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                                                             [DO NOT PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 15-11809
                           ________________________

                        D.C. Docket No. 2:12-cv-04139-LSC



WALTER LEROY MOODY, JR.,

                                                  Petitioner - Appellant,

versus

COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS,

                                                  Respondent - Appellee.

                           ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                 (March 16, 2017)

Before WILSON, MARTIN, and JORDAN, Circuit Judges.

PER CURIAM:

         In 1991, a federal jury convicted Walter Leroy Moody, Jr. of 71 charges

related to the pipe-bomb murders of United States Circuit Judge Robert S. Vance
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and civil rights attorney Robert E. Robinson. We affirmed Mr. Moody’s

convictions and sentences (seven consecutive life terms plus 400 years, to be

served concurrently) in United States v. Moody, 977 F.2d 1425 (11th Cir. 1992).

      Months after his federal trial ended, an Alabama grand jury indicted Mr.

Moody on two counts of capital murder (for the death of Judge Vance) and one

count of assault in the first degree (for injuries suffered by Judge Vance’s wife).

Mr. Moody represented himself at his state trial, which took place in October of

1996. The jury found him guilty as charged and recommended a sentence of death

for the murders. The state trial court followed the jury’s recommendation and

sentenced Mr. Moody to death. The Alabama Court of Criminal Appeals affirmed,

and the Alabama Supreme Court denied certiorari. See Moody v. State, 888 So. 2d

532 (Ala. Cr. App. 2003), cert. denied, 888 So. 2d 605 (Ala. 2004).

      Following the denial of his state post-conviction motion, see Moody v. State,

95 So. 3d 827 (Ala. Cr. App. 2011), Mr. Moody sought federal habeas corpus

relief pursuant to 28 U.S.C. § 2254. After we rejected Mr. Moody’s contention

that all judges in the Eleventh Circuit had to recuse from his § 2254 proceedings,

see In re Moody, 755 F.3d 891 (11th Cir. 2014), the district court denied habeas

relief in a thorough 189-page opinion. See Moody v. Thomas, 89 F. Supp. 3d 1167

(N.D. Ala. 2015).




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      We granted a certificate of appealability on a single issue: whether Mr.

Moody knowingly and voluntarily waived his Sixth Amendment right to counsel at

his state trial. With the benefit of oral argument, and following review of the

record, we conclude that the conclusion of the Alabama Court of Criminal Appeals

that Mr. Moody knowingly and voluntarily waived his right to counsel was not

contrary to, or an unreasonable application of, clearly established federal law as

determined by the United States Supreme Court. See 28 U.S.C. § 2254(d). 1

                                           I

      “The Sixth and Fourteenth Amendments of our Constitution guarantee that a

person brought to trial in any state or federal court must be afforded the right to the

assistance of counsel before he can be validly convicted and punished by

imprisonment.” Faretta v. California, 422 U.S. 806, 807 (1975). This “right to the

assistance of counsel implicitly embodies a correlative right to dispense with a

lawyer’s help.” Id. at 814 (quotation marks and citation omitted). See also id. at

832–33 (grounding right to self-representation in the Sixth Amendment).

      A defendant who “manages his own defense . . . relinquishes, as a purely

factual matter, many of the traditional benefits associated with the right to

counsel[.]” Id. at 835. As a result, any waiver of the right to counsel must be

“knowing, voluntary, and intelligent.” Iowa v. Tovar, 541 U.S. 77, 88 (2004)

1
 Because we deny Mr. Moody’s Sixth Amendment claim on the merits, we need not and do not
address the state’s exhaustion argument. See 28 U.S.C. § 2254(b)(2).


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(citation omitted). The defendant “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.” Faretta, 422 U.S. at 835

(quotation marks and citation omitted).

      “The determination of whether there has been an intelligent waiver of right

to counsel must depend, in each case, upon the particular facts and circumstances

surrounding that case, including the background, experience, and conduct of the

accused.” Johnson v. Zerbst, 304 U.S. 458, 464 (1938). “[C]ourts indulge every

reasonable presumption against waiver” and “do not presume acquiescence in the

loss of fundamental rights.”      Id. (quotation marks, footnotes, and citations

omitted). Nevertheless, “it is possible for a valid waiver of counsel to occur not

only when a cooperative defendant affirmatively invokes his right to self-

representation, but also when an uncooperative defendant rejects the only counsel

to which he is constitutionally entitled, understanding his only alternative is self-

representation with its many attendant dangers.” United States v. Garey, 540 F.3d

1253, 1265 (11th Cir. 2008) (en banc).

