* 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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-40578

SCOTT LESLIE CARMELL

Petitioner - Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent - Appellee

Appeal from the United States District Court

for the Eastern District of Texas, Sherman

USDC No. 4:02-CV-421

Before KING, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

Petitioner-appellant Scott Leslie Carmell, proceeding pro se, appeals the

district court’s denial of his petition for writ of habeas corpus. Carmell argues

that his constitutional rights were violated when the Texas Court of Appeals

reaffirmed his convictions on remand from the United States Supreme Court,

and that he was denied effective assistance of appellate counsel during those

remand proceedings. With respect to his first contention, we affirm the district

United States Court of Appeals

Fifth Circuit

F I L E D

September 8, 2008

Charles R. Fulbruge III

Clerk
No. 06-40578

1 Carmell was sentenced to a twenty-year term of imprisonment on each of the

indecency and sexual assault convictions, and he was sentenced to two terms of life

imprisonment for the aggravated sexual assault convictions, with all fifteen prison terms to

run concurrently.

2

court’s denial of habeas relief. However, we conclude that Carmell’s claim of

ineffective assistance of appellate counsel on remand warrants relief. Thus, we

reverse and remand solely on that issue.

I.

Scott Leslie Carmell was convicted of fifteen counts of sexual offenses

committed against his step-daughter—eight counts of indecency with a child,

five counts of sexual assault, and two counts of aggravated sexual assault.1

Carmell appealed, arguing, inter alia, that four of his fifteen convictions were

obtained without sufficient evidence. See Carmell v. State (Carmell I), 963

S.W.2d 833, 835–36 (Tex. App.—Fort Worth 1998, pet. ref’d). Carmell’s

argument rested on article 38.07 of the Texas Code of Criminal Procedure,

which, prior to a 1993 amendment, allowed convictions for indecency with a child

and sexual assault to be supported by “the uncorroborated testimony of the

victim of the sexual offense if the victim informed any person, other than the

defendant, of the alleged offense within six months after the date on which the

offense is alleged to have occurred.” TEX. CODE CRIM. PROC. ANN. art. 38.07

(Vernon 1992) (emphasis added). The pre-1993 statute further provided that

“[t]he requirement that the victim inform another person of an alleged offense

does not apply if the victim was younger than 14 years of age at the time of the

alleged offense.” Id.

Carmell argued that under this statute one of his sexual assault

convictions, Count 7, and three of his indecency convictions, Counts 8 through

10, were based on insufficient evidence because they rested only on the

uncorroborated testimony of the victim who had failed to make a timely outcry.

See Carmell I, 963 S.W.2d at 836. At the time that the sexual conduct
No. 06-40578

3

underlying the four convictions occurred, Carmell’s victim was over fourteen

years of age, yet she waited more than a year to reveal to her mother what had

happened. Consequently, her outcry was not timely under the 1992 version of

article 38.07.

The Texas Court of Appeals held that the 1993 version of article 38.07

applied to Carmell’s convictions and rejected Carmell’s insufficiency-of-theevidence claim. Id. The amended version of the statute raised the age of victims

who were not required to make a timely outcry from “younger than 14” to

“younger than 18” years of age. Act of May 10, 1993, 1993 Tex. Sess. Law Serv.

ch. 200, 389 (West) (codified as amended at TEX. CODE CRIM. P. ANN. art. 38.07

(Vernon 1993)). Despite the fact that the amended statute took effect after the

offense conduct occurred, the Texas Court of Appeals found that it applied to

Carmell’s case because it was merely “a rule of procedure.” Carmell I, 963

S.W.2d at 836. As the victim was younger than eighteen years old when the

conduct alleged in Counts 7 through 10 occurred, there was no corroboration-oroutcry requirement under article 38.07, as amended, so the Texas Court of

Appeals affirmed Carmell’s convictions. Id. Carmell’s petition for discretionary

review was refused by the Texas Court of Criminal Appeals (the “TCCA”).

The United States Supreme Court granted certiorari and reversed

Carmell’s convictions on Counts 7 through 10. See Carmell v. Texas (Carmell II),

529 U.S. 513, 552–53 (2000). The Court compared the 1993 amended version of

article 38.07, which was applied by the Texas Court of Appeals in Carmell’s case,

with the earlier version that required, for conviction, corroborating evidence or

outcry within six months ifthe victim was over fourteen years old, and concluded

thatthe amended version changed the quantum of evidence necessary to sustain

a conviction. Id. at 530. Thus, because Carmell committed the offenses charged

in Counts 7 through 10 before the effective date of the 1993 amendment and his

victim was over fourteen years of age at the time of the offenses, the Supreme
No. 06-40578

4

Court held that Carmell’s convictions on those four counts, “insofar as they are

not corroborated by other evidence,” violated the constitutional prohibition on

ex post facto laws and could not stand. Id. at 552. The Court reversed the

judgment of the Texas Court of Appeals and remanded for further proceedings

not inconsistent with the Court’s opinion. Id. at 553.

