United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 26, 2007
______________________
Charles R. Fulbruge III
No. 05-70042 Clerk
______________________
JEFFERY LEE WOOD,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Texas
________________________________________________
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
DENNIS, Circuit Judge:
This case involves a 28 U.S.C. § 2254 petition filed by
Jeffery Wood, a Texas death row inmate. The district court
dismissed the petition in its entirety, but granted Wood a
certificate of appealability (“COA”) on his claims: (1) that the
state trial court violated his Sixth Amendment right to self-
representation by denying his request to proceed pro se during the
punishment phase of his trial; and (2) in the alternative, that his
trial counsel were ineffective for failing to present any
mitigating evidence during the punishment phase of Wood’s trial.1
1
Wood makes several additional arguments in connection with
his ineffective assistance of counsel claim, specifically that: (1)
1
We conclude that the state court’s decision denying Wood’s claims
was not contrary to, and did not involve an unreasonable
application of, clearly established federal law, and we therefore
AFFIRM.
I. Background
On January 22, 1996, petitioner Jeffery Wood was indicted in
Texas for capital murder in connection with a shooting that
occurred during a convenience store robbery. Prior to trial, the
state court conducted two competency hearings to determine whether
Wood was competent to stand trial. At the conclusion of the first,
a jury determined that Wood was not competent to stand trial at
that time, but would likely attain competency in the foreseeable
future. After that hearing, Wood was committed to a state
psychiatric facility. The facility’s staff later informed the
court that it believed that Wood was competent to stand trial. At
that point, the trial court held a second competency hearing, at
which the jury determined that Wood was competent to stand trial.
Wood was convicted of capital murder by a jury on February 25,
1998. Immediately after the jury returned its guilty verdict, Wood
because counsel failed to present any evidence during the
punishment phase, the court should presume that Wood was prejudiced
by their ineffective assistance, see United States v. Cronic, 466
U.S. 648 (1984); and (2) that counsel should have requested a
competency evaluation during the punishment phase of the trial.
The district court found that these additional arguments had not
been fairly presented to the state courts and were therefore
procedurally defaulted, but it granted Wood a COA on these related
claims.
2
informed the trial judge that he wanted to terminate his lawyers
and proceed pro se during the punishment phase of his trial.2 Wood
said that he was not dissatisfied with counsel’s representation,
but explained that he did not want to present any evidence during
the punishment phase or cross-examine any of the state’s witnesses.
Wood further stated that he did not want to force his lawyers to
sit and do nothing on his behalf and that, in any event, he did not
believe that they would comply with his wishes.
The trial court denied Wood’s motion. The court first
informed Wood that he controlled the conduct of his attorneys:
“Mr. Wood, you control your defense. You know, attorneys
ultimately are going to have to follow your lead as to what you
want to do. They can’t overrule you.” The court then stated that
it was denying Wood’s motion to proceed pro se because it wanted to
ensure that he was able to understand the sentencing proceedings:
I’m going to deny your request to represent
yourself in the second phase. The issue,
especially the death penalty issue, is so
intense from both an emotional standpoint and
a legal standpoint, that I don’t feel
comfortable with you understanding all the
concepts of what’s going on and not having
legal counsel that you can rely on.
. . . .
But I’m going -- I’m going to tell you once
2
The following colloquy was reprinted in the district court’s
opinion. See Wood v. Dretke, 386 F. Supp. 2d 820 (W.D. Tex. 2005).
3
again that you need to direct your attorneys
on how you want them to prepare your defense
or how you want them to react to evidence and
then rely on their expertise in doing what you
want to do, but I’m going to deny your request
to fire your attorneys.
After the court ruled, defense counsel expressed concern that
the ruling put them “on the horns of a dilemma” about whether or
not to follow their client’s instructions, since Wood had
instructed them to not cross-examine any of the state’s witnesses
and to not call any defense witnesses during the punishment phase.
