Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-20941
______________________
JOHN MAYO,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________________________
March 28, 2002
Before JONES, SMITH, and DeMOSS, Circuit Judges.
EDITH H. JONES, Circuit Judge:
This court granted a certificate of appealability to
permit John Mayo's appeal from a denial of § 2254 habeas relief on
the claim that he was constructively deprived of legal counsel at
a critical stage of his prosecution, the period during which a new
trial could be sought. Texas courts denied relief on this claim,
as did the federal district court. The issue before us, pursuant
to AEDPA standards, is whether the state courts' decision "was

contrary to, or involved an unreasonable application of, clearly
established Federal Law, as determined by the Supreme Court of the
United States . . .," or was based on an unreasonable determination
of the facts in light of the state court record. 28 U.S.C.
§ 2254(d). Mayo rests his claim entirely on United States v.
Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1984), and its progeny.
Finding no basis to grant relief on these facts under Cronic, we
affirm.
BACKGROUND
Mayo kidnapped, raped and sexually assaulted a Houston,
Texas, woman in May 1989. He was convicted in March 1991 of
aggravated kidnaping and aggravated sexual assault, and he received
sentences of 20 and 50 years' imprisonment, respectively, for those
offenses.
The facts pertinent to this case, which we paraphrase,
are succinctly reported by the state habeas court:1
Jacquelyn Barnes, a veniremember for Mayo's trial,
represented on her juror questionnaire that she had never been
accused in a criminal case. Before the veniremembers were brought
to the courtroom, the presiding judge in the central jury room
asked whether they had ever been convicted of any felony or theft.
1
The state court held a hearing on July 24, 1997, and prepared its
findings of fact and conclusions of law based on testimony and documentary
evidence.
2

Barnes either responded in the negative or remained silent;
otherwise, she would not have accompanied the panel to the
courtroom.
Mayo was represented at trial by retained counsel Paul
Mewis, assisted by Cynthia Henley. Neither the prosecutor nor
defense counsel asked the veniremembers whether they had been
convicted of any felony or theft, in reliance on the answers in the
jury questionnaires and their knowledge that the veniremembers had
already been qualified on this question in the central jury room.
Barnes became a juror.
Unbeknownst to the parties and attorneys, Barnes had a
final conviction for misdemeanor theft dating from 1977, which was
discoverable as a public record in Harris County, Texas. Had
Barnes disclosed her conviction during voir dire examination, the
attorneys would have challenged her for cause, as she was
absolutely disqualified from jury service under Texas law. TEX.
CODE CRIM. PROC. ANN. art. 35.19 (1989); Frame v. State, 615 S.W. 2d
766, 769 (Tex. Crim. App. 1981).
Mayo was convicted and sentenced. Mewis's contract
provided that his legal representation of Mayo would terminate with
the jury's verdict. After sentencing, Mayo indicated his desire to
appeal. Because Mewis did not handle appeals, he advised Mayo to
hire another lawyer.
3

Mewis took no further action in the case because he
assumed that Mayo would hire another lawyer. Neither Mewis nor
Henley (as Mewis's assistant) investigated jury misconduct, checked
the local criminal records of the jurors, or investigated or filed
a motion for new trial.
Mewis did not move to withdraw as counsel because he was
unaware that Texas law required him to continue to represent Mayo
following conviction until such time as the court permitted him to
withdraw or substituted counsel. Ex parte Axel, 757 S.W.2d 369,
373-74 (Tex. Crim. App. 1988).
Nevertheless, when Mewis had not heard from a prospective
appellate lawyer after about three weeks, he met with Mayo in jail
to determine whether another lawyer had been hired. Mayo said he
was indigent. On April 4, 1991, three days before the time expired
to file a motion for new trial and notice of appeal, Mewis assured
that Mayo was brought to court, that he filed a notice of appeal,
and that he signed an indigency affidavit requesting court-
appointed appellate counsel. That same day, the court appointed
Will Gray as appellate counsel and mailed him notice of the
appointment. Gray did not, however, learn of his appointment until
the time had expired to file a motion for new trial.
No attorney discovered Barnes's theft conviction in time
to file a motion for new trial or to raise the issue on appeal.
Had counsel filed a motion for new trial and proven that Barnes was
4

