December 10, 2015.
[Copyrighted Material Omitted]
from the United States District Court for the Western
District of North Carolina, at Charlotte.
(3:04-cr-00271-RJC-7; 3:10-cv-00488-RJC). Robert J. Conrad,
Jr., District Judge.
Gridley Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte,
North Carolina, for Appellant.
Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY,
Charlotte, North Carolina, for Appellee.
Westmoreland Rose, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Charlotte, North Carolina, for
GREGORY and SHEDD, Circuit Judges, and DAVIS, Senior Circuit
Judge. Judge Gregory wrote the opinion, in which Judge Shedd
and Senior Judge Davis joined.
GREGORY, Circuit Judge:
appeal presents an issue of first impression in this Circuit:
whether a defendant's right to effective assistance of
counsel is violated when his counsel sleeps during trial. We
hold that a defendant is deprived of his Sixth Amendment
right to counsel when counsel sleeps during a substantial
portion of the defendant's trial.
Sixth Amendment guarantees a criminal defendant the
assistance of counsel for his defense. U.S. Const. amend. VI.
Although generally a defendant must show that his
counsel's performance was deficient and prejudicial to
prevail on a claim of ineffective assistance of counsel, see
Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), in United States v.
Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657
(1984), the Supreme Court held that there are certain
situations where the reliability of a trial becomes so
questionable that the defendant need not show that he was
actually prejudiced. Instead, prejudice is presumed. We
believe that when counsel for a criminal defendant sleeps
through a substantial portion of the trial, such conduct
compromises the reliability of the trial, and thus no
separate showing of prejudice is necessary.
case presents such a situation. Nicholas Ragin's Sixth
Amendment right to counsel was violated not because of
specific legal errors or omissions indicating incompetence in
counsel's representation but because Ragin effectively
had no legal assistance during a substantial portion of his
trial. The evidence is not disputed; it demonstrates that
counsel was asleep for much of Ragin's trial. As one
witness testified, counsel was asleep " [f]requently . .
. almost every day . . . morning and evening" for "
30 minutes at least" at a time. These circumstances
suggest " a breakdown in the adversarial process that
our system counts on to produce just results,"
Strickland, 466 U.S. at 696, and from which we must presume
prejudice to Ragin.
therefore conclude that Ragin was deprived of effective
assistance of counsel during his trial, in violation of the
Sixth Amendment. Accordingly, we reverse the order denying
relief under 28 U.S.C. § 2255 and remand for further
proceedings consistent with this opinion.
October 18, 2004, a grand jury in the Western District of
North Carolina returned an indictment that charged Ragin,
along with six codefendants, with conspiracy and other
substantive offenses related to their involvement in
prostitution and drug rings. Following the indictment, the
district court appointed Nikita V. Mackey as counsel for
Ragin. The grand jury subsequently returned a superseding
indictment that charged Ragin with two counts: conspiracy to
commit offenses against the United States, including enticing
and coercing individuals to travel in interstate commerce to
engage in prostitution, interstate transportation of minors
to engage in prostitution, and interstate wire transfer of
funds in aid of racketeering enterprises, in violation of 18
U.S.C. § 371; and conspiracy to possess with intent to
distribute cocaine base and to employ, hire, use, persuade,
induce, entice and coerce minors in furtherance thereof, in
violation of 21 U.S.C. § § 841, 846, and 861.
pleaded not guilty and was tried before a jury along with
three of his codefendants, Tracy Howard, David Howard, and
Oscar Solano-Sanchez. The trial lasted from April 3 to April
21, 2006, and included testimony from approximately forty
witnesses. Of those witnesses, six testified about
Ragin's direct involvement in the conspiracy, while the
remainder testified about the acts of the other defendants.
conclusion of trial, the jury found Ragin guilty on both
counts. On June 25, 2006, three months after trial and prior
to sentencing, Ragin submitted a handwritten letter to the
district court in which he complained about Mackey. Ragin
alleged, among other things, that " [Mackey] even had
the audacity to fall asleep 'twice' during the
trial." Supp. J.A. 790.
sentencing, the district court calculated a total offense
level of 40 and a criminal history category of VI based on
Ragin's accumulation of 16 criminal history points,
resulting in a guidelines range of 360 months to life in
prison. The court sentenced Ragin to 360 months in prison. We
subsequently affirmed Ragin's conviction and sentence.
United States v. Howard, 309 Fed.Appx. 760 (4th Cir.
October 1, 2010, Ragin moved, pursuant to 28 U.S.C. §
2255, to have his conviction and sentence vacated. In the
motion, Ragin raised eleven claims for relief, including ten
allegations accusing Mackey of providing ineffective
assistance of counsel. Ragin's seventh claim was that
" [c]ounsel fell asleep during the trial." J.A. 27.
Ragin described a single incident during which he "
noticed that [Mackey] was sleeping." Id.
conjunction with his § 2255 motion, Ragin submitted a
sworn affidavit elaborating on eight of his ineffective
assistance of counsel claims. Consistent with his earlier
allegation in his post-trial letter, in paragraph eight of
the affidavit, Ragin stated, " Finally counsel fell
asleep twice during trial which more than shows his lack of
interest and dedication to my case." J.A. 64.
the government filed a response opposing Ragin's motion,
the district court issued an order, concluding that " an
evidentiary hearing is necessary to resolve Petitioner's
claim that his attorney provided ineffective assistance when
he fell asleep during trial." J.A. 113-14.
evidentiary hearing, Ragin called three witnesses, Peter
Adolf, Richard Culler, and Pamela Vernon, and testified on
his own behalf. The government called Special Agent Terrell
Tadeo and Mackey.
who represented codefendant David Howard at trial, testified
that he " definitely" noticed Mackey sleeping on
one occasion. J.A. 131. Adolf recalled that, during the
prosecution's case in chief, government counsel
approached Mackey to show him an exhibit that they intended
to introduce. " [Government counsel] walked over to Mr.
Mackey, and I remember that Mr. Mackey was sort of sitting
back, leaning back in his chair with his left elbow on his
left thigh, . . . and sort of with his chin resting on his
fist, and [government counsel] held the document in front of
him and he didn't move, he sort of sat there." J.A.
132. " Judge Conrad leaned into his microphone, because
we were all sitting there and [Mackey] wasn't moving and
said, 'Mr. Mackey' . . . very loudly."
Id. Mackey then " jumped up and sort of looked
around and was licking his lips and moving his mouth and
looked sort of confused and looked all over the room except
at [government counsel]. And after a few seconds, he saw
[government counsel] standing there and looked at the
document." J.A. 133. After Mackey reviewed the document,
he " went back into the position that he was [in] before
with his chin on his fist." Id. Adolf did not
remember who was testifying at the time or what document the
government was showing.
did not specifically recall any other occasions where he
noticed Mackey sleeping. Adolf made clear, however, that he
" really didn't pay a lot of attention to what
[Mackey] was doing throughout the trial" because he
" was dealing with [his] own client and [the
client's] own issues; " Mackey " wasn't
directly in [his] line of sight unless [he] looked to the