UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
00-50296 Summary Calendar __________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHNNY ALBERT MARTINEZ, also known as Red Rider,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas (W-99-CV-264 & W-95-CR-7-11) ______________________________________________ September 21, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny Albert Martinez, together with numerous codefendants,
was charged with conspiracy to possess marijuana with intent to
distribute and with possession of marijuana with intent to
distribute. A jury found Martinez guilty of the conspiracy charge
and not guilty of the substantive offense. The district court
sentenced Martinez to a term of 151 months of imprisonment and a
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. five-year term of supervised release. This Court affirmed his
conviction on direct appeal. See United States v. Cortinas, 142
F.3d 242 (5th Cir. 1998).
Subsequently, Martinez filed a motion to vacate his sentence
under 28 U.S.C. § 2255 in the district court. After the government
had responded, Martinez filed a reply brief in which he raised for
the first time the claim of denial of counsel at a critical stage
of the proceedings. The district court denied relief without
addressing the newly argued claim.
Martinez filed a notice of appeal and application for a
certificate of appealability (COA). The district court denied a
COA. Martinez subsequently requested a COA of this Court.
Ultimately, we granted a COA on the following issues: (1) whether
the district court erred in failing to address Martinez’s reply
brief as an implicit motion for leave to amend his § 2255 motion;
(2) whether Martinez is procedurally barred from raising his claim
that counsel was absent at a critical stage because he had not
raised the issue on direct appeal; and (3) whether Martinez has set
forth a valid claim of denial of counsel.
ANALYSIS
Martinez claims that because his counsel was not present when
the district court responded to a note from the jury, he was denied
the assistance of counsel at a critical stage, and thus prejudice
2 should be presumed.1 Relief under § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and which
would, if condoned, result in a complete miscarriage of justice.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). In
reviewing the district court’s denial of relief, this Court
examines the factual findings for clear error and conclusions of
law de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.
1994).
Martinez’s convictions are related to a drug-smuggling
organization headed by Daniel Nieto. During its deliberations, the
jury requested a copy of the transcript of Nieto’s testimony. The
district court noted that although the attorneys had been
instructed to provide a telephone number, the court was unable to
contact three attorneys, including Martinez’s lawyer. Four
attorneys were present in the courtroom. After receiving no
objection from those attorneys, the district court advised the jury
that it could provide a transcript only if needed to answer a very
specific question and that the jury should try to frame a question
“as carefully as you can.” The court also informed the jury that
1 Martinez asserts that the district court erred in denying his implicit motion to amend his complaint with the issue of denial of counsel. Additionally, the government argues that this claim is procedurally barred. Because we conclude that Martinez’s denial of counsel claim fails on the merits, we do not reach the arguments with respect to amending the complaint and procedural bar.
3 it would probably take several hours for the testimony to be
transcribed. The jury apparently made no further requests.
Citing United States v. Cronic, 466 U.S. 656, 104 S.Ct. 2039
(1984), Martinez asserts that because he was denied counsel during
a critical stage, he is entitled to relief without a showing of
prejudice. Recently, we have explained “that the Sixth Amendment
principle animating Cronic's presumption of prejudice is the
fundamental idea that a defendant must have the actual assistance
of counsel at every critical stage of a criminal proceeding for the
court's reliance on the fairness of that proceeding to be
justified.” Burdine v. Johnson, 2001 WL 914267, *9 (5th Cir. Aug.
13, 2001) (en banc). Although Cronic did not provide much guidance
with respect to what parts of a trial are "critical," this Court
had gleaned the following criteria:
First, there must be a denial of such significance that it makes the adversary process itself unreliable. [citation omitted]. Second, the Cronic court makes clear that "only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial."
United States v. Russell, 205 F.3d 768, 772 (5th Cir. 2000)
(quoting Cronic, 466 U.S. at 659, 662, 104 S.Ct. at 2047, 2048).
We are wholly unpersuaded that counsel’s absence under the
above-described circumstances either constituted a denial of such
significance that it made the adversary process itself unreliable
4 or that the surrounding circumstances justify a presumption of
ineffectiveness without examining counsel’s actual performance.
