Appendix — Cockrell, Director, Texas Department of Criminal Justice, Institutional Division v. Burdine
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, \Supreme Court. U.S.
Gy FILED
No. —«08 495 SEP 2 1 2001
Ju the Suprenw 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
Linited States Court of Appeals for the Fifth Circuit
APPENDIX TO PETITION FOR WRIT OF CERTIORARI
JOHN CORNYN JULIE CARUTHERS PARSLEY
Attorney General of Texas Solicitor General
a Counsel of Record
HOWARD G. BALDWIN, JR. y
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
TABLE OF CONTENTS
A. Calvin Jerold Burdine v. Gary L. Johnson, __ F.3d _,
2001 WL 914267 (CAS Aug. 13, 2001) ..... la—133a
B. Calvin Jerold Burdine v. Gary Johnson, 66 F .Supp.2d
B54(S DD. Tem. 19) 6 os kek acess 134b—160b
C. State Habeas Court’s Findings of Fact and Conclusions
of Law (183d Dist. Ct. Harris Cty. Tex. Apr. 4, 1995)
Rb FPP RD kG Sie ee ek eek e aweAss 161c—185c
la
APPENDIX A
2001 WL 914267
7.
United States Court of Appeals,
: Fifth Circuit.
Calvin Jerold BURDINE, Petitioner-Appellee,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal
Justice, Institutional
Division, Respondent-Appellant.
No. 99-21034.
Aug. 13, 2001.
Appeal from the United States District Court for the Southern
District of Texas.
Before KING, Chief Judge. and JOLLY, HIGGINBOTHAM,
DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO
M. GARZA, DeMOSS, BENAVIDES, STEWART, PARKER,
and DENNIS, Circuit Judges.
BENAVIDES, Circuit Judge:
*1 In this case we consider whether the district court properly
granted a Petition for Writ of Habeas Corpus filed by Calvin
Jerold Burdine based on state habeas court findings that Burdine's
court-appointed attorney slept repeatedly throughout the guilt-
innocence phase of his 1984 capital murder trial. The district
court concluded "sleeping counsel is equivalent to no counsel at
2a
all" and granted relief pursuant to 28 U.S.C. § 2254. A divided
panel of this Court reversed, holding that (1) the district court's
presumption of prejudice for purposes of ineffective assistance
constituted a new rule of law from which Burdine could not
benefit under 7eague's nonretroactivity doctrine, and (2) the
circumstances of Burdine's representation did not require a
presumption of prejudice to ensure the fairness of Burdine's
capital murder trial. See Burdine v. Johnson, 231 F.3d 950 (Sth
Cir.2000).
As an en banc court, we AFFIRM the judgment of the district
court. [FN1] The Supreme Court has long recognized that "a trial
is unfair if the accused is denied counsel at a critical stage of his
trial." United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039,
80 L.Ed.2d 657 (1984). When a state court finds on the basis of
credible evidence that defense counsel repeatedly slept as
evidence was being introduced against a defendant, that defendant
has been denied counsel at a critical stage of his trial. In such
circumstances, the Supreme Court's Sixth Amendment
jurisprudence compels the presumption that counsel's
unconsciousness prejudiced the defendant.
I.
In January 1984, after a trial that included 12 hours and 51
minutes of total time before the jury over a period of six days, a
Harris County, Texas jury convicted petitioner Burdine of capital
murder in connection with the death of W.T. "Dub" Wise. Wise
was killed in April 1983 during the course of a robbery
committed by Douglas McCreight and Burdine. After the jury
affirmatively answered the two special issues, the state trial court
assessed punishment as death by legal injection in accordance
with Texas law. See Tex. Penal Code Ann. § 19.03(a)(2). The
Texas Court of Criminal Appeals affirmed Burdine's conviction
3a
and sentence on direct appeal. See Burdine v. Texas, 719 S.W.2d
309 (Tex.Crim.App.1986). Throughout his trial and direct appeal,
Burdine's court-appointed counsel was Joe F. Cannon of Houston.
Burdine's initial state application for a writ of habeas corpus
was denied on June 29, 1994. Burdine filed a second application
in December 1994. In relation to that application, the state habeas
court conducted an evidentiary hearing during which Burdine
called eight witnesses, including three jurors from the capital
murder trial and the clerk of the court in which the trial was held.
These four neutral witnesses, which the state habeas court found
highly credible, testified that Cannon repeatedly dozed or. 2pt as
the State questioned witnesses and presented evidence supporting
its case against Burdine.
*2 Daniel Strickland, the foreman of the jury, recalled seeing
Cannon doze or nod off between two and five times while the
prosecuting attorney questioned witnesses. Myra Davis
remembered being struck by the spectacle of Cannon's sleeping
on the second day of trial, the same day that trial judge Joseph
Guarino had chastised her for tardiness. According to Davis,
Cannon "would nod his head down on his chest" with his eyes
closed during the questioning of witnesses. "I was thinking to
myself, you know look at him and [Judge Guarino] calls me out
[for tardiness] in front of all these people, ... and look at what that
man is doing." Like Davis, Craig Engelhardt related that Cannon
"would nod his head down, bob it, with eyes closed during all
this." Engelhardt recalled Cannon sleeping as many as ten times
during the trial, at one point for "a good probably at least 10
minutes" as the prosecution questioned a witness.
The testimony of Rose Berry, the deputy clerk assigned to the
trial court that conducted Burdine's trial, confirmed the jurors’
recollections. Berry recalled "lots of incidents" of Cannon
4a
sleeping during oe rial Though Berry could not specify a
proportion of the trial in which Cannon slept, she did "know that
he fell asleep and that he was asleep for long periods of time
during the questioning of witnesses." According to the state
habeas court, Berry was "the most compelling witness" in the
proceeding not only because of her neutrality, but also because
she was not required to pay attention to witnesses or the
prosecutor and thus had a better opportunity to observe Cannon's
conduct.
Other witnesses at the hearing, including Judge Joseph
Guarino, prosecutor Ned Morris, and Carolyn Bonnin, a juror,
testified that they had not noticed Cannon asleep during the trial.
The prosecutor's testimony was challenged by James Pillow, the
court coordinator of the trial court at the time of Burdine's trial.
Pillow recalled having a conversation with the prosecutor, in
which the prosecutor questioned Cannon's competency to
represent capital defendants and suggested that Cannon not be
appointed counsel in future capital cases. Neither the prosecutor
nor Judge Guarino recalled ever discussing this issue, but Pillow
noted that Cannon was not appointed by Judge Guarino to
represent capital defendants after Burdine's trial. Cannon himself
testified he had a "habit" of closing his eyes and tilting his head
forward while concentrating, but that he never slept during
Burdine's trial. The state habeas court pointed out the
inconsistency between Cannon's testimony and the descriptions of
the four neutral witnesses that saw Cannon's head bobbing.
Moreover, Cannon's testimony as to his concentration habit was
impeached by Philip Scardino, an attorney who worked with
Cannon on a different capital case. While Scardino did not recall
Cannon concentrating with his eyes closed, he did observe
Cannon dozing during the voir dire of witnesses.
Ww
&
On April 3. 1995. the state habeas court entered
comprehensive findings of fact and conclusions of law. After
detailing the evidence presented during the evidentiary hearing,
the court entered "a finding that defense counsel dozed and
actually fell asleep 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." Based on evidence that "defense counsel repeatedly
dozed and/or actually slept during substantial portions of
[Burdine's] capital murder trial so that defense counsel was, in
effect, absent [,]" the habeas court concluded that a showing of
prejudice in accordance with Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), was not required.
[FN2] Accordingly, the court recommended that habeas relief be
granted on Burdine's claim of ineffective assistance of counsel. In
a one-page, unsigned opinion, the Texas Court of Criminal
Appeals agreed that "the trial court's findings of fact [regarding
the sleeping of trial counsel] are supported by the record." The
court nevertheless concluded that Burdine was not entitled to
relief because "he failed to discharge his burden of proof under
Strickland v. Washington, 446 [sic; 466] U.S. 669 (1984)." Ex
Parte Burdine, Writ No. 16,725-06 (Tex.Crim.App. April 6,
1995).
*3 Burdine then filed an application for a writ of habeas
corpus in the federal district court for the Southern District of
Texas pursuant to 28 U.S.C. § 2254. That court determined, on
the basis of the factual findings made by the state habeas court
and accepted by the Court of Criminal Appeals, that Cannon's
unconsciousness during Burdine's capital murder trial amounted
to constructive denial of counsel for substantial periods of that
trial. See Burdine v. Johnson, 66 F.Supp.2d 854, 866
(S.D.Tex.1999). Consequently, the district court determined that
prejudice should be presumed in accordance with the Supreme
6a
Court's analysis in Strickland and United States v. Cronic, 466
U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). See id. The
State now appeals from this determination.
Il.
This federal habeas proceeding turns on the effect of state
court findings that counsel repeatedly slept "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." Although the Texas Court of
Criminal Appeals rejected Burdine's habeas application, it found
that the record supported the habeas court's findings of fact. In
this appeal, the State concedes that we are bound by the habeas
court's findings of fact. Specifically, the State "does not dispute
that [counsel] dozed and actually fell asleep intermittently during
Burdine's capital murder trial." The State maintains that habeas
relief is nevertheless inappropriate for two reasons: (1) the district
court's presumption of prejudice on the facts of this case amounts
to a "new rule" that Teague v. Lane, 489 U.S. 288, 109 S.Ct.
1060, 103 L.Ed.2d 334 (1989), bars Burdine from raising in this
collateral proceeding, and (2) the facts of Burdine's case do not
warrant a presumption of prejudice because Burdine's counsel
slept during indeterminate periods of what otherwise amounted to
an adversarial trial.
[1]{2] The State's arguments fail to address the fundamental
unfairness in Burdine's capital murder trial created by the
_consistent unconsciousness of his counsel. It is well established
that a defendant "requires the guiding hand of counsel at every
step in the proceedings against him." Powell v. Alabama, 287
U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). Moreover, both
the Supreme Court and this Court have recognized that the
absence of counsel at critical stages of a defendant's trial
]
_ Te ee
Ta
undermines the fairness of the proceeding and therefore requires a
presumption that the defendant was prejudiced by such
deficiency. See United States v. Cronic, 466 U.S. 648, 659, 104
S.Ct. 2039, 80 L.Ed.2d 657 (1984); United States v. Russell, 205
F.3d 768, 770-71 (Sth Cir.2000). Applying this longstanding
principle, we conclude 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. Under such circumstances, Cronic requires
that we presume that the Sixth Amendment violation prejudiced
the defendant.
A. Burdine Does Not Seek the Benefit of a "New Rule”
*4 [3][4] The State first argues that Burdine's claim creates a
new rule of law barred by the non-retroactivity principle of
Teague. When applying Teague to determine whether Burdine is
eligible to habeas relief we follow three steps: (1) we determine
when Burdine's conviction and sentence became final, (2) we
"survey the legal landscape as it then existed to determine
whether a state court considering [Burdine]'s claim at the time his
conviction became final would have felt compelled by existing
precedent to conclude that the rule he seeks was required by the
Constitution[,]" and (3) if Burdine seeks the benefit of a new rule,
we must decide whether the rule falls within one of the narrow
exceptions to the non-retroactivity principle. Caspari v. Bohlen,
510 U.S. 383, 390, 114 S.Ct. 948, 953, 127 L.Ed.2d 236 (1994);
see also Fisher v. Texas, 169 F.3d 295, 305 (Sth Cir.1999).
Whether Jeague's non-retroactivity rule precludes Burdine from
benefitting from the presumption of prejudice he asserts is a
question of law, we therefore engage in this three-part analysis de
novo. See United States v. Shunk, 113 F.3d 31, 34 (Sth Cir.1997).
8a
All parties agree that Burdine's conviction became final in
1987, when the Supreme Court denied certiorari. See Caspari,
510 U.S. at 390, 114 S.Ct. at 953. Thus, we begin our analysis
with the second issue: whether a state court in 1987 would have
felt compelled by Supreme Court precedent to conclude that the
Sixth Amendment required a presumption of prejudice when a
defendant's counsel slept repeatedly during the defendant's capital
murder trial as evidence was being presented by the State.
Because application of Sixth Amendment principles firmly
established by 1987 compel such a presumption of prejudice on
the facts of this case, we conclude that the rule Burdine seeks to
benefit from is not new, and hence not barred by Teague.
In Teague, a plurality of the Supreme Court espoused Justice
Harlan's view of retroactivity that a new rule of law would not be
applied on collateral review to cases that became finai prior to the
announcement of the new rule. Jeague, 489 U.S. at 310, 109
S.Ct. at 1075. Since Teague, the Court has clarified that this
principle of non-retroactivity "serves to ensure that gradual
developments in the law over which reasonable jurists may
disagree are not later used to upset the finality of state convictions
valid when entered." Sawyer v. Smith, 497 U.S. 227, 110 S.Ct.
2822, 2828, 111 L.Ed.2d 193 (1990). Moreover, the rule reflects
the limited purpose of federal habeas corpus "to ensure that state
convictions comply with the federal law in existence at the time
the conviction became final, and not provide a mechanism for the
continuing reexamination of final judgments based upon later
emerging legal doctrine." /d.
*5 Applying the non-retroactivity principle in a way that
balances the need for finality of convictions against the need to
enforce minimal constitutional protections has _ proven
challenging. Even in Teague, the plurality opinion acknowledged
that the task of determining whether a case announces a new rule
won
9a
is often difficult. For that reason, the plurality expressly did not
"attempt to define the spectrum of what may or may not
constitute a new rule" for purposes of retroactivity. Teague, 489
U.S. at 301, 109 S.Ct. at 1070; see also Mackey v. United States,
401 U.S. 667, 695 (Harlan, J., concurring in judgments and
- dissenting in part) (recognizing "the inevitable difficulties that
will arise in attempting to determine whether a particular decision
has really announced a 'new' rule at all or whether it has simply
applied a well- established constitutional principle to govern a
case which is closely analogous to those which have been
previously considered in the prior case law."). The Teague
plurality did, however, offer the following general guidelines:
"[A] case announces a new rule when it breaks new ground or
imposes a heretofore new obligation on the States or the
Federal Government. To put it differently, a case announces a
new rule if the result was not dictated by precedent existing at
the time the petitioner's conviction became final."
Id. (emphasis in original). A majority of the Court employed
these guidelines shortly after Teague in Penry v. Lynaugh, 492
U.S. 316, 109 S.Ct. 2934 (1989). Indeed, only in Penry did a
majority of the Court adopt Teague's non-retroactivity doctrine.
See id. Thus, the analysis in Penry is instructive with respect to
the distinction between a new rule under Jeague and an
application of established principles to a case that is analogous to
prior precedent.
Penry claimed that his Eighth Amendment rights were
violated because the jury in his capital murder trial was unable to
fully consider and give effect to mitigating evidence of his mental
retardation and childhood abuse when answering Texas' three
statutory special issues at sentencing. Penry did not facially
challenge the Texas death penalty statute. Instead, Penry claimed
that,-"on the facts of [his] case, the jury was unable to fully
consider and give effect to the mitigating evidence ... in
10a
answering the three special issues." 492 U.S. at 315, 109 S.Ct. at
2945 (emphasis added). The State argued that Penry's asserted
rule amounted to an extension of established principles and
consequently was barred by Teague. The Court was thus faced
with determining whether the rule asserted by Penry was an
application of established principles or a new rule of law.
*6 Prior to 1986, when Penry's conviction and sentence
became final, the Supreme Court had established that "in capital
cases the fundamental respect for humanity underlying the Eighth
Amendment requires consideration of the character and record of
the individual offender and the circumstances of the particular
offense as a constitutionally indispensable part of the process of
inflicting the penalty of death." See Penry, 492 U.S. at 316, 109
S.Ct. at 2945 (quoting Woodson vy. North Carolina, 428 U.S. 280,
304, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (1976)). The Court had
stressed this fundamental principle in upholding Texas’ capital
punishment statute against a facial Eighth Amendment challenge
in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929
(1976). In Jurek, the Court concluded that Texas' sentencing
scheme satisfied the Eighth Amendment provided that sentencing
juries were allowed to consider any mitigating circumstances
relevant to a specific case. Jurek, 428 U.S. at 272, 96 S.Ct. at
2956. Supreme Court decisions subsequent to Jurek and
Woodson, but prior to Penry's conviction becoming final,
reaffirmed the need for an individualized assessment of the
appropriateness of the death penalty under the Eighth
Amendment. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954,
57 L.Ed.2d 973 (1978); Eddings v. Oklahoma, 455 U.S. 104, 102
S.Ct. 869, 71 L.Ed.2d 1 (1982) (both concluding that a sentencer
cannot be precluded from considering and giving effect to
relevant mitigating circumstances when determining — the
appropriateness of the death penalty in a particular case). At the
same time, however, no Supreme Court decision prior to Penry
lla
had commanded courts to instruct juries how to consider specific
mitigating evidence in a particular case. Instead, the case law
established fundamental Eighth Amendment principles for
application in analogous cases.
