IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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m 01-40159

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JERMARR CARLOS ARNOLD,

Petitioner-Appellant,

VERSUS

JANIE COCKRELL,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

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Appeal from the United States District Court

for the Southern District of Texas

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August 28, 2001

Before SMITH, BENAVIDES,

and DENNIS, Circuit Judges.

PER CURIAM:*

Jermarr Arnold was convicted of capital

murder and sentenced to death. He appeals

the denial of his federal petition for writ of

habeas corpus, arguing that he was deprived of

effective assistance of counsel because the

district court forced his attorneys to comply

with his instructions. We affirm.

I.

Before trial, Arnold complained to the

court that his appointed counsel did not allow

him to participate in determining defense strategy. He also asserted his intent to play an

active role in his trial, threatening to proceed

* 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.
2

pro se if not allowed to participate in his defense. During trial and over the objections of

his counsel, Arnold made several decisions affecting his defense, including refusing to challenge peremptorily multiple jurors with law

enforcement backgrounds and refusing to allow counsel to call defense witnesses or either

to present any mitigating evidence during the

penalty phase or to argue against the death

penalty. During the sentencing phase, Arnold

told the jury that the death penalty was the

proper punishment in his case.

Arnold now contends, however, that he

was not competent to override counsel’s advice and therefore that the court’s decision to

allow him to do so deprived him of effective

assistance of counsel. We disagree.

II.

There is no dispute that Arnold attempted

to waive any ineffective assistance of counsel

claim. Not only did he request the court’s assistance in enforcing his instructions to

counsel, he remarked after the trial that 

I wish to say that I’mquite satisfied with

the decision made by the jury. I’m also

satisfied with theSSthe conduct of the

Court. I feel that all my rights have

been fully protected and recognized.

And I have been very adequately

representedSSand vigorously soSSby

mySSby my two court appointed

attorneys.

Moreover, all alleged errors resulted from Arnold’s express instructions to counsel. “The

circumstances are extremely rare when counsel

is not required to follow his client’s

instructions on a decision of this nature.”

Lowenfield v. Phelps, 817 F.2d 285, 292 (5th

Cir. 1987), aff’d, 484 U.S. 231 (1988).1

The only issue before us, therefore, is

whether Arnold was competent so to instruct

his counsel. Arnold admits that the “lower

courts . . . determined whether or not Arnold

was competent to stand trial or represent himself,” and he does not dispute their findings

that he was. Instead, citing Westbrook v. Arizona, 384 U.S. 150 (1966) (per curiam), he

argues that “[a] defendant’s competency to

stand trial is gauged at a level different from

that of competency to waive a trial right, or to

commit a prescribed act.”

Arnold misreads the import of Westbrook,

however. In Godinez v. Moran, 509 U.S. 389,

398 (1993), theCourt revisited Westbrook and

expressly “reject[ed] the notion that

competence to plead guilty or waive the right

to counsel must be measured by a standard

that is higher than (or even different from)”

competence to stand trial.2 Accord Dunn v.

1 Accord Autry v. McKaskle, 727 F.2d 358, 561

(5th Cir. 1984) (concluding that, if defendant

knowingly chose to seek the death penalty and not

to present mitigating evidence, his counsel was

“ethically bound” to obey that choice).

2 To be competent to stand trial, a defendant

must have “‘sufficient present ability to consult

with his lawyer with a reasonable degree of understanding’ and [have] ‘a rational as well as factual understanding of the proceedings against

him.’” Godinez, 509 U.S. at 396 (quoting Dusky

v. United States, 362 U.S. 402 (1960) (per curiam)); accord Mata v. Johnson, 210 F.3d 324, 329

n.2 (5th Cir. 2000). Arnold’s high degree of involvement indicates he was capable of understanding the proceedings and consulting with his

attorneys and therefore was competent to make

strategic decisions during voir dire and sentencing.

(continued...)
3

Johnson, 162 F.3d 302, 307-08 (5th Cir.

1998). Because Arnold was competent to

stand trial and therefore to waive his right to

counsel, he was, a fortiori, competent to override the advice of counsel. See Coleman, 244

F.3d at 545. Indeed, Arnold threatened to discharge counsel and proceed pro seSSa course

of action he undisputedly was competent to

take under GodinezSSif not allowed to be an

active participant in the trial. Under those circumstances, we cannot say that the trial court

deprived Arnold of effective assistance of

counsel merely by allowing him to make strategic decisions.

The district court analyzed this issue in a

comprehensive seventy-seven-page opinion.

Essentially for the reasons given by the district

court, the judgment is AFFIRMED.

2

(...continued)

See Coleman v. Mitchell, 244 F.3d 533, 545 (6th

Cir. 2001) (relying on defendant’s high degree of

activity at trial in finding him competent under

Godinez to instruct counsel not to present

mitigating evidence during sentencing phase).

In Godinez, 509 U.S. at 400, the Court

recognized that, in addition to determining

competence, the trial court also must ensure that

the waiver of the right to counsel is knowing and

voluntary. Arnold does not argue that his decision

to ignore the advice of counsel was not knowing or

voluntary, and his statements before and during

trial confirm that it was.