Marshall BATCHELOR, Petitioner-Appellee, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellant.
No. 10-30802.
United States Court of Appeals, Fifth Circuit.
May 29, 2012.
I respectfully dissent.
Ross Warren Bergerthon, Asst. Atty. Gen. (argued), Office of the Atty. Gen., Baton Rouge, LA, Anita Tennant Mack, Counsel, Dist. Attorney‘s Office, Tallulah, LA, for Respondent-Appellant.
Before HIGGINBOTHAM, DENNIS and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
This is an appeal from the district court‘s grant of habeas relief under
We conclude that Batchelor made a clear and unequivocal invocation of his Sixth Amendment right to represent himself and that the state trial court erroneously denied his request in violation of
I.
Batchelor was arrested in June 1998 and charged with robbing a pizza delivery driver and beating him so badly that he suffered permanent brain damage. On October 14, 1999, long before trial, Batchelor filed a pro se “Motion for Dismissal of Counsel.” The two-page, legibly handwritten motion stated, in pertinent part:
The defendant moves this Honorable Court to dismiss counsel .... Pursuant to Faretta vs the State of California a Supreme Court Decision, the defendant has a constitutional right to represent himself .... Defendant avers that his request to dismiss counsel is being made with sound-mind with his eyes opened .... Defendant further prays that this Honorable Court allow him to proceed pro se in this matter with standby counsel only.
At some point that same day, the trial court attempted to hold an arraignment, but Batchelor‘s appointed counsel, Michael Kelly, failed to attend. The court asked Batchelor if he wanted to enter a plea despite Kelly‘s absence. Batchelor declined, saying, “I rather not say unless I have a presence of counsel [sic].” The following month, the arraignment took place with Kelly present, and Batchelor pleaded not guilty to all charges. Batchelor‘s Faretta motion was not discussed at either of these appearances.
On February 7, 2000, the trial court held a hearing at which several motions were addressed, including Batchelor‘s Faretta motion. The prosecutor spoke first, in a way that indicated that he erroneously thought Batchelor had moved to replace his appointed counsel rather than to proceed pro se. Kelly clarified the nature of Batchelor‘s motion: “[Batchelor] is not necessarily asked [sic] that counselor be totally released, but that he have stand aside counsel to assist him throughout the proceedings.” The court indicated that it shared this understanding of the motion: “You mean that he would represent himself and have you stand beside him during that time?” Kelly responded, “Yes, sir, for whatever questions or pointers of law, issues as it relates, whatever procedural devices that he may be—that may be warranted.” Before ruling, the court asked Batchelor if he had anything to say. He responded, “No, sir.” The court then denied the motion and gave its reasons for doing so: “Court is going to deny your motion to dismiss counsel. This matter has been set for trial on March the 20th. I believe that everything is now on track and Mr. Kelly is certainly well capable of mounting a defense on your behalf. I think everything is on track now, and we can proceed.”
The trial, with Batchelor represented by Kelly, ultimately did not begin until November 2000. The issue of Batchelor‘s representation was raised again by Batchelor and Kelly in motions filed on the eve of trial. First, on November 27, 2000, Kelly filed a “Motion to Appoint Counsel,” in which Kelly averred that he had discovered on November 21 that Batchelor had filed a state bar disciplinary complaint against him. Kelly‘s motion asserted that this complaint created a conflict of interest
After the trial, the jury convicted Batchelor of armed robbery and the court sentenced him to sixty years of imprisonment. Batchelor appealed his conviction and sentence to the state appellate court and argued, in a pro se brief, that the trial court violated his right to represent himself when it denied his October 14, 1999 Faretta motion, “even though [he] filed [it] six months before trial,” without “conduct[ing] any or a more sufficient hearing to decide whether .... [he] was literate, competent, and understanding, or to see if [he] was voluntarily exercising his right‘s on his own free will [sic].”
