F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

A N D R E B U R T O N , Petitioner-Appellee

,

v

.

R O N D A V I S , * W arden, California State Prison at San Quentin,

Respondent-Appellant

. N o. 13-55328

D.C. No. 2:91-cv-01652- AHM

OPI NI ON

A ppeal from the United States District Court for the Central District of California A. Howard Matz , District J udg e, Presiding

Arg ued and Submitted Aug ust 28, 2014—Pasadena, California

F iled March 10, 2016

B efore: Diarmuid F . O’Scannlain, J ohnnie B

. Rawlinson,

and J ay S. B y bee, Circuit J udg es.

Opinion by

J udg e B y b e e; Dissent by

J udg e O’Scannlain

* Ro n Dav i s is su

b s titu t e d fo r K ev in C h ap p ell as W ard en o f th e Calif o rn ia State P riso n

at San Qu en tin . Fed . R. A p p . P . 4 3 (c)(2 ).B U R T O N V

. D A V I S 2

SUMMARY * *

Habeas Corpus

The p anel a ffirmed the district court’s g rant of California
state p r i soner Andre B urton’s pre-AEDPA habeas corpus p e t i t ion challeng ing his conviction and death sentence fo r robbery and murder, in a case in wh i c h B urton invoked his rig ht to represent himself under Faretta v. California

, 422 U.S. 806 (1975).

The panel held that the California courts’ decision to deny B urton h is Faretta rig hts was not contrary to decisions of the United States Supreme Court, but that the trial judg e’s denial of the requests on the sole g r ound that B urton was not ready for trial and would need a continuance, and the C a l ifornia Supreme Court’s a f

firmance of those d enials, we re contrary to this court’s d ecision in Fritz v. Spalding

, 682 F .2d 782 (9th Cir. 1982).

The panel held that because neither the trial court nor the California Sup r e me Court made a n y finding that B urton’s requests were a mere delay tactic, it was appropriate for the district court to determine the timeliness of B urton’s Faretta motions in the first instance. The p anel held that the district
court was not required under f ormer 28 U

. S

. C

. § 2 2 54(d) to defer to the California Supreme Court ’ s f i nding

, seventeen
y ears after its decision o n B u rton’s direct a ppeal, that Bu r t o n’s lawy er, Ronald Slick, had reason to believe tha t B urton asked to proceed pro se for the purpose of delay ing

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.B U R T O N V

. D A V I S 3

trial, w h er e the p ostconviction p roceeding s did not ask whether B urton intended to delay

, only whether Slick thoug ht that was B u rton’s intent. The panel h eld that the district court erred when it treated the p urpose-to-delay question as a mix ed question o f law and fact. B ut the panel held that t h e d i strict court was not required to presume that B u rton’s requests were a mere delay tactic b e c a use, under § 2 254(d)(1), the merits of that factual dispute were not resolved in the state postconviction h earing an d

, under § 2254(d)(2) and (d)(6), B urton w a s denied a full, fair, a nd adequate state court hearing on the issue.

The p anel h eld that the district court did not clearly err in finding t h a t B u rton’s Faretta r equests were made for leg itimate, not purely dilatory

, r easons; and therefore affirmed the district court’s conclusion that the requests were timely as a matter of law.

Dissenting

, J udg e O ’Scannlain wrote that the California

c o u r t s did determine the merits o f B urton’s p urpose in seeking to represent himself, so § 2254( d)(1) provides no basis for withholding deference; and that the California courts did aff o r d B urton a full, fair, a n d adequate hearing in determining his purpose in seeking self-representation, so the presumption of correctness should apply

.B U R T O N V

. D A V I S 4

COUNSEL

Kamala D

. Harris, Atto r n ey General of California, Dane R. Gillette, Chief Assistant Attorney General, L a nce E. W inters, Senior Assistant Attorney G eneral, Keith H. Bo r jon, Supervising Deputy A ttorney G e n eral, Chung L

. Mar (arg ued), Deputy Attorney General, L os Ang eles, California, for Respondent-Appellant.

Marcia A

. Morrissey ( arg ued), Sa n ta Monica, California; L isa M. Romo, B erkeley

, California, for Petitioner-Appellee.

OP INION

B YB EE, Circuit J udg e:

A n dre B urton was tried and sentenced to dea t h f o r robbery and murder. Twice before trial and anoth er two t imes during trial, B urton invoked his constitutional rig ht t o represent himself under Faretta v. Californ i a , 4 2 2 U.S. 806 ( 1 9 75). Each time, the judg e denied the request becaus e Burton needed time to prepare and asked that the t ri a l b e continued. On direct a

ppeal, the Califor n i a Supreme Court affirmed. B urton now seeks h abeas c orpus relief based on the California Supreme Court’s rejection of h i s Faretta c laim. W e conclude, i n t h i s p re-AEDPA case, that the California Supreme Court’s decision was contrary to federal law, and we affirm the district court’s g rant of the writ.

I

This c ase comes before us so m e thirty -two y ears a fter B urton was tried. During those y ears, Bu r ton filed a directB U R T O N V

. D A V I S 5

appeal, was g ranted a state postconviction hearing , and filed

a petition for a federal writ o f h a beas corpus. His state a nd federal proceeding s ar e interwoven and complicated, so we will work throug h the various proceeding s in some detail.

A. Pretrial and Trial Proceedings

B u rton w as arrested in F e bruary 1983 for robbery and for the murder of Gulshakar Khwaja. A month later, Ronald Slick was appointed as his counsel, a nd B urton a n d h i s code fe n d ant, Otis Clements, were arraig ned in L os Ang eles Supe r i o r Court. B o th men p leaded not g uilty

, and trial was set for May

9.

I n April, Slick hired Krist i na Kleinbauer to investig ate B urton’s case. Slick g a v e Kleinbauer a memo with a list o f investig ative tasks he wanted done. S l i c k instructed Kleinbauer to conduct a backg round investig ation of B urton and Clements, to determine B urton’s participation in the robbery and murder, an d t o interview other potential witnesses.

On May 9, Slick declared that he was n ot ready for trial

a n d requested a continuance. T h e court severed B urton ’s

case from Clements’s and continued B urton’s trial to J uly 25. About a month later, in mid-J u ne, Kleinbau e r b eg an interviewing witnesses.

W h en Kleinbauer interviewed B urton, B urton told her that Slick had not visited him at the c o u n t y j a il a nd that he

was not satisfied with Slic k ’ s representation in h is c ase. B urton asked Kleinbauer if she c ould g ive him advice about what to do. Kleinbauer contacted a local attorney , J eff B rodey

, and B rodey told her that B urton could ask to dismissB U R T O N V

. D A V I S 6

his cou n sel and make a Faretta motion. Kleinbauer took notes, and g ave B rodey ’s advice to B urton in late J u ly

. 1

On J u l y 2 6 and ag a in on Aug ust 2
, Slick announced he

was ready for trial, b ut both times the court trailed the case on its own motion. I n the m e antime, however, Kleinbauer was still interviewing witnesses. On J uly 2 5, she inte rviewed Susana Camacho, a

n ey ewitness, who had told the police she thoug ht the shooter was a white m an. On Aug ust 8, she interviewed Michael Stewart, a former police officer who told her that the shooter r an rig h t past him carry ing a money

bag

. Stewart told her he was “definite about the fact that the man
must have been older because of the g ray in his beard.” The shooter “looked older than the d river, in his late thirties,” was at least six feet tall, and w as approx imately 180 to 190 pounds. (According to the arrest report, B urton was 19 y ears old, was just under six feet tall, and weig hed 160 pounds.)

On Aug ust 10, the case was assig ned for trial to J udg e D

. Sterry F a g an. T hat same day

, Kleinbauer g ave a written report of the Camacho and Stewart interviews to Slick. W h en she g ave him the reports, Slick did not tell her that B urton’s trial w as already underway

. S h e e x p ected Slick to have her follow up on both witnesses and to contact other individuals who mig ht have corroborated their accounts, but he never did

so.

1 Klein b au er testif

ied th at, to th e b est o f h e r k n o w led g e, sh e p assed alo n g B ro d ey ’ s ad v ice to B u rto n o n J u ly 2 9
, an d th e State h as n o t d isp u ted th at testim o n y

. T h e n ex t tim e B u rto n ap p eared i n co u rt af ter J u l y 2 9 w as A u g u s t 1 0 —th e d ay

B u rto n f irst ask ed to rep resen t h i m self

.B U R T O N V

. D A V I S 7

W h en J udg e F ag an called B urton’s case on August 10, Slick informed the judg e that B urton wanted to address t he court. B urton then told the court:

Your Honor, I would like to represent my self due to the circumstances of l ack o f interest as far as the investig a tion is concerned with my case

. T here isn’t any that should have b een taken c ar e of. I haven’t spent o r had e n o u g h time to communicate with my lawy er because he haven’t g iven me the time, because he feel that to me it is not worth it to him, but to me it is worth it, b e cause it is my life that is involved an d I don’t want to take the fall for the real person in this crime.

The judg e told B urton that Slick was an e x p e r i e nced, effective lawy

e r and then asked, “More importantly , y ou are not r eady for trial today , are y ou? ” B urton r eplied, “No, sir. I still r ather take time to represent my self. I want to represent my self.” The judg e then r esponded, “W e ll, in lig ht of the fact that this matter is here f

or trial a n d the 60-day time limit r

uns F riday and y ou are not rea d y f o r t rial, I am g oing to have to deny y our r equest, Mr. B urton.” He added, “And, believe me, I am doing y ou a favor in doing that.”

The n ex t day

, B urton a s ked a second time to represent himself. He told the judg e that he h ad just received the whole file of his case, that this w a s h is first time ever g etting any papers, and that he knew “for sure that we h ave a l a c k o f interest [ that] is really out of hand a n d the court is not pay ing attention to this.” He also told the judg e that he suspected he

was b eing framed by Clements, his alleg ed coconspirator, a nd that he wanted to investig ate his case because “Ron [ Slick] isB U R T O N V

. D A V I S 8

not r eally on my side for this case.” After Slick represented
to the court that h e had investig ated B urton’s alleg ation that he was being

framed by

Clements, and told the court he was “as prepared a s I k

now h o w t o b e,” the judg e noted that B ur t o n ’ s case had been pending for “ almost the max imum period of t ime allowed to try these cases.” The judg e repeated to B urton that “y ou do h ave a constitutional rig ht to represent y o urself, but that is not an unlimited rig h t. Y ou have that rig ht only if y ou are r eady for trial today

. ” B ecause B urton was “not ready

today ,” the judg e denied his motion.

A jury was sworn in o n Aug ust 15, and t r ial beg an on Aug ust 16. The g u ilt phase trial took little more than a day

. On the first day

, a fter the court ruled on a motion to suppress B urton’s statement to the p o l i c e , Slick reserved opening
arg ument and the prosecution called f ive witnesses and put on its entire case-in-chief. Slick conducted very little cross

ex a mination o f the prosecution’s w itnesses. At the close o f the prosecution’s case, Slick asked the judg e for a re c e s s so he could interview two witnesses.

After the judg e ex cused the jury

, B urton ren e w ed his request to represent himself a nd “object[ ed]

. . . to being represented b y Mr. Ron Slick.” W hen B urton conceded that he was still n ot r eady to proceed with trial, the court ag ain denied his motion.

The nex t morning

, B urton asked a fourth time to address
t h e c o urt. B efore B u rton could say any thing

, the judg e t o l d him:

W e ll, Mr. B urton, we h ave g one throug h this twice a

nd I have i n d i c a ted to y ou that I

am not g oing to p erm i t y o u to [ proceed proB U R T O N V

. D A V I S 9

se] because y o u have indicated to me that y ou

are not ready to proceed with the trial. I f I am in error a nd if there is a conviction in this
case, the Appellate Co u r t will c ertainly

s traig h ten it out, but I don’t see that an y useful purpose w ould be s erved by g oing throug h the same conversation ag ain.

Do y ou have a n y

thing new y ou want to add?

B urton responded that he did not, and the judge denied the motion for the last time.

The jury w as then r eca lled and Slick rested without calling any witnesses. Closing arg uments a n d j ury instruc t i o n s followed. L a ter the same day

, the jury r eturned
a g uilty verdict.

Two day s later, the entire penalty phas e o f t he trial was conduct e d

. Slick called just two character w itnesses: B u r t o n ’s mother and a L os Ang eles County deputy sheriff assig ned to B urton’s area of the county jail. After a day

and

a half o f deliberating

, on Aug u st 2 3, 1983, the jury imposed the death penalty

.

Some time later, Kleinbauer was surprised to learn that B urton had been sentenced to death. She was un aw a r e that B urton’s tri a l had even started, and she was still actively investig ating his case.B U R T O N V

. D A V I S 10

B

. Direct Appeal to the California Supreme Court

B u rton p ursued an appeal to the California Supreme Co urt, and the California Supreme Court affirmed the judg ment in its entirety

. S ee People v. Burton
, 7 71 P.2d 1270 (Cal. 1 989). I n considering B urton’s Faretta claim, the court rejected B urton’s arg ument that the court was bound b y our decisions holding that a F aretta motion made before the jury is empane l ed m u s t be g ranted unless it is shown that the motion was made f

or the p urpose of securing dela y

. Id. at 1276 ( citing Armant v

. Marquez
, 772 F .2d 552, 5 55 ( 9th Cir. 1985); Fritz v. Spaldi n g , 682 F .2d 782, 784 (9th Cir. 1 982); and Maxwell v. Sumner
, 673 F .2d 1031, 1036 (9th C i r. 1982)). The c ourt considered the rule in th e s e cases “ too rig id in c i r cumscribing the discretion of the trial court.” Id. at 1277.

I nstead of apply ing the federal rule, the cou rt a p p lied its

own precedents holding that a request i s timely if made a “reasonable time” before trial but is “addressed to the sound discretion of the trial court” if made at a later ti m e

. I d

. at 1275 (citing People v. W

indham

, 560 P.2d 1187 (Cal. 1977)). Apply ing that standard, the court found that B urton did not ask to r epresent himself a “reasonable time” before trial and that “ [ t] here was no abuse of discretion in the court’s denial of the motion.” Id. at 1277. On that basis, the court rejected B urton’s Faretta claim.

C. Initial Federal Habeas Petition

B u rton filed his orig inal petition for a writ o f h abeas
corpus in the district court in 1992. The district court stay ed the f ederal habeas proceeding s, however, pending e x haustion of available state remedies. As the district court put it, “thisB U R T O N V

. D A V I S 11

case [ then] ling ered, larg ely because o f p roceeding s in the California State Court sy stem.” The stay would not be lifted until more than 16 y e ars later, after B urton filed an amended federal habeas petition in 2008.

D. State Postconviction Proceedings

After the f

ederal h abeas proceeding s were stay ed, B urton filed a state habeas petitio n w ith the California Supreme Court. F our y e ars later, the California Supreme Court ordered the Sta t e t o s h ow cause why B urton should not be
g ranted relief on his claim under People v

. Frierson
, 705 P.2d 396 ( Cal. 1985), that he w as den i e d h i s rig ht to put on a defense at the g

uilt phase of trial.

After both sides filed resp o n s e s, the court appointed a referee to c onduct an evidentiary hearing

. The court directed the referee to make factual finding s on 11 q u e s t ions, including a question involving B urton’s purpose in seeking to represent himself. The six th reference question a sked: “Did Slick have reason to believe that Petitioner’s in court requests to represent himself w ere made for t h e purpose of delay ing trial, rather than dissatisfaction with Slick’s trial strateg y ? ” 2

The referee conducted a fourteen-day hear i n g a nd submitted h is report to the California Supreme Court in 2005. I n response to the six th reference question, the referee noted

2 T h i s q u estio n w as ap p aren t ly in t en d ed to reso lv e w h e t h e r B u r to n ’ s Fa retta req u ests co n stitu

ted a clear, o p en , an d u n eq u iv o cal d isag reem en t

w ith Slick ’ s t

rial strateg y

. S

ee In re Bu rto n , 1 4 7 P

. 3 d 1 0 1 4
, 1 0 28 (Cal. 2 0 0 6 ) (ex p lain in g th at, in o rd er to pro v e a Frierso n v io latio n , “ a d ef en d an t

m u st clearly an d o p en ly

— a n d

, th u s, u neq u ivo ca lly —ex p ress a d esire to p resen t a p articu lar d ef

en se”).B U R T O N V

. D A V I S 12

Slick’s testimony that B u rton w as “not emotionally ready to g o to trial” and that Bu r t o n’s four requests to represent himself did not indicate a dissatisfaction w i t h S l ick’s trial
st r a t egy

. After r eviewing the e v idence and testimony at the ref e rence hearing

, the r eferee found that “Petitioner tried to delay the matter by se ek i n g to represent himself, but those requests were denied.”

After receiving postreference briefs from the parties, the California Supreme Court, in a published decision, rejected B urton’s Frierson claim. In re Burton , 147 P.3d 1014. The
court ag reed with the referee that Slick’s sta tements were corroborated by evidence in the record, and according ly found that B urton’s “ Far e t t a m o t ions reflected a dissatisfaction with Slick’s failure t o d e l a y the trial, n ot a dissatisfaction with Slick’s trial strateg y .” Id. at 1 0 26. Two justices d isag reed with the majority ’s finding s and d issented. See id. at 1033 (W erdeg ar, J
., dissenting ) (“W hile petitioner certainly indicated in c onnection with his f o u r Faretta motions o n Aug ust 10 throug h 17 that he was not ready to g o to trial [ pro se] and d id n ot believe the d ef e n s e case had y et been f ully investig a ted, to read h i s c o mments as reflecting only a d esire to delay trial, unrelated to any concern over the
nature and quality of the representation Slick was providing

, is objectively

unreasonable.” (internal footnote omitted)).

