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

                                                                                FILED
                                                                             October 21, 2011

                                          No. 10-31073                        Lyle W. Cayce
                                                                                   Clerk

KELVIN LANDRY,

                                                      Petitioner–Appellee,
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY; JAMES D.
CALDWELL, JR.,

                                                      Respondents–Appellants.



                       Appeal from the United States District Court
                           for the Middle District of Louisiana
                                 USDC No. 3:09-CV-263


Before JONES, Chief Judge, HAYNES, Circuit Judge, and ENGELHARDT,
District Judge.*
PER CURIAM:**
        Kelvin Landry, convicted of second-degree murder and possession of a
firearm by a convicted felon in Louisiana state court, was granted federal habeas
relief by the district court after having been denied such relief by the Louisiana
state courts.        The district court held that Landry did not knowingly and


        *
            District Judge of the Eastern District of Louisiana, sitting by designation.
       **
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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                                  No. 10-31073

intelligently waive his right to counsel in the course of exercising his right to
self-representation at trial. The State of Louisiana has appealed. Because we
hold that the trial court’s inquiry was sufficient, we reverse the district court’s
grant of habeas relief.
                                         I
                                        A
      Kelvin Landry shot and killed Larry Porch, resulting in his conviction in
Louisiana state court for second-degree murder and possession of a firearm by
a convicted felon. During his trial, Landry was found to have waived his right
to counsel so that he could represent himself. This appeal arises from Landry’s
complaints about the effectiveness of his waiver of counsel.
      Prior to the State calling its final witness in its case in chief, Landry’s
appointed counsel notified the court that Landry had indicated a desire to take
over his own defense. Outside the jury’s presence, the trial judge addressed
Landry directly and, at the outset, confirmed that Landry understood that he
had no duty to “say anything or do anything” at trial, that anything he said could
be used against him, and that he had the right to representation by counsel. The
judge conveyed to Landry that it was his “sincere advice being a judge and
practicing law for thirty years to caution [Landry] that the procedures of [the]
courtroom and the law is better dealt with by attorneys than a layperson.”
      Initially, Landry gave the impression that he merely sought to testify, but
his counsel clarified that Landry had “insisted that he needed to make some type
of statement to the jury or act as his own counsel.” What followed was a
disjointed discourse between the trial judge and Landry in which the judge
attempted to obtain confirmation from Landry that his appointed counsel
continued to represent him at trial. After several indirect answers, Landry
ultimately replied, “Yes, they’re my attorneys.” During the colloquy, the judge
explained that Landry’s counsel would speak for him at trial, but that it would

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                                  No. 10-31073
ultimately be up to Landry whether to testify. Also, the judge twice suggested
that it would be in Landry’s best interest to follow his counsel’s advice.
      This did not resolve the matter because, when the jury returned, Landry’s
counsel expressed concern that Landry had not been sufficiently apprised of his
right to self-representation. With the jury once again removed, the trial judge
again addressed Landry.       He reiterated that Landry had the right to
representation by an appointed attorney, and he stated that the “three just and
qualified attorneys” appointed to represent Landry had done so “in a very
competent and capable manner.” Landry was then advised that he had the right
to represent himself if he so wished, although the judge twice advised him
against doing so. When asked whether he understood his right to represent
himself, Landry replied, “Yeah, I’m going to take that right up today to represent
myself because, you know, my life is on the line here.”
      At this point, the trial judge explained the procedures with which Landry
would have to comply while representing himself and, on several occasions, the
judge reconfirmed that Landry intended to represent himself.           The judge
explained that courtroom procedures were subject to his discretion and that
Landry would not be permitted to “badger witnesses,” “badger [the] jury,”
“narrate,” or “testify from down there.” While Landry would be permitted to do
what he felt he needed to do “in an orderly fashion,” and he could look at any
evidence, he would not be permitted to touch the gun. Additionally, the judge
informed Landry that he retained the right not to testify and that the jury could
not use his failure to do so against him. Landry indicated an understanding of
these matters. Landry was advised that representing himself was “against [the
judge’s] advice and probably against [Landry’s] previous attorney’s advice.”
Furthermore, the judge said he would “highly suggest” Landry consult the
assistance of his appointed counsel who would be ordered to assist him if he so
wished.

