FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDRE BURTON,

Petitioner-Appellee,

v.

RON DAVIS,

*

 Warden, California

State Prison at San Quentin,

Respondent-Appellant.

No. 13-55328

D.C. No.

2:91-cv-01652-

AHM

OPINION

Appeal from the United States District Court

for the Central District of California

A. Howard Matz, District Judge, Presiding

Argued and Submitted

August 28, 2014—Pasadena, California

Filed March 10, 2016

Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee;

Dissent by Judge O’Scannlain

* Ron Davis is substituted for Kevin Chappell as Warden of the

California State Prison at San Quentin. Fed. R. App. P. 43(c)(2).
2 BURTON V. DAVIS

SUMMARY**

Habeas Corpus

The panel affirmed the district court’s grant of California

state prisoner Andre Burton’s pre-AEDPA habeas corpus

petition challenging his conviction and death sentence for

robbery and murder, in a case in which Burton invoked his

right to represent himself under Faretta v. California, 422

U.S. 806 (1975). 

The panel held that the California courts’ decision to deny

Burton his Faretta rights was not contrary to decisions of the

United States Supreme Court, but that the trial judge’s denial

of the requests on the sole ground that Burton was not ready

for trial and would need a continuance, and the California

Supreme Court’s affirmance of those denials, were contrary

to this court’s decision in Fritz v. Spalding, 682 F.2d 782 (9th

Cir. 1982). 

The panel held that because neither the trial court nor the

California Supreme Court made any finding that Burton’s

requests were a mere delay tactic, it was appropriate for the

district court to determine the timeliness of Burton’s Faretta

motions in the first instance. The panel held that the district

court was not required under former 28 U.S.C. § 2254(d) to

defer to the California Supreme Court’s finding, seventeen

years after its decision on Burton’s direct appeal, that

Burton’s lawyer, Ronald Slick, had reason to believe that

Burton asked to proceed pro se for the purpose of delaying

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
BURTON V. DAVIS 3

trial, where the postconviction proceedings did not ask

whether Burton intended to delay, onlywhether Slick thought

that was Burton’s intent. The panel held that the district court

erred when it treated the purpose-to-delay question as a

mixed question of law and fact. But the panel held that the

district court was not required to presume that Burton’s

requests were a mere delay tactic because, under

§ 2254(d)(1), the merits of that factual dispute were not

resolved in the state postconviction hearing and, under

§ 2254(d)(2) and (d)(6), Burton was denied a full, fair, and

adequate state court hearing on the issue. 

The panel held that the district court did not clearly err in

finding that Burton’s Faretta requests were made for

legitimate, not purely dilatory, reasons; and therefore

affirmed the district court’s conclusion that the requests were

timely as a matter of law.

Dissenting, Judge O’Scannlain wrote that the California

courts did determine the merits of Burton’s purpose in

seeking to represent himself, so § 2254(d)(1) provides no

basis for withholding deference; and that the California courts

did afford Burton a full, fair, and adequate hearing in

determining his purpose in seeking self-representation, so the

presumption of correctness should apply.
4 BURTON V. DAVIS

COUNSEL

Kamala D. Harris, Attorney General of California, Dane R.

Gillette, Chief Assistant Attorney General, Lance E. Winters,

Senior Assistant Attorney General, Keith H. Borjon,

Supervising Deputy Attorney General, Chung L. Mar

(argued), Deputy Attorney General, Los Angeles, California,

for Respondent-Appellant.

Marcia A. Morrissey(argued), Santa Monica, California; Lisa

M. Romo, Berkeley, California, for Petitioner-Appellee.

OPINION

BYBEE, Circuit Judge:

Andre Burton was tried and sentenced to death for

robbery and murder. Twice before trial and another two

times during trial, Burton invoked his constitutional right to

represent himself under Faretta v. California, 422 U.S. 806

(1975). Each time, the judge denied the request because

Burton needed time to prepare and asked that the trial be

continued. On direct appeal, the California Supreme Court

affirmed. Burton now seeks habeas corpus relief based on the

California Supreme Court’s rejection of his Faretta claim. 

We conclude, in this pre-AEDPA case, that the California

Supreme Court’s decision was contraryto federal law, and we

affirm the district court’s grant of the writ.

I

This case comes before us some thirty-two years after

Burton was tried. During those years, Burton filed a direct
BURTON V. DAVIS 5

appeal, was granted a state postconviction hearing, and filed

a petition for a federal writ of habeas corpus. His state and

federal proceedings are interwoven and complicated, so we

will work through the various proceedings in some detail.

A. Pretrial and Trial Proceedings

Burton was arrested in February 1983 for robbery and for

the murder of Gulshakar Khwaja. A month later, Ronald

Slick was appointed as his counsel, and Burton and his codefendant, Otis Clements, were arraigned in Los Angeles

Superior Court. Both men pleaded not guilty, and trial was

set for May 9.

In April, Slick hired Kristina Kleinbauer to investigate

Burton’s case. Slick gave Kleinbauer a memo with a list of

investigative tasks he wanted done. Slick instructed

Kleinbauer to conduct a background investigation of Burton

and Clements, to determine Burton’s participation in the

robbery and murder, and to interview other potential

witnesses.

On May 9, Slick declared that he was not ready for trial

and requested a continuance. The court severed Burton’s

case from Clements’s and continued Burton’s trial to July 25. 

About a month later, in mid-June, Kleinbauer began

interviewing witnesses.

When Kleinbauer interviewed Burton, Burton told her

that Slick had not visited him at the county jail and that he

was not satisfied with Slick’s representation in his case. 

Burton asked Kleinbauer if she could give him advice about

what to do. Kleinbauer contacted a local attorney, Jeff

Brodey, and Brodey told her that Burton could ask to dismiss
6 BURTON V. DAVIS

his counsel and make a Faretta motion. Kleinbauer took

notes, and gave Brodey’s advice to Burton in late July.

1

On July 26 and again on August 2, Slick announced he

was ready for trial, but both times the court trailed the case on

its own motion. In the meantime, however, Kleinbauer was

still interviewing witnesses. On July 25, she interviewed

Susana Camacho, an eyewitness, who had told the police she

thought the shooter was a white man. On August 8, she

interviewed Michael Stewart, a former police officer who told

her that the shooter ran right past him carrying a money bag. 

Stewart told her he was “definite about the fact that the man

must have been older because of the gray in his beard.” The

shooter “looked older than the driver, in his late thirties,” was

at least six feet tall, and was approximately 180 to 190

pounds. (According to the arrest report, Burton was 19 years

old, was just under six feet tall, and weighed 160 pounds.)

On August 10, the case was assigned for trial to Judge D.

Sterry Fagan. That same day, Kleinbauer gave a written

report of the Camacho and Stewart interviews to Slick. When

she gave him the reports, Slick did not tell her that Burton’s

trial was already underway. She expected Slick to have her

follow up on both witnesses and to contact other individuals

who might have corroborated their accounts, but he never did

so.

1 Kleinbauer testified that, to the best of her knowledge, she passed

along Brodey’s advice to Burton on July 29, and the State has not disputed

that testimony. The next time Burton appeared in court after July 29 was

August 10—the day Burton first asked to represent himself.
BURTON V. DAVIS 7

When Judge Fagan called Burton’s case on August 10,

Slick informed the judge that Burton wanted to address the

court. Burton then told the court:

Your Honor, I would like to represent

myself due to the circumstances of lack of

interest as far as the investigation is concerned

with my case. There isn’t any that should

have been taken care of. I haven’t spent or

had enough time to communicate with my

lawyer because he haven’t given me the time,

because he feel that to me it is not worth it to

him, but to me it is worth it, because it is my

life that is involved and I don’t want to take

the fall for the real person in this crime.

The judge told Burton that Slick was an experienced,

effective lawyer and then asked, “More importantly, you are

not ready for trial today, are you?” Burton replied, “No, sir. 

Istill rather take time to represent myself. I want to represent

myself.” The judge then responded, “Well, in light of the fact

that this matter is here for trial and the 60-day time limit runs

Friday and you are not ready for trial, I am going to have to

deny your request, Mr. Burton.” He added, “And, believe

me, I am doing you a favor in doing that.”

The next day, Burton asked a second time to represent

himself. He told the judge that he had just received the whole

file of his case, that this was his first time ever getting any

papers, and that he knew “for sure that we have a lack of

interest [that] is really out of hand and the court is not paying

attention to this.” He also told the judge that he suspected he

was being framed byClements, his alleged coconspirator, and

that he wanted to investigate his case because “Ron [Slick] is
8 BURTON V. DAVIS

not really on my side for this case.” After Slick represented

to the court that he had investigated Burton’s allegation that

he was being framed by Clements, and told the court he was

“as prepared as I know how to be,” the judge noted that

Burton’s case had been pending for “almost the maximum

period of time allowed to try these cases.” The judge

repeated to Burton that “you do have a constitutional right to

represent yourself, but that is not an unlimited right. You

have that right only if you are ready for trial today.” Because

Burton was “not ready today,” the judge denied his motion.

A jury was sworn in on August 15, and trial began on

August 16. The guilt phase trial took little more than a day. 

On the first day, after the court ruled on a motion to suppress

Burton’s statement to the police, Slick reserved opening

argument and the prosecution called five witnesses and put on

its entire case-in-chief. Slick conducted very little cross

examination of the prosecution’s witnesses. At the close of

the prosecution’s case, Slick asked the judge for a recess so

he could interview two witnesses.

After the judge excused the jury, Burton renewed his

request to represent himself and “object[ed] . . . to being

represented by Mr. Ron Slick.” When Burton conceded that

he was still not ready to proceed with trial, the court again

denied his motion.

The next morning, Burton asked a fourth time to address

the court. Before Burton could say anything, the judge told

him:

Well, Mr. Burton, we have gone through

this twice and I have indicated to you that I

am not going to permit you to [proceed pro
BURTON V. DAVIS 9

se] because you have indicated to me that you

are not ready to proceed with the trial. If I am

in error and if there is a conviction in this

case, the Appellate Court will certainly

straighten it out, but I don’t see that any

useful purpose would be served by going

through the same conversation again.

Do you have anything new you want to

add?

Burton responded that he did not, and the judge denied the

motion for the last time.

The jury was then recalled and Slick rested without

calling any witnesses. Closing arguments and jury

instructions followed. Later the same day, the jury returned

a guilty verdict.

Two days later, the entire penalty phase of the trial was

conducted. Slick called just two character witnesses:

Burton’s mother and a Los Angeles County deputy sheriff

assigned to Burton’s area of the county jail. After a day and

a half of deliberating, on August 23, 1983, the jury imposed

the death penalty.

Some time later, Kleinbauer was surprised to learn that

Burton had been sentenced to death. She was unaware that

Burton’s trial had even started, and she was still actively

investigating his case.
10 BURTON V. DAVIS

B. Direct Appeal to the California Supreme Court

Burton pursued an appeal to the California Supreme

Court, and the California Supreme Court affirmed the

judgment in its entirety. See People v. Burton, 771 P.2d 1270

(Cal. 1989). In considering Burton’s Faretta claim, the court

rejected Burton’s argument that the court was bound by our

decisions holding that a Faretta motion made before the jury

is empaneled must be granted unless it is shown that the

motion was made for the purpose of securing delay. Id. at

1276 (citing Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.

1985); Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982);

and Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.

1982)). The court considered the rule in these cases “too

rigid in circumscribing the discretion of the trial court.” Id.

at 1277.

Instead of applying the federal rule, the court applied its

own precedents holding that a request is timely if made a

“reasonable time” before trial but is “addressed to the sound

discretion of the trial court” if made at a later time. Id. at

1275 (citing People v. Windham, 560 P.2d 1187 (Cal. 1977)). 

Applying that standard, the court found that Burton did not

ask to represent 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

Burton’s Faretta claim.

C. Initial Federal Habeas Petition

Burton filed his original petition for a writ of habeas

corpus in the district court in 1992. The district court stayed

the federal habeas proceedings, however, pending exhaustion

of available state remedies. As the district court put it, “this
BURTON V. DAVIS 11

case [then] lingered, largely because of proceedings in the

California State Court system.” The stay would not be lifted

until more than 16 years later, after Burton filed an amended

federal habeas petition in 2008.

D. State Postconviction Proceedings

After the federal habeas proceedings were stayed, Burton

filed a state habeas petition with the California Supreme

Court. Four years later, the California Supreme Court

ordered the State to show cause why Burton should not be

granted relief on his claim under People v. Frierson, 705 P.2d

396 (Cal. 1985), that he was denied his right to put on a

defense at the guilt phase of trial.

After both sides filed responses, the court appointed a

referee to conduct an evidentiary hearing. The court directed

the referee to make factual findings on 11 questions,

including a question involvingBurton’s purpose in seeking to

represent himself. The sixth reference question asked: “Did

Slick have reason to believe that Petitioner’s in court requests

to represent himself were made for the purpose of delaying

trial, rather than dissatisfaction with Slick’s trial strategy?”

2

The referee conducted a fourteen-day hearing and

submitted his report to the California Supreme Court in 2005. 

In response to the sixth reference question, the referee noted

2 This question was apparently intended to resolve whether Burton’s

Faretta requests constituted a clear, open, and unequivocal disagreement

with Slick’s trial strategy. See In re Burton, 147 P.3d 1014, 1028 (Cal.

2006) (explaining that, in order to prove a Frierson violation, “a defendant

must clearly and openly—and, thus, unequivocally—express a desire to

present a particular defense”).
12 BURTON V. DAVIS

Slick’s testimony that Burton was “not emotionally ready to

go to trial” and that Burton’s four requests to represent

himself did not indicate a dissatisfaction with Slick’s trial

strategy. After reviewing the evidence and testimony at the

reference hearing, the referee found that “Petitioner tried to

delay the matter by seeking to represent himself, but those

requests were denied.”