The trial judge acknowledged the difficulty of the situation, but
reminded counsel that “it’s your client and your call whether or
nor [sic] you want to bring [defense witnesses] or cross-examine
anybody. I can’t tell you to do or not to do it.”3 During this
exchange, the trial court explained in further detail its reasons
for denying Wood’s motion to proceed pro se:
[I]f the Defendant would have wanted to do his
own defense and had theories about how he
wanted to conduct his own defense, I think I
would have to go through a very slow process
of determining whether or not he had
voluntarily decided to waive his right to
counsel and had the ability to go ahead and
present his own defenses, but it appears, kind
of reading through the lines, that Mr. Wood
wants to not put – to not defend himself.
. . . .
And if he doesn’t want to defend himself, I
want him to have counsel to tell him what that
3
The court permitted counsel to document Wood’s instructions
to them by having Wood speak to them with a court reporter present.
Counsel did this on at least two occasions.
4
means and to explain to him what his options
are if he doesn’t want to examine a witness,
what that means by not cross-examining or
calling a witness, and so I want him to have
attorneys there telling him what everything
means, every step when you’re making this
decision . . . .
I’m going to stay with my prior ruling of not
allowing Mr. Wood to represent himself and
keeping you and Mr. Whitlow on the case, but I
would welcome you to take a look at this issue
and see if you can find any precedent for it
in the next two or three days.
Several days later, Wood renewed his request to proceed pro se
by written motion. Shortly before the punishment phase of the
trial was to begin, the court addressed, and denied, Wood’s renewed
motion. After eliciting Wood’s admission that counsel were
cooperating with his directives, the court again explained its
ruling:
Based on the testimony I’ve heard about your
educational background and your experience
with the criminal justice system, I’m of the
opinion that you still need to have counsel
with you that you could ask questions of and
make sure that you know what’s going on and
that you’re not taken advantage of by this
proceeding, so I note that you have requested
to represent yourself and I’m going to deny
that request and continue these gentlemen as
your counsel and you have the advantage of
calling on them whenever you want to call on
them during the punishment phase of trial.
The trial court does not appear to have considered the timing of
Wood’s motion as a factor in denying his request to proceed pro se.
Throughout the punishment phase of the trial, Wood’s counsel
complied with his instructions. They did not cross-examine any of
5
the state’s punishment-phase witnesses, and the defense did not
present any evidence of its own. After deliberating for
approximately one hour, the jury returned a verdict that: (1) Wood
would be a future danger to society; (2) Wood deliberately caused
the death of the victim; and (3) there were insufficient mitigating
circumstances to warrant a life sentence. Wood was sentenced to
death based on those jury findings.
Wood’s conviction and sentence were affirmed on direct appeal.
In March 2000, Wood filed a state habeas petition asserting some 29
claims for relief. On October 2, 2000, the state trial court
denied relief. As is relevant here, the court found that: (1) the
trial court did not err in denying Wood’s request to proceed pro se
because, based on the trial court’s “accumulated knowledge” of
Wood’s circumstances, it “was in an adequate position to make and
[sic] meaningful determination on the issue,” and because “the
request for self-representation was not presented in a timely
manner”; and (2) trial counsel did not provide ineffective
assistance, in light of Wood’s specific and repeated directives
that counsel not put on a defense during the punishment phase of
the trial. On May 9, 2001, the Texas Court of Criminal Appeals
adopted the trial court’s findings of fact and conclusions of law
and denied relief.4
4
Because the Court of Criminal Appeals simply adopted
wholesale the habeas trial court’s findings and conclusions, we
refer only to the “state habeas court” throughout this opinion.
6
Wood then filed his section 2254 petition with the district
court. In a lengthy opinion dated August 24, 2005, the district
court dismissed the petition. With respect to Wood’s request to
proceed pro se, the district court first noted that the state trial
court applied an incorrect legal standard when it denied Wood’s
motions. Wood, 386 F. Supp. 2d at 857. Nevertheless, the district
court held that the state habeas court’s decision denying Wood
relief on this claim was not an unreasonable application of federal
law because “the core concerns of Faretta [v. California, 422 U.S.