E. Federal Habeas Proceedings

I n 2008, B urton f

iled an amended f

ederal habeas petition. The district court lifted the stay a nd o rd e r ed the parties to brief Bu r t o n ’s first claim—his claim that he was d enied his Six th Amendment r ig ht to self-representation under Faretta

.B U R T O N V

. D A V I S 13

The State made no a ttempt to defend the California Supreme Court’s 1989 d ecision apply ing Calif ornia law to reject B urton’s Farett a c l aim. T he State recog niz ed that because B urton filed hi s o r ig inal federal habeas petition b efore the effective date o f the Antiterrorism and Effect i v e Death P en a lty Act of 1996 (AEDPA), B urton’s amended petition was g o verned by the p r e-AEDPA versio n o f 28 U.S.C. § 2254. According ly

, the State conceded that “the Ninth Circuit’s timeliness rule applies here, and Petitioner’s first two Faretta motions were timely unless they were made for the purpose of delay .”

Nevertheless, the Sta t e arg ued that the district court’s ability to apply the federal timeliness rule was sig nificantly constrained by the California Supreme Court’s f actual finding s in connection with its 200 6 d e c ision on B urton’s Frierson claim—in p articular, the c o urt’s finding that B urton’s Faretta motions reflected a d i s satisfaction with Slick’s failure to d elay trial. Citing former § 2254( d), the State arg ued to the district court that “[ t] hese factual finding s reg arding Petitione r ’ s purpose for making his Faretta motions are presumed correct on f e d eral habeas review.” I

n lig ht of these factual finding s, the State contended, the district
court was required to conclude tha t t he California courts’ denial of B urton’s Faretta motions w a s consistent with federal law.

After considering the parties’ b riefs, the dist r i ct court g ranted r elief o n B u rton’s Faretta claim. Th e d i s trict court ag reed w ith the State that, under pre-AEDPA law, Bu rt o n ’s claim was g overned by this Court’s decision in F ritz

. According ly

, b e c ause the California Supreme Court h ad “applied its own less accommodating timeliness stand a r d,” rather than the federal standard, the district court determinedB U R T O N V

. D A V I S 14

that the California Supreme Court’s rejection of B urton’s Faretta claim was “clearly e rroneous.” The d istrict court thus undertook to determine t h e timeliness of B urton’s Faretta requests in the first instance.

The district court determ i n ed that it was not required to defer to any finding by th e C a l i f ornia Supreme Court that B urton’s requests were motivated b y delay

. I n the district court’s view, the question of B urton’ s purpose in seeking to represent himself was a mix ed question o f fact and law subject t o de n ovo f

e d eral review. The district court also rejected the referee’s c reditin g of Slick’s testimony a nd discounting of B urton’s testimony ( a n d the testimony o f Slick’s investig ator, K

r i stina K leinbauer) because those credibility

finding s lacked a sufficient basis in the record. 3

The district court reviewed the transcript of B urton’s four Faretta hearing s and found that B urton had complained that “there was a lack of interest in conducting adequate pre-trial investig ation; there had been inadequate communication between him and his lawy e r; and Mr. Slick did not believe it

was worthwhile to meet with him.” The district court determined that the reference hearing testimony corroborated B urton’s stated reasons.

F or ex ample, the district court noted that althoug h Slick had told the trial judg e that he had looked in to B urton’s

s t a t e m en t s a b o u t O t i s C l e m e n t s , Bu r t o n ’ s a l l e g e d coconspirator, the testimony at the reference hearing

,

3 In p articu lar, th e d istrict co u rt n o ted : “ Ms. Klein b au er an d P etitio n er b o th h ad clear reco llectio n s o f th e co n v ersatio n s th ey h ad w i t

h each o th er

an d w ith Mr. Slic k

. On th e o th er h an d, Mr. Slick rem em b ered v irtu ally

n o th in g ab o u t h is rep resen tatio n in th is case.”B U R T O N V

. D A V I S 15

including Slick’s o wn testimony

, revealed that “[ n ] o i n vestig ation, bey ond reading the police reports, had be e n done either into Clements’s statements or his backg roun d

. ” The district court also f ound that B urton “knew that his lawy er was not pursuing a c omplete investig ation p rior to the
commencement o f trial a

nd t h a t he w as not even contacting witnesses who mig ht present evidence contrary to the prosecutor’s narrative o f e vents.” The di s t rict court f ound that “Slick d i d n o t t a ke e ven the most de minimis steps” in challeng in g hig hly questionable witness identifications a nd “effectively ig n or[ ed] the information p rovided to him by his investig ator.”

As f or B u rto n ’ s statement in a declaration that he h ad observed that other inmates’ death penalty cases were taking lo n ge r , the district court concluded that “this statement is actually consistent with Petitioner’s complaints that his lawy er was not conducting adequate in vestig ations and did
not care ab o ut h is case. Even the investig ator, Ms. Kleinbauer, was surprised to f ind ou t Mr. Slick h ad

commenc e d the trial so quickly

, g iven that he knew her investig ation was incomplete.”

I n lig ht of these finding s, the district co u r t f o und that “Petitioner’ s s t ated reasons f or asserting his rig ht to selfrepresentation were leg itimate a nd not made solely for the
purpose of delay .” T h e district court concluded that B urton’s Faretta request was timely and a ccording ly g ave t h e State 120 d ay s to e i t h e r release B u rton f rom c ustody or g rant him a new trial.

The State timely appealed, and the district court g ranted the State’s request to stay its judg ment pending resolution o f this appeal.B U R T O N V

. D A V I S 16

I I

W e review de n ovo a district court’s g rant or denial o f habeas corpus relief. Sanders v. Ratelle

, 21 F .3d 1 446, 1451 (9th Cir. 1 994). W e review the district court’s resolution o f leg al questions de nov o , a nd we r eview the district court’s finding s of f

act f or clear e rror. Seidel v. Merkle

, 146 F .3d 750, 753 (9th Cir. 1998) ; s e e a lso Sanders

, 21 F

. 3d at 1451–52; F ed. R. Civ. P. 52(a).

B ec a u s e B urton f

iled his federal habeas corpus petition before AEDPA’s effective date, we apply the former v ersion

o f 28 U.S.C. § 2254 and pre-AEDPA law. See Thomas v

. Chappell

, 678 F

. 3d 1086, 1 100–01 (9th Cir. 2 012). Under pre-AEDPA law, a s t ate c ourt’s determinations of pure questions of law and mix e d que stions of law and f act a re subject to de n ovo federal r eview. Sanders

, 2 1 F .3d at 1451. The state court’s finding s of fact are ordinarily su b ject to deference, however, and are presumed t o b e correct unless they fall within one of e ig ht ex ception s l i s t e d in f ormer § 2254(d). 4

4 T h e p resu m

p tio n o f co rrectn ess ap p l ies “ u n less th e ap plican t sh all estab lish o r it sh all o th erw ise ap p ear, o r th e resp o n d en t sh all ad m it”:

(1 ) t h at th e m erits o f t

h e f actu al d isp u te w er e n o t

reso lv ed in th e State co u rt h earin g ;

(2 ) th at t h e f

actf in d in g p ro ced u re em

p lo y ed b y th e State c o u rt w as n o t ad eq u ate to af f o rd a f u ll an d f air h earin g ;

(3 ) th at th e m aterial f acts w ere n o t ad eq u atel y d ev elo p ed at th e State co u rt h earin g ;B U R T O N V

. D A V I S 17

I I I

W e must determine whether the California courts’ rejection o f B urton’s Faretta claim was contrary t o “the Constitution or laws

. . . of the United States.” 28 U .S.C. § 2254(a) (1994). U nder the nonretroactivity rule announced in Teague v. Lane
, w e review state court decisions according
to federal law as it ex isted at the time the petitioner’s conviction became final on direct review. 489 U.S. 2 88, 310 (1989) (holding that “new constitutional rules o f criminal procedure will not be applicable to [ state crim i n a l ] cases which have become final before the new rules a re announced”).

(4 ) th at th e State co u

rt l ack ed j u risd ictio n o f th e

su bj ect m atter o r o v er th e perso n o f th e ap p lican t in th e State co u rt p ro ceed in g ;

(5 ) th a t th e ap plican t w as an i n d ig en t an d th e State

co u rt, in d ep riv atio n of h is co n stitu tio n al rig h t, f ailed to ap p o in t co u n sel to re p r e s e n t h i m in th e State co u rt p ro ceed in g ;

(6 ) th at th e ap p lican t did n o t r e c e i v e a f u ll, f air, an d ad eq u ate h earin g i n th e State co u rt p ro ceed in g ; or

(7 ) t h a t t h e a p p lican t w a s o t he r w i s e d e n i e d d u e p ro cess o f

law in th e State co u rt p ro ceed in g ;

(8 ) o r . . . th e Fed eral co u rt o n a co n sid eratio n o f [th e state co u rt] reco rd as a w h o le co n clu d es th at su ch f actu al d eterm in atio n is n o t f airly su p p o rted b y th e

reco rd

.

2 8 U.S.C. § 2 2 5 4 (d ) (1 9 9 4 ).B U R T O N V

. D A V I S 18

W e proc e e d i n two steps. F irst, we address whether the California courts’ decision to deny B urton his Faretta rig hts

was contrary to decisions of the United States Supreme Court. Because we conclude that it was not, we then ask w h e t h e r that decision was contrary to o ur o w n contemporaneous decisions. W e conclude that the California courts’ decision

was contrary to the federal Constitution, as interpreted by our

cases.

A. Supreme Court Law

W e first consider w hether the decisions o f the United States Supreme Court dictate the result in this case. W hat we

s a i d nearly two decades ag o is still true today : “ The on l y Supreme Court decision to discuss the timeliness of a request to proceed pro se is the Faretta decision itself.” Moore v

. Calderon , 108 F .3d 261, 265 (9th Cir. 1997).

I n Faretta
, the Supreme Court noted that the d e f e n d ant had asked to proceed pro se “weeks befo r e trial” and then held that “[ i] n forcing F aretta, under these circumstances
, to accept ag ainst his will a state-appointed public defender, the California courts deprived h im of his constitutional r ig ht to conduct his o wn defense.” 422 U.S. at 835–36 (emphasis added). B ecause we viewed the timing element as essential
to the Court’s holding in Faretta
, we determi n e d in Moore that, after Faretta
, the Supreme Court had clearly e stablished that a r equest to proceed p ro se is timely if m ade “weeks before trial.” Moore , 108 F .3d at 265.

Thus, had B urton asked to represent h imself w e eks before trial and had the trial court denied his request as untimely

, we would conclude that the d e n i a l w as contrary to Faretta a nd would issue the w rit on that bas i s. B urton d id not make hisB U R T O N V

. D A V I S 19

request weeks before trial, however; he made it day s before trial—three court day s before the j u ry was empaneled, to be

ex a c t. Thus, Faretta does n ot clearly entitle B urton to relief. 5

B

. Circuit Law

A l t h o ug h the Supreme Court’s d ecision in Faretta doe s not entitle B urton to relief, this does no t e n d o ur inquiry

. Under the prior version of § 2254, a federal court c ould issue

a writ of habeas corpus “ o nly on the g round that [ the state prisoner] is in custody in violation of the Constitution o r laws

or treaties of the United States.” 28 U .S.C. § 2254(a) (1994). The current v e rsion of § 2254 restr i c ts the “violation of the Constitution” that federal courts can remedy to violations of “clearly e stablishe d F ederal law, as determined by the Supreme Court of the United States .” 28 U.S.C. § 2254(d)(1) (emphasis added). There was n o such restriction in the prior law. A ccording ly

, as we observed, “[ u] nder t he old v ersion of § 2254(d), we look to the decisions of the Supreme Court and of this court in deciding w hether a w rit should issue.” Moore
, 108 F .3d at 264 (emphasis added); see also W illiams

v. Taylor

, 5 29 U.S. 362, 4 12 (2000) (ex plain i n g that “[ AEDPA] restricts the source of clearly established law to th[ e Supreme] Court’s juris p r u d e n c e ” whereas former § 2254, as interpreted by Teague , did not). W e turn now to the state of our own circuit law in 1989, the y ear B urton’s conviction became final on state direct review.

5 Fo r t h is reaso n , w ere B u rto n ’ s p etitio n g o v ern ed b y A EDP A
, w e w ou ld h av e t o rej ect h is Fa retta claim

. S ee Ma rsh a ll v. Ta

ylo r , 3 9 5 F.3 d 1 0 5 8
, 1 0 6 1 (9 th C ir. 2 0 0 5 ) (h o ld in g th at th e Calif orn ia ru le f

or d eterm in in g th e t i m elin ess o f Fa retta m o tio n s w as n o t co n trary to th e Un ited States Su p rem e Co u rt’ s h o ld in g i n F a retta th at a req u est m ad e “ w eek s b ef ore trial” is tim ely ).B U R T O N V

. D A V I S 20

1. Fritz is controlling law

The law in this c ir cu i t w as clear. B efore B urton’s conviction became final—indeed, before B u rton was e v e n arrested—we held in Fritz v

. Spalding that “a motion to proceed pro se is timely if made b efore the jury is e mpaneled, unless it is shown to be a tactic to secure delay .” 6 82 F

. 2 d at 784 (citing Maxwell

, 673 F .2d at 1036). W e clarified that “[ d] elay p e r s e i s not a sufficient g round for deny ing a defendant’s constitutional rig h t o f self-representation” a nd that a defendant “may not b e deprived of that rig ht a bsent an affirmative showing

of purpose to secure delay .” Id.

I n F ritz
, the W a shing ton Court of Appeals had found that
t he petitioner’s F

aretta motion “was a tactic ‘ to dela y h i s scheduled trial and obstru c t t h e orderly course of the administration of justice.’” Id. at 784 (quoting State v. F ritz
, 585 P.2d 173, 1 80 (W ash. Ct. A pp. 1978)). Nevertheless, we concluded that the state court’s purpose-to-delay finding was not entitled to deference because “ mat erial facts were not adequately developed” a

nd the state cour t h e aring d id not afford him a full, fair, and adequate hearing on the issue. Id.
at 7 8 5 (citing former 2 8 U.S.C. § 2 2 54(d)(3) and (d)(6)). W e

n o t e d that “much of the evidence adduced a t the hearin gs [ wa] s pertin e n t to [the petitioner’s] motivation,” but “[ t] he

e v i d e n c e [w a ] s incomplete” because “[ n] either [ the trial judg e

nor the court of a p p ea l s] made an e x press inquiry into [ the petitioner’s] purpose.” Id. B ecause the district court had also applied the wrong leg al standard, we remanded to the district
court for a determination of t h e p urpose to delay question under the correct standard. Id.

Three y ears after our decision in Fritz
, and still four y ears before B u rton’s conviction became final on direct review, weB U R T O N V

. D A V I S 21

concluded that the California Court of Appeal failed to f ollow Fritz and, a ccording l y , w e granted the writ. See Armant
, 772 F .2d at 554. W e noted in A rmant that the situation there “differ[ ed] from Fritz in a most sig nificant w ay .” Id. a t 556. W h ereas the state c ourt i n Fritz had f ound that the request

was a delay tactic, w e o b s e r v ed in A rmant that “the state appellate court did not find that the motion wa s a t actic to delay trial” and “nowhere in the r ecord [ wa] s ther e even a sug g estion that Armant made this request for the purpose o f delay .” Id. On these facts, we concluded, Armant’s request was timely

as a matter of law. Id.

W e ha v e subsequently held that Fritz constitutes

e s t a b l ished federal law f

o r p urposes of former § 2254. S e e Moore
, 108 F .3d at 2 6 4 (noting that Fritz and Armant “compel our decision” in pr e-AEDPA cases); see also id. (“Althoug h our ‘jury empanelment’ r ule for the timeliness o f Faretta motions mig h t have been a ‘new rule’ when it was announced in 1982, it was not a new rule for Moore because it was ann ounced before his conviction became final.” ( c itations omitted)); id. (noting that “[ i] n at least two cas e s ,

. . . we have g ranted the writ when a California court failed to follow the ‘jury empanelment’ r ule” (citing Armant
, 772 F .2d at 558, and Maxwell , 673 F

. 2d at 1036)).

W e thus pro c e ed to consider whether the trial judg e’s denials o f B urton’s Faretta requests and the California Supreme Court’s affirmance of those denials were contrary to our decision in Fritz

.

2. The California trial court failed to apply Fritz

Bu r ton’s trial judg e did precisely what Fritz said n o t t o do: h e denied B urton’s pre-empanelment request to pro c eedB U R T O N V

. D A V I S 22

pro se on the sole g round that B urton was not ready for tr i al and would need a continuance. B u rton asked t o r e present himself four times, and on all four o ccasions the trial judg e denied his request on this g r ound.

