### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 20

‐ 1642

R ODERICK V. L EWIS

,

Petitioner

‐ Appellant

,

v.

D USHAN Z ATECKY

, Respondent

‐ Appellee

.

____________________

Appeal from the United States District Court for the

Southern District of Indiana, Indianapolis Division.

No. 1:19

‐ cv

‐ 01515

‐ RLY

‐ MPB

— Richard L. Young

, Judge

.

____________________

A RGUED S EPTEMBER 30, 2020

— D ECIDED A PRIL 13, 2021

____________________

Before S YKES

, Chief Judge

, and W OOD and B RENNAN

, Circuit

Judges

.

W OOD

, Circuit Judge

. When has a client charged with a se

‐

rious crime received not merely inadequate assistance of

counsel, but a failure of representation so serious that “coun

‐

sel has entirely failed to function as the client’s advocate”?

Florida v. Nixon, 543 U.S. 175, 189 (2004). This is the situation

the Supreme Court fi rst addressed in United States v. Cronic

,

466 U.S. 648 (1984). Although such a total breakdown is rare,2 No. 20

‐ 1642

the Court has never wavered from the recognition that it can

occur. In such cases, unlike those presenting more conven

‐

tional ine ff ective

‐ assistance claims, the defendant does not

need to make an independent showing of prejudice. See

Strickland v. Washington

, 466 U.S. 668 (1984). The failing is so

profound that prejudice is inherent in the situation.

In the case before us, Roderick Lewis argues that his is one

of the extraordinary cases to which the Cronic rule applies.

Standing convicted of felony murder, he received literally no

assistance from his lawyer during the sentencing stage of the

trial. After proceedings in the state courts, which we detail

below, he turned to federal court and filed a petition for a writ

of habeas corpus under 28 U.S.C. § 2254. The district court de

‐

nied relief, but it issued a certificate of appealability to Lewis.

We conclude that the decision of the last responsible state

court was contrary to Supreme Court precedent, insofar as it

held that Strickland

, not Cronic

, furnished the applicable rule,

and it was an unreasonable application of Cronic

, insofar as it

focused on that case. 1 We thus reverse and remand for issu

‐

ance of the writ, limited to sentencing.

1 In order to be fair to the state court, we consider its decision under

each of the two distinct branches of section 2254(d)(1), as courts commonly

do. See, e.g.

, Aki

‐ Khuam v. Davis

, 339 F.3d 521, 529 (7th Cir. 2003) (“... it is

clear that the state trial court proceedings, and the st ate supreme court

review thereof, resulted in a decision contrary to, and involving an unre a

‐

sonable application of, federal law as determined by the United States Su

‐

preme Court[.]”); Bailey v. Rae

, 339 F.3d 1107, 1118–19 (9th Cir. 2003) (state

court’s application of a standard “is ‘contrary to’ clear Supreme Court

precedent[] [a nd] [t]he state court’s denial of the Brady claim wa s al so ob

‐ jectively ‘unreasonable’[.]”); Pazden v. Maurer

, 424 F.3d 303, 306 (3d Cir.

2005) (the state court’s determination “was both contrary to, and an un

‐

reasonable application of, clearly established law as proclaimed by theNo. 20

‐ 1642 3

I

A

We take our account of the underlying facts from the sec

‐

ond opinion of the Court of Appeals of Indiana, the last state

court to consider this case. See Lewis v. State ( Lewis II ), 116

N.E.3d 1144 (Ind. Ct. App. 2018). That court in turn relied on

the facts it had reported on direct appeal, see Lewis v.

State ( Lewis I ), 973 N.E.2d 110 (Table), (Ind. Ct. App. 2012), but

we can largely disregard that detail.

The case involved a toxic mixture: drugs, robbery plans,

guns, and immaturity. Richard Rogers, then 16 years old, ran

a drug house in Fort Wayne, Indiana, with Sidney W ilson, 14

years old. On June 29, 1999, Rogers invited Christopher Hale

to visit the drug house, but Hale declined because of tensions

with Wilson. Later that evening, Hale, petitioner Roderick

Lewis, and Kajuanta Mays came up with a plan to rob Rogers

and Wilson of both drugs and money. They fi rst con fi rmed

that Rogers and Wilson were alone by sending Angela

Supreme Court.”); Fratta v. Quarterman

, 536 F.3d 485, 502–03 (5th Cir. 2008)

(“The district court was thus correct in determining that the CCA’s deci

‐

sion was contrary to, and involved an unreasonable application of, clearly

established federal law.”); Breakiron v. Horn

, 642 F.3d 126, 139 (3d Cir.

2011) (the state co urt’s ruling “is both contrary to and an unreason ab le

application of Strickland .”); Dennis v. Sec’y, Pennsylvania Dep’t of Corr

., 834

F.3d 263, 285 (3d Cir. 2016) (“We conclude...that the [state court]’s deci

‐

sion

... rested on

... unreasonable applications of clearly established law,

or were contrary to United States Supreme Court pre cedent.”); Rivera v.

Thompson

, 879 F.3d 7, 16–17 (1st Cir. 2018) (“[W]e con c lude that

... the

[state court]’s holding was contrary to governing Supreme Court law[.]

... Thus, the [state court]’s conclusion ‘involved an unreasonable application

of[] clearly established Federal law, as determined by the Supreme Court

of the Un ited States.’”).4 No. 20

‐ 1642

Lawson to the house to buy drugs. Hale then showed up, fol

‐

lowed by Lewis and Mays. The group smoked and drank to

‐ gether. Two of them were armed: Lewis had a .38 special re

‐

volver, and Hale had a 9 mm fi rearm.

At one point Hale went upstairs. When he returned, he

said “die bitch” and shot Wilson fi ve times, killing him. Rog

‐

ers and Lewis then each reached for a shotgun. Hale told

Lewis to kill Rogers, but Lewis refused, instead handing his

revolver to Mays and saying, “if you want it

... you do it.”

Mays did not hesitate: he shot Rogers multiple times, fatally.

Lewis, Hale, and Mays then collected the drugs and money

and fl ed. They wound up in a hotel where they laughed and

partied through the night. Later, Lewis had his uncle bury the

murder weapon.

For the nex t few years, the crime remained unsolved and

Lewis traveled around the country, living in Arizona and In

‐

diana. Ultimately, however, investigators in Fort Wayne iden

‐

ti fi ed him as a suspect in the 1999 murders. They found him

in a prison in May 2009 and interviewed him; on February 25,

2011, the State of Indiana charged him with two counts of fel

‐

ony murder and two counts of robbery. He was arrested on

June 27, 2011.

B

At tria l, Lewis was represented by A tt orney Je ff rey Ra ff

.

Ra ff tried to get Lewis seriously to consider some plea o ff ers,

but Lewis was uninterested, perhaps because he did not un

‐

derstand the concept of felony murder and thought that, be

‐

cause he did no t shoot either Wilson or Rogers, he was not

guilty. If that was his impression, he was mistaken. The jury

found Lewis guilty as charged.No. 20

‐ 1642 5

The problems that bring Lewis before us today arose at the

sentencing phase. Here is how the Indiana Court of Appeals

described Ra ff ’s assistance to Lewis at that critical point:

“Judge I’m going to defer to Mr. Lewis if he has any

comments. I don’t have anything to add.” Sentencing

Transcript at 23–24. This is the sum total of trial coun

‐

sel’s participation at Lewis’s sentencing hearing, at

which Lew is was being sentenced for two counts of fel

‐

ony murder and faced a maximum sentence of 130

years in prison. The trial court found no mitigating cir

‐

cumstances—none being asserted by the defense—and

sentenced Lewis to the maximum aggregate sentence

of 130 years in prison.

Lewis II

, ¶ 1. Represent ed by new counsel, Lewis took a direct

appeal, but it was unsuccessful. See Lewis I. Acting pro se,

Lewis then fi led a post

‐ conviction petition in the state court in

2013. Post

‐ conviction counsel amended that petition in Octo

‐

ber 2016, and the court held an evidentiary hearing on July 7,

2017.

Lewis called A tt orney Ra ff

, among others, to testify at that

hearing. The state conceded that Ra ff “basically did not do

any advocacy at the sentencing hearing” but argued that he

could not have made a di ff erence anyway. Ra ff himself testi

‐

fi ed about his normal procedures for preparing for a sentenc

‐ ing hearing. He also described quite a few things that he did

not do:

He made no inquiries about Petitioner’s mental

health history, and was not aware that Petitioner had

a tt empted suicide at the Allen County Jail.

... He did

not ask Petitioner about his upbringing or his family6 No. 20

‐ 1642

members, did not speak to his relatives or friends, and

did not have him examined by a mental health profes

‐

sional. He did not prepare Petitioner to make a state

‐

ment at sentencing, and explained that Petitioner did

not take his advice well.

Lewis II, ¶ 16, quoting from the post

‐ conviction court’s fi nd

‐ ings of fact. Essentially Ra ff thought that Lewis was a hope

‐

less cause, and so there was nothing useful Ra ff could do.

Other witnesses at the post

‐ conviction hearing spoke about

evidence that might have had an impact at sentencing, includ

‐ ing a psychologist who diagnosed Lewis with bipolar II dis

‐

order and discussed his associated substance

‐ abuse problem,

physical abuse by his mother’s boyfriends, mental disorders

in other family members, and his a tt empted suicide. None of

this, it bears repeating, was brought out during the sentencing

stage of the trial.