                                          II

      In his direct appeal, Mr. Moody did not challenge the trial court’s decision to

permit him to represent himself at trial pursuant to Faretta. He did, however,

argue that the trial court erred in refusing to grant him, after voir dire examination



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of the jurors had begun, a 12- to 18-month continuance so that he could obtain the

services of two new attorneys who had expressed an interest in representing him.

In analyzing the propriety of the trial court’s denial of a continuance, the Alabama

Court of Criminal Appeals sua sponte examined whether Mr. Moody had waived

counsel prior to requesting the continuance. It reasoned that “if [Mr.] Moody

never validly waived his right to counsel—and if [he] had arrived at trial without

having been afforded the full protections of the Sixth Amendment—it would have

been error for the trial court to have commenced the proceedings and to have

required [Mr.] Moody to proceed through the trial without the aid of a lawyer.”

Moody, 888 So. 2d at 554.

      The Court of Criminal Appeals began by thoroughly recounting the events

“that culminated in [Mr.] Moody’s proceeding through his trial without the aid of a

lawyer.” Id. at 546. Mr. Moody “first expressed his desire to proceed pro se in a

motion filed on July 25, 1994, after he had asserted an unambiguous lack of

confidence in the performance of his court-appointed attorneys.” Id. at 554. After

his request to proceed pro se was granted at a hearing on August 2, 1994, the Court

of Criminal Appeals found Mr. Moody “steadfastly reaffirmed his desire to

proceed pro se, until toward the end of the first day of voir dire examination.” Id.

at 556.




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      As the Court of Criminal Appeals explained, the trial court held two

“lengthy colloquies” with Mr. Moody—one on August 2, 1994, and another on

May 7, 1996—“during which it explicitly warned [Mr.] Moody of the perils of

going forward without counsel,” and made multiple inquiries over the course of the

proceedings to determine whether Mr. Moody was “standing by his request to

proceed pro se.” Id. at 554–55. It also noted that Mr. Moody—who had been a

party in 63 other legal proceedings (civil and criminal) and had proceeded pro se

for all or part of about 35 of those proceedings—was “not a novice.” Id. at 555.

      The Court of Criminal Appeals assumed that Mr. Moody’s original

motivation for moving to proceed pro se was dissatisfaction with the performance

of his appointed counsel, but nonetheless concluded that Mr. Moody’s requests to

proceed pro se remained clear and unequivocal regardless of his attorneys’ alleged

inadequacies. See id. It observed that Mr. Moody expressed some equivocation in

the pretrial proceedings “around whether he desired standby counsel and the

capacity in which any standby counsel would serve,” but found that “[u]ltimately,

[Mr.] Moody expressly stated that he did not want standby counsel.” Id. at 555

n.22. There was no “equivocation amounting to a withdrawal of waiver of counsel

in [Mr.] Moody’s assertions at some of the pretrial hearings that he was being

forced to proceed pro se because (according to [Mr.] Moody) no attorney could

provide him with an adequate defense under the payment limitations imposed by



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Alabama’s statutory scheme for compensating appointed counsel.” Id. at 555.

“Each time after making such an assertion, [Mr.] Moody, when questioned by the

trial court, reaffirmed his desire to represent himself.” Id. Significantly, the trial

court also advised Mr. Moody on several occasions that, if he desired, it would

appoint new counsel to represent him. But Mr. Moody “never requested the

appointment of new counsel or indicated that he had somehow obtained counsel on

his own.” Id.

      Based on its review of the record, the Court of Criminal Appeals was

“confident . . . that when [Mr.] Moody asserted his right to self-representation, he

knew what lay ahead of him.” Id. at 556. In sum, Mr. Moody’s “Faretta rights

were fully vindicated in the proceedings that led up to his trial.” Id.

                                          III

      “In reviewing the district court’s denial of a 28 U.S.C. § 2254 petition, we

review questions of law and mixed questions of law and fact de novo, and findings

of fact for clear error.” Ferguson v. Culliver, 527 F.3d 1144, 1146 (11th Cir. 2008)

(quotations and citations omitted). Whether a defendant has validly waived the

right to counsel is a mixed question of law and fact. See Fitzpatrick v. Wainwright,

800 F.2d 1057, 1063 (11th Cir. 1986).

      Under the Anti-Terrorism and Effective Death Penalty Act of 1996,

however, “both the district court’s review and our review is greatly circumscribed



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and is highly deferential[.]” Crawford v. Head, 311 F.3d 1288, 1295 (11th Cir.

