Roy Smith v. Richard Brown

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 12-3731

ROY A. SMITH,

Petitioner-Appellant,

v.

RICHARD BROWN,

Respondent-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Indiana, South Bend Division.

No. 3:05-cv-00590-JTM — James T. Moody, Judge.

____________________

ARGUED APRIL 8, 2014 — DECIDED AUGUST 26, 2014

____________________

Before POSNER and TINDER, Circuit Judges, and LAWRENCE,

District Judge.*

TINDER, Circuit Judge. Roy A. Smith appeals the district

court’s denial of his habeas petition, through which he seeks

to set aside his Indiana criminal conviction due to allegedly

ineffective assistance of counsel. Although we agree that it

* Of the United States District Court for the Southern District of Indiana,

sitting by designation.

2 No. 12-3731

appears Smith’s counsel was particularly deficient, Smith

has failed to demonstrate how his lawyer’s substandard ef-

fort prejudiced his case in light of the overwhelming evi-

dence against him. We therefore affirm the district court’s

judgment.

I. Background

The incident underlying this appeal occurred on March

19, 2003, when Smith was already serving a 90-year sentence

for murder in the Indiana State Prison. That morning at

breakfast, Smith walked behind a fellow inmate, Anthony

Fisher, and stabbed him several times with half a pair of

scissors. Fisher suffered wounds to the neck, back, and chest.

He required surgery and remained in the hospital for twelve

days. Smith’s attack was observed by several guards, who

promptly detained him.

Facing charges for attempted murder and aggravated

battery in LaPorte County Superior Court, Smith received a

court-appointed public defender named James Cupp. Soon

after the appointment, Smith himself composed numerous

motions to the court, which Cupp believed were meritless

and therefore did not file. These attempted motions includ-

ed, for example, a challenge to the integrity of the arrest

warrant because the copy Smith received did not have a sig-

nature on it. Smith then tried to submit a motion to change

attorney, and sent a letter to Cupp detailing his frustrations

and Cupp’s failure to communicate with him. But during a

subsequent pretrial hearing on December 23, 2003, Smith de-

cided not to request a change of counsel, saying that he was

“going to give it another shot as long as I can get my mo-

tions filed timely and he kind of abide[s] by my wishes.”

No. 12-3731 3

The attorney-client relationship did not improve. The

court held another pretrial hearing on April 23, 2004, during

which Cupp questioned Smith on the record so that he could

essentially argue in support of his self-drafted motions. At

the end of that proceeding, Smith again requested to have

another attorney appointed. On May 6, the court issued an

order denying all of Smith’s motions, including his request

to change his attorney. At the next hearing, on June 4, Cupp

informed the court that Smith had filed a disciplinary com-

plaint against him with the Indiana state bar. He represented

to the court that the complaint had already been dismissed.

He also noted that Smith wished to file an interlocutory ap-

peal of the court’s denial of his motions, but Cupp declined

to move for a continuance to allow such an appeal. Smith,

for his part, again informed the court of his frustration with

Cupp’s decision not to file his desired motions and his al-

leged refusal to communicate with him. In fact, he claimed

that “I haven’t discussed anything with Mr. Cupp in 11

months” and that Cupp had “done absolutely nothing” to

assist in Smith’s defense in that time. Smith also waived his

right to a jury trial. Shortly after the June 4 hearing, Smith

filed a motion on his own to remove Cupp and proceed pro

se, along with a new motion to dismiss the indictment.

A bench trial commenced on June 22, but Smith sought a

continuance. He claimed he had not received notice of the

court’s May 6 order denying his earlier motions until two

days before the June 4 hearing, and that therefore he had

been unprepared to promptly challenge the court’s rulings.

Moving on to his motion to dismiss the indictment, he ar-

gued that the trial court judge was not neutral because he

had already made the probable cause determination under-

lying his arrest. He further stated that he wanted to call wit-

4 No. 12-3731

nesses and present evidence at trial, but that Cupp had re-

fused to pursue those leads. In pleading with the trial court,

Smith stated that “I don’t know what [Cupp is] going to do”

at trial because “[h]e refused to communicate with me. Since

we [have] been in this courtroom, he hasn’t said two words

to me. … If he represents me I don’t have a defense.” The

court denied Smith’s remaining motions, and the trial pro-

ceeded.