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                                  No. 10-31073
       Subsequently, when the court had moved on to the matter of the State’s
next witness, Landry’s responses to inquiries from the judge appear to have led
the judge to once again briefly explain the courtroom process. The judge made
clear that Landry would not be permitted to talk continuously in the jury’s
presence—he would have to ask questions and take the witnesses’ answers. It
was explained that the State would call its next witness and, after the State
rested, Landry would be permitted to call witnesses of his own. The judge also
explained the assistance that Landry would receive from his former counsel in
their new role as his standby counsel. They were ordered to assist Landry if he
requested assistance or if they noticed something obvious.         Following the
explanation, Landry indicated his understanding of the assistance he would
receive.
       Before bringing the jury back for a second time, the judge once again
sought confirmation that Landry intended to represent himself. Landry replied,
“Yeah,” but then indicated he wanted to do so with the assistance of his
previously appointed counsel. Again, the judge sought clarification. This time
he asked whether Landry wanted to do the questioning or whether he wanted
his counsel to do so in accordance with his directions. Landry’s responses led the
judge to again question whether Landry wanted to represent himself or merely
testify on his own behalf. When asked, Landry replied that he wanted to have
his say in the courtroom and that he wanted “to have the opportunity to express
[his] side of the events.” This prompted a follow up question, and when Landry
explained that he wanted to call the witnesses but have his counsel question
them, the judge told him that only one person could question witnesses. Landry
then indicated he wanted to be the one call his mother to the stand and question
her.




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                                   No. 10-31073
      The judge gave one final warning. He first stated that “as best the Court
can understand and does feel that you have stated that you want to represent
yourself and you want to question the witnesses.” He then proceeded as follows:
      Now, I can tell you, you got a lot of years of service there between
      these three gentlemen. A lot of legal experience. I advise you not
      to do this; I advise you to let them represent you. If you represent
      yourself and what you are saying that then that’s your choice, but
      don’t come back later on and try to say that you didn’t have effective
      counsel because you are your counsel. You are your own attorney;
      do you understand that?
Landry indicated that he understood, and once again affirmed his wish to
represent himself. The jury returned, and Landry proceeded to act as his own
counsel for a portion of the trial. Landry was found guilty of both charged
offenses. He was sentenced to life imprisonment on the second-degree murder
charge and a consecutive fifteen-year sentence for possession of a firearm by a
convicted felon.
                                          B
      Landry completed his direct appeal and then filed an application for post-
conviction relief in state district court in which he argued, for the first time, that
his right to due process under the United States Constitution was violated by
allowing him to represent himself without determining his background,
education, experience, literacy, competency, understanding, and volition. The
court denied the application, determining that every ground was, or could have
been, raised on direct appeal. The Louisiana Court of Appeals, First Circuit and
the Louisiana Supreme Court denied Landry’s requests for supervisory writs
regarding his application for post-conviction relief.
                                          C
      Landry later sought federal habeas relief in a 28 U.S.C. § 2254 petition,
which included a claim identical to that raised in his state application for post-
conviction relief. The magistrate judge recommended that Landry be denied

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                                  No. 10-31073
relief on all grounds except for his claim that his waiver of counsel was not
knowing and intelligent. The magistrate judge determined that Landry had
“unequivocally asserted his right to self-representation” after having been
informed that he had such a right and after being advised against exercising it.
However, even though the magistrate judge determined that the trial court had
“advised [Landry] about expected courtroom behavior and procedures,” the
inquiry was deemed inadequate because Landry’s request was granted “without
first determining, on the record, [Landry’s] age, education and other background,
experience and conduct, or otherwise establishing on the record that [Landry]
knew what he was doing and that his choice was made with his eyes open.” The
magistrate judge determined that this was an unreasonable application of
federal law requiring a new trial.
      The district court adopted the magistrate judge’s report and
recommendation, along with the discussion therein, as its opinion, finding no
merit in the State’s objection that no specific criteria existed to guide a
determination as to whether Landry’s waiver of counsel was made knowingly
and intelligently. The district court determined that it is “well established that
to determine whether a waiver is knowing and intelligent, the ‘court must
consider the defendant’s age, education, background, experience and conduct.’”
Because the waiver was granted without making such a determination on the
record, and because nothing in the trial transcript indicated that the trial judge
knew and considered the relevant facts, the court held that the State had failed
to establish that Landry knowingly and intelligently waived his right to counsel.
Accordingly, Landry’s petition for habeas relief was granted, and the State was
ordered to give him a new trial or release him from custody.
      The State now appeals, asserting that Landry’s waiver of counsel was
valid. The State argues that the inquiry conducted by the state trial court was



