Criminal Practice – Defense Lawyer Naps Led to Habeas Relief

U.S. v. Ragin (Lawyers Weekly No. 001-051-16, 31 pp.) (Gregory, J.) No. 14-7245, March 11, 2016; USDC at Charlotte, N.C. (Conrad, J.) 4th Cir.

Holding: In a case of first impression for the 4th Circuit, the court holds that a defendant’s right to effective assistance of counsel is violated when his lawyer sleeps during a substantial portion of defendant’s trial, even without pointing to specific legal errors or omissions indicating incompetent representation; the denial of post-conviction relief under 28 U.S.C. § 2255 is reversed and the case remanded.

The problem is, when counsel is sleeping, a defendant has no legal assistance. Here, the evidence is not disputed; it demonstrates that counsel was asleep for much of defendant’s trial. As one witness testified, counsel was asleep “frequently,” “almost every day … morning and evening” for “30 minutes at least” at a time. These circumstances suggest a breakdown in the adversarial process that our system counts on to produce just results, and from which we must presume prejudice to defendant.

Defendant and six codefendants were charged in 2004 with conspiracy and other substantive offenses related to their involvement in prostitution and drug rings. Ultimately, defendant was convicted of two counts: conspiracy to commit offenses against the U.S., including interstate transportation of minors to engage in prostitution and interstate wire transfer of funds in aid of racketeering enterprises, in violation of 18 U.S.C. § 371; and conspiracy to possess with intent to distribute cocaine base and to employ, hire, use, persuade and coerce minors in furtherance thereof, in violation of 21 U.S.C. §§ 841, 846 and 861. The court sentenced defendant to 360 months in prison.

The district court denied defendant’s § 2255 motion, holding that even if the lawyer “fell asleep once or twice during the protracted trial involving over 40 witnesses,” the trial transcript reflected “his attention to the six witnesses who directly implicated” defendant.

First Impression

Although this is a case of first impression in this circuit, four other circuits have considered whether application of a presumption of prejudice under U.S. v. Cronic, 466 U.S. 648 (1984), is warranted when a defendant’s counsel is asleep during trial. All of these circuits have held that prejudice must be presumed when counsel sleeps either through a “substantial portion” of a defendant’s trial or at a critical time during trial. We agree with other circuits and hold that a defendant’s Sixth Amendment right to counsel is violated when that defendant’s counsel is asleep during a substantial portion of the defendant’s trial. In such circumstances, Cronic requires us to presume prejudice because the defendant has been constructively denied counsel.

The district court utterly failed to consider the likely possibility that each witness saw the lawyer asleep or nodding off on different occasions. Had the court done so, it would have reached the conclusion that the lawyer could have been asleep on at least six or seven different occasions. This is consistent with the juror’s testimony.

Based on this record, we find it impossible not to conclude that the lawyer slept and was therefore not functioning as a lawyer during a substantial portion of the trial. The fact that the lawyer was sleeping during defendant’s trial amounted to constructive denial of counsel for substantial periods of that trial.

Vacated and remanded.