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

                                                                                    FILED
                                                                                March 25, 2015
                                      No. 13-30016
                                                                                 Lyle W. Cayce
                                                                                      Clerk
JAMAHA ROBINSON,

                                                 Petitioner–Appellant

v.

STATE OF LOUISIANA,

                                                 Respondent–Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:12-CV-749


Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       This is an appeal from a district court’s decision denying habeas relief
under 28 U.S.C. § 2254. Petitioner–Appellant Jamaha Robinson was convicted
by a Louisiana jury of cocaine distribution. He asked to represent himself
during his criminal trial. The judge did not warn Robinson about the dangers
of proceeding to trial pro se before allowing Robinson to represent himself. For



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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instance, when Robinson told the judge that he did not understand the rules of
procedure and evidence, the judge replied: “Well, you better learn real quick.”
This Court granted a Certificate of Appealability (COA) on one question:
whether Robinson “knowingly and intelligently waived his Sixth Amendment
right to counsel.” For the reasons that follow, we answer this question in the
negative and reverse and remand.
          I.   FACTUAL AND PROCEDURAL BACKGROUND
      Robinson pleaded not guilty to cocaine distribution and asked to
represent himself at trial. The trial judge asked Robinson why he wanted to
represent himself, and he replied: “Because I feel like I could explain to the
jury my point better, my point of view.” The court then asked Robinson if he
understood that he had the right to an attorney at all stages in the proceedings,
and he said he did.
      In a colloquy about his competence, Robinson said that he had a tenth-
grade high school education and had not obtained a GED. He said he was
twenty years old and unemployed, though he had once worked as a “carpenter
helper” for his uncle. Robinson informed the court that he was able to read,
write, and speak English. The court ordered appointed counsel, Mr. Beebe, to
remain in the courtroom as Robinson’s standby counsel. The court told
Robinson he could choose to be heard by a judge or a jury, and he selected a
jury trial.
      Robinson then gave the court reason to doubt his understanding of the
dangers of representing himself. The judge said: “I’m expecting you to proceed
just as if you were a lawyer with the Rules of Evidence that the State of
Louisiana requires all attorneys to abide by. Do you understand that?”
Robinson said: “No sir.” The judge replied: “Well, you better learn real quick



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because you’re going to be expected to follow the rules of court. Do you
understand that?” This time, Robinson said yes.
      The judge again asked Robinson whether he was sure he did not want
the assistance of appointed counsel: “Mr. Robinson, I want to make sure again
we are clear, you do not want the help of Mr. Beebe, am I right on that?” Once
again, Robinson gave the court reason to doubt he fully understood the
consequences of his decision to waive trial counsel. “I need help,” he said, “but
I got a lot of questions I want to ask myself.” After the court asked for
clarification, Robinson tried to explain himself. The judge and Robinson
struggled to understand each other:
      ROBINSON:         I’m saying, hey, I could use him to represent me,
                        but you know what I’m saying, my life is –
      THE COURT:        No, I don’t know what you’re saying; that’s why
                        I’m asking you.
      ROBINSON:         I’m telling you right now, my life is – you know
                        what I’m saying –
      THE COURT:        No, I don’t know what you’re saying; that’s why
                        I need you to say what you –
      ROBINSON:         I have a lot of questions to ask myself.
      THE COURT:        You want to ask some questions to yourself?
      ROBINSON:         No, ask some questions myself to the –
      THE COURT:        Well, you can ask any questions that you want
                        to yourself; we don’t know the –
      ROBINSON:         – the [confidential informant] and the agent.
      THE COURT:        I’m sorry.
      ROBINSON:         I got a lot of questions I want to ask the
                        [confidential informant] and the agent.
      THE COURT:        Okay, all right. Are you ready to proceed?



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Robinson told the judge he was ready, so the judge said, “Well, then let’s
commence the jury selection process.” This entire colloquy is memorialized in
only nine pages of trial transcript.
      At this point, court-appointed counsel interrupted: “Your Honor, before
you [commence the jury-selection process], I’d like the record to reflect that I
have attempted to meet with Mr. Robinson . . . on two occasions. He first
advised me September 29th of this year that he wanted to represent himself in
this matter.” Court-appointed counsel then said: “I advised him that the
pretrial offer was in his best interest. I also advised him that it is better to
proceed with an attorney in this matter, and he has chosen, of his own volition,
to represent himself in this matter.”
      The judge asked Robinson if he had “anything to add or subtract from
that?” Robinson said he did not, and jury selection started.
      The jury ultimately found Robinson guilty of cocaine distribution, and he
was sentenced to ten years’ imprisonment. He was then resentenced as a
habitual offender to fourteen years’ imprisonment.
      Robinson directly appealed to the Louisiana First Circuit Court of
Appeal, filing a counsel brief and a pro se brief that asserted several claims not
pertinent to this appeal. The appellate court affirmed his conviction, and the
Louisiana Supreme Court denied his application for discretionary review.
A.    State Postconviction Proceedings
      Robinson then filed a pro se application for postconviction relief in
Louisiana trial court that pertains to this appeal. Robinson asserted two claims
for postconviction relief that were not raised on direct appeal in either
Robinson’s counsel brief or his pro se brief: (1) that the jury was biased and
(2) that the trial court allowed Robinson to represent himself without a



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knowing and intelligent waiver of his right to counsel—the issue on which a
COA was granted in this case.
         The state trial court denied Robinson’s application for postconviction
habeas relief. The court did not address Robinson’s juror-bias claim for relief
but did handwrite the following text in the margin: “DENIED - Although
defendant conducted his own defense appointed counsel was present during
the proceedings. The issue of representation was not raised on appeal by
appointed defense counsel.”
         The intermediate state appellate court and state supreme court denied
Robinson’s timely writ applications without stated reasons. Robinson then
filed the instant pro se application for federal habeas relief in federal district
court.
B.       Federal Habeas Proceedings
         The district court adopted in full the magistrate judge’s recommendation
that Robinson’s habeas petition be denied on the merits. “The record is clear,”
the magistrate judge concluded, “that the trial court was convinced that
Robinson knowingly and intelligently waived his right to counsel and that he
desired and was able to represent himself. This is all that was required to meet
constitutional standards regarding the waiver.” The district court appears to
have been persuaded by the presence of standby counsel and by appointed
counsel’s representation that he had told Robinson it is “better to proceed with
an attorney.”
         In addition to the colloquy reproduced above, 1 the district court pointed
to five other occasions during the two-day trial in which the judge also
“addressed this issue with Robinson.” Review of the referenced portions of the


