Opposition Brief — Cockrell, Director, Texas Department of Criminal Justice, Institutional Division v. Burdine

1) Sopreme Coup US.

No.__94 495 SEP 2 12001

Jn the Supreme Court of the United States

JANIE COCKRELL, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Petitioner,

CALVIN JEROLD BURDINE,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Fifth Circuit

PETITION FOR WRIT OF CERTIORARI

JOHN CORNYN JULIE CARUTHERS PARSLEY

Attorney General of Texas Solicitor General

HowaArp G. BALDWIN, JR. Counsel of Record

First Assistant Attorney S. KYLE DUNCAN

General Assistant Solicitor General

MICHAEL T. MCCAUL GENA BLOUNT BUNN

Deputy Attorney General for Chief, Capital Litigation

Criminal Justice Division

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

COUNSEL FOR PETITIONER

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This is a capital case.

QUESTIONS PRESENTED

i.

Should prejudice be presumed when defense counsel

intermittently “dozed and actually fell asleep” during

portions of trial?

ii.

If prejudice must be presumed under such circumstances,

may that rule be retroactively applied on habeas review

under Teague v. Lane, 489 U.S. 288 (1989)?

TABLE OF CONTENTS

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Citation of United States Court of Appeals’s Opinion ....... l

Basis Gor Rte ok 6 acs cen eb ns oe nen eeaeees l

Constitutional Provision Involved ............. wri ree 2

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Summary OC AGUUINONR 65k 6 ccd cdwhanenann ree ee 7

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I. The Second, Fifth, and Ninth Circuits Have Created

Conflicting Tests for Analyzing Counsel’s Lapses

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II. State and Federal Courts Conflict Over Whether

Counsel’s Temporary Absences from Trial Are

Automatically Reversible or Subject to Harmless

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III. Intermittent Sleeping Is Indistinguishable from Other

Attorney Impairments Analyzed Under the Traditional

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Came. ng ck da ca oe nee 21

INDEX OF AUTHORITIES

Cases

Bellamy v. Cogdell, 974 F.2d 302 (CA2 1992) ............ 11

Buckelew v. United States, 575 F.2d 515 (CAS 1978)....... 20

Burdine v. Johnson, 231 F.3d 950 (CAS 2000) ............. 6

Burdine v. Johnson, 66 F .Supp.2d 854 (S.D.Tex. 1999) .... 5,6

Burdine v. State, 719 S.W.2d 309 (Tex. Crim. App. 1986) .. 2-4

Burdine v. Texas, 480 U.S. 940 (1987) ................... 4

Burdine v. Texas, 515 U.S. 1107 (1995) .................. 5

Burnett v. Collins, 982 F.2d 922 (CAS 1993) ............. 20

Calvin Jerold Burdine v. Gary L. Johnson, _ F.3d __, 2001

WL 914267 (CAS Aug. 13,2001) ............... passim

Carter v. Sowders, 5 F.3d 975 (CA6 1993) ............... 14

Ex parte Burdine, No. 16,725-02 (Tex. Crim. App. Dec. 12,

er 4

Ex parte Burdine, No. 16,725-06 (Tex. Crim. App. Apr. 6,

ea ec nua wabcecinewes 5

Ex Parte Burdine, No. 379,444-A (183d Dist. Ct. Harris Cty.,

RE ITE SS Ia a 4

Green v. Arn, 809 F.2d 1257, 1263 (CA6 1987) ........ 14,15

Hernandez v. Wainwright, 634 F.Supp. 241

Ee 19, 20

Jackson v. Johnson, 217 F.3d 360 (CAS 2000) ............. 6

Javor v. United States, 724 F.2d 824 (CA9 1984) ....... passim

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iv

Johnson vy. Norris, 207 F.3d 515 (CA8 2000) .......... 18, 20

McKnight v. State, 465 S.E.2d 352 (S.C. 1995) ........ 14, 15

Morales v. United States, 143 F.3d 94 (CA2 1998)......... 1]

Pilchak v. Camper, 935 F.2d 145 (CA8 1991) ......... 18-20

Roe v. Flores-Ortega, 528 U.S. 470 (2000) ................ 8

Smith v. Robbins, 528 U.S. 259 (2000) ................ 8, 13

Smith v. Yist, 826 F.2d 872 (CA9 1987) .............. 19, 20

State v. Keller, 223 N.W. 698 (N.D. 1929) ............... 19

State v. Scherzer, 694 A.2d 196 (N.J. Super. 1997) ..... 14-17

Strickland v. Washington, 466 U.S. 668 (1984) ........ passim

Teague v. Lane, 489 U.S. 288 (1989) ................. i, 6, 7

Tippins v. Walker, 77 F.3d 682 (CA2 1996) ........... passim

United States v. Cronic, 466 U.S. 648 (1984) .......... passim

United States v. Morrison, 946 F.2d 484 (CA7 1991).... 14-17

United States v. Muyet, 994 F.Supp. 550 (S.D.N.Y. 1998) ... 11

United States v. O'Neil, 118 F.3d 65 (CA2 1997) .......... 1]

United States v. Russell, 205 F.3d 768 (CAS 2000) ........ 15

Vines v. United States, 28 F.3d 1123 (CA11 1994)... 14, 15,17

Statutes and Rules

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Constitutional Provisions

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Other Authorities

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1988) .. 20

PETITION FOR WRIT OF CERTIORARI

In Burdine, the en banc Fifth Circuit decided that a criminal

defendant is automatically entitled to a new trial because of lapses

in his attorney’s trial performance caused by unspecified episodes

of dozing or sleeping—regardless of the nature, length, or timing of

those lapses, regardless of the evidence of guilt, and regardless of

any showing that counsel's lapses undermined the outcome. That

decision alters this Court’s framework for analyzing deficient

attorney performance and invites certiorari review for three reasons.

