IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20661

DESHUN THOMAS,

Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL 

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellee

Appeal from the United States District Court

for the Southern District of Texas

Before DAVIS, JONES, and ENGELHARDT, Circuit Judges.

EDITH H. JONES, Circuit Judge:

This court granted a certificate of appealability on habeas petitioner 

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

case to meaningful adversarial testing in violation of United States v. Cronic, 

466 U.S. 648, 104 S. Ct. 2039 (1984). Counsel was appointed for Thomas.

After reviewing the parties’ supplemental briefs, and finding no error in the 

federal district court’s rejection of that claim, we affirm.

I.

In 2006, after a second jury trial, a Texas jury convicted Thomas of 

aggravated robbery and sentenced him to seventy-five years’ imprisonment. 

During closing argument and sentencing, Thomas’s trial counsel, Ken McLean, 

United States Court of Appeals

Fifth Circuit

FILED

July 29, 2020

Lyle W. Cayce

Clerk

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acknowledged the strength of the prosecution’s evidence and indicated that 

Thomas deserved a “substantial sentence.” After his conviction and sentence 

were affirmed on direct appeal,1 Thomas filed a pro se habeas petition in state 

court, asserting, inter alia, ineffective assistance of counsel based on McLean’s 

statements during summation and sentencing. Thomas’s petition cited to both 

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984) and United 

States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039 (1984). The state district court 

denied Thomas relief in a reasoned opinion that tracked Strickland but did not 

expressly reference Cronic. The Texas Court of Criminal Appeals 

subsequently denied relief without written order, adopting the findings of the 

state district court.2

In 2014, Thomas filed the instant federal petition pursuant to 

28 U.S.C. § 2254, asserting, inter alia, that McLean’s statements at trial 

amounted to an abandonment of Thomas in violation of Cronic. Applying the 

deferential standards prescribed by the Antiterrorism and Effective Death 

Penalty Act of 1996, the federal district court denied Thomas relief. The court 

reasoned that Strickland, not Cronic, governed Thomas’s claim, and that, 

under Strickland, Thomas failed to show McLean was constitutionally 

ineffective or that Thomas was otherwise prejudiced. In 2018, another panel 

of this court granted a certificate of appealability solely on Thomas’s Cronic

1 An intermediate Texas appellate court affirmed the judgment on direct appeal. In 

so doing, however, it held that Thomas’s trial counsel’s closing arguments were professionally 

incompetent in violation of Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)

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

showing, pursuant to the other Strickland prong, of prejudice to Thomas.

2 That neither the state habeas court nor the TCCA addressed the state appellate 

court’s holding regarding deficiency is rather odd, but since we exercise discretion to review 

Thomas’s Cronic claim de novo, the discrepancy does not matter.

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claim3 and instructed the parties (after appointment of counsel for Thomas) to 

address whether that claim was exhausted and adjudicated in state court, and 

whether AEDPA applies.

II.

Thomas contends he exhausted his Cronic claim, but the state habeas 

court failed to adjudicate the claim on the merits. Thus, according to Thomas, 

the federal district court should have reviewed the claim de novo rather than 

applying AEDPA deference. The State now concedes that Thomas exhausted 

his claim. We therefore consider that issue waived and turn to the standard of 

review question. See 28 U.S.C. § 2254(b)(3); Bledsue v. Johnson, 188 F.3d 250, 

254 (5th Cir. 1999) (finding waiver when the State admitted that the petitioner 

“ha[d] sufficiently exhausted his state remedies”).

Under AEDPA, “we must defer to the state habeas court unless its 

decision ‘was contrary to, or involved an unreasonable application of, clearly 

established Federal law, as determined by the Supreme Court of the United 

States.’” Haynes v. Cain, 298 F.3d 375, 379 (5th Cir. 2002) (en banc) (quoting 

28 U.S.C. § 2254(d)(1)). But AEDPA only applies to claims that are 

“adjudicated on the merits” in the state habeas proceedings. Johnson v. 

Williams, 568 U.S. 289, 292, 133 S. Ct. 1088, 1091 (2013). If a claim is 

properly raised but is not adjudicated on the merits, we review the claim de 

novo. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir. 1997).

Thomas argues the state habeas court failed to adjudicate his Cronic

claim on the merits, thus triggering de novo review, because the court cast its 

decision in Strickland terms and failed to expressly reference the Cronic

standard. We presume the claim was adjudicated on the merits. See Johnson, 

3 Thomas did not brief the prejudice prong of Strickland on his appeal to this court, 

and consequently, that issue was waived. In any event, prejudice could not be shown on the 

record before us.

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568 U.S. at 301, 133 S. Ct. at 1096 (“When a state court rejects a federal claim 

without expressly addressing that claim, a federal habeas court must presume 

that the federal claim was adjudicated on the merits . . . .”). Although we are 

not entirely convinced that Thomas has rebutted this presumption,

4 Thomas’s 

Cronic claim fails even when reviewed de novo.

