PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ERIC DOMAIN GLOVER, 

Petitioner-Appellee,

v.

GERALDINE MIRO, Warden of  No. 00-7663 Allendale Correctional Institution;

CHARLES MOLONY CONDON, Attorney

General of the State of South

Carolina,

Respondents-Appellants. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Matthew J. Perry, Jr., Senior District Judge.

(CA-97-1020-4-10-BE)

Argued: May 10, 2001

Decided: August 15, 2001

Before WILKINSON, Chief Judge, and WIDENER and

MICHAEL, Circuit Judges.

Reversed and remanded by published opinion. Chief Judge Wilkinson

wrote the opinion, in which Judge Widener joined. Judge Michael

wrote a dissenting opinion. 

COUNSEL

ARGUED: Tracey Colton Green, Assistant Attorney General,

OFFICE OF THE ATTORNEY GENERAL, Columbia, South Caro-
lina, for Appellants. Thadeous Herbert Westbrook, III, NELSON,

MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South

Carolina, for Appellee. ON BRIEF: Charles M. Condon, Attorney

General, John W. McIntosh, Chief Deputy Attorney General, Donald

J. Zelenka, Assistant Deputy Attorney General, OFFICE OF THE

ATTORNEY GENERAL, Columbia, South Carolina, for Appellants.

William C. Wood, Jr., NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for Appellee.

OPINION

WILKINSON, Chief Judge: 

This case addresses whether defendant Eric Glover received constitutionally ineffective assistance of counsel. The district court found

that Glover had not proven actual prejudice under Strickland v. Washington, 466 U.S. 668 (1984). It nevertheless granted a writ of habeas

corpus to Glover under the per-se prejudice reasoning of United

States v. Cronic, 466 U.S. 648 (1984). Because Strickland v. Washington’s actual prejudice analysis applies to this case, and because

Glover cannot prove actual prejudice under the Strickland test, we

reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion. 

I.

On June 19, 1991, a South Carolina jury found Eric Glover guilty

of numerous counts resulting from the January 22, 1991 kidnapping

and robbery of Wayne Cooper. Based on Cooper’s description of his

assailant as well as other leads, police arrested Glover in Florida and

returned him to South Carolina. A grand jury indicted him on five

counts stemming from the January 22 incident — grand larceny, kidnapping, armed robbery, assault and battery with the intent to kill, and

possession of a firearm during the commission of a violent crime. 

Gordon Jenkinson, the public defender, originally represented

Glover. Jenkinson met briefly with Glover at the March 1, 1991 preliminary hearing. Glover proclaimed his innocence, and later wrote

2 GLOVER v. MIRO
Jenkinson a letter with a list of potential alibi witnesses who would

testify that Glover was in Florida on the date of the crime. Following

this meeting, however, Jenkinson resigned as public defender and his

cases were reassigned. 

The court ultimately assigned Glover’s case to Jerome Askins.

Askins received Glover’s file on June 17, 1991. Glover’s trial was

scheduled for the two week term of court beginning June 17. In addition to Glover’s case, Askins was also responsible for "fifty or sixty"

other assigned criminal cases during the term. 

Askins first met with Glover on June 17. During this first meeting,

Glover denied having committed the crimes. He again claimed he was

in Florida during the robbery. Glover provided Askins with the names

of approximately ten individuals whom he claimed would establish

his alibi. Askins contacted some of these people, but determined that

they would not provide any useful testimony. Askins said that he did

not contact the other witnesses identified by Glover. Askins also

reviewed Jenkinson’s notes and talked to the investigating officer. 

Glover’s trial was held on June 19, 1991. After the jury was

selected, but before it was sworn and outside its presence, Askins

moved for a continuance. He advised the court that he had been

unable to identify any witness who could establish an alibi defense on

behalf of Glover. The trial court denied the motion, stating that it

could not subpoena witnesses from Florida and that it had no assurance that any witnesses would attend the trial if it were rescheduled.

In reality, South Carolina law does allow criminal defendants to subpoena out-of-state witnesses. 

During the trial, the State presented five witnesses. The first witness, Preston Wilson, testified that he owned a trailer which he rented

to a tenant. On January 20, 1991, he went to the trailer where he conversed with an acquaintance of the tenant, Eric Glover. On crossexamination by Askins, Wilson admitted he had no personal knowledge about whether Glover committed any crime. 

The next, most important, witness was the victim, Wayne Cooper.

Cooper identified Glover as the ringleader in his kidnapping and robbery. According to Cooper, around 7:00 P.M. on January 22, he was

GLOVER v. MIRO 3
driving his mother’s 1980 white Thunderbird. Cooper stopped in a

grocery store where he struck up a conversation with a stranger.

While on the stand, Cooper identified Glover as the person with

whom he engaged in conversation. 

According to Cooper’s testimony, Glover and Cooper then chatted

about a variety of other matters, like the Super Bowl. Glover told

Cooper that he was from Florida, and that he had just arrived in South

Carolina. Glover and Cooper continued their conversation over

drinks. While paying for the alcohol, Cooper opened his wallet. Cooper was carrying a little over $500. Cooper testified that Glover had

an opportunity to observe the cash in Cooper’s wallet because Glover

was standing beside Cooper during the purchase. Cooper and Glover

then decided to visit some female friends of Glover’s. They drove to

the women’s house in Cooper’s Thunderbird. Glover introduced Cooper to the women as his friend. After about twenty minutes at the

house, Cooper wanted to leave. Cooper agreed to drop Glover off at

the grocery store where they met. 

Upon arriving, Cooper testified that Glover pulled a gun and told

Cooper that this was a "stickup." Glover forced Cooper into the backseat and repeatedly struck him in the face with the gun. At that point,

two other people joined Glover. They drove off with Cooper and

Glover still in the backseat. During the drive, Glover grabbed Cooper’s wallet. Glover continued to beat Cooper, thus preventing Cooper from seeing where he was being taken. Glover and his

accomplices finally arrived at a dirt road. They pulled the car to the

side of the road and checked to see if Cooper was still alive. After

assuring themselves that he was indeed alive, they stuffed Cooper in

the trunk and continued to drive. 

