Keith Miller v. Walter E. Martin, 481 F.3d 468 (7th Cir. 2007). · Go Syfert
Keith Miller v. Walter E. Martin, 481 F.3d 468 (7th Cir. 2007). Cases Citing This Book View Copy Cite
61 citation events (61 in the last 25 years) across 19 distinct courts.
Treatment trajectory · 2007 → 2026 · click a year to view as-of
2007 2016 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) State v. Z.M.
Kan. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
in the wake of bell, courts have rarely applied cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.
discussed Cited as authority (rule) People v. Macon
Ill. App. Ct. · 2026 · confidence medium
The Seventh Circuit Court of Appeals has similarly noted that courts rarely apply Cronic, and has emphasized that “only non-representation, not poor representation, triggers a presumption of prejudice.” People v. Cherry, 2016 IL 118728 , ¶ 26 (quoting Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007)).
discussed Cited as authority (rule) State v. M. L. H.
Wis. Ct. App. · 2026 · confidence medium
“In the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007). 24 Nos. 2025AP2250-CR 2025AP2251-CR ¶60 Mary has not established that her trial attorney completely failed to test the State’s case at the involuntary medication hearing, such that Cronic, rather than Strickland, applies to her ineffective assistance claims.
discussed Cited as authority (rule) State v. M. L. H.
Wis. Ct. App. · 2026 · confidence medium
“In the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007). 24 Nos. 2025AP2250-CR 2025AP2251-CR ¶60 Mary has not established that her trial attorney completely failed to test the State’s case at the involuntary medication hearing, such that Cronic, rather than Strickland, applies to her ineffective assistance claims.
cited Cited as authority (rule) People v. Lagrone
Ill. App. Ct. · 2025 · confidence medium
Id. (citing Miller v. - 26 - 2025 IL App (2d) 230543 Martin, 481 F.3d 468, 473 (7th Cir. 2007)).
discussed Cited as authority (rule) People v. McKinney CA3
Cal. Ct. App. · 2025 · confidence medium
(See also Miller v. Martin (7th Cir. 2007) 481 F.3d 468, 473 (per curiam) [granting habeas relief under Cronic based on defense counsel’s “own admission” in postconviction proceedings that he failed to conduct any research, “offer a shred of mitigating evidence, object to (or consult with his client about) errors in the [presentence report], or even lobby for a sentence lower than the one urged by the State”]; Tucker v. Day (5th Cir. 1992) 969 F.2d 155, 159 [granting habeas relief under Cronic where defense counsel, who stated he was “ ‘just standing in’ ” at resentencing hea…
discussed Cited as authority (rule) State v. Carrillo
Kan. Ct. App. · 2024 · confidence medium
Bell, 535 U.S. at 697 ; Z.M., 319 Kan. at 316 ("'In the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.'") (quoting Miller v. Martin, 481 F.3d 468, 473 [7th Cir. 2007]).
discussed Cited as authority (rule) Black v. Warden
N.D. Ind. · 2024 · confidence medium
“In the wake of [Bell v. Cone, 535 U.S. 685 (2002)], courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007).
discussed Cited as authority (rule) Brown v. Warden
N.D. Ind. · 2024 · confidence medium
“In the wake of [Bell v. Cone, 535 U.S. 685 (2002)], courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007).
cited Cited as authority (rule) Mitchell v. United States
N.D. Ind. · 2024 · confidence medium
But the Cronic exception is “exceedingly narrow,” and applies “only to non-representation, not poor representation.” Miller v. Martin, 481 F.3d 468, 472-73 (7th Cir. 2007).
discussed Cited as authority (rule) People v. Zamora-Canada CA3
Cal. Ct. App. · 2022 · confidence medium
(Miller v. Martin (7th Cir. 2007) 481 F.3d 468, 473 (per curiam) [applying exception where counsel essentially said nothing throughout sentencing hearing]; Patrasso v. Nelson (7th Cir. 1997) 121 F.3d 297, 303-305 [constructive denial where counsel performed no investigation before sentencing and made no effort to contradict the prosecution’s case or obtain mitigated punishment]; Tucker v. Day (5th Cir. 1992) 969 F.2d 155, 159 [constructive denial where counsel remained silent throughout resentencing hearing]; Harding v. Davis (11th Cir. 1989) 878 F.2d 1341, 1345 [prejudice presumed where def…
