David Lefevre v. Burl Cain, Warden, Louisiana State Penitentiary

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 08-31233
DAVID LEFEVRE,
Petitioner–Appellee,
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,
Respondent–Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before GARWOOD, OWEN, and SOUTHWICK, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
The State appeals a district court judgment granting David Lefevre’s
petition for writ of habeas corpus. The district court found that Lefevre’s right
to self-representation was violated because the leg shackles the court required
him to wear during trial prevented him from attending bench conferences and
moving freely about the courtroom during trial. The State argues that the
shackles did not prevent Lefevre from preserving actual control of his case or
destroy the jury’s perception that Lefevre was representing himself, and
therefore Lefevre’s shackling did not violate his right to self-representation. We
hold that Lefevre’s shackling did not violate his right to self-representation,
United States Court of Appeals
Fifth Circuit
F I L E D
October 26, 2009
Charles R. Fulbruge III
Clerk

-- 1 of 15 --

No. 08-31233
2
reverse the district court’s judgment, and deny Lefevre’s petition for writ of
habeas corpus.
I
The District Attorney of Jefferson Parish, Louisiana, charged Lefevre with
armed robbery, second-degree kidnapping, and aggravated burglary. Lefevre
chose to represent himself at trial. The district judge allowed him to do so,
provided Lefevre accepted his previously appointed lawyer, John E. Benz, as
standby counsel. On the morning of trial, Lefevre moved to have his leg shackles
removed. The trial court denied Lefevre’s motion, ordering that his handcuffs
be removed but not his leg shackles. While the court did not offer any reason
why it refused to remove Lefevre’s leg shackles, the judge attested in a later
affidavit that “Lefevre was maintained in leg shackles during his trial due to his
multiple prior attempts to escape from custody,” and that he had been advised
by “jail transporting personnel that Lefevre was going to try and escape from the
courtroom.” Lefevre does not contest in this appeal the trial court’s decision to
shackle him.
After denying Lefevre’s motion to remove his leg shackles, the trial court
proceeded to select the jury. Upon Lefevre’s request, Benz handled jury
selection. The prosecutor and Lefevre then gave their opening statements, and
the prosecutor examined, and Lefevre cross-examined, the first two witnesses.
Lefevre performed these tasks while sitting at or standing behind counsel table
so that jurors could not observe that he was wearing leg shackles.
During the State’s examination of the second witness at trial, Lefevre
objected because the witness was providing rambling answers beyond the scope
of the prosecutor’s questions. Benz requested to approach the bench, and Benz
and one of the prosecutors proceeded to the bench to discuss the matter with the
trial judge while Lefevre remained at counsel table. Benz asked the court to
direct the witness to respond to the questions, and the court did so.

-- 2 of 15 --

No. 08-31233
State v. Lefeure, 831 So. 2d 398, 402 (La. Ct. App. 2002); State ex rel. Lefevre v. State,1
855 So. 2d 291 (La. 2003).
3
Following opening remarks and the examination of the first two witnesses,
the trial court, outside of the presence of the jury, recommenced taking
testimony in connection with a pending motion to suppress. After denying the
motion, the judge asked Lefevre if he wanted to reconsider representing himself.
Lefevre replied that he did not want to give up his right to speak totally, and he
inquired whether Benz could “play a bigger role.” The court responded, “[T]hat’s
between you and Mr. Benz,” and Benz stated, “I can only advise him.”
The jury returned to the courtroom, and the State called its third witness.
During her testimony, the witness made an in-court identification of Lefevre.
Lefevre objected, and Benz requested to approach the bench. Following Benz’s
argument and the prosecutor’s response, the court denied Lefevre’s objection.
During the testimony of a State witness on the second day of trial, Lefevre
objected. Benz requested a bench conference and stated that the objection was
based on the fact that the witness was about to testify that Lefevre had
committed the crime of simple escape. The court overruled the objection.
The trial court convicted Lefevre of all counts, and the judge imposed a
sentence in excess of 200 years’ imprisonment. After appeal to the Louisiana
Fifth Circuit and the Louisiana Supreme Court, Lefevre’s sentence was reduced
to 99 years.1
Lefevre then filed an application for post-conviction relief in state court.
He raised the same claims he later raised in his § 2254 petition: (1) ineffective
assistance of appellate counsel; (2) invalid waiver of the right to counsel under
the Sixth and Fourteenth Amendments; (3) denial of the right to counsel at
critical stages of trial when Lefevre was excluded from bench conferences; (4)
denial of the right to self-representation by his exclusion from bench conferences;
(5) denial of the due process right to be present at all critical stages of trial; and