About five minutes later, the car stopped outside of a trailer.

Glover and the two others moved Cooper from the trunk to the trailer.

As Glover and his accomplices searched the Thunderbird, Cooper

escaped through the back door. Cooper ran to a nearby trailer home,

and was eventually taken to a hospital. 

Askins vigorously cross-examined Cooper, questioning him on the

time of the crime, the light outside when he observed Glover, the ease

with which Glover could have killed Cooper, what Cooper was doing

4 GLOVER v. MIRO
in the area, why Cooper could not identify the other two offenders

even though he saw them, and other inconsistencies in his testimony.

The State then called Betty Lou Coker, the woman who lived in the

other trailer home to which Cooper fled after he escaped. Coker testified that Cooper arrived at her mobile home around 8:30 P.M.

According to Coker, Cooper said that he had just been beaten up, that

his assailants had tried to kill him, and that they had taken his money.

During cross-examination by Askins, Coker admitted that she had

never seen Glover. Cooper’s father also testified for the State. He

confirmed that Cooper was driving the 1980 white Thunderbird on

January 22. Askins cross-examined Cooper’s father on a variety of

matters, including why Cooper was in town that night and whether the

father had any personal knowledge about the crime itself. 

The State finally called Officer Debra Collins. Collins testified that

she first saw Cooper in the hospital the night he was assaulted.

According to Collins, Cooper told her that "this guy pulled a gun on

him and made him get in the car against his will." Cooper could not

give the name of his assailant, but did provide a description of him.

He said that his attacker was between 5’5" and 5’6", weighed between

140 and 150 pounds, had a light complexion, and walked slightly

bowlegged. Cooper did not know the location of the trailer, except

that it was down a dirt road. 

Collins then told the jury that soon after conversing with Cooper,

she received a call from another officer who had found a white Thunderbird at a trailer off a dirt road. Officer Collins went to the location

and determined that the car was registered to Cooper’s mother. Collins also determined that Preston Wilson owned the trailer. Wilson

told Collins that nobody was supposed to be in the trailer because the

man renting it from him had already left town. Collins then entered

the trailer, where she found a note written to "Dear Grandmother" and

signed "Eric Glover." Askins cross-examined Collins on a variety of

issues. 

After the State rested, Askins asked the judge for a directed verdict.

Although the court denied the motion, it granted Askins’ motion to

reduce the charge of grand larceny to use of a vehicle without the

owner’s consent. Askins also consulted with his client and deterGLOVER v. MIRO 5
mined, after a lengthy discussion, that Glover did not want to testify.

The defense did not call any witnesses. During his closing argument,

Askins pointed out the inconsistencies in Cooper’s testimony. He also

noted that Cooper might be out to frame Glover. Askins argued that

the only person who could say that Glover actually did anything illegal was Cooper himself. Askins maintained that Cooper might have

been intoxicated or otherwise impaired that night. He also asked why

Cooper could not remember Glover’s name the night of the crime.

According to Askins, little things did not add up, and if the little

things were wrong, the "big things" could be wrong as well. Twice

before the verdict, the State offered Glover a plea. After consulting

with Askins, Glover decided to reject the plea offer. 

The jury found Glover guilty on all charges, although it found that

Glover committed the lesser included offense of assault and battery

of a high and aggravated nature as opposed to the more serious charge

of assault and battery with intent to kill. After the verdict, Askins

renewed his motion for a directed verdict and appealed to the judge

for leniency. Askins noted that Glover was only 18 at the time of the

crime, that he had no prior criminal history, that he maintained his

innocence throughout the trial, and that he had even rejected a plea

agreement because he was not going to plead guilty to anything he did

not do. The judge sentenced Glover to life in prison on the kidnapping

charge, ten years consecutive on the armed robbery charge, and lesser

concurrent sentences on the other charges. 

After the South Carolina Supreme Court affirmed his conviction,

Glover with a new attorney filed a motion for post-conviction relief

in state court. Glover contended that his trial counsel was ineffective

for failing to contact his alibi witnesses. At the hearing, Glover stated

that he was in Florida at the time of the crime. Glover told the court

that he had consistently maintained that he had been in Florida on

January 22, and that he asked his previous attorney, Jenkinson, to

contact his alibi witnesses. Glover stated that Willie Palmer could testify that he was in Florida on the night of January 22. Glover also

identified at least eight other witnesses who could place him in Florida during the day of January 22. He testified that he gave all these

names to his attorneys. 

The only alibi witnesses who appeared in court, however, were

Sandra Jordan and Sylvester Jordan. Sandra Jordan, Glover’s aunt,

6 GLOVER v. MIRO
testified that she saw Glover in Florida at approximately 8:00 A.M.

on January 22. Ms. Jordan named three other people who allegedly

saw Glover during the day of the 22nd, none of whom were present

at the hearing. Glover also called Sylvester Jordan, Glover’s grandfather. Mr. Jordan was asked on direct examination if Glover was in

Florida when the crime took place. Mr. Jordan responded by stating,

"He was in Florida when this took place as they say. I don’t know.

And I don’t think he did what they say he did." When asked by Glover’s lawyer for more information, Mr. Jordan repeatedly replied, "I

don’t know nothing." 

The state court granted Glover’s motion for a new trial on ineffective assistance grounds. A divided South Carolina Supreme Court

reversed, holding that Glover failed to establish a valid alibi defense

at his post-conviction hearing and thus failed to show prejudice under

Strickland v. Washington. See Glover v. South Carolina, 458 S.E.2d

538 (S.C. 1995). 

