Filed: Sep. 25, 2020
Latest Update: Sep. 26, 2020
Summary: Case: 18-11203 Document: 00515579388 Page: 1 Date Filed: 09/25/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 25, 2020 No. 18-11203 Lyle W. Cayce Clerk David Abram Anaya, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:15-CV-234 Before
Summary: Case: 18-11203 Document: 00515579388 Page: 1 Date Filed: 09/25/2020 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED September 25, 2020 No. 18-11203 Lyle W. Cayce Clerk David Abram Anaya, Petitioner—Appellant, versus Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent—Appellee. Appeal from the United States District Court for the Northern District of Texas USDC No. 2:15-CV-234 Before B..
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Case: 18-11203 Document: 00515579388 Page: 1 Date Filed: 09/25/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
September 25, 2020
No. 18-11203 Lyle W. Cayce
Clerk
David Abram Anaya,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-234
Before Barksdale, Haynes, and Willett, Circuit Judges.
Don R. Willett, Circuit Judge:
David Anaya was charged with murder and aggravated assault. He
rejected the State’s plea deal and opted instead for a jury trial. He didn’t deny
that he shot the victim. He insisted instead that he fired in self-defense. But
Anaya’s lawyer did not tell Anaya that, because he was a felon in possession
of a weapon, the jury could consider his failure to retreat under Texas law.
So now Anaya brings a habeas claim for ineffective assistance of counsel. The
district court denied Anaya relief. Because of the rigorous deference we owe
the state court’s judgment on collateral review, we AFFIRM.
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No. 18-11203
I
Late one night in Potter County, Texas, a group of five teenagers
heard gunshots as they were leaving a club. They ran to their car, where they
found a man, beaten and bloody, leaning up against it. One of the teens threw
the man off the car so they could leave.
David Anaya left the same club at about the same time. He noticed a
crowd in the parking lot and saw “flashes of a gun in the air.” A group was
“pounding on somebody with their feet.” Anaya went to investigate. By the
time Anaya got close enough to the scene, he found his brother on the ground,
brutally beaten, wounded, and bleeding. Anaya gathered his brother, put him
in the front seat of his car, and put his brother’s gun in the console. Anaya
wanted to leave before police arrived because he was on parole.
While driving down Amarillo Boulevard, Anaya pulled up alongside
the car full of teens from the club. One of the teens testified that Anaya
accused them of attacking his brother. Anaya says that the front passenger in
the other car was making “aggressive gestures” and that someone in the back
seat pointed a gun at Anaya through the window. Anaya then fired his
brother’s gun at them, he claims, in self-defense. One of the teen passengers
was struck in the temple and died. The police recovered a black toy gun from
the teenagers’ car, but the owner of the toy gun denied having brandished it.
An investigator testified that the toy gun resembled a semi-automatic gun—
its blue and orange coloring had been scratched off to make it look real.
The State offered Anaya a plea bargain: 30 years for murder and 15
years for aggravated assault. Anaya did not deny the underlying facts in the
2
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indictment but claimed he was acting in self-defense. So Anaya’s discussions
with his lawyer, Rus Bailey, centered on the viability of a self-defense claim at
trial. That was Anaya’s only defense. The State provided Bailey with a list of
Anaya’s convictions and made clear it planned to use those convictions at trial
to enhance Anaya’s punishment. Because of those prior convictions, at the
time of the shooting, Anaya was a felon in possession of a firearm. This meant
that the jury could consider Anaya’s failure to retreat in evaluating the
reasonableness of his actions. 1
The jury convicted Anaya of both assault and felony murder. He was
sentenced to 40 and 99 years, respectively. Anaya appealed, and the state
intermediate appellate court affirmed. The Texas Court of Criminal Appeals
refused Anaya’s petitions for review. And he did not seek certiorari from the
Supreme Court of the United States.
Anaya pursued an ineffective assistance of counsel claim in three state
habeas proceedings, the last dismissed as successive. The TCCA denied
relief, and the Supreme Court denied certiorari. 2 All of Anaya’s state habeas
petitions were denied without written orders. Anaya applied to the federal
district court for habeas relief. 3 The district court adopted the magistrate
judge’s written findings, conclusions, and recommendation—the only
written opinion in Anaya’s habeas proceedings—and denied a Certificate of
1
Tex. Penal Code Ann. § 9.32(c), (d).
