dissenting:
We have a state court finding that counsel slept “during portions of [Calvin Bur-dine’s capital murder] 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 habe-as application, it found that the trial court’s findings (i.e., “defense counsel repeatedly dozed and/or actually slept during substantial portions of [Burdine’s] capital murder trial”) were supported by the record. Additionally, the State concedes that we are bound by those findings of fact.
It is well established that a defendant “requires the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). I conclude that being represented by counsel who slept through substantial portions of a client’s capital murder trial violates the Sixth Amendment right to counsel, and, thus, Burdine should be entitled to a new trial with the benefit of counsel who does not sleep during substantial portions of his trial. In my opinion, it shocks the conscience that a defendant could be sentenced to death under the circumstances surrounding counsel’s representation of Burdine.
I. RETROACTIVITY ANALYSIS
I disagree with the majority’s conclusion that Burdine’s claim creates a new rule under Teague v. Lane, 489 U.S. 288, 310, 109 S.Ct. 1060, 1075, 103 L.Ed.2d 334 (1989). Although the majority believes that Burdine’s case does not fall within an exception to Teague, it nonetheless assumes that it does and addresses the merits of Burdine’s claim.
I, on the other hand, am convinced that granting relief on Burdine’s claim does not require announcing a new constitutional rule of criminal procedure. With respect to the merits of the claim, I believe that the undisputed state court findings warrant presuming prejudice without delving into counsel’s actual performance at trial.
In Teague, a plurality of the Supreme Court espoused Justice Harlan’s view of retroactivity that a new rule would not be applied on collateral review to cases that became final prior to the announcement of the new rule. Acknowledging that the task of determining whether a case announces a new rule is often difficult, the plurality expressly did not “attempt to define the spectrum of what may or may not constitute a new rule” for purposes of ret-roactivity. Teague, 489 U.S. at 301, 109 S.Ct. at 1070. Generally speaking, however, a ,case announces a new rule if it breaks new ground or imposes a heretofore new obligation on the States or the federal government. Id. In other words, if the result was not dictated by precedent existing at the time the petitioner’s conviction became final, such a case announces a new rule.
Shortly thereafter, the plurality’s retro-activity analysis became part of the holding in Penry v. Lynaugh, 492 U.S. 302, 316, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989). The analysis in Penry is instructive with respect to what constitutes a new rule under Teague. Penry claimed that *966the jury was unable to fully consider and give effect to mitigating evidence of his mental retardation and childhood abuse when it answered the three statutory special issues at sentencing in violation of the Eighth Amendment. Penry did not make a facial challenge to the Texas death penalty statute. Of course, prior to Penry, the Supreme Court had upheld the statute against a facial, Eighth Amendment challenge in Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
Instead, Penry claimed that, “on the facts of [his] case, the jury was unable to fully consider and give effect to the mitigating evidence ... in answering the three special issues.” 492 U.S. at 315, 109 S.Ct. at 2945 (emphasis added). The Supreme Court opined that such a claim for relief did not impose a new obligation on Texas. “Rather, Penry simply asks the State to fulfill the assurance upon which Jurek was based: namely, that the special issues would be interpreted broadly enough to permit the sentencer to consider all of the relevant mitigating evidence a defendant might present in imposing sentence.” Id.
In the case at bar, I believe that Teague does not bar Burdine’s claim for relief because it is simply a request to enforce his Sixth Amendment right to have effective assistance of counsel at every critical stage of his capital murder trial.1 Bur-dine’s claim is that, on the facts of his case, he was denied counsel.
