     Case: 16-30134   Document: 00514098880   Page: 1   Date Filed: 08/02/2017




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                              No. 16-30134                             FILED
                            Summary Calendar                      August 2, 2017
                                                                  Lyle W. Cayce
                                                                       Clerk
BENJAMIN F. WRIGHT,

                                         Petitioner-Appellee

v.

SANDY MCCAIN, WARDEN, RAYMOND LABORDE CORRECTIONAL
CENTER,

                                         Respondent-Appellant

c/w No. 16-30874

BENJAMIN F. WRIGHT,

                                         Petitioner-Appellant

v.

SANDY MCCAIN, WARDEN, RAYMOND LABORDE CORRECTIONAL
CENTER,

                                         Respondent-Appellee


                Appeals from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 5:12-CV-2813
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                                    No. 16-30134
                                Cons. w/ No. 16-30874

Before PRADO, HAYNES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Benjamin F. Wright, Louisiana prisoner # 321564, filed a 28 U.S.C.
§ 2254 petition challenging the validity of his conviction on 23 counts of
possession of child pornography and his sentence, which totaled 40 years.
Although Wright challenged his convictions on three different grounds, the
district court found that only his claim that he had been denied his Sixth
Amendment right to self-representation merited relief.                The district court
conditionally granted Wright’s § 2254 petition, and the respondent successfully
moved for a stay of relief. In appeal No. 16-30134, respondent challenges the
conditional grant of relief, and Wright moves to have his appeal expedited. In
appeal No. 16-30874, Wright seeks a certificate of appealability (COA) to
challenge the district court’s denial of his Federal Rule of Civil Procedure 60(b)
motion seeking relief from the district court’s grant of the respondent’s motion
to stay in the underlying § 2254 proceeding. Because these appeals are closely
related, we CONSOLIDATE these two cases sua sponte. See FED. R. APP. P.
3(b)(2).
       We will first address the issues raised in appeal No. 16-30134. Although
both state law and federal law provide a right of self-representation to Wright,
in a § 2254 proceeding, a state prisoner may only challenge the validity of his
continued custody on the ground that it is the result of a violation of “the
Constitution or laws or treaties of the United States.”                         § 2254(a).
“[A] defendant in a state criminal trial has a right under the sixth and
fourteenth amendments to the United States Constitution to proceed without


       * 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.



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                                   No. 16-30134
                               Cons. w/ No. 16-30874

counsel and represent himself when he elects to do so” in a clear, unequivocal,
knowing, and intelligent manner. Burton v. Collins, 937 F.2d 131, 133 (5th
Cir. 1991); see Faretta v. California, 422 U.S. 806, 807, 835-36 (1975). Thus,
the focus of this federal habeas proceeding is whether Wright’s federal
constitutional right to represent himself in the trial court was violated.
         Wright had charges in several different cases all pending before the same
Louisiana trial court judge. The convictions being challenged here arose in
Cause No. 69,946. On September 30, 2005, Wright appeared before the trial
court in Cause No. 69,945. His counsel was allowed to withdraw in that
matter, and reference was made by counsel to the charges pending under other
docket numbers. When Wright was asked if he had anything to say about the
motion to withdraw, he responded, “No, sir. I’m going to defend my own self
in my other cases though.” After allowing counsel to withdraw, the trial court
appointed the Indigent Defender’s Office (IDO) to represent Wright in all of his
pending cases, and it mentioned Cause No. 69,946 specifically. The trial court
judge told Wright that he would deal with Wright’s request to represent
himself at a later date. The docket sheet in Cause No. 69,946 contains a minute
entry for that hearing. In rejecting Wright’s claim that he was denied his right
to self-representation, the state habeas court found that (1) the hearing
involved only the matter in Cause No. 69,945; (2) the matter in Cause
No. 69,946 was never addressed; and (3) the trial court specifically advised
Wright that his request to proceed pro se “would have to be asserted at a later
date.”
         Wright appeared before the trial court again on June 26, 2006, for a
hearing on his motion to quash the charges on speedy-trial grounds.             In
discussing that motion and the various continuances that had been granted on
motions made by Wright’s attorneys, Wright reminded the trial court that he


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had requested at the September 30, 2005, hearing to represent himself on “the
rest of the charges.” After denying the motion to quash, the trial court allowed
the IDO to withdraw from representing Wright due to a conflict of interest. It
then appointed another attorney to represent Wright. Wright reiterated that
he had already stated in September 2005 that he did not want an attorney. A
colloquy then took place in which the trial court judge stated that he would not
allow Wright to represent himself because it was not what was best for Wright.
Indeed, he expressly stated: “I’m not going to let you represent yourself.”
       That same judge decided the state habeas case. In denying Wright’s
claim, the state habeas court found that Wright’s statements at the June 2006
hearing, when taken in context, were merely meant to explain the reasons
behind the various continuances that had been granted. 1
       The determination of whether a defendant has expressly and
unequivocally, or constructively, invoked his right to self-representation is
solely dependent on the particular facts and circumstances of the case, and we
review that issue to determine whether the state court decision “was based on
an unreasonable determination of the facts in light of the evidence presented
in the State court proceeding.” § 2254(d)(2); see United States v. Long, 597 F.3d
720, 723-24 (5th Cir. 2010); Randolph v. Cain, 412 F. App’x 654, 657 (5th Cir.
2010). In doing so, we look through to the last reasoned state court decision to
address the claim.        See Brumfield v. Cain, 135 S. Ct. 2269, 2276 (2015);



       1  On the direct appeal of his convictions, the state court rejected his claims of lack of
self-representation because of the absence of any evidence that he had requested same. State
v. Wright, 57 So. 3d 465, 475-76 (La. Ct. App.), writ denied, 68 So. 3d 520 (La. 2011). As the
federal district court explained, however, the lack of record evidence turned out to be due to
the repeated thwarting of Wright’s efforts to obtain those transcripts. He finally succeeded
in obtaining those transcripts before his post-conviction application, and the State (wisely)
does not assert a procedural bar based upon the original appellate ruling.