Cupp gave an opening statement setting forth the theory

that the stabbing was “self-defense to avoid [Smith’s] annihi-

lation” at the hands of the victim, Fisher. The state then

called Fisher to the stand. After initially refusing to swear to

tell the truth, Fisher declined to name his attacker and was

otherwise unhelpful to the state’s case. On cross-

examination, Cupp questioned Fisher about an argument

between the two men the day before the stabbing. Smith in-

terjected by asking rhetorically, “You my lawyer?” Cupp

continued, asking Fisher if he had told Smith the day before

the attack that “Mr. Smith had defied [Fisher] for the last

time.” Fisher admitted that he had said this. Cupp then tried

to get Fisher to admit that he had stated his intention to kill

Smith the following day. Fisher denied saying so, and of-

fered to testify to what he did tell Smith. However, Cupp did

not press the issue, and instead promptly ended the cross-

examination.

The state then called Derrick Judkins, a correctional of-

ficer at the time, and he testified that he saw Smith stab Fish-

er. Specifically, he testified that he saw Smith “walking in

the [prisoners’ dining room], and he did not proceed to fol-

low around to get his tray. He just went in to where the ta-

bles were and proceeded to attack the inmate.” He further

No. 12-3731 5

testified that Fisher’s back was to Smith when he first struck,

and that Smith had approached him from behind. Judkins

testified that he at first thought Smith was striking Fisher

with his fist, and did not realize Smith had a weapon until

after the two men were separated and the half pair of scis-

sors was found underneath the table. The prosecution then

showed Judkins a photo of the half-pair of scissors found

under the table near the stabbing. Cupp objected to the ad-

mission of the exhibit, but the court overruled the objection

because the photo was not being offered into evidence; the

witness was simply being asked to identify the item in the

photo. Cupp chose not to cross-examine Judkins.

The state called a second correctional officer present dur-

ing the incident, Kenneth Rutland. He testified that he re-

sponded to the attack in the dining room and grabbed

Smith’s right arm to prevent him from striking Fisher again.

He stated that “that’s when a piece of a pair of scissors fell

out of his hand.” He later admitted that he did not know

that the object that fell out of Smith’s hand was a piece of

scissors until it was later recovered under the table. He also

conceded that he had not witnessed the start of the attack.

Rutland further provided the detail that Smith was wearing

black gloves on both his hands at the time he was hand-

cuffed. Cupp did not cross-examine Rutland.

The state then called a third correctional officer, Mike

Chlebowski. He testified that after the attack he recovered

the piece of scissors from under the table, along with a loose

black glove that had also fallen to the floor. He further testi-

fied that, following a strip search, authorities discovered the

other half of the scissors and the matching glove in Smith’s

pocket. Cupp declined to cross-examine him as well.

6 No. 12-3731

The state then called two witnesses who were not present

during the incident. One of them was a prison investigator

named Charles Whelan, who testified that he found Smith’s

prison identification card on the blood-spattered portion of

the floor. Cupp did not cross-examine Whelan or the last

witness, a nursing supervisor who testified as to Fisher’s

medical records and condition following the attack. Cupp

did not call any witnesses either, over his own client’s inter-

jection that “Yes we do [have evidence]. And I got witnesses

I’d like to call.” He instead made a very brief closing argu-

ment, which we reproduce in its entirety: “Judge, I’d simply

leave it to the Court’s discretion as to whether the case has

met its—the State has met its burden with respect to both

Counts One and Two. That’s all we would have. Thank

you.” The court promptly rendered a verdict finding Smith

guilty of attempted murder and aggravated battery. The ag-

gravated battery conviction was later vacated because it was

a lesser included offense that merged with the attempted

murder conviction. True to form, Cupp did not provide any

arguments in mitigation during the sentencing phase of the

proceeding. The court sentenced Smith to 34 years in prison,

to be served consecutively to his current term.

Smith obtained direct review in the Indiana court of ap-

peals, claiming ineffective assistance of counsel. The court

held that “[d]efense counsel did not, for all practical purpos-

es, mount a defense on Smith’s behalf” because he cross-

examined only one witness and called none in defense,

while objecting only to one potential prosecution exhibit.

The court concluded that “[w]e cannot characterize defense

counsel’s representation as ‘effective.’” Nevertheless, it af-

firmed Smith’s conviction because he failed to show any

prejudice resulting from Cupp’s performance in light of the

No. 12-3731 7

strength of the eyewitness testimony against him. Smith then

petitioned for a transfer to the Supreme Court of Indiana,

but transfer was denied.

