Lead Opinion
Proceeding pro se, Clаrence Randolph, Jr., Louisiana prisoner # 480981, challenges the denial of 28 U.S.C. § 2254 habe-as relief, regarding his state-court convictions for aggravated rape and aggravated incest involving his 13-year-old stepdaughter. Randolph has been granted a certificate of appealability (COA) on two issues: whether, for trial, he knowingly and intelligently waived his right to counsel, in the light of the trial court’s failure to conduct a hearing pursuant to Faretta v. California,
I.
Approximately a year before his trial in March 2004, Randolph filed a pro se motion seeking “to enroll and participate at trial as co-counsel of record”, citing Faret-ta. Randolph’s motion noted he was rep
At a hearing on that motion on 14 April 2003, the trial court: confirmed Randolph filed the motion; сonfirmed neither the State nor Randolph’s counsel had any objection to his serving as “co-counsel”; and granted the motion. After the court did so, however, the State cautioned the court: “It’s important, [it] may be required that the court represent to the defendant the dangers of self-representation”. The court replied: ‘Tes, but he’s also represented”.
On 3 November 2003, Randolph filed a pro se motion, expressing dissatisfaction with appointed counsel and requesting apрointment of new counsel. The motion was granted.
Randolph’s counsel conducted the vast majority of the March 2004 trial, except that Randolph cross-examined two of the State’s four witnesses: the victim (stepdaughter) and her mother. (He also objected to jury polling; that objection was sustained.) Randolph was convicted for aggravated rape and aggravated incest. That April, he was sentenced to life in prison, without parolе, for the former, and to a concurrent 20-year term of imprisonment for the latter.
Through counsel, Randolph raised several issues on direct appeal, but they did not include either the Faretta or, of course, IAC claim for which he has been granted a COA. In May 2005, the state intermediate appellate court affirmed. State v. Randolph,
In January 2007, Randolph filed, pro se, an application for post-conviction relief in the state trial court. Randolph asserted: the trial court, in violation of Faretta, failed to determine whether he knowingly waived his right to counsel (as noted, the Faretta claim); and his counsel on direct appeal rendered ineffective assistance by failing to raise the Faretta claim (as noted, the IAC claim). Randolph’s application was denied that February, without written reasons. See Randolph v. Cain, No. 327872/3 (22nd Dist.La.2007).
That March, Randolph appealed to the Louisiana intermediate appellate court. That April, the appeal was summarily denied, without opinion. See State v. Randolph, 2007 KW 0411 (La.App. 1 Cir.2007).
That May, Randolph filed a writ application with the Louisiana Supreme Court. It was denied in March 2008, without opinion. See State ex rel. Randolph v. State,
Later that month, Randolph, pro se, applied for federal habeas relief, pursuant to 28 U.S.C. § 2254. He raised numerous issues, including: the Faretta and IAC claims. The application was referred to a magistrate judge for report and recоmmendation. In January 2009, the magistrate judge recommended, inter alia, that Randolph was not entitled to relief on any of his claims.
For the Faretta claim, the magistrate judge recommended: it was not necessary for the trial court to ensure Randolph knowingly and intelligently waived counsel, because Randolph did not waive his right to counsel or unequivocally exercise his Sixth Amendment right to represent himself. The magistrate judge recommended Randolph was seeking merely to act as “co-counsel”, not lead-counsel. As such, the magistrate judge recommended: a Faretta warning was not required; and,
For the IAC claim, the magistrate judge recommended: “it [was] not reasonably probable that [Randolph’s] appeal would have had a different outcome if appellate counsel [for the direct appeal] had raised the [Faretta] claim....” The magistrate judge reiterated this recommendation was because Randolph had no constitutional right to proceed as “co-counsel”.
On 3 February 2009, Randolph filed written objections to the report and recоmmendation. Six days later, the district court adopted it and dismissed Randolph’s habeas petition. See Randolph v. Cain, No. 08-1982,
With his notice of appeal, Randolph filed a request for a COA and to proceed in forma pauperis. Among the issues for which a COA was requested were the Faretta and IAC claims. The district court granted Randolph a COA only for the Faretta claim.
Subsequently, Randolph requested a COA from our court on issues for which he had unsuccessfully requested a COA in district court. On 7 January 2010, our court granted a COA only for the IAC claim.
II.