absolutely disqualified from serving as a juror, the trial court
would have had to grant a new trial, or the conviction would have
been reversed on appeal. Thomas v. State, 796 S.W.2d 196, 197
(Tex. Crim. App. 1990); State v. Holloway, 886 S.W.2d 482, 484
(Tex. App.--Houston [1st Dist.] 1994). Under Texas law, however,
Mayo is not entitled to obtain habeas corpus relief on a claim
involving a disqualified juror. Thomas, 796 S.W.2d at 199; Ex parte
Bronson, 254 S.W.2d 117, 121 (Tex. Crim. App. 1952)
The state habeas court concluded that Mayo "was not
denied assistance of counsel during the time for filing a motion
for new trial, as Paul Mewis remained attorney of record." The
Texas Court of Criminal Appeals denied Mayo's application for
habeas corpus relief without written order on the findings of the
trial court. The federal district court denied relief under §
2254, and this appeal followed after a COA was granted.
DISCUSSION
This case turns on whether the state courts' conclusion
that Mayo was not denied the assistance of counsel during the
period for filing a new trial motion was an unreasonable
application of Federal law, as established by the Supreme Court, or
was based on an unreasonable determination of the facts in light of
the evidence presented. 28 U.S.C. § 2254(d).
Mayo's argument begins with the proposition that criminal
defendants are constitutionally entitled to effective assistance of
5

counsel at every "critical stage" of prosecution and through the
conclusion of direct appeal. Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 2064 (1984); Evitts v. Lucey, 469 U.S.
387, 396, 105 S.Ct. 830, 836 (1985). A defendant whose attorney
provides no meaningful assistance may, however, be constructively
denied the assistance of counsel. United States v. Cronic, 466
U.S. 648, 659, 104 S.Ct. 2039, 2047 (1984). In Mayo's view, his
lawyer's failure to research or file a motion for new trial was the
equivalent of denying him counsel for the purpose of challenging
Ms. Barnes's qualifications as a juror.
The initial problem with this argument is that, from the
standpoint of AEDPA, its conclusion does not necessarily follow
from its premises. Few precedents exist explaining whether the
period for filing a motion for new trial is a "critical stage" of
prosecution to which the right to counsel attaches. The Texas
Court of Criminal Appeals, for instance, expressly withheld ruling
on that issue, although lower Texas courts have described the post-
trial period as "critical." Compare Prudhomme v. State, 28 S.W.3d
114, 121 (Tex. App. -- Texarkana 2000), with Smith v. State, 17
S.W.3d 660, 663 n.3 (Tex. Crim. App. 2000), and Oldham v. State,
977 S.W.2d 354, 360-61 (Tex. Crim. App. 1998). Several federal
courts of appeals have held that there is no constitutional right
to counsel for post-appeal motions for new trial. United States v.
Tajeddini, 945 F.2d 458, 470 (1st Cir. 1991), abrogated on other
6

grounds by Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029
(2000); United States v. Lee, 513 F.2d 423, 424 (D.C. Cir. 1975);
United States v. Birrell, 482 F.2d 890, 892 (2d Cir. 1973). But
three federal courts of appeals have held, on particular facts,
that the motion for new trial phase is a critical stage of the
prosecution. Kitchen v. United States, 227 F.3d 1014, 1018-19 (7th
Cir. 2000); Robinson v. Norris, 60 F.3d 457, 459-60 (8th Cir.
1995); Menefield v. Borg, 881 F.2d 696, 699 (9th Cir. 1989). The
district court here seized on the absence of "clearly established
Federal law, as determined by the Supreme Court . . . .," and
concluded that the period for filing a motion for new trial is not
clearly a critical phase; hence, the state courts did not
unreasonably reject Mayo's habeas claim.2
Unfortunately for Mayo, his position succeeds only if the
right to counsel clearly and fully attaches to the post-trial, pre-
appeal phase of prosecution. But it is unnecessary, in resolving
this appeal, to render such a broad decision.3 Instead, we focus
2
Mayo proceeded in state court and in this court solely on the theory
that he was denied counsel pursuant to Cronic and not, under Strickland, that his
attorney was constitutionally ineffective.
3
The broad question has no clearcut practical answer. Having counsel
during the motion for new trial phase may or may not be necessary to preserving
the defendant's rights to a fair trial and effective appeal. Investigating juror
misconduct, for instance, may be, but is not necessarily, feasible only after the
jury has been discharged. Another type of post-trial motion may challenge the
effectiveness of trial counsel, but such a claim may better be raised in a habeas
corpus petition, after the results of the alleged errors have been ascertained
on appeal. Other types of claims may justify the discretionary grant of a new
trial but need not be raised in that fashion in order to preserve them for
appeal. Hence, unlike phases of the prosecution during which attorney
7

