Franco LOPEZ, a/k/a Eduardo T. Hernandez, Petitioner-Appellant, v. S. Frank THOMPSON, Respondent-Appellee, 202 F.3d 1110

Opinion by Judge McKEOWN; Concurrence by Judge WALLACE; Dissent by Judge TASHIMA. McKEOWN, Circuit Judge: The question before us is whether Franco Lopez knowingly and intelligently waived his right to assistance of counsel at sentencing in accord with Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Resolution of this question requires us to consider two important, and often competing, constitutional rights applicable to a criminal proceeding: the right to assistance of counsel and the correlative right to waive assistance of counsel.

Under the circumstances of this case, which included two hearings and a written waiver, we conclude that Lopez did knowingly and intelligently waive his right to counsel and choose self-representation. We thus affirm the district court’s denial of Lopez’s petition for writ of habeas corpus 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, Lopez pleaded no-contest to three counts of sodomy in the first degree and one count of sex abuse in the first degree. Two hearings — the plea hearing and the hearing on Lopez’s motion to remove counsel — as well as Lopez’s written waiver of counsel bear on this appeal. Plea Hearing At the plea hearing on October 25, 1989, Lopez was represented by attorney William Brennan. Judge Haas apprised Lopez of the charges, the possible prison terms and fines for each count, and the possibility of probation.

Lopez indicated that he understood: The Court: The charges against you are sodomy in the first degree, two counts; sex abuse in the first degree; sodomy in the first degree. Each one of these is punishable by imprisonment of 20 years in prison with a ten year minimum. Further, [there is] a $100,000 fine on each one of them and the sex abuse in the first degree is punishable by five years with a two and a half year minimum and $100,000 fíne. Those sentences could run concurrent and they could run consecutive. Some of them you could be sentenced to the penitentiary and others you could be placed on probation.

Do you understand that? Mr. Lopez: Yes sir. At the hearing, the deputy district attorney advised that the state would seek a “dangerous offender” charge. The judge explained to Lopez that if such a charge were sought, then a psychiatrist would examine him to recommend whether he should be classified as a dangerous offender. In a colloquy involving the judge, the deputy district attorney, and Brennan, Lopez was told that if he were classified as a dangerous offender, his sentence on one count would increase from a range of 10-20 years to a range of 15-30 years.

Again, Lopez acknowledged that he understood: Deputy District Attorney: Does the Court need to advise of a dangerous offender? The Court: Yes, I am getting down to that. The District Attorney stated that what we are going to do in reference to this case is there will be — as I understand it, there will be dismissal of charges, is that right? Deputy District Attorney: There is [sic] four charges and we would seek a dangerous offender on only one charge. Mr. Brennan: Rather than multiple. Deputy District Attorney: Rather than seeking consecutive.

The Court: We will await a PSI and they would seek one dangerous offender charge. On the dangerous offender charge, what happens if they seek that, what I do is appoint a psychiatrist who interviews you and gives you an examination and they-make a recommendation whether or not you have a sustained potential for dangerous offender treatment. If you do[,] that means the Court on that count can sentence you to a maximum of 30 years to the State Corrections Division. Do you understand that? That is an issue in this ease. Mr. Lopez: I understand, sir.

Deputy District Attorney: Your Honor, should we indicate there is a potential 15 year minimum on that? The Court: Yes. There is a 15 year minimum on that also. Mr. Brennan: Just for clarification, the way I explained it to [Lopez] is that would only enhance one of the 20 year sentences from 20 to 30 and from ten year minimum to a 15 year minimum if the Court were to find him a dangerous offender, only if. The Court: Yes.... Hearing on Motion to Remove Counsel Eight days later, on November 2, 1989, Lopez appeared before a different judge, Judge Roth, for another hearing.

The subject of the hearing was Lopez’s motion to remove Brennan — Lopez’s fourth attorney in a succession of counsel- — as his counsel for the sentencing proceeding. Lopez insisted to the court that he desired to proceed to the sentencing hearing without representation of counsel. Brennan recommended against Lopez’s self-representation at sentencing and explained to Judge Roth in open court, in Lopez’s presence, that to determine dangerous offender status, psychiatrists would evaluate Lopez and then either testify or submit reports to the judge: Mr. Brennan:....

We were in front of Judge Haas, and Mr. [Lopez] entered a pleading of no-contest on the underlying case. Sentencing was set for the 27th of November ...[;] and [as to] the fugitive matter which is I believe the second case down on your docket, ... Judge Haas indicated that he would hear that matter at the conclusion of sentencing. Mr. [Lopez] has informed me that he wants to fire me and would like to represent himself. Deputy District Attorney: Your honor, I should inform the court the state is opposed to any change ... [;] this would make the fifth attorney for this defendant: Mr. Levy, Mr. Ravio, Mr.

