FILED
                                                                      United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                          Tenth Circuit

                            FOR THE TENTH CIRCUIT                            June 11, 2019
                        _________________________________
                                                                          Elisabeth A. Shumaker
                                                                              Clerk of Court
 NICHOLAS SOUDERS,

       Petitioner - Appellant,

 v.                                                          No. 18-1419
                                                    (D.C. No. 1:17-CV-02883-RM)
 SCOTT DAUFFENBACH, Warden; PHIL                              (D. Colo.)
 WEISER, Attorney General of the State of
 Colorado,*

       Respondents - Appellees.
                      _________________________________

           ORDER DENYING CERTIFICATE OF APPEALABILITY**
                   _________________________________

Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges.
                   _________________________________

      Nicholas Souders seeks a certificate of appealability (COA) to appeal the

district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.

§ 2254.1 After review, we deny Souders a COA and dismiss his appeal.




      *
       Pursuant to Fed. R. App. P. 43(c)(2), Cynthia Coffman is replaced by Phil
Weiser as a Respondent in this case.
      **
         This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
      1
        Because Souders is pro se, we construe his filings liberally, but we stop short
of acting as his advocate. Hall v. Bellmon, 

, 1110 (10th Cir. 1991).
                                   BACKGROUND

      In 2003, the state of Colorado charged Souders with four counts: (1) sexual

assault (application of physical force or physical violence), in violation of Colo. Rev.

Stat. § 18-3-402(1)(a), (4)(a) (2006); (2) sexual assault (while physically aided or

abetted by another, in violation of § 18-3-402(1)(a), (5)(a)(ii)); (3) conspiracy to

commit sexual assault, in violation of §§ 18-3-402(1)(a), (4) and 18-2-201; and (4)

possession of marijuana with intent to distribute, in violation of § 18-18-06(8)(b)(1).2

People v. Souders, No. 05CA1581, slip op. at 1 (Colo. App. July 26, 2007).

      After a trial on the sexual-offense counts, the jury convicted Souders of the

second count listed above, but it acquitted him on the other two counts. For his

conviction, the court sentenced him to a mandatory range of sixteen years to life

imprisonment under the Colorado Sex Offender Lifetime Supervision Act. On direct

review, the Colorado Court of Appeals (CCA) affirmed Souders’s conviction and

sentence. People v. Souders, No. 05CA1581 (Colo. App. July 26, 2007). The

Colorado Supreme Court denied his writ of certiorari. About six years later, Souders

sought post-conviction relief in the Colorado state courts, asserting ineffective

assistance of trial counsel. Among his many claims, he alleged that his trial counsel

had not timely informed him of the state’s plea offer or of the likely sentencing

consequences of rejecting the offer if later convicted.


      2
        Before trial, the court granted Souders’s motion to sever the marijuana-
possession count. State court file at 5, 62–64, 87–88. Souders later pleaded guilty to
that charge. 

                                            2
       The Colorado state district court held an evidentiary hearing on Souders’s

post-conviction claim. The court heard testimony from Souders, his mother, his trial

counsel, the prosecutor, and Souders’s expert in criminal defense and sexual-assault

sentencing.

       The prosecuting attorney testified that she had offered to dismiss the sexual-

assault charges against Souders if he pleaded guilty to a class 5 sex-offense felony—

because she had “definite proof challenges with this case. . . .” Dec. 6, 2013 hearing

transcript at 7–8. This would have avoided an indeterminate sentence. She

“remember[ed] [counsel] . . . telling [her] that he [had] extended the offer to his

client, and that his client had rejected the offer.” 

       Souders testified (also at the post-conviction hearing) that he first heard about

a plea offer soon before he testified at his sexual-assault trial. He said that he learned

this after mentioning to his trial counsel that he wished the state had offered a plea

deal. Souders further testified that his trial counsel then responded that the state had

in fact made a plea offer, but that it “wasn’t good enough.”3 Nov. 22, 2013 transcript

at 24–25. Souders testified that his trial counsel had given him no details of the plea

offer. 

Souders’s testimony did not reveal whether, after hearing this news,




       3
        Months before Souders’s sexual-assault charges, the same trial counsel had
represented Souders on a petty-theft charge, to which Souders pleaded guilty. For the
sexual-assault case, Souders’s parents retained Mr. Nelson, dipping into their
retirement savings to furnish a flat fee of $30,000.




