Burdine v. Johnson

Revised August 29, 2001

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 99-21034
__________________

CALVIN JEROLD BURDINE,

Petitioner-Appellee,

versus

GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,

Respondent-Appellant.

______________________________________________

Appeal from the United States District Court for the
Southern District of Texas
______________________________________________
August 13, 2001

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
PARKER, and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

In this case we consider whether the district court properly

granted a Petition for Writ of Habeas Corpus filed by Calvin Jerold

Burdine based on state habeas court findings that Burdine’s court-

appointed attorney slept repeatedly throughout the guilt-innocence

phase of his 1984 capital murder trial. The district court

concluded “sleeping counsel is equivalent to no counsel at all” and
granted relief pursuant to 28 U.S.C. § 2254. A divided panel of

this Court reversed, holding that (1) the district court’s

presumption of prejudice for purposes of ineffective assistance

constituted a new rule of law from which Burdine could not benefit

under Teague’s nonretroactivity doctrine, and (2) the circumstances

of Burdine’s representation did not require a presumption of

prejudice to ensure the fairness of Burdine’s capital murder trial.

See Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).

As an en banc court, we AFFIRM the judgment of the district

court.1 The Supreme Court has long recognized that “a trial is

unfair if the accused is denied counsel at a critical stage of his

trial.” United States v. Cronic, 466 U.S. 648, 659 (1984). When

a state court finds on the basis of credible evidence that defense

counsel repeatedly slept as evidence was being introduced against

a defendant, that defendant has been denied counsel at a critical

stage of his trial. In such circumstances, the Supreme Court’s

Sixth Amendment jurisprudence compels the presumption that

counsel’s unconsciousness prejudiced the defendant.

I.

In January 1984, after a trial that included 12 hours and 51

minutes of total time before the jury over a period of six days, a

Harris County, Texas jury convicted petitioner Burdine of capital

1
By granting Burdine’s motion for rehearing en banc, the
Court vacated the panel opinion. See 5th Cir. R. 41.3; Leffall v.
Dallas Indep. Sch. Dist., 28 F.3d 521, 529 n. 2 (5th Cir.1994).

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murder in connection with the death of W.T. “Dub” Wise. Wise was

killed in April 1983 during the course of a robbery committed by

Douglas McCreight and Burdine. After the jury affirmatively

answered the two special issues, the state trial court assessed

punishment as death by legal injection in accordance with Texas

law. See Tex. Penal Code Ann. § 19.03(a)(2). The Texas Court of

Criminal Appeals affirmed Burdine’s conviction and sentence on

direct appeal. See Burdine v. Texas, 719 S.W.2d 309 (Tex. Crim.

App. 1986). Throughout his trial and direct appeal, Burdine’s

court-appointed counsel was Joe F. Cannon of Houston.

Burdine’s initial state application for a writ of habeas

corpus was denied on June 29, 1994. Burdine filed a second

application in December 1994. In relation to that application, the

state habeas court conducted an evidentiary hearing during which

Burdine called eight witnesses, including three jurors from the

capital murder trial and the clerk of the court in which the trial

was held. These four neutral witnesses, which the state habeas

court found highly credible, testified that Cannon repeatedly dozed

or slept as the State questioned witnesses and presented evidence

supporting its case against Burdine.

Daniel Strickland, the foreman of the jury, recalled seeing

Cannon doze or nod off between two and five times while the

prosecuting attorney questioned witnesses. Myra Davis remembered

being struck by the spectacle of Cannon’s sleeping on the second

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day of trial, the same day that trial judge Joseph Guarino had

chastised her for tardiness. According to Davis, Cannon “would nod

his head down on his chest” with his eyes closed during the

questioning of witnesses. “I was thinking to myself, you know look

at him and [Judge Guarino] calls me out [for tardiness] in front of

all these people, . . . and look at what that man is doing.” Like

Davis, Craig Engelhardt related that Cannon “would nod his head

down, bob it, with eyes closed during all this.” Engelhardt

recalled Cannon sleeping as many as ten times during the trial, at

one point for “a good probably at least 10 minutes” as the

prosecution questioned a witness.

The testimony of Rose Berry, the deputy clerk assigned to the

trial court that conducted Burdine’s trial, confirmed the jurors’

recollections. Berry recalled “lots of incidents” of Cannon

sleeping during the trial. Though Berry could not specify a

proportion of the trial in which Cannon slept, she did “know that

he fell asleep and that he was asleep for long periods of time

during the questioning of witnesses.” According to the state

habeas court, Berry was “the most compelling witness” in the

proceeding not only because of her neutrality, but also because she

was not required to pay attention to witnesses or the prosecutor

and thus had a better opportunity to observe Cannon’s conduct.

Other witnesses at the hearing, including Judge Joseph

Guarino, prosecutor Ned Morris, and Carolyn Bonnin, a juror,

testified that they had not noticed Cannon asleep during the trial.

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The prosecutor’s testimony was challenged by James Pillow, the

court coordinator of the trial court at the time of Burdine’s

trial. Pillow recalled having a conversation with the prosecutor,

in which the prosecutor questioned Cannon’s competency to represent

capital defendants and suggested that Cannon not be appointed

counsel in future capital cases. Neither the prosecutor nor Judge

Guarino recalled ever discussing this issue, but Pillow noted that

Cannon was not appointed by Judge Guarino to represent capital

defendants after Burdine’s trial. Cannon himself testified he had

a “habit” of closing his eyes and tilting his head forward while

concentrating, but that he never slept during Burdine's trial. The

state habeas court pointed out the inconsistency between Cannon's

testimony and the descriptions of the four neutral witnesses that

saw Cannon's head bobbing. Moreover, Cannon’s testimony as to his

concentration habit was impeached by Philip Scardino, an attorney

who worked with Cannon on a different capital case. While Scardino

did not recall Cannon concentrating with his eyes closed, he did

observe Cannon dozing during the voir dire of witnesses.

On April 3, 1995, the state habeas court entered comprehensive

findings of fact and conclusions of law. After detailing the

evidence presented during the evidentiary hearing, the court

entered “a finding that defense counsel dozed and actually fell

asleep during portions of [Burdine’s] trial on the merits, in

particular the guilt-innocence phase when the State’s solo

prosecutor, was questioning witnesses and presenting evidence.”

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Based on evidence that “defense counsel repeatedly dozed and/or

actually slept during substantial portions of [Burdine’s] capital

murder trial so that defense counsel was, in effect, absent[,]” the

habeas court concluded that a showing of prejudice in accordance

with Strickland v. Washington, 466 U.S. 668, 104 S.Ct 2052 (1984),

was not required.2 Accordingly, the court recommended that habeas

relief be granted on Burdine’s claim of ineffective assistance of

counsel. In a one-page, unsigned opinion, the Texas Court of

Criminal Appeals agreed that “the trial court’s findings of fact

[regarding the sleeping of trial counsel] are supported by the

record.” The court nevertheless concluded that Burdine was not

entitled to relief because “he failed to discharge his burden of

proof under Strickland v. Washington, 446 [sic; 466] U.S. 669

(1984).” Ex Parte Burdine, Writ No. 16,725-06 (Tex. Crim. App.

April 6, 1995).

Burdine then filed an application for a writ of habeas corpus

in the federal district court for the Southern District of Texas

pursuant to 28 U.S.C. § 2254. That court determined, on the basis

of the factual findings made by the state habeas court and accepted

by the Court of Criminal Appeals, that Cannon’s unconsciousness

during Burdine’s capital murder trial amounted to constructive

2
Though the state habeas court used slightly different
language to describe its factual finding at various points in its
opinion, each variation reflects that Cannon slept on multiple
occasions during the guilt-innocence phase of Burdine’s trial.

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denial of counsel for substantial periods of that trial. See

Burdine v. Johnson, 66 F.Supp.2d 854, 866 (S.D. Tex. 1999).

Consequently, the district court determined that prejudice should

be presumed in accordance with the Supreme Court’s analysis in

Strickland and United States v. Cronic, 466 U.S. 648, 104 S.Ct.

2039 (1984). See id. The State now appeals from this

determination.

II.

This federal habeas proceeding turns on the effect of state

court findings that counsel repeatedly 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.” Although the Texas Court of

Criminal Appeals rejected Burdine’s habeas application, it found

that the record supported the habeas court’s findings of fact. In

this appeal, the State concedes that we are bound by the habeas

court’s findings of fact. Specifically, the State “does not

dispute that [counsel] dozed and actually fell asleep

intermittently during Burdine’s capital murder trial.” The State

maintains that habeas relief is nevertheless inappropriate for two

reasons: (1) the district court’s presumption of prejudice on the

facts of this case amounts to a “new rule” that Teague v. Lane, 489

U.S. 288, 109 S.Ct. 1060 (1989), bars Burdine from raising in this

collateral proceeding, and (2) the facts of Burdine’s case do not

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warrant a presumption of prejudice because Burdine’s counsel slept

during indeterminate periods of what otherwise amounted to an

adversarial trial.

The State’s arguments fail to address the fundamental

unfairness in Burdine’s capital murder trial created by the

consistent unconsciousness of his counsel. 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 (1932). Moreover, both the Supreme Court

and this Court have recognized that the absence of counsel at

critical stages of a defendant’s trial undermines the fairness of

the proceeding and therefore requires a presumption that the

defendant was prejudiced by such deficiency. See United States v.

Cronic, 466 U.S. 648, 659 (1984); United States v. Russell, 205

F.3d 768, 770-71 (5th Cir. 2000). Applying this longstanding

principle, we conclude that a defendant’s Sixth Amendment right to

counsel is violated when that defendant’s counsel is repeatedly

unconscious through not insubstantial portions of the defendant’s

capital murder trial. Under such circumstances, Cronic requires

that we presume that the Sixth Amendment violation prejudiced the

defendant.

A. Burdine Does Not Seek the Benefit of a “New Rule”

The State first argues that Burdine’s claim creates a new rule

of law barred by the non-retroactivity principle of Teague. When

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applying Teague to determine whether Burdine is eligible to habeas

relief we follow three steps: (1) we determine when Burdine’s

conviction and sentence became final, (2) we “survey the legal

landscape as it then existed to determine whether a state court

considering [Burdine]’s claim at the time his conviction became

final would have felt compelled by existing precedent to conclude

that the rule he seeks was required by the Constitution[,]” and (3)

if Burdine seeks the benefit of a new rule, we must decide whether

the rule falls within one of the narrow exceptions to the non-

retroactivity principle. Caspari v. Bohlen, 510 U.S. 383, 390, 114

S.Ct. 948, 953 (1994); see also Fisher v. Texas, 169 F.3d 295, 305

(5th Cir. 1999). Whether Teague’s non-retroactivity rule precludes

Burdine from benefitting from the presumption of prejudice he

asserts is a question of law, we therefore engage in this three-

part analysis de novo. See United States v. Shunk, 113 F.3d 31, 34

(5th Cir. 1997).

All parties agree that Burdine’s conviction became final in

1987, when the Supreme Court denied certiorari. See Caspari, 510

U.S. at 390, 114 S.Ct. at 953. Thus, we begin our analysis with

the second issue: whether a state court in 1987 would have felt

compelled by Supreme Court precedent to conclude that the Sixth

Amendment required a presumption of prejudice when a defendant’s

counsel slept repeatedly during the defendant’s capital murder

trial as evidence was being presented by the State. Because

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application of Sixth Amendment principles firmly established by

1987 compel such a presumption of prejudice on the facts of this

case, we conclude that the rule Burdine seeks to benefit from is

not new, and hence not barred by Teague.

In Teague, a plurality of the Supreme Court espoused Justice

Harlan’s view of retroactivity that a new rule of law would not be

applied on collateral review to cases that became final prior to

the announcement of the new rule. Teague, 489 U.S. at 310, 109

S.Ct. at 1075. Since Teague, the Court has clarified that this

principle of non-retroactivity “serves to ensure that gradual

developments in the law over which reasonable jurists may disagree

are not later used to upset the finality of state convictions valid

when entered.” Sawyer v. Smith, 110 S.Ct. 2822, 2828 (1990).

Moreover, the rule reflects the limited purpose of federal habeas

corpus “to ensure that state convictions comply with the federal

law in existence at the time the conviction became final, and not

provide a mechanism for the continuing reexamination of final

judgments based upon later emerging legal doctrine.” Id.

Applying the non-retroactivity principle in a way that

balances the need for finality of convictions against the need to

enforce minimal constitutional protections has proven challenging.

Even in Teague, the plurality opinion acknowledged that the task of

determining whether a case announces a new rule is often difficult.

For that reason, the plurality expressly did not “attempt to define

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the spectrum of what may or may not constitute a new rule” for

purposes of retroactivity. Teague, 489 U.S. at 301, 109 S.Ct. at

1070; see also Mackey v. United States, 401 U.S. 667, 695 (Harlan,

J., concurring in judgments and dissenting in part) (recognizing

“the inevitable difficulties that will arise in attempting to

determine whether a particular decision has really announced a

“new” rule at all or whether it has simply applied a well-

established constitutional principle to govern a case which is

closely analogous to those which have been previously considered in

the prior case law.”). The Teague plurality did, however, offer

the following general guidelines:

“[A] case announces a new rule when it breaks new ground
or imposes a heretofore new obligation on the States or
the Federal Government. To put it differently, a case
announces a new rule if the result was not dictated by
precedent existing at the time the petitioner’s
conviction became final.”

Id. (emphasis in original). A majority of the Court employed these

guidelines shortly after Teague in Penry v. Lynaugh, 492 U.S. 316,

109 S.Ct. 2934 (1989). Indeed, only in Penry did a majority of the

Court adopt Teague’s non-retroactivity doctrine. See id. Thus,

the analysis in Penry is instructive with respect to the

distinction between a new rule under Teague and an application of

established principles to a case that is analogous to prior

precedent.

Penry claimed that his Eighth Amendment rights were violated

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because the jury in his capital murder trial was unable to fully

consider and give effect to mitigating evidence of his mental

retardation and childhood abuse when answering Texas’ three

statutory special issues at sentencing. Penry did not facially

challenge the Texas death penalty statute. 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 State argued that Penry’s asserted rule

amounted to an extension of established principles and consequently

was barred by Teague. The Court was thus faced with determining

whether the rule asserted by Penry was an application of

established principles or a new rule of law.

Prior to 1986, when Penry’s conviction and sentence became

final, the Supreme Court had established that “in capital cases the

fundamental respect for humanity underlying the Eighth Amendment

requires consideration of the character and record of the

individual offender and the circumstances of the particular offense

as a constitutionally indispensable part of the process of

inflicting the penalty of death.” See Penry, 492 U.S. at 316, 109

S.Ct. at 2945 (quoting Woodson v. North Carolina, 428 U.S. 280,

304, 96 S.Ct. 2978, 2991 (1976)). The Court had stressed this

fundamental principle in upholding Texas’ capital punishment

statute against a facial Eighth Amendment challenge in Jurek v.

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Texas, 428 U.S. 262, 96 S.Ct. 2950 (1976). In Jurek, the Court

concluded that Texas’ sentencing scheme satisfied the Eighth

Amendment provided that sentencing juries were allowed to consider

any mitigating circumstances relevant to a specific case. Jurek,

428 U.S. at 272, 96 S.Ct. at 2956. Supreme Court decisions

subsequent to Jurek and Woodson, but prior to Penry’s conviction

becoming final, reaffirmed the need for an individualized

assessment of the appropriateness of the death penalty under the

Eighth Amendment. See Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954

(1978); Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869 (1982)

(both concluding that a sentencer cannot be precluded from

considering and giving effect to relevant mitigating circumstances

when determining the appropriateness of the death penalty in a

particular case). At the same time, however, no Supreme Court

decision prior to Penry had commanded courts to instruct juries how

to consider specific mitigating evidence in a particular case.

Instead, the case law established fundamental Eighth Amendment

principles for application in analogous cases.

The Supreme Court concluded that despite the absence of a

specific holding requiring the instruction sought by Penry, the

rule Penry sought to benefit from was dictated by the Eighth

Amendment principles espoused and enforced in the Court’s prior

cases. According to the Court, it was firmly established at the

time of Penry’s conviction that a sentencer in Texas had to

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consider any mitigating evidence specific to the circumstances of

Penry and his crime. Penry, 492 U.S. at 317, 109 S.Ct at 2946.

The rule that Penry sought - a requirement that the jury be

instructed specifically what mitigating evidence it should consider

and how it should consider that evidence when answering Texas’

special issues - was not “new” for the purposes of Teague because

it represented a specific application of general Eighth Amendment

principles outlined in prior analogous cases. Though Penry’s claim

for relief did require the State to issue specific instructions

that it previously had not issued, the rule which controlled

Penry’s case was nevertheless not new. Moreover, the rule did not

impose a new obligation on Texas, it simply required that Texas

fulfill its obligation, expressed in Jurek, to ensure “that the

special issues [of the Texas capital punishment statute] 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.

Penry’s recognition that the application of established

general procedural principles in an analogous context is not a new

rule barred by Teague remains the law today. See Bousley v. United

States, 523 U.S. 614, 620, 118 S.Ct. 1604, 1610 (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

“[t]here is surely nothing new about this principle . . . .”); see

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also Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 2497 (1992)

(O’Connor, J., concurring) (“If 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.”). Just as Penry

sought an application of Eighth Amendment principles well-

established at the time his conviction became final, Burdine now

seeks the application of Sixth Amendment principles that were well-

established at the time that his conviction became final. Just as

Teague did not prevent Penry from receiving the benefit of

established Eighth Amendment protections, it does not prevent

Burdine from receiving the benefit of established Sixth Amendment

protections.

At the time that Burdine’s conviction became final in 1987, it

was well established in the legal landscape that defendants have

the Sixth Amendment right to effective assistance of counsel at

every critical stage of the proceedings against them. See Powell,

287 U.S. at 69, 53 S.Ct. at 64.3 The purpose of this Sixth

3
The State does not argue that Burdine seeks to avail himself
of a rule announced after his conviction became final in 1987.
Instead, the State maintains that the result Burdine seeks is not
compelled or dictated by Supreme Court precedent even today. Since
the State does not suggest that Sixth Amendment precedent has
changed or developed significantly since 1987, we do not expend
considerable energy distinguishing the law as it was in 1987 and
the law as it is today. Suffice it to say that the State does not
allege any noteworthy developments in Supreme Court doctrine, and

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Amendment guarantee was and “is to ensure that a defendant has the

assistance necessary to justify reliance on the outcome of the

proceeding.” Strickland v. Washington, 466 U.S. 668, 689, 104

S.Ct. 2052, 2067 (1984); Cronic, 466 U.S. at 658, 104 S.Ct at 2046

(“[T]he right to the effective assistance of counsel is recognized

not for its own sake, but because of the effect it has on the

ability of the accused to receive a fair trial”). Because the

Sixth Amendment serves solely to ensure a fair and reliable trial,

“any deficiencies in counsel’s performance must be prejudicial to

the defense in order to constitute ineffective assistance under the

Constitution. Id. In Cronic, however, the Court recognized that

some egregious circumstances “are so likely to prejudice the

accused that the cost of litigating their effect in a particular

trial is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct at 2046.

Both in Cronic and in Strickland, the Supreme Court recognized that

the absence or denial of counsel at a critical stage of a criminal

proceeding represents one of the egregious circumstances that

requires the presumption of prejudice. See Cronic, 466 U.S. at

659, 104 S.Ct. 2047; Strickland, 466 U.S. at 692, 104 S.Ct. at

2067.4 Burdine seeks an application of this rule to the facts of

we have been unable to discern any independently.
4
In addition to the absence of counsel during critical phases
of trial, Cronic suggested three other circumstances in which a
presumption of prejudice would be required to ensure the fairness
of a proceeding: (1) “if counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing;” (2) “when

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his case. He argues that he was repeatedly without counsel

throughout the most critical part of his capital murder trial: the

guilt-innocence phase. Because he was without counsel, Burdine

argues that we should presume prejudice in accordance with Cronic

and Strickland. We agree with Burdine that the rule he seeks to

benefit from is neither new, nor should it have been surprising to

the State of Texas at the time of Burdine’s conviction in 1987.

The State concedes that Cronic calls for the presumption of

prejudice when, during a critical stage of trial, counsel is either

(1) totally absent, or (2) present but prevented from providing

effective assistance. See Cronic 466 U.S. at 659 n.25, 104 S.Ct.

2047 n.25. The State argues that applying this rule to the facts

of Burdine’s case expands Cronic’s holding and therefore creates a

“new rule” barred by Teague. Specifically, the State maintains

that (1) Cronic calls for a presumption of prejudice relating to

absence of counsel only when state action causes such absence, and

(2) any absence by Burdine’s attorney was not proven to have taken

place during a “critical stage” of Burdine’s trial, as such term

was understood by the Court in Cronic. We disagree with the

State’s excessively narrow reading of Cronic.

although counsel is available during trial, 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;”
and (3) “when counsel labors under an actual conflict of interest.”
Cronic, 466 U.S. at 659-60, 662 n.31, 104 S.Ct. at 2047, 2048 n.31.

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 Initially, we note that the State’s proposed state action

requirement does not flow from the language of Cronic. Cronic

recognized that 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. In a footnote

following this sentence, the Court explained that presumption of

prejudice was appropriate “when counsel was either totally absent,

or prevented from assisting the accused during a critical stage of

the proceeding.” Though the term “prevented from assisting the

accused” suggests the existence of some indeterminate external

force, no inference of a state action requirement is possible from

the Court’s language discussing the appropriateness of a

presumption when counsel is “totally absent.”5 Later in Cronic the

Court more directly dispelled the State’s proposed state action

requirement when it dismissed the idea that the cause of a Sixth

Amendment deficiency should control whether a presumption of

prejudice was warranted. The Court explained:

“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. We conclude

5
Even where it is possible to infer a role for an external
force, it is by no means clear that this force must be the state,
as opposed to something natural, such as illness.

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that the Sixth Amendment principle animating Cronic’s presumption

of prejudice is the fundamental idea that a defendant must have the

actual assistance of counsel at every critical stage of a criminal

proceeding for the court’s reliance on the fairness of that

proceeding to be justified. The Court in Cronic was not concerned

with the cause of counsel’s absence, but rather the effect of such

absence on the fairness of the criminal proceeding.

Our recent discussion of Cronic in United States v. Russell,

205 F.3d 768 (5th Cir. 2000), supports this interpretation and

rejects the State’s excessively narrow reading. On appeal from the

denial of his section 2255 motion, Russell urged this Court to

presume prejudice under Cronic based on the absence of counsel.

Russell, along with 16 co-defendants, 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 of trial as evidence was being presented against Russell’s co-

conspirators. Though an attorney for one of Russell’s codefendants

represented to the trial court that he had Russell’s permission to

act as counsel during the absence of Russell’s own attorney, we

concluded that it was unclear from the record whether the district

court had accepted counsel’s attempt to represent the petitioner.

Russell, 205 F.3d at 769-71. Despite the absence of a clear waiver

of counsel, the trial court allowed the trial to continue after

instructing the government not to present evidence directly

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relating to Russell while his counsel was absent.

While we refused to adopt a per se rule that the taking of any

evidence at trial in the absence of counsel warrants a presumption

of prejudice, we did recognize Cronic’s emphasis on the need to

have counsel at every critical stage of a trial to ensure its

fairness and reliability. Id. (quoting Cronic, 466 U.S. at 658,

104 S.Ct. at 2047). In characterizing Cronic’s holding, we did not

require a showing that the state was responsible for the absence of

counsel. Instead, we interpreted Cronic as focusing on the overall

fairness of the proceeding, and specifically on whether the absence

of counsel was at a critical stage of the trial. We noted that

while Cronic did not provide substantial guidance with respect to

what parts of a trial are “critical,” the following guidelines

could be distilled:

First, there must be a denial of such
significance that it makes the adversary
process itself unreliable. [Cronic, 466 U.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). Applying these principles to Russell’s case, we concluded

that the adversary process in Russell’s trial was unreliable

because Russell’s counsel was not “present to keep the taint of

conspiracy from spreading to the client.” Id. at 772. On this

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basis, we held that counsel’s absence was at a critical stage and

presumed prejudice.6

As reflected by our discussion in Russell, Cronic presumes

6
The State points to language in Strickland suggesting that
state action is necessary to justify a presumption of prejudice.
See Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. Specifically,
the State relies on the following language:

Actual or constructive denial of the assistance of
counsel altogether is legally presumed to result in
prejudice. So are various kinds of state interference
with counsel's assistance. Prejudice in these
circumstances is so likely that case-by-case inquiry into
prejudice is not worth the cost. Moreover, such
circumstances involve impairments of the Sixth Amendment
right that are easy to identify and, for that reason and
because the prosecution is directly responsible, easy for
the government to prevent.

