### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

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 Judg e , and ENGELHARDT, District Judge. * PER CURIAM: ** Kelvin Landry, c o nvicted 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 U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D Octob er 21 , 20 11 Lyle W . Cayce Clerk

D ist ric t Judge of the East ern Di st ric t of Louis iana, s itt ing by des ignati on. *
Purs uant to 5 T H C IR

. R. 47.5 , the court has det erm ined that this opi nion sho uld not * * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t for th in 5 T H C IR

. R. 47.5 .4. Case: 10-31073 Document: 00511641337 Page: 1 Date Filed: 10/21/2011No. 10-31073

intelligently waive his right t o c o u n s el 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. Prio r t o th e S t ate 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 a d d r e s s ed Landry d i r e c t l y 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 th a t i t was his “sincere advice being a judge and practicin g l a w 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 h i s o w n counsel.” What followed was a disj o i n t e d discourse between the trial judge and Landry in which the judge attemp t e d to obtain confirmation from Landry that his appointed counsel continu e d 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

a g a i n addressed Landry. He reiterated that Landry had the righ t t o representation by an appointed attorney, and he stated that the “three just and qualified attorneys” appointed to r e p r e s e n t 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 righ t t o r e present 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 th a t Landry intended to represent himself. The judge explained that courtroom procedures were subject to h i s discretion and that L andry would not be permitted to “badger witnesses,” “badger [the] jur y , ” “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 lo o k a t any evidence, he would not be per m i t t e d t o 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 pro b ab l y against [Landry’s] previous attorney’s advice.” Furthermore, the judge s a i d h e 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 th e m a t t e r 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 L a n d ry w o u ld 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 i t s 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 obvio u s . Following the explanation, Landry indicated his understanding of the assis t a n ce he would receive. Before bringing the jury back for a secon d t ime, 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 a s s i s t a n c e of his previously appointed counsel. Again, the judge sought clarification. This time he asked whether Landry w a n t e d 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 h e 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 y o u w a n t t o represent yourself and you want to question the witnesses.” He then proceeded as follows: Now, I can t e l l y o u , you got a lot of years of service there between thes e t h r e e g e ntlemen. A lot of legal experience. I advise you not to do this; I advise you to let them represent you. If you represent y o u r self 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 a g a i n a f f i rmed 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 fo u n d gu i l t y 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 Cons t i t ution was violated by allowing him to represent himself without determining his background, education, experience, literacy, competency, understanding, and volit i o n . 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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r e l i ef on all grounds except for his claim that his waiver of counsel was n o t knowing and intelligent. The magistrate j u dge determined that Landry had “unequivocally asserted his right to self-re p resentation” 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 b e havior and procedures,” the inquiry was deemed inadequate because Landry’s request was granted “without f ir s t de t e r m inin g, on the record, [Landry’s] age, education and other b ack gro u n d , experi e n c e 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

ma gi s trate 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 , a s its opinion, finding no merit in the State’s objection that no sp e cific criteria existed to guide a determination as to whether Landry’s waiver of c o u n s e l was made knowingly and intelligently. The district court determined that it is “well established that t o d e termine whether a waiver is knowing and intelligent, the ‘court mu s t consider the defendant’s age, education, background, experience and conduct.’” Because the waiver wa s 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, ass e rting 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 co u nsel 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 pro c e dur al d ef ault. 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 th e i s s ue 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 in t e r e s t of defending its criminal judgments, and the federal trial courts, in the intere st 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 h ab e a s 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. This habeas proceeding is governed by the Antiterrorism 4 and Effective Death Penalty Act (AEDPA) because Landry filed his habeas

Cole ma n v . Thom

ps on , 501 U. S. 722 , 729- 30 ( 1991)

. 1
Tre st v

. Cai n , 522 U. S. 87, 89 (199 7). 2
Frattav . Qu ar term an , 536 F.3d485 , 499 (5t h Cir

. 2008)

. 3
Ma nn v . Scott , 41 F. 3d 968, 974 (5th Cir. 199 4) (c itin g Brew er v. W il li am s , 430 U. S. 4 387, 397 n. 4 ( 1977) ; Sel f v. Col li ns , 973 F.2d119 8, 1204 (5t h Cir

. 1992) ).

