One more Sixth Amendment principle is especially salient in 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:
Other courts have rejected the notion that such conduct can ever be deemed strategic and applied Cronic instead. See, e.g., Patrasso v. Nelson, supra, 121 F.3d at 304; Tucker v. Day, 969 F.2d 155, 159 (5th Cir.1992); Gardiner v. United States, 679 F.Supp. 1143, 1145–46 (D.Me.1988). Neither party briefed, nor did our independent research reveal, any decisions directly on point, in which defense counsel negotiated for a plea agreement with a given sentencing range, then agreed with the prosecutor's recommendation of the maximum sentence at the sentencing hearing.
The court concluded this constituted a complete failure of counsel warranting the presumption of prejudice. In Tucker v. Day. 969 F.2d 155 (5th Cir. 1992), a defendant's attorney also said nothing at sentencing. According to the defendant, at one point he asked "Do I have counsel here?"
The right to counsel extends to the sentencing stage as forcefully as to the guilt phase. Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (citing Taylor, 933 F.2d at 312). Of course, a defendant is not entitled to a particular counsel, just a competent one.
This required performance contemplates open communication unencumbered by unnecessary impediments to the exchange of information and advice. See Javor v. United States, 724 F.2d 831, 834 (9th Cir. 1984) (a defendant's Sixth Amendment right to counsel is denied when his attorney sleeps through a substantial portion of the trial); see also Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (an attorney who provided his client with no assistance at sentencing and who said, "Oh, I am just standing in for this one," did not satisfactorily discharge his Sixth Amendment responsibilities). Appointed counsel also owes the client a duty of loyalty.
The state court correctly identified and applied the applicable law. Tucker v. Day, 969 F.2d 155 (5th Cir. 1992), on which Petitioner relies, is simply inapposite. There, the defendant had never even met his counsel before appearing in court for resentencing and his counsel announced at the hearing that he was "just standing in."
SeeState v. Austin, 229 So.2d 717, 719 (La. 1969). Constructive denial of the right to counsel was found in Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992). In Tucker, the defendant was represented by appointed counsel at his resentencing hearing.
In the instant case, the trial court's providing of a "stand-in" attorney for defendant's sentencing constructively denied defendant's Sixth Amendment right to counsel. In Tucker v. Day, 969 F. 2d 155, 159 (5th Cir. 1992), the defendant was represented at his resentencing hearing by an appointed counsel who, according to the defendant, stated that he was just "standing in" for the defendant's proceeding. Finding merit in Tucker's argument that he had not been adequately represented at resentencing, the court highlighted three important facts.
See Taylor, 933 F.2d at 312. Tucker v. Day, 969 F.2d 155, 159 (5th Cir. 1992) (citing Taylor, 933 F.2d at 312). Mesquiti, 854 F.3d at 272 (quoting United States v. Cano, 519 F.3d 512, 517 (5th Cir. 2008)).
United States v. Taylor, 933 F.2d 307, 312-13 (5th Cir. 1991). Cf. United States v. Russell, 205 F.3d 768 (5th Cir. 2000) (holding that counsel's absence during trial required presumption of prejudice under Cronic because "the probability of [the defendant's] guilt increased during the government's presentation of evidence against his co-conspirators"); Childress v. Johnson, 103 F.3d 1221 (5th Cir. 1997) (holding that defense attorney was "the equivalent of standby counsel" because "[h]e took no responsibility for advocating the defendant's interests"); Tucker v. Day, 969 F.2d 155 (5th Cir. 1992) (holding failure of counsel to assist defendant at resentencing hearing was a constructive denial of counsel because counsel (1) stated that he was "just standing in," (2) did not know the facts of the case, and (3) made no attempt to represent the defendant's interests). See Wright v. Van Patten, 552 U.S. 120, 124-26 (2008); Richter, 562 U.S. at 103.