Sandoval

Opinion by Judge SCHROEDER; Dissent by Judge FISHER

ORDER

The Brief of Amici Curiae is ordered filed.

The majority opinion filed November 11, 2000, is amended as follows:

At 231 F.3d 1140, 1145 , delete the last paragraph under “APPLICABILITY OF AEDPA” and insert the following paragraph: ‘We also reject the State’s argument that Ortiz v. Stewart, 149 F.3d 923 (9th Cir.1998), cert. denied, 526 U.S. 1123 , 119 S.Ct. 1777 , 143 L.Ed.2d 806 (1999), requires us to apply the substantive changes wrought by AEDPA to Sandoval’s habeas petition. Because Sandoval filed his section 2254 petition in the district court prior to the enactment of AEDPA, pre-AEDPA law governs his right to relief in the trial court. See Slack v. McDaniel, 529 U.S. 473, 486-87 , 120 S.Ct. 1595, 1605 , 146 L.Ed.2d 542 (2000).”

At 231 F.3d 1140 ,1154 delete the second paragraph under the heading “DENIAL OF LEAVE TO AMEND”, and add the following sentence to the end of the first paragraph under that same heading:

“We have reviewed the record and find no abuse of discretion by the district court. See Bonin v. Calderon, 59 F.3d 815, 845-46 (9th Cir.1995).”

At 231 F.3d 1140 , 1151, delete the second full paragraph…

dissenting in part:

I agree with all of the majority opinion, except its resolution of Sandoval’s self-representation claim. I, too, believe that, by necessity, the Sixth Amendment right to self-representation is looked upon as the weaker corollary of the Sixth Amendment right to counsel. In this case, however, we are not called upon to determine whether this somewhat disfavored right was asserted in the first instance (thereby foregoing the all-important right to counsel); rather, we must decide whether Sandoval waived *781 his constitutionally protected right of self-representation once it was asserted.

Even if waiver under such circumstances is accomplished more easily than is waiver of the otherwise self-executing right to counsel, a finding of waiver calls for a, fact-specific inquiry. The cases relied upon by the majority teach us this lesson. For example, in Brown v. Wainwright, 665 F.2d 607 (Former 5th Cir.1982) (en banc), the defendant’s Sixth Amendment claim was denied after an evidentiary hearing had been held and all of the facts had been considered by the district court. See id. at 616 (Garwood, J., concurring) (“I wish ... to emphasize that following an evidentiary…