REVISED May 2, 2013

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 11-40696

RAY CHARLES MILLER,

Petitioner–Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

CORRECTIONAL INSTITUTIONS DIVISION,

Respondent–Appellee.

Appeal from the United States District Court

for the Eastern District of Texas

Before KING, DAVIS, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

Ray Charles Miller (“Miller”) appeals the district court’s denial of his 28

U.S.C. § 2254 application challenging his guilty-plea conviction for intoxicated

manslaughter with a vehicle. We granted a certificate of appealability (“COA”)

on three issues: (1) whether Miller’s trial counsel provided ineffective assistance

regarding a lapsed plea offer from the State; (2) whether the trial court violated

Miller’s rightto self-representation by denying his requestto proceed pro se; and

(3) whether Miller’s trial counsel provided ineffective assistance because he

refused to move to withdraw or had a conflict of interest. We AFFIRM.

I.

United States Court of Appeals

Fifth Circuit

F I L E D

May 1, 2013

Lyle W. Cayce

Clerk
No. 11-40696

1 We base our summary of the facts on the state-court record, in accordance with the

Supreme Court’s decision in Cullen v. Pinholster. 131 S. Ct. 1388, 1398 (2011) (holding that

federal habeas review under § 2254(d)(1) “is limited to the record that was before the state

court that adjudicated the claim on the merits”). 

2

In March 2007, a Texas grand jury indicted Miller for intoxicated

manslaughter with a vehicle.1 On the day before jury selection for Miller’s trial,

the State offered Miller a plea bargain with a recommended sentence of 16 years

of imprisonment. Miller’s trial counsel, Scott E. Scammahorn (“Scammahorn”),

described his communications with Miller regarding the 16-year offer: 

During that consultation with Mr. Miller, I

communicated to Mr. Miller the final offer from the

District Attorney’s office, which was 16 years. I

informed Mr. Miller that the ADA was awaiting our

answer as they had numerous witnesses preparing to

travel to Tyler for the trial and that if he rejected this

offer, it would either be withdrawn or increase in prison

time. I further communicated to Mr. Miller that he had

cocaine in his system and that the expert I retained to

review the evidence could not be called as a witness as

he would not testify favorably. I further informed Mr.

Miller that he was facing 25 years to life in prison due

to prior convictions and that an offer of 16 years for

Intoxicated Manslaughter is exceptional given the

circumstances. Mr. Miller was adamant that he would

NOT take the 16 years and that something told him

“the number is 12” and that he would not take anything

more than 12. I urged Mr. Miller to reconsider and

stated that this was the best deal he would be offered.

Mr. Miller became agitated and again REJECTED the

16 year offer, stating that he would never take that

deal. He instructed me to go to the District Attorney’s

office with the 12 year counter offer, which I did. The

ADA said no and they would be ready for trial.

Just prior to our pretrial hearing the following

day, I spoke with Mr. Miller and he again stated he

would not accept the 16 year offer. I requested and was

granted the opportunity to place Mr. Miller on the

record rejecting said offer. A few minutes later

however, Mr. Miller decided to take the offer. I asked

the ADA if the offer remained open and was advised
No. 11-40696

3

that said offer had been withdrawn. 

Miller tells a different story. According to Miller, Scammahorn failed to relay

the prosecutor’s response to the counteroffer in a timely manner, and this delay

effectively denied him the opportunity to accept the 16-year offer. There is some

record support for Miller’s version of events. At the pretrial hearing, Miller

stated: “I asked Mr. Scammahorn to go back and see if he could get it a little

lower, but get back with me that same day, so I could make a decision on it. I

was willing to make a decision on [the prosecutor’s] offer that day, but there was

a misunderstanding between me and Mr. Scammahorn.” Scammahorn

explained thatthe miscommunication “could have been partially [his] fault.” He

told the court that Miller “did say go back to [the prosecutor], which I did,

knowing the answer, and I didn’t get back to him, because I knew the answer.

