544 U.S. 936 | SCOTUS | 2005
Dissenting Opinion
dissenting.
In this case, the Court of Appeals for the Sixth Circuit held that respondent Derrick Quintero was entitled to federal habeas
Respondent was convicted in Kentucky state court of escaping from prison with two other inmates. The jury to which the Commonwealth tried him included seven members who had served on a jury that had convicted one of the other escapees, Billy Hall. Respondent’s trial counsel represented Hall at Hall’s trial, which was held on October 16,1989. Final Brief for Petitioner/Appellee in No. 99-6724 (CA6), p. 7.
Respondent was tried almost two months later, on December 11, together with the other escapee, James Blanton. Respondent and Blanton both admitted their factual guilt; their only defense was that the escape was a necessary “choice of evils,” because they were in imminent danger of physical harm while in prison. Pet. for Cert. 5. The trial judge rejected that defense as a matter of law and declined to submit it to the jury. Respondent did not object to the composition of the jury on the ground that it contained jurors who had participated in Hall’s trial and therefore, as a matter of state law, forfeited any claim of error based on that ground.
Respondent sought federal habeas relief, claiming that the trial had infringed his constitutional right to an impartial jury. Respondent argued that his counsel’s failure to object to the composition of the jury was ineffective assistance of counsel, thereby excusing his forfeiture of the jury-bias claim. The Court of Appeals agreed and excused the procedural default, holding that counsel’s failure to object constituted per se ineffective assistance of counsel under United States v. Cronic, 466 U. S. 648 (1984). Quintero v. Bell, 256 F. 3d 409, 413-415 (CA6 2001). Cronic established that certain failings of counsel justify a per se presumption of ineffectiveness, see 466 U. S., at 658-659, notwithstanding the general rule that to demonstrate ineffectiveness, a defendant must show that his counsel’s performance was both deficient and prejudicial, see Strickland v. Washington, 466 U. S. 668, 687 (1984).
The Court of Appeals did not claim that counsel’s failure to object to the composition of the jury fell into one of the three categories of error that Cronic recognized. See Cone, supra, at 695-696 (discussing Cronic’s three categories). Instead, it rea
We granted the warden’s petition for certiorari, vacated the Court of Appeals’ judgment, and remanded the case in light of Bell v. Cone, supra. Bell v. Quintero, 535 U. S. 1109 (2002). In Cone, we reversed a Sixth Circuit decision that had misapplied Cronic. Cone involved a habeas petitioner who had been convicted of capital murder and sentenced to death. At the penalty phase of petitioner’s trial, petitioner’s lawyer called the jury’s attention to mitigating evidence that had been presented to it during the guilt phase of the trial, showing petitioner’s disturbed mental state and drug addiction. 535 U. S., at 691. Nevertheless, the Court of Appeals concluded that counsel had failed to subject the case to “‘meaningful adversarial testing’” at the penalty phase — one of the three recognized examples of Cronic error, see 535 U. S., at 695-696 — because counsel had failed to present additional mitigating evidence, • and because counsel had waived final argument. Cone v. Bell, 243 F. 3d 961, 979 (2001) (quoting Cronic, supra, at 656). We reversed, reasoning:
“When we spoke in Cronic of the possibility of presuming prejudice based on an attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be complete. We said ‘if counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.’ Cronic, supra, at 659 (emphasis added). Here, respondent’s argument is not that his counsel failed to oppose the prosecution throughout the sentencing proceeding as a whole, but that his counsel failed to do so at specific points. For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.” 535 U. S., at 696-697.
After we vacated and remanded its judgment in light of Cone, the Court of Appeals in the decision below again held that re
The Court of Appeals committed the same error we corrected in Cone. It held that respondent’s counsel failed to subject his case to meaningful adversarial testing. Yet our decision in Cone makes clear that for a court to “presum[e] prejudice based on an attorney’s failure to test the prosecutor’s case, ... the attorney’s failure must be complete.” 535 U. S., at 697; accord, Florida v. Nixon, 543 U. S. 175, 190 (2004); French v. Jones, 332 F. 3d 430, 439 (CA6 2003). Here, counsel’s failure was far from complete. Respondent’s attorney extensively questioned the veniremen for prior knowledge and bias, put on a necessity defense, cross-examined the Commonwealth’s witnesses, made numerous motions and objections, and delivered a closing statement.
