262 F.3d 336 (5th Cir. 2001), 99-21034, Burdine v Johnson

Docket Nº:99-21034
Citation:262 F.3d 336
Case Date:August 13, 2001
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 336

262 F.3d 336 (5th Cir. 2001)

CALVIN JEROLD BURDINE, Petitioner-Appellee,




No. 99-21034

United States Court of Appeals, Fifth Circuit

August 13, 2001

Revised August 29, 2001

Page 337

[Copyrighted Material Omitted]

Page 338

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


BENAVIDES, Circuit Judge:

In this case we consider whether the district court properly granted a Petition for Writ of Habeas Corpus filed by Calvin Jerold Burdine based on state habeas court findings that Burdine's court-appointed attorney slept repeatedly throughout the guilt-innocence phase of his 1984 capital murder trial. The district court concluded "sleeping counsel is equivalent to no counsel at all" and granted relief pursuant to 28 U.S.C. § 2254. A divided panel of this Court reversed, holding that (1) the district court's presumption of prejudice for purposes of ineffective assistance constituted a new rule of law from which Burdine could not benefit under Teague's nonretroactivity doctrine, and (2) the circumstances of Burdine's representation did not require a presumption of prejudice to ensure the fairness of Burdine's capital murder trial. See Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).

As an en banc court, we AFFIRM the judgment of the district court.1 The Supreme Court has long recognized that "a trial is unfair if the accused is denied counsel at a critical stage of his trial." United States v. Cronic, 466 U.S. 648, 659 (1984). When a state court finds on the basis of credible evidence that defense counsel repeatedly slept as evidence was being introduced against a defendant, that defendant has been denied counsel at a critical stage of his trial. In such circumstances, the Supreme Court's Sixth Amendment jurisprudence compels the presumption that counsel's unconsciousness prejudiced the defendant.


In January 1984, after a trial that included 12 hours and 51 minutes of total time before the jury over a period of six days, a Harris County, Texas jury convicted petitioner Burdine of capital murder in connection with the death of W.T. "Dub"

Page 339

Wise. Wise was killed in April 1983 during the course of a robbery committed by Douglas McCreight and Burdine. After the jury affirmatively answered the two special issues, the state trial court assessed punishment as death by legal injection in accordance with Texas law. See Tex. Penal Code Ann. § 19.03(a)(2). The Texas Court of Criminal Appeals affirmed Burdine's conviction and sentence on direct appeal. See Burdine v. Texas, 719 S.W.2d 309 (Tex. Crim. App. 1986). Throughout his trial and direct appeal, Burdine's court-appointed counsel was Joe F. Cannon of Houston.

Burdine's initial state application for a writ of habeas corpus was denied on June 29, 1994. Burdine filed a second application in December 1994. In relation to that application, the state habeas court conducted an evidentiary hearing during which Burdine called eight witnesses, including three jurors from the capital murder trial and the clerk of the court in which the trial was held. These four neutral witnesses, which the state habeas court found highly credible, testified that Cannon repeatedly dozed or slept as the State questioned witnesses and presented evidence supporting its case against Burdine.

Daniel Strickland, the foreman of the jury, recalled seeing Cannon doze or nod off between two and five times while the prosecuting attorney questioned witnesses. Myra Davis remembered being struck by the spectacle of Cannon's sleeping on the second day of trial, the same day that trial judge Joseph Guarino had chastised her for tardiness. According to Davis, Cannon "would nod his head down on his chest" with his eyes closed during the questioning of witnesses. "I was thinking to myself, you know look at him and [Judge Guarino] calls me out [for tardiness] in front of all these people, . . . and look at what that man is doing." Like Davis, Craig Engelhardt related that Cannon "would nod his head down, bob it, with eyes closed during all this." Engelhardt recalled Cannon sleeping as many as ten times during the trial, at one point for "a good probably at least 10 minutes" as the prosecution questioned a witness.

The testimony of Rose Berry, the deputy clerk assigned to the trial court that conducted Burdine's trial, confirmed the jurors' recollections. Berry recalled "lots of incidents" of Cannon sleeping during the trial. Though Berry could not specify a proportion of the trial in which Cannon slept, she did "know that he fell asleep and that he was asleep for long periods of time during the questioning of witnesses." According to the state habeas court, Berry was "the most compelling witness" in the proceeding not only because of her neutrality, but also because she was not required to pay attention to witnesses or the prosecutor and thus had a better opportunity to observe Cannon's conduct.

