BALDOCK, Circuit Judge.
The issue here, as framed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), is whether the Wyoming state court's denial of Petitioner's ineffective assistance of counsel claim on collateral review of a guilty plea "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent. 28 U.S.C. § 2254(d)(1). The federal district court thought so. For reasons that follow, we think not. Exercising jurisdiction pursuant to 28 U.S.C. § 2253(a), we reverse.
Five members of Petitioner Steven Bonney's extended family, four girls and one boy, accused him of sexually assaulting them on various occasions when they were between the ages of six and eight and Petitioner was a teenager. The assaults allegedly occurred around 2000 or 2001. The State of Wyoming eventually charged Petitioner in 2008 with four counts of second degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-303(a)(v), and one count of third degree sexual assault in violation of Wyo. Stat. Ann. § 6-2-304(a)(ii).
The factual basis for his plea, which Petitioner did not contest, "established that Bonney had committed acts of vaginal and anal intercourse with T.N. and acts of anal intercourse with V.B." when "[t]he victims were both around eight years old... and Bonney was sixteen or seventeen years of age." Bonney v. Wyoming, 248 P.3d 637, 638 (Wyo.2011) (appeal from the denial of a motion to reduce sentence pursuant to Wyo. R.Crim. P. 35(b)). As part of the plea agreement, the State agreed to (1) dismiss the remaining charges against Petitioner; (2) forego filing similar charges against Petitioner involving P.M., the lone male victim; and (3) recommend that Colorado authorities not charge Petitioner with similar crimes allegedly committed against another victim, K.B., in that State. See id. At sentencing, K.S., a fifth reported victim of Petitioner, tendered a victim impact statement. Notably, the information did not charge Petitioner with any wrongdoing involving K.S. Her oral statement offered no specifics as to Petitioner's misconduct, but focused on how the tragedy had divided the family. The state trial court accepted the plea agreement and, consistent therewith, sentenced Petitioner to consecutive fifteen to twenty-year terms of imprisonment.
Three or four days prior to the thirty-day deadline under Wyoming law for filing a motion to withdraw Petitioner's guilty plea, around March 30, 2009, his retained defense counsel received a letter.
Aplts' App'x at 661 (all caps removed). Defense counsel never informed Petitioner of K.S.'s letter and the thirty-day deadline for seeking relief from Petitioner's guilty plea passed. About a month later, Petitioner retained new counsel.
After he became aware of K.S.'s letter, Petitioner filed a state petition for post-conviction relief pursuant to Wyo. Stat. Ann. § 7-14-101(b). Therein, Petitioner raised a host of ineffective assistance of counsel claims. Among them, Petitioner claimed he never wanted to plead guilty and "should have been notified of the K.S. letter and given a chance to file an appeal or move to withdraw his plea." Aplts' App'x at 94. The sentencing court granted Petitioner an evidentiary hearing on that claim (and two others not at issue here). At the hearing, the court admitted into evidence K.S.'s affidavit. The affidavit is not part of the appellate record but the court's description of it is. K.S. stated "she lied to the police by representing that Petitioner had sexually assaulted her and T.N." Id. at 569. K.S. "claimed that T.N. had encouraged her to corroborate T.N.'s version of events." Id. Additionally, K.S. "generally claimed that T.N. was not a truthful person and that T.N., V.B., and K.B. conspired" against Petitioner. Id. at 569-70. K.S.'s affidavit did not support
Id. at 399-401.
In January 2010, the Wyoming trial court denied Petitioner post-conviction relief in a written order. Citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the court explained that to establish ineffective assistance of counsel, Petitioner must show counsel's failure to timely notify him of K.S.'s letter was deficient, i.e., such failure fell below an objective standard of reasonableness, and that such failure prejudiced his defense. The state court further explained that under Wyoming law "when a guilty plea is challenged based upon ineffective assistance of counsel, the defendant, to establish prejudice, must show that there is a reasonable probability that, but for counsel's errors, a plea of guilty would not have been entered and the defendant would have insisted on going to trial." Aplts' App'x at 570 (quoting Palmer v. Wyoming, 174 P.3d 1298, 1301 (Wyo. 2008)). The court observed that "[t]his `reasonableness' standard is an objective test rather than a subjective one. Thus,
Regarding the purported justification for defense counsel's nonfeasance, the state court summarized his testimony:
Aplts' App'x at 564. Based upon counsel's testimony and the surrounding circumstances as found by the state court, the court opined:
Id. at 574-75 (footnote omitted).
