WRIGHT, SHERIFF, SHAWANO COUNTY, WISCONSIN v. VAN PATTEN

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120 OCTOBER TERM, 2007
Per Curiam
WRIGHT, SHERIFF, SHAWANO COUNTY, WISCONSIN
v. VAN PATTEN
on petition for writ of certiorari to the united
states court of appeals for the seventh circuit
No. 07–212. Decided January 7, 2008
Respondent Van Patten sought habeas relief under 28 U. S. C. § 2254, ar
guing that his Sixth Amendment right to counsel was violated because
his trial counsel, though linked to the courtroom by speakerphone, was
physically absent from his state plea hearing. The District Court de
nied relief, but the Seventh Circuit reversed, holding that the case’s
novel claim should be resolved under United States v. Cronic, 466 U. S.
648 (prejudice may be presumed), rather than Strickland v. Washing
ton, 466 U. S. 668 (requiring a showing of counsel’s deficient performance
and prejudice to defendant). This Court remanded in light of Carey v.
Musladin, 549 U. S. 70, and its explanation of § 2254’s “clearly estab
lished Federal law” requirement. The Seventh Circuit reaffirmed, hold
ing that this case, unlike Musladin, does not involve an open constitu
tional question since this Court has recognized a defendant’s right to
relief if his counsel was actually or constructively absent at a critical
stage of the proceeding.
Held: Because this Court’s precedents give no clear answer to the ques
tion presented in this case, it cannot be said that the state court unrea
sonably applied clearly established federal law, and therefore, § 2254
relief is unauthorized. Strickland’s two-pronged test typically applies
to ineffective-assistance-of-counsel claims, but Cronic held that test un
necessary when “circumstances [exist] that are so likely to prejudice
the accused that the cost of litigating their effect in a particular case
is unjustified,” 466 U. S., at 658, and found that one such circumstance
is counsel’s total absence during a critical stage of the proceeding.
However, no decision of this Court squarely addresses the issue in this
case, clearly establishes that Cronic should replace Strickland in this
novel factual context, or clearly holds that counsel’s participation by
speakerphone should be treated on par with total absence.
Certiorari granted; 489 F. 3d 827, reversed and remanded.
Per Curiam.
The Court of Appeals for the Seventh Circuit held that
respondent Joseph Van Patten was entitled to relief under

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Cite as: 552 U. S. 120 (2008) 121
Per Curiam
28 U. S. C. § 2254, reasoning that his lawyer’s assistance was
presumptively ineffective owing to his participation in a plea
hearing by speakerphone. Van Patten v. Deppisch, 434
F. 3d 1038 (2006). We granted certiorari, vacated the judg
ment, and remanded the case for further consideration in
light of Carey v. Musladin, 549 U. S. 70 (2006). On remand,
the Seventh Circuit adhered to its original decision, conclud
ing that “[n]othing in Musladin requires that our 2006 opin
ion be changed.” Van Patten v. Endicott, 489 F. 3d 827, 828
(2007) (per curiam). We grant the petition for certiorari
now before us and this time reverse the judgment of the
Seventh Circuit.
I
Van Patten was charged with first-degree intentional hom
icide and pleaded no contest to a reduced charge of first
degree reckless homicide. His counsel was not physically
present at the plea hearing but was linked to the courtroom
by speakerphone. After the state trial court imposed the
maximum term of 25 years in prison, Van Patten retained
different counsel and moved in the Wisconsin Court of Ap
peals to withdraw his no-contest plea. The thrust of the
motion was that Van Patten’s Sixth Amendment right to
counsel had been violated by his trial counsel’s physical ab
sence from the plea hearing. The Wisconsin Court of Ap
peals noted that, under state law, a postconviction motion to
withdraw a no-contest plea will be granted only if a defend
ant establishes “manifest injustice” by clear and convincing
evidence. See State v. Van Pattten, No. 96–3036–CR (May
28, 1997), App. to Pet. for Cert. A47–A48. While the court
acknowledged that “the violation of the defendant’s Sixth
Amendment right to counsel may constitute a manifest injus
tice,” id., at A48, it found that the absence of Van Patten’s
lawyer from the plea hearing did not violate his right to
counsel:
“The plea hearing transcript neither indicates any de
ficiency in the plea colloquy, nor suggests that Van Pat

