Steven Lee Moss v. Gary Miniard, Warden

The Sixth Amendment provides a criminal defendant with “the right to the effective assistance of counsel,” Buck v. Davis, 580 U.S. 100, 118 (2017) (citations omitted), not just the presence of a lawyer in the courtroom. Typically, claims of ineffective assistance are governed by Strickland v. Washington, 466 U.S. 668 (1984). Strickland requires a reviewing court to find both deficient performance by counsel and prejudice—that is, a reasonable probability that the result would have been different but for counsel’s errors—before it can find that the defendant was denied effective assistance of counsel. Id. at 694. Under United States v. Cronic, 466 U.S. 648, 658-60 (1984), however, prejudice to the defendant is presumed in rare circumstances. One of those circumstances is when the defendant suffers a complete denial of counsel—actual or constructive—at a critical phase of the proceedings. Id. at 659; Strickland, 466 U.S. at 692. Following its own precedent, the Sixth Circuit held below that when counsel is “physically present,” a defendant cannot suffer a complete denial of counsel under Cronic unless counsel’s ineffectiveness was caused by a state actor. The question presented is whether, when counsel is physically present, state action is required before a court may find a complete denial of counsel under Cronic.