First, Burdine creates a test for weighing the seriousness of

counsel’s sleeping that conflicts with tests from the Second and

Ninth Circuits. Second, it treats temporary absences of defense

counsel from trial as automatically reversible, in conflict with other

federal and state courts. Third, it earmarks one kind of attorney-

impairment for a presumption of prejudice, while other federal

courts have analyzed similar impairments under the traditional

prejudice test. The Court should grant this petition to resolve these

important constitutional questions.

CITATION OF UNITED STATES COURT OF APPEALS’S OPINION

Calvin Jerold Burdine v. Gary L. Johnson, _ F.3d ___, 2001 WL

914267 (CAS Aug. 13, 2001) (en banc) (Pet. App. 1a—133a)

BASIS FOR JURISDICTION

The Fifth Circuit delivered its judgment and opinion in

Burdine on August 13, 2001. The Court has jurisdiction to

entertain the Director’s petition for writ of certiorari under 28

U.S.C. §1254(1).

2

CONSTITUTIONAL PROVISION INVOLVED

“In all criminal prosecutions, the accused shall enjoy the

right . . . to have the Assistance of Counsel for his

defence.”

U.S. CONST. amend VI.

STATEMENT OF THE CASE

On April 20, 1983, the body of W.T. Wise was found in his

trailer in Houston, Texas. Wise’s hands and legs were bound with

electrical cord, and his mouth was gagged with socks and a sheet.

His scalp was lacerated, but he had died of two stab wounds to the

back, one hard enough to break a rib. Later that month, Calvin

Jerold Burdine, Wise’s former lover, was arrested in California with

his accomplice, Douglas McCreight. In fleeing from Houston to

California, the men had pawned several items stolen from Wise’s

trailer, used his bank cards to obtain cash, and were finally arrested

when they pawned Wise’s gun for thirty dollars. Two Houston

detectives were soon summoned to California, where they

interviewed Burdine and McCreight separately. After being

Mirandized twice, Burdine confessed to robbing and murdering

Wise. See generally Burdine v. State, 719 S.W.2d 309, 312-14

(Tex. Crim. App. 1986); 13SR248-52.

According to his confession,’ Burdine and Wise had lived

together for several months in Wise’s trailer in 1982, but, after

quarreling over money and whether Burdine would prostitute

himself for Wise, Burdine had moved out. After Burdine met

1. At trial, Burdine argued that his confession was illegally

obtained, but the judge determined after a bench hearing that it was

admissible. 12SR140-86; 13SR190-203; 14SR405-12. The Texas Court

of Criminal Appeals affirmed that decision on direct review. See

Burdine, 719 S.W.2d, at 317-18.

|

3

McCreight in 1983, the men decided to rob Wise. They confronted

Wise in his trailer and bound his hands with a telephone cord.

Burdine told McCreight they needed something to keep Wise quiet

because he would “squeal like a pig in a slaughterhouse.” They

therefore gagged Wise with the socks and sheet and moved his

body to the bedroom.

After gathering up some of Wise’s belongings, the men

decided something needed to be done to prevent Wise. from

identifying Burdine. They bound Wise’s feet with electrical cord,

and Burdine held Wise’s legs while McCreight tried to smother

Wise with a pillow. Smothering did not work, because Wise

thrashed on the bed and finally sat up, whimpering and crying.

Burdine then suggested that McCreight hit Wise in the head with a

lead-filled police sap. McCreight beat Wise in the head until Wise

lay still, bleeding profusely.

The men loaded Wise’s belongings into their truck, and then

decided something more was needed to silence Wise. They re-

entered the trailer and McCreight, after making the sign of the

cross, stabbed Wise in the back with a large hunting knife. Burdine

then told McCreight “what the hell, hand me the knife,” and also

stabbed Wise in the back. See generally Burdine, 719 S.W.2d, at

312-14; 13SR248-52; see also Pet. App. 45a—49a (Barksdale, J.,

dissenting).

Burdine attempted to recant his confession at trial, but actually

corroborated most of its major aspects except his participation in

holding down and stabbing Wise. 14SR392-404. Burdine admitted

that he and McCreight had planned the crime before going to

Wise’s trailer, and that robbing Wise was Burdine’s idea.

13SR394; 14SR445. Burdine’s court-appointed attorney, Joe

Cannon, argued strenuously to suppress Burdine’s confession,

12SR140-184; 13SR193-96, which was ultimately held to be

admissible. Burdine, 719 S.W.2d, at 318. Cannon also actively

participated in all phases of Burdine’s six-day trial. For instance,

4

Cannon examined numerous witnesses, repeatedly objected to both

testimony and photographic evidence, requested and participated in

numerous bench conferences, elicited Burdine’s testimony on direct

and re-direct examination, and presented closing arguments at both

the guilt-innocence and punishment phases. See generally 12SR43-

17SR694; Pet. App. 91a—101a (Barksdale, J., dissenting) (detailing

Cannon’s participation in the trial). But the jury found Burdine

guilty of capital murder and sentenced him to death.

