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Keith Hugh Jensen v. Robert J. Hernandez

March 30, 2012

KEITH HUGH JENSEN, PETITIONER,
v.
ROBERT J. HERNANDEZ, RESPONDENT.



ORDER

Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Petitioner challenges a judgment of conviction entered against him on December 17, 2003 in the Sacramento County Superior Court on charges of spousal rape with force, false imprisonment, misdemeanor spousal battery, and making terrorist threats. Petitioner raises nineteen separate claims for federal habeas relief. Upon careful consideration of the record and the applicable law, and for the reasons set forth below, the undersigned will conditionally grant petitioner's application for a writ of habeas corpus on his claims of Faretta error and that his appellate counsel rendered ineffective assistance in failing to raise the Faretta error on appeal, and will deny the application in all other respects.

BACKGROUND

I. Factual Background

In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal*fn1 , the California Court of Appeal for the Third Appellate District provided the following factual summary:

Defendant Keith Hugh Jensen was convicted by jury of spousal rape, false imprisonment, misdemeanor spousal battery, and terrorists threats. The jury also found true the allegation defendant served four prior prison terms. The trial court sentenced defendant to 15 years in state prison.

On appeal, defendant contends: (1) the trial court improperly refused his request for advisory counsel, (2) the trial court improperly admitted battered women's syndrome evidence, (3) admission, pursuant to Evidence Code section 1109, of defendant's prior infliction of domestic abuse violated his due process and equal protection rights, and (4) a jury instruction pursuant to CALJIC No. 2.50.01 violated his due process rights. We affirm. FACTS On May 4, 2002, in the early morning hours, defendant called his estranged wife, Terri, to get a ride, but she refused. Defendant called a second time and told Terri his young nephew was with him at a known drug house. Terri picked up a friend, Jill Johnson, to go with her and attempted to retrieve the nephew. When she arrived, defendant got into the car instead of the nephew and refused to get out. He demanded Terri give him a ride to his father's house. During the drive, defendant pulled Terri's hair and called her names. He threatened to kill those close to Terri to bring her "world to an end."

Upon arrival at the father's house, defendant refused to get out of the car because Terri would not go with him. She decided to drive to a friend's house on Withington Avenue for help dealing with defendant. Her friends were not home, but others were in the house. Defendant exited the car on Terri's side and pulled her out of the car by her shirt sleeve. He warned her that it would be "the easy way or the hard way."

Defendant pulled Terri into the house by the front of her shirt. Once inside, defendant again grabbed Terri by the shirt, pulled her towards the bedroom, and threatened, "the easy way or the hard way." He said he wanted to talk to her. Terri entered the bedroom, fearing she would be beaten if she did not comply. Defendant kept Johnson from entering the bedroom. He closed and locked the door.

In the bedroom, defendant and Terri argued about their relationship, Terri's illness (she thought she had cancer), and her attitude. Nothing Terri said satisfied defendant, and he hit her twice on the head. She tried to protect her head with her hands, but this made him angry. He hit her again when she put her hands down. At one point, he threatened to "take [her] world down even though it mean[t] spending the rest of [his] life on death row," which she understood as a threat to kill her or her son. At some other point, defendant bit Terri on her arm.

Johnson knocked on the door to check on Terri because she had heard Terri tell defendant to stop. Defendant opened the door, told Johnson to go away, and assured her that Terri was fine. Terri said she was "okay," but Johnson could not see her. Later, Johnson asked again if everything was okay, and defendant responded that everything was fine, but the door remained closed.

Defendant ordered Terri to remove her clothes. She did not want to, but feared what he would do if she refused. She complied, removing all but her underwear. Defendant removed the underwear and had intercourse with her for approximately 30 minutes. She did not resist because she did not want him to strike her. Defendant commented she could not fulfill him, and she responded with a sarcastic remark. He attempted to hit her, and she shouted at him not to.

Johnson knocked on the door a third time, and defendant opened it. He asked Johnson about Terri's phone and purse. Johnson saw Terri was putting on her blouse, had a red and swollen face, and looked horrified. Terri managed to get out of the house and ran into the middle of the street shouting for Johnson to get into the car and start it. Defendant reached the car first, attempted to start it with an old key, and smashed in the windshield when his key failed to work. He walked away, carrying Terri's cell phone.

Terri and Johnson fled in the car to go call the police. They stopped at a bar, and Johnson dialed 911. Terri kept a lookout for defendant. The police arrived and interviewed Terri, but did not ask her for details of what happened in the room. In the meantime, defendant went to Terri's sister's house. He admitted hitting Terri, smashing the windshield of her car, and having a fight.

Terri did not report the rape until later when she was questioned by an investigator from the district attorney's office. Terri is very guarded about her personal life.

At trial, Terri testified to two prior incidents of sex and violence with defendant. The first occurred when defendant strapped her, naked, to the bed in a camper after she attempted to leave when he wanted to have sex. She escaped the bonds while defendant was outside the camper, but was unable to dress before he returned. She consented to sex with him because she did not want to be strapped down again. The second time defendant broke Terri's nose when she refused to have sex with him.

Defendant testified he started calling Terri for a ride at 4:00 a .m. on May 4, 2002, and it was light out when she picked him up. He claimed he did not ask to go to the house on Withington Avenue and did not force Terri to enter the house. He testified they argued about Terri's cancer. He denied having intercourse with Terri and stated she was mistaken about having disrobed. Finally, defendant claimed his threatening statements had been taken out of context because he was referring to what would happen if Terri kept doing and selling drugs.

(Doc. No. 18-1 at 2-3.)

II. Procedural Background

On February 15, 2007, after the California Court of Appeal affirmed petitioner's

judgment of conviction, petitioner filed a petition for writ of error coram nobis in the Sacramento County Superior Court. (Resp't's Lod. Doc. 3.) That petition was subsequently dismissed pursuant to petitioner's notice of rescission. (Id.)

