                    FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 ANDRE BURTON,                                   No. 13-55328
                    Petitioner-Appellee,
                                                   D.C. No.
                     v.                         2:91-cv-01652-
                                                    AHM
 RON DAVIS,* Warden, California
 State Prison at San Quentin,
                Respondent-Appellant.              OPINION


        Appeal from the United States District Court
            for the Central District of California
         A. Howard Matz, District Judge, Presiding

                   Argued and Submitted
           August 28, 2014—Pasadena, California

                     Filed March 10, 2016

 Before: Diarmuid F. O’Scannlain, Johnnie B. Rawlinson,
            and Jay S. Bybee, Circuit Judges.

                  Opinion by Judge Bybee;
                Dissent by Judge O’Scannlain




     *
       Ron Davis is substituted for Kevin Chappell as Warden of the
California State Prison at San Quentin. Fed. R. App. P. 43(c)(2).
2                        BURTON V. DAVIS

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s grant of California
state prisoner Andre Burton’s pre-AEDPA habeas corpus
petition challenging his conviction and death sentence for
robbery and murder, in a case in which Burton invoked his
right to represent himself under Faretta v. California, 422
U.S. 806 (1975).

     The panel held that the California courts’ decision to deny
Burton his Faretta rights was not contrary to decisions of the
United States Supreme Court, but that the trial judge’s denial
of the requests on the sole ground that Burton was not ready
for trial and would need a continuance, and the California
Supreme Court’s affirmance of those denials, were contrary
to this court’s decision in Fritz v. Spalding, 682 F.2d 782 (9th
Cir. 1982).

    The panel held that because neither the trial court nor the
California Supreme Court made any finding that Burton’s
requests were a mere delay tactic, it was appropriate for the
district court to determine the timeliness of Burton’s Faretta
motions in the first instance. The panel held that the district
court was not required under former 28 U.S.C. § 2254(d) to
defer to the California Supreme Court’s finding, seventeen
years after its decision on Burton’s direct appeal, that
Burton’s lawyer, Ronald Slick, had reason to believe that
Burton asked to proceed pro se for the purpose of delaying

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      BURTON V. DAVIS                          3

trial, where the postconviction proceedings did not ask
whether Burton intended to delay, only whether Slick thought
that was Burton’s intent. The panel held that the district court
erred when it treated the purpose-to-delay question as a
mixed question of law and fact. But the panel held that the
district court was not required to presume that Burton’s
requests were a mere delay tactic because, under
§ 2254(d)(1), the merits of that factual dispute were not
resolved in the state postconviction hearing and, under
§ 2254(d)(2) and (d)(6), Burton was denied a full, fair, and
adequate state court hearing on the issue.

    The panel held that the district court did not clearly err in
finding that Burton’s Faretta requests were made for
legitimate, not purely dilatory, reasons; and therefore
affirmed the district court’s conclusion that the requests were
timely as a matter of law.

    Dissenting, Judge O’Scannlain wrote that the California
courts did determine the merits of Burton’s purpose in
seeking to represent himself, so § 2254(d)(1) provides no
basis for withholding deference; and that the California courts
did afford Burton a full, fair, and adequate hearing in
determining his purpose in seeking self-representation, so the
presumption of correctness should apply.
4                    BURTON V. DAVIS

                        COUNSEL

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, California,
for Respondent-Appellant.

Marcia A. Morrissey (argued), Santa Monica, California; Lisa
M. Romo, Berkeley, California, for Petitioner-Appellee.


                         OPINION

BYBEE, Circuit Judge:

    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
(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.

                              I

   This case comes before us some thirty-two years after
Burton was tried. During those years, Burton filed a direct
                     BURTON V. DAVIS                       5

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.

A. Pretrial and Trial Proceedings

    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
6                        BURTON V. DAVIS

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.




    1
     Kleinbauer testified that, to the best of her knowledge, she passed
along Brodey’s advice to Burton on July 29, and the State has not disputed
that testimony. The next time Burton appeared in court after July 29 was
August 10—the day Burton first asked to represent himself.
                      BURTON V. DAVIS                          7

    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, “No, sir.
I still rather take time to represent myself. I want to represent
myself.” 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
8                    BURTON V. DAVIS

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 “you do have a constitutional right to
represent yourself, but that is not an unlimited right. You
have that right only if you are ready for trial today.” 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:

           Well, Mr. Burton, we have gone through
       this twice and I have indicated to you that I
       am not going to permit you to [proceed pro
                     BURTON V. DAVIS                       9

       se] because you have indicated to me that you
       are not ready to proceed with the trial. If I am
       in error and if there is a conviction in this
       case, the Appellate Court will certainly
       straighten it out, but I don’t see that any
       useful purpose would be served by going
       through the same conversation again.

          Do you have anything new you want to
       add?

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.
10                    BURTON V. DAVIS

B. Direct Appeal to the California Supreme Court

    Burton pursued an appeal to the California Supreme
Court, and the California Supreme Court affirmed the
judgment in its entirety. See People v. Burton, 771 P.2d 1270
(Cal. 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 (citing Armant v. Marquez, 772 F.2d 552, 555 (9th Cir.
1985); Fritz v. Spalding, 682 F.2d 782, 784 (9th Cir. 1982);
and Maxwell v. Sumner, 673 F.2d 1031, 1036 (9th Cir.
1982)). 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 (citing People v. Windham, 560 P.2d 1187 (Cal. 1977)).
Applying that standard, the court found that Burton did not
ask to represent himself a “reasonable time” before trial and
that “[t]here was no abuse of discretion in the court’s denial
of the motion.” Id. at 1277. On that basis, the court rejected
Burton’s Faretta claim.

C. Initial Federal Habeas Petition

    Burton filed his original petition for a writ of habeas
corpus in the district court in 1992. The district court stayed
the federal habeas proceedings, however, pending exhaustion
of available state remedies. As the district court put it, “this
                          BURTON V. DAVIS                               11

case [then] lingered, largely because of proceedings in the
California State Court system.” The stay would not be lifted
until more than 16 years later, after Burton filed an amended
federal habeas petition in 2008.

D. State Postconviction Proceedings

    After the federal habeas proceedings were stayed, Burton
filed a state habeas petition with the California Supreme
Court. Four years later, the California Supreme Court
ordered the State to show cause why Burton should not be
granted relief on his claim under People v. Frierson, 705 P.2d
396 (Cal. 1985), that he was denied his right to put on a
defense at the guilt phase of trial.

     After both sides filed responses, the court appointed a
referee to conduct an evidentiary hearing. The court directed
the referee to make factual findings on 11 questions,
including a question involving Burton’s purpose in seeking to
represent himself. The sixth reference question asked: “Did
Slick have reason to believe that Petitioner’s in court requests
to represent himself were made for the purpose of delaying
trial, rather than dissatisfaction with Slick’s trial strategy?”2

    The referee conducted a fourteen-day hearing and
submitted his report to the California Supreme Court in 2005.
In response to the sixth reference question, the referee noted


  2
    This question was apparently intended to resolve whether Burton’s
Faretta requests constituted a clear, open, and unequivocal disagreement
with Slick’s trial strategy. See In re Burton, 147 P.3d 1014, 1028 (Cal.
2006) (explaining that, in order to prove a Frierson violation, “a defendant
must clearly and openly—and, thus, unequivocally—express a desire to
present a particular defense”).
12                   BURTON V. DAVIS

Slick’s testimony that Burton was “not emotionally ready to
go to trial” and that Burton’s four requests to represent
himself did not indicate a dissatisfaction with Slick’s trial
strategy. After reviewing the evidence and testimony at the
reference hearing, the referee found that “Petitioner tried to
delay the matter by seeking to represent himself, but those
requests were denied.”

     After receiving postreference briefs from the parties, the
California Supreme Court, in a published decision, rejected
Burton’s Frierson claim. In re Burton, 147 P.3d 1014. The
court agreed with the referee that Slick’s statements were
corroborated by evidence in the record, and accordingly
found that Burton’s “Faretta motions reflected a
dissatisfaction with Slick’s failure to delay the trial, not a
dissatisfaction with Slick’s trial strategy.” Id. at 1026. Two
justices disagreed with the majority’s findings and dissented.
See id. at 1033 (Werdegar, J., dissenting) (“While petitioner
certainly indicated in connection with his four Faretta
motions on August 10 through 17 that he was not ready to go
to trial [pro se] and did not believe the defense case had yet
been fully investigated, to read his comments as reflecting
only a desire to delay trial, unrelated to any concern over the
nature and quality of the representation Slick was providing,
is objectively unreasonable.” (internal footnote omitted)).

E. Federal Habeas Proceedings

    In 2008, Burton filed an amended federal habeas petition.
The district court lifted the stay and ordered the parties to
brief Burton’s first claim—his claim that he was denied his
Sixth Amendment right to self-representation under Faretta.
                       BURTON V. DAVIS                         13

     The State made no attempt to defend the California
Supreme Court’s 1989 decision applying California law to
reject Burton’s Faretta claim. The State recognized that
because Burton filed his original federal habeas petition
before the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Burton’s amended
petition was governed by the pre-AEDPA version of
28 U.S.C. § 2254. Accordingly, the State conceded that “the
Ninth Circuit’s timeliness rule applies here, and Petitioner’s
first two Faretta motions were timely unless they were made
for the purpose of delay.”

    Nevertheless, the State argued that the district court’s
ability to apply the federal timeliness rule was significantly
constrained by the California Supreme Court’s factual
findings in connection with its 2006 decision on Burton’s
Frierson claim—in particular, the court’s finding that
Burton’s Faretta motions reflected a dissatisfaction with
Slick’s failure to delay trial. Citing former § 2254(d), the
State argued to the district court that “[t]hese factual findings
regarding Petitioner’s purpose for making his Faretta
motions are presumed correct on federal habeas review.” In
light of these factual findings, the State contended, the district
court was required to conclude that the California courts’
denial of Burton’s Faretta motions was consistent with
federal law.

    After considering the parties’ briefs, the district court
granted relief on Burton’s Faretta claim. The district court
agreed with the State that, under pre-AEDPA law, Burton’s
claim was governed by this Court’s decision in Fritz.
Accordingly, because the California Supreme Court had
“applied its own less accommodating timeliness standard,”
rather than the federal standard, the district court determined
14                       BURTON V. DAVIS

that the California Supreme Court’s rejection of Burton’s
Faretta claim was “clearly erroneous.” The district court thus
undertook to determine the timeliness of Burton’s Faretta
requests in the first instance.

    The district court determined that it was not required to
defer to any finding by the California Supreme Court that
Burton’s requests were motivated by delay. In the district
court’s view, the question of Burton’s purpose in seeking to
represent himself was a mixed question of fact and law
subject to de novo federal review. The district court also
rejected the referee’s crediting of Slick’s testimony and
discounting of Burton’s testimony (and the testimony of
Slick’s investigator, Kristina Kleinbauer) because those
credibility findings lacked a sufficient basis in the record.3

    The district court reviewed the transcript of Burton’s four
Faretta hearings and found that Burton had complained that
“there was a lack of interest in conducting adequate pre-trial
investigation; there had been inadequate communication
between him and his lawyer; and Mr. Slick did not believe it
was worthwhile to meet with him.” The district court
determined that the reference hearing testimony corroborated
Burton’s stated reasons.

    For example, the district court noted that although Slick
had told the trial judge that he had looked into Burton’s
statements about Otis Clements, Burton’s alleged
coconspirator, the testimony at the reference hearing,


 3
   In particular, the district court noted: “Ms. Kleinbauer and Petitioner
both had clear recollections of the conversations they had with each other
and with Mr. Slick. On the other hand, Mr. Slick remembered virtually
nothing about his representation in this case.”
                     BURTON V. DAVIS                       15

including Slick’s own testimony, revealed that “[n]o
investigation, beyond reading the police reports, had been
done either into Clements’s statements or his background.”
The district court also found that Burton “knew that his
lawyer was not pursuing a complete investigation prior to the
commencement of trial and that he was not even contacting
witnesses who might present evidence contrary to the
prosecutor’s narrative of events.” The district court found
that “Slick did not take even the most de minimis steps” in
challenging highly questionable witness identifications and
“effectively ignor[ed] the information provided to him by his
investigator.”

    As for Burton’s statement in a declaration that he had
observed that other inmates’ death penalty cases were taking
longer, the district court concluded that “this statement is
actually consistent with Petitioner’s complaints that his
lawyer was not conducting adequate investigations and did
not care about his case. Even the investigator, Ms.
Kleinbauer, was surprised to find out Mr. Slick had
commenced the trial so quickly, given that he knew her
investigation was incomplete.”

    In light of these findings, the district court found that
“Petitioner’s stated reasons for asserting his right to self-
representation were legitimate and not made solely for the
purpose of delay.” The district court concluded that Burton’s
Faretta request was timely and accordingly gave the State
120 days to either release Burton from custody or grant him
a new trial.

    The State timely appealed, and the district court granted
the State’s request to stay its judgment pending resolution of
this appeal.
16                      BURTON V. DAVIS

                                  II

    We review de novo a district court’s grant or denial of
habeas corpus relief. Sanders v. Ratelle, 21 F.3d 1446, 1451
(9th Cir. 1994). We review the district court’s resolution of
legal questions de novo, and we review the district court’s
findings of fact for clear error. Seidel v. Merkle, 146 F.3d
750, 753 (9th Cir. 1998); see also Sanders, 21 F.3d at
1451–52; Fed. R. Civ. P. 52(a).