2002) (citation omitted). We may grant habeas relief to Mr. Moody only if the

adjudication of his Sixth Amendment claim by the Alabama Court of Criminal

Appeals “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,” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

      A state court’s decision is “contrary to” clearly established federal law if it

either “applies a rule different from the governing law set forth in [the Supreme

Court’s] cases,” or “if it decides a case differently than [the Supreme Court] ha[s]

done on a set of materially indistinguishable facts.” Bell v. Cone, 535 U.S. 685,

694 (2002) (citation omitted).       A state court unreasonably applies clearly

established federal law if it “correctly identifies the governing legal principle from

[the Supreme Court’s] decisions but unreasonably applies it to the facts of the

particular case.” Id. (citation omitted). “An unreasonable application of federal

law is different from an incorrect application of federal law.”           Woodford v.

Visciotti, 537 U.S. 19, 25 (2002) (quotation marks and citation omitted).

      “Factual determinations by state courts are presumed correct absent clear

and convincing evidence to the contrary, § 2254(e)(1), and a decision adjudicated



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on the merits in a state court and based on a factual determination will not be

overturned on factual grounds unless objectively unreasonable in light of the

evidence presented in the state-court proceeding, § 2254(d)(2)[.]” Miller-El v.

Cockrell, 537 U.S. 322, 340 (2003) (citation omitted).

                                         IV

      Mr. Moody contends that the Alabama Court of Criminal Appeals

committed a number of errors.        First, he argues that it failed to apply the

presumption against waiver of the right to counsel. Second, he says that it failed to

review all of the facts and circumstances involved. Third, he maintains that it

failed to consider the trial court’s legal misstatements. We discuss each of these

challenges below, but combine the first two together because they are interrelated.

                                         A

      Mr. Moody, emphasizing that courts must indulge every reasonable

presumption against the waiver of the right to counsel, see Zerbst, 304 U.S. at 464,

says that the Court of Criminal Appeals actually applied a presumption in favor of

waiver. We disagree. For starters, we note that the scenario here does not merely

involve the waiver of a single constitutional right, but rather the assertion of one

Sixth Amendment right (the right to self-representation) and the correlative waiver

of another Sixth Amendment right (the right to counsel). See Marshall v. Rodgers,

__ U.S. __, 133 S. Ct. 1446, 1450 (2013). See also Cross v. United States, 893



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F.2d 1287, 1290 (11th Cir. 1990) (“self-representation necessarily entails the

waiver of the [S]ixth [A]mendment right to counsel”). We recognize that portions

of the extensive five-year pre-trial record, if read in the light most favorable to Mr.

Moody, might give us some pause if we were exercising plenary review of a Sixth

Amendment claim on direct appeal from a federal conviction. But we are not

conducting such an unfettered analysis here.                   Instead, we are reviewing the

decision of the Court of Criminal Appeals under AEDPA deference, and that

makes a difference.

          Mr. Moody filed his “Motion to Defend Pro Se” shortly after his attorneys,

Richard S. Jaffe and L. Dan Turberville, moved to withdraw based on

irreconcilable differences. In his motion Mr. Moody sought to “exercise[ ] his

absolute right to defend pro se[.]” He requested that, “[i]f the court sees fit to

appoint an attorney to advise defendant under [Alabama] Rule [of Criminal

Procedure] 6.1(b),” that it be someone who did not normally practice in the

Birmingham courts. 2



2
    At the time, Rule 6.1(b) read as follows:

          A defendant may waive his or her right to counsel in writing or on the record,
          after the court has ascertained that the defendant knowingly, intelligently, and
          voluntarily desires to forgo that right. At the time of accepting a defendant’s
          waiver of the right to counsel, the court shall inform the defendant that the waiver
          may be withdrawn and counsel appointed or retained at any stage of the
          proceedings. When a defendant waives the right to counsel, the court may
          appoint an attorney to advise the defendant during any stage of the proceedings.


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       At the hearing that followed, on August 2, 1994, Mr. Moody explained that

“really my motion was that I be allowed to represent myself pro se based upon my

absolute right to do so. And that the court appoint an attorney to assist me.” The

trial court explained to Mr. Moody several times that he was entitled to have an

attorney or to represent himself, but that he was not entitled to hybrid

representation with an attorney acting as his co-counsel. In response, Mr. Moody

said that he “want[ed] to be on record as being the lead counsel in th[e] case”

because he had been “living with” the case for four years and knew the facts and

how to uncover fabricated evidence. Mr. Moody explained his request to proceed

pro se but with the assistance of “co-counsel” as follows:

       So, I need to be -- to have -- to be in a position to say this is what we
       need to do and provide the attorney with the information that he needs
       to do it. . . . I plan for that attorney to be my liaison between myself
       and the court, myself and the state, myself and all the experts, myself
       and everybody else that is going to support the defense. So, if it
       works as I plan, you won’t hear a peep out of me in court until the day
       of the trial.

