Roy Smith v. Richard Brown , 764 F.3d 790 ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 12-3731
ROY A. SMITH,
Petitioner-Appellant,
v.
RICHARD BROWN,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:05-cv-00590-JTM — James T. Moody, Judge.
____________________
ARGUED APRIL 8, 2014 — DECIDED AUGUST 26, 2014
____________________
Before POSNER and TINDER, Circuit Judges, and LAWRENCE,
District Judge.*
TINDER, Circuit Judge. Roy A. Smith appeals the district
court’s denial of his habeas petition, through which he seeks
to set aside his Indiana criminal conviction due to allegedly
ineffective assistance of counsel. Although we agree that it
* Of the United States District Court for the Southern District of Indiana,
sitting by designation.
2 No. 12-3731
appears Smith’s counsel was particularly deficient, Smith
has failed to demonstrate how his lawyer’s substandard ef-
fort prejudiced his case in light of the overwhelming evi-
dence against him. We therefore affirm the district court’s
judgment.
I. Background
The incident underlying this appeal occurred on March
19, 2003, when Smith was already serving a 90-year sentence
for murder in the Indiana State Prison. That morning at
breakfast, Smith walked behind a fellow inmate, Anthony
Fisher, and stabbed him several times with half a pair of
scissors. Fisher suffered wounds to the neck, back, and chest.
He required surgery and remained in the hospital for twelve
days. Smith’s attack was observed by several guards, who
promptly detained him.
Facing charges for attempted murder and aggravated
battery in LaPorte County Superior Court, Smith received a
court-appointed public defender named James Cupp. Soon
after the appointment, Smith himself composed numerous
motions to the court, which Cupp believed were meritless
and therefore did not file. These attempted motions includ-
ed, for example, a challenge to the integrity of the arrest
warrant because the copy Smith received did not have a sig-
nature on it. Smith then tried to submit a motion to change
attorney, and sent a letter to Cupp detailing his frustrations
and Cupp’s failure to communicate with him. But during a
subsequent pretrial hearing on December 23, 2003, Smith de-
cided not to request a change of counsel, saying that he was
“going to give it another shot as long as I can get my mo-
tions filed timely and he kind of abide[s] by my wishes.”
No. 12-3731 3
The attorney-client relationship did not improve. The
court held another pretrial hearing on April 23, 2004, during
which Cupp questioned Smith on the record so that he could
essentially argue in support of his self-drafted motions. At
the end of that proceeding, Smith again requested to have
another attorney appointed. On May 6, the court issued an
order denying all of Smith’s motions, including his request
to change his attorney. At the next hearing, on June 4, Cupp
informed the court that Smith had filed a disciplinary com-
plaint against him with the Indiana state bar. He represented
to the court that the complaint had already been dismissed.
He also noted that Smith wished to file an interlocutory ap-
peal of the court’s denial of his motions, but Cupp declined
to move for a continuance to allow such an appeal. Smith,
for his part, again informed the court of his frustration with
Cupp’s decision not to file his desired motions and his al-
leged refusal to communicate with him. In fact, he claimed
that “I haven’t discussed anything with Mr. Cupp in 11
months” and that Cupp had “done absolutely nothing” to
assist in Smith’s defense in that time. Smith also waived his
right to a jury trial. Shortly after the June 4 hearing, Smith
filed a motion on his own to remove Cupp and proceed pro
se, along with a new motion to dismiss the indictment.
A bench trial commenced on June 22, but Smith sought a
continuance. He claimed he had not received notice of the
court’s May 6 order denying his earlier motions until two
days before the June 4 hearing, and that therefore he had
been unprepared to promptly challenge the court’s rulings.
Moving on to his motion to dismiss the indictment, he ar-
gued that the trial court judge was not neutral because he
had already made the probable cause determination under-
lying his arrest. He further stated that he wanted to call wit-
4 No. 12-3731
nesses and present evidence at trial, but that Cupp had re-
fused to pursue those leads. In pleading with the trial court,
Smith stated that “I don’t know what [Cupp is] going to do”
at trial because “[h]e refused to communicate with me. Since
we [have] been in this courtroom, he hasn’t said two words
to me. … If he represents me I don’t have a defense.” The
court denied Smith’s remaining motions, and the trial pro-
ceeded.