Ameras ..., and Mr. Brennan have all been on this case and all have had difficulty with the defendant.... The Court: What charges does he have? Deputy District Attorney: He has a fugitive matter and a number of Sodomy charges. Mr. Brennan: He has three counts of Sodomy in the First Degree ... and one count of Sex Abuse in the First Degree .... [T]he District Attorney ... would be recommending a dangerous offender treatment on one count, one count only. I have contacted Dr. Frank Collistro to evaluate Mr. [Lopez], That is in place, and also Dr.

David Meyers would be ... evaluating Mr. [Lopez], ... and the two would then submit their reports to Judge Haas or testify as the case may be on that issue. I really think that Mr. [Lopez] would be better served by having an attorney to assist him rather than representing himself. ... Judge Roth then turned his attention to Lopez, inquired about his background, and told him that he should have legal advice: The Court:.... Mr. [Lopez],_ How old are you? Mr. Lopez: 30 years old, sir. The Court: And how much education do you have? Formal education. Schooling. Mr. Lopez: Schooling? The Court: Yes. Mr.

Lopez: High School. The Court: Where? Mr. Lopez: El Paso, Texas. The Court: Any law training at all? Mr. Lopez: I have some paralegal experience, sir. The Court: Well, here, here’s the problem[,] Mr. [Lopez]. I know Mr. Brennan. Mr. Brennan is a lawyer and he’s going to do the best he can for you.... [Y]ou’ve had other lawyers, and you are not a lawyer yourself. And the old saying is, even when a lawyer represents himself, he has a fool for a client.... [S]o, it just doesn’t work too well. You got to have legal advice and you got serious charges here. Mr. Lopez: I understand that.

Brennan subsequently interceded again with a recommendation that counsel be appointed for Lopez: Mr. Brennan:.... I do think he needs counsel ... and I would ask the court to appoint someone else. At this point I feel there is a real rift between Mr. [Lopez] and myself. And I think, I’m not sure what the outcome will be in the sentencing on this.... Later in the hearing, as the judge was inquiring about whether he wanted to represent himself, Lopez began talking about crimes he had committed in Texas.

The judge again advised Lopez about the dangers of self-representation: The Court: Now I don’t want to get into the whole thing. Now all I want to do is, Fm listening to you and uh, uh, you want to represent yourself? Is that what you want? Mr. Lopez: Well, if I have to. Yes, I would. The Court: What do you mean you have to? Now you’re having sort of second thoughts. Mr. Lopez: No, no, now if you’re going to put it that way, yes I will represent myself.

The thing is, is that, your hon- or, this woman had hired me to murder her husband and this is the information that I have withheld from my attorney and from the district attorney’s office. Mr. Brennan: Mr. [Lopez], at this point I would advise you to remain silent. The Court: Yes, I think this is ... Mr. Brennan: I strongly advise you to remain silent[;] I’m going on the record with that. The Court: Yeah, now I ... Mr. Brennan: Follow my advice. Mr. Lopez: I want this on the record because I want to put this out, evidently you’re not representing me anymore .... Mr.

Brennan: I’m still representing you until the court allows me to withdraw. The Court: Yes, I am advising you Mr. [Lopez], you’re not doing yourself any good putting this all down. I just, I just tell yea [sic], uh, uh, now if this is the type of representation your [sic] going to make for yourself, your [sic] going to put a noose around your neck. Mr. Lopez:_ I’m not putting no noose around my neck, I’m just bringing up what the truth is.

The hearing came to a close only after the judge asked Lopez six more times whether he wanted to represent himself and whether he understood the import of the judge’s warnings: The Court: Do you really want to represent yourself? You have a constitutional right to represent yourself as well as the right to have a lawyer. Mr. Lopez: Yes, sir, if I may. The Court: Now this is your decision. Mr. Lopez: Yes. The Court: Now you have been fully advised. Mr. Lopez: I’m fully advised. The Court: You know you have serious charges. You already entered a plea. So you got to know where you are.

Uh, Judge Haas probably will not let you withdraw your plea of no-contest. You are coming up with sentencing. You know that. Mr. Lopez: Yes. The Court: You have only a couple of remedies as to make a strong pitch when you argue when you come up for sentencing before Judge Haas. Or to make a real pitch to say that I want to withdraw my plea and go to trial. That’s where you are. Do you understand that? s ■ Mr. Lopez: Yes, sir. The Court: Now, is this what you want to do and represent yourself and try to handle this type of situation? Mr. Lopez: Yes, sir. The Court: Alright.

