     Case: 14-30552      Document: 00513250539         Page: 1    Date Filed: 10/28/2015




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


                                      No. 14-30516
                                                                                FILED
                                                                         October 28, 2015
                                                                           Lyle W. Cayce
UNITED STATES OF AMERICA,                                                       Clerk

                                                 Plaintiff - Appellee
v.

LEN DAVIS,

                                                 Defendant - Appellant




Consolidated with 14-30552

In re: LEN DAVIS,

                                                 Petitioner


                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-752


Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                               Nos. 14-30516 & 14-30552
       This court has consolidated an interlocutory appeal and a petition for
writ of mandamus, which both stem from an order in a 28 U.S.C. § 2255
proceeding. The order at issue vacated a previous order that had allowed the
§ 2255 petitioner, Len Davis (“Davis”), to proceed pro se with the assistance of
standby counsel. More specifically, the order challenged on appeal allows
Davis to proceed pro se as to the 19 claims that he agreed to raise; however,
with respect to the 10 claims that standby counsel raised and Davis declined
to raise, the district court appointed standby counsel to litigate those claims.
Concluding that the district court erred in denying Davis his statutory right to
proceed pro se, we VACATE and REMAND for further proceedings.
       I.     BACKGROUND
       In 1996, Davis, a former New Orleans Police Officer, was convicted of a
civil rights murder and sentenced to death. 18 U.S.C. §§ 241 and 242. On his
direct appeal, this court upheld the instant convictions but reversed the
sentence and remanded for a new penalty trial. United States v. Causey and
Davis, 185 F.3d 407 (5th Cir. 1999). 1 On remand, Davis informed the court
that he wanted to proceed pro se during the re-sentencing trial. The district
court held a Faretta 2 hearing and found that Davis had made a knowing and
intelligent decision to represent himself. Nonetheless, the court ruled that the
Sixth Amendment right to represent one’s self does not apply to sentencing.
Davis successfully sought a writ of mandamus in which this court instructed


       1   There was a third conviction for willfully killing to prevent the victim from
communicating to law enforcement officers regarding a possible federal crime. This court
reversed that conviction for insufficient evidence. Causey, 185 F.3d at 421–23. The death
sentences were vacated because the jury did not make separate recommendations regarding
the appropriate penalty for each count of conviction. Id. at 423.
        2 Faretta v. California, 422 U.S. 806 (1975). “A Faretta hearing is a hearing conducted

to gauge whether a defendant has invoked his or her right to self-representation knowingly,
voluntarily, and competently; the judge conducting the hearing must also warn the defendant
of the dangers and pitfalls of self-representation.” United States v. Richardson, 478 F. App’x
82, 86 n.9 (5th Cir. 2012).
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                             Nos. 14-30516 & 14-30552
the district court to permit Davis to represent himself at sentencing. United
States v. Davis, No. 01-30656, 2001 WL 34712238 (5th Cir. July 17, 2001)
(“Davis I”).   Subsequently, on remand, the district court issued an order
appointing independent counsel, stating that counsel was to represent the
interest of the public with respect to affording Davis a full and fair sentencing
phase. Davis again petitioned for a writ of mandamus, and this court granted
the petition, holding that the appointment of independent counsel to present
evidence that Davis declined to present violated Davis’s Sixth Amendment
Right to self-representation. United States v. Davis, 285 F.3d 378, 384–85 (5th
Cir. 2002) (“Davis II”). 3
      In July of 2005, the re-sentencing proceedings were held before a jury.
Ultimately, the jury returned a verdict recommending a death sentence. The
district court sentenced Davis to death, and he appealed. This court affirmed
his convictions and sentence of death. United States v. Davis, 609 F.3d 663,
699 (5th Cir. 2010), cert. denied, 562 U.S. 1290 (2011).
      Thereafter, Davis informed the district court that he wished to proceed
pro se during his habeas proceedings. The district court held another Faretta
hearing and found that he understood the consequences of proceeding without
counsel and that he waived his right to counsel voluntarily. The court also
appointed Dr. Mancuso, a psychiatrist, to examine Davis. After examination,
Davis was found competent to make the decision to represent himself. The
court then appointed standby counsel, explaining that Davis would be in
charge of representing himself.




      3  On remand, the district court held that the indictment’s failure to include the
required intent element and aggravating factor for substantial planning and premeditation
prohibited a death sentence. On appeal, this court held that the error was harmless and
remanded the cause. United States v. Davis, 380 F.3d 821, 830 (5th Cir. 2004).

