Opposition Brief — Sedrick D. Russell, Petitioner v. J. Denmark

No. 23-5410

IN THE

Supreme Court of the United States

————

SEDRICK D. RUSSELL,

Petitioner,

v.

J. DENMARK,

Respondent.

————

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

————

BRIEF IN OPPOSITION

————

LYNN FITCH

Attorney General

ERIN E. RUTHERFORD

Special Assistant

Attorney General

Counsel of Record

JERROLYN M. OWENS

Special Assistant

Attorney General

MISSISSIPPI ATTORNEY

GENERAL’S OFFICE

P.O. Box 220

Jackson, MS 39205-0220

erin.rutherford@ago.ms.gov

(601) 359-3680

Counsel for Respondent

QUESTION PRESENTED

Did the Fifth Circuit err in ruling that petitioner is not entitled to federal

habeas relief on his complete-denial-of-counsel claim because (1) petitioner failed to

exhaust that claim in state court and (2) the claim is meritless?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................................................................. i

TABLE OF AUTHORITIES ......................................................................................... iii

OPINIONS BELOW ...................................................................................................... 1

JURISDICTION............................................................................................................. 1

STATEMENT ................................................................................................................. 1

REASONS FOR DENYING THE PETITION ............................................................ 10

CONCLUSION............................................................................................................. 22

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Anderson v. Harless,

459 U.S. 4 (1982) .................................................................................................... 11

Barker v. Wingo,

407 U.S. 514 (1972) .......................................................................................... 3, 5, 6

Bell v. Cone,

535 U.S. 685 (2002) ................................................................................................ 17

Black v. Davis,

902 F.3d 541 (5th Cir. 2018) ...................................................................... 12, 15, 16

Bryant v. Scott,

28 F.3d 1411 (5th Cir. 1994) .................................................................................. 20

Childress v. Johnson,

103 F.3d 1221 (5th Cir. 1997) .......................................................................... 20, 21

Duncan v. Henry,

513 U.S. 364 (1995) ................................................................................................ 11

Fusi v. O’Brien,

621 F.3d 1 (1st Cir. 2010) ....................................................................................... 16

Galvan v. Alaska Dept. of Corrections,

397 F.3d 1198 (9th Cir. 2005) ................................................................................ 16

Gray v. Netherland,

518 U.S. 152 (1996) ................................................................................................ 11

Huntley v. McGrath,

261 F. App’x 4 (9th Cir. 2007) ................................................................................ 16

Lucio v. Lumpkin,

987 F.3d 451 (5th Cir. 2021) (en banc) .................................................................. 11

Missouri v. Frye,

566 U.S. 134 (2012) ................................................................................................ 18

iv

Mitchell v. Mason,

325 F.3d 732 (6th Cir. 2003) ...................................................................... 18, 19, 20

Morris v. Slappy,

461 U.S. 1 (1983) .................................................................................................... 20

Nealy v. Cabana,

764 F.2d 1173 (5th Cir. 1985) ................................................................................ 20

O’Sullivan v. Boerckel,

526 U.S. 838 (1999) ................................................................................................ 13

Picard v. Connor,

404 U.S. 270 (1971) .......................................................................................... 11, 12

Reynolds v. Hepp,

902 F.3d 699 (7th Cir. 2018) ...................................................................... 13, 14, 15

Strickland v. Washington,

466 U.S. 668 (1984) ........................................................ 4, 5, 7-10, 12-16, 18, 20, 21

United States v. Cronic,

466 U.S. 648 (1984) ..................................................................................... 4, 5, 7-21

Washington v. Watkins,

655 F.2d 1346 (5th Cir. 1981) ................................................................................ 20

Constitutional Provision

U.S. Const. amend. VI ................................................................................................. 16

Statutes

28 U.S.C. § 1254 ............................................................................................................. 1

28 U.S.C. § 2254 ..................................................................................................... 11, 15

1

OPINIONS BELOW

The federal court of appeals’ opinion (Petition Appendix (App.) 1a-29a)

reversing the district court’s grant of federal habeas relief is reported at 68 F.4th 252.

The district court’s opinion granting habeas relief (App.30a-75a) is reported at 528

F. Supp. 3d 482. The Mississippi Supreme Court’s order denying post-conviction relief

(App.76a-78a) is unreported. The Mississippi Supreme Court’s order denying

petitioner’s request for discretionary review (App.79a) is reported at 80 So. 3d 111.

The Mississippi Court of Appeals’ order denying petitioner’s motion for rehearing

(App.80a) is unreported. The Mississippi Court of Appeals’ opinion affirming

petitioner’s convictions and sentences (App.81a-105a) is reported at 79 So. 3d 529.

JURISDICTION

The court of appeals entered its judgment on May 18, 2023. The petition for a

writ of certiorari was filed on August 15, 2023. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

STATEMENT

In 2009, a jury convicted petitioner Sedrick D. Russell of aggravated assault

and possessing a firearm as a felon. The trial court sentenced him as a habitual

offender to two concurrent life sentences. He challenged those convictions and

sentences on direct review, state collateral review, and federal habeas review. After

his state-court challenges failed, the district court granted him federal habeas relief.