Prior to Burdine’s conviction becoming final, the Supreme Court held that, to prevail on an ineffective assistance of counsel claim, a petitioner must demonstrate that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, the same day the Supreme Court decided Strickland, it also decided United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). In Cronic, the Supreme Court opined that “in some cases the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided. Clearly, in such cases, the defendant’s Sixth Amendment right to have Assistance of Counsel is denied.” 466 U.S. at 656, 104 S.Ct. at 2044 n. 11 (internal quotation marks and citation omitted). The Supreme Court explained that although the petitioner generally bears the burden of demonstrating a constitutional violation, there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” Id. at 658, 104 S.Ct. at 2046. Stating what it termed obvious, the Court explained that a complete denial of counsel would warrant a presumption of prejudice. Id. at 659, 104 S.Ct. at 2046. 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.” Id. Likewise, “if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable.” Id. The Court explained that “only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.” Id. at 662, 104 S.Ct. at 2048. Ultimately, in Cronic, the Supreme Court held the circumstances of the case (inexperienced counsel was given only 25 days to prepare for trial on complex mail fraud charges) did not warrant presuming prejudice.2
*967The rule I glean from Cronic is that we must look to the circumstances surrounding counsel’s representation (or lack thereof) to detemjine whether a presumption of prejudice is warranted. That is the rule I believe should be applied to Burdine’s case. Such a rule by its nature requires a case-by-case determination. As Justice O’Connor has opined, “[i]f a proffered factual distinction between the case under consideration and pre-existing precedent does not change the force with which the precedent’s underlying principle applies, the distinction is not meaningful, and any deviation from precedent is not reasonable.” Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 2497, 120 L.Ed.2d 225 (1992) (O’Connor, J., concurring). Because Cronic was decided prior to Bur-dine’s conviction becoming final, Teague poses no bar to applying the rule in Cronic.3
We recently applied Cronic to an appeal from a 28 U.S.C. § 2255. See United States v. Russell, 205 F.3d 768 (5th Cir.2000). In that case, Russell, along with 16 codefendants, 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 before returning to trial. An attorney for a codefendant represented to the court that he had Russell’s permission to represent Russell that one day. The district court neither apprised Russell of his rights nor made any inquiries of Russell on or off the record. We stated that it was unclear whether the district court accepted counsel’s attempt to offer to represent Russell. Russell, 205 F.3d at 769-71. Thus, we concluded that Russell did not have counsel and did not waive his right to counsel for the two days in question. After instructing the government that no evidence directly relating to Russell be presented during counsel’s absence, the court allowed the trial to continue.
On appeal from the denial of his section 2255 motion, Russell urged this Court to hold that the taking of any evidence at trial in the absence of counsel warrants a presumption of prejudice under Cronic. We disagreed. Id. at 771. Instead, we recognized Cronic held that because the guiding hand of counsel is essential, ‘“a trial is unfair if the accused is denied counsel at a critical stage of his trial.’ ” Id. (quoting Cronic, 466 U.S. at 658, 104 S.Ct. at 2047). We further opined that although Cronic did not provide much guidance with respect to what parts of a trial are “critical,” it did make clear the following:
First, there must be a denial of such significance that it makes the adversary process itself unreliable. [Cronic, 466 *968U.S. at 659, 104 S.Ct. at 2047]. Second, the Cronic court makes clear that “only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel’s actual performance at trial.”
205 F.3d at 771 (quoting Cronic, 466 U.S. at 662, 104 S.Ct. at 2048). We concluded that the adversary process was unreliable because counsel was not “present to keep the taint of conspiracy from spreading to the client.” Id. at 772. Thus, we held that counsel’s absence was at a critical stage of the trial and presumed prejudice.
Here, the majority attempts to distinguish Russell on the basis that the evidence presented during the absence of counsel in that case was easily identifiable, but in this case, “we cannot determine from the trial transcript or witness testimony at the state evidentiary hearing what evidence was being presented, or other activity was taking place, while counsel slept.” Maj. op. at 960. In Burdine’s case we have a state court finding that counsel slept “during portions of [Bur-dine’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 we may not specifically know what evidence was being presented while counsel was slumbering, we know that it was being presented by the State against Bur-dine. In Russell, pursuant to the district court’s instruction, the government was presenting evidence that directly related to his co-conspirators, not Russell. I recognize, as we did in Russell, that evidence against co-conspirators “inferentially increased the taint of guilt of Russell.” 205 F.3d at 772. Nonetheless, certainly the evidence presented while counsel slept at Burdine’s trial at the very least inferentially increased the taint of Burdine’s guilt because he was the only defendant on trial. Indeed, it is arguably a more egregious Sixth Amendment violation to have counsel sleeping while evidence is presented against his client than to have counsel physically absent while evidence is presented against his client’s coconspirators.