At Burdine’s request, Cannon represented him on direct

appeal. He raised seventeen points of error, including numerous

issues about the admissibility of Burdine’s confession. See

Burdine, 719 S.W.2d, at 312, 317; see also Pet. App. 50a—Sla &

n.12 (Barksdale, J., dissenting). The Texas Court of Criminal

Appeals affirmed his conviction and sentence. Burdine, 719

S.W.2d, at 309. This Court denied certiorari. Burdine v. Texas,

480 U.S. 940 (1987).

Represented by new counsel, Burdine filed his first state

habeas petition in 1987, and a supplemental petition in 1988. See

Pet. App. 52a & nn.13-15 (Barksdale, J., dissenting). A three-day

evidentiary hearing was held before a special master, at which

Cannon testified about his defense theory and investigation of

mitigating evidence. Jd. In 1990, the special master recommended

relief based on the prosecutor’s remarks about homosexuality

during closing arguments and on Cannon’s performance at the

penalty phase, but, in 1994, the state habeas court recommended

denial. Ex Parte Burdine, No. 379,444-A (183d Dist. Ct. Harris

Cty., Tex., June 29, 1994); Pet. App. 50a-52a. The court of

criminal appeals denied relief. Ex parte Burdine, No. 16,725-02

(Tex. Crim. App. Dec. 12, 1994).

Later in December 1994—nearly eleven years after his

trial—Burdine filed a second state habeas application alleging for

the first time that Cannon had slept or dozed during trial. At the

evidentiary hearing in February 1995, Burdine did not testify or

5

submit an affidavit regarding the sleeping, but testimony was heard

from three jurors, the prosecutor, the trial judge, the court cierk, the

trial judge’s court coordinator, and an attorney who had been

Cannon’s co-counsel in another capital murder case. See Pet. App.

52a-53a (Barksdale, J., dissenting). Although the trial court

credited the testimony of the prosecutor and trial judge that they

never saw Cannon sleeping, Pet. App. 177c, and noted that one

juror never saw Cannon sleep, Pet. App. 179c, the court found from

the testimony of three jurors and the court clerk that

“defense counsel dozed and actually fell asleep during

portions of [Burdine’s] trial on the merits, in particular

during the guilt-innocence phase when the State’s solo

prosecutor was questioning witnesses and presenting

evidence.” Pet. App. 175c; see id. 3a—Sa; id. 36a—37a

(Barksdale, J., dissenting).

The trial court concluded that prejudice should be presumed under

these facts, but the court of criminal appeals disagreed. Although

the court of criminal appeals found support in the record for the trial

court’s fact findings, it concluded that Burdine had not shown

prejudice. Ex parte Burdine, No. 16,725-06 (Tex. Crim. App. Apr.

6, 1995). This Court again denied certiorari. Burdine v. Texas, 515

U.S. 1107 (1995).

Burdine sought federal habeas relief in April 1995, asserting

numerous grounds including ineffective-assistance based on

Cannon’s sleeping. See Pet. App. 54a & nn.18-19 (Barksdale, J.,

dissenting). In September 1999, without conducting a separate

evidentiary hearing, the district court granted relief on the sleeping

claim. See Burdine v. Johnson, 66 F.Supp.2d 854 (S.D.Tex. 1999)

(Pet. App. 134b-60b). The court adopted the rule of Javor v.

United States, 724 F.2d 824, 831 (CA9 1984), that prejudice must

be presumed if counsel sleeps through a “substantial portion” of

trial. Pet. App. 150b-52b. To determine what a “substantial

portion” of trial was, the district court adopted the analysis in

6

Tippins v. Walker, 77 F.3d 682, 687 (CA2 1996). Pet. App.

151b—54b; see Part I, infra (discussing tests in Javor and Tippins).

A divided panel of the Fifth Circuit reversed, holding that (1)

the district court’s sleeping test may have implicated an additional

exception to Teague v. Lane, 489 U.S. 288 (1989), created by the

Fifth Circuit for claims susceptible of vindication only on habeas

review, but (2) nonetheless, the evidence of Cannon’s sleeping did

not trigger any presumption of prejudice and was amenable to.the

general prejudice analysis of Strickland v. Washington, 466 U.S.

668 (1984). See Burdine v. Johnson, 231 F.3d 950, 956-58, 964

(CAS5 2000); see also Jackson v. Johnson, 217 F.3d 360, 364 (CA5

2000) (creating third Teague exception). The en banc court vacated

the panel decision, 234 F.3d 1339 (CA5 2000), and affirmed the

district court’s judgment granting Burdine habeas relief. See

Burdine v. Johnson, _ F.3d __, 2001 WL 914267 (CAS Aug. 13,

2001) (en banc) (Pet. App. 1a—133a).

A nine-judge majority held that prejudice must be presumed

because the evidence of Cannon’s sleeping established that Burdine _

had been “denied counsel at a critical stage of his trial.” Pet. App.

2a (quoting United States v. Cronic, 466 U.S. 648, 659 (1984)).

The majority also reasoned that Burdine did not seek the benefit of

a “new rule” under Teague, but sought only a fact-specific

application of Cronic’s “critical stage” rule. See Pet. App. 1 5a—! 8a.

Finally, the majority articulated a general test that “a defendant’s

Sixth Amendment right to counsel is violated when that defendant’s

counsel is repeatedly unconscious through not insubstantial portions

of the defendant’s capital murder trial.” Pet. App. 7a. Four judges

concurred, agreeing with the majority opinion but writing

separately to clarify their view of Teague. See Pet. App. 21a—29a

(Higginbotham, J., concurring). Five judges dissented in two

separate opinions and would have found that (1) the evidence of

counsel’s sleeping did not trigger a presumption of prejudice under

Cronic, and (2) any rule imposing such a presumption could not be

7

retroactively applied under Teague. See Pet. App. 29a—30a (Jolly,

J., dissenting); id. 30a—102a (Barksdale, J., dissenting).

On September 12, 2001, the Fifth Circuit stayed its mandate

pending this Court’s disposition of the Director’s certiorari petition.

The Director timely petitioned for certiorari review on September

21, 2001. Sup. CT. R. 13(1).