But I didn’t—I communicated to his wife and maybe that’s where the

miscommunication took place.” 

Considering this purported miscommunication and other issues between

Miller and Scammahorn, Miller sought to proceed pro se. In a lengthy exchange,

the trial court questioned Miller about his experience with the law and explained

the dangers of self-representation. Although Miller remained steadfast in his

request to proceed pro se, the court decided not to allow it, stating: “I don’t

believe you’re qualified to represent yourself. I don’t have a motion from Mr.

Scammahorn to allow him to withdraw. But under the present state of the

record, he is still your retained attorney, and that’s the way the Court is going

to leave it.” The trial court explained that Miller could not use a last-minute

request for self-representation to “manipulate the orderly administration of

justice,” adding “based on your answers to my questions and the fact that you’ve

got retained counsel standing here, I’m simply not in a position to let you

represent yourself.” 

The parties reached a plea agreement the following day, after jury

selection was complete. The State agreed to recommend a sentence of 35 years
No. 11-40696

4

of imprisonment in Miller’s intoxicated manslaughter case and to dismiss a

separate indictment against Miller for felony theft. In return, Miller agreed to

plead guilty and to waive certain rights, including the right to appeal. Miller

also pleaded true to having two prior state felony convictions, which exposed him

to a statutory imprisonment range of 25 years to life as a habitual offender. Tex.

Penal Code § 12.42(d). Pursuant to the plea agreement, Miller signed several

written documents, including an Acknowledgment of Admonishments, as well

as a Waiver of Trial by Jury and Waiver of Confrontation and Agreement to

Stipulate. 

Miller appealed his case to the state court of appeals, which dismissed his

appeal based on the express appeal waiver contained in Miller’s guilty plea

agreement. Miller v. State, No. 12-08-00053-CR, 2009 WL 531528, at *1 (Tex.

App.—Tyler 2009, pet. ref’d). The Texas Court of Criminal Appeals (“TCCA”)

refused a petition for discretionary review. Id. 

Miller then filed a state habeas application claiming, inter alia, that his

trial counsel provided ineffective assistance by failing to keep him informed of

the status of the 16-year plea offer before it lapsed, and that the trial court and

his trial counsel violated his right to self-representation. In its Findings of Fact

and Suggested Conclusions, the state habeas court took judicial notice of all

prior proceedings and entered findings of fact and conclusions of law, including:

- [Miller] entered his pleas of his own free will.

- There was no credible evidence before the Court that

the defendant’s counsel provided ineffective assistance

of counsel. The contrary is in fact indicated by the

record where it shows that counsel continued to

successfully advocate for the defendant without any

objection from the defendant.

- Nothing in the record of this case indicates that the

defendant had a direct conflict of interest with his trial

counsel, or that counsel failed to convey any plea offers

from the State.
No. 11-40696

5

- The Court did not err in refusing to allow the defendant

to proceed pro se where no motion to withdraw was filed

by the defendant’s trial attorney.

A state appeals court affirmed, and the Texas Court of Criminal Appeals denied

Miller’s application without written order. 

In his instant § 2254 application, Miller asserted the same claims raised

in his state habeas application. The magistrate judge recommended denial of

Miller’s § 2254 application on the merits and the denial of a COA on the grounds

that: (1) Miller waived his claims by pleading guilty, and (2) the claims failed on

the merits. Over Miller’s objections, the district court adopted the magistrate

judge’s report and recommendation, denied his § 2254 application, and denied

a COA. Miller timely appealed the district court’s judgment, and sought and

obtained a COA on the three issues stated above. 

II.

In reviewing a district court’s decision on a § 2254 application, we review

the district court’s findings of fact for clear error and its conclusions of law de

novo. Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007). We must also

consider the deferential standards of the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), which the district court applied in evaluating Miller’s

§ 2254 claims. See id. Pursuant to AEDPA, we cannot grant federal habeas

relief on claims adjudicated on the merits in state court unless the adjudication

resulted in a decision that: (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court ofthe United States”; or (2)“was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.”

