                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 17 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



ROBERT MONTERROSA,                               No. 08-35174

              Petitioner - Appellant,            D.C. No. 05-Cv-01233-MO

  v.
                                                 MEMORANDUM *
BRIAN BELLEQUE,

              Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted June 10, 2010
                                 Portland, Oregon

Before: THOMPSON, McKEOWN, and PAEZ, Circuit Judges.

       Robert Monterrosa appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. Monterrosa alleges that his Sixth Amendment right

to counsel was violated when the trial judge allowed him to represent himself

during plea withdrawal proceedings without first informing him of the dangers of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
proceeding pro se as required by Faretta v. California, 422 U.S. 806, 835 (1975),

and without first determining his mental state. The Anti-Terrorism and Effective

Death Penalty Act (“AEDPA”) applies to Monterrosa’s claim, and we have

jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s denial

of the petition, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we

affirm.

      We have previously held that a state court could conclude, without running

afoul of clearly established Supreme Court precedent, that a failure to give the

warnings required by Faretta “does not automatically result in a defective

waiver—that a defendant’s waiver was nonetheless knowing and voluntary.”

Cordova v. Baca, 346 F.3d 924, 926 (9th Cir. 2003). The state post-conviction

court determined that Monterrosa was aware of the risks of proceeding pro se.

This was not an “unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The state

court could reasonably assume that, given the late stage of the proceedings,

Monterrosa was aware of the charges against him and the terms and conditions of

his plea agreement. Moreover, in light of Monterrosa’s multiple requests to change

counsel, his “extensive criminal history,” and his acknowledgement that he did not

think he would present the facts and law better than counsel, the state court could


                                          2
reasonably infer that Monterrosa was aware of his right to, and the benefits of,

counsel. And the fact that Monterrosa’s counsel had advised him not to move to

withdraw his guilty plea supports the inference that his counsel advised him of the

substantive risks of seeking to withdraw his plea. For these reasons, we cannot

conclude that the state court’s determination that Monterrosa knowingly and

voluntarily waived his right to counsel was unreasonable.

       As for Monterrosa’s claim that the trial court violated his right to counsel by

failing to inquire into his mental state before allowing him to proceed pro se,

Monterrosa points to no Supreme Court precedent establishing that a court has

such an affirmative duty. Moreover, other than vague references to “the record”

and transcripts, Monterrosa points to no evidence that he was mentally incompetent

to effectuate a valid waiver of his right to counsel. Thus, Monterrosa can establish

neither that the trail court’s failure to inquire into his mental state violated his

constitutional rights nor that his mental state rendered invalid his waiver of the

right to counsel.

       AFFIRMED.




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