In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 04-2349

ANTHONY D. DAVIS,

Petitioner-Appellant,

v.

JOHN R. VANNATTA,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Indiana, South Bend Division.

No. 03 C 301—Allen Sharp, Judge.

____________

ARGUED NOVEMBER 8, 2005—DECIDED FEBRUARY 9, 2006

____________

Before BAUER, MANION, and EVANS, Circuit Judges.

MANION, Circuit Judge. An Indiana jury convicted Anthony Davis of two counts of delivering cocaine. After

pursuing a direct appeal and seeking collateral relief in the

Indiana courts, Davis filed a petition for a writ of habeas

corpus in federal court asserting, among other claims,

that he was denied effective assistance of counsel. The

district court denied the petition. Davis appeals. We affirm.
2 No. 04-2349

I.

On February 21, 1994, Davis sold and delivered 13.863

grams of cocaine to an undercover officer. On February 23,

1994, Davis sold another 14.360 grams of cocaine to the

same officer. Based on these transactions, Davis was

charged with two counts of delivering over three grams of

cocaine in violation of Indiana Code § 35-48-4-1. In the

pretrial proceedings, four attorneys participated in Davis’s

defense, with none assuming principal responsibility before

trial. These unusual circumstances gave rise to Davis’s

claims of alleged ineffective assistance of counsel, and we

therefore recount in detail his attorneys’ actions before trial.

Following his arrest, Davis appeared for an initial hearing

on March 31, 1994. He stated that he intended to retain an

attorney with the help of his family. The judge instructed

Davis to have an attorney file an appearance within one

week. Since no attorney appeared for Davis by the status

conference on April 7, 1994, the judge appointed a public

defender to represent Davis. The following week, public

defender Brent Zook appeared with Davis at a bond

reduction hearing. The court took the request for bond

reduction under advisement and subsequently denied it,

leaving Davis in custody.

In an interview related to the request for bond reduction,

Davis indicated that he had contracted tuberculosis. On

April 28, 1994, Zook filed a request for a medical examination to test Davis for tuberculosis. Zook also requested a

continuance of the proceedings pending the results because

Zook was “especially susceptible to communicable diseases.” The judge granted the continuance and ordered the

examination, which subsequently came back negative for

tuberculosis. Public defender Neil Holbrook apparently

assumed Davis’s representation due to Zook’s health
No. 04-2349 3

1 In much of the record and prior decisions, attorney Borges’s

name is misspelled Borgess.

concerns, and filed a motion for a speedy trial on June 15,

1994. The court granted the motion and scheduled trial for

July 18, 1994. Holbrook also filed a motion for disclosure

of information regarding confidential informants and

undercover officers.

Meanwhile, Davis’s family sought counsel to defend

Davis. The family paid a $1,500 retainer to Chicago attorney

Ernesto D. Borges,1

 Jr., who was licensed only in Illinois. In

order to represent Davis in Indiana, Borges needed local

counsel. Before Borges obtained local counsel, he learned

that the family had independently retained Elizabeth D.

Tate as local counsel, paying her $4,000. Borges admitted

that he was “upset” because the family did not consult with

him regarding the choice of local counsel and because Tate

received more money. Borges assumed that since Tate

received more money and worked near the jail, she would

“take the lead on the case.” Borges and Tate filed an appearance and a motion to continue the trial on July 6, 1994.

Neither Borges nor Tate filed a motion in the next

five months. Davis, who remained in custody, filed a

grievance against Tate with the Indiana Disciplinary

Commission believing that Tate was inattentive to his case.

The grievance was dismissed, but Tate sought to withdraw from the representation due to a breakdown in the

attorney-client relationship. On December 22, 1994, the court

held a hearing on Tate’s motion to withdraw as counsel.

Davis orally opposed her withdrawal, noting that he had

insufficient funds to retain another local attorney. The court

also noted that Tate’s withdrawal would leave Davis

without required local counsel. The prosecutor, however,
4 No. 04-2349

indicated that Borges, who was absent from the hearing,

remained “lead counsel” and would be able to find substitute local counsel. The court permitted Tate’s withdrawal

and directed Davis to address his concerns of inattention

and the need for local counsel to Borges, “since he’s your

lead counsel.” In granting Tate’s motion to withdraw, the

court ordered Borges “to retain and have the appearance of

Indiana counsel filed within thirty (30) days.”

Because no local counsel filed an appearance by the

court’s deadline, the court scheduled a status conference for

February 23, 1995. Due to Borges’s conflicts, the

court adjourned the conference until March 2, 1995, and

then again until March 16, 1995. In scheduling the conference for March 16, 1995, the judge appointed Brent Zook

as “interim local counsel.” Borges appeared at the conference, along with Zook, Davis, and the prosecutor. Zook

moved to continue the trial date, which was then scheduled

to commence four days later on March 20, 1995. The court

granted the continuance, over the prosecutor’s objection.