                                              3
he asked his trial counsel for details about the plea offer, or whether the offer might

still be available. 

Souders testified that his counsel had never explained to him the

difference between determinate and indeterminate sentencing. 

He did

acknowledge that his counsel had told him that if convicted, he “would not be able to

see [his five-year-old] son graduate high school.” 

       Souders equivocated about what he would have done had his counsel in fact

communicated the offer and told him of the indeterminate-sentencing consequences if

convicted of his present charges. First, he testified that had he known those things he

“definitely would have looked at it differently.” 

When asked “[h]ow so?”

he responded, “I probably would have took a plea – plea deal had I known there was

one.”4 

Moments later, Souders testified that he would have “considered” a

plea bargain lowering his sentencing range.5 

this testimony is vague about whether Souders was speaking about
the plea deal actually offered. For instance, Souders never testified that he would
have been willing to take a “psycho-sex” examination. His trial attorney remembered
that the prosecutor had required this as a condition of the plea deal—the test results
then affecting the recommended sentencing range. Dec. 6, 2013 hearing transcript at
29, 34.
       5
         Beginning by recognizing that “hindsight is 20/20,” Souders’s post-
conviction counsel asked Souders whether he would have considered a plea offer if
he had been told he faced a “minimum sentence to potentially the rest of [his] life in
prison if convicted in this case. . . .” 

“Yes.” His counsel then
asked, “It’s something you would have considered?” Souders again answered, “Yes.”

mother testified that she attended the initial meeting between her

son and his trial counsel, and that her son’s trial counsel did not explain the

consequences of an indeterminate sentence at the meeting. She also said that Souders

had never mentioned to her a proposed plea offer or the prospect of indeterminate

sentencing, which she felt he would have done had he known about them.

       Souders’s trial counsel testified that he had told Souders about the state’s offer

during a telephone call from his car immediately after meeting with the prosecutor.

Dec. 6, 2013 hearing transcript at 35. He said he told Souders that the determinate-

sentence offer “was really a good offer.” 

Souders maintained his innocence.

Trial counsel testified that he believed Souders had rejected the plea offer

because Souders felt that something must be going wrong with the prosecutor’s case.

counsel “c[ouldn’t] remember if [he] discussed [the plea offer] after

that or not,” he stated that he had spoken with Souders “numerous times” about the

strengths and weaknesses of his case and about the potential consequences if he went

to trial and lost, including the possibility of spending the rest of his life in prison. 

35. But trial counsel agreed that his case file contained no notations

memorializing that he had communicated the plea offer to Souders or discussed the

consequences of an indeterminate sentence with him. 

34–35, 39–40. He

described himself as “[p]retty rotten at keeping notes.” 

       Finally, Souders called an expert in criminal-defense representation and sex-

offense sentencing. The expert testified that accepting the state’s offer would likely

have resulted in a two-to-six-year prison sentence, followed by two years of parole,


                                             5
during which time Souders would have had to register as a sex offender. 

In

contrast, he explained that under an indeterminate sentence, a defendant is given a

much longer minimum sentence and “can be held in the Department of Corrections

for the rest of [his] life until the Department of Corrections and the parole department

decides that [he’s] not a risk, and [he] can be released.” 

And “up until

recently [that] has meant that [the defendant is] not going to be paroled.” 

of that, “the parole is a lifetime parole, meaning [that the defendant] will be on parole

for the rest of [his] natural life.” 

       Souders’s expert also testified that failing to tell a client about the

consequences of rejecting the state’s plea offer would fall below the standard of care

for adequate representation. 

“You have to have your client come in and

sit down with you so you can go over both the evidence and the law and the

consequences face to face,” because “[t]his is not a decision you would have your

client make over the telephone.” 

As for trial counsel’s failure to

memorialize the offer or any of his discussions with Souders, the expert testified that

such a failure “definitely f[ell] below the standard of care.” 

He explained

that “documenting [plea offers] on your file is very important” because it allows you

to “remember what [the offer] is” and because “if someone else has to look at your

file, they can figure out what the plea agreement is.” 