After receiving postreference briefs from the parties, the

California Supreme Court, in a published decision, rejected

Burton’s Frierson claim. In re Burton, 147 P.3d 1014. The

court agreed with the referee that Slick’s statements were

corroborated by evidence in the record, and accordingly

found that Burton’s “Faretta motions reflected a

dissatisfaction with Slick’s failure to delay the trial, not a

dissatisfaction with Slick’s trial strategy.” Id. at 1026. Two

justices disagreed with the majority’s findings and dissented. 

See id. at 1033 (Werdegar, J., dissenting) (“While petitioner

certainly indicated in connection with his four Faretta

motions on August 10 through 17 that he was not ready to go

to trial [pro se] and did not believe the defense case had yet

been fully investigated, to read his comments as reflecting

only a desire 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

In 2008, Burton filed an amended federal habeas petition. 

The district court lifted the stay and ordered the parties to

brief Burton’s first claim—his claim that he was denied his

Sixth Amendment right to self-representation under Faretta.
BURTON V. DAVIS 13

The State made no attempt to defend the California

Supreme Court’s 1989 decision applying California law to

reject Burton’s Faretta claim. The State recognized that

because Burton filed his original federal habeas petition

before the effective date of the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), Burton’s amended

petition was governed by the pre-AEDPA version of

28 U.S.C. § 2254. Accordingly, 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 State argued that the district court’s

ability to apply the federal timeliness rule was significantly

constrained by the California Supreme Court’s factual

findings in connection with its 2006 decision on Burton’s

Frierson claim—in particular, the court’s finding that

Burton’s Faretta motions reflected a dissatisfaction with

Slick’s failure to delay trial. Citing former § 2254(d), the

State argued to the district court that “[t]hese factual findings

regarding Petitioner’s purpose for making his Faretta

motions are presumed correct on federal habeas review.” In

light of these factual findings, the State contended, the district

court was required to conclude that the California courts’

denial of Burton’s Faretta motions was consistent with

federal law.

After considering the parties’ briefs, the district court

granted relief on Burton’s Faretta claim. The district court

agreed with the State that, under pre-AEDPA law, Burton’s

claim was governed by this Court’s decision in Fritz. 

Accordingly, because the California Supreme Court had

“applied its own less accommodating timeliness standard,”

rather than the federal standard, the district court determined
14 BURTON V. DAVIS

that the California Supreme Court’s rejection of Burton’s

Faretta claim was “clearlyerroneous.” The district court thus

undertook to determine the timeliness of Burton’s Faretta

requests in the first instance.

The district court determined that it was not required to

defer to any finding by the California Supreme Court that

Burton’s requests were motivated by delay. In the district

court’s view, the question of Burton’s purpose in seeking to

represent himself was a mixed question of fact and law

subject to de novo federal review. The district court also

rejected the referee’s crediting of Slick’s testimony and

discounting of Burton’s testimony (and the testimony of

Slick’s investigator, Kristina Kleinbauer) because those

credibility findings lacked a sufficient basis in the record.3

The district court reviewed the transcript of Burton’s four

Faretta hearings and found that Burton had complained that

“there was a lack of interest in conducting adequate pre-trial

investigation; there had been inadequate communication

between him and his lawyer; and Mr. Slick did not believe it

was worthwhile to meet with him.” The district court

determined that the reference hearing testimony corroborated

Burton’s stated reasons.

For example, the district court noted that although Slick

had told the trial judge that he had looked into Burton’s

statements about Otis Clements, Burton’s alleged

coconspirator, the testimony at the reference hearing,

3

In particular, the district court noted: “Ms. Kleinbauer and Petitioner

both had clear recollections of the conversations they had with each other

and with Mr. Slick. On the other hand, Mr. Slick remembered virtually

nothing about his representation in this case.”
BURTON V. DAVIS 15

including Slick’s own testimony, revealed that “[n]o

investigation, beyond reading the police reports, had been

done either into Clements’s statements or his background.” 

The district court also found that Burton “knew that his

lawyer was not pursuing a complete investigation prior to the

commencement of trial and that he was not even contacting

witnesses who might present evidence contrary to the

prosecutor’s narrative of events.” The district court found

that “Slick did not take even the most de minimis steps” in

challenging highly questionable witness identifications and

“effectively ignor[ed] the information provided to him by his

investigator.”

As for Burton’s statement in a declaration that he had

observed that other inmates’ death penalty cases were taking

longer, the district court concluded that “this statement is

actually consistent with Petitioner’s complaints that his

lawyer was not conducting adequate investigations and did

not care about his case. Even the investigator, Ms.

Kleinbauer, was surprised to find out Mr. Slick had

commenced the trial so quickly, given that he knew her

investigation was incomplete.”

In light of these findings, the district court found that

“Petitioner’s stated reasons for asserting his right to selfrepresentation were legitimate and not made solely for the

purpose of delay.” The district court concluded that Burton’s

Faretta request was timely and accordingly gave the State

120 days to either release Burton from custody or grant him

a new trial.

The State timely appealed, and the district court granted

the State’s request to stay its judgment pending resolution of

this appeal.
16 BURTON V. DAVIS

II

We review de novo a district court’s grant or denial of

habeas corpus relief. Sanders v. Ratelle, 21 F.3d 1446, 1451

(9th Cir. 1994). We review the district court’s resolution of

legal questions de novo, and we review the district court’s

findings of fact for clear error. Seidel v. Merkle, 146 F.3d

750, 753 (9th Cir. 1998); see also Sanders, 21 F.3d at

1451–52; Fed. R. Civ. P. 52(a).

Because Burton filed his federal habeas corpus petition

before AEDPA’s effective date, we apply the former version

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

Chappell, 678 F.3d 1086, 1100–01 (9th Cir. 2012). Under

pre-AEDPA law, a state court’s determinations of pure

questions of law and mixed questions of law and fact are

subject to de novo federal review. Sanders, 21 F.3d at 1451. 

The state court’s findings of fact are ordinarily subject to

deference, however, and are presumed to be correct unless

they fall within one of eight exceptions listed in former

§ 2254(d).4

4 The presumption of correctness applies “unless the applicant shall

establish or it shall otherwise appear, or the respondent shall admit”:

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the

State court was not adequate to afford a full and

fair hearing;

(3) that the material facts were not adequately

developed at the State court hearing;
BURTON V. DAVIS 17

III

We must determine whether the California courts’

rejection of Burton’s Faretta claim was contrary to “the

Constitution or laws . . . of the United States.” 28 U.S.C.

§ 2254(a) (1994). Under the nonretroactivity rule announced

in Teague v. Lane, we review state court decisions according

to federal law as it existed at the time the petitioner’s

conviction became final on direct review. 489 U.S. 288, 310

(1989) (holding that “new constitutional rules of criminal

procedure will not be applicable to [state criminal] cases

which have become final before the new rules are

announced”).

(4) that the State court lacked jurisdiction of the

subject matter or over the person of the applicant

in the State court proceeding;

(5) that the applicant was an indigent and the State

court, in deprivation of his constitutional right,

failed to appoint counsel to represent him in the

State court proceeding;

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; or

(7) that the applicant was otherwise denied due

process of law in the State court proceeding;

(8) or . . . the Federal court on a consideration of [the

state court] record as a whole concludes that such

factual determination is not fairly supported by the

record.

28 U.S.C. § 2254(d) (1994).
18 BURTON V. DAVIS

We proceed in two steps. First, we address whether the

California courts’ decision to deny Burton his Faretta rights

was contraryto decisions of the United States Supreme Court. 

Because we conclude that it was not, we then ask whether

that decision was contrary to our own contemporaneous

decisions. We conclude that the California courts’ decision

was contrary to the federal Constitution, as interpreted by our

cases.

A. Supreme Court Law

We first consider whether the decisions of the United

States Supreme Court dictate the result in this case. What we

said nearly two decades ago is still true today: “The only

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).

In Faretta, the Supreme Court noted that the defendant

had asked to proceed pro se “weeks before trial” and then

held that “[i]n forcing Faretta, under these circumstances, to

accept against his will a state-appointed public defender, the

California courts deprived him of his constitutional right to

conduct his own defense.” 422 U.S. at 835–36 (emphasis

added). Because we viewed the timing element as essential

to the Court’s holding in Faretta, we determined in Moore

that, after Faretta, the Supreme Court had clearly established

that a request to proceed pro se is timely if made “weeks

before trial.” Moore, 108 F.3d at 265.

Thus, had Burton asked to represent himself weeks before

trial and had the trial court denied his request as untimely, we

would conclude that the denial was contrary to Faretta and

would issue the writ on that basis. Burton did not make his
BURTON V. DAVIS 19

request weeks before trial, however; he made it days before

trial—three court days before the jury was empaneled, to be

exact. Thus, Faretta does not clearly entitle Burton to relief.5

B. Circuit Law

Although the Supreme Court’s decision in Faretta does

not entitle Burton to relief, this does not end our inquiry. 

Under the prior version of § 2254, a federal court could issue

a writ of habeas corpus “only on the ground that [the state

prisoner] is in custody in violation of the Constitution or laws

or treaties of the United States.” 28 U.S.C. § 2254(a) (1994). 

The current version of § 2254 restricts the “violation of the

Constitution” that federal courts can remedy to violations of

“clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)

(emphasis added). There was no such restriction in the prior

law. Accordingly, as we observed, “[u]nder the old version

of § 2254(d), we look to the decisions of the Supreme Court

and of this court in deciding whether a writ should issue.” 

Moore, 108 F.3d at 264 (emphasis added); see also Williams

v. Taylor, 529 U.S. 362, 412 (2000) (explaining that

“[AEDPA] restricts the source of clearly established law to

th[e Supreme]Court’s jurisprudence” whereas former § 2254,

as interpreted by Teague, did not). We turn now to the state

of our own circuit law in 1989, the year Burton’s conviction

became final on state direct review.

5 For this reason, were Burton’s petition governed by AEDPA, we would

have to reject his Faretta claim. See Marshall v. Taylor, 395 F.3d 1058,

1061 (9th Cir. 2005) (holding that the California rule for determining the

timeliness of Faretta motions was not contrary to the United States

Supreme Court’s holding in Faretta that a request made “weeks before

trial” is timely).
20 BURTON V. DAVIS

1. Fritz is controlling law

The law in this circuit was clear. Before Burton’s

conviction became final—indeed, before Burton was even

arrested—we held in Fritz v. Spalding that “a motion to

proceed pro se is timely if made before the jury is empaneled,

unless it is shown to be a tactic to secure delay.” 682 F.2d at

784 (citing Maxwell, 673 F.2d at 1036). We clarified that

“[d]elay per se is not a sufficient ground for denying a

defendant’s constitutional right of self-representation” and

that a defendant “may not be deprived of that right absent an

affirmative showing of purpose to secure delay.” Id.

In Fritz, the Washington Court of Appeals had found that

the petitioner’s Faretta motion “was a tactic ‘to delay his

scheduled trial and obstruct the orderly course of the

administration of justice.’” Id. at 784 (quoting State v. Fritz,

585 P.2d 173, 180 (Wash. Ct. App. 1978)). Nevertheless, we

concluded that the state court’s purpose-to-delay finding was

not entitled to deference because “material facts were not

adequately developed” and the state court hearing did not

afford him a full, fair, and adequate hearing on the issue. Id.

at 785 (citing former 28 U.S.C. § 2254(d)(3) and (d)(6)). We

noted that “much of the evidence adduced at the hearings

[wa]s pertinent to [the petitioner’s] motivation,” but “[t]he

evidence [wa]s incomplete” because “[n]either [the trial judge

nor the court of appeals] made an express inquiry into [the

petitioner’s] purpose.” Id. Because the district court had also

applied the wrong legal standard, we remanded to the district

court for a determination of the purpose to delay question

under the correct standard. Id.

Three years after our decision in Fritz, and still four years

before Burton’s conviction became final on direct review, we
BURTON V. DAVIS 21

concluded that the California Court of Appeal failed to follow

Fritz and, accordingly, we granted the writ. See Armant,

772 F.2d at 554. We noted in Armant that the situation there

“differ[ed] from Fritz in a most significant way.” Id. at 556. 

Whereas the state court in Fritz had found that the request

was a delay tactic, we observed in Armant that “the state

appellate court did not find that the motion was a tactic to

delay trial” and “nowhere in the record [wa]s there even a

suggestion that Armant made this request for the purpose of

delay.” Id. On these facts, we concluded, Armant’s request

was timely as a matter of law. Id.

We have subsequently held that Fritz constitutes

established federal law for purposes of former § 2254. See

Moore, 108 F.3d at 264 (noting that Fritz and Armant

“compel our decision” in pre-AEDPA cases); see also id.

(“Although our ‘jury empanelment’ rule for the timeliness of

Faretta motions might have been a ‘new rule’ when it was

announced in 1982, it was not a new rule for Moore because

it was announced before his conviction became final.”

(citations omitted)); id. (noting that “[i]n at least two cases,

. . . we have granted the writ when a California court failed to

follow the ‘jury empanelment’ rule” (citing Armant, 772 F.2d

at 558, and Maxwell, 673 F.2d at 1036)).

We thus proceed to consider whether the trial judge’s

denials of Burton’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

Burton’s trial judge did precisely what Fritz said not to

do: he denied Burton’s pre-empanelment request to proceed
22 BURTON V. DAVIS

pro se on the sole ground that Burton was not ready for trial

and would need a continuance. Burton asked to represent

himself four times, and on all four occasions the trial judge

denied his request on this ground.

Burton first asked to represent himself on August 10,

1983—three court days before the jury was empaneled. The

judge, after first telling Burton that it would be a big mistake

to proceed pro se, asked, “More importantly, you are not

ready for trial today, are you?” When Burton answered that

he was not, the judge responded, “Well, in light of the fact

that this matter is here for trial and the 60-day time limit runs

Friday and you are not ready for trial, I am going to have to

deny your request, Mr. Burton.”6

Burton then cited Faretta and told the judge, “It is my

absolute right to represent myself,” and the court again

responded, “I am aware of that fact, if you were ready for trial

today. You are not ready for trial today.” After conferring

with trial counsel, the court then spoke again with Burton:

6 The trial court’s concern was simply wrong. It is true that California’s

speedy trial statute required superior courts in felony cases to bring

defendants to trial within 60 days of the filing of charges. See 1982 Cal.

