Donald Ray PERRY, Plaintiff-Appellee, v. William D. LEEKE, Commissioner, South Carolina Department of Corrections; Attorney General of South Carolina, Defendant-Appellant, 832 F.2d 837

WILKINSON, Circuit Judge: Donald Ray Perry was convicted of murder, kidnapping, and criminal sexual assault. He sought a writ of habeas corpus on the ground that he was not permitted to confer with his counsel during a fifteen minute trial recess between direct and cross-examination. The district court ordered that the writ should issue unless Perry was retried within a reasonable period. Because any error at the state trial did not prejudice Perry under the standard established in Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), we reverse the judgment of the district court and remand with directions to dismiss this petition. I. On March 5, 1981, Mary Heimberger had dinner with two friends at a restaurant in Richland County, South Carolina. After dinner, she left the restaurant alone in her own car. She was not seen again until March 7, when two boys found her dead body in a wooded area. Donald Ray Perry’s fingerprint was later found on Heim-berger’s car; tire tracks from Perry’s car were also found on the scene, as were prints of Perry’s shoes.

After police arrested Perry, he confessed that he had shot Heimberger, but said it was an accident. A medical examination of Heimberger’s body indicated that someone had raped her, attempted to strangle her, shot her in both kneecaps, and then shot her fatally in the chest. The entrance to her vagina had been bruised and torn. Following Heim-berger’s death, a large stick had been shoved into her rectum and left there. Perry’s jury trial began on September 21 and ended on October 2. The defense called many witnesses, including Perry himself.

On September 29, the trial judge ordered a fifteen minute recess after Perry completed his direct testimony. Perry’s counsel sought to speak to him during the recess, apparently to answer a question Perry had and to advise him of his rights on cross-examination. The trial court did not allow the consultation, explaining that Perry “was not entitled _ to be cured or assisted or helped approaching his cross-examination.” Perry’s counsel objected, and the objection was overruled. Perry was convicted. The state of South Carolina sought the death penalty for Perry; the jury recommended a sentence of life imprisonment.

On October 5, the trial judge sentenced Perry to life imprisonment for murder, life imprisonment for kidnapping, and thirty years’ imprisonment for criminal sexual conduct in the first degree. Perry argued before the Supreme Court of South Carolina that he had been denied his Sixth Amendment right to counsel because he was not allowed to speak with his lawyer during the fifteen minute recess between direct and cross-examination. The state Supreme Court rejected this argument.

Because Perry had been sentenced to life imprisonment for murder, however, that court reversed the sentence for life imprisonment for kidnapping under South Carolina law. State v. Perry, 278 S.C. 490, 299 S.E.2d 324 (1983). The United States Supreme Court denied certiorari. Perry v. South Carolina, 461 U.S. 908, 103 S.Ct. 1881, 76 L.Ed.2d 811 (1983). In November of 1985, more than four years after his trial and more than two and one-half years after the denial of certiorari, Perry sought a writ of habeas corpus in federal district court.

The district court granted relief on the basis of our earlier decisions in United States v. Allen, 542 F.2d 630 (4th Cir.1976), cert. denied, 430 U.S. 908, 97 S.Ct. 1179, 51 L.Ed.2d 584 (1977), and Stubbs v. Bordenkircher, 689 F.2d 1205 (4th Cir.1982), cert. denied, 461 U.S. 907, 103 S.Ct. 1879, 76 L.Ed.2d 810 (1983), which held that it is always reversible error for a trial court to prevent a defendant and his counsel from conferring during a recess, no matter how brief. We granted en banc review to determine whether Allen and Stubbs continue to govern in light of the Supreme Court decisions in United States v.

Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For the reasons expressed in Allen, we believe the bar order at issue here was error. We also believe, however, that the reasoning of Strickland and Cronic mandates reversal only if that error was prejudicial. II. We begin by sketching briefly the legal context. The right to counsel is, without question, a fundamental right of criminal defendants. Some interferences with this right pose such a fundamental threat to a fair trial that reversal of a conviction is automatic.

