defendant who
represents himself “starts off with a credibility problem, [regardless of] whether he’s
innocent or guilty, because the jury [perceives that] he’s got an interest in the case”.
Finally, Judge Torrisi told Cook that defense lawyers are trained to “do little things to
build credibility, to ask questions that chip away at the edge[s] [of the government’s
case] without necessarily calling somebody a liar, ... [to use] other little techniques that
are very difficult ... for a person [to do] for himself”. Judge Torrisi warned Cook that “if
you give that up, [you] are giving up a lot”.
Cook replied, “I feel like they’re helping me to lose ...; and if I’m going to lose, I
might as well do it by myself, on my own. If they were there to help me win, that would
be a different matter.”
Judge Torrisi then asked Cook:
The Court: So what would you have [your attorneys] do? You would have them
sit there, ... so you could ask them a question if you had [one], but otherwise you
would be your [own] lawyer?
Cook: Yeah.
At this point, Cook’s attorneys told Judge Torrisi that, based on their legal
research, such a procedure would not be possible unless Cook first validly waived his
right to counsel (because Cook would become, in effect, the lead counsel for the
defense).
After a few minutes’ more discussion about the trial strategies proposed by Cook
and his lawyers, and how these strategies were irreconcilable, Judge Torrisi summoned
the prosecutors to court so that Cook could publicly affirm his desire to represent
himself, with the assistance of advisory counsel. Cook was placed under oath, and the
following exchange occurred:
The Court: Mr. Cook, is it true that you want to represent yourself in this
proceeding?
Cook: Yes.... Well, let me rephrase that. I would like [to have] competent
counsel. But since I won’t be appointed competent counsel, then the next
alternative is to represent myself.
The Court [to the prosecutors]: [T]he defendant is contending ..., and [defense]
counsel agrees, that the trial strateg[ies] of counsel and Mr. Cook [differ by] 180
degrees at this point.
[To the defendant]: And that’s true, Mr. Cook, from your point of view?
Cook: That’s true; yes.
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The Court: The Court has told you in private, and I’ll tell you again, that it
appears to me [that] your counsel are competent [and] well-prepared, and [that
they] have investigated various possibilities. You have the right to have an
attorney. You [in fact] have two of them. And are you asking that they be
relegated to advisor status at this point?
Cook: Yes.
The Court: So that you would actually conduct the cross-examination of
witnesses and put on your own ... ?
Cook: Yes, because that’s the only way I can control what questions are being
asked. Because [my attorneys] are not going to do what I want them to do.
The Court: ... You’ve never done anything like this before, I take it?
Cook: No; it will be an experiment.
The Court: There are people who get through law school and still can’t do [what
you propose to do]. It’s not an easy skill to ask questions, especially to
cross-examine, do you understand [that]?
Cook: I imagine, yes.
The Court: ... As I [listened] to the cross-examinations that have been done [so far
in this trial], [I] could see little points get ticked away that-obviously, some
thought, some planning went into [them]. You haven’t been doing that thought;
you haven’t been [doing] that planning. And you don’t have experience in doing
it. It strikes [me] that you’re almost certainly going to make large mistakes. Do
you recognize that?
Cook: Yeah.
At this point, the prosecutors asked Judge Torrisi for a recess so that they could
consider the situation-in particular, so that they could assess the validity of Cook’s
waiver of counsel. Judge Torrisi granted the recess.
When the parties re-assembled in court approximately two hours later, Judge
Torrisi continued his questioning of Cook. Judge Torrisi reminded Cook that Cook had
no experience with criminal trials-in particular, no experience with filing legal motions
and no knowledge of the rules governing what evidence could be introduced at trial and
what evidence was prohibited. The judge warned Cook that these subjects were taught at
law school in semester-long courses, so Cook should not expect to learn them over the
next several days.
The judge also cautioned Cook that lawyers provide other benefits to their clients:
they can present a client in a favorable light, and argue the client’s side of the case,
without seeming to be self-serving; they can evaluate potential defenses; they can
negotiate on the client’s behalf without subjecting the client to the risk of
self-incrimination; they can prepare defense witnesses for their testimony in court; and
they know how to preserve an objection to trial court errors so that these errors can be
pursued on appeal. Cook told Judge Torrisi that he thought he understood all of this.
Judge Torrisi reminded Cook that he had the “absolute right” to appointed
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counsel, and the judge again expressed the opinion that Cook was making a mistake by
deciding to represent himself.
Finally, Judge Torrisi warned Cook that, in addition to the issues he had already
mentioned, there would be jury instructions to be drafted, and it was possible that
technical legal issues might arise as to what constituted a defense to the charge of
murder. Cook said that he understood this, and that his attorneys could advise him on
these matters. Judge Torrisi then asked again:
The Court: So ... you want ... to represent yourself and have [your current
attorneys] available for advice?