-- 3 of 15 --

No. 08-31233
4
(6) denial of due process by being compelled to wear shackles when representing
himself. The state district court rejected Lefevre’s first and sixth claims on the
merits and denied claims 2 through 5 as successive under article 930.4(E) of the
Louisiana Code of Criminal Procedure for failure to raise them in a previous
post-conviction application. Lefevre, however, had not filed a previous post-
conviction application. The state appellate court and the Louisiana Supreme
Court denied review. The Louisiana Supreme Court’s denial ended the state
post-conviction process.
Lefevre then filed a § 2254 petition in federal court, raising the same
claims as his state application for post-conviction relief. The magistrate judge
appointed counsel to represent Lefevre and held an evidentiary hearing. Lefevre
argued that the shackles prevented him from participating in bench conferences
because he could not approach the bench without exposing them to the jury, and
he did not think he would be able to step up on the platform on which the bench
was located with his ankles restrained. Three jurors testified at the evidentiary
hearing that they noticed that Lefevre never moved from behind the table while
the prosecutors moved at will throughout the courtroom. One juror testified that
she thought Lefevre was not allowed to move because he was a prisoner and
might try to escape. Another juror noticed that the lawyers approached the
bench, but Lefevre did not go with them. She found this unusual because “that’s
what you normally see in a courtroom, movement” by the attorneys. “And in his
case, he was representing himself. If he wanted to move around, I would have
expected him to move around.”
Following the evidentiary hearing and briefing, the magistrate judge found
a violation of Lefevre’s Sixth Amendment right to self-representation and
recommended the grant of habeas relief. The district court adopted the
magistrate’s Report and Recommendation and ordered the State to retry Lefevre
or release him within 120 days. The State appeals from this judgment. This

-- 4 of 15 --

No. 08-31233
Ramirez-Molina v. Ziglar, 436 F.3d 508, 512-13 (5th Cir. 2006).2
Geiger v. Cain, 540 F.3d 303, 307 (5th Cir. 2008).3
28 U.S.C. § 2254(d).4
Powell v. Quarterman, 536 F.3d 325, 343 (5th Cir. 2008).5
See La. Code Crim. Proc. Ann. art. 930.4(E)-(F) (providing that “[a] successive6
application may be dismissed if it raises a new or different claim that was inexcusably omitted
from a prior application,” and the court will only consider the merits of the claim if it finds
5
court has “undeniable appellate jurisdiction over the government’s appeal of the
grant of habeas relief.”2
II
In a habeas appeal, we review the district court’s findings of fact for clear
error and review its conclusions of law de novo, applying the same standard of
review to the state court’s decision as the district court. Under the3
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a federal court
must defer to a state court’s decision with respect to any claim that was
adjudicated on the merits unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.4
However, the deferential AEDPA standard does not apply when the petitioner
fairly presents his claim to the state court, the state court does not adjudicate
the claim on the merits, and the claim is not procedurally defaulted; the federal
court then conducts a de novo review. In this case, the district court determined5
that the state courts did not adjudicate Lefevre’s claims on the merits because
the state court denied Lefevre’s claims regarding a violation of his right to self-
representation as a successive petition. The court also concluded that there was6

