IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 94-20513

_____________________

IVEY V. MYERS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director, TDCJ,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________________________________________________

February 22, 1996

Before KING, DEMOSS, and STEWART, Circuit Judges.

PER CURIAM:

In Myers v. Collins, 8 F.3d 249 (5th Cir. 1993), we reversed

the district court's judgment denying Myers's habeas corpus

petition and we remanded to the district court for an evidentiary

hearing on whether Myers had abandoned his right to file a pro se

brief on direct appeal. Upon remand and following an evidentiary

hearing, the district court again denied Myers's petition for

habeas corpus, finding that although Myers had not abandoned his

right to self-representation on direct appeal, the denial of his

right to self-representation was harmless error. Myers appeals

the judgment of the district court.
2

I. BACKGROUND

Ivey V. Myers ("Myers") is currently serving a twenty-fiveyear term of imprisonment in the custody of the Texas Department

of Criminal Justice for an aggravated robbery conviction. 

Following his conviction, Myers asked the state district court to

allow him to represent himself on appeal. The state court

granted his request, but informed Myers that standby counsel

would be appointed to assist Myers. Instead, the state court

appointed Janet Morrow ("Morrow") as appellate counsel for Myers,

without indicating to her that she was appointed as standby

counsel for a pro se appeal. After the record was compiled,

Morrow filed an appellate brief on Myers's behalf, alleging

ineffective assistance of trial counsel and requesting that the

judgment be reformed to reflect that Myers had only one, not two,

previous convictions. Myers asked Morrow for a copy of the

transcript, so that he could file a pro se brief, but she failed

to provide him with the record. The Texas Fourteenth Court of

Appeals affirmed Myers's conviction and reformed the judgment as

requested in Morrow's brief. Morrow then filed a petition for

discretionary review on Myers's behalf which the Texas Court of

Criminal Appeals refused without opinion.

On June 29, 1989, Myers filed a federal habeas corpus

petition in the district court, alleging the following:

(1) his Fourteenth Amendment right to due process was

violated by:

(a) the inclusion of several aliases in the

indictment which prejudiced the jury, 

(b) his in-court identification which was

prompted by the prosecutor, 
3

(c) his identification in an out-of-court

photo spread, 

(d) the victim's conflicting testimony to the

jury and the police, and 

(e) perjury committed by the police

investigator and the reporting officer;

(2) his Sixth and Fourteenth Amendment rights to selfrepresentation at trial and on appeal were violated;

(3) his trial counsel rendered ineffective assistance;

and

(4) the evidence was insufficient to sustain his conviction.

The district court dismissed the petition on December 19, 1989,

holding that Myers had not exhausted his state remedies. On

December 28, 1990, this court vacated the judgment of the

district court and remanded for consideration of the merits of

Myers's petition.

On remand, the state filed a motion to dismiss on grounds

that "sufficient evidence supported Myers's conviction, that

Myers's due process rights were not violated, that Myers's

counsel was not constitutionally ineffective and that there was

no error in any alleged denial of Myers's right to represent

himself." On October 1, 1991, the district court granted the

state's motion, treating it as a motion for summary judgment, and

denied Myers's petition for habeas relief. 

On appeal from the district court's denial of habeas relief,

this court addressed the question whether Myers had been denied

his federal constitutional right to represent himself on direct

appeal of his conviction. The court determined that "a state

criminal defendant has a constitutional right to present pro se

motions and briefs on appeal." Myers v. Collins, 8 F.3d 249, 252
 

1 In Myers, the court recognized that arguably its

holding constituted a "new rule" which federal courts are usually

barred from announcing in a habeas corpus case by Teague v. Lane,

489 U.S. 288 (1989). Myers, 8 F.3d at 252 n.7. However, because

neither party had raised the Teague issue, the court declined to

do so sua sponte. Id.

4

(5th Cir. 1993).1 However, the court concluded that a genuine

issue of material fact existed regarding whether Myers had

abandoned his right of self-representation. Id. Thus, the court

remanded for an evidentiary hearing on the abandonment issue. 

