[D O NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

F O R THE ELEVENTH CIRCUIT FILED

U .S . COURT OF APPEALS

E L E V E N T H CIRCUIT

S e p t e m b e r 26, 2006

N o . 05-15120 T H O M A S K. KAHN

N o n - A r g u m e n t Calendar CLERK

D . C. Docket No. 04-60510-CV-ASG

E R IC FRAZIER,

Petitioner-Appellant,

versus

SECRETARY FOR THE DEPARTMENT OF CORRECTIONS,

James McDonough, Secretary,

Respondent-Appellee.

A p p e al from the United States District Court

fo r the Southern District of Florida

(S ep tem b er 26, 2006)

B efo re DUBINA, HULL and KRAVITCH, Circuit Judges.

P E R CURIAM:

E r ic Frazier, a Florida state prisoner proceeding pro se, appeals the district co u rt's denial of his petition for habeas relief, brought pursuant to 28U.S.C.

§ 2254. At issue in this case is whether Frazier can show per se ineffective assistan ce of counsel under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039 (1 9 8 4 ). After a thorough review of the record, we conclude that Frazier cannot m eet his heavy burden under Cronic. Therefore, we affirm.

Frazier filed a pro se § 2254 petition, alleging, inter alia, Sixth Amendment v io la tio n s under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), an d Cronic in connection with a hearing to stay state trial proceedings.1 T h e facts relating to Frazier's state convictions are as follows: Frazier was c h a rg e d with attempted murder in the first degree, armed burglary, and aggravated a ss au lt. He was found guilty and sentenced in December 1993 to life im p riso n m en t and a concurrent ten-year sentence. Frazier appealed, challenging th e jury instructions, and the state court of appeals reversed in part and remanded fo r a new trial. Frazier v. State, 664 So.2d 985 (Fla. Dist. Ct. App. 1995). The state sought supreme court review of the issue related to jury instructions. The state supreme court denied certiorari, and the state filed for certiorari in the U.S. S u p r em e Court. The state also requested that the state court stay the trial p ro ceed in g s pending U.S. Supreme Court review. At the hearing on the motion to s ta y proceedings, the public defender, who had a conflict of interest preventing her fro m representing Frazier, argued that Frazier was entitled to counsel during the p ro ceed in g s. The state attorney disagreed and clarified that he was not seeking to to ll the speedy trial period. The court expressed concern that the state not let the s p e ed y trial period expire before commencing a new trial. The court then noted th at Frazier's trial counsel, Mr. Thurston, was in the courtroom and appointed him to represent Frazier for the limited purpose of the hearing. Although Thurston in fo rm ed the court that he was unfamiliar with the issues before the court and req u ested a continuance, the court denied the request. After a brief recess during w h ich Thurston was able to confer with Frazier, Thurston objected to the stay on th e ground that it would prejudice Frazier. The court granted the stay, however, an d Frazier moved to disqualify the judge. At the subsequent hearing on recusal, th e state requested an extension of the speedy trial period.2 The court granted the m o tio n to recuse and the motion to extend the speedy trial period, explaining that it u s e d the terms `tolling' and `extending' interchangeably, and that the earlier m o tio n to stay the trial proceedings encompassed both the stay and the extension of th e speedy trial period. The judge appointed to replace the previous judge also o r d e r e d a stay of the proceedings pending review. The U.S. Supreme Court u ltim ately denied certiorari.

After the second trial resulted in a mistrial, Frazier moved to discharge the p r o c e e d in g s , arguing that the speedy trial period had expired and that he had been d en ied assistance of counsel at the hearing seeking to stay the trial proceedings. At th e third trial, Frazier was convicted of attempted murder in the first degree, attem p ted murder in the second degree, and armed burglary and was sentenced to lif e imprisonment with concurrent 25-year terms. Frazier's convictions were affirm ed on direct appeal. Frazier v. State, 761 So.2d 337 (Fla. Dist. Ct. App.

1 9 9 9 ). The state supreme court denied review.

After filing several motions challenging his sentences, Frazier filed a state p o s t- co n v ic tio n motion under Fla. R. Crim. P. 3.850, challenging, inter alia, in effectiv e assistance of counsel in connection with the speedy trial extension. The m o tio n was denied and ultimately affirmed on appeal. Frazier then filed the instant § 2254 petition.

Recommending that the petition be denied, the magistrate judge found that co u n sel had been appointed for the limited purpose of representing Frazier at the stay proceedings, counsel was given time to confer with Frazier, and there was no e v id e n c e that counsel's performance was deficient under Strickland. Frazier o b jected to the recommendation, arguing that he suffered prejudice because co u n sel failed to conduct meaningful adversarial testing, was given no time to in v estig ate and only a brief time to confer, and counsel was unaware of the facts.

The district court adopted the magistrate judge's recommendation, over Frazier's o b jectio n s, and denied habeas relief because there was no evidence of deficient p erfo rm an ce or prejudice.