SUMMARY OF ARGUMENT

The Fifth Circuit’s decision to presume prejudice under the

circumstances of this case implicates three important conflicts

among state and federal courts. First, Burdine creates a test for

analyzing the prejudicial impact of attorney sleeping that conflicts

with tests from two other circuits. Three circuits now apply some

form of “presumed” prejudice based on three different tests for

evaluating attorney sleeping. Second, Burdine equates sleeping

with physical absence and automatically reverses a conviction

based on counsel’s temporary absences during the evidentiary

portion of trial. That approach accords with some courts, but

diverges from others that evaluate such absences under a harmless

error analysis. Third, the decision in Burdine illogically segregates

attorney sleeping from other attorney impairments that have

indistinguishable effects on an attorney’s ability to function during

trial. That decision conflicts with courts that have analyzed such

impairments under the traditional prejudice standard.

Burdine therefore implicates this Court’s certiorari jurisdiction.

It conflicts with decisions of other United States courts of appeals

and state courts of last resort, and also decides important questions

of federal constitutional law that have not been, but should be,

settled by this Court. See Sup. CT. R. 10(b), (c).

8

ARGUMENT

The three conflicts posed by the Fifth Circuit's decision must

be understood in light of the Court’s familiar framework for

analyzing claims of deficient representation. See Strickland v.

Washington, 466 U.S. 668 (1984); United States v. Cronic, 466

U.S. 648 (1984). The Court consistently recognizes that the core

purpose of the Sixth Amendment counsel clause is to safeguard the

fundamental truth-seeking function of trial and thereby “to ensure

that criminal defendants receive a fair trial.” Strickland, 466 U.S..,

at 689; see also Cronic, 466 U.S., at 656-57 (core Sixth

Amendment concern is whether “a true adversarial criminal trial has

been conducted”). Thus, ineffective assistance claims generally

must demonstrate “a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different.” Roe v. Flores-Ortega, 528 U.S. 470, 482 (2000)

(quoting Strickland, 466 U.S., at 694).

But the Court has identified narrow circumstances “so likely

to prejudice the accused that the cost of litigating their effect in a

particular case is unjustified.” Cronic, 466 U.S., at 658; see Smith

v. Robbins, 528 U.S. 259, 287 (2000). First, prejudice is presumed

“when a defendant has suffered an ‘[a]ctual or constructive denial

of the assistance of counsel altogether.”” Smith, 528 U.S., at 286

(quoting Strickland, 466 U.S., at 692, and citing Cronic, 466 U.S.,

at 659 & n.25). Second, the Court has also found that “various

kinds of state interference with counsel’s assistance’ can warrant a

presumption of prejudice.” Smith, 528 U.S., at 287 (quoting

Strickland, 466 U.S., at 692, and citing Cronic, 466 U.S., at 659 &

n.25). Finally, a more limited presumption of prejudice attaches

when counsel is burdened by an actual conflict of interest,’”

provided the defendant shows the conflict adversely affected

counsel’s performance. Smith, 528 U.S., at 287 (quoting

Strickland, 466 U.S., at 692).

ee

9

In Burdine, the en banc Fifth Circuit concluded that prejudice

must be presumed if a defendant’s counsel repeatedly sleeps

through “not insubstantial” portions of trial, because such deficient

performance amounts to an “actual denial” of counsel. See Pet.

App. 2a, 7a. That decision implicates the following conflicts

among state and federal courts.

I. THE SECOND, FIFTH, AND NINTH CIRCUITS HAVE CREATED

CONFLICTING TESTS FOR ANALYZING COUNSEL’S LAPSES

CAUSED BY SLEEPING.

Three circuits have now adopted tests that, given the same

evidence of attorney sleeping, would reach different results as to

whether prejudice has been established. These tests conflict

because they apply different presumptions—sometimes per se,

sometimes limited—that are triggered by different evidentiary

thresholds. Behind the arbitrary contours of the tests lurks a

fundamental misperception about the framework this Court crafted

in Strickland and Cronic. The Court should resolve that quandary

and clarify that episodes of sleeping, while reprehensible, are

nonetheless amenable to the traditional prejudice test like any other

similar attorney impairmeni.

The Ninth Circuit first addressed attorney sleeping in Javor v.

United States, 724 F.2d 831 (CA9 1984). Faced with evidence of

counsel’s repeated sleeping or dozing during the presentation of

evidence, the Ninth Circuit refused to determine from the trial

record whether such lapses were prejudicial because “unconscious

or sleeping counsel is equivalent to no counsel at all.” Jd., at 834.

Instead, the court “conclude[d] that when an attorney for a criminal

defendant sleeps through a substantial portion of the trial such

conduct is inherently prejudicial and thus no separate showing of

prejudice is necessary.” /d., at 833 (emphasis added). The court

_ did not particularize which episodes of sleeping triggered the

presumption, but its opinion, and the evidence before the court,

suggest the same result for “dozing” as for complete

10

unconsciousness. See id., at 832 (magistrate’s finding that counsel

“was asleep or dozing, and not alert to proceedings”); id, at 833

(noting that trial judge “was at times concerned about [counsel’s]

inattentiveness”’); id., at 834 (referring to “unconscious or sleeping

counsel”); id. (referring to trial judge’s testimony that counsel was

“dozing”). Nor did the court quantify what it meant by “substantial

portions” of trial, although it referred by way of illustration to

periods “while testimony pertaining to the petitioner was being

adduced.” /d.

Twelve years later, the Second Circuit relied on Javor to craft

its own test to analyze sleeping, but in the process criticized Javor’s

analysis. See Tippins v. Walker, 77 F.3d 682, 685-86 (CA2 1996).

