                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 06-3288
DERRYLE S. MCDOWELL,
                                         Petitioner-Appellant,
                              v.

PHILLIP A. KINGSTON, Warden,
                                        Respondent-Appellee.
                        ____________
          Appeal from the United States District Court
              for the Eastern District of Wisconsin.
          No. 05 C 498—William C. Griesbach, Judge.
                        ____________
    ARGUED APRIL 11, 2007—DECIDED AUGUST 15, 2007
                     ____________


  Before CUDAHY, KANNE, and WOOD, Circuit Judges.
  CUDAHY, Circuit Judge. The petitioner, Derryle S.
McDowell, was convicted of sexual assault, kidnapping
and armed robbery and was sentenced to 200 years
in prison. At trial, McDowell’s trial counsel had him testify
in a narrative form rather than lead him through a
question and answer format. In considering McDowell’s
post-conviction motion, the Wisconsin Supreme Court
applied Strickland v. Washington, 466 U.S. 668 (1984), and
determined that McDowell’s trial counsel’s decision to
have McDowell testify in a narrative format without
knowing that he would testify untruthfully and without
notifying McDowell of his decision to do so was deficient,
but still denied relief finding no prejudice. The federal
2                                              No. 06-3288

district court also denied the petition, holding, in part,
that the Wisconsin Supreme Court’s decision to apply
Strickland, instead of presuming prejudice under United
States v. Cronic, 466 U.S. 648 (1984), was not contrary to
clearly established federal law. We agree and affirm the
denial of McDowell’s petition.


                      I. Background
  On April 21, 1997, an 18-year-old woman was sexually
assaulted by two men near a building at 4720 West
Burleigh Street in Milwaukee. After the assault, the victim
spat ejaculate onto the ground. Although the victim could
not identify her attackers, the State based its case
against the defendant Derryle McDowell on evidence
collected from the victim’s body, clothing and the scene.
Namely, the police recovered a sample of the victim’s
saliva mixed with semen containing McDowell’s DNA.
  This appeal primarily concerns McDowell’s testimony
at trial. On the third day of trial, after the State had
rested, McDowell’s counsel, Attorney Ronald Langford,
expressed reservations to the court about his ability to
effectively proceed as counsel and asked to withdraw.
Specifically, he implied that his concerns related to the
possibility that McDowell would testify untruthfully. The
trial court advised Attorney Langford of two options: (1) he
could recommend to McDowell that he not testify if his
intended account was untrue, or (2) take the “middle
ground” by calling McDowell to testify in narrative form.
(R. 74 at 6-7.) Attorney Langford’s request to withdraw
from the case was denied. After a short break, Attorney
Langford informed the court that:
    Judge, I have no reason to believe in light of what
    Mr. McDowell has told me that he will not get up there
    and testify as to the truth. Therefore when he takes
No. 06-3288                                               3

    the stand I will be asking him questions, specific
    questions with respect to his testimony before this
    jury.
(R. 74 at 12.)
  Attorney Langford then gave his opening statement, in
which he told the jury that McDowell would testify that he
never assaulted the victim and that the area where the
crime took place was behind the building where his
father lived. Counsel further explained that McDowell had
been in the area the night before the assault, had oral sex
with his girlfriend and had ejaculated, which would
account for his semen’s being found at the scene.
  After Attorney Langford completed his opening state-
ment, McDowell took the stand. Shortly thereafter, while
McDowell was still on the stand, Attorney Langford
received a note from the public defender’s office which
stated: “Tyroler [an appellate attorney in the Office of
the State Public Defender] says go with narrative. Tell
that to the client. It must be by narrative.” (R. 79 at 78.)
McDowell’s counsel began his examination in the ques-
tion and answer format, asking three questions about
McDowell’s age and residence. He then stated, “Mr.
McDowell, I want you to look at this jury and tell this
jury about the events of April 20 and 21 of 1997. Take
your time and speak loudly and clearly, please.” (R. 74
at 20.)
  The court, apparently confused by this change of plans,
called a sidebar conference, after which the court in-
structed the jury not to consider the opening statements
or closing statements of counsel as evidence and directed
McDowell’s counsel to restate the question. Attorney
Langford said, “Again, Mr. McDowell, take your time and
tell this jury what you would like for them to know
regarding the allegations against you beginning with
where you were and what you were doing on April 20,
4                                                    No. 06-3288

