Myers v. Collins

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

-----------------------------

No. 91-6142
-----------------------------

Ivey v. Myers,
Petitioner-Appellant,
versus

James A Collins, Director,
Texas Deptartment of Criminal
Justice, Institutional Division,
Respondent-Appellee.

--------------------------------------------------
Appeal from the United States District Court
for the Southern District of Texas
-------------------------------------------------
(November 18, 1993)

Before JOHNSON, WIENER, AND DeMOSS, Circuit Judges.

JOHNSON, Circuit Judge:

In this habeas corpus case, petitioner Ivey V. Myers

("Myers") alleges that he is being confined in violation of his

federal constitutional rights. In particular, Myers contends that

he has been denied his right to self-representation on appeal,

that he received ineffective assistance of counsel, that his due

process rights were violated, and that there was insufficient

evidence to support his conviction. The district court granted

summary judgment for the State dismissing all of Myers' claims.

We reverse.

I. FACTS AND PROCEDURAL HISTORY

On Easter Sunday, 1986, Myers drove up next to Samuel Ybarra

on a narrow street, robbed Ybarra at gunpoint and drove off.

While Myers was driving off, Ybarra was able to get the license
number of the vehicle. With this information, the police were

able to trace the vehicle to Myers' mother. Police then showed

Ybarra a picture line-up and Ybarra identified Myers as the man

who had robbed him.

Myers retained counsel to assist him at trial, but he also

wished to actively participate in his own defense.1 Accordingly,

at the beginning of the trial, Myers filed a motion seeking to be

appointed co-counsel. The court denied this motion, though, and

the trial proceeded with Myers' retained counsel presenting Myers'

defense. That defense was unsuccessful. The jury convicted Myers

of aggravated robbery and the judge sentenced him to twenty-five

years' imprisonment.

At the sentencing hearing, Myers served his pro se Motion for

New Trial and Notice of Appeal. Myers also requested that he be

1
In all phases of this criminal proceeding, Myers has
sought to participate in his defense. In that regard, he has
filed numerous pro se documents at trial, in his direct appeal
and in his habeas corpus action. Further, he requested to be
appointed co-counsel at trial and sole counsel on appeal.

2
allowed to represent himself on appeal.2 The court complied with

this request.

Nevertheless, Myers did not represent himself on appeal.3

His appellate brief was instead filed by appointed standby

counsel. The Fourteenth Court of Appeals affirmed the judgment of

the trial court, and Myers' petition for discretionary review,

2
Myers made this request in the following colloquy at the
end of the sentencing hearing:

MYERS: I would like at this time to file my notice of
appeal.

COURT: Certainly, sir.

MYERS: I would like to also advise the Court that I'm
indigent and cannot afford an attorney nor could I afford a
transcript and would the Court provide me these?

COURT: Certainly.

MYERS: As well as the right to be my own lawyer.

COURT: You want to be your own lawyer with no assistance
from a lawyer?

MYERS: This is what I asked the first time and also asked
the second time.

COURT: You may be your own lawyer, sir, but I think I'll
appoint someone to stand by in case you need some assistance.
3
The court appointed Janet Morrow as standby counsel to
assist Myers if needed. Thus, in the court records, Morrow was
listed as attorney of record on appeal and it was Morrow who
secured the trial transcript. Myers contends that he informed
Morrow that he wished to represent himself and that he requested
that Morrow provide him with the transcript. However, Morrow
never provided Myers with the transcript. Instead, she allegedly
told Myers that she had been appointed to represent him and that
if Myers had any problems with that he could take the matter up
with the court. Accordingly, Morrow proceeded to file a brief on
Myers' behalf.

3
also filed by appointed counsel, was denied by the Texas Court of

Criminal Appeals.

Myers then initiated habeas corpus proceedings. His first

federal petition for writ of habeas corpus was denied by the

federal district court for failure to exhaust state remedies. A

panel of this Court vacated that order, however, and remanded the

case for consideration of the merits. On remand, the district

court ordered the State to file a motion for summary judgment as

to the merits of Myers' claims. In response, the State filed a

motion to dismiss contending that sufficient evidence supported

Myers' conviction, that Myers' due process rights were not

violated, that Myers' counsel was not constitutionally ineffective

and that there was no error in any alleged denial of Myers' right

to represent himself. The court treated this motion as a summary

judgment and granted it thereby dismissing all of Myers' claims.

Myers appeals.

II. DISCUSSION

Among other complaints, Myers contends that he has been

denied his federal constitutional right to represent himself on

appeal. This Court has never squarely addressed whether or not a

right of self-representation on appeal flows from the Federal

Constitution to the benefit of state prisoners. Thus, as an

initial matter, we must determine if such a right exists under the

Constitution.

4
A. Self-Representation

1. Trial

In a criminal trial, a defendant has a constitutional right

to the assistance of counsel to aid in the presentation of his

defense. Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792,

797 (1963). See also Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55,

77 L.Ed. 158 (1932). Implicit in this affirmative right to

counsel at trial is its converse--the right to refuse counsel and

represent yourself. McKaskle v. Wiggins, 465 U.S. 168, 174, 104

S.Ct. 944, 949 (1984). This right of self-representation is now

firmly established in a criminal trial. Faretta v. California,

422 U.S. 806, 819, 95 S.Ct. 2525, 2533 (1975).

2. Appeal

There is also a right to counsel for indigents in their first

appeal as a matter of right.4 Douglas v. California, 372 U.S.