Cronic, 466 U.S. at 658-59, 104 S.Ct. at 2046-47 (1984); Strickland, 466 U.S. at 692, 104 S.Ct. at 2067; Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1183, 55 L.Ed.2d 426 (1978); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Not every limitation of the relationship between a defendant and his attorney violates the defendant’s right to counsel, however. A trial court is not required, for example, to interrupt trial proceedings whenever a defendant and his attorney express a desire to confer.

Moreover, other deprivations at trial, such as ineffective assistance of counsel, do not amount to a denial of the right to counsel requiring automatic reversal of a conviction; such a deprivation constitutes grounds for reversal only if prejudicial. Cronic; Strickland. A barrier to consultation might thus amount to a fundamental denial of the right to counsel, requiring reversal; a lesser deprivation, requiring reversal only if it is prejudicial; or no deprivation at all. Here we must determine the appropriate treatment of an order barring consultation during a brief, routine recess.

The Supreme Court’s decision in Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976), is the starting point. Geders held that a defendant’s right to counsel was violated, requiring automatic reversal, when the trial court prevented him from consulting with his attorney during an overnight recess. The opinion emphasized the importance of an overnight recess, which gives “the defendant a chance to discuss with counsel the significance of the day's events,” to make tactical decisions, and to review strategies for the remainder of the trial. Id. at 88, 96 S.Ct. at 1335.

The concurring opinion of Justice Marshall, joined by Justice Brennan, argued that the same rule of automatic reversal was “fully applicable to the analysis of any order barring communication between a defendant and his attorney.” Id. at 92, 96 S.Ct. at 1337 (emphasis in original). The opinion of the Court, however, did not go so far. The majority stated that “an embargo order preventing a defendant from consulting his attorney during a brief routine recess during the trial day” was “a matter we emphasize is not before us in this case.” Id. at 89 n. 2, 96 S.Ct. at 1336 n. 2.

The Court later repeated this caveat: The challenged order prevented petitioner from consulting his attorney during a 17-hour overnight recess, when an accused would normally confer with counsel. We need not reach, and we do not reach, limitations imposed in other circumstances. Id. at 91, 96 S.Ct. at 1337. While there is a division among the circuits, the majority have generally extended the per se reversal rule of Geders to cover lesser restrictions on consultation. The Sixth Circuit has extended Geders to cover a one-hour lunch recess. United States v. Bryant, 545 F.2d 1035 (6th Cir.1976).

The Fifth and Eleventh Circuits have held that Geders covers any recess, no matter how brief. Crutchfield v. Wainwright, 803 F.2d 1103 (11th Cir.1986) (en banc); United States v. Conway, 632 F.2d 641 (5th Cir.1980). The District of Columbia Circuit and the Eighth Circuit have indicated agreement with this view in dicta. Mudd v. United States, 798 F.2d 1509, 1511 (D.C.Cir.1986); United States v. Vesaas, 586 F.2d 101, 102 n. 2 (8th Cir.1978). The Second Circuit has rejected this view, however, applying harmless error analysis instead. United States v.

DiLapi, 651 F.2d 140, 147-48 (2d Cir.1981), cert. denied, 455 U.S. 938, 102 S.Ct. 1427, 71 L.Ed.2d 648 (1982); United States v. Leighton, 386 F.2d 822 (2d Cir.1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). In Allen, a panel of this circuit addressed the issue left open by the majority opinion in Geders and adopted the position of Justice Marshall’s concurrence.

The panel stated that “a restriction on a defendant’s right to consult with his attorney during a brief routine recess is constitutionally impermissible” and that reversal would be necessary whether or not the restriction was prejudicial. 542 F.2d at 634. Later, in Stubbs, we qualified Allen slightly to require the petitioner “to show that he desired to consult with his attorney, and would have consulted with him but for the restriction placed upon him by the trial judge.” 689 F.2d at 1207.