Cupp gave an opening statement setting forth the theory
that the stabbing was “self-defense to avoid [Smith’s] annihi-
lation” at the hands of the victim, Fisher. The state then
called Fisher to the stand. After initially refusing to swear to
tell the truth, Fisher declined to name his attacker and was
otherwise unhelpful to the state’s case. On cross-
examination, Cupp questioned Fisher about an argument
between the two men the day before the stabbing. Smith in-
terjected by asking rhetorically, “You my lawyer?” Cupp
continued, asking Fisher if he had told Smith the day before
the attack that “Mr. Smith had defied [Fisher] for the last
time.” Fisher admitted that he had said this. Cupp then tried
to get Fisher to admit that he had stated his intention to kill
Smith the following day. Fisher denied saying so, and of-
fered to testify to what he did tell Smith. However, Cupp did
not press the issue, and instead promptly ended the cross-
examination.
The state then called Derrick Judkins, a correctional of-
ficer at the time, and he testified that he saw Smith stab Fish-
er. Specifically, he testified that he saw Smith “walking in
the [prisoners’ dining room], and he did not proceed to fol-
low around to get his tray. He just went in to where the ta-
bles were and proceeded to attack the inmate.” He further
No. 12-3731 5
testified that Fisher’s back was to Smith when he first struck,
and that Smith had approached him from behind. Judkins
testified that he at first thought Smith was striking Fisher
with his fist, and did not realize Smith had a weapon until
after the two men were separated and the half pair of scis-
sors was found underneath the table. The prosecution then
showed Judkins a photo of the half-pair of scissors found
under the table near the stabbing. Cupp objected to the ad-
mission of the exhibit, but the court overruled the objection
because the photo was not being offered into evidence; the
witness was simply being asked to identify the item in the
photo. Cupp chose not to cross-examine Judkins.
The state called a second correctional officer present dur-
ing the incident, Kenneth Rutland. He testified that he re-
sponded to the attack in the dining room and grabbed
Smith’s right arm to prevent him from striking Fisher again.
He stated that “that’s when a piece of a pair of scissors fell
out of his hand.” He later admitted that he did not know
that the object that fell out of Smith’s hand was a piece of
scissors until it was later recovered under the table. He also
conceded that he had not witnessed the start of the attack.
Rutland further provided the detail that Smith was wearing
black gloves on both his hands at the time he was hand-
cuffed. Cupp did not cross-examine Rutland.
The state then called a third correctional officer, Mike
Chlebowski. He testified that after the attack he recovered
the piece of scissors from under the table, along with a loose
black glove that had also fallen to the floor. He further testi-
fied that, following a strip search, authorities discovered the
other half of the scissors and the matching glove in Smith’s
pocket. Cupp declined to cross-examine him as well.
6 No. 12-3731
The state then called two witnesses who were not present
during the incident. One of them was a prison investigator
named Charles Whelan, who testified that he found Smith’s
prison identification card on the blood-spattered portion of
the floor. Cupp did not cross-examine Whelan or the last
witness, a nursing supervisor who testified as to Fisher’s
medical records and condition following the attack. Cupp
did not call any witnesses either, over his own client’s inter-
jection that “Yes we do [have evidence]. And I got witnesses
I’d like to call.” He instead made a very brief closing argu-
ment, which we reproduce in its entirety: “Judge, I’d simply
leave it to the Court’s discretion as to whether the case has
met its—the State has met its burden with respect to both
Counts One and Two. That’s all we would have. Thank
you.” The court promptly rendered a verdict finding Smith
guilty of attempted murder and aggravated battery. The ag-
gravated battery conviction was later vacated because it was
a lesser included offense that merged with the attempted
murder conviction. True to form, Cupp did not provide any
arguments in mitigation during the sentencing phase of the
proceeding. The court sentenced Smith to 34 years in prison,
to be served consecutively to his current term.
Smith obtained direct review in the Indiana court of ap-
peals, claiming ineffective assistance of counsel. The court
held that “[d]efense counsel did not, for all practical purpos-
es, mount a defense on Smith’s behalf” because he cross-
examined only one witness and called none in defense,
while objecting only to one potential prosecution exhibit.
The court concluded that “[w]e cannot characterize defense
counsel’s representation as ‘effective.’” Nevertheless, it af-
firmed Smith’s conviction because he failed to show any
prejudice resulting from Cupp’s performance in light of the
No. 12-3731 7
strength of the eyewitness testimony against him. Smith then
petitioned for a transfer to the Supreme Court of Indiana,
but transfer was denied.
