Redman v. State

768 A.2d 656, 363 Md. 298, 2001 Md. LEXIS 101

Opinions

RAKER, Judge.

This is a case arising out of a petition for relief under the Post Conviction Procedure Act, Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, § 645A, alleging ineffective assistance of counsel under the Sixth Amendment to the United States Constitution. The question we must decide is whether Petitioner’s federal constitutional right to effective assistance of counsel under the Sixth Amendment was violated because his trial counsel was unaware that, based on Article IV, § 8 of the Maryland Constitution, Petitioner, who was charged with first degree murder and subject to the death penalty, had an automatic right to remove the case to another county. The Circuit Court for Allegany County granted Petitioner a new trial, and the Court of Special Appeals reversed the Circuit Court. This Court granted the Petition for Writ of Certiorari, and we shall affirm the Court of Special Appeals.

I.

Joseph Mario Redman, Petitioner, was indicted in 1994 by the Grand Jury for Allegany County for first degree murder, robbery, attempted first degree rape and other related offenses. The State filed a notice of intention to seek the death penalty. The jury convicted Petitioner of first degree murder and attempted first degree rape. Petitioner waived his right to be sentenced by the jury and elected to be sentenced by the court. See Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 413(b)(3); Ware v. State, 360 Md. 650, 663, 759 A.2d 764, 770 (2000). The court sentenced Petitioner to life without parole on the murder conviction and to ten years consecutive on the attempted rape conviction. In an unreported opinion, the Court of Special Appeals affirmed the judgments of the Circuit Court.

On April 11, 1997, Redman filed in the Circuit Court a Petition for Post Conviction Relief, contending, inter alia, that his trial counsel rendered ineffective assistance by failing to seek a change of venue. Petitioner argued that because his trial counsel was unaware of the Maryland constitutional right affording automatic removal in capital cases, his performance was deficient under the Sixth Amendment.

At the post-conviction hearing, Petitioner’s trial counsel admitted that he was unaware that a capital defendant has the right of automatic removal of the case to another county. He considered filing a motion for change of venue, but concluded that it was not in Petitioner’s interest to do so for several reasons. First, he felt that seeking removal would have been a double edged sword because a court hearing on the motion would likely have generated publicity anew.¹ Second, because a defendant cannot select the new county, removal could put a defendant in a worse position because the case could be removed to a less favorable county.² He also weighed the impact of removal in light of the racial aspect of the case and any potential local biases and prejudices.³

Defense counsel then addressed his preparation for voir dire and the procedures he followed during the jury selection process. He stated that he consulted with a colleague who had tried a death penalty case and who had provided him with sample voir dire questions. Counsel testified that, at the conclusion of the voir dire, he was satisfied with the impartiality of the jury.

Petitioner testified at the hearing that he wanted his case removed from Allegany County and that he had expressed his desire to his attorney.⁴ He did not know, and his lawyer did not inform him, that he had an automatic removal right. He stated that, had he known of the right, he would have “demanded” to exercise it.

The trial court granted post-conviction relief and ordered a new trial. The court held: “While it is not a due process violation if [the] accused is not advised of the right, counsel’s failure to advise Petitioner of the right casts significant doubt upon the fundamental reliability of the proceeding in terms of an ineffective assistance of counsel analysis” (internal citation omitted).

The State’s Application for Leave to Appeal was granted by the Court of Special Appeals, and that court reversed the post-conviction court. We issued a Writ of Certiorari on Petitioner’s motion and affirm the intermediate appellate court.

Petitioner argues that he is entitled to a new trial with the automatic right of removal because his trial counsel did not file a suggestion of removal at his 1994 trial. He maintains that counsel’s lack of knowledge of Article IV, § 8(b) of the Maryland Constitution constituted ineffective assistance of counsel under the Sixth Amendment. Relying primarily on Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), he argues that prejudice should be presumed because the right of removal is a fundamental right or qualifies as a structural error not susceptible to establishing prejudice.⁵ He further argues that assuming, arguendo, that he must prove prejudice, the denial of the right to make his defense before a different jury constitutes prejudice.