-- 5 of 15 --

No. 08-31233
that the failure to include the claim in the prior application was excusable).
Faretta v. California, 422 U.S. 806, 836 (1975). The magistrate judge found that7
Lefevre validly waived his right to counsel, and the issue is not raised by this appeal.
McKaskle v. Wiggins, 465 U.S. 168, 174 (1984).8
Id. at 170.9
Id. at 178.10
6
not an adequate procedural bar because Lefevre had not filed a prior application
and “‘similar claims,’ i.e., claims which are the subject matter of a petitioner’s
first post-conviction application, are not regularly deemed to be barred as
successive.” Because the state court did not adjudicate Lefevre’s claim on the
merits, and the claim was not properly dismissed pursuant to an adequate
procedural bar, the district court conducted a de novo review of Lefevre’s claim
that his right to self-representation had been violated.
III
As established in Faretta v. California, a defendant has a Sixth
Amendment right to self-representation. A “pro se defendant must be allowed7
to control the organization and content of his own defense, to make motions, to
argue points of law, to participate in voir dire, to question witnesses, and to
address the court and the jury at appropriate points in the trial.” However, “a8
trial court may appoint ‘standby counsel’ to assist the pro se defendant in his
defense.” In McKaskle v. Wiggins, the Court determined that there were two9
limits on the participation of standby counsel: “First, the pro se defendant is
entitled to preserve actual control over the case he chooses to present to the
jury. . . . Second, participation by standby counsel without the defendant’s
consent should not be allowed to destroy the jury’s perception that the defendant
is representing himself.” Because “the right of self-representation is a right10
that when exercised usually increases the likelihood of a trial outcome

-- 6 of 15 --

No. 08-31233
Id. at 177 n.8.11
Id. at 183.12
Id. at 178.13
7
unfavorable to the defendant, its denial is not amenable to ‘harmless error’
analysis. The right is either respected or denied; its deprivation cannot be
harmless.” Lefevre argues that his Sixth Amendment right to self-11
representation was violated because (1) his shackling prevented his attendance
at bench conferences, and thereby denied him the right to preserve actual control
over his case, and (2) his shackling destroyed the jury’s perception that he was
representing himself by requiring him to remain behind counsel table while the
prosecutors were able to move freely about the courtroom.
IV
We first consider Lefevre’s argument that his shackling prevented his
attendance at bench conferences during his trial and thereby violated his right
to preserve actual control over the case he chose to present to the jury. A
defendant’s Faretta rights are not infringed when standby counsel assists the
defendant in routine issues of procedure or courtroom protocol because doing so
does not interfere with the defendant’s actual control of the case. However, “[i]f12
standby counsel’s participation over the defendant’s objection effectively allows
counsel to make or substantially interfere with any significant tactical decisions,
or to control the questioning of witnesses, or to speak instead of the defendant
on any matter of importance, the Faretta right is eroded.”13
The magistrate judge found that while the first bench conference
concerned “housekeeping” matters, the second and third bench conferences
concerned matters of importance. On appeal, the State does not contest that
these two conferences concerned matters of importance; instead, the State
argues that Lefevre acquiesced to Benz’s participation in the bench conferences

