                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                 No. 03-56750
                Plaintiff-Appellee,          D.C. Nos.
               v.                        CV-02-00179-RT
CALVIN THOMAS,                            CR-96-00006-RT
             Defendant-Appellant.
                                            OPINION

       Appeal from the United States District Court
          for the Central District of California
        Robert J. Timlin, District Judge, Presiding

                  Argued and Submitted
            June 7, 2005—Pasadena, California

                   Filed August 3, 2005

     Before: Betty B. Fletcher, Pamela Ann Rymer, and
            Raymond C. Fisher, Circuit Judges.

                Opinion by Judge Rymer;
             Concurrence by Judge B. Fletcher




                           9077
9080               UNITED STATES v. THOMAS


                          COUNSEL

Gary P. Burcham, San Diego, California, for defendant-
appellant Calvin Thomas.

Alka Sagar, Assistant United States Attorney, Los Angeles,
California, for plaintiff-appellee the United States.


                          OPINION

RYMER, Circuit Judge:

   Calvin Thomas appeals the denial of his 28 U.S.C. § 2255
motion to vacate, set aside, or correct his federal criminal con-
victions for bank robbery, Hobbs Act robbery, assault on a
federal officer, and gun charges in connection with these
offenses. The issue is whether prejudice should be presumed
under United States v. Cronic, 466 U.S. 648 (1984), on
account of trial counsel’s concession of Thomas’s guilt on the
Hobbs Act robbery charge without consulting Thomas or
obtaining his consent, or instead must be proved under Strick-
land v. Washington, 466 U.S. 668 (1984). The district court
found that counsel’s statements were part of a trial strategy to
make his challenge to other charges more credible, and did
not constitute abandonment. It held that Strickland, rather
                   UNITED STATES v. THOMAS                  9081
than Cronic, applies, and concluded that Thomas had made no
showing of a reasonable probability that the outcome of the
trial would have been different absent counsel’s statements to
the jury. We agree, and affirm.

                                I

   Two robberies occurred on consecutive days in February
1996, the first of United California Savings Bank in River-
side, and the second of a United Parcel Service (UPS) office
in Riverside. Three African-American males driving a blue
Suzuki Samurai were involved in both. FBI Agent Mark
Enyeart happened to be driving by the UPS office when the
three men emerged from robbing that facility; he saw them,
thought they looked suspicious, and followed the Suzuki. The
robber in the back opened the rear flap and fired shots at
Enyeart. A high speed chase ended up at the house of Cynthia
Wright, an acquaintance of Thomas. Eventually the robbers
were driven out of the house, and were identified as Thomas,
Zelos Fields, and Reginald Paris. They left behind a 9-
millimeter pistol and $800 inside a sock. Forensic testing
matched the gun with shell casings found on the street where
the shots were fired at Enyeart.

   Indictments were returned against Thomas, Fields and
Paris. Paris pled guilty and agreed to testify against Thomas
and Fields, who were tried together. In his opening statement
as well as in closing argument, Thomas’s counsel, John
Aquilina, indicated that he was not contesting Thomas’s par-
ticipation in the UPS robbery. Although Aquilina recalls hav-
ing told Thomas that he intended to focus on the other
charges, he does not remember consulting with Thomas or
obtaining his consent to concede.

   At trial, Paris testified that he drove a blue Suzuki Samurai
to pick up Fields and Thomas before both robberies. Thomas
showed him the 9-millimeter pistol, which Fields gave Paris
to use to control people inside the facilities. A customer at the
9082               UNITED STATES v. THOMAS
bank identified Thomas as one of the robbers who jumped
over the counter to get money from the tellers, and a
bystander also identified him and Fields, describing Thomas
accurately as shorter and lighter-skinned. After leaving the
UPS office, Thomas dropped some of the money, which he
bent down to pick up. Paris testified that Thomas sat in the
front seat of the Suzuki and Fields in the back. A UPS cus-
tomer identified Thomas as one of the robbers; a bystander
testified that the man who was noticeably shorter and younger
looking than the other two, with shorter hair, got into the back
and was looking down the street as the Suzuki drove off. This
description matches Thomas’s appearance.

   Enyeart testified that Paris got in the driver’s side while
Fields held the door open for Thomas, who had reached down
to pick something up before getting into the rear seat. Enyeart
identified Thomas as the one who fired at him. The agent fol-
lowed the Suzuki to Wright’s apartment. After the three sur-
rendered, Wright identified Thomas and Fields.

  The jury found Thomas guilty on all six counts. He
appealed both his conviction and sentence. We affirmed the
conviction, but remanded for resentencing which we later
upheld.

