NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL PIERCE, 

Petitioner-Appellant, 

 v. 

STUART SHERMAN, Warden, 

Respondent-Appellee. 

No. 17-15539

D.C. No. 5:15-cv-05568-LHK

MEMORANDUM *

Appeal from the United States District Court

for the Northern District of California

Lucy H. Koh, District Judge, Presiding

Submitted January 16, 2019**

San Francisco, California

Before: CLIFTON and FRIEDLAND, Circuit Judges, and ADELMAN, District 

Judge***

Randall Pierce appeals the district court’s decision denying his petition for a 

writ of habeas corpus under 28 U.S.C. § 2254.

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Lynn S. Adelman, United States District Judge for the 

Eastern District of Wisconsin, sitting by designation.

FILED

JAN 29 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

In state court, Pierce was charged with failing to properly register as a sex 

offender. At his initial appearance, he waived his right to counsel. But the waiver 

colloquy was defective, in that the court did not advise the petitioner of the nature 

of the charges against him and the range of penalties he faced. Pierce represented 

himself at trial, was convicted, and was sentenced to five years and four months’

imprisonment. After exhausting his state-court remedies, Pierce filed his federal 

habeas petition, alleging that he did not knowingly and intelligently waive his 

Sixth Amendment right to counsel. The district court denied the petition, holding 

that although the waiver colloquy was defective, the petitioner had not carried his 

burden to prove that, at the time of the waiver, he did not know the nature of the 

charges against him or the range of penalties he faced. “[I]n a collateral attack on 

an uncounseled conviction, it is the defendant’s burden to prove that he did not 

competently and intelligently waive his right to the assistance of counsel.” Iowa v. 

Tovar, 541 U.S. 77, 92 (2004); see also Cordova v. Baca, 346 F.3d 924, 926 (9th 

Cir. 2003) (recognizing that inadequate waiver colloquy does not automatically 

invalidate the waiver).

On appeal, Pierce does not argue that, in the district court, he carried his 

burden to show that he did not know the nature of the charges against him or the 
3 

range of penalties he faced.1Instead, he argues that the district court improperly 

dismissed his habeas petition based on a pleading defect without granting him an 

opportunity to amend his petition, even though he failed to request leave to amend. 

But Pierce misunderstands the district court’s order. The court did not dismiss the 

petition based on a pleading defect. It denied the petition after considering the 

entire record. That is, the court considered the petition, the attached brief and other 

supporting materials, the respondent’s answer, the respondent’s brief, and the statecourt record, and then concluded that Pierce had failed to point to any allegations 

or evidence suggesting that his waiver was not knowing and intelligent. Because a 

district court is generally prohibited from holding evidentiary hearings in habeas 

cases and must usually decide them based on the state-court record, see, e.g., 28 

U.S.C. § 2254(e); Murray v. Schriro, 745 F.3d 984, 999–1000 (9th Cir. 2014), 

habeas cases are almost always decided based on the briefs and other papers. See 

also Rule 8(a), Rules Governing § 2254 Cases (“If the petition is not dismissed, the 

judge must review the answer, any transcripts and records of state-court 

 

1 Pierce does argue that he satisfied his burden to prove that the waiver colloquy 

was defective, but, as already noted, a defective waiver colloquy will not 

automatically invalidate the waiver. See Cordova, 346 F.3d at 926. Pierce also 

argues that he alleged in the district court that the record did not demonstrate that 

his waiver was knowing and intelligent. But, as noted, on collateral review, it is the 

petitioner who bears the burden of demonstrating that his waiver was not knowing 

and intelligent. So Pierce could not obtain habeas relief by proving only that the 

state had not shown that his waiver was knowing and intelligent.
4 

proceedings, and any materials submitted under Rule 7 to determine whether an 

evidentiary hearing is warranted.”). Here, in resolving this case based on the paper 

record, the district court fully adjudicated Pierce’s claim—it did not dispose of it 

based on a pleading defect. Therefore, it was not an abuse of discretion to fail to 

grant Pierce leave to amend where he did not request it. 

We also note that the district court gave Pierce an opportunity to refute the 

respondent’s argument that he had not met his burden to prove that his waiver was 

not knowing and intelligent. Specifically, the court gave Pierce an opportunity to 

file a reply (which it called a “traverse”) to the respondent’s answer. Pierce chose 

not to file a reply, and thus he chose not to respond to the respondent’s argument 

that Pierce had not met his burden of proof. Accordingly, the district court did not 

act unfairly in adjudicating the petition without granting Pierce a further 

opportunity to submit allegations or evidence in support of his claim.

AFFIRMED.