Haynes v. Cain, 298 F.3d 375

Haynes v. Cain

298 F.3d 375

5th Cir.

2001

Check Treatment

Docket

*1 HAYNES, Brandon Petitioner-

Appellee, CAIN,

Burl Warden Louisiana State

Penitentiary, Respondent-

Appellant.

No. 00-31012. Appeals,

United States Court of

Fifth Circuit.

July *2 Atty. Dist. M. Asst. Estopinal,

Cаtherine LA, Respondent for Shreveport, (argued), Appellant. JOLLY, KING, Judge, and Chief

Before JONES, HIGGINBOTHAM, DAVIS, BARKSDALE, WIENER, SMITH, GARZA, DeMOSS, M. EMILIO STEWART, PARKER, BENAVIDES, CLEMENT, Circuit DENNIS Judges.* GARZA, Judge: M. Circuit EMILIO Cain, of the Louisiana the warden Burl (the “Warden”), Penitentiary appeals State a writ of grant court’s habe- the district Haynes pursuant to corpus to Brandon Amendment 2254 on his Sixth 28 U.S.C. A of counsel claim. ineffective assistance court, ha- analyzing Haynes’ panel of this Antiterrorism and petition under the beas Penalty Act of 1996 Death Effective 104-132, (“AEDPA”), 110 Stat. Pub.L. ruling. affirmed the court’s district majority panel held concede counsels’ decision to of second lesser-included offense capital in a murder amounted murder to a constructive denial of counsel under 648, 104 States v. United (1984). We L.Ed.2d banc, vacat- rehearing thereby granted en Fifth Cm. R. panel opinion. See ing the 41.3. Cоurt clari- Subsequently, Walker, Clay (argued), IV Walk-

Henry excep- LA, scope fied of the second Cronic er, for Lyons, Shreveport, Tooke & —Cone, in Bell v. tion to Strickland Petitioner-Appellee. * death, participate en banc court. in the subsequent did not Because of illness Politz, panel, Judge Henry A. a member of -, -, building to the roof of the pro- where he - (2002). rape ceeded to and rob her. At L.Ed.2d some point during rape applies robbery, Yang Court reaffirmed that Cronic either fell or was thrown off the those cases in which defense counsel “en- roof of the *3 ten-story building. Construction tirely fails to workers body discovered her following testing.” morning. adversarial — An autopsy revealed that at-, Yang had died as (quot- injuries a result of from fall. The ing 466 U.S. at 104 S.Ct. 2039). autopsy also found several non-fatal cuts importantly, More it clarified that Yang’s body, on which the medical examin- attorney’s complete, an failure must be er believed were compliance or torture noting that the difference between the sit- wounds, as well as semen residue uations addressed Strickland Cron- Yang’s vagina and rectum. degree ic is “not of but of kind.” Id. We now determine whether the must Louisi- subsequently Police Haynes identified as ana application state court’s Strickland suspect based on video tapes surveillance Washington, Haynes showing upper floors of the (1984) 2052, 80 L.Ed.2d 674 in this case turning Medical Center off other surveil- to, contrary an was involved unreason- attack, night lance cameras on the of the of, application able established fed- eyewitness as well who confirmed so, eral law. In order to do we Haynes in fact in building was on Haynes’ attorneys’ decide whether decision the night Yang Haynes was killed. partially concede resulted degree arrested and indicted for first mur- constructive denial of counsel under Cron- der. ic, it strategy, or whether was a valid trial establishing Haynes’ evidence in-

which we review under the usual test for volvement in the abduction and killing of constitutionally adequate assistance of Yang was substantial. In addition to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍counsel articulated tapes eyewitness video surveillance and an in Strickland. placing Haynes the Medical Center crime, night police of the found human

