                                                                             FILED
                            NOT FOR PUBLICATION                               OCT 17 2013

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ERIC WILTON BURTON,                               No. 11-56873

              Petitioner - Appellant,             D.C. No. 3:08-cv-00325-LAB-
                                                  POR
  v.

MATTHEW L. CATE, Secretary CDCR,                  MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                        Argued and Submitted July 10, 2013
                               Pasadena, California

Before: WARDLAW, BYBEE, and NGUYEN, Circuit Judges.

       Eric Wilton Burton appeals the district court’s judgment denying his petition

for habeas corpus. The district court granted Burton’s application for a certificate

of appealability with respect to his two claims that the state trial court violated his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
right to self-representation under Faretta v. California, 422 U.S. 806 (1975). We

affirm.

      Burton has presented at least five distinct Faretta claims. Burton’s federal

habeas petition asserts that the state trial court violated his Sixth Amendment right

to represent himself by failing to rule on (1) his oral Faretta motion on March 16,

2005, and (2) his handwritten Faretta motion on June 1, 2005. On direct appeal

before the California Court of Appeal, Burton alleged violations of his right to self-

representation based on the trial court’s treatment of (3) his oral Faretta request on

March 24, 2005, (4) his oral Faretta request on June 1, 2005, and (5) his written

Faretta request filed on July 7, 2005. In a reasoned opinion, the California Court

of Appeal rejected Burton’s contentions. Notably, Burton did not mention on

direct appeal either of the two claims that have been certified for our review—(1)

the March 16 oral Faretta motion or (2) the June 1 handwritten Faretta motion.

Consequently, the reasoned decision issued by the California Court of Appeal did

not address these two claims.

      In the meantime, Burton filed a state habeas petition alleging in more

general terms that the state trial court violated his right to self-representation by

failing to rule on multiple Faretta motions. The California Court of Appeal

summarily denied Burton’s habeas petition on the same day that it issued the


                                            2
reasoned opinion addressing his direct appeal. The California Supreme Court then

summarily denied Burton’s petition for review of his direct appeal and his habeas

petition in separate orders.

      Assuming that Burton exhausted the two claims at issue here by contending

in general terms in his state habeas petition that the trial court failed to rule on his

multiple Faretta motions, we reach the merits of Burton’s petition.1 Burton’s

claims that the trial court failed to rule on (1) the March 16 oral Faretta motion and

(2) the June 1 handwritten Faretta motion were not addressed by the California

courts in a reasoned opinion because, as noted, they were raised only in the state

habeas petition that was summarily denied.

      We presume that the summary dismissal of Burton’s state habeas petition

was an adjudication on the merits. Harrington v. Richter, 131 S. Ct. 770, 784–85

(2011). Since the state court did not supply its own reasoning, we must “determine

what arguments or theories supported or, as here, could have supported, the state-

court’s decision; and then [we] must ask whether it is possible fairminded jurists

could disagree that those arguments or theories are inconsistent with the holding in

a prior decision of [the United States Supreme] Court.” Id. at 786. Under these



      1
        The state did not argue at any point that Burton failed to exhaust the two
Faretta claims that are at issue on this appeal.
                                            3
circumstances, “an independent review of the record is required to determine

whether the state court clearly erred in its application of controlling federal law,”

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000), but “[i]ndependent review of

the record is not de novo review of the constitutional issue.” Himes v. Thompson,

336 F.3d 848, 853 (9th Cir. 2003); see also Walker v. Martel, 709 F.3d 925, 939

(9th Cir. 2013). The burden remains with Burton to demonstrate that “there was no

reasonable basis for the state court to deny relief.” Richter, 131 S. Ct. at 784.

      We hold that Burton has not met this burden. In Faretta, the Supreme Court

explained that “weeks before trial, Faretta clearly and unequivocally declared to

the trial judge that he wanted to represent himself and did not want counsel.”

Faretta, 422 U.S. at 835. Here, in summarily denying Burton’s habeas petition,

the California Supreme Court could have concluded that neither Burton’s March

16 oral motion nor his June 1 handwritten motion was clear and unequivocal.

      At the March 16 hearing, Burton expressed a desire to represent himself.

But then he immediately stated that he first wanted to request a new court-

appointed attorney under People v. Marsden, 2 Cal. 3d 118 (1970). The California

Supreme Court could have determined that the Marsden request rendered

equivocal or unclear the Faretta motion that immediately preceded it. Even if such

a determination might be incorrect, it would not be “contrary to, or involve[] an


                                           4
unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Williams v.

Taylor, 529 U.S. 362, 412 (2000). It is possible that “fairminded jurists could

disagree” about what Faretta requires of a defendant who moves to represent

himself at trial. Richter, 131 S. Ct. at 786.

      The California Supreme Court might similarly have concluded that Burton’s

handwritten June 1 Faretta motion did not clearly and unequivocally express his

desire to proceed without counsel. Although the handwritten motion plainly

conveys Burton’s request to represent himself, Burton stated at the June 1 hearing

where the trial court first reviewed the document that “I would really like to

substitute counsel. Because, at this point, with my disease and my illnesses, I feel

that I should have counsel.” Fairminded jurists could disagree about whether

Burton’s seemingly contradictory statements at this hearing rendered his written

motion equivocal under Supreme Court precedent. See Richter, 131 S. Ct. at

786–87 (“As a condition for obtaining habeas corpus from a federal court, a state

prisoner must show that the state court’s ruling on the claim being presented in

federal court was so lacking in justification that there was an error well understood

and comprehended in existing law beyond any possibility for fairminded

disagreement.”).


                                           5
The judgment of the district court is AFFIRMED.




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