231 F.3d 950 (5th Cir. 2000), 99-21034, Burdine v Johnson

Docket Nº:99-21034
Citation:231 F.3d 950
Case Date:October 27, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 950

231 F.3d 950 (5th Cir. 2000)

CALVIN JEROLD BURDINE, Petitioner-Appellee,



No. 99-21034

United States Court of Appeals, Fifth Circuit

October 27, 2000

Page 951

Appeal from the United States District Court for the Southern District of Texas

Before JONES, BARKSDALE, and BENAVIDES, Circuit Judges.


The linchpin to this appeal is whether, under the Sixth Amendment, prejudice must be presumed when appointed defense counsel sleeps during unidentified portions of a capital murder trial. The State contests the district court's application of that presumption in granting habeas relief to Calvin Jerold Burdine, convicted for capital murder and sentenced to death in Texas. We VACATE and REMAND.

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Burdine's January 1984 conviction and sentence were for the 1983 robbery and murder of Wise. Burdine was represented at trial -- and, at his request, on direct appeal -- by court-appointed counsel, Joe Cannon. The trial evidence included a police officer's testimony that Burdine, while in custody in California following his arrest ten days after the murder, confessed that, after unsuccessfully trying to smother and then beat Wise to death, McCreight, Burdine's 17-year-old companion, stabbed Wise, and then Burdine did so.

Cannon's theory of defense was: Burdine did not intend to kill Wise; McCreight was the instigator of the robbery and murder. Cannon sought to portray Burdine, who, at the time of the murder, had not completely recovered from surgery in which a lung had been removed, as too weak to have participated in the murder and as a victim of Wise, an older man who took advantage of him. (Burdine and Wise had had a homosexual relationship.)

Burdine testified at the guilt-innocence phase of trial, admitting his participation in the robbery, but denying he stabbed Wise. At the punishment phase, outside the presence of the jury and against Cannon's advice, Burdine declined to testify. Immediately thereafter, in the presence of the jury, Cannon asked Burdine if he wished "to take the stand and plead for [his] life". Before being interrupted by the trial judge, Burdine responded to Cannon: "No, sir, they didn't listen to me the first time, I don't see --".

On direct appeal, the Texas Court of Criminal Appeals affirmed the conviction and sentence. Burdine v. State, 719 S.W.2d 309 (Tex. Crim. App. 1986). The Supreme Court denied certiorari in March 1987. Burdine v. Texas, 480 U.S. 940 (1987).

Represented by new counsel, Burdine filed his first state habeas application in July 1987, asserting, inter alia, numerous bases for ineffective assistance of counsel. A supplemental application was filed in March 1988. That September, the state trial court conducted a three-day evidentiary hearing. Six years later, in June 1994, the trial court recommended relief being denied. Ex parte Burdine, Cause No. 37944-A (183rd Dist. Ct. Harris County, Texas, 29 June 1994). Accepting that recommendation, the Texas Court of Criminal Appeals denied relief that December. Ex parte Burdine, Writ No. 16,725-02 (Tex. Crim. App. 12 Dec. 1994).

Burdine filed a second state habeas application later that month, nearly 11 years after trial, claiming for the first time denial of assistance of counsel because Cannon repeatedly dozed and/or slept at trial. The state trial court conducted an evidentiary hearing in February 1995. That April, it recommended relief being granted, finding that Cannon slept during portions of the trial, and concluding that such conduct was presumptively prejudicial. Ex parte Burdine, Cause No. 37944-B (183rd Dist. Ct. Harris County, Texas, 3 April 1995). But, the Texas Court of Criminal Appeals denied relief, holding that, although the trial court's findings of fact were supported by the record, Burdine was not entitled to relief because he had not demonstrated prejudice. Ex parte Burdine, 901 S.W.2d 456 (Tex. Crim. App.), cert. denied, 515 U.S. 1107 (1995).

Later that same month, April 1995, Burdine sought federal habeas relief, presenting ten claims. They included numerous alleged instances of ineffective assistance of counsel, as well as the claim that prejudice should be presumed because Cannon slept during substantial portions of a critical stage of trial. In September 1999, the district court granted relief on the prejudice presumed for sleeping during trial claim, without addressing the remaining claims. Burdine v. Johnson, 66 F.Supp.2d 854 (S.D. Tex. 1999).