I pants. blood in car and on his wallet, They Yang’s also recovered which 1993, Haynes Octobеr was em- Haynes had hidden in the wall of his home. ployed project on a construction at the Moreover, analysis DNA established that University Louisiana State Biomedical it was semen that was found in Shreveport, Center Louisiana. Around the victim. midnight Haynes on October en- Center, trial, tered the Medical prosecution LSU At theorized that located next Haynes intentionally Yang the construction site. killed dur- walking through While the Medical of her rape Cen- course and armed ter, Haynes robbery.1 Haynes’ attorneys’ encountered a female gradu- strategy two student, ate Fang Yang, solely avoiding degree who was conduct- aimed a first ing research in it possibili- one Medical Center’s murder conviction and with the Haynes forcibly Yang ty penalty. laboratories. оf the death Defense counsel took law, 14:30A(1). first-degree 1. Under Louisiana murder The enumerated offenses include requires proof "specific of a intent to kill or to aggravated rape, kidnaping, great bodily during inflict harm” the course robbery. and armed of an enumerated offense. See La. R.S. Haynes impris- to life the evidence established therefore sentenced conceded and robbed kidnaped, raped, possibility parole. onment without the Haynes that it did not argued establish See La.Code Crim. Yang, but P. art. 905.8.3 The intentionally killed her. appellate supreme courts Louisiana counsel, Thus, according to defense subsequently upheld Haynes’ conviction on for second Haynes only could be convicted appeal. direсt degree murder.2 sought post-convic- then state Haynes’ coun- strategy, Pursuant to this relief, alleging tion that he had received statement, sel, during opening began trial ineffective assistance of counsel at “up that he would be by telling the because of his counsels’ unauthorized con- *4 them. He conceded that front” with guilt. The Louisiana partial cessions of kidnaped, raped, Yang and robbed Haynes' Strickland, Appeal, applying Court of de- perished shortly that the victim after upon finding nied relief coun- defense occurred. He then con- these offenses part were of a partial sels’ concessions overwhelming trasted the evidence estab- strategy trial valid succeeded paucity facts of evi- lishing these with See State avoiding penalty. the death Haynes’ intent to regarding specific dence Haynes, (La.Ct.App. 662 So.2d 852-53 Yang. kill 1995).4 Following opening the defense’s state- ment, Haynes addressed the court outside Haynes peti- then filed a federal habeas objected presence jury. Haynes tion, renewing his ineffective assistance of attorneys’ to his concessions and stated claim. court granted counsel The district Haynes was innocent. that he further Haynes’ petition, concluding habeas specifically requested stated he court applied the state the incorrect attorneys any his make concessions not claim. legal evaluating standard regarding his for the commission of Specifically, the district court held that Haynes the offense. also the court asked Haynes’ attorneys’ partial concession of attorneys. to appoint new The state trial without consent constituted a court request, assuring denied his him that Relying constructive denial of counsel. lawyers he had testify excellent and could Haynes the court held that if he wished. attorneys’ to show that con- required him, actually jury prejudiced The cessions as re- found of first murder, Strickland. degree quired by reaching but its de- agree could not on an cision, appropriate punishment. The trial court the district court did not discuss or law, 2. Under Louisiana mur- P. art. 905.8. La.Code Crim. applies person during der where a dies offense, initially course of an enumerated did not seek relief in the but de- specific fendant lacks the to kill the Supreme intent Louisiana Cоurt. The federal dis- 14:30A(2). victim. See La. R.S. § trict initial court dismissed his 2254 habeas petition without for failure to ex- 3. La.Code Crim. P. art. 905.8 provides: haust state law remedies on his ineffective The court shall sentence tire defendant in claim. The Louisiana assistance with accordance the determination of the Supreme Haynes' petition Court denied for a jury. unanimously unable If