7 Case: 10-31073 Document: 00511641337 Page: 7 Date Filed: 10/21/2011No. 10-31073

p e tition on April 27, 2009, subsequent to AEDPA’s effective date of April 2 4 , 1996. Under AEDPA, t h e av a i lability of federal habeas relief is limited with respect to claims previously “adjudicated on the merits in State co u rt proceedings.” A federal court may not grant habeas relief to a state prisoner on

5

a claim adju d icated on the merits in a state court proceeding unless the state court decision: (1) “was contrary to, or involved an unreasonable application of,

c l early established Federal law, as determined by the Supreme Court of th e 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 if th e s e s t an dards are applicable, we must first determine the threshold question of whether Landry’s claim was a d j u d i c a ted 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 o f t h e case was substantive as opposed to procedural.” When the 7 disposition was procedural—and th u s the claim was not adjudicated on the

m e r i t s in state court—the standards of AEDPA do not apply. Here, the s t a t e 8 court record is unambiguous—Landry’s cl ai m w a s de ni e d o n p ro c e dur al grounds. The court orally stated that habeas relief was being denied because every ground “either was or could have been” addressed i n Landry’s direct appeal, and the court’s disposition of Landry’s petition involved no disc u s s i o n of the merits of Landry’s ineffective waiver of counsel claim. This unambiguous disposition on

28 U. S. C. § 2 254( d)

. 5
Id. 6
Nea l v. Pucke tt , 286 F.3d 230, 235 (5t h Cir. 2002) (en banc) (c itin g Green v. Johns on , 7 116 F.3d111 5, 1121 (5t h Cir

. 1997) ). Grav es v. D retke , 442 F.3d334 , 339 (5t h Cir

. 2006)

. 8 8 Case: 10-31073 Document: 00511641337 Page: 8 Date Filed: 10/21/2011No. 10-31073

p ro c e dur al gro u n d s re n d e r s th e standards of AEDPA inapplicab l e , an d th e r e f o r e 9

we review de novo the issue of whether Landry effectively waived his right to counsel. 1 0 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 1 1 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 semust be 1 2 made volu n t a rily, knowingly, and intelligently, and it is the trial judge’s 1 3 responsibility to ensure that this is the case. 1 4 When waiving counsel at trial in order to proceed pro se , the criminal defendant “should be made awa r e o f the dangers and disadvantages of selfBut see Ha rri ngton v . R ic hter , 131 S. Ct. 770, 784- 85 (201 1) (“When a fed eral clai m 9 has been pr es ente d to a st ate cour t and the st ate cour t has deni ed reli ef, it may be pr es ume d that the st ate cour t adjudicat ed the clai m on the me rit s in the abs ence of any indi cat ion or st ate- lawp roc edur al pr incip les t o t he cont rary.” ).

See Ha tten v. Qu ar term an , 5 7 0 F

. 3 d 595, 599- 600 (5t h Cir. 2009) (“ In the abs ence 1 0 of a st ate co urt‘adjud icat ion on the m erit s’of a peti tio ner’ s cla im , to which AEDPA requ ires def ere nce unde r 28 U. S. C. § 2254( d) , we revie w the dis tri ct cour t’s find ings of fac t for clea r err or and its legal conc lus ions de nov o .” (f oot note om itt ed) ); Grav es , 442 F.3d at 339 (d ete rm ining that the height ened st an dard of revie w pr ovide d by AEDPA doe s not app ly wh ere the st ate cour t dis mi ss ed clai ms onp roc edur al- def ault ground s) ; He nderson v. Coc kre ll , 333 F.3d 592, 598 (5t h Cir. 2003) (ind icat ing that “ pr e-AED PA st andar ds of revie w” app ly wi th res pec t to clai ms no t adjud icat ed on the me rit s in st ate cour t)

.