On state post

‐ conviction review, the state appellate court

“agree[d] with Lewis that trial counsel’s performance at sen

‐ tencing was clearly de fi cient.” Lewis II

, ¶¶ 4, 20. Nevertheless,

the court held that “our review leaves us with the fi rm con

‐

viction that Lewis was not prejudiced by counsel’s de fi cient

performance.” Id. ¶ 20. It reviewed the following potential

mitigating circumstances: Lewis’s role as an accomplice; his

age; his di ffi cult childhood; and his mental health. None of

these could have supported a fi nding of prejudice, in the

court’s view, nor was it troubled by his consecutive sentences.

Finally, the court turned to the issue that has survived to

reach us: whether the proper standard for assessing Lewis’s

case comes from Cronic

, as Lewis argues, or Strickland

. If it is

Strickland

, then Lewis’s case is over: we cannot say that the

Indiana Court of Appeals was unreasonable when it foundNo. 20

‐ 1642 7

that Lewis had not been prejudiced by his a tt orney’s substand

‐

ard performance. (We add that we are not necessarily saying

that we would have resolved the prejudice issue the same

way. We mean only that we are satis fi ed that the state court

acted within the generous boundaries delineated for it by 28

U.S.C. § 2254(d)(1).) If Cronic applies, howev er, then ma tt ers

are quite di ff erent, because prejudice need not be shown. But

the state court found that Lewis’s case did not fi t within the

Cronic framework. Lewis II

, ¶ 39. Its fi nding of no prejudice for

Strickland purposes required it to a ffi rm the trial court’s denial

of post

‐ conviction relief.

After exhausting his state

‐ court remedies, Lewis fi led a pe

‐

tition under 28 U.S.C. § 2254 in the federal court. The district

court acknowledged that in Miller v. Martin

, 481 F.3d 468 (7th

Cir. 2007), this court had found that the Indiana court had un

‐ reasonably failed to apply Cronic to an a tt orney’s performance

at sentencing, and thus that petitioner Miller was entitled to

the issuance of a writ of habeas corpus. Id. at 470. But, the

court thought, Miller had been undermined by two decisions

of the U.S. Supreme Cou rt: Wright v. Va n Pa tt en

, 552 U.S. 120

(2008), and Woods v. Donald

, 575 U.S. 312 (2015). It character

‐

ized what happened in Lewis’s case as counsel’s complete

failure to subject the prosecution’s case to adversarial testing,

and it then concluded that no Supreme Court decision

squarely addressed that situation. It thus concluded that the

criteria for the issuance of a writ were not met. But the court

also recognized that “[r]easonable jurists could disagree

about whether Cronic clearly establishes an exception to

Strickland ’s prejudice requirement” on these facts, and so it is

‐

sued a certi fi cate of appealability to Lewis limited to this is

‐

sue.8 No. 20

‐ 1642

II

We begin with a review of the Supreme Court’s Cronic de

‐

cision and how it fi ts within the broader context of ine ff ective

‐

assistance

‐ of

‐ counsel cases. For purposes of section 2254(d),

the only relevant law is that which is “clearly established Fed

‐

eral law, as determined by the Supreme Court of the United

States[.]” 28 U.S.C. § 2254(d)(1). Our own decisions, as well as

those of other circuits or state courts, are informative only in

‐

sofar as they may shed light on our understanding of the au

‐

thoritative Supreme Court precedents.

1. Cronic

The underlying facts of Cronic involved a common check

‐ kiting scheme, in which defendant Cronic and his co

‐ defend

‐

ants relayed checks back and forth between two bank ac

‐

counts (one in Ta mpa, Florida, and the other in Norman, Ok

‐ lahoma) in order to create falsely in fl ated balances in each

one. They ran almost $4.8 million through the Tampa bank

and $4.6 million through the Norm an bank. They ultimately

were caught and indicted on federal mail

‐ fraud charges.

Cronic was initially represented by one lawyer, but shortly

before trial, that lawyer withdrew from the case. In his place,

“[t]he court appointed a young lawyer with a real estate prac

‐

tice” to represent Cronic. It allowed the substitute lawyer only

25 days to prepare for trial, even though the government had

been working for over four and a half years on the case and

“had reviewed thousands of documents.” 466 U.S. at 649.

Cronic’s co

‐ defendants agreed to testify for the government.

Despite these disadvantages, Cronic’s lawyer managed to

do a few things. He was able to establish some points favora

‐

ble to Cronic on cross

‐ examination. He did not, however, putNo. 20

‐ 1642 9

on any defense. In the end, Cronic was convicted on most

counts of the indictment and sentenced to 25 years’ imprison

‐

ment. His trial lawyer fi led a timely appeal for him, although

two months later Cronic fi led a motion asking that a new law

‐

yer be appointed for the appeal.

The court of appeals obliged him, though it declined to ap

‐ point the lawyer Cronic had requested. It reversed Cronic’s

conviction on the basis of several factors: the limited time for

investigation and preparation, counsel’s lack of experience,

the gravity of the charge, the complexity of possible defenses,

and counsel’s access to witnesses. The Supreme Court re

‐

versed. Id. at 667.

The Court began its analysis by reiterating the critical role

that counsel plays in the criminal justice system and the con

‐

sequent need to assure counsel’s competence:

The right to the e ff ective assistance of counsel is thus

the right of the accused to require the prosecution’s

case to survive the crucible of meaningful adversarial

testing.

Id. at 656. It then rea ffi rmed the general rule, under whic h

“[a]bsent some e ff ect of challenged conduct on the reliability

of the trial process, the Sixth Amendment guarantee is gener

‐ ally not implicated.” Id. at 658.

That said, the Court then spelled out some “circumstances

that are so likely to pr ejudice the accused that the cost of liti

‐ gating their e ff ect in a particular case is unjusti fi ed.” Id. It sin

‐ gled out the following examples:

 The complete absence of counsel at a critical stage

of the trial. Id. at 659.10 No. 20

‐ 1642

 Counsel’s total failure to subject the prosecution’s

case to meaningful adversarial testing. Id.

 Other circumstances under which, “although coun

‐

sel is available to assist the accused during trial, the

likelihood that any lawyer, even a fully competent

one, could provide e ff ective assistance is so small

that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial.”

Id. at 659–60.

The Court concluded that Cronic had not su ff ered from an ex

‐

treme deprivation along the lines of its examples, and so he

could prevail only if he could identify speci fi c errors that trial

counsel made. Id. at 666. That issue, the Court held, could be

explored on remand.

In the years since it was decided, Cronic has made few ap

‐

pearances in Supreme Court opinions. The district court iden

‐

ti fi ed two of those in its e ff ort to distinguish our decision in

Miller

, 481 F.3d 468: Wright v. Van Pa tt en

, 552 U.S. 120 (2008),

and Woods v. Donald

, 575 U.S. 312 (2015). But neither case of

‐

fers help in answering the question we face. Wright v. Van Pat

‐

ten concerned whether it was clearly established that a de

‐

fense counsel’s appearance at a plea hearing by speakerphone

was the equivalent of a complete denial of counsel. The Court

ruled that Cronic did not go that far. 552 U.S. at 125. Indeed,

recent experience has shown that remote presence is a rela

‐ tively good substitute for a great many things. The problem

for Lewis was not, as in Van Pa tt en

, that his lawyer’s assistance

was occurring via telephone or Zoom; it is that his a tt orney

did absolutely nothing for him regardless of format. The

Court similarly declined to apply Cronic in Woods v. Donald

, a

situation in which defense counsel was brie fl y absent from hisNo. 20

‐ 1642 11

client’s joint criminal trial and missed the beginning of a gov

‐

ernment witness’s testimony about codefendants’ actions. 575

U.S. at 317–19. Lewis does not allege that his a tt orney was

physically absent at any relevant time. Neither Van Pa tt en nor

Woods thus advances the analysis here.

Cronic is far from a dead le tt er in the Supreme Court. To

the contrary, as recently as October Term 2018, in Garz a v.

Idaho

, 139 S. Ct. 738 (2019), the Court rea ffi rmed Cronic ’s hold

‐ ing. Garza was a case in which an a tt orney in a criminal case

failed to fi le a notice of appeal for a defendant, despite the fact

that the defendant asked the a tt orney to do so. Normally, un

‐

der those circumstances prejudice is presumed, regardless of

how likely an appeal would be to change the result. See Roe v.

Flores

‐ Ortega

, 528 U.S. 470, 484 (2000). But Garza had signed

two plea a greements in which he waiv ed his right to appeal.

139 S. Ct. at 742.

Based on those waivers, counsel informed Garza that he

was not going to initiate an appeal. Garza sought post

‐ convic

‐

tion relief in Idaho’s state courts, but they ruled that he

needed to show both de fi cient performance and prejudice,

and that he had not done so. The Supreme Court reversed.

It began by reiterating that “in certain Sixth Amendment

contexts,

... prejudice is presumed.” Id. at 744 (quotations

omi tt ed). It elaborated as follows:

For example, no showing of prejudice is necessary if

the accused is denied counsel at a critical stage of his

trial, Unite d States v. Cronic

, 466 U.S. 648, 659 (1984), or

left entirely without the assistance of counsel on ap

‐ peal, Penson v. Ohio

, 488 U.S. 75, 88 (1988). Similarly,

prejudice is presumed if counsel entirely fails to subject12 No. 20

‐ 1642

the prosecution’s case to meaningful adversarial test

‐ ing. Cronic

, 466 U.S. at 659. And, most relevant here,

prejudice is presumed when counsel’s constitutionally

de fi cient performance deprives a defendant of an ap

‐ peal that he otherwise would have taken. Flores

‐ Ortega

,

528 U.S. at 484. We hold today that this fi nal presump

‐

tion applies even when the defendant has signed an

appeal wai ver.