The State’s argument is threefold. First, the State argues that counsel’s performance was not deficient because whether he knew that removal was a matter of right in a capital case matters not; the decision to seek removal remains a matter of trial tactics, and counsel evaluated properly the considerations in filing a suggestion of removal. In short, the State maintains that trial counsel’s advice to Petitioner not to seek removal should be viewed as a reasonable professional judgment.⁶ Second, the State argues lack of prejudice. Third, citing the Maryland Constitution, Art. IV, § 8(c), the State argues that Petitioner is not entitled to a new trial because, at any new trial, he would not be entitled to automatic removal as a matter of law.

II.

The Maryland Constitutional Right, Art. IV, § 8

Article IV, § 8(b) of the Maryland Constitution provides as follows:

In all cases of presentments or indictments for offenses that are punishable by death, on suggestion in writing under oath of either of the parties to the proceedings that the party cannot have a fair and impartial trial in the court in which the proceedings may be pending, the court shall order and direct the record of proceedings in the presentment or indictment to be transmitted to some other court having jurisdiction in such case for trial.⁷

See Maryland Rule 4 — 254(b)(1) (implementing the constitutional provision).

The right of removal is absolute where the criminal offense is punishable by death. See Md. Const. art. IV, § 8(b); Maryland Rule 4 — 254(b)(1); Johnson v. State, 271 Md. 189, 191, 315 A.2d 524, 526 (1974). Writing for the Court in Johnson, Judge Eldridge stated:

Article IV, § 8, of the Maryland Constitution gives a criminal defendant an absolute right of removal to another court if he is charged with an offense which is or may be “punishable by death.” He need do no more than file in writing, under oath, a suggestion that he “cannot have a fair and impartial trial in the court” in which the case is pending. In criminal cases not punishable by death, the constitutional provision requires the defendant to go further and “make it satisfactorily appear to the Court that such suggestion is true, or that there is reasonable ground for the same.”

Johnson, 271 Md. at 191, 315 A.2d at 526.

In Heslop v. State, 202 Md. 123, 126, 95 A.2d 880, 881 (1953), Judge Delaplaine traced the history of the right of removal and noted that, although the history is checkered, the right has nonetheless been considered of such significance that it has been incorporated in some form in the organic law of this State for more than a century and a half. In January 1805, the Legislature passed an Act proposing an Amendment to the Constitution of 1776 that, inter alia, gave courts discretion to remove criminal cases where any party suggested in writing that a fair and impartial trial could not be had in the court in which the case was pending. See id. at 126-27, 95 A.2d at 881. The Act was later confirmed, and a discretionary right of removal in all criminal cases became part of the Maryland Constitution. The Constitutional Convention of 1851 revised this provision by eliminating the discretionary aspect and gave the right of removal to the defendant in every criminal case. Reports of gross abuse⁸ of the unlimited removal right led the Constitutional Convention of 1864 to return the power of removal to the court’s discretion, and the Constitution was amended to so provide. See Md. Const. art. IV, § 9 (amended 1864); Heslop, 202 Md. at 127-28, 95 A.2d at 882. The rule was again changed by the Constitutional Convention of 1867, removing once more the court’s discretion and making the right automatic. See Md. Const. art. IV, § 8 (amended 1867); Heslop, 202 Md. at 127-28, 95 A.2d at 882. In 1874, the Legislature, again hearing reports of abuse of the unlimited removal right, proposed an Amendment to the 1867 Constitution to provide automatic removal only in those cases where the crime was punishable by death. See Heslop, 202 Md. at 129, 95 A.2d at 882 (citing 1874 Maryland Laws, ch. 364). This Amendment was ratified by the Maryland voters in 1875 and reflects the current constitutional provision authorizing unlimited removal in criminal cases where the penalty may be death.

A review of the history of the removal provision demonstrates “a shifting concern between having a broad right of removal and having a very limited right because of the abuse associated with requests for removal.” Johnson, 271 Md. at 194, 315 A.2d at 527-28. The current version reflects a narrow right, applicable only to those cases eligible for the death penalty. Noting that no other intent is revealed by the constitutional history, we observed that “[i]f we were to hold that the absolute, right of removal applied to certain offenses formerly punishable by death, we would be broadening the right, not limiting it.” Id. at 194-95, 315 A.2d at 528 (emphasis in original).