In September of 2005, Smith prematurely sought habeas

relief in the United States District Court for the Northern

District of Indiana; the district court stayed the petition so

that he could exhaust his remaining state remedies. He peti-

tioned for post-conviction relief in Indiana state court, and

appealed its denial to the court of appeals. There he argued

that his appellate counsel’s representation was ineffective.

The court of appeals affirmed the post-conviction court’s

denial of his petition, but also observed in passing that “this

court has already found Smith’s trial counsel to have been

ineffective.”

The district court then lifted the stay and considered

Smith’s habeas petition. Cupp did not submit any evidence

to the district court explaining his decisions during the liti-

gation or describing his trial strategy. The district court

acknowledged that the state court of appeals had found his

trial court counsel to be ineffective, but held that the court

reasonably concluded that Cupp’s behavior did not preju-

dice Smith. Absent such prejudice, Smith’s habeas petition

could not succeed under the Anti-Terrorism and Effective

Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). (Smith had

also raised a claim—denied on direct review in state court

and pressed in the district court as part of the habeas pro-

ceeding—disputing the trial court’s denial of his motion to

proceed pro se. The district court rejected that argument as

well, and that issue is not before this court.) On May 30,

2013, we granted Smith a certificate of appealability recog-

nizing that he had “made a substantial showing” that he was

8 No. 12-3731

denied his Sixth Amendment right to effective assistance of

counsel. See 28 U.S.C. § 2253(c).

II. Discussion

“We review a district court’s judgment regarding habeas

relief de novo.” McElvaney v. Pollard, 735 F.3d 528, 531 (7th

Cir. 2013). However, under AEDPA, this court may not

grant relief unless the challenged state court decision “was

contrary to, or involved an unreasonable application of,

clearly established Federal law” or “was based on an unrea-

sonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d).

Pursuant to Strickland v. Washington, a successful ineffec-

tive assistance of counsel claim must show that (1) counsel’s

performance was deficient, meaning it fell below an “objec-

tive standard of reasonableness” informed by “prevailing

professional norms” and (2) counsel’s deficient performance

prejudiced the petitioner, meaning that there is a “reasona-

ble probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” 466

U.S. 668, 687–88, 694. However, in cases where a defendant

has been effectively denied the right to counsel “altogether,”

prejudice may be presumed. Id. at 692. Such a circumstance

was presented in United States v. Cronic, 466 U.S. 648, 659

(1984), decided the same day as Strickland. Smith contends

that his counsel was so deficient as to trigger a presumption

of prejudice.

The state responds by arguing that Smith both waived

and procedurally defaulted on his Cronic claim by failing to

raise it either before the federal district court or in state

court. He urged those tribunals to employ the standard two-

No. 12-3731 9

pronged Strickland analysis, and did not argue that the

courts should simply presume the existence of prejudice un-

der Cronic. Smith, however, contends that Cronic simply pre-

sents a particularly egregious form of Strickland violation,

and that a citation to Strickland impliedly incorporates the

Cronic standard as well. He further asserts that the state

court of appeals should have applied the presumption of

prejudice once it found that “[d]efense counsel did not, for

all practical purposes, mount a defense on Smith’s behalf.”

To avoid waiver on appeal, a party must “adequately

present an issue to the district court” first. Fednav Int’l Ltd. v.

Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). The require-

ment for preserving a constitutional claim for habeas review

is similar: a petitioner must show that he “fairly presented

[the] claim to the state judiciary.” Ellsworth v. Levenhagen, 248

F.3d 634, 639 (7th Cir. 2001). In Ellsworth we laid out four fac-

tors for determining whether the petitioner has avoided de-

fault: “1) whether the petitioner relied on federal cases that

engage in a constitutional analysis; 2) whether the petitioner

relied on state cases which apply a constitutional analysis to

similar facts; 3) whether the petitioner framed the claim in

terms so particular as to call to mind a specific constitutional

right; and 4) whether the petitioner alleged a pattern of facts

that is well within the mainstream of constitutional litiga-

tion.” Id.

