                                  PUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 14-7245


UNITED STATES OF AMERICA,

                  Plaintiff - Appellee,

           v.

NICHOLAS RAGIN,

                  Defendant - Appellant.



Appeal from the United States District Court for the Western
District of North Carolina, at Charlotte.     Robert J. Conrad,
Jr., District Judge. (3:04-cr-00271-RJC-7; 3:10-cv-00488-RJC)


Argued:   December 10, 2015                      Decided:     March 11, 2016


Before GREGORY     and   SHEDD,   Circuit     Judges,   and   DAVIS,   Senior
Circuit Judge.


Vacated and remanded by published opinion. Judge Gregory wrote
the opinion, in which Judge Shedd and Senior Judge Davis joined.


ARGUED:   Matthew Gridley Pruden, TIN, FULTON, WALKER & OWEN,
PLLC, Charlotte, North Carolina, for Appellant. William Michael
Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North
Carolina, for Appellee.     ON BRIEF:    Jill Westmoreland Rose,
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
GREGORY, Circuit Judge:

     This appeal presents an issue of first impression in this

Circuit:        whether a defendant’s right to effective assistance of

counsel is violated when his counsel sleeps during trial.                                   We

hold that a defendant is deprived of his Sixth Amendment right

to counsel when counsel sleeps during a substantial portion of

the defendant’s trial.

     The    Sixth       Amendment      guarantees        a    criminal       defendant     the

assistance of counsel for his defense.                         U.S. Const. amend. VI.

Although    generally         a     defendant     must    show      that     his    counsel’s

performance was deficient and prejudicial to prevail on a claim

of   ineffective          assistance         of   counsel,          see     Strickland      v.

Washington, 466 U.S. 668 (1984), in United States v. Cronic, 466

U.S. 648 (1984), the Supreme Court held that there are certain

situations        where       the    reliability         of    a     trial     becomes     so

questionable       that       the    defendant     need       not    show    that     he   was

actually     prejudiced.             Instead,      prejudice        is     presumed.       We

believe     that       when    counsel    for      a     criminal        defendant     sleeps

through     a    substantial          portion     of     the    trial,       such    conduct

compromises the reliability of the trial, and thus no separate

showing of prejudice is necessary.

     This       case    presents      such    a   situation.              Nicholas   Ragin’s

Sixth Amendment right to counsel was violated not because of

specific legal errors or omissions indicating incompetence in


                                              2
counsel’s representation but because Ragin effectively had no

legal assistance during a substantial portion of his trial.                              The

evidence    is        not   disputed;   it       demonstrates        that   counsel      was

asleep for much of Ragin’s trial.                        As one witness testified,

counsel was asleep “[f]requently . . . almost every day . . .

morning and evening” for “30 minutes at least” at a time.                            These

circumstances suggest “a breakdown in the adversarial process

that our system counts on to produce just results,” Strickland,

466 U.S. at 696, and from which we must presume prejudice to

Ragin.

        We therefore conclude that Ragin was deprived of effective

assistance       of    counsel     during    his       trial,   in    violation     of   the

Sixth    Amendment.          Accordingly,         we    reverse      the   order    denying

relief under 28 U.S.C. § 2255 and remand for further proceedings

consistent with this opinion.


                                             I.

                                             A.

     On October 18, 2004, a grand jury in the Western District

of North Carolina returned an indictment that charged Ragin,

along     with        six    codefendants,         with     conspiracy        and    other

substantive           offenses      related        to      their       involvement        in

prostitution          and   drug   rings.         Following     the    indictment,       the

district court appointed Nikita V. Mackey as counsel for Ragin.



                                             3
The grand jury subsequently returned a superseding indictment

that     charged     Ragin         with     two       counts:    conspiracy         to     commit

offenses     against         the    United        States,       including     enticing          and

coercing individuals to travel in interstate commerce to engage

in prostitution, interstate transportation of minors to engage

in prostitution, and interstate wire transfer of funds in aid of

racketeering enterprises, in violation of 18 U.S.C. § 371; and

conspiracy to possess with intent to distribute cocaine base and

to employ, hire, use, persuade, induce, entice and coerce minors

in furtherance thereof, in violation of 21 U.S.C. §§ 841, 846,

and 861.

       Ragin pleaded not guilty and was tried before a jury along

with three of his codefendants, Tracy Howard, David Howard, and

Oscar Solano-Sanchez.               The trial lasted from April 3 to April

21,    2006,   and      included          testimony          from    approximately             forty

witnesses.         Of   those       witnesses,          six   testified      about        Ragin’s

direct     involvement         in     the      conspiracy,          while    the     remainder

testified about the acts of the other defendants.

       At the conclusion of trial, the jury found Ragin guilty on

both counts.         On June 25, 2006, three months after trial and

prior to sentencing, Ragin submitted a handwritten letter to the

district    court       in    which       he   complained        about      Mackey.            Ragin

alleged,     among      other       things,           that    “[Mackey]      even        had    the




                                                  4
audacity to fall asleep ‘twice’ during the trial.”                             Supp. J.A.

790.

       At    sentencing,        the   district      court     calculated         a     total

offense level of 40 and a criminal history category of VI based

on Ragin’s accumulation of 16 criminal history points, resulting

in a guidelines range of 360 months to life in prison.                                   The

court sentenced Ragin to 360 months in prison.                       We subsequently

affirmed      Ragin’s     conviction    and      sentence.         United       States    v.