-- 7 of 15 --

No. 08-31233
533 F.3d 724, 746 (9th Cir. 2008) (en banc) (Kozinski, J., concurring).14
Id. at 731.15
Id. at 743-44.16
Id. at 745.17
8
and waived his right to self-representation during the conferences by failing to
object. Lefevre, however, argues that his shackling rendered his exclusion from
the bench conferences involuntary because he had a right to attend the bench
conferences as part of his right to self-representation, but he also had a due
process right to be tried without visible restraints, and he did not waive either
right. Lefevre contends that he is not arguing that standby counsel exceeded his
role, but that he was barred from playing his own role due to the judge’s order
that he remain shackled, and therefore whether he consented to Benz’s
participation on his behalf is “beside the point.”
In support of this argument, Lefevre relies on Judge Kozinski’s
concurrence in Frantz v. Hazey. In Frantz, standby counsel, and not the pro se14
defendant, participated in a chambers conference that was held in response to
a jury question during deliberations. The Ninth Circuit determined that the15
pro se defendant’s rights were violated if the defendant did not consent to his
exclusion from the conference, regardless of whether standby counsel accurately
portrayed the defendant’s position. The court remanded for an evidentiary16
hearing to determine, in part, whether the defendant was “accurately informed
of the purpose of the conference and given the opportunity to appear but declined
to do so.” In his concurrence, Judge Kozinski noted that the defendant was17
being held in custody elsewhere and was not in court at the time the jury
question arose, and therefore most likely did not have a choice about whether to
attend the conference because “if the judge does not order [the defendant] to

-- 8 of 15 --

No. 08-31233
Id. at 746 (Kozinski, J., concurring).18
Id. at 746-47.19
See Deck v. Missouri, 544 U.S. 622, 629 (2005) (“[T]he Fifth and Fourteenth20
Amendments prohibit the use of physical restraints visible to the jury absent a trial court
determination, in the exercise of its discretion, that they are justified by a state interest
specific to a particular trial. Such a determination may of course take into account the factors
that courts have traditionally relied on in gauging potential security problems and the risk of
escape at trial.”).
9
appear, the prisoner remains in his cell, no matter how badly he may want to go
before the judge.” Judge Kozinski continued,18
If [the defendant] was not allowed to attend the
conference and speak for himself, what else could he do
except speak through [standby counsel]? [The
defendant’s] decision to do so, rather than refuse to
provide any defense input whatsoever, can hardly be
construed as waiving his right under Faretta and
McKaskle to appear and speak for himself.19
Lefevre argues that the shackles prevented him from attending the bench
conferences and therefore, like the defendant in Frantz, he did not have a choice
of whether to participate. However, Frantz is distinguishable. In Frantz, the
chambers conference took place during jury deliberations while the defendant
was in custody elsewhere. The defendant may not have even known that the
conference was taking place, and, as he was not present, there was no way for
him to object to his exclusion. Here, Lefevre was present at the time the bench
conferences took place. While he had a right to be tried without visible
restraints, and while it may also be true that he was unable to step onto the20
bench platform because of the shackles, Lefevre knew that the bench conferences
were occurring without his participation, and he did have the opportunity to
object to Benz’s participation in the conferences in his stead. Because Lefevre
had the opportunity to object to his exclusion, his absence from the bench
conferences was not involuntary.

-- 9 of 15 --

No. 08-31233
McKaskle v. Wiggins, 465 U.S. 168, 182 (1984).21
Id. at 183.22
Id. at 178.23
10
As Lefevre’s shackling did not make his absence from the bench
conferences involuntary, we must then determine whether Lefevre waived his
right of self-representation at the bench conferences by acquiescing to Benz’s
participation in his place. The magistrate judge found that “there [was] no need
for this court to speculate as to whether Mr. Lefevre did or did not consent to
standby counsel participating, in his stead, in the two bench conferences in
issue” because Lefevre testified at the evidentiary hearing “that he did not
consent to standby counsel taking his place at the conferences.” However, a
defendant can waive his Faretta rights, either by expressly requesting standby
counsel’s participation on a matter or by acquiescing in certain types of
participation by counsel, even if the defendant insists that he is not waiving his
Faretta rights. In McKaskle, the Court noted that “[o]nce a pro se defendant21
invites or agrees to any substantial participation by counsel, subsequent
appearances by counsel must be presumed to be with the defendant’s
acquiescence, at least until the defendant expressly and unambiguously renews
his request that standby counsel be silenced.” McKaskle also requires that22
standby counsel’s participation be “over the defendant’s objection” in order to
erode the defendant’s Faretta rights.23
The magistrate judge found that there was no presumption that Lefevre,
in the absence of an objection, waived his Faretta right to participate in the
bench conferences in this situation, as Lefevre made opening and closing
arguments to the jury, cross-examined witnesses, put on his own defense by
examining a witness, and argued a motion outside of the presence of the jury.
In reaching this conclusion, the magistrate relied on both the Ninth Circuit’s