139 S. Ct. at 744 (cleaned up). With respect to the case before

it, the Court underscored that appeal waivers do not inevita

‐ bly block all further recourse: some ma tt ers might fall outside

the scope of a waiver, the prosecution might forfeit the bene fi t

of a waiver, or the waiver might be unenforceable on the

ground that it was unknowing or involuntary. Id. at 744–45. It

therefore found that the presumption of prejudice recognized

in Flores

‐ Ortega applied to Garza’s case and remanded for fur

‐

ther proceedings.

Years earlier, the Court had also discussed the Cronic rule,

albeit in the context of a proceeding in which it found that the

rule did not apply. The case was Nixon

, supra

, 543 U.S. 175

(2004), a capital case that came to the Supreme Court after the

Florida Supreme Court resolved the defendant’s state post

‐

conviction petition. Before trial, counsel informed his client,

Nixon, that he intended to concede guilt at the outset of the

trial, in the hope that this would persuade the jury not to rec

‐

ommend death during the penalty phase. Id. at 178. Nixon did

not respond one way or the other to this statement, and so

counsel followed his planned strategy.

The Florida Supreme Court found that counsel’s decision

e ff ectively to concede guilt without having Nixon’s express

consent to do so amounted to constitutionally ine ff ectiveNo. 20

‐ 1642 13

performance, and that such a concession of guilt triggered the

Cronic presumption of prejudice. Id. at 188–89. The Supreme

Court held that the state court erred in both respects. At least

in a case such as Nixon’s, where counsel fully informed the

client of his proposed trial strategy and the client raised no

objection, counsel was entitled to proceed as planned. More

‐

over, in a passage that is relevant to our case, it found that this

wa s not an occasion for presumed prejudice:

Cronic recognized a narrow exception to S trick

‐

land ’s holding that a defendant who asserts ine ff ective

assistance of counsel must demonstrate not only that

his a tt orney’s performance was de fi cient, but also that

the de fi ciency prejudiced the defense. Cronic in

‐

structed 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 e ff ect in a

particular case is unjusti fi ed. 466 U.S., at 658. The

Court elaborated: “[I]f counsel entirely fails to subject

the prosecution’s case to meaningful adversarial test

‐ ing, then there has been a denial of Sixth Amendment

rights that makes the adversary process itself pre

‐ sumptively unreliable.” Id., at 659; see Bell v. Cone, 535

U.S. 685, 696–697 (2002) (for Cronic ’s presumed preju

‐

dice standard to apply, counsel’s failure must be com

‐ plete). We illustrated just how infrequently the sur

‐ rounding circumstances [will] justify a presumption of

ine ff ectiveness in Cronic itself. In that case, we reversed

a Court of Appeals ruling that ranked as prejudicially

inadequate the performance of an inexperienced, un

‐ derprepared a tt orney in a complex mail fraud trial. 466

U.S., at 662, 666.14 No. 20

‐ 1642

543 U.S. at 190 (cleaned up). See also Kansas v. Ventris, 556 U.S.

586, 591 (2009) (citing Cronic for the proposition that the right

to counsel “ensur[es] that the prosecution’s case is subjected

to ‘the crucible of meaningful adversary testing’”).

Although it is possible, as the Supreme Court itself did in

Cronic and as the district court here did, to identify particular

circumstances in which the Cronic rule will apply, we must

take the Court at its wo rd when it says that it is simply o ff er

‐ ing illustrations of the rule announced by the Court. We have

cautioned before that “[j]udicial opinions must not be con

‐

fused with statutes, and general expressions must be read in

light of the subject under consideration.” United States v.

Skoien

, 614 F.3d 638, 640 (7th Cir. 2010) (en banc) (citing Zenith

Radio Corp. v. United States, 437 U.S. 443, 462 (1978)). More to

the point, the Supreme Court itself has expressly stated that

section 2254(d)(1) does not demand a clone in prior law. Wil

‐

liams v. Taylor

, 529 U.S. 362, 407–09 (2000). As the Court has

put this point, section 2254(d)(1) does not “require state and

federal courts to wait for some nearly identical factual pa tt ern

before a legal rule must be applied” nor does it “prohibit a

federal court from fi nding an application of a principle unrea

‐

sonable when it involv es a set of facts di ff erent from those of

the case in which the principle was announced.” Pane tt i v.

Quarterman

, 551 U.S. 930, 953 (2007) (cleaned up). Instead,

“state courts must reasonably apply the rules squarely estab

‐

lished by [the Supreme Court]’s holdi ngs to the facts of each

case.” White v. Woodall

, 572 U.S. 415, 427 (2014). As applied

here, that means that we must pay heed to Cronic ’s core hold

‐ ing: that a showing of prejudice is not necessary in “situations

in which counsel has entirely failed to function as the client’s

advocate.” Nixon

, 543 U.S. at 189. Implicit in this formulationNo. 20

‐ 1642 15

is the need to show that this extreme failure occurred during

a critical stage of the proceedings. Lewis has done just that.

2. Critical Stage

Before proceeding to apply these principles to Lewis’s

case, we con fi rm that the Supreme Court has emphasized for

years the “critical nature of sentencing in a criminal case[.]”

See Mempa v. Rhay

, 389 U.S. 128, 134 (1967). The Court recon

‐

fi rmed that the Sixth Amendment right to counsel exists dur

‐ ing the sentencing phase in La fl er v. Cooper

, 566 U.S. 156 (2012):

The precedents also establish that there exists a right to

counsel during sentencing in both noncapital,

see Glover v. United States, 531 U.S. 198, 203–204

(2001); Me mpa v. Rhay, 389 U.S. 128 (1967), and capital

cases, see Wiggins v. Smith, 539 U.S. 510, 538 (2003).

Even though sentencing does not concern the defend

‐

ant’s guilt or innocence, ine ff ective assistance of coun

‐

sel during a sentencing hearing can result in Strick

‐

land prejudice because “any amo unt of [additional] jail

time has Sixth Amendment signi fi cance.” Glover, su

‐

pra, at 203.

566 U.S. at 165. This passage relates only to the question

whether the Sixth Amendment applies at all to proceedings

before and after trial; it does not address the distinction be

‐

tween a Strickland claim and a Cronic claim; hence, the refer

‐

ence to prejudice is of no moment.

To the extent a court of appeals decision is relevant, we

think it helpful to explain why our en banc decision in Schmidt

v. Foster

, 911 F.3d 469 (7th Cir. 2018), has no bearing on

whether the sentencing phase in Lewis’s ca se was a “critical

phase” for Sixth Amendment purposes. In Schmidt

, before16 No. 20

‐ 1642

defendant Schmidt’s trial on fi rst

‐ degree intentional homicide

charges began, the trial court had to make a decision about

whether to admit evidence relating to a defense of adequate

provocation. It decided to hold an ex parte

, in camera examina

‐

tion of Schmidt to help it assess whether he could pursue this

defense. Schmidt’s lawyer was present for that examination,

but the court admonished counsel not to say anything, and

the lawyer complied. The trial court ultimately decided to dis

‐

allow the defense; Schmidt was convicted; and after proceed

‐ ings that need not detain us, he argued in a petition under

section 2254 that he had su ff ered a complete deprivation of

counsel at a critical phase and thus was entitled to relief under

Cronic.

Bearing in mind the highly deferential approach to state

‐

court rulings that sect ion 2254(d) requires, the en banc court

rejected Schmidt’s argument. After canvassing the relevant

cases, the court fi rst held that the Supreme Court had never

had the occasion to consider the unusual circumstances that

Schmidt’s case presented: a deprivation of counsel during a

pre

‐ trial, in camera, examination that related to the admissibility

of evidence. 911 F.3d at 480. Moreover, the en banc court

viewed the course of events through a broader lens than

Schmidt had urged. That broader perspective showed that

counsel was able to help Schmidt in seve ral ways with respect

to the proposed evidence: he fi led a notice of the provocation

defense, he argued for its application in court hearings, he

briefed the law, he submi tt ed a detailed o ff er of proof, and he

gave the court a witness list. The fact that counsel was barred

from o ff ering assistance during the in camera hearing, the

court said, did not render the rest of counsel’s assistance

meaningless. Or at least, the court held, the state courts wereNo. 20

‐ 1642 17

entitled to view the case this way, and that was enough to re

‐ quire denial of the writ.

In our case, unlike Schmidt

, the Supreme Court has spoken

speci fi cally to the question whether the phase in question—

sentencing—is a “critical” one. As we noted earlier, the an

‐

swer is an unambiguous yes. And as we will see below, the

other distinction between Lewis’s case and Schmidt’s is the

degree of help that counsel o ff ered—signi fi cant for Schmidt,

nonexistent for Lewis.

III

We do not need to decide for ourselves whether trial coun

‐

sel’s performance at sentencing was de fi cient. We have only

to defer to the fi nding of the Indiana Court of Appeals in

Lewis II

, to which we referred at the outset of this opinion.