On February 16, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 4.) Therein, he claimed that his appellate counsel had rendered ineffective assistance in failing to return petitioner's trial record in a timely manner and in failing to raise meritorious issues on appeal. (Id.) That petition was summarily denied by order dated February 22, 2007. (Id.)

On March 28, 2007, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 5.) Therein, he claimed that: (1) his appellate counsel rendered ineffective assistance; (2) his rights pursuant to Faretta v. California, 422 U.S. 806, 821 (1975) were violated when the prosecution charged him with additional enhancements after he waived his right to counsel; (3) the trial court violated his constitutional rights in denying his repeated requests for "advisory/co-counsel;" (4) the prosecution violated Brady v. Maryland, 373 U.S. 83, 87 (1963) when it failed to disclose exculpatory material to the defense; (5) the prosecutor violated his right to due process by presenting knowingly false testimony at trial; (6) his sentence violated the ruling in Cunningham v. California, 549 U.S. 270 (2007); (7) his sentence violated state sentencing law; (8) the "superior court clerk and/or department of corrections" violated his Constitutional rights by "adding to [his] sentence;" (9) California Penal Code § 3000 is vague and unconstitutional; (10) California Penal Code § 3000.07 is unconstitutional; and (11) California Penal Code § 3004(B) is unconstitutional. (Id.) The state appellate court denied relief in an order dated May 10, 2007 with the following reasoning:

The petition for writ of habeas corpus is denied for failure to state a prima facie case as to any claim other than the contention that the trial court imposed the upper term in violation of Blakely v. Washington (2004) 159 L. Ed.2d 403 and Cunningham v. California (2007) 166 L. Ed.2d 856, and, as to the Blakely/Cunningham issue, the petition is denied for failure to specifically demonstrate that the claim has been presented to the trial court in the first instance (In re Steele (2004) 32 Cal.4th 682, 692; In re Hillery (1962) 202 Cal. App.2d 293.)

(Id.)

On June 25, 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento County Superior Court, in which he raised the following claims: (1) his appellate counsel rendered ineffective assistance; (2) the trial court violated his Faretta rights; (3) the trial court violated his constitutional rights by discussing petitioner's request to represent himself at an ex parte meeting held outside of his presence; (4) he was "denied advisory/co-counsel after trial court made up its mind 'in camera;'" (5) the prosecution "suppressed exculpatory evidence and allowed it to be destroyed;" (6) the prosecutor knowingly introduced perjured testimony at trial; (7) the trial court improperly denied petitioner compulsory process for obtaining trial witnesses; (8) the trial court improperly admitted evidence of Battered Woman Syndrome; (9) California Evidence Code § 1109 is unconstitutional; (10) the trial court violated his right to due process by instructing the jury with CALJIC No. 2.50.01; (11) the trial court violated his right to due process by refusing to give jury instructions on his theory of the defense; (12) he was improperly sentenced to three upper terms without a jury finding of aggravated facts; (13) the trial court abused its discretion when it sentenced him to consecutive terms pursuant to California Penal Code § 667.6 (C); (14) he was "not sentenced to parole nor to registration per penal code section § 290;" (15) California Penal Code § 3000 (A) (4) is unconstitutional; (16) California Penal Code § 3000.07(A) is unconstitutional; and (17) California Penal Code § 3004(B) is unconstitutional. (Resp't's Lod. Doc. 6.) Petitioner also alleged a "supplemental" claim as part of this petition (claim 18), arguing that "new evidence" indicating that prosecution witness Jill Johnson had recanted her trial testimony demonstrated that he was innocent of the crimes for which he was convicted. (Id.)

In a written decision issued on October 1, 2007, Sacramento County Superior Court Judge Michael W. Sweet denied that petition. (Resp't's Lod. Doc. 6.) Citing the decision in In re Waltreus, 62 Cal.2d 218, 225 (1965), the Superior Court denied relief as to petitioner's claims 3, 4, 8, 9, and 10 because they were raised and rejected on appeal. (Id.) Citing the decision in In re Dixon, 41 Cal.2d 756, 759 (1953), the Superior Court denied relief as to petitioner's claims 2, 5, 6, 7, and 11 because they were apparent from the record and therefore should have been raised on appeal. (Id.) Petitioner's claim of ineffective assistance of appellate counsel, his sentencing claims (claims 12 through 17) and his supplemental claim of actual innocence based on newly discovered evidence (claim 18), were rejected by the Superior Court on the merits. (Id.)

On October 29, 2007, petitioner filed another petition for writ of habeas corpus in the California Court of Appeal for the Third Appellate District. (Resp't's Lod. Doc. 7.) A court docket entry reflects that petition being dismissed by order dated March 13, 2008, as "duplicative of the writ petition filed on October 31, 2008."*fn2 (Id.)

On October 31, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal, in which he raised the same claims that he raised in his June 25, 2007 petition filed in the Sacramento County Superior Court, as well as one additional claim that "the lower court ruled contrary to, and unreasonably in light of the California and United States Supreme Court law and the facts in evidence as set forth by petitioner." (Resp't's Lod. Doc. 8.) On March 14, 2008, the California Court of Appeal issued an order to show cause (OSC), returnable before the Sacramento County Superior Court and ordered the matter to be heard when placed on the calendar by the Superior Court. (Id.)

On November 8, 2007, before the California Court of Appeal issued its OSC and before the Sacramento County Superior Court could place the OSC on calendar for hearing, petitioner filed a petition for writ of habeas corpus in the California Supreme Court, raising all of the claims raised in his October 31, 2007 petition filed with the California Court of Appeal. (Resp't's Lod. Doc. 9.) The California Supreme Court summarily denied that petition on June 11, 2008. (Id.)