Id. (citations omitted). The State maintains that the last
sentence assumes state action with respect to any absence of
counsel. Yet, we interpret the sentence to relate only to “various
kinds of state interference with counsel’s assistance.” At any
rate, Strickland certainly does not hold that state action is
required to presume prejudice based on absence of counsel.
Therefore, the language on which the State relies is dicta and does
not undercut the Court’s prior analysis in Cronic.
The State’s reliance on our decision in May v. Collins, 948
F.2d 162 (5th Cir. 1991), is similarly misplaced. In May, the
habeas petitioner did not suggest that his counsel had been absent
during critical portions of the proceeding, but instead argued that
the Texas death penalty scheme so limited his counsel’s tactical
decision making ability as to constitute a constructive denial of
counsel. Id. at 166. Thus, our decision in May was concerned not
with actual absence of counsel, but instead with instances in which
“counsel is prevented from assisting the accused during a critical
stage of the proceeding.” Id. While May limited the principle of
constructive denial of counsel to cases involving a government rule
that “affirmatively forces counsel to make a choice he or she might
not otherwise make in the context of a particular case,” that
limitation has no bearing on allegations that counsel was absent
during critical portions of trial. Id.

-21-
prejudice based on the absence of counsel when such absence

threatens the overall fairness of a trial. While state

responsibility for counsel’s absence may be relevant in examining

the fairness of a trial, state action is not and has never been a

prerequisite for invoking Cronic to presume prejudice. Reading

Cronic to impose such a prerequisite would require shifting the

opinion’s emphasis from the fairness and reliability of criminal

proceedings to the culpability of a state in distorting the

adversarial process. For that reason, we reject the State’s

attempt to cast Burdine’s argument as a “new rule” by imposing a

state action requirement onto Cronic’s principle that Sixth

Amendment prejudice is presumed when a defendant demonstrates the

absence of counsel at a critical stage of his criminal proceeding.

The State also attempts to characterize Burdine’s argument as

a new rule by limiting the meaning of “critical stage” as that term

is used in Cronic and certain cases cited in Cronic. Initially,

the State argues that the Supreme Court intended “the Sixth

Amendment concept of ‘critical stage’” to refer “not to the trial

itself, but rather to phases of a criminal proceeding other than

the trial.” (emphasis in original). We quickly dispense with this

argument. All of the Supreme Court cases that the State cites as

supporting its proposition assume that the presentation of evidence

against a defendant is a critical stage of a criminal proceeding.

See, e.g. Brewer v. Williams, 430 U.S. 387, 398, 97 S.Ct. 1232,

-22-
1239 (1977). The cases cited by the State simply extend the

concept of the trial as a critical stage to other discrete periods;

in so extending the concept, they do not question the fact that the

trial itself remains a critical stage of any criminal proceeding.

Maine v. Moulton, 474 U.S. 169, 170, 106 S.Ct. 477, 484 (1985)

(noting that the Supreme Court has not limited the right to

assistance of counsel to participation at trial, but has not

abrogated that right during the trial itself).

The State next argues that because Burdine cannot demonstrate

precisely when Cannon slept during his trial, he cannot prove that

Cannon slept during critical stages of his criminal proceeding. In

this regard, the State asks more of Burdine than the Supreme Court

or this Court has ever asked of a defendant attempting to show the

absence of counsel during a critical stage of trial. To justify a

particular stage as “critical,” the Court has not required the

defendant to explain how having counsel would have altered the

outcome of his specific case. Rather, the Court has looked to

whether “the substantial rights of a defendant may be affected”

during that type of proceeding. United States v. Taylor, 933 F.2d

307, 312 (5th Cir. 1991) (citing Mempha v. Rhay, 389 U.S. 128, 134,

88 S.Ct. 254, 256 (1967); Gideon v. Wainright, 372 U.S. 335, 342-

43, 88 S.Ct. 792, 795-96 (1963)); see also United States v.

Gouveia, 467 U.S. 180, 189, 104 S.Ct. 2292, 2298 (1984) (suggesting

that a proceeding is critical when the accused is confronted by the

-23-
legal procedural system or the expertise of a state adversary).

Thus, in Russell, this Court was satisfied by Russell’s showing

that evidence was being adduced by the State against his co-

conspirators while Russell’s counsel was absent. See Russell, 205

F.3d at 772. We did not require Russell to demonstrate that the

evidence adduced against his co-defendants did in fact have an

adverse impact on his own fortune or that the presence of his

attorney would have improved his chances of an acquittal.7 Such a

standard would require that the defendant, in effect, prove

prejudice in order to receive a presumption of prejudice. That was

not the standard announced in Cronic. Therefore, to the extent

7
Here, the State 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.” In
Burdine’s case we have a state court 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.” Although we
may not specifically know what evidence was being presented while
counsel was unconscious, we know that it was being presented by the
State against Burdine. In Russell, pursuant to the district
court’s instruction, the government was presenting evidence that
directly related to his co-conspirators, not Russell. We
recognized that evidence introduced against co-conspirators
“inferentially increased the taint of guilt of Russell.” 205 F.3d
at 772. 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. It
would appear a more egregious Sixth Amendment violation to have
counsel unconscious while evidence is presented against his client
than to have counsel physically absent while evidence is presented
against his client’s co-conspirators.

-24-
that the State maintains that application of the term “critical

stage” to the facts of Burdine’s case would constitute a new rule,

we dismiss the State’s argument. Burdine has alleged and the state

court findings support the fact that Burdine’s counsel was

unconscious, and hence absent, repeatedly throughout the guilt-

innocence phase of Burdine’s trial as evidence was being produced

against Burdine. That this stage of Burdine’s trial was “critical”

was well established in 1987 and is well established today.

In sum, we conclude that Burdine seeks the benefit of a rule

well-established at the time that his conviction became final: when

a defendant does not have counsel at every critical stage of a

criminal proceeding, the court must presume that such egregious

deficiency prejudiced the fairness of the trial. Because Burdine

does not seek the benefit of a new rule, we need not discuss the

various exceptions to Teague. Instead, we turn to whether the

merits of Burdine’s case warrant the application of this

longstanding rule.

B. Is Presumption of Prejudice Appropriate in Burdine’s Case?

The State purports to accept the state trial court’s findings

that defense counsel slept during substantial portions of Burdine’s

trial. Nonetheless, the State painstakingly conducts a page-by-

page analysis of the trial record in an apparent attempt to

demonstrate that counsel was awake during significant portions of

-25-
the trial.8 Yet, 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).

The factual findings made during Burdine’s state habeas

proceedings demonstrate that Burdine’s counsel was repeatedly

asleep, and hence unconscious, as witnesses adverse to Burdine were

examined and other evidence against Burdine was introduced. This

unconsciousness extended through a not insubstantial portion of the

12 hour and 51 minute trial. Unconscious counsel equates to no

counsel at all. Unconscious counsel does not analyze, object,

listen or in any way exercise judgment on behalf of a client. As

recognized by the Second Circuit, “the buried assumption in our

8
We 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.

-26-
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).9 When we have no basis for assuming that

counsel exercised judgment on behalf of his client during critical

stages of trial, we have insufficient basis for trusting the

fairness of that trial and consequently must presume prejudice.

The State suggests that because Cannon was physically present

in the courtroom, his dozing constituted a form of performance that

should be subjected to prejudice analysis. The State maintains

that it is impossible to distinguish between sleeping counsel and

other impairments that nevertheless have been subjected to

prejudice analysis. We disagree. An unconscious attorney does

not, indeed cannot, perform at all. This fact distinguishes the

sleeping lawyer from the drunk or drugged one. Even the

intoxicated attorney exercises judgment, though perhaps impaired,

on behalf of his client at all times during a trial. Yet, the

attorney that is unconscious during critical stages of a trial is

simply not capable of exercising judgment. The unconscious

9
The State, citing a March 1998 district court opinion,
suggests that the Second Circuit has backed away from the presumed
prejudice rule it recognized in Tippins. Yet, as recently as May
1998, the Second Circuit has confirmed the rule and rationale
announced in Tippins. See United States v. Morales, 143 F.3d 94,
97 (2d Cir. 1998).

-27-
attorney is in fact no different from an attorney that is

physically absent from trial since both are equally unable to

exercise judgment on behalf of their clients. Such absence of

counsel at a critical stage of a proceeding makes the adversary

process unreliable, and thus a presumption of prejudice is

warranted pursuant to Cronic.

As in Russell, we decline to adopt a per se rule that any

dozing by defense counsel during trial merits a presumption of

prejudice. Our holding, that the repeated unconsciousness of

Burdine’s counsel through not insubstantial portions of the

critical guilt-innocence phase of Burdine’s capital murder trial

warrants a presumption of prejudice, is limited to the egregious

facts found by the state habeas court in this case.10

10
Based on an extrajudicial statement made by Burdine’s
habeas counsel to a news reporter and the fact that Burdine did not
testify during the state court habeas proceedings, the dissent has
constructed a circuitous chain of inferences culminating in the
negative inference that, as a matter of law, Burdine’s counsel
slept only during unimportant stages of Burdine’s capital murder
trial. According to the dissent, this inference alone would defeat
Burdine’s claim to a presumption of prejudice under Cronic. But
the links necessary to support the dissent’s chain of mandatory
inferences are wholly lacking. And even if we were to assume that
the state habeas court could and would have drawn the negative
inference proposed by the dissent with respect to the timing of
Cannon’s slumber, such analysis would only be relevant to the
State’s proposed approach to the application of Cronic, which
effectively incorporates the Strickland analysis. The flaws in
this approach have been discussed previously. Accordingly, we do
not further dwell on the dissent’s reliance on Burdine’s habeas
counsel’s extrajudicial statements to deprive Burdine of the
presumption of prejudice he seeks based on the absence of his trial
counsel.

-28-
 III.

Based on the state court’s findings that have been accepted by

all as presumptively correct, we affirm the district court’s grant

of federal habeas corpus relief and vacate Burdine’s capital murder

conviction. The State is free to retry Burdine for capital

murder.11

AFFIRMED.

11
Chief Judge Carolyn Dineen King and Judges Patrick E.
Higginbotham, W. Eugene Davis, Jacques L. Wiener, Jr., Harold R.
DeMoss, Jr., Carl E. Stewart, Robert M. Parker, and James L. Dennis
join in this opinion for the court.

-29-
PATRICK E. HIGGINBOTHAM, Circuit Judge, joined by Chief Judge

CAROLYN DINEEN KING, W. EUGENE DAVIS, and JACQUES L. WIENER,

Circuit Judges, concurring:

I concur fully in the excellent opinion of the Court, but

write separately to explain my preferred path. As for the merits

of Burdine’s claim, he had no lawyer for not insignificant amounts

of time as the government presented its case. This is surely a

denial of the constitutional right to counsel. The more difficult

issue is the threshold Teague question of whether this court has

the power to grant the relief Burdine requests on habeas review.

I

Teague v. Lane12 announced that a federal court reviewing a

habeas petition cannot apply a “new rule” of law in granting relief

to the prisoner.13 In other words, a federal habeas petitioner

cannot rely on a rule of federal constitutional law that did not

exist at the time his conviction became final. The rule of Teague

is no legal technicality. Rather, it is a recognition of the

important, but sensitive, role of habeas corpus in our federal

system. Teague is an integral component of the structure by which

constitutional questions arising out of state criminal convictions

are reviewed by federal courts.

12
489 U.S. 288 (1989).
13
See id. at 310.
 Originating in the Habeas Corpus Act of 1867, in tandem with

the Reconstruction Amendments, the modern writ of habeas corpus has

operated as a vital safeguard of the federal constitutional rights

of persons convicted in state courts.14 It has a history bound up

in the expansion of federal supervision over the States and the

genesis of modern civil rights, and in particular the movement

toward racial equality. Habeas corpus originally served only to

ensure the release of persons imprisoned without legal process, but

its reach expanded slowly until the landmark decision of Brown v.

Allen.15 Only then in 1953 did federal habeas afford relief from

a state conviction based on constitutional error.

In practical effect, Brown replaced direct review in the

Supreme Court of state convictions by enlisting the lower federal

courts in the task of reviewing claims of constitutional

deprivation ensuing from state criminal convictions. In the same

stroke, Brown expanded the availability to state prisoners of a

remedy for constitutional violations suffered during their

prosecution. This expansion of the writ, however, threatened the

finality of criminal convictions. Unlike appellate review, habeas

review was not bound by time limits,16 and changes in the law could

render convictions that were valid when decided invalid under

14
See Fay v. Noia, 372 U.S. 391, 415 (1963).
15
344 U.S. 443 (1953).
16
This changed, of course, with the enactment of the AEDPA in
1996. See 28 U.S.C. § 2244(d)(1).

-31-
current law. In such cases, no longer would the Reconstruction-era

concern with States flouting federal law be relevant—instead,

state-court convictions that complied with federal law could be

challenged years later based on developments in federal law that

the state courts could not have anticipated.

Following Brown, the Supreme Court struggled with the problem

of habeas courts applying recent federal decisions to old

convictions. It first attempted to give only prospective effect to

its newly found constitutional rights,17 an effort that drew sharp

criticism.18 Urged on by Justice Harlan, the Court finally

abandoned the effort at prospective effect19 and turned to the scope

of the habeas remedy in Teague.20 By forbidding a federal court

from applying legal rules that did not exist at the time the

prisoner’s conviction became final, Teague allows federal courts to

provide review of state-court convictions, in a fashion akin to

17
See Linkletter v. Walker, 381 U.S. 618, 628 (1965) (“[I]n
appropriate cases the Court may in the interest of justice make [a]
rule prospective.”); see also Johnson v. New Jersey, 384 U.S. 719,
732 (1966) (applying Miranda decision only to trials commenced
after Miranda); Stovall v. Denno, 388 U.S. 293, 300 (1967) (“[N]o
distinction is justified between convictions now final . . . and
convictions at various stages of trial and direct review.”).
18
Paul J. Mishkin, Foreward: The High Court, The Great Writ,
and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965).
19
See Griffith v. Kentucky, 479 U.S. 314, 328 (1987) (holding
that “a new rule for the conduct of criminal prosecutions is to be
applied retroactively to all cases, state or federal, pending on
direct review or not yet final”).
20
See Teague, 489 U.S. at 304-05.

-32-
appellate review, without interfering with convictions in state

courts that acted in compliance with federal law. So it is that

Teague is a rich and powerful discipline for the wielding of

federal power. More to the point, it is not an equitable doctrine

relaxing or drawing taut for cases perceived as deserving of

adjustment—in either direction. At the least the doctrine has

matured to this relative fixity.

II

The Teague principle, though easy to state, can pose difficult

questions in its application. The majority opinion relies

primarily on Penry v. Lynaugh,21 properly so. But the trail of

cases since Penry has left it near the outer limits of the Court’s

willingness to conclude that a proposed rule is not a new rule.22

For me, the import of Penry is better understood in light of Sawyer

v. Butler,23 a case more representative of the Teague jurisprudence

since Penry. In Sawyer, this court en banc addressed the claim of

a habeas petitioner that the prosecutor at his trial violated the

rule announced in Caldwell v. Mississippi,24 which had been decided

by the Supreme Court after Sawyer’s conviction had become final.

21
492 U.S. 302 (1989).
22
See also id. at 351-53 (Scalia, J., dissenting).
23
881 F.2d 1273 (5th Cir. 1989) (en banc), aff’d sub nom.
Sawyer v. Smith, 497 U.S. 227 (1990).
24
472 U.S. 320 (1985).

-33-
Caldwell had held that a prosecutor’s statements to the sentencing

jury in a capital case that diminish the jury’s sense of

responsibility in its sentencing role require reversal of the

sentence of death.25 We ruled that Caldwell announced a new rule,

one that did not exist at the time Sawyer’s conviction became

final.26 Thus, our court was barred from applying Caldwell to

Sawyer’s case.

In concluding that Caldwell announced a new rule, we pointed

to two salient facts: First, Caldwell was the first case to

conclude that the Eighth Amendment provided the basis for

overturning a death sentence because of prosecutorial statements.27

Second, Caldwell eliminated the requirement present in older due

process cases that the defendant must show that the prosecutor’s

statements rendered the trial fundamentally unfair.28 Instead,

Caldwell created a presumption of fundamental unfairness that did

not exist before. Thus, Caldwell lowered the threshold for finding

reversible error.29 Sawyer stands for the crucial principle that

25
Id. at 328-29.
26
See Sawyer, 881 F.2d at 1291.
27
See Sawyer, 881 F.2d at 1290; see also Caldwell, 472 U.S.
at 328-29, 340.
28
See Sawyer, 881 F.2d at 1284, 1291; see also Caldwell, 472
U.S. at 340.
29
See Sawyer, 881 F.2d at 1291 (“We have little difficulty in
concluding that . . . Caldwell’s greatly heightened intolerance of
misleading jury argument is a new rule within the meaning of

-34-
a rule is a new rule when its articulation changes the elements or

the burdens of proof a prisoner must satisfy to prove a

constitutional violation.

Sawyer also explained Penry. We observed that, at base,

Penry was not about whether a new rule or an old rule applied;

instead, “Penry involved the consistent application of an

established constitutional rule to, in essence, changes in the

facts.”30 This distinction between cases presenting new rules and

cases presenting new facts is central to the functioning of Teague.

State courts cannot and need not divine the future of federal

constitutional law; they need only follow the rules extant at the

time of the defendant’s conviction and appeal. Thus, Teague

prohibits federal courts from judging state-court convictions

against standards developed after those convictions became final.

On the other hand, every court—state or federal—has the duty to

faithfully apply legal rules to the distinct facts of each case.

Teague does not bar a federal court from reviewing the application

of an old rule to new facts in state court; as we explained in

Sawyer, Penry said as much.31

Teague.”).
30
Id. at 1288.
31
By analogy, federal courts routinely entertain the
application of established law to different facts in reviewing the
constitutionality of searches and seizures of evidence admitted in
federal criminal proceedings. If Teague were an issue, no one
would seriously contend that such cases involve new rules, even

-35-
 Since Sawyer, the Supreme Court has further articulated the

approach to law and fact in the Teague analysis:

Teague and our subsequent decisions interpreting it require a

federal court to answer an initial question, and in some cases

a second. First, it must be determined whether the decision

relied upon announced a new rule. If the answer is yes and

neither exception applies, the decision is not available to

the petitioner. If, however, the decision did not announce a

new rule, it is necessary to inquire whether granting the

relief sought would create a new rule because the prior

decision is applied in a novel setting, thereby extending the

precedent.32

I believe this is the appropriate framework for analyzing Burdine’s

claim.

III

Our decision today relies on no new rule. Although the

principal dissent takes issue with this conclusion, the only rule

though law enforcement officers may be entitled to qualified
immunity from civil liability because reasonable jurists could
disagree about the constitutionality of a particular application of
a Fourth Amendment rule. See Anderson v. Creighton, 483 U.S. 635
(1987). The Court has drawn upon Anderson v. Creighton for its
treatment of the level of generality, not its reasonableness in
application of a settled rule. See Sawyer v. Smith, 497 U.S. 227,
236 (1990).
32
Stringer v. Black, 503 U.S. 222, 227-28 (1992).

-36-
being applied is forty years old. The so-called Cronic rule dates

back to the 1961 decision Hamilton v. Alabama.33 In Hamilton, the

Supreme Court held that absence of counsel at an arraignment in

Alabama was per se reversible. The Court concluded that

“[a]rraignment under Alabama law is a critical stage in a criminal

proceeding.”34 Because arraignment was a critical stage of the

proceeding and the prisoner was denied counsel at arraignment, the

Court “[did] not stop to determine whether prejudice resulted,” but

reversed his conviction.35 Thus the Cronic rule—that (1) denial of

counsel at (2) a critical stage of proceedings mandates

reversal36—was established twenty-six years before Burdine’s

conviction became final. Most important, the Court in Hamilton

made clear that determination of what was a “critical stage” rested

upon the facts of each case. It acknowledged that arraignments in

other jurisdictions may not be critical to the defense.37 What

33
368 U.S. 52 (1961).
34
Id. at 53.
35
Id. at 55.
36
See United States v. Cronic, 466 U.S. 648, 659 (1984); see
also Holloway v. Arkansas, 435 U.S. 475, 489 (1978) (“[W]hen a
defendant is deprived of the presence and assistance of his
attorney, either throughout the prosecution or during a critical
stage in, at least, the prosecution of a capital offense, reversal
is automatic.”).
37
The Court noted that in Alabama, a plea of insanity must be
made at the arraignment or forever lost. Hamilton, 368 U.S. at 53.
It acknowledged, however, that the rules vary by jurisdiction, and
what is important is not the category of proceeding in which

-37-
mattered to the Court was that the facts of the case justified the

conclusion that counsel was denied at a critical stage.

Since Hamilton, the Supreme Court has applied the same rule to

different facts. In each case, the Court did not reformulate the

rule, but applied the pre-existing rule to a different set of

facts. In White v. Maryland,38 the Court deemed a preliminary

hearing to be a critical stage. The Court looked to the facts of

the case to determine whether “rights are preserved or lost” and

concluded that even if normally a preliminary hearing is not a

critical stage in Maryland, in this case a guilty plea was

entered.39 Although the defendant later reversed his plea, the

initial plea of guilty was entered into evidence at trial.40 In

other cases, the Supreme Court has found denial of counsel to

require reversal even when the denial affected only a single trial

counsel is denied, but that the facts of the individual case
warrant the conclusion that the stage is “critical.” Id. at 54.
38
373 U.S. 59 (1963).
39
Id. at 60.
40
Id.

-38-
decision,41 a portion of the testimony,42 or closing arguments before

a judge.43

Likewise, the element of “absence of counsel” has not been

sliced to a succession of fine legal rules, but an assessment of

the facts and realities of the individual case. The Supreme Court

has held that the physical presence of counsel does not prevent his

“absence” for purposes of the Cronic rule.44 To the contrary

“absence” means simply that the defendant was without counsel.

What is clear from this line of Supreme Court cases is that

the applicable rule in this case is not new. Absence of counsel at

a critical stage of trial renders the trial unfair and requires

reversal. What is also clear is that what constitutes a “critical

stage of the proceeding” and even “absence of counsel” depends on

an assessment of the facts of each case. Thus, the Teague issue in

this case reduces to whether, in applying an old rule to the facts

of this case, the facts are so “novel” that we in effect do not

41
See Brooks v. Tennessee, 406 U.S. 605, 612-13 (1972) (rule
requiring defendant to testify first denied him “the guiding hand
of counsel” with respect to a “critical element of his defense”).
42
See Ferguson v. Georgia, 365 U.S. 570, 596 (1961) (inability
of counsel to question defendant in court violated right to
counsel).
43
See Herring v. New York, 422 U.S. 853, 858 (1975) (closing
argument is “a basic element” of the criminal trial and denial of
such requires reversal).
44
See Holloway v. Arkansas, 435 U.S. 475, 489-90 (1978).

-39-
apply the rule, but create a new rule with broader scope or greater

bite.45

The facts of this case do not test the boundaries of the

Cronic rule. That sleeping counsel is absent counsel is

elementary. Burdine’s slumbering counsel presents us with a new

factual situation, hopefully rare, but not a difficult question of

the application of law to fact.46 The novelty of this case stems

not from the implausibility of applying the rule to these facts,

but from the stunning image of an attorney sleeping in the

courtroom while his client is on trial for his life. We are not

asked to stretch to conclude that counsel was absent in every

relevant sense.

So, too, there is nothing new about concluding that the facts

of this case demonstrate that the taking of evidence against

Burdine is a critical phase of the trial. No more recently than

1963 did the Supreme Court describe a critical stage of the

45
“If the rule in question is one which of necessity requires
a case-by-case examination of the evidence, then we can tolerate a
number of specific applications without saying that those
applications themselves create a new rule . . . . Where the
beginning point is a rule of this general application, a rule
designed for the specific purpose of evaluating a myriad of factual
contexts, it will be the infrequent case that yields a result so
novel that it forges a new rule, one not dictated by precedent.”
Wright v. West, 505 U.S. 277, 308-09 (1992) (Kennedy, J.,
concurring in the judgment).
46
See Javor v. United States, 724 F.2d 831, 833 (9th Cir.
1984).

-40-
proceedings as a point at which “rights are preserved or lost.”47

Failure to object to the admission of evidence waives any

subsequent assertion of error. A lawyer’s absence during

substantial portions of testimony cripples his ability to cross-

examine the witnesses and impairs his ability to present the

defense case and jury arguments.48

Surely the presentation of the evidence of guilt is a critical

phase. Nor is it an answer that Burdine “freely and voluntarily

confessed to his crime” (and hence that his lawyer slept didn’t

matter).49 This ignores both the record in this case and the

reality that the effort to persuade a jury not to vote for death

often runs, as here, throughout the guilt phase of the trial. The

phrasing of the questions, their sequence and rhythm set tone and

paint a picture. They become the platform for presenting the

penalty case and final argument. The search for the precise

evidence that came in as Burdine’s counsel slept rests upon a view

47
White v. Maryland, 373 U.S. 59, 60 (1963).
48
The Supreme Court has held that the presentation of the
defendant’s testimony and the making of closing arguments are
critical stages of the trial. See Herring v. New York, 422 U.S.
853, 858 (1975) (closing argument); Brooks v. Tennessee, 406 U.S.
605, 612-13 (1972) (timing of defendant’s testimony); Ferguson v.
Georgia, 365 U.S. 570, 596 (1961) (questioning of defendant).
Thus, not only can the presentation of evidence be a critical phase
of trial, but counsel’s absence during the presentation of evidence
prejudices the defense in subsequent critical phases of the trial.
Cf. White v. Maryland, 373 U.S. at 60 (preliminary hearing was
critical stage of the proceedings when guilty plea was made during
hearing that was later entered into evidence against defendant).
49
See Judge Jolly’s dissent, infra at ______.

