dissenting:
I respectfully dissent.
Using the case as something of a straw man, to be set up and knocked down, the majority cites United States v. Balough, 820 F.2d 1485 (9th Cir.1987), only to disregard it, characterizing the case as doing nothing more than “setfting] forth the ‘preferred procedure’ for a federal district court to follow” before permitting a defendant to waive his Sixth Amendment right to counsel. The Balough requirements, however, were clearly made a part of our habeas law in Harding v. Lewis, 834 F.2d 853 (9th Cir.1987).
The preferable procedure for determining whether the waiver is made knowingly and intelligently is to discuss with the defendant in open court his understanding of the charges, the possible penalties, and the dangers of self-representation. United States v. Dujanovic, 486 F.2d 182, 188 (9th Cir.1973). The failure to engage the defendant in such a *672colloquy does not necessitate reversal, however, if the record otherwise reveals a knowing and intelligent waiver. Cooley v. United States, 501 F.2d 1249, 1252 (9th Cir.1974). This exception, however, should rarely be invoked. United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978).
Id. at 857. Under Harding, the trial court was required either to follow the preferred procedure or otherwise to insure that the waiver was knowing and intelligent.1 We have continued to apply the Balough/Har-ding requirement in state habeas cases.
The rule set forth in both Hendricks [v. Zenon, 993 F.2d 664 (9th Cir.1993) ] and Balough is that “in order to invoke the Sixth Amendment right to self representation, the request must be: (1) knowing and intelligent, and (2) unequivocal.” Hendricks, 993 F.2d at 669. “For a waiver to be made ‘knowingly and intelligently,’ the petitioner must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self-representation.” Id. at 670.
Snook v. Wood, 89 F.3d 605, 613 (9th Cir.1996).
As the state court transcript appended to the majority opinion makes clear, the trial court neither followed the preferred procedure nor otherwise insured that Moreno’s waiver was knowing and intelligent. No effort was made to explain the nature of the charges or to ascertain whether Moreno understood the nature of the charges he was facing. There is, similarly, no mention in the colloquy of the possible penalties Moreno faced (he was sentenced to a 36-year term of imprisonment). And, as those portions of the transcript quoted in the majority opinion demonstrate, Moreno was warned of the consequences of self-representation only in the vaguest and most general terms.2 Moreno was not queried or informed about any of the intricacies of trying a criminal case, including voir dire and jury selection, the rules of evidence (e.g., hearsay, leading questions, authentication, opinion testimony), his familiarity with obtaining compulsory process for witnesses or documents, discovery, or Brady rights. The record is simply barren of these matters.
This lacuna in the record is all the more troubling because it is apparent from the record that Moreno did not really want to represent himself, but wanted another attorney, other than the Public Defender, appointed to represent him. When asked on February 6, 1981, whether he “intend[ed] to represent yourself at this point or do you have another counsel?” Moreno responded: “No. I have no choice to — but to represent myself.” And later in the same proceeding, Moreno reiterated his position: “I’m not refusing my right to a lawyer, and I won’t say that[.] I’m not. Simple as that.”
*673I thus conclude that this is not one of those rare cases in which, in spite of the trial court’s failure to engage in the preferred colloquy, the record nonetheless discloses that the defendant “understood [] the proceedings, including the possible consequences, and the dangers of acting as his own attorney.” Harding, 834 F.2d at 857.
Respectfully, the majority has not only disregarded Balough, but has also ignored the teaching of Harding, Hendricks, and Snook, cases which clearly establish the minimum requirement in state habeas cases for a constitutionally acceptable Far-etta inquiry. Because this case does not meet that minimum requirement in that the defendant’s waiver was not knowingly and intelligently made, I would affirm the district court’s conditional issuance of the writ.
. Because Harding is not a new rule, but the application of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), and the rule first laid down in Dujanovic and Cooley, decided in the mid-70s, it presents no retroactivity problem under Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). See Penry v. Lynaugh, 492 U.S. 302, 314, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). Moreover, we held in Snook v. Wood, 89 F.3d 605 (9th Cir.1996), that the application of Balough to a 1975 state conviction did not violate Teague. See id. at 612-13.
The majority also asserts that "because Ba-lough is not a rule of constitutional law, it is not available to a petitioner proceeding with a habeas corpus petition.” Because Harding is a state habeas case, however, the procedure it approved for a Faretta waiver was necessarily based on the Constitution and is a protection guaranteed by the Constitution, as required by Stone v. Powell, 428 U.S. 465, 486, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976).
. Moreno was told, for example:
• You will be charged with the same knowledge as an attorney in this court room. I will not bend over backwards to help you if a mistake is being made.
® I want to warn you of the consequences of representing yourself, like I told you earlier, I’m not going to give you any special favors or compensation....
• We need to make sure that you understand-first of all, I’m sure you’re aware of this, that anything you say can and will be used against you, since it’s all being put down on the record.