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

No. 05-3978
KEITH MILLER,
                                            Petitioner-Appellant,
                                 v.

WALTER E. MARTIN,Œ
                                           Respondent-Appellee.
                           ____________
             Appeal from the United States District Court
      for the Northern District of Indiana, Fort Wayne Division.
       No. 1:04-CV-028-TS—Theresa L. Springmann, Judge.
                           ____________
    ARGUED JANUARY 24, 2007—DECIDED MARCH 15, 2007
                     ____________


    Before RIPPLE, ROVNER, and WILLIAMS, Circuit Judges.
  PER CURIAM. Indiana prisoner Keith Miller, who is 71
years old, is serving a 48-year sentence for his convic-
tions on 18 counts of state securities violations. Miller,
who was convicted in absentia after failing to appear
for trial, attended his sentencing hearing but remained
silent throughout the proceedings on the advice of his
attorney, Kevin McShane. McShane likewise refused to
participate. After his convictions and sentence were up-


Œ
  Walter E. Martin, the current superintendent of the Miami
Correctional Facility, has been substituted for John R. VanNatta
as respondent. See Fed. R. App. P. 43(c).
2                                              No. 05-3978

held on appeal, Miller successfully petitioned for postcon-
viction relief and was granted resentencing, but the
Indiana Court of Appeals reversed that decision. Miller
then filed a petition for a writ of habeas corpus in fed-
eral court, which was denied. On appeal Miller argues
that the state appellate court unreasonably concluded
that McShane’s performance at sentencing was not
deficient or prejudicial, and he further contends that
United States v. Cronic, 466 U.S. 648 (1984), rather than
Strickland v. Washington, 466 U.S. 668 (1984), governs his
claim. We conclude that Cronic is indeed the proper
framework, but that, regardless of which standard we
apply, Miller meets his burden. Accordingly, for the
reasons set forth in the following opinion, we reverse the
district court’s decision and remand with instructions to
grant the writ of habeas corpus.


                            I.
  The State of Indiana charged Miller with six counts
each of selling unregistered securities, failing to register
as an agent, and securities fraud, after he and a business
associate sold shares in a company they formed without
making necessary disclosures to the investors. Miller did
not appear for the trial scheduled for November 14, 1988.
After satisfying himself that Miller had received notice
of the trial date but deliberately absented himself, the
trial judge decided to try Miller in absentia. The jury
found Miller guilty on all counts.
  Miller was apprehended shortly after the trial. He
retained new counsel, McShane, and appeared for his
sentencing hearing on June 9, 1989. According to Miller’s
later testimony, at the time of the hearing, he had not
yet seen a copy of his presentence investigation report
(“PSR”) or had the opportunity to review it with McShane.
McShane was certain that the appellate court would order
No. 05-3978                                                 3

a new trial because, he believed, the trial in absentia was
“a nullity.” He therefore told Miller not to speak at all
during the sentencing hearing, lest he reveal that he
had notice of his trial date. For his own part, McShane
also remained mute, except to tell the sentencing court
at the outset of the hearing that Miller “does not recog-
nize” the validity of the trial or the “authority of the Court
to proceed to disposition at this time.” The State argued
for double the presumptive sentence of four years’ impris-
onment on each count based on aggravating factors.
McShane, as he testified during the state postconviction
hearing, “did not make any sort of presentation or resist
the State’s presentation.” The court imposed a sentence
of eight years on each count of conviction, with the sen-
tences on six counts to run consecutively and the remain-
ing 12 to run concurrently.
  McShane’s prediction that Miller’s convictions would
surely be overturned on appeal proved wrong. The appel-
late court did, however, order a limited remand for a
hearing on whether Miller had knowingly absented him-
self from trial (a necessary precondition to a trial in
absentia). On remand, the trial court conducted a hearing
and again concluded that Miller had knowingly failed
to appear. The appellate court upheld this finding and
therefore rejected Miller’s argument that the trial in
absentia was improper. Miller v. State, 593 N.E.2d 1247
(Ind. Ct. App. 1992). The court affirmed the convictions
and sentence, and shortly thereafter the Indiana Su-
preme Court denied Miller’s petition for discretionary
review.
  On May 8, 1995, Miller filed a petition for postconviction
relief in which he advanced nine grounds for relief,
including the argument that McShane provided ineffec-
tive assistance of counsel at sentencing. More than six
years later—the reasons for this unconscionable delay
are not clear from the record—a hearing was finally held,
4                                                 No. 05-3978