review. In re writ certiorari and/or determination, agree on a the court shall (La. 1996). Haynes Haynes, 667 So.2d 1050 impose imprisonment a sentence of life petition. then filed the instant federal probation, parole without benefit of or sus- pension of sentence. (1997). AEDPA, deferential scheme. The 138 L.Ed.2d 481 apply AEDPA’s Under we must defer to the state the district court’s habeas court panel majority affirmеd to, contrary unless its decision “was or decision. an application involved unreasonable II law, established Federal as deter mined Supreme Court the United maintains that the district The Warden 2254(d)(1).5 States.” U.S.C. Because panel majority court and the erred the district failed court to conduct its re granting federal habeas relief because the AEDPA, view under applying instead court’s decision was not con- state habeas novo, Supreme precedent Court’s de it vio to, of, trary application unreasonable lated AEDPA’s dictate that federal district In re- clearly established federal law. courts should defer to state habeas court sponse, Haynes asserts that the state ha- adjudication decisions unless their is either contrary court’s decision was to clear- beas to,” “contrary applica or an “unreasonable federal law ly established because of, clearly tion” established applied wrong legal state court stan- precedent.6 v. Taylor, Williams Specifically, Haynes dard. maintains that 362, 404-405, the state court should have evaluated his (2000). “contrary *5 to” and the ineffective assistance of counsel claim un- “unreasonable in application” clauses Thus, der Ooracinstead of Strickland. 2254(d) § have independent meaning. Id. according Haynes, to the district court may A federal court habeas issue a writ properly granted habeas relief. “contrary under the “if to” clause the state Haynes filed his Because habeas applies court a rule different from the 12, 1999, July on our review petition is governing [Supreme law set forth the by cases, AEDPA. Lindh v. Mur governed See if it a Court’s] decides case differ 320, 326-27, 2059, 117 phy, ently Supreme 521 U.S. S.Ct. than done [the Court] ha[s] provides: § acknowledging 5. 28 U.S.C. 2254 that the evidence estab- (d) lishing a lesser included offense is over- application An for a writ of habeas cor- pus person custody pursu- whelming a on behalf of that is at the core of the Strickland / judgment ant the a to of State court shall Cronic distinction in this context. Underwood granted respect any not be with claim Clark, 473, (7th 1991) 474 939 F.2d Cir. adjudicated that was on the merits in State (Posner, J.) (stating lawyer that “if his told the proceedings adjudication court unless the closing argument, 'my client has de- the claim— plead guilty,' cided that would a forced be (1) resulted in a decision that was con- plea closing argument ... it is otherwise if in to, trary ap- or involved an unreasonable acknowledges the the counsel what course of of, plication clearly established Federal particular trial has made undeniable-that on a law, Supreme by as determined Court overwhelming”). count the evidence of is States; of United Moreover, accord the state the dissent fails to 2254(d)(1). 28 U.S.C. proper habeas court's decision the AEDPA 6. The dissent does likewise. It contends that compelled conces- deference dissent's Supreme this case is controlled Court's sions. AEDPA's deferential scheme is decision in Faretta. The dissent does not ad- review, giving touchstone for federal habeas fact, attempt distinguish dress or Bell. In possi- “effect to state convictions to the extent inapplica- the dissent concedes that Cronic is Williams, at ble under the law.” 529 U.S. Haynes' attorneys’ ble and conduct was not Circumventing 404. this scheme and essen- deficient under Strickland. The dissent finds tially retrying a state decision on federal ha- Haynes' a because at- constitutional violation Congress's contrary is intent to beas review offense, torneys a included conceded lesser limit the role the federal in this area. courts ignores but it that basic distinction between conceding only dispute factual issues in 380 that the cost of liti- the accused materially indistinguishable a set case is gating particular their effect 122 at 1850. Under S.Ct.

