                                                                                   FILED
                                NOT FOR PUBLICATION                                 APR 30 2012

                                                                                MOLLY C. DWYER, CLERK
                         UNITED STATES COURT OF APPEALS                          U.S . CO U RT OF AP PE A LS



                                 FOR THE NINTH CIRCUIT



 JOSEPH P. BECKER,                                     No. 11-55749

              Petitioner - Appellee,                   D.C. No. 3:10-cv-01209- AJB

  v.

 M. MARTEL,                                            MEMORANDUM*

              Respondent - Appellant.

                         Appeal from the United States District Court
                            for the Southern District of California
                        Anthony J. Battaglia, District Judge, Presiding

                                     Submitted April 13, 2012
                                       Pasadena, California

Before: SILVERMAN and RAWLINSON, Circuit Judges, and TUNHEIM, District Judge.**

       Warden M. Martel appeals the district court's partial grant of inmate Joseph Becµer's

28 U.S.C. y 2254 habeas petition. We review de novo, Eslaminia v. White, 136 F.3d 1234,

1236 (9th Cir. 1998), and reverse.

       The California Court of Appeal held that the trial court did not need to re-advise

Becµer of his right to counsel following the addition of further charges against him. Becµer is


        *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
              The Honorable John R. Tunheim, U.S. District Judge for the District of
Minnesota, sitting by designation.
not entitled to habeas relief because that decision was not 'contrary to' or an 'unreasonable

application of clearly established Federal law as determined by the Supreme Court of the

United States,' nor was it 'based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.' 28 U.S.C. y 2254(d)(1)-(2).

       A criminal defendant may proceed without counsel 'when he voluntarily and

intelligently elects to do so.' Faretta v. California, 422 U.S. 806, 807, 835 (1975) (holding

that a defendant 'should be made aware of the dangers and disadvantages of self-

representation' to equip him to maµe the self-representation decision 'with eyes open')

(internal quotation marµs omitted). Some courts have extended Faretta's 'voluntary and

intelligent' waiver requirement to require re-advisal of the right to counsel following a

substantial change in circumstances. See, e.g., United States v. Fazzini, 871 F.2d 635, 643

(7th Cir. 1989). The Supreme Court, however, has not squarely addressed whether a

substantial change in circumstances requires re-advisal of the right to counsel. '[W]hen a

Supreme Court decision does not squarely address the issue in the case or establish a legal

principle that clearly extends to a new context . . . it cannot be said, under AEDPA, there is a

clearly established Supreme Court precedent addressing the issue before us[.]' See Moses v.

Payne, 555 F.3d 742, 754 (9th Cir. 2009) (internal quotation marµs, alterations, and citations

omitted).


       In the absence of a Supreme Court decision squarely addressing the issue, the question

is whether the state court's decision involved an 'unreasonable application' of the law. 28


                                               2
U.S.C. y 2254(d)(1); see also Moses, 555 F.3d at 754 ('If the Court's decisions do provide a

'controlling legal standard,' . . . the question is then whether the application of that standard

was objectively unreasonable . . . .') (quoting Panetti v. Ïuarterman, 551 U.S. 930, 953

(2007)). 'It is not an unreasonable application of clearly established Federal law for a state

court to decline to apply a specific legal rule that has not been squarely established by this

Court.' Harrington v. Richter, 131 S. Ct. 770, 786 (2011). Because the 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, the

California Court's decision was not unreasonable.1


       The district court therefore erred in granting habeas relief. See Wright v. Van Patten,

552 U.S. 120, 126 (2008) ('Because our cases give no clear answer to the question presented,

let alone one in [petitioner's] favor, it cannot be said that the state court unreasonably applied

clearly established Federal law.') (internal quotation marµs and citations omitted).


       REVERSED.



       1
         Moreover, state courts have significant leeway in applying general rules, such as
Faretta's requirement that waiver be 'voluntary and intelligent.' See Harrington, 131 S. Ct.
at 786. The California Court of Appeal's application of Faretta was not unreasonable under
the circumstances because the record amply supports its conclusion that Becµer remained
cognizant of his representation rights throughout the proceedings. For example, Becµer
received documentation reflecting the additional charges and potential penalties, participated
in proceedings where the facts underlying the charges were manifestly in issue, reasserted his
desire to represent himself immediately prior to the first trial, and expressly stated to the jury
in closing arguments that he could have had an attorney appointed, but chose not to.

                                                3
                                           FILED
Becµer v. Martel, Case No. 11-55749         APR 30 2012
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO U RT OF AP PE A LS

     I concur in the result.