The Supreme Court concluded that despite the absence of a
specific holding requiring the instruction sought by Penry, the
rule Penry sought to benefit from was dictated by the Eighth
Amendment principles espoused and enforced in the Court's prior
cases. According to the Court, it was firmly established at the
time of Penry's conviction that a sentencer in Texas had to
consider any mitigating evidence specific to the circumstances of
Penry and his crime. Penry, 492 U.S. at 317, 109 S.Ct at 2946.
The rule that Penry sought--a requirement that the jury be
instructed specifically what mitigating evidence it should
consider and how it should consider that evidence when
answering Texas' special issues--was not "new" for the purposes
of Teague because it represented a specific application of general
Eighth Amendment principles outlined in prior analogous cases.
Though Penry's claim for relief did require the State to issue
specific instructions that it previously had not issued, the rule
which controlled Penry's case was nevertheless not new.
Moreover, the rule did not impose a new obligation on Texas, it
simply required that Texas fulfill its obligation, expressed in
Jurek, to ensure "that the special issues [of the Texas capital
punishment statute] would be interpreted broadly enough to
permit the sentencer to consider all of the relevant mitigating
evidence a defendant might present in imposing sentence." /d.
*7 [5] Penry’s recognition that the application of established
general procedural principles in an analogous context is not a new
rule barred by Teague remains the law today. See Bousley v.
United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140
L.Ed.2d 828 (1998) (rejecting the argument that the petitioner's
_
12a
claim that his guilty plea was not knowing and intelligent was
barred by Teague in part because "[t]here is surely nothing new
about this principle ...."); see also Wright v. West, 505 U.S. 277,
304, 112 S.Ct. 2482, 2497, 120 L.Ed.2d 225 (1992) (O'Connor,
J., concurring) ("If a proffered factual distinction between the
case under consideration and pre- existing precedent does not
change the force with which the precedent's underlying principle
applies, the distinction is not meaningful, and any deviation from
precedent is not reasonable."). Just as Penry sought an application
of Eighth Amendment principles well-established at the time his
conviction became final, Burdine now seeks the application of
Sixth Amendment principles that were well-established at the
time that his conviction became final. Just as Teague did not
prevent Penry from receiving the benefit of established Eighth
Amendment protections, it does not prevent Burdine from
receiving the benefit of established Sixth Amendment protections.
[6][7] At the time that Burdine's conviction became final in
1987, it was well established in the legal landscape that
defendants have the Sixth Amendment right to effective
assistance of counsel at every critical stage of the proceedings
against them. See Powell, 287 U.S. at 69, 53 S.Ct. at 64. fFN3]
The purpose of this Sixth Amendment guarantee was and "is to
ensure that a defendant has the assistance necessary to justify
reliance on the outcome of the proceeding." Strickland v.
Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2067, 80
L.Ed.2d 674 (1984); Cronic, 466 U.S. at 658, 104 S.Ct at 2046
("[T]he right to the effective assistance of counsel is recognized
not for its own sake, but because of the effect it has on the ability
of the accused to receive a fair trial"). Because the Sixth
Amendment serves solely to ensure a fair and reliable trial, "any
deficiencies in counsel's performance must be prejudicial to the
defense in order to constitute ineffective assistance under the
Constitution." /d. In Cronic, however, the Court recognized that
13a
some egregious circumstances "are so likely to prejudice the
accused that the cost of litigating their effect in a particular trial is
unjustified." Cronic, 466 U.S. at 658, 104 S.Ct at 2046. Both in
Cronic and in Strickland, the Supreme Court recognized that the
absence or denial of counsel at a critical stage of a criminal
proceeding represents one of the egregious circumstances that
requires the presumption of prejudice. See Cronic, 466 U.S. at
659, 104 S.Ct. 2047; Strickland, 466 U.S. at 692, 104 S.Ct. at
2067. [FN4] Burdine seeks an application of this rule to the facts
of his case. He argues that he was repeatedly without counsel
throughout the most critical part of his capital murder trial: the
guilt-innocence phase. Because he was without counsel, Burdine
argues that we should presume prejudice in accordance with
Cronic and Strickland. We agree with Burdine that the rule he
seeks to benefit from is neither new, nor should it have been
surprising to the State of Texas at the time of Burdine's
conviction in 1987.
*8 [8] The State concedes that Cronic calls for the
presumption of prejudice when, during a critical stage of trial,
counsel is either (1) totally absent, or (2) present but prevented
from providing effective assistance. See Cronic 466 U.S. at 659 n.
25, 104 S.Ct. 2047 n. 25. The State argues that applying this rule
to the facts of Burdine's case expands Cronic's holding and
therefore creates a "new rule" barred by Teague. Specifically, the
State maintains that (1) Cronic calls for a presumption of
prejudice relating to absence of counsel only when state action
causes such absence, and (2) any absence by Burdine's attorney
was not proven to have taken place during a "critical stage" of
Burdine's trial, as such term was understood by the Court in
Cronic. We disagree with the State's excessively narrow reading
of Cronic.
l4a
[9] Initially, we note that the State's proposed state action
requirement does not flow from the language of Cronic. Cronic
recognized that because our system of justice deems essential the
assistance of counsel, "a trial is unfair if the accused is denied
counsel at a critical stage of his trial." /d. In a footnote following
this sentence, the Court explained that presumption of prejudice
was appropriate "When counsel was either totally absent, or
prevented from assisting the accused during a critical stage of the
proceeding." Though the term "prevented from assisting the
accused" suggests the existence of some indeterminate external
force, no inference of a state action requirement is possible from
the Court's language discussing the appropriateness of a
presumption when counsel is "totally absent.". [FN5] Later in
Cronic the Court more directly dispelled the State's proposed
state action requirement when it dismissed the idea that the cause
of a Sixth Amendment deficiency should control whether a
presumption of prejudice was warranted. The Court explained:
*9 "The fact that the accused can attribute a deficiency in his
representation to a source external to trial counsel does not
make it any more or less likely that he received the type of
trial envisioned by the Sixth Amendment, nor does it justify
reversal of his conviction absent an actual effect on the trial
process or the likelihood of such an effect."
Cronic, 466 U.S. at 662 n. 31, 104 S.Ct. at 2048 n. 31. We
conclude that the Sixth Amendment principle animating Cronic's
presumption of prejudice is the fundamental idea that a defendant
must have the actual assistance of counsel at every critical stage
of a criminal proceeding for the court's reliance on the fairness of
that proceeding to be justified. The Court in Cronic was not
concerned with the cause of counsel's absence, but rather the
effect of such absence on the fairness of the criminal proceeding.
Our recent discussion of Cronic in United States v. Russell,
205 F.3d 768 (Sth Cir.2000), supports this interpretation and
15a
rejects the State's excessively narrow reading. On appeal from the
denial of his section 2255 motion, Russell urged this Court to
presume prejudice under Cronic based on the absence of counsel.
Russell, along with 16 co-defendants, was on trial for conspiracy
to possess drugs and conspiracy to launder money. Several days
into the trial, Russell's counsel fell ill and was absent for two days
of trial as evidence was being presented against Russell's co-
conspirators. Though an attorney for one of Russell's
codefendants represented to the trial court that he had Russell's
permission to act as counsel during the absence of Russell's own
attorney, we concluded that it was unclear from the record
whether the district court had accepted counsel's attempt to
represent the petitioner. Russell, 205 F.3d at 769-71. Despite the
absence of a clear waiver of counsel, the trial court allowed the
trial to continue after instructing the government not to present
evidence directly relating to Russell while his counsel was absent.
While we refused to adopt a per se rule that the taking of any
evidence at trial in the absence of counsel warrants a presumption
of prejudice, we did recognize Cronic's emphasis on the need to
have counsel at every critical stage of a trial to ensure its fairness
and reliability. /d. (quoting Cronic, 466 U.S. at 658, 104 S.Ct. at
2047). In characterizing Cronic's holding, we did not require a
showing that the state was responsible for the absence of counsel.
Instead, we interpreted Cronic as focusing on the overall fairness
of the proceeding, and specifically on whether the absence of
counsel was at a critical stage of the trial. We noted that while
Cronic did not provide substantial guidance with respect to what
parts of a trial are "critical," the following guidelines could be
distilled:
*10 First, there must be a denial of such significance that it
makes the adversary process itself unreliable. [Cronic, 466
U.S. at 659. 104 S.Ct. at 2047]. Second, the Cronic court
makes clear that "only when surrounding circumstances
loa
justify a presumption of ineffectiveness can a Sixth
Amendment claim be sufficient without inquiry into counsel's
actual performance at trial."
205 F.3d at 771 (quoting Cronic, 466 U.S. at 662, 104 S.Ct. at
2048). Applying these principles to Russell's case, we concluded
that the adversary process in Russell's trial was unreliable because
Russell's counsel was not "present to keep the taint of conspiracy
from spreading to the client." /d. at 772. On this basis, we held
that counsel's absence was at a critical stage and presumed
prejudice. [FN6]
As reflected by our discussion in Russell, Cronic presumes
prejudice based on the absence of counsel when such absence
threatens the overall fairness of a trial. While state responsibility
for counsel's absence may be relevant in examining the fairness of
a trial, state action is not and has never been a prerequisite for
invoking Cronic to presume prejudice. Reading Cronic to impose
such a prerequisite would require shifting the opinion's emphasis
from the fairness and reliability of criminal proceedings to the
culpability of a state in distorting the adversarial process. For that
reason, we reject the State's attempt to cast Burdine's argument as
a "new rule” by imposing a state action requirement onto Cronic’s
principle that Sixth Amendment prejudice is presumed when a
defendant demonstrates the absence of counsel at a critical stage
of his criminal proceeding.
[10] The State also attempts to characterize Burdine's
argument as a new rule by limiting the meaning of "critical stage"
as that term is used in Cronic and certain cases cited in Cronic.
Initially, the State argues that the Supreme Court intended "the
Sixth Amendment concept of ‘critical stage’ " to refer "not to the
trial itself, but rather to phases of a criminal proceeding other
than the trial." (emphasis in original). We quickly dispense with
this argument. All of the Supreme Court cases that the State cites
17a
as supporting its proposition assume that the presentation of
evidence against a defendant is a critical stage of a criminal
proceeding. See, e.g. Brewer v. Williams, 430 U.S. 387, 398, 97
S.Ct. 1232, 1239, 51 L.Ed.2d 424 (1977). The cases cited by the
State simply extend the concept of the trial as a critical stage to
other discrete periods; in so extending the concept, they do not
question the fact that the trial itself remains a critical stage of any
criminal proceeding. Maine v. Moulton, 474 U.S. 169, 170, 106
S.Ct. 477, 484 (1985) (noting that the Supreme Court has not
limited the right to assistance of counsel to participation at trial,
but has not abrogated that right during the trial itself).
[11] The State next argues that because Burdine cannot
demonstrate precisely when Cannon slept during his trial, he
cannot prove that Cannon slept during critical stages of his
criminal proceeding. In this regard, the State asks more of
Burdine than the Supreme Court or this Court has ever asked of a
defendant attempting to show the absence of counsel during a
critical stage of trial. To justify a particular stage as "critical," the
Court has not required the defendant to explain how having
counsel would have altered the outcome of his specific case.
Rather, the Court has looked to whether "the substantial rights of
a defendant may be affected" during that type of proceeding.
United States v. Taylor, 933 F.2d 307, 312 (5 th Cir.1991) (citing
Mempha v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 256, 19
L.Ed.2d 336 (1967); Gideon v. Wainright, 372 U.S. 335, 342-43,
88 S.Ct. 792, 795-96 (1963)); see also United States v. Gouveia,
467 U.S. 180, 189, 104 S.Ct. 2292, 2298, 81 L.Ed.2d 146 (1984)
(suggesting that a proceeding is critical when the accused is
confronted by the legal procedural system or the expertise of a
State adversary). Thus, in Russell, this Court was satisfied by
Russell's showing that evidence was being adduced by the State
against his co-conspirators while Russell's counsel was absent.
See Russell, 205 F.3d at 772. We did not require Russell to
18a
demonstrate that the evidence adduced against his co- defendants
did in fact have an adverse impact on his own fortune or that the
presence of his attorney would have improved his chances of an
acquittal. [FN7] Such a standard would require that the
defendant, in effect, prove prejudice in order to receive a
presumption of prejudice. That was not the standard announced in~— -
Cronic. Therefore, to the extent that the State maintains that
application of the term "critical stage" to the facts of Burdine's
case would constitute a new rule, we dismiss the State's argument.
Burdine has alleged and the state court findings support the fact
that Burdine's counsel was unconscious, and hence absent,
repeatedly throughout the guilt-innocence phase of Burdine's trial
as evidence was being produced against Burdine. That this stage
of Burdine's trial was "critical" was well established in 1987 and
is well established today.
*11 In sum, we conclude that Burdine seeks the benefit of a
rule well- established at the time that his conviction became final:
when a defendant does not have counsel at every critical stage of
a criminal proceeding, the court must presume that such
egregious deficiency prejudiced the fairness of the trial. Because
Burdine does not seek the benefit of a new rule, we need not
discuss the various exceptions to Teague. Instead, we turn to
whether the merits of Burdine's case warrant the application of
this longstanding rule.
B. Is Presumption of Prejudice Appropriate in Burdine's Case?
*12 [12] The State purports to accept the state trial court's
findings that defense counsel slept during substantial portions of
Burdine's trial. Nonetheless, the State painstakingly conducts a
page-by-page analysis of the trial record in an apparent attempt to
demonstrate that counsel was awake during significant portions of
the trial. [FN8] Yet, once we have accepted as presumptively
19a
correct the state court's finding that counsel slept "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," there is no need to attempt to
further scrutinize the record. See Javor v. United States, 724 F.2d
831, 834 (9th Cir.1984) (holding that "[w]hen a defendant's
attorney is asleep during a substantial portion of his trial, the
defendant has not received the legal assistance necessary to
defend his interests at trial” and thus, prejudice must be
presumed).
[13] The factual findings made during Burdine's state habeas
proceedings demonstrate that Burdine's counsel was repeatedly
asleep, and hence unconscious, as witnesses adverse to Burdine
were examined and other evidence against Burdine was
introduced. This unconsciousness extended through a not
insubstantial portion of the 12 hour and 51 minute trial.
Unconscious counsel equates to no counsel at all. Unconscious
counsel does not analyze, object, listen or in any way exercise
judgment on behalf of a client. As recognized by the Second
Circuit, "the buried assumption in our Strickland cases is that
counsel is present and conscious to exercise judgment, calculation
and instinct, for better or worse. But that is an assumption we
cannot make when counsel is unconscious at critical times."
Tippins v. Walker, 77 F.3d 682, 687 (2d Cir.1996). [FN9] When
we have no basis for assuming that counsel exercised judgment
on behalf of his client during critical stages of trial, we have
insufficient basis for trusting the fairness of that trial and
consequently must presume prejudice.
The State suggests that because Cannon was physically
present in the courtroom, his dozing constituted a form of
performance that should be subjected to prejudice analysis. The
State maintains that it is impossible to distinguish between
20a
sleeping counsel and other impairments that nevertheless have
been subjected to prejudice analysis. We disagree. An
unconscious attorney does not, indeed cannot, perform at all. This
fact distinguishes the sleeping lawyer from the drunk or drugged
one. Even the intoxicated attorney exercises judgment, though
perhaps impaired, on behalf of his client at all times during a trial.
Yet, the attorney that is unconscious during critical stages of a
trial is simply not capable of exercising judgment. The
unconscious attorney 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. Such absence of
counsel at a critical stage of a proceeding makes the adversary
process unreliable, and thus a presumption of prejudice is
warranted pursuant to Cronic.
[14] As in Russell, we decline to adopt a per se rule that any
dozing by defense counsel during trial merits a presumption of
prejudice. Our holding, that the repeated unconsciousness of
Burdine's counsel through not insubstantial portions of the critical
guilt-innocence phase of Burdine's capital murder trial warrants a
presumption of prejudice, is limited to the egregious facts found
by the state habeas court in this case. [FN10]
II.
*13 Based on the state court's findings that have been
accepted by all as presumptively correct, we affirm the district
court's grant of federal habeas corpus relief and vacate Burdine’s
capital murder conviction. The State is free to retry Burdine for
capital murder.
AFFIRMED.
2la
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by
KING, Chief Judge, and W. EUGENE DAVIS, and WIENER,
Circuit Judges, concurring:
I concur fully in the excellent opinion of the Court, but write
separately to explain my preferred path. As for the merits of
Burdine's claim, he had no lawyer for not insignificant amounts
of time as the government presented its case. This is surely a
denial of the constitutional right to counsel. The more difficult
issue is the threshold 7eague question of whether this court has
the power to grant the relief Burdine requests on habeas review.
I.
Teague v. Lane’ [FNI1] announced that a federal court
reviewing a habeas petition cannot apply a "new rule" of law in
granting relief to the prisoner. [FN2] In other words, a federal
habeas petitioner cannot rely on a rule of federal constitutional
law that did not exist at the time his conviction became final. The
rule of Teague is no legal technicality. Rather, it is a recognition
of the important, but sensitive, role of habeas corpus in our
federal system. Teague is an integral component of the structure
by which constitutional questions arising out of state criminal
convictions are reviewed by federal courts.