Accordingly, Randolph maintains: the district court violated his right to counsеl by granting his motion to act as “co-counsel” at trial, without first warning him of the dangers of self-representation as required by Faretta (as noted, the Faretta claim); and his counsel on direct appeal was ineffective for failing to raise the Far-etta claim (as noted, the IAC claim).
In reviewing this denial of federal habe-as relief, the district court’s findings of fact are reviewed for clear error; its conclusions of law, de novo. E.g., Gregory v. Thaler,
. Because the determination of whether Randolph expressly and unequivocally, or constructively, invoked his right to self-representation, requiring Faretta safeguards, was solely dependent on the particular facts and circumstances of the case, our review of that issue is to determine whether the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court prоceeding”. 28 U.S.C. § 2254(d)(2); see United States v. Long,
On the other hand, as discussed in part II. B., the IAC claim is a legal issue and is, therefore, reviewed to determine whether the state-court decision was: “contrary to, or involved an 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 Schaetzle v. Cockrell,
“Because a federal habeas court only reviews the reasonableness of the state court’s ultimate decision, the AEDPA inquiry is not altered when, as in this case, state habeas relief is denied without an opinion.” Schaetzle,
A.
A Faretta warning is required if defendant, either expressly or constructively, unequivocally invokes his right to proceed pro se and waives his right to counsel. See Cano,
Of critical importance here, although defendant possesses the right to counsel as well as the right to self-representatiоn, there is no constitutional right to have both through a “hybrid representation” scheme. See McKaskle v. Wiggins,
For the reasons that follow, it is obvious, under AEDPA, that the state-court decision for the Faretta claim was not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”. See 28 U.S.C. § 2254(d)(2). As discussed, the record reflects that Randolph requested only to proceed at trial as “co-counsel”, not as lead counsel; and he did not constructively invoke his right to proceed pro se.
“Requests that vacillate between self-representation and representation by counsel are equivocal.” State v. Berry,
For example, in State v. Penson, a decision relied on heavily by Randolph, a Louisiana intermediate appellate court held the trial court’s recognition of defendant’s request to proceed as “co-counsel”, mixed with defеndant’s extensive participation in his defense, resulted in defendant’s waiver of his right to counsel.
Randolph’s reliance on Penson is unavailing. Pre-trial, Penson filed a pro se motion to join as “co-counsel” because of conflicts with his attorney. Id. at 276. Subsequently, Penson filed two pro se motions, one of which was to remove his attorney and have new counsel appointed. Id. At trial, Penson presented part of the opening statement, conducted part of the cross-examination of two State witnesses, moved for a “continuance”, and offered legal arguments concerning the admission of evidence and witness sequestration. Id. Penson also made arguments on post-trial motions in a hearing. Id.
The Penson appellate court noted:
When a defendant has exercised his right to self-representation, the court may appoint “standby counsel” to aid the defendant and to be available to represent the defendant in the event the right of self-representation is terminated. See Faretta,422 U.S. at 834 n. 46,95 S.Ct. 2525 .... When the trial court allows this kind of arrangement, the defendant acts as his only legal representative, and counsel merely advises the defendant. When an attorney is appointed as an advisor under these circumstances, the accused must knowingly abandon his right to be represented by counsel.
Id. at 277 (internal citation omitted) (emphasis added). Although Penson’s counsel was heavily involved, the court found it “apparent that the attorney had his own agеnda and that defense counsel and defendant did not always agree on the presentation of the defense”. Id. at 278. In fact, Penson even asserted his attorney, the judge, and assistant district attorney were in collaboration to “sell him out”. Id. at 276. The court held: “under these circumstances”, the trial court was required to warn defendant of the dangers of self-representation. Id. at 278. The court found: “Although defendant’s request to serve as ‘co-counsel’ was not an unequivocal demand for self-representation, ... he performed many of the functions that an attorney traditionally performs”. Id. at 278. (emphasis added). The court further held: “Considering the facts of this case, we find that defendant asserted a right to self-representation”. Id. at 278 (emphasis added).
Faretta requires the claimed hearing “[w]hen an accused manages his own defense”.
As another example of the factual inquiry made necessary by Faretta, our court held defendant invoked his self-representation right, triggering the need for a Faret-ta warning, when, in the middle of trial, defendant expressed dissatisfaction with his counsel’s performance, and was permitted to ask witnesses questions his counsel refused to ask. See United States v. Davis,
As discussed, unlike Davis, where defense counsel largely stood by as an advis- or while defendant conducted the trial, Randolph’s counsel conducted his entire trial except for the cross-examination of two Government witnesses. Randolph’s counsel determined the controlling trial strategy, conducted jury voir dire, made all technical and legal arguments, conducted all bench conferences, made objections throughout trial, and presented closing argument. Rаndolph did not request his counsel be relieved during trial, he never expressed dissatisfaction with the representation provided by his counsel at trial, and he never took over the management of his defense. There is no indication of a conflict between Randolph and his counsel at trial or a disagreement with defense counsel’s representation. Randolph’s counsel was not “stand-by” as was counsel in Davis.
