IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30516 

UNITED STATES OF AMERICA,

Plaintiff - Appellee

v.

LEN DAVIS,

Defendant - Appellant

Consolidated with 14-30552

In re: LEN DAVIS,

Petitioner

Appeals from the United States District Court

for the Eastern District of Louisiana

USDC No. 2:12-CV-752

Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.

PER CURIAM:*

 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

October 28, 2015

Lyle W. Cayce

Clerk

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This court has consolidated an interlocutory appeal and a petition for 

writ of mandamus, which both stem from an order in a 28 U.S.C. § 2255 

proceeding. The order at issue vacated a previous order that had allowed the 

§ 2255 petitioner, Len Davis (“Davis”), to proceed pro se with the assistance of 

standby counsel. More specifically, the order challenged on appeal allows 

Davis to proceed pro se as to the 19 claims that he agreed to raise; however, 

with respect to the 10 claims that standby counsel raised and Davis declined 

to raise, the district court appointed standby counsel to litigate those claims. 

Concluding that the district court erred in denying Davis his statutory right to 

proceed pro se, we VACATE and REMAND for further proceedings.

I. BACKGROUND

In 1996, Davis, a former New Orleans Police Officer, was convicted of a 

civil rights murder and sentenced to death. 18 U.S.C. §§ 241 and 242. On his 

direct appeal, this court upheld the instant convictions but reversed the 

sentence and remanded for a new penalty trial. United States v. Causey and 

Davis, 185 F.3d 407 (5th Cir. 1999).1 On remand, Davis informed the court 

that he wanted to proceed pro se during the re-sentencing trial. The district 

court held a Faretta2 hearing and found that Davis had made a knowing and 

intelligent decision to represent himself. Nonetheless, the court ruled that the 

Sixth Amendment right to represent one’s self does not apply to sentencing. 

Davis successfully sought a writ of mandamus in which this court instructed 

 

1 There was a third conviction for willfully killing to prevent the victim from 

communicating to law enforcement officers regarding a possible federal crime. This court 

reversed that conviction for insufficient evidence. Causey, 185 F.3d at 421–23. The death 

sentences were vacated because the jury did not make separate recommendations regarding 

the appropriate penalty for each count of conviction. Id. at 423. 

2 Faretta v. California, 422 U.S. 806 (1975). “A Faretta hearing is a hearing conducted 

to gauge whether a defendant has invoked his or her right to self-representation knowingly, 

voluntarily, and competently; the judge conducting the hearing must also warn the defendant 

of the dangers and pitfalls of self-representation.” United States v. Richardson, 478 F. App’x 

82, 86 n.9 (5th Cir. 2012).

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the district court to permit Davis to represent himself at sentencing. United 

States v. Davis, No. 01-30656, 2001 WL 34712238 (5th Cir. July 17, 2001) 

(“Davis I”). Subsequently, on remand, the district court issued an order 

appointing independent counsel, stating that counsel was to represent the 

interest of the public with respect to affording Davis a full and fair sentencing 

phase. Davis again petitioned for a writ of mandamus, and this court granted 

the petition, holding that the appointment of independent counsel to present 

evidence that Davis declined to present violated Davis’s Sixth Amendment 

Right to self-representation. United States v. Davis, 285 F.3d 378, 384–85 (5th 

Cir. 2002) (“Davis II”).3 

In July of 2005, the re-sentencing proceedings were held before a jury. 

Ultimately, the jury returned a verdict recommending a death sentence. The 

district court sentenced Davis to death, and he appealed. This court affirmed 

his convictions and sentence of death. United States v. Davis, 609 F.3d 663, 

699 (5th Cir. 2010), cert. denied, 562 U.S. 1290 (2011).

Thereafter, Davis informed the district court that he wished to proceed 

pro se during his habeas proceedings. The district court held another Faretta 

hearing and found that he understood the consequences of proceeding without 

counsel and that he waived his right to counsel voluntarily. The court also 

appointed Dr. Mancuso, a psychiatrist, to examine Davis. After examination, 

Davis was found competent to make the decision to represent himself. The 

court then appointed standby counsel, explaining that Davis would be in 

charge of representing himself. 

 

3 On remand, the district court held that the indictment’s failure to include the 

required intent element and aggravating factor for substantial planning and premeditation 

prohibited a death sentence. On appeal, this court held that the error was harmless and 

remanded the cause. United States v. Davis, 380 F.3d 821, 830 (5th Cir. 2004). 

