IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-31073

KELVIN LANDRY,

Petitioner–Appellee,

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; JAMES D.

CALDWELL, JR.,

Respondents–Appellants.

Appeal from the United States District Court

for the Middle District of Louisiana

USDC No. 3:09-CV-263 

Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT,

District Judge.*

PER CURIAM:**

Kelvin Landry, convicted of second-degree murder and possession of a

firearm by a convicted felon in Louisiana state court, was granted federal habeas

relief by the district court after having been denied such relief by the Louisiana

state courts. The district court held that Landry did not knowingly and

United States Court of Appeals

Fifth Circuit

F I L E D

October 21, 2011

Lyle W. Cayce

Clerk

 District Judge of the Eastern District of Louisiana, sitting by designation. *

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.

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intelligently waive his right to counsel in the course of exercising his right to

self-representation at trial. The State of Louisiana has appealed. Because we

hold that the trial court’s inquiry was sufficient, we reverse the district court’s

grant of habeas relief.

I

A

Kelvin Landry shot and killed Larry Porch, resulting in his conviction in

Louisiana state court for second-degree murder and possession of a firearm by

a convicted felon. During his trial, Landry was found to have waived his right

to counsel so that he could represent himself. This appeal arises from Landry’s

complaints about the effectiveness of his waiver of counsel.

Prior to the State calling its final witness in its case in chief, Landry’s

appointed counsel notified the court that Landry had indicated a desire to take

over his own defense. Outside the jury’s presence, the trial judge addressed

Landry directly and, at the outset, confirmed that Landry understood that he

had no duty to “say anything or do anything” at trial, that anything he said could

be used against him, and that he had the right to representation by counsel. The

judge conveyed to Landry that it was his “sincere advice being a judge and

practicing law for thirty years to caution [Landry] that the procedures of [the]

courtroom and the law is better dealt with by attorneys than a layperson.”

Initially, Landry gave the impression that he merely sought to testify, but

his counsel clarified that Landry had “insisted that he needed to make some type

of statement to the jury or act as his own counsel.” What followed was a

disjointed discourse between the trial judge and Landry in which the judge

attempted to obtain confirmation from Landry that his appointed counsel

continued to represent him at trial. After several indirect answers, Landry

ultimately replied, “Yes, they’re my attorneys.” During the colloquy, the judge

explained that Landry’s counsel would speak for him at trial, but that it would

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ultimately be up to Landry whether to testify. Also, the judge twice suggested

that it would be in Landry’s best interest to follow his counsel’s advice.

This did not resolve the matter because, when the jury returned, Landry’s

counsel expressed concern that Landry had not been sufficiently apprised of his

right to self-representation. With the jury once again removed, the trial judge

again addressed Landry. He reiterated that Landry had the right to

representation by an appointed attorney, and he stated that the “three just and

qualified attorneys” appointed to represent Landry had done so “in a very

competent and capable manner.” Landry was then advised that he had the right

to represent himself if he so wished, although the judge twice advised him

against doing so. When asked whether he understood his right to represent

himself, Landry replied, “Yeah, I’m going to take that right up today to represent

myself because, you know, my life is on the line here.”

At this point, the trial judge explained the procedures with which Landry

would have to comply while representing himself and, on several occasions, the

judge reconfirmed that Landry intended to represent himself. The judge

explained that courtroom procedures were subject to his discretion and that

Landry would not be permitted to “badger witnesses,” “badger [the] jury,”

“narrate,” or “testify from down there.” While Landry would be permitted to do

what he felt he needed to do “in an orderly fashion,” and he could look at any

evidence, he would not be permitted to touch the gun. Additionally, the judge

informed Landry that he retained the right not to testify and that the jury could

not use his failure to do so against him. Landry indicated an understanding of

these matters. Landry was advised that representing himself was “against [the

judge’s] advice and probably against [Landry’s] previous attorney’s advice.” 

Furthermore, the judge said he would “highly suggest” Landry consult the

assistance of his appointed counsel who would be ordered to assist him if he so

wished.