Three days after the Supreme Court issued its decision, the Texas Court

of Appeals recalled its mandate, and Carmell requested appointment of counsel

on remand. By order issued on June 14, 2000, the Texas Court of Appeals

granted Carmell’s request by abating the appeal and remanding the case to the

trial court for the appointment of counsel by June 27, 2000. The order also

provided for the automatic reinstatement of the appeal upon receipt of the

supplemental record. On June 21, 2000, the trial court appointed Tom Whitlock

to represent Carmell. 

On June 26, 2000, the Texas Court of Appeals received the trial court’s

supplemental record reflecting the appointment of Whitlock. At that point, the

appeal having been automatically reinstated and submitted to a panel,the State

of Texas filed a motion requesting leave to file a supplemental brief. The State

argued that “the opinion on remand raised a new issue that the State did not

have an opportunity to brief,” namely, whether there was sufficient

corroborating evidence adduced at trial to sustain the conviction under the 1992

version of article 38.07. The Texas Court of Appeals granted the motion, and the

State filed its supplemental brief on July 24, 2000.

On July 5, 2000, Carmell drafted a letter to Whitlock which set forth

certain expectations Carmell had of the representation. These expectations

included: maintaining confidentiality and the attorney-client privilege;

communicating with Carmell in a timely and direct manner; being willing to file

a brief in excess of the 50-page limit as well as a reply to the State’s brief;

requesting oral argument; obtaining records still in the custody of trial counsel;
No. 06-40578

5

and obtaining Carmell’s approval before filing any briefs. Carmell concluded his

list of expectations with a conditional request: “If you do not have the time,

interest, or orientation to work with me according to the things contained herein,

then I respectful[ly] ask you [to] file a Motion to Withdraw and a Motion to

Appoint Appellate Counsel.” The letter also contained a post-script reading: “Do

whatever it takes to win. Or, get me another attorney.” Despite the overtone of

an ultimatum, Carmell apparently did not assume that this language would

deter Whitlock from representing him because he concluded the letter by saying:

“I am looking forward to a phone call (or a visit) in the immediate future.” 

After receiving this correspondence from Carmell, Whitlock determined

that he would not be able to provide satisfactory representation to Carmell.

Whitlock filed a motion for leave to withdraw in the trial court on July 24,

2000—the same day that the State filed its supplemental brief. The trial court

granted the motion and substituted Jack McKeathen as Carmell’s counsel on

July 24, 2000. The Texas Court of Appeals received notice of the substitution of

counsel on July 26, 2000, as well as another supplemental record documenting

the substitution of counsel in the trial court shortly thereafter. About three

weeks later, on August 17, 2000, the Texas Court of Appeals issued its opinion

in the case. Carmell v. State (Carmell III), 26 S.W.3d 726 (Tex. App.—Fort

Worth 2000, pet. ref’d). After a de novo review of the trial record, applying the

1992 version of the statute, the Texas Court of Appeals concluded that the

victim’s testimony was sufficiently corroborated at trial and affirmed Carmell’s

convictions. Id. at 727–28. The next day, Carmell’s new attorney, McKeathen,

sought leave to file a supplemental brief and requested that the court delay the

release of its opinion. In his motion, McKeathen explained that he was not

informed of his appointment as Carmell’s attorney until July 28, 2000, and

further certified that the State had no objection to the motion. However, on
No. 06-40578

6

August 21, 2000, the Texas Court of Appeals denied McKeathen’s request as

moot.

On August 22, 2000, Carmell filed a pro se motion in the Texas Court of

Appeals seeking the dismissal of McKeathen and the appointment of new

counsel based on the complete lack of communication from McKeathen regarding

the status of his case on remand. His motion was denied. McKeathen then

moved for rehearing, to have the court’s opinion withdrawn, and for leave to file

a supplemental brief. But, once again, the Texas Court of Appeals denied the

motions. Thus, no brief was ever filed by, or on behalf of, Carmell during the

appellate proceedings on remand. Subsequently, the TCCA refused Carmell’s

petition for discretionary review, and the Supreme Court denied his petition for

writ of certiorari.