Id. 

Following the evidentiary hearing, the magistrate judge

entered recommended findings of fact and conclusions of law. The

magistrate judge concluded that Myers was denied his right of

self-representation on the first appeal as of right and

recommended that the writ be conditionally granted unless the

Texas Court of Appeals allowed Myers an out-of-time pro se appeal

on the issue of insufficiency of the evidence--the issue not

raised by Morrow, his appellate counsel. In response to the

state's objections, the magistrate judge amended her report. 

Although the magistrate judge still found that Myers had not

waived or abandoned his right of self-representation, the

magistrate judge concluded that Myers had not demonstrated

"substantial and injurious effect from Morrow's appellate brief,"

applying the harmless error standard set out for trial errors in

Brecht v. Abramson, 113 S. Ct. 1710, 1716 (1993). The district

court adopted the magistrate judge's amended report and
5

recommendation on June 14, 1994 and denied Myers's petition for

habeas corpus. Myers filed a notice of appeal on July 12, 1994.

II. STANDARD OF REVIEW

In reviewing requests for federal habeas corpus relief, we

review the district court's findings of fact for clear error, but

review issues of law de novo. Dison v. Whitley, 20 F.3d 185, 186

(5th Cir. 1994). A finding of fact is clearly erroneous when,

although there is enough evidence to support it, the reviewing

court is left with a firm and definite conviction that a mistake

has been committed. United States v. United States Gypsum Co.,

333 U.S. 364, 395 (1948); Henderson v. Belknap (In re Henderson),

18 F.3d 1305, 1307 (5th Cir. 1994), cert. denied, 115 S. Ct. 573. 

If the district court's account of the evidence is plausible in

light of the record viewed in its entirety, the court of appeals

may not reverse it even though convinced that, had it been

sitting as the trier of fact, it would have weighed the evidence

differently. Anderson v. City of Bessemer City, 470 U.S. 564,

573-74 (1985).

III. DISCUSSION

This appeal presents us with three questions. First, we

must determine whether the district court's determination that

Myers did not abandon his right of self-representation on direct

appeal is clearly erroneous. Second, we must decide whether a

state criminal defendant's constitutional right to present pro se
6

briefs on the first appeal as of right is amenable to harmless

error analysis, applying the standards set forth in Arizona v.

Fulminante, 499 U.S. 279 (1991). Third, if we decide that

harmless error analysis applies, we must then determine whether

the denial of the right of self-representation was harmless error

in this case. Before we reach these questions, however, we will

first discuss the existence and scope of the right to selfrepresentation on the first direct appeal. 

A. THE RIGHT TO SELF-REPRESENTATION ON DIRECT APPEAL

1. Existence of the Right

The Sixth Amendment to the United States Constitution

guarantees every criminal defendant the right to the assistance

of counsel at trial. Gideon v. Wainwright, 372 U.S. 335, 345

(1963). Implicit in the Sixth Amendment also is the correlative

right of a criminal defendant to waive the assistance of counsel

and represent himself at trial. Faretta v. California, 422 U.S.

806, 819 (1975). Additionally, a criminal defendant has a

constitutional right, derived from the Fourteenth Amendment

guarantees of due process and equal protection, to the effective

assistance of counsel on the first direct appeal from his

conviction. Evitts v. Lucey, 469 U.S. 387, 396 (1985) ; Douglas

v. California, 372 U.S. 353, 357 (1963). 

In Price v. Johnston, 334 U.S. 266 (1948), the Supreme Court

stated that "a prisoner has no absolute right to argue his own

appeal or even to be present at the proceedings in an appellate
 

2 We note that the state of Texas has recognized the

right of a defendant to self-representation on appeal (although

denying his right to present oral argument). Webb v. State, 533

S.W.2d 780, 784 (Tex. Crim. App. 1976).