The district court granted Frazier a certificate of appealability ("COA") on th e following issue: "Whether petitioner's trial counsel provided ineffective assistan ce of counsel per se because his counsel was appointed shortly before the h earin g on petitioner's request to extend the speedy trial period?"3 O n appeal, Frazier argues that the court erred by considering his argument u n d e r the standards for ineffective assistance of counsel in Strickland rather than th e standard set out in Cronic, and that such analysis was contrary to clearly estab lish ed federal law. Frazier asserts that the facts of the case establish per se p reju d ice under Cronic and require reversal.

In examining a federal district court's denial of a § 2254 habeas petition, we rev iew questions of law de novo and findings of fact for clear error. LeCroy v. S e c'y , Fla. Dep't of Corr., 421 F.3d 1237, 1259 (11th Cir. 2005). "When ex am in in g a state supreme court's denial of a state habeas petition, [this court] ask [s] whether the decision was either `contrary to, or involved an unreasonable ap p licatio n of, clearly established Federal law, as determined by the Supreme C o u rt of the United States' or `based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.'" 28U.S.C.

§ 2254(d); Occhicone v. Crosby, 455 F.3d 1306, 1308 (11th Cir. 2006).

T h e Sixth Amendment provides that "[i]n all criminal prosecutions, the accu sed shall enjoy the right . . . to have the Assistance of Counsel for his d efen se." U.S. Const. Amend. VI, "[T]he right to counsel is the right to the effectiv e assistance of counsel." Strickland, 466 U.S. at 686 (quoting McMann v. R ich ard so n , 397 U.S. 759, 771 n. 14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970)).

Under the standard set forth in Strickland, to establish ineffective assistance of co u n sel, a defendant must show that counsel's performance was deficient and the d efen d an t was prejudiced as a result. Strickland, 466 U.S. at 687. The U.S.

S u p rem e Court, however, has carved out an exception; prejudice need not be sh o w n in certain limited situations in which there is per se ineffectiveness: (1) where there has been a `complete denial of counsel;' (2) where the a cc u s ed is denied the presence of counsel at `a critical stage' such as arraig n m en t; (3) `[when] counsel entirely fails to subject the p r o s e cu tio n 's case to meaningful adversarial testing;' and (4) where circu m stan ces are so prejudiced against the defendant that competent c o u n s el could not render effective assistance.

C ro n ic, 466 U.S. at 659-61.

H ere, Frazier raises all four instances to establish per se ineffectiveness u n d er the Sixth Amendment. Upon review of the record, we conclude that there is n o merit to Frazier's claim that he suffered a "complete denial of counsel" or that c o u n s el was not present at a critical stage of the proceedings, as the court ap p o in ted Thurston to represent Frazier at the hearing.4 C o n s id e r in g the remaining situations of per se ineffectiveness, Frazier can n o t meet his heavy burden under Cronic.

This court has explained that, [i]n Cronic, the Court carved out a narrow exception to [Strickland's] g en eral rule that a defendant must demonstrate prejudice: a showing o f prejudice is not necessary if there are `circumstances that are so lik ely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.' Circumstances which would warrant a presumption of prejudice from counsel's ineffectiveness are those w h ere `the adversary process itself is [rendered] presumptively u n reliab le [by the circumstances].' Id . (citing Chadwick v. Green, 740 F.2d 897, 900 (11th Cir. 1984) (citations and f o o tn o te omitted)). "[T]he burden of proof under Cronic is a very heavy one." Smith v. Wainwright, 777 F.2d 609, 620 (11th Cir. 1985). In fact, this court has co n clu d ed that "Cronic's presumption of prejudice applies to only a very narrow s p e ctr u m of cases where the circumstances leading to counsel's ineffectiveness are s o egregious that the defendant was in effect denied any meaningful assistance at all." Chadwick, 740 F.2d at 901.

H ere, the court appointed counsel for Frazier for the limited purpose of ad d ressin g the motion to stay proceedings. Generally, the late appointment of c o u n s el does not rise to the level of the Cronic standard. See Cronic, 466 U.S. at 6 6 1 -6 2 (citing Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 ( 1 9 7 0 ) ) . Moreover, at the hearing, counsel objected to the stay and argued that F r az ie r would be prejudiced by the delay. There is no evidence that counsel was u n ab le to raise objections or make argument, or that counsel failed to test the ad v ersarial system. Nor is there evidence that the circumstances were so p reju d icial that competent counsel could not render effective assistance. Thus, the facts of this case do not meet the heavy burden under Cronic. Accordingly, we A F F IR M .

1 Frazier filed his petition after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-32, 110 Stat. 1214 (1996), and, therefore, the provisions of that act govern this appeal.

2 It does not appear that Frazier was represented by counsel at this hearing at which the state attorney reversed its position on the tolling of the speedy trial period and requested an extension, which it specifically had said it was not seeking during the earlier hearing.

3 The district court's COA mistakenly indicates that Frazier requested the extension of the speedy trial period.

4 As noted above, Frazier did not have counsel present at the second hearing during which the state attorney moved to extend the speedy trial period. Because Frazier did not have counsel, there was no one to challenge the state on this issue. However, this concern is beyond the scope of the COA, and, therefore, is not properly before this court. Murray v. United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).