Kenneth Crandell v. Bill J. Bunnell, Warden Attorney General of California , 25 F.3d 754 ( 1994 )

PER CURIAM; Dissent by Judge BRUNETTI.

PER CURIAM.

Kenneth Crandell represented himself in capital proceedings in California state court. He was convicted of two counts of murder, each with a special circumstance of multiple murders, as well as kidnapping and assault with intent to commit rape.¹ Crandell brought a federal habeas petition claiming his state conviction was flawed by numerous constitutional errors, each involving his right to counsel and each demanding reversal. The district court denied his petition; we review de novo. Zimmerlee v. Keeney, 831 F.2d 183, 185 (9th Cir.1987).

Crandell claims he did not voluntarily waive his right to counsel and elect self-representation in the municipal court proceedings. This is a mixed question of law and fact which we review de novo. United States v. Robinson, 913 F.2d 712, 714 (9th Cir.1990).

On July 9, 1990, Crandell was arraigned in municipal court and a public defender was appointed to represent him. A few weeks later, Crandell appeared before the court with counsel, and the court ordered his preliminary hearing continued to October 20, 1980. Crandell next appeared in court on September 19 — this time alone — to argue a number of pro per motions he’d filed. When the judge inquired as to why he was representing himself, Crandell explained that— despite numerous phone calls and letters to his appointed counsel — Crandell had not heard from him for almost two months. In fact, Crandell had been transferred to the “pro per” section of the jail and told this was because he didn’t have a lawyer. 9/19/80 RT at 3-4.

Following a brief discussion with the judge, Crandell stated: “I do waive him as a legal representative of any kind because he has put up no defense at all for me, none whatsoever, won’t even communicate with me.” Id. at 4. Although the judge held a hearing a few days later to look into the matter — with the public defender present— neither the judge nor counsel addressed the two-month period when counsel had, apparently, done nothing.

We have held that “[a] criminal defendant may be asked to choose between waiver and another course of action so long as the choice presented to him is not constitutionally offensive.” Robinson, 913 F.2d at 715 (quoting United States v. Moya-Gomez, 860 F.2d 706, 739 (7th Cir.1988)). In Robinson, as here, the defendant claimed his decision to proceed pro se was coerced because he faced an unconstitutional alternative: an appointed lawyer who was incompetent. In ruling on that claim, we implicitly accepted the premise that, had Robinson shown that his counsel was incompetent, his decision to go pro se would have been involuntary. We determined, however, that Robinson had alleged nothing amounting to attorney incompetence and hence was not entitled to an evidentiary hearing on the matter.

Our case is different. Crandell has alleged that, for two months following appointment, his lawyer did nothing at all to prepare a defense. Crandell raised this claim to the municipal court, but that court didn’t rule whether such delay was within accepted limits of competence for attorneys in capital cases. He raised this point again in the district court below, but that court didn’t conduct an evidentiary hearing to. resolve the issue either.

We’ve determined Crandell has stated a viable claim. “[Pjersons accused of crime are ‘entitled to the effective assistance ... of counsel’ acting “within the range of competence demanded of attorneys in criminal cases.’ ” Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978) (en banc) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970)). Failure to do anything at all during the first two months of representing a defendant in a capital case may or may not have fallen within this range. We note that this entire period transpired prior to the preliminary hearing, a proceeding that often serves as a discovery vehicle for the defense. Yet there is the possibility of prejudice from such inaction, as memories fade and evidence is lost or destroyed. The lawyer’s delay might have been perfectly normal, or it might not. We’re in no position to tell. We can only say that the two-month delay is unusual-enough within our experience to raise doubts about the lawyer’s competence.

Because Crandell could not have been forced to choose between incompetent counsel and no counsel at all, see Lofton v. Procurer, 487 F.2d 434, 436 (9th Cir.1973), we REMAND to the district court for an eviden-tiary hearing on whether Crandell’s lawyer was competent at the time Crandell chose to refuse further representation and proceed pro se. As Crandell’s other claims may be rendered moot by the district court’s determination, we reserve them.

REMANDED.

1 . Although the juiy fixed a penalty of death on each murder conviction, the California Supreme Court reversed the penalty phase judgment and the state declined to prosecute further; Crandell was thus sentenced to life imprisonment without the possibility of parole.