In September of 2005, Smith prematurely sought habeas
relief in the United States District Court for the Northern
District of Indiana; the district court stayed the petition so
that he could exhaust his remaining state remedies. He peti-
tioned for post-conviction relief in Indiana state court, and
appealed its denial to the court of appeals. There he argued
that his appellate counsel’s representation was ineffective.
The court of appeals affirmed the post-conviction court’s
denial of his petition, but also observed in passing that “this
court has already found Smith’s trial counsel to have been
ineffective.”
The district court then lifted the stay and considered
Smith’s habeas petition. Cupp did not submit any evidence
to the district court explaining his decisions during the liti-
gation or describing his trial strategy. The district court
acknowledged that the state court of appeals had found his
trial court counsel to be ineffective, but held that the court
reasonably concluded that Cupp’s behavior did not preju-
dice Smith. Absent such prejudice, Smith’s habeas petition
could not succeed under the Anti-Terrorism and Effective
Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d). (Smith had
also raised a claim—denied on direct review in state court
and pressed in the district court as part of the habeas pro-
ceeding—disputing the trial court’s denial of his motion to
proceed pro se. The district court rejected that argument as
well, and that issue is not before this court.) On May 30,
2013, we granted Smith a certificate of appealability recog-
nizing that he had “made a substantial showing” that he was
8 No. 12-3731
denied his Sixth Amendment right to effective assistance of
counsel. See 28 U.S.C. § 2253(c).
II. Discussion
“We review a district court’s judgment regarding habeas
relief de novo.” McElvaney v. Pollard, 735 F.3d 528, 531 (7th
Cir. 2013). However, under AEDPA, this court may not
grant relief unless the challenged state court decision “was
contrary to, or involved an unreasonable application of,
clearly established Federal law” or “was based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
Pursuant to Strickland v. Washington, a successful ineffec-
tive assistance of counsel claim must show that (1) counsel’s
performance was deficient, meaning it fell below an “objec-
tive standard of reasonableness” informed by “prevailing
professional norms” and (2) counsel’s deficient performance
prejudiced the petitioner, meaning that there is a “reasona-
ble probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” 466
U.S. 668, 687–88, 694. However, in cases where a defendant
has been effectively denied the right to counsel “altogether,”
prejudice may be presumed. Id. at 692. Such a circumstance
was presented in United States v. Cronic, 466 U.S. 648, 659
(1984), decided the same day as Strickland. Smith contends
that his counsel was so deficient as to trigger a presumption
of prejudice.
The state responds by arguing that Smith both waived
and procedurally defaulted on his Cronic claim by failing to
raise it either before the federal district court or in state
court. He urged those tribunals to employ the standard two-
No. 12-3731 9
pronged Strickland analysis, and did not argue that the
courts should simply presume the existence of prejudice un-
der Cronic. Smith, however, contends that Cronic simply pre-
sents a particularly egregious form of Strickland violation,
and that a citation to Strickland impliedly incorporates the
Cronic standard as well. He further asserts that the state
court of appeals should have applied the presumption of
prejudice once it found that “[d]efense counsel did not, for
all practical purposes, mount a defense on Smith’s behalf.”
To avoid waiver on appeal, a party must “adequately
present an issue to the district court” first. Fednav Int’l Ltd. v.
Cont’l Ins. Co., 624 F.3d 834, 841 (7th Cir. 2010). The require-
ment for preserving a constitutional claim for habeas review
is similar: a petitioner must show that he “fairly presented
[the] claim to the state judiciary.” Ellsworth v. Levenhagen, 248
F.3d 634, 639 (7th Cir. 2001). In Ellsworth we laid out four fac-
tors for determining whether the petitioner has avoided de-
fault: “1) whether the petitioner relied on federal cases that
engage in a constitutional analysis; 2) whether the petitioner
relied on state cases which apply a constitutional analysis to
similar facts; 3) whether the petitioner framed the claim in
terms so particular as to call to mind a specific constitutional
right; and 4) whether the petitioner alleged a pattern of facts
that is well within the mainstream of constitutional litiga-
tion.” Id.The Fifth Circuit has on at least one occasion distin-
guished between a Strickland claim and a Cronic claim. See
Hopper v. Dretke, 106 F. App’x 221, 228 n.25 (5th Cir. 2004)
(considering a Strickland claim but finding a Cronic argument
waived). The Eighth Circuit has held in Wenmark v. Iowa, 322
F.3d 1018, 1021 (8th Cir. 2003), that a Strickland claim did not
10 No. 12-3731
adequately raise an argument to extend the “rule of pre-
sumed prejudice,” enunciated in Cuyler v. Sullivan, 446 U.S.