353, 358, 83 S.Ct. 814, 817 (1963). However, it is not clear

4
The right to counsel at trial is different from the right
of counsel on appeal. See Evitts v. Lucey, 469 U.S. 387, 392,
105 S.Ct. 830, 834 (1985). At trial, the right of counsel flows
from the explicit grant of that right in the Sixth Amendment made
applicable to the states through the Due Process Clause of the
Fourteenth Amendment. Gideon, 83 S.Ct. at 794. On appeal, the
right to counsel stands on a different constitutional footing.
The cases that have developed the appellate right of counsel
recognize that there is no constitutional right to appeal. Ross
v. Moffitt, 417 U.S. 600, 611, 94 S.Ct. 2437, 2444 (1974); McKane
v. Durston, 153 U.S. 684, 687, 14 S.Ct. 913, 914 (1894).
However, if a right of appeal is granted by statute, the Due
Process and Equal Protection Clauses of the Fourteenth Amendment
demand that the procedures afforded be fair and adequate.
Griffin v. Illinois, 351 U.S. 12, 20, 76 S.Ct. 585, 591 (1956).
To help ensure the fairness of those procedures, counsel must be
appointed for indigent defendants on their first appeal as a
matter of right. Douglas, 83 S.Ct. at 817.

5
whether, or to what extent, this appellate right of counsel

implies its converse--a right of self-representation on appeal.

This is because in Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049

(1948), the Supreme Court held that an appellate court has

discretionary power over whether or not to allow a defendant to

present oral arguments pro se.5 Specifically, the Price Court

stated that

a prisoner has no absolute right to argue his own appeal
or even to be present at the proceedings in an appellate
court. The absence of that right is in sharp contrast
to his constitutional prerogative of being present in
person at each significant stage of a felony prosecution
. . .

Id. at 1060 (citations and footnote omitted). This holding belies

any argument that a defendant has a right to personally present

oral arguments on appeal. Moreover, the above-quoted language

from Price was quoted with approval in Faretta,6 the Supreme Court

case that announced the right to self-representation at trial,

thus undermining any argument that Faretta restricted Price.

The Eighth Circuit, however, has noted a distinction between

the right to present oral arguments and the right to present a

brief to an appellate court. Chamberlain v. Ericksen, 744 F.2d

628, 630 (8th Cir. 1984), cert. denied, 470 U.S. 1008 (1985). As

to presenting oral arguments, the Chamberlain court found that the

above-quoted language from Price foreclosed any right of a

5
This holding was based on the reasoning that "[o]ral
argument on appeal is not an essential ingredient of due process
and it may be circumscribed as to prisoners where reasonable
necessity so dictates." Price, 68 S.Ct. at 1060.
6
95 S.Ct. at 2531.

6
defendant to act pro se. But, this did not foreclose a right of a

defendant to present a pro se brief. In light of this, the court

argued that, whether at trial or on appeal, a defendant should not

be required to have counsel forced upon him or her. Id. Thus,

the Chamberlain court found that a criminal defendant does have a

right under the Constitution to present pro se briefs or motions

on appeal. Id.

The reasoning of the Eighth Circuit in Chamberlain is

persuasive. Whether at trial or appeal, a defendant is not

required to accept unwanted counsel. Accordingly, this Court

agrees with the Eighth Circuit in Chamberlain and we hold that a

state criminal defendant has a constitutional right to present pro

se briefs and motions on appeal.7

B. Summary Judgment

A summary judgment is only appropriate if there is no genuine

issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c); Valles v.

Lynaugh, 835 F.2d 126 (5th Cir. 1988). Moreover, in an appeal of

a summary judgment, a reviewing court must resolve any factual

7
This instant case is presented on collateral review.
Moreover, it could be argued that the holding announced today is
a "new rule" and federal courts are generally barred from
announcing new rules in the habeas corpus setting by Teague v.
Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). However, neither
party has raised this issue and the Supreme Court has recently
announced that the Teague rule is not jurisdictional. Collins v.
Youngblood, 497 U.S. 37, 110 S.Ct. 2715, 2718 (1990). In
Youngblood, a case before the Supreme Court on collateral review,
the State did not raise Teague and the Court expressly refused to
raise it sua sponte. We need not do so either.

7
uncertainties in a light most favorable to the nonmovant.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505

(1986).

In the instant case, the State argues that Myers abandoned

his right to present his appellate brief pro se.8 This occurred,

the State contends, when Myers acquiesced in standby counsel's

participation in his appeal.

Whether or not Myers abandoned this right was a material

question of fact. Viewing the record in a light most favorable to

Myers, we find that this factual question was not resolved.9

Thus, the district court's granting of the State's motion for

summary judgment in the instant case was inappropriate.

III. CONCLUSION

This Court REVERSES the granting of the State's motion for

summary judgment and REMANDS this case to the district court for

8
The State does not contest that Myers invoked this right.
Neither does the State contest that Myers has a constitutional
right to present pro se briefs on appeal. In fact, Texas also
allows a right of self-representation on appeal as a matter of
right while denying any right of a defendant to present oral
argument. Webb v. State, 533 S.W.2d 780, 785 (Tex. Crim. App.
1976).
9
What the record does show is that Myers filed his own
notice of appeal and made his own request for designation of the
record on appeal. Furthermore, the record shows that Myers was
never able to secure a copy of the trial transcript from standby
counsel from which he might have been able to prepare a pro se
brief. Lastly, a document appears in the record wherein Myers
attempted to mandamus the Fourteenth Court of Appeals. The
purpose of this mandamus was to secure for Myers the right to
represent himself on appeal. Viewed in a light most favorable to
Myers, this evidence is sufficient to raise a material issue of
fact as to whether Myers abandoned his right to present a pro se
brief.

8
an evidentiary hearing to determine whether or not Myers abandoned

his right to file a pro se brief on appeal. In light of this

disposition, the Court refrains from addressing Myers' other

claims.

9