Stat. 1801 (amending Cal. Penal Code § 1382). But the 60-day

requirement was a limit on the government, not the defendant. Trial could

be set on a date beyond the 60-day period “at the request of the defendant

or with his consent, express or implied.” Id.

That Burton could consent to continuances beyond the statutory 60-

day period was not unknown to the trial judge. On May 9—day 42 of

Burton’s 60-day period—Slick requested a two-month continuance to July

25. The judge instructed the prosecutor to “[t]ake the waiver.” Burton

then assented to the waiver, and the judge granted the continuance, noting

that July 25 “will be the forty-second day.”
BURTON V. DAVIS 23

The Court: Mr. Burton—and I ask you

this reluctantly—are you ready to go to trial

and represent yourself right now, if I—

Defendant: No, Your Honor, I am

requesting more continuance. I am not ready,

Your Honor, at this time.

The Court: All right. Fine. You have

your record, Mr. Burton. If I am wrong and

you are right, the Appellate Court will take

care of it. I am going to deny your motion.

The next day, Burton asked to represent himself a second

time. The trial judge told him:

Well, Mr. Burton, first of all, you do have a

constitutional right to represent yourself, but

that is not an unlimited right. You have that

right only if you are ready for trial today. 

And you have told me again and again that

you are not ready for trial today. This matter

was scheduled for trial and has been pending

for almost the maximum period of time

allowed to try these cases.

After Burton persisted, the trial judge stated, “Okay, Mr.

Burton, I am going to deny your motion for a continuance—I

think that is part of your motion—and for self-representation

on the basis that you are not ready today.”

During the trial, Burton asked to proceed pro se two

additional times. The first time, the judge again inquired,

“Are you ready to proceed today?” When Burton once again
24 BURTON V. DAVIS

answered that he was not, the judge denied the motion. The

second and last time Burton asked, the judge responded,

“Well, Mr. Burton, we have gone through this twice and I

have indicated to you that I am not going to permit you to go

in pro per because you have indicated to me that you are not

ready to proceed with the trial.”

The trial court never found, or even suggested, that

Burton’s requests were insincere or were a mere delay tactic. 

Cf. Moore, 108 F.3d at 264 (“[T]he trial court made no

finding that Moore’s [pre-empanelment] request was a tactic

for delay, and the record does not suggest that it was such a

tactic. Thus, under our case law, Moore’s request was timely,

and he is entitled to the writ.”); Armant, 772 F.2d at 556

(“[N]owhere in the record is there even a suggestion that

Armant made this request for the purpose of delay; Armant

was in jail at the time the motion was made and would

apparently have remained there throughout the period of any

continuance.”). It is thus clear that the trial court’s rejection

of Burton’s requests was contrary to established Sixth

Amendment law in this circuit.

3. The California Supreme Court failed to apply Fritz

Although 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 Dyer 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]ecause the

California Supreme Court’s findings were grounded in the

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

more entitled to a presumption of correctness”). Burton

appealed the trial court’s denial of his Faretta requests to the
BURTON V. DAVIS 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 law

for determining the timeliness of Faretta requests. Under the

California standard, “[i]n order to invoke an unconditional

right of self-representation, the defendant must assert the

right ‘within a reasonable time prior to the commencement of

trial.’” Burton, 771 P.2d at 1275 (quoting People v.

Windham, 560 P.2d 1187, 1191 (Cal. 1977)). “A motion

made after this period is addressed to the sound discretion of

the trial court.” Id. In exercising that discretion, trial courts

are “to consider the ‘quality of counsel’s representation of the

defendant, the defendant’s prior proclivity to substitute

counsel, the reasons for the request, the length and stage of

the proceedings, and the disruption or delay which might

reasonably be expected to follow the granting of such a

motion.’” Id. at 1276 (quoting Windham, 560 P.2d at

1191–92).

Because Burton first asked to represent himself just three

court days before the jury was empaneled, which, in the

court’s view, was less than a “reasonable time prior to the

commencement of trial,” the court determined that Burton did

not have an unconditional right to self-representation. Id. at

1275. Addressing the factors a trial court is to consider, the

court noted that “[a]lthough [Burton] apparently had not

shown a previous proclivity for substituting counsel,” other

factors supported the trial court’s decision. Id. at 1277. For

example, the court found:

Defense counsel had represented defendant

for six months, since the preliminary hearing,

and defendant had had several court
26 BURTON V. DAVIS

appearances in which he could have invoked

his right to represent himself. Defendant

asserted he was not ready to go to trial and

needed an unspecified period for preparation.

Id. at 1276. The court concluded that “[u]nder the

circumstances, the motion was clearly directed to the sound

discretion of the trial court.” Id.

Burton argued that the court “should follow the federal

rule,” but the court declined to do so. Id. After correctly

reciting the federal rule, and citing Armant, Fritz, and

Maxwell, the court stated that “[t]he federal rule, though it

calls motions timely until the jury is impaneled, may in

practice differ little from our own rule.” Id. This was so, the

court explained, because “[t]he fact that the granting of the

motion will cause a continuance, and that this will prejudice

the People, may be evidence of the defendant’s dilatory

intent.” Id. Thus, the court reasoned, although “[i]n the

instant case[] . . . the motion would be termed timely under

the federal rule, the trial court would still have discretion to

deny the motion if it considered it entered for the purpose of

delay.” Id.

Practical similarities aside, the court acknowledged some

significant differences between the California rule and the

federal rule. First, the court recognized that the California

rule shifted the burden from the government to the defendant. 

Under the California rule the burden is on the defendant to

explain his delay, whereas under the federal rule a preempanelment request is timely unless the government shows

that the request was a delay tactic. Id. at 1276–77. Second,

when the defendant makes the request shortly before the jury

is to be empaneled, the California rule leaves the decision to
BURTON V. DAVIS 27

grant the request to the trial court’s sound discretion, whereas

the federal rule does not. Id. at 1277; 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 granted”).7

Given these differences, the California Supreme Court

rejected the federal rule: “To the extent that there is a

difference between the federal rule and the California rule,”

the court stated, “we find the federal rule too rigid in

circumscribing the discretion of the trial court and adhere to

the California rule.” Burton, 771 P.2d at 1277. The court

thus affirmed the trial court’s decision as an exercise of

discretion and made no finding as to whether Burton’s

request was a mere delay tactic. Id.

The California Supreme Court’s decision was contrary to

Sixth Amendment law established in Fritz and Armant. See

Moore, 108 F.3d at 264. Indeed, at the time of the California

Supreme Court’s decision, we had already held that

California state court decisions applying the California

Supreme Court’s Windham standard contravened the federal

law set forth in Fritz. See Armant, 772 F.2d at 555–56. The

7 There is another, more significant difference between the California

rule and the federal rule: the considerations under each rule are different. 

Compare Burton, 771 P.2d at 1276 (courts must consider the quality of

counsel’s representation of the defendant, the defendant’s prior proclivity

to substitute counsel, the reasons for the request, the length and stage of

the proceedings, and the disruption or delay that would result from

granting the request), with Fritz, 682 F.2d at 784–85 (courts must

determine whether a request is a “tactic to secure delay” by considering

whether a delay would prejudice the prosecution, whether the motion

could have been raised earlier, and whether the events preceding the

motion are consistent with a good faith assertion of the Faretta right).
28 BURTON V. DAVIS

California Supreme Court justified its disregard of the federal

rule on the ground that state courts “are of course not bound

to follow the authority of the federal courts of appeals.” 

Burton, at 1277 n.2. But while that may now be true under

AEDPA, it was not true before AEDPA. See Moore,

108 F.3d at 264 (holding that Fritz and its progeny

“establishing a ‘juryempanelment’ rule for timeliness compel

our decision” in pre-AEDPA cases and that, therefore,

“California’s argument that habeas relief is barred by Teague

v. Lane has no merit” (citation omitted)); see also Avila v.

Roe, 298 F.3d 750, 753 n.3 (9th Cir. 2002) (“Although both

the state superior court and the state appellate court applied

the California rule, we are obligated to follow the Ninth

Circuit rule.”).

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

first instance

In sum, the trial court’s repeated denials of Burton’s

Faretta requests and the California Supreme Court’s decision

affirming those denials were contrary to our decisions in Fritz

and Armant. Because neither court made any finding that

Burton’s requests were a mere delay tactic, it was appropriate

for the district court to determine the timeliness of Burton’s

Faretta motions in the first instance. See Fritz, 682 F.2d at

786 (holding that “facts material to Fritz’s constitutional

claim were not adequately developed in state court and that

Fritz [wa]s thus entitled to an evidentiary hearing in federal

district court to determine whether his motion to proceed pro

se was made as a tactic to delay the start of trial” (emphasis

added)); Maxwell, 673 F.2d at 1036 & n.5 (deferring to the

district court’s finding, on habeas review of a state court

decision, that Maxwell’s motion was not made for the

purpose of delay).
BURTON V. DAVIS 29

IV

In the usual case, having determined that the state court

failed to apply the proper analysis and make the necessary

findings of fact required by federal law, we would now

simply review the district court’s determination of those

issues under the usual standards of appellate review. This,

however, is not the usual case.

Seventeen years after its decision on Burton’s direct

appeal, the California Supreme Court determined that

Burton’s lawyer, Ronald Slick, had reason to believe that

Burton asked to proceed pro se for the purpose of delaying

trial. The State argues that although the district court was

entitled to determine the timeliness of Burton’s Faretta

motions, the district court was required under former

28 U.S.C. § 2254(d) to defer to this finding by the California

Supreme Court.

For the reasons we explain below, however, the district

court did not have to defer to this finding. The California

postconviction proceedings only inquired whether, for

purposes of Burton’s Frierson claim, Slick had refused to

present the defense Burton wanted and whether Slick believed

Burton sought to delay trial because of a breakdown in the

attorney-client relationship. Burton’s Frierson proceedings,

as we explain, did not ask whether Burton intended to delay,

only whether Slick thought that was Burton’s intent.

A. Applicability of Former § 2254(d)

Under former 28 U.S.C. § 2254(d), state court findings of

fact are “‘presumed to be correct’ in a federal habeas corpus

proceeding unless one of eight enumerated exceptions
30 BURTON V. DAVIS

applies.” Miller v. Fenton, 474 U.S. 104, 105 (1985) (quoting

28 U.S.C. § 2254(d)). If the presumption of correctness

applies, it is the petitioner’s burden to show by convincing

evidence that the state court’s findings were erroneous. 

28 U.S.C. § 2254(d) (1994). If one of § 2254(d)’s exceptions

applies, however, the state court’s factual 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 exceptions

applied here because it concluded that § 2254(d) did not

apply. In the district court’s view, “whether or not [Burton]’s

motives were dilatory” was not a question of fact, but a mixed

question of law and fact subject to de novo federal review. 

See Cuyler v. Sullivan, 446 U.S. 335, 342 (1980) (questions

of law and mixed questions of law and fact not subject to

§ 2254(d)’s presumption). In this regard, we think the district

court was incorrect.

Our decisions have uniformlytreated the determination of

a petitioner’s purpose in seeking to represent himself as a

question of fact. In Fritz, for example, we explicitly

recognized that a state court’s finding of purpose to secure

delay is “entitled to deference in a federal habeas

proceeding.” Fritz, 682 F.2d at 785. Accordingly, we

considered the § 2254(d) exceptions and ultimatelyconcluded

that “no deference [wa]s warranted” in that case under two

exceptions: § 2254(d)(3) (material facts not adequately

developed in state court) and § 2254(d)(6) (petitioner not

afforded a full, fair, and adequate hearing). Id.

In Maxwell, we treated another state court’s finding of

purpose to delay in a similar manner. See 673 F.2d at 1033,

1035–36. As in Fritz, we recognized that, as a general rule,
BURTON V. DAVIS 31

“[t]he district court in a habeas corpus proceeding must

presume that the state trial court’s factual determinations are

correct.” Id. at 1035 (citing 28 U.S.C. § 2254(d)). We

nevertheless agreed with the district court that “nothing in the

record supported” the state court’s determination that the

petitioner’s request was made for the purpose of delay. Id. at

1035–36. The state court’s findings thus fell under

§ 2254(d)’s last exception: (d)(8) (finding not fairly

supported by the record). Id.

It is true, as Burton argues, that “‘basic, primary, or

historical facts’ are the ‘factual issue[s]’ to which the

statutory presumption of correctness dominantly relates.” 

Thompson v. Keohane, 516 U.S. 99, 110 (1995) (alteration in

original) (quoting Miller, 474 U.S. at 112). But the Supreme

Court has recognized that § 2254(d)’s presumption may apply

to questions that go beyond mere “basic, primary, or

historical facts.” These questions often involve “individualspecific decision[s]” that are “unlikely to have precedential

value,” and often “depend[] heavily on the trial court’s

appraisal of witness credibility and demeanor.” Id. at 111,

114; see, e.g., Wainwright v. Witt, 469 U.S. 412, 429 (1985)

(juror impartiality); Maggio v. Fulford, 462 U.S. 111, 117

(1983) (per curiam) (defendant’s competency to stand trial);

Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en

banc) (defendant’s knowing and intelligent waiver of

Miranda rights).

