                  NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                             File Name: 10a0800n.06

                                             No. 09-2147
                                                                                           FILED
                            UNITED STATES COURT OF APPEALS                              Dec 30, 2010
                                 FOR THE SIXTH CIRCUIT                            LEONARD GREEN, Clerk


THOMAS L. FULLER,                                          )
                                                           )
          Petitioner-Appellant,                            )
                                                           )
v.                                                         )   On Appeal from the United States
                                                           )   District Court for the Eastern
JERI A. SHERRY, Warden,                                    )   District of Michigan
                                                           )
          Respondent-Appellee.                             )


Before:          BOGGS and MCKEAGUE, Circuit Judges; and QUIST, District Judge*

          BOGGS, Circuit Judge. Thomas Fuller appeals the district court’s denial of his petition for

a writ of habeas corpus. Fuller was appointed new defense counsel one hour and twenty-eight

minutes before jury selection began in his state criminal trial. Fuller argues that he is entitled to a

presumption that his counsel was constitutionally ineffective, because it is unlikely that any attorney

could provide competent representation with so little preparation time. The presumption of

ineffectiveness, however, is limited to particularly egregious circumstances. Because Fuller’s case

was fairly straightforward, and witnesses and evidence had been identified by his previous counsel,

we decline to apply the presumption and affirm the denial of Fuller’s petition.




          *
         The Hon. Gordon J. Quist, United States District Judge for the Western District of Michigan,
sitting by designation.
No. 09-2147
Fuller v. Sherry

                                                    I

        The facts of Fuller’s case are taken from the transcript of his jury trial, held on January

21–22, 2004. Fuller was tried in Tuscola County Circuit Court, Michigan, on four counts of resisting

and obstructing a police officer, one count of criminal sexual conduct in the fourth degree, and one

count of marijuana possession. The counts stemmed from an incident that took place at a grocery

store on September 3, 2003.

        The morning of the trial, Fuller requested the replacement of his appointed counsel, Jill

Schmidt. The court granted Fuller’s request and immediately appointed defense attorney Amy

Gierhart, present in the courtroom on another case, to represent Fuller. After a one hour and

twenty-eight minute recess during which Gierhart conferred with Fuller, jury selection began.

Gierhart asked the jurors whether they understood the concept of “reasonable doubt” and that the

burden of proof lay with the prosecution, and she exercised five peremptory challenges.

        When the jury was excused for a lunch break, Gierhart requested an adjournment and relayed

to the court a number of requests that Fuller had made during their discussion, including requests

for discovery of the criminal history of the witnesses, funds for a private investigator, “a motion filed

regarding prior conduct of the complaining officer,” and videotapes of the store, jail, and police car.

Fuller also sought two additional witnesses: a police detective and the store owner. Gierhart

admitted that she did not know the purpose of some of the requests. She also made a motion in

limine to exclude evidence that Fuller was on parole, which was granted, and informed the court that

Fuller was notified of a plea offer. The court then recessed for an hour.



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       After the recess, Gierhart asked the court for an adjournment, stating, “[B]ased on the

circumstances, I have had no time to prepare[.] Mr. Fuller’s requesting adjournment based on

[those] circumstances, as well as the other things that have come to my attention today.” The court

responded that none of Fuller’s discovery-related motions had been properly filed and denied them.

In response to Gierhart’s request for an adjournment, it stated:

                The Court is satisfied that counsel representing the defendant is competent
       and can provide adequate representation.
                Counsel for the defendant was aware of jury trial, was preparing on another
       case for jury selection today. So I'm satisfied that counsel certainly was prepared for
       jury selection in this case.
                There have been a number of discovery requests that I really quite frankly
       don’t even understand how it would be logical, or relevant, or material, or admissible
       in this case.
                Defense counsel ready? I'm ready to try the case. Bring in the jury, we’ll
       have opening statements.

The trial then began.

       The prosecution presented six witnesses. The first, Jill Brady, testified that Fuller had visited

the market where she worked several times on September 3, 2003. She stated that Fuller stared at

her and made sexual comments. After Fuller’s third visit, Brady phoned the sheriff’s department

because she felt uncomfortable that Fuller was still outside. She alleged that Fuller returned and

asked her to approach the counter, and that when she did so, he lifted his arm and brushed her breast

with the back of his hand. She stated that she did not believe the contact was accidental and that

Fuller smiled. Shortly after Fuller left the store, Sheriff’s Deputy Chris Rogner arrived at the market,

and Brady told him that Fuller was walking down the road. On cross-examination, Gierhart’s only

question to Brady was what brand of cigarettes Fuller normally purchased.