The state court concluded counsel's performance in failing to apprise Petitioner of K.S.'s letter was likely deficient. See id. at 572-73 ("[A] failure to advise one's client of a letter potentially forming the basis for a timely withdrawal of a guilty plea following sentencing may be ineffective assistance in certain circumstances...."). The court further concluded, however, that Petitioner had not been prejudiced because, among other reasons, "whether a reasonable person in his position would have [moved to withdraw his guilty plea] is questionable." Id. at 576. Notably, the court did "not speculate" on the outcome if Petitioner had sought to directly appeal his convictions rather than file a motion to withdraw. Id. at 579. The Wyoming Supreme Court summarily denied review.
Next, Petitioner timely filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 in the federal district court.
Aplts' App'x at 645 (emphasis added) (footnotes omitted).
The district court held "[t]he [state] trial court's decision represents an unreasonable application of clearly established federal law because the court did not consider whether [counsel's] failure [to inform him of K.S.'s letter] prejudiced Bonney's right to appeal." Id. at 648-49. To reach its decision, the district court relied exclusively on Roe v. Flores-Ortega, 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000): "In Roe v. Flores-Ortega, the United States Supreme Court held that `when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal.'" Aplts' App'x at 649 (quoting Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029). The district court effectively rejected the state trial court's contrary analysis in a footnote: "Respondents argue that Petitioner must demonstrate that the decision to withdraw the plea was rational under the circumstances. Petitioner may be able to meet that objective standard, but such analysis is unnecessary here because the subjective inquiry on the prejudice prong set out in Roe v. Flores-Ortega controls." Id. at 650 n. 15 (internal citation omitted).
So what shall we make of this difference of opinion between state and federal court? The district court viewed the matter quite differently than its state brethren. Specifically, the district court jumped beyond the state court's analysis addressing Petitioner's proposed challenge to his guilty plea to tell us that once the state court denied Petitioner's motion to withdraw his plea, he then would have appealed that decision. According to the district court, the proper focus of defense counsel's nonfeasance was its effect upon Petitioner's right to appeal his convictions rather than upon his right to move to withdraw his guilty plea. In his response brief at pages 35 and 42, Petitioner provides us the following explanation:
(emphasis omitted).
Our primary task is to determine whether the Wyoming trial court's decision denying Petitioner post-conviction relief "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established" Supreme Court precedent. 28 U.S.C. § 2254(d)(1). This limited standard of review is the same standard the district court ostensibly applied to grant Petitioner a conditional writ:
Id. "[C]learly established Federal law" for purposes of § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).
We may limit our review still further by distinguishing between subsection (d)(1)'s references to state court decisions that are "contrary to," and those that involve an "unreasonable application of" Supreme Court precedent:
Id. at 412-13, 120 S.Ct. 1495. Pointing out "[t]he word `contrary' is commonly understood to mean `diametrically different, opposite in character or nature,' or `mutually opposed,'" Williams explained that under AEDPA's "contrary to" clause, "the state court's decision must be substantially different from the relevant precedent of [the Supreme] Court." Id. at 405, 120 S.Ct. 1495 (quoting Webster's Third Int'l Dictionary 495 (1976)). Meanwhile, under AEDPA's "unreasonable application" clause, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) (quoting Williams, 529 U.S. at 411, 120 S.Ct. 1495). Instead,
Harrington v. Richter, ___ U.S. ___, 131 S.Ct. 770, 786-87, 178 L.Ed.2d 624 (2011). This is to say a grant of the writ is proper only where the state court's application of Supreme Court precedent is "objectively unreasonable." Lockyer, 538 U.S. at 76, 123 S.Ct. 1166.