Carmell sought state habeas relief in fifteen separate applications (one for

each of his convictions), arguing, in relevant part, that he was denied effective

assistance of counsel during his appellate proceedings on remand from the

Supreme Court, and that his constitutional rights were infringed by the Texas

Court of Appeals’ decision to affirm his convictions again on remand. All fifteen

applications were denied without written order on November 13, 2002.

Having exhausted his state court remedies, Carmell timely filed the

instant 28 U.S.C. § 2254 habeas petition on December 18, 2002. As he had in his

state habeas applications, Carmell argued that he was denied effective

assistance of appellate counsel in the Texas Court of Appeals upon remand from

the United States Supreme Court, and that the Texas Court of Appeals violated

his constitutional rights by refusing to follow the Supreme Court’s mandate. On

January 17, 2006, a magistrate judge (the “MJ”) recommended that all of

Carmell’s claims be denied on the merits. Carmell objected to the MJ’s report

and recommendation, but the district court overruled those objections and

adopted the MJ’s report and recommendation in an order dated March 6, 2006.
No. 06-40578

7

That same day, the district court entered its final judgment denying Carmell’s

petition. Carmell timely filed a notice of appeal and sought a certificate of

appealability (“COA”) and leave to proceed in forma pauperis (“IFP”). The

district court granted Carmell IFP status but denied him a COA. Subsequently,

this court granted Carmell a COA solely on the following two issues: (1) whether

the Texas Court of Appeals’ ruling on remand from the United States Supreme

Court violated Carmell’s constitutional rights by considering whether there was

other evidence of Carmell’s guiltin the trial record that corroborated the victim’s

testimony; and (2) whether Carmell was denied effective assistance of appellate

counsel on remand.

II.

“In an appeal from the denial of habeas relief, we review a district court’s

findings of fact for clear error and its legal determinations de novo.” Bosley v.

Cain, 409 F.3d 657, 662 (5th Cir. 2005). The Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) requires a district court considering a § 2254

habeas petition to defer to the state court’s adjudication on the merits of the

petitioner’s claims unless the state court’s adjudication resulted in a decision

that was: “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court”; or “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” § 2254(d); see also Miniel v. Cockrell, 339 F.3d 331,

336–37 (5th Cir. 2003). “A state court’s decision is deemed contrary to clearly

established federal law if it reaches a legal conclusion in direct conflict with a

prior decision of the Supreme Court or if it reaches a different conclusion than

the Supreme Court based on materially indistinguishable facts.” Miniel, 339

F.3d at 336 (citation omitted). “A state court’s decision constitutes an

unreasonable application of clearly established federal law if it is objectively

unreasonable.” Id. (citation omitted).
No. 06-40578

2 The Supremacy Clause is not a source of federal rights. Instead, it operates to “secure

federal rights by according them priority whenever they come in conflict with state law.”

Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 613 (1979) (internal quotation

omitted).

3 We note that Carmell does not make a direct challenge to the legal sufficiency of the

corroborating evidence adduced at trial under Jackson v. Virginia, 443 U.S. 307 (1979).

Rather, his due process claim apparently stems from a criminal defendant’s guarantee under

the Fourteenth Amendment that on a first appeal, as of right, the state court’s actions will

comport with fair procedure. See Evitts v. Lucey, 469 U.S. 387, 393 (1985) (explaining that

states’ procedures for deciding criminal appeals as of right are subject to the demands of due

process in that they must provide for an adequate, effective, and fair appeal); see also Griffin

8

In this case, Carmell’s post-conviction proceedings in state court resulted

in denials without written order by the TCCA. These denials were nevertheless

“on the merits.” See Bledsue v. Johnson, 188 F.3d 250, 256–57 & n.13 (5th Cir.

1999) (citing Ex parte Thomas, 953 S.W.2d 286, 288–89 (Tex. Crim. App. 1997)).

Thus, the TCCA’s denial of Carmell’s claims is entitled to deference under

AEDPA, with the unreasonable-application inquiry for each claim focusing on

the TCCA’s ultimate legal conclusion, notits reasoning. See Neal v. Puckett, 286

F.3d 230, 246 (5th Cir. 2002).

A.

