     Case: 11-40696    Document: 00512227269      Page: 1   Date Filed: 05/01/2013




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

                                                                   FILED
                                                                   May 1, 2013
                                  No. 11-40696
                                                                  Lyle W. Cayce
                                                                       Clerk
RAY CHARLES MILLER,

                                            Petitioner– Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                            Respondent–Appellee.


                 Appeal from the United States District Court
                      for the Eastern District of Texas



Before KING, DAVIS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Ray Charles Miller (“Miller”) appeals the district court’s denial of his 28
U.S.C. § 2554 application challenging his guilty-plea conviction for intoxicated
manslaughter with a vehicle. We granted a certificate of appealability (“COA”)
on three issues: (1) whether Miller’s trial counsel provided ineffective assistance
regarding a lapsed plea offer from the State; (2) whether the trial court violated
Miller’s right to self-representation by denying his request to proceed pro se; and
(3) whether Miller’s trial counsel provided ineffective assistance because he
refused to move to withdraw or had a conflict of interest. We AFFIRM.
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                                      No. 11-40696

                                             I.
       In March 2007, a Texas grand jury indicted Miller for intoxicated
manslaughter with a vehicle.1 On the day before jury selection for Miller’s trial,
the State offered Miller a plea bargain with a recommended sentence of 16 years
of imprisonment. Miller’s trial counsel, Scott E. Scammahorn (“Scammahorn”),
described his communications with Miller regarding the 16-year offer:
                      During that consultation with Mr. Miller, I
              communicated to Mr. Miller the final offer from the
              District Attorney’s office, which was 16 years. I
              informed Mr. Miller that the ADA was awaiting our
              answer as they had numerous witnesses preparing to
              travel to Tyler for the trial and that if he rejected this
              offer, it would either be withdrawn or increase in prison
              time. I further communicated to Mr. Miller that he had
              cocaine in his system and that the expert I retained to
              review the evidence could not be called as a witness as
              he would not testify favorably. I further informed Mr.
              Miller that he was facing 25 years to life in prison due
              to prior convictions and that an offer of 16 years for
              Intoxicated Manslaughter is exceptional given the
              circumstances. Mr. Miller was adamant that he would
              NOT take the 16 years and that something told him
              “the number is 12” and that he would not take anything
              more than 12. I urged Mr. Miller to reconsider and
              stated that this was the best deal he would be offered.
              Mr. Miller became agitated and again REJECTED the
              16 year offer, stating that he would never take that
              deal. He instructed me to go to the District Attorney’s
              office with the 12 year counter offer, which I did. The
              ADA said no and they would be ready for trial.
                      Just prior to our pretrial hearing the following
              day, I spoke with Mr. Miller and he again stated he
              would not accept the 16 year offer. I requested and was
              granted the opportunity to place Mr. Miller on the
              record rejecting said offer. A few minutes later

       1
         We base our summary of the facts on the state-court record, in accordance with the
Supreme Court’s decision in Cullen v. Pinholster. 131 S. Ct. 1388, 1398 (2011) (holding that
federal habeas review under § 2554(d)(1) “is limited to the record that was before the state
court that adjudicated the claim on the merits”).

