Franco Lopez, A/K/A Eduardo T. Hernandez v. S. Frank Thompson, Opinion

McKEOWN, Circuit Judge: question before us is whether Fran- co Lopez knowingly and intelligently waived his right to assistance of counsel at sentencing in accord with Faretta v. Cali- fornia, 422 U.S. 95 S.Ct. (1975). L.Ed.2d 562 Resolution of this question requires us to consider two im- portant, and often competing, constitution- rights al applicable ato criminal proceed- ing: the right to assistance of counsel and correlative to waive assistance of counsel. Under the of circumstances case, which included two hearings and a waiver, written we conclude that Lopez did knowingly and intelligently waive his to counsel and self-representation.1 choose We thus affirm the district court’s denial Lopez’s petition for writ of habeas cor- pus brought under 28 § U.S.C. 2254. BACKGROUND AND PRIOR PROCEEDINGS This case originated in state court in Multnomah County, Oregon, and stems from Lopez’s sexual assault of the 11- year-old daughter of a woman with whom he was living. Represented by counsel, Leland R. Berger, Portland, OR, Lopez pe- pleaded no-contest to three counts titioner-appellant. of sodomy in the first degree and one count of sex abuse Richard D. in Wasserman, the first degree. Assistant Attor- ney General, Two hearings Salem, OR, plea hearing for respondent- and the —the appellee. hearing Lopez’s on motion to remove coun-

sel—as well Lopez’s written waiver of counsel bear on this appeal. Hearing

Plea At plea hearing on October HUG, Before: Chief Judge, Lopez was represented by attorney Wil- WALLACE, REINHARDT, BRUNETTI, liam Brennan. Judge Haas apprised Lo- FERNANDEZ, NELSON, T.G. pez of the charges, possible prison KLEINFELD, HAWKINS, TASHIMA, terms and fines for count, each and the SILVERMAN, and McKEOWN, Circuit possibility probation. Lopez indicated Judges. that he understood: Opinion by Judge McKEOWN; The Court: The charges against you are Concurrence by Judge WALLACE; sodomy the first degree, two counts; Dissent by Judge TASHIMA. sex abuse in the first degree; sodomy in panel 1. A of this Circuit earlier reached the withdrawn reh'g granted, en banc same granted conclusion. We rehearing en 1999). F.3d 1160 Cir. banc. v. Thompson,

1H3 a recommendation they-make nation of these one Each degree. first a sustained you have or not years imprisonment punishable treat- offender dangerous minimum. year potential a ten with prison the Court do[,] on $100,000 fine that means you If is] a Further, ment. [there you abuse sex can sentence them count one each by five Cor- punishable State degree years first maximum mini- year half understand you two Do years Division. rections sen- Those fíne. $100,000 ease. in this mum issue is an That that? they concurrent run could tences understand, sir. Lopez: Mr. them Some consecutive. run could Honor, Your Attorney: District Deputy peniten- be sentenced could potential ais there we indicate should on placed be could you others and tiary on that? minimum year that? understand youDo probation. year is a There Yes. The Court: sir. Yes Lopez: Mr. also. that on minimum attor- deputy district the hearing, At the clarification, the for Just Brennan: Mr. seek a state would the that ney advised that is [Lopez] toit explained way I The charge.2 offender” “dangerous year the of one enhance would charge a if such Lopez that to explained ten from and to 30 from sentences ex- would psychiatrist then sought, were if minimum 15 year ato minimum year he to recommend him amine dangerous him to find were the Court offend- dangerous as a be classified should if. offender, only the judge, involving colloquy er. In Brennan, Lo- attorney, and Yes.... district The Court: deputy aas classified if he were was told pez one Counsel on offender, sentence to Remove his Motion Hearing on dangerous 10- range from increase would count later, on November days Eight Again, years. 15-30 range ato years judge, a different before appeared Lopez understood: he acknowledged that Lopez The hearing. Roth, another for Judge Does Attorney: District Deputy motion Lopez’s hearing was subject of dangerous aof to advise need Court attor- fourth Lopez’s remove to Brennan — offender? counsel3-—as a succession ney to down Yes, getting I am Court: The sentencing proceeding. counsel Attorney stated District The that. he desired to the Lopez insisted to reference do in going to arewe what hearing with- sentencing proceed I under- be—as will there is case this Brennan of counsel. representation out dismissal will it, there stand self-repre- Lopez’s against recommended right? is that charges, explained sentencing and sentation [sic] is There Attorney: District Deputy Lopez’s pres- court, in open Judge Roth a dan- seek would charges four offender dangerous determine ence, charge. only one on offender gerous Lopez evaluate would status, psychiatrists multiple. than Rather Brennan: Mr. reports testify submit either then than Rather Attorney: District Deputy judge: seeking consecutive. front of wereWe Brennan:.... Mr. a PSI await willWe The Court: entered [Lopez] Haas, Mr. Judge dangerous offender one seek they would underlying no-contest pleading offender dangerous On charge. 27th was Sentencing set case. that, they seek if happens charge, what fugitive to] the ...[;] [as November who a psychiatrist appoint I do second I believe matter exami- you gives you interviews successfully moved already had § 161.725. STAT. REV. OR. 2. See lawyers. previous three replace case down on your docket, ... Judge Lopez: Mr. I have some paralegal expe- Haas indicated that he would hear that rience, sir. matter at the conclusion of sentencing. Mr. [Lopez] has me informed that he Well, here, Court:

wants to fire me here’s prob- and would like to repre- lem[,] sent Mr. [Lopez]. himself. I know Mr. Bren- nan. Mr. Brennan is a Deputy lawyer and District he’s Attorney: honor, Your going to do the best he can inform for you.... the court the state is op- [Y]ou’vehad posed lawyers, other [;] ... change would not a lawyer make yourself. the fifth attorney And the for this defen- old say- is, ing dant: Mr. Levy, Ravio, even Mr. when a lawyer Mr. Ameras represents ..., himself, and Mr. Brennan have all has a fool been on for a client.... [S]o, case all just it have had doesn’t difficulty work too well. You got defendant.... to have legal advice and you got serious charges Court: What here. does he charges have? Deputy District Attorney: He Lopez: has a fu- Mr. I understand that. gitive matter and a number of Sodomy Brennan subsequently again interceded charges. with a recommendation that counsel be Mr. Brennan: He has three counts of appointed for Lopez: Sodomy in the First Degree ... and one Mr. Brennan:.... I do think he needs count of Sex Abuse in the De- First counsel ... and I would ask the court to gree .... [T]he District Attorney ... appoint someone else. At point this I would be recommending a dangerous of- there is a real between feel Mr. rift fender treatment on count, one one [Lopez] and myself. think, And I I’m count only. I have contacted Dr. Frank not sure what the outcome will inbe Collistro to evaluate Mr. [Lopez], That sentencing on this.... is in place, and Dr. also David Meyers would be ... evaluating Mr. Later in [Lopez], the hearing, as the judge was ... and the two would then inquiring submit their about whether he to rep- wanted reports to Judge Haas or testify himself, as the resent Lopez began talking about case may be on that issue. I really crimes he had committed in Texas. The think that Mr. [Lopez] would be better judge again advised Lopez about the dan- served having an attorney to assist gers of self-representation: him rather than representing him- The Court: Now I don’t want get to into self. ... the whole thing. Now all I want to do Judge Roth then turned his attention to is, Fm listening you uh, to uh, you Lopez, inquired about his background, and want to represent yourself? Is that told him that he should have legal advice: what you want? The Court:.... Mr. [Lopez],_ How Mr. Lopez: Well, if I Yes, have to. I old you? would. Mr. Lopez: years old, sir. The Court: What you do you mean The Court: And much how education do to? Now you’re having sort of second you have? Formal education. School- thoughts. ing. Mr. Lopez: No, no, now you’re if going Mr. Lopez: Schooling? put to it way, yes I will represent The Court: Yes. myself. is, The thing that, is your hon- Mr. Lopez: High School. or, this woman had hired me to murder The Court: Where? her husband and this is the information Mr. Lopez: El Paso, Texas. that I have withheld from my attorney The Court: Any law training all? and from the district attorney’s office.

1H5 toOr Haas. Judge sentencing before point at this [Lopez], Mr. Brennan: Mr. to I want say that pitch a real make silent. remain you advise I would to trial. go my plea withdraw ... Yes, this think I The Court: you under Do you are. That’s where you advise strongly I Brennan: Mr. s n that? stand record on the silent[;] going I’m remain Yes, sir. Lopez: Mr. that. you want Now, this Yeah, I ... The Court: now The Court: try to yourself represent to do my advice. Follow Brennan: Mr. of situation? type this handle record this I want Lopez: Mr. evidently out, Yes, this sir. put Lopez: want I Mr. because any- me representing you’re Alright. Court: .... more a written signed day, same On the representing I’m still Brennan: Mr. con- Attorney,” Right ‘YVaiver to withdraw. me allows until attorney understanding that firmed Mr. advising you Yes, I am The Court: him: help could yourself doing you’re [Lopez], witnesses, case, call 1) my Investigate just I just, down. all putting good evidence. obtain is the if uh, uh, [sic], now yea tell constitu- raise law 2) Research going [sic] your representation type of tional issues.... going your [sic] yourself, make proce- courtroom 3) explain Know neck. your around noose aput case, or argue my dures no putting I’m not Lopez:_ Mr. charge a reduced 4) bargain bringing neck, just Plea I’m my around noose Attorney. the District with is. sentence truth up what cautioned, “I understand only after also The waiver to a close hearing came The attorney, to right my times that, more six if I waive Lopez asked judge do to these himself will have help represent up to give wanted he whether Lo- granted import Judge Roth myself.” he understood things Brennan. warnings: to remove motion judge’s pez’s repre- to really want youDo Court: The Proceedings Other constitutional have a You yourself? sent counsel without appeared then Lopez aswell as yourself represent right held was hearing, which sentencing his lawyer. a to have right Lopez sentencing, At Judge Haas. before may. Yes, sir, if I Lopez: Mr. psychiatrist, . cross-examine not' did decision. your this Now Court: The offender dangerous performed who Yes. Lopez: Mr. con- was indicated evaluation, and fully been have you Now Court: The counsel. assistance needed fused advised. for request Lopez’s denied Haas Judge fully advised. I’m Lopez: Mr. offend- “dangerous a him counsel, declared serious have you know You Court: The years to 15-30 him er,” and sentenced plea. already entered You charges. three remaining On count. Uh, are. you where to know got you So con- Lopez sentenced counts, you let will probably Judge Haas 10-20, 10-20, sentences prison secutive You of no-contest. plea your withdraw 2 years. and 1/2-5 You sentencing. up coming are the Or conviction his appealed that. know affirmed Appeals, Court egon Yes. Lopez: Mr. Or. 106 Lopez, v. State opinion. without couple You Court: (1991). appeal No 881 776, P.2d 810 App. strong pitch make remedies Supreme Court. Oregon taken was up come you when argue when 1116 Lopez later filed post-conviction relief ANALYSIS in Marion County, Oregon, but was denied We review de novo a district relief. The Oregon Court of Appeals af court’s grant order to or deny a petition firmed without opinion, Lopez Maass, v. for writ of habeas corpus.5 695, 128 McKenna v. Or.App. 877 (1994), P.2d 678 an McDaniel, 65 (9th the Oregon Supreme

