       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2     Quintero v. Bell                             No. 99-6724
    ELECTRONIC CITATION: 2004 FED App. 0150P (6th Cir.)
                File Name: 04a0150p.06                                        _________________
                                                                                  OPINION
UNITED STATES COURT OF APPEALS                                                _________________
              FOR THE SIXTH CIRCUIT                          ALAN E. NORRIS, Circuit Judge. Petitioner Derrick
                _________________                         Quintero brought this action for a writ of habeas corpus in
                                                          federal district court, alleging that he had suffered ineffective
 DERRICK QUINTERO ,             X                         assistance of counsel because his attorney failed to object to
           Petitioner-Appellee, -                         the presence of seven jurors who had served on the juries that
                                 -                        convicted his co-conspirators. The district court conditionally
                                 -  No. 99-6724           granted the writ, and we affirmed in a published opinion.
            v.                   -                        Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001). Respondent
                                  >                       warden filed a petition for certiorari with the United States
                                 ,                        Supreme Court. The Supreme Court granted certiorari and
 RICKY BELL, Warden,             -
        Respondent-Appellant. -                           vacated our opinion, remanding for reconsideration in light of
                                                          its opinion in Bell v. Cone, 535 U.S. 685 (2002). Bell v.
                                N                         Quintero, 535 U.S. 1109 (2002). Because Cone is
   On Remand from the United States Supreme Court.        distinguishable on its facts, we affirm the judgment of the
    No. 98-00246—Thomas B. Russell, District Judge.       district court and reinstate our original opinion.

               Submitted: March 15, 2001                    In Cone, the Supreme Court reversed a decision of this
                                                          court granting a petitioner a writ of habeas corpus. In that
           Decided and Filed: May 24, 2004                case, the petitioner, Cone, had been sentenced to death at a
                                                          hearing in which his counsel failed to introduce any evidence
 Before: KEITH, NORRIS, and DAUGHTREY, Circuit            of mitigation or make a closing statement. We determined
                    Judges.                               that defense counsel’s failures were so egregious that they
                                                          permitted a presumption of prejudice, relying on the Supreme
                  _________________                       Court’s decision in United States v. Cronic, 466 U.S. 648
                                                          (1984). In Cronic, the Supreme Court permitted prejudice to
                       COUNSEL                            be presumed where “counsel entirely fail[ed] to subject the
                                                          prosecution’s case to meaningful adversarial testing,
ON BRIEF: Rickie L. Pearson, OFFICE OF THE                [creating] a denial of Sixth Amendment rights that ma[de] the
ATTORNEY GENERAL, Frankfort, Kentucky, for                adversary process itself presumptively unreliable.” Cronic,
Appellant. Paul L. Whalen, Ft. Thomas, Kentucky, for      466 U.S. at 659.
Appellee.
                                                            The Supreme Court disagreed with our application of the
                                                          rule in Cronic to Cone’s case. The Court determined that
                                                          because “his counsel [did not] fail[] to oppose the prosecution

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No. 99-6724                             Quintero v. Bell      3

throughout the sentencing proceeding as a whole, but . . .
failed to do so at specific points[,]” Cone was not entitled to
a presumption of prejudice, because that presumption arose
under Cronic only “if counsel entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing.” Cone,
535 U.S. at 697 (quoting Cronic, 466 U.S. at 659) (emphasis
in original).
  On reviewing the Supreme Court’s decision in Cone and
the facts of this case, we conclude that the case at bar is
distinguishable. Because the alleged deficient performance in
Cone affected only specified parts of Cone’s trial, prejudice
could not be presumed. In the case at bar, on the other hand,
counsel’s acquiescence in allowing seven jurors who had
convicted petitioner’s co-conspirators to sit in judgment of his
case surely amounted to an abandonment of “meaningful
adversarial testing” throughout the proceeding, making “the
adversary process itself presumptively unreliable.” Cronic,
466 U.S. at 659. Accordingly, Cone is distinguishable, and
petitioner is entitled to a presumption of prejudice.
   For the foregoing reasons, the judgment of the district court
is affirmed and our previous opinion in this matter, Quintero
v. Bell, 256 F.3d 409 (6th Cir. 2001), is reinstated.