   Thomas then filed a § 2255 motion pressing the ineffective
assistance of counsel claim that he pursues on appeal. The
district court held an evidentiary hearing at which Thomas
and Aquilina testified. The court found that Aquilina’s con-
duct was not per se prejudicial, his statements were part of a
trial strategy to enhance the effectiveness of his arguments on
the bank robbery and firearms charges, and that regardless,
there is no reasonable probability that the outcome of the trial
would have been different given the substantial evidence from
law enforcement witnesses, civilian witnesses, and Thomas’s
coconspirator about his involvement in the UPS robbery.

  Thomas has timely appealed.
                       UNITED STATES v. THOMAS                         9083
                                     II

                                     A

   [1] Ineffective assistance of counsel claims are governed by
the familiar, two-part test of Strickland under which a defen-
dant must show that counsel’s representation fell below an
objective standard of reasonableness, and that any deficien-
cies in counsel’s performance were prejudicial. Strickland,
466 U.S. at 688, 690, 692. Both deficient performance and
prejudice are required before it can be said that a conviction
(or sentence) “resulted from a breakdown in the adversary
process that render[ed] the result [of the proceeding] unreli-
able” and thus in violation of the Sixth Amendment. Id. at
687.

   [2] In this case, we assume that counsel’s concession of
guilt without consultation or consent is deficient.1 See Florida
v. Nixon, 125 S. Ct. 551, 560, 561 (2004) (observing that
“[a]n attorney undoubtedly has a duty to consult with the cli-
ent regarding ‘important decisions,’ including questions of
overarching defense strategy,” and that counsel was obliged
to explain proposed trial strategy to the defendant) (quoting
Strickland, 466 U.S. at 688); Strickland, 466 U.S. at 688 (not-
ing counsel’s duty to consult with the defendant on important
decisions). The question is whether Thomas was prejudiced,
presumptively or actually.

   [3] To prevail on Strickland’s prejudice prong, there must
be “a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
  1
    As Strickland instructs, “a court need not determine whether counsel’s
performance was deficient before examining the prejudice suffered by the
defendant as a result of the alleged deficiencies. The object of an ineffec-
tiveness claim is not to grade counsel’s performance. If it is easier to dis-
pose of an ineffectiveness claim on the ground of lack of sufficient
prejudice, which we expect will often be so, that course should be fol-
lowed.” 466 U.S. at 697.
9084                     UNITED STATES v. THOMAS
different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. at 694. Ordinar-
ily prejudice must be proved, but it is presumed in limited cir-
cumstances that are “so likely to prejudice the accused that
the cost of litigating their effect in a particular case is unjusti-
fied.” See Cronic, 466 U.S. at 658; Strickland, 466 U.S. at
692. Cronic identified several such situations, including if
“counsel entirely fails to subject the prosecution’s case to
meaningful adversarial testing.” Cronic, 466 U.S. at 659.
Thomas argues that this is such a case because Aquilina’s
concession of guilt was a completely unreasonable tactic that
resulted in an actual breakdown in the adversarial process.

   [4] The Supreme Court has twice revisited Cronic in ways
that shed light on Thomas’s claim. First, in Bell v. Cone, 535
U.S. 685, 697 (2002), the Court emphasized that Cronic’s
exception for failing to test the prosecution’s case applies
when the attorney’s failure to oppose the prosecution goes to
the proceeding as a whole — not when the failure occurs only
at specific points in the trial.2 Then, in Florida v. Nixon, the
Court considered a situation very similar to Thomas’s.
Nixon’s counsel made a strategic decision to concede Nixon’s
commission of murder in the guilt phase of a capital case, and
to concentrate the defense on saving Nixon’s life in the pen-
alty phase. There was overwhelming evidence that Nixon had
  2
   The Court elaborated:
      When we spoke in Cronic of the possibility of presuming preju-
      dice based on an attorney’s failure to test the prosecutor’s case,
      we indicated that the attorney’s failure must be complete. We
      said “if counsel entirely fails to subject the prosecution’s case to
      meaningful adversarial testing.” Cronic, supra, at 659, 104 S. Ct.
      2039 (emphasis added). Here, respondent’s argument is not that
      his counsel failed to oppose the prosecution throughout the sen-
      tencing proceeding as a whole, but that his counsel failed to do
      so at specific points. For purposes of distinguishing between the
      rule of Strickland and that of Cronic, this difference is not of
      degree but of kind.
535 U.S. at 696-97
                    UNITED STATES v. THOMAS                  9085
committed the murder. Counsel tried to explain his strategy to
Nixon, but Nixon was unresponsive and neither approved nor
disapproved it. The Florida Supreme Court thought that coun-
sel’s concession was the “ ‘functional equivalent of a guilty
plea’ in that it allowed the prosecution’s guilt-phase case to
proceed essentially without opposition,” and thus held that it
made counsel’s performance presumptively inadequate with-
out the defendant’s affirmative acceptance. Nixon, 125 S. Ct.
at 559 (quoting Nixon v. Singletary, 758 So.2d 618, 622-24
(Fla. 2000)). The United States Supreme Court disagreed with
the premise that counsel’s trial concession was the same as a
guilty plea. It explained that despite counsel’s concession,
Nixon still had the rights to which he was entitled at trial —
to have the prosecution prove the elements of the offense
beyond a reasonable doubt by competent, admissible evi-
dence; to cross-examine witnesses; to exclude prejudicial evi-
dence; and to appeal evidentiary or instructional errors. Id. at
560-61. Having determined that counsel’s concession strategy
was not the functional equivalent of a guilty plea, the Court
held that the Florida court’s contrary conclusion led it mis-
takenly to apply the presumption of prejudice that Cronic “re-
served for situations in which counsel has entirely failed to
function as the client’s advocate.” Id. at 561.

