Arnold v. Cockrell

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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m 01-40159
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JERMARR CARLOS ARNOLD,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL,
DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________
August 28, 2001
Before SMITH, BENAVIDES,
and DENNIS, Circuit Judges.
PER CURIAM:*
Jermarr Arnold was convicted of capital
murder and sentenced to death. He appeals
the denial of his federal petition for writ of
habeas corpus, arguing that he was deprived of
effective assistance of counsel because the
district court forced his attorneys to comply
with his instructions. We affirm.
I.
Before trial, Arnold complained to the
court that his appointed counsel did not allow
him to participate in determining defense stra-
tegy. He also asserted his intent to play an
active role in his trial, threatening to proceed
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be
published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R.
47.5.4.

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2
pro se if not allowed to participate in his de-
fense. During trial and over the objections of
his counsel, Arnold made several decisions af-
fecting his defense, including refusing to chal-
lenge peremptorily multiple jurors with law
enforcement backgrounds and refusing to al-
low counsel to call defense witnesses or either
to present any mitigating evidence during the
penalty phase or to argue against the death
penalty. During the sentencing phase, Arnold
told the jury that the death penalty was the
proper punishment in his case.
Arnold now contends, however, that he
was not competent to override counsel’s ad-
vice and therefore that the court’s decision to
allow him to do so deprived him of effective
assistance of counsel. We disagree.
II.
There is no dispute that Arnold attempted
to waive any ineffective assistance of counsel
claim. Not only did he request the court’s as-
sistance in enforcing his instructions to
counsel, he remarked after the trial that
I wish to say that I’m quite satisfied with
the decision made by the jury. I’m also
satisfied with theSSthe conduct of the
Court. I feel that all my rights have
been fully protected and recognized.
And I have been very adequately
representedSSand vigorously soSSby
mySSby my two court appointed
attorneys.
Moreover, all alleged errors resulted from Ar-
nold’s express instructions to counsel. “The
circumstances are extremely rare when counsel
is not required to follow his client’s
instructions on a decision of this nature.”
Lowenfield v. Phelps, 817 F.2d 285, 292 (5th
Cir. 1987), aff’d, 484 U.S. 231 (1988).1
The only issue before us, therefore, is
whether Arnold was competent so to instruct
his counsel. Arnold admits that the “lower
courts . . . determined whether or not Arnold
was competent to stand trial or represent him-
self,” and he does not dispute their findings
that he was. Instead, citing Westbrook v. Ari-
zona, 384 U.S. 150 (1966) (per curiam), he
argues that “[a] defendant’s competency to
stand trial is gauged at a level different from
that of competency to waive a trial right, or to
commit a prescribed act.”
Arnold misreads the import of Westbrook,
however. In Godinez v. Moran, 509 U.S. 389,
398 (1993), the Court revisited Westbrook and
expressly “reject[ed] the notion that
competence to plead guilty or waive the right
to counsel must be measured by a standard
that is higher t han (or even different from)”
competence to stand trial.2 Accord Dunn v.
1 Accord Autry v. McKaskle, 727 F.2d 358, 561
(5th Cir. 1984) (concluding that, if defendant
knowingly chose to seek the death penalty and not
to present mitigating evidence, his counsel was
“ethically bound” to obey that choice).
2 To be competent to stand trial, a defendant
must have “‘sufficient present ability to consult
with his lawyer with a reasonable degree of un-
derstanding’ and [have] ‘a rational as well as fac-
tual understanding of the proceedings against
him.’” Godinez, 509 U.S. at 396 (quoting Dusky
v. United States, 362 U.S. 402 (1960) (per curi-
am)); accord Mata v. Johnson, 210 F.3d 324, 329
n.2 (5th Cir. 2000). Arnold’s high degree of in-
volvement indicates he was capable of understand-
ing the proceedings and consulting with his
attorneys and therefore was competent to make
strategic decisions during voir dire and sentencing.
(continued...)

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3
Johnson, 162 F.3d 302, 307-08 (5th Cir.
1998). Because Arnold was competent to
stand trial and therefore to waive his right to
counsel, he was, a fortiori, competent to over-
ride the advice of counsel. See Coleman, 244
F.3d at 545. Indeed, Arnold threatened to dis-
charge counsel and proceed pro seSSa course
of action he undisputedly was competent to
take under GodinezSSif not allowed to be an
active participant in the trial. Under those cir-
cumstances, we cannot say that the trial court
deprived Arnold of effective assistance of
counsel merely by allowing him to make stra-
tegic decisions.
The district court analyzed this issue in a
comprehensive seventy-seven-page opinion.
Essentially for the reasons given by the district
court, the judgment is AFFIRMED.
2(...continued)
See Coleman v. Mitchell, 244 F.3d 533, 545 (6th
Cir. 2001) (relying on defendant’s high degree of
activity at trial in finding him competent under
Godinez to instruct counsel not to present
mitigating evidence during sentencing phase).
In Godinez, 509 U.S. at 400, the Court
recognized that, in addition to determining
competence, the trial court also must ensure that
the waiver of the right to counsel is knowing and
voluntary. Arnold does not argue that his decision
to ignore the advice of counsel was not knowing or
voluntary, and his statements before and during
trial confirm that it was.

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