d Cir. Court denied review. 1995). Lopez Maass, Whether waiver 320 Or. of the Sixth 883 P.2d 1303 (1994). right Amendment to counsel was made knowingly and intelligently is a mixed Lopez filed petition for writ of habeas question of law and fact that is also re corpus on February 28, 1995, inef- alleging viewed de novo. United States v. fective Robin counsel, assistance of violation of son, (9th his right Cir.1990); against Har double jeopardy, denial of ding Lewis, due process, denial of the Cir. 1987). counsel at Habeas sentencing. corpus relief district is appropriate court denied the petition, where the state adopting the magis- committed an error “ trate’s findings:4 that had a ‘substantial and injurious [ef ” The court fect or finds from a influence’ on review of outcome of the record that the trial court proceedings. peti- McKenna, advised 65 F.3d at 1490 tioner of the disadvantages and dangers (quoting Brecht Abrahamson, 507 U.S. of representing himself, and that peti- 619, 627, 113 123 L.Ed.2d 353 tioner understood the ramifications of (1993)). The state court’s factual findings proceeding without counsel. According- deference, entitled to § U.S.C. ly, the court finds petitioner’s waiv- and the district court’s factual findings are er of his to counsel was valid. reviewed for clear McKenna, error. On appeal, Lopez contends that F.3d at waiver of counsel at sentencing must be Also important analysis our is the examined “in the context of an Oregon posture of case, which comes to us on Dangerous Offender proceeding” and that collateral review of Lopez’s conviction in it was not knowing and intelligent because court, state not on direct review of a con- [a]t no time did Judge Roth specifically in viction federal district court. In this advise [him] that he could have a lawyer context, our inquiry is limited to whether assist him in deciding whether he want- Lopez was sentenced in violation ed to of the cooperate with the evaluation pro- United States cess[,] Constitution. See .... Smith v. that he could have lawyer Phillips, 209, 455 present 221, U.S. 102 during 940, the S.Ct. evaluation[,] .... 71 (1982) that he L.Ed.2d 78 had right the (holding that “[a] confront and federally cross-examine the issued doctor writ of performed who corpus habeas ... the .... reaches only evaluation^] [and] that convictions he had obtained in viola- the right to a lawyer have tion help him provision some with of the United States the difficult task of Constitution”). effectuating this con- Quoting from v. Cupp frontation right by effectively cross-ex- Naughten, 414 141, 146, U.S. 396, 94 S.Ct. amining the doctor. 38 L.Ed.2d (1973), 368 in Smith the Su- 4. panel As the stated, opinion 175 F.3d at 5. Lopez petition filed his 28, on February 1, 1124 n. magistrate 1995, determined prior 24, April to the 1996 effective date Lopez that had procedurally defaulted the of the Antiterrorism and Effective Death Pen- double jeopardy process and due claims and alty 1996, Act of 104-132, Pub.L. No. 110 rejected the ineffective assistance of counsel ("AEDPA”). Stat. 1214 Therefore, AEDPA’s right to counsel at sentencing claims amendments do not apply petition. to his the merits. The district court adopted the Murphy, 320, Lindh v. 323, 336, 521 U.S. 117 magistrate judge’s recommendations and dis- 2059, S.Ct. 138 (1997). L.Ed.2d 481 missed Lopez’s petition 18, on July 1997. The state did not raise the procedural issue of default before this court.

1117 doing and what he is “he knows lish that parameters articulated Court preme eyes open.” made with choice is his our review: may omitted). overturn (citations a federal court Before 95 2525 Id. at S.Ct. trial from a resulting state conviction Faretta, with our consistent applying In merely not it must be established ... not suggested, but authority, we undesirable, is action] the [State’s mandated, fed- procedure preferred “universally con- erroneous, even to follow: district courts eral right demned,” it violated some but that grant court should district [ A] defendant guaranteed which was representa request to waive defendant’s Amendment. by the Fourteenth his own and serve as tion of counsel 221, 102 Smith, 455 U.S. counsel, discussing with de without provides court, fendant, Amendment The Sixth whether open in ... enjoy shall intelligently “the accused knowingly waiver was Assistance Counsel have the made, understanding with CONST, VI. In amend. U.S. penalties, defence.” charges, possible cases, is enti felony a criminal This is self-representation. all by counsel at represented tled to be procedure and preferable clearly including prosecution, stages critical district courts be followed Rhay, v. 389 U.S. sentencing. Mempa See every case. 128, 134-37, 19 L.Ed.2d 88 S.Ct. Harris, 683 F.2d v. United States (1967). Sixth Faretta articulates (9th Cir.1982); United see also States waiver of for a valid requires

