NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RANDALL PIERCE ,

Petitioner

- Appellant,

v. STUART SHERMAN, W arden ,

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 L ucy H. K oh, 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 arg ument. 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, CLER K U.S. COURT OF APPEAL S2

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 tr ial, 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, hol ding 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, i t 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 inadequat e 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 the3

range of penalties he faced. 1 Ins tead, 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 c ourt’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 ans wer, the respondent’s brief, and the state

court 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 hol ding 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 an d 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 auto matically invalidate the waiver. See Cordova , 346 F.3d at 926

. Pierce also argues that he alleg ed in the district court that the record did not demo nstrate 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 Pi erce 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 ad judicated 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
gr ant 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 “ tra verse” ) 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 burde n of proof. Accordingly, the district court did not

act u nfairly in adjudicating the petition without granting Pierce a further opportunity to s ubmit allegations or evidence in support of his claim.
AFFIRMED.