       At the end of the hearing, the state district court ruled that Souders had failed

to establish ineffective assistance of trial counsel. Specifically, it concluded that

“even if the Court were to assume that defense counsel’s performance was deficient,


                                              6
[Souders] would fail on the second prong,” because he “failed to prove by a

preponderance of the evidence that but for defense counsel’s errors, he would have

accepted the plea.” State court file at 466–68. Then presumably switching to the

deficient-performance prong, the district court stated that “[d]ue to the specificity of

and lack of refutation of the defense counsel’s testimony, and the direct refutation of

the Defendant’s testimony, this Court finds the defense counsel’s testimony more

credible and in line with actual events.”6 

Even so, for reasons not given,

the district court did not rest its holding on the deficient-performance prong. See 

affirmed this decision. People v. Souders, No. 14CA0208 (Colo.

App. Aug. 31, 2017). The CCA noted that “even if we assume, without deciding, that

trial counsel’s performance during the plea negotiation process was deficient, we

nonetheless conclude that defendant did not show that counsel’s substandard

performance had prejudiced him.” 

The CCA noted that “[t]o establish

prejudice in this context, defendant must show that there was a reasonable probability

that, but for counsel’s errors, he would have accepted the plea offer rather than

proceed to trial. 

The CCA acknowledged that “sentencing disparities can

serve as corroborating evidence” that a defendant would have accepted a plea deal,

but it ultimately ruled that Souders had failed to show prejudice. As


      6
        The Colorado Court of Appeals began its analysis by saying that “we agree
with the defendant that some of the trial court’s findings were not supported by the
record and that we therefore are not required to defer to them.” Slip. Op. at 9.
Whether this cryptic reference included the district court’s credibility finding is
unimportant though, because, as seen above, both courts relied on Strickland’s
prejudice prong, bypassing the deficient-performance prong.

                                            7
support, the CCA referenced Souders’s “indecisive and conditional” responses about

whether he would have accepted the plea agreement and also referenced his

testimony that “he did not raise the possibility of a plea deal with trial counsel

because he ‘was trying to prove [his] innocence.’” 

         Souders petitioned for federal habeas relief, reasserting his claim for

ineffective assistance of trial counsel based on counsel’s allegedly failing to

communicate a plea offer, and allegedly not explaining the effect of an indeterminate

sentence under the Colorado Sex Offender Lifetime Supervision Act. In addition,

Souders raised a claim for ineffective assistance of post-conviction counsel, based on

counsel’s allegedly taking five years to complete the post-conviction motion, and for

failing to fully articulate the bases of Souders’s claim for ineffective assistance of

trial counsel. Souders v. Dauffenbach, No. 17-cv-02883-RM (D.Colo., filed Dec. 1,

2017).

         The district court first dismissed the claim for ineffective assistance of post-

conviction counsel, under 28 U.S.C. §2254(i). Souders v. Dauffenbach, No. 17-cv-

02883-RM (D.Colo., filed May 11, 2018). Four months later, it dismissed Souders’s

claim for ineffective assistance of trial counsel, reasoning that Souders had not

shown the CCA’s decision “was so lacking in justification that there was an error

well-understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Souders v. Dauffenbach, No. 1:17-cv-02883-RM

(D.Colo., filed Sept. 24, 2018). In the same order, the district court concluded that it




                                              8
had “no basis on which to issue a certificate of appealability pursuant to 28 U.S.C.

§2253(c).” 

      Souders now seeks a COA to review this federal district court’s decision. He

raises these same two issues. First, he contends that the federal district court abused

its discretion in dismissing his claim for ineffective assistance of post-conviction

counsel. Second, he contends that the federal district court abused its discretion by

“considering the CCA’s findings as being reasonable, when the [CCA] could not

provide a single shred of objective corroborating evidence mandated to support such

finding.” Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at 5, 11 (D.Colo., filed

Jan. 8, 2019).7

                             STANDARD OF REVIEW

      We have authority to grant a COA upon a “substantial showing of the denial of

a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that

reasonable jurists could debate whether . . . the petition should have been resolved in

a different manner or that the issues presented were adequate to deserve

encouragement to proceed further.” Howell v. Trammell, 

, 1224–25

(10th Cir. 2013) (quoting United States v. Taylor, 

, 1078 (10th Cir.