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            however, Mr. Miller decided to take the offer. I asked
            the ADA if the offer remained open and was advised
            that said offer had been withdrawn.
Miller tells a different story. According to Miller, Scammahorn failed to relay
the prosecutor’s response to the counteroffer in a timely manner, and this delay
effectively denied him the opportunity to accept the 16-year offer. There is some
record support for Miller’s version of events. At the pretrial hearing, Miller
stated: “I asked Mr. Scammahorn to go back and see if he could get it a little
lower, but get back with me that same day, so I could make a decision on it. I
was willing to make a decision on [the prosecutor’s] offer that day, but there was
a misunderstanding between me and Mr. Scammahorn.”                 Scammahorn
explained that the miscommunication “could have been partially [his] fault.” He
told the court that Miller “did say go back to [the prosecutor], which I did,
knowing the answer, and I didn’t get back to him, because I knew the answer.
But I didn’t—I communicated to his wife and maybe that’s where the
miscommunication took place.”
      Considering this purported miscommunication and other issues between
Miller and Scammahorn, Miller sought to proceed pro se. In a lengthy exchange,
the trial court questioned Miller about his experience with the law and explained
the dangers of self-representation. Although Miller remained steadfast in his
request to proceed pro se, the court decided not to allow it, stating: “I don’t
believe you’re qualified to represent yourself. I don’t have a motion from Mr.
Scammahorn to allow him to withdraw. But under the present state of the
record, he is still your retained attorney, and that’s the way the Court is going
to leave it.” The trial court explained that Miller could not use a last-minute
request for self-representation to “manipulate the orderly administration of
justice,” adding “based on your answers to my questions and the fact that you’ve
got retained counsel standing here, I’m simply not in a position to let you
represent yourself.”


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      The parties reached a plea agreement the following day, after jury
selection was complete. The State agreed to recommend a sentence of 35 years
of imprisonment in Miller’s intoxicated manslaughter case and to dismiss a
separate indictment against Miller for felony theft. In return, Miller agreed to
plead guilty and to waive certain rights, including the right to appeal. Miller
also pleaded true to having two prior state felony convictions, which exposed him
to a statutory imprisonment range of 25 years to life as a habitual offender. Tex.
Penal Code § 12.42 (d). Pursuant to the plea agreement, Miller signed several
written documents, including an Acknowledgment of Admonishments, as well
as a Waiver of Trial by Jury and Waiver of Confrontation and Agreement to
Stipulate.
      Miller appealed his case to the state court of appeals, which dismissed his
appeal based on the express appeal waiver contained in Miller’s guilty plea
agreement. Miller v. State, No. 12-08-00053-CR, 2009 WL 531528, at *1 (Tex.
App.—Tyler 2009, pet. ref’d). The Texas Court of Criminal Appeals (“TCCA”)
refused a petition for discretionary review. Id.
      Miller then filed a state habeas application claiming, inter alia, that his
trial counsel provided ineffective assistance by failing to keep him informed of
the status of the 16-year plea offer before it lapsed, and that the trial court and
his trial counsel violated his right to self-representation. In its Findings of Fact
and Suggested Conclusions, the state habeas court took judicial notice of all
prior proceedings and entered findings of fact and conclusions of law, including:
      -      [Miller] entered his pleas of his own free will.
      -      There was no credible evidence before the Court that
             the defendant’s counsel provided ineffective assistance
             of counsel. The contrary is in fact indicated by the
             record where it shows that counsel continued to
             successfully advocate for the defendant without any
             objection from the defendant.
      -      Nothing in the record of this case indicates that the
             defendant had a direct conflict of interest with his trial

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            counsel, or that counsel failed to convey any plea offers
            from the State.
      -     The Court did not err in refusing to allow the defendant
            to proceed pro se where no motion to withdraw was filed
            by the defendant’s trial attorney.
A state appeals court affirmed, and the Texas Court of Criminal Appeals denied
Miller’s application without written order.
      In his instant § 2554 application, Miller asserted the same claims raised
in his state habeas application. The magistrate judge recommended denial of
Miller’s § 2554 application on the merits and the denial of a COA on the grounds
that: (1) Miller waived his claims by pleading guilty, and (2) the claims failed on
the merits. Over Miller’s objections, the district court adopted the magistrate
judge’s report and recommendation, denied his § 2554 application, and denied
a COA. Miller timely appealed the district court’s judgment, and sought and
obtained a COA on the three issues stated above.
                                        II.
      In reviewing a district court’s decision on a § 2554 application, we review
the district court’s findings of fact for clear error and its conclusions of law de
novo. Harrison v. Quarterman, 496 F.3d 419, 423 (5th Cir. 2007). We must also
consider the deferential standards of the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), which the district court applied in evaluating Miller’s
§ 2254 claims. See id. Pursuant to AEDPA, we cannot grant federal habeas
relief on claims adjudicated on the merits in state court unless the adjudication
resulted in a decision that: (1) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States”; or (2) “was based on an unreasonable determination
of the facts in light of the evidence presented in the State court proceeding.”
§ 2254(d). Moreover, we presume the state court’s factual findings to be correct
unless the applicant rebuts the presumption by clear and convincing evidence.
§ 2254(e)(1).

