304 F.

3d 1066

Richard Lee HUNTER, Petitioner-Appellee,

v.
Michael W. MOORE, Robert A. Butterworth, RespondentsAppellants.
No. 00-14576.

United States Court of Appeals, Eleventh Circuit.

September 4, 2002.

Edward C. Hill, Jr., Tallahassee, FL, for Respondents-Appellants.

Jeraldine Williams Smith, Law Office of Jeraldine Williams Smith, P.A.,
Tampa, FL, for Petitioner-Appellee.
Appeal from the United States District Court for the Northern District of
Florida.
Before BARKETT, HULL and KRAVITCH, Circuit Judges.
KRAVITCH, Circuit Judge:

This case presents the question whether a defendant has been denied counsel at
a critical stage of his trial when the judge announces a verdict immediately
after the close of evidence without offering any opportunity for a closing
argument. Because we hold that counsel does not waive closing argument in a
bench trial when the trial judge immediately announces his guilty decision on
the heels of the close of evidence and provides no opportunity for any objection
prior to the guilty verdict, we affirm the district court's grant of habeas corpus
under 28 U.S.C. 2254.

I. BACKGROUND
2

Richard Lee Hunter was in a parked car that had been stolen from an impound
lot when he was observed by two police officers. The officers pulled their
unmarked police vehicle directly behind the car Hunter was in, effectively
blocking it in. The officers, who were in plain clothes, approached the vehicle

and ordered Hunter to place his hands on the steering wheel. Hunter did not
cooperate, however, and rammed the vehicles that were in front and behind
him, in an effort either to escape or to injure the police officers. One police
officer was able to break the driver's side window and remove the keys from
the car. After initially resisting arrest, Hunter was handcuffed and removed
from the vehicle. One officer had been struck twice by the moving car. After
searching the car, police found cocaine and drug paraphernalia. Hunter was
arrested and charged with the counts of aggravated assault, battery on a law
enforcement officer, aggravated battery on a law enforcement officer,
possession of cocaine, possession of paraphernalia, reckless driving, and
resisting arrest with violence (2 counts).1
3

Hunter waived his right to a jury and proceeded to have a non-jury trial. At
trial, defense counsel's principal argument was that Hunter did not know that
the plainclothes officers were policemen, and that he was merely attempting to
flee from them. At the conclusion of the state's evidence, Hunter's counsel
moved for a judgment of acquittal, which was granted as to the aggravated
assault count. Hunter then put on a defense case, and the state called one
witness in rebuttal. After the prosecutor indicated he had no further rebuttal and
defense counsel stated he had no further questions, the trial judge began to
address Hunter, but was interrupted by the prosecutor who questioned whether
the defense had any surrebuttal. When defense counsel answered "no," the
court immediately stated: "Mr. Hunter, sir, based upon the testimony and the
evidence in this case, this Court finds you guilty...." The record is clear that the
court did not provide any opportunity for closing argument or even any
opportunity for counsel to object before the guilty verdict.2

Hunter appealed and the state appellate court affirmed the conviction per
curiam. Hunter v. State, 654 So.2d 1167 (Fla. 1st Dist. Ct.App.1995). Hunter
then filed a state habeas claim which was denied and affirmed by the state
appellate court without opinion. Hunter v. State, 704 So.2d 523 (Fla 1st Dist.
Ct.App.1997). Hunter filed this petition for federal habeas relief under 28
U.S.C. 2254, alleging, among other things, that he received ineffective
assistance of counsel because the state trial court denied his lawyer any
opportunity to make a closing argument and thereby denied Hunter the right to
counsel at a critical stage of the trial.3 The district court agreed and therefore
granted the writ of habeas corpus. The State of Florida appeals the district
court's decision.

