Elwaldo R. James v. RICKIE HARRISON, Warden of No. 03-6586  Kershaw Correctional Institution

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ELWALDO R. JAMES,
Petitioner-Appellant,
v.
RICKIE HARRISON, Warden of No. 03-6586  Kershaw Correctional Institution;
CHARLES M. CONDON, Attorney
General of the State of South
Carolina,
Respondents-Appellees. 
Appeal from the United States District Court
for the District of South Carolina, at Florence.
Terry L. Wooten, District Judge.
(CA-02-540-4-25BH)
Argued: October 1, 2004
Decided: November 17, 2004
Before NIEMEYER, MOTZ, and KING, Circuit Judges.
Affirmed by published opinion. Judge Motz wrote the opinion, in
which Judge Niemeyer and Judge King joined.
COUNSEL
ARGUED: Joel Morris Bondurant, Jr., HAYNSWORTH SINKLER
BOYD, P.A., Greenville, South Carolina, for Appellant. Samuel
Creighton Waters, Assistant Attorney General, OFFICE OF THE

-- 1 of 10 --

ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South
Carolina, for Appellees. ON BRIEF: Henry Dargan McMaster,
Attorney General, John W. McIntosh, Chief Deputy Attorney Gen-
eral, Donald J. Zelenka, Assistant Deputy Attorney General, Colum-
bia, South Carolina, for Appellees.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
Elwaldo R. James appeals from the order of the district court deny-
ing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C.
§ 2254 (2000). We granted a certificate of appealability with respect
to James’ claim that he was denied effective assistance of counsel
when his attorneys failed to appear during voir dire and jury selection,
obtaining substitute counsel instead. Because we conclude that the
state court’s rejection of this claim was neither contrary to, nor an
objectively unreasonable application of, clearly established Supreme
Court precedent, we affirm.
I.
In September 1993, James was tried in South Carolina state court,
along with eight co-defendants, for conspiring to traffic in crack
cocaine. James retained Hemphill P. Pride and Richard B. Ness to
represent him at trial. Six other attorneys represented the remaining
defendants.
For reasons not entirely clear from the record, neither Pride nor
Ness attended voir dire or jury selection in the case. Ness may have
attended to another matter in federal court at the time; the record pro-
vides no explanation for Pride’s absence other than the statement of
Melvin Roberts, counsel for three of James’ co-defendants and Pam
Neeley, a witness for the prosecution, that "Mr. Pride had to leave."*
*The record reveals no definitive information as to when and on pre-
cisely what charges Roberts represented Neeley. At James’ trial, Neeley
testified that Roberts represented her on "pending" charges of burglary
and grand larceny.
2 JAMES v. HARRISON

-- 2 of 10 --

The following exchange occurred between the state trial judge and
Roberts at the beginning of the trial proceedings:
THE COURT: Mr. Elwaldo Ronaldo James, also known
as Donald Mitchell, and also known as Kojak, would you
stand, please? All right, he is represented by Mr. Hemphill
Pride.
ROBERTS: Mr. Pride had to leave, and Mr. Ness will be
here after lunch. I believe he covered that with the court
before; did he?
THE COURT: We did. I thought he was going to be here
through this process, but is someone acting on his behalf
during this?
ROBERTS: Yes, sir, he asked me to speak up if necessary
and protect him during the time until Mr. Ness gets here. I
told him I would.
THE COURT: Very good.
Following voir dire, Roberts informed the judge that Alford
Haseldin, counsel for another of James’ co-defendants, "will speak for
all defense counsel" in striking the jury, and Haseldin did so. Ness
returned to the courtroom shortly after the jury had been selected. The
record does not tell us exactly when Pride returned, but it is undis-
puted that he was absent during voir dire and jury selection. See Brief
of Appellees at 12.
On September 17, 1993, following a week-long trial, the jury found
James guilty of the charged conspiracy. The court sentenced him to
25 years imprisonment and fined him $50,000.
On October 21, 1997, after years of ultimately unsuccessful direct
appeal proceedings, James filed an application for post-conviction
relief (PCR) in South Carolina state court. The state PCR court held
an evidentiary hearing at which Pride testified that he "was excused
by the court" from appearing at voir dire and jury selection, and that
3 JAMES v. HARRISON

