     Case: 10-30802   Document: 00511869671     Page: 1   Date Filed: 05/29/2012




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

                                                                     FILED
                                                                     May 29, 2012

                                   No. 10-30802                   Lyle W. Cayce
                                                                       Clerk

MARSHALL BATCHELOR,

                                             Petitioner - Appellee
v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                             Respondent - Appellant



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


Before HIGGINBOTHAM, DENNIS, and PRADO, Circuit Judges.
DENNIS, Circuit Judge:
        This is an appeal from the district court’s grant of habeas relief under 28
U.S.C. § 2254. Months before his criminal trial, petitioner-appellee Marshall
Batchelor moved to dismiss his appointed counsel in exercise of his
constitutional right to represent himself under Faretta v. California, 422 U.S.
806 (1975).     The state trial court denied the motion and Batchelor was
subsequently convicted by a jury of armed robbery and sentenced to sixty years
of imprisonment.      On direct appeal, a state appellate court reversed the
conviction due to the denial of Batchelor’s right to self-representation, but the
court then granted rehearing, and a five-judge panel affirmed Batchelor’s
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                                   No. 10-30802

conviction and sentence.       Batchelor subsequently filed a habeas corpus
application in federal district court under § 2254, and the court granted relief.
      We conclude that Batchelor made a clear and unequivocal invocation of his
Sixth Amendment right to represent himself and that the state trial court
erroneously denied his request in violation of Faretta. See 28 U.S.C. § 2254(a).
The state argues that the state appellate court implicitly found that Batchelor
waived his right to represent himself after asserting it and reasonably denied
Batchelor’s claim on that basis. We conclude, however, that the state court’s
implicit finding of waiver was unreasonable in light of the evidence presented
in the state court proceeding. See id. § 2254(d)(2). We therefore AFFIRM the
district court’s grant of habeas relief.
                                           I.
      Batchelor was arrested in June 1998 and charged with robbing a pizza
delivery driver and beating him so badly that he suffered permanent brain
damage. On October 14, 1999, long before trial, Batchelor filed a pro se “Motion
for Dismissal of Counsel.” The two-page, legibly handwritten motion stated, in
pertinent part:
      The defendant moves this Honorable Court to dismiss counsel. . . .
      Pursuant to Faretta vs the State of California a Supreme Court
      Decision, the defendant has a constitutional right to represent
      himself. . . . Defendant avers that his request to dismiss counsel is
      being made with sound-mind with his eyes opened. . . . Defendant
      further prays that this Honorable Court allow him to proceed pro se
      in this matter with standby counsel only.
      At some point that same day, the trial court attempted to hold an
arraignment, but Batchelor’s appointed counsel, Michael Kelly, failed to attend.
The court asked Batchelor if he wanted to enter a plea despite Kelly’s absence.
Batchelor declined, saying, “I rather not say unless I have a presence of counsel
[sic].” The following month, the arraignment took place with Kelly present, and



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Batchelor pleaded not guilty to all charges. Batchelor’s Faretta motion was not
discussed at either of these appearances.
      On February 7, 2000, the trial court held a hearing at which several
motions were addressed, including Batchelor’s Faretta motion. The prosecutor
spoke first, in a way that indicated that he erroneously thought Batchelor had
moved to replace his appointed counsel rather than to proceed pro se. Kelly
clarified the nature of Batchelor’s motion: “[Batchelor] is not necessarily asked
[sic] that counselor be totally released, but that he have stand aside counsel to
assist him throughout the proceedings.” The court indicated that it shared this
understanding of the motion: “You mean that he would represent himself and
have you stand beside him during that time?” Kelly responded, “Yes, sir, for
whatever questions or pointers of law, issues as it relates, whatever procedural
devices that he may be — that may be warranted.” Before ruling, the court
asked Batchelor if he had anything to say. He responded, “No, sir.” The court
then denied the motion and gave its reasons for doing so: “Court is going to deny
your motion to dismiss counsel. This matter has been set for trial on March the
20th. I believe that everything is now on track and Mr. Kelly is certainly well
capable of mounting a defense on your behalf. I think everything is on track
now, and we can proceed.”
      The trial, with Batchelor represented by Kelly, ultimately did not begin
until November 2000. The issue of Batchelor’s representation was raised again
by Batchelor and Kelly in motions filed on the eve of trial. First, on November
27, 2000, Kelly filed a “Motion to Appoint Counsel,” in which Kelly averred that
he had discovered on November 21 that Batchelor had filed a state bar
disciplinary complaint against him. Kelly’s motion asserted that this complaint
created a conflict of interest and requested that the court appoint co-counsel or
substitute counsel to represent Batchelor. At a hearing on November 27, the
court denied Kelly’s motion. Separately, Batchelor filed a second pro se Faretta