The Fifth Circuit has on at least one occasion distin-

guished between a Strickland claim and a Cronic claim. See

Hopper v. Dretke, 106 F. App’x 221, 228 n.25 (5th Cir. 2004)

(considering a Strickland claim but finding a Cronic argument

waived). The Eighth Circuit has held in Wenmark v. Iowa, 322

F.3d 1018, 1021 (8th Cir. 2003), that a Strickland claim did not

10 No. 12-3731

adequately raise an argument to extend the “rule of pre-

sumed prejudice,” enunciated in Cuyler v. Sullivan, 446 U.S.

335, 350 (1980), that applies when a lawyer representing

multiple defendants suffers a conflict of interest that ad-

versely affects his performance. The state urges us to like-

wise conclude that, because Smith argued that Cupp’s defi-

cient performance prejudiced him, he waived any argument

that prejudice should be presumed. But of course, Smith

seeks not to break new ground but instead to simply have

the rule in Cronic applied to his case. And the state does note

that Strickland itself cited Cronic as an example of an attor-

ney’s constitutionally deficient performance: “In certain

Sixth Amendment contexts, prejudice is presumed. Actual or

constructive denial of the assistance of counsel altogether is

legally presumed to result in prejudice.” Strickland, 466 U.S.

at 692 (citing Cronic, 466 U.S. at 659). This at least suggests

that Cronic describes merely a subset within the universe of

Strickland claims that includes “the most extreme instances

of lawyerly incompetence.” Barrow v. Uchtman, 398 F.3d 597,

603 n.4 (7th Cir. 2005). Smith contends that requiring a peti-

tioner to cite both cases elevates form over substance.

Fortunately, we need not decide the thorny issue of

whether the Cronic issue was fairly presented in this case.

Whether or not Smith waived his Cronic contention, it lacks

merit. And it certainly cannot meet the exacting AEDPA

standard. The Supreme Court in Strickland limited the pre-

sumption of prejudice to cases involving “[a]ctual or con-

structive denial of the assistance of counsel altogether.” 466

U.S. at 692. This includes, for example, “claims based on

state interference with the ability of counsel to render effec-

tive assistance to the accused.” Id. at 683. In Cronic the Court

explained that presuming prejudice would be appropriate in

No. 12-3731 11

the face of a “complete denial of counsel” or denial at a “crit-

ical stage” of the litigation. 466 U.S. at 659. The presumption

would also be triggered if counsel “entirely fails to subject

the prosecution’s case to meaningful adversarial testing,” or

if, due to the timing of the trial or other factors, “the likeli-

hood that any lawyer, even a fully competent one, could

provide effective assistance is [] small.” Id. at 659–60. In sum,

the presumption is appropriate where “[p]rejudice … is so

likely that case-by-case inquiry into prejudice is not worth

the cost.” Strickland, 466 U.S. at 692. We have observed that

the “Cronic exception is exceedingly narrow.” Miller v. Mar-

tin, 481 F.3d 468, 472 (7th Cir. 2007), and the Supreme Court

has reiterated that “the attorney’s failure to test the prosecu-

tor’s case … must be complete.” Bell v. Cone, 535 U.S. 685,

697 (2002).

Cupp’s performance does not meet this high bar. He did

not abandon Smith during the proceedings, nor did the state

interfere with his defense. At one pretrial hearing, Cupp and

the trial judge went so far as to allow Smith to file his de-

sired motions and take the stand to essentially argue on his

own behalf. Cupp cross-examined the victim at trial and of-

fered a self-defense theory of the case. It is true that Cupp’s

closing statement was equivocal and perfunctory to the

point of being useless. But against the overwhelming weight

of the state’s evidence, he did not have many promising op-

tions. Considering prejudice, or its absence, is particularly

important when a lawyer’s deficient representation is at least

in part influenced by the utter weakness of the defendant’s

case.

This situation is therefore readily distinguishable from

Barrow, which Smith cites as an example of deficient repre-

12 No. 12-3731

sentation that came “perilously close to triggering” a pre-

sumption of prejudice. 398 F.3d at 603 n.4. Barrow’s attorney

failed to put on any evidence in his defense due in part to his

“misunderstanding of Illinois law.” Id. at 601. Here, by con-

trast, Cupp attempted to elicit evidence supporting a poten-

tial claim of self-defense. And in any event we decided that

the prejudice presumption would have been inappropriate

in Barrow because “counsel’s failure was not complete, but

occurred ‘at specific points’ in the proceeding.” Id. at 603 n.4

(quoting Bell, 535 U.S. at 686). Likewise, Cupp did not act to

deny Smith of his representation “altogether,” and therefore

the state court of appeals made no error in declining to pre-

sume prejudice under Cronic. Although he did not mount

much of a defense, Cupp did subject the state’s case to some

meaningful adversarial testing during his opening statement

and his cross-examination of the victim. The Cronic pre-

sumption is inappropriate here.