Howard, 309 F. App’x 760 (4th Cir. 2009) (unpublished).

                                           B.

       On    October     1,   2010,   Ragin      moved,    pursuant       to    28    U.S.C.

§ 2255, to have his conviction and sentence vacated.                                 In the

motion, Ragin raised eleven claims for relief, including ten

allegations accusing Mackey of providing ineffective assistance

of    counsel.        Ragin’s    seventh    claim    was    that     “[c]ounsel         fell

asleep during the trial.”              J.A. 27.       Ragin described a single

incident during which he “noticed that [Mackey] was sleeping.”

Id.

       In conjunction with his § 2255 motion, Ragin submitted a

sworn       affidavit     elaborating       on     eight     of     his        ineffective

assistance       of    counsel    claims.         Consistent      with     his       earlier

allegation in his post-trial letter, in paragraph eight of the

affidavit,       Ragin    stated,     “Finally      counsel       fell    asleep       twice




                                            5
during trial which more than shows his lack of interest and

dedication to my case.”           J.A. 64.

      After   the    government        filed      a   response    opposing     Ragin’s

motion, the district court issued an order, concluding that “an

evidentiary hearing is necessary to resolve Petitioner’s claim

that his attorney provided ineffective assistance when he fell

asleep during trial.”        J.A. 113-14.

                                            C.

      At the evidentiary hearing, Ragin called three witnesses,

Peter Adolf, Richard Culler, and Pamela Vernon, and testified on

his   own     behalf.            The   government        called      Special      Agent

Terrell Tadeo and Mackey.

      Adolf, who represented codefendant David Howard at trial,

testified that he “definitely” noticed Mackey sleeping on one

occasion.       J.A.       131.        Adolf       recalled      that,   during    the

prosecution’s       case    in     chief,        government   counsel     approached

Mackey to show him an exhibit that they intended to introduce.

“[Government counsel] walked over to Mr. Mackey, and I remember

that Mr. Mackey was sort of sitting back, leaning back in his

chair with his left elbow on his left thigh, . . . and sort of

with his chin resting on his fist, and [government counsel] held

the document in front of him and he didn’t move, he sort of sat

there.”     J.A. 132.        “Judge Conrad leaned into his microphone,

because we were all sitting there and [Mackey] wasn’t moving and


                                            6
said, ‘Mr. Mackey’ . . . very loudly.”                 Id.       Mackey then “jumped

up and sort of looked around and was licking his lips and moving

his mouth and looked sort of confused and looked all over the

room except at [government counsel].                   And after a few seconds,

he saw [government counsel] standing there and looked at the

document.”         J.A. 133.      After Mackey reviewed the document, he

“went back into the position that he was [in] before with his

chin    on   his    fist.”      Id.        Adolf     did   not    remember    who   was

testifying     at    the   time    or    what      document    the    government    was

showing.

       Adolf did not specifically recall any other occasions where

he noticed Mackey sleeping.              Adolf made clear, however, that he

“really didn’t pay a lot of attention to what [Mackey] was doing

throughout the trial” because he “was dealing with [his] own

client and [the client’s] own issues;” Mackey “wasn’t directly

in [his] line of sight unless [he] looked to the right [and]

. . . [he] was [paying attention to the evidence].”                          J.A. 134-

35.

       Similarly, Culler, who represented codefendant Tracy Howard

at    trial,   testified       that   he    noticed    Mackey      sleeping    on   one

occasion.          Mackey’s     “head      [was]    down      . . .   [and    he    was]

breathing very regularly as if he was sleeping.”                        J.A. 145-46.

Culler further testified that he stated to Adolf that Mackey was

“asleep again.”        J.A. 145.        Although Culler did not specifically


                                            7
recall any other incidents, based on his statement that Mackey

was “asleep again,” he “believe[d]” that Mackey was asleep on

“one other occasion.”          J.A. 146.       Culler, like Adolf, made clear

that he “was focused on the witnesses at that time because they

were talking about [his] client mostly.                  And so [he] didn’t pay

any attention to Mr. Mackey after seeing [him asleep].”                            J.A.

151.       Further, based on Culler’s description of the courtroom,

it appears that Mackey was not in his direct line of sight. 1

       Vernon, a juror in this case, testified that she noticed

Mackey      sleeping    “[f]requently         . . .   almost     every     day    . . .

morning and evening” for “30 minutes at least” at a time.                          J.A.

153-55.       Based     on    the    courtroom    setup,       Mackey    was     sitting

“directly across from [the jurors].”                  J.A. 153.         “We could see

[Mackey] clearly, and we were facing [him] completely.”                              Id.

Vernon      specifically       recalled        that     “[e]vidence       was     being

presented and . . . witnesses were being questioned” when Mackey

was    asleep.         J.A.   154.      When     asked    to    describe       Mackey’s

appearance     during     those      times,    Vernon    said    that    he    appeared

“[t]otally dozed off” and had “his hand on the table and head

down and did not appear to be alert at all.”                      Id.     When Mackey

was called on during trial, Ragin “would have to punch him . . .

or kind of rouse[] him.”            J.A. 155-56.

