Petition — McKaskle v. Wiggins

82-1135

NO. 81

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

CARL EDWIN WIGGINS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

GILBERT J. PENA

Assistant Attorney General

Chief, Enforcement Division

LESLIE A. BENITEZ

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

QUESTIONS PRESENTED

WHERE A DEFENDANT INVOKES HIS FARETTA

V. CALIFORNIA RIGHT OF SELF REPRESENTA-

TION, DOES THE LIMITED PARTICIPATION OF

STANDBY COUNSEL ABROGATE HIS EXERCISE

OF THE RIGHT, ENTITLING HIM TO FEDERAL

HABEAS CORPUS RELIEF?

HAS THE FIFTH CIRCUIT EXTENDED FARETTA

V. CALIFORNIA BY PRESUMING PREJUDICE

WHERE STANDBY COUNSEL ASSISTS A PRO SE

DEFENDANT, EVEN THOUGH THE DEFENDANT

HAD A GENUINE OPPORTUNITY TO REPRE-

SENT HIMSELF?

-il-

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF AUTHORITIES iii

OPINIONS BELOW l

JURISDICTION 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED 2

STATEMENT OF THE CASE 2

A. Course of Proceedings and Disposition Below 2

B. Statement of the Facts 4

REASONS FOR GRANTING THE WRIT 6

I. There are Special and Important Reasons for

Granting the Writ 6

Il.

Ill.

Where a Defendant Invokes his Faretta v. California

Right of Self Representation, the Limited Participation

of Standby Counsel does not Abrogate his exercise of

the Right Entitling him to Federal Habeas Corpus

Relief . “poet

The Fifth Circuit has Extended Faretta v.

California by Establishing a Presumption of Prejudice

Where Standby Counsel Assists a Pro Se Defendant,

even though the Defendant had a Genuine Opportunity

to Represent himself .

CONCLUSION

11

15

-iii-

TABLE OF AUTHORITIES

Cases

Brown v. Wainwright, 665 F.2d 607

(5th Cir. 1982)

Chapman v. United States, 553 F.2d 886

(5th Cir. 1977)

Cuyler v. Suli:van, 446 U.S. 335,

(1980)

Faretta v. California, 422 U.S. 806,

(1975)

Jackson v. Denno, 378 U.S. 368,

(1964)

United States v. Frady, __U.S._

102 S.Ct. 1584 (1982)

Wiggins v. State, 520 S.W.2d 780

(Tex.Crim.App. 1975)

Page

13

9,11

passim

10

1]

NO. 81___

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1982

W. J. ESTELLE, JR., DIRECTOR,

TEXAS DEPARTMENT OF CORRECTIONS,

Petitioner

V.

CARL EDWIN WIGGINS,

Respondent

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

TO THE HONORABLE JUSTICES OF THE

SUPREME COURT:

The Petitioner respectfully prays that a writ of cer-

tiorari issue to review the judgement of the United

States Court of Appeals for the Fifth Circuit, entered in

this case on July 26, 1982, rehearing en banc denied on

November 8, 1982.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 581

F.2d 266, reh. denied, 591 F.2d 213 (5th Cir. 1982). (Ap-

pendices A and B). The report and recommendation of

the United States Magistrate, adopted by the district

court, appears as Appendix C.

-2-

JURISDICTION

The judgement of the United States Court of Appeals

for the Fifth Circuit was entered on July 26, 1982. A

timely filed petition for rehearing en banc was denied on

November 8, 1982. This petition for certiorari is filed

within sixty days after final judgment in this case. This

Court’s jurisdiction is invoked under 28 U.S.C. § 1254

(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, art. VI, in pertinent part:

In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impar-

tial jury of the State and district wherein the crime

shall have been committed. . . and to have the

Assistance of Counsel for his defense.

United States Constitution, art. XIV, in pertinent part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of

the United States; nor shall any State deprive any

person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its

jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

A. COURSE OF PROCEEDINGS AND

DISPOSITION BELOW

Petitioner has custody of Respondent pursuant to a

judgement and sentence of the 187th Judicial District

Court of Bexar County, Texas. In January, 1973,

Respondent originally was tried and found guilty of the

offense of robbery, and his punishment was assessed at

-3-

life imprisonment. On March 21, 1973, however, this

conviction was set aside and new trial was ordered due

to a defective indictment. Respondent wes reindicted

for the robbery and trial in this cause began on June 4,

1973. At trial, Respondent asserted his desire to waive

the assistance of counsel and to conduct his own

defense. The trial court granted him the right to do so,

but kept two appointed attorneys as standby

counsel. On June 8, 1973, Respondent was found guilty

of the offense. Punishment again was assessed at life

imprisonment.

Respondent appealed to the Texas Court of Criminal

Appeals and expressed his desire to waive appellate

counsel and represent himself on appeal. Several

months later, however, he requested the appointment of

counsel. Although counsel was then appointed and

timely filed an appellate brief, Respondent also filed a

one hundred fifty page appellate brief. The Texas Court

of Criminal Appeals affirmed the conviction on March

26, 1975, in Wiggins v. State, 520 S.W.2d 780

(Tex.Crim.App. 1975).

Respondent then filed in the state courts five applica-

tions for habeas corpus relief and hundreds of pages of

various pleadings in the state courts. Respondent also

has filed several prior applications for federal habeas

corpus relief. A petition for writ of certiorari was denied

by this Court on November 13, 1978.

In the instant cause Respondent applied to the United

States district court again seeking federal habeas cor-

pus relief in Wiggins v. Estelle, No. SA-79-CA-128. On

August 26, 1980, the district court entered an order

adopting the findings and recommendations of the

“Magistrate and denying habeas corpus relief. The opi-

nion of a panel of the United States Court of Appeals for

the Fifth Circuit, reversing the decision of the district

court and ordering that habeas relief be granted, was

handed down on July 26, 1982; rehearing en banc was

-4- bd

denied on November 8, 1982, with five judges dissen-

ting. Wiggins v. Estelle, 581 F.2d 266 (5th Cir. 1982),

reh denied 591 F.2d 213 (5th Cir. 1982).

B. STATEMENT OF THE FACTS

On April 16, 1973, Respondent filed a request for ap-

pointed counsel prior to his second trial, specifically

stating that he wished to rescind his earlier waiver of

counsel. On April 17, 1973, the trial court entered an

order appointing counsel. Thereafter, Respondent con-

tinued to act in his own behalf. He filed a motion for a

transcript of his prior trial, a motion to suppress the

identification of the complaining witness, motions for

witness fees and subpoenas, requests for a speedy trial

and a change of venue, and a writ of habeas corpus. On

May 26, 1973, however, he filed an additional request for

counsel. On May 31, 1973, the trial court appointed ad-

ditional counsel, R. Norvell Graham, to assist Respon-

dent. Nevertheless, Respondent continued to act in his

own behalf, filing a motion for special relief, a motion in

limine, a bill of exceptions and another special plea, and

a motion for a jury shuffle.

Pre-trial hearings began on June 4, 1973. Respon-

dent, against the advice of one of the attorneys, an-

nounced ready for trial. Conflict arose between Respon-

dent and the attorneys on this matter, and the trial

court stated for the record that Respondent was exercis-

ing his right to represent himself and that the attorneys

were appointed as standby counsel to consult with him

when he so desired or when the trial court directed him

to do so. Thereafter, the court began consideration of

Respondent's pro se motions. During a lengthy discus-

sion concerning discovery, counsel voiced a few requests

for particular discovery, and argued in support of them,

to which action Respondent made no objection. At one

point, Respondent halted the discussion and asserted

his desire to proceed pro se. He was instructed that he

és.

might be required to consult with counsel on

occasion. Additional motions were then presented by

Respondent, and he personally conducted the examina-

tion of a witness concerning one of the motions. Four

times during the examination Graham assisted Respon-

dent; no objection was made at any time to Graham's ac-

tions, and, at least once, Respondent specifically approv-

ed counsel's actions. Thereafter, Respondent argued ad-

ditional motions.

Pre-trial hearings continued on the morning of June 5,

1973. The trial court refused to dismiss the standby at-

torneys and refused to enter a specific order restraining

the actions of counsel; rather, the court determined to

take up individually any problems which arose between

Respondent and counsel. Additional pro se motions

were then made and argued by Respondent.

The first jury panel was instructed that Respondent

was exercising his right of self-representation, and that

standby counsel was appointed to assist him. At one

point in the proceedings, the trial court erroneously in-

formed the panel that Petitioner was being tried as a

repeat offender; counsel objected to this, and moved for

a mistrial, and Respondent specifically agreed. The

panel subsequently was quashed. The second panel was

instructed as to Respondent's election to represent

himself, and Respondent made his opening statement to

the panel. Thereafter, Respondent conducted the voir

dire examination for the defense entirely without

assistance or interference from counsel. Thereafter, the

jury was sworn and testimony began. Thus, the jury

which tried Respondent was examined and selected by

Respondent alone.

During all trial proceedings, Respondent examined

and cross-examined witnesses, made objections to

evidence and arguments, chose which defensive theories

and witnesses he would present before the court, and

argued his case to the jury at both states of the bifur-

4-

cated trial. During portions of the trial, Respondent ac-

cepted the assistance and aid of his standby counsel;

during other portions he totally rejected any action

taken on his behalf. While Respondent now complains

of the actions of standby counsel, he more often than not

approved of counsel's actions at trial. At various times

during the trial, where counsel assisted in making objec-

tions or arguments, this actions provoked no complaint

or objection by Respondent. Moreover, on various occa-

sions, Respondent specifically adopted counsel's objec-

tions. During other portions of the trial, both Respon-

dent and counsel made objections and argued the same

matters, cross-examined the witnesses, and argued to

the jury.