On June 13, 2008, petitioner filed another habeas petition in the California Court of Appeal. (Resp't's Lod. Doc. 10.) That petition has not been lodged with this court and neither party has described the claims contained therein. However, the petition was summarily denied by order dated June 19, 2008. (Id.)

Meanwhile, on May 7, 2008, the Sacramento County Superior Court issued an order directing the district attorney to file a formal response to petitioner's October 31, 2007 habeas petition. (Resp't's Lod. Doc. 11.) On May 13, 2008, the Superior Court issued a further order clarifying that the OSC previously issued from the California Court of Appeal covered only petitioner's claim (18) that prosecution witness Johnson's recantation of her trial testimony demonstrated that petitioner was innocent. (Resp't's Lod. Doc. 12). However, notwithstanding this clarification, the Superior Court also ordered respondent to file a response to petitioner's claims 4, 7, 8, 9, 10, 11, and 18. (Id.) Respondent filed responsive documents on June 13, 2008, and June 19, 2008. (Resp't's Lod. Docs. 13, 14.)

On October 30, 2008, the Superior Court ordered an evidentiary hearing on petitioner's claim regarding Johnson's recantation of her trial testimony (claim 18), and denied relief with respect to petitioner's claims 4, 7, 8, 9, 10, and 11 on procedural grounds. (Resp't's Lod. Doc. 15.) The Superior Court held the evidentiary hearing on petitioner's claim 18 on December 12, 16, and 17, 2008. (Resp't's Lod. Docs. 16-18.) On March 18, 2009, the court issued an order denying petitioner relief as to that claim on the grounds that he had "failed to make any convincing showing that Jill Johnson had committed perjury at trial." (Resp't's Lod. Doc. 19.)

Petitioner filed his federal petition for writ of habeas corpus in this court on February 23, 2009.

ANALYSIS

I. Standards of Review Applicable to Habeas Corpus Claims An application for a writ of habeas corpus by a person in custody under a

judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the interpretation or application of state law. See Wilson v. Corcoran, 562 U.S.___, ___, 131 S. Ct. 13, 16 (2010); Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

Title 28 U.S.C. § 2254(d) sets forth the following standards for granting federal habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

For purposes of applying § 2254(d)(1), "clearly established federal law" consists of holdings of the United States Supreme Court at the time of the state court decision. Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). Nonetheless, "circuit court precedent may be persuasive in determining what law is clearly established and whether a state court applied that law unreasonably." Stanley, 633 F.3d at 859 (quoting Maxwell v. Roe, 606 F.3d 561, 567 (9th Cir. 2010).

A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case.*fn3

Lockyer v. Andrade, 538 U.S. 63, 75 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'"). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S.___,___,131 S. Ct. 770, 786 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington,131 S. Ct. at 786-87.

If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008); see also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Harrington, 131 S. Ct. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 131 S. Ct. at 784.

When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860; Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006); Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).*fn4

II. Petitioner's Claims

Petitioner's nineteen claims for relief are described and considered below. For purposes of clarity and coherence, the court will address petitioner's claim one - that his appellate counsel rendered ineffective assistance - last. All other claims will be discussed in the order in which they were presented in the petition filed with this court.

Claim Two -- Breach of Agreement/Faretta Waiver

Petitioner was initially represented by counsel in the trial court, first by court appointed counsel and later by retained counsel. (Resp't's Lod. Doc. 1 (hereinafter CT) at 1-4.)

However, on the day originally set for his preliminary examination, petitioner waived his Sixth Amendment right to counsel and, at his request, was granted permission to represent himself.*fn5

(CT at 4; Pet'r's Lod. Doc. 14.) Petitioner claims that in waiving his right to counsel, he and the Superior Court Judge who accepted that waiver signed what petitioner characterizes as a written "contract" that petitioner would receive a sentence of no more than eleven years in state prison. (Pet. at 25-27.) Petitioner claims that this contract was breached "by the People and the court" when the prosecutor later amended the charging Information to add four prior conviction enhancement allegations and the trial court ultimately sentenced him to fifteen years in state prison. (Id. at 25). Petitioner also complains that he was not provided with new counsel, nor asked whether he wished to renew his waiver of his right to counsel, when the Information was amended to significantly increase the maximum penalty. Petitioner contends that, therefore, "the four prior prison convictions . . . must be reversed, set aside, and barred from further prosecution." (Id. at 27.)

The background with respect to this claim is as follows. On February 25, 2003, prior to petitioner's preliminary hearing, the court granted his request to represent himself. (CT at 103.) On that same date, petitioner signed a document which advised him of the risks of proceeding without counsel (the so-called "Faretta warnings"). (Id. at 104.) Among other things, petitioner was advised that the maximum penalty with respect to the charges brought against him in the then-pending Complaint was eleven years in state prison and a $10,000 fine. (Id.) Sacramento County Superior Court Judge Gerald Bakarich acknowledged by his signature on the Record of Faretta Warnings form that petitioner had "knowingly, intelligently and voluntarily decided to represent himself with full knowledge of the risks and dangers of doing so." (Id.) In open court, Judge Bakarich also verbally informed petitioner that the "maximum possible penalty" he faced on the charges against him was "about ten years, eleven years, in prison; $10,000 fine." (Pet'r's Lod. Doc. 14, at 2.)

Petitioner's preliminary hearing was subsequently held on April 17, 2003 and April 22, 2003 before Sacramento County Superior Court Judge Shelleyanne W.L. Chang. (CT at 223.) Petitioner represented himself at the preliminary hearing. (Id.) At the conclusion thereof, petitioner was held to answer on the charges as amended to conform to the evidence presented, the Complaint was deemed to be an Information, petitioner entered pleas of not guilty to all charges and confirmed that he wished to continue to represent himself. (CT at 329-31.)