2
Anaya v. Texas, 136 S. Ct. 195 (2015).
3
See 28 U.S.C. § 2254.
3
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Appealability. We granted Anaya a COA on one issue: Anaya’s ineffective
assistance of counsel claim that his counsel misdescribed the law of self-
defense, which impaired Anaya’s ability to make an informed decision on the
viability of his only defense and the State’s plea offer.
II
When a state court denies a habeas application without a written
order—as is the case here—that decision is an adjudication on the merits
subject to deference under 28 U.S.C. § 2254(d). 4 When a district court
denies a § 2254 application, we review the district court’s findings of fact for
clear error and its conclusions of law de novo, “applying the same standard
of review to the state court’s decision as the district court.” 5 We also review
mixed questions of law and fact de novo. 6
To obtain relief under § 2254(d), Anaya must establish that the state
court’s adjudication of his claim “resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States” or “resulted in a
decision that was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 7
4
Register v. Thaler, 681 F.3d 623, 626 n.8 (5th Cir. 2012).
5
Robertson v. Cain, 324 F.3d 297, 301 (5th Cir. 2003) (citation omitted).
6
Id.
7
28 U.S.C. § 2254(d).
4
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III
The Sixth Amendment right to counsel extends to the plea-bargaining
process, where defendants are “entitled to the effective assistance of
competent counsel.” 8 In fact, we have “observed that providing counsel to
assist a defendant in deciding whether to plead guilty is ‘one of the most
precious applications of the Sixth Amendment.’” 9 That’s because the
overwhelming majority of federal and state convictions are the result of guilty
pleas. 10 The Supreme Court has repeatedly reminded us that, because our
criminal justice system has become “for the most part a system of pleas, not
a system of trials,” the “critical point for a defendant” is often plea
negotiation, not trial. 11 And because “horse trading between prosecutor and
defense counsel determines who goes to jail and for how long,” plea
bargaining “is not some adjunct to the criminal justice system; it is the
criminal justice system.” 12
Anaya’s ineffective assistance of counsel claim—based on Bailey’s
advice at plea bargaining—is governed by the two-part test established in
8
Lafler v. Cooper, 566 U.S. 156, 162 (2012) (quoting McMann v. Richardson,
397
U.S. 759, 771 (1970)).
9
United States v. Rivas-Lopez, 678 F.3d 353, 356 (5th Cir. 2012) (cleaned up)
(quoting United States v. Grammas,
376 F.3d 433, 436 (5th Cir. 2004)).
10
Missouri v. Frye, 566 U.S. 134, 143 (2012) (“Ninety-seven percent of federal
convictions and ninety-four percent of state convictions are the result of guilty pleas.”).
11
Id. at 143–44 (quoting
Lafler, 566 U.S. at 170).
12
Id. (emphasis in original) (quoting Scott & Stuntz, Plea Bargaining as Contract,
101 Yale L.J. 1909, 1912 (1992)).
5
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Strickland v. Washington. 13 Under Strickland, a defendant who claims
ineffective assistance of counsel must show: (1) “that counsel’s
representation fell below an objective standard of reasonableness,” 14 and
(2) that the deficiency was “prejudicial to the defense.” 15 The inquiry is
highly deferential to counsel. 16 And in the habeas context, we do not start
with a clean slate but must give deference to the state court under
§ 2254(d). 17 We address each Strickland prong in turn, applying the requisite
“doubly deferential” standard of review “that gives both the state court and
the defense attorney the benefit of the doubt.” 18
A
First, the performance prong. To show deficient performance under
Strickland, Anaya must show that Bailey “made errors so serious that counsel
was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” 19
We must “indulge a strong presumption that counsel’s conduct falls within
13
See id. at 140.
14
466 U.S. 668, 688 (1984).
15
Id. at 692.
