Pelloat, James Allen

• Court: Court of Appeals of Texas
• Decided: July 15, 2015
• Docket: WR-75,934-08
• Status: Published

Opinion

Clerk Court of Criminal Appeals P.O. Box 12308 Capitol Station Austin, Tx~ 78711 C.M.R.R.R.# 7014 2870 0001 6610' 6407

.:JJ.:in~ 28, 2015 Re: Relators Leave of Court to iile Mandamus Petition. for Writ of Mandamus TEX~ R. APP. p. 9 .J (b}(l) Trial Co~rt Nd'~ 5591;5593 and 5617 1A'Judicial District Cqurti~N~wtbn County Texas RECEIVED IN . COURT OF CRIMINAL APPEALS Styled: Jarnes Allen Pelloat, R~lator JUL 15 2015 ·Jerome ·P~··•:gwens, Judge,, . Respondent - . .

Dear Cl~rk,' Court• of CriminaLAppeals of Texas; Abe\ Acosta, Clerk· . . .

By recedpt,. pl,eas·E:· finq. enclosed one original copy of Relators Mcitioti' for·· Leave to· file Writ·· of Maildairn.is as well .as Relators Peti ton fOr Writ ··of :Mandams ·.including his App~ndix. ·.· ·. · · · . . . . . .. . Because this is a pleading pursuant,to,TEX. C,ODE'CRIM~ .PROC. art. 11.07, ., I .have included ' . only' .one copy.· \ . : .

Please file' a~d bring'·i:o the Courts attention so that it may ·consider and is sue a ruling. · ·

Thank you·· in .advance for your kind and prompt attention in this matter . .•.: . . . . . . . .

i~~-~~-~~ Jam~s Allen Pelloat, Relator pro se C. T •. Terrell Unit," 1289716 · 1300 FM 655 Rosharon;, Tx. 77 583

cc. Jerome P. Owens, Respondent District Attorney, Newton County Texas (LESS EXHIBITS AND APPENDIX)

ENCLOSURES: . B:XHIBITS 1- Lf·

APPENDIX 1- 5.3 IN THE COURT OF CRIMINAL APPEALS OF TEXAS

TRIAL COURT NUMBERS 5591; 5593 AND 5617

JAMESALLEN.PELLOAT, Relator

vs.

JEROME P. OWENS, JUDGE, 1A DISTRICT COURT;·. NEWTON COUNTY TEXAS, Respondent

RELATOR'S MOTION FOR LEAVE OF . COURT TO FILE. PETITION FOR . . - . WRIT OF MANDAMUS TO COMPEL RESPONDENT TO ORDER DISTRICT; CLERK . . . . . . .

TO PROCEss· APPLICATIONS'fORWRIT'OF HABEAS CORPUS'PURSUANT

TO TEX~ CODE CRIM.· PROC. art. 11.07 ·.,_ ! '.

;~***-,''**-,''*********1'*-1'********'**'*******-;'(*******"'~-***-1'*****"'~'**.,''**""'*****

JAMES.ALLEN PELLOAT,-RELATOR PRO SE C. T. TERRELL UNIT', '1289716 t300 FM·655 . ROSHARON, TX~ 77583 5591; 5593 AND 5617

JAMES ALLEN PELLOAT, Relator .§ IN THE COURT. OF CRIMINAL APPEALS

v. JEROME P. OWENS, Judge, . Respondent § OF. TEXAS

RELATOR'S MOTION FOR, LEAVE. OF' COURT FOR' WRIT' OF' MANDAMUS

TO COMPEL' RESPONDENT TO' ORDER' DISTRICT'' CLERK. TO' PROCESS .

APPLICATIONS FOR WRIT OF HABEAS CORPUS· PURSUANT 'TO TEX.' CODE.

GRIM. PROC·~ art. 11.07

TO THE. COURT OF CRIMINAL APPEALS. OF 'TEXAS:

JAMEs· ALLEN. PELLOAT, Relator in the above T.rial Court Numbers .. . . seeks Leave of .Cburt to File.Petitibn for;Writ of-Mandamus tb Compel

Respondent, Honorable· Jerome P .. Owens, Presiding -Judge of the 1A

Judicial District. Court, Newton County· Texas, to. Order· District

Clerk of·Newt9n County,_ Texas \to Process Applications for Writ of

Habe.as Corpus, pursuant to TEX~ CODE GRIM. PROc;·.·art. 11.07~ In

support Relator states that this Court has· Jurisdiction pursuant to

TEX. CODE GRIM. PROG~ art. 11.07 § 3(.a)

Relator has no other remedy in law.

PRAYER

WHEREFORE PREMISES. CONSIDERED, Relator prays thi_s Court of

Criminal Appeals grant him lea~e to proceed with this P~tition.

i~--~_._c;t_~-- James Allen P~lloat, Relator pro se C. T. Terrell Unit, 1289716 1300 FM 655 . Rosharon, Tx. 77583

-1- CERTIFICATE OF SERVICE I certify that a true and. correct copy of Relator's M~tion for Leave of Court for Writ of Mandamus to Compel Respondent to Order District Clerk to Process Applications for Writ of Habeas C~rpus Pursuant to TEX. CODE GRIM. 'PROC. art. 11.07 was sent to the below by U.S. Mail first class postage pre paid on this' the·~~k'~day of :>-"~~ ' 2015

Honorable Jerome P. Owens, Judge lA Judicial Di~trict Court, Newton County Texas 203: Courthouse, 2nd ...: Floor Woodville, Tx. 75979

District Attorney, Newton County Texas lA J~dicial District Court 203 Counthouse Woodville, Tx. 75979

-2- IN THE COURT OF CRIMINAL APPEALS OF'TEXAS

TRIAL COURT. NO'.S . 5591; 5593 AND 5617

JAMES ALLEN PELLOAT,- Relator

JEROME: P. OWENS; JUDGE,· 1A DISTRICT. COURT,. NEWTON COUNTY TEXAS, Respondent

RELATOR'S. PETI'ITON FOR WRIT 'OF 'MANDAMUS TO COMPEL RESPONDENT

TO ORDER ·DISTRICT .CLERK TO ·PROCESS. . ·.. APPLICATIONS . . . FOR .WRIT .. ·. OF

HABEAS CORPUS PURSUANT TO' TEX'~ CODE CRIMo' PROC •. art. 11.07 : ,·.·

JAMES ALLEN PELLOAT, RElATOR ~RO SE C.T~ TERRELL UNIT~ 1289716 13.00 FM 655 ROSHARON, TX. 77583 5591; 5593 AND 5617

JAMES ALLEN PELLOAT, Relator § IN THE COURT OF

v. § CRIMINAL . APPEALS

JEROME P~-OWENS, Judge Responden.t.u . ; :.§ OF TEXAS

RELATOR'S PETITION FOR WRIT OF.MANDAMUS·TO COMPEL RESPONDENT ' ! • • · ... • - . •

TO ORDER DISTRICT CLERK.TO PROCESS APPLICATIONS FOR WRIT OF

HABEAS CORPUS PURSUANT To· TEX. CODE C'i~.-IM~>:'PROC~ art .. 11.07

TO THE COU:RT OF CRIMINAL APPEALS OF TEXAS::· . . $e '\

JAt>:tES A.~LEN . PELLOAT, : Rela•to:f ;pr9 in' the above Tria.l Court

numbers ·seeks this Court ·of. Criminal _Appe~ls to order the Respondent . ,I•.

' Jerome' P~ Owens, Judge of. the 11\ Judicial District Court, Newton

. County Tex·as . to· order the District Clerk of Newton Cou~ty Texas to

process Relators ·Applications for Writ. of Habeas Corpus pursuant· to

.· the statu tory :tequiremen ts of TEX. CODE CRIM. P~OC~ ~rt. 11.07 that

has ~~en. file4 since J4ly 11; 1dizand not otherwise pro~~s~ed as

required by l~w~ · In supper~~ Relatoi will ·show just cause as to

why Mandamus should issue:

JURISDICTION

This Court of Criminal Appeals .has jurisdiction pursuant to

the TEXAS STATE CONSTITUTiON Article V § 5 in all criminal matters.

STATEMENT DF THE CASES 1. On July 11, 2012, Relator, . a State prisoner who is being

confined pursuant to the above case numbers submitted his Amended

Applications for Writ of Habeas Corpus which were subsequently

l • See Appendix at 15

-1- file marked by the District Clerk of Newton County and copies were returned to the Relator. On October 18, 2012 and November 12, 2012. Relator wrote the District Clerk of Newton County to inquire into the disposition of his pending Applications for Writ of Habeas Corpus Appendix 16-17 and has not received ~ny response from his inquiries. Finally on Dec~mber 10~ 2014, Rel~tor submitted to the Presiding Judge of the 1A Judicial District Cbu~t of Newton County, T~xas (Convicting Court) his Motion entitled as : Applicants Motion to Compel Trial Court Judge to Order District Clerk ta Proc~ss

Amended Application for Writ. of Habeas. Corpus Filed J:uly 11, 2012 and brief in suppqrt in Tri~l·Court Numbers 559L; 5593 and 5617. : . . The above Motion was sent to Ju~ge Jerome P.·owens by certified Mail, Return Rec:eipt Requested in which Relator asked for a file- 2. marked copy of the letter presenting the Motion to Compel. On April 13 ,· 2015, Relator sent another iet'te.r to the Presiding Judge of the 1A Judicial District Court, Newton· County Texas, again. making an inquiry ihto the disposition of his Motion to Compel See Exhibi.t-2 . Relator. advised the Respondent, Judge Jerome P. Owens that he would wait 1fr days before seeking Mandamus.

ARGUMENT IN' SUPPORT OF MANDAMUS Relator submits to this Court of Crimina~ Appeals his Appendix in which he moves this Court adopt as presented to the Respondent·

2. There are Two ( 2) records attached herein for this Court to· consider: Exhibits and Appendix. The Appendix follows the Exhibits such as. Exhibit;..l.: Applicants· Mbt-i·on to; ·Compel, Returned file marked•. copy ·.of ·letter presenting.. Moti'oh' to. Cdmpel.; Envelope. and Green .Card"a~knowledging Receipt. · ·

-2- on December 10, 2014. The only exceptions to the already submitted Appendix to the Respondent are copies of an inquiry that Relator

made to the Texas State Law ·Lib~ary to determine whether or not

h~s Applications had already be~n disposed of by this Court and are

incorporated .herein as Exhibit-3: Letter-· to Texas.-State . Law ·Library;

Response and Index' o.f Applications. [;

:L ~; · Rel:~toi'.; has not 're~eived any- tiM'Jflonse by Respondent at the date of submission of this Petition for Wtit of Mandamus.

Relator contends that he ~s entitled tb·Mandamus relief for

this Co~rt of Criminal Appeals to ord~r Respondent, Judge Oweps of.

the 1A Judicial Di~trict Court, Ne~ton County Texas to 6rder. the

D~strict Clerk of Newton County Texas to process the already late ·Applications for Writ of Habeas Corpus.

Relator has no ot;.ber remedy at law to redress the alleged harm

and under relevant law and factsi the act sotigh~ to be compelled is purley ministeriai and n~t involving· a discre~lonary or.judi~ial --.----- - --- -- - - --------------------------- ---- -------- ------------------ - -- -- -------~ ~-

decision State ex rel~·Yobng·~~ Sixth Judicial District Cotirt of

Appeals, 2-36 s ~w. 3d '207, 210: (Tex. Grim. App. 2007)(0riginal

proceedings)

Relator.further contends that the act is ministerial if it does

not involve the exercise of any discret~on and the.Relator ha~ a

clear right.to relief State ex. rel. Hill v~ Court df Appeals for

the Fifth Di~trict, 34 S.W. 3d 924, 927 (Tex. ·crim. App. 2001)( ·

Or~ginal proceedings); In re Daisy, 15.6 s.w. 3d 922, 924 (Tex. App.-

Da1las 2005 orig. proceeding)

Pursuant to the Rules of Judicial Administration, Rule 7 states

a: A District or Statutory County Court Judge shall (6) to the

-3- extent consistent with safeguarding the rights of litigant to the just processing of their cases on the docket of .the Court, including .(e)local rules, consistently applied~ to regulating 1

procedures and timely'pleadings, discovery·and motions See TEX. GOV. CODE§ 74.024, Rule 7 (6)(e) The District.Clerk is required to file the Applications and to process them according to the provisions of TEX. CODE CRIM. PROC. art. 11.07 § 3(b) ' Relator has had ho alternative but td go through the presiding Judg~ of the convicting .Court and rely on the Judge~ to order the . ·. . . .. District. Clerkcof N~wton Couhty Texas. to process his Applications __ for Writ of Habeas Co~pu~ pursuant to TEX: CODE.CRIM. PROC~ art. 11.07 § 3 (b) .. CONCLUSION Relator ha~ previOusly submitted his Motibri to Compel to the Respondent with no apparant relief consistent with his duty as a Distr~ct Judge and th~ administration of his docket. Relator presented his Motion to Compel in the orderly manner as is required by law~

Rel~tor moves that Mandamus should issue to compel the Presiding Judge to order the District Clerk of Newton County Texas to process his Applications for Writ of Habeas Corpus as.required by law.

PRAYER WHEREFOREPREMISES'CONSIDERED, Relator prays for relief that is consistent with his argument, Exhibits and Appendix as presented, that Mandamus will issue.

-4- 3. art~ 11.07 § 3 (b) Respectfully Submitted,

James Allen Pelloat, Relator pro se C.T·. Terrell UNit, 1289716 1300 FM .655- - - Rosharon, Tx. 77583 UNSWORN-DECLARATION. I, Jame~ Allen Pelloat, an Offender incarcerated at the C.T: Terrell Unit located in B±azoria County T~xas declare and verify that the cbntents he~ein are true and correct under penalty of perjury. Done· on this the ?::b'~ day of -:s"~~ , 2015 _Q - ~G&~--~· ~~------~------~~~ Jam~sAllen Pelloat, Affiant C.T. Tetrell Unit, 1289716 1300 FM 655 Rosharon, Tx. 77583

CERTIFICATE OF SERVICE I certify that a true and corre~t copy pf Relators Petition for Writ of Mandamus to Compel Respondent to -:··.i-::, District Clerk to Process Applications for .Wtit of Habeas ~brpus Pur~uant to TEX." CODE GRIM, PROC. art. 11.07 was sent to the bela~ by U.S. Mail, first class, postage pre paid on this the ?=~~ day of -:r.:~~ ~ 2015

Jerome P. Owens, Judge 1A Distri~t Court, Newton County Texas 203 Courthouse, 2nd. Floor Woodville, Tx. 75979 District Attorney, N~wton County Texas 1A District Court 203 Co1i:t:t~ho~.u.!3·e-: •. · Woodville, Tx. 75979

2~--~--8-~-- James Allen Pelloat 3, See Exhibit-4 : Letter dated May 27, 2015; Texas--st'ate Law Library in reference to Index for AP-76,779 (entire file) In an abundance of caution, Applicant submitted to the Texas State Law Library his inquiry into the contents of AP-76, 779 See Also_. Ex Parte Kerr, 64 S.W. 3d 414, 419 (Tex. Court Grim. App. ZUU2)(TbiS Court stated that Applicant had only one bite of the apple) See & Com~are . Applicant's Exhibit's 3;4 (Denying Applicant that bite)TEXAS STATE CONSTITUTION, Article One ~Nineteen·) (Denying Due Process of the Law of the Land) -5- INDEX OF EXHIBITS

EXHIBIT~!: APPLICANTS MOTION TO COMPEL: RETURNED FILE MARKED COPY OF LETTER PRESENTING MOTION TO COMPEL; ENVELOPE AND GREEN CARD ACKNOWLEDGING RECEIPT; EXHIBIT.;.2: APRIL 13, '2015 LETTER T0 .;JUD§E 0WENS '(RESPONDENT) GREEN CARD ACKNOWLEDGING RECEIPT EXHIBIT~3: LETTER TO TEXAS 'STATE LAW LIBRARY; RESPONSE AND INDEX OF APPLICATIONS EXHIBIT-4: LETTER FROM TEXAS STATE LAW. LIBRARY, DATED MAY 27, 2015 IN6EX FOR AP 76,779 EXHIBIT-1

APPLICANTS MOTION TO COMPEL; RETURNED FILE MARKED COPY OF LETTER PRESENTING MOTION TO' COMPEL; ENVELOPE AND GREEN CARD ACKNOWLEDGING RECEIPT

( 9 . PAGES ) Honorable Jerome P. Owens, Judge 1-A Judicial District Court, Newton County Texas 203 Courthouse, 2nd. Fl. Woodville, Tx. 75979

C.M.R.R.R.# 7011 0110 0002 1573 0007

December 10, 2014

Re: Applicants Motion to Compel Trial Court Judge to Order District Clerk to Proc~ss Amended Application for Writ of Habeas Corpus Filed July 12, 2012 and Brief In Support Trial Court No's 5591, 5593 and 5617 1-A Judicial District Court, Newton County Texas

Styled: Ex Parte James Allen Pelloat

Dear Judge Owens: Please find enclosed One original copy of Applicants above entitled motion, including his Appendix 1-55

Please file and bring it to your Courts attention as presented.