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                              Nos. 14-30516 & 14-30552
          However, on March 20, 2012, without Davis’s permission, standby
counsel filed several motions on his behalf, including a § 2255 motion that
raised 29 issues. Nineteen of the issues challenged his underlying convictions,
and Davis agreed to raise those issues. The remaining issues challenged his
death sentence and his competency, and Davis refused to agree to raise those
issues. Standby counsel then filed a Motion to Vacate Grant of Faretta Relief,
seeking to preclude Davis from proceeding pro se. The district court then
conducted a status conference in April 2012, with Davis participating by
telephone.      Davis again informed the court that he only wanted to raise
challenges to his convictions. The district court requested Davis to submit a
letter specifying which issues he would adopt, and Davis complied. Davis also
filed a response in which he opposed counsel’s motion to vacate his Faretta
relief.
          Because Davis did not want to raise any issues regarding his mental
health or his death sentence, the court ordered another psychiatrist, Dr.
Nasbaum, to evaluate Davis. After the examination, Dr. Nasbaum likewise
concluded that Davis was competent and found no evidence of psychosis. The
court adopted Dr. Nasbaum’s opinion finding Davis competent. Davis filed
another opposition to standby counsel’s motion, and stated that if his right to
self-representation was violated, he would waive any § 2255 review.
          On April 9, 2013, the district court vacated its previous order and ruled
that Davis had no Sixth Amendment right of self-representation under Faretta,
and that he had waived any right of self-representation under 28 U.S.C. § 1654
by failing to expressly assert that statutory right. 4            Nonetheless, the court
allowed Davis to represent himself with respect to the 19 issues he agreed to


        Section 1654 provides as follows: “In all courts of the United States the parties may
          4

plead and conduct their own cases personally or by counsel as, by the rules of such courts,
respectively, are permitted to manage and conduct causes therein.”
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                              Nos. 14-30516 & 14-30552
raise in his petition. With respect to the remaining 10 competency and
sentencing issues, standby counsel would represent Davis. After speaking
with Davis on the phone, standby counsel then filed a motion to strike from the
petition the claims Davis did not agree to raise. The government moved for
partial reconsideration of the order granting the motion to vacate the grant of
Faretta relief. Ultimately, the district court denied both the government’s
motion to reconsider and standby counsel’s motion to strike certain claims,
ruling that Davis had no right to represent himself. However, Davis was
allowed to represent himself as to the claims he agreed to raise. Davis then
filed a notice of interlocutory appeal and a petition for writ of mandamus. He
also moved for appointment of new counsel on appeal. The court denied the
motion to appoint counsel and granted Davis leave to proceed in forma
pauperis on appeal.         The interlocutory appeal and petition for writ of
mandamus are now before this court.
       II.    ANALYSIS
              A. Jurisdiction
       As a threshold matter, this court must examine the basis of its
jurisdiction. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). As set forth
above, Davis filed a notice of interlocutory appeal from the district court’s
order, in which it vacated in part a previous order that had granted him leave
to proceed pro se. 5 The government contends that we have jurisdiction over
this appeal pursuant to the collateral order doctrine. Under that doctrine, a
party may “appeal a collateral order if the order (1) conclusively determines
the disputed question, (2) resolves an important issue completely separate
from the merits of the action, and (3) is effectively unreviewable on appeal from


