Cite as: 552 U. S. ____ (2008) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
RANDALL WRIGHT, SHERIFF, SHAWANO COUNTY,
WISCONSIN v. JOSEPH L. VAN PATTEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 07–212. Decided January 7, 2008
PER CURIAM.
The Court of Appeals for the Seventh Circuit held that
respondent Joseph Van Patten was entitled to relief under
28 U. S. C. §2254, reasoning that his lawyer’s assistance
was presumptively ineffective owing to his participation in
a plea hearing by speaker phone. Van Patten v. Deppisch,
434 F. 3d 1038 (2006). We granted certiorari, vacated the
judgment, and remanded the case for further considera
tion in light of Carey v. Musladin, 549 U. S. ___ (2006).
On remand, the Seventh Circuit adhered to its original
decision, concluding that “[n]othing in Musladin requires
that our 2006 opinion be changed.” Van Patten v. Endi
cott, 489 F. 3d 827, 828 (2007). We grant the petition for
certiorari now before us and this time reverse the judg
ment of the Seventh Circuit.
I
Van Patten was charged with first-degree intentional
homicide and pleaded no contest to a reduced charge of
first-degree reckless homicide. His counsel was not physi
cally present at the plea hearing but was linked to the
courtroom by speaker phone. After the state trial court
imposed the maximum term of 25 years in prison, Van
Patten retained different counsel and moved in the Wis
consin Court of Appeals to withdraw his no-contest plea.
The thrust of the motion was that Van Patten’s Sixth
Amendment right to counsel had been violated by his trial
counsel’s physical absence from the plea hearing. The
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Per Curiam
Wisconsin Court of Appeals noted that, under state law, a
postconviction motion to withdraw a no-contest plea will
be granted only if a defendant establishes “manifest injus
tice” by clear and convincing evidence. See State v. Van
Pattten, No. 96–3036–CR (Wis. App., May 28, 1997), App.
to Pet. for Cert. A47–A48. While the court acknowledged
that “the violation of the defendant’s Sixth Amendment
right to counsel may constitute a manifest injustice,” id.,
at A48, it found that the absence of Van Patten’s lawyer
from the plea hearing did not violate his right to counsel:
“The plea hearing transcript neither indicates any
deficiency in the plea colloquy, nor suggests that Van
Patten’s attorney’s participation by telephone inter
fered in any way with [Van Patten’s] ability to com
municate with his attorney about his plea. Van
Patten confirmed that he had thoroughly discussed
his case and plea decision with his attorney and was
satisfied with the legal representation he had re
ceived. The court gave Van Patten the opportunity to
speak privately with his attorney over the phone if he
had questions about the plea, but Van Patten de
clined. Further, when Van Patten exercised his right
to allocution at sentencing, in the personal presence of
his attorney, he raised no objection to his plea.” Id.,
at A49–A50.
Applying Strickland v. Washington, 466 U. S. 668 (1984),
the court concluded that “[t]he record does not support,
nor does Van Patten’s appellate brief include, any argu
ment that counsel’s performance was deficient or prejudi
cial,” No. 96–3036–CR, App. to Pet. for Cert. A51, and
denied Van Patten’s motion.
After the Wisconsin Supreme Court declined further
review, Van Patten petitioned for a writ of habeas corpus
under 28 U. S. C. §2254 in Federal District Court. The
District Court denied relief, but the Court of Appeals for
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Per Curiam
the Seventh Circuit reversed. It held that Van Patten’s
Sixth Amendment claim should have been resolved, not
under Strickland’s two-pronged test (which requires a
showing of deficient performance and prejudice to the
defendant), but under the standard discussed in United
States v. Cronic, 466 U. S. 648 (1984) (under which preju
dice may be presumed). Although the Seventh Circuit
recognized that this case “presents [a] novel . . . question,”
Deppisch, 434 F. 3d, at 1040, and conceded that “[u]nder
Strickland, it seems clear [that] Van Patten would have no
viable claim,” id., at 1042, the court concluded that “it is
clear to us that Van Patten’s case must be resolved under
Cronic,” id., at 1043. The resolution was in Van Patten’s
favor.