The Fifth Circuit reversed. His petition seeks review of that reversal.

1. In December 2006, Michael Porter went to his girlfriend Lawanda Hawkins’

house. App.2a. Petitioner and others were also there. Ibid. Petitioner followed Porter

2

around the house that night, and Porter noticed a 9mm gun in petitioner’s pocket.

Ibid. When Porter went outside to get a bottle of gin from his car, “witnesses saw

[petitioner] walk out of the house ‘right behind’ Porter.” Ibid. As Porter reached into

his car for the liquor, “he was shot twice from behind in the leg with a 9mm pistol.”

Ibid. Nobody saw the shooting. Ibid. Petitioner “denied that he shot Porter” and

maintained that he left the scene before the shooting with “a friend known only as

‘Ron Ron.’” Ibid.

2. Police arrested petitioner two days later. App.2a. The public defender’s office

represented petitioner at his initial appearance and a January 2007 preliminary

hearing. App.2a-3a. Petitioner was held without bail and soon began filing pro se

speedy-trial motions. Ibid. In August 2007, a grand jury indicted him for aggravated

assault and possessing a firearm as a felon. App.3a. Petitioner’s public defender filed

two discovery motions, represented petitioner at his arraignment in November 2007,

and engaged in plea negotiations. Ibid.

At the arraignment, the trial court set petitioner’s trial for March 24, 2008.

Ibid. Petitioner then filed a pro se speedy-trial motion. App.3a. The court denied that

motion but “moved his trial date up to February 11, 2008.” Ibid. Petitioner’s trial did

not occur in February. App.4a. Instead, around that time, the trial court allowed the

public defender’s office to withdraw due to a conflict of interest and appointed a

private attorney (Don Boykin) to represent petitioner. Ibid. Boykin “promptly filed

several motions on [petitioner’s] behalf,” notified the prosecution of an intent to assert

an alibi defense, and sought a mental evaluation of petitioner “because of a letter

[petitioner] allegedly sent to Porter” that said “some very strange things about

3

hearing voices.” Ibid. The trial court ordered the requested evaluation and continued

the trial. Ibid. In October, petitioner was deemed competent to stand trial. Ibid.

Petitioner’s trial began in late January 2009. App.5a. Before trial, the court

heard Boykin’s motion to reconsider its denial of petitioner’s pro se speedy-trial claim.

Ibid. Petitioner testified that he was prejudiced during the 14 months that the public

defender’s office represented him because he “received no assistance from his lawyers

in locating” his alleged alibi witness, “‘Ron Ron.’” Ibid. The court denied that motion.

Ibid. Porter, three police officers, and others testified for the prosecution at trial. Ibid.

Petitioner testified in his defense and maintained that “‘Ron Ron’” had “picked him

up” from the scene of the shooting “before Porter was shot.” Ibid.

The jury convicted petitioner on both charges. App.5a. Due to “four previous

convictions,” petitioner “was sentenced as a habitual offender to two life sentences

without the possibility of parole.” Ibid.

The Mississippi Court of Appeals affirmed petitioner’s convictions and

sentences on direct appeal. App.5a-6a, 81a-105a. The court rejected petitioner’s

speedy-trial claim after weighing the factors articulated in Barker v. Wingo, 407 U.S.

514 (1972). App.5a-6a, 89a-93a. The court reasoned that the length of pretrial delay

was “presumptively prejudicial,” that both sides contributed to the delay, and that

petitioner “repeatedly asserted” his speedy-trial right. App.5a-6a; see App.90a-91a.

But the court held that petitioner did not show prejudice from the delay, ruling that

petitioner’s claims of pretrial anxiety and a lost alibi witness “lack[ed] support.”

App.6a (alteration in original); see App.91a-93a. Weighing the factors, the court

4

upheld the trial court’s denial of petitioner’s speedy-trial motion. App.6a; see App.93a.

The Mississippi Supreme Court denied discretionary review. App.6a, 79a.

On state post-conviction review, petitioner filed a pro se petition for relief that

asserted speedy-trial and ineffective-assistance-of-counsel claims. App.6a; see

App.108a-113a. His ineffective-assistance charges did not cite Strickland v.

Washington, 466 U.S. 668 (1984), which holds that a defendant is denied his

constitutional right to effective assistance of counsel when his counsel performs

deficiently and that performance prejudices the defendant, or United States v. Cronic,

466 U.S. 648 (1984), which holds that a defendant is denied his constitutional right

to effective assistance of counsel when he is denied counsel at a critical stage of a

criminal proceeding. App.23a; see App.108a-111a. And the petition alleged the

elements only of a Strickland claim—deficient performance and prejudice. Petitioner

faulted the public defender’s and Boykin’s performances, “twice labeled his counsel’s

performance ‘deficient,’” and “specifically and repeatedly alleged prejudice from the

deficient performance.” App.23a-24a; see App.6a, 109a-111a. The Mississippi

Supreme Court rejected the speedy-trial claim on res judicata grounds and held that

the ineffective-assistance claim “fail[ed] to meet both prongs of Strickland.” App.77a;

see App.6a.