That court described counsel’s performance as “clearly de fi

‐

cient,” and we agree with that assessment. Where we part

company is with Lewis II ’s approach to Cronic

. The court be

‐

gan by reviewing the three situations that Cronic itself had

mentioned and that we noted earlier: ( 1) a complete denial of

counsel at a critical stage of trial; (2) the entire failure to sub

‐ ject the prosecution’s case to meaningful adversarial testing;

and (3) a situation in which counsel is called upon to render

assistance under circumstances where even competent coun

‐

sel could not do so. Lewis II

, ¶ 38. In the state court, Lewis

stressed the second of those three considerations, but the

court did not con fi ne its analysis to that situation. Rightly so,

we think—as we noted earlier, judicial opinions are not stat

‐

utes and should not be treated in such a rigid way.

But nothing turns on whether we see Cronic as establishing

three exclusive categories, or as stating a principle and18 No. 20

‐ 1642

o ff ering three illustrations. In the end, the state court simply

noted (accurately) that the Cronic exception is a narrow one,

rarely applied by the Supreme Court. Without another word,

it then turned to Strickland

, which it read as con fi ning pre

‐

sumed prejudice in various ways. 466 U.S. at 692–93. It did not

explain why, in the case before it, Lewis had not su ff ered ex

‐ actly the fate the Strickland Court had mentioned: th e actual

or constructive absolute denial of the assistance of counsel

( Cronic category one). Naturally, someone whose lawyer has

left him in the lurch that way will also fail to subject the pros

‐

ecutor’s case to meaningful adve rsarial testing ( Cronic cate

‐

gory two). In cases such as Lewis’s, there is thus no operative

di ff erence between the fi rst and the second of Cronic ’s exam

‐ ples.

The closest the state court came to supporting its conclu

‐

sion that Cronic does not apply to Lewis’s case is in the fol

‐ lowing passage:

Moreover, since Cronic was decided in 1984, the

U.S. Supreme Court has never applied the second ex

‐ ception [ i.e. lack of adversarial testing] to relieve a con

‐

victed defendant of the need to prove prejudice, nor

has the Indiana Supreme Court. In Bell [ v. Cone

, 535

U.S. 685 (2 002)], the Court simply spoke of “the possi

‐ bility of presuming prejudice based on an a tt orney’s

failure to test the prosecutor’s case” where the a tt or

‐ ney’s failure is complete. Bell

, 535 U.S. at 696–97 (em

‐ phasis supplied). Ultimately, the Court concluded in

Bell : “The aspects of counsel’s performance challenged

by respondent—the failure to adduce mitigating evi

‐

dence and the waiver of closing argument—are plainly

of the same ilk as other speci fi c a tt orney errors we haveNo. 20

‐ 1642 19

held subject to Strickland ’s performance and prejudice

components.” Id. at 697–98.

We are not persuaded that Lewis’s claim falls

within one of the limited circumstances of extreme

magnitude that justify a presumption of ine ff ective

‐

ness under Cronic

. The post

‐ conviction court, there

‐

fore, correctly determined that Lewis was required to

establish prejudice under Strickland

.

Lewis II at ¶¶ 42, 43.

Entirely missing from the state court’s brief discussion is

an acknowledgment of the day

‐ and

‐ night di ff erence between

the assistance that Cone received during the sentencing phase

of his case and that which Lewis got. Cone, in a word, had

plenty of help. The sentencing hearing was a separate part of

Cone’s trial. The state opened by telling the jury that it

planned to prove four aggravating factors that would justify

the death penalty. Defense counsel responded in his own

opening statement by calling to the jury’s a tt ention “the miti

‐ gating evidence already before them”, and by suggesting that

Cone “was under the in fl uence of extreme mental disturbance

or duress, that he was an addict whose drug and other prob

‐

lems stemmed from the stress of his militar y service, and that

he felt remorse.” 535 U.S. at 691. Counsel also urged the jury

to be merciful. Already, we note, Cone received far more than

Lewis did. But that was just the start for Cone—there was

much more. His lawyer cross

‐ examined the state’s witnesses

and objected to the introduction of gory photographs. He

chose to waive fi nal argument because this prevented the

state from arguing in rebu tt al. It is hardly a surprise that the

Supreme Court did not regard Cone’s lawyer’s performance

as either the equivalent of a total lack of counsel, or the20 No. 20

‐ 1642

“entire” failure to subject the prosecutions’ case to meaning

‐

ful adversarial testing. It was neither.

Let’s take another look at A tt orney Ra ff ’s “assistance” dur

‐ ing the entire sentencing phase. In essence, it was nothing but

a statement that he was bowing out. He u tt ered two short sen

‐

tences: “Judge, I’m going to defer to Mr. Lewis if he has any

comments. I don’t have anything to add.” This we nt beyond

a failure to conduct adversarial testing; it was an announce

‐

ment of abandonment. The state suggests that Ra ff did have a

strategy, and that was to allow Lewis to speak for himself in

the hope that he might express remorse. This has the fl aw of

having no support in the record. Ra ff never communicated

any such strategy to Lewis, and so Lewis had no guidance

from counsel about what he might do with his allocution

when he had the chance to speak. This theory also con fl icts

with Ra ff ’s testimony at the post

‐ conviction hearing. He never

said that he was trying to guide Lewis in this wa y. Instead, he

said that he thought that there were no mitigating factors in

Lewis’s case. Actually, he had no idea one way or the other,

because he never asked Lewis about his mental

‐ health history

and he nev er requested Lewis’s medical records. He did not

try to prepare Lewis for the hearing because he found Lewis

“di ffi cult” and “angry.” It is of no moment that four jurists

(whom we presume were acting in good faith) disagreed with

Cronic ’s application. The question is an objective one and does

not rest “on the simple fact that at least one of the Nation’s

jurists has applied the relevant federal law in the same man

‐

ner the state court did

... .” Williams

, 529 U.S. at 409–10.

Contrary to the dissent’s assertions, our opinion in no way

con fl icts with the holdings in Woods v. Donald

, Cone

, or Nixon

.

None of these cases involved the total absence of counsel (orNo. 20

‐ 1642 21

its functional equivalent) at a critical stage. That is what we

have here. By contrast, in Woods counsel was brie fl y absent

during the testimony of a co

‐ defendant. As discussed earlier,

counsel in Nixon fully informed his client of his proposed

strategy, and counsel in Cone subjected the prosecution’s case

to adversarial testing. Today’s outcome faithfully follows

Cronic

, because we are faced with the extraordinary situation

of a lawy er’s total abandonment of his client at the critical sen

‐ tencing state.

IV

If Ra ff was going to fall back to a plea for mercy, or an ef

‐

fort to convince Lewis to demonstrate remorse, he had to take

some step in that direction. He did not. Instead, he gave up on

Lewis and left him entirely without the assi stance of counsel

at the sentencing stage of a felony murder case. Rare though

Cronic cases may be, we think that this one quali fi es.

We therefore R EVERSE the judgment of the district court

and R EMAND this case for the issuance of a writ of habeas cor

‐

pus, limited to the sentencing phase of petitioner Roderick

Lewis’s case.22 No. 20

‐ 1642

B RENNAN

, Circuit Judge

, dissenting. If this were a direct ap

‐ peal, I might join the majority opinion. All can agree Roderick

Lewis’s counsel should have done more on his behalf at sen

‐ tencing. Such minimal involvement occurred at a critical stage

in a criminal case. But Lewis’s appeal comes to us as a collat

‐

eral a tt ack on a state court judgment under the Antiterrorism

and E ff ective Death Penal ty Act of 1996 (“AEDPA”). In his

petition for a writ of habeas corpus, Lewis contends his coun

‐

sel’s silence at sentencing requires us to apply the presump

‐

tion of prejudice described in United States v. Cronic

, 466 U.S.

648 (1984), to an ine ff ective assistance of counsel claim other

‐

wise gove rned by Strickland v. Washington

, 466 U.S. 668 (1984).

AEDPA requires that we grant habeas relief to Lewis only

when the Supreme Court has answered the speci fi c question

of whether Cronic —and not Strickland —applies, and the state

court has issued a decision contravening that answer. 28

U.S.C. § 2254(d)(1).

No Supreme Court decision holds that silence at sentenc

‐ ing by defense counsel triggers Cronic ’s presumption of prej

‐

udice. Three courts have declined Lewis’s invitation to apply

Cronic in this novel circumstance. Despite the stringent stand

‐

ards of AEDPA, our court accepts the invitation. This decision

avoids AEDPA’s confines and expands Cronic ’s scope, read

‐ ing it too generally and combining its exceptions. Review of

Lewis’s habeas petition should end with AEDPA, so I respect

‐ fully dissent.

I. AEDPA Review

AEDPA’s strict standard of review results in great defer

‐

ence to state courts. The grant of Lewis’s habeas petition lacks

the requisite precision under 28 U.S.C. § 2254(d)(1), neglectingNo. 20

‐ 1642 23

the critical importance of comity to our federal habeas system.

A. AEDPA’s Strictures

AEDPA deference is more than a judicial guidepost; it is a

Congressional mandate. See Woodford v. Garceau

, 538 U.S. 202,

206 (2003). “Section 2254(d) re fl ects the view that habeas cor

‐

pus is a ‘guard against extreme malfunctions in the state crim

‐

inal justice systems,’ not a substitute for ordinary error

correction through appeal.” Harrington v. Richter

, 562 U.S. 86,

102–03 (2011) (quoting Jackson v. Virginia

, 443 U.S. 307, 332 n.5

(1979) (Stevens, J., concurring in judgment)). By its plain text,

AEDPA precludes a federal court from granting a state pris

‐

oner’s habeas petition unless the state court’s merits adjudi

‐

cation “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[.]”

