UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee,

v.  No. 02-6277

FLEMING MACON PLEASANTS,

Defendant-Appellant. 

Appeal from the United States District Court

for the Eastern District of North Carolina, at Raleigh.

James C. Fox, Senior District Judge.

(CR-96-21, CA-98-917)

Argued: April 1, 2003

Decided: July 24, 2003

Before MICHAEL and KING, Circuit Judges, and

Terry L. WOOTEN, United States District Judge for the

District of South Carolina, sitting by designation.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: Joshua D. Rogaczewski, Student Counsel, Appellate Litigation Clinic, GEORGETOWN UNIVERSITY LAW CENTER,

Washington, D.C., for Appellant. Anne Margaret Hayes, Assistant

United States Attorney, Raleigh, North Carolina, for Appellee. ON

BRIEF: Steven H. Goldblatt, Director, Abigail V. Carter, Supervising Attorney, Martha R. Mora, Student Counsel, Appellate Litigation
Clinic, GEORGETOWN UNIVERSITY LAW CENTER, Washington, D.C., for Appellant. Frank D. Whitney, United States Attorney,

Raleigh, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Fleming Macon Pleasants seeks a Certificate of Appealability

(COA) to challenge the district court’s order denying his motion for

federal habeas relief. Specifically, Pleasants argues he was denied his

Sixth Amendment right to effective assistance of counsel and requests

that this Court set aside his conviction and remand for a new trial. As

explained below, we grant Pleasants’ COA but determine that the

District Court committed no reversible error. Accordingly, we affirm

the District Court’s dismissal. 

I.

On July 9, 1996, following a jury trial in the United States District

Court for the Eastern District of North Carolina, Pleasants was convicted of conspiracy to possess with intent to distribute cocaine and

marijuana, in violation of 21 U.S.C. § 846 (2000). On October 7,

1996, the District Court sentenced Pleasants to life in prison. Pleasants filed a timely notice of appeal. The Fourth Circuit Court of

Appeals affirmed the judgment of the District Court in an unpublished

opinion on December 8, 1997.1

On December 4, 1998, Pleasants filed a petition for habeas corpus

under 28 U.S.C. § 2255 in the District Court, claiming that he

1United States v. Pleasants, 131 F.3d 138 (4th Cir. 1997) (Unpublished). 

2 UNITED STATES v. PLEASANTS
received ineffective assistance of counsel. In particular, Pleasants

argued his trial counsel was ineffective by failing to object at trial to

the judge’s absence during closing argument and in failing to raise

this issue on direct appeal. The government filed a Motion to Dismiss

or for Summary Judgment on February 26, 1999. The District Court

granted the government’s summary judgment motion on November

27, 2001, denying Pleasants’ request for habeas relief. Pleasants

timely filed a motion for a COA pursuant to 28 U.S.C. § 2253(c) and

a notice of appeal from the District Court’s order. On February 19,

2002, the District Court denied Pleasants a COA. 

II.

Pleasants requests that this Court issue a COA under 28 U.S.C.

§ 2253(c). An appeal may not be taken from the final order in a

§ 2255 proceeding unless a circuit justice or judge issues a COA. 28

U.S.C. § 2253(c)(1)(2000). A COA will not issue for claims

addressed by a district court absent "a substantial showing of the

denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (2000). A

prisoner satisfies this standard by demonstrating that "reasonable

jurists could debate whether the petition should have been resolved in

a different manner or that the issues presented were adequate to

deserve encouragement to proceed further." Miller-El v. Cockrell, 123

S.Ct. 1029, 1039 (2003) (internal quotations omitted). Further, a

claim can be debatable even though "every jurist of reason might

agree, after the COA has been granted and the case has received full

consideration, that petitioner will not prevail." Id. at 1040. After

reviewing the record, we conclude that reasonable jurists could debate

Pleasants’ Sixth Amendment claim. Therefore, we grant Pleasants a

COA and address his claims on the merits. 

III.

To prevail on an ineffective assistance of counsel claim, a habeas

corpus petitioner must satisfy the two-pronged test of Strickland v.

