                                                                            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


                                           1
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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