ORDER GRANTING IN PART AND DENYING IN PART PETITION FOR WRIT OF HABEAS CORPUS

ANTHONY J. BATTAGLIA, District Judge.

Petitioner Joseph Becker (hereinafter "Petitioner"), a state prisoner proceeding pro se and in forma pauperis, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On October 22, 2010, Respondent filed an answer. Petitioner filed a traverse on November 11, 2010. This Court has reviewed the petition for writ of habeas corpus, Respondent's answer, Petitioner's traverse, and all supporting documents. After a thorough review, this Court GRANTS IN PART AND DENIES IN PART the petition for writ of habeas corpus.

Procedural Background

A. Conviction and Sentence

On October 21, 2004, Petitioner was arraigned on a forty-one count complaint. (1 CT 41-57; Pet., Ex. 2.) On December 21, 2004, Petitioner was arraigned on an amended fifty-three count complaint after the district attorney added eleven counts of attempting to prevent and dissuade a witness from testifying and one count of making a criminal threat. (1 CT 21-40; Pet., Ex. 3.) On March 9, 2005, Petitioner was arraigned on a forty-eight count information. (1 CT 41-57; Pet., Ex. 4.) The information mostly set forth the allegations in the amended complaint and also included an added charge of stalking. (1 CT at 44.) After a hung jury at the first trial, on July 27, 2006, Petitioner was arraigned on an amended forty-eight count information that differed from the original information in several minor ways. (1 CT 58-73; Pet., Ex. 5; Resp't Mem. of P & A at 11.)

On August 23, 2006, Petitioner was convicted of four counts of attempting to make a criminal threat in violation of California Penal Code ("Penal Code") sections 422/664; fifteen counts of making a false report of a bomb to an agency or business in violation of Penal Code section 148.1(a); fifteen counts of making a criminal threat in violation of Penal Code section 422; seven counts of attempting to prevent and dissuade a witness in violation of Penal Code section 136.1(a)(2); and one count of stalking in violation of Penal Code section 646.9(a). (4 CT 911-15, 5 CT 1098-1104) Petitioner admitted he served two prior prison terms. (5 CT 1098-1104.) On October 6, 2006, Petitioner was sentenced to 20 years and 4 months in prison. (5 CT 1104.)

B. Direct Appeal

Petitioner filed a direct appeal with the California Court of Appeal, Fourth Appellate District, Division One. (Lodgment 1-3.) On October 23, 2008, 2008 WL 4681568, the Court of Appeal affirmed the conviction but remanded the matter for resentencing after concluding that the trial court abused its discretion in denying Petitioner's request for reinstatement of counsel at the new trial/sentencing hearing. (Lodgment 4.) Petitioner filed a petition for review in the California Supreme Court. (Lodgment 5.) That petition was denied on February 11, 2009. (Pet., Ex. 7.) On July 10, 2009 and again on January 27, 2010, the trial court resentenced Petitioner to 20 years and 4 months in prison. (Lodgment 6, 7.)

Petitioner appealed again to the Court of Appeal. However, on September 20, 2010, he filed a notice of abandonment of his appeal. (Lodgment 8.) That same day, the appeal was dismissed and the remittitur issued. (Id.)

C. Instant Federal Petition for Writ of Habeas Corpus

Petitioner filed the instant federal petition on May 11, 2010 challenging his conviction. On October 22, 2010, Respondent filed an answer. Petitioner filed a traverse on November 22, 2010. On December 13, 2010, the parties consented to jurisdiction by United States Magistrate Judge Anthony J. Battaglia. Subsequently, then Magistrate Judge Battaglia was elevated to a district judge. On March 11, 2011, District Judge Anthony J. Battaglia was added as the district judge on the case. On March 25, 2011, the Court issued an order directing Respondent to provide additional information about the possible maximum penalties Petitioner would have faced at the December 21, 2004 arraignment on the amended complaint; at the March 9, 2005 arraignment on the information; and at the July 27, 2006 arraignment on the amended information. (Dkt. No. 18.) On April 6, 2011, Respondent filed a response.

