Professional Documents
Culture Documents
Published
Published
No. 14-7245
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:
Before GREGORY
Circuit Judge.
and
SHEDD,
Decided:
Circuit
Judges,
and
DAVIS,
Senior
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.
We
Sixth
Amendment
guarantees
criminal
generally
defendant
must
defendant
the
that
his
counsels
ineffective
assistance
of
counsel,
see
Strickland
v.
where
questionable
actually
that
the
reliability
the
defendant
prejudiced.
believe
that
through
when
Instead,
counsel
substantial
for
portion
of
need
trial
not
show
prejudice
a
of
is
criminal
the
becomes
that
he
presumed.
defendant
trial,
such
so
was
We
sleeps
conduct
case
presents
such
situation.
Nicholas
Ragins
The
evidence
was
is
not
disputed;
it
demonstrates
that
counsel
These
of
counsel
Amendment.
during
his
Accordingly,
trial,
we
in
reverse
violation
the
order
of
the
denying
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,
substantive
offenses
prostitution
and
drug
related
rings.
with
to
conspiracy
their
Following
the
and
other
involvement
in
indictment,
the
charged
offenses
Ragin
against
with
the
two
United
counts:
States,
conspiracy
including
to
commit
enticing
and
2006,
and
witnesses.
Of
direct
included
those
involvement
testimony
witnesses,
in
the
from
six
approximately
testified
conspiracy,
while
about
the
forty
Ragins
remainder
court
alleged,
among
in
which
other
he
complained
things,
that
about
[Mackey]
Mackey.
even
Ragin
had
the
Supp. J.A.
790.
At
sentencing,
the
district
court
calculated
total
Ragins
conviction
and
sentence.
The
We subsequently
United
States
v.
October
1,
2010,
Ragin
moved,
pursuant
to
28
U.S.C.
In the
counsel.
Ragins
seventh
claim
J.A. 27.
was
that
[c]ounsel
fell
affidavit
assistance
of
elaborating
counsel
on
claims.
eight
of
Consistent
his
with
ineffective
his
earlier
Ragin
stated,
Finally
counsel
fell
asleep
twice
during trial which more than shows his lack of interest and
dedication to my case.
After
the
J.A. 64.
government
filed
response
opposing
Ragins
J.A. 113-14.
C.
own
behalf.
The
government
called
Special
Agent
J.A.
prosecutions
case
131.
in
Adolf
chief,
recalled
government
that,
counsel
during
the
approached
J.A. 132.
because we were all sitting there and [Mackey] wasnt moving and
Id.
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].
J.A. 133.
went back into the position that he was [in] before with his
chin
on
his
testifying
fist.
at
the
Id.
time
Adolf
or
what
did
not
document
remember
the
who
was
government
was
showing.
Adolf did not specifically recall any other occasions where
he noticed Mackey sleeping.
J.A. 134-
35.
Similarly, Culler, who represented codefendant Tracy Howard
at
trial,
occasion.
testified
Mackeys
that
he
head
noticed
[was]
Mackey
down
sleeping
. . .
[and
on
he
one
was]
J.A. 145-46.
J.A. 145.
J.A. 146.
J.A.
sleeping
[f]requently
. . .
almost
every
day
. . .
Based
on
the
courtroom
setup,
Mackey
J.A. 153.
was
sitting
We could see
specifically
recalled
that
J.A.
[e]vidence
was
Id.
being
asleep.
appearance
J.A.
during
154.
those
When
times,
asked
Vernon
to
said
describe
that
he
Mackeys
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
J.A. 155-56.
In
addition,
Vernon
testified
that
other
jurors
noticed
Vernon
about
Mackeys
conduct,
the
While
government
did
of
you
defendant.
Id.
Mr.
Mackey
consider
J.A. 157.
resting
that
his
in
head
your
against
verdict
[Ragin],
against
the
Yes.
also
testified
that
Mackey
was
asleep
frequently.
his
initial
allegation,
claiming
that
he
observed
Mackey
initialed
from
the
trial
transcript,
covered
testimony
from
each
indicating
occasions
the
witnesses
who
was sleeping and that Mackey also slept while other witnesses
testified.
the
witnesses
who
were
testifying
or
the
substance
of
Ragin explained
that when he filed the letter and 2255 motion and affidavit,
he
was
acting
transcript.
pro
se
and
did
not
have
access
to
the
trial
Tadeo
J.A.
