Nicole BRADLEY, Petitioner-Appellant, v. Gloria HENRY, Warden, Respondent-Appellee, 510 F.3d 1093

Opinion by Judge NOONAN; Concurrence by Judge CLIFTON; Dissent by Judge SILVERMAN. NOONAN, Circuit Judge: The appeal in this habeas corpus case is not directed to the guilt or innocence of the petitioner. The question we must address is whether a decision of a California Court of Appeal was not merely erroneous but objectively unreasonable in its application of the Constitution of the United States as the meaning of the Constitution was determined, at the time of the decision of the California court, by the Supreme Court of the United States.

We summarize the underlying criminal case and proceed to consideration of three instances in which the petitioner claims that such unreasonable applications of the Sixth Amendment took place. The underlying ease. On January 17, 1996, Bradley, 18 years-old at the time, was involved in an apparent carjacking in the course of which the driver of the car was killed. On January 22, 1996, she was taken into custody. The case went to trial before a jury in March 1999. The prosecution’s case was that Bradley had killed in the course of a felony.

Her two juvenile accomplices testified against her, as did a police officer, to whom petitioner had made admissions. No one testified that she had deliberately shot the driver. The shooting appeared to be unintentional. But it was the cause of death during the commission of the carjacking, a felony the witnesses blamed on Bradley. She did not testify in her own defense. She was found guilty of murder in the first degree (Cal. Pen.Code § 187(a) ), attempted carjacking (Cal. Pen. Code §§ 66k, 215(a)), and possession of a short-barreled shotgun (Cal. Pen.Code § 12020(a)(1)).

She received a sentence of thirty-five years to life in prison. On April 20, 2002, petitioner’s conviction was affirmed by a court of appeal. On July 10, 2002, the Supreme Court of California summarily denied review. On June 30, 2003, petitioner filed the present petition for habeas corpus. The petition was denied by the district court, leading to the present appeal. The withdrawal of petitioner’s counsel and replacement by appointed counsel. On March 4, 1998, the judge then in charge of the case had a conference in his chambers.

Present were the district attorney of Sonoma County, the deputy district attorney who was prosecuting the case, and an investigator from the district attorney’s office. Also present was Cynthia M. Dunlevy, retained for the defense, and two lawyers who had no apparent connection with the case. By order of the judge, the record of what happened was sealed until the conclusion of the trial. The petitioner was not present.

This conference was about two concerns: Dunlevy’s desire to withdraw as counsel because of serious conflicts with her client, including inadequate payment for defense services; and the prosecutor’s fear of foul play on the part of the defendant’s father. The presence of the two lawyers new to the case, Andrian and his partner, Gallen-son, was explained by the fact that the judge, apparently already alerted to Dun-levy’s desire to withdraw, had approached them about being appointed to represent the petitioner.

The reason for combining the substitution of counsel with airing of the danger felt by the prosecutor was not explained except by the prosecutor’s sense that the petitioner’s father, who was paying for the defense, would go to lengths to delay trial. The conference concluded with the judge agreeing to let Dunlevy and her partner withdraw and to put Andrian in their place, not as retained counsel but as appointed counsel to be compensated by the county. The conferees moved from the judge’s chambers to court.

Present, in addition to the judge, were Dunlevy, Andrian, the prosecutor, the petitioner, and a lawyer she had chosen to represent her. The judge accepted Dunlevy’s motion to withdraw. The judge appointed Andrian in her stead. Dunlevy told the court that the petitioner would like Patrick Hutchinson, the lawyer that she had brought with her to court, to speak on her behalf. The prosecutor objected. The court upheld the objection. The sequel. On October 19, 1998, the petitioner moved to replace Andrian.

He stated that there was a conflict between him and his client; that she had filed a complaint against him with the State Bar; that she had threatened to sue him personally; and that his insurance carrier required him to stop communicating with her. A judge, new to the case, suggested that the insurance problem could be resolved. He ruled that Andrian was not rendering inadequate or ineffective assistance. He continued the case, and six weeks later Andrian’s need for insurance was resolved by the county agreeing to indemnify him. The petitioner’s proposal of new retained counsel.