The court rejected Javor’s focus on the “substantiality” of counsel’s

sleeping as a reliable indicator of prejudice:

“The word ‘substantial’ . . . is unhelpful. It can refer to

the length of time counsel slept, or the proportion of the

proceedings missed, or the significance of those

proceedings. The Javor court did not expound on the

meaning of the word.” /d., at 685.

Tippins therefore morphed the Ninth Circuit’s test into a three-part

inquiry that asks (1) whether the sleeping constituted “repeated and

prolonged lapses,” id. , at 687-88; (2) whether counsel was “actually

unconscious,” id., at 688-89; and (3) whether those lapses occurred

“when [the defendant’s] interests were at stake.” Jd, at 689-90.

Unlike the Ninth Circuit, Tippins did not apply a per se

presumption of prejudice. Instead, the Second Circuit analogized

sleeping to “another, more limited type of presumed prejudice” that

Strickland reserved for “cases in which counsel is burdened by a

conflict of interest.” /d., at 686 (citing Strickland, 466 U.S., at

692). The court emphasized that it had extended a per se rule of

prejudice only to cases in which defense counsel was not a member

of the bar or had an actual conflict arising from involvement in the

defendant’s crime. Tippins, 77 F.3d, at 686 (citing Bellamy v.

Cogdell, 974 F.2d 302, 306 (CA2 1992) (en banc)). Indeed,

Tippins’s own holding equivocates on whether prejudice was

presumed in that case or actually demonstrated. 77 F.3d, at 687

(concluding that Tippins “suffered prejudice, by presumption or

otherwise”) (emphasis added).’

In Burdine, the Fifth Circuit did not completely embrace either

Javor or Tippins, but rather scavenged parts from both decisions to

build a third test. Pet. App. 7a, 18a—19a. The Fifth Circuit will

presume prejudice when (1) a “defendant’s counsel is repeatedly

unconscious” (2) “through not insubstantial portions of the

defendant's capital murder trial.” /d. 7a. Burdine applies a per se

presumption of prejudice—not the more limited presumption of

Tippins—because the court reasoned that such sleeping episodes

amount to the “absence or denial of counsel at a critical stage of a

criminal proceeding.” /d. 12a—13a (citing Cronic, 466 U.S., at 659:

Strickland, 466 U.S., at 692). The court defined the relevant

“critical stage” as the period when “evidence was being produced

against Burdine,” and was thus able to conclude from the non-

specific fact findings that counsel had been unconscious, and hence

absent, during a critical stage of the proceeding. See id. 15a—20a,

2a.

Although these three tests address similar issues—i.e., the

depth, length, and timing of sleeping episodes—twenty-five years

2. Subsequent decisions in the Second Circuit continue to vacillate

over whether Tippins adopted a per se rule of prejudice, or something

less. Compare United States v. O'Neil, 118 F.3d 65, 70-71 (CA2 1997)

(noting that Tippins “suggested” that sleeping “may constitute a per se

violation”); United States v. Muyet, 994 F.Supp. 550, 560 (S.D.N.Y.

1998) (stating that O'Neil “clarified” that Tippins did not create a per se

rule), with Morales v. United States, 143 F.3d 94, 97 (CA2 1998)

(suggesting that Tippins created a per se rule).

12

of jurisprudential evolution has resolved those issues in conflicting

ways. First, the tests require different threshold depths of

sleeping—ranging from total unconsciousness, Pet. App. 7a;

Tippins, 77 F.3d, at 688, to “dozing,” Javor, 724 F.2d, at 832.

Second, they require different lengths of sleeping—through

“substantial” trial portions, Javor, 724 F.2d, at 833, for “repeated

and prolonged lapses,” Tippins, 77 F.3d, at 687, or, most elusively,

through “not insubstantial” trial portions, Pet. App. 7a. Third, they

demand that sleeping be localized during trial phases of varying

descriptions—periods when “testimony pertaining to” a defendant

is adduced, Javor, 724 F.2d, at 834, when the defendant’s “interests

are at stake,” Tippins, 77 F.3d, at 689, or when “evidence is being

produced against” a defendant, Pet. App. 18a. Finally, the tests

apply different presumptions of prejudice—either a per se

presumption based on a “critical stage” concept, Pet. App. 2a;

Javor, 724 F.2d, at 833, or a limited presumption related to the

“actual conflict of interest” rationale, Tippins, 77 F.3d, at 686. The

tests have this rough-hewn quality because they are judicial answers

to a question—when is attorney sleeping so likely to undermine a

trial outcome that prejudice must be presumed?—that has infinite

degrees of variation.

The differences in the tests are not mere semantics. As for

depth of sleep, common experience plainly shodws that

“consciousness and sleep form a continuum, and that there are

states of drowsiness that come over everyone from time to time

during a working day, or during a trial.” Tippins, 77 F.3d, at 689.

Consequently, there is a fundamental practical difference between

presuming prejudice for extended periods of unconsciousness and

presuming it for drowsiness, inattention, or even momentary sleep.

As for length of sleep, the Fifth and Ninth Circuits have adopted

similar measures—‘“substantial” or “not insubstantial” trial

periods—that the Second Circuit has condemned as vague and

“unhelpful.” Compare Pet. App. 7a and Javor, 724 F.2d, at 833,

with Tippins, 77 F.3d, at 685. Arguably, however, the Second

13

Circuit’s solution—requiring sleep for “repeated and prolonged

lapses” —raises similar difficulties. See Tippins, 77 F.3d, at 687.

As for timing of sleep, the three tests each set standards so vague

that they fail to reliably specify any particular part of trial.