Fare tta v

. Cal if

orni a , 422 U. S. 806 , 807 (197 5). 1 1
Id. at 834. 1 2
Id. at835 (cit ing Johns on v. Ze rbs t , 304 U. S. 458 , 464- 65 ( 1938) ). 1 3
Zerb st , 304 U. S. at465

. 1 4 9 Case: 10-31073 Document: 00511641337 Page: 9 Date Filed: 10/21/2011No. 10-31073

representation.” In order to determine if the criminal defendant has effectively 1 5 waived the right to counsel, this court has stated that “a district court must consider the totality-of-circumstances.” This requires consideration of various 1 6 factors including the defendant’s age and educa t i o n, and other background, experience, and conduct. The court must ensure that the waiver is not the result o f c o e r cion or mistreatment of the defendant, and must be satisfie d t hat the accused understands the nature of the c h a rges, the consequences of the proceedings, and the practica l meaning of the right he is waiving. 1 7 The Supreme Court “[has] not

. . . prescribed any formula or script to be read to

a defendant who states that he el e c t s to proceed without counsel,” and this 1 8 court has emphasized that “there is no sacrosanct litany for warning defendants against waiving t h e right to counsel.” “[T]he district court must exercise its 1 9 discretion in determining the precise nature of the warning.” 2 0 The presence of standby counsel does not satisfy the right to counsel, and 2 1 harmless e r r o r r e vi ew is unavailable if a court errs in denying a criminal defendant the right to counsel at trial. When raised in a collateral attack, the 2 2

Iowav . Tov ar , 541 U. S. 77 , 89 (200 4) (quo ting Fare tta , 422 U. S. at836). 1 5
Uni ted States v. Vi rgil , 444 F.3d 447, 453 (5t h Cir. 2006) (c itin g Uni ted States v. 1 6 Da vi s , 269 F.3d514 , 518 (5t h Cir

. 2001) ).

Id. ( quot ing Da vi s , 269 F.3dat518). 1 7
Tov ar , 541 U. S. at88. 1 8
Vi rgil , 444 F.3d at 453 (int erna l quot atio n om itt ed) (quo ting Uni ted States v. Jones , 1 9 421 F.3d359 , 364 (5t h Cir

. 2005) ).

Da vi s , 269 F.3dat519

. 2 0
Vi rgil , 444 F.3dat453

. 2 1
See Uni ted States v. Croni c , 466 U. S. 648, 659 & n.25 (198 4); see also Vi rgil , 444 F.3d 2 2 at 455- 56. 10 Case: 10-31073 Document: 00511641337 Page: 10 Date Filed: 10/21/2011No. 10-31073

burden rests on the criminal defendant to prove that his waiver of counsel was ineffective. 2 3 B The State ar gu e s th at the 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 mus t consider the defendant’s age, education, background, experience and conduct.’ ” Because the waiver was granted 24 without the trial court first determining th is information on the record, or otherwise establishing that Landry knew what he was doing, the district court ruled that the Stat e “ [h ad] failed to establish that [Landry] knowingly and intelligently waived his right to counsel.” 2 5 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 Land ry a rgued 2 6 that his waiver of counsel was ineffective because t h e trial court did not first determine his background, education, experience, literacy, compete n c y , understanding, and volition on the record, we require no such formula or script. The totality-of-circumstances must b e c onsidered. The record indicates that 2 7 the trial judge properly made Landry aware of the dangers and disadvantages

Tov ar , 541 U. S. at92. 2 3
Landr y v. Cai n , No. 09-2 63-BAJ- SCR, 2010 WL 4179828 , at *1 (M .D

. La. Oc t. 20, 2 4 2010) ( quot ing Uni ted Sta tes v. Jo sep h , 333 F.3d587 , 590 (5t h Cir

. 2003) ).