       1
       Additionally, Culler did not recall at which point during
the trial the sleeping incidents occurred.



                                          8
       In    addition,      Vernon     testified          that    other      jurors    noticed

Mackey sleeping and commented on it in the jury room.                                    While

cross-examining          Vernon      about    Mackey’s          conduct,     the   government

asked whether, during jury deliberations, Vernon “h[e]ld [her]

observation        of    Mr.    Mackey     resting        his    head      against    [Ragin],

. . .       did    you   consider        that       in    your     verdict     against    the

defendant.”         J.A. 157.        Vernon stated, “We discussed it.                    Yes.”

Id.    Vernon found Ragin guilty on both counts.

       Ragin      also   testified       that       Mackey      was   asleep       frequently.

During his testimony at the evidentiary hearing, Ragin expanded

on    his    initial     allegation,         claiming       that      he    observed   Mackey

sleeping between ten and twenty times for up to ten minutes at a

time.       Ragin said he had to nudge Mackey on several occasions

when Mackey failed to respond to testimony presented at trial.

As he sat next to Mackey during the trial, Ragin heard him

snoring and observed his eyes closed.                       On at least one occasion,

Mackey asked Ragin what he missed.

       In addition, Ragin introduced an exhibit containing pages

he    initialed      from      the   trial      transcript,        indicating        occasions

when he asserts Mackey was sleeping.                            The twenty pages Ragin

initialed         covered      testimony     from        each    of   the    witnesses    who

testified about Ragin’s direct involvement in the conspiracy.

Ragin did note, however, that the transcript pages he identified

did not cover all of the testimony that was offered while Mackey


                                                9
was sleeping and that Mackey also slept while other witnesses

testified.        On cross-examination, Ragin acknowledged that he had

only alleged that Mackey was asleep on two occasions in his

letter to the district court and in his sworn § 2255 motion and

affidavit, and admitted that he had not included any details

about   the      witnesses    who    were     testifying       or    the   substance      of

their testimony in his initial allegations.                           Ragin explained

that when he filed the letter and § 2255 motion and affidavit,

he   was    acting    pro    se   and   did      not   have    access      to    the   trial

transcript.        Reading through the trial transcript refreshed his

recollection on when exactly Mackey was sleeping.

       The government called Tadeo and Mackey as witnesses.                            Tadeo

testified that he saw Mackey “nod off” on at least one, possibly

two, occasions.           Tadeo described “nodding off” as “kind of eyes

closed, head dropping” and “struggling to stay awake.”                                   J.A.

179.       Tadeo testified that his focus during trial was on the

evidence presented and that he was “pay[ing] attention to what

witnesses        [were]   saying.”       J.A.      182.        The   witness      box    was

located directly across from the government’s table, where Tadeo

sat.       Mackey was not in Tadeo’s direct line of sight.                             Tadeo

could      not   recall     who   was   testifying        at   the   time       Mackey   was

“nodding off.”

       Mackey testified that he did not recall whether he slept

during the trial.            Mackey explained that he thought he “would


                                            10
have recalled something like that” and that he would expect that

the district court, his client, or one of the other attorneys

would have addressed it on the record if it had been an issue.

J.A. 221.       At the time of this trial, Mackey was running for

state district court judge.          According to Mackey, he first heard

of the sleeping allegations while he was running for sheriff and

viewed them as “political . . . fodder.”                J.A. 222.

                                          D.

     After the evidentiary hearing, the district court issued an

order denying and dismissing Ragin’s § 2255 motion.                          The court

held that the requisite showing of prejudice for ineffective

assistance      of    counsel    varies    depending      on     the    evidence:     a

presumption of prejudice only applies “when the evidence shows

counsel slept through a ‘substantial portion’ of the defendant’s

trial,” whereas the ordinary standard requiring the defendant to

demonstrate      prejudice      applies    in    all    other     cases      involving

isolated allegations that counsel was asleep.                     Ragin v. United

States, No. 3:10-cv-488-RJC, 2014 WL 4105898, at *7 (W.D.N.C.

Aug. 19, 2014) (citing Muniz v. Smith, 647 F.3d 619 (6th Cir.

2011), and Burdine v. Johnson, 262 F.3d 336 (5th Cir. 2001) (en

banc)).

     After      consideration       of     the        testimony        and    evidence

presented,      the   district    court    “f[ound]       that    Mackey      was   not

asleep    for   ‘substantial      portions’      of    the   trial.”         Id.     In


                                          11
support    of     its    finding,          the    court       determined        that    Ragin’s

testimony and his exhibit “listing ten to fifteen times during

the    trial    that    Mackey       was     asleep     [were]       not    credible         . . .

[because] Ragin ha[d] great incentive to embellish his claim at

this    stage    in     the    proceedings.”             Id.        The    court       did    find

credible, apparently, Ragin’s earlier accusation, “made within

three    months    of    the    trial,”          that   Mackey       was    asleep       on    two

occasions,      and     that    this       allegation        was    consistent         with    the

testimony of Culler, Adolf and Tadeo; each testified that Mackey

appeared to be sleeping on one or two occasions.                                Id.    Further,

the court did not find Vernon’s testimony credible because she

“repeatedly      referred       to       Ragin    by    his    first       name    during      her

testimony,      [and]     may       be    remorseful      for       the    severity      of    the

sentence imposed.”            Id.        “It is telling,” the court stated, that

“neither Ragin nor the juror brought Mackey’s alleged sleeping

to the attention of the Court during the trial when it could

have    been    effectively              addressed      if     it    were       occurring       so

frequently.”      Id.