Washington, 466 U.S. 668, 687 (1984). First, he must show "that

counsel’s performance was deficient," meaning that "counsel made

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

guaranteed the defendant by the Sixth Amendment." Id. Second, he

UNITED STATES v. PLEASANTS 3
must show "that the deficient performance prejudiced the defense."

Id. 

Under the Strickland analysis, an attorney’s performance is to be

measured by "reasonableness under prevailing professional norms."

Id. at 688. In applying the professional norms standard, the courts’

scrutiny of the performance of counsel must be "highly deferential,"

and courts "must indulge a strong presumption that counsel’s conduct

falls within the wide range of reasonable professional assistance." Id.

at 689. Additionally, counsel’s perspective at the time of the representation must be considered. Id. If a defendant is able to establish deficient performance, the prejudice prong requires a showing that "there

is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different." Id. at

694. 

Ineffective assistance of counsel claims present mixed questions of

law and fact and are reviewed de novo. United States v. DeTemple,

162 F.3d 279, 289 (4th Cir. 1998). 

IV.

At Pleasants’ trial, the government presented evidence supporting

the charges alleged in the indictment. Following the presentation of

the government’s case, Pleasants rested without offering any additional evidence. Prior to closing arguments by either the government

or defense counsel, the judge instructed the jury as follows:

Finally, let me say to you that during the course of the arguments, I may not be here at the bench. I may go into my

chambers and work on my charge, that is, instructions, or I

may work on or just tend to other matters. But if I leave the

bench, I will be in earshot, and if one of the lawyers should

object to something that the other one says, they know to

stop until I can come back into the courtroom and rule on

whatever the objections might be. 

(Suppl. J.A. at 497) According to the transcript, the Court then

referred to the assistant United States attorney for her closing argu4 UNITED STATES v. PLEASANTS
ment. At some point after recognizing government’s counsel, the

judge left the courtroom. At the conclusion of her closing argument,

Pleasants’ counsel began his closing argument. At the conclusion of

Pleasants’ closing argument, the transcript reflects that the Court called a fifteen minute recess. After the recess, the Court introduced

counsel for Pleasants’ co-defendant. At the conclusion of his argument, the Court again recognized the assistant United States attorney

for her rebuttal argument.2 The record on appeal indicates that no

objections were made by any party either prior to, during, or after

closing arguments were delivered. 

Pleasants argues that he was not afforded effective assistance

because his counsel failed to object to the trial judge’s absence during

closing arguments. To prevail on an ineffective assistance of counsel

claim, petitioner must first show that "counsel made errors so serious

that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 687. In support of his claim, Pleasants primarily argues that the trial judge’s

absence during a critical stage of the trial may have permitted the jury

to infer partiality against Pleasants that may have affected the jury’s

verdict. We find this argument unpersuasive. Pleasants’ counsel was

aware that it was common practice for this trial judge to leave the

bench during closing arguments. Counsel determined that an objection would likely be futile and could potentially damage their client.

Therefore, counsel made the tactical decision not to object. We cannot

conclude that counsel made an error so serious that he was not functioning as the counsel required by the Sixth Amendment. 

This Court addressed a similar occurrence in United States v. Love,

134 F.3d 595 (4th Cir. 1998). In Love, the appellant argued that under

Riley v. Deeds, 56 F.3d 1117 (9th Cir. 1995), the trial judge’s absence

from the courtroom constituted structural error and was, therefore,

reversible per se. The Love Court distinguished Riley3 and held that

2Pleasants submitted affidavits indicating that the trial judge left the

courtroom after introducing the assistant United States attorney and did

not return until the government was close to concluding its rebuttal argument. 

3

In Riley, a case factually distinguishable from this one, the trial judge

was absent and could not be located when the jury requested that they

UNITED STATES v. PLEASANTS 5
the trial judge’s absence from the courtroom was not structural error

because there was not a complete abdication of judicial control over

the process. In Love, as in this case, the judge instructed the jury that

he would be in his chambers and available to respond to any objections. Therefore, the Love Court found that the judge’s absence from

the courtroom during closing arguments was not structural error when

there was not a complete abdication of control over the proceedings.