Glover then filed a petition for a writ of habeas corpus in federal

court. The magistrate judge granted summary judgment for the State

on three of Glover’s habeas claims, but permitted Glover to amend his

Petition to add a fourth ground for relief regarding sentencing. State

law at the time of sentencing set the maximum penalty for kidnapping

at thirty years, not life. The state conceded error, and agreed with the

limited grant of relief. On October 19, 2000, the district court granted

the writ on Glover’s second claim — ineffective assistance of counsel. The district court noted but did not address the petition’s other

three grounds for relief. South Carolina appeals. 

II.

In Strickland v. Washington, 466 U.S. at 668, the Supreme Court

set forth a two-part test for deciding ineffective assistance of counsel

claims. First, the defendant "must show that counsel’s performance

was deficient." Strickland, 466 U.S. at 687. To prove deficiency, a

defendant "must show that counsel’s representation fell below an

objective standard of reasonableness." Id. at 688. Second, the defendant must show that the deficient performance resulted in actual prejudice to the defendant. A showing of prejudice requires the defendant

GLOVER v. MIRO 7
to prove that "counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id. at 687. 

Strickland and its companion case United States v. Cronic, 466

U.S. at 648, gave more specific instructions on finding prejudice. The

Court stated that in certain limited contexts, "prejudice is presumed."

Strickland, 466 U.S. at 692. In Cronic, the Court identified three distinct situations in which a presumption of prejudice is appropriate.

First, prejudice is presumed when the defendant is completely denied

counsel "at a critical stage of his trial." Cronic, 466 U.S. at 659. Second, per-se prejudice occurs if there has been a constructive denial of

counsel. This happens when a lawyer "entirely fails to subject the

prosecution’s case to meaningful adversarial testing," thus making

"the adversary process itself presumptively unreliable." Id.

Third, the Court identified certain instances "when although counsel is available to assist the accused during trial, the likelihood that

any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial." Id. (citing Powell v.

Alabama, 287 U.S. 45 (1932)). A finding of per-se prejudice under

any of these three prongs is "an extremely high showing for a criminal defendant to make." Brown v. French, 147 F.3d 307, 313 (4th Cir.

1998). 

Absent these narrow circumstances of presumed prejudice under

Cronic, defendants must show actual prejudice under Strickland. See

Strickland, 466 U.S. at 692; Cronic, 466 U.S. at 666 and n.41. Actual

prejudice requires the defendant to "show that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different. A reasonable probability

is a probability sufficient to undermine confidence in the outcome."

Strickland, 466 U.S. at 694. 

Federal courts entertaining collateral attacks on state convictions

have only limited powers of judicial review. See Williams v. Taylor,

529 U.S. 362 (2000); Bell v. Jarvis, 236 F.3d 149, 157 (4th Cir. 2000)

(en banc). Under 28 U.S.C. § 2254(d)(1), this court may not grant a

writ of habeas corpus when a State court resolved the merits of a

claim unless the adjudication of the claim "resulted in a decision that

8 GLOVER v. MIRO
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) (Supp. IV 1998). 

In this case, Glover argues that the South Carolina Supreme

Court’s decision was contrary to clearly established Federal law

because it applied the actual prejudice standard of Strickland instead

of the per-se prejudice analysis of Cronic and Powell v. Alabama, 287

U.S. at 45. In the alternative, Glover maintains that the South Carolina Supreme Court’s decision was an unreasonable application of

clearly established Federal law because absent counsel’s errors, there

is a reasonable probability that the jury would not have returned a verdict of guilty. We address each argument in turn. 

III.

A.

Preliminarily, we may assume that Glover has satisfied the first

prong of the Strickland analysis by showing "that counsel’s performance was deficient." Strickland, 466 U.S. at 687. Cf. Glover v. South

Carolina, 458 S.E.2d at 539-40 (assuming that counsel’s representation fell below an objective standard of reasonableness). In this case,

Askins’ performance was not objectively reasonable. He failed to

contact certain witnesses even though Glover provided him with

names of potential alibi witnesses. He did not realize that a South

Carolina statute allowed criminal defendants to compel the attendance

of out-of-state witnesses necessary for the defense. Finally, Askins

did not even realize that the sentence for kidnapping in South Carolina had been amended from a maximum sentence of life in prison to

a maximum sentence of thirty years. Given these errors, combined

with the fact that the State does not contest that Askins’s performance

was deficient, we may turn to the issue of prejudice. 

B.

Glover contends that the South Carolina Supreme Court misapplied

clearly established Federal law by employing an actual prejudice test

instead of a per-se prejudice one. We disagree. 

GLOVER v. MIRO 9
1.

The facts do not come close to fitting within the first of Cronic’s

three criteria for per-se prejudice. Glover was not completely denied

counsel at a critical stage of the proceedings. At all relevant times, he

was represented by counsel. Jenkinson represented Glover at the preliminary hearing. Askins represented Glover from two days before

trial through at least the post-trial motions and sentencing. A finding

of per-se prejudice for complete denial of counsel requires at a minimum that no lawyer be present at a critical stage of the proceedings.

See Roe v. Flores-Ortega, 528 U.S. 470, 483 (2000) (citing Cronic,

466 U.S. at 659). Here, Askins’ presence at counsel’s table mandates

a finding that Glover was not actually denied the assistance of counsel.

2.

Second, Glover was not constructively denied the right to counsel.

Askins did not "entirely fail[ ] to subject the prosecution’s case to

meaningful adversarial testing" in such a way as to make "the adversary process itself unreliable." Cronic, 466 U.S. at 659. Askins acted

as Glover’s advocate at every step. He contacted some potential witnesses. He asked for a continuance. He vigorously cross-examined

witnesses. He questioned motives. He highlighted testimonial inconsistencies. He advised his client on possible plea deals. He pointed out

the flaws of the State’s case to the jury. He made a vigorous closing

statement. He asked the judge for a directed verdict both after the

State’s case and after the jury verdict. 

Furthermore, Askins was able to convince the judge to reduce one

charge against Glover from grand larceny to possession of a vehicle

without the owner’s consent. And he was able to convince the jury to

find a verdict of assault and battery of a high and aggravated nature

instead of assault and battery with intent to kill. Given these facts, we

cannot say that Glover was constructively denied the right to counsel.

