Clarence Randolph, Jr. v. Burl Cain, Warden ( 2010 )

Case: 09-30196 Document: 00511328350 Page: 1 Date Filed: 12/21/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 21, 2010
No. 09-30196 Lyle W. Cayce
Clerk
CLARENCE RANDOLPH, JR.,
Petitioner - Appellant
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:08-CV-1982
Before BARKSDALE, DENNIS, and HAYNES, Circuit Judges.
PER CURIAM:*
Proceeding pro se, Clarence Randolph, Jr., Louisiana prisoner #480981,
challenges the denial of 28 U.S.C. § 2254 habeas relief, regarding his state-court
convictions for aggravated rape and aggravated incest involving his 13-year-old
step-daughter. Randolph has been granted a certificate of appealability (COA)
on two issues: whether, for trial, he knowingly and intelligently waived his right
to counsel, in the light of the trial court’s failure to conduct a hearing pursuant
to Faretta v. California, 422 U.S. 806 (1975) (holding criminal defendants have
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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constitutional right to self-representation, and when accused manages own
defense such that he invokes that right, he must knowingly and intelligently
forgo his right to counsel and be made aware of dangers of self-representation)
(the Faretta claim); and whether Randolph’s counsel on direct appeal rendered
ineffective assistance by failing to raise the Faretta claim (IAC claim).
AFFIRMED.
I.
Approximately a year before his trial in March 2004, Randolph filed a pro
se motion seeking “to enroll and participate at trial as co-counsel of record”,
citing Faretta. Randolph’s motion noted he was represented by court-appointed
counsel and maintained: “in order for [Randolph] to adequately and effectively
present his defense, he must be allowed to directly and actively participate in the
proceedings during trial as co-counsel of record”.
At a hearing on that motion on 14 April 2003, the trial court: confirmed
Randolph filed the motion; confirmed neither the State nor Randolph’s counsel
had any objection to his serving as “co-counsel”; and granted the motion. After
the court did so, however, the State cautioned the court: “It’s important, [it] may
be required that the court represent to the defendant the dangers of self-
representation”. The court replied: “Yes, but he’s also represented”.
On 3 November 2003, Randolph filed a pro se motion, expressing
dissatisfaction with appointed counsel and requesting appointment of new
counsel. The motion was granted.
Randolph’s counsel conducted the vast majority of the March 2004 trial,
except that Randolph cross-examined two of the State’s four witnesses: the
victim (step-daughter) and her mother. (He also objected to jury polling; that
objection was sustained.) Randolph was convicted for aggravated rape and
aggravated incest. That April, he was sentenced to life in prison, without parole,
for the former, and to a concurrent 20-year term of imprisonment for the latter.
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Through counsel, Randolph raised several issues on direct appeal, but they
did not include either the Faretta or, of course, IAC claim for which he has been
granted a COA. In May 2005, the state intermediate appellate court affirmed.
State v. Randolph, 903 So. 2d 23 (La. App. 1 Cir. 2005) (unpublished). Likewise,
in February 2006, the Louisiana Supreme Court denied Randolph’s application
for writ of certiorari, without opinion. See State v. Randolph, 924 So. 2d 166 (La.
2006).
In January 2007, Randolph filed, pro se, an application for post-conviction
relief in the state trial court. Randolph asserted: the trial court, in violation of
Faretta, failed to determine whether he knowingly waived his right to counsel
(as noted, the Faretta claim); and his counsel on direct appeal rendered
ineffective assistance by failing to raise the Faretta claim (as noted, the IAC
claim). Randolph’s application was denied that February, without written
reasons. See Randolph v. Cain, No. 327872/3 (22nd Dist. La. 2007).
That March, Randolph appealed to the Louisiana intermediate appellate
court. That April, the appeal was summarily denied, without opinion. See State
v. Randolph, 2007 KW 0411 (La. App. 1 Cir. 2007).
That May, Randolph filed a writ application with the Louisiana Supreme
Court. It was denied in March 2008, without opinion. See State ex rel. Randolph
v. State, 977 So. 2d 902, 903 (La. 2008).