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                                         No. 10-31073
sufficient to ensure that Landry’s waiver of counsel was knowingly and
intelligently made.
                                                II
                                                A
       At the outset, we note that the State failed to raise the fact that the state
district court denied Landry’s claim of ineffective waiver of counsel in his
application for post-conviction relief because of Landry’s procedural default. The
Supreme Court has held that procedural default bars federal habeas relief,1 but
the Supreme Court has also held that a federal court of appeals is not required
to raise the issue sua sponte.2 We decline to invoke the procedural bar in this
case because there is no compelling reason for us to do so when the State did not
raise the issue in the district court or on appeal and neither the magistrate judge
nor the district judge noted the possibility of procedural default. Nevertheless,
it behooves the State, in the interest of defending its criminal judgments, and
the federal trial courts, in the interest of federalism, to carefully consider
whether to invoke and apply the procedural-bar doctrine whenever it applies.
                                                B
       When reviewing a district court’s grant of habeas relief, we review findings
of fact for clear error, and we review issues of law and mixed issues of law and
fact de novo.3 Whether a defendant has effectively waived his right to counsel
is a question of law.4 This habeas proceeding is governed by the Antiterrorism
and Effective Death Penalty Act (AEDPA) because Landry filed his habeas



       1
           Coleman v. Thompson, 501 U.S. 722, 729-30 (1991).
       2
           Trest v. Cain, 522 U.S. 87, 89 (1997).
       3
           Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008).
       4
        Mann v. Scott, 41 F.3d 968, 974 (5th Cir. 1994) (citing Brewer v. Williams, 430 U.S.
387, 397 n.4 (1977); Self v. Collins, 973 F.2d 1198, 1204 (5th Cir. 1992)).

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                                          No. 10-31073
petition on April 27, 2009, subsequent to AEDPA’s effective date of April 24,
1996.
        Under AEDPA, the availability of federal habeas relief is limited with
respect to claims previously “adjudicated on the merits in State court
proceedings.”5 A federal court may not grant habeas relief to a state prisoner on
a claim adjudicated on the merits in a state court proceeding unless the state
court decision: (1) “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) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding.”6 To determine
if these standards are applicable, we must first determine the threshold question
of whether Landry’s claim was adjudicated on the merits in the state court
proceeding.
        Adjudication on the merits is a “term of art that refers to whether a court’s
disposition of the case was substantive as opposed to procedural.”7 When the
disposition was procedural—and thus the claim was not adjudicated on the
merits in state court—the standards of AEDPA do not apply.8 Here, the state
court record is unambiguous—Landry’s claim was denied on procedural grounds.
The court orally stated that habeas relief was being denied because every ground
“either was or could have been” addressed in Landry’s direct appeal, and the
court’s disposition of Landry’s petition involved no discussion of the merits of
Landry’s ineffective waiver of counsel claim. This unambiguous disposition on



        5
            28 U.S.C. § 2254(d).
        6
            Id.
        7
        Neal v. Puckett, 286 F.3d 230, 235 (5th Cir. 2002) (en banc) (citing Green v. Johnson,
116 F.3d 1115, 1121 (5th Cir. 1997)).
        8
            Graves v. Dretke, 442 F.3d 334, 339 (5th Cir. 2006).

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                                         No. 10-31073
procedural grounds renders the standards of AEDPA inapplicable,9 and therefore
we review de novo the issue of whether Landry effectively waived his right to
counsel.10
                                                III
                                                A
       The Sixth and Fourteenth Amendments to the United States Constitution
guarantee a criminal defendant the assistance of counsel before he can be validly
convicted and punished by imprisonment.11 However, a criminal defendant that
is unwilling to be represented by counsel has the right to forgo the assistance of
counsel and conduct his own defense.12 The decision to proceed pro se must be
made voluntarily, knowingly, and intelligently,13 and it is the trial judge’s
responsibility to ensure that this is the case.14
       When waiving counsel at trial in order to proceed pro se, the criminal
defendant “should be made aware of the dangers and disadvantages of self-