On direct appeal, a three-judge panel of the state appellate court reversed the conviction, holding that the trial court had violated Batchelor‘s right to self-representation when it denied his Faretta motion at the February 7, 2000 hearing. State v. Batchelor, 823 So.2d 367, 372-73 (La.App. 2d Cir.2002) (majority opinion of Norris, C.J.) (“Batchelor first filed his written motion to dismiss counsel and represent himself on October 14, 1999 .... Batchelor specifically cited Faretta and claimed the constitutional right to represent himself, stating that he desired to proceed pro se with stand-by counsel only, and that he was making this request ‘with his eyes opened.’ Batchelor clearly and unequivocally declared his desire to exercise his Sixth Amendment right to represent himself .... The motion was heard in open court February 7, 2000, at which time trial was set for March 20, 2000 .... [T]he trial court did not conduct any meaningful inquiry to determine if Batchelor was competent to waive his right to counsel[] [before it] denied his motion .... Because we find that the trial court made no meaningful effort to inform Batchelor of the consequences of proceeding without counsel, ... or determine whether [his] waiver of counsel was ‘intelligent and voluntarily made,’ we must reverse the conviction and sentence ....“). One judge dissented, arguing that at the November 29, 2000 “hearing[,] ... like at the hearing on February 7, 2000, ... [Batchelor] never mentioned a desire for self-representation. Clearly this was a delaying tactic. The court did not deny a request for self-representation .... Under these circumstances, I question whether [Batchelor] sought self-representation and, if he did, it was implicitly waived.” Id. at 374 (Brown, J., dissenting). The state petitioned for
By a three-to-two vote, the rehearing panel affirmed Batchelor‘s conviction and sentence. Id. at 374-77 (majority opinion of Brown, J., on rehearing). The two judges who had formed the majority of the original three-judge panel dissented. Id. at 378-80 (Norris, C.J., dissenting). The rehearing majority focused on whether the trial court erred in denying Batchelor‘s November 29, 2000 Faretta motion. Id. at 375-77. Of that request, the court wrote: “Assuming ... that he did seek to represent himself, [Batchelor]‘s vacillation between wanting to be represented by counsel and desiring to undertake his own defense, together with his failure to specifically assert this right at the November 27 hearing, constitutes an implicit waiver of his request.” Id. at 377. The court mentioned Batchelor‘s October 14, 1999 Faretta motion only in a footnote, stating that “[t]he [trial] court did not address any request for self-representation [at the February 7, 2000 hearing] nor did defendant personally argue for such when given the opportunity to do so.” Id. at 375 n. 2.
The Louisiana Supreme Court denied certiorari. Subsequently, Batchelor filed an application for state post-conviction relief, which was denied by the trial court. Batchelor then filed writ applications with the state appellate court and the Louisiana Supreme Court, which were denied in turn. Having exhausted the remedies available in the Louisiana courts, see
Batchelor clearly asserted his right to represent himself, not once but twice .... Neither Batchelor‘s attorney, the district attorney, nor the district court treated the motion as having been abandoned. Batchelor‘s attorney argued the motion for him and offered to serve as standby counsel ... and the [trial] court denied the motion without any inquiry into Batchelor‘s competency to waive counsel .... [T]he [state appellate court]‘s [decision] to, in effect, treat the motion as abandoned was an unreasonable application of Federal law. Batchelor v. Cain, Civil Action No. 07-1623, 2010 WL 3155985, at *7 n. 4 (W.D.La. Aug. 9, 2010).
The district court‘s judgment would vacate and set aside Batchelor‘s conviction and order the state to either release him or grant him a new trial within 120 days. The state timely appealed, and the district court stayed its judgment pending appeal.
II.
We review the district court‘s conclusions of law de novo. E.g., Foster v. Quarterman, 466 F.3d 359 (5th Cir.2006). We “may affirm a district court‘s decision on any basis supported by the record.” Teague v. Quarterman, 482 F.3d 769, 773 (5th Cir.2007). Here, although the district court concluded that the writ may issue because the state appellate court‘s decision “was an unreasonable application of Federal law,” Batchelor, 2010 WL 3155985, at *7; see
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) prevents a federal court from granting habeas relief to a state prisoner with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of
Whereas
§ 2254(d)(2) sets out a general standard by which the district court evaluates a state court‘s specific findings of fact,§ 2254(e)(1) states what an applicant will have to show for the district court to reject a state court‘s determination of factual issues. For example, a district court may find by clear and convincing evidence that the state court erred with respect to a particular finding of fact, thus rebutting the presumption of correctness with respect to that fact. See§ 2254(e)(1) . It is then a separate question whether the state court‘s determination of facts was unreasonable in light of the evidence presented in the state court proceeding. See§ 2254(d)(2) . Thus, it is possible that, while the state court erred with respect to one factual finding under§ 2254(e)(1) , its determination of facts resulting in its decision in the case was reasonable under§ 2254(d)(2) .
Valdez v. Cockrell, 274 F.3d 941, 951 n. 17 (5th Cir.2001); see also Blue, 665 F.3d at 654 (“The clear-and-convincing evidence standard of
Under AEDPA, we review “the last reasoned state court decision.” See, e.g., Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007). Here, we review the state appellate court‘s rejection of Batchelor‘s claim that the trial court violated his right to self-representation when it denied his Faretta motion at the February 7, 2000 hearing.
