United States v. Rodriguez, No. 15-50239 (5th Cir. 2016)
Annotate this Case
Justia Opinion Summary
Want to stay in the know about new opinions from the Fifth Circuit US Court of Appeals?
Sign up for free summaries delivered directly to your inbox. Learn More ›
You already receive new opinion summaries from Fifth Circuit US Court of Appeals. Did you know we offer summary newsletters for even more practice areas and jurisdictions? Explore them here.
Defendant was convicted of conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. Defendant filed a pro se 28 U.S.C. 2255 motion, arguing that he did not intelligently waive his right to appellate counsel and seeking a new direct appeal. Adopting the recommendation of the magistrate judge, the district court granted the motion. The court vacated the district court's section 2255 judgment and dismissed this second direct appeal. The court concluded that a criminal defendant is not entitled to two appeals. In this case, the magistrate judge’s report and recommendation failed to identify any jurisdiction or authority for its review and abrogation of the court's preceding order, which found that defendant “clearly and unequivocally waived his right to appellate counsel.” Neither the district court nor defendant point to any authority that would authorize the district court to grant his motion based on an asserted error in the court's prior determination that defendant could proceed pro se on appeal. Therefore, the court dismissed the appeal
Download PDF
Case: 15-50239 Document: 00513492573 Page: 1 Date Filed: 05/04/2016 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 15-50239 United States Court of Appeals Fifth Circuit FILED UNITED STATES OF AMERICA, Plaintiff - Appellee May 4, 2016 Lyle W. Cayce Clerk v. DAVID RODRIGUEZ, Defendant - Appellant Appeals from the United States District Court for the Western District of Texas Before BARKSDALE, CLEMENT, and HAYNES, Circuit Judges. EDITH BROWN CLEMENT, Circuit Judge: After a jury trial, David Rodriguez was convicted of conspiracy to manufacture methamphetamine and conspiracy to possess and distribute pseudoephedrine. He appealed. Although he was initially represented by counsel, he filed a request to proceed pro se, which was granted by this court. On direct appeal, we affirmed the district court’s judgment. See United States v. Rodriguez, 521 F. App’x 313 (5th Cir.), cert. denied, 134 S. Ct. 126 (2013). Rodriguez subsequently filed a pro se § 2255 motion, arguing that he did not intelligently waive his right to appellate counsel and seeking a new direct appeal. Adopting the recommendation of the magistrate judge, the district court granted the motion. The district court concluded that, despite Case: 15-50239 Document: 00513492573 Page: 2 Date Filed: 05/04/2016 No. 15-50239 Rodriguez’s unequivocal request to proceed pro se, he had not knowingly waived his right to counsel on appeal. The district court granted Rodriguez a new appeal. 1 We vacate the district court’s § 2255 judgment and dismiss this second direct appeal. A criminal defendant is not entitled to two appeals. United States v. Arlt, 567 F.2d 1295, 1297 (5th Cir. 1978) (per curiam); see United States v. McCollom, 664 F.2d 56, 59 (5th Cir. 1981) (“Section 2255 may not be used to secure a second direct appeal.”). 2 In granting Rodriguez’s § 2255 motion and providing him a new appeal, the district court concluded that this court erred in allowing him to proceed pro se. 3 But the magistrate judge’s report and recommendation, adopted by the district court, failed to identify any jurisdiction or authority for its review and abrogation of our preceding order, which found that Rodriguez “clearly and unequivocally waived his right to appellate counsel.” 4 Notably, on this second appeal, Rodriguez has filed numerous pro se letters raising issues for the court’s consideration. There is, however, no constitutional right to hybrid representation on appeal, and we do not consider his pro se arguments. Myers v. Johnson, 76 F.3d 1330, 1335 (5th Cir. 1996). 2 This case is unlike Mack v. Smith, 659 F.2d 23 (5th Cir. 1981), which granted a defendant leave to file an out-of-time appeal. In Mack, we dismissed the initial appeal as untimely, due to the ineffectiveness of counsel, and without a ruling on the merits. Id. at 25; see United States v. West, 240 U.S. 456, 459 (5th Cir. 2001). Here, we decided the question at issue—the propriety of self-representation on appeal—and the district court is not free to reverse that decision under § 2255. 3 The district court found that we “must hold a Faretta hearing” to determine whether a defendant’s waiver is knowing and voluntary. Although Faretta hearings are required before waiver of counsel at trial, “[t]he Supreme Court has never held that waivers of counsel at any stage of the proceedings other than trial require such a give-and-take between the accused and someone trying to educate him about counsel’s benefits.” Speights v. Frank, 361 F.3d 962, 964–65 (7th Cir. 2004) (“Just as a simple consent to proceed without counsel suffices during custodial interrogation, so a straightforward assent is enough on appeal.”); see JeanPaul v. Douma, 809 F.3d 354, 359 (7th Cir. 2015) (explaining that waiver of counsel on appeal requires only “straightforward assent”). 4 In his first direct appeal, Rodriguez filed, with this court, a lengthy motion to dismiss his appointed counsel and proceed pro se. His appointed counsel also filed a motion to be 1 2 Case: 15-50239 Document: 00513492573 Page: 3 Date Filed: 05/04/2016 No. 15-50239 An error in the reasoning of this court can only be corrected by application to this court in the form of a motion to recall the mandate or a petition for rehearing, or by writ of certiorari to the Supreme Court. See Goodwin v. Johnson, 224 F.3d 450, 459 (5th Cir. 2000) (“An individual seeking to avoid the effects of an appellate court’s prior decision may bring to that court a motion to recall its mandate.”); United States v. Hughes, 41 F. App’x 276, 279 (10th Cir. 2002) (finding that the district court correctly ruled that righting alleged errors in the appellate court’s opinion on direct appeal “is not the province of a § 2255 motion” and explaining that “such matters must be pursued via a motion for rehearing and/or via a petition for certiorari to the Supreme Court”). In his § 2255 motion, Rodriguez claimed that his waiver of appellate counsel was neither knowing nor voluntary. But we “decided this issue . . . on direct appeal when his conviction was affirmed. It may not be resurrected and urged anew.” McCollom, 664 F.2d at 59; see United States v. Goudeau, 512 F. App’x 390, 393 (5th Cir. 2013) (“In order for the law-of-thecase doctrine to apply, the issue need not have been explicitly decided; the doctrine also applies to those issues decided by necessary implication.” (internal quotation marks omitted)). Neither the district court nor Rodriguez point to any authority that would authorize the district court to grant his motion based on an asserted error in our prior determination that Rodriguez could proceed pro se on appeal. Because we hold that the district court improperly granted Rodriguez’s § 2255 motion, we VACATE the judgment and DISMISS this appeal. dismissed and noted that Rodriguez had made a “clear and informed decision to proceed pro se.” 3
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
