UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________

No. 95-20865

__________________

JOE DAVID CHILDRESS,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

______________________________________________

Appeal from the United States District Court for the

Southern District of Texas

______________________________________________

January 10, 1997

Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

Joe David Childress appeals the district court’s denial of

his petition for a writ of habeas corpus. Childress is serving a

term of twenty-five years in Texas state prison for leaving the

scene of an accident. He challenges the severity of his sentence,

arguing that his prison term was unconstitutionally enhanced based

on two burglary convictions secured in the late 1940s in violation

of his Sixth Amendment right to counsel. These convictions

preceded by many years the Supreme Court’s recognition that

defendants in state felony cases have the federal constitutional
 

1Sentence was imposed on January 3, 1992, and was affirmed by

the state court of appeals. Childress v. State, 845 S.W.2d 377

(Tex. App.-Houston [1st Dist.] 1992, rev. denied). For a summary

of the procedural history of the case, see id. at 378.

 

2See TEX. REV. CIV. STAT. ANN. art. 6701d, §§ 38, 40 (Vernon

1977) (current version codified at TEX. TRANSP. CODE ANN. §§ 550.021,

2

right to the assistance of counsel at all critical stages of the

prosecution.

Childress does not contend that he was entirely without an

attorney during his 1946 and 1948 plea hearings, nor that counsel’s

performance was ineffective within the meaning of Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

He claims instead that he received no meaningful assistance at all

from his court-appointed lawyer, and thus was constructively denied

his Sixth Amendment right to counsel. See United States v. Cronic,

466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Consequently,

Childress maintains that the use of these prior convictions to

enhance his current sentence was unconstitutional.

BACKGROUND

Childress was arrested in February 1986 after the pick-up

truck he was driving struck and killed a pedestrian, Guiditta

Mafrica Serrano. Childress was convicted of failure to stop and

render aid and was sentenced to twenty-five years’ imprisonment.1

At the time of the accident and of sentencing, failure to stop

and render aid was an offense under article 6701d of the Texas

Revised Civil Statutes, which provided for a maximum prison term of

five years.2 However, under Section 12.41(1) of the Texas Penal
550.023 (Vernon 1996)).

 

3The record indicates that Childress also was convicted of

burglary in 1957 and aggravated assault in 1980. However, the

enhancement paragraphs of the indictment alleged only his 1946 and

1948 burglary convictions. Under well established Texas law,

prior convictions must be alleged in the indictment in order to be

used to enhance the defendant’s sentence. See, e.g., Briggs v.

Procunier, 764 F.2d 368, 371 (5th Cir. 1985); Bell v. State, 387

S.W.2d 411, 413 (Tex. Crim. App. 1965), aff’d sub nom. Spencer v.

Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); Moore v.

State, 227 S.W.2d 219, 221 (Tex. Crim. App. 1950). We have

recognized this Texas requirement in determining that the use of an

3

Code, the offense was classified as a third-degree felony and was

therefore subject to sentence enhancement based on prior felony

convictions. See TEX. PENAL CODE ANN. §§ 12.41(1), 12.42 (Vernon 1974

& Supp. 1994). See also Platter v. State, 600 S.W.2d 803, 805

(Tex. Crim. App. 1980) (explaining that under Texas Penal Code §

12.41(1), failure to remain at the scene of a motor vehicle

accident is deemed a third-degree felony and thus is subject to

sentence enhancement under § 12.42). Under Section 12.42(d), a

defendant’s third felony conviction is punishable by a minimum

prison term of twenty-five years. 

The indictment in this case alleged that Childress had been

convicted of two previous felony burglary offenses in Harris

County, Texas, in 1946 and 1948. Childress pleaded “not true” to

these allegations and moved to quash the enhancement paragraphs.

He did not dispute that he had been convicted, on pleas of guilty,

of the two alleged prior offenses. Rather, he claimed that these

convictions violated his right to the assistance of defense

counsel, and that consequently their use for enhancement purposes

was unconstitutional.3
invalid conviction cannot be considered harmless error, even if

other unalleged convictions may have been proven. McGee v.

Estelle, 732 F.2d 447, 449-51 (5th Cir. 1984); Bullard v. Estelle,

665 F.2d 1347, 1366 n.36 (5th Cir. 1982), vacated on other grounds,

459 U.S. 1139, 103 S.Ct. 776, 74 L.Ed.2d 987 (1983)). This may

explain why the state has not asserted that even if Childress’s

1946 and 1948 convictions were invalid, the error was harmless.

4

At his sentencing hearing on January 3, 1992, Childress

testified that he had agreed to plead guilty in 1946 and again in

1948 as the result of uncounseled plea negotiations with the

prosecutor in each case. Childress, who was an indigent defendant,

conceded that a court-appointed lawyer was assigned to him at the

1946 and 1948 plea hearings. However, Childress also testified --

and the state court accepted as true -- that counsel’s sole duty

was to execute a waiver of appellant’s right to jury trial.