Finally, the denial of the right to self-representation constitutes a structural error that is not subject to harmless error review and instead requires automatic reversal. McKaskle v. Wiggins, 465 U.S. 168, 177 n. 8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) (“Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome
III.
In Faretta, the Supreme Court announced that the right of a criminal defendant to represent himself at trial is implicit in the structure of the Sixth Amendment, and applies to state court proceedings through the Fourteenth Amendment. 422 U.S. at 818-21. The Court determined that this right was violated where, “weeks before trial, Faretta clearly and unequivocally declared to the judge that he wanted to represent himself and did not want counsel,” and Faretta‘s request was nonetheless denied by the trial court. Id. at 835. The Court explained:
It is undeniable that in most criminal prosecutions defendants could better defend with counsel‘s guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer‘s training and experience can be realized, if at all, only imperfectly .... Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes open.”
Id. at 834-35. Additionally, the Court stated that “a State may—even over objection by the accused—appoint a ‘standby counsel’ to aid the accused if and when the accused requests help, and to be available to represent the accused in the event that termination of the defendant‘s self-representation is necessary.” Id. at 834 n. 46 (citation omitted). In McKaskle, the Court reaffirmed that appointment of standby counsel—whether at the defendant‘s request or over the defendant‘s objection—is consistent with the exercise of the right to self-representation. 465 U.S. at 169, 184.1
“Even if defendant requests to represent himself, ... the right may be waived through defendant‘s subsequent conduct indicating he is vacillating on the issue or has abandoned his request altogether.” Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir.1982) (en banc). “A waiver may be found if it reasonably appears to the court that defendant has abandoned his initial request to represent himself.” Id.
Batchelor argues—as he did on direct appeal in state court—that he clearly, unequivocally, and timely moved to represent himself on October 14, 1999, and that the state trial court violated his right to self-representation by erroneously denying that motion at the February 7, 2000 pre-
Whether Batchelor abandoned his Faretta motion and thereby waived his right to represent himself is a question of fact, see Myers v. Collins, 8 F.3d 249, 253 (5th Cir.1993), abrogated on other grounds by Martinez v. Court of Appeal of Cal., 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000); see also Myers v. Johnson, 76 F.3d 1330, 1333 (5th Cir.1996) (per curiam), which we review under
A.
The record admits of no doubt that Batchelor‘s October 14, 1999 “Motion for Dismissal of Counsel” constituted a “clear[] and unequivocal[] declar[ation] that he wanted to represent himself and did not want counsel.” See Faretta, 422 U.S. at 835. That motion stated in substantive part:
Motion for Dismissal of Counsel
Now Comes the pro se litigant Marshall T. Batchelor into Court to file the above captioned motion pertaining to the above enumerated matter. The defendant moves this Honorable Court to dismiss counsel for the following Reasons hereinafter set forth:
(1)
Pursuant to Faretta vs the State of California, a Supreme Court Decision, the defendant has a constitutional right to represent himself.
(2)
Defendant avers that his request to dismiss counsel is being made with sound-mind with his eyes opened.
(3)
Counsel has failed to file necessary pleadings such as a Writ of Habeas Corpus and Application for a Writ of Review to secure the defendants’ [sic] release in this matter. Had counsel filed such aforementioned pleadings, the defendant could have been released without bond obligation. Instead counsel has deliberately denied the defendant access to court by depriving the defendant of the final ruling that he received from the Clerk‘s office on the defendants’ [sic] pro se “Application for a Writ of Habeas.” Therefore counsel has provided the defendant with ineffective assistance and caused unnecessarily prolonged incarceration upon the defendant.
Wherefore, the defendant prays that this Honorable Court deem his Reasons good and sufficient to grant the foregoing motion or show just cause for not doing so.
Defendant further prays that this Honorable Court allow him to proceed pro se in this matter with standby counsel only.
The motion specifically cited Faretta for the proposition that “the defendant has a constitutional right to represent himself.” It identified Batchelor as a “pro se litigant” and requested that the court “allow him to proceed pro se.” Moreover, the
almost all requests for pro se representation will arise from dissatisfaction with trial counsel. It is the rare defendant who will ask to proceed pro se even though he/she is thoroughly delighted with counsel‘s representation, ability, and preparation. Thus, that a defendant wishes to proceed without representation because s/he is dissatisfied with that representation is not usually relevant to whether that defendant‘s request is clear and unequivocal.