Several times during the trial, a conflict arose between

Respondent and standby counsel as to matters involv-

ing trial strategy. Each time, the trial court recognized

Respondent's right to make the necessary decisions as

to the conduct of the trial, and sustained Petitioner's

position. At various other times, when counsel in-

dicated that he wanted to interject matters into the pro-

ceedings, the trial court specifically inquired as to

whether counsel had Petitioner's permission to do so.

REASONS FOR GRANTING THE WRIT

I.

THERE ARE SPECIAL AND IMPORTANT

REASONS FOR GRANTING THE WRIT.

The Court of Appeals for the Fifth Circuit has decided

an important question of federal law which has not

been,but should be, settled by this Court. The issue

presented by this case is one of first impression, ap-

parently in any jurisdiction, and concerns the question

of whether a criminal defendant's rights under Faretta

v. California, 422 U.S. 806 (1975) are violated when

standby counsel intermittently offers his assistance dur-

ing the trial. The court below held that such assistance

Je

wholly abrogated the defendant's exercise of his right of

self-representation and that federal habeas corpus relief

was mandated by the Sixth Amendment. As was stated

by the judges dissenting to the denial of rehearing en

banc, the rule that standby counsel is ‘to be seen and

not heard” and the presumption of prejudice established

where standby counsel offers assistance, ‘defies the

rough-and-tumble realities of a fast-moving criminal

trial and places judges in an impractical, inflexible

strait-jacket.’’ Since this decision represents an unwar-

ranted extension of the principle established by this

Court in Faretta, this Court should grant the writ to

review the lower court’s decision.

II,

WHERE A DEFENDANT INVOKES HIS FARETTA

V. CALIFORNIA RIGHT OF _— SELF:

REPRESENTATION, THE LIMITED PARTICIPA-

TION OF STANDBY COUNSEL DOES NOT

ABROGATE HIS EXERCISE OF THE RIGHT EN:

TITLING HIM TO FEDERAL HABEAS CORPUS

RELIEF

This case presents questions of first impression,

previously addressed neither in the Fifth Circuit nor, ap-

parently, in any other. In Faretta v. California, 422 U.S.

806, (1975), this Court recognized the constitutional

right of an accused to dispense with the assistance of

counsel and conduct his own defense, since the right to

defend is personal and since the accused ultimately

must bear the consequences of a conviction. The

Respondent in the instant case, tried in 1973, requested

and received his right of self-representation. Standby

counsel, however, participated to a limited extent,

sometimes at Respondent's request, sometimes with his

acquiescence and sometimes objectionably to him. The

record as a whole reflects, however, that Respondent

acted in the capacity of his own counsel, controlling,

managing and presenting his defense before the

jury. Most discussions as to strategy between Respon-

B.

dent and his standby counsel occurred out of the jury's

presence. Each time there was any conflict between

Respondent and standby counsel, the trial court

recognized Respondent's right to make the necessary

decisions as to the conduct of the trial, and sustained

Respondent's position.

Thus, the record as a whole conclusively demonstrates

that Respondent acted as his own counsel and actually

controlled the conduct of the proceedings at trial. His

personal decisions in proceeding to trial, examining and

selecting the jury panel, making an opening statement,

cross-examining the State's witnesses, selecting his

defensive theory and deciding which witnesses to pre-

sent, examining his own witnesses, making objections to

evidence and arguing points of law to the court, and

arguing his case to the jury, clearly show that he manag:

ed and controlled his own defense within the meaning of

Faretta.

The essence of the right protected in Faretta is the

control over tactical decisions and defensive strategy,

and the opportunity to participate personally in the trial

of the case before the finders of facts. This Respondent

clearly did. The record supports findings that Respon-

dent, in exercising virtually exclusive management over

the trial on the merits, was allowed the right to repre-

sent himself.

Nevertheless, the panel opinion held:

. . the rule that we establish today is that court-

appointed standby counsel is ‘to be seen, but not

heard”’

681 F.2d at 273, and found that the limited participation

of counsel completely abrogated Respondent's exercise

of his right of self-representation.

-9-

First, the standard of review should be not whether

standby counsel interjected himself into the trial pro-

ceedings in any way, but rather should focus on whether

the pro se defendant was afforded a genuine opportunity

to conduct his defense. Petitioner urges that Chapman

vu. United States, 553 F.2d 886 (5th Cir. 1977) sets out

the appropriate standard of review; i.e., whether a pro se

defendant has been afforded a genuine opportunity to

conduct his defense. While the lower court’s opinion

noted this language in Chapman, nowhere did it discuss

whether Respondent had such a ‘‘genuine opportunity,’

or the applicability of this suggested standard of

review. The test adopted in that opinion, that any inter-

jection of standby counsel constitutes federal constitu-

tional error, should be rejected. '

In addition, the test adopted by the lower court

establishes a rule which would totally bind the hands of

a trial judge confronted with a defendant exercising his

Faretta right. Under this test, standby counsel would

be absolutely prohibited from speaking up in the pro se

defendant's behalf, no matter what the circumstances,

unless the defendant requested him to do so.

This rigid and unbending rule would not serve the in-

terests of justice. In Cuyler v. Sullivan, 446 U.S. 335,

(1980), this Court iterated that:

. .a state criminal trial, a proceeding initiated and

conducted by the State itself, is an action of the

State within the meaning of the Fourteenth Amend-

ment (citations omitted) . . .

1. The opinion correctly pointed out that the application of this

rigid test could result in defense counsel ‘‘sandbagging’’ the

prosecution, 681 F.2d at 274.

*10-

446 U.S. at 343. This Court continued, that when the

state obtains a criminal conviction through a trial in

which procedural and substantive safeguards are

denied, it is the state that unconstitutionally deprives

the defendant ot isis Uberty, since the ‘'[s]tate’s conduct

of a criminal trial itself implicates the state in the defen-

dant’s conviction.’ 446 U.S, at 344-45. Thus, the state,

too, has a strong interest in obtaining lawful criminal

convictions.

To require the trial court and standby counsel to re-

main mute thoughout the proceedings, no matter what

transpires, which is the ultimate result dictated by the

lower court's opinion, may be detrimental to the in-

terests of the defendant and the state in ensuring fun-

damental fairness in criminal proceedings.’ While the

state's interest certainly may not supersede a defen-

dant’s interest in exclusive management of his trial,

that interest at least should be considered in determin-

ing whether a rigid test for constitutional error should

be established, or whether the proceedings should be

reviewed on a case by case basis.

2. Moreover, the lower court strongly implied -'at the trial court

should have ordered standby counsel to rernain mute, rather

than determining to take up problems on an individual basis.

3. E.g.: Under the test established by the panel opinion, if stand-

by counsel heard evidence that the pro se defendant's confession

might have been involuntary and brought that to the attention

of the trial court, which then conducted a Jackson v. Denny, 378

U.S. 368 (1964) hearing and suppressed the confession, this ac-

tion of counsel would constitute error of constitutional dimen-

sion, Further, pursuant to the standard adopted in the panel

opinion, it would constitute harmful constitutional error, entitl-

ing the defendant to federal habeas relief, since the request was

at odds with the defendant's wishes and certainly contravened

the interests of the defendant as set out in the lower court's opi-

nion,

*)]-

Petitioner urges this Court to overrule this rigid test

for constitutional error, i.e, whether standby counsel

has been heard as well as seen, and to establish a stan-

dard of review which inquires into the pro se defendant's

genuine opportunity to manage, control and conduct his

defense at trial.

ITT,

THE FIFTH CIRCUIT HAS EXTENDED FARETTA

V. CALIFORNIA BY ESTABLISHING A PRESUMP.:

TION OF PREJUDICE WHERE STANDBY

COUNSEL ASSISTS A PRO SE DEFENDANT,

EVEN THOUGH THE DEFENDANT HAD A GE:

NUINE OPPORTUNITY TO REPRESENT

HIMSELF.

The lower court's rigid review of standby counsel's

conduct and the presumption of prejudice established

are unwarranted, As noted by the opinion:

[t]he Chapman decision did leave room, however, for

a finding of harmless error if the defendant was ‘‘af-

forded a genuine opportunity to help conduct his

defense.”’ 553 F.2d at 891 n.9.

681 F.2d at 274, n.26. The Court subsequently,

however, found that speculation as to actual harm suf-

fered by the Respondent through standby counsel's con-

duct was unnecessary, as it found that a presumption of

prejudice would be applied wherever a standby attorney

is ‘heard as well as seen.’ Petitioner urges that a

presumption of prejudice in these situations is unwar-

ranted. See e.g., United States v. Frady, _U.S.___.,

102, S.Ct. 1584 (1982),

In addition, the lower court noted that while:

[iJnterjections made in the presence of the jury are

inherently prejudicial, and are therefore subject to

strict scrutiny, statements made outside their

-12-

presence are not to be discounted. Conceivably, a

defendant could become so frustrated or flustered

by standby counsel's interference as to be unable to

regain his composure by the time the jury returned,

681 F.2d at 274, n. 27.

There is no basis for assuming that any comment

made by standby counsel in the presence of the jury is

inherently prejudicial to a defendant's exercise of his

right of self-representation, Neither is this presumption

mandated by Faretta; rather, it represents an unwar-

ranted extension of Faretta, and grants to a pro se defen-

dant the constitutional right to be free of any utterance

by his standby counsel, with a presumption of harm if he

is not. Surely this broad construction of Faretta was

not intended by this Court. Further, the lower court's

findings that discussions with or statements by standby

counsel out of the presence of the jury ‘‘are not to be

disregarded’’ because the defendant may become

‘frustrated or flustered,’’ effectively tie the hands of

both the trial court and counsel, for fear of later claims

by a defendant that discussions of law or strategy

“‘upset’’ him.

