## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 01-40159

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### J ERMARR 

### C ARLOS 

### A RNOLD



### ,

Petitioner-Appellant,

VERSUS



### J ANIE 

### C OCKRELL



### , D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

, I NSTITUTIONAL D IVISION

,



### Respondent-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

_________________________ August 28, 2001

Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM: *

Jermarr Arnold was convicted of capital mu rder and sentenced to death. He appeals

the denial of his federal petition for wri t of

habeas corpus, arguing that he was deprived of

effecti ve assistance of counsel because the

district court forced his attorney s to com pl y 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 t o play an

ac t ive role in his trial, threatening to proceed * Pursuan t to 5 T H C IR

. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the

limited circum stances set forth in 5 T H C IR

. 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 mult iple jurors with law

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

to present any mitigating evidence during the

p enalty phase or to argue against the death penalty. During the sentencing phase, Arnold

told t he jury that the death penalty was the proper punishment in his case.

Arnold n ow contends, however, that he

was not com

pet ent to override counsel’s advice and therefore that the court’s decision to
allow h im t o do so deprived him of effective assistance of counsel. We disagree.

II.

There is no dispute tha t Arnold attempted to waive any ineffective assistance of counsel

claim. Not only did he request the court’s assistance in enforcing his instructio n s to counsel, he remarked after the trial that

I wish to say that I’m quite satisfied with the decision made by the jury. I’m also

sat isfied with the 

### S

S the conduct of the

Court. I feel that all my rights have

been fully protected and reco gnized.

And I have been very adeq u ately represented 

### SS

and vigorously so 

### SS

by

my 

### SS by my two c o urt appointed
attorneys.

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

circumsta nces are extremely rare when counsel

is not required to fol lo w his client’s

i nstructions on a decision of this natur e.”

Low enfield 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

h is 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 fin d ings

that he was. Instead, citing W estbrook v. Arizo n a , 384 U.S. 150 (1966) (per curiam), he

argues that “[a] de fendant’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 G odinez v. Moran

, 509 U.S. 389,

398 (1993), the Court 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 hig her t han (or even different from)”
competence to stand trial. 2 A ccord Dunn v.

1 Accord Autry v. McKaskle

, 727 F.2d 358, 561 (5th Cir. 1984) (concluding t hat, 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 c ompetent to stand trial, a defendant must have “‘sufficient present ability to consult

with his l awyer 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 con s ulting with his

attorneys and therefore was c o mpetent 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. S ee Coleman

, 244

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

### SS a course of action he undisputedly was competent to

t ake under G odinez 

### SS

if not allowed to be an active participant in the trial. Under those circumstances, we cannot say that the trial court deprived Arnold of effective assista nce ofcounsel merely by allowing him to make strategic decisions.

The district court analyzed t his 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 co m petent under
Godinez to instruct counsel no t to present mitigating evidence during sentencing phase).

In Godinez

, 509 U.S. at 4 00, the Court recognized that, in addition to determining

competence, the tr ial 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 statemen ts before and during

trial confirm that it was.