7

court." Id. at 285. However, this court, distinguishing between

the right to present oral argument--which Price determined was

not "an essential ingredient of due process," id. at 286--and the

right to present appellate briefs and motions, and following the

Eighth Circuit's decision in Chamberlain v. Ericksen, 744 F.2d

628 (8th Cir. 1984) cert. denied, 470 U.S. 1008 (1985), held that

"a state criminal defendant has a constitutional right to present

pro se briefs and motions on appeal." Myers, 8 F.3d at 252.2

2. Standby Counsel, Abandonment and Waiver

Because we have so recently recognized the right to present

pro se briefs on the first appeal as of right, we have not yet

delineated the manner in which this right must be exercised. 

Thus, we look to the Supreme Court's decisions in Faretta and

McKaskle v. Wiggins, 465 U.S. 168 (1984), addressing the right of

self-representation at trial, for guidance in determining the

scope of the appellate right to self-representation. In

asserting the right of self-representation at trial, first a

criminal defendant must knowingly and intelligently waive the

right to counsel. Faretta, 422 U.S. at 835. Additionally, a

trial court should advise a defendant asserting the right to

self-representation of the dangers and disadvantages of foregoing

the assistance of counsel before the court accepts his waiver. 

Id. "[A] State may--even over objection by the accused--appoint
8

a `standby counsel' to aid the accused if and when the accused

requests help . . . ." Id. at 835 n.6. 

McKaskle v. Wiggins addressed "[the] role standby counsel

who is present at trial over the defendant's objection may play

consistent with the protection of the defendant's Faretta

rights." 465 U.S. at 170. The McKaskle court established the

following limitations on the participation of stand-by counsel at

trial:

First, the pro se defendant is entitled to

preserve actual control over the case he chooses to

present to the jury. This is the core of the Faretta

right. If standby counsel's participation over the

defendant's objection effectively allows counsel to

make or substantially interfere with any significant

tactical decision, or to control the questioning of

witnesses, or to speak instead of the defendant on any

matter of importance, the Faretta right is eroded.

Second, participation by standby counsel without

the defendant's consent should not be allowed to

destroy the jury's perception that the defendant is

representing himself.

Id. at 178. 

Additionally, McKaskle recognized that a criminal defendant

may abandon or waive his right to self-representation during the

criminal trial. Id. at 182. "A defendant's invitation to

counsel to participate in the trial obliterates any claim that

the participation in question deprived the defendant of control

over his own defense." Id. Once a pro se defendant invites or

acquiesces in substantial participation by standby counsel, even

if he insists that he is not waiving his Faretta rights, he

abandons his right to later complain that counsel interfered with

his presentation of his defense. Id.
9

Applying the reasoning of McKaskle to an appellate

situation, we hold that a criminal defendant who clearly and

unequivocally asserts his right to present pro se briefs on the

first direct appeal must be allowed to "preserve actual control

over the case he chooses to present" to the appellate court--

i.e., he must be allowed to determine the content of his

appellate brief. See McKaskle, 465 U.S. at 178. If standby

counsel substantially interferes with a pro se appellant's

presentation of his appeal--for example, by denying him access to

the transcript--the right to present pro se briefs on direct

appeal will be effectively denied. Of course, a criminal

appellant may abandon the right to present pro se briefs on

direct appeal, once asserted, by inviting or agreeing to standby

counsel's substantial participation in preparation of the brief. 

See McKaskle, 465 U.S. at 182-83. Additionally, there is no

constitutional right to hybrid representation. See id. at 168. 

Thus, when a criminal appellant accepts the assistance of

counsel, but later objects to his attorney's appeal strategy or

preparation of the brief, the criminal appellant cannot then

expect to be allowed to file a supplemental pro se brief. By

accepting the assistance of counsel the criminal appellant waives

his right to present pro se briefs on direct appeal.
 

3 The magistrate judge entered an amended report and

recommendation, including proposed findings of fact and

conclusions of law, which the district court adopted. For the

sake of simplicity, we will refer to the district court.

 

4 The district court found that "the official transcript

reflects that Myers requested and received permission to

represent himself on appeal," citing the following colloquy:

MYERS: I would like at this time to file my notice of

appeal.