I am also enclosing an extra copy of this letter with a self addressed stamped envelope so that you may file mark the same and return it to me for my records.

Thank you in advance for your kind and prompt attention in this matter.

&~-~S?._~ James Allen Pelloat, Applicant pro se C.T. Terrell Unit, 1289716 1300 FM 655 Rosharon, Tx. 77583

ENCLOSURES: As set out above ;~:(j,s~ Post~:n' Service rr.;--~·-·':-.:: ·:·- " -·- ._:,- -- _· ~;··>~ :_·ceR:ti~IEt> IVIAILM REQE~P"'t _ ~ _·_ : -___ ; _: (!)omestic·Mail Only;Nq lns(!rance.Coveragft Prqvided) :' .

COPY ORIGINAL FILED DEC 2 :J 2014 BREEALLEN District Clerk, Newton Co. ,. ...-.--.:~w--~::""'"-~~-·-,\~·~t:r.""o. 4. ~ ~-...:·.:-~~·-~~- ..... ~.::.>""'=-',..._,..~·~"'.--~~~~.:J:>:::;~~Y--·t;:;:o;;::...,..._,_...,_.~-~.,::.:;;,....-..--.:.~-=--··· _ .. ~~_.._...-.,.,==--~--- ·-·~~-"""'"""'"'-' __________ ,~---

HONORABLE JEROME P. OWENS, JUDGE 1-A JUDICIAL DISTRICT COURT, NEWTON COUNTY TEXAS ~t~P./()t~(·!r-t:!. -~~~i~()ii~..J.:,s:~r1~)~;1f2 :tJ..:~.~{ 7/..-;~· .~. LO~ COURTHOUSE, 2ND. FL. WOODVILLE, TX.. 75979 3LJ '[)f~C:. ·.=l:i:fl9· .r:!~~i 4~ .t.

\,-s- \S (\u~ ~ JAMES ALLEN PELLOAT C.T. TERRELL UNIT, 1289716 1300 FM 655 ROSHARON, TX. 77583

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., :J No.5594 JAMES ALLEN PELLOAT § IN THE 1-A JUDICIAL DISTRICT § COURT AT EX PARTE, APPLICANT § NEWTON COUNTY, TEXAS MOTION TO COMPEL TRIAL COURT JUDGE TO ORDER DISTRICT CLERK TO PROCESS AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS FILED JULY 12, 2012 AND BRIEF IN SUPPORT TO THE PRESIDING JUDGt, 1-A JUDICIAL DISTRICT COURT: JAMEAS ALLEN PELLOAT, Applicant pro se in the above styled and numbered case presents this his first motion to compel Trial Court Judge, Honorable Jerome P. Owens to order the District Clerk of Newton County, ..Texas to process his Amended Application for Writ of Habeas Corpus as required by Tex. Code Crim. Proc. art. 11.07 that has been filed and pending since July 12, 2012 without due process of la~: In support, Applicant will show the.presiding Judge good cause as to why his motion and accompanying brief in support should be incorporated within that Amended Applicatiqn for consideration: STATEMENT OF THE CASE Applicant was convicted in the above numbered case for felony conduct as follows: " did then and there, intentionally or knowingiy, while an employee of a public secondary school, engage in sexual contact with Thomas Kinghton, a person then enrolled in the secondary school at which the Defendant worked, and Thomas Knighton was not th€ D€f€ndant's spouse" Applicant was represented by retained counsel, Honorable WilliamS. Morian Jr., a licensed attorney, licensed in this state. 1. Texas State Constitution, Article One, Section Nineteen

-1- The above Application was submitted by Applicant on April 11, 2011 and filed by the District Clerk, Newton County Texas on April 2. 14, 2011, in conformity with TEX. R. APP. P. See TEX. R. APP. P. 73.4

The record was transmitted to the Court of Criminal Appeals and assigned Writ number:;#. 7 5, 934-04 On June 22, 2011, the Court of Criminal Appeals of Texas issued an order (Per curiam) See Appendix at 1-3 that ordered the Trial Court to make findings of fa,ct as to whether Applicants · counsel was aware that the statute making improper relationship between an educator and a student a crime was enacted in 2003 (Ordering trial counsel to provide an affidavit responding to Applicants claim of ineffective assistance of counsel) Appendix at p. 2 On July 29, 2011, retained counsel filed his affidavit See Appendix 4-6 and on 9;;:26,;:2011, the Trial Court submitted its finding of fact and conclusions of law, recommending that relief be denied SeeAppendix at. p. 7-10 On February 15, 2012, The Court of Criminal Appeals of Texas issued another order (Per curiam) ordering: "We have held that the State may 'waive an illegal portion of a judgment and maintain the remainei\,:Y of the plea agreement'" (Determining that the complainant in the 53 case was no longer a student at the school where Applica~t taught at the time the statute making improper relationship between educator and student an offense was enacted)

-----------------··-------------------------------------~---~------- 2. The Court of Crimil·al Appeals of Texas consolidated all of Applicants Applications into 0t1.e order.

-2- The Court of Criminal Appeals of Texas further ordered the Trial Court to determine whether the State wishes to accept such a ... ""\ .... ~ '

modified plea agreement or whether the State wishes to have the entire plea undone Appendix at. p. 11-lJ On March 8, 2012, the Trial Court issued a Supplemental Finding of Fact See Appendix at. ~4, advising the Court of Criminal Appeals of Texas that the State accepts the plea agreement as modified Appendix at.12 .. (2) On July 1.1, .2012, Applicant submit ted his Amendment to Original Habeas Corpus See Appendix at 15 - (ND-559ll7A; 5593-A; 5617-A ) On October 18, 2012 and on November 12, 2012, Applicant notified the District Clerk, Newton County of the disposition of his pending Amendemen t to Original Habeas Corpus with no response See Appendix at 16-17 (Letters to District· Clerk, Newton County Texas) APPLICANTS BRIEF IN SUPPORT OF MOTION TO COMPEL

Applicant moves this Court take judicial notice of the Clerks Record in Writ No's 75,934-01 thru 75,934-04, pursuant to TEX. R. EVID. 201 (d) for purposes of this Brief (Memorandum). Texas case law cleraly states that in a Writ of Habeas Corpus the Applicant is entitled to One (1) Application by which the Court of Criminal Appeals will consider, but that in that Application, the Applicant must bring to the Court [a]ll issues to be resolved as the Applicant can only take one bite of the apple. See Ex Parte Kerr, 64 S.W. 3d 414, 419 (Tex. Crim. App. 2002) In Applicants Clerks Record transmitted to the Court of Criminal Appeals, the District Clerk of Newton County Texas

-3- indexed that Application, in particular, BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS See CLERKS Index at 13-77 This Brief in support brought to the attention of the Trial Court and the Court of Criminal Appeals that Applicants plea was involun·tarty C.R. at 29-34 and that his counsel was ineffective C.R. at 34-39 Applicant stated that but for counsel~b~ing~ineffective he would not have accepted the plea and taken the cases to trial. C.R. 32 (But for counsels errors, he would not have pleaded guilty and would have insisted on going to trial) CAUSE AND PREJUDICE Applicant contends that counsel was ineffective pecause he did not know the law that was in effect and that because he failed to investigate caused him to be convicted, caused him to accept the plea. LAFLER V. COOPER, 132 S.CT. 1376 (2012) Lafler v. Cooper, 132 S.Ct. 1376 (2012) was argued before the United States Supreme Court on October 31, 2011 and decided on March 21, 2012 See Appendix at:18-41in that a Defendants are entitled to effective assistance of counsel during the plea bargain process citing Strickland v. Washington, 104 S.Ct. 2052 (1984) Just before Lafler v. Cooper_was decided, the Court of Criminal Appeals decided Ex Parte Moussazadeh, 361 S.W. 3d 684 (Tex. Grim.· App. 2012) In Moussazadeh, the Court held that counsel was ineffective because he did not know the parole law that was in effect for

-4- purposes of the plea bargain agreement See Appendix at 42-52,

Applicant stated that "But for the erroneous advise of counsel,

the Applicant would not have pled guilty Slip Opinion at 8.

Appendix at 49, The Court further stated that "Both failure to

provide correct information and providing incorrect information

violated that duty" (Assistance of counsel) Slip Opinion at 9,

Appendix at 50 Moussazadeh was decided February 15, 2012 in which JOHNSON J.

delivered the opinion of the Court at which PRI~E, WOMACK, KEASLER

HERVEY, COCHRAN and ALCALA JJ. joined. KELLER P.J. filed a

concurring opinion, Meyers J. did not participate. Slip Opinion

at 1, Appendix at 42

This Court issued its order by which it ordered the Trial

Court to determine whether the State wishes to accept such a

modified plea agreement or whether the State wishes to have the

entire plea undone Appendix at ·12 ~ 2 L'De~piite Applicants assertions that but for counsels errors, he

would not have accepted the plea of guilt and gone to trial.C.R.

29-34; C.R. 34-39 Both Moussazadeh and Applicants order were issued on February

15, 2012 and Applicant might have benefitted from that opinion but for some reason, that opinion wa~ withh~ld.

Applicant claims that after the Trial Courts Supplemental

Findings of Fact of March 8, 2012, he did not hear ba~k from the

Trial Court or the Court of Criminal Appeals insofar as a final

-5- opinion or a mandate from the Court of Criminal Appeals, thus, he

filed his Amendments to the Original Habeas Corpus.

If Applicant is only entitled to one bite of the apple and

the Court of Criminal Appeals found that Applicant was entitled to

relief, but not enough relief to be consistent with the holding in

Lafler v. Cooper or the holding in Ex Parte Moussazadeh, despite

the fact that both cases reached the same conclusion that counsels

advise was bad and that such bad counsel violated his right under

the Sixth Amendment, both were entitled to relief.

This Court must bear in mind that Applicant made his claim

prior to th~ decisions in Lafler v. Cooper and Ex Parte Moussazadeh

and therefore should be entitled to the same consideration.

No-one can:1l

Applicant by which he clearly stated that he would have taken his

cases to trial.·

CONCLUSION

The District Clerk of Newton County Texas has a duty to file

and bring the Applications for Writ of Habeas Corpus to the Courts

attention and that of the counsel for the State of Texas but has

not done so.

Applicant moves this Court order the Applications, Amended as

they may be processed as a matter of law or returned for non ~o

compliance, bearing in mind that Applicant has never received a

final decision from this Court or the Court of Criminal Appeals in

his Applications.

In any event, this :Court must so order.

-6- In conclusion, the Trial Court, the Presiding Judge of 'the

Trial Court should so order the District Clerk to process' the

Amended Habeas Corpus as presented. "' PRAYER

WHEREFORE PREMISES CQNSIDERED, Applicant prays this Court

order the Disteict Clerk of Newton County; Texas to proc~ss his

Amended Habeas Corpus as presented, or as a alternative order a

hearing with Applicant prese~t so that he may articulate what

constitutional violations have been done in these applications.

Respectfully Submitted, ~~~@~ -~~---------------------~--- James Allen Pelloat, Applicant pro se C.T. Terrell Unit, 12&9716 1300 FM 655 Rosharon, Tx. 77583

-7- !

EXHIBIT-2

APRIL 13, 2015 LETTER TO JUDGE OWENS ( RESPONDENT)

GREEN CARD ACKNOWLEDGING RECEIPT

( 2 PAGES ) Honorable Jerome P. Owens, Judge 1-A Judicial District Court, Newton County Texas 203 Courthouse, 2nd. Floor Woodville, Tx. 75979

C.M.R.R.R.# 7013 2630 0001 1653 0158

District Attorneys Office P.O. Drawer 36 Newton , Texas 75966

April 13, 2015

Re: Request for Ruling on Applicants Motion to Compel Trial Court Judge to Order District Clerk to Process Amended Application for Writ of Habeas Corpus Filed July 12, 2012 and Brief in Su~port Trial Court No's 5591; 5593; 5617 Trial Court No. 1-A Judicial District, Newton County Texas.

Dear Judge Owens:

On December 10, 2014, I served you with a copy of the above by Certified Mail, Return Receipt Requested # 7011 0110 0002 1573 0007 and requested that you file mark in your Court and issue a ruling as presented. On approximately December 31, 2014, the copy of the letter was returned file marked December 29, 2014.

Your Honor, It has been well over 90 days since the above pleadings have been pending in your Court. 90 days is considered to be a reasonable amount of time for your Court to consider and iisue a ruling. The ruling in question is merely that pursuant to the statutory provisions of TEX. CODE CRIM. PROC. art,.11.07 that the District Clerk file and present to the District Attorney for their response as well as you, the presiding judge to order the writ to be transmitted to the Court of Criminal Appeals.

By receipt I am going to wait 10 days before I seek Mandamus in the Court of Criminal Appeals in this matter. Please exercise your authority and order the District Clerk to begin the process as a matter of law. Thank you in advance for your kind and prompt attention in this

~~-~-§~~-- James Allen.Pelloat, Applicant pro se C.T. Terrell Unit, 1289716 1300 FM 655 Rosharon, Tx. 77583 UNITED STATES POSTAL SERVICE

IIIII • Sender: Please print your name, address, and ZIP+4® in this box• First-Class Mail Postage & Fees Paid USPS Permit No. G-10

JAMES ALLEN PELLOAT

C. T. TERRELL UNIT, 1289716 ~ 1300 FM 655 ~'\/ ROSHARON, TX. 77583 \

i !J /}. • Complete ite.Ji1[';_:.:2i':a.nd 3. Also complete , item· 4 if Resfrimed Delivery is desired. l- • Print your name and adafess on the reverse ( , so that we can return the card to you. \-.· Ill Attach this card to the back of the mailpiece, -~ or on the front if space permits. 0 Yes 1. Article Addressed to: If YES, enter delivery address below: D No HONORABLE J lliONE P. OWENS , JUDGE 1-A JUDICIAL DISTRICT COUR"i' NEWi'ON COUNTY TEXAS \ 203 COUR'l'HOUSE, 2 ND. flDOR WOODVILLE, TX. 75979 3. Service Type §Certified Mail® 0 Priority Mail ExpressN D Registered ~ Return Receipt for Merchandise 0 Insured Mail 0 Collect on

2. Article _ (Transfer from serj_(ce labeO 7013 2630 0001 1653 0158 PS F"c\rm 3811 , July 2013 ·Domestic Return Receipt EXHIBIT-3

LETTER TO TEXAS STATE LAW LIBRARY; RESPONSE AND INDEX OF

APPLICATIONS

( 3 PAGES ) Librarian Texas State Law Library P.O. Box 12367 Austin, Tx. 78711

December 9, 2014 Re: Cost for Disposed Applications for Writ of Habeas Corpus Writ # 75,934-01 thru 75,934-04 Trial Court No's 5591, 5593, 5594 and 5617 1-A Judicial District Court, N~wton County Texas ··-~· .. Styled: Ex Parte James Allen :PeJJqat. · Dear Librarian, Texas State Law Library: By return mail, please advise me of the exact cost for the above disposed Applications for Writ of Habeas Corpus Tank you in advance for }o"ur'.~ind and prompt attention in my request for costs.

Q~~e~ -~--------------------- James ~.tl~.n. PP~!~oat, Applicant/Requester C.T. Te;r~ll·Un~t, 1289716 1300 fi'M 655 ..E-o.sh-aro·n~· Tx. 77583 r

PELLOAT, JAMES

TEXAS STATE LAW LIBRARY P.O. BOX 12367 AUSTIN, TEXAS 78711-2367

6 January 2015 RE: Requesting writ applications for WR-75,934-01 through -04

James Pelloat (#1289716) Boyd Unit (051) Teague, TX 75860-2007

Dear Mr. Pelloat,

Thank you for contacting the Texas State Law Library. We received your request on 12 December 2014.

