United States Court of Appeals
for the Fifth Circuit
No. 17-20661
Deshun Thomas,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal
Justice, Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:14-CV-290
ON PETITION FOR REHEARING EN BANC
(Opinion 7/29/20, 968 F.3d 352 (5th Cir. 2020)
Before Davis, Jones, and Engelhardt, Circuit Judges.
Per Curiam:
The court having been polled at the request of one of its members,
and a majority of the judges who are in regular active service and not
disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ. R. 35),
the petition for rehearing en banc is DENIED.
No. 17-20661
In the en banc poll, 6 judges voted in favor of rehearing (Judges
Stewart, Dennis, Elrod, Graves, Higginson, and Willett), and 11 judges voted
against rehearing (Chief Judge Owen and Judges Jones, Smith, Southwick,
Haynes, Costa, Ho, Duncan, Engelhardt, Oldham and Wilson).
ENTERED FOR THE COURT:
______________
Edith H. Jones
United States Circuit Judge
2
No. 17-20661
James E. Graves, Jr., Circuit Judge, dissenting from the denial of
rehearing en banc, joined by ELROD, Circuit Judge:
Because the panel opinion is contrary to both Haynes v. Cain, 298 F.3d
375 (5th Cir. 2002) and United States v. Cronic, 466 U.S. 648 (1984), I
respectfully dissent from the denial of rehearing en banc.
This court granted a certificate of appealability on Deshun Thomas’
claim that his trial counsel failed to subject the prosecution’s case to
meaningful adversarial testing in violation of Cronic. The panel found no
error and affirmed. In doing so, the panel concluded that Thomas’ claim
failed regardless of whether de novo review or AEDPA applied.1
To prevail on a claim of ineffective assistance of counsel, a petitioner
must typically satisfy the two-prong test of deficiency and prejudice under
Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that counsel’s
performance was deficient, “requires showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment.” Id. at 687 (internal marks omitted).
To establish prejudice, a petitioner must show “that counsel’s errors were
so serious as to deprive the defendant of a fair trial, a trial whose result is
reliable.” Id.
As the panel stated, Cronic created a limited exception to the
application of Strickland’s two-part test where prejudice is presumed in
1
I agree that de novo review applies. However, I would conclude that Thomas is
entitled to relief under either de novo review or AEDPA deference.
3
No. 17-20661
certain situations. See Haynes, 298 F.3d at 380. Prejudice is presumed in
three situations, (1) the complete denial of counsel at a critical stage; (2) if
counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing; and (3) where counsel is called upon to render assistance
under circumstances where competent counsel very likely could not. See Bell
v. Cone, 535 U.S. 685, 695-96 (2002); see also Haynes, 298 F.3d at 380; and
Cronic, 466 U.S. at 659. Thomas relies on the second exception.
The panel noted that the state Fourteenth Court of Appeals “held
that Thomas’s trial counsel’s closing arguments were professionally
incompetent in violation of Strickland v. Washington, 466 U.S. 668 . . . (1984)
because they essentially conceded his client’s guilt, but appellate counsel had
waived any showing, pursuant to the other Strickland prong, of prejudice to
Thomas.” Thomas v. Davis, 968 F.3d 352, 353 n.1 (5th Cir. 2020). The panel
further found it “rather odd” that neither the state habeas court nor the
Texas Court of Criminal Appeals addressed the state appellate court’s
holding. But the panel concluded that the discrepancy did not matter. Id. at
n.2.
Specifically, the Fourteenth Court of Appeals affirmed the conviction
and sentence but said:
However, given trial counsel’s closing argument in the
punishment phase, in which he made specific reference to trial
counsel’s concession of appellant’s guilt in closing argument in
the punishment phase, combined with counsel’s references
to the overwhelmingly powerful evidence at the guilt-
innocence phase, the totality of the representation amounts to
conduct so outrageous that it falls well-below professional
4
No. 17-20661
standards. Appellant’s trial counsel emphasized the strength
of the evidence against appellant and affirmatively argued both
for finding appellant guilty and for assessing a substantial
sentence. Under the circumstances of this case, no plausible
basis exists and no strategic motivation could explain why trial
counsel fashioned his arguments as he did. Appellant has
rebutted the presumption that counsel’s conduct was
reasonably professional and motivated by sound trial strategy
because counsel’s closing arguments amount to conduct “so
outrageous that no competent attorney would have engaged
in it.” Appellant has satisfied the first prong in Strickland by
showing his trial counsel’s conduct was deficient such that it
fell below the standard of professional norms.
See Thomas v. State, No. 14-06-00540-CR, 2008 WL 596228, *4 (Tex. App.
Mar. 6, 2008)(Thomas II)(internal citations omitted). But, after finding that
Thomas established the deficiency prong of Strickland, the court then found
that he had “waived error as to Strickland’s second prong by failing to
adequately brief it on appeal.” Id. at *5.
The panel here relied on Haynes to conclude that Thomas’ trial
counsel did not entirely fail to subject the prosecution’s case to meaningful
adversarial testing. Thomas, 968 F.3d at 355; see also Haynes, 298 F.3d at 381.
In doing so the panel directed us to the district court’s opinion, which said
that counsel advocated on Thomas’ behalf throughout trial, moved to
suppress evidence and cross-examined witnesses. It further concluded that
counsel did not concede the only factual issue in dispute, but merely
described evidence against Thomas as “really strong,” “substantial,”
“persuasive,” and “pretty powerful.” Thomas, 968 F.3d at 355. The panel
also pointed to counsel’s admonishment to the jury that any reasonable doubt
5
No. 17-20661
required them to acquit, before concluding that, read in context, counsel’s
“summation indicates that his comments were strategically made to maintain
credibility with the jury.” Id. at 356. Finally, it concluded that counsel’s
sentencing arguments during the punishment phase confirmed this
“strategy,” while noting that counsel died after trying this case and was
never available for post-conviction inquiry about the defense or any alleged
strategy. Id. at n.6.