[were]
saying.
J.A.
182.
The
witness
box
was
could
not
recall
who
was
testifying
at
the
time
Tadeo
Mackey
was
nodding off.
Mackey testified that he did not recall whether he slept
during the trial.
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.
J.A. 222.
D.
After the evidentiary hearing, the district court issued an
order denying and dismissing Ragins 2255 motion.
The court
of
counsel
varies
depending
on
the
evidence:
prejudice
applies
in
all
other
cases
involving
Ragin v. United
for
consideration
the
district
substantial
of
the
court
testimony
f[ound]
portions
11
of
that
the
and
Mackey
trial.
evidence
was
Id.
not
In
support
of
its
finding,
the
court
determined
that
Ragins
trial
that
Mackey
was
asleep
[were]
not
credible
. . .
stage
in
the
proceedings.
Id.
The
court
did
find
months
occasions,
of
and
the
that
trial,
this
that
Mackey
allegation
was
was
asleep
consistent
on
two
with
the
Id.
Further,
the court did not find Vernons testimony credible because she
repeatedly
testimony,
referred
[and]
sentence imposed.
to
may
be
Id.
Ragin
by
his
remorseful
first
for
the
name
during
severity
of
her
the
been
frequently.
effectively
addressed
if
it
were
occurring
so
Id.
Id.
The district
12
trial
transcript,
the
Id.
court
found
that,
based
on
the
Id. at *8.
filed
timely
notice
of
appeal,
and
we
have
II.
A.
We review de novo a district courts legal conclusions in
denying a 2255 motion.
350 (4th Cir. 2008).
of
law
and
fact
addressed
by
the
court
as
to
whether
the
13
assistance claim.
(4th
Cir.
1997)
(Whether
counsels
performance
was
485 F.3d 236, 239 (4th Cir. 2007) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)).
B.
An
accuseds
right
to
be
represented
by
counsel
372
U.S.
335,
344
(1963).
Their
is
Lawyers
Gideon v.
presence
is
essential because they are the means through which the other
rights of the person on trial are secured.
653.
14
687.
First,
performance
was
the
defendant
deficient.
must
Id.
To
show
prove
that
466 U.S.
counsels
deficiency,
Id. at 688.
Second, the
Id. at 687.
A showing of
Id.
rule
Strickland,
also
provided
that
[t]here
are
. . .
Id.
15
fails
to
subject
the
prosecutions
case
to
meaningful
Id.
Id. (citing, as
Cir.
1998).
If,
however,
the
defendant
makes
such
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.
Therefore,
Cronic
errors
are
structural,
requiring
that
inquiring
Sixth
into
counsels
violation
actual
may
performance
be
or
found
without
requiring
the
16
(9th
automatic
Cir.
reversal
2009)
is
(Cronic
required
specifically
where
holds
defendant
is
that
denied
legally
presumed
to
result
in
prejudice
and
thus
to
In
other
words,
counsels
incompetence
can
be
so
of
prejudice.
Strickland,
466
U.S.
at
703
n.2
proposition
that
unconscious
or
sleeping
counsel
is
these
Cronic,
Strickland.
that
circumstances
defendants
must
show
of
presumed
actual
prejudice
prejudice
under
narrow
there
reasonable
probability
that,
but
for
have
been
different.
17
reasonable
probability
is
III.
Although
this
is
case
of
first
impression
in
this
counsel
is
asleep
during
trial.
All
of
these
Muniz,
647
F.3d
at
625-26
(Muniz
must
show
that
his
18
Amendment
right
to
counsel
is
violated
when
that
to
presume
constructively
prejudice
denied
because
counsel.
the
For
defendant
good
reason
has
been
sleeping
United States v.
episodes
to
analysis
[p]rejudice
of
inattention
under
is
the
or
slumber
Strickland
inherent
at
some
are
perfectly
prejudice
test[,]
point,
because
should
go
without
saying
that
[e]ffectiveness
of
and
attentive
in
order
to
make
adequate
cross-
19
prejudice
opportunities
may
are
not
unavailable.
be
visible
The
in
errors
the
and
record,
and
lost
the
Id. (quoting
Javor, 724 F.2d at 834); see also Javor, 724 F.2d at 834-35
([A]n
inquiry
unguided
into
the
speculation
intelligent,
even
question
and
handed
of
would
prejudice
not
application
be
would
require
susceptible
because
an
to
attorneys
834.
