NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 8 2024
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DOMONIC RONALDO MALONE,                         No.    22-16671

                Petitioner-Appellee,            D.C. No.
                                                2:18-cv-01146-RFB-NJK
 v.

BRIAN WILLIAMS, Warden; ATTORNEY                MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellants.

                   Appeal from the United States District Court
                            for the District of Nevada
                 Richard F. Boulware II, District Judge, Presiding

                      Argued and Submitted October 5, 2023
                               Las Vegas, Nevada

Before: RAWLINSON and OWENS, Circuit Judges, and PREGERSON,** District
Judge.
Concurrence by Judge RAWLINSON; Dissent by Judge OWENS.

      Respondents-Appellants appeal the district court’s grant of habeas relief to

Petitioner-Appellee Domonic Ronaldo Malone (“Malone”) pursuant to 28 U.S.C.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
§ 2254(d)(2). We have jurisdiction pursuant to 

 and 2253(a).

We may only grant relief if the Nevada Supreme Court’s decision was (1)

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court,” or (2) “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28. U.S.C. § 2254(d); see also Harrington v. Richter, 

 (2011). Having reviewed the district court’s grant of habeas relief de

novo, Wilkinson v. Gingrich, 

 (9th Cir. 2015), we agree with the

district court that habeas relief is warranted under § 2254(d)(2), and affirm.1

      The Supreme Court has long recognized the “nearly universal conviction, on

the part of our people as well as our courts, that forcing a lawyer upon an unwilling

defendant is contrary to his basic right to defend himself if he truly wants to do

so.” Faretta v. California, 

 (1975). “[A]lthough [a defendant]



1
   We have frequently treated the equivocality of an invocation of the right to self-
representation as a question of fact. See, e.g., United States v. Audette, 

 (9th Cir. 2019); United States v. Kienenberger, 

(9th Cir. 1994). Accordingly, we have analyzed § 2254 habeas cases raising similar
issues under § 2254(d)(2). See Stenson v. Lambert, 

 (9th
Cir. 2007). We need not determine whether 28. U.S.C. § 2254(e)(1) applies to this
matter, as “it is difficult to imagine a case in which a court would find that a state
court decision was ‘an unreasonable determination of the facts,’ but that the
petitioner had not rebutted the “presumption of correctness by clear and convincing
evidence.” Apelt v. Ryan, 

, 837 n.23 (9th Cir. 2017); see also Murray
v. Schriro, 

 (9th Cir. 2014).


                                          2
may conduct his own defense ultimately to his own detriment, his choice must be

honored out of that respect for the individual which is the lifeblood of the law.” Id.

at 834 (internal quotation marks omitted). A defendant’s request to proceed

without counsel must be unequivocal. Adams v. Carroll, 

 (9th

Cir. 1989). Periodic vacillations, however, will not “taint” later unequivocal

waivers of counsel. United States v. Audette, 

 (9th Cir.

2019). Moreover, even a conditional waiver of counsel can be unequivocal.

United States v. Mendez-Sanchez, 

 (9th Cir. 2009) (“A

conditional waiver can be stated unequivocally, as for example when a defendant

says in substance: ‘If I do not get new counsel, I want to represent myself.’ There

is a condition, but the demand is unequivocal.”).

      Here, following numerous prior discussions and attempts by Petitioner to

dismiss his appointed counsel, the trial court found that Petitioner knowingly and

voluntarily waived his right to counsel in January 2010, and granted Petitioner self-

represented status. Over the following eighteen months, Petitioner reaffirmed at

least nine times, both orally and in writing, his continued desire to represent

himself rather than accept the representation of his former counsel. On some of

those occasions, Petitioner expressed a conditional desire to represent himself,

explaining, for example, that “I try many times to get other attorneys, but I was

denied . . . . So, therefore, the only option that I have is [self-representation].”


                                           3
Similarly, when asked on one of numerous occasions whether he wanted a lawyer,

Malone responded, “I did. Not the ones I got now. No sir.”