B u rton first asked to represent himself on Aug ust 10, 1983—three c ourt day s before the jury was empaneled. The judg e, after first telling B urton that it would be a big mistake
to proceed pro se, asked, “More importantly

, y ou are not ready for trial today

, are y ou? ” W hen B urton answered that he was not, the judg e responded, “W ell, in lig ht of the fact that this matter is here for trial and the 60-day time limit r uns F riday and y ou are not ready f or tr i a l

, I a m g oing to have to deny y o ur request, Mr. B urton.” 6

B u rton then cited Faretta a n d told the judg e, “I t is my absolute rig ht to represent my sel f

, ” and the court ag ain responded, “ I am aware of that fact, if y ou were ready for trial
t o day

. Y ou are not ready for trial today .” After c on f e r r i n g with trial counsel, the court then spoke ag ain with B urton:

6 T h e trial co u rt’ s co n cern w as sim ply w ro n g

. It is tru e th at Calif

o rn ia’ s sp eed y trial stat u t e r e q u ired su p erio r co u

rts in f elo n y cases to b rin g d ef en d an t s t o trial w ith in 6 0 d ay s o f th e f ilin g o f ch arg es. S

ee 1 9 8 2 Cal. Stat. 1 8 0 1 (am en d in g Cal. P en al Co d e § 1 3 8 2 )

. B u t th e 6 0

- d ay req u irem en t w as a lim it o n t h e g ov ern m en t, n o t th e d ef en d an t. T rial co u ld b e set o n a d ate b ey o n d th e 6 0

- d ay p erio d “ at th e req u est o f th e d ef en d an t

o r w ith h i s co n sen t, ex p ress o r im p lied .” Id

.

T h at B u rto n

co u ld co n sen t to co n tin

u an ces b ey o n d th e s tatu to ry 6 0- d ay p erio d w as n o t u n k n o w n to t h e trial j u d g e. On May 9

— d ay 4 2 of B u rto n ’ s 6 0

- day p erio d

— Slick req u est ed a t

w o

- m o n th co n tin

u an ce to J u ly 2 5

. T h e j u dg e i n stru cted th e p ro secu to r to “ [t]ak e th e w aiv er.” B u r t on th en assen ted to th e w aiv er, an d th e j u d g e g ran ted th e co n tin u an ce, n o tin g th at J u ly 2 5 “ w ill b e th e f

o rty

- seco n d d ay .”B U R T O N V

. D A V I S 23

The Court: Mr. B urton—and I ask y ou this relucta n t l y

—are y ou ready to g o to trial and represent y

ourself rig ht now, if I

—

Defendant: N o , Y our Honor, I am requesting more continuance. I am not ready

, Your Honor, at this time.

The Court: All rig ht. F ine. Y o u have
y our record, Mr

. Bu r t on. I f I am wrong a nd
y ou are rig ht, the A ppellate Court will take care of it. I

am g oing to deny y our motion.

The nex t day

, B urton ask ed t o represent himself a second time. The trial judg e told him:

W ell, Mr. B urton, first of all, y ou do hav e a constitutional rig ht to represent y oursel f

, but
t hat is not an unlimited r ig ht. You have tha t rig ht only if y ou are ready for trial today

. And y o u have told me ag ain and ag ain that
y ou are not ready for trial today

. This matter

was scheduled for trial and has b een pendin g for almost the max imum period of time allowed to try

these cases.

After B urton persisted, the tri a l j u dg e stated, “Okay

, Mr. B urton, I am g oing to d e n y y our motion f or a continuance—I think that is p art of y our motion—and for self-representation on the basis that y ou are not ready today .”

During the trial, B urton asked to proceed pro se t wo additional times. The first time, th e j u d ge ag ain inquired, “Are y o u ready to proceed today ? ” W hen B u rton once ag ainB U R T O N V

. D A V I S 24

answered that he was not, the judg e denied the motion. The second and l a s t time B u rton asked, the judg e responded, “W e ll, Mr. B u rton, we have g one throug h this tw i c e a nd I have indicated to y ou that I am not g oing to permit y ou to g o in pro per because y

ou have indicated to me that y ou are not ready to proceed with the trial.”

The trial court never found, or even sug g ested

, t hat B urton’s requests were insincere or were a mere delay tactic. Cf. Moore
, 108 F

. 3d at 264 (“[ T ] he tri a l c ourt made no finding that Moore’s [ pre-empanelment] request was a tactic for delay

, and the r ecord does not sug g est t h a t it was such a tactic. Thus, under our c a se law, Moore’s request was timely

, and h e is entitled to the writ.”); Armant
, 7 7 2 F. 2 d at 556 (“[ N] o where in the record is there even a sug g estion that Armant made this r equest for the pu r p ose of delay ; Armant

was in jail at the time the motion w as made and would apparently h ave r emained there throug hout the period o f any continuance.”). I

t is thus clear that the trial court’s rejection

o f B urton’s requests w as contrary to established Six th Amendment law in this circuit.

3. The California Supreme Court failed to apply Fritz

Althoug h the trial court’s decision was certainly contrary to our holding in Fritz
, we must also consider whether the

error was cured on appeal. See Dy e r v

. Calderon

, 151 F .3d 970, 979 n .11 (9th Cir. 1998) (en banc) (considering whether the California Supreme Court “ cure[ d] the inadequacy of the trial court’s hearing ” and concluding that “[ b] ec a u s e the California Supreme C o u r t ’s finding s were g r ounded in the

same incomplete record as the trial court’s, its finding s are no

more entitled to a p resum p t ion of correctness”). B urton appealed the trial court’s denial o f his Faretta r equests to theB U R T O N V

. D A V I S 25

California Supreme Court, and the California Supreme Court affirmed in a published decision, which we now consider.

The California Supreme Court applied its own state l aw for determining the timeliness of Faretta requests. Under the California standard, “[ i] n order to invoke an unconditional rig ht of self-repre s entation, the d efendant must assert the rig ht ‘within a reasonable time prior to the commencement o f trial.’” Burton
, 7 7 1 P .2d at 1275 (quoting People v

. W indham

, 560 P.2d 1187, 1 1 9 1 ( C a l

. 1977)). “A motion made after this period is addressed to the sound discretion o f the trial court.” Id. I n ex e rcising that discretion, trial courts

are “ to consider the ‘quality of counsel’s representation o f the defendant, the defendant’s prior p r o c livity to substitute counsel, the reasons f

o r t he r equest, the leng th and stag e o f the proceeding s, and the disru p t i o n or delay which mig ht reasonably be ex pected to f ollow t h e g ranting of such a motion.’” Id. at 1276 (quoting W indham

, 560 P.2d a t 1191–92).

B e cause B urton first asked to represent himself just three

co u r t day s before the jury was empaneled, w hich, in the court’s view, w as less than a “reasonable time prior to the
commencement of trial,” the court d etermined that B urton did
not have an unconditional rig ht to self-representation. Id. at 1275. Addressing the factors a trial court is to consider, t he
court n o t e d that “[ a] lthoug h [ B u rton] apparently had not shown a previous proclivity for substituting counsel,” other factors supported the trial court’s decision. Id. at 1277. F o r

ex a mple, the court found:

Defense counsel had repres ented defendant for six months, since the preliminary hearing

, and defendant had had sever a l courtB U R T O N V

. D A V I S 26

appea r a n ces in which he could have invoked his rig ht to represent himself. Defendant asserted he was n ot ready to g o to trial a nd needed an u nspecified period f o r preparation.

Id. a t 1 276. The court concluded that “[ u] nder the circumstances, the m o t i on was c learly d irected to the sound discretion of the trial court.” I d.

B u rton arg ued that the court “ should follow the federal rule,” but the court d eclined to do so. Id. Aft e r correctly reciting the feder a l rule, and citing Armant
, F ritz
, a nd Maxwell

, the c ourt stated that “[ t] he federal rule, thoug h it calls motions timely unt i l t h e jury is impaneled, may in practice differ little from our own rule.” Id. This was so, the
court ex plaine d

, b e cause “[ t] he fact that the g ranting of the motion will cause a continuance, and that this will prejudice the People, may be evidence o f the de f endant’s d ilatory intent.” Id. Thus, the court reasoned, a l t houg h “[ i] n the instant case[ ]

. . . the motion would be t e r m ed timely under the federal rule, the trial court would still have discretion t o deny the motion if it considered it entered for the purpose of delay .” I d.

Practical similarities aside, the court acknowledg ed some sig nificant differenc e s b e tween the California rule and the federal rule. F irst, the court recog niz ed that the C a l i f o r nia rule shifted the burden from the g overnment to the defendant. Under the California rule the b urden is on the defendant to

ex p lain his dela y , w h e r eas under the federal rule a preempanelment request is timely unless the g overnment shows that the request was a delay tactic. Id. at 1276–77. Second, when the defendant makes the r equest shortly before the jury is to be empaneled, the California rule leaves the decision toB U R T O N V

. D A V I S 27

g rant the request to the trial court’s sound discretion, whereas the federal rule does not. Id. at 1 277; see also Armant
, 772 F .2d at 555 (stating that, under the federal rule, “[ i] f the[ ] [ Fritz ] criteria are met, then a defendant’s motion to represent himself should be g ranted”). 7

G iven these differences, the California Supreme Cour t rejected the federal rule: “ To the ex tent that there is a di fference between the federal rule and the California rule,” the c ourt st a t e d

, “we find the federal rule too rig id in circumscribing the discretion of the trial court and adhere to the C al i fornia rule.” Burton
, 771 P.2d at 1277. The court thus affirmed the trial court’s decision as a n ex ercise o f discretio n and made no finding as to whether B urton’s request was a mere delay

tactic. I d.

The California Supreme Court’s decision was contrary to Six th Amendment law e stablished in Fritz and Armant

. See Moore
, 108 F .3d at 264. I ndeed, at the time of the California Su p r e me Court’s decision, we had already held that California state court decisions apply ing the California Supreme Court’s W

indham standard contravened the federal law set forth in Fritz

. See Armant
, 772 F .2d at 555–56. The

7 T h ere is an o th er, m o re sig n i f ican t d if f eren ce b etw een th e C alif

o rn ia

ru le an d th e f

ed eral ru le: t

h e co n sid eratio n s u n d er each ru le are d if f eren t. Co mp a re Bu rto n , 7 7 1 P.2 d at 1 27 6 (co u rts m u s t c o n sid er t

h e q u ality of

co u n sel’ s rep resen tatio n o f th e d ef en dan t, th e d ef

en d an t’ s p rio r pro cliv ity
to su b stit ut e co u n sel, t

h e reaso n s f

o r t h e req u est, th e len g th an d s tag e of th e p ro ceed in g s, an d th e disru p t io n o r d elay th at w o u ld resu lt f ro m g ran tin g th e re q u est), with Fritz
, 6 8 2 F.2 d at 7 8 4– 8 5 (co u rts m u st d eterm in e w

h eth er a req u est is a “ tactic to s e c u re d elay ” b y co n sid erin g

w h e t h er a d elay w o u ld prej u d ice th e p ro s ecu tio n , w h eth er th e m o tio n

co u ld h av e b een raised e a rlier, an d w h eth er t h e ev en ts p reced in g th e

m o tio n are co n sisten t w ith

a g o o d f aith assertio n o f th e Fa retta rig h t).B U R T O N V

. D A V I S 28

California Supreme Court justified its d isreg ard of the federal rule on the g round that state courts “are of course not bound
to follow the authority of the federal courts o f appeals.” B u rton , at 1277 n.2. B ut w hile that may now be true u n d e r AEDPA, it was not true before AEDPA. See M oo r e , 108 F .3d at 264 (holding that Fritz and its prog eny “establishing a ‘ j u

ry empanelment’ rule for timeliness c ompel

our decision” in pre-AEDPA cases and that, therefore, “California’s arg ument that h abeas relief is barred b y Teague

v. Lane has no merit” (citation o m i t t ed)); see also Avila v

. Roe
, 298 F .3d 750, 753 n.3 (9th Cir. 2 002) (“Al thoug h both th e state superior court a

nd the state appellate court a pplied the California rule, we are oblig ated to follow the Ninth Circuit rule.”).

4. The district court was entitled to apply Fritz in the first instance

I n sum, the trial court’s r epeated d enials o f Bu r t o n’s Faretta requests a

nd the California Supreme Court’s decision affirming those denials were contrary to our decisions in F ritz and Armant

. B e cause n e ither c ourt made any find i n g t h at B urton’s requests were a mere delay tactic, it was appropriate for the district c o u r t t o determine the timeliness of B urton’s Faretta m o t i o n s in the first instance. See Fritz
, 682 F .2d at 786 ( holding that “fa c t s material to F ritz ’s constitutional claim were not ade q u a t e ly d e v eloped in state court a nd that F ritz [wa] s thus entitled to an evidentiary hearing in federal district c ourt to determine whether his motion to proceed pro

se was made as a tactic to d elay the start of trial” (emphasis added)); Maxwell

, 673 F .2d a t 1 0 3 6 & n.5 (deferring to the dis t r i c t court’s finding

, on habeas review of a state court decision, t hat Max well’s motion was not made for the purpose of delay

).B U R T O N V

. D A V I S 29

I V

I n the usual case, hav i n g d e t ermined that the state court failed to a

pply the proper analy sis and make the n eces s a ry fin d i n gs of fact required by federal law, w e would n ow simply review the distric t c o urt’s determination of those issues u n der the usual standards of appellate r e v iew. This, however, is not the usual case.

Seventeen y ears a fter its d e c ision on B urton’s direct appeal, the California Supr em e Court determined that B urton’s lawy er, Ronald Slick, h a d r e ason to believe that B urton asked to proceed pro se for the purpose of delay ing trial. The State arg ues tha t althoug h the district court was entitled to determine the t i m el i ness of B urton’s Faretta motions, the district court was required under f ormer 28 U.S.C. § 2254(d) to defer to this f inding by the California Supreme Court.

F or the r easons we ex plain below, h owever, the d i strict
court did not have to defer to this f i n d i n g. The California postconviction proceeding s only inquired whether, for
purposes of B urton’s Frierson claim, Slick h a d r efused to present the d efense B u rton wanted and whether Slick b elieved Burton sought to delay trial beca u s e of a breakdown in the attorney -client relationship. B urton’s Frierson proceeding s,

as we e x plain, did not ask whether Burton intended to delay

, only whether Slick

thoug ht that was B urton’s intent.

A. Applicability of Former § 2254( d)

Under former 28 U.S.C. § 2254(d), state court finding s o f fact are “‘presumed to be correct’ in a federal habeas corpus proceeding unless on e o f eig ht enumerated ex ceptionsB U R T O N V

. D A V I S 30

applies.” Miller v. Fenton
, 474 U.S. 104, 105 (1985) (quoting 28 U.S.C. § 2254(d)). I f the presumption of c orrectness applies

, i t i s the petitioner’s burden to show b y convincing evidence that the state court’s f inding s were erro n e o u s. 28 U.S.C. § 2254(d) (1994). I f one of § 2 254(d)’s ex ceptions applies, however, the state court’s f actual determinations will
not be presumed correct and the district court must try the facts anew. Fritz , 682 F .2d at 785.

The district court did not consider whether the ex ceptions applied here be c a u se it concluded that § 2254(d) d id not apply

. I n the district court’s view, “whether or not [ B urton] ’s motives were dilatory ” was not a question of fact, but a mix ed
q u estion o f law and fact subject to de n ovo federal r evie w

. See Cuyler v. S

ullivan

, 446 U.S. 335, 342 ( 1980) (ques t i o ns of law a nd mix ed questions of law a n d f a ct not subject to § 2254(d)’s presumption). I n this reg ard, we think the district court was incorrect.

Our d ecisions have uniformly treated the determination o f

a petitioner’s purpose in seeking to represent himself as a question of fact. I n Fritz
, for e x ample, we ex plicitly
recog niz ed that a state cou r t’s finding of purpose to secure delay is “entitled to deference in a f ederal h abeas proceeding

. ” Fritz
, 682 F .2d at 7 8 5

. A ccording ly

, we considered t

h e § 2 2 5 4 ( d ) ex c e ptions and ultimately concluded that “no deference [ w a] s w arranted” in that case under two

ex c e ptions: § 2254(d)(3) (materi a l facts not adequately developed in state court) and § 2 254(d)(6) (petitioner not afforded a full, fair, and adequate hearing ). Id.

I n Maxwell

, we treated another state court’s finding o f
purpose to delay in a similar manner. See 673 F .2d at 1033, 1035–36. A s in Fritz
, we recog niz e d that, as a g eneral rule,B U R T O N V

. D A V I S 31

“[ t] he district court in a habeas corpus p r oceeding must presume that the state trial court’s factual determinations a re correct.” Id. at 1035 ( citing 28 U.S.C. § 2254 (d ))

. W e nevertheless ag reed with the district court that “nothing in the record supported” the state c ourt’s d etermination tha t t h e petitioner’s r equest was made for the purpose of delay

. Id. at 1035–36. The state court’s findings t hus fell under § 2254(d)’s last ex cepti on: (d)(8) (finding not fairly supported by the record). Id.