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122 WRIGHT v. VAN PATTEN
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ten’s attorney’s participation by telephone interfered in
any way with [Van Patten’s] ability to communicate with
his attorney about his plea. Van Patten confirmed that
he had thoroughly discussed his case and plea decision
with his attorney and was satisfied with the legal repre
sentation he had received. The court gave Van Patten
the opportunity to speak privately with his attorney
over the phone if he had questions about the plea, but
Van Patten declined. Further, when Van Patten exer
cised his right to allocution at sentencing, in the per
sonal presence of his attorney, he raised no objection to
his plea.” Id., at A49–A50.
Applying Strickland v. Washington, 466 U. S. 668 (1984), the
court concluded that “[t]he record does not support, nor does
Van Patten’s appellate brief include, any argument that coun
sel’s performance was deficient or prejudicial,” No. 96–3036–
CR, App. to Pet. for Cert. A51, and denied Van Patten’s
motion.
After the Wisconsin Supreme Court declined further re
view, Van Patten petitioned for a writ of habeas corpus under
28 U. S. C. § 2254 in Federal District Court. The District
Court denied relief, but the Court of Appeals for the Seventh
Circuit reversed. It held that Van Patten’s Sixth Amend
ment claim should have been resolved, not under Strick
land’s two-pronged test (which requires a showing of defi
cient performance and prejudice to the defendant), but under
the standard discussed in United States v. Cronic, 466 U. S.
648 (1984) (under which prejudice may be presumed). Al
though the Seventh Circuit recognized that this case “pre
sents [a] novel . . . question,” Deppisch, 434 F. 3d, at 1040,
and conceded that “[u]nder Strickland, it seems clear [that]
Van Patten would have no viable claim,” id., at 1042, the
court concluded that “it is clear to us that Van Patten’s case
must be resolved under Cronic,” id., at 1043. The resolu
tion was in Van Patten’s favor.

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While the prison warden’s petition for certiorari was pend
ing, this Court decided Musladin, supra. Musladin had in
voked this Court’s cases recognizing “that certain courtroom
practices are so inherently prejudicial that they deprive the
defendant of a fair trial,” id., at 72. The issue was the sig
nificance of these precedents in a case under § 2254, which
bars relief on any claim “adjudicated on the merits” in state
court, unless the state court’s decision “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).
The prejudicial conduct involved in Musladin was court
room conduct of private actors. We held that the “inheren[t]
prejudic[e]” test, which we thus far have applied only in
cases involving government-sponsored conduct, see, e. g.,
Estelle v. Williams, 425 U. S. 501 (1976); Holbrook v. Flynn,
475 U. S. 560 (1986), did not clearly extend to the conduct of
independently acting courtroom spectators. See Musladin,
supra, at 76 (“[A]lthough the Court articulated the test for
inherent prejudice that applies to state conduct in Williams
and Flynn, we have never applied that test to spectators’
conduct. Indeed, part of the legal test of Williams and
Flynn—asking whether the practices furthered an essen
tial state interest—suggests that those cases apply only to
state-sponsored practices”). For that reason, we reversed
the Court of Appeals’ grant of habeas relief.
Musladin’s explanation of the “clearly established Federal
law” requirement prompted us to remand Van Patten’s case
to the Seventh Circuit for further consideration. A majority
of the panel reaffirmed its original judgment, however, on
the ground that “[u]nlike Musladin, this case does not con
cern an open constitutional question,” because “[t]he Su
preme Court has long recognized a defendant’s right to relief
if his defense counsel was actually or constructively absent
at a critical stage of the proceedings.” 489 F. 3d, at 828.

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124 WRIGHT v. VAN PATTEN
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Judge Coffey disagreed, observing that “the United States
Supreme Court has never held that an attorney is presumed
to be ineffective if he participates in a plea hearing by
speaker phone rather than by physical appearance.” Ibid.
(emphasis deleted). He found that “[t]he Majority Opinion
does not comport with Musladin,” ibid., and dissented from
“the court’s erroneous decision to allow” its original opinion
“to stand as written,” id., at 829. We reach the same
conclusion.
II
Strickland, supra, ordinarily applies to claims of ineffec
tive assistance of counsel at the plea hearing stage. See
Hill v. Lockhart, 474 U. S. 52, 58 (1985) (“[T]he two-part
Strickland v. Washington test applies to challenges to guilty
pleas based on ineffective assistance of counsel”). And it
was in a different context that Cronic “recognized a narrow
exception to Strickland’s holding that a defendant who as
serts ineffective assistance of counsel must demonstrate not
only that his attorney’s performance was deficient, but also
that the deficiency prejudiced the defense.” Florida v.
Nixon, 543 U. S. 175, 190 (2004) (discussing Cronic). Cronic
held that a Sixth Amendment violation may be found “with
out inquiring into counsel’s actual performance or requiring
the defendant to show the effect it had on the trial,” Bell
v. Cone, 535 U. S. 685, 695 (2002), when “circumstances
[exist] that are so likely to prejudice the accused that the
cost of litigating their effect in a particular case is unjusti
fied,” Cronic, supra, at 658. Cronic, not Strickland, applies
“when . . . the likelihood that any lawyer, even a fully compe
tent one, could provide effective assistance is so small that a
presumption of prejudice is appropriate without inquiry into
the actual conduct of the trial,” 466 U. S., at 659–660,* and
*Cronic also applies when “there [is] a breakdown in the adversarial
process,” 466 U. S., at 662, such that “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing,” id., at 659. We
have made clear that “[w]hen we spoke in Cronic of the possibility of