-41-
of trial dynamics and reality that confounds my forty years in the

courtroom. With respect to my colleagues, that is not the way it

works, and for the same reasons it is not the law. We presume

prejudice because experience tells us that an occurrence presents

both a high probability of prejudice and a difficulty of “proving

it” in any finite sense. The law speaks of presumption not to

supply a missing ingredient, but rather to recognize its inevitable

presence.50 Right to counsel at critical stages is only an example

of this principle. We simply will not put a person on trial for

his life in the absence of counsel.

Indeed, a lawyer asleep in the courtroom is more harmful than

one who is physically absent. A message is sent to the jury when

a defense counsel sleeps, sometimes as long as ten minutes, the

prosecutor continues to present evidence, the judge does nothing

(says he didn’t see it)—all the officers of the court pay it no

mind. This is just a “slow plea”: going through the motions is the

message. That is what happened. It will not do to dance away from

the facts. They were found by the state court and come to this

court unchallenged by the State.

IV

50
See United States v. Cronic, 466 U.S. 648, 658 (1984)
(“There are, however, circumstances that are so likely to prejudice
the accused that the cost of litigating their effect in a
particular case is unjustified.”); Tippins v. Walker, 77 F.3d 682,
687 (2d Cir. 1996) (“Under these circumstances, where the adversary
nature of the proceeding was subject to repeated suspensions, there
is little difference between saying that prejudice will be presumed
and saying that prejudice has been demonstrated.”).

-42-
 The principal dissent relies heavily on a notion introduced by

Butler v. McKellar51 that a habeas court cannot apply a rule if at

the time the prisoner’s conviction became final the application of

the rule was “debatable among reasonable jurists.”52 The dissent

then cites the divided panel opinion in this case and the Texas

courts’ divergent opinions in Burdine’s state habeas case as

evidence that the application of the Cronic rule was “debatable

among reasonable jurists.”53 It is true that Butler implies that

one can count heads to determine whether a rule is new or not.54

It is also true that the Supreme Court has since abandoned this

approach in judging reasonableness.

In Stringer v. Black,55 the Supreme Court rejected the argument

that the prisoner’s requested rule was new because the Fifth

Circuit had held to the contrary before the Supreme Court announced

the rule. The Supreme Court stated, “The purpose of the new rule

doctrine is to validate reasonable interpretations of existing

precedents. Reasonableness, in this as in many other contexts, is

an objective standard, and the ultimate decision whether [the rule]

51
494 U.S. 407 (1990).
52
See infra, at ____.
53
See infra, at _____.
54
See Butler, 494 U.S. at 415 (“That the [rule at issue] was
susceptible to debate among reasonable minds is evidenced further
by the differing positions taken by the judges of the Courts of
Appeals for the Fourth and Seventh Circuits.”).
55
503 U.S. 222 (1992).

-43-
was dictated by precedent is based on an objective reading of the

relevant cases.”56 The Supreme Court tersely concluded that the

decisions of two unanimous panels of the Fifth Circuit had been

unreasonable.57

Cases since Butler have rejected contentions by States that

federal habeas courts should further defer to state rulings of law.

The suggestion in Wright v. West58 that federal courts defer to the

state courts’ application of law was made by a minority of the

Court and expressly rejected by a majority of the Justices to

consider the proposal.59 Two terms ago, a majority of the Supreme

Court reiterated its conviction that a federal court must make an

independent judgment in applying an old rule to a set of facts.60

56
Id. at 237.
57
Id. (“The short answer to the State’s argument is that the
Fifth Circuit made a serious mistake in [its decisions].”).
58
505 U.S. 277, 285-95 (1992) (opinion of Thomas, J.).
59
“Teague did not establish a ‘deferential’ standard of review
of state court determinations of federal law. It did not establish
a standard of review at all. . . . In Teague, we refused to give
state prisoners the retroactive benefit of new rules of law, but we
did not create any deferential standard of review with regard to
old rules.” Id. at 303-04 (O’Connor, J., concurring in the
judgment). See also id. at 307 (Kennedy, J., concurring in the
judgment) (“Teague did not establish a deferential standard of
review of state-court decisions of federal law.”).
60
See Williams v. Taylor, 529 U.S. 362, 382 (2000) (opinion
of Stevens, J.) (“[W]hether or not a rule clearly established at
the time a state court renders its final judgment of conviction is
a question as to which the ‘federal courts must make an independent
evaluation.”); Williams, 529 U.S. at 402 (opinion of O’Connor, J.)
(“If today’s case were governed by the federal habeas statute prior

-44-
 We must make an independent determination of the application

of Cronic to the facts of this case. I am convinced that precedent

dictated the conclusion that Burdine’s counsel was absent during a

critical stage of the trial and that a contrary conclusion would be

unreasonable, viewed objectively.

to Congress’ enactment of AEDPA in 1996, I would agree with Justice
STEVENS that Williams’ petition for habeas relief must be granted
if we, in our independent judgment, were to conclude that his Sixth
Amendment right to effective assistance of counsel was violated.”).
I note that the AEDPA modified this rule. See id. at 409-13
(opinion of the Court). The AEDPA does not apply to this case.
The effective date of the AEDPA was April 24, 1996. Burdine filed
his federal habeas petition in April 1995.

-45-
E. GRADY JOLLY, Circuit Judge, joined by JERRY E. SMITH, Circuit Judge, dissenting:

Because the record in this case makes clear that Burdine is plainly guilty of capital

murder beyond a reasonable doubt; because Burdine voluntarily confessed to his crime;

because, even though Burdine was fully aware that his counsel had slept at points during

the trial, he repeatedly heaped post-trial compliments on his counsel for his performance

at trial and continually has expressed confidence in his counsel after trial; because the

record fairly establishes that Burdine’s counsel actually provided competent representation

throughout the course of the trial; because there is no suggestion in the record that

Burdine suffered any prejudice on account of counsel’s alleged sleeping, that is, there is

no suggestion that the outcome in this case would have been any different on account of

the allegations now made; because Burdine waited eleven years before he ever raised the

“sleeping lawyer” claim; because there is no evidence in the record that shows that

counsel’s sleeping occurred at a critical stage in the trial, and because the now silent

Burdine apparently could have offered testimony on this point but has chosen not to do so;

and finally, because I am led to believe by these facts that the “sleeping lawyer” claim is

in large part a diverting tactic to create the impression of a miscarriage of justice in a case

in which substantial justice has been done, I respectfully dissent from the granting of

habeas relief on the basis of the “sleeping lawyer” claim. I would remand for consideration

of his other claims to determine whether any have such merit to afford Burdine federal

habeas relief.
RHESA HAWKINS BARKSDALE, Circuit Judge, joined by EDITH H. JONES,

JERRY E. SMITH, and EMILIO M. GARZA, Circuit Judges, dissenting:

“Bad facts make bad law.” This is just such a case. The “bad

facts” — the deplorable sleeping by Calvin Jerold Burdine’s court-

appointed trial counsel, Joe Frank Cannon — have, I fear, driven

the majority to make “bad law”. This is vividly demonstrated by

the anomaly of the majority’s stating that, for presumed-prejudice

purposes, the entire guilt phase of a capital murder trial is not

a “critical stage” (one of its bases for maintaining that, in

granting presumed-prejudice, it has not established a “new rule”

for Teague-bar purposes), while, in a special concurrence, four

judges in that majority nevertheless maintain it is such a stage.61

The majority is not alone in its abhorrence at the spectacle

of Cannon sleeping during a capital murder trial; but, our decision

must not be influenced, much less dictated, by this. In focusing

so narrowly and intently on Cannon’s sleeping, the majority has

lost sight of the reasons for the Sixth Amendment’s requiring

effective assistance of counsel in a criminal proceeding:

61
The author of the special concurrence, as well as the three
judges who joined it, also joined the majority opinion. Of course,
having failed to garner a majority, the special concurrence does
not speak for our court. Regrettably, however, for the most part,
it muddies the waters. It is only because it does so that it need
be addressed; it may well cause confusion and uncertainty among the
bench and bar.
adversarial testing of the prosecution’s case and reliability of

the result. Two of the key cases that shaped these contours make

that plain.

The benchmark for judging any claim of
ineffectiveness must be whether counsel’s
conduct so undermined the proper functioning
of the adversarial process that the trial
cannot be relied on as having produced a just
result.

Strickland v. Washington, 466 U.S. 668, 686 (1984) (emphasis

added).

The right to the effective assistance of
counsel is ... the right of the accused to
require the prosecution’s case to survive the
crucible of meaningful adversarial testing.
When a true adversarial criminal trial has
been conducted — even if defense counsel may
have made demonstrable errors — the kind of
testing envisioned by the Sixth Amendment has
occurred.

....

[T]he right to the effective assistance of
counsel is recognized not for its own sake,
but because of the effect it has on the
ability of the accused to receive a fair
trial. Absent some effect of challenged
conduct on the reliability of the trial
process, the Sixth Amendment guarantee is
generally not implicated.

United States v. Cronic, 466 U.S. 648, 656, 658 (1984) (emphasis

added; footnote omitted). This being a capital murder case does

not alter this. See Strickland, 466 U.S. at 686.

The majority only pays lip service to these factors, Maj. Op.

at 15-16; it avoids applying them to this case. For example, it

-48-
does not even mention Burdine’s confession and Cannon’s repeated

efforts to keep it from the jury. Nor does it mention Burdine’s

testimony in which he admitted both robbing the victim and being

present at his murder. The prosecution’s case was more than

tested; the result, more than reliable. Cannon’s sleeping does not

change that.

The extra-judicially, recently revealed evidence withheld by

Burdine concerning his nudging Cannon during trial when he slept is

very relevant to Burdine’s presumed-prejudice-due-to-Cannon’s-

sleeping claim. (This new evidence was confirmed by Burdine’s

counsel at en banc oral argument.) The majority, however, does not

mention it, except, in response to this dissent, summarily stating

in a footnote that, in essence, Burdine’s knowledge at trial about

Cannon’s sleeping, the resulting action Burdine took (and did not

take) at trial and post-judgment, and this evidence-withholding do

not matter. Maj. Op. at 28 n.10. The special concurrence does not

mention the subject. But the withheld evidence colors this entire

appeal; we cannot disregard it. Moreover, this twelfth-hour

revelation transforms this presumed-prejudice claim into one

totally different from that for which our court granted en banc

review. On this basis alone, we should reverse and remand. At the

very least, we should remand for the district court to develop this

evidence, and its implications regarding the presumed-prejudice

claim.

-49-
 In short, this appeal, this presumed-prejudice claim, is just

not as simple, just not as cut-and-dried, as the majority and,

especially, the special concurrence would have it. Our court does

not write on a clean slate; we must deal with long-established

precedent designed to accommodate the strong competing interests at

play when presumed-prejudice is claimed. To resolve this difficult

and emotional claim, we must go back to first principles. I regret

greatly that our court has not done so. I will.

Accordingly, in addition to pointing out the general overall

errors in the majority’s analysis (part I., 5-17), and discussing

the underlying proceedings, including Cannon’s efforts to keep out

Burdine’s confession (part III., 23-38), this dissent goes into the

requisite detail to cover the sub-issues raised by Burdine’s

presumed-prejudice claim:

# Whether Burdine’s evidence-withholding affects, if not
forecloses, his claim (part II., 17-23);

# Whether, on the facts at hand (including the
impossibility of determining when Cannon slept in
conjunction with what was then taking place at trial), to
grant presumed-prejudice is to retroactively apply a
“new” rule, in violation of precedent barring such
procedure (part IV.A.1., 43-73);

# Whether, even if allowing presumed-prejudice for Cannon’s
sleeping is a new rule, it nevertheless meets one of the
exceptions to barring its retroactive application (part
IV.A.2., 73-81); and

# Whether, even if allowing presumed-prejudice for Cannon’s
sleeping is not a new rule, Burdine, on the record at
hand, satisfies the elements for that rule (part IV.B.,
81-102).

I.

-50-
 Before addressing the underlying facts and usual issues

involved for presumed-prejudice vel non, we must address the unique

issues surrounding Burdine’s knowing during trial about Cannon’s

sleeping, but not raising it as an issue until 11 years later, and

even then withholding evidence about it. The subject bears on

Burdine’s presumed-prejudice claim; on the conduct of his habeas

counsel, Robert Lee McGlasson, II, who elected not to present

(withheld) this evidence; and on the integrity of this proceeding

and this court. See part II., infra.

This aside, in reviewing a solemn state judgment, and although

it denies doing so, the majority creates a “new” rule for presumed-

prejudice and applies it retroactively, contrary to binding

precedent. Under this new rule, the requisite prejudice for an

ineffective-assistance claim is to be presumed because of the

“repeated unconsciousness of [Cannon] through not insubstantial

portions of the critical guilt-innocence phase of Burdine’s capital

murder trial”. Maj. Op. at 28. But, the majority seeks to

immediately wipe away the new rule it has just labored mightily to

confect by holding this rule “is limited to the egregious facts

found by the state habeas court”. Id. Truly, this raises result-

driven jurisprudence to a new level.

Under Supreme Court and our precedent, the majority’s “new”

rule cannot be applied retroactively to this habeas claim. But,

even if the rule is not “new”, it cannot be applied to this case

-51-
because, in the light of the state habeas court factual findings

(state-findings), and contrary to the majority’s characterization

of them, Cannon was not “repeatedly unconscious through not

insubstantial portions of the ... trial”. Id. at 8.

Overarching all of this are three actions by the majority

which turn the basis for presumed-prejudice on its head. That

doctrine is designed for instances of deficient attorney-

performance that are so obvious and so easy to identify, and where

resulting prejudice is so likely, that examination of the record

for prejudice vel non is not worth the cost of doing so.

First, the majority allows presumed-prejudice, even though the

claim based on such (in its words) “egregious facts” was not raised

until a second state habeas application, 11 years after the trial.

If these facts were so egregious, the claim would have been more

than obvious to Burdine during trial and, most especially, in the

light of his recent withheld-evidence admission.

Second, the majority does not just allow, it rewards, this

evidence-withholding, about which our en banc court inquired, sua

sponte, at oral argument. This admission is not only cause for

rejecting presumed-prejudice but also, on remand, for requiring an

evidentiary hearing concerning the withheld-evidence and this

possibly improper tactic by Burdine’s habeas counsel.

Third, contrary to the procedure established for the narrow

circumstances and resulting limited instances in which a court is

-52-
to award presumed-prejudice, the majority has had to examine the

record, shepherd the state-findings favorable to its position, turn

a blind eye to those unfavorable (including the withheld-evidence),

and make unwarranted inferences about those facts in order to, with

the greatest effort, shoehorn this case into its new — momentarily

lived — rule.

This is precisely how the presumed-prejudice doctrine is not

supposed to work. In short, what the majority has done with its

new rule flies in the face of the principles underlying both

nonretroactivity for federal habeas concerning state prisoners and

implementation of presumed-prejudice.

The solemn state judgment of Burdine’s guilt is not before us.

Instead, we are reviewing a subsequent, equally solemn state

judgment that he received the assistance of counsel necessary for

a fair trial. The sole issue at hand is whether prejudice

resulting from ineffective-assistance must be proved by Burdine, as

is the usual case, or, instead and as is very rare, is to be

presumed. Presumed-prejudice vel non is a profoundly important

issue; it touches on compelling interests of finality and comity.

It must be decided by applying binding precedent.

Three Supreme Court decisions, two of which were rendered on

the same day and are quoted from earlier, provide the primary

guidance for our review: United States v. Cronic and Strickland v.

Washington, 466 U.S. 648 and 668, respectively (1984); and Teague

-53-
v. Lane, 489 U.S. 288 (1989). First, proving ineffective-

assistance violative of the Sixth Amendment ordinarily requires

showing both that counsel rendered deficient performance, and that

there is a reasonable probability that, but for that deficient

performance, the result of the proceeding would have been

different. Strickland, 466 U.S. at 687, 694. Second, in certain

narrow circumstances (including denial of counsel at a “critical

stage” of the proceeding) where prejudice is so likely that case-

by-case inquiry is not worth the cost, prejudice will be presumed.

Id. at 692; Cronic, 466 U.S. at 658-59. Third, “new” rules of

criminal procedure will not be applied retroactively on collateral

review unless certain narrow exceptions apply; “a case announces a

new rule if the result was not dictated by precedent existing at

the time the defendant’s conviction became final”. Teague, 489

U.S. at 301 (plurality) (emphasis in original). The special

concurrence assists in this respect: by underscoring that

implementing Teague is neither a “legal technicality”, Sp. Con. at

1, nor “an equitable doctrine”, id. at 3.

We are not a state habeas court; we cannot make factual

findings. The key binding/controlling state-finding is that Cannon

dozed and actually fell asleep 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.

-54-
Ex parte Burdine, No. 379,444-B, at 13 (183d Dist. Ct. Harris

County, Tex., 4 April 1995) (emphasis added). Concerning presumed-

prejudice, this is the only state-finding that even approaches

being specific. But, of utmost importance, and contrary to the

majority’s rule ( again, applied only to this case), there is no

state-finding that Cannon was “repeatedly unconscious” during

“substantial” portions of the trial. Likewise, there are no state-

findings as to:

# When Cannon “dozed” as opposed to “slept”;

# How long he slept, individually and collectively;

# How many times he slept;

# How deeply he slept;

# What happened while he slept, including which witness(es)
was(were) testifying or other evidence was being
presented; and

# When the sleeping occurred — which day(s), or whether
during the morning or afternoon.

Moreover, the state habeas trial court did not discredit testimony

by the trial judge and prosecutor that they did not observe Cannon

sleeping. Because Burdine waited 11 years to raise the claim,

memories have, of course, faded, making it impossible to determine

what evidence was being presented while Cannon slept. To make

matters worse, Burdine withheld critical evidence on this point.

In any event, the majority’s rule is based on two factual

premises not found by the state habeas court: (1) Cannon was

“repeatedly unconscious”, (2) for “not insubstantial” portions of

-55-
trial. Maj. Op. at 8, 26. To overcome what should be an

insurmountable obstacle for habeas review, the majority posits

that, although “the state habeas court used slightly different

language” in describing the sleep-episodes, “each variation

reflects that Cannon slept on multiple occasions during the guilt-

innocence phase of Burdine’s trial”. Id. at 6 n.2. But, none of

the various ways in which the state habeas court described Cannon’s

“dozing” and/or “sleeping” justifies the majority’s claim that

those findings “support the fact that Burdine’s counsel was

unconscious, and hence absent, repeatedly throughout the guilt-

innocence phase of Burdine’s trial as evidence was being produced

against Burdine”. Id. at 25.

In a finding separate from the controlling finding quoted

earlier (Cannon “dozed and actually fell asleep during portions of

[Burdine’s] trial”), the state habeas trial court stated it did

“not discredit the testimony of [the prosecutor] and [the trial

judge that they did not see Cannon sleeping] in [its] finding that

[Cannon] repeatedly dozed and or actually slept at trial”. Ex

parte Burdine, No. 379,444-B, at 14. Regarding Cannon’s

inattentiveness, however, we do not know from these findings the

difference between “dozing” and “sleeping”. (The different forms

of inattention usually will be referred to collectively as

“sleep”.)

-56-
 Likewise, the state habeas trial court made no finding that

Cannon’s dozing or sleeping reached the level of

“unconsciousness”.62 Moreover, the testimony of the witnesses at

the state habeas evidentiary hearing — describing Cannon as

“dozing”, “nodding”, “bobbing his head”, and “asleep” — do not

support the majority’s assumption that Cannon was, as a result,

“repeatedly unconscious”. As the Second Circuit recognized in

Tippins v. Walker, 77 F.3d 682, 689 (2d Cir. 1996), “consciousness

and sleep form a continuum, and ... there are states of drowsiness

that come over everyone from time to time during a working day, or

during a trial”. Instead, as discussed in note 2, supra, the

majority, lacking both evidentiary and legal support, has made its

own factual finding that the dozing and/or sleeping “repeatedly”

reached “unconsciousness”. This it cannot do.

Even assuming arguendo Cannon was “unconscious” each time he

slept, the majority does not define “not insubstantial”. Does it

intend for substantiality to be judged by the length of sleep, or

is it to be based on the significance of the evidence being

62
There is no evidence in the record, expert testimony or
otherwise, concerning when a person becomes “unconscious” if or
while sleeping. Nor does the majority define the term. Needless
to say, it has different meanings for different episodes, such as
“unconscious” from a blow to the head as compared with possibly
“unconscious” while in a very deep sleep. Or, does the majority
simply attribute “not aware” to “unconscious”? See BLACK’S LAW
DICTIONARY 1527 (7th ed. 1999) (defining “unconscious” as “[w]ithout
awareness; not conscious”). In any event, there is no evidence on
this point in the record. Nor, obviously, can the majority take
judicial notice of it.

-57-
presented while counsel slept and its impact on the defense? See

id. at 685 (“The word ‘substantial’ ... is unhelpful. It can refer

to the length of time counsel slept, or the proportion of the

proceedings missed, or the significance of those proceedings.”).

In the light of the majority’s stated refusal to adopt a per se

rule that the entire trial is a “critical stage”, and the

impossibility, on this record, of determining when Cannon slept,

the majority apparently has chosen the former — length of sleep-

time. Yet there is no quantitative state-finding upon which to

base the majority’s conclusion that Cannon was “repeatedly

unconscious through not insubstantial portions” of the trial.63

The witnesses’ testimony at the state habeas evidentiary

hearing was not consistent with regard to whether Cannon slept,

much less how many times he did so, when, and for how long. In the

light of those inconsistencies, the lack of a state-finding

63
Cf. United States v. DeSalvo, No. C-96-3707-DLJ, 1998 WL
289300, at *6 (N.D. Cal. 21 Apr. 1998) (assuming counsel fell
asleep three times, counsel did not sleep through “substantial
portion” of trial); Fellman v. Poole, No. C 90-20007 JW, 1993 WL
248693, at *5 (N.D. Cal. 28 June 1993) (counsel who fell asleep
twice did not sleep through “substantial portion” of two-month
trial), aff’d, 33 F.3d 58 (9th Cir. 1994), cert. denied, 514 U.S.
1006 (1995); United States v. Reyes, No. 90 Cr. 584(CSH), 1991 WL
95395, at *4-5 (S.D.N.Y. 30 May 1991) (court observed counsel close
his eyes during afternoon sessions and extensive cross-examinations
by co-counsel, and also observed defendant nudging counsel; but,
“if a ‘substantial portion’ of a trial is defined as more than a
tenth of the time, [counsel] did not sleep through a ‘substantial
portion’ of this trial”).

-58-
quantifying the frequency or length of Cannon’s dozing or sleeping

is quite understandable.64

Is “not insubstantial” the same as “substantial”? Of course,

“substantial” has many uses in the legal context.65 In discussing

whether a stage of a criminal proceeding is “critical”, the

majority states the Supreme Court has considered whether “the

substantial rights of a defendant may be affected”. Maj. Op. at

23. Black’s Law Dictionary defines “substantial right” as “[a]n

essential right that potentially affects the outcome of a lawsuit

and is capable of legal enforcement and protection, as

distinguished from a mere technical or procedural right”. BLACK’S

LAW DICTIONARY 1324 (7th ed. 1999).66 But, in holding that Cannon’s

64
The majority notes that the state habeas court pointed out
the inconsistency at the state habeas evidentiary hearing between
Cannon’s testimony and that of others who observed him at trial
with his head nodded forward and bobbing. Maj. Op. at 5. Cannon
testified: during trial, he might nod his head when thinking; and,
on occasion, he closed his eyes and put his head down when
concentrating. And, the trial judge testified he noticed Cannon
leaning back with his eyes closed. In noting this testimony by the
judge, the state habeas court was pointing out that his description
of what he observed supported finding that he did not see Cannon
sleeping, because he saw Cannon leaning back with his eyes closed,
while others testifying about Cannon’s sleeping saw his head tilted
forward and bobbing. See Ex parte Burdine, No. 379,444-B, at 13-
14. Again, state-findings requisite to allowing presumed-prejudice
are just not in the record. Nor can we construct them.
65
See BLACK’S LAW DICTIONARY 1442-43 (defining, for example,
“substantial-capacity test” (insanity defense); “substantial-
certainty test” (copyright); “substantial-evidence rule”
(administrative law); “substantial-factor test” (tort causation);
“substantial-performance doctrine” (contracts)).
66
See, e.g., FED. R. CRIM. P. 52(a) (“Any error, defect,
irregularity or variance which does not affect substantial rights

-59-
being “repeatedly unconscious for not insubstantial” portions of

the guilt-innocence phase of a capital murder trial warrants

presuming prejudice, the majority does not attempt to determine

whether the evidence presented while the sleeping occurred affected

Burdine’s “substantial rights”. It cannot do so on this record.