I t i s t r u e, as B urton arg ues, that “‘basic, primary

, o r historical facts’ are the ‘fact u a l issue[ s] ’ to which the statutory p resumption of correctness dominantly relates.” Thompson v. Keohane

, 516 U.S. 99, 110 (1995) ( alteration in orig inal) (quoting Miller

, 474 U.S. at 112). B ut the Supreme Court has recog niz ed that § 2254(d)’s presumption may a pply
to questions that g o b ey ond mere “basic, p r i m a ry , o r historical f

acts.” These questions often involve “individualspecific decision[ s] ” that a re “unlikely to have prece d ential value,” and often “depend[ ] heavily on the t r i a l court’s appraisal of witness credibility and demeanor.” Id. at 111, 114; see, e.g. , W

ainwright v. W

itt , 469 U.S. 412, 429 (1985) (juror impartiality ); Maggio v. Ful f o r d

, 462 U.S. 111, 117 (1983) (per curiam) (defendant’s competency to stand trial); Collazo v. Estelle

, 940 F

. 2d 411, 416 (9th C i r

. 1 9 91) (en banc) ( defendant’s knowing and intel l i g ent waiver o f Miranda rig hts).

W h ether a p etitioner’s Faretta r equest is motivated b y delay is just such a q

uestion o f fact. D e t e r mining that fact will be different for e a ch p etitioner and will d e p e n d on the court’s assessment of the totality of the petitioner’s conduct both before and after the r e q u est to determine whether the petitioner’s actions “are consistent with a g ood faith assertionB U R T O N V

. D A V I S 32

of the Faretta ri gh t

. ” F r i tz , 6 82 F .2d at 784. I ndeed, for these same r easons, we concluded in Maxwell that we would

r eview the d

istrict court’s determination of no purpose t o delay as a finding of fact:

The [ district co u r t ’ s ] f i n d i n g[ ] that Max well[ ’s]

. . . motion w as not made for the
purpose of delay [is] based on the fact-finding tribunal’s ex perience with the mainspring s o f human conduct, an d on its ex perience in

c o n d ucting trials and observing defendants’ behavior. We therefore review t h e district court’s determin a tions as finding s of fact, which, althoug h b ased solely on documentary evidence, will be set a side onl y if clearly

erroneous.

673 F .2d at 1036 (citation and intern a l quotation marks omitted); see also United States v. Smith

, 780 F .2d 810, 812 (9th Cir. 1986) (holding that “[ t] h e [ d istrict] court’s finding s, including the u ltimate finding of intent [ t o d e lay ]
, were not clearly erroneous”).

According ly

, the district court erred when it treated the
purpose to delay question as a mix ed question of law and fact. Nevertheless

, we may uphold the district court’s decision to decide that f

actual question de n ovo if B urton shows or “it

. . . otherwise appear[ s] ” that one of § 2 254(d)’s eig ht ex ceptions applies. 28 U .S.C. § 2254(d) (1994); see also B u c k ley v

. Terhune

, 441 F .3d 688, 6 94 (9th Cir. 2006) (en ba n c ) ( “W e may affirm on any g r ound supported b y the record, even if it differs from the rationale used by the district court.”).B U R T O N V

. D A V I S 33

B

. Exceptions to § 2254( d) ’s Presumption of Correctness

B u rton arg ues that the d i s trict court was not required to presume that his requests we re a mere delay tactic because, under § 2254(d)(1), the merits o f that f actual d ispute were not resolved in the state postconvic t i o n hearing and, under § 2 2 5 4 ( d ) (2) and (d)(6), he was denied a full, fair, a nd adequate state court hearing o n the issue. W e ag ree with both contentions. 8

1. B u rton’s Frierson proceedin g s did not resolve whether B urton’s sole purpose was to delay trial

Most fundamentally

, the district court was not required to presume that B urton asked to r epresent himself for the s o l e pu rp ose of d elay

ing trial b ecause the merits of that f actual issue were not resolved in B urton’s Fr i e r son proceeding s. See 28 U.S.C. § 2254(d)(1) (1994); see C h acon v. W

ood

, 36 F .3d 1459, 1465 (9th Cir. 1994) (hol d i n g that there was “no relevant state court finding to which deference was d ue under 28 U.S.C. § 2254(d)” because the state court’s “finding s [ we] re not respons i v e to [ the petitioner] ’s contention”). I ndeed, that factual issue was not even relevant to B urton’s Frierson claim.

B e fore we ca n ex plain why the California Supreme Court’s Frierson f

i n d ing s did not r esolve the timeliness o f B urton’s F

a retta claim, a b rief overview of the Frierson decision is in order. At issue in F rierson was a d e fense

8 B ecau s e w e co n clu d e t

h at th ese ex cep tio n s to § 2 2 5 4 (d )’ s p resu m p tio n

o f co rrectn ess ap ply

, w e d eclin e to reach B u rto n ’ s altern ativ e a r g u m en t th at, u n d er § 22 5 4 (d )(8 ), th e Calif o rn i a Su p rem e Co u rt’ s f

in d in g is n o t f airly su p p o rted b y

th e reco rd

.B U R T O N V

. D A V I S 34

c o u n s e l ’ s d e c i s i o n

— o v e r a d e f e n d a n t ’ s s t r e n u o u s objections—not to present a particular defense at the g u ilt phase of trial, but to reserve t h a t d e fense for the penalty phase. 7 05 P.2d at 399–400. The California Supreme Court held that the i s s u e w as “ w hether a defense counsel’s traditional power to control the conduct o f a case includes the authority to withhold the p resentation o f any d e f en s e at the
g uilt/special circumstance stag e of a capital case, in the face of a defendant’s openly ex pressed desire to present a defense
at that stag e.” Id. at 401. A s the court observed, “this issue is quite distinct f

rom the que s t i on w hether trial counsel provided competent representation.” Id.

I n F rierson’s case, the court had “little do u b t t h at trial counsel’s actions refl ec t ed his judg ment as to the most promising trial strateg y ,” id. at 402, but nevertheless held that “counsel could [ not] properly refuse to honor [ t he] defendant’s clearly ex pressed desire to present a de fense at that stag e,” a rig ht that was related to a defe n d a n t ’ s Six th Amendment r ig ht to “‘personally

. . . make his defense.’” Id. at 403 & n.4 (quoting Faretta , 422 U.S. at 819). The court

emphasi z e [ d] that [ its] holding rests on the fact that the record in this case e x p ressly reflects a c o n f

l ict between defendant a nd counsel over whether a defense was to be presented a t the g uilt/special circ u mstance stag e.

. . . Thus, n othing in th is opinion is intended to sug g est that—in the a b s e nce o f such an ex p r e ss conflict—a c o urt is r equired
to obtain an on-the-re cord, personal w aiver from the defendant whenever defense counsel chooses to rest without putting on a defense.B U R T O N V

. D A V I S 35

Id. at 405 n.8. The court thus rever sed F rierson’s penalty judg ment. Id. at 406.

As the California Supreme C ourt ex plained in B urton’s postconviction proceeding s, “ Frierson means that ‘a defense counsel’s traditional power to control the conduct o f a case does not include the authority to withhold the presentation o f
any defense at the g uilt/special circumstance stag e of a capital trial when the defendant openly ex presses a desire to present

a d efense at that stag e and when there e x ists credible evidence to support that defense.’” In re Burton
, 147 P.3d at 1020 (q u o t i n g People v. Milner

, 753 P.2d 669, 6 81 (Cal. 1 988)). A d efendant’s Frierson rig h t comes into play “ only in [ the] case of an ex pr e s s conflict arising between the defendant and counsel.” Id. (quot ing People v. Bradford

, 939 P.2d 259, 318 (Cal. 1997)).

W h en the C a l i fornia Supreme Court referred B urton’s postconviction claims to a referee for finding s, it did not ask the referee to rule o n B urton’s Faretta c l a i m

. I nstead, it asked the referee for finding s on B ur t o n ’ s F rierson c laim. These are different inquiries, re p resenting different rig hts, althoug h there may be some overlap. See Frierson
, 705 P.3d
at 403 & n.4

. According ly

, w hen the referee issued his finding s, he nece s sarily f ocused on what Slick believed B urton wanted him to d o w i t h respect to trial strateg y , not whether or why

B urton wished to represent himself.

The California Supreme Court made that quite clear to the referee. Here is the six th reference q uestion pu t t o the referee: “Did Slick have reason to believe that Petitioner’s in
court r equests to represent himself w ere made for the purpose of delay ing trial, rather than dissatisfaction with Slick’s trial strateg y ? ” The f

irst six words of that q

uestion are c r i tical.B U R T O N V

. D A V I S 36

D id Slick h ave reason to believe? The question could hav e asked a bout B urton’s purpose directly

, but instead, consistent with F rierson
, it asked about what Slick had reason to believe about B urton’s purpose and whether there was a conflict between them. The refer e e c o u ld n ot have been clearer on this point: “W hat difference does it make [ what B urton was thinking ] ? The question is what’s g oing on in Slick’s mind, not Mr. B urton’s mind.”

The referee’s finding s were confined by the limited scope of the question. The referee beg an his r esponse t o t he six th refe r ence question by f

ocusing on Slick’s testimony

. Slick testified that B urton told him he was “not ready to g o to trial” and “[ c ] ouldn’t present a reason” a n d that Slick “did not believe that Petitioner’s requests to represent himself on four occasions in Aug ust 1983 indicated a dissatisfaction with Mr. Slick’s t r i al strateg y

. ” The referee then pointed to Slick’s stated b elief that B urton was “not emotionally ready to g o to trial a t that time.” So far, these finding s g o directly to what Slick had reason to believe and only indirectly t o what B urton’s a ctual pur

p o s e was. As evidence of B urton’s motivation, this evidence would be hearsay

.

The referee then looked to whether other e v i dence corroborated Slick’s statements. The referee pointed, first o f all, to B urton’s statement that other death row inmates tended
to have their case s c o n t inued long er, a conclusion that was unsurprising since Slick had already asked for a c ontinuance in his case. H e also noted that B urton had refused to meet on

one occasion w ith Dr. Michael Maloney

, a psy cholog ist hiredB U R T O N V

. D A V I S 37

by Slick. 9 The referee f ound that Burton’s statement a nd B urton’s r efusal to meet with the p sy cholog ist “sug g est[ e d] ” that B urton was n ot “truly interested in v ig orously defending his case.” These finding s all suppor t the referee’s ultimate finding

, in response to the reference question, that Slick did have reason to believe B u rton’s requests to represent himself

were made for the purpose of delay ing trial, and not because B urton disag reed with Slick’s strateg y

.

The California Supreme Court’s own finding s a re similarly l i m i t e d

. After noting Slick’s testimony that “it is
not unusual for defendants to prefer to delay trial and to g ive the appearance of bei n g a b l e to ‘ wait it out,’” and that “B urton, wh o w as facing a capital trial, was such a defendant,” the court t h e n proceeded to d iscuss whether “Slick’s assessment of B urton’s motivation w as corroborated by other evidence a t the hearing

. ” In re Burton
, 147 P.3d at 1026. A lthoug h the c ourt found that B urton’s “g ame play ing ” w ith the psy cholog ist and his sta t e ment that other inmates with d eath penalty cases a ll tended to have their cases continued long er were “fully consistent with a d efendant w ho

was interested in delay for delay ’s s ake,” those statements must be read in contex t. I n contex t, the court was identify ing

9 T h e ref eree did n o t

m en tio n th e reaso n

B u rto n g av e f o r d eclin in g th e in terv iew

. Dr. Malo n ey stated in h is declaratio n th at “ [B u rto n ] to ld m e th at h e w an ted n o th in g to d o w i t h Mr. Slick an d w as rep resen tin g h im self .” In th e n ex t sen t en ce, Dr. Malo n ey ad d ed th at h e w as later ab le
to in terv iew

B u rto n reg ard in g h is b ack g ro u n d

.

No r d id th e ref

eree m en t io n t h a t a w e ek bef o re Dr. Malo n ey f

irst
attem p ted to in terv iew B u rto n , B u rto n co o p erated w ith a d if f eren t ex p ert, D r

. K au sh al Sh arm a. B u rto n to ld Dr. Sh arm a h e w as in n o cen t, an d D r

. Sh arm a rep o rted to Slick th at i f B u r t o n ’ s claim w as tru e, th ere w as

n o th in g to su

p p ort a m en tal state d ef

en s e.B U R T O N V

. D A V I S 38

evidence that “corroborated” “Slick’s assessment of B urton’s motivation” and that refuted B urton’s arg ument that “the only reasonable inference t o be drawn from his Faretta motions [ wa] s that h e wanted to defend ag ainst the state’s case.” Id. (internal quotation marks omitted).

The court thus made clear that B urton’s Faretta motions

were considered only for the purpose of determining whether they w ould “s u p p o rt B urton’s Frierson claim.” Id. at 1025;

see also i d

. a t 1026 (“B urton’s Faretta motions reflected a dissatisfac t i o n w i th Slick’s failure to d elay the trial, n ot a dissatisfaction with Slick’s trial strateg y .”). Concluding that it was p ossible for Slick to infer that B urton was motivated b y delay is not the same as c oncluding that B urton actually intended to delay

trial for delay ’s sake.

To be sure, some of the referee’s and the C a l i fornia Supreme Court’s finding s seem to g o d i rectly to B urton’s actual motives. F or ex ample, the referee c o n cluded his
response to the six th r e f

erence question by stating

, “Petitioner tried to delay

the matter by

seeking to represent himself, but th o s e r equests were denied.” Similarly

, the California Sup r eme Court c oncluded that “B urton plainly was dissatisfied with t he imminent a pproach of his capital trial, and Slick wa s aware of the fact his client was dissatisfied.” Id. at 1029.

B u t say ing that B u rton “tried to d elay the matter” or was “dissatisfied w ith the imminent approach of his c apital trial” does not mean th a t t he requests were a “tactic to secure delay .” F ritz
, 682 F .2d at 784. Fritz made it clear that a mere showing that a defendant wants to delay trial is not enoug h:B U R T O N V

. D A V I S 39

Delay per se i s n ot a sufficient g round for deny ing a de fendant’s constitutional rig ht o f self-representation. Any m o tion to proceed
pro se that is made on the morning of trial is l i k ely to cause delay ; a defendant may nonetheless have bona fide reasons for not asserting his rig ht until that time, and he may not be d eprived of th a t r ig ht absent an affirmative showing of p urpose to sec u re delay

.

Id

. ( c itation omitted). There is a very important distinction between wanting to delay trial for leg itimate reasons a nd wanting to delay trial for t h e purpose of securing d elay

. 1 0 Moore wanted to delay t r i a l

, s ee Moore
, 108 F .3d a t 262 (Moore asked for a continuance “to prepare for trial”), and so did A rmant, Armant
, 772 F .2d at 554–55 (Armant a sked for three weeks to prepare and answered “ no” when the trial j udg e a sked if he was “prepared to g o to trial in this m a t t e r today ”). Y et in both cases we concluded t h at n othing in the record sug g ested that the requests w e re made solely for the
purpose of del a y

. S

e e Moore
, 1 08 F .3d at 264; Armant
, 772 F .2d at 5 56; see also id. at 556 n.1 (ex plaining that the petitioner’s leg itimate purpose th r o u g hout the proceeding s

10 T h e d issen t accu ses u s o f m i sco n stru in g Fritz w h en w e d iscu ss

w h eth er B u rto n

h ad a “ so le p u rp o se” o f d elay

. Dissen t Op . 6 6 n .3 . T h e p ro b l em w ith th e d issen t’ s assertio n is t h at it ig n o res th e im

po rta n t d istin ctio n d raw

n in Fritz itself

: th at “ [d ]elay p er se is n o t a su f f icien t g ro u n d f o r den y in g a d ef

en d an t’ s co n stitu

tio n al rig h t of self

rep resen t a t i o n .” 6 82 F .2 d 7 8 4

. In stead

, o u r f ram in g o f th e issu e is

n o th in g m o re th an a reco g n itio n th at n early all Fa retta req u ests w ill h av e

an in h eren t co m

po n en t o f delay

, an d th e co u rts’ task is to sif t b e t w e en Fa retta req u ests w ith “b o n a f id e reaso n s” u n derly in g th em , an d th ose

m o tiv ated m erely

b y a d esire to d elay

f o r d elay ’ s sak e. Id

.B U R T O N V

. D A V I S 40

“was to be afforded an opportunity to conduct his defense a s he thoug ht best”).

Here, no o ne questions that B urton wanted to delay trial; he clearly did. The questi o n i s why he wanted to delay trial—did h e have leg itimate, g o o d f aith reasons, or was this

a bad-faith a ttempt o n h is part to d elay trial for the mere purpose of delay

ing trial? I n o ur view, t h e C a l i fornia Supreme Court never conclusively answered this question, in larg e measure because the court was focused on a d i f ferent question.

I f any thing

, the California Supreme Court’s opinion a nd the referee’s report bot h s u gge st that the delay w as not B urton’s sole purpose and that B urton in fact did ask to delay trial for leg itimate reasons. The California Supre me Court found that B urton “seemed focused o n i nvestigating all possible avenues of defense, including defenses of a l i b i a nd mistaken identification.” In re Burton
, 1 47 P.3d a t 1028; c f. Armant
, 772 F .2d at 556 n.1. A nd the referee found that “the credible evidence adduced at the Reference Hearing was that Pe titioner was concerned about h ow quickly his case was moving forward and that h e thoug ht that Mr

. Slick was not devoting e noug h time to his c ase.” Cf. Moore
, 108 F .3d at 262 (Moore told h i s j u d ge “that he had doubts about his court-appointed lawy er” a n d, o n another occasion, “eng ag ed in a le ng thy discussion” w ith the court “about his dissatisfaction w ith h is lawy er and h is desire to represent himself”)

. A lthoug h these finding s were not e noug h to establish a Frierson c laim, they positively support Bu r ton’s contention that his Faretta requests were not a tactic to secure delay

. See Fritz
, 682 F .2d at 784.B U R T O N V

. D A V I S 41

T h e State arg ues that the referee p roperly determin e d B urton’s subjective purpose in see k ing to represent himself and that the Califo rnia Supreme Court a ccepted that determination. I n particular, the State contends that the six th ref e r e n c e question a c tually does put at issue B urton’s
p urpose, notwithstanding the q u estion’s ex press focus on Slick’s understanding

. T his is so, the State arg ues, because “Slick testified at the reference h e a ring t hat he could only

answer reference question No. 6 on th e b asis o f Petitioner’s
statements to Slick.” Thus, “an y f a ctual finding s reg arding Petitioner’s statements to Slick, a n d the corresponding inferences that could b e drawn from those statements as to Petitioner’s actual motive to d elay the trial, were properly encompassed within the scope of the reference question.”

