In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-3125

C ARMELO Q UINTANA,
                                                Petitioner-Appellant,
                                  v.

N EDRA C HANDLER, Warden,
                                                Respondent-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
              No. 08 C 5629—Edmond E. Chang, Judge.



        A RGUED M AY 22, 2013—D ECIDED JULY 23, 2013




 Before F LAUM, R OVNER, and S YKES, Circuit Judges.
  F LAUM, Circuit Judge. On a cold night in the winter of
1999, Carmelo Quintana and his two friends lured a
woman into a van. Quintana restrained the victim, while
his friend sexually assaulted her. Eventually, the victim
escaped by jumping nude out of the moving van. Quintana
was arrested and charged with kidnapping and sexual
assault. After serving a year in prison awaiting trial, the
state offered Quintana a plea deal, somewhat surprising
2                                             No. 12-3125

in its leniency, of a four-year sentence on the kidnapping
charge and a four-year sentence on the sexual assault
charge to run concurrently at 50% good time, allowing
Quintana to plead guilty and serve one more year in
prison before being released. Quintana declined the
deal, opting to go to trial and face a minimum of two six-
year consecutive sentences. Following his conviction,
the district court sentenced Quintana to two consecutive
terms in prison: one lasting six years and the other
lasting twenty-one years. Thirteen years into his sen-
tence, Quintana asks this court to grant him a writ of
habeas corpus, claiming his trial counsel failed to ade-
quately inform him of the consequences of his plea. For
the reasons set forth below, we deny the writ.


                     I. Background
A. Factual Background
  In the winter of 1999, Quintana was a passenger in a
van driven by Dagoberto Alvarado. Jorge Navarette, also
a passenger, pulled a woman into the van, took her
clothes off, and tried to rape her, while Quintana held
her down, covered her mouth, and slapped her buttocks.
The woman tried to escape but was pulled back in. She
then offered to get on top of Navarette to improve her
chances of escaping, which allowed her to jump out of
the moving van naked and screaming. Police detained
Navarette and Quintana, and Alvarado apparently fled
to Mexico. Quintana confessed to committing the crime.
  After being charged, Quintana retained a lawyer with
limited experience—prior to representing Quintana,
No. 12-3125                                              3

Attorney Dennis Kellogg had handled only three
felony trials. Aside from their initial meeting, Quintana
met with Kellogg only at court appearances and never
apart from his co-defendant. Quintana’s conversations
with his lawyer were short and translated by his co-defen-
dant’s counsel, other inmates, and court interpreters.
  Before his trial, the state offered Quintana a plea deal
requiring him to serve two concurrent four-year terms of
imprisonment at 50%. Because Quintana had already
served a year in prison, the deal would have required
him to serve only one additional year. He declined the
state’s offer, however, and according to Kellogg, insisted
he was innocent. Quintana claimed Alvarado was the
perpetrator. Evidence also suggests that Kellogg appar-
ently misunderstood Quintana’s potential sentence. He
thought Quintana was facing two six-year concurrent
minimum sentences at 50%, but in actuality, the charged
crimes presented two six-year minimum consecutive
sentences to be served at 85%.
  Quintana proceeded to a simultaneous, but separate,
bench trial with Navarette. At trial, the two defendants
presented a story of consensual sex between Alvarado
and the victim. The trial court rejected this argu-
ment as incredible and ultimately sentenced Quintana
to a twenty-one-year term for sexual assault and a six-year
term for kidnapping to be served consecutively at
85% for good time.
4                                              No. 12-3125

B. Procedural Background
  After an unsuccessful direct appeal, Quintana pursued
state post-conviction relief claiming, among other things,
that Kellogg’s performance during the plea stage was
ineffective. He submitted two affidavits, one that he
signed and one signed by Kellogg. Quintana’s affidavit
stated that when he rejected the plea offer, he believed
that his sentences would run concurrently, that he
would only have to serve 50% of the time, and that
Kellogg had not advised him otherwise. Quintana
claimed he would not have proceeded to trial had he
been properly informed on the length and consecutive
nature of the sentence he was facing. He also stated that
he did not understand the law of guilt by accountability
or that his statement would be introduced against him
at trial. Kellogg’s affidavit confirmed some of Quintana’s
allegations. He admitted he did not know the sentences
would be served consecutively. He noted that there
was “some discussion” on sentences not being served
at 50% and that he characterized the offer as “reasonable,”
but explained that Quintana insisted he was innocent
because Alvarado was the perpetrator.
  The trial court denied Quintana’s petition and the
state appellate court affirmed, holding that Quintana
had failed to establish that any deficiency on Kellogg’s
behalf resulted in prejudice. It found Quintana’s
affidavits self-servingly unreliable and uncorroborated
especially in light of Kellogg’s statements that there was
“some talk” that sentences were no longer served at 50%.
The Illinois Supreme Court summarily affirmed that
decision.
No. 12-3125                                              5