       The district court held that “[e]ven if Mackey fell asleep

once or twice during the protracted trial involving over forty

witnesses, the [trial] transcript reflects his attention to the

six witnesses who directly implicated Ragin.”                             Id.     The district

court, therefore, “appl[ied] the usual Strickland standard and




                                                 12
[would] not presume prejudice.” 2            Id.     After “careful review of

the    trial      transcript,”   the   court       found    that,    based      on   the

“substantial evidence against him, Ragin ha[d] not demonstrated

a reasonable probability of a different outcome” and, therefore,

that “the result of the trial was not fundamentally unfair or

unreliable.”        Id. at *8.    In light of its findings, the district

court denied Ragin’s § 2255 motion.

       Ragin      filed   a   timely   notice       of     appeal,       and   we    have

jurisdiction under 28 U.S.C. § 1291.


                                       II.

                                        A.

       We review de novo a district court’s legal conclusions in

denying a § 2255 motion.          United States v. Stitt, 552 F.3d 345,

350 (4th Cir. 2008).          We also review de novo any mixed questions

of    law   and    fact   addressed    by    the    court    as     to    whether    the

petitioner has established a valid Sixth Amendment ineffective

      2In an alternative holding, the district court stated that
even if it presumed prejudice, it would have found that the
weight of the evidence against Ragin would overcome that
prejudice. Ragin, 2014 WL 4105898, at *7 n.6. Although this is
not critical to our analysis, we note that this was legal error.
See, e.g., Wright v. Van Patten, 552 U.S. 120, 124 (2008)
(“Cronic held that a Sixth Amendment violation may be found
‘without   inquiring  into   counsel’s  actual   performance  or
requiring the defendant to show the effect it had on the trial’
when ‘circumstances [exist] that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified.’”   (alteration in original) (quoting Bell
v. Cone, 535 U.S. 685, 695 (2002))).



                                        13
assistance claim.           See Smith v. Angelone, 111 F.3d 1126, 1131

(4th        Cir.    1997)       (“Whether      counsel’s      performance       was

constitutionally adequate is a mixed question of law and fact

which we review de novo.” (internal quotation marks omitted)).

When the court conducts an evidentiary hearing prior to ruling,

we review its findings of fact for clear error.                    See Stitt, 552

F.3d at 350.         “A finding is ‘clearly erroneous’ when although

there is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm conviction

that a mistake has been committed.”                 United States v. Dugger,

485 F.3d 236, 239 (4th Cir. 2007) (quoting United States v. U.S.

Gypsum Co., 333 U.S. 364, 395 (1948)).

                                          B.

       An    accused’s      right   to    be   represented    by   counsel   is    a

fundamental component of our criminal justice system.                     Lawyers

in criminal cases “are necessities, not luxuries.”                     Gideon v.

Wainwright,        372   U.S.   335,     344   (1963).     “Their    presence     is

essential because they are the means through which the other

rights of the person on trial are secured.”                  Cronic, 466 U.S. at

653.    “Of all the rights that an accused person has, the right

to be represented by counsel is by far the most pervasive for it

affects his ability to assert any other rights he may have.”

Id. at 654.




                                          14
     In Strickland, the Supreme Court set forth a two-part test

for deciding ineffective assistance of counsel claims.                   466 U.S.

at   687.      First,   the   defendant       “must     show    that     counsel’s

performance     was   deficient.”      Id.        To    prove    deficiency,     a

defendant “must show that counsel’s representation fell below an

objective standard of reasonableness.”             Id. at 688.         Second, the

defendant must show that the deficient performance resulted in

actual prejudice to the defendant.               Id. at 687.      A showing of

prejudice requires the defendant to prove that “counsel’s errors

were so serious as to deprive the defendant of a fair trial, a

trial whose result is reliable.”           Id.

     Strickland and its companion case Cronic gave more specific

instructions on finding prejudice.               The Court stated that in

certain limited contexts, “prejudice is presumed.”                     Strickland,

466 U.S. at 692.        In Cronic, the Court reiterated the general

Strickland     rule   and   also    provided     that    “[t]here       are   . . .

circumstances that are so likely to prejudice the accused that

the cost of litigating their effect in a particular case is

unjustified.”     Cronic, 466 U.S. at 658.              The Court identified

three distinct situations in which a presumption of prejudice is

appropriate:     First, prejudice is presumed when the defendant is

completely denied counsel “at a critical stage of his trial.”

Id. at 659.     Second, prejudice is presumed if there has been a

constructive denial of counsel.         Id.      This happens when a lawyer


                                      15
“fails    to       subject     the     prosecution’s      case      to   meaningful

adversarial testing,” thus making “the adversary process itself

presumptively unreliable.”               Id.     Third, the Court identified

certain instances “when 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 so

small that a presumption of prejudice is appropriate without

inquiry into the actual conduct of the trial.”                      Id. (citing, as

an example, Powell v. Alabama, 287 U.S. 45 (1932)).

       That a case warrants a finding of presumed prejudice under

any of these three prongs is “an extremely high showing for a

criminal defendant to make.”              Brown v. French, 147 F.3d 307, 313

(4th   Cir.    1998).         If,    however,   the    defendant     makes    such   a

showing, it would necessarily follow that there was a structural

error,   which,       by    definition,    “affect[s]    the     framework     within

which the trial proceeds” and prevents the trial from “reliably

serv[ing] its function as a vehicle for determination of guilt

or innocence.”        Arizona v. Fulminante, 499 U.S. 279, 310 (1991).

