United States v. Nicholas Ragin

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7245
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
NICHOLAS RAGIN,
Defendant - Appellant.
Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte. Robert J. Conrad,
Jr., District Judge. (3:04-cr-00271-RJC-7; 3:10-cv-00488-RJC)
Argued: December 10, 2015 Decided: March 11, 2016
Before GREGORY and SHEDD, Circuit Judges, and DAVIS, Senior
Circuit Judge.
Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Shedd and Senior Judge Davis joined.
ARGUED: Matthew Gridley Pruden, TIN, FULTON, WALKER & OWEN,
PLLC, Charlotte, North Carolina, for Appellant. William Michael
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee. ON BRIEF: Jill Westmoreland Rose,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
GREGORY, Circuit Judge:
This appeal presents an issue of first impression in this
Circuit: whether a defendant’s right to effective assistance of
counsel is violated when his counsel sleeps during trial. We
hold that a defendant is deprived of his Sixth Amendment right
to counsel when counsel sleeps during a substantial portion of
the defendant’s trial.
The Sixth Amendment guarantees a criminal defendant the
assistance of counsel for his defense. U.S. Const. amend. VI.
Although generally a defendant must show that his counsel’s
performance was deficient and prejudicial to prevail on a claim
of ineffective assistance of counsel, see Strickland v.
Washington, 466 U.S. 668 (1984), in United States v. Cronic, 466
U.S. 648 (1984), the Supreme Court held that there are certain
situations where the reliability of a trial becomes so
questionable that the defendant need not show that he was
actually prejudiced. Instead, prejudice is presumed. We
believe that when counsel for a criminal defendant sleeps
through a substantial portion of the trial, such conduct
compromises the reliability of the trial, and thus no separate
showing of prejudice is necessary.
This case presents such a situation. Nicholas Ragin’s
Sixth Amendment right to counsel was violated not because of
specific legal errors or omissions indicating incompetence in
2
counsel’s representation but because Ragin effectively had no
legal assistance during a substantial portion of his trial. The
evidence is not disputed; it demonstrates that counsel was
asleep for much of Ragin’s trial. As one witness testified,
counsel was asleep “[f]requently . . . almost every day . . .
morning and evening” for “30 minutes at least” at a time. These
circumstances suggest “a breakdown in the adversarial process
that our system counts on to produce just results,” Strickland,
466 U.S. at 696, and from which we must presume prejudice to
Ragin.
We therefore conclude that Ragin was deprived of effective
assistance of counsel during his trial, in violation of the
Sixth Amendment. Accordingly, we reverse the order denying
relief under 28 U.S.C. § 2255 and remand for further proceedings
consistent with this opinion.
I.
A.
On October 18, 2004, a grand jury in the Western District
of North Carolina returned an indictment that charged Ragin,
along with six codefendants, with conspiracy and other
substantive offenses related to their involvement in
prostitution and drug rings. Following the indictment, the
district court appointed Nikita V. Mackey as counsel for Ragin.
3
The grand jury subsequently returned a superseding indictment
that charged Ragin with two counts: conspiracy to commit
offenses against the United States, including enticing and
coercing individuals to travel in interstate commerce to engage
in prostitution, interstate transportation of minors to engage
in prostitution, and interstate wire transfer of funds in aid of
racketeering enterprises, in violation of 18 U.S.C. § 371; and
conspiracy to possess with intent to distribute cocaine base and
to employ, hire, use, persuade, induce, entice and coerce minors
in furtherance thereof, in violation of 21 U.S.C. §§ 841, 846,
and 861.
Ragin pleaded not guilty and was tried before a jury along
with three of his codefendants, Tracy Howard, David Howard, and
Oscar Solano-Sanchez. The trial lasted from April 3 to April
21, 2006, and included testimony from approximately forty
witnesses. Of those witnesses, six testified about Ragin’s
direct involvement in the conspiracy, while the remainder
testified about the acts of the other defendants.
At the conclusion of trial, the jury found Ragin guilty on
both counts. On June 25, 2006, three months after trial and
prior to sentencing, Ragin submitted a handwritten letter to the
district court in which he complained about Mackey. Ragin
alleged, among other things, that “[Mackey] even had the
4
audacity to fall asleep ‘twice’ during the trial.” Supp. J.A.
790.
At sentencing, the district court calculated a total
offense level of 40 and a criminal history category of VI based
on Ragin’s accumulation of 16 criminal history points, resulting
in a guidelines range of 360 months to life in prison. The
court sentenced Ragin to 360 months in prison. We subsequently
affirmed Ragin’s conviction and sentence. United States v.