Enclosed you will find an estimate for your document delivery request. We are returning the stamps you enclosed with your letter. We do not accept stamps as payment for requests.

Sincerely, State Law Library Reference Staff PELLOAT, JAMES

STATE LAW LIBRARY P.O. BOX 12367 AUSTIN, TEXAS 78711·2367 To: James Pelloat #1289716 From: Inmate Copy Service Staff Re: Cost of your request (#7298) for copies received December 12, 2014 Estimate #4120 dated January 6, 2015

Document Requested #of Pages Cost .. Check to order ; Court of Criminal Appeals --· -" - . - -~ - -- -- - . WR-75,934-01 PELLOAT, JAMES ALLEN- WRIT RECEIVED .. .. -- --~- -- ; •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11 12 Pages $3.00 •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· CORPUS, FILED 4/14111 65 Pages $16.25 ' D Court of Criminal Appeals ···- - -- -·- ---- .. ----- ··-· ---·-··· .. ... - . ... \\'_R-7_5,934-02 PELLOA!., JAMES ALLEN- WRIT_RECEIVED • , •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11 12 Pages ... $3.00 D •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4114/11 65 Pages $16.25 D · Court of Criminal Appeals ··-- . . .... -- ---···· -- -- -·-- ····-··· 'WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED ·- --- ---· . - ... --------- .. -- ---·- ·-- - .. -- •APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING . RELIEF FROM FINAL FELONY CONVICTION UNDER CODE . OF CRIMINAL PROCEDURE, ARTICLE 11.07 12 Pages $3.00 D •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· 'CORPUS (FILED 4/14/11) 65 Pages $16.25 D Court of Criminal Appeals · WR-75,934-04 PELLOAT, JAMES ALLEN- WRIT RECEIVED - .. - -- .. . - .... - . •APPLICATION FOR WRIT OF HABEAS CORPUS SEEKJNG RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 12 Pages ' $3.00 D ·~~~~~~~-~---=---~-~---~-~~~~~~~~~~~~-+-~--~--t~~~--~~~~~~~~ •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· CORPUS {FILED 4/14111) 65 Pages $16.25 0 -----

Totalp<:_ges:j 308 i

Total cost:: $77.00 •• -- -- j

Tax (8.25%): $6.35 Service Charge: $5.00 ORDER TOTAL: $88.35

James Pelloat Estimate #4120-6 Jan 2015 $88.35 EXHIBIT-4

LETTER FROM TEXAS STATE LAW LIBRARY, DATED MAY 27, 2015

·INDEX FOR AP. 76,779

( 4 PAGES ) PELLOAT, JAMES

TEXAS STATE LAW LIBRARY P.O. BOX 12367 AUSTIN, TEXAS 78711-2367

27 May 2015 RE: AP-76,779: entire file

James Pelloat (#1289716) Terrell Unit (027) Rosharon, TX 77583

Thank you for contacting the Texas State Law Library. We received your request on 23 April 2015.

Enclosed is an estimate for the requested case file, held at the Court of Criminal Appeals.

Please note that this estimate includes documents from not only #AP-76,779, but also documents from when it existed as a writ file, before it was file and set by the Court of Criminal Appeals, #WR-75,934- 03.

Sincerely,

State Law Library Reference Staff PELLOAT, JAMES

STATE LAW LIBRARY P.O. BOX 12367 AUSTIN, TEXAS 78711-2367 To: James Allen Pelloat #1289716 From: Inmate Copy Service Staff Re: Cost of your request (#7786) for copies received April 23, 2015

Estimate #4467 dated May 19, 2015

Document Requested I # of Pages :/ order ----

""I AP-76,779 PELLOAT, JAMES ALLEN- NOTICE RETURNED ·~=---=--:-:· DISTRICT COURT PRESIDING JUDGE WHITE CARD RETURNED, NOT DELIVERABLE AS ADDRESSED, » DATED 5/2/2012 Court of Criminal Appeals - I Pages -----·-----------'1.------'--- D. -----~

l-~.:..::_76,:79 PELLOA_T, JAMES AL~EN -I\1AN~-~~E IS_~-~~~---------·---------------·i---·-·--l=-...-:~-·---=l < » COURT OF CRIMINAL APPEALS: fviANDATE, SIGNED 5/21/2012 (COPY) 1 I Pag~s l $0.25 D » NEWTON COUNTY -MANDATE RECEIPT ACKNOWLEDGMENT ;I I Pages ~is_t_=:cJ--il Court of Criminal Appeals

1-A_P,_-7_6_,7_7_9_PE_•L_L_O_A_T_,_.J_A_M_E_S_A_L_L_E_N'--'_-o_PI_N_'I_O_N_I_ss_u_E_•D - - - · - - - - - - - - - - - - - · - - :.• » COURT OF CRIMINAL APPEALS: OPINION -RELIEF IS GRANTED, Df\TED 04/25/2012 r _ 2 ~~-L p=c=.~:=-o-:.!. Cour·t of Criminal Appeals

,-~ WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED •__ : j

» ACTION TAKEN- REMANDED FOR AN EVIDENTIARY HEARING/AFFIDAVITS, SIGNED 6/22/2011 I Pages • 0 , $o.2s . » TRIAL CLERK'S COVER SHEET I Pages • $0.25 -----------------------------------------------------------------~---- '. 0: )) INDEX I Pages $0.25 :I D j ' » APPLICATION FOR A WRIT OF HABEAS CORPUS, FILED 4/14/2011 12 Pages $3.00 -~- » BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS 65 Pages $!6.2s • 0 : » RECEIPT FROM CRIMINAL DISTRICT ATTORNEY I Pages t-· $0.25 D : » INDICTMENT I Pages $0.25 D » JUDGMENT OF CONVICTION BY COURT ··~--------------------~------~-------------------------------~·r------ 3 Pages $0.75 D ' ' , » MOTION & ORDER NUNC PRO TUNC , 3 Pages ·~-------------------------------------------------------------------~----- $0.75 D )) CLERK'S CERTIFICATE 2 Pages . $0.50 ·, D i

Court of Criminal Appeals 1 ·~-------------------------------------------------------------------~------'r-----~----~1 WR-75,934-03 PELLOAT, JAMES ALLEN- SUPP_CLERK RECORD ,,______________________________: ~-------t-------J--~~--:1

»TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 1117/2011 r I Pages $0.25 'D , » INDEX I Pages $0.25 r----'r D ' -.....:::=:::---.1 i

>> LETTER FROM JUDGE OWENS TO DISTRICT CLERK RE TRANSMISSION OF SUPPLEMENTAL RECORD ' I Pages $0.25 , 0 , : >> LETTER FROM COURT REPORTER TO JUDGE OWENS RE: ORIGINAL REPORTER'S RECORD ENCLOSED I Pages $0.25 0 >> REPORTER'S RECORD OF PLEA , 9 Pages ' $2.25 ' D ~--------------------------------------------------------------------------·'l--------t-----~t---==---.1 >> CLERK'S CERTIFICATE I Pages $0.25 D i ------·----------------------------------------------,.IJ..i--------'--------''-----.', : Court of Criminal Appeals 1-\-V~R~-7~5~,9~3~4-~0-'-3-'-P=E~L""'L~O-'-A~T-'-,J-A'-"M~E-S~A-L-L'-'E~N~'~-S-U---P.-P~R"-E-C-'-D·-'-'-~-.--~--·---:--------~--~--·--~·f"~· -'-'---..,..F c::= • )) ACTION TAKEN- REMANDED FOR AN EVIDENTIARY-I·-IE_A_R_IN_G_/A-F-FID_A_V_I_TS,-~-:G_N_E--D-I-1-/2-/2-0-Il------"I--,-P-ag_e_s_. $0.25 r-~ >> :r~~L.~~~~~·s C.?~E-~ ~~~.~.!- S~PPL~r:t~~!.~_L !R~NS_CRIPT, RECE!VED I 017/~-0·-,-,------.-_-.---_-.~-.-~-:-a-~e-:- ..· .. $0.25 . 0.- . j t ... --------------------------.. ---- - -----,---- -- ,--·-----~---------------~-----------""--------- ....

» INDEX · . ---------------------------------------------------~--

I Pages 1 $0 25 • ~-

D I) INDICTMENT ·-·-·-------··-----------'------r:::-:-- ·--------------·----- I Pog"' -~r-.[L_ -

» WRITTEN PLEA ADMONISHMENTS ' 6 Pages $1 50 , D » GUlL TY PLEA MEMORANDUM I 3 Pages ·j $0.75 D » JUDGMENT OF CONVICTION BY COURT i 3 Pnges $0.75 D >> MOTION & ORDER NUNC PRO TUNC - 3 Pages $0.75 i D I

$0.75 ' >> AFFIDAVIT OF WILLIAM S MORlAN, JR --·· 3 Pages D >>AFFIDAVIT OF ROBERT J CHOATE - : 2 Pages $0.50 D >> FINDINGS OF FACT AND CONCLUSIONS OF LAW- COURT RECOMMENDS RELIEF BE DENIED, 9/26/2011 : 4 Pages 'I $100 D !

$0.25 ' >>CLERK'S CERTIFICATE - I Pages D Court of Criminal Appeals WR-75,934-03 l'ELLOAT, JAMES ALLEN- STATUS (INMATE CORRESPONDENCE) >>LETTER FROM INMATE ARMSTRONG RE: CASE STATUS, DATED 1/26/2012 · Court of Criminal Appeals :1 2 Pages I $0.50 [ D -

l I WR-75,934-03 PELLOAT, JAMES ALLEN- ORDER ISSUED - COURT OF CRIMINAL APPEALS: ORDER- APPLICATION WILL BE HELD IN ABEYANCE UNTIL THE i >>TRIAL COURT HAS RESOLVED THE FACT ISSUES, FILED 6/22/2011 3 Pages $0.75 l D i

Court of Criminal Appeals -----·---------·--

~~Rf= WR-75,934-03 PELLOAT, JAMES ALLEN- 2ND SUPPLEMENTAL WRIT

r >>ACTION TAKEN- REMANDED FOR AN EVIDENTIARY HEARING/AFFIDAVITS, SIGNED 2115/2012 >>TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPTS, RECEIVED 12/27/2011 ~»SUPPLEMENTAL FINDINGS OF FACT ~~---------------------- -· .... --~~- ········--- -··----~ .. ·····- '''"'"'"'''· ··········-·-·-···------·-"····-··· ·····---~---------------------------- ········- ... ---- _\ 0 1 I Pages 1 $0.25 · ....... ·--···-···! ...... , ..... I07 Pages 1 -!·· · ....................

D >> CLERK'S CERTIFICATE Court of Criminal Appeals I Pages 1 o WR-75,934-03 PEL LOA T, JAMES ALLEN- 3RD SUPPLEMENTAL WRIT »ACTION TAKEN- FILED & SET/GRANTED, SIGNED 4/25/2012 1 Pages $0.25 D » TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 3/19/2012 l Pages $0.25 D »INDEX I Pages $0.25 D »CAPTION l Pages $0.25 i D » ELECTION BY THE CRIMINAL DISTRICT ATTORNEY l Pages $0.25 D »SUPPLEMENTAL FINDINGS OF FACT I Pages $0.25 D >> CLERK'S CERTIFICATE l Pages $0.25 D Total pages: i 260 Total cost: 1 $65.00 Tax (8.25%): • $5.36 Service Charge: : -- $5.00 ORDER TOTAL:; $75.36 Note: To request specific documents plense only check the items desired and resubmit this form so that the Document Delivery Service may recalculate the copy job cost and supply you with a revised estimate and order form. If you wish to order all the documents listed above, please check below and return 1 copy of th1s form and payment for the total amount above to order copies. Notice: Warning Concerning Copyright Restrictions The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of these specified conditions is that the photocopy or reproduction is not to be "(rsed for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for copyright infringement. This institution resenres the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would involve violation of copyright law.

0 CHECK HERE TO ORDER ALL ITEMS LISTED ABOVE . Please make cashier check, money order or inmate tt·ust fund checl{ payable to State Law Library. Copy job turn-around depends on the size of your request, the number of requests being filled and staff time. The State Law Library staff does its best to fill orders as quiclcly as possible. Staff will begin copying your documents once payment is received. THE STATE LAW LIBRARY WILL NOT ACCEPT AN AMOUNT OTHER THAN THE AMOUNT QUOTED FOR PAYMENT. IF YOU . MAKE CHANGES TO THE ESTIMATE, PLEASE SEND THOSE CHANGES TO THE STATE LAW LIBRARY AND WE WILL SEND YOU A NEW ESTIMATE. PAYMENTS RECEIVED THAT ARE NOT IN THE AMOUNT QUOTED WILL BE RETURNED. ESTIMATES ARE VALID FORgo DAYS AFTER THE DATE ISSUED. COURT RECORDS ARE SUBJECf TO THE AVAILABILITY PROVIDED BY THE COURTS. Please rello·n this entire sheet with uow• request! UNIT/ ADDRESS COPIESARETO BE_ SENT TO: - James Allen Pelloat- #1289716 Terrell Unit (027) 1300 FM 6ss 1

Rosharon, TX7?58~ PAYMENT 0 Cashier's Check 0 Money Order 0 Inmate Trust Fund Check Payment Due: $75.36 Send payment and this fo1·m to: STATE LAW LIBRARY DOCUMENT DELIVERY PO BOX 12367 AUSTIN, TX 78711-2367. ·

James Pelloat Estimate #4467-19 May 2015 $75.36 APPENDIX PAGE

COURT OF CRIMINAL APPEALS ORDER.OF JUNE 22, 2011 1- 3 RETAINED COUNSELS AFFIDAVIT 4- 6 TRIAL COURTS FINDINGS OF .FACT 7- 10 COURT OF CRIMINAL APPEALS ORDER.OF FEBRAUARY 15, 2012 11-12 TRIAL COURTS SUPPLEMENTAL FINDINGS OF FACT 13 APPLICANTS SUBMITTED AMENDMENTS TOORIGINAL HABEAS CORPUS APPLICATIONS 14-16 APPLICANTS LETTERS TO DISTRICT CLERK . 17-18 Lafler v. Cooper, 132 S.Ct. 1376 {2012) 19-42 Ex Parte Moussazadeh, 361 S.W. 3d 684 (2012) 43-53 COURT OF CRIMINAL APPEALS ORDER DF JUNE Z2, 2011

( 3 PAGES ) IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04

EX PARTE JAMES ALLEN PELLOAT, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT COURT FROM NEWTON COUNTY

Per curiam.

ORDER

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered into a plea agreement

whereby he pleaded guilty to two charges of sexual assault of a child, and two charges of improper

· relationship between an educator and a student. He was sentenced to twenty years' imprisonment

for each charge, with the sentences in two of the four charges running consecutively, and the other

two sentences running concurrently. He did not appeal his convictions.

Applicant contends, inter alia, that the trial court lacked jurisdiction to entertain the plea

I 2

agreement, that his pleas were not knowingly and voluntarily entered, and that his trial counsel

rendered ineffective assistance because he failed to investigate and discover that one of the offenses

to which Applicant pleaded guilty was not a separate crime at the time it was alleged to have been

committed.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

4G6 U.S. 608 (i984), Expune Lernke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). in these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order Applicant's trial counsel to provide an affidavit responding to Applicant's claim of

ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM.

PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection.

Id.

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If

Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.

The trial court shall make findings offact as to whether Applicant's trial attorney was aware

that the statute making an improper relationship between an educator and a student a crime was

enacted in 2003. If counsel was aware of this fact, the trial court shall make findings as to why

counsel allowed Applicant to plead guilty to the offense in cause number 5594, which was alleged

to have been committed in 2001, prior to the effective date of Texas Penal Code §21.12. The trial

court shall make findings as to whether the performance of Applicant's trial attorney was deficient

and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also 3

make any other findings of fact and conclusions of law that it deems relevant and appropriate to the

disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the

order granting the continuance shall be sent to this Court. A supplemental transcript containing all

affidavit~ and interrogatories or the transcription of the court reporter's notes from any hcEring or

deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall

be returned to this Court within 120 days of the date of this order. Any extensions of time shall be

obtained from this Court. ' .. ~

Filed: June 22, 2011 Do not publish

3 RETAINED COUNSELS AFFIDAVIT

( 3 PAGES ) IN THE COUR OF CRIMINAL APPEAL OF TEXAS

============ NOS. WR-75,934-01, WR-75-934-02, WR-75-934-03 & WR-75-934-04 =====;:=========

=============================· =··===-================== ON APPLICATIONS FOR ~ 7 R!TS OF HABE_4.S COF.J>TJS CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT COURT FROM NEWTON COUNTY

AFFIDAVIT OF WILLIAM S. MORlAN, JR.