Factual Background

The following factual background is taken from the Court of Appeal opinion in People v. Becker, unpublished opinion (Cal. Ct.App., 4th Dist., Div. 1, Oct. 23, 2008). The Court presumes these factual determinations are correct pursuant to 28 U.S.C. § 2254(e)(1).

(Lodgment 4.)

Discussion

A. Scope of Review

28 U.S.C. § 2254(a) provides:

28 U.S.C. § 2254(a). As amended, the AEDPA now reads:

28 U.S.C. § 2254(d) (emphasis added).

To obtain federal habeas relief, Petitioner must satisfy either § 2254(d)(1) or § 2254(d)(2). See Williams v. Taylor, 529 U.S. 362, 403, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The threshold question is whether the rule of law was clearly established at the time petitioner's state court conviction became final. Id. at 406, 120 S.Ct. 1495. Clearly established federal law, as determined by the Supreme Court of the United States "refers to the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision." Id. at 412, 120 S.Ct. 1495; see also Lockyer v. Andrade, 538 U.S. 63, 71, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). However, Ninth Circuit case law may be "persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law, and also may help us determine what law is `clearly established.'" Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir.2000). Only after the clearly established Federal law is identified can the court determine whether the state court's application of that law "resulted in a decision that was contrary to, or involved an unreasonable application of" that clearly established Federal law. See Lockyer, 538 U.S. at 71-72, 123 S.Ct. 1166.

A state court decision is "contrary to our clearly established precedent if the state court applies a rule that contradicts the governing law set forth in our cases" or "if the state court confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams, 529 U.S. at 405-406, 120 S.Ct. 1495. "A state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case" or "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407, 120 S.Ct. 1495. Under Williams, an application of federal law is unreasonable only if it is "objectively unreasonable." Id. at 409, 120 S.Ct. 1495. Further, a state court's decision results in a "decision that was based on an unreasonable determination of the facts in light of the evidence presented in State court proceeding" if it "is so clearly incorrect that it would not be debatable among reasonable jurists." Jeffries v. Wood, 114 F.3d 1484, 1500 (9th Cir.1997) (citations omitted).

In making such a determination under AEDPA, the court looks to the state's last reasoned decision. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir.2002). Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06, 111 S.Ct. 2590, 115 L.Ed.2d 706 (1991). A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" id., the state court decision will not be "contrary to" clearly established federal law.

B. Waiver of Sixth Amendment Right to Counsel at Initial Arraignment

Petitioner argues that he did not make a knowing and intelligent waiver of his right to counsel at his initial arraignment on October 21, 2004. Specifically, he claims that the trial court failed to inform him about the nature of the charges against him, the possible punishment he would receive and that he did not receive a copy of the complaint at the hearing. Respondent opposes arguing that the trial court properly found that Petitioner made a voluntary, intelligent waiver of his right to counsel.

A defendant in a criminal case has the constitutional right to be represented by counsel and also, if he chooses, a right to represent himself. Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The Sixth Amendment right to counsel may be waived by a defendant, so long as relinquishment of the right is knowing, and intelligent. Id. at 835, 95 S.Ct. 2525. "Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that `he knows what he is doing and his choice is made with eyes open.'" Id. at 835, 95 S.Ct. 2525 (citation omitted). The defendant must be aware of "[1] the nature of the charges and [2] the possible penalties, as well as [3] the dangers and disadvantages of self-representation in a complex area where experience and professional training are most helpful." United States v. Harris, 683 F.2d 322, 324 (9th Cir.1982). Although no set formula or script has been required, the court must consider the defendant's "education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding." Iowa v. Tovar, 541 U.S. 77, 88, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004).

Here, the California Supreme Court denied the petition for review without comment. (Pet., Ex. 7.) Since there is no reasoned decision from the California Supreme Court, the Court "looks through" to the court of appeal decision. See Ylst, 501 U.S. at 801-06, 111 S.Ct. 2590. The court of appeal concluded that Petitioner "received sufficient advisement concerning self-representation at the arraignment of the original complaint so as to establish a voluntary, knowing waiver of the right to counsel." (Lodgment 4 at 13.)

