The Sixth Amendment right to counsel
“In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defense.” U.S. Const. amend. VI.
“An accused’s right to be represented by counsel is a fundamental component of our criminal justice system.” United States v. Cronic, 466 U.S. 648, 653 (1984). “[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.” Id. at 658. The Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Id. at 656 (internal quotation omitted).
“The right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial . . . That a person who happens to be a lawyer is present at trial alongside the accused, however, 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 v. Washington, 466 U.S. 668, 685 (1985).
In McFarland v. Lumpkin, 26 F.4th 314 (5th Cir. 2022), the Court of Appeals for the Fifth Circuit held that the district court did not err when it found that 28 U.S.C. § 2254(d) precluded federal habeas merits review of petitioner’s claims that his Sixth Amendment right to counsel was violated when trial counsel was asleep and unprepared during his capital murder trial.
Facts underpinning Cronic and Strickland claims of violation of Sixth Amendment right to counsel
Mr. McFarland was convicted as an accomplice to capital murder and sentenced to death by a Texas trial court. According to the Fifth Circuit’s recitation of the facts, “[d]uring trial, the judge confronted a problem. Mr. McFarland’s retained counsel  was sleeping through significant portions of the trial and otherwise presented as unprepared.”1 Indeed, in his briefing to the Fifth Circuit, Mr. McFarland explained that retained counsel was so obviously unprepared to try a capital case that the trial court appointed second chair counsel (without Mr. McFarland’s consent).2
The trial court, however, instructed second chair counsel not to make any decisions in the case without the approval of first chair counsel and applicant, and that [first chair counsel] was to remain the “lead lawyer” and “in charge” (Fifth Circuit opinion). In addition, the McFarland opinion noted it was unknown if the Trial Court actually informed Mr. McFarland expressly about its concern over his lawyer’s preparation and competence. In his briefing, Mr. McFarland further describes how, once trial began, first chair counsel then slept through significant portions of the trial.
Even after second chair counsel was appointed, neither attorney “ever interviewed the State’s key witnesses, the other alleged accomplice  or [the State’s other key witness].” Defendant’s mitigation presentation in the punishment of the death penalty case totaled 15 minutes.
State habeas proceedings
In state post-conviction proceedings, Mr. McFarland alleged, amongst other issues, he was actually or constructively denied counsel and deprived of the effective assistance of counsel at trial in violation of the Sixth Amendment under Strickland and Cronic. The Texas Court of Criminal Appeals denied relief as to all claims, finding that the presence of second chair counsel was sufficient to cure any denial of the right to counsel under Cronic and that trial counsel did develop a strategy sufficient to constitute effective representation under Strickland.3
Federal habeas proceedings in the district court
In federal habeas proceedings, Mr. McFarland re-urged his claims that he was constructively denied counsel and was denied effective assistance of counsel in violation of the Sixth Amendment, in reliance on Cronic and Strickland. Because both claims were adjudicated on the merits by the CCA, merits review by the federal court was prohibited pursuant to 28 U.S.C. § 2254(d), unless the State court’s adjudication “resulted in a decision contrary to, or involved an unreasonable application” of Supreme Court case law or “resulted in a decision that was based on an unreasonable determination of the facts” in light of the state court record.