Cook: Yes.
The Court [to the defense attorneys]: And counsel, you’re willing to [perform]
that role?
Asst. Public Defender Davenport: Well, Your Honor, a purely consultative role is
the most that we would be willing to do. We would not participate in examining
witnesses, [or] making arguments to the court or to the jury.... [A]s far as
consulting, we’re willing to do that, but we’re not willing to share strategy or
participate in the trial unless we’re in charge.
The Court: You would give Mr. Cook your ideas, but not [interact with] counsel
and the court?
Davenport: He would have to implement [the] ideas that we give him. It would be
up to him to do it all.
The Court [to the defendant]: Well, I think it’s pretty clear that somebody has to
be the [lead] lawyer here, and it’s either the public defenders or it’s you. And
you’re asking that it be you, is that right, Mr. Cook?
Cook: Yes.
Based on the foregoing, Judge Torrisi found that Cook had made a knowing and
voluntary decision to represent himself-that is, a decision to assume personal
responsibility for selecting a trial strategy and for conducting the trial (the presentation of
both evidence and arguments), on the condition that the public defenders would remain
as his advisors.
On appeal, Cook argues that he never unequivocally expressed his desire to
represent himself or to undertake the lead role in the presentation of his defense. Cook
points out that, at least twice, he told Judge Torrisi that he had decided to represent
himself only because he was convinced that his two public defenders were incompetent
and because he could not get another court-appointed attorney to replace those public
defenders.
But Judge Torrisi repeatedly told Cook that he saw no evidence that Cook’s
public defenders were incompetent. And, in the absence of proof that Cook’s current
attorneys were incompetent, Cook had no right to demand another court-appointed
attorney.
Thus, Cook’s choices were to represent himself or to continue with his public
defender representation. Judge Torrisi engaged in thorough and repeated explanations of
the benefits of counsel and the disadvantages of representing oneself in criminal
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proceedings. The judge expressly told Cook that he thought Cook was making a mistake.
As shown by the above-quoted excerpts of the proceedings, Cook acknowledged that he
understood all of this, but he nevertheless persisted in his desire to assume the lead role
in his defense (provided that his public defenders remained available to give him advice).
Cook’s choice may have been “conditional” in the sense that he preferred another
alternative-the appointment of a new attorney at public expense to replace his public
defenders. But that alternative was not legally available to him. Within the range of
choices that were legally available, Cook’s decision was unequivocal. There was no
ambiguity in Cook’s waiver of his right to counsel.4
In his reply brief, Cook raises a new argument as to why his waiver of counsel
was invalid. Cook relies on a decision of the Ninth Circuit: United States v.
Kienenberger, 13 F.3d 1354 (9th Cir. 1993). Cook suggests that the Ninth Circuit’s
holding in Kienenberger means that a criminal defendant’s waiver of counsel is never
“unequivocal” for purposes of the Sixth Amendment if the defendant at the same time
requests the assistance of advisory counsel. See id. at 1356.
We do not reach the merits of this contention because it is raised for the first time
in Cook’s reply brief.
Finally, Cook contends that, even though he premised his waiver of counsel on
the expectation that he would receive advice from his public defenders throughout the
remainder of the trial, he never received any help from them.
Four days after he waived his right to counsel, Cook did indeed complain to Judge
Torrisi that his public defenders were giving him no advice. But the record indicates
otherwise.
At several points in the record, there are notations of “whispered conversations”.
Some of these whispered conversations are expressly linked to discussions between Cook
and his public defenders. Other whispered conversations occur in a context which
strongly suggests that Cook is consulting the public defenders.
For example, at page 1133 of the transcript, the prosecutor objects to one of
Cook’s questions. Following a whispered conversation, Cook rephrases the question.
The same thing happens later at pages 1607-08. Similarly, at page 1183, Cook objects to
the fact that the State has called his stepmother as a witness. Following a whispered
conversation, Cook rephrases his objection, now arguing that the State should be
prohibited from calling his stepmother until the State’s rebuttal case, because she is being
offered as a character witness.
Again, at page 1344, during a discussion of anticipated defense witnesses, Cook
tells Judge Torrisi that he (Cook) will let his public defenders announce who the defense
witnesses will be. When Judge Torrisi replies that Cook must do all of the talking for the
defense, a whispered conversation ensues, and then Cook announces the witnesses.