16
Id. at 690 (“[C]ounsel is strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of reasonable professional judgment.”);
see also Cullen v. Pinholster,
563 U.S. 170, 189 (2011).
17
See Mejia v. Davis, 906 F.3d 307, 315 (5th Cir. 2018) (citing Harrington v. Richter,
562 U.S. 86, 105 (2011)).
18
Burt v. Titlow, 571 U.S. 12, 15 (2013) (citation omitted).
19
United States v. Kayode, 777 F.3d 719, 723 (5th Cir. 2014) (quoting
Strickland, 466
U.S. at 687).
6
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the wide range of reasonable professional assistance.” 20 But counsel’s
“[s]ilence” “on matters of great importance, even when answers are readily
available,” is “fundamentally at odds with the critical obligation of counsel
to advise the client of ‘the advantages and disadvantages of a plea
agreement.’” 21 To be sure, in the habeas world of double deference, “‘the
question is not whether counsel’s actions were reasonable,’ but ‘whether
there is any reasonable argument that counsel satisfied Strickland’s
deferential standard.’” 22 Anaya claims that Bailey was silent on a matter of
great importance—Anaya’s entire defense—that would have radically
altered his plea decision. We agree, and conclude there is no reasonable
argument to the contrary.
Under Texas’s self-defense statute, juries are generally prohibited
from considering a defendant’s failure to retreat in assessing the
reasonableness of his belief that deadly force was necessary. 23 But there are
important caveats to that general rule. Relevant here, it only applies if the
actor was “not engaged in criminal activity at the time the deadly force [wa]s
used.” 24 If the actor was not engaged in criminal activity, the jury “may not
20
United States v. Kelly, 915 F.3d 344, 350 (5th Cir. 2019) (quoting
Strickland, 466
U.S. at 689).
21
Padilla v. Kentucky, 559 U.S. 356, 370 (2010) (quoting Libretti v. United States,
516 U.S. 29, 50–51 (1995)).
22
Mejia, 906 F.3d at 315 (quoting
Harrington, 562 U.S. at 105).
23
Tex. Penal Code Ann. § 9.32(d).
24
Id. § 9.32(c) (emphasis added).
7
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consider whether the actor failed to retreat,” 25 and the actor’s belief that
deadly force was necessary is “presumed to be reasonable.” 26 In contrast, if the
defendant is engaged in criminal activity at the time force is used, the jury
can consider his failure to retreat before using deadly force. 27 And such a
person’s belief that deadly force was necessary is no longer presumed
reasonable. 28
At the time of the shooting, Anaya was engaged in criminal activity
because he was a felon in possession of a firearm. As a result: (1) The jury was
permitted to consider his failure to retreat and (2) his belief that deadly force
was necessary was not presumed to be reasonable. The State made Anaya’s
failure to retreat central to its case, contending that, because Anaya was
driving a car when he fired his gun, he could have easily retreated.
Anaya claims that his decision to reject the State’s plea offer turned
on the viability of his self-defense claim. He admitted from the get-go that he
shot the victim, so his whole theory rested on self-defense. Anaya claims that
Bailey told him he had a “viable defense”—that Bailey would argue Anaya’s
conduct was reasonable because Anaya thought his life was in danger. But
Anaya avers that Bailey never informed him of the role his failure to retreat
would play at trial under Texas law. In fact, Anaya claims, Bailey told him
that “it did not matter or make a difference if [Anaya] had the ability to
25
Id. § 9.32(d) (emphasis added).
26
Id. § 9.32(b)(3) (emphasis added).
27
See id. § 9.32(c).
28
Id. § 9.32(b).
8
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retreat.” Anaya filed affidavits from himself, his wife, mother, and father—
each of which supports his assertion that he would not have rejected the plea
if he knew his failure to retreat would be presented to the jury. Bailey
submitted a responsive affidavit and argued that it was Anaya’s decision to
go to trial and that Bailey never guaranteed any result. But Bailey’s affidavit
didn’t even attempt to refute the accusation that he failed to correctly inform
Anaya about the role of retreat.
Bailey’s understanding of the self-defense statute was clearly wrong.