-- 10 of 15 --

No. 08-31233
United States v. McDermott, 64 F.3d 1448 (10th Cir. 1995).24
Frantz v. Hazey, 533 F.3d 724, 744 (9th Cir. 2008) (en banc).25
Id.26
Id. (noting that the defendant “was in ‘lock-up’ during the conference, so it [was]27
particularly unlikely that implied consent [could] be inferred from the failure to object”).
McDermott, 64 F.3d at 1453.28
Id. at 1451.29
11
decision in Frantz and the Tenth Circuit’s decision in United States v.
McDermott. However, key differences in those two decisions distinguish this24
case.
Both Frantz and McDermott held that a defendant had not waived his
right to self-representation despite standby counsel’s participation in
conferences. As discussed above, the conference in Frantz occurred during jury
deliberations, while the defendant was in custody elsewhere. The court25
determined the defendant’s failure to object to his exclusion from the conference
was not fatal to his claim because “[w]hen standby counsel is appointed only to
advise, the initial invocation of the right of self-representation is generally
sufficient to establish that any participation by standby counsel other than for
the routine matters mentioned in McKaskle is ‘over the defendant’s objection.’”26
The defendant had no opportunity to object and may not have had a choice in
whether to attend. In McDermott, the court determined that the defendant had27
not given up control of his defense as a result of standby counsel’s participation
in sidebar conferences from which the defendant had been involuntarily
excluded. However, the defendant’s involuntary exclusion from the conferences28
was because the court had ruled, over the defendant’s objection, that the
defendant would not be permitted to be present at bench conferences.29

-- 11 of 15 --

No. 08-31233
12
Lefevre was in a different position. While Lefevre objected to his shackling
and had a right to be tried without visible restraints, Lefevre never objected to
Benz’s participation in the bench conferences on his behalf, moved to approach
the bench himself, or requested to have the jury removed to argue an objection.
Unlike the trial court in McDermott, Lefevre’s trial court never ruled that
Lefevre could not participate in the bench conferences. Also, unlike the
defendant in Frantz, Lefevre was present in the courtroom during the bench
conferences and had an opportunity to object to his absence from the
conferences, either at the time of the conference or after the jury was removed
from the courtroom. Had Lefevre objected, the court might have accommodated
his request to participate in the bench conferences by removing the jury from the
courtroom and then allowing Lefevre to argue his objections.
In the absence of an objection, the trial court had no way of knowing that
Lefevre was unhappy with Benz’s participation in the bench conferences on his
behalf. After the first bench conference, outside of the presence of the jury, the
judge asked Lefevre if he wanted to reconsider representing himself. Lefevre
replied that he did not want to give up his right to speak totally, and he inquired
whether Benz could “play a bigger role.” While Lefevre did not waive his right
to self-representation during this conversation, he also did not indicate that he
was unhappy with Benz’s participation on his behalf, and in fact suggested that
he would like Benz to play a larger role.
Lefevre has not provided any explanation for his failure to object.
Therefore, for the reasons discussed above, we conclude that Lefevre acquiesced
to Benz’s participation in the bench conferences and thus waived his right to
self-representation at the conferences.
V
Lefevre also argues that his inability to move around the courtroom,
whether to attend bench conferences, to question a witness, or to present closing