Consequently, we could not find that the state court un-

reasonably misapplied the law in declining to presume prej-

udice, and we may not grant habeas relief on that ground.

The state court of appeals was not compelled to apply Cronic

once it found that Cupp essentially failed “to mount a de-

fense” on Smith’s behalf. The court was no doubt justifiably

critical of Cupp’s performance, but it did not find that he

had abandoned his client, absented himself from the case, or

so egregiously failed his duty to represent Smith that preju-

dice should be presumed. That the court did not consider it

appropriate to presume prejudice is borne out by the fact

that it went on to find none.

As to Smith’s ordinary Strickland claim, we agree with the

state court of appeals that Cupp’s assistance was substantial-

No. 12-3731 13

ly deficient, and that it fell far short of acceptable standards

of professional conduct for defense counsel. The state wisely

does not argue otherwise. Cupp’s cross-examination of Fish-

er ended after only a few questions, even when Fisher’s tes-

timony opened the possibility that he had threatened Smith

and put him in danger. Cupp entirely failed to cross-

examine any other witness, or call witnesses of his own. This

is particularly troubling in light of Smith’s statement during

trial that he wanted to call several individuals to the stand.

We also do not know what sort of investigation Cupp under-

took to learn the facts of the case, other than his apparent in-

quiry into Smith’s conversation with Fisher the day before

the attack. Smith persistently complained both before and

during trial that Cupp failed to communicate with him, as-

sist in his defense before trial, or file requested motions. Giv-

en the general lack of merit of those motions, we sympathize

with Cupp’s predicament, especially after Smith lodged a

disciplinary complaint against him. But this strained attor-

ney-client relationship adversely affected Cupp’s perfor-

mance.

Smith also points out that Cupp missed an inconsistency

between the testimonies of two of the guards. One of the

correctional officers, Rutland, testified that Smith wore

gloves on each of his hands at the time he was handcuffed.

But another one, Chlebowski, testified that one glove was in

Smith’s pocket, along with the other half of the pair of scis-

sors used in the attack. He also claimed to have seen the oth-

er glove on the floor, although he observed this only after

Smith had been handcuffed. Attentive counsel should have

noticed this inconsistency and cross-examined Chlebowski

about it. Although one minor discrepancy would not have

significantly undermined the guards’ combined testimony

14 No. 12-3731

that Smith attacked Fisher from behind with a half pair of

scissors, Cupp should have investigated this issue and seen

where it led.

Worst of all, Cupp failed to give a meaningful closing

statement. An attorney is obligated to represent his client

zealously. See Model Rules of Prof’l Conduct Preamble

(2013). For a lawyer to leave a criminal verdict to the court’s

“discretion,” without attempting to guide that discretion in

his client’s favor, is unacceptable. Cupp could have ad-

dressed the self-defense theory that he advanced in his open-

ing argument and his brief cross-examination of Fisher. He

could have reminded the court that the state bore the burden

of proving every element of the offense beyond a reasonable

doubt, that Fisher had declined to identify Smith as his at-

tacker, or that the state had conspicuously declined to call to

the stand any other inmate present at breakfast that day. If

he had not failed to catch the inconsistency regarding

whether or not Smith was wearing his gloves, he could have

brought that issue to the court’s attention as well. Instead, he

offered a closing that failed to even ask for a favorable result

and accomplished next to nothing.

We of course understand that an attorney may tailor his

closing argument in a bench trial so as to skip some of the

didactic lecturing and theatrical grandstanding that might

occur in arguments before a jury. We also appreciate that the

case against Smith was overwhelming. And the Supreme

Court has recognized that in rare instances a state court may

treat even a waiver of closing argument as a strategic choice.

