Burdine v. Johnson
262 F.3d 336 (2001)
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Rule of Law:
A defendant's Sixth Amendment right to counsel is violated when defense counsel is repeatedly unconscious for not insubstantial portions of the defendant's capital murder trial. Under such circumstances, prejudice is presumed, and the defendant is entitled to a new trial.
Facts:
- In April 1983, Calvin Jerold Burdine and Douglas McCreight robbed W.T. 'Dub' Wise in Wise's trailer.
- During the robbery, Wise was bound, gagged, and beaten.
- After an unsuccessful attempt to smother Wise, McCreight stabbed Wise in the back.
- Burdine then took the knife from McCreight and also stabbed Wise in the back, resulting in Wise's death.
- Burdine was tried for capital murder in a Texas state court in January 1984.
- During the guilt-innocence phase of Burdine's trial, his court-appointed attorney, Joe F. Cannon, repeatedly dozed and fell asleep while the prosecution was questioning witnesses and presenting evidence.
- Multiple jurors and the court clerk observed Cannon sleeping on numerous occasions, with at least one instance lasting for approximately 10 minutes.
Procedural Posture:
- In 1984, a Texas state jury convicted Calvin Jerold Burdine of capital murder and he was sentenced to death.
- The Texas Court of Criminal Appeals, the state's highest criminal court, affirmed the conviction and sentence on direct appeal.
- Burdine's first state application for a writ of habeas corpus was denied.
- Burdine filed a second state habeas application, alleging for the first time that his trial counsel, Joe Cannon, had slept during the trial.
- A state habeas court (a court of first instance for this type of proceeding) conducted an evidentiary hearing, found as a matter of fact that Cannon had repeatedly slept during the trial, and recommended granting relief.
- The Texas Court of Criminal Appeals adopted the lower court's factual findings but denied habeas relief, ruling that Burdine had failed to prove actual prejudice under Strickland v. Washington.
- Burdine then filed a petition for a writ of habeas corpus in the U.S. District Court for the Southern District of Texas.
- The federal district court granted the writ, holding that prejudice should be presumed because sleeping counsel amounted to a constructive denial of counsel.
- The State of Texas appealed the district court's decision to the U.S. Court of Appeals for the Fifth Circuit.
- A divided three-judge panel of the Fifth Circuit reversed the district court's grant of habeas relief.
- The U.S. Court of Appeals for the Fifth Circuit granted a rehearing en banc, vacating the panel's opinion and agreeing to have a larger group of its judges decide the case.
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Issue:
Does a defense attorney repeatedly sleeping through not insubstantial portions of a defendant's capital murder trial constitute a constructive denial of counsel under the Sixth Amendment, thereby requiring a presumption of prejudice?
Opinions:
Majority - Benavides, J.
Yes. A defendant's Sixth Amendment right to counsel is violated when defense counsel is repeatedly unconscious through not insubstantial portions of a capital murder trial, which requires a presumption of prejudice. The right to counsel at a critical stage of trial is a long-established principle, and the guilt-innocence phase where evidence is presented is undeniably a critical stage. An unconscious attorney is equivalent to a physically absent attorney, as they are incapable of exercising judgment, analyzing testimony, or making objections. This situation constitutes a constructive denial of counsel under United States v. Cronic, which compels a presumption of prejudice without requiring the defendant to show a specific adverse outcome. This application of Cronic is not a 'new rule' barred by Teague v. Lane, but rather the application of a well-established principle to a new, egregious set of facts. This scenario is distinct from cases involving intoxicated counsel, as an unconscious lawyer performs no function at all, whereas an impaired lawyer still exercises some, albeit flawed, judgment.
Concurring - Higginbotham, J.
Yes. This is a clear denial of the constitutional right to counsel. The Teague analysis is the most difficult part, but the rule being applied is not new; it dates back to Hamilton v. Alabama (1961), which established that the absence of counsel at a critical stage of the proceedings requires reversal. This case is merely an application of that old rule to a new factual situation. The presentation of evidence against a defendant is undeniably a critical stage where rights can be lost. Furthermore, a sleeping lawyer is more harmful than an absent one because it sends a message to the jury that the defense is merely 'going through the motions,' undermining the entire adversarial process.
Dissenting - Barksdale, J.
No. The majority's holding creates a 'new rule' of presumed prejudice that is barred by Teague v. Lane. The state court's factual findings were not specific enough to conclude that counsel was 'unconscious' for 'not insubstantial portions' of the trial, and it is impossible to know what was occurring during the moments counsel slept. The purpose of the Sixth Amendment is to ensure a reliable result, and given Burdine's confession and admission to being present at the murder, the trial's result was reliable. Burdine also waited 11 years to raise this claim and withheld evidence that he had nudged his lawyer awake, which undermines his credibility. The defendant should be required to demonstrate actual prejudice under the standard two-prong test of Strickland v. Washington.
Dissenting - Jolly, J.
No. Habeas relief should be denied on this claim because Burdine is plainly guilty, he confessed, he complimented his counsel's performance post-trial, and he waited eleven years to raise the issue. The record shows counsel provided competent representation otherwise, and there is no evidence of actual prejudice. The 'sleeping lawyer' claim appears to be a diverting tactic to create the impression of a miscarriage of justice where none exists. The case should be remanded for consideration of Burdine's other claims.
Analysis:
This en banc decision firmly establishes within the Fifth Circuit that repeated sleeping by counsel during a critical phase of trial falls into the narrow category of Sixth Amendment violations where prejudice is presumed under United States v. Cronic. It distinguishes this form of attorney non-performance from other types of ineffectiveness, like intoxication or strategic error, which require a showing of actual prejudice under Strickland v. Washington. The court's extensive Teague analysis reinforces the principle that applying a well-settled legal rule to a novel and egregious fact pattern does not create a 'new rule' barred on habeas review. The ruling solidifies the concept of 'constructive absence,' where counsel's physical presence is meaningless due to incapacitation, thus denying the defendant their fundamental right to representation.