    Because Burton filed his federal habeas corpus petition
before AEDPA’s effective date, we apply the former version
of 28 U.S.C. § 2254 and pre-AEDPA law. See Thomas v.
Chappell, 678 F.3d 1086, 1100–01 (9th Cir. 2012). Under
pre-AEDPA law, a state court’s determinations of pure
questions of law and mixed questions of law and fact are
subject to de novo federal review. Sanders, 21 F.3d at 1451.
The state court’s findings of fact are ordinarily subject to
deference, however, and are presumed to be correct unless
they fall within one of eight exceptions listed in former
§ 2254(d).4



  4
    The presumption of correctness applies “unless the applicant shall
establish or it shall otherwise appear, or the respondent shall admit”:

        (1) that the merits of the factual dispute were not
            resolved in the State court hearing;

        (2) that the factfinding procedure employed by the
            State court was not adequate to afford a full and
            fair hearing;

        (3) that the material facts were not adequately
            developed at the State court hearing;
                         BURTON V. DAVIS                            17

                                   III

    We must determine whether the California courts’
rejection of Burton’s Faretta claim was contrary to “the
Constitution or laws . . . of the United States.” 28 U.S.C.
§ 2254(a) (1994). Under the nonretroactivity rule announced
in Teague v. Lane, we review state court decisions according
to federal law as it existed at the time the petitioner’s
conviction became final on direct review. 489 U.S. 288, 310
(1989) (holding that “new constitutional rules of criminal
procedure will not be applicable to [state criminal] cases
which have become final before the new rules are
announced”).




        (4) that the State court lacked jurisdiction of the
            subject matter or over the person of the applicant
            in the State court proceeding;

        (5) that the applicant was an indigent and the State
            court, in deprivation of his constitutional right,
            failed to appoint counsel to represent him in the
            State court proceeding;

        (6) that the applicant did not receive a full, fair, and
            adequate hearing in the State court proceeding; or

        (7) that the applicant was otherwise denied due
            process of law in the State court proceeding;

        (8) or . . . the Federal court on a consideration of [the
            state court] record as a whole concludes that such
            factual determination is not fairly supported by the
            record.

28 U.S.C. § 2254(d) (1994).
18                    BURTON V. DAVIS

    We proceed in two steps. First, we address whether the
California courts’ decision to deny Burton his Faretta rights
was contrary to decisions of the United States Supreme Court.
Because we conclude that it was not, we then ask whether
that decision was contrary to our own contemporaneous
decisions. We conclude that the California courts’ decision
was contrary to the federal Constitution, as interpreted by our
cases.

A. Supreme Court Law

    We first consider whether the decisions of the United
States Supreme Court dictate the result in this case. What we
said nearly two decades ago is still true today: “The only
Supreme Court decision to discuss the timeliness of a request
to proceed pro se is the Faretta decision itself.” Moore v.
Calderon, 108 F.3d 261, 265 (9th Cir. 1997).

    In Faretta, the Supreme Court noted that the defendant
had asked to proceed pro se “weeks before trial” and then
held that “[i]n forcing Faretta, under these circumstances, to
accept against his will a state-appointed public defender, the
California courts deprived him of his constitutional right to
conduct his own defense.” 422 U.S. at 835–36 (emphasis
added). Because we viewed the timing element as essential
to the Court’s holding in Faretta, we determined in Moore
that, after Faretta, the Supreme Court had clearly established
that a request to proceed pro se is timely if made “weeks
before trial.” Moore, 108 F.3d at 265.

     Thus, had Burton asked to represent himself weeks before
trial and had the trial court denied his request as untimely, we
would conclude that the denial was contrary to Faretta and
would issue the writ on that basis. Burton did not make his
                         BURTON V. DAVIS                              19

request weeks before trial, however; he made it days before
trial—three court days before the jury was empaneled, to be
exact. Thus, Faretta does not clearly entitle Burton to relief.5

B. Circuit Law

     Although the Supreme Court’s decision in Faretta does
not entitle Burton to relief, this does not end our inquiry.
Under the prior version of § 2254, a federal court could issue
a writ of habeas corpus “only on the ground that [the state
prisoner] is in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a) (1994).
The current version of § 2254 restricts the “violation of the
Constitution” that federal courts can remedy to violations of
“clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1)
(emphasis added). There was no such restriction in the prior
law. Accordingly, as we observed, “[u]nder the old version
of § 2254(d), we look to the decisions of the Supreme Court
and of this court in deciding whether a writ should issue.”
Moore, 108 F.3d at 264 (emphasis added); see also Williams
v. Taylor, 529 U.S. 362, 412 (2000) (explaining that
“[AEDPA] restricts the source of clearly established law to
th[e Supreme] Court’s jurisprudence” whereas former § 2254,
as interpreted by Teague, did not). We turn now to the state
of our own circuit law in 1989, the year Burton’s conviction
became final on state direct review.


 5
   For this reason, were Burton’s petition governed by AEDPA, we would
have to reject his Faretta claim. See Marshall v. Taylor, 395 F.3d 1058,
1061 (9th Cir. 2005) (holding that the California rule for determining the
timeliness of Faretta motions was not contrary to the United States
Supreme Court’s holding in Faretta that a request made “weeks before
trial” is timely).
20                    BURTON V. DAVIS

     1. Fritz is controlling law

    The law in this circuit was clear. Before Burton’s
conviction became final—indeed, before Burton was even
arrested—we held in Fritz v. Spalding that “a motion to
proceed pro se is timely if made before the jury is empaneled,
unless it is shown to be a tactic to secure delay.” 682 F.2d at
784 (citing Maxwell, 673 F.2d at 1036). We clarified that
“[d]elay per se is not a sufficient ground for denying a
defendant’s constitutional right of self-representation” and
that a defendant “may not be deprived of that right absent an
affirmative showing of purpose to secure delay.” Id.

    In Fritz, the Washington Court of Appeals had found that
the petitioner’s Faretta motion “was a tactic ‘to delay his
scheduled trial and obstruct the orderly course of the
administration of justice.’” Id. at 784 (quoting State v. Fritz,
585 P.2d 173, 180 (Wash. Ct. App. 1978)). Nevertheless, we
concluded that the state court’s purpose-to-delay finding was
not entitled to deference because “material facts were not
adequately developed” and the state court hearing did not
afford him a full, fair, and adequate hearing on the issue. Id.
at 785 (citing former 28 U.S.C. § 2254(d)(3) and (d)(6)). We
noted that “much of the evidence adduced at the hearings
[wa]s pertinent to [the petitioner’s] motivation,” but “[t]he
evidence [wa]s incomplete” because “[n]either [the trial judge
nor the court of appeals] made an express inquiry into [the
petitioner’s] purpose.” Id. Because the district court had also
applied the wrong legal standard, we remanded to the district
court for a determination of the purpose to delay question
under the correct standard. Id.

   Three years after our decision in Fritz, and still four years
before Burton’s conviction became final on direct review, we
                      BURTON V. DAVIS                        21

concluded that the California Court of Appeal failed to follow
Fritz and, accordingly, we granted the writ. See Armant,
772 F.2d at 554. We noted in Armant that the situation there
“differ[ed] from Fritz in a most significant way.” Id. at 556.
Whereas the state court in Fritz had found that the request
was a delay tactic, we observed in Armant that “the state
appellate court did not find that the motion was a tactic to
delay trial” and “nowhere in the record [wa]s there even a
suggestion that Armant made this request for the purpose of
delay.” Id. On these facts, we concluded, Armant’s request
was timely as a matter of law. Id.

      We have subsequently held that Fritz constitutes
established federal law for purposes of former § 2254. See
Moore, 108 F.3d at 264 (noting that Fritz and Armant
“compel our decision” in pre-AEDPA cases); see also id.
(“Although our ‘jury empanelment’ rule for the timeliness of
Faretta motions might have been a ‘new rule’ when it was
announced in 1982, it was not a new rule for Moore because
it was announced before his conviction became final.”
(citations omitted)); id. (noting that “[i]n at least two cases,
. . . we have granted the writ when a California court failed to
follow the ‘jury empanelment’ rule” (citing Armant, 772 F.2d
at 558, and Maxwell, 673 F.2d at 1036)).

    We thus proceed to consider whether the trial judge’s
denials of Burton’s Faretta requests and the California
Supreme Court’s affirmance of those denials were contrary to
our decision in Fritz.

   2. The California trial court failed to apply Fritz

    Burton’s trial judge did precisely what Fritz said not to
do: he denied Burton’s pre-empanelment request to proceed
22                        BURTON V. DAVIS

pro se on the sole ground that Burton was not ready for trial
and would need a continuance. Burton asked to represent
himself four times, and on all four occasions the trial judge
denied his request on this ground.

    Burton first asked to represent himself on August 10,
1983—three court days before the jury was empaneled. The
judge, after first telling Burton that it would be a big mistake
to proceed pro se, asked, “More importantly, you are not
ready for trial today, are you?” When Burton answered that
he was not, the judge 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.”6

    Burton then cited Faretta and told the judge, “It is my
absolute right to represent myself,” and the court again
responded, “I am aware of that fact, if you were ready for trial
today. You are not ready for trial today.” After conferring
with trial counsel, the court then spoke again with Burton:



 6
   The trial court’s concern was simply wrong. It is true that California’s
speedy trial statute required superior courts in felony cases to bring
defendants to trial within 60 days of the filing of charges. See 1982 Cal.
Stat. 1801 (amending Cal. Penal Code § 1382). But the 60-day
requirement was a limit on the government, not the defendant. Trial could
be set on a date beyond the 60-day period “at the request of the defendant
or with his consent, express or implied.” Id.

     That Burton could consent to continuances beyond the statutory 60-
day period was not unknown to the trial judge. On May 9—day 42 of
Burton’s 60-day period—Slick requested a two-month continuance to July
25. The judge instructed the prosecutor to “[t]ake the waiver.” Burton
then assented to the waiver, and the judge granted the continuance, noting
that July 25 “will be the forty-second day.”
                     BURTON V. DAVIS                      23

           The Court: Mr. Burton—and I ask you
       this reluctantly—are you ready to go to trial
       and represent yourself right now, if I—

          Defendant: No, Your Honor, I am
       requesting more continuance. I am not ready,
       Your Honor, at this time.

           The Court: All right. Fine. You have
       your record, Mr. Burton. If I am wrong and
       you are right, the Appellate Court will take
       care of it. I am going to deny your motion.

The next day, Burton asked to represent himself a second
time. The trial judge told him:

       Well, Mr. Burton, first of all, you do have a
       constitutional right to represent yourself, but
       that is not an unlimited right. You have that
       right only if you are ready for trial today.
       And you have told me again and again that
       you are not ready for trial today. This matter
       was scheduled for trial and has been pending
       for almost the maximum period of time
       allowed to try these cases.

After Burton persisted, the trial judge stated, “Okay, Mr.
Burton, I am going to deny your motion for a continuance—I
think that is part of your motion—and for self-representation
on the basis that you are not ready today.”

   During the trial, Burton asked to proceed pro se two
additional times. The first time, the judge again inquired,
“Are you ready to proceed today?” When Burton once again
24                    BURTON V. DAVIS

answered that he was not, the judge denied the motion. The
second and last time Burton asked, the judge responded,
“Well, Mr. Burton, we have gone through this twice and I
have indicated to you that I am not going to permit you to go
in pro per because you have indicated to me that you are not
ready to proceed with the trial.”

    The trial court never found, or even suggested, that
Burton’s requests were insincere or were a mere delay tactic.
Cf. Moore, 108 F.3d at 264 (“[T]he trial court made no
finding that Moore’s [pre-empanelment] request was a tactic
for delay, and the record does not suggest that it was such a
tactic. Thus, under our case law, Moore’s request was timely,
and he is entitled to the writ.”); Armant, 772 F.2d at 556
(“[N]owhere in the record is there even a suggestion that
Armant made this request for the purpose of delay; Armant
was in jail at the time the motion was made and would
apparently have remained there throughout the period of any
continuance.”). It is thus clear that the trial court’s rejection
of Burton’s requests was contrary to established Sixth
Amendment law in this circuit.

     3. The California Supreme Court failed to apply Fritz

     Although the trial court’s decision was certainly contrary
to our holding in Fritz, we must also consider whether the
error was cured on appeal. See Dyer v. Calderon, 151 F.3d
970, 979 n.11 (9th Cir. 1998) (en banc) (considering whether
the California Supreme Court “cure[d] the inadequacy of the
trial court’s hearing” and concluding that “[b]ecause the
California Supreme Court’s findings were grounded in the
same incomplete record as the trial court’s, its findings are no
more entitled to a presumption of correctness”). Burton
appealed the trial court’s denial of his Faretta requests to the
                      BURTON V. DAVIS                         25

California Supreme Court, and the California Supreme Court
affirmed in a published decision, which we now consider.

     The California Supreme Court applied its own state law
for determining the timeliness of Faretta requests. Under the
California standard, “[i]n order to invoke an unconditional
right of self-representation, the defendant must assert the
right ‘within a reasonable time prior to the commencement of
trial.’” Burton, 771 P.2d at 1275 (quoting People v.
Windham, 560 P.2d 1187, 1191 (Cal. 1977)). “A motion
made after this period is addressed to the sound discretion of
the trial court.” Id. In exercising that discretion, trial courts
are “to consider the ‘quality of counsel’s representation of the
defendant, the defendant’s prior proclivity to substitute
counsel, the reasons for the request, the length and stage of
the proceedings, and the disruption or delay which might
reasonably be expected to follow the granting of such a
motion.’” Id. at 1276 (quoting Windham, 560 P.2d at
1191–92).