Whether a petitioner’s Faretta request is motivated by

delay is just such a question of fact. Determining that fact

will be different for each petitioner and will depend on the

court’s assessment of the totality of the petitioner’s conduct

both before and after the request to determine whether the

petitioner’s actions “are consistent with a good faith assertion
32 BURTON V. DAVIS

of the Faretta right.” Fritz, 682 F.2d at 784. Indeed, for

these same reasons, we concluded in Maxwell that we would

review the district court’s determination of no purpose to

delay as a finding of fact:

The [district court’s] finding[] that

Maxwell[’s] . . . motion was not made for the

purpose of delay [is] based on the fact-finding

tribunal’s experience with the mainsprings of

human conduct, and on its experience in

conducting trials and observing defendants’

behavior. We therefore review the district

court’s determinations as findings of fact,

which, although based solely on documentary

evidence, will be set aside only if clearly

erroneous.

673 F.2d at 1036 (citation and internal quotation marks

omitted); see also United States v. Smith, 780 F.2d 810, 812

(9th Cir. 1986) (holding that “[t]he [district] court’s findings,

including the ultimate finding of intent [to delay], were not

clearly erroneous”).

Accordingly, the district court erred when it treated the

purpose to delay question as a mixed question of law and fact. 

Nevertheless, we may uphold the district court’s decision to

decide that factual question de novo if Burton shows or “it . . .

otherwise appear[s]” that one of § 2254(d)’s eight exceptions

applies. 28 U.S.C. § 2254(d) (1994); see also Buckley v.

Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc) (“We

may affirm on any ground supported by the record, even if it

differs from the rationale used by the district court.”).
BURTON V. DAVIS 33

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

Burton argues that the district court was not required to

presume that his requests were a mere delay tactic because,

under § 2254(d)(1), the merits of that factual dispute were not

resolved in the state postconviction hearing and, under

§ 2254(d)(2) and (d)(6), he was denied a full, fair, and

adequate state court hearing on the issue. We agree with both

contentions.8

1. Burton’s Frierson proceedings did not resolve

whether Burton’s sole purpose was to delay trial

Most fundamentally, the district court was not required to

presume that Burton asked to represent himself for the sole

purpose of delaying trial because the merits of that factual

issue were not resolved in Burton’s Frierson proceedings. 

See 28 U.S.C. § 2254(d)(1) (1994); see Chacon v. Wood,

36 F.3d 1459, 1465 (9th Cir. 1994) (holding that there was

“no relevant state court finding to which deference was due

under 28 U.S.C. § 2254(d)” because the state court’s

“findings [we]re not responsive to [the petitioner]’s

contention”). Indeed, that factual issue was not even relevant

to Burton’s Frierson claim.

Before we can explain why the California Supreme

Court’s Frierson findings did not resolve the timeliness of

Burton’s Faretta claim, a brief overview of the Frierson

decision is in order. At issue in Frierson was a defense

8 Because we conclude that these exceptions to § 2254(d)’s presumption

of correctness apply, we decline to reach Burton’s alternative argument

that, under § 2254(d)(8), the California Supreme Court’s finding is not

fairly supported by the record.
34 BURTON V. DAVIS

counsel’s decision—over a defendant’s strenuous

objections—not to present a particular defense at the guilt

phase of trial, but to reserve that defense for the penalty

phase. 705 P.2d at 399–400. The California Supreme Court

held that the issue was “whether a defense counsel’s

traditional power to control the conduct of a case includes the

authority to withhold the presentation of any defense at the

guilt/special circumstance stage of a capital case, in the face

of a defendant’s openly expressed desire to present a defense

at that stage.” Id. at 401. As the court observed, “this issue

is quite distinct from the question whether trial counsel

provided competent representation.” Id.

In Frierson’s case, the court had “little doubt that trial

counsel’s actions reflected his judgment as to the most

promising trial strategy,” id. at 402, but nevertheless held that

“counsel could [not] properly refuse to honor [the]

defendant’s clearly expressed desire to present a defense at

that stage,” a right that was related to a defendant’s Sixth

Amendment right to “‘personally . . . make his defense.’” Id.

at 403 & n.4 (quoting Faretta, 422 U.S. at 819). The court

emphasize[d] that [its] holding rests on the

fact that the record in this case expressly

reflects a conflict between defendant and

counsel over whether a defense was to be

presented at the guilt/special circumstance

stage. . . . Thus, nothing in this opinion is

intended to suggest that—in the absence of

such an express conflict—a court is required

to obtain an on-the-record, personal waiver

from the defendant whenever defense counsel

chooses to rest without putting on a defense.
BURTON V. DAVIS 35

Id. at 405 n.8. The court thus reversed Frierson’s penalty

judgment. Id. at 406.

As the California Supreme Court explained in Burton’s

postconviction proceedings, “Frierson means that ‘a defense

counsel’s traditional power to control the conduct of a case

does not include the authority to withhold the presentation of

any defense at the guilt/special circumstance stage of a capital

trial when the defendant openly expresses a desire to present

a defense at that stage and when there exists credible

evidence to support that defense.’” In re Burton, 147 P.3d at

1020 (quoting People v. Milner, 753 P.2d 669, 681 (Cal.

1988)). A defendant’s Frierson right comes into play “only

in [the] case of an express conflict arising between the

defendant and counsel.” Id. (quoting People v. Bradford,

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

When the California Supreme Court referred Burton’s

postconviction claims to a referee for findings, it did not ask

the referee to rule on Burton’s Faretta claim. Instead, it

asked the referee for findings on Burton’s Frierson claim. 

These are different inquiries, representing different rights,

although there may be some overlap. See Frierson, 705 P.3d

at 403 & n.4. Accordingly, when the referee issued his

findings, he necessarily focused on what Slick believed

Burton wanted him to do with respect to trial strategy, not

whether or why Burton wished to represent himself.

The California Supreme Court made that quite clear to the

referee. Here is the sixth reference question put to the

referee: “Did Slick have reason to believe that Petitioner’s in

court requests to represent himself were made for the purpose

of delaying trial, rather than dissatisfaction with Slick’s trial

strategy?” The first six words of that question are critical. 
36 BURTON V. DAVIS

Did Slick have reason to believe? The question could have

asked about Burton’s purpose directly, but instead, consistent

with Frierson, it asked about what Slick had reason to believe

about Burton’s purpose and whether there was a conflict

between them. The referee could not have been clearer on

this point: “What difference does it make [what Burton was

thinking]? The question is what’s going on in Slick’s mind,

not Mr. Burton’s mind.”

The referee’s findings were confined by the limited scope

of the question. The referee began his response to the sixth

reference question by focusing on Slick’s testimony. Slick

testified that Burton told him he was “not ready to go to trial”

and “[c]ouldn’t present a reason” and that Slick “did not

believe that Petitioner’s requests to represent himself on four

occasions in August 1983 indicated a dissatisfaction with Mr.

Slick’s trial strategy.” The referee then pointed to Slick’s

stated belief that Burton was “not emotionally ready to go to

trial at that time.” So far, these findings go directly to what

Slick had reason to believe and only indirectly to what

Burton’s actual purpose was. As evidence of Burton’s

motivation, this evidence would be hearsay.

The referee then looked to whether other evidence

corroborated Slick’s statements. The referee pointed, first of

all, to Burton’s statement that other death row inmates tended

to have their cases continued longer, a conclusion that was

unsurprising since Slick had already asked for a continuance

in his case. He also noted that Burton had refused to meet on

one occasion with Dr. Michael Maloney, a psychologist hired
BURTON V. DAVIS 37

by Slick.9 The referee found that Burton’s statement and

Burton’s refusal to meet with the psychologist “suggest[ed]”

that Burton was not “truly interested in vigorously defending

his case.” These findings all support the referee’s ultimate

finding, in response to the reference question, that Slick did

have reason to believe Burton’s requests to represent himself

were made for the purpose of delaying trial, and not because

Burton disagreed with Slick’s strategy.

The California Supreme Court’s own findings are

similarly limited. After noting Slick’s testimony that “it is

not unusual for defendants to prefer to delay trial and to give

the appearance of being able to ‘wait it out,’” and that

“Burton, who was facing a capital trial, was such a

defendant,” the court then proceeded to discuss whether

“Slick’s assessment of Burton’s motivation was corroborated

by other evidence at the hearing.” In re Burton, 147 P.3d at

1026. Although the court found that Burton’s “game

playing” with the psychologist and his statement that other

inmates with death penalty cases all tended to have their cases

continued longer were “fully consistent with a defendant who

was interested in delay for delay’s sake,” those statements

must be read in context. In context, the court was identifying

 

9 The referee did not mention the reason Burton gave for declining the

interview. Dr. Maloney stated in his declaration that “[Burton] told me

that he wanted nothing to do with Mr. Slick and was representing

himself.” In the next sentence, Dr. Maloney added that he was later able

to interview Burton regarding his background.

Nor did the referee mention that a week before Dr. Maloney first

attempted to interview Burton, Burton cooperated with a different expert,

Dr. Kaushal Sharma. Burton told Dr. Sharma he was innocent, and Dr.

Sharma reported to Slick that if Burton’s claim was true, there was

nothing to support a mental state defense.
38 BURTON V. DAVIS

evidence that “corroborated” “Slick’s assessment of Burton’s

motivation” and that refuted Burton’s argument that “the only

reasonable inference to be drawn from his Faretta motions

[wa]s that he wanted to defend against the state’s case.” Id.

(internal quotation marks omitted).

The court thus made clear that Burton’s Faretta motions

were considered only for the purpose of determining whether

they would “support Burton’s Frierson claim.” Id. at 1025;

see also id. at 1026 (“Burton’s Faretta motions reflected a

dissatisfaction with Slick’s failure to delay the trial, not a

dissatisfaction with Slick’s trial strategy.”). Concluding that

it was possible for Slick to infer that Burton was motivated by

delay is not the same as concluding that Burton actually

intended to delay trial for delay’s sake.

To be sure, some of the referee’s and the California

Supreme Court’s findings seem to go directly to Burton’s

actual motives. For example, the referee concluded his

response to the sixth reference question by stating, “Petitioner

tried to delay the matter by seeking to represent himself, but

those requests were denied.” Similarly, the California

Supreme Court concluded that “Burton plainly was

dissatisfied with the imminent approach of his capital trial,

and Slick was aware of the fact his client was dissatisfied.” 

Id. at 1029.

But saying that Burton “tried to delay the matter” or was

“dissatisfied with the imminent approach of his capital trial”

does not mean that the requests were a “tactic to secure

delay.” Fritz, 682 F.2d at 784. Fritz made it clear that a mere

showing that a defendant wants to delay trial is not enough:
BURTON V. DAVIS 39

Delay per se is not a sufficient ground for

denying a defendant’s constitutional right of

self-representation. Any motion to proceed

pro se that is made on the morning of trial is

likely to cause delay; a defendant may

nonetheless have bona fide reasons for not

asserting his right until that time, and he may

not be deprived of that right absent an

affirmative showing of purpose to secure

delay.

Id. (citation omitted). There is a very important distinction

between wanting to delay trial for legitimate reasons and

wanting to delay trial for the purpose of securing delay.

10

Moore wanted to delay trial, see Moore, 108 F.3d at 262

(Moore asked for a continuance “to prepare for trial”), and so

did Armant, Armant, 772 F.2d at 554–55 (Armant asked for

three weeks to prepare and answered “no” when the trial

judge asked if he was “prepared to go to trial in this matter

today”). Yet in both cases we concluded that nothing in the

record suggested that the requests were made solely for the

purpose of delay. See Moore, 108 F.3d at 264; Armant,

772 F.2d at 556; see also id. at 556 n.1 (explaining that the

petitioner’s legitimate purpose throughout the proceedings

10 The dissent accuses us of misconstruing Fritz when we discuss

whether Burton had a “sole purpose” of delay. Dissent Op. 66 n.3. The

problem with the dissent’s assertion is that it ignores the important

distinction drawn in Fritz itself: that “[d]elay per se is not a sufficient

ground for denying a defendant’s constitutional right of selfrepresentation.” 682 F.2d 784. Instead, our framing of the issue is

nothing more than a recognition that nearly all Faretta requests will have

an inherent component of delay, and the courts’ task is to sift between

Faretta requests with “bona fide reasons” underlying them, and those

motivated merely by a desire to delay for delay’s sake. Id.
40 BURTON V. DAVIS

“was to be afforded an opportunity to conduct his defense as

he thought best”).

Here, no one questions that Burton wanted to delay trial;

he clearly did. The question is why he wanted to delay

trial—did he have legitimate, good faith reasons, or was this

a bad-faith attempt on his part to delay trial for the mere

purpose of delaying trial? In our view, the California

Supreme Court never conclusively answered this question, in

large measure because the court was focused on a different

question.

If anything, the California Supreme Court’s opinion and

the referee’s report both suggest that the delay was not

Burton’s sole purpose and that Burton in fact did ask to delay

trial for legitimate reasons. The California Supreme Court

found that Burton “seemed focused on investigating all

possible avenues of defense, including defenses of alibi and

mistaken identification.” In re Burton, 147 P.3d at 1028; cf.

Armant, 772 F.2d at 556 n.1. And the referee found that “the

credible evidence adduced at the Reference Hearing was that

Petitioner was concerned about how quickly his case was

moving forward and that he thought that Mr. Slick was not

devoting enough time to his case.” Cf. Moore, 108 F.3d at

262 (Moore told his judge “that he had doubts about his

court-appointed lawyer” and, on another occasion, “engaged

in a lengthy discussion” with the court “about his

dissatisfaction with his lawyer and his desire to represent

himself”). Although these findings were not enough to

establish a Frierson claim, they positively support Burton’s

contention that his Faretta requests were not a tactic to secure

delay. See Fritz, 682 F.2d at 784.
BURTON V. DAVIS 41

The State argues that the referee properly determined

Burton’s subjective purpose in seeking to represent himself

and that the California Supreme Court accepted that

determination. In particular, the State contends that the sixth

reference question actually does put at issue Burton’s

purpose, notwithstanding the question’s express focus on

Slick’s understanding. This is so, the State argues, because

“Slick testified at the reference hearing that he could only

answer reference question No. 6 on the basis of Petitioner’s

statements to Slick.” Thus, “any factual findings regarding

Petitioner’s statements to Slick, and the corresponding

inferences that could be drawn from those statements as to

Petitioner’s actual motive to delay the trial, were properly

encompassed within the scope of the reference question.”