       Therefore,          Cronic     errors     are    structural,         requiring

automatic reversal without any inquiry into the existence of

actual prejudice.           See, e.g., Wright, 552 U.S. at 124 (“Cronic

held   that    a   Sixth     Amendment    violation     may    be   found    ‘without

inquiring      into    counsel’s      actual    performance    or    requiring    the

defendant to show the effect it had on the trial.’” (quoting


                                           16
Bell, 535 U.S. at 695)); Musladin v. Lamarque, 555 F.3d 830,

837-38     (9th     Cir.     2009)        (“Cronic         specifically         holds           that

automatic       reversal     is       required      where       a   defendant        is    denied

counsel at a ‘critical stage,’ and we cannot depart from that

holding.”); United States v. Arbolaez, 450 F.3d 1283, 1294 (11th

Cir. 2006) (explaining that the “constructive denial of counsel

is    ‘legally     presumed       to     result      in     prejudice’         and    thus        to

constitute a structural error” (quoting Strickland, 466 U.S. at

692)).      In     other    words,       “counsel’s         incompetence         can       be    so

serious that it rises to the level of a constructive denial of

counsel which can constitute constitutional error without any

showing     of    prejudice.”            Strickland,            466    U.S.    at     703        n.2

(Brennan, J., concurring in part and dissenting in part) (citing

Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984), for

the     proposition       that        “unconscious         or       sleeping    counsel          is

equivalent to no counsel at all”).

       Absent     these    narrow       circumstances           of    presumed       prejudice

under     Cronic,    defendants          must       show    actual       prejudice          under

Strickland.        See Strickland, 466 U.S. at 692; Cronic, 466 U.S.

at 666 & n.41.            Actual prejudice requires that the defendant

“show    that     there    is     a    reasonable      probability         that,          but    for

counsel’s unprofessional errors, the result of the proceeding

would    have     been     different.           A   reasonable         probability          is    a




                                            17
probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694.


                                       III.

       Although    this   is    a    case    of   first   impression    in     this

Circuit, four other circuits have considered whether application

of a presumption of prejudice under Cronic is warranted when a

defendant’s     counsel    is    asleep      during   trial.     All    of   these

circuits have held that prejudice must be presumed when counsel

sleeps either through a “substantial portion of [a defendant’s]

trial” or at a critical time during trial.                 Javor, 724 F.2d at

834 (“When a defendant’s attorney is asleep during a substantial

portion of his trial, the defendant has not received the legal

assistance necessary to defend his interests at trial.”); see

also   Muniz,     647   F.3d    at   625-26    (“Muniz    must   show   that   his

attorney slept through a substantial portion of the trial for

the Cronic presumption of prejudice to attach.”); Burdine, 262

F.3d at 341 (“[W]e conclude that a defendant’s Sixth Amendment

right to counsel is violated when that defendant’s counsel is

repeatedly unconscious through not insubstantial portions of the

defendant’s capital murder trial.”); Tippins v. Walker, 77 F.3d

682, 687 (2d Cir. 1996) (“We therefore conclude that Tippins

suffered prejudice, by presumption or otherwise, if his counsel




                                        18
was repeatedly unconscious at trial for periods of time in which

defendant’s interests were at stake.”).

     We agree with other circuits and hold that a defendant’s

Sixth     Amendment       right      to    counsel        is     violated       when    that

defendant’s counsel is asleep during a substantial portion of

the defendant’s trial. 3             In such circumstances, Cronic requires

us   to    presume        prejudice        because      the      defendant       has     been

constructively       denied      counsel.         For     good    reason    –    “sleeping

counsel is tantamount to no counsel at all.”                           United States v.

DiTommaso, 817 F.2d 201, 216 (2d Cir. 1987).

                                             A.

     While      “episodes       of   inattention        or     slumber    are    perfectly

amenable    to     analysis      under     the    Strickland          prejudice    test[,]

. . .     ‘[p]rejudice          is   inherent’       at        some    point,     ‘because

unconscious or sleeping counsel is equivalent to no counsel at

all.’”     Tippins, 77 F.3d at 686 (quoting Javor, 724 F.2d at

834).      It    should    go    without     saying      that     “[e]ffectiveness         of

counsel depends in part on the ability to confer with the client

during trial on a continuous basis, and the attorney must be

‘present     and    attentive’        in    order       to     make    adequate        cross-

examination – ‘a matter of constitutional importance’ by virtue

     3 Our holding today does not preclude a claim in which
counsel is asleep during a critical portion of the defendant’s
trial.   See Tippins, 77 F.3d at 687.    Ragin, however, has not
pled facts that would implicate such a rule.



                                             19
of the Sixth Amendment.”               Id. (quoting Javor, 724 F.2d at 834).