    Because Burton first asked to represent himself just three
court days before the jury was empaneled, which, in the
court’s view, was less than a “reasonable time prior to the
commencement of trial,” the court determined that Burton did
not have an unconditional right to self-representation. Id. at
1275. Addressing the factors a trial court is to consider, the
court noted that “[a]lthough [Burton] apparently had not
shown a previous proclivity for substituting counsel,” other
factors supported the trial court’s decision. Id. at 1277. For
example, the court found:

        Defense counsel had represented defendant
        for six months, since the preliminary hearing,
        and defendant had had several court
26                    BURTON V. DAVIS

       appearances in which he could have invoked
       his right to represent himself. Defendant
       asserted he was not ready to go to trial and
       needed an unspecified period for preparation.

Id. at 1276. The court concluded that “[u]nder the
circumstances, the motion was clearly directed to the sound
discretion of the trial court.” Id.

    Burton argued that the court “should follow the federal
rule,” but the court declined to do so. Id. After correctly
reciting the federal rule, and citing Armant, Fritz, and
Maxwell, the court stated that “[t]he federal rule, though it
calls motions timely until the jury is impaneled, may in
practice differ little from our own rule.” Id. This was so, the
court explained, because “[t]he fact that the granting of the
motion will cause a continuance, and that this will prejudice
the People, may be evidence of the defendant’s dilatory
intent.” Id. Thus, the court reasoned, although “[i]n the
instant case[] . . . the motion would be termed timely under
the federal rule, the trial court would still have discretion to
deny the motion if it considered it entered for the purpose of
delay.” Id.

     Practical similarities aside, the court acknowledged some
significant differences between the California rule and the
federal rule. First, the court recognized that the California
rule shifted the burden from the government to the defendant.
Under the California rule the burden is on the defendant to
explain his delay, whereas under the federal rule a pre-
empanelment request is timely unless the government shows
that the request was a delay tactic. Id. at 1276–77. Second,
when the defendant makes the request shortly before the jury
is to be empaneled, the California rule leaves the decision to
                          BURTON V. DAVIS                               27

grant the request to the trial court’s sound discretion, whereas
the federal rule does not. Id. at 1277; see also Armant,
772 F.2d at 555 (stating that, under the federal rule, “[i]f the[]
[Fritz] criteria are met, then a defendant’s motion to represent
himself should be granted”).7

    Given these differences, the California Supreme Court
rejected the federal rule: “To the extent that there is a
difference between the federal rule and the California rule,”
the court stated, “we find the federal rule too rigid in
circumscribing the discretion of the trial court and adhere to
the California rule.” Burton, 771 P.2d at 1277. The court
thus affirmed the trial court’s decision as an exercise of
discretion and made no finding as to whether Burton’s
request was a mere delay tactic. Id.

    The California Supreme Court’s decision was contrary to
Sixth Amendment law established in Fritz and Armant. See
Moore, 108 F.3d at 264. Indeed, at the time of the California
Supreme Court’s decision, we had already held that
California state court decisions applying the California
Supreme Court’s Windham standard contravened the federal
law set forth in Fritz. See Armant, 772 F.2d at 555–56. The


  7
    There is another, more significant difference between the California
rule and the federal rule: the considerations under each rule are different.
Compare Burton, 771 P.2d at 1276 (courts must consider the quality of
counsel’s representation of the defendant, the defendant’s prior proclivity
to substitute counsel, the reasons for the request, the length and stage of
the proceedings, and the disruption or delay that would result from
granting the request), with Fritz, 682 F.2d at 784–85 (courts must
determine whether a request is a “tactic to secure delay” by considering
whether a delay would prejudice the prosecution, whether the motion
could have been raised earlier, and whether the events preceding the
motion are consistent with a good faith assertion of the Faretta right).
28                    BURTON V. DAVIS

California Supreme Court justified its disregard of the federal
rule on the ground that state courts “are of course not bound
to follow the authority of the federal courts of appeals.”
Burton, at 1277 n.2. But while that may now be true under
AEDPA, it was not true before AEDPA. See Moore,
108 F.3d at 264 (holding that Fritz and its progeny
“establishing a ‘jury empanelment’ rule for timeliness compel
our decision” in pre-AEDPA cases and that, therefore,
“California’s argument that habeas relief is barred by Teague
v. Lane has no merit” (citation omitted)); see also Avila v.
Roe, 298 F.3d 750, 753 n.3 (9th Cir. 2002) (“Although both
the state superior court and the state appellate court applied
the California rule, we are obligated to follow the Ninth
Circuit rule.”).

     4. The district court was entitled to apply Fritz in the
        first instance

    In sum, the trial court’s repeated denials of Burton’s
Faretta requests and the California Supreme Court’s decision
affirming those denials were contrary to our decisions in Fritz
and Armant. Because neither court made any finding that
Burton’s requests were a mere delay tactic, it was appropriate
for the district court to determine the timeliness of Burton’s
Faretta motions in the first instance. See Fritz, 682 F.2d at
786 (holding that “facts material to Fritz’s constitutional
claim were not adequately developed in state court and that
Fritz [wa]s thus entitled to an evidentiary hearing in federal
district court to determine whether his motion to proceed pro
se was made as a tactic to delay the start of trial” (emphasis
added)); Maxwell, 673 F.2d at 1036 & n.5 (deferring to the
district court’s finding, on habeas review of a state court
decision, that Maxwell’s motion was not made for the
purpose of delay).
                     BURTON V. DAVIS                       29

                             IV

    In the usual case, having determined that the state court
failed to apply the proper analysis and make the necessary
findings of fact required by federal law, we would now
simply review the district court’s determination of those
issues under the usual standards of appellate review. This,
however, is not the usual case.

     Seventeen years after its decision on Burton’s direct
appeal, the California Supreme Court determined that
Burton’s lawyer, Ronald Slick, had reason to believe that
Burton asked to proceed pro se for the purpose of delaying
trial. The State argues that although the district court was
entitled to determine the timeliness of Burton’s Faretta
motions, the district court was required under former
28 U.S.C. § 2254(d) to defer to this finding by the California
Supreme Court.

    For the reasons we explain below, however, the district
court did not have to defer to this finding. The California
postconviction proceedings only inquired whether, for
purposes of Burton’s Frierson claim, Slick had refused to
present the defense Burton wanted and whether Slick believed
Burton sought to delay trial because of a breakdown in the
attorney-client relationship. Burton’s Frierson proceedings,
as we explain, did not ask whether Burton intended to delay,
only whether Slick thought that was Burton’s intent.

A. Applicability of Former § 2254(d)

    Under former 28 U.S.C. § 2254(d), state court findings of
fact are “‘presumed to be correct’ in a federal habeas corpus
proceeding unless one of eight enumerated exceptions
30                   BURTON V. DAVIS

applies.” Miller v. Fenton, 474 U.S. 104, 105 (1985) (quoting
28 U.S.C. § 2254(d)). If the presumption of correctness
applies, it is the petitioner’s burden to show by convincing
evidence that the state court’s findings were erroneous.
28 U.S.C. § 2254(d) (1994). If one of § 2254(d)’s exceptions
applies, however, the state court’s factual determinations will
not be presumed correct and the district court must try the
facts anew. Fritz, 682 F.2d at 785.

    The district court did not consider whether the exceptions
applied here because it concluded that § 2254(d) did not
apply. In the district court’s view, “whether or not [Burton]’s
motives were dilatory” was not a question of fact, but a mixed
question of law and fact subject to de novo federal review.
See Cuyler v. Sullivan, 446 U.S. 335, 342 (1980) (questions
of law and mixed questions of law and fact not subject to
§ 2254(d)’s presumption). In this regard, we think the district
court was incorrect.

    Our decisions have uniformly treated the determination of
a petitioner’s purpose in seeking to represent himself as a
question of fact. In Fritz, for example, we explicitly
recognized that a state court’s finding of purpose to secure
delay is “entitled to deference in a federal habeas
proceeding.” Fritz, 682 F.2d at 785. Accordingly, we
considered the § 2254(d) exceptions and ultimately concluded
that “no deference [wa]s warranted” in that case under two
exceptions: § 2254(d)(3) (material facts not adequately
developed in state court) and § 2254(d)(6) (petitioner not
afforded a full, fair, and adequate hearing). Id.

   In Maxwell, we treated another state court’s finding of
purpose to delay in a similar manner. See 673 F.2d at 1033,
1035–36. As in Fritz, we recognized that, as a general rule,
                      BURTON V. DAVIS                        31

“[t]he district court in a habeas corpus proceeding must
presume that the state trial court’s factual determinations are
correct.” Id. at 1035 (citing 28 U.S.C. § 2254(d)). We
nevertheless agreed with the district court that “nothing in the
record supported” the state court’s determination that the
petitioner’s request was made for the purpose of delay. Id. at
1035–36. The state court’s findings thus fell under
§ 2254(d)’s last exception: (d)(8) (finding not fairly
supported by the record). Id.

    It is true, as Burton argues, that “‘basic, primary, or
historical facts’ are the ‘factual issue[s]’ to which the
statutory presumption of correctness dominantly relates.”
Thompson v. Keohane, 516 U.S. 99, 110 (1995) (alteration in
original) (quoting Miller, 474 U.S. at 112). But the Supreme
Court has recognized that § 2254(d)’s presumption may apply
to questions that go beyond mere “basic, primary, or
historical facts.” These questions often involve “individual-
specific decision[s]” that are “unlikely to have precedential
value,” and often “depend[] heavily on the trial court’s
appraisal of witness credibility and demeanor.” Id. at 111,
114; see, e.g., Wainwright v. Witt, 469 U.S. 412, 429 (1985)
(juror impartiality); Maggio v. Fulford, 462 U.S. 111, 117
(1983) (per curiam) (defendant’s competency to stand trial);
Collazo v. Estelle, 940 F.2d 411, 416 (9th Cir. 1991) (en
banc) (defendant’s knowing and intelligent waiver of
Miranda rights).

    Whether a petitioner’s Faretta request is motivated by
delay is just such a question of fact. Determining that fact
will be different for each petitioner and will depend on the
court’s assessment of the totality of the petitioner’s conduct
both before and after the request to determine whether the
petitioner’s actions “are consistent with a good faith assertion
32                    BURTON V. DAVIS

of the Faretta right.” Fritz, 682 F.2d at 784. Indeed, for
these same reasons, we concluded in Maxwell that we would
review the district court’s determination of no purpose to
delay as a finding of fact:

        The [district court’s] finding[] that
        Maxwell[’s] . . . motion was not made for the
        purpose of delay [is] based on the fact-finding
        tribunal’s experience with the mainsprings of
        human conduct, and on its experience in
        conducting trials and observing defendants’
        behavior. We therefore review the district
        court’s determinations as findings of fact,
        which, although based solely on documentary
        evidence, will be set aside only if clearly
        erroneous.

673 F.2d at 1036 (citation and internal quotation marks
omitted); see also United States v. Smith, 780 F.2d 810, 812
(9th Cir. 1986) (holding that “[t]he [district] court’s findings,
including the ultimate finding of intent [to delay], were not
clearly erroneous”).

    Accordingly, the district court erred when it treated the
purpose to delay question as a mixed question of law and fact.
Nevertheless, we may uphold the district court’s decision to
decide that factual question de novo if Burton shows or “it . . .
otherwise appear[s]” that one of § 2254(d)’s eight exceptions
applies. 28 U.S.C. § 2254(d) (1994); see also Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc) (“We
may affirm on any ground supported by the record, even if it
differs from the rationale used by the district court.”).
                        BURTON V. DAVIS                             33

B. Exceptions to § 2254(d)’s Presumption of Correctness

    Burton argues that the district court was not required to
presume that his requests were a mere delay tactic because,
under § 2254(d)(1), the merits of that factual dispute were not
resolved in the state postconviction hearing and, under
§ 2254(d)(2) and (d)(6), he was denied a full, fair, and
adequate state court hearing on the issue. We agree with both
contentions.8

     1. Burton’s Frierson proceedings did not resolve
        whether Burton’s sole purpose was to delay trial

    Most fundamentally, the district court was not required to
presume that Burton asked to represent himself for the sole
purpose of delaying trial because the merits of that factual
issue were not resolved in Burton’s Frierson proceedings.
See 28 U.S.C. § 2254(d)(1) (1994); see Chacon v. Wood,
36 F.3d 1459, 1465 (9th Cir. 1994) (holding that there was
“no relevant state court finding to which deference was due
under 28 U.S.C. § 2254(d)” because the state court’s
“findings [we]re not responsive to [the petitioner]’s
contention”). Indeed, that factual issue was not even relevant
to Burton’s Frierson claim.

   Before we can explain why the California Supreme
Court’s Frierson findings did not resolve the timeliness of
Burton’s Faretta claim, a brief overview of the Frierson
decision is in order. At issue in Frierson was a defense


 8
   Because we conclude that these exceptions to § 2254(d)’s presumption
of correctness apply, we decline to reach Burton’s alternative argument
that, under § 2254(d)(8), the California Supreme Court’s finding is not
fairly supported by the record.
34                    BURTON V. DAVIS

counsel’s decision—over a defendant’s strenuous
objections—not to present a particular defense at the guilt
phase of trial, but to reserve that defense for the penalty
phase. 705 P.2d at 399–400. The California Supreme Court
held that the issue was “whether a defense counsel’s
traditional power to control the conduct of a case includes the
authority to withhold the presentation of any defense at the
guilt/special circumstance stage of a capital case, in the face
of a defendant’s openly expressed desire to present a defense
at that stage.” Id. at 401. As the court observed, “this issue
is quite distinct from the question whether trial counsel
provided competent representation.” Id.