But was Bailey’s advice so gravely in error that he was acting outside the
“wide range of reasonable professional assistance?” 29 Running throughout
Strickland cases is a distinction between strategic choices, which are
“virtually unchallengeable,” 30 and “[a]n attorney’s ignorance of a point of
law.” 31 When ignorance of a key point of law is combined with failure to do
basic research, that’s a “quintessential example of unreasonable
performance under Strickland.” 32
Our Strickland precedent in the context of plea negotiations is clear
that a defendant must have “a full understanding of the risks of going to
trial.” 33 Otherwise, “he is unable to make an intelligent choice of whether to
29
See Kelly, 915 F.3d at 350.
30
Strickland, 466 U.S. at 690.
31
Hinton v. Alabama, 571 U.S. 263, 274 (2014).
32
Id.
33
Grammas, 376 F.3d at 436 (quoting Teague v. Scott,
60 F.3d 1167, 1171 (5th Cir.
1995)).
9
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accept a plea or take his chances in court.” 34 Plea negotiations are full of high
stakes and hard choices. Pitch perfect counsel is neither expected nor
required. But having competent counsel means being “aware of the relevant
circumstances and the likely consequences” of going to trial. 35 Counsel is
deficient when a defendant charges onward to trial “with a grave
misconception as to the very nature of the proceeding and possible
consequences.” 36
Anaya’s primary support is Padilla v. Kentucky. There, counsel told
the defendant that he wouldn’t be deported if he pleaded guilty to drug
distribution. 37 But the conviction required deportation, so his guilty plea
made “deportation virtually mandatory.” 38 The Supreme Court found that,
because the answer was readily available and the law was clear, counsel’s
“duty to give correct advice [was] equally clear.” 39 Anaya also directs us to
Lafler v. Cooper and Hinton v. Alabama. In Lafler, the defendant rejected a
plea offer because his counsel advised him that “the prosecution would be
unable to establish intent to murder [the victim] because she had been shot
34
Id. (quoting Teague, 60 F.3d at 1171).
35
Rivas-Lopez, 678 F.3d at 356; see also
Grammas, 376 F.3d at 436 (“When the
defendant lacks a full understanding of the risks of going to trial, he is unable to make an
intelligent choice of whether to accept a plea or take his chances in court.” (quoting
Teague,
60 F.3d at 1171)).
36
Beckham v. Wainwright, 639 F.2d 262, 267 (5th Cir. Unit B Mar. 1981).
37
Padilla, 559 U.S. at 359.
38
Id.
39
Id. at 369.
10
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below the waist.” 40 There, the Supreme Court did no analysis on the
performance prong because all parties agreed that counsel was deficient. 41 In
Hinton, the lawyer failed to request funding in order to replace an inadequate
expert because the lawyer mistakenly believed he had received all of the
funding he could get under Alabama law. 42 A “cursory investigation” would
have revealed that he could be reimbursed for “any expenses reasonably
incurred.” 43
Here, Bailey’s performance was deficient and there can be no
reasonable argument otherwise in light of Padilla, Lafler, and Hinton. 44 Anaya
couldn’t fully understand the risks of rejecting the State’s plea offer because
he didn’t know that his status as a felon in possession of a weapon would move
the goalpost at trial. Bailey’s silence on a “matter[] of great importance” was
“fundamentally at odds” with his critical obligation “to advise the client of
ʻthe advantages and disadvantages of a plea agreement.’ ” 45 And Bailey’s
failure to advise Anaya on the law of retreat wasn’t a strategic decision. There
were no difficult questions about how much to investigate or how to balance
40
566 U.S. at 161.
41
Id. at 163.
42
571 U.S. at 274.
43
Id.
44
Mejia, 906 F.3d at 315 (explaining 28 U.S.C. § 2254’s standard).
45
See Padilla, 559 U.S. at 370 (quoting
Libretti, 516 U.S. at 50–51); see also
id.
(noting that, under Strickland, there is “no relevant difference ‘between an act of
commission and an act of omission.’ ” ( q u o t i n g S t r i c k l a n d , 4 6 6 U . S . a t 6 9 0 ) ) .