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motion, which was nearly identical to his October 14, 1999 motion. That motion
was signed on November 21, 2000, but not filed until November 29. The trial
court addressed this motion on November 29, the first day of trial, after the
prosecution had called several witnesses. Kelly stated that it was “the same
motion that has already been ruled upon by the Court, and in fact, is not a new
motion,” and Batchelor agreed that this was correct. The trial court made a
notation that the motion had already been denied on November 27. With respect
to this exchange, the district court stated that it could “only speculate that
Batchelor meant to say that the [trial] court had denied this motion on February
7, 2000, while the [trial] court believed that it had ruled on the motion at the
November 27, 2000 hearing.” Batchelor v. Cain, Civil Action No. 07-1623, 2010
WL 3155985, at *7 n.4 (W.D. La. Aug. 9, 2010). In any event, the present appeal
turns on the state trial court’s denial of Batchelor’s initial Faretta request on
February 7, 2000 and the state appellate court’s rejection of Batchelor’s
challenge to that ruling, rather than on the denial of this much later renewal of
that request.
      After the trial, the jury convicted Batchelor of armed robbery and the court
sentenced him to sixty years of imprisonment. Batchelor appealed his conviction
and sentence to the state appellate court and argued, in a pro se brief, that the
trial court violated his right to represent himself when it denied his October 14,
1999 Faretta motion, “even though [he] filed [it] six months before trial,” without
“conduct[ing] any or a more sufficient hearing to decide whether . . . [he] was
literate, competent, and understanding, or to see if [he] was voluntarily
exercising his right’s on his own free will [sic].”
      On direct appeal, a three-judge panel of the state appellate court reversed
the conviction, holding that the trial court had violated Batchelor’s right to self-
representation when it denied his Faretta motion at the February 7, 2000
hearing. State v. Batchelor, 823 So. 2d 367, 372-73 (La. App. 2d Cir. 2002)

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(majority opinion of Norris, C.J.) (“Batchelor first filed his written motion to
dismiss counsel and represent himself on October 14, 1999. . . . Batchelor
specifically cited Faretta and claimed the constitutional right to represent
himself, stating that he desired to proceed pro se with stand-by counsel only, and
that he was making this request ‘with his eyes opened.’ Batchelor clearly and
unequivocally declared his desire to exercise his Sixth Amendment right to
represent himself. . . . The motion was heard in open court February 7, 2000, at
which time trial was set for March 20, 2000. . . . [T]he trial court did not conduct
any meaningful inquiry to determine if Batchelor was competent to waive his
right to counsel[] . . . [before it] denied his motion. . . . Because we find that the
trial court made no meaningful effort to inform Batchelor of the consequences
of proceeding without counsel, . . . or determine whether [his] waiver of counsel
was ‘intelligent and voluntarily made,’ we must reverse the conviction and
sentence . . . .”). One judge dissented, arguing that at the November 29, 2000
“hearing[,] . . . like at the hearing on February 7, 2000, . . . [Batchelor] never
mentioned a desire for self-representation. Clearly this was a delaying tactic.
The court did not deny a request for self-representation . . . . Under these
circumstances, I question whether [Batchelor] sought self-representation and,
if he did, it was implicitly waived.” Id. at 374 (Brown, J., dissenting). The state
petitioned for rehearing and the court granted rehearing by a five-judge panel.
      By a three-to-two vote, the rehearing panel affirmed Batchelor’s conviction
and sentence. Id. at 374-77 (majority opinion of Brown, J., on rehearing). The
two judges who had formed the majority of the original three-judge panel
dissented. Id. at 378-80 (Norris, C.J., dissenting). The rehearing majority
focused on whether the trial court erred in denying Batchelor’s November 29,
2000 Faretta motion.      Id. at 375-377.      Of that request, the court wrote:
“Assuming . . . that he did seek to represent himself, [Batchelor]’s vacillation
between wanting to be represented by counsel and desiring to undertake his own

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defense, together with his failure to specifically assert this right at the
November 27 hearing, constitutes an implicit waiver of his request.” Id. at 377.
The court mentioned Batchelor’s October 14, 1999 Faretta motion only in a
footnote, stating that “[t]he [trial] court did not address any request for self-
representation [at the February 7, 2000 hearing] nor did defendant personally
argue for such when given the opportunity to do so.” Id. at 375 n.2.
      The Louisiana Supreme Court denied certiorari. Subsequently, Batchelor
filed an application for state post-conviction relief, which was denied by the trial
court. Batchelor then filed writ applications with the state appellate court and
the Louisiana Supreme Court, which were denied in turn. Having exhausted the
remedies available in the Louisiana courts, see 28 U.S.C. § 2254(b)(1), Batchelor
timely filed a federal habeas application in district court, see id. § 2244(d). The
district court granted Batchelor’s habeas petition on the ground that the state
trial court wrongly denied his request to represent himself in violation of
Faretta:
      Batchelor clearly asserted his right to represent himself, not once
      but twice. . . . Neither Batchelor’s attorney, the district attorney, nor
      the district court treated the motion as having been abandoned.
      Batchelor’s attorney argued the motion for him and offered to serve
      as standby counsel . . . and the [trial] court denied the motion
      without any inquiry into Batchelor’s competency to waive
      counsel. . . . [T]he [state appellate court]’s . . . [decision] to, in effect,
      treat the motion as abandoned was an unreasonable application of
      Federal law.
Batchelor v. Cain, Civil Action No. 07-1623, 2010 WL 3155985, at *7 n.4 (W.D.
La. Aug. 9, 2010). The district court’s judgment would vacate and set aside
Batchelor’s conviction and order the state to either release him or grant him a
new trial within 120 days. The state timely appealed, and the district court
stayed its judgment pending appeal.