W e d o n o t doubt that the six th reference question encompassed the possible “inferences t hat could be drawn” from B urton’s statements. I t is hard to imagi n e h o w else a factfinder would g o about determining whet h er Slick h ad

reason to believe that B urton’s Farett a r e q u ests were made for the purpose of delay

ing trial rather than for the purpose o f

ex p ressing a desire to present a d e f e nse. B ut Fritz does not ask whether invoking Faretta with a purpos e to delay is a permissible “ i nference that could be drawn” by a sing le
person, the petitioner’s l a w y er; it asks whether the defendant’s actual and sole purp ose was to delay trial a nd instructs that the defendant’s purpose is to b e determined from the totality of the circumstances both leading u p to a nd following the request. S

ee id. at 784–86. Under Frierson
, the question is entirely different—the question is, as the referee candidly put it, “what’s g oing on in Slick’s mind, n ot [ what’s
g oing on in] B urton’s mind.”B U R T O N V

. D A V I S 42

W e thus conclude that the merits of B urton’s actual
purpose in seeking to r epresent h i m s e l f were not decided in the Frierson proceeding s. Under § 2254(d)(1), t h e n, the district c ourt was not required to presume that B u r t o n’s request was a mere delay

tactic.

2. B u rton’s Frierson proceeding s did n o t afford a full, fair, and adequate hearing on his p urpose in seeking to represent himself

Even if the Californi a Supreme Court had found that B urton’s Faretta motions were a m e r e delay tactic, B urton

never received a full, fair, and adequate hearing on that issue. See 28 U.S.C

. § 2254(d)(2) ( “factfinding procedure

. . . not adequate to afford a full a

nd fair h earing ”), (d)(6) (“applicant di d n o t receive a f

ull, fair, and adequate hearing ”) (1994). The F rierson proceeding s were inadequate to fully and fairly resolve B u rton’s Faretta claim for at least three reasons.

a. T h e b urden of proof was not p laced on th e g overnment

F ew thing s are more integ ral to the fairne ss of a court’s factfinding procedure than placing the burden of proof on the rig ht party

. Yet h ere, by proceeding under Frierson instead of Faretta
, the State shifted th e b urden of proof from the State, w here it belong s, to B urton, where it does not belong

.

As we ex plained in Fritz
, the burden is on the S t a t e , n o t the defendant, t o make “ an affirmative showing ” that a defendant’s pre-empanelment Faretta request is made for the
purpose o f delay

ing trial. Fritz
, 682 F .2d at 7 84; see also id. ( “ [ A ] m o tion to proceed pro se is timely if made before theB U R T O N V

. D A V I S 43

jury is empaneled, unless it is shown t o be a tactic to secure delay .” (emphasis added)); Moore , 108 F .3d at 264 (same).

Frierson reverses that b urden of p roof. As the California Supreme Court made clear in B urton’s case, it was B urton’s burden to p r o v e his Frierson claim. See In re Burton
, 147 P.3d at 1022 (accepting Slick’s account of event s “because B urton, despite offering an array of objections, f ails
to identify a convincing rationale for rejecting it”); id. at 1028 (ag reeing with the referee that “B urton failed to rebut, b y a preponderance of the evidence, Slick’s testimony that he h ad discussed his trial strateg y at the g uilt phase with B urton a nd that B urton di d not object to it”); id. at 1029 (discussing the “defendant’s b urden in establishing a Frierson claim”). This difference in burden of proof is reason alone not to apply the presumption of correctness in this case.

I n many ca s es, the burden of p roof c ould completely determine the outcome of the constitutiona l c laim. I ndeed, this case is a g ood ex ample. B ecause t h e re was no ex press, on-the-record conflict over defense s t r ateg y , B urton had to take the position that the “only r ea s o nable inference to be drawn f r o m h is [ statements] is that he wanted to d efend
ag ainst the state’s case.” Id. at 1026 (internal quotation marks omitted). Under th i s d e manding burden, if the evidence shows that his actions were consistent with an intent
to delay for delay ’s sake, he f ails to meet his burden a nd loses.

B y contrast, t he Six th Amendment inquiry places the burden of proof on the S tate and r equires the c ourt to “ex a mine the events preceding t h e motion, to determine whether they are consistent w ith a g o od faith assertion of the Faretta rig ht.” Fritz
, 682 F .2d at 784. I f the evidence showsB U R T O N V

. D A V I S 44

that the petitioner’s actions w ere consistent with an intent to delay for leg itimate reasons (such as a c onflict wi t h c o u n sel

as to the adequacy of pretrial investig ation), the State fails to meet its burden and loses.

Given that the State bears the b u r d en o f proving that a defendant’s Faretta motion was a delay tactic, it w ould be manifestly u nfair to bin d Bu r t on to an a dverse f actual determination made in proceedin gs in which he bore the burden of proof and the State g ot the benefit of the doubt.

b. The proper leg al standard was not applied

I n addition to placing the burden of proof on B u rton, the California Supreme Court n ever considered the timeliness o f B urton’s Faretta motions u nder the p roper leg al standard. I n Fritz
, we described the proper inquiry as follows:

I n determining whether a defendant’s request to defend himself is a t a c t ic to secure delay

, the court may , o f course, consider the resulting effect o f delay

. A showing that a continuance w ou l d be required and that the

r e s u l t i n g d e l a y w o u l d p r e j u d i c e t h e prosecution may be evidence of a defendant’s dilatory intent.

. . . T he inquiry

, however, d o e s not stop there. T he court must a l s o

ex a mine the e v e n ts pr e c eding the motion, to determine w hether they are consistent with a g ood faith assertion o f the F aretta r i g ht a

nd whethe r t he d efendant c ould reasonably be

ex p ected to have made the motion at an earlier time.B U R T O N V

. D A V I S 45

682 F .2d at 784–8 5

. F

ritz thus requires courts to “consider the totality of the circumstances leading up to [ th e] F aretta motion and the effect t hat g ranting the motion would have had on the proceeding s.” Avila

, 298 F .3d at 753.

Neither the r eferee n or t h e California Supreme Court considered any of these factors. Of course, there is no reason why they should have—the court was deciding a Frierson claim, no t d eciding w hether a Faretta motion was timely

. I ndeed, the California Suprem e C o urt even emphasiz e d that it would consider the referee’s finding s “only insofar as they

are relevant to [ the c ourt’s] analy sis of B urton’s claim that he

was d e nied the rig ht to present h i s d e sired d efense under Frierson .” In re Burton , 147 P.3d at 1019.

W h atever their reasons, the bottom l i n e is that the California courts never considered the timeliness of B urton’s Faretta requests under the proper inquiry

. I t w as thus not only appropriate but necessary for the d i s trict court to conduct the proper inquiry in the first instanc e

. See F ritz
, 682 F .2d at 784–85 (holding

, u n der former § 2254(d)(6), that the state court’s finding that Fr i t z ’s F aretta motion “was a tactic to delay his scheduled trial ” w a s not entitled to a presumption of correctness because the state court did not “ma[ ke] an ex press inquiry into F ritz ’s p urpose,

. . . focusing instead on the n ature of the F a retta rig ht and on F ritz ’s ability
to waive knowing ly h is rig ht to counsel” (citation and internal quotation marks omitted)); cf. Pierce v. Cardwell

, 572 F .2d 1339, 1342 (9th Cir. 1978) (holding that it was necessary for the district court to c onduct an evidentiary h earing because “certain statemen ts b y the [state] trial judg e

. . . create[ d] doubt as to whether he applied the correct test in d etermining whether Pierce had waived h is rig hts after requesting an attorney ”).B U R T O N V

. D A V I S 46

To be clear, we d o n o t hold that B urton’s Frierson proceeding s were inadequate to resolve his Frierson clai m;

we o nly hold that the Frierson proceeding s were inadequate
to resolve his Faretta claim

. A s t ate court hearing may be full, fair, a

nd adequate as to one issue, but not fu l l

, f air, a nd

a d equate as to another. The Seventh Circuit’s decis i o n i n Allen v. Buss
, 558 F .3d 657 (7th Cir. 2009), illustrates this point. Allen, the petitioner, soug ht state p ostconviction relief

on the g round that h is ex ecution was prohibited by A tkins v

. Virginia
, 5 3 6 U.S. 304 (2002). Id. at 662. T he I ndiana Su p r eme Court rejected the Atkins claim, reasoning that because the trial c ourt had g iven little weig ht to Allen’s claim of mental disability

as a mitig ating factor, Allen had already “had a full and fair opportunity to litig ate the issue of whether he is mentally retarded” for Atkins purposes. Id. ( citation a nd internal quotation marks omitted). On federal habeas review, the State maintained that “the I ndiana courts found Allen to be n o t mentally retarded and

. . . th a t s u c h finding s a re presumed correct on habeas review.” Id. at 663.

The Seventh Circuit disag r eed. I t no t ed, first, that “the
tr i a l c o u rt’s analy sis makes clear that it eng ag ed in a substantively different inquiry from t h at mandated b y Atkins .” Id. I t then noted that the state’s sentencing order did
not conclude that Allen w as not mentally disabled; it instead found that Allen’s evidence showed “a v ery slig ht mitig ating factor” that was insufficient t o overcome other ag g ravated circumstances. Id. Thus, the court c oncluded, “B ecause the I ndiana state courts never considered Allen’s evidence using the proper Atkins inquiry ( which would have requi r e d them
to apply the a

ppropriate standard f

or mental retardation), it is obj e c t i v e ly unreasonable to conclude that Allen had a ‘ full and fair’ hearing

on his Atkins claim.” I

d. at 664.B U R T O N V

. D A V I S 47

J ust as the state co u r t f

ailed to consider Allen’s Atkins claim under the proper inquiry

, the California Supreme Court has never c onside r e d the timeliness of B urton’s Faretta requests under the proper inquiry

. Nor can we assume that the California Supreme Court implicitly did so, for i t was deciding B urton’s Frierson claim, not his Faretta claim, a nd thus had no reason to c o nsider the required factors outlined in Fritz

.

No California c ourt has ever considered B urton’s Faretta claim under the proper federal standard. B ecause we only presume a state court’s finding s to be correct if the test used
t o r each those finding s was correct, see Fritz
, 682 F

. 2d at 785; P ierce
, 572 F .2d at 1342, B urton w as entitled to have the district court r esolve the timeliness of his Faretta claim under the proper substantive inquiry

.

c. Key aspects of the record were not considered

Not only did the California Supreme Court n ot resolve the timeliness of B urton’s F

aretta motions under the proper leg al standard; it also declined to c o n s i d e r f acts material to the federal timeliness rule. “ Fa i lure to consider key aspects o f the record is a def

e c t i n t h e fact-finding process.” Taylor v

. Maddox , 366 F .3d 992, 1008 (9th Cir. 2004).

I n F rierson
, the Cal i f

o r n ia Supreme Court h eld that a capital defendant’s trial counsel is required to comply with a defendant’s clearly expressed desire to present a g uilt-phase defense, at least where there is credi b le evidence to support that defense. 705 P.2d a t 4 0 3

. I n B urton’s case, because there was no “ c l e a r and ex press c o n flict over defense

s t r a t e g y ” on the trial court record, In re Burton
, 147 P.3d at 1021, B urton faced a steep uphill battle. He had to p rove thatB U R T O N V

. D A V I S 48

his statements to Slick and K leinbauer, tog ether with his
statem e n t s on the record—including his four Faretta motions—amounted to a clear, open, and unequivo c al

ex p ression of his desire to present a d efense. Id. at 1021–29;

see id. at 1028 (“[ W] e reiterate that a d efendant must clearly and openly

— and, thus, u nequivoca l ly —ex press a desire to present a particular defense in order to establish a v iolation o f Friers o n

. ”)

. I n order to show that his Faretta requests amounted to an unequivocal ex pr ession of his desire to present a defense, B urton had to prove that such a desire was “the only reasonable inference to be d rawn” from his in-court
statements. Id. at 1026 (emphasis added) (internal quotation marks omitted).

I n c ontrast to the Faretta t i m e l i ness inquiry

, where the defendant’s pu r

p o se is all that matters, under Frierson it is defense c ounsel’s u nderstanding o f t h e defendant’s wishes that matters. See id. a t 1 028–29 (ex plaining that the purpose of the clear-ex

pression r equirement is to “prov i d e [ ] counsel with the necessary sig nal of the d ef e n d ant’s wishes concerning his or her defense” and to “reduce[ ] the likelihood of ex tensive after-the-fact debate a s to what those wishes mig ht have been” (emphasis added)). Accor d i n gl y , the key issue on B ur t on’s Frierson claim was not whether B urton wanted to present a defense or whether he wanted to represent himself for other leg itimate reasons; it was whether Slick was on notice that B urton wanted to present a defense. Frierson and Faretta r ecog niz e different interests defendants have. A defendant may admire his attorney for h is skill but disagr e e with the strateg y ; that is a Frierson problem, but not a Faretta problem. On the other hand, a defendant may a g ree with his attorney on the strateg y but believe the a t t o r n ey is laz y o r incompetent; that is a Fa r e tta problem, but not a Frierson problem.B U R T O N V

. D A V I S 49

That only F

rierson was at issue in B urton ’s state postconviction proceeding s is borne out by the questions the C a l ifornia Supreme Court posed to the referee. All of t h e q u estions addressed, in one way or another, whether B u r t o n put Slick o n notice that h e w anted a g uilt phase defense. None of the questions addressed B urton’s subjective desire to represent himself. I ndeed, none of the questions required any determination of Bu r ton’s state of mind—his intentions, his
purpose, his g ood or bad faith. Rather, the questions focused

on what B u rton told Slick, what Slick knew or believed, a nd what Slick heard B urton tell the trial judg e on the record. F o r

ex a mple, the court asked the r eferee:

1. Did petitioner g ive attorney Ron Slick

. . . the names of w itnesses h e b elieved should be interviewed and tell Slick that those witnesses could support a g ui lt phase defense or defenses?

. . .

2. Did p e t i tioner tell Slick that petitioner’s purport e d confession had been falsified?

. . .

6. Did Slick have reason to believe that petitioner’s in c ourt requests to represe n t himsel f w ere made for the purpose o f delay ing trial, rather than dissatisfaction with Slick’s trial strateg y ?

Id. at 1018–19 (emphasis added).

The r eferee a

pparently got the messag e. At the hearing

, B urton testified that Kleinbauer was not the first person w ho
t o l d him that he could demand to represent himself. W h e nB U R T O N V

. D A V I S 50

the State’s a ttorney asked B urton when he h ad first learned that he could d o so, B urton’s attorney objected to the question

as irre l e v a n t a n d bey ond the scope. The referee ag r eed: “I just continue to fail to see the r elevance there.

. . . Advice he
g ot from persons other than Kleinbauer seems to

. . . me to be
very irrelevant.” The r eferee may very well have be e n r i g ht that the timing of when B urton learned that he could seek to represent himsel f was irrelevant to the Frierson c laim. W e

ex p ress no op i n i o n on that issue. B ut surely such evidence would be relevant to d etermining whether B urton’s r equest to represent himself was made in g ood faith. See Fritz
, 682 F .2d at 784.

J ust as t he referee e x cluded evidence relevant to the Faretta timeliness inquiry

, t he California Supreme Court disreg arded such evidence when it was raised by B urton. F o r

ex a mple, even thoug h B u rton’s statements to the t rial judg e sug g ested that B urton was interested in pursu ing additional investig ation of his case, the court found t h o s e statements irrelevant to its analy sis under Frierson because B urton “never ex pressed a desire to Slick that any particular defense be presented.” In re Burton
, 147 P. 3 d at 1028. The court then added:

Bu r t o n i n s t e ad s ee m ed f o c u s e d o n investigating all possible avenues of defense, including defenses of alibi a n d mistaken i d e n t i f i c a t i o n , b u t clea r l y an d o p e n l y

ex p ressed a desire onl y t h at all o f these investig ations b e completed before trial. Frierson
, however, doe s n ot require that an

a t torney defer to a client’s wishes as to t h e scope or duration o f pretrial investig ation. T h e r e a s o n a b l e n es s o f t h e a t t o r n e y ’sB U R T O N V

. D A V I S 51

investig ation is

. . . , as t h e p a r ties concede, bey o nd the scope of the order to show cause.