11
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competing evidence. 46 Bailey knew Anaya was a felon in possession of a
weapon—thus engaged in criminal activity—and Bailey failed to advise
Anaya of the crucial difference that fact would make at trial.
Anaya’s whole defense was self-defense. This was the only issue at
trial. And Bailey’s silence on a central component of the self-defense statute
meant that Anaya couldn’t appreciate the extraordinary risks of passing up
the State’s offer. Under Strickland’s performance prong, Bailey’s
representation fell outside the “wide range of reasonable professional
assistance.” 47 Under § 2254(d)’s standard, the contrary conclusion would be
an unreasonable application of the Supreme Court’s precedent in Padilla,
Lafler, and Hinton.
B
Now, the prejudice prong, viewed again with the requisite double
deference. Here, Anaya’s claim fails. Under Strickland’s prejudice prong,
Anaya must show that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” 48 A “reasonable probability” is “a probability sufficient to
46
See Strickland, 466 U.S. at 690–91.
47
Kelly, 915 F.3d at 350 (quoting
Strickland, 466 U.S. at 689).
48
Lafler, 566 U.S. at 163 (quoting
Strickland, 466 U.S. at 694).
12
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undermine confidence in the outcome.” 49 It’s “less than a preponderance of
the evidence.” 50
In Missouri v. Frye, the Supreme Court established a three-part test for
demonstrating prejudice in the context of a rejected plea offer. 51 The
defendant must show that, but for his counsel’s error, there is a “reasonable
probability” that (1) the defendant “would have accepted the earlier plea
offer had [he] been afforded effective assistance of counsel”; (2) the “plea
would have been entered without the prosecution canceling it or the trial
court refusing to accept it, if they had the authority to exercise that discretion
under state law”; and (3) “the end result of the criminal process would have
been more favorable by reason of a plea to a lesser charge or a sentence of less
prison time.” 52
Here, the parties dispute what evidence is needed to demonstrate a
reasonable probability that these three parts of the Frye test are satisfied.
Anaya has compelling arguments, but ultimately the law is murky. Because
it’s possible that “fairminded jurists could disagree” over what is required to
49
Dale v. Quarterman, 553 F.3d 876, 880 (5th Cir. 2008) (quoting
Strickland, 466
U.S. at 693–94).
50
Id. (quoting Strickland, 466 U.S. at 693–94).
51
Frye, 566 U.S. at 147.
52
Id.
13
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demonstrate prejudice under Frye, Anaya cannot surmount the hurdle of
§ 2254(d). 53
We address each part of Frye’s prejudice test in turn.
1
First, would Anaya have accepted the plea offer? Anaya argues that
his unrebutted affidavit testimony is sufficient to show a reasonable
probability he would have accepted the plea but for his counsel’s erroneous
advice. According to the State, the Supreme Court made clear in Lee v.
United States that this standard cannot be met based purely on “post hoc
assertions from a defendant about how he would have pleaded but for his
attorney’s deficiencies.” 54 Rather, courts must “look to contemporaneous
evidence to substantiate a defendant’s expressed preferences.” 55 So, the
State argues, Anaya’s affidavits aren’t competent evidence.
But the State takes the above quotes from Lee out of context. The full
context makes clear that Lee imposed standards for overturning an accepted
plea deal, not standards for obligating the government to offer again a plea
rejected by the defendant. Here’s the Lee language in context:
Surmounting Strickland’s high bar is never an easy task, and
the strong societal interest in finality has special force with
respect to convictions based on guilty pleas. Courts should not
upset a plea solely because of post hoc assertions from a
53
See Harrington, 562 U.S. at 102 (explaining that § 2254(d) “preserves authority
to [provide habeas relief] in cases where there is no possibility fairminded jurists could
disagree that the state court’s decision conflicts with [the Supreme Court’s] precedents”).
54
137 S. Ct. 1958, 1967 (2017).
55
Id.