On the same day, Lopez signed a written ‘YVaiver of Right to Attorney,” which confirmed his understanding that an attorney could help him: 1) Investigate my case, call witnesses, and obtain evidence. 2) Research the law and raise constitutional issues.... 3) Know and explain courtroom procedures and argue my case, or 4) Plea bargain for a reduced charge or sentence with the District Attorney. The waiver also cautioned, “I understand that, if I waive my right to an attorney, I give up that help and will have to do these things myself.” Judge Roth granted Lopez’s motion to remove Brennan.

Other Proceedings Lopez then appeared without counsel at his sentencing hearing, which was held before Judge Haas. At sentencing, Lopez did . not' cross-examine the psychiatrist, who performed the dangerous offender evaluation, and indicated that he was confused and needed the assistance of counsel. Judge Haas denied Lopez’s request for counsel, declared him a “dangerous offender,” and sentenced him to 15-30 years on that count. On the remaining three counts, the judge sentenced Lopez to consecutive prison sentences of 10-20, 10-20, and 2 1/2-5 years.

Lopez appealed his conviction to the Oregon Court of Appeals, which affirmed without opinion. State v. Lopez, 106 Or.App. 776, 810 P.2d 881 (1991). No appeal was taken to the Oregon Supreme Court. Lopez later filed for post-conviction relief in Marion County, Oregon, but was denied relief. The Oregon Court of Appeals affirmed without opinion, Lopez v. Maass, 128 Or.App. 695, 877 P.2d 678 (1994), and the Oregon Supreme Court denied review. Lopez v. Maass, 320 Or. 325, 883 P.2d 1303 (1994).

Lopez filed a petition for writ of habeas corpus on February 28, 1995, alleging ineffective assistance of counsel, violation of his right against double jeopardy, denial of due process, and denial of the right to counsel at sentencing. The district court denied the petition, adopting the magistrate’s findings: The court finds from a review of this record that the trial court advised petitioner of the disadvantages and dangers of representing himself, and that petitioner understood the ramifications of proceeding without counsel.

Accordingly, the court finds that petitioner’s waiver of his right to counsel was valid.

On appeal, Lopez contends that his waiver of counsel at sentencing must be examined “in the context of an Oregon Dangerous Offender proceeding” and that it was not knowing and intelligent because [a]t no time did Judge Roth specifically advise [him] that he could have a lawyer assist him in deciding whether he wanted to cooperate with the evaluation process[,] .... that he could have a lawyer present during the evaluation[,] .... that he had the right to confront and cross-examine the doctor who performed the evaluation^] .... [and] that he had the right to have a lawyer help him with the difficult task of effectuating this confrontation right by effectively cross-examining the doctor.

ANALYSIS We review de novo a district court’s order to grant or deny a petition for writ of habeas corpus. McKenna v. McDaniel, 65 F.3d 1483, 1490 (9th Cir.1995). Whether a waiver of the Sixth Amendment right to counsel was made knowingly and intelligently is a mixed question of law and fact that is also reviewed de novo. United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990); Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987). Habeas corpus relief is appropriate where the state court committed an error that had a “ ‘substantial and injurious [effect or influence’ ” on the outcome of the proceedings.

McKenna, 65 F.3d at 1490 (quoting Brecht v. Abrahamson, 507 U.S. 619, 627, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)). The state court’s factual findings are entitled to deference, 28 U.S.C. § 2254, and the district court’s factual findings are reviewed for clear error. McKenna, 65 F.3d at 1490. Also important to our analysis is the posture of this case, which comes to us on collateral review of Lopez’s conviction in state court, not on direct review of a conviction in federal district court. In this context, our inquiry is limited to whether Lopez was sentenced in violation of the United States Constitution.

See Smith v. Phillips, 455 U.S. 209, 221, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (holding that “[a] federally issued writ of habeas corpus ... reaches only convictions obtained in violation of some provision of the United States Constitution”). Quoting from Cupp v.

Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973), in Smith the Supreme Court articulated the parameters of our review: Before a federal court may overturn a conviction resulting from a state trial ... it must be established not merely that the [State’s action] is undesirable, erroneous, or even “universally condemned,” but that it violated some right which was guaranteed to the defendant by the Fourteenth Amendment. Smith, 455 U.S. at 221, 102 S.Ct. 940. The Sixth Amendment provides that “the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. CONST, amend.