806 (1975)] were not violated during the punishment phase of
petitioner’s trial.” Id. at 858-60. Relying on McKaskle v.
Wiggins, 465 U.S. 168 (1984), the district court reasoned that,
under the circumstances, Wood’s lawyers “served as little more than
standby counsel for petitioner during the punishment phase” of the
trial, and that the state habeas court could therefore have
reasonably concluded that this arrangement did not run afoul of
Faretta’s “core” concern, i.e., that Wood be able to maintain
control over the conduct of his defense. Wood, 386 F. Supp. 2d at
858-60. In light of this disposition, the district court did not
reach the state habeas court’s additional finding that Wood’s
motion to proceed pro se was untimely. Id. at 860 n.72.
With respect to Wood’s ineffective assistance of counsel
claims, the district court found that two of Wood’s arguments —
that he was entitled to a presumption of prejudice under the
7
Supreme Court’s decision in Cronic, see 466 U.S. at 659-62, and
that counsel were ineffective for failing to request a competency
evaluation during the punishment phase of the trial — were not
exhausted before the state courts and were therefore procedurally
defaulted. Wood, 386 F. Supp. 2d at 839-48, 863-65. As for Wood’s
exhausted claim — that his trial attorneys were ineffective because
they complied with his instructions and failed to present any
mitigating evidence during the punishment phase — the district
court found that Wood failed to establish that he was prejudiced by
counsel’s failure to put on a mitigation case. Because Wood had
not shown prejudice, the district court declined to decide whether
counsel’s performance was deficient. Id. at 849-53.
II. Standard of Review
This court reviews the district court’s findings of fact for
clear error and its legal conclusions de novo, applying the same
standards as the district court. See, e.g., Thompson v. Cain, 161
F.3d 802, 805 (5th Cir. 1998).
Wood’s application for section 2254 relief is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
Under AEDPA, a federal habeas court may not grant relief to a
prisoner serving a state sentence with respect to any claim
adjudicated on the merits in a state court unless the state court
ruling “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
8
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d). A state decision is “contrary to” clearly established
federal law if the state court applies a rule that is
“substantially different from” or “contradicts” governing Supreme
Court precedent, or if the state court reaches a decision opposite
that reached by the Supreme Court on a set of materially
indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405
(2000).
A decision involves an “unreasonable application” of federal
law if the state court “correctly identifies the governing legal
rule but applies it unreasonably to the facts of a particular
prisoner’s case.” Id. at 407-08. An “unreasonable application” of
federal law must be something more than a mere incorrect
application. Id. at 410-11 (“[A] federal habeas court may not
issue the writ simply because that court concludes in its
independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly.
Rather, that application must also be unreasonable.”).
The state court’s findings of fact are entitled to a
presumption of correctness that can be rebutted only by clear and
convincing evidence. 28 U.S.C. § 2254(e)(1).
III. Wood’s Faretta Claim
Under the principles announced by the Supreme Court in Faretta
v. California, 422 U.S. 806, 835-36 (1975), a competent criminal
9
defendant has a Sixth Amendment right to represent himself at trial
if he waives his right to counsel, and a trial court cannot deny
the defendant’s motion to proceed pro se on the ground that the
defendant lacks sufficient knowledge or understanding of the law.
The Faretta right is not, however, without limitation. The
exercise of the right to self-representation is contingent on the
defendant’s knowing and intelligent waiver of the right to be
represented by counsel. See id. at 835.5 The Faretta court also
noted that a court may terminate the right to self-representation
where the defendant fails to abide by courtroom rules and/or
engages in obstructionist conduct. Id. at 834 & n.46. Moreover,
a trial court can appoint stand-by counsel to assist the defendant
(even over the defendant’s objection), so long as stand-by counsel
does not unduly impinge on the defendant’s self-representation.
