     Case: 17-20661    Document: 00515508370        Page: 1    Date Filed: 07/29/2020




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                                       Fifth Circuit

                                                                      FILED
                                                                    July 29, 2020
                                  No. 17-20661
                                                                   Lyle W. Cayce
                                                                        Clerk
DESHUN THOMAS,

            Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

            Respondent - Appellee



                 Appeal from the United States District Court
                      for the Southern District of Texas


Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.
EDITH H. JONES, Circuit Judge:
      This court granted a certificate of appealability on habeas petitioner
Deshun Thomas’s claim that his trial counsel failed to subject the prosecution’s
case to meaningful adversarial testing in violation of United States v. Cronic,
466 U.S. 648, 104 S. Ct. 2039 (1984).         Counsel was appointed for Thomas.
After reviewing the parties’ supplemental briefs, and finding no error in the
federal district court’s rejection of that claim, we affirm.
                                         I.
      In 2006, after a second jury trial, a Texas jury convicted Thomas of
aggravated robbery and sentenced him to seventy-five years’ imprisonment.
During closing argument and sentencing, Thomas’s trial counsel, Ken McLean,
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acknowledged the strength of the prosecution’s evidence and indicated that
Thomas deserved a “substantial sentence.” After his conviction and sentence
were affirmed on direct appeal,1 Thomas filed a pro se habeas petition in state
court, asserting, inter alia, ineffective assistance of counsel based on McLean’s
statements during summation and sentencing. Thomas’s petition cited to both
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and United
States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). The state district court
denied Thomas relief in a reasoned opinion that tracked Strickland but did not
expressly reference Cronic.             The Texas Court of Criminal Appeals
subsequently denied relief without written order, adopting the findings of the
state district court.2
       In 2014, Thomas filed the instant federal petition pursuant to
28 U.S.C. § 2254, asserting, inter alia, that McLean’s statements at trial
amounted to an abandonment of Thomas in violation of Cronic. Applying the
deferential standards prescribed by the Antiterrorism and Effective Death
Penalty Act of 1996, the federal district court denied Thomas relief. The court
reasoned that Strickland, not Cronic, governed Thomas’s claim, and that,
under Strickland, Thomas failed to show McLean was constitutionally
ineffective or that Thomas was otherwise prejudiced. In 2018, another panel
of this court granted a certificate of appealability solely on Thomas’s Cronic




       1 An intermediate Texas appellate court affirmed the judgment on direct appeal. In
so doing, however, it held that Thomas’s trial counsel’s closing arguments were professionally
incompetent in violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)
because they essentially conceded his client’s guilt, but appellate counsel had waived any
showing, pursuant to the other Strickland prong, of prejudice to Thomas.

       2 That neither the state habeas court nor the TCCA addressed the state appellate
court’s holding regarding deficiency is rather odd, but since we exercise discretion to review
Thomas’s Cronic claim de novo, the discrepancy does not matter.
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claim3 and instructed the parties (after appointment of counsel for Thomas) to
address whether that claim was exhausted and adjudicated in state court, and
whether AEDPA applies.
                                            II.
       Thomas contends he exhausted his Cronic claim, but the state habeas
court failed to adjudicate the claim on the merits. Thus, according to Thomas,
the federal district court should have reviewed the claim de novo rather than
applying AEDPA deference. The State now concedes that Thomas exhausted
his claim. We therefore consider that issue waived and turn to the standard of
review question. See 28 U.S.C. § 2254(b)(3); Bledsue v. Johnson, 188 F.3d 250,
254 (5th Cir. 1999) (finding waiver when the State admitted that the petitioner
“ha[d] sufficiently exhausted his state remedies”).
       Under AEDPA, “we must defer to the state habeas court unless its
decision ‘was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United
States.’” Haynes v. Cain, 298 F.3d 375, 379 (5th Cir. 2002) (en banc) (quoting
28 U.S.C. § 2254(d)(1)).       But AEDPA only applies to claims that are
“adjudicated on the merits” in the state habeas proceedings.                 Johnson v.
Williams, 568 U.S. 289, 292, 133 S. Ct. 1088, 1091 (2013).                If a claim is
properly raised but is not adjudicated on the merits, we review the claim de
novo. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).
       Thomas argues the state habeas court failed to adjudicate his Cronic
claim on the merits, thus triggering de novo review, because the court cast its
decision in Strickland terms and failed to expressly reference the Cronic
standard. We presume the claim was adjudicated on the merits. See Johnson,