II. DISCUSSION
5

Hunter's ineffective assistance of counsel claim presents a mixed question of

law and fact and is subject to de novo review. See Huynh v. King, 95 F.3d 1052,
1056 (11th Cir.1996). A federal habeas court reviewing a state court conviction
may issue a writ of habeas if the state court proceedings "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." 28 U.S.C. 2254(d)(1); Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843,
1850, 152 L.Ed.2d 914 (2002). A federal habeas court may issue the writ under
the "contrary to" clause if the state court either applies the wrong rule to the
facts of a case or decides the case differently than the Supreme Court has done
in a case with materially indistinguishable facts. Bell, 122 S.Ct. at 1850;
Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389
(2000).
6

Claims of ineffective assistance of counsel are usually analyzed under the

framework set out by the Supreme Court in Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a
petitioner claiming that his counsel was so defective as to warrant a reversal of
his conviction must demonstrate that counsel's "representation fell below an
objective standard of reasonableness" and that "there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the proceeding would
have been different." Id. at 688, 694, 104 S.Ct. 2052. The state court that
reviewed Hunter's state habeas petition under Florida Rule of Criminal
Procedure 3.850 used the Strickland framework and determined that Hunter had
not been prejudiced by the failure of his counsel to give a closing argument.

The Supreme Court set out an exception to the Strickland test, however, in
United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984),
which was decided on the same day. The Court in Cronic determined 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." Cronic, 466 U.S. at
658, 104 S.Ct. 2039. A petitioner whose case presents such a circumstance need
not make the specific showing of prejudice required by Strickland. Id. at 659,
104 S.Ct. 2039. An ineffective assistance claim should be analyzed under
Cronic, rather than Strickland, if the defendant either "is denied counsel at a
critical stage of his trial" or if "counsel entirely fails to subject the prosecution's
case to meaningful adversarial testing." Id.; see also Bell, 122 S.Ct. at 1851. In
this case, the district court granted the writ of habeas, concluding that the state
court should have applied Cronic, not Strickland. The district court deemed that
Cronic was the appropriate legal test because Hunter was denied counsel at a
critical stage in his trial when his lawyer was not afforded the opportunity to
make a closing argument.4

The Supreme Court in Cronic cited several examples of cases where a

defendant was denied counsel at a critical stage of his trial by government
action. See Cronic, 466 U.S. at 668 n. 25, 104 S.Ct. 2039 n. 25; see also Bell,
122 S.Ct. at 1851 n. 3 (citing the same cases cited in Cronic and stressing that "
[e]ach case involved criminal defendants who had actually or constructively
been denied counsel by government action."). One case cited by the Supreme
Court, Herring v. New York, 422 U.S. 853, 864-65, 95 S.Ct. 2550, 45 L.Ed.2d
593 (1975), held that the Sixth Amendment secures the right of a criminal
defendant to have his counsel present closing argument, even in a bench trial.
The Court in Herring stated that "the overwhelming weight of authority, in both
federal and state courts, holds that a total denial of the opportunity for final
argument in a nonjury criminal trial is a denial of the basic right of the accused
to make his defense." Id. at 859, 95 S.Ct. 2550. Based on the Supreme Court's
citation of Herring in the Cronic opinion, it is clear that closing argument is a
"critical stage" of a trial, and that a court's complete denial of an opportunity for
closing argument by defense counsel constitutes the denial of counsel at a
critical stage and warrants reversal without a specific showing of prejudice.

The state habeas court required Hunter to make a showing of specific prejudice,
apparently because it did not believe that closing argument constituted a
"critical stage" of trial when counsel had argued an earlier motion for judgment
of acquittal.5 The state court's decision, however, is contrary to the clearly
established Federal law set out in Herring. 6 See 422 U.S. at 864-65, 95 S.Ct.
2550. The citation to Herring in the Court's Cronic decision makes clear that
constitutional error exists without a showing of prejudice whenever a court
denies defense counsel the opportunity to present closing argument and thereby
denies the defendant his right to counsel at a critical stage of the trial. Cronic,
466 U.S. 648, 668 n. 25, 104 S.Ct. 2039 n. 25, 80 L.Ed.2d 657. The district
court therefore was correct to grant the habeas petition if Hunter's counsel was
denied an opportunity to make closing argument by government action.