14
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defendant about how he would have pleaded but for his
attorney’s deficiencies. Judges should instead look to
contemporaneous evidence to substantiate a defendant’s
expressed preferences. 56
The State argues that the same considerations should apply to a
defendant, like Anaya, who rejected his plea. But the State is wrong. We can’t
export the Lee standard—the need for contemporaneous evidence—from the
context of “convictions based on guilty pleas.” Here’s why: The standard
for evaluating a Strickland claim when the defendant seeks to upset a guilty
plea was first laid out in 1985 in Hill v. Lockhart. 57 But, in 2012, the Supreme
Court issued two opinions on the same day—Lafler v. Cooper and Missouri v.
Frye—that governed Strickland analysis in the context of rejected plea offers.
In Frye, the Court was careful to note that Hill was still good law when applied
to upsetting convictions based on accepted pleas. 58 But the Court explicitly
disavowed a single “means for demonstrating prejudice . . . during plea
negotiations.” 59 And the Court formulated a new, unique prejudice test for
our context here—rejected pleas. 60 The Court’s application of that new
prejudice standard in Lafler makes clear that Lee is inapposite.
In Lafler, the Supreme Court didn’t do its own prejudice analysis;
instead, the Court relied on the Sixth Circuit’s reasoning under the prejudice
56
Id. (emphasis added) (cleaned up).
57
474 U.S. 52 (1985).
58
Frye, 566 U.S. at 148.
59
Id.
60
Id.
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prong. 61 There, the defendant relied only on his “uncontradicted” testimony
that “had he known that a conviction for assault with intent to commit
murder was possible, he would have accepted the state’s offer.” 62 And the
Sixth Circuit rejected Michigan’s argument—identical to the State’s
argument here—that the defendant “cannot show prejudice with his own
‘self-serving statement.’” 63 Moreover, the Sixth Circuit explained that even
if the defendant’s assertion needed independent corroboration, the
“significant disparity between the prison sentence under the plea offer and
exposure after trial lends credence to petitioner’s claims.” 64 The same is true
here. And this rationale was affirmed by the Supreme Court.
Plus, if the Lee Court wanted to augment the prejudice test articulated
in Frye and Lafler, one would expect the Court to have connected the dots.
But Lee—decided five years after Lafler and Frye—didn’t even cite Frye and
only once cited Lafler. The Lee dissent, however, heavily discussed both. And
the majority responded in a footnote:
The dissent also relies heavily on [Frye and Lafler]. Those cases
involved defendants who alleged that, but for their attorney’s
incompetence, they would have accepted a plea deal—not, as
here and as in Hill, that they would have rejected a plea. In both
Frye and Lafler, the Court highlighted this difference . . . . Frye
and Lafler articulated a different way to show prejudice, suited
61
Lafler, 566 U.S. at 174.
62
Cooper v. Lafler, 376 F. App’x 563, 571 (6th Cir. 2010) (unpublished).
63
Id.
64
Id.
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to the context of pleas not accepted, not an additional element
to the Hill inquiry. 65
Lee affirmed what Frye and Lafler made clear: Accepted and rejected pleas arise
in different contexts and require distinct tests. So Lee’s requirement for
contemporaneous evidence is simply irrelevant in this context. There may be
other reasons to doubt Anaya’s affidavits, but their non-contemporaneous
nature is not a problem under Frye and Lafler. Anaya could potentially satisfy
part one of Frye’s prejudice test with the affidavits he has provided.
2
On to part two: Would the plea have been entered? Under this part of
Frye’s test, Anaya must demonstrate that his “plea would have been entered
without the prosecution canceling it or the trial court refusing to accept it, if
they had the authority to exercise that discretion under state law.” 66 The
district court concluded that the record was “silent” on these two questions,
so Anaya failed to show a reasonable probability that this part of the Frye
prejudice test was satisfied. And this is where the law gets too murky for
Anaya to convincingly demonstrate an unreasonable application of federal
law. Anaya argues that part two of Frye’s prejudice test is satisfied if there is
no “particular fact” or “intervening circumstance” that would cast doubt on
65
Lee, 137 S. Ct. at 1965 n.1 (emphasis in original); see also
Lafler, 566 U.S. at 163–
64 (“In contrast to Hill, here the ineffective advice led not to an offer’s acceptance but to
its rejection. Having to stand trial, not choosing to waive it, is the prejudice alleged.”);
Frye,
566 U.S. at 148 (“Hill does not, however, provide the sole means for demonstrating
prejudice arising from the deficient performance of counsel during plea negotiations.”).
