1 District Judge of the Southern District of Mississippi, sitting by designation. United States Court of Appeals,

Fifth Circuit.

No. 92-2162.

Juan A. GOMEZ, Petitioner-Appellant,

v.

James A. COLLINS, Director, Texas Department of Criminal Justice, Institutional Division,

Respondent-Appellee.

June 14, 1993.

Appeal from the United States District Court for the Southern District of Texas.

Before JOLLY and DAVIS, Circuit Judges, BRAMLETTE 1 , District Judge.

BRAMLETTE, District Judge:

A lawf ully empaneled grand jury indicted Juan Gomez for the delivery of a controlled

substance (cocaine), enhanced by two prior convictions, one for auto theft and one for possession of

cocaine. He is currently serving an 80-year sentence in a Texas state prison after a jury found him

guilty. In a separate sentencing proceeding following trial, the same Texas state jury enhanced

Gomez's punishment based upon the two prior felony convictions. The District Court adopted the

Magistrate Judge's findings and recommendations denying the federal habeas relief sought by Gomez.

Gomez appealed the District Court's decision. We affirm.

I.

Inasmuch as Gomez apparently can neither speak nor understand the English lang uage, an

interpreter assisted at trial. On August 23, 1990, following the verdict and the sentence, Gomez

properly filed with the Texas intermediate court, the Houston Fourteenth Circuit Court of Appeals,

a written notice of appeal, together with a pauper's oath requesting appointed counsel. In response,

the Co urt appointed Henry Oncken, a former U.S. attorney and former state court judge. On

November 13, 1990, before the appellate brief was due in the Texas intermediate court, Gomez filed

with the Texas Court of Appeals for the First Circuit, his pro se motion to waive his right to counsel.The Texas Court of Appeals for the First Circuit forwarded Gomez's waiver to the Texas Fourteenth

Circuit Court of Appeals in Houston, where his case was pending. Insofar as we can determine, there

was no ruling on the motion.

On November 29, 1990, Mr. Oncken t imely filed with the Texas Fourteenth Circuit Court of

Appeals in Houston an appellate brief on behalf of Gomez. At the time of filing, there is no indication

that Mr. Oncken was aware of Gomez's pro se motion. The state filed its reply brief in the case, and

Gomez responded by filing his pro se motion to abate the appeal and to remand the case to the trial

court fo r a hearing on his motion to waive counsel on appeal. In the alternative, Gomez sought

permission from the Texas appellate court to represent himself. He requested that the appellate

record be sent to him, and he sought 30 days within which to submit his p ro se brief. The Court

denied Gomez's motion. On February 12, 1991, Mr. Oncken filed a motion for reconsideration of

the court's denial of Gomez's pro se motion t o abate the appeal. The court denied this motion

without stated reasons, and on March 7, it affirmed Gome z 's conviction and sentence in an

unpublished opinion.

On March 22, 1991, Gomez filed with the Texas Court of Cri minal Appeals a petition for

discretionary review, and with the Texas Supreme Court, a petition for writ of mandamus. In these

documents, for the first time, Gomez set forth his reasons for proceeding pro se in his appeal. In the

mandamus petition, Gomez states that Mr. Oncken, by filing the request to reconsider Gomez's pro

se motion to abate the appeal, admitted, "that his representation has been anything but adequate."

In the petition for discretionary review, Gomez complained that Mr. Oncken raised only two issues

in the appellate brief filed by Mr. Oncken on behalf of Gomez. Gomez failed to suggest what other,

if any , issues should have been raised. The Texas Supreme Court forwarded the petition for

discretionary review to the Texas Court of Criminal Appeals where both petitions were subsequently

denied.

On September 24, 1991, Gomez filed in the United States District Court for the So ut hern

Dist rict of Texas a petition for habeas corpus relief. United States Magistrate Judge George Kelt

issued findings and recommendations that the relief sought by Gomez be denied. Subsequent to the2 In Borning v. Cain, 754 F.2d 1151 (5th Cir.1985), the panel held that the district court erred

in dismissing a prisoner's habeas corpus petition without considering the claim that he was denied

his right to an adequate and effective appeal because he had inadequate access to the prison's law

library. The panel instructed the district court how to proceed in its analysis of the habeas corpus

claim, stating that "[f]irst, the district court must determine whether [the defendant] had a right to

represent himself on direct appeal." Id. at 1153. Magistrate's findings, United States District Judge David Hittner issued orders adop ting the

Magistrate's findings and recommendations, holding that Gomez failed to raise a constitutional claim

cognizable in federal habe as co rpus proceedings and that even if a constitutional right to

self-representation on appeal does exist, Gomez did not properly invoke it. This appeal t imely

followed.

II.

There is no clearly defined standard regarding a state criminal appellant's constitutional right

to wai ve court-appoi nted counsel and to proceed, p ro se, at the appellate level. The court was

presented with a similar i ssue on at least one pri or occasi on. 2 The case was resolved without

addressing the constitutional issue above mentioned. Similarly, this court resolves the issues before

it on other grounds.

Assuming, indeed, that a state criminal appellant enjoys a United States constitutional right

to self-representation on appeal, this Court is of the opinion that Gomez failed to properly waive his

right to court-appointed appellate counsel. There are no recognized standards by which to measure

an appellant's effective waiver of his constitutional right to appellate counsel and by which to invoke

his assumed constitutional right to self-representation. The Court looks to the United States Supreme

Court decision in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), for

guidance. In F

aretta, the Supreme Court delineated the stand ards which govern the right to

self-representation at trial, and, thus, provided this Court with guidelines in determining the standards

which should logically apply to self-representation upon appeal.

The right to self-representation at trial can be invoked only by a defendant who expressly,

knowingly, and intelligently waives the right to counsel. F aretta, 422 U.S. at 835, 95 S.Ct. at 2541.

Although Gomez's pro se motion for waiver of counsel uses unequivocal language, the motion was3 Johnson v. Puckett, 929 F.2d 1067, 1072 (5th Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct.

274, 116 L.Ed.2d 226. admittedly prepared by a fellow inmate. It is, therefore, doubtful that Gomez "kno wingly and

intelligently" waived his right to counsel.

According to the district court, whose factual findings we are bound to accept unless we find

them to be "clearly erroneous," 3 Gomez neither reads, writes nor speaks the English language. The

district court concluded that the inmate writer who prepared the pleadings f or Mr. Gomez, i n al

l

probability, did not sufficiently advise Gomez of the dangers of proc eeding p ro se and, thus, the

Court concluded that Gomez's waiver was not "express, knowing, and intelligent." The brief filed

by the government argues that Gomez, in fact, is not seeking self-representation as he neither writes,

speaks or understands the English languag e, but, instead, Mr. Gomez is apparently seeking lay

representation from a fellow inmate. Such lay representation on a direct appeal is clearly

impermissible. United States v. Bertolini, 576 F.2d 1133, 1133 (5th Cir.1978); Tex.Gov't.Code §

81.102 (1993).

III.

For the reasons discussed above, we affirm the decision of the district court.

AFFIRMED.