Burton v. Davis
| Decision Date | 10 March 2016 |
| Docket Number | No. 13–55328.,13–55328. |
| Citation | 816 F.3d 1132 |
| Parties | Andre BURTON, Petitioner–Appellee, v. Ron DAVIS, Warden, California State Prison at San Quentin, Respondent–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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, CA, for Respondent–Appellant.
Marcia A. Morrissey (argued), Santa Monica, CA; Lisa M. Romo, Berkeley, CA, for Petitioner–Appellee.
Before: DIARMUID F. O'SCANNLAIN, JOHNNIE B. RAWLINSON, and JAY S. BYBEE, Circuit Judges.
Opinion by Judge BYBEE
OPINION
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, 95 S.Ct. 2525, 45 L.Ed.2d 562 (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 contrary to federal law, and we affirm the district court's grant of the writ.
This case comes before us some thirty-two years after Burton was tried. During those years, Burton filed a direct 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.
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 co-defendant, 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 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.
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, 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 by Clements, his alleged coconspirator, and that he wanted to investigate his case because "Ron [Slick] is 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 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:
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.
Burton pursued an appeal to the California Supreme Court, and the California Supreme Court affirmed the judgment in its entirety. See People v. Burton, 48 Cal.3d 843, 258 Cal.Rptr. 184, 771 P.2d 1270 (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 (). 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 (c...
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