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Habeas – Ineffective Assistance – Sleeping Counsel

Joseph Muniz v. Smith, 6th Cir. No. 09-2324, 7/29/11

sixth circuit court of appeal decision

Habeas – Ineffective Assistance – Sleeping Counsel 

The fact that counsel has slept through a portion of trial does not, alone, amount to denial of counsel so as to require relief under United States v. Cronic, 466 U.S. 648 (1984), rather than inquiry into the prejudice component of  Strickland v. Washington, 466 U.S. 668 (1984):

The Ninth, Fifth, and Second Circuits have all considered the question of when sleeping by trial counsel becomes the effective denial of counsel and “so likely . . . prejudice[s] the accused” that Cronic applies and prejudice is presumed. All of these circuits have held that the denial of counsel with presumed prejudice only occurs once counsel sleeps through a “substantial portion of [defendant’s] trial.” Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984)see also Burdine v. Johnson, 262 F.3d 336, 340-41 (5th Cir. 2001) (en banc) (concluding a defendant’s right to counsel was violated where defense counsel was “repeatedly unconscious through not insubstantial portions of the defendant’s capital murder trial”); Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996) (holding the defendant’s right to counsel was violated where defense counsel was asleep for “numerous extended periods of time”).

However, Muniz cannot establish that his trial counsel was asleep for a substantial portion of his trial. The only evidence he offers to show that his counsel was asleep for any period of time … alleges only that Muniz’s attorney was asleep for an undetermined portion of a single cross-examination. … Muniz’s lawyer therefore must have only been asleep for a brief period. This is in contrast to Tippins, in which the trial judge himself “testified that [defense counsel] `slept every day of the trial.'” 77 F.3d at 687. The state court’s application of Strickland to Muniz’s ineffective assistance of counsel claim was not contrary to clearly established federal law.

The court proceeds to a Strickland analysis. Deficient performance isn’t problematic: “… by putting forward the affidavit of a juror who witnessed Muniz’s attorney sleeping Muniz has made a sufficient showing that the standard of conduct by his attorney fell below the objective standard of reasonableness. There is no suggestion in the government’s brief, nor could there be, that Muniz’s attorney fell asleep at trial because in his ‘reasonable professional judgment’ it was the best course of action.” Prejudice is another matter: although he posits the introduction on cross-examination of a couple of harmful details, “he fails to show that there is a reasonable probability his counsel could have prevented either of these prejudicial events from occurring had he been awake—much less that it would have affected the outcome of the trial. Rather, both of these pieces of evidence became admissible because of misguided responses by Muniz himself, not improper questions.” Moreover, “(t)he trial evidence against Muniz was overwhelming.”

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