         1   See supra Part I.

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transcript reveals that, in each instance, the trial judge simply asked Robinson
whether he still wanted to proceed pro se. 2
       In the last portion of the transcript that the district court cited, Robinson
initially indicated he wanted counsel to help with his closing argument:
       THE COURT:           Okay. Now one more time, just so the record will
                            be clear, Mr. Robinson, would you like Mr. Beebe
                            to give your closing statement?
       ROBINSON:            Yes, sir.
       THE COURT:           Huh[?]
       ...
       MR. BEEBE:           I’m uncomfortable giving a closing argument,
                            because [Robinson] has presented the case in a
                            much different fashion –
       ROBINSON:            I’m going to give the closing argument.
       MR. BEEBE:           – than I would.
       THE COURT:           All right.
After this exchange, the court heard closing arguments from the government
and Robinson.
       Robinson timely appealed, and we granted his application for a COA.
                                  II.    DISCUSSION
       This Court has jurisdiction to review a district court’s decision denying
habeas relief under 28 U.S.C. § 2253(a), provided that a circuit judge grants a
certificate of appealability first, § 2253(c). We granted a COA on one issue:
whether Robinson “knowingly and intelligently waived his Sixth Amendment


       2 On the first occasion, the judge asked Robinson: “Now, would you like Mr. Beebe to
represent you? He’s available to you.” Later, the judge said: “And once again, Mr. Robinson,
I want to ask you if you want to represent yourself, or if you want Mr. Beebe to speak for you
today, to represent you today.” The judge also later asked: “Now you do understand that . . .
you have the right to have the lawyer do the questioning for you. But you’re choosing to
represent yourself; am I correct?”
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right to counsel.” “In an appeal of the district court’s denial of habeas relief,
this court reviews the district court’s findings of fact for clear error and its
conclusions of law de novo, applying the same standard of review that the
district court applied to the state court decision.” Roberts v. Thaler, 681 F.3d
597, 603 (5th Cir. 2012) (citations and internal quotation marks omitted).
      As an initial matter, we must determine the appropriate standard of
review. We then turn to the merits of Robinson’s habeas claim under the
applicable legal standard.
A.    Standard of Review
      We must first decide whether Robinson’s trial-counsel-waiver claim was
“adjudicated on the merits” in state court within the meaning of § 2254. If so,
we defer to the state court’s decision under § 2254(d). By contrast, “[f]or claims
that are not adjudicated on the merits in the state court,” we do not apply the
deferential scheme laid out under § 2254(d) and instead “apply a de novo
standard of review.” Hoffman v. Cain, 752 F.3d 430, 437 (5th Cir. 2014). To
determine whether the state court adjudicated the merits of a federal claim,
we look to the “last reasoned state-court opinion.” Ylst v. Nunnemaker, 501
U.S. 797, 805–06 (1991).
      In this case, the last state court decision of any substance was the state
trial court’s decision denying Robinson’s postconviction habeas application, so
we begin there.
      The   state     court’s   decision   denying    Robinson’s    application    for
postconviction relief is ambiguous in its reasoning. The state trial court
handwrote “DENIED” across the petition and then handwrote the following
text in the margin: “DENIED - Although defendant conducted his own defense
appointed counsel was present during the proceedings. The issue of
representation was not raised on appeal by appointed defense counsel.” The

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Louisiana intermediate court of appeals’ and supreme court’s decisions do not
clarify the matter, as these courts denied Robinson’s applications for
supervisory and discretionary writs by letter order without explanation.
Accordingly, we must decide whether this ambiguous state-court decision
constitutes an adjudication of Robinson’s federal claim on the merits or a
procedural disposition.
      The Supreme Court clarified in Harrington v. Richter that, “[w]hen a
federal claim has been presented to a state court and the state court has denied
relief, it may be presumed that the state court adjudicated the claim on the
merits in the absence of any indication or state-law procedural principles to
the contrary.” 131 S. Ct. 770, 784–85 (2011). “The Richter presumption applies
even where the habeas petitioner raises a federal claim and the ‘state court
rules against the defendant and issues an opinion that addresses some issues
but does not expressly address the federal claim in question.’” Woodfox v. Cain
(Woodfox II), 772 F.3d 358, 370 (5th Cir. 2014) (quoting Johnson v. Williams,
133 S. Ct. 1088, 1091 (2013)). “But the ‘presumption may be overcome when
there is reason to think some other explanation for the state court's decision is
more likely.’” Id. (quoting Richter, 131 S. Ct. at785
      The Fifth Circuit has “adopted a three-part test when it is unclear
whether a state court’s opinion[] adjudicates a claim on the merits.” Id. ” at
371; accord Barrientes v. Johnson, 221 F.3d 741, 779 (5th Cir. 2000). This
inquiry “is akin to asking whether the state court decision was ‘substantive or
procedural.’” Woodfox v. Cain (Woodfox I), 609 F.3d 774, 794 (5th Cir. 2010)
(quoting Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999)). We consider the
following three factors:
      (1)   what the state courts have done in similar cases;



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       (2)    whether the history of the case suggests that the state court
              was aware of any ground for not adjudicating the case on the
              merits; and
       (3)    whether the state courts’ opinions suggest reliance upon
              procedural grounds rather than a determination on the
              merits.
Woodfox I, 609 F.3d at 796 (quoting Mercadel, 179 F.3d at 274) (internal
quotation marks omitted); accord Woodfox II, 772 F.3d at 371. 3
       Our cases applying this three-factor test have concluded that all three
factors need not weigh in favor of a procedural disposition to hold that a claim
has not been adjudicated on the merits within the meaning of § 2254. Gallow
v. Cooper, 505 F. App’x 285, 290 (5th Cir. 2012) (per curiam) (citing Mercadel,
179 F.3d at 274). For example, in Mercadel, the petitioner filed his application
for postconviction relief to the wrong court—directly to the Louisiana Supreme
Court instead of to the convicting district court. 179 F.3d at 274. We noted that
the Louisiana Supreme Court “consistently refused to consider the merits” in
these circumstances, and that Mercadel’s petition was denied in a one-word
order silent as to the reason. Id. Applying the three-factor test, we reasoned
that the Louisiana Supreme Court’s one word denial of postconviction relief