Id. 2 5
See Tov ar , 541 U. S. at92 (“ [I]n a coll ater al att ackonan uncou nse ledc onvict ion, it 2 6 is the def

enda nt’ s burd en to pr ove that he did not com pet entl y and inte lligent ly wa ive his right to the ass ist anceof

c ouns el. ”)

. Uni ted States v. Vi rgil , 444 F.3d 447, 453 (5t h C ir. 2006) (c itin g Uni ted States v. 2 7 Da vi s , 269 F.3d514 , 518 (5t h Cir

. 2001) ). 11 Case: 10-31073 Document: 00511641337 Page: 11 Date Filed: 10/21/2011No. 10-31073

of self-representation, and the c o l l o q u y 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 2 8 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 2 9 replete with evidence that the trial judge made a sufficient effort to ensure that Landry’s waiver of counsel was knowing and inte lli ge nt. The judge—on multiple

o c casions—asked Landry if he wanted to represent himself, and Land ry

—o n

m ultip l e o ccasions—indicated that he did, de s p it e b e in g r e p e at e dly c autio n e d no t to do so. The judge questioned Landry and confirmed that he u nderstood 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 use d a g a inst him, and that he retained the ultimate right to decide whether to testify even if r e p r e s e n ted 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 expecte d t o comply. Emphasizing that courtroom procedures are better dealt with by attorneys, the judge to ld Landry he would “highly suggest” Landry consult his standby counsel. Additiona l l y , the judge heard Landry indicate an understanding of the nature of the charges against him and the consequenc e s o f the proceedings when

See id. at 454- 55 (f

indi ng a violat ion of Fare tta wh ere “[t] he tra nsc rip t [w as] void of 2 8 any indi cat ion that the dis tri ct cour t so u gh t t o app ris e [t he def enda nt] of the ‘pe rils and dis advant ages of sel f- rep res enta tio n,’whic h is the m inim um re quire d by Da vi sand Fare tta , muc h les s engaged in any o f the broa derw arnin gs sugges tedby Da vi s”) ; seea ls o Dav is , 269 F

. 3 d a t 5 2 0 (f

indi ng inad equat e “[t] he cour t’s reli ance on the wa rnings agains t se lfrep res enta tio n givenby [t he def enda nt’ s] c ouns el” ).
Uni ted Sta tes v. Jo nes , 421 F.3d359 , 65 ( 5th Cir. 200 5). 2 9
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Landry stated that he was waiving c o u n s e l and proceeding pro se because his “life is on the line.” As we have stated before, we do not req u i r e the trial court to “follow a script,” and we “[have] ap p r o v e d warnings much less thorough than the guidelines presented in the [Benchbook for U.S. Distri c t C ourt Judges].” In 3 0 United States v . M

a r t i n , “we entertain[ed] no doubt that [the] waiver was knowingly, intelligently, and voluntarily made.” There the trial court 3 1 conducted a hearing in which the def e n d a n t w a s “cautioned

. . . about the complexit y of the trial and the pitfalls of self-representation,” and “[u]pon specific inquiry, [the defendant] advised the cou r t t h a t he wished to represent himself, despite the potential difficulties.” 3 2 In United States v. Joseph , we also determined that the requirements for

a knowing and intelligent waiver were satisfied. The defendant was properly 3 3 in f o r m e d 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, a n d the court specifically recommended that his attorneys be allowed to question witnesses, conduct cross-examination, and put

on evidence. Additional l y , c o m ments made by the defendant concerning his

3 4 indictment and the possible sentence “indicate[d] that [he ] u n d e r stood the nature of the charges against him and the consequences of the proceedings.” 3 5

Id. .3dat363 -64. 3 0
790 F. 2d 1215, 121 8 ( 5th Cir. 198 6). 3 1
Id. 3 2
333 F. 3d 587, 590 ( 5th Cir. 200 3). 3 3
Id. 3 4
Id. 3 5 13 Case: 10-31073 Document: 00511641337 Page: 13 Date Filed: 10/21/2011No. 10-31073

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

. Here, as in Martin , the trial c o u r t c o nducted 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 hi m , a n d h e 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. Als o , j u s t 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 i ndictment and possible sentence, Landry showed a similar understanding by stating that he was proceeding pro se because his life was one t h e l i n e . Accordingly, we are satisfied that Landry’s waiver of counsel w a s 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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