28 U.S.C. § 2254(d)(1) (emphases added). “If this standard is

di ffi cult to meet, that is because it was meant to be.” Harring

‐

ton

, 562 U.S. at 102.

Section 2254(d)(1)’s “contrary to” and “unreasonable ap

‐ plication of” clauses have independent meaning. Bell v. Cone

,

535 U.S. 685, 694 (2002); see also Williams v. Taylor

, 529 U.S. 362,

404–05 (2000). A federal court may grant habeas relief under

the “contrary to” clause “if the state court applies a rule dif

‐

ferent from the gov erning law set forth in our cases, or if it

decides a case di ff erently than we have done on a set of mate

‐ rially indistinguishable facts.” Cone

, 535 U.S. at 694. For exam

‐ ple, if a state court applies Strickland when it should apply

Cronic

, we may issue the writ as the state court judgment is

“contrary to” Supreme Court precedent. Cf. id. at 698 (reject

‐ ing a petitioner’s claim that Cronic

, not Strickland

, should ap

‐ ply and noting “we fi nd no merit in respondent’s contention24 No. 20

‐ 1642

that the state court’s adjudication was contrary to our clearly

established law” (emphasis added)). Under the “unreasona

‐

ble application of” clause, a federal court may grant habeas

relief “if the state court correctly identi fi es the governing legal

principle from our decisions but unreasonably applies it to

the facts of the particular case.” Id. at 694. So if a state court

applies Strickland to the facts of a case “in an objectivel y un

‐

reasonable manner[,]” we may issue the writ. Id. at 699.

Under either clause of § 2254(d)(1), a petitioner’s habeas

claim is measured against the last reasoned state

‐ court deci

‐

sion on the merits. Wilson v. Sellers

, 138 S. Ct. 1188, 1192 (2018).

To grant relief, that state court’s decision must be “contrary

to” or an “unreasonable application of” Supreme Court prec

‐

edent, not our own. Glebe v. Frost

, 574 U.S. 21, 24 (2014) (per

curiam) (“[C]ircuit precedent does not constitute ‘clearly es

‐

tablished Federal law, as determined by th e Supreme Court.’”

(quoting 28 U.S.C. § 2254(d)(1)).

Standing alone, AEDPA exudes deference. But for ine ff ec

‐

tive assistance of counsel claims, “[t]he federal courts as a

whole engage in ‘doubly deferential’ review” under AEDPA.

Wilborn v. Jones

, 964 F.3d 618, 620 (7th Cir. 2020), cert. denied

,

No. 20

‐ 913, 2021 WL 666799 (U.S. Feb. 22, 2021) (quoting

Knowles v. Mirzayance

, 556 U.S. 111, 123 (2009)). We layer def

‐

erence upon deference in these cases because federal courts

must give “both the state court and the defense a tt orney the

bene fi t of the doubt.” Burt v. Titlow

, 571 U.S. 12, 15 (2013).

Even without AEDPA, ine ff ective assistance of counsel claims

remain di ffi cult to prove as “counsel is strongly presumed to

have rendered adequate assistance and made all signi fi cant

decisions in the exercise of reasonable professional judg

‐

ment.” Strickland

, 466 U.S. at 690. “That hill is even steeper”No. 20

‐ 1642 25

for claims governed by AEDPA. Myers v. Neal

, 975 F.3d 611,

620 (7th Cir. 2020). As the Supreme Court said recently,

AEDPA takes on a “special importance” when a state prisoner

asserts the ine ff ectiveness of his counsel. Shinn v. Kayer

, 141 S.

Ct. 517, 523 (2020).

B. The Majority Opinion’s Application of AEDPA

The majority opinion holds that the Court of Appeals of

Indiana’s decision in Lewis v. State

, 116 N.E.3d 1144 (Ind. Ct.

App. 2018) ( Lewis II ), is both “contrary to” and an “unreason

‐

able application of” Supreme Court precedent under

§ 2254(d)(1). In its only speci fi c reference to the text of that

standard, it states: “We conclude that the decision of the last

responsible state court was contrary to Supreme Court prece

‐

dent, insofar as it held that Strickland

, not Cronic

, furnished

the applicable rule, and it was an unreasonable application of

Cronic

, insofar as it focused on that case.” Majority Op. at p. 2

(footnote omi tt ed). But these clauses are distinct, with each

having indepen dent meaning. Cone

, 535 U.S. at 695 (“[Section]

2254(d)(1)’s ‘contrary to’ and ‘unreasonable application’

clauses have independent meaning.”). Implicit within an “un

‐

reasonable application of” Supreme Court precedent is that

the state court applied the correct legal rule but did so unrea

‐ sonably to the facts at hand. Conversely, if a state court ap

‐ plies the incorrect rule, its decision is “contrary to” Supreme

Court precedent from the start and we need not reach the rea

‐ sonability of its application. For the majority opinion, Lewis II

is worthy of correction under both clauses.

AEDPA requires more precision. Cone teaches that if a

state court applies Strickland when it should apply Cronic (or

vice versa), that error implicates the “contrary to” clause of

§ 2254(d)(1). See Cone

, 535 U.S at 698. This is because “[f]or26 No. 20

‐ 1642

purposes of distinguishing between the rule of Strickland and

that of Cronic

, this di ff erence is not of degree but of kind.” Id.

at 697 (footnote omi tt ed). Admi tt edly, the Supreme Court has

not always followed this procedure when engaging with

Cronic

. Compare Wright v. Van Pa tt en

, 552 U.S. 120, 126 (2008)

(per curiam) (rejecting Cronic ’s application under the “unrea

‐

sonable application of” clause), with Woods v. Donald

, 575 U.S.

312, 317–18 (2015) (per curiam) (rejecting Cronic ’s application

under both the “contrary to” and “unreasonable application

of” clauses). That may be because, in these cases, the Supreme

Court has denied relief, not granted it. In other words,

whether a state court’s decision was “contrary to” or an “un

‐

reasonable application of” Supreme Court precedent did not

ma tt er. The petitioner’s claim failed either way. When a peti

‐

tioner’s claim succeeds, however, and a federal court on ha

‐

beas review overrules a state court’s decision, precision is a

must. Otherwise, we disregard AEDPA’s te xt and do not re

‐

spect the independent meaning of each clause. 1

To be sure, the “contrary to” clause might be an easier

path for a habeas petitioner than the “unreasonable applica

‐

tion of” clause. But see Williams

, 529 U.S. at 405 (“The word

‘contrary’ is commonly understood to mean ‘diametrically

1 The majority opinion collects several cases to support consideration

of the state court’s decision under both clauses of § 2254(d)(1). Maj. Op. at

p. 2 n.1. But among the cases cited are rulings that recognized the inde

‐ pendent meaning of each clause, even if the state court decision at issue in

the end viola ted both. In Bailey v. Rae

, the Ninth Circuit explained the dis

‐

tinct clauses, and gav e independent reasoning under each. 339 F.3d 1107,

1111–12, 1118–19 (9th Cir. 2003). Pazden v. Maurer is much the same. 424

F.3d 303, 311–12, 319 (3d Cir. 2005), as is Breakiron v. Horn

, 642 F. 3d 126,

131, 139 (3d Cir. 2011)

. To the extent these cases correctly state the law,

they recognize that the two clauses di ff er.No. 20

‐ 1642 27

di ff erent,’ ‘opposite in character or nature,’ or ‘mutually op

‐ posed.’” (quoting W EBSTER ’ S T HIRD N EW I NTERNATIONAL

D ICTIONARY 495 (1976)). An “unreasonable application”

means more than just error: “The question under AEDPA is

not whether a federal court believes the state court’s determi

‐

nation was incorrect but whether that determination was un

‐

reasonable—a substantially higher threshold.” Schriro v.

Landrigan

, 550 U.S. 465, 473 (2007). Or as this court has said,

“[w]e must deny the writ if we can posit arguments or theo

‐

ries that could have supported the state court’s decision, and

if fairminded jurists could disagree about whether those ar

‐

guments or theories are inconsistent with Supreme Court

holdings.” Kidd v. Lemke

, 734 F.3d 696, 703 (7th Cir. 2013). To

grant Lewis habeas relief under the “unreasonable applica

‐

tion of” clause, the state court’s application of Strickland

, not

Cronic

, mu st be unreasonable; that is how the Supreme Court

approached Cone

, and that is how to ensure the independent

meaning of the two clauses. See Cone

, 535 U.S. at 698.

Yet even if the state court unreasonably applied Cronic

, the

implication of the majority opinion is that no “fairminded ju

‐

rist could disagree” that Cronic should supplant Strickland

here. On direct review, four jurists disagreed with Cronic ’s ap

‐ plication; two more did so under AEDPA. 2 Although this nu

‐

merical disparity does not alone doom Lewis’s appeal, it

shows that under the majority opinion, this would be the only

court that has embraced Cronic

, doing so under both clauses

of § 2254(d)(1). If AEDPA is satisfied here, the clause under

2 One judge from the Allen County Superior Court, three judges from

the Court of Appeals of Indiana, one judge from the U.S. District Court for

the Northern District of Indiana, and myself.28 No. 20

‐ 1642

which the state court’s decision is purportedly incorrect

should be specified as one or the other.

Animating AEDPA’s strictness is a faith in comity.

