                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-3648
                                   ___________

James Washington, Jr.,                *
                                      *
           Appellant,                 *
                                      * Appeal from the United States
      v.                              * District Court for the Western
                                      * District of Missouri.
Steve Moore; Jay Nixon, Attorney      *
General,                              *
                                      *
           Appellees.                 *
                                 ___________

                             Submitted: June 20, 2005
                                Filed: August 30, 2005
                                 ___________

Before LOKEN, Chief Judge, ARNOLD and COLLOTON, Circuit Judges.
                             ___________

ARNOLD, Circuit Judge.

       James Washington, Jr., appeals from the denial by the district court1 of his
28 U.S.C. § 2254 petition for relief from a state robbery conviction. He argues that
the district court erred by concluding that his attorney did not provide ineffective
assistance under the sixth amendment of the Constitution. We affirm.




      1
       The Honorable Scott O. Wright, United States District Judge for the Western
District of Missouri.
                                           I.
       A Missouri jury convicted Mr. Washington of first degree robbery for forcibly
stealing a piece of electronic equipment from a department store by use or threatened
use of a dangerous instrument, see Mo. Rev. Stat. § 569.020. The jury was not
persuaded by Mr. Washington's alibi defense; he maintained that he was somewhere
other than the department store at the time of the robbery. Mr. Washington exhausted
his state post-conviction remedies before filing his § 2254 petition in the district
court. In this petition, Mr. Washington advanced eight separate arguments for the
proposition that his trial counsel had provided ineffective assistance. Only two are
relevant for this appeal. One is that his lawyer provided ineffective assistance by
neglecting to request a continuance to obtain a surveillance videotape from the
department store; the other is that the attorney provided ineffective assistance by
allowing an intern – a law student with a limited license to practice law, see
Mo. S. Ct. R. 13.01 – to present the bulk of the alibi defense. The district court
rejected these arguments, but later granted Mr. Washington's motion for a certificate
of appealability on these two issues.

                                            II.
       When reviewing a district court's denial of a § 2254 petition, we review
findings of fact for clear error and legal conclusions de novo. Evans v. Luebbers, 371
F.3d 438, 441 (8th Cir. 2004), cert. denied, 125 S. Ct. 902 (2005). A federal court
cannot grant habeas relief under § 2254 unless the state court's decision denying the
petitioner's claim "was contrary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court" or "was based on an
unreasonable determination of the facts." 28 U.S.C. § 2254(d).

       The sixth amendment (as applied to the states through the fourteenth
amendment, Gideon v. Wainwright, 372 U.S. 335, 342 (1963)) guarantees criminal
defendants the right to the effective assistance of counsel. U.S. Const. amend. VI;
Strickland v. Washington, 466 U.S. 668, 686 (1984). To establish ineffective

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assistance of counsel, a defendant ordinarily must show that "counsel's representation
fell below an objective standard of reasonableness," id. at 687-88, and that there was
prejudice, i.e., that there is "a reasonable probability that ... the result of the
proceeding would have been different" if counsel had performed adequately, id. at
694. A defendant need not demonstrate prejudice, however, if the circumstances
were "so likely to prejudice the accused that the cost of litigating their effect in a
particular case is unjustified." United States v. Cronic, 466 U.S. 648, 658-59 (1984).
Courts presume the existence of prejudice if the defendant was completely denied
defense counsel or if defense counsel "entirely fail[ed] to subject the prosecution's
case to meaningful adversarial testing." Id. at 659.

                                            III.
       Mr. Washington contends that his trial counsel provided ineffective assistance
by neglecting to move for a continuance in order to obtain a surveillance tape from
the department store that was robbed. The reference to a continuance is a diversion;
the gist of the argument is that the attorney should have procured the surveillance
tape. Mr. Washington does not have the tape, but insists that it "may have"
exculpated him had it been presented at trial. The district court decided that
Mr. Washington did not demonstrate ineffective assistance because he never proved
that the tape existed and a witness testified that the tape showed nothing relevant. For
the purposes of this opinion, we assume that there was a surveillance tape.

       A reasonable probability that the result of the proceeding would have been
different is a probability sufficient to undermine our confidence in the of the outcome
of the trial. Strickland, 466 U.S. at 694. A consideration of Mr. Washington's
arguments and an examination of this record leaves our confidence unshaken. First,
Mr. Washington does not have the tape to show us, so we cannot assess its content
for ourselves. Second, the only testimony regarding the content of the tape indicates
that the tape was either irrelevant or inculpatory. One person testified that the tape
did not show the site of the robbery at the time that it occurred. The other individual

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to testify about the content of the tape said that it showed Mr. Washington in the area
of the store where the robbery occurred – a difficulty for Mr. Washington given his
alibi defense. We have no reason to think that the tape would have helped
Mr. Washington's cause, and thus the district court did not err in ruling that the state
court did not unreasonably apply Supreme Court precedent by deciding that
Strickland did not entitle him to relief.

                                           IV.
       Mr. Washington also maintains that his lawyer provided ineffective assistance
by allowing a law-student intern to put on the bulk of the defense. The intern
presented Mr. Washington's case-in-chief, handling the direct and re-direct
examinations of the alibi witnesses. During the intern's presentation, the prosecutor
made a number of evidentiary objections, and the prosecutor, intern, and judge joined
in several sidebar conferences. Mr. Washington cites the objections and conferences
as evidence that his attorney inadequately prepared and supervised the intern. And,
Mr. Washington asserts, the difficulties with regard to the intern do not end there, for
his attorney failed to take over from the intern when Mr. Washington asked him to
do so. These facts implicate Cronic's per se rule of prejudice, Mr. Washington
argues, because it was as if the attorney "had been absent from the trial itself." But
even if Cronic's rule is inapplicable, he maintains, these facts evince prejudice under
Strickland (though he does not explain how). The district court decided that
Mr. Washington's attorney did not render ineffective assistance because the intern
ably put the alibi defense before the jury. (For purposes of this opinion only, we
assume, without holding, that Mr. Washington's attorney inadequately trained and
supervised the intern, and refused to take the lead when asked to do so.)

        We are not persuaded by Mr. Washington's arguments. We do not think that
these facts establish presumptive prejudice under Cronic. Mr. Washington was not
literally denied counsel, as his attorney was present throughout the entire trial. Also,
the prosecution's case was subject to adversarial testing: Mr. Washington's attorney

                                          -4-
presented opening and closing arguments, and the intern elicited testimony from two
witnesses to the effect that Mr. Washington was not at the department store at the
time of the robbery. These circumstances do not involve the sort of one-sidedness
that demands the application of Cronic's per se rule of prejudice. As for the
Strickland standard, we conclude that Mr. Washington has not demonstrated
prejudice: the intern's presentation was adequate in both substance and form.
Mr. Washington does not contend that the intern failed to introduce any evidence, and
after reviewing the transcript, we do not think that the intern's manner of presentation
was in any way prejudicially infirm. That being so, the state court did not
unreasonably apply Supreme Court precedent, and the district court did not err in
rejecting the claim.

                                   V.
     For the reasons indicated, we affirm the district court's denial of
Mr. Washington's § 2254 petition.
                     ______________________________




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