NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _______________

No. 22-1926 _______________

UNITED STATES OF AMERICA

v.

REGINALD BRADDY, Appellant _______________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal No. 3-14-cr-00104-001) District Judge: Honorable Malachy E. Mannion _______________

Submitted Under Third Circuit L.A.R. 34.1(a) May 16, 2023 _______________

Before: CHAGARES, Chief Judge, GREENAWAY, JR., and PHIPPS, Circuit Judges.

(Filed: May 18, 2023) _____________________

OPINION ∗ _____________________

∗ This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHAGARES, Chief Judge.

Reginald Braddy filed a motion pursuant to

to vacate his

criminal conviction. He argues that he was provided ineffective assistance of counsel on

direct appeal because his appellate counsel failed to argue that he was deprived of his

Sixth Amendment right to represent himself at trial. The District Court denied Braddy’s

§ 2255 motion, and we will affirm.

I.

Because we write primarily for the parties, we recite only the facts essential to our

decision. In 2014, Braddy was charged with conspiring to distribute methamphetamine

in violation of

. 1 Attorney Enid Harris was appointed to represent him

under the Criminal Justice Act.

The relationship between Braddy and Harris deteriorated after the two had a

dispute over whether to move to suppress certain evidence. Braddy sent a letter to the

District Court in which he stated that he wanted to “withdraw Attorney Enid W. Harris as

my counsel and proceed pro se.” Appendix (“App.”) 71. The District Court responded to

Braddy four days later. In its response, the District Court informed Braddy that it had

received his request to proceed pro se, advised Braddy that Harris “is your lawyer and not

your servant,” and reminded Braddy “of the saying that he who represents himself has a

fool as a client.” App. 74. Still, the District Court advised Braddy that it would request

Harris’s “input on [Braddy’s] relationship with her” and would “take it from there.”

1 A superseding indictment subsequently charged Braddy with conspiring to distribute methamphetamine, cocaine, and heroin.

2 Braddy then sent another letter to the District Court. In that letter, he apologized

to “[his] attorney Enid Harris” if he “was disrespectful in any type of way” and claimed

he understood that “Ms. Harris is [his] lawyer and not [his] servant.” App. 75. Although

he brought certain legal issues to the attention of the District Court in that letter, he did

not renew his request to represent himself.

A few weeks later, Harris requested to withdraw as Braddy’s counsel, citing

“irreconcilable differences” about “appropriate motions to be filed” and the “role of the

defendant in dictating . . . defense strategy.” App. 121. The District Court granted

Harris’s request to withdraw and appointed Joseph O’Brien as Braddy’s new counsel.

Soon after, O’Brien filed the motion to suppress that Braddy had originally requested.

The District Court denied the motion, and the case proceeded to trial. Before trial,

Braddy submitted several other pro se motions and letters to the District Court. In some

of those filings, Braddy wrote that he was proceeding “pro se, pursuant to Faretta v.

California,

(1974).” App. 133; see also App. 136. But at no point did

Braddy question O’Brien’s representation or request to represent himself at trial, and he

proceeded to trial with O’Brien as his attorney. Braddy was convicted.

After his conviction, Braddy filed a pro se motion for a new trial under Fed. R.

Crim. P. 33 in which he, among other things, argued that the District Court had violated

his Sixth Amendment rights by failing to conduct a hearing on his request to represent

himself in his initial letter to the District Court. The District Court denied the motion,

reasoning that because the initial request was isolated and he had not made a subsequent

3 request that was both clear and unambiguous, he had acquiesced to representation and

forfeited his right to represent himself at trial.

Braddy, represented by O’Brien, appealed. His brief on appeal raised five distinct

issues but it did not raise the Sixth Amendment self-representation argument. We

affirmed. United States v. Braddy,

(3d Cir. 2017).

Braddy next filed the instant § 2255 motion, contending, among other things, that

O’Brien had provided ineffective assistance of appellate counsel by failing to raise the

Sixth Amendment issue on appeal. The District Court denied his § 2255 motion without

a hearing. Braddy appealed, and we vacated the District Court’s order to the extent that it

denied the ineffective assistance of appellate counsel claim and remanded for further

consideration. United States v. Braddy,

(3d Cir. 2020).