cited Cited as authority (rule) People v. Boots
Ill. App. Ct. · 2022 · confidence medium
Id. (citing Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007)).
discussed Cited as authority (rule) Welsh v. Dennison (2×) also: Cited "see, e.g."
N.D. Ill. · 2021 · confidence medium
Cronic is an “exceedingly narrow” exception to Strickland which affords a presumption of prejudice in “three exceptional circumstances: when there is a ‘complete denial of counsel,’ where ‘counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing,’ or where outside circumstances prevent effectiveness.” Smith v. Brown, 764 F.3d 790, 796 (7th Cir. 2014) (quoting Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007)); Morgan v. Calderone, 355 Fed.
cited Cited as authority (rule) Roderick Lewis v. Dushan Zatecky
7th Cir. · 2021 · confidence medium
Miller v. Mar‐ tin, 481 F.3d 468, 473 (7th Cir. 2007) (post‐AEDPA); Patrasso v. Nelson, 121 F.3d 297, 305 (7th Cir. 1997) (pre‐AEDPA).
discussed Cited as authority (rule) Viren v. United States (2×)
C.D. Ill. · 2021 · confidence medium
For purposes of distinguishing between the rule of Strickland and that of Cronic, this difference is not of degree but of kind.”); id. at 697–98 (“The aspects of counsel’s performance challenged by respondent—the failure to adduce mitigating evidence and the waiver of closing argument—are plainly of the same ilk as other specific attorney errors we have held subject to Strickland’s performance and prejudice components.”); Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007) (“[C]ourts have rarely applied Cronic, emphasizing that only non-representation, not poor representation…
discussed Cited as authority (rule) Dodd v. Dittman (2×)
E.D. Wis. · 2020 · confidence medium
And, in Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007), the court noted that “[i]n the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Because I conclude that counsel’s performance here was not a complete abdication of the advocate’s role, Strickland governs rather than Cronic.
discussed Cited as authority (rule) City of Libby v. S. Hubbard
Mont. · 2018 · confidence medium
“In the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007), opinion amended by 223 Fed.
discussed Cited as authority (rule) Donald Phillips v. Randy White
6th Cir. · 2017 · confidence medium
As one court has summarized, “non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. 2007) (per curiam) (finding Cronic prejudice where counsel did nothing at sentencing except move for a new trial). 2.
discussed Cited as authority (rule) People v. Cherry
Ill. · 2016 · confidence medium
Along the same lines, the Seventh Circuit Court of Appeals has noted that “courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. -8- Martin, 481 F.3d 468, 473 (7th Cir. 2007).
discussed Cited as authority (rule) People v. Cherry
Ill. · 2016 · confidence medium
Along the same lines, the Seventh Circuit Court of Appeals has noted that “courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice.” Miller v. Martin, 481 F.3d 468, 473 (7th Cir. - 11 - 2007).
cited Cited as authority (rule) State Of Washington v. Robert A. Baker
Wash. Ct. App. · 2015 · confidence medium
Miller v. Martin. 481 F.3d 468, 472 (7th Cir. 2007) (quoting Cronic. 466 U.S. at 659-61 ); In re Pers.
discussed Cited as authority (rule) United States v. Dwight Gooding
4th Cir. · 2014 · confidence medium
In those cases, the Government presented evidence that defense counsel neglected to challenge. 7 See Miller v. Martin, 481 F.3d 468, 473 (7th Cir.2007) (per curiam) (finding a constructive denial of counsel at a sentencing hearing in which the defense lawyer, by his own admission, “did not offer a shred of mitigating evidence,” object to errors in the PSR, or “even lobby for a sentence lower than the one urged by the State”); Patrasso v. Nelson, 121 F.3d 297, 303-05 (7th Cir.1997) (holding that defense counsel was constitutionally ineffective for failing to rebut adverse evidence at th…
discussed Cited as authority (rule) Roy Smith v. Richard Brown (2×)
7th Cir. · 2014 · confidence medium