3. Petitioner next filed a pro se federal habeas petition that reasserted his

speedy-trial and ineffective-assistance claims. App.7a. A magistrate judge viewed his

ineffective-assistance allegations as Strickland-based and recommended dismissing

the petition. Ibid. After petitioner filed pro se objections, the district court appointed

petitioner’s current counsel to further prosecute his petition. Ibid. Counsel filed

5

amended objections, claiming (among other things) that the magistrate judge erred

in ruling that petitioner “failed to prove prejudice under Strickland.” Ibid.

The district court granted habeas relief on both claims. App.7a-8a; see 30a-75a.

On the speedy-trial claim, the court’s “primary basis” for concluding that “the Barker

factors supported [petitioner’s] speedy-trial claim” was its view that petitioner “had

faced a systemic breakdown in the public defender system.” App.7a; see App.49a-54a.

That, in the court’s view, caused “delay due to the appointment of [petitioner’s]

successive counsel” and “frustrated” petitioner’s “ability to locate” his alleged “alibi

witness” named “Ron Ron.” App.8a; see App.56a-62a. The court thus ruled that the

state court’s denial of the speedy-trial claim was “objectively unreasonable.” App.8a;

see App.68a. But the court “limited” its ruling to petitioner’s “aggravated-assault

conviction” because the lack of “Ron Ron’s testimony” would not have prejudiced

petitioner’s defense on the “felon in possession charge.” App.8a; see App.64a.

On the ineffective-assistance claim, the district court read petitioner’s “habeas

complaint” as asserting a Cronic claim, not a Strickland claim. App.8a; see App.68a75a. Under that view of the claim, the court ruled that petitioner “faced a complete

denial of counsel under Cronic while he was represented by the public defenders.”

App.8a; see App.72a-75a. That showed (the district court ruled) that the state

supreme court’s “application” of Strickland to petitioner’s ineffective-assistance claim

was an “erroneous and unreasonable application” of “Cronic.” App.8a; see App.75a.

Reasoning that “Cronic’s presumption of prejudice” applies to both of petitioner’s

claims, the district court granted petitioner full habeas relief. App.8a; see App.75a.

6

3. The court of appeals unanimously reversed the district court’s grant of

habeas relief and rendered judgment for respondent. App.1a-29a.

a. The court of appeals first rejected petitioner’s speedy-trial claim. App.10a21a. The court of appeals began by emphasizing that the district court erroneously

applied “de novo review” rather than the deferential view that applies to federal

habeas claims under AEDPA. App.10a-11a. The court of appeals ruled that the

Mississippi Court of Appeals reasonably applied the four “Barker factors” to deny

petitioner’s speedy-trial claim. App.11a-21. Of note here, the court explained that

reasonable jurists could reject petitioner’s claim of prejudice from an alleged “lost

alibi witness” because that claim “‘lack[ed] support’ in the record.” App.20a (quotation

marks and alteration in original). Petitioner’s “account of an alibi witness” named

“Ron Ron” was “vague and unspecific, as [petitioner] did not even know his last

name.” Ibid. The court of appeals thus concluded, “as the state court did,” that

“reasonable jurists could reject [petitioner’s] unsupported, vague, and changing story

about “‘Ron Ron.’” Ibid. After all, the “only evidence” of Ron Ron’s “existence” came

from petitioner’s “own testimony,” and he gave “varying explanations over time for

how he lost track of ‘Ron Ron.’” Ibid. In any event, petitioner “testified extensively

during his trial about ‘Ron Ron,’” so “the jury had an opportunity to consider” the alibi

and “rejected it,” apparently due to the “more persuasive” “testimony of multiple

witnesses who observed [petitioner] immediately before [the victim] was shot.” Ibid.

That showed that “reasonable jurists” could determine that “Ron Ron’s” testimony

“would not have changed the jury’s verdict.” App.20a-21a.

7

b. The court of appeals next rejected the district court’s Cronic ruling for two

independent reasons: lack of exhaustion and lack of merit. App.21a-28a.

First, the panel ruled that the district court erred by granting petitioner

habeas relief on a Cronic claim that he never exhausted in state court. App.21a-24a.

To start, the panel explained the differences between a Strickland claim and a

Cronic claim. App.21a-22a. Ineffective-assistance-of-counsel claims are “ordinarily

evaluated” under Strickland’s “two-part test,” which requires proving that “counsel’s

performance was deficient” and that “the deficient performance prejudiced the

defense.” App.21a; see Strickland v. Washington, 466 U.S. 668, 687 (1984).

Ineffective-assistance claims based on Cronic fall within “a very limited exception to

the application of Strickland’s two-part test.” App.22a. That “exception” applies only

when “the circumstances leading to counsel’s ineffectiveness are so egregious that the

defendant was in effect denied any meaningful assistance at all.” Ibid.; see United

States v. Cronic, 466 U.S. 648, 659 (1984). Importantly, “[t]o sustain a Cronic claim,

such denial of counsel must occur at a critical stage of a defendant’s proceedings.”