Counsel never investigated the facts, never discussed the

applicable law with Childress, and never advised him of the rights

he would surrender by pleading guilty. Childress claims that as a

consequence of his lack of legal representation, he was unaware of

his rights to remain silent and to confront his accusers. Indeed,

he stated that at the time, he had no idea why a lawyer was

appointed to stand with him in court during the jury waiver and

plea proceedings.

Childress’s description of his plea hearings was corroborated

in general terms by a witness, attorney John Cutler, who began

practicing criminal defense law in Harris County in 1947. Cutler

explained that before a non-capital felony defendant was permitted

to plead guilty, state law required the appointment of counsel for

the purpose of waiving the defendant’s right to jury trial. See
 

4Cutler’s testimony recounted the standard practice in the

Harris County criminal courts in the 1940s:

Q: Are you aware of a practice where a defendant might

cut a deal by himself unrepresented and cut this deal

with the prosecutor and then come into court in order to

take the plea? A lawyer would be basically appointed

just to stand in at that point in time to waive trial by

jury and to take a plea in front of a judge?

A: Yes. The lawyers didn’t get paid either.

***

Q. When lawyers would be appointed without pay, and

asked to stand in order to take pleas would these lawyers

as a general custom, I’m talking about would they

basically stand in and take the plea or actually be

counsel, would they conduct independent investigations?

A. Well, many times you didn’t have -- you did it all

at the same time. . . . I might walk in the courtroom

and the defendant is sitting at the table, judge appoints

me to represent him and he’s standing up and talks to him

a few -- maybe a minute or two, and he would -- the plea

would be taken at that time.

***

Q. So the normal kind of things that we envision

lawyers to do, that is to talk strategy with a client,

discuss facts of the case with a client, research the

law, conduct an independent investigation, that didn’t

take place did it in those kinds of cases?

5

Act of April 9, 1931, 42nd Leg., ch. 43, § 1, 1931 Tex. Gen. Laws

65 (current version at TEX. CRIM. PROC. CODE ANN. art. 1.13 (Vernon

1977 & Supp. 1996)). Beyond that, Cutler testified, assigned

counsel would stand by in case his services were required by the

court.

According to Cutler’s uncontroverted testimony, counsel

typically was assigned “a minute or two” before the plea was

taken.4 The lawyer assigned to the defendant thus had little, if
A. No.

 

5The trial judge found this testimony consistent with his own

experience as a Harris County prosecutor in the early 1970s, when

a similar procedure was followed in misdemeanor cases.

6

any, opportunity to perform the investigative, counseling, and

advocacy functions typically required and expected of defense

counsel. Nonetheless, counsel usually had time to confer with the

defendant in order to confirm that the defendant was prepared to

plead guilty. 

The trial court credited Childress’s and Cutler’s testimony.

The court was convinced that the lawyer “standing in” for Childress

at the 1946 and 1948 plea hearings provided “little or no[]”

assistance. The court found that the sole function of assigned

counsel in these cases was to help Childress waive his right to

jury trial.5 The trial court, proceeding on the assumption that

Childress sought to establish an ineffective assistance claim,

found that Childress had received “very very minimal” assistance of

counsel at the plea hearings. Nevertheless, the court found that

Childress had not been denied the effective assistance of counsel

within the meaning of Strickland. Although the trial judge

expressed misgivings about his decision, he denied Childress’s

motion to quash, found the enhancement paragraphs “true,” and

imposed the minimum enhanced sentence of twenty-five years. 

After exhausting his state remedies, Childress filed a

petition for writ of habeas corpus in the district court.

Childress raised three grounds for habeas relief. First, he

asserted that he was not informed of the constitutional rights he
7

would waive by pleading guilty, including his right to confront his

accusers and his privilege against self-incrimination. Second, he

claimed that his rights were violated when the prosecutor met with

him to negotiate plea terms before defense counsel was assigned.

Third, he claimed that “[c]ounsel was not appointed to fully

represent or defend the accused at all critical stages of the

proceedings.”

The district court rejected all three claims. First, relying

on the documentary record of the 1946 and 1948 cases, the court

found that the trial court in each case admonished Childress of the

consequences of a guilty plea. Second, the district court stated

that under Trahan v. Estelle, 544 F.2d 1305 (5th Cir. 1977),

Childress had no right to counsel during plea negotiations.

Finally, the district court found that Childress was represented by

counsel at the plea hearings and failed to show that counsel was

ineffective within the meaning of Strickland. The court did not

address appellant’s contention that his right to counsel was

constructively denied. 

A judge of this court granted a certificate of probable cause

to appeal, vesting this court with jurisdiction. We focus

primarily on Childress’s third claim.

In considering a claim for federal habeas relief, we review

the district court’s factual findings for clear error and its legal

conclusions de novo. Trest v. Whitley, 94 F.3d 1005, 1007 (5th

Cir. 1996). The ultimate question in this appeal -- whether

appellant’s right to counsel was constructively denied -- is a
8

mixed question of law and fact, subject to de novo review. Cf.

Strickland, 466 U.S. at 698, 104 S.Ct. at 2070 (explaining that

ineffectiveness of counsel is a mixed question of a law and fact).

