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As amended August 29, 2001.

Appeal from the United States District Court for the Southern District of Texas

In this case we consider whether the district court properly granted a Petition for Writ of Habeas Corpus filed by Calvin Jerold Burdine based on state habeas court findings that Burdine’s court-appointed attorney slept repeatedly throughout the guilt-innocence phase of his 1984 capital murder trial. The district court concluded “sleeping counsel is equivalent to no counsel at all” and granted relief pursuant to 28 U.S.C. § 2254. A divided panel of this Court reversed, holding that (1) the district court’s presumption of prejudice for purposes of ineffective assistance constituted a new rule of law from which Burdine could not benefit under Teague’s non-retroactivity doctrine, and (2) the circumstances of Burdine’s representation did not require a presumption of prejudice to ensure the fairness of Burdine’s capital murder trial. See Burdine v. Johnson, 231 F.3d 950 (5th Cir. 2000).

 
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