Myers v. Johnson

• Decision Date: 22 February 1996
• Docket Number: No. 94-20513,94-20513
• Parties: Ivey V. MYERS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1330

76 F.3d 1330

Ivey V. MYERS, Petitioner-Appellant, v. Gary L. JOHNSON, Director, Texas Department of Criminal

Justice, Institutional Division, Respondent-Appellee.

No. 94-20513.

United States Court of Appeals, Fifth Circuit.

Feb. 22, 1996.

Ivey V. Myers, Huntsville, TX, pro se.

Elizabeth Elleson, Dan Morales, Atty. Gen., Austin, TX, for appellee.

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

Before KING, DEMOSS and STEWART, Circuit Judges.

PER CURIAM:

In Myers v. Collins, 8 F.3d 249 (5th Cir.1993), we reversed the district court's judgment denying Myers's habeas corpus petition and we remanded to the district court for an evidentiary hearing on whether Myers had abandoned his right to file a pro se brief on direct appeal. Upon remand and following an evidentiary hearing, the district court again denied Myers's petition for habeas corpus, finding that although Myers had not abandoned his right to self-representation on direct appeal, the denial of his right to self-representation was harmless error. Myers appeals the judgment of the district court.

I. BACKGROUND

Ivey V. Myers ("Myers") is currently serving a twenty-five-year term of imprisonment in the custody of the Texas Department of Criminal Justice for an aggravated robbery conviction. Following his conviction, Myers asked the state district court to allow him to represent himself on appeal. The state court granted his request, but informed Myers that standby counsel would be appointed to assist Myers. Instead, the state court appointed Janet Morrow ("Morrow") as appellate counsel for Myers, without indicating to her that she was appointed as standby counsel for a pro se appeal. After the record was compiled, Morrow filed an appellate brief on Myers's behalf, alleging ineffective assistance of trial counsel and requesting that the judgment be reformed to reflect that Myers had only one, not two, previous convictions. Myers asked Morrow for a copy of the transcript, so that he could file a pro se brief, but she failed to provide him with the record. The Texas Fourteenth Court of Appeals affirmed Myers's conviction and reformed the judgment as requested in Morrow's brief. Morrow then filed a petition for discretionary review on Myers's behalf which the Texas Court of Criminal Appeals refused without opinion.

On June 29, 1989, Myers filed a federal habeas corpus petition in the district court, alleging the following:

(1) his Fourteenth Amendment right to due process was violated by:

(a) the inclusion of several aliases in the indictment which prejudiced the jury,

(b) his in-court identification which was prompted by the prosecutor,

(c) his identification in an out-of-court photo spread,

(d) the victim's conflicting testimony to the jury and the police, and

(e) perjury committed by the police investigator and the reporting officer;

(2) his Sixth and Fourteenth Amendment rights to self-representation at trial and on appeal were violated;

(3) his trial counsel rendered ineffective assistance; and

(4) the evidence was insufficient to sustain his conviction.

The district court dismissed the petition on December 19, 1989, holding that Myers had not exhausted his state remedies. On December 28, 1990, this court vacated the judgment of the district court and remanded for consideration of the merits of Myers's petition.

On remand, the state filed a motion to dismiss on grounds that "sufficient evidence supported Myers's conviction, that Myers's due process rights were not violated, that Myers's counsel was not constitutionally ineffective and that there was no error in any alleged denial of Myers's right to represent himself." On October 1, 1991, the district court granted the state's motion, treating it as a motion for summary judgment, and denied Myers's petition for habeas relief.

On appeal from the district court's denial of habeas relief, this court addressed the question whether Myers had been denied his federal constitutional right to represent himself on direct appeal of his conviction. The court determined that "a state criminal defendant has a constitutional right to present pro se motions and briefs on appeal." Myers v. Collins, 8 F.3d 249, 252 (5th Cir.1993). ¹ However, the court concluded that a genuine issue of material fact existed regarding whether Myers had abandoned his right of self-representation. Id. Thus, the court remanded for an evidentiary hearing on the abandonment issue. Id.