       5 In § 2255 proceedings, a petitioner cannot take an appeal from a final order unless
a circuit judge issues a certificate of appealability (“COA”). 28 U.S.C. § 2253(c)(1)(B).
However, because this appeal is not from a final order, no COA is required.
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                            Nos. 14-30516 & 14-30552
a final judgment.” In re Bradford, 660 F.3d 226, 228 (5th Cir. 2011) (citation
and internal quotation marks omitted). We agree that Davis’s claim of the
denial of the right to proceed pro se satisfies all three of the prongs of this test.
See Prewitt v. City of Greenville, Miss., 161 F.3d 296, 298 (5th Cir. 1998)
(holding that a denial of the right to proceed pro se falls within the collateral
order doctrine).
       Davis has also petitioned this court for a writ of mandamus. Because
we have jurisdiction over this appeal pursuant to the collateral order doctrine,
we dismiss as moot Davis’s petition for mandamus.
             B. Statutory Right to Proceed Pro Se
      Davis argues that the district court denied him the right to represent
himself in violation of 28 U.S.C. § 1654. Section 1654 provides as follows: “In
all courts of the United States the parties may plead and conduct their own
cases personally or by counsel as, by the rules of such courts, respectively, are
permitted to manage and conduct causes therein.” Citing § 1654, this court
has noted that a “habeas petitioner does have a statutory right to self
representation.” Scott v. Wainwright, 617 F.2d 99, 102 n.3 (5th Cir. 1980) (28
U.S.C. § 2254 habeas case); see also Anderson v. United States, 948 F.2d 704,
705 n.3 (11th Cir. 1991) (recognizing that although a § 2255 petitioner has a
statutory right to represent himself, because there were allegations that he
was incompetent, counsel was appointed to represent him) (citing 28 U.S.C.
§ 1654).
      The district court ruled that Davis had forfeited any statutory right to
represent himself because his pleadings only referred to his constitutional
right under Faretta. Davis argues that the district court erred in finding that
he waived his statutory claim. The government agrees.
      On March 7, 2011, Davis first asserted his right to represent himself
during post-conviction proceedings. At that time, Davis filed a document in
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                           Nos. 14-30516 & 14-30552
the district court entitled “Notification to Court Not to Appoint Nor Assign any
Lawyers to Represent Defendant on PostConviction.” In that notice Davis did
not specifically reference either a statutory or constitutional right to proceed
pro se.
       Subsequently, standby counsel filed a “Motion to Vacate Grant of Faretta
Relief,” seeking to preclude Davis from proceeding pro se. The district court
ordered Davis to file any opposition to standby counsel’s Motion to Vacate
Faretta Relief by March 14, 2013. On February 29, 2013, Davis filed a response
opposing standby counsel’s motion. In that response, he did cite to his Sixth
Amendment Right to self-representation. In addition, however, Davis relied
upon this court’s two prior opinions issuing the writ of mandamus, Davis I and
Davis II. In the first opinion, this court cited and discussed Davis’s statutory
right to self-representation under § 1654. Davis, 2001 WL 34712238, at *1.
Although that opinion involved waiver of counsel at trial, Davis was relying on
that authority in his request to proceed pro se during his § 2255 proceedings.
Thus, he was relying on his statutory right to represent himself. Further, it is
well settled law that federal courts liberally construe briefs filed by pro se
litigants to “avoid waiver.” United States v. Gonzalez, 592 F.3d 675, 680 n.3
(5th Cir. 2009); accord Haines v. Kerner, 404 U.S. 519, 520 (1972) (explaining
that the court holds a pro se litigant’s pleadings “to less stringent standards
than formal pleadings drafted by lawyers”). Under these circumstances, we
are persuaded that Davis sufficiently raised his statutory right to proceed pro
se.
       In addition to finding the claim waived, the district court also noted that
the right to self-representation under the statute is limited by the phrase “by




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                              Nos. 14-30516 & 14-30552
the rules of such courts.” That is correct. 6 Here, however, the district court
did not identify a rule of the court that would prevent Davis from representing
himself. Further, the district court has repeatedly had Davis examined for
competency by psychiatrists and, based on their evaluations, has found him
competent to waive his right to counsel each time. 7 Indeed, the district court
is currently allowing Davis to proceed pro se with respect to all 19 of the claims
that Davis agreed to raise in this § 2255 proceeding. This indicates that the
court does not have an issue with Davis’s ability to proceed pro se. In light of
the court’s determination that Davis is competent and that his waiver of
counsel was voluntarily and intelligently made, the district court erred in
ordering standby counsel to litigate issues he did not agree to raise.
Accordingly, the district court erred in not allowing Davis to exercise his
statutory right to represent himself in the instant proceedings.
              C. Constitutional Right to Proceed Pro Se
       Davis also argues that the district court violated his Sixth Amendment
right to proceed pro se. Because we have determined that his statutory right
to represent himself was violated, we do not need to address whether he had a
constitutional right to represent himself. See Ysleta del Sur Pueblo v. State of
Tex., 36 F.3d 1325, 1332 (5th Cir. 1994) (explaining that this court “should not
reach constitutional issues when a case can be resolved on other grounds”).
              D. In Forma Pauperis
       Davis has filed a motion to proceed in forma pauperis (IFP) with this
court. To obtain leave to proceed IFP, a petitioner must demonstrate financial



       6   As previously set forth, § 1654 provides as follows: “In all courts of the United
States the parties may plead and conduct their own cases personally or by counsel as, by the
rules of such courts, respectively, are permitted to manage and conduct causes therein.”
(emphasis added).
       7 According to the government, Davis has been found competent to waive his right to