Presumably, a// evidence at trial “pertains to” a defendant, Javor,

724 F.2d, at 834, and all of the prosecution’s evidence is “against”

him, Pet. App. 18a. Moreover, it is self-evident that the defendant’s

“interests are at stake” during each and every moment of the trial

(and pre-trial and post-trial) process. Tippins, 77 F.3d, at 689. Not

only do these labels provide no guidance to a court seeking to

discern precisely when sleeping must occur before prejudice is

presumed, but they will result in a presumption of prejudice

“irrespective of . .. whether counsel could have done anything to

improve the defendant’s circumstances had he been alert.” Pet.

App. 78a (Barksdale, J., dissenting).

At bottom, these tests represent a flawed application of the

Strickland-Cronic categories of presumed-prejudice to a class of

trial error for which they are ill-suited: intermittent, isolated lapses

in an attorney’s trial performance. See Smith, 528 U.S., at 286-87:

Strickland, 466 U.S., at 693. Federal courts have now made three

attempts to fashion a blanket rule to account for an attorney error

with a broad range of possible effects on the trial, and,

unsurprisingly, the result is inconsistency. The Court should

resolve this conflict.

II. STATE AND FEDERAL CouRTS CONFLICT OVER WHETHER

COUNSEL’S TEMPORARY ABSENCES FROM TRIAL ARE

AUTOMATICALLY REVERSIBLE OR SUBJECT TO HARMLESS

ERROR ANALYSIS.

Burdine’s holding is bottomed on the court’s equation of

counsel’s sleeping with temporary absence from trial. Pet. App. 7a,

20a. Burdine therefore implicates an additional conflict with state

and federal courts over the treatment of such temporary absences.

14

Some courts, like the Sixth Circuit and the South Carolina

Supreme Court, agree with the Fifth Circuit and find reversible

error from any temporary absence of counsel during the evidentiary

portion of trial. See, e.g, Green v. Arn, 809 F.2d 1257, 1263

(CA6), vacated on other grounds, 484 U.S. 806 (1987), reinstated,

839 F.2d 300 (CA6 1988); McKnight v. State, 465 S.E.2d 352, 354

(S.C. 1995). Other courts, like the Seventh Circuit, the Eleventh

Circuit, and a New Jersey intermediate appellate court, disagree and

analyze such temporary absences under a harmless error analysis.

See, e.g., Vines v. United States, 28 F.3d 1123, 1128 (CA11 1994);

United States v. Morrison, 946 F.2d 484, 503 (CA7 1991); State v.

Scherzer, 694 A.2d 196, 237-40 (N.J. Super.), cert. denied, 700

A.2d 878 (N.J. 1997). This divergence goes to the heart of a

sleeping counsel’s perceived impact on a criminal trial—i.e.,

whether intermittent sleeping will result in a new trial without any

weighing of the harm caused by sleeping episodes within the

context of the entire record.

As the New Jersey appellate court explained in Scherzer, the

courts actually diverge on two distinct issues. First, courts disagree

over whether the entire evidentiary portion of trial constitutes a

“critical stage” under Cronic. See Scherzer, 694 A.2d, at 237. The

Sixth Circuit maintains that “the evidentiary portion of the trial [is]

always critical.” /d (citing Green, 809 F.2d, at 1263); see also

Carter v. Sowders, 5 F.3d 975, 979 (CA6 1993) (confirming

Green's rule that the “taking of evidence on the defendant’s guilt”

is always a critical stage). By contrast, the Seventh and Eleventh

Circuits do not presumptively consider all evidentiary portions of

trial as critical without first scrutinizing any particular portion in the

context of the entire record. See Scherzer, 694 A.2d, at 237 (citing

Vines, 28 F.3d, at 1128; Morrison, 946 F.2d, at 503). Second, the

same courts disagree over whether counsel’s temporary absence

from even critical evidentiary portions of trial is amenable to

harmless error analysis. See Scherzer, 694 A.2d, at 239-40. The

Sixth Circuit rejects applying harmless error analysis, Green, 809

15

F.2d, at 1263, while the Seventh and Eleventh Circuits inquire

whether “the temporary absence of defense counsel during a portion

of the actual trial did not affect the conduct of the entire trial.”

Scherzer, 694 A.2d, at 240 (interpreting Morrison, 946 F.2d, at 503,

and Vines, 28 F.3d, at 1129). The South Carolina Supreme Court

follows the Sixth Circuit's per se approach, McKnight, 465 S.E.2d,

at 353-54, while the New Jersey appellate court accepts the contrary

view that “a temporary absence of counsel is not such a defect as to

prevent a court from pursuing the issue of harmless error.”

Scherzer, 694 A.2d, at 240 (citing Vines, 28 F.3d, at 1129).

Burdine squarely places the Fifth Circuit on one side of this

conflict and strengthens the disagreement. First, agreeing with the

Sixth Circuit and the South Carolina Supreme Court, Burdine treats

every segment of the evidentiary phase of trial as critical, regardless

of the context of a particular portion within the overall record. See,

e.g., Pet. App. 2a (finding that intermittent sleeping occurred “as

evidence was being introduced against [Burdine]”), 5a (state court

finding that counsel dozed or slept “during portions of [Burdine’s]

trial on the merits, in particular the guilt-innocence phase when the

State’s solo prosecutor was questioning witnesses and presenting

evidence”), 18a (observing that sleeping episodes were interspersed

“throughout the guilt-innocence phase of Burdine’s trial as evidence

was being produced against Burdine”); cf Scherzer, 694 A.2d, at

237 (observing that, in contrast to Seventh and Eleventh Circuits,

Sixth Circuit holds that “the evidentiary portion of the trial was

always critical”). Indeed, as Judge Barksdale’s dissent explained,

the majority effectively overruled a prior panel decision, Russell,

that had refused to hold that the evidentiary phases of trial are.

always critical. See Pet. App. 77a—79a (Barksdale, J., dissenting)

(stating that “the majority has overruled Russe// and established a

new rule”); see United States v. Russell, 205 F.3d 768, 769-71

(CAS 2000).