BEFORE ME, the undersigned authority, on this day personally appeared

WilliamS. Morian, Jr., who being by me duly sworn under oath and affirmed as

follows:

"My name is WilliamS. Morian, Jr. As counsel for the Defendant, James

Allen Pelloat, in each of the cases the subject of this Writ of Habeas Corpus, I

advised my client of all legal aspects in these cases including the elements of each

one of the· crimes needed to be proven by the State beyond a reasonable doubt as

well as the range of punishment for each of the alleged crimes. I also discussed

with Mr. Pelloat the possibility of the convictions running consecutively in the

event that he was found guilty on those charges.

Lf "In Cause Nos. 5618 and 5594 involving improper relationship between an

educator and a student under Section 21.12 of the Texas Penal Code, the dates of

the offenses set forth in the indictments are obviously prior to the enactment date

of Texas Penal Code Section 21.12. I do not have any independent recollection of

any discussions with Mr. Pelloat about the enactment and effective date of Texas

Penal Code Section 21.12. However, I did advised Mr. Pelloat that the exact date

of the alleged offense did not have to be proven specifically as long it was proven

that the alleged act occurred within the statute of limitations for the particular

offense and before the date of the indictment. The statements of the victims were

reviewed with Mr. Pelloat as was all other evidence. Specifically, the statement of

Thomas Knighton which pertains to Cause No. 5594 stated that the last occurrence

that involved him and Mr. Pelloat was on October 31, 2004, which would have

been after the date of the enactment or affective date of Section 21.12 of the Texas

Penal Code.

"Based on all evidence available to Mr. Pelloat and myself including the

statements of all victims and Mr. Pelloat's confession, the decision was made by

Mr. Pelloat with my advice to accept the plea offer in order to avoid the potential

of a much more lengthy prrsun sentence if he were convicted on the charges and

all sentences ordered to be run consecutively. If the charges under Section 21.12

of the Texas Penal Code were not prosecuted, I believe Mr. Pelloat would have

still faced more than forty years if he were convicted and the sentences were

ordered to run consecutively."

2 SUBSCRIBED AND SWORN TO before me by WilliamS. Morian, Jr., on this the 29th day of July, 2011.

.- ·,.

3 TRIAL COURTS FINDINGS OF FACT

( 4 PAGES ) ===================== EX PARTE JAMES ALLEN PELLOAT, Applicant

================================================== ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NOS. NO 5591, 5593, 5617 & 55941N THE lA JUDICIAL DISTRICT COURT FROM NEWTON COUNTY =================================================== FINDINGS OF FACT AND CONCLUSIONS OF LAW

Applicant filed an application for post conviction writ of habeas corpus. This Court is bf the

opinion that a hearing is not necessary and chooses to rely on affidavits and hereby entJrs the

following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

1. Applicant was indicted for six felony offenses:

Cause Number 5591-lmproper Relationship Between Educator and Student I

6aus.e.J'wmbe r-559.2 .-::.Aggr-avated -Sexoat~-ss·acrtt Cause Number 5593- Sexuai,Assault ' .

Cause Number 5594 -Improper Relationship Between Educator and Student 0

Cause Number 5617- Sex~.al Assault 1 I Cause-Number-s-6-18--tmp-nrp·eTRelation-shlp-Between-Educatorcmu-stud~t. I 2. Applicant entered into a plea bargain with the State and plead guilty to the following I

charges: \

Cause Number 5591-lmproper Relationship Between Educator and Student II

7 Cause Number 5593 -Sexual Assault

Cause Number 5594 -Improper Relationship Between Educator and Student

Cause Number 5617- Sexual Assault.

3. Cause numbers 5592 and 5618 were both dismissed.

4. Applicant was sentenced to twenty (20) years confinement on all four cases. I 5. Cause number 5617 (Sexual Assault) was to run consecutive to the sentence in Icause

number 5593 {Sexual Assault). All other sentences would run concurrently.

6. The indictment in cause number 5594 alleged an offense date of November 7, 2001,

which was prior to the enactment of the "Improper Relationship" statute. (Penal Code

Section 21.12).

7. The date of offense reflected in the judgment and sentence in cause number 5594 was

November 7, 2004. This date coincides with the offense dates alleged in cause nulnbers

5591 and 5593, which is after the enactment of Penal Code Section 21.12.

8. Evidence was provided Applicant's trial counsel pursuant to his motion for discovery,

which included the victim's statement, Applicant's statement as well as other evidence, i that indicated the conduct constituting the offense alleged in cause numbei 1 5594

continued until the time immediately prior to Applicant's arrest in 2004, aftJr the

enactment of Penal Code Section 21.12.

1 9. Applicant's trial counsel advised Applicant of all legal aspects in these cases including

the elements of each one of the crimes needed to be proven by the State beyond a

reasonable doubt as well as the range of punishment for each of the alleged crimes. II I

10. Applicant's trial counsel advised Applicant of the possibility of the convictions run~ing I

I consecutively in the event that he was found guilty. 1

11. Applicant's tria I counsel advised Applicant that the exact date of the alleged offenle did I not have to be proven specifically as long as it was proven that the alleged act occLrred

within the statute of limitations for the particular offense and before the date of the

indictment. 1

12. Applicant's trial counsel was aware of the effective date of the statute making an I improper relationship between an educator and student a crime.

13. Applicant's trial counsel allowed Applicant to plead guilty to the offense in cause I number 5594 because there was evidence that the prohibited conduct continued until

2004 and would have constituted an offense after the effective date of Texas Penal

Code section 21.12.

14. Applicant's trial counsel further allowed Applicant to plead guilty to that offense

because he believed he (Applicant) would have potentially received a much more

lengthy prison sentence if convicted on all charges. ·

15. The sentence in cause number 5594 runs concurrent with other sentences impos.l and

therefore does not affect the amount of time Applicant will have to serve.

II. CONCLUSIONS OF LAW

1. Applicant's plea was entered knowingly and voluntarily.

2. Applicant's trial counsel's conduct was not deficient conduct that fell below the

standards of performance required of counsel in criminal cases.

3. Applicant's trial counsel did not render ineffective assistance of counsel.

9 i I

4. Applicant has failed to meet his burden of proof by a preponderance of the eviderice. I i

5. Applicant is not entitled to the relief requested in his Application for Writ of Habe~s

Corpus. I Having considered the evidence as set forth before this Court and in light of the foreg6ing I Findings of Fact and Conclusions of law, it is the opinion of this Court that the relief prayed for

I in this case be DENIED. I ;t is further ORDERED that copies of this document be served on the Applicant and coJnsel '

for the State.

Signed and entered on this ~day of~~ ,2011.

NEWTON COUNTY, TEXAS COURT OF CRIMINAL APPEALS ORDER"OF FEBRUARY 15, 2012

(2.. PAGES ) .·,' -;; '

IN THE COURT OF CRIMINAL APPEALS OF. TEXAS·· NO. AP-76,779 ·

EX PARTE J;\MES ALLEN PELLOAT, Applicant

.... · ONAP~L~CATION }fOR WRIT OF HABEAS CORPUS· . CAUSE NO. 5594 IN THE JUDICIAL DISTRICT COURT lA FROM NEWTON COUNTY

OPINION

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

;6Ierk of the tri~ court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty pursuant to a

"package" plea agreement to two charges of sexual assa~lt of a child, and two charges of improper

relationship between educator and student. Pursuant to the plea agreement, Applicant was sentenced

to twenty years' imprisonment for each offense, 'With the sentences in cause riumbers 5992 and 5617

to run consecutively, and the remaining sentences to run concurrently. He did not appeal his . convictions.

,•.;' \\ ,. I

Applicant contends, inter alia, that his plea was involuntary because trial counsel failed to

advise him that one of the charges was not an offense at the. time it was committed. We remanded

this application to the trial court for findings &f~ct and conclusions of law,

Trial counsel and the trial prosecutor filed affidavits with the trial court. Based on those

affidavits and the documents in the supplemental record, the trial court has-determined that the

complainant in the .,.03 case was no longer a student at the school whereApplicant taught at the time

the statute making improper relationship between educator and student an offense was enacted.

Applicant is entitled to relief. Exparte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

Relief is granted. The judgment in Ca~~-~A~ in the Judicial District Court 1A of '\. ·- ~-~ ·,··. ·. . Newton County is set aside. The remainder of the judgments and sentences stand pursuant to the

plea agreement. ./ I . I

Copies ofthis opinion shall be sent to the Te~as Department ofCtiminal Justice-Correctional

Institutions Division and Pardons and Paroles Division.

I?.

Delivered: April25, 2012 Do Not Publish

l) TRIAL COURTS SUPPLEMENTAL FINDINGS OF FACT

( 1 PAGE ) --------------------- NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04 --------------------- EX PARTE JAMES ALLEN PELLOAT, Applicant

-------------------------------------------------- ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NOS. NO 5591, 5593, 5594 & 5617 IN THE 1A JUDICIAL DISTRICT COURT FROM NE\NTON COUNTY =================================================== SUPPLEMENTAL FINDINGS OF FACT

These Finding!: of Fact supplement the Findings of Fact and Conclusions of Law previously

filed with this Court.

1. The State has elected to waive the illegal portion of the plea agreement of Applicant

(Judgment and Sentence in Cause Number 5594) and maintain and adhere to the

remainder of the plea agreement (Judgment and Sentence in Cause Numbers 5591,

5593 and 5617).

2. The State accepts the plea agreement as modified.

3. The District Clerk of Newton County, Texas shall notify the Court of Criminal Appeals of

Texas ofthe Court's Supplemental Findings of Fact.

Signed and entered on this __f_ day of ~ 12012,

NEWTON COUNTY, TEXAS APPLICANTS SUBMITTED' AMENDMENTS TO ORIGINAL HABEAS CORPUS

( 3 PAGES ) AMENDMENT TO ORIGINAL HABEAS CORPUS COPY ')F(IGiNAL FiLED Case No. ND-5591-A (The Clerk of the convicting court will fill this line in.) .JUI_ 11 2012 . BREEALLEN IN THE COURT OF CRIMINAL APPEALS OF TEXASJ!strict Clerk, Newton Co.

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

.NAME: __J_a_m_e_s_A_l_l_e_n __P_e_l_l_o_a_t_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

.DATEOFBIRTH: April 20, 1947 .PLACE OF CONFINEMENT: Stringfellow Unit TDCJ

.TDCJ-CID NUMBER: _1_2_8_9_7_1_6_ _ __ SID NUMBER: 07415408

(1) This application concerns (check all that apply):

£3' a conviction 0 parole

0 a sentence 0 mandatory supervision

0 time credit 0 out-of-time appeal or petition for discretionary review

(2) What district court entered the judgment of the conviction you want relief from? · (Include the court number and county.)

1-A Judicial Diatrict Court- Ner.1ton County (3) What was the case number in the trial court?

(4) What was the name of the trial judge?

Monte Lawlis

\' 5 Cooy ~\~caM -' 1

Revised: September I, 20 II \~ ATC-11.07 ,.

.re o~J ~ ~ ~ .;· \ ORIGINAL FiLED AMENDMENT TO ORIGINAL HABEAS CORPUS Case No. ND-5593-A JUL 11 2012 (The Clerk of the convicting court will fill this line in.) BREE.4LLEN District Clerk, Newton Co. IN THE COURT OF CRIMINAL APPEALS OF TEXAS II APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 c::·.

.NAME: J arne s Allen· Pe lloa t

DATE OF BIRTH: April 20, 194 7 :PLACE OF CONFINEMENT: Strlngfellow Unl t 'l'DCJ

TDCJ.:.CID NUMBER: 12 8 9 716 SID NUMBER: 0741 5408

!iQ a conviction 0 parole

0 time credit 0 out-of-time appeal or petition for discretionary review

(2) .What district court entered the judgment of the conviction you want relief from? (Include the court number and county.)·

1-A Judicial District Court- Newton Co!lnty

(3) . I What was the case number in the trial court? ND- 5593

.. '

,.. Revised: September!, 2011 ATC-1 L07

" ' . '·'' \ .•. \ AMENDMENT TO ORIGINAL HABEAUS CORPUS COPY OF

. . BREE ALLEN D!stnct Clerk N IN THE COURT OF CRIMINAL APPEALS OF TEXAS ' ewton Co.

APPLICATION FOR A WRIT OF HABEAS CORPUS SEEKING RELIEF FROM FINAL FELONY CONVICTION UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07

_NAME: James Allen Pelloat .DATE OF BIRTH: April 20, 194 7 .PLACE OF CONFINEMENT: Stringfellow Unit, TDCJ

TDCJ-CID NUMBER: _,1""""'2"---"8'--"9'--'-7-=1~6-'-._ _ __ SID NUMBER: 0_,_7=4""'-1=--54-'-'0"'--'8"------

(l) This application concerns (check all that apply):

~ a conviction 0 parole

0 time credit 0 out-of-time appeal or petition for discretionary review

(2) What district court entered the judgment of the conviction you want relief from? (Include the court number and county.)

1-A Judicial District Court- Newton County (3) What was the case number in the trial court?

( 4) What was the name of the trial judge?

1(o Revised: September 1, 2011 ATC-11.07 • .• APPLICANTS LETTERS TO DISTRICT CLERK

( 2 PAGES ) ,.

l I

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1 LAFLER V. COOPER, 132 S.Ct. 1376 (2012)

( 24 PAGES )

t ..v;.~ ...\".'

;f. ·. '• West law. Page I 132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 (Cite as: 132 S.Ct. 1376)

joined in part.

S·upreme Court of the United States Blaine LAFLER, Petitioner Justice Ali to filed a dissenting opinion. v. West Headnotes Anthony COOPER. [1] Criminal Law 110 €=1731 No. 10-209. Argued Oct. 31, 20 II . II 0 Criminal Law Decided March 21, 2012. II OXXXT Counsel 11 OXXXI(B) Right of Defendant to Counsel Background: After affirmance of convictions and II OXXXI(B)2 Stage of Proceedings as sentence, 2005 WL 599740, petitioner, a. state in- Affecting Right mate who had been convicted of several offenses, 11 Ok 1731 k. Guilty pleas; plea negoti- including assault with intent to murder, after reject- ations, plea hearings, motion to withdraw. Most ing a guilty plea based on the advice of counsel, Cited Cases and who had been denied state postconviction re- Defendants' Sixth Amendment right to counsel lief, sought federal habeas cor;JUs relief, claiming extends to the plea-bargaining process. U.S.C.A. ineffective assistance of counsel. The United States Const.Amend. 6. District Court for the Eastern District of Michigan, Denise Page Hood, J., 2009 WL 817712, condition- [2] Criminal Law 110 €=1920 ally granted the petition, requiring the state to offer petitioner the plea deal that he would have taken I 10 Criminal Law but for his attorney's ineffective assistance. State II OXXXI Counsel appealed. The United States Court of Appeals for 11 OXXXI(C) Adequacy of Representation the Si::th Circuit, Cornelia G. Kennedy, Circuit II OXXXI(C)2 Particular Cases and Issues Judge, 3 76 Fed.Appx. 563, affinned. State's peti- 11 Ok 1920 k. Plea. Most Cited Cases tion for certiJrari was granted. During plea negotiations defendants are en- titled to the effective assistance of competent coun- Holdings: The Supreme Court, Justice Kennedy, sel. U.S.C.A. Const.Amend. 6. held that: ( 1) petitioner was prejudiced by counsel's deficient [3] Criminal Law 110 €=1920 perfonnance in advising petitioner tci reject the plea offer and go to trial, and 1 l 0 Criminal Law (2) proper remedy for counsel's ineffective assist- II OXXXI Counsel ance was to order the State to reoffer the plea II OXXXT(C) Adequacy of Representation agreement, and then, if petitioner accepted the of- 11 OXXXJ(C)2 Particular Cases and Issues fer, the state trial court could exercise its discretion II Ok 1920 k. Plea. Most Cited Cases regarding whether to resentence. The two-part Strickland , .. Washington test for ineffective assistance of counsel applies to chal- Vacated and remanded. lenges to guilty pleas based on ineffective assist- ance of counsel. U.S.C.A. Const.Amend. 6.