Later that month, Randolph, pro se, applied for federal habeas relief,
pursuant to 28 U.S.C. § 2254. He raised numerous issues, including: the
Faretta and IAC claims. The application was referred to a magistrate judge for
report and recommendation. In January 2009, the magistrate judge
recommended, inter alia, that Randolph was not entitled to relief on any of his
claims.
For the Faretta claim, the magistrate judge recommended: it was not
necessary for the trial court to ensure Randolph knowingly and intelligently
waived counsel, because Randolph did not waive his right to counsel or
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unequivocally exercise his Sixth Amendment right to represent himself. The
magistrate judge recommended Randolph was seeking merely to act as “co-
counsel”, not lead-counsel. As such, the magistrate judge recommended: a
Faretta warning was not required; and, concomitantly, there was no
constitutional violation.
For the IAC claim, the magistrate judge recommended: “it [was] not
reasonably probable that [Randolph’s] appeal would have had a different
outcome if appellate counsel [for the direct appeal] had raised the [Faretta] claim
. . . .” The magistrate judge reiterated this recommendation was because
Randolph had no constitutional right to proceed as “co-counsel”.
On 3 February 2009, Randolph filed written objections to the report and
recommendation. Six days later, the district court adopted it and dismissed
Randolph’s habeas petition. See Randolph v. Cain, No. 08-1982, 2009 WL
324057, at *1 (E.D. La. 9 Feb. 2009).
With his notice of appeal, Randolph filed a request for a COA and to
proceed in forma pauperis. Among the issues for which a COA was requested
were the Faretta and IAC claims. The district court granted Randolph a COA
only for the Faretta claim.
Subsequently, Randolph requested a COA from our court on issues for
which he had unsuccessfully requested a COA in district court. On 7 January
2010, our court granted a COA only for the IAC claim.
II.
Accordingly, Randolph maintains: the district court violated his right to
counsel by granting his motion to act as “co-counsel” at trial, without first
warning him of the dangers of self-representation as required by Faretta (as
noted, the Faretta claim); and his counsel on direct appeal was ineffective for
failing to raise the Faretta claim (as noted, the IAC claim).
In reviewing this denial of federal habeas relief, the district court’s
findings of fact are reviewed for clear error; its conclusions of law, de novo. E.g.,
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Gregory v. Thaler, 601 F.3d 347, 352 (5th Cir. 2010). Under the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat.
1214, a federal court may not grant habeas relief to a state prisoner on a claim
that was adjudicated on the merits by the state court unless the state-court
decision was: (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States”; or (2) “was 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);
see, e.g., Pierce v. Thaler, 604 F.3d 197, 200 (5th Cir. 2010).
Because the determination of whether Randolph expressly and
unequivocally, or constructively, invoked his right to self-representation,
requiring Faretta safeguards, was solely dependent on the particular facts and
circumstances of the case, our review of that issue is to determine whether the
state court decision “was 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)(2); see United States v. Long, 597 F.3d 720, 723-24 (5th Cir. 2010) (citing
cases and analyzing various verbal exchanges between defendants and judges
in each case to determine if right to proceed pro se was invoked); United States
v. Cano, 519 F.3d 512, 516 (5th Cir. 2008); see also Stenson v. Lambert, 504 F.3d
873, 882-883 (9th Cir. 2007) (“We hold that the [state court’s] holding that
[defendant’s] request at trial [to proceed pro se] was ‘not unequiviocal,’ . . . was
not ‘based on an unreasonable determination of the facts.’” (citing 28 U.S.C. §
2254(d)(2)) (internal citation omitted)); United States v. Mackovich, 209 F.3d
1227, 1237 (10th Cir. 2000) (citing Hamilton v. Groose, 28 F.3d 859, 862 (8th Cir.
1994) for proposition that “the question of whether a defendant invoked his right
to self-representation in an unequivocal manner is a question of fact”.); Fields
v. Murray, 49 F.3d 1024, 1032 (4th Cir. 1995) (holding the question “whether a
defendant effectively invoked his right to self-representation” is “one of fact”)
(citing Cain v. Peters, 972 F.2d 748, 749 (7th Cir. 1992)). “Under AEDPA [, 28
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U.S.C. § 2254(e)(1)], a state court’s factual findings are presumed to be correct
unless the habeas petitioner rebuts the presumption through clear and
convincing evidence.” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir. 2006)
(internal quotation marks and citations omitted).
