Burton v. Davis

A motion to proceed pro se is timely if it is made before the jury is established and there is no evidence that it is a tactic to secure delay.

Andre Burton was convicted of robbery and murder, and received the death sentence. Ronald Slick was appointed to represent Burton, but Burton was unsatisfied with Slick’s representation, asserting that Slick never interviewed or visited Burton before the trial, never interviewed key witnesses for the defense, and provided feeble cross examination of the prosecution’s witnesses. Thus, twice before trial and another two times during trial, Burton tried to dismiss Slick and invoke his constitutional right under Faretta v. California to represent himself. All four times the trial judge denied Burton’s request because Burton was not prepared to represent himself at the time of the request and continuance was not available. Burton filed his original petition for a writ of habeas corpus in the federal district court, which was stayed pending Burton’s exhaustion of all available state remedies. Subsequently, the trial court ordered a referee to hold an evidentiary hearing to determine whether Burton’s purpose in seeking to represent himself was merely to delay his trial: the referee determined that it was. On a direct appeal, the California Supreme Court affirmed the trial court. Burton later amended his original federal habeas petition and the federal district court granted his writ. The district court held that Burton’s request was not for dilatory purposes, Burton’s attorney “did not take even the most de minimis steps” to represent Burton, and Burton’s Faretta request was timely and should have been granted. The State appealed. The Ninth Circuit concluded that the California Supreme Court improperly applied its own precedent instead of federal law in making its decision. The panel concluded that Burton did not receive “a full, fair, and adequate hearing on his Faretta claim,” and thus affirmed the federal district court’s grant of the writ. AFFIRMED.