Because the defendant in Stubbs had not objected to the restriction and because neither petitioner nor his attorney had requested permission to confer, the habeas petition was denied. In the present case, Perry’s counsel objected to the restriction when he learned of it, so the Stubbs requirement has been satisfied. III. It is clear that Allen and Stubbs would govern in this case in the absence of the Supreme Court’s recent decisions in Strickland and Cronic. The Court’s analysis of the Sixth Amendment in those cases, however, requires us to reexamine our own analysis in Allen and Stubbs.

We believe that the per se reversal rule of those cases cannot be squared with the analysis of Strickland and Cronic, and must be replaced with an inquiry into prejudice. The Supreme Court held in Strickland and Cronic that ineffective assistance of counsel at trial does not require reversal of a conviction unless the deficient performance of counsel was sufficiently prejudicial. “The defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.

At the same time, the Court reaffirmed its previous cases, including Ged-ers, which held that the complete denial of counsel at a critical stage of trial is automatically grounds for reversal. Cronic, 466 U.S. at 659 & n. 25, 104 S.Ct. at 2047 n. 25. Strickland and Geders do not imply, however, that Sixth Amendment claims can be mechanically divided into a typology requiring automatic reversal when there is a “denial of counsel” and a prejudice analysis where there is “ineffective assistance.” The determinative factor in analyzing a Sixth Amendment claim is not the label to be attached to the alleged deprivation.

The Supreme Court has recognized as much by alternately describing Geders as a case involving the denial of counsel, Cronic, 466 U.S. at 659 n. 25, 104 S.Ct. at 2047 n. 25, and as a case involving ineffective assistance. Strickland, 466 U.S. at 686, 104 S.Ct. at 2064. Instead, “the ultimate focus of the inquiry must be on the fundamental fairness of the proceeding whose result is being challenged.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069.

Strickland and Cronic held that because the purpose of the Sixth Amendment “is simply to ensure that criminal defendants receive a fair trial,” id. at 689, 104 S.Ct. at 2065, the analysis of claims alleging violations of the right to counsel always focuses on prejudice. Automatic reversal is warranted only where prejudice can be presumed: [T]he right to the effective assistance of counsel is not recognized for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial.

Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.... There are, however, circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified. Cronic, 466 U.S. at 658, 104 S.Ct. at 2046. See also Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. In Cronic and Strickland, the petitioners contended that they had been deprived of their Sixth Amendment rights because they had been represented by allegedly incompetent or inadequate counsel.

Such a deprivation is far more likely to have a prejudicial effect than the deprivation at issue here. Perry had very competent attorneys with whom he was able to confer during an overnight recess the night before and during a luncheon recess immediately prior to his testimony. It would make little sense to maintain a per se rule of reversal for a brief restriction on consultation, but to inquire into prejudice if Perry had been represented incompetently throughout.

The existence of prejudice from a restriction such as this one is necessarily tied to the surrounding facts; it cannot be and will not be presumed to have so infected the entire trial that no course other than reversal of this conviction is conceivable. The quality of Perry’s representation belies the need for a rule of automatic reversal. He was represented by two attorneys, Mr. Fairey and Mr. Mullineaux, who were present and active throughout the case. The defense presented some twenty-seven witnesses in Perry’s behalf. Cross-examination of government witnesses was vigorous throughout.

In all different stages of the trial — from jury selection through closing argument, from the guilt phase through the sentencing phase — this defendant was well served and ably represented. The trial judge commended Perry’s counsel on the record for their competency and zeal, adding that he hoped “that all my lawyers would be equally prepared and dedicated to their cases.” It would be far too simplistic to equate this case with those cases where judgment was rendered on an uncounselled defendant and to lump them all together under a “right to counsel” rubric which requires automatic reversal.