Alongi v. Ricci, 367 Fed.Appx. 341, 346-47 (3d Cir.2010) (per curiam) (unpublished) (citations and internal quotation marks omitted). In any event, the state conceded, both in its briefing and at oral argument, that by this motion Batchelor asserted his right to represent himself. See Br. of Appellant at 4-5, 20, 27.
B.
Instead, the state contends that two events establish a reasonable basis upon which the state appellate court could have implicitly found that Batchelor waived his right to represent himself after filing his October 14, 1999 Faretta motion: first, Batchelor‘s statement to the trial court at the attempted arraignment that same day that he preferred not to enter a plea “unless I have a presence of counsel“; and, second, the discussion of Batchelor‘s Faretta motion at the February 7, 2000 hearing. We examine the state court records of these exchanges and conclude that the state court could not reasonably have found a waiver. See
1.
First, the transcript of the proceedings on October 14, 1999 provides clear and convincing evidence that Batchelor did not abandon his request at those proceedings, as his conduct was in no way inconsistent with his Faretta motion. See
Moreover, Batchelor‘s unwillingness to plead on October 14, 1999 without the “presence of counsel” was entirely consistent with his request, made in his motion, that the court appoint standby counsel while allowing him to proceed pro se. See Faretta, 422 U.S. at 834 n. 46 (“[A] State may ... appoint a ‘standby counsel’ to aid the accused if and when the accused requests help ....” (emphasis added)); McKaskle, 465 U.S. at 177 (“[T]he objectives underlying the right to proceed pro se may be undermined by unsolicited and excessively intrusive participation by standby counsel.” (emphasis added)). Indeed, the Court in McKaskle repeatedly referred to the “presence” of standby counsel, 465 U.S. at 171, 173, 182-83, 185, and itself used the terms “counsel” and “standby counsel” interchangeably, e.g., id. at 182, 183.3
In arguing to the contrary, the state misapprehends the Court‘s statement in McKaskle that, “[o]nce a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the defendant‘s acquiescence, at least until the defendant expressly and unambiguously renews his request that standby counsel be silenced.” 465 U.S. at 183. There, the Court was addressing a pro se defendant‘s “complaints concerning [standby] counsel‘s subsequent unsolicited participation,” where the trial court had appointed standby counsel over the defendant‘s objection. Id. That language does not bear on the situation in this case. Here, Batchelor complains that the court—not standby counsel—deprived him altogether of his right to proceed pro se by erroneously denying his Faretta motion. See Moore, 531 F.3d at 403 (”McKaskle addresses the constitutional boundaries of standby counsel‘s involvement in criminal proceedings against the wishes of a pro se defendant. Moore never became a pro se defendant, nor was his attorney standby counsel. Moore does not complain that his attorney overstepped his bounds as standby counsel—rather he complains that he was denied his right of self-representation.“). Indeed, rather than supporting the state‘s waiver argument, the quoted language from McKaskle underscores the significant degree of partic-
2.
Nor does the discussion of Batchelor‘s pro se Faretta motion at the February 7, 2000 hearing provide any basis for a finding of waiver. Rather, a review of the transcript from that hearing likewise provides clear and convincing evidence that Batchelor did not equivocate or abandon his request. Batchelor‘s motion, as discussed above and as conceded by the state, constituted a clear and unequivocal invocation of his right to self-representation. The transcript of the relevant portion of the hearing, at which Batchelor, his appointed counsel Kelly, and the prosecutor Phillips, were present, reads:
MICHAEL KELLY:
The next matter we have is dismissal of counsel, which was filed by the defendant, Marshall Batchelor.
TREY PHILLIPS:
Judge, the State would, of course, object to the dismissal of this appointed counsel. Mr. Batchelor filed the motion. It was denied [sic]. And, as the record reflects, Mr. Kelly has been on the case from the beginning. The State has, at his urging, given discovery and let him see video tapes. There‘s no basis for Mr. Kelly being replaced by anyone else. The State wants to try this case on March 20th, so from the State‘s point of view, there‘s not a reason in the world for Mr. Kelly to be replaced.
THE COURT:
Mr. Kelly or Mr. Batchelor, do you wish, either of you wish to say anything?
MICHAEL KELLY:
Yes, sir. Counsel has had a chance to visit with defendant, Mr. Batchelor, and in my capacity as counselor at this time, I have acquiesced and understand his reasoning for having filed that motion. He is faced with severe charges that, possibly, expose him to a lifelong sentence. He has a reason and a feeling, and a relationship with his counselor, if he does not feel comfortable that his counselor is doing everything within his benefit, then I believe that he is proper to file motions that have that counselor dismissed. And, I think that he is also along with that motion, is not necessarily asked [sic] that counselor be totally released, but that he have stand aside counsel to assist him throughout the proceedings. And, I believe recent jurisprudence [sic] in litigation has shown that is plausible and that is an equitable way of having the benefit of being properly represented.