Justice Scalia filed a dissenting opinion, which [4] Criminal Law 110 €=1882';· >; Justice Thomas joined and Chief Justice Roberts

.·,·:·

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 I32 S.Ct. I376, I82 L.Ed.2d 398,80 USLW 4244, I2 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 (Cite as: 132 S.Ct. 1376)

II 0 Criminal Law 11 0 Criminal Law I I OXXXT Counsel 11 OX XXI Counsel 11 OXXXI(C) Adequacy of Representation 11 OXXXI(C) Adequacy of Representation 11 OXXXI(C) I In General 110XXXI(C)2 Particular Cases and Issues 11 Ok 1879 Standard of Effective As- 110k1920 k. Plea. Most Cited Cases sistance in General In the context of a defendant having rejected a 11 Ok 1882 k. Deficient representa- plea offer from the prosecution based on the defi- tion in general. Most Cited Cases cient advice of counsel and having stood trial, the The performance prong of the Strickland test defendant, to establish the prejudice prong of the for ineffective assistance of counsel requires a de- Strickland test for ineffective assistance of counsel, fendant to show that counsel's representation fell must show that but for the ineffective advice of below an objective standard of reasonableness. counsel there is a reasonable probability that the U.S.C.A. Const.Amend. 6. plea offer would have been presented to the court, i.e., that the defendant would have accepted the [5] Criminal Law 110 ~1883 plea and the prosecution would not have withdrawn it in light of intervening circumstances, and also II 0 Criminal Law that the court would have accepted its terms, and 110XXXI Counsel that the conviction or sentence, or both, under the 11 OXXXI(C) Adequacy of Representation offer's terms would have been less severe. than un- 11 OXXXI(C) 1 In General der the judgment and sentence that in fact were im- 11 Ok 1879 Standard of Effective As- posed. U.S.C.A. Const.Amend. 6. sistance in General 11 Ok I 883 k. Prejudice in general. [8] Criminal Law 110 ~1718 Most Cited Cases To establish the prejudice prong of the Strick- 110 Criminal Law land test for ineffective assistance of counsel, a de- 11 OXXXI Counsel fendant must show that there is a reasonable prob- II OXXXI(B) Right of Defendant to Counsel ability that, but for counsel's unprofessional errors, 11 OXXXI(B)2 Stage of Proceedings as the result of the proceeding would have been differ- Affecting Right ent. U.S.C.A. Const.Amend. 6. II Ok 1718 k. Critical stages. Most Cited Cases [6] Criminal Law 110 ~1920 The Sixth Amendment requires effective assist- ance of counsel at critical stages of a criminal pro- 11 0 Criminal Law ceeding. U.S.C.A. Const.Amend. 6. II OXXXI Counsel II OXXX!(C) Adequacy of Representation [9] Criminal Law 110 ~1718 11 OXXXI(C)2 Particular Cases and Issues J!Okl920 k. Plea. Most Cited Cases 110 Criminal Law In the context of pleas, to establish the preju- 1 I OXXXI Counsel dice prong of the Strickland test for ineffective as- 11 OXXXI(B) Right of Defendant to Counsel sistance of counsel, a defendant must show the out- 11 OXXXI(B)2 Stage of Proceedings as come of the plea process would have been different Affecting Right with competent advice. U.S.C.A. Const.Amend. 6. II Ok 1718 k. Critical stages. Most Cited Cases [7] Criminal Law 110 ~1920 The Sixth Amendment's protections against in- effective assistance of counsel are not, designed

© 2012 Thomson Reuters. No Clain1 to Orig. US Gov. Works. Page 3 132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S.203 (Cite as: 132 S.Ct. 1376)

simply to protect the trial, even though counsel's II 0 Criminal Law absence ip critical stages of a criminal proceeding I 1OX XXI Counsel may derogate from the accused's right to a fair trial. 11 OXXXI( C) Adequacy of Representation U.S.C.A. Const.Amend. 6. 11 OXXXI(C)2 Particular Cases and Issues 11 Ok 1958 Death Penalty [10] Criminal Law 110 €;=1718 II Ok 1959 k. In general. Most Cited Cases I I 0 Criminal Law A right to effective assistance of counsel exists II OXXXI Counsel during sentencing in both noncapital and capital 11 OXXXI(B) Right of Defendant to Counsel cases. U.S.C.A. Const.Amend. 6. , II OXXXT(B)2 Stage of Proceedings as Affecting Right [13] Criminal Law 110 €=1953 II Ok 1718 k. Critical stages. Most Cited Cases II 0 Criminal Law The constitutional guarantee of effective assist- I 1OXXXI Counsel ance of counsel applies to pretrial critical stages II OXXXI(C) Adequacy of Representation that are part of the whole course of a criminal pro- II OXXXI(C)2 Particular Cases and Issues ceeding, a proceeding in which defendants cannot 11 Ok 1952 Sentencing in General be presumed to make critical decisions without 11 Ok 1953 k. In general. Most Cited counsel's advice. U.S.C.A. Const.Amend. 6. Cases Even though sentencing does not concern the [11] Criminal Law 110 €;=1967 defendant's guilt or innocence, ineffective assist- ance of counsel during a sentencing hearing can II 0 Criminal Law result in prejudice, under the prejudice prong of the II OXXXI Counsel Strickland test for ineffective assistance of counsel, 11 OXXXI(C) Adequacy of Representation because any amount of additional jail time has II OXXXI(C)2 Particular Cases and Issues Sixth Amendment significance. U .S.C.A. II Ok 1966 Appeal Const.Amend. 6. II Ok 1967 k. In general. Most Cited Cases [14] Criminal Law 110 €=1920 Defendants have a right to effective assistance of counsel on appeal, even though that cannot in I I 0 Criminal Law any way be characterized as part of the trial. 11 OXXXI Counsel U.S.C.A. Const.Amend. 6. II OXXXI(C) Adequacy of Representation 11 OXXXI(C)2 Particular Cases and Issues [12] Criminal Law 110 €=1953 11 Ok 1920 k. Plea. Most Cited Cases Even if the trial itself is free from constitution- II 0 Criminal Law al flaw, the defendant who, based on the deficient 11 OXXXI Counsel perfonnance of counsel, goes to trial instead of tak- II OXXXI(C) Adequacy of Representation ing a more favorable plea may be prejudiced, as II OXXXI(C)2 Particular Cases and Issues element of ineffective assistance of counsel, from II Ok 19 52 Sentencing in General either a conviction on more serious counts or the II Ok 1953 k. In general. Most Cited imposition of a more severe sentence. U.S.C.A. Cases Const.Amend. 6. Criminal Law 110 €=1959 [15] Criminal Law 110 €=1924

'· ,' i: ~~.; -.-: -.: ,· •.

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. ·'<· Page4 132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 (Cite as: 132 S.Ct. 1376)

I I 0 Criminal Law 92VII Constitutional Rights in General I I OX XXI Counsel 92VII(A) In General II OXXXI(C) Adequacy of Representation 92kl 050 k. In general. Most Cited Cases II OXXXI(C)2 Particular Cases and Issues When a State opts to act in a field where its ac- II Ok 1921 Introduction of and Objec- tion has significant discretionary elements, it must tions to Evidence at Trial nonetheless act in accord with the dictat~s of the I10k1924 k. Presentation of wit- Constitution. nesses. Most Cited Cases A defendant cannot show prejudice, under the [19] Criminal Law 110 ~1880

prejudice prong of the Strickland test for ineffective 110 Criminal Law assistance of counsel, based on counsel's refusal to II OXXXI Counsel present perjured testimony, even if such testimony II OXXXI(C) Adequacy of Representation might have affected the outcome of the case. 110XXXI(C)1 In General U.S.C.A. Const.Amend. 6. 11 Ok 1879 Standard of Effy,ctive As- [16] Criminal Law 110 ~1920 sistance in General 11 Ok 1880 k. In general. Most Cited I I 0 Criminal Law Cases II OXXXI Counsel The benchmark for judging any claim of inef- II OXXXI(C) Adequacy of Representation fective assistance of counsel must be whether coun- 11 OXXXI(C)2 Particular Cases and Issues sel's conduct so undermined the proper functioning 11 Ok 1920 k. Plea. Most Cited Cases of the adversarial process that the trial cannot be re- If a plea bargain has been offered, a defendant lied on as having produced a just result. U.S.C.A. has the right to effective assistance of counsel in Const.Amend. 6. considering whether to accept it, and if that right is denied, prejudice can be shown, under the prejudice [20] Criminal Law 110 ~1870

prong of the Strickland test for ineffective assist- 110 Criminal Law ance of counsel, if loss of the plea opportunity led II OXXXI Counsel to a trial resulting in a conviction on more serious II OXXXI(C) Adequacy of Representation ·charges or the imposition of a more severe sen- II OXXXI(C) 1 In General tence. U.S.C.A. Const.Amend. 6. 11 Ok 1870 k. In general. Most Cited [17] Criminal Law 110 ~273(2) Cases The constitutional rights of criminal defendants II 0 Criminal Law are granted to the innocent and the guilty alike, and I JOXV Pleas consequently, the guarantee of effective assistance 11 Ok272 Plea of Guilty of counsel does not belong solely to the innocent or 11 Ok273 In General attach only to matters affecting the determination of Il Ok273(2) k. Right to plead guilty; actual guilt. U.S.C.A. Const.Amend. 6. mental competence. Most Cited Cases Defendants have no right to be offered a plea, [21] Criminal Law 110 ~1862

nor a federal right that the judge accept it. I I 0 Criminal Law [18] Constitutional Law 92 ~1050 II OXXXI Counsel 11 OXXXI(B) Right of Defendant to Counsel 92 Constitutional Law I 1OXXXI(B) 11 Deprivation or Allowance

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 (Cite as: 132 S.Ct. 1376)

of Counsel II Ok 1920 k. Plea. Most Cited Cases I I Ok 1860 Effect of Representation or For purposes of detennining the remedy for in- Deprivation of Rights effective assistance of counsel relating to defend- II Ok 1862 k. Remedies. Most Cited ant's rejection of a plea offer, if an offer was for a Cases guilty plea to a count or counts less serious than the Sixth Amendment remedies should be tailored ones for which a defendant was convicted after tri- to the injury suffered from the constitutional viola- al, or if a mandatory sentence confines a judge's tion and should not unnecessarily infringe on com- sentencing discretion after trial, the proper exercise peting interests, and thus, a remedy must neutralize of discretion to remedy the constitutional injury the taint of a constitutional violation, while at the may be to require the prosecution to reoffer the plea same time not grant a windfall t~ the defendant or proposal, and once this has occurred, the judge can needlessly squander the considerable resources the then exercise discretion in deciding whether to va- State properly invested in the criminal prosecution. cate the conviction from trial and accept the plea or U.S.C.A. Const.Amend. 6. leave the convictiOn undisturbed. U.S.C.A. Const.Amend. 6. [22] Criminal Law 110 €:=1920 [24] Criminal Law 110 ~1920 110 Criminal Law 11 OXXXI Counsel 110 Criminal Law 11 OXXXI( C) Adequacy of Representation 11 OXXXI Counsel 11 OXXXI(C)2 Particular Cases and Issues 11 OXXXI(C) Adequacy of Representation 11 Ok 1920 k. Plea. Most Cited Cases 11 OXXXI(C)2 Particular Cases and Issues When determining the remedy for ineffective 11 Ok 1920 k. Plea. Most Cited Cases assistance of counsel relating to defendant's rejec- A court, in determining the remedy for inef- tion of a plea offer, if the sole advantage a defend- fective assistance of counsel relating to defendant's ant would have received under the plea is a lesser rejection of a plea offer, may take account of a de- sentence, which is typically the case when the fendant's earlier expressed willingness, or unwill- charges that would have been admitted as part of ingness, to accept responsibility for his or her ac- the plea bargain are the same as the charges the de- tions. U.S.C.A. Const.Amend. 6. fendant was convicted of after trial, the court may conduct an evidentiary hearing to determine wheth- [25] Criminal Law IIO ~1920 er the defendant has shown a reasonable probability 110 Criminal Law that but for counsel's errors he would have accepted 1 1OX XXI Counsel the plea, and if the showing is made, the court may 11 OXXXI( C) Adequacy of Representation exercise discretion in determining whether the de- II OXXXI(C)2 Particular Cases and Issues fendant should receive the term of imprisonment 11 Ok 1920 k. Plea. Most Cited Cases the government offered in the plea, the sentence he In determining the remedy for ineffective as- received at trial, or something in between. U.S.C.A. sistance of counsel relating to defendant's rejection Const.Amend. 6. of a plea offer, the precise positions the defendant [23] Criminal Law 110 €:=1920 and the prosecution prior to the rejection of the plea offer can be consulted in finding a remedy that does I 10 Criminal Law not require the prosecution to incur the expense of II OX XXI Counsel conducting a new trial. U.S.C.A. Const.Amend. 6. 11 OXXXI(C) Adequacy of Representation 11 OXXXI(C)2 Particular Cases and Issues [26] Habeas Corpus 197 ~452

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 (Cite as: 132 S.Ct. 1376)

197 Habeas Corpus since the victim had been shot below the waist; but 197!I Grounds for Relief; Illegality of Restraint for counsel's deficient performance, there was a 197Il(A) Ground and Nature of Restraint reasonable probability that defendant and the trial 197k450 Federal Review of State or Ter- court would have accepted the guilty plea, and as a ritorial Cases result of not accepting the plea offer and being con- ' 197k452 k. Federal or constitutional victed at trial, defendant received a minimum sen- questions. Most Cited Cases tence three and one-half times greater than he A decision is "contrary to clearly established would have received under the plea. U.S.C.A. law," for purposes of the Antiterrorism and Effect- Const.Amend. 6. "· ive Death Penalty Act (AEDPA), under which a federal court may not grant a petition for a writ of [29] Criminal Law 110 €:;=1920 habeas corpus unless the state court's adjudication II 0 Criminal Law on the merits was contrary to, or involved an un- 11 OXXXI Counsel reasonable application of, clearly established feder- 11 OXXXI(C) Adequacy of Representation al law as determined by the Supreme Court of the 110XXXI(C)2 Particular Cases and Issues United States, if the state court applies a rule that II Ok 1920 k. Plea. Most Cited Cases contradicts the governing law set forth in Supreme Proper remedy for counsel's ineffective assist- Court cases. 28 U.S.C.A. § 2254(d)(l). ance in advising defendant to reject a plea offer [27] Criminal Law 110 €:=1920 from the State and go to trial because counsel al- legedly believed that defendant's intent to murder, II 0 Criminal Law for purposes of charge under Michigan law of as- II OXXXI Counsel sault with intent to murder, could not be established 11 OXXXI(C) Adequacy of Representation since the victim had been shot below the waist, was II OXXXI(C)2 Particular Cases and Issues to order the State to reoffer the plea agreement, and 11 Ok 1920 k. Plea. Most Cited Cases then, presuming defendant accepted the .offer, the An inquiry into whether the rejection of a plea state trial court could exercise its discretion in de- is knowing and voluntary is not the correct means termining whether to vacate the convictions and re- by which to address a claim of ineffective assist- sentence defendant pursuant to the plea agreement, ance of counsel, relating to a plea. U.S.C.A. to vacate only some of the convictions and resen- Const.Amend. 6. tence defendant accordingly, or to leave the convic- tions and sentence from trial undisturbed. U.S.C.A. [28] Criminal Law 110 ~1920 Const.Amend. 6; MCR 6.302(C)(3).

