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                        REVISED April 15, 2016

        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                 No. 14-30753                   United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
BOBBY D. HIGGINBOTHAM,                                           March 18, 2016
                                                                  Lyle W. Cayce
             Petitioner - Appellant                                    Clerk

v.

STATE OF LOUISIANA,

             Respondent - Appellee




                Appeals from the United States District Court
                    for the Western District of Louisiana


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:
      Petitioner–Appellant Bobby Higginbotham was convicted by a jury of
malfeasance in office and felony theft in Louisiana state court. Higginbotham
petitions this court for federal habeas relief pursuant to 28 U.S.C. § 2254,
contending that he was denied meaningful appellate review because of an
incomplete trial transcript and that he was denied his right to counsel at trial.
The state appellate court held that there was no error on either point. Because
Higginbotham fails to show that the state court’s decision was contrary to
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clearly established law or based on an unreasonable determination of the facts,
we AFFIRM the judgment of the district court denying the § 2254 petition.
          I.   FACTUAL AND PROCEDURAL BACKGROUND
      Petitioner–Appellant Bobby Higginbotham was charged with one count
of public contract fraud, one count of malfeasance in office, and one count of
felony theft, arising out of actions taken by Higginbotham during his tenure as
mayor of Waterproof, Louisiana. 1 Louisiana v. Higginbotham, 122 So. 3d 1, 5
(La. Ct. App. 2012). Early in the state court proceedings, the state trial court
disqualified Higginbotham’s original counsel based on a conflict of interest.
Higginbotham told the court that another attorney would represent him, but
that attorney withdrew as counsel before the scheduled trial date of October
26, 2009. 2 Higginbotham thereafter “sought numerous continuances of the
case relating to his purported unsuccessful efforts to obtain counsel.” Id. at 6.
The court ultimately continued the trial to March 29, 2010, and ordered
Higginbotham to appear on February 24, 2010, “with enrolled counsel or
inform the court at that time if [he] intend[ed] to represent himself.”
      At the February status conference, Higginbotham refused to answer
whether he intended to enroll counsel, and the trial court appointed a public
defender to assist, but not to formally represent, Higginbotham. The week
before trial, the prosecution provided its discovery materials to Higginbotham.
Higginbotham filed a continuance motion, arguing that he had insufficient
time to review the discovery materials before the trial date. On the day that
the trial was set to begin, the court conducted a hearing where Higginbotham



      1  Higginbotham was originally charged with twenty-one counts of felony theft,
eighteen counts of malfeasance, four counts of public salary reduction, and one count of
unauthorized use of a movable, but the prosecution later amended the indictment to dismiss
those additional counts.
       2 Higginbotham informed the court that a different attorney would thereafter enroll

as counsel of record, but that attorney never formally enrolled.
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indicated that he intended to retain an attorney and would need the trial
continued for an additional 60 days. The court denied the motion, however,
noting that a defendant could not manipulate the proceedings to cause further
delay.       Higginbotham thereafter filed an emergency application for a
supervisory writ with the state appellate court on the continuance issue. Once
trial began, Higginbotham represented himself during voir dire and during the
majority of the trial, with an attorney from the Public Defender’s Office
assisting Higginbotham as standby counsel. 3
         On April 1, 2010, the state appellate court stayed the trial proceedings,
and on April 8, 2010, granted Higginbotham’s writ application, granting a
recess to allow Higginbotham to review the discovery materials and prepare a
defense. During the recess, Higginbotham retained counsel and discovered
that the testimony of two prosecution witnesses was not recorded.
Higginbotham moved for a mistrial, and the trial court denied that motion.
Higginbotham sought another writ with the state appellate court, and the
higher court granted Higginbotham’s writ application in part, declaring a
mistrial with respect to only the public contract fraud count. The state trial
court granted the partial mistrial accordingly, and trial on the remaining
charges resumed on May 19, 2010.
         The jury unanimously convicted Higginbotham of the remaining two
charges: malfeasance in office and felony theft. He was sentenced to five years
of hard labor, two years suspended, for malfeasance and seven years hard
labor, three years suspended, for felony theft. His convictions and sentence
were initially reversed by the state appellate court, but were affirmed on
rehearing. Higginbotham, 122 So. 3d at 17, 34. The Louisiana Supreme Court



