PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ERIC DOMAIN GLOVER,
Petitioner-Appellee,
v.
GERALDINE MIRO, Warden of
Allendale Correctional Institution; No. 00-7663
CHARLES MOLONY CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellants.
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Matthew J. Perry, Jr., Senior District Judge.
(CA-97-1020-4-10-BE)
Argued: May 10, 2001
Decided: August 15, 2001
Before WILKINSON, Chief Judge, and WIDENER and
MICHAEL, Circuit Judges.
Reversed and remanded by published opinion. Chief Judge Wilkinson
wrote the opinion, in which Judge Widener joined. Judge Michael
wrote a dissenting opinion.
COUNSEL
ARGUED: Tracey Colton Green, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL, Columbia, South Caro-
2 GLOVER v. MIRO
lina, for Appellants. Thadeous Herbert Westbrook, III, NELSON,
MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South
Carolina, for Appellee. ON BRIEF: Charles M. Condon, Attorney
General, John W. McIntosh, Chief Deputy Attorney General, Donald
J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE
ATTORNEY GENERAL, Columbia, South Carolina, for Appellants.
William C. Wood, Jr., NELSON, MULLINS, RILEY & SCARBOR-
OUGH, L.L.P., Columbia, South Carolina, for Appellee.
OPINION
WILKINSON, Chief Judge:
This case addresses whether defendant Eric Glover received consti-
tutionally ineffective assistance of counsel. The district court found
that Glover had not proven actual prejudice under Strickland v. Wash-
ington, 466 U.S. 668 (1984). It nevertheless granted a writ of habeas
corpus to Glover under the per-se prejudice reasoning of United
States v. Cronic, 466 U.S. 648 (1984). Because Strickland v. Wash-
ington’s actual prejudice analysis applies to this case, and because
Glover cannot prove actual prejudice under the Strickland test, we
reverse the judgment of the district court and remand the case for fur-
ther proceedings consistent with this opinion.
I.
On June 19, 1991, a South Carolina jury found Eric Glover guilty
of numerous counts resulting from the January 22, 1991 kidnapping
and robbery of Wayne Cooper. Based on Cooper’s description of his
assailant as well as other leads, police arrested Glover in Florida and
returned him to South Carolina. A grand jury indicted him on five
counts stemming from the January 22 incident — grand larceny, kid-
napping, armed robbery, assault and battery with the intent to kill, and
possession of a firearm during the commission of a violent crime.
Gordon Jenkinson, the public defender, originally represented
Glover. Jenkinson met briefly with Glover at the March 1, 1991 pre-
liminary hearing. Glover proclaimed his innocence, and later wrote
GLOVER v. MIRO 3
Jenkinson a letter with a list of potential alibi witnesses who would
testify that Glover was in Florida on the date of the crime. Following
this meeting, however, Jenkinson resigned as public defender and his
cases were reassigned.
The court ultimately assigned Glover’s case to Jerome Askins.
Askins received Glover’s file on June 17, 1991. Glover’s trial was
scheduled for the two week term of court beginning June 17. In addi-
tion to Glover’s case, Askins was also responsible for "fifty or sixty"
other assigned criminal cases during the term.
Askins first met with Glover on June 17. During this first meeting,
Glover denied having committed the crimes. He again claimed he was
in Florida during the robbery. Glover provided Askins with the names
of approximately ten individuals whom he claimed would establish
his alibi. Askins contacted some of these people, but determined that
they would not provide any useful testimony. Askins said that he did
not contact the other witnesses identified by Glover. Askins also
reviewed Jenkinson’s notes and talked to the investigating officer.
Glover’s trial was held on June 19, 1991. After the jury was
selected, but before it was sworn and outside its presence, Askins
moved for a continuance. He advised the court that he had been
unable to identify any witness who could establish an alibi defense on
behalf of Glover. The trial court denied the motion, stating that it
could not subpoena witnesses from Florida and that it had no assur-
ance that any witnesses would attend the trial if it were rescheduled.
In reality, South Carolina law does allow criminal defendants to sub-
poena out-of-state witnesses.
During the trial, the State presented five witnesses. The first wit-
ness, Preston Wilson, testified that he owned a trailer which he rented
to a tenant. On January 20, 1991, he went to the trailer where he con-
versed with an acquaintance of the tenant, Eric Glover. On cross-
examination by Askins, Wilson admitted he had no personal knowl-
edge about whether Glover committed any crime.
The next, most important, witness was the victim, Wayne Cooper.
Cooper identified Glover as the ringleader in his kidnapping and rob-
bery. According to Cooper, around 7:00 P.M. on January 22, he was
4 GLOVER v. MIRO
driving his mother’s 1980 white Thunderbird. Cooper stopped in a
grocery store where he struck up a conversation with a stranger.
While on the stand, Cooper identified Glover as the person with
whom he engaged in conversation.
According to Cooper’s testimony, Glover and Cooper then chatted
about a variety of other matters, like the Super Bowl. Glover told
Cooper that he was from Florida, and that he had just arrived in South
Carolina. Glover and Cooper continued their conversation over
drinks. While paying for the alcohol, Cooper opened his wallet. Coo-
per was carrying a little over $500. Cooper testified that Glover had
an opportunity to observe the cash in Cooper’s wallet because Glover
was standing beside Cooper during the purchase. Cooper and Glover
then decided to visit some female friends of Glover’s. They drove to
the women’s house in Cooper’s Thunderbird. Glover introduced Coo-
per to the women as his friend. After about twenty minutes at the
house, Cooper wanted to leave. Cooper agreed to drop Glover off at
the grocery store where they met.
Upon arriving, Cooper testified that Glover pulled a gun and told
Cooper that this was a "stickup." Glover forced Cooper into the back-
seat and repeatedly struck him in the face with the gun. At that point,
two other people joined Glover. They drove off with Cooper and
Glover still in the backseat. During the drive, Glover grabbed Coo-
per’s wallet. Glover continued to beat Cooper, thus preventing Coo-
per from seeing where he was being taken. Glover and his
accomplices finally arrived at a dirt road. They pulled the car to the
side of the road and checked to see if Cooper was still alive. After
assuring themselves that he was indeed alive, they stuffed Cooper in
the trunk and continued to drive.