Strickland dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding, and was premised in part on the similarity between such a proceeding and the usual criminal trial. The Court's decision tells us "[t]he benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that [the process] cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S.Ct. 2052. As the Wyoming state court recognized, Strickland adopted a two-part standard for evaluating claims of ineffective assistance of counsel: First, "the defendant must show that counsel's representation fell below an objective standard of reasonableness." Id. at 688, 104 S.Ct. 2052. Second, "[t]he 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052.
Two terms after Strickland, the Supreme Court decided Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). In that case, the defendant unsuccessfully sought habeas relief claiming counsel misadvised him regarding the fact that, as a second offender, he was required to serve one-half rather than one-third of his sentence before becoming eligible for parole. Hill held "the two-part Strickland... test applies to challenges to guilty pleas based on ineffective assistance of counsel." Id. at 58, 106 S.Ct. 366.
Id. at 58-60, 106 S.Ct. 366 (internal footnote omitted).
Fifteen years later in Flores-Ortega, the Supreme Court again expressly extended Strickland, this time to "claims ... that counsel was constitutionally ineffective for failing to file a notice of appeal." Flores-Ortega, 528 U.S. at 477, 120 S.Ct. 1029. In doing so, the Court rejected the view that to justify relief based on defense counsel's failure to file a notice of appeal, a defendant need only show he did not consent to counsel's failure to file such notice. The Court observed that a defense attorney who disregards "specific instructions from the defendant to file a notice of appeal" violates the Strickland standard. Id. A "defendant, by instructing counsel to perfect an appeal, objectively indicate[s] his intent to appeal and [is] entitled to a new appeal without any further showing" of prejudice. Id. at 485, 120 S.Ct. 1029 (emphasis added). But where a defendant "has not clearly conveyed his wishes one way or the other" to counsel regarding an appeal, "the circumstance-specific reasonableness inquiry required by Strickland" applies. Id. at 477-78, 120 S.Ct. 1029. The question bearing upon deficient performance under the latter scenario is whether counsel had a duty to consult with the defendant about an appeal. The Court held:
Id. at 480, 120 S.Ct. 1029.
Turning to the question of prejudice, the Court noted "the critical requirement that counsel's deficient performance must actually cause the forfeiture of the defendant's appeal." Id. at 484, 120 S.Ct. 1029. "[W]e hold that when counsel's constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken, the defendant has made out a successful ineffective assistance of counsel claim entitling him to an appeal." Id. Importantly, the Court stated "this prejudice standard breaks no new ground, for it mirrors the prejudice inquiry applied in Hill...." Id. at 485, 120 S.Ct. 1029.
Id. (quoting Hill, 474 U.S. at 59, 106 S.Ct. 366) (internal brackets omitted).
Finally, in Padilla v. Kentucky, 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), a decision rendered after the state court's decision in this case but before the district court's decision, the Supreme Court remanded for a determination of prejudice after concluding defense counsel had an obligation to inform the defendant
We commence our analysis of the Wyoming state court's decision in view of the foregoing Supreme Court precedent by recognizing "that the accused has the ultimate authority to make certain fundamental decisions regarding the case." Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Decisions such as whether to plead guilty, whether to seek to withdraw that plea, and whether to appeal if unsuccessful rest with the defendant. See Flores-Ortega, 528 U.S. at 485, 120 S.Ct. 1029. Perhaps this is why the State of Wyoming, despite the high hurdle the Strickland standard in combination with § 2254(d)(1) presents, concedes defense counsel's failure to notify Petitioner of K.S.'s post-sentencing letter in a timely fashion constitutes constitutionally deficient performance. We express no opinion on the correctness of the State's concession but instead turn our attention to the second prong of the Strickland standard — prejudice. See Strickland, 466 U.S. at 697, 104 S.Ct. 2052 ("[A] court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.").
Petitioner's overarching argument is that the state court unreasonably applied an objective prejudice standard to his claim of ineffective assistance because the standard is subjective. According to Petitioner, Flores-Ortega held that a subjective prejudice standard applies whenever defense counsel's deficient performance deprives the defendant of an appeal "he otherwise would have taken." Flores-Ortega, 528 U.S. at 484, 120 S.Ct. 1029. Petitioner provides us with factual argument (much of it in tension with the state court's findings) to suggest he never wanted to plead guilty and his counsel should have known this.