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No. 09-2147
Fuller v. Sherry

        Next, Deputy Rogner testified that when he responded to Brady’s call, she told him that

Fuller had touched her and made sexual innuendos. Rogner left in pursuit of Fuller, who he saw

dump some items on the hood of a pickup truck and run behind a house. Rogner said he gave Fuller

verbal commands to stop, but that Fuller attempted to climb a fence. Rogner testified that, while

saying, “stop, police,” he continued to pursue Fuller, firing a shot into the ground. Sheriff’s Deputy

Joshua Herman then arrived. The two officers told Fuller to get on the ground, and when Fuller did

not immediately comply, Rogner sprayed him with pepper spray. The officers cuffed Fuller and took

him to a patrol car. Fuller then went “relatively willingly.” On cross-examination, Gierhart elicited

that Rogner did not activate the lights of his police car while pursing Fuller, and that Fuller was

given no first aid to treat the effects of the pepper spray.

        The third witness, Deputy Herman, confirmed Rogner’s account of the arrest. He testified

that, when he stopped to assist Rogner, he was driving a marked patrol car and wearing a full

uniform. After arresting Fuller, he retrieved the items left by Fuller on the trunk, including a small

piece of folded paper containing what appeared to be marijuana. On cross-examination, Gierhart

had Herman confirm that Fuller remained handcuffed during the transport to the jail and did not

attempt to get out of the car or strike the officers. During a twenty-minute recess, Gierhart moved

for a mistrial because Herman had testified that there was a parole warrant for Fuller’s arrest, in

violation of the order in limine. The court took the request under advisement.

        The next witness, Herbert Terbush, testified that, while picking peaches at a neighbor’s

house, he saw “an officer chasing a fellow.” He stated that Fuller “struggled” with the officers, who

gave him “repeated commands.” Gierhart did not cross-examine Terbush.

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No. 09-2147
Fuller v. Sherry

       The final two witnesses testified regarding the handling of the substance retrieved by Herman

and the laboratory tests confirming that it was marijuana. The prosecution then rested.

       Gierhart made an opening statement in which she reminded the jury that the prosecution had

to prove each element of each count beyond a reasonable doubt. She stated that Fuller would testify

that his contact with Brady was accidental.

       Fuller, the sole defense witness, testified that he went to the market three times on September

3, 2003. He first went in to buy beer, then ran out of gas and returned to look for a gas can, then

entered the store again to buy cigarettes. He described his contact with Brady as an accidental bump

that happened while he was reaching for the cigarettes, which were kept above the counter behind

which she was working. He left the store, he said, because Brady had a strange look on her face and,

knowing he was still on parole, he wanted no trouble. Fuller said that he walked down the road to

a friend’s house, where he heard a car roar up. He began to run and continued running when he

heard a gunshot, fearing for his life. He claimed that he did not see the first police car or Deputy

Rogner and did not realize he was being chased by an officer until Deputy Herman arrived. Fuller

said he did not immediately get on the ground when told to do so because he was afraid. Gierhart

asked him if he had resisted the officers, and he claimed he had not. On cross-examination, he

admitted the marijuana possession.

       Deputy Rogner, called as a rebuttal witness, testified that Fuller looked “directly” at him

during the chase. Gierhart, on cross, again asked whether Rogner used flashing lights or sirens when

he encountered Fuller, and Rogner confirmed that he did not. The court then recessed for the day.

The only exhibits in the case were the marijuana and the lab report.

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Fuller v. Sherry

        The next morning, both sides gave closing arguments. Gierhart emphasized that Fuller had

not intentionally made contact with Brady, that Deputy Rogner did not use his lights and siren while

pursuing Fuller, and that Fuller was not told by the officers that he was under arrest. The jury

reached a verdict that afternoon, voting to convict Fuller of criminal sexual conduct in the fourth

degree, possession of marijuana, and two of the four counts of resisting and obstructing a police

officer. Fuller was sentenced as a habitual offender to one year in prison for the marijuana

conviction and concurrent terms of five-and-a-half to fifteen years in prison for the other convictions.

