Bobby Higginbotham v. State of Louisiana ( 2016 )


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  •      Case: 14-30753   Document: 00513466882     Page: 1   Date Filed: 04/15/2016
    REVISED April 15, 2016
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 14-30753                   United States Court of Appeals
    Fifth Circuit
    FILED
    BOBBY D. HIGGINBOTHAM,                                           March 18, 2016
    Lyle W. Cayce
    Petitioner - Appellant                                    Clerk
    v.
    STATE OF LOUISIANA,
    Respondent - Appellee
    Appeals from the United States District Court
    for the Western District of Louisiana
    Before KING, JOLLY, and PRADO, Circuit Judges.
    PER CURIAM:
    Petitioner–Appellant Bobby Higginbotham was convicted by a jury of
    malfeasance in office and felony theft in Louisiana state court. Higginbotham
    petitions this court for federal habeas relief pursuant to 28 U.S.C. § 2254,
    contending that he was denied meaningful appellate review because of an
    incomplete trial transcript and that he was denied his right to counsel at trial.
    The state appellate court held that there was no error on either point. Because
    Higginbotham fails to show that the state court’s decision was contrary to
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    No. 14-30753
    clearly established law or based on an unreasonable determination of the facts,
    we AFFIRM the judgment of the district court denying the § 2254 petition.
    I.   FACTUAL AND PROCEDURAL BACKGROUND
    Petitioner–Appellant Bobby Higginbotham was charged with one count
    of public contract fraud, one count of malfeasance in office, and one count of
    felony theft, arising out of actions taken by Higginbotham during his tenure as
    mayor of Waterproof, Louisiana. 1 Louisiana v. Higginbotham, 
    122 So. 3d 1
    , 5
    (La. Ct. App. 2012). Early in the state court proceedings, the state trial court
    disqualified Higginbotham’s original counsel based on a conflict of interest.
    Higginbotham told the court that another attorney would represent him, but
    that attorney withdrew as counsel before the scheduled trial date of October
    26, 2009. 2 Higginbotham thereafter “sought numerous continuances of the
    case relating to his purported unsuccessful efforts to obtain counsel.” 
    Id. at 6.
    The court ultimately continued the trial to March 29, 2010, and ordered
    Higginbotham to appear on February 24, 2010, “with enrolled counsel or
    inform the court at that time if [he] intend[ed] to represent himself.”
    At the February status conference, Higginbotham refused to answer
    whether he intended to enroll counsel, and the trial court appointed a public
    defender to assist, but not to formally represent, Higginbotham. The week
    before trial, the prosecution provided its discovery materials to Higginbotham.
    Higginbotham filed a continuance motion, arguing that he had insufficient
    time to review the discovery materials before the trial date. On the day that
    the trial was set to begin, the court conducted a hearing where Higginbotham
    1  Higginbotham was originally charged with twenty-one counts of felony theft,
    eighteen counts of malfeasance, four counts of public salary reduction, and one count of
    unauthorized use of a movable, but the prosecution later amended the indictment to dismiss
    those additional counts.
    2 Higginbotham informed the court that a different attorney would thereafter enroll
    as counsel of record, but that attorney never formally enrolled.
    2
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    indicated that he intended to retain an attorney and would need the trial
    continued for an additional 60 days. The court denied the motion, however,
    noting that a defendant could not manipulate the proceedings to cause further
    delay.       Higginbotham thereafter filed an emergency application for a
    supervisory writ with the state appellate court on the continuance issue. Once
    trial began, Higginbotham represented himself during voir dire and during the
    majority of the trial, with an attorney from the Public Defender’s Office
    assisting Higginbotham as standby counsel. 3
    On April 1, 2010, the state appellate court stayed the trial proceedings,
    and on April 8, 2010, granted Higginbotham’s writ application, granting a
    recess to allow Higginbotham to review the discovery materials and prepare a
    defense. During the recess, Higginbotham retained counsel and discovered
    that the testimony of two prosecution witnesses was not recorded.