This case is not one where the lawyer literally sleeps through the

State’s case or otherwise might as well be absent from the proceedings. Askins tested the State’s case at every juncture. He was an

active advocate for Glover. Askins fulfilled his role as defense attor10 GLOVER v. MIRO
ney by subjecting the State’s case against Glover to "the crucible of

meaningful adversarial testing." Id. at 656. 

It is true, as we have noted and as the State has conceded, that

Askins failed Strickland’s test of objectively reasonable performance.

But not every case of deficient performance under Strickland represents a constructive denial of the right to counsel. In fact, it will be

the rare claim of ineffective assistance that is tantamount to a constructive denial of counsel. Strickland remains the norm for ineffective assistance claims, and the Supreme Court has made clear that it

will not countenance a per-se prejudice exception which will swallow

the actual prejudice Strickland rule. See, e.g., Roe, 528 U.S. at 483;

Perry v. Leeke, 832 F.2d 837, 842-43 (4th Cir. 1987) (en banc). 

If we were to broaden the per-se prejudice exception to Strickland,

we would only add an extra layer of litigiousness to ineffective assistance law. To designate certain categories of cases as Cronic "constructive denial" cases and others as Strickland "deficient

performance" cases would promote a new threshold area of debate

and complicate the handling of this most common area of contention

on collateral review. For that reason perhaps, the Supreme Court

refused to apply a rule of per-se prejudice in Cronic itself. Ineffective

assistance is not the same thing as an absence of assistance. Because

Askins served as an advocate for Glover and tested the State’s case

through the adversarial system, Glover cannot show that he was constructively denied his right to counsel. 

3.

The third reason for finding per-se prejudice is if "the likelihood

that any lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial." Cronic, 466 U.S.

at 659-60. Since 1984, the time the Court articulated the tests for

actual and per-se prejudice in Strickland and Cronic, it has never once

found per-se prejudice under this third prong of Cronic. 

In Cronic, the Supreme Court confronted the issue of a young realestate lawyer who was allowed only 25 days of pretrial preparation

in a complex mail fraud case. See Cronic, 466 U.S. at 649. The Court

GLOVER v. MIRO 11
held that despite a limited time to investigate and prepare the case, the

limited experience of counsel, the gravity of the charge, the complexity of possible defenses, and the limited accessibility of witnesses to

counsel, a per-se rule of prejudice was not appropriate. See id. at 652,

663. 

Glover can point to only one case, Powell v. Alabama, in which the

Court has found a presumption of ineffectiveness based on the circumstances surrounding the defendant’s representation. See Powell,

287 U.S. at 45. Powell, decided in 1932, involved the infamous trial

of several African-American men who faced the death penalty for

raping a white woman on a train in Alabama. See Powell, 287 U.S.

at 49-50. The defendants in Powell were not asked "whether they had,

or were able to employ, counsel, or wished to have counsel

appointed." Id. at 52. Instead, the court appointed "‘all the members

of the bar’" as counsel for purposes of arraignment. Id. at 56; accord

Cronic, 466 U.S. at 660. On the day of the trial six days later, a lawyer from another state appeared, "but stated that he had not had an

opportunity to prepare the case or to familiarize himself with local

procedure." Cronic, 466 U.S. at 660. The court thus decided that the

out-of-state lawyer would represent the defendants "with whatever

help the local bar could provide." Id.

The Powell court recognized that the defendants in that case could

not have received the assistance of counsel given the circumstances

of the case. "The defendants, young, ignorant, illiterate, surrounded

by hostile sentiment, haled back and forth under guard of soldiers,

charged with an atrocious crime regarded with especial horror in the

community where they were to be tried, were thus put in peril of their

lives within a few moments after counsel for the first time charged

with any degree of responsibility began to represent them." Powell,

287 U.S. at 57-58. 

The circumstances of this case are nowhere close to Powell. Glover

attempts to rely on the limited contact that he had with his first attorney, Jenkinson, the limited time that Askins had to prepare Glover’s

case and to investigate the potential alibi witnesses, the fifty or sixty

other criminal cases for which Askins was responsible, and the severity of the crimes alleged in Glover’s indictment. These facts simply

do not strip the trial of all its integrity so that a per-se rule of preju12 GLOVER v. MIRO
dice is justified without resort to an examination of the actual circumstances of the case. 

Indeed, this court has already held that in a case involving similar

facts, a finding of per-se prejudice was not appropriate. See Griffin v.

Aiken, 775 F.2d 1226, 1229-30 (4th Cir. 1985). In Griffin, the defendant argued that several factors justified a presumption of ineffectiveness. These included "minimal pre-indictment investigation by

counsel," "continuous presence of counsel in court on other matters

in the three-day period between indictment and trial," "limited time

to talk with [the defendant] in the time period between the preliminary hearing and the morning of trial," and "the inability of counsel

appointed on the day before trial to present constitutional grounds for

the suppression of evidence since counsel had no knowledge of the

facts of" the defendant’s case. Griffin, 775 F.2d at 1229. Furthermore,

the defendant’s public defender had "between 100 and 140" other

cases pending at the same time. Id. at 1230. Nevertheless, this court

rejected the claim of per-se prejudice because "a review of the circumstances surrounding [the defendant’s] representation reveals to us

that in the same circumstances it was not unreasonable to expect that

a competent lawyer could render effective assistance of counsel." Id.

at 1230 (citing Cronic, 466 U.S. at 659-60). 

And this court has also held that counsel appointed the day after

indictment and the day of trial does not justify a finding of per-se

prejudice under Cronic. See Praylow v. Martin, 761 F.2d 179, 181-83

(4th Cir. 1985). In Praylow, we stated that "late appointment of counsel" fails to justify "a presumption of ineffective assistance of counsel." Id. at 183. 

We fail to see any materially distinguishable facts between this

case and Praylow and Griffin. Here, Askins was not appointed until

two days before trial, but he was able to spend some time on the case.