THE COURT: Certainly, sir.

MYERS: I would like to also advise the Court that I'm

indigent and cannot afford an attorney nor could I

afford a transcript and would the Court provide me

these.

THE COURT: Certainly.

MYERS: As well as the right to be my own lawyer.

THE COURT: You want to be your own lawyer with no

assistance from a lawyer?

MYERS: This is what I asked the first time and also

asked the second time.

THE COURT: You may be your own lawyer, sir, but I think

I'll appoint someone to stand by in case you need some

assistance. 

10

In the present case, the district court3 found that Myers

clearly and unequivocally asserted his right to selfrepresentation on his first appeal as of right.4 The state trial

court, although it had orally assented to Myers's assertion of

his right, effectively denied that right by appointing Morrow as

appellate counsel for Myers. Additionally, the district court

found that Myers did not subsequently abandon his right to selfrepresentation on direct appeal. The state argues that the

district court's finding that Myers did not abandon his right to

self-representation is clearly erroneous because Myers did not

advise the state court of his dissatisfaction with Morrow's
11

representation. The next section will address the district

court's findings and conclusions.

 3. The District Court's Findings

The district court found the following facts:

Myers requested and received permission to represent himself

on appeal. Nevertheless, on December 18, 1986, Morrow was

appointed as Myers's counsel on appeal. The appointment form and

the official court docket reflected that Morrow's appointment was

standard; no mention was made that Myers had been granted the

right to represent himself or that Morrow's appointment was on a

standby basis. Myers testified at the evidentiary hearing that

the trial judge denied his request to represent himself. Morrow

testified that the state court did not inform her that her

appointment was as standby counsel, and that she would not have

accepted a standby appointment. She testified that, in March

1987, Myers wrote to her requesting a copy of the transcript and

advising her that she was representing him against his will. She

stated that he never told her that she was standby counsel, only

that he wished to file a pro se brief. Morrow did not take

requests from criminal defendants for copies of the transcript

seriously. On March 19, 1987, Morrow responded to Myers's

letter, informing him that she was representing him on the direct

appeal and that she would begin working on the brief as soon as

the record was complete. Morrow believed that she had been

appointed as appellate counsel. Myers testified that after

Morrow refused to send him the transcript, he felt it was useless
12

to object to the brief she had filed. In December 1987, Myers

filed a pro se petition for writ of mandamus before the Texas

Court of Criminal Appeals, complaining that the trial judge had

improperly denied his request to represent himself on appeal.

Based on these factual findings, the district court

concluded that Myers did not expressly, knowingly, and

intelligently waive his right to represent himself on direct

appeal. The district court determined that Myers had requested

and received permission to represent himself in the direct appeal

of his conviction, but that he believed that his request to

represent himself had been denied. This erroneous belief,

induced by the court's written order unconditionally appointing

Morrow on appeal, resulted in the denial of Myers's

constitutional right to represent himself. In answer to the

state's argument that Myers abandoned his right of selfrepresentation by failing to contact the state appellate court

and advise it that Morrow had taken over his appeal, the district

court stated:

The court agrees that Petitioner could have done more

to preserve his right to represent himself but cannot

agree that Myers abandoned his right to selfrepresentation under the particular facts of this case. 

It is significant that it was the court's order which

undermined Petitioner's ability to represent himself,

not any action of Petitioner. Once counsel was

appointed, the court only communicated with counsel. 

Because appellate counsel had been appointed,

Petitioner could not have obtained a copy of the

transcript which he had ordered or been allowed to file

his own brief. Based on the facts presented in this

case, the State has not shown by a preponderance of the

evidence that the Petitioner abandoned his right to

represent himself on appeal.
13

We agree with the district court's conclusion that Myers did

not abandon his right of self-representation on direct appeal. 

