Deshun Thomas v. Lorie Davis, Director

Case: 17-20661 Document: 00515508370 Page: 1 Date Filed: 07/29/2020

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

July 29, 2020

No. 17-20661

Lyle W. Cayce

Clerk

DESHUN THOMAS,

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This court granted a certificate of appealability on habeas petitioner

Deshun Thomas’s claim that his trial counsel failed to subject the prosecution’s

case to meaningful adversarial testing in violation of United States v. Cronic,

466 U.S. 648, 104 S. Ct. 2039 (1984). Counsel was appointed for Thomas.

After reviewing the parties’ supplemental briefs, and finding no error in the

federal district court’s rejection of that claim, we affirm.

I.

In 2006, after a second jury trial, a Texas jury convicted Thomas of

aggravated robbery and sentenced him to seventy-five years’ imprisonment.

During closing argument and sentencing, Thomas’s trial counsel, Ken McLean,

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acknowledged the strength of the prosecution’s evidence and indicated that

Thomas deserved a “substantial sentence.” After his conviction and sentence

were affirmed on direct appeal,1 Thomas filed a pro se habeas petition in state

court, asserting, inter alia, ineffective assistance of counsel based on McLean’s

statements during summation and sentencing. Thomas’s petition cited to both

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and United

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). The state district court

denied Thomas relief in a reasoned opinion that tracked Strickland but did not

expressly reference Cronic. The Texas Court of Criminal Appeals

subsequently denied relief without written order, adopting the findings of the

state district court.2

In 2014, Thomas filed the instant federal petition pursuant to

28 U.S.C. § 2254, asserting, inter alia, that McLean’s statements at trial

amounted to an abandonment of Thomas in violation of Cronic. Applying the

deferential standards prescribed by the Antiterrorism and Effective Death

Penalty Act of 1996, the federal district court denied Thomas relief. The court

reasoned that Strickland, not Cronic, governed Thomas’s claim, and that,

under Strickland, Thomas failed to show McLean was constitutionally

ineffective or that Thomas was otherwise prejudiced. In 2018, another panel

of this court granted a certificate of appealability solely on Thomas’s Cronic

1 An intermediate Texas appellate court affirmed the judgment on direct appeal. In

so doing, however, it held that Thomas’s trial counsel’s closing arguments were professionally

incompetent in violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)

because they essentially conceded his client’s guilt, but appellate counsel had waived any

showing, pursuant to the other Strickland prong, of prejudice to Thomas.

2 That neither the state habeas court nor the TCCA addressed the state appellate

court’s holding regarding deficiency is rather odd, but since we exercise discretion to review

Thomas’s Cronic claim de novo, the discrepancy does not matter.

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claim3 and instructed the parties (after appointment of counsel for Thomas) to

address whether that claim was exhausted and adjudicated in state court, and

whether AEDPA applies.

II.

Thomas contends he exhausted his Cronic claim, but the state habeas

court failed to adjudicate the claim on the merits. Thus, according to Thomas,

the federal district court should have reviewed the claim de novo rather than

applying AEDPA deference. The State now concedes that Thomas exhausted

his claim. We therefore consider that issue waived and turn to the standard of

review question. See 28 U.S.C. § 2254(b)(3); Bledsue v. Johnson, 188 F.3d 250,

254 (5th Cir. 1999) (finding waiver when the State admitted that the petitioner

“ha[d] sufficiently exhausted his state remedies”).

Under AEDPA, “we must defer to the state habeas court unless its

decision ‘was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United

States.’” Haynes v. Cain, 298 F.3d 375, 379 (5th Cir. 2002) (en banc) (quoting

28 U.S.C. § 2254(d)(1)). But AEDPA only applies to claims that are

“adjudicated on the merits” in the state habeas proceedings. Johnson v.

Williams, 568 U.S. 289, 292, 133 S. Ct. 1088, 1091 (2013). If a claim is

properly raised but is not adjudicated on the merits, we review the claim de

novo. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).

Thomas argues the state habeas court failed to adjudicate his Cronic

claim on the merits, thus triggering de novo review, because the court cast its

decision in Strickland terms and failed to expressly reference the Cronic

standard. We presume the claim was adjudicated on the merits. See Johnson,

3Thomas did not brief the prejudice prong of Strickland on his appeal to this court,

and consequently, that issue was waived. In any event, prejudice could not be shown on the

record before us.

