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United States v. Herrera

June 2, 2009

UNITED STATES OF AMERICA, PLAINTIFF,
v.
CENOBIO HUMBERTO HERRERA, SR., DEFENDANT.



The opinion of the court was delivered by: Honorable Ronald S.W. Lew Senior, U.S. District Court Judge

ORDER RE: (1) DEFENDANT'S REQUEST TO REPRESENT HIMSELF; AND (2) DETERMINATION PURSUANT TO AMELINE REMAND

Defendant's Request to Represent Himself

First, with respect to defendant's request to represent himself for purposes of the limited remand ordered in United States v. Herrera, 219 Fed. Appx. 686 (9th Cir. June 23, 2007), and as ordered by the Ninth Circuit in its February 23, 2009 Order (in Case No. 08-50138), the Court has conducted a hearing as required by Faretta v. California, 422 U.S. 806 (1975). The Court has reviewed all of the relevant materials in the case file, including Defendant's "Substitution of Attorney and Declaration of Defendant Cenobio H. Herrera, Sr. as Acting in Propria Persona, Sui Juris [Pro Se] Motion" (CR 265); Defendant's counsel's "Reply to Court's Order dated August 3, 2007 Re: Joint Status Report, Request to Be Relieved as Counsel of Record for Defendant Herrera" (CR 267); the Court's August 31, 2007 Order (CR 268); the Government's "Request for Hearing as to Remand Order" (CR 318); Defendant's "Petition for Review of Order Pursuant to FRAP 15" (CR 320); Defendant's "Motion for Appointment of Counsel after Remand from the Ninth Circuit" (CR 322); and Defendant's "Motion to Withdraw Motion to Appoint Counsel" (CR 329). The Court has heard from counsel for both parties, as well as from Defendant, at hearings on May 8, 2009 and May 20, 2009. Moreover, the Court has had the opportunity to observe Defendant's behavior on numerous previous occasions, including during a previous sentencing hearing at which Defendant sought, for a time, to represent himself.

Having considered all papers submitted, all arguments made, and the colloquies with counsel and Defendant, the Court hereby FINDS AS FOLLOWS:

1. At the May 20, 2009 hearing, Defendant stated unequivocally that he wishes to represent himself.

2. The Government advised Defendant, orally and in writing, regarding the nature of the charges for which Defendant was convicted. Defendant stated that he understood this information, and still wished to represent himself.

3. The Government advised Defendant, orally and in writing, regarding the possible penalties for the offenses, including stating the statutory maximum terms of imprisonment and the applicable mandatory minimum terms of imprisonment, supervised release, fines, restitution, and special assessments and personal ineligibility and reduced family eligibility for certain state benefits and food stamp benefits. The Government also advised Defendant regarding the actual sentence previously imposed by the Court. The Defendant stated that he understood this information, and still wished to represent himself.

4. The Court advised Defendant regarding the dangers and disadvantages of self-representation, both generally, and specifically in relation to the current limited Ameline remand. The Government also provided this information to Defendant in writing, which Defendant stated that he had received and reviewed. The Defendant stated that he understood this information, and still wished to represent himself.

5. The Court further advised Defendant of the Rules of Procedure and Courtroom protocol that the Court intended to follow with respect to the remaining Ameline remand procedures. The Government also provided this information to Defendant in writing, which Defendant stated that he had received and reviewed. The Defendant stated that he understood this information, and still wished to represent himself.

6. Defendant's request is timely, and not made for purposes of delay.

7. Defendant's request to represent himself is knowing, voluntary and intelligent.

8. Defendant is literate, competent, and capable of representing himself in this matter.

9. At the May 20, 2009 hearing, Defendant signed a waiver of the right to counsel, which the Court now makes a part of the record in this matter.

ACCORDINGLY, THE COURT ORDERS THAT Defendant may represent himself for purposes of the limited remand ordered in United States v. Herrera, 219 ...


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