In the instant case, I believe the state court findings with respect to counsel sleeping during trial demonstrate a denial of such significance that the adversary process was rendered unreliable. These factual findings justify a presumption of prejudice without delving into counsel’s actual performance at trial.4
In other words, I do not believe that Teague bars the claim to the extent Bur-dine argues he is entitled to a presumption of prejudice because counsel slept during trial such that there was a denial of counsel at a critical stage of his trial. Thus, the question is whether Burdine’s claim rises to this level.
II. CONSTRUCTIVE DENIAL OF COUNSEL
Both the majority and the State purport to accept the state trial court’s findings that defense counsel slept during substantial portions of Burdine’s trial.5 Neverthe*969less, both the majority and the State painstakingly conduct a page-by-page review of the trial record in an apparent attempt to demonstrate that counsel was awake during significant portions of the trial.6 Indeed, after chronicling the activity at trial, the majority states that “there are very few long stretches of transcript in which no activity by Cannon is reflected.” Maj. op. at 963 (emphasis in original). The majority further states that “[pjortions of the transcript reflecting no such activity involve the presentation of contested, in-culpatory evidence, as well as uncontested testimony and exhibits, where Cannon’s attentive participation was irrelevant to the quality of Burdine’s defense.” Id. I simply cannot agree with the majority’s statement that counsel’s attentive participation during the admission of evidence against a defendant on trial for capital murder was irrelevant to the quality of Burdine’s defense. Additionally, the majority speculates regarding whether some of counsel’s silence was attributable to any number of trial strategy considerations. Id. at 963. I believe such speculation is inappropriate because, as recognized by the Second Circuit, “the buried assumption in our Strickland cases is that counsel is present and conscious to exercise judgment, calculation and instinct, for better or worse. But that is an assumption we cannot make when counsel is unconscious at critical times.” Tippins v. Walker, 77 F.3d 682, 687 (2d Cir.1996).
To me, 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. See Javor v. United States, 724 F.2d 831, 834 (9th Cir.1984) (holding that “[w]hen a defendant’s attorney is asleep during a substantial portion of his trial, the defendant has not received the legal assistance necessary to defend his interests at trial” and thus, prejudice must be presumed).7 The factual findings made during Burdine’s state habeas proceedings demonstrate that there was a denial of *970such significance that it made the adversary process unreliable, and, thus, a presumption of prejudice is warranted.8 Thus, based on the state court’s findings that have been accepted by all as presumptively correct, I would affirm the district court’s grant of federal habeas corpus relief, vacate the capital murder conviction, and allow the State to retry Burdine.
. Cf. Bousley v. United States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610, 140 L.Ed.2d 828 (1998) (rejecting the argument that the petitioner’s claim that his guilty plea was not knowing and intelligent was barred by Teague in part because "[tjhere is surely nothing new about this principle....”).
. The State urges that the instant claim requires a new rule because in Cronic, the Court did not presume prejudice. Thus, the State argues, the language in Cronic with respect to presuming prejudice is dictum. However, the Court noted that it had “uniformly found constitutional error without any *967showing of prejudice when counsel was either totally absent, or prevented from assisting the accused during a critical stage of the proceeding.” Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25 (citations omitted). Moreover, prior to Burdine's conviction becoming final, we recognized the law was "well settled that a criminal defendant is entitled to counsel at every stage of a criminal proceeding where substantial rights are involved.” Davis v. Estelle, 529 F.2d 437, 439 (5th Cir.1976) (citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)).
