1Wood makes several additional arguments in connection with

his ineffective assistance of counsel claim, specifically that: (1)

1

United States Court of Appeals

Fifth Circuit

FILED

June 26, 2007

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

______________________ 

No. 05-70042

______________________

JEFFERY LEE WOOD,

Petitioner-Appellant,

versus

NATHANIEL QUARTERMAN, Director,

Texas Department of Criminal Justice,

Correctional Institutions Division,

Respondent-Appellee.

Appeal from the United States District Court

for the Western District of Texas

________________________________________________

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:

This case involves a 28 U.S.C. § 2254 petition filed by

Jeffery Wood, a Texas death row inmate. The district court

dismissed the petition in its entirety, but granted Wood a

certificate of appealability (“COA”) on his claims: (1) that the

state trial court violated his Sixth Amendment right to selfrepresentation by denying his request to proceed pro se during the

punishment phase of his trial; and (2) in the alternative, that his

trial counsel were ineffective for failing to present any

mitigating evidence during the punishment phase of Wood’s trial.1
because counsel failed to present any evidence during the

punishment phase, the court should presume that Wood was prejudiced

by their ineffective assistance, see United States v. Cronic, 466

U.S. 648 (1984); and (2) that counsel should have requested a

competency evaluation during the punishment phase of the trial.

The district court found that these additional arguments had not

been fairly presented to the state courts and were therefore

procedurally defaulted, but it granted Wood a COA on these related

claims. 

2

We conclude that the state court’s decision denying Wood’s claims

was not contrary to, and did not involve an unreasonable

application of, clearly established federal law, and we therefore

AFFIRM.

I. Background

On January 22, 1996, petitioner Jeffery Wood was indicted in

Texas for capital murder in connection with a shooting that

occurred during a convenience store robbery. Prior to trial, the

state court conducted two competency hearings to determine whether

Wood was competent to stand trial. At the conclusion of the first,

a jury determined that Wood was not competent to stand trial at

that time, but would likely attain competency in the foreseeable

future. After that hearing, Wood was committed to a state

psychiatric facility. The facility’s staff later informed the

court that it believed that Wood was competent to stand trial. At

that point, the trial court held a second competency hearing, at

which the jury determined that Wood was competent to stand trial.

Wood was convicted of capital murder by a jury on February 25,

1998. Immediately after the jury returned its guilty verdict, Wood
2The following colloquy was reprinted in the district court’s

opinion. See Wood v. Dretke, 386 F. Supp. 2d 820 (W.D. Tex. 2005).

3

informed the trial judge that he wanted to terminate his lawyers

and proceed pro se during the punishment phase of his trial.2 Wood

said that he was not dissatisfied with counsel’s representation,

but explained that he did not want to present any evidence during

the punishment phase or cross-examine any of the state’s witnesses.

Wood further stated that he did not want to force his lawyers to

sit and do nothing on his behalf and that, in any event, he did not

believe that they would comply with his wishes.

The trial court denied Wood’s motion. The court first

informed Wood that he controlled the conduct of his attorneys:

“Mr. Wood, you control your defense. You know, attorneys

ultimately are going to have to follow your lead as to what you

want to do. They can’t overrule you.” The court then stated that

it was denying Wood’s motion to proceed pro se because it wanted to

ensure that he was able to understand the sentencing proceedings:

I’m going to deny your request to represent

yourself in the second phase. The issue,

especially the death penalty issue, is so

intense from both an emotional standpoint and

a legal standpoint, that I don’t feel

comfortable with you understanding all the

concepts of what’s going on and not having

legal counsel that you can rely on.

. . . . 

But I’m going -- I’m going to tell you once
3The court permitted counsel to document Wood’s instructions

to them by having Wood speak to them with a court reporter present.

Counsel did this on at least two occasions.

4

again that you need to direct your attorneys

on how you want them to prepare your defense

or how you want them to react to evidence and

then rely on their expertise in doing what you

want to do, but I’m going to deny your request

to fire your attorneys.

