     Case: 11-50420      Document: 00512220498         Page: 1     Date Filed: 04/25/2013




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

                                                                           FILED
                                                                          April 25, 2013

                                      No. 11-50420                        Lyle W. Cayce
                                                                               Clerk

RODOLFO CIPRIANO GOMEZ,

                                                 Petitioner-Appellant,
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee.



                 Appeal from the United States District Court for
                           the Western District of Texas
                              USDC No. 5:10-CV-344


Before STEWART, Chief Judge, and GARZA and ELROD, Circuit Judges.
PER CURIAM*:
       Petitioner-Appellant Rodolfo Cipriano Gomez (“Gomez”) appeals the
district court’s denial of his habeas petition under 28 U.S.C. § 2254. This court
granted a certificate of appealability (“COA”) under 28 U.S.C. § 2253(c)(2) on the
issue of whether the state court’s denial of Gomez’s claim that he was denied
counsel during a critical stage of his criminal proceeding was an unreasonable
application of United States v. Cronic, 466 U.S. 648 (1984). We AFFIRM.



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                      I. FACTS
      During pretrial proceedings, Gomez filed a motion to suppress the search
warrant that led to his arrest. Gomez argued that the affiant for the warrant
was untruthful in stating that there was a confidential informant (“CI”) who had
made controlled purchases of heroin at Gomez’s residence. Gomez further
argued that, even if there was a CI, the affiant did not establish that the CI was
reliable and trustworthy or that the CI previously had worked for the police.
      Gomez and his siblings were represented by separate attorneys at a joint
suppression hearing on February 6, 2003. During the hearing, the following
witnesses testified: Detective Juan Guerrero, the affiant for the search warrant;
Judge Brenda Chapman, the judge who issued the warrant; and Officer Enrique
Sanchez, an investigator who worked on Gomez’s case. Detective Guerrero
testified that, according to an incident report, the CI bought heroin from Gomez.
      After closing statements, the trial court advised the parties that they
should return to court on February 10th, with written briefs addressing certain
issues raised during the hearing and that they would have “an opportunity to
talk” before the court ruled on the motion. Gomez’s counsel, Glen Peterson,
advised the trial court that he would be out of town on February 10th but that
he could have his brief delivered to the other defense counsel who would be
present at the hearing. The trial court advised Peterson that his presence was
not required because it was not “[Gomez’s] case [they] will be trying” and other
counsel could “adequately carry the ball on argument.” Peterson advised the
trial court that he might have substitute counsel present on February 10th “just
to be safe.”
      On February 10th, the trial court stated that it was continuing the Franks
hearing.1 Peterson was absent from the hearing; however, counsel for Gomez’s

      1
        See Franks v. Delaware, 438 U.S. 154, 171 (1978) (holding that a defendant can
challenge an affidavit supporting a search warrant if the defendant shows allegations that
were deliberately false or made with a reckless disregard for the truth and that such

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                                    No. 11-50420

sister, and Gomez’s brother–Arnaldo Gomez (“Arnaldo”) were present. The trial
court noted that it was unsure how to address Peterson’s absence but would
“deal with that when that [came] up.” At this hearing, Officer Adam Pastrano,
a criminal investigator who was involved with the case, testified that on
December 12, 2001, he witnessed the CI make contact with Arnaldo, at the
residence. Officer Pastrano acknowledged that, although he did not personally
witness a transfer of heroin, the CI later informed him that he purchased heroin
from Arnaldo. Officer Pastrano acknowledged in his testimony, however, that
a written report by Detective Guerrero had identified Gomez as the person who
sold heroin to the CI during that controlled buy, not Arnaldo. Nevertheless, the
motion to suppress was overruled.
      On February 13th, another hearing was held on Gomez’s motion to
suppress. Again, Peterson was not present, but counsel for Arnaldo was present
when testimony from the CI was taken. The CI testified that he was searched
prior to making the controlled buys of heroin from the defendants and that he
recalled making one of the purchases from Arnaldo. He denied telling counsel
the day before the continued hearing that he did not purchase anything from
Arnaldo and Gomez. The trial court reaffirmed its denial of the motion to
suppress.
      Following a jury trial in 2005, Gomez was convicted of engaging in
organized criminal activity. After finding that Gomez had used firearms to
facilitate the activity, the trial judge sentenced him to 60 years in prison. The
Court of Appeals for the Third District of Texas affirmed his conviction. The
Texas Court of Criminal Appeals denied his petition for discretionary review.
      In his state habeas petition Gomez argued, inter alia, that he was denied
counsel during a “critical stage” of his criminal proceeding. Cronic, 466 U.S. at
658-62. Specifically, Gomez claimed that the trial court abused its discretion in