    In Frierson’s case, the court had “little doubt that trial
counsel’s actions reflected his judgment as to the most
promising trial strategy,” id. at 402, but nevertheless held that
“counsel could [not] properly refuse to honor [the]
defendant’s clearly expressed desire to present a defense at
that stage,” a right that was related to a defendant’s Sixth
Amendment right to “‘personally . . . make his defense.’” Id.
at 403 & n.4 (quoting Faretta, 422 U.S. at 819). The court

        emphasize[d] that [its] holding rests on the
        fact that the record in this case expressly
        reflects a conflict between defendant and
        counsel over whether a defense was to be
        presented at the guilt/special circumstance
        stage. . . . Thus, nothing in this opinion is
        intended to suggest that—in the absence of
        such an express conflict—a court is required
        to obtain an on-the-record, personal waiver
        from the defendant whenever defense counsel
        chooses to rest without putting on a defense.
                      BURTON V. DAVIS                         35

Id. at 405 n.8. The court thus reversed Frierson’s penalty
judgment. Id. at 406.

     As the California Supreme Court explained in Burton’s
postconviction proceedings, “Frierson means that ‘a defense
counsel’s traditional power to control the conduct of a case
does not include the authority to withhold the presentation of
any defense at the guilt/special circumstance stage of a capital
trial when the defendant openly expresses a desire to present
a defense at that stage and when there exists credible
evidence to support that defense.’” In re Burton, 147 P.3d at
1020 (quoting People v. Milner, 753 P.2d 669, 681 (Cal.
1988)). A defendant’s Frierson right comes into play “only
in [the] case of an express conflict arising between the
defendant and counsel.” Id. (quoting People v. Bradford,
939 P.2d 259, 318 (Cal. 1997)).

    When the California Supreme Court referred Burton’s
postconviction claims to a referee for findings, it did not ask
the referee to rule on Burton’s Faretta claim. Instead, it
asked the referee for findings on Burton’s Frierson claim.
These are different inquiries, representing different rights,
although there may be some overlap. See Frierson, 705 P.3d
at 403 & n.4. Accordingly, when the referee issued his
findings, he necessarily focused on what Slick believed
Burton wanted him to do with respect to trial strategy, not
whether or why Burton wished to represent himself.

    The California Supreme Court made that quite clear to the
referee. Here is the sixth reference question put to the
referee: “Did Slick have reason to believe that Petitioner’s in
court requests to represent himself were made for the purpose
of delaying trial, rather than dissatisfaction with Slick’s trial
strategy?” The first six words of that question are critical.
36                    BURTON V. DAVIS

Did Slick have reason to believe? The question could have
asked about Burton’s purpose directly, but instead, consistent
with Frierson, it asked about what Slick had reason to believe
about Burton’s purpose and whether there was a conflict
between them. The referee could not have been clearer on
this point: “What difference does it make [what Burton was
thinking]? The question is what’s going on in Slick’s mind,
not Mr. Burton’s mind.”

     The referee’s findings were confined by the limited scope
of the question. The referee began his response to the sixth
reference question by focusing on Slick’s testimony. Slick
testified that Burton told him he was “not ready to go to trial”
and “[c]ouldn’t present a reason” and that Slick “did not
believe that Petitioner’s requests to represent himself on four
occasions in August 1983 indicated a dissatisfaction with Mr.
Slick’s trial strategy.” The referee then pointed to Slick’s
stated belief that Burton was “not emotionally ready to go to
trial at that time.” So far, these findings go directly to what
Slick had reason to believe and only indirectly to what
Burton’s actual purpose was. As evidence of Burton’s
motivation, this evidence would be hearsay.

     The referee then looked to whether other evidence
corroborated Slick’s statements. The referee pointed, first of
all, to Burton’s statement that other death row inmates tended
to have their cases continued longer, a conclusion that was
unsurprising since Slick had already asked for a continuance
in his case. He also noted that Burton had refused to meet on
one occasion with Dr. Michael Maloney, a psychologist hired
                         BURTON V. DAVIS                             37

by Slick.9 The referee found that Burton’s statement and
Burton’s refusal to meet with the psychologist “suggest[ed]”
that Burton was not “truly interested in vigorously defending
his case.” These findings all support the referee’s ultimate
finding, in response to the reference question, that Slick did
have reason to believe Burton’s requests to represent himself
were made for the purpose of delaying trial, and not because
Burton disagreed with Slick’s strategy.

    The California Supreme Court’s own findings are
similarly limited. After noting Slick’s testimony that “it is
not unusual for defendants to prefer to delay trial and to give
the appearance of being able to ‘wait it out,’” and that
“Burton, who was facing a capital trial, was such a
defendant,” the court then proceeded to discuss whether
“Slick’s assessment of Burton’s motivation was corroborated
by other evidence at the hearing.” In re Burton, 147 P.3d at
1026. Although the court found that Burton’s “game
playing” with the psychologist and his statement that other
inmates with death penalty cases all tended to have their cases
continued longer were “fully consistent with a defendant who
was interested in delay for delay’s sake,” those statements
must be read in context. In context, the court was identifying


 9
    The referee did not mention the reason Burton gave for declining the
interview. Dr. Maloney stated in his declaration that “[Burton] told me
that he wanted nothing to do with Mr. Slick and was representing
himself.” In the next sentence, Dr. Maloney added that he was later able
to interview Burton regarding his background.

    Nor did the referee mention that a week before Dr. Maloney first
attempted to interview Burton, Burton cooperated with a different expert,
Dr. Kaushal Sharma. Burton told Dr. Sharma he was innocent, and Dr.
Sharma reported to Slick that if Burton’s claim was true, there was
nothing to support a mental state defense.
38                    BURTON V. DAVIS

evidence that “corroborated” “Slick’s assessment of Burton’s
motivation” and that refuted Burton’s argument that “the only
reasonable inference to be drawn from his Faretta motions
[wa]s that he wanted to defend against the state’s case.” Id.
(internal quotation marks omitted).

    The court thus made clear that Burton’s Faretta motions
were considered only for the purpose of determining whether
they would “support Burton’s Frierson claim.” Id. at 1025;
see also id. at 1026 (“Burton’s Faretta motions reflected a
dissatisfaction with Slick’s failure to delay the trial, not a
dissatisfaction with Slick’s trial strategy.”). Concluding that
it was possible for Slick to infer that Burton was motivated by
delay is not the same as concluding that Burton actually
intended to delay trial for delay’s sake.

    To be sure, some of the referee’s and the California
Supreme Court’s findings seem to go directly to Burton’s
actual motives. For example, the referee concluded his
response to the sixth reference question by stating, “Petitioner
tried to delay the matter by seeking to represent himself, but
those requests were denied.” Similarly, the California
Supreme Court concluded that “Burton plainly was
dissatisfied with the imminent approach of his capital trial,
and Slick was aware of the fact his client was dissatisfied.”
Id. at 1029.

    But saying that Burton “tried to delay the matter” or was
“dissatisfied with the imminent approach of his capital trial”
does not mean that the requests were a “tactic to secure
delay.” Fritz, 682 F.2d at 784. Fritz made it clear that a mere
showing that a defendant wants to delay trial is not enough:
                          BURTON V. DAVIS                              39

         Delay per se is not a sufficient ground for
         denying a defendant’s constitutional right of
         self-representation. Any motion to proceed
         pro se that is made on the morning of trial is
         likely to cause delay; a defendant may
         nonetheless have bona fide reasons for not
         asserting his right until that time, and he may
         not be deprived of that right absent an
         affirmative showing of purpose to secure
         delay.

Id. (citation omitted). There is a very important distinction
between wanting to delay trial for legitimate reasons and
wanting to delay trial for the purpose of securing delay.10
Moore wanted to delay trial, see Moore, 108 F.3d at 262
(Moore asked for a continuance “to prepare for trial”), and so
did Armant, Armant, 772 F.2d at 554–55 (Armant asked for
three weeks to prepare and answered “no” when the trial
judge asked if he was “prepared to go to trial in this matter
today”). Yet in both cases we concluded that nothing in the
record suggested that the requests were made solely for the
purpose of delay. See Moore, 108 F.3d at 264; Armant,
772 F.2d at 556; see also id. at 556 n.1 (explaining that the
petitioner’s legitimate purpose throughout the proceedings


   10
      The dissent accuses us of misconstruing Fritz when we discuss
whether Burton had a “sole purpose” of delay. Dissent Op. 66 n.3. The
problem with the dissent’s assertion is that it ignores the important
distinction drawn in Fritz itself: that “[d]elay per se is not a sufficient
ground for denying a defendant’s constitutional right of self-
representation.” 682 F.2d 784. Instead, our framing of the issue is
nothing more than a recognition that nearly all Faretta requests will have
an inherent component of delay, and the courts’ task is to sift between
Faretta requests with “bona fide reasons” underlying them, and those
motivated merely by a desire to delay for delay’s sake. Id.
40                    BURTON V. DAVIS

“was to be afforded an opportunity to conduct his defense as
he thought best”).

     Here, no one questions that Burton wanted to delay trial;
he clearly did. The question is why he wanted to delay
trial—did he have legitimate, good faith reasons, or was this
a bad-faith attempt on his part to delay trial for the mere
purpose of delaying trial? In our view, the California
Supreme Court never conclusively answered this question, in
large measure because the court was focused on a different
question.

     If anything, the California Supreme Court’s opinion and
the referee’s report both suggest that the delay was not
Burton’s sole purpose and that Burton in fact did ask to delay
trial for legitimate reasons. The California Supreme Court
found that Burton “seemed focused on investigating all
possible avenues of defense, including defenses of alibi and
mistaken identification.” In re Burton, 147 P.3d at 1028; cf.
Armant, 772 F.2d at 556 n.1. And the referee found that “the
credible evidence adduced at the Reference Hearing was that
Petitioner was concerned about how quickly his case was
moving forward and that he thought that Mr. Slick was not
devoting enough time to his case.” Cf. Moore, 108 F.3d at
262 (Moore told his judge “that he had doubts about his
court-appointed lawyer” and, on another occasion, “engaged
in a lengthy discussion” with the court “about his
dissatisfaction with his lawyer and his desire to represent
himself”). Although these findings were not enough to
establish a Frierson claim, they positively support Burton’s
contention that his Faretta requests were not a tactic to secure
delay. See Fritz, 682 F.2d at 784.
                      BURTON V. DAVIS                        41

    The State argues that the referee properly determined
Burton’s subjective purpose in seeking to represent himself
and that the California Supreme Court accepted that
determination. In particular, the State contends that the sixth
reference question actually does put at issue Burton’s
purpose, notwithstanding the question’s express focus on
Slick’s understanding. This is so, the State argues, because
“Slick testified at the reference hearing that he could only
answer reference question No. 6 on the basis of Petitioner’s
statements to Slick.” Thus, “any factual findings regarding
Petitioner’s statements to Slick, and the corresponding
inferences that could be drawn from those statements as to
Petitioner’s actual motive to delay the trial, were properly
encompassed within the scope of the reference question.”

     We do not doubt that the sixth reference question
encompassed the possible “inferences that could be drawn”
from Burton’s statements. It is hard to imagine how else a
factfinder would go about determining whether Slick had
reason to believe that Burton’s Faretta requests were made
for the purpose of delaying trial rather than for the purpose of
expressing a desire to present a defense. But Fritz does not
ask whether invoking Faretta with a purpose to delay is a
permissible “inference that could be drawn” by a single
person, the petitioner’s lawyer; it asks whether the
defendant’s actual and sole purpose was to delay trial and
instructs that the defendant’s purpose is to be determined
from the totality of the circumstances both leading up to and
following the request. See id. at 784–86. Under Frierson, the
question is entirely different—the question is, as the referee
candidly put it, “what’s going on in Slick’s mind, not [what’s
going on in] Burton’s mind.”
42                    BURTON V. DAVIS

    We thus conclude that the merits of Burton’s actual
purpose in seeking to represent himself were not decided in
the Frierson proceedings. Under § 2254(d)(1), then, the
district court was not required to presume that Burton’s
request was a mere delay tactic.

     2. Burton’s Frierson proceedings did not afford a full,
        fair, and adequate hearing on his purpose in seeking
        to represent himself

    Even if the California Supreme Court had found that
Burton’s Faretta motions were a mere delay tactic, Burton
never received a full, fair, and adequate hearing on that issue.
See 28 U.S.C. § 2254(d)(2) (“factfinding procedure . . . not
adequate to afford a full and fair hearing”), (d)(6) (“applicant
did not receive a full, fair, and adequate hearing”) (1994).
The Frierson proceedings were inadequate to fully and fairly
resolve Burton’s Faretta claim for at least three reasons.

        a. The burden of proof was not placed on the
           government

    Few things are more integral to the fairness of a court’s
factfinding procedure than placing the burden of proof on the
right party. Yet here, by proceeding under Frierson instead
of Faretta, the State shifted the burden of proof from the
State, where it belongs, to Burton, where it does not belong.

    As we explained in Fritz, the burden is on the State, not
the defendant, to make “an affirmative showing” that a
defendant’s pre-empanelment Faretta request is made for the
purpose of delaying trial. Fritz, 682 F.2d at 784; see also id.
(“[A] motion to proceed pro se is timely if made before the
                       BURTON V. DAVIS                         43

jury is empaneled, unless it is shown to be a tactic to secure
delay.” (emphasis added)); Moore, 108 F.3d at 264 (same).

     Frierson reverses that burden of proof. As the California
Supreme Court made clear in Burton’s case, it was Burton’s
burden to prove his Frierson claim. See In re Burton,
147 P.3d at 1022 (accepting Slick’s account of events
“because Burton, despite offering an array of objections, fails
to identify a convincing rationale for rejecting it”); id. at 1028
(agreeing with the referee that “Burton failed to rebut, by a
preponderance of the evidence, Slick’s testimony that he had
discussed his trial strategy at the guilt phase with Burton and
that Burton did not object to it”); id. at 1029 (discussing the
“defendant’s burden in establishing a Frierson claim”). This
difference in burden of proof is reason alone not to apply the
presumption of correctness in this case.