Perhaps the majority views “substantiality” as a continuum, in

which there is some middle ground which is neither “substantial”

nor “insubstantial”. In any event, the majority gives no guidance

to federal habeas courts, which may well in the future consider

similar claims, regarding how to determine whether sleeping is “not

insubstantial”, when, as in this case, there is no state-finding of

substantiality (quantitative or qualitative).

Despite the majority’s attempt to limit its rule solely “to

the egregious facts found by the state habeas court”, Maj. Op. at

28, its rule will not be applied just in this case. The majority

can limit the holding to this record; but otherwise, the rule must

be shaped so that it can be applied — as it may well be — in future

cases. This rule, however, will result in uncertainty and

undermine accuracy. For example, how many minutes of sleeping, or

how many nods or head bobs will trigger presumed-prejudice?

shall be disregarded.”); FED. R. CRIM. P. 52(b) (“Plain errors or
defects affecting substantial rights may be noticed although they
were not brought to the attention of the court.”); FED. R. CIV. P.
61 (court “must disregard any error or defect in the proceeding
which does not affect the substantial rights of the parties”); FED.
R. EVID. 103(a) (“[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party
is affected” and party objects or makes offer of proof).

-60-
Moreover, allowing presumed-prejudice under these circumstances

will encourage defendants not to bring observed sleeping by their

counsel to the attention of the court during trial and not to raise

the claim on direct appeal, which undermines the strong interest in

finality recognized in Teague and its progeny. Finally, the rule

imposes a new obligation on the States in our circuit, by requiring

trial judges and prosecutors to closely and unceasingly monitor

defense counsel throughout trial to ensure defense counsel is

awake. If counsel closes his eyes even momentarily, the trial

judge or prosecutor had best stop the trial and inquire, “Are you

awake?” Nothing in Cronic comes close to dictating such a result.

Because, as a federal habeas appellate court, we do not engage

in fact-finding, we cannot do as the majority has done and find

Cannon was “repeatedly unconscious through not insubstantial

portions” of trial. Indeed, the solemn state judgment under review

rejected the state habeas trial court’s recommended conclusion of

law that simply repeated Burdine’s “allegation” that Cannon

“repeatedly dozed and/or actually slept during substantial

portions” of trial. See Ex parte Burdine, No. 16,725-06, at 1, 901

S.W.2d 456 (Tex. Crim. App.), cert. denied, 515 U.S. 1107 (1995);

Ex parte Burdine, No. 379,444-B, at 18-19. In rejecting/disavowing

that conclusion, the Texas Court of Criminal Appeals held: Burdine

must prove actual prejudice under the Strickland two-prong test;

and he failed to do so. Ex parte Burdine, No. 16,725-06, at 1. As

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discussed infra, it may well be that, in citing Strickland, the

Court of Criminal Appeals was citing the portion discussing the

narrow circumstances for presumed-prejudice. In any event, it

rejected the recommended conclusion that Burdine had established

such circumstances. Id.

In sum, the majority has turned its back on the ratio

decidendi for the Supreme Court cases that must inform our

analysis: Teague, decided 12 years ago; and Cronic and Strickland,

decided 17 years ago. Each serves a strong interest. The fact

that this is a capital murder case does not change that. But, the

fact that Burdine waited 11 years to assert the claim, and then

withheld crucial evidence, most certainly should guide our

analysis, because these tactics strike at the very goals Teague was

designed to foster and protect: finality and comity.

Therefore, I must respectfully dissent. I would hold that,

under the circumstances of this case, prejudice must be proved.

Accordingly, I would remand on that and the myriad ineffective

assistance and other issues Burdine raised in his federal habeas

application, which the district court did not address. See notes

18-19, infra. It may well be that, on remand, Burdine could, inter

alia, satisfy the Strickland two-prong test for ineffective

assistance and be accorded a new trial on that basis.

II.

-62-
 Notwithstanding Burdine’s sitting beside Cannon throughout

trial, the record contains no affidavit or testimony by Burdine

regarding Cannon’s sleeping. But, at oral argument before our en

banc court, Burdine’s habeas counsel admitted he withheld evidence

that, at times, Burdine nudged Cannon during trial to awaken him.

For the first time in this lengthy state and federal habeas process

(since 1987), this crucial evidence has come to light. Had it been

timely presented, it could have had a profound impact, certainly on

presumed-prejudice vel non. Perhaps, this evidence would have

easily pinpointed the portions of the trial during which Cannon

slept (such easy identification being an essential element for

presumed-prejudice). At the very least, it would have assisted in

developing the record on that issue.

This sea change for this extremely belated presumed-prejudice

claim began when, on 28 October 2000, in an interview the day after

the panel opinion was rendered, Burdine’s counsel, for the first

time, claimed Burdine kept trying to awaken Cannon during trial.67

67
The portion of the interview concerning Burdine’s supposedly
attempting to awaken Cannon follows:

[Reporter:] In 1983, Calvin Burdine and
a friend drove to a trailer park in a poor
section of Houston, robbed a man and then
killed him. Those facts are not in dispute.
The real controversy took place in the
courtroom. During the trial, Burdine’s court-
appointed lawyer, Joe Cannon, fell asleep; not
once or twice, but repeatedly during the day-
and-a-half trial. Burdine’s current lawyer
... says Burdine kept trying to nudge his

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When asked at en banc oral argument why that crucial evidence had

not been presented in support of Burdine’s claim, his counsel

responded that Burdine was entitled to choose what evidence to

present.

In general, that is true. But, the evidence has been placed

in front of us.68 In effect, through this extra-judicial admission,

attorney awake, to no avail.

[Burdine’s habeas counsel]: And this
happened while the state was presenting its
case[] in chief while they were presenting
evidence testimony. Mr. Cannon would sleep
through some of these witnesses and then be
expected to get up and cross-examine those
witnesses.

Weekend Edition Saturday (National Public Radio broadcast, 28 Oct.
2000) (emphasis added). When asked at en banc oral argument,
Burdine’s habeas counsel stated he had been quoted accurately
regarding “Burdine kept trying to nudge his attorney awake”.

Even more recently, Burdine’s nudging Cannon was more fully
developed by Burdine himself in an interview for television:

[Reporter]: In an interview last summer
[2000], Calvin Burdine told [another reporter]
that he was aware that his lawyer was often
asleep but felt that there was nothing he
could do about it.

Calvin Burdine: And Cannon’d just be leaning
back in his chair. He wouldn’t even be ...
you know ... it’s like he wasn’t paying
attention. And when I would ask him about it,
he’d say, “Well, I heard everything he said,
and I’ve got it all under control.”

Good Morning America (ABC television broadcast, 11 July 2001).
68
Possible Fifth Amendment implications or other factors that
Burdine’s habeas counsel may have considered in electing to earlier

-64-
Burdine’s habeas counsel has supplemented the record, albeit in a

most unusual way. For our court to disregard it is to fail to do

our duty.

Now that we have this evidence, it goes without saying that

Burdine cannot have it both ways. Knowing what we now know, we

cannot allow Burdine, on the one hand, to have withheld during the

state habeas proceeding such evidence which might have pinpointed

when Cannon was sleeping, while, on the other hand, continuing to

claim presumed-prejudice based primarily upon one extremely broad

state-finding, that, in turn, was based upon extremely non-specific

evidence. In other words, knowing what we now know, Burdine cannot

be allowed to be sheltered by the very uncertainty that assists, if

not causes, the majority to presume prejudice. The majority allows

him to do so. Again, it does not even mention this tactic, other

than, in response to this dissent, stating it has no bearing on its

presumed-prejudice analysis. Maj. Op. at 28 n.10.69

withhold this evidence are not in play. Through his extra-judicial
admission, Burdine’s habeas counsel elected to present this
evidence. That he waited to do so until it could not be tested in
and considered by the state habeas court, or even the federal
district court, does not change the fact that we, at least, now
know about it. Burdine’s habeas counsel, at en banc oral argument,
having confirmed this evidence, which he elected shortly before to
make public, made an extra-judicial admission upon which we can,
and indeed, must, act.
69
I express no opinion on whether such evidence-withholding and
the extra-judicial statement by Burdine’s habeas counsel are
sanctionable. Any decision about this must be left for another
day, perhaps in the district court or a Texas State Bar
proceeding. Obviously, an evidentiary hearing would be required.
See, e.g., TEX. DISCIPLINARY R. OF PROF’L CONDUCT 3.03(a)(2) (lawyer

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 Because a habeas proceeding is civil in nature, Burdine had

the burden of proving his claims by a preponderance of the

evidence, including that Cannon slept during a critical stage of

trial. See Browder v. Dir., Dep’t. of Corr. of Ill., 434 U.S. 257,

269 (1978); Walker v. Johnston, 312 U.S. 275, 286 (1941); Irving v.

Breazeale, 400 F.2d 231, 236 (5th Cir. 1968). In the light of our

now knowing this key evidence, which Burdine elected not to

present, we should, at the very least, employ the uncalled-witness

rule. This new evidence about nudging Cannon, which Burdine did

not present to the state habeas court, permits a negative

inference. See, e.g., Streber v. Comm’r of Internal Revenue, 138

F.3d 216, 221 (5th Cir. 1998) (court may draw negative inference

from party’s failure to produce witness “‘whose testimony would

elucidate the transaction’” (quoting Graves v. United States, 150

U.S. 118, 121 (1893)); Gumbs v. Int’l Harvester, Inc., 718 F.2d 88,

96 (3d Cir. 1983) (party’s unexplained failure or refusal to

produce evidence that would tend to throw light on issues

authorizes inference that such evidence would be unfavorable to

that party).

shall not knowingly fail to disclose fact to tribunal when
disclosure is necessary to avoid assisting criminal or fraudulent
act); id. 3.07(a) (lawyer shall not make extrajudicial statement
that reasonable person would expect to be disseminated by means of
public communication if lawyer knows or reasonably should know it
will have substantial likelihood of materially prejudicing
adjudicatory proceeding).

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 Although, as an appellate court, we do not find facts, we can

(here, sua sponte) conclude as a matter of law that, had the state

habeas court been aware of this withheld-evidence, it would have

drawn a negative inference. Cf. Albiar v. State, 739 S.W.2d 360,

362-63 (Tex. Crim. App. 1987) (en banc) (in criminal case,

prosecutor may comment in closing argument on defendant’s failure

“to call a competent and material witness, when it is shown that

such witness was available to testify on behalf of the defendant,

but was not called by the defendant to testify”; “failure to

produce available evidence justifies an inference that it would be

unfavorable to the defendant”); Interest of P.A.O., M.P.O., &

S.L.O., No. 08-98-00436-CV, 2001 WL 175620, at *13 (Tex. App. — El

Paso 22 Feb. 2001) (unpublished) (in proceeding for termination of

parental rights, “jury could draw whatever inference was reasonable

under the circumstances [because] ... ‘Fifth Amendment does not

forbid adverse inferences against parties to civil actions when

they refuse to testify in response to probative evidence offered

against them’” (quoting Baxter v. Palmigiano, 425 U.S. 308, 318

(1976))).70 If for no other reason, we must do so in order to

70
Herbert v. Wal-Mart Stores, Inc., 911 F.2d 1044 (5th Cir.
1990) (per curiam), does not hold to the contrary. There, the
panel concluded this uncalled-witness-rule has no place in federal
trials conducted under the Federal Rules — of evidence and of civil
procedure — and called the rule’s “archaism” to the attention of
our court for possible en banc consideration. Id. at 1047-49.
Herbert states it expresses no opinion whether such an adverse
inference may be drawn in criminal trials or federal civil actions
not tried under the Federal Rules. Id. at 1048. Unlike Herbert,

-67-
protect the integrity of our court and this proceeding. Cf. Int’l

Union, United Auto., Aerospace & Agric. Implement Workers of Am.

(UAW) v. Nat’l Labor Relations Bd., 459 F.2d 1329, 1339 (D.C. Cir.

1972) (“the adverse inference rule plays a vital role in protecting

the integrity of the administrative process in cases where a

subpoena is ignored”).

Accordingly, because Burdine’s habeas counsel chose to present

this crucial evidence only extra-judicially, and to do so only

after completion of the proceedings in the state habeas court and

in the federal district court, we are justified in concluding that

the state habeas court would have made the following inference

adverse to Burdine: had Burdine testified at the state habeas

evidentiary hearing, he would have pinpointed the sleeping episodes

as having occurred during the presentation of uncontested evidence,

for which no response or other action would have been required by

Burdine’s trial counsel, Cannon. Obviously, this adverse inference

would be fatal to his claim that the sleeping occurred at a

“critical stage”. Therefore, on this basis alone, we should reject

presumed-prejudice.71 If not, we should remand to the district

which involved a civil case tried in federal court under the
Federal Rules, the binding findings at hand arise out of a state
habeas proceeding. Moreover, the uncalled-witness in this case is
a party — Burdine — not an expert witness, as in Herbert.
71
Revealing this evidence extra-judicially is consistent with
a disturbing trend of lawyers’ trying cases outside the courtroom.
See Col. Donald L. Burnett, Jr., Twenty-Second Edward H. Young
Lecture in Legal Education: Professionalism: Restoring the Flame,

-68-
court to develop this evidence and its bearing on the presumed-

prejudice claim. At the very least, the evidence-withholding

admission colors Burdine’s presumed-prejudice claim.

III.

The underlying murder was committed 18 years ago. Since then,

in addition to the trial (1984) and direct appeal (1986), there

have been two state habeas applications (1987, supplemented in 1988

and August 1994, and December 1994) and the pending federal

application (1995). The majority ignores the underlying facts

(especially Burdine’s result-dictating confession and Cannon’s

attempts to keep it out) and, for the most part, the prior

proceedings. They must, however, be examined in order to conduct

the analyses mandated for the presumed-prejudice claim and the

Teague-bar vel non.

A.

The opinion of the Texas Court of Criminal Appeals, affirming

the conviction and sentence on direct appeal, details well the

facts underlying Burdine’s capital murder conviction. The issue at

hand compels repeating that recitation.

On April 20, 1983, the body of the
victim, Wise, was discovered lying face down

158 MIL. L. REV. 109, 118 (1998); Jan Hoffman, May It Please the
Public: Lawyers Exploit Media Attention as a Defense Tactic, N.Y.
TIMES, 22 Apr. 1994, at B1 (“‘Lawyers now feel it is the essence of
their function to try the case in the public media.’” (quoting New
York Supreme Court Justice Harold J. Rothwax)), quoted in Jonathan
M. Moses, Legal Spin Control: Ethics and Advocacy in the Court of
Public Opinion, 95 COLUM. L. REV. 1811, 1856 (Nov. 1995).

-69-
in the north bedroom of his trailer. Wise’s
hands and legs were bound with cord, and his
mouth was gagged. There was a stab wound on
Wise’s back and blood in the shoulder area and
hair.

The State established through competent
medical testimony that the cause of Wise’s
death was two stab wounds to the back. Wise’s
scalp was lacerated; his mouth was gagged with
socks and a pillowcase. The force of the stab
wounds was sufficient to break Wise’s rib.
One of the knife wounds appeared to have been
caused by the knife offered in evidence by the
State.

The police determined that several items
were missing from Wise’s trailer: [among
other things,] a television, ... handgun,
automatic bank teller card, ... and items of
clothing. The serial number on the handgun
was entered into the National Crime
Information Center computer. The gun was
described as a Smith and Wesson revolver,
gold- and nickel-plated with pearl handles.

[Burdine] gave an extrajudicial
confession to the murder. He also testified
at trial, where he limited his participation
in the killing to that of an accomplice to the
aggravated robbery of Wise.

Viewed in the light most favorable to the
prosecution, the evidence showed that
[Burdine] and Wise met in November of 1982.
The two men had a homosexual relationship
which continued for approximately three and a
half months while [Burdine] was living with
Wise. Wise, a night supervisor at Statewide
Security Service, obtained a job at the
security company for [Burdine].

Eventually, [Burdine] and Wise quarreled
about the manner in which Wise handled
[Burdine]’s earnings. [Burdine] testified
that Wise asked him to move from the trailer
after [Burdine] refused to prostitute himself
for Wise. [Burdine] moved out, and

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approximately two weeks later he resigned his
job at the security company. According to
[Burdine], Wise subsequently “put a contract
out on him.”

[Burdine] then met Douglas McCreight, a
homosexual male, who did not know Wise. On
April 18, 1983, [Burdine] and McCreight
decided to go to Wise’s trailer in order to
get money from him. The money was to be
obtained either voluntarily or through
robbery. [Burdine] warned McCreight not to
try anything “funny” with Wise in his bedroom,
because Wise kept a gun there.

Soon after they entered the trailer,
McCreight asked to use the bathroom. [Burdine]
and Wise remained in the living room. When
McCreight returned to the living room, he was
wearing a pair of gloves and carrying Wise’s
gun and a large hunting knife. McCreight then
ordered Wise to lie on the floor. McCreight
removed Wise’s glasses, and [Burdine] directed
McCreight to take the cord from the telephone;
the cord was used to bind Wise’s wrists.
[Burdine] told McCreight that something was
needed to keep Wise quiet, because he would
“squeal like a pig in a slaughterhouse.”

[Burdine] retrieved a pair of socks,
which McCreight stuffed in Wise’s mouth, and a
section of sheet, which [Burdine] used to tie
the gag in place. At this point, [Burdine]
and McCreight made Wise move to another part
of the trailer, where they would be less
likely to be seen by a neighbor. [Burdine]
and McCreight began to stack items in the
living room by the front door so that they
could take them later.

[Burdine] and McCreight then decided that
“something had to be done” with Wise because
he could identify [Burdine]. McCreight cut
the electrical cord of a clock radio and bound
Wise’s legs with it. [Burdine] and McCreight
then unsuccessfully attempted to smother Wise
to death. They placed Wise face down on the
bed with his face on a pillow. McCreight held
a pillow over Wise’s head, and [Burdine] held

-71-
Wise’s feet. Wise thrashed around on the bed
so much that McCreight was unable to smother
him, and Wise sat up on the bed, whimpering
and crying. After further discussion,
[Burdine] directed McCreight to hit the top of
Wise’s head with a lead-filled police sap.
McCreight struck Wise several times; Wise bled
profusely and lay still.

McCreight and [Burdine] then left the
trailer, taking the stolen items with them.
They discussed Wise and again decided that
something needed to be done so that he could
not identify [Burdine]. After re-entering the
bedroom, McCreight made the sign of the cross
and then stabbed Wise in the back. [Burdine]
then told McCreight, “What the hell, hand me
the knife,” and [Burdine] also stabbed Wise in
the back.

[Burdine] and McCreight left the trailer
and drove to Austin. While in Austin,
[Burdine] pawned a television set and obtained
money from different automatic teller machines
using Wise’s bank card. [Burdine] and
McCreight proceeded from Austin to California.
After they arrived in Eureka, California, they
pawned Wise’s gun for thirty dollars. Within
thirty minutes of this transaction, both men
were arrested at a local gas station.

After hearing from the Eureka, California
police department that Wise’s gun had been
recovered, Detectives G.T. Neely and R.W.
Holland, both Houston police officers,
traveled to California on April 28 [ten days
after the murder]. They met McCreight and
[Burdine] at the local courthouse. At
[Burdine]’s initial appearance before a
magistrate, he was given Miranda warnings.

The officers then conducted separate
interviews of McCreight and [Burdine].
[Burdine] was again given Miranda warnings by
Detective Neely. [Burdine] then gave the
officers an oral statement and consented to
the search of the pickup truck which he had
been driving at the time of his arrest.

-72-
 In the back of [Burdine]’s truck, the
officers found a large hunting knife and some
property which had been taken from Wise’s
trailer, including a suitcase, articles of
clothing, some eight-track tapes, and several
pieces of jewelry. Pursuant to [Burdine]’s
statement, Wise’s television and ring were
recovered in Austin.

At trial, [Burdine] testified that only
McCreight stabbed Wise. However, [Burdine]
admitted that he had anticipated some violence
when he and McCreight went to Wise’s trailer.
He also admitted that he told McCreight where
Wise kept his gun, that he warned McCreight
that Wise would “scream like a stuck hog,” and
that he told McCreight to gag Wise and to take
Wise to the back of the trailer if he were
going “to do anything.” Further, [Burdine]
admitted that he took Wise’s property, that he
used Wise’s automatic bank teller card to
obtain money in Austin, and that he pawned the
television in Austin.

Burdine v. State, 719 S.W.2d 309, 312-14 (Tex. Crim. App. 1986)

(emphasis added; footnote omitted), cert. denied, 480 U.S. 940

(1987).

B.

At trial, Cannon’s theory of defense was: McCreight

instigated the murder; Burdine, who was recovering from lung-

removal surgery, was too weak to have participated in the stabbing

(Cannon had Burdine exhibit his surgical scars to the jury); and

Wise had taken advantage of Burdine, stealing his money, harassing

and threatening him, including putting out contracts to physically

harm him, and attempting to force him to prostitute himself.

-73-
 An examination of the state court record reveals that, despite

Cannon’s sleeping during unidentified portions of the trial, there

was a meaningful adversarial testing of the State’s case. Cannon

filed pre-trial motions, including for discovery, inspection, and

production of evidence, such as Wise’s criminal and employment

records and photo albums of nude boys allegedly found in Wise’s

residence after the murder. At trial, Cannon cross-examined the

State’s witnesses, made objections, and presented witnesses on

behalf of Burdine. Most importantly, Cannon vigorously contested

the admissibility of Burdine’s confession — obviously, the key

evidence of his guilt. See Pyles v. Johnson, 136 F.3d 986, 996

(5th Cir.) (defendant’s “confession was probably the most probative

and damaging evidence that could be admitted against him” (internal

quotation marks, citation, and brackets omitted)), cert. denied,

524 U.S. 933 (1998).

During parts of the first and second days of trial, a hearing

was held on Burdine’s motion to suppress that confession. At that

hearing, Burdine testified: he asked for a lawyer prior to making

the statement in California, but was told by Houston detectives he

would not need an attorney because one would be appointed for him

on his return to Texas; and, he twice told the detectives he did

not participate in stabbing Wise, but they forced him to confess,

telling him he could not return to Texas until he admitted his

involvement in the murder. Cannon argued that the confession was

-74-
not voluntary and should not be admitted. The motion was

overruled.

When Burdine subsequently testified at the guilt-innocence

phase of trial, he admitted his participation in the robbery, but

denied stabbing Wise. Regarding his confession, his testimony was

consistent with his suppression hearing testimony. And, the jury

was instructed on voluntariness.

At the penalty phase, outside the presence of the jury and

against Cannon’s advice, Burdine declined to testify. Immediately

thereafter, in the presence of the jury, Cannon asked Burdine if he

wished “to take the stand and plead for [his] life”. Before being

interrupted by the trial judge, Burdine responded to Cannon: “No,

sir, they didn’t listen to me the first time, I don’t see — ”.

At the conclusion of the penalty phase, Cannon asked Burdine

if he wanted him (Cannon) to handle the appeal or whether he wanted

the court to appoint someone else. Burdine replied: “Your Honor,

with the court’s permission, I would like to have Mr. Joe Cannon

represent me”.

C.

On direct appeal, Burdine, represented by Cannon, raised 17

points of error, including the admission of his confession.

Burdine, 719 S.W.2d at 312.71 Regarding his confession, Burdine

71
In addition to challenging the admission of his confession,
Burdine contested: “the admission into evidence of several
photographs of the deceased taken at the murder scene and at the
autopsy; ... the sufficiency of the evidence to support the jury’s

-75-
claimed: it was obtained in violation of his right to counsel; it

was induced by police trickery; and the officers’ promise to return

him to Houston quickly if he confessed rendered it involuntary.

Id. at 317.

In October 1986, the Texas Court of Criminal Appeals affirmed

the conviction and sentence. Id. at 309. As for the confession,

the court held that the record supported the trial court’s findings

that Burdine waived his right to counsel, received no promises, and

was in good physical condition at that time. Id. at 318. The

court also held: even if Burdine’s confession were disregarded,

the evidence was sufficient to support a conviction under the law

of the parties. Id. at 315. The Supreme Court denied certiorari

in March 1987. Burdine v. Texas, 480 U.S. 940 (1987).

D.

Represented by new counsel, Burdine filed his first state

habeas application in July 1987, presenting approximately ten

claims, including that his custodial statements were admitted in

violation of the Constitution and that he was denied effective-

finding of guilt; the sufficiency of the evidence to support the
jury’s affirmative finding to special issue number two [future
dangerousness]; the imposition of the death penalty in light of
insufficient evidence that he killed or attempted to kill or
intended that life would be taken; and, finally, the trial court’s
charge to the jury regarding [his] oral statement”. Burdine, 719
S.W.2d at 312.

