Lead Opinion
Opinion by Judge BERZON; Concurrence by Judge FERNANDEZ.
BERZON, Circuit Judge:
Armis Arrendondo represented himself against theft charges at trial and was sentenced under Nevada’s habitual criminal statute, Nev.Rev.Stat. § 207.010, to two concurrent life sentences, with the possibility of parole after ten years. He contested his continued detention via a petition for habeas corpus under 28 U.S.C. § 2254, and now appeals the district court’s (1) denial, on the merits, of his claim of invalid waiver of his right to counsel and (2) dismissal as unexhausted of his claim of denial of the use of compulsory process. Compelled by the statutory limits on our habeas corpus review of state convictions, we affirm.
I.
In September 2003, a Las Vegas homeowner returned from a vacation in Colorado to find his residence ransacked, several of his possessions missing, and his Winnebago motor home gone from its garage.
At Arrendondo’s arraignment, he pleaded not guilty. In the months that followed, several public defenders represented Arrendondo in pre-trial proceedings. Public defender Drew Christensen represented him at arraignment. Several weeks later, at a hearing on Arrendondo’s motion for release, public defender Delbert Martin entered an appearance. Public defender Victor Austin was then appointed to represent Arrendondo, but at several subsequent calendar calls public defender Lynn Avants appeared instead of Austin.
Arrendondo grew dissatisfied with the quality of representation provided him by the public defender’s office. At the second of the two calendar calls at which Avants appeared, Arrendondo expressed frustration that he had not met or been represented in court by Austin, his appointed lawyer. The court ordered Austin “to be prepared for [t]rial or another Public Defender will be assigned.”
Approximately two and a half months after his arraignment, Arrendondo filed a handwritten Motion to Dismiss Counsel and Appointment of Alternate Counsel. In it, he alleged that his appointed attorney, “Victor Osten [sic],” had “refus[ed] or fail[ed] to communicate and/or visit” him in jail; had routinely missed court dates; and had “failed to assign an investigator to gather information.” Arrendondo concluded by stating that “clearly, a conflict of interest now exist[s] between counsel/client (defendant).” At a subsequent hearing on the matter, Austin explained that Arrendondo had not complied with Austin’s request to reveal the names and addresses of potential witnesses, a representation Arrendondo disputed. It was this failure to furnish names and addresses, Austin continued, that explained his unwillingness to appoint an investigator. Arrendondo, in turn, demanded “competent counsel to represent me because it just seems like he’s absent-minded. I tell him one thing and two minutes later he forgets what I told him.”
The court denied Arrendondo’s motion for new counsel. Nonetheless, for reasons not apparent from the record, public defender Kristen M. Lynch replaced Austin as Arrendondo’s attorney.
Over half a year later Arrendondo filed a second handwritten Motion to Dismiss Counsel. That motion alleged that Lynch had missed a court date; had “fail[ed] to file pretrial motions, writs, or petitions” in support of his case; and had “refus[ed] or fail[ed] to communicate and/or visit” Arre-nondo in jail. It continued:
Lynch (Public Defender) and others like her are only interested in railroading the defendant and/or having the defendant sign a plea agreement. There is definitely a conflict of interest here. Its [sic] like having a nemesis in charge of ensuring that justice is done. The only fair remedy is to have a state appointed attorney assigned to this case, instead of a public defender.
The motion also sought to permit Arren-dondo to proceed pro se.
At a hearing held in response to Arren-dondo’s motion, at which public defender Lynn Avants appeared rather than Lynch, the court canvassed Arrendondo to determine whether he sought to waive his right to counsel and, if so, whether he was doing so knowingly, intelligently, and voluntarily:
Court:.... Do you want to represent yourself or not?
Defendant: I believe, um, I would need standby counsel.
Court: We don’t do that, in most instances. This certainly wouldn’t be one. Maybe in a murder case I might concede. I don’t know. I don’t typically do that.
Defendant: When it comes to posing viable objections or proper arguments, you know, an attorney who’s been practicing every day, um, obviously would do a much better job than myself.
Court: Do you want to let them do their job or do it yourself?
Defendant: I believe I can prove my innocence. With the assistance of counsel, of course, it will be much easier.
Court: Do you want to go ahead and let your attorney assist you?
Defendant: Will he be representing me?
Court: Are you the attorney of record?
Mr. Avants: No. It’s Ms. Lynch.
Court: It’s Ms. Lynch.
Defendant: I cannot. No way.