App.22a; see 466 U.S. at 659. And “[v]ery different results flow from whether [a]

defendant raises a Strickland or Cronic claim.” App.22a. A Strickland claim requires

the defendant to “prove prejudice,” and “setting aside a conviction under Strickland”

is decided “on a case-by-case basis.” Ibid. But on a Cronic claim “prejudice is

presumed,” and a successful claim “requires that the conviction be overturned.” Ibid

(cleaned up).

Next, the panel addressed the “dispute[d]” issue of whether petitioner “pled his

ineffective-assistance claim in the state courts under Strickland or Cronic.” App.22a.

8

The “reviewing courts” had “disagreed” on that point: the state supreme court

analyzed the claim under Strickland but the district court “discerned a Cronic claim.”

Ibid.; see App.68a-75a. That distinction “matter[ed],” as the court of appeals observed,

“because AEDPA requires exhaustion”: A “state prisoner who does not fairly present

a claim to a state habeas court—specifying both the legal and factual basis for the

claim—may not raise that claim in a subsequent federal proceeding.” App.22a.

AEDPA’s fair-presentment rule “require[s] a state prisoner to present the state courts

with the same claim he urges upon the federal courts.” App.23 (alteration and

emphasis in original). Thus, under that fair-presentment rule, the panel “look[ed] to”

the “substance” of petitioner’s “state habeas petition to ascertain whether he

assert[ed] that he received incompetent counsel” (a Strickland claim) or no counsel

“at all” (a Cronic claim). Ibid. (alteration in original). If petitioner “did not assert a

Cronic claim in state court” the district court could not grant him “habeas relief based

on Cronic.” Ibid.

Applying the fair-presentment rule, the panel concluded that petitioner’s statecourt pleading asserted a Strickland claim. App.23a-24a. The panel initially noted

that petitioner’s state-court pleading “mentions neither Strickland nor Cronic” but

chiefly complained that he was “in custody” for “approximately (14) months after his

arrest” “without being contacted by an attorney.” App.23a. That “could be read,” the

panel explained, to “alleg[e] poor lawyer-client communication (under Strickland) or

a complete denial of counsel (under Cronic).” App.23a. But the petition “twice labeled

his counsel’s performance ‘deficient’”; “challenged” both “his public defenders’

performance” and his later appointed counsel’s performance; and “specifically” and

9

“repeatedly” alleged “prejudice from the deficient performance.” App.23a-24a; see

App.108a-111a. Thus, under the fair-presentment rule, the panel “read” petitioner’s

“state petition as alleging a Strickland claim,” as the state supreme court had done.

App.24a.

Petitioner’s federal-court filings bolstered the conclusion that he pursued only

a Strickland claim. The panel noted that petitioner alleged the “same” Strickland

claim that he made in state court by charging his public defenders with “deficient”

performance and complaining of “prejudice” due to that performance. App.24a. And

his “amended objections” (filed by his appointed counsel) to a magistrate judge’s

recommendation to dismiss his petition treated his claim “as arising under

Strickland.” Ibid.

Because petitioner asserted only a Strickland claim—and never presented a

Cronic claim—in state court, the panel ruled that he never exhausted a Cronic claim.

Ibid. The district court was therefore not allowed to consider that claim. Ibid. So the

panel held that the district court erred in granting habeas relief on that basis. Ibid.

Second, and independently, the panel ruled that petitioner’s Cronic claim

failed on the merits even if he had exhausted it in state court. App.25a-28a.

In evaluating that claim, the court of appeals assessed whether petitioner was

“effectively denied counsel” and whether that “denial occurred at a critical stage of

the proceedings.” App.25a-26a. The court ruled that petitioner was not effectively

“denied any meaningful assistance at all.” App.26a. His initial lawyers appeared “at

his preliminary hearing and arraignment,” “filed discovery motions on his behalf,”

and “engaged in apparent plea bargaining.” Ibid. Those “efforts” may have been

10

“perfunctory” and raised attorney-performance concerns. Ibid. But his lawyers’

actions, “even if inadequate or ineffectual,” did not “amount to [a] complete denial of

counsel” under Cronic. Ibid. And even if petitioner were “effectively denied counsel,”

he failed to prove that occurred at a “critical stage” of the proceedings. Ibid. The court

of appeals rejected the district court’s view that “broadly” construed “the period

between the appointment of counsel and the start of trial” as a “critical stage.” Ibid.

The court of appeals explained that “[n]either the Supreme Court nor [the Fifth

Circuit] has ever held that the entire pretrial period is a critical stage.” App.26a-27a

(emphasis in original). Instead, this Court’s precedents have designated “specific”

pretrial events as “critical stages.” App.27a. The district court’s contrary conclusion

that the “whole pretrial period” was a “critical stage” was thus “overreach.” Ibid.

c. Last, the panel determined that petitioner’s ineffective-assistance claim

“quickly collapse[d]” when treated “as arising under Strickland.” App.28a. The state

court had rejected petitioner’s claim, holding that he “fail[ed] to meet both prongs

under Strickland.” Ibid. Under “doubly deferential” AEDPA review, the panel

recognized that a failure on either the deficient-performance or prejudice prong

doomed the claim. App.28a-29a. At minimum, petitioner had failed to establish

prejudice—his prejudice arguments relied on the same lost-alibi-witness argument

that failed on his speedy-trial claim. App.29a.