        On state appellate review, Fuller argued that he was denied the effective assistance of counsel

guaranteed by the Sixth Amendment because his attorney had so little time to confer with him before

the trial. In his brief on appeal, Fuller relied on Powell v. Alabama, 287 U.S. 45 (1932), Morris v.

Slappy, 461 U.S. 1 (1983), and United States v. Cronic, 466 U.S. 648 (1984). He explained:

        The argument in this case is not that Ms. Gierhart did anything specifically that
        resulted in ineffective assistance of counsel; the argument is that no attorney placed
        in her position could have rendered Mr. Fuller effective assistance of counsel. A line
        of cases beginning with [Cronic] deals with this exact situation.

Quoting Bell v. Cone, 535 U.S. 685, 696 (2002), Fuller argued that his case fell into a category in

which a presumption of prejudice applies, because counsel was placed in “circumstances in which

competent counsel very likely could not render assistance.”

        The Michigan Court of Appeals rejected Fuller’s ineffective assistance claim. The court did

not cite Cronic, relying instead on Strickland v. Washington, 466 U.S. 668 (1984):

        In order to show that counsel was ineffective, defendant must show that counsel’s
        “representation fell below an objective standard of reasonableness,” [Strickland, 466
        U.S. at 688], and that “there is a reasonable probability that, but for counsel’s
        unprofessional errors, the result of the proceeding would have been different.” Id.

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No. 09-2147
Fuller v. Sherry

        at 694. . . . Defendant cannot overcome the presumption that his counsel was
        effective or demonstrate that he was prejudiced by counsel’s limited time to prepare.
        Defendant’s trial attorney fully participated in jury voir dire, effectively
        cross-examined the prosecution’s witnesses, presented defendant’s witnesses, and
        argued for acquittal before the jury. We also note that defendant was acquitted of two
        other charges of resisting and obstructing. Moreover, the case was factually very
        simple and straightforward.

People v. Fuller, No. 255961, 2005 WL 3076931, at *2 (Mich. Ct. App. Nov. 17, 2005) (per

curiam). The Michigan Supreme Court denied leave to appeal. People v. Fuller, 721 N.W.2d 600

(Mich. 2006).

        On November 6, 2006, Fuller filed a federal habeas petition. He again alleged that the trial

court violated his Sixth Amendment right to counsel by appointing him new counsel on the day of

trial and denying his motion for a continuance, and that Cronic, not Strickland, governed his claim.

The district court acknowledged that, under Cronic, there are circumstances in which prejudice is

presumed. In Fuller’s case, however, it found that the circumstances “were such that prejudice to

him could have [been] and [was] avoided by competent counsel.” The court thus held that Fuller’s

claim was governed by Strickland, and that because Fuller had failed to allege any “specific errors

that affected his ability to receive a fair trial,” he “was not deprived of his right to effective assistance

of counsel.” Fuller filed this timely appeal.

                                                     II

        The question before this court is whether, under Cronic, Fuller is entitled to a presumption

of ineffective assistance of counsel in violation of the Sixth Amendment. Fuller’s collateral attack

on his state court conviction is governed by the Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”). Under AEDPA, federal courts

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Fuller v. Sherry

cannot grant a habeas petition for any claim that a state court adjudicated on the merits unless the

state court’s adjudication: “(1) resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law as determined by the Supreme Court of

the United States; or (2) resulted in a decision that was based upon an unreasonable determination

of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d);

see also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001).

        In this case, Fuller claimed that his counsel was per se ineffective, under Cronic. The

Michigan Court of Appeals did not address whether Cronic applied to Fuller’s situation. See Fuller,

2005 WL 3076931. Rather, the court adjudicated the merits of Fuller’s ineffective assistance claim

using the Strickland standard. Id. at *2. As the state court did not articulate its reasoning in rejecting

Cronic, we must decide whether its refusal to apply Cronic’s presumption of prejudice was “contrary

to . . . clearly established Federal law.” Such is the case “‘if the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases’ or ‘if the state court confronts

a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives at a result different from [that] precedent.’” Joseph v. Coyle, 469 F.3d 441, 450

(6th Cir. 2006) (quoting Williams v. Taylor, 529 U.S. 362, 405–6 (2000)).