      Many of Petitioners’ affirmations were far more strident. Petitioner agreed

with the trial court, for example, that he was “hellbent” on representing himself,

accused the trial court of trying to “overwhelm” him in hopes of forcing him to

“somehow see the light and allow [former counsel] to lead him like cattle to the

slaughter,” and wrote that he was “more than ready and willing to fight to the point

of death” rather than accept prior counsel. Indeed, Petitioner informed the trial

court that he believed that appointed counsel “were trying to help the State murder

me,” and that his family would not cooperate with them.2

      Apparently exasperated by Malone’s repeated claims that he was forced into

self-representation by the trial court’s refusal to appoint different counsel, the trial

court mischaracterized Petitioner’s written memorandum as stating that Petitioner

“did not want to represent [himself],” and revoked Petitioner’s self-represented

status on that basis, stating to Petitioner, “Your wish is granted,” and cutting off

any further discussion. As we have repeatedly explained, however, “[t]he fact that


2
  Unfortunately, the trial court never held an in camera hearing or otherwise
attempted to discern the full nature and extent of Petitioner’s conflict with counsel.
As early as 2009, Petitioner complained that his appointed counsel had
misrepresented him, withheld certain discovery, and “used racist remarks.”
Although the trial court did make repeated inquiries into discovery issues, it did so
only in open court, and never gave Petitioner any opportunity to discuss the
specifics of his objections outside the presence of the prosecution.

                                            4
some of [the defendant’s] statements of his preference to proceed pro se were

accompanied by expressions of his feeling ‘forced’ to do so does not render those

statements equivocal.” United States v. Robinson, 

 (9th Cir.

1990); see also Tamplin v. Muniz, 

 (9th Cir. 2018) (discussing

Faretta, 

); United States v. Allen, 

 (9th

Cir. 1998); Adams, 

.

      While Respondents-Appellants point to certain of Malone’s conditional

statements in isolation as evidence of equivocation, we must look to the entire

record as a whole. United States v. Hantzis, 

 (9th Cir. 2010); see

also Stevens v. Davis, 

, 1159 n.11 (9th Cir. 2022); Burton v. Davis,

 (9th Cir. 2016); Stenson v. Lambert, 

(9th Cir. 2007). Although we have rarely addressed the equivocality of a Faretta

waiver in the AEDPA context, we did so in both Stenson and Tamplin. See

Stenson, 

; Tamplin, 

. In Stenson, we found a

Faretta waiver equivocal where the defendant failed to persistently or

“consistently [] maintain his desire to represent himself.” Stenson, 

. That clearly was not the situation here, where Malone repeatedly and

insistently stated, even if conditionally, that he wanted to represent himself.

Indeed, Malone’s efforts here far outstripped those of the defendant in Tamplin,

where, reversing the district court’s denial of habeas relief, we observed that the


                                          5
defendant’s statements in two hearings one week apart “read[] like an exercise in

how many ways a defendant can say that he wants to represent himself.” Tamplin,

.3

      Having reviewed the entire record, we agree with the district court that

“Malone was not equivocal about his desire to represent himself rather than have

[appointed counsel] represent him. . . . Malone never wavered from that position

after he was granted leave to represent himself. While Malone’s request to

represent himself was conditional in that he might have accepted different counsel,

it was not equivocal because he was clear if [appointed counsel] was his only

option for appointed counsel then he would represent himself.” We further agree

with the district court that “it is beyond any reasonable argument that Malone . . .

felt forced to represent himself because the [trial] court denied his request for

[other] counsel,” and that the Nevada Supreme Court’s determination that

Malone’s Faretta waiver was equivocal was therefore based on an unreasonable

determination of the facts.

AFFIRMED.


3
  Malone never “asked for his attorneys back, and then changed his mind.”
Dissent at 2-3. Rather, Malone stated, “I did would like to have my counsel back,”
and made the “at this point in time” comment as part of his explanation that he
might have wanted counsel back at some point in the past, had they not caused
unnecessary delays. Moreover, Malone’s statements were prompted by the trial
court’s question, stated in open court, “It probably would have been a good idea to
have an attorney, wouldn’t it[?]”