on the state court finding that Mayo was not denied counsel during
the post-trial phase. This finding is not legally or factually
unreasonable. Under Texas law, Mewis was bound to represent Mayo
until the trial court permitted him to withdraw or appointed a new
attorney.4 That Mewis was unaware of his legal responsibility does
representation has been deemed "critical" by the Supreme Court -- arraignment;
gaps in trial that afford the opportunities for consultation with the defendant;
the introduction of evidence pertinent to the defendant; direct appeal -- the
post-trial, pre-appeal phase seems, in the absence of a specific claim, to
demand representation by counsel at a minimum only for filing a timely notice of
appeal. (Mewis fulfilled his responsibility to Mayo for this purpose.)
Accordingly, to grant Mayo's petition would extend the Supreme
Court's decision in Cronic. The Court explained in Cronic that a criminal
defendant, even though formally represented by counsel, may suffer an actual or
constructive denial of representation in three circumstances: where counsel is
totally absent or is prevented from assisting the accused during a critical
stage; where counsel has a conflict of interest; and where counsel entirely fails
to subject the prosecution's case to meaningful adversarial testing. The
circumstances of denial must justify a presumption of prejudice. Cronic, 466
U.S. at 659, 104 S.Ct. at 2046. In Burdine, this court held that when defense
counsel slept for "not insubstantial periods of time" during the guilt phase of
the capital murder trial, the defendant was constructively denied counsel.
Burdine v. Johnson, 262 F.3d 336, 341 (5th Cir. 2001) (en banc). Nothing in the
majority opinion in Burdine speaks to a Sixth Amendment claim arising in the
post-trial, pre-appeal phase of a non-capital prosecution. Further, as has been
shown, a priori judgment about the necessity of counsel during that phase is
impossible. Under the terms of Cronic or Burdine, then, Mayo's broad claim fails
for lack of a demonstration that prejudice is so likely to occur if counsel is
"absent" during this phase as to render individual consideration of claims
unnecessary. Since Cronic as presently understood does not support a holding
that the right to counsel inevitably continues during the post-trial phase of
prosecution, the Teague doctrine would pose a bar to its extension here. Teague
v. Lane, 489 U.S. 288, 109 S.Ct. 1060 (1989). Even in Burdine, the court,
conscious of Teague, went out of its way both to explain that it articulated no
"new rule" and to limit the decision to its specific facts. Burdine, 262 F.3d
at 349. Burdine offers no hope that other habeas defendants may succeed in
obtaining case-specific relief under Cronic or Teague.
4
Mayo's argument proves too much by conflating the attorney's alleged
error or misjudgment with "denial" or "absence" of counsel under Cronic. Cronic
went out of its way to stress that "only when circumstances justify a presumption
of ineffectiveness can a Sixth Amendment claim be sufficient without inquiry into
counsel's performance at trial." Cronic, 466 U.S. at 662, 104 S.Ct. at 2048.
The alleged error here was not so temporally tied to the post-trial, pre-appeal
phase as to justify a presumption of ineffectiveness at that stage. Cases relied
on by Mayo are thus not on point because the denial of counsel and attorney
incompetence on appeal, respectively, in those cases inevitably undermined the
8