See Bell, 535 U.S. at 702 (holding that it was not “objectively

unreasonable” for a state court “to deem counsel’s choice to

waive argument a tactical decision about which competent

No. 12-3731 15

lawyers might disagree”). For example, counsel may choose

to forego a closing argument to prevent the prosecution

from correcting a mistake or providing a damaging argu-

ment in rebuttal. See Fox v. Ward, 200 F.3d 1286, 1296 (10th

Cir. 2000) (“[I]t is well-settled that the decision to waive an

opening or closing statement is a commonly adopted strate-

gy, and without more, does not constitute ineffective assis-

tance of counsel.”). But none of these considerations can ex-

plain why Cupp decided to throw in the towel in this case.

His closing should have been more than just a throat-

clearing exercise.

That being said, we agree with the district court that

Cupp’s deficient performance did not prejudice Smith’s case.

One guard testified that he saw Smith walk up behind a

seated Fisher and stab him. Another wrested a weapon from

his hand while he was striking Fisher. A third identified the

weapon as part of pair of scissors, and found the matching

half in Smith’s pocket. Fisher sustained stab wounds on his

back and neck, consistent with being attacked from behind.

Smith was detained and removed from the meal area imme-

diately following the attack. An investigator found Smith’s

prison identification card amidst the blood spatter. Fisher

testified that he had argued with Smith the day before the

stabbing, thus establishing Smith’s motive. Admittedly, this

last piece of information was introduced during Cupp’s

cross-examination of Fisher, but we cannot fault him for

pursuing a self-defense strategy. See Gentry v. Sevier, 597

F.3d 838, 851 (7th Cir. 2010) (“[S]econd-guessing strategic

decisions in hindsight will generally not be a meritorious ba-

sis to find ineffective assistance of counsel.”). We do fault

him, however, for abandoning that line of argument mid-

stream. And in any event, we agree with Smith that Cupp’s

16 No. 12-3731

representation was deficient. But even a diligent attorney

could have elicited that testimony, and it added to the state’s

already damning case.

In light of this overwhelming evidence, the precise loca-

tion of Smith’s gloves is a trivial concern. Smith makes much

of the fact that no one correctional officer witnessed the en-

tire incident, from Smith’s approach until the discovery of

the scissors under the table. But combined, overlapping tes-

timony of three individuals that is consistent on all major

issues provides powerful corroboration. Nor does Smith

point to any potential evidence in his favor. Although he

claims he had witnesses he wanted to call, he does not indi-

cate what these individuals would have said, or how that

evidence could have cast doubt on the eyewitness testimony

of three correctional officers. This distinguishes this case

from the one Smith cites, Stitts v. Wilson, 713 F.3d 887 (7th

Cir. 2013), cert. denied, 134 S. Ct. 1282 (2014), in which an at-

torney failed to call alibi witnesses that could have under-

mined the state’s case. Finally, even if Cupp had vigorously

pursued a self-defense theory, it would have assuredly

failed in light of the unprovoked nature of the attack. Smith

has not advanced any argument as to how a self-defense ar-

gument could have prevailed. In short, he has offered us “no

reason to believe that the trial would have come out differ-

ently” had his representation been satisfactory. United States

v. Kamel, 965 F.2d 484, 499 (7th Cir. 1992). The state court did

not err in finding a lack of prejudice and did not apply the

law unreasonably.

In passing, Smith asserts that Cupp’s representation at

sentencing was deficient, but he does not seek resentencing.

Nor has he offered any potential mitigating evidence or ar-

No. 12-3731 17

gument Cupp could have made to obtain a lower sentence.

Smith does briefly assert that the Cronic presumption should

apply to Cupp’s conduct at sentencing. See Appellant’s Br. at

27 & n.9. But the case on which he relies, Miller v. Martin, 481

F.3d 468 (7th Cir. 2007), is readily distinguishable. There

counsel essentially sat out the sentencing proceedings after

having informed the court that his client “[did] not recognize

the validity of the trial or the authority of the Court to pro-

ceed to disposition at this time.” Id. at 470 (quotation marks

omitted). By comparison, Cupp participated in the sentenc-

ing proceeding. Although he did not offer a suggested sen-

tence, neither did the prosecution. And any attempt to offer

mitigating evidence may have prompted the state to high-

light aggravating factors, such as Smith’s lengthy criminal

history. Cupp’s efforts at sentencing amounted to “poor rep-

resentation,” not the sort of “non-representation … [that]

triggers a presumption of prejudice.” Id. at 473. This is true

of Cupp’s performance as Smith’s counsel overall.

III. Conclusion

Because Smith’s habeas petition lacks merit, we AFFIRM

the decision of the district court.