        Higginbotham requested that an attorney from the Public Defender’s Office be
         3

appointed as his counsel, but the trial court found that he was financially ineligible.
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denied his application for a writ of certiorari. Louisiana v. Higginbotham, 116
So. 3d 658 (La. 2013) (mem.).
       Higginbotham then filed the instant application pursuant to 28 U.S.C.
§ 2254. 4    The magistrate judge issued a report and recommendation,
recommending the district court deny Higginbotham’s § 2254 petition. The
district court adopted the magistrate judge’s report and recommendation,
denied Higginbotham’s § 2254 petition, and denied Higginbotham’s initial
request for a certificate of appealability.          Ultimately, Higginbotham was
granted a certificate of appealability on two issues: (1) whether he was denied
meaningful appellate review because of the missing trial transcripts and
(2) whether he was denied the right to counsel during trial.
                        II.     STANDARD OF REVIEW
       “We review the district court’s findings of fact for clear error and review
its conclusions of law de novo, applying the same standard of review to the
state court’s decision as the district court.” Ortiz v. Quarterman, 504 F.3d 492,
496 (5th Cir. 2007).          Pursuant to the Antiterrorism and Effective Death
Penalty Act (AEDPA), Higginbotham is not entitled to federal habeas relief
unless the state court’s adjudication of his claim:
       (1) resulted in a decision that was contrary to, or involved an
       unreasonable application of, clearly established Federal law, as
       determined by the Supreme Court of the United States; or
       (2) resulted in a decision that was based on an unreasonable
       determination of the facts in light of the evidence presented in the
       State court proceeding.

28 U.S.C. § 2254(d)(1)–(2).




       4 Although Higginbotham did not pursue state habeas remedies after direct appeal,
the exhaustion requirement in 28 U.S.C. § 2254(b)(1) is satisfied after a petitioner pursues
his claims to the highest court on direct appeal. See Bledsue v. Johnson, 188 F.3d 250, 254
n.8 (5th Cir. 1999).
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      “The question under AEDPA is not whether a federal court believes the
state court’s determination was incorrect but whether that determination was
unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007). 5 “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
the correctness of the state court’s decision.” Harrington v. Richter, 562 U.S.
86, 101 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
Accordingly, “a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there
was an error well understood and comprehended in existing law beyond any
possibility for fairminded disagreement.” Id. at 103.
               III.    INCOMPLETE TRIAL TRANSCRIPT
       Higginbotham first contends that missing portions of the trial transcript
violated his right to due process because he lacked the opportunity for
meaningful appellate review of two claims: (1) that evidence from his dismissed
count was used to prove his guilt on the other counts and (2) that he was denied
a peremptory strike. “The right of an accused in a criminal trial to due process
is, in essence, the right to a fair opportunity to defend against the State’s
accusations.” Chambers v. Mississippi, 410 U.S. 284, 294 (1973). Accordingly,
“if a State has created appellate courts as ‘an integral part of the . . . system
for finally adjudicating the guilt or innocence of a defendant,’ the procedures
used in deciding appeals must comport with the demands of the Due Process
and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 469 U.S.
387, 393 (1985) (alteration in original) (citation omitted) (quoting Griffin v.
Illinois, 351 U.S. 12, 18 (1956)). However, “a complete verbatim transcript” is


      5  “Under AEDPA, we review ‘the last reasoned state court decision.’” Batchelor v.
Cain, 682 F.3d 400, 405 (5th Cir. 2012) (quoting Wood v. Quarterman, 491 F.3d 196, 202 (5th
Cir. 2007)).
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                                     No. 14-30753
not always required to ensure that a defendant’s right to meaningful appellate
review is satisfied. See Moore v. Wainwright, 633 F.2d 406, 408 (5th Cir. 1980)
(“[T]he state is not obligated to automatically supply a complete verbatim
transcript.”). Accordingly, the record is “adequate for full appellate review” so
long as it contains the portions necessary to address the alleged errors below.
Schwander v. Blackburn, 750 F.2d 494, 497–98 (5th Cir. 1985) (quoting State
v. Francis, 345 So. 2d 1120, 1125 (La. 1977)). Moreover, claims based on
incomplete transcripts must show that “the absence of such a transcript
prejudiced [the defendant’s] appeal.” Mullen v. Blackburn, 808 F.2d 1143,
1146 (5th Cir. 1987). 6
      Higginbotham fails to show that the missing portions of the transcript
prejudiced his appeal as to either claim. First, there was no prejudice as to the
“other crimes” evidence because the state appellate court held that the
evidence was admissible under the Louisiana rules of evidence and therefore
“[t]here was no abuse of the trial court’s discretion.” Higginbotham, 122 So. 3d
at 23; see also Fairman v. Anderson, 188 F.3d 635, 641 (5th Cir. 1999) (“[L]egal
conclusions that are explicitly grounded in state law may not be reviewed on
federal habeas.”). Moreover, the state appellate court held that “[t]he evidence
of defendant’s guilt of the remaining two counts was overwhelming and the
guilty verdicts were surely unattributable to any error.” Higginbotham, 122
So. 3d at 22. Higginbotham has not shown that this holding was based on an
“unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).