110 Criminal Law FN* *1380 Syllabus II OXXXI Counsel II OXXXI(C) Adequacy of Representation FN* The syllabus constitutes no part of the II OXXXI(C)2 Particular Cases and Issues opinion of the Court but has been prepared ll0kl920 k. Plea. Most Cited Cases by the Reporter of Decisions for the con- Defendant was prejudiced, as element of inef- venience of the reader. See United States v. fective assistance of counsel, by counsel's deficient Detroit Timber & Lumber Co., 200 U.S. perfonnance in advising defendant to reject a plea 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. offer from the State and go to trial because counsel allegedly believed that defendant's intent to murder, Respondent was charged under Michigan law for purposes of charge under Michigan law of as- with assault with intent to murder and three other sault with intent to murder, could not be established offenses. The prosecution offered to dismiss two of ·

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the charges and to recommend a 51-to-85-month formance was deficient, the only question is how to sentence on the other two, in exchange for a guilty apply Strickland 's prejudice test where ineffective plea. In a communication with the court, respondent assistance results in a rejection of the plea offer and admitted ,his guilt and expressed a willingness to the defendant is convicted at the ensuing trial. Pp. accept the offer. But he rejected the offer, allegedly 1383- 1384. after his attorney convinced him that the prosecu- tion would be unable to establish intent to murder (b) In that context, the Strickland prejudice test because the victim had been shot below the waist. requires a defendant to show a reasonable possibil- At trial, respondent was convicted on all counts and ity that the outcome of the plea process would have received a mandatory minimum 185-to-360-month been different with competent advice. The Sixth sentence. In a subsequent hearing, the state trial Circuit and other federal appellate courts have court rejected respondent's claim that his attorney's agreed with the Strickland prejudice test for reje'c- advice to•reject the plea constituted ineffective as- ted pleas adopted here by this Court. Petitioner and sistance. The Michigan Court of Appeals affirmed, the Solicitor General propose a narrow view-that rejecting the ineffective-assistance claim on the Strickland prejudice cannot arise from plea bargain- ground that respondent knowingly and intelligently ing if the defendant is later convicted at a fair tri- turned down the plea offer and chose to go to trial. al-but their reasoning is unpersuasive. First, they Respondent renewed his claim .in federal habeas. claim that the Sixth Amendment's sole purpose is to Finding that the state ·appellate court had unreason- protect the right to a fair trial, but the Amendment ably applied the constitutional effective-assistance actually requires effective assistance at critical standards laid out in Strickland v. Washington, 466 stages of a *1381 criminal proceeding, including U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674, and Hill pretrial stages. This is consistent with the right to v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d effective assistance on appeal, see, e.g., Halbert v. 203, the District Court granted a conditional writ Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 and ordered specific performance of the original L.Ed.2d 552, and the right to counsel during senten- plea offer. The Sixth Circuit affirmed. Applying cing, see, e.g., Glover v. United States, 531 U.S. Strickland, it found that counsel had provided defi- 198, 203-204, 121 S.Ct. 696, I 48 L.Ed.2d 604. cient perfonnance by advising respondent of an in- This Court has not followed a rigid rule that an oth- corre~t legal rule, and that respondent suffered pre- erwise fair trial remedies errors not occurring at tri- judice because he lost the opportunity to take the al, but has instead inquired whether the trial cured more favorable sentence offered in the plea. the particular error at issue. See, e.g., Vasquez v. Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88 Held: L.Ed.2d 598. Second, this Court has previously re- jected petitioner's argument that Lockhart v. I. Where counsel's ineffective advice led to an Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d offer's rejection, and where the prejudice alleged is 180, modified Strickland and does so again here. having to stand trial, a defendant must show that Fretwell and Nix v. Whiteside, 475 U.S. 157, 106 but for the ineffective advice, there is a reasonable S.Ct. 988, 89 L.Ed.2d 123, demonstrate that "it probability that the plea offer would have been would be unjust to characterize the likelihood of a presented to the court, that the court would have ac- different outcome as legitimate 'prejudice,' " Willi- cepted its terms, and that the conviction or sen- ams v. Taylor, 529 U.S. 362, 391-392, 120 S.Ct. tence, or both, under the offer's terms would have 1495, 146 L.Ed.2d 389, where defendants would re- been less severe than under the actual judgment and ceive a windfall as a result of the application of an sentence imposed. Pp. 1383- 1388. incorrect legal principle or a defense strategy out- side the law. Here, however, respondent seeks relief (a) Because the parties agree that counsel's per-

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from counsel's failure to meet a valid legal stand- require the prosecution to reoffer the plea. The ard. Third, petitioner seeks to preserve the convic- judge can then exercise discretion in deciding tion by arguing that the Sixth Amendment's purpose whether to vacate the conviction from trial and ac- is to ensure a conviction's reliability, but this argu- cept the plea, or leave the conviction undisturbed. ment fails to comprehend the full scope of the Sixth In either situation, a court must weigh various Amendment and is refuted by precedent. Here, the factors. Here, it suffices to give two relevant con- question is the fairness or reliability not of the trial siderations. First, a court may take account of a de- but of the processes that preceded it, which caused fendant's earlier * 1382 expressed willingness, or respondent to lose benefits he would have received unwillingness, to accept responsibility for his or her but for counsel's ineffective assistance. Further- actions. Second, it is not necessary here to decide more, a reliable trial may not foreclose relief when as a constitutional r:ule that a judge is r~.quired to counsel has failed to assert rights that may have disregard any information concerning the crime dis- altered the outcome. See Kimmelman v. Morrison, covered after the plea offer was made. Petitioner ar- 477 U.S. 365, 379, 106 S.Ct. 2574, 91 L.Ed.2d 305. gues that implementing a remedy will open the Petitioner's position that a fair trial wipes clean in- floodgates to litigation by defendants seeking to un- effective assistance during plea bargaining also ig- settle their convictions, but in the 30 years that nores the reality that criminal justice today is for courts have recognized such claims, there has been the most part a system of pleas, not a systeni of tri- no indication that the system is overwhelmed or als. See Missouri v. Frye, -U.S.--, 132 S.Ct. that defendants are receiving windfalls as a result of 1399,- L.Ed.2d - . Pp. 1384- 1388. strategically timed Strickland claims. In~·addition, the prosecution and trial courts may adopt measures 2. Where a defendant shows ineffective assist- to help ensure against meritless claims. See Frye, ance has caused the rejection of a plea leading to a ante, at--, 132 S.Ct. 1399. Pp. 1388- 1390. more severe sentence at trial, the remedy must "neutralize the taint" of a constitutional violation, 3. This case arises under the Antiterrorism and United States 1'. Morrison, 449 U.S. 361, 365, 101 Effective Death Penalty Act of 1996 (AEDP A), but S.Ct. 665, 66 L.Ed.2d 564, but must not grant a because the Michigan Court of Appeals' analysis of windfall to the defendant or needlessly squander the respondent's ineffective-assistance-of-counsel claim resources the State properly invested in the criminal was contrary to clearly established federal"law, AE- prosecution, see United States v. Mechanik, 475 DPA presents no bar to relief. Respondent has satis- U.S. 66, 72, 106 S.Ct. 938, 89 L.Ed.2d 50. If the fied Strickland 's two-part test. The parties concede sole advantage is that the defendant would have re- the fact of deficient performance. And respondent ceived a lesser sentence under the plea, the court has shown that but for that performance there is a should have an evidentiary hearing to determine reasonable probability he and the trial court would whether the defendant would have accepted the have accepted the guilty plea. In addition, as a res- plea. If so, the court may exercise discretion in de- ult of not accepting the plea and being convicted at termining whether the defendant should receive the trial, he received a minimum sentence ~- & half; term offered in the plea, the sentence received at times greater than he would have received under trial, or something in between. However, resenten- the plea. As a remedy, the District Court ordered cing based on the conviction at trial may not suf- specific perfonnance of the plea agreement, but the fice, e.g., where the offered guilty plea was for less correct remedy is to order the State to reoffer the serious counts than the ones for which a defendant plea. If respondent accepts the offer, the state trial was convicted after trial, or where a mandatory sen- court can exercise its discretion in determining tence confines a judge's sentencing discretion. In whether to vacate respondent's convictions and re- these circumstances, the proper remedy may be to sentence pursuant to the plea agreement, to vacate

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only som.e of the convictions and resentence ac- further proceedings led to a less favorable outcome. cordingly, or to leave the conviction and sentence In Frye, defense counsel did not inform the defend- resulting from the trial undisturbed. Pp. 1390 - ant of the plea offer; and after the offer lapsed the 1391. defendant sfill pleaded guilty, but on more severe terms. Here, the favorable plea offer was reported 376 Fcd.Appx. 563, vacated and remanded. to the client but, on advice of counsel, was rejected. In F1ye there was a later guilty plea. Here, after the KENNEDY, J., ·delivered the opinion of the plea offer had been rejected, there was a full and Court, in which GINSBURG, BREYER, SOTO- fair trial before a jury. After a guilty verdict, the de- MAYOR. and KAGAN, JJ., joined. SCALIA, J., fendant received a sentence harsher than that filed a dissenting opinion, in which THOMAS, J., offered in the rejected plea bargain. The instant joined, and in which ROBERTS, C.J., joined as to case comes to the Court with the concession that all but Part IV. AUTO, J., filed a dissenting opin- counsel's advice with respect to the plea offer fell ion. below the standard of adequate assistance of coun- John J. Bursch, Solicitor General, for Petitioner. sel guaranteed by the Sixth Amendment, applicable William M. Jay, for the United States, as amicus to the States through the Fourteenth Amendment. curiae, by special leave of the Court, supporting the Petitioner. On the evening of March 25, 2003, respondent Valerie R. Newman, Detroit, MI, appointed by this pointed a gun toward Kali Mundy's head and fired. Court, for the Respondent. From the record, it is unclear why respondent did this, and at trial it was suggested that he might have Bill Schuette, Attorney General, John J. Bursch, acted either in self-defense or in defense of another Michigan Solicitor General, Counsel of Record, person. In any event the shot missed and Mundy Lansing, MI, B. Eric Restuccia, Michigan Deputy fled. Respondent followed in pursuit, firing re- Solicitor General, Joel D. McGormley, Appellate peatedly. Mundy was shot in her buttock, hip, and Division Chief, for Petitioner. abdomen but survived the assault.

Jeffrey T. Green, Karen S. Smith, Brian A. Fox, Respondent was charged under Michigan law Sidley Austin LLP, Washington, DC, Sarah with assault with intent to murder, possession of a O'Rourke Schrup, Chicago, IL, Valerie R. Newman firearm by a felon, possession of a firearm in the , Jacqueline J. McCann, State Appellate Defender commission cif a felony, misdemeanor possession Office, Detroit, MI, for Respondent Anthony of marijuana, and for being a habitual offender. On Cooper. two occasions, the prosecution offered to dismiss two of the charges and to recommend a sentence of For U.S. Supreme Court briefs, see:20 II WL 51 to 85 months for the other two, in exchange for a 3663395 (Reply.Brief)2011 WL 2837936 guilty plea. In a communication with the court re- (Resp.Brief)2011 WL 1523284 (Pet.Brief) spondent admitted guilt and expressed a willingness to accept the offer. Respondent, however, later re- Justice KENNEDY delivered the opinion of the jected the offer on both occasions, allegedly after Court. his attorney convinced him that the prosecution In this case, as in Missouri v. Frye, - U.S. would be unable to estab~ish his intent to murder ---, 132 S.Ct. 1399, ----L.Ed.2d ··.·---· (2012), Mundy because she had been shot below the waist. also decided today, a criminal *1383 defendant On the first day of trial the prosecution offered a seeks a -remedy when inadequate assistance of significantly less favorable plea deal, which re- counsel caused nonacceptance of a plea offer and

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spondent again rejected. After trial, respondent was Applying Strickland, the Court of Appeals found convicted on all counts and received a mandatory that respondent's attorney had provided deficient minimum sentence of 185 to 360 months' imprison- performance by informing respondent of "an incor- ment. rect legal rule," 376 Fed.Appx., at 570-571, and that respondent suffered prejudice because he "lost In a so-called Ginther hearing before the state out on an opportunity to plead guilty a~..d receive trial court, see People v. Ginther, 390 Mich. 436, the lower sentence that was offered to him." !d., at 212 N.W.2d 922 (1973), respondent argued his at- 573. This Court granted certiorari. 562 U.S. - - , torney's advice to reject the plea constituted inef- 131 S.Ct. 856, 178 L.Ed.2d 622 (20 11 ). fective assistance. The trial judge rejected the claim, and the Michig~n Court of Appeals affirmed. II People v. Cooper, No. 250583, 2005 WL 599740 A (Mar. 15, 2005) (per curiam), App. to Pet. for Cert. [1][2][3][4] Defendants have a Sixth Amend- 44a. The Michigan Court of Appeals rejected the ment right to counsel, a right that extends to the claim of ineffective assistance of counsel on the plea-bargaining process. Frye, ante, at 1386- 1387, ground that respondent knowingly and intelligently 132 S.Ct. 1399; see also Padilla v. Kentucky, 559 rejected two plea offers and chose to go to trial. U.S. - - , - - , 130 S.Ct. 1473, 1486, 176 The Michigan Supreme Court denied respondent's L.Ed.2d 284 (20 10); Hill, supra, at 57, 106 S.Ct. application for leave to file an appeal. People v. 366. During plea negotiations defendants are Cooper, 474 Mich. 905, 705 N.W.2d 118 (2005) "entitled to the effective assistance of competent (table). counsel." McMann v. Richardson, 397 U.S. 759, 771,90 S.Ct. 1441,25 L.Ed.2d 763 (1970). In.Hi/1, Respondent then filed a petition for federal the Court held "the two-part Strickland v. Washing- habeas relief under 28 U.S.C. § 2254, renewing his ton test applies to challenges to guilty pleas based ineffective-assistance-of-counsel claim. After find- on ineffective assistance of counsel.'~ 474 U.S., at ing, as required by the Antiterrorism and Effective 58, 106 S.Ct. 366. The perfonnance prong of Death Penalty Act of 1996 (AEDPA), that the Strickland requires a defendant to show " 'that Michigan Court of Appeals had unreasonably ap- counsel's representation fell below an objective plied the constitutional standards for effective as- standard of reasonableness.' "474 U.S., at 57, 106 sistance of counsel laid out in Strickland v. Wash- S.Ct. 366 (quoting Strickland, 466 U.S., at 688, 104 ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d S.Ct. 2052). In this case all parties agree the per- 674 (1984), and *1384Hil/ v. Lockhart, 474 U.S. formance of respondent's counsel was_,._ deficient 52, I 06 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Dis- when he advised respondent to reject the plea offer trict Court granted a conditional writ. Cooper 1'. on the grounds he could not be convicted at trial. In Lafler, No. 06-11068, 2009 WL 817712, *10 light of this concession, it is unnecessary for this (E.D.Mich., Mar. 26, 2009), App. to Pet. for Cert. Court to explore the issue. 41a-42a. To remedy the violation, the District Court ordered "specific performance of The question for this Court is how to apply [respondent's] original plea agreement, for a min- Strickland's prejudice test where ineffective assist- imum sentence in the range of fifty-one to eighty- ance results in a rejection of the plea offer and the five months." !d., at *9, App. to Pet. for Cert. 41a. defendant is convicted at the ensuing trial."