2006)). This means that we consider whether reasonable jurists could debate the


      7
        We do not read Souders’s application for a COA from our court as making
any claim under 28 U.S.C. § 2254(d)(2), or (e). In any event, Souders has failed to
provide a sufficient argument supporting any claim that the state-court decision was
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,” or clear and convincing evidence rebutting
the presumption of correctness, as required by those subsections.

                                           9
correctness of the federal district court’s order denying habeas relief. In doing so, we

also apply to the CCA’s decision the same double-deference standard required by the

tandem of Strickland and 18 U.S.C. § 2254(d).8 In other words, we follow the

Supreme Court’s direction to “look to the District Court’s application of AEDPA to

petitioner’s constitutional claims and ask whether that resolution was debatable

amongst jurists of reason.” Miller-El v. Cockrell, 

, 336 (2003).

       In deciding whether a petitioner is entitled to a COA, we overview the habeas

claims and generally assess their merits. 

We lack jurisdiction to adjudicate

the actual merits. 

Our job at this stage is not to decide whether a claim

will ultimately succeed, or even whether some jurists would grant the petition. 

After all, “a claim can be debatable even though every jurist of reason might

agree, after the COA has been granted and the case has received full consideration,

that petitioner will not prevail.” 

       Here, the federal district court ruled that the CCA had not violated clearly

established law by denying Souders’s ineffective-assistance claims on the merits.



       8
         The first level of deference arises “because the Strickland standard is a
general standard, [so] a state court has even more latitude to reasonably determine
that a defendant has not satisfied the standard.” Knowles v. Mirzayance, 

, 123 (2009). The second level arises from review under the Antiterrorist and
Effective Death Penalty Act (AEDPA), which conditions a writ on there being “no
possibility fairminded jurists could disagree that the state court’s decision conflicts
with this Court’s precedents; that is, “Section 2254(d) reflects the view that habeas
corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’
not a substitute for ordinary error correction through appeal.” Harrington v. Richter,

, 102–03 (2011) (quoting Jackson v. Virginia, 

, 332 n. 5
(1979) (Stevens, J., concurring)).

                                             10
Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at (D.Colo., filed Sept. 24, 2018).

See 28 U.S.C. §2254(d)(1). In particular, the district court found reasonable the

CCA’s determination that Souders had failed to show prejudice under Strickland—

that he would have taken the plea offer. Reviewing under AEDPA deference, the

district court concluded that the CCA’s decision was neither contrary to clearly

established law (a Supreme Court holding) nor an unreasonable application of clearly

established law to his case. Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at 15–

18 (D.Colo., filed Sept. 24, 2018). As mentioned, the federal district court had

already dismissed Souders’s claim in which Souders had asserted ineffective

assistance of post-conviction counsel.

      “Where a district court has rejected the constitutional claims on the merits, the

showing required to satisfy §2553(c) is straightforward. The petitioner must

demonstrate that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Slack v. McDaniel, 

, 484

(2000). The district court properly limited its review “to the record that was before

the state court that adjudicated the claim on the merits,” and required “an

examination of the state-court decision at the time it was made.” Cullen v. Pinholster,

, 181–82 (2011).

                                    DISCUSSION

      For issues the CCA decided on the merits, Souders must show that the CCA’s

decision is contrary to, or an unreasonable application of clearly established law. 28

U.S.C. § 2254(d)(1). In analyzing this, we begin by reviewing the Supreme Court


                                          11
cases he relies upon to support his claims. These cases concern Strickland claims of

ineffective assistance of counsel in the plea context.

      A. Souders’s Cited Supreme Court Cases Involving Strickland Claims in the
         Plea Context

      Under the Strickland framework, a petitioner must show (1) that “counsel

made errors so obvious that counsel was not functioning as ‘counsel’” and (2) that

“the deficient performance prejudiced the defense.” Johnson v. Carpenter, 

, 900 (10th Cir. 2019). In his petition, Souders cites the following cases in which

the Supreme Court has applied the Strickland framework in the plea context.

      In Hill v. Lockhart, 

(1985), Mr. Hill pleaded guilty to first-degree-

murder and theft charges, agreeing to terms of 35 and 10 years of imprisonment. 

