Joseph Alfonso Duran v. Jeffrey A. Beard

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSEPH ALFONSO DURAN,
Petitioner-Appellant,
v.
JEFFREY A. BEARD,
Respondent-Appellee.
No. 15-55652
D.C. No.
3:08-cv-00430-WQH-RBB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted October 4, 2017**
Pasadena, California
Before: KLEINFELD, GRABER, and CHRISTEN, Circuit Judges.
Petitioner Joseph Alfonso Duran appeals the district court’s denial of his
petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254.
Reviewing de novo the district court’s decision, Robinson v. Schriro, 595 F.3d
1086, 1099 (9th Cir. 2010), we affirm.
FILED
OCT 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).

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1. The state court’s decision concerning Petitioner’s Faretta waiver was
neither contrary to nor an unreasonable application of clearly established federal
law. Lockyer v. Andrade, 538 U.S. 63, 71 (2003). Petitioner argues that the trial
court was required to inform him, at his Faretta hearing, of the possible penalties
he could face if the charges against him were later amended. No Supreme Court
case requires that the court advise a petitioner of the penalties associated with
potential future amended charges. Wright v. Van Patten, 552 U.S. 120, 125 (1980)
(per curiam).
Moreover, no clearly established federal law required the trial court to
reaffirm Petitioner’s waiver of counsel after the charges against him were amended
to include a second strike. Therefore, the trial court did not act unreasonably.
Moses v. Payne, 555 F.3d 742, 754 (9th Cir. 2009).
2. Petitioner’s claim that he received ineffective assistance of counsel
during plea bargaining is procedurally barred. The California Superior Court
found that this claim was procedurally barred because of California’s timeliness
rule, which is an independent and adequate state ground for denying review here.
Walker v. Martin, 562 U.S. 307, 315 (2011). Petitioner has not shown cause,
prejudice, or a miscarriage of justice. Coleman v. Thompson, 501 U.S. 722,
749–50 (1991).
AFFIRMED.
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