Court: Let’s get on with it here. Do you want to represent yourself?
Defendant: Absolutely.
Court: You don’t have to say anything more. You’ve made your decision?
Defendant: Between incompetent counsel or self-representation? •
Court: We don’t have the whole day to spend here.
Court: You prefer to take the disadvantage of not having full knowledge of the law and letting some prosecutor perhaps take advantage of you in that regard. Is that your thinking?
Defendant: This is a situation — it’s between incompetent counsel, the ineffective assistance of counsel.
Court: We’re not getting into that. I want to know if you want to represent yourself. I don’t care why. I want you to realize you’re up against a lot of problems here.
Defendant: I have no other choice, apparently.
The court advised Arrendondo that proceeding pro se was “unwise”; that he would “have to adhere to the same procedural rules as the lawyers”; that he could not complain of ineffective assistance of counsel on appeal; that the state would be represented by an experienced prosecutor; that he would not receive special library privileges at the jail; that his legal ignorance would “give the prosecutor an advantage”; and that, if he testified, he would have difficulty arguing his own credibility before the jury. Arrendondo acknowledged that he understood each of these statements.
The court then outlined the elements of the crimes of which Arrendondo was accused and inquired as to Arrendondo’s knowledge of possible defenses. The court also reviewed the possible penalties carried by a conviction:
Court: You understand the penalties that are possible here?
Defendant: I believe it carries one to six.
Court: Possession of stolen vehicle is one to 10 years in prison and as much as a $10,000 fine. Possession of stolen property over $2,500 is one to 10 years in prison and a $10,000 fine. If it’s between 250 and 2,500 dollars, I believe it’s a C felony, which is one to five, and a $10,000 fine. If it’s under $250, it’s a misdemeanor. Do you understand that?
Defendant: Yes.
The court then found that Arrendondo had “knowingly and freely and voluntarily waiv[ed]” his right to counsel and granted his motion to proceed pro se.
At trial, at least two of Arrendondo’s witnesses did not appear. Arrendondo did not have their “subpoena returns” because the subpoenas “went out a little late.” As he explained, “I wanted to schedule this— it was Thursday, and I had no idea we were going to trial today.... I thought I was just picking the jury today.” At 5:15 PM that day, the court adjourned. It instructed Arrendondo to produce his absent witnesses at 10:00 AM the following morning. Those witnesses did not appear at the appointed hour.
The jury convicted Arrendondo on both counts. Days later, the state filed a Notice of Intent to Seek Punishment as a Habitual Criminal under Nev.Rev.Stat. § 207.010, on the basis of four prior convictions. For a felon previously convicted of three felonies, § 207.010(b) prescribes any of three possible punishments, the most severe of which is life without the possibility of parole. The court sentenced Arrendondo to two concurrent life sentences, with the possibility of parole after ten years.
Arrendondo appealed to the Nevada Supreme Court. That court ordered appointment of counsel, and Marvin L. Lon-gabaugh was selected to represent Arren-dondo.
In his briefs before the Nevada Supreme Court, Arrendondo’s counsel pressed three claims, two of which are relevant here: He argued that (1) “the State’s failure to advise the district court that Arrendondo might be charged as a habitual criminal made Arrendondo’s waiver of counsel invalid”; and (2) the trial court denied Arrendondo “adequate time to produce his trial witnesses.”
After Longabaugh filed Arrendondo’s opening brief but before receiving the state’s answering brief, Arrendondo wrote a letter to Longabaugh expressing concerns about his appeal. That letter is not included in the record, but Longabaugh’s written response is. In it, Longabaugh explains that the appeal
focuses on errors that the district court made during your case. If we were to present these constitutional issues at this time, you would be waiving your ability to appeal these issues through your habeas corpus petition. Consequently, we did not address these possible federal constitutional violations because we want to preserve your right to argue them when and if you seek habeas relief.
While the appeal was pending, Arren-dondo filed a hand-written, pro se Motion to Dismiss Counsel and Appointment of Alternate Counsel. In it, he alleged that Longabaugh had failed to raise several claims. Included among these grievances was the assertion that Longabaugh had refused to substantiate Arrendondo’s inability to produce witnesses by appending stamped subpoenas as exhibits to the appellate briefs. The Nevada Supreme Court denied the motion.