statements were necessary in supporting the probable cause determination).

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holding two continued hearings on his motion to suppress when he had no
counsel present. The Texas Department of Criminal Justice (the “Department”)
did not answer the petition and the state trial court did not make any
recommendations regarding the petition. The Texas Court of Criminal Appeals
denied the petition without a written order on February 10, 2010. After
exhausting his state remedies, Gomez filed a federal habeas petition under 28
U.S.C. § 2254.
      The magistrate judge recommended denying Gomez’s § 2254 petition. The
magistrate judge acknowledged that Gomez was arguing that he was denied
counsel in violation of Cronic because his counsel was absent at what he alleged
was a “critical stage” of his proceeding. Cronic, 466 U.S. at 658-62. The State
argued that Gomez’s counsel was “merely absent from a small portion of the
proceedings at which his presence was not necessary,” and that Cronic was
inapplicable.    Id.   Adopting the State’s argument, the magistrate judge
concluded that, because Gomez’s conclusory arguments failed to demonstrate
ineffectiveness or prejudice, as required by Strickland v. Washington, 466 U.S.
668 (1984), Gomez had not shown that the state court’s denial of his claim
constituted either an unreasonable determination of the facts or an
unreasonable application of federal law as determined by the Supreme Court.
The district court adopted the magistrate’s recommendation and denied Gomez’s
§ 2254 petition and motion for COA.
      In the instant § 2254 petition, Gomez argues, inter alia, that he was
denied counsel in violation of Cronic and that the trial court abused its
discretion by taking evidence against him and by denying his suppression motion
without first asking whether he wished to waive his right to counsel. Because
the district court’s resolution of Gomez’s Cronic claim was debatable, this court
granted a COA in part with respect to that claim. See Gomez v. Thaler, No. 11-
50420 (5th Cir. filed Nov. 8, 2011) (order granting COA).


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                            II. Standard of Review
      In an appeal from the denial of habeas relief, this court reviews the district
court’s conclusions de novo and its findings of fact for clear error. Austin v. Cain,
660 F.3d 880, 884 (5th Cir. 2011), cert. denied, 132 S. Ct. 1914 (2012). Our
inquiry in this case is limited to the highly deferential review standard afforded
to state court adjudications under the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254. See Hearn v. Thaler, 669 F.3d 265, 271 (5th
Cir. 2012) (“AEDPA thus imposes a highly deferential standard for evaluating
state-court rulings, and demands that state-court decisions be given the benefit
of the doubt.” (internal quotation marks and citation omitted)). Under AEDPA,
a federal court may not grant habeas relief on a claim that was adjudicated on
the merits by a state court unless the state court decision: (1) “was contrary to,
or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court,” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254 (d)(1). “Clearly established Federal law” refers
to holdings of the Supreme Court at the time of the state court’s decision. See
Williams v. Taylor, 529 U.S. 362, 412 (2000). Factual findings by the state court
“are presumed to be correct, and a petitioner has the burden of rebutting this
presumption with clear and convincing evidence.” Brown v. Dretke, 419 F.3d
365, 371 (5th Cir. 2005) (citing 28 U.S.C. § 2254(e)(1)).
      A state court decision involves an unreasonable application of federal law
if it “correctly identifies the governing legal rule but applies it unreasonably to
the facts of a particular prisoner’s case.” Fields v. Thaler, 588 F.3d 270, 273 (5th
Cir. 2009) (quoting Williams, 529 U.S. at 407-08). In evaluating whether a state
court’s application of a rule was unreasonable, the specificity of the rule must be
considered. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). “The more
general the rule, the more leeway courts have in reaching outcomes in case-by-