Before pleading, Mr. Hill obtained advice from counsel that he could become

parole eligible after completing one-third of his prison term. 

This advice

proved wrong. Instead, as a second offender, Mr. Hill was not parole eligible until he

completed one-half of his prison term. 

So just a year after Strickland, the

Court was called upon to decide whether the same ineffective-assistance-of-counsel

rule applied in this plea setting. 

After reviewing why prejudice mattered in

this context too, the Court held “that the two-part Strickland v. Washington test

applies to challenges to guilty pleas based on ineffective assistance of counsel.” 

To meet the required showing of prejudice, Mr. Hill had to “show that there is a

reasonable probability that, but for counsel’s errors he would not have pleaded guilty

and would have insisted on going to trial.” 

The Court ruled that Mr. Hill



                                           12
had failed to meet the Strickland-prejudice showing, noting that he “did not allege in

his habeas petition that, had counsel correctly informed him about his parole

eligibility date, he would have pleaded not guilty and insisted on going to trial.” 

         In Padilla v. Kentucky, 

(2010), Mr. Padilla pleaded guilty to

transporting a large amount of marijuana in his trailer. 

He was a native of

Honduras but also was a lawful permanent resident of the United States, even having

served in Vietnam. 

advised him that a conviction would not result in

deportation, when, in fact, it virtually ensured it. 

agreed with Mr.

Padilla that “constitutionally competent counsel would have advised him that his

conviction for drug distribution made him subject to automatic deportation.” 

In finding Mr. Padilla’s counsel ineffective, the Court relied on prevailing

professional norms, the importance of a client’s right to stay in the United States, and

the immigration statute’s being “succinct, clear, and explicit in defining the removal

consequences for Padilla’s conviction.” 

The Court rejected the

Kentucky Supreme Court’s view that the ineffectiveness claim could not reach

collateral matters, those not within the sentencing court’s authority.” 

After

ruling that “Strickland applies to Padilla’s claim,” the Court remanded for a

determination of whether Mr. Padilla could show prejudice. 

In summary,

the Court noted that “we have long recognized that the negotiation of a plea bargain

is a critical phase of litigation for purposes of the Sixth Amendment right to effective




                                            13
assistance of counsel.” 

(citing Hall, 

; McMann v. Richardson,

, 770–71 (1970)).

      In Missouri v. Frye, 

(2012), Mr. Frye was charged with a felony

for driving with a revoked license after three previous convictions for that offense.

The prosecutor sent Mr. Frye’s counsel two alternate plea offers, the first

agreeing to recommend a 3-year sentence for a guilty plea to the felony, with a 10-

day sentence and no recommendation on probation; and the second agreeing to a

misdemeanor plea if Mr. Frye agreed to a 90-day sentence. 

were to

expire on December 28, but counsel failed to convey the offers. 

later

driving-while-revoked arrest, Mr. Frye pleaded guilty to the original felony charge,

and the prosecutor recommended the sentence offered in the first plea offer. 

court sentenced him to three years’ imprisonment. 

state postconviction hearing, Mr. Frye “testified he would have entered

a guilty plea to the misdemeanor had he known about the offer.” 

Court of Appeals ruled in Mr. Frye’s favor, concluding that he had “met both of the

requirements for showing a Sixth Amendment violation under Strickland.” 

certiorari, the Supreme Court looked to Hill and Padilla “in considering the

role of counsel in advising a client about a plea offer and an ensuing guilty plea.” 

that “Hill established that claims of ineffective assistance of counsel in

the plea bargain context are governed by the two-part test set forth in Strickland.” 

(citing 

). The Court noted that Mr. Hill’s ineffectiveness

claim had failed for lack of prejudice—referencing Mr. Hill’s failure even to allege


                                           14
that if properly advised he would have opted for trial instead of pleading guilty. 

       After reviewing those two cases, the Court noted their differences with Mr.

Frye’s—Hill and Padilla involved defendants pleading guilty on incorrect advice,

while Frye involved a defendant who had pleaded guilty on accurate advice from

counsel. So Mr. Frye’s argument differed because it involved “the course of legal

representation that preceded it with respect to other potential pleas and plea offers.”

