Terrence M. McClain v. Secretary, Department of Corrections

T
       USCA11 Case: 20-11209     Date Filed: 05/13/2021     Page: 1 of 11



                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 20-11209
                        Non-Argument Calendar
                      ________________________

                D.C. Docket No. 6:18-cv-01432-GKS-EJK



TERENCE M. MCCLAIN,

                                                            Petitioner-Appellant,

                                  versus

SECRETARY, DEPARTMENT OF CORRECTIONS,
ATTORNEY GENERAL, STATE OF FLORIDA,

                                                          Respondents-Appellees.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                               (May 13, 2021)



Before WILSON, ROSENBAUM, and BLACK, Circuit Judges.

PER CURIAM:
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       Terence McClain, through counsel, appeals the district court’s denial of his

28 U.S.C. § 2254 petition, in which he argued his Sixth Amendment right to

counsel was violated when he was not given a second hearing, pursuant to Faretta

v. California, 

422 U.S. 806

(1975), right before proceeding to trial. The district

court found that part of this argument was unexhausted in state court, and as to the

part that was exhausted, the Florida Fifth District Court of Appeal (DCA) did not

unreasonably apply U.S. Supreme Court precedent when it denied McClain’s

claim. We granted a certificate of appealability (COA) on two questions: (1) did

McClain procedurally default his claim that he was entitled to a second, trial-

phase Faretta hearing; and (2) if not, were his Sixth Amendment rights violated by

the state court’s failure to hold a second Faretta hearing. After review, we affirm

the district court.

                                I. BACKGROUND

       A jury found McClain guilty after an initial trial, where he appears to have

been represented by counsel. After an appeal, the DCA found the trial court had

given faulty jury instructions and remanded for a new trial. Prior to the new trial,

the public defender representing McClain filed a motion to withdraw as counsel,

which was granted. At a Faretta hearing one month prior to the start of the second

trial, McClain asked the court to allow him to represent himself. Following a two-

day inquiry, the court granted McClain’s request and appointed standby counsel.


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      The trial court did not hold a new Faretta hearing right before trial.

McClain then represented himself at trial, often using the standby counsel provided

by the court. However, during a break after the State’s first witness, the court very

strongly suggested McClain use a lawyer and not try to represent himself. The

reason for the court’s suggestion was because McClain was having trouble

understanding he should send his own subpoenas to make sure the witnesses who

he wanted to question would actually appear at trial, instead of relying on the State

to subpoena all of the witnesses on his witness list. The court wanted him to know

that unexpected things always come up at trial, and a lawyer is better equipped to

handle them. McClain stated he understood and then continued to represent

himself.

      At this trial, McClain’s theory of defense was third-party liability, which

was a change from his first trial, where his theory was self-defense. During the

trial, the State had to serve “material witness arrest warrants” on two reluctant

witnesses, one of whom turned out to be the only witness who testified that

McClain was the shooter. Additionally, McClain’s case involved DNA connecting

him to the gun used in the incident, including expert testimony on the subject. The

jury subsequently found McClain guilty of attempted first-degree murder,

attempted voluntary manslaughter, and aggravated assault.




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      During McClain’s direct appeal to the DCA, the Seventh Judicial Circuit

Public Defender’s Office (PDO) filed a brief in accordance with Anders v.

California, 

386 U.S. 738

(1967). The brief raised one potential issue: “[w]hether

the trial court committed reversible error by failing to renew the offer of assistance

of counsel at the start of trial and later at the sentencing hearing.” The PDO argued

the trial court’s failure to conduct a Faretta hearing at a critical stage of the

criminal proceedings is reversible error under the Florida Rules of Criminal

Procedure and asked the DCA to decide whether the trial court erred by not re-

offering counsel at the time of trial, which was one month after the initial waiver.

