                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT



                                No. 01-30656



                         UNITED STATES OF AMERICA,

                                                             Plaintiff,
                                   VERSUS

                                 LEN DAVIS,

                                                  Defendant-Petitioner.


         On Petition for Writ of Mandamus to the United States
         District Court for the Eastern District of Louisiana

                               July 17, 2001
Before DeMOSS, PARKER and DENNIS,1 Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

     Defendant-Petitioner, Len Davis appeals the district court’s

denial of his motion to proceed pro se during the penalty phase of

his capital case and seeks, in the alternative, a writ of mandamus

compelling the district court to allow him to exercise his right of

self-representation.       The Government filed a response supporting

Davis’s request for a writ of mandamus.        The respondent district

court relies on its extensive Order and Reasons, filing nothing

further in this court.       We grant the writ.

                  I.       FACTS AND PROCEDURAL HISTORY



     1
         Judge Dennis dissents, reserving the right to file a
dissenting opinion at a later date.
     Davis was convicted of civil rights murder in violation of 18

U.S.C. §§ 241 and 242, and sentenced to death.                   On appeal, we

upheld the conviction but reversed the death sentence and remanded

for a new penalty trial.       United States v. Causey, 185 F.3d 407

(5th Cir. 1999). Upon remand, the district court appointed counsel

to represent Davis.    Davis announced to the court that he desired

to represent himself, but agreed to allow appointed counsel to

serve as “co-counsel,” so long as Davis could remain in control of

trial decisions.    Since remand, Davis has consistently taken the

position, against the advice of counsel, that he wishes to forego

the presentation of traditional mitigating evidence during the

penalty phase, indicating that he will focus instead on attacking

the strength of the government’s case as to guilt.                The district

court, as part of its competency determination, found itself

persuaded   that   “residual   doubt”   as   to    guilt    is   a   legitimate

mitigating factor appropriately argued during the penalty phase of

a capital case.

     After holding a hearing pursuant to Faretta v. California, 422

U.S. 806 (1975), the district court found that Davis’s decision to

represent himself was made knowingly and intelligently.                   However,

the district court concluded that the Faretta right to self-

representation does not extend to criminal sentencing, and even if

it does, Davis’s Faretta interests are outweighed by the Eighth

Amendment   requirement   that   the    death     penalty   not      be   imposed



                                    2
arbitrarily and capriciously.          Davis filed an interlocutory appeal

and an alternative petition for writ of mandamus.

                           II.          DISCUSSION

A.    Statutory Right to Self-Representation

      We begin by noting that Davis has a statutory right to

represent himself pursuant to 28 U.S.C. § 1654 which states, “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.”     Although Congress has clearly spoken on the issue

presented in this case, we construe the district court’s Eighth

Amendment analysis as calling into question the constitutionality

of § 1654 as it relates to the sentencing phase of capital murder

trials.     For that reason, we must address the constitutional

underpinnings of the district court’s decision.

B.    Faretta’s Focus on Individual Autonomy

      In Faretta v. California, 422 U.S. 806 (1975), the Supreme

Court held that a criminal defendant has a constitutional right to

represent himself if he voluntarily and intelligently chooses to do

so. The Court held that the Sixth Amendment affords an accused the

right to personally make his own defense because the “defendant,

and   not   his   lawyer   or    the    State,   will   bear   the   personal

consequences of a conviction.”         Id. at 834. The defendant’s choice

“must be honored out of that respect for the individual which is



                                        3
the lifeblood of the law.”            Id. (quoting Illinois v. Allen, 397

U.S.   337,    350-51      (1970)   (Brennan,    J.,     concurring))     (internal

quotation marks omitted).

C.     Does Faretta Extend to the Punishment Phase of Trial?

       Last year, the Supreme Court stated that Faretta “was confined

to the right to defend oneself at trial” and held that a defendant

does not have a right of self-representation on appeal.                    Martinez

v. Court of Appeal, 528 U.S. 152, 154 (2000).                   The Supreme Court

reasoned that “the status of the accused defendant, who retains a

presumption of innocence throughout the trial process, changes

dramatically when a jury returns a guilty verdict.”                    Id. at 162.