       3    We note that this situation—unclear and ambiguous conflicting statements by the
state court—is different from the ordinary circumstance in which the state court denies or
dismisses a habeas petition without explanation. As noted, unexplained state-court decisions
typically warrant the deferential standard of review under § 2254(d). Richter, 131 S. Ct. at
784–85 (citing Ylst, 501 U.S. at 803); accord Hoffman, 752 F.3d at 438–39 (applying the
Richter presumption to an unexplained state-court decision denying a habeas petition). By
contrast, we apply a three-part test to evaluate a state court decision with an unclear
explanation. Compare Brian R. Means, Federal Habeas Manual § 3:9 “Unexplained state
court decisions” (2014) (“Where a state court’s decision is unaccompanied by an explanation,
. . . it may be presumed that the state court adjudicated the claim on the merits in the absence
of any indication or state-law procedural principles to the contrary.” (quoting Richter, 131 S.
Ct. 770, 784–85 (2011)) (internal quotation marks omitted)), with id. § 3:13 “Ambiguous state
court opinions” (noting that, when a state court gives reasons for its denial of a habeas
petition, federal courts must ascertain “whether the state court’s disposition of a petitioner’s
federal claim was on the merits” and listing the various factors that courts have considered).
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indicated that the third factor favored a merits adjudication, but the first and
second factors “weigh[ed] heavily in favor of . . . treating the state-court denial
as a procedural decision,” so we applied de novo review. Id.; accord Jackson v.
Johnson, 194 F.3d 641, 651 (5th Cir. 1999) (concluding habeas claim’s
“adjudication was not ‘on the merits’ within the intendment of the AEDPA”
even though the “third factor weighs in favor of the conclusion that the state
court disposition was on the merits.”). In other words, two of the three factors
favoring a procedural disposition are enough.
      With these principles in mind, we turn now to the first factor.
      1. What Louisiana Courts Have Done in Similar Cases
      The first factor weighs in favor of concluding Robinson’s Sixth
Amendment claim received a procedural disposition because Louisiana courts
routinely dismiss similar claims for postconviction relief as waived. Louisiana
courts typically bar defendants from asserting, for the first time on collateral
review, claims that were not raised on direct appeal. E.g., State v. Greco, 2003-
0709, at **18 (La. App. 4 Cir. 12/17/03); 862 So. 2d 1152, 1164 (La. Ct. App.
2003) (reversing trial court for granting postconviction relief because “any
claim is barred by [La. Code Crim. Proc.] art. 930.4 because the defendant
failed to raise the issue on [direct] appeal”), writ denied, 2004-0365 (La.
9/24/04); 882 So. 2d 1164; State v. Woodberry, 2002-0994, at **4 (La. App. 4
Cir. 6/5/02); 820 So. 2d 638, 642 (La. Ct. App. 2002), writ denied, 2002-1856
(La. 3/21/03); 840 So. 2d 544; State v. Gaines, 97-1327, at **9 (La. App. 4 Cir.
9/17/97); 701 So. 2d 688, 694 (La. Ct. App. 1997) (“Relator’s claim is
procedurally barred because it was not raised on appeal”), writ denied sub nom.
State ex rel. Gaines v. State, 97-2610 (La. 4/24/98); 717 So. 2d 1160. The first
factor favors a procedural disposition.
      2. The History of This Case

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       Turning to the second factor, the history of this case indicates that the
state court was aware of a ground—specifically, waiver—for not adjudicating
Robinson’s habeas application on the merits. Two facts inexorably lead to this
conclusion: (1) Robinson did not raise his Sixth Amendment claim on direct
appeal, and (2) the state habeas court was clearly aware of this because it
mentioned      waiver      in   its   order    denying      Robinson’s      application      for
postconviction relief.
       Fifth Circuit cases applying the second factor demonstrate that we may
infer a state court’s awareness of a procedural ground from the circumstances.
For instance, in Mercadel, we inferred that the Louisiana Supreme Court was
aware of a procedural defect from the obviousness of the error. 179 F.3d at 275.
Similarly, in Jackson, we concluded that, because there was no objection in the
trial record to the prosecutor’s allegedly improper comments, the history of the
case suggested that the state court found the prosecutorial-misconduct claim
had been waived and not adjudicated on the merits. 194 F.3d at 651.
       As in Jackson and Mercadel, the record supports the inference that the
Louisiana courts found Robinson’s trial-counsel-waiver claim to have been
waived because he did not raise this issue on direct appeal. Robinson did not
raise the trial-counsel-waiver issue on direct appeal. Robinson’s appointed
appellate counsel did not assert Robinson’s Sixth Amendment trial-counsel-
waiver claim in Robinson’s brief on direct appeal. Robinson also filed a pro se
brief in which he did not assert a Sixth Amendment waiver claim either. 4 The


       4See State v. Robinson, 2009-0713, at *1 (La. App. 1 Cir. 9/11/09), 2009 WL 3162234
(unpublished) (“A counseled brief filed on [Robinson’s] behalf argues only that the evidence
was insufficient to support his conviction. Defendant has also filed a pro se brief arguing he
was deprived of his right to a fair trial when the trial court allowed the inconsistent testimony
of an agent and the confidential informant regarding who performed the search of the
confidential informant; and that his arrest and conviction were illegal as a result of the

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state postconviction court was aware of these omissions. In denying Robinson’s
application, the court wrote: “The issue of representation was not raised on
appeal by appointed counsel.” This is direct evidence that the state court was
aware of a procedural ground for not adjudicating the merits.
       Thus, the second factor favors concluding that the state court disposed
of Robinson’s application on procedural grounds.
       3. The Louisiana Court’s Opinion
       Finally, the third factor—the state-court opinion—does not weigh in
favor of either a procedural or a merits adjudication. As discussed above, the
last reasoned state-court decision gives some indication that the court relied
on Louisiana’s waiver rule, Louisiana Code of Criminal Procedure article
930.4. After all, the court expressly stated: “The issue of representation was
not raised on appeal by appointed counsel.” Cf. Fisher v. Texas, 169 F.3d 295,
300 (5th Cir. 1999) (“A review of the opinion rendered by the Texas Court of
Appeals in this case clearly reveals that the state court did not adjudicate the
merits of Fisher’s Batson-religion claim. The state court explicitly decided the
religion issue on waiver grounds . . . .”). On the other hand, the court also noted
that, “[a]lthough the defendant conducted his own defense appointed counsel
was present during the proceedings.” This sentence suggests a merits
adjudication. These sentences appear at odds with one another. In light of this
ambiguity, the third factor does not bear on our analysis. See Mercadel, 179
F.3d at 274 (noting that the “third Green factor does not come into play in this
case” because the state court decision does not indicate one way or another
whether the federal claim was adjudicated on the merits or disposed of on
procedural grounds).