The law must be sensitive to matters of degree, here the fact that for all but the tiniest fraction of trial time defendant consulted with counsel and was championed by counsel in the best traditions of adversary justice. Because the state trial proceedings met the requirements of Geders, our holding is consistent with that decision. This was a lengthy trial, and there were eleven different recesses prior to Perry’s testimony, including two overnight recesses, one weekend recess, and significantly, a luncheon recess immediately before Perry took the stand.

At each of these recesses, there was no restriction on Perry’s access to his counsel. During Perry’s direct examination, a recess was also held at the request of a juror; Perry was not barred from access to counsel at that time either. After Perry’s testimony, there were recesses of varying durations — fifteen minute recesses, luncheon recesses, and overnight recesses — during all of which Perry and his counsel were able to consult. Thus the bar order at issue here applied to but one of many recesses, and a brief one at that.

The restriction at issue in Geders posed so great a danger to a fair trial that prejudice could be presumed. Its duration was extreme (a seventeen-hour overnight recess) and it occurred at a time when defendant and his counsel could have expected to confer. In contrast, the restriction here was not only brief, but occurred during an unscheduled recess during trial. Perry and his counsel had no entitlement to a recess at this time and had no reason to expect a recess to occur by chance between direct and cross-examination.

In a majority of instances, cross-examination of a witness follows direct examination without a break. See Geders, 425 U.S. at 90, 96 S.Ct. at 1336. Because Perry had no entitlement to this recess, the dissenters’ speculation on what valuable services counsel may have rendered is simply misdirected. New ideas or strategies might occur to a defendant or his counsel at any time during a trial, but there is no right to halt the proceedings in order to consult.

To reverse automatically a conviction because of an absence of consultation during one brief, fortuitous recess in a trial which spanned nearly two weeks would be to confer a benefit upon a criminal defendant who may not deserve it. The imprecision of a per se approach is thus apparent. The proper inquiry is whether this trial was unfair, whether this defendant suffered prejudice, whether this conviction was infirm — in short, whether justice was done in this case. IV. A per se rule of reversal is “the exception and not the rule” under any circumstances, Rose v.

Clark, — U.S. -, 106 S.Ct. 3101, 3106, 92 L.Ed.2d 460 (1986). To promulgate such a rule in these circumstances would be doubly inappropriate. The Supreme Court has held that “[t]he role of federal habeas proceedings, while important in assuring that constitutional rights are observed, is secondary and limited.” Barefoot v. Estelle, 463 U.S. 880, 887, 103 S.Ct. 3383, 3391, 77 L.Ed.2d 1090 (1983). A federal habeas court must assure itself that state process did not go seriously amiss.

The role of the habeas court is not to flyspeck state proceedings, however, but to focus on their “fundamental fairness.” Strickland, 466 U.S. at 696, 104 S.Ct. at 2069. Collateral review of state convictions by federal courts undermines the finality of those convictions, degrades the prominence of the trial itself, and creates strains in our federal system. See Engle v. Issac, 456 U.S. 107, 127-28, 102 S.Ct. 1558, 1571-72, 71 L.Ed.2d 783 (1982). Most serious here, though, are the costs associated with retrying a defendant who obtains habeas relief.

While the district court’s order might result in a retrial rather than release for Perry, the “[p]assage of time, erosion of memory, and dispersion of witnesses” may as a practical matter make a second prosecution difficult. Id. Even if an effective retrial is possible, it imposes enormous costs on courts and prosecutors, who must commit already scarce resources “to repeat a trial that has already once taken place.” United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 942, 89 L.Ed.2d 50 (1986). It imposes costs on victims who must “relive their disturbing experiences.” Id. 106 S.Ct. at 942. See also Morris v.

Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 1618, 75 L.Ed.2d 610 (1983). While “prejudical error” would require a retrial regardless of the inconvenience, id., those who participated in the initial proceedings should not be compelled to confront these dreadful events a second time if the first trial has been fair. Retrials, moreover, may lack the reliability of the initial trial where witness testimony was unrehearsed and witness recollections were more immediate.