                                                   III

        Courts typically review a defendant’s claim that he was denied effective assistance of counsel

under the standard set forth in Strickland, which requires him to make a showing of both deficient

performance by counsel and actual prejudice to his case. Strickland, 466 U.S. at 687. But in certain

circumstances, courts may dispense with the Strickland test: a defendant is entitled to a presumption

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Fuller v. Sherry

of prejudice where circumstances arising in a criminal prosecution “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 Supreme Court identified three situations where a defendant is entitled to this

presumption: (1) the “complete denial of counsel,” including situations where counsel was absent

at a “critical stage” of the proceedings; (2) situations where defense counsel “entirely fails to subject

the prosecution’s case to meaningful adversarial testing;” and (3) situations where “the likelihood

that any lawyer, even a fully competent one, could provide effective assistance is so small that a

presumption of prejudice is appropriate.” Id. at 659–60; see also Bell, 535 U.S. at 695–96

(reaffirming Cronic’s holding).

        Fuller argues that his case falls within the third category of Cronic. Appellant’s Br. at 33.

Gierhart, he contends, was “put into a position where she could not provide competent representation

due to the state trial court’s refusal to grant a continuance.” Id. at 47. Because Gierhart “was

afforded insufficient time to responsibly represent her client or prepare for trial,” Fuller argues that

he is entitled “to the presumption of prejudice under Cronic.” Id. at 41.

        Under the third category of Cronic, the presumption of prejudice applies in limited,

egregious circumstances. It is warranted “only when surrounding circumstances justify” it, not

merely because counsel was belatedly appointed and the court refused to grant additional time to

prepare. Cronic, 466 U.S. at 661–62. In Cronic, the Court noted five factors “relevant to an

evaluation of a lawyer’s effectiveness in a particular case,” id. at 663, without stating that all of the

criteria are required or that these are the only factors a court may consider. These factors were: “(1)

the time afforded for investigation and preparation; (2) the experience of counsel; (3) the gravity of

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Fuller v. Sherry

the charge; (4) the complexity of possible defenses; and (5) the accessibility of witnesses to counsel.”

Id. at 652 (citations omitted). For the presumption to apply, the Court stated, the analysis of the

criteria must “demonstrate that counsel failed to function in any meaningful sense as the

Government’s adversary.” Id. at 666. Otherwise, a defendant must point to specific errors by

counsel in order to make out an ineffective assistance claim under Strickland. Ibid.

       The Cronic Court cited Powell as an example of a case in which the presumption was

warranted. That 1932 case involved nine black defendants indicted for a capital offense who had

no representation at all until the morning of their trial. The Supreme Court found this situation so

egregious that, without examining counsel’s actual performance, it concluded that the trial was

“inherently unfair.” 466 U.S. at 660–61 (citing Powell, 287 U.S. at 53). The Court also noted in

Cronic its failure to apply a presumption of ineffectiveness in Avery v. Alabama, 308 U.S. 444

(1940), in which counsel was appointed three days before the start of a capital trial, because it found

that evidence and witnesses were readily accessible to counsel. Cronic, 466 U.S. at 450–53.

       Powell and Avery indicate that the exception to Strickland applies only in rare circumstances.

The Court made that point again in Bell. Addressing an argument that the second category of Cronic

applied, it stated: “When we spoke in Cronic of the possibility of presuming prejudice based on an

attorney’s failure to test the prosecutor’s case, we indicated that the attorney’s failure must be

complete.” 535 U.S. at 696–97. This court, too, has stated that Cronic applies “only where the

constructive denial of counsel and the associated collapse of the adversarial system is [e]minently

clear.” Moss v. Hofbauer, 286 F.3d 851, 861 (6th Cir. 2002) (declining to apply Cronic’s second

category when defense counsel failed to cross-examine key eyewitnesses).

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        Apart from in Powell, the Supreme Court has never found a presumption of ineffectiveness

warranted under the third category of Cronic. Our Circuit, however, has applied the presumption

in a trio of cases involving the late appointment of counsel. Hunt v. Mitchell involved a defendant

charged with felonious assault and domestic violence who was appointed counsel the day of the voir

dire; his trial began the next day. 261 F.3d 575, 578–79 (6th Cir. 2001). The judge gave Hunt the

choice of waiving his right to a speedy trial or proceeding to trial immediately. Id. at 578. Hunt’s

counsel expressed concern about inadequate time to prepare and asked for “ten minutes” to speak

to his new client, but no time to consult was allowed, and opening statements and the first three

prosecution witnesses were presented the next day. Id. at 579. Counsel was thus required to proceed

to voir dire and then to trial “without ever discussing the case with his client and without conducting

any discovery or independent investigation of the facts.” Id. at 583. We held that the state court had

failed to apply clearly established law in holding that Hunt’s counsel was not per se ineffective. No

attorney could provide effective counsel without an opportunity for pre-trial consultation. Ibid.