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568 U.S. at 301, 133 S. Ct. at 1096 (“When a state court rejects a federal claim

without expressly addressing that claim, a federal habeas court must presume

that the federal claim was adjudicated on the merits . . . .”). Although we are

not entirely convinced that Thomas has rebutted this presumption,4 Thomas’s

Cronic claim fails even when reviewed de novo.5

“Ordinarily, to prevail on an ineffective assistance of counsel claim, a

habeas petitioner must satisfy Strickland’s familiar two-part test.” Haynes,

298 F.3d at 380 (citing Strickland, 466 U.S. at 700, 104 S. Ct. at 2071). The

petitioner must show that (1) counsel’s “representation fell below an objective

standard of reasonableness”; and (2) “there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068.

Cronic created “a very limited exception to the application of Strickland’s two-

part test,” whereby prejudice is presumed “in situations that ‘are so likely to

prejudice the accused that the cost of litigating their effect in the particular

case is unjustified.’” Haynes, 298 F.3d at 380 (quoting Cronic, 466 U.S. at 658,

104 S. Ct at 2046). The Supreme Court has identified three such situations,

one of which Thomas relies on here. See Bell v. Cone, 535 U.S. 685, 695,

122 S. Ct. 1843, 1850 (2002). Specifically, prejudice is presumed when the

“petitioner is represented by counsel at trial, but his or her counsel ‘entirely

4 The allegations underlying Thomas’s relevant Strickland claim (that McLean

conceded guilt during summation and argued for a substantial sentence) are identical to

those underlying his Cronic claim. And the state habeas court’s reason for denying the

Strickland claim (that McLean’s statements were strategic) explains why the court did not

apply Cronic. See Haynes, 298 F.3d at 381 (“[S]trategic or tactical decisions are evaluated

under Strickland’s traditional two-pronged test for deficiency and prejudice.”). Thus, while

the state court could have expressly stated that “Thomas’s Cronic claim fails for the same

reason as his Strickland claim,” that finding seems implicit in its decision.

5“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo

review when it is unclear whether AEDPA deference applies . . . .” Berghuis v. Thompkins,

560 U.S. 370, 390, 130 S. Ct. 2250, 2265 (2010).

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fails to subject the prosecution’s case to meaningful adversarial testing.’”

Haynes, 298 F.3d at 380 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047).

Thomas argues he satisfies this exception based on McLean’s statements

during summation and sentencing. We disagree. As Cronic suggests—and we

have stressed—prejudice is not presumed unless an attorney entirely fails to

defend his client. See Bell, 535 U.S. at 695, 122 S. Ct. at 1851. Thus, in

Haynes, this court distinguished between “counsel’s failure to oppose the

prosecution entirely” and counsel’s failure to do so “at specific points during

trial.” 298 F.3d at 381. Prejudice is presumed only in the former scenario

because “it is as if the defendant had no representation at all.” Id. In the same

vein, Cronic applies to concessions only when they result in a “complete

abandonment of counsel”; that is, the attorney must concede “the only factual

issues in dispute.” Id. In contrast, particular strategic or tactical concessions,

such as those made to garner credibility with the jury at sentencing or on more

severe counts, are subject to Strickland. Id.

Here, McLean did not entirely fail to subject the prosecution’s case to

meaningful adversarial testing. As the district court detailed in its thorough

opinion, McLean actively advocated on Thomas’s behalf throughout trial. He

moved to suppress evidence. He cross-examined the State’s witnesses on their

identification of Thomas as the culprit, ultimately impeaching several of them

and prompting the arguably most critical witness to admit she lied to the

police. He also cross-examined the detectives involved in the underlying

investigation on their search and arrest of Thomas, as well as their subsequent

handling of evidence.

Moreover, McLean did not abandon Thomas by conceding the only

factual issues in dispute. Faced with overwhelming evidence of guilt, McLean

described the evidence as “really strong,” “substantial,” “persuasive,” and

“pretty powerful” during his summation at the end of the guilt/innocence phase

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of trial. But he also emphasized that the jury must look at the evidence and

twice admonished them to acquit “if you have a reasonable doubt” about

Thomas’s guilt. McLean pressed on the jury the weaknesses in the

prosecution’s case, emphasized the high burden of proof, and pointed to several

potential sources of reasonable doubt. When read in context, McLean’s

summation indicates that his comments were strategically made to maintain

credibility with the jury.

McLean’s sentencing arguments during the punishment phase confirm

this strategy.6 Testimony during sentencing established that Thomas had an

extensive criminal history, including nine felony and misdemeanor convictions,

three of them following this crime, and he was likely involved in drug

trafficking. This crime had devastating effects on the victim, who died from

complications caused by his wounds after testifying at the first trial. The

victim had survived, cared for by his mother, for several years in constant pain,

endured at least eight surgeries resulting from Thomas’s actions, and

ultimately succumbed to a morphine overdose. The prosecution was seeking a

life sentence.