and both Miller and McShane testified. Miller testified
that his PSR contained numerous errors, most relating to
the facts of his offense, that went uncorrected at the
sentencing hearing.1 When asked if he made any presenta-
tion to the sentencing court, McShane stated, “None
whatsoever, other than to advise the Court that we
would not be making a presentation.” He explained that
at the time of sentencing, it was his “firm opinion” that a
new trial would be ordered on appeal, and he did not
want Miller to be questioned about whether he had actual
notice of his trial date. When asked specifically if he had
cross-examined witnesses, commented on exhibits, or
otherwise participated, he stated that he “did nothing.”
Ultimately, the court concluded that Miller had to be
resentenced because he was denied the effective assist-
ance of counsel at his sentencing hearing. Finding that
McShane “did not present any mitigating evidence,” did
not rebut any evidence presented by the State, and did not
correct “material factual errors” in the PSR, the court
concluded that McShane’s performance rendered the
proceedings “fundamentally unfair.”
  The State appealed, and the Indiana Court of Appeals
reversed. State v. Miller, 771 N.E.2d 1284 (Ind. Ct. App.


1
  For example, Miller disputes the statements in his PSR that
he had 13 prior arrests; that he had been involved in similar
business deals in Wisconsin, Nevada, and California; that he
sold unregistered securities to “at least fifteen” Indiana resi-
dents; and that he was involved with a corporation named “Lion’s
Head, Inc.,” which was subject to a cease-and-desist order from
the Indiana Securities Division. His testimony at the postcon-
viction hearing is the only evidence in the record that the
PSR contained errors. Although the State argues that Miller’s
self-serving statements do not establish that the PSR contained
any errors, it points to nothing in the record to contradict
that testimony.
No. 05-3978                                                5

2002). Applying Strickland, the appellate court noted that
McShane’s choice to stand mute, while “unorthodox,” was
a clear-cut example of a “purely strategic decision” that
was not unreasonable based on prevailing professional
norms. See id. at 1288-89. The court also concluded that
Miller could not establish that McShane’s decision preju-
diced him. Focusing only on Miller’s claim that errors
in the PSR went unchallenged, the court concluded that
Miller had not established that correcting those errors
would have changed the sentence. Id. at 1289. The court
reasoned that the length of Miller’s sentence was due
almost entirely to his criminal history, which no amount
of participation by McShane could have changed. Id.
   After the Indiana Supreme Court denied transfer, Miller
filed a petition under 28 U.S.C. § 2254 in federal district
court. Miller raised several claims, but the only one
relevant to this appeal is his argument that the Indi-
ana Court of Appeals acted contrary to clearly estab-
lished law in concluding that counsel provided constitu-
tionally sufficient representation at sentencing. The
district court concluded that the state appellate court’s
decision was reasonable and denied Miller’s petition and
his subsequent request for a certificate of appealability.
Miller filed a notice of appeal, and we granted a certificate
of appealability on the ineffective-assistance claim.


                            II.
  We review the district court’s denial of a habeas corpus
petition de novo. See Montgomery v. Uchtman, 426 F.3d
905, 909-10 (7th Cir. 2005). Under the Antiterrorism and
Effective Death Penalty Act of 1996, a federal court may
not grant a writ of habeas corpus on any claim adjudicated
on its merits in state court unless the state court’s deci-
sion was “contrary to, or involved an unreasonable applica-
tion of, clearly established Federal law, as determined by
6                                                No. 05-3978