About five minutes later, the car stopped outside of a trailer.
Glover and the two others moved Cooper from the trunk to the trailer.
As Glover and his accomplices searched the Thunderbird, Cooper
escaped through the back door. Cooper ran to a nearby trailer home,
and was eventually taken to a hospital.
Askins vigorously cross-examined Cooper, questioning him on the
time of the crime, the light outside when he observed Glover, the ease
with which Glover could have killed Cooper, what Cooper was doing
GLOVER v. MIRO 5
in the area, why Cooper could not identify the other two offenders
even though he saw them, and other inconsistencies in his testimony.
The State then called Betty Lou Coker, the woman who lived in the
other trailer home to which Cooper fled after he escaped. Coker testi-
fied that Cooper arrived at her mobile home around 8:30 P.M.
According to Coker, Cooper said that he had just been beaten up, that
his assailants had tried to kill him, and that they had taken his money.
During cross-examination by Askins, Coker admitted that she had
never seen Glover. Cooper’s father also testified for the State. He
confirmed that Cooper was driving the 1980 white Thunderbird on
January 22. Askins cross-examined Cooper’s father on a variety of
matters, including why Cooper was in town that night and whether the
father had any personal knowledge about the crime itself.
The State finally called Officer Debra Collins. Collins testified that
she first saw Cooper in the hospital the night he was assaulted.
According to Collins, Cooper told her that "this guy pulled a gun on
him and made him get in the car against his will." Cooper could not
give the name of his assailant, but did provide a description of him.
He said that his attacker was between 5’5" and 5’6", weighed between
140 and 150 pounds, had a light complexion, and walked slightly
bowlegged. Cooper did not know the location of the trailer, except
that it was down a dirt road.
Collins then told the jury that soon after conversing with Cooper,
she received a call from another officer who had found a white Thun-
derbird at a trailer off a dirt road. Officer Collins went to the location
and determined that the car was registered to Cooper’s mother. Col-
lins also determined that Preston Wilson owned the trailer. Wilson
told Collins that nobody was supposed to be in the trailer because the
man renting it from him had already left town. Collins then entered
the trailer, where she found a note written to "Dear Grandmother" and
signed "Eric Glover." Askins cross-examined Collins on a variety of
issues.
After the State rested, Askins asked the judge for a directed verdict.
Although the court denied the motion, it granted Askins’ motion to
reduce the charge of grand larceny to use of a vehicle without the
owner’s consent. Askins also consulted with his client and deter-
6 GLOVER v. MIRO
mined, after a lengthy discussion, that Glover did not want to testify.
The defense did not call any witnesses. During his closing argument,
Askins pointed out the inconsistencies in Cooper’s testimony. He also
noted that Cooper might be out to frame Glover. Askins argued that
the only person who could say that Glover actually did anything ille-
gal was Cooper himself. Askins maintained that Cooper might have
been intoxicated or otherwise impaired that night. He also asked why
Cooper could not remember Glover’s name the night of the crime.
According to Askins, little things did not add up, and if the little
things were wrong, the "big things" could be wrong as well. Twice
before the verdict, the State offered Glover a plea. After consulting
with Askins, Glover decided to reject the plea offer.
The jury found Glover guilty on all charges, although it found that
Glover committed the lesser included offense of assault and battery
of a high and aggravated nature as opposed to the more serious charge
of assault and battery with intent to kill. After the verdict, Askins
renewed his motion for a directed verdict and appealed to the judge
for leniency. Askins noted that Glover was only 18 at the time of the
crime, that he had no prior criminal history, that he maintained his
innocence throughout the trial, and that he had even rejected a plea
agreement because he was not going to plead guilty to anything he did
not do. The judge sentenced Glover to life in prison on the kidnapping
charge, ten years consecutive on the armed robbery charge, and lesser
concurrent sentences on the other charges.
After the South Carolina Supreme Court affirmed his conviction,
Glover with a new attorney filed a motion for post-conviction relief
in state court. Glover contended that his trial counsel was ineffective
for failing to contact his alibi witnesses. At the hearing, Glover stated
that he was in Florida at the time of the crime. Glover told the court
that he had consistently maintained that he had been in Florida on
January 22, and that he asked his previous attorney, Jenkinson, to
contact his alibi witnesses. Glover stated that Willie Palmer could tes-
tify that he was in Florida on the night of January 22. Glover also
identified at least eight other witnesses who could place him in Flor-
ida during the day of January 22. He testified that he gave all these
names to his attorneys.
The only alibi witnesses who appeared in court, however, were
Sandra Jordan and Sylvester Jordan. Sandra Jordan, Glover’s aunt,
GLOVER v. MIRO 7
testified that she saw Glover in Florida at approximately 8:00 A.M.
on January 22. Ms. Jordan named three other people who allegedly
saw Glover during the day of the 22nd, none of whom were present
at the hearing. Glover also called Sylvester Jordan, Glover’s grandfa-
ther. Mr. Jordan was asked on direct examination if Glover was in
Florida when the crime took place. Mr. Jordan responded by stating,
"He was in Florida when this took place as they say. I don’t know.
And I don’t think he did what they say he did." When asked by Glov-
er’s lawyer for more information, Mr. Jordan repeatedly replied, "I
don’t know nothing."
The state court granted Glover’s motion for a new trial on ineffec-
tive assistance grounds. A divided South Carolina Supreme Court
reversed, holding that Glover failed to establish a valid alibi defense
at his post-conviction hearing and thus failed to show prejudice under
Strickland v. Washington. See Glover v. South Carolina, 458 S.E.2d
538 (S.C. 1995).