In sum, the record does not support finding Randolph “manage[d] his own defense”, thereby invoking his right to self-representation. Therefore, again, the state-court decision rejecting the Faretta claim was not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”. 28 U.S.C. § 2254(d)(2).
B.
IAC claims are mixed questions of law and fact and “should be reviewed under the [above-discussed] ‘contrary to’ and ‘unreasonable application’ prong of 28 U.S.C. § 2254(d)[ (1) ]”. Moore v. Cockrell,
“[T]he applicable ‘clearly established Federal law as determined by the Supreme Court of the United States’— against which to measure the state court’s decision — is [of course, stated] in Strickland v. Washington,
In state court, to show appellate counsel’s performance was deficient, Randolph was required to show: counsel’s failure to raise the Faretta claim was objectively unreasonable; and, if counsel had raised it, “there was a reasonable probability that, but for counsel’s deficient performance, [Randolph] would have prevailed on direct appeal”. Id. at 445, 448 (emphasis in original). Needless to say, Randolph’s IAC claim fаils under our limited AEDPA standard of review, because his Faretta claim fails under that standard. Counsel’s performance on direct appeal was not ruled ineffective by the state court. For the above-discussed reasons for why that decision was not found wanting under AEDPA for the Faretta claim, it is not wanting under AEDPA for this IAC claim. In sum, for the IAC claim, the state-court decision was not “contrary to, or ... an unreasonable application of, clearly established federal law, as detеrmined by the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1).
III.
For the foregoing reasons, the denial of habeas relief is AFFIRMED.
Notes
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
Concurrence Opinion
concurring in the judgment.
I write separately in order to clarify a point regarding the proper analysis of the type of claim that is at issue in this appeal. In Faretta v. California,
Thus, a court can violate the requirements of Faretta in either of two ways: by denying a defendant’s clear, unequivocal, timely request to represent himself, or by granting a defendant’s request to represent himself but failing to ensure that he understands “the dangers and disadvantages of self-representation,” id. These are two different errors that correspond to two distinct сlaims that can be made on appeal or on habeas. Compare United States v. Long,
This case involves the second type of Faretta claim: Randolph argues that the trial court erred by not making sure he understood the dangers of self-representation before allowing him to participate in his own defense by cross-examining the victim and her mother. A defendant’s participation in his own defense, even if assisted by a lawyer, can rise to a level that “entail[s] a waiver of his Sixth Amendment right to counsel that require[s] the safeguards specified in Faretta.” Davis,
In my view, the majority opinion tends to confuse the issue by engaging in a lengthy analysis of an irrelevant question: whether Randolph made a “clear and unequivocal assertion of the right tо self-representation.” Maj. Op. 658-59. That question would be important if this case involved a claim that a trial court erroneously denied a defendant’s request to engage in self-representation. The majority opinion relies on several cases involving claims of that type, including Long,
Despite this partial disagreement with the majority opinion’s analysis, I concur in the judgment for two reasons. First, as to Randolph’s claim that the trial court allowed him to engage in self-representation without conducting a Faretta hearing, there is no “clearly established Federal law, as detеrmined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), regarding whether a Faretta warning is required before a trial court allows a defendant to partially conduct his own defense in the particular manner that Randolph did. Therefore, we cannot grant habeas relief on this claim.
Second, as to Randolph’s claim that he received ineffective assistance when his appellate counsel failed to raise the Faretta issue on direct appeal, wе must apply a “highly deferential” level of scrutiny to counsel’s performance. Strickland v. Washington,
Randolph’s ineffective assistance claim is not compelling enough to clear this bar. “Counsel need not raise every nonfrivolous ground of appeal.” Id. at 445. “Often, factual differences will make authority easily distinguishable, whether persuasively or not. In such cases, it is not necessarily providing ineffective assistance of counsel to fail to construct an argument that may or may not succeed.” Id. at 445 (quoting United States v. Williamson,
Accordingly, I agree with the majority that Randolph is not entitled to habeas relief.