Stanford Law School - Robert Crown Law Library

Filed 8/7/03

IN THE SUPREME COURT OF CALIFORNIA

)

S096831
In re
LEE MAX BARNETT
Butte
County
on Habeas Corpus.
Super. Ct. No. 91850

Petitioner Lee Max Barnett is being held in custody pursuant to a judgment
of death rendered on November 30, 1988. Petitioner is represented by appointed
counsel in this state habeas corpus proceeding challenging the legality of that
judgment. Despite such representation, petitioner has submitted a number of pro
se habeas corpus claims, motions, and other documents to this court for filing and
consideration. Because this court has begun to receive a number of pro se
submissions in capital habeas corpus matters, and because our actions thereon
have at times varied, we find it appropriate to announce a standard procedure for
such submissions.
Consistent with the general rule that represented parties have no right to
present their cases personally alongside counsel—a principle we have recognized
in the context of both capital trials and appeals, and noncapital habeas corpus
proceedings as well—this court will not file or consider a represented capital
inmate’s pro se submissions that challenge the legality of the inmate’s death
judgment or otherwise fall within the scope of counsel’s representation.
1

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Conversely, we shall file and consider a represented capital inmate’s pro se
submissions that pertain to matters falling outside the scope of counsel’s
representation. We shall also file and consider pro se motions limited to matters
concerning the inmate’s representation. (See People v. Marsden (1970) 2 Cal.3d
118 (Marsden) [motion to substitute counsel].)
I.
The facts underlying petitioner’s convictions are not pertinent to the
procedural matter presented here. It suffices to note that a jury convicted
petitioner in 1988 of one count of assault with a firearm, several counts of
kidnapping and robbery, and one count of first degree murder. Petitioner
committed his crimes upon encountering the victims unexpectedly in 1986 at a
remote campsite in a Butte County gold mining area. The evidence at trial
included testimony from persons present at the encounter, including petitioner, and
from others who had contact with petitioner the summer before the crimes
occurred or immediately afterward.
The relevant procedural facts are as follows. Appointed counsel Michael
Willemsen and Ronald A. Parravano represented petitioner in his automatic appeal
and concurrent state habeas corpus proceeding (judgment of death affirmed May
4, 1998, in People v. Barnett (1998) 17 Cal.4th 1044; concurrent habeas corpus
petition denied Nov. 17, 1999). On July 12, 2000, we granted the request of
Willemsen and Parravano to withdraw from all further representation. We also
appointed Robert D. Bacon, who currently represents petitioner in federal
postaffirmance capital-related habeas corpus proceedings, to represent petitioner
through the remaining state habeas corpus and executive clemency proceedings in
this matter until the judgment is reversed or until petitioner’s death.
2

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On April 5, 2001, Bacon filed in this court a 560-page second petition for
writ of habeas corpus that challenges the legality of petitioner’s death judgment.
That petition, which attaches 20 volumes of appendices, is pending.
Beginning in November 2001, petitioner has submitted the following pro se
documents to this court for our consideration: (1) a “Declaration and Motion to
Supplement Habeas Corpus” in In re Barnett (S096831, Apr. 5, 2001) (received
Nov. 2, 2001); (2) a document containing pro se habeas corpus claims No. 275 and
276 (received Nov. 19, 2001); (3) a “Declaration of Lee Max Barnett” and a
“Declaration and Motion and Objections to Respondent’s Request for Extension of
Time, Motion for Summary Judgement” (received Nov. 21, 2001); (4) a letter
referring to an alleged misleading statement of fact in Appellant’s Opening Brief
and the court’s opinion in People v. Barnett, supra, 17 Cal.4th 1044 (received
Nov. 27, 2001); (5) a document containing pro se “Supplemental Habeas Claim
#278” (received Dec. 7, 2001); (6) a document entitled “Impediments to Filing
preAEDPA & Entitlement to preAEDPA Standards on Review” (received Jan. 9,
2002); (7) a petition for writ of habeas corpus that complains both of “prison
conditions impeding & obstructing habeas” and of denial of petitioner’s rights to a
speedy trial and a speedy appeal (received Mar. 6, 2002); and (8) a petition for
writ of habeas corpus that complains the superior court erred in denying a petition
for writ of habeas corpus filed on August 28, 2001 in Marin County Superior
Court, No. SC 120773 (received Apr. 2, 2002).
The foregoing documents do not criticize Bacon’s effectiveness and do not
seek his removal. While the last two documents complain primarily of prison
conditions, the others largely purport to present, as habeas corpus claims, various
assignments of trial court and appellate error, prosecutorial misconduct, and
ineffectiveness of all prior appointed counsel. To this day, however, Bacon
continues to represent petitioner in these state court proceedings, and petitioner
3

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has never disavowed the state habeas corpus petition Bacon prepared on his
behalf.
In view of the pro se documents petitioner submitted, we issued an order on
April 10, 2002 that directed the Director of Corrections to show cause why this
court should not file the foregoing documents and consider their merits,
notwithstanding the fact that petitioner is currently represented by counsel.1 (See
generally People v. Mattson (1959) 51 Cal.2d 777, 797-798 (Mattson); People v.
Clark (1992) 3 Cal.4th 41, 173 (Clark); In re Cathey (1961) 55 Cal.2d 679, 684
(Cathey).) We requested briefing on the following issues: (1) whether and to
what extent this court should accept for filing and consideration, from a capital
inmate who is represented by counsel, a pro se petition for writ of habeas corpus
that challenges the legality of the inmate’s death judgment; (2) whether and to
what extent this court should accept for filing and consideration, from a
represented capital inmate, a pro se petition for writ of habeas corpus that
complains of prison conditions; and (3) whether and to what extent this court
should accept for filing and consideration, from a represented capital inmate, pro
se motions, pro se declarations, and other pro se submissions such as those
petitioner submitted here.
Respondent filed a return to the order to show cause. Counsel for petitioner
then filed a traverse to respondent’s return, and petitioner submitted his own pro se
“reply” to the return as well.