Moreover,
the
question
of
prejudice
under
Strickland
20
Of
no
counsel
to
determine
what
options
were
available.
then
grant
the
decision
to
relief
turns
on
the
degree
of
United
21
When an
therefore
conclude
that
Ragin
would
suffer
Cronic
In every case
of
reliability,
is
unreliable
the
result
because
of
of
the
particular
breakdown
in
the
dispositive
circumstances
question
surrounding
in
this
Mackeys
case
is
Thus,
whether
representation
of
the
Ragin
IV.
Because we are left with the definite and firm conviction
that
mistake
has
been
committed
in
the
district
courts
22
some
point.
Two
witness,
testified
that
possibly
two
witnesses,
Mackey
occasions.
including
was
This
asleep
is
the
or
governments
nodding
consistent
with
off
on
Ragins
testified
that
she
noticed
Mackey
sleeping
30
minutes
at
least
at
time.
J.A.
153-55.
She
Moreover,
his
head
against
. . .
the
defendant.
J.A.
157.
23
Yes.
Id.
As it stands, it
more
troubling,
that
the
jurors
may
have
held
Mackeys
she
repeatedly
referred
to
Ragin
by
his
first
name
There
24
witness
occasions.
saw
Mackey
asleep
or
nodding
off
on
different
J.A. 153-54.
see
completely.
[Mackey]
Id.
clearly,
Every
and
other
J.A. 153.
[they]
witness
were
at
The jurors
facing
the
[him]
evidentiary
25
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,
inconsistent
government
there
with,
in
discredits,
testified
that
witnesses
only
proffered
Mackey
nodded
to
that
testimony.
is
The
In fact
governments
any
Vernons
record
Mackey,
call
the
Vernons
the
not
or
nothing
dispute
Tadeo,
did
is
witness
off
on
other
one
or
than
two
occasions.
Astonishingly,
allegation
that
he
Mackey
was
himself
sleeping
did
during
not
trial;
dispute
instead,
the
he
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
are
reluctant
credibility
overturn
determinations;
unbiased
witness
Mackeys
conduct
discredited
to
who
was
district
but,
in
when
the
the
best
goes
unrebutted,
without
good
reason,
courts
there
is
weight
testimony
position
and
Generally,
that
to
of
and
an
observe
testimony
justification
is
for
substantial
portion
of
the
trial. 11
Unconscious
10
27
349.
Id.
Because
courts
have
presumed
prejudice.
Gov.s
Opp.
Br.
17
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.
The
applied
to
defendant
defendants in Javor.
Id.
Javor,
as
there
were
multiple
28
Circuit
nevertheless
held
that
counsel
was
asleep
during
the
State
supporting
questioned
its
case
witnesses
against
and
Burdine.
presented
evidence
262
at
F.3d
339.
two
questioned
and
five
times
witnesses.
Id.
while
the
Another
prosecuting
juror
attorney
testified
that
questioned
lots
Id.
of
witness.
incidents
of
Id.
counsel
The
deputy
sleeping
clerk
during
the
another juror, who testified that they had not noticed counsel
asleep during the trial.
Circuit
held
that
counsel
through
the
not
Id.
repeated
unconsciousness
insubstantial
portions
of
of
Burdines
the
critical
Id. at 349.
29
on
Mackey
deliberations
(and
being
may
asleep,
have
held
including
this
fact
during
against
jury
Ragin
in
There
that
were
no
witnesses
testified
that
Mackey
was
not
egregious.
As the government concedes, [t]here is little doubt that
trial
counsel
sleeping.
cannot
Gov.s
provide
Opp.
Br.
effective
17.
assistance
Indeed.
And,
as
while
Cronic
to
prejudice
the
accused
that
the
cost
of
litigating
466 U.S. at
V.
While
criminal
trial
is
not
game
in
which
the
neither
gladiators.
is
it
sacrifice
of
unarmed
prisoners
to
30
result,
Ragins
trial
was
not
confrontation
As
between
motion,
and
remand
for
further
proceedings
consistent
31