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For the two-prong test for ineffective assistance of counsel vel non (deficient performance and resulting prejudice), the State concedes the correctness of the state habeas court's factual finding that Cannon slept during trial, thereby rendering deficient performance. But, it challenges presuming prejudice, because, under the circumstances of this case, that constitutes a "new rule", not available to Burdine on collateral review. Alternatively, it maintains that the presumption is inapplicable in a case such as this, involving deficient performance within an otherwise adversarial trial. It contends also that the district court erred by failing to apply harmless error analysis. (The State's contention that the judgment is erroneous if interpreted to bar retrial is moot; the order has not been so interpreted.)

"In considering a claim for federal habeas relief, we review the district court's factual findings for clear error and its legal conclusions de novo." Childress v. Johnson, 103 F.3d 1221, 1224 (5th Cir. 1997). Because Burdine filed his federal application prior to enactment of the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA), its standards for reviewing the state court's decision are not applicable. E.g., Perillo v. Johnson, 205 F.3d 775, 793 (5th Cir. 2000). "When applying the pre-AEDPA standard to ineffective assistance of counsel claims, this Court has held that whether counsel was deficient, and whether the deficiency, if any, prejudiced the petitioner ... are legal conclusions which both the district court and this Court review de novo." Moore v. Johnson, 194 F.3d 586, 603-04 (5th Cir. 1999).

On the other hand, "[t]he state court's subsidiary findings of specific historical facts and state court credibility determinations are ... entitled to a presumption of correctness under [pre-AEDPA] § 2254(d)". Id. at 604. Therefore, as the State concedes, we are bound by the state habeas court's finding that Cannon slept during trial, even though he testified at the state habeas evidentiary hearing that he had not slept; that, instead, he often kept his eyes closed and might nod his head while thinking or concentrating, and that it was possible for someone observing him to think he was sleeping.

Whether the nonretroactivity principle of Teague v. Lane, 489 U.S. 288 (1989), precludes Burdine from benefitting from the claimed prejudice-presumption is a question of law reviewed de novo. See United States v. Shunk, 113 F.3d 31, 34 (5th Cir. 1997) (§ 2255).


According to Burdine, Cannon's repeated sleeping, for significant periods of time, constituted a constructive denial of assistance of counsel at a critical stage of the proceedings, requiring presuming prejudice. The State contends that Burdine seeks the benefit of a new rule, not in effect when his conviction became final, which, under Teague and its progeny, is not available to him retroactively.

Teague's retroactivity principle "prevents a federal court from granting habeas relief to a state prisoner based on a rule announced after his conviction and sentence became final", unless certain narrow exceptions apply. Caspari v. Bohlen, 510 U.S. 383, 389 (1994) (emphasis in original). "In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps." Id. at 390.

First, we must determine when [Burdine's] conviction and sentence became final for Teague purposes.... Second, we must "survey the legal landscape as it then existed and determine whether a state court considering the defendant's claim at the time his conviction became final would have felt compelled by existing

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precedent to conclude that the rule he seeks was required by the Constitution." ... Third, if we determine that [Burdine] seeks the benefit of a new rule, we must consider whether "that rule falls within ... the ... narrow exceptions to the nonretroactivity principle."

Fisher v. Texas, 169 F.3d 295, 305 (5th Cir. 1999) (quoting Caspari, 510 U.S. at 390).


Burdine's conviction became final in 1987, when the Supreme Court denied certiorari. With respect to the second Teague step, "[u]nless reasonable jurists hearing [Burdine's] claim at the time his conviction became final would have felt compelled by existing precedent to rule in his favor, we are barred from doing so now". Fisher, 169 F.3d at 305 (internal quotation marks and citation omitted).

In 1932, the Supreme Court held that a capital defendant has a constitutional right to "the guiding hand of counsel at every step in the proceedings against him". Powell v. Alabama, 287 U.S. 45, 69 (1932). In this regard, the Court held subsequently that showing prejudice was not necessary when the defendant was denied counsel at arraignment, a critical stage of the proceedings, because certain defenses were lost if not then pled. Hamilton v. Alabama, 368 U.S. 52, 53-55 (1961). Similarly, a defendant was denied assistance of counsel when the trial judge, pursuant to state statute, denied defense counsel the opportunity to be heard in summation at a bench trial, despite the fact there was no way to know whether argument might have affected the outcome of trial. Herring v. New York, 422 U.S. 853, 864-65 (1975). And, shortly thereafter, the Court reversed a decision...

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