66
Frye, 566 U.S. at 147.
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the presumption that the prosecution would have maintained the offer and
the court would have accepted it. His contention appears to be that his
burden here is simply to point to the record and show the absence of these
particular facts or intervening circumstances. The State’s primary response
is that it is Anaya’s burden to show that the plea would have been entered.
But Anaya doesn’t disagree with the State on who bears the burden; his fight
is over what he needs to show to satisfy that burden. The State doesn’t
propose an alternative theory or suggest what evidence would suffice, other
than to argue that Anaya must provide affirmative proof that demonstrates
there are no particular facts or intervening circumstances.
The governing cases are not a paradigm of clarity. In Frye, the Court
explained that if the prosecution has discretion to cancel an offer or if the trial
court has discretion to refuse it, defendants must show “there is a reasonable
probability neither the prosecution nor the trial court would have prevented
the offer from being accepted or implemented.” 67 The Frye Court then
provided a framework for conducting this inquiry:
It can be assumed that in most jurisdictions prosecutors and
judges are familiar with the boundaries of acceptable plea
bargains and sentences. So in most instances it should not be
difficult to make an objective assessment as to whether or not
a particular fact or intervening circumstance would suffice, in the
normal course, to cause prosecutorial withdrawal or judicial
nonapproval of a plea bargain. The determination that there is
or is not a reasonable probability that the outcome of the
67
Id. at 148.
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proceeding would have been different absent counsel’s errors
can be conducted within that framework. 68
If this were a case involving a non-deferential standard of review, we would
need to explore this question in more depth.
However, we must apply the doubly deferential standard of § 2254(d)
to our Strickland inquiry. And under § 2254(d), “an unreasonable application
of federal law is different from an incorrect application.” 69 To obtain relief,
Anaya must show that the state court’s ruling “was so lacking in justification
that there was an error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” 70 As the Supreme
Court has made clear, this standard is hard to meet “because it was meant to
be.” 71 Section 2254(d) authorizes us to grant habeas relief only “in cases
where there is no possibility fairminded jurists could disagree that the state
court’s decision conflicts with [the Supreme Court’s] cases.” 72 That’s the
extent of our authority. 73
We had no trouble concluding that Anaya satisfied § 2254(d)’s heavy
burden on Strickland’s performance prong. But here, assuming Anaya’s view
of the Frye framework is correct, it is not “well understood and
68
Id. at 149 (emphasis added).
69
Will. v. Taylor,
529 U.S. 362, 365 (2000) (emphasis in original).
70
Harrington, 562 U.S. at 103.
71
Id. at 102.
72
Id.
73
Id.
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comprehended” that defendants bear no burden to supply affirmative proof
that the prosecution would not withdraw the plea or that the court would
have accepted it. Our own precedent is clear that Anaya carries the burden to
make this showing. 74 But we have never articulated how a defendant does
so—whether affirmative evidence is needed. And Anaya points to no
published case from any circuit that absolves the defendant of the need to
supply affirmative proof of some kind.
Anaya has no doubt satisfied the third part of the Frye prejudice test—
that “the end result of the criminal process would have been more favorable
by reason of a plea to a lesser charge or a sentence of less prison time.” 75 But
because the law on the burden of proof in part two of Frye’s prejudice test is
not so clear as to foreclose the possibility of fairminded disagreement, we
cannot grant Anaya the relief he requests.
IV
For these reasons, we AFFIRM.
74
Rivas-Lopez, 678 F.3d at 359 (“[T]here is a burden on [defendant] to show that
there was a reasonable probability that the prosecution would not have withdrawn the plea
offer and that the court would have accepted its terms.”).
75
See Frye, 566 U.S. at 147. Part three is easily satisfied here: The plea offered
Anaya 30 years for murder and 15 for aggravated assault. His ultimate sentences were for
40 years and 99 years respectively.
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