The United States Court of Appeals for the B Sixth Circuit affirmed, 376 Fed.Appx. 563 (20 I 0), [5][6] To establish Strickland prejudice a de- finding "[e]ven full deference under AEDPA can- fendant must "show that there is a reasonable prob- not salvage the state court's decision," id., at 569. ability that, but for counsel's unprofessional errors,

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the result of the proceeding would have been differ- 376, 380-381. (C.A.2 1998) (per curiam); United ent." !d., at 694, 104 S.Ct. 2052. In the context of Stales v. Day. 969 F.2d 39, 43-45 (C.A.3 1992); pleas a defendant must show the outcome of the Beckham v. Wainwright, 639 F.2d 262, 267 (C.A.5 plea process would have been different with com- 1981 ); Julian v. Bartley, 495 F .3d 487, 498-500 petent advice. See Frye, ante, at 1388 - 1389, 132 (C.A.7 2007); Wanaree v. Ault, 259 F.3d 700, S.Ct. 1399 (noting that Strickland's inquiry, as ap- 703-704 (C.A.8 200 I); Nunes v. Mueller. 350 F.3d plied to advice with respect to plea bargains, turns 1045, 1052-1053 (C.A.9 2003); Williams v. Jones, on "whether 'the result of the proceeding would 571 F.3d 1086, 1094-1095 (C.A.IO 2009) (per have been different' "(quoting Strickland, supra, at curiam); United States v. Gaviria. 116 F.3d 1498, 694, 104 S.Ct. 2052)); see also Hill, 474 U:S., at 1512-1514 (C.A.D.C.I997) (per curiam). 59, I06 S.Ct. 366 ("The ... 'prejudice,' requirement ... focuses on whether counsel's constitutionally in- Petitioner and the Solicitor General propose a effective performance affected the outcome of the different, far more narrow, view of the Sixth plea process"). In Hill, when evaluating the peti- Amendment. They contend there can be no finding tioner's claim that ineffective assistance led to the of Strickland prejudice arising from plea bargaining improvident acceptance of a guilty plea, the Court if the defendant is later convicted at a fair trial. The required the petitioner to show "that there is a reas- three reasons petitioner and the Solicitor General onable probability that, but for counsel's errors, offer for their approach are unpersuasive. *1385 [the defendant] would not have pleaded [8][9][10][11][12][13] First, petitioner and the guilty and would have insisted or. going to trial." Solicitor General claim that the sole purpose of the !hid. Sixth Amendment is to protect the right to a fair tri- [7] In contrast to Hill, here the ineffective ad- al. Errors before trial, they argue, are not cogniz- vice led not to an offer's acceptance but to its rejec- able under the Sixth Amendment unless they affect tion. Having to stand trial, not choosing to waive it, the fairness of the trial itself. See Brief for Petition- is the prejudice alleged. In these circumstances a er 12-21; Brief for United States as Amicus Curiae defendant must show that but for the ineffective ad- 10-12. The Sixth Amendment, however, is not so vice of counsel there is a reasonable probability that narrow in its reach. Cf. F1ye, anre, at 1388, 132 the plea offer would have been presented to the S.Ct. 1399 (holding that a defendant can show pre- court (i.e., that the defendant would have accepted judice under Strickland even absent a showing that the plea and the prosecution would not have with- the deficient perfonnance precluded him from go- drawn it in light of intervening circumstances), that ing to trial). The Sixth Amendment requires effect- the court would have accepted its terms, and that ive assistance of counsel at critical stages of a crim- the conviction or sentence, or both, under the of- inal proceeding. Its protections are not designed fer's term~ would have been less severe than under simply to protect the trial, even though "counsel's the judgment and sentence that in fact were im- absence [in these stages] may derogate from the ac- posed. Here, .the Court of Appeals for the Sixth Cir- cused's right to a fair trial." United States v. Wade. cuit agreed with that test for Strickland prejudice in 388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 the context of a rejected plea bargain. This is con- ( 1967). The constitutional guarantee applies to pre- sistent with the test adopted and applied by other trial critical stages that are part of the whole course appellate courts without demonstrated difficulties of a criminal proceeding, a proceeding in which de- or systemic disruptions. See 3 76 Fed./\ppx., at fendants cannot be presumed to make critical de- 571-573; see also, e.g., United Stares v. Rodriguez cisions without counsel's advice. This is consistent, Rodriguez, 929 F.2d 747, 753, n. I (C.A.l 1991) too, with the rule that defendants have a right to ef- (per curiam); United States v. Gordon. 156 F.3d fective assistance of counsel on appeal, even

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though that cannot in any way be characterized as [14] In the instant case respondent went to trial part of the trial. See, e.g., Hulbert v. Michigan, 545 rather than accept a plea deal, and it is conceded U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); this was the result of ineffective assistance during Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 the plea negotiation process. Respondent received a L.Ed.2d 821 ( 1985). The precedents also establish more severe sentence at trial, one 3 1/2 times more that there exists a right to counsel during sentencing severe than he likely would have received by plead- in both noncapital, see *1386Giover v. United ing guilty. Far from curing the error, the trial States, 531 U.S. 198, 203-204, 121 S.Ct. 696, 148 caused the injury from the error. Even if the trial it- L.Ed.2d 604 (200 I); Mempa v. Rhay, 389 U.S. 128, self is free from constitutional flaw, the ~efendant 88 S.Ct. 254, 19 L.Ed.2d 336 ( 1967), and capital who goes to trial instead of taking a more favorable cases, see Wiggins v. Smith, 539 U.S. 510,538, 123 plea may be prejudiced from either a .conviction on S.Ct. 2527, 156 L.Ed.2d 4 71 (2003). Even though more serious counts or the imposition of a more sentencing does not concern the defendant's guilt or severe sentence. innocence, ineffective assistance of counsel during a sentencing hearing can result in Strickland preju- Second, petitioner claims this , Court refined dice because "any amount of [additional] jail time Strickland 's prejudice analysis in Fretwell to add has Sixth Amendment significance." Glover, supra, an additional requirement that the defendant show at 203, 121 S.Ct. 696. that ineffective assistance of counsel led to his be- ing denied a substantive or procedural right. Brief The Court, moreover, has not followed a rigid for Petitioner 12-13. The Court has rejected the ar- rule that an otherwise fair trial remedies errors not gument that Fretwell modified Strickland before occurring at the trial itself. It has inquired instead and does so again now. See Williams v. Taylor, 529 whether the trial cured the particular error at issue. U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 Thus, in Vasquez v. Hillery, 474 U.S. 254, 106 (2000) ("The Virginia Supreme Court erred in hold- S.Ct. 617, 88 L.Ed.2d 598 ( 1986), the deliberate ex- ing that our decision in Lockhart v. Fretwell, 506 clusion of all African-Americans from a grand jury U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), was prejudicial because a defendant may have been modified or in some way supplanted the rule set tried on charges that would not have been brought down in Strickland "); see also Glover, supra, at at all by a properly constituted grand jury. !d., at 203, 121 S.Ct. 696 ("The Court explained last Term 263, I 06 S.Ct. 617; see Ballard v. United States, [in Williams ] that our holding in Lockhart does not 329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 supplant the Strickland analysis"). ( 1946) (dismissing an indictment returned by a grand jury from which women were excluded); see [ 15] Fretwell could not show Strickland preju- also Stirone v. United States, 361 U.S. 212, dice resulting from his attorney's failure to object to 218-219, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) the use of a sentencing factor the Eighth Circuit had (reversing a defendant's conviction because the jury erroneously (and temporarily) found to be imper- may have based its verdict on acts not charged in missible. Fretwell, 506 U.S., at 373, 113 S.Ct. 838. the indictment). By contrast, in United States v. Because the objection upon which his ineffective- Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d assistance-of-counsel claim was premised was mer- 50 ( 1986), the complained-of error was a violation itless, Fretwell could not demonstrate an error en- of a grand jury rule meant to ensure probable cause titling him to relief. The case presented the existed to believe a defendant was guilty. A sub- "unusual circumstance where the defendant at- sequent trial, resulting in a verdict of guilt, cured tempts to demonstrate prejudice *1387 based on this error. See id., at 72-73, 106 S.Ct. 938. considerations that, as a matter of law, ought not in- form the inquiry." Ibid. (O'Connor, J., concurring).

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See also ibid. (recognizing "[t]he determinative judice can be shown if loss of the plea opportunity question-whether there is a reasonable probability led to a trial resulting in a conviction on more seri- that, but for counsel's unprofessional errors, the res- ous charges or the imposition of a more severe sen- ult of the proceeding would have been differ- tence. ent-remains unchanged" (internal quotation marks and citadon omitted)). It is for this same reason a [ 17]( 18] It is, of course, true that defendants defendant cannot show prejudice based on counsel's have "no right to be offered a plea ... nor a federal refusal to present perjured testimony, even if such right that the judge accept it." Frye, ante, at 1388 - testimony might have affected the outcome of the 1389, 132 S.Ct. 1399. In the circumstances here, case. See Nix v. Whiteside, 475 U.S. 157, 175, 106 that is beside the point. If no plea offer is made, or S.Ct. 988,89 L.Ed.2d 123 (1986) (holding first that a plea deal is accepted by the defendant but rejected counsel's refusal to present perjured testimony by the judge, the issue raised here simply does not breached no professional duty and second that it arise. Much the same reasoning guides cases that cannot establish prejudice under Strickland). find criminal defendants have a right to effective assistance of counsel in direct appeals even though [ 16] Both Fretwell and Nix are instructive in the Constitution does not require States to provide a that they demonstrate "there are also situations in system of appellate review at all. See Evitts, 469 wl1ich it would be unjust to characterize the likeli- U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; see also hood of a different outcome as legitimate Douglas v. Cal(fornia, 372 U.S. 353, 83 S.Ct. 814, 'prejudice,' " Williams. supra, at 391-392, 120 9 L.Ed.2d 811 (1963). As in those cases, "[w]hen a S.Ct. 1495, because defendants would receive a State opts to act in a field where its action has sig- windfall as a result of the application of an incor- nificant discretionary elements, it must nonetheless rect legal principle or a defense strategy outside the act in accord with the dictates of the Constitution." law. Here, however, the injured client seeks relief Evitts, supra, at 40 l, I 05 S.Ct. 830. from counsel's failure to meet a valid legal stand- ard, not from counsel's refusal to violate it. He [ 19] Third, petitioner seeks to preserve the con- maintains that, absent ineffective counsel, he would viction obtained by the State by arguing that the have accepted a plea offer for a sentence the pro- purpose of the Sixth Amendment is to ensure "the secution evidently deemed consistent with the reliability of [a] conviction following trial." Brief sound administration of criminal justice. The favor- for Petitioner 13. This argument, too, fails to com- able sent~_nce that eluded the defendant in the crim- prehend the full scope of the Sixth Amendment's inal proceeding appears to be the sentence he or protections; and it is refuted*1388 by precedent. others in his position would have received in the or- Strickland recognized "(t]he benchmark for judging dinary course, absent the failings of counsel. See any claim of ineffectiveness must be whether coun- Bibas, Regulating the Plea-Bargaining Market: sel's conduct so undermined the proper functioning From Caveat Emptor to Consumer Protection, 99 of the adversarial process that the trial cannot be re- Cal. L.Rev. 1117, 113 8 (20 II) ("The expected lied on as having produced a just result." 466 U.S., post-trial sentence is imposed in only a few percent at 686, 104 S.Ct. 2052. The goal of a just result is of cases. It is like the sticker price for cars: only an not divorced from the reliability of a conviction, ignorant,., ill-advised consumer would view full see United States v. Cronic, 466 U.S. 648, 658, 104 price as the norm and anything less a bargain"); see S.Ct. 2039, 80 L.Ed.2d 657 (1984); but here the also Frye, ante, at 1386 -- 1387, 132 S.Ct. 1399. If a question is not the fairness or reliability of the trial plea bargain has been offered, a defendant has the but the fairness and regularity of the processes that right to effective assistance of counsel in consider- preceded it, which caused the defendant to lose be- ing whether to accept it. If that right is denied, pre- nefits he would have received in the ordinary

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course but for counsel's ineffective assistance. the guarantee of a fair trial as a backstop that inocu- lates any errors in the pretrial process"). •. [20] There are instances, furthermore, where a reliable trial does not foreclose relief when counsel c has failed to assert rights that may have altered the Even if a defendant shows ineffective assist- outcome. In Kimmelman v. Morrison, 477 U.S. 365, ance of counsel has caused the rejection of a plea I 06 S.Ct. 2574, 91 L.Ed.2d 305 ( 1986), the Court leading to a trial and a more severe sentence, there held that an attorney's failure to timely move to is the question of what constitutes an appropriate suppress evidence during trial could be grounds for remedy. That question must now be addressed. federal habeas relief. The Court rejected the sug- gestion that the "failure to make a timely request [21] Sixth Amendment remedies sJ:wuld be for the exclusion of illegally seized evidence" could "tailored to the injury suffered from the constitu- not be the basis for a Sixth Amendment violation tional violation and should not unnecessarily in- because the evidence "is .'typically reliable and of- fringe on competing interests." United States v. ten the most probative information bearing on the Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 guilt or innocence of the defendant.' " I d., at 379, L.Ed.2d 564 (1981). Thus, a remedy must 106 S.Ct. 2574 (quoting Stone v. Powell, 428 U.S. "neutralize the taint" of a constitutional violation, 465, 490, 96 S.Ct. 3037,49 L.Ed.2d 1067 (1976)). id., at 365, 101 S.Ct. 665, while at the same time "The constitutional rights of criminal defendants," not grant a windfall to the defendant or needlessly the Court observed,-· "are granted to the innocent squander the considerable* 1389 resources~the State and the guilty alike. Consequently, we decline to properly invested in the criminal prosecution. See hold either that the guarantee of effective assistance Mechanik, 475 U.S., at 72, 106 S.Ct. 938 ("There- of counsel belongs solely to the innocent or that it versal of a conviction entails substantial social attaches only to matters affecting the determination costs: it forces jurors, witnesses, courts, the prosec- of actual guilt." 477 U.S., at 380, 106 S.Ct. 2574. ution, and the defendants to expend further time, The same logic applies here. The fact that respond- energy, and other resources to repeat a trial that has ent is guilty does not mean he was not entitled by already once taken place; victims may be asked to the Sixth Amendment to effective assistance or that relive their disturbing experiences"). he suffered no prejudice from his attorney's defi- [22] The specific injury suffered by defendants cient performance during plea bargaining. who decline a plea offer as a result of ineffective In the end, petitioner's three arguments amount assistance of counsel and then receive a greater sen- to one general contention: A fair trial wipes clean tence as a result of trial can come in at least one of any deficient" performance by defense counsel dur- two forms. In some cases, the sole advantage a de- ing plea bargaining. That position ignores the real- fendant would have received under the plea is a ity that criminal justice today is for the most part a lesser sentence. This is typically the case when the system of pleas, not a system of trials. Ninety-seven charges that would have been admitted as part of percent of federal convictions and ninety-four per- the plea bargain are the same as the charges the de- cent of state convictions are the result of guilty fendant was convicted of after trial. In this situation pleas. See Frye, ante, at 1386, 132 S.Ct. 1399. As the court may conduct an evidentiary hearing to de- explained in Frye, the right to adequate assistance termine whether the defendant has shown a reason- . of counsel cannot be defined or enforced without able probability that but for counsel's errors he· taking account of the central role plea bargaining would have accepted the plea. If the showing is plays in securing convictions and determining sen- made, the court may exercise discretion in determ- tences. Ibid. ("[I]t is insufficient simply to point to ining whether the defendant should receive the term of imprisonment the government offered in the

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plea, the sentence he received at trial, or something Petitioner argues that implementing a remedy in between. here will open the floodgates to litigation by de- fendants seeking to unsettle their convictions. See [23] In some situations it may be that resenten- Brief for Petitioner 20. Petitioner's concern is mis- cing alone will not be full redress for the constitu- placed. Courts have recognized claims of this sort tional injury. If, for example, an offer was for a for over 30 years, see supra, at 1384- 1385, and guilty plea to a count or counts less serious than the yet there is no indication that *1390 the system is ones for which a defendant was convicted after tri- overwhelmed by these types of suits or that defend- al, or if a mandatory sentence confines a judge's ants are receiving windfalls as a result of strategic- sentencing discretion after trial, a resentencing ally timed Strickland claims. See also Padilla, 559 based on"·the conviction at trial may not suffice. U.S., at--, 130 S.Ct. at 1484-1485 ("We con- See, e.g., ·Williams, 571 F.3d, at I 088; Riggs v. fronted a similar 'floodgates' concern in Hill," but a Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In "flood did not follow in that decision's wake"). In these circumstances, the proper exercise of discre- addition, the "prosecution and the trial courts may tion to remedy the constitutional injury may be to adopt some measures to help ensure against late, require the prosecution to reoffer the plea proposal. frivolous, or fabricated claims after a later, less ad- Once this has occurred, the judge can then exercise vantageous plea offer has been accepted or after a discretion in deciding whether to vacate the convic- trial leading to conviction." FlJ'e, ante, at 1408 - tion from trial and accept the plea or leave the con- 1409, 132 S.Ct. 1399. See also ibid. (listing proced- • viction undisturbed. ures currently used by various States). This, too, will help ensure against meritless claims. In implementing a remedy in both of these situ- ations, the trial court must weigh various factors; III and the boundaries of proper discretion need not be [26] The standards for ineffective assistance of defined here. Principles elaborated over time in de- counsel when a defendant rejects a plea offer and cisions of state and federal courts, and in statutes goes to trial must now be applied to this case. Re- and rules, will serve to give more complete guid- spondent brings a federal collateral challenge to a ance as to. the factors that should bear upon the ex- state-court conviction. Under AEDP A, a federal ercise of the judge's discretion. At this point, court may not grant a petition for a writ of habeas however, it suffices to note two ~.:onsiderations that corpus unless the state court's adjudication on the are of relevance. merits was "contrary to, or involved an unreason- able application of, clearly established Federal law, (24](25] First, a court may take account of a as detertnined by the Supreme Court of the United defendant's earlier expressed willingness, or unwill- States." 28 U.S.C. § 2254(d)(l ). A decision is con- ingness, to accept responsibility for his or her ac- trary to clearly established law if the state court tions. Second, it is not necessary here to decide as a "applies a rule that contradicts the governing law constitutional rule that a judge is required to pre- set forth in [Supreme Court] cases." Williams v. scind (that is to say disregard) any information con- Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 cerning the crime that was discovered after the plea L.Ed.2d 389 (2000) (opinion for the Court by offer was made. The time continuum makes it diffi- O'Connor, J.). The Court of Appeals for the Sixth cult to restore the defendant and the prosecution to Circuit could not determine whether the Michigan the precise positions they occupied prior to the re- Court of Appeals addressed respondent's ineffect- jection of the plea offer, but that baseline can be ive-assistance-of-counsel claim or, if it did, "what consulted in finding a remedy that does not require the court decided, or even whether the correct legal the prose~ution to incur the expense of conducting rule was identified." 376 Fed.Appx., at 568-569. a new trial.