Glover then filed a petition for a writ of habeas corpus in federal
court. The magistrate judge granted summary judgment for the State
on three of Glover’s habeas claims, but permitted Glover to amend his
Petition to add a fourth ground for relief regarding sentencing. State
law at the time of sentencing set the maximum penalty for kidnapping
at thirty years, not life. The state conceded error, and agreed with the
limited grant of relief. On October 19, 2000, the district court granted
the writ on Glover’s second claim — ineffective assistance of coun-
sel. The district court noted but did not address the petition’s other
three grounds for relief. South Carolina appeals.
II.
In Strickland v. Washington, 466 U.S. at 668, the Supreme Court
set forth a two-part test for deciding ineffective assistance of counsel
claims. First, the defendant "must show that counsel’s performance
was deficient." Strickland, 466 U.S. at 687. To prove deficiency, a
defendant "must show that counsel’s representation fell below an
objective standard of reasonableness." Id. at 688. Second, the defen-
dant must show that the deficient performance resulted in actual prej-
udice to the defendant. A showing of prejudice requires the defendant
8 GLOVER v. MIRO
to prove that "counsel’s errors were so serious as to deprive the defen-
dant of a fair trial, a trial whose result is reliable." Id. at 687.
Strickland and its companion case United States v. Cronic, 466
U.S. at 648, gave more specific instructions on finding prejudice. The
Court stated that in certain limited contexts, "prejudice is presumed."
Strickland, 466 U.S. at 692. In Cronic, the Court identified three dis-
tinct situations in which a presumption of prejudice is appropriate.
First, prejudice is presumed when the defendant is completely denied
counsel "at a critical stage of his trial." Cronic, 466 U.S. at 659. Sec-
ond, per-se prejudice occurs if there has been a constructive denial of
counsel. This happens when a lawyer "entirely fails to subject the
prosecution’s case to meaningful adversarial testing," thus making
"the adversary process itself presumptively unreliable." Id.
Third, the Court identified certain instances "when although coun-
sel is available to assist the accused during trial, the likelihood that
any lawyer, even a fully competent one, could provide effective assis-
tance is so small that a presumption of prejudice is appropriate with-
out inquiry into the actual conduct of the trial." Id. (citing Powell v.
Alabama, 287 U.S. 45 (1932)). A finding of per-se prejudice under
any of these three prongs is "an extremely high showing for a crimi-
nal defendant to make." Brown v. French, 147 F.3d 307, 313 (4th Cir.
1998).
Absent these narrow circumstances of presumed prejudice under
Cronic, defendants must show actual prejudice under Strickland. See
Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 and n.41. Actual
prejudice requires the defendant to "show that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the outcome."
Strickland, 466 U.S. at 694.
Federal courts entertaining collateral attacks on state convictions
have only limited powers of judicial review. See Williams v. Taylor,
529 U.S. 362 (2000); Bell v. Jarvis, 236 F.3d 149, 157 (4th Cir. 2000)
(en banc). Under 28 U.S.C. § 2254(d)(1), this court may not grant a
writ of habeas corpus when a State court resolved the merits of a
claim unless the adjudication of the claim "resulted in a decision that
GLOVER v. MIRO 9
was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States." 28 U.S.C. § 2254(d)(1) (Supp. IV 1998).
In this case, Glover argues that the South Carolina Supreme
Court’s decision was contrary to clearly established Federal law
because it applied the actual prejudice standard of Strickland instead
of the per-se prejudice analysis of Cronic and Powell v. Alabama, 287
U.S. at 45. In the alternative, Glover maintains that the South Caro-
lina Supreme Court’s decision was an unreasonable application of
clearly established Federal law because absent counsel’s errors, there
is a reasonable probability that the jury would not have returned a ver-
dict of guilty. We address each argument in turn.
III.
A.
Preliminarily, we may assume that Glover has satisfied the first
prong of the Strickland analysis by showing "that counsel’s perfor-
mance was deficient." Strickland, 466 U.S. at 687. Cf. Glover v. South
Carolina, 458 S.E.2d at 539-40 (assuming that counsel’s representa-
tion fell below an objective standard of reasonableness). In this case,
Askins’ performance was not objectively reasonable. He failed to
contact certain witnesses even though Glover provided him with
names of potential alibi witnesses. He did not realize that a South
Carolina statute allowed criminal defendants to compel the attendance
of out-of-state witnesses necessary for the defense. Finally, Askins
did not even realize that the sentence for kidnapping in South Caro-
lina had been amended from a maximum sentence of life in prison to
a maximum sentence of thirty years. Given these errors, combined
with the fact that the State does not contest that Askins’s performance
was deficient, we may turn to the issue of prejudice.
B.
Glover contends that the South Carolina Supreme Court misapplied
clearly established Federal law by employing an actual prejudice test
instead of a per-se prejudice one. We disagree.
10 GLOVER v. MIRO
1.
The facts do not come close to fitting within the first of Cronic’s
three criteria for per-se prejudice. Glover was not completely denied
counsel at a critical stage of the proceedings. At all relevant times, he
was represented by counsel. Jenkinson represented Glover at the pre-
liminary hearing. Askins represented Glover from two days before
trial through at least the post-trial motions and sentencing. A finding
of per-se prejudice for complete denial of counsel requires at a mini-
mum that no lawyer be present at a critical stage of the proceedings.
See Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (citing Cronic,
466 U.S. at 659). Here, Askins’ presence at counsel’s table mandates
a finding that Glover was not actually denied the assistance of coun-
sel.
2.
Second, Glover was not constructively denied the right to counsel.
Askins did not "entirely fail[ ] to subject the prosecution’s case to
meaningful adversarial testing" in such a way as to make "the adver-
sary process itself unreliable." Cronic, 466 U.S. at 659. Askins acted
as Glover’s advocate at every step. He contacted some potential wit-
nesses. He asked for a continuance. He vigorously cross-examined
witnesses. He questioned motives. He highlighted testimonial incon-
sistencies. He advised his client on possible plea deals. He pointed out
the flaws of the State’s case to the jury. He made a vigorous closing
statement. He asked the judge for a directed verdict both after the
State’s case and after the jury verdict.
