NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 29 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL PIERCE, No. 17-15539
Petitioner-Appellant, D.C. No. 5:15-cv-05568-LHK
v. MEMORANDUM *
STUART SHERMAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted January 16, 2019**
San Francisco, California
Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN, District
Judge***
Randall Pierce appeals the district court’s decision denying his petition for a
writ of habeas corpus under 28 U.S.C. § 2254.
*
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).
***
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
In state court, Pierce was charged with failing to properly register as a sex
offender. At his initial appearance, he waived his right to counsel. But the waiver
colloquy was defective, in that the court did not advise the petitioner of the nature
of the charges against him and the range of penalties he faced. Pierce represented
himself at trial, was convicted, and was sentenced to five years and four months’
imprisonment. After exhausting his state-court remedies, Pierce filed his federal
habeas petition, alleging that he did not knowingly and intelligently waive his
Sixth Amendment right to counsel. The district court denied the petition, holding
that although the waiver colloquy was defective, the petitioner had not carried his
burden to prove that, at the time of the waiver, he did not know the nature of the
charges against him or the range of penalties he faced. “[I]n a collateral attack on
an uncounseled conviction, it is the defendant’s burden to prove that he did not
competently and intelligently waive his right to the assistance of counsel.” Iowa v.
Tovar, 541 U.S. 77, 92 (2004); see also Cordova v. Baca, 346 F.3d 924, 926 (9th
Cir. 2003) (recognizing that inadequate waiver colloquy does not automatically
invalidate the waiver).
On appeal, Pierce does not argue that, in the district court, he carried his
burden to show that he did not know the nature of the charges against him or the
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range of penalties he faced.1 Instead, he argues that the district court improperly
dismissed his habeas petition based on a pleading defect without granting him an
opportunity to amend his petition, even though he failed to request leave to amend.
But Pierce misunderstands the district court’s order. The court did not dismiss the
petition based on a pleading defect. It denied the petition after considering the
entire record. That is, the court considered the petition, the attached brief and other
supporting materials, the respondent’s answer, the respondent’s brief, and the state-
court record, and then concluded that Pierce had failed to point to any allegations
or evidence suggesting that his waiver was not knowing and intelligent. Because a
district court is generally prohibited from holding evidentiary hearings in habeas
cases and must usually decide them based on the state-court record, see, e.g., 28
U.S.C. § 2254(e); Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014),
habeas cases are almost always decided based on the briefs and other papers. See
also Rule 8(a), Rules Governing § 2254 Cases (“If the petition is not dismissed, the
judge must review the answer, any transcripts and records of state-court
1
Pierce does argue that he satisfied his burden to prove that the waiver colloquy
was defective, but, as already noted, a defective waiver colloquy will not
automatically invalidate the waiver. See Cordova, 346 F.3d at 926. Pierce also
argues that he alleged in the district court that the record did not demonstrate that
his waiver was knowing and intelligent. But, as noted, on collateral review, it is the
petitioner who bears the burden of demonstrating that his waiver was not knowing
and intelligent. So Pierce could not obtain habeas relief by proving only that the
state had not shown that his waiver was knowing and intelligent.
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proceedings, and any materials submitted under Rule 7 to determine whether an
evidentiary hearing is warranted.”). Here, in resolving this case based on the paper
record, the district court fully adjudicated Pierce’s claim—it did not dispose of it
based on a pleading defect. Therefore, it was not an abuse of discretion to fail to
grant Pierce leave to amend where he did not request it.
We also note that the district court gave Pierce an opportunity to refute the
respondent’s argument that he had not met his burden to prove that his waiver was
not knowing and intelligent. Specifically, the court gave Pierce an opportunity to
file a reply (which it called a “traverse”) to the respondent’s answer. Pierce chose
not to file a reply, and thus he chose not to respond to the respondent’s argument
that Pierce had not met his burden of proof. Accordingly, the district court did not
act unfairly in adjudicating the petition without granting Pierce a further
opportunity to submit allegations or evidence in support of his claim.
AFFIRMED.
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