1 Judge Dennis dissents, reserving the right to file a

dissenting opinion at a later date. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30656

UNITED STATES OF AMERICA,

Plaintiff,

VERSUS

LEN DAVIS,

Defendant-Petitioner.

On Petition for Writ of Mandamus to the United States

District Court for the Eastern District of Louisiana

July 17, 2001

Before DeMOSS, PARKER and DENNIS, 1 Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Defendant-Petitioner, Len Davis appeals the district court’s

denial of his motion to proceed pro se during the penalty phase of

his capital case and seeks, in the alternative, a writ of mandamus

compelling the district court to allow him to exercise his right of

self-representation. The Government filed a response supporting

Davis’s request for a writ of mandamus. The respondent district

court relies on its extensive Order a nd Reasons, filing nothing

further in this court. We grant the writ.

I. FACTS AND PROCEDURAL HISTORY2

Davis was convicted of civil rights murder in violation of 18

U.S.C. §§ 241 and 242, and sentenced to death. On appeal, we

upheld the conviction but reversed the death sentence and remanded

for a new penalty trial. U nited States v. Causey

, 185 F.3d 407

(5th Cir. 1999). Upon remand, the district court appointed counsel

to represent Davis. Davis announced to the court that he desired

to represent himself, but agreed to allow appointed counsel to

serve as “co-counsel,” so long as Davis could remain in control of

trial deci sions. Since remand, Davis has consistently taken the

position, against the advice of counsel, that he wishes to forego

the presentation of tr aditional mitigating evidence during the

penalty phase, indicating that he will focus instead on attacking

the strength of the government’s case as to guilt. The district

court, as part of its competency det ermination, found itself

persuaded that “residual doubt” as to guilt is a legitimate

mitigating factor appropriately argued during the penalty phase of

a capital case.

After holding a hearing pursuant to Faretta v. California

, 422

U.S. 806 (1975), the district court found that Davis’s decision to

represent himself was made knowingly and intelligently. However,

the dis trict court concluded that the F aretta right to selfrepresentation does not extend to criminal sentencing, and even if

it does, Davis’s Fare tta interests are outweighed by the Eighth

Amendment requirement that the death penalty not be imposed3

arbitrarily and capriciously. Davis filed an interlocutory appeal

and an alternative petition for writ of mandamus.

II. DISCUSSION

A. Statutory Right to Self-Representation

We begin by noting that Davis has a statutory right to

represent himself pursuant to 28 U.S.C. § 1654 which states, “In

all courts of the United States the parties may plead and conduct

their own cases personally or by counsel as, by the rules of such

courts, respecti vely, are permitted to manage and conduct causes

therein.” Although Congress has clearly spoken on the issue

presented in this case, we construe the district court’s Eighth

Amendment analysis as calling into question the constitutionality

of § 1654 as it relates to the sentencing phase of capital murder

trials. For that reason, we must address the constitutional

underpinnings of the district court’s decision.

B. Faretta ’s Focus on Individual Autonomy

In Faretta v. California

, 422 U.S . 806 (1975), the Supreme

Court held that a criminal defendant has a constitutional right to

represent himself if he voluntarily and intelligently chooses to do

so. The Court held that the Sixth Amendment affords an accused the

right to personally ma ke his own defense because the “defendant,

and not his lawyer or the State, will bear the personal

consequences of a conviction.” I d. at 834. The defendant’s choice

“must be honored out of th at respect for the individual which is4

th e lifeblood of the law.” I d

. (quoting Illinois v. Allen

, 397

U.S. 337, 350-51 (1970) (Brennan, J., concurring)) (internal

quotation marks omitted).

C. Does Faretta Extend to the Punishment Phase of Trial?

Last year, the Supreme Court stated that Faretta “was confined

to the right to defend oneself at trial” and held that a defendant

does not have a right of self-representation on appeal. Martinez

v. Court of Appeal

, 528 U.S. 152, 154 (2000). The Supreme Court

reasoned that “the status of the accused defendant, who retains a

pres umption of innocence throughout the trial process, changes

dramatically when a jury returns a guilty verdict.” I d. at 162.