Carmell challenges the district court’s rejection of his claim that the

decision to affirm his convictions on Counts 7 through 10 on remand violated his

constitutional rights. Carmell argues that the Texas Court of Appeals acted in

contravention of the Supreme Court’s mandate by reviewing the record to find

evidence corroborating the victim’s testimony even though, he contends, the

Supreme Court had already determined that the evidence was legally

insufficient to sustain those convictions. Thus, according to Carmell, the Texas

Court of Appeals’ error in implementing the mandate on remand violated not

only the Supremacy Clause, see U.S. CONST. art. VI, cl. 2; Martin v. Hunter’s

Lessee, 14 U.S. (1 Wheat.) 304 (1816),2 but also his due process rights when “the

State [was allowed] to resurrect the corroboration issue.”3 As we see Carmell’s
No. 06-40578

v. Illinois, 351 U.S. 12, 19–20 (1956) (imposing constitutional constraints on states when they

choose to create appellate review). Along those lines, Carmell urges that “[j]ustice . . . cannot

be secured” when an inferior court, the Texas Court of Appeals here, “refuses to honor the

decision of the United States Supreme Court,” the final arbiter of the matter.

4 See also Hunter’s Lessee, 14 U.S. (1 Wheat.) at 351–52 (“It is an historical fact, that

the [S]upreme [C]ourt of the United States have, from time to time, sustained this appellate

jurisdiction [over state courts] in a great variety of cases, brought from the tribunals of many

of the most important states in the union, and that no state tribunal has ever breathed a

judicial doubt on the subject, or declined to obey the mandate of the [S]upreme [C]ourt . . . .

This weight of contemporaneous exposition by all parties, this acquiescence of enlightened

state courts, and these judicial decisions of the [S]upreme [C]ourt through so long a period, do,

as we think, place the doctrine upon a foundation of authority which cannot be shaken . . . .”).

9

mandate argument, the Supreme Court’s holding in Carmell II was based on a

violation of the Ex Post Facto Clause, and were Carmell to be held in violation

of the Court’s mandate (as he argues), the violation of the Ex Post Facto Clause

would be ongoing.

It has long been established that inferior state courts are obligated to

enforce the Supreme Court’s mandate on remand. See Briggs v. Pennsylvania

R.R. Co., 334 U.S. 304, 306 (1948); 28 U.S.C. § 1257(a).4 That is to say that once

a case has been decided by the Supreme Court on appeal and remanded to the

court below, “[w]hatever was before the Court and is disposed of, is considered

finally settled. The inferior court is bound by the decree, as the law of the case;

and must carry it into execution according to the mandate . . . .” Ex Parte

Sibbald v. United States, 37 U.S. (12 Pet.) 488, 492 (1838); see Vendo v. LektroVend Corp., 434 U.S. 425, 427–28 (1978); In re Sanford Fork & Tool Co., 160

U.S. 247, 255 (1895); see also United States v. Becerra, 155 F.3d 740, 753 (5th

Cir. 1998) (“[A] lower court on remand must implement both the letter and the

spirit of the [appellate court’s] mandate, and may not disregard the explicit

directives of that court.” (second alteration in original) (citation and internal

quotation marks omitted)), abrogated on other grounds as recognized in United

States v. Farias, 481 F.3d 289, 291–92 (5th Cir. 2007). However, “[w]hile a
No. 06-40578

10

mandate is controlling as to matters within its compass, on the remand a lower

court is free as to other issues.” Quern v. Jordan, 440 U.S. 332, 347 n.18 (1979)

(quoting Sprague v. Ticonic Nat’l Bank, 307 U.S. 161, 168 (1939)). Therefore, to

determine whether the Supreme Court’s mandate was not followed in Carmell

III, we must carefully examine the issues that were actually decided by the

Supreme Court in Carmell II as well as the Court’s final directive in that case.

See Kansas City S. Ry. Co. v. Guardian Trust Co., 281 U.S. 1, 10 (1930) (“For the

proper construction of the decree under consideration, regard is to be had to the

issues before the court on appeal, the findings applied for and the directions

given.”). 

To begin, in support of his construction, Carmell cites to several places in

Carmell II where he claims that the Court suggested that the evidence of

corroboration was insufficient. See, e.g., 529 U.S. at 530 (“[P]etitioner could be

(and was) convicted on the victim’s testimony alone, without any corroborating

evidence.”); id. at 531 (“Texas’ retrospective application of the amendment to

[a]rticle 38.07 permitted petitioner to be convicted with less than the previously

required quantum of evidence.”). However, these snippets from the majority

opinion were preceded by footnote four, explaining in relevant part that:

The State argues that there is evidence corroborating

the victim’s testimony, so it does not help petitioner

even if the old law applies. Before the state court,

however, petitioner argued that “there was nothing to

corroborate [the victim’s] version of events,” . . . and

that court accepted the contention as correct for the

purposes of its decision. We do the same here.