On October 21, 2004, Petitioner was arraigned on a forty-one count complaint filed by the San Diego District Attorney's Office charging him with multiple counts of making a criminal threat, attempting to prevent and dissuade a witness from testifying and making a false bomb report. (Pet., Ex. 2.) At the arraignment hearing, Petitioner's appointed counsel informed the trial court that Petitioner wanted to represent himself and Petitioner had been advised of his constitutional rights. (4 CT at 887-88.) On that date, Petitioner signed an "Acknowledgment of Constitutional Rights" form which provided:

(1 CT 18.) He also signed an "Acknowledgment Concerning Right of Self-Representation" pursuant to People v. Lopez, 71 Cal.App.3d 568, 138 Cal.Rptr. 36 (1977).4 (1 CT 19, 20.) On that form, he acknowledged that he was being charged with "PC 422, 136.1(a)(2), 148.1(a). Total of 41 counts." (Id.) In addition, he acknowledged that the maximum punishment he was facing was 58 years. (Id.) Not only did his counsel at the time advise him of his constitutional rights which was acknowledged by Petitioner but the rights were recited again in court on October 21, 2004. (4 CT 889-91.) Before the trial court recited the Lopez form, the judge told Petitioner, "I need you to listen carefully while I read this into the record, okay, Mr. Becker?" (Id. at 889.) The Lopez form sets forth advisements about a defendant's constitutional rights and the dangers and disadvantages of self-representation. (1 CT 19-20.) A copy of the complaint was also given to Petitioner.5 (4 CT 896.) The trial court further questioned Petitioner on his literacy. (Id. at 891.) Petitioner stated that he graduated high school and had taken some college classes. (Id. at 891.) He also informed the court that he was representing himself in another case set for trial. (Id. at 891-92.)

Petitioner complains that he was not given information about the nature of the charges because the Lopez form only listed the Penal Code sections, not told about the possible penalties and did not receive a copy of the complaint. First, although the Lopez form only lists the Penal Code sections, the form indicated that Petitioner acknowledged that he received advice concerning the charged offenses. (1 CT 19-20.) Petitioner also received a copy of the complaint which detailed the nature of the offenses. (4 CT 896.) Second, as to the possible penalties, the Lopez form indicated and the trial court stated in open court that Petitioner's maximum possible sentence was 58 years. (1 CT 19-20, 4 CT 889.) Lastly, as already stated and based on the court transcript, Petitioner was given a copy of the complaint. (4 CT 896.)

Further, when the trial court recited the Lopez form in court, Petitioner did not object or indicate his lack of knowledge about the charges, and he did not object or comment on the possible penalties or about the dangers and disadvantages of self-representation. There is nothing in the record to demonstrate that Petitioner did not understand the contents of the Lopez form. The Court concludes that Petitioner was advised about the nature of the charges against him, the possible penalties he faced, and the dangers and disadvantages of self-representation; and therefore, Petitioner made a knowing and voluntary waiver of his right to counsel at the initial arraignment.

Accordingly, the state court's denial of this claim was not contrary to nor did it involve an unreasonable application of clearly established federal law as determined by the United States Supreme Court, nor was it an unreasonable determination of the facts. See 28 U.S.C. § 2254(d). Habeas relief is not warranted on Petitioner's claim that he did not make a knowing and intelligent waiver of his right to counsel at the initial arraignment on October 21, 2004.

C. Waiver of Sixth Amendment Right to Counsel at Subsequent Arraignments

Petitioner argues that he was not readvised of his right to waive counsel on December 21, 2004, when an amended complaint was filed adding twelve counts; on March 9, 2005, when he was arraigned on the information and the information added a count of stalking; and on July 27, 2006, when Petitioner was arraigned on an amended information after a hung jury on the first trial. He argues that he did not understand the possible penalties he faced at these subsequent arraignments. (Pet. at 5c.) Respondent opposes.

