Moreno v. Estelle

• Citation: 717 F.2d 171
• Decision Date: 14 October 1983
• Docket Number: No. 82-1417,82-1417
• Parties: Jerry Carlo MORENO, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, and Jim Mattox, Attorney General of the State of Texas, Respondents-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 171

717 F.2d 171

Jerry Carlo MORENO, Petitioner-Appellant, v. W.J. ESTELLE, Jr., Director, Texas Department of Corrections, and Jim Mattox, Attorney General of the State of Texas, Respondents-Appellees.

No. 82-1417.

United States Court of Appeals Fifth Circuit.

Oct. 14, 1983.

Mary L. Sinderson, Houston, Tex., for petitioner-appellant.

Charles A. Palmer, Asst. Atty. Gen., Austin, Tex., for respondents-appellees.

Appeal from the United States District Court for the Northern District of Texas.

Before GEE, GARZA and TATE, Circuit Judges.

TATE, Circuit Judge:

The petitioner Moreno, an inmate of the Texas Department of Corrections, appeals to this court from the denial of his application for federal habeas corpus relief under 28 U.S.C. Sec. 2254. Moreno was convicted in state court of aggravated assault after trial by jury, and sentenced to life imprisonment pursuant to the enhancement provisions of the Texas habitual offender statute, Texas Penal Code Sec. 12.42. On the appeal, as he did in the district court, Moreno raises three contentions in support of his application for relief: (1) that his conviction violated the Sixth and Fourteenth Amendments since he was denied both the right to present his own defense and the effective assistance of counsel, (2) that the trial court refused to allow him to question the jury on range of punishment, and thus denied him the right to meaningfully exercise his peremptory challenges in the jury selection process, and (3) that his sentence of life imprisonment is so disproportionate to the offense committed in that it contravenes the Eighth Amendment's prohibition against cruel and unusual punishment. After an evidentiary hearing on these matters, the district court denied relief. We affirm.

On June 5, 1974, the defendant and two women colleagues attempted to shoplift meat products valued at approximately $23.00 from a grocery store in Dallas. When the two women were detained by the store personnel, Moreno intervened with a pistol and engineered their escape. The defendant was charged with aggravated assault and was convicted after a trial by jury. At the punishment phase of the trial, the state introduced evidence of Moreno's two prior felony convictions in accordance with the enhancement provisions of Sec. 12.42 of the Texas Penal Code. The jury rendered a verdict of "true" as to each of these prior convictions, and the court sentenced Moreno to life imprisonment as required by the enhancement statute. Texas Penal Code Sec. 12.42(d). The defendant appealed. In Moreno v. State, 541 S.W.2d 170 (Tex.Cr.App.1976), the Texas Court of Criminal Appeals affirmed the conviction.

The defendant then filed a petition for federal habeas relief pursuant to 28 U.S.C. Sec. 2254. An evidentiary hearing was held before a United States Magistrate, who recommended that all requested relief be denied. The district judge ordered that a supplemental hearing be held before the Magistrate, after which he adopted the Magistrate's findings and denied Moreno's petition. It is Moreno's appeal from this judgment that is presently before this court.

I. Sixth Amendment Claims

The defendant raises two interrelated, yet distinct, contentions in support of his claim that he was denied his Sixth Amendment guarantee of effective assistance of counsel. First, Moreno argues that he was denied his constitutional right to present his own defense as recognized in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Second, the defendant asserts that, apart from this issue of conducting his own defense, his trial attorney was ineffective since she failed to pursue certain trial strategies suggested by the defendant. We find no reversible merit in either of these contentions. ¹

A. The Defendant's Right to Present His Own Defense

Moreno contends that the trial court denied him the right to present his own defense by requiring him to proceed with retained counsel on the morning of trial, even though he clearly stated to the judge that he was dissatisfied with her representation. In particular, the defendant refers to a discussion with his attorney and the judge that took place just prior to the selection of the jury. During this discussion, the defendant informed the trial judge that he wanted his attorney to withdraw from the case since she was not "helping" him and would not do things that he requested her to do. ² At no point in the discussion, however, did the defendant expressly inform the trial judge that he wished to represent himself without the assistance of counsel.

