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

                                                 FILED
                                                                            March 3, 2009
                                       No. 06-30657
                                                                       Charles R. Fulbruge III
                                                                               Clerk
CALVIN GROSS
                                                          Petitioner - Appellant
v.

LYNN COOPER
                                                          Respondent - Appellee


                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                             USDC No. 3:05-CV-01052


Before GARWOOD, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant Calvin Gross was indicted for one count of possession with the
intent to distribute marijuana and one count of distribution of cocaine in
Louisiana state court. In pre-trial hearings relating to both counts, Gross
explicitly rejected representation and agreed to self-representation in his two
separate trials on the two counts. The relevant colloquies in respect to his self-
representation with the state court judge are as follows:
              [COURT]:     You desire not to be represented by
                           the Public Defender; is that correct?
              [DEFENDANT]: Yes.
              [COURT]:     You desire to represent yourself?
              [DEFENDANT]: Yes.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
           [COURT]:         So, you understand that you have
                            the right to counsel.             You
                            understand, under our Constitution,
                            you have a right to legal counsel and
                            I have appointed for you, the Public
                            Defender, because you did not have
                            the ability to pay for any attorney.
           [DEFENDANT]:     Yes.
           [COURT]:         And you are desiring, at this time, to
                            release them from any further
                            obligation on your case?
           [DEFENDANT]:     Yes.
           [COURT]:         And you are waiving the right to
                            counsel; is that correct?
           [DEFENDANT]:     To the Public Defender.
           [COURT]:         Well, you want an attorney, you just
                            don’t want them, is that what you’re
                            telling me?
           [DEFENDANT]:     Yes.
           [COURT]:         Then, you’ll need to file a motion
                            because we are not going to do it on
                            just no hearing right here. So, you
                            file any motion you need to file and
                            we’ll get you back in here, because
                            you need to allege reasons why they
                            need to be out, because I’m not going
                            to just let them out. It doesn’t work
                            that way.
           [DEFENDANT]:     I don’t need them, I’ll just represent
                            myself.
           [COURT]:         Okay, well, then, you will need to file
                            whatever motions you desire.

At the second pre-trial hearing, the district court then had the following
exchange with Gross:
           [COURT]:     Alright,   Mr.    Gross,    it’s my
                        understanding that you do not desire
                        the Public Defender’s Office to
                        represent you; is that correct?
           [DEFENDANT]: That’s correct.


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            [COURT]:     Why is that?
            [DEFENDANT]: He’s poor representation. I, I mean,
                         I sent you the Motion you told me to
                         send to you, I sent it to you.
            [COURT]:     And how does that answer the
                         question of why you don’t want them
                         to represent you?
            [DEFENDANT]: Your Honor, we about to go to trial.
                         Ask him what he know about my
                         case besides what the police report
                         says.
            [COURT]:     No, no, I have put you under oath.
                         I’m asking you. I need, for the record,
                         for you to tell me why you don’t want
                         him to represent you, that’s all.
            [DEFENDANT]: Well, this man never accept a phone
                         call from me, you understand.
                         Never, never, y’all ain’t know
                         nothing about what’s happening, you
                         know what I’m saying. Just tell me,
                         take thirty years, take forty -- no, I
                         can’t. I mean, he supposed to be my
                         lawyer.
            [COURT]:     Okay, here are your choices. The
                         Constitution allows you an attorney.
                         I have appointed you one. You don’t
                         get to pick and choose. If you can’t
                         afford one, I appoint you one.
                         So, here are your choices and it
                         doesn’t matter to me. You can have
                         the Public Defender’s Office or you
                         can represent yourself.
            [COURT]:     Which would you like?
            [DEFENDANT]: I don’t need no help.
            [COURT]:     You don’t need help?
                         Okay. Let the Public Defender be relieved
                         of any further obligation. Let Mr. Gross be
                         his attorney.

Defense counsel informed the court that he had advised Gross of the penalties
for the charges that he was facing and that he could be facing life in prison as an

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habitual offender. Counsel also stated to the court that Gross had refused to sign
a document containing this advice concerning the charges. Gross, proceeding pro
se, was subsequently found guilty by a jury on both counts in two separate trials.
He was sentenced to consecutive sentences of 25 years and 30 years for his
marijuana and cocaine convictions respectively. On direct appeal, Gross argued
that the trial court erred in denying his right to counsel and ordering him to
proceed to trial without a valid waiver of his right to counsel. The Louisiana
Court of Appeals for the First Circuit affirmed both convictions and sentences
in 2-1 decisions. Judge Downing dissented from both decisions. He concluded
in both decisions that
      [t]he record should contain some indication that the trial court tried
      to assess the defendant’s literacy, competency, understanding, and
      volition before he accepted the waiver of counsel. . . . Other than
      volition, none of these indications are in the instant record, nor is
      there any showing the trial court adequately informed the
      defendant of the dangers and disadvantages of representing himself.