Id. at 834 n.46; McKaskle, 465 U.S. at 174-79. Finally, a trial
court need not permit a defendant to proceed pro se where the
defendant’s motion to do so is untimely. See, e.g., Martinez v.
Court of Appeal, 528 U.S. 152, 162 (2000) (noting that “most
courts” require defendant to assert right to self-representation
“in a timely manner”).
In this case, the state habeas court provided two reasons for
5
In Godinez v. Moran, 509 U.S. 389, 399-402 (1993), the
Supreme Court held that the standard of competency for waiving the
right to counsel is the same as the standard for determining
whether a defendant is competent to stand trial.
10
its denial of Wood’s Faretta claim: (1) that the trial court had
“accumulated knowledge of [Wood’s] circumstances” and “was in an
adequate position to make and [sic] meaningful determination of the
issue”; and (2) that Wood’s motion to proceed pro se was untimely.
The federal district court held that, although the trial court and
the state habeas court applied an incorrect substantive legal
standard when considering Wood’s motion to represent himself, the
decision to deny the motion was not an unreasonable application of
federal law. The district court did not reach the state habeas
court’s additional finding that Wood’s motion was untimely.
Because we hold that the state habeas court did not unreasonably
apply federal law when it held that Wood’s motion was untimely, we
do not reach its decision on the substance of Wood’s claim.
As noted above, courts have discretion about whether to grant
a defendant’s motion to proceed pro se when the motion is untimely.
See, e.g., Martinez, 528 U.S. at 162; United States v. Davis, 269
F.3d 514, 520 (5th Cir. 2001) (“The district court was not obliged
to honor Davis’s mid-trial request to represent himself.”) (citing
Moreno v. Estelle, 717 F.2d 171, 176 (5th Cir. 1983)); see
also Haynes v. Cain, 298 F.3d 375, 384 (5th Cir. 2002) (en banc)
(Dennis, J., concurring). In this case, Wood did not move to
proceed pro se until after the jury had already returned a guilty
verdict against him, immediately before the sentencing phase of his
trial, and the trial court therefore had the discretion to deny the
11
motion. Although the trial court did not base its decision on the
untimeliness of Wood’s motion,6 the last reasoned state court
decision — the decision of the state habeas court — did. Because
no decision of the Supreme Court obligates state courts to permit
self-representation when the defendant fails to invoke his Faretta
right in a timely manner, we are compelled to find that the state
habeas court’s holding that Wood was not entitled to relief because
his motion was untimely was neither contrary to, nor an
unreasonable application of, federal law. See Marshall v. Taylor,
395 F.3d 1058, 1060-62 (9th Cir.) (rejecting Faretta claim where
trial court denied motion for self-representation for impermissible
reason, but state appellate court found that motion was untimely),
cert. denied, 126 S. Ct. 139 (2005).
IV. Ineffective Assistance of Counsel
To prevail on a claim of ineffective assistance of counsel, a
defendant must ordinarily establish both that counsel’s performance
was objectively deficient and that the defendant was prejudiced by
counsel’s deficient performance. Strickland v. Washington, 466
U.S. 668, 687 (1984). Counsel’s performance is evaluated against
an objective standard of reasonable performance based on accepted
professional norms. See Rompilla v. Beard, 545 U.S. 374, 380
6
Indeed, the trial court appears to have denied Wood’s motion
for the impermissible reason that the court did not believe that
Wood was capable of adequately representing himself without
counsel.
12
(2005). To show prejudice, a petitioner must establish that but
for counsel’s performance, there is a reasonable probability that
the outcome of the proceeding would have been different.
Strickland, 466 U.S. at 694. To assess prejudice in the capital
sentencing context, the court “reweigh[s] the evidence in
aggravation against the totality of the available mitigating
evidence.” Wiggins v. Smith, 539 U.S. 510, 534 (2003).