Although it may be true that to best preserve his rights Myers

should have notified the state court that Morrow had taken over

his appeal, the district court's factual finding that Myers

believed that his request to be his own attorney had been denied

is not clearly erroneous. Myers's belief that the state court

had denied his request to represent himself is reasonable in

light of the state district court's actions in appointing Morrow

and Morrow's statement that she was representing him on appeal,

as well as her refusal to deliver a copy of the transcript to

Myers. This belief also explains why Myers failed to contact the

state court to protest Morrow's actions. 

Furthermore, at no point did Myers's invite or agree to

Morrow's substantial participation in the prosecution of his

appeal. See McKaskle, 465 U.S. at 182. Rather, he informed

Morrow by letter that she was representing him against his will,

and he asked her for the transcript so that he could prepare a

pro se brief. Because Morrow was Myers's counsel of record,

Myers could not have obtained a copy of the transcript or filed a

brief with the appellate court directly; once counsel was

appointed, the court communicated only with counsel. Although

Myers did not object to the state trial or appellate courts, in

December 1987, Myers filed a petition for writ of mandamus before

the Texas Court of Criminal Appeals complaining that the trial
 

5 The state argues that because the source of the right

to present a pro se brief on direct appeal flows from Texas's

statutory grant of a right to an appeal as of right, the

statutory basis of the right compels a harmless error analysis. 

Because this court held in Myers that the right to present pro se

briefs on direct appeal is a constitutional right, 8 F.3d at 252,

the state's argument is meritless.

14

judge improperly denied his request to represent himself on

appeal. 

 Myers clearly and unequivocally asserted his right to

represent himself on his first direct appeal. The state district

court, after orally agreeing to this request, denied Myers's

right by appointing counsel to represent him. The record

supports the finding that Myers did not at any time invite or

agree to Morrow's participation in the appeal. Therefore, we

affirm the district court's finding that Myers did not abandon

his right to present pro se briefs and motions on his first

appeal as of right. 

B. DOES HARMLESS ERROR ANALYSIS APPLY?

Having determined that the state court denied Myers's

constitutional right to represent himself on direct appeal, and

that Myers did not abandon or waive this right, we must now

address the question whether violation of a state criminal

defendant's constitutional right to present pro se briefs on the

first appeal as of right is amenable to harmless error analysis.5

The United States Supreme Court has determined that harmless

error analysis is appropriate for many types of constitutional
 

6 In Brecht v. Abramson, 113 S. Ct. 1710 (1993), the Supreme

Court announced that the "harmless beyond a reasonable doubt"

standard would no longer apply to analysis of the effect of trial

error in a habeas corpus context. Id. at 1722. Rather, the new

standard for determining whether habeas relief must be granted

for trial error is whether the error "had substantial and

injurious effect or influence in determining the jury's verdict." 

Id.

15

violations. Chapman v. California, 386 U.S. 18, 22 (1967). 

While application of the harmless error doctrine is the rule and

not the exception, see Rose v. Clark, 478 U.S. 570, 578 (1986),

some constitutional violations require automatic reversal

regardless of harm. Chapman, 386 U.S. at 23. 

In Arizona v. Fulminante, the Supreme Court distinguished

the types of constitutional errors amenable to harmless error

analysis from those requiring automatic reversal by denominating

the former, "trial errors," and the latter, "structural defects." 

499 U.S. 279, 307, 309 (1991). "Trial errors" are errors "which

occur[] during the presentation of the case to the jury." Id. at

307-08. Trial errors are subject to harmless error analysis

because they may be "quantitatively assessed in the context of

other evidence presented in order to determine whether [the

error] was harmless beyond a reasonable doubt."6 Id. 

In contrast, the Court described those constitutional errors

which require automatic reversal as "structural defects in the

constitution of the trial mechanism." Id. at 309. Structural

errors affect "the framework within which the trial proceeds,

rather than simply an error in the trial process itself." Id. at

310. The total deprivation of the right to counsel at trial is a
16

paradigmatic example of a structural constitutional error that

can never be harmless, as is the violation of the right to selfrepresentation at trial. Id. at 309; Chapman, 386 U.S. at 23,

n.8; McKaskle, 465 U.S. at 177 n.8. The denial of the right to

self-representation on direct appeal cannot be considered a

structural defect, because it has no effect on the criminal trial

itself. For similar reasons, the denial of the right to selfrepresentation on direct appeal also does not fit neatly in the

category of trial errors, because it does not occur during the

presentation of the case to the jury. 

