                                                        [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT                     FILED
                     ________________________          U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                                                           December 30, 2008
                            No. 08-11543                  THOMAS K. KAHN
                        Non-Argument Calendar                 CLERK
                      ________________________

                         D. C. Docket Nos.
              07-00561-CV-T-24-TBM & 03-00162-CR-T-2

CHADDRICK LEVELL THOMAS,



                                                         Petitioner-Appellant,

                                 versus

UNITED STATES OF AMERICA,

                                                       Respondent-Appellee.

                      ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                    _________________________

                          (December 30, 2008)


Before ANDERSON, BLACK and MARCUS, Circuit Judges.


PER CURIAM:
      Chaddrick Thomas, a federal prisoner who was convicted in 2003 on two

counts of armed bank robbery, in violation of 18 U.S.C. § 2113(a) and (d), two

counts of brandishing a firearm during a crime of violence, in violation of 18

U.S.C. § 924(c), and one count of conspiracy to possess, brandish, and discharge a

firearm during a crime of violence, in violation of 18 U.S.C. § 924(o), appeals the

district court’s denial of his 28 U.S.C. § 2255 motion. The district court granted a

certificate of appealability as to whether Thomas’s “sleeping counsel” claim

constituted ineffective assistance of counsel.

      On appeal, Thomas argues the district court erred by requiring Thomas to

prove he was prejudiced by trial counsel’s sleeping. Alternatively, Thomas argues

he established prejudice because the jurors’ observations of counsel adversely

affected the verdict. Thomas further contends the district court erred by not

conducting an evidentiary hearing. We address each issue in turn, and affirm the

district court’s denial of Thomas’s § 2255 motion.

                                          I.

       With regard to a district court’s denial of a 28 U.S.C. § 2255 motion to

vacate, we review legal conclusions de novo and findings of fact for clear error.

Lynn v. United States, 365 F.3d 1225, 1232 (11th Cir. 2004). An ineffective




                                           2
assistance of counsel claim is a mixed question of law and fact, subject to de novo

review. Gordon v. United States, 518 F.3d 1291, 1296 (11th Cir. 2008).

      “[T]he right to counsel is the right to the effective assistance of counsel.”

Strickland v. Washington, 104 S. Ct. 2052, 2063 (1984) (citation omitted). The

benchmark for judging a claim of ineffective assistance of counsel is whether

counsel’s performance “so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having produced a just result.” Id. at

2064. To make such a showing, a prisoner must prove (1) counsel’s performance

was deficient and (2) the deficient performance prejudiced the defense. Id. The

reviewing court need not address both components of the inquiry, however, if the

prisoner makes an insufficient showing on one. Id. at 2069.

      Regarding the deficient-performance component, the Supreme Court has

explained the proper measure of attorney performance is reasonableness under

prevailing professional norms. Id. at 2065. Counsel’s performance deserves

substantial deference and there is a strong presumption counsel’s performance fell

within the range of reasonable professional assistance. Id. Regarding the prejudice

component, the Supreme Court has explained “[t]he defendant must show that

there is a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 2068. A reasonable



                                           3
probability is one sufficient to undermine confidence in the outcome. Id. We have

recognized, “given these principles and presumptions, the cases in which habeas

petitioners can properly prevail . . . are few and far between.” Chandler v. United

States, 218 F.3d 1305, 1313 (11th Cir. 2000) (quotation omitted).

       In a narrow range of circumstances, however, such as actual or constructive

denial of counsel, state interference with counsel’s assistance, or actual conflicts of

interest, courts presume prejudice to the defendant. See Strickland, 104 S. Ct. at

2067. In such situations, prejudice is so likely the “case-by-case inquiry into

prejudice is not worth the cost.” Id. In a companion case to Strickland, the

Supreme Court held certain circumstances are so likely to prejudice the accused

that litigating their effect is not justified: (1) there is a “complete denial of

counsel;” (2) “counsel entirely fails to subject the prosecution’s case to meaningful

adversarial testing;” and (3) counsel is called on to render assistance under

circumstances where competent counsel very likely could not. United States v.

Cronic, 104 S. Ct. 2039, 2046-47 (1984).

       As an initial matter, based on the testimony from court personnel, Thomas,

and Thomas’s counsel, the district court did not clearly err in finding counsel fell

asleep once during the non-contested testimony of Sharon Delamain, a bank teller.

Counsel responded inappropriately to an evidentiary question from the court



                                             4
during Delamain’s testimony, which supports an inference counsel was asleep

prior to the question. The judge presiding over Thomas’s trial, however, noted “at

no time during the trial, which encompassed approximately 22 hours, did the Court

witness [counsel] nodding off, sleeping, or otherwise inattentive.” Further, the

record supports the district court’s finding counsel fully participated in the trial.

Thus, Thomas’s ineffective assistance of counsel claim is amenable to analysis

under the Strickland framework.

      Although sleeping, even for a short period of time, is inexcusable, Thomas

has failed to establish prejudice. Delamain did not identify any of the defendants,

she was not cross-examined by any of the defendants, and she did not testify to

contested matters. None of the parties disputed the occurrence of the robbery;

rather, the crux of the trial was the identities of those involved. Four co-

conspirators testified against Thomas, specifically identifying him and linking him

to the bank robberies. Counsel made objections and cross-examined all four

witnesses. Due to the overwhelming evidence against Thomas from the co-

conspirator testimony, and counsel’s engagement in the trial during those periods,

Thomas has failed to establish a reasonable probability the outcome of the trial

would have changed had counsel been awake and alert during Delamain’s

testimony. Strickland, 104 S. Ct. at 2068.



                                            5
                                          II.

      Thomas also argues the district court erred by not conducting an evidentiary

hearing and relying on facts this Court found inadequate to resolve the claim on

direct appeal. Our concern on direct appeal was that the trial court not act as fact

finder and witness. The assignment of the instant § 2255 motion to a different

judge resolved our concern. Accordingly, the district court did not err in relying

on the evidentiary hearing held before the trial court.

      AFFIRMED.




                                           6
