Ivey v. Myers, Petitioner-appellant, v. James A. Collins, Director, Texas Department of Criminaljustice, Institutional Division, Respondent-appellee, 8 F.3d 249 (5th Cir. 1993)

In this habeas corpus case, petitioner Ivey V. Myers ("Myers") alleges that he is being confined in violation of his federal constitutional rights. In particular, Myers contends that he has been denied his right to self-representation on appeal, that he received ineffective assistance of counsel, that his due process rights were violated, and that there was insufficient evidence to support his conviction. The district court granted summary judgment for the State dismissing all of Myers' claims. We reverse.

On Easter Sunday, 1986, Myers drove up next to Samuel Ybarra on a narrow street, robbed Ybarra at gunpoint and drove off. While Myers was driving off, Ybarra was able to get the license number of the vehicle. With this information, the police were able to trace the vehicle to Myers' mother. Police then showed Ybarra a picture line-up and Ybarra identified Myers as the man who had robbed him.

Myers retained counsel to assist him at trial, but he also wished to actively participate in his own defense.¹  Accordingly, at the beginning of the trial, Myers filed a motion seeking to be appointed co-counsel. The court denied this motion, though, and the trial proceeded with Myers' retained counsel presenting Myers' defense. That defense was unsuccessful. The jury convicted Myers of aggravated robbery and the judge sentenced him to twenty-five years' imprisonment.

At the sentencing hearing, Myers served his pro se Motion for New Trial and Notice of Appeal. Myers also requested that he be allowed to represent himself on appeal.²  The court complied with this request.

Nevertheless, Myers did not represent himself on appeal.³  His appellate brief was instead filed by appointed standby counsel. The Fourteenth Court of Appeals affirmed the judgment of the trial court, and Myers' petition for discretionary review, also filed by appointed counsel, was denied by the Texas Court of Criminal Appeals.

Myers then initiated habeas corpus proceedings. His first federal petition for writ of habeas corpus was denied by the federal district court for failure to exhaust state remedies. A panel of this Court vacated that order, however, and remanded the case for consideration of the merits. On remand, the district court ordered the State to file a motion for summary judgment as to the merits of Myers' claims. In response, the State filed a motion to dismiss contending that sufficient evidence supported Myers' conviction, that Myers' due process rights were not violated, that Myers' counsel was not constitutionally ineffective and that there was no error in any alleged denial of Myers' right to represent himself. The court treated this motion as a summary judgment and granted it thereby dismissing all of Myers' claims. Myers appeals.

Among other complaints, Myers contends that he has been denied his federal constitutional right to represent himself on appeal. This Court has never squarely addressed whether or not a right of self-representation on appeal flows from the Federal Constitution to the benefit of state prisoners. Thus, as an initial matter, we must determine if such a right exists under the Constitution.

In a criminal trial, a defendant has a constitutional right to the assistance of counsel to aid in the presentation of his defense. Gideon v. Wainwright, 372 U.S. 335, 345, 83 S. Ct. 792, 797, 9 L. Ed. 2d 799 (1963). See also Powell v. Alabama, 287 U.S. 45, 53 S. Ct. 55, 77 L. Ed. 158 (1932). Implicit in this affirmative right to counsel at trial is its converse--the right to refuse counsel and represent yourself. McKaskle v. Wiggins, 465 U.S. 168, 174, 104 S. Ct. 944, 949, 79 L. Ed. 2d 122 (1984). This right of self-representation is now firmly established in a criminal trial. Faretta v. California, 422 U.S. 806, 819, 95 S. Ct. 2525, 2533, 45 L. Ed. 2d 562 (1975).

There is also a right to counsel for indigents in their first appeal as a matter of right.⁴  Douglas v. California, 372 U.S. 353, 358, 83 S. Ct. 814, 817, 9 L. Ed. 2d 811 (1963). However, it is not clear whether, or to what extent, this appellate right of counsel implies its converse--a right of self-representation on appeal. This is because in Price v. Johnston, 334 U.S. 266, 68 S. Ct. 1049, 92 L. Ed. 1356 (1948), the Supreme Court held that an appellate court has discretionary power over whether or not to allow a defendant to present oral arguments pro se.⁵  Specifically, the Price Court stated that

a prisoner has no absolute right to argue his own appeal or even to be present at the proceedings in an appellate court. The absence of that right is in sharp contrast to his constitutional prerogative of being present in person at each significant stage of a felony prosecution ...

Id. 334 U.S. at 285, 68 S. Ct. at 1060 (citations and footnote omitted). This holding belies any argument that a defendant has a right to personally present oral arguments on appeal. Moreover, the above-quoted language from Price was quoted with approval in Faretta,⁶  the Supreme Court case that announced the right to self-representation at trial, thus undermining any argument that Faretta restricted Price.

The Eighth Circuit, however, has noted a distinction between the right to present oral arguments and the right to present a brief to an appellate court. Chamberlain v. Ericksen, 744 F.2d 628, 630 (8th Cir. 1984), cert. denied, 470 U.S. 1008, 105 S. Ct. 1368, 84 L. Ed. 2d 387 (1985). As to presenting oral arguments, the Chamberlain court found that the above-quoted language from Price foreclosed any right of a defendant to act pro se. But, this did not foreclose a right of a defendant to present a pro se brief. In light of this, the court argued that, whether at trial or on appeal, a defendant should not be required to have counsel forced upon him or her. Id. Thus, the Chamberlain court found that a criminal defendant does have a right under the Constitution to present pro se briefs or motions on appeal. Id.

The reasoning of the Eighth Circuit in Chamberlain is persuasive. Whether at trial or appeal, a defendant is not required to accept unwanted counsel. Accordingly, this Court agrees with the Eighth Circuit in Chamberlain and we hold that a state criminal defendant has a constitutional right to present pro se briefs and motions on appeal.⁷ 

A summary judgment is only appropriate if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Valles v. Lynaugh, 835 F.2d 126 (5th Cir. 1988). Moreover, in an appeal of a summary judgment, a reviewing court must resolve any factual uncertainties in a light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

In the instant case, the State argues that Myers abandoned his right to present his appellate brief pro se.⁸  This occurred, the State contends, when Myers acquiesced in standby counsel's participation in his appeal.

Whether or not Myers abandoned this right was a material question of fact. Viewing the record in a light most favorable to Myers, we find that this factual question was not resolved.⁹  Thus, the district court's granting of the State's motion for summary judgment in the instant case was inappropriate.

This Court REVERSES the granting of the State's motion for summary judgment and REMANDS this case to the district court for an evidentiary hearing to determine whether or not Myers abandoned his right to file a pro se brief on appeal. In light of this disposition, the Court refrains from addressing Myers' other claims.