United States Court of Appeals 

for the Fifth Circuit 

No. 17-20661 

Deshun Thomas, 

Petitioner—Appellant,

versus 

Bobby Lumpkin, Director, Texas Department of Criminal 

Justice, Correctional Institutions Division, 

Respondent—Appellee. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:14-CV-290 

ON PETITION FOR REHEARING EN BANC 

 (Opinion 7/29/20, 968 F.3d 352 (5th Cir. 2020) 

Before Davis, Jones, and Engelhardt, Circuit Judges. 

Per Curiam: 

 The court having been polled at the request of one of its members, 

and a majority of the judges who are in regular active service and not 

disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Circ. R. 35), 

the petition for rehearing en banc is DENIED.
No. 17-20661 

2 

 In the en banc poll, 6 judges voted in favor of rehearing (Judges 

Stewart, Dennis, Elrod, Graves, Higginson, and Willett), and 11 judges voted 

against rehearing (Chief Judge Owen and Judges Jones, Smith, Southwick, 

Haynes, Costa, Ho, Duncan, Engelhardt, Oldham and Wilson). 

 ENTERED FOR THE COURT: 

 ______________ 

 Edith H. Jones

 United States Circuit Judge
No. 17-20661 

3 

James E. Graves, Jr., Circuit Judge, dissenting from the denial of 

rehearing en banc, joined by ELROD, Circuit Judge: 

Because the panel opinion is contrary to both Haynes v. Cain, 298 F.3d 

375 (5th Cir. 2002) and United States v. Cronic, 466 U.S. 648 (1984), I 

respectfully dissent from the denial of rehearing en banc. 

This court granted a certificate of appealability on Deshun Thomas’ 

claim that his trial counsel failed to subject the prosecution’s case to 

meaningful adversarial testing in violation of Cronic. The panel found no 

error and affirmed. In doing so, the panel concluded that Thomas’ claim 

failed regardless of whether de novo review or AEDPA applied.1

To prevail on a claim of ineffective assistance of counsel, a petitioner 

must typically satisfy the two-prong test of deficiency and prejudice under 

Strickland v. Washington, 466 U.S. 668, 687 (1984). To show that counsel’s 

performance was deficient, “requires showing that counsel made errors so

serious that counsel was not functioning as the counsel guaranteed the 

defendant by the Sixth Amendment.” Id. at 687 (internal marks omitted). 

To establish prejudice, a petitioner must show “that counsel’s errors were 

so serious as to deprive the defendant of a fair trial, a trial whose result is 

reliable.” Id. 

As the panel stated, Cronic created a limited exception to the 

application of Strickland’s two-part test where prejudice is presumed in 

1

 I agree that de novo review applies. However, I would conclude that Thomas is 

entitled to relief under either de novo review or AEDPA deference. 
No. 17-20661 

4 

certain situations. See Haynes, 298 F.3d at 380. Prejudice is presumed in 

three situations, (1) the complete denial of counsel at a critical stage; (2) if 

counsel entirely fails to subject the prosecution’s case to meaningful 

adversarial testing; and (3) where counsel is called upon to render assistance 

under circumstances where competent counsel very likely could not. See Bell 

v. Cone, 535 U.S. 685, 695-96 (2002); see also Haynes, 298 F.3d at 380; and 

Cronic, 466 U.S. at 659. Thomas relies on the second exception. 

The panel noted that the state Fourteenth Court of Appeals “held 

that Thomas’s trial counsel’s closing arguments were professionally 

incompetent in violation of Strickland v. Washington, 466 U.S. 668 . . . (1984) 

because they essentially conceded his client’s guilt, but appellate counsel had 

waived any showing, pursuant to the other Strickland prong, of prejudice to 

Thomas.” Thomas v. Davis, 968 F.3d 352, 353 n.1 (5th Cir. 2020). The panel 

further found it “rather odd” that neither the state habeas court nor the 

Texas Court of Criminal Appeals addressed the state appellate court’s 

holding. But the panel concluded that the discrepancy did not matter. Id. at 

n.2. 