Furthermore, “the autonomy interests that survive a felony

conviction are less compelling than those motivating the decision

in Faretta . Yet the overriding state interest in the fair and

efficient admin istration of justice remains as strong as at the

trial level .” Id . at 163. The district court considered the

reasoning of Martinez and held that Faret ta ’s right to selfrepresentation does not extend past the guilty ve rdict to the

sentencing phase of a criminal trial. The district court was

persuaded that, assuming the constitutional basis of Faretta does

not dictate a right to self-representat ion, Davis should not be

allowed to pursue his preferred trial strategy because, as a matter

of policy, a criminal defendant should not be afforded the

opportunity to interfere with the sentencing authority’s gathering5

of information on any issue rele vant to choosing the correct

sentence. S ee F ED

. R. C RIM

. P. 32(b)(4)(providing that a presentence

investigation report “must” contain “information about the

defendant’s history and characteristics, including any prior

criminal record, financial condition, and any circumstances that,

because they affect the defenda nt’s behavior, may be helpful in

imposing sentence . . . .”).

Martinez focuses on the distinctions be tween trial and

appellate stages of a criminal proceeding: a lay appellant has no

right to be present dur ing appellate proceedings, M artinez

, 528

U.S. at 163, and the defendant, not the state, normally initiates

appellate process. I d

. at 162. Nothing in M artinez can be read to

push the ending point for the Sixth Amendment right of selfrepresentation in cr iminal proceedings back to the end of the

guilt/innocence phase of a bifurcated trial proceeding.

D. Does Faretta Extend to Capital Cases?

The district court held, in the alternative, that Davis has no

right of self-representation under Faretta

, which was a non-capital

case, because the death penalty is profoundly and funda mentally

different from other punishments. L ockett v. Ohio 438 U.S. 586,

605 (1978). Citing the Eighth Amendment requirement that the death

penalty must not be wantonly or freakishly imposed, see Furman v.

Geogia

, 408 U.S. 238, 310 (1972) (Stewart, J., concur ring), the

district court concluded that if Davis were allowe d to represent6

himself, the jury would not be provided with adequate information

with which to make a reliable sentencing decision. The district

court opinion makes a meticulous survey of jurisprudence relating

to the presentation of mitigating evidence during the sentencing

phase of capital-murder tria ls, concluding that Davis’s right to

mount his own defense in his own way must give way to the public’s

inter est in avoiding arbitrary and capricious imposition of the

death penalty. The court reasons that such interest can be

adequately served only by ap pointed counsel who presents a full

panoply of mitigating evidence to the sentencing jury.

We commend the district court’s thoughtful grappling with this

issue. However, F aretta is clear. If Davis made a knowing and

intelligent waiver of his right to counsel, he is entitled to

represent himself. “The right to defend is given directly to the

accused; for it is he who suffers the consequences if the defense

fails.” Faretta , 422 U.S. at 820.

The lang uage and spirit of the Sixth Amendment

contemplate that counsel, like the other defense tools

guaranteed by the Amendment, shall be an aid to a willing

defendant--not an organ of the State interposed between

an unwil ling defendant and his right to defend himself

personally. To thrust counsel upon the accused, against

his considered wish, thus violates the logic of the

Amendment. In such a case, counsel is not an assistant,

but a master; and the right to make a defense is stripped

of the personal character u pon which the Amendment

insists.

Id. (footnotes omitted).

The jury wil l have the benefit of whatever defense Davis7

chooses to mount, as well as any evidence the Government (charged

in this matter with seeking not the death penalty but justice)

offers. The district court itself may interpose questions to

witnesses. The Eighth Amendment prohibition against arbitrary and

capricious imposition of the death penalty does not prohibit a

jury, thus armed with information, from reaching a verdict.