facts.” Cronic, 658, clause, unjustified.” 466 U.S. at 104 a feder application” “unreasonable Supreme if has iden- may grant a writ 2039. The Court habeas S.Ct. al habeas court implicating correctly identifies the tified three situations court “the state presume will principle [the from Su to counsel where the Court governing legal unreasonably prejudiced. petitioner but has been decisions preme Court’s] —Bell, -, -, particular at S.Ct. it to the facts U.S. applies 914, -. at case.” Id. is petitioner First are situations which a analyzed in Bell stage counsel at a critical denied “contrary to” under AEDPA’s similar case Bell, 122 at proceeding. S.Ct. criminal argued that petitioner in which the clause at (quoting counsel en- applied because defense Cronic 2039). Second, most relevant prosecution’s tirely failed submit here, petitioner in which a is are situations testing. Id. meaningful adversarial trial, but his or rеpresented by counsel Ordinarily, on an ineffective as- prevail fails to “entirely her counsel claim, peti- a habeas sistance of case to adversari- satisfy familiar tioner must Strickland’s testing.” Finally, prejudice pre- Id. Strickland, two-part test. sumed when the circumstances surround- First, “a defendant must petitioner’s attorney prevent a trial representation demonstrate that ‘counsel’s rendering from effective assistance of objective of reason- fell below standard Alabama, (citing Id. Powell v. counsel. ableness,’ being with reasonableness 57-58, 77 L.Ed. judged professional prevail- norms under *6 (1932)). 158 ing at the time counsel rendered assis- Collins, 612, tance.” 21 F.3d Andrews the second argues (5th Cir.1994) Strickland, (quoting 621 466 applies in this instance and exception 2052). 688,104 at When assess- U.S. establishing therefore he is relieved from attorney’s performance whether an prejudice. Specifically, he contends deficient, indulge the court “must subject prosecu the his counsel failed to strong presumption that counsel’s conduct meaningful tion’s case to adversarial test range falls within the wide of reasonable constituting ing on the individual elements Strickland, professional assistance.” 466 the lesser-included offense of second de 689, Second, at if 104 S.Ct. 2052. Bell, Supreme In the gree murder. Court deficient, defendant “[t]he attorney’s failure to sub clarified when an prob- must that there show reasonable ject meaningful prosecution’s the case to that, ability unprofession- for counsel’s but testing in a constructive adversarial results errors, proсeeding the result of the Court, reiterating The denial of counsel. A would have been different. reasonable Cronic, language attorney in stated that an probability probability is a sufficient to “entirely subject prose must to the fail[ ] in the outcome.” undermine confidence meaningful cution’s case to adversarial 694,104 Id. at S.Ct. 2052. prejudice testing” presumption for the (quoting in 122 at 1851 apply. Court’s decision to 2039) Cronic, at very exception Cronic created a limited words, In an two-part (emphasis original). other application of Strickland’s attorney completely challenge fail to likely test in situations that “are so just for testing excep- individual adversarial the Cronic prosecution’s Johnson, tion Critically purposes apply. of it. Id. for Gochicoa v. elements (5th Cir.2000) further noted that F.3d appeal, (holding of this “[wjhen or the defendant applying when Strickland receives at least assistance, some op- prove distinction between counsel’s failure to he must pose prosecution entirely and the fail- in order to obtain relief for inef- specific points ure of counsel to do so at fective assistance of (quoting counsel” Johnson, ... during the trial is a “difference not of Goodwin v. 132 F.3d 176 n. (5th Cir.1997))). Thus, ra- degree but of kind.” Id. Under this analyzing ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍when tionale, an oppose attorney’s when counsel fails decision regarding conces- trial, specific points or con- sion of prosecution’s courts have found cedes certain elements of a case to focus constructive denial only of counsel in those others, a tactical he has made decision. instances where a attorney defendant’s choices, By making only Id. at 1851-52. such concedes the factual in dispute. issues Swanson, defense counsel has not abandoned his See United States v. 943 F.2d (9th Cir.1991) by entirely failing challenge her client (holding that “[a] lawyer prosecution’s strategic case. Such de- who informs the that it is his cisions do not result in an abandonment of view of the evidence that there is no rea- counsel, attorney completely regarding only as when sonable doubt factual challenge issues that prosecution’s dispute utterly fails case. are has failed then, reasoning, Under the Court’s Cronic case to mean- contrast, only ingful testing”). is reserved for those extreme cases adversarial present any which counsel fails to defense. those courts that have' confronted situá- presume prejudice We such cases be- tions which defense counsel concedes cause it is as if defendant no the only defendant’s for lesser-includ- contrast, representation consistently at all. strate- ed offenses have found these decisions, or tactical are un- gic partial decisions evaluated concessions to be tactical two-pronged der Strickland’s traditional and not á denial of the to counsel.7 such, deficiency they analyzed test for prejudice. As them under two-part Strickland test. Previous circuit court decisions have *7 Haynes’ elaborated this distinction between inef- the instant defense entirely fective assistance of counsel and the con- counsel did not fail to the Collectively, prosecution’s structive denial of counsel. to meaningful case adversari- Rather, testing. Haynes’ attorneys these decisions reinforce the notion that al ac- entirely knowledged prosecution’s defense counsel must fail to sub- that evi- ject that prosecution’s establishing Haynes raped case dence and Short, v. See United States during closing arguments a included F.3d of lesser (5th 1999) (holding 624-5 Cir. that counsel's offense was "a sound tactic when the evi- statements, guilt, which did not admit but overwhelming dence is indeed ... and when defendant, implicated which were reason count, question the count in is a lesser so that light overwhelming able in evidence advantage gained winning there is an to be Bowersox, trial); Lingar presented at McNeal v. Wain- jury”); the confidence of the (8th Cir.1999) (stating F.3d that "the (11th 1984) wiight, 722 F.2d Cir. charge decision to concede of the lesser (finding attorney's statements that McNeal's second-degree of a murder was reasonable manslaughter during conceding a murder tri- complete tactical retreat rather than a surren strategic and did not were tactical Clark, der”); Underwood v. 939 F.2d at 474 guilty plea). a constitute forced (concluding that defense counsel's concession standard, legal the sole remain- overwhelming. After the correct Yang