No evidence was introduced to the jury. Cf. Burdine, 2001 WL
914267, *9 (holding that counsel’s repeated unconsciousness through
not insubstantial portions of the critical guilt-innocence phase
while evidence was being introduced against petitioner warranted a
presumption of prejudice); United States v. Russell, 205 F.3d 768,
772 (5th Cir. 2000) (finding a critical stage based on counsel’s
two-day absence during which the government presented evidence that
“inferentially increased the taint of guilt” of the defendant).
Further, we discern no other circumstance surrounding counsel’s
brief absence that would render the adversary process unreliable.
Indeed, the record reveals precisely what occurred during the
brief, finite time counsel was absent. The jury’s note provided as
follows: “Could we have a copy of the transcript of Daniel Nieto’s
testimony?” After inquiring whether any of the attorneys present
had an objection, the district court instructed the jury:
Ladies and Gentlemen: We are only able to supply a transcript of testimony if it is necessary to assist you in answering a very specific question about a witness’ testimony.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________
00-50296 Summary Calendar __________________
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHNNY ALBERT MARTINEZ, also known as Red Rider,
Defendant-Appellant.
______________________________________________
Appeal from the United States District Court for the Western District of Texas (W-99-CV-264 & W-95-CR-7-11) ______________________________________________ September 21, 2001
Before SMITH, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Johnny Albert Martinez, together with numerous codefendants,
was charged with conspiracy to possess marijuana with intent to
distribute and with possession of marijuana with intent to
distribute. A jury found Martinez guilty of the conspiracy charge
and not guilty of the substantive offense. The district court
sentenced Martinez to a term of 151 months of imprisonment and a
* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. five-year term of supervised release. This Court affirmed his
conviction on direct appeal. See United States v. Cortinas, 142
F.3d 242 (5th Cir. 1998).
Subsequently, Martinez filed a motion to vacate his sentence
under 28 U.S.C. § 2255 in the district court. After the government
had responded, Martinez filed a reply brief in which he raised for
the first time the claim of denial of counsel at a critical stage
of the proceedings. The district court denied relief without
addressing the newly argued claim.
Martinez filed a notice of appeal and application for a
certificate of appealability (COA). The district court denied a
COA. Martinez subsequently requested a COA of this Court.
Ultimately, we granted a COA on the following issues: (1) whether
the district court erred in failing to address Martinez’s reply
brief as an implicit motion for leave to amend his § 2255 motion;
(2) whether Martinez is procedurally barred from raising his claim
that counsel was absent at a critical stage because he had not
raised the issue on direct appeal; and (3) whether Martinez has set
forth a valid claim of denial of counsel.
ANALYSIS
Martinez claims that because his counsel was not present when
the district court responded to a note from the jury, he was denied
the assistance of counsel at a critical stage, and thus prejudice
2 should be presumed.1 Relief under § 2255 is reserved for
transgressions of constitutional rights and for a narrow range of
injuries that could not have been raised on direct appeal and which
would, if condoned, result in a complete miscarriage of justice.
United States v. Vaughn, 955 F.2d 367, 368 (5th Cir. 1992). In
reviewing the district court’s denial of relief, this Court
examines the factual findings for clear error and conclusions of
law de novo. United States v. Faubion, 19 F.3d 226, 228 (5th Cir.
1994).
Martinez’s convictions are related to a drug-smuggling
organization headed by Daniel Nieto. During its deliberations, the
jury requested a copy of the transcript of Nieto’s testimony. The
district court noted that although the attorneys had been
instructed to provide a telephone number, the court was unable to
contact three attorneys, including Martinez’s lawyer. Four
attorneys were present in the courtroom. After receiving no
objection from those attorneys, the district court advised the jury
that it could provide a transcript only if needed to answer a very
specific question and that the jury should try to frame a question
“as carefully as you can.” The court also informed the jury that
1 Martinez asserts that the district court erred in denying his implicit motion to amend his complaint with the issue of denial of counsel. Additionally, the government argues that this claim is procedurally barred. Because we conclude that Martinez’s denial of counsel claim fails on the merits, we do not reach the arguments with respect to amending the complaint and procedural bar.
3 it would probably take several hours for the testimony to be
transcribed. The jury apparently made no further requests.
