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                                                          [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                             No. 15-12849
                         Non-Argument Calendar
                       ________________________

               D.C. Docket No. 8:14-cr-00406-EAK-TGW-1



UNITED STATES OF AMERICA,

                                                            Plaintiff - Appellee,

                                   versus

CARLTON HAMMONDS,

                                                         Defendant - Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Middle District of Florida
                      ________________________

                             (August 2, 2019)

Before TJOFLAT, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      This criminal appeal may ultimately require us to decide whether the

defendant’s guilty plea was voluntary. At the outset, however, we face a

preliminary and more fundamental question: whether the defendant has waived his

constitutional right to appellate counsel. Because we have a duty to establish the

fact of waiver from the record, and because the record leaves us unconvinced that

the defendant has clearly and unequivocally waived his right to counsel, we

remand this case to the District Court for determination of waiver in the first

instance.

                                          I.

      Carlton Hammonds entered into a plea agreement with the Government. In

exchange for Hammonds pleading guilty to a drug conspiracy and waiving certain

rights to appeal, the Government dismissed other charges that were pending

against him. The District Court entered judgment pursuant to that agreement and

imposed a sentence. Hammonds timely appealed the judgment, asserting that his

plea was involuntary. He also indicated that he retained private counsel to

represent him only through sentencing and that he was indigent. As such, he

requested appointment of appellate counsel.

      This Court notified both Hammonds and his trial counsel that Hammonds

had failed to pay the docketing and filing sees or to seek leave (either from the

District Court or from this Court) to proceed in forma pauperis on appeal. See 28



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U.S.C. § 1915 (2018). We further notified them that unless Hammonds took either

course of action within fourteen days, the Clerk would dismiss Hammonds’s

appeal without further notice. See 11th Cir. R. 41-4. Hammonds took no action,

and we dismissed his appeal accordingly.

      About a year and a half later, Hammonds moved to reinstate his appeal, and

the Clerk granted his motion. Hammonds’s counsel, who was still counsel of

record, moved to withdraw as counsel by reason that he and Hammonds had

agreed that counsel’s representation of Hammonds would last only through

sentencing. We granted both counsel’s motion to withdraw and Hammonds’s

motion to proceed in forma pauperis. United States v. Hammonds, No. 15-12849-

E, slip op. at 1 (11th Cir. Dec. 22, 2016) (single-judge order). We further indicated

that the Court would sua sponte appoint appellate counsel for Hammonds because

indigent defendants have a constitutional right to counsel on their first direct

appeal and because whether Hammonds wished to proceed pro se was “not clear.”

Id. Following this December 2016 order, this Court tried to appoint appellate

counsel for Hammonds. For reasons that are unclear on the record before us,

however, those efforts have to date been unsuccessful.

      Hammonds’s frustration over the lack of movement on his case began to

take hold. In January 2018, Hammonds sent this Court an inquiry on the status of

his appointed counsel. And in May 2018, he sent us a self-styled “Motion to Enter



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Decision.” In the motion, he expressed frustration that the Court still had not

appointed counsel and that the “failure to appoint counsel, or to enter any order

setting a briefing schedule if [he] is to proceed on his own makes impossible [his]

other remedies, to wit, petition for certiorari and/or Motion for collateral relief.”

He asked us either to appoint counsel or to affirm the judgment below so that he

could seek these other remedies. We construed this filing as a motion to proceed

on appeal pro se, which we granted. United States v. Hammonds, No. 15-12849-E,

slip op. at 1 (11th Cir. July 12, 2018) (per curiam). The Clerk set a briefing

schedule, and the parties briefed the case.

      Hammonds’s frustration with the lack of appointed counsel has not

dissipated. In his initial brief to this Court, he writes—in the very first sentence—

“As a preliminary matter, [Hammonds] respectfully reminds the Court that the

constitutional right to counsel on direct appeal has been violated in this matter.”

Hammonds then recaps the full procedural history of his case before asking us to

“adjudicate the issues presented while he awaits this Court’s decision so he can

raise his ineffective assistance claims under 28 U.S.C. § 2255.”

                                           II.

      The first question we face is whether we can permit Hammonds to proceed

pro se on this record. The Sixth Amendment guarantees a criminally accused




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person “the assistance of counsel for his defense.” U.S. Const. amend. VI. 1 Like

other constitutional guarantees, this guarantee is waivable. See Faretta v.