On the other hand, as discussed in part II. B., the IAC claim is a legal
issue and is, therefore, reviewed to determine whether the state-court decision
was: “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States”. 28
U.S.C. § 2254(d)(1); see Schaetzle v. Cockrell, 343 F.3d 440, 443-44 (5th Cir.
2003).
“Because a federal habeas court only reviews the reasonableness of the
state court’s ultimate decision, the AEDPA inquiry is not altered when, as in this
case, state habeas relief is denied without an opinion.” Schaetzle, 343 F.3d at
443; see also Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001). “For such
a situation, our court: (1) assumes the state court applied the proper [legal
standard]; and (2) then determines whether its decision was . . . an . . .
unreasonable application of that [standard].” Schaetzle, 343 F.3d at 443(internal quotation marks and citations omitted).
A.
A Faretta warning is required if defendant, either expressly or
constructively, unequivocally invokes his right to proceed pro se and waives his
right to counsel. See Cano, 519 F.3d at 516; see also Long, 597 F.3d at 724. In
that regard, a criminal defendant has the constitutional right to waive his right
to counsel and to present his own defense. Faretta, 422 U.S. at 817-22; Long,
597 F.3d at 723. The waiver of that right, of course, must be knowing and
intelligent, and defendant must clearly and unequivocally request self-
representation. Long, 597 F.3d at 723. Accordingly, once defendant
unequivocally invokes the right of self-representation, whether expressly or
constructively, the court must hold a Faretta hearing to ensure defendant’s
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request to proceed without counsel is knowing and voluntary. See Faretta, 422
U.S. at 835-36; Cano, 519 F.3d at 516.
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. See McKaskle v.
Wiggins, 465 U.S. 168, 182 (1984). And, as discussed, whether defendant
expressly or constructively asserts an unequivocal request for self-representation
is a factual determination. Long, 597 F.3d at 723-24; Cano, 519 F.3d at 516.
For the reasons that follow, it is obvious, under AEDPA, that the state-
court decision for the Faretta claim was not “based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding”. See 28 U.S.C. § 2254(d)(2). As discussed, the record reflects that
Randolph requested only to proceed at trial as “co-counsel”, not as lead counsel;
and he did not constructively invoke his right to proceed pro se.
“Requests that vacillate between self-representation and representation
by counsel are equivocal.” State v. Berry, 989 So. 2d 120, 128 (La. App. 5 Cir.
2008). Randolph gave no clear and unequivocal invocation of the right to self-
representation. Randolph’s pre-trial motion was not an unequivocal assertion
of the right to proceed pro se; instead, it was an express, unequivocal request to
participate as “co-counsel”. Nor, as discussed, does the record reflect he
constructively sought to proceed pro se. In short, Randolph had counsel at all
times; and, under AEDPA, as stated supra, the state-court decision rejecting his
Faretta claim was not “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)(2).
For example, in State v. Penson, a decision relied on heavily by Randolph,
a Louisiana intermediate appellate court held the trial court’s recognition of
defendant’s request to proceed as “co-counsel”, mixed with defendant’s extensive
participation in his defense, resulted in defendant’s waiver of his right to
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counsel. 630 So. 2d 274 (La. Ct. App. 1993). And, because Penson was not given
his Faretta warning after waiving his right to counsel, the case was remanded
for a new trial. Id. at 278.
Randolph’s reliance on Penson is unavailing. Pre-trial, Penson filed a pro
se motion to join as “co-counsel” because of conflicts with his attorney. Id. at
276. Subsequently, Penson filed two pro se motions, one of which was to remove
his attorney and have new counsel appointed. Id. At trial, Penson presented
part of the opening statement, conducted part of the cross-examination of two
State witnesses, moved for a “continuance”, and offered legal arguments
concerning the admission of evidence and witness sequestration. Id. Penson
also made arguments on post-trial motions in a hearing. Id.The Penson appellate court noted:
When a defendant has exercised his right to
self-representation, the court may appoint “standby
counsel” to aid the defendant and to be available to
represent the defendant in the event the right of
self-representation is terminated. See Faretta, 422 U.S.
at 834 n. 46 . . . . When the trial court allows this kind
of arrangement, the defendant acts as his only legal
representative, and counsel merely advises the
defendant. When an attorney is appointed as an
advisor under these circumstances, the accused must
knowingly abandon his right to be represented by
counsel.