-76-
assistance at trial and on direct appeal.72 For the ineffective-

assistance claim, Burdine presented approximately ten bases,

including that Cannon was ineffective in cross-examination of

witnesses, in arguments, and in preparation and presentation of the

defense.73 And, in March 1988, Burdine filed a supplemental state

habeas application, adding several claims.74

72
The other claims raised in the first state habeas application
were prosecutorial misconduct; the manner in which Burdine’s
confession was introduced unfairly shifted the burden of proof to
him; the evidence was insufficient to convict him of capital
murder; the evidence at the penalty phase was insufficient to
support the jury’s answers to the special issues; as applied, the
Texas death penalty statute did not narrow the class of defendants
to which the death penalty was applicable; the sentencing process
did not facilitate reliable exercise of the jury’s sentencing
discretion, because the jury was repeatedly encouraged by the State
to abdicate its responsibilities; there was insufficient evidence
to support a finding that Burdine had specific intent to kill; the
jury charge regarding admissibility of his confession was
erroneous; the charge at the penalty phase was erroneous; and the
admission of McCreight’s statement to police violated the Sixth
Amendment confrontation clause.
73
Burdine also claimed counsel was ineffective in the following
respects: he failed to seek out and interview potential witnesses
and made no effort to portray the entirety of Burdine’s background;
he was unprepared at trial and had not interviewed critical
witnesses; he was unable to detect falsehoods and
misrepresentations in Officer Neely’s testimony; he failed to
adequately investigate Burdine’s social, educational, and medical
history; he failed to procure expert medical testimony to
substantiate the claim that Burdine was too weak to have actively
participated in the murder; he failed to adequately challenge the
State’s improper voir dire; he failed to file a motion in limine to
limit comment on Burdine’s homosexuality; and he failed to present
available evidence in mitigation during the penalty phase.
74
The additional habeas claims were: the Texas death penalty
statute is unconstitutional because it does not permit the jury to
consider mitigating evidence and because it fails to instruct the
jury to consider mitigating evidence; and counsel was rendered
legally ineffective because the Texas statute fails to instruct the

-77-
 That September, a special master appointed by the state habeas

trial court conducted a three-day evidentiary hearing, at which

Cannon, among others, was called as a witness by Burdine and

testified regarding his theory of defense and his investigation of

possible mitigating evidence.75 Two years later, in October 1990,

the court-appointed master made proposed findings of fact and

conclusions of law and recommended vacating Burdine’s sentence,

based on the prosecutor’s comments about homosexuality during

closing argument, as well as on Cannon’s performance at the penalty

phase. With regard to the latter, the special master recommended

presumed-prejudice under Cronic; alternatively, that Burdine had

established prejudice under the Strickland two-prong test. But,

nearly four years later, in June 1994, the state habeas trial court

recommended that the Texas Court of Criminal Appeals deny relief.

Ex parte Burdine, No. 379,444-A (183d Dist. Ct. Harris County,

Texas, 29 June 1994). That same month, Burdine filed a second

jury to consider mitigating evidence and precludes the jury from
considering evidence in mitigation as probative of anything other
than future dangerousness.
75
Also appearing as witnesses at the September 1988 evidentiary
hearing were the trial judge’s court coordinator, who testified
that, after Burdine’s trial, the prosecutor told him he felt Cannon
was incompetent; Burdine’s mother and aunt, who testified about
Burdine’s background; Wise’s neighbor, who testified about Wise’s
homosexual lifestyle and his mistreatment of, and physical violence
against, Burdine; a psychologist, who testified Burdine suffers
from severe identity disorder and post-traumatic stress syndrome
arising from his history of early deprivation and significant
physical and sexual abuse; and an attorney, who appeared as an
expert witness on criminal law and testified about the
admissibility of Burdine’s confession.

-78-
supplemental state habeas application, claiming, under the Eighth

and Fourteenth Amendments, the State had forfeited its right to

execute him, because of various forms of post-conviction torture.

That December (1994), the Court of Criminal Appeals denied

relief. Ex parte Burdine, No. 16,725-02 (Tex. Crim. App. 12 Dec.

1994). Four days later, the state habeas trial court issued

supplemental findings of fact and conclusions of law, recommending

that the State had not forfeited its right to execute Burdine.

E.

Burdine filed a second state habeas application later that

month, nearly 11 years after trial. Among other claims, he

asserted for the first time that Cannon dozed and/or slept

repeatedly at trial. The application states that the factual basis

for that claim was not known to counsel until 27 December 1994,

when the jury foreman informed counsel’s investigator that Cannon

slept during portions of Burdine’s trial.76

Regarding Burdine’s Cannon-slept-claim, the state trial court

conducted an evidentiary hearing in February 1995. At that

hearing, described in detail infra, Burdine, as noted, did not

testify, nor did he submit an affidavit, concerning the claimed

76
In addition to the sleeping-counsel claim, Burdine presented
additional evidence of Strickland prejudice in support of the
ineffectiveness claims raised in his first state habeas application
regarding the lack of mitigating evidence presented at the penalty
phase. He also claimed his death sentence must be reversed because
the State relied on an unconstitutional 1971 sodomy conviction as
evidence of future dangerousness.

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sleeping. As also noted, his counsel withheld the evidence,

recently revealed, that Burdine nudged Cannon during trial.

Burdine presented the testimony of three jurors, the prosecutor,

the trial judge, the court clerk, the trial judge’s court

coordinator (who had testified in the first state habeas

evidentiary hearing), and an attorney who had served as co-counsel

with Cannon on another capital murder case. The State presented

the testimony of Cannon and one juror.

That April, the state habeas trial court recommended granting

relief, finding, inter alia: Cannon “dozed and actually fell

asleep 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”.

Ex parte Burdine, No. 379,444-B, at 13. Its recommended Conclusion

of Law number 1 provided Burdine had

established per se ineffective assistance of
counsel based on the allegation that [Cannon]
repeatedly dozed and/or actually slept during
substantial portions of [Burdine’s] capital
murder trial so that [Cannon] was, in effect,
absent and that such conduct by [Cannon] is
inherently prejudicial and thus no showing of
prejudice is necessary.

Id. at 18-19 (emphasis added).

But, as noted supra and of critical importance here, later

that month the Court of Criminal Appeals expressly rejected that

recommended conclusion, ruling instead: although the trial court’s

factual findings were supported by the record, Burdine was not

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entitled to relief because he had failed to meet his burden of

proof under Strickland. Ex parte Burdine, No. 16,725-06, at 1, 901

S.W.2d 456. The Supreme Court denied certiorari on 30 May 1995.

Burdine v. Texas, 515 U.S. 1107 (1995).

F.

Meanwhile, in April 1995, Burdine sought federal habeas

relief. He presented ten claims, including ineffective-

assistance.77 Burdine’s ineffective-assistance claim, in addition

to asserting presumed-prejudice because Cannon slept during trial,

listed 14 other bases.78

77
The other federal habeas claims were: under international
law, the State forfeited the right to execute him; the prosecutor’s
homophobic comments to the jury violated the Eighth and Fourteenth
Amendments; the capital murder special issues are constitutionally
inadequate for the jury to consider mitigating evidence of “non-
triggerman” status; those special issues did not allow the jury to
give adequate mitigating effect to evidence of his childhood sexual
abuse and neglected youth; the prosecutor’s equation of the terms
“deliberate” and “intentional” violated the Eighth and Fourteenth
Amendments; the confrontation clause was violated when the
prosecutor elicited incriminating hearsay about McCreight’s
statements to the police; the prosecutor’s closing arguments during
the penalty phase violated the Eighth and Fourteenth Amendments; an
evidentiary hearing is required on his Fifth Amendment claim under
Edwards v. Arizona, 451 U.S. 477, 484-85 (1981) (when accused has
invoked right to have counsel present during custodial
interrogation, valid waiver of that right cannot be established by
showing accused responded to police-initiated interrogation;
accused not subject to further interrogation until counsel made
available, unless accused initiates communication with police); and
at the penalty phase, the State relied on an unconstitutional 1971
sodomy conviction to support future dangerousness.
78
In addition to claiming presumed-prejudice, the 14 other
claimed instances of ineffective-assistance were: failing during
voir dire to object to the prosecutor’s equation of the terms
“intentional” and “deliberate”; failing to conduct an investigation
for the guilt phase; failing to review the district attorney’s

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 In September 1999, without addressing the remaining claims,

the district court granted relief on the presumed-prejudice claim.

Burdine v. Johnson, 66 F. Supp. 2d 854 (S.D. Tex. 1999). It

adopted the rule of Javor v. United States, 724 F.2d 831, 834 (9th

Cir. 1984), decided before Cronic, that prejudice must be presumed

if counsel slept for a “substantial portion” of trial. Burdine, 66

F. Supp. 2d at 862. To determine what constituted a “substantial

portion”, however, the district court applied the analysis

announced in Tippins, 77 F.3d 682, decided in 1996, long after

completion of Burdine’s trial, appeals, and state habeas

proceedings: “(1) did counsel sleep for repeated and/or prolonged

lapses; (2) was counsel actually unconscious; and (3) were the

defendant’s interests at stake while counsel was asleep”. Burdine,

66 F. Supp. 2d at 863-64. In applying the first element of the

Tippins analysis, the district court stated:

The state [habeas trial] court concluded [(not
found)] that Cannon slept for numerous periods

file; being unfamiliar with Texas criminal law; failing to caution
Burdine not to testify during the guilt phase; permitting Burdine
to testify without having listened to his taped confession; failing
to object to the prosecutor’s eliciting inadmissible evidence
regarding McCreight’s statements to the police; failing, at the
penalty phase, to investigate and present mitigating evidence from
Burdine’s adoptive parents; failing to interview fact witnesses for
the penalty phase; failing to request funds for a psychiatric
examination; failing to object to the prosecutor’s homophobic
arguments; forcing Burdine, at the penalty phase, to tell jurors he
did not wish to testify; failing to object to the prosecutor’s
misstatements of law; and creating, because of his (Cannon’s)
homophobic views, an unconstitutional conflict of interest which
adversely affected his performance at trial.

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 of time and the sleeping was “substantial.”
These findings of fact were explicitly adopted
by the Texas Court of Criminal Appeals. This
Court finds, pursuant to the presumption of
correctness standard, that Cannon slept on
numerous occasions throughout Burdine’s
criminal trial and for substantial periods of
time.

Id. at 865 (emphasis added).

The district court failed to note there was no state-finding

that the sleeping occurred during “substantial” portions of trial.

It also overlooked the Court of Criminal Appeals’ express rejection

of the recommended conclusion of law, which simply described

Burdine’s “allegation”. Ex parte Burdine, No. 379,444-B, at 18-19;

Ex parte Burdine, No. 16,725-06, at 1.

Moreover, the district court did not conduct a Teague

analysis, despite the State’s having raised Teague as a bar to

Burdine’s sleeping-counsel-claim. See Goeke v. Branch, 514 U.S.

115, 117 (1995) (“Although a court need not entertain [a Teague]

defense if the State has not raised it, a court must apply it if it

was raised by the State.” (citations omitted)).

IV.

Presumed-prejudice should be rejected because of the withheld-

evidence tactic employed by Burdine’s counsel, which our en banc

court noted sua sponte and inquired about at argument. In the

alternative, the claim still fails.

Burdine filed his federal habeas application (1995) prior to

enactment of the Anti-Terrorism and Effective Death Penalty Act of

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1996 (AEDPA). Therefore, AEDPA’s standards for reviewing the state

court’s decision are not applicable. E.g., Perillo v. Johnson, 205

F.3d 775, 793 (5th Cir. 2000). As a result, we apply the pre-AEDPA

standards. For applying such standards to ineffective-assistance

claims, questions of deficient performance and prejudice are legal

conclusions reviewed de novo. Moore v. Johnson, 194 F.3d 586, 603-

04 (5th Cir. 1999). Likewise, whether Teague precludes Burdine

from benefitting from the claimed prejudice-presumption is reviewed

de novo. See United States v. Shunk, 113 F.3d 31, 34 (5th Cir.

1997) (§ 2255).

On the other hand, for habeas review, “[t]he state court’s

subsidiary findings of specific historical facts and state court

credibility determinations are ... entitled to a presumption of

correctness under [pre-AEDPA] § 2254(d)”. Moore, 194 F.3d at 604.

Therefore, as the State concedes, we are bound by the key state-

finding that Cannon “dozed and actually fell asleep 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”.

Generally, we presume effective assistance of counsel; Burdine

has the burden of overcoming that presumption. See Cronic, 466

U.S. at 658. Only in extremely narrow circumstances will prejudice

be presumed. E.g., Craker v. McCotter, 805 F.2d 538, 542 (5th Cir.

1986). “‘The essence of an ineffective assistance claim is that

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counsel’s unprofessional errors so upset the adversarial balance

between defense and prosecution that the trial was rendered unfair

and the verdict rendered suspect.’” Goodwin v. Johnson, 132 F.3d

162, 172 (5th Cir. 1998) (quoting Kimmelman v. Morrison, 477 U.S.

365, 374 (1986)). Restated, “[t]he benchmark for judging any claim

of ineffectiveness must be whether counsel’s conduct so undermined

the proper functioning of the adversarial process that the trial

cannot be relied on as having produced a just result”. Strickland,

466 U.S. at 686.

A.

Teague’s nonretroactivity principle “prevents a federal court

from granting habeas relief to a state prisoner based on a rule

announced after his conviction and sentence became final”, Caspari

v. Bohlen, 510 U.S. 383, 389 (1994) (emphasis in original), unless

certain narrow exceptions (two announced by the Supreme Court and

a third recently created by our court) apply. The majority holds

its rule is not a proscribed “new rule” under Teague. I

respectfully disagree.

Habeas corpus is “to afford relief to those whom society has

‘grievously wronged’”. Brecht v. Abrahamson, 507 U.S. 619, 637

(1993) (defining harmless error standard applicable in habeas cases

(citation omitted)). Concomitantly, granting a new trial —

especially based on a presumption — has serious consequences.

Retrying defendants whose convictions are set
aside ... imposes significant social costs,

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 including the expenditure of additional time
and resources for all the parties involved,
the erosion of memory and dispersion of
witnesses that accompany the passage of time
and make obtaining convictions on retrial more
difficult, and the frustration of society’s
interest in the prompt administration of
justice.

Id. (emphasis added; internal quotation marks and citation

omitted). The Teague nonretroactivity doctrine “validates

reasonable, good-faith interpretations of existing precedents made

by state courts, and thus effectuates the States’ interest in the

finality of criminal convictions and fosters comity between federal

and state courts”. Gilmore v. Taylor, 508 U.S. 333, 340 (1993)

(internal quotation marks and citation omitted); see also Lockhart

v. Fretwell, 506 U.S. 364, 372 (1993) (Teague nonretroactivity rule

“was motivated by a respect for the States’ strong interest in the

finality of criminal convictions, and the recognition that a State

should not be penalized for relying on the constitutional standards

that prevailed at the time the original proceedings took place”

(internal quotation marks and citation omitted)).

Teague serves these interests by “validat[ing] reasonable,

good-faith interpretations of existing precedents made by state

courts even though they are shown to be contrary to later

decisions”. Butler v. McKellar, 494 U.S. 407, 414 (1990).

In many ways the application of new rules to
cases on collateral review may be more
intrusive than the enjoining of [state]
criminal prosecutions, for it continually
forces the States to marshal resources in

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 order to keep in prison defendants whose
trials and appeals conformed to then-existing
constitutional standards. Furthermore, ...
state courts are understandably frustrated
when they faithfully apply existing
constitutional law only to have a federal
court discover, during a habeas proceeding,
new constitutional commands.

Teague, 489 U.S. at 310 (plurality) (emphasis in original; internal

quotation marks, citations, and brackets omitted).

The Teague doctrine recognizes that “[a]pplication of

constitutional rules not in existence at the time a conviction

became final seriously undermines the principle of finality which

is essential to the operation of our criminal justice system.

Without finality, the criminal law is deprived of much of its

deterrent effect”. Id. at 309 (plurality); see also id. (“‘No one,

not criminal defendants, not the judicial system, not society as a

whole is benefited by a judgment providing that a man shall

tentatively go to jail today, but tomorrow and every day thereafter

his continued incarceration shall be subject to fresh litigation.’”

(quoting Mackey v. United States, 401 U.S. 667, 691 (1971) (Harlan,

J., concurring in judgments in part and dissenting in part))).79

79
These strong interests in finality and comity served by the
Teague doctrine are reflected in AEDPA’s standards of review. See
28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362 (2000). If
this case were subject to review under AEDPA, federal habeas relief
could not be granted for presumed-prejudice unless the state
court’s adjudication “resulted in a decision that was contrary to
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court”. 28 U.S.C. §
2254(d)(1) (emphasis added). The Supreme Court has recently
clarified that, for the § 2254(d)(1) inquiry into “unreasonable

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 1.

“In determining whether a state prisoner is entitled to habeas

relief, a federal court should apply Teague by proceeding in three

steps.” Caspari, 510 U.S. at 390.

First, we must determine when [Burdine’s]
conviction and sentence became final for
Teague purposes.... Second, we must “survey
the legal landscape as it then existed and
determine whether a state court considering
the defendant’s claim at the time his
conviction became final would have felt
compelled by existing precedent to conclude
that the rule he seeks was required by the
Constitution.”... Third, if we determine that
[Burdine] seeks the benefit of a new rule, we
must consider whether “that rule falls within
... the ... narrow exceptions to the
nonretroactivity principle”.

Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (quoting

Caspari, 510 U.S. at 390).

Burdine’s conviction became final in 1987, when the Supreme

Court denied certiorari. Therefore, the second step of the Teague

analysis concerns whether, based on the “legal landscape” in 1987,

Burdine seeks a “new rule”. “[I]n general, a case announces a ‘new

rule’ when it breaks new ground or imposes a new obligation on the

application”, an objective standard is applied. Williams, 529 U.S.
at 409; Gardner v. Johnson, 247 F.3d 551, 559 (5th Cir. 2001)
(“Williams v. Taylor ... makes clear that the [§ 2254(d)(1)]
standard is an objective one”). If this AEDPA standard applied to
Burdine’s case, we certainly could not conclude that the Court of
Criminal Appeals’ decision — prejudice must be proved — is
“contrary to” or an objectively “unreasonable application of”
clearly established Supreme Court precedent. See infra, including
note 21.

-88-
States or the Federal Government”. Butler, 494 U.S. at 412

(emphasis added). Restated, “a decision announces a new rule if

the result was not dictated by precedent existing at the time the

defendant’s conviction became final”. Id. (emphasis in original;

internal quotation marks and citations omitted). We must ask

whether, in 1987, Texas courts “would have felt compelled by

existing precedent to conclude that the [presumed-prejudice] rule

[Burdine] seeks was required by the” Sixth Amendment. Fisher, 169

F.3d at 305.

Obviously, the Teague inquiry is more difficult in cases in

which the “decision is reached by an extension of the reasoning of

previous cases”. Butler, 494 U.S. at 412-13. “Courts frequently

view their decisions as being ‘controlled’ or ‘governed’ by prior

opinions even when aware of reasonable contrary conclusions reached

by other courts”. Id. at 415. But, when the new rule vel non

determination is “susceptible to debate among reasonable minds”,

the rule is “new”. Id.80

80
Contrary to how the special concurrence reads this dissent,
it does not: (1) advocate a non-objective standard for
“reasonableness”; (2) cite the divided opinions by our panel and
the Court of Criminal Appeals “as evidence that the application of
the Cronic rule was ‘debatable among reasonable jurists’”; or (3)
defer to state rulings of law. Sp. Con. at 13-14 (emphasis added).
The “reasonableness” analysis, however, can certainly be tested
against how other courts have ruled on a similar issue; this
dissent does so. See, e.g., Caspari, 510 U.S. at 393. After
“conclud[ing] that a reasonable jurist reviewing [the Supreme
Court’s] precedents at the time [the] conviction and sentence
became final would not have considered the application of the
Double Jeopardy Clause to a noncapital sentencing proceeding to be

-89-
 At issue in Butler was whether a new rule was established by

Arizona v. Roberson, 486 U.S. 675 (1988) (Fifth Amendment bars

police-initiated interrogation following suspect’s request for

counsel in context of separate investigation). The explanation in

Butler of why Roberson announced a new rule is pertinent here:

In Roberson, ... the Court found Edwards [v.
Arizona, concerning waiver vel non of right to
counsel during police interrogation,]
controlling but acknowledged a significant
difference of opinion on the part of several
lower courts that had considered the question
previously. That the outcome in Roberson was
susceptible to debate among reasonable minds
is evidenced further by the differing
positions taken by the judges of the Courts of
Appeals for the Fourth and Seventh Circuits
.... It would not have been an illogical or
even a grudging application of Edwards to
decide that it did not extend to the facts of
Roberson. We hold, therefore, that Roberson
announced a new rule.

Butler, 494 U.S. at 415 (internal quotation marks and citations

omitted).

Although the majority does not mention it, the Supreme Court

and our court frequently have applied this “debatable among

reasonable jurists” standard in determining whether a rule is

“new”.81 See, e.g., Caspari, 510 U.S. at 393 (“a reasonable jurist

dictated by [its] precedents”, the Supreme Court stated: “This
analysis is confirmed by the experience of the lower courts”. Id.;
see also Lambrix v. Singletary, 520 U.S. 518, 538 (1997) (noting
unanimity of other court decisions on point at issue).
81
This “debatable among reasonable jurists standard” is quite
similar to that used under AEDPA for whether a certificate of
appealability (COA) should be granted, so that the habeas

-90-
reviewing our precedents at the time respondent’s conviction and

sentence became final would not have considered the application of

the Double Jeopardy Clause to a noncapital sentencing proceeding to

be dictated by our precedents”); Graham v. Collins, 506 U.S. 461,

476 (1993) (“The result in a given case is not dictated by

precedent if it is susceptible to debate among reasonable minds,

or, put differently, if reasonable jurists may disagree” (internal

quotation marks and citations omitted)); Matthew v. Johnson, 201

F.3d 353, 363 (5th Cir.) (in Teague analysis, “the reasonable views

of state courts are entitled to consideration along with those of

federal courts” (internal quotation marks and citation omitted)),

cert. denied, 121 S. Ct. 291 (2000); Fisher, 169 F.3d at 305

(“reasonable jurists, considering the question in 1996, would not

have felt compelled by existing precedent to rule that religion-

based peremptory challenges violate the Equal Protection Clause”);

petitioner can appeal a district court’s denial of habeas relief.
See 28 U.S.C. § 2253(c) (COA may not issue unless “the applicant
has made a substantial showing of the denial of a constitutional
right”); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (when district
court has rejected constitutional claims on merits, COA should
issue if petitioner demonstrates “reasonable jurists would find the
district court’s assessment of the constitutional claims debatable
or wrong”; when it denies relief on procedural grounds, COA should
issue if petitioner “shows, at least, that jurists of reason would
find it debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason would
find it debatable whether the district court was correct in its
procedural ruling”). Needless to say, the procedural decisions for
whether a rule is “new” and whether to grant a COA involve quite
similar processes. They are both precursors to merits-decisions
that concern finality, among other things, and reflect, as
discussed at note 20, supra, similarities between AEDPA and Teague.

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Vega v. Johnson, 149 F.3d 354, 357 (5th Cir. 1998) (“If reasonable

minds could differ on whether current law requires relief, we may

not grant relief without creating a ‘new rule’ barred by Teague.”),

cert. denied, 525 U.S. 1119 (1999).82

As quoted earlier, the key component in determining whether a

rule is new is whether a state court considering the claim at the

time petitioner’s conviction became final would have felt compelled

82
See also O’Dell v. Netherland, 521 U.S. 151, 159-60 (1997)
(“[t]he array of views expressed in Simmons [v. South Carolina, 512
U.S. 154 (1994)] itself suggests that the rule announced there was,
in light of this Court’s precedent, susceptible to debate among
reasonable minds” (internal quotation marks and citations
omitted)); Truman v. Johnson, 205 F.3d 844, 846 (5th Cir.) (“If the
outcome of the case is ‘susceptible to debate among reasonable
minds,’ then the decision is not dictated by precedent”; fact that
Supreme Court split 5-4 in Department of Revenue of Montana v.
Kurth Ranch, 511 U.S. 767 (1994), “suggests that the outcome of the
case was susceptible to debate among reasonable minds”), cert.
denied, 530 U.S. 1219 (2000); Lucas v. Johnson, 132 F.3d 1069,
1080-81 & n.7 (5th Cir.) (“The holding requested by Lucas
[admission of videotaped confession in which he is handcuffed
deprived him of the right to be presumed innocent] is susceptible
to debate and thus constitutes a new rule under the reasoning of
Butler.”), cert. dismissed, 524 U.S. 965 (1998); Vuong v. Scott, 62
F.3d 673, 682 (5th Cir.) (“reasonable jurists” considering Vuong’s
claim when his conviction became final “would not have felt
compelled” to rule in his favor), cert. denied, 516 U.S. 1005
(1995); Motley v. Collins, 18 F.3d 1223, 1236-37 (5th Cir.) (Mayo
v. Lynaugh, 893 F.2d 683, modified on reh’g, 920 F.2d 251 (5th Cir.
1990), cert. denied, 502 U.S. 898 (1991), announced new rule
because reasonable jurists reading case law that existed at time
Mayo’s conviction became final could have disagreed with panel’s
conclusion), cert. denied, 513 U.S. 960 (1994); see also Housel v.
Head, 238 F.3d 1289, 1297 (11th Cir. 2001) (to determine whether
rule sought by habeas petitioner was dictated by precedent, inquiry
is “whether ... the unlawfulness of [petitioner’s] conviction was
apparent to all reasonable jurists” (internal quotation marks and
citation omitted)).