Furthermore, Askins was able to convince the judge to reduce one
charge against Glover from grand larceny to possession of a vehicle
without the owner’s consent. And he was able to convince the jury to
find a verdict of assault and battery of a high and aggravated nature
instead of assault and battery with intent to kill. Given these facts, we
cannot say that Glover was constructively denied the right to counsel.
This case is not one where the lawyer literally sleeps through the
State’s case or otherwise might as well be absent from the proceed-
ings. Askins tested the State’s case at every juncture. He was an
active advocate for Glover. Askins fulfilled his role as defense attor-
GLOVER v. MIRO 11
ney by subjecting the State’s case against Glover to "the crucible of
meaningful adversarial testing." Id. at 656.
It is true, as we have noted and as the State has conceded, that
Askins failed Strickland’s test of objectively reasonable performance.
But not every case of deficient performance under Strickland repre-
sents a constructive denial of the right to counsel. In fact, it will be
the rare claim of ineffective assistance that is tantamount to a con-
structive denial of counsel. Strickland remains the norm for ineffec-
tive assistance claims, and the Supreme Court has made clear that it
will not countenance a per-se prejudice exception which will swallow
the actual prejudice Strickland rule. See, e.g., Roe, 528 U.S. at 483;
Perry v. Leeke, 832 F.2d 837, 842-43 (4th Cir. 1987) (en banc).
If we were to broaden the per-se prejudice exception to Strickland,
we would only add an extra layer of litigiousness to ineffective assis-
tance law. To designate certain categories of cases as Cronic "con-
structive denial" cases and others as Strickland "deficient
performance" cases would promote a new threshold area of debate
and complicate the handling of this most common area of contention
on collateral review. For that reason perhaps, the Supreme Court
refused to apply a rule of per-se prejudice in Cronic itself. Ineffective
assistance is not the same thing as an absence of assistance. Because
Askins served as an advocate for Glover and tested the State’s case
through the adversarial system, Glover cannot show that he was con-
structively denied his right to counsel.
3.
The third reason for finding per-se prejudice is if "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." Cronic, 466 U.S.
at 659-60. Since 1984, the time the Court articulated the tests for
actual and per-se prejudice in Strickland and Cronic, it has never once
found per-se prejudice under this third prong of Cronic.
In Cronic, the Supreme Court confronted the issue of a young real-
estate lawyer who was allowed only 25 days of pretrial preparation
in a complex mail fraud case. See Cronic, 466 U.S. at 649. The Court
12 GLOVER v. MIRO
held that despite a limited time to investigate and prepare the case, the
limited experience of counsel, the gravity of the charge, the complex-
ity of possible defenses, and the limited accessibility of witnesses to
counsel, a per-se rule of prejudice was not appropriate. See id. at 652,
663.
Glover can point to only one case, Powell v. Alabama, in which the
Court has found a presumption of ineffectiveness based on the cir-
cumstances surrounding the defendant’s representation. See Powell,
287 U.S. at 45. Powell, decided in 1932, involved the infamous trial
of several African-American men who faced the death penalty for
raping a white woman on a train in Alabama. See Powell, 287 U.S.
at 49-50. The defendants in Powell were not asked "whether they had,
or were able to employ, counsel, or wished to have counsel
appointed." Id. at 52. Instead, the court appointed "‘all the members
of the bar’" as counsel for purposes of arraignment. Id. at 56; accord
Cronic, 466 U.S. at 660. On the day of the trial six days later, a law-
yer from another state appeared, "but stated that he had not had an
opportunity to prepare the case or to familiarize himself with local
procedure." Cronic, 466 U.S. at 660. The court thus decided that the
out-of-state lawyer would represent the defendants "with whatever
help the local bar could provide." Id.
The Powell court recognized that the defendants in that case could
not have received the assistance of counsel given the circumstances
of the case. "The defendants, young, ignorant, illiterate, surrounded
by hostile sentiment, haled back and forth under guard of soldiers,
charged with an atrocious crime regarded with especial horror in the
community where they were to be tried, were thus put in peril of their
lives within a few moments after counsel for the first time charged
with any degree of responsibility began to represent them." Powell,
287 U.S. at 57-58.
The circumstances of this case are nowhere close to Powell. Glover
attempts to rely on the limited contact that he had with his first attor-
ney, Jenkinson, the limited time that Askins had to prepare Glover’s
case and to investigate the potential alibi witnesses, the fifty or sixty
other criminal cases for which Askins was responsible, and the sever-
ity of the crimes alleged in Glover’s indictment. These facts simply
do not strip the trial of all its integrity so that a per-se rule of preju-
GLOVER v. MIRO 13
dice is justified without resort to an examination of the actual circum-
stances of the case.
Indeed, this court has already held that in a case involving similar
facts, a finding of per-se prejudice was not appropriate. See Griffin v.
Aiken, 775 F.2d 1226, 1229-30 (4th Cir. 1985). In Griffin, the defen-
dant argued that several factors justified a presumption of ineffective-
ness. These included "minimal pre-indictment investigation by
counsel," "continuous presence of counsel in court on other matters
in the three-day period between indictment and trial," "limited time
to talk with [the defendant] in the time period between the prelimi-
nary hearing and the morning of trial," and "the inability of counsel
appointed on the day before trial to present constitutional grounds for
the suppression of evidence since counsel had no knowledge of the
facts of" the defendant’s case. Griffin, 775 F.2d at 1229. Furthermore,
the defendant’s public defender had "between 100 and 140" other
cases pending at the same time. Id. at 1230. Nevertheless, this court
rejected the claim of per-se prejudice because "a review of the cir-
cumstances surrounding [the defendant’s] representation reveals to us
that in the same circumstances it was not unreasonable to expect that
a competent lawyer could render effective assistance of counsel." Id.
at 1230 (citing Cronic, 466 U.S. at 659-60).
And this court has also held that counsel appointed the day after
indictment and the day of trial does not justify a finding of per-se
prejudice under Cronic. See Praylow v. Martin, 761 F.2d 179, 181-83
(4th Cir. 1985). In Praylow, we stated that "late appointment of coun-
sel" fails to justify "a presumption of ineffective assistance of coun-
sel." Id. at 183.