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However, on March 20, 2012, without Davis’s permission, standby 

counsel filed several motions on his behalf, including a § 2255 motion that 

raised 29 issues. Nineteen of the issues challenged his underlying convictions, 

and Davis agreed to raise those issues. The remaining issues challenged his 

death sentence and his competency, and Davis refused to agree to raise those 

issues. Standby counsel then filed a Motion to Vacate Grant of Faretta Relief, 

seeking to preclude Davis from proceeding pro se. The district court then 

conducted a status conference in April 2012, with Davis participating by 

telephone. Davis again informed the court that he only wanted to raise 

challenges to his convictions. The district court requested Davis to submit a 

letter specifying which issues he would adopt, and Davis complied. Davis also 

filed a response in which he opposed counsel’s motion to vacate his Faretta

relief. 

Because Davis did not want to raise any issues regarding his mental 

health or his death sentence, the court ordered another psychiatrist, Dr. 

Nasbaum, to evaluate Davis. After the examination, Dr. Nasbaum likewise 

concluded that Davis was competent and found no evidence of psychosis. The 

court adopted Dr. Nasbaum’s opinion finding Davis competent. Davis filed 

another opposition to standby counsel’s motion, and stated that if his right to 

self-representation was violated, he would waive any § 2255 review.

On April 9, 2013, the district court vacated its previous order and ruled 

that Davis had no Sixth Amendment right of self-representation under Faretta, 

and that he had waived any right of self-representation under 28 U.S.C. § 1654 

by failing to expressly assert that statutory right.4 Nonetheless, the court 

allowed Davis to represent himself with respect to the 19 issues he agreed to 

 

4 Section 1654 provides as follows: “In all courts of the United States the parties may 

plead and conduct their own cases personally or by counsel as, by the rules of such courts, 

respectively, are permitted to manage and conduct causes therein.” 

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raise in his petition. With respect to the remaining 10 competency and 

sentencing issues, standby counsel would represent Davis. After speaking 

with Davis on the phone, standby counsel then filed a motion to strike from the 

petition the claims Davis did not agree to raise. The government moved for 

partial reconsideration of the order granting the motion to vacate the grant of 

Faretta relief. Ultimately, the district court denied both the government’s 

motion to reconsider and standby counsel’s motion to strike certain claims, 

ruling that Davis had no right to represent himself. However, Davis was 

allowed to represent himself as to the claims he agreed to raise. Davis then 

filed a notice of interlocutory appeal and a petition for writ of mandamus. He 

also moved for appointment of new counsel on appeal. The court denied the 

motion to appoint counsel and granted Davis leave to proceed in forma 

pauperis on appeal. The interlocutory appeal and petition for writ of 

mandamus are now before this court.

II. ANALYSIS

A. Jurisdiction

As a threshold matter, this court must examine the basis of its 

jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). As set forth 

above, Davis filed a notice of interlocutory appeal from the district court’s 

order, in which it vacated in part a previous order that had granted him leave 

to proceed pro se.5 The government contends that we have jurisdiction over 

this appeal pursuant to the collateral order doctrine. Under that doctrine, a 

party may “appeal a collateral order if the order (1) conclusively determines 

the disputed question, (2) resolves an important issue completely separate 

from the merits of the action, and (3) is effectively unreviewable on appeal from 

 

5 In § 2255 proceedings, a petitioner cannot take an appeal from a final order unless 

a circuit judge issues a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B). 

However, because this appeal is not from a final order, no COA is required.

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a final judgment.” In re Bradford, 660 F.3d 226, 228 (5th Cir. 2011) (citation 

and internal quotation marks omitted). We agree that Davis’s claim of the 

denial of the right to proceed pro se satisfies all three of the prongs of this test. 

See Prewitt v. City of Greenville, Miss., 161 F.3d 296, 298 (5th Cir. 1998)

(holding that a denial of the right to proceed pro se falls within the collateral 

order doctrine). 

Davis has also petitioned this court for a writ of mandamus. Because 

we have jurisdiction over this appeal pursuant to the collateral order doctrine, 

we dismiss as moot Davis’s petition for mandamus.

B. Statutory Right to Proceed Pro Se

Davis argues that the district court denied him the right to represent 

himself in violation of 28 U.S.C. § 1654. Section 1654 provides as follows: “In 

all courts of the United States the parties may plead and conduct their own 

cases personally or by counsel as, by the rules of such courts, respectively, are 

permitted to manage and conduct causes therein.” Citing § 1654, this court 

has noted that a “habeas petitioner does have a statutory right to self 

representation.” Scott v. Wainwright, 617 F.2d 99, 102 n.3 (5th Cir. 1980) (28 

U.S.C. § 2254 habeas case); see also Anderson v. United States, 948 F.2d 704, 

705 n.3 (11th Cir. 1991) (recognizing that although a § 2255 petitioner has a 

statutory right to represent himself, because there were allegations that he 

was incompetent, counsel was appointed to represent him) (citing 28 U.S.C. 