In Praylow, counsel was appointed on the same day as the trial. Here,

Askins had between fifty and sixty other cases, but counsel in Griffin

had between 100 and 140 other cases. In Griffin, counsel spent hardly

any time on the case and was in court on other matters continuously

in the three-day period between indictment and trial. This case, like

Praylow and Griffin, more closely resembles the facts of Cronic than

it does the facts in Powell v. Alabama. 

GLOVER v. MIRO 13
Indeed, the Supreme Court has long emphasized that late appointment of counsel does not ipso facto trigger a rule of per-se prejudice.

See Cronic, 466 U.S. at 661-62. In Chambers v. Maroney, 399 U.S.

42, 53 (1970), the Supreme Court held that it would not presume prejudice where counsel appeared in the case only a few minutes before

trial. The Court stated that it was "not disposed to fashion a per se

rule requiring reversal of every conviction following tardy appointment of counsel." Id. at 54. Thus reviewing courts must generally

regard trials, especially state trials on federal collateral review,

through a particularized and individualized lens rather than through

some broad-brush presumption of prejudice. Courts should not presume prejudice where the facts show otherwise, and Strickland has

the bedrock virtue of looking at prejudice to the defendant in each

case. We do not think the South Carolina Supreme Court violated any

clearly established law by applying the Strickland rule and thereby

serving the goal of individualized adjudication. Having found that

application of a per-se prejudice standard would be improper, we turn

to the question of whether Glover was actually prejudiced by Askins’

defense. 

C.

Glover must show that Askins’ errors sufficiently undermined confidence in the jury’s verdict. See Strickland, 466 U.S. at 694 (There

must be "a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome."). Glover maintains that the testimony of Sandra Jordan and Sylvester Jordan at the state post-conviction hearing

creates a "reasonable probability that the result of the proceeding

would have been different." Id. Like the district court, we disagree.

To begin with, the State presented strong evidence as to Glover’s

guilt. Wayne Cooper, the victim, testified how he spent over an hour

with Glover, how they talked about a variety of things, how they went

to meet friends of Glover’s, and how Glover robbed, beat, and kidnapped him. The State was not presenting a victim who had a fleeting

and transient exposure to the defendant. Cooper had more than ample

opportunity to determine precisely how the defendant looked, and he

recounted Glover’s appearance to the police at the first opportunity.

14 GLOVER v. MIRO
Furthermore, the State established that Cooper’s car was found in

front of the Wilson trailer, where Glover had recently been seen. The

State also presented the testimony of Betty Lou Coker, who stated

that a badly beaten Cooper did indeed arrive at her trailer, which was

located near the Wilson trailer, on the night of January 22. 

After the jury verdict against Glover and the South Carolina

Supreme Court’s affirmance of it, the State gave Glover another

opportunity to present evidence of his innocence at the postconviction proceeding. At that hearing, Glover was ably represented

by counsel. Without any time constraints to produce witnesses,

Glover could present only his aunt, Sandra Jordan, and his grandfather, Sylvester Jordan. Neither could testify that Glover was in Florida

at the time of the crime. Sylvester Jordan could state only that "He

was in Florida when this took place as they say. I don’t know. And

I don’t think he did what they say he did." When pressed for more

information about Glover’s whereabouts on the night of January 22,

Mr. Jordan could state only, "I don’t know nothing." 

Sandra Jordan could testify only that Glover was in Florida around

8:00 A.M. on the morning of January 22, leaving ample time for

Glover to arrive in South Carolina by that evening. As the South Carolina Supreme Court stated, "Ms. Jordan’s testimony merely placed

[Glover] in Florida between 8:00 and 8:30 a.m. on the date the crimes

occurred. However, the crimes occurred in Williamsburg County over

eleven hours later at approximately 8:30 p.m." Glover, 458 S.E.2d at

540. Indeed, Ms. Jordan estimated that it took her about 6 hours to

drive from Florida to South Carolina. And while both Sandra Jordan

and Glover purported to identify other people who could support the

claim that Glover was in Florida on January 22, none appeared at the

hearing. The testimony of Glover (who chose not to testify at trial),

and of Mr. and Ms. Jordan standing alone, does not create a reasonable probability of a different outcome. As the South Carolina

Supreme Court noted, "[t]he failure to contact Sylvester or Sandra

Jordan did not result in prejudice to [Glover] as neither witness’s

[post-conviction hearing] testimony established an alibi defense."

Glover, 458 S.E.2d at 540. 

Moreover, nothing has cast doubt on Cooper’s testimony. None of

Glover’s witnesses could testify, for instance, that they saw Cooper

GLOVER v. MIRO 15
with a different person on the 22nd. And they could not establish any

reason why Cooper would be fabricating any part of his unfortunate

experience that night. In short, the evidence at the post-conviction

hearing failed to undermine confidence in the outcome of the trial.

Indeed, although the district court granted the writ on the per-se prejudice rule of Cronic, it found that Glover could not show actual prejudice under Strickland. We agree with the district court on this point.

Indeed, our fine dissenting brother makes no contention that this

defendant is innocent of any of the crimes with which he was

charged. The South Carolina Supreme Court’s finding of no actual

prejudice was not an unreasonable application of clearly established

Federal law. 

IV.

It is a cardinal principle of criminal justice that federal courts must

give state court convictions a significant measure of respect. In federal habeas cases, "deference to state-court findings is mandated by

28 U.S.C. § 2254(d)." Greene v. Georgia, 519 U.S. 145, 146 (1996)

(per curiam); see also Williams, 529 U.S. at 410. The South Carolina

Supreme Court applied the landmark Strickland decision to Glover’s

ineffective assistance of counsel claim and reasonably found an

absence of actual prejudice to the defendant. The state court ruling on

this point was a sound one, and a federal court has no basis for upsetting it. For the foregoing reasons, the judgment of the district court

is reversed and remanded for further proceedings consistent with this

opinion.