REASONS FOR DENYING THE PETITION

Petitioner seeks review of two questions: (1) whether “a pro se petitioner

alleging complete denial of counsel specifically [must] cite Cronic to exhaust his claim

in the state court,” and (2) whether prejudice is presumed “[i]f a detained criminal

11

defendant has no communication with a lawyer for 14 months after arrest.” Pet. ii.

This case does not present either question or raise any conflict with this Court’s

precedents or with the precedents of other circuits. The petition should be denied.

1. The court of appeals correctly ruled that petitioner failed to exhaust his

Cronic claim. App.21a-24a. Further review of that ruling is not warranted.

a. The court of appeals was correct to rule that petitioner failed to exhaust a

Cronic claim. Contra Pet. 12-15, 16-17.

Under AEDPA, a state prisoner’s federal habeas petition “shall not be granted

unless it appears that ... the applicant has exhausted the remedies available in the

courts of the State.” 28 U.S.C. § 2254(b)(1)(A); App.22a. A habeas petitioner must

“fairly present[ ]” his “federal claim” in state court before seeking federal habeas

relief. Picard v. Connor, 404 U.S. 270, 275 (1971). That fair-presentment rule requires

a petitioner to “present the state courts with the same claim he urges upon the federal

courts.” App.23a (citing Lucio v. Lumpkin, 987 F.3d 451, 464 (5th Cir. 2021) (en banc)

(quoting Picard, 404 U.S. at 276)) (emphasis in original). The petitioner does not have

to “cit[e] book and verse on the federal constitution.” Picard, 404 U.S. at 278. But he

cannot point to the “mere similarity” of claims raised in his state and federal

petitions. Duncan v. Henry, 513 U.S. 364, 366 (1995). And “[i]t is not enough” to

present merely “the facts necessary to support [a] federal claim” in state court.

Anderson v. Harless, 459 U.S. 4, 6 (1982). Rather, a claim made in state court must

“reference” a “specific federal constitutional guarantee” and state “the facts that

entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 (1996). In

determining whether a petitioner satisfied the fair-presentment rule, courts look to

12

the “substance” of the petitioner’s state-court pleadings. App.23a (citing Black v.

Davis, 902 F.3d 541, 546 (5th Cir. 2018)); accord Picard, 404 U.S. at 278.

The court of appeals soundly applied the fair-presentment rule in this case to

conclude that petitioner failed to exhaust a Cronic claim. To start, the panel

recognized the key differences between Strickland and Cronic claims: Strickland

requires showing “deficient performance” and “prejudice[ ]” (App.21a); Cronic

requires showing that counsel “in effect” provided no “meaningful assistance at all”

at a “critical stage” of the proceedings (App.22a). The panel then analyzed the

“substance” of petitioner’s state petition to determine whether he asserted “that he

received incompetent counsel” (Strickland) or no counsel “at all” (Cronic). App.23a.

The panel observed that the state petition was “not completely clear,” that it

“mention[ed] neither Strickland nor Cronic,” and that its “chief complaint” could be

viewed as either claim. App.23a; see Pet. 12. But the petition alleged “deficient”

performance (by both petitioner’s public defenders and later-appointed counsel) and

“specifically” and “repeatedly” alleged “prejudice from the deficient performance.”

App.23a-24a. Those are the hallmarks of a Strickland claim—not a Cronic claim,

which turns on complete lack of counsel at a “critical stage” and requires no proof of

prejudice. The panel thus soundly concluded that petitioner made and exhausted only

a Strickland claim. See Picard, 404 U.S. at 277; App.68a-75a.

b. Petitioner argues that this Court should grant certiorari to decide whether

“a pro se petitioner alleging complete denial of counsel specifically [must] cite Cronic

to exhaust his claim in the state court.” Pet. ii; see Pet. 12-17. This case does not

present that question. The court of appeals did not hold that petitioner had to cite

13

Cronic to exhaust his Cronic claim. App.21a-24a. Nor did that court adopt a rule that

a “pro se habeas petitioner” who alleges the “facts” asserted here must “specifically

cite[ ] Cronic” to “fairly present his claims to a state court.” Pet. 12. Petitioner did not

allege the facts to support or present a Cronic claim. So this case is not a vehicle for

addressing the first question identified in the petition.

c. Petitioner’s arguments for further review lack merit. Pet. 13-17.

First, petitioner contends that the court of appeals’ decision conflicts with this

Court’s precedents. Pet. 13-14. Petitioner acknowledges that this Court applies a “fair

presentment” exhaustion requirement. Pet. 13; O’Sullivan v. Boerckel, 526 U.S. 838,

842-49 (1999). As explained, the court of appeals invoked and soundly applied that

fair-presentment rule. App.22a-24a. Petitioner claims that “[n]o decision of this Court

requires a habeas petitioner who otherwise sufficiently alleges a violation of a

constitutional right to also cite a specific case to support his claim—much less

distinguish and choose between two cases that are not even inconsistent.” Pet. 14; see

Pet. 12. But as explained, the court of appeals imposed no such requirement—which

is why petitioner can quote nothing from that court’s opinion imposing such a rule.