After the court ruled, defense counsel expressed concern that

the ruling put them “on the horns of a dilemma” about whether or

not to follow their client’s instructions, since Wood had

instructed them to not cross-examine any of the state’s witnesses

and to not call any defense witnesses during the punishment phase.

The trial judge acknowledged the difficulty of the situation, but

reminded counsel that “it’s your client and your call whether or

nor [sic] you want to bring [defense witnesses] or cross-examine

anybody. I can’t tell you to do or not to do it.”3 During this

exchange, the trial court explained in further detail its reasons

for denying Wood’s motion to proceed pro se:

[I]f the Defendant would have wanted to do his

own defense and had theories about how he

wanted to conduct his own defense, I think I

would have to go through a very slow process

of determining whether or not he had

voluntarily decided to waive his right to

counsel and had the ability to go ahead and

present his own defenses, but it appears, kind

of reading through the lines, that Mr. Wood

wants to not put – to not defend himself.

. . . . 

And if he doesn’t want to defend himself, I

want him to have counsel to tell him what that
5

means and to explain to him what his options

are if he doesn’t want to examine a witness,

what that means by not cross-examining or

calling a witness, and so I want him to have

attorneys there telling him what everything

means, every step when you’re making this

decision . . . .

I’m going to stay with my prior ruling of not

allowing Mr. Wood to represent himself and

keeping you and Mr. Whitlow on the case, but I

would welcome you to take a look at this issue

and see if you can find any precedent for it

in the next two or three days.

Several days later, Wood renewed his request to proceed pro se

by written motion. Shortly before the punishment phase of the

trial was to begin, the court addressed, and denied, Wood’s renewed

motion. After eliciting Wood’s admission that counsel were

cooperating with his directives, the court again explained its

ruling:

Based on the testimony I’ve heard about your

educational background and your experience

with the criminal justice system, I’m of the

opinion that you still need to have counsel

with you that you could ask questions of and

make sure that you know what’s going on and

that you’re not taken advantage of by this

proceeding, so I note that you have requested

to represent yourself and I’m going to deny

that request and continue these gentlemen as

your counsel and you have the advantage of

calling on them whenever you want to call on

them during the punishment phase of trial.

The trial court does not appear to have considered the timing of

Wood’s motion as a factor in denying his request to proceed pro se.

Throughout the punishment phase of the trial, Wood’s counsel

complied with his instructions. They did not cross-examine any of
4Because the Court of Criminal Appeals simply adopted

wholesale the habeas trial court’s findings and conclusions, we

refer only to the “state habeas court” throughout this opinion.

6

the state’s punishment-phase witnesses, and the defense did not

present any evidence of its own. After deliberating for

approximately one hour, the jury returned a verdict that: (1) Wood

would be a future danger to society; (2) Wood deliberately caused

the death of the victim; and (3) there were insufficient mitigating

circumstances to warrant a life sentence. Wood was sentenced to

death based on those jury findings.

Wood’s conviction and sentence were affirmed on direct appeal.

In March 2000, Wood filed a state habeas petition asserting some 29

claims for relief. On October 2, 2000, the state trial court

denied relief. As is relevant here, the court found that: (1) the

trial court did not err in denying Wood’s request to proceed pro se

because, based on the trial court’s “accumulated knowledge” of

Wood’s circumstances, it “was in an adequate position to make and

[sic] meaningful determination on the issue,” and because “the

request for self-representation was not presented in a timely

manner”; and (2) trial counsel did not provide ineffective

assistance, in light of Wood’s specific and repeated directives

that counsel not put on a defense during the punishment phase of

the trial. On May 9, 2001, the Texas Court of Criminal Appeals

adopted the trial court’s findings of fact and conclusions of law

and denied relief.4
7

Wood then filed his section 2254 petition with the district

court. In a lengthy opinion dated August 24, 2005, the district

court dismissed the petition. With respect to Wood’s request to

proceed pro se, the district court first noted that the state trial

court applied an incorrect legal standard when it denied Wood’s

motions. Wood, 386 F. Supp. 2d at 857. Nevertheless, the district

court held that the state habeas court’s decision denying Wood

relief on this claim was not an unreasonable application of federal

law because “the core concerns of Faretta [v. California, 422 U.S.