In this different circumstance, the Court commented that “[t]he inquiry

then becomes how to define the duty and responsibilities of defense counsel in the

plea bargain process.” 

The Court held “that, as a general rule, defense

counsel has the duty to communicate formal offers from the prosecution to accept a

plea on terms and conditions that may be favorable to the accused.” 

declined to address possible exceptions, noting that “the offer was a formal one with

a fixed expiration date.” 

By not conveying the offer, Frye’s counsel had

rendered deficient performance. 

whether prejudice results from plea offers having “lapsed or been

rejected because of counsel’s deficient performance,” the Court required a showing

of “a reasonable probability they would have accepted the earlier plea had they been

afforded effective assistance of counsel.” 

The Court also required a

defendant to show a reasonable probability that the prosecution would not have

canceled its offer before the defendant entered the guilty plea, and also that the

sentencing court would have accepted it. 

thought that Mr. Frye might


                                           15
have shown a reasonable probability he would have accepted the first plea offer if his

counsel had told him of it—because he later pleaded to a more serious charge. 

But the Court still remanded on the prejudice question, needing to know whether

Missouri law would require the prosecutor and court to have proceeded with the plea

deal even after Mr. Frye was again arrested on the same charge. 

      In Lafler v. Cooper, 566 (2012), decided the same day as Frye, Mr. Cooper

had fired a gun repeatedly at a fleeing woman, striking her in the buttock, hip, and

abdomen. 

The state charged him with assault with intent to commit

murder, felon in possession of a firearm, possession of a firearm in connection with a

felony, and misdemeanor marijuana possession. 

attorney twice

offered a plea deal by which the state would recommend a sentence of 51 to 85

months on the other two counts. 

communicated to the court his

admission of guilt and desire to accept the plea offer. 

later rejected the

offers on the advice of counsel—who persuaded him that a jury was unlikely to

convict on the charge of assault with intent to commit murder, because the victim

was shot below the waist. 

the prosecuting attorney offered a

significantly-less-favorable plea deal, which Mr. Cooper rejected. 

he was

convicted on all counts and was sentenced to imprisonment for 185 to 360 months.

district court granted Mr. Cooper a conditional writ calling for

specific performance of the original plea agreement. 

It concluded “that the

Michigan Court of Appeals had unreasonably applied the constitutional standards for


                                           16
effective assistance of counsel laid out” in Strickland and Hill. 

Circuit

affirmed, and the Supreme Court granted certiorari. 

began by reviewing governing principles, including that

“Defendants have a Sixth Amendment right to counsel, a right that extends to the

plea bargaining process,” 

132 S. Ct. at 1386–87, and Padilla, 130 S.

Ct. at 1486). The Court noted that “[d]uring plea negotiations defendants are ‘entitled

to the effective assistance of competent counsel.’” 

397 U.S. at

771). And finally, the Court said that “[i]n Hill, the Court held ‘the two-part

Strickland v. Washington test applies to challenges to guilty pleas based on

ineffective assistance of counsel.’” 

U.S. at 58). Then, after noting that

the parties had agreed that trial counsel’s performance was deficient, the Court turned

to Strickland prejudice. 

       Here, the Lafler Court restated its rule that “[i]n the context of pleas a

defendant must show the outcome of the plea process would have been different with

competent advice.” 

566 U.S. at 1388). Where “the ineffective advice

led not to an offer’s acceptance but its rejection,” the Court determined, “a defendant

must show that but for the ineffective advice of counsel there is a reasonable

probability that the plea offer would have been presented to the court. . . .” 

rejected the government’s argument that conviction at a fair trial rules out

Strickland prejudice. 

The Court concluded that Mr. Cooper had satisfied

both Strickland prongs. 

But for the first time in this series of cases,

another issue remained—what effect might AEDPA have?


                                            17
       Under 28 U.S.C. § 2254(d)(1), the federal courts must defer to the state court’s

ruling unless it was contrary to or an unreasonable application of clearly established

federal law, that is, a Supreme Court holding. The Court noted that “[a] decision is

contrary to clearly established law if the state court ‘applies a rule that contradicts the

governing law set forth in [Supreme Court] cases.’” 

(citing Williams v.

Taylor, 

, 405 (2000)). Applying this standard, the Court concluded that

the Michigan Court of Appeal’s decision indeed was contrary to clearly established

federal law, namely, Strickland. 

