     Case: 14-50345      Document: 00513788248         Page: 1     Date Filed: 12/07/2016




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

                                      No. 14-50345                        FILED
                                                                   December 7, 2016
                                                                     Lyle W. Cayce
MAURICE A. MOSES, SR.,                                                    Clerk

              Petitioner-Appellee Cross-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

              Respondent-Appellee Cross-Appellee




                  Appeals from the United States District Court
                        for the Western District of Texas
                             USDC No. 5:13-CV-280


Before HIGGINBOTHAM, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Maurice A. Moses, Sr. has applied for federal habeas corpus relief,
claiming he was denied his right to self-representation, as defined in Faretta
v. California, 422 U.S. 806 (1975), and his right to effective assistance of
appellate counsel, see Blanton v. Quarterman, 543 F.3d 230, 243 (5th Cir.
2008).     The district court denied Moses’s self-representation claim as



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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procedurally barred, but granted relief on the claim that appellate counsel
rendered ineffective assistance by failing to raise a Faretta claim. The parties
filed cross-appeals. For the reasons discussed below, we AFFIRM the district
court’s holding in part, as Moses’s Faretta claim is procedurally barred for
purposes of federal habeas review, and REVERSE in part because the state
habeas court’s denial of Moses’s ineffective assistance of appellate counsel
claim was not contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court of the United
States.
                                       I
      Moses was charged with capital murder and opted to go to trial. After
the jury was selected, but before its members were sworn, Moses’s attorney
informed the trial judge that Moses wished to proceed pro se. The trial judge
admonished Moses about the dangers of self-representation, particularly in a
capital case, and expressed grave concerns about Moses’s ability to represent
himself given his eleventh-grade education. Moses reasserted his desire to
represent himself, to which the court responded that although he was “not
making a judgment at [that] point,” he was not convinced Moses was capable
of representing himself. After additional back-and-forth on the question, the
colloquy concluded:
      THE COURT: [. . .] [F]rankly, given your education or lack thereof,
      I am not confident—you have not convinced me at this point that
      you’re competent to represent yourself. So having said that, let’s
      all sleep on it, take a break and talk to you tomorrow morning at
      nine o’clock.
      THE DEFENDANT: So the comments that you have are
      irrelevant, sir?
      THE COURT: That’s it for now.



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Despite the trial judge’s suggestion that the parties “sleep on it,” neither the
judge, Moses, Moses’s counsel, nor the prosecution brought up Moses’s stated
desire to represent himself again. Moses was represented at trial by counsel.
The jury found him guilty of capital murder and Moses was sentenced to life
in prison.
      Moses’s conviction was affirmed on direct appeal. He did not raise a
Faretta claim on appeal. Moses filed a state habeas corpus petition arguing,
inter alia, that he had been improperly denied his right to self-representation
and to effective assistance of appellate counsel. The trial-level state habeas
court concluded that Moses’s Faretta claim was barred under state procedural
rules because Moses had failed to raise it on appeal. The court considered the
merits of Moses’s ineffective assistance of appellate counsel claim and
concluded that appellate counsel had not rendered ineffective assistance by
failing to challenge the denial of Moses’s right to proceed pro se. The court
concluded that because the claim was not clearly stronger than those appellate
counsel raised, counsel was not ineffective for failing to brief the Faretta claim.
The court found that the trial judge had discretion to deny Moses’s request
because it had been made untimely—after voir dire had taken place. The court
held in the alternative that Moses had waived his right to self-representation
by failing to reassert it and by proceeding to trial with counsel, as the trial
judge merely discouraged Moses from representing himself without explicitly
denying the request. On appeal, the Texas Court of Criminal Appeals (TCCA)
denied Moses’s state habeas petition without written order on the findings of
the lower court.
      Moses subsequently filed a federal habeas petition. The district court
denied Moses’s Faretta claim as procedurally defaulted, but granted habeas
relief on his ineffective assistance of appellate counsel claim. The district court


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determined that the state habeas court made “an unreasonable determination
of the facts in light of the record” when it concluded that the trial court could
have reasonably found that Moses waived his right to self-representation when
he failed to reassert it.   The district court also concluded that there was no
support in the law for the state habeas court’s holding that Moses’s request
was untimely because it was made after voir dire. Furthermore, the district
court noted that an affidavit submitted by Moses’s appellate attorney revealed
she was unaware Moses had requested to represent himself, thereby indicating
she had failed to familiarize herself with the record. The district court held
that “the state habeas court’s implicit determination that counsel’s total failure
to familiarize herself with the record in this case was not deficient was an
unreasonable application of the Strickland standard to the facts in this case.”
Accordingly, the district court concluded there was a substantial likelihood a
Faretta claim would have succeeded on direct appeal and granted Moses
habeas relief on his ineffective assistance of appellate counsel claim.
                                        II
      In a habeas corpus appeal, this court reviews a district court’s findings
of fact for clear error and its conclusions of law de novo. Martinez v. Johnson,
255 F.3d 229, 237 (5th Cir. 2001). Under the Antiterrorism and Effective
Death Penalty Act (AEDPA), Moses can obtain federal habeas relief only if his
adjudication in state court “(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.” Robertson v. Cain,
324 F.3d 297, 302 (5th Cir. 2003) (quoting 28 U.S.C. § 2254(d)(1)-(2)). “[A]
habeas court must determine what arguments or theories supported or . . .