DISCUSSION

On April 24, 1996, President Clinton signed into law the

Antiterrorism and Effective Death Penalty Act of 1996. Pub. L. No.

104-132, 110 Stat. 1214 (1996) (codified at 28 U.S.C. §§ 2241-

2266). Title I of the Act significantly amended Chapter 153 of

Title 28 of the United States Code, which authorizes the federal

courts to grant the writ of habeas corpus. See generally Felker v.

Turpin, --- U.S. ---, 116 S.Ct. 2333, 2335, 135 L.Ed.2d 827 (1996).

In particular, the Act altered the legal standard for granting

habeas relief to state prisoners based upon violations of their

federal constitutional rights. See 28 U.S.C. § 2254(d). We have

held that this section took effect immediately and is fully

applicable to appeals, such as this one, that were pending when the

statute became law. Mata v. Johnson, 99 F.3d 1261 (5th Cir. 1996);

see also Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996).

The new Section 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf

of a person in custody pursuant to the judgment of a

State court shall not be granted with respect to any

claim that was adjudicated on the merits in State court

proceedings unless the adjudication of the claim--

(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 on an

unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.
 

6The dissenter on the state court of appeals recognized that

appellant was raising a constructive denial claim. He remarked,

“[A]ppellant’s complaint is not that his lawyer was bad, but that

he was absent, except to help execute a jury waiver.” 845 S.W.2d

at 384 (Cohen , J., dissenting). The majority did not respond to

this observation.

9

There is no suggestion in appellant’s habeas petition that the

state courts made an unreasonable determination of the facts. Cf.

28 U.S.C. § 2254(d)(2). Consequently, this appeal is governed by

Section 2254(d)(1). To prevail, Childress must show that the state

courts’ resolution of his constitutional claim was “contrary to” or

“involved an unreasonable application of” Supreme Court precedent.

We have held that “a reasonable, good faith application of

Supreme Court precedent will immunize the state court conviction

from federal habeas reversal . . . .” Mata, 99 F.3d at 1268.

There can be no such immunization here, however, for the simple

reason that in adjudicating appellant’s Sixth Amendment claim, the

state courts entirely failed to apply the law pertaining to

constructive denial of the right to counsel. Rather, the state

courts fastened on (and rejected) the argument that Childress

received the ineffective assistance of counsel.6 That is a very

different argument, and one on which Childress has not relied.

In these circumstances, we find it most useful to inquire

whether the state courts’ resolution of appellant’s Sixth Amendment

claim was “contrary to” federal law as clearly established by

decisions of the Supreme Court. We note that appellant’s claim is

premised on several of the Court’s best-known decisions in the

field of constitutional criminal procedure. As discussed more
10

fully below, appellant claims that he had the right to counsel at

all critical stages of his 1946 and 1948 prosecutions for burglary;

that the plea hearings were critical stages; that he was

constructively denied the right to counsel at those hearings; that

a constructive denial of counsel is prejudicial per se; and that a

conviction secured in violation of the accused’s right to counsel

cannot be used to enhance his punishment for a subsequent offense.

See Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799

(1963) (right to counsel in state felony prosecutions); Mempa v.

Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 257, 19 L.Ed.2d 336 (1967)

(right to counsel at all critical stages); Hamilton v. Alabama, 368

U.S. 52, 54, 82 S.Ct. 157, 158-59, 7 L.Ed.2d 114 (1961) (state

proceeding where plea is entered is a critical stage); White v.

Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193

(1963) (same); Strickland, 466 U.S. at 692, 104 S.Ct. at 2067

(citing Cronic, 466 U.S. at 659 and n.25, 104 S.Ct. at 2046-47 and

n.25) (prejudice is presumed where right to counsel is

constructively denied); Burgett v. Texas, 389 U.S. 109, 88 S.Ct.

258, 19 L.Ed.2d 319 (1967) (forbidding use of uncounseled

convictions for sentence enhancement in subsequent criminal cases).

State Court Fact Findings

The recently amended habeas statute sets out the following

standard for federal court review of state court factual findings:

In a proceeding instituted by an application for a writ

of habeas corpus by a person in custody pursuant to the

judgment of a State court, a determination of a factual

issue made by a State court shall be presumed to be

correct. 
 

7While the measure of deference afforded state court factual

findings is substantial, we note that it is not absolute. Section

2254(d)(2) authorizes issuance of the writ if the state court

decision “was based on an unreasonable determination of the facts

in light of the evidence presented.” 

11

28 U.S.C. § 2254(e)(1). This section appears to retain the

traditional presumption of correctness afforded to state court

factual determinations. As the prior case law firmly established,

federal courts are “require[d] . . . to show a high measure of

deference to the fact findings made by the state courts.” Sumner

v. Mata, 455 U.S. 591, 598, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480

(1982) (construing former Section 2254(d)).7 In this case, the

state court’s factual findings are not in dispute. Because they

are pivotal to our determination of this appeal, we review them in

some detail.