Further, while the Love Court noted that it did "not condone the

absence of the trial judge from any phase of the trial proceeding,"

Love, 134 F.3d at 604, it concluded that any error was harmless. 

Pleasants attempts to distinguish the Love decision on the grounds

that the judge in that case was intermittently absent from the courtroom during argument, whereas in this case, the judge was absent

during his counsel’s entire argument. Pleasants contends that because

the judge was absent for his entire closing argument, the judge may

have given the impression to the jury that the defendant’s case had

less merit than or lacked the import of the government’s case. We

find this argument unpersuasive. This Court cannot conclude that

there is a factual distinction between the Love case and this case sufficient to warrant relief. 

Pleasants also argues that his case is less like Love and more like

United States v. Mortimer4 where the Third Circuit held that under the

facts of that case, a trial judge’s absence from the bench during closing arguments was structural error. In Mortimer, the defense counsel

had just begun her closing argument when the prosecutor made an

objection only to discover that the judge was no longer present. The

judge did not give any notice to the parties or the jury that he was

about to depart. The judge returned to the bench in time to thank the

defense counsel and call on the prosecutor for her rebuttal, but he

be allowed to re-hear certain parts of the testimony given at trial. The

judge’s law clerk presided over the proceedings and made the decision

to allow testimony to be read back to the jury and decided what portions

of that testimony should be presented. The Ninth Circuit Court of

Appeals held that there was a complete abdication of judicial control

over the process that resulted in a structural constitutional error requiring

reversal of the defendant’s conviction. 

4United States v. Mortimer, 161 F.3d 240 (3d Cir. 1998). 

6 UNITED STATES v. PLEASANTS
gave no explanation for his departure. The Third Circuit held that the

judge’s absence from the courtroom in that case was structural error

and remanded for a new trial. 

In the Mortimer opinion, the Court cited Love with approval for the

proposition that "structure normally stands if the parties consent to

excuse the presence of a judge." Mortimer, 161 F.3d at 241. In Pleasants’ case, as in Love, the judge instructed the jury that he may not

remain at the bench during closing arguments, but he would be available to rule on any objections. In Mortimer, the judge left without

notice to the parties. He was not present to rule on an objection made

by counsel for the government. Further, in Pleasants’ case, like Love,

the parties did not object to the judge’s instruction to the jury or to

his leaving the bench. The judge’s jury instruction and the opportunity given to the parties to object in the case at bar is more consistent

with Love and distinguishes it from Mortimer. For that reason, we

conclude that Pleasants’ case is more like Love where the court determined the judge’s absence from the courtroom was not structural

error. 

While we do not conclude that counsel was deficient in failing to

object to the judge’s absence, assuming counsel was deficient, Pleasants is unable to show that the deficient performance prejudiced his

defense. Pleasants has "not pointed to any specific comments made

in the district judge’s absence that affected the trial’s fairness," nor

has he specified any part of the government’s closing argument that

was properly subject to objection.5 Love, 134 F.3d at 605. Pleasants

has not made a sufficient showing that but for his counsel’s alleged

unprofessional errors, the result of the proceedings would have been

different. Further, Pleasants has failed to put forth sufficient evidence

to show that appellate counsel’s failure to raise this issue on appeal

was so deficient that it fell below the standard set forth in Strickland.

Therefore, the district court properly denied Pleasants’ § 2255

motion. 

5Pleasants also raised a claim of juror inattentiveness. Prior to exiting,

the trial judge admonished the jurors to pay attention during closing

arguments. Pleasants has failed to put forth sufficient evidence to show

that the judge’s absence prejudiced the defendant on this claim. 

UNITED STATES v. PLEASANTS 7
V.

In conclusion, we grant a COA as to Pleasants’ claim that his Sixth

Amendment right to effective counsel was violated. However, we

conclude that the District Court did not commit reversible error in dismissing Pleasants’ § 2255 claim. Accordingly, we affirm.

AFFIRMED

8 UNITED STATES v. PLEASANTS