On remand, the District Court held an evidentiary hearing on the motion. O’Brien

and Braddy testified. O’Brien testified that Braddy had never expressed to him a desire

to proceed pro se, and that he would have brought Braddy’s request to the attention of the

District Court if it had been made. Braddy acknowledged that he had never discussed

representing himself with O’Brien, and that he had never requested to proceed pro se

after his initial letter to the District Court. He also testified ambiguously about raising the

Sixth Amendment issue on appeal — he at one point testified that the Sixth Amendment

issue was the sole issue he wanted to raise on appeal, but at another point, he seemed to

acknowledge that he had not asked O’Brien to raise the Sixth Amendment issue.

The District Court denied the § 2255 motion. It concluded that O’Brien’s

performance on appeal had not fallen below an objective standard of reasonableness,

4 because the Sixth Amendment issue was not meritorious, and O’Brien would not have

had a good-faith basis to raise it on appeal. The District Court therefore concluded that

O’Brien had not provided ineffective assistance. Braddy appealed.

II.2

The Sixth Amendment guarantees a criminal defendant the “right to the effective

assistance of appellate counsel on the first appeal as of right.” United States v. Scripps,

(3d Cir. 2020). We assess claims of ineffective assistance of appellate

counsel by reference to the test set forth in Strickland v. Washington,

(1984). To secure relief based on alleged ineffective assistance of counsel, the Strickland

framework requires a defendant to “show that counsel’s performance was deficient” by

proving “that counsel made errors so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” through a showing that

“counsel’s representation fell below an objective standard of reasonableness.”

. If a defendant can prove constitutionally deficient performance, the defendant

must also “show that the deficient performance prejudiced the defense” before a court

may grant relief.

.

In order to assess whether an appellate attorney performed deficiently by failing to

raise a certain issue on appeal, a court must first consider whether the defendant had a

meritorious basis for an appeal on that issue. After all, “[i]f there was no underlying

2 The District Court had jurisdiction to consider Braddy’s § 2255 motion under

and 2255(a). We are vested with jurisdiction in this appeal by

, 2253(a), 2255(d). We review legal determinations de novo and factual findings for clear error. United States v. Doe,

(3d Cir. 2015).

5 error, then appellate counsel was not ineffective for failing to raise this issue on appeal.”

Scripps,

. Thus, the viability of Braddy’s § 2255 motion turns on whether

Braddy’s right to self-representation was in fact violated.

A criminal defendant has a Sixth Amendment right to represent himself at trial.

Faretta v. California,

(1975). But because self-representation is

often ill-advised and implies waiving the Sixth Amendment right to counsel, “a defendant

must clearly and unequivocally ask to proceed pro se” in order to invoke the right of self-

representation. Buhl v. Cooksey,

(3d Cir. 2000). That rule prevents

defendants from “inadvertently waiving counsel based upon occasional musings on the

benefits of self-representation.”

(quotation marks omitted).

Here Braddy only made a single explicit request to represent himself, in the

context of a dispute with his lawyer over pretrial strategy. Considered in context, that

request to proceed pro se was neither clear nor unequivocal. He withdrew that request

after the District Court explained the risks of self-representation. Once Harris withdrew

and was replaced by O’Brien — an attorney who followed Braddy’s preferred approach

to pretrial motion practice — Braddy never again requested to represent himself at trial.

And even as Braddy corresponded with the District Court on many other issues in a

manner that revealed he was aware of his right to self-representation, he never again

requested to proceed pro se at trial.

Because Braddy’s request to proceed pro se was an isolated request that was

neither clear nor unequivocal, he does not have a viable Sixth Amendment claim based

on alleged deprivation of his right to self-representation. Accordingly, his appellate

6 counsel did not provide ineffective assistance by failing to raise that issue on appeal. The

District Court therefore did not err by denying Braddy’s § 2255 motion.

III.

For the foregoing reasons, we will affirm the judgment of the District Court.

7