. It said that the state court had correctly

identified the issue as ineffectiveness of counsel but had “failed to apply Strickland

to assess it.” 

. The Court required more than merely inquiring into whether

the plea was rejected knowingly and voluntarily. 

free from § 2254(d)(1)’s

deferential review, the Court ruled for Mr. Cooper based on Strickland.

       Finally, in Lee v. United States, 

(2017), Mr. Lee was a

permanent resident from South Korea, who had lived in the United States for most of

his life. 

Over the years, he had built a successful restaurant business, but

still chose to sell drugs as a side business. 

After being charged

federally, Mr. Lee hired counsel, who began trying to negotiate a plea. 

Mr. Lee repeatedly asked his counsel about whether he would face deportation if

found guilty. 

counsel assured him he was not at risk of deportation, Mr.

Lee pleaded guilty and was sentenced to a year and a day in prison. 

Mr. Lee, his counsel was mistaken about the immigration consequences—his drug




                                            18
conviction qualified as an aggravated felony under the Immigration and Nationality

Act, which required deportation. 

filed a federal habeas petition under 28 U.S.C. § 2255, arguing

ineffective assistance of trial counsel. 

court denied relief, and the

Sixth Circuit affirmed. 

The Sixth Circuit found that Mr. Lee’s claim

faltered on Strickland’s prejudice prong—that he had not shown a reasonable

probability that he would have declined to plead guilty and insisted on a trial. 

Circuit relied primarily on the overwhelming evidence of guilt. 

Court granted certiorari.

       The Court acknowledged that a defendant’s prospects at trial are important

when the prospects are what motivates a defendant to plead and forego trial. 

But the Court observed that Mr. Lee’s calculation was not of that ilk. 

counsel’s error was not the sort that would affect the chances of success at trial

(as would, say, a failure to file a suppression motion), but instead was the sort that

“affected Lee’s understanding of the consequences of pleading guilty.” 

recognized the reality that a defendant lacking a viable defense faces long odds and

so “will rarely be able to show prejudice from accepting a guilty plea that offers him

a better resolution than would be likely after trial.” 

Even so, because the

Court had “no reason to doubt the paramount importance Lee placed on avoiding

deportation,” and because “substantial and uncontroverted evidence” backed Mr.

Lee’s position that he would not have pleaded guilty absent his counsel’s deficient

performance, the Court ruled in his favor on Strickland prejudice. 

                                            19
       B. Souders’s Claim and 28 U.S.C. § 2254(d)

       1. 18 U.S.C. §2254(d)(1): “Contrary to” Clearly Established Law

       To begin, we see no fault in how the CCA applied Strickland’s legal

framework. As Strickland directs, the CCA analyzed ineffectiveness using the two

prongs—deficient performance and prejudice. Nor does Souders disagree. Instead he

complains that the federal district court erred in its deferential review of the CCA’s

conclusion that he had not shown prejudice under Strickland.

       “[A] state-court decision is contrary to clearly established law only ‘if the state

court applies a rule that contradicts the governing law set forth in [the Supreme

Court] cases’ or ‘if the state court confronts a set of facts that are materially

indistinguishable from a decision of th[e] Court and nevertheless arrives at a result

different from [its] precedent.’” Vreeland v. Zupan, 

, 875 (10th Cir.

2018) (quoting Williams v. Taylor, 

, 405–06 (2000)).

       To show Strickland prejudice, Souders needed to show that absent counsel’s

errors, he would have pleaded guilty and not taken his case to trial.9 

. Yet he equivocated on this point. No Supreme Court holding permits this



       9
        The CCA did not decide whether Souders’s counsel had provided
constitutionally deficient performance. Ordinarily, we would review this question de
novo, freed from any of § 2254(d)(1)’s constraints. But here we need not reach this
question. Instead, we can decide Souders’s petition on Strickland’s prejudice prong.



                                            20
equivocation. In fact, as earlier mentioned, the Court in Hill faulted the petitioner for

“not alleg[ing] in his habeas petition that, had counsel correctly informed him about

his parole eligibility date, he would have pleaded not guilty and insisted on going to

trial.” 