The Ninth Circuit has held that a valid waiver of counsel carries forward through all stages of the proceeding unless the defendant expressly requests counsel at a subsequent stage or the waiver was limited. Arnold v. United States, 414 F.2d 1056, 1059 (9th Cir.1969) cert. denied, 396 U.S. 1021, 90 S.Ct. 593, 24 L.Ed.2d 514 (1970) (holding that the Sixth Amendment right to counsel applies to all critical stages of the prosecution including sentencing but a new waiver is not required to be obtained at every subsequent court appearance in the case); White v. United States, 354 F.2d 22, 23 (9th Cir.1965). "Once the defendant has knowingly and intelligently waived his right to counsel, only a substantial change in circumstances will require the district court to inquire whether the defendant wishes to revoke his earlier waiver." United States v. Fazzini, 871 F.2d 635, 643 (7th Cir.1989); Schell v. United States, 423 F.2d 101, 102-03 (7th Cir.1970) (waiver of counsel invalidated by increased maximum sentence, among other things); see also Torres v. United States, 140 F.3d 392, 404 (2d Cir. 1998) (fact that judge decided to submit sentencing to jury after Faretta waiver did not vitiate waiver because it did not increase the penalty defendant faced). "A requirement of readvisement under changed circumstances is consonant with the Supreme Court's repeated holding that a waiver of counsel is valid only if made with an awareness of the possible penalties and with eyes open." Spence v. Runnels, 2006 WL 224442 (E.D.Cal.2006) (citing Von Moltke v. Gillies, 332 U.S. 708, 723, 68 S.Ct. 316, 92 L.Ed. 309 (1948); Faretta, 422 U.S. at 835, 95 S.Ct. 2525).

The Ninth Circuit has also held that a defendant must understand the maximum penalty he faces before a court can accept a waiver of counsel by looking at what the defendant understood at the time he waived his right to counsel. See United States v. Erskine, 355 F.3d 1161, 1164-65 (9th Cir.2004) (holding that the defendant did not understand the maximum penalty he was facing at the time of his Faretta waiver); United States v. Balough, 820 F.2d 1485, 1489 (9th Cir.1987) (reviewing the record and formulating the operative inquiry as whether the evidence "show[ed] that Balough understood the dangers and disadvantages of self-representation at the time he sought to waive his right to counsel"); United States v. Aponte, 591 F.2d 1247, 1250 (9th Cir.1978) ("The manner in which a defendant conducts his defense cannot establish his state of mind at the time he opted for self-representation.").

In Erskine, the Ninth Circuit held that the defendant did not understand the maximum penalty he was facing and therefore, he did not knowingly and voluntarily waive his Sixth Amendment right to counsel. Erskine, 355 F.3d at 1164-65. In that case, when the defendant asked to represent himself at trial, the judge advised the defendant about the dangers and disadvantages of representing himself, discussed the nature of the charges and the maximum penalty of one year that he would face. Id. at 1163-64. However, the maximum penalty discussed was incorrect, and the maximum penalty the defendant would face was five years. Id. at 1164. It was not until the first day of the trial that the government orally informed the court about the incorrect maximum sentence. Id. at 1165. The Ninth Circuit stated, "[d]espite a revelation that quintupled the stakes of self-representation for Erskine, the court did not acknowledge its prior mistake, address Erskine to ascertain whether he had understood the government's representation, advise him of the correct maximum penalty, or ask him whether in light of the new and different information as to the penalty he faced, he desired to withdraw his Faretta waiver. Instead, the court simply stated: "All right. Thank you very much. Mr. Cruz, will you please arraign Mr. Erskine?" Id. The court held that the defendant did not understand the possible penalties that he faced at the time of his Faretta waiver. Id. at 1171.

In Spence v. Runnels, 2006 WL 224442 (E.D.Cal.2006), the defendant waived his right to counsel and was informed that he may face up to sixteen years in prison. Id. at *7. A month and a half later, the district attorney discovered that defendant had two serious felony priors as well as two prison priors. Id. at *8. The court heard a motion to amend the petition which was granted. Id. At the hearing, the court advised defendant of the nature of the charges and listed the prior convictions and prison terms; however, the trial court did not inform him of the revised maximum sentence. Id. The amendments changed the maximum sentence to a total term of forty years to life. Id. When the court asked if he was withdrawing his waiver of counsel; the petitioner replied "I'm not withdrawing anything." Id. The magistrate judge recommended that the waiver of counsel did not remain valid at the time the amended information was filed because the court did not inquire whether the new maximum penalty of forty years would affect petitioner's decision to represent himself. Id. at *12. The district court adopted the recommendations of the magistrate judge and reversed the sentence. Spence v. Runnels, 03cv376-GEB-KJM-P (E.D.Cal.2006).