  After exhausting his state remedies, Quintana peti-
tioned for a writ of habeas corpus in federal court. The
district court held an evidentiary hearing and agreed
with Quintana that Kellogg’s performance was inade-
quate insofar as he failed to inform Quintana that
his sentences would be served consecutively at 85%
rather than concurrently at 50%. The court presumed
that the state court had rejected this performance argu-
ment and, even under the Antiterrorism and Effective
Death Penalty Act’s (“AEDPA”) highly deferential
review, concluded that there was no reasonable basis
for that apparent rejection. However, the court found
that Quintana had failed to carry his burden of
proving that Kellogg did not inform him of Illinois ac-
countability law. On the question of prejudice, the
district court rejected Quintana’s claim. It first gave
deference to the state court’s decision under AEDPA
and limited itself to the record before the state court.
On the basis of that record, it held that the state court’s
decision was reasonable. The court then concluded that
even with the benefit of the evidence presented at the
evidentiary hearing, Quintana was not prejudiced be-
cause he would have declined the plea offer. The evi-
dentiary hearing established that Quintana had insisted
he was innocent, which the court reasoned would have
influenced him to proceed to trial.


                     II. Discussion
  This court will issue a writ of habeas corpus only if
a petitioner’s custody is “in violation of the Constitution
6                                                 No. 12-3125

or laws or treaties of the United States.” 28 U.S.C. § 2254(a).
Where a state court adjudicated the petitioner’s claim
on the merits, we will grant the requested relief only
when the decision below is “contrary to, or involve[s] an
unreasonable application of, clearly established Federal
law, as determined by the Supreme Court” or when the
state court’s analysis “resulted in a decision that was
based on an unreasonable determination of the facts in
light of the evidence presented.” § 2254(d)(1)-(2). In
reviewing state court decisions entitled to deference
under § 2254(d), we are confined to evidence before the
state court when it rendered its decision. Cullen v.
Pinholster, 

, 1399 (2011). In such a case,
we cannot augment our reasonableness review with
evidence produced at a district court’s evidentiary hear-
ing. 

state court decision that stems from an
unreasonable application of federal law will usually
meet § 2254(a)’s requirement that the petitioner’s
custody be in “violation of the Constitution,” this court
will engage in de novo review after a finding of unreason-
ableness to answer the 2554(a) question as if the state
court never reached the merits. At that point, a federal
court can benefit from an evidentiary hearing under
§ 2254(e). See 

(Breyer, J., con-
curring); Mosley v. Atchison, 

, 853 (7th Cir.
2012). Where the district court held an evidentiary
hearing, we review its factual determinations for clear
error but its determination of legal questions—whether
the state court’s decision was unreasonable or
whether the petitioner’s custody violates the Constitu-
No. 12-3125                                                7

tion—de novo. Morales v. Johnson, 

, 599 (7th
Cir. 2011).
  On appeal, Quintana claims, as he did in the district
court and in the state court proceedings, that he
is entitled to habeas relief because his counsel was inef-
fective during the plea stage of his case. In order to
show ineffective assistance of counsel, Quintana must
prove that (1) his counsel’s performance prior to and
during the plea negotiations was objectively deficient
and (2) he was prejudiced by this performance because
a reasonable probability existed that he would have
accepted the plea but for his counsel’s deficient perfor-
mance. Lafler v. Cooper, 

, 1384, 1391 (2012);
Strickland v. Washington, 

, 687-88, 694 (1984).
   At the outset, we must determine whether to give
deference to the state court on the deficiency issue
under § 2254(d). Below, the district court held that defer-
ence was appropriate under Harrington v. Richter, 

(2011), and questioned whether there was a rea-
sonable basis for the state court’s decision. In Har-
rington, the Supreme Court held that where a state
court’s decision is unaccompanied by explanation in
the form of a summary dismissal, 2254(d) deference still
applies because the decision is nevertheless “on the
merits.” 

