Fuller v. Sherry, No. 09--2147 (6th Cir. Dec. 30, 2010) (unpublished). Panel of Judges Boggs, McKeague, and Quist (W.D. Mich.).
Petitioner was appointed new defense counsel one hour and twenty-eight minutes before jury selection began in his state case. He argued in this habeas case that he was entitled to a presumption that his counsel was constitutionally ineffective: "it is unlikely that any attorney could provide competent representation with so little preparation time." The Count found, however, that the presumption of ineffectiveness is limited to particularly egregious circumstances, and because the petitioner's "case was fairly straightforward, and witnesses and evidence had been identified by his previous counsel, we decline to apply the presumption and affirm the denial of [the petitioner's] petition."
State charges were resisting and obstructing an officer, CSC 4, and possession of marijuana. Petitioner requested new counsel on the day of trial and the court appointed another attorney present in the courtroom on another matter.
During a lunch break, the new attorney requested an adjournment and relayed to the court a number of requests petitioner had made, including requests for discovery of the criminal history of the witnesses, funds for a private investigator, a motion filed regarding the prior conduct of a complaining officer, and videotapes of the store, jail, and police vehicle. Petitioner also sought two additional witnesses: a police detective and the owner of the store at which the offenses allegedly occurred. The attorney admitted that she did not know the purpose of some of the requests; she made a motion in limine to exclude evidence that the petitioner was on parole, which was granted; and she informed the court that the petitioner was notified of a plea offer. The court recessed for an hour.
After this recess, the attorney asked the court for an adjournment, stating that b/c of the circumstances she had had no time to prepare. The petitioner also wanted an adjournment for other reasons. The court responded that none of the petitioner’s discovery motions had been filed properly and denied them. In response to the request for an adjournment, the court stated: that it was satisfied that counsel was competent and could provide "adequate representation"; counsel "was aware of jury trial, was preparing on another case for jury selection today. So I'm satisfied that counsel certainly was prepared for jury selection in this case"; and that there had "been a number of discovery requests that I really quite frankly don’t even understand how it would be logical, or relevant, or material, or admissible in this case." The court then asked, "Defense counsel ready?" and continued, "I’m ready to try the case. Bring in the jury, we’ll have opening statements."
As the Court of Appeals said, the issue was "whether, under Cronic, [the petitioner] is entitled to a presumption of ineffective assistance of counsel in violation of the Sixth Amendment."
The Supreme Court has identified three situations in which a defendant is entitled to a presumption of IAC (w/o resort to the Strickland test): 1) the "complete denial of counsel," including situations in which counsel was absent at a key stage of the proceedings; 2) situations in which counsel entirely fails to subject the government’s case to meaningful adversarial testing; and 3) situations in which the likelihood that any lawyer, even a completely competent one, could provide effective assistance is so small that a presumption of prejudice is warranted.
Under this third Cronic category, the presumption of prejudice applies in "limited, egregious circumstances." The presumption is warranted "only when surrounding circumstances justify" its application, not just because counsel was appointed belatedly and the court refused to grant additional preparation time. There are five factors relevant to evaluation of counsel’s effectiveness in a given case (Cronic did not say that all of the criteria are required or that the criteria are exclusive):
1) time afforded for investigation and preparation;
2) experience of counsel;
3) gravity of the charges;
5) accessibility of witnesses.
If the presumption is to apply, analysis of the criteria must show that counsel failed to function in any meaningful sense as the prosecution’s adversary. Otherwise, a defendant must be able to point to specific errors by his or her attorney to make out an ineffective assistance claim under Strickland.
Analysis of Factors:
Although the short period of time allowed for counsel to prepare was "indeed striking," tardy appointment of counsel alone does not warrant application of the per se rule. And the petitioner was never completely without the aid of counsel. The Court noted that the new attorney may not have had an opportunity to actually consult with the old attorney whom she replaced, so it would be improper to conclude that she benefited from all of the prior attorney’s trial preparation. She had to rely on her brief conversation with the petitioner, police reports, and the transcript of the preliminary exam. But, the Court found, given that the witnesses and evidence had already been identified and the preliminary examination transcript suggested the witnesses’ likely testimony, the nature of the case was largely established when the new attorney took over. She did not have to go to trial completely unprepared.
And she was an experienced criminal attorney. While the petitioner received a lengthy sentence, this sentence was based more on his status as a habitual offender than on the gravity of the charges he faced. As the prior attorney had been responsible for investigating the case, the relevant witnesses had been identified and prepared for trial before the new attorney was appointed.
The Court recognized that in some circumstances appointing new defense counsel on the day of trial may "so damage the integrity of a criminal trial that a presumption of ineffectiveness would be justified," but the Court found that that was not so here. Because the case was "fairly straightforward," and witnesses and evidence had been identified beforehand, it was possible for this experienced criminal attorney to provide an effective defense, even if she had little time to speak with her client or review discovery materials.
The Court affirmed denial of habeas relief.