Based on the foregoing, we conclude that Davis has a clear and

indisputable right to mandamus relief and no adequate alternative

to mandamus exists. See In re: American Airlines, Inc. , 972 F.2d

605, 608 (5th Cir. 1992), cert. denied sub nom. Northwest Airlines,

Inc. v. American Airlines, Inc.

, 507 U.S. 912 (1993). We grant the

petition, and th e writ is issued to remand this action for a

sentencing hearing wherein Davis will be allowed to proceed pro se

if he wishes to do so and knowingly and intelligently waives his

right to counsel. The district court may of course appoint standby counsel for Davis if such is appropriate.

Petition GRANTED, writ ISSUED, and action REMANDED.2 Fed. R. App. P. 21(b)(4)and(5) provides that when a party

petitions for mandamus, the court of appeals may invite or order

the trial-court judge to address the petition or may invite an

amicus curiae to do so; and may require additional briefing and

oral argument by the parties and amicus curiae.

3 In Len Dav is’s pro se Response to Government’s Objection to

“Hybrid” Representation, served on May 10, 2001, he said: “I do

not beg for my life, and I am not afraid to die. I have already

informed the Court that I do not intend to present a defense at the

penalty trial, and the government has filed pleadings with the

Court stating that the decis ion is so bizarre that it calls into

question my mental competence.” I d. at 2. The district court, in

its Order and Reasons filed May 16, 2001, said: “In his most recent

filing with this Court, Davis stated that he does not intend to

present a defense at the penalty phase at all.” Id. at 2-3. “In

8 DENNIS, Circuit Judge, dissenting:

With all due respect, I disagree not only with the majority’s

decision of the important res nova constitutional issue presented,

but also with its jurisdicti onal decision to issue mandamus, and

with its having done so summarily without oral argument and without

inviting an amicus curiae to advocate the interest of the people of

the United States in the fair a nd efficient administration of

justice in the imposition of federal capital punishm ent. 2 The

majority has decided, probably for the first time in a federal

death penalty case, apparently without understanding the import of

its ruling, that a convicted capital defendant has an absolute

right, under the Sixth Amendment, to waive his right to counsel and

to act as his own attorney, for the purpose of either not making a

defense or making only an ineffective defense, because he prefers

a death rather than a life sentence. 3 The government’s prosecutorthis case, Davis has persisted in his intention that the jury not

have the benefit of any mitigating evidence in the penalty phase of

his case. Most recently, he has declared that he wants nothing

done at the penalty phase on his behalf at all.

. . . Davis in

effect is appropriating to himself a judgment that only soci ety,

through the jury in this case, can properly make.” I d. p.13. The

original brief of appellant, Len Davis, filed by his counsel in

this court on June 8, 2001, states: “At various conferences and

hearings before district court Mr. Davis announced that he did not

intend to present any evidence, or participate in any aspect of the

trial, dire cted toward convincing the jury that he should not

receive the death penalty.

. . . When he remained steadfast

regarding his strategy the government filed a motion to have him

examined by a psychiatrist.

. . . [A]s the trial date . . . was

approaching, and the defendant remained adamant that he would not

defend against the death penalty, the trial court issued its ruling

that he could no longer serve as p ro se counsel.” I d. at 5-6.

“[T]he present situation [is one] where the defendant has announced

that he does not intend to present any mitigating evidence at the

penalty trial.” I d. at 9. “Mr. Davis believes that the[ ] legal

issues [he plans to raise in a motion for new trial and/or Rule

2255 motion] will of necessity have to be viewed much more closely

by the distric t and appellate courts if he is facing a death

sentence, than they would if he were facing a life sentence. While

he has no desire to die he has weighed carefully the prospects of

a death sentence agai nst spending the rest of his life in jail -

and he finds life in prison to be more onerous. Believing that

legal errors that led to his conviction will be examined more

scrupulously if he has a death sentence facing him, Mr. Davis made

the strategic decision that he does not want to put on mitigating

evidence in an effort to convince the jury that he should not die.”