In McKaskle v. Wiggins, the Supreme Court determined that

the Faretta right to self-representation at trial was not

amenable to harmless error analysis, applying a rationale other

than the trial error/structural defect dichotomy:

Since the right of self-representation is a right that

when exercised usually increases the likelihood of a

trial outcome unfavorable to the defendant, its denial

is not amenable to "harmless error" analysis. The

right is either respected or denied; its deprivation

cannot be harmless.

McKaskle, 465 U.S. at 177 n.8. 

Prior to the Supreme Court's decision in McKaskle, this

court had also recognized that "the nature of the right to defend

pro se renders the traditional harmless error doctrine peculiarly

inapposite." Chapman v. United States, 553 F.2d 886, 891 (5th

Cir. 1977). In Chapman, we recognized that the defendant's right

to represent himself is protected not "out of the belief that he

thereby stands a better chance of winning his case, but rather

out of deference to the axiomatic notion that each person is
 

7 We recognize that the constitutional right to present

pro se briefs on direct appeal stands on different constitutional

footing than the right to self-representation at trial. See

Myers, 8 F.3d at 252 n.4. The Supreme Court determined that the

right to self-representation at trial is implicit in the

17

ultimately responsible for choosing his own fate, including his

position before the law. A defendant has the moral right to

stand alone in his hour of trial and to embrace the consequences

of that course of action." Id.

The Second Circuit expanded on the Supreme Court's McKaskle

rationale and our reasoning in Chapman in reaching the conclusion

that denial of the right of self-representation cannot be

harmless:

The right to self-representation derives

principally from interests beyond ensuring that trial

outcomes are fair. The Sixth Amendment's right to

self-representation reflects values of individual

integrity, autonomy, and self-expression. Violation of

the right to self-representation sacrifices these

values even in the absence of effect on the outcome of

the trial.

Application of harmless error analysis is

particularly inappropriate to denial of the right to

self-representation because a harmless error standard

would, in practical effect, preclude vindication of the

right. Since seasoned appointed counsel can almost

invariably provide better legal representation that a

pro se defendant, denial of a request to proceed pro se

could rarely, if ever, be shown to have been

prejudicial.

Johnstone v. Kelly, 808 F.2d 214, 218 (2d Cir. 1986), cert.

denied, 482 U.S. 928 (1987). 

We find that the reasons that harmless error analysis is

inappropriate for denial of the right to self-representation at

trial apply equally to the denial of the constitutional right to

present pro se briefs on the first appeal as of right.7 The
structure of the Sixth Amendment. Faretta, 422 U.S. at 821. The

right to self-representation at trial is thus the complement to

the Sixth Amendment right to the assistance of counsel at trial.

However, the Sixth Amendment does not protect the right to

counsel on appeal. Rather, if a right to appeal is granted by a

state, the Fourteenth Amendment Due Process and Equal Protection

Clauses demand that the effective assistance of retained or

appointed counsel on appeal also be provided. See Evitts v.

Lucey, 469 U.S. at 396. We may assume then that the

constitutional right to self-representation on direct appeal, as

the complement to the constitutional right to counsel on direct

appeal, is derived from the Fourteenth Amendment Due Process

guarantee. Therefore, while the right to self-representation at

trial is a Sixth Amendment right; the right to present pro se

briefs on direct appeal is a Due Process right.

Although determining the constitutional source of the right

to present pro se briefs on the first appeal as of right is an

important step in recognizing the right, whether the right is a

Sixth Amendment or a Due Process right does not affect the

determination of whether the right is amenable to harmless error

analysis. There are Sixth Amendment and Due Process rights the

violation of which constitute trial errors subject to harmless

error analysis. See Fulminante, 499 U.S. at 307 (citing, inter

alia, Delaware v. Van Arsdall, 475 U.S. 673 (1986) (restriction

on a defendant's right to cross-examine a witness for bias in

violation of the Sixth Amendment Confrontation Clause); Hopper v.