the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d).
  Miller first argues that the state appellate court improp-
erly applied Strickland rather than Cronic to his inef-
fective-assistance claim. Counsel’s failure to participate
in the sentencing hearing was so complete that, according
to Miller, prejudice should have been presumed. If Miller
is correct that the state appellate court applied the
wrong legal standard to his ineffective-assistance claim,
then the resulting decision is contrary to Supreme Court
precedent. See Van Patten v. Deppisch, 434 F.3d 1038,
1043 (7th Cir. 2006).
   Some uncertainty exists with regard to the appropriate
standard for evaluating claims of ineffective assistance of
counsel when counsel’s efforts appear particularly lacking.
Ordinarily, ineffective-assistance claims are governed
by the two-part inquiry articulated in Strickland. To
prevail, the defendant must demonstrate that counsel’s
performance was so deficient that it fell below an objective
standard of reasonableness. See Strickland, 466 U.S. at
687-88; Montgomery, 426 F.3d at 913. He must also estab-
lish that he was prejudiced by the deficient performance,
i.e., that but for counsel’s errors there is a reasonable prob-
ability that the outcome would have been different. See
Strickland, 466 U.S. at 694. However, in certain types
of cases, prejudice is “so likely that case-by-case inquiry
into prejudice is not worth the cost,” and so it is presumed.
Id. at 692. This occurs when (1) the defendant “is denied
counsel at a critical stage”; (2) counsel “entirely fails to
subject the prosecution’s case to meaningful adversarial
testing”; or (3) counsel is called upon to represent a client
in circumstances under which no lawyer could provide
effective assistance. Cronic, 466 U.S. at 659-61.
  Miller argues that the second Cronic exception applies
to his case. Indeed, we have held that the effective aban-
No. 05-3978                                               7

donment of a defendant at sentencing calls for the applica-
tion of Cronic. Patrasso v. Nelson, 121 F.3d 297, 304 (7th
Cir. 1997). In that case, the lawyer for a defendant con-
victed of aggravated battery and attempted murder did
not respond to the State’s presentation of aggravating
factors at sentencing. We held that the attorney, who
“entirely failed to represent his client,” did not act in an
objectively reasonable manner because he was obligated
to try to mitigate his client’s punishment. See id. at 303-
04. The performance was “so lacking” that we presumed
it to have prejudiced the defendant. See id. at 304.
  Our analysis cannot end with Patrasso, however, be-
cause intervening cases have emphasized that the sec-
ond Cronic exception is “exceedingly narrow.” See United
States v. Theodore, 468 F.3d 52, 56 (1st Cir. 2006). For it
to apply, “the attorney’s failure must be complete.” Bell
v. Cone, 535 U.S. 685 (2002). In Bell, another case ad-
dressing an attorney’s responsibilities at sentencing,
the petitioner faulted counsel for failing to adduce any
mitigating evidence or make a closing argument at his
sentencing hearing. The Court declined to apply Cronic,
concluding that the errors were “of the same ilk as other
attorney errors we have held subject to Strickland’s
performance and prejudice components.” Id. at 697-98. In
the wake of Bell, courts have rarely applied Cronic,
emphasizing that only non-representation, not poor
representation, triggers a presumption of prejudice. See
Theodore, 468 F.3d at 57 (explaining that Cronic did not
apply where attorney’s errors were not “tantamount to
non-representation”); United States v. White, 341 F.3d 673,
679 (8th Cir. 2003) (Cronic did not apply unless “counsel
completely failed to participate in the proceedings”); see
also Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir. 1998)
(Cronic applies when counsel was “not merely incom-
petent but inert”).
8                                               No. 05-3978

