Anthony D. Davis v. John R. Van Natta

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 04-2349
A NTHONY D. D AVIS ,
Petitioner-Appellant,
v.
J OHN R. V AN N ATTA ,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 03 C 301—Allen Sharp, Judge.
____________
A RGUED N OVEMBER 8, 2005—D ECIDED F EBRUARY 9, 2006
____________
Before BAUER , M ANION , and E VANS , Circuit Judges.
M ANION , Circuit Judge. An Indiana jury convicted An-
thony Davis of two counts of delivering cocaine. After
pursuing a direct appeal and seeking collateral relief in the
Indiana courts, Davis filed a petition for a writ of habeas
corpus in federal court asserting, among other claims,
that he was denied effective assistance of counsel. The
district court denied the petition. Davis appeals. We affirm.

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2 No. 04-2349
I.
On February 21, 1994, Davis sold and delivered 13.863
grams of cocaine to an undercover officer. On February 23,
1994, Davis sold another 14.360 grams of cocaine to the
same officer. Based on these transactions, Davis was
charged with two counts of delivering over three grams of
cocaine in violation of Indiana Code § 35-48-4-1. In the
pretrial proceedings, four attorneys participated in Davis’s
defense, with none assuming principal responsibility before
trial. These unusual circumstances gave rise to Davis’s
claims of alleged ineffective assistance of counsel, and we
therefore recount in detail his attorneys’ actions before trial.
Following his arrest, Davis appeared for an initial hearing
on March 31, 1994. He stated that he intended to retain an
attorney with the help of his family. The judge instructed
Davis to have an attorney file an appearance within one
week. Since no attorney appeared for Davis by the status
conference on April 7, 1994, the judge appointed a public
defender to represent Davis. The following week, public
defender Brent Zook appeared with Davis at a bond
reduction hearing. The court took the request for bond
reduction under advisement and subsequently denied it,
leaving Davis in custody.
In an interview related to the request for bond reduction,
Davis indicated that he had contracted tuberculosis. On
April 28, 1994, Zook filed a request for a medical examina-
tion to test Davis for tuberculosis. Zook also requested a
continuance of the proceedings pending the results because
Zook was “especially susceptible to communicable dis-
eases.” The judge granted the continuance and ordered the
examination, which subsequently came back negative for
tuberculosis. Public defender Neil Holbrook apparently
assumed Davis’s representation due to Zook’s health

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No. 04-2349 3
1 In much of the record and prior decisions, attorney Borges’s
name is misspelled Borgess.
concerns, and filed a motion for a speedy trial on June 15,
1994. The court granted the motion and scheduled trial for
July 18, 1994. Holbrook also filed a motion for disclosure
of information regarding confidential informants and
undercover officers.
Meanwhile, Davis’s family sought counsel to defend
Davis. The family paid a $1,500 retainer to Chicago attorney
Ernesto D. Borges, 1 Jr., who was licensed only in Illinois. In
order to represent Davis in Indiana, Borges needed local
counsel. Before Borges obtained local counsel, he learned
that the family had independently retained Elizabeth D.
Tate as local counsel, paying her $4,000. Borges admitted
that he was “upset” because the family did not consult with
him regarding the choice of local counsel and because Tate
received more money. Borges assumed that since Tate
received more money and worked near the jail, she would
“take the lead on the case.” Borges and Tate filed an appear-
ance and a motion to continue the trial on July 6, 1994.
Neither Borges nor Tate filed a motion in the next
five months. Davis, who remained in custody, filed a
grievance against Tate with the Indiana Disciplinary
Commission believing that Tate was inattentive to his case.
The grievance was dismissed, but Tate sought to with-
draw from the representation due to a breakdown in the
attorney-client relationship. On December 22, 1994, the court
held a hearing on Tate’s motion to withdraw as counsel.
Davis orally opposed her withdrawal, noting that he had
insufficient funds to retain another local attorney. The court
also noted that Tate’s withdrawal would leave Davis
without required local counsel. The prosecutor, however,

