[DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                    FILED
                                                           U.S. COURT OF APPEALS
                               No. 10-14934                  ELEVENTH CIRCUIT
                           Non-Argument Calendar                 JUNE 14, 2011
                         ________________________                 JOHN LEY
                                                                   CLERK
                      D.C. Docket No. 1:05-cv-22510-UU

LEO CHARLES HOLLINGSWORTH,

                                                         Petitioner-Appellant,

                                     versus

ATTORNEY GENERAL, STATE OF FLORIDA,
SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

                                                         Respondents-Appellees.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (June 14, 2011)

Before TJOFLAT, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:

     Petitioner, Leo C. Hollingsworth, a Florida state prisoner, appeals the
district court’s denial of his petition for a writ of habeas corpus vacating his 2002

conviction in the Circuit Court for Dade County, Florida, for manslaughter with a

knife.1 28 U.S.C. § 2254. Petitioner sought the writ on the ground that his court-

appointed attorney rendered ineffective assistance of counsel by failing—during

the three years he represented petitioner pretrial—to investigate and prepare a

defense to the charge pending against him, second-degree murder. Although the

circuit court dismissed the attorney and appointed new counsel, petitioner claimed

that the previous attorney’s ineffective representation before new counsel came

aboard prevented the latter from preparing an appropriate defense to the charge.

       The circuit court (the judge who presided over petitioner’s criminal

prosecution), in post-conviction proceedings under Florida Rule of Criminal

Procedure 3.850, denied petitioner’s ineffective-assistance-of-counsel claim. In

doing so, the court rejected petitioner’s argument that it should presume that the

first attorney prejudiced petitioner’s defense. See United States v. Cronic, 466



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          Petitioner was charged in April 1998 with second-degree murder for killing Donald
Watkins with a knife. Petitioner and Watkins were homeless. On the morning of April 4, 1998,
they, and 60-70 homeless men were fed breakfast by the Jesus People Ministry. While petitioner
and Watkins were waiting in line for food, an altercation occurred between them and petitioner
stabbed Watkins with a knife without justification, according to the State. Petitioner claimed that
he stabbed Watkins in self-defense, and so testified at trial. The defense failed, and the jury
convicted him of the lesser included offense of manslaughter with a knife. The court sentenced
petitioner to a prison term of 17.31 years. Petitioner’s conviction was affirmed on direct appeal.
Hollingsworth v. State, 

(Fla. 3d Dist. Ct. App. 2004).

                                                

, 

, 

(1984). The circuit court’s ruling was

affirmed on appeal, without opinion. Hollingsworth v. State, 

(Fla.

3d Dist. Ct. App. 2005).

      The district court denied petitioner’s § 2254 petition on the ground that the

district court of appeal’s affirmance of the circuit court’s Rule 3.850 decision was

not contrary to or an unreasonable application of clearly established federal law.

See 2254(d). The district court nonetheless granted petitioner’s application for a

certificate of appealability (“COA”), so that this appeal could go forward. The

COA contains one issue: “whether Petitioner’s claim of ineffective assistance of

counsel warrants the presumption of prejudiced discussed in United States v.

Cronic.

      On appeal, petitioner asserts that three types of cases warrant Cronic’s

presumption of prejudice, and that his case presents a combination of the first and

third types because (1) his first attorney’s inaction for three years constructively

denied him the presence of counsel during the pretrial period, which is a critical

stage of the criminal case; and (2) the time that elapsed before the appointment of

substitute counsel rendered it highly unlikely that any attorney could have

prepared effectively for trial.

      A district court’s grant or denial of a habeas corpus petition under § 2254 is

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reviewed de novo. Sims v. Singletary, 

, 1304 (11th Cir. 1998). We

examine the district court’s factual findings for clear error, but review an

ineffective-assistance-of-counsel claim, which presents a mixed question of law

and fact, de novo. 

2254(d), a writ of habeas corpus may not issue unless the decision

of the state court denying the constitutional claim at issue was (1) contrary to or an

unreasonable application of clearly established federal law, as determined by the

Supreme Court, or (2) based on an unreasonable determination of the facts in light

of the evidence presented during the state court proceeding. 28 U.S.C. § 2254(d).