“AEDPA recognizes a foundational principle of our federal

system: State courts are adequate forums for the vindication

of federal rights.” Titlow

, 571 U.S. at 19. Indeed, “AEDPA’s re

‐ quirements re fl ect a ‘presumption that state courts know and

follow the law.’” Woods

, 575 U.S. at 316 (quoting Woodford v.

Viscio tt i

, 537 U.S. 19, 24 (2002) (per curiam)). That means

“[w]hen reviewing state criminal convictions on collateral re

‐

view, federal judges are required to a ff ord state courts due

respect by overturning their decisions only when there could

be no reasonable dispute that they wer e wrong.” Woods

, 575

U.S. at 316. This is particularly so when state courts adjudicate

ine ff ective assistance of counsel claims:

Especially where a case involves such a common claim

as ine ff ective assistance of counsel under Strickland —a

claim state courts hav e now adjudicated in countless

criminal cases for nearly 30 years—“there is no intrin

‐

sic reason why the fact that a man is a federal judge

should make him more competent, or conscientious, or

learned

... than his neighbor in the state courthouse.”

Titlow

, 571 U.S. at 19 (quoting Stone v. Powell

, 428 U.S. 465, 494

n.35 (1976)). AEDPA review is so rigorous for Strickland claims

because comity demands it. See Calderon v. Thompson

, 523 U.S.

538, 555–56 (1998) (“Federal habeas review of state convic

‐

tions frustrates both the States’ sovereign power to punish of

‐

fenders and their good

‐ faith a tt empts to honor constitutional

rights.” (internal quotation marks omi tt ed)).No. 20

‐ 1642 29

Comity’s force here is not just in principle, but in practice.

The Indiana state courts have worked on Lewis’s case for

some time and have a signi fi cant interest in this litigation. In

2012, Lewis went to trial in the Allen County Superior Court

for his role in a crime commi tt ed 13 years earlier in 1999. Lewis

II

, 116 N.E.3d at 1148–50, ¶¶ 6–12. After his conviction and

sentencing, Lewis directly appealed, challenging the su ffi‐

ciency of the evidence against him. Lewis v. State

, 973 N.E.2d

110, No. 02A03

‐ 1201

‐ CR

‐ 18, 2012 WL 3777134 (Ind. Ct. App.

2012) (unpublished table decision) ( Lewis I ). In 2013, Lewis

fi led a pro se post

‐ conviction peti tion, and in 2016, post

‐ con

‐

viction counsel amended that petition. Lewis II

, 116 N.E.3d at

1150, ¶ 14. In 2017, the Allen County Superior Court held an

evidentiary hearing. Id. In 2018, that court, in a “lengthy or

‐ der[,]” denied Lewis relief and, as relevant in this appeal, also

rejected Cronic

. Id at 1150–53, ¶¶ 16–17

. In the decision at issue

here, Lewis II

, the Court of Appeals of Indiana a ffi rmed that

denial of relief later in 2018, id. at 1160, ¶¶ 45–46, with the

Indiana Supreme Court ultimately denying leave to transfer

in 2019. Lewis v. State

, 124 N.E.3d 41 (Ind. 2019) (unpublished

table decision). This procedural history shows that Lewis’s

case has received thorough consideration by various Indiana

courts, not to mention the district court here. AEDPA makes

clear “that state courts are the principal forum for asserting

constitutional challenges to state convictions.” Harr ington

, 562

U.S. at 103.

All of this is true even before accounting for the “special

importance” of AEDPA to ine ff ective assistance of counsel

claims adjudicated by state courts. Shinn

, 141 S. Ct. at 523. Ab

‐

sent from the majority opinion’s treatment of Lewis’s claim is

recognition of the “doubly deferential” nature of the review

this court must conduct. Mirzayance

, 556 U.S. at 123. Because30 No. 20

‐ 1642

“state courts know and follow the law[,]” Woods

, 575 U.S. at

316 (internal quotation marks omi tt ed), they understand that

the scope of Cronic has been signi fi cantly curtailed; indeed,

that is why they declined to apply it here. Lewis II

, 116 N.E.3d

at 1159, ¶ 43 (“We are not persuaded that Lewis’s claim falls

within one of the limited circumstances of extreme magnitude

that justify a presumption of ine ff ective ness under Cronic .”

(footnote omi tt ed)). All told, the type of claim the petitioner

makes requires him to overcome AEDPA, surpass Strickland

, and trigger Cronic

. That is quite the gauntlet. In fact, it is one

of the most doctrinally di ffi cult challenges a state prisoner can

make in this area of law. AEDPA’s text, along with its di

‐

rective of deference, instructs that we must give independent

meaning to each clause of § 2254(d)(1).

II. The Narrow Scope of Cronic

The Supreme Court and this court narrowly construe and

rarely apply Cronic

. The majority opinion expands Cronic ’s

scope and unsoundly combines its fi rst and second excep

‐

tions.

A. Cronic De fi ned

Cronic is a hard

‐ to

‐ meet exception to the already hard

‐ to

‐

meet standard of Strickland

. Under Strickland

, an ine ff ective

assistance of counsel claim requires a showing that the a tt or

‐ ney’s performance was not only de fi cient, but also prejudicial.

466 U.S. at 687. De fi ciency occurs when “counsel made errors

so serious that counsel was not functioning as the ‘counsel’

guaranteed the defendant by the Sixth Amendment.” Id.

Proving prejudice requires that “there is a reasonable proba

‐ bility that, but for counsel’s unprofessional errors, the result

of the proceeding would have been di ff erent.” Id. at 694.No. 20

‐ 1642 31

Strickland sets a high bar, which makes Cronic ’s presumption

of prejudice an appealing option for litigants. Cf. Padilla v.

Kentucky

, 559 U.S. 356, 371 (2010) (“Surmounting Strickland ’s

high bar is never an easy task.”).

With Cronic ’s strength, though, comes its rarity. See, e.g.

, Florida v. Nixon

, 543 U.S. 175, 190 (2004). Under Cronic

, courts

may presume prejudice only when there are “circumstances

that are so likely to prejudice the accused that the cost of liti

‐ gating their e ff ect in a particular case is unj usti fi ed.” 466 U.S.

at 658 (footnote omi tt ed). But even Cronic itself did not result

in this presumption of prejudice. Id. at 666. Instead, the Su

‐

preme Court in Cronic pronounced three exceptions to Strick

‐

land that permit the presumption of prejudice:

1. When there has been a “complete denial of coun

‐ sel[,]” because “a trial is unfair if the accused is denied

counsel at a critical stage of his trial.”;

2. “[I]f counsel entirely fails to subject the prosecution’s

case to meaningful adversarial testing, then there has

been a denial of Sixth Amendment rights that makes

the adv ersary process itself presumptively unrelia

‐

ble.”; and

3. “[W]hen although counsel is available to assist the

accused during trial, the likelihood that an y lawyer,

even a fully competent one, could provide e ff ective as

‐

sistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of

the trial.”

466 U.S. at 659–60 (footnote omi tt ed). When a defendant’s

case presents one of these three circumstances, Cronic is32 No. 20

‐ 1642

triggered, prejudice is presumed, and Strickland ’s second

prong is satis fi ed.

Cronic ’s narrowness derives not just from its result, but

from its reasoning. Whether called “illustrations,” “exam

‐ ples,” “circumstances,” “scenarios,” or “situations,” what

ma tt ers is that each operates as an exception to the onerous

Strickland standard, and that there are three—and only

three—of them. See, e.g.

, Cone

, 535 U.S. at 695 (identifying

“three situations implicating the right to counsel that in

‐

volved circumstances ‘so likely to prejudice the accused that

the cost of litigating their e ff ect in a particular case is unjusti

‐

fi ed’” (quoting Cronic

, 466 U.S. at 658)); Reynolds v. Hepp

, 902

F.3d 699, 705 (7th Cir. 2018) (same). That Cronic is triggered in

only three way s re fl ects the narrowness with which its pre

‐ sumption should be applied.

Recently, this court endorsed this understanding of Cronic

in Schmidt v. Foster

, an en banc decision declining under

AEDPA to presume prejudi ce when a trial judge conducted

an ex parte

, in camera examination without defense counsel’s

active participation. 911 F.3d 469, 478 (7th Cir. 2018) (en banc).

This court began its analysis in Schmidt by noting that Cronic

and its progeny “come with two caveats.” Id. at 479. First,

Cronic ’s presumption of prejudice is “narrow” and “arises

only when the denial of counsel is extreme enough to render

the prosecution presumptively unreliable.” Schmidt

, 911 F.3d

at 479. And second, because the Supreme Court has spoken

only generally about Cronic

, “the ‘precise contours’ of these

rights ‘remain unclear.’” Schmidt

, 911 F.3d at 479 (quoting

Woods

, 575 U.S. at 318). That means “[s]tate courts therefore

enjoy broad discretion in their adjudication of them.” Schmidt

,

911 F.3d at 479 (footnote and internal quotation marksNo. 20

‐ 1642 33

omi tt ed). Schmidt recognized the three exceptions of Cronic

and rejected applying the fi rst—“the complete denial of coun

‐

sel during a critical stage.” 911 F.3d at 478 & n.2, 480. Because

Schmidt’s counsel had assisted him before, during a recess,

and after the in camera examination, he did not su ff er the

“complete” deprivation of counsel necessary to presume prej

‐

udice under Cronic ’s fi rst exception, even though th e trial

court prevented his counsel from speaking during the in

chambers hearing. Id. at 480–85. 3

Although Schmidt ’s outcome may not control, and these

facts di ff er, this court’s reasoning is instructive. Bound by

AEDPA, this court engaged in a comprehensive examination

of Cronic and cases interpreting it to decide that “[n]o clearly

established holding of the Supreme Court mandate[d]” the

presumption of prejudice for an ex parte

, in camera examina

‐

tion without defense counsel’s active participation. 911 F.3d

at 481. In doing so, this court rejected an a tt empt to generalize

what, under AEDPA, must be speci fi c: “If we must take sev

‐

eral dissimilar decisions and reduce them to blanket princi

‐ ples in order to arrive at a general proposition applicable here,

the proposition is ‘far too abstract to establish clearly the spe

‐

ci fi c rule’ [petitioner ] needs.” Id. at 483–84 (quoting Lopez v.