counsel four times since his conviction.
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                              Nos. 14-30516 & 14-30552
eligibility and a nonfrivolous issue for appeal. See FED. R. APP. P. 24(a); 28
U.S.C. § 1915(a)(1). Here, however, the district court had already granted
Davis’s motion to proceed IFP on June 17. Rule 24(a)(3) provides that if a
district court grants a motion to proceed IFP, that party may proceed IFP on
appeal without further authorization. 8 See also Tanks v. Perez, 27 F. App’x
325, 327 (6th Cir. 2001) (denying the motion for leave to proceed IFP as
unnecessary because the petitioner had previously been granted IFP status by
the district court). Thus, we deny as unnecessary the motion for leave to
proceed IFP.
              E. Motion for Appointment of Counsel
       Davis has filed a motion with this court for appointment of counsel on
appeal. The district court denied his motion for appointment of appellate
counsel, stating that the “record reflects that thirteen attorneys have
represented the defendant to date and that two of them continue to serve as
counsel. The defendant’s insistence that he is capable of representing himself
should extend to his proceeding pro se in pursuit of the immediate appellate
review he now seeks.” The court also noted that the “budget for defense counsel
on collateral review in a capital case has been exhausted in this matter.” In
his motion before this court, Davis asserts that his current stand-by attorneys
have an obvious conflict and thus could not represent him on this appeal.
Davis points out that these attorneys filed the motion to vacate the order
granting him leave to proceed pro se, and he is now challenging the district
court’s grant of that motion.
       Generally speaking, there is no constitutional entitlement to appointed
counsel in post-conviction relief proceedings. Pennsylvania v. Finley, 481 U.S.


       8  There are some exceptions when further authorization is needed—such as when a
district court finds that the appeal is not taken in good faith—but those are not relevant in
the instant case.
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                          Nos. 14-30516 & 14-30552
551, 555 (1987). Nonetheless, under the Criminal Justice Act, 18 U.S.C. §
3006A(a)(2)(B), a district court may appoint counsel for a § 2255 petitioner who
is financially eligible if the court determines that “the interests of justice so
require.” The decision whether to appoint counsel is within the discretion of
the district court. United States v. Garcia, 689 F.3d 362, 363 (5th Cir. 2012)
(citing United States v. Whitebird, 55 F.3d 1007, 1011 (5th Cir. 1995)).
      Here, Davis appears to have a general understanding of his case and has
filed appropriate briefing on appeal. We believe that supplemental briefing by
appointed counsel would not further aid the court and would be an inefficient
use of resources. Thus, we conclude that the court did not abuse its discretion
in denying the motion to appoint appellate counsel. See Self v. Blackburn, 751
F.2d 789, 793 (5th Cir. 1985).
            F. Reassignment of Case to another District Judge
      In its brief, the government suggests that this court should reassign the
case to another district judge on remand. Although this court has the power
to reassign a case to another judge, it is an “extraordinary power that is rarely
invoked.” In re DaimlerChrysler Corp., 294 F.3d 697, 700 (5th Cir. 2002)
(citations and internal quotation marks omitted).
      To determine whether to invoke this power, this court employs two
different tests. Id. We first consider whether the “facts might reasonably
cause an objective observer to question [the judge’s] impartiality.” Id. at 701
(citation and internal quotation marks omitted).       Second, we look to the
following factors:
            (1) whether the original judge would reasonably be expected
      upon remand to have substantial difficulty in putting out of his or
      her mind previously-expressed views or findings determined to be
      erroneous or based on evidence that must be rejected, (2) whether
      reassignment is advisable to preserve the appearance of justice,
      and (3) whether reassignment would entail waste and duplication

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                              Nos. 14-30516 & 14-30552
       out of proportion to any gain in preserving the appearance of
       fairness.


Id. at 700–01 (citation omitted).
       The government asserts that the district court’s rulings with respect to
Davis’s right to proceed pro se would reasonably cause an objective observer to
question the neutrality of the district court or even conclude the court has
taken on the role of an advocate in Davis’s case. We are not persuaded that
the court’s actions would cause an objective observer to question the neutrality
of the court. We note that the court allowed Davis to proceed pro se on the
issues he raised. We interpret the court’s rulings as attempting to ensure that
his habeas proceedings are conducted properly. Moreover, “judicial rulings
alone almost never constitute a valid basis for finding bias or impartiality.”
Test Masters Educ. Serv., Inc. v. Robin Singh Educ. Serv., Inc., 799 F.3d 437,
455 (5th Cir. 2015) (internal quotation marks and citations omitted).
      As for the second test, we are confident that the district court will follow
the mandate in this opinion and allow Davis to represent himself. Further, we
are not persuaded that reassignment is needed to preserve the appearance of
justice. 9 Finally, we note that Davis has not joined the government in its
request to reassign his case to another judge.             Accordingly, we decline to
reassign this case to a different district judge.
      III.   CONCLUSION
      For the above reasons, the district court’s judgment is VACATED and
REMANDED for proceedings consistent with this opinion. We DISMISS as
MOOT the petition for writ of mandamus. We DENY as unnecessary the


      9     Because we conclude that reassignment is not needed to preserve the appearance
of justice, we need not address whether reassignment would entail waste and duplication out
of proportion to any gain in preserving the appearance of fairness.

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                        Nos. 14-30516 & 14-30552
motion for leave to proceed IFP. We DENY the motion to appoint appellate
counsel.




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