    In many cases, the burden of proof could completely
determine the outcome of the constitutional claim. Indeed,
this case is a good example. Because there was no express,
on-the-record conflict over defense strategy, Burton had to
take the position that the “only reasonable inference to be
drawn from his [statements] is that he wanted to defend
against the state’s case.” Id. at 1026 (internal quotation
marks omitted). Under this demanding burden, if the
evidence shows that his actions were consistent with an intent
to delay for delay’s sake, he fails to meet his burden and
loses.

   By contrast, the Sixth Amendment inquiry places the
burden of proof on the State and requires the court to
“examine the events preceding the motion, to determine
whether they are consistent with a good faith assertion of the
Faretta right.” Fritz, 682 F.2d at 784. If the evidence shows
44                    BURTON V. DAVIS

that the petitioner’s actions were consistent with an intent to
delay for legitimate reasons (such as a conflict with counsel
as to the adequacy of pretrial investigation), the State fails to
meet its burden and loses.

    Given that the State bears the burden of proving that a
defendant’s Faretta motion was a delay tactic, it would be
manifestly unfair to bind Burton to an adverse factual
determination made in proceedings in which he bore the
burden of proof and the State got the benefit of the doubt.

        b. The proper legal standard was not applied

    In addition to placing the burden of proof on Burton, the
California Supreme Court never considered the timeliness of
Burton’s Faretta motions under the proper legal standard. In
Fritz, we described the proper inquiry as follows:

        In determining whether a defendant’s request
        to defend himself is a tactic to secure delay,
        the court may, of course, consider the
        resulting effect of delay. A showing that a
        continuance would be required and that the
        resulting delay would prejudice the
        prosecution may be evidence of a defendant’s
        dilatory intent. . . . The inquiry, however,
        does not stop there. The court must also
        examine the events preceding the motion, to
        determine whether they are consistent with a
        good faith assertion of the Faretta right and
        whether the defendant could reasonably be
        expected to have made the motion at an earlier
        time.
                      BURTON V. DAVIS                         45

682 F.2d at 784–85. Fritz thus requires courts to “consider
the totality of the circumstances leading up to [the] Faretta
motion and the effect that granting the motion would have
had on the proceedings.” Avila, 298 F.3d at 753.

    Neither the referee nor the California Supreme Court
considered any of these factors. Of course, there is no reason
why they should have—the court was deciding a Frierson
claim, not deciding whether a Faretta motion was timely.
Indeed, the California Supreme Court even emphasized that
it would consider the referee’s findings “only insofar as they
are relevant to [the court’s] analysis of Burton’s claim that he
was denied the right to present his desired defense under
Frierson.” In re Burton, 147 P.3d at 1019.

    Whatever their reasons, the bottom line is that the
California courts never considered the timeliness of Burton’s
Faretta requests under the proper inquiry. It was thus not
only appropriate but necessary for the district court to
conduct the proper inquiry in the first instance. See Fritz,
682 F.2d at 784–85 (holding, under former § 2254(d)(6), that
the state court’s finding that Fritz’s Faretta motion “was a
tactic to delay his scheduled trial” was not entitled to a
presumption of correctness because the state court did not
“ma[ke] an express inquiry into Fritz’s purpose, . . . focusing
instead on the nature of the Faretta right and on Fritz’s ability
to waive knowingly his right to counsel” (citation and internal
quotation marks omitted)); cf. Pierce v. Cardwell, 572 F.2d
1339, 1342 (9th Cir. 1978) (holding that it was necessary for
the district court to conduct an evidentiary hearing because
“certain statements by the [state] trial judge . . . create[d]
doubt as to whether he applied the correct test in determining
whether Pierce had waived his rights after requesting an
attorney”).
46                    BURTON V. DAVIS

    To be clear, we do not hold that Burton’s Frierson
proceedings were inadequate to resolve his Frierson claim;
we only hold that the Frierson proceedings were inadequate
to resolve his Faretta claim. A state court hearing may be
full, fair, and adequate as to one issue, but not full, fair, and
adequate as to another. The Seventh Circuit’s decision in
Allen v. Buss, 558 F.3d 657 (7th Cir. 2009), illustrates this
point. Allen, the petitioner, sought state postconviction relief
on the ground that his execution was prohibited by Atkins v.
Virginia, 536 U.S. 304 (2002). Id. at 662. The Indiana
Supreme Court rejected the Atkins claim, reasoning that
because the trial court had given little weight to Allen’s claim
of mental disability as a mitigating factor, Allen had already
“had a full and fair opportunity to litigate the issue of whether
he is mentally retarded” for Atkins purposes. Id. (citation and
internal quotation marks omitted). On federal habeas review,
the State maintained that “the Indiana courts found Allen to
be not mentally retarded and . . . that such findings are
presumed correct on habeas review.” Id. at 663.

     The Seventh Circuit disagreed. It noted, first, that “the
trial court’s analysis makes clear that it engaged in a
substantively different inquiry from that mandated by
Atkins.” Id. It then noted that the state’s sentencing order did
not conclude that Allen was not mentally disabled; it instead
found that Allen’s evidence showed “a very slight mitigating
factor” that was insufficient to overcome other aggravated
circumstances. Id. Thus, the court concluded, “Because the
Indiana state courts never considered Allen’s evidence using
the proper Atkins inquiry (which would have required them
to apply the appropriate standard for mental retardation), it is
objectively unreasonable to conclude that Allen had a ‘full
and fair’ hearing on his Atkins claim.” Id. at 664.
                      BURTON V. DAVIS                        47

    Just as the state court failed to consider Allen’s Atkins
claim under the proper inquiry, the California Supreme Court
has never considered the timeliness of Burton’s Faretta
requests under the proper inquiry. Nor can we assume that
the California Supreme Court implicitly did so, for it was
deciding Burton’s Frierson claim, not his Faretta claim, and
thus had no reason to consider the required factors outlined in
Fritz.

    No California court has ever considered Burton’s Faretta
claim under the proper federal standard. Because we only
presume a state court’s findings to be correct if the test used
to reach those findings was correct, see Fritz, 682 F.2d at
785; Pierce, 572 F.2d at 1342, Burton was entitled to have the
district court resolve the timeliness of his Faretta claim under
the proper substantive inquiry.

       c. Key aspects of the record were not considered

    Not only did the California Supreme Court not resolve the
timeliness of Burton’s Faretta motions under the proper legal
standard; it also declined to consider facts material to the
federal timeliness rule. “Failure to consider key aspects of
the record is a defect in the fact-finding process.” Taylor v.
Maddox, 366 F.3d 992, 1008 (9th Cir. 2004).

    In Frierson, the California Supreme Court held that a
capital defendant’s trial counsel is required to comply with a
defendant’s clearly expressed desire to present a guilt-phase
defense, at least where there is credible evidence to support
that defense. 705 P.2d at 403. In Burton’s case, because
there was no “clear and express conflict over defense
strategy” on the trial court record, In re Burton, 147 P.3d at
1021, Burton faced a steep uphill battle. He had to prove that
48                    BURTON V. DAVIS

his statements to Slick and Kleinbauer, together with his
statements on the record—including his four Faretta
motions—amounted to a clear, open, and unequivocal
expression of his desire to present a defense. Id. at 1021–29;
see id. at 1028 (“[W]e reiterate that a defendant must clearly
and openly—and, thus, unequivocally—express a desire to
present a particular defense in order to establish a violation of
Frierson.”). In order to show that his Faretta requests
amounted to an unequivocal expression of his desire to
present a defense, Burton had to prove that such a desire was
“the only reasonable inference to be drawn” from his in-court
statements. Id. at 1026 (emphasis added) (internal quotation
marks omitted).

    In contrast to the Faretta timeliness inquiry, where the
defendant’s purpose is all that matters, under Frierson it is
defense counsel’s understanding of the defendant’s wishes
that matters. See id. at 1028–29 (explaining that the purpose
of the clear-expression requirement is to “provide[] counsel
with the necessary signal of the defendant’s wishes
concerning his or her defense” and to “reduce[] the likelihood
of extensive after-the-fact debate as to what those wishes
might have been” (emphasis added)). Accordingly, the key
issue on Burton’s Frierson claim was not whether Burton
wanted to present a defense or whether he wanted to represent
himself for other legitimate reasons; it was whether Slick was
on notice that Burton wanted to present a defense. Frierson
and Faretta recognize different interests defendants have. A
defendant may admire his attorney for his skill but disagree
with the strategy; that is a Frierson problem, but not a Faretta
problem. On the other hand, a defendant may agree with his
attorney on the strategy but believe the attorney is lazy or
incompetent; that is a Faretta problem, but not a Frierson
problem.
                     BURTON V. DAVIS                        49

    That only Frierson was at issue in Burton’s state
postconviction proceedings is borne out by the questions the
California Supreme Court posed to the referee. All of the
questions addressed, in one way or another, whether Burton
put Slick on notice that he wanted a guilt phase defense.
None of the questions addressed Burton’s subjective desire to
represent himself. Indeed, none of the questions required any
determination of Burton’s state of mind—his intentions, his
purpose, his good or bad faith. Rather, the questions focused
on what Burton told Slick, what Slick knew or believed, and
what Slick heard Burton tell the trial judge on the record. For
example, the court asked the referee:

       1. Did petitioner give attorney Ron Slick . . .
          the names of witnesses he believed should
          be interviewed and tell Slick that those
          witnesses could support a guilt phase
          defense or defenses? . . .

       2. Did petitioner tell Slick that petitioner’s
          purported confession had been falsified?
          ...

       6. Did Slick have reason to believe that
          petitioner’s in court requests to represent
          himself were made for the purpose of
          delaying trial, rather than dissatisfaction
          with Slick’s trial strategy?

Id. at 1018–19 (emphasis added).

    The referee apparently got the message. At the hearing,
Burton testified that Kleinbauer was not the first person who
told him that he could demand to represent himself. When
50                    BURTON V. DAVIS

the State’s attorney asked Burton when he had first learned
that he could do so, Burton’s attorney objected to the question
as irrelevant and beyond the scope. The referee agreed: “I
just continue to fail to see the relevance there. . . . Advice he
got from persons other than Kleinbauer seems to . . . me to be
very irrelevant.” The referee may very well have been right
that the timing of when Burton learned that he could seek to
represent himself was irrelevant to the Frierson claim. We
express no opinion on that issue. But surely such evidence
would be relevant to determining whether Burton’s request to
represent himself was made in good faith. See Fritz, 682 F.2d
at 784.

    Just as the referee excluded evidence relevant to the
Faretta timeliness inquiry, the California Supreme Court
disregarded such evidence when it was raised by Burton. For
example, even though Burton’s statements to the trial judge
suggested that Burton was interested in pursuing additional
investigation of his case, the court found those statements
irrelevant to its analysis under Frierson because Burton
“never expressed a desire to Slick that any particular defense
be presented.” In re Burton, 147 P.3d at 1028. The court
then added:

        Burton instead seemed focused on
        investigating all possible avenues of defense,
        including defenses of alibi and mistaken
        identification, but clearly and openly
        expressed a desire only that all of these
        investigations be completed before trial.
        Frierson, however, does not require that an
        attorney defer to a client’s wishes as to the
        scope or duration of pretrial investigation.
        The reasonableness of the attorney’s
                      BURTON V. DAVIS                        51

       investigation is . . . , as the parties concede,
       beyond the scope of the order to show cause.

Id. Once again, the court may well be right that an attorney-
client dispute over the reasonableness of pretrial investigation
is irrelevant to a Frierson claim. But it can hardly be denied
that a conflict over the scope of pretrial investigation is
relevant to the purpose-to-delay question under Faretta. See
Armant, 772 F.2d at 554 (finding no evidence of purpose to
delay where Armant complained of difficulties with his
attorney, including his attorney’s failure to subpoena a
witness and give him a copy of the preliminary hearing
transcript); Fritz, 682 F.2d at 785 (remanding to the district
court for an evidentiary hearing because the state court had
not adequately developed facts material to the purpose-to-
delay inquiry, including “when it became clear that Fritz and
[his trial counsel] had irreconcilable differences”).

    This was not the only instance in which the court
discarded facts that may have been irrelevant to the Frierson
inquiry but that were clearly relevant to the Faretta inquiry.
See, e.g., In re Burton, 147 P.3d at 1024 (“Kleinbauer’s
recollection of Burton’s statements . . . does not indicate that
he clearly expressed a desire to present a defense as opposed
to a desire for further investigation before a final tactical
decision could be made.”); id. at 1025 (rejecting argument
that Burton’s Faretta requests constituted a clear request to
present a defense because “his comments were mostly
directed to the question whether counsel had adequately
investigated”). Perhaps most notably, the court even
affirmatively found that “[t]he record . . . supports
Kleinbauer’s testimony that Burton was dissatisfied with
Slick.” Id. at 1023. Although this would surely be relevant
to the Faretta inquiry, see Fritz, 682 F.2d at 785, the
52                   BURTON V. DAVIS

California Supreme Court dismissed it, noting that
“Kleinbauer’s testimony, however, does not support Burton’s
claim that he openly expressed a desire to present a defense,
nor does it undermine Slick’s testimony that he had discussed
trial strategy with Burton.” In re Burton, 147 P.3d at 1023.