Furthermore,        “the   autonomy    interests       that     survive   a   felony

conviction are less compelling than those motivating the decision

in Faretta.         Yet the overriding state interest in the fair and

efficient administration of justice remains as strong as at the

trial level.”         Id. at 163.      The district court considered the

reasoning of Martinez and held that Faretta’s right to self-

representation does not extend past the guilty verdict to the

sentencing phase of a criminal trial.                  The district court was

persuaded that, assuming the constitutional basis of Faretta does

not dictate a right to self-representation, Davis should not be

allowed to pursue his preferred trial strategy because, as a matter

of   policy,    a    criminal   defendant       should    not    be   afforded   the

opportunity to interfere with the sentencing authority’s gathering


                                         4
of information on any issue relevant to choosing the correct

sentence. See FED. R. CRIM. P. 32(b)(4)(providing that a presentence

investigation   report    “must”       contain   “information     about    the

defendant’s   history    and    characteristics,      including   any     prior

criminal record, financial condition, and any circumstances that,

because they affect the defendant’s behavior, may be helpful in

imposing sentence . . . .”).

     Martinez   focuses    on    the   distinctions    between    trial    and

appellate stages of a criminal proceeding: a lay appellant has no

right to be present during appellate proceedings, Martinez, 528

U.S. at 163, and the defendant, not the state, normally initiates

appellate process.   Id. at 162.       Nothing in Martinez can be read to

push the ending point for the Sixth Amendment right of self-

representation in criminal proceedings back to the end of the

guilt/innocence phase of a bifurcated trial proceeding.

D.   Does Faretta Extend to Capital Cases?

     The district court held, in the alternative, that Davis has no

right of self-representation under Faretta, which was a non-capital

case, because the death penalty is profoundly and fundamentally

different from other punishments.          Lockett v. Ohio 438 U.S. 586,

605 (1978). Citing the Eighth Amendment requirement that the death

penalty must not be wantonly or freakishly imposed, see Furman v.

Geogia, 408 U.S. 238, 310 (1972) (Stewart, J., concurring), the

district court concluded that if Davis were allowed to represent


                                       5
himself, the jury would not be provided with adequate information

with which to make a reliable sentencing decision.    The district

court opinion makes a meticulous survey of jurisprudence relating

to the presentation of mitigating evidence during the sentencing

phase of capital-murder trials, concluding that Davis’s right to

mount his own defense in his own way must give way to the public’s

interest in avoiding arbitrary and capricious imposition of the

death penalty.     The court reasons that such interest can be

adequately served only by appointed counsel who presents a full

panoply of mitigating evidence to the sentencing jury.

     We commend the district court’s thoughtful grappling with this

issue.    However, Faretta is clear.   If Davis made a knowing and

intelligent waiver of his right to counsel, he is entitled to

represent himself.   “The right to defend is given directly to the

accused; for it is he who suffers the consequences if the defense

fails.”   Faretta, 422 U.S. at 820.

     The language and spirit of the Sixth Amendment
     contemplate that counsel, like the other defense tools
     guaranteed by the Amendment, shall be an aid to a willing
     defendant--not an organ of the State interposed between
     an unwilling defendant and his right to defend himself
     personally. To thrust counsel upon the accused, against
     his considered wish, thus violates the logic of the
     Amendment. In such a case, counsel is not an assistant,
     but a master; and the right to make a defense is stripped
     of the personal character upon which the Amendment
     insists.

Id. (footnotes omitted).

     The jury will have the benefit of whatever defense Davis



                                 6
chooses to mount, as well as any evidence the Government (charged

in this matter with seeking not the death penalty but justice)

offers.   The district court itself may interpose questions to

witnesses.   The Eighth Amendment prohibition against arbitrary and

capricious imposition of the death penalty does not prohibit a

jury, thus armed with information, from reaching a verdict.