Howard, 309 F. App’x 760 (4th Cir. 2009) (unpublished).
B.
On October 1, 2010, Ragin moved, pursuant to 28 U.S.C.
§ 2255, to have his conviction and sentence vacated. In the
motion, Ragin raised eleven claims for relief, including ten
allegations accusing Mackey of providing ineffective assistance
of counsel. Ragin’s seventh claim was that “[c]ounsel fell
asleep during the trial.” J.A. 27. Ragin described a single
incident during which he “noticed that [Mackey] was sleeping.”
Id.
In conjunction with his § 2255 motion, Ragin submitted a
sworn affidavit elaborating on eight of his ineffective
assistance of counsel claims. Consistent with his earlier
allegation in his post-trial letter, in paragraph eight of the
affidavit, Ragin stated, “Finally counsel fell asleep twice
5
during trial which more than shows his lack of interest and
dedication to my case.” J.A. 64.
After the government filed a response opposing Ragin’s
motion, the district court issued an order, concluding that “an
evidentiary hearing is necessary to resolve Petitioner’s claim
that his attorney provided ineffective assistance when he fell
asleep during trial.” J.A. 113-14.
C.
At the evidentiary hearing, Ragin called three witnesses,
Peter Adolf, Richard Culler, and Pamela Vernon, and testified on
his own behalf. The government called Special Agent
Terrell Tadeo and Mackey.
Adolf, who represented codefendant David Howard at trial,
testified that he “definitely” noticed Mackey sleeping on one
occasion. J.A. 131. Adolf recalled that, during the
prosecution’s case in chief, government counsel approached
Mackey to show him an exhibit that they intended to introduce.
“[Government counsel] walked over to Mr. Mackey, and I remember
that Mr. Mackey was sort of sitting back, leaning back in his
chair with his left elbow on his left thigh, . . . and sort of
with his chin resting on his fist, and [government counsel] held
the document in front of him and he didn’t move, he sort of sat
there.” J.A. 132. “Judge Conrad leaned into his microphone,
because we were all sitting there and [Mackey] wasn’t moving and
6
said, ‘Mr. Mackey’ . . . very loudly.” Id. Mackey then “jumped
up and sort of looked around and was licking his lips and moving
his mouth and looked sort of confused and looked all over the
room except at [government counsel]. And after a few seconds,
he saw [government counsel] standing there and looked at the
document.” J.A. 133. After Mackey reviewed the document, he
“went back into the position that he was [in] before with his
chin on his fist.” Id. Adolf did not remember who was
testifying at the time or what document the government was
showing.
Adolf did not specifically recall any other occasions where
he noticed Mackey sleeping. Adolf made clear, however, that he
“really didn’t pay a lot of attention to what [Mackey] was doing
throughout the trial” because he “was dealing with [his] own
client and [the client’s] own issues;” Mackey “wasn’t directly
in [his] line of sight unless [he] looked to the right [and]
. . . [he] was [paying attention to the evidence].” J.A. 134-
35.
Similarly, Culler, who represented codefendant Tracy Howard
at trial, testified that he noticed Mackey sleeping on one
occasion. Mackey’s “head [was] down . . . [and he was]
breathing very regularly as if he was sleeping.” J.A. 145-46.
Culler further testified that he stated to Adolf that Mackey was
“asleep again.” J.A. 145. Although Culler did not specifically
7
recall any other incidents, based on his statement that Mackey
was “asleep again,” he “believe[d]” that Mackey was asleep on
“one other occasion.” J.A. 146. Culler, like Adolf, made clear
that he “was focused on the witnesses at that time because they
were talking about [his] client mostly. And so [he] didn’t pay
any attention to Mr. Mackey after seeing [him asleep].” J.A.
151. Further, based on Culler’s description of the courtroom,
it appears that Mackey was not in his direct line of sight. 1
Vernon, a juror in this case, testified that she noticed
Mackey sleeping “[f]requently . . . almost every day . . .
morning and evening” for “30 minutes at least” at a time. J.A.
153-55. Based on the courtroom setup, Mackey was sitting
“directly across from [the jurors].” J.A. 153. “We could see
[Mackey] clearly, and we were facing [him] completely.” Id.
Vernon specifically recalled that “[e]vidence was being
presented and . . . witnesses were being questioned” when Mackey
was asleep. J.A. 154. When asked to describe Mackey’s
appearance during those times, Vernon said that he appeared
“[t]otally dozed off” and had “his hand on the table and head
down and did not appear to be alert at all.” Id. When Mackey
was called on during trial, Ragin “would have to punch him . . .
or kind of rouse[] him.” J.A. 155-56.