Zook also requested an extension of the deadline for a plea

agreement, which was granted. Borges orally moved to

withdraw from the representation. The court took Borges’s

motion under advisement and scheduled a hearing for April

13, 1995, the deadline for a plea agreement.

Borges failed to appear at the next hearing, which was

rescheduled by the court for April 20, 1995. Apparently

because of his absence, the court summarily denied Borges’s

motion. The prosecutor stated that the parties had “reached

an impasse on a plea” and requested that the matter be

scheduled for trial. The court informed Davis of the deadline for a plea agreement:

The Court: You understand, Mr. Davis, that if

there is no agreement entered today,
No. 04-2349 5

I’m going to set this for trial. I will not

hereafter accept a plea bargain agreement?

The defendant: Yes.

The Court: Do you understand that?

The defendant: Yes.

Davis interjected a question at the end of the hearing, asking

if Borges was still on his case and stating that none of the

attorneys had been consulting with him or filing motions on

his behalf. The judge answered that Borges remained his

attorney and that he should address such matters with him.

The court set trial for October 23, 1995.

Zook moved for a continuance of the October trial date,

due to his assignment to a death penalty case. The motion

noted that Zook served “as local counsel, and is unsure of

the role he is to play” in the representation. As a public

defender, Zook could not serve with a retained attorney, yet

Borges had not withdrawn successfully or obtained substitute local counsel. The court granted the motion to continue

without comment, scheduling the trial for February 19, 1996.

As the trial date approached, Zook filed a motion to make

a prisoner available to testify in Davis’s defense. Zook

subsequently withdrew this motion.

On the morning of trial, Borges did not appear, having been detained in New York. Zook appeared and requested a continuance to enable Borges to serve as counsel

at trial. The judge informed Davis that if a continuance were

granted, “we’re into probably August or September before

we can reschedule for trial.” The record then indicates that

Davis discussed the issue with Zook, although the duration

and content of this discussion do not appear in the record.
6 No. 04-2349

Zook then informed the court that “we’ll withdraw the

Motion to Continue.” The judge then questioned Davis:

The Court: You feel that you’ve had adequate

time to talk to Mr. Zook regarding the

facts of your case?

The defendant: Not really; no, sir.

The Court: Well, it’s up to you. If you want a

continuance, I’ll grant it. That’s just a

fact of life where we’re going to be.

The defendant: I’m willing to work with Mr. Zook as

of right now.

The Court: Do you feel confident to go ahead,

Mr. Zook?

Mr. Zook: Yes, sir.

Thus, almost two years after he was initially detained, Davis

went to trial represented by the public defender, Zook. Zook

cross-examined the prosecution’s witnesses, but did not call

witnesses or present evidence in Davis’s defense. The jury

convicted Davis on both counts, and the court sentenced

Davis to forty years of incarceration on each count, to be

served concurrently.

New appointed counsel represented Davis on appeal.

Counsel filed a brief raising only the issue of ineffective

assistance of counsel. The Indiana Court of Appeals affirmed the conviction on May 2, 1997, and the Indiana

Supreme Court denied transfer on July 11, 1997. Davis

then filed a petition for post-conviction relief. The trial court

denied the petition, considering the ineffective assistance of

counsel claim barred by res judicata of the direct appeal, but

permitted Davis to proffer his own testimony as well as that

of Borges and Zook at an evidentiary hearing. The Indiana
No. 04-2349 7

Court of Appeals affirmed the denial of post-conviction

relief on October 3, 2002, and the Indiana Supreme Court

denied transfer on February 20, 2003.

Davis then filed a petition for a writ of habeas corpus in

federal district court pursuant to 28 U.S.C. § 2254 on May 8,

2003. In his pro se petition, he asserted various claims

including ineffective assistance of counsel and a violation of

due process. The district court denied the petition and

denied the request for a certificate of appealability. This

court granted a certificate of appealability, limited to the

issue of “whether Davis received constitutionally sufficient

assistance of counsel at trial and on direct appeal.” We also

appointed counsel for Davis and requested the parties to

“address any issues of procedural default.”

II.

We review the district court’s denial of the petition for a

writ of habeas corpus de novo. Balsewicz v. Kingston, 425

F.3d 1029, 1031 (7th Cir. 2005). Habeas corpus relief is

warranted only if the state court adjudication “ ’[1] 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’ or

[2] ‘resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’ ” Id. (quoting 28

U.S.C. § 2254(d)).