The state trial court made findings regarding the general

conduct of plea hearings in Harris County in the late 1940s and the

particular circumstances surrounding appellant’s convictions.

The court found that generally, prosecutors in non-capital

cases engaged in plea discussions with defendants who were not

represented by counsel. Plea bargains were typically reached on

the day of the plea hearing. At the hearing itself, courtappointed counsel “would stand in and basically determine whether

or not the defendant wanted to withdraw from the plea” agreement.

Assigned counsel waived the defendants’ right to jury trial and

remained in the courtroom while the plea was taken. As the state

court remarked from the bench, “[T]hat was the extent of the ‘right

to counsel’ quote, unquote, that was occurring in 1946 through 1948
 

8The court of appeals presumed the regularity of the state

court records, which reflect that Childress appeared in court with

counsel. 845 S.W.2d at 379. The physical presence of counsel does

not, of course, dispose of the constructive denial claim.

12

from all indications.” 

The court found that when Childress pleaded guilty in the two

burglary cases, a lawyer was assigned to appear in court at his

side. In the absence of any evidence contravening appellant’s and

Cutler’s testimony, however, the court concluded that counsel took

“a potted plant approach” to Childress’s representation. That is,

counsel’s role was essentially passive. He was “on the spot at

that point to listen to the judge, ask questions, and determine

whether or not” the defendant wanted to plead guilty.

We understand the state court to have determined that counsel

(1) ascertained whether Childress wished to plead guilty; (2)

executed the waiver of jury trial; and (3) stood by in case the

court required further assistance during the plea hearing. The

court found this assistance to be “very very minimal,” but

sufficient to satisfy Strickland.

The factual determinations summarized here were undisturbed by

the state appellate courts and are unchallenged in the briefs

before this court.8 With these findings in mind, we turn to the

constitutional principles that control this appeal.

The Sixth Amendment Right to Assistance of Defense Counsel

The Sixth Amendment in part provides, “In all criminal

prosecutions, the accused shall enjoy the right . . . to have the

Assistance of Counsel for his defence.” The Sixth Amendment right
13

to defense counsel in felony prosecutions is a fundamental right,

binding on the states through the Fourteenth Amendment. Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Moreover, the right to counsel in state felony prosecutions is

retroactive, so that a defendant’s pre-Gideon conviction secured in

violation of that right cannot be used to enhance his sentence in

a subsequent criminal case. Burgett v. Texas, 389 U.S. 109, 88

S.Ct. 258, 19 L.Ed.2d 319 (1967). As the Supreme Court explained:

To permit a conviction obtained in violation of Gideon v.

Wainwright to be used against a person either to support

guilt or enhance punishment for another offense . . . is

to erode the principle of that case. Worse yet, since

the defect in the prior conviction was denial of the

right to counsel, the accused in effect suffers anew from

the deprivation of that Sixth Amendment right. 

Burgett, 389 U.S. at 115, 88 S.Ct. at 262 (internal citation

omitted). See also Webster v. Estelle, 505 F.2d 926, 928 (5th

Cir. 1974), cert. denied, 421 U.S. 918, 95 S.Ct. 1581, 43 L.Ed.2d

785 (1975).

Many of the cases describing the parameters of the right to

counsel focus on the criminal trial, which has been called the

“main event” in the adjudication of guilt or innocence. Cf.

McFarland v. Scott, 512 U.S. 849, ---, 114 S.Ct. 2568, 2574, 129

L.Ed.2d 666 (1994). Nevertheless, the right to counsel is not

limited to the trial itself. A defendant has the constitutional

right to the assistance of counsel at every “critical stage” of the

proceedings against him, or whenever his “substantial rights . . .

may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254,

257, 19 L.Ed.2d 336 (1967). 
 

9In Trahan, the defendant pleaded guilty after an uncounseled

negotiation with the prosecutor. We perceived no Sixth Amendment

violation because the defendant “pleaded guilty with at least some

advice from court appointed counsel.” 544 F.2d at 1309. Trahan

thus differs essentially from this case, in which Childress

contends that he received no legal advice or assistance.

14

Notwithstanding Trahan,9 neither the Supreme Court nor this

circuit has suggested that counsel may be dispensed with throughout

the entire plea process. To the contrary, the Supreme Court has

held that a plea hearing is a critical stage of the prosecution, at

which the right to counsel is constitutionally guaranteed. See

Hamilton v. Alabama, 368 U.S. 52, 54, 82 S.Ct. 157, 158-59, 7

L.Ed.2d 114 (1961); White v. Maryland, 373 U.S. 59, 60, 83 S.Ct.

1050, 1051, 10 L.Ed.2d 193 (1963).

In repeatedly applying the Supreme Court’s teaching, we have

stated that “one of the most precious applications of the Sixth

Amendment may well be in affording counsel to advise a defendant

concerning whether he should enter a guilty plea.” Reed v. United

States, 354 F.2d 227, 229 (5th Cir. 1965), cited in Davis v. United

States, 376 F.2d 535, 537 (5th Cir. 1967). See also Goodwin v.