      6 Higginbotham relies on Hardy v. United States, 375 U.S. 277, 278–79 (1964), and its
progeny for the argument that the entire trial transcript is constitutionally required.
However, the Supreme Court in Hardy only addressed “the statutory scheme [under the
Court Reporter Act, 28 U.S.C. § 753] and d[id] not reach a consideration of constitutional
requirements.” Id. at 282. Moreover, Hardy concerned “the federal system,” not a state
criminal trial. Id. at 278.
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                                   No. 14-30753
      Second, as to Higginbotham’s claim that he was denied a peremptory
strike, the state appellate court concluded that, as a matter of fact, the parts
of the record that were not missing did “not show that the trial court’s count of
peremptory     challenges      [used   by   Higginbotham]     [wa]s    incorrect.”
Higginbotham, 122 So. 3d at 33. As the state appellate court recognized, the
record clearly shows Higginbotham using five of his six peremptory challenges,
and while not reflected expressly in the record, that court found that “the
record strongly suggests that [Higginbotham] exercised a peremptory
challenge to excuse” a sixth venireperson. Id. at 32–33. Higginbotham fails
to show how this was an “unreasonable determination of the facts” by the state
appellate court, 28 U.S.C. § 2254(d)(2), and therefore we must presume this
factual determination is correct. 28 U.S.C. § 2254(e)(1). Higginbotham is
therefore not entitled to federal habeas relief on his claims based on an
incomplete trial transcript.
                      IV.      RIGHT TO COUNSEL
      Higginbotham also contends that he was denied his right to counsel
during trial. The state appellate court held that Higginbotham implicitly had
waived his right to counsel through his dilatory tactics of “deliberate[ly]
attempt[ing] . . . to disrupt the orderly proceedings.” Higginbotham, 122 So.
3d at 27. The Sixth Amendment guarantees defendants a right to counsel at
all critical stages of trial. United States v. Cronic, 466 U.S. 648, 659 (1984).
While the Supreme Court held that defendants can affirmatively waive their
right to counsel under the Sixth Amendment in Faretta v. California, 422 U.S.
806, 833–35 (1975), Faretta did not address implied waiver of counsel due to
dilatory tactics by a defendant, and the Supreme Court does not appear to have
addressed this issue or a “materially indistinguishable” set of facts, Price v.
Vincent, 538 U.S. 634, 640 (2003) (quoting Williams v. Taylor, 529 U.S. 362,
406 (2000)). The state appellate court’s decision thus is not “contrary to” or an
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                                        No. 14-30753
unreasonable application of clearly established law. 28 U.S.C. § 2254(d)(1).
Moreover, this court has previously indicated that dilatory tactics can
constitute an implied waiver of the right of counsel. See, e.g., United States v.
Fowler, 605 F.2d 181, 183 (5th Cir. 1979) (holding that the right to counsel
“may not be put to service as a means of delaying or trifling with the court”
and that failing to retain counsel may “operate[] as a waiver . . . even when the
failure resulted in a pro se defense” (citation omitted)). 7
       Higginbotham also fails to show that the state appellate court’s finding
of dilatory tactics was unreasonable. As the state appellate court found, the
trial court instructed Higginbotham on obtaining an attorney, but he failed to
obtain an attorney before his next appearance and declined to answer why he
lacked counsel. Higginbotham, 122 So. 3d at 27. Higginbotham does not show
that this factual conclusion is an “unreasonable determination.” 28 U.S.C.
§ 2254(d)(2). And even if we would have held differently based on those facts,
we cannot characterize a state court’s factual determination as “unreasonable
merely because [we] would have reached a different conclusion in the first
instance.” 8 Wood v. Allen, 558 U.S. 290, 301 (2010). Higginbotham is therefore
not entitled to federal habeas relief on his right to counsel claim.




       7  While Faretta requires that the court ensure a defendant voluntarily, knowingly,
and intelligently waived his or her right to counsel, Faretta, 422 U.S. at 835, a formal colloquy
is not required; instead, we “evaluate the circumstances of each case as well as the
background of the defendant” to determine whether there has been an effective waiver of the
right to counsel. Wiggins v. Procunier, 753 F.2d 1318, 1320 (5th Cir. 1985). Based on the
trial court record, Higginbotham effectively waived his right to counsel through his actions
undertaken during the pre-trial proceedings and his “aware[ness] of the dangers and
disadvantages of self-representation.” Faretta, 422 U.S. at 835.
        8 Moreover, Higginbotham “sought numerous continuances of the case relating to his

purported unsuccessful efforts to obtain counsel,” Higginbotham, 122 So. 3d at 6, and the
trial was ultimately continued for five months after its initial October 2009 start date. See
Fowler, 605 F.2d at 183 (noting that only twenty days in certain circumstances is “a
reasonable time in which to retain counsel and that failure to do so operated as a waiver”).
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                          V.   CONCLUSION
     For the foregoing reasons, we AFFIRM the judgment of the district court
denying Higginbotham’s 28 U.S.C. § 2254 petition.




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