10

The question of whether Hunter's counsel was denied an opportunity to make

closing argument by government action is more difficult in this case than in
Herring, where defense counsel requested closing argument, but the court
stated that it "[chose] not to hear summations." See Herring, 422 U.S. at 85354, 95 S.Ct. 2550. Here, Hunter's trial counsel never made a request for closing
argument; thus the trial judge neither granted nor denied such a request. A
petitioner claiming that he was denied counsel at a critical stage must show that
he was "actually or constructively... denied counsel by government action." 122
S.Ct. at 1851 n. 3. If Hunter's counsel had an opportunity to make a closing
argument, but waived the right to do so, it was a strategic choice that is subject
to Strickland's performance and prejudice prongs. See id. at 1852.

11

Waiver of a constitutional right will only be found if the record discloses its
"intentional relinquishment or abandonment." Johnson v. Zerbst, 304 U.S. 458,
464, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938). Although the Eleventh Circuit has
not addressed this exact issue, several other circuits have made determinations
as to what constituted the "intentional relinquishment or abandonment" of the
right to have counsel present closing argument. See Kearney v. United States,
708 A.2d 262, 265 (D.C.App.1998) (holding that counsel had waived closing
argument by remaining silent when the court asked "[a]ll righty?" after
announcing it would rule without argument); United States v. Stenzel, 49 F.3d
658, 661-62 (10th Cir.1995) (holding that counsel had waived closing argument
by interrupting the trial judge immediately before judgment to renew some
motions, but failing to request closing argument); United States v. Martinez,
974 F.2d 589, 590 (5th Cir.1992) (holding that counsel waived the right to
closing argument by remaining silent when the trial judge "informed counsel
that he was prepared to rule and that he did not consider arguments necessary");
United States v. Spears, 671 F.2d 991, 994 (7th Cir.1982) (holding that counsel
had waived closing argument by failing to make a request for closing argument
after a three week adjournment following the close of evidence, but noting that
there is no waiver "where the announcement of the verdict comes on the heels
of the close of evidence"); United States v. King, 650 F.2d 534, 536-37 (4th
Cir.1981) (holding that counsel had not waived closing argument by declining
to make an argument after the district court told him to "[g]o ahead if you want
to argue it. I have already made my finding. It's not going to change anything.");
United States v. Walls, 443 F.2d 1220, 1223 (6th Cir.1971) (holding that trial
court erred when, "[i]mmediately following the conclusion of the case for the
defense, the court stated his finding of guilt, and court was adjourned").

12

We agree with those circuits that have indicated that there is no waiver "where
the announcement of the verdict comes on the heels of the close of evidence."
Spears, 671 F.2d at 994. As the Fifth Circuit wrote, "a waiver will not be
implied where there is no meaningful opportunity to object to a lack of closing
argument." Martinez, 974 F.2d at 592. In this case, the trial court never
announced that it would not be hearing oral argument and immediately made a
finding of guilt at the close of evidence. In light of the attendant circumstances
in this case, Hunter's counsel never had a meaningful opportunity, in the trial
court, to object to the lack of closing argument, and Hunter thereby was denied
by government action his Sixth Amendment right to have his counsel present a
closing argument.

III. CONCLUSION
13

For the foregoing reasons, we AFFIRM the judgment of the district court.

Notes:
1

Hunter initially was not charged with reckless driving or aggravated assault,
and was charged with an additional count of battery on a law enforcement
officer. An amended information added the reckless driving charge and
amended one battery count to the aggravated assault count

More specifically, after the State's rebuttal witness testified, defense counsel
was asked if he had any surrebuttal witnesses. Defense counsel replied "no,"
and the court immediately found the defendant guilty, as follows:
MR. ZEITLIN: Do you have any surrebuttal?
MR. WILLIAMS: No.
THE COURT: Mr. Hunter, sir, based upon the testimony and the evidence in
this case, this Court finds you guilty ...
It is clear that the trial court had decided the case and announced its guilty
verdict before defense counsel had any opportunity whatsoever to object to lack
of a closing argument.