1
Additionally, Culler did not recall at which point during
the trial the sleeping incidents occurred.
8
In addition, Vernon testified that other jurors noticed
Mackey sleeping and commented on it in the jury room. While
cross-examining Vernon about Mackey’s conduct, the government
asked whether, during jury deliberations, Vernon “h[e]ld [her]
observation of Mr. Mackey resting his head against [Ragin],
. . . did you consider that in your verdict against the
defendant.” J.A. 157. Vernon stated, “We discussed it. Yes.”
Id. Vernon found Ragin guilty on both counts.
Ragin also testified that Mackey was asleep frequently.
During his testimony at the evidentiary hearing, Ragin expanded
on his initial allegation, claiming that he observed Mackey
sleeping between ten and twenty times for up to ten minutes at a
time. Ragin said he had to nudge Mackey on several occasions
when Mackey failed to respond to testimony presented at trial.
As he sat next to Mackey during the trial, Ragin heard him
snoring and observed his eyes closed. On at least one occasion,
Mackey asked Ragin what he missed.
In addition, Ragin introduced an exhibit containing pages
he initialed from the trial transcript, indicating occasions
when he asserts Mackey was sleeping. The twenty pages Ragin
initialed covered testimony from each of the witnesses who
testified about Ragin’s direct involvement in the conspiracy.
Ragin did note, however, that the transcript pages he identified
did not cover all of the testimony that was offered while Mackey
9
was sleeping and that Mackey also slept while other witnesses
testified. On cross-examination, Ragin acknowledged that he had
only alleged that Mackey was asleep on two occasions in his
letter to the district court and in his sworn § 2255 motion and
affidavit, and admitted that he had not included any details
about the witnesses who were testifying or the substance of
their testimony in his initial allegations. Ragin explained
that when he filed the letter and § 2255 motion and affidavit,
he was acting pro se and did not have access to the trial
transcript. Reading through the trial transcript refreshed his
recollection on when exactly Mackey was sleeping.
The government called Tadeo and Mackey as witnesses. Tadeo
testified that he saw Mackey “nod off” on at least one, possibly
two, occasions. Tadeo described “nodding off” as “kind of eyes
closed, head dropping” and “struggling to stay awake.” J.A.
179. Tadeo testified that his focus during trial was on the
evidence presented and that he was “pay[ing] attention to what
witnesses [were] saying.” J.A. 182. The witness box was
located directly across from the government’s table, where Tadeo
sat. Mackey was not in Tadeo’s direct line of sight. Tadeo
could not recall who was testifying at the time Mackey was
“nodding off.”
Mackey testified that he did not recall whether he slept
during the trial. Mackey explained that he thought he “would
10
have recalled something like that” and that he would expect that
the district court, his client, or one of the other attorneys
would have addressed it on the record if it had been an issue.
J.A. 221. At the time of this trial, Mackey was running for
state district court judge. According to Mackey, he first heard
of the sleeping allegations while he was running for sheriff and
viewed them as “political . . . fodder.” J.A. 222.
D.
After the evidentiary hearing, the district court issued an
order denying and dismissing Ragin’s § 2255 motion. The court
held that the requisite showing of prejudice for ineffective
assistance of counsel varies depending on the evidence: a
presumption of prejudice only applies “when the evidence shows
counsel slept through a ‘substantial portion’ of the defendant’s
trial,” whereas the ordinary standard requiring the defendant to
demonstrate prejudice applies in all other cases involving
isolated allegations that counsel was asleep. Ragin v. United
States, No. 3:10-cv-488-RJC, 2014 WL 4105898, at *7 (W.D.N.C.
Aug. 19, 2014) (citing Muniz v. Smith, 647 F.3d 619 (6th Cir.
2011), and Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en
banc)).
After consideration of the testimony and evidence
presented, the district court “f[ound] that Mackey was not
asleep for ‘substantial portions’ of the trial.” Id. In
11
support of its finding, the court determined that Ragin’s
testimony and his exhibit “listing ten to fifteen times during
the trial that Mackey was asleep [were] not credible . . .
[because] Ragin ha[d] great incentive to embellish his claim at
this stage in the proceedings.” Id. The court did find
credible, apparently, Ragin’s earlier accusation, “made within
three months of the trial,” that Mackey was asleep on two
occasions, and that this allegation was consistent with the
testimony of Culler, Adolf and Tadeo; each testified that Mackey
appeared to be sleeping on one or two occasions. Id. Further,
the court did not find Vernon’s testimony credible because she
“repeatedly referred to Ragin by his first name during her
testimony, [and] may be remorseful for the severity of the
sentence imposed.” Id. “It is telling,” the court stated, that
“neither Ragin nor the juror brought Mackey’s alleged sleeping
to the attention of the Court during the trial when it could
have been effectively addressed if it were occurring so
frequently.” Id.