In addition, the lower court's opinion appears internal-

ly inconsistent, which could result in much confusion to

bench and bar. The opinion notes:

. in the interest of justice, the court or standby

counsel may wish to draw the defendant's attention

to some legal aspect of which he may be painfully

unaware, In such instances the court, either on its

own or after being asked by standby counsel, may

request that the accused confer with counsel . . .

681 F.2d at 273, n.24. Yet in its discuvsion of the

presumption of prejudice arising when standby counsel

speaks, the lower court found that these discussions

“are not to be discounted”’ in determining prejudice to

-13-

the defendant. Thus, if standby counsel, perceiving

some grave danger to the defendant's case, requests

that the trial court retire the jury so that the matter can

be explained to the defendant, standby counsel commits

constitutional error. If the jury is removed and the legal

matter is brought to the defendant’s attention, it is

quite conceivable that he later could claim that this

diversion frustrated or flustered him, or that the mere

act of counsel in requesting that the jury be removed

was sufficient to prejudice him before the jury or that it

had a ‘‘negative impact’’ upon his self-

representatjon. Thus, how the trial court and standby

counsel are to walk this fine line is very unclear indeed,

given the lower court's rigid test for constitutional error

and its presumption of prejudice. Petitioner urges this

Court, instead, to adopt the ‘‘genuine opportunity” in-

quiry as the standard of review and test for prejudice.

In addition, the holding of the panel is inconsistent

with other lower court decisions construing Faretta. In

Brown v, Wainwright, 655 F.2d 607 (5th Cir. 1982)(en

banc), the defendant first invoked his Faretta right;

however, during the course of trial proceedings, his

subsequent conduct and behavior were found to con-

stitute a waiver of his right. The lower court's treat-

ment of Respondent's requests for standby counsel's

assistance from time to time and his acquiescence in

counsel's assistance on occasions is inconsistent with

the notion that a pro se defendant may, by his conduct,

waive self-representation. While clearly Respondent in

the instant case never waived his Faretta right entirely,

the record reflects that from time to time he sought out

counsel's affirmative participation and then acquiesced

in his services, which constituted a waiver during those

moments of claims of ‘interference’ by standby

counsel.

The record reflects that Respondent more often than

not approved of counsel's limited assistance at trial. On

various occasions, Respondent adopted counsel's objec-

-14-

tions. Other times, Respondent acquiesced in counsel's

assistance. During some portions of the trial both

Respondent and counsel argued, at Respondent's re-

quest. If any conflict in trial strategy arose between the

two, the trial court, after ascertaining Respondent's

wishes, always sustained Repsondent's position. Other

times, when counsel indicated that he wished to make

some point, the trial court specifically inquired whether

counsel had Respondent's permission to do so. Finally,

most instances when Respondent and counsel disagreed

as to strategy occurred entirely out of the presence of

the jury. Each time Respondent's position was sustain-

ed by the trial court.

The lower court, however, wholly discounts

Respondent's requests for counsel to assist him and his

frequent acquiescence in and approval of counsel's par-

ticipation, in finding that counsel's assistance was

harmful constitutional error. Further, the panel fails to

point out that Respondent's strategic decisions were

always sustained, and the majority of the conflict bet-

ween the two occurred out of the presence of the

jury. Moreover, the panel admittedly engages in

speculation regarding harrn to Respondent. Finally, the

panel states:

Once the right of self-representation has been

asserted there will be no question of acquiescence

unless counsel's participation has been overtly en-

couraged by the defendant.

681 F.2d at 275 (emphasis added). The opinion,

however, ignores the fact that portions of counsel's

assistance were overtly encouraged _ by

Respondent. Respondent’s conduct in requesting

counsel's assistance and adopting his legal theories con-

stitutes a waiver of objection as to that extent of

counsel's participation.

-]5-

Because the record reflects Respondent alone made

the decision to proceed to trial, conducted the jury voir

dire, selected the jurors, examined and cross-examined

witnesses, made tactical and strategic decisions, chose

and presented his defensive theories, made objections to

evidence and argued in support of his position, made ob-

jections to the court's charge and submitted requested

charges, and argued his case to the jury at both phases

of the trial, the lower court’s holding that the limited

assistance of standby counsel constituted harmful con-

stitutional error entitling Respondent to federal habeas

relief, should not stand. This Court should grant cer-

tiorari to reject the Fifth Circuit’s adoption of a

presumption of prejudice where standby counsel in any

way assists a pro se defendant, who had a genuine op-

portunity to conduct his own defense in accordance with

Faretta.

CONCLUSION

For these reason, Petitioner prays that the petition for

certiorari to the United States Court of Appeals for the

Fifth Circuit issue.

Respectfully submitted,

MARK WHITE

Attorney General of Texas

JOHN W. FAINTER, JR.

First Assistant

Attorney General

RICHARD E. GRAY, III

Executive Assistant

Attorney General

GILBERT J. PENA

Assistant Attorney General

Chief, Enforcement Division

-16-

LESLIE A. BENITEZ

Assistant Attorney General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 475-3281

Attorneys for Petitioner

A-l

APPENDIX A

Carl Edwin WIGGINS,

Petitioner-Appellant,

Vv.

W.J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 80-2278.

United States Court of Appeals,

Fifth Circuit.

Nov. 8, 1982.

ON PETITION FOR REHEARING AND

SUGGESTION FOR REHEARING

EN BANC

(Opinion July 26, 1982, 5 Cir., 1982, 681 F.2d 266)

Before GARZA, POLITZ and WILLIAMS, Circuit

Judges.

PER CURIAM:

The Petition for Rehearing is DENIED and the Court

having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who

are in regular active service not having voted in favor of

it, (Rule 35 Federal Rules of appellate Procedure; Local

Fifth Circuit Rule 16) the Suggestion for Rehearing En

Banc is also DENIED.

Before CHARLES CLARK, Chief Judge, BROWN,

GEE, RUBIN, REAVLEY, POLITZ, RANDALL,

A:-2

TATE, JOHNSON, WILLIAMS, GARWOOD, JOLLY

and HIGGINBOTHA\M, Circuit Judges*.

E. GRADY JOLLY, Circuit Judge, with whom

CLARK, Chief Judge, BROWN, GEE And GAR-

WOOD, Circuit Judges, join, dissenting from denial of

Suggestion for Rehearing En Banc:

The issue presented by this case is one of first impres-

sion and concerns the question of whether a criminal

defendant’s Sixth Amendment pro se rights under

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975), are violated when court-appointed

standby counsel intermittently interrupts the defen-

dant’s presentation of his case.

Because I am convinced that the defendant did con-

duct his own defense and that the occasional interrup-

tions by standby counsel were harmless, and because of

the precedential effect of this case and its impact on the

conduct of criminal trials in the future, I respectfully

dissent from Judge Garza's thoughtful, well-written opi-

nion,

In this opinion the court has stated that the test in

assessing violation, vel non, of a defendant's right to

self-representation is one of ‘‘harmless error.”’

Elucidating the applicability of this test, the court has

cited Chapman v. United States, 553 F.2d 886, 891 (5th

Cir. 1977), which stated in dictum that harmless error

exists where the defendant is ‘‘afforded a genuine oppor-

* Judge Garza, author of the opinion, took senior status just prior

to the rendition of the opinion and did not participate in the en banc

vote.

A-3

tunity to help conduct his defense.’’ Wiggins v. Estelle,

681 F.2d 266 at 274 n.26 (5th Cir. 1982).'

In making a determination ot whether there has been

harmless error, ‘‘an examination of the record as a whole

is necessary; passages are to be examined in context,

and evaluated in light of their effect on the total mix.”’

Id. at 274.

Viewing the record of this 4-day trial ‘‘as a whole,”’ the

inescapable conclusion is that not only did Wiggins have

a ‘‘genuine opportunity to help conduct his defense,’’ he

did in fact conduct his defense. He conducted the voir

dire without assistance or interference from counsel,

made the opening statement to the jury, examined and

cross-examined witnesses, objected to evidence and

arguments, and argued his case to the jury at both

stages of the bifurcated trial.

When conflict occasionally arose between the defen-

dant and standby counsel, the trial court recognized the

defendant’s pro se rights and sustained his position.

1. In Chapman, the court cited Juelich v. United States, 342 F.2d

29 (5th Cir.), as an “appropriate use of the harmless error

doctrine." 553 F.2d at 891 n.9. In Juelich this court held that

denial of the statutory right to pro se defense under 28 U.S.C § 1654

was not per se grounds for reversal, absent a showing of prejudice:

A careful reading of the record convinces us that appointed

counsel was able, diligent and faithful, and that his participa-

tion in the trial certainly did not prejudice Juelich. Indeed,

Juelich himself was freely permitted to assign additional

grounds for his motion to vacate, to testify at legnth in his own

behalf, to ask questions of the witnesses, and to argue his con-

tentions. He thus had the benefit both of his counsel's ser-

vices and of his own direct participation in the hearing. He

was in no way prejudiced by the presence and participation of

his counsel.