335, 350 (1980), that applies when a lawyer representing
multiple defendants suffers a conflict of interest that ad-
versely affects his performance. The state urges us to like-
wise conclude that, because Smith argued that Cupp’s defi-
cient performance prejudiced him, he waived any argument
that prejudice should be presumed. But of course, Smith
seeks not to break new ground but instead to simply have
the rule in Cronic applied to his case. And the state does note
that Strickland itself cited Cronic as an example of an attor-
ney’s constitutionally deficient performance: “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.” Strickland, 466 U.S.
at 692 (citing Cronic, 466 U.S. at 659). This at least suggests
that Cronic describes merely a subset within the universe of
Strickland claims that includes “the most extreme instances
of lawyerly incompetence.” Barrow v. Uchtman, 398 F.3d 597,
603 n.4 (7th Cir. 2005). Smith contends that requiring a peti-
tioner to cite both cases elevates form over substance.
Fortunately, we need not decide the thorny issue of
whether the Cronic issue was fairly presented in this case.
Whether or not Smith waived his Cronic contention, it lacks
merit. And it certainly cannot meet the exacting AEDPA
standard. The Supreme Court in Strickland limited the pre-
sumption of prejudice to cases involving “[a]ctual or con-
structive denial of the assistance of counsel altogether.” 466
U.S. at 692. This includes, for example, “claims based on
state interference with the ability of counsel to render effec-
tive assistance to the accused.” Id. at 683. In Cronic the Court
explained that presuming prejudice would be appropriate in
No. 12-3731 11
the face of a “complete denial of counsel” or denial at a “crit-
ical stage” of the litigation. 466 U.S. at 659. The presumption
would also be triggered if counsel “entirely fails to subject
the prosecution’s case to meaningful adversarial testing,” or
if, due to the timing of the trial or other factors, “the likeli-
hood that any lawyer, even a fully competent one, could
provide effective assistance is [] small.” Id. at 659–60. In sum,
the presumption is appropriate where “[p]rejudice … is so
likely that case-by-case inquiry into prejudice is not worth
the cost.” Strickland, 466 U.S. at 692. We have observed that
the “Cronic exception is exceedingly narrow.” Miller v. Mar-
tin, 481 F.3d 468, 472 (7th Cir. 2007), and the Supreme Court
has reiterated that “the attorney’s failure to test the prosecu-
tor’s case … must be complete.” Bell v. Cone, 535 U.S. 685,
697 (2002).
Cupp’s performance does not meet this high bar. He did
not abandon Smith during the proceedings, nor did the state
interfere with his defense. At one pretrial hearing, Cupp and
the trial judge went so far as to allow Smith to file his de-
sired motions and take the stand to essentially argue on his
own behalf. Cupp cross-examined the victim at trial and of-
fered a self-defense theory of the case. It is true that Cupp’s
closing statement was equivocal and perfunctory to the
point of being useless. But against the overwhelming weight
of the state’s evidence, he did not have many promising op-
tions. Considering prejudice, or its absence, is particularly
important when a lawyer’s deficient representation is at least
in part influenced by the utter weakness of the defendant’s
case.
This situation is therefore readily distinguishable from
Barrow, which Smith cites as an example of deficient repre-
12 No. 12-3731
sentation that came “perilously close to triggering” a pre-
sumption of prejudice. 398 F.3d at 603 n.4. Barrow’s attorney
failed to put on any evidence in his defense due in part to his
“misunderstanding of Illinois law.” Id. at 601. Here, by con-
trast, Cupp attempted to elicit evidence supporting a poten-
tial claim of self-defense. And in any event we decided that
the prejudice presumption would have been inappropriate
in Barrow because “counsel’s failure was not complete, but
occurred ‘at specific points’ in the proceeding.” Id. at 603 n.4
(quoting Bell, 535 U.S. at 686). Likewise, Cupp did not act to
deny Smith of his representation “altogether,” and therefore
the state court of appeals made no error in declining to pre-
sume prejudice under Cronic. Although he did not mount
much of a defense, Cupp did subject the state’s case to some
meaningful adversarial testing during his opening statement
and his cross-examination of the victim. The Cronic pre-
sumption is inappropriate here.