5

“Ordinarily, to prevail on an ineffective assistance of counsel claim, a 

habeas petitioner must satisfy Strickland’s familiar two-part test.” Haynes, 

298 F.3d at 380 (citing Strickland, 466 U.S. at 700, 104 S. Ct. at 2071). The 

petitioner must show that (1) counsel’s “representation fell below an objective 

standard of reasonableness”; and (2) “there is a reasonable probability that, 

but for counsel’s unprofessional errors, the result of the proceeding would have 

been different.” Strickland, 466 U.S. at 688, 694, 104 S. Ct. at 2064, 2068. 

Cronic created “a very limited exception to the application of Strickland’s twopart test,” whereby prejudice is presumed “in situations that ‘are so likely to 

prejudice the accused that the cost of litigating their effect in the particular 

case is unjustified.’” Haynes, 298 F.3d at 380 (quoting Cronic, 466 U.S. at 658, 

104 S. Ct at 2046). The Supreme Court has identified three such situations, 

one of which Thomas relies on here. See Bell v. Cone, 535 U.S. 685, 695, 

122 S. Ct. 1843, 1850 (2002). Specifically, prejudice is presumed when the 

“petitioner is represented by counsel at trial, but his or her counsel ‘entirely 

4 The allegations underlying Thomas’s relevant Strickland claim (that McLean 

conceded guilt during summation and argued for a substantial sentence) are identical to 

those underlying his Cronic claim. And the state habeas court’s reason for denying the 

Strickland claim (that McLean’s statements were strategic) explains why the court did not 

apply Cronic. See Haynes, 298 F.3d at 381 (“[S]trategic or tactical decisions are evaluated 

under Strickland’s traditional two-pronged test for deficiency and prejudice.”). Thus, while 

the state court could have expressly stated that “Thomas’s Cronic claim fails for the same 

reason as his Strickland claim,” that finding seems implicit in its decision.

5 “Courts can . . . deny writs of habeas corpus under § 2254 by engaging in de novo 

review when it is unclear whether AEDPA deference applies . . . .” Berghuis v. Thompkins, 

560 U.S. 370, 390, 130 S. Ct. 2250, 2265 (2010).

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fails to subject the prosecution’s case to meaningful adversarial testing.’” 

Haynes, 298 F.3d at 380 (citing Cronic, 466 U.S. at 659, 104 S. Ct. at 2047).

Thomas argues he satisfies this exception based on McLean’s statements 

during summation and sentencing. We disagree. As Cronic suggests—and we 

have stressed—prejudice is not presumed unless an attorney entirely fails to 

defend his client. See Bell, 535 U.S. at 695, 122 S. Ct. at 1851. Thus, in 

Haynes, this court distinguished between “counsel’s failure to oppose the 

prosecution entirely” and counsel’s failure to do so “at specific points during 

trial.” 298 F.3d at 381. Prejudice is presumed only in the former scenario 

because “it is as if the defendant had no representation at all.” Id. In the same 

vein, Cronic applies to concessions only when they result in a “complete 

abandonment of counsel”; that is, the attorney must concede “the only factual 

issues in dispute.” Id. In contrast, particular strategic or tactical concessions,

such as those made to garner credibility with the jury at sentencing or on more 

severe counts, are subject to Strickland. Id.

Here, McLean did not entirely fail to subject the prosecution’s case to 

meaningful adversarial testing. As the district court detailed in its thorough 

opinion, McLean actively advocated on Thomas’s behalf throughout trial. He 

moved to suppress evidence. He cross-examined the State’s witnesses on their 

identification of Thomas as the culprit, ultimately impeaching several of them

and prompting the arguably most critical witness to admit she lied to the 

police. He also cross-examined the detectives involved in the underlying 

investigation on their search and arrest of Thomas, as well as their subsequent 

handling of evidence. 

Moreover, McLean did not abandon Thomas by conceding the only 

factual issues in dispute. Faced with overwhelming evidence of guilt, McLean 

described the evidence as “really strong,” “substantial,” “persuasive,” and 

“pretty powerful” during his summation at the end of the guilt/innocence phase 

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of trial. But he also emphasized that the jury must look at the evidence and 

twice admonished them to acquit “if you have a reasonable doubt” about 

Thomas’s guilt. McLean pressed on the jury the weaknesses in the 

prosecution’s case, emphasized the high burden of proof, and pointed to several 

potential sources of reasonable doubt. When read in context, McLean’s 

summation indicates that his comments were strategically made to maintain 

credibility with the jury.

McLean’s sentencing arguments during the punishment phase confirm 

this strategy.6 Testimony during sentencing established that Thomas had an 

extensive criminal history, including nine felony and misdemeanor convictions, 

three of them following this crime, and he was likely involved in drug 

trafficking. This crime had devastating effects on the victim, who died from 

complications caused by his wounds after testifying at the first trial. The 

victim had survived, cared for by his mother, for several years in constant pain, 

endured at least eight surgeries resulting from Thomas’s actions, and 

ultimately succumbed to a morphine overdose. The prosecution was seeking a 

life sentence. 