The purpose of the removal provision is to provide for a method of escape from local community prejudice and to allow for a case to be tried in a different locality, free from the local community influence, bias, or prejudice that might arise in the locale in which the case originated. Today, however, the right clearly is limited to capital cases. We have stated that “there is no basis in the language of the constitutional provision relating to removal for inferring any purpose other than providing an additional procedural safeguard in a case where a criminal defendant might in fact be put to death.” Id. at 193, 315 A.2d at 527.

Petitioner argues that, because his trial counsel did not file for removal of his case to another county, he is entitled to a new trial with the automatic right of removal. There is no authority for this Court, or the Circuit Court, to grant him that right. The source of the right to automatic removal, in the first instance, is the Maryland Constitution. At any subsequent trial, Petitioner could not be eligible for the death penalty.⁹ As we indicated in Johnson, if we were to afford the unlimited right of removal in the instant case, where the death penalty was only formerly available, we would be broadening the right, something we are without the authority to do. See id. at 194-95, 315 A.2d at 528.

III.

Ineffective Assistance of Counsel

In order to assess the adequacy of counsel’s representation under the Sixth Amendment, we apply the standards enunciated by the Supreme Count in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).¹⁰ See Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Wiggins v. State, 352 Md. 580, 724 A.2d 1 (1999), cert denied, 528 U.S. 832, 120 S.Ct. 90, 145 L.Ed.2d 76 (1999); Oken v. State, 343 Md. 256, 681 A.2d 30 (1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 681 (1997); Bowers v. State, 320 Md. 416, 578 A.2d 734 (1990). As the Supreme Court enunciated, to establish a claim of ineffective assistance of counsel, Petitioner must prove “that counsel’s performance fell below an objective standard of reasonableness and that the deficient performance prejudiced the defense, which requires a showing that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Williams, 529 U.S. at 391, 120 S.Ct. at 1511-12, 146 L.Ed.2d 389. See Bowers, 320 Md. at 427, 578 A.2d at 739 (holding that, to establish prejudice, Petitioner must show that there is a substantial possibility that the result would have been different). Thus, the inquiry has two foci: first, a performance evaluation under prevailing professional norms; and second, an inquiry into whether the defendant suffered prejudice as a result of deficient performance. The prejudice component of the Strickland test “focuses on the question whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.” Williams, 529 U.S. at 393 n. 17, 120 S.Ct. at 1513 n. 17, 146 L.Ed.2d 389.

We agree with the post-conviction court’s conclusion that trial counsel’s performance was substandard. Redman’s trial counsel admitted that he was unaware of the Maryland constitutional right of automatic removal in capital cases. Failure to inform Redman of this right was deficient performance of his duties as counsel.

This conclusion leads us to the second question: whether the deficient performance prejudiced Petitioner. To establish prejudice, Petitioner must show that there is a substantial possibility that, but for counsel’s unprofessional error, the result would have been different. See Bowers, 320 Md. at 427, 578 A.2d at 739.

We address first Petitioner’s argument that prejudice should be presumed. The Supreme Court fashioned an excep tion to the Strickland prejudice prong in United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 2046, 80 L.Ed.2d 657 (1984), reasoning that “there are circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” The Cronic Court, actually in dicta, stated that in rare circumstances, prejudice might be presumed “without inquiry into counsel’s actual performance at trial.” Id. at 662, 104 S.Ct. at 2048, 80 L.Ed.2d 657. The Supreme Court noted:

Circumstances of that magnitude may be present on some occasions when although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial.

Id. at 659-60, 104 S.Ct. at 2047, 80 L.Ed.2d 657. Thus, the Court carved out a narrow exception to the general rule that in ineffective assistance of counsel cases under the Sixth Amendment, a defendant must prove that he or she was prejudiced by counsel’s deficient performance.

In considering the presumed prejudice exception of Cronic, the United States Court of Appeals for the First Circuit said the following:

But, the approach suggested in this statement is in all events the exception, not the rule — and it can be employed only if the record reveals presumptively prejudicial circumstances such as an outright denial of counsel, a denial of the right to effective cross-examination, or a complete failure to subject the prosecution’s case to adversarial testing. The Cronic Court itself warned that, in most cases a showing of actual prejudice remained a necessary element. The Court stated: “there is generally no basis for finding a Sixth Amendment violation unless the accused can show how specific errors of counsel undermined the reliability of the finding of guilt.”