Thereafter, on May 16, 2003, the prosecutor filed a motion to amend the Information, seeking to add the four prior conviction enhancement allegations. (Id. at 221-22.) That motion was granted after a hearing on May 16, 2003, by Sacramento County Superior Court Judge Ronald Tochterman. (Resp't's Lod. Doc. 21 (RT of May 16, 2003 Proceedings); see also CT at 52-55 (original information); 335-37 (amended information)). The entire colloquy with respect to the prosecution's motion to amend seeking to add the four prior prison term enhancement allegations was as follows:

MR. PHILLIPS: (the prosecutor): Judge, I have -- I have a twofold motion, to amend the Complaint to allege four prison priors, and I believe that Mr. Jensen has notice of the motion.

THE COURT: Is this a complaint or information?

MR. PHILLIPS: Information. Excuse me.

THE COURT: Do you oppose the motion, Mr. Jensen?

THE DEFENDANT: Which one?

MR. PHILLIPS: This is the motion to include the prison priors from your prior convictions and subsequent sentences to state prison. I believe you have notice, and I think you have got a copy. THE COURT: The question is, Mr. Jensen, do you oppose the motion?

THE DEFENDANT: Yeah.

THE COURT: On what grounds?

THE DEFENDANT: It's my understanding everything is suppose to be filed by the preliminary hearing.

THE COURT: I grant the motion. I order that the Amended Information be filed.

Do we have a copy of it, Mr. Jensen?

THE DEFENDANT: I have a copy of the motion.

THE COURT: Do you have a copy of the Amended Information, too?

THE DEFENDANT: Yes.

THE COURT: Do you agree I don't have to read it to you now, you can read it for yourself?

THE DEFENDANT: Yeah, I have read it.

THE COURT: That's fine.

What is your next motion? (Resp't's Lod. Doc. 21 at 1-2.) Unfortunately, petitioner was not arraigned on the Amended Information filed on May 16, 2003*fn6 , nor was he advised that the maximum sentence he faced had been increased as a result of the amendment. Petitioner did not request the appointment of counsel or attempt to revoke his previous waiver of his right to counsel at that time, nor was he asked whether he wished to do so.

On July 17, 2003, and August 1, 2003, petitioner requested that advisory counsel and/or standby counsel be appointed for him. (CT at 541, 687, 691, 699-706.) On July 17, 2003, Assigned Superior Court Judge Joseph A. Orr denied petitioner's request without prejudice (CT at 541, 691) and on August 1, 2003, denied petitioner's renewed request, informing him that he could "either represent yourself or you have somebody represent you, but you can't have it both ways." (Id. at 700.) Petitioner did not seek to withdraw his waiver of his right to counsel at that time.

On the first day of petitioner's trial, the parties discussed a possible resolution of the case in the presence of the assigned trial judge, Sacramento County Superior Court Judge James I. Morris. (Reporter's Transcript on Appeal (RT) at 2-39.) During that discussion, petitioner was erroneously advised that his maximum potential prison sentence on the charges against him, including the prior conviction enhancement allegations that had been added by amendment, was thirteen years and four months in state prison. (RT at 7- 9.)*fn7 Specifically, the trial judge erroneously informed petitioner that "the maximum penalty could be as much as 12 or 13 years four months depending on how I rule on motions and whether you're even convicted of anything." (Id. at 9.) Once again, following discussion of the maximum possible penalty faced, petitioner did not request the appointment of counsel or attempt to revoke his previously entered waiver of his right to counsel, nor was he asked whether he wished to do so.

At a jury instruction conference as the trial neared its conclusion, but prior to jury deliberations, petitioner asked the trial judge whether it was proper that additional enhancement allegations had been brought against him after he signed the Faretta waiver. (Id. at 2159-60.) The trial judge advised petitioner that "there is nothing that I'm aware of that says once a defendant decides to go -- to represent himself that prevents any additional charges from being added." (Id.) The judge also explained that "prison priors and prior conviction allegations" could be added to the information "even up to and during trial." (Id.) Finally, the trial judge noted that petitioner was "made perfectly aware of what your sentence exposure was . . . with the prison priors when we started the trial." (Id.)

Following his conviction petitioner was sentenced on March 26, 2004 to an aggregate state prison term of fifteen years. (Id. at 2560, et seq.) At the beginning of the sentencing hearing, petitioner stated to Judge Morris:

As far as my pro per contract, I was guaranteed no more than 11 years state prison time. Now probation is trying to give me 15.

You yourself stated prior to trial that I would receive no more than 13 years, four months . . . , that I would not be subject possibly to no more than 12 years. (Id. at 2561.) Petitioner also argued at the sentencing hearing that the amendment of the Information after his preliminary hearing to add the four prior prison term enhancement allegations violated California law. (Id.) Petitioner objected to being sentenced on the enhancements, and asked that the court impose a sentence of eight years in state prison. (Id. at 2562.) The trial judge denied petitioner's request and sentenced him to the aggregate term of fifteen years in state prison. (Id. at 2565.) The trial judge later recalled petitioner's sentence due to concern regarding some of the consecutive sentences originally imposed on certain counts of conviction and re-sentenced petitioner on April 22, 2004. (Id. at 2569-2603.) However, the adjustment in petitioner's sentence again resulted in the imposition a total aggregate prison term of fifteen years. (Id. at 2601.)

The parties agree that the last reasoned decision on petitioner's claim two is the October 1, 2007 written decision of the Sacramento County Superior Court denying petitioner's June 11, 2007 petition for writ of habeas corpus. After a review of the complicated procedural history of petitioner's state court challenges to his judgment of conviction and sentence, set forth above, this court agrees with the parties' conclusion in this regard.*fn8 As discussed above, the Sacramento County Superior Court rejected petitioner's claim for relief based on alleged Faretta error on the grounds that such a claim was barred by the holding of In re Dixon, 41 Cal.2d 756, 759 (1953) ("claims that could have been, but were not, raised on appeal are not grounds for relief."). (Resp't's Lod. Doc. 6 at consecutive pp. 1-2.)