Id. at 10-11. “[W]e believe that the legal strategy which he has

undertaken will likely result in his execution. Conversely we

believe that if we could mount a full mitigation defense that there

is a very good possibility we could save his life. That being so,

why are we before this Court arguing a legal position which, if

successful, would likely doom our client? The answer lies in the

Faretta decision. It is his life, not ours. ‘The right to defend

is given directly to the accused; for it i s he who suffers the

consequences if the defense fails.’ Faretta v. California

, supra at

820.” Id. at 13.

9 and the defendant’s attorney, arm in arm, persuaded the majority to

reverse the trial court and au thorize Len Davis to act pro se in

defensel ess submission to the government’s efforts to put him to10

death. No attorney was allowed to advocate the interest of the

people of the United States in seeing that the federal death

penalty is carried out only after a full and fair adversarial

proceeding.

Yet, even without the benefit of adversarial represent ation

and oral argument, which I would have preferred that we require, I

am convinced that, given the particular circumstances of this case,

the district court reached the correct result in refusing to allow

Len Davis to waive his right to counsel, to adopt a false posture

of making a defense, and to defenselessly acquiesce in his own

death sentence. I reach this conclusion on the facts of this

particular case, however, finding it unnecessary to decide whether

a capital defendant may waive his right to counsel and represent

himself during the sentencing phase under different circumstances.

Len Davis is seeking to represent himself, not in his defense but,

rather, for the purpose of rendering himse lf defenseless against

the prosecution’s efforts to impose the death penalty upon him. He

does not distrus t or lack confidence in his court-appointed

counsel. Therefore, in this particular case, Len Davis’s Sixth

Amendment right to represent himself in his defense has become so

attenuated that it is clearly outweighed by the interest of the

people of the United States in the fair and efficient

administration of justice in the imposition of f ederal capital

punishment. S ee Martinez v. Court of Appeal of California

, 528

U.S. 152, 16 3 (2000). Thus, I agree with the district court’s4 Moreover, I cannot agree with one possible interpretation of

the district court’s instructions to defense counsel at page 2 of

its order and reasons, i.e., if the instructions are interpreted as

requiring defense counsel to introduce indiscriminately all

possibly mitigative evidence or to determine the defense strategy

without any consideration of the defendant’s wishes. I do not

think that was the district court’s intention, and I add this note

simply to express my disagreement with such a reading.

11 result, although I disagree with its conclusion that, as a matter

of law, a convicted defendant can never have the right to represent

himself in the sentencing phase of a capital case. 4 If Davis were

se eking to act as his own attorney for the purpose of defending

himself against the death pe nalty, instead of acquiescing in it,

the balance of interests might favor upholding his right of selfrepresentation, particularly if he had expressed a l ack of

satisfaction or trust in his appointed counsel.