Gross filed writs of certiorari for both convictions with the Louisiana Supreme
Court. The Louisiana Supreme Court denied the petitions by votes of 4-3.
Justice Johnson of the Louisiana Supreme Court assigned reasons in her dissent
from denial of the writs. Relying on Faretta v. California, 422 U.S. 806 (1975),
Justice Johnson stated that
      a review of the transcript makes it abundantly clear that the trial
      court failed to ascertain whether the defendant’s waiver of his right
      to counsel was made intelligently. There is no indication that the
      trial court made an attempt to assess the defendant’s literacy,
      competency, understanding, and volition prior to accepting the
      waiver of right to counsel. Moreover, the trial court made no
      attempt to inform the defendant of the dangers and disadvantages
      of self-representation.
Louisiana v. Gross, 868 So. 2d 20, 21 (La. 2004) (Johnson, J., dissenting from
denial of the writ) (internal quotation marks omitted).       The United States



                                        4
Supreme Court denied Gross’ petitions for writs of certiorari on January 10,
2005. Gross v. Louisiana, 543 U.S. 1056 (2005).
      Gross filed a 28 U.S.C. § 2254 application raising the same arguments
denied on direct appeal for both convictions. The magistrate judge recommended
that his application be denied. The district court adopted the magistrate judge’s
recommendations and also denied his application for a COA. Gross filed an
appeal. Without considering the merits, we remanded the case back to the
district court “for the limited purpose of determining whether its dismissal
involved Gross’s cocaine conviction or his marijuana conviction.” The magistrate
judge clarified that the denial of the application related to both convictions. The
district court adopted the magistrate judge’s recommendation and Gross timely
appealed. We then granted Gross a COA on the issue of “whether the district
court erred by allowing Gross to represent himself at trial without first obtaining
his knowing and intelligent waiver of his right to counsel” as it relates to both
convictions.
                            STANDARD OF REVIEW
      Gross’ application for section 2254 relief is governed by the Antiterrorism
and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, a federal
habeas court may not grant relief to a prisoner serving a state sentence with
respect to any claim adjudicated on the merits in a state court unless the state
court ruling “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). A state decision
is “contrary to” clearly established federal law if the state court applies a rule
that is “substantially different from” or “contradicts” governing Supreme Court
precedent, or if the state court reaches a decision opposite that reached by the
Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor,
529 U.S. 362, 405 (2000).




                                        5
      A decision involves an “unreasonable application” of federal law if the state
court “correctly identifies the governing legal rule but applies it unreasonably
to the facts of a particular prisoner’s case.” Id. at 407-08. An “unreasonable
application” of federal law must be something more than a mere incorrect
application. Id. at 410-11 (“[A] federal habeas court may not issue the writ
simply because that court concludes in its independent judgment that the
relevant state-court decision applied clearly established federal law erroneously
or incorrectly. Rather, that application must also be unreasonable.”). The state
court’s findings of fact are entitled to a presumption of correctness that can be
rebutted only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
                                  ANALYSIS
      In Faretta, the Supreme Court considered “whether a defendant in a state
criminal trial has a constitutional right to proceed without counsel when he
voluntarily and intelligently elects to do so” under the Sixth and Fourteenth
Amendments. 422 U.S. at 807. While every defendant has a right to proceed
without a lawyer, the choice to proceed must be made “voluntarily and
intelligently.” Id. Faretta emphasized that the defendant must understand that
he is not just relinquishing the right to counsel but also the specific benefits
associated with representation by counsel. Id. at 835. “When an accused
manages his own defense, he relinquishes, as a purely factual matter, many of
the traditional benefits associated with the right to counsel. For this reason, in
order to represent himself, the accused must ‘knowingly and intelligently’ forgo
those relinquished benefits.” Id. In order to ensure that the choice is voluntary
and intelligent, the Court noted that “[a]lthough a defendant need not himself
have the skill and experience of a lawyer in order competently and intelligently
to choose self-representation, he should be made aware of the dangers and
disadvantages of self-representation, so that the record will establish that ‘he
knows what he is doing and his choice is made with eyes open.’” Id. (quoting
Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)). Thus, a