On October 21, 2004, Petitioner was initially arraigned on a forty-one count complaint consisting of the charges of making a criminal threat; attempting to prevent and dissuade a witness from testifying; and making a false bomb report. (1 CT 1-17; Pet., Ex. 2.) On December 21, 2004, Petitioner was arraigned on an amended complaint with fifty-three counts. (1 CT 21-40; Pet., Ex. 3) The district attorney added eleven counts of attempting to prevent and dissuade a witness from testifying and one count of making a criminal threat. (Id.) At that hearing, the following colloquy occurred:

(Pet., Ex. 3 at 2-3.) At the arraignment on the amended complaint, there was no discussion about the added charges, the possible penalties and whether Petitioner wanted to continue to represent himself.

On March 9, 2005, Petitioner was arraigned on a forty-eight count information. (1 CT 41-57; Pet., Ex. 4.) The information dismissed some counts and added a charge of stalking. (Pet., Ex. 4; 1 CT at 44.) At the hearing, there was no discussion by the Court as to the dismissed or added charges, the possible penalties, and no discussion about Petitioner's right to counsel. (Pet., Ex. 4.)

After a hung jury at the first trial, on July 27, 2006, Petitioner was arraigned on an amended forty-eight count information. (1 CT 58-73; Pet., Ex. 5.) The amended information differed from the original information in several minor ways. (3 CT at 649.) At the hearing, as to the issue of right to counsel, the court stated, "[a]ll right. And the not guilty pleas will be entered. Defendant will continue to represent himself at his request. And the jury trial will be based on the amended information." (Pet., Ex. 5 at 2.)

The court of appeal held that under state law, the trial court erred in failing to readvise Petitioner of his right to counsel at "his arraignments following the original October 2004 arraignment;" however, since Petitioner understood he had a right to counsel throughout the proceedings, there was no prejudice. (Lodgment at 4 at 16.) This included the December 21, 2004 arraignment on the amended complaint; the March 5, 2005 arraignment on the information; and the July 27, 2006 arraignment on the amended information for retrial. (Id. at 15-16.) As to federal law, the court stated that even if there was a failure to readvise Petitioner about self-representation violating his constitutional rights, the error was harmless beyond a reasonable doubt because the record indicated that Petitioner understood he had a right to counsel and wished to continue to represent himself. (Id. at 19-22.)

When Petitioner initially asserted his right to represent himself on October 21, 2004, the trial court properly informed him about the nature of the charges, that he was facing a maximum penalty of fifty-eight years in prison, and told him the dangers and disadvantages to self-representation. (Pet., Ex. 2.) In Respondent's response to the Court's order, filed on March 25, 2011, requiring it to set forth the maximum penalties Petitioner would have faced at the three subsequent arraignments, Respondent determined and for the first time informed the Court that the original maximum penalty stated at the October 21, 2004 arraignment was incorrect and should have been 33 years and 8 months, not the fifty-eight years that was stated in the state court proceedings. (Dkt. No. 19 at 2.) Therefore, based on the corrected maximum penalty at the initial arraignment, at the December 21, 2004 arraignment, the maximum penalty Petitioner was facing was 41 years and 8 months; at the March 9, 2005 arraignment, the maximum penalty was 37 years and 4 months; and at the July 27, 2006 arraignment, the maximum penalty was 37 years and 5 months. (Id.)

The Court looks at what Petitioner understood and was told at the time he waived counsel. See Erskine, 355 F.3d at 1164-65; Balough, 820 F.2d at 1489. On October 21, 2004, Petitioner was arraigned on a forty-one count complaint and was informed that he was facing a maximum of fifty-eight years in prison. (1 CT 19-20, 4 CT 889.) On December 21, 2004, the district attorney amended the complaint and added twelve more counts. Therefore, the maximum penalty necessarily would have increased to more than fifty-eight years.6 However, the trial court did not advise Petitioner about the added counts or the revised maximum penalty he would face and whether it would have affected his decision to represent himself. (Pet., Ex. 3.)