THE COURT:
You mean that he would represent himself and have you beside him during that time?
MICHAEL KELLY:
Yes, sir, for whatever questions or pointers of law, issues as it relates, whatever procedural devices that he may be—that may be warranted. And, that is also—he has a right to represent himself. He has a right to be appointed counsel. He has rejected said counsel, in lieu of proceedings as they transpired. And, I believe he has a pretorinary [sic] interest in wanting to get adequate counsel to represent him. Counsel has no objection with representing the defendant, nor does counsel have objection to stand beside the defendant throughout the proceedings.
TREY PHILIPS:
Judge, the State would suggest that although the defendant is entitled to be represented by an attorney, he is not entitled to the attorney of his choice. And, if we allow defendants to start filing these pro se motions every time they become upset with their attorney, we would never get anything done. Related to any attempt to replace Mr. Kelly, he‘s done a fine job and has vigorously pursued the defendant. THE COURT:
Mr. Batchelor, do you have anything to say?
MARSHALL BATCHELOR:
No, sir.
THE COURT:
Court is going to deny your motion to dismiss counsel. This matter has been set for trial on March the 20th. I believe that everything is now on track and Mr. Kelly is certainly well capable of mounting a defense on your behalf. I think everything is on track now, and we can proceed.
The transcript shows that Kelly spoke when the trial court asked whether Batchelor or Kelly had anything to say regarding Batchelor‘s Faretta motion. This is unremarkable given that the court had not yet ruled on Batchelor‘s motion to represent himself. Cf. Moore, 531 F.3d at 402-03. Although Phillips, the prosecutor, seemed confused about the nature of the motion, his confusion is not attributable to Batchelor, whose motion was perfectly clear. Moreover, there is no indication that either the trial court or Kelly was similarly confused. Kelly was reasonably clear in articulating—consistent with the written motion—Batchelor‘s desire to represent himself, with Kelly acting as standby counsel, present during the proceedings and able to assist as requested by Batchelor. The judge asked Kelly, “You mean that he would represent himself and have you stand beside him during that time?” Kelly answered, “Yes, sir.” Kelly stated that he had no “objection to stand[ing] beside [Batchelor] throughout the proceedings“—as opposed to “representing [him]“—to assist with “whatever questions or pointers of law, ... [or] procedural devices ... may be warranted.” See McKaskle, 465 U.S. at 183 (explaining that it is appropriate for “standby counsel ... to assist[] the pro se defendant in overcoming routine procedural or evidentiary obstacles to the completion of some specific task, such as introducing evidence or objecting to testimony,” and to “help[] to ensure the defendant‘s compliance with basic rules of courtroom protocol and procedure“). Kelly also explained that “recent jurisprudence [sic] in litigation has shown” such an arrangement to be “plausible and ... equitable.” See, e.g., McQueen v. Blackburn, 755 F.2d 1174, 1178 (5th Cir.1985) (stating that the appointment of “standby counsel following dismissal of [appointed counsel] ... is the preferred practice“).4
The state advances no other factual basis for a finding that Batchelor abandoned or vacillated in his request, and our review of the record reveals none. Accordingly, we conclude that Batchelor has met his burden of rebutting by clear and convincing evidence the presumptive correctness afforded the state appellate court‘s implicit factual determination that Batchelor equivocatecl or abandoned his motion. See
3.
We conclude that the state appellate court‘s adjudication of Batchelor‘s Faretta claim resulted in a decision based on an objectively unreasonable factual determination. See
IV.
In sum, we conclude that the trial court violated Batchelor‘s Sixth Amendment right to represent himself by erroneously denying a clear and unequivocal assertion of that right. See
Accordingly, we AFFIRM the district court‘s grant of habeas relief.
JAMES L. DENNIS
UNITED STATES CIRCUIT JUDGE
John C. McLEMORE, Trustee, Plaintiff-Appellant, EFS, Inc., et al., Plaintiffs-Appellants v. REGIONS BANK, as Successor in Interest by Merger to AmSouth Bank, Defendant-Appellee.
Nos. 10-5480, 10-5491.
United States Court of Appeals, Sixth Circuit.
Argued: March 1, 2012. Decided and Filed: June 8, 2012.