Scarpa v. DuBois, 38 F.3d 1, 12 (1st Cir.1994) (citation omitted). In rejecting an expansive reading of the Cronic language, the Scarpa court interpreted the exception as follows:

In our view, the Court’s language in Cronic was driven by the recognition that certain types of conduct are in general so antithetic to effective assistance — for example, lawyers who leave the courtroom for long stretches of time during trial are unlikely to be stellar advocates in any matter — that a case-by-case analysis simply is not worth the cost of protracted litigation. No matter what the facts of a given case may be, this sort of conduct will almost always result in prejudice. But attorney errors particular to the facts of an individual case are qualitatively different. Virtually by definition, such errors “cannot be classified according to likelihood of causing prejudice” or “defined with sufficient precision to inform defense attorneys correctly just what conduct to avoid.” Consequently, the Court has declined to accord presumptively prejudicial status to them.

Id. at 12-13 (citations omitted).

Other courts have been very cautious in presuming prejudice and require a showing of actual prejudice in most cases. See, e.g., United States v. Thompson, 27 F.3d 671, 676 (D.C.Cir.1994), cert. denied, 513 U.S. 1050, 115 S.Ct. 650, 130 L.Ed.2d 554 (1994); United States v. Baldwin, 987 F.2d 1432, 1437-38 (9th Cir.1993), cert. denied, 508 U.S. 967, 113 S.Ct. 2948, 124 L.Ed.2d 696 (1993); McInerney v. Puckett, 919 F.2d 350, 352-53 (5th Cir.1990); United States v. Reiter, 897 F.2d 639, 644-45 (2d Cir.1990), cert. denied, 498 U.S. 817, 111 S.Ct. 59, 112 L.Ed.2d 34 (1990); Henderson v. Thieret, 859 F.2d 492, 499-500 (7th Cir.1988), cert. denied, 490 U.S. 1009, 109 S.Ct. 1648, 104 L.Ed.2d 163 (1989). Courts have applied the Cronic presumed prejudice exception in cases where no attorney appeared, see United States v. Mateo, 950 F.2d 44, 48-50 (1st Cir.1991); where defense counsel sat mute throughout the entire re-sentencing proceeding, see Tucker v. Day, 969 F.2d 155, 159 (5th Cir.1992); and where defense counsel was absent from the courtroom during a critical stage of the trial, see Green v. Arn, 809 F.2d 1257, 1259-64 (6th Cir.1987), vacated, 484 U.S. 806, 108 S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated, 839 F.2d 300 (1988), cert. denied, 488 U.S. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979 (1989) (holding that absence of defense counsel during cross-examination of key government witness by attorney for a codefendant was presumptively prejudicial). Proof of actual prejudice “is ... required where the fundamental fairness of the challenged proceeding has not been affected and the integrity of the legal process has not been jeopardized.” United States v. Swanson, 943 F.2d 1070, 1073 (9th Cir.1991).

Counsel’s error in this case is not the type in which prejudice will be presumed. As we have explained, the Maryland constitutional right of automatic removal is triggered by filing a suggestion of removal by either the State or the defendant. Ordinarily, a capital defendant will discuss the right with counsel and decide whether to file a suggestion of removal, in wilting, under oath stating that he or she “cannot have a fair and impartial trial in the court” in which the case is pending. Md. Const. art. IV, § 8(b). Neither party is required to exercise the right.¹¹ Thus, trial counsel’s failure to inform Petitioner of his constitutional right to automatic removal, without more, does not necessarily render the resulting criminal trial fundamentally unfair or unreliable. Unlike counsel’s absence during a critical part of the trial or counsel remaining silent throughout the trial, failing to remove a trial is not a circumstance “so likely to prejudice the accused that the cost of litigating [its] effect in a particular case is unjustified.” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046, 80 L.Ed.2d 657. If it were otherwise, the right of removal would not be optional.

Strickland requires an inquiry into the existence of actual prejudice. Petitioner must show that “ ‘that there is a substantial possibility that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Perry v. State, 357 Md. 37, 80, 741 A.2d 1162, 1185 (1999) (quoting Oken v. State, 343 Md. 256, 284, 681 A.2d 30, 44 (1996)). See Bowers v. State, 320 Md. 416, 425-27, 578 A.2d 734, 738-39 (1990).