342 F.2d at 33.

A-4

When standby counsel sought to interject something,

the trial court inquired specifically as to whether the

defendant had given his permission.

On the whole, the defendant and counsel worked well

together in full view of the jury. The defendant ac-

cepted numerous objections made by standby counsel

and participated jointly with him in matters such as

cross-examination and arguments to the jury.

In my view, the few incidents of interference which oc-

curred were, examined in context, harmless under the

Chapman standard. These incidents, which involved

the use of profanity by standby counsel, were embar-

rassing to the trial court and are embarrassing to this

court. This impropriety does not alter the fact that the

defendant conducted his own trial within the framework

laid down in Farretta. We should not allow our embar-

rassment to create bad precedent as a means of apologiz-

ing.

The importance of this case arises from the fact that

the rule enunciated therein that standby counsel is ‘’to

be seen and not heard’ creates numerous difficulties for

trial court judges in their conduct of criminal trials.

This rule defies the rough-and-tumble realities of a fast-

moving criminal trial and places judges in an imprac-

tical, inflexible strait-jacket. I am concerned that it

presents opportunities for ill-motivated defendants (or

their attorneys for that matter) to set-up and sandbag

the trial court into committing error.-

The perfect trial has yet to be conducted. Its im-

possibility cannot, of course, deter our efforts for its

2. I note, for example, that in this case the defendant pleaded,

alternatively, ineffective assistance of counsel. Following the dic-

tates of this case, | would not be surprised to see such either or ap-

peals become routine practice.

A-5

achievement. Nevertheless, we must be aware of the

realities with which trial judges grapple, day in and day

out. It is my view that the panel lost that awareness,

and that the en banc court should review this case before

it becomes precedent in this circuit. I therefore dissent

from the decision not to grant en banc.

B-1

APPENDIX B

Carl Edwin WIGGINS,

Petitioner-Appellant,

Vv.

W.J. ESTELLE, Jr., Director, Texas

Department of Corrections,

Respondent-Appellee.

No. 80-2278.

United States Court of Appeals,

Fifth Circuit.

Nov. 8, 1982.

Appea! from the United States District Court for the

Western District of Texas.

Before GARZA, POLITZ and WILLIAMS, Circuit

Judges.

GARZA, Circuit Judge:

Rarely does a case come before this Court with an

issue never previously addressed. This is such a

case. While other issues have been raised,’ the pivotal

1. On this appeal, appellant has reurged all of the theories for

federal habeas corpus relief presented below. Wiggins claims: (1)

that he was denied due process because of pre-indictment delay; (2)

that he was denied his right to a speedy trial; (3) that he was placed

in double jeopardy when he was reprosecuted after his first convic-

tion was set aside; (4) that he was denied his consitutional right to

represent himself; (5) that he was denied effective assistance of

B-2

issue on this appeal is whether a defendant who is per-

mitted to conduct his own defense may still be denied

his constitutional right of self-representation’ by un-

wanted interferance in his behalf by court-appointed,

standby counsel. We conclude that such a violation can

occur, as it did in the instant case, and reverse the

district court’s denial of the Great Writ.

The circumstances surrounding the crime are easy to

relate. In the early evening of January 17, 1972, a man

wielding a rusty pistol robbed a Piggly Wiggly store in

San Antonio. After having the cashier stuff the day’s

proceeds into a brown paper bag, the robber fled the

store and drove away in his car. Before driving away,

however, a second store employee managed to see the

thief’s license plate number and wrote it down in the

palm of his hand. That number was later traced to the

appellant, Carl Wiggins.

(footnote continued from previous page)

counsel; (6) that he was denied the right to obtain defense witnesses;

(7) that he was denied an adequate record for appeal: and (8) that he

was denied the right to represent himself on appeal.

If meritorious, the first theories would demand that appellant

forever be set free. The balance are less final. While the second

three theories would require that Wiggins be given a new trial. the

latter two would only permit him to re-appeal. A review of the

record and applicable !aw reveals the first set to be spurious. The

bulk of the remainder need not be discussed in light of our reversal

of the district court's denial of habeas relief.

2. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d

562 (1975).

B-3

After a few false starts, Wiggins was indicted and

subsequently brought to trial. Before trial commenced,

however, appellant requested that he be permitted to

conduct his own defense. The court granted that re-

quest, but at the same time appointed two attorneys as

standby counsel.’

3. Wiggins was originally arrested on February 20, 1972, and an

indictment was returned approximately two months later, On May

17, 1972, defendant successfully had that indictment quashed for

being fatally defective. Accordingly, he was released. On June 7,

1972, Wiggins was reindicted for the same offense and taken into

custody on June 29, 1972. He was tried in January 1973, found

guilty, and, because of a charge of enhancement, was sentenced to

life imprisonment. Approximately three weeks after sentencing, a

hearing was held at defendant's request regarding two motions: a

motion to withdraw notice of appeal and a motion for new trial. At

that hearing, it was discovered that the second indictment was also

fatally defective, and the court granted Wiggins’ request for a new

trial, Five days later, on March 28, 1973, two new indictments were

returned by the grand jury, both alleging the same offense, On

June 4, 1973, the State elected one of the indictments to try Wig-

gins under, and the trial in question commenced.

4. DEFENDANT: Your Honor, I am defending myself and feel

that relative to the motions that I filed, that they can be heard

without the transcript.

MR. SAMPLES: Your Honor, there has—an issue has been raised

as to the representation of Mr. Wiggins. The Court did appoint

myself, Benjamin Samples to represent Mr, Wiggins, along with

Mr. Norvell Graham who is here, and although I understand there

was a previous trial and Mr. Wiggins did at that time represent

himself, | don't know whether the determination has been made by

this Court as to who is going to represent whom

THE COURT. Well, Mr Wiggins has a right to represent himself,

and under the law the Court has made available to him for coun

sultation |sic| andor use, that he would wish to make within the

framework of your professional abilities, both you and Mr Graham

who will be available, that he may consult with whoever he wishes

to consult, (footnote continued on following page)

B-4

The conduct of these attorneys during the course of

the trial is the core of appellant's argument that he was

denied his Sixth Amendment right of self-

representation. While the court made it clear that

counsel were present for advisory purposes only,’ it was

not long before one of the attorneys began to take on a

more active role. Soon Wiggins began to protest

against standby counsel's unsolicted participation,

claiming that it prohibited him from conducting his own

(footnote continued from previous page)

Now, as I understand the law, he has a right to represent himself

as long as he does that within the framework of the law and the rules

of the proper conduct of the trial.

There may be times when his knowledge and ability is not such

that he is doing it properly and it may be that the Court at that time

will suggest to him that he consult with counsel, but counsel will be

here at the counsel table with him and confer with him as he wishes.

Let the record show that the defendant, Mr, Carl Edwin Wiggins,

has by his own design, elected to be attorney for himself pro se, but

that the Court has appointed previously Mr, Ben Samples and also

Mr. R. Norvell Graham, both practicing members of the San An-

‘onio Bar, to assist Mr. Wiggins, to advise Mr. Wiggins if he wishes

(0 be advised, or to consult with them when the Court directs he

consult with them, that they are here present in Court and available

itting right behing him.

You may proceed

tecord, vol, |. at 12-14,

)». id,

B-5

defense.’ The court's response was that defendant was

going to receive counsel's aid whether he wanted it or

not.’ When defendant later requested that the court at

least instruct standby counsel not to take the initiative,

6. MR.GRAHAM: Again, Your Honor, we certainly believe that

the arrest of the defendant's son, because of the , because of the—

DEFENDANT: Your Honor, the defendant's son was not ar-

rested,

THE COURT: Wait a minute.

DEFENDANT: Your Honor, I would like to defend myself, |

would appreciate it, sir, if you would ask this man to let me defend

myself,

MR. GRAHAM: Certainly. Help yourself.

DEFENDANT: I would be grateful, I have not solicted his

assistance, Your Honor, and | don’t want it,

Id at 39,

7. THE COURT: You are going to get help and/or assistance

from him because you are obviously not a lawyer.

DEFENDANT: Yes sir, | am not a lawyer,

THE COURT: And this trial, if we do go into it, is going to be

conducted according to the rules of law,

DEFENDANT: Yes sir.

THE COURT: And there might be an occasion when this Court is

going to require that you consult with them as to what the proper

ure may be.

DEFENDANT: Yes sir.

THE COURT: You will have every right made available to you

under the law, as this Court is able to determine.

DEFENDANT) | appreciate that, Your Honor, but for assistant

counsel to initiate something that the defendant does not want, |

would like to consult with the attorneys for advice. | will appreciate

that, but for counsels to initiate something that is contrary to the

defendant's case, well, then, | couldn't appreciate that,

Id at 40-41.

B-6

the court refused." Thereafter, counsel continuously

participated in the proceedings, both in and outside the

presence of the jury. In addition to making objections

too numerous to cite, counsel on several occasions curs-

8. THE COURT: All right. Mr. Wiggins, what is your

pleasure. Mr. Graham here was appointed just two days ago as ad-

ditional counsel. The law provides that when an attorney is ap-

pointed to represent someone, he shall have ten days time in which

to prepare. You have had one attorney, though, that has been

available to you and has had a month and a half to prepare, but you

wish to proceed at this time?

DEFENDANT: Yes, Your Honor, I do.

THE COURT: You are waiving the ten days as far as Mr.

Graham is concerned?

DEFENDANT: Yes, Your Honor.

THE COURT: The basis of that is that you expect to be an at-

torney for yourself pro se?