    In any event, even if the California Supreme Court had
considered evidence going to Burton’s actual reasons for
seeking to represent himself, the process would still have
been unfair to Burton. Because Burton’s state of mind was
not directly relevant to his Frierson claim and was not
submitted as an issue for the referee to decide, Burton was not
given fair notice that the Frierson proceedings would
effectively decide his Faretta claim.             Under these
circumstances, we cannot say that the Frierson proceedings
gave Burton a full, fair, and adequate hearing on the
timeliness of his Faretta requests. See Lankford v. Idaho,
500 U.S. 110, 121 (1991) (fair notice is “the bedrock of any
constitutionally fair procedure”).

    The State’s arguments fail to convince us that the
Frierson proceedings were adequate to resolve the timeliness
of Burton’s Faretta requests. The State first argues that it
was Burton who, in his state habeas petition, “placed the
question of his actual motivation in seeking self-
representation at issue.” True, Burton’s petition did allege
“that [he] had sought on four occasions during the trial to
discharge his attorney and represent himself because of
Attorney Slick’s deficiencies.” In re Burton, 147 P.3d at
1017 (citation omitted). But in context, that allegation was
clearly intended to support Burton’s primary allegation that
“both Slick and the trial court knew the attorney’s actions
were contrary to Petitioner’s express wishes.” Id. (internal
quotation marks omitted). That is, Burton was alleging that
                      BURTON V. DAVIS                         53

his four requests to discharge Slick and represent himself
because of Slick’s deficiencies constituted his “express wish”
to put on a defense. The California Supreme Court clearly
understood this context, as it framed its sixth reference
question with regard to what Slick had reason to believe
about Burton’s motives in asking to represent himself.

     The State also points to two instances in the reference
hearing that, it claims, show that Burton “had a full and fair
opportunity at the reference hearing to litigate the issue of his
actual purpose in requesting self-representation.” In the first,
Burton’s attorney asked Kleinbauer whether Burton had told
her “that he wanted to represent himself in order to delay the
trial,” to which Kleinbauer answered that he had not. (Just
before this testimony, Kleinbauer testified that Burton had
told her that “the pace of the investigation, the fact that there
was more to do, was one of the factors that led to his
dissatisfaction [with Slick].”) In the second, Burton was
asked on direct whether he told Slick about his reasons for
seeking self-representation, to which Burton answered that he
had told Slick the reason was “because the investigation in
my case wasn’t completed.”

    But these questions only show that some facts that would
have been relevant to Burton’s Faretta claim were developed;
this falls far short of showing that the facts were fully
developed such that Burton received a full, fair, and adequate
hearing on that claim. Cf. Fritz, 682 F.2d at 785 (state court’s
purpose-to-delay finding not entitled to a presumption of
correctness even though “much of the evidence adduced at
the [state court] hearings is pertinent to Fritz’s motivation”).
Even as we acknowledge that some Faretta-relevant facts
were developed in the reference hearing, the State has not
shown that any of these material facts were actually
54                     BURTON V. DAVIS

considered by the California Supreme Court. Quite to the
contrary, the court expressly declined to consider such
evidence. See, e.g., In re Burton, 147 P.3d at 1028
(acknowledging that Burton “seemed focused on
investigating all possible avenues of defense” but concluding
that “[t]he reasonableness of the attorney’s investigation is
. . . , as the parties concede, beyond the scope of the order to
show cause”).

                            * * *

    To summarize, we conclude that the district court was
entitled to determine Burton’s purpose in seeking to represent
himself. We reach this conclusion for two independent
reasons. First, “[t]here was . . . no relevant state court finding
to which deference was due under 28 U.S.C. § 2254(d).”
Chacon, 36 F.3d at 1465; see 28 U.S.C. § 2254(d)(1) (1994).
The California Supreme Court only found that Slick had
“reason to believe” Burton’s purpose was to delay trial; it did
not and, in fairness to Burton, could not find that Burton
actually intended to delay trial for the mere sake of delay.

    Second, the Frierson proceedings before the California
Supreme Court did not afford Burton a full, fair, and adequate
hearing on the timeliness of his Faretta requests. See
28 U.S.C. § 2254(d)(2), (d)(6) (1994). A full, fair, and
adequate hearing would have placed the burden of proof on
the State, not Burton; would have afforded Burton notice that
he was litigating his actual purpose in seeking to represent
himself; and would have deemed relevant evidence of what’s
going on in Burton’s mind, not just “what’s going on in
Slick’s mind.” More fundamentally, a full, fair, and adequate
hearing would have applied the actual inquiry required for
resolving the timeliness of Faretta requests. See Fritz,
                     BURTON V. DAVIS                        55

682 F.2d at 785 (state court’s purpose-to-delay finding not
entitled to a presumption of correctness under § 2254(d)(6) in
part because state courts made no “inquiry into Fritz’s
purpose”); id. at 784–85 (setting out the proper inquiry); cf.
Allen, 558 F.3d at 663. The State does not contest that the
California Supreme Court applied an entirely different
inquiry, and we find its arguments that Burton was on notice
that he was litigating two claims for the price of one wholly
unpersuasive. To the extent the California Supreme Court’s
decision on Burton’s Frierson claim can be read as
determining the ultimate factual issue of Burton’s intent in
asking to represent himself, that determination is not entitled
to a presumption of correctness.

                              V

    Having determined that the district court was not bound
by any relevant state court finding, we now review the district
court’s determination of the timeliness of Burton’s Faretta
requests. A request to represent oneself must be accepted so
long as the request is unequivocal, timely (i.e., made before
the jury is empaneled), and not intended to secure a delay in
the proceedings. Armant, 772 F.2d at 555 (citing Fritz,
682 F.2d at 784). The State does not dispute that Burton’s
requests were unequivocal and made before the jury was
empaneled; thus, the requests were “timely as a matter of law
unless [they were] a tactic to secure delay.” Id.

    Based on its own review of the record evidence, the
district court concluded that Burton’s “stated reasons for
asserting his right to self-representation were legitimate and
not made solely for the purpose of delay.” Aside from the
State’s argument, which we have already rejected, that the
district court was bound by the California Supreme Court’s
56                    BURTON V. DAVIS

factual findings, the State does not contend that the district
court’s finding was erroneous. Because, however, granting
the writ means sending this case for retrial nearly thirty-two
years after the original trial—a formidable task—we review
the district court’s finding on the merits even though the State
has waived the issue.

    We review a district court’s determination that a Faretta
motion was not a delay tactic for clear error. See Maxwell,
673 F.2d at 1036 (reviewing a “district court’s determination[
that a motion was not a delay tactic] as [a] finding[] of fact,
which, although based solely on documentary evidence, will
be set aside only if clearly erroneous”). Under that standard,
we will reverse the district court’s findings of fact only if we
have “a definite and firm conviction that a mistake has been
made.” Sepulveda v. Pac. Mar. Ass’n, 878 F.2d 1137, 1139
(9th Cir. 1989).

     The district court did not clearly err in finding that
Burton’s Faretta requests were made for legitimate, not
purely dilatory, reasons. As the district court correctly noted,
it is not enough for the State to show the defendant would
need a continuance in order to prepare his own defense. See
Fritz, 682 F.2d at 784. Of course, the district court may
consider whether trial would be delayed and whether such a
delay would prejudice the prosecution, as well as whether the
petitioner could reasonably have been expected to make the
Faretta motion at an earlier time. Id. at 784–85. But these
factors are not dispositive. District courts must consider the
totality of the circumstances to determine whether the
petitioner’s sole purpose in seeking to proceed pro se was to
delay the proceedings. See Avila, 298 F.3d at 753.
                      BURTON V. DAVIS                         57

    The district court found that “Petitioner’s requests to be
allowed to proceed pro se were based on his complaints that[]
Mr. Slick was proceeding too fast; further investigation still
needed to be conducted; and Mr. Slick had barely met with
him since the case began.” If these were indeed Burton’s
reasons, they were certainly legitimate reasons. A desire to
have one’s case fully investigated is clearly a good reason for
wanting to delay a capital murder trial. See Armant, 772 F.2d
at 554,556 & n.1 (concluding that “nowhere in the record is
there even a suggestion that Armant made this request for the
purpose of delay” where Armant complained that his attorney
failed to subpoena a witness and provide him with a copy of
a hearing transcript). And so is dissatisfaction with counsel.
See Moore, 108 F.3d at 262, 264 (concluding that “the record
d[id] not suggest” that “Moore’s request was a tactic for
delay” where Moore had told the trial judge “that he had
doubts about his court-appointed lawyer” and had engaged in
a lengthy discussion with the judge “about his dissatisfaction
with his lawyer and his desire to represent himself”); Fritz,
682 F.2d at 785 (remanding for the district court to determine
“when it became clear that Fritz and [his counsel] had
irreconcilable differences”).

     The record firmly supports the district court’s finding that
these were in fact Burton’s reasons. The best evidence of
Burton’s reasons for asking to represent himself is the
transcript of Burton’s four Faretta motions. When Burton
first moved to represent himself, he 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
58                   BURTON V. DAVIS

       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.

These are the very reasons noted by the district court: “Mr.
Slick was proceeding too fast; further investigation still
needed to be conducted; and Mr. Slick had barely met with
him since the case began.”

    When Burton renewed his request the next day, his
dissatisfaction with Slick was obvious. He told the court that
Slick’s “lack of interest” was “really out of hand” and that
“[t]his is my reason for wanting to represent myself.” He also
told the court, “I haven’t even seen Ron Slick. I see Ron
Slick every time I come to the court and I am tellin’ him the
real, but all I am gettin’ is the fake, the frame.” He also
reiterated his belief that his case had not been fully
investigated:

       I am—this is not my crime . . . . I want to
       investigate my case and find out all about the
       things, because the investigator that
       investigated this case told me personally that
       something is shaky about my case and that
       Ron is not really on my side for this case and
       she wanted to be with me, to work with me,
       because she know that it is something about
       this case that is very shaky.

   Burton was persistent. Six days after his second request,
he renewed his request again. He objected “to being
                     BURTON V. DAVIS                        59

represented by Mr. Ron Slick” and moved “to resubmit the
conflict of interest motion filed verbally on Mr. Slick.”

    A year and a half after the trial, Burton signed a
declaration in connection with his motion for a new trial.
Burton stated that Slick only came to see him once, for fifteen
minutes, when he was incarcerated at the county jail. Slick
did come to visit him in the courthouse before hearings, but
those meetings lasted no more than ten minutes. Burton
recalled that when he told Slick that he did not commit the
crime and that he did not confess, Slick said he did not
believe Burton. Burton stated that August 10 was his first
opportunity to make a statement to the court, and that on that
day he told Slick that he felt the case was not sufficiently
prepared to go to trial. He explained, “I did know from our
investigator that a witness had been located who gave a
different description of the person who did the shooting of
Mr. and Mrs. Khwaja, and I wanted to know why that witness
had not been subpenaed [sic] to come to court.”

     Burton’s statements are corroborated by other evidence in
the record. At the reference hearing, Slick testified that he
hired Kristina Kleinbauer to investigate the case and gave her
a list of tasks, including numerous witnesses to interview.
Those witnesses included Otis Clements, family members,
probation officers, parole officers, and other people who
might have known Burton. Slick testified, further, that he
considered the tasks that he had outlined for Kleinbauer to be
necessary to the pretrial investigation of Burton’s case. Yet
when asked whether interviews of family members, probation
officers, parole officers, and others had been conducted at the
time he announced ready for trial, Slick testified, “I think
not.” And when asked if, at the time he announced ready for
trial, “there really had been no investigation into the
60                       BURTON V. DAVIS

background of Otis Clements,” Slick answered, “I’m sure
that’s correct, yes.” Kleinbauer’s testimony was consistent
with Slick’s—she testified that by the time trial began she
had not yet obtained a background history of Otis Clements
and, in fact, had not done any investigation regarding
Clements. Thus, there is ample evidence to support the
district court’s finding that “[n]o investigation, beyond
reading the police reports, had been done either into
Clements’s statements or his background.”

    Slick told Burton’s trial judge just the opposite. When
Burton first asked to represent himself, Slick told the court
that he had “investigated this case to the best of [his] ability.”
When Burton asked again the next day, Slick told the court,
“I can only indicate to the court that I am prepared for trial
and I am as prepared as I know how to be. I see no reason to
do anything other than try the case.” The judge then asked,
“I take it that you have investigated his allegation that he is
being framed by the co-defendant, Mr. Clements, in this
case?” “Yes, I have,” Slick replied.

    That the investigation was complete was news to
Kleinbauer. She said that when she handed Slick a report on
August 10—the day Burton first asked to proceed pro
se—she had no idea that the trial was already underway. In
fact, she said, “[she] was still actively engaged in the
investigation of the case when [she] learned that Mr. Burton
had been convicted of capital murder and the jury had handed
out the death penalty.”11


  11
     We affirm the district court’s crediting of these statements, which
Kleinbauer made in one of her declarations during the course of Burton’s
postsentencing litigation.    While the referee did conclude that
Kleinbauer’s testimony at the reference hearing was “virtually non-
                          BURTON V. DAVIS                              61

     Burton was clearly aware that his case had not been fully
investigated. This is apparent, first of all, from Burton’s in-
court statements. It is also apparent from Kleinbauer’s
testimony at the reference hearing. The California Supreme
Court credited Kleinbauer’s testimony that “Burton had told
her he was not ready to go to trial and that he was dissatisfied
with Slick because the trial seemed to be rushing forward.”
Id. at 1026 (alteration and internal quotation marks omitted).
It also credited her statement in a 1993 declaration that she
had talked with Burton before the trial and “had instructed
Burton to tell Slick that he was not ready for trial, and that the
trial should take place next year some time, after all the
investigation was done.” Id. (emphasis added) (internal
quotation marks omitted). These findings may have been
insufficient to establish a Frierson claim, but they are enough
to establish that Burton had legitimate reasons for seeking to
represent himself.