        In Mitchell v. Mason, 325 F.3d 732 (6th Cir. 2003), this court held that the presumption

applied where defense counsel did not consult with the defendant, facing a charge of first-degree

murder, during the pretrial period because he was suspended from practice during the month before

the trial. Although the defendant repeatedly notified the trial court that his attorney had never visited

him in prison, the court denied a motion for new counsel, and the attorney appeared on the

defendant’s behalf on the first day of jury selection. Id. at 735–36. Because the attorney met with

the defendant “for no more than six minutes” before trial, id. at 742, this court concluded that the



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defendant had been completely denied counsel during a “critical stage” of the proceedings, and that

the case fell within the first category of Cronic. Id. at 748.

       In United States v. Morris, 470 F.3d 596 (6th Cir. 2006), this court found the Cronic

presumption applied where a defendant met with his appointed counsel for only a few minutes, in

a public and crowded “bull pen” cell, before being required to decide whether to plead guilty to state

charges or risk facing more serious federal charges. Id. at 598-99. The attorney had not received

complete discovery on the case, was not aware of the defendant’s criminal record, and was

misinformed about the federal guideline range the defendant would face. Id. at 599, 602. We held

that the situation fell within Cronic’s third category, because no competent counsel could render

effective assistance absent more time to consult and prepare. Id. at 602.

       Our analysis is also guided by several cases in which the presumption was held not to apply.

The Supreme Court has declined to apply it on several occasions. In Chambers v. Maroney, 399

U.S. 42 (1970), a defendant was represented by one legal aid attorney at his first trial, but by a new

attorney from the same organization at his retrial. The latter did not confer with the defendant until

minutes before the trial began and was not entirely familiar with the case. Id. at 53. The Court did

not find a presumption of prejudice. It refused “to fashion a per se rule requiring reversal of every

conviction following tardy appointment of counsel.” Id. at 54. In Morris v. Slappy, the Court found

that a state trial court had not abused its discretion by denying a continuance when substitute counsel

had seven days to prepare and multiple opportunities to confer with previous counsel, and told the

court that he was prepared for trial. 461 U.S. at 11–12. And in Cronic itself, the Court found that

no presumption of prejudice applied when a young real estate lawyer with no trial experience was

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Fuller v. Sherry

appointed to represent a defendant indicted on complicated federal mail fraud charges and given only

twenty-five days to prepare for trial. 466 U.S. at 649–52. The Court noted that the circumstances

were made less egregious because the underlying historical facts in the case were not in dispute, and

the only real issue for the jury was whether the defendant had acted with intent. Id. at 663–65.

        In this case, Fuller emphasizes that Gierhart was appointed as his attorney only eighty-eight

minutes before the voir dire. Appellant’s Br. at 44–45. This was considerably less “than the 25 days

at issue in Cronic, the six days at issue in Slappy, and the three days at issue in Avery,” and “virtually

precluded [Gierhart] from any preparation, investigation, or even meaningful consultation with her

client other than a presumed cursory review of documents.” Ibid. Fuller contends that this time

frame makes his case more akin to Hunt than to Cronic, Slappy and Avery. Id. at 45.

        Although this short time for preparation is indeed striking, the Supreme Court has made it

clear that tardy appointment of counsel alone does not warrant the application of the per se rule.

Chambers, 399 U.S. at 54. As previously mentioned, Cronic identified a number of other factors

relevant to determining whether the presumption of ineffectiveness applies: “(1) the time afforded

for investigation and preparation; (2) the experience of counsel; (3) the gravity of the charge; (4) the

complexity of possible defenses; and (5) the accessibility of witnesses to counsel.” 466 U.S. at 652

(citations omitted). When each of these factors is considered, the late appointment of counsel in

Fuller’s case appears less troubling.

        With respect to the first factor, time for investigation and preparation, we acknowledge that

Gierhart was forced to meet with a new client, discuss a potential plea, consider motions and

discovery requests, review discovery documents, and read the preliminary examination transcript,

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Fuller v. Sherry

all within eighty-eight minutes. She then had approximately one hour between jury selection and

the beginning of testimony to prepare for trial. All six of the witnesses in the case testified on the

day that she was appointed; only closing arguments were made the second day of the trial. Gierhart

obviously had no time for any independent investigation of the case and probably did not have time

to review all of the discovery. She had even less time to prepare than the attorney in Hunt had, as

he was appointed the day before the actual trial began. Gierhart also told the judge that she was not

prepared to try the case, a fact that distinguishes Fuller’s case from Slappy, in which the attorney

indicated that he was prepared to go to trial.