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4 No. 04-2349
indicated that Borges, who was absent from the hearing,
remained “lead counsel” and would be able to find substi-
tute local counsel. The court permitted Tate’s withdrawal
and directed Davis to address his concerns of inattention
and the need for local counsel to Borges, “since he’s your
lead counsel.” In granting Tate’s motion to withdraw, the
court ordered Borges “to retain and have the appearance of
Indiana counsel filed within thirty (30) days.”
Because no local counsel filed an appearance by the
court’s deadline, the court scheduled a status conference for
February 23, 1995. Due to Borges’s conflicts, the
court adjourned the conference until March 2, 1995, and
then again until March 16, 1995. In scheduling the confer-
ence for March 16, 1995, the judge appointed Brent Zook
as “interim local counsel.” Borges appeared at the confer-
ence, along with Zook, Davis, and the prosecutor. Zook
moved to continue the trial date, which was then scheduled
to commence four days later on March 20, 1995. The court
granted the continuance, over the prosecutor’s objection.
Zook also requested an extension of the deadline for a plea
agreement, which was granted. Borges orally moved to
withdraw from the representation. The court took Borges’s
motion under advisement and scheduled a hearing for April
13, 1995, the deadline for a plea agreement.
Borges failed to appear at the next hearing, which was
rescheduled by the court for April 20, 1995. Apparently
because of his absence, the court summarily denied Borges’s
motion. The prosecutor stated that the parties had “reached
an impasse on a plea” and requested that the matter be
scheduled for trial. The court informed Davis of the dead-
line for a plea agreement:
The Court: You understand, Mr. Davis, that if
there is no agreement entered today,

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No. 04-2349 5
I’m going to set this for trial. I will not
hereafter accept a plea bargain agree-
ment?
The defendant: Yes.
The Court: Do you understand that?
The defendant: Yes.
Davis interjected a question at the end of the hearing, asking
if Borges was still on his case and stating that none of the
attorneys had been consulting with him or filing motions on
his behalf. The judge answered that Borges remained his
attorney and that he should address such matters with him.
The court set trial for October 23, 1995.
Zook moved for a continuance of the October trial date,
due to his assignment to a death penalty case. The motion
noted that Zook served “as local counsel, and is unsure of
the role he is to play” in the representation. As a public
defender, Zook could not serve with a retained attorney, yet
Borges had not withdrawn successfully or obtained substi-
tute local counsel. The court granted the motion to continue
without comment, scheduling the trial for February 19, 1996.
As the trial date approached, Zook filed a motion to make
a prisoner available to testify in Davis’s defense. Zook
subsequently withdrew this motion.
On the morning of trial, Borges did not appear, hav-
ing been detained in New York. Zook appeared and re-
quested a continuance to enable Borges to serve as counsel
at trial. The judge informed Davis that if a continuance were
granted, “we’re into probably August or September before
we can reschedule for trial.” The record then indicates that
Davis discussed the issue with Zook, although the duration
and content of this discussion do not appear in the record.

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6 No. 04-2349
Zook then informed the court that “we’ll withdraw the
Motion to Continue.” The judge then questioned Davis:
The Court: You feel that you’ve had adequate
time to talk to Mr. Zook regarding the
facts of your case?
The defendant: Not really; no, sir.
The Court: Well, it’s up to you. If you want a
continuance, I’ll grant it. That’s just a
fact of life where we’re going to be.
The defendant: I’m willing to work with Mr. Zook as
of right now.
The Court: Do you feel confident to go ahead,
Mr. Zook?
Mr. Zook: Yes, sir.
Thus, almost two years after he was initially detained, Davis
went to trial represented by the public defender, Zook. Zook
cross-examined the prosecution’s witnesses, but did not call
witnesses or present evidence in Davis’s defense. The jury
convicted Davis on both counts, and the court sentenced
Davis to forty years of incarceration on each count, to be
served concurrently.
New appointed counsel represented Davis on appeal.
Counsel filed a brief raising only the issue of ineffective
assistance of counsel. The Indiana Court of Appeals af-
firmed the conviction on May 2, 1997, and the Indiana
Supreme Court denied transfer on July 11, 1997. Davis
then filed a petition for post-conviction relief. The trial court
denied the petition, considering the ineffective assistance of
counsel claim barred by res judicata of the direct appeal, but
permitted Davis to proffer his own testimony as well as that
of Borges and Zook at an evidentiary hearing. The Indiana

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No. 04-2349 7
Court of Appeals affirmed the denial of post-conviction
relief on October 3, 2002, and the Indiana Supreme Court
denied transfer on February 20, 2003.
Davis then filed a petition for a writ of habeas corpus in
federal district court pursuant to 28 U.S.C. § 2254 on May 8,
2003. In his pro se petition, he asserted various claims
including ineffective assistance of counsel and a violation of
due process. The district court denied the petition and
denied the request for a certificate of appealability. This
court granted a certificate of appealability, limited to the
issue of “whether Davis received constitutionally sufficient
assistance of counsel at trial and on direct appeal.” We also
appointed counsel for Davis and requested the parties to
“address any issues of procedural default.”
II.
We review the district court’s denial of the petition for a
writ of habeas corpus de novo. Balsewicz v. Kingston, 425
F.3d 1029, 1031 (7th Cir. 2005). Habeas corpus relief is
warranted only if the state court adjudication “ ’[1] resulted
in a decision that was contrary to, or involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States’ or
[2] ‘resulted in a decision that was based upon an unreason-
able determination of the facts in light of the evidence
presented in the State court proceeding.’ ” Id. (quoting 28
U.S.C. § 2254(d)).
In this appeal, Davis asserts a claim of ineffective assis-
tance of counsel. To demonstrate ineffective assistance of
counsel, a petitioner “must show that his counsel’s perfor-
mance was deficient and that the deficient performance
prejudiced his defense.” Martin v. Grosshans, 424 F.3d 588,