We have observed that the “Cronic exception is exceedingly narrow.” Miller v. Martin, 481 F.3d 468, 472 (7th Cir.2007), *797 and the Supreme Court has reiterated that “the attorney’s failure to test the prosecutor’s case ... must be complete.” Bell v. Cone, 535 U.S. 685, 697 , 122 S.Ct. 1848 , 152 L.Ed.2d 914 (2002).
cited Cited as authority (rule) United States ex rel. Etherly v. Davis
N.D. Ill. · 2011 · confidence medium
Etherly’s reliance on Malone v. Walls, 538 F.3d 744, 761-62 (7th Cir.2008) and Miller v. Martin, 481 F.3d 468, 473 (7th Cir.2007), is ill placed.
cited Cited as authority (rule) United States v. Isom
7th Cir. · 2011 · confidence medium
See Girts v. Yanai, 501 F.3d 743, 757-58 (6th Cir.2007); Miller v. Martin, 481 F.3d 468, 473 (7th Cir.2007).
discussed Cited as authority (rule) Amerson, Cleophus v. Farrey, Catherine J.
7th Cir. · 2007 · confidence medium
“We review the district court’s denial of a habeas corpus petition de novo.” Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007) (per curium) (citing Montgomery v. Uchtman, 426 F.3d 905, 909-10 (7th Cir. 2005)). “[A] federal court may issue a writ of habeas corpus only if the state court reached a decision that was either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.” Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir. 2007) (citing 28 U.S.C. § 2254 (d)(1); Williams v. Taylor, 529 U.S. 362, 404-06 (2000)).
discussed Cited as authority (rule) Amerson v. Farrey
7th Cir. · 2007 · confidence medium
“We review the district court’s denial of a habeas corpus petition de novo.” Miller v. Martin, 481 F.3d 468, 472 (7th Cir.2007) (per curiam) (citing Montgomery v. Uchtman, 426 F.3d 905, 909-10 (7th Cir.2005)). “[A] federal court may issue a writ of habeas corpus only if the state court reached a decision that was either contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court.” Raygoza v. Hulick, 474 F.3d 958, 963 (7th Cir.2007) (citing 28 U.S.C. § 2254 (d)(1); Williams v. Taylor, 529 U.S. 362, 404-06 , 120 S.Ct. 1495 , 146 L…
cited Cited "see" Roderick Vandrell Lewis v. State of Indiana
Ind. Ct. App. · 2018 · signal: see · confidence high
See Miller v. Martin , 481 F.3d 468 , 472 (7th Cir. 2007) ; Patrasso v. Nelson , 121 F.3d 297 , 303-05 (7th Cir. 1997).
discussed Cited "see" Dorsey, Henry Demond
Tex. App. · 2015 · signal: see · confidence high
See case Miller v. Martin, 481 F3d 468, 473 (7th Cir. 2007) (Counsel's choice not to present any mitigating factors or object ion and to remain silent at sentencing hearing for no apparent reason warranted presumption of prejudice).
discussed Cited "see" State v. Sharkey
Kan. · 2014 · signal: see · confidence high
See Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007) (after attorney stood mute at sentencing hearing, held “effective abandonment of a defendant at sentencing calls for the application of Cronic”).
cited Cited "see, e.g." United States v. Woods
N.D. Ill. · 2019 · signal: see also · confidence medium
United States v. Cronic, 466 U.S. 648, 659 , 104 S.Ct. 2039 , 80 L.Ed.2d 657 (1984); see also Miller v. Martin, 481 F.3d 468, 472 (7th Cir. 2007).
discussed Cited "see, e.g." McDowell v. Kingston
7th Cir. · 2007 · signal: see also · confidence medium
The Court defined three exceptions to Strickland where it is appropriate for a court to presume prejudice: (1) where there is a “complete denial of counsel” or denial at a “critical stage” of the litigation; (2) where counsel “entirely fails to subject *762 the prosecution’s case to meaningful adversarial testing”; and (3) where “although counsel is available to assist the accused during trial, the likelihood that any lawyer, even a fully competent one, could provide effective assistance is [very] small.” 466 U.S. at 659-60, 104 S.Ct. 2039 ; see also Miller v. Martin, 481 F.3…
Retrieving the full opinion text from the archive…
Keith MILLER, Petitioner-Appellant,
v.
Walter E. MARTIN, Respondent-Appellee
05-3978.
Court of Appeals for the Seventh Circuit.
Mar 19, 2007.
481 F.3d 468
Maureen L. Rurka (argued), Winston & Strawn, Chicago, IL, for Petitioner-Appellant., Steve Carter, Julie A. Hoffman (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
Per Curiam, Ripple, Rovner, Williams.
Cited by 31 opinions  |  Published
PER CURIAM.