  In this case, McShane’s advocacy at sentencing was so
non-existent as to fall within even a very narrow excep-
tion. Other than orally moving for a new trial and ex-
plaining several times that neither he nor Miller would
participate in the proceedings, McShane said nothing
throughout the sentencing hearing. By his own admission,
he did not offer a shred of mitigating evidence, object to (or
consult with his client about) errors in the PSR, or even
lobby for a sentence lower than the one urged by the State.
In his own words, he “did nothing.” McShane’s perfor-
mance was therefore even more lacking than that of the
attorney in Bell, who made a brief opening statement
asking for mercy, cross-examined a witness for the State,
highlighted his client’s distinguished military service, and
objected to the introduction of photographs of the victims.
Bell, 535 U.S. at 708; see Theodore, 468 F.3d at 56-57.
  Although the State insists that McShane’s failure to
participate was “strategic” and all but unreviewable, no
discernable strategy was at work here. McShane explained
why he instructed Miller to remain silent—to prevent the
judge from learning that Miller was aware of his trial
date—but McShane never explained his own silence. He
gave no indication that he had reason to believe the court
would force him to testify against his own client by
revealing what Miller knew. In any event, McShane could
have declined to discuss the trial but still commented on
issues relating to the sentence. To hold that “strategy”
justified McShane’s decision would be to make a mockery
of the word. If McShane feared that making a presenta-
tion at sentencing could somehow prejudice the appeal—
which is not the reason he gave the sentencing court for
his decision—he was wrong, see, e.g., McCaffrey v. Indiana,
577 N.E.2d 617 (Ind. App. 1991), but, more critically, he
does not appear to have conducted any research or con-
sulted the court about his concerns. We fail to see any way
that his silence could have improved his client’s position
No. 05-3978                                               9

at sentencing. We need not speculate, however, because
as we have already stated, McShane never offered a
strategic justification for his own silence. Thus, the
Indiana Court of Appeals unreasonably concluded that
strategy justified McShane’s refusal to participate.
McShane’s total dereliction at sentencing “invites applica-
tion of Cronic rather than Strickland,” and prejudice may
be presumed. Patrasso, 121 F.3d at 304.
  We note, however, that the requirement of proving
prejudice would present no impediment to Miller’s case, as
he satisfies both prongs of the Strickland test. We need
not belabor the point with respect to McShane’s deficient
performance, and as Miller contends, the Indiana Court of
Appeals also unreasonably concluded that McShane’s
silence was not prejudicial. Focusing almost exclusively
on the errors in the PSR that McShane failed to point
out, the court concluded that, because of Miller’s crim-
inal history, the sentence would have been no different
had the errors been brought to the court’s attention. This
conclusion is strange because some of the errors Miller
has identified in his PSR concern his criminal record.
Moreover, the court did not address any of the other
ways in which Miller argued that McShane’s silence
prejudiced him. Miller points out, for example, that the
State’s presentation of aggravating factors went wholly
unchallenged. And McShane did not present, or even
research, any mitigating factors, such as Miller’s assertion
that he had already paid restitution to some victims.
Before imposing the sentence, the trial judge stated
specifically that he “[could not] find any mitigating fac-
tors,” which leads us to conclude that the lopsidedness of
the presentations was as evident at the time as it appears
from the cold record. McShane knew that the court
was contemplating the maximum sentence, but he ad-
vanced no argument to challenge the appropriateness of
such a sentence for a non-violent offender who defrauded
10                                             No. 05-3978

investors of an amount less than $30,000. Nor did he see
fit to argue against the imposition of consecutive sen-
tences. Under these circumstances, Miller could certainly
show that there is a “reasonable probability” that the
outcome of the proceedings was affected by McShane’s
performance.
  Finally, we are compelled to express our concern with
the advocacy on behalf of the State in this matter. We
are hard-pressed to recall so pronounced a dereliction of
duty on the part of an attorney as occurred at Miller’s
sentencing hearing. Of course, we do not suggest that the
State should have conceded its case, but, where so great
a lapse occurs, it would behoove the State to acknowl-
edge the gravity of the circumstances and address the
shortcomings in its case. Instead, regrettably, both in the
briefs and at oral argument, we experienced only an
intractable effort to rationalize at any cost the constitu-
tional violation that took place.


                           III.
  The Indiana Court of Appeals unreasonably applied
federal law in concluding that McShane’s decision to stand
mute at Miller’s sentencing hearing did not amount to
ineffective assistance of counsel. McShane’s total aban-
donment of his client warrants the application of Cronic,
and we presume that the non-participation prejudiced
Miller’s position at sentencing. Moreover, we would reach
the same result even if we found it necessary for Miller
to establish prejudice. Accordingly, we REVERSE the de-
nial of Miller’s petition and REMAND the case to the
district court with instructions to grant the writ of habeas
corpus to the extent that Miller must be resentenced with
the assistance of counsel.
No. 05-3978                                        11

A true Copy:
      Teste:

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




               USCA-02-C-0072—3-15-07