§ 2254(d). Moreover, we presume the state court’s factual findings to be correct

unless the applicant rebuts the presumption by clear and convincing evidence.

§ 2254(e)(1).
No. 11-40696

2 The parties dispute whether Miller’s guilty plea waived these challenges. Because we

agree with the state habeas court and the district court that Miller’s claims fail on the merits,

we need not address the guilty-plea waiver issue, which is complicated by Missouri v. Frye, 132

S. Ct. 1399 (2012) and United States v. Sanchez Guerrero, 546 F.3d 328 (5th Cir. 2008). 

3 Miller argues that the state habeas court misconstrued his ineffective-assistance-ofcounsel claim, such that de novo review is appropriate. See Henderson v. Cockrell, 333 F.3d

592, 600–01 (5th Cir.2003) (holding that a misconstrued claim was not “adjudicated on the

merits” for the purposes of AEDPA and, as a result, applying de novo review). Having

reviewed Miller’s pleadings and the state habeas court’s decision, we disagree. While the state

habeas court may not have described Miller’s claim in precisely the manner he preferred, it

addressed the substantive legal issues he presented. Therefore, we apply AEDPA deference

to Miller’s claims. 

6

Section 2254(d) sets forth a “highly deferential standard for evaluating

state-court rulings, which demands that state-court decisions be given the

benefit of the doubt.” Pinholster, 131 S. Ct. at 1398 (internal quotation marks

and citation omitted). To satisfy the standards of § 2254(d), a state prisoner

must show that the state court’s ruling on his claim “was so lacking in

justification that there was an error well understood and comprehended in

existing law beyond any possibility for fairminded disagreement.” Harrington

v. Richter, 131 S. Ct. 770, 786–87 (2011).

Having described the contours of AEDPA’s highly deferential framework,

we now turn to the three claims certified for appeal.2

A.

First, Miller claims that his trial counsel provided ineffective assistance

in allowing the State’s plea bargain offer to lapse.3 To prevail on a claim of

ineffective assistance of counsel, the defendant must show that his “counsel’s

performance was deficient” and that “the deficient performance prejudiced the

defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish

deficient performance, Miller “must show that counsel’s representation fell below

an objective standard of reasonableness.” 466 U.S. at 688. In evaluating

deficiency, we apply a “strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Id. at 689. A failure to
No. 11-40696

7

establish either deficient performance or prejudice defeats the ineffectiveassistance-of-counsel claim. Id. 

In the context of an ineffective-assistance-of-counsel claim subject to

AEDPA deference, “the pivotal question is whether the state court’s application

ofthe Strickland standard was unreasonable.” Richter, 131 S. Ct. at 785. While

“[s]urmounting Strickland’s high bar is never an easy task,” “establishing that

a state court’s application of Strickland was unreasonable under § 2254(d) is all

the more difficult.” Id. at 788 (citations omitted). “[A] habeas court must

determine what arguments or theories supported or, as here, could have

supported, the state court’s decision; and then it must ask whether it is possible

fairminded jurists could disagree that those arguments or theories are

inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at

786. Put simply, both the Strickland standard and the AEDPA standard are

“highly deferential” and “when the two apply in tandem, review is ‘doubly’ so.”

Id. (citations omitted). 