   [5] Thomas argues that Nixon is distinguishable based on
the Court’s statement that “[a]lthough such a concession [of
guilt] in a run-of-the-mine trial might present a closer ques-
tion, the gravity of the potential sentence in a capital trial and
the proceeding’s two-phase structure vitally affect counsel’s
strategic calculus.” Id. at 562. He points out that in this case
there was no bifurcated sentencing scheme and no affirmative
defenses or lesser-included offenses. While true, Thomas’s
counsel nevertheless faced problems similar to Nixon’s. There
was overwhelming evidence that Thomas participated in the
UPS robbery — he was, in effect, caught red-handed — and
counsel, defending Thomas against not one but six charges,
9086                  UNITED STATES v. THOMAS
saw a need to concentrate the defense on those counts that
carried the stiffest penalties.3

   [6] Thomas also relies on our opinion in United States v.
Swanson, 943 F.2d 1070 (9th Cir. 1991), which was a bank
robbery case in which counsel argued that the evidence
against the defendant was overwhelming and that he was not
going to insult the jurors’ intelligence by trying to raise a rea-
sonable doubt about whether Swanson had perpetrated the
robbery or whether intimidation was proved. Id. at 1071,
1074. There, we applied Cronic because counsel’s concession
concerned the only factual issues in dispute on the only count
that was charged. Id. at 1074. The government had also failed
to identify any strategy that could justify counsel’s betrayal of
his client. Id. at 1075. Unlike Swanson, Thomas was tried on
multiple counts, and counsel decided to focus on the charges
on which Thomas had a chance. As we recognized in Swan-
son, “in some cases a trial attorney may find it advantageous
to his client’s interests to concede certain elements of an
offense or his guilt of one of several charges.” Id. at 1075-76;
see also Anderson v. Calderon, 232 F.3d 1053, 1087-90 (9th
Cir. 2000) (holding that Swanson and Cronic’s presumption
of prejudice does not apply where trial counsel conceded that
defendant murdered the victim but asked the jury to convict
him of first-degree murder rather than felony murder in order
to avoid eligibility for the death penalty), overruled on other
grounds by Osband v. Woodford, 290 F.3d 1036 (9th Cir.
2002); United States v. Holman, 314 F.3d 837, 839 n.1, 840-
41 (7th Cir. 2002) (holding that trial counsel’s concession of
defendant’s guilt to one of several charges in order to enhance
his credibility in arguing against conviction on other charges
is a reasonable trial strategy and not susceptible to Cronic’s
  3
   The firearms charges carried mandatory consecutive sentences of five
years, twenty years and twenty years. Thomas was in fact sentenced to 60
months on one of the firearms counts and to 240 months each on the other
two, to be served consecutively to one another and to the sentence on the
remaining counts.
                       UNITED STATES v. THOMAS                         9087
presumed prejudice analysis). As the district court found, this
is such a case.

   [7] In sum, there is no suggestion that Aquilina did not
fully and carefully prepare Thomas’s defense. He had a sensi-
ble reason for not contesting Thomas’s participation in the
UPS robbery: it was, for all practical purposes, incontestible,
and he believed that doing so would enhance his credibility on
counts where the evidence was somewhat less clear and the
penalties significantly greater.4 Given the multiple charges
that Thomas faced, Aquilina could rationally decide to focus
on the charges that were more defensible and consequential.
Aquilina’s concession was not the functional equivalent of a
guilty plea, nor did it abandon all meaningful adversarial test-
ing of the prosecution’s case, such that it would be Cronic
error. His failure to consult and obtain consent in and of itself
does not render Aquilina’s strategic decision presumptively
prejudicial. The government was put to its burden of proving
Thomas’s guilt beyond a reasonable doubt on all charges, and
counsel by no means entirely failed to serve as his advocate.
Accordingly, counsel’s conduct is subject to Strickland’s per-
formance and prejudice requirements.
  4
    Thomas suggests in reply that there was no practical advantage to be
gained by conceding guilt as to the UPS robbery because the government
pursued an aiding and abetting theory at trial. However, mere participation
in the UPS robbery would not be sufficient to sustain a conviction on the
count charging assault on a federal officer, or on the § 924(c) counts,
which require proof that the defendant, in addition to being a participant,
used or aided and abetted the use or carrying of a firearm. See, e.g., United
States v. Bancalari, 110 F.3d 1425, 1429-30 (9th Cir. 1997) (holding that
to be guilty of aiding and abetting under § 924(c), the defendant must have
directly facilitated or encouraged use of the firearm; “mere presence at the
scene of the crime and knowledge that the crime is being committed is not
enough”). Thomas was charged with aiding and abetting each of the fire-
arms crimes, not with aiding and abetting the robberies.
9088               UNITED STATES v. THOMAS
                              B