-- 12 of 15 --

No. 08-31233
McKaskle v. Wiggins, 465 U.S. 168, 178 (1984).30
Id. at 186.31
13
argument, also violated his right to self-representation by undermining the
jury’s perception of him as his own lawyer. Lefevre maintains that the
accommodations other trial courts have made for pro se, shackled defendants
demonstrate that the burdens imposed on Lefevre were unnecessary.
Furthermore, Lefevre argues that he does not need to show that he was
prejudiced by his inability to move freely because the right of self-representation
is not subject to harmless error review.
In McKaskle, the Court held that “participation by standby counsel
without the defendant’s consent should not be allowed to destroy the jury’s
perception that the defendant is representing himself.” The McKaskle Court30
determined that the defendant was “allowed to appear before the jury in the
status of one defending himself” because the defendant “examined prospective
jurors on voir dire, cross-examined the prosecution’s witnesses, examined his
own witnesses, made an opening statement for the defense,” and “objected to the
prosecutor’s case at least as often as did [standby] counsel.” Like the defendant31
in McKaskle, Lefevre made the opening and closing arguments, cross-examined
witnesses, examined his own witness, and made objections to the government’s
questions. The magistrate distinguished Lefevre’s trial from that in McKaskle
because Lefevre was compelled to perform these tasks while behind the counsel
table, and the jury noticed that Lefevre remained behind the table while the
prosecutors moved freely. However, Lefevre’s inability to move around the
courtroom, without additional facts, does not prove that Lefevre’s shackling
destroyed the jury’s perception that he was representing himself.
Several cases have noted that the trial court can place restrictions on the
prosecutors’ movements during trial or make other accommodations to minimize

-- 13 of 15 --

No. 08-31233
See Frantz v. Hazey, 533 F.3d 724, 728 (9th Cir. 2008) (en banc) (stating that because32
the defendant was required to wear a leg brace and question witnesses from behind the
defense table to minimize the risk of prejudice from the jury seeing his shackles, the trial court
also required the prosecutor to examine witnesses and argue her case from behind counsel
table); United States v. Fields, 483 F.3d 313, 357 (5th Cir. 2007) (“[T]he court took into account
the special problems that physical restraints might pose under [the defendant’s] decision to
proceed pro se. It provided that both sides would remain seated before the jury. These steps
ensured that the jury would neither see the stun belt nor surmise that [the defendant] was
being treated differently from the prosecutors.”); Overton v. Mathes, 425 F.3d 518, 520 (8th
Cir. 2005) (noting that the trial judge “ordered that both [the pro se defendant] and prosecutor
would conduct the trial from counsel tables, and the jury would be excused when a sidebar
conference was needed, so as to not disadvantage [the defendant]”).
14
the risk of prejudice when a pro se defendant’s movements are restricted due to
shackling. However, no court has gone so far as to require such32
accommodations. Furthermore, Lefevre did not request that the trial court
make such accommodations in his case. Lefevre simply requested that his
shackles be removed. Lefevre never objected to the prosecutors’ ability to move
freely, and he never requested that the jury be removed while he argued his
objections or that the trial court use a different type of restraint, such as a stun
belt.
While the right to self-representation is not subject to harmless error
review, Lefevre still must demonstrate that his shackling destroyed the jury’s
perception that he was representing himself. Lefevre points out that each of the
three jurors who testified at the evidentiary hearing “noticed his immobility,”
and that one juror inferred from Lefevre’s immobility that he was a prisoner and
hence an escape risk. However, this does not demonstrate that the jury did not
perceive that Lefevre was representing himself. One juror’s testimony clearly
indicates that she was aware that Lefevre was representing himself: “And in his
case, he was representing himself. If he wanted to move around, I would have
expected him to move around.” Nothing in the jurors’ testimony indicates that
they thought Lefevre was not representing himself as a result of his inability to
move around the courtroom. Lefevre has presented no evidence that indicates

-- 14 of 15 --

No. 08-31233
15
that his inability to move freely around the courtroom destroyed the jury’s
perception that he was representing himself.
* * *
Therefore, for the reasons discussed above, we hold that Lefevre’s
shackling did not violate his right to self-representation. We REVERSE the
district court’s judgment and DENY Lefevre’s petition for writ of habeas corpus.

-- 15 of 15 --