-- 3 of 10 --

James "agreed to my absence." Pride further testified that he and Ness
planned to have Melvin Roberts select the jury for them because Rob-
erts "knew the lay of the land up here" and because using Roberts was
a "plausible method of protecting our client and getting a good jury
seated." "We discussed it with Elwaldo James," Pride said. "He was
in complete concurrence. He raised no exceptions to my absence or
Mr. Ness’s absence or the plan that we had put in place in order to
protect him, in terms of getting a good jury and seating a good jury."
Ness corroborated Pride’s account at the hearing: "Mr. Pride and
I had made arrangements that he was going to be here for a while that
morning to view the jury and/or Mr. Melvin Roberts . . . was going
to view it for us and relay that information because Mr. Roberts was
a local attorney."
Relying on Strickland v. Washington, 466 U.S. 668 (1984), the
PCR court rejected James’ claim, finding that the absence of Pride
and Ness during voir dire and jury selection did not amount to inef-
fective assistance of counsel. The court reasoned:
At first glance, this Court notes that the attorneys’
absence from the jury selection process would appear to be
deficient representation. However, there were thirteen
defendants and eight attorneys in this multi-defendant case.
Neither the applicant nor his attorneys were from this region
of the State. The attorneys for all defendants had to agree on
the strikes which had to be shared. Mr. Pride decided to
defer to Melvin R. Roberts and the other local attorneys to
select the jury. He was adamant that he discussed this with
the Applicant who was in agreement and expressed no
objection to his attorneys’ intent to be absent during the jury
selection process.
. . . .
The Applicant has the burden of proof that his retained
attorneys were ineffective in their assistance and that he was
prejudiced as a result. This Court finds that the Applicant’s
attorneys were not ineffective for failing to directly partici-
pate in jury voir dire and jury selection because they associ-
4 JAMES v. HARRISON

-- 4 of 10 --

ated attorney Melvin Roberts to handle those aspects of the
case on the Applicant’s behalf. Furthermore, the Applicant
has failed to carry his burden of proving he was prejudiced
by the jury voir dire and jury selection processes.
After the South Carolina Supreme Court denied James’ petition for
a writ of certiorari, James filed a federal habeas petition in which he
claimed, inter alia, that he had been deprived of effective assistance
of counsel at a critical stage of the proceedings, i.e., during voir dire
and jury selection. A United States magistrate judge recommended
denying James’ petition and granting the State summary judgment.
The district court followed this recommendation.
Pursuant to the certificate of appealability issued by this court, see
28 U.S.C. § 2253(c), the instant appeal followed.
II.
Before addressing the issue on which we granted a certificate of
appealability, we note the limited nature of our review.
The Antiterrorism and Effective Death Penalty Act of 1996 pro-
vides that:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adju-
dicated on the merits in State court proceedings unless the
adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved
an unreasonable 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 on an unreason-
able determination of the facts in light of the evidence pre-
sented in the State court proceeding.
28 U.S.C. § 2254(d).
5 JAMES v. HARRISON

-- 5 of 10 --

The Supreme Court has explained that under § 2254(d)(1) a state
court decision is "contrary to" clearly established Supreme Court pre-
cedent "if the state court applies a rule that contradicts the governing
law set forth in our cases" or "if the state court confronts a set of facts
that are materially indistinguishable from a decision of this Court and
nevertheless arrives at a result different from our precedent." Williams
v. Taylor, 529 U.S. 362, 405-06 (2000).
A state court decision involves an "unreasonable application" of
Supreme Court precedent under § 2254(d)(1) if it "correctly identifies
the governing legal rule but applies it unreasonably to the facts of a
particular prisoner’s case." Id. at 407-08. An application of Supreme
Court precedent is unreasonable only if it is "objectively unreason-
able." Id. at 409. Importantly, an incorrect or erroneous application of
federal law does not render a state court decision objectively unrea-
sonable. Id. at 410 ("For purposes of today’s opinion, the most impor-
tant point is that an unreasonable application of federal law is
different from an incorrect application of federal law.").
With these principles in mind, we consider the case at hand.
III.
James principally maintains that his retained counsel’s absence
during voir dire and jury selection constituted a complete denial of
counsel during a critical stage of the proceedings. According to
James, in failing to presume prejudice in these circumstances, the
state PCR court acted contrary to, or unreasonably applied, United
States v. Cronic, 466 U.S. 648 (1984).
A.
Specifically, James asserts that the state PCR court improperly ana-
lyzed his claim under Strickland when the claim "should have been
analyzed" under Cronic. See Brief of Appellant at 10.
Strickland and Cronic are companion cases, issued the same day,
applying the same analysis, albeit with a different emphasis. Indeed,
both Strickland and Cronic direct that in order to prevail on an inef-
6 JAMES v. HARRISON