     Based on the foregoing, we conclude that Davis has a clear and

indisputable right to mandamus relief and no adequate alternative

to mandamus exists.   See In re: American Airlines, Inc., 972 F.2d

605, 608 (5th Cir. 1992), cert. denied sub nom. Northwest Airlines,

Inc. v. American Airlines, Inc., 507 U.S. 912 (1993).   We grant the

petition, and the writ is issued to remand this action for a

sentencing hearing wherein Davis will be allowed to proceed pro se

if he wishes to do so and knowingly and intelligently waives his

right to counsel.   The district court may of course appoint stand-

by counsel for Davis if such is appropriate.

     Petition GRANTED, writ ISSUED, and action REMANDED.




                                 7
DENNIS, Circuit Judge, dissenting:



     With all due respect, I disagree not only with the majority’s

decision of the important res nova constitutional issue presented,

but also with its jurisdictional decision to issue mandamus, and

with its having done so summarily without oral argument and without

inviting an amicus curiae to advocate the interest of the people of

the United States in the fair and efficient administration of

justice in the imposition of federal capital punishment.2      The

majority has decided, probably for the first time in a federal

death penalty case, apparently without understanding the import of

its ruling, that a convicted capital defendant has an absolute

right, under the Sixth Amendment, to waive his right to counsel and

to act as his own attorney, for the purpose of either not making a

defense or making only an ineffective defense, because he prefers

a death rather than a life sentence.3   The government’s prosecutor


     2
      Fed. R. App. P. 21(b)(4)and(5) provides that when a party
petitions for mandamus, the court of appeals may invite or order
the trial-court judge to address the petition or may invite an
amicus curiae to do so; and may require additional briefing and
oral argument by the parties and amicus curiae.
     3
      In Len Davis’s pro se Response to Government’s Objection to
“Hybrid” Representation, served on May 10, 2001, he said: “I do
not beg for my life, and I am not afraid to die. I have already
informed the Court that I do not intend to present a defense at the
penalty trial, and the government has filed pleadings with the
Court stating that the decision is so bizarre that it calls into
question my mental competence.” Id. at 2. The district court, in
its Order and Reasons filed May 16, 2001, said: “In his most recent
filing with this Court, Davis stated that he does not intend to
present a defense at the penalty phase at all.” Id. at 2-3. “In

                                 8
and the defendant’s attorney, arm in arm, persuaded the majority to

reverse the trial court and authorize Len Davis to act pro se in

defenseless submission to the government’s efforts to put him to



this case, Davis has persisted in his intention that the jury not
have the benefit of any mitigating evidence in the penalty phase of
his case. Most recently, he has declared that he wants nothing
done at the penalty phase on his behalf at all. . . . Davis in
effect is appropriating to himself a judgment that only society,
through the jury in this case, can properly make.” Id. p.13. The
original brief of appellant, Len Davis, filed by his counsel in
this court on June 8, 2001, states: “At various conferences and
hearings before district court Mr. Davis announced that he did not
intend to present any evidence, or participate in any aspect of the
trial, directed toward convincing the jury that he should not
receive the death penalty. . . .       When he remained steadfast
regarding his strategy the government filed a motion to have him
examined by a psychiatrist. . . . [A]s the trial date . . . was
approaching, and the defendant remained adamant that he would not
defend against the death penalty, the trial court issued its ruling
that he could no longer serve as pro se counsel.” Id. at 5-6.
“[T]he present situation [is one] where the defendant has announced
that he does not intend to present any mitigating evidence at the
penalty trial.” Id. at 9. “Mr. Davis believes that the[] legal
issues [he plans to raise in a motion for new trial and/or Rule
2255 motion] will of necessity have to be viewed much more closely
by the district and appellate courts if he is facing a death
sentence, than they would if he were facing a life sentence. While
he has no desire to die he has weighed carefully the prospects of
a death sentence against spending the rest of his life in jail -
and he finds life in prison to be more onerous. Believing that
legal errors that led to his conviction will be examined more
scrupulously if he has a death sentence facing him, Mr. Davis made
the strategic decision that he does not want to put on mitigating
evidence in an effort to convince the jury that he should not die.”
Id. at 10-11. “[W]e believe that the legal strategy which he has
undertaken will likely result in his execution.      Conversely we
believe that if we could mount a full mitigation defense that there
is a very good possibility we could save his life. That being so,
why are we before this Court arguing a legal position which, if
successful, would likely doom our client? The answer lies in the
Faretta decision. It is his life, not ours. ‘The right to defend
is given directly to the accused; for it is he who suffers the
consequences if the defense fails.’ Faretta v. California, supra at
820.” Id. at 13.