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       Section 2254(d) sets forth a “highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.” Pinholster, 131 S. Ct. at 1398 (internal quotation marks
and citation omitted). To satisfy the standards of § 2254(d), a state prisoner
must show that the state court’s ruling on his claim “was so lacking in
justification that there was an error well understood and comprehended in
existing law beyond any possibility for fairminded disagreement.” Harrington
v. Richter, 131 S. Ct. 770, 786–87 (2011).
       Having described the contours of AEDPA’s highly deferential framework,
we now turn to the three claims certified for appeal.2
                                               A.
       First, Miller claims that his trial counsel provided ineffective assistance
in allowing the State’s plea bargain offer to lapse.3 To prevail on a claim of
ineffective assistance of counsel, the defendant must show that his “counsel’s
performance was deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To establish
deficient performance, Miller “must show that counsel’s representation fell below
an objective standard of reasonableness.” 466 U.S. at 688. In evaluating
deficiency, we apply a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” Id. at 689. A failure to

       2
        The parties dispute whether Miller’s guilty plea waived these challenges. Because we
agree with the state habeas court and the district court that Miller’s claims fail on the merits,
we need not address the guilty-plea waiver issue, which is complicated by Missouri v. Frye,
132 S. Ct. 1399 (2012) and United States v. Sanchez Guerrero, 546 F.3d 328, 322 (5th Cir.
2008).
       3
         Miller argues that the state habeas court misconstrued his ineffective-assistance-of-
counsel claim, such that de novo review is appropriate. See Henderson v. Cockrell, 333 F.3d
592, 600–01 (5th Cir.2003) (holding that a misconstrued claim was not “adjudicated on the
merits” for the purposes of AEDPA and, as a result, applying de novo review). Having
reviewed Miller’s pleadings and the state habeas court’s decision, we disagree. While the state
habeas court may not have described Miller’s claim in precisely the manner he preferred, it
addressed the substantive legal issues he presented. Therefore, we apply AEDPA deference
to Miller’s claims.

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establish either deficient performance or prejudice defeats the ineffective-
assistance-of-counsel claim. Id.
      In the context of an ineffective-assistance-of-counsel claim subject to
AEDPA deference, “the pivotal question is whether the state court’s application
of the Strickland standard was unreasonable.” Richter, 131 S. Ct. at 785. While
“[s]urmounting Strickland’s high bar is never an easy task,” “establishing that
a state court’s application of Strickland was unreasonable under § 2254(d) is all
the more difficult.” Id. at 788 (citations omitted). “[A] habeas court must
determine what arguments or theories supported or, as here, could have
supported, the state court’s decision; and then it must ask whether it is possible
fairminded jurists could disagree that those arguments or theories are
inconsistent with the holding in a prior decision of [the Supreme] Court.” Id. at
786. Put simply, both the Strickland standard and the AEDPA standard are
“highly deferential” and “when the two apply in tandem, review is ‘doubly’ so.”
Id. (citations omitted).
      Here, Miller asserts that Scammahorn’s communication failure regarding
the 16-year plea offer constituted ineffective assistance of counsel. Specifically,
Miller claims that Scammahorn never relayed the State’s response to his 12-year
counteroffer, and that he would have accepted the State’s initial 16-year plea
offer had he known that it was final. This claim implicates the Supreme Court’s
recent decision in Missouri v. Frye, which held that the Sixth Amendment right
to effective assistance of counsel extends to plea negotiations. 132 S. Ct. 1399,
1408 (2012). In Frye, the court noted the general rule that defense counsel has
a duty to communicate formal offers from the prosecution where the relevant
terms and conditions may result in a lesser sentence, a conviction on lesser
charges, or both. Id. We have previously held, and now reiterate, that Frye did
not announce a new rule of constitutional law because it “merely applied the
Sixth Amendment right to counsel to a specific factual context.” In re King, 697
F.3d 1189, 1189 (5th Cir. 2012).       Therefore, we may consider Frye when