    Higginbotham moved for a mistrial, and the trial court denied that motion.
    Higginbotham sought another writ with the state appellate court, and the
    higher court granted Higginbotham’s writ application in part, declaring a
    mistrial with respect to only the public contract fraud count. The state trial
    court granted the partial mistrial accordingly, and trial on the remaining
    charges resumed on May 19, 2010.
    The jury unanimously convicted Higginbotham of the remaining two
    charges: malfeasance in office and felony theft. He was sentenced to five years
    of hard labor, two years suspended, for malfeasance and seven years hard
    labor, three years suspended, for felony theft. His convictions and sentence
    were initially reversed by the state appellate court, but were affirmed on
    rehearing. 
    Higginbotham, 122 So. 3d at 17
    , 34. The Louisiana Supreme Court
    Higginbotham requested that an attorney from the Public Defender’s Office be
    3
    appointed as his counsel, but the trial court found that he was financially ineligible.
    3
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    denied his application for a writ of certiorari. Louisiana v. Higginbotham, 
    116 So. 3d 658
    (La. 2013) (mem.).
    Higginbotham then filed the instant application pursuant to 28 U.S.C.
    § 2254. 4    The magistrate judge issued a report and recommendation,
    recommending the district court deny Higginbotham’s § 2254 petition. The
    district court adopted the magistrate judge’s report and recommendation,
    denied Higginbotham’s § 2254 petition, and denied Higginbotham’s initial
    request for a certificate of appealability.          Ultimately, Higginbotham was
    granted a certificate of appealability on two issues: (1) whether he was denied
    meaningful appellate review because of the missing trial transcripts and
    (2) whether he was denied the right to counsel during trial.
    II.     STANDARD OF REVIEW
    “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.” Ortiz v. Quarterman, 
    504 F.3d 492
    ,
    496 (5th Cir. 2007).          Pursuant to the Antiterrorism and Effective Death
    Penalty Act (AEDPA), Higginbotham is not entitled to federal habeas relief
    unless the state court’s adjudication of his 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.
    28 U.S.C. § 2254(d)(1)–(2).
    4 Although Higginbotham did not pursue state habeas remedies after direct appeal,
    the exhaustion requirement in 28 U.S.C. § 2254(b)(1) is satisfied after a petitioner pursues
    his claims to the highest court on direct appeal. See Bledsue v. Johnson, 
    188 F.3d 250
    , 254
    n.8 (5th Cir. 1999).
    4
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    “The question under AEDPA is not whether a federal court believes the
    state court’s determination was incorrect but whether that determination was
    unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 
    550 U.S. 465
    , 473 (2007). 5 “A state court’s determination that a claim lacks merit
    precludes federal habeas relief so long as ‘fairminded jurists could disagree’ on
    the correctness of the state court’s decision.” Harrington v. Richter, 
    562 U.S. 86
    , 101 (2011) (quoting Yarborough v. Alvarado, 
    541 U.S. 652
    , 664 (2004)).
    Accordingly, “a state prisoner must show that the state court’s ruling on the
    claim being presented in federal court was so lacking in justification that there
    was an error well understood and comprehended in existing law beyond any
    possibility for fairminded disagreement.” 
    Id. at 103.
                   III.    INCOMPLETE TRIAL TRANSCRIPT
    Higginbotham first contends that missing portions of the trial transcript
    violated his right to due process because he lacked the opportunity for
    meaningful appellate review of two claims: (1) that evidence from his dismissed
    count was used to prove his guilt on the other counts and (2) that he was denied
    a peremptory strike. “The right of an accused in a criminal trial to due process
    is, in essence, the right to a fair opportunity to defend against the State’s
    accusations.” Chambers v. Mississippi, 
    410 U.S. 284
    , 294 (1973). Accordingly,
    “if a State has created appellate courts as ‘an integral part of the . . . system
    for finally adjudicating the guilt or innocence of a defendant,’ the procedures
    used in deciding appeals must comport with the demands of the Due Process
    and Equal Protection Clauses of the Constitution.” Evitts v. Lucey, 
    469 U.S. 387
    , 393 (1985) (alteration in original) (citation omitted) (quoting Griffin v.