                                 9
death.     No attorney was allowed to advocate the interest of the

people of the United States in seeing that the federal death

penalty is carried out only after a full and fair adversarial

proceeding.

       Yet, even without the benefit of adversarial representation

and oral argument, which I would have preferred that we require, I

am convinced that, given the particular circumstances of this case,

the district court reached the correct result in refusing to allow

Len Davis to waive his right to counsel, to adopt a false posture

of making a defense, and to defenselessly acquiesce in his own

death sentence.         I reach this conclusion on the facts of this

particular case, however, finding it unnecessary to decide whether

a capital defendant may waive his right to counsel and represent

himself during the sentencing phase under different circumstances.

Len Davis is seeking to represent himself, not in his defense but,

rather, for the purpose of rendering himself defenseless against

the prosecution’s efforts to impose the death penalty upon him.              He

does   not      distrust   or   lack   confidence   in   his    court-appointed

counsel.        Therefore, in this particular case, Len Davis’s Sixth

Amendment right to represent himself in his defense has become so

attenuated that it is clearly outweighed by the interest of the

people     of     the   United    States     in   the    fair   and   efficient

administration of justice in the imposition of federal capital

punishment.       See Martinez v. Court of Appeal of California, 528

U.S. 152, 163 (2000).            Thus, I agree with the district court’s

                                        10
result, although I disagree with its conclusion that, as a matter

of law, a convicted defendant can never have the right to represent

himself in the sentencing phase of a capital case.4                  If Davis were

seeking to act as his own attorney for the purpose of defending

himself against the death penalty, instead of acquiescing in it,

the balance of interests might favor upholding his right of self-

representation,           particularly   if    he   had   expressed       a   lack   of

satisfaction or trust in his appointed counsel.

       Although I am not at this time prepared to adopt all of the

district court’s profoundly thoughtful reasons, I am convinced that

the trial court’s initial approach to an analysis of the present

case       was   correct.     The   district    court     focused    first     on    the

underlying rationale of             the Supreme court’s latest decision on

Sixth Amendment right to self-representation, Martinez, id., in

weighing Len Davis’s assertion of the right against the interest of

the people of the United States in the fair administration of

justice.         Unlike the district court, however, the majority of this

court       failed   to    appreciate    the   importance    of     the   analytical

approach implied by Martinez’s rationale or its elaborations on

Faretta.


       4
      Moreover, I cannot agree with one possible interpretation of
the district court’s instructions to defense counsel at page 2 of
its order and reasons, i.e., if the instructions are interpreted as
requiring defense counsel to introduce indiscriminately all
possibly mitigative evidence or to determine the defense strategy
without any consideration of the defendant’s wishes.      I do not
think that was the district court’s intention, and I add this note
simply to express my disagreement with such a reading.

                                          11
       “As     the     Faretta         opinion     recognized,       the     right     to

self-representation is not absolute.”                  Martinez, 528 U.S. at 162.

“Even at the trial level, therefore, the government’s interest in

ensuring the         integrity        and   efficiency    of   the   trial    at   times

outweighs the defendant’s interest in acting as his own lawyer.”

Id. at 162.5         More important, the Supreme Court in Martinez held

that       “[t]he   status       of   the   accused   defendant,      who    retains    a

presumption of innocence throughout the trial process, changes

dramatically         when    a    jury      returns   a   guilty     verdict.”       Id.