REVERSED AND REMANDED

MICHAEL, Circuit Judge, dissenting: 

Eric Glover, who was charged with kidnaping and other serious

crimes, was denied effective assistance of counsel in the summer of

1991, when the public defender system in Williamsburg County,

South Carolina, broke down completely. Nothing was done on Glover’s case until the third in a succession of lawyers was appointed to

represent him on June 17, 1991, two days before trial. Glover was

tried and sentenced to life in prison on June 19, 1991, before his new

lawyer had an opportunity to contact several potential alibi witnesses

16 GLOVER v. MIRO
who lived out of state. Because no lawyer could have effectively represented Glover in the circumstances, I would affirm the district

court’s award of the writ of habeas corpus. I therefore dissent,

respectfully. 

I.

Glover, who could not afford a lawyer, got trapped in the fallout

after the public defender in Williamsburg County, South Carolina,

resigned in 1991. Glover was arrested in Florida on January 24, 1991,

pursuant to a South Carolina warrant for his arrest on kidnaping and

armed robbery charges. He immediately waived extradition, and on

February 3, 1991, he was transferred to the jail in Williamsburg

County, South Carolina, to await further proceedings. It was not until

three and one-half weeks later, at his preliminary hearing on March

1, 1991, that Glover met with the public defender, Gordon Jenkinson,

for the first and only time. Jenkinson spent a very short time talking

to Glover about his case. Glover was able to convey to Jenkinson his

claim of innocence that was based on an alibi defense: Glover said

that he was in Florida on January 22, 1991, when the crimes for

which he was charged in South Carolina were committed. Glover told

Jenkinson about one alibi witness in particular, Willie Palmer, his

brother-in-law, who Glover says was with him in Florida during the

hours of the South Carolina crimes. Glover, who remained in jail,

wrote Jenkinson several letters listing other potential alibi witnesses

for Jenkinson to interview. Jenkinson never responded to any of

Glover’s letters, and he never contacted Glover after the preliminary

hearing on March 1, 1991. Apart from showing up at Glover’s preliminary hearing, it appears that Jenkinson did not do any work on his

case. In particular, Jenkinson did nothing to investigate Glover’s alibi

defense. 

Although Glover was never given any notice of the event, Jenkinson resigned as public defender sometime between Glover’s hearing

on March 1 and late May of 1991. Around the first of June all of the

public defender’s cases, numbering about 120, were assigned to two

Williamsburg County lawyers, Jerome Askins and William Pridgen.

The case load was to be divided, with each lawyer taking fifty or sixty

cases. Many of the cases would be called for trial during a two-week

term of court set to begin on June 17, 1991. In the meantime, the pubGLOVER v. MIRO 17
lic defender’s resignation had led to a huge backlog of preliminary

hearings. As a result, Askins and Pridgen spent the first two weeks

of June, from morning until evening each day, representing indigent

defendants in preliminary hearings. Because the term of court began

as soon as the preliminary hearings concluded, Askins and Pridgen

had no time to investigate the cases of other defendants, such as

Glover, who had their preliminary hearings earlier. 

As the defender’s cases were being divided, Glover’s case was first

assigned to Pridgen. Pridgen, however, discovered that he was already

representing one of Glover’s co-defendants, so he had to decline the

representation of Glover. It was not until Monday, June 17, 1991, the

first day of the term, that Glover’s case was finally assigned to

Askins. On that day Glover was brought to the Williamsburg County

Courthouse, presumably to answer his indictment for kidnaping,

armed robbery, and related charges. At that time Glover believed that

Jenkinson, the public defender, was still his lawyer and that Jenkinson

had subpoenaed the necessary witnesses. Glover was therefore puzzled when a man he had never seen before (Askins) came into the

holding room for prisoners, called his name, and told him that he

would be representing him. Glover quickly realized that Askins, who

had just received his file that day, knew nothing about his case. Yet

Glover’s trial was to start in two days, on June 19, 1991. 

At their meeting on June 17 Glover said to Askins, "I got witnesses

that can prove I didn’t do this." Glover identified ten persons in Florida who were potential witnesses, several of whom Glover said could

provide an alibi. The first witness Glover identified was Willie

Palmer, who Glover said was with him in Florida when the kidnaping

and other crimes occurred in South Carolina. 

Sometime on Monday, June 17, Askins began trying to contact the

potential witnesses in Florida, but he was not able to reach anyone

that day. Askins’s lack of success is understandable because he was

operating under several impediments. First, because the term of court

was under way and Askins was responsible for about sixty cases, he

could not leave the courthouse. Askins had to remain at the courthouse because, for the most part, he did not "know from day to day

or from hour to hour which case [would] be called or in what order."

Second, Askins did not have telephone numbers for most of the wit18 GLOVER v. MIRO
nesses, which, as he acknowledged, impeded his efforts "to try to

locate some of these people." Third, there were no pay telephones or

other convenient telephone facilities for lawyers in the Williamsburg

County Courthouse. As a result, Askins had to borrow a telephone

wherever he could find one, sometimes in the clerk’s office and sometimes in other offices. When a potential witness was not available to

take his call, Askins was not able to provide a handy number where

he could be reached for a callback. Fourth, Askins had no assistance

in his efforts to contact witnesses or otherwise to investigate Glover’s

case. In particular, Askins did not have access to an investigator or

the funds to hire one. 

On June 18, the day before trial, Askins was only able to contact

two of the ten persons on the Florida list, Glover’s father and stepmother. They, however, were never identified as alibi witnesses.

Finally, on the morning of trial Askins was able to talk to one of the

potential alibi witnesses from Florida, Roy Brown, who could not

provide any assistance. Thus, as trial began Askins had not contacted

(indeed, he was never able to contact) seven of the Florida alibi witnesses. Most notably, he did not contact Willie Palmer, the main alibi

witness identified by Glover. 