                                        6
defendant must not only voluntarily give up the right to representation but must
do so after understanding the dangers and disadvantages of self-representation.
See Moran v. Burbine, 475 U.S. 412, 421 (1986) (noting that a voluntary,
knowing and intelligent waiver “must have been made with a full awareness of
both the nature of the right being abandoned and the consequences of the
decision to abandon it”).
      In subsequent cases, the Court has especially emphasized the need to
convey dangers of self-representation before a criminal defendant forgoes
counsel at trial. In Patterson v. Illinois, 487 U.S. 285, 298 (1988), the Court
noted that “recognizing the enormous importance and role that an attorney plays
at a criminal trial, we have imposed the most rigorous restrictions on the
information that must be conveyed to a defendant, and the procedures that must
be observed, before permitting him to waive his right to counsel at trial.”
(emphasis added). The Court in Iowa v. Tovar stated that “[a]s to waiver of trial
counsel, we have said that before a defendant may be allowed to proceed pro se,
he must be warned specifically of the hazards ahead.” 541 U.S. 77, 88-89 (2004)
(emphasis added). “Warnings of the pitfalls of proceeding to trial without
counsel, [the Court] therefore said, must be ‘rigorous[ly]’ conveyed.” Id. at 89
(quoting Patterson, 487 U.S. at 298).
      Consistent with the Court’s strong admonition that the trial court must
make sure the defendant is aware of the consequences of his waiver before
accepting the waiver, we read Faretta to require the trial court to inquire and
determine if the defendant intelligently waived his right to counsel.
      Lest there be a case in which a defendant clearly asserts the right
      to defend pro se (so that denial of the right would be error) without
      clearly waiving the right to counsel (so that there remains some
      question whether the waiver was knowing and intelligent), a trial
      judge should engage in a dialogue with such a defendant, explaining
      to him the consequences of defending pro se. Faretta admonishes
      that the defendant must be “made aware of the (advantages) and
      disadvantages of self-representation.”


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Chapman v. United States, 553 F.2d 886, 892 (5th Cir. 1977) (quoting Faretta,
422 U.S. at 835). In United States v. Jones, we found the district court failed to
abide by Faretta when it only warned the defendant generally of the dangers of
self-representation and we therefore vacated the conviction. 421 F.3d 359, 364-
65 (5th Cir. 2005). Here, compared with Jones, this case presents a starker
failure to abide by Faretta – the trial court never warned the defendant of the
dangers of self-representation at all.1
       Furthermore, we have stated that
       Faretta’s progeny and related cases flesh-out the factors which are
       to be weighed [before accepting a waiver of counsel]. The court must
       consider the defendant’s age and education . . . and other
       background, experience, and conduct. . . . The court must ensure
       that the waiver is not the result of coercion or mistreatment of the
       defendant . . . and must be satisfied that the accused understands
       the nature of the charges, the consequences of the proceedings, and
       the practical meaning of the right he is waiving.

McQueen v. Blackburn, 755 F.2d 1174, 1177 (5th Cir. 1985) (emphasis added).
Here, the trial judge only assured itself that the waiver was voluntary but did
not consider any background factors or engage in any dialogue to ascertain the
defendant’s awareness of the consequences or practical meaning of waiving
representation. Again, the trial court clearly did not abide by its obligations
under Faretta, because it did not inquire at all into the defendant’s background
before accepting his waiver of trial counsel.
       Finally, for waivers of constitutional rights generally, “[i]t has been
pointed out that courts indulge every reasonable presumption against waiver of



       1
         We explicitly adopted and reproduced the relevant section of The Benchbook for
Federal Judges (“The Benchbook”) as “a guide for questions the judge can ask to convey the
disadvantages the defendant will likely suffer if he proceeds pro se.” Jones, 421 F.3d at 363-64
& n.3. The relevant section of The Benchbook can also be used as an instructive guide for state
court judges in respect to their identical constitutional obligations under Faretta. We recognize
that sometimes less thorough warnings have also been approved, but the trial judge in this
case clearly fell below what is required by Faretta, because he conveyed little, if any, of the
information recommended by The Benchbook. See id.

                                               8
fundamental constitutional rights and that we do not presume acquiescence in
the loss of fundamental rights.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938)
(internal quotation marks omitted). “For that reason, it is the State that has the
burden of establishing a valid waiver. . . . Doubts must be resolved in favor of
protecting the constitutional claim.” Michigan v. Jackson, 475 U.S. 625, 633
(1986).
      The Supreme Court in Tovar and Patterson specifically emphasized the
importance of conveying Faretta warnings “rigorously” for defendants requesting
to proceed pro se at trial. See Iowa, 541 U.S. at 89; Patterson, 487 U.S. at 298.
Faretta also requires the trial court to evaluate the background of the defendant
before accepting a waiver of counsel. McQueen, 755 F.2d at 1177. While this
case would clearly warrant a vacatur of a conviction on direct review, it is a
much closer case given our deference to state courts under AEDPA.
Nevertheless, the trial court plainly did not warn Gross about the dangers of
self-representation nor did it evaluate the defendant’s background. Based on: (1)
the Supreme Court’s plain and clearly-established admonitions that the trial
court rigorously warn the pro se defendant about the disadvantages of self-
representation at trial and to inquire into the defendant’s background before
accepting his waiver of counsel; (2) the trial court’s complete failure to warn
Gross in respect to the dangers of self-representation at trial and its complete
failure to inquire into Gross’ background at all before accepting his waiver of
counsel; and (3) the general presumptions against finding a valid waiver of
constitutional rights, we conclude that the state’s decision to find a valid waiver
of counsel in this case was an “unreasonable application” of federal law.
      For these reasons, we now order the district court to grant conditional
habeas relief. We REVERSE the district court’s judgment denying habeas relief
and REMAND this case to that court with instructions to order the State of
Louisiana to either give Calvin Gross a new trial or release him from custody
within 180 days of the date of the district court’s order on remand.


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