We do not doubt that the sixth reference question

encompassed the possible “inferences that could be drawn”

from Burton’s statements. It is hard to imagine how else a

factfinder would go about determining whether Slick had

reason to believe that Burton’s Faretta requests were made

for the purpose of delaying trial rather than for the purpose of

expressing a desire to present a defense. But Fritz does not

ask whether invoking Faretta with a purpose to delay is a

permissible “inference that could be drawn” by a single

person, the petitioner’s lawyer; it asks whether the

defendant’s actual and sole purpose was to delay trial and

instructs that the defendant’s purpose is to be determined

from the totality of the circumstances both leading up to and

following the request. See id. at 784–86. Under Frierson, the

question is entirely different—the question is, as the referee

candidly put it, “what’s going on in Slick’s mind, not [what’s

going on in] Burton’s mind.”
42 BURTON V. DAVIS

We thus conclude that the merits of Burton’s actual

purpose in seeking to represent himself were not decided in

the Frierson proceedings. Under § 2254(d)(1), then, the

district court was not required to presume that Burton’s

request was a mere delay tactic.

2. Burton’s Frierson proceedings did not afford a full,

fair, and adequate hearing on his purpose in seeking

to represent himself

Even if the California Supreme Court had found that

Burton’s Faretta motions were a mere delay tactic, Burton

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 and fair hearing”), (d)(6) (“applicant

did not receive a full, fair, and adequate hearing”) (1994). 

The Frierson proceedings were inadequate to fully and fairly

resolve Burton’s Faretta claim for at least three reasons.

a. The burden of proof was not placed on the

government

Few things are more integral to the fairness of a court’s

factfinding procedure than placing the burden of proof on the

right party. Yet here, by proceeding under Frierson instead

of Faretta, the State shifted the burden of proof from the

State, where it belongs, to Burton, where it does not belong.

As we explained in Fritz, the burden is on the State, not

the defendant, to make “an affirmative showing” that a

defendant’s pre-empanelment Faretta request is made for the

purpose of delaying trial. Fritz, 682 F.2d at 784; see also id.

(“[A] motion to proceed pro se is timely if made before the
BURTON V. DAVIS 43

jury is empaneled, unless it is shown to be a tactic to secure

delay.” (emphasis added)); Moore, 108 F.3d at 264 (same).

Frierson reverses that burden of proof. As the California

Supreme Court made clear in Burton’s case, it was Burton’s

burden to prove his Frierson claim. See In re Burton,

147 P.3d at 1022 (accepting Slick’s account of events

“because Burton, despite offering an array of objections, fails

to identify a convincing rationale for rejecting it”); id. at 1028

(agreeing with the referee that “Burton failed to rebut, by a

preponderance of the evidence, Slick’s testimony that he had

discussed his trial strategy at the guilt phase with Burton and

that Burton did not object to it”); id. at 1029 (discussing the

“defendant’s burden in establishing a Frierson claim”). This

difference in burden of proof is reason alone not to apply the

presumption of correctness in this case.

In many cases, the burden of proof could completely

determine the outcome of the constitutional claim. Indeed,

this case is a good example. Because there was no express,

on-the-record conflict over defense strategy, Burton had to

take the position that the “only reasonable inference to be

drawn from his [statements] is that he wanted to defend

against the state’s case.” Id. at 1026 (internal quotation

marks omitted). Under this demanding burden, if the

evidence shows that his actions were consistent with an intent

to delay for delay’s sake, he fails to meet his burden and

loses.

By contrast, the Sixth Amendment inquiry places the

burden of proof on the State and requires the court to

“examine the events preceding the motion, to determine

whether they are consistent with a good faith assertion of the

Faretta right.” Fritz, 682 F.2d at 784. If the evidence shows
44 BURTON V. DAVIS

that the petitioner’s actions were consistent with an intent to

delay for legitimate reasons (such as a conflict with counsel

as to the adequacy of pretrial investigation), the State fails to

meet its burden and loses.

Given that the State bears the burden of proving that a

defendant’s Faretta motion was a delay tactic, it would be

manifestly unfair to bind Burton to an adverse factual

determination made in proceedings in which he bore the

burden of proof and the State got the benefit of the doubt.

b. The proper legal standard was not applied

In addition to placing the burden of proof on Burton, the

California Supreme Court never considered the timeliness of

Burton’s Faretta motions under the proper legal standard. In

Fritz, we described the proper inquiry as follows:

In determining whether a defendant’s request

to defend himself is a tactic to secure delay,

the court may, of course, consider the

resulting effect of delay. A showing that a

continuance would be required and that the

resulting delay would prejudice the

prosecution may be evidence of a defendant’s

dilatory intent. . . . The inquiry, however,

does not stop there. The court must also

examine the events preceding the motion, to

determine whether they are consistent with a

good faith assertion of the Faretta right and

whether the defendant could reasonably be

expected to have made the motion at an earlier

time.
BURTON V. DAVIS 45

682 F.2d at 784–85. Fritz thus requires courts to “consider

the totality of the circumstances leading up to [the] Faretta

motion and the effect that granting the motion would have

had on the proceedings.” Avila, 298 F.3d at 753.

Neither the referee nor the 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, not deciding whether a Faretta motion was timely. 

Indeed, the California Supreme Court even emphasized that

it would consider the referee’s findings “only insofar as they

are relevant to [the court’s] analysis of Burton’s claim that he

was denied the right to present his desired defense under

Frierson.” In re Burton, 147 P.3d at 1019.

Whatever their reasons, the bottom line is that the

California courts never considered the timeliness of Burton’s

Faretta requests under the proper inquiry. It was thus not

only appropriate but necessary for the district court to

conduct the proper inquiry in the first instance. See Fritz,

682 F.2d at 784–85 (holding, under former § 2254(d)(6), that

the state court’s finding that Fritz’s Faretta motion “was a

tactic to delay his scheduled trial” was not entitled to a

presumption of correctness because the state court did not

“ma[ke] an express inquiry into Fritz’s purpose, . . . focusing

instead on the nature of the Faretta right and on Fritz’s ability

to waive knowingly his right 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 conduct an evidentiary hearing because

“certain statements by the [state] trial judge . . . create[d]

doubt as to whether he applied the correct test in determining

whether Pierce had waived his rights after requesting an

attorney”).
46 BURTON V. DAVIS

To be clear, we do not hold that Burton’s Frierson

proceedings were inadequate to resolve his Frierson claim;

we only hold that the Frierson proceedings were inadequate

to resolve his Faretta claim. A state court hearing may be

full, fair, and adequate as to one issue, but not full, fair, and

adequate as to another. The Seventh Circuit’s decision in

Allen v. Buss, 558 F.3d 657 (7th Cir. 2009), illustrates this

point. Allen, the petitioner, sought state postconviction relief

on the ground that his execution was prohibited by Atkins v.

Virginia, 536 U.S. 304 (2002). Id. at 662. The Indiana

Supreme Court rejected the Atkins claim, reasoning that

because the trial court had given little weight to Allen’s claim

of mental disability as a mitigating factor, Allen had already

“had a full and fair opportunity to litigate the issue of whether

he is mentally retarded” for Atkins purposes. Id. (citation and

internal quotation marks omitted). On federal habeas review,

the State maintained that “the Indiana courts found Allen to

be not mentally retarded and . . . that such findings are

presumed correct on habeas review.” Id. at 663.

The Seventh Circuit disagreed. It noted, first, that “the

trial court’s analysis makes clear that it engaged in a

substantively different inquiry from that mandated by

Atkins.” Id. It then noted that the state’s sentencing order did

not conclude that Allen was not mentally disabled; it instead

found that Allen’s evidence showed “a very slight mitigating

factor” that was insufficient to overcome other aggravated

circumstances. Id. Thus, the court concluded, “Because the

Indiana state courts never considered Allen’s evidence using

the proper Atkins inquiry (which would have required them

to apply the appropriate standard for mental retardation), it is

objectively unreasonable to conclude that Allen had a ‘full

and fair’ hearing on his Atkins claim.” Id. at 664.
BURTON V. DAVIS 47

Just as the state court failed to consider Allen’s Atkins

claim under the proper inquiry, the California Supreme Court

has never considered the timeliness of Burton’s Faretta

requests under the proper inquiry. Nor can we assume that

the California Supreme Court implicitly did so, for it was

deciding Burton’s Frierson claim, not his Faretta claim, and

thus had no reason to consider the required factors outlined in

Fritz.

No California court has ever considered Burton’s Faretta

claim under the proper federal standard. Because we only

presume a state court’s findings to be correct if the test used

to reach those findings was correct, see Fritz, 682 F.2d at

785; Pierce, 572 F.2d at 1342, Burton was entitled to have the

district court resolve 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 not resolve the

timeliness of Burton’s Faretta motions under the proper legal

standard; it also declined to consider facts material to the

federal timeliness rule. “Failure to consider key aspects of

the record is a defect in the fact-finding process.” Taylor v.

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

In Frierson, the California Supreme Court held that a

capital defendant’s trial counsel is required to comply with a

defendant’s clearly expressed desire to present a guilt-phase

defense, at least where there is credible evidence to support

that defense. 705 P.2d at 403. In Burton’s case, because

there was no “clear and express conflict over defense

strategy” on the trial court record, In re Burton, 147 P.3d at

1021, Burton faced a steep uphill battle. He had to prove that
48 BURTON V. DAVIS

his statements to Slick and Kleinbauer, together with his

statements on the record—including his four Faretta

motions—amounted to a clear, open, and unequivocal

expression of his desire to present a defense. Id. at 1021–29;

see id. at 1028 (“[W]e reiterate that a defendant must clearly

and openly—and, thus, unequivocally—express a desire to

present a particular defense in order to establish a violation of

Frierson.”). In order to show that his Faretta requests

amounted to an unequivocal expression of his desire to

present a defense, Burton had to prove that such a desire was

“the only reasonable inference to be drawn” from his in-court

statements. Id. at 1026 (emphasis added) (internal quotation

marks omitted).

In contrast to the Faretta timeliness inquiry, where the

defendant’s purpose is all that matters, under Frierson it is

defense counsel’s understanding of the defendant’s wishes

that matters. See id. at 1028–29 (explaining that the purpose

of the clear-expression requirement is to “provide[] counsel

with the necessary signal of the defendant’s wishes

concerning his or her defense” and to “reduce[] the likelihood

of extensive after-the-fact debate as to what those wishes

might have been” (emphasis added)). Accordingly, the key

issue on Burton’s Frierson claim was not whether Burton

wanted to present a defense or whether he wanted to represent

himself for other legitimate reasons; it was whether Slick was

on notice that Burton wanted to present a defense. Frierson

and Faretta recognize different interests defendants have. A

defendant may admire his attorney for his skill but disagree

with the strategy; that is a Frierson problem, but not a Faretta

problem. On the other hand, a defendant may agree with his

attorney on the strategy but believe the attorney is lazy or

incompetent; that is a Faretta problem, but not a Frierson

problem.
BURTON V. DAVIS 49

That only Frierson was at issue in Burton’s state

postconviction proceedings is borne out by the questions the

California Supreme Court posed to the referee. All of the

questions addressed, in one way or another, whether Burton

put Slick on notice that he wanted a guilt phase defense. 

None of the questions addressed Burton’s subjective desire to

represent himself. Indeed, none of the questions required any

determination of Burton’s state of mind—his intentions, his

purpose, his good or bad faith. Rather, the questions focused

on what Burton told Slick, what Slick knew or believed, and

what Slick heard Burton tell the trial judge on the record. For

example, the court asked the referee:

1. Did petitioner give attorney Ron Slick . . .

the names of witnesses he believed should

be interviewed and tell Slick that those

witnesses could support a guilt phase

defense or defenses? . . .

2. Did petitioner tell Slick that petitioner’s

purported confession had been falsified?

. . .

6. Did Slick have reason to believe that

petitioner’s in court requests to represent

himself were made for the purpose of

delaying trial, rather than dissatisfaction

with Slick’s trial strategy?

Id. at 1018–19 (emphasis added).

The referee apparently got the message. At the hearing,

Burton testified that Kleinbauer was not the first person who

told him that he could demand to represent himself. When
50 BURTON V. DAVIS

the State’s attorney asked Burton when he had first learned

that he could do so, Burton’s attorney objected to the question

as irrelevant and beyond the scope. The referee agreed: “I

just continue to fail to see the relevance there. . . . Advice he

got from persons other than Kleinbauer seems to . . . me to be

very irrelevant.” The referee may very well have been right

that the timing of when Burton learned that he could seek to

represent himself was irrelevant to the Frierson claim. We

express no opinion on that issue. But surely such evidence

would be relevant to determining whether Burton’s request to

represent himself was made in good faith. See Fritz, 682 F.2d

at 784.

Just as the referee excluded evidence relevant to the

Faretta timeliness inquiry, the California Supreme Court

disregarded such evidence when it was raised by Burton. For

example, even though Burton’s statements to the trial judge

suggested that Burton was interested in pursuing additional

investigation of his case, the court found those statements

irrelevant to its analysis under Frierson because Burton

“never expressed a desire to Slick that any particular defense

be presented.” In re Burton, 147 P.3d at 1028. The court

then added:

Burton instead seemed focused on

investigating all possible avenues of defense,

including defenses of alibi and mistaken

identification, but clearly and openly

expressed a desire only that all of these

investigations be completed before trial. 

Frierson, however, does not require that an

attorney defer to a client’s wishes as to the

scope or duration of pretrial investigation. 

The reasonableness of the attorney’s
BURTON V. DAVIS 51

investigation is . . . , as the parties concede,

beyond the scope of the order to show cause.