1997, through the early morning hours of April 21, 1997.
Proceed, please.” (R. 74 at 22.) In brief, McDowell testified
that he and his girlfriend, Sunshine, “fooled around” and
had oral sex behind his father’s apartment the evening of
April 20, 1997. His father caught them in the alley and
became angry. He and his father eventually drove Sun-
shine home, returned to the house later that evening
and went to bed. McDowell claims that some key facts
were missing from his account which could have been
solicited in a question and answer format. The jury
ultimately found McDowell guilty of one count of armed
robbery, one count of kidnapping and five counts of first
degree sexual assault with the use of a weapon. He was
sentenced to 200 years in prison and forty years of proba-
tion.
   McDowell filed a post-conviction motion in the circuit
court claiming ineffective assistance of counsel. The cir-
cuit court held a Machner hearing to determine the
validity of McDowell’s claim.1At the hearing, Attorney
Langford testified that he initially believed that McDowell
was lying about this sexual activity with his girlfriend.
He noted inconsistencies between their accounts, the fact
that McDowell introduced this theory of defense only
after learning about the DNA evidence and also recounted
a conversation with McDowell in which McDowell told
him, “I’ll say what I need [to] say to help myself out and
if I have to say something untruthful[,] I’ll say that.” (R. 79
at 109.) In preparation for McDowell’s taking the stand,
Attorney Langford testified that he warned McDowell
that he might need to testify in a narrative form and, if he


1
   Under State v. Machner, 285 N.W.2d 905 (Wis. Ct. App. 1979),
a hearing may be held when a criminal defendant’s trial counsel
is challenged for allegedly providing ineffective assistance. At
the hearing, the trial counsel testifies to his or her reasoning on
the challenged action or inaction. Id. at 908-09.
No. 06-3288                                                 5

did, that McDowell should testify to everything he would
want the jury to know because it would be his only oppor-
tunity. Attorney Langford also testified that he had
intended to lead McDowell through questions, but that
his plan later changed when he received the note from
the public defender’s office. Attorney Langford conceded
that he did so without advising McDowell of the change
and without having personally concluded that McDowell
intended to lie.
   The circuit court denied McDowell’s petition, finding that
McDowell’s counsel had reacted in a way that best pre-
served his client’s rights and discharged his own ethical
responsibilities, and that the outcome of the trial would
not have been different in light of the DNA evidence if
McDowell had testified instead in a question and answer
format. See State v. McDowell, 669 N.W.2d 204, 217 (Wis.
Ct. App. 2003). The Wisconsin Court of Appeals affirmed
the circuit court’s denial of McDowell’s petition; however,
the court of appeals, unlike the circuit court, found
Attorney Langford’s performance to be deficient because
he did not know that McDowell would testify untruthfully
when he switched to a form of narrative testimony and
failed to inform McDowell of the change of plans. Id. at
227. Regardless, the court of appeals, like the circuit court,
did not find McDowell to have been prejudiced by this
error. Id. at 229-30. The Wisconsin Supreme Court af-
firmed the denial of McDowell’s petition on the same
ground as that of the court of appeals. State v. McDowell,
681 N.W.2d 500, 505 (Wis. 2004).
  McDowell then filed a petition for writ of habeas corpus
in the Eastern District of Wisconsin. The district court
denied the petition finding that the Wisconsin Supreme
Court’s determination that McDowell was not prejudiced
by his trial counsel’s performance was not contrary to, nor
an unreasonable application of, clearly established fed-
eral law as determined by the Supreme Court of the
6                                              No. 06-3288

United States. McDowell v. Kingston, No. 05-C-0498, 2006
WL 2289304, at *1 (E.D. Wis. Aug. 8, 2006). The district
court certified the following question for our review:
    Were the state court decisions rejecting petitioner’s
    Sixth Amendment ineffective assistance of counsel
    claim contrary to clearly established federal law with-
    in the meaning of 28 U.S.C. § 2254(d)?
(R. 28 at 2.) In other words, we consider in the present
case whether the Wisconsin Supreme Court’s decision to
apply Strickland, which requires a showing of prejudice,
instead of Cronic, where prejudice is presumed, was
contrary to clearly established federal law.