Id. at 277 (internal citation omitted) (emphasis added). Although Penson’s
counsel was heavily involved, the court found it “apparent that the attorney had
his own agenda and that defense counsel and defendant did not always agree on
the presentation of the defense”. Id. at 278. In fact, Penson even asserted his
attorney, the judge, and assistant district attorney were in collaboration to “sell
him out”. Id. at 276. The court held: “under these circumstances”, the trial
court was required to warn defendant of the dangers of self-representation. Id.
at 278. The court found: “Although defendant’s request to serve as ‘co-counsel’
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was not an unequivocal demand for self-representation, . . . he performed many
of the functions that an attorney traditionally performs”. Id. at 278. (emphasis
added). The court further held: “Considering the facts of this case, we find that
defendant asserted a right to self-representation”. Id. at 278 (emphasis added).
Faretta requires the claimed hearing “[w]hen an accused manages his own
defense”. 422 U.S. at 835 (emphasis added); see also Cano, 519 F.3d at 516(holding defendant may waive right to counsel through subsequent conduct).
Although Penson was involved in his trial to the extent of rendering his counsel
“stand-by” and managing his own defense, Randolph’s involvement in his trial
did, as discussed, not rise to such a level—far from it. Randolph’s actions during
trial were limited, and there is no indication counsel’s performance was not in
accord with his wishes.
As another example of the factual inquiry made necessary by Faretta, our
court held defendant invoked his self-representation right, triggering the need
for a Faretta warning, when, in the middle of trial, defendant expressed
dissatisfaction with his counsel’s performance, and was permitted to ask
witnesses questions his counsel refused to ask. See United States v. Davis, 269
F.3d 514, 519-20 (5th Cir. 2001). In Davis, defendant questioned 14 of the 19
witnesses examined by the defense, made a proffer of potential witness
testimony with the assistance of counsel, and also made closing argument. Id.
at 517. Defense counsel was excused by the court from making or responding to
objections, although he objected to one witness, responded to the offer of
Government evidence, moved for an acquittal, and also made a closing
argument. Id. Our court held, under those circumstances, that the
representation sought by defendant, even if it could have been characterized as
“hybrid”, did rise to the level of self-representation, mandating a waiver of
defendant’s Sixth Amendment right to counsel satisfying the Faretta safeguards.
Id. at 520 (the court implied Davis’ representation was more akin to “standby
assistance of counsel” than hybrid representation).
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As discussed, unlike Davis, where defense counsel largely stood by as an
advisor while defendant conducted the trial, Randolph’s counsel conducted his
entire trial except for the cross-examination of two Government witnesses.
Randolph’s counsel determined the controlling trial strategy, conducted jury voir
dire, made all technical and legal arguments, conducted all bench conferences,
made objections throughout trial, and presented closing argument. Randolph
did not request his counsel be relieved during trial, he never expressed
dissatisfaction with the representation provided by his counsel at trial, and he
never took over the management of his defense. There is no indication of a
conflict between Randolph and his counsel at trial or a disagreement with
defense counsel’s representation. Randolph’s counsel was not “stand-by” as was
counsel in Davis.
In sum, the record does not support finding Randolph “manage[d] his own
defense”, thereby invoking his right to self-representation. Therefore, again, the
state-court decision rejecting the Faretta claim was not “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)(2).
B.
IAC claims are mixed questions of law and fact and “should be reviewed
under the [above-discussed] ‘contrary to’ and ‘unreasonable application’ prong
of 28 U.S.C. § 2254(d)[(1)]”. Moore v. Cockrell, 313 F.3d 880, 881 (5th Cir. 2002).
Accordingly, Randolph’s IAC claim is analyzed to determine whether the state-
court decision was: “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States”. 28 U.S.C. § 2254(d)(1).