Three months later, the Nevada Supreme Court issued its decision on Arren-dondo’s appeal. It affirmed the validity of his waiver of counsel. “Although the district court indicated that Arrendondo would face a maximum of twenty years if convicted, rather than life,” the court reasoned, “the otherwise extensive canvass of Arrendondo demonstrated that he understood the dangers and disadvantages of self-representation.” The Nevada Supreme Court also noted that when Arren-
Without first filing a state post-conviction petition, Arrendondo filed a federal habeas petition. That petition was dismissed without prejudice for reasons unexplained in the record. This second pro se federal habeas petition followed. In it, Arrendondo argued that his waiver of counsel was invalid, because it was neither knowing and intelligent nor voluntary. He also asserted denial of his right to compulsory process.
The district court dismissed Arrendon-do’s denial of compulsory process claim on exhaustion grounds. Because of the unex-hausted claims, the district court declared the petition “mixed” and thus subject to dismissal, see Rose v. Lundy,
This appeal followed. A Certificate of Appealability was granted on both the validity of Arrendondo’s waiver of counsel and the determination that Arrendondo’s compulsory process claim was unexhaust-ed. We ordered counsel appointed for the appeal.
II.
A criminal defendant may waive his Sixth Amendment right “to have the Assistance of Counsel for his defence,” U.S. Const, amend. VI, only if he acts “knowingly and intelligently,” with full awareness of the “dangers and disadvantages of self-representation.” Faretta v. California,
Arrendondo argues that his waiver of counsel was neither “knowing and intelligent” nor voluntary. Because the Supreme Court of Nevada has already rejected Arrendondo’s claim on the merits, the deferential standard codified at 28 U.S.C. § 2254(d)(1) governs our review of Arren-dondo’s petition.
A.
To prove that his waiver of counsel was not “knowing and intelligent,” Arrendondo advances a pair of related arguments. He first attributes error to the trial court’s failure to discharge its “duty to ensure that an accused who sought to proceed pro se was advised of the range of possible punishments.” Elsewhere, Arrendondo switches tacks, asserting that his colloquy with the trial court demonstrates that he “lacked the knowledge that he was facing a sentence of life in prison if convicted.” Neither argument entitles Arrendondo to habeas relief, but the latter comes closer to the mark than the former.
1. As to Arrendondo’s first argument: No clearly established Supreme Court case law requires trial courts to apprise defendants in any particular form of the risks of proceeding to trial pro se. Under the governing Supreme Court precedents, so long as “the record ... establishes] that ‘[the defendant] knows what he is doing and his choice is made with eyes open,’ ” the waiver of counsel is valid. Faretta,
In direct appeals, this Court has noted that “it is ‘only the rare case in which an adequate waiver will be found on the record in the absence of a specific inquiry by the trial judge,’ ” Gerritsen,
In sum, Arrendondo’s assertion that the Constitution requires particularized warnings when a defendant seeks to represent himself is not supported by established Supreme Court law. Under 28 U.S.C. § 2254(d)(1), we must deny the request for habeas relief insofar as it is premised on that assertion.
2. Arrendondo next argues that, at the time of his waiver, he “simply did not have an adequate appreciation of the length of prison time that he would face upon conviction.” The Supreme Court has clearly established that a defendant must have a general understanding of the potential penalties of conviction before waiving counsel to render that waiver valid. See infra Part II.A.2.a. It has not, however, determined whether a defendant must understand the potential penal consequences of sentencing enhancements that have not yet been charged. See infra Part II.A.2.b. And, we conclude, refusing to require such an understanding is not an unreasonable application of what little the Supreme Court has said on the matter. See id. Consequently, Arrendondo’s ignorance of the possibility that he could be sentenced as a habitual criminal if the prosecution later filed notice that it would seek such a
a. Faretta,
Faretta itself did not specifically address the defendant’s awareness of his possible punishments. But Tovar,
The requirement recounted in Tovar complements the requisites for a valid waiver of the right to counsel described in Faretta.