Here, Miller asserts that Scammahorn’s communication failure regarding

the 16-year plea offer constituted ineffective assistance of counsel. Specifically,

Miller claims that Scammahorn never relayed the State’s response to his 12-year

counteroffer, and that he would have accepted the State’s initial 16-year plea

offer had he known that it was final. This claim implicates the Supreme Court’s

recent decision in Missouri v. Frye, which held that the Sixth Amendment right

to effective assistance of counsel extends to plea negotiations. 132 S. Ct. 1399,

1408 (2012). In Frye, the court noted the general rule that defense counsel has

a duty to communicate formal offers from the prosecution where the relevant

terms and conditions may result in a lesser sentence, a conviction on lesser

charges, or both. Id. We have previously held, and now reiterate, that Frye did

not announce a new rule of constitutional law because it “merely applied the

Sixth Amendment right to counsel to a specific factual context.” In re King, 697

F.3d 1189, 1189 (5th Cir. 2012). Therefore, we may consider Frye when
No. 11-40696

4 Given that we resolve Miller’s ineffective-assistance-of-counsel claim involving the

lapsed 16-year plea offer from the State on Strickland’s deficiency prong, we need not address

the issue of prejudice. See Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984) (“[I]n

addressing [an ineffective-assistance] claim, we need not . . . address both stages ofthe inquiry

if an insufficient showing is made as to one.”).

8

determining whether the state habeas court’s decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law.”

§ 2254(d)(1). 

The facts of this case, however, are readily distinguishable from Frye.

Here, the state habeas court expressly found that “[n]othing in the record . . .

indicate[d] that counsel failed to convey any plea offers from the State.”

Compare Frye, 132 S. Ct. at 1410 (“On this record, it is evident that Frye’s

attorney did not make a meaningful attemptto inform the defendant of a written

plea offer before the offer expired.”). In reaching its conclusion, the state habeas

court credited Scammahorn’s affidavit, which indicated that he informed Miller

ofthe State’s 16-year offer and counteroffered with 12 years, as Miller instructed

him to do. Scammahorn further stated that he met with Miller after the State

rejected Miller’s counteroffer, at which time Miller again said that he would not

accept the State’s initial 16-year offer. Miller has not, by clear and convincing

evidence, rebutted the presumption of correctness owed to the state habeas

court’s factual determination. See Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir.

2012) (affirming that pursuant to AEDPA, “a determination of a factual issue

made by a State court shall be presumed to be correct,” and that presumption

must be rebutted by “clear and convincing evidence” (quoting 28 U.S.C.

§ 2254(e)(1)); see also Richards v. Quarterman, 566 F.3d 553, 563 (5th Cir. 2009)

(affirming that “the state habeas court’s factual determinations, including its

credibility findings, are entitled to a presumption of correctness”). Thus, Miller’s

claim cannot survive under Strickland and AEDPA’s combined, “doubly”

deferential review. Richter, 131 S. Ct. at 786.4
No. 11-40696

5 The trial court considered Miller’s request to proceed pro se untimely, as Miller did not

raise it until only a few hours before jury selection. The state habeas court apparently agreed

when it made this determination. The Supreme Court has recognized that the right to selfrepresentation “is not absolute” under Faretta, and that “most courts require [the defendant]

to [invoke the right] in a timely manner.” Martinez v. Court of Appeal of Cal., 528 U.S. 152,

161–62 (2000); see also id. at 162 (“Even at the trial level, therefore, the government’s interest

in ensuring the integrity and efficiency ofthe trial at times outweighs the defendant’s interest

in acting as his own lawyer.”). This determination also supports the state court’s denial of

habeas relief on this claim. See § 2254(d).

9

B.

Second, Miller claims that the trial court violated his right to selfrepresentation when it denied his request to proceed pro se at trial. A criminal

defendant has a constitutional right to self-representation at trial when he

knowingly and intelligently waives the right to counsel. Faretta v. California,

422 U.S. 806, 807, 835 (1975). The defendant’s waiver of his right to counsel

must be unequivocal, and it should not be inferred by the court in the absence

of a clear and knowing election. Brown v. Wainwright, 665 F.2d 607, 610 (5th

Cir. 1982) (en banc). Before accepting a waiver of counsel, the court must

consider and weigh:

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

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

must ensure thatthe waiver is notthe result of coercion

or mistreatment of the defendant . . . and must be

satisfied thatthe accused understands the nature ofthe

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). 