While the prison warden’s petition for certiorari was
pending, this Court decided Musladin, supra. Musladin
had invoked this Court’s cases recognizing “that certain
courtroom practices are so inherently prejudicial that they
deprive the defendant of a fair trial,” id., at ___ (slip op., at
1). The issue was the significance of these precedents in a
case under §2254, which bars relief on any claim “adjudi
cated on the merits” in state court, unless the state court’s
decision “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as deter
mined by the Supreme Court of the United States.” 28
U. S. C. §2254(d)(1).
The prejudicial conduct involved in Musladin was court
room conduct of private actors. We held that the “in
heren[t] prejudic[e]” test, which we thus far have applied
only in cases involving government-sponsored conduct,
see, e.g., Estelle v. Williams, 425 U. S. 501 (1976); Hol
brook v. Flynn, 475 U. S. 560 (1986), did not clearly extend
to the conduct of independently acting courtroom specta
tors. See Musladin, supra, at ___ (slip op., at 5)
(“[A]lthough the Court articulated the test for inherent
prejudice that applies to state conduct in Williams and
4 WRIGHT v. VAN PATTEN
Per Curiam
Flynn, we have never applied that test to spectators’ con
duct. Indeed, part of the legal test of Williams and
Flynn—asking whether the practices furthered an essen
tial state interest—suggests that those cases apply only to
state-sponsored practices”). For that reason, we reversed
the Court of Appeals’ grant of habeas relief.
Musladin’s explanation of the “clearly established Fed
eral law” requirement prompted us to remand Van
Patten’s case to the Seventh Circuit for further considera
tion. A majority of the panel reaffirmed its original judg
ment, however, on the ground that “[u]nlike Musladin,
this case does not concern an open constitutional ques
tion,” because “[t]he Supreme Court has long recognized a
defendant’s right to relief if his defense counsel was actu
ally or constructively absent at a critical stage of the
proceedings.” 489 F. 3d, at 828. Judge Coffey disagreed,
observing that “the United States Supreme Court has
never held that an attorney is presumed to be ineffective if
he participates in a plea hearing by speaker phone rather
than by physical appearance.” Ibid. (emphasis deleted).
He found that “[t]he Majority Opinion does not comport
with Musladin,” ibid., and dissented from “the court’s
erroneous decision to allow” its original opinion “to stand
as written,” id., at 829. We reach the same conclusion.
II
Strickland v. Washington, 466 U. S. 668 (1984) ordinar
ily applies to claims of ineffective assistance of counsel at
the plea hearing stage. See Hill v. Lockhart, 474 U. S. 52,
58 (1985) (“[T]he two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective
assistance of counsel”). And it was in a different context
that Cronic “recognized a narrow exception to Strickland’s
holding that a defendant who asserts ineffective assis
tance of counsel must demonstrate not only that his attor
ney’s performance was deficient, but also that the defi
Cite as: 552 U. S. ____ (2008) 5
Per Curiam
ciency prejudiced the defense.” Florida v. Nixon, 543 U. S.
175, 190 (2004) (discussing Cronic). Cronic held that a
Sixth Amendment violation may be found “without inquir
ing into counsel’s actual performance or requiring the
defendant to show the effect it had on the trial,” Bell v.
Cone, 535 U. S. 685, 695 (2002), when “circumstances
[exist] that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjusti
fied,” Cronic, supra, at 658. Cronic, not Strickland, ap
plies “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 with
out inquiry into the actual conduct of the trial,” 466 U. S.,
at 659–660,* and one circumstance warranting the pre
sumption is the “complete denial of counsel,” that is, when
“counsel [is] either totally absent, or prevented from as
sisting the accused during a critical stage of the proceed
ing,” id., at 659, and n. 25.
No decision of this Court, however, squarely addresses
the issue in this case, see Deppisch, supra, at 1040 (noting
that this case “presents [a] novel . . . question”), or clearly
establishes that Cronic should replace Strickland in this
novel factual context. Our precedents do not clearly hold
that counsel’s participation by speaker phone should be
treated as a “complete denial of counsel,” on par with total
absence. Even if we agree with Van Patten that a lawyer
physically present will tend to perform better than one on
the phone, it does not necessarily follow that mere tele
——————
* Cronic also applies when “there [is] a breakdown in the adversarial
process,” 466 U. S., at 662, such that “counsel entirely fails to subject
the prosecution’s case to meaningful adversarial testing,” id., at 659.