Other witnesses at the hearing, including Judge Joseph Guarino, prosecutor Ned Morris, and Carolyn Bonnin, a juror, testified that they had not noticed Cannon asleep during the trial. The prosecutor's testimony was challenged by James Pillow, the court coordinator of the trial court at the time of Burdine's trial. Pillow recalled having a conversation with the prosecutor, in which the prosecutor questioned Cannon's competency to represent capital defendants and suggested that Cannon not be appointed counsel in future capital cases. Neither the prosecutor nor Judge Guarino recalled ever discussing this issue, but Pillow noted that Cannon was not appointed by Judge Guarino to represent capital defendants after Burdine's trial. Cannon himself testified he had a "habit" of closing his eyes and tilting his head forward while concentrating, but that he

Page 340

never slept during Burdine's trial. The state habeas court pointed out the inconsistency between Cannon's testimony and the descriptions of the four neutral witnesses that saw Cannon's head bobbing. Moreover, Cannon's testimony as to his concentration habit was impeached by Philip Scardino, an attorney who worked with Cannon on a different capital case. While Scardino did not recall Cannon concentrating with his eyes closed, he did observe Cannon dozing during the voir dire of witnesses.

On April 3, 1995, the state habeas court entered comprehensive findings of fact and conclusions of law. After detailing the evidence presented during the evidentiary hearing, the court entered "a finding that defense counsel dozed and actually fell asleep during portions of [Burdine's] trial on the merits, in particular the guilt-innocence phase when the State's solo prosecutor, was questioning witnesses and presenting evidence." Based on evidence that "defense counsel repeatedly dozed and/or actually slept during substantial portions of [Burdine's] capital murder trial so that defense counsel was, in effect, absent[,]" the habeas court concluded that a showing of prejudice in accordance with Strickland v. Washington, 466 U.S. 668, 104 S.Ct 2052 (1984),was not required.2 Accordingly, the court recommended that habeas relief be granted on Burdine's claim of ineffective assistance of counsel. In a one-page, unsigned opinion, the Texas Court of Criminal Appeals agreed that "the trial court's findings of fact [regarding the sleeping of trial counsel] are supported by the record." The court nevertheless concluded that Burdine was not entitled to relief because "he failed to discharge his burden of proof under Strickland v. Washington, 446 [sic; 466] U.S. 669 (1984)." Ex Parte Burdine, Writ No. 16,725-06 (Tex. Crim. App. April 6, 1995).

Burdine then filed an application for a writ of habeas corpus in the federal district court for the Southern District of Texas pursuant to 28 U.S.C. § 2254. That court determined, on the basis of the factual findings made by the state habeas court and accepted by the Court of Criminal Appeals, that Cannon's unconsciousness during Burdine's capital murder trial amounted to constructive denial of counsel for substantial periods of that trial. See Burdine v. Johnson, 66 F.Supp.2d 854, 866 (S.D. Tex. 1999). Consequently, the district court determined that prejudice should be presumed in accordance with the Supreme Court's analysis inStrickland and United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984). See id. The State now appeals from this determination.


This federal habeas proceeding turns on the effect of state court findings that counsel repeatedly slept "during portions of [Burdine's] trial on the merits, in particular during the guilt-innocence phase when the State's solo prosecutor was questioning witnesses and presenting evidence." Although the Texas Court of Criminal Appeals rejected Burdine's habeas application, it found that the record supported the habeas court's findings of fact. In this appeal, the State concedes that we are bound by the habeas court's findings of fact. Specifically, the State "does not dispute that [counsel] dozed and actually fell asleep intermittently during Burdine's capital murder trial." The State maintains that habeas relief is nevertheless inappropriate

Page 341

for two reasons: (1) the district court's presumption of prejudice on the facts of this case amounts to a "new rule" that Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989), bars Burdine from raising in this collateral proceeding, and (2) the facts of Burdine's case do not warrant a presumption of prejudice because Burdine's counsel slept during indeterminate periods of what otherwise amounted to an adversarial trial.

The State's arguments fail to address the...

To continue reading