Derrick Quintero v. RICKY BELL, Warden

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0150P (6th Cir.)
File Name: 04a0150p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DERRICK QUINTERO,
Petitioner-Appellee,
v.
RICKY BELL, Warden,
Respondent-Appellant.
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No. 99-6724
On Remand from the United States Supreme Court.
No. 98-00246—Thomas B. Russell, District Judge.
Submitted: March 15, 2001
Decided and Filed: May 24, 2004
Before: KEITH, NORRIS, and DAUGHTREY, Circuit
Judges.
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COUNSEL
ON BRIEF: Rickie L. Pearson, OFFICE OF THE
ATTORNEY GENERAL, Frankfort, Kentucky, for
Appellant. Paul L. Whalen, Ft. Thomas, Kentucky, for
Appellee.
2 Quintero v. Bell No. 99-6724
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OPINION
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ALAN E. NORRIS, Circuit Judge. Petitioner Derrick
Quintero brought this action for a writ of habeas corpus in
federal district court, alleging that he had suffered ineffective
assistance of counsel because his attorney failed to object to
the presence of seven jurors who had served on the juries that
convicted his co-conspirators. The district court conditionally
granted the writ, and we affirmed in a published opinion.
Quintero v. Bell, 256 F.3d 409 (6th Cir. 2001). Respondent
warden filed a petition for certiorari with the United States
Supreme Court. The Supreme Court granted certiorari and
vacated our opinion, remanding for reconsideration in light of
its opinion in Bell v. Cone, 535 U.S. 685 (2002). Bell v.
Quintero, 535 U.S. 1109 (2002). Because Cone is
distinguishable on its facts, we affirm the judgment of the
district court and reinstate our original opinion.
In Cone, the Supreme Court reversed a decision of this
court granting a petitioner a writ of habeas corpus. In that
case, the petitioner, Cone, had been sentenced to death at a
hearing in which his counsel failed to introduce any evidence
of mitigation or make a closing statement. We determined
that defense counsel’s failures were so egregious that they
permitted a presumption of prejudice, relying on the Supreme
Court’s decision in United States v. Cronic, 466 U.S. 648
(1984). In Cronic, the Supreme Court permitted prejudice to
be presumed where “counsel entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing,
[creating] a denial of Sixth Amendment rights that ma[de] the
adversary process itself presumptively unreliable.” Cronic,
466 U.S. at 659.
The Supreme Court disagreed with our application of the
rule in Cronic to Cone’s case. The Court determined that
because “his counsel [did not] fail[] to oppose the prosecution

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No. 99-6724 Quintero v. Bell 3
throughout the sentencing proceeding as a whole, but . . .
failed to do so at specific points[,]” Cone was not entitled to
a presumption of prejudice, because that presumption arose
under Cronic only “if counsel entirely fail[ed] to subject the
prosecution’s case to meaningful adversarial testing.” Cone,
535 U.S. at 697 (quoting Cronic, 466 U.S. at 659) (emphasis
in original).
On reviewing the Supreme Court’s decision in Cone and
the facts of this case, we conclude that the case at bar is
distinguishable. Because the alleged deficient performance in
Cone affected only specified parts of Cone’s trial, prejudice
could not be presumed. In the case at bar, on the other hand,
counsel’s acquiescence in allowing seven jurors who had
convicted petitioner’s co-conspirators to sit in judgment of his
case surely amounted to an abandonment of “meaningful
adversarial testing” throughout the proceeding, making “the
adversary process itself presumptively unreliable.” Cronic,
466 U.S. at 659. Accordingly, Cone is distinguishable, and
petitioner is entitled to a presumption of prejudice.
For the foregoing reasons, the judgment of the district court
is affirmed and our previous opinion in this matter, Quintero
v. Bell, 256 F.3d 409 (6th Cir. 2001), is reinstated.

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