806 (1975)] were not violated during the punishment phase of

petitioner’s trial.” Id. at 858-60. Relying on McKaskle v.

Wiggins, 465 U.S. 168 (1984), the district court reasoned that,

under the circumstances, Wood’s lawyers “served as little more than

standby counsel for petitioner during the punishment phase” of the

trial, and that the state habeas court could therefore have

reasonably concluded that this arrangement did not run afoul of

Faretta’s “core” concern, i.e., that Wood be able to maintain

control over the conduct of his defense. Wood, 386 F. Supp. 2d at

858-60. In light of this disposition, the district court did not

reach the state habeas court’s additional finding that Wood’s

motion to proceed pro se was untimely. Id. at 860 n.72.

With respect to Wood’s ineffective assistance of counsel

claims, the district court found that two of Wood’s arguments —

that he was entitled to a presumption of prejudice under the
8

Supreme Court’s decision in Cronic, see 466 U.S. at 659-62, and

that counsel were ineffective for failing to request a competency

evaluation during the punishment phase of the trial — were not

exhausted before the state courts and were therefore procedurally

defaulted. Wood, 386 F. Supp. 2d at 839-48, 863-65. As for Wood’s

exhausted claim — that his trial attorneys were ineffective because

they complied with his instructions and failed to present any

mitigating evidence during the punishment phase — the district

court found that Wood failed to establish that he was prejudiced by

counsel’s failure to put on a mitigation case. Because Wood had

not shown prejudice, the district court declined to decide whether

counsel’s performance was deficient. Id. at 849-53.

II. Standard of Review

This court reviews the district court’s findings of fact for

clear error and its legal conclusions de novo, applying the same

standards as the district court. See, e.g., Thompson v. Cain, 161

F.3d 802, 805 (5th Cir. 1998).

Wood’s application for section 2254 relief is governed by the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).

Under AEDPA, a federal habeas court may not grant relief to a

prisoner serving a state sentence with respect to any claim

adjudicated on the merits in a state court unless the state court

ruling “resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as
9

determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d). A state decision is “contrary to” clearly established

federal law if the state court applies a rule that is

“substantially different from” or “contradicts” governing Supreme

Court precedent, or if the state court reaches a decision opposite

that reached by the Supreme Court on a set of materially

indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405

(2000). 

A decision involves an “unreasonable application” of federal

law if the state court “correctly identifies the governing legal

rule but applies it unreasonably to the facts of a particular

prisoner’s case.” Id. at 407-08. An “unreasonable application” of

federal law must be something more than a mere incorrect

application. Id. at 410-11 (“[A] federal habeas court may not

issue the writ simply because that court concludes in its

independent judgment that the relevant state-court decision applied

clearly established federal law erroneously or incorrectly.

Rather, that application must also be unreasonable.”). 

The state court’s findings of fact are entitled to a

presumption of correctness that can be rebutted only by clear and

convincing evidence. 28 U.S.C. § 2254(e)(1).

III. Wood’s Faretta Claim

Under the principles announced by the Supreme Court in Faretta

v. California, 422 U.S. 806, 835-36 (1975), a competent criminal
5In Godinez v. Moran, 509 U.S. 389, 399-402 (1993), the

Supreme Court held that the standard of competency for waiving the

right to counsel is the same as the standard for determining

whether a defendant is competent to stand trial.

10

defendant has a Sixth Amendment right to represent himself at trial

if he waives his right to counsel, and a trial court cannot deny

the defendant’s motion to proceed pro se on the ground that the

defendant lacks sufficient knowledge or understanding of the law.

