IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30021

DARREN MALLARD

Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

Respondent-Appellee

Appeal from the United States District Court 

for the Eastern District of Louisiana

Before KING, BARKSDALE, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

Darren Mallard, Louisiana prisoner # 366098, was convicted of possession

of more than four-hundred grams of cocaine in 1996 and subsequently sentenced

to forty years in prison as a third-time felony offender in 2001. The district court

denied Mallard’s 28 U.S.C. § 2254 petition. Mallard appealed the denial, and the

district court granted a certificate of appealability (COA) on two issues: (1)

whether the Louisiana district court’s determination that there was a valid

waiver of counsel as to one of Mallard’s predicate offenses was unreasonable in

light of the evidence presented in the State court proceeding, and, if so, whether

Mallard is entitled to relief because of the Fifth and Fourteenth Amendment

violations; and (2) whether trial counsel’s failure to challenge the predicate

United States Court of Appeals

Fifth Circuit

F I L E D

January 22, 2008

Charles R. Fulbruge III

Clerk
No. 07-30021

2

offenses constituted ineffective assistance of counsel, in violation of the Sixth

and Fourteenth Amendments. 

On habeas review, we review the district court’s findings of fact for clear

error and its legal conclusions de novo. Martinez v. Johnson, 255 F.3d 229, 237

(5th Cir. 2001). Where the petitioner’s claim has been adjudicated on the merits

by the state court, our review of the state court’s decision is deferential under §

2254(d), and federal habeas relief cannot be granted unless the state court’s

adjudication either “(1) 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, or (2) resulted in a decision that was

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)(1), (2); Miller-El

v. Cockrell, 537 U.S. 322, 340 (2003); Hughes v. Dretke, 412 F.3d 582, 588-89 (5th

Cir. 2005).

Mallard contends that his 1988 guilty plea in California state court for

possession for sale of cocaine base cannot serve as a predicate offense for his

habitual offender adjudication because the evidence does not support a finding

that he effectively waived his rightto counsel in that proceeding. This argument

is without merit. The record shows that the State introduced into evidence at

Mallard’s habitual offender adjudication a certified copy of the transcript of the

plea colloquy that resulted in Mallard’s 1988 guilty plea. The transcript reflects

that during the plea colloquy Mallard expressly waived his right to counsel. 

In Iowa v. Tovar, 541 U.S. 77, 92 (2004), the Supreme Court made clear

that state law, not federal law, allocates the appropriate burden of proof in a

collateral attack on an uncounseled conviction. See also Parke v. Raley, 506 U.S.

20, 33-34 (1992) (noting the range of contemporary state practices as to the

allocation of the burden of proof in a collateral attack on an uncounseled
No. 07-30021

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conviction). Under La. Rev. Stat. § 15:529.1(D)(1)(b), because the “presumption

of regularity” attached to Mallard’s 1988 guilty plea proceeding, he bore the

burden of proving to the Louisiana district court by a preponderance of the

evidence that he did not effectively waive his right to counsel. See also

Louisiana v. Deville, 879 So. 2d 689, 691-92 (La. 2004) (holding that a court may

“presume from a record which is not silent with respect to the waiver of counsel

that the defendant made a knowing and intelligent decision to proceed without

the guiding hand of an attorney and that the trial court would not have accepted

the waiver if the contrary had appeared”) (emphasis in original). In the state

post-conviction proceeding, Mallard conclusorily asserted that there was no

evidence that a valid waiver of the right to counsel was obtained at his 1988

guilty plea hearing. However, Mallard failed to provide any evidence or make

an offer of proof to the state court as to why his waiver of counsel was not

competent and intelligent. In these federal proceedings, Mallard has asserted

that he did not effectively waive his right to counsel because he was not

expressly informed of his right to counsel at trial, should he have decided to

proceed to trial, and of his right to appointed counsel. Once again, however,

Mallard fails to provide any evidence or make an offer of proof that he did not

know he had a right to counsel at trial or to appointed counsel. 

Moreover, as the Supreme Court held in Tovar, it has not “prescribed any

formula or script to be read to a defendant who states that he elects to proceed

without counsel.” 541 U.S. at 88. Rather, “[t]he constitutional requirement is

satisfied when the trial court informs the accused of the nature of the charges

against him, of his right to be counseled regarding his plea, and of the range of

allowable punishments attendant upon the entry of a guilty plea.” Id. at 81.

Tovar further instructs that we may look at the particular facts and
No. 07-30021

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circumstances of a case, “including the defendant’s education or sophistication,

the complex or easily grasped nature of the charge, and the stage of the

proceeding,” to determine whether a defendant made a knowing and intelligent

waiver of counsel. Id. at 88. Here, we note the following facts: the colloquy

occurred at a pretrial stage, which allows for a less searching or formal colloquy,

see Patterson v. Illinois, 487 U.S. 285, 299 (1988); Mallard had previously been

represented in the 1988 proceedings by counsel and he had been on the verge of

representing himself attrial when he decided to plead guilty;the prosecutor had

discussed the right to counsel and the consequences of pleading guilty with

Mallard offthe record just before the plea hearing; the California trial judge was

satisfied that Mallard had been properly advised of his constitutional rights and

the consequences of his plea at the conclusion of the colloquy; and Mallard had

previously been represented by counsel when he pleaded guilty to robbery in

California state court in 1985, see Parke, 506 U.S. at 37 (“We have previously

treated evidence of a defendant’s prior experience with the criminal justice

system as relevant to the question whether he knowingly waived constitutional

rights.”).

In sum, based on our review of the record, we cannot say that the state

court’s denial of Mallard’s ineffective waiver of counsel claim was contrary to, or

involved an unreasonable application of, clearly established federal law or that

the state court’s determination of the facts was unreasonable in light of the

evidence before it. See 28 U.S.C. § 2254(d)(1), (2). 

Finally, as to Mallard’s ineffective assistance of counsel claim, he was

required to show in state court that his counsel’s performance was deficient and

fell below an objective standard of reasonableness and that his counsel’s

deficient performance prejudiced his defense. See Strickland v. Washington, 466

U.S. 668, 687 (1984). In support of his contention that the state court’s failure
No. 07-30021

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to find prejudice was unreasonable, Mallard asserts simply that “[h]ad trial

counsel challenged the 1988 waiver at the original enhancement hearing, the

outcome would have been different.” We have recognized that such a conclusory

assertion is insufficient to show prejudice under the second prong of Strickland.

See Green v. Johnson, 160 F.3d 1029, 1041 (5th Cir. 1998). Therefore, Mallard

fails to show an unreasonable application of federal law.

Accordingly,the judgment ofthe district court dismissing Mallard’s § 2254

petition is AFFIRMED.