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by existing precedent to conclude that the rule sought by

petitioner is required by the Constitution. Accordingly, we must

determine whether the rule Burdine seeks is “dictated by ...

precedent [existing at the time his conviction became final in

1987] — whether, that is, the unlawfulness of [Burdine’s]

conviction was apparent to all reasonable jurists”. Lambrix v.

Singletary, 520 U.S. 518, 527-28 (1997) (emphasis in original). It

is not enough, under Teague, that the rule is “a reasonable

interpretation of prior law”. Id. at 538. Instead, the relevant

inquiry is “whether no other interpretation was reasonable”. Id.

(emphasis in original); see also Graham, 506 U.S. at 477 (same).

“Unless reasonable jurists hearing [Burdine’s] claim at the time

his conviction became final [in 1987] would have felt compelled by

existing precedent to rule in his favor [on his presumed-prejudice

claim], we are barred from doing so now.” Fisher, 169 F.3d at 305

(internal quotation marks, brackets, and citation omitted).

Whether Cronic dictates presumed-prejudice when, as in this

case, counsel sleeps during unidentifiable portions of a capital

murder trial, but otherwise provides meaningful assistance to his

client, is certainly susceptible to debate among reasonable

jurists, as reflected by the majority and dissenting opinions of

our court’s panel, 231 F.3d 950, vacated, 234 F.3d 1339 (5th Cir.

2000), and, most certainly, by the previously referenced opinions

of the state habeas trial court and the Court of Criminal Appeals.

-93-
 The state habeas trial court’s recommended conclusion was that

Burdine had established presumed-prejudice. Ex Parte Burdine, No.

379,444-B, at 18-19. In 1995, however, a majority of the Court of

Criminal Appeals rejected that conclusion; it held Burdine was not

entitled to relief “because he has failed to discharge his burden

of proof under Strickland”. Ex Parte Burdine, No. 16,725-06, at 1,

901 S.W.2d 456. Three justices dissented, noting that, in Javor,

724 F.2d 831, the Ninth Circuit had found a Sixth Amendment

violation under similar circumstances; the dissent stated: “The

issue presented in this case has never been addressed by the United

States Supreme Court nor by this court”. Ex parte Burdine, 901

S.W.2d at 458. As stated earlier, the majority opinion by the

Court of Criminal Appeals does not even refer to presumed-

prejudice, although perhaps its citation to Strickland was intended

to include not only the prejudice analysis as part of the two-prong

test, but also Strickland’s discussion of presumed-prejudice. In

any event, the recommended presumed-prejudice conclusion was

rejected.

A survey of the legal landscape as it existed when Burdine’s

conviction became final in 1987 demonstrates that the rule

fashioned now by the majority is not dictated by such precedent.

Restated, Texas courts, considering Burdine’s claim in 1987, would

not have felt compelled to presume prejudice because of Cannon’s

sleeping during unidentified portions of trial.

-94-
 As the majority notes, the Supreme Court held, in 1932, that

a capital defendant has a constitutional right to “the guiding hand

of counsel at every step in the proceedings against him”. Powell

v. Alabama, 287 U.S. 45, 69 (1932). In this regard, the Court held

subsequently that showing prejudice was not necessary when the

defendant was denied counsel at arraignment, a critical stage of

the proceedings, because certain defenses were lost if not then

pleaded. Hamilton v. Alabama, 368 U.S. 52, 53-55 (1961).83

Similarly, a defendant was denied assistance of counsel when the

trial judge, pursuant to state statute, denied defense counsel the

opportunity to be heard in summation at a bench trial, despite the

fact there was no way to know whether argument might have affected

the outcome. Herring v. New York, 422 U.S. 853, 864-65 (1975).

And, shortly thereafter, the Court reversed a decision that

83
In asserting that this case simply calls into play a rule
established by Hamilton, 26 years before Burdine’s conviction
became final, Sp. Con. at 7-8, the special concurrence overlooks
Cronic and Strickland’s teachings concerning the rare instances for
which prejudice is to be presumed, discussed infra. In any event,
counsel being actually denied in Hamilton at a discrete,
identifiable stage (arraignment) is a far cry from the situation at
hand. Hamilton is cited in a footnote in Cronic to support its
statement that “a trial is unfair [and, therefore, prejudice
presumed] if the accused is denied counsel at a critical stage of
his trial”. Cronic, 466 U.S. at 659 & n.25. In that footnote, the
Court stated: “The Court has uniformly found constitutional error
without any showing of prejudice when counsel was either totally
absent, or prevented from assisting the accused during a critical
stage of the proceeding”. Id. (emphasis added). Like Hamilton,
none of the other six cases cited in the footnote in Cronic to
support those statements even approach the sleeping-counsel
situation at hand.

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defendant’s failure to claim prejudice was fatal to his Sixth

Amendment claim, and then concluded that a court order preventing

him from consulting with his counsel during a 17-hour overnight

recess between defendant’s direct and cross-examination deprived

him of assistance of counsel. Geders v. United States, 425 U.S.

80, 82, 91 (1976).

As discussed, the quite well-known, and quite often applied,

standards for ineffective-assistance were established in 1984 in

Strickland and Cronic. Under Strickland’s two-prong test, “the

defendant must show that counsel’s performance was deficient” —

“counsel made errors so serious [he] was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment”.

Strickland, 466 U.S. at 687 (emphasis added). In addition, he

“must show that the deficient performance prejudiced the defense”

— “counsel’s errors were so serious as to deprive the defendant of

a fair trial, a trial whose result is reliable”. Id. (emphasis

added). For the prejudice prong, “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been

different”. Id. at 694 (emphasis added). “A reasonable

probability is a probability sufficient to undermine confidence in

the outcome.” Id.

Strickland, which concerned sentencing for a capital murder

case, observed, however: “In certain Sixth Amendment contexts,

-96-
prejudice is presumed”. Id. at 692. Such contexts were described

as “[a]ctual or constructive denial of the assistance of counsel

altogether” and “various kinds of state interference with counsel’s

assistance”. Id. (emphasis added). “Prejudice in these

circumstances is so likely that case-by-case inquiry into prejudice

is not worth the cost.” Id. (emphasis added). “[S]uch

circumstances involve impairments of the Sixth Amendment right that

are easy to identify ... and [in those instances where] the

prosecution is directly responsible, easy for the government to

prevent”. Id. (emphasis added).84 “[A] similar, though more

limited, presumption of prejudice” applies “when counsel is

burdened by an actual conflict of interest”. Id.

Cronic, decided the same day as Strickland, held presumed-

prejudice unwarranted under the circumstances of that case (for

complex mail fraud prosecution, young lawyer with real estate

practice appointed to represent defendant and allowed only 25 days

for pretrial preparation). Cronic, 466 U.S. at 666. But, as it

did in Strickland, the Court observed: “There are ...

circumstances ... so likely to prejudice the accused that the cost

of litigating their effect in a particular case is unjustified”.

Id. at 658. Such circumstances include: (1) “the complete denial

84
Of course, as discussed infra, I agree with the majority,
Maj. Op. at 17-22 & nn. 5-6, that, although state-interference may
justify presumed-prejudice, such interference is not a prerequisite
for presumed-prejudice.

-97-
of counsel”, id. at 659 (emphasis added); (2) where “counsel

entirely fails to subject the prosecution’s case to meaningful

adversarial testing”, id. (emphasis added); (3) “when [as also

discussed in note 24, supra,] counsel was either totally absent, or

prevented from assisting the accused during a critical stage of the

proceeding”, id. at 659 n.25 (citing, inter alia, Geders, Herring,

and Hamilton; emphasis added); and (4) “when counsel labors under

an actual conflict of interest”, id. at 662 n.31. But, “[a]part

from circumstances of that magnitude, ... there is generally no

basis for finding a Sixth Amendment violation unless the accused

can show how specific errors of counsel undermined the reliability

of the finding of guilt”. Id. at 659 n.26.85

The majority holds that its rule is dictated by the third

circumstance described in Cronic: counsel is absent during a

critical stage. It holds there is such absence when counsel “is

repeatedly unconscious during not insubstantial portions” of the

guilt-innocence phase of a capital murder trial. In support of its

holding its rule is not new, but instead merely an application to

an analogous case of the general Sixth Amendment principles

established in Cronic, the majority, Maj. Op. at 11-15, erroneously

85
The special concurrence’s comments about the “difficulty of
‘proving [prejudice]’ in any finite sense”, Sp. Con. at 12, are
greatly at odds with the reasons given by Cronic and Strickland for
presuming prejudice: it is so likely that inquiry about it is not
worth the cost and it is easy to identify. The special
concurrence’s position on this point is also at odds with its
quoting Cronic’s reasoning. Sp. Con. at 12 n.39.

-98-
relies on Penry v. Lynaugh, 492 U.S. 302 (1989), regarding Penry’s

claim that the Texas death penalty statute prevented the jury from

giving any mitigating effect to the evidence of his mental

retardation and abuse as a child. That claim, however, did not

require the creation of a new rule, because, prior to Penry’s

conviction becoming final, established precedent required the State

to allow the jury to give effect to mitigating evidence in making

its sentencing decision. See Saffle v. Parks, 494 U.S. 484, 491-92

(1990). Nothing in Penry supports the majority’s extension of

Cronic’s critical-stage rule to the facts of Burdine’s case — even

the facts found improperly by the majority.

Burdine’s case is not analogous to the circumstances for which

Cronic found the presumption appropriate. The cases cited in

Cronic as examples of counsel’s being either absent or prevented

from assisting the accused during a critical stage (Geders,

Herring, and Hamilton) did not involve circumstances even remotely

analogous to Burdine’s. In fact, in each, the government was

responsible for the denial of counsel. See Geders, 425 U.S. at 82

(court order); Herring, 422 U.S. at 864-65 (state statute);

Hamilton, 368 U.S. at 53 (no counsel appointed for arraignment).

Obviously, the State of Texas was not responsible for Cannon’s

sleeping. Indeed, the state habeas trial court credited the

testimony of the trial judge and prosecutor that they did not

observe him doing so.

-99-
 Of course, as Cronic also noted, “[t]he fact that the accused

can attribute a deficiency in his representation to a source

external to trial counsel[, such as the State,] 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.31.86

Nevertheless, that the denial of counsel in Geders, Herring, and

Hamilton was government-instigated serves to distinguish them from

the claimed denial in this case. And, obviously, because the State

was not responsible for Cannon’s sleeping, such conduct was not

“easy for [it] to prevent”. Strickland, 466 U.S. at 692.

Moreover, the stage of the proceeding at which counsel was

denied in Geders, Herring, and Hamilton was easily identifiable.

See Geders, 425 U.S. at 82 (overnight recess); Herring, 422 U.S. at

864-65 (closing argument); Hamilton, 368 U.S. at 53 (arraignment).

In contrast, it is impossible to determine when Cannon slept.

Accordingly, Burdine’s claim does not “involve impairments of the

Sixth Amendment right that are easy to identify”. Strickland, 466

U.S. at 692.

Although Burdine contends Javor supports his claim’s being

encompassed by the critical stage circumstance described in Cronic,

86
See note 25, supra, concerning state-interference not being
a prerequisite for presumed-prejudice.

-100-
the majority, Maj. Op. at 26-27, does not apply Javor’s rule that

presumed-prejudice is appropriate when counsel sleeps through a

substantial portion of trial. Javor, 724 F.2d at 833. Instead, it

has created a different rule: presumed-prejudice is appropriate

when counsel is “repeatedly unconscious through not insubstantial

portions”.

When Burdine’s conviction became final in 1987, Texas courts

would not have felt compelled to apply Javor, decided in 1984. Cf.

Magouirk v. Phillips, 144 F.3d 348, 361 (5th Cir. 1998) (“state

courts are not bound by Fifth Circuit precedent when making a

determination of federal law”). Moreover, neither Cronic nor the

majority opinion in Strickland cited Javor as an example of the

denial of counsel at a critical stage. Instead, Javor was cited

only in a concurring opinion in Strickland. 466 U.S. at 703 n.2

(Brennan, J., concurring). Obviously, Javor being so cited makes

clear that the Supreme Court was quite well aware of Javor and the

claim that sleeping counsel justifies presumed-prejudice. Javor’s

not being cited in the Cronic and Strickland majority opinions as

an example of presumed-prejudice is strong medicine indeed. It is,

at the very least, an indication the Court had not decided

presumed-prejudice was applicable in such a situation and amply

-101-
demonstrates that, for Burdine’s claim, the majority’s application

of presumed-prejudice is a “new” rule, one not dictated by Cronic.87

Moreover, as noted, Javor (presumed-prejudice if slept through

substantial portion) does not dictate the majority’s rule

(presumed-prejudice if “repeatedly unconscious through not

insubstantial portions”). There was evidence in Javor that:

defense counsel slept during a substantial portion of trial;

counsel failed to participate when evidence against the defendant

was being presented; counsel stated to counsel for a co-defendant

that he had missed some of the testimony; other counsel often

“nudged” and “kicked” counsel to awaken him; and the trial judge

was concerned about counsel’s inattentiveness. Javor, 724 F.2d at

833-34.

For Burdine, the district court applied Javor’s “substantial

portion” rule, modified by the rule announced in Tippins, decided

in 1996: prejudice must be presumed if, while the defendant’s

interests were at stake, counsel slept for repeated or prolonged

lapses and was actually unconscious. Burdine, 66 F. Supp. 2d at

863-64. As discussed, the majority does not adopt that rule

either. In any event, in 1987, Texas courts obviously would not

87
Neither the majority nor the special concurrence address
Javor’s not being cited in the Cronic and Strickland majority
opinions, much less the implications of such absence for the
difficult and detailed analysis we are required to apply in
deciding whether a new rule is created if we grant presumed-
prejudice based on the facts at hand.

-102-
have felt compelled to apply the substantiality analysis from

Tippins, which was not decided until 1996, long after the

conclusion of Burdine’s trial, direct appeal, and state habeas

proceedings.

It is not even clear Tippins applied presumed-prejudice. It

states: “Under these circumstances, where the adversary nature of

the proceeding was subject to repeated suspensions [because of

counsel’s unconsciousness] there is little difference between

saying that prejudice will be presumed and saying that prejudice

has been demonstrated”. Tippins, 77 F.3d at 687. The Tippins

court concluded: “Tippins suffered prejudice, by presumption or

otherwise, if his counsel was repeatedly unconscious at trial for

periods of time in which defendant’s interests were at stake”. Id.

In most cases, in order to apply the Tippins analysis, examination

of the trial record is necessary; otherwise, it would usually be

difficult to determine whether the sleeping occurred while the

defendant’s interests were at stake. But, such record-examination

is totally at odds with the rationale for presumed-prejudice (case-

by-case inquiry not worth the cost of litigating prejudice vel non

because the Sixth Amendment violations are so easy to identify and

prejudice is so likely to have occurred). See Strickland, 466 U.S.

at 692.

Notwithstanding the majority’s view that the Second Circuit

has confirmed the rule and rationale in Tippins, it is not clear

-103-
that the Second Circuit views Tippins as establishing a rule of

presumed-prejudice.88 In any event, Tippins is distinguishable.

88
In United States v. O’Neil, 118 F.3d 65 (2d Cir. 1997),
cert. denied, 522 U.S. 1064 (1998), the Second Circuit described
three categories of Sixth Amendment violations: per se, requiring
no showing of prejudice; conflicts of interest that do not rise to
the level of per se violations, for which prejudice will be
presumed once the defendant “demonstrates an actual conflict and a
lapse in representation”; and ineffective-assistance, requiring
satisfying the Strickland two-prong test. Id. at 70-71. For the
per se category, the court stated it had found violations “in only
two instances: (1) where the attorney was not licensed to practice
law because he failed to satisfy the substantive requirements of
admission to the bar, and (2) where the attorney was implicated in
the defendant’s crime”. Id. at 71. Tippins was cited with a
parenthetical describing it as “suggesting that an attorney’s
sleeping through a substantial portion of the defendant’s trial may
constitute a per se violation”. Id. (citing Tippins, 77 F.3d at
688-89); see also United States v. Rondon, 204 F.3d 376, 380 (2d
Cir.) (citing Tippins for proposition that, when counsel sleeps
through critical portions of trial, it may constitute per se
ineffective-assistance), cert. denied, 121 S. Ct. 271 (2000).

In Morales v. United States, 143 F.3d 94, 96-97 (2d Cir.
1998), cited by the majority, the court refused presumed-prejudice
based on counsel’s failure to advise Morales of his right to
appeal. Tippins was distinguished on the ground that counsel there
“had slept for significant portions of each day of a twelve-day
trial, a dereliction that is so likely to be prejudicial that case-
by-case inquiry is unnecessary”. Id. at 97 (emphasis added;
citation omitted). Moreover, the court explained that, in Tippins,
the rationale for presumed-prejudice was present: the sleeping
occurred in front of the judge and prosecutor and was therefore
“both ‘easy to identify’ and ‘easy for the government to prevent’”.
Id. (citation omitted).

Along this line, in United States v. Muyet, 994 F. Supp. 550
(S.D.N.Y. 1998), the court held that the defendant’s allegations
regarding his counsel sleeping during trial were subject to the
Strickland-prejudice analysis. Id. at 560. The court stated:
“Although the Second Circuit suggested in Tippins that an
attorney’s sleeping through a substantial portion of the
defendant’s trial may constitute ineffective assistance of counsel
per se, the holding of O’Neil clarified that it does not”. Id.

-104-
Unlike in Burdine’s case, the facts in Tippins regarding sleeping

were undisputed. Tippins, 77 F.3d at 685. The trial judge

testified that Tippins’ counsel “slept every day of the trial ...

during testimony that was damaging and adverse to [Tippins’]

interests”. Tippins v. Walker, 889 F. Supp. 91, 92 (S.D.N.Y. 1995)

(internal quotation marks and citation omitted), aff’d, 77 F.3d 682

(2d Cir. 1996). On one occasion when counsel was sleeping during

testimony detrimental to Tippins, the trial judge removed the

attorneys from the courtroom to admonish Tippins’ counsel for

sleeping. Id. The prosecutor also witnessed the sleeping, as did

the court reporter, who testified she heard Tippins’ counsel

snoring several times. Id. And, a juror testified that counsel

slept through approximately 65 percent of a critical prosecution

witness’ testimony. Id.; see also Tippins, 77 F.3d at 687-89. It

was quite clear that Tippins’ counsel slept while evidence harmful

to Tippins’ interests was being presented.

(citation omitted). In Muyet, although defendants presented
affidavits claiming counsel slept every day of the five-month
trial, several times a day, for five to ten minutes at a time, the
court rejected those affidavits as “patently false”, based on its
own observations during trial. Id. It concluded that, even had it
accepted the allegations as true, Tippins was distinguishable,
because “it was undisputed that [Tippins’] counsel was in a state
of unconsciousness (actually snoring in the courtroom) throughout
the trial”. Id.; see also Ortiz v. Artuz, 113 F. Supp. 2d 327,
341-42 (E.D.N.Y. 2000) (distinguishing Tippins and applying
Strickland-prejudice analysis where habeas petitioner did not
present affidavits to support claim that counsel slept during trial
and did “not state the frequency of counsel’s unconsciousness, [or]
point to any specific occasion in which counsel slept while
petitioner’s interests were at stake”).

-105-
 Post-Cronic decisions demonstrate prejudice is to be presumed

only in very narrow circumstances, where the defendant receives no

meaningful assistance of counsel. Recently, in Smith v. Robbins,

528 U.S. 259 (2000), the defendant claimed he had been denied

effective assistance of appellate counsel because counsel requested

leave to withdraw, supported by a brief and pursuant to a new

California procedure which the defendant alleged failed to comply

with Anders v. California, 386 U.S. 738 (1967) (establishing

procedures for withdrawal of court-appointed appellate counsel for

criminal defendant on direct appeal and for dismissal of appeal if

there are no non-frivolous issues). The Court reversed the Ninth

Circuit’s judgment that the procedure used by counsel failed

adequately to comply with the constitutional principles identified

in Anders, but remanded for a determination of whether the appeal

was frivolous or whether it warranted the filing of a merits-brief.

Robbins, 528 U.S. at 283-85.

The Court instructed that, on remand, the defendant would be

required to satisfy Strickland’s two-prong test. Id. at 285. It

explained: “where, as here, the defendant has received appellate

counsel who has complied with a valid state procedure for

determining whether the defendant’s appeal is frivolous, and the

State has not at any time left the defendant without counsel on

appeal, there is no reason to presume that the defendant has been

prejudiced”. Id. at 286. Moreover, Robbins’ claim did “not fall

-106-
within any of the three categories of cases, described in

Strickland, in which we presume prejudice rather than require a

defendant to demonstrate it”. Id. at 287. Those three categories

were described as: “denial of counsel”; “various kinds of state

interference with counsel’s assistance”; and “when counsel is

burdened by an actual conflict of interest”. Id. (internal

quotation marks and citations omitted). Therefore, the categories

described in Cronic as (1) complete denial of counsel, (2) failure

to subject the case to meaningful adversarial testing, and (3)

totally absent during a critical stage are subsumed within the

first category identified in Robbins: “denial of counsel”.

The Robbins Court held the policies supporting the first two

categories it described were inapplicable, because counsel’s

unreasonable choice of a procedure such as Anders or the new

California procedure followed by Robbins’ counsel, in lieu of

filing a merits-brief, did not make prejudice “so likely that case-

by-case inquiry into prejudice is not worth the cost”. Id.

(internal quotation marks and citation omitted). “Moreover, such

an error by counsel is neither easy to identify (since it is

necessary to evaluate a defendant’s case in order to find the

error) nor attributable to the prosecution.” Id. at 287 n.15

(internal quotation marks and citation omitted).

Our court consistently has held likewise. For example, May v.

Collins, 948 F.2d 162 (5th Cir. 1991), cert. denied, 502 U.S. 1046

-107-
(1992), rejected a presumed-prejudice claim that “the structure of

the Texas sentencing statute so forced [May’s] attorney’s tactical

decision on whether to present mitigating evidence as to result in

a constructive denial” of counsel. Id. at 167. Our court noted

that the Supreme “Court has found constructive denials of counsel

only under a few limited circumstances”. Id.

Goodwin, 132 F.3d 162, rejected a presumed-prejudice claim

where appellate counsel failed to provide the appellate court with

a suppression hearing transcript. “Cronic-type prejudice results

in circumstances in which, although counsel is present, counsel’s

ineffectiveness is so egregious that the defendant is in effect

denied any meaningful assistance of counsel at all. When the

defendant receives at least some meaningful assistance, he must

prove prejudice.” Id. at 176-77 n.10 (citation omitted). Because

Goodwin’s counsel provided some meaningful assistance on appeal,

“[t]he failure of Goodwin’s appellate counsel to read two days of

the trial record falls far short of establishing that any

deficiency in his performance precluded meaningful appellate review

entirely or in effect constituted no assistance of appellate

counsel at all”. Id. (citation omitted).

In Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997),

prejudice was presumed where counsel was appointed merely to waive

the defendant’s right to a jury trial. But, our court emphasized:

“constructive denial of counsel as described in Cronic affords only

-108-
a narrow exception to the requirement that prejudice be proved”;

and “we have consistently distinguished shoddy representation from

no defense at all”. Id. at 1229 (emphasis added). Thus, where

“the defendant has received some meaningful assistance, it [is]

necessary to prove prejudice”. Id.

Jackson v. Johnson, 150 F.3d 520 (5th Cir. 1998), cert.

denied, 526 U.S. 1041 (1999), rejected a presumed-prejudice claim

where appellate counsel failed to include challenged videotape

evidence as part of the record on appeal; Jackson could “point to

no clearly established Federal law from the Supreme Court that

says, in anything like his situation, prejudice is presumed”. Id.

at 524. Instead, “the constructive-denial claim is a very narrow

exception to the Strickland prejudice requirement”. Id. Because

Jackson’s claim involved “shoddy representation — one essential

error in the midst of otherwise adequate representation — rather

than total absence of counsel”, Jackson had the burden of proving

“the error complained of resulted in Strickland prejudice”. Id. at

525 (footnote omitted).

As a final, and recent, example, in Gochicoa v. Johnson, 238

F.3d 278 (5th Cir. 2000), our court reversed the district court’s

holding of presumed-prejudice for the defendant’s claim of

constructive denial of counsel based on counsel’s failure to object

to inadmissible hearsay and to seek disclosure of an informant’s

identity. Id. at 283-84. “[P]rejudice is presumed ... only when

-109-
the defendant demonstrates that counsel was not merely incompetent

but inert, distinguishing shoddy representation from no

representation at all. When the defendant complains of errors,

omissions, or strategic blunders, prejudice is not presumed; bad

lawyering, regardless of how bad, does not support the per se

presumption of prejudice.” Id. at 284-85 (internal quotation marks

and citation omitted). “When the defendant receives at least some

meaningful assistance, he must prove prejudice in order to obtain

relief for ineffective assistance of counsel.” Id. at 285

(internal quotation marks and citation omitted). Because counsel

had provided “some meaningful assistance”, Cronic’s constructive-

denial test was not applicable. Id.89

As the above-discussed cases demonstrate, Cronic does not

dictate the majority’s rule — far from it. More importantly, and

at the very least, when Burdine’s conviction became final in 1987,

Texas courts would not have felt compelled to presume prejudice

where Cannon slept during unidentified portions of trial, but

otherwise provided some — indeed, a great deal of — meaningful

assistance to Burdine.

