        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                                No. 13-30016
                                                               United States Court of Appeals
                                                                        Fifth Circuit

                                                                      FILED
JAMAHA ROBINSON,                                                   July 1, 2015
                                                                 Lyle W. Cayce
            Petitioner–Appellant,                                     Clerk

v.

STATE OF LOUISIANA,

            Respondent–Appellee.




                Appeal from the United States District Court
                   for the Eastern District of Louisiana
                            USDC 2:12-CV-749


                     ON THE COURT’S OWN MOTION
        (Opinion March 25, 2015, ___ F. App’x ___, 2015 WL 1323334)


Before PRADO, ELROD, and GRAVES, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:
      The Court having been polled at the request of one of its members, and
a majority of the judges who are in regular active service and not disqualified
not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), rehearing en
banc is DENIED. In the en banc poll, seven judges voted in favor of rehearing
(Judges Jolly, Jones, Smith, Clement, Owen, Elrod, and Southwick) and eight
                                No. 13-30016
judges voted against rehearing (Chief Judge Stewart and Judges Davis,
Dennis, Prado, Haynes, Graves, Higginson, and Costa).
      Rehearing en banc is DENIED. Judge Smith, joined by Judges Jones,
Clement, and Elrod, dissents from the Court’s denial of rehearing en banc, and
his dissent is attached.


ENTERED FOR THE COURT
 /s/ Edward C. Prado
United States Circuit Judge
                                  No. 13-30016
JERRY E. SMITH, Circuit Judge, joined by EDITH H. JONES, EDITH
BROWN CLEMENT, and JENNIFER WALKER ELROD, Circuit Judges, dis-
senting from the denial of rehearing en banc:
      Rehearing has failed by only one vote. That is remarkable for a case
submitted without oral argument, resulting in an opinion that is unpublished,
in response to which the State of Louisiana failed to file a petition for rehearing
en banc.
      Judge Elrod’s compelling dissent, pointing out that the state habeas
court had unequivocally adjudicated Robinson’s claim on the merits, should
have alerted the parties that the Fifth Circuit was giving close attention to the
case. Yet the state remained mute.
      It is indisputably more difficult to attract the attention of a majority of
the judges where the request for an en banc poll is sua sponte and not in
response to a petition for rehearing en banc. The natural default is that in an
adversarial system of justice, the court should not devote its considerable
en banc resources to a case in which the losing party declines to press its case
beyond an unsuccessful result from the panel. Here, nonetheless, seven of the
fifteen active judges evidently view the panel majority as having committed
error so serious that the rare invocation of the entire court is needed. Indeed,
it is likely that other judges, in addition to the seven, find reversible error in
the majority opinion but have elected to let it stand only because the state
defaulted in the defense of its previously stated position.
      The panel majority’s obvious error cries out for correction. The entire
case, on collateral review, turns on the discrete question whether the trial
judge’s habeas ruling—on whether Robinson had adequately waived the right
to counsel—was “on the merits” and thus subject to AEDPA deference.
                                    No. 13-30016
Throughout these proceedings, both sides treated the state court’s habeas deci-
sion as being on the merits, which is not surprising, given that that court ruled
as follows:
              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.
That statement is obviously a ruling on the merits (reasoning that Robinson
had appointed counsel present to observe and available to assist), followed by
a separate and alternative holding that the issue was procedurally defaulted
(because it had not been raised).
      Even the panel majority does not deny that if the order had ended with
the first sentence, the ruling would be on the merits. The second sentence,
separated from the first by a period, cannot reasonably be understood as cast-
ing the first into ambiguity. The majority’s conclusion that the ruling, as a
whole, is “ambiguous” is thus unsustainable. And the en banc court has failed
by only one vote to undertake a rehearing to correct that evident error.
      This opinion is enbancworthy because, even though unpublished, it
infects our entire habeas jurisprudence by clouding what is meant by “ambigu-
ous” in the context of merits declarations as distinguished from announce-
ments of procedural default. It remains to be seen whether the State of Loui-
siana will file a petition for writ of certiorari, though the likelihood of success
by that means is statistically much less than were the state’s chances had it
sought review by the en banc court.
      I respectfully dissent.