Carmell II, 529 U.S. at 519 n.4 (emphasis added) (internal citations omitted).

The most plausible reading ofthis passage is thatthe Court only assumed a lack

of corroborating evidence, arguendo, in order to reach the ex post facto question.

Such assumptions are not part ofthe mandate and, as such, do not constrain the

lower court on remand. See WRIGHT,MILLER & COOPER,FEDERAL PRACTICE AND
No. 06-40578

11

PROCEDURE: JURISDICTION 2d § 4478.3, at 757 (2002) (“A mere recital of matters

assumed for purposes of decision and dicta are not part of the mandate.”

(emphasis added)); United States v. Uccio, 940 F.2d 753, 757–58 (2d Cir. 1991)

(explaining that the passage in the court of appeals’ opinion that simply stated

the position taken by the district court before the appeal was not a ruling on the

issue and did not establish the law of the case). Thus, the Court’s later

references to insufficient corroboration neither explicitly nor implicitly disposed

of the issue. 

Further support for this interpretation is found in Justice Ginsburg’s

dissentin Carmell II. Cf. Harris v. Sentry Title Co., 806 F.2d 1278, 1280–81 (5th

Cir. 1987) (relying, in part, on the dissent in the prior appeal to determine the

scope of the court’s mandate). In particular, the dissent cites the majority

opinion’s footnote four, noting:

The Texas Court of Appeals did not rule on whether the

State in fact did corroborate [the victim’s] testimony at

trial. I note the testimony of [the victim’s] mother that

when she visited Carmell in jail and told him he needed

to confess if he was sorry for what he had done, he

wrote “‘adultery with [the victim]’” on a piece of paper.

[Carmel I,] 963 S.W.2d at 835. That testimony might

count as corroboration. Because this question is outside

the grant of certiorari, I (like the Court, see ante, at

[519] n.4) do not further address it.”

Carmell II, 529 U.S. at 555 n.2 (Ginsburg, J., dissenting) (emphasis added).

Additionally, it is key that the majority opinion’s ultimate holding was

open-ended—“we hold that petitioner’s convictions on [C]ounts 7 through 10,

insofar as they are not corroborated by other evidence, cannot be sustained under

the Ex Post Facto Clause”—and instructed that “the judgment of the Texas

Court of Appeals is reversed, and the case is remanded for further proceedings

not inconsistent with this opinion.” Id. at 552–53 (emphasis added). Taken as

a whole, itis clear thatthe Supreme Courtin fact neither considered nor decided
No. 06-40578

5 We also note that the Supreme Court, in reaching its conclusion that the Texas Court

of Appeals’ decision violated the Ex Post Facto Clause, stated the Texas rule that a “trial

court’s failure to comply with the requirements of [a]rticle 38.07 . . . results . . . in the reversal

of conviction and remand for entry of an order of acquittal.” Id. at 518 n.2. Because the

sufficiency requirements of article 38.07 were not included in the jury instructions at trial and

were first raised as an issue when Carmell appealed his convictions, the “trial court” did not

“fail[ ] to comply with the requirements of [a]rticle 38.07.” Id. Consequently, the improper

application of the amended version of article 38.07 occurred in the Texas Court of Appeals in

Carmell I and could be corrected on remand by applying the pre-amendment statute to the

record evidence without transgressing the Supreme Court’s mandate.

12

(even implicitly) the issue of corroboration, and thus the Texas Court of Appeals

decision to visit the issue of corroboration on remand was not inconsistent with

the Supreme Court’s mandate.5

Additionally, we find unpersuasive Carmell’s citations to decisions from

other courts construing his victory in Carmell II to suggest that a different

outcome should have resulted on remand in Carmell III. See, e.g., Hameen v.

Delaware, 212 F.3d 226, 241–42 (3d Cir. 2000) (“[The Carmell II Court] held that

the 1993 amendment to the Texas law was ex post facto as applied to [Carmell]

because it reduced the ‘quantum of evidence’ necessary to convict [Carmell]

inasmuch as without the amendment he could not have been convicted on the

counts in question.”); McColloch v. State, 39 S.W.3d 678, 683 (Tex.

App.—Beaumont 2001, pet. ref’d). Those opinions only invoked Carmell II for

its ex post facto analysis. They neither conducted a searching review of the case

nor ascertained the exact scope of the mandate. For those courts’ purposes, it

was sufficient to present the underlying facts in Carmell II without explaining

that the corroboration issue had yet to be decided in fact. 