Petitioner's Faretta claim before this court raises several distinct issues. First, petitioner argues that the Faretta waiver form he signed constituted a contractual agreement with the trial court and the prosecution, the terms of which were that he would not face any additional charges or allegations and that his maximum possible sentence would be eleven years in state prison.*fn9 Petitioner is mistaken in this regard. The Faretta waiver form utilized by the Sacramento County Superior Court is clearly designed solely to warn a criminal defendant of the dangers of self -representation and to provide a written assessment and record that the defendant's waiver of the constitutional right to counsel was knowing and intelligent at the time it was entered. It is not a "contract" in the legal sense. Similarly, the Faretta colloquy in open court did not constitute a promise by either the trial court or the prosecutor that petitioner would not be subject to additional penalties in the event the charges were amended. The cases cited by petitioner in support of his argument in this regard, which all involve the contractual nature of a plea bargain agreement, are not on point. There was no plea agreement in this case. Petitioner's breach of contract claim lacks both a factual and a legal basis and it will therefore be rejected.*fn10

Petitioner also argues that the trial court violated his federal constitutional rights when it failed to obtain another waiver of counsel from him at the time the Information was amended to add the prior prison term enhancement allegations. (Doc. No. 1 at 25.) Petitioner claims that he was "forced" to represent himself on the new enhancement allegations added by way of amendment. (Id.) Petitioner is essentially arguing that the change in circumstances, the increased maximum term of imprisonment caused by the amendment to the Information, required the trial court to obtain anew his Faretta waiver. Respondent did not address this aspect of petitioner's claim in the answer filed in this action. Accordingly, by order dated December 2, 2010, the court directed respondent to file a response addressing petitioner's claim in this regard. (Doc. No. 33.) Respondent was also asked to address whether petitioner was accurately advised by the trial court of his maximum possible sentence, in light of the record reflecting that he was originally advised by the court that he faced a maximum of eleven years in state prison, was told just prior to trial that he faced a maximum of possibly up to thirteen years and four months imprisonment, but in fact was eventually sentenced to fifteen years in state prison. (Id. at 4.)

On February 3, 2011, respondentfiled a brief in response to this court's December 2, 2010 order. Therein, respondent argues that petitioner's Faretta claim is procedurally barred based on the Sacramento County Superior Court's reliance on In re Dixon in rejecting that claim. (Doc. No. 39 at 6.) Respondent also argues that the claim is barred by the decision in Teague v. Lane, 489 U.S. 288 (1989). (Id. at 8.) However, respondent's position as stated in the supplemental briefing is that in the event petitioner's Faretta claim is found to be neither subject to a procedural bar nor barred by Teague, it is meritorious and this court should grant relief. (Id. at 15.)

The court turns first to respondent's argument that petitioner's Faretta claim is subject to a procedural bar as a result of the Sacramento County Superior Court's reliance on In re Dixon in denying relief when petitioner presented that claim to it in his June 11, 2007 habeas application. As a general rule, "[a] federal habeas court will not review a claim rejected by a state court 'if the decision of [the state] court rests on a state law ground that is independent of the federal question and adequate to support the judgment." Walker v. Martin, 562 U.S.___, ___, 131 S. Ct. 1120, 1127 (2011) (quoting Beard v. Kindler, 558 U.S. ___, ___, 130 S. Ct. 612, 615 (2009). See also Maples v. Thomas, ___U.S.___, ___, 132 S. Ct. 912, 922 (2012); Greenway v. Schriro, 653 F.3d 790, 797 (9th Cir. 2011); Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). In order for a state procedural rule to be found independent, the state law basis for the decision must not be interwoven with federal law. Cooper v. Neven, 641 F.3d 322, 332 (9th Cir. 2011); Bennett v. Mueller, 322 F.3d 573, 581 (9th Cir. 2003); LaCrosse v. Kernan, 244 F.3d 702, 704 (9th Cir. 2001). To be deemed adequate, the rule must be well established and consistently applied. Walker, 131 S. Ct. at 1128; James v. Schriro, 659 F.3d 855, 878 (9th Cir. 2011); Greenway, 653 F.3d at 797-98; Poland v. Stewart, 169 F.3d 575, 577 (9th Cir. 1999). Even if the state rule is independent and adequate, the claims may be reviewed by the federal court if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 749-50; see also Maples, 132 S. Ct. at 922.

Respondent argues, and petitioner agrees, that the procedural rule set forth in In re Dixon is independent of the federal question and adequate to support the judgment. (Doc. No. 18 at 28-29; Doc. No. 41 at 4.)*fn11 Petitioner contends, however, that the erroneous failure of his appellate counsel to raise this Faretta error issue on direct appeal constitutes cause for his default with respect to that claim. (Doc. No. 41 at 4.) In other words, petitioner argues that his procedural default was caused by the ineffective assistance of his appellate counsel in failing to raise the Faretta error issue on appeal.

Ineffective assistance of counsel will establish cause to excuse a procedural default if it was "so ineffective as to violate the Federal Constitution." Edwards, 529 U.S. at 451 (citing Murray v. Carrier, 477 U.S. 478, 486--88 (1986)). See also Cook v. Schriro, 538 F.3d 1000, 1027 (9th Cir. 2008). Moreover, the ineffective assistance claim must be presented to the state courts as an independent claim before it may be used to establish cause for a procedural default. Edwards, 529 U.S. at 451 (citing Carrier, 477 U.S. at 489.) Here, as noted above, petitioner presented his ineffective assistance of appellate counsel claim to the state courts. Further, for the reasons described below, the court concludes that petitioner's Faretta claim is, and was at the time of his direct appeal, meritorious. The failure of petitioner's appellate counsel to raise a clearly meritorious argument on appeal constitutes ineffective assistance of appellate counsel and establishes cause to excuse petitioner's procedural default on his Faretta claim in this case. Edwards, 529 U.S. at 451; Cook, 538 F.3d at 1027. See also Martinez v. Ryan, ___U.S. ___, 2012 WL 912950, at *7 (U.S. Mar. 20, 2012) ("[A]n attorney's errors during an appeal on direct review may provide cause to excuse procedural default; for if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process and the opportunity to comply with the State's procedures and obtain an adjudication on the merits of his claims.") (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991)).