Specifically, the Fourteenth Court of Appeals affirmed the conviction 

and sentence but said: 

However, given trial counsel’s closing argument in the 

punishment phase, in which he made specific reference to trial 

counsel’s concession of appellant’s guilt in closing argument in 

the punishment phase, combined with counsel’s references 

to the overwhelmingly powerful evidence at the guiltinnocence phase, the totality of the representation amounts to 

conduct so outrageous that it falls well-below professional 
No. 17-20661 

5 

standards. Appellant’s trial counsel emphasized the strength 

of the evidence against appellant and affirmatively argued both 

for finding appellant guilty and for assessing a substantial 

sentence. Under the circumstances of this case, no plausible 

basis exists and no strategic motivation could explain why trial 

counsel fashioned his arguments as he did. Appellant has 

rebutted the presumption that counsel’s conduct was 

reasonably professional and motivated by sound trial strategy 

because counsel’s closing arguments amount to conduct “so 

outrageous that no competent attorney would have engaged 

in it.” Appellant has satisfied the first prong in Strickland by 

showing his trial counsel’s conduct was deficient such that it 

fell below the standard of professional norms. 

 

See Thomas v. State, No. 14-06-00540-CR, 2008 WL 596228, *4 (Tex. App. 

Mar. 6, 2008)(Thomas II)(internal citations omitted). But, after finding that 

Thomas established the deficiency prong of Strickland, the court then found 

that he had “waived error as to Strickland’s second prong by failing to 

adequately brief it on appeal.” Id. at *5. 

 The panel here relied on Haynes to conclude that Thomas’ trial 

counsel did not entirely fail to subject the prosecution’s case to meaningful 

adversarial testing. Thomas, 968 F.3d at 355; see also Haynes, 298 F.3d at 381. 

In doing so the panel directed us to the district court’s opinion, which said 

that counsel advocated on Thomas’ behalf throughout trial, moved to 

suppress evidence and cross-examined witnesses. It further concluded that 

counsel did not concede the only factual issue in dispute, but merely 

described evidence against Thomas as “really strong,” “substantial,” 

“persuasive,” and “pretty powerful.” Thomas, 968 F.3d at 355. The panel 

also pointed to counsel’s admonishment to the jury that any reasonable doubt 
No. 17-20661 

6 

required them to acquit, before concluding that, read in context, counsel’s 

“summation indicates that his comments were strategically made to maintain 

credibility with the jury.” Id. at 356. Finally, it concluded that counsel’s 

sentencing arguments during the punishment phase confirmed this 

“strategy,” while noting that counsel died after trying this case and was 

never available for post-conviction inquiry about the defense or any alleged 

strategy. Id. at n.6. 

 However, the record does not support these conclusions, which 

conflict with controlling authority. As an initial matter, strategy goes to 

counsel’s performance, not the prejudice factor. Strickland, 466 U.S. at 698-

99. The state appellate court already found that Thomas had established 

deficient performance. The only issue remaining was whether the deficient 

performance prejudiced Thomas, which the court said Thomas had failed to 

brief. The panel and the district court disregarded the state appellate court’s 

finding and reweighed the performance factor to determine that counsel’s 

deficient performance was mere strategy. 

As the panel conceded, “Cronic applies to concessions only when they 

result in a ‘complete abandonment of counsel’; that is, the attorney must 

concede ‘the only factual issues in dispute.’” Thomas, 968 F.3d at 355 

(quoting Haynes, 298 F.3d at 381).2

 Again, the panel concluded that counsel 

2

 The panel cites Barbee v. Davis, 728 F. App’x 259, 264 (5th Cir. 2018) for the 

proposition that the “Supreme Court has held that even defense counsel’s full concession 

of guilt is not necessarily an indication that counsel has entirely failed to function as the 

client’s advocate.” Id. (quoting Florida v. Nixon, 543 U.S. 175, 189–91 (2004)) (internal 

marks and emphasis omitted). Nixon is easily distinguished as counsel there explained his 
No. 17-20661 

7 

had not conceded the only factual issues in dispute, pointing to various 

actions taken by counsel throughout the trial. However, regardless of what 

counsel did earlier at trial, he conceded the only factual issues in dispute 

when he admitted Thomas’ guilt during closing and, thus, abandoned any 

attempt to subject the prosecution’s case to meaningful adversarial testing. 

