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Burnett v. Asuncion

United States District Court, N.D. California

August 27, 2019




         Petitioner 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.

         In the 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.

         There 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.


         The 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 Jan. 3, 2017), reh'g denied (Jan. 24, 2017), review denied (Mar. 22, 2017) (unpublished), Dkt.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.

         Burnett 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 Section 1170.12(c)(2).

         Burnett 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.

         In 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.

         Burnett, 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 counsel.

         At a 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 appointed attorneys.

         The 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).

         The 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.

         The 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 ...

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