Once again, to maintain credibility, McLean acknowledged these facts 

and stated that he “would be a fool if [he] suggested” that Thomas did not

“deserve[] a pretty substantial sentence” that was more than the minimum of 

fifteen years. McLean also successfully lodged objections during the 

prosecution’s argument:

[THE PROSECUTION]: Asking a jury for a life 

sentence is a big thing. And I recognize that. And it’s 

a tough thing. It’s a tough thing for any jury to do, but 

in this case, even you were looking at Deshun Thomas 

and saying, buddy, give me something, give me some 

6 McLean died after he tried this case and was never available for post-conviction 

inquiry into the defense.

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reason why you don’t serve the maximum punishment 

in this—

MCLEAN: Objection. That’s a comment on his failure 

to testify.

THE COURT: Sustained.

[THE PROSECUTION]: Show us something—

THE COURT: Again, get away from that. They are 

under no obligation to do anything.

And throughout the punishment phase, he continued to contest search issues 

raised previously at trial and extensively cross-examined a police officer on a 

more recent search. Ultimately, McLean’s strategy paid off: Thomas avoided 

a life sentence.

Cronic does not proscribe defense counsel’s approach. See 466 U.S. at 

656 n.19, 104 S. Ct. at 2045 n.19 (“Of course, the Sixth Amendment does not 

require that counsel do what is impossible or unethical. If there is no bona fide 

defense to the charge, counsel cannot create one and may disserve the interests 

of his client by attempting a useless charade.”). But more importantly, no 

Supreme Court case has applied Cronic to overturn a conviction solely because 

of counsel’s alleged trial errors. In Bell, for instance, the Court contrasted 

Strickland and Cronic, noting that those cases had been decided on the same 

day and that Cronic applied only when counsel’s failure to mount a meaningful 

defense was “complete.” 535 U.S. at 697, 122 S. Ct. at 1851. Counsel’s mere 

failure to oppose the prosecution’s sentencing case “at specific points” did not 

satisfy Cronic because the difference between that case and Strickland was a 

“difference . . . not of degree but of kind.” Id. Consequently, the Court held,

counsel’s “failure to adduce mitigating evidence and the waiver of closing 

argument”—during the sentencing stage of a capital case—“are plainly of the 

same ilk as other specific attorney errors we have held subject to Strickland’s 

performance and prejudice components.” Id. at 697–98 (collecting cases).

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Likewise, in Florida v. Nixon, the Court reiterated that Cronic is “a 

narrow exception” to Strickland. 543 U.S. 175, 190, 125 S. Ct. 551, 562 (2004).

The Court then observed that “just how infrequently” Cronic will apply was 

demonstrated in Cronic itself, where the Court refused to find such structural 

error based on a claim of prejudicially incompetent representation by an 

“inexperienced, underprepared attorney in a complex mail fraud trial.” Id.

7

Nevertheless, pointing to our en banc decision in Haynes, Thomas 

contends that Cronic applies because McLean’s statements do not qualify as a 

“partial concession.” In Haynes, we held Cronic inapplicable to an attorney’s 

strategic concession to a lesser-included offense in a multi-count indictment. 

See Haynes, 298 F.3d at 382. In reaching that conclusion, we recognized that 

“those courts that have confronted situations in which defense counsel 

concedes the defendant’s guilt for only lesser-included offenses have 

consistently found these partial concessions to be tactical decisions” and thus 

not subject to Cronic. Id. at 381.

Thomas attempts to distinguish this case from Haynes by arguing that 

he was facing one count, and McLean’s concession was therefore “full and 

complete.” As noted, however, McLean did not concede the only factual issues 

in dispute. In any event, Haynes was not so limited. “[T]he Supreme Court 

[has] held that even defense counsel’s full concession of guilt is not necessarily 

an indication that ‘counsel has entirely failed to function as the client’s 

advocate . . . .’” Barbee v. Davis, 728 F. App’x 259, 264 (5th Cir. 2018) 

(emphasis added) (quoting Nixon, 543 U.S. at 189–91, 125 S. Ct. at 560). 

Indeed, we have stated that “counsel may make strategic decisions to 

7 The Supreme Court’s more recent decision in McCoy v. Louisiana, 138 S. Ct. 1500 

(2018) is not to the contrary. McCoy held that counsel violates the Sixth Amendment by 

conceding a client’s guilt to the jury over the client’s objections. No issue was raised here 

about Thomas’s objecting to McLean’s approach in his summation and sentencing arguments.

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acknowledge the defendant’s culpability and may even concede that the jury 

would be justified in imposing the death penalty, in order to establish 

credibility with the jury.” Carter v. Johnson, 131 F.3d 452, 466 (5th Cir. 1997).

The common thread is strategy. McLean’s statements did not amount to 

a “complete” failure to mount a defense. Cronic does not apply.

For the foregoing reasons, the judgment of the district court denying 

habeas relief is AFFIRMED.

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