89
See also Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.) (state
court’s refusal of presumed-prejudice where counsel was allegedly
suffering at trial from effects of Alzheimer’s disease was neither
contrary to, nor involved an unreasonable application of, clearly
established federal law under AEDPA), cert. denied, 121 S. Ct. 254
(2000).

-110-
 Again, the rationale for presumed-prejudice in cases involving

the denial of counsel, actual or constructive, is: the

circumstances involving the impairment of the right to counsel are

easy to identify; prejudice is so likely that a case-by-case

inquiry into prejudice vel non is not worth the cost; and, for

instances of government interference, such circumstances are easy

to prevent, because the prosecution is directly responsible. See

Robbins, 528 U.S. at 287 & n.15; Strickland, 466 U.S. at 692;

Cronic, 466 U.S. at 658. This rationale underscores the fact that,

to presume prejudice in this case entails creating a new rule,

because none of these circumstances are present.

As discussed in great detail infra, the record reflects

periods of inactivity, but not necessarily sleep, by Cannon, both

when evidence harmful to Burdine’s interests was being presented

and when uncontested evidence (such as evidence of the robbery,

which Burdine admitted committing) not harmful to his interests was

being presented. Because the presumed-prejudice claim was not

raised until 11 years after trial (as well as because he withheld

evidence), it is impossible to identify accurately, on this record,

whether those periods of inactivity reflect trial strategy or that,

instead, Cannon was asleep.

This uncertainty is demonstrated by the following example. As

part of his ineffective-assistance claim, Burdine asserted that

Cannon’s homophobic views created an unconstitutional conflict of

-111-
interest, and that his homophobia adversely affected his

performance at trial; Burdine also complained about Cannon’s

failure to object to the prosecutor’s homophobic arguments and

similar homophobic misconduct at trial. For example, to support

his presumed-prejudice claim, he notes Cannon did not object when

Burdine was asked “whether he ‘voluntarily’ remained in the

‘homosexual lifestyle’” and whether, while engaging in homosexual

sex, “he played the role of ‘man’ or ‘woman’”. But, part of

Cannon’s defense strategy was to portray Burdine as a victim of the

murder victim, Wise, an older man who, in several ways, had taken

great advantage of the much younger Burdine during their homosexual

relationship (deposited Burdine’s pay checks into his (Wise’s)

account; spent Burdine’s money; attempted to persuade Burdine to

prostitute himself). In short, such non-objection could well have

been part of Cannon’s trial strategy and not because he was asleep.

On this record, we do not, and cannot, know.

But, if Burdine’s contention that such questions are extremely

egregious and so objectionable is to be accepted, then it seems

obvious Burdine, as well as the trial judge, would have looked to

Cannon when the questions were asked, expecting an objection. If

Cannon had been asleep, they would have noticed it. And, as he

testified at the state habeas hearing, the trial judge would have

done something about it.

As noted by the majority, it was claimed somewhat recently in

United States v. Russell, 205 F.3d 768 (5th Cir. 2000), that the

-112-
taking of any evidence at trial in the absence of counsel is

prejudicial per se under Cronic. Our court stated it did “not so

hold”, declining to fashion such a rule. Id. at 771. (Teague was

not addressed in Russell.) See also Vines v. United States, 28

F.3d 1123, 1128 (11th Cir. 1994) (rejecting defendant’s contention

that taking of evidence was necessarily critical stage of trial and

refusing presumed-prejudice when no evidence directly inculpating

defendant was presented while counsel temporarily absent).

As discussed in Russell, although “Cronic does not provide

significant guidance on which parts of trial are considered

‘critical’”, 205 F.3d at 771, it does provide some guidance for

determining whether counsel’s absence is at such a stage:

First, there must be a denial of such
significance that it makes the adversary
process itself unreliable.... 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.”

Id. (quoting Cronic, 466 U.S. at 662; emphasis in original); see

also United States v. Taylor, 933 F.2d 307, 312 (5th Cir.)

(“critical stages ... are those stages of the proceeding at which

the substantial rights of a defendant may be affected”), cert.

denied, 502 U.S. 883 (1991); United States ex rel. Thomas v.

O’Leary, 856 F.2d 1011, 1014 (7th Cir. 1988) (“A critical stage is

one where potential substantial prejudice to [a] defendant’s rights

-113-
inheres in the particular confrontation and where counsel’s

abilities can help avoid that prejudice.”).

In Russell, our court concluded that Russell’s counsel’s

actual absence from the courtroom (illness) was during a “critical

stage”: the Government presented evidence implicating several of

his co-conspirators, although not directly implicating Russell.

Russell, 205 F.3d at 770-72. Under such circumstances, “[t]he

adversary process becomes unreliable when no attorney is present to

keep the taint of conspiracy from spreading to the client”. Id. at

772. But, unlike in Russell, where the evidence presented during

counsel’s absence was easily identifiable, we cannot determine from

the trial or state habeas records what evidence was being

presented, or other activity was taking place, while Cannon slept.

In rejecting the State’s contention that Burdine cannot prove

Cannon slept during a critical stage because it is impossible to

determine when the sleeping occurred, the majority states it is not

necessary for the defendant to explain how having counsel would

have altered the outcome. Maj. Op. at 23. (Obviously, this would

be tantamount to requiring proving actual prejudice in order to

receive presumed-prejudice.) As support, it cites Russell, noting

that our court did not require Russell to demonstrate that the

evidence adduced against his co-defendants during counsel’s absence

adversely impacted his defense or that the presence of his counsel

would have improved his chance of acquittal. Maj. Op. at 24. The

-114-
majority acknowledges that we do not know what specific evidence

was being presented while Cannon slept; nevertheless, it notes —

pursuant to the state-finding — that the evidence was being

presented by the State against Burdine, and posits this “at the

very least inferentially increased the taint of Burdine’s guilt

because he was the only defendant”. Maj. Op. at 24 n.7 (emphasis

in original).

But, the defendant in Russell, unlike Burdine, easily

demonstrated that his counsel was actually absent at a critical

stage of the trial, when evidence was being presented against his

co-conspirators which increased the taint of his guilt of

conspiracy. Thus, there was no need in Russell for our court to

speculate whether the evidence being presented in counsel’s absence

was potentially harmful to the defendant’s interests. In short,

our court did not require Russell to prove counsel’s presence would

have affected the outcome because it held prejudice must be

presumed.

Burdine had the burden of proving Cannon was absent, by

sleeping, during “critical stages” of trial. Because Burdine

cannot demonstrate when Cannon slept (or, by withholding evidence,

refused to attempt to do so), he has not shown it was at a

“critical stage”. The majority does not even discuss the facts of

Burdine’s case, much less the crucial point that, because Burdine

admitted robbing Wise, the State’s evidence of the robbery was

-115-
uncontested by Burdine. Instead, the majority concludes that

Burdine has established presumed-prejudice merely by demonstrating

Cannon slept (characterized as “repeatedly unconscious”) during

some unidentified, “not insubstantial” portions of the guilt-

innocence phase.

Obviously, I agree with the majority that a defendant need not

prove actual prejudice in order to establish entitlement to

presumed-prejudice. On the other hand, he must at least prove the

existence of the circumstances warranting that presumption, i.e.,

the absence of counsel at a critical stage. See Triana v. United

States, 205 F.3d 36, 43 (2d Cir.) (“Application of the per se rule

requires proof of the relevant circumstance, not speculation that

it might be true.”), cert. denied, 121 S. Ct. 378 (2000). Such

proof is lacking in this case.

The majority asserts that, as in Russell, it declines to adopt

a per se rule of presumed-prejudice for “any dozing” by defense

counsel during trial. Maj. Op. at 28. Nevertheless, despite its

disclaimer, it has, in effect, adopted a rule that the entire

guilt-innocence phase of a capital murder trial is a critical

stage, warranting presumed-prejudice whenever counsel is

“unconscious” during unidentified “not insubstantial” portions of

it, irrespective of whether the evidence being presented while

counsel slept was harmful to the defendant’s interests, or whether

counsel could have done anything to improve the defendant’s

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circumstances had he been alert. Pursuant to the majority’s rule,

any sleeping by counsel during the guilt-innocence phase of a

capital murder trial mandates presumed-prejudice. This is flatly

inconsistent with our court’s refusal to adopt a similar rule in

Russell, and underscores that the majority’s rule is “new” within

the meaning of Teague.90

As discussed supra, because of Burdine’s admission that he was

guilty of robbing the victim and was present when the murder took

place, much of the evidence presented by the State, such as

photographs of the items taken during the robbery, and evidence

that Burdine withdrew money from the victim’s bank accounts at

automatic teller machines following the murder, was not contested

by Burdine. The sleeping may have taken place during the

presentation of that evidence. We simply cannot tell from the

record, because Burdine waited nearly 11 years to bring the claim,

after memories had faded, making it impossible to identify when the

sleeping occurred. Of course, this uncertainty is greatly

exacerbated by Burdine’s withholding evidence which, as stated, the

majority does not discuss. By holding that prejudice must be

90
As described at the start of this dissent, and contrary to
Russell, the special concurrence views as a critical stage of trial
“the taking of evidence against Burdine”, Sp. Con. at 10, which it
later calls “the presentation of the evidence of guilt”. Id. at
11. That, of course, would include all evidence-presentation.
That, of course, would be a new rule.

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presumed in these circumstances, the majority has overruled Russell

and established a new rule.

Under these circumstances, and considering Teague’s goals of

finality and comity, an inquiry in this case into actual prejudice

vel non is more than worth the cost in determining that question.

And, of special importance, because neither the prosecutor nor the

trial judge was aware of Cannon’s sleeping, it could not have been

easily prevented by the State. Accordingly, Burdine seeks, and the

majority applies, a “new rule” within the meaning of Teague.

Therefore, unless his claim meets one of the narrow exceptions to

the Teague nonretroactivity principle, we are barred from

considering it.

2.

“Teague provides that a new constitutional rule can apply

retroactively on federal collateral review only if the new rule (1)

puts certain kinds of primary, private conduct beyond the power of

the criminal law-making authority to proscribe or (2) is a rule of

procedure that is implicit in the concept of ordered liberty.”

Fisher, 169 F.3d at 306 (internal quotation marks and citation

omitted). In addition, our court has recently adopted a third

narrow exception.

a.

Burdine seeks, inter alia, shelter within the second exception

— “a rule of procedure that is implicit in the concept of ordered

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liberty”. This exception is “reserved for watershed rules of

criminal procedure that implicate the fundamental fairness and

accuracy of the proceeding”. Id. Burdine asserts that both

elements of that exception are violated when a capital defendant is

denied assistance of counsel during a substantial portion of trial.

Under the circumstances of this case, including the claim’s

not being presented until nearly 11 years after trial, Burdine’s

withholding evidence, and the impossibility of identifying the

portions of trial during which Cannon slept, it is not necessary to

create a new rule of presumed-prejudice in order to promote

fundamental fairness and ensure an accurate determination of guilt

or innocence or punishment. Those goals can be achieved

satisfactorily — and with far greater assurance of accuracy — under

the Strickland actual prejudice analysis. See Tippins, 77 F.3d at

686 (“Ordinarily, episodes of inattention or slumber are perfectly

amenable to analysis under the Strickland prejudice test.”). That

is especially true here, where: Burdine, who sat beside Cannon

throughout trial, has neither stated in an affidavit nor testified

that he observed Cannon sleeping (indeed, he even withheld evidence

on this point); and the witnesses’ testimony at the evidentiary

hearing, regarding the amount of sleeping and when it occurred,

cannot be corroborated by reviewing the trial transcript.

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 b.

Burdine also claims an exception to Teague for constitutional

rights susceptible of vindication only on habeas review, asserting

that his presumed-prejudice claim could not have been raised on

direct appeal because he was represented by the same counsel who

slept during his trial (even though Burdine requested that Cannon

represent him on appeal) and that, in any event, the claim required

development of facts outside the trial record. Subsequent to oral

argument before the panel, our court, in Jackson v. Johnson, 217

F.3d 360, 364 (5th Cir. 2000), adopted a somewhat similar, quite

narrow, third Teague exception.

The Texas intermediate appellate court affirmed Jackson’s

conviction for aggravated assault. Jackson neither filed a timely

motion for rehearing with that court nor sought discretionary

review by the Texas Court of Criminal Appeals. Id. at 363. On

habeas review, Jackson claimed his attorney rendered ineffective

assistance by failing to timely file a motion for rehearing with

the intermediate appellate court. Id. at 361, 363.

Our court concluded that holding an “opportunity to file a

motion for rehearing should be considered the last step in

[Jackson’s] first appeal of right ... would surely create a new

rule” under Teague. Id. at 363-64. But, it held Jackson’s claim

satisfied “a third narrow exception to Teague, heretofore

unrecognized by the courts”. Id. at 364. “When an alleged

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constitutional right is susceptible of vindication only on habeas

review, application of Teague to bar full consideration of the

claim would effectively foreclose any opportunity for the right

ever to be recognized”. Id.91

Arguably, the right asserted by Jackson was one that could

never be raised on direct appeal. Id. at 364. In any event,

Jackson must, at the very least, be limited to its facts, so that

it does not swallow the rule announced in Teague. The holding in

Jackson has obvious, wide-ranging implications concerning the

limits mandated by Teague for habeas review, including whether the

new exception itself is Teague-barred. See note 32, supra. The

Jackson exception has not been applied since Jackson was decided in

July 2000, although it was cited in Clark v. Johnson, 227 F.3d 273,

283 n.4 (5th Cir. 2000), cert. denied, 121 S. Ct. 1129 (2001). Cf.

Soffar v. Johnson, 237 F.3d 411, 450, 452 (5th Cir. 2000) (citing

91
The Supreme Court recently reiterated: “Under Teague, a new
rule can be retroactive to cases on collateral review if, and only
if, it falls within one of two narrow exceptions to the general
rule of nonretroactivity”. Tyler v. Cain, 121 S. Ct. 2478, 2483
(2001). Moreover, Jackson’s creation of a third Teague exception
is inconsistent with our earlier decision in White v. Johnson, 79
F.3d 432, 440 (5th Cir.), cert. denied, 519 U.S. 911 (1996), which
held Teague precluded announcement of a new and retroactive
procedural rule that a 17-year period of incarceration on death row
would violate the Eighth Amendment. Our court expressly rejected
White’s contention that Teague should not bar his claim because it
could not have been raised on direct appeal due to the fact that
much of the delay complained of arose during post-conviction
proceedings: “Even if we accept White’s assertion that he could
not have raised [the] claim on direct review, we must still find it
barred by Teague”. Id. at 438.

-121-
Jackson, but referring to “either of the two exceptions to

nonretroactive applicability”), vacated, 253 F.3d 227 (5th Cir.

2001).

Moreover, to accept Burdine’s contention that the Jackson

exception applies because he could not raise his claim on direct

appeal (because Cannon was also his appellate counsel) could lead

to great procedural abuse. A defendant will know his lawyer was

asleep during trial, but may hope nevertheless to receive a

favorable verdict, and therefore does not want a new trial.

Accordingly, he decides to take no action at trial about the

sleeping. If the verdict is unfavorable, the defendant may remain

silent about the sleeping and, as in this case, have that lawyer

represent him on appeal (who better to do so?), the defendant still

hoping to prevail and, therefore, post-trial, not bringing up the

sleeping for fear it might result in an unwanted new trial. But,

if he loses on appeal, the defendant on habeas can finally raise —

and under the majority’s new rule perhaps receive a new trial on —

the matter about which he was aware — and indeed permitted — when

it occurred years before at trial — his lawyer’s sleeping, about

which he then said not a word! Obviously, this totally undermines

the goal of finality.

Some might view this as an extreme, perhaps absurd, scenario.

Perhaps so. More likely not. See Tippins, 77 F.3d at 688 (noting

“[l]awyers may sometimes affect a drowsy or bored look to downplay

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an adversary’s presentation of evidence” and “a per se rule would

‘give ... unscrupulous attorneys a delayed-trigger weapon to be

sprung at some later strategic phase of the proceeding if events

developed very badly for a defendant’” (quoting People v. Winkler,

71 N.Y.2d 592, 598, 528 N.Y.S.2d 360, 363, 523 N.E.2d 485, 488

(1988))); Prada-Cordero v. United States, 95 F. Supp. 2d 76, 81-82

(D.P.R. 2000) (“court should be cognizant that attorneys may use

the appearance of sleep as a strategic tool to downplay the

importance of an adversary’s presentation”; “[m]oreover, a rule

that required a finding of prejudice whenever an attorney slept

during a trial would provide unscrupulous practitioners with a

safety valve to annul trials that they feel they are at risk of

losing”).

This is what will be permitted by presumed-prejudice based on

this record. Courts already have concerns about some of the

tactics utilized by criminal defendants and their counsel,

especially in capital cases. Why would this court add to the

avenues for abuse of court processes unless there is a clear-cut,

compelling, constitutionally-required reason to do so? On this

record, that reason is not before us.

Burdine requested that Cannon be appointed to represent him on

appeal. On 26 March 1984, approximately two months after he was

sentenced, he wrote to the trial judge asking, unsuccessfully, that

Cannon be replaced; nevertheless, he then stated: “My family and

I still feel Mr. Cannon done [sic] the best he could during the

-123-
trial”. This was consistent with his earlier praise to Cannon. In

a letter dated 30 January 1984, the day the jury rendered its

verdict in the penalty phase, Burdine wrote to Cannon: “with what

little defense we had to work with, I don’t feel in my heart that

you could have done a better job defending me”. A week later, he

again wrote to Cannon: “again let me emphasize my satisfaction in

your representation of me during the trial.... [W]ith what little

we had to work from, I expected a sentence of this nature, although

a life sent[ence] would have been more relaxing”.

On this record, especially in the light of the recent

admission, Burdine’s request that Cannon represent him on appeal

may well constitute a forfeiture or waiver of Burdine’s presumed-

prejudice claim. In the now vacated panel majority opinion, we

concluded that this request did not constitute a waiver. 231 F.3d

at 957. But, that was before Burdine’s habeas counsel’s subsequent

admission to our en banc court that he withheld evidence: that,

during trial, Burdine nudged Cannon. This amply demonstrates

Burdine knew — as would anyone — that Cannon should not be

sleeping, that he should be participating. Nevertheless, despite

this knowledge, Burdine voluntarily asked for Cannon to represent

him on appeal. This is a classic case of forfeiture or waiver of

this, and possibly other, ineffective assistance claims tied to

Cannon’s sleeping. See United States v. Olano, 507 U.S. 725, 733

(1993) (“Waiver is different from forfeiture. Whereas forfeiture

is the failure to make the timely assertion of a right, waiver is

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the intentional relinquishment or abandonment of a known right.”

(internal quotation marks and citations omitted)). Again, this

recent admission has totally changed the landscape for this

presumed-prejudice claim.

Although the majority apparently is not concerned about this

withheld-evidence, much less its effect, I am troubled greatly, to

say the least, by wide-ranging abuses that can result where, as

here, a criminal defendant sits next to counsel during trial; makes

no mention then of counsel’s sleeping; requests that the same

counsel represent him on direct appeal; and then, over ten years

after trial, claims presumed-prejudice because counsel slept during

trial, despite defendant’s never, by affidavit or testimony,

stating under oath counsel engaged in such conduct. Obviously, the

recent extra-judicial admission is even more troubling.

Burdine contends, alternatively, that, on direct appeal, he

could not have asserted the claim now at issue because it required

development of facts outside the trial record. But, Burdine sat

next to Cannon throughout trial. Based on his recent admission,

Burdine was certainly aware at trial of Cannon’s sleeping and,

other than nudging Cannon, took no action then to try to correct

it. In the light of his concern, he likewise could have brought

Cannon’s sleeping to the attention of the trial court during trial,

which may, at the very least, have allowed development of the facts

at that time. As noted, the trial judge testified at the state

habeas hearing he would have stopped the trial if he had noticed

-125-
Cannon sleeping. Or, Burdine could have otherwise advised the

trial judge or a family member. Along this line, perhaps Cannon’s

sleeping could have been the basis for a new trial.

Therefore, especially in the light of the recent withheld-

evidence admission, the quite narrow Teague-exception adopted in

Jackson is not applicable: Burdine’s claim is not one that could

never be raised on direct appeal under any circumstances.

Restated, the alleged constitutional right he claims is not

“susceptible of vindication only on habeas review”. Jackson, 217

F.3d at 364 (emphasis added).

B.

The majority’s short-lived “new” rule does not fall within any

exception to Teague. But, even assuming the rule is not new,

Burdine still is not entitled to presumed-prejudice under the facts

and circumstances of this case.

1.

The majority holds a constructive denial of counsel occurs

when defense counsel is “repeatedly unconscious through not

insubstantial portions” of the guilt-innocence phase of a capital

murder trial, warranting presumed-prejudice. Again, there is no

state-finding that Cannon was “repeatedly unconscious” for either

“substantial” or “not unsubstantial” portions; the Court of

Criminal Appeals expressly rejected the trial court’s recommended

conclusion, which used the word “substantial” in describing

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Burdine’s “allegation”; and the only presumptively correct, and

therefore binding, somewhat specific state-finding is that Cannon

“dozed and actually fell asleep 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”. Ex parte Burdine, No. 379,444-B, at 13.

As discussed supra, the Supreme Court has articulated three

reasons for presuming, rather than requiring proof of, prejudice

for actual or constructive denial of counsel: (1) “[p]rejudice in

these circumstances is so likely that case-by-case inquiry into

prejudice is not worth the cost”, Strickland, 466 U.S. at 692; (2)

“such circumstances involve impairments of the Sixth Amendment

right that are easy to identify”, id.; and (3) where “the

prosecution is directly responsible”, such circumstances are “easy

for [it] to prevent”, id.; see also Robbins, 528 U.S. at 287 &

n.15; Cronic, 466 U.S. at 658.

In the light of the circumstances of this case, none of those

justifications supports presumed-prejudice. First, as the state

court found, neither the prosecutor nor the trial judge was aware

of Cannon’s sleeping. And, although Burdine’s counsel now

maintains Burdine nudged Cannon during trial, Burdine at trial (and

counsel on habeas) withheld that evidence. Accordingly, the State

could not have easily prevented the sleeping. Thus, the basis on

which Tippins was distinguished in Morales v. United States, 143

-127-
F.3d 94, 97 (2d Cir. 1998) (“[a] lawyer asleep in open court has

abandoned his client in front of the judge and the prosecutor; his

ineffectiveness and helplessness are therefore both ‘easy to

identify’ and ‘easy for the government to prevent’” (citation

omitted)), is not applicable in the case at hand.

Second, the claimed prejudice is not easy to identify, just

the opposite. The claim was not raised until over ten years after

trial, after it was first raised by another death row inmate.

Therefore, a determination of precisely when counsel slept has been

rendered impossible due to the passage of time and the lack of any

indication in the trial transcript, discussed infra, as to when the

conduct occurred. Nor can it be determined from the witnesses’

testimony at the state evidentiary hearing. Accordingly, it is

impossible to determine whether, for example, Cannon slept during

the presentation of crucial, inculpatory evidence, or during the

introduction of unobjectionable, uncontested evidence.

Finally, for circumstances where, as here, counsel sleeps for

unidentified portions of a trial, prejudice is not so likely that

case-by-case inquiry into prejudice is not worth the cost. Again,

the majority states that its rule “is limited to the egregious

facts found by the state habeas court in this case”. Maj. Op. at

28. But, as noted, the state habeas court made no finding that

Cannon’s dozing and sleeping rose to the level of unconsciousness,

and, in any event, no finding quantifying the amount of sleeping or

what evidence was then being presented. Had the state habeas court

-128-
actually found that Cannon was repeatedly unconscious during a

substantial portion of trial, presumed-prejudice might well be

warranted.

In the absence of such findings, however, the only way to

determine whether the facts actually found by the state habeas

court are “egregious” is to conduct a detailed, painstaking

examination of the record. In circumstances such as these, where

the sleeping is not noticed by the trial judge or prosecutor, and

where there is no way to easily and quickly determine from either

the trial or post-conviction record when the sleeping occurred, and

where there are no presumptively correct state-findings regarding

the soundness or depth of the sleep or when it occurred, the

majority’s rule cannot be applied without closely examining the

record. Otherwise, how can a reviewing court determine either that

the sleep was deep enough to reach a state of “unconsciousness”, or

that it occurred for “not insubstantial portions” of the trial, or

both?

Again, such examination precludes presumed-prejudice, because

“once it is necessary to examine the trial record in order to

evaluate counsel’s particular errors, resort to a per se

presumption is no longer justified by the wish to avoid the cost of

case-by-case litigation”. Scarpa v. DuBois, 38 F.3d 1, 14 (1st

Cir. 1994) (refusing presumed-prejudice where defense counsel’s

argument effectively conceded only disputed elements of charged

crimes), cert. denied, 513 U.S. 1129 (1995).

