Franco LOPEZ, A/K/A Eduardo T. Hernandez, Petitioner-Appellant, v. S. Frank THOMPSON, Respondent-Appellee

175 F.3d 1120, 99 Daily Journal DAR 3873, 99 Cal. Daily Op. Serv. 2986, 1999 U.S. App. LEXIS 7959, 1999 WL 242387
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 27, 1999
Docket97-35837
StatusPublished
Cited by7 cases

This text of 175 F.3d 1120 (Franco LOPEZ, A/K/A Eduardo T. Hernandez, Petitioner-Appellant, v. S. Frank THOMPSON, Respondent-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Franco LOPEZ, A/K/A Eduardo T. Hernandez, Petitioner-Appellant, v. S. Frank THOMPSON, Respondent-Appellee, 175 F.3d 1120, 99 Daily Journal DAR 3873, 99 Cal. Daily Op. Serv. 2986, 1999 U.S. App. LEXIS 7959, 1999 WL 242387 (9th Cir. 1999).

Opinions

Opinion by Judge ALDISERT; Dissent by Judge KOZINSKI.

ALDISERT, Circuit Judge:

This appeal by Franco Lopez, a/k/a Eduardo T. Hernandez, from the denial of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254, requires us to decide whether Appellant’s waiver of his right to counsel at sentencing, following a no-contest plea to several sexual offenses in an Oregon state court, was knowing, intelligent, voluntary and with awareness of the dangers and disadvantages of self-representation. We are to review the detailed colloquies that took place on different days in open court between two Oregon state judges, Appellant’s then counsel of record and the Appellant himself.

The district court had jurisdiction pursuant to 28 U.S.C. § 2254. Because the district court issued a certificate of probable cause, this court has jurisdiction pursuant to 28 U.S.C. § 2253. The appeal was timely filed. Rule 22(b), Federal Rules of Appellate Procedure. We conclude that the record supports the district court’s determination of a knowing and intelligent waiver of counsel at sentencing and affirm the court’s judgment.

[1122]*1122I.

In February 1989, Lopez sexually assaulted the 11-year-old daughter of a woman with whom he was living. Represented by counsel, he appeared before Judge Haas, a Multnomah County, Oregon, Circuit Court judge, in October 1989 and pleaded no-contest to three counts of sodomy in the first degree and one count of sex abuse in the first degree. At the plea hearing, Judge Haas explained to Lopez the possible prison terms and fines for each count as well as the possibility of probation. SER at 6. Lopez indicated that he understood. Id. The judge also explained that the district attorney, pursuant to a plea agreement, ER at 22-23, was seeking a “dangerous offender” charge, see Or.Rev.Stat. § 161.725, which increased Lopez’s possible sentence on that count from 10-20 years to 15-30 years. SER at 7. Finally, the judge explained that a psychiatrist would examine Lopez to recommend whether or not he should be classified as a dangerous offender. Id. at 9. Again, Lopez indicated that he understood. Id.

On November 2, 1989, Lopez appeared before a different judge, Judge Roth, for a hearing on his motion to remove Attorney William Brennan as his counsel at the sentencing proceeding. Lopez had already successfully moved to replace three previous lawyers. He insisted to the court that he desired to proceed to the sentencing hearing without representation of counsel. ER at 42^44. Attorney Brennan recommended against Appellant’s self-representation at sentencing and explained to Judge Roth in open court, in Lopez’s presence, that psychiatrists would be evaluating Lopez for the purpose of determining the dangerous offender status:

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 ah, and the fugitive matter which is I believe the second case down on your docket, ah, 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.
Mr. Lowe: Your honor, I should inform the court the state is opposed to any change ah, this would make the fifth attorney for this defendant: Mr. Levy, Mr. Ravio, Mr. Ameras [spelling uncertain], and Mr. Brennan have all been on this case and all have had difficulty with the defendant, umm ...
The. Court: What charges does he have?
Mr. Lowe: He has a fugitive matter and a number of Sodomy charges.
Mr. Brennan: He has three counts of Sodomy in the First Degree, uh, and one count of Sex Abuse in the First Degree. Uh, the District Attorney, uh, 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, uh, evaluating Mr. [Lopez], uh, 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, uh ...
* * * ❖ # *
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.
[1123]*1123The 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. Uh, and you’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. Uh, so, it just doesn’t work too well. You got to have legal advice and you got serious charges here.
Mr. [Lopez]: I understand that.

Id. at 32-37. Later, Lopez started talking about crimes he previously committed in Texas and he was advised strongly 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, I’m 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 honor, 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.

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175 F.3d 1120, 99 Daily Journal DAR 3873, 99 Cal. Daily Op. Serv. 2986, 1999 U.S. App. LEXIS 7959, 1999 WL 242387, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franco-lopez-aka-eduardo-t-hernandez-petitioner-appellant-v-s-frank-ca9-1999.