Further, “if counsel sleeps, the ordinary analytical tools for

identifying    prejudice         are    unavailable.          The    errors     and   lost

opportunities       may    not     be    visible     in   the        record,    and    the

reviewing court applying the traditional Strickland analysis may

be forced to engage in ‘unguided speculation.’”                          Id. (quoting

Javor, 724 F.2d at 834); see also Javor, 724 F.2d at 834-35

(“[A]n   inquiry     into    the       question    of   prejudice       would    require

‘unguided     speculation’         and     ‘would       not    be     susceptible      to

intelligent,       even    handed       application’      because       an     attorney’s

absence prejudices a defendant more by what was not done than by

what was done.”).           In other words, when counsel is absent –

physically or due to sleep - “the evil lies in what the attorney

does not do, and is either not readily apparent on the record,

or occurs at a time when no record is made.”                        Javor, 724 F.2d at

834.

       Moreover,     the    question        of     prejudice        under      Strickland

ordinarily involves consideration of the range of strategies and

tactics available to a lawyer.               Strickland, 466 U.S. at 689-90.

“[T]he buried assumption in our Strickland cases is that counsel

is present and conscious to exercise judgment, calculation and

instinct, for better or worse.”                   Tippins, 77 F.3d at 687.             Of




                                           20
course, we cannot make such an assumption when counsel is asleep

during a substantial portion of the defendant’s trial. 4

                                             B.

       We do not understand Ragin’s claim of prejudice to be that

his lawyer failed to take any particular initiative at trial

that resulted in prejudice, as the government argues; rather,

Ragin claims that during a substantial portion of the trial, he

had    no        counsel   to    determine        what   options      were   available.

Indeed, “there is a great difference between having a bad lawyer

and having no lawyer:                if the lawyering is merely ineffective,

then       the    decision      to   grant   relief      turns   on    the   degree   of

incompetence and prejudice to the defendant; if the defendant

had no lawyer, prejudice is legally presumed in every case, and

the defendant is entitled to relief in every case.”                              United

       4
       We recognize that there are “real dangers in presuming
prejudice merely from a lack of alertness.” Tippins, 77 F.3d at
686, 688 (noting that “[l]awyers may sometimes affect a drowsy
or bored look to downplay an adversary’s presentation of
evidence” and expressing concern that a per se rule may provide
“unscrupulous attorneys” a “tactical device” that could be
“sprung at some later strategic phase . . . if events developed
very badly for a defendant”); Prada-Cordero v. United States, 95
F. Supp. 2d 76, 81-82 (D.P.R. 2000) (“[A] court should be
cognizant that attorneys may use the appearance of sleep as a
strategic tool to downplay the importance of an adversary’s
presentation”; “[m]oreover, a rule that required a finding of
prejudice whenever an attorney slept during a trial would
provide unscrupulous practitioners with a safety valve to annul
trials that they feel they are at risk of losing.” (citing
Tippins, 77 F.3d at 688)). These “dangers” are not, however, at
issue in this case as there is no suggestion in the record that
Mackey used the appearance of sleep as part of a strategy.



                                             21
States v. Taylor, 933 F.2d 307, 312 (5th Cir. 1991).                                When an

attorney is dozing or asleep, a “client cannot consult with his

or her attorney or receive informed guidance from him or her

during the course of the trial.”            Javor, 724 F.2d at 834.

       We   therefore     conclude    that     Ragin       would          suffer     Cronic

prejudice if his counsel was asleep during a substantial portion

of the trial.         Such circumstances implicate a fundamental value

that Strickland instructs us to keep in mind:                             “In every case

the court should be concerned with whether, despite the strong

presumption     of     reliability,     the     result          of    the     particular

proceeding     is     unreliable     because        of    a     breakdown           in    the

adversarial process that our system counts on to produce just

results.”     Strickland, 466 U.S. at 696 (emphasis added).                              Thus,

the    dispositive       question     in     this        case        is    whether        the

circumstances        surrounding     Mackey’s       representation             of        Ragin

justify a presumption of prejudice under Cronic, the issue to

which we now turn.


                                       IV.

       Because we are “left with the definite and firm conviction

that   a    mistake    has   been   committed”       in    the       district       court’s

findings of fact and credibility determinations, we reverse the

district court’s determination that Mackey was not asleep for a




                                       22
substantial portion of the trial.                     See Dugger, 485 F.3d at 239

(providing clear error standard).

                                           A.

      Besides Mackey, who, tellingly, could not recall whether he

was asleep at trial, every witness who testified stated that

Mackey was asleep, appeared to be asleep, or was “nodding off”

at    some    point.        Two    witnesses,          including      the     government’s

witness,     testified      that   Mackey        was      asleep    or     nodding    off    on

possibly      two     occasions.         This        is    consistent        with    Ragin’s

affidavit, which the district court did not discredit.

      Vernon        testified      that        she        noticed        Mackey      sleeping

“[f]requently . . . almost every day . . . morning and evening”

for   “30    minutes       at   least”    at     a     time.        J.A.    153-55.         She

specifically recalled that “[e]vidence was being presented and

. . . witnesses were being questioned” when Mackey was asleep. 5

J.A. 154.          Further, Vernon testified that other jurors noticed

Mackey sleeping and commented on it in the jury room.                               Moreover,

on cross-examination, the government asked whether, during jury

deliberations, Vernon “h[e]ld [her] observation of Mr. Mackey

resting      his    head    against      . . .       the    defendant.”           J.A.   157.

      5Even assuming, arguendo, that Mackey only slept during the
portion of trial in which no witness testimony directly
implicated Ragin, “[t]he adversary process becomes unreliable
when no attorney is present to keep the taint of conspiracy from
spreading to the client.”    United States v. Russell, 205 F.3d
768, 772 (5th Cir. 2000).