As noted, respondent also contends that the granting of federal habeas relief as to petitioner's Faretta claim is barred by the decision of the Supreme Court in Teague v. Lane, 489 U.S. 288 (1989). The non-retroactivity principle announced in Teague "prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final." Caspari v. Bohlen, 510 U.S. 383, 389 (1994).

"[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, supra, 489 U.S., at 301, 109 S. Ct., at 1070. In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must "[s]urve[y] the legal landscape as it then existed," Graham v. Collins, supra, 506 U.S., at 468, 113 S. Ct., at 898, and "determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution," Saffle v. Parks, 494 U.S. 484, 488, 110 S. Ct. 1257, 1260, 108 L. Ed.2d 415 (1990). Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the non-retroactivity principle. See Gilmore v. Taylor, 508 U.S. 333, 345, 113 S. Ct. 2112, 2113, 124 L. Ed.2d 306 (1993). Id. at 390. See also United States v. Netherland, 521 U.S. 151, 157 (1997); Dyer v. Calderon, 151 F.3d 970, 989 (9th Cir. 1998).*fn12

It is well established that Courts are to "indulge in every reasonable presumption against waiver" of the constitutional right to counsel. Brewer v. Williams, 430 U.S. 387, 404 (1977). See also Patterson v. Illinois, 487 U.S. 285, 307 (1988) (noting the "strong presumption against" waiver of the right to counsel); United States v. Forrester, 512 F.3d 500, 507 (9th Cir. 2007). It is also true that a valid waiver of counsel generally carries forward through all stages of the proceedings. See e.g. Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir. 1969) ("A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings"); see also United States v. Unger, 915 F.2d 759, 762 (1st Cir. 1990) (holding that the district court was free to find that the defendant's earlier Faretta waiver was still in force at the sentencing hearing "in the absence of an intervening event").

However, by May 29, 2006, many courts had made clear that if after the waiver of counsel the circumstances faced by the defendant significantly changed, a new Faretta inquiry is required because under such circumstances the defendant could no longer be said to have knowingly and intelligently waived his constitutional right to counsel. See United States v. Erskine, 355 F.3d 1161, 1165 (9th Cir. 2004) (Reversing a conviction because the court failed to advise the defendant "of the correct maximum penalty" or ask him "whether in light of the new and different information as to the penalty he faced, he desired to withdraw his Faretta waiver."); United v. Fazzini, 871 F.2d 635, 643 (7th Cir. 1989) ("Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver[.]"); Schell v. United States, 423 F.2d 101, 103 (7th Cir. 1970) (conviction set aside where in waiving his right to counsel the defendant was advised that the maximum penalty he faced was five years but, because of changed circumstances, the court imposed a six year term of imprisonment at the time of sentencing without a new Faretta inquiry); see also Davis v. United States, 226 F.2d 834, 840 (8th Cir.1955) (petitioner's waiver of the right to counsel was still valid at the time of sentencing four days later, where "nothing happened in the meantime, such as an unreasonable lapse of time, newly discovered evidence which might require or justify advice of counsel, new charges brought, a request from the defendant, or similar circumstances.") (emphasis added.)*fn13

Moreover, a valid Faretta waiver has long been recognized as requiring that at the time of the waiver the defendant has an accurate understanding of the maximum possible penalty faced. United States v. Robinson, 913 F.2d 712, 714-15 (9th Cir. 1990) ("The second requirement under this circuit's reading of Faretta is that the defendant's waiver of the right to counsel must be made knowingly and intelligently; 'that is, a criminal defendant must be aware of the nature of the charges against him, the possible penalties, and the dangers and disadvantages of self representation.'") (quoting United States v. Balough, 820 F.2d 1485, 1487 (9th Cir. 1987)); Harding v. Lewis, 834 F.2d 853, 857 (9th Cir. 1987) (same); United States v. Aponte, 591 F.2d 1247, 1249-50 (9th Cir. 1978) (same). /////

Finally, the Ninth Circuit has relied on several decisions rendered prior to petitioner's trial for the proposition that "a properly conducted Faretta colloquy need not be renewed in subsequent proceedings unless intervening events substantially change the circumstances existing at the time of the initial colloquy." United States v. Hantzis, 625 F.3d 575, 580-81 (9th Cir. 2010) (emphasis added) (citing United States v. Springer, 51 F.3d 861, 864-65 (9th Cir. 1995), Arnold, 414 F. 2d at 1059 and White v. United States, 354 F.2d 22, 23 (9th Cir. 1965)).

