Chaddrick Levell Thomas v. United States

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 30, 2008
No. 08-11543 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket Nos.
07-00561-CV-T-24-TBM & 03-00162-CR-T-2
CHADDRICK LEVELL THOMAS,
Petitioner-Appellant,
versus
UNITED STATES OF AMERICA,
Respondent-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
_________________________
(December 30, 2008)
Before ANDERSON, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
Chaddrick Thomas, a federal prisoner who was convicted in 2003 on two
counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), two
counts of brandishing a firearm during a crime of violence, in violation of 18
U.S.C. § 924(c), and one count of conspiracy to possess, brandish, and discharge a
firearm during a crime of violence, in violation of 18 U.S.C. § 924(o), appeals the
district court’s denial of his 28 U.S.C. § 2255 motion. The district court granted a
certificate of appealability as to whether Thomas’s “sleeping counsel” claim
constituted ineffective assistance of counsel.
On appeal, Thomas argues the district court erred by requiring Thomas to
prove he was prejudiced by trial counsel’s sleeping. Alternatively, Thomas argues
he established prejudice because the jurors’ observations of counsel adversely
affected the verdict. Thomas further contends the district court erred by not
conducting an evidentiary hearing. We address each issue in turn, and affirm the
district court’s denial of Thomas’s § 2255 motion.
I.
With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to
vacate, we review legal conclusions de novo and findings of fact for clear error.
Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). An ineffective
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assistance of counsel claim is a mixed question of law and fact, subject to de novo
review. Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).
“[T]he right to counsel is the right to the effective assistance of counsel.”
Strickland v. Washington, 104 S. Ct. 2052, 2063 (1984) (citation omitted). The
benchmark for judging a claim of ineffective assistance of counsel is whether
counsel’s performance “so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a just result.” Id. at
2064. To make such a showing, a prisoner must prove (1) counsel’s performance
was deficient and (2) the deficient performance prejudiced the defense. Id. The
reviewing court need not address both components of the inquiry, however, if the
prisoner makes an insufficient showing on one. Id. at 2069.
Regarding the deficient-performance component, the Supreme Court has
explained the proper measure of attorney performance is reasonableness under
prevailing professional norms. Id. at 2065. Counsel’s performance deserves
substantial deference and there is a strong presumption counsel’s performance fell
within the range of reasonable professional assistance. Id. Regarding the prejudice
component, the Supreme Court has explained “[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 2068. A reasonable
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probability is one sufficient to undermine confidence in the outcome. Id. We have
recognized, “given these principles and presumptions, the cases in which habeas
petitioners can properly prevail . . . are few and far between.” Chandler v. United
States, 218 F.3d 1305, 1313 (11th Cir. 2000) (quotation omitted).
In a narrow range of circumstances, however, such as actual or constructive
denial of counsel, state interference with counsel’s assistance, or actual conflicts of
interest, courts presume prejudice to the defendant. See Strickland, 104 S. Ct. at
2067. In such situations, prejudice is so likely the “case-by-case inquiry into
prejudice is not worth the cost.” Id. In a companion case to Strickland, the
Supreme Court held certain circumstances are so likely to prejudice the accused
that litigating their effect is not justified: (1) there is a “complete denial of
counsel;” (2) “counsel entirely fails to subject the prosecution’s case to meaningful
adversarial testing;” and (3) counsel is called on to render assistance under
circumstances where competent counsel very likely could not. United States v.
Cronic, 104 S. Ct. 2039, 2046-47 (1984).
As an initial matter, based on the testimony from court personnel, Thomas,
and Thomas’s counsel, the district court did not clearly err in finding counsel fell
asleep once during the non-contested testimony of Sharon Delamain, a bank teller.
Counsel responded inappropriately to an evidentiary question from the court
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during Delamain’s testimony, which supports an inference counsel was asleep
prior to the question. The judge presiding over Thomas’s trial, however, noted “at
no time during the trial, which encompassed approximately 22 hours, did the Court
witness [counsel] nodding off, sleeping, or otherwise inattentive.” Further, the
record supports the district court’s finding counsel fully participated in the trial.
Thus, Thomas’s ineffective assistance of counsel claim is amenable to analysis
under the Strickland framework.
Although sleeping, even for a short period of time, is inexcusable, Thomas
has failed to establish prejudice. Delamain did not identify any of the defendants,
she was not cross-examined by any of the defendants, and she did not testify to
contested matters. None of the parties disputed the occurrence of the robbery;
rather, the crux of the trial was the identities of those involved. Four co-
conspirators testified against Thomas, specifically identifying him and linking him
to the bank robberies. Counsel made objections and cross-examined all four
witnesses. Due to the overwhelming evidence against Thomas from the co-
conspirator testimony, and counsel’s engagement in the trial during those periods,
Thomas has failed to establish a reasonable probability the outcome of the trial
would have changed had counsel been awake and alert during Delamain’s
testimony. Strickland, 104 S. Ct. at 2068.
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II.
Thomas also argues the district court erred by not conducting an evidentiary
hearing and relying on facts this Court found inadequate to resolve the claim on
direct appeal. Our concern on direct appeal was that the trial court not act as fact
finder and witness. The assignment of the instant § 2255 motion to a different
judge resolved our concern. Accordingly, the district court did not err in relying
on the evidentiary hearing held before the trial court.
AFFIRMED.
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