1
Our order specified that briefing of the merits of any matter set forth in
petitioner’s pro se submissions is deferred pending further order of this court.
4

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II.
As a general rule, parties who are represented in court by counsel of record
are required to proceed in court through their counsel. As a prelude to
determining the proper disposition of petitioner’s pro se submissions, we find it
useful to review the rules regarding legal representation and pro se submissions
applicable to capital trial and appellate proceedings.
A criminal defendant facing state capital charges has two mutually
exclusive rights with respect to legal representation at trial. “He may choose to be
represented by professional counsel, or he may knowingly and intelligently elect
to assume his own representation.” (People v. Hamilton (1989) 48 Cal.3d 1142,
1162 (Hamilton); see also People v. Bradford (1997) 15 Cal.4th 1229, 1368;
People v. Kirkpatrick (1994) 7 Cal.4th 988, 1003.) These are federal
constitutional rights that derive from the Sixth Amendment, as made applicable to
the states by the Fourteenth Amendment. (Faretta v. California (1975) 422 U.S.
806, 818.)
Significantly, however, a capital defendant who chooses professional
representation, rather than self-representation, is not entitled to present his or her
case personally or to act as cocounsel at trial.2 (People v. Frierson (1991) 53
Cal.3d 730, 741; Hamilton, supra, 48 Cal.3d at p. 1162, and cases cited therein;
see also Mattson, supra, 51 Cal.2d at p. 789.) There are sound reasons for this
rule. “Undesirable tactical conflicts, trial delays, and confusion often arise when a

2
There is one exception to this rule: Defendants may make pro se motions
regarding representation, including requests for self-representation (Faretta v.
California, supra, 422 U.S. 806) and for substitution of counsel (Marsden, supra,
2 Cal.3d 118).
5

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defendant who has chosen professional representation shares legal functions with
his attorney.” (Hamilton, supra, 48 Cal.3d at p. 1162.)
Accordingly, when a defendant exercises his or her constitutional right to
representation by professional counsel, it is counsel who “is in charge of the case”
and the defendant “surrenders all but a handful of ‘fundamental’ personal rights to
counsel’s complete control of defense strategies and tactics.” (Hamilton, supra,
48 Cal.3d at p. 1163.) Although a trial court retains discretion to allow a
represented defendant’s personal participation, such an arrangement ought be
avoided unless the court is convinced, upon a substantial showing, that it will
promote justice and judicial efficiency in the particular case. (People v. Frierson,
supra, 53 Cal.3d at p. 741; Mattson, supra, 51 Cal.2d at p. 797.) Indeed, it is the
trial court’s duty “to safeguard and promote the orderly and expeditious conduct of
its business and to guard against inept procedures and unnecessary indulgences
which would tend to hinder, hamper or delay the conduct and dispatch of its
proceedings.” (Mattson, supra, 51 Cal.2d at p. 792.)
A criminal defendant’s rights regarding legal representation are more
limited on appeal than at trial. The Sixth Amendment does not include any right
to appeal, so it implicates no basis for a right to representation by professional
counsel on appeal. (See People v. Scott (1998) 64 Cal.App.4th 550, 558, cited in
Martinez v. Court of Appeal of Cal., Fourth Appellate Dist. (2000) 528 U.S. 152,
155 (Martinez).) The Fourteenth Amendment and its due process and equal
protection guarantees, however, prohibit discrimination against convicted indigent
inmates; consequently, an indigent inmate has a constitutional right to counsel
appointed at the state’s expense where, as here, the state confers a criminal appeal
as of right. (Douglas v. California (1963) 372 U.S. 353, 356-357.) The right to
appointed counsel promotes an appellate system “ ‘free of unreasoned
distinctions’ ” by assuring that indigent inmates, like inmates in better economic
6

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circumstances, have an adequate opportunity to present their claims fairly within
the adversary system. (Ross v. Moffitt (1974) 417 U.S. 600, 612.) Consistent with
these constitutional principles, California provides a statutory right to appointed
counsel for both capital and noncapital criminal appeals. (Pen. Code, §§ 1239,
1240, 1240.1.)
Notably, however, there is no right—constitutional, statutory, or
otherwise—to self-representation in a criminal appeal in California. (See People
v. Stanworth (1969) 71 Cal.2d 820, 834-835 [no right to dismiss counsel in capital
appeals]; People v. Scott, supra, 64 Cal.App.4th at pp. 569-573 [noncapital
appeals].) In particular, neither the Sixth Amendment nor the due process clause
of the Fourteenth Amendment to the federal Constitution furnishes a basis for
finding such a right. (Martinez, supra, 528 U.S. at pp. 160-163.) As the United
States Supreme Court recently explained, the sole constitutional right to self-
representation derives from the Sixth Amendment, which pertains strictly to the
basic rights that an accused enjoys in defending against a criminal prosecution and
does not extend beyond the point of conviction. (Martinez, supra, 528 U.S. at pp.
154, 160-161.) Emphasizing that the change in one’s position from “defendant” to
“appellant” is a significant one, the high court found that the balance between a
criminal defendant’s interest in acting as his or her own lawyer and a state’s
interest in ensuring the fair and efficient administration of justice “surely tips in
favor of the [s]tate” once the defendant is no longer presumed innocent but found
guilty beyond a reasonable doubt. (Id. at p. 162.) Consequently, the court
concluded, states may exercise broad discretion when considering what
representation to allow and may require an indigent inmate “to accept against his
will a state-appointed attorney” for representation on a direct appeal without
violating the federal Constitution. (Martinez, supra, 528 U.S. at p. 164.)
7

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As relevant here, represented capital inmates are not permitted to present
their automatic appeals personally to this court. That is, such inmates have no
right personally to supplement or supersede counsel’s briefs and arguments on the
merits of their appeals. (Clark, supra, 3 Cal.4th at p. 173; Mattson, supra,
51 Cal.2d at p. 798.) As we explained in Mattson, pro se submissions pertaining
to an appeal will not be filed or considered “[b]ecause of the undesirability of
fruitlessly adding to the burdens of this court the time-consuming task of reading
pro se documents which are not properly before us, and, if they be read, of
consequently enlarging [the] opinion by a recountal and discussion of the
contentions made in propria persona. . . .” (Mattson, supra, 51 Cal.2d at p. 798.)
Thus, all appellate motions and briefs must be prepared and filed by
counsel and may not be submitted pro se. (Clark, supra, 3 Cal.4th at p. 173.)
Although we will accept and consider pro se motions regarding representation
(i.e., Marsden motions to substitute counsel), such motions “must be clearly
labeled as such” and “must be limited to matters concerning representation.”
(Clark, supra, 3 Cal.4th at p. 173.) Any other pro se document offered in an
appeal “will be returned unfiled” (ibid.), or, if mistakenly filed, will be stricken
from the docket (Mattson, supra, 51 Cal.2d at p. 798).3

3
Petitioner contends that respondent should be “estopped” from arguing here
that represented capital inmates may not file papers pro se in appellate and habeas
corpus proceedings because respondent supposedly advanced a contrary position
in Martinez, supra, 528 U.S. 152. That is, respondent assured the United States
Supreme Court, both in briefing and during oral argument, that appellate courts in
California routinely permit represented criminal appellants to make pro se filings.
The contention lacks merit. Whether or not respondent should be estopped from
arguing a point, this court is not estopped from applying correct constitutional and
policy principles.

