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United States v. Ragin

United States Court of Appeals, Fourth Circuit

March 11, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
NICHOLAS RAGIN, Defendant - Appellant

         Argued December 10, 2015.

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[Copyrighted Material Omitted]

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          Appeal 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.


         Matthew Gridley Pruden, TIN, FULTON, WALKER & OWEN, PLLC, Charlotte, North Carolina, for Appellant.

         William Michael Miller, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         ON BRIEF:

         Jill Westmoreland Rose, United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina, for Appellee.

         Before GREGORY and SHEDD, Circuit Judges, and DAVIS, Senior Circuit Judge. Judge Gregory wrote the opinion, in which Judge Shedd and Senior Judge Davis joined.


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          GREGORY, Circuit Judge:

         This 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.

          The 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.

         This case presents such a situation. Nicholas Ragin's Sixth Amendment right to counsel was violated not because of

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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.

         We 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.



         On 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.

         Ragin 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.

         At the 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.

         At 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. 2009) (unpublished).


         On 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.

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Ragin described a single incident during which he " noticed that [Mackey] was sleeping." Id.

         In 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.

         After 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.


         At the 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.

         Adolf, 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.

         Adolf 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 ...

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