Maurice Moses, Sr. v. Lorie Davis, Director, 673 F. App'x 364

Background

Maurice A. Moses, Sr. requested to proceed pro se after jury selection but before the jury was sworn; the trial judge admonished him and expressed doubts about his competence and suggested delaying the decision until the next day.
The request was not reasserted; Moses was tried with counsel, convicted of capital murder, and sentenced to life. He did not raise a Faretta claim on direct appeal.
Moses petitioned for state habeas relief asserting denial of the right to self-representation and ineffective assistance of appellate counsel for failing to raise a Faretta claim. The state habeas court found the Faretta claim procedurally barred and rejected the ineffective-assistance claim, concluding the Faretta claim was not clearly stronger than issues raised on appeal and that Moses’s request was untimely or waived.
The Texas Court of Criminal Appeals denied relief without written order. Moses then filed a federal habeas petition.
The federal district court held Moses’s Faretta claim procedurally defaulted but granted relief on ineffective assistance of appellate counsel, finding the state court unreasonably applied Strickland and noting appellate counsel’s affidavit showing lack of awareness of Moses’s pro se request.
This panel affirms that Moses’s Faretta claim is procedurally barred for federal habeas review and reverses the district court’s grant of relief on the ineffective-assistance-of-appellate-counsel claim, holding the state court’s timeliness determination was not an unreasonable application of clearly established Supreme Court law.

Issues

Issue	Plaintiff's Argument (Moses)	Defendant's Argument (State)	Held
Whether Moses was denied his Faretta right to self-representation	Moses: Requested to proceed pro se before jury sworn; judge discouraged but did not formally deny; violation of Faretta	State: Request was untimely (after voir dire/jury selection) or waived by failing to reassert and proceeding with counsel	Court: Faretta claim is procedurally defaulted in federal habeas because not raised on direct appeal; on merits, timeliness ground is not clearly contrary to Supreme Court law, so state decision stands
Whether ineffective assistance of appellate counsel (failure to raise Faretta) overcomes procedural default or independently warrants habeas relief	Moses: Appellate counsel failed to familiarize with the record and therefore was deficient; had counsel raised Faretta, there was a reasonable probability of success	State: Appellate counsel was not deficient because Faretta claim was not clearly stronger than issues actually raised; no reasonable probability of a different outcome; alternative waiver/timeliness grounds support rejection	Court: Reverses district court — state habeas court’s conclusion that counsel was not ineffective was a reasonable application of Strickland because timeliness was a sufficient basis; district court erred in finding unreasonable application
Whether the state procedural rule (failure to raise claim on direct appeal) bars federal habeas review	Moses: Seeks cause and prejudice via appellate counsel ineffectiveness to excuse default	State: Rule is an independent and adequate state ground barring federal review unless cause and prejudice shown	Court: Rule is adequate; Moses failed to properly raise cause-and-prejudice below, so the panel will not consider that argument on appeal
Proper standard of review under AEDPA for state-court adjudications	Moses: District court applied AEDPA to find unreasonable application of federal law	State: State-court rulings are entitled to deference; any reasonable argument for state-court compliance with Strickland precludes relief	Court: Applies AEDPA’s deferential standard and Harrington/Strickland; affirms deference and rejects district court’s less-deferential application

Key Cases Cited

Faretta v. California, 422 U.S. 806 (1975) (recognizing Sixth Amendment right to self-representation)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong ineffective-assistance-of-counsel test)
Harrington v. Richter, 562 U.S. 86 (2011) (deference under AEDPA; reasonableness standard for counsel claims)
Coleman v. Thompson, 501 U.S. 722 (1991) (state procedural default doctrine bars federal habeas review absent cause and prejudice)
Martinez v. Court of Appeal of Cal., 528 U.S. 152 (2000) (timeliness of Faretta requests; government interest in trial integrity)
Chapman v. United States, 553 F.2d 886 (5th Cir. 1977) (discussing timeliness of pro se requests and locating Rubicon at jury empanelment/sworn point)
Miller v. Thaler, 714 F.3d 897 (5th Cir. 2013) (upholding state-court finding that a late pro se request can be untimely)
Batchelor v. Cain, 682 F.3d 400 (5th Cir. 2012) (denial of Faretta right is structural error requiring reversal)
McKaskle v. Wiggins, 465 U.S. 168 (1984) (procedural context for self-representation and structural-error discussion)
Kane v. Garcia Espitia, 546 U.S. 9 (2005) (AEDPA deference where Supreme Court has not clearly established contrary law)