In any event, we note the only apparent statement in Martinez that bears on
the matter is the high court’s observation that “the rules governing appeals in

(Footnote continued on next page.)
8

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With this overview in mind, we now assess whether and to what extent
similar restrictions should apply to pro se submissions by represented inmates in
capital habeas corpus proceedings before this court.
The federal Constitution guarantees that habeas corpus shall not be
suspended, except as necessary for public safety during a rebellion or invasion.
(U.S. Const., art. I, § 9, cl. 2.) Notwithstanding the fact that the concept of habeas
corpus relief is the subject of a constitutional provision, while appellate relief is
not, an inmate’s rights regarding legal representation in a state habeas corpus
proceeding are even more limited than on an appeal.
“Postconviction relief is even further removed from the criminal trial than
is discretionary direct review.[4] It is not part of the criminal proceeding itself, and
it is in fact considered to be civil in nature. [Citation.] . . . . States have no
obligation to provide this avenue of relief, [citation], and when they do, the
fundamental fairness mandated by the Due Process Clause does not require that
the state supply a lawyer as well.” (Pennsylvania v. Finley (1987) 481 U.S. 551,
556-557; see In re Scott (2003) 29 Cal.4th 783, 815 [state capital habeas corpus
proceeding in which a referee was appointed to take evidence and make findings

(Footnote continued from previous page.)

California, and presumably those in other States as well, seem to protect the ability
of indigent litigants to make pro se filings. See, e.g., People v. Wende, 25 Cal.3d
436, 440, 600 P.2d 1071, 1074 (1979); see also Anders v. California, 386 U.S. 738
(1967).” (Martinez, supra, 528 U.S. at p. 164.) The citations to People v. Wende
and Anders v. California make it apparent that the court’s focus was on the sort of
situation, not presented here, where counsel submits an appellate brief that raises
no specific issues on the client’s behalf or that describes the appeal as frivolous.
4
As used by the Supreme Court here, the term “postconviction relief” refers
to collateral relief, that is, relief from a conviction other than by direct appeal or
discretionary direct review. (Cf. post, fn. 6.)
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on an inmate’s claims of ineffective assistance of counsel was civil in nature].)
Consequently, there is no federal constitutional right to counsel for state habeas
corpus proceedings, not even in a capital case. (Murray v. Giarratano (1989) 492
U.S. 1, 10 (plur. opn. of Rehnquist, C. J.); see Coleman v. Thompson (1991) 501
U.S. 722, 752.)
California likewise confers no constitutional right to counsel for seeking
collateral relief from a judgment of conviction via state habeas corpus
proceedings. Nonetheless, the long-standing practice of this court is to appoint
qualified counsel to work on behalf of an indigent inmate in the investigation and
preparation of a petition for a writ of habeas corpus that challenges the legality of
a death judgment.5 (In re Sanders (1999) 21 Cal.4th 697, 717; In re Anderson
(1968) 69 Cal.2d 613, 633; Cal. Supreme Ct., Internal Operating Practices &
Proc., XV, Appointment of Attorneys in Criminal Cases; Cal. Supreme Ct.,
Policies Regarding Cases Arising from Judgments of Death, policy 3.) This
practice, now codified in principle at Government Code section 68662, promotes
the state’s interest in the fair and efficient administration of justice and, at the
same time, protects the interests of all capital inmates by assuring that they are
provided a reasonably adequate opportunity to present us their habeas corpus
claims.

5
An attorney willing to be appointed to represent an inmate in such a
proceeding must meet certain minimum qualifications and must demonstrate the
commitment, knowledge, and skills necessary to represent the inmate competently.
(Cal. Rules of Court, rule 76.6(a), (b), (e), (f).) Appointed counsel are charged
with “the duty to investigate factual and legal grounds for the filing of a petition
for a writ of habeas corpus,” as delineated in our court’s policies regarding cases
arising from death judgments. (Cal. Supreme Ct., Internal Operating Practices &
Proc., XV E.)
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We turn now to the question whether inmates have a right to self-
representation when seeking habeas corpus relief in our courts. Although the
United States Supreme Court has not ruled on this matter specifically, it is logical
to conclude that if there is no federal constitutional right to self-representation in a
state appeal as of right (Martinez, supra, 528 U.S. at p. 163), then there is no such
constitutional right in state collateral proceedings. Not only does the Sixth
Amendment right to self-representation at trial clearly not apply, but the autonomy
interests that survive a judgment of conviction surely are no greater once the
judgment is affirmed on appeal and the inmate is relegated to the civil remedy of
seeking collateral relief.
Inmates, moreover, have no state constitutional right to self-representation
in habeas corpus proceedings. Like its federal counterpart, the California
Constitution guarantees that habeas corpus shall not be suspended, except as
necessary for public safety during a rebellion or invasion. (Cal. Const., art. I,
§ 11.) That provision makes no mention of representational rights, and furnishes
no more a basis for such rights than the federal provision.
Recent legislation, however, alludes to the matter of self-representation.
Government Code section 68662 provides that our court “shall offer to appoint
counsel to represent all state prisoners subject to a capital sentence for purposes of
state postconviction proceedings,[6] and shall enter an order containing one of the
following: [¶] (a) The appointment of counsel to represent the prisoner in
postconviction state proceedings upon a finding that the person is indigent and has