       9
         But see Harrington v. Richter, 131 S. Ct. 770, 784-85 (2011) (“When 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.”).
       10
           See Hatten v. Quarterman, 570 F.3d 595, 599-600 (5th Cir. 2009) (“In the absence
of a state court ‘adjudication on the merits’ of a petitioner’s claim, to which AEDPA requires
deference under 28 U.S.C. § 2254(d), we review the district court’s findings of fact for clear
error and its legal conclusions de novo.” (footnote omitted)); Graves, 442 F.3d at 339
(determining that the heightened standard of review provided by AEDPA does not apply where
the state court dismissed claims on procedural-default grounds); Henderson v. Cockrell, 333
F.3d 592, 598 (5th Cir. 2003) (indicating that “pre-AEDPA standards of review” apply with
respect to claims not adjudicated on the merits in state court).
       11
            Faretta v. California, 422 U.S. 806, 807 (1975).
       12
            Id. at 834.
       13
            Id. at 835 (citing Johnson v. Zerbst, 304 U.S. 458, 464-65 (1938)).
       14
            Zerbst, 304 U.S. at 465.

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                                         No. 10-31073
representation.”15 In order to determine if the criminal defendant has effectively
waived the right to counsel, this court has stated that “a district court must
consider the totality-of-circumstances.”16 This requires consideration of various
factors including
       the defendant’s age and education, and other background,
       experience, and conduct. The court must ensure that the waiver is
       not the result of coercion or mistreatment of the defendant, and
       must be satisfied that the accused understands the nature of the
       charges, the consequences of the proceedings, and the practical
       meaning of the right he is waiving.17
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,”18 and this
court has emphasized that “there is no sacrosanct litany for warning defendants
against waiving the right to counsel.”19 “[T]he district court must exercise its
discretion in determining the precise nature of the warning.”20
       The presence of standby counsel does not satisfy the right to counsel,21 and
harmless error review is unavailable if a court errs in denying a criminal
defendant the right to counsel at trial.22 When raised in a collateral attack, the



       15
            Iowa v. Tovar, 541 U.S. 77, 89 (2004) (quoting Faretta, 422 U.S. at 836).
       16
         United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citing United States v.
Davis, 269 F.3d 514, 518 (5th Cir. 2001)).
       17
            Id. (quoting Davis, 269 F.3d at 518).
       18
            Tovar, 541 U.S. at 88.
       19
         Virgil, 444 F.3d at 453 (internal quotation omitted) (quoting United States v. Jones,
421 F.3d 359, 364 (5th Cir. 2005)).
       20
            Davis, 269 F.3d at 519.
       21
            Virgil, 444 F.3d at 453.
       22
         See United States v. Cronic, 466 U.S. 648, 659 & n.25 (1984); see also Virgil, 444 F.3d
at 455-56.

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                                       No. 10-31073
burden rests on the criminal defendant to prove that his waiver of counsel was
ineffective.23
                                              B
       The State argues that the district court erred in determining that Landry’s
waiver of counsel was not made knowingly and intelligently. The district court
determined that “it is well established that to determine whether a waiver is
knowing and intelligent, ‘the court must consider the defendant’s age, education,
background, experience and conduct.’”24              Because the waiver was granted
without the trial court first determining this information on the record, or
otherwise establishing that Landry knew what he was doing, the district court
ruled that the State “[had] failed to establish that [Landry] knowingly and
intelligently waived his right to counsel.”25
       In reviewing Landry’s waiver of counsel de novo, we reiterate that
Landry—not the State—bears the burden of proving that his waiver of counsel
was ineffective.26 Landry cannot carry this burden. Although Landry argued
that his waiver of counsel was ineffective because the trial court did not first
determine his background, education, experience, literacy, competency,
understanding, and volition on the record, we require no such formula or script.
The totality-of-circumstances must be considered.27 The record indicates that
the trial judge properly made Landry aware of the dangers and disadvantages

       23
            Tovar, 541 U.S. at 92.
       24
         Landry v. Cain, No. 09-263-BAJ-SCR, 2010 WL 4179828, at *1 (M.D. La. Oct. 20,
2010) (quoting United States v. Joseph, 333 F.3d 587, 590 (5th Cir. 2003)).
       25
            Id.
       26
          See Tovar, 541 U.S. at 92 (“[I]n a collateral attack on an uncounseled conviction, it
is the defendant’s burden to prove that he did not competently and intelligently waive his right
to the assistance of counsel.”).
       27
         United States v. Virgil, 444 F.3d 447, 453 (5th Cir. 2006) (citing United States v.
Davis, 269 F.3d 514, 518 (5th Cir. 2001)).