“[T]he applicable ‘clearly established Federal law as determined by the
Supreme Court of the United States’—against which to measure the state court’s
decision—is [of course, stated] in Strickland v. Washington, 466 U.S. 668 (1984)
(interpreting Sixth Amendment right to counsel)”. Schaetzle, 343 F.3d 443-44
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(citations omitted). “To succeed in state habeas court on his IAC claim, pursuant
to the ‘clearly established Federal law’ found in Strickland, [Randolph] was
required to show . . . : (1) appellate counsel’s performance was deficient; and (2)
this performance resulted in prejudice.” Id. at 444; see Strickland, 466 U.S. at
687. Again, we determine only whether the state-court decision rejecting the
IAC claim was “unreasonable” under the above-stated AEDPA standard. See
Schaetzle, 343 F.3d at 444 (the test “is not whether [defendant] made that [IAC]
showing . . . [but] whether the state court’s decision—that [defendant] did not
make the Strickland-showing—was contrary to, or an unreasonable application
of [Strickland]”) (emphasis in original).
In state court, to show appellate counsel’s performance was deficient,
Randolph was required to show: counsel’s failure to raise the Faretta claim was
objectively unreasonable; and, if counsel had raised it, “there was a reasonable
probability that, but for counsel’s deficient performance, [Randolph] would have
prevailed on direct appeal”. Id. at 445, 448 (emphasis in original). Needless to
say, Randolph’s IAC claim fails under our limited AEDPA standard of review,
because his Faretta claim fails under that standard. Counsel’s performance on
direct appeal was not ruled ineffective by the state court. For the above-
discussed reasons for why that decision was not found wanting under AEDPA
for the Faretta claim, it is not wanting under AEDPA for this IAC claim. In sum,
for the IAC claim, the state-court decision was not “contrary to, or . . . an
unreasonable application of, clearly established federal law, as determined by
the Supreme Court of the United States”. 28 U.S.C. § 2254(d)(1).
III.
For the foregoing reasons, the denial of habeas relief is AFFIRMED.
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DENNIS, Circuit Judge, concurring in the judgment.
I write separately in order to clarify a point regarding the proper
analysis of the type of claim that is at issue in this appeal. In Faretta v.
California, 422 U.S. 806 (1975), the Supreme Court established that a trial
court has two specific obligations toward a defendant who desires to conduct
his own defense. First, if a defendant “clearly and unequivocally declare[s] to
the trial court that he want[s] to represent himself and [does] not want
counsel,” then the court is obligated to permit him to exercise “his
constitutional right to conduct his own defense.” Id. at 835-36. Second,
before a trial court grants a defendant’s request to represent himself, it must
ensure that the 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.’” Id. at 835 (quoting Adams v.
United States ex rel. McCann, 317 U.S. 269, 279 (1942)).
Thus, a court can violate the requirements of Faretta in either of two
ways: by denying a defendant’s clear, unequivocal, timely request to represent
himself, or by granting a defendant’s request to represent himself but failing
to ensure that he understands “the dangers and disadvantages of self-
representation,” id. These are two different errors that correspond to two
distinct claims that can be made on appeal or on habeas. Compare United
States v. Long, 297 F.3d 720, 722 (5th Cir. 2010) (“Long contends that the
district court wrongfully denied him his right to represent himself.”), with
United States v. Davis, 269 F.3d 514, 516 (5th Cir. 2001) (“Davis contends
that his Sixth Amendment right to counsel was violated because the district
court did not sufficiently warn Davis of the perils of self-representation, and
therefore Davis did not make a knowing and intelligent waiver of his right to
counsel.”).
This case involves the second type of Faretta claim: Randolph argues
that the trial court erred by not making sure he understood the dangers of
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self-representation before allowing him to participate in his own defense by
cross-examining the victim and her mother. A defendant’s participation in
his own defense, even if assisted by a lawyer, can rise to a level that “entail[s]
a waiver of his Sixth Amendment right to counsel that require[s] the
safeguards specified in Faretta.” Davis, 269 F.3d at 520; see also 3 Wayne R.