Amendment (9th 1097, 1099-1100 Farhad, Cir. is bench thus our right to counsel F.2d 1999); Balough, States United review of state on collateral mark (9th Cir.1987). 1485, 1488 question is no There proceedings. addition, arising cases In several Amendment had a Sixth Lopez imposed proce we have state court sentencing hearing. There at his counsel re on direct to our cases dure but cited had a correl no question is also Lewis, See, Harding v. e.g., view. of counsel right to waive assistance ative (9th Cir.1987); Snook Faretta, 422 U.S. himself. represent Cir.1996). Wood, 612-13 question 95 S.Ct. 2525. however, indicated, that this We have Lopez’s waiver must address is constitutionally re procedure particular met the Faretta standard: clarify posi our It now time to quired. de- manages his own an accused When cases. habeas respect state tion fense, purely factu- relinquishes, nor Faretta com Neither Constitution matter, bene- many of the traditional al spe engage in district court to pels the right to counsel. with the fits associated Because colloquy with the defendant. cific reason, represent in order to For this framework procedural impose cannot himself, “knowingly must the accused compelled courts unless on state relin- those intelligently” forgo wheth Constitution,6 not address we need Although a defendant quished benefits. was followed colloquy suggested er the expe- the skill and need not himself here. competently lawyer in order rience of analysis of the now turn to self-represen- We to choose intelligently if trial made to determine tation, record made aware of the he should be dangers and disad “aware self-repre- Lopez disadvantages of dangers and Id. self-representation.” vantages of sentation, will estab- that the record so wrongs of constitu- only to correct Smith, intervene S.Ct. 940 U.S. 6. See dimension.”). ("Federal supervisory authori- hold no tional courts may proceedings judicial ty state over 835, 95 S.Ct. 2525. conclude, We after force or effect. On the contrary, they reviewing the record as a including may have brought whole— home the point more the two extensive hearings held within clearly. For example, Judge Roth warned eight days of each other and the written Lopez, “if this is the type representa waiver—that the trial court fulfilled its your tion going [sic] to make for yourself, duty. Lopez “kn[ew] what he [wa]s do- your [sic] going to put a noose around ing,” and his choice was “made eyes your neck.” Although the court did not open” knowingly and intelligently —he list, bullet-style, the various disadvantages waived representation. Id. of proceeding without counsel, the court’s At plea hearing and the subsequent warnings nevertheless pow communicated hearing to counsel, remove his Lopez was erfully to Lopez the disadvantages pro informed of the nature the charges and se, ceeding pro all that Faretta proceedings against him, possible sen- requires. Faretta, See U.S. at tences that might be imposed (including S.Ct. 2525. United States v. Poynter, Cf. possible sentence enhancements), and the 489 F.Supp. 604, 605 (S.D.N.Y.1980) (“In dangers of self-representation. In addi- order to impress vast majority of de tion, Lopez was informed that psychia- fendants, talking plainly, with colloquial trists would testify at the sentencing expressions liberally interspersed, is an hearing on the dangerous offender issue. imperative.”). Finally, Lopez’s attorney and Judge Roth In context, the repeatedly court’s told comment Lopez that about he sig- faced the noose nificant dangers communicated if to Lopez he proceed chose to he was making without the very type assistance mistake counsel. Not- he withstanding might these suffer in other absence of warnings, counsel. Lopez persisted The judge’s in his desire to represent admonitions that, made clear himself; he even counsel, without acknowledged that he atwas a disadvan- was aware of potential pitfalls tage precisely self- because he did not under- representation. stand the intricacies of the proceeding.7 took care to ensure that Lo- In addition to the special persuasive pez meant what he said. At point one force of these verbal warnings, Lopez en- early in the colloquy at the second hearing, joyed the benefit of the waiver, written Lopez said he would represent himself “if which listed the advantages of counsel with I have to.” Recognizing that this response some specificity. On appeal, Lopez char- was equivocal, the judge proceeded to ask acterizes the written waiver as a “pre- Lopez six more times really printed boilerplate form” but does not represent wanted to himself and whether challenge its validity. Indeed, the waiver he understood the import of the judge’s was a general one, applying to the pre-trial warnings. Lopez answered affirmatively context, but most of its examples of the each time. The dialogue between the advantages of counsel pertain to sentenc- judge and Lopez concluded: ing well, as, such witnesses, “call Now, Court: is this want obtain evidence,” “[r]eseareh the law and to do represent yourself try to raise issues,” constitutional and “[k]now handle this type of situation? and explain courtroom procedures and ar- Mr. Lopez: Yes, sir. gue my case.” doWe not place undue The Court: Alright. emphasis on the written waiver but rather That some of the court’s regard admonitions it as one among many sup- factors were colloquial does not detract from their porting waiver. whole, As a then, 7. The extensive colloquy, admonitions, sermon, and judge then the was preaching to a pointed language can hardly be dismissed as knowing choir. Once informed of the conse- "judicial sermonizing” or "ritualistic quences, formu- Lopez certainly knew and under- la” suggested as by the dissent. If this was a stood the risks self-representation. him on the instructed Or- specifically ex- the verbal Faretta: satisfies record together would have demanded tute- egon the written waiver statute changes and court, [wa]s what a “kn[ew] the trial lage legal ensured advice made [wa]s “his choice doing” and that by Faretta. Far- result not countenanced 835, Faretta, 422 U.S. eyes open.” to imposes requirement no assess etta 2525. 95 S.Ct. mas- poorly defendant] or [a “how well of evidence and state tered the intricacies” argues that his Finally, Lopez 836, fact, 2525. In a law. Id. at 95 S.Ct. intelligent knowing not waiver was knowledge technical is “not defendant’s of his he should have been advised because knowing of his relevant an assessment Oregon Dan context of an “in the rights to defend himself.” right of the exercise and because proceeding” gerous Offender stated, recently Supreme Id. Court advise As “specifically did not Judge Roth duty no right judge provide to confront “the trial is under that he had the [him] performed who proce- the doctor on courtroom personal cross-examine instruction is without argument This the evaluation.” ‘chores’ for perform legal dure or announced con Although Faretta merit. normally counsel would the defendant that it self-representation, right stitutional carry Appeal v. out.” Martinez Court of litany formula to — specific mandated no 684, U.S.-, California, S.Ct. knowing that waivers counsel ensure (2000). assessing In 145 L.Ed.2d 597 intelligent. counsel, is re judge the trial waiver teaching Court’s Supreme under We heed to focus on the defendant’s quired analysis pragmat- counsel, must be that our waiver importance of the standing stage of “particular to the ic and directed of the understanding sub the defendant’s question”: in proceedings procedural or the details. law stantive ap- pragmatic have taken more [W]e “be is that defendant required What is question—asking to the waiver proach and disadvan dangers of the made aware at the lawyer can serve purposes a self-representation” and that the tages of in proceedings stage of the particular intelligently’ “‘knowingly he could what assistance question, and relinquished benefits.” Faret forgo those stage—to an accused at that provide to ta, Looking 95 S.Ct. U.S. at the Sixth scope determine whole, as a these record this case counsel, and the Amendment satisfied. requirements have been warnings procedures type of AFFIRMED. required a waiver of before recognized. will be WALLACE, concurring: Judge, Circuit 285, 298, 108 Illinois, 487 U.S. Patterson holding that majority’s concur (1988). This 101 L.Ed.2d intelligently chose Lopez knowingly mean, however, does not aware being made represent himself after defen lawyer for the surrogate serves disadvantages of self- of the here, the circumstances Under the dant. California, representation. See Faretta was the sen remaining proceeding 2525, 45 95 S.Ct. U.S. court directed hearing. The trial tencing (1975). that the I also concur L.Ed.2d 562 of counsel sen comments waiver its warnings were court’s Faretta district analysis our and likewise tencing “particular to the and directed pragmatic role on counsel’s one but is focused general pur- question” stage proceedings of the particular stage proceed [this] “at Illinois, 487 U.S. to Patterson suant Id. ings.” 285, 298, L.Ed.2d 261 108 S.Ct. specific no requires (1988). to cross- regarding admonition Eighth the Third and out that point hearing. sentencing at witnesses examine teachings, Circuits, following Patterson’s court should claim that Lopez’s And 1120 hold that Faretta warnings given Farhad, before Cir.1999), 190 1097, (9th F.3d 1098 sentencing do not have to be as - extensive denied, rt. -, U.S. ce 120 as given those at trial. — Citing Patterson, 1428, L.Ed.2d-(2000); Unit- the Eighth Circuit stated: “Sentencing ed Keen, States v. 104 1111, 1113(9th F.3d hearings . . demand much specialized less . Cir.1996); United States v. Springer, 51 knowledge trials; than instance, 861, (9th F.3d 863 Cir.1995); United States Federal Rules of Evidence do apply in Arlt, 41 (9th 516, F.3d 517 Cir.1994); sentencing hearings.” United States v. United States Krieken, v. Van 227, 39 F.3d Day, (8th 998 622, F.2d 626 Cir.1993); see (9th 229 Cir.1994); United States v. Mo also United Marks, States 1009, 38 F.3d hawk, 20 1480, (9th F.3d 1483 Cir.1994); (8th 1015 Cir.1994) (same). Similarly, the United Lorenzo, States v. 995 1448, F.2d Circuit, Third while acknowledging that (9th 1452 Cir.1993); United States v. Rob “sentencing is a critical and often times inson, 712, (9th 913 F.2d 713 Cir.1990); complicated part of the criminal process United Flewitt, States v. 874 669, F.2d that contains subtleties which may be be (9th 671-72 Cir.1989). Faretta warnings yond the appreciation of the average lay given before or at trial should be most person,” United Salemo, States v. 61 F.3d “rigorous.” Patterson, 487 298, U.S. (3d Cir.1995), 220 stated that Faretta 108 S.Ct. 2389. In other Ninth Circuit warnings given before sentencing “need post-Patterson eases, the Faretta inquiry not be as exhaustive and searching as simi was made at a time, different but our lar inquiry before the conclusion of trial.” review was no different than when the Id. at 219. inquiry was made before or during trial. The panel majority opinion in this case See Wood, Snook v. 89 F.3d 607-08 relied upon Day and Salerno to reject'Lo (9th Cir.1996) (during appeal); Moran v. pez’s narrow argument that, in its Faretta Godinez, 57 (9th F.3d Cir.1995) discussion, the state court should have spe (before entering plea); guilty Hendricks v. cifically explained to Lopez the nuances of Zenon, 993 (9th Cir.1993) psychiatric examination that would oc (appeal); United Fuller, States v. cur before the sentencing hearing and the (9th Cir.1991) (before entering possible need to cross-examine psychia guilty plea). However, Faretta warnings trists at the sentencing hearing. See Lo given at other times need not be rigor- pez v. Thompson, ous as given those at trial. Patterson, See Cir.1999), citing Salemo, 61 F.3d at 219- 298-300, U.S. at 108 S.Ct. 2389. 20; Pur- Day, 998 F.2d at 626. As a member of suant to Patterson and this en case, banc panel majority, I remain convinced of our circuit should now take into position. account A proper reading of Patter the stage in the criminal proceedings son would in the analysis result of the which a district court’s Third Faretta inquiry Eighth Circuits applica made in our review of