The special concurrence notes that Hunter failed to raise the issue in this case in
his direct state appeal and therefore the claim may not have been exhausted.
Although any discussion would normally be inappropriate, we address it briefly
because it was raised in the special concurrence
Because the procedural bar issue was neither presented to the district court nor
raised on appeal, it is waived. See Francis v. Dugger, 908 F.2d 696, 705 n. 2
(11th Cir.1990) (finding state's failure to assert procedural default defense in
district court constituted waiver); Harrison v. Jones, 880 F.2d 1279, 1282 (11th
Cir.1989) ("The state, however, did not raise this issue, and consequently has
waived its procedural bar.").
"Generally, claims of ineffective assistance of counsel are not considered for
the first time on direct appeal." United States v. Tyndale, 209 F.3d 1292, 1294
(11th Cir.2000). The fact that Hunter claims his lawyer was ineffective because
of government action, rather than the lawyer's own actions, does not cease to
make it an ineffective assistance of counsel claim. We also note that Hunter
filed a pro se state habeas petition claiming that his lawyer was ineffective for

failing to give closing argument. Although Hunter did not specify that he was
denied counsel at a critical stage, the state habeas petition appears to be
sufficient to defeat any procedural bar because habeas petitions filed by pro se
litigants are construed liberally. Aron v. United States, 291 F.3d 708, 715 (11th
Cir.2002). Furthermore, exhaustion under 2254 requires only that state
prisoners "give state courts a fair opportunity to act on their claims." O'Sullivan
v. Boerckel, 526 U.S. 838, 844, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999). This
requirement is met when the petitioner has "presented the substance of his
claim to the state courts." Vasquez v. Hillery, 474 U.S. 254, 258, 106 S.Ct. 617,
88 L.Ed.2d 598 (1986).
4

InBell v. Cone, the Supreme Court recently clarified that the standard is
extremely high for a petitioner asserting that his counsel entirely failed to
subject the prosecution's case to meaningful adversarial testing. 535 U.S. 685,
122 S.Ct. 1843, 1851, 152 L.Ed.2d 914 (2002) ("the attorney's failure must be
complete"). The Court in Bell did not appear to modify the analysis for a
petitioner claiming that he was denied counsel at a critical stage in his trial.

The state habeas court stated that:

Although counsel failed to make any arguement [sic] on behalf of Defendant at
the close of all the evidence, counsel moved for a judgment of acquittal at [sic]
to all counts at the close of the State's case, and argued for Defendant at that
time. Consequently, Defendant suffered no prejudice by counsel not doing so
again at the close of all evidence.
(footnote citation omitted).

Herring explained the importance of closing argument in the following:

It can hardly be questioned that closing argument serves to sharpen and clarify
the issues for resolution by the trier of fact in a criminal case. For it is only after
all the evidence is in that counsel for the parties are in a position to present
their respective versions of the case as a whole. Only then can they argue the
inferences to be drawn from all the testimony, and point out the weaknesses of
their adversaries' positions. And for the defense, closing argument is the last
clear chance to persuade the trier of fact that there may be reasonable doubt of
the defendant's guilt.
Herring v. New York, 422 U.S. 853, 862, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
The above quote succinctly illustrates why the arguments made by defense
counsel during the motion for judgment of acquittal were not an adequate

substitute for closing argument. At the time of the motion for judgment of
acquittal, the defense had not presented any evidence, so defense counsel was
incapable of presenting his "version[ ] of the case as a whole" and was unable
to use it as the "last clear chance to persuade the trier of fact." Defense counsel
also presented its arguments differently than it would have in a closing
argument because evidence must be judged in the light most favorable to the
prosecution in deciding a motion for judgment of acquittal.
HULL, Circuit Judge, concurring:
14

I concur in full in Judge Kravitch's opinion except for footnote 3. I write

separately to note that in his direct state appeal, Hunter's counsel filed an
Anders brief and did not raise any issue regarding the state trial court's denial of
any opportunity for closing argument and denial of counsel at a critical stage of
the criminal proceeding. I also question whether Hunter's state habeas petition
raises the issue which we decide today, i.e., whether he was denied counsel
altogether at a critical stage, as opposed to ineffective assistance of counsel.
Thus, there is, at a minimum, an argument that Hunter has failed to exhaust
these claims. However, the State has not argued failure to exhaust or procedural
default in the district court or on appeal, and, thus, we are not required to
address in this case whether Hunter's claims are procedurally barred in this
2254 action, and, if so, whether there exists the cause and prejudice required to
overcome a procedural bar. Indeed, as the majority opinion points out, the
issue, having been waived, is not presented for decision.