not transform an error into the "denial" or "absence" of counsel.
Mewis in fact represented his client post-trial by taking steps to
ensure the appointment of appellate counsel.
The only asserted flaw in Mewis's legal representation
was his failure to investigate the criminal records of Mayo's jury,
to unearth a thirteen-year-old misdemeanor conviction of one juror,
and to use that technicality to obtain a mistrial or new trial.
For two reasons, this omission has no constitutional significance.
First, even if Mewis should have investigated the jurors'
criminal histories, the investigation need not have awaited the
outcome of trial. Mewis could have questioned the jurors on the
subject during voir dire exam. Indeed, the voir dire examination
provided
the
best
opportunity
to
reveal
disqualifying
characteristics. Moreover, Mewis, armed with copies of the juror
questionnaires, could have begun an investigation of the seated
jurors by means of outside sources as soon as trial commenced.
While the deadline for filing a motion for new trial fixes a
completion date under Texas procedure for such an investigation, it
does not constrain the initiation of inquiries into jurors'
criminal records. There is no necessary connection between Mewis's
alleged oversight and the post-trial period. This lack of
defendant's right to a first appeal. See Blankenship v. Johnson, 118 F.3d 312
(5th Cir. 1997); Lombard v. Lynaugh, 868 F.2d 1475 (5th Cir. 1989).
9

connection is irreconcilable with any Cronic claim regarding that
period.
Second, the facts demonstrate why Mayo declines to
characterize his claim as resting on the Strickland test for
constitutionally deficient legal representation. A Strickland
claim arises only if the attorney's error falls outside the bounds
of professional reasonableness. Strickland, 466 U.S. at 688, 104
S.Ct. at 2065. Mewis did not question prospective jurors about
their criminal histories because he relied on pre-qualification for
that precise point. Pre-qualification took place by means of
written questionnaires and inquiries by the judge who conducts
juror screening in the Houston courts' central jury room. It was
not professionally unreasonable to rely on this dual screening
mechanism. Surely the best evidence of the reasonableness of
Mewis's conduct lies in the fact that the prosecutor, who had as
much to lose as Mayo had to gain from the belated identification of
an unqualified juror, also relied on the pre-screening techniques.
If Mewis's actions in failing to ask veniremembers about possible
criminal records were not professionally unreasonable, it follows
that the failure to conduct post-trial investigation and file a
motion for new trial cannot have been deficient.5
5
That Mayo's conduct did not violate Strickland reinforces the
conclusion that no basis for a presumption of prejudice the prerequisite of a
denial of counsel under Cronic exists here.
10

Our conclusion may be stated narrowly. Whether or not
the right to counsel attaches for some purposes during the post-
trial, pre-appeal phase of the prosecution, Mayo was not
constructively denied the assistance of counsel for purposes of
filing a new trial motion solely to assert the disqualification of
a juror, where (a) the disqualification might have been discovered
earlier, and (b) Mayo's attorney could reasonably rely on Harris
County's juror pre-screening procedures. The state courts did not
unreasonably apply clearly established Federal law or reach
unreasonable findings of fact in denying Mayo relief from his
conviction.6
The judgment of the district court is AFFIRMED.
6
The dissent finds unreasonable the state's conclusion that Mayo was
represented by counsel during the post-trial, pre-appeal phase. The dissent
bases its view on attorney Mewis's affidavit revealing his ignorance of the
requirements of Texas law. Under the dissent's alchemy, it is hard to see how
the line between Cronic and Strickland errors could be drawn, with the result
that petitioners' heavy burdens of proving Strickland deficiency and prejudice
would be lightened to the Cronic standard of "absence" and presumed prejudice.
Were the dissent's position correct, the magnitude of Mayo's windfall here would
be striking, since Mewis's conduct, which did not rise to the level of deficient
representation under Strickland, would transmute into a habeas-demanding Cronic
error.
11

