Habeas corpus; 28 USC § 2254; Whether petitioner waived his right to counsel on direct appeal; Whether his waiver was “knowing & intelligent”; Whether trial counsel was ineffective for failing to object to statements made during the prosecution’s closing argument; Procedurally defaulted claim; Cause; Whether the claim was “substantial”; Prejudice

The court held that petitioner-Gaither knowingly and intelligently waived his right to appellate counsel on direct appeal where he repeatedly expressed his wish to proceed pro se, and he was adequately informed of the consequences of his decision. Further, he procedurally defaulted his ineffective assistance of trial counsel claim. A state jury convicted Gaither of murder and kidnapping. All his post-conviction appeal efforts failed. He pursued his state-court appeal pro se but claimed that he actually did not waive his right to counsel on direct appeal. The court assumed that he had not procedurally defaulted on this claim, considered it on the merits, and held that he waived his right to appellate counsel. Over a span of several months, “Gaither ‘fervently and repeatedly asserted his right to represent himself’ in his filings[.]” The state also made him aware of the risks of self-representation. The Department of Public Advocacy “encouraged him to get a lawyer in a detailed letter that explained the many dangers of pro se appeals.” The court held that the Kentucky courts didn’t violate his constitutional rights by giving him “exactly what he wanted. And the district court didn’t err when it found that Gaither’s waiver of counsel was ‘knowing and intelligent.’” It then turned to his claim that his trial counsel was ineffective for failing to challenge statements made during the prosecution’s closing argument. It was “undisputed that Gaither procedurally defaulted on this claim.” And the court found that he could not overcome the default. The issue of cause came down to whether his ineffective assistance claim was “substantial.” The court agreed with the lower courts that it was not “because it ‘has no merit.’” It concluded the claim had no basis in fact or law. As his underlying claim lacked merit, he could not “show ‘cause’ for his default.” And the court also determined that he could not “show ‘actual prejudice’ either.” Thus, it affirmed the district court’s dismissal of his habeas petition.