Once again, to maintain credibility, McLean acknowledged these facts

and stated that he “would be a fool if [he] suggested” that Thomas did not

“deserve[] a pretty substantial sentence” that was more than the minimum of

fifteen years. McLean also successfully lodged objections during the

prosecution’s argument:

[THE PROSECUTION]: Asking a jury for a life

sentence is a big thing. And I recognize that. And it’s

a tough thing. It’s a tough thing for any jury to do, but

in this case, even you were looking at Deshun Thomas

and saying, buddy, give me something, give me some

6 McLean died after he tried this case and was never available for post-conviction

inquiry into the defense.

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reason why you don’t serve the maximum punishment

in this—

MCLEAN: Objection. That’s a comment on his failure

to testify.

THE COURT: Sustained.

[THE PROSECUTION]: Show us something—

THE COURT: Again, get away from that. They are

under no obligation to do anything.

And throughout the punishment phase, he continued to contest search issues

raised previously at trial and extensively cross-examined a police officer on a

more recent search. Ultimately, McLean’s strategy paid off: Thomas avoided

a life sentence.

Cronic does not proscribe defense counsel’s approach. See 466 U.S. at

656 n.19, 104 S. Ct. at 2045 n.19 (“Of course, the Sixth Amendment does not

require that counsel do what is impossible or unethical. If there is no bona fide

defense to the charge, counsel cannot create one and may disserve the interests

of his client by attempting a useless charade.”). But more importantly, no

Supreme Court case has applied Cronic to overturn a conviction solely because

of counsel’s alleged trial errors. In Bell, for instance, the Court contrasted

Strickland and Cronic, noting that those cases had been decided on the same

day and that Cronic applied only when counsel’s failure to mount a meaningful

defense was “complete.” 535 U.S. at 697, 122 S. Ct. at 1851. Counsel’s mere

failure to oppose the prosecution’s sentencing case “at specific points” did not

satisfy Cronic because the difference between that case and Strickland was a

“difference . . . not of degree but of kind.” Id. Consequently, the Court held,

counsel’s “failure to adduce mitigating evidence and the waiver of closing

argument”—during the sentencing stage of a capital case—“are plainly of the

same ilk as other specific attorney errors we have held subject to Strickland’s

performance and prejudice components.” Id. at 697–98 (collecting cases).

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Likewise, in Florida v. Nixon, the Court reiterated that Cronic is “a

narrow exception” to Strickland. 543 U.S. 175, 190, 125 S. Ct. 551, 562 (2004).

The Court then observed that “just how infrequently” Cronic will apply was

demonstrated in Cronic itself, where the Court refused to find such structural

error based on a claim of prejudicially incompetent representation by an

“inexperienced, underprepared attorney in a complex mail fraud trial.” Id.7

Nevertheless, pointing to our en banc decision in Haynes, Thomas

contends that Cronic applies because McLean’s statements do not qualify as a

“partial concession.” In Haynes, we held Cronic inapplicable to an attorney’s

strategic concession to a lesser-included offense in a multi-count indictment.

See Haynes, 298 F.3d at 382. In reaching that conclusion, we recognized that

“those courts that have confronted situations in which defense counsel

concedes the defendant’s guilt for only lesser-included offenses have

consistently found these partial concessions to be tactical decisions” and thus

not subject to Cronic. Id. at 381.

Thomas attempts to distinguish this case from Haynes by arguing that

he was facing one count, and McLean’s concession was therefore “full and

complete.” As noted, however, McLean did not concede the only factual issues

in dispute. In any event, Haynes was not so limited. “[T]he Supreme Court

[has] held that even defense counsel’s full concession of guilt is not necessarily

an indication that ‘counsel has entirely failed to function as the client’s

advocate . . . .’” Barbee v. Davis, 728 F. App’x 259, 264 (5th Cir. 2018)

(emphasis added) (quoting Nixon, 543 U.S. at 189–91, 125 S. Ct. at 560).

Indeed, we have stated that “counsel may make strategic decisions to

7 The Supreme Court’s more recent decision in McCoy v. Louisiana, 138 S. Ct. 1500

(2018) is not to the contrary. McCoy held that counsel violates the Sixth Amendment by

conceding a client’s guilt to the jury over the client’s objections. No issue was raised here

about Thomas’s objecting to McLean’s approach in his summation and sentencing arguments.

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acknowledge the defendant’s culpability and may even concede that the jury

would be justified in imposing the death penalty, in order to establish

credibility with the jury.” Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997).

The common thread is strategy. McLean’s statements did not amount to

a “complete” failure to mount a defense. Cronic does not apply.

For the foregoing reasons, the judgment of the district court denying

habeas relief is AFFIRMED.

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