Citing United States v. Cronic, 466 U.S. 656, 104 S.Ct. 2039
(1984), Martinez asserts that because he was denied counsel during
a critical stage, he is entitled to relief without a showing of
prejudice. Recently, we have explained “that the Sixth Amendment
principle animating Cronic's presumption of prejudice is the
fundamental idea that a defendant must have the actual assistance
of counsel at every critical stage of a criminal proceeding for the
court's reliance on the fairness of that proceeding to be
justified.” Burdine v. Johnson, 2001 WL 914267, *9 (5th Cir. Aug.
13, 2001) (en banc). Although Cronic did not provide much guidance
with respect to what parts of a trial are "critical," this Court
had gleaned the following criteria:
First, there must be a denial of such significance that it makes the adversary process itself unreliable. [citation omitted]. Second, the Cronic court makes clear that "only when surrounding circumstances justify a presumption of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into counsel's actual performance at trial."
United States v. Russell, 205 F.3d 768, 772 (5th Cir. 2000)
(quoting Cronic, 466 U.S. at 659, 662, 104 S.Ct. at 2047, 2048).
We are wholly unpersuaded that counsel’s absence under the
above-described circumstances either constituted a denial of such
significance that it made the adversary process itself unreliable
4 or that the surrounding circumstances justify a presumption of
ineffectiveness without examining counsel’s actual performance.
No evidence was introduced to the jury. Cf. Burdine, 2001 WL
914267, *9 (holding that counsel’s repeated unconsciousness through
not insubstantial portions of the critical guilt-innocence phase
while evidence was being introduced against petitioner warranted a
presumption of prejudice); United States v. Russell, 205 F.3d 768,
772 (5th Cir. 2000) (finding a critical stage based on counsel’s
two-day absence during which the government presented evidence that
“inferentially increased the taint of guilt” of the defendant).
Further, we discern no other circumstance surrounding counsel’s
brief absence that would render the adversary process unreliable.
Indeed, the record reveals precisely what occurred during the
brief, finite time counsel was absent. The jury’s note provided as
follows: “Could we have a copy of the transcript of Daniel Nieto’s
testimony?” After inquiring whether any of the attorneys present
had an objection, the district court instructed the jury:
Ladies and Gentlemen: We are only able to supply a transcript of testimony if it is necessary to assist you in answering a very specific question about a witness’ testimony. If you have such a question, please frame it as carefully as you can. Also, you should be aware that it will in all likelihood take several hours for the Court Reporter to locate the testimony and transcribe it.
In sum, the jury asked to see some evidence, the court
instructed them under what circumstances such evidence would be
5 available, and the jury never made any further attempt to obtain
the evidence. Unlike other situations in which the Supreme Court
has found no prejudice need be shown,2 the circumstances in the
case at bar are not “so likely to prejudice the accused that the
cost of litigating their effect . . . is unjustified.” Cronic, 466
U.S. at 658, 104 S.Ct. at 2046. Accordingly, Martinez has failed
to show that his case falls “within that narrow spectrum of cases
described in Cronic.” Craker v. McCotter, 805 F.2d 538, 542 (5th
Cir. 1986).3
For the above reasons, the district court’s judgment is
AFFIRMED.
2 Cf. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55 (1932) (appointment of unprepared counsel on day of trial to represent defendants charged with atrocious crime); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330 (1976) (court order preventing defendant from consulting his attorney during a 17-hour overnight trial recess between defendant’s direct and cross-examination); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550 (1975) (statute granting judge in a nonjury criminal trial the power to deny counsel the opportunity to deliver a summation).
3 In United States v. Brooks, 786 F.2d 638 (5th Cir. 1986), the appellant argued that the district court erred in responding to a jury’s request for evidence when he and his counsel were absent. It appears this complaint was not based on a denial of counsel under Cronic, but rather a violation of Rule 43 of the Federal Rules of Criminal Procedure, which requires the presence of the defendant “at every stage of the trial.” We found the error harmless because the following requirements had been met: (1) the judge had been distinctly responsive to the inquiry; (2) the response had clearly stated the law; and (3) the defendant had not shown any prejudice. Brooks, 786 F.2d at 643 (citing united States v. Breedlove, 576 F.2d 57, 60 (5th Cir. 1978)).