Smith, 439 F.2d 1180, 1182 (5th Cir. 1971); Davis v. Holman, 354

F.2d 773, 775-76 (5th Cir. 1965), cert. denied, 384 U.S. 907, 86

S.Ct. 1343, 16 L.Ed.2d 359 (1966); Harvey v. Mississippi, 340 F.2d

263, 269 (5th Cir. 1965). “It is clear that a defendant is

entitled to the effective assistance of counsel in determining how

to plead and in making his plea, and can attack his conviction

collaterally if he is not given this right.” Colson v. Smith, 438

F.2d 1075, 1078 (5th Cir. 1971)(citations omitted).
15

The Supreme Court has noted:

Representation of a criminal defendant entails certain

basic duties. . . . [These include] the overarching duty

to advocate the defendant’s cause and the more particular

duties to consult with the defendant on important

decisions and to keep the defendant informed of important

developments in the course of the prosecution.

Strickland, 466 U.S. at 688, 104 S.Ct. at 2065. The Sixth

Amendment imposes these duties on counsel representing the accused

at a plea hearing, as well as at trial. Even when the accused

intends to plead guilty, “counsel still must render competent

service.” Herring v. Estelle, 491 F.2d 125, 128 (5th Cir. 1974).

We explained:

It is the lawyer’s duty to ascertain if the plea is

entered voluntarily and knowingly. He must actually and

substantially assist his client in deciding whether to

plead guilty. It is his job to provide the accused an

understanding of the law in relation to the facts. The

advice he gives need not be perfect, but it must be

reasonably competent. His advice should permit the

accused to make an informed and conscious choice. In

other words, if the quality of counsel’s service falls

below a certain minimum level, the client’s guilty plea

cannot be knowing and voluntary because it will not

represent an informed choice. And a lawyer who is not

familiar with the facts and law relevant to his client’s

case cannot meet that required minimal level.

Id. at 128 (citations, footnote and internal quotation marks

omitted) (emphasis added).

A defendant thus is constitutionally entitled to the active

assistance of counsel at a plea hearing in a state felony

prosecution. If that right is denied, the ensuing conviction may

not be used to enhance his sentence in a subsequent prosecution.

Burgett, 389 U.S. at 115, 88 S.Ct. at 262. 

One more Sixth Amendment principle is especially salient in
 

10The Court, parsing the text of the Sixth Amendment, has

observed: “If no actual ‘Assistance’ ‘for’ the accused’s ‘defence’

is provided, then the constitutional guarantee has been violated.”

Cronic, 466 U.S. at 654, 104 S.Ct. at 2044 (footnote omitted). 

 

11In a pair of cases that preceded Strickland and Cronic, the

Texas Court of Criminal Appeals held that the defendants’ Sixth

Amendment rights were violated by the appointment of counsel for

the sole purpose of executing a waiver of the right to jury trial.

See Ex parte Morse, 591 S.W.2d 904 (Tex. Crim. App. 1980); Ex parte

Lemay, 525 S.W.2d 1 (Tex. Crim. App. 1975).

16

the context of this appeal: “The Constitution’s guarantee of

assistance of counsel cannot be satisfied by mere formal

appointment.” Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321,

322, 84 L.Ed. 377 (1940), cited in Tucker v. Day, 969 F.2d 155, 159

(5th Cir. 1992). As the Supreme Court has stated:

That a person who happens to be a lawyer is present at

trial alongside the accused . . . is not enough to

satisfy the constitutional command. The Sixth Amendment

recognizes the right to the assistance of counsel because

it envisions counsel’s playing a role that is critical to

the ability of the adversarial system to produce just

results.

Strickland, 466 U.S. at 685, 104 S.Ct. at 2063.10 As the Court

further observed in Cronic, “[A]lthough counsel is present, the

performance of counsel may be so inadequate that, in effect, no

assistance of counsel is provided.” Cronic, 466 U.S. at 654 n.11,

104 S.Ct. at 2044 n. 11, quoted in Tucker, 969 F.2d at 159

(additional citations and internal quotation marks omitted). 

In sum, the right to the assistance of counsel for one’s

defense -- at a plea hearing, as at any critical stage --

encompasses the right to have an advocate for one’s cause.11 

Constructive Denial and Ineffective Assistance

The state courts and the district court held that Childress
17

failed to show that he received the ineffective assistance of

counsel, as the term is defined in Strickland. In this court, the

state emphasizes that Childress failed to plead, let alone prove,

that he was prejudiced as a result of counsel’s unprofessional

errors, as Strickland demands. This argument misconceives the

nature of Childress’s claim. Childress does not argue that he had

a bad lawyer in the 1946 and 1948 proceedings, but that he had none

at all, except for the purpose of waiving a jury trial. 

