United States District Court, W.D. Louisiana, Shreveport Division
HAYES, MAG. JUDGE
G. JAMES, UNITED STATES DISTRICT JUDGE
the Court is a Motion to Dismiss [Doc. No. 8] filed by
Defendant Caddo Parish Sheriff Steve Prator. On October 27,
2017, Magistrate Judge Karen L. Hayes issued a Report and
Recommendation [Doc. No. 18] in which she recommends denying
objected to the Report and Recommendation on November 13,
2017 [Doc. No. 19], and Plaintiff responded to the objection
on November 27, 2017 [Doc. No. 20].
reviewed the entire record de novo, including
Defendant's objection and Plaintiff's response, the
Court concurs with the Magistrate Judge's findings and
ADOPTS the Report and Recommendation. The Court issues this
Ruling to address one non-dispositive misstatement of law.
moved for dismissal under Heck v. Humphrey, 512 U.S.
477, 486-87 (1994), arguing that the Court should dismiss
Plaintiff's claims because they necessarily imply the
invalidity of Plaintiff's conviction or sentence. [Doc.
No. 8]. Pertinent here, Defendant argued that Plaintiff's
allegations, if proven, would necessarily imply that
Defendant deprived Plaintiff of his right to effective
assistance of counsel. Id. Citing U.S. v.
Cronic, 466 U.S. 648, 649 (1984), Defendant argued that
Plaintiff's allegations amount to a constructive denial
of counsel claim, where a court would presume prejudice
without inquiring into Plaintiff's counsel's actual
performance. [Doc. No. 17, p. 7].
Magistrate Judge rejected Defendant's argument. [Doc. No.
18, pp. 8-9]. Citing U.S. v. Cronic, 466 U.S. 648,
649 (1984), Gochicoa v. Johnson, 238 F.3d 278, 285
(5th Cir. 2000), and Burdine v. Johnson, 262 F.3d
336, 338 (5th Cir. 2001), the Magistrate Judge stated,
“As long as counsel is physically present in the
courtroom, a Sixth Amendment right to counsel claim requires
a showing of actual prejudice to the criminal defendant's
case.” Id. at 8. The Magistrate Judge then
concluded that a court would not presume prejudice because
Plaintiff does not allege that his counsel was physically
absent from the courtroom for any relevant hearing.
Gochicoa, and Burdine, however, do not
stand for the cited proposition. Whether a court will presume
prejudice does not always depend on counsel's physical
presence in, or absence from, the courtroom. In
Burdine, the Fifth Circuit stated,
“Cronic-type prejudice results in
circumstances in which, although counsel is present,
counsel's ineffectiveness is so egregious that the
defendant is in effect denied any meaningful assistance of
counsel at all.” Burdine, 262 F.3d at 385
(emphasis added). Likewise, in Gochicoa, the Fifth
Circuit did not limit presumed prejudice to cases in which
counsel was physically absent: “We have found
constructive denial in cases involving the absence of counsel
from the courtroom, conflicts of interest between defense
counsel and the defendant, and official interference with the
defense . . . .” Gochicoa, 238 F.3d at 284.
in particular, “identified three situations implicating
the right to counsel that involved circumstances ‘so
likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified.'”
Bell v. Cone, 535 U.S. 685, 695-96 (2002) (quoting
Cronic, 466 U.S. at 658-59). First, prejudice is
presumed “where the accused is denied the presence of
counsel at ‘a critical stage, ' . . . .”
Id. (internal citations omitted). Second, the Court
“posited that a similar presumption was warranted if
‘counsel entirely fails to subject the
prosecution's case to meaningful adversarial
testing.'” Id. This presumption could
apply even if counsel was physically present in the
courtroom. See Goodwin v. Johnson, 132 F.3d 162,
n.10 (5th Cir. 1997). Third, the Supreme Court stated
“that in cases like Powell v. Alabama, 287
U.S. 45, 53 (1932), where counsel is called upon to render
assistance under circumstances where competent counsel very
likely could not, the defendant need not show that the
proceedings were affected.” Bell, 535 U.S. at
696 (citing Cronic, 466 U.S. at 659-62). This scenario,
like the former, does not necessarily turn on counsel's
physical presence in, or absence from, the courtroom.
none of the Cronic scenarios apply here. Plaintiff
does not allege that counsel was absent at a critical stage,
that counsel entirely failed to subject the prosecution's
case to meaningful adversarial testing, or that his counsel
was called to render assistance under
circumstances where competent counsel very likely could
not. Thus, a presumption of prejudice is not warranted.
to assert a claim for ineffective assistance of counsel,
Plaintiff would have to allege that counsel's actions
prejudiced his defense (i.e. that but for counsel's
actions, the result of the proceeding would have differed).
See U.S. v. Brown, 167 F.3d 538 (5th Cir. 1998)
(“Unless a defendant can show that his case is squarely
governed by Cronic, he must rebut a presumption that
the analysis for determining a Sixth Amendment violation is
governed by Washington.”). Plaintiff, however,
does not allege prejudice.
as the Magistrate Judge concluded, accepting Plaintiffs
allegations as true and rendering judgment in his favor would
not necessarily imply the invalidity of his conviction. For
this reason, as well as the reasons set forth in the
Magistrate Judge's Report and Recommendation,
Defendant's Motion to Dismiss is DENIED.