confidential informant’s negotiation with the State to testify against defendant in exchange
for favorable consideration.”).
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      4. Analysis
      Because two of the three Mercadel and Woodfox factors favor a
procedural disposition, we conclude that Robinson’s Sixth Amendment claim
was not adjudicated on the merits within the meaning of § 2254. The first two
factors weigh in favor of finding that Robinson’s Sixth Amendment claim was
disposed of on procedural grounds, and the third factor does not weigh in either
direction.
      We reached a similar conclusion in Jackson. There, we evaluated a one-
sentence Texas Court of Criminal Appeals (CCA) order denying habeas relief.
Unlike in this case, we noted that because of the CCA’s failure to mention
procedural grounds, the third factor weighed in favor of a merits adjudication.
Jackson, 194 F.3d at 651–52. Nonetheless, because the other two factors
favored a procedural disposition under Texas’s waiver rule, we evaluated the
claim de novo. Id.
      The record in this case differs in important ways from other cases in
which we have held that a state court adjudicated a federal claim on the merits
within the meaning of § 2254. For instance, in Woodfox I, we evaluated a
similarly cryptic Louisiana court order denying postconviction relief. 609 F.3d
at 796–97. We observed that because the state filed a brief opposing
postconviction relief in which it pressed only merits arguments, the second
factor (the history of the case) supported a merits adjudication. Id. Under the
third factor, we noted that the state court specifically stated the petitioner’s
“allegations are without merit.” Id. at 797. Accordingly, because two of the
three factors favored concluding that there had been a merits adjudication, we
applied § 2254, explaining there was “simply no indication in the state court
adjudication that suggests a reliance on any procedural vehicle rather than the
merits to deny relief.” Id. In stark contrast here, the state did not file an

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opposition to Robinson’s application for postconviction relief in which it argued
the merits. And unlike the state court order in Woodfox I, which stated the
“allegations are without merit,” here, the state court specifically mentioned a
procedural vehicle to deny relief—that Robinson failed to raise his trial-
counsel-waiver claim on direct appeal. Cf. Barrientes, 221 F.3d at 779 (“[T]he
Texas Court of Criminal Appeals was not put on notice by the State that this
claim was waived. Our inquiry under this factor [therefore] weighs in favor of
concluding that the claim was adjudicated on the merits.”).
        Therefore, the procedural defect in Robinson’s application for
postconviction relief—together with the history of case and the statement by
the state court indicating it was aware that Robinson had failed to raise this
issue on direct appeal—leads us to the conclusion that the state court denied
relief on procedural grounds. Thus, we proceed to analyze the merits de novo.
       5. The Dissent
       We pause briefly to address the dissent. The dissent essentially
disagrees with us on two related issues pertaining to the standard of review.
First, the dissent would apply the Richter presumption and conclude that
§ 2254(d)’s deferential standard of review applies without regard to the three-
factor test we applied in Mercadel and, more recently, in Woodfox II. Post at
23–26. Second, the dissent suggests that, even if the state court did not
consider the merits of Robinson’s federal habeas claim, we should consider sua
sponte applying the procedural bar to deny his pro se petition for federal
habeas relief. Post at 28–30. 5



       5The dissent reads the district court’s brief statement as stating alternative holdings:
one procedural and one on the merits. Post at 2–3. For the reasons stated in our discussion
of the Mercadel and Woodfox II factors above, we do not read the state court’s opinion this
way, and we find the dissent’s logic to be circular. As the Second Circuit explained in Jimenez

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       The dissent’s first point appears to proceed from the following premise:
If the parties agree, forfeit, waive, or concede that a federal habeas claim was
adjudicated on the merits, then they have not rebutted the Richter
presumption, and we should apply § 2254(d) without examining the record for
ourselves. 6 We disagree. This Court, and “not the parties,” “must determine
the appropriate standard of review.” United States v. Torres–Perez, ___ F.3d
___, at ___, 2015 WL 394105, at *1 (5th Cir. Jan. 29, 2015) (citing United States
v. Vontsteen, 950 F.2d 1086, 1091 (5th Cir. 1992) (en banc)). Similarly, in a
recent death-penalty case, the parties agreed that the habeas petitioner had
procedurally defaulted; we nonetheless evaluated the record for ourselves and
held that the claim had been adjudicated on the merits within the meaning of
§ 2254(d). Ward v. Stephens, 777 F.3d 250, 257–59 & n.3 (5th Cir. 2015). We
explained that we were “obligated to decide whether . . . § 2254’s deferential



v. Walker, 458 F.3d 130 (2d Cir. 2006), federal courts apply the three-factor test at the outset
to answer the question the dissent assumes the answer to—whether: (1) the state court’s
decision rested on federal grounds, (2) the state court’s decision rested on primarily state
grounds, or (3) the state court’s decision rested on “interwoven” or alternative federal merits
and state procedural grounds. See id. at 145 & n.16 (“To reiterate, the three clues to the basis
of a state court’s decision are (1) the face of the state-court opinion, (2) whether the state
court was aware of a procedural bar, and (3) the practice of state courts in similar
circumstances.”). As Jimenez makes clear, federal courts apply the presumption from Harris
v. Reed, 489 U.S. 255 (1989) only after they first apply three factors to determine the basis of
the state court’s decision and only if, on that basis, the state court’s decision falls into the
third category. Rather than assuming the answer to this threshold question, we apply the
Fifth Circuit’s three-factor test and conclude that the state court’s decision in this case “fairly
appear[s] to rest primarily on state procedural law.” See Jimenez, 458 F.3d at 145. Thus, we
do not disagree with the dissent’s point that, if the state court’s decision rested on alternative
procedural and merits grounds, then AEDPA deference would apply—indeed, this point is
not controversial. See Post at 3 n.1 (collecting cases). Rather, we disagree with the dissent’s
premise that the state court’s decision rested on alternative grounds; instead, we apply our
obligatory three-factor test to conclude the state court’s decision rested on primarily state
procedural grounds.
       6 See Post at 1 (“The parties have assumed throughout this habeas case that

Robinson’s claims . . . were adjudicated on the merits,” and, “[b]efore the district court and
our court, the parties briefed only the merits.”).

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                                       No. 13-30016


standard of review applies, regardless of the parties’ positions on the matter.”
Id. 7 We see no reason to depart from this fundamental principle of appellate
review in this case. Accordingly, we follow Ylst’s instruction to look through
the unexplained orders to the last reasoned state-court decision to assess its
resolution of Robinson’s claim—even if, due to inadvertence or a pro se
petitioner’s ignorance, the district court neglected to do so.
       The dissent reads Woodfox II and Hoffman to support its position that
the standard of review has been in effect waived by Robinson; we read these
cases as cutting against this position. In Woodfox II, even though the law of
the case applied, we still applied our three-part test to evaluate the state-court
record and independently assess whether the last reasoned decision
constituted an adjudication on the merits. 772 F.3d at 369–72. Hoffman is not
to the contrary. There, the last reasoned state-court decision “did not expressly
address the claim that trial counsel were ineffective,” so we applied the
Richter/Johnson presumption and held that § 2254(d) applied. Hoffman, 752
F.3d at 430. As explained above, unlike Robinson’s federal claims that the state
habeas court did not address—claims on which we denied COA (applying the
Richter/Johnson presumption)—here, the state court issued a reasoned
explanation for why a Louisiana procedural rule precluded it from considering
Robinson’s trial-counsel-waiver claim. Thus, Hoffman is inapposite. 8 The
dissent’s unsupported assertion that the “distinction” between a silent state-



       7  We note that the contrary rule would apply AEDPA in a situation Congress did not
intend and would be inconsistent with the practice in other circuits. See, e.g., Brown v. Smith,
551 F.3d 424, 428 & n.2 (6th Cir. 2008) (applying de novo review after concluding that “[t]he
district court erred in presuming that AEDPA’s deferential standard applied to this case”
reasoning that, even though the petitioner did not raise this issue, “a party cannot ‘waive’
the proper standard of review by failing to argue it”).
        8 See supra note 3 and accompanying text.