Tovar, unlike this case, concerned an uncounseled guilty plea, not a defendant who represented himself at trial. But To-var addressed the relationship between waiver at the plea phase and waiver at trial, stating that at the plea stage, “a less searching or formal colloquy” is needed to gauge the defendant’s knowledge than is necessary with regard to waiver of trial counsel. Tovar,
The risk calculation involved in determining whether to represent oneself at trial differs from that at the plea stage with regard to the number of tactical dangers of proceeding without counsel — that is, the probability that proceeding without counsel will affect the outcome. But there is no difference at all in the two circumstances with regard to the other component of risk calculation — namely, knowledge of the magnitude of the risk faced. And, given the Court’s express declaration that the requirements for a guilty plea waiver of counsel are less rigorous than those applicable to a trial waiver, excising any of Tovar’s requirements in the trial context would be an unreasonable interpretation of clearly established Supreme Court law.
b. Here, the trial court informed Arrendondo of the maximum penalties carried by conviction for the charged offenses, possession of a stolen vehicle and possession of stolen property, and Arren-dondo confirmed that he understood the court’s statement. See Nev.Rev.Stat. §§ 205.273(4), 205.275(2)(c). We generally presume that defendants seeking to waive their right to counsel understand what they are told regarding that choice. See, e.g., Patterson,
Arrendondo contests that conclusion on the ground that he was unaware of the potential for a greater penal exposure under Nevada’s habitual criminal statute, Nev.Rev.Stat. § 207.010, with which he had not yet been charged when he waived
i. Clearly established Supreme Court law does not require a defendant waiving’ his right to counsel to understand the potential application of recidivist sentencing énhancements that had not yet been charged, and were not required to have been charged, at the time of the waiver. Where sentencing enhancements are based solely on prior convictions, current Supreme Court case law does not require that the convictions be charged before conviction, tried to a jury, or found beyond a reasonable doubt. See Almendarez-Torres v. United States,
ii. Section 2254(d)(1) permits ha-beas relief not only where a state court decision is inconsistent with clearly established Supreme Court law, but also where its decision “involved an unreasonable application of[ ] clearly established ... law.” “[T]he lack of a Supreme Court decision on nearly identical facts does not by itself mean that there is no clearly established federal law, since ‘a general standard’ from [the Supreme] Court’s cases can supply such law,” Marshall v. Rodgers, — U.S. -,
A state court applies a .clearly established standard unreasonably only if no “reasonable interpretation of the control
does not require state courts to extend [a Supreme Court] precedent or license federal courts to treat the failure to do so as error. Thus, “if a habeas court must extend a rationale before it can apply to the facts at hand,” then by definition the rationale was not “clearly established at the time of the state-court decision.” AEDPA’s carefully constructed framework “would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law.”
White,
Applying these standards, we hold that it was not unreasonable for the Nevada Supreme Court to rest its denial of Arren-dondo’s knowing and voluntary waiver claim in part on the circumstance that the enhancements had not been charged, or otherwise presaged, at the time of the waiver. Requiring pretrial knowledge of the potential for such later enhancements would extend Tovar’s requirement to cir-cumstanees not addressed by that case, which 28 U.S.C. § 2254(d)(1) would permit only if all reasonable interpretations of Tovar would so require. See White,
First, as to whether “ ‘fairminded jurists could disagree’ on the correctness of’ the Nevada Supreme Court’s limitation on the knowledge a defendant must possess to waive counsel, Richter,
The “fairminded jurist” standard focuses “on application of law rather than on counting noses,” Doody v. Ryan,
As is often the case in federal court, prior convictions may not be identified before trial, before the waiver of counsel, or before the entry of a guilty plea. Cf. e.g., United States v. Barrios-Gutierrez,
We might well conclude otherwise, were the issue before us on direct appeal, particularly where the impact of recidivist enhancements on the defendant’s penal exposure is great. The knowledge of very substantial recidivist sentencing enhancements, even if contingent and vague, could well be sufficiently likely to affect a defendant’s risk assessment in deciding whether to forego counsel to come within the Tovar requirement. Indeed, in United States v. Keen we held invalid a waiver of , counsel where there was “no indication that [the defendant] was aware of the enhanced penalty he faced as a result of [his] prior convictions under the armed career crimi
Nevertheless, we “ ‘may not issue the [habeas] writ simply because [we] con-elude[ ] in [our] independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly.’ ” Lockyer v. Andrade,
B.