16

Second, Burdine equated sleeping with physical absence, and

held that counsel’s sleeping during any evidentiary portion of trial

will always result in automatic reversal and a new trial. Pet. App.

2a, 20a. That is so, reasoned the majority, because under such

circumstances the defendant has been “‘denied counsel at a critical

stage of his trial.’” /d. 2a (quoting Cronic, 466 U.S.. at 659). That

holding accords with the per se rule adopted by the Sixth Circuit

and the South Carolina Supreme Court, see Scherzer, 694 A.2d, at

240, and contradicts the approach of other courts that would

measure temporary attorney absences against the entire trial record,

determine whether they occurred at critical junctures, and, even

then, ask whether they were harmless beyond a reasonable doubt.

See, e.g., Morrison, 946 F.2d, at 503-04.

The Fifth Circuit’s decision to apply an automatic reversal

rule—as opposed to a more balanced rule, such as Strickland or

harmless error analysis—sealed the outcome of this case. Had the

majority measured the evidence of counsel’s sleeping against the

entire trial record, it would have found no reason to ieflexively

overturn the jury’s verdict. It was uncontested that evidence of

sleeping could not be linked to any particular part of the trial. See,

e.g., Pet. App. 36a—37a (Barksdale, J., dissenting) (explaining state

fact findings regarding sleeping). Thus, it is doubtful that Burdine

could show that any sleeping occurred during a critical juncture of

his trial. See id. 77a-78a (Barksdale, J., dissenting); see also id.

29a (Jolly, J., dissenting) (stating there is “no suggestion in the

record that Burdine suffered any prejudice on account of counsel’s

alleged sleeping” and “no evidence in the record that shows that

counsel’s sleeping occurred at a critical stage in the trial”).

Furthermore, the record plainly shows that “Burdine’s counsel

actually provided competent representation throughout the trial.”

Id. 29a (Jolly, J., dissenting); see also id. 91a—100a (Barksdale, J.,

dissenting) (detailed narrative of defense counsel’s active

participation in Burdine’s defense). The trial transcript reveals

iain cilia

17

“very few long stretches . . . in which no activity by [counsel] is

reflected,” and those inactive periods typically correspond to the

introduction of demonstrative evidence on which the court had

previously overruled counsel’s objections. See id. 99a (Barksdale,

J., dissenting) (discussing introduction of crime scene and property

photographs). Finally, counsel vigorously contested the

admissibility of the most damning evidence against Burdine—his

detailed confession to the murder—unsuccessfully arguing at trial

and on appeal that the confession had been coerced. See id.

100a—01a (Barksdale, J., dissenting).

Measured against the overall record in this case, the sparse

evidence of counsel’s sleeping would not have merited automatic

reversal under the more tempered rules of the Seventh and Eleventh

Circuits. See Vines, 28 F.3d, at 1128; Morrison, 946 F.2d, at 503;

see generally Scherzer, 694 A.2d, at 237-41. Moreover, if

measured by this Court’s general prejudice standard for deficient

attorney performance—as it should have been—Burdine could not

have demonstrated a reasonable probability that, absent counsel’s

sleeping episodes, the outcome of his trial would have been

different. See Strickland, 466 U.S., at 693-94.

The Court should resolve this conflict among state and federal

courts and determine whether defense counsel’s temporary absences

during trial merit a presumption of prejudice, whether they are

amenable to harmless error analysis, or whether they should be

governed by the general prejudice standard of Strickland.

III. INTERMITTENT SLEEPING IS INDISTINGUISHABLE FROM

OTHER ATTORNEY IMPAIRMENTS ANALYZED UNDER THE

TRADITIONAL PREJUDICE STANDARD.

Finally, a core aspect of Burdine inviting certiorari review is

the Fifth Circuit’s decision to set aside one kind of attorney-

impairment for a presumption of prejudice. The Court

distinguished “the drunk or drugged attorney” from the sleeping

18

lawyer because the sleeping lawyer “does not, indeed cannot,

perform at all,” and “is simply not capable of exercising judgment.”

Pet. App. 19a-20a. But that elevation of sleeping is, as Judge

Barksdale’s dissent argues, in tension with other courts’ treatment

of similar attorney-impairments. See id. 90a—91a (Barksdale, J.,

dissenting). Furthermore, it overlooks that even instances of

“repeated unconsciousness” have much in common with similar

episodes of mental impairment—whether due to illness, drug- or

alcohol-based incapacity, or inattention—that have consistently

been treated under the traditional prejudice standard. Thus,

reserving a presumption of prejudice for sleeping episodes alone

presents a conflict the Court should resolve.

A representative conflicting decision is Johnson v. Norris, 207

F.3d 515 (CA8 2000). in Norris, the court addressed the

petitioner’s ineffective-assistance claim based on his attorney’s

“unprofessional . . . perhaps bizarre” conduct during and after trial,

stemming from a bipolar disorder. /d., at 517. The court rejected

the petitioner’s reliance on Javor and Tippins and held that “[e]ven

if we assume that [counsel’s] bipolar condition existed during the

petitioner’s trial, we decline to adopt the petitioner’s proposed

rule.” /d., at 518. Reaffirming its decision to reject a per se

presumption of prejudice for counsel’s mental illness, the court

reasoned that “[b]ipolar disorder, like most mental illnesses, can

have varying effects on an individual’s ability to function, and the

disease can vary widely in the degree of its severity.” /d. (citing

Pilchak v. Camper, 935 F.2d 145, 149 (CA8 1991)). Thus, the

court applied the traditional prejudice analysis, confident that

“[a]ny errors [counsel] made, even as a result of his mental illness,

should be apparent from the face of the record, or otherwise

susceptible of proof, and thus readily reviewable.” Norris, 207

F.3d, at 518.