Moreno argues that the trial court's decision to proceed with the trial after this exchange deprived him of the right "to personally manage and conduct his own defense" under the teaching of Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). Moreno correctly notes that Faretta mandates that a state may not force a lawyer upon an unwilling defendant. Faretta, supra, 422 U.S. at 814-15, 95 S.Ct. at 2531. Hence, Faretta guarantees that a criminal defendant may reject the services of counsel and act as his own attorney if he so wishes. While proceeding without the assistance of counsel may be unwise, the Faretta rule is based on the premise that "the right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails." Faretta, supra, 422 U.S. at 819-20, 95 S.Ct. at 2533.

But while Faretta grants the defendant the right to conduct his own defense, it cautions that such a decision necessarily requires the accused to relinquish "many of the traditional benefits associated with the right to counsel." Faretta, supra, 422 U.S. at 835, 95 S.Ct. at 2541. Thus, the defendant's decision to proceed pro se must be clearly and unequivocally expressed after a knowing and intelligent waiver of the right to proceed with the assistance of counsel. Id. Sitting en banc, we stated,

The right of self-representation entails a waiver of the right to counsel, since a defendant obviously cannot enjoy both rights at trial. Because of the important and well-recognized benefits associated with the right to counsel, see, e.g., Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), it is preeminent in the sense the right attaches unless affirmatively waived. The mere failure to request counsel will not be deemed a waiver. See, e.g., Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1976); Carnley v. Cochran, 369 U.S. 506, 513, 82 S.Ct. 884, 888, 8 L.Ed.2d 70 (1962).

While the right to counsel is in force until waived, the right of self-representation does not attach until asserted. In order for a defendant to represent himself, he must "knowingly and intelligently" forego counsel, and the request must be "clear and unequivocal." Faretta, 422 U.S. at 835, 95 S.Ct. at 2541.

Brown v. Wainwright, 665 F.2d 607, 610 (5th Cir.1982) (en banc).

A review of the record reveals that Moreno did not explicitly inform the trial court that he wished to proceed pro se and thus waive assistance of counsel. ³ He merely informed the court that he was dissatisfied with his attorney and that he wanted her to withdraw. Moreno's stated reasons for this request were that his counsel had failed to carry out certain unspecified requests and that she was not "helping" him; not that he wished to act as his own attorney. We cannot infer from the defendant's general request to the court to dismiss his attorney that he desired to waive counsel and continue the trial pro se. Nor does the trial judge have an obligation to personally inform the defendant of his right to represent himself in such circumstances. Brown v. Wainwright, supra, 665 F.2d at 612.

However, Moreno's counsel on appeal ably argues that a defendant should not be required to explicitly inform the trial court of his wish to proceed pro se in circumstances where his personal defense strategy clearly diverges from that of his attorney. In particular, Moreno asserts in his claim for habeas relief that he wanted his trial attorney to (1) subpoena two witnesses who allegedly would have testified that the pistol he was carrying at the time of the incident could only fire "blank" rounds, thus countering the testimony that he was carrying a "deadly weapon", ⁴ and (2) present evidence that he was temporarily insane at the time of the incident as a result of his methadone treatment for heroin addiction. When (according to his testimony at the habeas hearing) the defendant learned that his attorney did not intend to pursue these strategies, he informed the trial court that he no longer wished to retain her as his counsel. Hence, appellate counsel argues, the defendant was denied his Faretta right to conduct his own defense since the trial court required him to proceed with his retained counsel despite their differences on trial strategy. Under these circumstances, it is argued, Moreno's failure to expressly state his desire to proceed with his trial pro se is of no consequence.

This contention raises a potentially difficult question on the scope of a defendant's rights under Faretta. However, we are unable to reach it on the facts presented by this case. One searches the state trial transcript in vain for an indication that Moreno informed the trial court of this divergence of strategies. Moreno stated only that his counsel was not "helpful" and would not "do things for him", and that he therefore wished that she would withdraw from the case. Nowhere in the state trial record does Moreno state that his attorney is conducting his defense contrary to his instructions or failing to advance viable defenses that he had instructed her to raise. ⁵ The record evidences nothing more than the defendant's general dissatisfaction with his attorney, an expression not uncommonly heard from a defendant who is facing the imminence of...