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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-30657

CALVIN GROSS

Petitioner - Appellant

v.

LYNN COOPER

Respondent - Appellee

Appeal from the United States District Court 

for the Middle District of Louisiana

USDC No. 3:05-CV-01052

Before GARWOOD, DENNIS, and PRADO, Circuit Judges.

PER CURIAM:*

Defendant Calvin Gross was indicted for one count of possession with the

intent to distribute marijuana and one count of distribution of cocaine in

Louisiana state court. In pre-trial hearings relating to both counts, Gross

explicitly rejected representation and agreed to self-representation in his two

separate trials on the two counts. The relevant colloquies in respect to his selfrepresentation with the state court judge are as follows:

[COURT]: You desire not to be represented by

the Public Defender; is that correct?

[DEFENDANT]: Yes.

[COURT]: You desire to represent yourself?

[DEFENDANT]: Yes.

United States Court of Appeals

Fifth Circuit

F I L E D

March 3, 2009

Charles R. Fulbruge III

Clerk
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[COURT]: So, you understand that you have

the right to counsel. You

understand, under our Constitution,

you have a right to legal counsel and

I have appointed for you, the Public

Defender, because you did not have

the ability to pay for any attorney.

[DEFENDANT]: Yes.

[COURT]: And you are desiring, at this time, to

release them from any further

obligation on your case?

[DEFENDANT]: Yes.

[COURT]: And you are waiving the right to

counsel; is that correct?

[DEFENDANT]: To the Public Defender.

[COURT]: Well, you want an attorney, you just

don’t want them, is that what you’re

telling me?

[DEFENDANT]: Yes.

[COURT]: Then, you’ll need to file a motion

because we are not going to do it on

just no hearing right here. So, you

file any motion you need to file and

we’ll get you back in here, because

you need to allege reasons why they

need to be out, because I’m not going

to just let them out. It doesn’t work

that way.

[DEFENDANT]: I don’t need them, I’ll just represent

myself.

[COURT]: Okay, well, then, you will need to file

whatever motions you desire.

At the second pre-trial hearing, the district court then had the following

exchange with Gross:

[COURT]: Alright, Mr. Gross, it’s my

understanding that you do not desire

the Public Defender’s Office to

represent you; is that correct?

[DEFENDANT]: That’s correct.
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[COURT]: Why is that?

[DEFENDANT]: He’s poor representation. I, I mean,

I sent you the Motion you told me to

send to you, I sent it to you.

[COURT]: And how does that answer the

question of why you don’t want them

to represent you?

[DEFENDANT]: Your Honor, we about to go to trial.

Ask him what he know about my

case besides what the police report

says.

[COURT]: No, no, I have put you under oath.

I’m asking you. I need, for the record,

for you to tell me why you don’t want

him to represent you, that’s all.

[DEFENDANT]: Well, this man never accept a phone

call from me, you understand.

Never, never, y’all ain’t know

nothing about what’s happening, you

know what I’m saying. Just tell me,

take thirty years, take forty -- no, I

can’t. I mean, he supposed to be my

lawyer.

[COURT]: Okay, here are your choices. The

Constitution allows you an attorney.

I have appointed you one. You don’t

get to pick and choose. If you can’t

afford one, I appoint you one.

So, here are your choices and it

doesn’t matter to me. You can have

the Public Defender’s Office or you

can represent yourself.

[COURT]: Which would you like?

[DEFENDANT]: I don’t need no help.

[COURT]: You don’t need help?

Okay. Let the Public Defender be relieved

of any further obligation. Let Mr. Gross be

his attorney.

Defense counsel informed the court that he had advised Gross of the penalties

for the charges that he was facing and that he could be facing life in prison as an
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habitual offender. Counsel also stated to the court that Gross had refused to sign

a document containing this advice concerning the charges. Gross, proceeding pro

se, was subsequently found guilty by a jury on both counts in two separate trials.

He was sentenced to consecutive sentences of 25 years and 30 years for his

marijuana and cocaine convictions respectively. On direct appeal, Gross argued

that the trial court erred in denying his right to counsel and ordering him to

proceed to trial without a valid waiver of his right to counsel. The Louisiana

Court of Appeals for the First Circuit affirmed both convictions and sentences

in 2-1 decisions. Judge Downing dissented from both decisions. He concluded

in both decisions that 

[t]he record should contain some indication that the trial court tried

to assess the defendant’s literacy, competency, understanding, and

volition before he accepted the waiver of counsel. . . . Other than

volition, none of these indications are in the instant record, nor is

there any showing the trial court adequately informed the

defendant of the dangers and disadvantages of representing himself.

Gross filed writs of certiorari for both convictions with the Louisiana Supreme

Court. The Louisiana Supreme Court denied the petitions by votes of 4-3.