The Court of Special Appeals, in considering the prejudice prong of Strickland, concluded that Respondent failed to shoulder his burden to establish prejudice. Writing for a divided panel, Chief Judge Joseph F. Murphy, Jr. explained:

In this case, if (1) the State had not sought the death penalty in the first place, and (2) appellee’s right of removal would therefore have been controlled by Maryland Rule 4-254(b)(2), the considered recommendation against filing a suggestion of removal would not have been deficient in any way, because the “cost/benefit” analysis undertaken by ap-pellee’s counsel was well within the range of competent professional judgment in a non-capital case. Because appel-lee was not sentenced to death, it is clear that this is a case in which the “outcome determination” test favors the State rather than the petitioner. Prejudice is therefore lacking as a matter of law. (footnotes omitted).

We agree.

We hold that Petitioner has not satisfied the prejudice prong of the Strickland analysis. He has not met his burden to establish that, but for counsel’s error, there is a substantial possibility that the outcome of the trial would have been different. Petitioner did not receive the death penalty; his lawyer considered the costs and benefits of removal, and his lawyer conducted a professional and extensive voir dire examination of the jurors. He was satisfied, after jury selection, that an impartial jury had been impaneled. The record is devoid of any evidence suggesting that Petitioner was denied a fair trial in Allegany County. In sum, Petitioner simply has adduced no evidence that the proceeding was fundamentally unfair or unreliable.

We also need to focus on the purpose of the Maryland Constitutional right.¹² As we have pointed out, it is to provide an additional procedural safeguard in a case where a criminal defendant might in fact be put to death. Because death is indeed different, courts have provided many additional or heightened procedural safeguards in capital cases.

The case of Rembert v. Dugger, 842 F.2d 301 (11th Cir.1988), cert. denied, 488 U.S. 969, 109 S.Ct. 500, 102 L.Ed.2d 536 (1988), is instructive. In a death penalty proceeding, Rembert was charged with first degree murder and attempted armed robbery. Three times during the jury trial, Rembert attempted to waive the statute of limitations for the lesser included offenses of the first degree murder charge. Under Florida law, in a first degree murder case, the jury must be instructed on the lesser offense of second degree murder, except where the statute of limitations has run on the lesser offense. Id. at 302 n. 2 The trial court would not accept the waiver and refused to instruct the jury on the lesser charges because they were barred by the applicable statute of limitations.

Rembert was convicted of first degree felony murder, with a recommendation of a life sentence, which the judge imposed. Rembert sought habeas corpus relief in the United States District Court for the Northern District of Florida. The district court denied relief and the United States Court of Appeals for the Eleventh Circuit affirmed. See id. at 301. The court held that the trial court erred in not accepting Rembert’s waiver of the statute of limitations. Id. at 303. The court pointed out that, notwithstanding the state law on the effectiveness of waiver, the “right to lesser included offense instructions in capital cases is, however, a matter of federal constitutional law.” Id. at 302 (citing Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980)) (emphasis added). Although in this death penalty case, the jury had before it two options death or life imprisonment it “did not have before it the ‘third option’ of convicting and sentencing Rembert for a lesser included offense of first degree murder.” Id. at 303 (quoting Beck, 447 U.S. at 637, 100 S.Ct. at 2389, 65 L.Ed.2d 392).

Concluding that the case was no longer a capital case, however, the court affirmed, denying Rembert a new trial. The court reasoned as follows:

The constitutional violation must, however, be assessed in light of the trial court’s imposition of a life sentence. When Rembert received a life sentence, the concern that gave rise to the right was eliminated. The danger of an unwarranted death sentence ended when Rembert was given life. The constitutional error by the state trial judge in this case in failing to instruct the jury concerning lesser included offenses was rendered harmless by the jury’s imposition of a life sentence.

Id. (footnote omitted).

Similarly, in the instant case, the error must be assessed in light of the life sentence imposed and the purpose of the right at issue. This case is no longer a capital case, and at any retrial, were we to order one, Petitioner would not be entitled to the heightened procedural protections of a capital case. He would not be entitled to the benefit of the automatic right of removal but would be subject to the discretionary provision. Consequently, one more fair trial would not revive the lost chance.

