                                                                            FILED
                           NOT FOR PUBLICATION                               MAR 23 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KENNETH WORKMAN,                                 No. 14-35854

              Petitioner - Appellant,            D.C. No. 1:08-cv-00052-EJL

 v.
                                                 MEMORANDUM*
RANDY BLADES, Warden and
LAWRENCE WASDEN,

              Respondents - Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                       Argued and Submitted March 10, 2016
                                Portland, Oregon

Before: FISHER, BERZON, and WATFORD, Circuit Judges.

      Petitioner Kenneth Workman appeals the district court’s denial of his

petition for a writ of habeas corpus. Workman argues that his trial counsel’s

performance during his sentencing hearing was so deficient as to warrant a




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
presumption of prejudice under United States v. Cronic, 466 U.S. 648 (1984). We

affirm.

      1. Workman’s Cronic claim is properly before us. This court issued a

certificate of appealability (“COA”) limited to the issue “whether counsel rendered

ineffective assistance at sentencing, including whether this claim is procedurally

defaulted.” See 28 U.S.C. § 2253(c). Because a Cronic claim requires a showing

that counsel rendered ineffective assistance, Workman’s claim falls within the

scope of the COA.

      2. Because the Idaho Supreme Court rejected Workman’s Cronic claim on

the merits, under the Antiterrorism and Effective Death Penalty Act he can prevail

only if he can show that the adjudication “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.”1 28 U.S.C. § 2254(d)(1).

      In Cronic, the Supreme Court fashioned an exception to the prejudice

requirement in Strickland v. Washington, 466 U.S. 668, 687 (1984). Under Cronic,

prejudice may be presumed when “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.” 466 U.S. at 659. Before a

      1
        Workman makes no argument that the state court decision 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)(2).

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court may “presum[e] prejudice based on an attorney’s failure to test the

prosecutor’s case . . . the attorney’s failure must be complete.” Bell v. Cone, 535

U.S. 685, 697 (2002).

      The Idaho Supreme Court concluded that Workman’s counsel’s “actions

d[id] not constitute an entire failure to subject the prosecution’s case to meaningful

testing.” Workman v. State, 144 Idaho 518, 526 (2007). Because the court applied

the correct standard as set forth in Cronic and Bell, its decision was not “contrary

to” clearly established Supreme Court precedent. See Early v. Packer, 537 U.S. 3,

8 (2002).

      Nor did the court’s decision involve an “unreasonable application” of these

precedents. While Workman’s attorney did very little to advance his client’s

interests, he did stress Workman’s contrition, emphasize that Workman had always

intended to cooperate by pleading guilty, and ultimately ask the court for “some

sort of mercy.” It is true that counsel repeatedly qualified all of his statements by,

for example, saying that they “sound empty,” but his qualifiers were plausibly

consistent with a strategy of displaying contrition and forthrightness about the

seriousness of the crime as a way of appealing for mercy.

      A reasonable jurist could conclude, as the Idaho Supreme Court did in this

case, that this amounted to some advocacy on behalf of Workman, falling short of


                                           3
the total abandonment contemplated in Bell and Cronic. The court’s decision was

not “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011). We therefore

affirm the district court’s denial of Workman’s petition for a writ of habeas corpus.

      AFFIRMED.




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