UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 96-20356

PRESTON MILTON DYER,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT 

OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

March 18, 1997

Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.

PER CURIAM:

Petitioner/Appellant Preston Milton Dyer pleaded not guilty to

a charge of murder in Texas state court. On May 7, 1991, a jury

found Dyer guilty as charged and assessed punishment at life

imprisonment. The Fourteenth Court of Appeals affirmed Dyer’s

conviction on January 23, 1992. Dyer filed a petition for

discretionary review which was refused by the Texas Court of

Criminal Appeals on June 24, 1992. Dyer next filed an application

for state writ of habeas corpus, arguing that he was denied his

right to self-representation on direct appeal. On July 20, 1994,

the Court of Criminal Appeals denied his application. Dyer then
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filed a petition for federal habeas corpus relief in federal

district court, again arguing that he was denied his right to selfrepresentation on direct appeal. On March 27, 1996, the district

court granted summary judgment in favor of Respondent. Dyer now

appeals.

Dyer was convicted in state court on May 7, 1991. He filed a

notice of appeal on May 10, 1991. The statement of facts was filed

with the Court of Appeals on July 9, 1991. Dyer’s appellate brief

was filed on September 9, 1991, by his appointed counsel, and the

State’s brief was filed on November 4, 1991. On November 12, 1991,

Dyer filed his motion to dismiss counsel and proceed pro se. On

November 21, the Court of Appeals ordered the trial court to

conduct a hearing and make certain findings of fact in regard to

Dyer’s motion.

On December 19, 1991, the state trial court conducted a

hearing. At the hearing, Dyer told the trial court that he wanted

to dismiss his court-appointed counsel and represent himself pro

se, stating that, “she’s been misleading me.” Dyer indicated

displeasure with the brief filed by his counsel and said, “she

delayed me and let all my rights be waived.” Dyer also said that

his counsel misled him and “abandoned” him by failing to perfect an

appeal. When the trial court told Dyer that his counsel had

perfected an appeal on his behalf, Dyer stated that he was

dissatisfied with the statement of facts contained within the

brief. Dyer also alleged that his counsel failed to “communicate”

with him. Several times during the hearing, Dyer indicated that
3

his real intent was to proceed pro se with his appointed counsel.

When the trial court informed him that he had no such right, he

expressed a desire to discharge his counsel and proceed pro se.

Upon conclusion of the hearing, the state trial court made the

following findings of fact:

The Court wishes the record to reflect

that the first trial attorney appointed on

this case was Mr. Jose Gutierrez. 

***

That with respect to this defendant, that he

was unable to maintain an appropriate

relationship with his first court-appointed

attorney in this case and was, in fact,

abusive to Mr. Gutierrez to such an extent

that it destroyed Mr. Gutierrez’ ability to

effectively represent him and that,

accordingly, that attorney was permitted to

withdraw. Mr. Ron Mock was then appointed to

undertake the representation of Mr. Dyer.

The Court finds that no lawyer will

satisfy Mr. Dyer.

***

The Court further finds that this man is

not educated in the law; that he is a

contumacious individual; that no attorney

could satisfy him.

The Court finds that his waiver of lawyer

is certainly voluntarily made. The court has

a question in its mind as to whether this is

an intelligent waiver. Certainly this man has

displayed this understanding of the

consequences of pro se representation. The

Court does not think it is in the best

interest of justice or Mr. Dyer that he

represent himself.

***

I find Mr. Dyer to be belligerent.

Relying upon these fact findings by the state trial court, the
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state court of appeals denied Dyer’s motion to proceed pro se and

held as follows:

Appellant’s brief was filed on September

9, 1991, and the State’s brief was filed on

November 4, 1991, at which time the case

became subject to disposition. On November

12, 1991, appellant filed his motion to

dismiss counsel and proceed pro se.

***

We hold that, under the circumstances,

appellant’s assertion of his right to selfrepresentation was not timely and that

granting such motion at this time would

obstruct the orderly procedure of the court.

From past experience we are aware that if

pro se representation is permitted at this

juncture, it would take at least a month

before the record could be prepared and

forwarded to appellant. Appellant would then

have thirty days, barring any extensions, to

file his brief. The State would thereafter

have twenty-five days to file its response.

In the event appellant did not timely file his

brief, one or more additional hearings would

be required. It might then become necessary

to appoint new counsel, in which case another

series of delays would be inevitable. To

permit pro se representation at this point

would delay the proceedings a minimum of three

months, and conceivably much longer. Finding

that appellant did not timely assert his

motion to proceed pro se, we overrule such

motion.

At federal habeas corpus review, the federal district court

considered both the factual findings of the state trial court, as

well as the reasoning of the state court of appeals. The district

court concluded that “allowing the Petitioner to assert the right

to self-representation six months after notice of appeal, two

months after his appellate brief was filed, and after the State’s

appellate brief was filed, would obstruct the orderly
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administration of justice and compromise the integrity of the

appellate process.” The district court added that “such an impact

stands in stark contrast to the minimal effect of a defendant’s

assertion of the right to self-representation made shortly before

trial.” Accordingly, the district court denied Dyer his petition

for habeas corpus relief.

“When considering requests for federal habeas corpus relief,

this Court has frequently explained that we review the district

court's factual findings for clear error, but review issues of law

de novo.” Trest v. Whitely, 94 F.3d 1005, 1007 (5th Cir. 1997).

This case precisely fits the language in Myers v. Johnson, 76

F.3d 1330, 1335 (5th Cir. 1996):

...when a criminal appellant accepts the assistance

of counsel, but later objects to his attorney’s

appeal strategy or preparation of the brief, the

criminal appellant cannot then expect to be allowed

to file a supplemental pro se brief. By accepting

the assistance of counsel the criminal appellant

waives his right to present pro se briefs on direct

appeal.

After carefully reviewing the briefs, the record, and the

relevant case law, we are satisfied that the decision of the

district court to deny Dyer’s petition for writ of habeas corpus

was not made in error. Accordingly, the judgment of the district

court is, in all things, 

AFFIRMED.