Furthermore, the Court, after noting that “the Faretta majority

found that the right to self-representation at trial was grounded

in part in a respect for individual autonomy[,]” id. at 160, added


       5
       This circuit’s precedents holding that a criminal defendant’s
right to be represented by counsel of his choice may be outweighed
by the public interest in the administration of justice are closely
analogous to the situation here regarding a defendant’s right to
self-representation. First, the Sixth Amendment right to counsel,
like the right of self-representation, is not absolute. United
States v. Thier, 801 F.2d 1463, 1471 (5th Cir. 1986). Accordingly,
this court has held that “[t]he right of defendants in criminal
cases to retain an attorney of their choice does not outweigh the
countervailing    public   interest   in   the   fair  and   orderly
administration of justice.” United States v. Salinas, 618 F.2d
1092, 1093 (5th Cir. 1980). In United States v. Kitchin, 592 F.2d
900, 903 (5th Cir. 1979), the government moved to disqualify the
defendant’s attorney for a conflict of interest. The court first
noted the difficulty in the “balancing of a criminal defendant’s
right to counsel of his choice and the public’s interest in the
integrity of the judicial process and in a fair but vigorous
prosecution . . . .” Id. at 903. The court then held that “[a]
defendant’s right to counsel of his choice is not absolute and must
yield to the higher interest of the effective administration of the
courts.” Id. Likewise, in Gandy v. Alabama, 569 F.2d 1318, 1323
(5th Cir. 1978), the court held that “[t]he right to choose counsel
may not be subverted to obstruct the orderly procedure in the
courts or to interfere with the fair administration of justice.”

                                              12
that “the autonomy interests that survive a felony conviction are

less compelling than those motivating the decision in Faretta.”

Id. at 163.      Yet, the Court said, the “overriding state interest in

the     fair    and      efficient         administration     of    justice       remains”

constantly strong throughout the trial and appeal.                         Id.

      Thus, in holding that a convicted criminal defendant does not

have the federal constitutional right to represent himself on

direct appeal in Martinez, the Supreme Court’s underlying rationale

was that the Faretta balance between the innocent individual’s

autonomy       interest       and    the    State’s     interest    in    the     fair   and

efficient      administration          of    justice     begins    to    be    drastically

altered in favor of the latter when the defendant has been found

guilty beyond a reasonable doubt.                    Applying the same rationale to

the present case, I conclude that Len Davis’s autonomy interests,

which    began      to   wane       upon    his     conviction,    have    been    further

diminished by the purpose for which seeks to act as his own

attorney.      It     bears    repeating       that    his   purpose      is   neither    to

disengage from unreliable or incompetent counsel nor to make a real

adversarial criminal defense, but to ensure receiving a death

sentence by offering an intentionally ineffective defense or none

at all.    Len Davis’s claim that his death penalty will enhance the

poignancy of his post-trial remedies rings hollow as a criminal

trial defense strategy.                Ultimately, he admits that it is his

preference for a death sentence over a life term that motivates his

avoidance of a penalty trial defense in favor of a long-shot chance

                                               13
at being freed on appeal.       In any event, Len Davis has no intention

of   making    a   penalty   trial    defense     but   appears   determined     to

acquiesce in being sentenced to death.

      The right to self-representation, based on the Sixth Amendment

guarantee of access to an effective means of defense, surely tapers

to little more than an illusion and becomes completely outweighed

by   the      national    public      interest     in      fair   and     efficient

administration of justice, when the convicted defendant seeks                    to

use it not to make a defense, or to disassociate from untrustworthy

or   unsatisfactory      counsel,     but    to   render    himself     defenseless

against the death penalty.           Neither the holding nor the reasoning

in Faretta requires the recognition of a constitutional right to

self-representation by a convicted person who asserts it only for

the purpose of choosing the death penalty.              Cf. Martinez, 528 U.S.

at 163.    In requiring Davis, under these circumstances, to accept

the continued representation by an appointed counsel whom he trusts

and believes can and will effectively make a defense for him in the

penalty hearing, the district court did not deprive him of a

constitutional right.        Cf. id. at 164.