The district court found that Wood had exhausted his state
remedies with respect to only one of his three, related ineffective
assistance of counsel claims — his primary claim that trial counsel
were ineffective for following his instructions and not presenting
any mitigating evidence during the punishment phase of the trial.7
The state habeas court rejected this claim, holding that Wood’s
counsel did not render deficient performance. The district court
denied relief on the ground that Wood was not prejudiced by any
deficient performance because the mitigating evidence that Wood
claims his counsel should have presented was “extremely meager” in
comparison to the prosecution’s punishment-phase evidence. See
7
It is of note that Wood argues only that counsel were
ineffective for failing to present mitigating evidence; he does not
claim that counsel failed to conduct a sufficient investigation for
mitigation evidence. See, e.g., Blanco v. Singletary, 943 F.2d
1477, 1502 (11th Cir. 1991) (“[A] defendant’s desires not to
present mitigating evidence do not terminate counsel’s
responsibilities during the sentencing phase of a death penalty
trial: ‘The reason lawyers may not ‘blindly follow’ such commands
is that although the decision whether to use such evidence is for
the client, the lawyer first must evaluate potential avenues and
advise the client of those offering potential merit.’”) (quoting
Thompson v. Wainwright, 787 F.2d 1447, 1451 (11th Cir. 1986)).
13
Wood, 386 F. Supp. 2d at 850-52.8
Wood is not entitled to relief on this claim. Neither the
Supreme Court nor this court has ever held that a lawyer provides
ineffective assistance by complying with the client’s clear and
unambiguous instructions to not present evidence. In fact, this
court has held on several occasions that a defendant cannot
instruct his counsel not to present evidence at trial and then
later claim that his lawyer performed deficiently by following
those instructions. In Autry v. McKaskle, 727 F.2d 358 (5th Cir.
1984), the defendant prevented his attorney from presenting any
mitigating evidence during the punishment phase of his capital
trial. A panel of this court rejected Autry’s claim that counsel
was ineffective for heeding his instructions: “If Autry knowingly
made the choices, [his lawyer] was ethically bound to follow
Autry’s wishes.” Id. at 362;9 see also Arnold v. Cockrell, 273
F.3d 1094 (5th Cir. 2001) (unpublished). Moreover, other decisions
of this court have rejected similar claims. See Nixon v. Epps, 405
F.3d 318, 325-26 (5th Cir. 2005) (finding that counsel was not
8
The district court did not determine whether Wood had
established deficient performance, but it did note what it
considered to be an “obvious conflict between the plain language of
Strickland” and the state’s reading of several Fifth Circuit cases
that state that a defendant cannot prevent his counsel from
presenting a particular defense and later claim that counsel was
ineffective for having failed to present that defense. Id. at 854.
9
The Autry court also rejected the defendant’s claim that
counsel was required to request a competency hearing before
agreeing to comply with the client’s decisions. Id.
14
ineffective for failing to present additional mitigating evidence
over client’s objection; “A defendant cannot block his counsel from
attempting one line of defense at trial, and then on appeal assert
that counsel was ineffective for failing to introduce evidence
supporting that defense.”); Roberts v. Dretke, 356 F.3d 632, 638
(5th Cir. 2004) (noting that defendant may not obstruct attorney’s
efforts, then claim ineffective assistance of counsel); Dowthitt v.
Johnson, 230 F.3d 733, 748 (5th Cir. 2000) (finding that counsel
was not ineffective for failing to call family members during
punishment phase where defendant stated that he did not want family
members to testify).10
The record in this case reflects that Wood clearly and
repeatedly instructed his trial counsel to sit idly throughout the
sentencing phase of his trial. On these facts, the state court’s
decision holding that Wood could not show that counsel performed
deficiently was not an unreasonable application of Strickland.11
Wood’s remaining ineffective assistance of counsel claim is
10
Cf. Schriro v. Landrigan, 127 S. Ct. 1933, 1940-41 (2007)
(stating that, if defendant instructed counsel not to present
mitigating evidence, “counsel’s failure to investigate further
could not have been prejudicial under Strickland”); Amos v. Scott,
61 F.3d 333, 348-49 (5th Cir. 1995) (denying ineffective assistance
claim for want of prejudice where defendant “strongly opposed”
presenting any witnesses during punishment phase of trial).