That court’s decision turned on a case-specific determination that petitioner made a

Strickland claim but not a Cronic claim. App.23a-24a. Indeed, if the court of appeals

had ruled that petitioner had to “cite a specific case” to exhaust a claim then it would

have ruled that petitioner failed to exhaust even a Strickland claim: petitioner’s state

post-conviction petition, after all, “mentions neither Strickland or Cronic.” App.23a.

Second, petitioner contends that the court of appeals’ decision conflicts with

the Seventh Circuit’s decision in Reynolds v. Hepp, 902 F.3d 699 (7th Cir. 2018).

14

Pet. 14. That is not so. In Reynolds, the Seventh Circuit ruled that a habeas petitioner

did not “fairly present[ ]” a Cronic claim where he (1) “did not rely on cases addressing

the complete denial of counsel,” (2) “framed the violation as conflict of interest” under

Cuyler v. Sullivan, 446 U.S. 335 (1980), and (3) “did not allege that he lacked an

attorney.” 902 F.3d at 706. The Seventh Circuit thus applied the fair-presentment

rule to conclude, on the facts before it, that the habeas petitioner failed to exhaust a

Cronic claim. The court of appeals did the same thing here. It applied the fairpresentment rule to assess the substance of petitioner’s claim. App.23a-24a.

Petitioner did not cite cases addressing the complete denial of counsel (he cited no

cases). App.23a, 108a-111a. His state-court pleading did not frame the alleged

“violation” as a complete denial of counsel or claim presumptive prejudice—the

markers of a Cronic claim. Instead, he insisted that his attorneys’ performance was

“deficient” and “prejudiced” him—a Strickland claim. App.109a-111a. He also did not

claim that he lacked an attorney; he alleged that his attorney failed to communicate

with him. App.109a-111a. The court of appeals’ application of the fair-presentment

rule squares with the Seventh Circuit’s decision in Reynolds. App.23a-24a.

Petitioner also contends (Pet. 14) that the decision below conflicts with the

Seventh Circuit’s statement that “[t]he fair presentment rule is not so rigid that a pro

se petitioner needed to cite Cronic or any other denial-of-counsel case by name.” 902

F.3d at 706. But again, the court of appeals here never held that a petitioner must

cite any case by name. It held that petitioner exhausted his Strickland claim,

App.24a—even though petitioner “mention[ed] neither Strickland nor Cronic” in his

state post-conviction petition, App.23a.

15

Petitioner further contends (Pet. 14) that the Seventh Circuit rejects the Fifth

Circuit’s view that “Strickland and Cronic claims are distinct for exhaustion

purposes.” App.23a. But in Reynolds the Seventh Circuit emphasized that Cronic

claims are distinct from other ineffective-assistance claims. See 902 F.3d at 704-05.

As the Seventh Circuit explained, “the argument that [petitioner] was denied counsel

altogether is a different legal theory governed by a different legal rule” than the

argument (which the petitioner there did make) that the State “denied him the

‘effective assistance of counsel’ by creating ‘an actual conflict of interest’ between him

and his counsel.” Id. at 705. And although the Seventh Circuit suggested that “a

petitioner could exhaust a denial of counsel claim by describing facts that amount to

a complete denial of counsel and citing Strickland,” id. at 706, it recognized that a

petitioner must say enough to “fairly present” a complete-denial-of-counsel claim, id.

at 705—something that the petitioner in Reynolds (see id. at 705-06) and petitioner

here (App.23a-24a) both failed to do.

Third, petitioner contends that “[n]o other circuit court” has required that “a

pro se habeas petitioner” who asserts petitioner’s “facts” must also “specifically cite

Cronic to satisfy” section 2254(b)(1)’s exhaustion requirement. Pet. 15. But petitioner

does not show any other case on similar “facts.” And again, the court of appeals here

did not rest its holding on petitioner’s failure to cite Cronic. It rested its holding on a

careful assessment of the substance of petitioner’s state-court briefing, which showed

that petitioner exhausted a Strickland claim only. App.23a-24a. The cases that

petitioner cites (Pet. 15) show at most that sometimes the exhaustion question is even

easier than it is here. See Black v. Davis, 902 F.3d 541, 546 (5th Cir. 2018)

16

(petitioner’s filings “[we]re replete with allegations that his trial counsel was

incompetent, unreasonable, and rendered deficient performance” and “[e]ven

liberally construed” did not “contend he was constructively denied counsel” to support

a Cronic claim) (quotation marks omitted); Fusi v. O’Brien, 621 F.3d 1, 7 (1st Cir.

2010) (state-court petition that “relie[d] exclusively upon the standard two-prong

Strickland test,” cited Strickland five times, and never “argue[d] or even impl[ied]”

that petitioner was “entitled to a presumption of prejudice” exhausted a Strickland

claim); Huntley v. McGrath, 261 F. App’x 4, 6 (9th Cir. 2007) (state-court briefs that

were “devoted exclusively to establishing actual ineffectiveness of counsel and

affirmatively proving prejudice under Strickland” and made “a passing reference to

having received absolutely no assistance of counsel” at a hearing failed to exhaust a

Cronic claim); Galvan v. Alaska Dept. of Corrections, 397 F.3d 1198, 1205 (9th Cir.