We fail to see any materially distinguishable facts between this
case and Praylow and Griffin. Here, Askins was not appointed until
two days before trial, but he was able to spend some time on the case.
In Praylow, counsel was appointed on the same day as the trial. Here,
Askins had between fifty and sixty other cases, but counsel in Griffin
had between 100 and 140 other cases. In Griffin, counsel spent hardly
any time on the case and was in court on other matters continuously
in the three-day period between indictment and trial. This case, like
Praylow and Griffin, more closely resembles the facts of Cronic than
it does the facts in Powell v. Alabama.
14 GLOVER v. MIRO
Indeed, the Supreme Court has long emphasized that late appoint-
ment of counsel does not ipso facto trigger a rule of per-se prejudice.
See Cronic, 466 U.S. at 661-62. In Chambers v. Maroney, 399 U.S.
42, 53 (1970), the Supreme Court held that it would not presume prej-
udice where counsel appeared in the case only a few minutes before
trial. The Court stated that it was "not disposed to fashion a per se
rule requiring reversal of every conviction following tardy appoint-
ment of counsel." Id. at 54. Thus reviewing courts must generally
regard trials, especially state trials on federal collateral review,
through a particularized and individualized lens rather than through
some broad-brush presumption of prejudice. Courts should not pre-
sume prejudice where the facts show otherwise, and Strickland has
the bedrock virtue of looking at prejudice to the defendant in each
case. We do not think the South Carolina Supreme Court violated any
clearly established law by applying the Strickland rule and thereby
serving the goal of individualized adjudication. Having found that
application of a per-se prejudice standard would be improper, we turn
to the question of whether Glover was actually prejudiced by Askins’
defense.
C.
Glover must show that Askins’ errors sufficiently undermined con-
fidence in the jury’s verdict. See Strickland, 466 U.S. at 694 (There
must be "a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine con-
fidence in the outcome."). Glover maintains that the testimony of San-
dra Jordan and Sylvester Jordan at the state post-conviction hearing
creates a "reasonable probability that the result of the proceeding
would have been different." Id. Like the district court, we disagree.
To begin with, the State presented strong evidence as to Glover’s
guilt. Wayne Cooper, the victim, testified how he spent over an hour
with Glover, how they talked about a variety of things, how they went
to meet friends of Glover’s, and how Glover robbed, beat, and kid-
napped him. The State was not presenting a victim who had a fleeting
and transient exposure to the defendant. Cooper had more than ample
opportunity to determine precisely how the defendant looked, and he
recounted Glover’s appearance to the police at the first opportunity.
GLOVER v. MIRO 15
Furthermore, the State established that Cooper’s car was found in
front of the Wilson trailer, where Glover had recently been seen. The
State also presented the testimony of Betty Lou Coker, who stated
that a badly beaten Cooper did indeed arrive at her trailer, which was
located near the Wilson trailer, on the night of January 22.
After the jury verdict against Glover and the South Carolina
Supreme Court’s affirmance of it, the State gave Glover another
opportunity to present evidence of his innocence at the post-
conviction proceeding. At that hearing, Glover was ably represented
by counsel. Without any time constraints to produce witnesses,
Glover could present only his aunt, Sandra Jordan, and his grandfa-
ther, Sylvester Jordan. Neither could testify that Glover was in Florida
at the time of the crime. Sylvester Jordan could state only that "He
was in Florida when this took place as they say. I don’t know. And
I don’t think he did what they say he did." When pressed for more
information about Glover’s whereabouts on the night of January 22,
Mr. Jordan could state only, "I don’t know nothing."
Sandra Jordan could testify only that Glover was in Florida around
8:00 A.M. on the morning of January 22, leaving ample time for
Glover to arrive in South Carolina by that evening. As the South Car-
olina Supreme Court stated, "Ms. Jordan’s testimony merely placed
[Glover] in Florida between 8:00 and 8:30 a.m. on the date the crimes
occurred. However, the crimes occurred in Williamsburg County over
eleven hours later at approximately 8:30 p.m." Glover, 458 S.E.2d at
540. Indeed, Ms. Jordan estimated that it took her about 6 hours to
drive from Florida to South Carolina. And while both Sandra Jordan
and Glover purported to identify other people who could support the
claim that Glover was in Florida on January 22, none appeared at the
hearing. The testimony of Glover (who chose not to testify at trial),
and of Mr. and Ms. Jordan standing alone, does not create a reason-
able probability of a different outcome. As the South Carolina
Supreme Court noted, "[t]he failure to contact Sylvester or Sandra
Jordan did not result in prejudice to [Glover] as neither witness’s
[post-conviction hearing] testimony established an alibi defense."
Glover, 458 S.E.2d at 540.
Moreover, nothing has cast doubt on Cooper’s testimony. None of
Glover’s witnesses could testify, for instance, that they saw Cooper
16 GLOVER v. MIRO
with a different person on the 22nd. And they could not establish any
reason why Cooper would be fabricating any part of his unfortunate
experience that night. In short, the evidence at the post-conviction
hearing failed to undermine confidence in the outcome of the trial.
Indeed, although the district court granted the writ on the per-se preju-
dice rule of Cronic, it found that Glover could not show actual preju-
dice under Strickland. We agree with the district court on this point.
Indeed, our fine dissenting brother makes no contention that this
defendant is innocent of any of the crimes with which he was
charged. The South Carolina Supreme Court’s finding of no actual
prejudice was not an unreasonable application of clearly established
Federal law.
IV.
It is a cardinal principle of criminal justice that federal courts must
give state court convictions a significant measure of respect. In fed-
eral habeas cases, "deference to state-court findings is mandated by
28 U.S.C. § 2254(d)." Greene v. Georgia, 519 U.S. 145, 146 (1996)
(per curiam); see also Williams, 529 U.S. at 410. The South Carolina
Supreme Court applied the landmark Strickland decision to Glover’s
ineffective assistance of counsel claim and reasonably found an
absence of actual prejudice to the defendant. The state court ruling on
this point was a sound one, and a federal court has no basis for upset-
ting it. For the foregoing reasons, the judgment of the district court
is reversed and remanded for further proceedings consistent with this
opinion.