Indiana prisoner Keith Miller, who is 71 years old, is serving a 48-year sentence for his convictions on 18 counts of state securities violations. Miller, who was convicted in absentia after failing to appear for trial, attended his sentencing hearing but remained silent throughout the proceedings on the advice of his attorney, Kevin McShane. McShane likewise refused to participate. After his convictions and sentence were upheld on appeal, Miller successfully petitioned for postconviction relief and was granted resentencing, but the Indiana Court of Appeals reversed that decision. Miller then filed a petition for a writ of habeas corpus in federal court, which was denied. On appeal Miller argues that the state appellate court unreasonably concluded that McShane’s performance at sentencing was not deficient or prejudicial, and he further contends that United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), rather than Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), governs his claim. We conclude that Cronic is indeed the proper framework, but that, regardless of which standard we apply, Miller meets his burden. Accordingly, for the reasons set forth in the following opinion, we reverse the district court’s decision and remand with instructions to grant the writ of habeas corpus.

I.

The State of Indiana charged Miller with six counts each of selling unregistered securities, failing to register as an agent, and securities fraud, after he and a business associate sold shares in a company they formed without making necessary disclosures to the investors. Miller did not appear for the trial scheduled for November 14, 1988. After satisfying himself that Miller had received notice of the trial date but deliberately absented himself, the trial judge decided to try Miller in absentia. The jury found Miller guilty on all counts.

Miller was apprehended shortly after the trial. He retained new counsel, McShane, and appeared for his sentencing hearing on June 9, 1989. According to Miller’s later testimony, at the time 'of the hearing, he had not yet seen a copy of his presentence investigation report (“PSR”) or had the opportunity to review it with McShane. McShane was certain that the appellate court would order a new trial because, he believed, the trial in absentia was “a nullity.” He therefore told Miller not to speak at all during the sentencing hearing, lest he reveal that he had notice of his trial date. For his own part, McShane also remained mute, except to tell the sentencing court at the outset of the hearing that Miller “does not recognize” the validity of the trial or the “authority of the Court to proceed to disposition at this time.” The State argued for double the presumptive sentence of four years’ imprisonment on each count based on aggravating factors. McShane, as he testified during the state postconviction hearing, “did not make any sort of presentation or resist the State’s presentation.” The court imposed a sentence of eight years on each count of conviction, with the sentences on six counts to run consecutively and the remaining 12 to run concurrently-

McShane’s prediction that Miller’s convictions would surely be overturned on appeal proved wrong. The appellate court did, however, order a limited remand for a hearing on whether Miller had knowingly absented himself from trial (a necessary precondition to a trial in absentia). On[*471] remand, the trial court conducted a hearing and again concluded that Miller had knowingly failed to appear. The appellate court upheld this finding and therefore rejected Miller’s argument that the trial in absentia was improper. Miller v. State, 593 N.E.2d 1247 (Ind.Ct.App.1992). The court affirmed the convictions and sentence, and shortly thereafter the Indiana Supreme Court denied Miller’s petition for discretionary review.

On May 8, 1995, Miller filed a petition for postconviction relief in which he advanced nine grounds for relief, including the argument that McShane provided ineffective assistance of counsel at sentencing. More than six years later — the reasons for this unconscionable delay are not clear from the record — a hearing was finally held, and both Miller and McShane testified. Miller testified that his PSR contained numerous errors, most relating to the facts of his offense, that went uncorrected at the sentencing hearing. [1] When asked if he made any presentation to the sentencing court, McShane stated, “None whatsoever, other than to advise the Court that we would not be making a presentation.” He explained that at the time of sentencing, it was his “firm opinion” that a new trial would be ordered on appeal, and he did not want Miller to be questioned about whether he had actual notice of his trial date. When asked specifically if he had cross-examined witnesses, commented on exhibits, or otherwise participated, he stated that he “did nothing.” Ultimately, the court concluded that Miller had to be resenteneed because he was denied the effective assistance of counsel at his sentencing hearing. Finding that McShane “did not present any mitigating evidence,” did not rebut any evidence presented by the State, and did not correct “material factual errors” in the PSR, the court concluded that McShane’s performance rendered the proceedings “fundamentally unfair.”

The State appealed, and the Indiana Court of Appeals reversed. State v. Miller, 771 N.E.2d 1284 (Ind.Ct.App.2002). Applying Strickland, the appellate court noted that McShane’s choice to stand mute, while “unorthodox,” was a clear-cut example of a “purely strategic decision” that was not unreasonable based on prevailing professional norms. See id. at 1288-89. The court also concluded that Miller could not establish that McShane’s decision prejudiced him. Focusing only on Miller’s claim that errors in the PSR went unchallenged, the court concluded that Miller had not established that correcting those errors would have changed the sentence. Id. at 1289. The court reasoned that the length of Miller’s sentence was due almost entirely to his criminal history, which no amount of participation by McShane could have changed. Id.

