United States v. Calvin Thomas

Calvin Thomas appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal criminal convictions for bank robbery, Hobbs Act robbery, assault on a federal officer, and gun charges in connection with these offenses. The issue is whether prejudice should be presumed under United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), on account of trial counsel’s concession of Thomas’s guilt on the Hobbs Act robbery charge without consulting Thomas or obtaining his consent, or instead must be proved under Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). The district court found that counsel’s statements were part of a trial strategy to make his challenge to other charges more credible, and did not constitute abandonment. It held that Strickland , rather than Cronic , applies, and concluded that Thomas had made no showing of a reasonable probability that the outcome of the trial would have been different absent counsel’s statements to the jury. We agree, and affirm.

I

Two robberies occurred on consecutive days in February 1996, the first of United California Savings Bank in Riverside, and the second…

with whom FISHER, Circuit Judge, joins, concurring:

Our affirmance of Thomas’s conviction should not be read as condoning his attorney’s conduct in this case. On the contrary, Thomas’s attorney abdicated one of *1060 defense counsel’s most basic responsibilities: to consult with his client about important decisions relating to the representation. See Florida v. Nixon, — U.S. -, -, 125 S.Ct. 551, 560 , 160 L.Ed.2d 565 (2004); Strickland v. Washington, 466 U.S. 668, 688 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

While a carefully tailored concession can be a shrewd trial tactic in certain cases, it is entirely inappropriate for an attorney to make such a concession without prior discussion with the client. Consultation is vital not only to inform the client about his lawyer’s proposed course of action, but also (more importantly) to provide the defendant with an opportunity to object to any contemplated concessions. In the ordinary representation, an attorney should obtain his client’s express consent to a strategy conceding guilt (or any essential element thereof) on any charge or charges; in the unusual circumstance where consent is not possible (as in Nixon , where the defendant…

417 F.3d 1053 UNITED STATES of America, Plaintiff-Appellee, v. Calvin THOMAS, Defendant-Appellant. No. 03-56750. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 2005. Filed August 3, 2005. Gary P. Burcham, San Diego, CA, for defendant-appellant Calvin Thomas. Alka Sagar, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee the United States. Appeal from the United States District Court for the Central District of California; Robert J. Timlin, District Judge, Presiding. D.C. Nos. CV-02-00179-RT, CR-96-00006-RT. Before: B. FLETCHER, RYMER, and FISHER, Circuit Judges. RYMER, Circuit Judge: 1 Calvin Thomas appeals the denial of his 28 U.S.C. § 2255 motion to vacate, set aside, or correct his federal criminal convictions for bank robbery, Hobbs Act robbery, assault on a federal officer, and gun charges in connection with these offenses. The issue is whether prejudice should be presumed under United States v. Cronic, 466 U.S. 648 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984), on account of trial counsel's concession of Thomas's guilt on the Hobbs Act robbery charge without consulting Thomas or obtaining his consent, or instead must be…