Justice Johnson of the Louisiana Supreme Court assigned reasons in her dissent

from denial of the writs. Relying on Faretta v. California, 422 U.S. 806 (1975),

Justice Johnson stated that

a review of the transcript makes it abundantly clear that the trial

court failed to ascertain whether the defendant’s waiver of his right

to counsel was made intelligently. There is no indication that the

trial court made an attempt to assess the defendant’s literacy,

competency, understanding, and volition prior to accepting the

waiver of right to counsel. Moreover, the trial court made no

attempt to inform the defendant of the dangers and disadvantages

of self-representation. 

Louisiana v. Gross, 868 So. 2d 20, 21 (La. 2004) (Johnson, J., dissenting from

denial of the writ) (internal quotation marks omitted). The United States
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Supreme Court denied Gross’ petitions for writs of certiorari on January 10,

2005. Gross v. Louisiana, 543 U.S. 1056 (2005). 

Gross filed a 28 U.S.C. § 2254 application raising the same arguments

denied on direct appeal for both convictions. The magistrate judge recommended

that his application be denied. The district court adopted the magistrate judge’s

recommendations and also denied his application for a COA. Gross filed an

appeal. Without considering the merits, we remanded the case back to the

district court “for the limited purpose of determining whether its dismissal

involved Gross’s cocaine conviction or his marijuana conviction.” The magistrate

judge clarified that the denial of the application related to both convictions. The

district court adopted the magistrate judge’s recommendation and Gross timely

appealed. We then granted Gross a COA on the issue of “whether the district

court erred by allowing Gross to represent himself at trial without first obtaining

his knowing and intelligent waiver of his right to counsel” as it relates to both

convictions. 

STANDARD OF REVIEW

Gross’ application for section 2254 relief is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal

habeas court may not grant relief to a prisoner serving a state sentence with

respect to any claim adjudicated on the merits in a state court unless the state

court ruling “resulted in a decision that 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). A state decision

is “contrary to” clearly established federal law if the state court applies a rule

that is “substantially different from” or “contradicts” governing Supreme Court

precedent, or if the state court reaches a decision opposite that reached by the

Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor,

529 U.S. 362, 405 (2000).
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A decision involves an “unreasonable application” of federal law if the state

court “correctly identifies the governing legal rule but applies it unreasonably

to the facts of a particular prisoner’s case.” Id. at 407-08. An “unreasonable

application” of federal law must be something more than a mere incorrect

application. Id. at 410-11 (“[A] federal habeas court may not issue the writ

simply because that court concludes in its independent judgment that the

relevant state-court decision applied clearly established federal law erroneously

or incorrectly. Rather, that application must also be unreasonable.”). The state

court’s findings of fact are entitled to a presumption of correctness that can be

rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

ANALYSIS

In Faretta, the Supreme Court considered “whether a defendant in a state

criminal trial has a constitutional right to proceed without counsel when he

voluntarily and intelligently elects to do so” under the Sixth and Fourteenth

Amendments. 422 U.S. at 807. While every defendant has a right to proceed

without a lawyer, the choice to proceed must be made “voluntarily and

intelligently.” Id. Faretta emphasized that the defendant must understand that

he is not just relinquishing the right to counsel but also the specific benefits

associated with representation by counsel. Id. at 835. “When an accused

manages his own defense, he relinquishes, as a purely factual matter, many of

the traditional benefits associated with the right to counsel. For this reason, in

order to represent himself, the accused must ‘knowingly and intelligently’ forgo

those relinquished benefits.” Id. In order to ensure that the choice is voluntary

and intelligent, the Court noted that “[a]lthough 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. (quoting

Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Thus, a
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defendant must not only voluntarily give up the right to representation but must

do so after understanding the dangers and disadvantages of self-representation.

See Moran v. Burbine, 475 U.S. 412, 421 (1986) (noting that a voluntary,

knowing and intelligent waiver “must have been made with a full awareness of

both the nature of the right being abandoned and the consequences of the

decision to abandon it”). 

In subsequent cases, the Court has especially emphasized the need to

convey dangers of self-representation before a criminal defendant forgoes

counsel at trial. In Patterson v. Illinois, 487 U.S. 285, 298 (1988), the Court

noted that “recognizing the enormous importance and role that an attorney plays

at a criminal trial, we have imposed the most rigorous restrictions on the

information that must be conveyed to a defendant, and the procedures that must

be observed, before permitting him to waive his right to counsel at trial.”

