894 F.3d 1076

HAWKINS, Circuit Judge, dissenting:
If this habeas petition were not governed by the AEDPA regime and Supreme Court authority as to when the relief requested here could or could not be granted, I might well agree with my colleagues. However, 28 U.S.C. § 2254(d) bars relief on a claim adjudicated on the merits in state court unless that court's decision was contrary to federal law then clearly established in Supreme Court holdings or involved an unreasonable application of such law, or was based on an unreasonable determination of the facts in light of the record before the state court. Harrington v. Richter , 562 U.S. 86, 98-100, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
This court must first determine what constitutes "clearly established Federal law, as determined by the Supreme Court of the United States." Lockyer v. Andrade , 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). In analyzing claims, we are limited to the holdings, as opposed to the dicta, of Supreme Court cases that existed at the time the state court issued its ruling. Id. ; Howes v. Fields , 565 U.S. 499, 505, 132 S.Ct. 1181, 182 L.Ed.2d 17 (2012). However, we may not issue the writ simply because we conclude that the relevant state court decision applied the law erroneously or incorrectly. Lockyer , 538 U.S. at 75-76, 123 S.Ct. 1166. A state court decision precludes federal habeas relief so long as "fairminded jurists could disagree" as to the correctness of the state court's decision. Harrington , 562 U.S. at 101, 131 S.Ct. 770.
The majority first concludes the state court made an unreasonable factual finding that Morris was substituted as counsel for Tamplin. Although the original minute order is not a picture of clarity, as it both checks a box indicating that Morris was subbed in and also appears to state he was granted a continuance on "motion to file a sub into case," the next two orders entered by the court on June 30 and July 8 reflect Morris as the defense counsel of record and all parties, including Tamplin, proceeded as though Tamplin were represented by counsel (Morris) and that if Tamplin wished to change his mind, a new Faretta request would be necessary. So, too, do I.
The majority further concludes the California state courts unreasonably applied Faretta and thus violated his due process right to represent himself by denying the renewed request. 422 U.S. at 819, 95 S.Ct. 2525 ; see Adams v. Carroll , 875 F.2d 1441, 1444 (9th Cir. 1989) ("The Sixth Amendment's guarantee of assistance of counsel is unusual among constitutional rights in that it is also implicitly a guarantee of its opposite, the right to refuse counsel."). I am not convinced the issue is so clearcut, nor that the state court decision was objectively unreasonable under the circumstances.
Here, the state trial court gave two reasons for declining to grant Tamplin's second request to represent himself: (1) the timing of the request, given its proximity to the scheduled trial date, and (2) that Tamplin had not been unequivocal, having appeared only a week or so earlier with a privately-hired attorney whom he indicated he had hired for assistance with matters he could not handle personally, especially dealing with rules of the court. On consideration of the state habeas petition, and contrary to the majority's interpretation of the record, the state habeas court fully agreed with the trial court's assessment and reasoning, including the need to assert the right within a reasonable time before the commencement of trial , but also specifically elaborated that Tamplin's attempted hiring of attorney Morris shortly before the request indicated he was not unequivocal in the desire to represent himself, but appeared to be searching for a compatible attorney.
Under AEDPA, we may look only to Supreme Court decisions to determine what constitutes "clearly established federal law." Murray v. Schriro , 745 F.3d 984, 997 (9th Cir. 2014) ("Our precedent cannot be mistaken for clearly established Supreme Court law."). Faretta itself offers no guidance on the equivocal issue, nor does any Supreme Court precedent since it was decided. And this court has also explained that although Faretta "clearly established some timing element," the "precise contours of that element" are unknown and "[a]t most, we know that Faretta requests made 'weeks before trials' are timely." Marshall v. Taylor , 395 F.3d 1058, 1061 (9th Cir. 2005).