§ 1654). 

The district court ruled that Davis had forfeited any statutory right to 

represent himself because his pleadings only referred to his constitutional 

right under Faretta. Davis argues that the district court erred in finding that 

he waived his statutory claim. The government agrees. 

On March 7, 2011, Davis first asserted his right to represent himself

during post-conviction proceedings. At that time, Davis filed a document in 

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the district court entitled “Notification to Court Not to Appoint Nor Assign any 

Lawyers to Represent Defendant on PostConviction.” In that notice Davis did 

not specifically reference either a statutory or constitutional right to proceed 

pro se. 

Subsequently, standby counsel filed a “Motion to Vacate Grant of Faretta

Relief,” seeking to preclude Davis from proceeding pro se. The district court 

ordered Davis to file any opposition to standby counsel’s Motion to Vacate 

Faretta Relief by March 14, 2013. On February 29, 2013, Davis filed a response 

opposing standby counsel’s motion. In that response, he did cite to his Sixth 

Amendment Right to self-representation. In addition, however, Davis relied 

upon this court’s two prior opinions issuing the writ of mandamus, Davis I and 

Davis II. In the first opinion, this court cited and discussed Davis’s statutory 

right to self-representation under § 1654. Davis, 2001 WL 34712238, at *1. 

Although that opinion involved waiver of counsel at trial, Davis was relying on 

that authority in his request to proceed pro se during his § 2255 proceedings. 

Thus, he was relying on his statutory right to represent himself. Further, it is 

well settled law that federal courts liberally construe briefs filed by pro se 

litigants to “avoid waiver.” United States v. Gonzalez, 592 F.3d 675, 680 n.3 

(5th Cir. 2009); accord Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining 

that the court holds a pro se litigant’s pleadings “to less stringent standards 

than formal pleadings drafted by lawyers”). Under these circumstances, we 

are persuaded that Davis sufficiently raised his statutory right to proceed pro 

se.

In addition to finding the claim waived, the district court also noted that 

the right to self-representation under the statute is limited by the phrase “by 

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the rules of such courts.” That is correct.6 Here, however, the district court 

did not identify a rule of the court that would prevent Davis from representing 

himself. Further, the district court has repeatedly had Davis examined for 

competency by psychiatrists and, based on their evaluations, has found him 

competent to waive his right to counsel each time.7 Indeed, the district court 

is currently allowing Davis to proceed pro se with respect to all 19 of the claims 

that Davis agreed to raise in this § 2255 proceeding. This indicates that the 

court does not have an issue with Davis’s ability to proceed pro se. In light of 

the court’s determination that Davis is competent and that his waiver of 

counsel was voluntarily and intelligently made, the district court erred in 

ordering standby counsel to litigate issues he did not agree to raise. 

Accordingly, the district court erred in not allowing Davis to exercise his 

statutory right to represent himself in the instant proceedings. 

C. Constitutional Right to Proceed Pro Se

Davis also argues that the district court violated his Sixth Amendment 

right to proceed pro se. Because we have determined that his statutory right 

to represent himself was violated, we do not need to address whether he had a 

constitutional right to represent himself. See Ysleta del Sur Pueblo v. State of 

Tex., 36 F.3d 1325, 1332 (5th Cir. 1994) (explaining that this court “should not 

reach constitutional issues when a case can be resolved on other grounds”). 

D. In Forma Pauperis

Davis has filed a motion to proceed in forma pauperis (IFP) with this 

court. To obtain leave to proceed IFP, a petitioner must demonstrate financial 

 

6 As previously set forth, § 1654 provides as follows: “In all courts of the United 

States the parties may plead and conduct their own cases personally or by counsel as, by the 

rules of such courts, respectively, are permitted to manage and conduct causes therein.”

(emphasis added).

7 According to the government, Davis has been found competent to waive his right to 

counsel four times since his conviction. 

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eligibility and a nonfrivolous issue for appeal. See FED. R. APP. P. 24(a); 28 

U.S.C. § 1915(a)(1). Here, however, the district court had already granted 

Davis’s motion to proceed IFP on June 17. Rule 24(a)(3) provides that if a 

district court grants a motion to proceed IFP, that party may proceed IFP on 

appeal without further authorization.8 See also Tanks v. Perez, 27 F. App’x 

325, 327 (6th Cir. 2001) (denying the motion for leave to proceed IFP as 

unnecessary because the petitioner had previously been granted IFP status by 

the district court). Thus, we deny as unnecessary the motion for leave to 

proceed IFP. 