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one circumstance warranting the presumption is the “com
plete denial of counsel,” that is, when “counsel [is] either to
tally absent, or prevented from assisting the accused during
a critical stage of the proceeding,” id., at 659, and n. 25.
No decision of this Court, however, squarely addresses the
issue in this case, see Deppisch, 434 F. 3d, at 1040 (noting
that this case “presents [a] novel . . . question”), or clearly
establishes that Cronic should replace Strickland in this
novel factual context. Our precedents do not clearly hold
that counsel’s participation by speakerphone should be
treated as a “complete denial of counsel,” on par with total
absence. Even if we agree with Van Patten that a lawyer
physically present will tend to perform better than one on
the phone, it does not necessarily follow that mere telephone
contact amounted to total absence or “prevented [counsel]
from assisting the accused,” so as to entail application of
Cronic. The question is not whether counsel in those cir
cumstances will perform less well than he otherwise would,
but whether the circumstances are likely to result in such
poor performance that an inquiry into its effects would not
be worth the time. Cf. United States v. Gonzalez-Lopez, 548
U. S. 140, 147 (2006) (Sixth Amendment ensures “effective
(not mistake-free) representation” (emphasis in original)).
Our cases provide no categorical answer to this question, and
for that matter the several proceedings in this case hardly
point toward one. The Wisconsin Court of Appeals held
counsel’s performance by speakerphone to be constitution
ally effective; neither the Magistrate Judge, the District
Court, nor the Seventh Circuit disputed this conclusion; and
the Seventh Circuit itself stated that “[u]nder Strickland,
it seems clear Van Patten would have no viable claim,”
Deppisch, supra, at 1042.
presuming prejudice based on an attorney’s failure to test the prosecutor’s
case, we indicated that the attorney’s failure must be complete.” Bell v.
Cone, 535 U. S. 685, 696–697 (2002). It is undisputed that this standard
has not been met here.

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126 WRIGHT v. VAN PATTEN
Stevens, J., concurring in judgment
Because our cases give no clear answer to the question
presented, let alone one in Van Patten’s favor, “it cannot
be said that the state court ‘unreasonabl[y] appli[ed] clearly
established Federal law.’ ” Musladin, 549 U. S., at 77 (quot
ing 28 U. S. C. § 2254(d)(1)). Under the explicit terms of
§ 2254(d)(1), therefore, relief is unauthorized.
* * *
Petitioner tells us that “[i]n urging review, [the State] does
not condone, recommend, or encourage the practice of de
fense counsel assisting clients by telephone rather than in
person at court proceedings, even in nonadversarial hearings
such as the plea hearing in this case,” Pet. for Cert. 5, and he
acknowledges that “[p]erhaps, under similar facts in a direct
federal appeal, the Seventh Circuit could have properly
reached the same result it reached here,” ibid. Our own
consideration of the merits of telephone practice, however, is
for another day, and this case turns on the recognition that
no clearly established law contrary to the state court’s con
clusion justifies collateral relief.
The judgment is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
Justice Stevens, concurring in the judgment.
An unfortunate drafting error in the Court’s opinion in
United States v. Cronic, 466 U. S. 648 (1984), makes it neces
sary to join the Court’s judgment in this case.
In Cronic, this Court explained that some violations of the
right to counsel arise in “circumstances that are so likely to
prejudice the accused that the cost of litigating their effect
in a particular case is unjustified.” Id., at 658. One such
circumstance exists when the accused is “denied the pres
ence of counsel at a critical stage of the prosecution.” Id., at
662. We noted that the “presence” of lawyers “is essential