The trial court then clarified the respective roles of the attorney and the client in

the following exchange:

       COURT:         [T]he tactics and the way the trial proceeds, the lawyer makes
                      the call on that.



       Such advisory counsel shall be given notice of all matters of which the defendant
       is notified.

Ala. R. Crim. P. 6.1(b) (1994) (emphasis added).


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      MOODY:       That’s what I want.

      COURT:       Not you, sir.

      MOODY:       No, sir.

      COURT:       Now, I don’t want you and I to have any misunderstandings on
                   that.

      MOODY:       Neither do I. Now, when I say I want to represent myself, I
                   want to be in charge of strategy, I want to be in charge of
                   organizing the theory of the defense.

      COURT:       Yes, sir. I understand that. What I am trying to explain to you
                   is, to do that you will be by yourself.

      MOODY:       Right.

      COURT:       If you’re going to have a lawyer, the lawyer will be in charge of
                   that.

      MOODY:       Sir, I realize that.

      COURT:       You and he can certainly -- or you and them certainly can, you
                   know, talk among yourselves and --

      MOODY:       That’s precisely the problem I am trying to correct now.

      The trial court also went to great lengths to explain to Mr. Moody the risks

and disadvantages of proceeding pro se, the charges and penalties he faced, and

what could be expected in the trial and sentencing proceedings. The trial court also

considered Mr. Moody’s age (60), IQ (120), and educational background (three

years of undergraduate studies and some law school courses). The trial court

warned Mr. Moody that, in its opinion, representing himself would be a “foolhardy



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endeavor” and advised against it. The trial court told Mr. Moody that he continued

to have a constitutional right to have counsel appointed should he change his mind

in the future, but warned him that if he proceeded pro se, and, at a later point in

time requested counsel, the trial would not be further delayed.

      Mr. Moody indicated that he understood the trial court’s advice and

admonitions. At one point he said that “no one can sit here today and perceive all

of the ramifications of me proceeding pro se. But as each one of these things come

up I will address it to the best of my ability and use whatever resources the [c]ourt

makes available to me.” At the conclusion of the colloquy, Mr. Moody repeated

that it was his desire to proceed pro se, and the trial court granted his motion.

      Two days after the hearing, Mr. Moody wrote to the trial court complaining

about its appointment of Mr. Jaffe to represent him at oral argument before the

Alabama Court of Criminal Appeals on his writ of prohibition concerning the state

comptroller’s refusal to make interim payments to the defense under Alabama

Code § 15-21-12. Mr. Moody objected to the appointment of Mr. Jaffe because he

was now pro se, explaining that such “[d]isregard for my input is one of the main

reasons why I insisted on proceeding pro se.” He also said that he had “given

considerable thought to the various cautions” given to him by the trial court

regarding the limitations that would be imposed on an attorney assigned to assist




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him, and had determined that he did not want “the court to appoint an attorney to

assist [him].” 3

       The next week, Mr. Moody filed a “Motion for Equal Justice.” He stated

that, “in electing to represent himself pro se,” he sought to “remedy the lack of

leadership, lack of work, lack of interest and lack of funding that, for two and a

half years, have denied him adequate representation,” and asserted that he “should

be applauded for exercising his constitutional right to represent himself[.]”

       Mr. Moody relies heavily on what happened after August of 1994 to argue

that the trial court should have reevaluated and reassessed its decision to allow him

to represent himself. In effect, Mr. Moody seems to be saying that he withdrew his

waiver of the right to counsel. The district court rejected this assertion for three

compelling reasons. First, it was procedurally barred. See Moody, 89 F. Supp. 3d

at 1212. Second, it was an inaccurate portrayal of the record (or was at least based

on a view of the record that accorded no deference). See id. at 1212–13. Third, it

was foreclosed by the Supreme Court’s decision in Marshall, 133 S. Ct. at 1449–

50. See Moody, 89 F. Supp. 3d at 1213–14. We think the district court’s analysis

is correct as to all three grounds, and elaborate a bit on the third.



3
  Mr. Moody’s challenges to § 15-12-21 resulted in several published opinions and unpublished
decisions by the Alabama Courts. See, e.g., Ex parte Moody, 684 So. 2d 114, 121 (Ala. 1996)
(holding that “an indigent defendant is not entitled to the expert of his particular choice, but is
entitled to a competent expert in the field of expertise that has been found necessary to the
defense”).