Unfortunately for Petitioner, we have been unable to locate any Supreme Court precedent, regardless of factual context, that clearly holds the Strickland standard — in whole or in part — is subjective. Flores-Ortega tells us the prejudice standard it announces "breaks no new ground, for it mirrors the prejudice inquiry applied in Hill v. Lockhart."
Hill, 474 U.S. at 58, 106 S.Ct. 366 (emphasis added) (internal citation omitted) (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052).
Lest any doubt remain as to the dubious nature of Petitioner's reading of Flores-Ortega, the Supreme Court in Padilla cited both Strickland and Flores-Ortega in support of an objective prejudice standard. In an application of existing Supreme Court precedent, the Court explained that to establish prejudice based on counsel's failure to advise his client of certain consequences of a guilty plea, a defendant "must convince the court that a decision to reject the plea bargain would have been rational under the circumstances." Padilla, 559 U.S. at 372, 130 S.Ct. 1473 (emphasis added). This, of course, is the standard to which the Wyoming state court held Petitioner on collateral review. See Aplts' App'x at 570-71 ("Petitioner must do more than argue that he would have insisted on going to trial — he must demonstrate that a reasonable person would have done so.").
Yet our rejection of Petitioner's reading of Flores-Ortega still does not answer the pivotal question of whether the state court's decision was either "contrary to" or — more befitting in this case — an "unreasonable application of" Supreme Court precedent within the meaning of § 2254(d)(1).
Let us alter course for the moment however, and begin with the argument or theory the Wyoming state court's decision did not endorse. The district court reasoned that the state court should have considered whether counsel's failure to inform Petitioner of K.S.'s letter prejudiced Petitioner's right to appeal. Not necessarily. Our reading of Flores-Ortega does not require a state court to consider what effect counsel's deficient performance in the trial court had on a defendant's right to appeal. The Supreme Court accepted Flores-Ortega "to resolve a conflict in the lower courts regarding counsel's obligation to file a notice of appeal." Flores-Ortega, 528 U.S. at 476, 120 S.Ct. 1029. Flores-Ortega states at the outset that the case presents a discussion of "the proper framework for evaluating an ineffective assistance of counsel claim, based on counsel's failure to file a notice of appeal without [defendant's] consent." Id. at 473, 120 S.Ct. 1029 (emphasis added). Flores-Ortega stands for the unremarkable proposition that trial counsel's responsibility to represent his or her client effectively may extend to the filing of a notice of appeal.
In contrast, Petitioner's claim of ineffective assistance is grounded not in defense counsel's obligation to file a notice of appeal but in counsel's obligation to disclose K.S.'s partial recantation letter in a timely fashion — a letter Petitioner says constituted grounds to challenge his guilty plea. Unlike in Flores-Ortega, counsel's deficient performance in this case occurred not as part of the appellate process but the trial process. See, e.g., Kennedy v. Kemna, 666 F.3d 472, 486 (8th Cir.2012) (rejecting a broad reading of Flores-Ortega and fastening the prejudice showing required by Strickland to the forum in which counsel performs deficiently). Even the district court recognized as much: "If [counsel] had given Bonney the recantation letter, Bonney would have likely sought to withdraw his guilty plea. According to the [state] trial court, withdrawal would have been denied. Bonney then would have likely appealed that decision to the Wyoming Supreme Court." Aplts' App'x at 645 (emphasis added).
To apply Flores-Ortega here, the state court would have had to extend it beyond what Flores-Ortega clearly established. "[I]f a habeas court must extend a rationale before [that rationale] can apply to the facts at hand, then by definition the rationale was not clearly established at the time of the state-court decision." White v. Woodall, ___ U.S. ___, 134 S.Ct. 1697, 1706, 188 L.Ed.2d 698 (2014) (quoting Yarborough v. Alvarado, 541 U.S. 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004)). Thus, Flores-Ortega is not clearly established precedent for the argument Petitioner effectively advances, namely that defense counsel's performance in failing to inform him of K.S.'s letter denied him the right to challenge his guilty plea by way of a motion to withdraw or, in the alternative, an appeal for the purpose of seeking remand to pursue the former.