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8 No. 04-2349
590 (7th Cir. 2005) (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). In United States v. Cronic, 466 U.S. 648
(1984), however, the Supreme Court crafted three exceptions
to the prejudice requirement of Strickland. 466 U.S. at 659-60;
see also Bell v. Cone, 535 U.S. 685, 695-96 (2002). Specifically,
prejudice may be presumed if “(1) [ ] the accused is ‘denied
the presence of counsel at a critical stage’ in proceedings, (2)
[if] counsel ‘entirely fails to subject the prosecution’s case to
meaningful adversarial testing’ or (3) [if] ‘counsel is called
upon to render assistance under circumstances where
competent counsel very likely could not.’ ” Barrow v.
Uchtman, 398 F.3d 597, 603 n.4 (7th Cir. 2005) (quoting Bell,
535 U.S. at 695-96) (emphasis omitted). Davis seeks relief
under the Cronic exceptions in this appeal.
Respondent argues that Davis has procedurally defaulted
his claim. We need not reach the issue of procedural default,
however, since Davis’s claim fails on the merits. See Canaan
v. McBride, 395 F.3d 376, 387 (7th Cir. 2005). As noted, to
warrant a presumption of prejudice from his counsel’s
performance under Cronic, Davis must show a denial of
counsel at a critical stage of the proceedings, a failure by
counsel to subject the prosecution’s case to meaningful
adversarial testing, or circumstances in which competent
counsel is unlikely to be able to perform effectively. Barrow,
398 F.3d at 603 n.4; Cronic, 466 U.S. at 659-60. The Cronic
exceptions, however, are “narrow” and limited to “ ’circum-
stances that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjusti-
fied.’ ” Florida v. Nixon, 543 U.S. 175, 190 (2004) (quoting
Cronic, 466 U.S. at 658). Davis argues that prejudice should
be presumed because he proceeded to trial with allegedly
unprepared counsel and because no attorney represented
him during plea negotiations.

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No. 04-2349 9
Regarding his representation at trial, even though Borges
arguably abandoned Davis, Zook continued to serve as
counsel. As the evidentiary hearing before the state trial
court demonstrates, Zook was an experienced public
defender who was familiar with the officer and drug
analysts who testified for the prosecution and with Davis’s
case. Zook’s contact with Davis began almost two years
before trial, at the bond reduction hearing. Zook had visited
Davis and, as trial approached, had filed a motion regarding
a potential witness. When the judge asked Zook if he felt
“confident to go ahead” on the morning of trial, he an-
swered affirmatively. Although he had not planned on
beginning trial that day, the circumstances were not so
extraordinary that Zook’s efforts constituted a “denial” of
counsel; Zook did not “entirely fail to subject the prosecu-
tion’s case to meaningful adversarial testing.” Id. Further-
more, the circumstances were not so extraordinary that a
competent attorney familiar with the case and the witnesses
would be unable to perform effectively. Thus, the facts of
this case are not within the ambit of Cronic. Most critically,
Davis consented to proceeding with Zook on the day of
trial. The judge explicitly offered Davis a continuance to
enable him to proceed with the truant attorney Borges, but
Davis chose to proceed with Zook. The fact that the next
trial date might have been another six months in the future
does not undermine the voluntariness of his decision, which
was made after a conference with Zook. The assistance of
counsel that Davis received does not fall within the narrow
exceptions of Cronic.
Regarding the plea negotiations, the record similarly does
not demonstrate that Davis was denied counsel for plea
negotiations. The evidentiary hearing indicates that Borges
did discuss a plea with the prosecutor. The prosecutor
characterized the negotiations as having reached an im-

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10 No. 04-2349
passe. Furthermore, the trial court explicitly warned Davis
that he would not entertain a plea agreement unless it was
finalized on that day of the hearing, at which Zook was
present. Davis stated that he understood and raised
no objection. Under the circumstances, a presumption of
prejudice under Cronic is not warranted. Since prejudice
is not presumed, and since Davis fails to demonstrate
prejudice, his claims of ineffective assistance of counsel
fail on the merits.
III.
Davis’s claims of ineffective assistance of counsel can-
not succeed on the merits because the circumstances do
not warrant the application of Cronic and because he fails to
demonstrate prejudice. We therefore A FFIRM the district
court’s denial of the petition for a writ of habeas corpus.

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No. 04-2349 11
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—2-9-06

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