DeMOSS, Circuit Judge, dissenting:
The majority concludes, as did the state habeas court, that
John Mayo was not deprived of the assistance of counsel during the
post-trial, pre-appeal time for filing a motion for new trial,
despite the existence of affidavits from his attorneys attesting
that they in fact did not represent Mayo during this period.
Because I believe this conclusion to be unreasonable in light of
the evidence presented in the State habeas proceeding, I
respectfully dissent. Further, because I conclude that the post-
trial, pre-appeal time for filing a motion for new trial is a
"critical stage" in the proceedings, I would grant Mayo's request
for habeas relief.
I.
ASSISTANCE OF COUNSEL
The majority concludes that the state habeas court's finding
that Mayo was not denied counsel during the post-trial, pre-appeal
time for filing a motion for new trial was "not legally or
factually unreasonable."7 It reasons:
7 The state habeas court's entire analysis consisted of one
sentence: "The applicant was not denied assistance of counsel
during the time for filing a motion for new trial, as Paul Mewis
remained attorney of record."

Under Texas law, Mewis was bound to represent Mayo
until the trial court permitted him to withdraw or
appointed a new attorney. That Mewis was unaware
of his legal responsibility does not transform an
error into the "denial" or "absence" of counsel.
Mewis in fact represented his client post-trial by
taking steps to ensure the appointment of appellate
counsel.
I have no quarrel with the majority's recognition that, as a
matter of Texas law, trial counsel remains under a duty to continue
representing his or her client until the court permits a
withdrawal.8 I am also cognizant that, under Texas law, "[w]hen a
motion for new trial is not filed in a case, the rebuttable
presumption is that it was considered by the appellant and
rejected," and that the appellant carries the burden to "rebut the
presumption that the appellant was represented by counsel." Oldham
v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).
However, "being under a duty to represent" and actually
performing that duty are horses of a different color. Contrary to
8 This principle has been long recognized by the Texas Court
of Criminal Appeals, e.g., Harrison v. State, 516 S.W.2d 192, 192
(Tex. Crim. App. 1974), and is now codified in the Texas Code of
Criminal Procedure. See. TEX. CODE CRIM. PROC. art. 26.04(j)(2).
13

the majority's view, I believe it indisputable in this case that
Mayo did rebut the presumption that he was represented by counsel
during the time for filing a motion for new trial. Mayo presented
two affidavits in support of his claim--one from Mewis, his trial
attorney, and one from Gray, his appointed appellate attorney.
Mewis's affidavit stated:
On March 8, 1991, after Mr. Mayo was
sentenced, he said that he wanted to appeal.
Because I do not handle appeals, I told him to hire
another lawyer. I assumed that he would do so. I
took no further action on his case.
When I had not heard from another lawyer after
about three weeks, I went to see Mr. Mayo in jail
to determine whether he had hired counsel for the
appeal. He said that he could not afford to do so.
On April 4, 1991, three days before the time
expired to file a motion for new trial and notice
of appeal, I had Mr. Mayo brought to court. I
filed a notice of appeal and had him sign an
affidavit of indigency requesting the appointment
of counsel on appeal. The court appointed Will
Gray.
After Mr. Mayo was sentenced, I did not
provide him with additional legal assistance
because I did not intend to represent him on
appeal. For all practical purposes, he did not
have the assistance of counsel from the time that
he was sentenced until Mr. Gray learned of the
court appointment. As a result, no lawyer
investigated the possible grounds for a motion for
new trial.
Gray's affidavit stated:
The coordinator of the 263rd District Court
customarily forwarded me a copy of the combination
order appointing counsel and pauper's oath by
14

