Dyer v. Johnson, 96-20356
| Decision Date | 18 March 1997 |
| Docket Number | No. 96-20356,96-20356 |
| Citation | 108 F.3d 607 |
| Parties | Preston Milton DYER, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Preston Milton Dyer, Tennessee Colony, TX, pro se.
Tommy Lee Skaggs, Asst. Atty. Gen., Austin, TX, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GARWOOD, WIENER, and DeMOSS, Circuit Judges.
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 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 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,...
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