     Case: 15-50239   Document: 00513492573        Page: 1   Date Filed: 05/04/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                    No. 15-50239                  United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
UNITED STATES OF AMERICA,                                             May 4, 2016
                                                                    Lyle W. Cayce
             Plaintiff - Appellee                                        Clerk

v.

DAVID RODRIGUEZ,

             Defendant - Appellant




                Appeals from the United States District Court
                      for the Western District of Texas


Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges.
EDITH BROWN CLEMENT, Circuit Judge:
      After a jury trial, David Rodriguez was convicted of conspiracy to
manufacture methamphetamine and conspiracy to possess and distribute
pseudoephedrine. He appealed. Although he was initially represented by
counsel, he filed a request to proceed pro se, which was granted by this court.
On direct appeal, we affirmed the district court’s judgment. See United States
v. Rodriguez, 521 F. App’x 313 (5th Cir.), cert. denied, 134 S. Ct. 126 (2013).
      Rodriguez subsequently filed a pro se § 2255 motion, arguing that he did
not intelligently waive his right to appellate counsel and seeking a new direct
appeal. Adopting the recommendation of the magistrate judge, the district
court granted the motion. The district court concluded that, despite
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                                        No. 15-50239
Rodriguez’s unequivocal request to proceed pro se, he had not knowingly
waived his right to counsel on appeal. The district court granted Rodriguez a
new appeal. 1 We vacate the district court’s § 2255 judgment and dismiss this
second direct appeal.
       A criminal defendant is not entitled to two appeals. United States v. Arlt,
567 F.2d 1295, 1297 (5th Cir. 1978) (per curiam); see United States v.
McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (“Section 2255 may not be used to
secure a second direct appeal.”). 2 In granting Rodriguez’s § 2255 motion and
providing him a new appeal, the district court concluded that this court erred
in allowing him to proceed pro se. 3 But the magistrate judge’s report and
recommendation, adopted by the district court, failed to identify any
jurisdiction or authority for its review and abrogation of our preceding order,
which found that Rodriguez “clearly and unequivocally waived his right to
appellate counsel.” 4




       1 Notably, on this second appeal, Rodriguez has filed numerous pro se letters raising
issues for the court’s consideration. There is, however, no constitutional right to hybrid
representation on appeal, and we do not consider his pro se arguments. Myers v. Johnson, 76
F.3d 1330, 1335 (5th Cir. 1996).
       2 This case is unlike Mack v. Smith, 659 F.2d 23 (5th Cir. 1981), which granted a

defendant leave to file an out-of-time appeal. In Mack, we dismissed the initial appeal as
untimely, due to the ineffectiveness of counsel, and without a ruling on the merits. Id. at 25;
see United States v. West, 240 U.S. 456, 459 (5th Cir. 2001). Here, we decided the question at
issue—the propriety of self-representation on appeal—and the district court is not free to
reverse that decision under § 2255.
       3 The district court found that we “must hold a Faretta hearing” to determine whether

a defendant’s waiver is knowing and voluntary. Although Faretta hearings are required
before waiver of counsel at trial, “[t]he Supreme Court has never held that waivers of counsel
at any stage of the proceedings other than trial require such a give-and-take between the
accused and someone trying to educate him about counsel’s benefits.” Speights v. Frank, 361
F.3d 962, 964–65 (7th Cir. 2004) (“Just as a simple consent to proceed without counsel suffices
during custodial interrogation, so a straightforward assent is enough on appeal.”); see Jean-
Paul v. Douma, 809 F.3d 354, 359 (7th Cir. 2015) (explaining that waiver of counsel on appeal
requires only “straightforward assent”).
       4 In his first direct appeal, Rodriguez filed, with this court, a lengthy motion to dismiss

his appointed counsel and proceed pro se. His appointed counsel also filed a motion to be
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                                    No. 15-50239
      An error in the reasoning of this court can only be corrected by
application to this court in the form of a motion to recall the mandate or a
petition for rehearing, or by writ of certiorari to the Supreme Court. See
Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000) (“An individual seeking
to avoid the effects of an appellate court’s prior decision may bring to that court
a motion to recall its mandate.”); United States v. Hughes, 41 F. App’x 276, 279
(10th Cir. 2002) (finding that the district court correctly ruled that righting
alleged errors in the appellate court’s opinion on direct appeal “is not the
province of a § 2255 motion” and explaining that “such matters must be
pursued via a motion for rehearing and/or via a petition for certiorari to the
Supreme Court”). In his § 2255 motion, Rodriguez claimed that his waiver of
appellate counsel was neither knowing nor voluntary. But we “decided this
issue . . . on direct appeal when his conviction was affirmed. It may not be
resurrected and urged anew.” McCollom, 664 F.2d at 59; see United States v.
Goudeau, 512 F. App’x 390, 393 (5th Cir. 2013) (“In order for the law-of-the-
case doctrine to apply, the issue need not have been explicitly decided; the
doctrine also applies to those issues decided by necessary implication.”
(internal quotation marks omitted)). Neither the district court nor Rodriguez
point to any authority that would authorize the district court to grant his
motion based on an asserted error in our prior determination that Rodriguez
could proceed pro se on appeal.
        Because we hold that the district court improperly granted Rodriguez’s
§ 2255 motion, we VACATE the judgment and DISMISS this appeal.




dismissed and noted that Rodriguez had made a “clear and informed decision to proceed pro
se.”
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