BITTAKER V. ENOMOTO, 587 F.2d 400 (1978), THE FEDERAL COURT RULING GUARANTEEING MANSON'S RIGHT TO SELF-REPRESENTATION
Lawrence S. BITTAKER,
J. J. ENOMOTO, Respondent-Appellant.
No. 75 3419.
United States Court of Appeals, Ninth Circuit.
Aug. 3, 1978.
Rehearing and Rehearing En Banc
Denied Dec. 6, 1978.
California prisoner sought habeas corpus relief. The United States District Court for the Central District of California, Robert J. Kelleher, J., granted relief, and the state appealed. The Court of Appeals, Goodwin, Circuit Judge, held that: (1) although petitioner was convicted four years prior to United States Supreme Court's Faretta decision confirming to state defendants the constitutional right of self-representation, denial of such right to petitioner required setting aside of his conviction, and (2) the harmless error doctrine was inapplicable since a denial of the right automatically prejudices a defendant's freedom interest.
1. Constitutional Law 268.1(5)
Although California defendant's trial occurred prior to United States Supreme Court's Faretta decision confirming to state defendants the constitutional right of self- representation, denial of the California defendant's right of self-representation was a federal constitutional defect requiring setting aside of his conviction. U.S.C.A.Const. Amend. 6.
2. Federal Courts 433
Federal courts must apply federal constitutional law in cases properly before them under the federal habeas statute.
3. Federal Courts 387
State interpretations of the Federal Constitution and laws are persuasive a thority but a district court may consider them on federal questions only if the question is otherwise open.
4. Criminal Law 1166.11
Harmless error doctrine does not apply to denials of right of self-representation; denial of the right automatically prejudices the defendant's freedom interest. U.S.C.A. Const. Amend. 6.
5. Federal Civil Procedure 2251
A federal court must make its decisions in accordance with the Constitution and the laws, without regard to notoriety of parties or nonparties.
6. Criminal Law 641.4(1)
Purpose of constitutional right of self- representation is to protect defendant's personal autonomy, not to promote the convenience or efficiency of trial. U.S.C.A.Const. Amend. 6.
Howard J. Schwab, Deputy Atty. Gen. (argued), Los Angeles, Cal., for respondent- appellant.
Jerome B. Falk, Jr. (argued) and Steven L. Mayer, San Franeisco, Cal., for petitioner-appellee.
Appeal from the United States District Court for the Central District of California.
Before MERRILL, GOODWIN and TANG, Circuit Judges.
GOODWIN, Circuit Judge:
 Lawrence S. Bittaker was convicted in a California court on a charge of burglary some four years before Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), confirmed to defendants in state prosecutions the constitutional right of self-representation earlier recognized in federal courts. Bittaker brought habeas corpus before Faretta. The district court held after Faretta that the state's denial of Bittaker's right of self-representation was a federal constitutional defect re- quiring the setting aside of his state conviction. The state appeals; we affirm.
While the parties have briefed and argued the case in terms of the "retroactivity" of Faretta, it is not necessary to reach that question because the law of this circuit at the time of Bittaker's state court trial had already been established in a fashion consistent with the Supreme Court's statement of the law in Faretta. Arnold v.United States, 414 F.2d 1056, 1058 (9th Cir. 1969), cerL denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970); Bayless v. United States, 381 F.2d 67, 71 (9th Cir. 1967). This circuit had stated in federal cases that seIf-representation was a corollary of the Siixth Amendment right to counsel. Because the defendant could waive his Sixth Amendment right, we said he could also insist on self-representation as a constitutional, as well as a statutory, right. Until now, we have had no occasion to apply the federal constitutional right to state habeas petitioners. The Second Circuit, however, had done so. United States ex rel Maldonado v. Denno, 348 F.2d 12, 15 (2d Cir. 1965). We avoided the question in Meeks v.Craven, 482 F.2d 465, 466 (9th Cir. 1973), because the petitioner's assertion of the right was inadequate.
There can be little doubt, however, that, if squarely faced with the issue, we would have applied the right to self-representation to a state habeas petitioner.
[2, 3] We had already characterized the right as a constitutional one in Arnold v. United States, 414 F.2d at 1068. The Supreme Court had previously applied virtually the entire Sixth Amendment to the states. Duncan v. Louisiana, 391 U.S. 145, 148, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968); Gideon v. Wainwright, 372 U.S. 335, 83 2 S.Ct. 792, 9 L.Ed.2d 799 (1963). Accordingly there was no obvious reason to refuse to apply the implied Sixth Amendment right to self-representation as well.1 We therefore agree with the district court that Bit- taker would have been entitled to habeas relief had he sought it under the pre-Faretta law of this circuit.
The state emphasizes that Faretta has a somewhat different conceptual basis from our prior holdings. The Supreme Court held that the right to self-representation is implied in the structure of the Sixth Amendment. We had expressed it as a counterpart to the right to counsel. According to the state, the conceptual distinction makes our previous cases irrelevant. We disagree. BeforeFaretta a state defendant in this circuit had a federal constitutional right to self-representation. After Faretta the right was the same, whether or not its rationale was expressed in the same terms. The state would have us tell Bittaker that even though he had the same right before Faretta as prisoners in other circuits have since, we must refuse relief because the Supreme Court used different words than we had used in justifying that right. We will not engage in such a verbal minuet.
[4-6] Finally, the state argues that we should apply the harmless-error doctrine to denials of the right of self-representation.2 Again, we disagree.
Before Faretta we had held that the defendant need not show prejudice resulting from the denial of the right. United States v. Price, 474 F.2d 1223,1227 (9th Cir. 1973). The Supreme Court vacated the judgment in Faretta without considering possible prejudice to the defendant. 422 U.S. at 836, 95 S.Ct. 2525. Indeed, it noted that in most cases a defendant's case will suffer if he or she asserts the right. 422 U.S. at 834, 95 S.Ct. 2525. Some defendants may be able to show prejudice from the assistance of unwanted counsel, but we will not speculate on the volume of such cases. To require such a showing could make the right to conduct one's own defense virtually unenforceable on appeal in the majority of cases.
The purpose of the right is to protect the defendant's personal autonomy, not to promote the convenience or efficiency of the trial. 492 U.S. at 834, 95 S.Ct. 2525. Thus, a denial of the right automatically prejudices the defendant's freedom interest. More is unnecessary. We do not reach other arguments urged in support of the judgment below.
l 1. Before Faretta, California courts denied that there was such a right. People v. Sharp, 7 Cal.3d 448, 103 Cal.Rptr. 233, 499 P.2d 489, cert. denied 410 U.S. 944, 93 X.Ct. 1380, 35 L.Ed.2d 610 (1973). A district court used this fact to deny habeas relief in Houston v. Nelson, 404 F.Supp. 1108, 1115 (C.D.Cal.1975). The district court noted that before Faretta the Ninth Circuit and California had different rules, and it therefore applied the California standard to a state habeas petitioner. This decision was never reviewed by this court. Federal courts must apply federal constitutional law in cases properly before them under the federal habeas statute. Sesser v. Gunn, 529 F.2d 932, 934-35 (9th Cir. 1976). It is thus a district court's duty to apply the law of the appropriate circuit to all persons presenting claims within its jurisdiction. State interpretations of the federal constitution and laws are persuasive authonty. but a district court may consider them on federal questions only if the question is otherwise open.
2. The state mentions several times that one of its prisoners who may benefit from the Faretta decision is Charles Manson. We do not encourage this type of advocacy. A federal court must make its decisions in accord with the Constitution and the laws, without regard to the notoriety of parties or nonparties.