Carmell further argues that the Texas Court of Appeals determined in

Carmell I that there was insufficient evidence to corroborate the victim’s

testimony, and, thus, that its subsequent decision on remand, Carmell III, also

conflicted with the “law of the case.” Carmell misreads the opinion of the Texas

Court of Appeals in Carmell I, which only mentioned the issue of corroborating
No. 06-40578

13

evidence in framing Carmell’s argument. See Carmell I, 963 S.W.2d at 836 (“In

his sixth point, appellant argues that he should be acquitted of one of the sexual

assault convictions because [the victim] did not tell her mother about the abuse

until ‘years after the offense’ and there was nothing to corroborate [the victim’s]

version of events.”(emphasis added)). Thereafter, the Court dealt solely with the

issue of which version of article 38.07 should apply—the ex post facto issue. See

id.

In sum, we agree with the district court’s decision to deny relief on this

issue because we cannot say that the state habeas court’s decision—an implied

conclusion that Carmell III is not inconsistent with Carmell II—“was contrary

to, or involved an unreasonable application of, clearly established Federal law,

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

§ 2254(d)(1).

B.

Carmell also contends that he was denied effective assistance of appellate

counsel in the Texas Court of Appeals during the continuation of his direct

appeal proceedings on remand from the Supreme Court. As support, Carmell

points to his first attorney’s withdrawal from the case because of his

“unwillingness to be a zealous advocate” and to his second attorney’s failure to:

“(1) file a brief, (2) file a responsive brief to the State’s brief, (3) file a motion for

extension of time to file a brief, and/or (4) request oral argument.” Additionally,

Carmell urges that both attorneys’ alleged failures amounted to the constructive

denial of any assistance on appeal requiring a presumption of prejudice. See

Penson v. Ohio, 488 U.S. 75, 88 (1988). Alternatively, Carmell submits that

prejudice exists because there is a reasonable probability that, but for counsels’

deficient performance, Carmell would have prevailed on remand. 

Before turning to the merits of Carmell’s ineffective assistance of counsel

claim, we first address a factual finding of the district court. In its answer to
No. 06-40578

6

In the State’s appellate brief, its argument in the district court has morphed into two

more complicated legal arguments: (1) the invited error doctrine estops Carmell from claiming

ineffective assistance of counsel because he terminated Whitlock’s representation; and (2)

Carmell waived his right to counsel by insisting upon his choice of counsel at a critical stage

of the proceedings. We do not address arguments raised for the first time on appeal. Instead,

we will address the argument which the State made to the district court and formed the basis

for the district court’s finding of fact (and ensuing legal conclusion). We note, however, that

the state trial court obviously did not conclude that Carmell waived his right to counsel based

upon the letter because it simultaneously appointed McKeathen when it allowed Whitlock to

withdraw as counsel. 

14

Carmell’s federal habeas petition, the State argued, very briefly, that Carmell

could not allege that he received ineffective assistance of counsel when he

requested that his counsel withdraw at a critical stage of the proceeding.6 The

MJ’s report and recommendation, which was adopted by the district court, found

that “counsel withdrew as counsel for Petitioner based upon Petitioner’s own

request” in the July 5, 2000 letter and that Carmell had failed to show deficient

performance by virtue of that requested withdrawal. 

The district court’s determination that Carmell requested Whitlock to

withdraw as counsel is a finding of fact that is reviewed for clear error. Bosley,

409 F.3d at 662. For the reasons stated below, we conclude that the district

court’s finding that Carmell requested Whitlock to withdraw is clearly

erroneous. 

Whitlock’s motion to withdraw as counsel states that he withdrew because

he “could not meet certain criteria set out in writing by [Carmell].” The criteria

set forth in the letter, detailed supra in Part I, do not exceed reasonable

expectations of competent representation. Confidentiality, communication, and

collaboration are essential to all representations and are neither excessive nor

unreasonable demands to make upon counsel. Carmell’s post-script to “do

whatever it takes to win[, o]r get me another attorney” was not a directive

requiring Whitlock to withdraw. Indeed, Carmell’s letter concluded with the

statement that he was looking forward to a phone call or visit from Whitlock.
No. 06-40578

15

In sum, Carmell’s letter was merely an expression of an earnest desire to have

competent, dedicated representation during the remand proceedings. Only

Whitlock was in a position to determine if he had sufficient time and resources

to provide Carmell with the quality of representation described in the letter.