The state habeas noted that it “conducted a serious and extensive inquiry

into the defendant’s claim of a conflict of interest and his desire to proceed pro

se.” It also made three factual determinations involving Miller’s selfrepresentation claim: (1) that Scammahorn continued to advocate successfully

for Miller during the course of the proceedings without objection from Miller,

even after the trial court denied Miller’s motion to proceed pro se;

5

(2) that “[t]he

record indicates that the defendant was equivocal in his intent to fire his
No. 11-40696

6 Miller sought to proceed pro se at two stages of the proceedings. First, he requested

thatScammahornwithdraw abouttwoweeks before the pretrial hearing. But this request was

equivocal, because Miller contemporaneously requested for Scammahorn to obtain a more

favorable plea agreement from the State. For that reason, it fails. Brown, 665 F.2d at 610.

Second, Miller sought to proceed pro se at the pretrial hearing. Any ineffective assistance

claim arising out of this time period fails because the record shows that any motion that

Scammahorn would have filed to withdraw from the case would have been futile. The state

trial court stated explicitly that it “wouldn’t grant a motion by Mr. Scammahorn to withdraw.”

We “ha[ve] made clear that counsel is not required to make futile motions or objections.” Koch

v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citing Murray v. Maggio, 736 F.2d 279, 283 (5th

Cir. 1984)). Based on these facts, Miller cannot show that Scammahorn assistance was

deficient, especially pursuantto Strickland and AEDPA’s “doubly” deferential review. Richter,

131 S. Ct. at 786. 

10

retained trial counsel where he asked counsel to continue to negotiate a plea

agreement for him even after allegedly terminating his services”; and (3) that

“[t]he Court did not err in refusing the allow the defendant to proceed pro se

where no motion to withdraw was filed by the defendant’s trial attorney.” 

Pursuant to AEDPA, these determinations of the state habeas

court—which stress that Scammahorn successfully advocated for Miller during

the course of his proceedings—are entitled to deference. See Batchelor, 682 F.3d

at 405; Richards, 566 F.3d at 563. Miller has failed to demonstrate that the

state habeas court’s decision was contrary to, or an unreasonable application of,

clearly established federal law, or that it was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding. § 2254(d). Accordingly, Miller is not entitled to habeas relief on his

self-representation claim.

C. 

Third, Miller claims that Scammahorn provided ineffective assistance

regarding his right to self-representation on two grounds. First, Miller argues

that Scammahorn refused to withdraw from the case after he expressed a clear

and unequivocal wish to proceed pro se.

6 Second, he contends that Scammahorn

had a conflict of interest, and therefore, abdicated his duty of loyalty to Miller

by refusing to withdraw from the case. 
No. 11-40696

7 We further reject this claim based on the state habeas court’s determination that

“[n]othing in the record indicates that the defendant had a conflict of interest with his trial

counsel . . . .” Determinations of whether an actual conflict existed and whether the conflict

had an adverse effect are mixed questions of law and fact. United States v. Infante, 404 F.3d

376 (5th Cir. 2005). Given the lack of evidence in the state court record showing an actual

conflict of interest, we conclude that the state habeas court’s decision is entitled to deference

under AEDPA. See Batchelor, 682 F.3d at 405; Richards, 566 F.3d at 563.

11

These challenges fail for the same reasons involving Miller’s selfrepresentation claim articulated above. Specifically, the state habeas court

determined that Scammahorn advocated successfully for Miller throughout the

proceedings and that Miller equivocated in his request to proceed pro se.

7 This

factual determination of the state habeas courtis entitled to deference pursuant

to AEDPA. See Batchelor, 682 F.3d at 405; Richards, 566 F.3d at 563. Because

it is reasonable, we agree with the district court that Miller is not entitled to

habeas relief on this claim.

III.

For the foregoing reasons, we AFFIRM the district court’s denial of

Miller’s habeas petition.