After the Indiana Supreme Court denied transfer, Miller filed a petition under 28 U.S.C. § 2254 in federal district court. Miller raised several claims, but the only one relevant to this appeal is his argument that the Indiana Court of Appeals acted contrary to clearly established law in concluding that counsel provided constitutionally sufficient representation at sentencing.[*472] The district court concluded that the state appellate court’s decision was reasonable and denied Miller’s petition and his subsequent request for a certificate of appeala-bility. Miller filed a notice of appeal, and we granted a certifícate of appealability on the ineffective-assistance claim.

II.

We review the district court’s denial of a habeas corpus petition de novo. See Montgomery v. Uchtman, 426 F.3d 905, 909-10 (7th Cir.2005). Under the An-titerrorism and Effective Death Penalty Act of 1996, a federal court may not grant a writ of habeas corpus on any claim adjudicated on its merits in state court unless the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).

Miller first argues that the state appellate court improperly applied Strickland rather than Cronic to his ineffective-assistance claim. Counsel’s failure to participate in the sentencing hearing was so complete that, according to Miller, prejudice should have been presumed. If Miller is correct that the state appellate court applied the wrong legal standard to his ineffective-assistance claim, then the resulting decision is contrary to Supreme Court precedent. See Van Patten v. Deppisch, 434 F.3d 1038, 1043 (7th Cir.2006), vacated on other grounds sub nom. Schmidt v. Van Patten, — U.S. -, 127 S.Ct. 1120, 166 L.Ed.2d 888 (2007); Patrasso v. Nelson, 121 F.3d 297, 305 (7th Cir.1997).

Some uncertainty exists with regard to the appropriate standard for evaluating claims of ineffective assistance of counsel when counsel’s efforts appear particularly lacking. Ordinarily, ineffective-assistance claims are governed by the two-part inquiry articulated in Strickland. To prevail, the defendant must demonstrate that counsel’s performance was so deficient that it fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Montgomery, 426 F.3d at 913. He must also establish that he was prejudiced by the deficient performance, i.e., that but for counsel’s errors there is a reasonable probability that the outcome would have been different. See Strickland, 466 U.S. at 694, 104 S.Ct. 2052. However, in certain types of cases, prejudice is “so likely that case-by-case inquiry into prejudice is not worth the cost,” and so it is presumed. Id. at 692, 104 S.Ct. 2052. This occurs when (1) the defendant “is denied 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 represent a client in circumstances under which no lawyer could provide effective assistance. Cronic, 466 U.S. at 659-61, 104 S.Ct. 2039.

Miller argues that the second Cronic exception applies to his case. Indeed, we have held that the effective abandonment of a defendant at sentencing calls for the application of Cronic. Patrasso, 121 F.3d at 304. In that case, the lawyer for a defendant convicted of aggravated battery and attempted murder did not respond to the State’s presentation of aggravating factors at sentencing. We held that the attorney, who “entirely failed to represent his client,” did not act in an objectively reasonable manner because he was obligated to try to mitigate his client’s punishment. See id. at 303-04. The performance was “so lacking” that we presumed it to have prejudiced the defendant. See id. at 304.

Our analysis cannot end with Patrasso, however, because intervening cases have emphasized that the second Cronic exception is “exceedingly narrow.” See United [*473] States v. Theodore, 468 F.3d 52, 56 (1st Cir.2006). For it to apply, “the attorney’s failure must be complete.” Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002). In Bell, another case addressing an attorney’s responsibilities at sentencing, the petitioner faulted counsel for failing to adduce any mitigating evidence or make a closing argument at his sentencing hearing. The Court declined to apply Cronic, concluding that the errors were “of the same ilk as other attorney errors we have held subject to Strickland’s performance and prejudice components.” Id. at 697-98, 122 S.Ct. 1843. In the wake of Bell, courts have rarely applied Cronic, emphasizing that only non-representation, not poor representation, triggers a presumption of prejudice. See Theodore, 468 F.3d at 57 (explaining that Cronic did not apply where attorney’s errors were not “tantamount to non-representation”); United States v. White, 341 F.3d 673, 679 (8th Cir.2003) (Cronic did not apply unless “counsel completely failed to participate in the proceedings”); see also Jackson v. Johnson, 150 F.3d 520, 525 (5th Cir.1998) (Cronic applies when counsel was “not merely incompetent but inert”).