In such a case, the Court explained that
a petitioner must meet his burden “by showing there
was no reasonable basis for the state court to deny re-
lief.” 

when a state court
makes the basis for its decision clear, 2254(d) deference
applies only to those issues the state court explicitly
8                                              No. 12-3125

addressed. See Wiggins v. Smith, 

, 534 (2003)
(“In this case, our review is not circumscribed by a
state court conclusion with respect to prejudice, as
neither of the state courts below reached this prong of
the Strickland analysis.”).
  This court’s decision in Woolley v. Rednour is instruc-
tive on this point. 

, 421-22 (7th Cir. 2012).
In Woolley, the state court denied the petitioner post-
conviction relief on his ineffective assistance claim after
concluding that he was not prejudiced by any deficiency
on the part of his counsel. 

The appellate
court agreed that no prejudice occurred, leaving the
effectiveness prong untouched. 

In light of
those decisions, we declined the state’s request to
apply 2254(d) deference to the state court on the inef-
fectiveness prong, holding that Strickland claims are
divisible and Harrington applies only where a “state
court’s decision is unaccompanied by an explana-
tion”—that is, where the court summarily dismisses
the petition. 

(quoting 

). In Woolley, there was no “uncertainty regarding
the reasoning of the Illinois courts”—they explicitly
ruled on prejudice grounds—so “we review[ed] at-
torney performance de novo.” Id.; see also 

(Breyer, J., concurring) (“[I]f the state-
court rejection rested on only one of several related
federal grounds (e.g., that counsel’s assistance was not
‘inadequate’), [and] the federal court found that the
state court’s decision in respect to the ground it decided
violated [§ 2254(d)], an [evidentiary] hearing might
be needed to consider other related parts of the whole
No. 12-3125                                              9

constitutional claim (e.g., whether the counsel’s ‘inade-
quate’ assistance was also prejudicial).”).
  Thus, as a threshold matter, we conclude that the
district court erred in applying 2254(d) deference on the
question of Kellogg’s effectiveness. The Illinois courts
resolved Quintana’s ineffectiveness claim on the issue
of accountability liability by concluding Quintana was
not prejudiced and without reaching the ineffectiveness
question. Under Wiggins, we review this unaddressed
prong de novo. 

.


A. Counsel’s Performance Was Deficient, But Not
   With Respect to Accountability Liability
  Here, the state concedes that Attorney Kellogg per-
formed ineffectively by failing to warn Quintana that
(1) the sentences on the sexual assault and kidnapping
counts must run consecutively and (2) the good-time
credits on the sentences for those felonies must be
limited to 15% rather than 50%. However, the parties
dispute Kellogg’s effectiveness with respect to account-
ability liability—that is, whether Kellogg properly cor-
rected any misunderstanding from Quintana on his
potential criminal liability for the acts of others.
  In light of the evidence presented during the hearing
in the district court, Quintana cannot prove his attorney’s
performance was deficient on this point. Strickland’s
presumption of adequate counsel requires that we assume
Kellogg explained accountability liability to Quintana.

(“[A] court must indulge a
10                                               No. 12-3125

strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.”).
And because the petitioner bears the burden of proving
his habeas claim, Quintana must convince us that Kellogg
did not provide an adequate explanation. See 

affidavit he submitted to the state court,
Quintana stated:
     I did not understand the law of guilt by accountability.
     My attorney did not tell me, in discussing the four-
     year offer, that the State would introduce my signed
     statement, and if the court believed my statement,
     it would show my guilt by accountability.
Kellogg, on the other hand, explained:
     [D]uring the discussion of the four-year offer, I did
     not advise Mr. Quintana that his signed statement
     would be admitted into evidence at trial, and that
     it established his guilt of both aggravated criminal
     sexual assault and aggravated kidnapping by account-
     ability.
Deferring to the state court, the district court con-
cluded that these statements were sufficiently “fuzzy” to
allow a reasonable jurist to conclude that Kellogg may
have timely communicated the concept of accountability
liability before Quintana rejected his plea. But the
district court erred by deferring to the state court’s con-
clusions and by looking solely to the affidavits presented
in the state court. We must review this claim de novo,
and consider the evidence presented to the district court
during the evidentiary hearing. 