Smith

, 574 U.S. 1, 6 (2014) (per curiam)). Relevant here, this

court also observed that “the Supreme Court has never ad

‐

dressed a case like [Schmidt’s].” Schmidt

, 911 F.3d at 485. So

“[w]ithout clearly established law mandating relief, we

[could not] grant it under AEDPA.” Id.

3 Schmidt assumed that the ex parte

, in camera examination was a “crit

‐

ical stage.” 911 F.3d at 480.34 No. 20

‐ 1642

B. Cronic Applied

The Supreme Court rarely applies Cronic

, and when it

does, it reads the decision narrowly. Since Cronic ’s advent

nearly 40 years ago, the Supreme Court has applied it only

once to presume prejudice. See Penson v. Ohio

, 488 U.S. 75, 88

(1988) (holding that “the presumption of prejudice must ex

‐

tend as well to the den ial of counsel on appeal” when the

granting of an a tt orney’s motion to withdraw had left the pe

‐

titioner “entirely without the assistance of counsel on ap

‐ peal”). Although the majority opinion is correct that the

Supreme Court recently cited Cronic in Garza v. Idaho

, 139 S.

Ct. 738, 744 (2019), the Supreme Court has not applied Cronic

to grant relief since Penson

.

This court has followed the Supreme Court’s lead, reading

Cronic narrowly and applying it rarely. See, e.g.

, Schmidt

, 911

F.3d at 479. Lewis musters only two cases where this court

applied Cronic ’s presumption on habeas review. Miller v. Mar

‐

tin

, 481 F.3d 468, 473 (7th Cir. 2007) (post

‐ AEDPA); Patrasso v.

Nelson

, 121 F.3d 297, 305 (7th Cir. 1997) (pre

‐ AEDPA). Other

circuit courts have taken this same guarded approach. See,

e.g.

, United States v. Roy

, 855 F.3d 1133, 1144 (11th Cir. 2017)

(en banc) (“The di ffi culty of carrying that ‘very heavy’ burden

and the ‘v ery narrow’ scope of the Cronic exception are evi

‐

dent from the fact that the Supreme Court has repeatedly re

‐

fused to fi nd it applicable.”).

Exceptions by their nature are narrow, so it is no surprise

that the Supreme Court has limited Cronic to the three de

‐

scribed above. See, e.g.

, Cone

, 535 U.S. at 695. When the Court

has not speci fi cally listed the three exceptions, it has still de

‐

nied relief. See, e.g.

, Woods

, 575 U.S. at 317–18, 319. This court

has read Cronic the same way. See Schmidt

, 911 F.3d at 478 &No. 20

‐ 1642 35

n.2. Even in Miller

, when this court applied Cronic ’s presump

‐

tion, it did so within the three

‐ exception framework. Miller

,

481 F.3d at 472–73. Patrasso applied Cronic ’s second exception,

too. 121 F.3d at 303–05. Neither the Supreme Court nor this

court has adopted the broad reading of Cronic in the majority

opinion. For the majority opinion, “[a]lthough it is possible,

as the Supreme Court itself did in Cronic and as th e district

court here did, to identify particular circumstances in which

the Cronic rule will apply, we must take the Court at its word

when it says that it is simply o ff ering illustrations of the rule

announced by the Court.” Maj. Op. at p. 14. But the Court in

Cone and this court in Schmidt did not read Cronic so expan

‐ sively, as we recently acknowledged. Cf. Fayemi v. Ruskin

, 966

F.3d 591, 594 (7th Cir. 2020) (“We have been told not to extend

Cronic on collateral review.”).

If adopted in future cases, this broad conception of Cronic

could swallow Strickland ’s prejudice prong. For example, if

Cronic is read this broadly, several Supreme Court cases

should have come out di ff erently. Counsel would have trig

‐ gered Cronic by conceding guilt in a capital case ( Nixon ), fail

‐ ing to a ffi rmatively mount some case for life imprisonment in

a capital case’s penalty phase ( Cone ), and bei ng absent during

certain trial testimony concerning a codefendant ( Woods ).

That each request to presume prejudice in these cases failed

should give pause before applying such an expansive reading

of Cronic

.

Ev en where the majority opinion does engage with the

three exceptions, it makes general under Cronic what must be

speci fi c under AEDPA. The majority opinion combines

Cronic ’s fi rst and second exceptions. See Maj. Op. at p. 18 (“In

cases such as Lewis’s, there is thus no operative di ff erence36 No. 20

‐ 1642

between the fi rst and the second of Cronic ’s examples.”). Ra

‐

ther than “nothing” turning on whether Cronic established

three exclusive categories, id

. at 17, its three exceptions have

independent meaning, like the two clauses of § 2254(d)(1). Cf.

Cone

, 535 U.S. at 685. Schmidt recognized this three

‐ exception

framework and rejected applying Cronic ’s fi rst exception for

complete denial of counsel at a critical stage. Schmidt

, 911 F.3d

at 478 & n.2, 480, 485. As we stat ed there, “only once in the

thirty

‐ plus years since Cronic has the Court applied the pre

‐ sumption of prejudice it described in a critical

‐ stage case.” Id.

at 479 (citing Penson

, 488 U.S. at 88). And in no case since

Cronic has the Supreme Court applied the presumption of

prejudice described in the second exception. 4 Yet despite the

strictures of AEDPA, the rarity of Cronic

, and the narrowness

with which that case has been applied, the majority opinion

fi nds Lewis’s claim strong enough to fi t both exceptions.

This court should not backtrack from the understanding

of Cronic endorsed in Schmidt

. According to the majority opin

‐

ion, Schmidt di ff ers in its “critical stage” and “degree of help

that counsel o ff ered.” Maj. Op. at pp. 15, 17. But Schmidt ’s rel

‐

evance here is in its mode of analysis. That en banc decision

teaches three lessons about Cronic : it is narrow in its rule

, it

gives state courts “broad discretion” in adjudicating the ap

‐ plication of its exceptions, and it has three—and only three—

exceptions. Schmidt

, 911 F.3d at 478 & n.2.

These lessons led this court in Schmidt to address that

Cronic

‐ based habeas petition with the requisite particularity

under AEDPA. Generalizing Cronic did not win the day there

4 No Supreme Court case since Cronic appears to have applied its third

exception, either.No. 20

‐ 1642 37

and should not do so here. Id. at 483–84 (“If we must take sev

‐

eral dissimilar decisions and reduce them to blanket princi

‐ ples in order to arrive at a general proposition applicable here,

the proposition is far too abstract to establish clearly the spe

‐

ci fi c rule [petitioner] needs.” (internal quotation marks omit

‐ ted)). As AEDPA required, Schmidt considered whether the

Supreme Court had ever addressed a claim like that raised by

the petitioner. It had not, so this court denied relief. Id. at 485.

Because the same is true here, Schmidt should guide us to re

‐ ject Lewis’s habeas petition.

III. Supreme Court Treatment of Cronic and AEDPA

The Supreme Court has never confronted the novel cir

‐

cumstances presented by Lewis’s claim. That should be

enough to preclude habeas relief under AEDPA. The majority

opinion emphasizes one case— Cone

, where the Supreme

Court declined to presume prejudice—at the expense of the

rest of Cronic ’s progeny.

A. What AEDPA Means for Cases Invoking Cronic

Looking through AEDP A’s lens, we may grant habeas re

‐

lief only when the Supreme Court has answered the “speci fi c

question” of whether Cronic —and not Strickland —applies and

the state court has issued a decision “contrary to” this answer.

Woods

, 575 U.S. at 317 (quoting Lopez

, 574 U.S. at 6); 28 U.S.C.

§ 2254(d)(1).

Lewis cannot meet this heavy burden imposed by

AEDPA. A direct appeal would be a lighter lift, as it would

turn on whether his lawyer’s silence at sentencing fell within

Cronic

. AEDPA, however, constricts our review and requires

that we ask whether th e Supreme Court has held that silence

at sentencing triggers the presumption of prejudice—the38 No. 20

‐ 1642

“specific question.” Woods

, 575 U.S. at 317 (internal quotation

marks omitted). This difference is dispositive: A tour through

four Supreme Court cases addressing Cronic

— Cone

, Nixon

,

Van Patten

, and Woods —demonstrates that the Supreme Court

has never presumed prejudice based on the type of claim

Lewis brings. That is “[a]ll that matters here[.]” Id. at 319.

Time and again, the Supreme Court has declined to apply

Cronic

. In Cone

, the Court considered and rejected an argu

‐

ment that Cronic’s second exception for lack of meaningful ad

‐

v ersarial testing applied when counsel failed to “mount some

case for life [imprisonment]” in a capital case’s penalty phase.