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      Zerbst requires that “courts indulge every reasonable presumption against

waiver of fundamental constitutional rights[.]” 304 U.S. at 464 (quotation marks

and citation omitted). Mr. Moody’s contention seems to be that this presumption

should be applied indefinitely, even after a defendant has effected a valid Sixth

Amendment waiver. This argument, as we previously noted, ignores the “tension”

between the Sixth Amendment’s “guarantee of the right to counsel,” on the one

hand, and “its concurrent promise of a constitutional right to proceed without

counsel when a criminal defendant voluntarily and intelligently elects to do so,” on

the other. Rodgers, 133 S. Ct. at 1450 (quotations, brackets, and citations omitted).

      If this were a direct appeal, we might have to perform a post-waiver analysis

of the record and decide whether to follow the “broad consensus” of other circuits

that have held that “once waived, the right to counsel is no longer unqualified.”

United States v. Kerr, 752 F.3d 206, 220 (2d Cir. 2014) (citing cases). But in the

habeas context, it is sufficient for us to note that the Supreme Court, in Marshall,

has already determined that there is no clearly established federal law with regard

to how a court is to treat a request for counsel made after a valid Faretta waiver.

133 S. Ct. at 1450. In so doing, the Supreme Court rejected the notion that general

Sixth Amendment principles can supply such clearly established federal law. See

id. at 1449. Given that there is no Supreme Court precedent on point, we cannot




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say that the decision of the Alabama Court of Criminal Appeals was contrary to, or

an unreasonable application of, clearly established federal law.

                                          B

      Mr. Moody argues that the trial court misinformed him about his right to

counsel, and about the assistance of standby counsel, thereby rendering his

decision to represent himself unknowing. Given the deference AEDPA calls for,

the argument does not carry the day.

      The trial court engaged in a “lengthy colloquy” with Mr. Moody on August

2, 1994, and “warned him that he would be at a significant disadvantage without

counsel; that, as a non-lawyer, he would be ‘ill-equipped’ to make arguments to the

jury; and that [it] considered his desire to represent himself to be ‘a foolhardy

endeavor.’” Moody, 888 So. 2d at 547. The trial court also advised Mr. Moody of

the charges and the penalties he faced, conducted an inquiry into his background,

education, intelligence, and legal experience, and “urged [Mr.] Moody to accept

counsel.” Id.

      There is no mandatory script that a court must read to a defendant who is

thinking about representing himself at trial. “The information a defendant must

possess in order to make an intelligent election . . . will depend on a range of case-

specific factors, including the defendant’s education or sophistication, the complex

or easily grasped nature of the charge, and the stage of the proceeding.” Tovar,



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541 U.S. at 88 (citation omitted). In assessing the totality of the circumstances

here, therefore, we take into account not only the colloquies between the trial court

and Mr. Moody, but also the information revealed by the record. See Fitzpatrick,

800 F.2d at 1066 (reviewing several factors to determine whether the risks of a pro

se defense are understood, including whether a defendant is represented by counsel

before trial and the defendant’s knowledge of the nature of the charges and

possible penalty he was subject to if convicted).

       By August of 1994 Mr. Moody had been represented for over two years by

Mr. Jaffe and Mr. Turberville.          He had also been a party in 63 other legal

proceedings (civil and criminal) and had proceeded pro se for all or part of about

35 of those proceedings. See Moody, 888 So. 2d at 547. Mr. Moody had also sat

through a federal trial based on the same underlying events with much of the same

evidence, a trial in which he “took the stand as his only witness for four days of

narrative testimony.” Moody, 977 F.2d at 1429. 4

       According to Mr. Moody, the trial court incorrectly described the assistance

he could have from standby counsel if he represented himself. As Mr. Moody sees

things, the trial court (and the Alabama Court of Criminal Appeals) erroneously

characterized his request as a request for “hybrid representation” when it was
4
  On appeal of his federal convictions, Mr. Moody unsuccessfully argued that the district court
violated his Sixth Amendment right to counsel by allowing him to testify contrary to his
counsel’s wishes. Mr. Moody’s counsel had explained that Mr. Moody “was insisting on
testifying despite their repeated efforts to dissuade him.” Moody, 977 F.2d at 1430.



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really a request for standby counsel. We assume, without deciding, that at times

the trial court’s explanation of what standby counsel could do was not completely

accurate. Mr. Moody, for example, points to the trial court’s statement at the

hearing on August 2, 1994, that standby counsel could not help him at all with any

pretrial matters. But even with this assumption, we do not think Mr. Moody is

entitled to habeas corpus relief. 5

       There is no categorical bar on the assistance of standby counsel for a

defendant who has elected to represent himself at trial. See McKaskle v. Wiggins,

465 U.S. 168, 182 (1984). Indeed, where it is necessary, a trial court may appoint

standby counsel over the objection of a defendant who has chosen not to have the

assistance of an attorney. See Martinez v. Court of Appeal of California, 528 U.S.