tion like cases, panel majority. whether on or direct collateral review. Despite the clear statement in Patterson Finally, I agree that the the majority disadvantages of self- we have no representation, habeas corpus power and the to desig- corresponding nate “preferred warnings procedures” that must given, depend upon state the stage courts of a to follow. criminal But in proceeding in which acknowledging rule, himself, finds the majority, the Ninth Cir- unfortunately, cuit has never, states until opinion, we have power varied its to designate approach preferred reviewing procedures Faretta cases after that federal district Patterson, on either direct courts are to collateral follow. I must disassociate review, upon based the stage myself in the crimi- from the majority opinion’s refer- nal In proceeding. most of post-Pai- ence to this court’s “authority” to establish cases, terson Faretta warnings given “preferred were procedure” for federal trial before or during trial. See United States courts to follow in applying Faretta. See

H21 open in defendant the with representation] for basis is the What at 1117. op. majority quite common- become now It has not court.” does opinion The “authority”? this the Balough and to to cite us As place exist. not it does I believe explain; cases. in Faretta procedure” perpetrate not “preferred court, should we banc en Farhad, it. at 1099. reject See, indeed, e.g., should we error; this the so- Cooley, in to emphasized procedure” As we “preferred specific The obviously “is procedure a somewhat preferred has called refers opinion the which mandatory. v. is not States and In admonitory” United history. convoluted (9th district Cir. The 182, 186 at 1252. F.2d F.2d Cooley, 501 486 Dujanovic, pre-Faretta inquiry a reviewing Faretta said, in their 1973), base we should courts himself: represent to outlined request standards defendant’s constitutional the upon re- by our minimal a less itself, guided bemay visualize and cannot We in Faretta shall is District Court or is inquiry the than level of quirement what as to decisions and waive counsel to request However, stating grant not error. not reversible the addressing without se pro proceed there are that implies procedure preferred determining on and personally accused erroneous not that are procedures other to waive the demand that record the them), but following (i.e., no reversal compe- is se pro proceed and counsel is procedure particular is that view our un- with made intelligently tently and Lewis, Harding v. See, e.g., preferable. charge the of nature the derstanding of Cir.1987); (9th Coo 853, 858-59 F.2d 834 involved. penalties the and authority? what By F.2d 501 ley, v. United Cooley in following year, rules authority prescribe no haveWe Cir.1974), also a (9th 1249 States, F.2d 501 courts for district procedures preferred or that case, emphasized we pre-Faretta other cases or to follow admonitory rather obviously “is statement III, sec Article Pursuant case. of type the proce While decision. rule than Constitution, judiciary’s the 2 the tion omis its may preferred, be described dure and controversies. cases resolve is role error, where se, not, reversible per is sion so, 46(b). doing In § 28 U.S.C. also See record whole from the appears it all from appeals “of jurisdiction we and insisted rights knew courts,” 28 the district 1252 decisions Id. final himself.” representing upon determine are Later, § omitted). States United U.S.C. (citation error Cir.1980), (9th not reversible or is is there Bird, 621 F.2d v. not, is trial role that the Our Faretta, decisions. “stressed final in those after proce preferred procedures preferred however, follow to dictate should” court do profes that failure acknowledged law become dure, but courts to the district How error. role Our se reversible best. per was we think so what opining sors Harris, F.2d v. Marbury ever, is,” States in United law say what “to Cir.1982), panel (9th 177, 2 Cranch) 137, (1 Madison, 5 U.S. procedure Dujanovic added), stated court (1803) (emphasis L.Ed. procedure preferable clearly “is district procedures” “preferred courts by district followed follow. courts should States United See also every case.” making with involved courts When (9th Cir. 996, 1005 Rylander, pursuant it occurs procedures, rules Ba States in United 1983). court Congress, from authority statutory clear Cir.1987), 1485, 1488 lough, comment, final- notice public “pre Harris, stating followed court. entire vote majority ly a waiver to ensure procedure ferred instance, Conference the Judicial For is for made intelligently knowingly rule recommends States United nature [the to discuss district Supreme States the United changes penalties, him, possible against charges approved refer then can Court self- disadvantages of changes to the Congress for its consider For all of reasons, these I disassociate ation. See 28 §§ U.S.C. 381, 2072. We myself from the suggestion that we have a can make local rules “for the conduct of chancellor’s foot over procedures Faretta business,” [our] § id. 2071(a), but those to be followed in the district court. An en rules apply only to this court and can banc court has never acknowledged that be made or amended public after comment power such exists until now. I believe this and by a majority vote of judges in regular en banc court has gone the wrong di- service, active § 2071(b); see id. Fed. rection: we reject misguided 47(a)(1), P. R.App. not a panel of three. practice. But whence comes the power of three or