The district court held that “[e]ven if Mackey fell asleep
once or twice during the protracted trial involving over forty
witnesses, the [trial] transcript reflects his attention to the
six witnesses who directly implicated Ragin.” Id. The district
court, therefore, “appl[ied] the usual Strickland standard and
12
[would] not presume prejudice.” 2 Id. After “careful review of
the trial transcript,” the court found that, based on the
“substantial evidence against him, Ragin ha[d] not demonstrated
a reasonable probability of a different outcome” and, therefore,
that “the result of the trial was not fundamentally unfair or
unreliable.” Id. at *8. In light of its findings, the district
court denied Ragin’s § 2255 motion.
Ragin filed a timely notice of appeal, and we have
jurisdiction under 28 U.S.C. § 1291.
II.
A.
We review de novo a district court’s legal conclusions in
denying a § 2255 motion. United States v. Stitt, 552 F.3d 345,
350 (4th Cir. 2008). We also review de novo any mixed questions
of law and fact addressed by the court as to whether the
petitioner has established a valid Sixth Amendment ineffective
2In an alternative holding, the district court stated that
even if it presumed prejudice, it would have found that the
weight of the evidence against Ragin would overcome that
prejudice. Ragin, 2014 WL 4105898, at *7 n.6. Although this is
not critical to our analysis, we note that this was legal error.
See, e.g., Wright v. Van Patten, 552 U.S. 120, 124 (2008)
(“Cronic held that a Sixth Amendment violation may be found
‘without inquiring into counsel’s actual performance or
requiring the defendant to show the effect it had on the trial’
when ‘circumstances [exist] that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified.’” (alteration in original) (quoting Bell
v. Cone, 535 U.S. 685, 695 (2002))).
13
assistance claim. See Smith v. Angelone, 111 F.3d 1126, 1131
(4th Cir. 1997) (“Whether counsel’s performance was
constitutionally adequate is a mixed question of law and fact
which we review de novo.” (internal quotation marks omitted)).
When the court conducts an evidentiary hearing prior to ruling,
we review its findings of fact for clear error. See Stitt, 552
F.3d at 350. “A finding is ‘clearly erroneous’ when although
there is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm conviction
that a mistake has been committed.” United States v. Dugger,
485 F.3d 236, 239 (4th Cir. 2007) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
B.
An accused’s right to be represented by counsel is a
fundamental component of our criminal justice system. Lawyers
in criminal cases “are necessities, not luxuries.” Gideon v.
Wainwright, 372 U.S. 335, 344 (1963). “Their presence is
essential because they are the means through which the other
rights of the person on trial are secured.” Cronic, 466 U.S. at
653. “Of all the rights that an accused person has, the right
to be represented by counsel is by far the most pervasive for it
affects his ability to assert any other rights he may have.”
Id. at 654.
14
In Strickland, the Supreme Court set forth a two-part test
for deciding ineffective assistance of counsel claims. 466 U.S.
at 687. First, the defendant “must show that counsel’s
performance was deficient.” Id. To prove deficiency, a
defendant “must show that counsel’s representation fell below an
objective standard of reasonableness.” Id. at 688. Second, the
defendant must show that the deficient performance resulted in
actual prejudice to the defendant. Id. at 687. A showing of
prejudice requires the defendant to prove that “counsel’s errors
were so serious as to deprive the defendant of a fair trial, a
trial whose result is reliable.” Id.
Strickland and its companion case Cronic gave more specific
instructions on finding prejudice. The Court stated that in
certain limited contexts, “prejudice is presumed.” Strickland,
466 U.S. at 692. In Cronic, the Court reiterated the general
Strickland rule and also provided that “[t]here are . . .
circumstances that are so likely to prejudice the accused that
the cost of litigating their effect in a particular case is
unjustified.” Cronic, 466 U.S. at 658. The Court identified
three distinct situations in which a presumption of prejudice is
appropriate: First, prejudice is presumed when the defendant is
completely denied counsel “at a critical stage of his trial.”
Id. at 659. Second, prejudice is presumed if there has been a
constructive denial of counsel. Id. This happens when a lawyer
15
“fails to subject the prosecution’s case to meaningful
adversarial testing,” thus making “the adversary process itself
presumptively unreliable.” Id. Third, the Court identified
certain instances “when although counsel is available to assist
the accused 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.” Id. (citing, as
an example, Powell v. Alabama, 287 U.S. 45 (1932)).