Id. Once again, the court may well be right that an attorneyclient dispute over the reasonableness of pretrial investigation

is irrelevant to a Frierson claim. But it can hardly be denied

that a conflict over the scope of pretrial investigation is

relevant to the purpose-to-delay question under Faretta. See

Armant, 772 F.2d at 554 (finding no evidence of purpose to

delay where Armant complained of difficulties with his

attorney, including his attorney’s failure to subpoena a

witness and give him a copy of the preliminary hearing

transcript); Fritz, 682 F.2d at 785 (remanding to the district

court for an evidentiary hearing because the state court had

not adequately developed facts material to the purpose-todelay inquiry, including “when it became clear that Fritz and

[his trial counsel] had irreconcilable differences”).

This was not the only instance in which the court

discarded facts that may have been irrelevant to the Frierson

inquiry but that were clearly relevant to the Faretta inquiry. 

See, e.g., In re Burton, 147 P.3d at 1024 (“Kleinbauer’s

recollection of Burton’s statements . . . does not indicate that

he clearly expressed a desire to present a defense as opposed

to a desire for further investigation before a final tactical

decision could be made.”); id. at 1025 (rejecting argument

that Burton’s Faretta requests constituted a clear request to

present a defense because “his comments were mostly

directed to the question whether counsel had adequately

investigated”). Perhaps most notably, the court even

affirmatively found that “[t]he record . . . supports

Kleinbauer’s testimony that Burton was dissatisfied with

Slick.” Id. at 1023. Although this would surely be relevant

to the Faretta inquiry, see Fritz, 682 F.2d at 785, the
52 BURTON V. DAVIS

California Supreme Court dismissed it, noting that

“Kleinbauer’s testimony, however, does not support Burton’s

claim that he openly expressed a desire to present a defense,

nor does it undermine Slick’s testimony that he had discussed

trial strategy with Burton.” In re Burton, 147 P.3d at 1023.

In any event, even if the California Supreme Court had

considered evidence going to Burton’s actual reasons for

seeking to represent himself, the process would still have

been unfair to Burton. Because Burton’s state of mind was

not directly relevant to his Frierson claim and was not

submitted as an issue for the referee to decide, Burton was not

given fair notice that the Frierson proceedings would

effectively decide his Faretta claim. Under these

circumstances, we cannot say that the Frierson proceedings

gave Burton a full, fair, and adequate hearing on the

timeliness of his Faretta requests. See Lankford v. Idaho,

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

constitutionally fair procedure”).

The State’s arguments fail to convince us that the

Frierson proceedings were adequate to resolve the timeliness

of Burton’s Faretta requests. The State first argues that it

was Burton who, in his state habeas petition, “placed the

question of his actual motivation in seeking selfrepresentation at issue.” True, Burton’s petition did allege

“that [he] had sought on four occasions during the trial to

discharge his attorney and represent himself because of

Attorney Slick’s deficiencies.” In re Burton, 147 P.3d at

1017 (citation omitted). But in context, that allegation was

clearly intended to support Burton’s primary allegation that

“both Slick and the trial court knew the attorney’s actions

were contrary to Petitioner’s express wishes.” Id. (internal

quotation marks omitted). That is, Burton was alleging that
BURTON V. DAVIS 53

his four requests to discharge Slick and represent himself

because of Slick’s deficiencies constituted his “express wish”

to put on a defense. The California Supreme Court clearly

understood this context, as it framed its sixth reference

question with regard to what Slick had reason to believe

about Burton’s motives in asking to represent himself.

The State also points to two instances in the reference

hearing that, it claims, show that Burton “had a full and fair

opportunity at the reference hearing to litigate the issue of his

actual purpose in requesting self-representation.” In the first,

Burton’s attorney asked Kleinbauer whether Burton had told

her “that he wanted to represent himself in order to delay the

trial,” to which Kleinbauer answered that he had not. (Just

before this testimony, Kleinbauer testified that Burton had

told her that “the pace of the investigation, the fact that there

was more to do, was one of the factors that led to his

dissatisfaction [with Slick].”) In the second, Burton was

asked on direct whether he told Slick about his reasons for

seeking self-representation, to which Burton answered that he

had told Slick the reason was “because the investigation in

my case wasn’t completed.”

But these questions only show that some facts that would

have been relevant to Burton’s Faretta claim were developed;

this falls far short of showing that the facts were fully

developed such that Burton 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 presumption of

correctness even though “much of the evidence adduced at

the [state court] hearings is pertinent to Fritz’s motivation”). 

Even as we acknowledge that some Faretta-relevant facts

were developed in the reference hearing, the State has not

shown that any of these material facts were actually
54 BURTON V. DAVIS

considered by the California Supreme Court. Quite to the

contrary, the court expressly declined to consider such

evidence. See, e.g., In re Burton, 147 P.3d at 1028

(acknowledging that Burton “seemed focused on

investigating all possible avenues of defense” but concluding

that “[t]he reasonableness of the attorney’s investigation is

. . . , as the parties concede, beyond the scope of the order to

show cause”).

* * *

To summarize, we conclude that the district court was

entitled to determine Burton’s purpose in seeking to represent

himself. We reach this conclusion for two independent

reasons. First, “[t]here was . . . no relevant state court finding

to which deference was due under 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 Slick had

“reason to believe” Burton’s purpose was to delay trial; it did

not and, in fairness to Burton, could not find that Burton

actually intended to delay trial for the mere sake of delay.

Second, the Frierson proceedings before the California

Supreme Court did not afford Burton a full, fair, and adequate

hearing on the timeliness of his Faretta requests. See

28 U.S.C. § 2254(d)(2), (d)(6) (1994). A full, fair, and

adequate hearing would have placed the burden of proof on

the State, not Burton; would have afforded Burton notice that

he was litigating his actual purpose in seeking to represent

himself; and would have deemed relevant evidence of what’s

going on in Burton’s mind, not just “what’s going on in

Slick’s mind.” More fundamentally, a full, fair, and adequate

hearing would have applied the actual inquiry required for

resolving the timeliness of Faretta requests. See Fritz,
BURTON V. DAVIS 55

682 F.2d at 785 (state court’s purpose-to-delay finding not

entitled to a presumption of correctness under § 2254(d)(6) in

part because state courts made no “inquiry into Fritz’s

purpose”); id. at 784–85 (setting out the proper inquiry); cf.

Allen, 558 F.3d at 663. The State does not contest that the

California Supreme Court applied an entirely different

inquiry, and we find its arguments that Burton was on notice

that he was litigating two claims for the price of one wholly

unpersuasive. To the extent the California Supreme Court’s

decision on Burton’s Frierson claim can be read as

determining the ultimate factual issue of Burton’s intent in

asking to represent himself, that determination is not entitled

to a presumption of correctness.

V

Having determined that the district court was not bound

by any relevant state court finding, we now review the district

court’s determination of the timeliness of Burton’s Faretta

requests. A request to represent oneself must be accepted so

long as the request is unequivocal, timely (i.e., made before

the jury is empaneled), and not intended to secure a delay in

the proceedings. Armant, 772 F.2d at 555 (citing Fritz,

682 F.2d at 784). The State does not dispute that Burton’s

requests were unequivocal and made before the jury was

empaneled; thus, the requests were “timely as a matter of law

unless [they were] a tactic to secure delay.” Id.

Based on its own review of the record evidence, the

district court concluded that Burton’s “stated reasons for

asserting his right to self-representation were legitimate and

not made solely for the purpose of delay.” Aside from the

State’s argument, which we have already rejected, that the

district court was bound by the California Supreme Court’s
56 BURTON V. DAVIS

factual findings, the State does not contend that the district

court’s finding was erroneous. Because, however, granting

the writ means sending this case for retrial nearly thirty-two

years after the original trial—a formidable task—we review

the district court’s finding on the merits even though the State

has waived the issue.

We review a district court’s determination that a Faretta

motion was not a delay tactic for clear error. See Maxwell,

673 F.2d at 1036 (reviewing a “district court’s determination[

that a motion was not a delay tactic] as [a] finding[] of fact,

which, although based solely on documentary evidence, will

be set aside only if clearly erroneous”). Under that standard,

we will reverse the district court’s findings of fact only if we

have “a definite and firm conviction that a mistake has been

made.” Sepulveda v. Pac. Mar. Ass’n, 878 F.2d 1137, 1139

(9th Cir. 1989).

The district court did not clearly err in finding that

Burton’s Faretta requests were made for legitimate, not

purely dilatory, reasons. As the district court correctly noted,

it is not enough for the State to show the defendant would

need a continuance in order to prepare his own defense. See

Fritz, 682 F.2d at 784. Of course, the district court may

consider whether trial would be delayed and whether such a

delay would prejudice the prosecution, as well as whether the

petitioner could reasonably have been expected to make the

Faretta motion at an earlier time. Id. at 784–85. But these

factors are not dispositive. District courts must consider the

totality of the circumstances to determine whether the

petitioner’s sole purpose in seeking to proceed pro se was to

delay the proceedings. See Avila, 298 F.3d at 753.
BURTON V. DAVIS 57

The district court found that “Petitioner’s requests to be

allowed to proceed pro se were based on his complaints that[]

Mr. Slick was proceeding too fast; further investigation still

needed to be conducted; and Mr. Slick had barely met with

him since the case began.” If these were indeed Burton’s

reasons, they were certainly legitimate reasons. A desire to

have one’s case fully investigated is clearly a good reason for

wanting to delay a capital murder trial. See Armant, 772 F.2d

at 554,556 & n.1 (concluding that “nowhere in the record is

there even a suggestion that Armant made this request for the

purpose of delay” where Armant complained that his attorney

failed to subpoena a witness and provide him with a copy of

a hearing transcript). And so is dissatisfaction with counsel. 

See Moore, 108 F.3d at 262, 264 (concluding that “the record

d[id] not suggest” that “Moore’s request was a tactic for

delay” where Moore had told the trial judge “that he had

doubts about his court-appointed lawyer” and had engaged in

a lengthy discussion with the judge “about his dissatisfaction

with his lawyer and his desire to represent himself”); Fritz,

682 F.2d at 785 (remanding for the district court to determine

“when it became clear that Fritz and [his counsel] had

irreconcilable differences”).

The record firmly supports the district court’s finding that

these were in fact Burton’s reasons. The best evidence of

Burton’s reasons for asking to represent himself is the

transcript of Burton’s four Faretta motions. When Burton

first moved to represent himself, he told the court:

Your Honor, I would like to represent

myself due to the circumstances of lack of

interest as far as the investigation is concerned

with my case. There isn’t any that should

have been taken care of. I haven’t spent or
58 BURTON V. DAVIS

had enough time to communicate with my

lawyer because he haven’t given me the time,

because he feel that to me it is not worth it to

him, but to me it is worth it, because it is my

life that is involved and I don’t want to take

the fall for the real person in this crime.

These are the very reasons noted by the district court: “Mr.

Slick was proceeding too fast; further investigation still

needed to be conducted; and Mr. Slick had barely met with

him since the case began.”

When Burton renewed his request the next day, his

dissatisfaction with Slick was obvious. He told the court that

Slick’s “lack of interest” was “really out of hand” and that

“[t]his is my reason for wanting to represent myself.” He also

told the court, “I haven’t even seen Ron Slick. I see Ron

Slick every time I come to the court and I am tellin’ him the

real, but all I am gettin’ is the fake, the frame.” He also

reiterated his belief that his case had not been fully

investigated:

I am—this is not my crime . . . . I want to

investigate my case and find out all about the

things, because the investigator that

investigated this case told me personally that

something is shaky about my case and that

Ron is not really on my side for this case and

she wanted to be with me, to work with me,

because she know that it is something about

this case that is very shaky.

Burton was persistent. Six days after his second request,

he renewed his request again. He objected “to being
BURTON V. DAVIS 59

represented by Mr. Ron Slick” and moved “to resubmit the

conflict of interest motion filed verbally on Mr. Slick.”

A year and a half after the trial, Burton signed a

declaration in connection with his motion for a new trial. 

Burton stated that Slick only came to see him once, for fifteen

minutes, when he was incarcerated at the county jail. Slick

did come to visit him in the courthouse before hearings, but

those meetings lasted no more than ten minutes. Burton

recalled that when he told Slick that he did not commit the

crime and that he did not confess, Slick said he did not

believe Burton. Burton stated that August 10 was his first

opportunity to make a statement to the court, and that on that

day he told Slick that he felt the case was not sufficiently

prepared to go to trial. He explained, “I did know from our

investigator that a witness had been located who gave a

different description of the person who did the shooting of

Mr. and Mrs. Khwaja, and I wanted to know why that witness

had not been subpenaed [sic] to come to court.”

Burton’s statements are corroborated by other evidence in

the record. At the reference hearing, Slick testified that he

hired Kristina Kleinbauer to investigate the case and gave her

a list of tasks, including numerous witnesses to interview. 

Those witnesses included Otis Clements, family members,

probation officers, parole officers, and other people who

might have known Burton. Slick testified, further, that he

considered the tasks that he had outlined for Kleinbauer to be

necessary to the pretrial investigation of Burton’s case. Yet

when asked whether interviews offamilymembers, probation

officers, parole officers, and others had been conducted at the

time he announced ready for trial, Slick testified, “I think

not.” And when asked if, at the time he announced ready for

trial, “there really had been no investigation into the
60 BURTON V. DAVIS

background of Otis Clements,” Slick answered, “I’m sure

that’s correct, yes.” Kleinbauer’s testimony was consistent

with Slick’s—she testified that by the time trial began she

had not yet obtained a background history of Otis Clements

and, in fact, had not done any investigation regarding

Clements. Thus, there is ample evidence to support the

district court’s finding that “[n]o investigation, beyond

reading the police reports, had been done either into

Clements’s statements or his background.”

Slick told Burton’s trial judge just the opposite. When

Burton first asked to represent himself, Slick told the court

that he had “investigated this case to the best of [his] ability.” 