6
As used in Government Code section 68662, the term “state postconviction
proceedings” refers to state proceedings in which the prisoner seeks collateral
relief from a capital sentence, i.e., relief other than by automatic appeal. (Cf. ante,
fn. 4.)
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accepted the offer to appoint counsel or is unable to competently decide whether
to accept or reject that offer. [¶] (b) A finding, after a hearing if necessary, that
the prisoner rejected the offer to appoint counsel and made that decision with full
understanding of the legal consequences of the decision. [¶] (c) The denial to
appoint counsel upon a finding that the person is not indigent.” (Italics added; see
Gov. Code, former § 68652, added by Stats. 1997, ch. 869, § 3.) Although these
provisions contemplate that a capital inmate may decline our offer of counsel at
the outset, so long as he or she fully understands the legal consequences of such a
decision, they specify no right to withdraw an election of professional legal
representation once made.
Additionally, the Penal Code specifies that “[e]very person unlawfully
imprisoned or restrained” may prosecute a writ of habeas corpus (Pen. Code,
§ 1473, subd. (a)) by means of a petition “signed either by the party for whose
relief it is intended, or by some person in his behalf” (id., § 1474, italics added).
But neither of these provisions is contravened by a rule that a “person” represented
by counsel for the specific purpose of pursuing habeas corpus remedies must
generally exercise the right to prosecute the writ through that counsel, who, in
such cases, acts “in his behalf.”
Certainly, capital inmates who are represented by habeas corpus counsel
have no more right to present their cases personally alongside their attorneys than
do represented capital defendants at trial or on appeal.
As is the situation in a capital trial or appeal, there is no constitutional or
statutory provision that grants a represented inmate the right to file pro se
petitions, motions, objections, or other briefing in furtherance of his or her capital
habeas corpus case. Nor do our published practices, procedures or policy
standards governing capital habeas corpus proceedings afford such a right.
Moreover, we indicated quite some time ago that the general rule prohibiting a
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represented party’s pro se documents applies in the habeas corpus context. (See
Cathey, supra, 55 Cal.2d at p. 684 [represented petitioner seeking release from the
custody of the California Medical Facility at Vacaville]; accord, In re Mozer
(Mont. 1973) 511 P.2d 1320, 1321 [per curiam order dismissing noncapital
defendant’s petition for writ of habeas corpus alleging unconstitutionality of his
confinement]; In re Stirewalt (C.G.C.C.A. 2001) 56 M.J. 506, 507 [refusing to
entertain a pro se habeas corpus petition where the petitioner had been previously
represented by counsel, had a right to continuing representation by government-
provided counsel, and had given no indication that he had been inappropriately
deprived of representation]; In the Matter of Stroik (Del., Sept. 22, 1998, No. 389,
1998) 1998 WL 736284 [unpublished disposition holding that a noncapital
defendant could not file a pro se habeas corpus petition because it was directly
related to postconviction matters in which he was represented by counsel]; Gilbert
v. Singletary (Fla.Dist.Ct.App. 1994) 632 So.2d 1104, 1105; Ex parte Taylor
(Tex.App. 1985) 690 S.W.2d 33, 34; Pitts v. Hopper (N.D.Ga. 1974) 402 F.Supp.
119, 120.)
In consideration of all of the foregoing, the rule we adopt is this: This court
will not file or consider a represented capital inmate’s pro se submission to the
extent it challenges, or otherwise pertains to (see post, fn. 11), the legality of the
death judgment.7 Challenges that go to the legality of the death judgment fall

7
Consistent with our rule on appeal, however, we will file and consider a pro
se motion regarding an inmate’s representation (i.e., a Marsden motion) to the
extent it is clearly labeled and limited to such matters. (See Clark, supra, 3
Cal.4th at p. 173; Marsden, supra, 2 Cal.3d 118.)

Additionally, we clarify that this opinion does not speak to pro se
submissions in which the represented inmate expresses a desire to immediately
end state habeas corpus proceedings, to forgo executive clemency proceedings,
and to urge the state’s implementation of the death penalty in his or her case.
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squarely within the scope of habeas corpus counsel’s representation, and there
appears no legitimate reason why capital inmates who have habeas corpus counsel
should not be required to submit such matters to their attorneys for investigation
and proper presentation to this court in a petition prepared and filed by their
attorneys.8 Indeed, with their formal legal training, professional experience, and
unrestricted access to legal and other resources, counsel possess distinct
advantages over their inmate clients in investigating the factual and legal grounds
for potentially meritorious habeas corpus claims and in recognizing and preparing
legally sufficient challenges to the validity of the inmates’ death judgments. (See
generally Jones v. Barnes, supra, 463 U.S. at p. 751 [noting the superior ability of
counsel to present the client’s case on appeal].)
A rule declining the filing and consideration of a represented capital
inmate’s pro se submissions as such is consistent with the general rule that
represented parties have no right to present their cases personally alongside
counsel—a principle we have recognized in the context of both capital trials and
appeals, and in noncapital habeas corpus proceedings as well.9 Restricting pro se

8
Of course, counsel need not press habeas corpus claims requested by their
inmate clients, even those that might be considered nonfrivolous, if counsel, as a
matter of professional judgment, decide not to present those claims. (See
generally Jones v. Barnes (1983) 463 U.S. 745, 751.) We hereby disapprove of
Cathey, supra, 55 Cal.2d 679, to the extent it suggests we will file or consider pro
se applications or briefs if counsel merely offers the pro se documents for filing on
the inmate’s behalf.
9
We recognize that inmates convicted solely of noncapital crimes typically
are represented only by appellate counsel who have no obligation to investigate or
present grounds for habeas corpus relief. (See In re Clark (1993) 5 Cal.4th 750,
783-784, fn. 20.) Nothing in this opinion should be construed to bar a court’s
filing and consideration of pro se habeas corpus petitions and claims from a
noncapital inmate unless counsel has also been specifically retained or appointed
to prosecute habeas corpus remedies on the inmate’s behalf.
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submissions by represented inmates also is consistent with the established rule in
California that represented parties in civil matters must act through their counsel.10
(Boca etc. R.R. Co. v. Superior Court (1907) 150 Cal. 153, 155 [civil trials];
Electric Utilities Co. v. Smallpage (1934) 137 Cal.App. 640, 641-642 [civil
appeals].) Such a restriction is reasonable and serves to promote the fair and
efficient administration of justice while avoiding inept procedures, repetitious and
piecemeal claims, tactical conflicts, and confusion. (See generally Martinez,
supra, 528 U.S. at p. 163.)
III.
As our order to show cause reflects, petitioner submitted eight pro se
documents to this court for filing and consideration. We shall return to petitioner
as unfiled the following six documents: (1) the “Declaration and Motion to
Supplement Habeas Corpus” in In re Barnett (S096831, Apr. 5, 2001) (received
Nov. 2, 2001); (2) the document containing pro se habeas corpus claims No. 275
and 276 (received Nov. 19, 2001); (3) the “Declaration of Lee Max Barnett” and
the “Declaration and Motion and Objections to Respondent’s Request for
Extension of Time, Motion for Summary Judgement” (received Nov. 21, 2001);
(4) the letter referring to an alleged misleading statement of fact in Appellant’s
Opening Brief and the court’s opinion in People v. Barnett, supra, 17 Cal.4th 1044
(received Nov. 27, 2001); (5) the document containing pro se “Supplemental
Habeas Claim #278” (received Dec. 7, 2001); (6) the document entitled

10
As indicated, habeas corpus proceedings like the one before us are properly
viewed as civil actions designed to overturn presumptively valid criminal
judgments and not as part of the criminal process itself. (Pennsylvania v. Finley,
supra, 481 U.S. at pp. 556-557; Murray v. Giarratano, supra, 492 U.S. at p. 13
(conc. opn. of O’Connor, J.); In re Scott, supra, 29 Cal.4th at p. 815.)
15

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“Impediments to Filing preAEDPA & Entitlement to preAEDPA Standards on
Review” (received Jan. 9, 2002). These documents consist largely of issues and
claims that pertain to the legality of the death judgment and therefore are within
the scope of counsel’s representation.11
Conversely, we shall file the following two pro se documents under
separate file numbers: (1) the petition for writ of habeas corpus that complains
both of “prison conditions impeding & obstructing habeas” and of denial of
petitioner’s rights to a speedy trial and a speedy appeal (received Mar. 6, 2002);
and (2) the petition for writ of habeas corpus that complains the superior court
erred in denying a petition for writ of habeas corpus filed on August 28, 2001 in
Marin County Superior Court, No. SC 120773 (received Apr. 2, 2002). Because
these documents complain primarily of prison conditions, reflecting matters falling
outside the scope of appointed counsel’s representation, we shall consider, at a
future time and independently of the habeas corpus proceeding herein
denominated as case No. S096831, those submissions on their merits. (See ante,
fn. 1.) To the extent, however, that these documents also include contentions that
challenge or otherwise pertain to the legality of the death judgment, such
contentions are not properly presented and we shall decline their consideration.