                                           23
Vernon stated, “We discussed it.              Yes.”    Id.        As it stands, it

appears not only that the jurors discussed their observations of

Mackey “resting his head” during jury deliberations but also,

even       more   troubling,   that   the   jurors    may   have    held   Mackey’s

conduct against Ragin in reaching their verdict. 6

       Remarkably, the district court dismissed Vernon’s testimony

because      she   “repeatedly   referred     to   Ragin     by    his   first    name

during her testimony, [and] may be remorseful for the severity

of the sentence imposed.” 7           Ragin, 2014 WL 4105898, at *7.             There

is, however, nothing in the record to suggest that Vernon had

knowledge of the sentence the district court imposed, that she

felt remorseful, or that she had improper communications or any

interactions with Ragin. 8        This was clear error.



       6Surprisingly, the government never clarified whether
Vernon actually did hold Mackey’s conduct against Ragin in
reaching her verdict.    Whether this evidence would support a
finding of actual prejudice under Strickland is an issue we need
not reach because prejudice in this case is presumed under
Cronic.
       7
       The district court also stated that Vernon should have
brought Mackey’s sleeping to the district court’s attention.
While it would have been helpful had Vernon, or any of the
jurors, alerted the district court to Mackey’s conduct, we
cannot assume that any juror knew or should have known that they
could bring this information to the court’s attention. Further,
we are unaware of any duty that the juror had to bring the
conduct to the district court’s attention.
       8
      It is true that Vernon referred to Ragin by his first name
– Nicholas – while she referred to Mackey by his first and last
names, as did Adolf. J.A. 130, 132. But it is also true that



                                         24
       Indeed, Vernon’s testimony is not inconsistent with all the

other witnesses for the following reasons.                     First, the district

court utterly failed to consider the likely possibility that

each       witness    saw    Mackey   asleep     or   nodding       off    on    different

occasions.           Had the court done so, it would have reached the

conclusion that Mackey could have been asleep on at least six or

seven different occasions. 9              This is consistent with Vernon’s

testimony – Mackey appeared to be asleep “[f]requently . . .

almost every day . . . morning and evening.”                    J.A. 153-54.

       Second, based on the courtroom setup, Mackey was sitting

“directly across from [the jurors].”                     J.A. 153.              The jurors

“could       see     [Mackey]    clearly,    and      [they]    were      facing     [him]

completely.”           Id.       Every   other     witness     at    the    evidentiary

hearing stated that Mackey was not directly in their line of

sight and that their attention was directed at the witness box,

which was located at the opposite side of the courtroom from

where Mackey sat.               Cf. Tippins, 77 F.3d at 688 (“[Government

counsel] – who presumably would be looking elsewhere most of the

time - testified that he too saw [defendant’s lawyer asleep].”).


during trial, the witnesses referred to Ragin by his first name.
There is scant reason in these circumstances to discredit
Vernon’s testimony.
       9
       Adolf witnessed Mackey asleep on one occasion. Culler and
Ragin each witnessed Mackey asleep on at least two occasions.
And, Tadeo witnessed Mackey “nodding off” on one or two
occasions.



                                            25
Common sense dictates that a juror who is seated directly across

from counsel can observe counsel asleep more often during a two-

week trial than a person who does not have a direct line of

sight to counsel and whose attention is admittedly directed to

the opposite side of the courtroom from where counsel sat.                                   Not

only would the juror see counsel asleep more frequently based on

this courtroom setup but the juror would also be in the best

position to accurately assess how long counsel was asleep during

each incident.

     Finally,          there        is     nothing       in     the       record     that    is

inconsistent       with,       or     discredits,         Vernon’s        testimony.         The

government       did    not     call       any     witnesses        to    dispute     Vernon’s

testimony, although it had ample opportunity to do so.                                In fact

Tadeo,     the    government’s            only        proffered     witness        other    than

Mackey,     testified         that       Mackey        nodded     off     on   one    or    two

occasions.

     Astonishingly,            Mackey        himself          did        not   dispute      the

allegation       that    he     was       sleeping       during     trial;     instead,      he

referred the district court to the trial transcript based on his

belief that the court would have admonished him on the record.

Perhaps;    perhaps      not.            Perhaps      like    other      witnesses    in    this

case, the district court was looking elsewhere most of the time

– for example, at the witness and juror box.




                                                 26
      Vernon’s testimony is unrebutted and consistent with the

testimony of every witness in this case:                           Mackey slept “almost

every day” – “morning and evening” – of the trial.                               Generally,

we   are   reluctant     to    overturn         a    district         court’s    weight    and

credibility       determinations;          but,       when     the      testimony     of    an

unbiased       witness   -   who     was   in       the   best     position      to   observe

Mackey’s       conduct   –    goes     unrebutted,           and      that   testimony      is

discredited       without     good    reason,         there      is    justification       for

finding clear error. 10

      Based on this record, we find it impossible not to conclude

that Mackey slept, and was therefore not functioning as a lawyer

during     a    substantial     portion         of    the     trial. 11         “Unconscious

counsel equates to no counsel at all.”                           Burdine, 262 F.3d at



      10Because we conclude that the district court committed
clear error in discrediting the testimony of a disinterested
witness in the best position to observe Mackey throughout the
trial, we need not consider the district court’s credibility
finding concerning Ragin’s testimony that Mackey slept on ten to
twenty occasions during his trial.
      11
       While we conclude that the manner in which Mackey slept
in the instant case was substantial, we decline to define this
term for all cases.   Whether a lawyer slept for a substantial
portion of the trial should be determined on a case-by-case
basis, considering, but not limited to, the length of time
counsel slept, the proportion of the trial missed, and the
significance of the portion counsel slept through. At the same
time, however, while we decline to dictate precise parameters
for what must necessarily be a case-by-case assessment, we
caution district courts that the scope of our holding today
should not be limited to only the most egregious instances of
attorney slumber.



