United States District Court, N.D. California
ORDER RE PETITION FOR WRIT OF HABEAS CORPUS RE: DKT.
DONATO UNITED STATES DISTRICT JUDGE
Carlos Romero Burnett is a California state prisoner who
seeks federal habeas relief under 28 U.S.C. § 2254. Dkt.
No. 1. He was convicted of possessing a weapon in custody
while serving a prior life sentence for murder. Because of
strikes under California law for previous convictions, he was
sentenced to 25 years to life in prison to be served
consecutively to the life sentence.
petition, Burnett raises the single claim that he was
convicted in violation of his right to self-representation
under the Sixth Amendment as interpreted in Faretta v.
California, 422 U.S. 806 (1975). On appeal, the
California Court of Appeal rejected this argument and
affirmed the conviction.
is no doubt that Burnett was at times a fractious defendant
who posed some challenges to the trial court. He cycled
through a few attorneys who he believed were not adequately
representing him, and made unrealistic demands for discovery.
But the record shows that Burnett made a clear, unequivocal
and timely assertion of his right to self-representation
three months before trial. The trial court was wrong to deny
the request, and the affirmance by the court of appeal was
contrary to clearly established federal law as determined by
the Supreme Court of the United States. Consequently, the
petition is granted and the matter is remanded for further
proceedings consistent with this order.
record, which the court of appeal summarized in People v.
Burnett, No. H042861, 2017 WL 25499 (Cal.Ct.App. Jan. 3,
2017), reh'g denied (Jan. 24, 2017), review
denied (Mar. 22, 2017) (unpublished), Dkt. No. 11, Ex.
6, is straightforward and undisputed by the parties. Burnett
is serving a life sentence at Salinas Valley State Prison for
first-degree murder and attempted murder. In August 2011, he
was caught trying to enter another unit at the prison with an
“inmate-manufactured weapon” consisting of a
“three-inch long hard piece of plastic with a sharp
point.” Id. at *1. Burnett admitted possessing
the plastic object but claimed that “he intended to use
it as a screwdriver” in the course of his prison job
doing janitorial and maintenance work. Id.
was charged by an information with possession of a weapon in
a penal institution under California Penal Code Section
4502(a). The information also alleged that Burnett's
prior convictions for murder and attempted murder qualified
as “two strikes” under California Penal Code
made an initial appearance in the trial court on May 22,
2012, with appointed counsel. About one week after that, on
May 30, 2012, Burnett asked for a new lawyer on the grounds
that the appointed one had not advised him correctly about
his potentially long sentence in light of the two strikes.
The trial court denied the request.
December 2012, Burnett again asked for a new lawyer based on
his dissatisfaction with the preparation of his defense. This
request was denied and the case was called for trial on July
29, 2013. On that date, Burnett made a motion to represent
himself. The trial court granted this motion, and terminated
his lawyer's services.
who was now acting pro se, filed a flurry of discovery and
other motions, which were largely denied. In the course of a
trial setting conference on November 6, 2013, Burnett said he
no longer wanted to represent himself and asked for a new
lawyer. The trial court granted the request and appointed
further trial setting conference on January 8, 2014, Burnett
again asked to proceed on his own without an attorney.
Burnett said his appointed lawyer had not been in touch with
him for two months and that Burnett did not know what the
lawyer had planned for his defense. Hearing Transcript, Dkt.
No. 11-3 at 302:16-20. The trial court asked if he wanted a
new lawyer. Burnett said, “No. I want to represent
myself.” Id. at 302:27. The trial court
pointed out that he tried that before and then withdrew the
request. Burnett said he had withdrawn it because an
investigator working on his case had urged him to “drop
your pro per so there can be a proper mental capacity
defense.” Id. at 303:14-16. It appears that
Burnett initially followed this advice but later changed his
mind. Id. In any event, the transcript indicates
that Burnett's main concern was dissatisfaction with his
trial court had a detailed exchange with Burnett about
self-representation. The court highlighted the risks of
proceeding without an attorney, the disadvantages Burnett
would face in court against a seasoned prosecutor, the fact
that Burnett would not get any indulgences or coaching from
the court because he was pro se, and that self-representation
was, overall, a bad idea. See generally Dkt. No.
11-3. The trial court repeatedly tested Burnett's
understanding of these and similar dangers, and his
commitment to stick with self-representation. Burnett
acknowledged all of the potential downsides identified by the
court, and clearly and consistently expressed his desire to
represent himself because he had no confidence in the lawyers
assigned to defend him. Throughout the colloquy, Burnett
articulated his lack of confidence in the appointed lawyers
and said “I want to represent myself”
(id. at 302:27), “I'm not saying it's
going to be easy, but I'd rather -- I could trust
myself” (id. at 305:26-27), “I need
effective counsel. I need somebody who is going to fight for
me” (id. at 315:4-5), and “I'd
rather trust myself. I don't want to be in limbo”
(id. at 305:2-3).
trial court denied the request. It expressed concern that
Burnett was “gaming the system” and
“playing this Court.” Id. at 314:7-16.
The court asked Burnett if he could “announce ready for
trial in three months.” Id. at 315:21-22.
Burnett said he could not because he wanted an investigator
to pursue some “evidence, ” among other steps.
Id. at 315:23-316:2. The trial court said that
Burnett was “purposely trying to essentially make a
mockery of the judicial process in this case” and was
“not seeking to represent himself[, ] to actually
represent himself, but merely to delay the process.”
Id. at 316:38-317:11. The trial court did not
relieve Burnett's attorney of further representation
after denying the Faretta request.
trial was continued from April 7 to April 23, 2014, at which
time Burnett made a motion for new counsel. Burnett,
2017 WL 25499, at *3. The motion was denied. Id. For
reasons not identified by the court of appeal and not readily
apparent from the record, Burnett's trial did not start
until June 15, 2015. Id. As these undisputed facts
establish, Burnett made his Faretta request just
over 15 weeks before the ...