eleven judges from this court to require TASHIMA, Circuit Judge, with whom district courts to follow self-generated Reinhardt, Circuit Judge, joins, dissenting: rules in the “preferred form of proce Because the majority, while paying lip dures”? service to Faretta v. California, 422 U.S. 95 S.Ct. (1975), L.Ed.2d 562

While our court is theoretically in the strips all meaning its requirement position best to rule on legal issues, we do waiver the Sixth not Amendment right have a similar better view for proce- to counsel must be “knowingly dure to be and intelli- followed the district court. gently” made, id. at Some I our judges have never been dis- respectfully dissent. trict court judges, and those who were become distanced from their district court The Faretta colloquy, far from demon- experiences year by year. Institutionally, strating petitioner’s waiver was know- a court of appeals panel is not in the best ing and intelligent, shows that the trial position to make pronouncements of “bet- court’s admonitions nothing had to do with ter procedures”: that should be left to the the proceedings petitioner faced, but courts, district which interact with litigants amounted to no more than truisms and and counsel face, face to day by day, as- judicial sermonizing, if you homilies— suming that procedures they use satis- will—without any regard for the particular fy constitutional and statutory require- predicament petitioner faced.1 What the job ments. Our is to ensure latter, trial court petitioner told at the Faretta prescribe the former. hearing2 that, was by representing himself, agree 1. I with Judge Wallace that stage only purpose of which was to enhance the proceeding at which the Faretta inquiry is petitioner’s by sentence percent, a far made is relevant to analysis. our And the specific more warning required. was stage at which the defendant asserts his Faret- ta right is relevant to the content of the Faret majority also plea relies on the hearing warning. ta Illinois, See Patterson v. 487 U.S. to bolster its contention petitioner’s waiv- 285, 298, 108 S.Ct. 101 L.Ed.2d 261 er of counsel was knowing intelligent. (1988). "dangers and disadvantages of While that colloquy may have been sufficient self-representation” are, extent, ato certain to sustain guilty plea, that, alia, inter specific. content he disagree, however, was informed possible Judge maximum that, sen- Wallace’s result, conclusion as a faced, tence that he warnings included a danger- sentencing for proceedings enhancement, ous offender do not have to be as nowhere extensive given as those plea colloquy at trial. did the Judge While inform Wallace’s him of observations may dangerous be correct insofar as the offender proceeding run-of-the-mill en- sentencing proceedings concerned, tailed. Nor did the court ever not all any make sentencing proceedings connection can be between ge treated regard- information nerically the ing plea same. Surely, even majority self-represen- agree tation, would given that more of a warning even must be a reference back capital to a colloquy. who earlier seeks to Plea colloquys serve an en- represent himself sentencing tirely than to a de purpose different than Faretta warnings fendant in ordinary So, too, case. in this and tell a defendant nothing regarding the case, which involved an evidentiary hearing, nature of post-plea proceedings.