In light of the record as a whole, I cannot say that the California state court's decision was an unreasonable application of Faretta . The timing of the renewed request was very close to trial and Tamplin admitted he could not be ready in time for the scheduled trial date. As this court has noted, " Faretta does not articulate a specific time frame pursuant to which a claim for self-representation qualifies as timely." Stenson v. Lambert , 504 F.3d 873, 884 (9th Cir. 2007). Moreover, Tamplin's attempt to hire counsel shortly before trial, and for the acknowledged purpose of helping him with matters he did not feel he could personally handle, such as complying with rules of court, definitely calls into question the unequivocal nature of his request. See id. at 882-83 (Washington Supreme Court determination that petitioner's request was equivocal in light of the record as a whole was not objectively unreasonable). Although Tamplin was perhaps "unequivocal" after the point in time that he made his renewed request to represent himself, Faretta certainly does not preclude the trial court's consideration of the entire record, nor offer any guidance whatsoever on what might constitute equivocation by a defendant, since the defendant in Faretta never wavered in his desire to represent himself in the way Tamplin did here.
In sum, I cannot find a holding of the Supreme Court that clearly requires relief under the circumstances present here, and its most recent pronouncements suggest otherwise. See Kernan v. Cuero , --- U.S. ----, 138 S.Ct. 4, 8, 199 L.Ed.2d 236 (2017). In Kernan , the Supreme Court recently made clear that AEDPA does not permit: (1) granting relief where fairminded jurists could disagree with the reading of Supreme Court precedent, or (2) ordering relief when there was no Supreme Court decision clearly entitling the defendant to the relief he seeks, or (3) relying on circuit precedent, state court decisions, treatises, law review articles, or anything beyond established Supreme Court precedent for AEDPA purposes. Id . at 9. Cognizant of these parameters, I find it is at least debatable under Faretta whether Tamplin's renewed request was sufficiently timely and whether he was truly unequivocal in desiring to represent himself. Thus, in my opinion, Tamplin has not established that the state court's decision was "in direct and irreconcilable conflict with Supreme Court precedent," Murray , 745 F.3d at 997, nor has he shown that the state court ruling applying Faretta "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington , 562 U.S. at 103, 131 S.Ct. 770. I would affirm the district court's denial of the petition.
The state habeas court cites both federal and state law regarding the timeliness of the motion, described both of the trial court's reasons for denying the request, including that "timeliness is a substantial factor" and then concluded that "under these circumstances, " the right to self-representation had not been violated. I view this as fully incorporating the trial court's reasoning and then elaborating further on its own. The habeas court also offered a third reason for denying Tamplin's petition, in that he did not subsequently renew his request to represent himself. I do not address the validity of this additional "acquiescence" reasoning because, as discussed below, I believe the first two reasons sufficient to uphold the ruling.
I acknowledge that in an older case, Moore v. Calderon , 108 F.3d 261, 264 (9th Cir. 1997), this court, applying pre-AEDPA standards, held that a state court denial of a defendant's motion to represent himself made two weeks and two days before scheduled trial was timely and granted the writ. In dicta, the court further suggested the result would be the same if the then-new AEDPA standards applied to the case, id . at 263-64, although Ninth Circuit law at the time clearly held they did not, Jeffries v. Wood , 103 F.3d 827 (9th Cir. 1996) (en banc), a holding subsequently confirmed by the Supreme Court in Lindh v. Murphy , 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). I would not follow Moore' s dicta, and instead focus on subsequent cases actually governed by the AEDPA standard which have stated that Faretta "clearly established" no more than that requests made "weeks before trial" are timely. See Stenson , 504 F.3d at 884.
The majority points out that a footnote in Faretta indicates he attempted on three occasions to have the trial court appoint and pay for private counsel for him. 422 U.S. at 808 n.5, 95 S.Ct. 2525. The significance of this fact is not discussed in the opinion. However, trying to get the court to pay for counsel of choice is still a step removed from what Tamplin did here-actually hiring such counsel and appearing in court with him shortly before trial, representing to the trial judge that he now desired such representation rather than continuing on pro se.

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