REVERSED AND REMANDED
MICHAEL, Circuit Judge, dissenting:
Eric Glover, who was charged with kidnaping and other serious
crimes, was denied effective assistance of counsel in the summer of
1991, when the public defender system in Williamsburg County,
South Carolina, broke down completely. Nothing was done on Glov-
er’s case until the third in a succession of lawyers was appointed to
represent him on June 17, 1991, two days before trial. Glover was
tried and sentenced to life in prison on June 19, 1991, before his new
lawyer had an opportunity to contact several potential alibi witnesses
GLOVER v. MIRO 17
who lived out of state. Because no lawyer could have effectively rep-
resented Glover in the circumstances, I would affirm the district
court’s award of the writ of habeas corpus. I therefore dissent,
respectfully.
I.
Glover, who could not afford a lawyer, got trapped in the fallout
after the public defender in Williamsburg County, South Carolina,
resigned in 1991. Glover was arrested in Florida on January 24, 1991,
pursuant to a South Carolina warrant for his arrest on kidnaping and
armed robbery charges. He immediately waived extradition, and on
February 3, 1991, he was transferred to the jail in Williamsburg
County, South Carolina, to await further proceedings. It was not until
three and one-half weeks later, at his preliminary hearing on March
1, 1991, that Glover met with the public defender, Gordon Jenkinson,
for the first and only time. Jenkinson spent a very short time talking
to Glover about his case. Glover was able to convey to Jenkinson his
claim of innocence that was based on an alibi defense: Glover said
that he was in Florida on January 22, 1991, when the crimes for
which he was charged in South Carolina were committed. Glover told
Jenkinson about one alibi witness in particular, Willie Palmer, his
brother-in-law, who Glover says was with him in Florida during the
hours of the South Carolina crimes. Glover, who remained in jail,
wrote Jenkinson several letters listing other potential alibi witnesses
for Jenkinson to interview. Jenkinson never responded to any of
Glover’s letters, and he never contacted Glover after the preliminary
hearing on March 1, 1991. Apart from showing up at Glover’s prelim-
inary hearing, it appears that Jenkinson did not do any work on his
case. In particular, Jenkinson did nothing to investigate Glover’s alibi
defense.
Although Glover was never given any notice of the event, Jenkin-
son resigned as public defender sometime between Glover’s hearing
on March 1 and late May of 1991. Around the first of June all of the
public defender’s cases, numbering about 120, were assigned to two
Williamsburg County lawyers, Jerome Askins and William Pridgen.
The case load was to be divided, with each lawyer taking fifty or sixty
cases. Many of the cases would be called for trial during a two-week
term of court set to begin on June 17, 1991. In the meantime, the pub-
18 GLOVER v. MIRO
lic defender’s resignation had led to a huge backlog of preliminary
hearings. As a result, Askins and Pridgen spent the first two weeks
of June, from morning until evening each day, representing indigent
defendants in preliminary hearings. Because the term of court began
as soon as the preliminary hearings concluded, Askins and Pridgen
had no time to investigate the cases of other defendants, such as
Glover, who had their preliminary hearings earlier.
As the defender’s cases were being divided, Glover’s case was first
assigned to Pridgen. Pridgen, however, discovered that he was already
representing one of Glover’s co-defendants, so he had to decline the
representation of Glover. It was not until Monday, June 17, 1991, the
first day of the term, that Glover’s case was finally assigned to
Askins. On that day Glover was brought to the Williamsburg County
Courthouse, presumably to answer his indictment for kidnaping,
armed robbery, and related charges. At that time Glover believed that
Jenkinson, the public defender, was still his lawyer and that Jenkinson
had subpoenaed the necessary witnesses. Glover was therefore puz-
zled when a man he had never seen before (Askins) came into the
holding room for prisoners, called his name, and told him that he
would be representing him. Glover quickly realized that Askins, who
had just received his file that day, knew nothing about his case. Yet
Glover’s trial was to start in two days, on June 19, 1991.
At their meeting on June 17 Glover said to Askins, "I got witnesses
that can prove I didn’t do this." Glover identified ten persons in Flor-
ida who were potential witnesses, several of whom Glover said could
provide an alibi. The first witness Glover identified was Willie
Palmer, who Glover said was with him in Florida when the kidnaping
and other crimes occurred in South Carolina.
Sometime on Monday, June 17, Askins began trying to contact the
potential witnesses in Florida, but he was not able to reach anyone
that day. Askins’s lack of success is understandable because he was
operating under several impediments. First, because the term of court
was under way and Askins was responsible for about sixty cases, he
could not leave the courthouse. Askins had to remain at the court-
house because, for the most part, he did not "know from day to day
or from hour to hour which case [would] be called or in what order."
Second, Askins did not have telephone numbers for most of the wit-
GLOVER v. MIRO 19
nesses, which, as he acknowledged, impeded his efforts "to try to
locate some of these people." Third, there were no pay telephones or
other convenient telephone facilities for lawyers in the Williamsburg
County Courthouse. As a result, Askins had to borrow a telephone
wherever he could find one, sometimes in the clerk’s office and some-
times in other offices. When a potential witness was not available to
take his call, Askins was not able to provide a handy number where
he could be reached for a callback. Fourth, Askins had no assistance
in his efforts to contact witnesses or otherwise to investigate Glover’s
case. In particular, Askins did not have access to an investigator or
the funds to hire one.
On June 18, the day before trial, Askins was only able to contact
two of the ten persons on the Florida list, Glover’s father and step-
mother. They, however, were never identified as alibi witnesses.