The district court found that, whether as to Mr. McFarland’s Cronic or Strickland claims, the CCA’s adjudication on the merits neither amounted to an unreasonable application of Cronic and Strickland nor an unreasonable determination of the facts.4 The Federal District Court also found the CCA’s determination that the presence of second chair counsel was sufficient to cure any denial of the right to counsel did not constitute an unreasonable application of Chronic. The Federal District Court also held the CCA’s finding that trial counsel had a “trial strategy” did not constitute an unreasonable application of the Strickland test.5
Arguments on appeal to the Fifth Circuit Court of Appeals
Mr. McFarland applied for and was granted a Certificate of Appealability on, amongst other issues, whether the Federal District Court legally erred in determining that the 28 U.S.C. § 2254(d) re-litigation bar precluded merits review of his Cronic and Strickland claims6. As to his Cronic claim, Mr. McFarland argued the Court had failed to engage with his argument that prejudice should not have been presumed based on the circumstances requiring appointment of a second chair alone.7
In support of his circumstances argument, Mr. McFarland pointed to the facts that first chair counsel, as described by the Fifth Circuit, was unprepared and sleeping through significant portions of the trial. The second chair counsel was prohibited by the trial court from taking any actions not approved by first chair counsel and Mr. McFarland who was likely unaware of his own lawyer’s incompetence.8 Mr. McFarland argued the totality of these circumstances rendered any effective representation by second chair counsel impossible, and that he was thus constructively denied counsel under Cronic.9 Indeed, two State court judges had dissented from the majority and would have granted Cronic relief.10
Mr. McFarland also argued that the district court legally erred when it determined that the State court’s adjudication of his Strickland claim did not constitute an unreasonable application of the Supreme Court’s case law. Mr. McFarland urged that the CCA’s finding trial counsel had a strategy was unsupported by the record. Amongst other facts, Mr. McFarland pointed to the fact the record established that first and second chair counsel had very little contact prior to trial and could therefore never have discussed any strategy. Mr. McFarland further argued that the district court should have focused its analysis on whether, applying Strickland, it was reasonable to not investigate the State’s case on guilt as opposed to focusing its inquiry on what other actions trial counsel did undertake.
Mr. McFarland argued that the Fifth Circuit should instead find that the State court’s adjudication constituted an unreasonable application of Cronic and Strickland such that the 28 U.S.C. § 2254(d) relitigation bar was met, thus permitting federal habeas merits review and relief.
No error in the Fifth Circuit
The Fifth Circuit summarily rejected Mr. McFarland’s claim under Cronic: “We are aware of no case where a sleeping co-counsel alone triggers Cronic’s presumption of prejudice.”11 The Fifth Circuit concluded that, based on the absence of such a Supreme Court case, the State’s court’s adjudication that the presence of second chair counsel was sufficient to cure any Sixth Amendment violation did not rise to an unreasonable application of Cronic.12 The Fifth Circuit, however, failed to engage with Mr. McFarland’s circumstances argument, despite clear language from the Supreme Court in Cronic itself in support of such an argument: “Circumstances . . . may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance of counsel is so small that a presumption of prejudice is appropriate without inquiry unto the actual conduct of the trial.”13
The Fifth Circuit found Mr. McFarland’s arguments under Strickland failed to survive the court’s “doubly deferential” standard under 28 U.S.C. § 2254(d) and Strickland. As to each of Mr. McFarland’s allegations of deficient performance, the Fifth Circuit found that he could not show that the State court’s determination that the Strickland test was not met was unreasonable.14 For example, the Fifth Circuit found that it was reasonable for the State courts to find that trial counsel’s failure to thoroughly cross-examine the State’s key witnesses (including the State’s sole eyewitness whose description of the perpetrator shifted over time) did not fall below prevailing professional norms because cross-examination is inherently risky and trial counsel did cross those witnesses but on different issues.15
This case is significant because it illustrates how, even in circumstances as egregious as a sleeping lawyer in a capital murder trial, 28 U.S.C. § 2254(d) precludes merits review (let alone relief) in federal habeas. Mr. McFarland’s argument that the circumstances at trial amounted to a constructive denial of the right to counsel finds clear support in the Supreme Court’s language in Cronic. Likewise, the incomplete cross-examination of the State’s key witnesses and truncated mitigation presentation support a Strickland claim. Even where the Sixth Amendment right to counsel is at stake, however, the Fifth Circuit will not disturb a state court’s adjudication of a state turned federal habeas petitioner’s claims.
- McFarland, 26 F.4th at 317–18.
- Brief of Appellant, 9–15, McFarland v. Lumpkin, Case. No. 19-70011 (5th Cir. Nov. 9, 2020).
- Ex parte McFarland, 163 S.W.3d 743 (Tex. Crim. App. 2005).
- Opinion Denying a Writ of Habeas Corpus, McFarland v. Davis, Case No. 4:05-cv-03916 (S.D. Tex. 2019).
- McFarland, 26 F.4th at 318.
- Appellant’s Br. at 28–36.
- Id. at 33–36.
- Id. at 36.
- McFarland, 26 F.4th at 320.
- Cronic, 466 U.S. at 659–60.
- McFarland, 26 F.4th at 321.