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Subsequently, when the court had moved on to the matter of the State’s

next witness, Landry’s responses to inquiries from the judge appear to have led

the judge to once again briefly explain the courtroom process. The judge made

clear that Landry would not be permitted to talk continuously in the jury’s

presence—he would have to ask questions and take the witnesses’ answers. It

was explained that the State would call its next witness and, after the State

rested, Landry would be permitted to call witnesses of his own. The judge also

explained the assistance that Landry would receive from his former counsel in

their new role as his standby counsel. They were ordered to assist Landry if he

requested assistance or if they noticed something obvious. Following the

explanation, Landry indicated his understanding of the assistance he would

receive.

Before bringing the jury back for a second time, the judge once again

sought confirmation that Landry intended to represent himself. Landry replied,

“Yeah,” but then indicated he wanted to do so with the assistance of his

previously appointed counsel. Again, the judge sought clarification. This time

he asked whether Landry wanted to do the questioning or whether he wanted

his counsel to do so in accordance with his directions. Landry’s responses led the

judge to again question whether Landry wanted to represent himself or merely

testify on his own behalf. When asked, Landry replied that he wanted to have

his say in the courtroom and that he wanted “to have the opportunity to express

[his] side of the events.” This prompted a follow up question, and when Landry

explained that he wanted to call the witnesses but have his counsel question

them, the judge told him that only one person could question witnesses. Landry

then indicated he wanted to be the one call his mother to the stand and question

her. 

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The judge gave one final warning. He first stated that “as best the Court

can understand and does feel that you have stated that you want to represent

yourself and you want to question the witnesses.” He then proceeded as follows:

Now, I can tell you, you got a lot of years of service there between

these three gentlemen. A lot of legal experience. I advise you not

to do this; I advise you to let them represent you. If you represent

yourself and what you are saying that then that’s your choice, but

don’t come back later on and try to say that you didn’t have effective

counsel because you are your counsel. You are your own attorney;

do you understand that?

Landry indicated that he understood, and once again affirmed his wish to

represent himself. The jury returned, and Landry proceeded to act as his own

counsel for a portion of the trial. Landry was found guilty of both charged

offenses. He was sentenced to life imprisonment on the second-degree murder

charge and a consecutive fifteen-year sentence for possession of a firearm by a

convicted felon.

B

Landry completed his direct appeal and then filed an application for postconviction relief in state district court in which he argued, for the first time, that

his right to due process under the United States Constitution was violated by

allowing him to represent himself without determining his background,

education, experience, literacy, competency, understanding, and volition. The

court denied the application, determining that every ground was, or could have

been, raised on direct appeal. The Louisiana Court of Appeals, First Circuit and

the Louisiana Supreme Court denied Landry’s requests for supervisory writs

regarding his application for post-conviction relief.

C

Landry later sought federal habeas relief in a 28 U.S.C. § 2254 petition,

which included a claim identical to that raised in his state application for postconviction relief. The magistrate judge recommended that Landry be denied

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relief on all grounds except for his claim that his waiver of counsel was not

knowing and intelligent. The magistrate judge determined that Landry had

“unequivocally asserted his right to self-representation” after having been

informed that he had such a right and after being advised against exercising it. 

However, even though the magistrate judge determined that the trial court had

“advised [Landry] about expected courtroom behavior and procedures,” the

inquiry was deemed inadequate because Landry’s request was granted “without

first determining, on the record, [Landry’s] age, education and other background,

experience and conduct, or otherwise establishing on the record that [Landry]

knew what he was doing and that his choice was made with his eyes open.” The

magistrate judge determined that this was an unreasonable application of

federal law requiring a new trial.

The district court adopted the magistrate judge’s report and

recommendation, along with the discussion therein, as its opinion, finding no

merit in the State’s objection that no specific criteria existed to guide a

determination as to whether Landry’s waiver of counsel was made knowingly

and intelligently. The district court determined that it is “well established that

to determine whether a waiver is knowing and intelligent, the ‘court must

consider the defendant’s age, education, background, experience and conduct.’”

Because the waiver was granted without making such a determination on the

record, and because nothing in the trial transcript indicated that the trial judge

knew and considered the relevant facts, the court held that the State had failed

to establish that Landry knowingly and intelligently waived his right to counsel. 

Accordingly, Landry’s petition for habeas relief was granted, and the State was

ordered to give him a new trial or release him from custody.