DEFENDANT: Yes, Your Honor. In fact, not only that, I would

like to waive his assistant, if I may.

THE COURT: The Court is not going to relieve you of

that. Now, you can use it or not use it. It's available to you in this

case.

DEFENDANT: Yes sir, I would ask the Court to ask Mr.

Graham not to take the initiative to interfere with the defendant

here, if I may do that?

THE COURT: Well—

DEFENDANT: I mean, if I want Mr. Graham's help I will ask

for it and appreciate it if he wouldn't volunteer without me asking

for it,

THE COURT: Well, Mr. Graham is a competent attorney and he

has much experience in this type of thing and I am sure what he is

trying to do is what he thinks is best for you. I am not going to

order him to do or not to do anything. If some problem or situation

arises, I will act on it at that time. I am not going to order him not

to,

DEFENDANT: Your Honor, do I understand that the Court is

forcing the services of Mr. Graham on the defendant?

THE COURT: His availability, yes.

DEFENDANT: May I except to that, Your Honor?

THE COURT: It’s in the record.

Id. at 65-67.

B-7

ed,’argued with defendant,'’ and moved for mistrial

against the defendant's wishes.'' By the time the smoke

cleared, Wiggins had been convicted and sentenced to

life imprisonment as a recidivist.

Little time was lost before Wiggins began running the

gauntlet of direct appeal,’ petitions for state writ of

9. One example of this occurred when Wiggins was examining a

witness during voir dire:

DEFENDANT: I war to ask him this question here on this

statement that's dated February 15. May I show it to you?

MR. GRAHAM: God damn it. Wait a minute. I am trying to

get...

(Thereupon, Mr. Graham conferring with defendant.)

Id. at 215. See also Record, vol. II, at 422.

10. The following is representative:

DEFENDANT: Your Honor, I have some questions relative to

the in-Court—

MR. GRAHAM: We will take him on cross-examination.

DEFENDANT: I would like to ask him. They are very relevant.

MR. GRAHAM: You can get him on cross-examination. Sit

down.

Record, vol. I, at 223.

11. MR. GRAHAM: Notwithstanding the Court's instruction, I

am sure it is so prejudicial as to require a mistrial.

DEFENDANT: No, Your Honor. I object to a mistrial. I object

to counsel—

THE COURT: I denied the motion for mistrial. Overruled.

MR. GRAHAM: Jesus Christ.

Record, vol. II, at 422. See also Record, vol. II, at 345-46, 498-99,

512-14 and 539-40.

12. Wiggins v. State, 520 S.W.2d 780 (Tex.Cr.App.1975).

habeas corpus,'’ and a petition to the Supreme Court for

writ of certiorari. When these routes proved unfruitful,

Wiggins undauntedly applied for federal habeas corpus

relief..* The district court disposed of the petition by

adopting the recommendations of the federal magistrate

to whom it had been referred. This appeal followed.

Fool for a Client ?'*

A

The leading case on the right to self-representation is

Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45

L.Ed.2d 562 (1975). In that case, the accused clearly

and unequivocally let it be known prior to trial that he

wished to represent himself and did not want the aid of

counsel. Yet despite a knowing and intelligent waiver,

the state court compelled the accused to accept the ser-

vices of a court-appointed public defender. The

Supreme Court held, in a six to three decision, that

under these circumstances, the defendant had been

13. Wiggins filed five petitions for state habeas corpus relief and

hundreds of pages of various pleadings in the state courts. His first

two applications were filed while his direct appeal was pending. The

next two applications were denied by the Texas Court of Criminal

Appeals on October 15, 1975, and may 3, 1978. On January 10,

1979, appellant's fifth application was denied; he was also found to

have abused the writ.

14. Six separate points of error connected with his trial and con-

viction were alleged, together with two points of error connected

with his appeal from that conviction. see note 1 supra.

15. “If there is any truth to the old proverb that ‘[o]ne who is his

own lawyer has a fool for a client,’ the Court by its opinion today

now bestows a constitutional right on one to make a fool of

himself.'’ Faretta v. California, 422 U.S. 806, 852, 95 S.Ct. 2525,

2549, 45 L.Ed.2d 562, 592 (1975)(Blackmun, J., dissenting).

B-9

denied his constitutional right to conduct his own of-

fense.

In the case before us the defendant also chose, for

whatever reason,"* to proceed pro se. Unlike the Faretta

16. Numerous theories have been advanced for why a defendant

might choose to represent himself.

Defendant's refusal of the right to the assistance of

counsel may be grounded on the defendant's belief that,

with counsel, the defendant will be denied any opportuni-

ty to speak for himself or herself and that only through

personal presentation of the case can the merits of the

case really be made known. Further, a defendant may

believe that no lawyer will faithfully represent the defen-

dant at a fair fee, or that the judicial system is so in-

herently unjust that the only chance for a fair trial is for

the defendant to represent himself or herself. Other

motives may include the hope that the absence of counsel

may afford a basis for reversal of a conviction regarded as

inevitable, or the desire to ventilate hostility through the

dramatic vehicle of a disorderly trial.

ABA Standards of Criminal Justice, The Trial Judge's Function,

Standard 6-3.6(a)(2nd ed. 1980). See generally Comment, The Right

to Defend Pro Se in Criminal Proceedings, 1973 Wash.U.L.Q. 679,

679-80 n.3 (1973); and Laub, The Problem of the Unrepresented,

Misrepresented and Rebellious Defendant in Criminal Court, 2

Duq.L.Rev. 245 (1964).

By far, the most frequently cited theory for why a defendant will

elect to proceed pro se is that of trial strategy. He may view self-

representation as a means of invoking the jury's sympathy by pro-

jecting the image of the lone defendant against the mammoth

State. Participation by court-appointed counsel would sour that

image in the minds of the jurors. A defendant may also want the

opportunity to have the jury judge him as a person, and hopefully

decide all matters of credibility in his favor. As part of that plan, he

may choose to take a very low key approach to trial, thereby convey-

ing the impression that he has nothing to hide. In this situation,

counsel's intrusion may force disagreements and confusion which

would undermine the picture the accused wishes to present.

(footnote continued on following page)

B-10

case, however, the right was granted. Nevertheless,

court-appointed standby counsel were appointed over

Wiggins’ objections.’ As already shown, one of these

(footnote continued from previous page)

It is undeniable that in most criminal prosecutions

defendants could better defend with counsel's guidance

than by their own unskilled efforts. But where the defen-

dant will not voluntarily accept representation by

counsel, the potential advantage of a lawyer's training

and experience can be realized, if at all, only

imperfectly. To force a lawyer on a defendant can only

lead him to believe that the law contrives against

him. Moreover, it is not inconceivable that in some rare

instances, the defendant might in fact present his case

more effectively by conducting his own defense. Per-

sonal liberties are not rooted in the law of averages. The

right to defend is personal. The defendant, and not his

lawyer or the State, will bear the personal consequences

of a conviction. It is the defendant, therefore, who must

be free personally to decide whether in his particular case

counsel is to his advantage. And although he may con-

duct his own defense ultimately to his own detriment, his

choice must be honored out of ‘that respect for the in-

dividual which is the lifeblood of the law.’

Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 2540, 45

L.Ed.2d 562, 581 (1975).

17. See notes 4 an 8 supra.

That a trial court may appoint standby counsel even over the ob-

jections of an unwilling defendant is without question. This was ex-

pressly recognized in Faretta v. California, 422 U.S. 806, 834 n.46,

25 S.Ct. 2525, 2541 n.46, 45 L.Ed.2d 562, 581 n.46 (1975).

The presence of standby counsel allows a trial judge to retain an

_mpartial role since the defendant may instead turn to his court-

sppointed attorney for assistance when troubled by legal

matters. Should the pro se defendant lose his self-representation

-ignt—for exampie, by obstructionist misconduct—standby counsel

can step in and the trial can continue uninterrupted, thereby conser-

ving judicial resources. The same may be said for the situation

where defendant chooses to abandon the right.

B-11

attorneys did far more than merely ‘‘standby.”’ The nar-

row issue presented on this appeal, then, is whether a

defendant's Sixth Amendment right to self-represen-

tation may be violated by the unsolicited participation

of overzealous, court-appointed standby counsel.” it is

an issue not presented in Faretta, but one clearly raised

by it.

Since Faretta, the Supreme Court has shed little light on

how many of the procedural difficulties resulting from

that decision’* should be resolved.* Nor has there been

18. This decision pertains only to those situations in which a

defendant has elected to proceed pro se, but the court, in its discre-

tion, has appointed standby counsel. What is not currently before

us is the situation where, under State law, a defendant may elect to

go to trial and conduct his own defense together with counsel. See

Faretta v. California, 422 U.S. 806, 813 n.10, 95 S.Ct. 2525, 2530

n.10, 45 L.Ed.2d 562, 569 n.10 (1975).

19. In the conclusion to his dissent, Justice Blackmun ominously

warned that

Although the Court indicates that a pro se defendant

necessarily waives any claim he might otherwise make of

ineffective assistance of counsel, ante, at 835 n.46, 45

L.Ed.2d 581, the opinion leaves open a host of other pro-

cedural questions. Must every defendant be advised of

his right to proceed pro se? If so, when must that notice

be given? Since the right to assistance of counsel and the

right to self-representation are mutually exclusive, how is

the waiver of each right to be measured? If a defendant

has elected to exercise his right to assistance of standby

counsel? How soon in the criminal proceeding must a

defendant decide between proceeding by counsel or pro

se? Must he be allowed to switch in midtrial? May a

violation of the right to self-representation ever be

harmless error? Must the trial court treat the pro se

defendant differently than it would professional counsel?