On January 7, 1999, the petitioner moved to substitute retained counsel, Jonathan Jordan, for appointed counsel Andrian. On January 19, 1999, the trial judge held a hearing on this motion. The judge expressed concern about delays by what he said almost amounted to “lawyer-churning.” He also expressed concern about the payment of Jordan. Jordan assured him that he would be ready by the date appointed for trial and was satisfied as to the arrangements for his compensation. The judge denied the petitioner’s motion to substitute Jordan for Andrian.

The judge also rejected Jordan’s suggestion that he become associate counsel with Andrian. ANALYSIS The Sixth Amendment to the Constitution of the United States provides that “In all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” U.S. Const, amend. VI. This bedrock principle of constitutional law has recently been restated by the United States Supreme Court in these words: We have previously held that an element of this right is the right of a defendant who does not require appointed counsel to choose who will represent him. See Wheat v.

United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). Cf. Powell v. Alabama, 287 U.S. 45, 53, 53 S.Ct. 55, 77 L.Ed. 158 (1932) (“It is hardly necessary to say that, the right to counsel being conceded, a defendant should be afforded a fair opportunity to secure counsel of his own choice”). United States v. Gonzalez-Lopez, 548 U.S. 140, 126 S.Ct. 2557, 2561, 165 L.Ed.2d 409 (2006). It is conceded by petitioner that the right is not absolute. What is disputed is whether the California Court of Appeal’s application of the governing principle is objectively unreasonable.

As the principle is of general application, it is “a rule designed for the specific purpose of evaluating a myriad of factual contexts.” Wright v. West, 505 U.S. 277, 309, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (Kennedy, J., concurring). “[S]o of course there will be variations from case to case.” Id. The new application is not “a new rule, one not dictated by precedent.” Id.

Three arguments are advanced why the application of principle here was not objectively unreasonable: (1) that the trial had been inordinately delayed by petitioner’s changes of counsel; (2) that petitioner was not in a position to afford retained counsel; and (3) that any error in denying her counsel of her choice was harmless. We consider these contentions in turn. 1. Inordinate delay. Inspection of the docket shows that the following judges of the Superior Court held hearings or made rulings in the case: January 22&emdash;July 18, The Honorable F. Passalacqua 1996 August 15,1996 The Honorable R.

Jamar August 30&emdash;October 18,1996 The Honorable R. Giordano November 1,1996 The Honorable L. Antolini December 13,1996 The Honorable E. Watters January 17,1997 The Honorable R. Giordano February 28,1997&emdash; April 13,1998 The Honorable M. Tansil July 10,1998&emdash;March 4,1999 The Honorable K. Owen As far as the record before us shows, these were the principal delays and their causes: On March 15,1996, within two months of petitioner’s arrest and before any indictment, the prosecutor pointed to a conflict of interest on the part of petitioner’s counsel. Judge Passalacqua ordered his disqualification.

No apparent delay resulted. On October 18, 1996, two months after Bradley’s indictment on multiple charges including murder in the first degree with special circumstances, she moved to substitute counsel. Judge Passalacqua granted her motion. At the time no trial date appears to have been set. On December 13, 1996, the date was set for April 14, 1997. On February 28,1997, Judge Tansil took over the case and changed the trial date to July 18,1997 “for calendar control.” On July 3, 1997, for no reason apparent to us, Judge Tansil put off the trial date seven months to March 2,1998.

On November 21, 1997, Judge Tansil granted Bradley’s motion to replace her counsel; announced “this will be the last change in counsel;” and postponed the trial date one month to March 30,1998. On March 4, 1998, Judge Tansil permitted Bradley’s counsel to withdraw and appointed Andrian. On April 13,1998, Judge Tansil moved the trial date to October 26, 1998. On October 19, 1998, Bradley moved to disqualify Andrian. She also indicated her intention to sue him. Andrian explained that his malpractice insurance carrier required him to stop communicating with Bradley upon receiving notice of her intent to sue.

Judge Owen postponed the trial date so that Andrian could work out his problem, resolved only by his agreement with the county to indemnify him on December 16, 1998. The trial was eventually reset for February 22,1999. For reasons not apparent in the record before us, the trial did not take place until March 1999.