The State now appeals, asserting that Landry’s waiver of counsel was

valid. The State argues that the inquiry conducted by the state trial court was

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sufficient to ensure that Landry’s waiver of counsel was knowingly and

intelligently made. 

II

A

At the outset, we note that the State failed to raise the fact that the state

district court denied Landry’s claim of ineffective waiver of counsel in his

application for post-conviction relief because of Landry’s procedural default. The

Supreme Court has held that procedural default bars federal habeas relief, but 1

the Supreme Court has also held that a federal court of appeals is not required

to raise the issue sua sponte. We decline to invoke the procedural bar in this 2

case because there is no compelling reason for us to do so when the State did not

raise the issue in the district court or on appeal and neither the magistrate judge

nor the district judge noted the possibility of procedural default. Nevertheless,

it behooves the State, in the interest of defending its criminal judgments, and

the federal trial courts, in the interest of federalism, to carefully consider

whether to invoke and apply the procedural-bar doctrine whenever it applies.

B

When reviewing a district court’s grant of habeas relief, we review findings

of fact for clear error, and we review issues of law and mixed issues of law and

fact de novo. Whether a defendant has effectively waived his right to counsel 3

is a question of law.4 This habeas proceeding is governed by the Antiterrorism

and Effective Death Penalty Act (AEDPA) because Landry filed his habeas

Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).

1

Trest v. Cain, 522 U.S. 87, 89 (1997). 2

Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008).

3

Mann v. Scott, 41 F.3d 968, 974 (5th Cir. 1994) (citing Brewer v. Williams, 430 U.S. 4

387, 397 n.4 (1977); Self v. Collins, 973 F.2d 1198, 1204 (5th Cir. 1992)).

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petition on April 27, 2009, subsequent to AEDPA’s effective date of April 24,

1996. 

Under AEDPA, the availability of federal habeas relief is limited with

respect to claims previously “adjudicated on the merits in State court

proceedings.” A federal court may not grant habeas relief to a state prisoner on 5

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

court decision: (1) “was contrary to, or involved an unreasonable application of,

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

United States;” or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” To determine 6

ifthese standards are applicable, we must first determine the threshold question

of whether Landry’s claim was adjudicated on the merits in the state court

proceeding.

Adjudication on the merits is a “term of art that refers to whether a court’s

disposition of the case was substantive as opposed to procedural.” When the 7

disposition was procedural—and thus the claim was not adjudicated on the

merits in state court—the standards of AEDPA do not apply. Here, the state

8

court record is unambiguous—Landry’s claim was denied on procedural grounds. 

The court orally stated that habeas relief was being denied because every ground

“either was or could have been” addressed in Landry’s direct appeal, and the

court’s disposition of Landry’s petition involved no discussion of the merits of

Landry’s ineffective waiver of counsel claim. This unambiguous disposition on

 28 U.S.C. § 2254(d).

5

Id. 6

Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (en banc) (citing Green v. Johnson,

7

116 F.3d 1115, 1121 (5th Cir. 1997)).

Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006).

8

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procedural grounds renders the standards of AEDPA inapplicable, and therefore

9

we review de novo the issue of whether Landry effectively waived his right to

counsel.10

III

A

The Sixth and Fourteenth Amendments to the United States Constitution

guarantee a criminal defendant the assistance of counsel before he can be validly

convicted and punished by imprisonment. However, a criminal defendant that 11

is unwilling to be represented by counsel has the right to forgo the assistance of

counsel and conduct his own defense. The decision to proceed pro se must be 12

made voluntarily, knowingly, and intelligently, and it is the trial judge’s 13

responsibility to ensure that this is the case.14

When waiving counsel at trial in order to proceed pro se, the criminal

defendant “should be made aware of the dangers and disadvantages of self9 But see Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011) (“When a federal claim

has been presented to a state court and the state court has denied relief, it may be presumed

that the state court adjudicated the claim on the merits in the absence of any indication or

state-law procedural principles to the contrary.”).