Whitlock made this determination unilaterally and had no contact with Carmell

regarding the decision to withdraw. Therefore, we conclude that the district

court erred when it found Carmell requested Whitlock to withdraw. 

We nextturn to the substance of Carmell’s ineffective assistance of counsel

claim. After the district court faulted Carmell for the ill-timed substitution of

counsel, it apparently failed to consider Carmell’s argument that his second

attorney, McKeathen, rendered constitutionally ineffective assistance of counsel

by failing to file any brief or motion for extension of time before the Texas Court

of Appeals. 

A criminal defendant has a constitutional right to the effective assistance

of counsel on his first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 397

(1985). Because an appellant after remand “stands in the same position” under

Texas law as when the initial appeal was filed, Theus v. State, 863 S.W.2d 489,

491 (Tex. Crim. App. 1993) (en banc), this constitutional guarantee extends to

the remand proceedings here. Ordinarily, to prevail on a claim of ineffective

assistance of counsel, a defendant must show: (1) that his counsel’s performance

was deficient in that it fell below an objective standard of reasonableness; and

(2) that the deficient performance prejudiced his defense. Strickland v.

Washington, 466 U.S. 668, 689–94 (1984). To demonstrate prejudice, a

petitioner must show thatthere is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Id. at 694. However, “[i]n certain Sixth Amendment contexts, prejudice is

presumed.” Id. at 692. One such context includes the “[a]ctual or constructive

denial of the assistance of counsel altogether.” Id.; Penson, 488 U.S. at 88.
No. 06-40578

7 386 U.S. 738, 744 (1967) (holding that a criminal appellant may not be denied

representation on appeal based on appointed counsel’s bare assertion that he or she is of the

opinion that there is no merit to the appeal and thus providing a prophylactic procedure under

such circumstances, requiring a “conscientious examination” of the case and a “brief referring

to anything in the record that might arguably support the appeal”).

16

Carmell contends thatthe circumstances of his appointment of counsel rendered

it a “mere formal appointment” and the proceedings on remand a “meaningless

ritual.” Consequently, he argues that prejudice should be presumed, as it was

in Penson.

In Penson, the petitioner’s appellate counsel filed a document captioned

“Certification of Meritless Appeal and Motion,” failing to draw attention to

anything that might arguably support the appeal as suggested by the Court in

Anders v. Califonia,

7 and moved the court to allow him to withdraw as appellate

counsel. 488 U.S. at 77–78. The state appellate court granted the counsel’s

motion to withdraw before its own examination of the record. Id. at 78. Some

time later,the state court reviewed the case and found thatthe record supported

several arguably meritorious grounds for reversal of the petitioner’s conviction

and modification of his sentence. Id. at 81. Nevertheless, it did not appoint new

counsel. Id. The Supreme Court held that the state appellate court had erred

when it failed to appoint new counsel once it had determined that the record

supported several arguable claims. Id. at 83–84. Because this left the petitioner

“entirely without the assistance of counsel on appeal,” the Court presumed

prejudice. Id. at 88–89.

In the more recent case of Smith v. Robbins, 528 U.S. 259 (2000), the

Court further explained the scope of its holding in Penson. Namely, in Penson

the Court“distinguished denial of counsel altogether on appeal, which warrants

a presumption of prejudice, from mere ineffective assistance of counsel on

appeal, which does not.” Id. at 286. In Robbins, the Court concluded that

because the defendant there “ha[d] received appellate counsel who ha[d]
No. 06-40578

8 The Court’s holding in Robbins stemmed, at least in part, from federalism and

separation-of-powers concerns raised by the prospect of the federal judiciary dictating specific

details of an Anders process to states, rather than leaving the “challenging task of crafting

appropriate procedures . . . to the laboratory of the States in the first instance.” Id. at 275

(alteration in original) (citation and internal quotation marks omitted). 

17

complied with a valid state procedure for determining whether the defendant’s

appeal [was] frivolous, and the State ha[d] not at any time left the defendant

without counsel on appeal, there [was] no reason to presume that the defendant

had been prejudiced.” Id. (emphasis added).8 The Robbins Court reiterated that

while a “strong presumption of reliability” normally applies to judicial

proceedings, “when, as in Penson, there has been a complete denial of counsel,

[courts] understandably presume the opposite.” Id.