2005) (petitioner failed to exhaust a Sixth Amendment-based ineffective-assistance

claim where she only asserted a state-law violation in state court). Nothing about

these cases undercuts or conflicts with the Fifth Circuit’s ruling here.

Last, petitioner argues that until the decision below, the Fifth Circuit had

required a habeas petitioner to present only “the substance” of a claim in state court.

Pet. 16. But that is all the panel required here. Again, the panel’s exhaustion

assessment relied on the substance of petitioner’s state-court petition. App.23a-24a.

That substance revealed a Strickland claim by repeatedly claiming deficient

performance and prejudice. App. 23a-24a; accord App.109a-111a; supra 11-12.

In short: In ruling on exhaustion, the court of appeals invoked and soundly

applied the correct rule of law. Petitioner has shown no error or conflict of decision,

17

seeks review of a question that this case does not raise, and at best seeks factbound

error correction rather than review of an important and recurring legal question. This

Court should deny review on the exhaustion question.

2. The court of appeals rejected petitioner’s Cronic claim on the alternative

ground that the claim lacked merit. App.25a-28a. Further review of that ruling is not

warranted.

a. The panel correctly ruled that petitioner’s Cronic claim is meritless. Contra

Pet. 18-20.

To prevail on a Cronic claim, a petitioner must establish an effective “deni[al]”

of “counsel” at a “critical stage” of the proceedings. 466 U.S. at 659. A “critical stage”

“denote[s] a step of a criminal proceeding” that holds “significant consequences for

the accused.” Bell v. Cone, 535 U.S. 685, 696 (2002).

Petitioner failed to satisfy either Cronic element. He was not effectively denied

counsel at any time before trial. Cronic, 466 U.S. at 659. He had counsel at every

point during the pretrial process. His initial public defenders “made appearances at

his preliminary hearing and arraignment,” “filed discovery motions on his behalf,”

and “engaged in apparent plea bargaining.” App.26a. Although those “efforts

appear[ed] purfunctory” and his defenders may have deficiently failed to “make

reasonable investigations in preparation for trial,” ibid., that does not amount to a

“total[ ]” absence of counsel or an “entire[ ] failure to subject the prosecution’s case to

meaningful adversarial testing” under Cronic. 466 U.S. at 659 & n.25. And petitioner

was never denied counsel at any “critical stage” of his criminal proceedings. “Critical

stages”

include

discrete

pretrial

events:

“arraignments,”

“postindictment

18

interrogations,” “postindictment lineups,” “the entry of a guilty plea,” and “pleabargain” negotiation. Missouri v. Frye, 566 U.S. 134, 140-41 (2012). Petitioner has

never identified any recognized “critical stage” where he was denied counsel before

or during his trial. In short, as the court of appeals concluded, petitioner failed to

establish “either predicate” of a Cronic claim. App.28a; see App.25a-28a.

b. Petitioner argues that this Court should review the court of appeals’ merits

rejection of his Cronic claim. Pet. 17-24. None of his arguments withstands scrutiny.

First, petitioner contends that the court of appeals’ decision conflicts with this

Court’s precedents. Pet. 18-20. As explained above, however, the court of appeals

soundly applied this Court’s precedents to reject petitioner’s Cronic claim. Petitioner

does not identify any decision of this Court that conflicts with the panel’s factbound

application of those precedents. Petitioner instead contends that this Court’s

precedents recognize “critical decisions” that counsel must make “pretrial,” including

decisions on “consultation,” “investigation,” and “preparation.” Pet. 19. But those

“critical” pretrial decisions present issues that are evaluated under Strickland. See

Cronic, 466 U.S. at 657 n.20; Strickland, 466 U.S. at 692-96. And the panel did just

that—it analyzed and rejected petitioner’s failure-to-communicate-and-resultinglost-alibi-witness claim under Strickland’s deficiency-and-prejudice test. App.28a29a.

Second, petitioner contends that the decision below conflicts with the Sixth

Circuit’s decision in Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003). Pet. 20-21. That

is not so. Mitchell held that Cronic “govern[ed]” petitioner’s ineffective-assistance

claim where counsel “utterly failed” to provide any assistance before trial. Id. at 744.

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Counsel had “met” with his client for only “six minutes over the seven-month period

before trial,” never “visited him once in prison,” and was “suspended from practicing

law for the month preceding trial.” Id. at 735, 742, 744. And the petitioner repeatedly

requested new counsel, which the trial court denied. Id. at 735. So the Sixth Circuit

ruled that the petitioner was “denied the presence of counsel during the critical pretrial stage” and awarded habeas relief under Cronic. Id. at 742; see id. at 741-44.

