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

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2507%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2002
- **Citation:** 535 U.S. 1120

## Text

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

a
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386014_2507%3A1. Public record. Not legal advice.