LaFave et al., Criminal Procedure § 11.5(g), at 766-67 (3d ed. 2007) (“[S]ince
hybrid representation is in part pro se representation, allowing it without a
proper Faretta inquiry can create constitutional difficulties.”). Therefore, the
dispositive question on the underlying merits of Randolph’s Faretta claim is
whether his participation in his own defense amounted to self-representation
requiring the trial court to warn him “of the dangers and disadvantages of
self-representation.” Faretta, 422 U.S. at 835.
In my view, the majority opinion tends to confuse the issue by engaging
in a lengthy analysis of an irrelevant question: whether Randolph made a
“clear and unequivocal assertion of the right to self-representation.” Maj. Op.
6-10. That question would be important if this case involved a claim that a
trial court erroneously denied a defendant’s request to engage in self-
representation. The majority opinion relies on several cases involving claims
of that type, including Long, 297 F.3 Id 720; United States v. Cano, 519 F.3d
512 (5th Cir. 2008); Stenson v. Lambert, 504 F.3d 873 (9th Cir. 2007); United
States v. Mackovich, 209 F.3d 1227 (10th Cir. 2000); Fields v. Murray, 49 F.3d
1024 (4th Cir. 1995) (en banc); Hamilton v. Groose, 28 F.3d 859 (8th Cir.
1994); and Cain v. Peters, 972 F.2d 748 (7th Cir. 1992). But the instant case
does not involve such a claim. Thus, I think the majority opinion focuses on
the wrong question. When a trial court grants a defendant’s request to
engage in self-representation, Faretta requires the court to ensure that he is
“aware of the dangers and disadvantages of self-representation.” 422 U.S. at
835. The degree of clarity of the defendant’s request is irrelevant once the
request has been granted.
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Despite this partial disagreement with the majority opinion’s analysis, I
concur in the judgment for two reasons. First, as to Randolph’s claim that the
trial court allowed him to engage in self-representation without conducting a
Faretta hearing, there is no “clearly established Federal law, as determined
by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), regarding
whether a Faretta warning is required before a trial court allows a defendant
to partially conduct his own defense in the particular manner that Randolph
did. Therefore, we cannot grant habeas relief on this claim.
Second, as to Randolph’s claim that he received ineffective assistance
when his appellate counsel failed to raise the Faretta issue on direct appeal,
we must apply a “highly deferential” level of scrutiny to counsel’s
performance. Strickland v. Washington, 466 U.S. 668, 689 (1984). To obtain
habeas relief, Randolph had to demonstrate to the Louisiana courts that his
counsel on direct appeal was “objectively unreasonable in failing to present
the [Faretta] issue.” Schaetzle v. Cockrell, 343 F.3d 440, 445 (5th Cir. 2003).
On federal habeas, the bar is even higher: “the test is whether the state
[habeas] court’s decision — that [Randolph] did not make the
Strickland-showing — was contrary to, or an unreasonable application of, the
standards, provided by the clearly established federal law (Strickland), for
succeeding on his [ineffective assistance] claim.” Id. at 444; see 28 U.S.C.
§ 2254(d)(1).
Randolph’s ineffective assistance claim is not compelling enough to
clear this bar. “Counsel need not raise every nonfrivolous ground of appeal.”
Id. at 445. “Often, factual differences will make authority easily
distinguishable, whether persuasively or not. In such cases, it is not
necessarily providing ineffective assistance of counsel to fail to construct an
argument that may or may not succeed.” Id. at 445 (quoting United States v.
Williamson, 183 F.3d 458, 463 (5th Cir. 1999)). As the majority opinion
explains, this case is at least arguably factually distinguishable from the
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cases on which Randolph relies, including United States v. Davis, 269 F.3d
514 (5th Cir. 2001), and State v. Penson, 630 So. 2d 274 (La. Ct. App. 1993).
Therefore, it is doubtful whether Randolph’s appellate counsel’s failure to
raise the Faretta issue amounted to deficient performance under Strickland,
and so the state habeas courts’ rejection of Randolph’s ineffective assistance
claim was not an objectively unreasonable application of Strickland.
Accordingly, I agree with the majority that Randolph is not entitled to
habeas relief.
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