The Supreme Court has dispensed with the Strickland prejudice

inquiry in cases of actual or constructive denial of counsel. As

the Court has explained, “There are . . . circumstances that are so

likely to prejudice the accused that the cost of litigating their

effect in a particular case is unjustified.” Cronic, 466 U.S. at

658, 104 S.Ct. at 2046 (footnote omitted). In Strickland itself,

the Court added that:

In certain Sixth Amendment contexts, prejudice is

presumed. Actual or constructive denial of the

assistance of counsel altogether is legally presumed to

result in prejudice. See United States v. Cronic, 466

U.S., at 659, and n.25, 104 S.Ct., at 2046-2047, and

n.25. Prejudice in these circumstances is so likely that

case-by-case inquiry into prejudice is not worth the

cost. 466 U.S., at 659, 104 S.Ct., at 2047. Moreover,

such circumstances involve impairments of the Sixth

Amendment right that are easy to identify and, for that

reason and because the prosecution is directly

responsible, easy for the government to prevent.

466 U.S. at 692, 104 S.Ct. at 2067. 

The Court further explained that a constructive denial of

counsel occurs when the defendant is deprived of “the guiding hand

of counsel.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64,

77 L.Ed. 158 (1932), cited in Cronic, 466 U.S. at 660-61, 104 S.Ct.
18

at 2047-48. This brand of Sixth Amendment violation has occurred

in cases involving the absence of counsel from the courtroom,

conflicts of interest between defense counsel and the defendant,

and official interference with the defense. See Cronic, 466 U.S.

at 659 and nn.25 & 31, 104 S.Ct. at 2047 and nn.25 & 31. In

addition, constructive denial will be found when counsel fails “to

subject the prosecution’s case to meaningful adversarial testing .

. . .” Id. at 659, 104 S.Ct. at 2047. Accordingly, when the

defendant can establish that counsel was not merely incompetent but

inert, prejudice will be presumed.

The vast majority of Sixth Amendment right to counsel claims

can be analyzed satisfactorily under the two-pronged performance

and prejudice test of Strickland. The federal courts of appeal,

including this one, have repeatedly emphasized that constructive

denial of counsel as described in Cronic affords only a narrow

exception to the requirement that prejudice be proved. 

A constructive denial of counsel occurs . . . in only a

very narrow spectrum of cases where the circumstances

leading to counsel’s ineffectiveness are so egregious

that the defendant was in effect denied any meaningful

assistance at all. 

Craker v. McCotter, 805 F.2d 538, 542 (5th Cir. 1986) (internal

quotation marks and citations omitted). Accord Toomey v. Bunnell,

898 F.2d 741, 744 n.2 (9th Cir. 1990) (Cronic presumption is

applied “very sparingly”). We have insisted that the convicted

criminal prove ineffective assistance according to the Strickland

standard in cases where defense counsel investigated certain issues

but not others; where counsel’s trial preparation was “somewhat
19

casual”; where counsel failed to pursue a challenge based on racial

bias in jury selection; and where counsel failed to object to a

variation between the indictment and the jury charge. See Woodard

v. Collins, 898 F.2d 1027, 1029 (5th Cir. 1990); McInerney v.

Puckett, 919 F.2d 350 (5th Cir. 1990); Harris v. Johnson, 81 F.3d

535 (5th Cir.), cert. denied, ---U.S.---, 116 S.Ct. 1863, 134

L.Ed.2d 961 (1996); Ricalday v. Procunier, 736 F.2d 203 (5th Cir.

1984). In the context of a guilty plea hearing, we refused to

presume prejudice in Craker. Although defense counsel was

appointed only minutes before the defendant pleaded guilty, his law

partner had investigated the case, and counsel explained the plea

agreement to the defendant and discussed the defendant’s options

with him. We concluded that Craker had received some meaningful

assistance, and that there was no constructive denial of counsel.

Craker, 805 F.2d at 543. 

These holdings are sound because in each case, the defendant

complained of counsel’s errors, omissions, or strategic blunders

in the context of an active adversarial representation. We found

in each case that the because the defendant received some

meaningful assistance, it was necessary to prove prejudice. In

essence, we have consistently distinguished shoddy representation

from no defense at all. As we explained in McInerney, “bad

lawyering, regardless of how bad, does not support the [per se]

presumption” of prejudice under Cronic. 919 F.2d at 353. 

Other federal circuits applying Strickland and Cronic have

joined us in distinguishing ineffectiveness claims from
 

12While gleaning insight from Swanson’s statement of Sixth

Amendment principles, we do not necessarily endorse its finding of

a constructive denial of counsel. Defense counsel in Swanson

failed to call witnesses and conceded in his closing argument that

the evidence of his client’s guilt was overwhelming. These appear

to be trial errors amenable to Strickland analysis. See Scarpa v.

Dubois, 38 F.3d 1, 12 (1st Cir. 1994) (criticizing Swanson), cert.

denied, ---U.S.---, 115 S.Ct. 940, 130 L.Ed.2d 885 (1995). 

20

constructive denial claims. The cases establish that a

constructive denial of counsel occurs when a criminal defendant

must navigate a critical stage of the proceedings against him

without the aid of “an attorney dedicated to the protection of his

client’s rights under our adversarial system of justice.” United

States v. Swanson, 943 F.2d 1070, 1075 (9th Cir. 1991). 

