Burdine v. Johnson

BENAVIDES, Circuit Judge.

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 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 Teague'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. . . .

[. . .]

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 and sentence on direct appeal. . . . 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 slept as the State questioned witnesses and presented evidence supporting its case against Burdine.

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 sleeping during the trial. 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.

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, . . . was not required. 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, . . .” . . .

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. . . . Consequently, the district court determined that prejudice should be presumed in accordance with the Supreme Court's analysis in Strickland and United States v. Cronic, . . . The State now appeals from this determination.

II.

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, . . . 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.

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, . . . Moreover, both the Supreme Court and this Court have recognized that the absence of counsel at critical stages of a defendant's trial undermines the fairness of the proceeding and therefore requires a presumption that the defendant was prejudiced by such deficiency. . . . 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.

[. . .]

. . . 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. . . . 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. . . Cronic, [held]. . .(“[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.” . . . In Cronic, however, the Court recognized that some egregious circumstances “are so likely to prejudice the accused that the cost of litigating their effect in a particular trial is unjustified.” . . . 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. . . . [FOOTNOTE 4] 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.

=====FOOTNOTE 4=====

In addition to the absence of counsel during critical phases of trial, Cronic suggested three other circumstances in which a presumption of prejudice would be required to ensure the fairness of a proceeding: (1) “if counsel entirely fails to subject the prosecution's case to meaningful adversarial testing;” (2) “when although counsel is available during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial;” and (3) “when counsel labors under an actual conflict of interest.” . . . Cronic.

=====End Footnote=====

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. . . . 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.

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.” . . . 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.” 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:

“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.”
. . .

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, . . . supports this interpretation and 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. . . . 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. . . . 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. . . .

[. . .]

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. . . . 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. . . . We did not require Russell to 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. 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.

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?

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. [FOOTNOTE 8] Yet, once we have accepted as presumptively 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. . . .

=====FOOTNOTE 8=====

We note that simply because counsel orally responded when addressed during trial does not necessarily indicate that he had been awake and attentive immediately prior to the exchange on the record. At the 1995 state habeas evidentiary hearing, two witnesses testified that, on different occasions during trial, counsel was awakened when the trial court or the prosecutor addressed him. Also, on occasion, Cannon's response was somewhat delayed because he had been asleep immediately prior to being addressed.

=====End Footnote=====

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.” . . . 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 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.

[W]e 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.

III.

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.

The concurring and dissenting opinions are omitted.