A defendant’s waiver of counsel must not only be knowing and intelligent, it must also be voluntary. See Faretta,
When unconstrained by 28 U.S.C. § 2254(d)(1), our cases do indicate that a Faretta waiver is involuntary if the alternative is constitutionally inadequate counsel. See Crandell v. Bunnell,
On collateral attack, a habeas petitioner contesting the validity of his waiver of counsel shoulders the burden of proof. See Tovar,
Arrendondo does not begin to meet this burden. He notes in his briefing only that he and his last public defender, Lynch, had limited contact as they prepared for trial and that, shortly before his waiver, Arrendondo complained that he “ Svants motions and writs filed.’ ” The ha-beas record contains no information at all concerning what “motions and writs” he wanted filed, so it is impossible to evaluate whether they had any chance of success, or whether a competent lawyer could have had a tactical or strategic reason for not filing them. See Richter,
What little evidence is included in the record cuts against Arrendondo. In a pro se Motion to Dismiss Counsel, filed in the weeks leading up to trial, Arrendondo alleged that Lynch had failed to appear at a hearing to consider Arrendondo’s Motion for Bail Reduction, leaving him “without anyone to argue my position.” The record does not include a transcript of that hearing, but court minutes reveal that public defender Jannette Reyes-Speer appeared on Arrendondo’s behalf, contradicting any claim of abandonment. Moreover, at a subsequent hearing to consider Arrendon-do’s Motion to Dismiss Counsel, the court emphatically denied that Lynch’s absence had affected its decision on the bail-reduction motion. “It wouldn’t have mattered if it would have been Ms. Lynch or someone else standing there,” the court explained. “The same facts apply.” Thus, no possibility of Strickland prejudice could be established.
Last, Arrendondo’s Motion to Dismiss Counsel asserted the existence of what Arrendondo termed a “conflict of interest.” The claim is significant, because demonstrating “that an actual conflict of interest adversely affected his lawyer’s performance” would relieve Arrendondo of the burden of showing prejudice. Sullivan,
In short, Arrendondo has not established that he was required to choose between constitutionally inadequate counsel and self-representation. His claim of involuntary waiver thus fails for lack of proof, whatever the merits might otherwise be.
III.
The district court dismissed Arrendon-do’s compulsory process claim as unex-hausted, for failure fairly to present an
Usually, a state prisoner must exhaust available state remedies before a federal habeas court will consider his claim. See 28 U.S.C. § 2254(b)(1)(A). This “rule of comity reduces friction between the state and federal court systems by avoiding the ‘unseem[liness]’ of a federal district court’s overturning a state court conviction without the state courts having had an opportunity to correct the constitutional violation in the first instance.” O’Sullivan v. Boerckel,
1. Arrendondo argues that his inclusion of a reference to Harris v. State,
Nevertheless,
[f]or a federal issue to be presented by the citation of a state decision dealing with both state and federal issues relevant to the claim, the citation must be accompanied by some clear indication that the case involves federal issues. Where ... the citation to the state case has no signal in the text of the brief that the petitioner raises federal claims or relies on state law cases that resolve federal issues, the federal claim is not fairly presented.
Casey v. Moore,
Had Arrendondo included Nobles in his briefs, it might have satisfied the fair-presentation requirement. That requirement may be satisfied “by citing ... a case deciding [a sufficiently similar] claim on federal grounds.” Baldwin v. Reese,
‘ 3. Last, Arrendondo asserts that the Nevada Supreme Court’s reference to Harris in the decision rejecting his appeal demonstrates that the Nevada Supreme Court “was aware of the federal constitutional basis of the claim,” so the question whether he properly raised the issue does not matter.
The legal premise of this argument is correct. “[T]here is no point in asking whether a state court had a ‘full and fair opportunity to resolve federal constitutional claims’ when the state court in fact did so.” Sandgathe v. Maass,
In Sandgathe, however, the last reasoned state court opinion “explicitly ruled on the federal constitutional issue[ ],” such that the claim was exhausted. Id. at 378; see also Ybarra,
4. In the alternative, Arrendondo asks us to excuse his failure to exhaust the compulsory-process claim because his appellate counsel was constitutionally ineffective.
“[Clause ... and actual prejudice” will excuse a state prisoner’s default of “his federal claims in state court pursuant to an independent and adequate state procedural rule,” and constitutionally ineffective assistance of counsel qualifies as cause. Coleman v. Thompson,
Here, Arrendondo did not bring a state post-conviction petition raising either his compulsory process claim on the merits or a claim of ineffective assistance of his appellate counsel with respect to the compulsory process issue. Both paths were open to him, but he took neither. Pursing on post-conviction review his federal compulsory process claim and his claim of ineffective assistance of appellate counsel would have exhausted both, notwithstanding the alleged failures of his appellate counsel.
