UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-20356
PRESTON MILTON DYER,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT
OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
March 18, 1997
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:
Petitioner/Appellant Preston Milton Dyer pleaded not guilty to
a charge of murder in Texas state court. On May 7, 1991, a jury
found Dyer guilty as charged and assessed punishment at life
imprisonment. The Fourteenth Court of Appeals affirmed Dyer’s
conviction on January 23, 1992. Dyer filed a petition for
discretionary review which was refused by the Texas Court of
Criminal Appeals on June 24, 1992. Dyer next filed an application
for state writ of habeas corpus, arguing that he was denied his
right to self-representation on direct appeal. On July 20, 1994,
the Court of Criminal Appeals denied his application. Dyer then
filed a petition for federal habeas corpus relief in federal
district court, again arguing that he was denied his right to self-
representation on direct appeal. On March 27, 1996, the district
court granted summary judgment in favor of Respondent. Dyer now
appeals.
Dyer was convicted in state court on May 7, 1991. He filed a
notice of appeal on May 10, 1991. The statement of facts was filed
with the Court of Appeals on July 9, 1991. Dyer’s appellate brief
was filed on September 9, 1991, by his appointed counsel, and the
State’s brief was filed on November 4, 1991. On November 12, 1991,
Dyer filed his motion to dismiss counsel and proceed pro se. On
November 21, the Court of Appeals ordered the trial court to
conduct a hearing and make certain findings of fact in regard to
Dyer’s motion.
On December 19, 1991, the state trial court conducted a
hearing. At the hearing, Dyer told the trial court that he wanted
to dismiss his court-appointed counsel and represent himself pro
se, stating that, “she’s been misleading me.” Dyer indicated
displeasure with the brief filed by his counsel and said, “she
delayed me and let all my rights be waived.” Dyer also said that
his counsel misled him and “abandoned” him by failing to perfect an
appeal. When the trial court told Dyer that his counsel had
perfected an appeal on his behalf, Dyer stated that he was
dissatisfied with the statement of facts contained within the
brief. Dyer also alleged that his counsel failed to “communicate”
with him. Several times during the hearing, Dyer indicated that
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his real intent was to proceed pro se with his appointed counsel.
When the trial court informed him that he had no such right, he
expressed a desire to discharge his counsel and proceed pro se.
Upon conclusion of the hearing, the state trial court made the
following findings of fact:
The Court wishes the record to reflect
that the first trial attorney appointed on
this case was Mr. Jose Gutierrez.
***
That with respect to this defendant, that he
was unable to maintain an appropriate
relationship with his first court-appointed
attorney in this case and was, in fact,
abusive to Mr. Gutierrez to such an extent
that it destroyed Mr. Gutierrez’ ability to
effectively represent him and that,
accordingly, that attorney was permitted to
withdraw. Mr. Ron Mock was then appointed to
undertake the representation of Mr. Dyer.
The Court finds that no lawyer will
satisfy Mr. Dyer.
***
The Court further finds that this man is
not educated in the law; that he is a
contumacious individual; that no attorney
could satisfy him.
The Court finds that his waiver of lawyer
is certainly voluntarily made. The court has
a question in its mind as to whether this is
an intelligent waiver. Certainly this man has
displayed this understanding of the
consequences of pro se representation. The
Court does not think it is in the best
interest of justice or Mr. Dyer that he
represent himself.
***
I find Mr. Dyer to be belligerent.
Relying upon these fact findings by the state trial court, the
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state court of appeals denied Dyer’s motion to proceed pro se and
held as follows:
Appellant’s brief was filed on September
9, 1991, and the State’s brief was filed on
November 4, 1991, at which time the case
became subject to disposition. On November
12, 1991, appellant filed his motion to
dismiss counsel and proceed pro se.
***
We hold that, under the circumstances,
appellant’s assertion of his right to self-
representation was not timely and that
granting such motion at this time would
obstruct the orderly procedure of the court.
From past experience we are aware that if
pro se representation is permitted at this
juncture, it would take at least a month
before the record could be prepared and
forwarded to appellant. Appellant would then
have thirty days, barring any extensions, to
file his brief. The State would thereafter
have twenty-five days to file its response.
In the event appellant did not timely file his
brief, one or more additional hearings would
be required. It might then become necessary
to appoint new counsel, in which case another
series of delays would be inevitable. To
permit pro se representation at this point
would delay the proceedings a minimum of three
months, and conceivably much longer. Finding
that appellant did not timely assert his
motion to proceed pro se, we overrule such
motion.
At federal habeas corpus review, the federal district court
considered both the factual findings of the state trial court, as
well as the reasoning of the state court of appeals. The district
court concluded that “allowing the Petitioner to assert the right
to self-representation six months after notice of appeal, two
months after his appellate brief was filed, and after the State’s
appellate brief was filed, would obstruct the orderly
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administration of justice and compromise the integrity of the
appellate process.” The district court added that “such an impact
stands in stark contrast to the minimal effect of a defendant’s
assertion of the right to self-representation made shortly before
trial.” Accordingly, the district court denied Dyer his petition
for habeas corpus relief.
“When considering requests for federal habeas corpus relief,
this Court has frequently explained that we review the district
court's factual findings for clear error, but review issues of law
de novo.” Trest v. Whitely, 94 F.3d 1005, 1007 (5th Cir. 1997).
This case precisely fits the language in Myers v. Johnson, 76
F.3d 1330, 1335 (5th Cir. 1996):
...when a criminal appellant accepts the assistance
of counsel, but later objects to his attorney’s
appeal strategy or preparation of the brief, the
criminal appellant cannot then expect to be allowed
to file a supplemental pro se brief. By accepting
the assistance of counsel the criminal appellant
waives his right to present pro se briefs on direct
appeal.
After carefully reviewing the briefs, the record, and the
relevant case law, we are satisfied that the decision of the
district court to deny Dyer’s petition for writ of habeas corpus
was not made in error. Accordingly, the judgment of the district
court is, in all things,
AFFIRMED.
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