Leyva

MEMORANDUM *

Hector Sanchez Leyva appeals the denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . He was convicted in 1996 of twenty-two counts of lewd acts with a child under the age of fourteen in violation of California Penal Code § 288, which he challenges on the ground that one of two prior convictions for sex crimes used to enhance his sentence was unconstitutional. We affirm.

Leyva’s federal petition is governed by 28 U.S.C. § 2254 as amended by the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA) because it was filed after April 24, 1996. Under AEDPA, habeas relief is not available unless the state court decision is contrary to, or involved an unreasonable application of, clearly estab *2 lished Supreme Court holdings at the time the state court decision was rendered and in light of evidence presented in the state court proceeding. 28 U.S.C. § 2254 (d); Lockyer v. Andrade, 538 U.S. 63 , 123 S.Ct. 1166, 1172 , 155 L.Ed.2d 144 (2003); Garvin v. Farmon, 258 F.3d 951, 954 (9th Cir.2001) (quoting Williams v. Taylor, 529 U.S. 362, 412 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)).

Levya’s sentence was enhanced in part for a 1958 rape…

dissenting.

I respectfully dissent. Well before Leyva’s 1958 conviction, the Supreme Court had established that a defendant cannot give a knowing waiver of his right to counsel when pleading guilty unless he understands “the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the whole matter.” Von Moltke v. Gillies, 332 U.S. 708, 724 , 68 S.Ct. 316 , 92 L.Ed. 309 (1948). The 1972 state court decision that Leyva’s - waiver was knowing and voluntary was based on an unreasonable application of clearly established Supreme Court law in light of the evidence presented at the state court evidentiary hearing.

The majority rests its decision on the fact that the 1972 hearing found the testimony of the trial judge from the 1958 proceedings to be credible. However, the trial judge only testified that he believed Leyva “understood everything that was going on.” He did not provide any affirmative evidence that anyone, at any point, explained to Leyva the consequences of pleading guilty or the nature…