152, 162 (2000). Nevertheless, “Faretta does not require a trial judge to permit

‘hybrid’ representation,” in which an attorney does certain things at trial (as a type

of co-counsel) while the defendant, who has chosen to proceed pro se, does others.

See McKaskle, 465 U.S. at 183.

       The Alabama Court of Criminal Appeals held that the trial court did not err

by failing to appoint standby counsel. See Moody, 888 So. 2d at 559–63. Notably,




5
  For one description of the differences between hybrid representation and standby counsel, see
Joseph Colquitt, Hybrid Representation: Standing the Two-Sided Coin on Its Edge, 38 Wake
Forest L. Rev. 55, 74–55 (2003).


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it characterized Mr. Moody’s request for counsel to assist him in representing

himself pro se in this way:

      [Mr.] Moody intended to assent to the appointment of standby counsel
      only if such counsel would function as what amounted to his legal-
      research assistant, and only if such counsel would perform extensive
      pretrial investigation at his direction. It is clear that [Mr.] Moody
      wanted to exercise complete control over any [of] counsel’s actions,
      including all tactical and strategic decisions as to how to prepare and
      present the case.

Id. at 559–60.    It ruled that Mr. Moody was not entitled to a “hybridized

representation of his own design[,]” and observed that, had the trial court

appointed standby counsel over his objections, Mr. Moody would be arguing that

was a ground for reversal. Id. at 560 (citations omitted).

      The record here supports the conclusion of the Alabama Court of Criminal

Appeals that, on the question of standby counsel, “[Mr.] Moody was evasive” and

that, “ultimately, he never asserted an unequivocal desire to have standby counsel

appointed.” Moody, 888 So. 2d at 549. When he asked to proceed pro se, Mr.

Moody requested only that, if the trial court saw fit to appoint an attorney to advise

him, it be someone who did not practice in Birmingham. At the hearing on August

2, 1994, Mr. Moody said inconsistently that he wanted an attorney to make the

calls on strategy and evidence and that he—and not the attorney—would be in

charge of strategic decisions and the theory of defense. Following the trial court’s

colloquy at that hearing, and after he had reaffirmed his desire to proceed pro se,



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Mr. Moody separately requested that he be permitted to provide the court with a

written description of the “type of lawyer assistance” he desired in the case. Two

days later, however, he wrote to the trial court stating that he did not want an

attorney to assist him.

      The following week, in his “Motion for Equal Justice,” Mr. Moody asked

the trial court to reappoint Mr. Jaffe and to appoint another attorney, Mr. Tommy

Nail, “as co-counsel to assist” him. The trial court had already explained to Mr.

Moody that he did not have a constitutional right to hybrid co-counsel. See Cross,

893 F.2d at 1291–92. Even so, less than a week later, Mr. Moody rescinded the

motion to reappoint Mr. Jaffe because his “past differences” with him had not been

resolved.

      Mr. Moody argues that he never actually withdrew his request for Mr. Nail’s

assistance, and that the Alabama Court of Criminal Appeals ignored this crucial

fact. But he fails to take into account the trial court’s order of August 31, 1994,

which reserved ruling on Mr. Moody’s request for assistance from Mr. Nail

because it was not clear what type of representation Mr. Moody envisioned. In this

order, the trial court asked that Mr. Moody clearly indicate “if he desires Mr. Nail

to represent him in an advisory capacity only, or if he no longer wishes to proceed

pro se and he wants to be represented by counsel.” From what we can gather from

the record, Mr. Moody did not respond to the trial court’s order.



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                                          V

      “[T]he right to counsel is intended as a tool, not a tether.” Garey, 540 F.3d

at 1263. Given AEDPA deference, we see no basis for overturning the ruling of

the Alabama Court of Criminal Appeals that Mr. Moody knowingly, voluntarily,

and intelligently waived his right to counsel prior to proceeding to trial and that he

rejected the assistance of standby counsel. The district court’s denial of Mr.

Moody’s habeas corpus petition is therefore affirmed.

      AFFIRMED.




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MARTIN, Circuit Judge, concurring:

      Criminal defendants have a constitutional right to represent themselves.

This is true no matter how serious or complex their trial. It doesn’t matter that the

defendant has no specialized legal knowledge or experience which allow him to

effectively advocate for himself. Neither does it matter that with no lawyer, a

capital defendant is not likely able to give the jury the information it needs to make

a fair and reliable decision about not only his guilt, but his punishment. Binding

Supreme Court precedent requires only that a defendant make a valid waiver of his

right to counsel in order to proceed on his own. Faretta v. California, 422 U.S.