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case determinations.” Id. An unreasonable application of law differs from an
incorrect application; thus, a federal habeas court may correct what it finds to
be an incorrect application of law only if this application is also objectively
unreasonable. See Williams, 529 U.S. at 409-11. “A state court’s determination
that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision.”
Harrington v. Richter, 131 S. Ct. 770, 786 (2011) (citation omitted). “[E]ven a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Id. The Supreme Court has noted that “this standard is difficult
to meet . . . because it was meant to be.” Id.
                              III. DISCUSSION
      On appeal, Gomez argues that his counsel’s absence from the continued
hearings on his motion to suppress constituted a denial of counsel during a
“critical stage” of his criminal proceedings as contemplated by Cronic, because
a suppression hearing is outcome-determinative in a criminal proceeding. See
Cronic, 466 U.S. at 658-62. Gomez submits that the continued hearings related
to his motion to suppress constituted a “critical stage” of his proceedings because
evidence obtained pursuant to the search warrant implicated him in the drug
conspiracy. Consequently, Gomez asserts that his counsel’s absence was a
“procedural structural defect” in the proceedings warranting reversal of his
conviction.
      The Department argues that even if AEDPA standards are inapplicable,
Gomez was not denied counsel during the continued hearings on his motion to
suppress because: (1) his counsel’s absence was voluntary and not caused by the
trial court; (2) there were other attorneys present to represent Gomez’s interests;
(3) the nature of the testimony introduced at the hearings was cumulative to
testimony offered during the initial hearing when counsel was present; (4) any
prejudice was cured by counsel’s filing of a written brief in support of the motion


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                                  No. 11-50420

to suppress and by trial counsel’s lodging of objections during the trial; and (5)
the motion to suppress was without merit. Additionally, the Department
concludes that the alleged denial of counsel was not “of such significance that it
[made] the adversary process itself unreliable” because Gomez was not
completely denied counsel and the supplemental hearings on the motion to
suppress were not a critical stage of the trial. See United States v. Russell, 205
F.3d 768, 771 (5th Cir. 2000). In the alternative, the Department argues that,
if there was a denial of counsel, the violation was harmless error.            See
Satterwhite v. Texas, 486 U.S. 249, 257 (1988).
      The Department also emphasizes that the requirements of Cronic are
general and that, under AEDPA, this court should not conclude that the state
court’s ruling was an unreasonable application of federal law. The Department
further argues that, because this court would have to fashion a “new rule” under
Cronic to grant relief in this case, any relief contemplated by this court would be
barred by Teague v. Lane, 489 U.S. 288, 301 (1989). In his reply brief, Gomez
responds that the harmless error standard of review does not apply to his Cronic
claim.
      In Cronic, the Supreme Court recognized that a defendant might be denied
counsel even though an attorney had been appointed to represent him if, inter
alia, the defendant was denied counsel at a “critical stage” of his criminal
proceedings. Cronic, 466 U.S. at 658-62. “Cronic instructed that a presumption
of prejudice would be in order in ‘circumstances that are so likely to prejudice
the accused that the cost of litigating their effect in a particular case is
unjustified.’” Florida v. Nixon, 543 U.S. 175, 190 (2004) (internal citation
omitted). Thus, Cronic “recognized a narrow exception to Strickland’s holding
that a defendant who asserts ineffective assistance of counsel must demonstrate
not only that his attorney’s performance was deficient, but also that the
deficiency prejudiced the defense.” Id.