Moreover, following the concession in Haynes, counsel “remained active at 

trial, probing weaknesses in the prosecution’s case on the issue of intent,” 

and cross-examining witnesses. Id. 298 F.3d at 382. Here, counsel conceded 

guilt during closing arguments. Thus, there was no opportunity for counsel 

to rectify his concession during some later portion of the proceedings. 

Specifically, counsel repeatedly assured the jury of his trial experience 

and made numerous explicit statements regarding Thomas’ guilt, such as: 

(1) “it seems really strong to me that this young man is guilty, this person I’m 

representing is guilty;”(2) he was “convinced that the evidence [of 

Thomas’s guilt] [was] pretty powerful;” (3) there was “a substantial amount 

of evidence” demonstrating Thomas’ guilt; and (4) “If you reach a verdict 

that says he’s guilty, that’s the way it is. I appreciate it.” Thomas II, 2008 

WL 596228, ** 1-2 (emphasis omitted). The jury convicted Thomas, and the 

trial proceeded to the punishment phase, where defense counsel first 

acknowledged that he had “practically consented to a guilty verdict in this 

case, because I thought the evidence was overwhelming based on the many 

strategy to Nixon several times to “concede guilt and to home in, instead, on the life or 

death penalty issue.” Id. at 189. Counsel here neither explained his strategy nor attempted 

to get a shorter sentence. In fact, counsel here failed to offer any mitigation. 
No. 17-20661 

8 

years of experience of trying cases” and reiterated that the evidence against 

Thomas was “overwhelming.” Id. at 2 (emphasis omitted). Counsel then 

argued that “[a]ll of the evidence—and I would be a fool if I suggested 

otherwise, and I’m not—is compelling that this young man deserves a pretty 

substantial sentence. I’m not talking about of [sic] sentence of 15 years. All 

of the evidence is compelling.” Counsel then told the jury he wanted them 

to take into consideration that “[a] young man lost his life, destroyed his 

mother practically” and all of Thomas’ prior convictions before stating, “I 

can assure you I’m a fairly wordy individual, but I know I can’t deter you 

from the things you ought to do in this case. And in this case, I’m convinced, 

based on all of the facts, he deserves a substantial sentence.” Thomas II, 2008 

WL 596228, 2. Counsel offered nothing in mitigation and told the jury he 

could not quarrel with any sentence the jury selected. Id. 

That complete abandonment of counsel falls squarely within Cronic. 

See Haynes, 298 F.3d at 381. When there is a “breakdown of the adversarial 

process,” prejudice is presumed. Cronic, 466 U.S. at 657–58. Counsel’s 

explicit concession of guilt on the only offense and request for a substantial 

sentence as a result is a breakdown of the adversarial process. Further, the 

subsequent objection regarding Thomas’ failure to testify does not in any way 

correct this breakdown. The panel ultimately concluded that counsel’s 

“strategy” paid off because Thomas received only seventy-five years 

imprisonment rather than life. The record in this matter clearly 

demonstrates that Thomas received seventy-five years instead of life in spite 

of counsel’s performance, not because of counsel’s performance. Counsel 
No. 17-20661 

9 

did not admit Thomas’ guilt only to a lesser-included offense; counsel 

admitted Thomas’ guilt to the only offense. Counsel did not concede guilt 

in an attempt to get a lighter sentence; counsel conceded guilt and asked for 

a substantial sentence while failing to present anything in mitigation. At the 

point that counsel conceded guilt, he failed to mount a defense regardless of 

anything he had done prior to that concession. At the point that counsel 

asked for a substantial sentence, he verified that this was not an attempt at 

strategy. Thus, the panel decision is contrary to both Haynes and Cronic. 

For these reasons, I respectfully dissent from the denial of rehearing 

en banc.