The Faretta right is not, however, without limitation. The

exercise of the right to self-representation is contingent on the

defendant’s knowing and intelligent waiver of the right to be

represented by counsel. See id. at 835.5 The Faretta court also

noted that a court may terminate the right to self-representation

where the defendant fails to abide by courtroom rules and/or

engages in obstructionist conduct. Id. at 834 & n.46. Moreover,

a trial court can appoint stand-by counsel to assist the defendant

(even over the defendant’s objection), so long as stand-by counsel

does not unduly impinge on the defendant’s self-representation.

Id. at 834 n.46; McKaskle, 465 U.S. at 174-79. Finally, a trial

court need not permit a defendant to proceed pro se where the

defendant’s motion to do so is untimely. See, e.g., Martinez v.

Court of Appeal, 528 U.S. 152, 162 (2000) (noting that “most

courts” require defendant to assert right to self-representation

“in a timely manner”).

In this case, the state habeas court provided two reasons for
11

its denial of Wood’s Faretta claim: (1) that the trial court had

“accumulated knowledge of [Wood’s] circumstances” and “was in an

adequate position to make and [sic] meaningful determination of the

issue”; and (2) that Wood’s motion to proceed pro se was untimely.

The federal district court held that, although the trial court and

the state habeas court applied an incorrect substantive legal

standard when considering Wood’s motion to represent himself, the

decision to deny the motion was not an unreasonable application of

federal law. The district court did not reach the state habeas

court’s additional finding that Wood’s motion was untimely.

Because we hold that the state habeas court did not unreasonably

apply federal law when it held that Wood’s motion was untimely, we

do not reach its decision on the substance of Wood’s claim.

As noted above, courts have discretion about whether to grant

a defendant’s motion to proceed pro se when the motion is untimely.

See, e.g., Martinez, 528 U.S. at 162; United States v. Davis, 269

F.3d 514, 520 (5th Cir. 2001) (“The district court was not obliged

to honor Davis’s mid-trial request to represent himself.”) (citing

Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983)); see

also Haynes v. Cain, 298 F.3d 375, 384 (5th Cir. 2002) (en banc)

(Dennis, J., concurring). In this case, Wood did not move to

proceed pro se until after the jury had already returned a guilty

verdict against him, immediately before the sentencing phase of his

trial, and the trial court therefore had the discretion to deny the
6Indeed, the trial court appears to have denied Wood’s motion

for the impermissible reason that the court did not believe that

Wood was capable of adequately representing himself without

counsel.

12

motion. Although the trial court did not base its decision on the

untimeliness of Wood’s motion,6 the last reasoned state court

decision — the decision of the state habeas court — did. Because

no decision of the Supreme Court obligates state courts to permit

self-representation when the defendant fails to invoke his Faretta

right in a timely manner, we are compelled to find that the state

habeas court’s holding that Wood was not entitled to relief because

his motion was untimely was neither contrary to, nor an

unreasonable application of, federal law. See Marshall v. Taylor,

395 F.3d 1058, 1060-62 (9th Cir.) (rejecting Faretta claim where

trial court denied motion for self-representation for impermissible

reason, but state appellate court found that motion was untimely),

cert. denied, 126 S. Ct. 139 (2005).

IV. Ineffective Assistance of Counsel

To prevail on a claim of ineffective assistance of counsel, a

defendant must ordinarily establish both that counsel’s performance

was objectively deficient and that the defendant was prejudiced by

counsel’s deficient performance. Strickland v. Washington, 466

U.S. 668, 687 (1984). Counsel’s performance is evaluated against

an objective standard of reasonable performance based on accepted

professional norms. See Rompilla v. Beard, 545 U.S. 374, 380
7It is of note that Wood argues only that counsel were

ineffective for failing to present mitigating evidence; he does not

claim that counsel failed to conduct a sufficient investigation for

mitigation evidence. See, e.g., Blanco v. Singletary, 943 F.2d

1477, 1502 (11th Cir. 1991) (“[A] defendant’s desires not to

present mitigating evidence do not terminate counsel’s

responsibilities during the sentencing phase of a death penalty

trial: ‘The reason lawyers may not ‘blindly follow’ such commands

is that although the decision whether to use such evidence is for

the client, the lawyer first must evaluate potential avenues and

advise the client of those offering potential merit.’”) (quoting

Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986)).