Evans, 456 U.S. 605 (1982) (statute improperly forbidding trial

court's giving a jury instruction on a lesser included offense in

a capital case in violation of the Due Process Clause); and

Coleman v. Alabama, 399 U.S. 1, 10-11 (1970) (denial of counsel

at a preliminary hearing in violation of the Sixth Amendment

Counsel Clause)). Similarly, there are Sixth Amendment and

Fourteenth Amendment rights the violations of which have been

held to be structural defects requiring automatic reversal. See

Fulminante, 499 U.S. at 309-10 (citing, inter alia, Vasquez v.

Hillery, 474 U.S. 254 (1986)(unlawful exclusion of members of the

defendant's race from a grand jury in violation of the Equal

Protection Clause); McKaskle v. Wiggins, 465 U.S. 168 (1984)

(denial of the Sixth Amendment right to self-representation at

trial); Gideon v. Wainwright, 372 U.S. 335 (1963) (total

deprivation of the Sixth Amendment right to counsel at trial);

and Tumey v. Ohio, 273 U.S. 510 (1927) (trial before a judge with

a financial interest in conviction in violation of the Due

Process Clause)). Therefore, the fact that the right to present

pro se briefs on the first appeal as of right is a Due Process

right does not affect our determination whether violation of the

right is amenable to harmless error analysis. 

18

right to present pro se briefs on direct appeal, as the right to

self-representation at trial, arises from the fundamental belief
 

8 Because we determine that the constitutional right to

present pro se briefs on appeal is not amenable to harmless error

analysis, we do not reach our third question--whether the denial

of Myers's right to self-representation on appeal was harmless

error.

19

that a criminal defendant should not have counsel forced upon

him. See Myers, 8 F.3d at 252. Constitutional protection of the

right to represent oneself on direct appeal preserves the values

of individual autonomy and freedom of choice. See Faretta, 422

U.S. at 833-34 ("And whatever else may be said of those who wrote

the Bill of Rights, surely there can be no doubt that they

understood the inestimable worth of free choice."); Chapman, 553

F.2d at 891 ("[E]ach person is ultimately responsible for

choosing his own fate, including his position before the law."). 

Violation of the right to present pro se briefs sacrifices these

values regardless of the effect of the violation on the outcome

of the appeal. See Johnstone, 808 F.2d at 218. The violation of

the constitutional right to self-representation on direct appeal,

limited to the right to present pro se briefs and motions, is not

amenable to harmless error analysis.8 

Therefore, we cannot affirm the district court's judgment

denying Myers's petition for writ of habeas corpus because he

failed to show injurious effect from Morrow's brief or that his

pro se brief would have resulted in reversal of his conviction. 

The denial of Myers's right to represent himself on direct appeal

is reversible error. However, the appropriate remedy is an

opportunity to present an out-of-time pro se appellate brief to

the state court of appeals. See Lombard v. Lynaugh, 868 F.2d
20

1475, 1484 (5th Cir. 1989) (determining that the appropriate

remedy for ineffective assistance of counsel on direct appeal was

a conditional grant of a writ of habeas corpus unless the state

court would grant the petitioner an out-of-time appeal); see also

Stubbs v. Leonardo, 973 F.2d 167, 169 (2d Cir. 1992) (granting

writ unless the state appellate court allows the filing of a pro

se brief). Thus, we order the district court to conditionally

grant Myers's petition for writ of habeas corpus unless the Texas

Fourteenth Court of Appeals allows Myers an opportunity to

present an out-of-time pro se appellate brief.

IV. CONCLUSION

Accordingly, we REVERSE the judgment of the district court,

and we REMAND to the district court with instructions to enter

judgment granting the writ of habeas corpus unless the state

affords Myers an opportunity to present an out-of-time pro se

appellate brief within such reasonable time as the district court

may fix.

REVERSED AND REMANDED.