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could have supported, the state court’s decision; and then it must ask whether
it is possible fairminded jurists could disagree that those arguments or theories
are inconsistent with the holding in a prior decision of [the Supreme] Court.”
Harrington v. Richter, 562 U.S. 86, 102 (2011). “AEDPA thus imposes a highly
deferential standard for evaluating state-court rulings, and demands that
state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S.
766, 773 (2010) (citations and internal quotation marks omitted). Federal
courts reviewing habeas applications premised on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984), are
“doubly” deferential: “When § 2254(d) applies, the question is not whether
counsel’s actions were reasonable[;] [t]he question is whether there is any
reasonable argument that counsel satisfied Strickland’s deferential standard.”
Harrington, 562 U.S. at 105.
                                       III
      The TCCA denied habeas review of Moses’s self-representation claim
because Moses failed to raise this claim on direct appeal. A federal habeas
court has no power to review a state court’s decision not to address a prisoner’s
federal claims if the state court made that decision on the basis of independent
and adequate state procedural grounds. See Coleman v. Thompson, 501 U.S.
722, 729-30 (1991). This court has specifically held that the Texas requirement
“that a petitioner must raise a claim on direct appeal before it can be raised on
state habeas . . . is an adequate state ground capable of barring federal habeas
review.” Scheanette v. Quarterman, 482 F.3d 815, 827 (5th Cir. 2007) (citations
and internal quotation marks omitted). The district court thus did not err in
holding that procedural default bars federal habeas review of Moses’s
underlying Faretta claim.




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      By virtue of Moses’s procedural default, this court cannot review the
merits of his Faretta claim unless Moses can demonstrate cause for the default
and actual prejudice due to the alleged violation of federal law. See Coleman,
501 U.S. at 750. When afforded liberal construction, Moses’s briefs on appeal
include an argument that his ineffective assistance of appellate counsel claim
supplies the cause and prejudice required to overcome the procedural default.
See, e.g., Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (“The filings
of a federal habeas petitioner who is proceeding pro se are entitled to the
benefit of liberal construction.”). However, “[w]e have repeatedly held that a
contention not raised by a habeas petitioner in the district court cannot be
considered for the first time on appeal from that court’s denial of habeas relief.”
Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999) (quoting Johnson v.
Puckett, 930 F.2d 445, 448 (5th Cir. 1991)). Nor will we generally consider an
argument raised for the first time in a certificate of appealability (COA)
application to the district court. Roberts v. Cockrell, 319 F.3d 690, 695 (5th
Cir. 2003); cf. Coleman v. Quarterman, 456 F.3d 537, 546 (5th Cir. 2006)
(refusing to consider argument which was raised for the first time in a post-
judgment motion in the district court).       Moses did not argue cause and
prejudice in support of his § 2254 application, raising this argument for the
first time in the district court in support of his motion for a COA. Because
Moses failed to properly raise this argument below, we will not consider it on
appeal.
                                        IV
      The district court granted habeas relief on Moses’s ineffective assistance
of appellate counsel claim after concluding that the state habeas court made
unreasonable findings of fact and unreasonably applied Strickland to those
facts. To establish a claim for ineffective assistance of appellate counsel, an