Cone

, 535 U.S. at 696 (internal quotation marks omi tt ed). In

Nixon

, the Court, outside the strictures of AEDPA, again re

‐ jected application of Cronic ’s second exception by holding

that a concession of guilt in a capital case “does not rank as a

failure to function in any meaningful sense as the Govern

‐

ment’s adversary.” Nixon

, 534 U.S. at 190 (quoting Cronic

, 466

U.S. at 666 (footnote omi tt ed)). 5 In Van Pa tt en

, the Court de

‐

nied Cronic ’s fi rst exception because its own precedents “do

not clearly hold that counsel’s participation by speakerphone

should be treated as a ‘complete denial of counsel,’ on par

with total absence.” Van Pa tt en

, 552 U.S. at 125. And in Woods

,

the Court’s most recent engagement with Cronic

, it avoided

presuming prejudice, without mentioning a speci fi c excep

‐

tion, because it had “never addressed whether the rule

announced in Cronic applies to testimony regarding code

‐

fendants’ actions”—as in whether counsel’s absence during

5 The standard the majority opinion quotes when invoking Cronic to

grant relief is from Nixon

, 543 U.S. at 189. Maj. Op. at pp. 1, 14. The Court

in Nixon declined to presume prejudice under Cronic

. Nixon

, 543 U.S. at

190.No. 20

‐ 1642 39

that testimony triggers the presumption of prejudice. Woods

,

575 U.S. at 317.

The Supreme Court has been reluctant to presume preju

‐

dice under Cronic

. We should be as well. Of course, rare does

not mean never. What ma tt ers under AEDPA is that the Court

has never answered, let alone a ffi rmatively, the question of

whether silence at sentencing by defense counsel triggers

Cronic

. See Va n Pa tt en

, 552 U.S. at 126 (“Because our cases give

no clear answer to the question presented, let alone one in Van

Pa tt en’s favor, it cannot be said that the state court unreason

‐ ably applied clearly established Federal law.” (alterations and

internal quotation marks omi tt ed)). This is so regardless of the

clause unde r which the majority opinion proceeds. See Woods

,

575 U.S. at 317 (“Because none of our cases confront the spe

‐

ci fi c question presented by this case, the state court’s decision

could not be contrary to any holding from this Court.” (inter

‐

nal quotation marks omi tt ed)). As the Court said in its last en

‐

gagement with Cronic under AEDPA, “[a]ll that ma tt ers here,

and all that should have ma tt ered to the Sixth Circuit, is that

we have not held that Cronic applies to the circumstance s pre

‐

sented in this case. For that reason, federal habeas relief based

upon Cronic is unavailable.” Id. at 319. So it is here for this

court.

B. Correctly Applying AEDPA to Cronic in this Case

Under either clause of § 2254(d)(1), the majority opinion’s

broad reading of Cronic cuts against applying it on these facts.

Such expansive treatment of Cronic comes closer to de novo

review, which AEDPA does not permit.

Lewis II is neither “contrary to” nor an “unreasonable ap

‐ plication of” Supreme Court precedent concerning Cronic

. To40 No. 20

‐ 1642

implicate the “contrary to” clause, a state court decision must

apply the wrong legal rule or deviate from a factually indis

‐ tinguishable case. See Cone

, 535 U.S. at 694. If the majority

opinion proceeds under that clause, it commits the same er

‐

rors the Supreme Court corrected in Woods

, 575 U.S. at 317

(noting that the Sixth Circuit’s application of Cronic was “dou

‐ bly wrong”). First, as in Woods

, the majority opinion relies

upon cases that are only “similar to” Supreme Court prece

‐

dent, which means “the state’s court’s decision is not ‘con

‐

trary to’ the holdings in those cases.” Id. But the Sixth Circuit

in Woods at least had a ffi rmative case law to rely on. No ne of

the decisions cited in the majority opinion granted relief un

‐

der Cronic

. Second, the majority opinion “frame[s] the issue at

too high a level of generality.” Woods

, 575 U.S. at 318. As dis

‐

cussed, no Supreme Court case hold s that silence at sentenc

‐ ing triggers Cronic ’s presumption of prejudice. Cf., e.g.

, id. at

317–19; Van Pa tt en

, 552 U.S. at 124–26; Nixon

, 543 U.S. at

190

‐ 93; Cone

, 535 U.S. at 693–98; but see Penson

, 488 U.S. at

88

‐ 89. In sum, like the petitioner in Woods

, Lewis cannot show

that Lewis II wa s “contrary to” Supreme Court precedent.

The fate of Lewis’s claim is the same under the “unreason

‐

able application of” clause of § 2254(d)(1). Under that clause,

the broader the rule, the more room state courts have to apply

it. Yarborough v. Alvarado

, 541 U.S. 652, 664 (2004) (“The more

general the rule, the more leeway courts have in reaching out

‐

comes in case

‐ by

‐ case determinations.”). For our purposes,

the broader the majority opinion reads Cronic

, the more room

Lewis II has to apply it. Cf. Maj. Op. at p. 14. This means that

Lewis II must be “not merely wr ong” or “even clear error.”

Woods

, 575 U.S. at 316 (quoting Woodall

, 572 U.S. at 419). Ra

‐

ther, it must be so objectively unreasonable that noNo. 20

‐ 1642 41

“fairminded jurist” could reach its conclusion. Kidd

, 734 F.3d

at 703. The question then remains: Is Lewis II that wrong?

It is not. Given that the Supreme Court almost never ap

‐ plies Cronic

, the Court of Appeals of Indiana’s similar reti

‐

cence is reasonable. The majority opinion faults Lewis II for its

scant reasoning, despite the “broad discretion” conferred to

state courts interpreting Cronic

. Woods

, 575 U.S. at 318 (inter

‐

nal quotation marks omi tt ed). True, the state appeals court

could have said more. 6 But perhaps Lewis II ’s cursory treat

‐

ment of Cronic shows how obviously it does not apply. Cf.

White v. Woodall

, 572 U.S. 415, 427 (2014) (“[R]elief is available

under § 2254(d)(1)’s unreasonable

‐ application clause if, and

only if, it is so obvious that a clearly established rule applies to

a given set of facts that there could be no ‘fairminded disa

‐ greement’ on the question[.]” (quoting Harrington

, 562 U.S. at

103) (emphasis added)). The opposite does not hold true: It is

not “so obvious” that Cronic

, and not Strickland

, should apply

here. White

, 572 U.S. at 427.

Under either clause, the majority opinion’s analysis of

Lewis II comes closer to de novo review than the “doubly def

‐

erential” standard mandated under AEDPA for ine ff ective as

‐

sistance of counsel claims. Mirzayance

, 556 U.S. at 123; cf.

Harrington

, 562 U.S. at 101 (“Here it is not apparent how the

Court of Appeals’ analysis would have been any di ff erent

without AEDPA.”). In Lewis II

, the Court of Appeals of Indi

‐

ana considered, and rejected, L ewis’s assertion of Cronic ’s

6 Like the Indiana Court of Appeals, I also “note that Attorney Raff’s

lack of advocacy at the sentencing hearing appears to have been, at least

in part, invited by Lewis, who expressed clear disdain for counsel.” Lewis

II

, 116 N.E.3d at 1160 n.10, ¶ 43 n.10.42 No. 20

‐ 1642

second exception for lack for meaningful adversarial testing.

116 N.E.3d at 1159, ¶¶ 42–43 Ostensibly under AEDPA re

‐

view, the majority opinion nevertheless crafts a hybrid rule—

combining Cronic ’s fi rst and second exceptions—to cover

Lewis’s claim. See Maj. Op. at p. 18. For the majority opinion,

Cone supports this proposition: Lewis’s lawyer did less than

the lawyer in Cone, which means Cronic should apply. See id.

at pp. 18–21. But Cronic ’s trigger is not so general, and Cone ’s

lesson is not so simple. If Lewis is to secure relief, he must fi t

within one of Cronic ’s three exceptions, which Cone itself rec

‐ ognized. Cone

, 535 U. S. at 696.

What is more, Cone is not the only benchmark by which to

measure the merits of Lewis’s claim under Cronic

. The major

‐ ity opinion rejects Van Pa tt en and Woods because “Lewis does

not allege that his a tt orney was physically absent at any rele

‐

vant time. Neither Van Pa tt en nor Woods thus adva nces the

analysis here.” Maj. Op. at p. 11. But if only constructive ab

‐

sence cases were relevant to our analysis, then the majority

opinion would have li tt le, let alone recent, a ffi rmative

support. Herring v. New York

, 422 U.S. 853, 864–65 (1975) (pre

‐ suming prejudice when a state law barred summation of the

evidence); Ferguson v. Georgia

, 365 U.S. 570, 571, 596 (1961)

(presuming prejudice when a state law barred elicitation of

client’s trial testimony); see also Schmidt

, 911 F.3d at 481. In

‐

stead, Van Pa tt en and Woods serve as further examples of the

only thing that ma tt ers in this appeal: No Supreme Court case

has held that silence at sentencing by defense counsel triggers

Cronic

. On that ground, Lewis’s petition should fail.

IV. Conclusion

Cronic ’s scope is narrow, AEDPA review is narrow, and

AEDPA review of a Cronic case is especially narrow. BoundNo. 20

‐ 1642 43

by AEDPA, I would reject Lewis’s habeas petition because no

Supreme Court case has applied Cronic to the novel circum

‐

stances presented by his claim. I respectfully dissent.