The discussion of jury instructions is replete with whispered conversations,
strongly suggesting that the public defenders are explaining to Cook how to argue the
various issues relating to the jury instructions. In fact, at page 1746, one of the public
defenders directly addresses the court to explain Cook’s objection to a jury instruction.
And, finally, we note that Cook asked Judge Torrisi to notify his public defenders
directly if the court received any questions from the jurors during their deliberations
(pages 1845-46 of the transcript).
In short, the record does not support Cook’s assertion that the public defenders sat
with him in the courtroom but declined to help him in any way.
For all of these reasons, we uphold Cook’s waiver of his right to counsel.
Cook v. State, No. A-7947, 2004 WL 719771, at *4-8 (citations omitted).
The right to counsel guaranteed by the Sixth Amendment “has been interpreted to
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encompass ‘an independent constitutional right’ of the accused to represent himself at trial, and
thus waive the right to counsel.” Stenson v. Lambert, 504 F.3d 873, 882 (9th Cir. 2007) (quoting
Faretta, 422 U.S. at 806). Such waiver, however, must be “knowing, voluntary, and intelligent.”
Iowa v. Tovar, 541 U.S. 77, 87-88 (2004). While no specific colloquy is required, Lopez v.
Thompson, 202 F.3d 1110, 1117 (9th Cir. 2000) (en banc), the Ninth Circuit has “gleaned a
three-factor test from Faretta, under which in order to deem a defendant’s Faretta waiver
knowing and intelligent, the district court must insure that he understands 1) the nature of the
charges against him, 2) the possible penalties, and 3) the dangers and disadvantages of self-
representation,” United States v. Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (citation and
internal quotation marks and brackets omitted). “The preferred procedure to ensure that a waiver
is knowingly and intelligently made is for the district court to discuss each of the three elements
with the defendant in open court,” although a trial court’s failure to do so “will not necessitate
automatic reversal when the record as a whole reveals a knowing and intelligent waiver.” United
States v. Balough, 820 F.2d 1485, 1488 (9th Cir. 1987).
In his Petition, Cook does not argue that his Faretta waiver was unknowingly made, and
the record provides no support for such assertion. Rather, he claims that his waiver was not
unequivocal because Cook twice told the trial judge that he decided to represent himself only
because he could not get another court-appointed attorney to replace his public defenders. But
“there is no authority for the proposition that [a defendant] is entitled to an absolutely
unconditional choice between exercising his right to counsel and his right to self-representation.”
United States v. Robinson, 913 F.2d 712, 715 (9th Cir. 1990). In Robinson, the Ninth Circuit
addressed a defendant’s argument on direct appeal of his conviction that he was coerced into
self-representation “as a result of . . . being faced with the implicit choice of retaining [an]
attorney . . ., with whom he had apparently had some tactical and strategy disagreements, and
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proceeding pro se.”5 Id. at 715-16. The Ninth Circuit concluded that “limitations on the range
of a defendant’s free choice with regard to appointed or retained counsel are not constitutionally
offensive and do not render a subsequent election of pro se status involuntary.” Id. at 716.
Here, Cook claimed that his attorneys were incompetent, and the Ninth Circuit has made
an exception in the case of incompetent counsel. See Schell v. Witek, 218 F.3d 1017, 1026 (9th
Cir. 2000) (reasoning that, where a defendant is left with the choice of only incompetent counsel,
he is “improperly left with no counsel at all”). In Schell, the Ninth Circuit remanded to the
5 The Sixth Amendment right to counsel guarantees to an accused the concomitant
rights to conflict-free representation and the effective assistance of counsel. See Wheat v. United
States, 486 U.S. 153, 156 (1988); Strickland v. Washington, 466 U.S. 668, 686 (1984). These
rights may be infringed if an accused and his counsel become embroiled in an “irreconcilable
conflict.” See Stenson v. Lambert, 504 F.3d 873, 886 (9th Cir. 2007) (“[F]orcing a defendant to
go to trial with an attorney with whom he has an irreconcilable conflict amounts to constructive
denial of the Sixth Amendment right to counsel.” (citing Brown v. Craven, 424 F.2d 1166, 1170
(9th Cir. 1970) (“[T]o compel one charged with [a] grievous crime to undergo a trial with the
assistance of an attorney with whom he has become embroiled in irreconcilable conflict is to
deprive him of the effective assistance of any counsel whatsoever.”)); see also Daniels v.
Woodford, 428 F.3d 1181, 1197 (9th Cir. 2005).