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                                       II.
      We review the district court’s conclusions of law de novo. E.g., Foster v.
Quarterman, 466 F.3d 359 (5th Cir. 2006). We “may affirm a district court’s
decision on any basis supported by the record.” Teague v. Quarterman, 482 F.3d
769, 773 (5th Cir. 2007). Here, although the district court concluded that the
writ may issue because the state appellate court’s decision “was an unreasonable
application of Federal law,” Batchelor, 2010 WL 3155985, at *7; see 28 U.S.C.
§ 2254(d)(1), we affirm the grant of habeas relief on the basis that the state
appellate court’s decision “was based on an unreasonable determination of the
facts,” see id. § 2254(d)(2).
      The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
prevents a federal court from granting habeas relief to a state prisoner
      with respect to any claim that was adjudicated on the merits in
      State court proceedings unless the adjudication of the 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). Under § 2254(d)(2), “[i]t is not enough to show that a state
court’s decision was incorrect or erroneous. [Rather, a] petitioner must show
that the decision was objectively unreasonable, ‘a substantially higher
threshold[,]’” requiring “the petitioner [to] show that ‘a reasonable factfinder
must conclude’ that the state court’s determination of the facts was
unreasonable.” Blue v. Thaler, 665 F.3d 647, 654 (5th Cir. 2011). Additionally,
under § 2254(e)(1), “a determination of a factual issue made by a State court
shall be presumed to be correct,” and that presumption must be rebutted “by
clear and convincing evidence.” 28 U.S.C. § 2254(e)(1). The standard that
§§ 2254(d)(2) and (e)(1) impose is “demanding but not insatiable,” such that


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“‘[d]eference does not by definition preclude relief.’” Miller-El v. Dretke, 545 U.S.
231, 240 (2005) (alteration in original) (quoting Miller-El v. Cockrell, 537 U.S.
322, 340 (2003)). In the absence of guidance from the Supreme Court, see, e.g.,
Wood v. Allen, 130 S. Ct. 841, 849 (2010), this court has described the
relationship between these two provisions as follows:
      Whereas § 2254(d)(2) sets out a general standard by which the
      district court evaluates a state court’s specific findings of fact,
      § 2254(e)(1) states what an applicant will have to show for the
      district court to reject a state court’s determination of factual issues.
      For example, a district court may find by clear and convincing
      evidence that the state court erred with respect to a particular
      finding of fact, thus rebutting the presumption of correctness with
      respect to that fact. See § 2254(e)(1). It is then a separate question
      whether the state court’s determination of facts was unreasonable
      in light of the evidence presented in the state court proceeding. See
      § 2254(d)(2). Thus, it is possible that, while the state court erred
      with respect to one factual finding under § 2254(e)(1), its
      determination of facts resulting in its decision in the case was
      reasonable under § 2254(d)(2).
Valdez v. Cockrell, 274 F.3d 941, 951 n.17 (5th Cir. 2001); see also Blue, 665 F.3d
at 654 (“The clear-and-convincing evidence standard of § 2254(e)(1) — which is
‘arguably more deferential’ to the state court than is the unreasonable-
determination standard of § 2254(d)(2) — pertains only to a state court’s
determinations of particular factual issues, while § 2254(d)(2) pertains to the
state court’s decision as a whole.” (footnotes omitted)).
      Under AEDPA, we review “the last reasoned state court decision.” See,
e.g., Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir. 2007). Here, we review
the state appellate court’s rejection of Batchelor’s claim that the trial court
violated his right to self-representation when it denied his Faretta motion at the
February 7, 2000 hearing.
      Finally, the denial of the right to self-representation constitutes a
structural error that is not subject to harmless error review and instead requires


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automatic reversal. McKaskle v. Wiggins, 465 U.S. 168, 177 n.8 (1984) (“Since
the right of self-representation is a right that when exercised usually increases
the likelihood of a trial outcome unfavorable to the defendant, its denial is not
amenable to ‘harmless error’ analysis. The right is either respected or denied; its
deprivation cannot be harmless.”); see United States v. Gonzalez-Lopez, 548 U.S.
140, 148-49 (2006) (listing “the denial of the right of self-representation” as a
“structural defect” (citing McKaskle, 465 U.S. at 177-78)); see also Neder v.
United States, 527 U.S. 1, 8 (1999).
                                       III.
      In Faretta, the Supreme Court announced that the right of a criminal
defendant to represent himself at trial is implicit in the structure of the Sixth
Amendment, and applies to state court proceedings through the Fourteenth
Amendment. 422 U.S. at 818-21. The Court determined that this right was
violated where, “weeks before trial, Faretta clearly and unequivocally declared
to the judge that he wanted to represent himself and did not want counsel,” and
Faretta’s request was nonetheless denied by the trial court. Id. at 835. The
Court explained:
      It is undeniable that in most criminal prosecutions defendants could
      better defend with counsel’s guidance than by their own unskilled
      efforts. But where the defendant will not voluntarily accept
      representation by counsel, the potential advantage of a lawyer’s
      training and experience can be realized, if at all, only
      imperfectly. . . . Although a defendant need not himself have the
      skill and experience of a lawyer in order competently and
      intelligently to choose self-representation, he should be made aware
      of the dangers and disadvantages of self-representation, so that the
      record will establish that “he knows what he is doing and his choice
      is made with eyes open.”
Id. at 834-35. Additionally, the Court stated that “a State may — even over
objection by the accused — appoint a ‘standby counsel’ to aid the accused if and
when the accused requests help, and to be available to represent the accused in


