Roderick Lewis v. Dushan Zatecky (7th Cir. April 2021)

The Federal Docket

Ineffective Assistance – A defense attorney’s silence at sentencing amounts to a total failure to subject the prosecution’s case to meaningful adversarial testing, triggering Cronic, and prejudice from such ineffective assistance of counsel is presumed.

Roderick Lewis was convicted of felony murder after a jury trial. At sentencing, his lawyer, who Lewis had several disagreements with, had only stood up at sentencing to say he was “going to defer to Mr. Lewis if he has any comments. I don’t have anything to add.” During later post-conviction proceedings, Lewis’s lawyer testified that he had not many any inquiries into Lewis’s mental health history, was not aware of Lewis’s prior attempted suicides, his prior abuse as a child, his bipolar disorder diagnosis, Lewis’s relative role as an accomplice, and his lawyer had not done anything to prepare for the sentencing hearing or prepare Lewis for it.

On appeal from a denial of Lewis’s 2254, the Seventh Circuit held that the state courts had erroneously denied Lewis’s claims based on the ineffective assistance test from Strickland v. Washington, where United States v. Cronic actually applied. This mattered because Cronic claims do not require a showing of prejudice.

Here, Lewis’s attorney “did absolutely nothing for him” according to the Court. Distinguishing this case from the many cases where SCOTUS and other courts had held that Cronic did not apply, the Court here explained that Lewis’s lawyer’s conduct had effectively denied Lewis counsel “at a critical stage” of his proceedings, his sentencing. Lewis’s lawyer’s “assistance” (quotations used by the Court) constituted “a statement that he was bowing out” that “went beyond a failure to conduct adversarial testing; it was an announcement of abandonment.”

Here, there was no doubt that Lewis’s lawyer’s conduct was constitutionally deficient–in fact the Indiana Supreme Court had found as much before denying his petition based on lack of prejudice. Since Cronic applied, prejudice was presumed, and Lewis was entitled to a resentencing.

Dissenting, Judge Brennan stressed the high procedural hurdles imposed by AEDPA and argued that, while he agreed Lewis had received ineffective counsel, it was during a critical stage, and he might join the majority opinion if the case was on direct appeal, Lewis’s claim should be denied because “no Supreme Court decision holds that silence at sentencing by defense counsel triggers Cronic‘s presumption of prejudice.”

On appeal from the Southern District of Indiana
Opinion by Wood, joined by Sykes
Dissent by Brennan

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

Scroll to Top