    Illinois, 
    351 U.S. 12
    , 18 (1956)). However, “a complete verbatim transcript” is
    5  “Under AEDPA, we review ‘the last reasoned state court decision.’” Batchelor v.
    Cain, 
    682 F.3d 400
    , 405 (5th Cir. 2012) (quoting Wood v. Quarterman, 
    491 F.3d 196
    , 202 (5th
    Cir. 2007)).
    5
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    not always required to ensure that a defendant’s right to meaningful appellate
    review is satisfied. See Moore v. Wainwright, 
    633 F.2d 406
    , 408 (5th Cir. 1980)
    (“[T]he state is not obligated to automatically supply a complete verbatim
    transcript.”). Accordingly, the record is “adequate for full appellate review” so
    long as it contains the portions necessary to address the alleged errors below.
    Schwander v. Blackburn, 
    750 F.2d 494
    , 497–98 (5th Cir. 1985) (quoting State
    v. Francis, 
    345 So. 2d 1120
    , 1125 (La. 1977)). Moreover, claims based on
    incomplete transcripts must show that “the absence of such a transcript
    prejudiced [the defendant’s] appeal.” Mullen v. Blackburn, 
    808 F.2d 1143
    ,
    1146 (5th Cir. 1987). 6
    Higginbotham fails to show that the missing portions of the transcript
    prejudiced his appeal as to either claim. First, there was no prejudice as to the
    “other crimes” evidence because the state appellate court held that the
    evidence was admissible under the Louisiana rules of evidence and therefore
    “[t]here was no abuse of the trial court’s discretion.” 
    Higginbotham, 122 So. 3d at 23
    ; see also Fairman v. Anderson, 
    188 F.3d 635
    , 641 (5th Cir. 1999) (“[L]egal
    conclusions that are explicitly grounded in state law may not be reviewed on
    federal habeas.”). Moreover, the state appellate court held that “[t]he evidence
    of defendant’s guilt of the remaining two counts was overwhelming and the
    guilty verdicts were surely unattributable to any error.” 
    Higginbotham, 122 So. 3d at 22
    . Higginbotham has not shown that this holding was based on an
    “unreasonable determination of the facts.” 28 U.S.C. § 2254(d)(2).
    6 Higginbotham relies on Hardy v. United States, 
    375 U.S. 277
    , 278–79 (1964), and its
    progeny for the argument that the entire trial transcript is constitutionally required.
    However, the Supreme Court in Hardy only addressed “the statutory scheme [under the
    Court Reporter Act, 28 U.S.C. § 753] and d[id] not reach a consideration of constitutional
    requirements.” 
    Id. at 282.
    Moreover, Hardy concerned “the federal system,” not a state
    criminal trial. 
    Id. at 278.
                                                6
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    Second, as to Higginbotham’s claim that he was denied a peremptory
    strike, the state appellate court concluded that, as a matter of fact, the parts
    of the record that were not missing did “not show that the trial court’s count of
    peremptory     challenges      [used   by   Higginbotham]     [wa]s    incorrect.”
    
    Higginbotham, 122 So. 3d at 33
    . As the state appellate court recognized, the
    record clearly shows Higginbotham using five of his six peremptory challenges,
    and while not reflected expressly in the record, that court found that “the
    record strongly suggests that [Higginbotham] exercised a peremptory
    challenge to excuse” a sixth venireperson. 
    Id. at 32–33.
    Higginbotham fails
    to show how this was an “unreasonable determination of the facts” by the state
    appellate court, 28 U.S.C. § 2254(d)(2), and therefore we must presume this
    factual determination is correct. 28 U.S.C. § 2254(e)(1). Higginbotham is
    therefore not entitled to federal habeas relief on his claims based on an
    incomplete trial transcript.