That a case warrants a finding of presumed prejudice under
any of these three prongs is “an extremely high showing for a
criminal defendant to make.” Brown v. French, 147 F.3d 307, 313
(4th Cir. 1998). If, however, the defendant makes such a
showing, it would necessarily follow that there was a structural
error, which, by definition, “affect[s] the framework within
which the trial proceeds” and prevents the trial from “reliably
serv[ing] its function as a vehicle for determination of guilt
or innocence.” Arizona v. Fulminante, 499 U.S. 279, 310 (1991).
Therefore, Cronic errors are structural, requiring
automatic reversal without any inquiry into the existence of
actual prejudice. See, e.g., Wright, 552 U.S. at 124 (“Cronic
held that a Sixth Amendment violation may be found ‘without
inquiring into counsel’s actual performance or requiring the
defendant to show the effect it had on the trial.’” (quoting
16
Bell, 535 U.S. at 695)); Musladin v. Lamarque, 555 F.3d 830,
837-38 (9th Cir. 2009) (“Cronic specifically holds that
automatic reversal is required where a defendant is denied
counsel at a ‘critical stage,’ and we cannot depart from that
holding.”); United States v. Arbolaez, 450 F.3d 1283, 1294 (11th
Cir. 2006) (explaining that the “constructive denial of counsel
is ‘legally presumed to result in prejudice’ and thus to
constitute a structural error” (quoting Strickland, 466 U.S. at
692)). In other words, “counsel’s incompetence can be so
serious that it rises to the level of a constructive denial of
counsel which can constitute constitutional error without any
showing of prejudice.” Strickland, 466 U.S. at 703 n.2
(Brennan, J., concurring in part and dissenting in part) (citing
Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984), for
the proposition that “unconscious or sleeping counsel is
equivalent to no counsel at all”).
Absent these narrow circumstances of presumed prejudice
under Cronic, defendants must show actual prejudice under
Strickland. See Strickland, 466 U.S. at 692; Cronic, 466 U.S.
at 666 & n.41. Actual prejudice requires that the defendant
“show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different. A reasonable probability is a
17
probability sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694.
III.
Although this is a case of first impression in this
Circuit, four other circuits have considered whether application
of a presumption of prejudice under Cronic is warranted when a
defendant’s counsel is asleep during trial. All of these
circuits have held that prejudice must be presumed when counsel
sleeps either through a “substantial portion of [a defendant’s]
trial” or at a critical time during trial. Javor, 724 F.2d at
834 (“When 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.”); see
also Muniz, 647 F.3d at 625-26 (“Muniz must show that his
attorney slept through a substantial portion of the trial for
the Cronic presumption of prejudice to attach.”); Burdine, 262
F.3d at 341 (“[W]e 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.”); Tippins v. Walker, 77 F.3d
682, 687 (2d Cir. 1996) (“We therefore conclude that Tippins
suffered prejudice, by presumption or otherwise, if his counsel
18
was repeatedly unconscious at trial for periods of time in which
defendant’s interests were at stake.”).
We agree with other circuits and hold that a defendant’s
Sixth Amendment right to counsel is violated when that
defendant’s counsel is asleep during a substantial portion of
the defendant’s trial. 3 In such circumstances, Cronic requires
us to presume prejudice because the defendant has been
constructively denied counsel. For good reason – “sleeping
counsel is tantamount to no counsel at all.” United States v.
DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987).
A.
While “episodes of inattention or slumber are perfectly
amenable to analysis under the Strickland prejudice test[,]
. . . ‘[p]rejudice is inherent’ at some point, ‘because
unconscious or sleeping counsel is equivalent to no counsel at
all.’” Tippins, 77 F.3d at 686 (quoting Javor, 724 F.2d at
834). It should go without saying that “[e]ffectiveness of
counsel depends in part on the ability to confer with the client
during trial on a continuous basis, and the attorney must be
‘present and attentive’ in order to make adequate cross-
examination – ‘a matter of constitutional importance’ by virtue
3 Our holding today does not preclude a claim in which
counsel is asleep during a critical portion of the defendant’s
trial. See Tippins, 77 F.3d at 687. Ragin, however, has not
pled facts that would implicate such a rule.
19
of the Sixth Amendment.” Id. (quoting Javor, 724 F.2d at 834).