The costs associated with retrial, and the possibility that changed circumstances may make retrial less reliable or even impossible, Engle, 456 U.S. at 127-28, 102 S.Ct. at 1571-72, are likely to be especially high in this case. Perry did not file his petition for a writ of habeas corpus until more than four years after his trial and more than two and one-half years after the Supreme Court denied his petition for certiorari.

As the Supreme Court noted in Mechanik, these costs “are an acceptable and often necessary consequence when an error in the first proceeding has deprived a defendant of a fair determination of the issue of guilt or innocence. But the balance of interest tips decidedly the other way when an error has no effect on the outcome of the trial.” 106 S.Ct. at 943. Y. The sole remaining issue, therefore, is whether Perry suffered prejudice because of the state court’s bar order. We hold that he did not.

The standard of prejudice under Strickland is whether defendant received a “fair trial” in which “evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.” Strickland, 466 U.S. at 685, 104 S.Ct. 2063. On the basis of the record before us there can be no legitimate fear that the trial court’s order jeopardized Perry’s “ability ... to receive a fair trial,” Cronic, 466 U.S. at 658, 104 S.Ct. at 2046, and there can be no doubt that Perry received “the assistance necessary to justify reliance on the outcome” of his trial.

Strickland, 466 U.S. at 692, 104 S.Ct. at 2067. There is no reason to believe that any communication which might have occurred during the brief recess at issue could have altered Perry’s performance on cross-examination. There is no contention that his counsel failed to explain his rights on cross-examination to him during the many recesses in which consultation was allowed, including the luncheon recess called immediately prior to his taking the stand, nor has it been argued that anything occurred during his direct examination that would have made a “refresher course” necessary.

Further, it is clear from the record that Perry took full advantage of his rights on cross-examination and placed his version of events before the jury. The evidence against Perry was overwhelming. Tire tracks from Perry’s car were found at the murder scene, as were Perry’s footprints. His fingerprint was found on the victim’s car. Perry admitted, at one point, to shooting the victim, but claimed the shooting had been an accident. He later admitted to having sexual relations with the victim against her will on the night of her murder, but claimed that he did so under duress.

The vigor of Perry’s representation throughout by a team of two able attorneys, the length of the trial and the utter brevity of the bar order, the presence of consultative recesses shortly before Perry’s testimony, and the absence of any other colorable assignment of error to any other aspect of these prolonged proceedings persuade us that the possibility of prejudice is utterly remote. While a disputed question of material fact as to prejudice would require a remand, we are unpersuaded that an evidentiary hearing is necessary on this record. VI.

The gravity of a criminal conviction requires that courts strive to make criminal proceedings as fair and flawless as possible. While the courts must do everything they can to protect the rights of accused persons, they must not lose sight of the inevitability of imperfection in our criminal justice system. It would be wrong to exalt technical perfection at the expense of our society’s legitimate and weighty interest in punishing offenders. Where error in a criminal trial is not of the variety that threatens its reliability, rules of per se reversal are unwarranted.

A defendant who suffers such an error must be given the opportunity to show that he has been prejudiced thereby, but he ought not to reap a windfall where he has not been injured. Because Perry was not prejudiced by the trial court’s restriction, the judgment of the district court is reversed and remanded with directions to dismiss this petition. REVERSED AND REMANDED. . Other circuits have likewise applied different labels. The Eleventh Circuit, sitting en banc, recently found that a bar on consultation during recess constitutes a denial of the assistance of counsel, requiring automatic reversal. Crutchfield v.

Wainwright, 803 F.2d 1103, 1108 (11th Cir.1986). The Fifth Circuit, ruling prior to United States v. Cronic, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), held that a bar during any recess requires automatic reversal, but cast its rule as a means of protecting the “right to the effective assistance of counsel." United States v. Conway, 632 F.2d 641, 644-45 (5th Cir.1980). Similarly, the District of Columbia Circuit and the Second Circuit have apparently assumed that the right involved was the right to effective assistance of counsel. Mudd v.