13

(2005). To show prejudice, a petitioner must establish that but

for counsel’s performance, there is a reasonable probability that

the outcome of the proceeding would have been different.

Strickland, 466 U.S. at 694. To assess prejudice in the capital

sentencing context, the court “reweigh[s] the evidence in

aggravation against the totality of the available mitigating

evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).

The district court found that Wood had exhausted his state

remedies with respect to only one of his three, related ineffective

assistance of counsel claims — his primary claim that trial counsel

were ineffective for following his instructions and not presenting

any mitigating evidence during the punishment phase of the trial.7

The state habeas court rejected this claim, holding that Wood’s

counsel did not render deficient performance. The district court

denied relief on the ground that Wood was not prejudiced by any

deficient performance because the mitigating evidence that Wood

claims his counsel should have presented was “extremely meager” in

comparison to the prosecution’s punishment-phase evidence. See
8The district court did not determine whether Wood had

established deficient performance, but it did note what it

considered to be an “obvious conflict between the plain language of

Strickland” and the state’s reading of several Fifth Circuit cases

that state that a defendant cannot prevent his counsel from

presenting a particular defense and later claim that counsel was

ineffective for having failed to present that defense. Id. at 854.

9The Autry court also rejected the defendant’s claim that

counsel was required to request a competency hearing before

agreeing to comply with the client’s decisions. Id.

14

Wood, 386 F. Supp. 2d at 850-52.8

Wood is not entitled to relief on this claim. Neither the

Supreme Court nor this court has ever held that a lawyer provides

ineffective assistance by complying with the client’s clear and

unambiguous instructions to not present evidence. In fact, this

court has held on several occasions that a defendant cannot

instruct his counsel not to present evidence at trial and then

later claim that his lawyer performed deficiently by following

those instructions. In Autry v. McKaskle, 727 F.2d 358 (5th Cir.

1984), the defendant prevented his attorney from presenting any

mitigating evidence during the punishment phase of his capital

trial. A panel of this court rejected Autry’s claim that counsel

was ineffective for heeding his instructions: “If Autry knowingly

made the choices, [his lawyer] was ethically bound to follow

Autry’s wishes.” Id. at 362;9 see also Arnold v. Cockrell, 273

F.3d 1094 (5th Cir. 2001) (unpublished). Moreover, other decisions

of this court have rejected similar claims. See Nixon v. Epps, 405

F.3d 318, 325-26 (5th Cir. 2005) (finding that counsel was not
10Cf. Schriro v. Landrigan, 127 S. Ct. 1933, 1940-41 (2007)

(stating that, if defendant instructed counsel not to present

mitigating evidence, “counsel’s failure to investigate further

could not have been prejudicial under Strickland”); Amos v. Scott,

61 F.3d 333, 348-49 (5th Cir. 1995) (denying ineffective assistance

claim for want of prejudice where defendant “strongly opposed”

presenting any witnesses during punishment phase of trial).

11Because Wood’s claim fails on the deficient performance

prong, we do not consider Wood’s additional claim (which the

district court dismissed as unexhausted) that counsel’s performance

should be presumed to be prejudicial under United States v. Cronic,

466 U.S. 648 (1984).

15

ineffective for failing to present additional mitigating evidence

over client’s objection; “A defendant cannot block his counsel from

attempting one line of defense at trial, and then on appeal assert

that counsel was ineffective for failing to introduce evidence

supporting that defense.”); Roberts v. Dretke, 356 F.3d 632, 638

(5th Cir. 2004) (noting that defendant may not obstruct attorney’s

efforts, then claim ineffective assistance of counsel); Dowthitt v.

Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (finding that counsel

was not ineffective for failing to call family members during

punishment phase where defendant stated that he did not want family

members to testify).

10

The record in this case reflects that Wood clearly and

repeatedly instructed his trial counsel to sit idly throughout the

sentencing phase of his trial. On these facts, the state court’s

decision holding that Wood could not show that counsel performed

deficiently was not an unreasonable application of Strickland.

11

Wood’s remaining ineffective assistance of counsel claim is
16

that counsel should have sought a mid-trial competency evaluation

to determine whether Wood was competent to instruct his attorneys

to not present mitigating evidence. The district court dismissed

this claim as unexhausted. Even assuming that the claim was

properly exhausted, however, Wood is not entitled to relief, as

counsel did not perform deficiently by failing to request a

competency evaluation.

The Supreme Court has held that a defendant who is competent

to stand trial is also competent to waive the right to have the

assistance of counsel. See Godinez, 509 U.S. at 399-402. It

follows logically that this court cannot impose any higher, or more

stringent, standard of competency where a defendant who is

represented by counsel wishes to override counsel’s advice. See

Arnold, 273 F.3d 1094, at *1 (unpublished) (“Because Arnold was

competent to stand trial and therefore to waive his right to

counsel, he was, a fortiori, competent to override the advice of

counsel.”) (citing Coleman v. Mitchell, 244 F.3d 533, 545 (6th Cir.

2001)). 

In this case, the trial court expressly determined that Wood

was competent to stand trial at a competency hearing held shortly

before trial. The only evidence that Wood offers as support for

his claim that he was not competent is an affidavit from one of his

trial counsel that states, in pertinent part:

I felt Mr. Wood’s request to [present no

defense at the penalty phase] was an
17

irrational request. Indeed, it was my

personal belief that Mr. Wood was incompetent

to make a rational, well thought out choice on

how to best conduct the sentencing phase of

his trial.

Wood’s allegations do not make out a claim for relief. In

Autry, this court held that a competency hearing is not

automatically required before counsel can accept a client’s

decision to not present evidence during the sentencing phase of a

capital trial. Autry, 727 F.2d at 362 (“It does not follow for us

that refusing to plead for mercy after being convicted of two

execution-style slayings will alone so implicate a defendant’s

competency as to render his counsel constitutionally ineffective

for not seeking an inquiry into competency before abiding the

client’s decision.”); see also Moran, 509 U.S. at 401 n.13 (stating

that a court is not “required to make a competency determination in

every case in which a defendant seeks to plead guilty or to waive

his right to counsel. As in any criminal case, a competency

determination is necessary only when a court has reason to doubt

the defendant’s competence.”). In addition, counsel’s belief that

the defendant’s decision is ill-advised is not sufficient to

trigger a duty to inquire into the defendant’s competence. Autry,

727 F.2d at 363 (“Carver was not ineffective in not seeking a

competency hearing before abiding Autry’s decision, absent a more

substantial reason to suspect incompetence than the lawyer’s view

that Autry’s decision was injurious to the case.”). The affidavit
18

from Wood’s counsel in this case simply does not speak to the

relevant competency standard of whether Wood was competent to stand

trial. Rather, it says only that counsel thought that Wood was not

competent to decide how to best present a penalty-phase defense.

Moreover, Wood has not pointed to any other facts that would

suggest that he was not competent to stand trial. Accordingly,

Wood has not presented any evidence that would call his competence

into question or show that counsel performed deficiently by failing

to ask for an additional competency evaluation, and he is therefore

not entitled to relief.

V. Conclusion

For the reasons stated above, we AFFIRM the judgment of the

district court dismissing Wood’s 28 U.S.C. § 2254 petition.