The opinion of the court was delivered by: Hayes, Judge
The matter before the Court is the Report and Recommendation (ECF No. 48) of Magistrate Judge Ruben B. Brooks, recommending that the Court grant in part and deny in part Petitioner Joseph Alfonso Duran's First Amended Petition for Writ of Habeas Corpus ("First Amended Petition") (ECF No. 15) and deny Petitioner's request for an evidentiary hearing.
In 2004, Petitioner was charged in San Diego County Superior Court with carjacking, robbery, the unlawful taking and driving of a vehicle, and buying, receiving, concealing, selling, or withholding a stolen vehicle. During the pendency of his case, Petitioner sought to represent himself. At a hearing on October 28, 2004, the trial court asked Petitioner to fill out an "Acknowledgment Concerning Right to Self-Representation" form pursuant to People v. Lopez, 71 Cal. App. 3d 568 (1977).*fn1 (Lodgment No. 1 at 19). Paragraph two of the form identifies "[t]he maximum punishment(s) that can be imposed upon conviction for the offense(s)." Id. The first figure that appeared in paragraph two of the form was "9y." Id. The "9y" was crossed out and replaced with "18 years." Id. The "18" was crossed out and replaced with "20." Id. The final version, which Petitioner and the trial court signed, stated "20 years." Id.
Petitioner represented himself at trial. On February 4, 2005, the jury convicted Duran of carjacking, robbery, and the unlawful taking and driving of a vehicle. The jury found him not guilty of buying, receiving, concealing, selling, or withholding a stolen vehicle. Petitioner admitted convictions for assault with a deadly weapon on May 26, 1999, and theft of a firearm on March 1, 1991. Petitioner admitted two strikes and two prison priors, including one violent prison prior.
The trial court ultimately sentenced Petitioner to 35 years to life in state prison. Petitioner appealed his conviction to the California Court of Appeal. On January 16, 2007, the court of appeal affirmed Petitioner's conviction.
Petitioner filed a petition for review in the California Supreme Court. On March 30, 2007, the supreme court summarily denied his petition.
On February 26, 2008, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court. On October 16, 2008, the petition was summarily denied.
On March 6, 2008, Petitioner filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 in this Court. (ECF No.1).
On December 9, 2008, Petitioner filed the First Amended Petition. (ECF No. 15). Petitioner asserts four grounds for relief. In ground one, Petitioner contends the prosecutor failed to disclose material, exculpatory evidence in violation of his discovery obligations, and the trial judge abused his discretion by denying Petitioner's motion for a new trial. In ground two, Petitioner contends that (a) the trial judge abused his discretion by failing to order a competency hearing or otherwise evaluate Petitioner's competency, and (b) Petitioner's waiver of the assistance of counsel was not knowing and voluntary because he was not informed of the maximum penalties he faced. In ground three, Petitioner contends that he received ineffective assistance of counsel prior to, and after, his self-representation, and that the trial court erred by failing to address his claim of ineffective assistance of counsel raised in his motion for a new trial. In ground four, Petitioner contends that the trial court improperly admitted evidence regarding the use of a firearm, when that allegation had previously been dismissed from counts one and two.
On March 25, 2009, Respondent filed an Answer. (ECF No. 24).
On November 24, 2009, Petitioner filed a Traverse. (ECF No. 43). In the Traverse, Petitioner requested an evidentiary hearing.
On October 22, 2010, the Magistrate Judge issued the Report and Recommendation. (ECF No. 48). The Magistrate Judge recommended that (1) the First Amended Petition should be granted as to the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under Faretta v. California, 422 U.S. 806 (1975); (2) the First Amended Petition should be denied as to all other claims; and (3) Petitioner's request for an evidentiary hearing should be denied. With respect to the Faretta claim, the Magistrate Judge stated:
Williams v. Taylor[, 529 U.S. 362 (2000)], Carey v. Musladin[, 549 U.S. 70 (2006)], and Van Tran v. Lindsey[, 212 F.3d 1143 (9th Cir. 2000)] convince this Court that Respondent's contention that 'advice as to penalty is not a requirement imposed by any United States Supreme Court decision,' interprets Faretta too narrowly. Duran's case is not one where potential penalties were not addressed. Here, there was a material misstatement of ...