California, 422 U.S. 806, 833, 95 S. Ct. 2525, 2540 (1975) (“The value of state-

appointed counsel was not unappreciated by the Founders, yet the notion of

compulsory counsel was utterly foreign to them.” (footnote omitted)). “While the

right to counsel is in force until waived,” however, “the right of self-representation

does not attach until asserted. In order for a defendant to represent himself, he

must ‘knowingly and intelligently’ forego counsel, and the request must be ‘clear

and unequivocal.’” Gill v. Mecusker, 633 F.3d 1272, 1294 (11th Cir. 2011)

(quoting Brown v. Wainwright, 665 F.2d 607, 610 (Former 5th Cir. 1982) (en

banc)). The waiver of the right to counsel thus invokes the right to self-

representation, as a defendant must exercise one of the two rights.

                                              A.

       This case is easy: Hammonds has not made a “clear and unequivocal”

request to waive his right to appellate counsel and to proceed pro se.

       In Gill v. Mecusker, 633 F.3d 1272 (11th Cir. 2011), we held that the

defendant did not clearly and unequivocally waive his right to counsel, despite

having filed a “motion ‘to dismiss appointed counsel and allow the defendant to


       1
         Moreover, “an indigent criminal defendant must be appointed counsel on appeal if that
appeal is allowed as a matter of right.” Dankert v. Wharton, 733 F.2d 1537, 1538 (11th Cir.
1984) (per curiam).


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represent himself pro se [sic].’” Id. at 1295 (citation omitted). The motion

followed closely on the heels of the trial court’s denial of his request to remove

counsel and to substitute new counsel. Id. In the motion, moreover, he “indicated

a breakdown in communications” with his appointed counsel and “requested that

the trial court dismiss [the appointed counsel] ‘so that [he] could proceed with the

necessary preparations needed to defend his case.’” Id. (citation omitted). We

held that “[e]ven standing alone . . . [the defendant’s] written request to ‘proceed

with the necessary preparations’ [was] far from a clear statement of [his] desire or

intent to proceed without counsel.” Id. (citation omitted).

      Like the Gill defendant, Hammonds suffered a breakdown in

communication—not with his appointed counsel but worse, with this Court.

Indeed, he desired appellate counsel from the get-go and communicated interest in

proceeding pro se only after a year and a half of waiting for the Court to appoint

counsel. Even now, before he asks us to “adjudicate the issues presented,” he

reminds us that his “constitutional right to counsel on direct appeal has been

violated.” Also like the Gill defendant, Hammonds’s plea that we “adjudicate the

issues presented . . . so he can raise his ineffective assistance claims under 28

U.S.C. § 2255” sounds more like a desperate desire to keep his case moving than a

desire to waive his right to counsel.




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       Because Hammonds has taken inconsistent positions earlier in this case—let

alone in the very brief before us now—we cannot conclude from the record that he

has waived his right to appellate counsel. Cf. United States v. Garey, 540 F.3d

1253, 1267 (11th Cir. 2008) (en banc) (indicating that when a defendant has

validly waived his right to counsel, “the record will establish that he knows what

he is doing and his choice is made with eyes open.” (quoting Faretta, 422 U.S. at

835, 95 S. Ct. at 2541)). 2

                                                B.

       We face the question of where to go from here. We could, to be sure, simply

appoint counsel given the inconsistent positions that Hammonds has taken in this

appeal. After all, under Martinez v. Court of Appeal of California, Fourth

Appellate District, 528 U.S. 152, 120 S. Ct. 684 (2000), Hammonds has no

“constitutional right to self-representation on direct appeal from a criminal


       2
         As already explained, we previously held that Hammonds waived his right to appellate
counsel, and one issue is whether the law-of-the-case doctrine bars our holding today. Under the
doctrine, “an appellate decision binds all subsequent proceedings in the same case.” In re
Baptiste, 828 F.3d 1337, 1340 (11th Cir. 2016) (per curiam) (quoting In re Lambrix, 776 F.3d
789, 793 (11th Cir. 2015) (per curiam)). The doctrine is “not absolute,” however, id. at 1341,
and one exception lies when “the prior appellate decision was clearly erroneous and would work
manifest injustice,” id. (quoting In re Lambrix, 776 F.3d at 793–94).
        This exception applies here, but even if it did not, our disposition would be the same. If
Hammonds once waived the right to appellate counsel, and thus invoked the right to proceed pro
se, he has for the moment waived the right to proceed pro se by reminding the Court that his
“constitutional right to counsel on direct appeal has been violated.” Cf. Brown, 665 F.2d at 611
(“Even if [a] defendant requests to represent himself, . . . the right may be waived through [the]
defendant’s subsequent conduct indicating he is vacillating on the issue or has abandoned his
request altogether.”).