In this appeal, Davis asserts a claim of ineffective assistance of counsel. To demonstrate ineffective assistance of

counsel, a petitioner “must show that his counsel’s performance was deficient and that the deficient performance

prejudiced his defense.” Martin v. Grosshans, 424 F.3d 588,
8 No. 04-2349

590 (7th Cir. 2005) (citing Strickland v. Washington, 466 U.S.

668, 687 (1984)). In United States v. Cronic, 466 U.S. 648

(1984), however, the Supreme Court crafted three exceptions

to the prejudice requirement of Strickland. 466 U.S. at 659-60;

see also Bell v. Cone, 535 U.S. 685, 695-96 (2002). Specifically,

prejudice may be presumed if “(1) [ ] the accused is ‘denied

the presence of counsel at a critical stage’ in proceedings, (2)

[if] counsel ‘entirely fails to subject the prosecution’s case to

meaningful adversarial testing’ or (3) [if] ‘counsel is called

upon to render assistance under circumstances where

competent counsel very likely could not.’ ” Barrow v.

Uchtman, 398 F.3d 597, 603 n.4 (7th Cir. 2005) (quoting Bell,

535 U.S. at 695-96) (emphasis omitted). Davis seeks relief

under the Cronic exceptions in this appeal.

Respondent argues that Davis has procedurally defaulted

his claim. We need not reach the issue of procedural default,

however, since Davis’s claim fails on the merits. See Canaan

v. McBride, 395 F.3d 376, 387 (7th Cir. 2005). As noted, to

warrant a presumption of prejudice from his counsel’s

performance under Cronic, Davis must show a denial of

counsel at a critical stage of the proceedings, a failure by

counsel to subject the prosecution’s case to meaningful

adversarial testing, or circumstances in which competent

counsel is unlikely to be able to perform effectively. Barrow,

398 F.3d at 603 n.4; Cronic, 466 U.S. at 659-60. The Cronic

exceptions, however, are “narrow” and limited to “ ’circumstances that are so likely to prejudice the accused that the

cost of litigating their effect in a particular case is unjustified.’ ” Florida v. Nixon, 543 U.S. 175, 190 (2004) (quoting

Cronic, 466 U.S. at 658). Davis argues that prejudice should

be presumed because he proceeded to trial with allegedly

unprepared counsel and because no attorney represented

him during plea negotiations.
No. 04-2349 9

Regarding his representation at trial, even though Borges

arguably abandoned Davis, Zook continued to serve as

counsel. As the evidentiary hearing before the state trial

court demonstrates, Zook was an experienced public

defender who was familiar with the officer and drug

analysts who testified for the prosecution and with Davis’s

case. Zook’s contact with Davis began almost two years

before trial, at the bond reduction hearing. Zook had visited

Davis and, as trial approached, had filed a motion regarding

a potential witness. When the judge asked Zook if he felt

“confident to go ahead” on the morning of trial, he answered affirmatively. Although he had not planned on

beginning trial that day, the circumstances were not so

extraordinary that Zook’s efforts constituted a “denial” of

counsel; Zook did not “entirely fail to subject the prosecution’s case to meaningful adversarial testing.” Id. Furthermore, the circumstances were not so extraordinary that a

competent attorney familiar with the case and the witnesses

would be unable to perform effectively. Thus, the facts of

this case are not within the ambit of Cronic. Most critically,

Davis consented to proceeding with Zook on the day of

trial. The judge explicitly offered Davis a continuance to

enable him to proceed with the truant attorney Borges, but

Davis chose to proceed with Zook. The fact that the next

trial date might have been another six months in the future

does not undermine the voluntariness of his decision, which

was made after a conference with Zook. The assistance of

counsel that Davis received does not fall within the narrow

exceptions of Cronic.

Regarding the plea negotiations, the record similarly does

not demonstrate that Davis was denied counsel for plea

negotiations. The evidentiary hearing indicates that Borges

did discuss a plea with the prosecutor. The prosecutor

characterized the negotiations as having reached an im-
10 No. 04-2349

passe. Furthermore, the trial court explicitly warned Davis

that he would not entertain a plea agreement unless it was

finalized on that day of the hearing, at which Zook was

present. Davis stated that he understood and raised

no objection. Under the circumstances, a presumption of

prejudice under Cronic is not warranted. Since prejudice

is not presumed, and since Davis fails to demonstrate

prejudice, his claims of ineffective assistance of counsel

fail on the merits.

III.

Davis’s claims of ineffective assistance of counsel cannot succeed on the merits because the circumstances do

not warrant the application of Cronic and because he fails to

demonstrate prejudice. We therefore AFFIRM the district

court’s denial of the petition for a writ of habeas corpus.
No. 04-2349 11

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—2-9-06