-- 6 of 10 --

fective assistance claim a defendant must ordinarily make two show-
ings. "First, the defendant must show that counsel’s performance was
deficient." Strickland, 466 U.S. at 687; Cronic, 466 U.S. at 666
(explaining that absent specific "circumstances mak[ing] it unlikely
that the defendant could have received the effective assistance," he
can make out an ineffective assistance claim "only by pointing to spe-
cific errors made by trial counsel"). This requires the defendant to
demonstrate that "counsel’s representation fell below an objective
standard of reasonableness." Strickland, 466 U.S. at 687-88; Cronic,
466 U.S. at 666 n.41 (noting that "claims based on specified errors . . .
should be evaluated under the standards enunciated in Strickland").
"Second "the defendant must show that the deficient performance
prejudiced the defense. This requires showing that counsel’s errors
were so serious as to deprive the defendant of a fair trial, a trial whose
result is reliable." Strickland, 466 U.S. at 687.
The Supreme Court also recognized in both Strickland and Cronic
that in certain circumstances "prejudice is presumed" because preju-
dice "is so likely that case-by-case inquiry . . . is not worth the cost."
Strickland, 466 U.S. at 692 (citing Cronic, 466 U.S. at 658). One such
circumstance noted in Strickland is the very one that James contends
applies here: "[a]ctual or constructive denial of the assistance of coun-
sel altogether." Id. at 692. In Cronic, the Court identified several other
circumstances that require a presumption of prejudice, noting that the
"most obvious" of these circumstances involves the one asserted here
— the "complete denial of counsel . . . . at a critical stage of [a defen-
dant’s] trial." Cronic, 466 U.S. at 659.
The central idea animating both cases is that counsel is constitu-
tionally ineffective only when there results an "actual breakdown of
the adversarial process" during the defendant’s trial. Id. at 657-58; see
Strickland, 466 U.S. at 687. Thus, the Court has explained, "the right
to the effective assistance of counsel is recognized not for its own
sake, but because of the effect it has on the ability of the accused to
receive a fair trial." Cronic, 466 U.S. at 658.
In sum, in Strickland the Court set forth the familiar two-step test
that a defendant must ordinarily meet to prevail on an ineffective
assistance claim; in Cronic, the Court reiterated the applicability of
this test. Both cases, however, recognized a limited, but important,
7 JAMES v. HARRISON

-- 7 of 10 --

exception to that test: A defendant need not establish prejudice —
because a court will presume it — when there has been an "[a]ctual
or constructive denial of the assistance of counsel altogether." Strick-
land, 466 U.S. at 692. Moreover, both cases emphasized that the
focus of any ineffective assistance inquiry is on the "adversarial pro-
cess" rather than the "accused’s relationship with his lawyer as such."
Cronic, 466 U.S. at 657 n.21.
Notwithstanding the similar analysis in the two cases, in the years
since their issuance, courts and litigants have in shorthand manner
distinguished a Cronic claim — in which because of some special cir-
cumstance, including complete denial of counsel, a defendant need
not show prejudice — from a Strickland claim — in which a defen-
dant must make that showing. See, e.g., Bell v. Cone, 535 U.S. 685,
693, 695-697 (2002). With this understanding of James’ contention
that his is a Cronic, not a Strickland, claim, we turn to that contention.
B.
The State concedes, as it must, that voir dire and jury selection pro-
ceedings constitute a critical stage of the trial. See, e.g., Gomez v.
United States, 490 U.S. 858, 873 (1989). Thus, if James’ lawyers,
Pride and Ness, had abandoned him — if they had absented them-
selves from these proceedings and no other counsel had represented
James — a reviewing court would have to presume prejudice because
the abandonment would have constituted a "breakdown in the adver-
sarial process." Cronic, 466 U.S. at 657-59, 662.
This is so, the Supreme Court has explained, because "the adver-
sarial process protected by the Sixth Amendment requires that the
accused have counsel acting in the role of an advocate." Id. at 656
(internal quotation marks and citation omitted). But the Court has also
explained that when a proceeding is "tru[ly] adversarial . . . even if
defense counsel may have made demonstrable errors," then "the kind
of testing envisioned by the Sixth Amendment has occurred" and a
reviewing court cannot presume prejudice. Id. To be sure, determin-
ing when a proceeding has been "tru[ly] adversarial" presents chal-
lenges. Given the facts of this case, however, we cannot hold that the
state court ruled contrary to, or unreasonably applied, Supreme Court
precedent in concluding that the jury selection proceedings, though
8 JAMES v. HARRISON