Further, “if counsel sleeps, the ordinary analytical tools for
identifying prejudice are unavailable. The errors and lost
opportunities may not be visible in the record, and the
reviewing court applying the traditional Strickland analysis may
be forced to engage in ‘unguided speculation.’” Id. (quoting
Javor, 724 F.2d at 834); see also Javor, 724 F.2d at 834-35
(“[A]n inquiry into the question of prejudice would require
‘unguided speculation’ and ‘would not be susceptible to
intelligent, even handed application’ because an attorney’s
absence prejudices a defendant more by what was not done than by
what was done.”). In other words, when counsel is absent –
physically or due to sleep - “the evil lies in what the attorney
does not do, and is either not readily apparent on the record,
or occurs at a time when no record is made.” Javor, 724 F.2d at
834.
Moreover, the question of prejudice under Strickland
ordinarily involves consideration of the range of strategies and
tactics available to a lawyer. Strickland, 466 U.S. at 689-90.
“[T]he buried assumption in our Strickland cases is that counsel
is present and conscious to exercise judgment, calculation and
instinct, for better or worse.” Tippins, 77 F.3d at 687. Of
20
course, we cannot make such an assumption when counsel is asleep
during a substantial portion of the defendant’s trial. 4
B.
We do not understand Ragin’s claim of prejudice to be that
his lawyer failed to take any particular initiative at trial
that resulted in prejudice, as the government argues; rather,
Ragin claims that during a substantial portion of the trial, he
had no counsel to determine what options were available.
Indeed, “there is a great difference between having a bad lawyer
and having no lawyer: if the lawyering is merely ineffective,
then the decision to grant relief turns on the degree of
incompetence and prejudice to the defendant; if the defendant
had no lawyer, prejudice is legally presumed in every case, and
the defendant is entitled to relief in every case.” United
4
We recognize that there are “real dangers in presuming
prejudice merely from a lack of alertness.” Tippins, 77 F.3d at
686, 688 (noting that “[l]awyers may sometimes affect a drowsy
or bored look to downplay an adversary’s presentation of
evidence” and expressing concern that a per se rule may provide
“unscrupulous attorneys” a “tactical device” that could be
“sprung at some later strategic phase . . . if events developed
very badly for a defendant”); Prada-Cordero v. United States, 95
F. Supp. 2d 76, 81-82 (D.P.R. 2000) (“[A] 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.” (citing
Tippins, 77 F.3d at 688)). These “dangers” are not, however, at
issue in this case as there is no suggestion in the record that
Mackey used the appearance of sleep as part of a strategy.
21
States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991). When an
attorney is dozing or asleep, a “client cannot consult with his
or her attorney or receive informed guidance from him or her
during the course of the trial.” Javor, 724 F.2d at 834.
We therefore conclude that Ragin would suffer Cronic
prejudice if his counsel was asleep during a substantial portion
of the trial. Such circumstances implicate a fundamental value
that Strickland instructs us to keep in mind: “In every case
the court should be concerned with whether, despite the strong
presumption of reliability, the result of the particular
proceeding is unreliable because of a breakdown in the
adversarial process that our system counts on to produce just
results.” Strickland, 466 U.S. at 696 (emphasis added). Thus,
the dispositive question in this case is whether the
circumstances surrounding Mackey’s representation of Ragin
justify a presumption of prejudice under Cronic, the issue to
which we now turn.
IV.
Because we are “left with the definite and firm conviction
that a mistake has been committed” in the district court’s
findings of fact and credibility determinations, we reverse the
district court’s determination that Mackey was not asleep for a
22
substantial portion of the trial. See Dugger, 485 F.3d at 239
(providing clear error standard).
A.
Besides Mackey, who, tellingly, could not recall whether he
was asleep at trial, every witness who testified stated that
Mackey was asleep, appeared to be asleep, or was “nodding off”
at some point. Two witnesses, including the government’s
witness, testified that Mackey was asleep or nodding off on
possibly two occasions. This is consistent with Ragin’s
affidavit, which the district court did not discredit.
Vernon testified that she noticed Mackey sleeping
“[f]requently . . . almost every day . . . morning and evening”
for “30 minutes at least” at a time. J.A. 153-55. She
specifically recalled that “[e]vidence was being presented and
. . . witnesses were being questioned” when Mackey was asleep. 5
J.A. 154. Further, Vernon testified that other jurors noticed
Mackey sleeping and commented on it in the jury room. Moreover,
on cross-examination, the government asked whether, during jury
deliberations, Vernon “h[e]ld [her] observation of Mr. Mackey
resting his head against . . . the defendant.” J.A. 157.
5Even assuming, arguendo, that Mackey only slept during the
portion of trial in which no witness testimony directly
implicated Ragin, “[t]he adversary process becomes unreliable
when no attorney is present to keep the taint of conspiracy from
spreading to the client.” United States v. Russell, 205 F.3d
768, 772 (5th Cir. 2000).