       3Thomas did not brief the prejudice prong of Strickland on his appeal to this court,
and consequently, that issue was waived. In any event, prejudice could not be shown on the
record before us.
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568 U.S. at 301, 133 S. Ct. at 1096 (“When a state court rejects a federal claim
without expressly addressing that claim, a federal habeas court must presume
that the federal claim was adjudicated on the merits . . . .”). Although we are
not entirely convinced that Thomas has rebutted this presumption,4 Thomas’s
Cronic claim fails even when reviewed de novo.5
       “Ordinarily, to prevail on an ineffective assistance of counsel claim, a
habeas petitioner must satisfy Strickland’s familiar two-part test.” Haynes,
298 F.3d at 380 (citing Strickland, 466 U.S. at 700, 104 S. Ct. at 2071). The
petitioner must show that (1) counsel’s “representation fell below an objective
standard of reasonableness”; and (2) “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068.
Cronic created “a very limited exception to the application of Strickland’s two-
part test,” whereby prejudice is presumed “in situations that ‘are so likely to
prejudice the accused that the cost of litigating their effect in the particular
case is unjustified.’” Haynes, 298 F.3d at 380 (quoting Cronic, 466 U.S. at 658,
104 S. Ct at 2046). The Supreme Court has identified three such situations,
one of which Thomas relies on here. See Bell v. Cone, 535 U.S. 685, 695,
122 S. Ct. 1843, 1850 (2002). Specifically, prejudice is presumed when the
“petitioner is represented by counsel at trial, but his or her counsel ‘entirely


       4 The allegations underlying Thomas’s relevant Strickland claim (that McLean
conceded guilt during summation and argued for a substantial sentence) are identical to
those underlying his Cronic claim. And the state habeas court’s reason for denying the
Strickland claim (that McLean’s statements were strategic) explains why the court did not
apply Cronic. See Haynes, 298 F.3d at 381 (“[S]trategic or tactical decisions are evaluated
under Strickland’s traditional two-pronged test for deficiency and prejudice.”). Thus, while
the state court could have expressly stated that “Thomas’s Cronic claim fails for the same
reason as his Strickland claim,” that finding seems implicit in its decision.

       5“Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo
review when it is unclear whether AEDPA deference applies . . . .” Berghuis v. Thompkins,
560 U.S. 370, 390, 130 S. Ct. 2250, 2265 (2010).
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fails to subject the prosecution’s case to meaningful adversarial testing.’”
Haynes, 298 F.3d at 380 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047).
      Thomas argues he satisfies this exception based on McLean’s statements
during summation and sentencing. We disagree. As Cronic suggests—and we
have stressed—prejudice is not presumed unless an attorney entirely fails to
defend his client.   See Bell, 535 U.S. at 695, 122 S. Ct. at 1851.     Thus, in
Haynes, this court distinguished between “counsel’s failure to oppose the
prosecution entirely” and counsel’s failure to do so “at specific points during
trial.” 298 F.3d at 381. Prejudice is presumed only in the former scenario
because “it is as if the defendant had no representation at all.” Id. In the same
vein, Cronic applies to concessions only when they result in a “complete
abandonment of counsel”; that is, the attorney must concede “the only factual
issues in dispute.” Id. In contrast, particular strategic or tactical concessions,
such as those made to garner credibility with the jury at sentencing or on more
severe counts, are subject to Strickland. Id.
      Here, McLean did not entirely fail to subject the prosecution’s case to
meaningful adversarial testing. As the district court detailed in its thorough
opinion, McLean actively advocated on Thomas’s behalf throughout trial. He
moved to suppress evidence. He cross-examined the State’s witnesses on their
identification of Thomas as the culprit, ultimately impeaching several of them
and prompting the arguably most critical witness to admit she lied to the
police.   He also cross-examined the detectives involved in the underlying
investigation on their search and arrest of Thomas, as well as their subsequent
handling of evidence.
      Moreover, McLean did not abandon Thomas by conceding the only
factual issues in dispute. Faced with overwhelming evidence of guilt, McLean
described the evidence as “really strong,” “substantial,” “persuasive,” and
“pretty powerful” during his summation at the end of the guilt/innocence phase
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of trial. But he also emphasized that the jury must look at the evidence and
twice admonished them to acquit “if you have a reasonable doubt” about
Thomas’s guilt.       McLean pressed on the jury the weaknesses in the
prosecution’s case, emphasized the high burden of proof, and pointed to several
potential sources of reasonable doubt.           When read in context, McLean’s
summation indicates that his comments were strategically made to maintain
credibility with the jury.
      McLean’s sentencing arguments during the punishment phase confirm
this strategy.6 Testimony during sentencing established that Thomas had an
extensive criminal history, including nine felony and misdemeanor convictions,
three of them following this crime, and he was likely involved in drug
trafficking. This crime had devastating effects on the victim, who died from
complications caused by his wounds after testifying at the first trial. The
victim had survived, cared for by his mother, for several years in constant pain,
endured at least eight surgeries resulting from Thomas’s actions, and
ultimately succumbed to a morphine overdose. The prosecution was seeking a
life sentence.
      Once again, to maintain credibility, McLean acknowledged these facts
and stated that he “would be a fool if [he] suggested” that Thomas did not
“deserve[] a pretty substantial sentence” that was more than the minimum of
fifteen years.      McLean also successfully lodged objections during the
prosecution’s argument:
             [THE PROSECUTION]: Asking a jury for a life
             sentence is a big thing. And I recognize that. And it’s
             a tough thing. It’s a tough thing for any jury to do, but
             in this case, even you were looking at Deshun Thomas
             and saying, buddy, give me something, give me some