-129-
 [T]here are real dangers in presuming
prejudice merely from a lack of alertness.
Prolonged inattention during stretches of a
long trial (by sleep, preoccupation or
otherwise), particularly during periods
concerned with ... uncontested issues, or
matters peripheral to a particular defendant,
may be quantitatively substantial but without
consequence. At such times, even alert and
resourceful counsel cannot affect the
proceedings to a client’s advantage.

Tippins, 77 F.3d at 686. Tippins observed, however, that prejudice

becomes “‘inherent’ at some point, ‘because unconscious or sleeping

counsel is equivalent to no counsel at all’”. Id. (quoting Javor,

724 F.2d at 834). The court concluded “that Tippins suffered

prejudice, by presumption or otherwise, if his counsel was

repeatedly unconscious at trial for periods of time in which

defendant’s interests were at stake”. Id. at 687. But, again,

there are no state-findings in this case that Cannon was

“repeatedly unconscious” for periods of the trial “in which

[Burdine’s] interests were at stake”.

For many cases allowing presumed-prejudice, the circumstances

justifying that presumption are quickly, easily, and clearly

discernible. See, e.g., Geders, 425 U.S. at 91 (court prevented

defendant from consulting with counsel during overnight recess

between defendant’s direct and cross-examination); Davis v. Alaska,

415 U.S. 308, 318 (1974) (presumed-prejudice where defendant denied

right of effective cross-examination); Hamilton, 368 U.S. at 55

(defendant denied counsel at arraignment); Hughes v. Booker, 220

-130-
F.3d 346, 352 (5th Cir. 2000) (attorney withdrew from

representation of defendant on appeal without filing sufficient

brief); Russell, 205 F.3d at 770-72 (testimony implicating

defendant in conspiracy presented during counsel’s two-day absence

due to illness); Blankenship v. Johnson, 118 F.3d 312, 317 (5th

Cir. 1997) (appointed counsel did “nothing whatsoever” on state-

requested discretionary appeal).92

92
For additional instances of such presumed-prejudice, see,
e.g., Harris v. Day, 226 F.3d 361, 362 (5th Cir. 2000) (counsel on
direct appeal filed “errors patent” brief and subsequently
withdrew, filing brief that failed to mention any arguable issues);
Childress, 103 F.3d at 1231-32 (defense counsel appointed solely to
execute defendant’s waiver of jury trial and performed no other
service for defendant); Taylor, 933 F.2d at 312 (court denied
defendant’s request to withdraw waiver of counsel and defendant
assisted by standby counsel at sentencing); Hall v. Moore, 253 F.3d
624, 628 (11th Cir. 2001) (denial of counsel at non-ministerial
second re-sentencing); Appel v. Horn, 250 F.3d 203, 216(3d Cir.
2001) (counsel conducted no investigation of competency of client);
Cone v. Bell, 243 F.3d 961, 979 (6th Cir. 2001) (counsel offered no
evidence in mitigation and made no argument prior to sentencing);
United States v. Patterson, 215 F.3d 776, 785-86 (7th Cir.)
(counsel absent multiple days of trial at which defendant was
accused of conspiring with other defendants), vacated in part on
other grounds, 121 S. Ct. 621 (2000); Frazer v. United States, 18
F.3d 778, 783 (9th Cir. 1994) (presumed-prejudice if appointed
counsel called defendant “stupid nigger son of a bitch” and
threatened to provide substandard performance if defendant chose to
exercise right to trial); United States v. Swanson, 943 F.2d 1070,
1071-74 (9th Cir. 1991) (during closing argument, counsel conceded
no reasonable doubt existed as to only factual issues in dispute);
Harding v. Davis, 878 F.2d 1341, 1345 (11th Cir. 1989) (counsel
failed to object when trial court directed verdict against
defendant); Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir.
1985) (counsel absent during jury deliberations and return of
verdict); Martin v. Rose, 744 F.2d 1245, 1250-51 (6th Cir. 1984)
(counsel refused to participate in trial because believed
erroneously such participation would waive pretrial motions or
render their denial harmless error).

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 Moreover, and as should be quite obvious by now, the presumed-

prejudice exception is an extremely narrow one. See Childress, 103

F.3d at 1229 (“constructive denial of counsel as described in

Cronic affords only a narrow exception to the requirement that

prejudice must be proved”); Craker, 805 F.2d at 542 (“A

constructive denial of counsel occurs ... in only a very narrow

spectrum of cases where the circumstances leading to counsel’s

ineffectiveness are so egregious that the defendant was in effect

denied any meaningful assistance at all.” (internal quotation marks

and citation omitted)); Hollenback v. United States, 987 F.2d 1272,

1275 (7th Cir. 1993) (“cases in which an inherently prejudicial

constructive absence of counsel has been found involve particularly

egregious conduct that is the functional equivalent of actual

absence of counsel”).

Prejudice has not been presumed for claims of denial of

effective-assistance due to counsel’s alleged impairment because of

alcohol, drug use, or a mental condition. See, e.g., Burnett v.

Collins, 982 F.2d 922, 928-30 (5th Cir. 1993) (alcohol abuse);

Berry v. King, 765 F.2d 451, 454 (5th Cir. 1985) (addiction to

illegal drugs), cert. denied, 476 U.S. 1164 (1986); Buckelew v.

United States, 575 F.2d 515, 521 (5th Cir. 1978) (poor health);

Dows v. Wood, 211 F.3d 480, 485-86 (9th Cir.) (Alzheimer’s

disease), cert. denied, 121 S. Ct. 254 (2000); Smith v. Ylst, 826

F.2d 872, 875-76 (9th Cir. 1987) (mental illness), cert. denied,

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488 U.S. 829 (1988); Hernandez v. Wainwright, 634 F. Supp. 241, 245

(S.D. Fla. 1986) (intoxication during trial), aff’d, 813 F.2d 409

(11th Cir. 1987).

The majority distinguishes those cases on the basis that,

unlike a drunk or drugged lawyer, who “exercises judgment, though

perhaps impaired” (to say the least; such “impaired judgment” may

well be worse than none at all), an unconscious lawyer (according

to the majority, because he is sleeping) is not capable of

exercising any judgment. Maj. Op. at 27-28. The majority

maintains such an unconscious attorney is no different from one who

is physically absent. The flaw in its analysis is that it assumes,

without any state-finding or record evidence, that Cannon was

always so deeply and soundly asleep that he was always

“unconscious”.93 As also discussed, the state-finding that Cannon

“dozed and actually fell asleep” does not support the majority’s

characterizing each episode as “unconsciousness”. In any event, as

discussed infra, and in the context of Cannon’s otherwise quite

meaningful assistance to Burdine, Burdine was not denied counsel.

Javor and Tippins do not fit comfortably within the framework

of cases in which prejudice has been presumed. Nevertheless, as

discussed supra, both are distinguishable from the circumstances at

hand. In Javor, there was evidence that counsel slept during a

substantial portion of trial; counsel failed to participate when

93
See note 2, supra.

-133-
evidence against the defendant was being presented; counsel had

stated to counsel for a co-defendant that he had missed some of the

testimony; other counsel often “nudged” and “kicked” counsel to

awaken him; and the judge was at times concerned about counsel’s

inattentiveness. Javor, 724 F.2d at 833-34. In Tippins, there was

evidence that Tippins’ counsel slept every day of the trial,

including during the testimony of a critical prosecution witness

and during damaging testimony by a co-defendant; and the sleeping

was noticed by both the trial judge and prosecutor, as well as

jurors and witnesses, some of whom even heard him snoring.

Tippins, 77 F.3d at 687-89.

In contrast, Cannon’s sleeping was not nearly so obvious. His

sleeping, although noticed by the court clerk and several jurors,

went unnoticed by the trial judge and prosecutor. As detailed

infra, the trial transcript reflects few long passages without some

activity by Cannon. Again, despite Burdine’s federal habeas

counsel’s admitting, at en banc oral argument, that he withheld

evidence that Burdine at times nudged Cannon during trial to try to

awaken him, Burdine, who sat next to Cannon throughout trial, has

never stated by affidavit or testified that he observed Cannon

sleeping or dozing during trial. In fact, as also noted, at the

conclusion of trial Burdine requested that Cannon be appointed to

represent him on direct appeal and, post-trial, was very

complimentary of Cannon’s representation of him at trial.

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 Some of the evidence presented against Burdine, such as

photographs of the items taken from the murder/robbery victim, was

not contested and, in the light of Burdine’s admission that he

participated in the robbery, but not the murder, was not harmful to

his interests. At this stage, we simply do not know, and cannot

ever know on this record as it now stands, whether the sleeping

occurred during the presentation of that evidence, or whether it

occurred when other, inculpatory, evidence was being presented. To

presume prejudice under these circumstances requires not only the

creation of a new rule, but also requires unbridled speculation,

with no possibility of accuracy. Again, it is more than worth the

cost to determine whether there was actual prejudice. This could

be done on remand.

2.

The following review of the record on appeal demonstrates that

presumed-prejudice for Burdine is bottomed on speculation, rather

than, as required, on extremely easy to identify instances where

prejudice is extremely likely.94 Again, this case should be

94
The special concurrence maintains: a “search for the precise
evidence that came in as Burdine’s counsel slept” is contrary to
its view of “trial dynamics and reality” and “not the way it
works”, Sp. Con. at 11; “[a] lawyer’s absence during substantial
portions of testimony cripples his ability to cross-examine the
witnesses and impairs his ability to present the defense case and
jury arguments”, id. (emphasis added); “the effort to persuade a
jury not to vote for death often runs, as here, throughout the
guilt phase of the trial”, id.; and a message of just “going
through the motions” “is sent to the jury when” the trial continues
while “defense counsel sleeps”, id. at 12. For starters, there is
no support in the record for the jury’s receiving such a message or

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remanded for the district court to conduct a review for actual

prejudice vel non, as well as to consider the numerous other issues

raised by Burdine.

Voir dire took seven days. The balance of the trial lasted

six: three for presentation of evidence at the guilt-innocence

phase; one during which the jury was charged, closing arguments

were made, and the jury reached its verdict for that phase; one for

presentation of evidence in the penalty phase; and one during which

the jury was charged, closing arguments were made, and the jury

reached its verdict for that phase.

Strickland, the jury foreman, testified at the state habeas

evidentiary hearing that: on several occasions at trial, Cannon

appeared to “nod off” or “doze”; he noticed the dozing “more than

two, but maybe not more than five times”; the dozing occurred

during the guilt-innocence phase, typically in the afternoon, after

the lunch recess, when witnesses were being questioned or other

for Cannon’s being absent, through sleep, for “substantial portions
of testimony”. (Emphasis added.) As for cross-examination and
other defense conduct being adversely affected, much of the
evidence was not contested; again, Burdine admitted the robbery and
being present at the murder. Regarding “the way it works” at
trial, it goes without saying that asking unnecessary questions can
lead to disaster. And, as for “trial dynamics and reality”
concerning the requirement, for presumed-prejudice, that there be
identification of the sleep episodes, the immediate answer lies in
the claim presented: presumed, not actual, prejudice. Again,
before presumed-prejudice can be granted, the highlighted
episode(s) of alleged prejudice must be easily identifiable and the
prejudice must be so likely that it is not worth the cost of
litigating the issue. This is not a rule pulled from thin air by
this dissent. It is a rule dictated by the Supreme Court and
grounded on strong, obvious policy considerations.

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evidence was being presented; and the episodes were for 30 seconds

or less.

Davis, another juror, testified at the hearing that she

noticed Cannon repeatedly falling asleep during “quite a bit” of

the guilt-innocence phase, especially during the afternoons of the

second and third days of testimony.

Another juror, Engelhardt, testified that: on five or ten

occasions, covering both phases of trial, he noticed Cannon

“nodding” or “dozing”; and, on one occasion, Cannon had his eyes

closed and his head bowed for at least ten minutes. But,

Engelhardt could not remember what was occurring at the time of the

incidents or whether they were in the morning or afternoon.

Berry, a court clerk who assisted the trial judge, testified

that: she witnessed Cannon sleeping “a lot” and “for long periods

of time” during questioning of witnesses; the longest instance was

at least ten minutes; and there were “lots of incidents” when

Cannon dozed for shorter periods.

As discussed below, an obvious possible critical stage would

be the ten-minute period, or periods, during which, according to

two witnesses, Cannon slept; but, as noted, that period, or those

periods, cannot be tied to a particular point during the trial.

Examining the trial transcript and minutes in conjunction with the

above-described testimony, it is impossible to determine when

Cannon slept, much less whether he did so during the presentation

of contested, inculpatory evidence. Burdine concedes this.

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 The presentation of evidence commenced at 10:50 a.m. on

Monday, 23 January 1984. The State’s first witness, a homicide

detective, testified about his investigation of the murder and the

discovery of the victim’s body. Direct examination was completed

when the court recessed at noon for lunch, and covers pages 27-80

of the transcript. The transcript and minutes reflect the

following activity involving Cannon during that direct examination:

he objected (page 43); the jury retired while the court reporter

marked 34 exhibits (pages 45-46); Cannon requested time to examine

photographs and, at 11:22 a.m., outside the presence of the jury,

made objections to some of the exhibits (pages 50-53); the jury

returned at 11:29 a.m. (page 54); Cannon objected (pages 69-70);

and Cannon questioned the witness on voir dire (pages 73-79).

Trial resumed at 1:30 p.m., Cannon’s cross-examination of the

homicide detective covering pages 83-90 of the transcript. The

State’s redirect is at pages 90-98, with Cannon speaking on the

record at 91, 92, 95, and 97. Cannon’s recross is at 99-101;

further redirect, at 101-02.

The State’s next witness, the medical examiner, testified

regarding the victim’s wounds and cause of death. For the direct

examination, which covers pages 103-19, Cannon objected at 109 and

118; his cross-examination covers pages 119-23. The State’s

redirect covers 123-29, interrupted at 126-27 by a bench conference

requested by Cannon. Cannon conducted recross at page 130. A

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bench conference outside the hearing of the court reporter was

conducted at page 131.

The State’s final witness for the first day of testimony was

a detective, who testified about tracing the victim’s stolen gun.

The direct examination covers pages 131-37; Cannon’s cross, 137-38.

After the jury was excused for the day (2:57 p.m.), the trial judge

began the previously discussed suppression hearing on the

admissibility of Burdine’s confession. That hearing began at 3:37

p.m., and covers pages 141-86. The first witness, called by the

State, was a detective who went to California and participated in

obtaining Burdine’s confession. Direct examination covers pages

141-62, interrupted by Cannon’s objections at 143-44, and 149;

Cannon’s cross-examination, 162-66; and further questioning by the

court, 166-67.

After the State announced it had no other witnesses for the

suppression issue, Cannon advised the court, at 168, that he

intended to call Burdine for the limited purpose of testimony

regarding the confession. Burdine’s direct examination covers

pages 169-80; cross, 180-84. Cannon announced he had nothing

further to present, at 184-85, and the hearing was recessed for the

day.

The suppression hearing continued the following morning,

Tuesday, 24 January, and covers pages 190-203. The State called

another detective who participated in obtaining Burdine’s

confession. Direct examination covers pages 191-93; cross by

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Cannon, 193-94. Cannon recalled Burdine as a witness, at 194.

Direct examination covers pages 195-96; there was no cross-

examination. Cannon presented argument on the motion to suppress

at 197-99; the State, 199-201. After the court announced its

findings and conclusions, at 201-02, Cannon stated, at 203, he had

nothing further to present in connection with the motion.

Following completion of the suppression hearing that morning,

the State’s presentation of evidence resumed (10:17 a.m.). The

State’s first witness was the manager of the pawn shop where, after

the murder, Burdine pawned a ring. Direct examination covers pages

204-10; cross, 210-12.

The next witness on this second day of testimony, a bank

security administrator, authenticated a tape showing Burdine, after

the murder, withdrawing money from an automatic teller machine.

Direct examination covers pages 212-19, and includes showing the

tape to the jury. At page 216, Cannon stated he had no objection

to the tape; at 220, no questions for that witness.

The State’s next witness was an automatic teller machine

coordinator for a credit union where, after the murder, Burdine

withdrew money from the victim’s account. The direct examination

covers pages 220-23. At 223, Cannon stated he had no questions for

the witness, and a bench conference was conducted outside the

hearing of the court reporter. At pages 224 and 226, Cannon stated

that he had no objections to the tape of that transaction.

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 The State’s next witness was the owner of the California shop

where, post-murder, Burdine sold the victim’s gun. The direct

examination covers pages 226-36, interrupted by Cannon’s objections

at 229 and 235. At 236, Cannon stated he had no questions for the

witness. At 237, a bench conference was conducted outside the

hearing of the court reporter.

The State recalled its first witness from the first day of

testimony, the homicide detective. He testified about Burdine’s

confession in California. Direct examination was conducted until

the court recessed for lunch at 11:53 a.m. (page 257), and

continued when trial resumed at 1:48 p.m.; it covers pages 237-63.

For the pre-noon-recess testimony, covering 237-57, the record

reflects activity by Cannon at 255 and 256; following the recess,

at 259-60 and 262. Cannon’s cross-examination appears at 264-75.

The State’s redirect, at 276-81, was interrupted by an objection by

Cannon (page 278). Cannon’s recross covers 281-83.

The State’s next witness, a receptionist at the security

service where both the victim and Burdine worked, testified

regarding Burdine’s use of an alias during that employment. Direct

examination covers pages 283-90; at 287, Cannon stated he had no

objection to an exhibit. His cross-examination covers 291-92.

The next witness was the California detective who arrested

Burdine. Direct examination covers pages 293-302. Cannon

requested a bench conference, and the court was in recess from 2:46

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until 3:24 p.m. Cannon cross-examined the witness on page 304,

after which another bench conference was conducted.

The final witness for the second day of testimony was the

victim’s roommate, who testified about his relationships with the

victim and Burdine, his discovery of the victim’s body, and various

items of property taken in the robbery. Direct examination covers

305-37, interrupted by one objection by Cannon at 316.

During that direct examination, and at the request of a juror,

court was in recess from 4:05 until 4:16 p.m. Thereafter, Cannon

cross-examined the witness at pages 337-49. The State’s redirect

covers pages 349-52; Cannon’s recross, 353-54. After the State

rested at 4:31 p.m., the jury was excused for the day.

On Wednesday, 25 January, the third day of testimony, Cannon

moved for an instructed verdict (judgment of acquittal) outside the

presence of the jury. At 10:17 a.m., when the jury returned, the

State re-opened to offer exhibits, and again rested. Burdine

testified on direct examination at pages 363-418. (As an example of

inactivity not equating with sleep, the prosecutor was silent for

36 pages during Burdine’s direct examination, except for a brief

request for some testimony to be read back.) Burdine’s cross-

examination, at 419-90, was interrupted by a bench conference, at

page 485, and the noon recess, which lasted from 12:38 until 2:20

p.m. Only the last five pages of the State’s cross-examination

were conducted following the recess. Cannon conducted redirect of

Burdine at pages 491-95. Burdine rested at 2:33 p.m.

-142-
 In rebuttal, the State called another detective, who testified

regarding Burdine’s confession in California. The State’s direct

examination covers pages 496-512, interrupted by objections by

Cannon at 504, 507, and 508-09. Cannon’s cross-examination covers

513-15. Following a very brief redirect examination by the State,

Cannon requested a bench conference (pages 517-18), which lasted

from 2:56 until 3:12 p.m., following which the State rested.

Cannon then called one additional witness. After both sides rested

at 3:15 p.m., the jury was excused for the day.

The next day of trial (after three days of testimony) began at

10:50 a.m. on Thursday, 26 January. After the charge was read to

the jury, the State presented its initial closing argument from

11:02 until 11:37 a.m.; Cannon presented closing argument from

11:37 a.m. until 12:07 p.m.; and the State presented its final

closing argument from 12:07 until 12:15 p.m., following which the

jury retired to deliberate. The jury returned a guilty verdict at

2:10 p.m., and court recessed for the day.

Penalty phase proceedings began at 10:30 a.m. the next day,

Friday, 27 January. The State presented the testimony of four

witnesses between 10:30 and 11:05 a.m., covering pages 607-36, and

then rested. The record reflects activity by Cannon at 608, 609,

616, 618, 621, 622-23, 624, 625-26, 626, 627, 629, 631, and 635-36.

Following a recess, court reconvened at 11:28 a.m., at which time

Burdine rested without presenting any evidence. Court was recessed

until the following Monday.

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 On Monday, 30 January, proceedings commenced at 10:40 a.m.,

when the penalty-phase charge was read to the jury. The State

presented argument from 10:45 until 11:15 a.m.; Cannon, 11:15 until

11:44 a.m.; and the State, 11:44 until 11:53 a.m. The jury retired

to deliberate and reach a verdict on the penalty. As reflected in

this quite detailed examination of the trial transcript, there are

very few long stretches of transcript in which no activity by

Cannon is reflected. Portions of the transcript reflecting no such

activity involve the presentation of contested, inculpatory

evidence, as well as uncontested testimony and exhibits, where

Cannon’s attentive participation was irrelevant to the quality of

Burdine’s defense.

For example, during direct examination of the first witness

for the State, the prosecution introduced 31 crime scene

photographs and questioned the witness about each one individually.

Although the record reflects no activity by Cannon at 55-65, he had

already examined the photographs outside the presence of the jury;

he had objections to only six of the photographs; and the court had

already overruled those objections.

Following the lunch recess on the second day of trial, the

prosecution introduced 46 photographs of property recovered after

Burdine’s arrest, and questioned the detective about whether each

photograph accurately depicted the items found. Those photographs

were admitted into evidence without objection. The prosecutor

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questioned Wise’s roommate about much of that same photographic

evidence.

Another period during which no activity is reflected for

Cannon was the State’s cross-examination of Burdine. As noted, for

the 72 pages of cross, only five follow the lunch recess, when

Cannon’s sleeping might have been more likely. As also noted,

Cannon’s defense strategy was that the acts of violence were

committed by McCreight; and that Wise had taken advantage of

Burdine in the homosexual relationship, by depositing Burdine’s pay

checks into his (Wise’s) account, spending Burdine’s money, and

attempting to persuade Burdine to prostitute himself.

Obviously, when a criminal defendant elects to testify, a

great number of trial strategy considerations, including frequency

of objections during cross-examination, come into play. In fact,

these considerations parallel those championed by Burdine’s counsel

at en banc oral argument in seeking to justify his reason for

withholding the crucial evidence of Burdine’s nudging Cannon during

trial.

That there were a great number of such competing

considerations for the trial of this case is especially true, on

the facts in this case, with Burdine’s admitting being present at

the murder. For example, as discussed supra, Cannon did not object

when, on cross, Burdine was asked about a possible characteristic

of a homosexual relationship; this decision arguably was consistent

with his defense strategy. Moreover, to have objected at certain

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points might have caused the jury to believe Cannon was trying to

prevent Burdine from presenting relevant information; on the other

hand, Cannon’s not objecting might have been understood by the jury

as showing Burdine had nothing to hide. Deciding whether to object

is, in many instances, simply a classic example of trial strategy.

As noted, during Burdine’s direct examination, the prosecutor

remained silent throughout 36 pages, except for a single request

for testimony to be read back.

As the foregoing review of the record demonstrates, it is

possible that unobjectionable evidence (or evidence which Cannon

was already anticipating) may have been introduced while Cannon

slept, without having a substantial effect on the reliability or

fairness of Burdine’s trial. Notwithstanding Cannon’s sleep

episodes, he provided at least some — indeed, as noted, a great

deal of — meaningful assistance to Burdine and more than subjected

the prosecution’s case to “meaningful adversarial testing”.

Cronic, 466 U.S. at 659.

Along this line, and as discussed, although he ultimately was

unsuccessful, Cannon vigorously contested the admissibility of

Burdine’s confession. Once the confession was admitted, Burdine’s

guilt was, for all intents and purposes, firmly established. In

the light of Burdine’s admissions in that confession and in his

subsequent trial testimony that he was present during the robbery,

knew it would occur, and witnessed part of Wise’s murder, much of

the evidence introduced by the State, especially evidence of the

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robbery, was essentially duplicative. Moreover, Cannon still

sought to establish, through Burdine’s testimony, that the

confession, although already admitted in evidence, was coerced and

inaccurate. He continued to press that point on direct appeal,

again unsuccessfully.

In sum, Cannon’s sleeping during unidentified portions of

Burdine’s trial did not result in its losing its character as a

confrontation between adversaries, nor did it render the trial

fundamentally unfair. Because Cannon provided meaningful

assistance to Burdine, prejudice vel non to Burdine’s defense,

resulting from Cannon’s sleeping, should be established under

Strickland’s two-prong test: Burdine should be required to

demonstrate a reasonable probability that the outcome of the trial

would have been different if, during the periods in which the

transcript reflects no activity by Cannon, he had taken some

action.

V.

Presumed-prejudice should be rejected out of hand because of

the withholding-evidence tactic employed by Burdine’s habeas

counsel. (Concomitantly, our remand instructions should include

for the district court to hold an evidentiary hearing on that

tactic.) In the alternative, the claim fails: it is Teague-

barred. But, even if the claim is not barred, presumed-prejudice,

on this record, cannot be granted. I respectfully dissent.

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