Arrendondo’s failure to raise either claim in state post-conviction proceedings bars consideration of his compulsory process claim now. Had Arrendondo sought post-conviction relief on the claims, we would have been able to address the compulsory process claim if it were cognizable in state court on post-conviction review, and we could have considered whether his appellate counsel was ineffective in not raising the federal compulsory process claim. If we concluded that appellate counsel was inadequate and that the inadequacy actually prejudiced Arrendondo, we could have addressed the compulsory process claim on the merits even if the state courts would not do so because of a procedural default. In the absence of any state post-conviction petition on either of the two related claims, however, we are entirely precluded from hearing his compulsory process claim on the merits, as Arrendon-do did not pursue the claims through all available state procedures. See 28 U.S.C. § 2254(b).
For the reasons above, we AFFIRM the district court’s judgment on the merits, holding the Nevada Supreme Court’s ruling on the validity of Arrendondo’s waiver of the right to counsel not unreasonable. And we AFFIRM the district court’s dismissal of Arrendondo’s compulsory process claim.
AFFIRMED.
Notes
. Arrendondo does not contend that the Nevada Supreme Court’s ruling rested on unreasonable factfinding, so 28 U.S.C. § 2254(d)(2) — permitting relief where the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding” — is inapplicable.
. Von Moltke was a plurality opinion, which Faretta,
. Decades before Tovar, we adopted a similar requirement in our cases on direct review. See, e.g., United States v. Harris,
. At the time of Arrendondo's conviction, Nevada law did not require that a defendant be charged with the habitual criminal enhancement, or with the prior convictions underlying that enhancement, prior to trial. See Nev. Rev.Stat. §§ 173.095, 207.016(2). At that time, the statute permitted the prosecutor to seek an enhanced sentence, at the discretion of the prosecuting attorney, see Nev.Rev.Stat. § 207.010(2), by filing an information after conviction but before sentencing, see Crutcher v. Eighth Judicial Dist. Court In & For Cnty. of Clark,
In 2013, however, the Nevada legislature amended the relevant statutory provision to require the filing of a habitual criminal information "not less than 2 days before the start of the trial on the primary offense, unless an agreement of the parties provides otherwise or the court for good cause shown makes an order extending the time.” 2013 Nev. Legis. Serv. Ch. 292, § 1 (A.B. 97) (West) (codified at Nev.Rev.Stat. § 207.016(2)).
. The adverb "thereunder” is referential. " 'Where no contrary intention appears,’ ” such a referential word " 'refer[s] solely to the last antecedent.’ ” May Trucking Co. v. Oregon Dept., of Transp.,
. We note, without adopting the result as our own, that the Fourth Circuit resolved a similar question in the "analogous context” of the knowledge a defendant must possess to plead guilty, Gerritsen,
. Although Keen predates Tovar, the law of this Circuit already required a defendant waiving his right to counsel to understand his possible penal exposure. See, e.g., Harris,
. Nevertheless, "[m]ere 'general appeals to broad constitutional principles, such as due process, equal protection, and the right to a fair trial,’ do not establish exhaustion.” Castillo,
. “Properly exhausted claims may also be procedurally defaulted. If a state court determines that a claim is procedurally barred, we are precluded from reviewing the merits of the claim if the procedural bar is adequate and independent.” Beaty,
. Arrendondo also asserts that the Nevada's failure to oppose this argument in its answer
Concurrence Opinion
concurring:
I concur in the result reached by the majority.
I agree that no clearly established Supreme Court law requires a district court to do more than inform a defendant of the maximum penalties for the offenses he was chargéd with at the time he decided td represent himself. See Faretta v. California,
However, I am reluctant to rule on issues that are not necessary to our decision or to engage in lengthy discus'sions or musings that need not be pursued at this time. Indeed, I see great danger wheh we say more than is required to decide the case before us; our doing so may well create unintended reefs that others must navigate in the future if they are.to avoid disaster. For example, I find much of the discussion contained in part II.A.2.a. essentially unnecessary, and that the conclusion that any Tovar requirement must apply in the trial context (whatever that means for the whole period from the beginning of a case to its termination) is especially unnecessary and problematic. Similarly, I see no need to speculate about what we might or might-not do if this were a direct appeal, as the majority does at pages 1135-36. And, I see no need to opine on what we could or would do had Arrendondo presented his case in a different manner in the state courts. See page 1140 — 41 of the majority opinion.
In short, while I wholeheartedly agree in the result and in the analysis necessary to the result, I am not willing to run the risk of unintended consequences that comes from saying too much. I, therefore, do not join in the majority’s divagations and unnecessary assertions. Thus, I respectfully concur in the result only.