.
No. 12-3125                                                 11

   Looking to that evidence, it appears that there is a
strong possibility that Quintana understood accomplice
liability at the time of his plea. Although he had
difficulty remembering the decade-old conversations
with his client, Kellogg testified that he discussed the
concept of accountability liability with Quintana. He
stated that he used “simple” terms to explain to
Quintana “in some form or fashion that he [could] be held
accountable or criminally responsible for the acts of
others.” According to Kellogg, Quintana was “certainly. . .
aware . . . of the concept of accountability . . . before
trial.” Kellogg testified that he had his law clerk
research the doctrine of accountability, and his notes
from Quintana’s bail hearing also touch on the topic.
  The point at which Kellogg discussed accountability
with Quintana is less clear. Kellogg could not remember
one way or the other whether he mentioned it during
the plea conversation. To be sure, Kellogg’s representa-
tion would cause constitutional problems if Quintana
had rejected his plea on a misunderstanding that he
would not be guilty because he was not the principal
participant in the sexual assault. But Quintana bears
the burden of proving this misunderstanding. And with
Kellogg’s statements, he has at best created ambiguity.1


1
  Quintana also insisted that he and Navarette were
completely innocent—that neither of them had committed a
crime. He did not contend that Navarette raped the victim and
that he was innocent because he only restrained her. Testimony
to this effect would have raised questions about Quintana’s
                                                 (continued...)
12                                                  No. 12-3125

Cuppett v. Duckworth, 

, 1137 (7th Cir. 1993) (“In
the face of legal presumptions, ambiguities must be
construed against the party carrying the burden of proof.”).
  That leaves Quintana with his own assertions that he
never learned of the doctrine of accountability. However,
the district court, to which we defer on factual findings,
concluded that Quintana “came across as a witness
who was willing to emphatically lie so long as it helped
his cause.” In support of its conclusion, the district court
identified four inconsistencies from the evidentiary
hearing: (1) Quintana testified he told Kellogg that he
restrained the victim and slapped her buttocks, but
Kellogg’s testimony and his contemporaneous notes
show Quintana denied this conduct; (2) Quintana
testified that Navarette’s lawyer told him to claim
Alvarado had sex with the victim, but Lopez denied this
allegation and K ellogg’s intake notes (before
Quintana met Lopez) reflect Quintana blamed Alvarado;
(3) Quintana denied Kellogg told him he was charged with
kidnapping, but the district court believed Kellogg’s
statement to the contrary; and (4) Quintana denied
Kellogg rehearsed their direct examination, but Kellogg
and Navarette’s lawyer confirmed they did. We will
upset the district court’s factual findings only if they
are clearly erroneous, and credibility determinations are



1
  (...continued)
understanding of accountability liability and may have sug-
gested that Kellogg did not fulfill his responsibility to correct
Quintana’s misunderstanding.
No. 12-3125                                                 13

the most difficult of those to overturn. See Williams v.
Lemmon, 

, 540 (7th Cir. 2009). Here, we do
not find the district court’s findings to be clearly erroneous,
and without Quintana’s predominantly incredible testi-
mony, all that remains is an at-best ambiguous record
insufficient to find Kellogg’s performance deficient.
Accordingly we conclude that Quintana has not met
his burden of showing that Kellogg’s performance was
deficient with respect to accountability liability.


B. Quintana Cannot Show He Was Prejudiced
  Quintana is thus left with Kellogg’s failure to inform
him that his sentences would be served consecutively
at 85% rather than concurrently at 50%, and he must
show that he was prejudiced by that deficiency. The
state appellate court dismissed Quintana’s case on this
issue in a written opinion, so we apply 2254(d) deference.

. We must therefore determine
whether the state court unreasonably applied clearly
established federal law. 28 U.S.C. § 2254(d). Disagree-
ment with the state court’s conclusion on prejudice is not
enough for an unreasonableness determination—the
decision is reasonable if “ ‘fairminded jurists could dis-
agree’ on the correctness of the state court’s decision.”

(quoting Yarborough v.
Alvarado, 

, 664 (2004)). But if, on the basis of
the record before the state court, we were to determine
that the state court’s decision is unreasonable, we
would no longer defer to the state court and would
move on to conduct de novo review with the benefit
14                                            No. 12-3125

of evidentiary hearings under § 2254(e). 

.
  To establish prejudice, Quintana “must show that but
for the ineffective advice of counsel there is a rea-
sonable probability that the plea offer would have
been presented to the court (i.e., that the defendant
would have accepted the plea and the prosecution
would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its
terms, and that the conviction or sentence, or both,
under the offer’s terms would have been less severe
than under the judgment and sentence that in fact were
imposed.” 