Originating in the Habeas Corpus Act of 1867, in tandem with
the Reconstruction Amendments, the modern writ of habeas
corpus has operated as a vital safeguard of the federal
constitutional rights of persons convicted in state courts. [FN3] It
has a history bound up in the expansion of federal supervision
over the States and the genesis of modern civil rights, and in
particular the movement toward racial equality. Habeas corpus
originally served only to ensure the release of persons imprisoned
without legal process, but its reach expanded slowly until the
22a
landmark decision of Brown vy. Allen. [FN4] Only then in 1953
did federal habeas afford relief from a state conviction based on
constitutional error.
In practical effect, Brown replaced direct review in the
Supreme Court of state convictions by enlisting the lower federal
courts in the task of reviewing claims of constitutional
deprivation ensuing from state criminal convictions. In the same
stroke, Brown expanded the availability to state prisoners of a
remedy for constitutional violations suffered during their
prosecution. This expansion of the writ, however, threatened the
finality of criminal convictions. Unlike appellate review, habeas
review was not bound by time limits, [FN5] and changes in the
law could render convictions that were valid when decided
invalid under current law. In such cases, no longer would the
Reconstruction-era concern with States flouting federal law be
relevant-- instead, state-court convictions that complied with
federal law could be challenged years later based on
developments in federal law that the state courts could not have
anticipated.
Following Brown, the Supreme Court struggled with the
problem of habeas courts applying recent federal decisions to old
convictions. It first attempted to give only prospective effect to its
newly ual constitutional rights, [FN6] an effort that drew sharp
criticism. [FN7] Urged on by Justice Harlan, the Court finally
abandoned the effort at prospective effect [FN8] and turned to
the scope of the habeas remedy in Teague. [FN9] By forbidding a
federal court from applying legal rules that did not exist at the —
time the prisoner's conviction became final, Teague allows
federal courts to provide review of state-court convictions, in a
fashion akin to appellate review, without interfering with
convictions in state courts that .cted in compliance with federal
law. So it is that Teague is a ru: and powerful discipline for the
eae ee — - a a a a
Wb ster se ss sentir:
23a
wielding of federal power. More to the point, it is not an equitable
doctrine relaxing or drawing taut for cases perceived as deserving
of adjustment--in either direction. At the least the doctrine has
matured to this relative fixity.
Il.
*14 The Teague principle, though easy to state, can pose
difficult questions in its application. The majority opinion relies
primarily on Penry v. Lynaugh, [FN10] properly so. But the trail
of cases since Penry has left it near the outer limits of the Court's
willingness to conclude-that a proposed rule is not a new rule.
[FN11] For me, the import of Penry is better understood in light
of Sawyer v. Butler, [FN12] a case more representative of the
Teague jurisprudence since Penry. In Sawyer, this court en banc
addressed the claim of a habeas petitioner that the prosecutor at
his trial violated the rule announced in Caldwell v. Mississippi,
[FN13] which had been decided by the Supreme Court after
Sawyer's conviction had become final. Caldwell had held that a
prosecutor's statements to the sentencing jury in a capital case that
diminish the jury's sense of responsibility in its sentencing role
require reversal of the sentence of death. [FN14] We ruled that _
Caldwell announced a new rule, one that did not exist at the time
Sawyer's conviction became final. [FN15] Thus, our court was
barred from applying Caldwell to Sawyer's cu~e.
In concluding that Caldwell announced a new rule, we
pointed to two salient facts: First, Caldwell was the first case to
conclude that the Eighth Amendment provided the basis for
overturning a death sentence because of prosecutorial statements.
[FN16] Second, Caldwell eliminated the requirement present in
older due process cases that the defendant must show that the
prosecutor's statements rendered the trial fundamentally unfair.
[FN17] Instead, Caldwell created a presumption of fundamental
24a
unfairness that did not exist before. Thus, Ca/dwell lowered the
threshold for finding reversible error. [FN18] Sawyer stands for
the crucial principle that a rule is a new rule when its articulation
changes the elements or the burdens of proof a prisoner must
’ satisfy to prove a constitutional violation.
Sawyer also explained Penry. We observed thai, at base,
Penry was not about whether a new rule or an old rule applied;
instead, "Penry involved the consistent application of an
established constitutional rule to, in essence, changes in the
facts." [FN19] This distinction between cases presenting new
rules and cases presenting new facts is central to the functioning
of Teague. State courts cannot and need not divine the future of
federal constitutional law; they need only follow the rules extant
at the time of the defendant's conviction and appeal. Thus, Teague
prohibits federal courts from judging state-court convictions
against standards developed after those convictions became final.
On the other hand, every court--state or federal--has the duty to
faithfully apply legal rules to the distinct facts of each case.
Teague does not bar a federal court-from reviewing the
application of an old rule to new facts in state court; as we
explained in Sawyer, Penry said as much. [FN20]
*15 Since Sawyer, the Supreme Court has further articulated
the approach to law and fact in the Teague analysis:
Teague and our subsequent decisions interpreting it require a
federal court to answer an initial question, and in some cases a
second. First, it must be determined whether the decision
relied upon announced a new rule. If the answer is yes and
neither exception applies, the decision is not available to the
petitioner. If, however, the decision did not announce a new
rule, it is necessary to inquire whether granting the relief
sought would create a new rule because the prior decision is
Ses we SEL aca >
25a
applied in a novel setting, thereby extending the precedent.
[FN21]
I believe this is the arpropriate framework for analyzing
Burdine's claim.
II.
Our decision today relies on no new rule. Although the
principal dissent takes issue with this conclusion, the only rule
being applied is forty years old. The so-called Cronic rule dates
back to the 1961 decision Hamilton v. Alabama. [FN22] In
Hamilton, the Supreme Court held that absence of counsel at an
arraignment in Alabama was per se reversible. The Court
concluded that "[a]rraignment under Alabama law is a critical
stage in a criminal proceeding." [FN23] Because arraignment
was a Critical stage of the proceeding and the prisoner was denied
counsel at arraignment, the Court "[did] not stop to determine
whether prejudice resulted," but reversed his conviction. [FN24]
Thus the Cronic rule--that (1) denial of counsel at (2) a critical
stage of proceedings mandates reversal [FN25]--was established
twenty-six years before Burdine's conviction became final. Most
important, the Court in Hamilton made clear that determination of
what was a "critical stage” rested upon the facts of each case. It
acknowledged that arraignments in other jurisdictions may not be
critical to the defense. [FN26] What mattered to the Court was
that the facts of the case justified the conclusion that counsel was
denied at a critical stage.
Since Hamilton, the Supreme Court has applied the same rule
to different facts. In each case, the Court did not reformulate the
rule, but applied the pre-existing rule to a different set of facts. In
White v. Maryland, [FN27] the Court deemed a preliminary
hearin to be a critical stage. The Court looked to the facts of the
case to determine whether "rights are preserved or lost" and
26a
concluded that even if normally a preliminary hearing is not a.
critical stage in Maryland, in this case a guilty plea was entered.
[FN28] Although the defendant later reversed his plea, the initial
plea of guilty was entered into evidence at trial. [FN29] In other
cases, the Supreme Court has found denial of counsel to require
reversal even when the denial affected only a single trial decision,
[FN30] a portion of the testimony, [FN31] or closing arguments
before a judge. [FN32]
.*16 Likewise, the element of "absence of counsel" has not
been sliced to a succession of fine legal rules, but an assessment
of the facts and realities of the individual case. The Supreme
Court has held that the physical presence of counsel does not
_prevent his "absence" for purposes of the Cronic rule. [FN33] To
the contrary "absence" means simply that the defendant was
without counsel.
What is clear from this line of Supreme Court cases is that the
applicable rule in this case is not new. Absence of counsel at a
critical stage of trial renders the trial unfair and requires reversal.
What is also clear is that what constitutes a "critical stage of the
proceeding" and even "absence of counsel" depends on an
assessment of the facts of each case. Thus, the Teague issue in
this case reduces to whether, in applying an old rule to the facts of
this case, the facts are so "novel" that we in effect do not apply
the rule, but create a new rule with broader scope or greater bite.
[FN34]
The facts of this case do not test the boundaries of the Cronic
rule. That sleeping counsel is absent counsel is elementary.
Burdine's slumbering counsel presents us with a new factual
situation, hopefully rare, but not a difficult question of the
application of law to fact. [FN35] The novelty of this case stems
not from the implausibility of applying the rule to these facts, but
27a
from the stunning image of an attorney sleeping in the courtroom
while his client is on trial for his life. We are not asked to stretch
to conclude that counsel was absent in every relevant sense.
So, too, there is nothing new about concluding that the facts
of this case demonstrate that the taking of evidence against
Burdine is a critical phase of the trial. No more recently than 1963
did the Supreme Court describe a critical stage of the proceedings
as a point at which "rights are preserved or lost." [FN36] Failure
to object to the admission of evidence waives any subsequent
assertion of error. A lawyer's absence during substantial portions
of testimony cripples his ability to cross-examine the witnesses
and impairs his ability to present the defense case and jury
arguments. [FN37]
Surely the presentation of the evidence of guilt is a critical
phase. Nor is it an answer that Burdine "freely and voluntarily
confessed to his crime" (and hence that his lawyer slept didn't
matter). [FN38] This ignores both the record in this case and the
reality that the effort to persuade a jury not to vote for death often
runs, as here, throughout the guilt phase of the trial. The phrasing
of the questions, their sequence and rhythm set tone and paint a
picture. They become the platform for presenting the penalty case
and final argument. The search for the precise evidence that came
in as Burdine's counsel slept rests upon a view of trial dynamics
and reality that confounds my forty years in the courtroom. With
respect to my colleagues, that is not the way it works, and for the
same reasons it is not the law. We presume prejudice because
experience tells us that an occurrence presents both a high
probability of prejudice and a difficulty of "proving it" in any
finite sense. The law speaks of presumption not to supply a
missing ingredient, but rather to recognize its inevitable presence.
[FN39] Right to counsel at critical stages is only an example of
28a
this principle. We simply will not put a person on trial for his life
in the absence of counsel.
*17 Indeed, a lawyer asleep in the courtroom is more harmful
than one who is physically absent. A message is sent to the jury
when a defense counsel sleeps, sometimes as long as ten minutes,
the prosecutor continues to present evidence, the judge does
nothing (says he didn't see it)--all the officers of the court pay it
no mind. This is just a "slow plea": going through the motions is
the message. That is what happened. It will not do to dance away
from the facts. They were found by the state court and come to
this court unchallenged by the State.
IV. ~
The principal dissent relies heavily on a notion introduced by
Butler v. McKellar [FN40] that a habeas court cannot apply a
rule if at the time the prisoner's conviction became final the
application of the rule was "debatable among reasonable jurists."
[FN41] The dissent then cites the divided panel opinion in this
case and the Texas courts’ divergent opinions in Burdine's state
habeas case as evidence that the application of the Cronic rule
was "debatable among reasonable jurists." [FN42] It is true that
Butler implies that one can count heads to determine whether a
rule is new or not. [FN43] It is also true that the Supreme Court
has since abandoned this approach in judging reasonableness.
In Stringer v. Black, [FN44] the Supreme Court rejected the
argument that the prisoner's requested rule was new because the
Fifth Circuit had held-to the contrary before the Supreme Court
announced the rule. The Supreme Court stated, "The purpose of
the new rule doctrine is to validate reasonable interpretations of
existing precedents. Reasonableness, in this as in many other
contexts, is an objective standard, and the ultimate decision ©
29a
whether [the rule] was dictated by precedent is based on an
objective reading of the relevant cases." [FN45] The Supreme
Court tersely concluded that the decisions of two unanimous
panels of the Fifth Circuit had been unreasonable. [FN46]
Cases since Butler have rejected contentions by States that
federal habeas courts should further defer toxstate rulings of law.
The suggestion in Wright v. West [FN47] that federal courts defer
to the state courts’ application of law was made by a minority of
the Court and expressly rejected by a majority of the Justices to
consider the proposal. [FN48] Two terms zz¢, a majority of the
Supreme Court reiterated its conviction that a federal court must
make an independent judgment in applying an old rule to a set of
facts. [FN49]
*18 We must make an independent determination of the
- application of Cronic to the facts of this case. | am convinced
that precedent dictated the conclusion that Burdine's counsel was
absent during a critical stage of the trial and that a contrary
conclusion would be unreasonable, viewed objectively.
E. GRADY JOLLY, Circuit Judge, joined by JERRY E.
SMITH, Circuit Judge, dissenting:
Because the record in this case makes clear that Burdine is
plainly guilty of capital murder beyond a reasonable doubt:
because Burdine voluntarily confessed to his crime; because, even
though Burdine was fully aware that his counsel had slept at
points during the trial, he repeatedly heaped post-trial
compliments on his counsel for his performance at trial and
continually has expressed confidence in his counsel after trial:
because the record fairly establishes that Burdine's counsel
actually provided competent representation throughout the course
of the trial; because there is no suggestion in the record that
30a
Burdine suffered any prejudice on account of counsel's alleged
sleeping, that is, there is no suggestion that the outcome in this
case would have been any different on account of the allegations
now made; because Burdine waited eleven years before he ever
raised the "sleeping lawyer" claim; because there is no evidence
in the record that shows that counsel's sleeping occurred at a
critical stage in the trial, and because the now silent Burdine
apparently could have offered testimony on this point but has
chosen not to do so; and finally, because I am led to believe by ~
these facts that the "sleeping lawyer" claim is in large part a
diverting tactic to create the impression of a miscarriage of justice
in a case in which substantial justice has been done, | respectfully
dissent from the granting of habeas relief on the basis of the
"sleeping lawyer" claim. I would remand for consideration of his
other claims to determine whether any have such merit to afford
Burdine federal habeas relief.
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by
EDITH H. JONES, JERRY E. SMITH, and EMILIO M.
GARZA, Circuit Judges, dissenting:
"Bad facts make bad law." This is just such a case. The "bad
facts"--the deplorable sleeping by Calvin Jerold Burdine's court-
appointed trial counsel, Joe Frank Cannon--have, | fear, driven
the majority to make "bad law". This is vividly demonstrated by
the anomaly of the majority's stating that, for presumed-prejudice
purposes, the entire guilt phase of a capital murder trial is not a
"critical stage” (one of its bases for maintaining that, in granting
presumed-prejudice, it has not established a "new rule" for
Teague-bar purposes), while, in a special concurrence, four
judges in that majority nevertheless maintain it is such a stage.
[FN1]
3la
The majority is not alone in its abhorrence at the spectacle of
Cannon sleeping during a capital murder trial; but, our decision
must not be influenced, much less dictated, by this. In focusing so
narrowly and intently on Cannon's sleeping, the majority has lost
sight of the reasons for the Sixth Amendment's requiring effective
assistance of counsel in a criminal proceeding: adversarial testing
of the prosecution's case and reliability of the result. Two of the
key cases that shaped these contours make that plain.
*19 The benchmark for judging any claim of ineffectiveness
must be whether counsel's conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result. Strickland vy.
Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984) (emphasis added).
The right to the effective assistance of counsel is ... the right
of the accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing. When a true
adversarial criminal trial has been conducted--even if defense
counsel may have made demonstrable errors--the kind of
testing envisioned by the Sixth Amendment has occurred.
[T]he right to the effective assistance of counsel is recognized
not for its own sake, but because of the effect it has on the
ability of the accused to receive a fair trial. Absent some
effect of challenged conduct on the reliability of the trial
process, the Sixth Amendment guarantee is generally not
implicated.
United States v. Cronic, 466 U.S. 648, 656, 658, 104 S.Ct.
2039, 80 L.Ed.2d 657 (1984) (emphasis added; footnote omitted).
This being a capital murder case does not alter this. See
Strickland, 466 U.S. at 686.
The majority only pays lip service to these factors, Maj. Op.
at ---- - ---- ; It avoids applying them to this case. For example, it
32a
does not even mention Burdine's confession and Cannon's
repeated efforts to keep it from the jury. Nor does it mention
Burdine's testimony in which he admitted both robbing the victim
and being present at his murder. The prosecution's case was more
than tested; the result, more than reliable. Cannon's sleeping does
not change that.
The extra-judicially, recently revealed evidence withheld by
Burdine concerning his nudging Cannon during trial when he
slept is very relevant to Burdine’s presumed-prejudice-due-to-
Cannon's-sleeping claim. (This new evidence was confirmed by
Burdine's counsel at en banc oral argument.) The majority,
however, does not mention it, except, in response to this dissent,
summarily stating in a footnote that, in essence, Burdine's
knowledge at trial about Cannon's sleeping, the resulting action
Burdine took (and did not take) at trial and post-judgment, and
this evidence-withholding do not matter. Maj. Op. at ---- n. 10.
The special concurrence does not mention the subject. But the
withheld evidence colors this entire appeal; we cannot disregard
it. Moreover, this twelfth-hour revelation transforms this
presumed-prejudice claim into one totally different from that for
which our court granted en banc review. On this basis alone, we
should reverse and remand. At the very least, we should remand
for the district court to develop this evidence, and its implications
regarding the presumed-prejudice claim.
