Joseph Duran v. Matthew Cate

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…

Dissenting opinion filed by Circuit Judge TALLMAN.

ORDER

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 , 95 S.Ct. 2525 , 45 L.Ed.2d 562 (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…

dissenting:

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 *844 against them.... ” Becker v. Martel, 472 Fed.Appx. 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…