806, 834–36, 95 S. Ct. 2525, 2540–41 (1975). Almost no one thinks it is a good

idea for criminal defendants to represent themselves at trial. Even the Supreme

Court in Faretta recognized “[i]t is undeniable that in most criminal prosecutions

defendants could better defend with counsel’s guidance than by their own unskilled

efforts.” Id. at 834, 95 S. Ct. at 2540.

      I agree with the majority’s judgment that Walter Leroy Moody is not entitled

to habeas relief. He did not present his Faretta claim to the Alabama Supreme

Court, so he did not exhaust his state court remedies. 28 U.S.C. § 2254(b)(1)(A). I

write separately because this trial record demonstrates the troubling consequences

of Faretta—particularly in capital cases. Representing himself at his capital trial,

Mr. Moody made no objection to any evidence. He made no opening or closing



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argument to the jury. He failed to put on any defense. He essentially refused to

participate in the trial. During the part of the trial in which the jury was called

upon to decide whether he should be put to death, Mr. Moody gave them no

evidence in mitigation. After this paltry presentation, it is of little surprise that the

jury found Mr. Moody guilty and then, by a vote of 11-1, recommended that he be

sentenced to death. This kind of one-sided proceeding is concerning not only

because it fails to effectively protect the constitutional rights of capital defendants,

but also because it fails to protect the public’s interest in fair and accurate criminal

proceedings. As a U.S. court of appeals we are bound by Faretta, but I hope the

Supreme Court will reconsider the contours of this rule in the context of capital

trials.

                                            I.

          The Supreme Court recognized the constitutional right to self-representation

in 1975, holding that a criminal defendant could proceed without counsel “when he

voluntarily and intelligently elects to do so.” Faretta, 422 U.S. at 807, 95 S. Ct. at

2527. The Court acknowledged at the time that its holding was in discord with a

long line of precedent emphasizing that “the help of a lawyer is essential to assure

the defendant a fair trial.” Id. at 832–33, 95 S. Ct. 2540. See, e.g., Argersinger v.

Hamlin, 407 U.S. 25, 31, 92 S. Ct. 2006, 2009 (1972) (“The assistance of counsel

is often a requisite to the very existence of a fair trial.”); Powell v. Alabama, 287



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U.S. 45, 68–69, 53 S. Ct. 55, 64 (1932) (“The right to be heard would be, in many

cases, of little avail if it did not comprehend the right to be heard by counsel.”).

      The dissenters in Faretta criticized the majority’s holding as inconsistent

with the defendant’s right to a fair trial and society’s interest in just criminal

proceedings. Chief Justice Burger predicted the right to self-representation would

“only add to the problems of an already malfunctioning criminal justice system.”

Faretta, 422 U.S. at 837, 95 S. Ct. at 2542 (Burger, C.J., dissenting). He said “th[e]

goal [of ensuring justice] is ill-served, and the integrity of and public confidence in

the system are undermined, when an easy conviction is obtained due to the

defendant’s ill-advised decision to waive counsel.” Id. at 839, 95 S. Ct. at 2543.

Along the same lines, Justice Blackmun called the decision “a drastic curtailment

of the interest of the State in seeing that justice is done in a real and objective

sense.” Id. at 851, 95 S. Ct. at 2549 (Blackmun, J., dissenting).

      The passage of time has done nothing to allay these fears. Indeed the

Supreme Court has since observed that “experience has taught us that a pro se

defense is usually a bad defense, particularly when compared to a defense provided

by an experienced criminal defense attorney.” Martinez v. Court of Appeal of

Cal., Fourth Appellate Dist., 528 U.S. 152, 161, 120 S. Ct. 684, 691 (2000)

(quotation omitted).     And others have expressed dismay with the practical

consequences of Faretta’s holding. See, e.g., United States v. Farhad, 190 F.3d



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1097, 1106–07 (9th Cir. 1999) (Reinhardt, J., concurring) (noting that the right to

self-representation “frequently, though not always, conflicts squarely and

inherently with the right to a fair trial”). These concerns are certainly at their apex

in the context of capital trials, where the defendant’s life is at stake.

                                           II.

      We know that high quality legal representation is essential in capital trials.