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applicant must show (1) “counsel’s representation ‘fell below an objective
standard of reasonableness’” and (2) “but for his counsel’s deficient
performance, there is a reasonable probability that the outcome of the
proceeding would have been different.” Blanton, 543 F.3d at 235 (quoting
Strickland, 466 U.S. at 688, 694). The TCCA held that Moses was unable to
satisfy either Strickland prong because his Faretta claim was not clearly
stronger than the issues appellate counsel raised on appeal and there was no
reasonable probability Moses would have prevailed had his attorney urged
such a claim. The TCCA offered two alternative reasons for its conclusion: (1)
Moses had not timely asserted his right to self-representation; and (2) Moses
had waived the right by proceeding to trial with his appointed counsel.
      The Sixth Amendment affords a criminal defendant the right to self-
representation. Faretta, 422 U.S. at 819. “[T]he denial of the right to self-
representation constitutes a structural error that is not subject to harmless
error review and instead requires automatic reversal.” Batchelor v. Cain, 682
F.3d 400, 405 (5th Cir. 2012) (citing McKaskle v. Wiggins, 465 U.S. 168, 177
n.8 (1984)). The Supreme Court has made clear, however, that “the right of
self-representation is not absolute,” Indiana v. Edwards, 554 U.S. 164, 171
(2008), and has noted with approval that “most courts require [a defendant to
elect self-representation] in a timely manner.” Martinez v. Court of Appeal of
Cal., Fourth Appellate Dist., 528 U.S. 152, 162 (2000) (footnote omitted). The
Court explained, “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. The Court has not, however, made clear at what point a
request for self-representation becomes sufficiently untimely that a trial judge
could deny the request without running afoul of the Sixth Amendment. See
Miller v. Thaler, 714 F.3d 897, 903 n.5 (5th Cir. 2013). Thus, no Supreme Court


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case contradicts the state habeas court’s holding that Moses did not timely
request permission to proceed pro se.         Accordingly, the decision was not
contrary to or an unreasonable application of clearly established federal law,
as determined by the Supreme Court. See § 2254(d)(1); Kane v. Garcia Espitia,
546 U.S. 9, 10 (2005).     The district court’s error in holding otherwise is
underscored by circuit court decisions.
      Moses relies heavily on Chapman v. United States, 553 F.2d 886 (5th Cir.
1977), for the proposition that a request for self-representation is untimely only
if made after a jury has already been sworn. Chapman does in fact state: “If
there is to be a Rubicon beyond which the defendant has lost his unqualified
right to defend pro se, it makes far better sense to locate it at the beginning of
defendant’s trial, when the jury is empaneled and sworn . . . .” Id. at 894.
Moses first voiced his desire to proceed pro se after the jury was selected but
before it was sworn. The issue in Chapman, however, was whether a demand
for self-representation was untimely when made after defense counsel had
declared himself “ready for trial” but before the jury had been empaneled. Id.
at 887. This court held the demand timely, but did not have occasion to
consider whether the same would have been true had the demand been made
between the empaneling and the swearing of the jury.            See id.   In fact,
Chapman’s explicit holding was “that a demand for self-representation must
be honored as timely if made before the jury is selected, absent an affirmative
showing that it was a tactic to secure delay.” Id. Under Chapman, Moses’s
demand for self-representation was not plainly timely because it was made
after the jury was selected.     See id.      In any event, Chapman does not
definitively establish this circuit’s position, much less the Supreme Court’s
position, on whether a request for pro se defense made after the jury has been




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selected is timely beyond fairminded disagreement. See Harrington, 562 U.S.
at 102.
       Furthermore, this court has previously held that federal habeas relief
was not appropriate where a state habeas court had determined a defendant’s
request to proceed pro se to be untimely because the request had been made
“only a few hours before jury selection.” Miller, 714 F.3d at 903 n.5 (emphasis
added). Here, Moses demanded to present his own defense only after the jury
had been selected. Miller supports the state habeas court’s position that the
district court had discretion to deny Moses’s request to proceed pro se because
the request was made after the jury had been selected. See id. Other circuits
have come to similar conclusions. See, e.g., Hill v. Curtin, 792 F.3d 670, 674,
679 (6th Cir. 2015) (en banc) (refusing to grant habeas relief on Faretta claim
because defendant requested self-representation on the first day of trial, before
jurors had been empaneled); United States v. Bishop, 291 F.3d 1100, 1114 (9th
Cir. 2002) (“In cases involving jury trials, we have held that a request is timely
if made before the jury is selected or before the jury is empaneled, unless it is
made for the purpose of delay.”); United States v. Young, 287 F.3d 1352, 1354-
55 (11th Cir. 2002) (holding that defendant’s request to proceed pro se was
untimely when made after the jury was empaneled but before it was sworn).
At the very least, the law on this point is not clearly established, and the
district court therefore erred when it held the state habeas court unreasonably
applied clearly established federal law. 1




       1 The TCCA alternatively held that Moses’s appellate counsel was not ineffective for
failing to present a Faretta claim because Moses had waived his right to proceed pro se.
Because we find that the timeliness ground was a sufficient basis for denying Moses’s claim,
we need not address the TCCA’s alternative holding.
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                                    V
     For the aforementioned reasons, we AFFIRM the denial of habeas corpus
relief on Moses’s Faretta claim, and REVERSE the district court’s grant of
habeas corpus relief on Moses’s ineffective assistance of appellate counsel
claim.




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