                      II. Discussion
  The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) governs our review of McDowell’s peti-
tion for writ of habeas corpus. Relevant for this review, a
federal court can grant relief only if the state court’s
decision: (1) was “contrary to . . . clearly established
Federal law, as determined by the Supreme Court of the
United States”; or (2) “involved an unreasonable applica-
tion of . . . clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). A state court’s decision is “contrary to”
clearly established federal law if the state court either
“applies a rule that contradicts the governing law” set
forth by the Supreme Court or decides a case differently
than the Supreme Court has on materially indistinguish-
able facts. Williams v. Taylor, 529 U.S. 362, 405 (2000).
When the claim falls under the “contrary to” clause, the
federal court will review the state court decision independ-
ently to determine what the clearly established federal
law is and whether the state court decision is contrary
to that precedent. Id. at 378-79.
No. 06-3288                                                  7

  On appeal, McDowell argues that the Wisconsin Su-
preme Court erroneously applied Strickland and instead
should have presumed prejudice under Cronic. He raises
two grounds in support of this contention. First, the
petitioner claims Attorney Langford’s failure to lead him
through question and answers during his testimony
constituted a denial of counsel at a critical stage of the
trial or, alternatively, that Attorney Langford’s failure
constituted an abandonment of McDowell’s defense.
Second, McDowell argues that Attorney Langford suffered
a conflict of interest between his duty of loyalty to his
client and his duty to comply with the directions in the
note from the public defender’s office.
  Generally, claims of ineffective assistance of counsel are
evaluated under a two-prong analysis announced in
Strickland. Under Strickland, a claimant must prove
(1) that his attorney’s performance fell below an objective
standard of reasonableness and (2) that the attorney’s
deficient performance prejudiced the defendant such that
“there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding
would have been different.” 466 U.S. 668, 690, 694.
   Decided the same day as Strickland, the Court in
Cronic held that in “circumstances that are so likely to
prejudice the accused that the cost of litigating their
effect in a particular case is unjustified,” prejudice will
be presumed. 466 U.S. 648, 658. The Court defined
three exceptions to Strickland where it is appropriate for
a court to presume prejudice: (1) where there is a “com-
plete denial of counsel” or denial at a “critical stage” of the
litigation; (2) where counsel “entirely fails to subject the
prosecution’s case to meaningful adversarial testing”; and
(3) where “although counsel is available to assist the
accused during trial, the likelihood that any lawyer, even
a fully competent one, could provide effective assistance
is [very] small.” 466 U.S. at 659-60; see also Miller v.
8                                                   No. 06-3288

Martin, 481 F.3d 468, 472 (7th Cir. 2007). The Court has
subsequently recognized Cronic as a “narrow exception” to
Strickland. Florida v. Nixon, 543 U.S. 175, 190 (2004).


A. Denial of Counsel at a Critical Stage
  The petitioner’s first argument—that we should presume
prejudice because he was actually or constructively denied
counsel at a critical stage of the litigation—fails to satisfy
the requirements of Cronic’s first category. The Supreme
Court has consistently limited the presumption of preju-
dice to cases where counsel is physically absent at a
critical stage.2 See Penson v. Ohio, 488 U.S. 75, 88 (1988)
(applying Cronic where defense counsel erroneously
moved to dismiss any appeal leaving the petitioner
“completely without representation during the appeals
court’s actual decisional process”); White v. Maryland, 373
U.S. 59, 60 (1963) (presuming prejudice where defendant
pleaded guilty at a preliminary hearing before he was
appointed counsel); Hamilton v. Alabama, 368 U.S. 52, 54-
55 (1961) (presuming prejudice where defendant was
completely without counsel when he pleaded guilty to a
capital charge and irrevocably waived other pleas); see also
Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir. 1985)


2
   There are some cases, typically involving sleeping or uncon-
scious lawyers, where courts have presumed prejudice even
though counsel was technically physically present. See Burdine
v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001); Tippins v. Walker,
77 F.3d 682, 686 (2d Cir. 1996); Javor v. United States, 724 F.2d
831, 833 (9th Cir. 1984). But, the alleged “absence” of Attorney
Langford is distinguishable from these cases. Arguments
concerning constructive denial of counsel are best considered
under Cronic’s second category—where counsel has “entirely
failed to subject the prosecution’s case to meaningful adversarial
testing.”
No. 06-3288                                                  9

(applying a presumption of prejudice where the defen-
dant’s trial counsel was absent during jury deliberations
and at the return of the verdicts). Here, counsel was
physically present at all stages of the litigation, including
during McDowell’s testimony, and therefore, we cannot
hold that McDowell was actually denied counsel.
  Moreover, McDowell has failed to present any authority
from the United States Supreme Court indicating that
his testimony, isolated from the rest of his defense,
constitutes a critical stage of the litigation. Cf. Penson, 488
U.S. at 88 (holding that an appeal constitutes a critical
stage); White, 373 U.S. at 60 (holding that a “preliminary
hearing” where the defendant was allowed to enter a plea
constitutes a critical stage); Hamilton, 368 U.S. at 54
(holding that an arraignment was a critical stage of the
proceedings because available defenses may be irretriev-
ably lost).
   The petitioner relies heavily on our decision in Van
Patten v. Deppisch, 434 F.3d 1038 (7th Cir. 2006) for
support of his argument that prejudice should be pre-
sumed because McDowell was denied counsel at a critical
stage in the proceeding.3 In Van Patten, we held that the
Wisconsin appellate court acted contrary to clearly estab-
lished Supreme Court precedent in applying Strickland
instead of Cronic where petitioner’s counsel participated
via a conference call at the plea hearing. Id. at 1043.
McDowell compares Van Patten to his circumstances here
in urging that, by switching to a narrative format, Attor-