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       The case sub judice presents the sole question of whether the state court’s
denial of Gomez’s habeas claim that he was denied counsel during a “critical
stage” of his criminal proceeding was an unreasonable application of Cronic.
Our consideration of this issue requires us to review the Supreme Court’s
holdings to determine what is deemed to be a “critical stage” of a criminal
proceeding under “clearly established federal law.”2 See Williams, 529 U.S. at
412 (stating “clearly established Federal law” refers to holdings of the Supreme
Court at the time of the state court’s decision).
       In evaluating Gomez’s petition, we conclude that no Supreme Court
precedent has directly addressed the issue of whether the denial of counsel at a
hearing on a motion to suppress is a “complete denial of counsel” at a “critical
stage” of a criminal proceeding for the purposes of the Sixth Amendment.
Because no decision of the Supreme Court has addressed the issue presented
before us, “it cannot be said that the state court ‘[unreasonably applied] clearly
established Federal law.’”3 Wright v. Van Patten, 552 U.S. 120, 126 (2008)


       2
         In prior decisions, the Supreme Court has specifically enumerated a “critical stage”
of a criminal proceeding for Sixth Amendment purposes. Among the stages of a criminal
proceeding that the Court has deemed to be a “critical stage” are arraignments, Hamilton
v. Alabama, 368 U.S. 52, 54 (1961); post-indictment interrogations, Massiah v. United States,
377 U.S. 201, 205-06 (1964); post-indictment identification lineups, United States v. Wade,
388 U.S. 218, 236-37 (1967); entry of a guilty plea, whether to a misdemeanor or a felony,
Argersinger v. Hamlin, 407 U.S. 25, 34 (1972); closing summation, Herring v. New York, 422
U.S. 853, 858 (1975); overnight recess between direct and cross-examination of a defendant,
Geders v. United States, 425 U.S. 80, 91 (1976); and court-ordered psychiatric examinations
to determine competency to stand trial and future dangerousness, Estelle v. Smith, 451 U.S.
454, 470 (1981).
       3
         In a direct appeal context, Gomez would have a compelling argument that a
suppression hearing is a “critical stage” of a criminal proceeding under Cronic. However,
because he presents this issue in a habeas context, AEDPA’s limited standard of review
constrains us to the question of whether the state court’s ruling was an “unreasonable
application of [] clearly established Federal law as determined by the Supreme Court.” 28
U.S.C. § 2254 (d)(1) (emphasis added). While some of our sister circuits provide persuasive
authority that a pretrial suppression hearing is a “critical stage” of the proceedings, those
decisions either predated AEDPA’s April 24, 1996 enactment date or addressed the question
on direct appeal. See 28 U.S.C. § 2254 (stating the effective date of AEDPA is April 24,

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(alterations in original) (citing Carey v. Musladin, 549 U.S. 70, 77 (2006)).
Moreover, because we find that the state court did not unreasonably apply
clearly established federal law, we need not consider the Department’s
remaining arguments on appeal.
                                  IV. CONCLUSION
       Finding no error, we AFFIRM the district court’s denial of Gomez’s habeas
petition.




1996); United States ex rel. Thomas v. O’Leary, 856 F.2d 1011, 1016-17 (7th Cir. 1988)
(determining that counsel’s failure to file a responsive brief in the State’s appeal from the
grant of a pretrial motion to suppress constituted absence of counsel during a “critical
stage”); Henderson v. Frank, 155 F.3d 159, 163, 166 (3d Cir. 1998) (noting that pre-AEDPA
habeas statute applied because habeas petition was filed before AEDPA’s effective date and
stating that a suppression hearing is a “critical stage”); United States v. Hamilton, 391 F.3d
1066, 1070 (9th Cir. 2004) (deciding on direct appeal that a pretrial motion to suppress
evidence constitutes a “critical stage” of the proceeding). As the Supreme Court has not
expressly held that a suppression hearing is a “critical stage” of a criminal proceeding,
however, this fact ends our inquiry with respect to Gomez’s petition. See Marshall v.
Rodgers, 133 S. Ct. 1446, 1451 (2013) (per curiam) (“[Circuit courts] may not canvass circuit
decisions to determine whether a particular rule of law is so widely accepted among the
Federal Circuits that it would, if presented to this Court, be accepted as correct.”).

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