robbed concession, however, specific this making adju- court’s ing issue is whether the state trial, active at attorneys remained Haynes’ claim under Haynes’ dication of Strickland in weaknesses probing application” an “unreasonable of involved They intent. cross- issue of on the case. that standard to the facts of this emphasize witnesses to state examined reviewing this case under Because we are which were glasses thick Yang wore that scheme, Haynes AEDPA’s deferential that the victim landed located never merely that the do more than show must fell, supporting then- she down when face incorrectly applied state habeas court accidentally fall- may have she theory that Rather, to this case. he Strickland Haynes. They from to flee trying when en that the Louisiana Court of demonstrate Yang’s pants testimony also elicited objectively in an Appeal applied Strickland in an pulled down оnly “slightly” were manner. unreasonable See U.S.C. that she could have run to show attempt Williams, 2254(d)(1); own De- power. under her off the roof strategy this hoped fense counsel 120 S.Ct. 1495. graphic nature of de-emphasize

would demanding Haynes’ counsel faced the jury’s atten- and would focus the crime a accused defending task of client who was prosecu- area where the the one tion on committing a brutal and senseless exceedingly strong. case was tion’s nearly had conclu- prosecution crime. The sum, in is not a situation which this robbed, proof Haynes raped, sive attorneys abandoned their client. Haynes’ Yang. prosecution The then murdered Instead, represent him they continued trial, videotape eyewit- of the defendant and adopt- the course throughout in strategy judgment their at the tеstimony placing ness both opportunity the best for accorded crime DNA test results established scene. Ultimately, then- outcome. favorable that his semen was found in the victim. avoiding effective strategy proved knife, police found a which could client. As the for their Su- penalty death victim, caused the cuts found when de- preme indicated Court police car. The also located strategy, even if it pursue fense counsel Yang’s wallet in home. Given conceding certain elements or re- involves overwhelming evidence defense counsel specific points during maining inactive faced, Appeal the Louisiana trial, will examine the effectiveness we concluding not unreasonable propriety and the performancе of their Haynes’ at- strategy ultimately adopted by Bell, 122 under their decisions Strickland. obtaining torneys likely succeeded Thus, we hold that the at 1851-52. possible outcome under the circum- best properly Louisiana state court identified *8 stances. governing legal as the correct Strickland Haynes’ which to evaluate principle under Nevertheless, it that the plausible is claim.

