Roy Smith v. Richard Brown, 764 F.3d 790

Smith, already serving a 90-year murder sentence, stabbed another inmate with scissors at breakfast in 2003.
Public defender James Cupp was appointed; Smith drafted motions which were not filed.
Smith sought to replace Cupp and later opted to proceed pro se; court denied changes.
Bench trial commenced; Cupp questioned Fisher, did not call witnesses, and offered a weak closing.
Jury found Smith guilty of attempted murder and aggravated battery; aggravated battery merged into attempted murder.
Indiana Court of Appeals affirmed conviction, finding no prejudice given strong eyewitness evidence; federal habeas petition followed challenging counsel performance.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Cupp's performance entitled Smith to a presumption of prejudice under Cronic	Smith seeks Cronic prejudice presumption	State asserts waiver and limited Strickland review	Cronic prejudice presumption not met; no undue complete denial of counsel
Whether the state court reasonably applied Strickland prejudice standard	Cupp's deficient performance prejudiced case	Prejudice not shown given overwhelming evidence	No reasonable probability of different outcome; no AEDPA relief
Whether Smith adequately preserved the Cronic claim for review	Presented Cronic theory on appeal	Claim arguably waived by not raising earlier	Court need not decide waiver; Cronic claim lacking merit
Whether Cupp's conduct at closing and trial constituted ineffective assistance	Cupp failed to actively defend and close strongly	Some defense testing occurred; closing could be strategic	Cupp's overall performance deficient but not prejudicial
Whether sentencing conduct by Cupp could trigger a Cronic presumption	Possible Cronic effect at sentencing	Cronic not applicable there	Cronic presumption inapplicable to sentencing; no failure of representation at sentencing

Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes two-prong standard for ineffective assistance)
Cronic v. United States, 466 U.S. 648 (U.S. 1984) (presumption of prejudice in complete denial or testing failure)
Bell v. Cone, 535 U.S. 685 (U.S. 2002) (limits of prejudice presumption; closing strategies may be strategic)
Barrow v. Uchtman, 398 F.3d 597 (7th Cir. 2005) (illustrates limits of Cronic prejudice in partial defense failures)
Gentry v. Sevier, 597 F.3d 838 (7th Cir. 2010) (court recognizes strategic choices in presenting defense)
United States v. Kamel, 965 F.2d 484 (7th Cir. 1992) (premise that prejudice must be shown in standard Strickland framework)
Miller v. Martin, 481 F.3d 468 (7th Cir. 2007) (distinguishes Cronic considerations at sentencing)
Ellsworth v. Levenhagen, 248 F.3d 634 (7th Cir. 2001) (tests for fair presentation of habeas claims)
Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (standard for deficiency and prejudice; multiple cited passages)
Hopper v. Dretke, 106 F. App’x 221 (5th Cir. 2004) (distinguishes Strickland/Cronic distinctions)
Stitts v. Wilson, 713 F.3d 887 (7th Cir. 2013) (contrast on witness calling and alibi strategy)
Fox v. Ward, 200 F.3d 1286 (10th Cir. 2000) (recognizes strategic choices in waiving closing)
United States v. Kamel, 965 F.2d 484 (7th Cir. 1992) (duplicate entry to emphasize prejudice framework)