Capital trials are more complex. They have their own unique set of rules. See

Murray v. Giarratano, 492 U.S. 1, 28, 109 S. Ct. 2765, 2780 (1989) (Stevens, J.,

dissenting) (“[T]his Court’s death penalty jurisprudence unquestionably is difficult

even for a trained lawyer to master.”); ABA Guidelines for the Appointment and

Performance of Defense Counsel in Death Penalty Cases, Guideline 1.1, History of

Guideline (rev. Feb. 2003), reprinted in 31 Hofstra L. Rev. 913, 921 (2003)

(“[B]ecause of the extraordinary complexity and demands of capital cases, a

significantly greater degree of skill and experience on the part of defense counsel is

required than in a noncapital case.”). Because of the severity and finality of the

death penalty, the Supreme Court has imposed a number of procedural protections

that apply only in capital cases. These constitutionally required protections seek to

ensure greater reliability in the decision making at both the guilt and penalty

phases of capital trials. See, e.g., Beck v. Alabama, 447 U.S. 625, 627, 637–38,

100 S. Ct. 2382, 2384, 2389–90 (1980) (holding that the jury must be instructed on



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lesser included offenses supported by the evidence in the guilt phase of a capital

trial); Lockett v. Ohio, 438 U.S. 586, 604, 98 S. Ct. 2954, 2964–65 (1978)

(plurality opinion) (requiring consideration of any relevant mitigating evidence

during the penalty phase of a capital trial). When capital defendants are tried

without the help of a lawyer, however, these extra protections can be meaningless.

      This is borne out by what happened at Mr. Moody’s trial after the judge

found he had waived his right to counsel. Or better said—what didn’t happen. Mr.

Moody made no opening statement or closing argument. He made no objections to

the evidence, and he called no witnesses. And the crucial penalty phase of trial

was no different. The State presented the jury with its case in aggravation and

asked the jurors to recommend a sentence of death. Mr. Moody sat silent, offering

nothing in mitigation. See Moody v. State, 888 So. 2d 532, 552–53 (Ala. Crim.

App. 2003).

      The penalty phase of a capital trial is a separate proceeding in which the jury

is asked to decide whether the person it just convicted of a capital offense should

be put to death by act of the state, or instead receive a life sentence. E.g., Ala.

Code § 13A-5-45. At sentencing, the prosecutor asks the jury to sentence the

defendant to death. Often, as was the case in Mr. Moody’s trial, the prosecutor can

highlight the unfathomable cruelty shown by the defendant, as well as the resulting

horrific and senseless deaths. The job then falls to the defense counsel to educate



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the jury about the defendant by telling his story in such a way as to communicate

how this defendant came to do this horrible thing. It is well established that

“before a jury can undertake the grave task of imposing a death sentence, it must

be allowed to consider a defendant’s moral culpability and decide whether death is

an appropriate punishment for that individual in light of his personal history and

characteristics and the circumstances of the offense.” Abdul-Kabir v. Quarterman,

550 U.S. 233, 263–64, 127 S. Ct. 1654, 1674 (2007). But when the jury hears only

one side of the story, it can’t do that. Without knowing a person’s background and

character, a jury has no way of knowing whether death is the appropriate sentence.

      More than 80 years ago, the Supreme Court told us that to allow a person

charged with a capital offense to be “prosecuted by counsel for the state without

assignment of counsel for his defense, tried, convicted, and sentenced to death . . .

would be little short of judicial murder.” Powell, 287 U.S. at 72, 53 S. Ct. at 65.

But even now our precedent permits capital defendants to undermine their own

defense by choosing to proceed without counsel. State courts are not required to

appoint standby counsel to assist pro se capital defendants, and the trial judge

declined to do so for Mr. Moody. Moody, 888 So. 2d at 552. Allowing a capital

defendant to go before a jury without the assistance of counsel undermines the

legitimacy of the criminal trial that results in his sentence of death. See People v.

Bloom, 774 P.2d 698, 727 (Cal. 1989) (Mosk, J., concurring and dissenting)



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(“Faretta . . . is not a sword for the defendant; he may not use the right of self-

representation to . . . undermine the adversary process.”).

      The Supreme Court recently reaffirmed the continuing vitality of Faretta.

Indiana v. Edwards, 554 U.S. 164, 178, 128 S. Ct. 2379, 2388 (2008) (explicitly

declining to overrule Faretta). But the Court’s decision in Edwards also confirmed

that the right to self-representation is not absolute and may be limited under certain

circumstances. See id. (holding that a state may deny a defendant the right to

represent himself if he lacks the mental competency to conduct his own defense);

see also Martinez, 528 U.S. at 163, 120 S. Ct. at 692 (holding there is no right to

self-representation in a direct criminal appeal); McKaskle v. Wiggins, 465 U.S.

168, 184, 104 S. Ct. 944, 954 (1984) (holding that standby counsel may be

appointed over a pro se defendant’s objection). There are good reasons to limit the

scope of this right in capital trials. We should not allow defendants to use the

criminal justice system as “an instrument of self-destruction.” Faretta, 422 U.S. at

840, 95 S. Ct. at 2543 (Burger, C.J., dissenting).




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