Id. Once ag ain, the court may well b e rig ht that an attorney

client dispute over the reasonableness of pretrial investig ation is irrelevant to a Frierson c laim. B ut it c an hardly be denied that a conflict ove r t h e scope of pretrial investig ation is relevant to the purpose-to-delay question under Faretta

. See Armant
, 772 F .2d at 554 (finding no evidence o f p urpose to delay w here Armant complained of diffi c u l t ies w ith his attorney , inclu d i ng his attorney ’s failure to subpoena a

w i t ness and g ive him a c opy of the p reliminary heari n g transcript); Fritz
, 682 F .2d at 785 (remanding to the d istrict
court for an evidentiary h earing because the state court h ad
not adequately developed facts material to t h e p urpose-todelay inquiry

, including “when it became clear that F ritz a nd [ his trial counsel] had irreconcilable differences”).

This w as not the o nly instance in which the court discarded facts that may h ave b een irrelevant to the Frierson inquiry but that were c learly relevant to the Faretta inquiry

. See, e.g. , I

n re Burton
, 147 P.3d a t 1024 (“Klei n b a u e r’ s recollection of B urton’s statements

. . . d oes not indicate that he clearly ex pressed a desire to present a defense as opposed
to a desire f

o r f u r ther investig a tion before a final tactical decision c ould be made.”); id. a t 1025 (rejecting arg ument that B u rton’s F

aretta requests constituted a clear request to present a defense because “his c omment s were mostly directed to the question whether c o u n s e l had adequately investig ated”). Perhaps most notably

, the cour t e v e n aff i r m a tively found that “ [ t] he record

. . . supports Kleinbauer’s testimony that B urton was dissatisfied with Slick.” Id. at 1 0 2 3

. Althoug h this would surely be relevant
to the F a retta inquiry

, see Fritz
, 682 F .2d at 785, theB U R T O N V

. D A V I S 52

California Suprem e Court dismissed it, noting that “Kleinbauer’s testimony

, however, does not support B urton’s claim that he openly

ex pressed a desire to present a defense,

nor does it undermine Slick’s testimony that he had d iscussed trial strateg y

with B urton.” In re Burton , 147 P.3d at 1023.

I n any event, eve n i f the California Supreme Court h ad considered e vidence g oing to B u rton’s actual reasons for seeking to represent himself, the process would s t i l l have been u nfair to B urton. B ecause B urton’s state o f m i n d was

no t d i rectly relevant to h is F rierson claim and was not submitted as an issue for the referee to decide, B urton was not gi ven fair notice that the Frierson proceeding s would effectively d e c ide his Faretta claim. Under these circumstances, we cannot say that the Frier s o n p roceeding s g ave B urton a full, fair, a n d a d e q uate hearing on the timeliness of h is Faretta requests. See Lankfor d v

. Idaho

, 500 U .S. 110, 121 (1991) (fair notice is “the bedroc k of any constitutionally

fair procedure”).

The State’s arg u m e n t s fail to convince us that the Frierson proceeding s were adequate to resolve the timeliness of B u rton’s Faretta reques t s

. The State first arg ues that it

was B urton who, in his state habeas petitio n , “ placed the question of his a ctual motivation in seeking selfrepre s en t ation at issue.” T rue, B urton’s petition d id a lleg e “that [he] had sou gh t o n f our occasions during the trial to discharg e his attorney and represent himself because o f Attorney Slick’s deficiencies

. ” In re Burton
, 147 P.3d at 1017 ( citation omitted). B ut in conte x t, that alleg ation was clearly intended to support B urton’s p rimary al l eg ation that “bo t h S l i c k and the trial court k new the attorney ’s actions

were contrary to P et itioner’s e x press wishes.” Id. (internal quotation marks omitted). T hat i s , B urton was a lleg ing thatB U R T O N V

. D A V I S 53

h i s four requests to discharg e Slick and represent himsel f because o f Slick’s deficiencies constituted his “ex press w ish”
to put on a defense. T he California Supreme Court clearly understood this contex t , as it framed its six th r e ference
q uestion with reg a

rd to what Slick h ad reason to beli ev e about B urton’s motives in asking to represent himself.

The State also points to two instances in t he r e ference hearing that, it claims, show t h a t Burton “had a full a nd fair opportunity at the reference hearing to litig ate the issue o f his actual p urpose in requesting self-representation.” I n the f irst, B urton’s a ttorney asked K leinbauer whether B u rton had told her “that h e wanted to r epresent himself in order to delay the trial,” to wh i c h K l einbauer a nswered that he had not. (J ust before this testimony

, Kleinbauer testified that B urto n h ad told her that “the pace o f the investig ation, the fact that there

was more to do, was one of the fa c t o r s that led to his dissatisfaction [ with Slick] .”) I n the second, B urton was asked on direct whether he told Slick abou t h i s reasons for seeking self-representation, to w hich B urton answered that he had told Slick the reason was “becau s e the investig ation in
my case wasn’t completed.”

B u t these questions only show that some facts that would have been relevant to B u rton’s Faretta c laim were developed; this falls far short of showing that the fact s were f ully developed such that B urton received a full, fair, and adequate hearing on that claim. Cf. Fritz
, 682 F .2d at 785 (state court’s purpose-to-delay finding not entitled to a presu m p t i on o f
correctness even thoug h “much of the e vidence adduced at the [ state court] hearing s is pertinent to F ritz ’ s motivation”). Even as we acknowledg e that some Faretta -relevant fa c ts

were developed in the ref e r en c e hearing

, the State has not shown that a

ny o f th e s e material facts were actuallyB U R T O N V

. D A V I S 54

considered by the Ca l i f

o r n i a Supreme Court. Quite to the contrary , th e court ex pressly declined to consider such evidence. See, e.g. , In re Burton
, 147 P.3 d a t 1 028 ( a c k n o w l e d g i n g t h a t B u r t o n “ s e e m e d f o c u s e d o n investigating all possible avenues of defense” but concluding that “[ t] he reasonablen e s s of the attorney ’s investig ation is

. . . , as the parties concede, bey ond the scope of the order to show cause”).

* * *

To summariz e, we conclude that the district court was entitled to determine B u rton’s p urpose in seeking to represent himself. W e r e a c h this conclusion for two independent

reasons. F irst, “[ t] here was

. . . no r elevant state court finding
to which deference w as due u nder 28 U.S.C. § 2254(d).” Chacon

, 36 F .3d at 1465; see 28 U.S.C. § 2254(d)(1) (1994). The California Supreme Court only found that S lick h ad “reason to believe” B u rton’s purpose was to d elay trial; it did
not and, in fairness to B urton, could n o t f i nd that B urton actually intended to delay

trial for the mere sake of delay

.
Second, the Frierson p r o c eeding s before the California Supreme Court did not a f

ford B urton a full, fair, and adequate hearing on the ti m e l i n ess of his Faretta requests. See 28 U.S.C. § 2254(d)(2), (d)(6) ( 1994). A ful l

, f a i r , a nd adequate hearing would have placed the burden of proof on the State, not B urton; would h ave afforded B urton notice that h e w as litig ating h is actual p urpose in seeking to repres e n t himself; and would have deemed relevant evidence of what’s going on in B urton’s mind, not just “ what’s g oi n g o n i n Slick’s mind.” More fundamentally

, a full, fair, and adequate hearing w ould have applie d t he actual inquiry r equired for resolving the timeliness of Faretta requests. See F ritz
,B U R T O N V

. D A V I S 55

682 F .2d at 785 (state court’s purpos e -to-delay finding not entitled to a presumption of correctness under § 2254(d)(6) in part because state courts made no “inquiry into F ritz ’s purpose”); i d

. a t 7 84–85 (setting out the proper inquiry); c f. A l l en , 558 F .3d a t 663. The State does not contest that t h e California Supreme Court applied an entirely different inquiry

, and we f

ind its arg uments that B urton was on notice that h e w a s l itig ating two c laims for the price of o ne wholly unpersuasive. To the ex tent the California Supreme Court’s decision on B urton’s Frierson claim can be read a s determining the ultimate fa c t ual issue of B urton’s intent in asking to represent himself, that determination is not entitled to a presumption of correctness.

V

Having d etermined that the distr i c t court was not bound by any relevant state court finding

, we n ow r eview the district court’s determination o f the timeliness of B urton’s Faretta requests. A request to represent oneself must be accepted so long as the request is unequivocal, time l y (i.e., made before the jury is empaneled), a

nd not intended to secure a delay in the proceeding s. Armant
, 772 F .2d a t 555 (citing F ritz
, 682 F .2d at 784). The Stat e d o e s not d ispute that B urton’s requests were unequivocal and made b e f o r e the jury was empaneled; thus, the requests were “timely as a matter o f law unless [ they

were] a tactic to secure delay .” Id.

Ba s ed o n its own review o f the record evidence, the district court concluded tha t B u rton’s “stated reasons for asserting his r igh t to self-representation were leg itimate a nd
not made solely for the p urpose of delay .” Aside from the State’s arg ument, which w e h a ve already rejected, that the district court was bound by the California Supreme Court’sB U R T O N V

. D A V I S 56

factual finding s, the State d oes n ot co n t e n d t hat the district

c o urt’s finding was e rroneous. B e cause, however, g r anti n g the writ means sendin g t h is c ase for retrial nearly thirty -two
y e ars after the orig inal trial—a formidable task—we re v i e w the district court’s finding on the merits even thoug h the State has waived the issue.

W e review a district c ourt’s determination that a Faretta motion was not a d elay tactic for cle a r e r r or. See M axwell

, 673 F

. 2d at 1036 (reviewing a “district court’s determination[ that a motion was not a delay tactic] a s [ a] finding [ ] o f fact, which, althoug h based solely on documentary evidence, will be set a side only if clearly erroneous”). Under that standard,

we w ill reverse the district court’s finding s of fact only if we have “a definite and firm conviction that a mistake has been made.” Sepulveda v. Pac. Mar. Ass’n
, 8 78 F .2d 1137, 1139 (9th Cir. 1989).

The district court did not clearly err in findi n g that B urton’s Faretta requests were made for leg itim a t e, not purely dilatory

, reasons. As the district c ourt correctly n oted, it is n ot enoug h for the State to sh o w the defendant would need a continuance in order to prepare his own defense. See Fritz
, 682 F .2d at 784. Of c ourse , the district c ourt may consider whether trial would be d e l a y ed and whether such a delay would prejudice the p rosecution, as well as whether the petitioner could r easonably hav e been ex pected to make the Faretta motion a t an earlier time. Id. at 784–85. Bu t these factors are not dispositive. District courts must consider the totality of the c ircumstances to determine whether the petitioner’s sole purpose in seeking to proceed pro se w as to delay the proceeding s. See Avila

, 298 F .3d at 753.B U R T O N V

. D A V I S 57

The district court found that “Petitioner’s requests to b e allowed to proceed pro se were based on h is complaints that[ ] Mr. Slick was proceed i n g too fast; further investig ation still needed to be conducted; a nd Mr. Slick had b arely met with him since the case beg an

. ” I f these were indeed B urton’s
reasons, they were cert a i n l y leg itimate r easons. A desire to have one’s case fully investig ated is c learly a g ood reason for wanting to delay a capital murder trial. See Armant
, 772 F .2d
at 5 54,556 & n

. 1 ( c oncluding that “nowhere in the record is there even a sug g estion that Armant made this request for the
purpose of delay ” where Armant complained that his attorney failed to subpoena a witness and provide him w ith a copy of

a hearing transcript). And so is dissatisfaction w ith counsel. See Moore
, 108 F .3d at 262, 264 (concluding that “the record d[ id] not sug g est” that “Moore’s r e q u e st was a tactic for delay ” where Moore had told th e t r i a l judg e “that he h ad doubts about his court-appointed lawy er” and had eng ag ed in

a leng thy discussion with the judg e “about his dissatisfaction with his lawy er a

nd his desire to represent himself”); F ritz
, 682 F .2d at 785 (remanding f o r the district court to determine “when i t became clear that F ritz and [ his counsel] h ad irreconcilable differences”).

The record firmly supports the district court’s finding that these were in fact B urton’s reaso n s

. T h e best evidence o f B urton’s reasons f

or a s k i ng to represent himself is the transcript of B urton’s four Faretta motions. W h e n B urton first moved to represent himself, he told the court:

Y o u r Honor, I would like to represent my self due t o the circumstances of lack o f interest as f

ar as the investig ation is concerned with my case. There isn’t any t h at should have b een taken care of. I have n ’ t spent o rB U R T O N V

. D A V I S 58

had e noug h time to communicate with my lawy er because he haven’t g iven me the time, because he feel that to me it is not worth it to him, but to me it is worth it

, b ecause it is my l i f e that is involved and I don’t want to tak e the fall for the real person in this crime.

These are t h e very reasons noted b y the district court: “Mr. Slick w as proceeding too fast; f urther investig at i on still needed to be conducted; and M r. Slick had b arely met with him since the case beg an.”

W h en B urton renewed his request the nex t day

, his dissatisfaction with Slick was o bvious. H e told the court that Slick’s “ l a ck o f interest” was “really out of hand” and that “[ t] his is my reason for wanting to represent my self.” H e also told the court, “I haven’t even seen Ron S l i c k

. I see Ron Slick every time I come to the court and I am tellin’ him the real, but all I am g ettin’ is the fake, the fra m e. ” He also

r eiterated his belief that his case had not been fully investig ated:

I am—th i s i s n o t my crime

. . . . I want to investig ate my case and f ind out all about the
t h i n g s , b e c a u s e t h e i n v e s t i g a t o r t h a t investig ated this case t o l d me personally that something is shaky about my case and t h at Ron is not really

on my side for this case and she wanted to b e with me, to work w i th me, because she know that it is somethin g about this case that is very shaky

.

B u rton was persistent. Six day s after his second request, he renewed his reque s t a g ain. He objected “to beingB U R T O N V

. D A V I S 59

represented b y Mr. Ron Slick” and moved “to resubmit the conflict of interest motion filed verbally on Mr. Slick.”

A y ear and a h a l f a fter the trial, B urton sig n ed a d e c laration in connection with his motion for a new t ri a l

. B urton stated that Slick only came to see him once, for fifteen minutes, when he was incarcerated a t the county j a i l. Slick did c ome to visit him in the c o urthouse be f o r e h earing s, but those meeting s lasted no more than ten minutes. B urton recalled t h a t when he told Slick that he did not commit the crime and that h e did not confess, Slick said he did not beli e v e Bu r t on. B urton stated that Aug ust 10 was his first opportunity to make a statement to the court, and that on that day he told S lick that he felt the case was not sufficiently
prepare d t o g o to trial. He ex p lained, “ I did know from our investig ator that a witness h a d b een located who g ave a different description of the person who did the s h o o ting o f Mr. and Mrs. Khwaja, and I wanted to know why that witness had not been subpenaed [ sic] to come to court.”

B u rton’s statements are corroborated by o ther evidence in the record. At the reference hearin g , Slick testified that he hired Kristina Kleinbauer to investig ate the case a nd g a ve her

a list of tasks, including n u merous w itnesses to interview. Those witnesses included Otis Clements, family members, probation officers, parole officers, and othe r people w ho mig ht have k

nown Bu r t o n

. Slick testified, further, that he considered the tasks that h e had outlined for Kleinbauer to be
necessary to the pretrial investig a t i o n of B urton’s case. Y et when asked whether interviews o f family members, p robation officers, parole officers, a nd others had been conducted at the time h e announced ready for trial, Slick testified, “I think not.” And when asked if, at the time he announced ready for trial, “there really had b een no investig ation into theB U R T O N V

. D A V I S 60

backg ro und of Otis Clements,” Slick a nswered, “I ’m sure that’s corre c t , y es.” Kleinbauer’s testimony was consistent with Slick’s—she testified that b y the time trial beg a n she h ad not y et obtained a b ackg round history of Otis Clem e n t s and

, i n fact, had not done any investig ation reg arding Clements. Thus, there is a mple ev idence to support the district c ourt’s finding t h a t “[ n] o investig ation, bey ond reading t h e police reports, had b een d one e ither into Clements’s statements or his backg r ound.”

Slick told B u rt o n ’ s t r ial judg e just the opposite. W h en B urton first asked to represent himself, S l i c k t o ld the court that he had “ investig a ted this case to the best of [ his] a bility

. ” W h e n B urton asked a g ain the n ex t d ay , Slick told the cour t , “I can only indicate to the court tha t I am prepared for trial and I am a s prepared as I know how to be. I see no reason to d o a n y t hing other than try the case.” The judg e then ask ed

, “I take it that y ou h a v e i n v estig ated his alleg a tion that he is being framed by the co-defendant, Mr. Clements, in this case? ” “Yes, I

have,” Slick replied.