11
Because Wood’s claim fails on the deficient performance
prong, we do not consider Wood’s additional claim (which the
district court dismissed as unexhausted) that counsel’s performance
should be presumed to be prejudicial under United States v. Cronic,
466 U.S. 648 (1984).
15
that counsel should have sought a mid-trial competency evaluation
to determine whether Wood was competent to instruct his attorneys
to not present mitigating evidence. The district court dismissed
this claim as unexhausted. Even assuming that the claim was
properly exhausted, however, Wood is not entitled to relief, as
counsel did not perform deficiently by failing to request a
competency evaluation.
The Supreme Court has held that a defendant who is competent
to stand trial is also competent to waive the right to have the
assistance of counsel. See Godinez, 509 U.S. at 399-402. It
follows logically that this court cannot impose any higher, or more
stringent, standard of competency where a defendant who is
represented by counsel wishes to override counsel’s advice. See
Arnold, 273 F.3d 1094, at *1 (unpublished) (“Because Arnold was
competent to stand trial and therefore to waive his right to
counsel, he was, a fortiori, competent to override the advice of
counsel.”) (citing Coleman v. Mitchell, 244 F.3d 533, 545 (6th Cir.
2001)).
In this case, the trial court expressly determined that Wood
was competent to stand trial at a competency hearing held shortly
before trial. The only evidence that Wood offers as support for
his claim that he was not competent is an affidavit from one of his
trial counsel that states, in pertinent part:
I felt Mr. Wood’s request to [present no
defense at the penalty phase] was an
16
irrational request. Indeed, it was my
personal belief that Mr. Wood was incompetent
to make a rational, well thought out choice on
how to best conduct the sentencing phase of
his trial.
Wood’s allegations do not make out a claim for relief. In
Autry, this court held that a competency hearing is not
automatically required before counsel can accept a client’s
decision to not present evidence during the sentencing phase of a
capital trial. Autry, 727 F.2d at 362 (“It does not follow for us
that refusing to plead for mercy after being convicted of two
execution-style slayings will alone so implicate a defendant’s
competency as to render his counsel constitutionally ineffective
for not seeking an inquiry into competency before abiding the
client’s decision.”); see also Moran, 509 U.S. at 401 n.13 (stating
that a court is not “required to make a competency determination in
every case in which a defendant seeks to plead guilty or to waive
his right to counsel. As in any criminal case, a competency
determination is necessary only when a court has reason to doubt
the defendant’s competence.”). In addition, counsel’s belief that
the defendant’s decision is ill-advised is not sufficient to
trigger a duty to inquire into the defendant’s competence. Autry,
727 F.2d at 363 (“Carver was not ineffective in not seeking a
competency hearing before abiding Autry’s decision, absent a more
substantial reason to suspect incompetence than the lawyer’s view
that Autry’s decision was injurious to the case.”). The affidavit
17
from Wood’s counsel in this case simply does not speak to the
relevant competency standard of whether Wood was competent to stand
trial. Rather, it says only that counsel thought that Wood was not
competent to decide how to best present a penalty-phase defense.
Moreover, Wood has not pointed to any other facts that would
suggest that he was not competent to stand trial. Accordingly,
Wood has not presented any evidence that would call his competence
into question or show that counsel performed deficiently by failing
to ask for an additional competency evaluation, and he is therefore
not entitled to relief.
V. Conclusion
For the reasons stated above, we AFFIRM the judgment of the
district court dismissing Wood’s 28 U.S.C. § 2254 petition.
18