11
The third listed document includes objections to respondent’s request for an
extension of time to file an informal response to the petition for writ of habeas
corpus that counsel filed on petitioner’s behalf. The handling of such objections
falls directly within the scope of counsel’s representation.
16

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The order to show cause is discharged.

BAXTER,
J.

WE CONCUR:

GEORGE, C.J.
WERDEGAR, J.
CHIN, J.
BROWN, J.
MORENO, J.
POLLAK, J.*

__________________________________

*
Associate Justice of the Court of Appeal, First Appellate District, Division
Three, assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
17

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Barnett on Habeas Corpus
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding

XXX
Review Granted
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S096831
Date Filed: August 7, 2003
__________________________________________________________________________________

Court:
County:
Judge:

__________________________________________________________________________________

Attorneys for Appellant:

Robert D. Bacon, under appointment by the Supreme Court, for Petitioner Lee Max Barnett.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves,
Assistant Attorney General, Carlos A. Martinez, Ward A. Campbell, Jean M. Marinovich, Ruth M.
Saavedra and Eric L. Christoffersen, Deputy Attorneys General, for Respondent State of California.

18

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Robert D. Bacon
484 Lake Park Avenue
Oakland, CA 94610
(510) 834-6219

Eric L. Christoffersen
Deputy Attorney General
1300 I Street
Sacramento, CA 94244-2550
(916) 324-5248