In short, this appeal, this presumed-prejudice claim, is just not
as simple, just not as cut-and-dried, as the majority and,
especially, the special concurrence would have it. Our court does
not write on a clean slate; we must deal with long-established
precedent designed to accommodate the strong competing
interests at play when presumed-prejudice is claimed. To resolve
this difficult and emotional claim, we must go back to first
principles. | regret greatly that our court has not done so. | will.
33a
*20 Accordingly, in addition to pointing out the general
overall errors in the majority's analysis (part |., 5-17), and
discussing the underlying proceedings, including Cannon's efforts
to keep out Burdine's confession (part III., 23-38), this dissent
goes into the requisite detail to cover the sub- issues raised by
Burdine's presumed-prejudice claim:
[x] Whether Burdine's evidence-withholding affects, if not
forecloses, his claim (part II., 17-23):
[x] Whether, on the facts at hand (including the impossibility
of determining when Cannon slept in conjunction with what
was then taking place at trial), to grant presumed-prejudice is
to retroactively apply a "new" rule, in violation of precedent
barring such procedure (part [V.A.1., 43-73):
[x] Whether, even if allowing presumed-prejudice for
Cannon's sleeping is a new rule, it nevertheless meets one of
the exceptions to barring its retroactive application (part
IV.A.2., 73-81); and
(x] Whether, even if allowing presumed-prejudice for
Cannon's sleeping is not a new rule, Burdine, on the record at -
hand, satisfies the elements for that rule (part 1V.B., 81-102).
Before addressing the underlying facts and usual issues
involved for presumed- prejudice vel non, we must address the
unique issues surrounding Burdine's knowing during trial about
Cannon's sleeping, but not raising it as an issue until 11 years
later, and even then withholding evidence about it. The subject
bears on Burdine's presumed-prejudice claim; on the conduct of
his habeas counsel, Robert Lee McGlasson, II, who elected not to
present (withheld) this evidence; and_on the integrity of this
proceeding and this court. See part II., infra.
34a
This aside, in reviewing a solemn state judgment, and
although it denies doing so, the majority creates a "new" rule for
presumed-prejudice and applies it retroactively, contrary to
binding precedent. Under this new rule, the requisite prejudice for
an ineffective-assistance claim is to be presumed because of the
"repeated unconsciousness of [Cannon] through not insubstantial
portions of the critical guilt-innocence phase of Burdine's capital
murder trial". Maj. Op. at ----. But, the majority seeks to
immediately wipe away the new rule it has just labored mightily
to confect by holding this rule "is limited to the egregious facts
found by the state habeas court". /d. Truly, this raises result-
driven jurisprudence to a new level.
Under Supreme Court and our precedent, the majority's "new"
rule cannot be applied retroactively to this habeas claim. But,
even if the rule is not "new", it cannot be applied to this case
because, in the light of the state habeas court factual findings
(state-findings), and contrary to the majority's characterization of
them, Cannon was not "repeatedly unconscious through not
insubstantial portions of the ... trial". /d. at 8.
*21 Overarching all of this are three actions by the majority
which turn the basis for presumed-prejudice on its head. That
doctrine is designed for instances of deficient attorney-
performance that are so obvious and so easy to identify, and
where resulting prejudice is so likely, that examination of the
record for prejudice vel non is not worth the cost of doing so.
First, the majority allows presumed-prejudice, even though
the claim based on such (in its words) "egregious facts" was not
raised until a second state habeas application, 11 years after the
trial. If these facts were so egregious, the claim would have been
more than obvious to Burdine during trial and, most especially, in
the light of his recent withheld-evidence admission.
35a
Second, the majority does not just allow, it rewards, this
evidence- withholding, about which our en banc court inquired,
sua sponte, at oral argument. This admission is not only cause for
rejecting presumed-prejudice but also, on remand, for requiring
an evidentiary hearing concerning the withheld- evidence and this
possibly improper tactic by Burdine's habeas counsel.
Third, contrary to the procedure established for the narrow
circumstances and resulting limited instances in which a court is
to award presumed-prejudice, the majority has had to examine the
record, shepherd the state-findings favorable to its position, turn a
blind eye to those unfavorable (including the withheld-evidence),
and make unwarranted inferences about those facts in order to.
with the greatest effort, shoehorn this case into its new--
momentarily lived--rule.
This is precisely how the presumed-prejudice doctrine is not
supposed to work. In short, what the majority has done with its
new rule flies in the face of the principles underlying both
nonretroactivity for federal habeas concerning state prisoners and
implementation of presumed-prejudice.
The solemn state judgment of Burdine's guilt is not before us.
Instead, we are reviewing a subsequent, equally solemn state
judgment that he received the assistance of counsel necessary for
a fair trial. The sole issue at hand is whether prejudice resulting
from ineffective-assistance must be proved by Burdine, as is the
usual case, or, instead and as is very rare, is to be presumed.
Presumed-prejudice vel non is a profoundly important issue; it
touches on compelling interests of finality and comity. It must be
decided by applying binding precedent.
Three Supreme Court decisions, two of which were rendered
on the same day and are quoted from earlier, provide the primary
36a
guidance for our review: United States v. Cronic and Strickland v.
Washington, 466 U.S. 648 and 668, 104 S.Ct. 2039, 80 L.Ed.2d
657, respectively (1984); and Teague v. Lane, 489 U.S. 288, 109
S.Ct. 1060, 103 L.Ed.2d 334 (1989). First, proving ineffective-
assistance violative of the Sixth Amendment ordinarily requires
showing both that counsel rendered deficient performance, and
that there is a reasonable probability that, but for that deficient
performance, the result of the proceeding would have been
different. Strickland, 466 U.S. at 687, 694. Second, in certain
narrow circumstances (including denial of counsel at a "critical
stage" of the proceeding) where prejudice is so likely that case-
by-case inquiry is not worth the cost, prejudice will be presumed.
Id. at 692; Cronic, 466 U.S. at 658-59. Third, "new" rules of
criminal procedure will not be applied retroactively on collateral
review unless certain narrow exceptions apply; "a case announces
a new rule if the result was not dictated by precedent existing at
the time the defendant's conviction became final". Teague, 489
U.S. at 301 (plurality) (emphasis in original). The special
concurrence assists in this respect: by underscoring that
implementing Teague is neither a "legal technicality", Sp. Con. at
----, nor "an equitable doctrine", id. at 3.
We are not a state habeas court; we cannot make factual
findings. The key binding/controlling state-finding is that Cannon
*22 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.
Ex parte Burdine, No. 379,444-B, at 13 (183d Dist. Ct. Harris
County, Tex., 4 April 1995) (emphasis added). Concerning
presumed-prejudice, this is the only state-finding that even
approaches being specific. But, of utmost importance, and
contrary to the majority's rule ( again, applied only to this case),
there is no_ state-finding that Cannon was "repeatedly
es ek PRR EA OT TIS hie. OE
Pee RK ARS.
37a
unconscious" during "substantial" portions of the trial. Likewise,
there are no state- findings as to:
[x] When Cannon "dozed" as opposed to "slept";
[x] How long he slept, individually and collectively;
[x] How many times he slept;
[x] How deeply he slept;
fx] What happened while he slept, including which
witness(es) was(were) testifying or other evidence was being
presented; and
[x] When the sleeping occurred--which day(s), or whether
during the morning or afternoon.
Moreover, the state habeas trial court did not discredit
testimony by the trial judge and prosecutor that they did not
observe Cannon sleeping. Because Burdine waited 11 years to
raise the claim, memories have, of course, faded, making it
impossible to determine what evidence was being presented while
Cannon slept. To make matters worse, Burdine withheld criticai
evidence on this point.
_ In any event, the majority's rule is based on two factual
premises not found by the state habeas court: (1) Cannon was
"repeatedly unconscious", (2) for "not insubstantial" portions of
trial. Maj. Op. at ----, ----. To overcome what should be an
insurmountable obstacle for habeas review, the majority posits
that, although "the state habeas court used slightly different
language" in describing the sleep-episodes, "each variation
reflects that Cannon slept on multiple occasions during the guilt-
innocence phase of Burdine's trial". /d. at 6 n. 2. But, none of the
various ways in which the state habeas court described Cannon's
"dozing" and/or "sleeping" justifies the majority's claim that those
findings "support the fact that Burdine's counsel was unconscious,
and hence absent, repeatedly throughout the guilt-innocence
phase of Burdine's trial as evidence was being produced against
Burdine". /d. at 25.
38a
In a finding separate from the controlling finding quoted
earlier (Cannon "dozed and actually fell asleep during portions of
[Burdine's] trial"), the state habeas trial court stated it did "not
discredit the testimony of [the prosecutor] and [the trial judge that
they did not see Cannon sleeping] in [its] finding that [Cannon]
repeatedly dozed and or actually slept at trial". Ex parte Burdine,
No. 379,444-B, at 14. Regarding Cannon's inattentiveness,
however, we do not know from these findings the difference
between "dozing" and "sleeping". (The different forms of
inattention usually will be referred to collectively as "sleep".)
Likewise, the state habeas trial court made no finding that
Cannon's dozing or sleeping reached the level of
"unconsciousness". [FN2] Moreover, the testimony of the
witnesses at the state habeas evidentiary hearing--describing
Cannon as "dozing", "nodding", "bobbing his head", and
"asleep"--do not support the majority's assumption that Cannon
was, aS a result, "repeatedly unconscious". As the Second Circuit
recognized in Tippins v. Walker, 77 F.3d 682, 689 (2d Cir.1996),
"consciousness and sleep form a continuum, and ... there are
states of drowsiness that come over everyone from time to time
during a working day, or during a trial". Instead, as discussed in
note 2, supra, the majority, lacking both evidentiary and legal
support, has made its own factual finding that the dozing and/or
sleeping "repeatedly" reached "unconsciousness". This it cannot
do.
*23 Even assuming arguendo Cannon was "unconscious"
each time he slept, the majority does not define "not
insubstantial". Does it intend for substantiality to be judged by
the length of sleep, or is it to be based on the significance of the
evidence being presented while counsel slept and its impact on
the defense? See id. at 685 ("The word ‘substantial’ ... is
unhelpful. It can refer to the length of time counsel slept, or the
> ee pat A ee
AL Ve SK BR OR Mite b Ties eee Se sow hy At I 3
39a
proportion of the proceedings missed, or the significance of those
proceedings."). In the light of the majority's stated refusal to
adopt a per se rule that the entire trial is a "critical stage", and the
impossibility, on this record, of determining when Cannon slept,
the majority apparently has chosen the former--length of sleep-
time. Yet there is no quantitative state-finding upon which to base
the majority's conclusion that Cannon was "repeatedly
unconscious through not insubstantial portions" of the trial. [FN3]
The witnesses’ testimony at the state habeas evidentiary
héaring was not consistent with regard to whether Cannon slept,
much less how many times he did so, when, and for how long. In
the light of those inconsistencies, the lack of a state-finding
quantifying the frequency or length of Cannon's dozing or
sleeping is quite understandable. [FN4]
Is "not insubstantial" the same as "substantial"? Of course,
"substantial" has many uses in the legal context. [FN5] In
discussing whether a stage of a criminal proceeding is "critical",
the majority states the Supreme Court has considered whether
"the substantial rights of a defendant may be affected". Maj. Op.
at ----. Black's Law Dictionary defines "substantial right" as "[a]n
essential right that potentially affects the outcome of a lawsuit
and is capable of legal enforcement and protection, as
distinguished from a mere technical or procedural right”.
BLACK'S LAW DICTIONARY 1324-(7th ed.1999). [FN6] But,
in holding that Cannon's being "repeatedly unconscious for not
insubstantial" portions of the guilt-innocence phase of a capital
murder trial warrants presuming prejudice, the majority does not
attempt to determine whether the evidence presented while the
sleeping occurred affected Burdine's "substantial rights". It cannot
do so on this record.
40a
Perhaps the majority views "substantiality" as a continuum, in
which there is some middle ground which is neither "substantial"
nor "insubstantial". In any event, the majority gives no guidance
to federal habeas courts, which may well in the future consider
similar claims, regarding how to determine whether sleeping is
"not insubstantial", when, as in this case, there is no state- finding
of substantiality (quantitative or qualitative).
*24 Despite the majority's attempt to limit its rule solely "to
the egregious facts found by the state habeas court", Maj. Op. at -
---, its rule will not be applied just in this case. The majority can
limit the holding to this record; but otherwise, the rule must be
shaped so that it can be applied-- as it may well be--in future
cases. This rule, however, will result in uncertainty and
undermine accuracy. For example, how many minutes of
sleeping, or how many nods or head bobs will trigger presumed-
prejudice? Moreover, allowing presumed-prejudice under these
circumstances will encourage defendants not to bring observed
sleeping by their counsel to the attention of the court during trial
and not to raise the claim on direct appeal, which undermines the
strong interest in finality recognized in Jeague and its progeny.
Finally, the rule imposes a new obligation on the States in our
circuit, by requiring trial judges and prosecutors to closely and
unceasingly monitor defense counsel throughout trial to ensure
defense counsel is awake. If counsel closes his eyes even
momentarily, the trial judge or prosecutor had best stop the trial
and inquire, "Are you awal.e?” Nothing in Cronic comes close to
dictating such a result.
Because, as a federal habeas appellate court, we do not engage
in fact- finding, we cannot do as the majority has done and find
Cannon was "repeatedly unconscious through not insubstantial
portions" of trial. Indeed, the solemn state judgment under review
rejected the state habeas trial court's recomimended conclusion of
PT ee a SEP EAE eM, ee EE) OE THe 'Y WNW Ea
Rea RNY le wil RL TOES Ree et tes BLAIR Ie
4la
law that simply repeated Burdine's "allegation" that Cannon
"repeatedly dozed and/or ,actually slept during substantial
portions" of trial. See Ex parte Burdine, No. 16,725-06, at 1, 901
S.W.2d 456 (Tex.Crim.App.), cert. denied, 515 U.S. 1107, 115
S.Ct. 2256, 132 L.Ed.2d 263 (1995); Ex parte Burdine, No.
379,444-B, at 18-19. In rejecting/disavowing that conclusion, the
Texas Court of Criminal Appeals held: Burdine must prove
actual prejudice under the Strickland two-prong test; and he
failed to do so. Ex parte Burdine, No. 16,725-06, at 1. As
discussed infra, it may well be that, in citing Strickland, the Court
of Criminal Appeals was citing the portion discussing the narrow
circumstances for presumed-prejudice. In any event, it rejected
the recommended conclusion that Burdine had established such
circumstances. /d.
In sum, the majority has turned its back on the ratio decidendi
for the Supreme Court cases that must inform our analysis:
- Teague, decided 12 years ago; and Cronic and Strickland, decided
17 years ago. Each serves a strong interest. The fact That this is a
capital murder case does not change that. But, the fact that
Burdine waited 11 years to assert the claim, and then withheld
crucial evidence, most certainly should guide our analysis,
because these tactics strike at the very goals Teague was designed
to foster and protect: finality and comity.
*25 Therefore, | must respectfully dissent. | would hold that,
under the circumstances of this case, prejudice must be proved.
Accordingly, I would remand on that and the myriad ineffective
assistance and other issues Burdine raised in his federal habeas
application. which the district court did not address. See notes 18-
19, infra. It may well be that, on remand, Burdine could, inter
alia, satisfy the Strickland two-prong test for ineffective
assistance and be accorded a new trial on that basis.
42a
Il.
Notwithstanding Burdine's sitting beside Cannon throughout
trial, the record contains no affidavit or testimony by Burdine
regarding Cannon's sleeping. But, at oral argument before our en
banc court, Burdine's habeas counsel admitted he withheld
evidence that, at times, Burdine nudged Cannon during trial to
awaken him. For the first time in this lengthy state and federal
habeas process (since 1987), this crucial evidence has come to
light. Had it been timely presented, it could have had a profound
impact, certainly on presumed-prejudice ve/ non. Perhaps, this
evidence would have easily pinpointed the portions of the trial
during which Cannon slept (such easy identification being an
essential element for presumed-prejudice). At the very least, it
would have assisted in developing the record on that issue.
This sea change for this extremely belated presumed-
prejudice claim began when, on 28 October 2000, in an interview
the day after the panel opinion was rendered, Burdine's counsel,
for the first time, claimed Burdine kept trying to awaken Cannon
during trial. [FN7] When asked at en banc oral argument why that
crucial evidence had not been presented in support of Burdine's
claim, his counsel responded that Burdine was entitled to choose
what evidence to present.