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                                        No. 13-30016


court opinion and an ambiguous one “makes no difference,” Post at 7, is
contrary to our case law. As discussed above, federal courts routinely apply two
different doctrinal lines of cases to these distinct scenarios, and in the Fifth
Circuit, we apply a three-factor test to ambiguous opinions. 9
       We also disagree with the dissent’s invitation to apply the procedural bar
sua sponte. The dissent agrees that procedural default constitutes a
nonjurisdictional affirmative defense that the State has forfeited in this case.
Post at 7. Indeed, the Supreme Court has said that “procedural default is
normally a ‘defense’ that the State is ‘obligated to raise’ and ‘preserv[e]’ if it is
not to ‘lose the right to assert the defense thereafter.’” Trest v. Cain, 522 U.S.
87, 89 (1997) (alteration in original) (quoting Gray v. Netherland, 518 U.S. 152,
166 (1996)). But the dissent nonetheless suggests we should apply the default
to bar the petitioner’s claim. Post at 6–8.
       We decline to do so for two reasons. First, the Supreme Court has
declined to approve the practice of circuits sua sponte raising procedural bars.
See Trest, 522 U.S. at 90 (“Louisiana . . . would like us to go beyond the question
presented and hold that the law permitted (though it did not require) the Fifth
Circuit to raise the procedural default sua sponte. . . . [W]e do not believe this
is an appropriate case in which to examine that question . . . .”). On the
contrary, the Supreme Court has specifically held that “[a] court of appeals is
not ‘required’ to raise the issue of procedural default sua sponte.” Id. at 89. 10


       9 See supra note 3 and accompanying text.
       10 The Supreme Court has approved federal habeas courts that have sua sponte raised
equitable defenses, such as exhaustion (i.e., fairly presenting a claim to the state courts), see,
e.g., Wood v. Milyard, 132 S. Ct. 1826, 1836 (2012) (noting that these equitable “judicially
created defenses [are] rooted in concerns of comity and finality that arise when federal courts
collaterally review state criminal convictions”), but the Court has not yet approved sua sponte
invocation of state procedural bars by federal habeas courts against petitioners who availed
themselves fully of state-court remedies. Such procedural bars do not implicate the same

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                                       No. 13-30016


Second, assuming we were permitted to sua sponte assert the procedural
default on behalf of the State, we would decline to do so against this pro se
petitioner whose claim implicates his Sixth Amendment right to counsel, a
claim that he fairly presented to the state court and that, for the reasons
stated, has never been actually adjudicated on the merits by any tribunal. 11
B.     Robinson’s Sixth Amendment Claim
       The Sixth Amendment guarantees the right of the accused “to have the
Assistance of Counsel for his defence.” U.S. Const. amend. VI. In Faretta v.
California, the Supreme Court recognized that the Sixth Amendment also
guarantees the accused the right to proceed without counsel if he “knowingly
and intelligently” elects to do so. 422 U.S. 806, 807, 835 (1975). The Court
explained that, because an accused proceeding pro se “relinquishes . . . many
of the traditional benefits associated with the right to counsel,” the trial judge
must ensure the accused makes this choice “‘with eyes open.’” Id. at 835
(quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 279 (1942)) The
Faretta Court emphasized that an accused “should be made aware of the
dangers and disadvantages of self-representation.” Id. It held that the
defendant had knowingly and intelligently refused counsel: “The record
affirmatively shows that [the defendant] was literate, competent, and
understanding, and that he was voluntarily exercising his informed free will.”
Id. The Court also noted that the “trial judge had warned [the defendant] that




comity concerns as, for instance, the requirement that a federal habeas petitioner first fairly
present his claims to state courts. Cf. Bennett v. Whitley, 41 F.3d 1581, 1583 (5th Cir. 1994)
(“The bar imposed by [Louisiana Code of Criminal Procedure] article 930.4(A) is not a
procedural bar in the traditional sense, nor is it a decision on the merits.”).
        11 The dissent also suggests supplemental briefing is an option. Post at 8 & n.5. We

cannot see how supplemental briefing would permit the State to reanimate a forfeited
nonjurisdictional affirmative defense, rather than simply invite wasted effort and expense
for the State of Louisiana.
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                                  No. 13-30016


he thought it was a mistake not to accept the assistance of counsel.” Id. at 835–
36.
        1. The Parties’ Arguments
        Robinson argues “the trial court failed to warn [him] of the dangers and
perils of self-representation” in violation of the Sixth Amendment. Robinson
points out that “at no point” did the judge “urge Mr. Robinson not to represent
himself.” As for the district court’s reliance on appointed counsel’s
representation to the court that he had “advised [Robinson] it is better to
proceed with an attorney,” Robinson makes two points. First, Robinson argues
“the Fifth Circuit has specifically rejected warnings given by counsel rather
than the court,” referring to United States v. Davis, 269 F.3d 514, 518–19 (5th
Cir. 2001). Second, Robinson argues appointed counsel’s “warning was too
general for a knowing and voluntarily waiver, even if it had been given by the
trial court,” referring to United States v. Jones, 421 F.3d 359, 362 (5th Cir.
2005).
        The State of Louisiana counters by asserting that “the trial court
satisfactorily advised Robinson of the obstacles he would face representing
himself . . . .” The State argues that, before the trial court accepted Robinson’s
waiver of counsel, the judge “discussed his choice with Robinson.” Robinson,
the State argues, “understood that he could choose a jury or a judge trial and
he selected a jury trial.” He also “understood that the court could not advise
him of the law,” the State continues, and the trial judge “repeatedly warned
Robinson that he would be expected to follow the rules of procedure.” The State
concedes that “a ‘stand-by’ attorney does not qualify as assistance of counsel
mandated by the Sixth Amendment,” but it argues the presence of standby
counsel “should be considered as a factor in determining whether Robinson
received a fair trial.” The State neglects to cite authority for this proposition.