19

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Opinion Information

Date:	Docket Number:
Thu, 08/07/2003	S096831

Disposition
Aug 7 2003	Opinion: OSC discharged

Dockets
Apr 5 2001	Petition for writ of Habeas Corpus filed   by attorney Robert Bacon. (2 vol. Petition, 560 pp. and 20 vols. of exhibits.)
Apr 10 2001	Received:   Copy of petition for federal habeas corpus filed in U.S. Distict Court, Eastern District..
Apr 23 2001	Note:   Motion filed by Counsel Robert Bacon in A. A. no. S008113 (confidential)
Aug 8 2001	Informal response requested   (rule 60); due 9-7-2001. Any reply due within 30 days of service & filing of response.
Aug 27 2001	Received letter from:   petnr's counsel opposing the granting of any extensions of time to the Attorney General for the informal response.
Aug 31 2001	Application for Extension of Time filed   To file informal response. (1st request)
Sep 5 2001	Filed:   Petnr.'s opposition to resp.'s request for extension of time to file informal response.
Sep 7 2001	Filed:   Suppl. declaration of service of petnr's opposition to resp.'s application for extension of time.
Sep 10 2001	Extension of Time application Granted   To 10/9/2001 to file informal response.
Sep 12 2001	Filed:   Notice of errata in the petition for writ of habeas corpus.
Oct 3 2001	Application for Extension of Time filed   To file informal response. (2nd request)
Oct 12 2001	Extension of Time application Granted   To 11/8/2001 to file informal response.
Nov 2 2001	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated October 20, 2001.
Nov 5 2001	Application for Extension of Time filed   To file informal response. (3rd request)
Nov 15 2001	Extension of Time application Granted   To 12/10/2001 to file informal response.
Nov 19 2001	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," pp. 1021-1057.
Nov 21 2001	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated April 1, 2001.
Nov 27 2001	Received:   pro se Letter dated November 25, 2001, "Subject: IAC & Court Error."
Dec 5 2001	Request for extension of time filed   To file informal response.(4th request)
Dec 7 2001	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," "claim No. 278."
Dec 10 2001	Filed:   "Corrected declaration of service by U.S. Mail" of the application for extension of time to file informal response.
Dec 12 2001	Extension of time granted   To 1/9/2002 to file informal response. Dep. AG Saavedra anticipates filing the brief by 3/13/2002. Only 2 further extensions are contemplated.
Jan 3 2002	Request for extension of time filed   To file informal response. (5th request)
Jan 7 2002	Opposition filed   by petnr. to resp.'s fifth request for extension of time to file informal response.
Jan 9 2002	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 27, 2001.
Jan 15 2002	Extension of time granted   To 2/8/2002 to file informal response. The court anticipates that after that date, only one further extension will be granted.
Feb 6 2002	Request for extension of time filed   to file informal response. (6th request)
Feb 14 2002	Extension of time granted   To 3/11/2002 to file informal response. Dep. AG Saavedra anticipates filing the brief by the end of April 2002. Only one further extension of time is contemplated.
Mar 7 2002	Request for extension of time filed   To file informal response. (7th request)
Mar 18 2002	Extension of time granted   To 4/30/2002 to file informal response. Dep. Atty. General Saavedra anticipates filing the brief by 4/30/2002. After that date, no futher extension is contemplated.
Apr 10 2002	Letter sent to:   counsel: The court requests that counsel provide briefing on the following issues: (1) whether and to what extent this court should accept for filing and consideration, from a capital inmate who is represented by counsel, a pro se petition for writ of habeas corpus that challenges the legality of the inmate's death judgment; (2) whether and to what extent this court should accept for filing and consideration, from a represented capital inmate, a pro se petition for writ of habeas corpus that complains of prison conditions; and (3) whether and to what extent this court should accept for filing and consideration, from a represented capital inmate, pro se motions, pro se declarations, and other pro se submissions such as those listed in the enclosed Order to Show Cause.
Apr 10 2002	Order to show cause issued   Capital inmate Lee Max Barnett has submitted the following documents to this court for filing: (1) a "Declaration and Motion to Supplement Habeas Corpus" in In re Lee Max Barnett on Habeas Corpus, No. S096831 (received Nov. 2, 2001); (2) a document containing pro se habeas corpus claim nos. 275-276 (received Nov. 19, 2001); (3) a "Declaration of Lee Max Barnett" and a "Declaration and Motion and Objections to Respondent's Request for Extension of Time, Motion for Summary Judgement" (received Nov. 21, 2001); (4) a letter referring to an alleged misleading statement of fact of fact in the Appellant's Opening Brief and the court's appellate opinion (received Nov. 27, 2001); (5) a document containing pro se "Supplemental Habeas Claim #278" (received Dec. 7, 2001); (6) a document entitled "Impediments to Filing preAEDPA & Entitlement to preAEDPA Standards on Review" (received Jan. 9, 2002); (7) a petition for writ of habeas corpus which complains both of "prison conditions impeding & obstructing habeas" and of a denial of rights to a speedy trial and a speedy appeal (received Mar. 6, 2002); and (8) a petition for writ of habeas corpus which complains of error in the denial of a petition for writ of habeas corpus filed on August 28, 2001 in Marin County Superior Court, No. SC 120773 (received April 2, 2002). The Director of Corrections is ordered to show cause before this court, when the matter is placed on calendar, why this court should not file the foregoing documents and consider their merits, notwithstanding the fact that the inmate is currently represented by counsel. (See generally People v. Mattson (1959) 51 Cal.2d 777, 797-798; People v. Clark (1992) 3 Cal.4th 41, 173; In re Cathey (1961) 55 Cal.2d 679, 684.) The return shall be filed on or before May 10, 2002. All discussion and briefing of the merits of any matter set forth in the aforementioned documents is deferred pending further order of this court. (Votes: Baxter, ACJ, Werdegar, Chin, Brown and Moreno, J.J.) George C.J., was absent and did not participate. Kennard, J., is recused and did not participate.
Apr 26 2002	Request for extension of time filed   To file informal response. (8th request)
May 1 2002	Extension of time granted   To 5/20/2002 to file informal response. Dep. Atty. General Saavedra anticipates filing the informal response by 5/20/2002. No further extension will be granted.
May 14 2002	Extension of time granted   To 5/30/2002 to file return to OSC.
May 20 2002	Informal Response filed (AA)   by resp. (378 pp. - excluding exhibits)
May 29 2002	Received:   pro se letter from Barnett dated May 25, 2002.
May 30 2002	Written return filed   by resp. (21 pp.)
Jun 17 2002	Request for extension of time filed   to file traverse. (1st request)
Jun 17 2002	Request for extension of time filed   To file reply to informal response. (1st request)
Jun 18 2002	Filed:   Petitioner's pro se reply to return to order to show cause.
Jun 21 2002	Extension of time granted   to 7-31-2002 to file traverse. After that date, only three further extensions totaling 92 additional days are contemplated. Extension granted based upon counsel Robert D. Bacon's representation that he anticipates filing the traverse by 10-31-2002.
Jun 21 2002	Extension of time granted   to 7-19-2002 to file reply to informal response. The court anticipates that after that date, only five further extensions totaling 150 additional days will be granted. Counsel is ordered to inform his assisting entity of this schedule, and to take all steps necessary to meet it.
Jul 18 2002	Request for extension of time filed   To file reply to informal response. (2nd request)
Jul 22 2002	Extension of time granted   To 8/19/2002 to file reply to informal response. The court anticipates that after that date, only four further extensions totaling 120 additonal days will be granted. Counsel is ordered to inform his assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record of this schedule, and to take all steps necessary to meet it.
Jul 26 2002	Request for extension of time filed   To file traverse. (2nd request)
Jul 30 2002	Extension of time granted   To 8/30/2002 to file traverse. Counsel anticipates filing that brief by 10/31/2002. Two further extensions totaling 62 additional days are contemplated.
Aug 15 2002	Request for extension of time filed   to file reply to informal response. (3rd request)
Aug 19 2002	Extension of time granted   to 9-18-2002 to file reply to informal response. The court anticipates that after that date, only three further extensions totaling 89 additional days will be granted. Counsel is ordered to inform his or her assisting atty or entity, if any, and any assisting atty or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet this schedule.
