            IN THE UNITED STATES COURT OF APPEALS

                             FOR THE FIFTH CIRCUIT
                                         _______________

                                           m 01-40159
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                                  JERMARR CARLOS ARNOLD,

                                                             Petitioner-Appellant,

                                              VERSUS

                                         JANIE COCKRELL,
        DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

                                                             Respondent-Appellee.


                                   _________________________

                            Appeal from the United States District Court
                                for the Southern District of Texas
                                 _________________________
                                         August 28, 2001



Before SMITH, BENAVIDES,                             murder and sentenced to death. He appeals
  and DENNIS, Circuit Judges.                        the denial of his federal petition for writ of
                                                     habeas corpus, arguing that he was deprived of
PER CURIAM:*                                         effective assistance of counsel because the
                                                     district court forced his attorneys to comply
   Jermarr Arnold was convicted of capital           with his instructions. We affirm.

                                                                             I.
   *
                                                        Before trial, Arnold complained to the
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                     court that his appointed counsel did not allow
determined that this opinion should not be
                                                     him to participate in determining defense stra-
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.       tegy. He also asserted his intent to play an
47.5.4.                                              active role in his trial, threatening to proceed
pro se if not allowed to participate in his de-        Cir. 1987), aff’d, 484 U.S. 231 (1988).1
fense. During trial and over the objections of
his counsel, Arnold made several decisions af-            The only issue before us, therefore, is
fecting his defense, including refusing to chal-       whether Arnold was competent so to instruct
lenge peremptorily multiple jurors with law            his counsel. Arnold admits that the “lower
enforcement backgrounds and refusing to al-            courts . . . determined whether or not Arnold
low counsel to call defense witnesses or either        was competent to stand trial or represent him-
to present any mitigating evidence during the          self,” and he does not dispute their findings
penalty phase or to argue against the death            that he was. Instead, citing Westbrook v. Ari-
penalty. During the sentencing phase, Arnold           zona, 384 U.S. 150 (1966) (per curiam), he
told the jury that the death penalty was the           argues that “[a] defendant’s competency to
proper punishment in his case.                         stand trial is gauged at a level different from
                                                       that of competency to waive a trial right, or to
    Arnold now contends, however, that he              commit a prescribed act.”
was not competent to override counsel’s ad-
vice and therefore that the court’s decision to           Arnold misreads the import of Westbrook,
allow him to do so deprived him of effective           however. In Godinez v. Moran, 509 U.S. 389,
assistance of counsel. We disagree.                    398 (1993), the Court revisited Westbrook and
                                                       expressly “reject[ed] the notion that
                      II.                              competence to plead guilty or waive the right
    There is no dispute that Arnold attempted          to counsel must be measured by a standard
to waive any ineffective assistance of counsel         that is higher t han (or even different from)”
claim. Not only did he request the court’s as-         competence to stand trial.2 Accord Dunn v.
sistance in enforcing his instructions to
counsel, he remarked after the trial that
                                                          1
                                                            Accord Autry v. McKaskle, 727 F.2d 358, 561
   I wish to say that I’m quite satisfied with         (5th Cir. 1984) (concluding that, if defendant
   the decision made by the jury. I’m also             knowingly chose to seek the death penalty and not
   satisfied with theSSthe conduct of the              to present mitigating evidence, his counsel was
   Court. I feel that all my rights have               “ethically bound” to obey that choice).
   been fully protected and recognized.
                                                          2
   And I have been very adequately                           To be competent to stand trial, a defendant
   representedSSand vigorously soSSby                  must have “‘sufficient present ability to consult
   mySSby my two court appointed                       with his lawyer with a reasonable degree of un-
   attorneys.                                          derstanding’ and [have] ‘a rational as well as fac-
                                                       tual understanding of the proceedings against
                                                       him.’” Godinez, 509 U.S. at 396 (quoting Dusky
Moreover, all alleged errors resulted from Ar-
                                                       v. United States, 362 U.S. 402 (1960) (per curi-
nold’s express instructions to counsel. “The           am)); accord Mata v. Johnson, 210 F.3d 324, 329
circumstances are extremely rare when counsel          n.2 (5th Cir. 2000). Arnold’s high degree of in-
is not required to follow his client’s                 volvement indicates he was capable of understand-
instructions on a decision of this nature.”            ing the proceedings and consulting with his
Lowenfield v. Phelps, 817 F.2d 285, 292 (5th           attorneys and therefore was competent to make
                                                       strategic decisions during voir dire and sentencing.
                                                                                              (continued...)

                                                   2
Johnson, 162 F.3d 302, 307-08 (5th Cir.
1998). Because Arnold was competent to
stand trial and therefore to waive his right to
counsel, he was, a fortiori, competent to over-
ride the advice of counsel. See Coleman, 244
F.3d at 545. Indeed, Arnold threatened to dis-
charge counsel and proceed pro seSSa course
of action he undisputedly was competent to
take under GodinezSSif not allowed to be an
active participant in the trial. Under those cir-
cumstances, we cannot say that the trial court
deprived Arnold of effective assistance of
counsel merely by allowing him to make stra-
tegic decisions.

   The district court analyzed this issue in a
comprehensive seventy-seven-page opinion.
Essentially for the reasons given by the district
court, the judgment is AFFIRMED.




   2
    (...continued)
See Coleman v. Mitchell, 244 F.3d 533, 545 (6th
Cir. 2001) (relying on defendant’s high degree of
activity at trial in finding him competent under
Godinez to instruct counsel not to present
mitigating evidence during sentencing phase).

    In Godinez, 509 U.S. at 400, the Court
recognized that, in addition to determining
competence, the trial court also must ensure that
the waiver of the right to counsel is knowing and
voluntary. Arnold does not argue that his decision
to ignore the advice of counsel was not knowing or
voluntary, and his statements before and during
trial confirm that it was.

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