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                                 No. 16-30134
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Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir. 2012). In this case that decision
is the one issued by the trial court in ruling on Wright’s state application for
postconviction relief. The federal district court reviewing this decision found
that relief was warranted under § 2254(d)(2). “We review the district court’s
legal conclusions de novo and its factual findings for clear error.” Clark v.
Thaler, 673 F.3d 410, 417 (5th Cir. 2012).
      Having reviewed the record and the state habeas court’s reasons for
rejecting Wright’s claims, we agree with the district court that the state habeas
court’s decision “was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” § 2254(d)(2).
Wright clearly and unequivocally expressed his intent to proceed pro se in the
trial court, and the record reveals that the trial court was aware of that intent.
Instead of conducting a hearing to ensure that Wright’s request to represent
himself was knowing and intelligent, the trial court denied the request in an
effort to protect Wright’s best interests, and it appointed counsel that Wright
did not want. This, the trial court was not allowed to do. See Faretta, 422 U.S.
at 835-36.
      The respondent argues that Wright acquiesced to the appointment of
counsel throughout the trial. Because the state habeas court had no cause to
consider this argument, the deferential standard of § 2254(d) does not apply.
Instead, in considering the district court’s implicit rejection of this argument,
we will review the district court’s factual findings for clear error and its legal
conclusions de novo. Hatten v. Quarterman, 570 F.3d 595, 599-600 (5th Cir.
2009). In an unpublished case where there was a summary dismissal of a
motion to proceed pro se, we rejected a similar argument. See United States v.
Ramirez-Perez, 132 F. App’x 558, 559 (5th Cir. 2005). Additionally, the record
reveals that continuing to move to proceed pro se would have been futile. This


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                                 No. 16-30134
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court does not require attorneys to make futile objections or motions,
particularly given the judge’s statement that he was not going to let Wright
represent himself. See Koch v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990). Since
counsel is held to a higher standard than a pro se litigant, “it would be rather
peculiar to treat a trained attorney’s error more leniently than” that of a pro
se litigant. See United States v. Riggs, 314 F.3d 796, 799 (5th Cir. 2002). Thus,
although it is true that, once a defendant has invoked his right to self-
representation, he may waive that right “through subsequent conduct
indicating an abandonment of the request,” Long, 597 F.3d at 724, under the
particular facts of this case, Wright’s failure to renew his request to proceed
pro se during trial does not reasonably suggest that he abandoned his prior
request to proceed pro se, see Batchelor, 682 F.3d at 406.
      Otherwise, the respondent correctly asserts that a court may appoint
standby counsel without violating a defendant’s Sixth Amendment rights. See
Faretta, 422 U.S. at 834 n.46. That assertion is irrelevant here, however,
where there was no appointment of standby counsel. Finally, the respondent
asserts that because the trial court’s appointment of counsel had no impact on
the jury’s verdict, it amounted to harmless error. However, the violation of the
right to self-representation is not subject to harmless error analysis, United
States v. Weast, 811 F.3d 743, 748 (5th Cir.), cert. denied, 137 S. Ct. 126 (2016),
and “will always invalidate the conviction,” Sullivan v. Louisiana, 508 U.S.
275, 279 (1993).     In light of the foregoing, the district court’s judgment
conditionally granting habeas relief to Wright is AFFIRMED. Wright’s motion
to expedite appeal No. 16-30134 is DENIED as moot.
      In appeal No. 16-30874, Wright contends that the district court erred in
granting the motion to stay his release because the district court relied in part
on a factual mistake regarding the length of his sentence. Wright does not


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                                No. 16-30134
                            Cons. w/ No. 16-30874

need a COA to challenge the non-merits issue of the stay.         See Young v.
Stephens, 795 F.3d 484, 494 (5th Cir. 2015), as revised (July 30, 2015),
cert. denied, 136 S. Ct. 1453 (2016), reh’g denied, 136 S. Ct. 1840 (2016).
Accordingly, his motion for a COA is DENIED as unnecessary.
      Wright acknowledges his resentencing on one count of conviction to 20
years of imprisonment, and the state appellate court’s judgment shows that
the trial court imposed the 20-year prison term on resentencing to run
consecutively with “any other sentence” Wright was serving. State v. Wright,
997 So. 2d 133, 135 (La. Ct. App. 2008). Wright was serving consecutive terms
of 10 years, or a total of 20 years, on the remaining counts of conviction.
Wright, 57 So. 3d at 468. Because the district court correctly stated the length
of his sentence in granting the State’s motion to stay pending appeal, Wright
has not shown that the district court abused its discretion in denying his Rule
60(b) motion. See FED. R. CIV. P. 60(b); Seven Elves, Inc. v. Eskenazi, 635 F.2d
396, 402 (5th Cir. 1981). The judgment of the district court denying Wright’s
Rule 60(b) motion is AFFIRMED.




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