United States Mail. . . . If the order were mailed
on April 4, 1991, the earliest I could have
received it would have been April 6, 1991.
I was not able to speak with the Appellant or
file a motion for new trial by April 7, 1991.
In my view, these affidavits effectively rebut the presumption
that Mayo was represented by counsel during the time period for
filing a motion for new trial.9 Mayo claims he was without
representation; both Mayo's attorneys have sworn under oath that
Mayo was without representation; and no motion for new trial was
actually filed. I cannot conceive what more conclusive proof we
could require Mayo to present to demonstrate he was in fact without
representation.
In Ward v. State, the Texas Court of Criminal Appeals
emphasized that the "continuity of representation from trial to
appeal is necessary to correct the ambiguity of representation
which all too often follows a conviction." 740 S.W.2d 794, 797
(Tex. Crim. App. 1987). As the court explained, this is the
precise reason for the rule requiring counsel to formally withdraw
9 This evidence distinguishes this case from those where the
Texas Court of Criminal Appeals has rejected similar claims. See
Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000) ("We
therefore assume, absent a showing in the record to the contrary,
that appellant was adequately counseled regarding his right to file
a motion for new trial.") (emphasis added); Oldham, 977 S.W.2d at
363 ("There is nothing in the record to suggest that the attorney
did not discuss the merits of a motion for a new trial with the
appellant, which the appellant rejected.").
15

from representation. Id. & n.6. By failing to preform his
statutory duty to formally withdraw from representing Mayo, Mewis
subjected Mayo to this "ambiguity of representation," leaving Mayo
without an attorney to counsel him or investigate grounds for
filing a motion for new trial, and depriving the trial court of
notice that it was necessary to appoint new counsel.
Because both Mayo's attorneys disclaim representing him during
the post-trial, pre-appeal period for filing a motion for new
trial, and because, in fact, no motion for new trial was filed, I
would hold that Mayo has demonstrated that he was without
representation during that period. The state habeas court's
conclusion that Mayo was represented is "an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding." 28 U.S.C. § 2254(d)(2). Because the
majority holds otherwise, I respectfully dissent.
II.
CRITICAL STAGE
As the majority notes, before prejudice in this case can be
presumed, Mayo must also show that the period he was without
counsel was a "critical stage" of the proceedings. United States
v. Cronic, 466 U.S. 648, 659 (1984). The state habeas courts did
not consider this issue. The panel majority likewise declined to
reach this issue because its conclusion that Mayo had
16

representation is dispositive of Mayo's appeal. Nonetheless, the
majority opines, in dicta, that the time period for filing a motion
for new trial is not a critical period under Cronic. I disagree.
It is well settled that a defendant is constitutionally
entitled to the assistance of counsel at every critical stage of
the proceedings. E.g., id.; Michigan v. Jackson, 475 U.S. 625,
629-30 (1986); United States v. Wade, 388 U.S. 218, 224-25 (1967);
White v. Maryland, 373 U.S. 59, 60 (1963). Under the test
articulated by the Supreme Court, whether a particular time period
is a critical stage turns on an assessment of whether, at the time
in question, "the accused required aid in coping with legal
problems or assistance in meeting his adversary." United State v.
Ash, 413 U.S. 300, 313 (1973). Stated another way, critical stages
of the prosecution include all parts of the prosecution implicating
substantial rights of the accused. Mempa v. Rhay, 389 U.S. 128,
134 (1967).
While the Supreme Court has not considered precisely this
issue, every federal circuit court to address the question has
concluded that the post-trial, pre-appeal time period for filing
a motion for new trial is a critical stage.10 See, e.g., Kitchen
10 As the majority notes, several federal courts have held
that there is no constitutional right to counsel for post-appeal
motions for new trial that are merely collateral attacks. See,
e.g., United States v. Tajeddini, 945 F.2d 458, 470 (1st Cir.
17