    IV.      RIGHT TO COUNSEL
    Higginbotham also contends that he was denied his right to counsel
    during trial. The state appellate court held that Higginbotham implicitly had
    waived his right to counsel through his dilatory tactics of “deliberate[ly]
    attempt[ing] . . . to disrupt the orderly proceedings.” Higginbotham, 
    122 So. 3d
    at 27. The Sixth Amendment guarantees defendants a right to counsel at
    all critical stages of trial. United States v. Cronic, 
    466 U.S. 648
    , 659 (1984).
    While the Supreme Court held that defendants can affirmatively waive their
    right to counsel under the Sixth Amendment in Faretta v. California, 
    422 U.S. 806
    , 833–35 (1975), Faretta did not address implied waiver of counsel due to
    dilatory tactics by a defendant, and the Supreme Court does not appear to have
    addressed this issue or a “materially indistinguishable” set of facts, Price v.
    Vincent, 
    538 U.S. 634
    , 640 (2003) (quoting Williams v. Taylor, 
    529 U.S. 362
    ,
    406 (2000)). The state appellate court’s decision thus is not “contrary to” or an
    7
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    unreasonable application of clearly established law. 28 U.S.C. § 2254(d)(1).
    Moreover, this court has previously indicated that dilatory tactics can
    constitute an implied waiver of the right of counsel. See, e.g., United States v.
    Fowler, 
    605 F.2d 181
    , 183 (5th Cir. 1979) (holding that the right to counsel
    “may not be put to service as a means of delaying or trifling with the court”
    and that failing to retain counsel may “operate[] as a waiver . . . even when the
    failure resulted in a pro se defense” (citation omitted)). 7
    Higginbotham also fails to show that the state appellate court’s finding
    of dilatory tactics was unreasonable. As the state appellate court found, the
    trial court instructed Higginbotham on obtaining an attorney, but he failed to
    obtain an attorney before his next appearance and declined to answer why he
    lacked counsel. Higginbotham, 
    122 So. 3d
    at 27. Higginbotham does not show
    that this factual conclusion is an “unreasonable determination.” 28 U.S.C.
    § 2254(d)(2). And even if we would have held differently based on those facts,
    we cannot characterize a state court’s factual determination as “unreasonable
    merely because [we] would have reached a different conclusion in the first
    instance.” 8 Wood v. Allen, 
    558 U.S. 290
    , 301 (2010). Higginbotham is therefore
    not entitled to federal habeas relief on his right to counsel claim.
    7  While Faretta requires that the court ensure a defendant voluntarily, knowingly,
    and intelligently waived his or her right to counsel, 
    Faretta, 422 U.S. at 835
    , a formal colloquy
    is not required; instead, we “evaluate the circumstances of each case as well as the
    background of the defendant” to determine whether there has been an effective waiver of the
    right to counsel. Wiggins v. Procunier, 
    753 F.2d 1318
    , 1320 (5th Cir. 1985). Based on the
    trial court record, Higginbotham effectively waived his right to counsel through his actions
    undertaken during the pre-trial proceedings and his “aware[ness] of the dangers and
    disadvantages of self-representation.” 
    Faretta, 422 U.S. at 835
    .
    8 Moreover, Higginbotham “sought numerous continuances of the case relating to his
    purported unsuccessful efforts to obtain counsel,” Higginbotham, 
    122 So. 3d
    at 6, and the
    trial was ultimately continued for five months after its initial October 2009 start date. See
    
    Fowler, 605 F.2d at 183
    (noting that only twenty days in certain circumstances is “a
    reasonable time in which to retain counsel and that failure to do so operated as a waiver”).
    8
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    V.   CONCLUSION
    For the foregoing reasons, we AFFIRM the judgment of the district court
    denying Higginbotham’s 28 U.S.C. § 2254 petition.
    9