                                            27
349.     Unconscious counsel cannot “analyze, object, listen or in

any way exercise judgment on behalf of a client.”              Id.    Because

we have no basis to conclude that an attorney who sleeps through

a substantial portion of the trial has exercised judgment on his

client’s behalf, “we have insufficient basis for trusting the

fairness of that trial and consequently must presume prejudice.”

Id.     Therefore, the fact that Mackey was sleeping during Ragin’s

trial amounted to constructive denial of counsel for substantial

periods of that trial.

                                       B.

       The government contends that the facts of this case “stand

in stark contrast to the ‘egregious’ facts presented in cases

where    courts    have   presumed    prejudice.”    Gov.’s    Opp.    Br.   17

(citing Burdine, 262 F.3d at 349).          We disagree, as the facts of

this case are equally – if not more – egregious than the facts

presented in cases where other circuits have presumed prejudice.

       In Javor, for example, the magistrate judge noted that the

trial judge saw that counsel was asleep but did not “call a

recess because the attorney would only doze off momentarily and

then wake up.”      724 F.2d at 836 (Anderson, J., dissenting).              The

magistrate judge also found that “all of the ‘dozing’ occurred

during times when the court proceedings did not concern issues

which    applied    to    defendant   Javor,”   as   there    were    multiple

defendants in Javor.          Id.     Based on this record, the Ninth


                                       28
Circuit    nevertheless         held      that      counsel    was     asleep     during   a

substantial portion of the two-week trial.

     In Burdine, “four neutral witnesses” – three jurors and the

deputy clerk – testified that counsel “repeatedly dozed or slept

as   the   State        questioned         witnesses      and    presented        evidence

supporting       its     case       against    Burdine.”         262       F.3d   at    339.

Specifically, one juror recalled seeing counsel “doze or nod off

between    two     and       five    times     while     the    prosecuting       attorney

questioned       witnesses.”             Id.        Another    juror    testified      that

counsel was asleep “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.”        Id.        The    deputy     clerk

recalled    “lots       of    incidents”       of    counsel    sleeping      during    the

trial.     Id.         There were, however, three witnesses, including

another juror, who testified that they had not noticed counsel

asleep during the trial.                 Id.     Based on this record, the Fifth

Circuit    held    that       the    “repeated       unconsciousness        of    Burdine’s

counsel    through       not     insubstantial          portions     of     the   critical

guilt-innocence phase of Burdine’s capital murder trial warrants

a presumption of prejudice.”               Id. at 349.

     Here, as discussed extensively above, every witness stated

that they observed Mackey asleep on at least one occasion, with

multiple witnesses testifying that Mackey was asleep on multiple

occasions.       Vernon, who had a direct view of Mackey, testified


                                               29
that Mackey appeared to be asleep “[f]requently . . . almost

every day . . . morning and evening” for “30 minutes at least”

at a time during the two-week trial.                          The jurors discussed and

commented       on     Mackey       being        asleep,       including       during           jury

deliberations         (and    may     have      held    this    fact       against    Ragin       in

reaching their verdict).                  None of this evidence is in dispute.

There    were    no    witnesses          that    testified         that    Mackey        was   not

asleep – not even Mackey.                    These facts are extraordinary and

egregious.

       As the government concedes, “[t]here is little doubt that

trial     counsel       cannot        provide          effective        assistance           while

sleeping.”           Gov.’s    Opp.       Br.    17.       Indeed.          And,     as    Cronic

recognized, there are some egregious circumstances that “are so

likely    to    prejudice       the       accused      that    the    cost    of     litigating

their effect in a particular case is unjustified.”                                 466 U.S. at

658.    This case presents such circumstances.


                                                 V.

       “While    a     criminal       trial       is    not     a    game     in     which      the

participants are expected to enter the ring with a near match in

skills,    neither       is    it     a    sacrifice       of       unarmed    prisoners         to

gladiators.”         Id. at 657 (quoting United States ex rel. Williams

v. Twomey, 510 F.2d 634, 640 (7th Cir. 1975)).                              Ragin was thrown

unarmed into the arena to face the gladiators without benefit of



                                                 30
the assistance of counsel to which he had an absolute right.            As

a   result,   Ragin’s    trial    was    not   a   confrontation   between

adversaries in which any reasonable person can have confidence.

Such an unfair battle – one in which one side is represented and

the other is not - is a clear and direct violation of the Sixth

Amendment.    Accordingly, we vacate the judgment of conviction

and sentence, direct entry of judgment in favor of Ragin on his

§ 2255   motion,   and   remand   for    further   proceedings   consistent

with this opinion.

                                                     VACATED AND REMANDED




                                    31