The Court of Appeals’ holding also rests on a confusion — the idea that the presence of a structural error, by itself, is necessarily related to counsel’s deficient performance and warrants a presumption of prejudice. The Cronie presumption is based on the notion that certain “circumstances . . . 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. Those exceptional circumstances encompass instances in which counsel’s poor performance caused the defendant prejudice, not any prejudicial circumstance whatsoever. See Cone, supra, at 695-696 (enumerating examples of Cronie error, all involving circumstances related to whether counsel’s assistance was ineffective). Yet there is no close correlation between counsel’s performance and whether a trial was infected with structural error, much less one so close as to justify a presumption that counsel was ineffective. For example, even competent counsel may fail to object to a biased trial judge or to the exclusion of grand jurors on the basis of the defendant’s race. The structural nature of these defects, see Tumey v. Ohio, 273 U. S. 510, 535 (1927); Vasquez v. Hillery, 474 U. S. 254, 262 (1986), says only that a serious error infected the trial, not that the error resulted from counsel’s ineffective assistance.
The Court of Appeals’ reasoning equally would apply even if counsel’s failure to object to the biased jurors were blameless and the quality of his assistance high. See Quintero, 256 F. 3d, at 415. Even a competent defense lawyer may not have known that the jurors had served previously, for example, if the veniremen
It is also far from clear on the present record that counsel’s failure to object to the biased nature of the jury was blameworthy. The Court of Appeals based its holding that counsel was ineffective on the implicit supposition that he knew that the seven jurors had previously served, yet failed to object to their presence. Quintero, supra, at 415. That assumption is not clearly correct. Almost two months elapsed between the trial of respondent’s coescapee, Billy Hall, and respondent’s trial. Respondent’s counsel was a public defender, and in the shuffle of a heavy caseload may well have forgotten the names and faces of the seven jurors who had served previously. Moreover, counsel extensively questioned the veniremen about possible bias, asked that veniremen be disqualified because they had prior knowledge of the case, and moved for a mistrial on the ground that the entire jury was tainted by pretrial publicity. See supra, at 939-940, n. Counsel’s concern with these sources of jury bias is hard to square with the hypothesis that he knew that seven members of respondent’s jury had served on Hall’s jury, yet ignored such an obvious source of jury bias. In any event, counsel’s performance may well have been deficient, but this lingering factual uncertainty illustrates the danger of presuming — over a decade after the fact and based on nothing more than a federal appellate court’s reading of the cold record — that counsel’s failure to object was per se constitutionally ineffective.
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The Court of Appeals’ decision is one of three Sixth Circuit judgments that we vacated and remanded in light of Cone. See Quintero, 535 U. S. 1109; Mason v. Mitchell, 536 U. S. 901 (2002); Jones v. French, 535 U. S. 1109 (2002). In all three, the Sixth Circuit reinstated its previous opinion and again ordered the writs granted. See 368 F. 3d, at 893 (case below); Mitchell v. Mason,
See Quintero v. Bell, 256 F. 3d 409, 411 (CA6 2001); State Tr. of Evidence 8 (objecting to respondent’s shackling); id., at 11-12 (objecting to respondent’s prison clothing); id., at 15-16 (moving for recusal of the prosecutor); id., at 18-20 (moving for individual voir dire of the veniremen to avoid taint from pretrial publicity); id., at 29-31, 40 (asking veniremen whether they could be impartial, notwithstanding pretrial publicity surrounding the case); id., at 30 (asking that venireman be excused because she expressed bias); id., at 33 (asking if any of the veniremen had seen respondent before); id., at 34-35 (requesting that venireman be excused because she was related to a prosecutor); id., at 36 (moving for a mistrial because many of the veniremen had heard about the escape incident); id., at 37-38 (asking that veniremen be excused because they had prior knowledge of the escape); id., at 39 (asking veniremen if they were related to the prosecutors); id., at 41-42 (moving to dismiss venireman affected by the escape); id., at 43 (asking veniremen if they were related to law enforcement personnel); id., at 51-54, 69-73, 76-78 (cross-examining witnesses); id., at 79, 83-84 (calling respondent to the stand and examining him); id., at 96, 99-100 (calling respondent’s codefendant to the stand and examining him); id., at 110-111 (conducting redirect examination of respondent’s codefendant); id., at 112-114 (calling a prison medical technician to the stand and examining her); id., at 116 (re
Lead Opinion
C. A. 6th Cir. Motion of respondent for leave to proceed in forma pauperis granted. Certiorari denied.