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conviction.” Id. at 163, 120 S. Ct. at 692. But the Supreme Court has instructed us

that important benefits flow from allowing a defendant to proceed pro se. See

Iowa v. Tovar, 541 U.S. 77, 93, 124 S. Ct. 1379, 1390 (2004) (warning that a

defendant’s “vain hope” in the benefits of counsel can impede the “prompt

disposition of the case” and waste the “resources of either the State (if the

defendant is indigent) or the defendant himself (if he is financially ineligible for

appointed counsel)”).

       For this reason, we remand Hammonds’s case to the District Court to

determine waiver in the first instance. If the District Court concludes that

Hammonds has not waived his right to appellate counsel, this Court will appoint

counsel. If the District Court concludes that Hammonds has waived his right,

however, we will be required to decide whether the record compiled by the Court

establishes that the waiver was “knowing, intelligent, and voluntary.” See Fant,

890 F.2d at 409.

       To aid that inquiry, we would normally provide the District Court with

instructions so that it can create an adequate record for review. But this Court has

never delineated what is constitutionally required for knowing, voluntary, and

intelligent waiver of appellate counsel.3


       3
          To our knowledge, no circuit has addressed this question outside the context of a
collateral attack. See Jean-Paul v. Douma, 809 F.3d 354, 356, 359–60 (7th Cir. 2015) (Sykes, J.)
(upholding under 28 U.S.C. § 2254 a state court’s legal conclusion of what the Constitution


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       The starting point for defining that standard is Tovar, in which a state

supreme court held that before a court can accept a guilty plea, the Sixth

Amendment requires that the defendant “be advised of the usefulness of an

attorney and the dangers of self-representation.” Tovar, 541 U.S. at 86, 124 S. Ct.

at 1386. The Supreme Court reversed, holding that “[t]he information a defendant

must possess in order to make an intelligent election depends on a range of case-

specific factors, including his education or sophistication, the complex or easily

grasped nature of the charge, and the stage of the proceeding.” Id. at 88, 124 S. Ct.

at 1387. As to the last factor, the “type of warnings and procedures” that are

required to accept a waiver turns on “what purposes a lawyer can serve at the

particular stage of the proceedings in question, and what assistance counsel could

provide to an accused at that stage.” Id. at 90, 124 S. Ct. at 1388 (alteration

omitted) (quoting Patterson v. Illinois, 487 U.S. 285, 298, 108 S. Ct. 2389, 2389

(1988)). The warnings to a defendant who proceeds pro se at trial “must be

‘rigorously’ conveyed,” id. at 89, 124 S. Ct. at 1388 (alteration omitted) (quoting

Patterson, 487 U.S. at 298, 108 S. Ct. at 2398), because a trial advocate must

“adhere to the rules of procedure and evidence, comprehend the subtleties of voir


requires to waive the right to appellate counsel); Speights v. Frank, 361 F.3d 962, 965 (7th Cir.
2004) (Easterbrook, J.) (same). The deferential standard of review under the Antiterrorism and
Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, limits the value of
these cases for our inquiry into the scope of the waiver requirement. See 28 U.S.C. § 2254(d)
(2018).


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dire, examine and cross-examine witnesses effectively, object to improper

prosecution questions, and [do] much more, id. (alteration omitted) (quoting

Patterson, 487 U.S. at 299 n.13, 108 S. Ct. at 2398 n.13). But the warnings to a

defendant at earlier points in the criminal process may be “less searching or

formal.” Id.

      How Tovar applies to waiver of the right to appellate counsel is not a

question we must address unless the District Court determines that Hammonds

wishes to invoke his right to self-representation. Nor should we, as a

determination that he does not waive his right to counsel would obviate a

constitutional inquiry. Cf. Escambia County v. McMillan, 466 U.S. 48, 51, 104 S.

Ct. 1577, 1579 (1984) (per curiam) (“It is a well established principle governing

the prudent exercise of this Court’s jurisdiction that normally the Court will not

decide a constitutional question if there is some other ground upon which to

dispose of the case.”).

                                         III.

      For these reasons, we REMAND this case to the District Court to determine

whether Hammonds intends to waive his right to appellate counsel.




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