. The State argues that the district court erred in relying on "Cronic's reference to the ‘denial’ of counsel at a critical stage” because the Supreme Court “limited this language to denials of counsel that were attributable to the State or to the total failure of counsel to participate in the trial.” No presumption of prejudice is warranted, posits the State, because there was neither a total failure to participate nor was the State responsible for Cannon’s sleeping during portions of Bur-dine's trial. Although at first blush some of the language in Cronic appears to support the proposition that the State must be responsible for denying the presence of counsel at a critical stage of the trial, further reading of the opinion dispels that view. Specifically, the Court noted that the “fact that the accused can attribute a deficiency in his representation to a source external to trial counsel does not make it any more or less likely that he received the type of trial envisioned by the Sixth Amendment, nor does it justify reversal of his conviction absent an actual effect on the trial process or the likelihood of such an effect.” Cronic, 466 U.S. at 662 n. 31, 104 S.Ct. at 2048 n. 31.
. The majority lakes pains to point out that Burdine failed to raise this claim until nearly eleven years after his trial. I am unsure of the relevance of this fact with respect to our analysis of the claim inasmuch as the state habeas court reached the merits of it and imposed no procedural bar to our addressing it. Also, the majority stresses that Burdine requested that Cannon represent him on direct appeal. Maj. op. at 955-56 . I believe this fact is irrelevant in light of the Supreme Court edict that "we attach no weight to either [the defendant’s] expression of satisfaction with counsel’s performance at the time of his trial, or to his later expression of dissatisfaction.” Cronic, 466 U.S. at 657, 104 S.Ct. at 2046.
. The state court set forth the following evidence supporting his finding:
Three members of the jury [Daniel Strickland, Myra Young Davis, and Craig Engle-hardt] and the clerk of the court [Rose Marie Berry] testified that they witnessed defense counsel repeatedly "nod off” or doze during the trial. All three jurors and the clerk testified that they saw Cannon’s head repeatedly "bob” or “nod” in a man*969ner that is peculiar to a person who is in the process of falling asleep; according to all the witnesses, this happened on more than one day of the trial, typically in the afternoon. Two of three jurors ... and the clerk testified that on at least one occasion they watched defense counsel’s head actually tilt down to his chest for a significant period of time, which gave the unmistakable impression that he was actually sleeping; Juror Engelhardt and the clerk, Beny, estimated that defense counsel's head rested against his chest for at least 10 minutes on one particular occasion during trial. Berry saw defense ... counsel's head rest against his chest on other occasions shorter than 10 minutes. Both Berry and Juror Davis stated that they continuously watched defense counsel for long periods of time and it was clear that he either was in the process of dozing off or was actually sleeping.
The Court finds the most compelling witness was the former clerk of court, Rose Marie Berry. In addition to being credible and having no motive to misrepresent the truth, Berry had the best opportunity of any participant at trial to observe defense counsel during trial, as her testimony and Defense Exhibit # 1A demonstrates, she was approximately 10-12 feet ... from defense counsel. Unlike the trial judge, prosecutor, and jurors, Berry was not required to pay attention to 'witnesses who were testifying; indeed, from her vantage point, she could not even see the witnesses. Beriy adamantly testified that she watched defense counsel continuously during the periods she observed him sleeping.
(footnotes omitted)(brackets in original).
. I would 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.
. See also Tippins, 77 F.3d 682 (presuming prejudice based on evidence that defense counsel was asleep for numerous extended periods during testimony of witnesses).
. As the majority provides, the State's claim that the district court’s application of a presumption of prejudice conflicts with Brecht v. Abrahamson, 507 U.S. 619, 631, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993), is without merit. See Hughes v. Booker, 220 F.3d 346, 353 (5th Cir.2000) (explaining that once we determine that defendant has been constructively denied counsel, any harmless error analysis is unnecessary).