Now let us take a look at what arguments or theories supported or could have supported the state court's decision. In rejecting Petitioner's petition for post-conviction relief, the state court's decision undoubtedly reflects the Supreme Court's standard for assessing collateral challenges to guilty pleas. In addition to Strickland, the state court relied on the Wyoming Supreme Court's decision in Palmer v. Wyoming, 174 P.3d 1298 (Wyo. 2008). Palmer "adhere[d] to the principle introduced in Hill." Id. at 1302. Hill, which involved a challenge to a guilty plea, says "[e]ven if a defendant shows that particular errors of counsel were unreasonable,... the defendant must show that they actually had an adverse effect on the defense." Hill, 474 U.S. at 58, 106 S.Ct. 366 (quoting Strickland, 466 U.S. at 693, 104 S.Ct. 2052) (emphasis added). Indeed, Strickland says:
Strickland, 466 U.S. at 693, 104 S.Ct. 2052 (internal citation omitted). This is to say "[t]he 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. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
We hold the state court — applying Supreme Court precedent — reasonably could have concluded that defense counsel's failure to disclose K.S.'s letter in a timely fashion was not sufficient to undermine confidence in the outcome of the prosecution and that a rational defendant would not have sought to withdraw his guilty plea despite K.S.'s partial recantation. See Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007) ("The question under AEDPA is not whether ... the state court's determination was incorrect but whether that determination was unreasonable — a substantially higher threshold."). In recounting the facts, we need remain mindful of two points. First, as the Court in Padilla explained, "it is often quite difficult for petitioners who have acknowledged their guilt to satisfy Strickland's prejudice prong."
Padilla, 559 U.S. at 371 n. 12, 372-73, 130 S.Ct. 1473. Second, as Justice Brennan once observed: "Recantation testimony is properly viewed with great suspicion. It upsets society's interest in finality of convictions, is very often unreliable and given for suspect motives, and most often serves merely to impeach cumulative evidence rather than to undermine confidence in the
In its decision, the Wyoming state court acknowledged the obvious — the withdrawal of Petitioner's guilty plea was wrought with hazard. If Petitioner were allowed to withdraw his guilty plea based on K.S.'s letter and stand trial, "K.S.'s testimony would effectively have branded him a child molester ... perhaps lending credibility to the claims of T.N. and V.B." Aplts' App'x at 575. On top of that, K.S.'s letter indicates Petitioner's offensive conduct may have amounted to a third degree sexual assault upon her as then defined by Wyoming law — an assault carrying a maximum sentence of fifteen years under Wyo. Stat. Ann. § 6-2-306(a)(iii). The letter "destroyed Petitioner's best possible defense," namely that "he was completely innocent and that the victims all conspired to invent charges against him." Aplts' App'x at 564. The state court further noted "K.S.'s letter only pertained to her fabrication of uncharged accusations." Id. at 577. Recall the State never charged Petitioner with any crime against K.S. K.S. also admitted T.N. never told her that she lied about what Petitioner had done to her. K.S.'s accusations that T.N. also fabricated her story and pressured the other alleged victims to do the same in some sort of revengeful plot against Petitioner were "largely speculation and commentary on credibility." Id. at 578. And "[n]either K.S.'s letter nor her affidavit and testimony cast doubt on the veracity of V.B.'s claims" of second degree sexual assault — an assault carrying a maximum sentence of twenty years under Wyo. Stat. Ann. § 6-2-306(a)(ii). Aplt's App'x at 578.
The state court also addressed how Petitioner's purported misconduct towards P.M., the lone male victim, might adversely affect Petitioner's conspiracy defense:
Id. at 565-66.
The state court understood the real possibility that a challenge to Petitioner's guilty plea might result in a "less favorable
Petitioner simply has not met his burden to show the Wyoming state court's decision "was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington, 131 S.Ct. at 786-87. We need not belabor this matter further. Based on the foregoing, we are satisfied a fairminded jurist could conclude the Wyoming state court took an acceptable measure of the case in view of Supreme Court precedent, none of which is directly on point, and rendered a decision that was neither "contrary to, [n]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)(1). For that reason alone, the judgment of the district court granting Petitioner a conditional writ of habeas corpus is reversed and this cause remanded for further proceedings consistent with this opinion.
REVERSED and REMANDED.