Robert Monterrosa v. Brian Belleque

FILED
NOT FOR PUBLICATION JUN 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT MONTERROSA, No. 08-35174
Petitioner - Appellant, D.C. No. 05-Cv-01233-MO
v.
MEMORANDUM *
BRIAN BELLEQUE,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted June 10, 2010
Portland, Oregon
Before: THOMPSON, McKEOWN, and PAEZ, Circuit Judges.
Robert Monterrosa appeals from the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition. Monterrosa alleges that his Sixth Amendment right
to counsel was violated when the trial judge allowed him to represent himself
during plea withdrawal proceedings without first informing him of the dangers of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
proceeding pro se as required by Faretta v. California, 422 U.S. 806, 835 (1975),
and without first determining his mental state. The Anti-Terrorism and Effective
Death Penalty Act (“AEDPA”) applies to Monterrosa’s claim, and we have
jurisdiction under 28 U.S.C. § 2253. We review de novo the district court’s denial
of the petition, Gonzalez v. Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we
affirm.
We have previously held that a state court could conclude, without running
afoul of clearly established Supreme Court precedent, that a failure to give the
warnings required by Faretta “does not automatically result in a defective
waiver—that a defendant’s waiver was nonetheless knowing and voluntary.”
Cordova v. Baca, 346 F.3d 924, 926 (9th Cir. 2003). The state post-conviction
court determined that Monterrosa was aware of the risks of proceeding pro se.
This was not an “unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d)(2). The state
court could reasonably assume that, given the late stage of the proceedings,
Monterrosa was aware of the charges against him and the terms and conditions of
his plea agreement. Moreover, in light of Monterrosa’s multiple requests to change
counsel, his “extensive criminal history,” and his acknowledgement that he did not
think he would present the facts and law better than counsel, the state court could
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reasonably infer that Monterrosa was aware of his right to, and the benefits of,
counsel. And the fact that Monterrosa’s counsel had advised him not to move to
withdraw his guilty plea supports the inference that his counsel advised him of the
substantive risks of seeking to withdraw his plea. For these reasons, we cannot
conclude that the state court’s determination that Monterrosa knowingly and
voluntarily waived his right to counsel was unreasonable.
As for Monterrosa’s claim that the trial court violated his right to counsel by
failing to inquire into his mental state before allowing him to proceed pro se,
Monterrosa points to no Supreme Court precedent establishing that a court has
such an affirmative duty. Moreover, other than vague references to “the record”
and transcripts, Monterrosa points to no evidence that he was mentally incompetent
to effectuate a valid waiver of his right to counsel. Thus, Monterrosa can establish
neither that the trail court’s failure to inquire into his mental state violated his
constitutional rights nor that his mental state rendered invalid his waiver of the
right to counsel.
AFFIRMED.
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