3
   The Supreme Court vacated our judgment in Van Patten and
remanded for reconsideration in light of Carey v. Musladin, 127
S.Ct. 649 (2006). Schmidt v. Van Patten, 127 S.Ct. 1120 (2007).
After reconsideration, we recently reinstated the judgment. Van
Patten v. Endicott, No. 04-1276, 2007 WL 1654396 (7th Cir. June
5, 2007).
10                                               No. 06-3288

ney Langford became “absent” in a way similar to the trial
counsel in Van Patten. But, this analogy fails. In Van
Patten, we placed tremendous emphasis on the fact that
counsel was physically absent from the proceedings. We
explained:
     He could not turn to his lawyer for private legal
     advice, to clear up misunderstandings, to seek reassur-
     ance, or to discuss any last minute misgivings. Listen-
     ing over an audio connection, counsel could not detect
     and respond to cues from his client’s demeanor that
     might have indicated he did not understand certain
     aspects of the proceeding, or that he was changing
     his mind.
Id. Here, McDowell’s counsel was physically present at all
stages of the litigation. He informed McDowell of the
possibility of narrative testimony before he took the stand
and instructed him to tell the jury everything he would
want them to know. Moreover, whereas there is sub-
stantial precedent indicating that a plea hearing is a
“critical stage” of the litigation (see, e.g., White, 373 U.S.
at 60), as already discussed, McDowell has failed to
point to any authority from the Supreme Court indicating
that the defendant’s testimony itself constitutes a critical
stage.4
  Thus, the petitioner has failed to demonstrate that he
was denied counsel at a critical stage of the proceedings
and, therefore, his claim fails to fit within the first Cronic
category.


4
   Van Patten can further be distinguished from the present
case. The court in Van Patten also indicated that allowing
counsel to appear via phone was an error involving a small
likelihood of ability to provide effective assistance (of the
sort covered by the third Cronic category), while here the
petitioner does not claim a similar structural error. 434 F.3d
at 1043.
No. 06-3288                                              11

B. Failure to Subject Prosecution’s Case to Mean-
   ingful Adversarial Testing
  We also cannot presume prejudice under the second
Cronic category—where counsel “entirely fails to subject
the prosecution’s case to meaningful adversarial test-
ing”—because Attorney Langford’s deficient representation
was not a complete failure. In Bell v. Cone, 535 U.S. 685,
697-98 (2002), the Court clarified what constitutes an
“entire failure” by drawing a clear distinction between a
failure to oppose the prosecution throughout an entire
proceeding and a failure to do so at specific points, con-
cluding that a failure at specific points will not trigger a
presumption of prejudice. Id.; see also United States v.
Morrison, 946 F.2d 484, 500 n.3 (7th Cir. 1991).
  McDowell claims that by switching to a narrative form,
Attorney Langford effectively abandoned his defense,
rendering him “constructively absent” from the proceed-
ings. The type of failure McDowell asserts is more properly
characterized as a failure at a specific point in the litiga-
tion rather than a complete failure of the type necessary to
trigger a presumption of prejudice under the second
category. The record indicates that Attorney Langford did
subject the prosecution’s case to adversarial testing. He
cross-examined witnesses. He gave an opening state-
ment in which he presented McDowell’s defense. Addi-
tionally, Attorney Langford testified that he warned
McDowell prior to his taking the stand that he might
have to testify in narrative form and advised him as to
what that testimony should entail. “I made it clear to him
that once you start talking, make sure you say everything
you want to say. You are going to get [only] one kick at
the cat.” (R. 79 at 116.) Attorney Langford also guided
McDowell into his narrative testimony by instructing him
to “look at this jury and tell this jury about the events of
April 20 and April 21 of 1997. Take your time and speak
loudly and clearly, please.” (R. 74 at 20.) Attorney Lang-
12                                             No. 06-3288