Consequently, we could not find that the state court un-
reasonably misapplied the law in declining to presume prej-
udice, and we may not grant habeas relief on that ground.
The state court of appeals was not compelled to apply Cronic
once it found that Cupp essentially failed “to mount a de-
fense” on Smith’s behalf. The court was no doubt justifiably
critical of Cupp’s performance, but it did not find that he
had abandoned his client, absented himself from the case, or
so egregiously failed his duty to represent Smith that preju-
dice should be presumed. That the court did not consider it
appropriate to presume prejudice is borne out by the fact
that it went on to find none.
As to Smith’s ordinary Strickland claim, we agree with the
state court of appeals that Cupp’s assistance was substantial-
No. 12-3731 13
ly deficient, and that it fell far short of acceptable standards
of professional conduct for defense counsel. The state wisely
does not argue otherwise. Cupp’s cross-examination of Fish-
er ended after only a few questions, even when Fisher’s tes-
timony opened the possibility that he had threatened Smith
and put him in danger. Cupp entirely failed to cross-
examine any other witness, or call witnesses of his own. This
is particularly troubling in light of Smith’s statement during
trial that he wanted to call several individuals to the stand.
We also do not know what sort of investigation Cupp under-
took to learn the facts of the case, other than his apparent in-
quiry into Smith’s conversation with Fisher the day before
the attack. Smith persistently complained both before and
during trial that Cupp failed to communicate with him, as-
sist in his defense before trial, or file requested motions. Giv-
en the general lack of merit of those motions, we sympathize
with Cupp’s predicament, especially after Smith lodged a
disciplinary complaint against him. But this strained attor-
ney-client relationship adversely affected Cupp’s perfor-
mance.
Smith also points out that Cupp missed an inconsistency
between the testimonies of two of the guards. One of the
correctional officers, Rutland, testified that Smith wore
gloves on each of his hands at the time he was handcuffed.
But another one, Chlebowski, testified that one glove was in
Smith’s pocket, along with the other half of the pair of scis-
sors used in the attack. He also claimed to have seen the oth-
er glove on the floor, although he observed this only after
Smith had been handcuffed. Attentive counsel should have
noticed this inconsistency and cross-examined Chlebowski
about it. Although one minor discrepancy would not have
significantly undermined the guards’ combined testimony
14 No. 12-3731
that Smith attacked Fisher from behind with a half pair of
scissors, Cupp should have investigated this issue and seen
where it led.
Worst of all, Cupp failed to give a meaningful closing
statement. An attorney is obligated to represent his client
zealously. See Model Rules of Prof’l Conduct Preamble
(2013). For a lawyer to leave a criminal verdict to the court’s
“discretion,” without attempting to guide that discretion in
his client’s favor, is unacceptable. Cupp could have ad-
dressed the self-defense theory that he advanced in his open-
ing argument and his brief cross-examination of Fisher. He
could have reminded the court that the state bore the burden
of proving every element of the offense beyond a reasonable
doubt, that Fisher had declined to identify Smith as his at-
tacker, or that the state had conspicuously declined to call to
the stand any other inmate present at breakfast that day. If
he had not failed to catch the inconsistency regarding
whether or not Smith was wearing his gloves, he could have
brought that issue to the court’s attention as well. Instead, he
offered a closing that failed to even ask for a favorable result
and accomplished next to nothing.
We of course understand that an attorney may tailor his
closing argument in a bench trial so as to skip some of the
didactic lecturing and theatrical grandstanding that might
occur in arguments before a jury. We also appreciate that the
case against Smith was overwhelming. And the Supreme
Court has recognized that in rare instances a state court may
treat even a waiver of closing argument as a strategic choice.