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the event that termination of the defendant’s self-representation is necessary.”
Id. at 834 n.46 (citation omitted). In McKaskle, the Court reaffirmed that
appointment of standby counsel — whether at the defendant’s request or over
the defendant’s objection — is consistent with the exercise of the right to self-
representation. 465 U.S. at 169, 184.1
       “Even if defendant requests to represent himself, . . . the right may be
waived through defendant’s subsequent conduct indicating he is vacillating on
the issue or has abandoned his request altogether.” Brown v. Wainwright, 665
F.2d 607, 611 (5th Cir. 1982) (en banc). “A waiver may be found if it reasonably
appears to the court that defendant has abandoned his initial request to
represent himself.” Id.
       Batchelor argues — as he did on direct appeal in state court — that he
clearly, unequivocally, and timely moved to represent himself on October 14,
1999, and that the state trial court violated his right to self-representation by
erroneously denying that motion at the February 7, 2000 pre-trial hearing on the
basis that Batchelor’s appointed counsel was “well capable of mounting a defense
on [his] behalf.” The state contends that § 2254(d) prohibits the federal courts
from granting Batchelor relief because the state appellate court reasonably
found that Batchelor implicitly waived his October 13, 1999 Faretta request
prior to its denial.
       Whether Batchelor abandoned his Faretta motion and thereby waived his
right to represent himself is a question of fact, see Myers v. Collins, 8 F.3d 249,
253 (5th Cir. 1993), abrogated on other grounds by Martinez v. Court of Appeal

       1
         McKaskle addressed the issue of “what role standby counsel who is present at trial
over the defendant’s objection may play consistent with the protection of the defendant’s
Faretta rights.” 465 U.S. at 169. However, the “limits on the extent of standby counsel’s
unsolicited participation” set forth in McKaskle, see id. at 177-82, are not relevant here, as this
case concerns a claim that the trial court wrongly denied a self-representation request, as in
Faretta, rather than a claim that standby counsel’s participation undermined a defendant’s
right to represent himself.

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of Cal., 528 U.S. 152 (2000); see also Myers v. Johnson, 76 F.3d 1330, 1333 (5th
Cir. 1996) (per curiam), which we review under 28 U.S.C. § 2254(d)(2) and (e)(1).
Our review of the state court record provides clear and convincing evidence that
Batchelor’s conduct was in no way inconsistent with his formal and unequivocal
request to represent himself with the assistance of standby counsel. See 28
U.S.C. § 2254(e)(1). We conclude that the state court’s ultimate decision was
based on an unreasonable determination that Batchelor waived his initial
Faretta request. See id. § 2254(d)(2).
                                         A.
      The record admits of no doubt that Batchelor’s October 14, 1999 “Motion
for Dismissal of Counsel” constituted a “clear[] and unequivocal[] declar[ation]
that he wanted to represent himself and did not want counsel.” See Faretta, 422
at 835. That motion stated in substantive part:
                       Motion for Dismissal of Counsel
           Now Comes the pro se litigant Marshall T. Batchelor into
      Court to file the above captioned motion pertaining to the above
      enumerated matter. The defendant moves this Honorable Court to
      dismiss counsel for the following Reasons hereinafter set forth:
                                         (1)
            Pursuant to Faretta vs the State of California a Supreme
      Court Decision, the defendant has a constitutional right to represent
      himself.
                                         (2)
           Defendant avers that his request to dismiss counsel is being
      made with sound-mind with his eyes opened.
                                         (3)
            Counsel has failed to file necessary pleadings such as a Writ
      of Habeas Corpus and Application for a Writ of Review to secure the
      defendants’ [sic] release in this matter. Had counsel filed such
      aforementioned pleadings, the defendant could have been released
      without bond obligation. Instead counsel has deliberately denied


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                                        No. 10-30802

       the defendant access to court by depriving the defendant of the final
       ruling that he received from the Clerk’s office on the defendants’
       [sic] pro se “Application for a Writ of Habeas.” Therefore counsel
       has provided the defendant with ineffective assistance and caused
       unnecessarily prolonged incarceration upon the defendant.
             Wherefore, the defendant prays that this Honorable Court
       deem his Reasons good and sufficient to grant the foregoing motion
       or show just cause for not doing so.
             Defendant further prays that this Honorable Court allow him
       to proceed pro se in this matter with standby counsel only.
The motion specifically cited Faretta for the proposition that “the defendant has
a constitutional right to represent himself.” It identified Batchelor as a “pro se
litigant” and requested that the court “allow him to proceed pro se.” Moreover,
the motion employed language from Faretta itself in stating that Batchelor’s
“request to dismiss counsel is being made with sound-mind with his eyes
opened,”2 and requesting that the court “allow him to proceed pro se . . . with
standby counsel only.”3         Nor can it be said that Batchelor’s expression of
dissatisfaction with his appointed counsel somehow detracted from the clarity
of his Faretta motion. In Faretta itself, the defendant requested to proceed pro
se because of dissatisfaction with appointed counsel. See, e.g., Faretta, 422 U.S.
at 807 (explaining that Faretta had stated to the trial judge that he wanted to
represent himself and “did not want to be represented by the public defender
because he believed that that office was ‘very loaded down with . . . a heavy case
load’” (alteration in original)). As one court has noted,
       almost all requests for pro se representation will arise from
       dissatisfaction with trial counsel. It is the rare defendant who will