We have made clear that “[w]hen we spoke in Cronic of the possibility
of presuming prejudice based on an attorney’s failure to test the prose
cutor’s case, we indicated that the attorney’s failure must be complete.”
Bell v. Cone, 535 U. S. 685, 696–697 (2002). It is undisputed that this
standard has not been met here.
6 WRIGHT v. VAN PATTEN
Per Curiam
phone contact amounted to total absence or “prevented
[counsel] from assisting the accused,” so as to entail appli
cation of Cronic. The question is not whether counsel in
those circumstances will perform less well than he other
wise would, but whether the circumstances are likely to
result in such poor performance that an inquiry into its
effects would not be worth the time. Cf. United States v.
Gonzalez-Lopez, 548 U. S. ___, ___ (2006) (slip op., at 7)
(Sixth Amendment ensures “effective (not mistake-free)
representation” (emphasis in original)). Our cases provide
no categorical answer to this question, and for that matter
the several proceedings in this case hardly point toward
one. The Wisconsin Court of Appeals held counsel’s per
formance by speaker phone to be constitutionally effective;
neither the Magistrate Judge, the District Court, nor the
Seventh Circuit disputed this conclusion; and the Seventh
Circuit itself stated that “[u]nder Strickland, it seems
clear Van Patten would have no viable claim.” Deppisch,
434 F. 3d, at 1042.
Because our cases give no clear answer to the question
presented, let alone one in Van Patten’s favor, “it cannot
be said that the state court ‘unreasonabl[y] appli[ed]
clearly established Federal law.’ ” Musladin, 549 U. S.,
at ___ (slip op., at 6) (quoting 28 U. S. C. §2254(d)(1)).
Under the explicit terms of §2254(d)(1), therefore, relief is
unauthorized.
* * *
Petitioner tells us that “[i]n urging review, [the State]
does not condone, recommend, or encourage the practice of
defense counsel assisting clients by telephone rather than
in person at court proceedings, even in nonadversarial
hearings such as the plea hearing in this case,” Pet. for
Cert. 5, and he acknowledges that “[p]erhaps, under simi
lar facts in a direct federal appeal, the Seventh Circuit
could have properly reached the same result it reached
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Per Curiam
here,” ibid. Our own consideration of the merits of tele
phone practice, however, is for another day, and this case
turns on the recognition that no clearly established law
contrary to the state court’s conclusion justifies collateral
relief.
The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Cite as: 552 U. S. ____ (2008) 1
STEVENS, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
RANDALL WRIGHT, SHERIFF, SHAWANO COUNTY,
WISCONSIN v. JOSEPH L. VAN PATTEN
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 07–212. Decided January 7, 2008
JUSTICE STEVENS, concurring in the judgment.
An unfortunate drafting error in the Court’s opinion in
United States v. Cronic, 466 U. S. 648 (1984), makes it
necessary to join the Court’s judgment in this case.
In Cronic, this Court explained that some violations of
the right to counsel arise in “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.
One such circumstance exists when the accused is “denied
the presence of counsel at a critical stage of the prosecu
tion.” Id., at 662. We noted that the “presence” of lawyers
“is essential because they are the means through which
the other rights of the person on trial are secured.” Id., at
653. Regrettably, Cronic did not “clearly establish” the
full scope of the defendant’s right to the presence of an
attorney. See 28 U. S. C. §2254(d)(1).
The Court of Appeals apparently read “the presence of
counsel” in Cronic to mean “the presence of counsel in
open court.” Initially, all three judges on the panel as
sumed that the constitutional right at stake was the right
to have counsel by one’s side at all critical stages of the
proceeding.* See also Van Patten v. Deppisch, No. 04–
——————
* In his opinion for a unanimous panel, Judge Evans explained at
length why respondent had not had the assistance of counsel at a
critical stage of the proceeding—the plea hearing—which resulted in a
sentence of imprisonment for 25 years. He wrote, in part:
The Sixth Amendment’s right-to-counsel guarantee recognizes ‘the
2 WRIGHT v. VAN PATTEN
STEVENS, J., concurring in judgment
——————
obvious truth that the average defendant does not have the professional
legal skill to protect himself when brought before a tribunal with power
to take his life or liberty.’ Johnson v. Zerbst, 304 U. S. 458, 462–63
(1938). ‘Of all the rights that an accused person has, the right to be
represented by counsel is by far the most pervasive for it affects his
ability to assert any other rights he may have.’ Cronic, 466 U. S. at 654
(citation omitted). Thus, a defendant requires an attorney’s ‘guiding
hand’ through every stage of the proceedings against him. Powell v.