(emphasis added). The Court in Iowa v. Tovar stated that “[a]s to waiver of trial

counsel, we have said that before a defendant may be allowed to proceed pro se,

he must be warned specifically of the hazards ahead.” 541 U.S. 77, 88-89 (2004)

(emphasis added). “Warnings of the pitfalls of proceeding to trial without

counsel, [the Court] therefore said, must be ‘rigorous[ly]’ conveyed.” Id. at 89

(quoting Patterson, 487 U.S. at 298). 

Consistent with the Court’s strong admonition that the trial court must

make sure the defendant is aware of the consequences of his waiver before

accepting the waiver, we read Faretta to require the trial court to inquire and

determine if the defendant intelligently waived his right to counsel. 

Lest there be a case in which a defendant clearly asserts the right

to defend pro se (so that denial of the right would be error) without

clearly waiving the right to counsel (so that there remains some

question whether the waiver was knowing and intelligent), a trial

judge should engage in a dialogue with such a defendant, explaining

to him the consequences of defending pro se. Faretta admonishes

that the defendant must be “made aware of the (advantages) and

disadvantages of self-representation.” 
 We explicitly adopted and reproduced the relevant section of The Benchbook for 1

Federal Judges (“The Benchbook”) as “a guide for questions the judge can ask to convey the

disadvantages the defendant will likely suffer if he proceeds pro se.” Jones, 421 F.3d at 363-64

& n.3. The relevant section of The Benchbook can also be used as an instructive guide for state

court judges in respect to their identical constitutional obligations under Faretta. We recognize

that sometimes less thorough warnings have also been approved, but the trial judge in this

case clearly fell below what is required by Faretta, because he conveyed little, if any, of the

information recommended by The Benchbook. See id. 

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Chapman v. United States, 553 F.2d 886, 892 (5th Cir. 1977) (quoting Faretta,

422 U.S. at 835). In United States v. Jones, we found the district court failed to

abide by Faretta when it only warned the defendant generally of the dangers of

self-representation and we therefore vacated the conviction. 421 F.3d 359, 364-

65 (5th Cir. 2005). Here, compared with Jones, this case presents a starker

failure to abide by Faretta – the trial court never warned the defendant of the

dangers of self-representation at all.1

Furthermore, we have stated that 

Faretta’s progeny and related cases flesh-out the factors which are

to be weighed [before accepting a waiver of counsel]. The court must

consider the defendant’s age and education . . . and other

background, experience, and conduct. . . . The court must ensure

that the waiver is not the result of coercion or mistreatment of the

defendant . . . and must be satisfied that the accused understands

the nature of the charges, the consequences of the proceedings, and

the practical meaning of the right he is waiving. 

McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir. 1985) (emphasis added).

Here, the trial judge only assured itself that the waiver was voluntary but did

not consider any background factors or engage in any dialogue to ascertain the

defendant’s awareness of the consequences or practical meaning of waiving

representation. Again, the trial court clearly did not abide by its obligations

under Faretta, because it did not inquire at all into the defendant’s background

before accepting his waiver of trial counsel. 

Finally, for waivers of constitutional rights generally, “[i]t has been

pointed out that courts indulge every reasonable presumption against waiver of
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fundamental constitutional rights and that we do not presume acquiescence in

the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938)

(internal quotation marks omitted). “For that reason, it is the State that has the

burden of establishing a valid waiver. . . . Doubts must be resolved in favor of

protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633

(1986). 

The Supreme Court in Tovar and Patterson specifically emphasized the

importance of conveying Faretta warnings “rigorously” for defendants requesting

to proceed pro se at trial. See Iowa, 541 U.S. at 89; Patterson, 487 U.S. at 298.

Faretta also requires the trial court to evaluate the background of the defendant

before accepting a waiver of counsel. McQueen, 755 F.2d at 1177. While this

case would clearly warrant a vacatur of a conviction on direct review, it is a

much closer case given our deference to state courts under AEDPA.

Nevertheless, the trial court plainly did not warn Gross about the dangers of

self-representation nor did it evaluate the defendant’s background. Based on: (1)

the Supreme Court’s plain and clearly-established admonitions that the trial

court rigorously warn the pro se defendant about the disadvantages of selfrepresentation at trial and to inquire into the defendant’s background before

accepting his waiver of counsel; (2) the trial court’s complete failure to warn

Gross in respect to the dangers of self-representation at trial and its complete

failure to inquire into Gross’ background at all before accepting his waiver of

counsel; and (3) the general presumptions against finding a valid waiver of

constitutional rights, we conclude that the state’s decision to find a valid waiver

of counsel in this case was an “unreasonable application” of federal law. 

For these reasons, we now order the district court to grant conditional

habeas relief. We REVERSE the district court’s judgment denying habeas relief

and REMAND this case to that court with instructions to order the State of

Louisiana to either give Calvin Gross a new trial or release him from custody

within 180 days of the date of the district court’s order on remand.