VI. In felony cases, a criminal defendant is entitled to be represented by counsel at all critical stages of the prosecution, including sentencing. See Mempa v. Rhay, 389 U.S. 128, 134-37, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967). Faretta articulates what the Sixth Amendment requires for a valid waiver of the right to counsel and is thus our benchmark on collateral review of state court proceedings. There is no question that Lopez had a Sixth Amendment right to counsel at his sentencing hearing. There is also no question that Lopez had a correlative right to waive assistance of counsel and represent himself.

Faretta, 422 U.S. at 807, 95 S.Ct. 2525. The question we must address is whether Lopez’s waiver met the Faretta standard: When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must “knowingly and intelligently” forgo those relinquished benefits.

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.” Id. at 835, 95 S.Ct. 2525 (citations omitted).

In applying Faretta, consistent with our authority, we have suggested, but not mandated, a preferred procedure for federal district courts to follow: [ A] district court should not grant a defendant’s request to waive representation of counsel and serve as his own counsel, without discussing with the defendant, in open court, whether the waiver was knowingly and intelligently made, with an understanding of the charges, the possible penalties, and the dangers of self-representation. This is clearly the preferable procedure and should be followed by district courts in every case. United States v.

Harris, 683 F.2d 322, 324 (9th Cir.1982); see also United States v. Farhad, 190 F.3d 1097, 1099-1100 (9th Cir.1999); United States v. Balough, 820 F.2d 1485, 1488 (9th Cir.1987). In addition, in several cases arising in state court we have imposed this procedure but cited to our cases on direct review. See, e.g., Harding v. Lewis, 834 F.2d 853, 857 (9th Cir.1987); Snook v. Wood, 89 F.3d 605, 612-13 (9th Cir.1996). We have not indicated, however, that this particular procedure is constitutionally required. It is now time to clarify our position with respect to state habeas cases.

Neither the Constitution nor Faretta compels the district court to engage in a specific colloquy with the defendant. Because we cannot impose a procedural framework on state courts unless compelled by the Constitution, we need not address whether the suggested colloquy was followed here. We now turn to an analysis of the record to determine if the trial court made Lopez “aware of the dangers and disadvantages of self-representation.” Id. at 835, 95 S.Ct. 2525.

We conclude, after reviewing the record as a whole — including the two extensive hearings held within eight days of each other and the written waiver — that the trial court fulfilled its duty. Lopez “kn[ew] what he [wa]s doing,” and his choice was “made with eyes open” — he knowingly and intelligently waived his right to representation. Id. At the plea hearing and the subsequent hearing to remove his counsel, Lopez was informed of the nature of the charges and proceedings against him, the possible sentences that might be imposed (including possible sentence enhancements), and the dangers of self-representation.

In addition, Lopez was informed that psychiatrists would testify at the sentencing hearing on the dangerous offender issue. Finally, Lopez’s attorney and Judge Roth repeatedly told Lopez that he faced significant dangers if he chose to proceed without the assistance of counsel. Notwithstanding these and other warnings, Lopez persisted in his desire to represent himself; he even acknowledged that he was aware of the potential pitfalls of self-representation. The judge took care to ensure that Lopez meant what he said.

At one point early in the colloquy at the second hearing, Lopez said he would represent himself “if I have to.” Recognizing that this response was equivocal, the judge proceeded to ask Lopez six more times whether he really wanted to represent himself and whether he understood the import of the judge’s warnings. Lopez answered affirmatively each time. The dialogue between the judge and Lopez concluded: The Court: Now, is this what you want to do and represent yourself and try to handle this type of situation? Mr. Lopez: Yes, sir. The Court: Alright.

That some of the court’s admonitions were colloquial does not detract from their force or effect. On the contrary, they may have brought home the point more clearly. For example, Judge Roth warned Lopez, “if this is the type of representation your [sic] going to make for yourself, your [sic] going to put a noose around your neck.” Although the court did not list, bullet-style, the various disadvantages of proceeding without counsel, the court’s warnings nevertheless communicated powerfully to Lopez the disadvantages of proceeding pro se, which is all that Faretta requires.

See Faretta, 422 U.S. at 825, 95 S.Ct. 2525. Cf. United States v. Poynter, 489 F.Supp. 604, 605 (S.D.N.Y.1980) (“In order to impress the vast majority of defendants, talking plainly, with colloquial expressions liberally interspersed, is an imperative.”). In context, the court’s comment about the noose communicated to Lopez that he was making the very type of mistake that he might suffer in the absence of counsel. The judge’s admonitions made clear that, without counsel, Lopez was at a disadvantage precisely because he did not understand the intricacies of the proceeding.