Aug 27 2002	Request for extension of time filed   To file traverse. (3rd request)
Aug 29 2002	Extension of time granted   to 9-30-2002 to file traverse. After that date, only one further extension totaling 31 additional days is contemplated. Extension granted based upon counsel Bacon's representation that he anticipates filing the traverse by 10-31-2002.
Sep 13 2002	Request for extension of time filed   To file reply to informal response. (4th request)
Sep 18 2002	Extension of time granted   To 10/18/2002 to file the reply to the informal response to the petition for writ of habeas corpus. The court anticipates that after that date, only two further extensions totaling 59 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Sep 27 2002	Request for extension of time filed   To file traverse. (4th request)
Oct 1 2002	Extension of time granted   To 10/31/2002 to file the traverse. Extension is granted based upon counsel Robert D. Bacon's representation that he anticipates filing that brief by 10/31/2002. After that date, no further extension is contemplated.
Oct 15 2002	Request for extension of time filed   To file reply to informal response. (5th request)
Oct 17 2002	Extension of time granted   To 11/18/2002 to file the reply to the informal response to the petition for writ of habeas corpus. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Oct 31 2002	Traverse to return filed   by attorney Bacon. (52 pp. - excluding exhibits)
Nov 4 2002	Received letter from:   atty Bacon, dated 11-1-2002, requesting that oral argument in this matter not be scheduled between April 30 and May 14, 2003.
Nov 12 2002	Request for extension of time filed   To file informal reply to informal response. (6th request)
Nov 19 2002	Extension of time granted   to 12-18-2002 to file reply to informal response. After that date, only 2 further extensions totaling about 60 additional days will be granted. Extension granted based upon counsel Robert D. Bacon's representation that he anticipates filing the reply by 2-13-2003.
Dec 3 2002	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated November 16, 2002.
Dec 10 2002	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Dec 13 2002	Request for extension of time filed   To file reply to informal response. (7th request)
Dec 17 2002	Extension of time granted   To 1/17/2003 to file the reply to the informal response to the petition for writ of habeas corpus. The court anticipates that after that date, only one further extension totaling 30 additional days will be granted. Counsel is ordered to inform his or her assisting attorney or entity, if any, and any assisting attorney or entity of any separate counsel of record, of this schedule, and to take all steps necessary to meet it.
Dec 18 2002	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Jan 15 2003	Request for extension of time filed   to file reply to informal response. (8th request)
Jan 21 2003	Extension of time granted   to 2/18/2003 to file the reply to the informal response to the petition for writ of habeas corpus. After that date, only one further extension totaling about 30 additional days will be granted. Extension is granted based upon counsel Robert D. Bacon's representation that he anticipates filing that document by 3/14/2003.
Feb 5 2003	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 16, 2002.
Feb 13 2003	Request for extension of time filed   to file reply to informal response. (9th request)
Feb 18 2003	Extension of time granted   to 3/14/2003 to file reply to informal response to the petition for writ of habeas corpus. Extension is granted based upon counsel Robert D. Bacon's representation that he anticipates filing that document by 3/14/2003. After that date, no further extension will be granted.
Mar 14 2003	Reply to Informal Response filed (AA)   by attorney Robert D. Bacon. (2 vols. - 619 pp.)
Mar 14 2003	Filed:   Appendices to informal reply in support of petition for writ of habeas corpus. (5 vols.)
Mar 14 2003	Request to file document under Seal received (AA case)   Appendices S-1 through S-7. (1 vol.)
Mar 27 2003	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Apr 7 2003	Oral argument letter sent   to counsel advising that case could be scheduled for oral argument as early as the May calendar, to be held in San Francisco the week of May 27, 2003.
Apr 16 2003	Letter sent to:   attorney Bacon, inviting him to submit a supplemental motion (to file under seal) complying with rule 12.5 of the Calif. Rules of Court, on or before 4-25-03.
Apr 22 2003	Filed:   Supplemental motion to file appendices S-1 through S-7 under seal.
Apr 25 2003	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Apr 30 2003	Case ordered on calendar   5-28-03, 1:30pm, S.F.
May 9 2003	Received:   pro se "Declaration of Lee Max Barnett," dated May 5, 2003.
May 14 2003	Application to file document under seal granted   Petitioner's "Motion To File Appendices S-1 Through S-7 Under Seal" and his "Supplemental Motion To File Appendices S-1 Through S-7 Under Seal," filed March 14, 2003 and April 22, 2003, respectively, are granted. The Clerk is directed to file appendices S-1 through S-7 under seal. Kennard, J., was recused and did not participate.
May 15 2003	Received letter from:   Deputy Attorney General Eric L. Christoffersen, dated 5/9/2003, advising he "will be handling the upcoming oral argument on behalf of respondent."
May 22 2003	Motion for discovery filed (in AA proceeding)   Petitioner's motion for post-conviction discovery.
May 28 2003	Cause argued and submitted
May 28 2003	Received:   pro se "Notice of Medical Emergencies and Demand for Immediate Ruling on Habeas etc.," dated May 16, 2003.
May 30 2003	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Jun 6 2003	Opposition filed   to motion for access to discovery materials.
Jun 19 2003	Motion filed (in AA proceeding)   petitioner's "Motion to Amend Petition for Writ of Habeas Corpus" with amended petition attached. (note: counsel advised to file separate motion to amend.) *** FILING ORDERED STRICKEN ON 11-19-2003 ***
Jun 25 2003	Motion filed   to amend petition for writ of habeas corpus.
Aug 5 2003	Received:   pro se "Declaration of Lee Max Barnett," dated July 27, 2003.
Aug 7 2003	Opinion filed: OSC discharged   Majority opinion by Baxter, J. -- joined by George C.J., Werdegar, Chin, Brown, Moreno & Pollak (assigned) JJ.
Aug 21 2003	Rehearing petition filed   pro se petition by petitioner BARNETT. (7 pages with attached exhibits - 1 through 4)
Aug 21 2003	Rehearing petition filed   by Attorney Robert Bacon. (17 pp.)
Aug 25 2003	Time extended to consider modification or rehearing   to and including November 5, 2003, or the date upon which rehearing is either granted or denied, whichever occurs first.
Sep 24 2003	Rehearing denied   Petitioner's petition for rehearing denied. Petitioner's pro se petition for rehearing denied. Kennard, J., was recused and did not participate.
Oct 17 2003	Received:   pro se "Marsden Motion etc.," dated October 13, 2003.
Nov 19 2003	Motion denied   Petitioner's 11-page "Motion to Amend Petition for Writ of Habeas Corpus," filed on June 25, 2003, is denied. The Clerk is directed to strike from the docket the filing of petitioner's 64-page document, entitled "Motion to Amend Petition for Writ of Habeas Corpus," filed on June 19, 2003, and is further directed to file that document, nunc pro tunc as of June 19, 2003, as a new petition for writ of habeas corpus. Kennard, J., was recused and did not participate.
Dec 8 2003	Received:   pro se "Motion for a Formal Marsden-Type Faretta Hearing etc."
Jan 9 2004	Letter sent to:   Barnett: We have received the following documents which you have submitted for filing in propria persona: "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated October 20, 2001, and received on November 2, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," pp. 1021-1057, received on November 19, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated April 1, 2001, and received on November 21, 2001; Letter dated November 25, 2001, "Subject: IAC & Court Error" and received on November 27, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," "claim No. 278," received on December 7, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 27, 2001, and received on January 9, 2002; Letter dated May 25, 2002, and received on May 29, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 10, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 18, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on March 27, 2003; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on April 25, 2003; "Declaration of Lee Max Barnett," dated May 5, 2003 and received on May 9, 2003; "Notice of Medical Emergencies and Demand for Immediate Ruling on Habeas etc.," dated May 16, 2003 and received on May 28, 2003; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on May 30, 2003; "Declaration of Lee Max Barnett," dated July 27, 2003 and received on August 5, 2003; "Marsden Motion etc.," dated October 13, 2003 and received on October 17, 2003; and "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 8, 2003. Because you are represented by counsel, you are not entitled to submit the documents yourself, and they are herewith returned. (See, e.g., In re Barnett (2003) 31 Cal.4th 466, 469.)