Respondent argues that the instant case does not present "significant changed circumstances" and that most of the court decisions addressing the "changed circumstances" issue, concluded that no additional Faretta waiver was required under the circumstances presented in those cases. However, that argument is only pertinent to whether petitioner's Faretta claim is meritorious, not to whether the "changed circumstances" rule existed at the time petitioner's conviction became final on May 29, 2006. Surveying the legal landscape as of May 29, 2006, the court notes the numerous decisions addressed above dating back to 1970, including the Ninth Circuit's 2004 decision in Erskine. These decisions, in turn, were all based on Supreme Court decisions regarding the Sixth Amendment right to counsel. Many of the cases cited above required that the defendant be aware of the actual maximum penalty at the time of his Faretta waiver. Under these circumstances, this court concludes that the principle that a change in the maximum penalty faced by a defendant required a re-affirmation of a Faretta waiver was not a "new rule" for purposes of Teague's non-retroactivity doctrine. Put another way, the rule that "changed circumstances" require a new Faretta waiver was dictated by precedent existing at the time petitioner's conviction became final. Teague, 489 U.S. at 301; see also Fields v. Brown, 431 F.3d 1186, 1195-96 (9th Cir. 2005) (finding petitioner's claim of implied or presumed juror bias was not Teague barred even though the Supreme Court had considered, but not resolved the issue); Gonzalez v. Pliler, 341 F.3d 897, 904 (9th Cir. 2003) (the holding that use of a stun belt on a defendant at jury trial failed to meet minimum constitutional standards with respect to the use of physical restraints in the courtroom was not a new rule under Teague because the specific form of physical restraint used "is irrelevant to the application of the constitutional standards" that were well-established)

Accordingly, Teague does not bar petitioner's Faretta claim in these federal habeas proceedings and this court must decide that claim on its merits. Because the Sacramento County Superior Court denied petitioner's Faretta claim on procedural grounds, this court must therefore review the claim de novo. Stanley, 633 F.3d at 860; Reynoso, 462 F.3d at 1109; Nulph, 333 F.3d at 1056-57.*fn14

The court will now turn to the merits of petitioner's claim of Faretta error.*fn15 As noted above, a defendant wishing to waive the right to counsel must be made aware of the nature of the charges against him, the possible penalties he faces, and the dangers and disadvantages of representation. McCormick v. Adams, 621 F.3d 970, 977 (9th Cir. 2010); Robinson, 913 F.2d at 714-15; Harding, 834 F.2d at 857; Balough, 820 F.2d at 1487; Aponte, 591 F.2d at 1249-50. A waiver of counsel is not valid "in the absence of some knowledge of [defendant's] understanding of the seriousness of the charges . . . ." Evans v. Raines, 705 F.2d 1479, 1480 (9th Cir. 1983). See also United States Forrester, 512 F.3d 500, 506 (9th Cir. 2008) (the waiver of the right to counsel was not knowing and voluntary where the trial court did not advise the defendant he faced a conspiracy count and erroneously informed him that his maximum possible penalty was 10 years to life in prison, when he actually faced only zero to 20 years in prison). A court's failure to secure a valid Faretta waiver, which includes an accurate advisement as to maximum penalties, constitutes per se prejudicial error. Erskine, 355 F.3d at 1167, 1170 n.12 ("It is the court's failure to inform the defendant of the correct maximum penalty that affect [the decision to represent oneself] which, in turn, gives rise to the harm and to the per se prejudice."); Balough, 820 F.2d at 1489-90. Here, petitioner's waiver of his right to counsel was valid at the time it was initially made because he was appropriately advised of all the relevant factors including the correct maximum possible penalty he faced at that time before the prior prison term/felony conviction enhancements were alleged. Petitioner does not argue to the contrary.

As noted, generally a Faretta waiver remains in effect throughout the criminal proceedings, unless the circumstances change in a significant way or the waiver was limited. Hantzis, 625 F.3d at 580-81 (the trial court was not required to conduct a new Faretta colloquy at subsequent hearings where, among other things, "there is nothing in the record to suggest that any changes occurred . . . that would have affected [the defendant's] understanding of the charges or penalties against him"). Therefore, "[a] properly conducted Faretta colloquy need not be renewed in subsequent proceedings unless intervening events substantially change the circumstances existing at the time of the initial colloquy." Id. See also Fazzini, 871 F.2d at 643; Becker v. Martel, 789 F. Supp.2d 1235, 1243-1247 (S.D. Cal. 2011) (granting federal habeas relief because the bringing of additional charges carrying an increased penalty was a substantial change that required the trial court to readvise petitioner of his right to counsel at subsequent arraignment and the failure to do so constituted per se prejudicial error); Spence v. Runnels, No. CIVS030376GEB KJM P, 2006 WL 224442, at *12-13 (E.D. Cal. Jan. 27, 2006) (granting federal habeas relief where petitioner's waiver of right to counsel was vitiated by later amendment of the Information adding prior conviction and Three Strikes allegations which increased his maximum possible penalty). "The essential inquiry is whether circumstances have sufficiently changed since the date of the Faretta inquiry that the defendant can no longer be considered to have knowingly and intelligently waived the right to counsel." Hantzis, 625 F.3d at 581.

The question in this case is whether the amendment of the charging Information to add the four prior prison term allegations constituted such a significant change in circumstances that it left petitioner without a clear understanding of the maximum penalties he faced and therefore rendered his previous waiver of counsel unintelligent and unknowing. Respondent concedes that "the amended information, adding four prior prison term allegations (§ 667.5(b)), is a sufficient change in circumstances triggering an obligation on the trial court to seek a renewed Faretta waiver." (Doc. No. 39 at 15.) This court agrees.

Petitioner was not advised at the hearing on the motion to amend that the maximum punishment he could suffer had been increased by four years as a result of the addition of the prior prison term enhancement allegations. The amendment increased petitioner's potential sentence by more than one third. It is true that the record reflects that petitioner is an experienced criminal defendant and it is certainly possible that he understood the new potential penalties at the time the Information was amended. However, there is no evidence in the record that he did. See United States v. Mohawk, 20 F.3d 1480, 1485 (9th Cir. 1994) ("We think Mohawk's decision to waive his right to counsel may well have been knowing and intelligent -- but we are not free from doubt . . . . We therefore hold that the government has failed to carry its burden . . . ."). This court cannot assume that petitioner would have wished to continue representing himself had he been advised that his possible penalty would be increased by four years. Indeed, petitioner consistently argued later that he had been promised an eleven year sentence at the time he entered his Faretta waiver. (See e.g., RT at 2561.) There is no evidence in the record that petitioner was aware at any time before or during his trial that he faced a fifteen year prison sentence. It is undisputed that the record establishes that he was not advised of that maximum penalty at the time of the hearing on the prosecution's motion to amend the Information.