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                                       No. 13-30016

       2. Analysis
       We have held that “the assistance of standby counsel, no matter how
useful to the court or the defendant, cannot qualify as the assistance of counsel
required by the Sixth Amendment.” United States v. Taylor, 933 F.2d 307, 312
(5th Cir. 1991). The Fifth Circuit has also interpreted the Supreme Court’s
decisions to require that the trial judge must be the one to warn the accused
about the dangers of proceeding to trial without the assistance of counsel. In
Davis, the trial court did not so warn the accused, and instead relied on
counsel’s warning to the defendant “that [counsel] d[id] not believe it [was] in
[the defendant’s] best interest . . . to participate in the trial” without the
assistance of counsel. 269 F.3d at 517 & n.1. The trial court allowed the
defendant, on his own, to cross-examine nine government witnesses and
examine two defense witnesses. Id. at 517. Appointed counsel handled the rest
of the defense, including opening and closing statements. See id.
       The jury found the defendant guilty, and we vacated the conviction and
remanded for a new trial. Id. at 516–17. We emphasized that it is the judge’s
obligation “to warn [defendants] of the perils and disadvantages of self-
representation,” and we concluded that “[t]he district court failed to discharge
this responsibility.” Id. at 520. “The [district] court’s reliance on the warnings
against self-representation given by [the defendant’s] counsel . . . was not
sufficient,” we explained. Id.
       Here, the trial court’s reliance on standby counsel’s representations was
insufficient to establish a knowing and intelligent waiver of Robinson’s right
to counsel as a matter of law under Fifth Circuit precedent. 12 At no point did


       12 The dissent takes issue with our invocation of circuit precedent in the habeas
context, explaining that this “reliance is improper given that AEDPA applies.” Post at 5 n.3
(emphasis added). For the reasons stated supra Part II(A), we do not take it as a “given” that

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                                       No. 13-30016


the trial judge specifically warn Robinson of the dangers of proceeding pro se.
Cf. Iowa v. Tovar, 541 U.S. 77, 88–89 (2004) (“[The defendant] must be warned
specifically of the hazards ahead.”). Instead, the trial court appears to have
relied on standby counsel’s representations that he had previously “advised
[Robinson] that it is better to proceed with an attorney in this matter.” Under
Davis, this is insufficient. See 269 F.3d at 519. Moreover, even assuming
arguendo the trial judge himself advised Robinson that it was “better to
proceed with an attorney,” this generic warning would also be insufficient to
establish a knowing and intelligent waiver. See Jones, 421 F.3d at 364
(vacating the defendant’s criminal conviction where “the district court
recommended to [the defendant] that he have an attorney and stated that his
appointed counsel was highly qualified” because “the district court took no
steps, except in the most general way, to insure that Jones was ‘aware of the
dangers and disadvantages of self-representation’” (emphasis added) (quoting
United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003))).
       The district court and the State point to the fact that, “[o]n no less than
five occasions before and during the trial, the trial court . . . ensured that
[Robinson] still wanted to proceed without the assistance of counsel.” This
portion of the record establishes that Robinson voluntarily and competently
waived his right to counsel, but it does not show that this waiver was “knowing”
and “intelligent” as required under the Sixth Amendment. See Faretta, 422
U.S. at 835 (“[T]he accused must ‘knowingly and intelligently forgo’” the
“traditional benefits associated with the right to counsel.” (citation omitted)).



AEDPA applies, and we instead confront the important threshold question whether
Robinson’s trial-counsel-merits claim was adjudicated on the merits within the meaning of
§ 2254(d). It is only because we first conclude that his claim was not adjudicated on the
merits, as a threshold matter, supra Part II(A), that we are then guided by Fifth Circuit case
law interpreting the Sixth Amendment’s constitutional protections.
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                                    No. 13-30016


That the judge repeatedly confronted Robinson with the choice to be
represented by counsel is not enough. The question is not whether the
defendant voluntarily chose to represent himself; the “question is whether his
decision was understandingly and intelligently made: that is, did he make this
choice ‘with eyes open.’” Maynard v. Meachum, 545 F.2d 273, 278–79 (1st Cir.
1976) (quoting Adams, 317 U.S. at 279) (remanding habeas petition).
      Robinson’s statements indicated that he did not understand the dangers
of proceeding to trial without counsel. The judge told Robinson that he expected
Robinson “to proceed just as if [he] were a lawyer with the Rules of Evidence
that the State of Louisiana requires all attorneys to abide by. Do you
understand that?” Robinson replied: “No sir.” The judge responded: “Well, you
better learn real quick because you’re going to be expected to follow the rules
of court.” This dialogue does not establish that Robinson knew “what he [was]
doing and [made] his choice . . . with eyes open.” Adams, 317 U.S. at 279.
      Therefore, we hold that Robinson did not knowingly and intelligently
waive his right to trial counsel.
                             III.    CONCLUSION
      For the foregoing reasons, we REVERSE the district court’s judgment
denying habeas relief and REMAND this case to that court with instructions
to order the State of Louisiana to either provide Jamaha Robinson a new trial
or release him from custody within 180 days of the date of the district court’s
order on remand.




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                                 No. 13-30016


JENNIFER WALKER ELROD, Circuit Judge, dissenting.
      Following the Supreme Court’s guidance in Harrington v. Richter, 131
S. Ct. 770, 784–85 (2011), I would hold that the state habeas court adjudicated
Robinson’s claim on the merits and would apply AEDPA deference to deny
relief, as the state habeas court’s determination was neither “contrary to, [n]or
involved an unreasonable application of, clearly established” Supreme Court
precedent. 28 U.S.C. § 2254(d)(1). In the alternative, if the majority opinion
is correct that the state habeas court denied Robinson’s claim because of a
procedural default, we should address whether that same default bars his
federal petition. Accordingly, I dissent.
                                       I.
      The parties have assumed throughout this habeas case that Robinson’s
claims would be, and were, adjudicated on the merits. Neither party briefed
the procedural default issue before the state habeas court, and, upon denying
relief, the state habeas court handwrote the following in its order:
      Although the defendant conducted his own defense, appointed
      counsel was present during the proceedings. The issue of
      representation was not raised on appeal by appointed defense
      counsel.
Despite the order’s arguable ambiguity, this handwritten explanation refers to
both a merits and a procedural adjudication of Robinson’s Sixth Amendment
claim. Indeed, throughout all of the proceedings, the parties treated this order
as adjudicating Robinson’s claim on the merits. Before the district court and
our court, the parties briefed only the merits.     They did not mention the
possibility that the state court adjudicated Robinson’s claim under a
procedural bar, nor did they discuss the standard that our court would use to
determine whether his claim was adjudicated under a procedural bar.