       2
        See Faretta, 422 U.S. at 835 (“[A] defendant . . . should be made aware of the dangers
and disadvantages of self-representation, so that . . . ‘he knows what he is doing and his choice
is made with eyes open.’” (citation omitted)).
       3
         See Faretta, 422 U.S. at 834 n.46 (“Of course, a State may . . . appoint a ‘standby
counsel’ to aid the accused if and when the accused requests help . . . .”).

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      ask to proceed pro se even though he/she is thoroughly delighted
      with counsel’s representation, ability, and preparation. Thus, that
      a defendant wishes to proceed without representation because s/he
      is dissatisfied with that representation is not usually relevant to
      whether that defendant’s request is clear and unequivocal.
Alongi v. Ricci, 365 F. App’x 341, 346-47 (3d Cir. 2010) (per curiam)
(unpublished) (citations and internal quotation marks omitted). In any event,
the state conceded, both in its briefing and at oral argument, that by this motion
Batchelor asserted his right to represent himself. See Br. of Appellant at 4-5, 20,
27.
                                        B.
      Instead, the state contends that two events establish a reasonable basis
upon which the state appellate court could have implicitly found that Batchelor
waived his right to represent himself after filing his October 14, 1999 Faretta
motion: first, Batchelor’s statement to the trial court at the attempted
arraignment that same day that he preferred not to enter a plea “unless I have
a presence of counsel”; and, second, the discussion of Batchelor’s Faretta motion
at the February 7, 2000 hearing. We examine the state court records of these
exchanges and conclude that the state court could not reasonably have found a
waiver. See 28 U.S.C. § 2254(d)(2).
                                        1.
      First, the transcript of the proceedings on October 14, 1999 provides clear
and convincing evidence that Batchelor did not abandon his request at those
proceedings, as his conduct was in no way inconsistent with his Faretta motion.
See id. § 2254(e)(1).    The transcript indicates that the trial court asked
Batchelor: “What do you plan to do? You plan to plea [sic] guilty or not guilty?”
Batchelor responded: “Your Honor, I rather not say unless I have a presence of
counsel.” The court then rescheduled the arraignment for the next month. This
exchange does not provide a basis for finding that Batchelor waived his clear and


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                                      No. 10-30802

unequivocal declaration of his desire to proceed pro se. No one involved in
Batchelor’s trial court proceedings — neither the court, nor the prosecution, nor
Kelly, nor Batchelor himself — ever suggested that Batchelor’s unwillingness to
plead without conferring with counsel constituted a waiver of his Faretta
request. Additionally, at the time Batchelor declined to plead without Kelly
present, the trial court had not yet ruled on Batchelor’s Faretta motion.
Batchelor had not been told that he would be allowed to proceed pro se, either
with or without the assistance of standby counsel, and did not have counsel
present. It is not an indication of abandonment of a request to proceed pro se for
a defendant in such a situation to decline to take the potentially drastic step of
entering a plea. Cf. Moore v. Haviland, 531 F.3d 393, 402-03 (6th Cir. 2008),
cert. denied, 130 S. Ct. 92 (2009) (stating that a defendant was “g[iven] no choice
but to proceed with counsel conducting direct examination,” where the trial
judge had not yet ruled on the defendant’s written Faretta request).
       Moreover, Batchelor’s unwillingness to plead on October 14, 1999 without
the “presence of counsel” was entirely consistent with his request, made in his
motion, that the court appoint standby counsel while allowing him to proceed pro
se. See Faretta, 422 U.S. at 834 n.46 (“[A] State may . . . appoint a ‘standby
counsel’ to aid the accused if and when the accused requests help . . . .” (emphasis
added)); McKaskle, 465 U.S. at 177 (“[T]he objectives underlying the right to
proceed pro se may be undermined by unsolicited and excessively intrusive
participation by standby counsel.” (emphasis added)). Indeed, the Court in
McKaskle repeatedly referred to the “presence” of standby counsel, 465 U.S. at
171, 173, 182-83, 185, and itself used the terms “counsel” and “standby counsel”
interchangeably, e.g., id. at 182, 183.4


       4
        In noting that Batchelor’s request for standby counsel was entirely consistent with
his request to proceed pro se, we do not suggest that Batchelor had a constitutional right to
standby counsel. See United States v. Mikolajczyk, 137 F.3d 237, 246 (5th Cir. 1998) (stating

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                                       No. 10-30802