However, the record does not support these conclusions, which
conflict with controlling authority. As an initial matter, strategy goes to
counsel’s performance, not the prejudice factor. Strickland, 466 U.S. at 698-
99. The state appellate court already found that Thomas had established
deficient performance. The only issue remaining was whether the deficient
performance prejudiced Thomas, which the court said Thomas had failed to
brief. The panel and the district court disregarded the state appellate court’s
finding and reweighed the performance factor to determine that counsel’s
deficient performance was mere strategy.
As the panel conceded, “Cronic applies to concessions only when they
result in a ‘complete abandonment of counsel’; that is, the attorney must
concede ‘the only factual issues in dispute.’” Thomas, 968 F.3d at 355
(quoting Haynes, 298 F.3d at 381).2 Again, the panel concluded that counsel
2
The panel cites Barbee v. Davis, 728 F. App’x 259, 264 (5th Cir. 2018) for the
proposition that the “Supreme Court has held that even defense counsel’s full concession
of guilt is not necessarily an indication that counsel has entirely failed to function as the
client’s advocate.” Id. (quoting Florida v. Nixon, 543 U.S. 175, 189–91 (2004)) (internal
marks and emphasis omitted). Nixon is easily distinguished as counsel there explained his
6
No. 17-20661
had not conceded the only factual issues in dispute, pointing to various
actions taken by counsel throughout the trial. However, regardless of what
counsel did earlier at trial, he conceded the only factual issues in dispute
when he admitted Thomas’ guilt during closing and, thus, abandoned any
attempt to subject the prosecution’s case to meaningful adversarial testing.
Moreover, following the concession in Haynes, counsel “remained active at
trial, probing weaknesses in the prosecution’s case on the issue of intent,”
and cross-examining witnesses. Id. 298 F.3d at 382. Here, counsel conceded
guilt during closing arguments. Thus, there was no opportunity for counsel
to rectify his concession during some later portion of the proceedings.
Specifically, counsel repeatedly assured the jury of his trial experience
and made numerous explicit statements regarding Thomas’ guilt, such as:
(1) “it seems really strong to me that this young man is guilty, this person I’m
representing is guilty;”(2) he was “convinced that the evidence [of
Thomas’s guilt] [was] pretty powerful;” (3) there was “a substantial amount
of evidence” demonstrating Thomas’ guilt; and (4) “If you reach a verdict
that says he’s guilty, that’s the way it is. I appreciate it.” Thomas II, 2008
WL 596228, ** 1-2 (emphasis omitted). The jury convicted Thomas, and the
trial proceeded to the punishment phase, where defense counsel first
acknowledged that he had “practically consented to a guilty verdict in this
case, because I thought the evidence was overwhelming based on the many
strategy to Nixon several times to “concede guilt and to home in, instead, on the life or
death penalty issue.” Id. at 189. Counsel here neither explained his strategy nor attempted
to get a shorter sentence. In fact, counsel here failed to offer any mitigation.
7
No. 17-20661
years of experience of trying cases” and reiterated that the evidence against
Thomas was “overwhelming.” Id. at 2 (emphasis omitted). Counsel then
argued that “[a]ll of the evidence—and I would be a fool if I suggested
otherwise, and I’m not—is compelling that this young man deserves a pretty
substantial sentence. I’m not talking about of [sic] sentence of 15 years. All
of the evidence is compelling.” Counsel then told the jury he wanted them
to take into consideration that “[a] young man lost his life, destroyed his
mother practically” and all of Thomas’ prior convictions before stating, “I
can assure you I’m a fairly wordy individual, but I know I can’t deter you
from the things you ought to do in this case. And in this case, I’m convinced,
based on all of the facts, he deserves a substantial sentence.” Thomas II, 2008
WL 596228, 2. Counsel offered nothing in mitigation and told the jury he
could not quarrel with any sentence the jury selected. Id.
That complete abandonment of counsel falls squarely within Cronic.
See Haynes, 298 F.3d at 381. When there is a “breakdown of the adversarial
process,” prejudice is presumed. Cronic, 466 U.S. at 657–58. Counsel’s
explicit concession of guilt on the only offense and request for a substantial
sentence as a result is a breakdown of the adversarial process. Further, the
subsequent objection regarding Thomas’ failure to testify does not in any way
correct this breakdown. The panel ultimately concluded that counsel’s
“strategy” paid off because Thomas received only seventy-five years
imprisonment rather than life. The record in this matter clearly
demonstrates that Thomas received seventy-five years instead of life in spite
of counsel’s performance, not because of counsel’s performance. Counsel
8
No. 17-20661
did not admit Thomas’ guilt only to a lesser-included offense; counsel
admitted Thomas’ guilt to the only offense. Counsel did not concede guilt
in an attempt to get a lighter sentence; counsel conceded guilt and asked for
a substantial sentence while failing to present anything in mitigation. At the
point that counsel conceded guilt, he failed to mount a defense regardless of
anything he had done prior to that concession. At the point that counsel
asked for a substantial sentence, he verified that this was not an attempt at
strategy. Thus, the panel decision is contrary to both Haynes and Cronic.
For these reasons, I respectfully dissent from the denial of rehearing
en banc.
9