I assume that many of these questions will be anwered

with finality in due course. Many of them, however, such

as the standards of waiver and the treatment of the pro se

(footnote continued on following page)

B-12

a case, Supreme Court or otherwise, in which a court has

been squarely presented with the question of defining

the role of standby counsel.'* However, notwithstan-

ding the paucity of authority on the subject, Faretta

itself offers some guidelines.

(footnote continued from previous page)

defendant, will haunt the trial of every defendant who

elects to exercise his right to self-representation. The

procedural problems spawned by an absolute right to

self-representation will far outweigh whatever tactical ad-

vantage the defendant may feel he has gained by electing

to represent himself.

Faretta v. California, 422 U.S. 806, 852, 95 S.Ct. 2525, 2549, 45

L.Ed.2d 562, 591-92 (1975).

20. In the seven years since its release, the Supreme Court has

referred to Faretta only ten times, mostly in a cursory fashion. Ed-

wards v. Arizona, 451 U.S. 477, 482, 489, 101 S.Ct. 1880, 1883,

1887, 68 L.Ed.2d 378, 384, 389 (1981); Lenhard v. Wolff, 444 U.S.

807, 808, 100 S.Ct. 29, 62 L.Ed.2d 20 (1979); Gannett Co., Inc. v. De

Pasquale, 443 U.S. 368, 380, 417, 99 S.Ct. 2898, 2905, 61 L.Ed.2d

608, 621 (1979); United States v. Grayson, 438 U.S. 41, 56, 98 S.Ct.

2610, 2618, 57 L.Ed.2d 582, 593 (1978); Bates v. State Bar of

Arizona, 433 U.S. 350, 382, 97 S.Ct. 2691, 2708, 53 L.Ed.2d 810, 834

(1977); Brewer v. Williams, 430 U.S. 387, 419, 97 S.Ct. 1232, 1249,

51 L.Ed.2d 424, 449 (1977); North v. Russell, 427 U.S. 328, 343, 96

S.Ct. 2709, 2716, 49 L.Ed.2d 534, 544 (1976); Estelle v. Williams,

425 U.S. 501, 522, 96 S.Ct. 1691, 1701, 48 L.Ed.2d 126, 141 (1976);

Michigan v. Mosley, 423 U.S. 96, 109, 96 S.Ct. 321, 329, 46 L.Ed.2d

313, 324 (1975); and Herring v. New York, 422 U.S. 853, 864, 866, 95

S.Ct. 2550, 2557, 45 L.Ed.2d 593, 602 (1975).

21. A pre-Faretta case has stated in dicta, however, that

‘allthough it is not error for the court to require counsel to be pre-

--nt and prepared to give advice, such counsel may not interfere

«ith the defendant s presentation of the case and may give advice

ily upon request. [/nited States v. Price, 474 F.2d 1223, 1227

stn Cir. 1973). See also United States v. Pomeroy, 485 F.2d 272,

275 (9th Cir. 1973), cert. denied, 415 U.S. 981, 94 8.Ct. 1571, 39

..Ed.2d 877 (1974).

(footnote continued on following page)

B-13

The essence of Faretta was succinctly stated:

The Sixth Amendment does not provide

merely that a defense shall be made for the ac-

cused; it grants to the accused personally the

(footnote continued from previous page/

A more active role for the attorney appears to be suggested by

Standard 6-3.7 of the ABA Standards of Criminal Justice, The Trial

Judge's Function (2nd ed. 1980):

When a defendant has been permitted to proceed

without the assistance of counsel, the trial judge should

consider the appointment of standby counsel to assist the

defendant when called upon and to call the judge's atten-

tion to matters favorable to the accused upon which the

judge should rule on his or her motion. Standby counsel

should always be appointed in cases expected to be long

or complicated or in which there are multiple defendants.

The Comments section to that standard, however, states that ‘the

court should ordinarily appoint standby counsel to assist the accus-

ed if and when called upon...’ (emphasis added).

See also Uniform Rules of Criminal Procedure 711, in which it was

stated that

Notwithstanding acceptance of a waiver the court may

appoint standby counsel to assist when called upon by

the defendant, to call the court’s attention to matters

favorable to the defendant upon which the court should

rule upon its own motion, and, should it become

necessary for a fair trial, to conduct the defense.

The Comments section further stated that:

As long as the standby counsel only assists when called

upon by the defendant and calls the court s attention to

matters favorable to the defendant upon which the court

should rule upon its own motion, as provided by the ABA

Standard, there is not interference with the defendant's

representing himself.

B-14

right to make his defense... The right to defend

is given directly to the accused; for it is he who

suffers the consequences if the defense fails.

The counsel provision supplements this

design. It speaks of the ‘‘assistance”’ of counsel,

and an assistant, however expert, is still an

assistant. The language and spirit of the Sixth

Amendment contemplate that counsel, like the

other defense tools guaranteed by the Amend-

ment, shall be an aid to a willing defendant....

To trust counsel upon the accused, against his

considered wish, thus violates the logis of the

Amendment. In such a case, counsel is not an

assistant, but a master; and the right to make a

defense is stripped of the personal character

upon which the Amendment insists .... An un-

wanted counsel “‘represents’’ the defendant on-

ly through a tenuous and unacceptable legal fic-

tion. Unless the accused has acquiesced in such

representation, the defense presented is not the

defense guaranteed him by the Constitution,

for, in a very real sense, it is not his defense.

Faretta v. California, 422 U.S. 820-21, 95 S.Ct. 2533-34.

Court-appointed counsel was never meant to be an

albatross tied around a defendant’s neck. Instead, he

was intended to be a means through which a defendant,

ignorant of the intricate mechanics of the law, could ef-

fectively present his defense. See Powell v. Alabama,

287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158, 170

(1932). But like any other tool, he may be used or not us-

ed. Here, Wiggins chose to conduct his own defense;

this much was constitutionally guaranteed under Faret-

ta. He also wished to dispose of the court-appointed

standby counsel, but the trial court refused. Under

Faretta, this matter was within the court’s

B-15

discretion. But while the presence of standby counsel

may be forced on a defendant, his aid may not. His func-

tion is ‘‘to aid the accused if and when the accused re-

quests help..." Faretta v. California, 422 U.S. at 835

n.46, 95 S.Ct. at 2541. Anything more would prevent

the pro se defendant from conducting his defense.

Therefore, the rule that we establish today is that court-

appointed standby counsel is ‘‘to be seen and not

heard.’’ By this we mean that he is not to compete with

the defendant or supersede his defense. Rather, his

presence is there for advisory purposes only,” to be used

or not used as the defendant sees fit.*

B

The more difficult question on this appeal was posed

by Justice Blackmun in his dissent to Faretta: ‘‘May a

violation of the right to self-representation ever be

harmless error?’’** Perhaps the best authority for the

22. Farretta v. California, 422 U.S. 806, 835 n.46, 95 S.Ct. 2525,

2541 n.46, 45 L.Ed.2d 562, 581 n.46 (1975). See also Mayberry v.

Pennsylvania, 400 U.S. 455, 466, 91 S.Ct. 499, 505, 27 L.Ed.2d 532,

540 (1971)(Burger, C.J., concurring).

23. His role, of course, will broaden should defendant lose his

right to conduct his own defense, either through abandonment or

forfeiture. See note 17 supra.

24. While not before us, we are conscious of the fact that in the in-

terests of justice, the court of standby counsel may wish to draw the

defendant's attention to some legal aspect of which he may be pain-

fully unaware. In such instances the court, either on itw own or

after being asked by standby counsel, may request that the accused

confer with counsel, but the defendant may elect not to do so.

25. Faretta v. California, 422 U.S. 806, 852, 95 S.Ct. 2525, 2549,

45 L.Ed.2d 562, 592 (1975). For other procedural questions left

open by Faretta, see note 19 supra.

B-16

proposition that a denial of the right to conduct one’s

own defense will always be reversible error is Faretta

itself. Nowhere in the case is there any indication that

the defendant was prejudiced by the rejection of his pro

se request, that his state-appointed attorney did not

conduct an able defense, or that there were any

statutory or constitutional grounds for reversal other

than the trial court’s denial of Faretta’s right of self-

representation. The case is clearly one in which an

otherwise ‘harmless’ denial of a constitutional right is

itself sufficient grounds for reversal.*

Not every violation of a constitutional right, however,

requires an automatic reversal of a conviction regardless

of the facts and circumstances. As the Supreme Court

stated in Harrington v. California, 395 U.S. 250, 89 S.Ct.

1726, 23 L.Ed.2d 284 (1969): ‘‘although ‘there are some

constitutional rights so basic to a fair trial that their in-

fraction can never be treated as harmless error:;, not all

‘trial errors which violate the Constitution automatical-

ly call for reversal.’’’ 395 U.S. at 251, 89 s.Ct. at 1727

(quoting Chapman v. California, 386 U.S. 18, 23, 87 S.Ct.

824, 827, 17 L.Ed.2d 705, 710 (1967)). Faretta is

distinguishable. There the defendant's right to proceed

pro se had been completely denied. Wiggins, on the

other hand, had been granted that right. It had,

however, been interfered with. Under these limited cir-

26. In Chapman v. United States, 553 F.2d 886, 891-92 (5th cir.

1977), this Court held that the denial of the right to self-

representation can never be considered harmless in the sense that

an error that has no effect on the outcome of the case is considered

harmless. See also Scott v. Wainwright, 617 F.2d 99, 104 (5th Cir.