Nor was this stray language. Twenty-seven years later, in Frye, the

Court reviewed Hill and reemphasized that Mr. Hill “had not alleged that, even if

adequate advice and assistance had been given, he would have elected to plead not

guilty and proceed to 

. Accordingly, we cannot say that

fairminded jurists might debate the district court’s conclusion that Souders has failed

to demonstrate he is entitled to relief under the ‘contrary to’ component of

§2254(d)(1).

       2. “Unreasonable Application of” Clearly Established Law

       An unreasonable application of Supreme Court holdings “must be ‘objectively

unreasonable,’ not merely wrong, even ‘clear error’ will not suffice.” Lockyer v.

Andrade, 

, 75–76 (2003). “As a condition for obtaining habeas corpus

from a federal court, a state prisoner must show that the state court’s ruling on the

claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Harrington v. Richter, 

, 786–87 (2011).

A petitioner can obtain relief “under § 2254(d)(1)’s unreasonable-application clause

if, and only if, it is so obvious that a clearly established rule applies to a given set of

facts that there could be no ‘fairminded disagreement’ on the question.” White v.

Woodall, 

, 427 (2014) (citing 

).


                                             21
      Here, the Supreme Court holdings on ineffective counsel in the plea setting do

not give a clearly established rule that applies to the facts of Souders’s case to gain

him relief. As mentioned, the Supreme Court cases run counter to Souders’s

position—at the very least they strongly suggest that a petitioner’s equivocal

testimony on whether he would have availed himself of a plea offer is insufficient.

      Further, even had Souders unequivocally testified that he would have taken the

plea deal offered, we would not take that subjective testimony on faith. Instead, we

would also consider the objective facts in the record. See Heard v. Addison, 

, 1184 (10th Cir. 2013) (quoting Padilla v. Kentucky, 

, 371 (2010)

(emphasis added)). Here, on balance, those facts do not favor Souders. For example,

represented by the same counsel, Souders had previously obtained a plea offer and

guilty plea in a petty-theft case. Obviously, Souders knew about the plea-agreement

process and the possible benefits of obtaining a plea. Despite that, Souders never

claimed to have asked his counsel about seeking a plea deal, despite knowing he

faced a lengthy sentence without one. Further, Souders continued to maintain his

factual innocence (i.e., that the victim had consented to the sexual intercourse), even

at the post-conviction proceeding. By continuing to assert, even after his conviction,

that the victim had consented to the sexual intercourse, Souders certainly raises doubt

whether he could even have laid a sufficient factual basis to support a guilty plea to a

sexual-offense felony. Under these circumstances, we cannot say that reasonable

jurists could debate whether the federal district court erred in concluding, after giving

the necessary deference to the CCA, that the CCA failed to reasonably apply clearly


                                           22
established law when it concluded that Souders had failed to show Strickland

prejudice.

       C. Souders’s Habeas Claim Based on Post-Conviction Counsel’s Alleged
          Ineffective Assistance

       In addition, addressing Souders’s other habeas ground, we conclude that the

district court correctly ruled that § 2254(i) bars Souders’s claim based on allegedly

ineffective assistance of post-conviction counsel. 28 U.S.C. § 2254(i) (“The

ineffectiveness or incompetence of counsel during Federal or State collateral post-

conviction proceedings shall not be a ground for relief in a proceeding arising under

section 2254.”). To overcome this bar, Souders cites Martinez v. Ryan, 

, 9

(2012), which held that “[i]nadequate assistance of counsel at initial-review collateral

proceedings may establish cause for a prisoner’s procedural default of a claim of

ineffective assistance at trial.” Souders’s Opening Br. at 7–8. But Martinez doesn’t

apply here, because Souders did not default on his ineffective assistance-of-trial-counsel

claim. Rather, his post-conviction counsel squarely raised the claim in the state court, and

the state district court held an evidentiary hearing on the claim. See 

. As such, § 2254(i) bars Souders’s claim of ineffective assistance of post-conviction

counsel, and reasonable jurists could not debate the point. See 

.




                                            23
                                CONCLUSION

      We deny Souders a COA and dismiss his appeal. We grant Souders’s motion

to proceed in forma pauperis.


                                       Entered for the Court


                                       Gregory A. Phillips
                                       Circuit Judge




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