      6  McLean died after he tried this case and was never available for post-conviction
inquiry into the defense.
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            reason why you don’t serve the maximum punishment
            in this—
            MCLEAN: Objection. That’s a comment on his failure
            to testify.
            THE COURT: Sustained.
            [THE PROSECUTION]: Show us something—
            THE COURT: Again, get away from that. They are
            under no obligation to do anything.

And throughout the punishment phase, he continued to contest search issues
raised previously at trial and extensively cross-examined a police officer on a
more recent search. Ultimately, McLean’s strategy paid off: Thomas avoided
a life sentence.
       Cronic does not proscribe defense counsel’s approach. See 466 U.S. at
656 n.19, 104 S. Ct. at 2045 n.19 (“Of course, the Sixth Amendment does not
require that counsel do what is impossible or unethical. If there is no bona fide
defense to the charge, counsel cannot create one and may disserve the interests
of his client by attempting a useless charade.”). But more importantly, no
Supreme Court case has applied Cronic to overturn a conviction solely because
of counsel’s alleged trial errors. In Bell, for instance, the Court contrasted
Strickland and Cronic, noting that those cases had been decided on the same
day and that Cronic applied only when counsel’s failure to mount a meaningful
defense was “complete.” 535 U.S. at 697, 122 S. Ct. at 1851. Counsel’s mere
failure to oppose the prosecution’s sentencing case “at specific points” did not
satisfy Cronic because the difference between that case and Strickland was a
“difference . . . not of degree but of kind.” Id. Consequently, the Court held,
counsel’s “failure to adduce mitigating evidence and the waiver of closing
argument”—during the sentencing stage of a capital case—“are plainly of the
same ilk as other specific attorney errors we have held subject to Strickland’s
performance and prejudice components.” Id. at 697–98 (collecting cases).
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       Likewise, in Florida v. Nixon, the Court reiterated that Cronic is “a
narrow exception” to Strickland. 543 U.S. 175, 190, 125 S. Ct. 551, 562 (2004).
The Court then observed that “just how infrequently” Cronic will apply was
demonstrated in Cronic itself, where the Court refused to find such structural
error based on a claim of prejudicially incompetent representation by an
“inexperienced, underprepared attorney in a complex mail fraud trial.” Id.7
       Nevertheless, pointing to our en banc decision in Haynes, Thomas
contends that Cronic applies because McLean’s statements do not qualify as a
“partial concession.” In Haynes, we held Cronic inapplicable to an attorney’s
strategic concession to a lesser-included offense in a multi-count indictment.
See Haynes, 298 F.3d at 382. In reaching that conclusion, we recognized that
“those courts that have confronted situations in which defense counsel
concedes the defendant’s guilt for only lesser-included offenses have
consistently found these partial concessions to be tactical decisions” and thus
not subject to Cronic. Id. at 381.
       Thomas attempts to distinguish this case from Haynes by arguing that
he was facing one count, and McLean’s concession was therefore “full and
complete.” As noted, however, McLean did not concede the only factual issues
in dispute. In any event, Haynes was not so limited. “[T]he Supreme Court
[has] held that even defense counsel’s full concession of guilt is not necessarily
an indication that ‘counsel has entirely failed to function as the client’s
advocate . . . .’”     Barbee v. Davis, 728 F. App’x 259, 264 (5th Cir. 2018)
(emphasis added) (quoting Nixon, 543 U.S. at 189–91, 125 S. Ct. at 560).
Indeed, we have stated that “counsel may make strategic decisions to



       7 The Supreme Court’s more recent decision in McCoy v. Louisiana, 138 S. Ct. 1500
(2018) is not to the contrary. McCoy held that counsel violates the Sixth Amendment by
conceding a client’s guilt to the jury over the client’s objections. No issue was raised here
about Thomas’s objecting to McLean’s approach in his summation and sentencing arguments.
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acknowledge the defendant’s culpability and may even concede that the jury
would be justified in imposing the death penalty, in order to establish
credibility with the jury.” Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997).
      The common thread is strategy. McLean’s statements did not amount to
a “complete” failure to mount a defense. Cronic does not apply.
      For the foregoing reasons, the judgment of the district court denying
habeas relief is AFFIRMED.




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