In general, that is true. But, the evidence has been piaced in
front of us. [FN8] In effect, through this extra-judicial admission,
Burdine's habeas counsel has supplemented the record, albeit in a
most unusual way. For our court to disregard it is to fail to do our
duty. |
Now that we have this evidence, it goes without saying that
Burdine cannot have it both ways. Knowing what we now know,
we cannot allow Burdine, on the one hand, to have withheld
43a
during the state habeas proceeding such evidence which might
have pinpointed when Cannon was sleeping, while, on the other
hand, continuing to claim presumed-prejudice based primarily
upon one extremely broad state-finding, that, in turn, was based
upon extremely non-specific evidence. In other words, knowing
whai we now know, Burdine cannot be allowed to be sheltered by
the very uncertainty that assists, if not causes, the majority to
presume prejudice. The majority allows him to do so. Again, it
does not even mention this tactic, other than, in response to this
dissent, stating it has no bearing on its presumed-prejudice
analysis. Maj. Op. at ---- n. 10. [FN9]
Because a habeas proceeding is civil in nature, Burdine had
the burden of proving his claims by a preponderance of the
evidence, including that Cannon slept during a critical stage of
trial. See Browder v. Dir., Dep't. of Corr. of Ill., 434 U.S. 257,
269, 98 S.Ct. 556, 54 L.Ed.2d 521 (1978); Walker v. Johnston,
312 U.S. 275, 286, 61 S.Ct. 574, 85 L.Ed. 830 (1941); Irving v.
Breazeale, 400 F.2d 231, 236 (5th Cir.1968). In the light of our
now knowing this key evidence, which Burdine elected not to
present, we should, at the very least, employ the uncalled-witness
rule. This new evidence about nudging Cannon, which Burdine
did not present to the state habeas court, permits a negative
inference. See, e.g., Streber v. Comm'r of Internal Revenue, 138
F.3d 216, 221 (Sth Cir.1998) (court may draw negative inference
from party's failure to produce witness " 'whose testimony would
elucidate the transaction’ " (quoting Graves v. United States, 150
U.S. 118, 121, 14 S.Ct. 40, 37 L.Ed. 1021 (1893))); Gumbs v. Int']
Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983) (party's
unexplained failure or refusal to produce evidence that would
tend to throw light on issues authorizes inference that such
evidence would be unfavorable to that party).
44a
*26 Although, as an appellate court, we do not find facts, we
can (here, sua sponte ) conclude as a matter of law that, had the
state habeas court been aware of this withheld-evidence, it would
have drawn a negative inference. Cf Albiar v. State, 739 S.W.2d
360, 362-63 (Tex.Crim.App.1987) (en banc) (in criminal case,
prosecutor may comment in closing argument on defendant's
failure "to call a competent and material witness, when it is
shown that such witness was available to testify on behalf of the
defendant, but was not called by ihe defendant to testify"; "failure
to produce available evidence justifies an inference that it would
be unfavorable to the defendant"); Jnterest of P.A.O., M.P.O., &
S.L.O., No. 08-98-00436-CV, 2001 WL 175620, at *13
(Tex.App.--El Paso 22 Feb.2001) (unpublished) (in proceeding
for termination of parental rights, "jury could draw whatever
inference was reasonable under the circumstances [because] ...
‘Fifth Amendment does not forbid adverse inferences against
parties to civil actions when they refuse to testify in response to
probative evidence offered against them' " (quoting Baxter v.
Paimigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 47 L.Ed.2d 810
(1976))). [FN10] If for no other reason, we must do so in order to
protect the integrity of our court and this proceeding. Cf Int'l
Union, United Auto., Aerospace & Agric. Implement Workers of
Am. (UAW) v. Nat'l Labor Relations Bd., 459 F.2d 1329, 1339
(D.C.Cir.1972) ("the adverse inference rule plays a vital role in
protecting the integrity of the administrative process in cases
where a subpoena is ignored").
Accordingly, because Burdine's habeas counsel chose to
present this crucial evidence only extra-judicially, and to do so
only after completion of the proceedings in the state habeas court
and in the federal district court, we are justified in concluding that
the state habeas court would have made the following inference
adverse to Burdine: had Burdine testified at the state habeas
evidentiary hearing, he would have pinpointed the sleeping
45a
episodes as having occurred during the presentation of
uncontested evidence, for which no response or other action
would have been required by Burdine's trial counsel, Cannon.
Obviously, this adverse inference would be fatal to his claim that
the sleeping occurred at a "critical stage". Therefore, on this basis
alone, we should reject presumed-prejudice. [FN11] If not, we
should remand to the district court to develop this evidence and
its bearing on the presumed- prejudice claim. At the very least,
the evidence-withholding admission colors Burdine's presumed-
prejudice claim.
III.
*27 The underlying murder was committed 18 years ago.
Since then, in addition to the trial (1984) and direct appeal
(1986), there have been two state habeas applications (1987,
supplemented in 1988 and August 1994, and December 1994) and
the pending federal application (1995). The majority ignores the
underlying facts (especially Burdine's result-dictating confession
and Cannon's attempts to keep it out) and, for the most part, the
prior proceedings. They must, however, be examined in order to
conduct the analyses mandated for the presumed-prejudice claim
and the Teague-bar vel non.
A. -
The opinion of the Texas Court of Criminal Appeals,
affirming the conviction and sentence on direct appeal, details
well the facts underlying Burdine's capital murder conviction.
The issue at hand compels repeating that recitation.
On April 20, 1983, the body of the victim, Wise, was
discovered lying face down in the north bedroom of his
trailer. Wise's hands and legs were bound with cord, and his
46a
mouth was gagged. There was a stab wound on Wise's back
and blood in the shoulder area and hair.
The State established through competent medical testimony
that the cause of Wise's death was two stab wounds to the
back. Wise's scalp was lacerated; his mouth was gagged with
socks and a pillowcase. The force of the stab wounds was
sufficient to break Wise's rib. One of the knife wounds
appeared to have been caused by the knife offered in evidence
by the State.
The police determined that several items were missing from
Wise's trailer: [among other things,] a television, ... handgun,
automatic bank teller card, ... and items of clothing. The serial
number on the handgun was entered into the National Crime
Information Center computer. The gun was described as a
Smith and Wesson revolver, gold- and nickel-plated with
pearl handles.
[Burdine] gave an extrajudicial confession to the murder. He
also testified at trial, where he limited his participation in the
killing to that of an accomplice to the aggravated robbery of
Wise. -
Viewed in the light most favorable to the prosecution, the
evidence showed that [Burdine] and Wise met in November
of 1982. The two men had a homosexual relationship which
continued for approximately three and a half months while
[Burdine] was living with Wise. Wise, a night supervisor at
Statewide Security Service, obtained a job at the security
company for [Burdine].
*28 Eventually, [Burdine] and Wise quarreled about the-
manner in which Wise handled [Burdine]'s earnings.
[Burdine] testified that Wise asked him to move from the
trailer after [Burdine] refused to prostitute himself for Wise.
[Burdine] moved out, and approximately two weeks later he
resigned his job at the security company. According to
[Burdine], Wise subsequently "put a contract out on him."
47a
[Burdine] then met Douglas McCreight, a homosexual male,
who did not know Wise. On April 18, 1983, [Burdine] and
McCreight decided to go to Wise's trailer in order to get
money from him. The money was to be obtained either
voluntarily or through robbery. [Burdine] warned McCreight
not to try anything "funny" with Wise in his bedroom,
because Wise kept a gun there.
Soon after they entered the trailer, McCreight asked to use the
bathroom. [Burdine] and Wise remained in the living room.
When McCreight returned to the living room, he was wearing
a pair of gloves and carrying Wise's gun and a large hunting
knife. McCreight then ordered Wise to lie on the floor.
McCreight removed Wise's glasses, and [Burdine] directed
McCreight to take the cord from the telephone; the cord was
used to bind Wise's wrists. [Burdine] told McCreight that
something was needed to keep Wise quiet, because he would
"squeal like a pig in a slaughterhouse."
[Burdine] retrieved a pair of socks, which McCreight stuffed
in Wise's mouth, and a section of sheet, which [Burdine] used
to tie the gag in place. At this point, [Burdine] and McCreight
made Wise move to another part of the trailer, where they
would be less likely to be seen by a neighbor. [Burdine] and
McCreight began to stack items in the living room by the
front door so that they could take them later.
[Burdine] and McCreight then decided that "something had to
be done" with Wise because he could identify [Burdine].
McCreight cut the electrical cord of a clock radio and bound
Wise's legs with it. [Burdine] and McCreight then
unsuccessfully attempted to smother Wise to death. They
placed Wise face down on the bed with his face on a pillow.
McCreight held a pillow over Wise's head, and [Burdine] held
Wise's feet. Wise thrashed around on the bed so much that
McCreight was unable to smother him, and Wise sat up on the
bed, whimpering and crying. After further discussion,
48a
{Burdine] directed McCreight to hit the top of Wise's head
with a lead-filled police sap. McCreight struck Wise several
times; Wise bled profusely and lay still.
McCreight and [Burdine] then left the trailer, taking the stolen
items with them. They discussed Wise and again decided that
something needed to be done so that he could not identify
{Burdine]. After re-entering the bedroom, McCreight made
the sign of the cross and then stabbed Wise in the back.
[Burdine] then told McCreight, "What the hell, hand me the
knife," and [Burdine] also stabbed Wise in the back.
{Burdine] and McCreight left the trailer and drove to Austin.
While in Austin, [Burdine] pawned a television set and
obtained money from different automatic teller machines
using Wise's bank card. [Burdine] and McCreight proceeded
from Austin to—€ahfornia. After they arrived in Eureka,
California, they pawned Wise’s gun for thirty dollars. Within
thirty minutes of this transaction, both men were arrested at a
local gas station.
*29 After hearing from the Eureka, California police
department that Wise's gun had been recovered, Detectives
G.T. Neely and R.W. Holland, both Houston police officers,
traveled to California on April 28 [ten days after the murder].
They met McCreight and [Burdine] at the local courthouse. Af
[Burdine]'s initial appearance before a magistrate, he was
given Miranda warnings.
The officers then conducted separate interviews of McCreight
and [Burdine]. /Burdine] was again given Miranda warnings
by Detective Neely. [Burdine] then gave the officers an oral
statement and consented to the search of the pickup truck
which he had been driving at the time of his arrest.
In the back of [Burdine]'s truck, the officers found a large
hunting knife and some property which had been taken from
Wise's trailer, including a suitcase, articles of clothing, some
eight-track tapes, and several pieces of jewelry. Pursuant to
49a
[Burdine]'s statement, Wise's television and ring were
recovered in Austin.
At trial, [Burdine] testified that only McCreight stabbed Wise.
However, [Burdine] admitted that he had anticipated some
violence when he and McCreight went to Wise's trailer. He
also admitted that he told McCreight where Wise kept his
gun, that he warned McCreight that Wise would "scream like
a stuck hog," and that he told McCreight to gag Wise and to
take Wise to the back of the trailer if he were going "to do
anything." Further, [Burdine] admitted that he took Wise's
property, that he used Wise's automatic bank teller card to
obtain money in Austin, and that he pawned the television in
Austin.
Burdine’ vy. State, 719 S.W.2d 309, 312-14
(Tex.Crim.App.1986) (emphasis added; footnote omitted), cert.
denied, 480 U.S. 940, 107 S.Ct. 1590, 94 L.Ed.2d 779 (1987).
B.
At trial, Cannon's theory of defense was: McCreight
instigated the murder; Burdine, who was recovering from lung-
removal surgery, was too weak to have participated in the
stabbing (Cannon had Burdine exhibit his surgical scars to the
jury); and Wise had taken advantage of Burdine, stealing his
money, harassing and threatening him, including putting out
contracts to physically harm him, and attempting to force him to
prostitute himself.
An examination of the state court record reveals that, despite
Cannon's sleeping during unidentified portions of the trial, there
was a meaningful adversarial testing of the State's case. Cannon
filed pre-trial motions, including for discovery, inspection, and
production of evidence, such as Wise's criminal and employment
records and photo albums of nude boys allegedly found in Wise's
eS ee
50a
residence after the murder. At trial, Cannon cross-examined the
State's witnesses, made objections, and presented witnesses on
behalf of Burdine. Most importantly, Cannon vigorously
contested the admissibility of Burdine's confession--obviously,
the key evidence of his guilt. See Pyles v. Johnson, 136 F.3d 986,
996 (Sth Cir.) (defendant's "confession was probably the most
probative and damaging evidence that could be admitted against
him" (internal quotation marks, citation, and brackets omitted)),
cert. denied, 524 U.S. 933, 118 S.Ct. 2338, 141 L.Ed.2d 707
(1998).
During parts of the first and second days of trial, a hearing
was held on Burdine's motion to suppress that confession. At that
hearing, Burdine testified: he asked for a lawyer prior to making
the statement in California, but was told by Houston detectives he
would not need an attorney because one would be appointed for
him on his return to Texas; and, he twice told the detectives he
did not participate in stabbing Wise, but they forced him to
confess, telling him he could not return to Texas until he admitted
his involvement in the murder. Cannon argued that the confession
was not voluntary and should not be admitted. The motion was
overruled.
*30 When Burdine subsequently testified at the guilt-
innocence phase of trial, he admitted his participation in the
robbery, but denied stabbing Wise. Regarding his confession, his
testimony was consistent with his suppression hearing testimony.
And, the jury was instructed on voluntariness.
At the penalty phase, outside the presence of the jury and
against Cannon's advice, Burdine declined to testify. Immediately
thereafter, in the presence of the jury, Cannon asked Burdine if he
wished "to take the stand and plead for [his] life". Before being
Sla
interrupted by the trial judge, Burdine responded to Cannon: "No.
sir, they didn't listen to me the first time, | don't see--".
At the conclusion of the penalty phase, Cannon asked Burdine if
he wanted him (Cannon) to handle the appeal or whether he
wanted the court to appoint someone else. Burdine replied: "Your
Honor, with the court's permission, | would like to have Mr. Joe
Cannon represent me".
oa
On direct appeal, Burdine, represented by Cannon, raised 17
points of error, including the admission of his confession.
Burdine, 719 S.W.2d at 312. [FN12] Regarding his confession,
Burdine claimed: it was obtained in violation of his right to
counsel; it was induced by police trickery; and the officers’
promise to return him to Houston quickly if he confessed
rendered it involuntary. /d. at 317.
In October 1986, the Texas Court of Criminal Appeals
affirmed the conviction and sentence. /d. at 309. As for the
confession, the court held that the record supported the trial
court's findings that Burdine waived his right to counsel, received
_ No promises, and was in good physical condition at that time. /d
at 318. The court also held: even if Burdine's confession were
disregarded, the evidence was sufficient to support a conviction
under the law of the parties. /d. at 315. The Supreme Court denied
certiorari in March 1987. Burdine v. Texas, 480 U.S. 940, 107
S.Ct. 1590, 94 L.Ed.2d 779 (1987).
D.
Represented by new counsel, Burdine filed his first state
habeas application in July 1987, presenting approximately ten
S2a
claims, including that his custodial statements were admitted in
violation of the Constitution and that he was denied etfective-
assistance at trial and on direct appeal. [FN13] For the
ineffective-assistance claim, Burdine presented approximately ten
bases, including that Cannon was ineffective in cross-examination
of witnesses, in arguments, and in preparation and presentation of
the defense. [FNI4] And, in March 1988, Burdine filed a
supplemental state habeas application, adding several claims.
[FN15] -
That September, a special master appointed by the state
habeas trial court conducted a three-day evidentiary hearing, at
which Cannon, among others, was called as a witness by Burdine
and testified regarding his theory of defense and his investigation
of possible mitigating evidence. [FN16] Two years later, in
October 1990, the court-appointed master made _ proposed
findings of fact and conclusions of law and recommended
vacating Burdine's sentence, based on the prosecutor's comments
about homosexuality during closing argument, as well as on
Cannon's performance at the penalty phase. With regard to the
latter, the special master recommended presumed-prejudice under
‘Cronic ; alternatively, that Burdine had established prejudice
under the Strickland two-prong test. But, nearly four years later,
in June 1994, the state habeas trial court recommended that the
Texas Court of Criminal Appeals deny relief. Ex parte Burdine,
No. 379,444-A (183d Dist. Ct. Harris County, Texas, 29 June
1994). That same month, Burdine filed a second supplemental
state habeas application, claiming, under the Eighth and
Fourteenth Amendments, the State had forfeited its right to
execute him, because of various forms of post- conviction torture.
*31 That December (1994), the Court of Criminal Appeals
denied relief. Ex parte Burdine, No. 16,725-02 (Tex.Crim.App.
12 Dec. 1994). Four days later, the state habeas trial court issued
S3a
supplemental findings of fact and conclusions of law,
recommending that the State had not forfeited its right to execute
Burdine.
Burdine filed a second state habeas application later that
month, nearly 11 years after trial. Among other claims. he
asserted for the first time that Cannon dozed and/or slept
repeatedly at trial. The application states that the factual basis for
that claim was not known te counsel until 27 December 1994,
when the jury foreman informed counsel's investigator that
Cannon slept during portions of Burdine's trial. [FN17]
Regarding Burdine's Cannon-slept-claim, the state trial court
conducted an evidentiary hearing in February 1995. At that
hearing, described in detail infra, Burdine, as noted, did not
testify, nor did he submit an affidavit, concerning the claimed
sleeping. As also noted, his counsel withheld the evidence,
recently revealed, that Burdine nudged Cannon during trial.
Burdine presented the testimony of three jurors, the prosecutor,
the trial judge, the court clerk, the trial judge's court coordinator
(who had testified in the first state habeas evidentiary hearing),
and an attorney who had served as co- counsel with Cannon on
another capital murder case. The State presented the testimony of
Cannon and one juror.
