* 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that this opinion should not be published and is not precedent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. 00-40223

Summary Calendar

 

RODERICK BERNARD RAYFORD,

Petitioner-Appellant,

v. 

GARY L. JOHNSON, DIRECTOR, TEXAS DEPT.

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

--------------------

Appeal from the United States District Court

for the Southern District of Texas

(C-99-CV-80)

--------------------

April 13, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. 

PER CURIAM:*

Petitioner-Appellant Roderick Bernard Rayford, Texas inmate

#578381, who is seeking habeas corpus relief under 28 U.S.C. §

2254, is before us on a certificate of appealability (COA) that we

granted. We granted COA to determine whether Rayford clearly and

unequivocally asserted his constitutional right to represent

himself and, if so, whether his subsequent conduct constituted a

waiver of that right through acquiescence. For the sake of

argument, we assume without deciding that Rayford did clearly and
2

unequivocally assert the right to represent himself and that he was

denied that right by the actions of the state trial court in which

he was convicted of aggravated assault on a correctional officer

and retaliation. Even when we so assume, however, we conclude that

Rayford’s actions (more accurately, his inaction) following his

purported assertion and the trial court’s purported denial thereof

constituted waiver through acquiescence, and we deny habeas relief.

I. Proceedings

After a Texas state court jury convicted Rayford of aggravated

assault on a correctional officer and retaliation, he was assessed

concurrent 40-year prison sentences, to be served consecutively to

the sentence he was serving when the assault and retaliation

occurred. In his direct appeal he asserted as error the trial

court’s denial of his right to represent himself. His conviction

and sentence were affirmed on direct appeal, and he thereafter

exhausted his state habeas remedies, all to no avail. Rayford then

filed a petition for federal habeas relief in the district court

pursuant to § 2254, which that court deemed timely filed by virtue

of equitable tolling. The court ultimately dismissed Rayford’s

petition on the merits. We granted COA as indicated above.

II. Facts

One day before Rayford’s state jury trial commenced, his

counsel sought leave of court to withdraw. A hearing was held at

which Rayford stated that “[i]f the Judge wouldn’t appoint me

another counsel, then I would represent myself.” The trial court

expressed reservations about allowing Rayford to represent himself

and voiced uncertainty that it could appoint counsel with whom
3

Rayford would be satisfied. The trial court asked Rayford what he

would think about allowing present counsel to continue on the case

to answer questions and advise Rayford, to which Rayford replied,

“I could go along with that.” The court concluded the hearing by

announcing that it would rule on counsel’s withdrawal motion

momentarily. 

Following a recess, the court denied counsel’s motion to

withdraw. The court did not, however, rule expressly on Rayford’s

request to represent himself in the event that the court did not

appoint a different attorney; neither did the court explain either

its denial of counsel’s motion to withdraw or whether counsel was

to continue representing Rayford or was merely to serve in a standby capacity. For his part, Rayford neither objected to the court’s

action nor repeated his request to represent himself. 

III. Analysis

The operable facts raise serious doubts as to (1) whether

Rayford’s statement that “[i]f the Judge wouldn’t appoint me

another counsel, then I would represent myself” constitutes a clear

and unequivocal assertion of the right to self-representation, and

(2) whether the action of the court in denying Rayford’s counsel’s

motion to withdraw and causing counsel to continue, without making

clear whether counsel would be representing Rayford or merely

serving in a stand-by capacity, constituted rejection of Rayford’s

request. We nevertheless assume arguendo that Rayford’s remarks

did indeed constitute a clear and unequivocal assertion of his

right to self-representation and that the state trial court did

indeed deny his request. With these assumptions in place,
4

Rayford’s right to habeas relief hinges on whether, in light of

(1) the state court’s denial of counsel’s motion to withdraw and

failure to explain its denial of that motion, (2) the court’s

failure to rule expressly on Rayford’s request to represent

himself, and (3) the court’s failure to explain whether counsel was

continuing in the trial as Rayford’s legal representative or as

stand-by counsel only, subsequent occurrences evidence Rayford’s

acquiescence in the court’s actions and inaction and thereby

constitute waiver or forfeiture of the right of selfrepresentation. 

As we noted, when the trial court completed its ruling,

Rayford neither objected nor repeated his request. Instead, jury

selection began immediately and the trial court announced to the

jury, again without objection by or comment from Rayford, that he

was represented by counsel. Thereafter, counsel for Rayford

actively conducted the defense, participating in the voir dire and

conducting the evidentiary phase of the trial while Rayford sat by

mute. It is true that, at the conclusion of the trial and before

closing arguments, Rayford’s attorney did inform the court that

Rayford wanted to make a statement to the jury, and the court

denied Rayford’s request, restricting all communication to the jury

on behalf of the defense to that initiated by Rayford’s counsel.

Again, though, Rayford neither objected to this denial nor

mentioned the self-representation issue; neither did he move to

address the jury or otherwise represent himself at this final stage

of the proceedings. That does not change the final result.
1 Johnson v. McCotter, 803 F.2d 830, 833 (5th Cir.

1986)(citation and internal quotations omitted).

2 Brown v. Wainwright, 665 F.2d 607, 611 (5th Cir. 1982)(en

banc)(citation omitted).

5

Despite all that, Rayford still insists that he did nothing to

indicate abandonment of his effort to represent himself. He

characterizes his request to address the jury in closing argument

as demonstrating his persistent effort to gain self-representation.

Noting that a waiver must be clear, Rayford argues that his conduct

should not be interpreted as a waiver of the right of selfrepresentation. 