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                                         No. 10-31073
of self-representation, and the colloquy between the trial judge and Landry
sufficiently indicated that Landry’s waiver was knowing and intelligent in light
of the factors this court has indicated a trial court must consider.
       This is not a case in which the trial court failed to conduct any inquiry into
whether the waiver of counsel was made knowingly and intelligently.28 This is
also not a case in which the court did no more than “repeat its recommendation
that a defendant proceed with his available qualified counsel.”29 The record is
replete with evidence that the trial judge made a sufficient effort to ensure that
Landry’s waiver of counsel was knowing and intelligent. The judge—on multiple
occasions—asked Landry if he wanted to represent himself, and Landry—on
multiple occasions—indicated that he did, despite being repeatedly cautioned not
to do so. The judge questioned Landry and confirmed that he understood his
right to appointed counsel, that he did not have to “say anything or do anything
at trial,” that anything he did say could be used against him, and that he
retained the ultimate right to decide whether to testify even if represented by
counsel. The judge advised Landry “that the procedures of [the] courtroom and
the law is better dealt with by attorneys than a layperson.” The judge also told
Landry the procedures with which he would be expected to comply.
Emphasizing that courtroom procedures are better dealt with by attorneys, the
judge told Landry he would “highly suggest” Landry consult his standby counsel.
Additionally, the judge heard Landry indicate an understanding of the nature
of the charges against him and the consequences of the proceedings when



       28
         See id. at 454-55 (finding a violation of Faretta where “[t]he transcript [was] void of
any indication that the district court sought to apprise [the defendant] of the ‘perils and
disadvantages of self-representation,’ which is the minimum required by Davis and Faretta,
much less engaged in any of the broader warnings suggested by Davis”); see also Davis, 269
F.3d at 520 (finding inadequate “[t]he court’s reliance on the warnings against self-
representation given by [the defendant’s] counsel”).
       29
            United States v. Jones, 421 F.3d 359, 65 (5th Cir. 2005).

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                                        No. 10-31073
Landry stated that he was waiving counsel and proceeding pro se because his
“life is on the line.”
      As we have stated before, we do not require the trial court to “follow a
script,” and we “[have] approved warnings much less thorough than the
guidelines presented in the [Benchbook for U.S. District Court Judges].”30 In
United States v. Martin, “we entertain[ed] no doubt that [the] waiver was
knowingly, intelligently, and voluntarily made.”31              There the trial court
conducted a hearing in which the defendant was “cautioned . . . about the
complexity of the trial and the pitfalls of self-representation,” and “[u]pon
specific inquiry, [the defendant] advised the court that he wished to represent
himself, despite the potential difficulties.”32
      In United States v. Joseph, we also determined that the requirements for
a knowing and intelligent waiver were satisfied.33 The defendant was properly
informed of the dangers and disadvantages of self-representation: the court
recommended he allow his attorneys to represent him, the court told him they
were very good lawyers, and the court specifically recommended that his
attorneys be allowed to question witnesses, conduct cross-examination, and put
on evidence.34 Additionally, comments made by the defendant concerning his
indictment and the possible sentence “indicate[d] that [he] understood the
nature of the charges against him and the consequences of the proceedings.”35



      30
           Id..3d at 363-64.
      31
           790 F.2d 1215, 1218 (5th Cir. 1986).
      32
           Id.
      33
           333 F.3d 587, 590 (5th Cir. 2003).
      34
           Id.
      35
           Id.

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                                     No. 10-31073
      The facts here are analogous to those present in cases such as Martin and
Joseph. Here, as in Martin, the trial court conducted a hearing in which the
defendant was cautioned about the complexities of trial and the pitfalls of self-
representation. Landry was warned that anything he might say in representing
himself could be used against him, and he was warned of the difficulties and
limitations imposed by court procedures. Landry, like the defendant in Martin,
expressed his desire to represent himself despite these difficulties. As in Joseph,
Landry was advised by the trial court that he had good lawyers whom the court
recommended he permit to represent him—lawyers the court specifically
recommended he consult if acting pro se in order to be able to comply with court
procedures. Also, just as the defendant in Joseph indicated an understanding
of the nature of the charges against him and the consequences of the proceedings
by referring to his indictment and possible sentence, Landry showed a similar
understanding by stating that he was proceeding pro se because his life was one
the line. Accordingly, we are satisfied that Landry’s waiver of counsel was
effective as having been knowingly and intelligently made.
                                 *        *         *
      The district court’s judgment is REVERSED, and judgment is
RENDERED DENYING the petition for writ of habeas corpus.




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