That April, the state habeas trial court recommended granting
relief, finding, inter alia: Cannon "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". Ex parte
Burdine, No. 379,444-B, at 13. Its recommended Conclusion of
Law number | provided Burdine had established per se
S4da
ineffective assistance of counsel based on the allegation that
[Cannon] repeatedly dozed and/or actually slept during
substantial portions of [Burdine's] capital murder trial so that
[Cannon] was, in effect, absent and that such conduct by
(Cannon] is inherently prejudicial and thus no showing of
prejudice is necessary.
*32 /d. at 18-19 (emphasis added).
But, as noted supra and of critical importance here, later that
month the Court of Criminal Appeals expressly rejected that
recommended conclusion, ruling instead: although the trial court's
factual findings were supported by the record, Burdine was not
entitled to relief because he had failed to meet his burden of proof
under Strickland. Ex parte Burdine, No. 16,725-06, at 1, 901
S.W.2d 456. The Supreme Court denied certiorari on 30 May
1995. Burdine v. Texas, 515 U.S. 1107, 115 S.Ct. 2256, 132
L.Ed.2d 263 (1995).
,.
Meanwhile, in April 1995, Burdine sought federal habeas
relief. He presented ten claims, including ineffective-assistance.
[FN18] Burdine's ineffective- assistance claim, in addition to
asserting presumed-prejudice because Cannon slept during trial,
listed 14 other bases. [FN19]
In September 1999, without addressing the remaining claims,
the district court granted relief on the presumed-prejudice claim.
Burdine v. Johnson, 66 F.Supp.2d 854 (S.D.Tex.1999). It adopted
the rule of Javor v. United States, 724 F.2d 831, 834 (9th
Cir.1984), decided before Cronic, that prejudice must be
presumed if counsel slept for a "substantial portion" of trial.
Burdine, 66 F.Supp.2d at 862. To determine what constituted a
"substantial portion", however, the district court applied the
analysis announced in Jippins, 77 F.3d 682, decided in 1996.
long after completion of Burdine's trial, appeals, and state habeas
proceedings: "(1) did counsel sleep for repeated and/or prolonged
lapses; (2) was counsel actually unconscious; and (3) were the
defendant's interests at stake while counsel was asleep". Burdine,
66 F.Supp.2d at 863-64. In applying the first element of ‘the
/ippins analysis, the district court stated:
The state [habeas trial] court concluded { (not found) } that
Cannon slept for numerous periods of time and the sleeping
was "substantial." These findings of fact were explicitly
adopted by the Texas Court of Criminal Appeals. This Court
finds, pursuant to the presumption of correctness standard.
that Cannon slept on numerous occasions throughout
Burdine's criminal trial and for substantial periods of time.
Id. at 865 (emphasis added).
The district court failed to note there was no State-finding that
the sleeping occurred during "substantial" portions of trial. It also
overlooked the Court of Criminal Appeals’ express rejection of
the recommended conclusion of law, which simply described
Burdine's "allegation". Ex parte Burdine, No. 379.444-B. at 18-
19; Ex parte Burdine, No. 16,725-06, at 1.
Moreover, the district court did not conduct a Teague
analysis, despite the State's having raised Teague as a bar to
Burdine's sleeping-counsel-claim. See Goeke v. Branch, 514 US.
115, 117, 115 S.Ct. 1275, 131 L.Ed.2d 152 (1995) ("Although a
court need not entertain [a Teague ] defense if the State has not
raised it, a court must apply it if it was raised by the State."
(citations omitted)).
IV.
S6a
*33 Presumed-prejudice should be rejected because of the
withheld-evidence tactic employed by Burdine's counsel, which
our en banc court noted sua sponte and inquired about at
argument. In the alternative, the claim still fails.
Burdine filed his federal habeas application (1995) prior to
enactment of the Anti-Terrorism and Effective Death Penalty Act
of 1996 (AEDPA). Therefore, AEDPA's standards for reviewing
the state court's decision are not applicable. E.g.. Perillo v.
Johnson, 205 F.3d 775, 793 (Sth Cir.2000). As a result, we apply
the pre-AEDPA standards. For applying such standards to
ineffective- assistance claims, questions of deficient performance
and prejudice are legal conclusions reviewed de novo. Moore vy.
Johnson, 194 F.3d 586, 603-04 (Sth Cir.1999). Likewise, whether
Teague precludes Burdine from benefitting from the claimed
prejudice-presumption is reviewed de novo. See United States v.
Shunk, 113 F.3d 31, 34 (Sth Cir.1997) (§ 2255).
On the other hand, for habeas review, "[t]he state court's
subsidiary findings of specific historical facts and state court
credibility determinations are ... entitled to a presumption of
correctness under [pre-AEDPA] § 2254(d)". Moore, 194 F.3d at
604. Therefore, as the State concedes, we are bound by the key
state-finding that Cannon "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".
Generally, we presume effective assistance of counsel:
Burdine has the burden of overcoming that presumption. See
Cronic, 466 U.S. at 658. Only in extremely narrow circumstances
will prejudice be presumed. E.g., Craker v. McCotter, 805 F.2d
538, 542 (Sth Cir.1986). " 'The essence of an ineffective
assistance claim is that counsel's unprofessional errors so upset
S7a
the adversarial balance between defense and prosecution that the
trial was rendered unfair and the verdict rendered suspect.’ "
Goodwin v. Johnson, 132 F.3d 162, 172 (Sth Cir.1998) (quoting
Kimmelman v. Morrison, 477 U.S. 365, 374, 106 S.Ct. 2574. 91
L.Ed.2d 305 (1986)). Restated, "[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just result".
Strickland, 466 U.S. at 686.
A.
*34 Teague 's nonretroactivity principle "prevents a federal
court from granting habeas relief to a state prisoner based on a
rule announced after his conviction and sentence became final”.
Caspari v. Bohlen, 510 U.S. 383, 389, 114 S.Ct. 948. 127
L.Ed.2d 236 (1994) (emphasis in original), unless certain narrow
exceptions (two announced by the Supreme Court and a third
recently created by our court) apply. The majority holds its rule is
not a proscribed "new rule" under Teague. | respectfully disagree.
Habeas corpus is "to afford relief to those whom society has
‘grievously wronged'". Brecht v. Abrahamson, 507 U.S. 619. 637.
113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (defining harmless error
standard applicable in habeas cases (citation omitted)).
Concomitantly, granting a new trial--especially based on a
presumption--has serious consequences.
Retrying defendants whose convictions are set aside ...
imposes significant social costs, including the expenditure of
additional time and resources for all the parties involved, the
erosion of memory and dispersion of witnesses that
accompany the passage of time and make obtaining
convictions on retrial more difficult, and the frustration of
society's interest in the prompt administration of justice.
S8a
Id. (emphasis added; internal quotation marks and citation
omitted). The Teague nonretroactivity doctrine "validates
reasonable, good-faith interpretations of existing precedents made
by state courts, and thus effectuates the States’ interest in the
finality of criminal convictions and fosters comity between
federal and state courts". Gilmore v. Taylor, 508 U.S. 333, 340,
113 S.Ct. 2112, 124 L.Ed.2d 306 (1993) (internal quotation
marks and citation omitted); see also Lockhart v. Fretwell, 506
U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993) (Teague
nonretroactivity rule "was motivated by a respect for the States’
strong interest in the finality of criminal convictions, and the
recognition that a State should not be penalized for relying on the
constitutional standards that prevailed at the time the original
proceedings took place" (internal quotation marks and citation
omitted)).
Teague serves these interests by "validat[ing] reasonable,
good-faith interpretations of existing precedents made by state
courts even though they are shown to be contrary to later
decisions". Butler v. McKellar, 494 U.S. 407, 414, 110 S.Ct.
1212, 108 L.Ed.2d 347 (1990).
In many ways the application of new rules to cases on
collateral review may be more intrusive than the enjoining of
[state] criminal prosecutions, for it continually forces the
States to marshal resources in order to keep in prison
defendants whose trials and appeals cenformed to then-
existing constitutional standards. Furthermore, ... state courts
are understandably frustrated when they faithfully apply
existing constitutional law only to have a federal court
discover, during a habeas proceeding, new constitutional
commands.
Teague, 489 U.S. at 310 (plurality) (emphasis in original;
internal quotation marks, citations, and brackets omitted).
59a
*35 The Teague doctrine recognizes that "{a]pplication of
constitutional rules not in existence at the time a conviction
became final seriously undermines the principle of finality which
is essential to the operation of our criminal justice system.
Without finality, the criminal law is deprived of much of its
deterrent effect". /d. at 309 (plurality); see also id. (" 'No one. not
criminal defendants, not the judicial system, not society as a
whole is benefited by a judgment providing that a man shall
tentatively go to jail today, but tomorrow and every day thereafter
his continued incarceration shall be subject to fresh litigation.’ "
(quoting Mackey v. United States, 401 U.S. 667, 691 (1971)
(Harlan, J.. concurring in judgments in part and dissenting in
part))). [FN20]
"In determining whether a state prisoner is entitled to habeas
relief, a federal court should apply Teague by proceeding in three
steps." Caspari, 510 U.S. at 390.
First, we must determine when [Burdine's] conviction and
sentence became final for Teague purposes.... Second, we
must “survey the legal landscape as it then existed and
determine whether a state court considering the defendant's
claim at the time his conviction became final would have felt
compelled by existing precedent to conclude that the rule he
seeks was required by the Constitution.”... Third, if we
determine that [Burdine] seeks the benefit of a new rule. we
must consider whether "that rule falls within ... the ... narrow
exceptions to the nonretroactivity principle". Fisher v. Texas,
169 F.3d 295, 305 (Sth Cir.1999) (quoting Caspari, 510 U.S.
at 390).
Burdine's conviction became final in 1987, when the Supreme
Court denied certiorari. Therefore, the second step of the Teague
60a
analysis concerns whether, based on the “legal landscape” in
1987, Burdine seeks a "new rule". "[I}n general, a case announces
a ‘new rule’ when it breaks mew ground or imposes a new
obligation on the States or the Federal Government”. Butler, 494
U.S. at 412 (emphasis added). Restated, "a decision announces a
new rule if the result was not dictated by precedent existing at the
time the defendant's conviction became final". /d. (emphasis in
original; internal quotation marks and citations omitted). We must
ask whether, in 1987, Texas courts "would have felt compelled by
existing precedent to conclude that the [presumed- prejudice] rule
{Burdine] seeks was required by the” Sixth Amendment. Fisher,
169 F.3d at 305.
Obviously, the Teague inquiry is more difficult in cases in
which the “decision is reached by an extension of the reasoning
of previous cases". Butler, 494 U.S. at 412-13. "Courts frequently
view their decisions as being ‘controlled’ or ‘governed’ by prior
opinions even when aware of reasonable contrary conclusions
reached by other courts". /d. at 415. But, when the new rule ve/
non determination is “susceptible to debate among reasonable
minds", the rule is "new". /d. [FN21]
*36 At issue in Butler was whether a new rule was established
by Arizona v. Roberson, 486 U.S. 675, 108 S.Ct. 2093, 100
L.Ed.2d 704 (1988) (Fifth Amendment bars police-initiated
interrogation following suspect's request for counsel in context of
separate investigation). The explanation in Butler of why
Roberson announced a new rule is pertinent here:
In Roberson, ... the Court found Edwards [v. Arizona,
concerning waiver vel non of right to counsel during police
interrogation,} controlling but acknowledged a significant
difference of opinion on the part of several lower courts that
had considered the question previously. That the outcome in
Roberson was susceptible to debate among reasonable minds
6la
is evidenced further by the differing positions taken by the
judges of the Courts of Appeals for the Fourth and Seventh
Circuits... It would not have been an illogical or even a
grudging application of Edwards to decide that it did not
extend to the facts of Roberson. We hold. therefore. that
Roberson announced a new rule.
Butler, 494 U.S. at 415 (internal quotation marks and citations
omitted).
Although the majority does not mention it, the Supreme Court
and our court frequently have applied this "debatable among
reasonable jurists" standard in determining whether a rule is
“new". [FN22] See, e.g., Caspari, 510 U.S. at 393 ("a reasonable
jurist reviewing our precedents at the time respondent's
conviction and sentence became final would not have considered
the application of the Double Jeopardy Clause to a noncapital
sentencing proceeding to be dictated by our precedents"):
Graham v. Collins, 506 U.S. 461, 476, 113 S.Ct. 892, 122
L.Ed.2d 260 (1993) ("The result in a given case is not dictated by
precedent if it is susceptible to debate among reasonable minds.
or, put differently, if reasonable jurists may disagree" (internal
quotation marks and citations omitted)); Matthew v. Johnson, 201
F.3d 353, 363 (Sth Cir.) (in Teague analysis, "the reasonable
views of state courts are entitled to consideration along with those
of federal courts" (internal quotation marks and citation omitted)),
cert. denied, 531 U.S. 830, 121 S.Ct. 291, 148 L.Ed.2d 44 (2000);
Fisher, 169 F.3d at 305 ("reasonable jurists, considering the
question in 1996, would not have felt compelled by existing
precedent to rule that religion-based peremptory challenges
violate the Equal Protection Clause"); Vega v. Johnson, 149 F.3d
354, 357 (Sth Cir.1998) ("If reasonable minds could differ on
Whether current law requires relief, we may not grant relief
without creating a ‘new rule’ barred by Teague."), cert. denied
525 U.S. 1119, 119 S.Ct. 899, 142 L.Ed.2d 899 (1999). [FN23]
62a
As quoted earlier, the key component in determining whether
a rule is new is whether a state court considering the claim at the
time petitioner's conviction became final would have felt
compelled by existing precedent to conclude that the rule sought
by petitioner is required by the Constitution. Accordingly, we
must determine whether the rule Burdine seeks is "dictated by ...
precedent [existing at the time his conviction became final in
1987]--whether, that is, the unlawfulness of [Burdine's]
conviction was apparent to all reasonable jurists". Lambrix v.
Singletary, 520 U.S. 518, 527-28, 117 S.Ct. 1517, 137 L.Ed.2d
771 (1997) (emphasis in original). It is not enough, under 7eague,
that the rule is "a reasonable interpretation of prior law". /d. at
538. Instead, the relevant inquiry is "whether no other
interpretation was reasonable". /d. (emphasis in original); see also
Graham, 506 U.S. at 477 (same). "Unless reasonable jurists
hearing |Burdine's] claim at the time his conviction became final
lin 1987] would have felt compelled by existing precedent ito rule
in his favor [on his presumed-prejudice claim], we are barred
trom doing so now." Fisher, 169 F.3d at 305 (internal quotation
marks, brackets, and citation omitted).
*37 Whether Cronic dictates presumed-prejudice when, as in
this case, counsel sleeps during unidentifiable portions of a
capital murder trial, but otherwise provides meaningful assistance
to his Client, is certainly susceptible to debate among reasonable
jurists, as reflected by the majority and dissenting opinions of our
court's panel, 231 F.3d 950, vacated, 234 F.3d 1339 (Sth
Cir.2000), and, most certainly, by the previously referenced
opinions of the state habeas trial court and the Court of Criminal
Appeals.
The state habeas trial court's recommended conclusion was
that Burdine had established presumed-prejudice. Ex Parte
Burdine, No. 379,444-B, at 18-19. In 1995, however, a majority
63a
of the Court of Criminal Appeals rejected that conclusion; it held
Burdine was not entitled to relief "because he has failed to
discharge his burden of proof under Strickland ". Ex Parte
Burdine, No. 16,725-06, at 1, 901 S.W.2d 456. Three justices
dissented, noting that, in Javor, 724 F.2d 831, the Ninth Circuit
had found a Sixth Amendment violation under similar
circumstances; the dissent stated: "The issue presented in this
case has never been addressed by the United States Supreme
Court nor by this court". Ex parte Burdine, 901 S.W.2d at 458. As
stated earlier, the majority opinion by the Court of Criminal
Appeals does not even refer to presumed- prejudice, although
perhaps its citation to Strickland was intended to include not only
the prejudice analysis as part of the two-prong test, but also
Strickland 's discussion of presumed-prejudice. In any event, the
recommended presumed-prejudice conclusion was rejected.
A survey of the legal landscape as it existed when Burdine's
conviction became final in 1987 demonstrates that the rule
fashioned now by the majority is not dictated by such precedent.
Restated, Texas courts, considering Burdine's claim in 1987,
would not have felt compelled to presume prejudice because of
Cannon's sleeping during unidentified portions of trial.
*38 As the majority notes, the Supreme Court held, in 1932,
that a capital defendant has a constitutional right to "the guiding
hand of counsel at every step in the proceedings against him".