Althou gh I am not at this time prepared to adopt all of the

district court’s profoundly thoughtful reasons, I am convinced that

the trial court’s initial approach to an analysis of the present

case was correct. The district court focused first on the

underlying rationale of the Supreme court’s latest decision on

Sixth Amendment right to self-representation, Martinez

, id. , in

weighing Len Davis’s assertion of the right against the interest of

the people of the United States in the fair administration of

justice. Unlike the district court, however, the majority of this

court failed to appreciate the importance of the analytical

approach implied by M artinez ’s rationale or its elaborations on

Faretta

.5 This circuit’s precedents holding that a criminal defendant’s

right to be represented by counsel of his choice may be outweighed

by the public interest in the administration of justice are closely

analogous to the situation here regarding a defendant’s right to

self-representation. F irst, the Sixth Amendment right to counsel,

like the right of self-rep resentation, is not absolute. U nited

States v. Thier

, 801 F.2d 1463, 1471 (5 th Cir. 1986). Accordingly,

this court has held that “[t]he right of defendants in criminal

cases to retain an attorney of their choice does not outweigh the

countervailing public interest in the fair and orderly

administration of justice.” U nited Sta tes v. Salinas , 618 F.2d

1092, 1093 (5 th Cir. 1980). In United States v. Kitchin

, 592 F.2d

900, 903 (5 th Cir. 1979), the government moved to disqualify the

defendant’s attorney for a conflict of interest. The court first

noted the difficult y in the “balancing of a criminal defendant’s

right to counsel of his choice and the public’s inte rest in the

integrity of the judicial process and in a fair but vigorous

prosecution

. . . .” I d. at 903. The court then held that “[a]

defendant’s right to counsel of his choice is not absolute and must

yield to the higher interest of the effective administration of the

courts.” Id. Likewise, in Gandy v. Alabama , 569 F.2d 1318, 1323

(5 th Cir. 1978), the court held that “[t]he right to choose counsel

may not be subverted to obstruct the orderly procedure in the

courts or to interfere with the fair administration of justice.”

12 “As the Faretta opin ion recognized, the right to

self-representation is not absolute.” Martinez , 528 U.S. at 162.

“Even at the trial level, therefore, the government’s interest in

ensuring the integrity and efficiency of the trial at times

outweighs the defendant’s in terest in acting as his own lawyer.”

Id. at 162. 5 More important, the Supreme Court in M artinez held

that “[t]he status of the accused defendant, who ret ains a

presumpt ion of innocence throughout the trial process, changes

dramatically when a jury returns a guilty verdict.” I d.

Furtherm ore, the Court, after noting that “the F aretta majority

found that the right to self-representation at trial was grounded

in part in a respect for individual autonomy[,]” id. at 160, added13

that “the autonomy interests that survive a felony conviction are

less compelling than those motivating the decision in F aretta .”

Id. at 163. Yet, the Court said, the “overriding state interest in

the fair and efficient administration of justice remains”

constantly strong throughout the trial and appeal. Id.

Thus, in holding that a convicted criminal defendant does not

have the federal constitutional right to represent himself on

direct appeal in Martinez

, the Supreme Court’s underlying rationale

was that the Faretta balance between the innocent in dividual’s

autonomy interest and the State’s interest in the fair and

efficient ad ministration of justice begins to be drastically

al tered in favor of the latter when the defendant has been found

guilty beyond a reasonable doubt. Applying the same rationale to

the present case, I conclude that Len Davis’s autonomy interests,

which began to wane upon his c onviction, have been further

diminished by the purpose for which seek s to act as his own

attorney. It bears repeating that his purpose is neither to

disengage from unreliable or incompetent counsel nor to make a real

adversarial criminal defense, but to ensure receiving a death

sentence by offering an intentionally ineffective defense or none

at all. Len Davis’s claim that his death penalty will enhance the

poignancy of his pos t-trial remedies rings hollow as a criminal

trial defense strategy. Ultimately, he admits that it is his

preference for a death sentence over a life term that motivates his

avoidance of a penalty trial defense in favor of a long-shot chance14

at being freed on appeal. In any event, Len Davis has no intention

of making a penalty trial defense but appears determined to

acquiesce in being sentenced to death.

The right to self-representation, based on the Sixth Amendment

guarantee of access to an effective means of defense, surely tapers

to little more than an illusion and becomes completely outweighed

by the national public interest in fair and efficient

administration of justice, when the convicted defendant seeks to

use it not to make a defense, or to disassociate from untrustworthy

or unsatisfactory counsel, but to render himself defenseless

against the death penalty. Neither the holding nor the reasoning

in Faretta requires the recognition of a constitutional right to

self-representation by a convicted person who asserts it only for

the purpose of choosing the death penalty. C f. Martinez

, 528 U.S.

at 163. In requiring Davis, under these circumstances, to accept

the continued representation by an appointed counsel whom he trusts

and believes can and will effectively make a defense for him in the

penalty hearing, the district court did not deprive him of a

constitutional right. Cf. id. at 164.