    The record also corroborates Burton’s statements that
there was a breakdown in the attorney-client relationship.
Slick testified that Burton was “angry with me. He didn’t like
me, probably didn’t like anything about me.” When he told
Burton early on that they were “going to lose the [case],”
Burton “did not like it,” and “from then on, there was never
a good conversation.” According to Slick, Burton’s attitude
became “evasive and uncooperative” and Slick couldn’t
“really get meaningful communication with him.” When


existent” and that Kleinbauer “tried to shade her answers” at the reference
hearing in Burton’s favor, the referee nevertheless relied on Kleinbauer’s
statements in her postsentencing declarations, noting that “[those]
declarations were accurate when made.” The referee never concluded that
these statements, or any of Kleinbauer’s other statements that we discuss,
lacked credibility.
62                    BURTON V. DAVIS

Kleinbauer was asked at the reference hearing whether
Burton had told her why he wanted to represent himself, she
answered that “[h]e felt dissatisfied with his attorney”
because “there was more investigation that needed to be
done.” For this reason, she testified, Burton asked her “what
he could do.” She did not know what to do, so she called Jeff
Brodey, a lawyer.

    Kleinbauer wrote down what Brodey told her, and her
notes are in the record. These notes are valuable, because
they provide hard proof that verifies Burton’s and
Kleinbauer’s statements that Burton complained to
Kleinbauer about Slick. The notes tell Burton to demand to
be heard on the record, tell him that he has a constitutional
right to represent himself under a case called Faretta, and tell
him not to accept Slick as co-counsel because he has a
“conflict of interest” with Slick and wants his attorney
removed.

    In sum, the trial court transcript and the evidence at the
reference hearing demonstrate, in the words of the district
court, “that [Burton] wanted to be free from having Mr. Slick
as his attorney, and that he had a compelling basis for that
desire.” The district court thus did not clearly err in finding
that Burton’s Faretta requests were made for legitimate
reasons.

    According due deference to the district court’s factual
findings, we affirm the district court’s conclusion that
Burton’s Faretta requests were timely as a matter of law.
Maxwell, 673 F.2d at 1036. Because “[a]n improper denial of
a request to proceed pro se . . . is not amenable to harmless
error analysis,” the Sixth Amendment requires that Burton
receive a new trial. United States v. Maness, 566 F.3d 894,
                      BURTON V. DAVIS                        63

896 (9th Cir. 2009) (per curiam) (internal quotation marks
omitted).

                              VI

    Under our precedents, there is little question that the
California Supreme Court’s 1989 decision in Burton’s case
was contrary to federal law. The California Supreme Court
expressly declined to apply the purpose-to-delay inquiry we
announced in Fritz, and we have held that Fritz is binding
federal law for purposes of former § 2254. See, e.g., Moore,
108 F.3d at 264.

    The more difficult question here is whether the district
court was bound by the California Supreme Court’s finding,
seventeen years later and in the context of a different claim,
that Burton’s lawyer had reason to believe Burton was
motivated by delay. We hold that the district court was not
bound by this finding. The California Supreme Court never
made a finding on Burton’s actual motives and, even if it had,
it improperly shifted the burden of proof to Burton, applied
the wrong legal inquiry, and failed to consider evidence that
was highly relevant to the correct inquiry. Under these
circumstances, we cannot say that Burton received a full, fair,
and adequate hearing on his Faretta claim.

    We accordingly affirm the district court’s determination
that Burton’s Faretta motion was timely and that his
conviction and sentence must be set aside. The State shall,
within the time prescribed by the district court, either release
Burton or grant him a new trial.

   AFFIRMED.
64                       BURTON V. DAVIS

O’SCANNLAIN, Circuit Judge, dissenting:

    The Court affirms the grant of a petition for writ of
habeas corpus in this death penalty case by holding that the
California courts did not determine—in a full, fair, and
adequate hearing—the merits of Andre Burton’s request for
self-representation during his murder trial. I respectfully
disagree because I am not persuaded that the California
Supreme Court decision was contrary to the Constitution and
laws of the United States. Rather, under the version of
28 U.S.C. § 2254 applicable before the enactment of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), habeas corpus should have been denied.

                                    I

                                   A

    On February 25, 1983, during a robbery, Burton shot
Anwar Khwaja in the forehead and in the eye, then shot
Khwaja’s mother, fatally, in the chest. California v. Burton,
771 P.2d 1270, 1274 (Cal. 1989). Burton was “smiling or
laughing contentedly” while committing these crimes and
“chuckled” while escaping. Id.

    Beginning on August 10, 1983, the day trial was set to
start, Burton made four requests to represent himself pursuant
to Faretta v. California, 422 U.S. 806 (1975).1 See In re



  1
     Faretta established that “a defendant in a state criminal trial has a
constitutional right to proceed without counsel when he voluntarily and
intelligently elects to do so.” 422 U.S. at 807. Subsequently, both the
Ninth Circuit and the California Supreme Court held that the invocation
                          BURTON V. DAVIS                              65

Burton, 147 P.3d 1014, 1024–25 (Cal. 2006). The trial court
denied each of those four Faretta requests as untimely. See
id. The jury convicted Burton of murder and three counts of
robbery, and the penalty was fixed at death. Id. at 1017.

    After the California Supreme Court affirmed Burton’s
convictions and death sentence, Burton, 771 P.2d at 1291,
Burton filed state and federal habeas petitions. In state
habeas proceedings, Burton alleged that he was denied the
right to present a guilt-phase defense under California v.
Frierson, 705 P.2d 396 (Cal. 1985).2 To evaluate Burton’s
Frierson claim, the California Supreme Court appointed a
referee to hear evidence and to make findings of fact in
response to various questions, including: “Did [Burton’s
attorney, Ronald Slick] have reason to believe that
petitioner’s in court requests to represent himself were made
for the purpose of delaying trial, rather than dissatisfaction
with Slick’s trial strategy?” Burton, 147 P.3d at 1018.

    The referee, a superior court judge appointed for this task,
heard testimony from 15 witnesses over 14 court days. See
id. at 1016, 1019. As part of his findings of fact, the referee
concluded that Burton “tried to delay the [trial] by seeking to
represent himself.” In 2006, the California Supreme Court
reviewed the referee’s report, accepted the referee’s factual
finding that Burton’s Faretta motions “reflected a


of that right must be timely. See Maxwell v. Sumner, 673 F.2d 1031, 1036
(9th Cir. 1982); California v. Windham, 560 P.2d 1187, 1191 (Cal. 1977).
 2
   Frierson established that, “[g]iven the magnitude of the consequences
that flowed from the decision whether or not to present any defense at the
guilt/special circumstance phase, . . . counsel could [not] properly refuse
to honor defendant’s clearly expressed desire to present a defense at that
stage.” Frierson, 705 P.2d at 403 & n.4 (relying in part on Faretta).
66                         BURTON V. DAVIS

dissatisfaction with Slick’s failure to delay the trial,” and
denied habeas relief. Id. at 1026, 1030.

    In federal habeas proceedings, the district court reviewed
the state court record de novo and granted the writ, holding,
contrary to the California Supreme Court, that Burton’s
request to represent himself was not made for the purpose of
delay.

                                     B

    Whether a petitioner’s request to exercise his right under
Faretta to represent himself at trial is timely is controlled by
Fritz v. Spalding, 682 F.2d 782 (9th Cir. 1982). In Fritz, we
held that “a motion to proceed pro se is timely if made before
the jury is empaneled, unless it is shown to be a tactic to
secure delay.” Id. at 784.3

    As the majority observed, the district court erred when it
treated the determination of Burton’s purpose in seeking to
represent himself as a mixed question of law and fact. Maj.
Op. at 33–34. Burton’s purpose is simply a question of fact,
and the district court owed deference to the state court


 3
   The majority concludes that any pro se representation request is timely,
regardless of whether the defendant had a purpose of delay, as long as
some other permissible purpose for the defendant’s motion can be found.
It claims that Fritz “asks whether the defendant’s actual and sole purpose
was to delay.” Maj. Op. at 41. But Fritz says nothing about the
defendant’s “sole” purpose. Instead, Fritz employs several formulations
to describe the relevant inquiry: a motion is timely unless it is “a tactic to
secure delay,” “unless it was made for the purpose of delay,” or “absent
an affirmative showing of purpose to secure delay.” 682 F.2d at 784.
Clearly, delay must be a purpose of a Faretta motion to make it untimely,
but Fritz does not require delay to be the “sole” purpose.
                         BURTON V. DAVIS                             67

determination of fact unless an exception enumerated in
§ 2254 applies. But then the majority errs when it upholds de
novo review based on its conclusion that the California
Supreme Court did not resolve the merits of the factual
question, see § 2254(d)(1), and that Burton was therefore
denied a full, fair, and adequate state court hearing, see
§ 2254(d)(2), (6).4 Maj. Op. at 33.

    Applying § 2254(d)(1), the majority essentially concludes
that the state courts did not make findings of fact regarding
Burton’s purpose because the California Supreme Court

  4
    Pre-AEDPA 28 U.S.C. § 2254(d) (1994) provided that, in federal
habeas proceedings initiated by a state prisoner,

        [A] determination after a hearing on the merits of a
        factual issue, made by a State court of competent
        jurisdiction in a proceeding to which the applicant for
        the writ and the State or an officer or agent thereof were
        parties, evidenced by a written finding, written opinion,
        or other reliable and adequate written indicia, shall be
        presumed to be correct, unless the applicant shall
        establish or it shall otherwise appear, or the respondent
        shall admit—

        (1) that the merits of the factual dispute were not
        resolved in the State court hearing;

        (2) that the factfinding procedure employed by the State
        court was not adequate to afford a full and fair hearing;
        ...

        (6) that the applicant did not receive a full, fair, and
        adequate hearing in the State court proceeding; . . . .

        [T]he burden shall rest upon the applicant to establish
        by convincing evidence that the factual determination
        by the State court was erroneous.
68                    BURTON V. DAVIS

asked the referee to determine Slick’s belief about Burton’s
purpose rather than asking about Burton’s purpose directly.
Recognizing that the California Supreme Court did make
some potentially relevant findings, the majority seeks to
explain away those findings by arguing that they must be
considered “in context.” The majority thus concludes that the
state supreme court did not give a Faretta answer because it
asked a Frierson question.

    Applying § 2254(d)(2), (6), the majority concludes that
the Frierson proceedings were inadequate to resolve Burton’s
Faretta claim fully and fairly because the state courts
misallocated the burden of proof and because they failed to
consider key aspects of the record and to apply the proper
legal inquiry.

    I respectfully disagree with the majority’s application of
these three provisions.

                               II

                               A

    Contrary to the majority’s opinion, the California courts
did indeed determine the merits of Burton’s purpose in
seeking to represent himself; therefore, § 2254(d)(1) provides
no basis for withholding deference. Rather than focus on the
facts determined by the referee and accepted by the California
Supreme Court, the majority mistakenly focuses on the
context in which those facts were found.

     The majority’s analysis misses the trees for the forest.
                      BURTON V. DAVIS                         69

                               1

     What did the California Supreme Court actually hold with
respect to the factual findings made in Burton’s state habeas
proceedings? There, Burton invoked “statements he made at
trial in the course of his four motions for self-representation.”
In re Burton, 147 P.3d 1014, 1024 (Cal. 2006). In response
to Burton’s arguments, the court did not solely determine
counsel Slick’s impression of Burton’s purpose in invoking
Faretta; it also directly determined Burton’s actual purpose.

    The California Supreme Court addressed both Slick’s
impression and Burton’s actual purpose in three key
paragraphs. The court first recognized that “the referee found
[that] Burton invoked and continued to invoke Faretta solely
in order to delay the trial.” Id. at 1026. It then discussed
Slick’s testimony regarding his belief that Burton’s purpose
was delay:

        According to Slick, Burton consistently said
        on multiple occasions that he was not ready to
        go to trial, but never offered Slick a reason for
        a delay. In Slick’s experience, it is not
        unusual for defendants to prefer to delay trial
        and to give the appearance of being able to
        “wait it out,” and he believed that Burton,
        who was facing a capital trial, was such a
        defendant. Burton thus errs in contending that
        “the only reasonable inference to be drawn”
        from his Faretta motions is that he “wanted to
        defend against the state’s case.”

Id. Thus, the first sentence of this paragraph indicates that
the referee found Burton invoked Faretta solely in order to
70                   BURTON V. DAVIS

delay trial, while the remaining sentences address Slick’s
impression.

    In the second paragraph, the California Supreme Court
discusses other evidence that “corroborates” Slick’s
assessment that Burton’s purpose was delay:

            Slick’s assessment of Burton’s motivation
       was corroborated by other evidence at the
       hearing. Kleinbauer testified that Burton had
       told her he was not ready to go to trial and
       that he was dissatisfied with Slick because
       “the trial seemed to be . . . rushing forward.”
       As a result, Kleinbauer had consulted with
       another lawyer, Jeffrey Brodey, who had
       recommended that Burton invoke his right to
       self-representation if he was not ready for trial
       and that he not settle for cocounsel status.
       Tellingly, Kleinbauer’s notes of this
       conversation nowhere mention Burton’s
       alleged desire to present a defense but say
       instead “tell Ron he’s not ready for trial. July
       25 too soon—next year some time.”
       Kleinbauer further stated in a 1993 declaration
       that she had instructed Burton to tell Slick
       “that he was not ready for trial, and that the
       trial should take place next year some time,
       after all the investigation was done.”
       Kleinbauer herself also felt the case “went to
       trial maybe sooner than it should have.”