1980), cert. denied, 449 U.S. 885, 101 S.Ct. 240, 66 L.Ed.2d 111

(1980); and United States v. Dougherty, 473 F.2d 1113, 1127-30

(D.C.Cir. 1972). The Chapman decision did leave room, however, for

a finding of harmless error if the defendant was ‘afforded a genuine

opportunity to help conduct his defense."’ 553 F.2d at 891 n.9.

B-17

cumstances, there is a need for a harmless error rule.

Were there none, a reversal would be mandated every

time overzealous counsel, acting in the best interests of

his client, volunteered his aid without prior permission.

This would be true even though the interjections were

few and innocuous. Moreover, an automatic reversa!

rule would give unscrupulous counsel carte blanche to

sandbag the prosecution. All that would be necessary

to secure a new trial for a defendant whose conviction is

a foregone conclusion would be for counsel to throw

himself into the fray. Such results were not meant to

be. Some flexibility is necessary, and the harmless error

rule is the vehicle that takes us there.

Notwithstanding our adoption of such a rule for cases

like the present one, the result below must still be

reversed. ''[BJefore a federal constitutional error can be

held harmless, the court must be able to declare a belief

that it was harmless beyond a reasonable doubt.” Chap-

man v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17

L.Ed.2d 705, 710-11 (1967). The burden is a heavy one,

and it rests on the government. In order to make such a

determination, an examination of the record as a whole

is necessary; passages are to be examined in context,

and evaluated in light of their affect on the total mix.”

27. While interjections made in the presence of the jury are in-

herently prejudicial, and are therefore subject to strict scrutiny,

statements made outside their presence are not to be

discounted. Conceivably, a defendant could become so frustrated or

flustered by standby counsel's interference as to be unable to regain

his composure by the time the jury returned. Colloquies such as

that set forth in note 10 supra would warrant further

consideration. In addition, it is also important to note that trial

Strategy and the image defendant wishes to project to the jury are

not the only reasons why a defendant may wish to proceed pro

se. See note 16 supra.

B-18

A review of the record in the case at hand reveals that

the government has failed its task of demonstrating

that counsel's participation was harmless. As indicated

earlier, counsel continuously objected, and on several oc-

casions moved for mistrial, despite defendant's repeated

requests that he play a more passive role. They were in

constant disagreement over basic trial strategy, and at

one point counsel cursed in front of the jury. We fail to

perceive how such conduct could have anything but a

negative impact on the jury. It also destroyed Wiggins’

own perception that he was conducting his defense.

C.

One final point to address is the question of Wiggins’

acquiescence. The government argues that more often

than not, defendant approved standby counsel's par-

ticipation or failed to register any protest when counsel

acted in his behalf. Acquiescence, however, is not the

only possible explanation for defendant's conduct. Ear-

ly in the proceedings, the trial court let it be known that

it was not going to order standby counsel not to par-

ticipate.” More likely than not, Wiggins interpreted

this statement to mean that continuous objections

would be unproductive. Also to be considered is the fact

that confrontation, in the presence of the jury, would on-

ly help to destroy the image defendant wished to convey

to the jury.

All of the above, however, is speculation. Moreover, it

is unnecessary in light of this opinion’s definition of the

role of standby counsel. Once the right of self-represen-

tation has been asserted there will be no question of ac-

quiescence unless counsel's participation has been overt-

28. see note 8 supra.

B-19

ly encouraged by the defendant. Such action has not

taken place here.”

REVERSED and REMANDED for the granting of

the writ of habeas corpus and the entry of an ap-

propriate judgment.

29. Wiggins authored a brief statement which he requested his

court-appointed attorney on appeal to read to this Court. In light of

the fact that this opinion focuses on a defendant's right to proceed

pro se, it is appropriate that it be included here:

The Supreme Court, and this Court before the Supreme

Court, determined that the defendant has a constitu-

tional right to defend himself without counsel if and when

he elects to do so. This solidly established. And the trial

court may, even over the defendant's objection, appoint a

standby counsel for consultation or advisement. This

much is held by Faretta. Or in the event that the defen-

dant’s conduct becomes disruptive, to be available to

take over the defense if that becomes necessary. But

when standby counsel abandons his designated assign-

ment, and proceeds to participate in the trial against the

def ndant’s wishes, and over his objection, just how

much participation by unwanted counsel is to be allowed?

Where does there exist any markers to limit active par-

ticipation of an aggressive lawyer that a defendant on

trial wants no part of at all? If such active, unwanted,

and unsolicited participation of standby counsel as this

case presents is approved by the Court, would not this

then open the doors for future cases that would provide

for trial judges to make subjective and possibly ine-

quitable determinations from case to case allowing or not

allowing designated standby counsel to participate in

varying degrees even over the objections of pro se defen-

dants? If this becomes practice, where would the counsel

participation line be drawn? If this becomes practice, it

could be not said [sic] that such a defendant would have

standing to complain of the effectiveness or ineffec-

tiveness of counsel actively participating in trial against

his [the defendant's] will. If this became practice, even-

tually the constitutional nght we're talking about would

surely become meaningless.

C-1

APPENDIX C

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CARL EDWIN WIGGINS,

Petitioner

7 NO. SA-79-Ca-128

W.J. ESTELLE, JR., Director

Texas Department of

Corrections, and

MARK WHITE,

Attorney General of Texas,

Respondents $

ORDER

OOOH HH OH OH MH Mm mH

On this date came on to be considered the petition for

writ of habeas corpus filed herein by Carl Edwin Wig-

gins, and the Court having examined the pleadings of

the petitioner, and having examined the report of the

United States Magistrate and his recommendation,

together with any objections, is of the opinion and finds

that the magistrate’s report is in all things correct and

should be approved and adopted. It is accordingly

ORDERED that the petition for writ of habeas corpus

be, and the same is hereby, DENIED.

SIGNED and ENTERED this the 26th day of

August, 1980.

s Fred Shannon

United States District Judge

C-2

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF TEXAS

SAN ANTONIO DIVISION

CARL EDWIN WIGGINGS,

Petitioner

V. NO. SA-79-CA-123

W.J. ESTELLE, JR., Director

Texas Department of

Corrections, and

MARK WHITE,

Attorney General of Texas,

Respondents §

§

§

§

§

§

§

§

§

§

§

FINDINGS AND RECOMMENDATIONS

OF THE UNITED STATES MAGISTRATE

TO: Honorable Adrian A. Spears

United States District Judge

Petitioner, CARL EDWIN WIGGINS, has filed this

application for writ of habeas corpus pursuant to 28

U.S.C. 2254, setting forth six separate points of alleged

error in connection with his trial and conviction for rob-

bery by assault in the 187th Judicial District Court of

Bexar County, Texas, in Cause No. 73-CR-548. He fur-

ther alleges two points of error in connection with his ap-

peal from that conviction, which appeal resulted in con-

viction being affirmed. Wiggins v. State, 520 S.W.2d

780 (Tex. Crim. App. 1975). Petitioner's punishment was

assessed at life imprisonment in the Texas Department

of Corrections.

Before reaching the merits of petitioner's application

for writ of habeas corpus, his motion to disregard

respondent's answer must be determined. Petitioner

originally filed his application for writ of habeas corpus

in the Southern District of Texas, Houston Division, on

C-3

February 23, 1979. The petition was transferred to this

Court on April 3, 1979. On June 1, 1979, the respondent

filed his first motion for extension of time to answer, to

which petitioner agreed, and an extension until July, 2,

1979, was ordered. Thereafter, on July 23, respondent

filed his second motion for extension of time requesting

an extension to July 26, which was granted. Petitioner

in the meanwhile had filed his motion for judgment

granting relief on July 25 and on July 30, filed a motion

to vacate the order granting the extension of time. Final-

ly, on July 26, an order was issued extending the time to

answer until October 1, 1979. Petitioner has strenuous-

ly objected to all extensions other than the extension to

July 2. He has further filed numerous motions request-

ing the Court to enter default against respondent and

grant the relief requested in his petition. In support

thereof he cites U.S. ex rel. Mattox v. Scott, 507 F.2d

919 (7th CSir. 1974). In that case the Court stated the

proper remedy was not to grant release of a petitioner

where the response was filed late, because to do so would

put the burden of default on the community at large, but

rather to refuse to consider the answer. /d. at 924. I

believe that reasoning is sound. Scott, supra; See Curtis

v. Perini, 301 F.Supp. 444, 445 (N.D. Ohio 1968), aff'd

413 F.2d 546 (6th Cir. 1969).

By way of a backdrop, petitioner was originally ar-

rested on February 20, 1972, and an indictment

(72-CR-777) was returned on April 19, 1972. On May 17,

1972, the indictment was discovered to be fatally defec-

tive and Wiggins was released. On June 7, 1972 he was

reindicted (72-CR-1141) for the same offense and was ar-

rested again on June 29, 1972. Wiggins was triec. in

January 1973, found guilty and punishment was set at

life imprisonment. On March 23, 1973, it was disccvered

the second indictment was also fatally defective. The

judgment and sentence were set aside and petitioner

was granted a new trial. Five days later, on March 28,

1973, two new idictments (73-Cr-648 and 73-Cr-653) were

C-4

returned by the grand jury both alleging the same of-

fense. On June 4, 1973, the State elected to try peti-

tioner under 73-CR-648 and he was subsequently con-

victed.