                                           6
                                                         FILED
Malone v. Williams, Case No. 22-16671
                                                          JAN 8 2024
Rawlinson, Circuit Judge, concurring in the result:
                                                      MOLLY C. DWYER, CLERK
                                                       U.S. COURT OF APPEALS
      I concur in the result.




                                      1
                                                                           FILED
Malone v. Williams, No. 22-16671                                            JAN 8 2024
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
OWENS, Circuit Judge, dissenting:

      I respectfully dissent from the majority disposition. I cannot say Malone

met the AEDPA standard. In formulating AEDPA, “Congress wished . . . to give

effect to state court convictions to the extent possible under law.” Williams v.

Taylor, 

 (2000). To satisfy the “extremely deferential” AEDPA

standard, McDermott v. Johnson, 

 (9th Cir. 2023), a state prisoner

“must show that the state court’s ruling . . . was so lacking in justification that there

was an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement,” Harrington v. Richter, 

(2011). “A state court’s factual determination . . . is not unreasonable simply

because we would have reached a different conclusion.” Ybarra v. Gittere, 

 (9th Cir. 2023).

      The majority concludes that the Nevada Supreme Court made an

unreasonable determination of the facts under 

(d)(2) when it held

that Malone’s request for self-representation was equivocal. Majority Disposition

at 2. But every case the majority relies on for its conclusion, except one, was

decided either under the pre-AEDPA standard or outside the habeas context

entirely. See United States v. Audette, 

 (9th Cir. 2019) (not habeas);

Burton v. Davis, 

 (9th Cir. 2016) (pre-AEDPA habeas); United


                                           1
States v. Hantzis, 

 (9th Cir. 2010) (not habeas); United States v.

Mendez-Sanchez, 

 (9th Cir. 2009) (not habeas); United States v. Allen,

 (9th Cir. 1998) (not habeas or Faretta); United States v. Robinson,

 (9th Cir. 1990) (not habeas); Adams v. Carroll, 

 (9th

Cir. 1989) (pre-AEDPA habeas). In those cases, the petitioner’s burden was

different; he had to demonstrate he was entitled to habeas under a less deferential

standard or merely that his request for self-representation was unequivocal. Our

role in those cases was different too; we were free to weigh the factual record

without the burden of deference under AEDPA. See Stevens v. Davis, 

 (9th Cir. 2022) (“Our role on federal habeas review is ‘to guard against

extreme malfunctions . . . not to apply de novo review of factual findings’”

(citation omitted)).

      The sole AEDPA case the majority relies on is distinguishable. In Tamplin

v. Muniz, 

 (9th Cir. 2018), we granted habeas relief because

the defendant never vacillated; his attempt to hire a private attorney was consistent

with his position that he did not want a public defender. By contrast, the facts here

are directly analogous to Stenson v. Lambert, 

 (9th Cir. 2007),

where we denied relief because “all of Stenson’s requests for self-representation

were concessions that he really did not want to represent himself, but that he felt

the court . . . [was] forcing him to do so.” Here, Malone, unprompted, asked for


                                          2
his attorneys back, and then changed his mind. He couched his requests with the

phrase “at this point in time,” even when the court directed him to answer with a

simple “yes” or “no,” implying that his position was subject to change. He told the

court it was “denying [him] the right to . . . representation” by not appointing

standby counsel that he approved of. He said he wanted a lawyer, but “[n]ot the

ones I got now” and self-representation “wasn’t technically [his] choice.” Stenson

court denied relief not because it necessarily agreed with the state court’s

conclusion that the request was equivocal, but because the state court’s conclusion

was “not objectively unreasonable.” 

 The majority failed to do the same here.

      To be sure, there are other facts that support the majority’s position that

Malone’s request to represent himself was unequivocal. The Nevada Supreme

Court could have come to a different conclusion with the same evidence. But the

AEDPA standard is not whether we think the request was unequivocal but whether

the state court’s decision to the contrary was unreasonable. I cannot say that the

support in the record is so vast that the state court’s decision was unreasonable, so

I respectfully dissent.




                                          3