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                                 No. 13-30016


       The district court, adopting the magistrate judge’s report and
recommendation, also did not address whether the state court may have
adjudicated Robinson’s claim under a procedural bar.           The district court
determined that AEDPA applied to Robinson’s petition, analyzed the merits of
his Sixth Amendment claim under AEPDA’s deferential standard of review,
and denied relief.
       Astonishingly, the majority opinion sua sponte raises the procedural bar
issue for the first time on appeal and then incorrectly applies our three-part
test used in Woodfox v. Cain, 772 F.3d 358, 371 (5th Cir. 2014), to determine
that the state habeas court rested its decision on a procedural bar. In so doing,
the majority opinion ignores the presumption we are required to apply and
misapplies the leading cases in our circuit on this issue.
       Following Supreme Court precedent, we must presume a merits
adjudication in three contexts. Harris v. Reed requires us to presume a merits
adjudication where the basis of a state court’s order denying a federal claim is
ambiguous. 489 U.S. 255, 263 (1989) (requiring the state court to “clearly and
expressly” state that it relied on a procedural bar) (internal quotation marks
omitted). Richter instructs that “when a state court’s order is unaccompanied
by     an    opinion     explaining    the     reasons       relief   has     been
denied . . . [the reviewing court] may[] presume[] that the state court
adjudicated the claim on the merits . . . .” 131 S. Ct. at 784–85 (citing Harris,
489 U.S. at 265); accord Cullen v. Pinholster, 131 S. Ct. 1388, 1402 (2011)
(“[AEDPA deference] applies even where there has been a summary denial.”).
And, in Johnson v. Williams, the Supreme Court extended the Richter
presumption to cases in which the state habeas court addresses only some of a
petitioner’s claims in its denial order without addressing the federal claim in
question. 133 S. Ct. 1088, 1091 (2013) (“[T]he federal habeas court must

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                                        No. 13-30016


presume (subject to rebuttal) that the federal claim was adjudicated on the
merits.”) (emphasis added).
       Given that the order in this case refers to both merits-based and
procedural reasons for denying relief, I would conclude that AEDPA deference
applies. Where an order is ambiguous as to its reasons, Harris and Richter
require us to presume a merits-based adjudication, 1 and the parties bear the
burden of rebutting that presumption by demonstrating that the state habeas
court rested its decision on some other ground. Woodfox, 772 F.3d at 370–71.
As explained in Woodfox, we apply a three-part test to determine whether a
party has met his burden. Id. at 371. However, where the parties do not brief
the presumption at all or discuss which grounds the state habeas court relied
upon to deny relief, they cannot overcome it. Hoffman v. Cain, 752 F.3d 430,
436, 439 (5th Cir. 2014).
       In Hoffman, we observed that the presumption could be rebutted by the
petitioner “‘for the purpose of showing the claim should be considered . . . de
novo,’” or by the state “‘for the purpose of showing that the federal claim . . .
[w]as procedurally defaulted.’” 752 F.3d at 439 (quoting Johnson, 133 S. Ct. at
1096). But, because neither party briefed the issue, we held, in light of the
presumption, that the state habeas court adjudicated the petitioner’s claim on
the merits, and we then applied AEDPA deference to our merits analysis. The


       1 Alternatively, if the order is not ambiguous but instead indicates that the state
habeas court relied on both grounds, AEDPA deference would still apply on federal review.
Busby v. Dretke, 359 F.3d 708, 721 n.14 (5th Cir. 2004) (“[I]nvok[ing] a procedural bar as an
alternative basis to deny relief does not deprive the state of the benefit of AEDPA’s deferential
standard.” (emphasis added)). A majority of the other circuits have similarly held. See Brian
R. Means, Federal Habeas Manual § 3:19; see, e.g., Rolan v. Coleman, 680 F.3d 311, 319 (3d
Cir. 2012); Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th Cir. 2010), cert. denied, 2011 WL
743055 (U.S. 2011); Stephens v. Branker, 570 F.3d 198, 208 (4th Cir. 2009), cert. denied, 130
S. Ct. 1073, 175 L. Ed. 2d 901 (2010); Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004);
Crawford v. Head, 311 F.3d 1288, 1324 (11th Cir. 2002); Johnson v. McKune, 288 F.3d 1187,
1192 (10th Cir. 2002).
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                                      No. 13-30016


majority opinion contends that Hoffman is “inapposite” because it involved a
state court order that was silent as to the particular claim at issue rather than
ambiguous. But this distinction makes no difference. Under Ricther and
Harris, we must presume an adjudication on the merits in both scenarios. And,
Hoffman holds that the parties cannot overcome that presumption if they
never brief it or address the reasons why some other explanation is more likely.
Because both Robinson and the state failed to brief the presumption in the
instant case, we should hold, consistent with Hoffman, that the state habeas
court’s order was an adjudication on the merits.
       Instead, the majority opinion sua sponte applies our three-part test
despite the parties’ failure to brief the issue. The majority opinion contends
that regardless of the parties’ briefing, we have an independent duty to apply
our three-part test and determine the state court’s basis for denying relief
because we “must determine the appropriate standard of review.” Ante at 15.
I agree that we, not the parties, ultimately decide whether AEDPA deference
applies, but the Supreme Court has told us precisely how we are to go about
making that determination—we must presume a merits adjudication and the
parties bear the burden of overcoming it. 2 If the majority opinion insists that
we apply the three factors in this case to decide the basis of the state habeas
court’s order, we should first request supplemental briefing on the issue to give
the parties a chance to rebut the presumption. See infra at 8. In light of



       2 The majority opinion pays lip service to Richter, noting that the presumption is
overcome because there are sufficient reasons to the think a non-merits adjudication is more
likely. But these reasons were never argued by either party. In addition, the handwritten
order on its face suggests that the state habeas court rested its decision both on the merits
and a procedural default—a situation in which we have held that “AEDPA deference is still
applicable.” Woodfox v. Cain, 609 F.3d 774, 795 n.7 (5th Cir. 2010).


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                                        No. 13-30016


Richter, Harris, and Hoffman, I believe that the majority opinion’s analysis is
erroneous.
       Applying AEDPA’s deferential review, it is readily apparent that the
state habeas court’s decision was neither “contrary to, [n]or involved an
unreasonable application of, clearly established” Supreme Court precedent. 3
28 U.S.C. § 2254(d)(1). The Supreme Court has not “prescribed any formula or
script to be read to a defendant who states that he elects to proceed without
counsel.” Iowa v. Tovar, 541 U.S. 77, 88 (2004). It is enough “‘if the defendant
fully understands the nature of the right [to counsel] and how it would likely
apply in general in the circumstances—even though the defendant may not
know the specific detailed consequences of invoking it.’” Tovar, 541 U.S. at 92
(2004) (emphasis in original) (quoting United States v. Ruiz, 536 U.S. 622, 629
(2002)). The fact that a defendant “lack[s] a full and complete appreciation of
all of the consequences flowing from his waiver” is not enough to make the
waiver constitutionally infirm. Patterson v. Illinois, 487 U.S. 285, 294 (1988)
(holding that Miranda warnings sufficiently informed a defendant who waived
his right to counsel during police questioning. Id. at 292). What is necessary
is that “the record affirmatively shows that [the defendant] was literate,
competent, and understanding, and that he was voluntarily exercising his
informed free will.” Faretta v. California, 422 U.S. 806, 835 (1975).
       The district court correctly adopted the magistrate judge’s report and
recommendation, and concluded that Robinson’s waiver of trial counsel met