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determining whether the state habeas court’s decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law.”
§ 2254(d)(1).
       The facts of this case, however, are readily distinguishable from Frye.
Here, the state habeas court expressly found that “[n]othing in the record . . .
indicate[d] that counsel failed to convey any plea offers from the State.”
Compare Frye, 132 S. Ct. at 1410 (“On this record, it is evident that Frye’s
attorney did not make a meaningful attempt to inform the defendant of a written
plea offer before the offer expired.”). In reaching its conclusion, the state habeas
court credited Scammahorn’s affidavit, which indicated that he informed Miller
of the State’s 16-year offer and counteroffered with 12 years, as Miller instructed
him to do. Scammahorn further stated that he met with Miller after the State
rejected Miller’s counteroffer, at which time Miller again said that he would not
accept the State’s initial 16-year offer. Miller has not, by clear and convincing
evidence, rebutted the presumption of correctness owed to the state habeas
court’s factual determination. See Batchelor v. Cain, 682 F.3d 400, 405 (5th Cir.
2012) (affirming that pursuant to AEDPA, “a determination of a factual issue
made by a State court shall be presumed to be correct,” and that presumption
must be rebutted by “clear and convincing evidence” (quoting 28 U.S.C.
§ 2254(e)(1)); see also Richards v. Quarterman, 566 F.3d 553, 563 (5th Cir. 2009)
(affirming that “the state habeas court’s factual determinations, including its
credibility findings, are entitled to a presumption of correctness”). Thus, Miller’s
claim cannot survive under Strickland and AEDPA’s combined, “doubly”
deferential review. Richter, 131 S. Ct. at 786.4



       4
         Given that we resolve Miller’s ineffective-assistance-of-counsel claim involving the
lapsed 16-year plea offer from the State on Strickland’s deficiency prong, we need not address
the issue of prejudice. See Murray v. Maggio, 736 F.2d 279, 282 (5th Cir. 1984) (“[I]n
addressing [an ineffective-assistance] claim, we need not . . . address both stages of the inquiry
if an insufficient showing is made as to one.”).

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                                             B.
        Second, Miller claims that the trial court violated his right to self-
representation when it denied his request to proceed pro se at trial. A criminal
defendant has a constitutional right to self-representation at trial when he
knowingly and intelligently waives the right to counsel. Faretta v. California,
422 U.S. 806, 807, 835 (1975). The defendant’s waiver of his right to counsel
must be unequivocal, and it should not be inferred by the court in the absence
of a clear and knowing election. Brown v. Wainwright, 665 F.2d 607, 610 (5th
Cir. 1982) (en banc). Before accepting a waiver of counsel, the court must
consider and weigh:
              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).
        The state habeas noted that it “conducted a serious and extensive inquiry
into the defendant’s claim of a conflict of interest and his desire to proceed pro
se.”    It also made three factual determinations involving Miller’s self-
representation claim: (1) that Scammahorn continued to advocate successfully
for Miller during the course of the proceedings without objection from Miller,
even after the trial court denied Miller’s motion to proceed pro se;5 (2) that “[t]he



        5
         The trial court considered Miller’s request to proceed pro se untimely, as Miller did
not raise it until only a few hours before jury selection. The state habeas court apparently
agreed when it made this determination. The Supreme Court has recognized that the right
to self-representation “is not absolute” under Faretta, and that “most courts require [the
defendant] to [invoke the right] in a timely manner.” Martinez v. Court of Appeal of Cal., 528
U.S. 152, 161–62 (2000); see also id. 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 interest in acting as his own lawyer.”). This determination also supports the
state court’s denial of habeas relief on this claim. See § 2254(d).