Turning next to the merits of the petition, petitioner's

first contention, that he was deprived of his right to pre-

sent his own defense, is wholly without merit. Peti-

tioner, on his own, made numerous pretrial motions, in-

cluding motions for discovery (S/F 7) to set aside the in-

dictment (S/F 8), special pleas (S/F 52), and preparation

of jury list (S/F 60). He also exercised virtually ex-

clusive management of the trial on the merits, leading

direct examination of his own witnesses (S/F 348, 368,

381, 383, 384, 399, 403, 408) and cross examination of

the State's witnesses (S/F 199, 269, 319, 332, 455, 532).

Petitioner also stated he would like to consult with the

attorneys for advice (S/F 40). Moreover, and not-

withstanding petitioner's complaints, that appointed

counsel, on his own initiative, repeatedly moved for a

mistrial and otherwise interjected unwelcome objec-

tions, petitioner more often than not approved of

counsel's actions (S/F 24, 26, 31-32, 82, 210-23, 235, 261,

284-86, 287-88, 301-304, 363, 421, 486, 517, 523-36, 541,

543). Indeed, any doubt that Wiggins was allowed to

conduct his own defense was resolved when the Court

refused appointed counsel an opportunity to question a

witness because Wiggins objected to the questions be-

ing asked. (S/F 306-308) Lastly, the Court stated

numerous times that Wiggins would be awarded

singular control over the defense (S/F 4-5, 31-32,

3 08, 430). I find that the record as a whole

establishes Wiggins was indeed allowed the right to con-

duct his own defense, and that the court-appointed at-

torneys were present in a standby, advisory capacity on-

ly. Appointment of counsel in that capacity was approv-

ed in Faretta v. California, 422 U.S. 806, 834 n.46, 95

S.Ct. 2525 (1974).

C-5

Any need to consider petitioner's second contention is

obviated by my finding he was allowed to represent

himself.

Wiggins next complains he was denied his sixth and

fourteenth amendment right to compulsory process of

two witnesses, Mr. Truman Beasley and Mr. Douglas

Simmons. He states he filed subpoenas for Beasley and

Simmons a month before trial but that the subpoenas

were never processed.

Initially it is noted petitioner filed his application for

subpoenas May 23, 1973, and trial on the merits began

June 7, 1973. He made application for a subpoena to

issue for Truman Beasley (Tr. 602-605), but failed to do

so for Doug Simmons (S/F 272, 394). The Court in-

structed Wiggins to consult with his attorney to effect a

subpoena on Simmons. There is nothing in the record to

show petitioner ever did so. Nor did the petitioner ever

show the materiality of Simmon’s testimony other than

‘* ..he could be material, he could have seen the robbery,

he could have given a description.”’ (S/F 395). Wiggins

also failed to insert into the record what Truman

Beasley would have testified to. Finally, after calling

Truman Beasley one last time, and there being no

response, Wiggins, against the advice of counsel, rested

(S/F 413-414). Petitioner, having made no attempt to

show the relevance or materiality of the witnesses’

testimony, or include what they would have testified to

in the record, failed to comply with necessary State pro-

cedural requisites. Brito v. State, 459 S.W.2d 834 (Tex.

Crim. App. 1970). That being the case, he cannot now

urge denial of compulsory process without first showing

both some cause for his default and prejudice resulting

therefrom. Buckelew v. United States, 575 F.2d 515

(5th Cir. ); Hoskins v. Wainwright, 440 F.2d 69, 71 (5th

Cir. 1971); See, Hardin v. Estelle, 484 F.2d 944 (5th Cir.

1973). Petitioner has demonstrated neither cause nor

prejudice.

C-6

Petitioner's next ground is that he was denied his

right to a speedy trial. In support of this contention he

states he was arrested on February 20, 1972, but not

tried in Cause No. 73-CR-648 until June 4, 1973, i.e., a

delay of approximately fifteen and one-half

months. While it is true petitioner's final conviction (in

Cause No. 73-CR-648) was not until June, 1973, the

record reflects petitioner was initially indicted for this

crim. in Cause No. 72-777, dated April 19, 1972. That

indictment was quashed on May 17, 1972. Wiggins was

subsequently reindicted on the same charge, brought to

trial, and convicted. The judgment of conviction and

sentence were set aside due to an insufficiency in the in-

dictment. Finally, on June 8, 1973, he was convicted

and sentenced to life imprisonment. The leading deci-

sion on the right to a speedy trial is Barker v. Wingo,

407 U.S. 514, 92 S.Ct. 2182 (1972). In that case the

Supreme Court held that a defendant's constitutional

right to a speedy trial could be determined only on an ad

hoc basis, balancing the conduct of the prosecution as

well as that of the defendant. It further pointed out

that factors such as the length of and reason for the

delay, the defendant's assertion of his right, and pre-

judice to the defendant should be considered. 407 U.S.

at 530. Torres v. Florida, 477 F.2d 555 (5th Cir. 1973);

U.S. v. Zane, 489 F.2d 269 (5th Cir. 1973). However,

that test was held not to apply to cases dealing with pre-

indictment delay absent a showing of actual

prejudice. United States v. Smith, 487 F.2d 175, 177

(5th Cir. 1973). The indictment under which Wiggins

was finally convicted (Cause No. 73-Cr-648) was return-

ed on March 28, 1973, approximately five days after

judgment was set aside under the previous indictment,

and his trial under 73-CR-648 began on June 8, 1973 less

than three months later. Of course a showing of actual

prejudice by petitioner would nevertheless mandate

granting relief. Actual prejudice has been defined as

‘* that prejudice resulting from a delay that has so im-

paired the defendant's capacity to prepare a defense as

C-7

to amount to an infringement on his right to a speedy

trial."’ United States v. Smith, supra. Having fully ex-

amined the lengthy pleadings and record, I am of the

opinion Wiggins has presented only the most tenuous

claims of prejudice. That being the case, that is, no ac-

tual prejudice having been shown, this ground is

without merit.

Petitioner next contends he was denied due process

and equal protection of the law because of ‘‘multiple pro-

secutions not in accord with state law.”’ In support of

this contention Wiggins argues the trial court was

without authority to set aside petitioner's conviction in

Cause No. 73-1141, there were no legal provisions for a

new trial under the circumstances, and his second trial

(73-CR-643) constituted double jeopardy. First, the

record shows the trial court set aside petitioner’s convic-

tion and sentence in Cause No. 72-1141 as a result of a

meritorious motion by the defense to grant a new trial

and dismiss Cause No. 72-1141. (Supp. Tr. No.

73-CR-648, in Cause No. 72-1141). The ground for the

motion was that the indictment was fatally defective in

that it failed to allege ownership. In view of the fact the

indictment was fatally defective no jeopardy attached.

Ward v. State, 520 S.W.2d 395, 397-98 (Tex.Crim.App.

1975). Therefore, a second trial of petitioner on the

same charge under a subsequent valid indictment was

proper. Ward, supra; See, U.S. v. Jasso, 442 F.2d 1054,

1056 (5th Cir. 1971), cert. denied 404 U.S. 845 (1971).

Wiggins penultimate allegation is that he was denied

a full and adequate record for appeal. In support of this

he alleges he specifically requested transcriptions of

hearings in the 187th Judicial District Court dated

December 7, 1972, and January 11, 1973, which hearings

related to ‘adverse services”’ by his appointed attorneys

in Cause No. 72-1141. Petitioner's conviction and

sentence in Cause No. 72-1141 having been set aside on

his own motion, any alleged ‘‘adverse services’’ by

defense counsel in that trial were thereby corrected.

Therefore. failure to include in the record on appeal in

Cause No. 73-CR-648 transcriptions of hearings relating

to Cause No. 72-1141 was at most harmless error. See,

Chapman v. California, 386 U.S. 15. 87 S.Ct. 824

(1967). Moreover, petitioner is entitled only toa “record

of sufficient completeness” to permit full and proper

consideration of his claim Draper v. Washington, 373

U.S. 487. 499, 83 S.Ct. 774, 781 (1963). There is no

allegation that peitioner did not have such a record in

Cause No. 73-CR-648.

Finally, Wiggins claims he was denied the right to pro-

secute his appeal without state appointed lawyers. In-

itially it is noted that Wiggins, on November 20, 1973,

requested counsel to be appointed to represent him on

appeal (Tr. 800). Secondly, petitioner in spite of the fact

counsel was appointed and filed an appellate brief, was

allowed to file one himself. Petitioner's brief cited

twenty-one grounds of error and is 150 pages long. Fur-

thermore. if there was any question whether petitioner

had his say on appeal it was resolved in the opinon of the

Court of Criminal Appeals, when the Court stated, ‘‘(wje

have reviewed appellant's pro se brief and find that con-

tentions urged therein are totally without merit or have

been asserted in the brief filed by his court-appointed

counsel on appeal.’ Wiggins v. State, 520 S.W.2d 780,

782 (Tex.Crim.App.1975).

RECOMMENDATIONS

(1) Respondents’ answer and motion to dismiss

should not be considered in reaching a determination on

petitioner's application for writ of habeas corpus.

(2) Petitioner's application for writ of habeas corpus

should be DENIED.

C-Y

The Clerk shall serve a copy hereof upon all parties by

mailing such copy by Certified Mail, Return Receipt Re-

quested, to all attorneys of record and to Petitioner.

Any party may serve and file written objections to such

findings and recommendations within ten (10) days after

being served.

SIGNED this 18th day of December, 1979.

s/ Robert B,. O'Connor

‘ROBERT B. O'CONNOR

United States Magistrate

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