Not surprisingly, respondent insists that Rayford’s conduct

subsequent to the court’s pre-trial denial of counsel’s motion to

withdraw constituted a waiver of any purported pre-trial request by

Rayford to represent himself. Respondent relies largely on the

facts that Rayford did not re-assert the right to selfrepresentation at any juncture and instead sat by in silence and

allowed counsel to conduct the entire defense throughout the trial.

This, insists respondent, constituted waiver or forfeiture through

acquiescence, and we agree. 

“[A]fter the defendant has unequivocally asserted the right to

defend pro se, he may waive that right.”1 “[T]he right [of selfrepresentation] may be waived through defendant’s subsequent

conduct indicating he is vacillating on the issue or has abandoned

his request altogether.”2 The court may find a waiver if it
3 Id.

4 Id.

5 See id. at 609.

6 See id.

7 See id.

6

“reasonably appears...that defendant has abandoned his initial

request to represent himself.”3

Here, the district court concluded that Rayford waived the

right to represent himself: He failed to re-assert that right

following the trial court’s denial of counsel’s motion to withdraw,

and without comment or protest he allowed counsel to proceed with

active trial representation throughout that proceeding. The record

fully supports the district court’s findings in this regard. Even

though at the very end of the trial Rayford did request permission

to address the jury in closing argument, he never reiterated his

desire to represent himself or complained that the trial court

refused to let him do so. And even then, he sat in silence while

counsel conducted closing argument.

In Brown,

4 we found that a defendant who had invoked the right

to represent himself at his murder trial subsequently waived that

right. Some two months prior to trial, Brown had informed counsel

that he wanted to represent himself, after which counsel filed a

motion to withdraw.5 Brown also wrote letters to the court

informing it that he wanted to proceed pro se.

6 After a hearing on

the motion, the trial court deferred its ruling and asked counsel

to try to work out his differences with Brown.7 Counsel
8 See id.

9 See id. at 609-10. 

10 See id. at 610.

11 See id.

12 See id. at 611.

13 See id.

7

subsequently informed the trial court that he and Brown had

resolved their differences and that Brown had changed his mind and

wanted counsel to continue the representation.8 From that time

until commencement of trial, Brown never indicated to counsel or

the court that he wished to represent himself.9 Neither did he

renew his request to represent himself at the beginning of the

trial or any time during it, doing so only at the very end, just

before closing arguments.10 Brown’s trial court denied that lastminute request; and, on appeal, Brown conceded that he told counsel

to continue the representation.11

We concluded in Brown that the defendant’s conduct following

his initial request to represent himself amounted to a waiver of

that right.12 As support for our conclusion we relied on Brown’s

request for counsel to continue the representation and counsel’s

statement to the court that he and Brown had resolved their

differences.13 

Although the instant record is devoid of affirmative

statements by Rayford that counsel should continue or that he and

counsel had reconciled any differences, Rayford did inform the

trial court that he would be satisfied to have counsel stay on and
14 See id. at 610-11.

15 See id. at 611.

8

advise him. We acknowledge that, standing alone, this statement

would be insufficient, but thereafter Rayford unquestionably

acquiesced in counsel’s continued representation: He did not

object or re-assert the right to represent himself after the trial

court denied counsel’s motion to withdraw; and, in Rayford’s

presence, counsel conducted the voir dire, examined the witnesses,

and made objections, all without Rayford’s interference or attempt

to participate, much less voicing any objection or reiterating a

request to represent himself. His request to address the jury in

closing argument can hardly be credited as a request to represent

himself, much less a clear and unequivocal one —— and Rayford

failed to object when this request was denied.

We have explained that the right of self-representation is

more easily waived than is the right to counsel; this is true even

when the right to represent oneself has been asserted.14 Thus, our

case law’s stringent requirements for a finding of waiver of the

constitutional right to counsel are not applicable in this

situation.15 Therefore, even when we assume without deciding that

Rayford clearly and unequivocally asserted the right to represent

himself, and further assume without deciding that the actions of

the state trial court amounted to denial of that request, we are

nevertheless convinced that, at a minimum, Rayford clearly,

consistently, and continuously acquiesced, treating his attorney

not as stand-by or advisory counsel but as sole trial counsel ——
9

even to the exclusion of Rayford himself —— from voir dire through

closing argument. In so doing, Rayford waived any right to object

to the purported denial of his right to represent himself. 

The right to self-representation is susceptible of waiver by

implication or acquiescence as well as by express declaration: A

defendant, even one who has clearly and unequivocally asserted the

right to represent himself and who has had the right denied, cannot

thereafter remain silent while otherwise validly retained or

appointed counsel actively conducts the defense throughout the

entire jury trial, then be heard to claim entitlement to habeas

relief for the denial of his constitutional right of selfrepresentation. To mix metaphors, a defendant cannot lie behind

the log, sleeping on his rights, while counsel defends him, and

then cry “foul,” after all of the dust has settled. In light of

all that transpired without a hint of displeasure or objection,

Rayford’s request to address the jury cannot breathe life into his

long-abandoned request to represent himself, particularly in light

of his continued silence thereafter while his counsel conducted the

defense’s closing argument to the jury. 

We hold that Rayford waived the right to represent himself.

As such, we need not and therefore do not answer the questions

whether he clearly and unequivocally asserted that right and, if

so, whether the trial court denied him that right.

For the foregoing reasons, the judgment of the district court

is, in all respects,

AFFIRMED.