      The majority’s argument that the present case falls squarely

within the holding of Faretta is riddled with flaws.                        Faretta

asserted his right of self-representation “[w]ell before the date

of trial,” not after his conviction.               Faretta v. California, 422

U.S. 806, 807 (1975). Faretta voluntarily and intelligently waived

his right to counsel and sought to conduct his own defense because

                                        14
he believed the public defender was too “loaded down” to represent

him effectively.       Id.    He did not assert the right unintelligently

so as to ensure that he received the criminal punishment the state

sought to impose.

       In Faretta the Court made clear that the Sixth Amendment does

not guarantee Len Davis or any defendant the right to engage in a

sham    self-representation       for    the        purpose     of   abandoning   his

adversarial defense.          On the contrary, the Court held that “the

Amendment constitutionalizes the right in an adversarial criminal

trial to make a defense as we know it,” id. 818, and that that

right does not “arise[] mechanically from a defendant’s power to

waive    the   right    of    assistance       of     counsel.”        Id.   at   820.

Repeatedly, the Faretta Court explained that the right guaranteed

is not the mere form of representation or self-representation for

any purpose imaginable; the right constitutionalized by the Sixth

Amendment is    “the absolute and primary right to conduct one’s own

defense   in   propria       persona.”        Id.    at   816    (emphasis    added).

Accordingly, the Court described the right as “the right of the

accused personally to manage and conduct his own defense in a

criminal case,” id. at 817, and as the “basic right to defend

himself if he truly wants to do so.”            Id.       See also id. at 819 (The

Sixth Amendment “grants to the accused personally the right to make

his defense.”); id. at 819-820 (The right is “to make one’s defense

personally.”); id. (“The right to defend is given directly to the

accused.”); id. (describing the criminal defendant’s “right to

                                         15
defend himself personally”); id. (“[T]he right to make a defense is

[not] stripped of the personal character upon which the Amendment

insists.”); id. at 830 (discussing “the primary right of the

accused   to   defend   himself”);   id.   at   832   (same);    id.   at   835

(same)(internal quotations and citations omitted).

     Over and over, the Court makes clear in Faretta what the

majority cannot see:     the right is not to make a non-adversary non-

defense under the guise of a mere formalistic or nominal self-

representation; the right is to make a genuine adversary defense.

There is no constitutional right to mismanage, sabotage, or abandon

a defense. The right is to act as one’s lawyer, like an officer of

the court, to put on a true adversarial defense, not to flout the

dignity of the courts and the Constitution by betraying one’s

pretended cause.

     Consequently, for all of the foregoing reasons, Len Davis

failed to establish the criteria for the issuance of mandamus. See

In re American Airlines, 972 F.2d 605 (5th Cir. 1992)(“The standards

[for issuance of mandamus] are well established:                [P]etitioners

must show that they lack adequate alternative means to obtain the

relief they seek . . . and carry the burden of showing that [their]

right to issuance of the writ is clear and indisputable.”)(quoting

Mallard v. United States Dist. Ct. for the S. Dist. of Iowa, 490

U.S. 296, 309 (1989)(internal quotations and citations omitted)).

Because of the holdings and principles established by Martinez, its

further explanation of Faretta, and Faretta itself, Len Davis’s

                                     16
right to issuance of the writ is not clear and indisputable.             On

the contrary, it seems clear and indisputable that the convicted

Len Davis has no right of self representation because he seeks not

to use it for its constitutional purpose but to abuse it for the

purpose of seeking his own death.        And, even if we were to assume

arguendo that he has been prejudiced by an erroneous ruling of the

district court, Len Davis has an adequate alternative means to

obtain relief by renewing his claim of error on appeal.                 The

majority concludes that Len Davis has carried both burdens but does

not   convincingly   show   that   the   right   to   mandamus   in   these

unprecedented circumstances is “clear and indisputable,” and the

majority does not even attempt to explain why Len Davis will not be

able to obtain relief on appeal if the district court’s ruling

amounts to constitutional, reversible error.




                                    17