       In arguing to the contrary, the state misapprehends the Court’s statement
in McKaskle that, “[o]nce a pro se defendant invites or agrees to any substantial
participation by counsel, subsequent appearances by counsel must be presumed
to be with the defendant’s acquiescence, at least until the defendant expressly
and unambiguously renews his request that standby counsel be silenced.” 465
U.S. at 183. There, the Court was addressing a pro se defendant’s “complaints
concerning [standby] counsel’s subsequent unsolicited participation,” where the
trial court had appointed standby counsel over the defendant’s objection. Id.
That language does not bear on the situation in this case. Here, Batchelor
complains that the court — not standby counsel — deprived him altogether of his
right to proceed pro se by erroneously denying his Faretta motion. See Moore,
531 F.3d at 403 (“McKaskle addresses the constitutional boundaries of standby
counsel’s involvement in criminal proceedings against the wishes of a pro se
defendant. Moore never became a pro se defendant, nor was his attorney
standby counsel. Moore does not complain that his attorney overstepped his
bounds as standby counsel — rather he complains that he was denied his right
of self-representation.”). Indeed, rather than supporting the state’s waiver
argument, the quoted language from McKaskle underscores the significant
degree of participation by standby counsel that remains consistent with a
defendant’s exercise of the right to proceed pro se.
                                             2.
       Nor does the discussion of Batchelor’s pro se Faretta motion at the
February 7, 2000 hearing provide any basis for a finding of waiver. Rather, a
review of the transcript from that hearing likewise provides clear and convincing
evidence that Batchelor did not equivocate or abandon his request. Batchelor’s


that appointment of standby counsel is “not constitutionally required”). While the trial court
could have required Batchelor to choose to proceed represented by counsel or pro se without
the aid of standby counsel, see id., the court did not do so.

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                                  No. 10-30802

motion, as discussed above and as conceded by the state, constituted a clear and
unequivocal invocation of his right to self-representation. The transcript of the
relevant portion of the hearing, at which Batchelor, his appointed counsel Kelly,
and the prosecutor Phillips, were present, reads:
      MICHAEL KELLY:
                  The next matter we have is dismissal of counsel, which
            was filed by the defendant, Marshall Batchelor.
      TREY PHILLIPS:
                   Judge, the State would, of course, object to the dismissal
            of this appointed counsel. Mr. Batchelor filed the motion. It
            was denied [sic]. And, as the record reflects, Mr. Kelly has
            been on the case from the beginning. The State has, at his
            urging, given discovery and let him see video tapes. There’s
            no basis for Mr. Kelly being replaced by anyone else. The
            State wants to try this case on March 20th, so from the State’s
            point of view, there’s not a reason in the world for Mr. Kelly
            to be replaced.
      THE COURT:
                  Mr. Kelly or Mr. Batchelor, do you wish, either of you
            wish to say anything?
      MICHAEL KELLY:
                   Yes, sir. Counsel has had a chance to visit with
            defendant, Mr. Batchelor, and in my capacity as counselor at
            this time, I have acquiesced and understand his reasoning for
            having filed that motion. He is faced with severe charges
            that, possibly, expose him to a lifelong sentence. He has a
            reason and a feeling, and a — relationship with his counselor,
            if he does not feel comfortable that his counselor is doing
            everything within his benefit, then I believe that he is proper
            to file motions that have that counselor dismissed. And, I
            think that he is also along with that motion, is not necessarily
            asked [sic] that counselor be totally released, but that he have
            stand aside counsel to assist him throughout the proceedings.
            And, I believe recent juris prudence [sic] in litigation has
            shown that is plausible and that is an equitable way of having
            the benefit of being properly represented.

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                                 No. 10-30802

     THE COURT:
                 You mean that he would represent himself and have
           you beside him during that time?
     MICHAEL KELLY:
                 Yes, sir, for whatever questions or pointers of law,
           issues as it relates, whatever procedural devices that he may
           be — that may be warranted. And, that is also — he has a
           right to represent himself. He has a right to be appointed
           counsel. He has rejected said counsel, in lieu of proceedings
           as they transpired. And, I believe he has a pretorinary [sic]
           interest in wanting to get adequate counsel to represent him.
           Counsel has no objection with representing the defendant, nor
           does counsel have objection to stand beside the defendant
           throughout the proceedings.
     TREY PHILIPS:
                 Judge, the State would suggest that although the
           defendant is entitled to be represented by an attorney, he is
           not entitled to the attorney of his choice. And, if we allow
           defendants to start filing these pro se motions every time they
           become upset with their attorney, we would never get
           anything done. Related to any attempt to replace Mr. Kelly,
           he’s done a fine job and has vigorously pursued the defendant.
     THE COURT:
                   Mr. Batchelor, do you have anything to say?
     MARSHALL BATCHELOR:
                   No, sir.
     THE COURT:
                 Court is going to deny your motion to dismiss counsel.
           This matter has been set for trial on March the 20th. I
           believe that everything is now on track and Mr. Kelly is
           certainly well capable of mounting a defense on your behalf.
           I think everything is on track now, and we can proceed.
The transcript shows that Kelly spoke when the trial court asked whether
Batchelor or Kelly had anything to say regarding Batchelor’s Faretta motion.