A state court decision is “contrary to” clearly established federal law if a state

court: (1) arrives at a conclusion opposite to that reached by the Supreme Court on

a question of law; or (2) decides a case differently than the Supreme Court has on

a set of materially indistinguishable facts. Williams v. Taylor, 

,

405-06, 

, 1519-20, 

(2000). A state court’s

decision is not contrary to clearly established federal law, however, merely

because the state court failed to cite federal law. Early v. Packer, 

, 8,

, 365, 

(2002). Moreover, where there is no

Supreme Court precedent on point, the state court’s conclusion cannot be contrary

to clearly established federal law. Henderson v. Campbell, 

, 890 n.15

                                           4
(11th Cir. 2003).

      A state court decision amounts to an unreasonable application of federal law

if the state court (1) “identifies the correct governing legal rule from [the Supreme]

Court’s cases but unreasonably applies it to the facts of the particular state

prisoner’s case,” or (2) “unreasonably extends a legal principle from [the Supreme

Court’s] precedent to a new context where it should not apply or unreasonably

refuses to extend that principle to a new context where it should apply.” 

, 120 S.Ct. at 1520. When making the “unreasonable application”

inquiry, we need not decide if we “would have reached the same result as the state

court if we had been deciding the issue in the first instance.” Wright v. Sec’y for

the Dep’t of Corr., 

, 1256 (11th Cir. 2002). Rather, we decide “only

whether the state court’s decision of the issue is objectively unreasonable.” Id.;

see Hawkins v. Alabama, 

, 1307 n.3 (11th Cir. 2003) (noting that a

state court’s refusal to extend legal principles set forth by the Supreme Court to

substantially different circumstances than those already addressed by the Supreme

Court can be objectively reasonable).

      The Constitution provides that “[i]n all criminal prosecutions, the accused

shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S.

Const. Amend. VI. Moreover, the right to counsel is the right to effective

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assistance of counsel. Strickland v. Washington, 

, 686, 

, 2063, 

(1984). To establish a case of ineffective assistance

of counsel, a petitioner must show that (1) his counsel’s performance was

deficient, and (2) his defense was prejudiced by the deficient performance. 

104 S.Ct. at 2064. In certain contexts, however, “prejudice is presumed.” 

104 S.Ct. at 2067. Specifically, a presumption of prejudice applies to an

“[a]ctual or constructive denial of the assistance of counsel altogether” and to

“various kinds of state interference with counsel’s assistance.” This is because

“[p]rejudice in these circumstances is so likely that case-by-case inquiry into

prejudice is not worth the cost” and “such circumstances involve impairments . . .

that are easy to identify and, . . . because the prosecution is directly responsible,

easy for the government to prevent.” 

States v. Cronic, the Supreme Court identified three

ineffective-assistance-of-counsel circumstances “so likely to prejudice the accused

that the cost of litigating their effect in a particular case is unjustified.” 

, 658, 

, 2046, 

(1984). Such circumstances are

present when (1) there is a complete denial of counsel; (2) “counsel entirely fails

to subject the prosecution’s case to meaningful adversarial testing”; and

(3) counsel is called on to render assistance under circumstances where “the

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likelihood that any lawyer, even a fully competent one, could provide effective

assistance is so small that a presumption of prejudice is appropriate without

inquiry into the actual conduct of the trial.” 

104 S.Ct. at 2047; see

also Bell v. Cone, 

, 695-96, 

, 1851, 

(2002) (elaborating that a presumption of prejudice is warranted when (1) “the

accused is denied the presence of counsel at a critical stage”; (2) “counsel entirely

fails to subject the prosecution’s case to meaningful adversarial testing”; or

(3) “counsel is called upon to render assistance under circumstances where

competent counsel very likely could not” (quotations omitted)). In these

circumstances, it is possible to presume prejudice to the defense. Hunter v.

Moore, 

, 1070 (11th Cir. 2002). Aside from these three situations, a

petitioner pursuing an ineffective-assistance-of-counsel claim must demonstrate

prejudice. Purvis v. Crosby, 

, 741 (11th Cir. 2006).