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record indicates that the defendant was equivocal in his intent to fire his
retained trial counsel where he asked counsel to continue to negotiate a plea
agreement for him even after allegedly terminating his services”; and (3) that
“[t]he Court did not err in refusing the allow the defendant to proceed pro se
where no motion to withdraw was filed by the defendant’s trial attorney.”
       Pursuant to AEDPA, these determinations of the state habeas
court—which stress that Scammahorn successfully advocated for Miller during
the course of his proceedings—are entitled to deference. See Batchelor, 682 F.3d
at 405; Richards, 566 F.3d at 563. Miller has failed to demonstrate that the
state habeas court’s decision was contrary to, or an unreasonable application of,
clearly established federal law, or that it was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” § 2254(d). Accordingly, Miller is not entitled to habeas relief on his
self-representation claim.
                                             C.
       Third, Miller claims that Scammahorn provided ineffective assistance
regarding his right to self-representation on two grounds. First, Miller argues
that Scammahorn refused to withdraw from the case after he expressed a clear
and unequivocal wish to proceed pro se.6 Second, he contends that Scammahorn
had a conflict of interest, and therefore, abdicated his duty of loyalty to Miller


       6
         Miller sought to proceed pro se at two stages of the proceedings. First, he requested
that Scammahorn withdraw about two weeks before the pretrial hearing. But this request
was equivocal, because Miller contemporaneously requested for Scammahorn to obtain a more
favorable plea agreement from the State. For that reason, it fails. Brown, 665 F.2d at 610.
Second, Miller sought to proceed pro se at the pretrial hearing. Any ineffective assistance
claim arising out of this time period fails because the record shows that any motion that
Scammahorn would have filed to withdraw from the case would have been futile. The state
trial court stated explicitly that it “wouldn’t grant a motion by Mr. Scammahorn to withdraw.”
We “ha[ve] made clear that counsel is not required to make futile motions or objections.” Koch
v. Puckett, 907 F.2d 524, 527 (5th Cir. 1990) (citing Murray v. Maggio, 736 F.2d 279, 283 (5th
Cir. 1984)). Based on these facts, Miller cannot show that Scammahorn assistance was
deficient, especially pursuant to Strickland and AEDPA’s “doubly” deferential review. Richter,
131 S. Ct. at 786.

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by refusing to withdraw from the case.
       These challenges fail for the same reasons involving Miller’s self-
representation claim articulated above. Specifically, the state habeas court
determined that Scammahorn advocated successfully for Miller throughout the
proceedings and that Miller equivocated in his request to proceed pro se.7 This
factual determination of the state habeas court is entitled to deference pursuant
to AEDPA. See Batchelor, 682 F.3d at 405; Richards, 566 F.3d at 563. Because
it is reasonable, we agree with the district court that Miller is not entitled to
habeas relief on this claim.
                                              III.
       For the foregoing reasons, we AFFIRM the district court’s denial of
Miller’s habeas petition.




       7
          We further reject this claim based on the state habeas court’s determination that
“[n]othing in the record indicates that the defendant had a conflict of interest with his trial
counsel . . . .” Determinations of whether an actual conflict existed and whether the conflict
had an adverse effect are mixed questions of law and fact. United States v. Infante, 404 F.3d
376 (5th Cir. 2005). Given the lack of evidence in the state court record showing an actual
conflict of interest, we conclude that the state habeas court’s decision is entitled to deference
under AEDPA. See Batchelor, 682 F.3d at 405; Richards, 566 F.3d at 563.

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