We hold that the trial court was clearly erroneous in granting Petitioner post-conviction relief. Petitioner is not entitled to a new trial.

JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS TO BE PAID BY PETITIONER.

Dissenting opinion by CATHELL, J., in which BELL, C.J., joins in.

Footnotes

1

. Despite apparent initial local media interest in the crime and the charging of Redman, the media had ignored the case for the three months prior to when Redman’s trial counsel decided not to seek removal.

2

. It appears that Redman’s trial counsel meant, by less favorable, a county that may have had a history of imposing a sentence of death more often than Allegany County.

3

. Redman is African American and the victim was Caucasian.

4

. Redman’s trial counsel testified he did not recall whether Redman wanted the case removed.

5

. Petitioner is inappropriately scrambling the eggs of Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Fulminante was a refinement of the federal harmless error analysis; Strickland involved an evaluation of counsel’s performance and an assessment of prejudice. Our research has disclosed only one case actually applying structural error analysis as a part of the Strickland prejudice inquiry. See McGurk v. Steinberg, 163 F.3d 470 (8th Cir.1998).

In Arizona v. Fulminante, 499 U.S. 279, 307-09, 111 S.Ct. 1246, 1264-65, 113 L.Ed.2d 302 (1991), the Supreme Court distinguished between mere "trial error” susceptible to harmless error assessment, and errors that amounted to "structural defects” in the trial itself. A "trial error” is an error "which occurred during the presentation of the case to the jury and which may therefore be quantitatively assessed in the context of other evidence presented in order to determine whether its admission is harmless.” Id. at 307-08, 111 S.Ct. at 1264, 113 L.Ed.2d 302. A structural error is an error that affects "the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id. at 310, 111 S.Ct. at 1265, 113 L.Ed.2d 302. Such errors affect the entire trial process itself, affecting the conduct of the trial from beginning to end, see id. at 309, 111 S.Ct. at 1265, 113 L.Ed.2d 302, and "necessarily render a trial fundamentally unfair.” Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). It is because structural error is impossible to quantify that it defies analysis by the harmless error standard. The Supreme Court concluded that, when structural error is present, the "criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence,” thereby mandating reversal of the conviction. Fulminante, 499 U.S. at 307-08, 111 S.Ct. at 1265, 113 L.Ed.2d 302.

As in the Cronic presumed prejudice cases, see United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), the Supreme Court has found an error to be structural and subject to automatic reversal in a very limited number of cases. See Johnson v. United States, 520 U.S. 461, 468, 117 S.Ct. 1544, 1549, 137 L.Ed.2d 718 (1997). Moreover, in those cases where the Supreme Court, and indeed other courts, have found structural error mandating automatic reversal, the errors appear to be of constitutional magnitude. See Duest v. Singletary, 997 F.2d 1336, 1338 n. 3 (11th Cir.1993), cert. denied, 510 U.S. 1133, 114 S.Ct. 1107, 127 L.Ed.2d 418 (1994) ("Structural defects ... involve deprivations of constitutional protections so basic that in their absence no criminal trial can be deemed reliable ...”); Lyons v. United States, 683 A.2d 1066, 1071 (D.C.1996) (Fulminante’s discussion of "structural defects” applied only to certain constitutional errors that were too fundamental to be harmless). Such defects include a defective reasonable doubt instruction, see Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); racial discrimination in grand jury selection, see Vasquez v. Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986); denial of a public trial, see Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); total deprivation of counsel, see Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); and a judge who is not impartial, see Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).

6

. We reject out of hand the State’s argument that defense counsel’s “blunder” in this case was trial strategy. We cannot fathom how counsel’s conduct can be considered trial strategy if counsel did not know of the removal right.

7

. In all other noncapital criminal and civil cases, the right of removal is discretionary. Article IV, § 8(c) of the Maryland Constitution states:

In all other cases of presentment or indictment, and in all suits or actions at law or issues from the Orphan’s Court pending in any of the courts of law in this State which have jurisdiction over the cause or case, in addition to the suggestion in writing of either of the parties to the cause or case that the party cannot have a fair and impartial trial in the . court in which the cause or case may be pending, it shall be necessary for the party making the suggestion to make it satisfactorily appear to the court that the suggestion is true, or that there is reasonable ground for the same; and thereupon the court shall order and direct the record of the proceedings in the cause or case to be transmitted to some other court, having jurisdiction in the cause or case, for trial. The right of removal also shall exist on suggestion in a cause or case in which all the judges of the court may be disqualified under the provisions of this Constitution to sit. The court to which the record of proceedings in such suit or action, issue, presentment or indictment is transmitted, shall hear and determine that cause or case in the same manner as if it had been originally instituted in that Court. The General Assembly shall modify the existing law as may be necessary to regulate and give force to this provision.