See Hatten v. Quarterman, 570 F.3d 595, 599-600 (5th Cir. 2009) (“In the absence 10

of a state court ‘adjudication on the merits’ of a petitioner’s claim, to which AEDPA requires

deference under 28 U.S.C. § 2254(d), we review the district court’s findings of fact for clear

error and its legal conclusions de novo.” (footnote omitted)); Graves, 442 F.3d at 339 

(determining thatthe heightened standard of review provided by AEDPA does not apply where

the state court dismissed claims on procedural-default grounds); Henderson v. Cockrell, 333

F.3d 592, 598 (5th Cir. 2003) (indicating that “pre-AEDPA standards of review” apply with

respect to claims not adjudicated on the merits in state court).

Faretta v. California, 422 U.S. 806, 807 (1975). 11

Id. at 834. 12

Id. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)). 13

Zerbst, 304 U.S. at 465.

14

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representation.” In order to determine if the criminal defendant has effectively 15

waived the right to counsel, this court has stated that “a district court must

consider the totality-of-circumstances.” This requires consideration of various 16

factors including

the defendant’s age and education, and other background,

experience, and conduct. The court must ensure that the waiver is

not the result of coercion or mistreatment of the defendant, and

must be satisfied that the accused understands the nature of the

charges, the consequences of the proceedings, and the practical

meaning of the right he is waiving. 

17

The Supreme Court “[has] not . . . prescribed any formula or script to be read to

a defendant who states that he elects to proceed without counsel,” and this 18

court has emphasized that “there is no sacrosanct litany for warning defendants

against waiving the right to counsel.” “[T]he district court must exercise its 19

discretion in determining the precise nature of the warning.”20

The presence of standby counsel does not satisfy the right to counsel, and 21

harmless error review is unavailable if a court errs in denying a criminal

defendant the right to counsel at trial. When raised in a collateral attack, the 22

Iowa v. Tovar, 541 U.S. 77, 89 (2004) (quoting Faretta, 422 U.S. at 836). 15

United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citing United States v. 16

Davis, 269 F.3d 514, 518 (5th Cir. 2001)).

Id. (quoting Davis, 269 F.3d at 518). 17

Tovar, 541 U.S. at 88. 18

Virgil, 444 F.3d at 453 (internal quotation omitted) (quoting United States v. Jones,

19

421 F.3d 359, 364 (5th Cir. 2005)).

Davis, 269 F.3d at 519.

20

Virgil, 444 F.3d at 453.

21

See United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984); see also Virgil, 444 F.3d 22

at 455-56.

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burden rests on the criminal defendant to prove that his waiver of counsel was

ineffective.23

B

The State argues thatthe district court erred in determining that Landry’s

waiver of counsel was not made knowingly and intelligently. The district court

determined that “it is well established that to determine whether a waiver is

knowing and intelligent, ‘the court must consider the defendant’s age, education,

background, experience and conduct.’” Because the waiver was granted 24

without the trial court first determining this information on the record, or

otherwise establishing that Landry knew what he was doing, the district court

ruled that the State “[had] failed to establish that [Landry] knowingly and

intelligently waived his right to counsel.”25

In reviewing Landry’s waiver of counsel de novo, we reiterate that

Landry—not the State—bears the burden of proving that his waiver of counsel

was ineffective. Landry cannot carry this burden. Although Landry argued 26

that his waiver of counsel was ineffective because the trial court did not first

determine his background, education, experience, literacy, competency,

understanding, and volition on the record, we require no such formula or script. 

The totality-of-circumstances must be considered. The record indicates that 27

the trial judge properly made Landry aware of the dangers and disadvantages

Tovar, 541 U.S. at 92. 

23

Landry v. Cain, No. 09-263-BAJ-SCR, 2010 WL 4179828, at *1 (M.D. La. Oct. 20, 24

2010) (quoting United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003)).

Id. 25

See Tovar, 541 U.S. at 92 (“[I]n a collateral attack on an uncounseled conviction, it 26

is the defendant’s burden to prove that he did not competently and intelligently waive his right

to the assistance of counsel.”).

United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citing United States v. 27

Davis, 269 F.3d 514, 518 (5th Cir. 2001)).

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of self-representation, and the colloquy between the trial judge and Landry

sufficiently indicated that Landry’s waiver was knowing and intelligent in light

of the factors this court has indicated a trial court must consider.