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                                       No. 10-30802

This is unremarkable given that the court had not yet ruled on Batchelor’s
motion to represent himself. Cf. Moore, 531 F.3d at 402-03. Although Phillips,
the prosecutor, seemed confused about the nature of the motion, his confusion
is not attributable to Batchelor, whose motion was perfectly clear. Moreover,
there is no indication that either the trial court or Kelly was similarly confused.
Kelly was reasonably clear in articulating — consistent with the written motion
— Batchelor’s desire to represent himself, with Kelly acting as standby counsel,
present during the proceedings and able to assist as requested by Batchelor.
The judge asked Kelly, “You mean that he would represent himself and have you
stand beside him during that time?” Kelly answered, “Yes, sir.” Kelly stated
that he had no “objection to stand[ing] beside [Batchelor] throughout the
proceedings” — as opposed to “representing [him]” — to assist with “whatever
questions or pointers of law, . . . [or] procedural devices . . . may be warranted.”
See McKaskle, 465 U.S. at 183 (explaining that it is appropriate for “standby
counsel . . . to assist[] the pro se defendant in overcoming routine procedural or
evidentiary obstacles to the completion of some specific task, such as introducing
evidence or objecting to testimony,” and to “help[] to ensure the defendant’s
compliance with basic rules of courtroom protocol and procedure”). Kelly also
explained that “recent juris prudence [sic] in litigation has shown” such an
arrangement to be “plausible and . . . equitable.”                  See, e.g., McQueen v.
Blackburn, 755 F.3d 1174, 1178 (5th Cir. 1985) (stating that the appointment of
“standby counsel following dismissal of [appointed counsel] . . . is the preferred
practice”).5

       5
        Conflating the distinct concepts of standby counsel and “hybrid representation,” the
state argues that Kelly implied that Batchelor was seeking the latter, a “form of
representation[] [in which] defendant and counsel act, in effect, as co-counsel, with each
speaking for the defense during different phases of the trial.” United States v. Davis, 269 F.3d
514, 519-20 (5th Cir. 2001) (quoting 3 Wayne R. Lafave et al., Criminal Procedure § 11.5(g)
(1999 & 2001 supp.)). That “Faretta does not require a trial judge to permit ‘hybrid’
representation,” McKaskle, 465 U.S. at 183, is irrelevant, because Batchelor never requested

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                                          No. 10-30802

       The state argues that Batchelor failed to reiterate his Faretta request
when the trial court asked if he had anything to say. However, Batchelor was
not required, in order to avoid waiver, to add anything to the straightforward
request that he had already made plain in writing. It was the trial court, and
not Batchelor, which failed to respond properly to the discussion of the Faretta
motion. Under Faretta, the trial court should have initiated a colloquy in which
it made Batchelor “aware of the dangers and disadvantages of self-
representation, so that the record w[ould] establish that he kn[ew] what he
[was] doing and his choice [was] made with eyes open.” Faretta, 422 U.S. at 835
(citation omitted) (internal quotation marks omitted); cf. Moore, 531 F.3d at 402-
03 (“[F]or the judge not to have engaged in a Faretta-compliant colloquy upon
reading the [defendant’s written request to proceed pro se] was an unreasonable
application of Faretta.”). The trial court’s failure to conduct the required Faretta
colloquy is an indication only of the trial court’s error. That the appropriate
colloquy did not occur cannot be construed as an indication of vacillation by
Batchelor. In any event, while the trial court’s stated rationale for denying
Batchelor’s self-representation request was certainly erroneous under Faretta,6
there is no indication that the court misunderstood the nature of Batchelor’s
clear request.7 Thus, as at his appearance on October 14, 1999, Batchelor did


hybrid representation, and the trial court did not deny his Faretta motion because it thought
the motion was one for hybrid representation. Batchelor clearly moved to represent himself
with the assistance of standby counsel, and Kelly reiterated that request.
       6
         See, e.g., Faretta, 422 U.S. at 834 (explaining that, although “in most criminal
prosecutions defendants could better defend with counsel’s guidance than by their own
unskilled efforts[,] . . . [i]t is the defendant[] . . . who must be free personally to decide whether
in his particular case counsel is to his advantage”)
       7
         Contrary to the state appellate court’s finding, the record clearly and convincingly
demonstrates that the trial court explicitly denied Batchelor’s Faretta motion at the hearing
on February 7, 2000. As explained above, the pro se Faretta motion under consideration by
the trial court on February 7, 2000 was specific and unequivocal. Further, the transcript of
the hearing makes unmistakeably clear that the trial court considered Batchelor’s written

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                                          No. 10-30802

nothing inconsistent with his Faretta request at the February 7, 2000 hearing.8
The state advances no other factual basis for a finding that Batchelor abandoned
or vacillated in his request, and our review of the record reveals none.
Accordingly, we conclude that Batchelor has met his burden of rebutting by clear
and convincing evidence the presumptive correctness afforded the state
appellate court’s implicit factual determination that Batchelor equivocated or
abandoned his motion. See 28 U.S.C. § 2254(e)(1).
                                                 3.
       We conclude that the state appellate court’s adjudication of Batchelor’s
Faretta claim resulted in a decision based on an objectively unreasonable factual