8

. Heslop points out that the automatic right of removal "had caused long postponement of trial and in addition had caused waste of time and money because the witnesses were compelled to travel to some other county seat, when actually the party who applied for the removal could have had a fair and impartial trial in the court where the case originated.” Heslop v. State, 202 Md. 123, 127-28, 95 A.2d 880, 882 (citing Debates of the Constitutional Convention of 1864 at 1403-1405).

9

. Petitioner would not be eligible for the death penalty if he were to receive a new trial. See Harris v. State, 312 Md. 225, 239, 539 A.2d 637, 644 (1988). Where a defendant has received a sentence less than death following a sentencing hearing, the Fifth Amendment’s Double Jeopardy clause protects a defendant from retrial on the issue of punishment. See Bullington v. Missouri, 451 U.S. 430, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981).

In Bullington, 451 U.S. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d 270, the Supreme Court held that, once a defendant has been tried for a capital crime and, as the result of a separate sentencing proceeding that "resembles a trial on the issue of guilt or innocence,” the death penalty was not imposed, a defendant may not be retried and sentenced to death. The Court reasoned that "the sentence of life imprisonment which petitioner received at his first trial meant that ‘the [trier of fact] has already acquitted the defendant of whatever was necessary to impose the death sentence.’ ” Id. at 445, 101 S.Ct. at 1861, 68 L.Ed.2d (citation omitted). Once the State has failed to justify the death penalty in its " 'opportunity to offer whatever proof it could assemble, the State is not entitled to another.’ ” Id. at 446, 101 S.Ct. at 1862, 68 L.Ed.2d 270 (internal citation omitted). To allow the State to seek the death penalty a second time would violate the Double Jeopardy clause of the Fifth Amendment. See id.

This Court recognized, in Harris, 312 Md. at 239, 539 A.2d at 644, that Maryland’s capital sentencing procedure, like the sentencing procedure in Bullington, affords a defendant protections characteristic of a criminal trial. It includes the presentation of evidence and the opportunity for rebuttal and aggravating and mitigating factors must be proven beyond a reasonable doubt. See Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Art. 27, § 413.

10

. The dissent takes issue with the Court’s application of the Strickland analysis. See dissenting op. at 317, 768 A.2d at 666 (stating “Strickland should not be the be all and end all of constitutional interpretation, even in a post-conviction context”). Whether the dissent likes it or not, the United States Supreme Court has made it patently clear that the Strickland analysis controls in assessing whether, under the Sixth Amendment, effective assistance of counsel has been denied. See, e.g., Williams v. Taylor, 529 U.S. 362, 393, 120 S.Ct. 1495, 1513, 146 L.Ed.2d 389 (2000) (noting that "[c]ases such as Nix v. Whiteside, 475 U.S. 157, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986), and Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), do not justify a departure from a straightforward application of Strickland when the ineffectiveness of counsel does deprive the defendant of a substantive or procedural right to which the law entitles him”).

Moreover, even if we were to analyze the claim under Article 21 of the Maryland Declaration of Rights, our analysis would not be any different.

11

. Had Petitioner received the death penalty, he would have been deprived of an added procedural protection entitling him to a new trial with the automatic right of removal. This is not such a case.

12

. The dissent is premised upon a belief that Petitioner was denied a right guaranteed by the Maryland Constitution. See dissenting op. at 317, 768 A.2d at 666. This is not so. Inasmuch as Petitioner never requested removal of his case, he was not denied a right under the Maryland Constitution. The only question Petitioner raised before this Court is whether he was denied his right to effective assistance of counsel under the Sixth Amendment to the United States Constitution.

If Petitioner had asked for and had been denied his right of removal, our analysis would be different. The case would then be in the posture of an Article IV, § 8 violation, and Maryland constitutional law would apply, not the law of effective assistance of counsel.