United States, 798 F.2d 1509, 1513 (D.C.Cir.1986); United States v. Leighton, 386 F.2d 822, 823 (2d Cir.1967), cert. denied, 390 U.S. 1025, 88 S.Ct. 1412, 20 L.Ed.2d 282 (1968). . Perry was anything but a passive witness on cross-examination. He was able to resist attempts by the prosecution to color his story, and he was able to tell his own version of events. For example, he was asked about his familiarity with the victim’s apartment: Q. All right. So you don’t remember then going out to this apartment complex, do you? A. I don’t even know where these complexes is as I have stated. Q. Well, that’s where Mrs.

Heimberger lived. That’s where she was living on March the 5th. Do you remember going out there in your car and locking up your car somewhere in this area? A. How many times I got to tell you? I don't know where this complex is. I don’t know where the complex is. Q. Do you remember, sir, going out there and getting in the car with Mrs. Heimberger? Do you remember that? A. I refuse to answer that. I have already stated that I have not — I have no knowledge of where these complexes is if that’s the only question you have to ask me. He corrected the prosecution when questioned about his gun: Q.

You put [the gun] in your car in your possession, right? A. At what time are you talking about? When? Q. Well, sir, when you took it in and cleaned it the first time before you went over to Bumpsie’s, you intentionally put it in your vehicle, didn’t you? A. No, I didn’t. Q. You did not put it in your vehicle? A. No, I didn’t. Q. I thought I heard you say you put it under the floorboard, the floormat? A. I did under the floormat of my mother-in-law’s car. He told his own version of events when questioned about his fingerprint: Q. Can you tell me, sir, how your fingerprint got on Mrs. Heimberger’s automobile? A.

Oh, well, as I was searching her vehicle. Q. How did you come to get in the particular location that it was found if you were searching her vehicle? A. What you mean in the particular location? Q. You were on the inside searching the car, weren’t you? A. I was sitting in the front seat with my left foot in it. Q. Sitting in the front seat. Well, were you aware that the fingerprint was taken on the outside of the window and not on the inside? A. Yes, I am aware of that. Q. So you must have put it on there before you got in, is that what you’re saying? A.

No, my fingerprints could have been put on the window after I grabbed on to the window and the door when Duke-Dog was driving off. Perry also took advantage of his right to explain his answers on cross-examination. For example, when shown his time card, which indicated that he had gone to work the day after the murder, he testified as follows: Q. That’s your time card where you went to work that day, wasn’t it? A. It has on here Friday P.M. 12:09 but it also had in handwriting 3-6-81 that anybody could put down. .

Chief Judge Winter’s dissent contends that the application of a prejudice analysis in this case is likely to lead to interference with the attorney-client relationship. This case raises no such danger, however, because the clear absence of prejudice has obviated the need for any inquiry into that relationship. We therefore see no need to address this concern in this case, and we do not address it. We note, however, that there may be cases which do raise this concern. Requiring a defendant to show prejudice in those cases might require him to reveal privileged confidences. See Redman v.

Bailey, 657 F.2d 21, 24 (3d Cir.1981), cert. denied, 454 U.S. 1153, 102 S.Ct. 1024, 71 L.Ed.2d 310 (1982). The prejudice inquiry under Strickland and Cronic may pose a similar dilemma. In those cases the Supreme Court placed on the defendant the burden of showing that he had been prejudiced by the ineffective assistance of counsel, 466 U.S. 687, 104 S.Ct. at 2064; 466 U.S. 658, 104 S.Ct. at 2046. Strick land and Cronic did not, however, address the question of burden allocation where judicial error, rather than the shortcomings of defense counsel, is at issue.

The absence of prejudice under any allocation makes it unnecessary for us to address that question here.