Ferguson v. Culliver, No. 07-13030 Non-Argument Calendar.

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: Per Curiam
• Citation: 527 F.3d 1144
• Parties: Drago K. FERGUSON, Jr., Petitioner-Appellant, v. Grant CULLIVER, Attorney General of Alabama, Respondents-Appellees.
• Docket Number: No. 07-13030 Non-Argument Calendar.
• Decision Date: 13 May 2008

527 F.3d 1144 Drago K. FERGUSON, Jr., Petitioner-Appellant,
v.
Grant CULLIVER, Attorney General of Alabama, Respondents-Appellees. No. 07-13030 Non-Argument Calendar. United States Court of Appeals, Eleventh Circuit. May 13, 2008.

[527 F.3d 1145]

Drago K. Ferguson, Jr., Atmore, AL, pro se.

Madeline Hinson Lewis, Montgomery, AL, for Culliver.

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

Before TJOFLAT, BLACK and FAY, Circuit Judges.

PER CURIAM:

Drago K. Ferguson, an Alabama prisoner proceeding pro se, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition. We granted a certificate of appealability ("COA") on the following two issues: (1) whether the district court erred when it denied appellant's self-representation claims in the absence of the trial transcript; and (2) whether the district court erred when it found that appellant's claim concerning the withdrawal of his waiver of the right-to-counsel had been adjudicated on the merits in state court. Ferguson argues that the district court erred when it denied his claim that the state court violated his right to due process by (1) failing to insure that he had knowingly and voluntarily waived his right to counsel and had elected to represent himself at trial, and (2) failing to conduct a Faretta¹ hearing. Ferguson concedes that he told the state court that he wanted to represent himself, but alleges that the state trial court failed to apprise him of the dangers and disadvantages of self-representation. Ferguson also alleges that standby counsel was appointed to assist him, but that counsel interfered with his right to self-representation by refusing to

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assist him in subpoenaing three witnesses and refusing to allow him to cross-examine a state witness.

Second, Ferguson argues that the district court erred when it found that the state court of appeals had adjudicated on the merits his claim concerning the withdrawal of his waiver of the right-to-counsel. He asserts that the state court of appeals never addressed this issue and contends that, for this reason, the district court should have reviewed the claim de novo. Ferguson further argues that the state trial court did not inform him of his ability to withdraw his waiver of counsel at any time during the proceeding, as it was required to do.

For the reasons set forth more fully below, we vacate and remand to the district court for further proceedings.

I.

We review the district court's denial of a § 2254 petition de novo but are "highly deferential" to the state court's decision. Davis v. Jones, 506 F.3d 1325, 1331 (11th Cir.2007). As amended by the AEDPA, 28 U.S.C. § 2254(d) forbids federal courts from granting habeas relief on claims that were previously adjudicated in state court, unless the adjudication

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). We have held that a state court's summary rejection of a claim qualifies as an adjudication on the merits under § 2254(d) so as to warrant deference. Wright v. Moore, 278 F.3d 1245, 1253-54 (11th Cir.2002). In Wright, the defendant argued, as does Ferguson, that the district court erroneously gave deference under § 2254(d)(1) to the state court's rejection of his constitutional claim where the state court issued a two-sentence opinion affirming the defendant's convictions and sentences.² Id. at 1252-54. We concluded, however, that the defendant's federal claim was "raised on direct appeal and rejected on the merits without discussion" by the state appellate court and the state appellate court's summary rejection of the claim was thus an adjudication on the merits. Id. at 1253-54. We reasoned that the plain language of the statute only required "a rejection of the claim on the merits, not an explanation." Id. at 1254-55.

Ferguson raised his Sixth Amendment claim in a Rule 32 petition for postconviction relief. The state appellate court summarized the claim in a memorandum order before expressly rejecting all of Ferguson's claims. Under Wright, Ferguson's argument that the claim was never directly addressed on the merits is foreclosed.

II.

In reviewing the district court's denial of a 28 U.S.C. § 2254 petition, we "review questions of law and mixed questions of law and fact de novo, and findings of fact for clear error." Nyland v. Moore, 216 F.3d 1264, 1266 (11th Cir.2000). "A district court's conclusion that a defendant's waiver [of assistance of counsel] is

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valid — that it is knowing, voluntary, and intelligent — is a mixed question of law and fact that we review de novo." United State v. Kimball, 291 F.3d 726, 730 (11th Cir.2002) (per curiam). In a habeas proceeding challenging a conviction, the petitioner has the burden of proving that the waiver did not meet constitutional standards. Strozier v. Newsome, 926 F.2d 1100, 1104 (11th Cir.1991).

The Supreme Court has held that a defendant has a right to represent himself but, in order to represent himself, he must "knowingly and intelligently" waive his right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. We have held that:

To...