       On the other hand, Fuller’s case differs in a crucial respect from Hunt and Mitchell, in which

the late appointment of counsel left defendants completely unrepresented during the pre-trial period.

In Hunt, the defense attorney had virtually no opportunity to consult with his client before trial or

conduct any investigation. 261 F.3d at 583. In Mitchell, similarly, there was essentially no

representation during the pre-trial period. 325 F.3d at 741. Here, Fuller was never completely

without counsel. He was represented by Schmidt during his arraignment and the preliminary

examination. Presumably, Schmidt investigated Fuller’s case and would have identified additional

evidence and witnesses were any available. Although Fuller made requests for additional discovery

the day of trial, Schmidt may have been aware of his requests and may have determined that no

discovery-related motions were necessary. Indeed, given that the case turned largely on Fuller’s

intent, it seems unlikely that additional investigation could have uncovered useful evidence.

       We note that Gierhart may not have had an opportunity to actually consult with Schmidt.

Thus, it would be improper to conclude that Gierhart benefitted from all of Schmidt’s trial

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preparation. Gierhart had to rely mainly on her brief conversation with Fuller, the police reports, and

the transcript of the preliminary exam, during which prosecution witnesses had been cross-examined

by Schmidt. Still, given that witnesses and evidence had already been identified, and given that the

preliminary examination transcript suggested the witnesses’ likely testimony, the parameters of

Fuller’s case were largely established when Gierhart took over. Unlike Hunt and Mitchell’s

attorneys, she did not have to go to trial entirely unprepared.

       With respect to the second factor, Gierhart was an experienced criminal attorney. Nothing

suggests that she was not competent—even with little preparation—to handle the voir dire and the

evidentiary matters and objections that arose during the trial. She was also equipped to argue to the

jury that the prosecution had not met its burden of proof.

       Third, while Fuller received a lengthy sentence for criminal sexual conduct and resisting and

obstructing a police officer, this sentence was more reflective of his habitual-offender status than the

gravity of the charges he faced. Those charges were less serious than those in Hunt (felonious

assault and domestic violence), Mitchell (first degree murder), and Powell (capital murder).

       Fourth, Fuller’s case was relatively uncomplicated. There were six witnesses and two

exhibits. The preliminary examination transcript was only thirty-seven pages long. The case

essentially turned on credibility: whether the jury believed that Fuller had not intended to touch

Brady or to resist arrest. In Cronic, the Supreme Court noted that a defense lawyer’s task was less

burdensome when the only real issue at trial was the defendant’s intent. 466 U.S. at 663–65. Thus,

Gierhart needed little time to assemble a defense theory.



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       Finally, because Schmidt was responsible for investigating Fuller’s case, the relevant

witnesses were identified and prepared for trial before Gierhart was appointed. Schmidt presumably

would have identified and prepared additional defense witnesses were any available.

       Although in some circumstances, appointing new defense counsel on the day of trial would

so damage the integrity of a criminal trial that a presumption of ineffectiveness would be justified,

that was not so here. Because Fuller’s case was fairly straightforward, and witnesses and evidence

had already been identified, it was possible for an experienced criminal attorney like Gierhart to

provide Fuller with an effective defense, even when she had little time to speak with her new client

and review discovery materials. Fuller’s trial was not stripped “of all its integrity so that a per-se

rule of prejudice is justified without resort to an examination of the actual circumstances of the

case.” Glover v. Miro, 262 F.3d 268, 278 (4th Cir. 2001). Thus, the state court’s refusal to apply

the presumption of prejudice was not contrary to clearly-established Supreme Court precedent.

Rather, the state court properly considered, under Strickland, Gierhart’s actual performance and the

prejudice Fuller suffered. Because Fuller has identified no specific errors on Gierhart’s part, and

Gierhart by all accounts performed effectively, our inquiry is at an end.

                                                 IV

       Because the presumption of ineffectiveness does not apply in Fuller’s case, we AFFIRM the

district court’s denial of Fuller’s petition for a writ of habeas corpus.




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