In re Barnett

• Citation: 31 Cal.4th 466,3 Cal.Rptr.3d 108,73 P.3d 1106
• Decision Date: 07 August 2003
• Docket Number: No. S096831.,S096831.
• Parties: In re Lee Max BARNETT on Habeas Corpus.
• Court: United States State Supreme Court (California)

3 Cal.Rptr.3d 108

73 P.3d 1106

31 Cal.4th 466

In re Lee Max BARNETT on Habeas Corpus.

No. S096831.

Supreme Court of California.

August 7, 2003.

Rehearing Denied September 24, 2003.

Robert D. Bacon, Oakland, under appointment by the Supreme Court, for Petitioner Lee Max Barnett.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Carlos A. Martinez, Ward A. Campbell, Jean M. Marinovich, Ruth M. Saavedra and Eric L. Christoffersen, Deputy Attorneys General, for Respondent State of California.

BAXTER, J.

Petitioner Lee Max Barnett is being held in custody pursuant to a judgment of death rendered on November 30, 1988. Petitioner is represented by appointed counsel in this state habeas corpus proceeding challenging the legality of that judgment. Despite such representation, petitioner has submitted a number of pro se habeas corpus claims, motions, and other documents to this court for filing and consideration. Because this court has begun to receive a number of pro se submissions in capital habeas corpus matters, and because our actions thereon have at times varied, we find it appropriate to announce a standard procedure for such submissions.

Consistent with the general rule that represented parties have no right to present their cases personally alongside counsel—a principle we have recognized in the context of both capital trials and appeals, and noncapital habeas corpus proceedings as well—this court will not file or consider a represented capital inmate's pro se submissions that challenge the legality of the inmate's death judgment or otherwise fall within the scope of counsel's representation. Conversely, we shall file and consider a represented capital inmate's pro se submissions that pertain to matters falling outside the scope of counsel's representation. We shall also file and consider pro se motions limited to matters concerning the inmate's representation. (See People v. Marsden (1970) 2 Cal.3d 118, 84 Cal. Rptr. 156, 465 P.2d 44 (Marsden) [motion to substitute counsel].)

I.

The facts underlying petitioner's convictions are not pertinent to the procedural matter presented here. It suffices to note that a jury convicted petitioner in 1988 of one count of assault with a firearm, several counts of kidnapping and robbery, and one count of first degree murder. Petitioner committed his crimes upon encountering the victims unexpectedly in 1986 at a remote campsite in a Butte County gold mining area. The evidence at trial included testimony from persons present at the encounter, including petitioner, and from others who had contact with petitioner the summer before the crimes occurred or immediately afterward.

The relevant procedural facts are as follows. Appointed counsel Michael Willemsen and Ronald A. Parravano represented petitioner in his automatic appeal and concurrent state habeas corpus proceeding (judgment of death affirmed May 4, 1998, in People v. Barnett (1998) 17 Cal.4th 1044, 74 Cal.Rptr.2d 121, 954 P.2d 384; concurrent habeas corpus petition denied Nov. 17, 1999). On July 12, 2000, we granted the request of Willemsen and Parravano to withdraw from all further representation. We also appointed Robert D. Bacon, who currently represents petitioner in federal postaffirmance capital-related habeas corpus proceedings, to represent petitioner through the remaining state habeas corpus and executive clemency proceedings in this matter until the judgment is reversed or until petitioner's death.

On April 5, 2001, Bacon filed in this court a 560-page second petition for writ of habeas corpus that challenges the legality of petitioner's death judgment. That petition, which attaches 20 volumes of appendices, is pending.

Beginning in November 2001, petitioner has submitted the following pro se documents to this court for our consideration: (1) a "Declaration and Motion to Supplement Habeas Corpus" in In re Barnett (S096831, Apr. 5, 2001) (received Nov. 2, 2001); (2) a document containing pro se habeas corpus claims No. 275 and 276 (received Nov. 19, 2001); (3) a "Declaration of Lee Max Barnett" and a "Declaration and Motion and Objections to Respondent's Request for Extension of Time, Motion for Summary Judgement" (received Nov. 21, 2001); (4) a letter referring to an alleged misleading statement of fact in Appellant's Opening Brief and the court's opinion in People v. Barnett, supra, 17 Cal.4th 1044, 74 Cal.Rptr .2d 121, 954 P.2d 384 (received Nov. 27, 2001); (5) a document containing pro se "Supplemental Habeas Claim # 278" (received Dec. 7, 2001); (6) a document entitled "Impediments to Filing preAEDPA & Entitlement to preAEDPA Standards on Review" (received Jan. 9, 2002); (7) a petition for writ of habeas corpus that complains both of "prison conditions impeding & obstructing habeas" and of denial of petitioner's rights to a speedy trial and a speedy appeal (received Mar. 6, 2002); and (8) a petition for writ of habeas corpus that complains the superior court erred in denying a petition for writ of habeas corpus filed on August 28, 2001 in Marin County Superior Court, No. SC 120773 (received Apr. 2, 2002).