v. United States, 227 F.3d 1014, 1019 (7th Cir. 2000); Williams v.
Turpin, 87 F.3d 1204, 1210 n.5 (11th Cir. 1996); Robinson v.
Norris, 60 F.3d 457, 460 (8th Cir. 1995); Menefield v. Borg, 881
F.2d 696, 699 (9th Cir. 1989). And at least two other circuit
courts, without expressly mentioning motions for new trial, have
held that "the hiatus between the termination of trial and the
beginning of an appeal" is a critical stage. Baker v. Kaiser, 929
F.2d 1495,1499 (10th Cir. 1991); Nelson v. Peyton, 415 F.2d 1154,
1157 (4th Cir. 1969).
Each of these circuits looked to the effect of a motion for
new trial in the particular state at issue. Relying on principles
articulated by the Supreme Court, each court ultimately concluded
that this time period, under the relevant state law, qualified as
a critical stage. Thus, while I find these cases instructive, I
recognize that the proper focus here is on whether a defendant's
substantive rights are affected during the post-trial, pre-appeal
time period for filing a motion for new trial under Texas law. See
Hamilton v. Alabama, 368 U.S. 52, 53 (1961).
In Texas, Rule 21 of the Texas Rules of Appellate Procedure
governs motions for new trial. Under this rule, a motion for new
1991), overruled in part on other grounds by Roe v. Flores-Ortega,
528 U.S. 470 (2000). However, it cites no cases, and I have found
none, holding that the post-trial, pre-appeal time period for
filing a motion for new trial is not a critical stage.
18

trial is a prerequisite to points raised on appeal "only when
necessary to adduce facts not in the record." TEX. R. APP. PROC. 21.
The Texas Court of Criminal Appeals has never squarely
addressed whether the time period for filing a post-trial, pre-
appeal motion for new trial is a critical stage. It has held that
a defendant is entitled to counsel at a hearing on a motion for new
trial. Trevino v. State, 565 S.W.2d 938, 940 (Tex. Crim. App.
1978). However, the two times it has been asked to consider
whether the time for filing a motion for new trial was a critical
stage, it has not reached the question. Instead, both times it
concluded, as a threshold matter, that the defendant had failed to
demonstrate that he or she was actually without counsel during this
period. Smith v. State, 17 S.W.3d 660, 663 (Tex. Crim. App. 2000)
("We hold that appellant has failed to overcome the presumption
that he was adequately represented by counsel during the time for
filing a motion for new trial."); Oldham, 977 S.W.2d at 361 ("[T]he
appellant has failed to show that she was denied counsel during the
time limit for filing a motion for new trial.").
Nonetheless, every Texas court of appeals to consider the
issue has concluded that, in Texas, the post-trial, pre-appeal time
for filing a motion for new trial is a "critical stage." See,
e.g., Prudhomme v. State, 28 S.W.3d 114, 119 (Tex. App.--Texarkana
2000, order); Massingill v. State, 8 S.W.3d 733, 736 (Tex.
19

App.--Austin 1999, no pet.); Hanson v. State, 11 S.W.3d 285, 288
(Tex. App.--Houston [14th Dist.] 1999, pet. ref'd); Burnett v,
State, 959 S.W.2d 652, 656 (Tex. App.--Houston [1st Dist.] 1997,
pet. ref'd). These courts all begin their analysis with the
recognition that whether a particular stage is critical turns on an
assessment of the usefulness of counsel to the accused at that
time. See Ash, 413 U.S. at 313; Upton v. State, 853 S.W.2d 548,
553 (Tex. Crim. App. 1993). And several of these courts thoroughly
explained their conclusion that, under Texas law, the time period
at issue in this case does affect the substantive rights of the
accused:
The importance of counsel to a defendant
immediately after conviction is recognized in both
case law and statute. As previously discussed, an
attorney's responsibilities to his client do not
end with conviction. . . .
A defendant "must comply with a myriad of
procedural rules in order to perfect a meaningful
appeal." While a motion for new trial is not a
prerequisite to appeal in every case, for a
meaningful appeal of some issues a defendant must
prepare, file, present, and obtain a hearing on a
proper motion for new trial in order to adduce
facts not otherwise shown by the record. It is no
more reasonable to require a defendant to perform
these tasks without the assistance of counsel than
it is to require him to represent himself at a new
trial hearing.