In Swanson, the Ninth Circuit observed that Strickland applied

to cases in which counsel’s “errors or omissions occurred during an

inept attempt to present a defense,” or where defense counsel

“engaged in an unsuccessful tactical maneuver that was intended to

assist the defendant in obtaining a favorable ruling.” Id. at

1073. In contrast, the Swanson court held that Cronic’s

presumption of prejudice applied when counsel committed “not merely

a negligent misstep in an attempt to champion his client’s cause[,

but . . .] an abandonment of the defense of his client at a

critical stage of the criminal proceedings.12 Id. at 1074.

The First Circuit further illuminated the boundary between

constructive denial and ineffective assistance of counsel in Scarpa

v. Dubois, 38 F.3d 1 (1st Cir. 1994), cert. denied, ---U.S.---, 115

S.Ct. 940, 130 L.Ed.2d 885 (1995). The court emphasized that a

defense lawyer’s “maladroit performance,” as distinguished from
 

13Other circuits have found a constructive denial of Sixth

Amendment rights when counsel slept for extended periods at trial,

Tippins v. Walker, 77 F.3d 682, 685 (2d Cir. 1996); failed to

object to a directed verdict against the defendant, Harding v.

Davis, 878 F.2d 1341 (11th Cir. 1989); deliberately stressed the

brutality of his client’s crime, Osborn v. Shillinger, 861 F.2d

612, 628-29 (10th Cir. 1988); was absent during cross-examination

of an important government witness by counsel for a co-defendant,

Green v. Arn, 809 F.2d 1257 (6th Cir.), vacated on other grounds,

484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated, 839

F.2d 300 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102

L.Ed.2d 979 (1989); and was absent when the verdict was returned,

Siverson v. O’Leary, 764 F.2d 1208, 1217 (7th Cir. 1985).

21

“non-performance,” required an inquiry into actual prejudice under

Strickland. Id. at 15. Drawing an analogy to harmless error

analysis, the court distinguished “trial errors” from “structural

errors.” Trial errors must be analyzed in the particular

circumstances of each case to determine whether prejudice resulted.

In contrast, structural errors so undermine confidence in the

fairness and reliability of the proceedings that prejudice is

presumed. Id.13 

As these cases indicate, a critical question in assessing a

Sixth Amendment right to counsel claim is whether the accused

asserts that he received incompetent counsel, or none at all.

Childress claims the latter. His petition does not tell the story

of courtroom “pratfalls” by a hapless defense lawyer advocating his

cause, however maladroitly. Cf. Scarpa, 38 F.3d at 11. Rather, he

complains that counsel provided no meaningful assistance

whatsoever, except with respect to the waiver of jury trial.

Silent Counsel and Standby Counsel

Two of our precedents applying Cronic strongly support

Childress’s claim that a defense attorney who does not participate
22

in a critical phase of the proceedings falls short of the

constitutional standard. 

We found a constructive denial of the right to counsel in

Tucker, 969 F.2d at 159. In that case, the transcript of the

petitioner’s resentencing hearing indicated that counsel remained

silent throughout. Tucker alleged that the transcript was

incomplete, that he had asked aloud at one point, “Do I have

counsel here?” and that counsel had responded, “Oh, I am just

standing in for this one.” Id. Tucker alleged that his appointed

counsel acted as a “mere spectator,” and we agreed. We noted:

Tucker was unaware of the presence of counsel, counsel

did not confer with Tucker whatsoever, and as far as the

transcript is concerned, counsel made no attempt to

represent his client’s interests. 

Id.

Unlike Tucker, Childress knew that a court-appointed lawyer

was present at his 1946 and 1948 plea hearings. But Childress did

not know why counsel was present, and in neither case did counsel

bestir himself to advocate the defendant’s interests. 

Perhaps the case that best illuminates the present one is

United States v. Taylor, 933 F.2d 307 (5th Cir.), cert. denied, 502

U.S. 883, 112 S.Ct. 235, 116 L.Ed.2d 191 (1991). In Taylor, this

court found a Sixth Amendment deprivation despite the presence in

court of “standby counsel.” 

Taylor was charged with escaping from federal custody. The

district court granted Taylor’s request to represent himself at

trial, but appointed a public defender to act as standby counsel.

Id. at 309. The public defender “played a significant role in the
23

trial, frequently consulting with Taylor and assisting him in

presenting a motion for acquittal.” Id. at 311. Taylor

nevertheless was convicted. He then withdrew his request to

represent himself and asked the court to appoint defense counsel

for his sentencing. The district court refused this request and

ordered the public defender to continue as standby counsel. Id. at

309, 311. Taylor, dissatisfied with the outcome of the

proceedings, appealed his sentence. 

We held that Taylor had been constructively denied his

constitutional right to the assistance of counsel, and that he was

not required to show prejudice under Strickland. We stated:

[T]here is a great difference between having a bad lawyer

and having no lawyer: if the lawyering is merely

ineffective, then the decision to grant relief turns on

the degree of incompetence and prejudice to the

defendant; if the defendant had no lawyer, prejudice is

legally presumed in every case, and the defendant is

entitled to relief in every case.