The foregoing documents do not criticize Bacon's effectiveness and do not seek his removal. While the last two documents complain primarily of prison conditions, the others largely purport to present, as habeas corpus claims, various assignments of trial court and appellate error, prosecutorial misconduct, and ineffectiveness of all prior appointed counsel. To this day, however, Bacon continues to represent petitioner in these state court proceedings, and petitioner has never disavowed the state habeas corpus petition Bacon prepared on his behalf.

In view of the pro se documents petitioner submitted, we issued an order on April 10, 2002, that directed the Director of Corrections to show cause why this court should not file the foregoing documents and consider their merits, notwithstanding the fact that petitioner is currently represented by counsel.¹ (See generally People v. Mattson (1959) 51 Cal.2d 777, 797-798, 336 P.2d 937 (Mattson); People v. Clark

(1992) 3 Cal.4th 41, 173, 10 Cal.Rptr.2d 554, 833 P.2d 561 (Clark); In re Cathey (1961) 55 Cal.2d 679, 684, 12 Cal.Rptr. 762, 361 P.2d 426 (Cathey).) We requested briefing on the following issues: (1) whether and to what extent this court should accept for filing and consideration, from a capital inmate who is represented by counsel, a pro se petition for writ of habeas corpus that challenges the legality of the inmate's death judgment; (2) whether and to what extent this court should accept for filing and consideration, from a represented capital inmate, a pro se petition for writ of habeas corpus that complains of prison conditions; and (3) whether and to what extent this court should accept for filing and consideration, from a represented capital inmate, pro se motions, pro se declarations, and other pro se submissions such as those petitioner submitted here.

Respondent filed a return to the order to show cause. Counsel for petitioner then filed a traverse to respondent's return, and petitioner submitted his own pro se "reply" to the return as well.

II.

As a general rule, parties who are represented in court by counsel of record are required to proceed in court through their counsel. As a prelude to determining the proper disposition of petitioner's pro se submissions, we find it useful to review the rules regarding legal representation and pro se submissions applicable to capital trial and appellate proceedings.

A criminal defendant facing state capital charges has two mutually exclusive rights with respect to legal representation at trial. "He may choose to be represented by professional counsel, or he may knowingly and intelligently elect to assume his own representation." (People v. Hamilton (1989) 48 Cal.3d 1142, 1162, 259 Cal. Rptr. 701, 774 P.2d 730 (Hamilton); see also People v. Bradford (1997) 15 Cal.4th 1229, 1368, 65 Cal.Rptr.2d 145, 939 P.2d 259; People v. Kirkpatrick (1994) 7 Cal.4th 988, 1003, 30 Cal.Rptr.2d 818, 874 P.2d 248.) These are federal constitutional rights that derive from the Sixth Amendment, as made applicable to the states by the Fourteenth Amendment. (Faretta v. California (1975) 422 U.S. 806, 818, 95 S.Ct. 2525, 45 L.Ed.2d 562.)

Significantly, however, a capital defendant who chooses professional representation, rather than self-representation, is not entitled to present his or her case personally or to act as cocounsel at trial.² (People v. Frierson (1991) 53 Cal.3d 730, 741, 280 Cal.Rptr. 440, 808 P.2d 1197; Hamilton, supra, 48 Cal.3d at p. 1162, 259 Cal.Rptr. 701, 774 P.2d 730, and cases cited therein; see also Mattson, supra, 51 Cal.2d at p. 789, 336 P.2d 937.) There are sound reasons for this rule. "Undesirable tactical conflicts, trial delays, and confusion often arise when a defendant who has chosen professional representation shares legal functions with his attorney." (Hamilton, supra, 48 Cal.3d at p. 1162, 259 Cal.Rptr. 701, 774 P.2d 730.)

Accordingly, when a defendant exercises his or her constitutional right to representation by professional counsel, it is counsel who "is in charge of the case" and the defendant "surrenders all but a handful of `fundamental' personal rights to counsel's complete control of defense strategies and tactics." (Hamilton, supra, 48 Cal.3d at p. 1163, 259 Cal.Rptr. 701, 774 P.2d 730.) Although a trial court retains discretion to allow a represented defendant's personal participation, such an arrangement ought be avoided unless the court is convinced, upon a substantial showing, that it will promote justice and judicial efficiency in the particular case. (People v. Frierson, supra, 53 Cal.3d at p. 741, 280 Cal.Rptr. 440, 808 P.2d 1197; Mattson, supra, 51 Cal.2d at p. 797, 336 P.2d 937.) Indeed, it is the trial court's duty "to safeguard and promote the orderly and expeditious conduct of its...