Finally, on the morning of trial Askins was able to talk to one of the
potential alibi witnesses from Florida, Roy Brown, who could not
provide any assistance. Thus, as trial began Askins had not contacted
(indeed, he was never able to contact) seven of the Florida alibi wit-
nesses. Most notably, he did not contact Willie Palmer, the main alibi
witness identified by Glover.
Because of his inability in the time available to get in touch with
potential alibi witnesses in Florida, Askins realized that Glover
"would be at a terrible disadvantage" if the trial went forward as
scheduled. Accordingly, Askins moved for a continuance. He advised
the court that he had not had the opportunity to talk with several Flor-
ida residents who, according to his client (Glover), could testify that
Glover was in Florida and was "not in South Carolina during the
times of these alleged offenses." The court denied the motion, noting
that it was "not going to continue the case based on Florida witnesses
the court has no jurisdiction over." Apparently, neither the court nor
Askins was aware that a defendant in a criminal case in South Caro-
lina could subpoena out-of-state witnesses under the Uniform Act to
Secure the Attendance of Witnesses from Without a State in Criminal
Proceedings. See S.C. Code Ann. § 19-9-70; Fla. Stat. Ann. § 942.02.
Glover was forced to trial on June 19. The trial ended that same
day, and Glover presented no defense. After the jury returned a guilty
verdict at 6:36 p.m., the judge proceeded directly to post-trial motions
20 GLOVER v. MIRO
and sentencing. (All of these proceedings are reported in less than
three pages of transcript.) Askins moved for a new trial on the ground
that there had been insufficient time to contact witnesses in Florida.
The motion was denied. The judge then announced that the matter
was "ready for sentencing." The judge asked Glover four or five per-
functory questions, heard very briefly from Askins, and then sen-
tenced Glover to life in prison plus ten years. Glover was nineteen
years old when he was sentenced. At that time neither the trial judge
nor Askins knew that shortly before Glover’s trial the South Carolina
kidnaping statute had been amended to change the penalty from a
mandatory life sentence to a term not to exceed thirty years. Compare
S.C. Code Ann. § 16-3-910 (Law. Co-op. 1985) with § 16-3-910
(Law. Co-op. Supp. 2000).
The South Carolina Supreme Court affirmed Glover’s conviction
and sentence. Thereafter, Glover filed an application for post-
conviction relief in state court. After an evidentiary hearing the state
habeas court granted Glover a new trial, finding that he had "received
ineffective assistance of counsel due to the shortness of time between
counsel’s initial meeting with [Glover] and his trial only two (2) days
later." The court also found that Glover "was not afforded sufficient
time within which to contact potential witnesses." A divided (3-2)
South Carolina Supreme Court reversed on the ground that Glover
"failed to show [that] counsel’s action or inaction resulted in [actual]
prejudice." Glover v. South Carolina, 458 S.E.2d 538, 540 (S.C.
1995). Glover then filed a petition for a writ of habeas corpus in fed-
eral court in South Carolina. The district judge granted the writ after
concluding that Glover "was both actually and constructively denied
the assistance of counsel." I would affirm the order granting the writ
for the following reasons.
II.
The Sixth Amendment right to counsel "guarantees an accused
‘adequate legal assistance.’" United States v. Cronic, 466 U.S. 648,
655 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)).
"Unless the accused receives the effective assistance of counsel, ‘a
serious risk of injustice infects the trial itself.’" Id. at 656 (quoting
Sullivan, 446 U.S. at 343). To establish ineffective assistance of coun-
sel, a defendant must show (1) objectively deficient performance and
GLOVER v. MIRO 21
(2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984). The majority readily concludes, and the state concedes, that
Glover meets the first element of the Strickland test because his law-
yer’s "performance was not objectively reasonable." Ante at 9. The
question is whether Glover has established prejudice, and I am con-
vinced that he has. Prejudice occurs when the lawyer’s substandard
performance "deprive[s] the defendant of a fair trial, a trial whose
result is reliable." Strickland, 466 U.S. at 687. As a general rule, a
defendant must show actual prejudice, but there are at least three situ-
ations when prejudice is presumed. See Cronic, 466 U.S. at 658-660.
One situation is when "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 inquiring into the
actual conduct of the trial." Id. at 659-60. A presumption of prejudice
does not follow automatically from the "‘tardy appointment of coun-
sel.’" Id. at 661 (quoting Chambers v. Maroney, 399 U.S. 42, 54
(1970)). However, when circumstances "make it unreasonable to
expect that counsel could adequately prepare for trial," a presumption
of prejudice is justified. Id. at 661-62. Specifically, prejudice may be
presumed when circumstances surrounding the short time available
for investigation and preparation make witnesses inaccessible to the
defense. See id. That is this case.
The majority rejects Glover’s claim by saying that he seeks "some
broad-brush presumption of prejudice." Ante at 14. The picture that
Glover paints is not done with a broad brush. It portrays a set of cir-
cumstances that would render any lawyer — no matter how skilled —
incapable of providing effective assistance. The right to the effective
assistance of counsel includes the right to have one’s lawyer ade-
quately investigate and prepare the case. See Powell v. Alabama, 287
U.S. 45, 57-58 (1932) (noting that "consultation, thoroughgoing
investigation and preparation [are] vitally important" in providing
effective representation).
Due to a peculiar set of circumstances, Glover’s lawyer (Askins)
was assigned a backbreaking load of work that had to be done under
intolerable conditions in too little time. Sometime in the second quar-
ter of 1991 the Williamsburg County, South Carolina, public defender
resigned, leaving about 120 indigent defendants without counsel. As
a two-week term of court was about to begin, during which many of
22 GLOVER v. MIRO
these cases would be called, Askins learned that he would be assigned
one-half (50 to 60) of the public defender’s cases. Askins was not
assigned Glover’s case until the first day of the term, Monday, June
17, which was just two days before trial. When Askins met with
Glover that Monday, he learned that Glover wished to assert an alibi
defense to the several charges, which included kidnaping. Glover
gave Askins a list of ten witnesses (most of them in the alibi category)
located in Florida. Glover was not able to provide telephone numbers.