Id. at 312 (citations omitted). Applying that distinction, and

relying primarily on Cronic, we determined that standby counsel is,

in constitutional terms, no counsel at all. We explained:

Given the limited role that a standby attorney plays, we

think it clear that the assistance of standby counsel, no

matter how useful to the court or the defendant, cannot

qualify as the assistance of counsel required by the

Sixth Amendment. There can be no question that the roles

of standby counsel and full-fledged defense counsel are

fundamentally different. The very definition of fullfledged counsel includes the proposition that the

counselor, and not the accused, bears the responsibility

for the defense; by contrast, the key limitation on

standby counsel is that such counsel not be responsible--

and not be perceived to be responsible--for the accused’s

defense.

Id. at 312. 
24

We emphasized in Taylor that “[s]tandby counsel does not

represent the defendant.” Id. at 313. See also id. at 312-13

(citing McKaskle v. Wiggins, 465 U.S. 168, 177-78, 104 S.Ct. 944,

950-51, 79 L.Ed.2d 122 (1984) (explaining the limited role of

standby counsel)). Rather, his role is one of an “observer, an

attorney who attends the proceeding and who may offer advice, but

who does not speak for the defendant or bear responsibility for his

defense.” Id. 

Application of Sixth Amendment Precedent to Childress

In our view, the defense attorney in Childress’s 1946 and 1948

plea hearings was the equivalent of standby counsel. He was in

court to stand by, listen to the judge, and respond to any

contingencies that might arise. He took no responsibility for

advocating the defendant’s interests at a critical phase of the

proceeding. As the state trial judge observed at Childress’s 1992

sentencing, counsel was “on the spot” but did not actively assist

the defendant. Childress testified that he had no idea why a

lawyer was appointed to stand with him in court. Cutler’s

testimony reflected that appointed counsel in Harris County in the

late 1940s routinely failed to discuss strategy with their clients,

research the law, investigate the facts, or otherwise go to bat for

the accused. The state court’s factual findings in this case,

based upon the uncontroverted and unimpeached defense testimony,

support the conclusion that Childress was aided, if at all, by

standby counsel rather than full-fledged defense counsel. In these

circumstances, we are convinced that counsel, though surely more
 

14The state asserts that by pleading guilty in open court,

Childress waived his right to attack his enhancement convictions,

except by challenging the voluntary and intelligent character of

the guilty pleas. See Bradbury v. Wainwright, 658 F.2d 1083, 1087

(5th Cir. Unit B Oct. 1981), cert. denied, 456 U.S. 992, 102 S.Ct.

2275, 73 L.Ed.2d 1288 (1982). Of course Childress has raised just

such a challenge, maintaining that the constructive denial of

counsel resulted in guilty pleas that were constitutionally infirm.

Our precedents clearly establish that if the advice of counsel

falls below the minimum required by the Sixth Amendment, the guilty

plea cannot be deemed knowing and voluntary because it does not

represent an informed waiver of the defendant’s rights. Mason v.

Balcom, 531 F.2d 717, 725 (1976). It is clear that a constructive

denial of counsel falls short of the minimum requirements of the

Sixth Amendment.

25

sentient than a potted plant, was not the advocate for the defense

whose assistance is contemplated by the Sixth Amendment.14 The

failure of counsel to live up to the constitutional command,

moreover, resulted directly from the operation of the Texas statute

requiring the appointment of counsel for the sole purpose of

surrendering the accused’s right to jury trial.

CONCLUSION

In light of the Supreme Court’s clearly established Sixth

Amendment jurisprudence, we must conclude that the state cannot

punish Childress today based upon convictions secured a halfcentury ago in violation of his right to counsel. We emphasize

that we are not expanding the reach of the constructive denial of

counsel doctrine. Our holding is rooted in the unusual

circumstances of this case, particularly the long-since abandoned

state procedure of appointing counsel solely to waive the

defendant’s right to jury trial, together with the state court’s

determination that counsel in fact did nothing to represent
26

appellant’s interests. When defense counsel is appointed solely to

execute the defendant’s waiver of jury trial, and when the evidence

establishes that counsel performed no other service for the

defendant, it cannot be said that the defendant received the

assistance of counsel for his defense. 

We break no new ground by declaring that a defense lawyer who

fails to actively assist the defendant during a critical stage of

the prosecution is not the counsel whose assistance is contemplated

by the Sixth Amendment. The Gideon violations in this case were

“constitutional error[s] of the first magnitude” obviating the need

for a showing of prejudice. Cronic, 466 U.S. at 659, 104 S.Ct. at

2047 (internal citation and quotation marks omitted). 

In the circumstances of this case, we hold that Childress was

constructively denied his constitutional right to the assistance of

counsel, and that accordingly, his enhanced twenty-five year

sentence cannot stand.

The decision of the district court is REVERSED and the case

REMANDED with instructions to issue the writ of habeas corpus

unless, within a reasonable time to be designated by the district

court, the state resentences the prisoner.