Because of his inability in the time available to get in touch with

potential alibi witnesses in Florida, Askins realized that Glover

"would be at a terrible disadvantage" if the trial went forward as

scheduled. Accordingly, Askins moved for a continuance. He advised

the court that he had not had the opportunity to talk with several Florida residents who, according to his client (Glover), could testify that

Glover was in Florida and was "not in South Carolina during the

times of these alleged offenses." The court denied the motion, noting

that it was "not going to continue the case based on Florida witnesses

the court has no jurisdiction over." Apparently, neither the court nor

Askins was aware that a defendant in a criminal case in South Carolina could subpoena out-of-state witnesses under the Uniform Act to

Secure the Attendance of Witnesses from Without a State in Criminal

Proceedings. See S.C. Code Ann. § 19-9-70; Fla. Stat. Ann. § 942.02.

Glover was forced to trial on June 19. The trial ended that same

day, and Glover presented no defense. After the jury returned a guilty

verdict at 6:36 p.m., the judge proceeded directly to post-trial motions

GLOVER v. MIRO 19
and sentencing. (All of these proceedings are reported in less than

three pages of transcript.) Askins moved for a new trial on the ground

that there had been insufficient time to contact witnesses in Florida.

The motion was denied. The judge then announced that the matter

was "ready for sentencing." The judge asked Glover four or five perfunctory questions, heard very briefly from Askins, and then sentenced Glover to life in prison plus ten years. Glover was nineteen

years old when he was sentenced. At that time neither the trial judge

nor Askins knew that shortly before Glover’s trial the South Carolina

kidnaping statute had been amended to change the penalty from a

mandatory life sentence to a term not to exceed thirty years. Compare

S.C. Code Ann. § 16-3-910 (Law. Co-op. 1985) with § 16-3-910

(Law. Co-op. Supp. 2000). 

The South Carolina Supreme Court affirmed Glover’s conviction

and sentence. Thereafter, Glover filed an application for postconviction relief in state court. After an evidentiary hearing the state

habeas court granted Glover a new trial, finding that he had "received

ineffective assistance of counsel due to the shortness of time between

counsel’s initial meeting with [Glover] and his trial only two (2) days

later." The court also found that Glover "was not afforded sufficient

time within which to contact potential witnesses." A divided (3-2)

South Carolina Supreme Court reversed on the ground that Glover

"failed to show [that] counsel’s action or inaction resulted in [actual]

prejudice." Glover v. South Carolina, 458 S.E.2d 538, 540 (S.C.

1995). Glover then filed a petition for a writ of habeas corpus in federal court in South Carolina. The district judge granted the writ after

concluding that Glover "was both actually and constructively denied

the assistance of counsel." I would affirm the order granting the writ

for the following reasons. 

II.

The Sixth Amendment right to counsel "guarantees an accused

‘adequate legal assistance.’" United States v. Cronic, 466 U.S. 648,

655 (1984) (quoting Cuyler v. Sullivan, 446 U.S. 335, 344 (1980)).

"Unless the accused receives the effective assistance of counsel, ‘a

serious risk of injustice infects the trial itself.’" Id. at 656 (quoting

Sullivan, 446 U.S. at 343). To establish ineffective assistance of counsel, a defendant must show (1) objectively deficient performance and

20 GLOVER v. MIRO
(2) prejudice. See Strickland v. Washington, 466 U.S. 668, 687

(1984). The majority readily concludes, and the state concedes, that

Glover meets the first element of the Strickland test because his lawyer’s "performance was not objectively reasonable." Ante at 9. The

question is whether Glover has established prejudice, and I am convinced that he has. Prejudice occurs when the lawyer’s substandard

performance "deprive[s] the defendant of a fair trial, a trial whose

result is reliable." Strickland, 466 U.S. at 687. As a general rule, a

defendant must show actual prejudice, but there are at least three situations when prejudice is presumed. See Cronic, 466 U.S. at 658-660.

One situation is when "the likelihood that any lawyer, even a fully

competent one, could provide effective assistance is so small that a

presumption of prejudice is appropriate without inquiring into the

actual conduct of the trial." Id. at 659-60. A presumption of prejudice

does not follow automatically from the "‘tardy appointment of counsel.’" Id. at 661 (quoting Chambers v. Maroney, 399 U.S. 42, 54

(1970)). However, when circumstances "make it unreasonable to

expect that counsel could adequately prepare for trial," a presumption

of prejudice is justified. Id. at 661-62. Specifically, prejudice may be

presumed when circumstances surrounding the short time available

for investigation and preparation make witnesses inaccessible to the

defense. See id. That is this case. 

The majority rejects Glover’s claim by saying that he seeks "some

broad-brush presumption of prejudice." Ante at 14. The picture that

Glover paints is not done with a broad brush. It portrays a set of circumstances that would render any lawyer — no matter how skilled —

incapable of providing effective assistance. The right to the effective

assistance of counsel includes the right to have one’s lawyer adequately investigate and prepare the case. See Powell v. Alabama, 287

U.S. 45, 57-58 (1932) (noting that "consultation, thoroughgoing

investigation and preparation [are] vitally important" in providing

effective representation). 

Due to a peculiar set of circumstances, Glover’s lawyer (Askins)

was assigned a backbreaking load of work that had to be done under

intolerable conditions in too little time. Sometime in the second quarter of 1991 the Williamsburg County, South Carolina, public defender

resigned, leaving about 120 indigent defendants without counsel. As

a two-week term of court was about to begin, during which many of

GLOVER v. MIRO 21
these cases would be called, Askins learned that he would be assigned

one-half (50 to 60) of the public defender’s cases. Askins was not

assigned Glover’s case until the first day of the term, Monday, June

17, which was just two days before trial. When Askins met with

Glover that Monday, he learned that Glover wished to assert an alibi

defense to the several charges, which included kidnaping. Glover

gave Askins a list of ten witnesses (most of them in the alibi category)

located in Florida. Glover was not able to provide telephone numbers.