Under very similar circumstances another district court recently concluded as follows:

The Court looks at what Petitioner understood and was told at the time he waived counsel. See Erskine, 355 F.3d at 1164--65; Balough, 820 F.2d at 1489. On October 21, 2004, Petitioner was arraigned on a forty-one count complaint and was informed that he was facing a maximum of fifty-eight years in prison. On December 21, 2004, the district attorney amended the complaint and added twelve more counts. Therefore, the maximum penalty necessarily would have increased to more than fifty-eight years. FN6

However, the trial court did not advise Petitioner about the added counts or the revised maximum penalty he would face and whether it would have affected his decision to represent himself.

FN6. In the corrected penalties provided by

Respondent, the original maximum penalty should have been 33 years and 8 months at the initial arraignment on October 21, 2004. On December 21, 2004, the maximum penalty Petitioner should have been facing was 41 years and 8 months. The maximum penalty increased by eight years from the 41--count complaint to the 53--count complaint. Respondent argues that since it is clear Petitioner wanted to represent himself even when he believed he was facing 58 years, he did not need to be readvised of his right to counsel in subsequent proceedings. However, in Erskine, the Ninth Circuit pointed out the government's erroneous argument that a petitioner's Faretta waiver was valid because he was subsequently sentenced to less than what he erroneously thought was the maximum. Erskine, 355 F.3d at 1171 n. 12. The court explained that "the prejudice a defendant suffers is not the term of his sentence but rather in the decision to forgo counsel and, instead, to represent himself. The choice of self-representation, in turn, increases the likelihood of a conviction and likely length of any sentence." Id. (emphasis in original).

Here, the [state] court of appeal erroneously applied the harmless error analysis to Petitioner's federal claim that he was not readvised of his Faretta waiver at his subsequent arraignments. Therefore, even though Petitioner understood that his maximum penalty at the initial arraignment was fifty-eight years, the maximum penalty necessarily increased when twelve additional counts were added in the amended complaint. The addition of twelve counts and increased penalty was a substantial change that required the trial court to readvise Petitioner of his right to counsel. See Fazzini, 871 F.2d at 643. Therefore, the trial court's failure to readvise Petitioner about his right to counsel on December 21, 2004 was a violation of Petitioner's Sixth Amendment right to counsel. As a result of the initial failure to readvise Petitioner of his right to counsel on December 21, 2004, the two subsequent arraignments on the information on March 9, 2005 and July 27, 2006 were necessarily compromised and violated his Sixth Amendment right.

Respondent argues that even if there were a constitutional error, the harmless error standard should apply. However, the failure to meet the requirements for a valid Faretta waiver invoking the Sixth Amendment right to self-representation constitutes per se prejudicial error, and the harmless error standard is inapplicable. Frantz v. Hazey, 533 F.3d 724 (9th Cir. 2008); United States v. Erskine, 355 F.3d 1161 (9th Cir.2004); United States v. Balough, 820 F.2d 1485, 1489--90 (1987) (citing Rose v. Clark, 478 U.S. 570, 577--78, 106 S. Ct. 3101, 92 L. Ed.2d 460 (1986)); U.S. v. Arlt, 41 F.3d 516, 524 (9th Cir.1994) (stating that a denial of the right to self-representation is 'per se prejudicial error'). Therefore, in this case, because the trial court failed to readvise Petitioner of the Faretta waiver, harmless error does not apply.

Accordingly, the state court's denial of this claim was contrary to and involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, see 28 U.S.C. § 2254(d), and the Court GRANTS the petition for writ of habeas corpus as to the claim that Petitioner was not readvised of his right to counsel at the subsequent arraignments after the initial arraignment. The Court's determination that a Faretta error occurred here requires us to reverse the conviction.

Becker, 789 F. Supp.2d at 1246-47.

In much the same way, the record here establishes that a significant change in the circumstances faced by petitioner occurred after the February 25, 2003 Faretta inquiry such that he could no longer be considered to have knowingly and intelligently waived the right to counsel after the Information was amended to add the additional enhancement allegations. The trial court violated petitioner's right to counsel by failing to undertake a new Faretta advisement at the time of the amendment or thereafter. Accordingly, the writ must issue.

Respondent's position is that if petitioner's Faretta claim is not procedurally barred, not Teague barred and the court is required to grant relief as to that claim, "the conditional writ should direct the People to decide whether to retry Petitioner for the four prior prison term allegations, and if the People decide not to do so, the four, one-year enhancements should be struck." (Doc. No. 39 at 15.) Petitioner appears to contend that his petition should be granted "without condition with a full reversal" because his trial was tainted by inclusion of the four enhancement allegations. (Doc. No. 41 at 6.)

The court is mindful of the Ninth Circuit's admonition that a habeas court "'has the power to release' a prisoner, but 'has no other power.'" Douglas v. Jacquez, 626 F.3d 501, 504 (9th Cir. 2010) (quoting Fay v. Noia, 372 U.S. 391, 431, overruled on other grounds by Wainwright v. Sykes, 433 U.S. 72, 87 (1977)) (holding that the district court exceeded its habeas jurisdiction in directing the state court to revise its judgment to reflect conviction on a lesser charge instead of granting a conditional writ). Thus, the habeas court "cannot revise the state court judgment; it can act only on the body of the petitioner." Id. (quoting Noia, 372 U.S. at 431.) However, it is also the case that in such instances habeas remedies "should be tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." United States v. Morrison, 449 U.S. 361, 364 (1981). See also Chioino v. Kernan, 581 F.3d 1182, 1186 (9th ...


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