In this case, McShane’s advocacy at sentencing was so non-existent as to fall within even a very narrow exception. Other than orally moving for a new trial and explaining several times that neither he nor Miller would participate in the proceedings, McShane said nothing throughout the sentencing hearing. By his own admission, he did not offer a shred of mitigating evidence, object to (or consult with his client about) errors in the PSR, or even lobby for a sentence lower than the one urged by the State. In his own words, he “did nothing.” McShane’s performance was therefore even more lacking than that of the attorney in Bell, who made a brief opening statement asking for mercy, cross-examined a witness for the State, highlighted his client’s distinguished military service, and objected to the introduction of photographs of the victims. Bell, 535 U.S. at 708, 122 S.Ct. 1843; see Theodore, 468 F.3d at 56-57.

Although the State insists that McShane’s failure to participate was “strategic” and all but unreviewable, no dis-cernable strategy was at work here. McShane explained why he instructed Miller to remain silent — to prevent the judge from learning that Miller was aware of his trial date — but McShane never explained his own silence. He gave no indication that he had reason to believe the court would force him to testify against his own client by revealing what Miller knew. In any event, McShane could have declined to discuss the trial but still commented on issues relating to the sentence. To hold that “strategy” justified McShane’s decision would be to make a mockery of the word. If McShane feared that making a presentation at sentencing could somehow prejudice the appeal — which is not the reason he gave the sentencing court for his decision — he was wrong, see, e.g., McCaffrey v. Indiana, 577 N.E.2d 617 (Ind.App.1991), but, more critically, he does not appear to have conducted any research or consulted the court about his concerns. We fail to see any way that his silence could have improved his client’s position at sentencing. We need not speculate, however, because as we have already stated, McShane never offered a strategic justification for his own silence. Thus, the Indiana Court of Appeals unreasonably concluded that strategy justified McShane’s refusal to participate. McShane’s total dereliction at sentencing “invites application of Cronic rather than Strickland,” and prejudice may be presumed. Patrasso, 121 F.3d at 304.

[*474] We note, however, that the requirement of proving prejudice would present no impediment to Miller’s case, as he satisfies both prongs of the Strickland test. We need not belabor the point with respect to McShane’s deficient performance, and as Miller contends, the Indiana Court of Appeals also unreasonably concluded that McShane’s silence was not prejudicial. Focusing almost exclusively on the errors in the PSR that McShane failed to point out, the court concluded that, because of Miller’s criminal history, the sentence would have been no different had the errors been brought to the court’s attention. This conclusion is strange because some of the errors Miller has identified in his PSR concern his criminal record. Moreover, the court did not address any of the other ways in which Miller argued that McShane’s silence prejudiced him. Miller points out, for example, that the State’s presentation of aggravating factors went wholly unchallenged. And McShane did not present, or even research, any mitigating factors, such as Miller’s assertion that he had already paid restitution to some victims. Before imposing the sentence, the trial judge stated specifically that he “[could not] find any mitigating factors,” which leads us to conclude that the lopsidedness of the presentations was as evident at the time as it appears from the cold record. McShane knew that the court was contemplating the maximum sentence, but he advanced no argument to challenge the appropriateness of such a sentence for a non-violent offender who defrauded investors of an amount less than $30,000. Nor did he see fit to argue against the imposition of consecutive sentences. Under these circumstances, Miller could certainly show that there is a “reasonable probability” that the outcome of the proceedings was affected by McShane’s performance.

III.

The Indiana Court of Appeals unreasonably applied federal law in concluding that McShane’s decision to stand mute at Miller’s sentencing hearing did not amount to ineffective assistance of counsel. McShane’s total abandonment of his client warrants the application of Cronic, and we presume that the non-participation prejudiced Miller’s position at sentencing. Moreover, we would reach the same result even if we found it necessary for Miller to establish prejudice. Accordingly, we REVERSE the denial of Miller’s petition and REMAND the case to the district court with instructions to grant the writ of habe-as corpus to the extent that Miller must be resentenced with the assistance of counsel.

1

. For example, Miller disputes the statements in his PSR that he had 13 prior arrests; that he had been involved in similar business deals in Wisconsin, Nevada, and California; that he sold unregistered securities to "at least fifteen” Indiana residents; and that he was involved with a corporation named "Lion’s Head, Inc.,” which was subject to a cease- and-desist order from the Indiana Securities Division. His testimony at the postconviction hearing is the only evidence in the record that the PSR contained errors. Although the State argues that Miller’s self-serving statements do not establish that the PSR contained any errors, it points to nothing in the record to contradict that testimony.