That the inve stig ation was complete was news to Kleinbauer. She said that when she handed Slick a report on Aug ust 1 0 —the day B urton first asked t o proceed pro se—she had no idea that t h e trial w as already underway

. I n fact, she said, “[ she] was still actively e ng ag ed in the investig ation of the case when [ she] learned that Mr. B urton had been convicted of capital murder and the jury had handed out the death penalty .” 1 1

11 W e af f irm th e d istrict co u rt’ s cred itin g of th ese statem en ts, w h ich Klein b au er m ad e in o n e o f h er declaratio n s d u rin g th e co u rse o f B u rto n ’ s p o stsen ten c in g litig atio n

. W h ile th e ref eree d id co n clu d e th at Klein b au er’ s t estim o n y at th e ref eren ce h earin g w as “ v irtu ally n o n

-B U R T O N V

. D A V I S 61

B u rton was clearly aware that his case had not b een f ully investig ated. This is apparent, first of all, from B urton’s incourt statements. I t is also apparent from Kle inbauer’s testimony at the reference h earing

. T h e California Supreme Court credited Kleinbauer’s testimony that “B urton had told her he was not ready to g o to trial and that he was dissatisfied with Slick b ecause t h e trial seemed to be rushing forward.” Id. at 1026 (alteration and internal quotation marks omitted). I t also credited her statement in a 1993 declaration that she had talked wi t h B u rton before the trial and “had instructed B urton to tell Slick that he was not ready for trial, and that the trial should take place nex t y ear some time, a f t e r a ll the investigation was don e

. ” Id. ( emphasis added) (internal quotation marks omitted). These f inding s may have been insufficient to establish a Frierson claim, but they are enoug h
to e stablish that B urton had leg itimate reasons for seeking to represent himself.

T h e record also corroborates B urton’s statements that there was a breakdown in the attorney

- c l ient relationship. Slick testified that B urton was “ang ry w ith me. He didn’t like
me, probably d idn’t like any thing ab o u t me.” W hen he told B urton early on that they were “g oi n g t o lose the [case]
, ” B urton “did not like i t , ” a n d “from then on, there was never a g ood conversation.” According to Slick, B urton’s attitude became “eva s i v e and u ncooperative” and Slick couldn’t “really g et meaning fu l c o mmunication with him.” W h en

ex isten t” an d th at Klein

b au er “ tried to s h ad e h er an sw ers” at th e ref eren ce h earin g in B u rto n ’ s f

av o r, th e ref

eree n ev erth eless relied o n Klein b au er’ s statem en ts in h er p o s t sen ten cin g d eclar atio n s, n o tin g th at “ [th o s e] d eclaratio n s w ere accu rate w h en m ad e.” T h e ref

eree n ev er co n clu d ed th at th ese s tatem en ts, o r an y o f Klein b au er’ s oth er statem en ts th at w e d iscu ss, lack ed cred ib i l ity

.B U R T O N V

. D A V I S 62

Kleinbauer was asked at the reference hearing w heth er B urton had told her why he wanted to represent himself, she answered that “ [ h] e felt dissatisfied with his attorney ” because “there was mor e investig ation that needed to be done.” F or this r eason, she testified, B urton asked h er “what he could do.” She did not know what to do, so she called J eff B rodey , a lawy er.

K l einbauer wrote d own what B rodey told her, a n d h e r notes a re in the record. These notes are valuable, because they provide hard p roof that v erifies B urton’s a nd Kleinbauer’s statements that B ur t on complained to K leinbauer a

bout Slick. The n otes tell B urton to d e mand to be heard on the record, tell h i m that h e has a constitutional rig ht to r epresent himself under a case c a lled Faretta
, and tell him not to accept Slick as co

- c o unsel because he has a “conflict of interest” with Slick an d wants h is attorney removed.

I n sum, the trial court transcript and t h e e v idence a t the reference hearing demonstrate, in th e w o rds of the district court, “that [ B u rton] w anted to be free from having Mr. Slick

as his a ttorney , and that h e h a d a compelling basis f or that desire.” The district court thus did not c learly err in finding that B urton’s Faretta requests were made for leg itimate

reasons.

According due deference to the d istrict court’s f actual finding s, we a ffirm the district court’s conclusion that B urton’s Faretta requests w ere timely as a matter of law. Maxwell

, 673 F .2d a t 1036. B ecause “[ a] n improper denial o f

a request to proceed pro s e

. . . is not amenable to harmless

error analy sis,” the Six th Amendment requires that Bu r t on receive a new trial. United Sta t e s v. M aness , 566 F .3d 894,B U R T O N V

. D A V I S 63

896 (9th Cir. 2009) ( per c uriam) (internal quotation mark s omitted).

VI

Under our precedents, there is l i t t le question that the California Supreme Court’s 1 9 8 9 decision in B urton’s case

was c ontrary to federal law. The California Supre m e C o u rt

ex p ressly dec l i n ed to apply the p urpose-to-delay inquiry we announced in Fritz
, and we have held that Fritz i s binding federal law for purposes of f ormer § 2254. See, e.g. , Moore
, 108 F .3d at 264.

The more difficult quest i o n h ere is whether the district court was bound by the California Supreme Court’s finding

, seventeen y ears later and in t h e contex t of a different c laim, that B urton’s lawy er had reason to b e l i e v e B urton was motivated by delay

. W e hold that the district court was not bound by this finding

. The California Supreme Court never made a f inding on B urton’s actual motives and, even if it had, it improperly shifted the burden of p r o o f t o B urton, a pplied the wrong leg al inquiry , and failed to consider evidence that

w a s hig h ly relevant to the correct inquiry

. Under t h e s e circumstances, we cannot say that B urton received a f ull, fair, and adequate hearing

on his Faretta claim.

W e acco rding ly affirm the district court’s determination that Bu rton’s Faretta motion was timely and that his conviction and sentence must be set aside. The State sha l l, within the time prescribed by the district court, either release B urton or g rant him a new trial.

AF F IRMED.B U R T O N V

. D A V I S 64

O’SCANNL AI

N, Circuit J udg e, dissenting :

The Court affirms the g rant of a petition for writ o f ha b e a s c o r

pus in this death penalty case by holding that the California courts did not determine—in a full, fair, a n d adequate hearing

—the meri t s of Andre B urton’s request for self-representation during h is murder trial. I respectfully disag ree because I am not persuaded that the California Supreme Court decision w as contrary to the Constitution a nd laws of the U n i t e d S tates. Rather, under the version o f 28 U.S.C. § 2254 applicable before the enactment o f the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), habeas corpus should have been denied.

I

A

On F ebruary 25, 1983, d u r i n g a r obbery

, B u r ton shot A n w a r K hwaja in the forehead a n d in the ey e, then shot Khwaja’s mother, fatally

, in the chest. California v. Burton
, 771 P.2d 1270, 1274 (Cal. 1989). B u rton was “smiling o r laug hin g contentedly ” while c ommitting these crimes a nd “chuckled” while escaping

. Id.

B e g inning on Aug u st 1 0, 1983, the day trial was set to start, B urton made four requests to represent himself pursuant to Faretta v. California

, 422 U.S. 8 06 (1975). 1 See In re

1 Fa retta estab lish ed th at “ a def en d an t in a state crim in a l trial h as a

co n stitu tio n al rig h t to p ro ceed w ith o u t co u n sel w h en h e v o lu n tar i l y a n d in tellig en tly elects to d o s o

. ” 4 2 2 U.S. at 8 0 7

. Su b seq u en tly

, b o th th e Nin th Circu it an d th e C alif o rn ia Su p rem e C o u r t h eld th at th e in v o catio nB U R T O N V

. D A V I S 65

Burton
, 147 P.3d 1014, 1024–25 (Cal. 2006). The trial court denied e ach o f t h ose four F aretta requests as untimely

. See id. The jury convicted B u rton of murder and three counts o f robbery , and the penalty was fix ed at death. Id. at 1017.

After the California Sup r e m e Court affirmed B urton’s convictions and death sentence, Burton
, 771 P.2d a t 1291, B urton filed state and federal habeas petitions. I n state habeas proceeding s, B urton alleg ed that he was denied the rig ht to present a g uilt-phase defense under Cal i f o r nia v

. Frierson
, 705 P.2d 396 (Cal

. 1 9 8 5). 2 To evaluate B urton’s Frierson claim, th e California Supreme Court appointed a referee to h ear evide n c e a n d to make finding s of f act in
response to various questions, including : “Did [B urton’s attorney , Ronald Slick ] h a ve reason to believe that petitioner’s in court r e q

uests to represent himself were made for the purpose of d e l a y ing trial, rather than dissatisfaction with Slick’s trial strateg y ? ” Burton , 147 P.3d at 1018.

The referee, a superior c ourt judg e appointed f or this task, heard testimony from 15 witnesses ove r 1 4 c ourt day s. See id. at 1016, 1019. A s part of his finding s of fact, the referee concluded that B urton “tried to delay the [ trial] by seeking to represent himself.” I n 2006, the C alifornia Supreme Court reviewed the r e f

eree’s report, accepted the referee’s f actual finding that B urton’s Faretta motions “ref l e cted a

o f th at rig h t m

u st b e tim ely

. S

ee M a xwell v. S

u mn er , 6 7 3 F.2 d 1 0 3 1
, 1 0 3 6 (9 th Cir. 19 8 2 ); Ca lifo rn i a v. W in d h am , 5 6 0 P .2 d 1 1 8 7
, 1 1 9 1 (Cal. 1 9 7 7 ).

2 Frierso n estab lish ed th at, “ [g ]iv en th e m ag n itu d e o f th e co n s eq u en ces th at f lo w ed f ro m th e d ecisio n w

h eth er o r n o t to p resen t an y def en se at th e g u ilt/sp ecial circu m stan ce ph ase,

. . . co u n sel co u ld [n o t] p ro p erly ref u s e to h o n o r d ef

en d an t’ s clearly ex p ressed d esire to p resen t a d ef en s e at th at stag e.” Frierso n , 7 0 5 P .2 d at 4 03 & n .4 (rely in g in p art o n Fa retta ).B U R T O N V

. D A V I S 66

d i ssatisfaction with Slick’s failure to delay the trial,” a n d denied habeas relief. Id. at 1026, 1030.

I n f ederal habeas p roceeding s, the district court reviewed the state court record de novo and g ranted the writ, holding

, contrary to the California Supre m e Court, that B urton’s request to represent himself was not made for the purpose o f delay

.

B

W h ether a petitioner’s request to ex ercise his rig ht under Faretta to represent h imself at trial is timely is controlled b y Fritz v. Spalding

, 682 F .2d 782 (9th Cir. 1982). I n F ritz
, we held that “a motion to p roceed pro se is timely if made before the jury is empaneled, u nless it is shown to be a t a c t i c t o secure delay .” Id. at 784. 3

As the majority o b served, the district court erred when it treated the determination of B urton’s p u r p ose in seeking to represent himself as a mix e d question of law and fact. Maj. Op. at 33–34. B urton’s purpose is simply a q uestion of fact, and the district court owed deference to the state c ourt

3 T h e m aj o rity co n clu d es th at an y p ro se rep resen tatio n req u est is tim ely

, reg ard less o f w

h eth er t h e def

en d an t h ad a p u

rp o se o f d elay

, as lo n g as

so m e o th er p erm i ssib le p u rp o s e f or th e d ef en dan t’ s m o tio n can b e f

o u n d

. It claim s t h at Fritz “ ask s w

h eth er th e d ef

en dan t’ s actu al an d so le p u rp ose

w as to d elay .” Maj

. Op

. a t 4 1

. Bu t Fritz say s n o th in g ab ou t th e d ef en d an t ’ s “ so l e” p u rp o se. In stead

, Fritz em p lo y s sev eral f

o rm u latio n s to d escrib e t

h e relev an t in q u iry : a m otio n is tim ely u n less it is “ a tactic to

secu re d elay ,” “ u

n less it w as m ad e f

o r th e p u r p o s e o f d elay ,” o r “ ab sen t

a n a f f irm ativ e sh o w in g o f p u rp o s e to secu re d elay .” 6 8 2 F .2 d a t 7 8 4

. Clearly

, d elay m

u st b e a pu rp o se o f a Fa retta m o tio n to m ak e it u n tim ely

, b u t Fritz d o es n o t req u i re d elay

to b e th e “ so le” p u rp ose.B U R T O N V

. D A V I S 67

determi nation of fact unless an ex ception enumerated in § 2254 applies. B ut then the majority e rrs when it upholds de

novo review based o n its conclusion that the California Supreme Court did not r esolve the merits of the f actual question, see § 2254(d)( 1 )

, and that B urton was therefore denied a full, fair, and adequate state court hearin g, see § 2254(d)(2), (6). 4 Maj. Op. at 33.

Apply ing § 2254(d)(1), the majority essentially concludes that the state courts did not make finding s o f fact reg arding B urton’s purpose because the Califo rn i a Supreme Court

4 P re- A EDP A 2 8 U

. S.C. § 2 2 5 4 (d ) (1 9 9 4) pro v id ed th at, in f ed eral h ab eas p ro ceed in g s in i tiated b y a state p riso n er,

[A ] determ in atio n a ft er a h earin g o n th e m erits o f a f actu al issu e, m ad e b y a State co u rt o f co m p e t e n t j u risd ic t i o n in a p ro ceed in g to w h ich th e ap p lican t f

or th e w rit an d th e State o r an o f

f i cer o r ag en t th ereo f w ere p arties, ev id en ced b y a w

ritten f in d in g , w ritten o p in io n , o r o th e r reliab le an d ad eq u ate w ritten in d icia, s h all b e p resu m e d to b e co rrect, u n less th e ap p lican t sh all estab lish o r it sh all o th erw ise ap p ear, o r th e resp o n d en t sh all ad m it—

(1 ) th at t h e m erits o f th e f actu al d isp u te w ere n o t

reso lv ed in th e State co u rt h earin g ;

(2 ) th at th e f

actf in din g p ro ced u re em

p lo y ed b y th e State

co u rt w as n o t ad eq u ate to af

f o rd a f u l l an d f air h earin g ;

. . . (6 ) th at th e ap plican t d id n o t receiv e a f u ll, f air, an d ad eq u ate h earin g in

th e State co u rt p ro ceed in g ; . . . .

[ T ]h e b u rd en sh all rest u

p on th e ap p lican t to estab l i s h b y co n v in cin g ev id en ce th at t h e f actu al d eterm in atio n b y th e State co u rt w as erro n eo u s.B U R T O N V

. D A V I S 68

asked the referee t o d e termine Slick’s belief about B urton’s
purpose r ather than a sking about Bu rton’s purpose directly

. Recog niz ing that the California Supreme Cou r t d id make

some potentially releva n t finding s, the majority seeks to

ex p lain away those finding s b y a rg uing that they must be considered “in contex t.” The majority thus concludes that the state supreme court did not g ive a Faretta answer because it asked a Frierson question.

A p ply ing § 2254(d)(2), (6), the majority c oncludes t h at the Frierson proceeding s were inadequate to resolve B urton’s Faretta c l a i m fully a

nd fairly because the state courts

m i s allocated the burden of proof a nd because they failed to consider k ey aspects of the record and to ap ply the proper leg al inquiry

.

I respectfully disag ree w ith the majority ’ s application o f these three provisions.

I I

A

Contrary to the majority ’s opinion, the Cal i f o r n ia courts did indeed determine the merits of B urton’s p urpose in seeking to represent himself; therefore, § 2254(d)(1) provides

no basis for withholding deference. Rather than focus on the facts determined by the referee and accepted b y the California Supreme Court, the majority mistakenly f o c u ses on the
contex t in which those facts were found.

The majority ’s analy sis misses the trees for the forest.B U R T O N V

. D A V I S 69

1

W h at did the California Supreme Court actually hold with respect to the factual finding s made in B urton’s state habeas proceeding s? There, B urton invoked “ statements he made at trial in the course of his four motions for self-representation.” In re Burton
, 147 P

. 3 d 1014, 1024 (Cal. 2006). I n response to B urton’s arg uments, the c o urt did n ot solely determine counsel Slick’s impression of B u rton’s purpose in invoking Faretta ; it also directly

determined B urton’s actual purpose.

The California Supreme Court a ddressed both Slick’s i m pression and B urton’s actual purpose in three k e y parag raphs. The court first recog niz ed that “the referee f ound [ that] B u rton invoked and continued to invoke Faretta solely in order to delay the trial. ” I d

. at 1026. I t then d iscussed Slick’s testimony reg arding his belief that B urton’s purp o se was delay :

According to S l i ck, B urton c o nsistently said

on multiple occasions that he was not ready to g o to trial, but never o ffered Slick a reason for

a delay

. I n Sl i c k ’s ex perience, it is not unusual for defendants to prefer to delay trial and to g ive the a

ppe a rance of being able to “wait i t out,” and he believed that B urton, who was facin g a capital trial, was such a defendant. B urton thus errs in contending that “the only reasonable inference to be drawn” from his Faretta motions is that he “wanted to defend ag ainst the state’s case.”

Id. T hus, the first sentence of this parag raph indicates tha t t h e r e feree found B urton invoked Faretta solely in order t oB U R T O N V

. D A V I S 70

delay trial, while the remaining sentences address Slick’s impression.

I n the second parag r aph, the California Supreme Court discusses other evidence that “corroborates” Slick’s assessment that B urton’s purpose was delay :

Slick’s assessment o f B urton’s motivation

was corroborated b y o ther evidence at the hearing

. Kleinbauer testified that B urton h ad told her he was n ot r eady t o g o to trial a nd that he was dissatisfied with Slick because “the trial seemed to be

. . . r ushing forward.” As a result, Kleinbauer had c o n s u lted with another l awy er, J effrey B rodey

, who h ad recommended that B urton invoke his rig ht to self-representation if he was not r eady f or trial and that he not settle for cocounsel sta t u s

. T e l l i n g l y , K l e i n b a u e r ’ s n o t es o f t h i s conversation nowhere mention B u rton’s alleg ed desire to p resent a defen s e but say instead “tell Ron he’s not ready for trial. J uly 25 too soon—nex t y ear s o me time.” Kleinbauer f

urther stated i n a 1993 declaration that she h a d instructed B urton to tell Slick “that he w as not ready f

o r trial, and that the trial should take p l a c e nex t y ear some time, after all the investig at i on w as done.” Kleinbauer herself also felt the case “went t o trial may be sooner than it should have.”