SUMMARY Date Cause of Delay Time Lost 3/15/96 Disqualification by the court None apparent of counsel for conflict of interest 10/18/96 Change of counsel on None apparent Bradley’s motion 2/28/97 Calendar control by the 3 months court 7/3/97 Trial date reset by court 7 months 11/12/97 Court grants Bradley’s 1 month motion to substitute counsel 3/4/98 Court permits Bradley’s 7 months counsel to withdraw and appoints counsel 10/14/98 Court gives Andrian time to 4 months get malpractice coverage from the county In

summary, 21 months of delay resulted from actions of the court, one month from Bradley’s request to change counsel. To excuse the denial of counsel of choice because of delays largely produced by the court itself is objectively unreasonable. 2. Inability to afford counsel. In the initial substitution of appointed counsel for retained counsel, petitioner was given no chance to contest the conclusion, apparently reached by the judge even prior to the in-camera proceeding, that she could not pay. Due process does not permit a judge to decide such a question without hearing the affected party.

Audi alteram partem&emdash;hear the other side&emdash;is what makes the legal process work in an adversary system. “[T]he right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” Gonzalez-Lopez, 126 S.Ct. at 2565. But a court could not assume that because petitioner was under twenty-one and her father had been difficult that she had no way of paying for counsel. Decide first, defend later is not an axiom of constitutional law. To deny assistance of counsel on account of the impecuniousness of the defendant required a hearing to explore the case.

The disregard of petitioner’s right was the more egregious in that Dunlevy informed the judge that Bradley “would be objecting to my being relieved” and that Bradley had retained Hutchinson to represent her on that issue. The judge did not hear Bradley or her representative. The judge capped his conduct by concealing from her the record of the closed in-camera proceeding from which she had been excluded.

To assert, as the California Court of Appeal asserted, that petitioner did not lack counsel because Dunlevy, the lawyer seeking to get out, and Andrian, the lawyer seeking to get in, were looking out for her interests, is objectively unreasonable. Neither was in a position to represent her. A lawyer is not someone “concerned” with the interest of a defendant. A lawyer is the person speaking for and in the name of the client. Andrian was appointed and continued in the case as the direct consequence of this unconstitutional proceeding. Harmful error.

We look at the Court of Appeal’s application of the test of harmless error to what that court properly conceded might be constitutional error. Applying Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), we consider whether the deprivation of the assistance of counsel was harmful to petitioner. The state relies on Morris v. Slappy, 461 U.S. 1, 13, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (the right to a “meaningful attorney-client relationship” is “without basis in the law”).

No doubt it is difficult to determine when such a relationship exists, so it is hard to use as a standard for measuring whether the right to assistance of counsel has been denied. It can be determined, however, that a relationship in which client sues lawyer and lawyer does not speak to client has broken down. Such was the situation here in December 1998, a month before trial was scheduled. The lawyer spoke to his client when the county insured him against liability, creating a singular dependence of defense counsel on an agency associated with the prosecution.

This restored communication led to Andrian’s proposal of an insanity defense unacceptable to his client. On such key questions as to whether he should pursue a plea bargain or whether she should take the stand at trial, she had a lawyer that she was still rejecting in January 1999 and seeking to replace with retained counsel. By any measure, an adversary relationship had replaced a lawyer-client relationship. It was objectively unreasonable to find no harm in Andrian’s continuation and in the denial of Jordan’s offered assistance.

Summary. The in-camera hearing without petitioner present denied her right to the assistance of counsel, an error confirmed and compounded by the court’s refusal to let petitioner address the issue in open court. The harmful sequel to this first error of constitutional magnitude was the court’s constitutional error in refusing to replace Andrian when the attorney-client relationship between him and petitioner had broken down.

This error led to the third denial of the right to assistance of counsel: the court’s refusal to have Andrian be replaced or assisted by Jordan, with the resultant injury to the petitioner’s defense at trial. For the reasons stated, the judgment of the district court is REVERSED and the case is REMANDED for proceedings in accordance with this opinion.