FILED
UNITED STATES COURT OF APPEALS NOV 29 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U .S. C O U R T OF APPE ALS
JOSEPH ALFONSO DURAN, No. 11-55566
Petitioner - Appellee, D.C. No. 3:08-cv-00430-WQH-
RBB
v.
ORDER
MATTHEW CATE, Secretary,
Respondent - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Argued and Submitted March 9, 2012
Pasadena, California
Before: PREGERSON, GOULD, and TALLMAN, Circuit Judges.
On March 9, 2011, the district court granted state prisoner Joseph Duran a
writ of habeas corpus on the ground that Duran’s waiver of his right to counsel
violated Faretta v. California, 422 U.S. 806 (1975) because it was not knowingly
and intelligently made for the reason that the state trial judge who took the Faretta
waiver incorrectly told Duran that he faced a maximum prison sentence of twenty
years. The state timely appealed. We heard oral argument in this case on March 9,
2012.
At oral argument, the state reversed its position and argued for the first time
that the state trial judge who took the Faretta waiver on October 28, 2004 correctly
advised Duran that he faced a maximum punishment of twenty years. The state
pointed out that twenty years was the maximum possible punishment at the time of
the Faretta waiver because the original information only alleged one prior strike.
The state pointed out that it was only after an amended information was filed on
January 13, 2005 that Duran was exposed to a maximum term of life
imprisonment, because the amended information included an additional prior
strike, for a total of two prior strikes. Because the district court did not have the
benefit of this argument when it granted Duran habeas relief, we VACATE the
district court’s grant of habeas relief and REMAND for the district court to
reconsider Duran’s amended habeas petition in light of the state’s new position.
On remand, the district court shall consider the state’s new position that the
state trial judge correctly advised Duran of his maximum punishment (20 years) at
the time of the October 28, 2004 Faretta waiver. In addition, the district court
shall review any state court records regarding Duran’s January 14, 2005
arraignment on the amended information. (A copy of the state court minute order
for Duran’s January 14, 2005 arraignment is attached to this order.) After
reviewing the state court record, the district court shall make factual findings on
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the full extent of the advice that the state trial judge gave Duran regarding his
rights during the January 14, 2005 arraignment, including: (1) whether Duran was
advised of the maximum punishment he faced upon conviction, and, (2) whether
Duran was advised of his Sixth Amendment right to counsel.
After making these factual findings, the district court shall issue a ruling on
all of the claims in Duran’s amended habeas petition, including Duran’s Faretta
claim.
After it rules on Duran’s amended habeas petition, the district court may
issue a certificate of appealability on any claim raised in Duran’s amended habeas
petition.
VACATED and REMANDED.
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FILED
Duran v. Cate, No. 11-55566 NOV 29 2012
MOLLY C. DWYER, CLERK
TALLMAN, Circuit Judge, dissenting: U .S. C O U R T OF APPE ALS
I respectfully dissent from the panel’s decision to remand this case to the
district court. The majority ignores AEDPA’s allocation of the burden of proof on
the petitioner. See Lambert v. Blodgett, 393 F.3d 943, 969 n.16 (9th Cir. 2004).
This decision reverses the statutory burden and shifts it to the State to disprove the
unsupported claim. Further, remand for reconsideration is unnecessary because the
decision of the California courts to deny habeas relief was objectively reasonable
where the United States Supreme Court "has not squarely established that, after a
valid Faretta waiver, criminal defendants must be re-advised of the right to
counsel following the addition of new charges against them . . . ." Becker v.
Martel, 472 Fed. App’x 823, 824 (9th Cir. 2012).
When the district court granted Duran habeas relief, the district court
mistakenly believed that the state trial judge who took the Faretta waiver on
October 28, 2004, incorrectly advised Duran that he faced a maximum punishment
of twenty years instead of life imprisonment. The parties now agree that at that
time Duran was facing a single count with a maximum punishment of twenty years
and that he was correctly advised when he waived counsel. He was also expressly
warned that he would be responsible for all consequences in the future of his
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decision to represent himself. It was only after the amended information was filed
on January 13, 2005, adding several additional counts that Duran was exposed to a
maximum term of life imprisonment. That is an inherent risk in a criminal
prosecution which Duran agreed to take by demanding to be his own lawyer.
We must remain true to the constrictions of AEDPA. Even if the district
court's understanding of the facts had been correct, our determination of whether
the California Supreme Court's denial of Duran's Faretta claim was based on "an
unreasonable application of clearly established federal law as determined by the
Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), would remain
unchanged. It is unchallenged that the Supreme Court has not squarely addressed
whether a criminal defendant, after a valid Faretta waiver, must be re-advised of
the right to counsel following a substantial change in circumstances. Becker, 472
Fed. App’x at 824. An evidentiary hearing on remand will not change the result in
this case. Any new factual findings on remand regarding Duran's January 14,
2005, arraignment, including whether the state trial judge advised Duran that he
faced a maximum term of life imprisonment, would not alter the "unreasonable
application" analysis of the California Supreme Court's denial of the Faretta claim
when the knowing and voluntary waiver was previously taken by the San Diego
County Superior Court.
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Duran bears the burden of establishing entitlement to habeas relief on his
Faretta claim and in light of the foregoing analysis he failed to carry that burden,
notwithstanding any new factual findings that might be made regarding his January
14, 2005, arraignment. Because a remand to the district court could not ultimately
yield a successful Faretta claim, I would vacate the district court's grant of the writ
and remand with instructions to deny federal habeas relief. I respectfully dissent.
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