United States District Court, E.D. Louisiana
ORDER AND REASONS
S. VANCE UNITED STATES DISTRICT JUDGE.
the Court is William Anthony Henderson's petition for a
writ of habeas corpus pursuant to 28 U.S.C. § 2254. The
Court has reviewed de novo the petition,
record, the applicable law, the Magistrate Judge's Report
and Recommendation,  and petitioner's
objections. Because the Magistrate Judge was correct
that the trial court conducted an acceptable Faretta
hearing, the petition is dismissed.
was charged with second degree murder and cruelty to a
juvenile. During his trial, Henderson moved to
represent himself. The trial judge then began a
Faretta hearing, to ensure that Henderson was
competent to waive his right to representation and that he
understood the dangers and disadvantages of
self-representation. See Faretta v. California, 422
U.S. 806, 835 (1975). The judge engaged in a meaningful
Faretta hearing, in which he advised Henderson of
various constitutional rights; asked Henderson various
questions about his age, education, and employment; and
inquired into his understanding of the law and courtroom
procedures. At the end of the Faretta
hearing, Henderson withdrew his motion for
takes issue with only one minor part of the Faretta
hearing. Specifically, he objects to the portion of the
hearing in which the trial court asked Henderson if he
understood that by taking the stand, he could not just
“stand and tell [his] story, ” but that he would
have to ask questions of himself. Henderson indicated that he
had not been aware of that procedural requirement, but that
he understood it once the judge explained it.Henderson argues
this particular question produced a “chilling
effect” and was “misleading and unnecessary to
determine [Henderson's] competency to waive his right to
thrust of Henderson's argument is that this question from
the trial court did not speak to Henderson's competency
to waive his right to counsel, but rather his competency to
represent himself. Henderson is correct that “the
competence that is required of a defendant to waive his right
to counsel is the competence to waive the right, not the
competence to represent himself.” Godinez v.
Moran, 509 U.S. 389, 399 (1993) (emphasis removed). But
Henderson misunderstands that Faretta hearings also
serve the purpose of ensuring that a defendant is “made
aware of the dangers and disadvantages of
self-representation, so that the record will establish that
‘he knows what he is doing and his choice is made with
eyes open.'” Faretta v. California, 422
U.S. 806, 835 (1975) (quoting Adams v. United States ex
rel. McCann, 317 U.S. 269, 279 (1942)).
such “danger and disadvantage” of
self-representation is a lack of familiarity with the
procedural and evidentiary rules that govern proceedings.
Thus, questions regarding understanding of courtroom
proceedings-similar to those asked by the trial court
here-are well within the scope of a proper Faretta
hearing. See, e.g., United States v. Davis,
269 F.3d 514, 519 n. 11 (5th Cir. 2001) (noting that the
Benchbook for U.S. District Court Judges includes questions
regarding the Federal Rules of Evidence and Federal Rules of
Criminal Procedure in the sample questionnaire for
the trial court did not find that Henderson could not waive
his right to counsel because of a lack of
understanding of procedural or evidentiary rules. Indeed, the
trial court never made any ruling on Henderson's
competency to waive his right to counsel, because petitioner
withdrew his request. Rather, these questions were designed
to ensure that Henderson would waive his right “with
eyes open, ” as required by Faretta.
Faretta, 422 U.S. at 835. And counsel's failure
to object to such questioning could not possibly be
considered so deficient as to be ineffective assistance of
counsel, particularly under the doubly deferential standards
set out by Strickland v. Washington, 466 U.S. 668
(1984), and 28 U.S.C. § 2254(d). See Harrington v.
Richter, 562 U.S. 86, 105 (2011).
also takes issue with the trial court's statement that
although the court would appoint standby counsel, said
counsel could not intervene or ask questions. Petitioner
states that the Supreme Court has allowed standby counsel
“to explain and enforce basic rules of courtroom
protocol” and “aid the accused if and when the
accused requests help, and to be available to represent the
accused in the event that termination of the defendant's
self-representation is necessary.” McKaskle v.
Wiggins, 465 U.S. 168, 176, 184 (1984) (citation
omitted). But the issue in McKaskle was whether
counsel had infringed on a defendant's Faretta
rights to self-representation though some involvement in the
courtroom, and there the Supreme Court noted that there is no
constitutional right to the sort of hybrid representation
that Henderson argues that trial court should have allowed
and apprised him of. See McKaskle, 465 U.S. at 183.
Since McKaskle, the Fifth Circuit has explicitly
held that “there is no constitutional right to hybrid
representation.” Myers v. Johnson, 76 F.3d
1330, 1335 (5th Cir. 1996); see also Randolph v.
Cain, 412 Fed.Appx. 654, 658 (5th Cir. 2010) (“Of
critical importance here, although defendant possesses the
right to counsel as well as the right to self-representation,
there is no constitutional right to have both
through a ‘hybrid representation' scheme.”
(emphasis in original)). And again, the failure to object to
the trial court's statement does not constitute
ineffective assistance of counsel here.
of the Rules Governing Section 2254 Proceedings provides that
“[t]he district court must issue or deny a certificate
of appealability when it enters a final order adverse to the
applicant.” Rules Governing Section 2254 Proceedings,
Rule 11(a). A court may issue a certificate of appealability
only if the petitioner makes “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. §
2253(c)(2); Rules Governing Section 2254 Proceedings, Rule
11(a) (noting that an issue must “satisfy the showing
required by 28 U.S.C. § 2253(c)(2)” for a
certificate to issue).
statutory language codified the judicial standard “for
determining what constitutes the requisite showing” for
a certificate of appealability. See Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). “Under the
controlling standard, a petitioner must ‘sho[w] that
reasonable jurists could debate whether (or, for that matter,
agree that) the petition should have been resolved in a
different manner or that the issues presented were
‘adequate to deserve encouragement to proceed
further.'” Id. (quoting Barefoot v.
Estelle, 463 U.S. 880, 893 n.4 (1983)).
reasons stated above, petitioner has not made a substantial
showing of the denial of a constitutional right; he raises no
issues reasonable jurists could debate or which deserve
further encouragement. Accordingly, the Court will not issue
a certificate of appealability.