The PDO cited Faretta three times in the brief as follows:

      A trial court’s failure to conduct a Faretta hearing at a critical stage of
      the criminal proceedings constitutes per se reversible error. See
      Tennis v. State, 

997 So. 2d 375

, 379 (Fla. 2008); Wilson v. State, 

947
So. 2d 1225

, 1226-27 (Fla. 1st DCA 2007). While a full inquiry
      pursuant to Faretta v. California, 

422 U.S. 806

(1975) need not be
      conducted at every stage of criminal proceedings, once counsel has
      been waived under Faretta, the offer of assistance of counsel must be
      renewed by the court at each critical stage of the proceedings. See
      Segal v. State, 

920 So. 2d 1279

(Fla. 4th DCA 2006); Hardy v. State,
      

655 So. 2d 1245

(Fla. 5th DCA 1995).

      The PDO noted, however, that Florida precedent held a four-month gap

between the waiver and trial did not trigger the need for a new waiver.

Additionally, Florida precedent held the trial court did not need to renew the offer

for counsel when there was standby counsel available, as there was in McClain’s

case. The PDO also noted McClain used his standby counsel, and the trial court
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gave an informal suggestion that he not represent himself. In a per curiam

decision, the DCA affirmed McClain’s convictions, finding no reversible error

after examining the record.

      McClain then filed a motion for post-conviction relief in Florida state court,

in which he claimed actual innocence and requested DNA testing. The motion was

denied. McClain appealed to the DCA, which affirmed.

      After reviewing the state court record, the federal district court issued an

order denying McClain’s § 2254 petition. The court found McClain had not

argued on direct appeal to the DCA that there had been a drastic change of

circumstances requiring a new waiver of counsel, and therefore, that particular

argument was unexhausted. The district court further found that McClain had

shown neither cause and prejudice, nor actual innocence, so this argument was

procedurally barred.

      The district court then ruled on McClain’s argument the trial court had

violated his right to counsel by failing to offer him counsel right before the start of

trial, or before sentencing, because these were new stages of his proceedings. It

found the DCA’s denial of that claim was not contrary to, or an unreasonable

application of, clearly established Supreme Court precedent because there was no

Supreme Court precedent requiring a new Faretta hearing in similar situations.

The district court denied a COA.


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      McClain then filed a notice of appeal. This Court granted a COA on two

questions: (1) did McClain procedurally default his claim that he was entitled to a

second, trial-phase Faretta hearing, (2) if not, were his Sixth Amendment rights

violated by the state court’s failure to hold a second Faretta hearing.

                                  II. DISCUSSION

A. Procedural Default

      Whether a petitioner has procedurally defaulted a claim is a mixed question

of law and fact that we review de novo. Judd v. Haley, 

250 F.3d 1308

, 1313 (11th

Cir. 2001). Before bringing a § 2254 action in federal court, the petitioner must

exhaust all state court remedies that are available for challenging his conviction.

28 U.S.C. § 2254(b), (c). To exhaust state remedies, the petitioner must fairly

present every issue raised in his federal petition to the state’s highest court, either

on direct appeal or on collateral review. Castille v. Peoples, 

489 U.S. 346

, 351

(1989). The state petition must make the state court aware the claims asserted do,

in fact, raise federal constitutional issues. Snowden v. Singletary, 

135 F.3d 732

,

735 (11th Cir. 1998).

      McClain presents two distinct arguments as to why his Sixth Amendment

right to counsel was violated: (1) because there was a drastic change in

circumstances at trial, such that the waiver a month earlier was ineffectual; and




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(2) because the trial was a new stage in the proceedings, such that the waiver a

month earlier was no longer valid.

      1. Change in Circumstances

      The district court did not err in concluding that McClain did not exhaust his

argument about a change in circumstances. In his appeal, McClain contends the

fact his Anders brief mentioned, in its fact section, the complex evidence presented

at trial, combined with a request the DCA look at the record when determining if

he should have been offered new counsel at trial, was enough to give the DCA

notice of his changed circumstances argument. However, a review of the Anders

brief shows that, while it laid out all of the evidence against him, it did not mention

that this evidence was any more or less complex than it was when McClain gave

his initial waiver of counsel.

      More importantly, the brief never made the link between the increased

complexity at trial and a Sixth Amendment right to a second Faretta hearing.