ineffective assistance of counsel Haynes’ attorneys of to obtain his failure adjudication Haynes’ state court’s perfor- constitute deficient might consent therefore, was not con- petition, habeas assuming, mance under Even Strickland. trary federal law. to established however, established de- that has Ill failed to show performance, ficient he has preju- to establish prejudice. For that the ha- Having concluded state dice, there a rea- claim he must “show that is beas court evaluated under that, through defense of lack of intent cross- but for counsel’s probability sonable errors, the result of the unprofessional examination examination witnesses different.” have been proceeding Thus, would argument. the adversarial pro- Strickland, at Amendment, protected by cess the Sixth nearly prosecution’s the 2052. Based on Cronic, preserved. as described Haynes commit- evidence that conclusive acting The accused had “counsel in the the Louisiana question, offense in ted the Cronic, an advocate.” role of 466 U.S. at that properly concluded Appeal Court of (citation 656, 104 footnote establish that with- Haynes had faded to omitted). “require[d] Defense counsel the strategy, he would have out the concession prosecution’s case to survive the crucible degree murder. acquitted of first been id., meaningful testing,” adversarial on cannot show that Consequently, Haynes of first or second mur- question conclusion that he habeas court’s state and, important, more it fail der caused to attorneys’ strat- prejudiced by testing question life or objectively unreasonable. egy was guar- death sentence. The constitutional here, antee was not violated because “the IV its character as a process [did not] lose[ ] that the state court’s decision We hold Id. confrontation between adversaries.”1 applying Strickland inеffective 656-57,104 at S.Ct. 2039. counsel claim was not “con- assistance of law set forth trary governing to” the however, disagree, majority’s I with the ineffective assis- Court for perhaps implication unintentional Moreover, tance of counsel cases. we hold presumptive second “situation” of Cronic’s unreasonably court did not that the state applies only ineffectiveness where the de- apply Strickland the facts of this case. attorney completely challenge fails to fense reasons, RE- foregoing we Based is, only when prosecution’s of a writ grant the district court’s VERSE attorney totally has abandoned his Haynes. corpus of habeas client, represen- if no the defendant had Maj. I believe Op. tation at all. DENNIS, concurring: Judge, Circuit thе second Cronic exception applies, and majority correctly my judgment, when counsel presumed, is even Haynes’s defense counsel concludes defense, if some effort at a makes subject pros- “entirely ] did not fail[ meaningful attempt challenge makes no meaningful adversarial ecution’s case if example, case. For prosecution’s testing.” United States represents the defense counsel his client reason, but, good trial for no fails to cross- (1984). counsel, my opin- Defense fink- only prosecution witness examine the ion, de- subjected prosecution’s first crime, he fails ing the defendant with murder case to adversari- gree entirely to establish a testing by attempting impossible explained, do what or unethi- Cronic Even if that counsel 1. As the Court may made demonstrable defense counsel fide defense to the cal. If there is no bona errors, criminal a true adversarial "[w]hen may charge, create one and counsel cannot *9 ... the kind of test- trial has been conducted by attempt- of his client disserve the interests ing by Sixth Amendment has envisioned 19, Id. at 657 n. 104 a useless charade.” 656, 466 U.S. at 104 S.Ct. 2039. occurred.” S.Ct. 2039. require does not Sixth Amendment ”[T]he 384 In ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍testing.2 my strategy early stage fense counsel’s at the meaningful adversarial

to trial, Haynes in language right and loose of the did not assert his opinion, the broad — 1843, Cone, U.S.-, 122 or self-representation S.Ct. to call for the Bell v. (2002), not discharge attorneys. Consequently, 914 intended of his meaning judge of Cronic’s second the trial not into the inquire to alter the did intelligence Court dealt with voluntariness or of such a non- situation. Cone affirmatively Subsequently, Haynes failure to claim. con- counsel’s existent defense adducing rep- sufficient available tinued to allow the defense counsel to defend not evidence; him, per not a testify this was se resent and he elected not to mitigating subject as failure to trial to protest strategy dereliction such or further the trial circumstances, adversari- pursued. Under these Moreover, in keep we should either testing. self-representa- waived his of the per properly mind that the discussions se tion claim or failed to raise and preserve both Cronic and it for our In either prejudicial situations review. dicta those cases and of theory Cone constituted reversal his conviction on the holdings rigid or were not intended he has suffered violation of his Sixth absolutely governing right rules future unfore- self-representation Amendment is seen cases. designat- unwarranted based on the record ed for our review. hand, I disagree my the other with