Jan 9 2004	Letter sent to:   Barnett: We have received the following documents which you have submitted for filing in propria persona: "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated November 16, 2002, and received December 3, 2002; and "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 16, 2002, and received February 5, 2003. Because you are represented by counsel, you are not entitled to submit the documents yourself, and they are herewith returned. (See, e.g., In re Barnett (2003) 31 Cal.4th 466, 469.)
Apr 14 2004	Discovery motion denied   The motion for postconviction discovery, filed on May 22, 2003, is denied. Denial is without prejudice to filing or refiling motions pursuant to Penal Code section 1054.9 and In re Steele (2004) 32 Cal.4th 682 in superior court. Kennard, J., was recused and did not participate.
Aug 13 2004	Received:   Letter from petitioner's counsel, dated 8/11/2004, requesting that the court decide the merits of the habeas petition promptly.
Nov 29 2004	Motion filed (AA)   by petitioner for prompt decision of habeas corpus petition.
Dec 13 2004	Received:   Letter from petitioner Barnett, dated 12/8/204, re motion waiving all penalty phase habeas corpus claims.
Dec 17 2004	Letter sent to:   petitioner Barnett, returning his letter dated 12/8/2004.
Feb 23 2005	Motion denied   Petitioner's "Motion for Prompt Decision," which was filed on November 29, 2004 and seeks expedited consideration of the matter captioned above, is denied. Kennard, J., was recused and did not participate.
Jul 27 2005	Petition for writ of habeas corpus denied (AA)   The petition for writ of habeas corpus, filed on April 5, 2001, is denied. Except for claim 113, each claim is denied on the merits for failure to state a prima facie case for relief. Claim 113 is dismissed on the ground it is premature. (See People v. Kelly (1992) 1 Cal.4th 495, 545, fn. 11.) Except for claims 57, 58, 60 (subparts A and B), 61, 62 (insofar as it alleges Jerry Kenkel's conflicts of interest involving Delinda Olsen), 65 (insofar as it alleges trial counsel's false statements regarding Cindy Burger), 70 (insofar as it alleges prosecutorial misconduct and ineffective assistance of counsel regarding impeachment of Margaret Haynes, Lloyd Hampton, Dave McGee, Delinda Olsen, Gwen Hall, Helen T., and Robin Stingley with evidence that had not been disclosed to the defense), 71, 73, 75 (insofar as it alleges trial counsel's failure to secure Tom Burgess's permission to review Burgess's attorney's file), 76, 81 (insofar as it alleges ineffective assistance of trial counsel concerning Sunshine Clumpus, Jerry Vore, and Delinda Olsen), 83 (insofar as it alleges ineffective assistance of trial counsel), 84, 94, 95 (insofar as it alleges ineffective assistance of counsel), 96, 101 (subparts A, B, C, D, E, F, H, and I), 103, 104, 105, 106, 111 (insofar as it concerns Sunshine Clumpus), 112, 114, 115, 116, 117, 118, 119, 120, and 121, each claim is procedurally barred as both untimely (In re Robbins (1998) 18 Cal.4th 770, 780-781; In re Clark (1993) 5 Cal.4th 750, 763-799) and impermissibly successive (In re Clark, supra, 5 Cal.4th at pp. 767-768; In re Horowitz (1949) 33 Cal.2d 534, 546-547). Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims are additionally barred to the extent they were raised and rejected on appeal (In re Harris (1993) 5 Cal.4th 813, 825, 829-841; In re Waltreus (1965) 62 Cal.2d 218, 225): claims 64, 69, 77, 83, 85, 87, 88, 89, 97, 98, and 108. Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims or portions of claims are additionally barred to the extent they are based solely on the record on appeal and could have been, but were not, raised on appeal (In re Harris, supra, 5 Cal.4th at p. 825, fn. 3, 829-841; In re Dixon (1953) 41 Cal.2d 756, 759): claims 60 (subpart C), 63, 68 (allegations regarding the jury's perception of petitioner as dangerous and guilty of the charged offenses), 70 (allegations regarding impeachment of Cheryl Lake), 74, 78, 80, 82, 90, 91, 95, 98 (allegations regarding prosecutor's use of a balance scale, shark and dog references, display of a hunting knife during the penalty phase, and reference to the crumbling of society), 101 (subparts G, J, K, L, M, and N), and 107. Except insofar as they allege ineffective assistance of counsel as a substantive basis for relief, the following claims or portions of claims are barred on the additional ground that petitioner forfeited them by failing to raise them in the trial court (In re Seaton (2004) 34 Cal.4th 193, 200): claims 59 (allegations regarding petitioner's state of being involuntarily medicated before and and during trial; see People v. Jones (1997) 15 Cal.4th 119, 152-153), 68 (allegations regarding interference with attorney-client communications in court), 70 (allegations regarding prosecutorial misconduct involving Cheryl Lake), 74, 78 (allegations regarding those instances of prosecutorial misconduct to which counsel failed to object, move to strike, and seek proper admonishment), 82, 90, 91, 98 (allegations regarding those instances of prosecutorial misconduct to which counsel failed to object, move to strike, and seek proper admonishment), and 107. Werdegar, J. would not invoke this bar on the ground the petition was not filed before In re Seaton became final. The following claims or portions of claims are additionally barred to the extent they duplicate claims raised and rejected in petitioner's first petition for writ of habeas corpus challenging this judgment (In re Miller (1941) 17 Cal.2d 734, 735): claims 62 (insofar as it alleges Jerry Kenkel's conflicts of interest involving Jimmy Skidmore and Dan Zuercher, and Mark Stapleton's conflict of interest involving Bill Cantwell), 65 (insofar as it alleges trial counsel's false statements regarding the search for Sam and John), 67 (insofar as it alleges denial of access to counsel of choice), 70 (insofar as it alleges prosecutorial misconduct and ineffective assistance regarding impeachment of Christine Racowski), 92, 98, 99, 100, and 111 (insofar as it alleges newly discovered evidence pertaining to Jacek Jerzy Gabryelski, Monalisa Larabee, Larry Wyman, and Michael O'Neill). Claim 85 is barred on the further ground that claims of insufficiency of evidence are not cognizable on habeas corpus. (In re Lindley (1947) 29 Cal.2d 709, 723.) Kennard, J., was recused and did not participate.
May 31 2007	Letter sent to:   Barnett: We have received the following documents which you have submitted for filing in propria persona: "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated October 20, 2001, and received on November 2, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," pp. 1021-1057, received on November 19, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated April 1, 2001, and received on November 21, 2001; Letter dated November 25, 2001, "Subject: IAC & Court Error" and received on November 27, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," "claim No. 278," received on December 7, 2001; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 27, 2001, and received on January 9, 2002; Letter dated May 25, 2002, and received on May 29, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated November 16, 2002, and received December 3, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 10, 2002; Letter dated December 15, 2002, and received on December 18, 2002. "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 18, 2002; "Motion for a Formal Marsden-Type Faretta Hearing etc.," dated December 16, 2002, and received February 5, 2003; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on March 27, 2003; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on April 25, 2003; "Declaration of Lee Max Barnett," dated May 5, 2003 and received on May 9, 2003; "Notice of Medical Emergencies and Demand for Immediate Ruling on Habeas etc.," dated May 16, 2003 and received on May 28, 2003; "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on May 30, 2003; "Declaration of Lee Max Barnett," dated July 27, 2003 and received on August 5, 2003; "Marsden Motion etc.," dated October 13, 2003 and received on October 17, 2003; and "Motion for a Formal Marsden-Type Faretta Hearing etc.," received on December 8, 2003. Because you are represented by counsel, you are not entitled to submit the documents yourself, and they are herewith returned. (See, e.g., In re Barnett (2003) 31 Cal.4th 466, 469.)

Briefs
May 30 2002	Written return filed
Oct 31 2002	Traverse to return filed

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