When Burton asked again the next day, Slick told the court,

“I can only indicate to the court that I am prepared for trial

and I am as prepared as I know how to be. I see no reason to

do anything other than try the case.” The judge then asked,

“I take it that you have investigated his allegation that he is

being framed by the co-defendant, Mr. Clements, in this

case?” “Yes, I have,” Slick replied.

That the investigation was complete was news to

Kleinbauer. She said that when she handed Slick a report on

August 10—the day Burton first asked to proceed pro

se—she had no idea that the trial was already underway. In

fact, she said, “[she] was still actively engaged in the

investigation of the case when [she] learned that Mr. Burton

had been convicted of capital murder and the jury had handed

out the death penalty.”11

11 We affirm the district court’s crediting of these statements, which

Kleinbauer made in one of her declarations during the course of Burton’s

postsentencing litigation. While the referee did conclude that

Kleinbauer’s testimony at the reference hearing was “virtually non-
BURTON V. DAVIS 61

Burton was clearly aware that his case had not been fully

investigated. This is apparent, first of all, from Burton’s incourt statements. It is also apparent from Kleinbauer’s

testimony at the reference hearing. The California Supreme

Court credited Kleinbauer’s testimony that “Burton had told

her he was not ready to go to trial and that he was dissatisfied

with Slick because the trial seemed to be rushing forward.” 

Id. at 1026 (alteration and internal quotation marks omitted). 

It also credited her statement in a 1993 declaration that she

had talked with Burton before the trial and “had instructed

Burton to tell Slick that he was not ready for trial, and that the

trial should take place next year some time, after all the

investigation was done.” Id. (emphasis added) (internal

quotation marks omitted). These findings may have been

insufficient to establish a Frierson claim, but they are enough

to establish that Burton had legitimate reasons for seeking to

represent himself.

The record also corroborates Burton’s statements that

there was a breakdown in the attorney-client relationship. 

Slick testified that Burton was “angry with me. He didn’t like

me, probably didn’t like anything about me.” When he told

Burton early on that they were “going to lose the [case],”

Burton “did not like it,” and “from then on, there was never

a good conversation.” According to Slick, Burton’s attitude

became “evasive and uncooperative” and Slick couldn’t

“really get meaningful communication with him.” When

existent” and that Kleinbauer “tried to shade her answers” at the reference

hearing in Burton’s favor, the referee nevertheless relied on Kleinbauer’s

statements in her postsentencing declarations, noting that “[those]

declarations were accurate whenmade.” The referee never concluded that

these statements, or any of Kleinbauer’s other statements that we discuss,

lacked credibility.
62 BURTON V. DAVIS

Kleinbauer was asked at the reference hearing whether

Burton had told her why he wanted to represent himself, she

answered that “[h]e felt dissatisfied with his attorney”

because “there was more investigation that needed to be

done.” For this reason, she testified, Burton asked her “what

he could do.” She did not know what to do, so she called Jeff

Brodey, a lawyer.

Kleinbauer wrote down what Brodey told her, and her

notes are in the record. These notes are valuable, because

they provide hard proof that verifies Burton’s and

Kleinbauer’s statements that Burton complained to

Kleinbauer about Slick. The notes tell Burton to demand to

be heard on the record, tell him that he has a constitutional

right to represent himself under a case called Faretta, and tell

him not to accept Slick as co-counsel because he has a

“conflict of interest” with Slick and wants his attorney

removed.

In sum, the trial court transcript and the evidence at the

reference hearing demonstrate, in the words of the district

court, “that [Burton] wanted to be free from having Mr. Slick

as his attorney, and that he had a compelling basis for that

desire.” The district court thus did not clearly err in finding

that Burton’s Faretta requests were made for legitimate

reasons.

According due deference to the district court’s factual

findings, we affirm the district court’s conclusion that

Burton’s Faretta requests were timely as a matter of law. 

Maxwell, 673 F.2d at 1036. Because “[a]n improper denial of

a request to proceed pro se . . . is not amenable to harmless

error analysis,” the Sixth Amendment requires that Burton

receive a new trial. United States v. Maness, 566 F.3d 894,
BURTON V. DAVIS 63

896 (9th Cir. 2009) (per curiam) (internal quotation marks

omitted).

VI

Under our precedents, there is little question that the

California Supreme Court’s 1989 decision in Burton’s case

was contrary to federal law. The California Supreme Court

expressly declined to apply the purpose-to-delay inquiry we

announced in Fritz, and we have held that Fritz is binding

federal law for purposes of former § 2254. See, e.g., Moore,

108 F.3d at 264.

The more difficult question here is whether the district

court was bound by the California Supreme Court’s finding,

seventeen years later and in the context of a different claim,

that Burton’s lawyer had reason to believe Burton was

motivated by delay. We hold that the district court was not

bound by this finding. The California Supreme Court never

made a finding on Burton’s actual motives and, even if it had,

it improperly shifted the burden of proof to Burton, applied

the wrong legal inquiry, and failed to consider evidence that

was highly relevant to the correct inquiry. Under these

circumstances, we cannot say that Burton received a full, fair,

and adequate hearing on his Faretta claim.

We accordingly affirm the district court’s determination

that Burton’s Faretta motion was timely and that his

conviction and sentence must be set aside. The State shall,

within the time prescribed by the district court, either release

Burton or grant him a new trial.

AFFIRMED.
64 BURTON V. DAVIS

O’SCANNLAIN, Circuit Judge, dissenting:

The Court affirms the grant of a petition for writ of

habeas corpus in this death penalty case by holding that the

California courts did not determine—in a full, fair, and

adequate hearing—the merits of Andre Burton’s request for

self-representation during his murder trial. I respectfully

disagree because I am not persuaded that the California

Supreme Court decision was contrary to the Constitution and

laws of the United States. Rather, under the version of

28 U.S.C. § 2254 applicable before the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), habeas corpus should have been denied.

I

A

On February 25, 1983, during a robbery, Burton shot

Anwar Khwaja in the forehead and in the eye, then shot

Khwaja’s mother, fatally, in the chest. California v. Burton,

771 P.2d 1270, 1274 (Cal. 1989). Burton was “smiling or

laughing contentedly” while committing these crimes and

“chuckled” while escaping. Id.

Beginning on August 10, 1983, the day trial was set to

start, Burton made four requests to represent himself pursuant

to Faretta v. California, 422 U.S. 806 (1975).1See In re

1 Faretta established that “a defendant in a state criminal trial has a

constitutional right to proceed without counsel when he voluntarily and

intelligently elects to do so.” 422 U.S. at 807. Subsequently, both the

Ninth Circuit and the California Supreme Court held that the invocation
BURTON V. DAVIS 65

Burton, 147 P.3d 1014, 1024–25 (Cal. 2006). The trial court

denied each of those four Faretta requests as untimely. See

id. The jury convicted Burton of murder and three counts of

robbery, and the penalty was fixed at death. Id. at 1017.

After the California Supreme Court affirmed Burton’s

convictions and death sentence, Burton, 771 P.2d at 1291,

Burton filed state and federal habeas petitions. In state

habeas proceedings, Burton alleged that he was denied the

right to present a guilt-phase defense under California v.

Frierson, 705 P.2d 396 (Cal. 1985).2 To evaluate Burton’s

Frierson claim, the California Supreme Court appointed a

referee to hear evidence and to make findings of fact in

response to various questions, including: “Did [Burton’s

attorney, Ronald Slick] have reason to believe that

petitioner’s in court requests to represent himself were made

for the purpose of delaying trial, rather than dissatisfaction

with Slick’s trial strategy?” Burton, 147 P.3d at 1018.

The referee, a superior court judge appointed for this task,

heard testimony from 15 witnesses over 14 court days. See

id. at 1016, 1019. As part of his findings of fact, the referee

concluded that Burton “tried to delay the [trial] by seeking to

represent himself.” In 2006, the California Supreme Court

reviewed the referee’s report, accepted the referee’s factual

finding that Burton’s Faretta motions “reflected a

of that right must be timely. See Maxwell v. Sumner, 673 F.2d 1031, 1036

(9th Cir. 1982); California v. Windham, 560 P.2d 1187, 1191 (Cal. 1977).

2 Frierson established that, “[g]iven the magnitude of the consequences

that flowed from the decision whether or not to present any defense at the

guilt/special circumstance phase, . . . counsel could [not] properly refuse

to honor defendant’s clearly expressed desire to present a defense at that

stage.” Frierson, 705 P.2d at 403 & n.4 (relying in part on Faretta).
66 BURTON V. DAVIS

dissatisfaction with Slick’s failure to delay the trial,” and

denied habeas relief. Id. at 1026, 1030.

In federal habeas proceedings, the district court reviewed

the state court record de novo and granted the writ, holding,

contrary to the California Supreme Court, that Burton’s

request to represent himself was not made for the purpose of

delay.

B

Whether a petitioner’s request to exercise his right under

Faretta to represent himself at trial is timely is controlled by

Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982). In Fritz, we

held that “a motion to proceed pro se is timely if made before

the jury is empaneled, unless it is shown to be a tactic to

secure delay.” Id. at 784.3

As the majority observed, the district court erred when it

treated the determination of Burton’s purpose in seeking to

represent himself as a mixed question of law and fact. Maj.

Op. at 33–34. Burton’s purpose is simply a question of fact,

and the district court owed deference to the state court

3 The majority concludes that any pro se representation request is timely,

regardless of whether the defendant had a purpose of delay, as long as

some other permissible purpose for the defendant’s motion can be found. 

It claims that Fritz “asks whether the defendant’s actual and sole purpose

was to delay.” Maj. Op. at 41. But Fritz says nothing about the

defendant’s “sole” purpose. Instead, Fritz employs several formulations

to describe the relevant inquiry: a motion is timely unless it is “a tactic to

secure delay,” “unless it was made for the purpose of delay,” or “absent

an affirmative showing of purpose to secure delay.” 682 F.2d at 784. 

Clearly, delay must be a purpose of a Faretta motion to make it untimely,

but Fritz does not require delay to be the “sole” purpose.
BURTON V. DAVIS 67

determination of fact unless an exception enumerated in

§ 2254 applies. But then the majority errs when it upholds de

novo review based on its conclusion that the California

Supreme Court did not resolve the merits of the factual

question, see § 2254(d)(1), and that Burton was therefore

denied a full, fair, and adequate state court hearing, see

§ 2254(d)(2), (6).4 Maj. Op. at 33.

Applying § 2254(d)(1), the majority essentially concludes

that the state courts did not make findings of fact regarding

Burton’s purpose because the California Supreme Court

4 Pre-AEDPA 28 U.S.C. § 2254(d) (1994) provided that, in federal

habeas proceedings initiated by a state prisoner,

[A] determination after a hearing on the merits of a

factual issue, made by a State court of competent

jurisdiction in a proceeding to which the applicant for

the writ and the State or an officer or agent thereof were

parties, evidenced by a written finding, written opinion,

or other reliable and adequate written indicia, shall be

presumed to be correct, unless the applicant shall

establish or it shall otherwise appear, or the respondent

shall admit—

(1) that the merits of the factual dispute were not

resolved in the State court hearing;

(2) that the factfinding procedure employed by the State

court was not adequate to afford a full and fair hearing;

. . .

(6) that the applicant did not receive a full, fair, and

adequate hearing in the State court proceeding; . . . .

[T]he burden shall rest upon the applicant to establish

by convincing evidence that the factual determination

by the State court was erroneous.
68 BURTON V. DAVIS

asked the referee to determine Slick’s belief about Burton’s

purpose rather than asking about Burton’s purpose directly. 

Recognizing that the California Supreme Court did make

some potentially relevant findings, the majority seeks to

explain away those findings by arguing that they must be

considered “in context.” The majority thus concludes that the

state supreme court did not give a Faretta answer because it

asked a Frierson question.

Applying § 2254(d)(2), (6), the majority concludes that

the Frierson proceedings were inadequate to resolve Burton’s

Faretta claim fully and fairly because the state courts

misallocated the burden of proof and because they failed to

consider key aspects of the record and to apply the proper

legal inquiry.

I respectfully disagree with the majority’s application of

these three provisions.

II

A

Contrary to the majority’s opinion, the California courts

did indeed determine the merits of Burton’s purpose 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 by the California

Supreme Court, the majority mistakenly focuses on the

context in which those facts were found.

The majority’s analysis misses the trees for the forest.
BURTON V. DAVIS 69

1

What did the California Supreme Court actuallyhold with

respect to the factual findings made in Burton’s state habeas

proceedings? There, Burton invoked “statements he made at

trial in the course of his four motions for self-representation.” 

In re Burton, 147 P.3d 1014, 1024 (Cal. 2006). In response

to Burton’s arguments, the court did not solely determine

counsel Slick’s impression of Burton’s purpose in invoking

Faretta; it also directly determined Burton’s actual purpose.

The California Supreme Court addressed both Slick’s

impression and Burton’s actual purpose in three key

paragraphs. The court first recognized that “the referee found

[that] Burton invoked and continued to invoke Faretta solely

in order to delay the trial.” Id. at 1026. It then discussed

Slick’s testimony regarding his belief that Burton’s purpose

was delay:

According to Slick, Burton consistently said

on multiple occasions that he was not ready to

go to trial, but never offered Slick a reason for

a delay. In Slick’s experience, it is not

unusual for defendants to prefer to delay trial

and to give the appearance of being able to

“wait it out,” and he believed that Burton,

who was facing a capital trial, was such a

defendant. Burton thus errs in contending that

“the only reasonable inference to be drawn”

from his Faretta motions is that he “wanted to

defend against the state’s case.”

Id. Thus, the first sentence of this paragraph indicates that

the referee found Burton invoked Faretta solely in order to
70 BURTON V. DAVIS

delay trial, while the remaining sentences address Slick’s

impression.