To begin with, two days is not enough time to investigate and pre-
pare an alibi defense based on witnesses who have never before been
contacted and who are out of state, several hundred miles away.
Askins’s problems of lack of time and distant witnesses were aggra-
vated by other conditions. The term of court was under way, and
Askins could not leave the courthouse because he was responsible for
many cases in addition to Glover’s. As Askins acknowledged, he did
not know from hour to hour when some of his other cases might be
called. Askins did not have the assistance of an investigator, so he had
to try to contact the Florida witnesses by telephone from the court-
house. Because there were no telephone facilities available for law-
yers, Askins had to borrow a telephone in the clerk’s office or in other
public offices as he attempted to locate the Florida witnesses. When
witnesses were not available at the time Askins called, it was difficult
for him to leave messages and request callbacks. It is little wonder
that Askins was not able to contact any witnesses on Monday and
only two on Tuesday (Glover’s parents, who were not alibi wit-
nesses). It was not until Wednesday, the day of trial, that Askins
finally got in touch with one of the potential alibi witnesses, Roy
Brown, who could not help. The trial took place without Askins con-
tacting the other alibi witnesses, including the main one, Willie
Palmer, who Glover says was with him in Florida when the crimes in
South Carolina occurred.
With respect to the issue of witness availability, the state habeas
court determined that even if Askins had located the witnesses in
Florida, they would not have been available for trial. In the course of
two short days Askins would have had to contact the witnesses in
Florida, have subpoenas issued and served in Florida, arrange for the
witnesses to travel to South Carolina, and ultimately prepare them to
testify. The state habeas court therefore found — in a finding that was
GLOVER v. MIRO 23
not disturbed by the South Carolina Supreme Court — that "even if
[Askins] had contacted the witnesses who could have helped, they
could not get here in time from Florida as the case was due to com-
mence" immediately. Glover, therefore, was denied access to his wit-
nesses.
Askins was not able to spend all of the two days between his
appointment and trial on Glover’s case. Certain of his other fifty or
sixty indigent cases demanded some of his time. As the district court
observed, "[c]ommon sense dictates . . . that substantial portions of
the brief time available to [Askins] during the two days . . . was dedi-
cated to the other cases which were assigned to him." The workload
and time pressures not only prevented Askins from conducting a thor-
ough factual investigation, they also kept him from doing the most
basic legal research. First, when Askins moved for a continuance, he
was unable to respond when the judge denied the motion on the
ground that the Florida witnesses were beyond the court’s subpoena
power. If time and circumstances had allowed for thorough research,
Askins would have known that the out-of-state witnesses were subject
to subpoena under the uniform act adopted by South Carolina and
Florida. Second, when the trial judge, within minutes of the guilty
verdict, sentenced Glover to life in prison on the kidnaping count,
Askins was unable to advise the judge that kidnaping no longer car-
ried a mandatory life sentence. A review of the recent amendment to
the kidnaping statute would have revealed that kidnaping carried a
maximum term of thirty years. The sentencing error will be corrected,
but Askins’s inability to research the penalty for kidnaping confirms
that circumstances rendered him inherently incapable of providing
effective assistance.
I respectfully disagree with the majority’s argument that the exist-
ing cases do not suggest that Glover is entitled to relief. Specifically,
the majority contends (1) that Glover’s case is "nowhere close" to
Powell v. Alabama, 287 U.S. 45 (1932), where the Supreme Court
presumed ineffective assistance based on the circumstances and (2)
that there are no "materially distinguishable factors" between Glov-
er’s case and Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985), and
Praylow v. Martin, 761 F.2d 179 (4th Cir. 1985), two cases where we
declined to presume prejudice. Glover’s case is not like Powell v. Ala-
bama to the extent that he was not seized by a sheriff’s posse, placed
24 GLOVER v. MIRO
under guard of the militia, or arraigned and tried "in an atmosphere
of tense, hostile and excited public sentiment." Powell, 287 U.S. at
51. Glover’s case is like Powell v. Alabama, however, on the funda-
mental point that he was "not accorded the right to counsel in any
substantial sense" because his lawyer was unable to engage in "thor-
oughgoing investigation and preparation." Id. at 57, 58.
Glover’s case is materially different from Griffin and Praylow.
Neither case involved a situation where defense counsel was unable
to contact potential witnesses or conduct a thorough investigation. In
Griffin the defendant’s lawyer was carrying between 100 to 140
cases, but he had nearly two months, not two days, to prepare the
case. During that time the lawyer was able to meet with the defendant
several times, employ an investigator, review the prosecutor’s files,
and interview several witnesses. This level of pretrial preparation, we
held, did not "justify a presumption of ineffective counsel." Griffin,
775 F.2d at 1230-31. In Praylow the defendant had two lawyers rep-
resenting him, and he entered a guilty plea after talking with them
several times. Although one of the lawyers was not appointed to rep-
resent the defendant until the day of his guilty plea, the other lawyer
had been representing him on a related case for over seven months.
The two lawyers worked together on the case and conducted an ade-
quate investigation. In these circumstances, we declined to presume
ineffectiveness. See Praylow, 761 F.2d at 183. In short, neither Griffin
nor Praylow stands in the way of a writ in this case.
I am convinced that the South Carolina Supreme Court, in revers-
ing the grant of the writ by the state habeas court, made "a decision
that was contrary to . . . clearly established Federal law, as determined
by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).
The rule in Cronic is straightforward: circumstances giving rise to a
Sixth Amendment violation are present "when although counsel is
available to assist the accused during trial, the likelihood that any law-
yer, 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." Cronic, 466 U.S. at 659-
60. The circumstances here prevented Askins from conducting a thor-
ough investigation of Glover’s case, especially his alibi defense. The
situation was so intolerable that no lawyer could have done the job.
Askins’s performance was deficient through no fault of his own, and
GLOVER v. MIRO 25
the circumstances impeding his ability to provide Glover effective
representation trigger a presumption of prejudice. The state habeas
court and the district court were therefore correct: the writ should be
granted.