E. Motion for Appointment of Counsel

Davis has filed a motion with this court for appointment of counsel on 

appeal. The district court denied his motion for appointment of appellate 

counsel, stating that the “record reflects that thirteen attorneys have 

represented the defendant to date and that two of them continue to serve as 

counsel. The defendant’s insistence that he is capable of representing himself 

should extend to his proceeding pro se in pursuit of the immediate appellate 

review he now seeks.” The court also noted that the “budget for defense counsel 

on collateral review in a capital case has been exhausted in this matter.” In 

his motion before this court, Davis asserts that his current stand-by attorneys 

have an obvious conflict and thus could not represent him on this appeal. 

Davis points out that these attorneys filed the motion to vacate the order 

granting him leave to proceed pro se, and he is now challenging the district 

court’s grant of that motion.

Generally speaking, there is no constitutional entitlement to appointed 

counsel in post-conviction relief proceedings. Pennsylvania v. Finley, 481 U.S. 

 

8 There are some exceptions when further authorization is needed—such as when a 

district court finds that the appeal is not taken in good faith—but those are not relevant in 

the instant case. 

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551, 555 (1987). Nonetheless, under the Criminal Justice Act, 18 U.S.C. § 

3006A(a)(2)(B), a district court may appoint counsel for a § 2255 petitioner who 

is financially eligible if the court determines that “the interests of justice so 

require.” The decision whether to appoint counsel is within the discretion of 

the district court. United States v. Garcia, 689 F.3d 362, 363 (5th Cir. 2012) 

(citing United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995)). 

Here, Davis appears to have a general understanding of his case and has 

filed appropriate briefing on appeal. We believe that supplemental briefing by 

appointed counsel would not further aid the court and would be an inefficient 

use of resources. Thus, we conclude that the court did not abuse its discretion 

in denying the motion to appoint appellate counsel. See Self v. Blackburn, 751 

F.2d 789, 793 (5th Cir. 1985). 

F. Reassignment of Case to another District Judge

In its brief, the government suggests that this court should reassign the 

case to another district judge on remand. Although this court has the power 

to reassign a case to another judge, it is an “extraordinary power that is rarely 

invoked.” In re DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir. 2002) 

(citations and internal quotation marks omitted). 

To determine whether to invoke this power, this court employs two 

different tests. Id. We first consider whether the “facts might reasonably 

cause an objective observer to question [the judge’s] impartiality.” Id. at 701 

(citation and internal quotation marks omitted). Second, we look to the 

following factors:

(1) whether the original judge would reasonably be expected 

upon remand to have substantial difficulty in putting out of his or 

her mind previously-expressed views or findings determined to be 

erroneous or based on evidence that must be rejected, (2) whether 

reassignment is advisable to preserve the appearance of justice, 

and (3) whether reassignment would entail waste and duplication 

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out of proportion to any gain in preserving the appearance of 

fairness.

Id. at 700–01 (citation omitted). 

The government asserts that the district court’s rulings with respect to

Davis’s right to proceed pro se would reasonably cause an objective observer to 

question the neutrality of the district court or even conclude the court has 

taken on the role of an advocate in Davis’s case. We are not persuaded that 

the court’s actions would cause an objective observer to question the neutrality 

of the court. We note that the court allowed Davis to proceed pro se on the 

issues he raised. We interpret the court’s rulings as attempting to ensure that 

his habeas proceedings are conducted properly. Moreover, “judicial rulings 

alone almost never constitute a valid basis for finding bias or impartiality.” 

Test Masters Educ. Serv., Inc. v. Robin Singh Educ. Serv., Inc., 799 F.3d 437, 

455 (5th Cir. 2015) (internal quotation marks and citations omitted). 

As for the second test, we are confident that the district court will follow 

the mandate in this opinion and allow Davis to represent himself. Further, we 

are not persuaded that reassignment is needed to preserve the appearance of 

justice.9 Finally, we note that Davis has not joined the government in its 

request to reassign his case to another judge. Accordingly, we decline to 

reassign this case to a different district judge. 

III. CONCLUSION

For the above reasons, the district court’s judgment is VACATED and 

REMANDED for proceedings consistent with this opinion. We DISMISS as 

MOOT the petition for writ of mandamus. We DENY as unnecessary the 

 

9 Because we conclude that reassignment is not needed to preserve the appearance 

of justice, we need not address whether reassignment would entail waste and duplication out 

of proportion to any gain in preserving the appearance of fairness.

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motion for leave to proceed IFP. We DENY the motion to appoint appellate 

counsel.

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