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Stevens, J., concurring in judgment
because they are the means through which the other rights
of the person on trial are secured.” Id., at 653. Regretta
bly, Cronic did not “clearly establis[h]” the full scope of the
defendant’s right to the presence of an attorney. See 28
U. S. C. § 2254(d)(1).
The Court of Appeals apparently read “the presence of
counsel” in Cronic to mean “the presence of counsel in open
court.” Initially, all three judges on the panel assumed that
the constitutional right at stake was the right to have coun
sel by one’s side at all critical stages of the proceeding.*
*In his opinion for a unanimous panel, Judge Evans explained at length
why respondent had not had the assistance of counsel at a critical stage of
the proceeding—the plea hearing—which resulted in a sentence of impris
onment for 25 years. He wrote, in part:
“The Sixth Amendment’s right-to-counsel guarantee recognizes ‘the ob
vious truth that the average defendant does not have the professional
legal skill to protect himself when brought before a tribunal with power
to take his life or liberty.’ Johnson v. Zerbst, 304 U. S. 458, 462–63 . . .
(1938). ‘Of all the rights that an accused person has, the right to be repre
sented by counsel is by far the most pervasive for it affects his ability to
assert any other rights he may have.’ Cronic, 466 U. S. at 654 . . . (citation
omitted). Thus, a defendant requires an attorney’s ‘guiding hand’ through
every stage of the proceedings against him. Powell v. Alabama, 287 U. S.
45, 53 . . . (1932); Cronic, 466 U. S. at 658 . . . . It is well-settled that a
court proceeding in which a defendant enters a plea (a guilty plea or, as
here, a plea of no contest) is a ‘critical stage’ where an attorney’s presence
is crucial because ‘defenses may be . . . irretrievably lost, if not then and
there asserted.’ Hamilton v. Alabama, 368 U. S. 52, 54 . . . (1961). See
also White v. Maryland, 373 U. S. 59, 60 . . . (1963); United States ex rel.
Thomas v. O’Leary, 856 F. 2d 1011, 1014 (7th Cir. 1988). Indeed, with
plea bargaining the norm and trial the exception, for most criminal defend
ants a change of plea hearing is the critical stage of their prosecution.
“In deciding whether to dispense with the two-part Strickland [v. Wash
ington, 466 U. S. 668 (1984),] inquiry, a court must evaluate whether the
‘surrounding circumstances make it unlikely that the defendant could have
received the effective assistance of counsel,’ Cronic, 466 U. S. at 666, . . .
and thus ‘justify a presumption that [the] conviction was insufficiently reli
able to satisfy the Constitution,’ id. at 662 . . . . In this case, although
the transcript shows that the state trial judge did his best to conduct the
plea colloquy with care, the arrangements made it impossible for Van Pat

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128 WRIGHT v. VAN PATTEN
Stevens, J., concurring in judgment
See also Van Patten v. Deppisch, No. 04–1276, 2006 U. S.
App. LEXIS 5147 (CA7, Feb. 27, 2006) (noting that no mem
ber of the Seventh Circuit requested a vote on the warden’s
petition for rehearing en banc). In my view, this interpreta
tion is correct. The fact that in 1984, when Cronic was de
cided, neither the parties nor the Court contemplated repre
sentation by attorneys who were not present in the flesh
explains the author’s failure to add the words “in open court”
after the word “present.”
As the Court explains today, however, the question is not
the reasonableness of the federal court’s interpretation of
Cronic, but rather whether the Wisconsin court’s narrower
reading of that opinion was “objectively unreasonable.”
Williams v. Taylor, 529 U. S. 362, 409 (2000). In light of
Cronic’s references to the “complete denial of counsel” and
“totally absent” counsel, 466 U. S., at 659, and n. 25, and the
opinion’s failure to state more explicitly that the defendant
is entitled to “the presence of counsel [in open court],” id.,
at 662, I acquiesce in this Court’s conclusion that the state
court decision was not an unreasonable application of clearly
ten to have the ‘assistance of counsel’ in anything but the most perfunctory
sense. Van Patten stood alone before judge and prosecutor. Unlike the
usual defendant in a criminal case, he could not turn to his lawyer for
private legal advice, to clear up misunderstandings, to seek reassurance,
or to discuss any last-minute misgivings. Listening over an audio connec
tion, counsel could not detect and respond to cues from his client’s de
meanor that might have indicated he did not understand certain aspects
of the proceeding, or that he was changing his mind. If Van Patten
wished to converse with his attorney, anyone else in the courtroom could
effectively eavesdrop. (We assume the district attorney would balk if he
were expected to conduct last-minute consultations with his staff via
speakerphone in open court, ‘on the record,’ with the defendant taking in
every word.) No advance arrangements had been made for a private line
in a private place, and even if one could ‘perhaps’ have been provided, it
would have required a special request by Van Patten and, apparently, a
break in the proceedings. In short, this was not an auspicious setting for
someone about to waive very valuable constitutional rights.” Van Patten
v. Deppisch, 434 F. 3d 1038, 1042–1043 (CA7 2006).

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established federal law. In doing so, however, I emphasize
that today’s opinion does not say that the state courts’ in
terpretation of Cronic was correct, or that we would have
accepted that reading if the case had come to us on direct
review rather than by way of 28 U. S. C. § 2254. See ante,
at 126; see also Williams, 529 U. S., at 410 (“[A]n unreason
able application of federal law is different from an incorrect
application of federal law”).