request to represent himself and expressly denied that request. The state concedes that the
rehearing panel of the Louisiana appellate court “was incorrect in stating that the trial court
did not rule on Batchelor’s first Faretta request.” Br. of Appellant at 31 n.14; see also id. at
31 (“There is no question that the [Faretta] motion was presented to the trial court — it was
introduced in the February 7, 1999 [sic] hearing . . . . [T]he trial court . . . explicitly denied
[Batchelor’s] motion.”); id. at 39 n.16 (“[T]he [Louisiana appellate court] was incorrect in
stating that the trial court had not ruled on Batchelor’s first request.”).
       8
          The cases cited by the state in support of its waiver argument are inapposite and
unpersuasive, as they do not address the issue presented in this case, in which there was an
unequivocal Faretta request, no conduct inconsistent with that request, and a clear denial of
the request by the trial court. In several of the cited cases there was either no unequivocal
Faretta request or conduct by the defendant inconsistent with that request. See Koon v.
Rushton, 364 F. App’x 22, 28 (4th Cir. 2010) (per curiam) (unpublished) (stating that, “[a]fter
his initial assertion of his Faretta rights, [the defendant] displayed equivocating, contradicting,
and vacillating behavior[] . . . [by] stat[ing] in a letter to the trial court that he ‘may’ represent
himself and not[ing] his ‘possible (pro se) representation’”); Page v. Burger, 406 F.3d 489, 495
(8th Cir. 2005) (concluding that state court reasonably decided that the defendant waived his
Faretta request where the defendant, inter alia, “wrote a note to [appointed counsel]
requesting that [appointed counsel] take over the entire trial”); Phillips v. Henry, 130 F. App’x
160, 161 (9th Cir. 2005) (unpublished) (concluding that state court reasonably decided that the
defendant’s Faretta request was equivocal where the defendant stated during the Faretta
colloquy that pro se status “[was] not actually what [she] want[ed]” and that, in fact,“[she]
want[ed] another attorney, period”). In two others, there was no clear denial of the request
by the trial court, as there was here. See Rayford v. Johnson, No. 00-40023, 2001 WL 498712,
at *2 (5th Cir. Apr. 13, 2001) (per curiam) (unpublished) (stating that the trial court “fail[ed]
to rule expressly on Rayford’s request to represent himself”); Carrasco v. Evans, No. C 06-
7849, 2007 WL 3442558, at *6, 8 (N.D. Cal. Nov. 13, 2007) (unpublished) (stating that the
defendant’s Faretta “motion was not heard” by the trial court and “was never conclusively
denied”).

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                                        No. 10-30802

determination. See id. § 2254(d)(2). While “it is possible [for a] state court [to]
err[] with respect to one factual finding under § 2254(e)(1),” and yet for “its
determination of facts resulting in its decision in the case [to be] reasonable
under § 2254(d)(2),” Valdez, 274 F.3d at 951 n.17, here the waiver issue is
determinative in light of the state’s concession that the state trial court did in
fact deny Batchelor’s Faretta request at the February 7, 2000 hearing. As the
record admits of no basis for a finding that Batchelor waived his request to
represent himself prior to its erroneous denial by the district court at that
hearing, the only reasonable factual determination would have been that
Batchelor did not waive his request. See Blue, 665 F.3d at 654-55 (explaining
that “[a] petitioner must show that ‘a reasonable factfinder must conclude’ that
the state court’s determination of the facts was unreasonable”).9 Therefore, we
conclude that the state appellate court’s decision that Batchelor was not
impermissibly denied the right to represent himself was based on an objectively
unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2); see also
Salts v. Epps, 676 F.3d 468, 2012 WL 1034026, at *6 (5th Cir. Mar. 29, 2012)
(holding that determination by “state appeals court . . . that the [defendants] had
waived their right to conflict-free representation . . . was an unreasonable
determination of fact” under § 2254(d)(2) where the state court record was
“devoid of documentation or evidence of th[e] purported waiver”).




       9
          Indeed, the two dissenting judges of the state appellate court rehearing panel reached
the correct conclusion regarding Batchelor’s claim after making the only reasonable findings
as to the relevant facts. See Batchelor, 823 So. 2d at 378-79 (Norris, C.J., dissenting) (“Any
fair reading of this record shows that Marshall Batchelor clearly and unequivocally requested
the right to represent himself . . . This request [was] neither latent, tentative, nor incidental
to any other demands. It forms the entirety of his request for relief. . . . Batchelor’s motion
was . . . heard in court [on] February 7, 2000. . . The [trial] court stated that it understood
Batchelor’s desire to represent himself with standby counsel, but denied the motion with no
further explanation.”).

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                                   No. 10-30802

                                         IV.
      In sum, we conclude that the trial court violated Batchelor’s Sixth
Amendment right to represent himself by erroneously denying a clear and
unequivocal assertion of that right. See 28 U.S.C. § 2254(a). We further
conclude that Batchelor has demonstrated by clear and convincing evidence that
the state appellate court’s implicit finding that he waived his Faretta request
was erroneous, see id. § 2254(e)(1), and that the state appellate court’s denial of
Batchelor’s claim on direct appeal resulted from an unreasonable determination
of the facts in light of the evidence in the state court record, see id. § 2254(d)(2).
Therefore, § 2254(d) does not bar issuance of the writ.
      Accordingly, we AFFIRM the district court’s grant of habeas relief.




                                         22