Following the evidentiary hearing, the magistrate judge entered recommended findings of fact and conclusions of law. The magistrate judge concluded that Myers was denied his right of self-representation on the first appeal as of right and recommended that the writ be conditionally granted unless the Texas Court of Appeals allowed Myers an out-of-time pro se appeal on the issue of insufficiency of the evidence--the issue not raised by Morrow, his appellate counsel. In response to the state's objections, the magistrate judge amended her report. Although the magistrate judge still found that Myers had not waived or abandoned his right of self-representation, the magistrate judge concluded that Myers had not demonstrated "substantial and injurious effect from Morrow's appellate brief," applying the harmless error standard set out for trial errors in Brecht v. Abramson, 507 U.S. 619, 627-28, 113 S.Ct. 1710, 1716, 123 L.Ed.2d 353 (1993). The district court adopted the magistrate judge's amended report and recommendation on June 14, 1994 and denied Myers's petition for habeas corpus. Myers filed a notice of appeal on July 12, 1994.

II. STANDARD OF REVIEW

In reviewing requests for federal habeas corpus relief, we review the district court's findings of fact for clear error, but review issues of law de novo. Dison v. Whitley, 20 F.3d 185, 186 (5th Cir.1994). A finding of fact is clearly erroneous when, although there is enough evidence to support it, the reviewing court is left with a firm and definite conviction that a mistake has been committed. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948); Henderson v. Belknap (In re Henderson), 18 F.3d 1305, 1307 (5th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 573, 130 L.Ed.2d 490 (1994). If the district court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that, had it been sitting as the trier of fact, it would have weighed the evidence differently. Anderson v. City of Bessemer City, 470 U.S. 564, 573-74, 105 S.Ct. 1504, 1511-12, 84 L.Ed.2d 518 (1985).

III. DISCUSSION

This appeal presents us with three questions. First, we must determine whether the district court's determination that Myers did not abandon his right of self-representation on direct appeal is clearly erroneous. Second, we must decide whether a state criminal defendant's constitutional right to present pro se briefs on the first appeal as of right is amenable to harmless error analysis, applying the standards set forth in Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). Third, if we decide that harmless error analysis applies, we must then determine whether the denial of the right of self-representation was harmless error in this case. Before we reach these questions, however, we will first discuss the existence and scope of the right to self-representation on the first direct appeal.

A. THE RIGHT TO SELF-REPRESENTATION ON DIRECT APPEAL

1. Existence of the Right

The Sixth Amendment to the United States Constitution guarantees every criminal defendant the right to the assistance of counsel at trial. Gideon v. Wainwright, 372 U.S. 335, 345, 83 S.Ct. 792, 797, 9 L.Ed.2d 799 (1963). Implicit in the Sixth Amendment also is the correlative right of a criminal defendant to waive the assistance of counsel and represent himself at trial. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975). Additionally, a criminal defendant has a constitutional right, derived from the Fourteenth Amendment guarantees of due process and equal protection, to the effective assistance of counsel on the first direct appeal from his conviction. Evitts v. Lucey, 469 U.S. 387, 396, 105 S.Ct. 830, 836, 83 L.Ed.2d 821 (1985); Douglas v. California, 372 U.S. 353, 357, 83 S.Ct. 814, 816-17, 9 L.Ed.2d 811 (1963).

In Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948), the Supreme 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." Id. at 285, 68 S.Ct. at 1060. However, this court, distinguishing between the right to present oral argument--which Price determined was not "an essential ingredient of due process," id. at 286, 68 S.Ct. at 1060--and the right to present appellate briefs and motions, and following the Eighth Circuit's decision in Chamberlain v. Ericksen, 744 F.2d 628 (8th Cir.1984), cert. denied, 470 U.S. 1008, 105 S.Ct. 1368, 84 L.Ed.2d 387 (1985), held that "a state criminal defendant has a constitutional right to present pro se briefs and motions on appeal." Myers, 8 F.3d at 252. ²

2. Standby Counsel, Abandonment and Waiver

Because we have so recently recognized the right to present pro se briefs on the first appeal as of right, we have not yet delineated the manner in which this right must be exercised. Thus, we look to the Supreme Court's decisions in Faretta and McKaskle v. Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), addressing the right of self-representation at trial, for guidance in determining the scope of the appellate right to self-representation. In asserting the right of self-representation at trial, first a criminal defendant must knowingly and intelligently waive the right to counsel. Faretta, 422 U.S. at 835, 95 S.Ct. at 2541. Additionally, a trial court should advise a...