On colleagues, because I do not dissenting PARKER, Judge, ROBERT M. Circuit think that the defendant’s Sixth Amend- joined WIENER, DeMOSS, Circuit right of the of self- ment claim of denial Judges, dissenting from the en banc representation timely properly has been opinion: self-representation right raised. The California, in Faretta v. The fundamental announced issue this case is 2525, 806, 95 S.Ct. L.Ed.2d 562 whether the Amendment Sixth and Due (1975), to several is limitations. Process Clause of the Fourteenth Amend- recognized, Faretta opinion give right require “As the ment a defendant the right self-representation appointed every is absolute. his counsel to contest ‘voluntarily charged The defendant intel- crime when the defendant informs defense, ligently’ judge elect to conduct his own and his appointed counsel that require him most courts to do so a he is innocent and wants an “actual inno- timely manner.” Martinez v. Ap- California, cence” defense.1 Faretta v. of 152, 161-162, 806, peal 2525, California, 528 U.S. S.Ct. 45 L.Ed.2d 562 of (2000) (cita- (1975) 684,145 Janis, 1, L.Ed.2d 597 and Brookhart v. 384 U.S. omitted). (1966) 1245, objecting tions After to his de- 86 S.Ct. 16 L.Ed.2d 314 dem- situation, example 2. As an of ‘would be error constitutional of the first analogy judicial Cronic Court drew an de- magnitude preju- and no amount or want of ” cross-examination, right nial which dice would cure it.' 466 U.S. at constitute a had been held to Sixth Amend- (citing 104 S.Ct. 2039 Davis at any showing preju- ment violation without 1105). Alaska, dice in Davis v. (1974). Wayne 39 L.Ed.2d 347 See 3 using the term "actual innocence” de- al., LeFave, R. et Criminal Procedure fense, I mean a defense which defense 11.7(d) (2d ed.1999). specific n. 45 "No attorney does not admit the defendant showing required in [Davis] government and holds the to its burden petitioner because the had been 'denied the proof charged effective cross-examination' on each crime. *10 himself, II. THE not his MAJORITY’S ERROR the accused onstrate that authority to de- lawyer, has appointed majority opinion The rests on the incor- lawyer should concede whether his cide rect assumption defendant’s Sixth these charge. Because guilt to a lesser Amendment claim is controlled Strick- law, the clearly established two cases are land. It is not. This case raises a much of the Strickland aрplication state court’s goes very broader concern that to the core governing le- the correct test misidentifies of what the Sixth Amendment means and “contrary and is therefore gal principle, important questions asks us to address I federal law. to” established involving, process due and grant affirm the of would therefore fair trial. habeas writ. undisputed Haynes’ defense It is 1. INITIAL OBSERVATIONS to the Haynes’ guilt counsel conceded as analysis proceed- of the trial court My degree charge during open- second murder First, following.

ings indicates the Subsequently, Haynes in- ing statements. overwhelming. Haynes’ guilt evidence of judge formed the trial that he wanted to Second, trial counsel were well- Haynes’ then judge address the court. sent profes- him with a prepared prоvided out, jurors counsel stated Third, trial counsel’s deci- sional defense. anything Haynes against said was charge guilt to concede on the lesser sion Haynes unequivo- of counsel. then advice in the face of degree of second murder cally asserted: as to that overwhelming evidence to take charge approach was a successful lawyers I with what agree don’t these Haynes penalty. the death spared in that it I’m doing, talking guilty are about (conviction Fourth, the outcome of the case I’m degree guilty second murder. not a life sen- degree for first murder with degree degree. or first If that of second parole) was a possibility tence without way they going represent are is the overwhelming rehable one based me, they jump need to over there with guilt. evidence of the defendant’s They ain’t me. representing the D.A.’s. reasons, trial perfor- For these counsel’s jurors that I’m of second Telling ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍mance was not deficient under Strickland’s trying represent ain’t me no degree certainly prong first they way. disagree I with what kind of approach the trial counsel’s prejudiced doing. are prong. under On Strickland’s constitute an If own words do not contrary, proba- trial counsel’s tactic was innocence, words plea of actual no explicit Thus, bly Haynes’ apply- best interest. respect my all due ever will. With ing strictly analysis, a Strickland majority, colleagues Strick- learned relief.2 would not be entitled to habeas possibly purport to control view, land cannot However, my Strickland doеs not defense counsel con- situation for an- appropriate framework provide to second the defendant’s this cedes alyzing case. - ("When we L.Ed.2d 914 at did contest the first Because trial counsel charge, the defendant was not possibility presum- murder in Cronic spoke completely of counsel. denied assistance attorney's ing prejudice on an failure based Therefore, agree majority I with the prosecutor’s we indicated that test Cronic exception applicable to this case. is not complete”). attorney's failure must be Bell,-U.S.-at-, See *11 386 (1983) (BREN- 3308, objection express over the 987 murder