Alabama, 287 U. S. 45, 53 (1932); Cronic, 466 U. S. at 658. It is well-
settled that a court proceeding in which a defendant enters a plea (a
guilty plea or, as here, a plea of no contest) is a ‘critical stage’ where an
attorney’s presence is crucial because ‘defenses may be . . . irretrievably
lost, if not then and there asserted.’ Hamilton v. Alabama, 368 U. S.
52, 54 (1961). See also White v. Maryland, 373 U. S. 59, 60 (1963);
United States ex rel. Thomas v. O’Leary, 856 F. 2d 1011, 1014 (7th Cir.
1988). Indeed, with plea bargaining the norm and trial the exception,
for most criminal defendants a change of plea hearing is the critical
stage of their prosecution.
In deciding whether to dispense with the two-part Strickland inquiry,
a court must evaluate whether the ‘surrounding circumstances make it
unlikely that the defendant could have received the effective assistance
of counsel,’ Cronic, 466 U. S. at 666, and thus ‘justify a presumption
that [the] conviction was insufficiently reliable to satisfy the Constitu
tion,’ id. at 662. In this case, although the transcript shows that the
state trial judge did his best to conduct the plea colloquy with care, the
arrangements made it impossible for Van Patten to have the ‘assistance
of counsel’ in anything but the most perfunctory sense. Van Patten
stood alone before judge and prosecutor. Unlike the usual defendant in
a criminal case, he could not turn to his lawyer for private legal advice,
to clear up misunderstandings, to seek reassurance, or to discuss any
last-minute misgivings. Listening over an audio connection, counsel
could not detect and respond to cues from his client’s demeanor that
might have indicated he did not understand certain aspects of the
proceeding, or that he was changing his mind. If Van Patten wished to
converse with his attorney, anyone else in the courtroom could effec
tively eavesdrop. (We assume the district attorney would balk if he
were expected to conduct last-minute consultations with his staff via
speakerphone in open court, ‘on the record,’ with the defendant taking
in every word.) No advance arrangements had been made for a private
line in a private place, and even if one could ‘perhaps’ have been pro
vided, it would have required a special request by Van Patten and,
apparently, a break in the proceedings. In short, this was not an
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STEVENS, J., concurring in judgment
1276, 2006 U. S. App. LEXIS 5147 (CA7, Feb. 27, 2006)
(noting that no member of the Seventh Circuit requested a
vote on the warden’s petition for rehearing en banc). In
my view, this interpretation is correct. The fact that in
1984, when Cronic was decided, neither the parties nor
the Court contemplated representation by attorneys who
were not present in the flesh explains the author’s failure
to add the words “in open court” after the word “present.”
As the Court explains today, however, the question is
not the reasonableness of the federal court’s interpretation
of Cronic, but rather whether the Wisconsin court’s nar
rower reading of that opinion was “objectively unreason
able.” Williams v. Taylor, 529 U. S. 362, 409 (2000). In
light of Cronic’s references to the “complete denial of
counsel” and “totally absent” counsel, 466 U. S., at 659,
and n. 25, and the opinion’s failure to state more explicitly
that the defendant is entitled to “the presence of counsel
[in open court],” id., at 662, I acquiesce in this Court’s
conclusion that the state-court decision was not an unrea
sonable application of clearly established federal law. In
doing so, however, I emphasize that today’s opinion does
not say that the state courts’ interpretation of Cronic was
correct, or that we would have accepted that reading if the
case had come to us on direct review rather than by way of
28 U. S. C. §2254. See ante, at 6–7; see also Williams, 529
U. S., at 410 (“[A]n unreasonable application of federal law
is different from an incorrect application of federal law”).
——————
auspicious setting for someone about to waive very valuable constitu
tional rights.” Van Patten v. Deppisch, 434 F. 3d 1038, 1042–1043 (CA7
2006).