      In Bell, the Supreme Court identified “critical stage[s]” of a prosecution by

looking to previous cases in which it had characterized various stages of criminal

proceedings as holding “significant consequences for the accused.” 

& 

& n.3. To this end, in Powell v. Alabama, the

Court described the pre-trial period as perhaps the most critical period of the

proceedings . . . that is to say, from the time of their arraignment until the

                                           7
beginning of their trial, when consultation, thorough-going investigation and

preparation were vitally important. 

, 57, 

, 59-60, 

(1932). In Geders v. United States, where the trial court precluded the

defendant from consulting with counsel during a seventeen-hour overnight recess

between his direct and cross-examination, the Court, without considering the issue

of prejudice, held that the defendant was deprived of his Sixth Amendment right to

counsel. 

, 88-91, 

, 1335-36, 

(1976). The

Court reasoned that “[s]uch recesses are often times of intensive work, with

tactical decisions to be made and strategies to be reviewed.” 

96 S.Ct. at

1335.

        In Bell, the Court recognized that Powell presented circumstances in which

the likelihood that any lawyer could provide effective assistance was so small that

a presumption of prejudice was warranted. 

& 

& n.3. In Powell, the defendants had been indicted for a highly

publicized capital 

, 53 S.Ct. at 57-58. Six days before

trial, the court appointed “all the members of the bar” to represent them for

purposes of arraignment. 

53 S.Ct. at 58. On the day the trial was to

commence, an out-of-state lawyer appeared on behalf of persons “interested” in

the defendants, but stated that he was unwilling to represent the defendants

                                          8
because he had not prepared the case and was unfamiliar with local rules. 

53 S.Ct. at 58-59. The court resolved the problem by stating that the

out-of-state lawyer would represent the defendants, with whatever help the local

bar could provide. 

53 S.Ct. at 59. The Powell Court concluded that

“such designation of counsel as was attempted was either so indefinite or so close

upon the trial as to amount to a denial of effective and substantial aid in that

regard.” 

53 S.Ct. at 58. In support, the Court also noted that the

defendants were “young, ignorant, illiterate, surrounded by hostile sentiment,

haled back and forth under guard of soldiers, [and] charged with an atrocious

crime regarded with especial horror in the community where they were to be

tried.” 

53 S.Ct. at 60.

      However, “[n]ot every restriction on counsel’s time or opportunity to

investigate or to consult with his client or otherwise to prepare for trial violates a

defendant’s Sixth Amendment right to counsel.” Morris v. Slappy, 

, 3,

11, 

, 1612, 1616, 

(1983). See Chambers v.

Maroney, 

, 53-54, 

, 1982-1983, 

(1970)

(rejecting an ineffective-assistance claim predicated on the appointment of counsel

minutes before the beginning of the petitioner’s second trial and declining to

establish “a per se rule requiring reversal of every conviction following tardy

                                           9
appointment of counsel”); Avery v. State of Ala., 

, 447, 450-53, 

, 322, 324-25, 

(1940) (holding that, although counsel in a

capital case was appointed only three days before trial, the petitioner was not

deprived of effective assistance because the evidence and witnesses were easily

accessible and, thus, the time provided was adequate for preparation); Kimmelman

v. Morrison, 

, 381 & n.6, 384-85, 

, 2586 & n.6, 2588,

(1986) (recognizing that Strickland, not Cronic, applied to an

ineffective-assistance claim concerning trial counsel’s failure to file a timely

suppression motion because he neglected to conduct a pretrial investigation and,

as a result, did not know that a search had been conducted or that the state

intended to introduce evidence obtained during the search at trial).

      Petitioner did not carry his burden of showing that his first attorney’s

failure to conduct pretrial investigation over a three-year period rendered

substitute counsel’s ability to provide effective assistance so unlikely that a

presumption of prejudice was warranted. Accordingly, we agree with the district

court that the state court’s application of Strickland, rather than Cronic, was not

contrary to or an unreasonable application of federal law.

      The judgment of the district court is, accordingly,

      AFFIRMED.

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