In the second paragraph, the California Supreme Court

discusses other evidence that “corroborates” Slick’s

assessment that Burton’s purpose was delay:

Slick’s assessment of Burton’s motivation

was corroborated by other evidence at the

hearing. Kleinbauer testified that Burton had

told her he was not ready to go to trial and

that he was dissatisfied with Slick because

“the trial seemed to be . . . rushing forward.” 

As a result, Kleinbauer had consulted with

another lawyer, Jeffrey Brodey, who had

recommended that Burton invoke his right to

self-representation if he was not ready for trial

and that he not settle for cocounsel status. 

Tellingly, Kleinbauer’s notes of this

conversation nowhere mention Burton’s

alleged desire to present a defense but say

instead “tell Ron he’s not ready for trial. July

25 too soon—next year some time.” 

Kleinbauer further stated in a 1993 declaration

that she had instructed Burton to tell Slick

“that he was not ready for trial, and that the

trial should take place next year some time,

after all the investigation was done.” 

Kleinbauer herself also felt the case “went to

trial maybe sooner than it should have.”

Id. Of particular note, I can think of no better example of “a

tactic to secure delay” than an attorney’s recommendation

that a criminal defendant in a capital murder case “invoke his
BURTON V. DAVIS 71

right to self-representation if he was not ready for trial and

that he not settle for cocounsel status.” While this paragraph

may go no further than determining that Slick’s assessment

of Burton’s purpose was corroborated, it does so by pointing

to evidence suggesting that Slick’s assessment was correct,

i.e., that Burton’s actual purpose was delay.

Even if these first two paragraphs address Slick’s

impression of Burton’s purpose, the third paragraph very

clearly adopts factual findings about Burton’s actual purpose:

Burton’s conduct and statements further

confirmed his interest in delay. Burton

engaged in “game playing” with Dr. Michael

Maloney, who had been retained by Slick to

conduct a psychological evaluation of Burton.

This lack of cooperation is fully consistent

with a defendant who was interested in delay

for delay’s sake—a conclusion additionally

supported by Burton’s observation in his

declaration in support of his motion for new

trial that “[i]n my experience in the Los

Angeles County Jail, persons with death

penalty cases all tended to have their cases

continued for longer periods of time.” Finally,

we note that even the trial court seemed aware

of Burton’s motivation, advising him during

the second Faretta motion hearing “that the

trial is going to go ahead. [¶] I know you

don’t like the idea, but that’s the idea.” We

therefore accept the referee’s finding that

Burton’s Faretta motions reflected a

dissatisfaction with Slick’s failure to delay the
72 BURTON V. DAVIS

trial, not a dissatisfaction with Slick’s trial

strategy.

Id. (alteration in original).

In sum, the California Supreme Court first recognized that

“the referee found [that] Burton invoked and continued to

invoke Faretta solely in order to delay the trial.” Id. After

discussing Slick’s impression of Burton’s purpose, the state

supreme court moved beyond Slick’s impression to the actual

purpose, and it determined that “Burton’s conduct and

statements further confirmed his interest in delay.” Id. As

support for that determination, it reasoned that the

“conclusion” that Burton was “a defendant who was

interested in delay for delay’s sake” was “supported by

Burton’s observation in his declaration in support of his

motion for new trial” and was “fully consistent with”

Burton’s engaging in “game playing” with a psychologist

hired by Slick to evaluate Burton. Id. Ultimately, the

California Supreme Court “accept[ed] the referee’s finding

that Burton’s Faretta motions reflected a dissatisfaction with

Slick’s failure to delay the trial, not a dissatisfaction with

Slick’s trial strategy.” Id.

The referee’s factual findings, as accepted by the state

supreme court, squarely address the merits of Burton’s

purpose in invoking Faretta, and they deserve deference. If

we take the California Supreme Court at face value, we are

left with the clear determination that Burton’s purpose in

making his motion was to delay trial.
BURTON V. DAVIS 73

2

The majority simply ignores the California Supreme

Court’s accepted factual findings. Nowhere does it

acknowledge the California Supreme Court’s recognition that

“the referee found [that] Burton invoked and continued to

invoke Faretta solely in order to delay the trial.” Id. Nor

does it ever grapple with the finding that “Burton’s conduct

and statements further confirmed his interest in delay.” Id.

To the extent that it does engage with the actual language

of the California Supreme Court opinion, the majority

regrettablymisconstrues it. For example, the majority argues

that the state court’s statements about Burton’s “game

playing” and his observation about the typical length of

continuances for death penalty cases “must be read in

context.” Maj. Op. at 37. Those statements were made in a

paragraph that begins with “Burton’s conduct and statements

further confirmed his interest in delay” and concludes with

“We therefore accept the referee’s finding that Burton’s

Farettamotions reflected a dissatisfaction with Slick’s failure

to delay the trial, not a dissatisfaction with Slick’s trial

strategy.” Burton, 147 P.3d at 1026. In context, the state

supreme court was clearlyidentifying evidence that supported

these two propositions, which are directly concerned with

Burton’s actual purpose.

Despite its exhortation, the majority prefers to read the

statements completely out of context. The majority claims

that the state court “was identifying evidence that

‘corroborated’ ‘Slick’s assessment of Burton’s motivation,’

which arguably refuted Burton’s argument that ‘the only

reasonable inference to be drawn from his Faretta motions

[wa]s that he wanted to defend against the state’s case.’” 
74 BURTON V. DAVIS

Maj. Op. at 37–38. Yet these propositions—that “Slick’s

assessment of Burton’s motivation was corroborated” and

that Burton erred “in contending that ‘the only reasonable

inference to be drawn’ from his Faretta motions [was] that he

‘wanted to defend against the state’s case’”—were contained

in completely separate paragraphs from the statements about

Burton’s “game playing” and his observation about the

typical length of continuances. See Burton, 147 P.3d at 1026. 

When making the statements about “game playing” and

Burton’s observation, the California Supreme Court had

clearly moved from discussing Slick’s impression to

discussing Burton’s actual purpose.

The majority also ignores another important contextual

clue that the California Supreme Court did directly address

Burton’s purpose: the issue of his actual purpose was a

disputed factual question raised by the Frierson claim before

the California Supreme Court appointed the referee. 

Specifically, Burton first placed his actual purpose at issue

when he claimed in his state habeas petition that he “had

sought on four occasions during the trial to discharge his

attorney and represent himself because of Attorney Slick’s

deficiencies.” Id. at 1017. The State responded that “the true

reason Burton had asked the trial court four times to be

allowed to represent himself ‘was to obtain a continuance to

avoid going to trial, not because he wanted further

investigation conducted,’” id. at 1017–18, which Burton

denied in reply, id. at 1018. This factual dispute existed

before the reference hearing, so it is not surprising that the

referee and the California Supreme Court wound up

addressing Burton’s true purpose in seeking to represent

himself.
BURTON V. DAVIS 75

Thus, the majority’s attempt to explain away the

California Supreme Court’s findings concerning Burton’s

purpose—not merelySlick’s impression of such purpose—by

arguing they must be read “in context,” falls flat. It is clear

that the California Supreme Court determined Burton’s

purpose in invoking Faretta, and that purpose was delay for

delay’s sake.

B

And the California courts indeed afforded Burton a full,

fair, and adequate hearing in determining his purpose in

seeking self-representation.

1

Recall that Burton’s motivation for invoking Faretta was

a contested factual issue before the reference hearing, and

Burton submitted evidence regarding that issue. In addition,

Burton was aware that the California Supreme Court asked

the referee to determine a closely related question: whether

Slick had reason to believe that Burton invoked Faretta in

order to delay trial. Of course, if Burton’s actual purpose was

delay, then that fact makes it much more probable that Slick

had reason to believe that Burton’s purpose was delay. Thus,

it should have been no surprise when the California courts

found a subsidiary fact—that Burton’s actual purpose was

delay—as support for another finding of fact—that Slick had

reason to believe Burton’s actual purpose was delay. Burton

was not deprived of a full, fair, and adequate hearing merely

because the California Supreme Court declined to specify

every question that might possibly be answered in the

reference hearing.
76 BURTON V. DAVIS

2

None of the majority’s reasons are persuasive.

First, the state courts did not deprive Burton of a full, fair,

and adequate hearing by misallocating the burden of proof. 

We have never held that the burden of proof in a Fritz inquiry

is on the state or 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 reason alone not to apply

the presumption of correctness” and that it would be

“manifestly unfair” to bind Burton to an adverse factual

determination made in proceedings in which he bore the

burden of proof. Maj. Op. at 44–45.

Moreover, with respect to Burton’s purpose in seeking to

represent himself, there is no indication that the burden of

proof played any role in the state habeas proceedings or that

the State received the benefit of the doubt. In those

proceedings, nowhere did the referee or the California

Supreme Court say that Burton failed to carry his burden with

respect to his Faretta motions. The state courts did not

deprive Burton of a full, fair, and adequate hearing on his

motivation for invoking Faretta by weighing the evidence

and deciding against him.

3

Nor did the state courts deprive Burton of a full, fair, and

adequate hearing by failing to apply the proper legal test or to

consider key parts of the record. Ultimately, these asserted

errors are not errors at all. In Early v. Packer, 537 U.S. 3

(2002) (per curiam), a California appellate court upheld the

trial court’s giving a charge to a deadlocked jury under a
BURTON V. DAVIS 77

state-law rule that differed from the federal rule. Id. at 6–7. 

We had concluded that the California appellate court erred in

failing to apply a totality of the circumstances test and to

consider key pieces of evidence:

[T]he Ninth Circuit charged that the Court of

Appeal “failed to apply the totality of the

circumstances test as required byLowenfield.”

That was so, the Ninth Circuit concluded,

because it “simply mentioned three particular

incidents in its analysis,” “failed to consider”

other “critical facts,” and “failed to consider

the cumulative impact” of all the significant

facts, one of which it “[did] not even mention

in its analysis.” 

Id. at 8–9 (internal alterations and citation omitted). The

Supreme Court noted that the state court had focused on three

particular incidents, but set forth many facts and

circumstances beyond those three incidents. Id. at 9. The

Court rejected our conclusion that the state court failed to

apply the totality of the circumstances test by not considering

certain facts:

The contention that the California court

“failed to consider” facts and circumstances

that it had taken the trouble to recite strains

credulity. The Ninth Circuit may be of the

view that the Court of Appeal did not give

certain facts and circumstances adequate

weight (and hence adequate discussion); but

to say that it did not consider them is an

exaggeration. There is, moreover, nothing to

support the Ninth Circuit’s claim that the
78 BURTON V. DAVIS

Court of Appeal did not consider the

“cumulative impact” of all the recorded

events. Compliance with Lowenfield . . . does

not demand a formulary statement that the

trial court’s actions and inactions were

noncoercive “individually and cumulatively.”

It suffices that that was the fair import of the

Court of Appeal's opinion.

Id.5

Here, the majority asserts that the California Supreme

Court failed to apply a “totality of the circumstances” test. 

Maj. Op. at 45. Like in Early, the state court’s lack of a

formulary statement that it was applying the Fritz factors

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 factors. Moreover, the majority asserts that the

California Supreme Court failed to consider various pieces of

evidence that it expressly 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 hearing was full, fair, and

adequate, and the presumption of correctness should apply.

6

5 Although Early is admittedly a case governed by AEDPA, the Court

made no indication that this part of its analysis was impacted in any way

by AEDPA’s amendments. Consequently, the principles can be applied

to this pre-AEDPA case.

6 Given the majority’s conclusion that the state courts did not resolve the

factual dispute on the merits and that Burton was denied a full, fair, and

adequate state court hearing, the majority should not be affirming but
BURTON V. DAVIS 79

rather vacating and remanding for an evidentiary hearing in the district

court. Under pre-AEDPA habeas law:

An evidentiary hearing in federal habeas proceedings is

required (1) where the merits of a factual dispute were

not resolved in state hearings . . . (3) the state’s factfinding procedure was not adequate to afford a full and

fair hearing; . . . (5) material facts were not adequately

developed at the state court hearing, for which there is

no cause or prejudice; or (6) for any reason it appears

that the state trier of fact did not afford the applicant a

full and fair hearing on the facts.

Rhoades v. Henry, 638 F.3d 1027, 1041 n.13 (9th Cir. 2011) (citing

Townsend v. Sain, 372 U.S. 293, 312–13 (1963); Keeney v. TamayoReyes, 504 U.S. 1, 8–11, (1992) (modifying Townsend’s fifth factor)); see

also Ford v. Wainwright, 477 U.S. 399, 410–11 (1986). The Townsend

criteria are the same as the exceptions in §§ 2254(d)(1), (2), (3), (6). 

Brewer v. Williams, 430 U.S. 387, 395 (1977). Therefore, the majority’s

conclusion that the presumption of correctness does not apply because of

the exceptions in subsections (1), (2), and (6) also compels the conclusion

that an evidentiary hearing is required.

An evidentiary hearing is especially appropriate when the federal

district court rejects the state court’s key credibility determinations. 

“[Section] 2254(d) gives federal habeas courts no license to redetermine

credibility of witnesses whose demeanor has been observed by the state

trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434

(1983). Here, the district court, on the basis of a cold documentary record,

rejected the California Supreme Court’s acceptance of the referee’s

credibility determinations, which were based on live observation of the

witnesses’ demeanors.

The “reexamination of state convictions that the modern writ entails

implicates values of finality and comity that are important to federalism

and our system of criminal justice.” Gage v. Chappell, 793 F.3d 1159,

1167 (9th Cir. 2015) (citing Coleman v. Thompson, 501 U.S. 722, 731

(1991); McCleskey v. Zant, 499 U.S. 467, 491 (1991); Kuhlmann v.

Wilson, 477 U.S. 436, 453 n. 16 (1986)). Given these important concerns
80 BURTON V. DAVIS

III

For the foregoing reasons, I respectfully dissent.

and the rejection of several key state-court credibility determinations,

shouldn’t the district court at least observe live witnesses itself before

forcing the state to retry a 32-year-old capital murder case?