Id. Of particular note, I can think of no better ex ample o f “a tactic to secure d e lay ” than an attorney ’s recommend a t ion that a criminal defendant in a capital murder c ase “invoke hisB U R T O N V

. D A V I S 71

rig ht to self-representation if he was n o t ready for trial a nd that he not settle for c ocounsel status.” While this p arag raph
may g o n o further than determining that Slick’s assessm e n t of B urton’s purpose was corroborated, it does so by pointing
to evidence sug g esting th a t S lick’s a ssessment was correct, i.e. , that B u rton’s actual purpose was delay

.

Even if these first two p arag r aphs address Slick’s impressio n o f B urton’s purpose, the third parag raph very clearly adopts f

actual finding s a

b o ut B u rton’s actual purpose:

B u rton’s conduct and stat e ments f urther confirmed h is interest in d elay

. B urton eng ag ed in “g ame play ing ” with Dr. Michael Maloney

, who had been retained by Slick to conduct a psy cholog ical evaluation of B urton. This lack of c o operation is fully consistent with a defendant who was interested in delay for delay ’s sake— a conclusion additionally supported b y B urton’s o b s ervation in his declaration in support of his mot i o n for new trial that “[ i] n my ex perience in the L os Ang eles County J ail, persons w i t h death penalty cases all tended t o have their cases continued for long er periods of time.” F inally

, we note that even the trial court seemed aware of B urton’s motivation, advising him during the second F

a retta mo t i o n hearing “that the trial is g oing to g o ahead. [ ¶] I k now y ou don’t like the idea, b ut that’s the idea.” W e therefore a ccept the r eferee’s finding that Bu r t o n ’ s F

a r e t t a m o t i o n s r e f

l e c t e d a dissatisfaction with Slick’s failure to delay theB U R T O N V

. D A V I S 72

trial, not a dissatisfaction with Slick’s trial strateg y

.

Id. (alteration in orig inal).

I n sum, the California Supreme Court first recog niz e d that “the referee found [ that] Bu r t on invoked and c ontinued to invoke F a r e t ta solely in order to delay the trial.” Id. After discussing Slick’s impression of B u r ton’s purpose, the state supreme court moved bey ond Slick’s impression to the actual
purpose, and it d e termined that “B u rton’s conduct a nd
statements further c onfirmed his interest i n d e l ay .” Id. A s

s u pport for that determination, it reasoned that t h e “conclusion” that Bu r t on was “a defendant who was interested in delay fo r delay ’s sake” was “supported b y B urton’s o bservation in his d eclara tion in support of his motion for new trial” and was “fully c o n s istent with” B urton’s eng ag ing in “g ame play ing ” w i t h a psy cholog ist hired by Slick to evaluate B urton. Id. Ultimately

, the California Supreme Court “accept[ ed] t h e referee’s finding that B urton’s Faretta motions reflected a dissatisfaction with Slick’s failure to d elay the trial, n o t a d issatisfaction with Slick’s trial strateg y .” Id.

T h e r eferee’s f

actual finding s, as accepted by the state supreme court, squarely address the merits of B urton’s
purpose in invoking Faretta
, and they deserve deference. I f

we take the California Supreme C ourt a t face value, we a re left with the clear determina t i o n that B urton’s p urpose in making his motion was to delay trial.B U R T O N V

. D A V I S 73

2

The majority simply ig nores the California Supr e me Court’s accepted factual finding s. Nowhere does it acknowledg e the Californi a Supreme Court’s recog nition that “the referee found [ that] Bu r ton invoked and c ontinued to invoke Faretta s o lely in order to delay the trial.” Id. Nor does it ever g rapple with the finding that “B urton’s conduct and statements further confirmed his interest in delay .” Id.

To the ex tent that it does eng ag e with the actual lang uag e of the California Supreme Court opinion, the m a j o rity
reg rettably misconstrues it. F or ex a mple, the majority arg ues that the sta t e court’s statements about B urton’s “g ame play ing ” and his observatio n a bout the ty pical leng th o f continuances for d eath p enalty cases “must be read in
contex t.” Maj. Op. at 37. Those statements were made in a parag raph that beg ins with “ B urton’s conduct and statements further confirmed his interest in delay ” a n d concludes with “W e therefore a ccept the r eferee’s finding t h a t B urton’s F a r e t ta motions reflected a dissatisfaction with Slick’s f ail u r e to delay the trial, not a dissat i s f a c t i on with Slick’s trial strateg y .” Burton
, 147 P.3 d a t 1 0 26. I n contex t, the state supreme court was c l e a

rly identify ing evidence that supported these two propositions, which a r e directly c o n c e rned with B urton’s actual purpose.

Despite its ex hortation, the majority prefers to read the
statements completely out of c o n t e x t. The majority c laims that the state court “was identify ing evidence that ‘corro borated’ ‘Slick’s assessment of B urton’s motivation,’ which arg uably refuted B urton’s arg ument that ‘the o n ly reasonable inference to be drawn from his Faretta mo tions [ wa] s that he wanted to d e f end ag ainst the state’s case.’”B U R T O N V

. D A V I S 74

Maj. Op. at 37–38. Yet these propositions—that “ Slick’s
assessment o f Burton’s motivation was corroborated” a nd that B urton erred “in c ontending that ‘the only reasona b le inference to be drawn’ from his Faretta motions [ was] that he ‘wanted to defend ag ainst the state’s case’”—were contained in completely separate parag r aphs from the statements about Bu rton’s “g ame play ing ” and his observation about th e ty pical leng th of continuances. See Burton
, 147 P.3d at 1026. W h en making the statements about “g ame play ing” a nd B urton’s observation, the California Supreme Court h ad clearly moved from d i s c u s sing Slick’s impression to discussing B urton’s actual purpose.

The majority a lso ig nores another important contex tual clue that the California Supreme Court did directly ad d re s s B urton’s purpose: the issue of his a ctual purpose w as a disputed factual q

uestion raised b y the Frierson claim before the California Supreme Court a ppointed the referee. Specifically

, B urton f

irst placed his actual purpose at i ssue when he claimed in his state habeas pet i t i o n that he “had
soug h t on four o ccasions during the t r ial to discharg e his attorney and represent himself b ecau se of Attorney Slick’s deficiencies.” Id. at 1017. The State responded that “the true

r e a s o n B urton had asked the trial court four times to b e allowed to r epresent himself ‘was to obtain a continuance to avoid g o ing to trial, not because he wanted f urther investig ation conducted,’” id. at 1017–18, w hich B urton denied in reply

, i d

. at 1018. This factual dispute e x isted before the reference hearing

, so it is not surprising that the referee and the California Supreme Court w o u n d up addressing B urton’s true purpose in seeking to represent himself.B U R T O N V

. D A V I S 75

Thus, the majorit y ’ s attempt to ex plain away the California S u p reme Court’s f inding s concerning B urton’s purpose—not merely Slick’s impression of such p u r p ose—by
arg uing they must be read “ i n c o n t ex t,” falls flat. I t is clear that the California Supreme Court determined B urton’s
purpose in invoking Faretta
, and that purpose was delay for delay ’s sake.

B

And the Califor n i a courts indeed afforded B urton a full, fair, and adequate hearing in d etermining his purpose in seeking self-representation.

1

Recall that B urton’s motivation for invoking Faretta was

a contested f

actual issue before the reference hearing

, a nd B urton submitted evidence reg arding that issue. I n addition, B urton was aware that the California Supre m e Court asked the referee to determine a closely re l a ted question: whether Slick had reason to believe that B u r ton invoked F

aretta in order to d elay trial. Of course, if B urton’s actual purpose was delay , then that fact makes it much more probable that Slick had reason to believe that B urton’s purpose was delay

. Thus, it should have been no surprise when the California courts found a s u b s idiary fact—that B urton’s actual purpose was delay —as support for another f inding of fact—that Slick h ad

reason to believe B u rton’s actual purpose was delay

. B urton was not d eprived of a full, fair, and adequate hearing merely because the Califor nia Supreme Court declined to specify
every questi o n that mig ht possibly b e answered in the reference hearing

.B U R T O N V

. D A V I S 76

2

None of the majority ’s reasons are persuasive.

F irst, the state courts d id not deprive B urton of a f ull, fair, and adequate hearing by misallocating the burden of p ro o f. W e have never held that the burden o f proof in a Fritz inquiry is on the state o r that the state must show that the evidence is
not “consistent” with any other purpose than delay

. Nor have

we held that a misplaced burden “is r eason alone not to a pply the presumption of c orrectn e s s ” and that it w ould be “manifestly unfair ” t o b ind B urton to an adverse f actual deter m i nation made in proceeding s in which he bore the burden of proof. Maj. Op. at 44–45.

Moreover, with respect to B urton’s purpose in seeking to

r e p resent himself, there is no indication that the b urden o f proof play ed any role in the state h abeas proceeding s or that the State received the benefit o f the doubt. I n those
p r oceeding s, nowhere d id the referee or the California Supreme Court say that B urton failed to carry his burden with respect to his Faretta motions. The stat e c o u r ts did not deprive B urton o f a full, fair

, a n d a dequate hearing on his motivation f

or invoking Faretta by w eig hing the evidence and deciding ag ainst him.

3

Nor did the state c ourts deprive B urton of a full, fair, a nd adequate hearing by f

ailing to apply the proper leg al test or to consider k ey parts of the recor d

. Ultimately

, these asserted

errors are not errors at al l. I n E arly v. Packer

, 5 37 U .S. 3 (2002) (per c uriam), a California app e l l a t e court upheld the trial court’s g iving a c h a r ge to a deadlocked jury under aB U R T O N V

. D A V I S 77

s t a t e -l a w rule that differed from the federal rule. I d. at 6–7. W e had concluded that the California appellate court erred in failing t o a p ply a totality of the circumstances test and to consider key

pieces of evidence:

[ T] he Ninth Circuit charg ed that the Court o f Appeal “failed to apply the totality of the circumstances test a s r e q

u i r e d by Lowenfield

. ” That was so, the N i n th Circuit concluded, because it “simply mentioned three p a rticular incidents in its a

n aly sis,” “failed to consider” other “critical facts,” and “ failed to consider the c umulative impact” o f all the sig nificant facts, one of which it “[ did] not even mention in its analy sis.”

Id. at 8–9 ( internal alterations and citation omitted). T he Supreme Court noted that the state court had f ocused on three particular incidents, b ut set forth m a n y facts a nd circumstances bey ond those three incide n t s

. I d. at 9. The Court r e jected our conclusion that th e state court failed to apply the totality of the circumstances test by not considering certain facts:

The c ontention th at the California court “failed to consider” f

acts and circu m stances that it had taken the trouble to recite st r a i n s credulity

. The N inth C i r c uit may be of the view that the Court of Appeal did n o t g ive certain f act s and circumstances adequate weig ht (and hence adequate discussion); but
t o say that it d id not consider them is an

ex a g g e ration. There is, moreover, nothing to support the Ninth Circuit’s claim that theB U R T O N V

. D A V I S 78

Court o f Appeal did not consider the “cumulative impact” o f all the re c o rded
events. Compliance with Lowenfield

. . . does
not demand a form u l ary statement that the trial court’s act ions and inactions were noncoercive “individually and cumulatively

. ” I t suffices that that was the fair import of th e Court of Appeal' s opinion.

Id. 5

H e re, the majority asserts that the California Supre m e Court failed to apply a “totality o f t he circumstances” test. M a j

. O p. a t 4 5. L ike in Early

, the state court’s lack of a formulary statement that it was apply ing th e F r i tz f actors does not render the determination of facts improper if the fair import of the state court’s decision is that it did consider the relevant f

actors. Moreover, the majorit y asserts that the California Supreme Court failed to consider various pieces o f evidence that it ex pressly recited. Maj. Op. at 51–52. Similar
to Early

, the state court’s recitation of the facts shows that it did consider them.

Therefore, the state-court h e aring was full, f air, a nd adequate, an d the presumption of correctness should apply

. 6

5 A lth o u g h Ea rly i s ad m itted ly a case g o v ern ed b y A EDP A
, th e C o u rt

m ad e n o in d icatio n

th at th is p art o f

its an aly sis w as im

p acted in an y

w ay b y A EDP A ’ s am en d m en ts. Co n seq u en tly

, th e p ri n c i p les can b e ap p lied
to th is p re- A EDP A

case.

6 Giv en th e m aj o rity ’ s co n clu sio n th at th e state co u rts d id n o t reso lv e th e f actu al d isp u te o n th e m erits a n d t h at B u rto n w as d en ied a f u ll, f air, an d ad eq u ate s tate co u rt h earin g , th e m aj o rity s h o u l d n o t b e af f irm in g b u tB U R T O N V

. D A V I S 79

rath er v acatin g an d rem an d in g f o r an ev i d en t iary h earin g i n th e d istrict

co u rt. Un d er p re- A EDP A h ab eas law :

A n ev id en tiary h earin g i n f ed eral h ab eas p ro ceed in g s is
req u i red (1 ) w

h ere th e m erits o f a f

actu al d isp u te w ere

n o t reso lv ed in state h eari n g s

. . . (3 ) th e state’ s factf in d in g p ro ced u re w as n o t ad eq u ate to af f o rd a f u ll an d f air h earin g ;

. . . (5 ) m aterial f acts w ere n o t ad eq u ately d ev elo ped at th e state co u rt h earin g , f

o r w h ich th ere is

n o cau se o r p rej u d ice; o r (6 ) fo r a n y reaso n it ap p ears th at th e state trier o f

f act d id n o t af

f ord th e ap p lican t a f u ll an d f air h earin g o n

th e f acts.

Rh o a d es v. Hen r

y , 6 3 8 F .3 d 1 0 2 7
, 1 0 4 1 n .1 3 (9 th Cir. 2 0 1 1 ) ( c i t in g To wn sen d v. S

a in
, 37 2 U.S. 2 9 3
, 3 12

– 1 3 ( 1 9 6 3 ); Keen ey v. Ta m a yo

Reyes
, 5 0 4 U.S. 1
, 8

– 1 1
, (1 9 9 2 ) (m o d if y in g To wn sen d ’ s f

if th f acto r)); see

a lso Fo rd v. W

a in wrig h t , 47 7 U.S. 3 9 9 , 4 1 0 –1 1 (1 9 8 6 ). T h e To wn sen d criteria are th e sam e as th e ex cep tio n s in § § 2 2 5 4 (d ) ( 1 )

, (2 ), (3 ), (6 ). Brewer v. W

i llia ms , 4 30 U.S. 3 8 7
, 3 9 5 (1 9 7 7 ). T h eref o re, th e m aj o rity ’ s

co n clu sio n th at th e p resu m p tio n o f co rrectn ess do es n o t ap p ly b ecau se of th e ex cep tio n s in su

bsectio n s (1 ), (2 ), an d (6 ) also co m p els th e co n clu sio n th at an ev id en tiary

h earin g is req u ired

.

A n ev id en t i a r y h earin g i s esp ecially ap pro p riate w h en th e f ed eral d i s t r i ct co u rt rej ects th e state co u rt’ s k ey cred ib ility d eterm in atio n s.

“ [Sectio n ] 2 2 5 4 (d ) g iv es f ed eral h ab eas co u

rts n o licen se to red eterm in e cred ib ility o f w i t n e s ses w h o s e dem ean o r h as been o b serv ed b y th e state trial co u rt, b u t n o t b y

th em .” Ma r

sh all v. Lo nb erg er , 4 5 9 U.S. 4 2 2 , 4 3 4 (1 9 8 3). Here, t

h e d istrict co u rt, o n t

h e b asis of a co ld d o cu m en tary reco rd

, re j e cted th e Calif

o rn i a S u prem e Co u rt’ s accep tan ce o f th e ref eree’ s cred ib ility determ in atio n s , w h ich w ere b ased o n liv e o b serv a t i o n of th e

w itn esses’ d em ean o rs.

T h e “ reex am in atio n o f state co n v i ctio n s th at th e m o d ern w rit en tails im p licates v alu es o f f

in ality a n d co m ity t

h at are im

p o rtan t to f

ed eralism

an d o u r sy stem o f crim in al j u stice.” Ga g e v. Ch a p p ell

, 7 9 3 F.3 d 1 1 5 9
, 1 1 6 7 ( 9 t h Cir. 2 0 1 5 ) (citin g Co lema n v. Th o mp so n , 5 0 1 U.S. 72 2
, 7 3 1 ( 1 9 9 1 ); McCleskey v. Za n t , 4 99 U.S. 4 6 7
, 4 9 1 (1 99 1 ); Ku h lma n n v

. W ilso n , 4 7 7 U.S. 4 3 6
, 4 5 3 n

. 1 6 (1 98 6 )). Giv en th ese im p o rtan t co n cern sB U R T O N V

. D A V I S 80

I I I

F or the foreg oing reasons, I respectfully

dissent.

a n d th e rej ectio n o f sev eral k ey s tate- co u rt cred ib ility d eterm in ati o n s , sh o u ld n ’ t th e d istrict co u rt a t l e a st ob serv e l iv e w itn esses i tself b ef ore f o rcin g th e state to retry a 3 2

- y ear- o ld cap ital m u rd er case?