Powell vy. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158
(1932). In this regard, the Court held subsequently that showing
prejudice was not necessary when the defendant was denied
counsel at arraignment, a critical stage of the proceedings,
because certain defenses were lost if not then pleaded. Hamilton
v. Alabama, 368 U.S. 52, 53-55, 82 S.Ct. 157, 7 L.Ed.2d 114
(1961). [FN24] Similarly, a defendant was denied assistance of
counsel when the trial judge, pursuant to state statute, denied
64a
defense counsel the opportunity to be heard in summation at a
bench trial, despite the fact there was no way to know whether
argument might have affected the outcome. Herring v. New York,
422 U.S. 853, 864-65, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
And, shortly thereafter, the Court reversed a decision that
defendant's failure to claim prejudice was fatal to his Sixth
Amendment claim, and then concluded that a court order
preventing him from consulting with his counsel during a 17-hour
overnight recess between defendant's direct and _ cross-
examination deprived him of assistance of counsel. Geders v.
United States, 425 U.S. 80, 82, 91, 96 S.Ct. 1330, 47 L.Ed.2d 592
(1976).
As discussed, the quite well-known, and quite often applied,
standards for ineffective-assistance were established in 1984 in
Strickland and Cronic. Under Strickland 's two-prong test, "the
defendant must show that counsel's performance was deficient "--
"counsel made errors so serious [he] was not functioning as the
‘counsel’ guaranteed the defendant by the Sixth Amendment".
Strickland, 466 U.S. at 687 (emphasis added). In addition, he
"must show that the deficient performance prejudiced the
defense"--"counsel's errors were so serious as to deprive the
defendant of a fair trial, a trial whose result is reliable ". Id.
(emphasis added). For the prejudice prong, "[t]he defendant must
show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have
been different ". Id. at 694 (emphasis added). "A reasonable
probability is a probability sufficient to undermine confidence in
the outcome." Jd.
Strickland, which concerned sentencing for a capital murder
case, observed, however: "In certain Sixth Amendment contexts,
prejudice is presumed". /d. at 692. Such contexts were described
as "[a]ctual or constructive denial of the assistance of counsel
65a
altogether " and "various kinds of state interference with
counsel's assistance". /d. (emphasis added). "Prejudice in these
circumstances is so likely that case-by-case inquiry into prejudice
is not worth the cost." Id. (emphasis added). "{S]uch
circumstances involve impairments of the Sixth Amendment right
that are easy to identify... and [in those instances where] the
prosecution is directly responsible, easy for the government to
prevent”. /d. (emphasis added). [FN25] "[A] similar, though more
limited, presumption of prejudice" applies "when counsel is
burdened by an actual conflict of interest". Jd.
*39 Cronic, decided the same day as Strickland, held
presumed- prejudice unwarranted under the circumstances of that
case (for complex mail fraud prosecution, young lawyer with real
estate practice appointed to represent defendant and allowed only
25 days for pretrial preparation). Cronic, 466 U.S. at 666. But, as
it did in Strickland, the Court observed: "There are
circumstances ... so likely to prejudice the accused that the cost of
litigating their effect in a particular case is unjustified". /d. at 658.
Such circumstances include: (1) "the complete denial of counsel",
id. at 659 (emphasis added); (2) where "counsel entirely fails to
subject the prosecution's case to meaningful adversarial testing”,
id. (emphasis added); (3) "when [as also discussed in note ai,
supra,| counsel was either totally absent, or prevented from
assisting the accused during a critical stage of the proceeding",
id. at 659 n. 25 (citing, inter alia, Geders, Herring, and Hamilton
; emphasis added); and (4) "When counsel labors under an actual
conflict of interest", id. at 662 n. 31. But, "{a]part from
circumstances of that magnitude, ... there is generally no basis for
finding a Sixth Amendment violation unless the accused can
show how specific errors of counsel undermined the reliability of
the finding of guilt". /d. at 659 n. 26. [FN26]
66a
The majority holds that its rule is dictated by the third
circumstance described in Cronic : counsel is absent during a
critical stage. It holds there is such absence when counsel "Is
repeatedly unconscious during not insubstantial portions" of the
guilt-innocence phase of a capital murder trial. In support of its
holding its rule is not new, but instead merely an application to an
analogous case of the general Sixth Amendment principles
established in Cronic, the majority, Maj. Op. at ---- - ----
erroneously relies on Penry v. Lynaugh, 492 U.S. 302, 109 S. Ct.
2934, 106 L.Ed.2d 256 (1989), regarding Penry's claim that the
Texas death penalty statute prevented the jury from giving any
mitigating effect to the evidence of his mental retardation and
abuse as a child. That claim, however, did not require the creation
of a new rule, because, prior to Penry's conviction becoming
final, established precedent required the State to allow the jury to
give effect to mitigating evidence in making its sentencing
decision. See Saffle v. Parks, 494 U.S. 484, 491-92, 110 S.Ct.
1257, 108 L.Ed.2d 415 (1990). Nothing in Penry supports the
majority's extension of Cronic 's critical-stage rule to the facts of
Burdine's case--even the facts found improperly by the majority.
Burdine's case is not analogous to the circumstances for
which Cronic found the presumption appropriate. The cases cited
in Cronic as examples of counsel's being either absent or
prevented from assisting the accused during a critical stage
(Geders, Herring, and Hamilton ) did not involve circumstances
even remotely analogous to Burdine's. In fact, in each, the
government was responsible for the denial of counsel. See
Geders, 425 U.S. at 82 (court order); Herring, 422 U.S. at 864-65
(state statute); Hamilton, 368 U.S. at 53 (no counsel appointed for
arraignment). Obviously, the State of Texas was not responsible
for Cannon's sleeping. Indeed, the state habeas trial court credited
the testimony of the trial judge and prosecutor that they did not
observe him doing so.
67a
*40 Of course, as Cronic also noted, "{t}he fact that the
accused can attribute a deficiency in his representation to a source
external to trial counsel[, such as the State,] does not make it any
more or less likely that he received the type of trial envisioned by
the Sixth Amendment, nor does it justify reversal of his
conviction absent an actual effect on the trial process or the
likelihood of such an effect". Cronic, 466 U.S. at 662 n. 31.
[FN27] Nevertheless, that the denial of counsel in Geders,
Herring, and Hamilton was government-instigated serves to
distinguish them from the claimed denial in this case. And,
obviously, because the State was not responsible for Cannon's
sleeping, such conduct was not "easy for [it] to prevent".
Strickland, 466 U.S. at 692.
Moreover, the stage of the proceeding at which counsel was
denied in Geders, Herring, and Hamilton was easily identifiable.
See Geders, 425 U.S. at 82 (overnight recess); Herring, 422 U.S.
at 864-65 (closing argument); Hamilton, 368 U.S. at 53
(arraignment). In contrast, it is impossible to determine when
Cannon slept. Accordingly, Burdine's claim does not "involve
impairments of the Sixth Amendment right that are easy to
identify". Strickland, 466 U.S. at 692.
Although Burdine contends Javor supports his claim's being
encompassed by the critical stage circumstance described in
Cronic, the majority, Maj. Op. at ---- ---- , does not apply Javor 's
rule that presumed-prejudice is appropriate when counsel sleeps
through a substantial portion of trial. Javor, 724 F.2d at 833.
Instead, it has created a different rule: presumed- prejudice is
appropriate when counsel is "repeatedly unconscious through not
insubstantial portions".
When Burdine's conviction became final in 1987, Texas
courts would not have felt compelled to apply Javor, decided in
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1984. Cf. Magouirk v. Phillips, 144 F.3d 348, 361 (Sth Cir.1998)
("state courts are not bound by Fifth Circuit precedent when
making a determination of federal law"). Moreover, neither
Cronic nor the majority opinion in Strickland cited Javor as an
example of the denial of counsel at a critical stage. Instead, Javor
was cited only in a concurring opinion in Strickland. 466 U.S. at
703 n. 2 (Brennan, J., concurring). Obviously, Javor being so
cited makes clear that the Supreme Court was quite well aware of
Javor and the claim that sleeping counsel justifies presumed-
prejudice. Javor 's not being cited in the Cronic and Strickland
majority opinions as an example of presumed- prejudice is strong
medicine indeed. It is, at the very least, an indication the Court
had not decided presumed-prejudice was applicable in such a
situation and amply demonstrates that, for Burdine's claim, the
majority's application of presumed-prejudice is a "new" rule, one
not dictated by Cronic. [FN28]
*41 Moreover, as noted, Javor (presumed-prejudice if slept
through substantial portion) does not dictate the majority's rule
(presumed-prejudice if "repeatedly unconscious through not
insubstantial portions"). There was evidence in Javor that:
defense counsel slept during a substantial portion of trial; counsel
failed to participate when evidence against the defendant was
being presented; counsel stated to counsel for a co-defendant that
he had missed some of the testimony; other counsel often
"nudged" and "kicked" counsel to awaken him; and the trial judge
was concerned about counsel's inattentiveness. Javor, 724 F.2d at
833-34.
For Burdine, the district court applied Javor 's "substantial
portion” rule, modified by the rule announced in Tippins, decided
in 1996: prejudice must be presumed if, while the defendant's
interests were at stake, counsel slept for repeated or prolonged
lapses and was actually unconscious. Burdine, 66 F.Supp.2d at
69a
863-64. As discussed, the majority does not adopt that rule either.
In any event, in 1987, Texas courts obviously would not have felt
compelled to apply the substantiality analysis from Tippins,
which was not decided until 1996, long after the conclusion of
Burdine's trial, direct appeal, and state habeas proceedings.
It is not even clear Tippins applied presumed-prejudice. It
states: "Under these circumstances, where the adversary nature of
the proceeding was subject to repeated suspensions [because of
counsel's unconsciousness] there is little difference between
saying that prejudice will be presumed and saying that prejudice
has been demonstrated". Tippins, 77 F.3d at 687. The Tippins
court concluded: "Tippins suffered prejudice, by presumption or
otherwise, if his counsel was repeatedly unconscious at trial for
periods of time in which defendant's interests were at stake". Jd.
In most cases, in order to apply the Tippins analysis, examination
of the trial record is necessary; otherwise, it would usually be
difficult to determine whether the sleeping occurred while the
defendant's interests were at stake. But, such record- examination
is totally at odds with the rationale for presumed-prejudice (case-
by-case inquiry not worth the cost of litigating prejudice vel non
because the Sixth Amendment violations are so easy to identify
and prejudice is so likely to have occurred). See Strickland. 466
U.S. at 692.
*42 Notwithstanding the majority's view that the Second
Circuit has confirmed the rule and rationale in Tippins, it is not
clear that the Second Circuit views Tippins as establishing a rule
of presumed-prejudice. [FN29] In any event, Tippins is
distinguishable. Unlike in Burdine's case, the facts in Tippins
regarding sleeping were undisputed. Tippins, 77 F.3d at 685. The
trial judge testified that Tippins' counsel "slept every day of the
trial ... during testimony that was damaging and adverse to
[Tippins'] interests". Tippins v. Walker, 889 F.Supp. 91, 92
70a
(S.D.N.Y.1995) (internal quotation marks and citation omitted),
aff'd, 77 F.3d 682 (2d Cir.1996). On one occasion when counsel
was sleeping during testimony detrimental to Tippins, the trial
judge removed the attorneys from the courtroom to admonish
Tippins' counsel for sleeping. Id. The prosecutor also witnessed
the sleeping, as did the court reporter, who testified she heard
Tippins' counsel snoring several times. /d. And, a juror testified
that counsel slept through approximately 65 percent of a critical
prosecution witness’ testimony. Id. see also Tippins, 77 F.3d at
687-89. It was quite clear that Tippins’ counsel slept while
evidence harmful to Tippins' interests was being presented.
Post-Cronic decisions demonstrate prejudice is to be
presumed only in very narrow circumstances, where the
defendant receives no meaningful assistance of counsel. Recently,
‘n Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d
756 (2000). the defendant claimed he had been denied effective
assistance of appellate counsel because counsel requested leave to
withdraw, supported by a brief and pursuant to a new California
procedure which the defendant alleged failed to comply with
Anders y. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d
493 (1967) (establishing procedures for withdrawal of court-
appointed appellate counsel for criminal defendant on direct
appeal and for dismissal of appeal if there are no non-frivolous
issues). The Court reversed the Ninth Circuit's judgment that the
procedure used by counsel failed adequately to comply with the
constitutional principles identified in Anders, but remanded for a
determination of whether the appeal was frivolous or whether it
warranted the filing of a merits-brief. Robbins, 528 U.S. at 283-
85.
The Court instructed that, on remand, the defendant would be
required to satisfy Strickland's two-prong test. Id. at 285. It
explained: "where, as here, the defendant has received appellate
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counsel who has complied with a valid state procedure for
determining whether the defendant's appeal is frivolous, and the
State has not at any time left the defendant without counsel on
appeal, there is no reason to presume that the defendant has been
prejudiced”. /d. at 286. Moreover, Robbins’ claim did "not fall
within any of the three categories of cases, described in
Strickland, in which we presume prejudice rather than require a
defendant to demonstrate it". /d. at 287. Those three categories
were described as: "denial of counsel"; "various kinds of state
interference with counsel's assistance": and "when counsel is
burdened by an actual conflict of interest". /d. (internal quotation
marks and citations omitted). Therefore. the categories described
in Cronic as (1) complete denial of counsel, (2) failure to subject
the case to meaningful adversarial testing, and (3) totally absent
during a critical stage are subsumed within the first category
identified in Robbins : "denial of counsel”.
*43 The Robbins Court held the policies supporting the first
two categories it described were inapplicable, because counsel's
unreasonable choice of a procedure such as Anders or the new
California procedure followed by Robbins’ counsel. in lieu of
filing a merits-brief, did not make prejudice "so likely that case-
by-case inquiry into prejudice is not worth the cost". /d. (internal
quotation marks and citation omitted). "Moreover, such an error
by counsel is neither easy to identify (since it is necessary to
evaluate a defendant's case in order to find the error) nor
attributable to the prosecution." /d. at 287 n. 15 (internal
quotation marks and citation omitted).
Our court consistently has held likewise. For example, May v.
Collins, 948 F.2d 162 (Sth Cir.1991), cert. denied 502 US. 1046,
112 S.Ct. 907, 116 L.Ed.2d 808 (1992), rejected a presumed-
prejudice claim that "the structure of the Texas sentencing statute
so forced [May's] attorney's tactical decision on whether to
72a
present mitigating evidence as to result in a constructive denial"
of counsel. /d. at 167. Our court noted that the Supreme "Court
has found constructive denials of counsel oniy under a few
limited circumstances". /d.
Goodwin, 132 F.3d 162, rejected a presumed-prejudice claim
where appellate counsel failed to provide the appellate court with
a suppression hearing transcript. "Cronic-type prejudice results in
circumstances in which, although counsel is present, counsel's
ineffectiveness is so egregious that the defendant is in effect
denied any meaningful assistance of counsel at all. When the
defendant receives at least some meaningful assistance, he must
“prove prejudice." /d. at 176-77 n. 10 (citation omitted). Because
Goodwin's counsel provided some meaningful assistance on
appeal, "|t}he fatture of Goodwin's appellate counsel to read two
days of the trial record falls far short of establishing that any
deficiency in his performance precluded meaningful appellate
review entirely or in effect constituted no assistance of appellate
counsel at all". /d. (citation omitted).
In Childress v. Johnson, 103 F.3d 1221 (Sth Cir.1997),
prejudice was presumed where counsel was appointed merely to
waive the defendant's right to a jury trial. But, our court
emphasized: "constructive denial of counsel as described in
Cronic affords only a narrow exception to the requirement that
prejudice be proved"; and "we have consistently distinguished
shoddy representation from no defense at all". Jd. at 1229
(emphasis added). Thus, where "the defendant has received some
meaningful assistance, it [is] necessary to prove prejudice”. /d.
*44 Jackson v. Johnson, 150 F.3d 520 (Sth Cir.1998), cert.
denied, 526 U.S. 1041, 119 S.Ct. 1339, 143 L.Ed.2d 503 (1999),
rejected a presumed- prejudice claim where appellate counsel
failed to include challenged videotape evidence as part of the
i
Pe Pea | es
73a
record on appeal; Jackson could "point to no clearly established
Federal law from the Supreme Court that says, in anything like
his situation, prejudice is presumed". /d. at 524. Instead, "the
constructive- denial claim is a very narrow exception to the
Strickland prejudice requirement". /d. Because Jackson's claim
involved "shoddy representation-- one essential error in the midst
of otherwise adequate representation--rather than total absence of
counsel", Jackson had the burden of proving "the error
complained of resulted in Strickland prejudice". Jd. at 525
(footnote omitted).
As a final, and recent, example, in Gochicoa v. Johnson, 238
F.3d 278 (Sth Cir.2000), our court reversed the district court's
holding of presumed- prejudice for the defendant's claim of
constructive denial of counsel based on counsel's failure to object
to inadmissible hearsay and to seek disclosure of an informant's
identity. /d. at 283-84. "[P]rejudice is presumed ... only when the
defendant demonstrates that counsel was not merely incompetent
but inert, distinguishing shoddy representation from no
representation at all. When the defendant complains of errors,
omissions, or strategic blunders, prejudice is not presumed: bad
lawyering, regardless of how bad, does not Support the per se
presumption of prejudice." /d. at 284-85 (internal quotation marks
and citation omitted). "When the defendant receives at least some
meaningful assistance, he must prove prejudice in order to obtain
relief for ineffective assistance of counsel." Id. at 285 (internal
quotation marks and citation omitted). Because counsel had
provided "some meaningful assistance", Cronic 's constructive-
denial test was not applicable. /d. [FN30]
As the above-discussed cases demonstrate, Cronic does not
dictate the majority's rule--far from it. More importantly, and at
the very least, when Burdine's conviction became final in 1987,
Texas courts would not have felt compelled to presume prejudice
74a
where Cannon slept during unidentified portions of trial, but
otherwise provided some--indeed, a great deal of--meaningful
assistance to Burdine.
