If an attorney's deficiency is grave enough, criminal defendants do not need to demonstrate prejudice to prove ineffective-assistance-of-counsel

QUESTIONS PRESENTED 1. If an attorney’s deficiency is grave enough, criminal defendants do not need to demonstrate prejudice to prove ineffective assistance of counsel. In these cases, courts presume prejudice. One such deficiency is a complete denial of counsel at a critical stage. But circuit courts disagree on what makes a denial “complete.” Some circuits hold that any act, no matter how perfunctory, renders a denial of counsel incomplete. Others recognize that denial can be “complete” even if counsel did something at some point during a critical phase. Here, the Sixth Circuit held that Johnny Taylor did not suffer a complete denial of counsel at the critical pre-trial investigatory phase even though his counsel did no investigation and met with Taylor once for 10 minutes the night before trial, despite having been appointed five months earlier. The Sixth Circuit reasoned that a single reference to a discovery request, the 10-minute meeting, and counsel’s presence at the preliminary examination meant Taylor did not suffer a “complete” denial of counsel. Is it clearly established that a denial of counsel is a presumption of prejudice—when counsel performs only perfunctory, negligible acts during a critical period? 2. The state court denied Taylor’s claim because it reasoned Taylor did not prove the factual predicate of his claim. However, that same court denied Taylor’s request to gather more evidence to prove his claim, even though he demonstrated a prima facie basis for ineffective assistance of counsel. The state court created a Catch-22 based on its unreasonable application of clearly established law. Can a federal court order an evidentiary hearing as a form of habeas relief in and of itself? i