ford also gave a closing statement, in which he questioned
the State’s DNA evidence and reaffirmed McDowell’s
defense. To be clear, we do not question the Wisconsin
Supreme Court’s determination that Attorney Langford’s
decision to have McDowell testify in a narrative form
was deficient representation since Attorney Langford did
not know McDowell would testify untruthfully and did not
inform McDowell of the switch in plans. Nonetheless,
an isolated mistake, like the one found here, does not
constitute a “complete failure to subject the prosecu-
tion’s case to adversarial testing,” nor does it render an
attorney “constructively absent” from the proceedings. Cf.
Van Patten, 434 F.3d at 1044 (applying Cronic, but noting
that the defendant “does not allege, for example, that his
attorney botched his defense through bad legal judgments,
or misinformed him of the ramifications of his plea”).
  Patrasso v. Nelson, 121 F.3d. 297 (7th Cir. 1997) further
supports this result. In Patrasso, in which the defendant’s
counsel gave no opening argument, asked the defendant
only one question during his testimony, conducted “perfunc-
tory” cross-examination of witnesses and, in response to
the court’s urging, gave only a two-sentence closing
statement, we declined to presume prejudice under the
second Cronic category. Id. at 299. We concluded that
“Patrasso had an attorney and the attorney did take some
action on his behalf.” Id. at 302. Attorney Langford’s
performance in the present case clearly surpasses in
quality that of the trial counsel’s in Patrasso. Since we
did not apply Cronic in that case, we certainly cannot in
the present one.
  Because Langford’s failure was only at a specific point in
the litigation and was not a wholesale failure, McDowell’s
claim fails under the second Cronic category. We will not
evaluate his claim under the third category, which con-
cerns circumstances in which no attorney could provide
effective assistance of counsel, because McDowell does
not assert any such structural errors in his petition.
No. 06-3288                                                 13

C. Conflict of Interest
  McDowell also argues that the Wisconsin Supreme Court
should have presumed prejudice because Attorney Lang-
ford suffered a conflict of interest between his “duty of
loyalty to his client and the duty of adhering to the
pressures of that established by the note that was passed
to trial counsel at a critical stage of the jury trial.” (Peti-
tioner’s Reply Br. at 6.)
  In Cuyler v. Sullivan, 446 U.S. 335, 338 (1980), the
defendant alleged ineffective assistance resulting from a
“conflict of interest” because his lawyers also represented
his co-defendants. The Court held that a presumption of
prejudice is appropriate “where an attorney has labored
on behalf of a defendant while harboring a conflict of
interest.” Id. at 349-50. A “conflict of interest” is defined as
a conflict between a duty of loyalty to a client and a private
interest or a conflict between a duty of loyalty owed to one
client and the duty owed to another in a multiple represen-
tation situation as in Cuyler. See Black’s Law Dictionary
295 (7th ed. 1999). But, the conflict alleged in the present
case is not the kind of conflict at issue in Cuyler. Rather,
the alleged conflict Attorney Langford experienced between
his duty of loyalty to McDowell and his “duty of adhering
to the pressures of that established by the note” is better
described as a problem of determining the appropriate
ethical course. In Nix v. Whiteside, 475 U.S. 157, 176
(1986), which McDowell also cites but fails to cite in full,
the Court specifically noted that a presumption of preju-
dice is not appropriate for conflicts like the one alleged in
the present case, explaining that the “ ‘conflict’ . . . imposed
on the attorney by the client’s proposal to commit the
crime of fabricating testimony . . . is not remotely the kind
of conflict of interests dealt with in Cuyler v. Sullivan.”
The Wisconsin Supreme Court correctly noted, “[t]o equate
these divided loyalties in [Cuyler] with the potential
divided loyalties here misses the mark.” State v. McDowell,
14                                             No. 06-3288

681 N.W.2d at 516. Attorney Langford may have experi-
enced a conflict, but not a conflict of interest warranting
a presumption of prejudice pursuant to Cuyler.
   In conclusion, we hold that the Wisconsin Supreme
Court’s determination to apply Strickland, instead of
presuming prejudice under Cronic, was not contrary to
clearly established federal law. McDowell was not denied
counsel at a critical stage of the litigation since Attorney
Langford was present throughout the proceedings. Attor-
ney Langford did subject the prosecution’s case to “mean-
ingful adversarial testing” and therefore his failure
was not a “complete failure.” Finally, Attorney Langford’s
alleged conflict between his duty of loyalty to McDowell
and his “duty of adhering to the pressures of that estab-
lished by the note” is not the type of conflict which war-
rants a presumption of prejudice under Cuyler.


                     III. Conclusion
  For the foregoing reasons, we AFFIRM the district court’s
denial of McDowell’s petition for writ of habeas corpus.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                   USCA-02-C-0072—8-15-07