This is not a case in which the trial court failed to conduct any inquiry into

whether the waiver of counsel was made knowingly and intelligently. This is 28

also not a case in which the court did no more than “repeat its recommendation

that a defendant proceed with his available qualified counsel.” The record is 29

replete with evidence that the trial judge made a sufficient effort to ensure that

Landry’s waiver of counsel was knowing and intelligent. The judge—on multiple

occasions—asked Landry if he wanted to represent himself, and Landry—on

multiple occasions—indicated that he did, despite being repeatedly cautioned not

to do so. The judge questioned Landry and confirmed that he understood his

right to appointed counsel, that he did not have to “say anything or do anything

at trial,” that anything he did say could be used against him, and that he

retained the ultimate right to decide whether to testify even if represented by

counsel. The judge advised Landry “that the procedures of [the] courtroom and

the law is better dealt with by attorneys than a layperson.” The judge also told

Landry the procedures with which he would be expected to comply. 

Emphasizing that courtroom procedures are better dealt with by attorneys, the

judge told Landry he would “highly suggest” Landry consult his standby counsel. 

Additionally, the judge heard Landry indicate an understanding of the nature

of the charges against him and the consequences of the proceedings when

See id. at 454-55 (finding a violation of Faretta where “[t]he transcript [was] void of 28

any indication that the district court sought to apprise [the defendant] of the ‘perils and

disadvantages of self-representation,’ which is the minimum required by Davis and Faretta,

much less engaged in any of the broader warnings suggested by Davis”); see also Davis, 269

F.3d at 520 (finding inadequate “[t]he court’s reliance on the warnings against selfrepresentation given by [the defendant’s] counsel”).

United States v. Jones, 421 F.3d 359, 65 (5th Cir. 2005). 29

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Landry stated that he was waiving counsel and proceeding pro se because his

“life is on the line.”

As we have stated before, we do not require the trial court to “follow a

script,” and we “[have] approved warnings much less thorough than the

guidelines presented in the [Benchbook for U.S. District Court Judges].” In 30

United States v. Martin, “we entertain[ed] no doubt that [the] waiver was

knowingly, intelligently, and voluntarily made.” There the trial court 31

conducted a hearing in which the defendant was “cautioned . . . about the

complexity of the trial and the pitfalls of self-representation,” and “[u]pon

specific inquiry, [the defendant] advised the court that he wished to represent

himself, despite the potential difficulties.”32

In United States v. Joseph, we also determined that the requirements for

a knowing and intelligent waiver were satisfied. The defendant was properly 33

informed of the dangers and disadvantages of self-representation: the court

recommended he allow his attorneys to represent him, the court told him they

were very good lawyers, and the court specifically recommended that his

attorneys be allowed to question witnesses, conduct cross-examination, and put

on evidence. Additionally, comments made by the defendant concerning his 34

indictment and the possible sentence “indicate[d] that [he] understood the

nature of the charges against him and the consequences of the proceedings.”35

 Id..3d at 363-64. 30

 790 F.2d 1215, 1218 (5th Cir. 1986). 31

Id. 32

 333 F.3d 587, 590 (5th Cir. 2003). 33

Id. 34

Id. 35

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The facts here are analogous to those present in cases such as Martin and

Joseph. Here, as in Martin, the trial court conducted a hearing in which the

defendant was cautioned about the complexities of trial and the pitfalls of selfrepresentation. Landry was warned that anything he might say in representing

himself could be used against him, and he was warned of the difficulties and

limitations imposed by court procedures. Landry, like the defendant in Martin,

expressed his desire to represent himself despite these difficulties. As in Joseph,

Landry was advised by the trial court that he had good lawyers whom the court

recommended he permit to represent him—lawyers the court specifically

recommended he consult if acting pro se in order to be able to comply with court

procedures. Also, just as the defendant in Joseph indicated an understanding

of the nature of the charges against him and the consequences of the proceedings

by referring to his indictment and possible sentence, Landry showed a similar

understanding by stating that he was proceeding pro se because his life was one

the line. Accordingly, we are satisfied that Landry’s waiver of counsel was

effective as having been knowingly and intelligently made. 

* * *

The district court’s judgment is REVERSED, and judgment is

RENDERED DENYING the petition for writ of habeas corpus.

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