*45 Again, the rationale for presumed-prejudice in cases
involving the denial of counsel, actual or constructive, is: the
circumstances involving the impairment of the right to counsel
are easy to identify; prejudice is so likely that a case-by-case
inquiry into prejudice vel non is not worth the cost; and, for
instances of government interference, such circumstances are easy
to prevent, because the prosecution is directly responsible. See
Robbins, 528 U.S. at 287 & n. 15; Strickland, 466 U.S. at 692;
Cronic, 466 U.S. at 658. This rationale underscores the fact that,
to presume prejudice in this case entails creating a new rule,
because none of these circumstances are present.
As discussed in great detail infra, the record reflects periods
of inactivity, but not necessarily sleep, by Cannon, both when
evidence harmful to Burdine's interests was being presented and
when uncontested evidence (such as evidence of the robbery,
which Burdine admitted committing) not harmful to his interests
was being presented. Because the presumed-prejudice claim was
not raised until 11 years after trial (as well as because he withheld
evidence), it is impossible to identify accurately, on this record,
whether those periods of inactivity reflect trial strategy or that,
instead, Cannon was asleep.
This uncertainty is demonstrated by the following example.
As part of his ineffective-assistance claim, Burdine asserted that
Cannon's homophobic views created an unconstitutional conflict
of interest, and that his homophobia adversely affected his
performance at trial; Burdine also complained about Cannon's
failure to object to the prosecutor's homophobic arguments and
similar homophobic misconduct at trial. For example, to support
75a
his presumed-prejudice claim, he notes Cannon did not object
when Burdine was asked "whether he ‘voluntarily’ remained in the
‘homosexual lifestyle’ " and whether, while engaging in
homosexual sex, "he played the role of 'man' or 'woman' ". But.
part of Cannon's defense strategy was to portray Burdine as a
victim of the murder victim, Wise, an older man who. in several
ways, had taken great advantage of the much younger Burdine
during their homosexual relationship (deposited Burdine's pay
checks into his (Wise's) account; spent Burdine's money;
attempted to persuade Burdine to prostitute himself). In short.
such non-objection could well have been part of Cannon's trial
Strategy and not because he was asleep. On this record, we do not.
and cannot, know.
But, if Burdine's contention that such questions are extremely
egregious and so objectionable is to be accepted, then it seems
obvious Burdine, as well as the trial judge, would have looked to
Cannon when the questions were asked, expecting an objection. If
Cannon had been asleep, they would have noticed it. And. as he
testified at the state habeas hearing, the trial judge would have
done something about it.
*46 As noted by the majority, it was claimed somewhat
recently in United States v. Russell, 205 F.3d 768 (Sth C ir.2000),
that the taking of any evidence at trial in the absence of counsel is
prejudicial per se under Cronic. Our court stated it did "not so
hold", declining to fashion such a rule. Jd. at 771. (Teague was
not addressed in Russell.) See also Vines v. United States. 28 F.3d
1123, 1128 (11th Cir.1994) (rejecting defendant's contention that
taking of evidence was necessarily critical stage of trial and
refusing presumed-prejudice when no evidence directly
inculpating defendant was presented while counsel temporarily
absent).
76a
As discussed in Russell, although "Cronic does not provide
significant guidance on which parts of trial are considered
‘critical’ ", 205 F.3d at 771, it does provide some guidance for
determining whether counsel's absence is at such a stage:
First, there must be a denial of such significance that it makes
the adversary process itself unreliable.... Second, the Cronic
court makes clear that "on/y when surrounding circumstances
justify a presumption of ineffectiveness can a Sixth
Amendment claim be sufficient without inquiry into counsel's
actual performance at trial."
Id. (quoting Cronic, 466 U.S. at 662; emphasis in original);
see also United States v. Taylor, 933 F.2d 307, 312 (Sth Cir.)
("critical stages ... are those stages of the proceeding at which the
substantial rights of a defendant may be affected"), cert. denied,
502 U.S. 883, 112 S.Ct. 235. 116 L.Ed.2d 191 (1991); United
States ex rel. Thomas v. O'Leary, 856 F.2d 1011, 1014 (7th
Cir.1988) ("A critical stage is one where potential substantial
prejudice to [a] defendant's rights inheres in the particular
confrontation and where counsel's abilities can help avoid that
prejudice.").
In Russell, our court concluded that Russell's counsel's actual
absence from the courtroom (illness) was during a "critical stage”:
the Government presented evidence implicating several of his co-
conspirators, although not directly implicating Russell. Russell,
205 F.3d at 770-72. Under such circumstances, "[t]he adversary
process becomes unreliable when no attorney is present to keep
the taint of conspiracy from spreading to the client". /d. at 772.-
But, unlike in Russell, where the evidence presented during
counsel's absence was easily identifiable, we cannot determine
from the trial or state habeas records what evidence was being
presented, or other activity was taking place, while Cannon slept.
77a
In rejecting the State's contention that Burdine cannot prove
Cannon slept during a critical stage because it is impossible to
determine when the sleeping occurred, the majority states it is not
necessary for the defendant to explain how having counsel would
have altered the outcome. Maj. Op. at ----. (Obviously, this would
be tantamount to requiring proving actual prejudice in order to
receive presumed-prejudice.) As support, it cites Russell, noting
“that our court did not require Russell to demonstrate that the
evidence adduced against his co-defendants during counsel's
absence adversely impacted his defense or that the presence of his
counsel would have improved his chance of acquittal. Maj. Op. at
----. The majority acknowledges that we do not know what
specific evidence was being presented while Cannon slept:
nevertheless, it notes--pursuant to the State-finding--that the
evidence was being presented by the State against Burdine, and
posits this "at the very least inferentially increased the taint of
Burdine's guilt because he was the only defendant". Maj. Op. at --
-- n. 7 (emphasis in original).
*47 But, the defendant in Russell, unlike Burdine, easily
demonstrated that his counsel was actually absent at a critical
Stage of the trial, when evidence was being presented against his
co-conspirators which increased the taint of his guilt of
conspiracy. Thus, there was no need in Russell for our court to
speculate whether the evidence being presented in counsel's
absence was potentially harmful to the defendant's interests. In
short, our court did nof require Russell to prove counsel's
presence would have affected the outcome because it held
prejudice must be presumed.
Burdine had the burden of proving Cannon was absent, by
sleeping, during "critical stages" of trial. Because Burdine cannot
demonstrate when Cannon slept (or, by withholding evidence,
refused to attempt to do so), he has not shown it was at a "critical
78a
stage". The majority does not even discuss the facts of Burdine's
case, much less the crucial point that, because Burdine admitted
robbing Wise, the State's evidence of the robbery was uncontested
by Burdine. Instead, the majority concludes that Burdine has
established presumed- prejudice merely by demonstrating Cannon
slept (characterized as "repeatedly unconscious") during some
unidentified, "not insubstantial" portions of the guilt-innocence
phase.
Obviously, I agree with the majority that a defendant need not
prove actual prejudice in order to establish entitlement to
presumed-prejudice. On the other hand, he must at least prove the
existence of the circumstances warranting that presumption, i.e.,
the absence of counsel at a critical stage. See Triana v. United
States, 205 F.3d 36, 43 (2d Cir.) ("Application of the per se rule
requires proof of the relevant circumstance, not speculation that it
might be true."), cert. denied, 531 U.S. 956, 121 S.Ct. 378, 148
L-Ed.2d 292 (2000). Such proof is lacking in this case.
The majority asserts that, as in Russell, it declines to adopt a
per se rule of presumed-prejudice for "any dozing" by defense
counsel during trial. Maj. Op. at ----. Nevertheless, despite its
disclaimer, it has, in effect, adopted a rule that the entire guilt-
innocence phase of a capital murder trial is a critical stage,
warranting presumed-prejudice whenever counsel is
"unconscious" during unidentified "not insubstantial" portions of
it, irrespective of whether the evidence being presented while
counsel slept was harmful to the defendant's interests, or whether:
counsel could have done anything to improve the defendant's
circumstances had he been alert. Pursuant to the majority's rule,
any sleeping by counsel during the guilt-innocence phase of a
capital murder trial mandates presumed-prejudice. This is flatly
inconsistent with our court's refusal to adopt a similar rule in
79a
Russell, and underscores that the majority's rule is "new" within
the meaning of Teague. [FN31]
*48 As discussed supra, because of Burdine's admission that
he was guilty of robbing the victim and was present when the
murder took place, much of the evidence presented by the State,
such as photographs of the items taken during the robbery, and
evidence that Burdine withdrew money from the victim's bank
accounts at automatic teller machines following the murder, was
not contested by Burdine. The sleeping may have taken place
during the presentation of that evidence. We simply cannot tell
from the record, because Burdine waited nearly 11 years to bring
the claim, after memories had faded, making it impossible to
identify when the sleeping occurred. Of course, this uncertainty is
greatly exacerbated by Burdine's withholding evidence which, as
stated, the majority does not discuss. By holding that prejudice
must be presumed in these circumstances, the majority has
overruled Russe// and established a new rule.
Under these circumstances, and considering Teague 's goals
of finality and comity, an inquiry in this case into actual prejudice
vel non is more than worth the cost in determining that question.
And, of special importance, because neither the prosecutor nor the
trial judge was aware of Cannon's sleeping, it could not have been
easily prevented by the State. Accordingly, Burdine seeks, and
the majority applies, a “new rule" within the meaning of Teague.
Therefore, unless his claim meets one of the narrow exceptions to
the Teague nonretroactivity principle, we are barred from
considering it.
2.
"Teague provides that a new constitutional rule can apply
retroactively on federal collateral review only if the new rule (1)
80a
puts certain kinds of primary, private conduct beyond the power
of the criminal law-making authority to proscribe or (2) is a rule
of procedure that is implicit in the concept of ordered liberty."
Fisher, 169 F.3d at 306 (internal quotation marks and citation
omitted). In addition, our court has recently adopted a third
narrow exception.
a.
*49 Burdine seeks, inter alia, shelter within the second
exception--"a rule of procedure that is implicit in the concept of
ordered liberty". This exception is "reserved for watershed rules
of criminal procedure that implicate the fundamental fairness and
accuracy of the proceeding". /d. Burdine asserts that both
elements of that exception are violated when a capital defendant
is denied assistance of counsel during a substantial portion of
trial.
Under the circumstances of this case, including the claim's not
being presented until nearly 11 years after trial, Burdine's
withholding evidence, and the impossibility of identifying the
portions of trial during which Cannon slept, it is not necessary to
create a new rule of presumed-prejudice in order to promote
fundamental fairness and ensure an accurate determination of
guilt or innocence or punishment. Those goals can be achieved
satisfactorily--and with far greater assurance of accuracy--under
the Strickland actual prejudice analysis. See Tippins, 77 F.3d at
686 ("Ordinarily, episodes of inattention or slumber are perfectly:
amenable to analysis under the Strickland prejudice test."). That
is especially true here, where: Burdine, who sat beside Cannon
throughout trial, has neither stated in an affidavit nor testified that
he observed Cannon sleeping (indeed, he even withheld evidence
on this point); and the witnesses’ testimony at the evidentiary
————<—
8la
hearing, regarding the amount of sleeping and when it occurred,
cannot be corroborated by reviewing the trial transcript.
b.
Burdine also claims an exception to Teague for constitutional
rights susceptible of vindication only on habeas review, asserting
that his presumed- prejudice claim could not have been raised on
direct appeal because he was represented by the same counsel
who slept during his trial (even though Burdine requested that
Cannon represent him on appeal) and that, in any event, the claim
required development of facts outside the trial record. Subsequent
to oral argument before the panel, our court, in Jackson v.
Johnson, 217 F.3d 360, 364 (Sth Cir.2000), adopted a somewhat
similar, quite narrow, third Teague exception.
The Texas intermediate appellate court affirmed Jackson's
conviction for aggravated assault. Jackson neither filed a timely
motion for rehearing with that court nor sought discretionary
review by the Texas Court of Criminal Appeals. /d. at 363. On
habeas review, Jackson claimed his attorney rendered ineffective
assistance by failing to timely file a motion for rehearing with the
intermediate appellate court. /d. at 361, 363.
Our court concluded that holding an "opportunity to file a
motion for rehearing should be considered the last step in
[Jackson's] first appeal of right ... would surely create a new rule"
under Teague. Jd. at 363-64. But, it held Jackson's claim satisfied
"a third narrow exception to Teague, heretofore unrecognized by
the courts". Jd. at 364. "When an alleged constitutional right is
susceptible of vindication only on habeas review. application of
Teague to bar full consideration of the claim would effectively
foreclose any opportunity for the right ever to be recognized". /d.
[FN32]
82a
Arguably, the right asserted by Jackson was one that could
never be raised on direct appeal. /d. at 364. In any event, Jackson
must, at the very least, be limited to its facts, so that it does not
swallow the rule announced in Teague. The holding in Jackson
has obvious, wide-ranging implications concerning the limits
mandated by Teague for habeas review, including whether the
new exception itself is Teague-barred. See note 32, supra. The
Jackson exception has not been applied since Jackson was
decided in July 2000, although it was cited in Clark vy. Johnson,
927 F.3d 273, 283 n. 4 (Sth Cir.2000), cert. denied, --- U.S. ----,
121 S.Ct. 1129, 148 L.Ed.2d 995 (2001). Cf Soffar v. Johnson,
937 F.3d 411, 450, 452 (Sth Cir.2000) (citing Jackson, but
referring to "either of the two exceptions to nonretroactive
applicability"), vacated, 253 F.3d 227 (5th Cir.2001).
*50 Moreover, to accept Burdine's contention that the Jackson
exception applies because he could not raise his claim on direct
appeal (because Cannon was also his appellate counsel) could
lead to great procedural abuse. A defendant will know his lawyer
was asleep during trial, but may hope nevertheless to receive a
favorable verdict, and therefore does not want a new trial.
Accordingly, he decides to take no action at trial about the
sleeping. If the verdict is unfavorable, the defendant may remain
silent about the sleeping and, as in this case, have that lawyer
represent him on appeal (who better to do so?), the defendant still
hoping to prevail and, therefore, post- trial, not bringing up the
sleeping for fear it might result in an unwanted new trial. But, if
he loses on appeal, the defendant on habeas can finally raise-- and
under the majority's new rule perhaps receive a new trial on--the
matter about which he was aware--and indeed permitted--when it
occurred years before at trial-- his lawyer's sleeping, about which
he then said not a word! Obviously, this totally undermines the
goal of finality.
aisha tlle aie alata
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83a
Some might view this as an extreme, perhaps absurd,
scenario. Perhaps so. More likely not. See Tippins, 77 F.3d at 688
(noting "[I]Jawyers may sometimes affect a drowsy or bored look
to downplay an adversary's presentation of evidence" and "a per
se rule would ‘give ... unscrupulous attorneys a delayed- trigger
weapon to be sprung at some later strategic phase of the
proceeding if events developed very badly for a defendant’ "
(quoting People v. Winkler, 71 N.Y.2d 592, 598, 528 N.Y.S.2d
360, 363, 523 N.E.2d 485, 488 (1988))): Prada-Cordero v.
United States, 95 F.Supp.2d 76, 81-82 (D.P.R.2000) ("court
should be cognizant that attorneys may use the appearance of
sleep as a strategic tool to downplay the importance of an
adversary's presentation"; "[m]Joreover, a rule that required a
finding of prejudice whenever an attorney slept during a trial
would provide unscrupulous practitioners with a safety valve to
annul trials that they feel they are at risk of losing").
This is what will be permitted by presumed-prejudice based
on this record. Courts already have concerns about some of the
tactics utilized by criminal defendants and their counsel.
especially in capital cases. Why would this court add to the
avenues for abuse of court processes unless there is a clear-cut,
compelling, constitutionally-required reason to do so? On this
record, that reason is not before us.
*51 Burdine requested that Cannon be appointed to represent
him on appeal. On 26 March 1984, approximately two months
after he was sentenced, he wrote to the trial judge asking,
unsuccessfully, that Cannon be replaced; nevertheless, he then
stated: "My family and I still feel Mr. Cannon done [sic ] the best
he could during the trial". This was consistent with his earlier
praise to Cannon. In a letter dated 30 January 1984, the day the
jury rendered its verdict in the penalty phase, Burdine wrote to
Cannon: "with what little defense we had to work with, I don't
84a
feel in my heart that you could have done a better job defending
me". A week later, he again wrote to Cannon: "again let me
emphasize my satisfaction in your representation of me during the
trial... [W]ith what little we had to work from, | expected a
sentence of this nature, although a life sent[ence] would have
been more relaxing":
On this record, especially in the light of the recent admission,
Burdine's request that Cannon represent him on appeal may well
constitute a forfei
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