Id. Of particular note, I can think of no better example of “a
tactic to secure delay” than an attorney’s recommendation
that a criminal defendant in a capital murder case “invoke his
                     BURTON V. DAVIS                       71

right to self-representation if he was not ready for trial and
that he not settle for cocounsel status.” While this paragraph
may go no further than determining that Slick’s assessment
of Burton’s purpose was corroborated, it does so by pointing
to evidence suggesting that Slick’s assessment was correct,
i.e., that Burton’s actual purpose was delay.

    Even if these first two paragraphs address Slick’s
impression of Burton’s purpose, the third paragraph very
clearly adopts factual findings about Burton’s actual purpose:

       Burton’s conduct and statements further
       confirmed his interest in delay. Burton
       engaged in “game playing” with Dr. Michael
       Maloney, who had been retained by Slick to
       conduct a psychological evaluation of Burton.
       This lack of cooperation is fully consistent
       with a defendant who was interested in delay
       for delay’s sake—a conclusion additionally
       supported by Burton’s observation in his
       declaration in support of his motion for new
       trial that “[i]n my experience in the Los
       Angeles County Jail, persons with death
       penalty cases all tended to have their cases
       continued for longer periods of time.” Finally,
       we note that even the trial court seemed aware
       of Burton’s motivation, advising him during
       the second Faretta motion hearing “that the
       trial is going to go ahead. [¶] I know you
       don’t like the idea, but that’s the idea.” We
       therefore accept the referee’s finding that
       Burton’s Faretta motions reflected a
       dissatisfaction with Slick’s failure to delay the
72                     BURTON V. DAVIS

        trial, not a dissatisfaction with Slick’s trial
        strategy.

Id. (alteration in original).

    In sum, the California Supreme Court first recognized that
“the referee found [that] Burton invoked and continued to
invoke Faretta solely in order to delay the trial.” Id. After
discussing Slick’s impression of Burton’s purpose, the state
supreme court moved beyond Slick’s impression to the actual
purpose, and it determined that “Burton’s conduct and
statements further confirmed his interest in delay.” Id. As
support for that determination, it reasoned that the
“conclusion” that Burton was “a defendant who was
interested in delay for delay’s sake” was “supported by
Burton’s observation in his declaration in support of his
motion for new trial” and was “fully consistent with”
Burton’s engaging in “game playing” with a psychologist
hired by Slick to evaluate Burton. Id. Ultimately, the
California Supreme Court “accept[ed] the referee’s finding
that Burton’s Faretta motions reflected a dissatisfaction with
Slick’s failure to delay the trial, not a dissatisfaction with
Slick’s trial strategy.” Id.

    The referee’s factual findings, as accepted by the state
supreme court, squarely address the merits of Burton’s
purpose in invoking Faretta, and they deserve deference. If
we take the California Supreme Court at face value, we are
left with the clear determination that Burton’s purpose in
making his motion was to delay trial.
                      BURTON V. DAVIS                        73

                               2

    The majority simply ignores the California Supreme
Court’s accepted factual findings. Nowhere does it
acknowledge the California Supreme Court’s recognition that
“the referee found [that] Burton invoked and continued to
invoke Faretta solely in order to delay the trial.” Id. Nor
does it ever grapple with the finding that “Burton’s conduct
and statements further confirmed his interest in delay.” Id.

    To the extent that it does engage with the actual language
of the California Supreme Court opinion, the majority
regrettably misconstrues it. For example, the majority argues
that the state court’s statements about Burton’s “game
playing” and his observation about the typical length of
continuances for death penalty cases “must be read in
context.” Maj. Op. at 37. Those statements were made in a
paragraph that begins with “Burton’s conduct and statements
further confirmed his interest in delay” and concludes with
“We therefore accept the referee’s finding that Burton’s
Faretta motions reflected a dissatisfaction with Slick’s failure
to delay the trial, not a dissatisfaction with Slick’s trial
strategy.” Burton, 147 P.3d at 1026. In context, the state
supreme court was clearly identifying evidence that supported
these two propositions, which are directly concerned with
Burton’s actual purpose.

    Despite its exhortation, the majority prefers to read the
statements completely out of context. The majority claims
that the state court “was identifying evidence that
‘corroborated’ ‘Slick’s assessment of Burton’s motivation,’
which arguably refuted Burton’s argument that ‘the only
reasonable inference to be drawn from his Faretta motions
[wa]s that he wanted to defend against the state’s case.’”
74                   BURTON V. DAVIS

Maj. Op. at 37–38. Yet these propositions—that “Slick’s
assessment of Burton’s motivation was corroborated” and
that Burton erred “in contending that ‘the only reasonable
inference to be drawn’ from his Faretta motions [was] that he
‘wanted to defend against the state’s case’”—were contained
in completely separate paragraphs from the statements about
Burton’s “game playing” and his observation about the
typical length of continuances. See Burton, 147 P.3d at 1026.
When making the statements about “game playing” and
Burton’s observation, the California Supreme Court had
clearly moved from discussing Slick’s impression to
discussing Burton’s actual purpose.

    The majority also ignores another important contextual
clue that the California Supreme Court did directly address
Burton’s purpose: the issue of his actual purpose was a
disputed factual question raised by the Frierson claim before
the California Supreme Court appointed the referee.
Specifically, Burton first placed his actual purpose at issue
when he claimed in his state habeas petition that he “had
sought on four occasions during the trial to discharge his
attorney and represent himself because of Attorney Slick’s
deficiencies.” Id. at 1017. The State responded that “the true
reason Burton had asked the trial court four times to be
allowed to represent himself ‘was to obtain a continuance to
avoid going to trial, not because he wanted further
investigation conducted,’” id. at 1017–18, which Burton
denied in reply, id. at 1018. This factual dispute existed
before the reference hearing, so it is not surprising that the
referee and the California Supreme Court wound up
addressing Burton’s true purpose in seeking to represent
himself.
                     BURTON V. DAVIS                        75

    Thus, the majority’s attempt to explain away the
California Supreme Court’s findings concerning Burton’s
purpose—not merely Slick’s impression of such purpose—by
arguing they must be read “in context,” falls flat. It is clear
that the California Supreme Court determined Burton’s
purpose in invoking Faretta, and that purpose was delay for
delay’s sake.

                              B

    And the California courts indeed afforded Burton a full,
fair, and adequate hearing in determining his purpose in
seeking self-representation.

                              1

    Recall that Burton’s motivation for invoking Faretta was
a contested factual issue before the reference hearing, and
Burton submitted evidence regarding that issue. In addition,
Burton was aware that the California Supreme Court asked
the referee to determine a closely related question: whether
Slick had reason to believe that Burton invoked Faretta in
order to delay trial. Of course, if Burton’s actual purpose was
delay, then that fact makes it much more probable that Slick
had reason to believe that Burton’s purpose was delay. Thus,
it should have been no surprise when the California courts
found a subsidiary fact—that Burton’s actual purpose was
delay—as support for another finding of fact—that Slick had
reason to believe Burton’s actual purpose was delay. Burton
was not deprived of a full, fair, and adequate hearing merely
because the California Supreme Court declined to specify
every question that might possibly be answered in the
reference hearing.
76                     BURTON V. DAVIS

                                2

     None of the majority’s reasons are persuasive.

    First, the state courts did not deprive Burton of a full, fair,
and adequate hearing by misallocating the burden of proof.
We have never held that the burden of proof in a Fritz inquiry
is on the state or that the state must show that the evidence is
not “consistent” with any other purpose than delay. Nor have
we held that a misplaced burden “is reason alone not to apply
the presumption of correctness” and that it would be
“manifestly unfair” to bind Burton to an adverse factual
determination made in proceedings in which he bore the
burden of proof. Maj. Op. at 44–45.

    Moreover, with respect to Burton’s purpose in seeking to
represent himself, there is no indication that the burden of
proof played any role in the state habeas proceedings or that
the State received the benefit of the doubt. In those
proceedings, nowhere did the referee or the California
Supreme Court say that Burton failed to carry his burden with
respect to his Faretta motions. The state courts did not
deprive Burton of a full, fair, and adequate hearing on his
motivation for invoking Faretta by weighing the evidence
and deciding against him.

                                3

     Nor did the state courts deprive Burton of a full, fair, and
adequate hearing by failing to apply the proper legal test or to
consider key parts of the record. Ultimately, these asserted
errors are not errors at all. In Early v. Packer, 537 U.S. 3
(2002) (per curiam), a California appellate court upheld the
trial court’s giving a charge to a deadlocked jury under a
                      BURTON V. DAVIS                       77

state-law rule that differed from the federal rule. Id. at 6–7.
We had concluded that the California appellate court erred in
failing to apply a totality of the circumstances test and to
consider key pieces of evidence:

       [T]he Ninth Circuit charged that the Court of
       Appeal “failed to apply the totality of the
       circumstances test as required by Lowenfield.”
       That was so, the Ninth Circuit concluded,
       because it “simply mentioned three particular
       incidents in its analysis,” “failed to consider”
       other “critical facts,” and “failed to consider
       the cumulative impact” of all the significant
       facts, one of which it “[did] not even mention
       in its analysis.”

Id. at 8–9 (internal alterations and citation omitted). The
Supreme Court noted that the state court had focused on three
particular incidents, but set forth many facts and
circumstances beyond those three incidents. Id. at 9. The
Court rejected our conclusion that the state court failed to
apply the totality of the circumstances test by not considering
certain facts:

       The contention that the California court
       “failed to consider” facts and circumstances
       that it had taken the trouble to recite strains
       credulity. The Ninth Circuit may be of the
       view that the Court of Appeal did not give
       certain facts and circumstances adequate
       weight (and hence adequate discussion); but
       to say that it did not consider them is an
       exaggeration. There is, moreover, nothing to
       support the Ninth Circuit’s claim that the
78                        BURTON V. DAVIS

         Court of Appeal did not consider the
         “cumulative impact” of all the recorded
         events. Compliance with Lowenfield . . . does
         not demand a formulary statement that the
         trial court’s actions and inactions were
         noncoercive “individually and cumulatively.”
         It suffices that that was the fair import of the
         Court of Appeal's opinion.

Id.5

    Here, the majority asserts that the California Supreme
Court failed to apply a “totality of the circumstances” test.
Maj. Op. at 45. Like in Early, the state court’s lack of a
formulary statement that it was applying the Fritz factors
does not render the determination of facts improper if the fair
import of the state court’s decision is that it did consider the
relevant factors. Moreover, the majority asserts that the
California Supreme Court failed to consider various pieces of
evidence that it expressly recited. Maj. Op. at 51–52. Similar
to Early, the state court’s recitation of the facts shows that it
did consider them.

   Therefore, the state-court hearing was full, fair, and
adequate, and the presumption of correctness should apply.6



  5
    Although Early is admittedly a case governed by AEDPA, the Court
made no indication that this part of its analysis was impacted in any way
by AEDPA’s amendments. Consequently, the principles can be applied
to this pre-AEDPA case.
 6
   Given the majority’s conclusion that the state courts did not resolve the
factual dispute on the merits and that Burton was denied a full, fair, and
adequate state court hearing, the majority should not be affirming but
                          BURTON V. DAVIS                               79



rather vacating and remanding for an evidentiary hearing in the district
court. Under pre-AEDPA habeas law:

         An evidentiary hearing in federal habeas proceedings is
         required (1) where the merits of a factual dispute were
         not resolved in state hearings . . . (3) the state’s fact-
         finding procedure was not adequate to afford a full and
         fair hearing; . . . (5) material facts were not adequately
         developed at the state court hearing, for which there is
         no cause or prejudice; or (6) for any reason it appears
         that the state trier of fact did not afford the applicant a
         full and fair hearing on the facts.

Rhoades v. Henry, 638 F.3d 1027, 1041 n.13 (9th Cir. 2011) (citing
Townsend v. Sain, 372 U.S. 293, 312–13 (1963); Keeney v. Tamayo-
Reyes, 504 U.S. 1, 8–11, (1992) (modifying Townsend’s fifth factor)); see
also Ford v. Wainwright, 477 U.S. 399, 410–11 (1986). The Townsend
criteria are the same as the exceptions in §§ 2254(d)(1), (2), (3), (6).
Brewer v. Williams, 430 U.S. 387, 395 (1977). Therefore, the majority’s
conclusion that the presumption of correctness does not apply because of
the exceptions in subsections (1), (2), and (6) also compels the conclusion
that an evidentiary hearing is required.

      An evidentiary hearing is especially appropriate when the federal
district court rejects the state court’s key credibility determinations.
“[Section] 2254(d) gives federal habeas courts no license to redetermine
credibility of witnesses whose demeanor has been observed by the state
trial court, but not by them.” Marshall v. Lonberger, 459 U.S. 422, 434
(1983). Here, the district court, on the basis of a cold documentary record,
rejected the California Supreme Court’s acceptance of the referee’s
credibility determinations, which were based on live observation of the
witnesses’ demeanors.

    The “reexamination of state convictions that the modern writ entails
implicates values of finality and comity that are important to federalism
and our system of criminal justice.” Gage v. Chappell, 793 F.3d 1159,
1167 (9th Cir. 2015) (citing Coleman v. Thompson, 501 U.S. 722, 731
(1991); McCleskey v. Zant, 499 U.S. 467, 491 (1991); Kuhlmann v.
Wilson, 477 U.S. 436, 453 n. 16 (1986)). Given these important concerns
80                       BURTON V. DAVIS

                                   III

     For the foregoing reasons, I respectfully dissent.




and the rejection of several key state-court credibility determinations,
shouldn’t the district court at least observe live witnesses itself before
forcing the state to retry a 32-year-old capital murder case?