Whether the Sixth Amendment requires another Faretta hearing because of a

month-long delay, which was his argument to the DCA, is a different question than

if increased complexity at trial negated a previously valid waiver of counsel, such

that the waiver must be renewed. As such, McClain’s complexity argument has

never been before the state court and, therefore is unexhausted. Thus, McClain is

procedurally barred from pursuing the complexity argument as he has not


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demonstrated an exception to excuse this default. See Lucas v. Sec’y, Dep’t of

Corr., 

682 F.3d 1342

, 1353 (11th Cir. 2012) (explaining a petitioner who fails to

exhaust his claim in state court is procedurally barred from pursuing that claim on

habeas review in federal court unless he shows either cause for, and actual

prejudice from the default, or a fundamental miscarriage of justice from applying

the default).

      2. New Stage of Proceedings

      McClain’s Anders brief presented the argument that his right to have another

opportunity to waive counsel was violated, and he cited Faretta for this argument.

While we agree that McClain’s arguments to the DCA were mainly based on

Florida law as he primarily cited to Florida cases in his Anders brief, McClain’s

brief did cite Faretta in arguing that the trial court should have held an additional

hearing before trial. We think that mentioning Faretta in this context was enough

to give notice to the DCA that McClain was raising a federal constitutional claim.

Thus, we conclude McClain exhausted his argument that his Sixth Amendment

rights were violated because a new stage in the proceedings required a new waiver.

B. Sixth Amendment Rights

      Under § 2254(d), federal courts are precluded from granting habeas relief on

claims that were previously adjudicated on the merits in state court, unless the

adjudication “resulted in a decision that was contrary to, or involved an


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         USCA11 Case: 20-11209        Date Filed: 05/13/2021     Page: 9 of 11



unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d). A state court’s

summary and unexplained rejection of a constitutional issue qualifies as an

adjudication on the merits that is entitled to deference. Harrington v. Richter, 

562

U.S. 86

, 98-100 (2011).

      The right to self-representation is a constitutional right that is closely tied to

the right to representation by counsel. See United States v. Garey, 

540 F.3d 1253

,

1262-63 (11th Cir. 2008) (en banc). In Faretta, the Supreme Court concluded that

“[t]he Sixth Amendment does not provide merely that a defense shall be made for

the accused; it grants to the accused personally the right to make his 

defense.” 422

U.S. at 819

. The Court further stated, however, that, because a defendant loses

many of the benefits associated with the right to counsel when he represents

himself, he “must knowingly and intelligently forgo those relinquished benefits.”

Id. at 835

(quotation marks omitted). Specifically, a defendant “should be made

aware of the dangers and disadvantages of self-representation, so that the record

will establish that he knows what he is doing and his choice is made with eyes

open.”

Id. (quotation marks omitted).

      The Supreme Court has held the formal procedures required to waive

counsel depend on the stage of the trial. Patterson v. Illinois, 

487 U.S. 285

, 298-99

(1988). The Court “defined the scope of the right to counsel by a pragmatic


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assessment of the usefulness of counsel to the accused at the particular proceeding,

and the dangers to the accused of proceeding without counsel.”

Id. at 298.

The

Court held the procedures range from none, for a post-indictment photographic

display identification, to a full Faretta hearing, for a defendant to waive counsel

for a criminal trial.

Id.

The district court

did not err in concluding the DCA’s decision on this issue

was not contrary to, or an unreasonable application of, clearly established Supreme

Court precedent. There is no clearly established Supreme Court law on when the

Sixth Amendment requires an additional waiver of counsel, just that there are times

when it may be necessary. Patterson only speaks to the type of waiver necessary

depending on the stage, but it does not clearly hold there needs to be a new waiver

at each stage. See

id. Even if there

were such a rule, however, it was not

unreasonable for the DCA to decide that a waiver of counsel one month before

trial, at a full Faretta hearing, which is the procedure required by Patterson for a

waiver of counsel at trial, was sufficient for the trial stage of the proceedings.

                                 III. CONCLUSION

       McClain procedurally defaulted any claim that his Sixth Amendment right to

counsel was violated because there was a drastic change in circumstances at trial,

such that the waiver a month earlier was ineffectual. Additionally, as to McClain’s

claim that a second Faretta hearing was required because the trial was a new stage


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in the proceedings, the district court did not err in concluding the DCA’s decision

was not contrary to or an unreasonable application of Supreme Court precedent.

      AFFIRMED.




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