.
  This case turns on whether Quintana would have
accepted the plea offer had he known the consequences
of a guilty verdict. In support of his contention,
Quintana again points to the affidavits submitted in the
state court. There, Quintana represented that “[i]f [he]
had known that the minimum sentence was not six
years of which 50% would be served, but 12 years of
which 85% would be served, [he] would have accepted
the four-year offer.” With respect to the plea, Kellogg
added only that he had characterized the state’s plea
offer as “reasonable” but did not specifically recom-
mend he take it because Quintana “insisted that he was
not directly involved and the actual perpetrator was
an individual who fled to Mexico.”
  On the basis of this evidence, the state court concluded
that Quintana had not shown he was prejudiced by
Kellogg’s deficiency, and we cannot say that the state
No. 12-3125                                            15

court was compelled to reach a contrary conclusion.
Quintana’s statements in his affidavit are uncorroborated
and conclusory, and a “fairminded jurist” could find
such evidence inadequate to show that Quintana was
prejudiced as a result of his counsel’s deficiency. Recog-
nizing the lack of corroborating evidence, Quintana
argues that “any marginally sane or rational person
would have accepted the four year offer if adequately
advised about [his] situation.” Essentially, he requests a
per se rule that petitioners (1) faced with poor prospects
at trial, (2) offered a disparately generous plea relative
to their sentences, and (3) who assert they would
have accepted the plea had they been knowledgeable
about their situation are always prejudiced.
  True, Quintana could have left prison in a year had
he accepted the state’s plea proposal—the state offered
Quintana two years (four years to be served at 50%), and
Quintana had already served one year awaiting trial.
He faced a minimum of 10.2 years if convicted (two six-
year consecutive sentences to be served at 85%) and
the prospect of serving an even longer sentence (he actu-
ally received twenty-one years). Moreover, Quintana
could not have reasonably expected to win: he had a
signed confession and his consent story was seriously
undermined by the victim having jumped naked out of a
moving van on a winter night. But even in the face of a
favorable plea offer and unfavorable facts, some defen-
dants might still advance to trial, swearing they are
innocent and thinking they can succeed against the
state. Quintana fell into that group. Kellogg’s affidavit
confirms that Quintana “insisted that he was not
16                                               No. 12-3125

involved and the actual perpetrator was an individual
who had fled to Mexico.” Further, while the difference
between two and ten years may seem great, the dif-
ference between a not guilty verdict and two years in
prison may be even greater for some defendants. Ad-
mitting to kidnapping and sexually assaulting an indi-
vidual comes with a serious cost.
  In order to find prejudice, we must be convinced that
a disparately generous plea compels a fairminded jurist
to conclude that the defendant would have a reasonable
probability of accepting the plea. See Hutchings v. United
States, 

, 697 (7th Cir. 2010) (explaining that
a petitioner “must . . . come forward with objective evi-
dence” supporting his contention). But as we have dis-
cussed, there are reasons a properly advised, rational
defendant might still reject the plea Quintana was of-
fered. The Illinois appellate court had to determine in
the first instance whether Quintana fell into this subset.
Quintana tries desperately to show that most or many
defendants in his position would accept the plea. This
is not enough. Quintana must offer something more
than the large gap in sentence lengths to show that
he would have accepted the sentence. Given that he
presented no such evidence, we find that a reasonable
basis existed for the state court’s determination that
Quintana was not prejudiced by any deficiency on
the part of his counsel.2



2
  Because a federal court must defer to a state court’s ruling
under § 2254(d) when addressing an issue explicitly discussed
                                                (continued...)
No. 12-3125                                                  17

  We note that our independent view of whether
Quintana was prejudiced is irrelevant. As the fifth court
to review Quintana’s case, we stand only as a “ ‘guard
against extreme malfunctions in the state criminal justice
systems,’ [and] not a substitute for ordinary error correc-
tion through appeal.” 

(quoting
Jackson v. Virginia, 

, 332 n.5 (1979) (Stevens, J.,
concurring)). Having found that the state court’s ruling
on prejudice is not “so lacking in justification that
there was an error well understood and comprehended
in existing law beyond any possibility for fairminded
disagreement,” we are in no position to grant Quintana’s
request in this case. See 

                       III. Conclusion
  For these reasons, we D ENY Quintana’s petition for
a writ of habeas corpus.




2
  (...continued)
and ruled upon by the state court, see 

,
and because the court must, in such a case, restrict its review
to the record before the state court, there was no need for
the district court to receive evidence on the issue of prejudice
during the evidentiary hearing.


                             7-23-13