   Thomas argues that even if Strickland applies, his counsel’s
performance was prejudicial for two reasons. First, he main-
tains there was conflict among witnesses other than Enyeart
and Paris as to whether Thomas was present during the UPS
robbery. Any such conflict is immaterial, however, given
Enyeart’s testimony that he followed Thomas (whom he iden-
tified as the robber who got into the rear of the blue Suzuki)
to Wright’s apartment, from which Thomas subsequently
emerged with the other two robbers.

   [8] Second, Thomas suggests that Aquilina’s concession
that he participated in the UPS robbery effectively conceded
his participation in both robberies given percipient witness
testimony that each robbery was perpetrated by black males
and Paris’s testimony that the same two persons accompanied
him during both robberies. Paris was severely impeached,
however, and there was inconsistency among the witnesses as
to how many robbers were present at the UPS office and who
was present at the bank. In any event, there is no reasonable
probability that, had Aquilina not failed to contest Thomas’s
participation in the UPS robbery, the jury would not have
convicted him of the remaining charges. Witnesses testified
that Thomas stood out from the other two bank robbers
because he was noticeably shorter and had lighter skin and
shorter hair; Enyeart testified that Thomas was the UPS rob-
ber who shot at him; and there was evidence that Thomas
handed Paris the firearm that Paris carried in both robberies,
thus aiding and abetting its use. Accordingly, Thomas has not
shown a reasonable probability that, but for counsel’s unpro-
fessional errors, the result of the proceeding would have been
different.

                              III

  Thomas also asks us to certify as an issue for appeal
whether Aquilina’s concession of guilt to the UPS robbery
                    UNITED STATES v. THOMAS                   9089
denied him due process in violation of Boykin v. Alabama,
395 U.S. 238 (1969). We decline to do so, as he cannot make
a substantial showing of the denial of a constitutional right
given Nixon. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel,
529 U.S. 473, 483-84 (2000).

  AFFIRMED.



B. FLETCHER, Circuit Judge, with whom FISHER, Circuit
Judge, joins, concurring:

   Our affirmance of Thomas’s conviction should not be read
as condoning his attorney’s conduct in this case. On the con-
trary, Thomas’s attorney abdicated one of defense counsel’s
most basic responsibilities: to consult with his client about
important decisions relating to the representation. See Florida
v. Nixon, 125 S. Ct. 551, 560 (2004); Strickland v. Washing-
ton, 466 U.S. 668, 688 (1984).

   While a carefully tailored concession can be a shrewd trial
tactic in certain cases, it is entirely inappropriate for an attor-
ney to make such a concession without prior discussion with
the client. Consultation is vital not only to inform the client
about his lawyer’s proposed course of action, but also (more
importantly) to provide the defendant with an opportunity to
object to any contemplated concessions. In the ordinary repre-
sentation, an attorney should obtain his client’s express con-
sent to a strategy conceding guilt (or any essential element
thereof) on any charge or charges; in the unusual circum-
stance where consent is not possible (as in Nixon, where the
defendant exhibited “constant resistance to answering inqui-
ries put to him by counsel and court”), the attorney must at
least consult the client in advance in order for the representa-
tion to satisfy the constitutional baseline of adequate advo-
cacy. See Nixon, 125 S. Ct. at 561.
9090                UNITED STATES v. THOMAS
   For purposes of evaluating Strickland’s incompetence-of-
counsel prong, we therefore must draw a firm line that any
counsel who makes concessions of guilt not previously dis-
cussed with the client is incompetent. It is deficient perfor-
mance for an attorney to concede his client’s guilt without
prior consultation with the client, even where the concession
relates to one charge out of several, and even where evidence
of guilt is strong.

   Because Thomas has not satisfied the prejudice prong of
the Strickland test, relief here is foreclosed. Nonetheless, it is
worth noting that, like Nixon’s attorney, counsel for Thomas
“was obliged to . . . explain his proposed trial strategy” to his
client, 125 S. Ct. at 561; having failed to do so, the lawyer
performed deficiently. With this understanding, I concur in
Judge Rymer’s opinion affirming the judgment.