H23 potential “a sustained had just petitioner “it client;” that fool ha[d] “he treatment,” whatever offender dangerous “had well;” and that too work doesn’t not informed was He means.4 serious got and advice legal have counsel of advice for the need to and on, court the later And here.” charges examina- psychiatric the with connection to “going he was that petitioner advised present be could counsel tion, whether ma- The neck.” your around a noose put and, examined, impor- most he was when re- court the trial that emphasizes jority exam- to cross the he had that tantly, (more six than petitioner asked peatedly of- dangerous the at psychiatrist ine the represent to times) he wanted whether Or.Rev.Stat. See hearing.5 fender not, any does repetition But himself. hearing (“At 161.735(5) presentence the § the sermonizing, fulfill judicial than more the defendant attorney the district inform to Faretta under obligation court’s psycholo- or psychiatrist may question and dis- “the what petitioner the pursuant defendant the examined who gist are. self-representation” of advantages offend- section.”) dangerous At the to this Id.3 acknowledges, majority the as hearing, er offender dangerous Oregon’s Under psy- the cross-examine not “did petitioner A of Class convicted statute, a defendant of- dangerous the chiatrist, performed who enhanced sentence his have felony can he that evaluation, indicated fender defen- the that finds court if “the years at 1115. op. Majority was confused....” personality severe suffering from is dant at this counsel asked fact, again he In toward propensity indicating disorder Id. point. life or the endanger seriously that crimes type faced with defendant aWhen Or.Rev.Stat. another.” of safety counsel, Faretta the waives proceeding of informed not 161.725(1). was Petitioner § “the of informed he be that requirement would that proceeding of the nature the of self-repre- of disadvantages dangers and offender dangerous the under place take ishe what knows “he sentation,” that so exam- he would statute, than other eyes with is made his choice doing amake would who psychiatrist aby ined 835, 95 S.Ct. at 422 U.S. open,” wide of the court recommendation tell must court trial what the of question defendant, the alone repetition 3.Fearing that truisms below, the and, explain as attempts the suffice, majority also the might not unequivocal. is in Faretta by set out warning obligation inadequate clearly the to defend of coun- id. that, assessing waiver See arguing ”[i]n the to focus required sel, judge is trial the importance understanding the less-than-crystal-clear of meaning defendant’s of 4. understanding counsel, defendant's under- not the an accurate not is phrase, which de- procedural or the law dan- of a purpose substantive the summary the standable doing, the In so op. at 1119. Majority tails.” further was not proceeding, gerous offender first, issues: separate two confuses majority petitioner. explained defendant ask must the trial court what rights; and Faretta assert his who seeks hearing, besides fact, at his In tell tell second, must court what proce- importance that the fact correct majority is defendant. pro- dangerous offender involved dures into the inquire required to court trial may unmentioned, petitioner ceeding were de- competent put on a ability to defendant’s court affirmatively misled been have assertion determining whether fense "You options were: remaining his voluntary. knowing and right is his Faretta amake toas remedies couple of only a have ("a Faretta, S.Ct. at 422 U.S. See you come argue when pitch when strong skill himself need not toOr Judge Haas. sentencing before up competently lawyer in order aof experience with- I want say that pitch to real amake self-representa- to choose intelligently and tion”); was He go to trial.” plea my draw ("[The defen- id. "remedy,” or important most of his informed knowledge, as such legal technical dant’s] cross-examina- effective option vigorous assessment — relevant was not of- dangerous psychiatrist of the tion him- right to defend knowing exercise hearing. fender however, nothing to do This, self.”). has can only be met by informing him of the to inform one in petitioner’s position of nature of proceeding. case, In this the what he faced or what he was waiving. It should, minimum, at a have told the obviously intended for a waiver made at defendant that the purpose of proceed- the beginning case, of a for a defendant ing was to determine whether he suffers who then intends to go to Further, trial. from “a severe personality disorder” of the nothing in the record indicates peti kind 161.725, § described in that he would tioner it read before he signed or, it even if be examined by one or more psychiatrists did, that he understood it. And nothing appointed by the court for that purpose, in the record discloses that petitioner’s that an evidentiary hearing would then be attorney, court, the or anyone else ex held at which the psychiatrist(s) would be plained petitioner what the words on the examined the district attorney to estab- boilerplate form signified. The failure to lish that he has such a personality disor- inquire in open court about the circum der, and he that had right the to cross- stances under which petitioner’s signature examine those psychiatrist(s). Further, on the waiver form was obtained fatally the defendant should be informed that undercuts the majority’s reliance on it. cross-examining a psychiatrist on his or See v. Thompson, 175 1120, expert her opinion is a highly complex and (9th Cir.1999) 1129 n. 2 (Kozinski, J., dis technical exercise which requires the senting) (citing United v. States Balough, cross-examiner to be in well-versed both 1485, 1488(9th Cir.1987)). law and psychiatry, and of the consequent end, In the the majority’s “dangers and reliance on an disadvantages” of lay per- a inappropriate boilerplate son form, attempting to plea do the so. Petitioner was colloquy, and told the trial none of these court’s things, hoary admo- other than that nitions he about would subject self-representation, be to a psychiatric none of exami- which nation. addressed or waiver, His informed petitioner context, could what the “dangers have and been knowing and disadvantages” he intelligent. faced by Although he may representing himself at been the dan- told that it gerous was dangerous offender were, and proceeding disadvantageous cannot proceed withstand counsel, scrutiny. without The he was majority’s ap- not told proach what also those dangers casts aside the “pragmatic ap- disadvantages were, proach” the Faretta requires.6 Supreme says Court should be taken in assessing a waiver of the Sixth Finally, the majority also relies on a right Amendment to counsel: boilerplate “Waiver of Right to Attorney” signed by petitioner. A cursory review of Instead, we have taken a more pragmat- the form discloses that it was not intended ic approach to the question-ask- waiver 6. majority The wrongly equates informing the is under an unambiguous duty to make the defendant what dangers the and disadvan- defendant aware of "the usefulness of counsel tages are "tutelage with legal advice," to the accused particular at the proceeding, and mistakenly assumes that the trial court's ... proceeding of without obligation to make the defendant "aware of Patterson, counsel.” 298, 487 at U.S. facts,” the[ ] basic Patterson, 487 U.S. at S.Ct. added). 2389 (emphasis How judge 108 S.Ct. is tantamount to "require- can make a defendant aware of the usefulness ment to assess 'how poorly well or [a defen- of particular counsel at a proceeding without dant] mastered the intricacies' of ... state explanation some of the pro- nature of the law.” Majority op. at Although "the ceeding merely is one of many puzzles trial is duty tinder provide no person- posed by the majority opinion. al instruction on true vice procedure courtroom or to perform in the opinion any legal majority is 'chores' that it employs for the defendant that counsel out,” would ritualistic formulas in normally carry a wholly once mechanistic a defendant has asserted manner and his utterly fails self- examine how representation, those Appeal, Martinez Court rules apply practical in the circum- of -U.S.-, -, 120 S.Ct. stances -L.Ed.2d of this or specific, other real-life (2000) (citation omitted), the trial judge litigation. opinions of dozens published has court at serve can lawyer purposes what ing in both proceedings applying proceedings stage particular (citations omit courts.” state assistance federal question, have, added)). for ex ted) We (emphasis accused provide could United scope requirements applied ample, determine stage-to counsel, 1485, 1488 right.to Balough, Amendment States Sixth mistakenly procedures majority warnings Cir.1987), type waiver op. majority before required “suggestions,” insists recognized. aas matter right will be cases habeas in state 298, 108 law: Illinois, 487 U.S. constitutional Patterson (1988) (empha L.Ed.2d for determin- procedure preferable counseled Further, added). the Court sis made know- waiver ing of the scope ] the “define[ we should to discuss intelligently ingly assessment by pragmatic to counsel under- open accused to the of counsel usefulness possible charges, standing of the the dan and proceeding, particular at the self-repre- dangers and the penalties, without proceeding accused to the gers Dujanovic, v. States United sentation. right of his waiver accused’s An counsel. Cir.1973). (9th 182, 188 F.2d 486 made he is when ‘knowing’ to counsel a in such the defendant engage failure (emphasis Id. facts.” basic of these aware reversal, necessitate not does colloquy “made not Here, was added). petitioner reveals however, otherwise if the record result, As a facts.” basic of these aware Coo- waiver. intelligent knowing and a made.7 knowingly not was his waiver 1249, 1252 States, F.2d 501 v. United ley examining our closely Finally, without however, Cir.1974). exception, (9th This majority mis- the jurisprudence, United rarely invoked. be should “[bjecause we can- takenly concludes 1247, 1250 F.2d 591 Aponte, v. States on framework procedural a impose cir.1978). (9th Con- by the compelled unless courts state (9th Cir. 853 Lewis, F.2d 834 Harding the whether address stitution, need we Thus, added). under 1987) (emphasis here.” followed was colloquy suggested required was court trial Harding, the not, cases have 1117. Our op. at Majority or other procedure preferred the follow itself, im- simply than Faretta any more was waiver petitioner’s insure wise to frame- (or procedural a “suggested”) posed do did not so. It intelligent. knowing and Faretta, like courts. state on the work the apply Moreover, continued have we a state reviewed progeny, of its many in state requirement Balough/Harding procedures the and proceeding, cases. habeas years last 25 developed over [v. implement Hendricks in both simply forth set state cases rule and federal Cir.1993) (9th and ] Zenon, 664 mandate. F.2d 993 constitutional Faretta’s invoke “in order is that Balough than the more require cases Clearly, our represen to self Amendment See, Sixth acknowledge. willing majority (1) knowing must be: tation, request Farhad, 190 States e.g., United (2) unequivocal.” intelligent, curiam) Cir.1999) (per (9th 1097, 1101 “For Hendricks, F.2d at 993 direction, Court’s Supreme (“Following was recognize is that majority fails to remaining that "the majority states 7. The sentencing hear- ordinary, hearing,” run-of-the-mill sentencing no was the proceeding ex- hearing at general evidentiary one "analysis is not ing, but an its asserts par- pur- [this] 'at role adduced for counsel’s testimony on would is focused pert but ” Majority proceedings.' sentence stage determining ticular pose of Patterson, U.S. at 487 are sentenc- (quoting op. at 1119 percent based by 50 be enhanced 2389). there But finding. statutorily-required specific, hearings. What sentencing hearings ing waiver be made knowingly and task, intel- but, by barely acknowledging the ligently,’ petitioner must be aware of existence of the “dozens of opinions [our] the nature of the charges him, against applying Faretta to proceedings in both the possible penalties, and dangers federal courts,” and state id. at and disadvantages of self-representa- by its facile discussion them, it has tion.” Id. at 670. added confusion ambiguity to our Far- Wood, Snook v. (9th 89 F.3d etta jurisprudence. Cir.1996). The dissent to panel opin- ion summarized our Faretta jurisprudence well:

Although we’ve stopped short of articu

lating precise litany on

and disadvantages of self-representation, see Keen, United States v. Cir.1996), we’ve it made clear that must ensure “that the Lauren WALLIS, by through her defendant understood his or her ‘consti Guardian Litem, Ad Lynn Rebecca tutional to have lawyer perform [a] Wallis, Guardian Litem; Ad Jessie certain core functions and lawyer’s Wallis, by through his Guardian ” superior ability to handle them.’ Unit Ad Litem, William Wallis, Lawrence ed States Mohawk, Guardian Litem; Ad Lynn Rebecca (9th Cir.1994) (quoting United States v. Wallis; William Lawrence Wallis, Kimmel, 672 Cir. Plaintiffs-Appellants, 1982)). We’ve held that telling defen dant he will have to handle sentencing himself isn’t enough. See United States Mary SPENCER, M.D.; Candace v. Balough, 820 1486 n. Young, Ph.D.; Stecks; Rachel City of (9th Cir.1987). Nor is informing Diego; San City of Escondido; Child defendant that he’ll have to argue and Services, Protective A Division cross-examine Keen, witnesses. See Diego San County Department of So- F.3d at 1115. The judge here didn’t cial Services; Wells Gardner; Cathy even get specific. He told Lopez: McLennon; Caveda; Canela Susan “[E]ven when lawyer represents him Goulian; Goodall; Grace self, he has a Does fool client”; for a “[Y]ou’re through 300, Inclusive, going put a noose Defendants- your around neck”; Appellees. “you have ... to make a strong pitch when you argue.” If the colloquies No. 97-55579. in Balough and Keen were not sufficient to uphold the waivers, defendants’ United States Court of Appeals, exchange here, rich with aphorisms and Ninth Circuit. hyperbole but with no specific mention Argued and Submitted Nov. 1998. of a lawyer’s functions,” “core is certain ly not. Filed Sept. 1999. Lopez v. Thompson, 175 F.3d at 1128-29 Amended Feb. (Kozinski, J., dissenting).

As an appellate intermediate court,

have the obligation faithfully to apply Far-

etta and give it meaning, regardless of

our views as to its Farhad, wisdom. See

190 F.3d at 1100-01; (Rein- id. at 1101-02

hardt, J., concurring specially). Unfortu-

nately, the majority fails

Case Details

Case Name: Franco Lopez, A/K/A Eduardo T. Hernandez v. S. Frank Thompson, Opinion

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 4, 2000

Citation: 202 F.3d 1110

Docket Number: 97-35837

Court Abbreviation: 9th Cir.