23
Vernon stated, “We discussed it. Yes.” Id. As it stands, it
appears not only that the jurors discussed their observations of
Mackey “resting his head” during jury deliberations but also,
even more troubling, that the jurors may have held Mackey’s
conduct against Ragin in reaching their verdict. 6
Remarkably, the district court dismissed Vernon’s testimony
because she “repeatedly referred to Ragin by his first name
during her testimony, [and] may be remorseful for the severity
of the sentence imposed.” 7 Ragin, 2014 WL 4105898, at *7. There
is, however, nothing in the record to suggest that Vernon had
knowledge of the sentence the district court imposed, that she
felt remorseful, or that she had improper communications or any
interactions with Ragin. 8 This was clear error.
6Surprisingly, the government never clarified whether
Vernon actually did hold Mackey’s conduct against Ragin in
reaching her verdict. Whether this evidence would support a
finding of actual prejudice under Strickland is an issue we need
not reach because prejudice in this case is presumed under
Cronic.
7
The district court also stated that Vernon should have
brought Mackey’s sleeping to the district court’s attention.
While it would have been helpful had Vernon, or any of the
jurors, alerted the district court to Mackey’s conduct, we
cannot assume that any juror knew or should have known that they
could bring this information to the court’s attention. Further,
we are unaware of any duty that the juror had to bring the
conduct to the district court’s attention.
8
It is true that Vernon referred to Ragin by his first name
– Nicholas – while she referred to Mackey by his first and last
names, as did Adolf. J.A. 130, 132. But it is also true that
24
Indeed, Vernon’s testimony is not inconsistent with all the
other witnesses for the following reasons. First, the district
court utterly failed to consider the likely possibility that
each witness saw Mackey asleep or nodding off on different
occasions. Had the court done so, it would have reached the
conclusion that Mackey could have been asleep on at least six or
seven different occasions. 9 This is consistent with Vernon’s
testimony – Mackey appeared to be asleep “[f]requently . . .
almost every day . . . morning and evening.” J.A. 153-54.
Second, based on the courtroom setup, Mackey was sitting
“directly across from [the jurors].” J.A. 153. The jurors
“could see [Mackey] clearly, and [they] were facing [him]
completely.” Id. Every other witness at the evidentiary
hearing stated that Mackey was not directly in their line of
sight and that their attention was directed at the witness box,
which was located at the opposite side of the courtroom from
where Mackey sat. Cf. Tippins, 77 F.3d at 688 (“[Government
counsel] – who presumably would be looking elsewhere most of the
time - testified that he too saw [defendant’s lawyer asleep].”).
during trial, the witnesses referred to Ragin by his first name.
There is scant reason in these circumstances to discredit
Vernon’s testimony.
9
Adolf witnessed Mackey asleep on one occasion. Culler and
Ragin each witnessed Mackey asleep on at least two occasions.
And, Tadeo witnessed Mackey “nodding off” on one or two
occasions.
25
Common sense dictates that a juror who is seated directly across
from counsel can observe counsel asleep more often during a two-
week trial than a person who does not have a direct line of
sight to counsel and whose attention is admittedly directed to
the opposite side of the courtroom from where counsel sat. Not
only would the juror see counsel asleep more frequently based on
this courtroom setup but the juror would also be in the best
position to accurately assess how long counsel was asleep during
each incident.
Finally, there is nothing in the record that is
inconsistent with, or discredits, Vernon’s testimony. The
government did not call any witnesses to dispute Vernon’s
testimony, although it had ample opportunity to do so. In fact
Tadeo, the government’s only proffered witness other than
Mackey, testified that Mackey nodded off on one or two
occasions.
Astonishingly, Mackey himself did not dispute the
allegation that he was sleeping during trial; instead, he
referred the district court to the trial transcript based on his
belief that the court would have admonished him on the record.
Perhaps; perhaps not. Perhaps like other witnesses in this
case, the district court was looking elsewhere most of the time
– for example, at the witness and juror box.
26
Vernon’s testimony is unrebutted and consistent with the
testimony of every witness in this case: Mackey slept “almost
every day” – “morning and evening” – of the trial. Generally,
we are reluctant to overturn a district court’s weight and
credibility determinations; but, when the testimony of an
unbiased witness - who was in the best position to observe
Mackey’s conduct – goes unrebutted, and that testimony is
discredited without good reason, there is justification for
finding clear error. 10
Based on this record, we find it impossible not to conclude
that Mackey slept, and was therefore not functioning as a lawyer
during a substantial portion of the trial. 11 “Unconscious
counsel equates to no counsel at all.” Burdine, 262 F.3d at
10Because we conclude that the district court committed
clear error in discrediting the testimony of a disinterested
witness in the best position to observe Mackey throughout the
trial, we need not consider the district court’s credibility
finding concerning Ragin’s testimony that Mackey slept on ten to
twenty occasions during his trial.