Here, Carmell contends that because his first attorney withdrew and no

brief was ever filed on his behalf during his appeal proceedings on remand, his

situation is similar to that of the petitioner in Penson. However, the facts

presented in Penson were more egregious than those in this case in that in

Penson the state appellate court chose not to appoint new counsel even after it

discovered arguable merit in the petitioner’s appeal. Those facts stand in stark

contrast to the Texas trial court’s decision here to appoint new counsel the same

day that Carmell’s first attorney on remand was permitted to withdraw. As

such, Carmell, unlike the petitioner in Penson, was never actually denied

counsel at a critical stage of his appeal on remand. See Roe v. Flores-Ortega, 528

U.S. 470, 483 (2000) (“The presumption that counsel’s assistance is essential

requires us to conclude that a trial is unfair if the accused is denied counsel at

a critical stage. The same is true on appeal.” (citations and internal quotation

marks omitted)). 

Of course,the “complete denial of counsel,”—when counsel is either totally

absent or prevented from assisting the accused during a critical stage of a

proceeding—is not the only situation in which prejudice is presumed. Wright v.
No. 06-40578

18

Van Patten, --- U.S. ---, 128 S. Ct. 743, 746 (2008) (citation omitted). In United

States v. Cronic, 466 U.S. 648, 658 (1984), the Supreme Court recognized two

additional situations in which a Sixth Amendment violation may be found

“without inquiring into counsel’s actual performance or requiring the defendant

to show the effect it had” on the proceeding. Bell v. Cone, 535 U.S. 685, 695

(2002). They include: “where counsel is called upon to render assistance under

circumstances where competent counsel very likely could not”; and, most

relevant here, where a petitioner is represented by counsel, but his or her

“counsel entirely fails to subjectthe prosecution’s case to meaningful adversarial

testing.” Id. at 696 (emphasis added) (citation omitted); see Cronic, 466 U.S. at

656 (“The right to effective assistance of counsel is . . . the right of the accused

to require the prosecution’s case to survive the crucible of meaningful

adversarialtesting.”). With respect to the latter category of cases, the Court has

clearly indicated that the attorney’s failure to test the prosecution’s case must

be complete in order to presume prejudice. Cone, 535 U.S. at 697; see also

Haynes v. Cain, 298 F.3d 375, 381 (5th Cir. 2002) (en banc) (reinforcing the

notion that defense counsel must entirely fail to subject the prosecution’s case to

meaningful adversarial testing for the Cronic exception to apply).

Here, Carmell’s attorneys completely failed to challenge the State’s case

during remand proceedings in the Texas Court of Appeals. Specifically,

Carmell’s first court-appointed attorney on remand, Whitlock, failed to discuss

the case with him. And, Carmell’s second court-appointed attorney, McKeathen,

failed to check with Whitlock, the State’s attorney, or the court in order to

determine the status of the case before the Texas Court of Appeals’ judgment

was issued; failed to file a timely motion for leave to file a supplemental brief or

for extension of time; and ultimately failed to file a brief in the Texas Court of

Appeals responding to the State’s arguments. Without any brief filed on his

behalf, Carmell was deprived of his right to challenge the State’s
No. 06-40578

19

characterization of the trial evidence and the legal theory upon which the Texas

Court of Appeals searched the record de novo for corroboration of the victim’s

testimony. In addition, McKeathen never notified Carmell of his appointment

as attorney of record, thereby leaving Carmell entirely unaware of what was

occurring in the appeal process. These aggregated errors undermined the

reliability of the process. And, they are of sufficient magnitude to warrant the

presumption of prejudice and for us to conclude that Carmell’s constitutional

rightto the effective assistance of counsel on appeal (after remand) was violated.

Therefore, we conclude that, in light of the complete lack of an adversarial

testing of issues stemming from the Supreme Court’s remand order, the state

habeas court’s denial of relief on Carmell’s ineffective assistance of counsel claim

was an objectively unreasonable application of the Supreme Court’s clearly

established Sixth Amendment jurisprudence. See Neal, 286 F.3d at 236

(analyzing an ineffective assistance of counsel claim under the “unreasonable

application” standard of § 2254(d)(1)). As such, the district court erred in

denying Carmell federal habeas relief.

III.

For the foregoing reasons, we AFFIRM the district court’s denial of relief

based on the alleged failure of the Texas Court of Appeals to follow the Supreme

Court’s mandate. But, with respect to Carmell’s ineffective assistance of

appellate counsel claim on remand, we REVERSE the district court’s judgment

denying habeas relief and REMAND the case to the district court for entry of

judgment granting habeas relief on Counts 7 through 10, unless the state affords

Carmell an out-of-time appeal in theTexas Court of Appeals, with the assistance

of counsel, within such reasonable time as the district court may fix.