The Eighth Circuit’s approach in Norris conflicts with Burdine

because sleeping counsel—even if characterized as “repeatedly

19

unconscious” counsel—is not so different from mentally impaired

counsel] to warrant an entirely different prejudice analysis. See also

Pilchak, 935 F.2d, at 147-48 (evaluating counsel’s impaired trial

performance under prejudice standard, although counsel suffered

from Alzheimer’s disease, “prompt[ing] disorientation, loss of

memory, [and] inability to concentrate”); Smith v. YIst, 826 F.2d

872, 875-76 (CA9 1987) (applying traditional prejudice analysis to

evaluate “mentally unstable” counsel’s performance during trial,

distinguishing Javor); Hernandez v. Wainwright, 634 F.Supp. 241,

245 (S.D. Fla. 1986) (evaluating under prejudice analysis counsel’s

alcohol-impaired performance during trial and pre-trial stages),

aff'd, 813 F.2d 409 (CA11 1987).’ It is doubtful that there is any

qualitative difference between repeated sleeping and other attorney-

impairments, insofar as they effect an attorney’s ability to function

mentally during trial. Consequently, these decisions present a

conflict with Burdine that the Court should resolve.

The Fifth Circuit draws an arbitrary distinction between an

attorney who intermittently sleeps during trial and an attorney

impaired during trial by intoxicants, addiction, or illness. The court

reasoned that the unconscious attorney “does not, indeed cannot

perform, at all,” that he “is simply not capable of exercising

judgment,” and “is in fact no different from an attorney that is

physically absent from trial since both are equally unable to

exercise judgment on behalf of their clients.” Pet. App. 19a—20a.

3. Indeed, this entire line of cases contradicts Javor itself. In

formulating its per se rule, the Javor court relied on State v. Keller, 223

N.W. 698 (N.D. 1929), in which counsel was “intoxicated to such an

extent that he did not know what was transpiring at all times in the court

room.” Javor, 724 F.2d, at 834. Thus, Javor derived its per se rule at

least in part by analogy to a case involving an attorney impaired by

alcohol during trial. By contrast, courts that apply a prejudice analysis

to exactly that kind of impaired performance implicitly reiect Javor’s

main premise.

20

But precisely the same thing could be said of attorneys suffering

during trial from Alzheimer’s disease, see Pilchak, 935 F.2d, at

147-48; Buckelew v. United States, 575 F.2d 515, 521 (CAS 1978);

from intoxication or drug addiction, see Burnett v. Collins, 982 F.2d

922, 928-30 (CAS 1993); Hernandez, 634 F.Supp., at 245; or from

any number of mental disorders, see Norris, 207 F.3d, at 518; Yist,

826 F.2d, at 875-76. It cannot be reasonably claimed that an

attorney suffering the symptoms of mental illness or the effects of

addiction is “capable of exercising judgment” at all times during

trial. Moreover, what unifies these examples with Burdine is that

all involve an attorney’s impaired trial performance whose

prejudicial impact can be evaluated in light of the entire trial record.

See, e.g., Strickland, 466 U.S., at 693 (aside from actual conflict of

interest, “deficienc[ies] in attorney performance” are subject to

general prejudice requirement). The Burdine majority offered no

logical basis for carving “intermittent attorney sleeping” from the

class of all possible attorney-impairments and elevating it to

presumed-prejudice status. See Pet. App. 90a—91a (Barksdale, J.,

dissenting).

That elevation will invite countless ineffective-assistance

claims based on any type of intermittent “unconsciousness” by

counsel during trial. “Unconscious,” after all, is a malleable

term—it may refer to “not knowing or perceiving,” “not aware,”

“not marked by conscious thought,” or “having lost consciousness.”

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY, at 1284-85

(1988). In Burdine’s wake, imaginative habeas petitioners will

parade expert witnesses into their writ hearings to testify

that—given trial counsel’s subsequently-diagnosed Alzheimer’s, or

bipolar condition, or alcoholism, or attention-deficit disorder—it is

likely that periods of “unconsciousness” occurred during trial, and

therefore prejudice should be presumed. The argument has been

made before, see, e.g., Norris, 207 F.3d, at 518, and Burdine will

give it new life.

TE eae MTN ee

21

The Court should close this arbitrary breach in the law and

clarify that Strickland meant what it said: An actual conflict of

interest is the only instance of deficient attorney performance that

merits a presumption of prejudice. See 466 U.S., at 693.

Intermittent episodes of attorney sleeping are indistinguishable

from other kinds of impaired attorney performance that, while

lamentable, “are subject to a general requirement that the defendant

affirmatively prove prejudice.” /d.

CONCLUSION

The Fifth Circuit’s decision in this case implicates three

important issues of Sixth Amendment law on which courts sharply

disagree. The Court should grant the Director’s petition.

Respectfully submitted,

JOHN CORNYN

Attorney General of Texas

HOWARD G. BALDWIN, JR.

First Assistant Attorney General

MICHAEL T. MCCAUL

Deputy Attorney General for

Criminal Justice

JULIE CARUTHERS PARSLEY

Solicitor General

Counsel of Record

S. KYLE DUNCAN

Assistant Solicitor General

GENA BLOUNT BUNN

Chief, Capital Litigation Division

P.O. Box 12548

Austin, Texas 78711-2548

(512) 936-1700

COUNSEL FOR PETITIONER