-- 8 of 10 --

flawed, were nonetheless "tru[ly] adversarial" and so prejudice should
not be presumed.
As ill-advised as their absence was, Pride and Ness did not aban-
don James. See United States v. Jackson, 207 F.3d 910, 918-19 (7th
Cir. 2000), vacated in part, 531 U.S. 953 (2000) (holding defense
counsel’s absence did not constitute "abandonment by the lawyer of
his client," which "would require reversal irrespective of prejudice,"
because counsel for co-defendants were present and generally pro-
tected the defendant’s interests). Rather, they obtained Melvin Rob-
erts, a co-defendant’s lawyer, as substitute counsel for James during
the voir dire and jury selection proceedings; and Roberts, along with
the five other defense attorneys present, empowered another defen-
dant’s counsel, Alford Haseldin, to represent all nine defendants in
the jury selection proceedings. James has not suggested any way in
which Roberts or Haseldin failed to protect his interests during voir
dire or jury selection. Indeed, he has not pointed to any issue related
to jury selection that might have affected him differently than his co-
defendants. Cf. Jackson, 207 F.3d at 919. Given these facts, we hold
that the state court did not act contrary to, or unreasonably apply,
Supreme Court precedent in refusing to presume prejudice.
In reaching this holding, we note that our sister circuits have held
or suggested that facts similar to those at hand do trigger the presump-
tion of prejudice. See Olden v. United States, 224 F.3d 561 (6th Cir.
2000); United States v. Patterson, 215 F.3d 776 (7th Cir. 2000);
United States v. Russell, 205 F.3d 768 (5th Cir. 2000). Our holding
presents no conflict with those cases, however, because they did not
involve § 2254 claims, and thus were not subject to that statute’s
stringent standard of review. See Olden, 224 F.3d at 563 (§ 2255 peti-
tion); Patterson, 215 F.3d at 778 (direct appeal); Russell, 205 F.3d at
769 (§ 2255 petition). Our task fundamentally differs from that of the
courts in those cases. They were called upon to determine if a federal
court incorrectly applied established federal law; we have been called
upon to determine if a state court unreasonably applied established
federal law. "[A]n unreasonable application of federal law is different
from an incorrect application of federal law." Williams, 529 U.S. at
410. We cannot conclude the state court acted unreasonably.
9 JAMES v. HARRISON

-- 9 of 10 --

IV.
James alternatively contends that even if his is a Strickland claim
— i.e., even if we cannot presume prejudice — the state PCR court
unreasonably applied Strickland in denying him relief. We disagree.
Strickland directs that "[j]udicial scrutiny of counsel’s performance
must be highly deferential." Strickland, 466 U.S. at 689. Notwith-
standing this deference, we can assume, for purposes of this case, that
the state court applied the first prong of Strickland incorrectly. But in
claims brought under § 2254, "it is not enough to convince a federal
habeas court that, in its independent judgment, the state-court deci-
sion applied Strickland incorrectly." Cone, 535 U.S. at 699 (interpret-
ing 28 U.S.C. § 2254(d)(1)); see also Williams, 529 U.S. at 411.
Rather, as noted above, § 2254(d)(1) requires a habeas petitioner to
show that the state court "applied Strickland to the facts of his case
in an objectively unreasonable manner." Cone, 535 U.S. at 699. That
seems unlikely.
But even if James could meet this difficult standard as to the first
prong of Strickland, his claim fails. For as the PCR court held, James
has failed to meet his burden on the second Strickland prong. He has
offered no evidence of any prejudice resulting from the assertedly
deficient performance of counsel. Even on appeal in this court, James
points to no evidence of actual prejudice. Thus, the PCR court’s
determination — that James had "failed to carry his burden of proving
he was prejudiced" — does not constitute an incorrect application of
Supreme Court precedent, let alone an unreasonable one.
V.
For the reasons stated within, the judgment of the district court is
AFFIRMED.
10 JAMES v. HARRISON

-- 10 of 10 --