In addition to the special persuasive force of these verbal warnings, Lopez enjoyed the benefit of the written waiver, which listed the advantages of counsel with some specificity. On appeal, Lopez characterizes the written waiver as a “pre-printed boilerplate form” but does not challenge its validity.

Indeed, the waiver was a general one, applying to the pre-trial context, but most of its examples of the advantages of counsel pertain to sentencing as well, such as, “call witnesses, and obtain evidence,” “[r]eseareh the law and raise constitutional issues,” and “[k]now and explain courtroom procedures and argue my case.” We do not place undue emphasis on the written waiver but rather regard it as one among many factors supporting waiver.

As a whole, then, the record satisfies Faretta: the verbal exchanges and the written waiver together ensured that Lopez “kn[ew] what he [wa]s doing” and that “his choice [wa]s made with eyes open.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Finally, Lopez argues that his waiver was not knowing and intelligent because he should have been advised of his rights “in the context of an Oregon Dangerous Offender proceeding” and because Judge Roth did not “specifically advise [him] that he had the right to confront and cross-examine the doctor who performed the evaluation.” This argument is without merit.

Although Faretta announced a constitutional right to self-representation, it mandated no specific litany or formula to ensure that waivers of counsel are knowing and intelligent.

We heed the Supreme Court’s teaching that our waiver analysis must be pragmatic and directed to the “particular stage of the proceedings in question”: [W]e have taken a more pragmatic approach to the waiver question—asking what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage—to determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized. Patterson v.

Illinois, 487 U.S. 285, 298, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988). This does not mean, however, that the judge serves as a surrogate lawyer for the defendant. Under the circumstances here, the only remaining proceeding was the sentencing hearing. The trial court directed its comments to waiver of counsel for sentencing and likewise our analysis is not a general one but is focused on counsel’s role “at [this] particular stage of the proceedings.” Id. Faretta requires no specific admonition regarding the right to cross-examine witnesses at a sentencing hearing.

And Lopez’s claim that the court should have specifically instructed him on the Oregon statute would have demanded tutelage and legal advice by the trial court, a result not countenanced by Faretta. Far-etta imposes no requirement to assess “how well or poorly [a defendant] mastered the intricacies” of evidence and state law. Id. at 836, 95 S.Ct. 2525. In fact, a defendant’s technical knowledge is “not relevant to an assessment of his knowing exercise of the right to defend himself.” Id.

As the Supreme Court recently stated, “the trial judge is under no duty to provide personal instruction on courtroom procedure or to perform any legal ‘chores’ for the defendant that counsel would normally carry out.” Martinez v. Court of Appeal of California, — U.S.-, 120 S.Ct. 684, 691, 145 L.Ed.2d 597 (2000). In assessing waiver of counsel, the trial judge is required to focus on the defendant’s understanding of the importance of counsel, not the defendant’s understanding of the substantive law or the procedural details.

What is required is that a defendant “be made aware of the dangers and disadvantages of self-representation” and that the defendant “‘knowingly and intelligently’ forgo those relinquished benefits.” Faretta, 422 U.S. at 835, 95 S.Ct. 2525. Looking at the record in this case as a whole, these requirements have been satisfied. AFFIRMED. . A panel of this Circuit earlier reached the same conclusion. We granted rehearing en banc. Lopez v. Thompson, 175 F.3d 1120, withdrawn and reh'g en banc granted, 187 F.3d 1160 (9th Cir.1999). . See OR. REV. STAT. § 161.725. .

Lopez had already successfully moved to replace three previous lawyers. . As the panel opinion stated, 175 F.3d at 1124 n. 1, the magistrate judge determined that Lopez had procedurally defaulted the double jeopardy and due process claims and rejected the ineffective assistance of counsel and right to counsel at sentencing claims on the merits. The district court adopted the magistrate judge’s recommendations and dismissed Lopez’s petition on July 18, 1997. The state did not raise the issue of procedural default before this court. .

Lopez filed his petition on February 28, 1995, prior to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 ("AEDPA”). Therefore, AEDPA’s amendments do not apply to his petition. Lindh v. Murphy, 521 U.S. 320, 323, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). . See Smith, 455 U.S. at 221, 102 S.Ct. 940 ("Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension.”). .

The extensive colloquy, admonitions, and pointed language can hardly be dismissed as "judicial sermonizing” or "ritualistic formula” as suggested by the dissent. If this was a sermon, then the judge was preaching to a knowing choir. Once informed of the consequences, Lopez certainly knew and understood the risks of self-representation.