See Bell, 535 U.S. at 702 (holding that it was not “objectively
unreasonable” for a state court “to deem counsel’s choice to
waive argument a tactical decision about which competent
No. 12-3731 15
lawyers might disagree”). For example, counsel may choose
to forego a closing argument to prevent the prosecution
from correcting a mistake or providing a damaging argu-
ment in rebuttal. See Fox v. Ward, 200 F.3d 1286, 1296 (10th
Cir. 2000) (“[I]t is well-settled that the decision to waive an
opening or closing statement is a commonly adopted strate-
gy, and without more, does not constitute ineffective assis-
tance of counsel.”). But none of these considerations can ex-
plain why Cupp decided to throw in the towel in this case.
His closing should have been more than just a throat-
clearing exercise.
That being said, we agree with the district court that
Cupp’s deficient performance did not prejudice Smith’s case.
One guard testified that he saw Smith walk up behind a
seated Fisher and stab him. Another wrested a weapon from
his hand while he was striking Fisher. A third identified the
weapon as part of pair of scissors, and found the matching
half in Smith’s pocket. Fisher sustained stab wounds on his
back and neck, consistent with being attacked from behind.
Smith was detained and removed from the meal area imme-
diately following the attack. An investigator found Smith’s
prison identification card amidst the blood spatter. Fisher
testified that he had argued with Smith the day before the
stabbing, thus establishing Smith’s motive. Admittedly, this
last piece of information was introduced during Cupp’s
cross-examination of Fisher, but we cannot fault him for
pursuing a self-defense strategy. See Gentry v. Sevier, 597
F.3d 838, 851 (7th Cir. 2010) (“[S]econd-guessing strategic
decisions in hindsight will generally not be a meritorious ba-
sis to find ineffective assistance of counsel.”). We do fault
him, however, for abandoning that line of argument mid-
stream. And in any event, we agree with Smith that Cupp’s
16 No. 12-3731
representation was deficient. But even a diligent attorney
could have elicited that testimony, and it added to the state’s
already damning case.
In light of this overwhelming evidence, the precise loca-
tion of Smith’s gloves is a trivial concern. Smith makes much
of the fact that no one correctional officer witnessed the en-
tire incident, from Smith’s approach until the discovery of
the scissors under the table. But combined, overlapping tes-
timony of three individuals that is consistent on all major
issues provides powerful corroboration. Nor does Smith
point to any potential evidence in his favor. Although he
claims he had witnesses he wanted to call, he does not indi-
cate what these individuals would have said, or how that
evidence could have cast doubt on the eyewitness testimony
of three correctional officers. This distinguishes this case
from the one Smith cites, Stitts v. Wilson, 713 F.3d 887 (7th
Cir. 2013), cert. denied, 134 S. Ct. 1282 (2014), in which an at-
torney failed to call alibi witnesses that could have under-
mined the state’s case. Finally, even if Cupp had vigorously
pursued a self-defense theory, it would have assuredly
failed in light of the unprovoked nature of the attack. Smith
has not advanced any argument as to how a self-defense ar-
gument could have prevailed. In short, he has offered us “no
reason to believe that the trial would have come out differ-
ently” had his representation been satisfactory. United States
v. Kamel, 965 F.2d 484, 499 (7th Cir. 1992). The state court did
not err in finding a lack of prejudice and did not apply the
law unreasonably.
In passing, Smith asserts that Cupp’s representation at
sentencing was deficient, but he does not seek resentencing.
Nor has he offered any potential mitigating evidence or ar-
No. 12-3731 17
gument Cupp could have made to obtain a lower sentence.
Smith does briefly assert that the Cronic presumption should
apply to Cupp’s conduct at sentencing. See Appellant’s Br. at
27 & n.9. But the case on which he relies, Miller v. Martin, 481
F.3d 468 (7th Cir. 2007), is readily distinguishable. There
counsel essentially sat out the sentencing proceedings after
having informed the court that his client “[did] not recognize
the validity of the trial or the authority of the Court to pro-
ceed to disposition at this time.” Id. at 470 (quotation marks
omitted). By comparison, Cupp participated in the sentenc-
ing proceeding. Although he did not offer a suggested sen-
tence, neither did the prosecution. And any attempt to offer
mitigating evidence may have prompted the state to high-
light aggravating factors, such as Smith’s lengthy criminal
history. Cupp’s efforts at sentencing amounted to “poor rep-
resentation,” not the sort of “non-representation … [that]
triggers a presumption of prejudice.” Id. at 473. This is true
of Cupp’s performance as Smith’s counsel overall.
III. Conclusion
Because Smith’s habeas petition lacks merit, we AFFIRM
the decision of the district court.