However, “not every conflict or disagreement between the defendant and counsel
implicates Sixth Amendment rights.” Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000) (en
banc) (citing Morris v. Slappy, 461 U.S. 1, 13-14 (1983)). The Sixth Amendment does not
require or guarantee, implicitly or otherwise, that an attorney-client relationship be “meaningful”
or free of discord. Morris, 461 U.S. at 13-14; see Plumlee v. Masto, 512 F.3d 1204, 1211 (9th
Cir. 2008) (en banc) (“[Petitioner] has cited no Supreme Court case—and we are not aware of
any—that stands for the proposition that the Sixth Amendment is violated when a defendant is
represented by a lawyer free of actual conflicts, but with whom the defendant refuses to
cooperate because of dislike or distrust.”). Rather, an asserted conflict crosses the constitutional
threshold “only where there is a complete breakdown in communication between the attorney
and client, and the breakdown prevents effective assistance of counsel.” Stenson, 504 F.3d at
886 (citing Schell, 218 F.3d at 1026); see also Daniels, 428 F.3d at 1197 (the nature and extent
of the conflict must be such as to “deprive[] the defendant of representation guaranteed by the
Sixth Amendment.” (citing Schell, 218 F.3d at 1027)). As the Court of Appeal noted, the record
“strongly suggests” that he had numerous discussions with his advisory attorneys through the
remainder of the trial and therefore belies any contention of a complete breakdown in
communication. Cook, 2004 WL 719771, at *8. Moreover, the record indicates that Cook
clashed with his attorneys primarily over litigation strategy. “Disagreements over strategical or
tactical decisions do not rise to level of a complete breakdown in communication.” Stenson, 504
F.3d at 886 (citing Schell, 218 F.3d at 1026).
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district court for an evidentiary hearing because “no court, either state or federal, ha[d] ever
adequately looked into the merits of the substance of [the petitioner’s] serious allegations.” Id.
at 1027. An evidentiary hearing is inappropriate here, however, because the record reflects that
the trial court allowed Cook an opportunity to address his concerns, and considered those
arguments before concluding that counsel was effective. The state court’s finding was
reasonable and fully consistent with the record. Thus, because Cook does not argue that the trial
court erred by failing to substitute counsel and, indeed, the record does not demonstrate such
error, Cook cannot show that the trial court’s limitation of counsel rendered his waiver of the
right to counsel involuntary.
Cook also claims that his waiver of the right to counsel was equivocal under the Ninth
Circuit authority of United States v. Kienenberger, 13 F.3d 1354, 1356 (9th Cir. 1994). In
Kienenberger, the appellant informed the court that he was dissatisfied with his second
appointed attorney and requested that he be allowed to represent himself with the assistance of
advisory counsel. Id. The Ninth Circuit held that a defendant does not have a constitutional
right “to represent himself and have access to ‘advisory’ or ‘consultative’ counsel at trial,” and
also concluded that because the appellant’s request to represent himself was accompanied by his
insistence that the court appoint advisory or standby counsel, “Kienenberger never relinquished
his right to be represented by counsel at trial.” Id. The Ninth Circuit found that Keinenberger
was not denied his constitutional right to represent himself because his waiver was equivocal.
Cook contends that, under this authority, a defendant who agrees to self-representation
only with the assistance of advisory counsel does not unequivocally waive his right to counsel
even where advisory counsel is appointed. But Cook points to no clearly established authority of
the U.S. Supreme Court that would directly compel such conclusion. In the absence of any
clearly established federal law on this issue, AEDPA relief is foreclosed. See Carey, 549 U.S. at
77. Moreover, it is illogical to conclude that a person who receives exactly what he
unequivocally requests (self-representation with the assistance on advisory counsel) nonetheless
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can never validly waive the right to counsel. For these reasons, Cook is not entitled to relief on
this ground either.
V. CONCLUSION AND ORDER
Cook is not entitled to relief on any ground raised in his Petition.
IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ
of Habeas Corpus is DENIED.
IT IS FURTHER ORDERED THAT the Court issues a Certificate of Appealability
with respect to Cook’s claim that the superior court’s error in refusing to set aside the default
judgment against him amounted to a deprivation of his Sixth Amendment right to choice of
counsel in his criminal case. See 28 U.S.C. § 2253(c); Banks v. Dretke, 540 U.S. 668, 705
(2004) (“To obtain a certificate of appealability, a prisoner must ‘demonstrat[e] that jurists of
reason could disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement to proceed
further.’” (quoting Miller-El, 537 U.S. at 327)). Any further request for a Certificate of
Appealability must be addressed to the Ninth Circuit Court of Appeals. See FED . R. APP . P.
22(b); 9TH CIR . R. 22-1.
The Clerk of the Court is to enter judgment accordingly.
Dated: December 13, 2018.
/s/ James K. Singleton, Jr.
JAMES K. SINGLETON, JR.
Senior United States District Judge
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