The majority’s argument that the present case falls squarely

within the holding of Faretta is riddled with flaws. F aretta

asserted his right of self-representation “[w]ell before the date

of trial,” not after his conviction. F aretta v. California

, 422

U.S. 806, 807 (1975). Faretta voluntarily and intelligently waived

his right to counsel and sought to conduct his own defense because15

he believed the public defender was too “loaded down” to represent

him effectively. I d. He did not assert the right unintelligently

so as to ensure that he received the criminal punishment the state

sought to impose.

In Faretta the Court made clear that the Sixth Amendment does

not guarantee Len Davis or any defendant the right to engage in a

sham self-representation for the purpose of abandoning his

adversarial defense. On the contrary, the Court held that “the

Amendment constitutionalizes the right in an adversarial criminal

trial to make a defense as we know it,” id. 818, and that that

right does not “arise[] mechanically from a defendant’s power to

waive the right of assistance of counsel.” I d. at 820.

Repeatedly, the Faretta Court explained that the right guaranteed

is not the mere form of representation or self-representation for

any purpose imaginable; the right constitutionalized by the Sixth

Amendment is “the absolute and primary right to conduct one’s own

defense in propria persona.” I d. at 816 (emphasis added).

Accordingly, the Court described the right as “the right of the

accused personally to manage and conduct his own defense in a

criminal case,” id. at 817, and as the “basic right to defend

himself if he truly wants to do so.” I d. S ee also id. at 819 (The

Sixth Amendment “grants to the accused personally the right to make

his defense.”); id. at 819-820 (The right is “to make one’s defense

personally.”); id. (“The right to defend is given directly to the

accused.”); id. (describing the criminal defendant’s “right to16

defend himself personally”); id. (“[T]he right to make a defense is

[not] stripped of the personal character upon which the Amendment

insi sts.”); i d. at 830 (discussing “the primary right of the

accused to defend himself”); id. at 832 (same); id. at 835

(same)(internal quotations and citations omitted).

Over and over, the Court makes clear in Faretta what the

majority cannot see: the right is not to make a non-adversary nondefense under the guise of a mere formalistic or nominal selfrepresentation; the right is to make a genuine adversary defense.

There is no constitutional right to mismanage, sabotage, or abandon

a defense. The right is to act as one’s lawyer, like an officer of

the court, to put on a true adversarial defense, not to flout the

dignity of t he courts and the Constitution by betraying one’s

pretended cause.

Consequent ly, for all of the foregoing reasons, Len Davis

failed to establish the criteria for the issuance of mandamus. S ee

In re American Airlines

, 972 F.2d 605 (5 th Cir. 1992)(“The standards

[for issuance of mandamus] are well e stablished: [P]etitioners

must show that they lack adequate alternative means to obtain the

relief they seek

. . . and carry the burden of showing that [their]

right to issuance of the writ is clear and indisputable.”)(quoting

Mallard v. United States Dist. Ct. for the S. Dist. of Iowa , 490

U.S. 296, 309 (1989)(internal quotations and citations omitted)).

Because of the holdings and principles established by Martinez

, its

further explanation of Faretta , and F aretta itself, Len Davis’s17

right to issuance of the writ is not clear and indis putable. On

the contrary, it seems clear a nd indisputable that the convicted

Len Davis has no right of self representation because he seeks not

to use it for its constitutional purpose but to ab use it for the

purpose of seeking his own death. And, even if we were to assume

arguendo that he has been prejudiced by an erroneous ruling of the

district court, Len Davis has an adequate alternative means to

obtain relief by renewing his claim of error on appeal. The

majority concludes that Len Davis has carried both burdens but does

not convincingly show that the right to mandamus i n these

unprecedented circumstan ces is “clear and indisputable,” and the

majority does not even attempt to explain why Len Davis will not be

able to obtain relief on appeal if the district court’s ruling

amounts to constitutional, reversible error.