Respondent argues that since it is clear Petitioner wanted to represent himself even when he believed he was facing 58 years, he did not need to be readvised of his right to counsel in subsequent proceedings. (Resp't Response filed 4/6/11 at 3.) However, in Erskine, the Ninth Circuit pointed out the government's erroneous argument that a petitioner's Faretta waiver was valid because he was subsequently sentenced to less than what he erroneously thought was the maximum. Erskine, 355 F.3d at 1171 n. 12. The court explained that "the prejudice a defendant suffers is not the term of his sentence but rather in the decision to forgo counsel and, instead, to represent himself. The choice of self-representation, in turn, increases the likelihood of a conviction and likely length of any sentence." Id. (emphasis in original).

Here, the court of appeal erroneously applied the harmless error analysis to Petitioner's federal claim that he was not readvised of his Faretta waiver at his subsequent arraignments. (Lodgment 4 at 19-22.) Therefore, even though Petitioner understood that his maximum penalty at the initial arraignment was fifty-eight years, the maximum penalty necessarily increased when twelve additional counts were added in the amended complaint. The addition of twelve counts and increased penalty was a substantial change that required the trial court to readvise Petitioner of his right to counsel. See Fazzini, 871 F.2d at 643. Therefore, the trial court's failure to readvise Petitioner about his right to counsel on December 21, 2004 was a violation of Petitioner's Sixth Amendment right to counsel. As a result of the initial failure to readvise Petitioner of his right to counsel on December 21, 2004, the two subsequent arraignments on the information on March 9, 2005 and July 27, 2006 were necessarily compromised and violated his Sixth Amendment right.

Respondent argues that even if there were a constitutional error, the harmless error standard should apply. However, the failure to meet the requirements for a valid Faretta waiver invoking the Sixth Amendment right to self-representation constitutes per se prejudicial error, and the harmless error standard is inapplicable. Frantz v. Hazey, 533 F.3d 724 (9th Cir.2008); United States v. Erskine, 355 F.3d 1161 (9th Cir.2004); United States v. Balough, 820 F.2d 1485, 1489-90 (1987) (citing Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)); U.S. v. Arlt, 41 F.3d 516, 524 (9th Cir.1994) (stating that a denial of the right to self-representation is per se prejudicial error'). Therefore, in this case, because the trial court failed to readvise Petitioner of the Faretta waiver, harmless error does not apply.

Accordingly, the state court's denial of this claim was contrary to and involved an unreasonable application of clearly established federal law as determined by the United States Supreme Court, see 28 U.S.C. § 2254(d), and the Court GRANTS the petition for writ of habeas corpus as to the claim that Petitioner was not readvised of his right to counsel at the subsequent arraignments after the initial arraignment. The Court's determination that a Faretta error occurred here requires us to reverse the conviction.

D. Certificate of Appealability

Rule 11 of the Federal Rules Governing Section 2254 Cases, "[t]he district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability should be issued only where the petition presents "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). A certificate of appealability "should issue when the prisoner shows ... that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

The Court finds that Petitioner has raised a valid, nonfrivolous claim of a denial of a constitutional right with respect to the denied claim that Petitioner did not make a knowing and intelligent waiver of his right to counsel at his initial arraignment. A certificate of appealability is granted as to that claim.

Conclusion

Based on the above, IT IS HEREBY ORDERED that the Court GRANTS in part and DENIES in part the petition for writ of habeas corpus. The Court DENIES the claim that he did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment at the initial arraignment. The Court GRANTS the claim that Petitioner did not knowingly and voluntarily waive his right to counsel under the Sixth Amendment at his subsequent arraignments after the initial arraignment. Accordingly, Respondent shall dismiss the counts added after the initial arraignment (counts 38-43 and 46-48) and resentence Petitioner, or initiate proceedings to retry Petitioner.

IT IS SO ORDERED.