Whether the Sixth Amendment right to self-representation established in Faretta applies to preliminary hearings in state criminal proceedings

No question identified. : Case: 20-15278, 08/24/2023, ID: 12780116, DktEntry: 79-1, Page 1 of 3 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 24 2023 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS. JACOB SMITH, No. 20-15278 D.C. No. v. ISIDRO BACA, Warden; ATTORNEY MEMORANDUM GENERAL FOR THE STATE OF NEVADA, Appeal from the United States District Court for the District of Nevada Miranda M. Du, Chief District Judge, Presiding Submitted August 21, 2023 San Francisco, California Before: BUMATAY, KOH, and DESAI, Circuit Judges. Nevada state inmate Jacob Smith appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for first-degree murder. A screening panel of this court granted Smith’s application for a certificate This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Case: 20-15278, 08/24/2023, ID: 12780116, DktEntry: 79-1, Page 3 of 3 Here, Smith challenges the justice court’s decision to not allow him to proceed pro se during the preliminary hearing. He cannot show that this decision was contrary to clearly established Federal law because the Supreme Court has not spoken on whether Faretta rights apply at a preliminary hearing. Smith identifies no dispositive Supreme Court case on this point. While Faretta established the right to self-representation at trial, 422 U.S. at 834, no Supreme Court case extends that right of self-representation to a preliminary hearing. Accordingly, we cannot say that the justice court’s decision was contrary to Federal law under Faretta. 2. Under Circuit Rule 22-1(e), we construe Smith’s briefing on the uncertified issues regarding Faretta rights at trial before the state district court, prosecutorial misconduct,' and burden of proof as a motion to expand the certificate of appealability. After considering Smith’s amended arguments, we deny the motion. Smith cannot make a substantial showing of the denial of a constitutional right. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (quoting Nardi v. Stewart, 354 F.3d 1134, 1138 (9th Cir. 2004)). AFFIRMED. ' On August 16, 2023, the court received Smith’s pro se motion to amend his opening brief to amend his uncertified issues to include prosecutorial misconduct. Dkt. No. #76. We GRANT the motion and accept Smith’s amended arguments regarding uncertified issues. Dkt. No. #77. Case: 20-15278, 09/22/2023, ID: 12797126, DktEntry: 83, Page 1 of 1 UNITED STATES COURT OF APPEALS s | L E D FOR THE NINTH CIRCUIT SEP 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS JACOB SMITH, No. 20-15278 D.C. No. 3:14-cv-005 12-MMD-CLB V. ORDER ISIDRO BACA, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA, Before: BUMATAY, KOH, and DESAI, Circuit Judges. The panel unanimously voted to deny the petition for panel rehearing. Fed. R. App. P. 40. To appeal to the United States Supreme Court, Petitioner must file a petition for a writ of certiorari directly in the Supreme Court, rather than a Notice of Appeal in the U.S. Court of Appeals for the Ninth Circuit. A petition for certiorari in the Supreme Court does not require a certificate of appealability. Any petition for writ of certiorari must meet the requirements set forth by the U.S. Supreme Court. The petition for panel rehearing is therefore DENIED. ¢ ertitic ate ot Service. Lt Jacoh Smith He re loy certify that This [Sa true and cufect Copy of a Morinn for Contiuanced, Nate t-23-23 eA C it re, my itd, 0