Massingill, 8 S.W.3d at 736 (citations omitted).
We find it to be indisputable that counsel can be
useful in coping with legal problems in preparing,
filing, presenting, and obtaining a hearing on a
20

proper motion for new trial, because the process of
preserving error with a motion for new trial is
governed by a myriad of rules and can be a rather
arduous task. . . . We also find it to be beyond
dispute that a motion for new trial can be an
extremely important tool for presenting an appeal.
A motion for new trial is generally not a
prerequisite to an appeal, but it can be
indispensable for a meaningful appeal of issues
which are reliant on facts outside the record.
. . . .
If a hearing on a motion for a new trial is a
critical stage [as held by the Texas Court of
Criminal Appeals in Trevino], then logic dictates
that the time period for filing the motion is also
a critical stage of the proceedings.
Prudhomme, 28 S.W.3d at 118-19 (citations and alterations omitted).
In sum, although the United States Supreme Court and the Texas
Court of Criminal Appeals have never considered this precise issue,
every federal circuit court and Texas state court to do so has
relied on settled Supreme Court precedent to hold this time period
is "critical." I am persuaded by the Texas courts of appeals'
reasoning that, even though a motion for new trial is not always a
prerequisite to an appeal in Texas, it undoubtedly can affect a
defendant's substantial rights. Accordingly, I would hold that the
post-trial, pre-appeal time period for filing a motion for new
trial is a critical stage of the proceedings during which a
defendant is constitutionally entitled to effective assistance of
counsel. Moreover, based on settled Supreme Court precedent,
because Mayo has shown he was denied the assistance of counsel
21

during a critical stage of his trial, he is relieved of the burden
to show specific prejudice. Cronic, 466 U.S. at 659 n.25 ("The
Court has uniformly found constitutional error without any showing
of prejudice when counsel was either totally absent, or prevented
from assisting the accused during a critical stage of the
proceedings."); Prejudice is presumed.11 Id.
Finally, I disagree with the majority's conclusion that
holding the post-trial, pre-appeal time period for filing a motion
for new trial to be a critical stage would represent an
impermissible extension of Cronic under Teague v. Lane. Stated
simply, Teague teaches us that a federal court reviewing a habeas
petition cannot apply a new constitutional rule of law in granting
relief to the defendant. 489 U.S. 288, 310 (1989). In Burdine v.
Johnson, we considered the scope of Cronic's rule that mandates a
presumption of prejudice when a defendant's counsel is absent
during a critical stage of the proceedings. 262 F.3d 336, 345 (5th
Cir. 2001). There our en banc Court stated that Cronic identified
the "fundamental idea" under the Sixth Amendment that a "defendant
must have the actual assistance of counsel at every critical stage
11 For this reason, the majority's discussion about the merits
of Mayo's motion for new trial should be irrelevant to our
analysis. Contrary to the majority's suggestion, a defendant is
not required to prove prejudice as a prerequisite to his or her
entitlement to a presumption of prejudice.
22

of a criminal proceeding for the court's reliance on the fairness
of that proceeding to be justified." Id.
Because I am convinced that the time period for filing a post-
trial, pre-appeal motion for new trial fits comfortably within
long-established Supreme Court precedent, I do not believe Mayo's
claim is Teague barred. This is true even though the Supreme Court
has never expressly designated this particular stage as critical.
See Williams v. Taylor, 529 U.S. 362, 382 (2000) ("[A]s our
precedent interpreting Teague has demonstrated, rules of law may be
sufficiently clear for habeas purposes even when they are expressed
in terms of a generalized standard rather than as a bright-line
rule.") (Stevens, J., concurring).
Teague teaches us that a rule is "new" only if it "breaks new
ground or imposes a new obligation on the States or the Federal
Government." Teague, 489 U.S. at 301. Here, the Supreme Court has
clearly articulated standards for this Court to use in determining
whether a stage is critical. Simply applying those standards does
not amount to application of a "new rule."

III. CONCLUSION
I would hold that the state courts' conclusion that Mayo was
represented by counsel during the time for filing a post-trial,
pre-appeal motion for new trial is unreasonable in light of the
23

evidence presented in the State court proceedings. Because the
majority holds otherwise, I respectfully dissent. Further, because
I believe that Mayo was without counsel during a critical stage of
the proceedings, I would reverse the district court's judgment and
remand to the state district court to permit Mayo to file an out-
of-time motion for new trial under the state laws existing at the
time of his conviction.
24