11
While we conclude that the manner in which Mackey slept
in the instant case was substantial, we decline to define this
term for all cases. Whether a lawyer slept for a substantial
portion of the trial should be determined on a case-by-case
basis, considering, but not limited to, the length of time
counsel slept, the proportion of the trial missed, and the
significance of the portion counsel slept through. At the same
time, however, while we decline to dictate precise parameters
for what must necessarily be a case-by-case assessment, we
caution district courts that the scope of our holding today
should not be limited to only the most egregious instances of
attorney slumber.
27
349. Unconscious counsel cannot “analyze, object, listen or in
any way exercise judgment on behalf of a client.” Id. Because
we have no basis to conclude that an attorney who sleeps through
a substantial portion of the trial has exercised judgment on his
client’s behalf, “we have insufficient basis for trusting the
fairness of that trial and consequently must presume prejudice.”
Id. Therefore, the fact that Mackey was sleeping during Ragin’s
trial amounted to constructive denial of counsel for substantial
periods of that trial.
B.
The government contends that the facts of this case “stand
in stark contrast to the ‘egregious’ facts presented in cases
where courts have presumed prejudice.” Gov.’s Opp. Br. 17
(citing Burdine, 262 F.3d at 349). We disagree, as the facts of
this case are equally – if not more – egregious than the facts
presented in cases where other circuits have presumed prejudice.
In Javor, for example, the magistrate judge noted that the
trial judge saw that counsel was asleep but did not “call a
recess because the attorney would only doze off momentarily and
then wake up.” 724 F.2d at 836 (Anderson, J., dissenting). The
magistrate judge also found that “all of the ‘dozing’ occurred
during times when the court proceedings did not concern issues
which applied to defendant Javor,” as there were multiple
defendants in Javor. Id. Based on this record, the Ninth
28
Circuit nevertheless held that counsel was asleep during a
substantial portion of the two-week trial.
In Burdine, “four neutral witnesses” – three jurors and the
deputy clerk – testified that counsel “repeatedly dozed or slept
as the State questioned witnesses and presented evidence
supporting its case against Burdine.” 262 F.3d at 339.
Specifically, one juror recalled seeing counsel “doze or nod off
between two and five times while the prosecuting attorney
questioned witnesses.” Id. Another juror testified that
counsel was asleep “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.” Id. The deputy clerk
recalled “lots of incidents” of counsel sleeping during the
trial. Id. There were, however, three witnesses, including
another juror, who testified that they had not noticed counsel
asleep during the trial. Id. Based on this record, the Fifth
Circuit held 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.” Id. at 349.
Here, as discussed extensively above, every witness stated
that they observed Mackey asleep on at least one occasion, with
multiple witnesses testifying that Mackey was asleep on multiple
occasions. Vernon, who had a direct view of Mackey, testified
29
that Mackey appeared to be asleep “[f]requently . . . almost
every day . . . morning and evening” for “30 minutes at least”
at a time during the two-week trial. The jurors discussed and
commented on Mackey being asleep, including during jury
deliberations (and may have held this fact against Ragin in
reaching their verdict). None of this evidence is in dispute.
There were no witnesses that testified that Mackey was not
asleep – not even Mackey. These facts are extraordinary and
egregious.
As the government concedes, “[t]here is little doubt that
trial counsel cannot provide effective assistance while
sleeping.” Gov.’s Opp. Br. 17. Indeed. And, as Cronic
recognized, there are some egregious circumstances that “are so
likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.” 466 U.S. at
658. This case presents such circumstances.
V.
“While a criminal trial is not a game in which the
participants are expected to enter the ring with a near match in
skills, neither is it a sacrifice of unarmed prisoners to
gladiators.” Id. at 657 (quoting United States ex rel. Williams
v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)). Ragin was thrown
unarmed into the arena to face the gladiators without benefit of
30
the assistance of counsel to which he had an absolute right. As
a result, Ragin’s trial was not a confrontation between
adversaries in which any reasonable person can have confidence.
Such an unfair battle – one in which one side is represented and
the other is not - is a clear and direct violation of the Sixth
Amendment. Accordingly, we vacate the judgment of conviction
and sentence, direct entry of judgment in favor of Ragin on his
§ 2255 motion, and remand for further proceedings consistent
with this opinion.
VACATED AND REMANDED
31