     Case: 17-30195      Document: 00514993287         Page: 1    Date Filed: 06/12/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                    United States Court of Appeals
                                                                             Fifth Circuit
                                      No. 17-30195                         FILED
                                                                       June 12, 2019

ERIC MASSEY,
                                                                      Lyle W. Cayce
                                                                           Clerk

                                                 Petitioner-Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:15-CV-3701


Before SMITH, WIENER, and ELROD, Circuit Judges.
PER CURIAM: *
       Both Eric B. Massey (“Eric”), Louisiana state prisoner # 559593, and his
codefendant and brother, Brian Massey (“Brian”), were convicted of second-
degree murder in a joint state court jury trial. The trial court judge sentenced
Eric to life imprisonment without the benefit of parole, probation, or
suspension of sentence.
       The federal district court denied all of the claims raised in Eric’s pro se
28 U.S.C. § 2254 application and dismissed it with prejudice. We granted Eric


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
     Case: 17-30195      Document: 00514993287         Page: 2    Date Filed: 06/12/2019


                                      No. 17-30195

a certificate of appealability as to whether his trial counsel provided ineffective
assistance under Strickland v. Washington, 466 U.S. 668 (1984), and United
States v. Cronic, 466 U.S. 648 (1984), by failing to attend Eric’s state court
sentencing hearing.
       Under AEDPA, we review issues of law de novo and findings of fact for
clear error, applying the same deference to the state court’s decision as does
the federal district court. 1 The district court was required to defer to the state
court’s decision on questions of law and mixed questions of law and fact unless
they were “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court.” 2 “A state
court’s determination that a claim lacks merit precludes federal habeas relief
so long as ‘fairminded jurists could disagree’ on the correctness of the state
court’s decision.” 3
       To prevail on a claim of ineffective assistance of trial counsel, an
applicant is generally required to satisfy Strickland’s two-prong test. Under
the first prong, the applicant must show that counsel’s performance was
deficient and “fell below an objective standard of reasonableness.” 4 “[A] court
must indulge a strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.” 5 Under the second prong, the
applicant must establish that the deficient performance was prejudicial to the
defense by showing “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” 6



       1 Ortiz v. Quarterman, 504 F.3d 492, 496 (5th Cir. 2007).
       2 § 2254(d)(1).
       3 Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v. Alvarado, 541

U.S. 652, 664 (2004)).
       4 Strickland, 466 U.S. at 687─88.
       5 Id. at 689.
       6 Id. at 691─92, 694.




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                                     No. 17-30195

The failure to establish either prong defeats the claim. 7 The combined
standards of review of Strickland and § 2254(d) are “doubly deferential.” 8
Thus, the question before a district court is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” 9
       There is, however, a limited exception to the normal deficient
performance and prejudice analysis for a situation in which the applicant was
actually or constructively denied counsel at a critical stage of his criminal
proceedings. 10 In such a case, prejudice will be presumed. 11 Such “[a]
constructive denial of counsel occurs . . . in only a very narrow spectrum of
cases.” 12
       For reasons that are unclear from the record, Eric’s trial counsel failed
to attend his client’s sentencing hearing. Consequently, Brian’s trial counsel
agreed to stand in for Eric’s trial counsel, who had already informed the
prosecutor that he would not be filing any post-verdict motions. After the state
court sentenced Eric to the statutorily mandated sentence of life
imprisonment, his substitute counsel objected to the jury’s findings and the
sentence imposed.
       We agree with the district court that Eric’s claim of ineffective assistance
of counsel fails under Strickland because he cannot show a reasonable
probability that his sentence was affected by either his trial counsel’s absence
from sentencing or his substitute counsel’s representation at the sentencing
hearing. 13


       7 Id. at 697.
       8 Cullen v. Pinholster, 563 U.S. 170, 202 (2011) (quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)).
       9 Richter, 562 U.S. at 105.
       10 Cronic, 466 U.S. at 658─61.
       11 Id. at 658.
       12 Childress v. Johnson, 103 F.3d 1221, 1228─29 (5th Cir. 1997).
       13 See Strickland, 466 U.S. at 694, 697.




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                                       No. 17-30195

       The Cronic presumption applies when a defendant has only standby
counsel at sentencing because standby counsel has a “limited role” and “does
not speak for the defendant or bear responsibility for his defense.” 14 Here,
Brian’s lawyer was not designated as standby counsel for Eric, and his role at
the sentencing hearing was not limited in a way that would make him the
functional equivalent of standby counsel. Rather, although his role on Eric’s
behalf at the sentencing hearing was unplanned, he (1) was familiar with the
case, (2) had worked with Eric’s trial counsel, and (3) understood that he was
acting on Eric’s behalf as evidenced by his objections. 15 Brian’s counsel’s role
on Eric’s behalf at the sentencing hearing, coupled with Eric’s counsel’s
presentencing contributions, eschew a claim of constructive denial of counsel.
Moreover, considering the unusual circumstances involved in this case and the
deference that federal courts owe to the state trial courts, Eric cannot show
that the state court’s conduct was an unreasonable application of Strickland
or Cronic under § 2254(d). 16
AFFIRMED.




       14  United States v. Taylor, 933 F.2d 307, 312─13 (5th Cir. 1991).
       15  Cf. United States v. Russell, 205 F.3d 768 (5th Cir. 2000) (holding that counsel’s
absence during trial required presumption of prejudice under Cronic because “the probability
of [the defendant’s] guilt increased during the government’s presentation of evidence against
his co-conspirators”); Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) (holding that
defense attorney was “the equivalent of standby counsel” because “[h]e took no responsibility
for advocating the defendant’s interests”); Tucker v. Day, 969 F.2d 155 (5th Cir. 1992)
(holding failure of counsel to assist defendant at resentencing hearing was a constructive
denial of counsel because counsel (1) stated that he was “just standing in,” (2) did not know
the facts of the case, and (3) made no attempt to represent the defendant’s interests).
        16 See Wright v. Van Patten, 552 U.S. 120, 124─26 (2008); Richter, 562 U.S. at 103.

The state post-conviction court did not expressly rule that Cronic did not apply. However, the
state post-conviction court’s application of, and determination that Eric could not prevail
under, Strickland necessarily implies a conclusion that Cronic did not apply. This is
consistent with the Supreme Court’s observation in Wright v. Van Patten, that Strickland
ordinarily applies and that Cronic is simply a narrow exception.


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