The facts are materially different in this case, which is why the court of appeals

reached a different result. Petitioner was not even arguably deprived of effective

assistance for the “entire” period of time preceding his trial. Early in that period

petitioner’s public defenders performed a few pretrial tasks and “nothing” shows they

investigated his case. App.26a. But the trial court here (unlike in Mitchell) replaced

petitioner’s initial counsel well before trial. App.4a. That gave petitioner

constitutionally effective representation—and he suffered no prejudice from his

public defenders’ prior performance. App.18a-21a, 28a-29a. Those circumstances

separate petitioner’s case from Mitchell and Cronic’s effective-denial-of-counsel

rubric. Mitchell also made sweeping statements on “critical” stages when assessing

the “critical pre-trial period” involved there. See 325 F.3d at 737, 742. But those

statements were tied to Mitchell’s circumstances. The petitioner there was

constructively denied counsel for the entire seven-month period from initial

appointment through trial. See id. at 742-43. But petitioner here was appointed new

counsel who provided him constitutionally effective representation at trial and in the

many months leading up to it. App.4a-5a. Mitchell recognized that those

circumstances would have made all the difference in that case. See 325 F.3d at 744

20

(distinguishing the Mitchell petitioner’s circumstances from Morris v. Slappy, 461

U.S. 1 (1983), which rejected an ineffective-assistance claim involving “replacement

counsel”). This case presented different circumstances. There is no conflict of decision.

Third, petitioner contends that the decision below departs from prior Fifth

Circuit precedent. Pet. 22-23. But any intra-circuit conflict does not warrant this

Court’s review. And there is no such conflict.

The decision below does not conflict with Fifth Circuit decisions on “the

essentialness of pretrial consultation and investigation.” Pet. 22 (citing Bryant v.

Scott, 28 F.3d 1411, 1415 (5th Cir. 1994); Nealy v. Cabana, 764 F.2d 1173, 1177 (5th

Cir. 1985); and Washington v. Watkins, 655 F.2d 1346, 1355 (5th Cir. 1981)). Those

cases show that the public defenders in this case may have performed deficiently by

failing to investigate or interview witnesses. But they do not show that any such

failures amount to effective denial of counsel under Cronic. Bryant and Nealy

analyzed those issues for deficient performance under Strickland. Bryant, 28 F.3d at

1414-15; Nealy, 764 F.2d at 1177. And Washington does not hold that an alleged

pretrial failure to investigate makes for a Cronic claim. That pre-Strickland/Cronic

case rejected a petitioner’s deficient-investigation claims, explaining that the “duty

to investigate” is “far from limitless” such that “not every breach thereof” means that

“counsel has failed to render reasonably effective assistance.” 655 F.2d at 1356.

The court of appeals’ decision also comports with Childress v. Johnson, 103

F.3d 1221 (5th Cir. 1997). Contra Pet. 22-23. In Childress, the claimant had “stand

by” counsel at his plea hearing who was “appointed” to “waiv[e] the defendant’s right

to a jury trial.” 103 F.3d at 1223, 1226. The counsel appointed to that limited role

21

provided no meaningful assistance whatsoever (effective denial of counsel) at the plea

hearing (a critical stage). Id. at 1230-32. That established a Cronic violation. Id at

1232. That does not help petitioner here. Petitioner’s public defenders represented

him at his preliminary hearing and initial appearance, filed discovery motions, and

engaged in plea negotiations. App.26a. He was never denied counsel at a critical

stage, as a Cronic claim requires. And his public defenders’ alleged shortcomings

might have been deficient performance under Strickland—but that did not prejudice

him at trial and he has not sought review of that ruling. See App.18a-21a, 28a-29a.

Last, petitioner contends that the decision below “convert[s] the appointment

of counsel into a sham” and that “the law does not require that an indigent criminal

defendant wait 14 months to talk to a lawyer about his case.” Pet. 24; see Pet. 23-24.

The Fifth Circuit’s decision does no such things. Petitioner was not forced to trial

without constitutionally effective counsel: he had competent counsel at trial. App.4a5a. Again, as the court of appeals held, petitioner failed to prove that “deficient

performance” by his initial counsel prejudiced his trial under Strickland. App.28a;

see App.18a-21a, 28a-29a. He has not sought review of that ruling. And the panel did

not hold that lawyers may permissibly delay in communicating with criminal

defendants for months on end. Contra Pet. 24. The court of appeals held that, in the

circumstances here, petitioner failed to surmount the high bar for a Cronic claim. Its

decision honored Cronic and Strickland—and does not warrant further review.

c. Finally: This Court’s consideration of petitioner’s second question

presented—whether prejudice is presumed “[i]f a detained criminal defendant has no

communication with a lawyer for 14 months after arrest”—makes a difference only

22

in this case if petitioner prevails on the first question presented—the exhaustion

argument. Pet. ii. Because review is not warranted on the first question, that alone

is plenty of reason to deny review on the second question.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

LYNN FITCH

Attorney General

ERIN E. RUTHERFORD

Special Assistant

Attorney General

Counsel of Record

JERROLYN M. OWENS

Special Assistant

Attorney General

MISSISSIPPI ATTORNEY

GENERAL’S OFFICE

P.O. Box 220

Jackson, MS 39205-0220

erin.rutherford@ago.ms.gov

(601) 359-3680

Counsel for Respondent

November 17, 2023