degree NAN, J., dissenting). when the record of the defendant shows that the defen- unambiguously and course, right a defendant’s to make Of judge declared to the trial forcefully dant concerning certain decisions his own de- charged of all crimes that innocent he is against fense must be balanced the reali- “actual innocence” defense. and wants an Oftentimes, ties of a trial. counsel will quick during Amendment of the have to make a trial The Sixth United decisions guarantees impact the defendant. Defendants “[i]n States Constitution not be entitled to on ineffec- prevail the accused shall should prosecutions, all criminal merely tive assistance of counsel claims ... to have the Assistance enjoy right Const, mi- disagrees because the defendant with for his of Counsel defence.” U.S. tactical Faretta, attorney. nor decisions made his amend VI. Admittedly, may there be some cases recognized, examining in the context of where the line minor tactical between deci- right self-representation, defendant’s properly attorney sions reserved right that an to defend himself accused’s completely and fundamental decisions left personal right. against government is to the defendant will be difficult to draw. right predicated This on re- personal is This is not one of them. liberty individual’s spect for the make his own choices as to his defense for it is The ultimate decision as to whether to himself who must bear the individual plead guilty guilty or not is left to the Faretta, consequences of those choices. Janis, defendant. See Brookhari v. 384 834, U.S. 1, 7, 16 L.Ed.2d 314 (1966); Barnes, Jones v. right Because the to defend oneself is (noting 103 S.Ct. 3308 that the accused has personal, only trial counsel is an “assis- authority the ultimate to decide whether to tant” and to the defendant not the master ease, plead guilty). the instant it is Consequently, right of the defense. (1) perfectly Haynes pleaded clear that necessarily of counsel” entails “assistance consistently and maintained in- his will be able to the defendant make (2) nocence; Haynes communicated to regarding certain fundamental decisions both the trial judge lawyers and his representation. his One of those counsel’s he not guilty any charged of the fundamental decisions be whether to crimes and wanted his lawyers repre- charge. concede as to lesser As him in sent a fashion that comported with Justice Brennan eloquently stated: contention; (3) lawyers refused to Faretta right establishеs that mount a defense which contested both sec- counsel is more than a (4) degree murder; ond degree first presented one’s case competently and trial judge told that he was effectively. It predicated is on the view stuck with appointed counsel and their tri- that the function of counsel under the wanted; strategy regardless of what he protect Sixth dig- Amendment is to (5) trial counsel conceded nity autonomy person of a on trial guilt as to degree through- murder him assisting making choices that out the trial. make, are his to not to make choices for him, although may be better Trial counsel’s concession as to able to decide which tactics will be most charge on the second murder only effective for the defendant. Jones v. can bе described as the functional Barnes, to a equivalent guilty plea forced over the However, absolutely this irrelevant point See State defendant. objection before us. The Constitution 1148 to the issue 14 P.3d Carter, Kan. *12 guilt mandates that the decision to concede (Kan.2000) (defense strategy of counsel’s charge must be made lesser attempt felony murder conceding accused, attorney, regardless of not his degree murder of first conviction prevent attorney may how difficult it be for the maintained his defendant though the even charges. on all See Nix- the mount a defense crimes was charged on all innocence (Fla. 618, 625 Singletary, on v. 758 So.2d entering equivalent to functional 2000)(“In criminal a defense every the Sixth Amend- violated both plea and leаst, can, hold the attorney very at the rights to process due ment and defendant’s clearly proof by its burden of trial); 758 State to Singletary, v. fair Nixon (Fla.2000)(counsel’s fact-finder that articulating com- So.2d must establish each element State defendant’s were conceding ments charged crime and that a conviction guilty plea). of a equivalent the functional Faretta, upon proof beyond a view, only can be based Brookhart Jones my doubt”). No trial can be con- Amend- reasonable the Sixth clearly establish that constitutionally fair when an attor- sidered when counsel concedes violated ment is authority to ney given override lesser crime over guilt as to a accused’s nothing and accused’s wishes to concede objection. exрress the accused’s government proof hold the to its burden of short, the constitutional charge. on each criminal he wanted to decide whether charge. on a lesser to concede I dissent. he trial counsel Haynes informed both sec- a defense that contested

wanted degree murder. and first

ond a defense. such

They provide refused it, not have the I trial counsel did

As see to make that decision.

authority pro- lawyers refused

Because defense de- vide the “actual innocence” America, UNITED STATES client, judge by their the trial manded Plaintiff-Appellee, who appointed new counsel should decision to contest would follow CUYLER, Jr., Lee Kimber so The failure do charges.

all criminal Defendant-Appellant. rights. Haynes’ constitutional violated court’s determination The state No. 01-50947. not vio- rights were Haynes’ constitutional ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of Appeals, States Court United contrary established lated was Fifth Circuit. law, by the United federal as determined Court. See U.S.C. States July 2254(d)(1).

III. FINAL THOUGHTS to concede

Trial counsel’s decision degree mur-

Haynes’ guilt on the second a wise move. charge probably

der