To begin with, two days is not enough time to investigate and prepare an alibi defense based on witnesses who have never before been

contacted and who are out of state, several hundred miles away.

Askins’s problems of lack of time and distant witnesses were aggravated by other conditions. The term of court was under way, and

Askins could not leave the courthouse because he was responsible for

many cases in addition to Glover’s. As Askins acknowledged, he did

not know from hour to hour when some of his other cases might be

called. Askins did not have the assistance of an investigator, so he had

to try to contact the Florida witnesses by telephone from the courthouse. Because there were no telephone facilities available for lawyers, Askins had to borrow a telephone in the clerk’s office or in other

public offices as he attempted to locate the Florida witnesses. When

witnesses were not available at the time Askins called, it was difficult

for him to leave messages and request callbacks. It is little wonder

that Askins was not able to contact any witnesses on Monday and

only two on Tuesday (Glover’s parents, who were not alibi witnesses). It was not until Wednesday, the day of trial, that Askins

finally got in touch with one of the potential alibi witnesses, Roy

Brown, who could not help. The trial took place without Askins contacting the other alibi witnesses, including the main one, Willie

Palmer, who Glover says was with him in Florida when the crimes in

South Carolina occurred. 

With respect to the issue of witness availability, the state habeas

court determined that even if Askins had located the witnesses in

Florida, they would not have been available for trial. In the course of

two short days Askins would have had to contact the witnesses in

Florida, have subpoenas issued and served in Florida, arrange for the

witnesses to travel to South Carolina, and ultimately prepare them to

testify. The state habeas court therefore found — in a finding that was

22 GLOVER v. MIRO
not disturbed by the South Carolina Supreme Court — that "even if

[Askins] had contacted the witnesses who could have helped, they

could not get here in time from Florida as the case was due to commence" immediately. Glover, therefore, was denied access to his witnesses. 

Askins was not able to spend all of the two days between his

appointment and trial on Glover’s case. Certain of his other fifty or

sixty indigent cases demanded some of his time. As the district court

observed, "[c]ommon sense dictates . . . that substantial portions of

the brief time available to [Askins] during the two days . . . was dedicated to the other cases which were assigned to him." The workload

and time pressures not only prevented Askins from conducting a thorough factual investigation, they also kept him from doing the most

basic legal research. First, when Askins moved for a continuance, he

was unable to respond when the judge denied the motion on the

ground that the Florida witnesses were beyond the court’s subpoena

power. If time and circumstances had allowed for thorough research,

Askins would have known that the out-of-state witnesses were subject

to subpoena under the uniform act adopted by South Carolina and

Florida. Second, when the trial judge, within minutes of the guilty

verdict, sentenced Glover to life in prison on the kidnaping count,

Askins was unable to advise the judge that kidnaping no longer carried a mandatory life sentence. A review of the recent amendment to

the kidnaping statute would have revealed that kidnaping carried a

maximum term of thirty years. The sentencing error will be corrected,

but Askins’s inability to research the penalty for kidnaping confirms

that circumstances rendered him inherently incapable of providing

effective assistance. 

I respectfully disagree with the majority’s argument that the existing cases do not suggest that Glover is entitled to relief. Specifically,

the majority contends (1) that Glover’s case is "nowhere close" to

Powell v. Alabama, 287 U.S. 45 (1932), where the Supreme Court

presumed ineffective assistance based on the circumstances and (2)

that there are no "materially distinguishable factors" between Glover’s case and Griffin v. Aiken, 775 F.2d 1226 (4th Cir. 1985), and

Praylow v. Martin, 761 F.2d 179 (4th Cir. 1985), two cases where we

declined to presume prejudice. Glover’s case is not like Powell v. Alabama to the extent that he was not seized by a sheriff’s posse, placed

GLOVER v. MIRO 23
under guard of the militia, or arraigned and tried "in an atmosphere

of tense, hostile and excited public sentiment." Powell, 287 U.S. at

51. Glover’s case is like Powell v. Alabama, however, on the fundamental point that he was "not accorded the right to counsel in any

substantial sense" because his lawyer was unable to engage in "thoroughgoing investigation and preparation." Id. at 57, 58. 

Glover’s case is materially different from Griffin and Praylow.

Neither case involved a situation where defense counsel was unable

to contact potential witnesses or conduct a thorough investigation. In

Griffin the defendant’s lawyer was carrying between 100 to 140

cases, but he had nearly two months, not two days, to prepare the

case. During that time the lawyer was able to meet with the defendant

several times, employ an investigator, review the prosecutor’s files,

and interview several witnesses. This level of pretrial preparation, we

held, did not "justify a presumption of ineffective counsel." Griffin,

775 F.2d at 1230-31. In Praylow the defendant had two lawyers representing him, and he entered a guilty plea after talking with them

several times. Although one of the lawyers was not appointed to represent the defendant until the day of his guilty plea, the other lawyer

had been representing him on a related case for over seven months.

The two lawyers worked together on the case and conducted an adequate investigation. In these circumstances, we declined to presume

ineffectiveness. See Praylow, 761 F.2d at 183. In short, neither Griffin

nor Praylow stands in the way of a writ in this case. 

I am convinced that the South Carolina Supreme Court, in reversing the grant of the writ by the state habeas court, made "a decision

that was contrary to . . . clearly established Federal law, as determined

by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1).

The rule in Cronic is straightforward: circumstances giving rise to a

Sixth Amendment violation are present "when although counsel is

available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is

so small that a presumption of prejudice is appropriate without

inquiry into the actual conduct of the trial." Cronic, 466 U.S. at 659-

60. The circumstances here prevented Askins from conducting a thorough investigation of Glover’s case, especially his alibi defense. The

situation was so intolerable that no lawyer could have done the job.

Askins’s performance was deficient through no fault of his own, and

24 GLOVER v. MIRO
the circumstances impeding his ability to provide Glover effective

representation trigger a presumption of prejudice. The state habeas

court and the district court were therefore correct: the writ should be

granted.

GLOVER v. MIRO 25