       3The majority opinion first unmoors itself from AEDPA deference, and then relies
upon this circuit’s cases requiring federal district courts to instruct defendants on the
consequences of waiving their rights to counsel in direct criminal cases. Such reliance is
improper given that AEDPA applies. Indeed, the Supreme Court has “emphasized, time and
again, that [AEDPA] prohibits the federal courts of appeals from relying on their own
precedent to conclude that a particular constitutional principle is ‘clearly established.’” Lopez
v. Smith, 135 S. Ct. 1, 1 (2014).
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                                  No. 13-30016


these requirements. Robinson’s court-appointed counsel informed the state
trial court that he “advised [Robinson] that the pretrial offer was in his best
interest. . . . [and] that it is better to proceed with an attorney in this matter.”
The state trial court independently questioned Robinson, informing him that
he would have to know the rules of procedure and could not rely on stand-by
counsel. It made sure that Robinson understood he had a right to counsel at
all stages of the proceeding. In fact, Robinson exercised this right by accepting
court-appointed counsel at the preliminary hearing, at the arraignment and
plea, and at sentencing. However, he continued to assert that he wanted to
represent himself at trial. Robinson explained that although he “could use
[counsel] to represent [him],” he had a lot of questions he wanted to personally
ask the witnesses. The state trial court inquired about Robinson’s educational
and employment background and was satisfied to learn that he had finished
the tenth grade and could read, write, and speak English. Given all of this, the
state trial court concluded that Robinson had knowingly and intelligently
waived his right to counsel. I agree with the district court that this was
sufficient under Supreme Court precedent.
                                        II.
      In the alternative, if the majority opinion is correct in its determination
that the state habeas court’s decision is based on procedural default, the
majority opinion should not ignore the procedural default in its review. The
default may be an independent and adequate state ground for denying relief.
Coleman v. Thompson, 501 U.S. 722, 730–32 (1991).
      This is not a mere technicality. Comity and federalism demand that
federal courts respect state procedural rules. Dretke v. Haley, 541 U.S. 386,
392 (2004) (“The procedural default doctrine . . . has its roots in the general
principle that federal courts will not disturb state court judgments based on

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                                       No. 13-30016


adequate and independent state law procedural grounds.”).                      Accordingly,
“when a state court decline[s] to address a prisoner’s federal [habeas] claims
because the prisoner had failed to meet a state procedural requirement,”
federal courts may not engage in habeas review. Coleman v. Thompson, 501
U.S. 722, 726, 729–30 (1991); see also Michigan v. Long, 463 U.S. 1032, 1040–
41 (1983); Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997). The procedural
requirement involved here is precisely the kind of rule that has been held to
bar our review. 4 See La. Code Crim. Proc. Ann. art. 930.4(C) (barring habeas
review of claims that a petitioner failed to raise on direct appeal); Cone v. Bell,
556 U.S. 449, 465 (2009) (holding that “[a] claim is procedurally barred when
it has not been fairly presented to the state courts for their initial
consideration”); Mathieu v. Tanner, No. 14-546, 2014 WL 5465854, at *11 (E.D.
La. Oct. 28, 2014) (holding that 930.4(C) is an independent and adequate
ground for barring federal review).
       Although “procedural default . . . is not a jurisdictional matter,” but a
“defense that the State is obligated to raise and preserv[e] if it is not to lose the
right to assert the defense thereafter,” Trest v. Cain, 522 U.S. 87, 89 (1997)
(internal quotation marks omitted) (alteration in original), we are not
prevented from raising the issue sua sponte unless the state “knowingly and
intelligently relinquishe[s]” the defense. Wood v. Milyard, 132 S. Ct. 1826,
1832 n.4, 1834 (2012). The Supreme Court distinguished between waiver and


       4 The majority opinion contends that the procedural rule before us, art. 930.4(C) of the
Louisiana Code of Criminal Procedure, may not “implicate the same comity concerns as, for
instance, the requirement that a federal habeas petitioner first fairly present his claims to
state courts.” For support, the majority opinion cites a Fifth Circuit case addressing a
different subsection, art. 930.4(A). As explained above, art. 930.4(C) is precisely the kind of
rule that implicates comity concerns—it bars claims not raised on direct appeal to the state
court, and when applied, prevents the state court from addressing such claims on the merits.
In contrast, art. 930.4(A) does not implicate these concerns because it only bars habeas claims
that have already been fully litigated in state court on direct appeal.
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                                  No. 13-30016


forfeiture in Wood to support its holding that forfeiture is insufficient to
prevent a federal court from raising sua sponte a timeliness defense. Id. at
1833–34.     The Court explained that because timeliness defenses, like
exhaustion of state remedies defenses, are “founded on concerns broader than
those of the parties,” namely comity and federalism, federal courts have
discretion to raise them sua sponte. Id. at 1833. As explained above, the
procedural defense at issue here is founded on those exact same concerns of
comity and federalism and thus requires knowing and intelligent waiver.
      Here, the state merely forfeited the procedural defense. Therefore, we
are permitted (but not required) to raise the defense sua sponte. Trest v. Cain,
522 U.S. 87, 89–90 (1997); see Smith v. Johnson, 216 F.3d 521, 523–24 (5th
Cir. 2000) (raising a procedural bar in a § 2254 case sua sponte at the appellate
level); see also United States v. Willis, 273 F.3d 592, 596 (5th Cir. 2001)
(extending this reasoning to the § 2255 context); Reed v. Thaler, 428 F. App’x
453, 454 (5th Cir. 2011); United States v. McGrew, 397 F. App’x 87, 91 (5th Cir.
2010); United States v. Robinson, 323 F. App’x 340, 341–42 (5th Cir. 2009).
There is no good reason not to raise the issue here, particularly given the
federalism and comity concerns at stake if we ignore Louisiana’s procedural
rules. This is especially appropriate here, where it is the majority opinion itself
that has raised for the first time that the state habeas court’s order was based
on a procedural bar and thus does not merit AEDPA deference.
      Accordingly, the majority opinion should have given the parties an
opportunity to consider whether that procedural default is a bar to this federal
habeas proceeding. If it is true that the state habeas court procedurally barred




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    Case: 13-30016     Document: 00512981529      Page: 31    Date Filed: 03/25/2015


                                   No. 13-30016


Robinson’s petition, we should request supplemental briefing on the effect, if
any, of the procedural bar. 5 For the foregoing reasons, I respectfully dissent.




      5 We have made similar requests in past habeas cases that might be procedurally
barred. See, e.g., United States v. Robinson, 323 F. App’x 340, 342 (5th Cir. 2009).
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