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[27] The state court's decision may not be quite by all parties. The case comes to us on that assump- so opaque as the Court of Appeals for the Sixth Cir- tion, so there is no need to address this question. cuit thought, yet the federal court was correct to note that AEDPA does not present a bar to granting [28] As to prejudice, respondent has shown that respondent relief. That is because the Michigan but for counsel's deficient performance there is a Court of Appeals identified respondent's ineffect- reasonable probability he and the trial court would ive-assistance-of-counsel claim but failed to apply have accepted the guilty plea. See 376 Fed.Appx., Strickland to assess it. Rather than applying Strick- at 571-572. In addition, as a result of not accepting land, the state court simpiy found that respondent's the plea and being convicted at trial, respondent re- rejection of the plea was knowing and voluntary. ceived a minimum sentence 3 & half; times greater Cooper. 2005 WL 599740, *I, App. to Pet.. for than he would have received under the plea. The Cert. 45a. An inquiry into whether the rejection of a standard for ineffective assistance under Strickland plea is knowing and voluntary, however, is not the has thus been satisfied. correct means by which to address a claim of inef- "" [29] As a remedy, the District Court ordered fective assistance of counsel. See Hill, 474 U.S., at specific performance of the original plea agree- 57-59, 106 S.Ct. at 370 (applying Strickland to as- ment. The correct remedy in these. circumstances, sess a claim of ineffective assistance of counsel however, is to order the State to reoffer the plea arising out of the plea negotiation process). After agreement. Presuming respondent accepts the offer, stating the incorrect standard, moreover, the state the state trial court can then exercise its discretion court then made an irrelevant observation about in determining whether to vacate the convictions counsel's performance at trial and mischaracterized and resentence respondent pursuant to the plea respondent's claim as a complaint that his attorney agreement, to vacate only some of the convictions did not obtain a more favorable plea bargain. By and resentence respondent accordingly, or to leave failing to apply Strickland to assess the ineffective- the convictions and sentence from trial undisturbed. assistance-of-counsel claim respondent raised, the See Mich. ·ct. Rule 6.302(C)(3) (20 II) ("If there is state court's adjudication was contrary to clearly es- a plea agreement and its terms provide for the de- tablished federal law. And in that circumstance the fendant's plea to be made in exchange for a specific federal courts in this habeas action can determine sentence disposition or a prosecutorial sentence re- the principles necessary to grant relief. See Panetti commendation, the court may ... reject the agree- v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, ment"). Today's decision leaves open t~'- the trial 168 L.Ed.2d 662 (2007). court how best to exercise that discretion in all the Respondent has satisfied Strickland 's two-part circumstances of the case. test. Regarding performance, perhaps it could be The judgment of the Court of Appeals for the accepted that it is unclear whether respondent's Sixth Circuit is vacated, and the case is remanded counsel believed respondent could not be convicted for further proceedings consistent with this opinion. for assault with intent to murder as a matter of law because the shots hit Mundy below the waist, or It is so ordered. whether he simply *1391 thought this would be a persuasive argument to make to the jury to show Justice SCALIA, with whom Justice THOMAS lack of specific intent. And, as the Court of Appeals joins, and with whom THE CHIEF JUSTICE joins for the Sixth Circuit suggested, an erroneous stra- as to all but Part IV, dissenting. tegic prediction about the outcome of a trial is not "If a plea bargain has been offered, a defendant necessarily deficient performance. Here, however, has the right to effective assistance of counsel in the fact of deficient performance has been conceded considering whether to accept it. If that right is

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denied, prejudice can be shown if loss of the plea all, even though its case is weak-thereby exclud- opportuni(V led to a trial resulting in a conviction ing the defendant from "the criminal justice sys- on more serious charges or the imposition of a tem"? more severe sentence. "Ante, at 1387. Anthony Cooper received a full and fair trial, "The inquiry' then becomes how to define the was found guilty of all charges by a unanimous duty and responsibilities of defense counsel in the jury, and was given the sentence that the law pre- plea bargain process. This is a difficult question scribed. The Court nonetheless concludes that .... Bargaining is, by its nature, defined to a sub- Cooper is entitled to some sort of habeas corpus re- stantial degree by personal style.... This case lief (perhaps) because his attorney's allegedly in- presents neither the necessity nor the occasion to competent advice regarding a plea offer caused hi·m define the duties of defense .counsel in those re- to receive a full and fair trial. That conclusion is spects .... " Missouri v. Frye, ante, at 1408, 132 foreclosed by our precedents. Even if it were not S.Ct. 1399. foreclosed, the constitutional right to effective plea- bargainers that it establishes is at least a new rule of With those words from this and the companion law, which does not undermine the Michigan Court case, the. Court today opens a whole new field of of Appeals' decision and therefore cannot serve as constitutionalized criminal procedure: plea- the basis for habeas relief. And the remedy the bargaining law. The ordinary criminal process has Court announces-namely, whatever the state trial become too long, too expensive, and unpredictable, court in its discretion prescribes, down to and in- in no small part as a consequence of an intricate cluding no remedy at all-is unheard-of and quite federal Code of Criminal Procedure imposed on the absurd for violation of a constitutional right. I re- States by this Court in pursuit of perfect justice. spectfully dissent. See Friendly, The Bill of Rights as a Code of Crim- inal Procedure, 53 Cal. L.Rev. 929 ( 1965). The Court now moves to bring perfection to the altern- This case and its companion, Missouri v. F1ye, ative in which prosecutors and *1392 defendants -U.S.--, 132 S.Ct. 1399,- L.Ed.2d - - , have sought relief. Today's opinions deal with only raise relatively straightforward questions about the two aspects of counsel's plea-bargaining inad- scope of the right to effective assistance of counsel. equacy, and leave other aspects (who knows what Our case law originally derived that right from the they might be?) to be worked out in further consti- Due Process Clause, and its guarantee of a fair trial, tutional litigation that will burden the criminal pro- see United States v. Gonzalez-Lopez, 548 U.S. 140, cess. And it would be foolish to think that 147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), but "constitutional" rules governing counsel's behavior the seminal case of Strickland \'. Washington, 466 will not be followed by rules governing the prosec- U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674 (1984), ution 's behavior in the plea-bargaining process that located the right within the Sixth Amendment. As the Court today announces " 'is the criminal justice the Court notes, ante, at 1394, the right to counsel system,' " Frye, ante, at 1407, 132 S.Ct. 1399 does not begin at trial. It extends to "any stage of (quoting approvingly from Scott & Stuntz, Plea the prosecution, formal or informal, in court or out, Bargaining as Contract, 101 Yale L.J. 1909, 1912 where counsel's absence might derogate from the (1992) (hereinafter Scott)). Is it constitutional, for accused's right to a fair trial." United States v. example, for the prosecution to withdraw a plea of- Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 fer that h~s already been accepted? Or to withdraw L.Ed.2d 1149 (1967). Applying that principle, we an offer before the defense has had adequate time to held that the "entry of a guilty plea, whether to a consider and accept it? Or to make no plea offer at misdemeanor or a felony charge, ranks as a 'critical

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stage' at which the right to counsel adheres." Iowa S.Ct. 2052. That is what Strickland 's requirement ''· Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 of "prejudice" consists of: Because the right to ef- L.Ed.2d 209 (200~); see also Hill v. Lockhart, 474 fective assistance has as its purpose the assurance U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). of a fair trial, the right is not infringed unless coun- And it follows from this that acceptance of a plea sel's mistakes call into question the basic justice of offer is a critical stage. That, and nothing more, is a defendant's conviction or sentence. That has been, the point of the Court's observation in Padilla v. until today, entirely clear. A defendant must show Kentucky, 559 U.S. - - , - - , 130 S.Ct. 1473, "that counsel's errors were so serious as to deprive 1486, 176 L.Ed.2d 284 (20 10), that "the negotiation the defendant of a fair trial, a trial whose result is of a plea bargain is a critical phase of litigation for reliable." !d., at 687, 104 S.Ct. 2052. See also purposes of the Sixth Amendment right to effective Gonzalez-Lopez, supra, at 147, 126 S.Ct. 2557. assistance of counsel." The defendant in Padilla Impairment of fair trial is how we distinguish had accepted the plea bargain and pleaded guilty, between unfortunate attorn_ey error and error of abandoning his right to a fair trial; he was entitled . . const1tut10na . 'fiJcance. FNl I signi to advice of competent counsel before he did *1393 so. The Court has never held that the rule articu- FN 1. Rather than addressing the constitu- lated in Padilla, Tovar, and Hill extends to all as- tional origins of the right to e.ffedive coun- pects of plea negotiations, requiring not just advice sel, the Court responds to the broader of competent counsel before the defendant accepts claim (raised by no one) that "the sole pur- a plea bargain and pleads guilty, but also the advice pose of the Sixth Amendment is to protect of competent counsel before the defendant rejects a the right to a fair trial." Ante, at 1385 plea bargain and stands on his constitutional right (emphasis added). Cf. Brief for United to a fair trial. The latter is a vast departure from our States as Amicus Curiae 10-12 (arguing past cases, protecting not just the constitutionally that the "purpose of the Sixth Amendment prescribed right to a fair adjudication of guilt and right to counsel is to secure a lair trial" punishment, but a judicially invented right to ef- (emphasis added)); Brief for Petitioner fective plea bargaining. 12-21 (same). To destroy that straw man, the Court cites cases in which violations of It is also apparent from Strickland that bad plea rights other than the right to effective bargaining has nothing to do with ineffective assist- counsel-and, perplexingly, even rights ance of counsel in the constitutional sense. Strick- found outside the Sixth Amendment and land explained that "[i]n giving meaning to the re- the Constitution entirely-were not cured quirement [of effective assistance], ... we must take by a subsequent trial. Vasquez v. Hillery, its purpose-to ensure a fair trial-as the guide.". 474 U.S. 254, 106 S.Ct. 617, 88- L.Ed.2d 466 U.S., at 686, I 04 S.Ct. 2052. Since "the right to 598 (1986) (violation of equal protection the effective assistance of counsel is recognized not in grand jury selection); Ballard v. United for its own sake, but because of the effect it has on States, 329 U.S. 187, 67 S.Ct. 261, 91 the ability of the accused to receive a fair trial," L.Ed. 181 (1946) (violation of statutory United Stales v. Cronic, 466 U.S. 648, 658, 104 scheme providing that women serve on jur- S.Ct. 2039, 80 L.Ed.2d 657 ( 1984), the ies); Stirone v. United States, 361 U.S. "benchmark" inquiry in evaluating any claim of in- 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) effective assistance is whether counsel's perform- (violation of Fifth Amendment ri¥ht to in- ance "so undermined the proper functioning of the dictment by grand jury). Unlike the right to adversarial process" that it failed to produce a reli- effective counsel, no showing of prejudice ably "just result." Strickland, 466 U.S., at 686, l 04 is required to make violations of the rights

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at issue m Vasquez, Ballard, and Stirone principles of double jeopardy would likely make fi- complete. See Vasquez. supra. at 263-264, nal. See id.. at 383-385, 113 S.Ct. 838 (STEVENS, I 06 S.Ct. 617 ("[D]iscrimination in the J., dissenting); Bullington v. Missouri, 451 U.S. grand jury undermines the structural integ- 430, 101 S.Ct. 1852,68 L.Ed.2d 270 (1981). By the rity of the criminal tribunal itself, and is time Fretwell's claim came before us, however, the not amenable to harmless-error review"); Circuit law had been overruled in light of one of Ballard, supra, at 195, 67 S.Ct. 261 our cases. We determined that a prejudice analysis ("[R]eversible error does not depend on a "focusing solely on mere outcome determination, showing of prejudice in an individual without attention to whether the result of the pro- case"); Stirone, supra, at 217, 80 S.Ct. 270 ceeding was fundamentally unfair or unreliable," ("Deprivation of such a basic right is far would be defective. Fretwell. 506 U.S., at 369, 113 too serious to be 'treated as nothing more S.Ct. 838. Because counsel's error did not "deprive than a variance and then dismissed as the defendant of any substantive or procedural right harmless error"). Those cases are thus ir- to which the law entitles him," the defendant's sen- relevant to the question presented here, tencing proceeding was fair and its result was reli- which is whether a defendant can establish able, even though counsel's error may have affected prejudice under Strickland v. Washington, its outcome. !d., at 372, 113 S.Ct. 838. In Williams 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d v. Taylor, 529 U.S. 362, 391-393, 120 S.Ct. 1495, 674 ( 1984), while conceding the fairness 146 L.Ed.2d 389 (2000), we explained that even of his conviction, sentence, and appeal. though Fretwell did not mechanically apply an out- come-based test for prejudice, its reasoning was *1394 To be sure, Strickland stated a rule of perfectly consistent with Strickland. "Fretwell's thumb for measuring prejudice which, applied counsel had not deprived him of any substantive or blindly and out of context, could support the procedural right to which the law entitled him." 529 Court's holding today: "The defendant must show 2 U.S. at 392, 120 S.Ct. l495.FN that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the FN2. Kimmelman v. Morrison, 477 U.S. proceeding would have been different." 466 U.S., at 365, l 06 S.Ct. 2574, 91 L.Ed.2d 305 694, I 04 S.Ct. 2052. Strickland itself cautioned, ( 1986), cited by the Court, ante, at 1396 - however, that its test was not to be applied in a 1397, does not contradict this principle. mechanical fashion, and that courts were not to di- That case, which predated Fretwell and vert their "ultimate focus" from "the fundamental Williams, considered whether our holding fairness of the proceeding whose result is being that Fourth Amendment claims fully litig- challenged." !d., at 696, 104 S.Ct. 2052. And until ated in state court cannot be raised in fed- today we have followed that course. eral habeas "should be extended to Sixth Amendment claims of ineffective assist- In Lockhart v. Fretwell, 506 U.S. 364, 113 ance of counsel where the principal allega- S.Ct. 838, 122 L.Ed.2d 180 ( 1993), the deficient tion and manifestation of inadequate rep- performance at issue was the failure of counsel for resentation is counsel's failure to file a a defendant who had been sentenced to death to timely motion to suppress evidence al- make an objection that would have produced a sen- legedly obtained in violation of the Fourth tence of life imprisonment instead. The. objection Amendment." 477 U.S., at 368, 106 S.Ct. was fully supported by then-extant Circuit law, so 2574. Our negative answer to that question that the sentencing court would have been com- had nothing \O do with the issue here. The pelled to sustain it, producing a life sentence that parties in Kimmelman had not raised the

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question "whether the admission of illeg- Fretwell, and Williams all instruct that the pure out- ally seized but reliable evidence can ever come-based test on which the Court relies is an er- constitute 'prejudice' under Strickland roneous measure of cognizable prejudice. In ignor- "-a question similar to the one presented ing Strickland 's "ultimate focus ... on the funda- here-and the Court therefore did not ad- mental fairness of the proceeding whose result is dress it. !d., at 391, I 06 S.Ct. 2574 being challenged," 466 U.S., at 696, I 04 S.Ct. (Powell, J., concurring in judgment); see 2052, the Court has lost the forest for the trees, also id., at 380, 106 S.Ct. 2574. Kimmel- leading it to accept what we have previously rejec- man made clear, however, how the answer ted, the "novel argument that constitutional rights to that question is to be determined: "The are infringed by trying the defendant rather than ac- essence of an ineffective-assistance claim cepting his plea of guilty." Weatherford, ~supra, at is that counsel's unprofessional errors so 561, 97 S.Ct. 837. upset the adversarial balance between de- fense and prosecution that the trial was II rendered unfair and the verdict rendered Novelty alone is the second, independent reas- suspect, " id., at 374, 106 S.Ct. 2574 on why the Court's decision is wrong. This case (emphasis added). "Only those habeas peti- arises on federal habeas, and hence is governed by tioners who can prove under Strickland the Antiterrorism and Effective Death Penalty Act that they have been denied a fair trial ... of 1996 (AEDPA). Since, as the Court.. acknow- will be granted the writ," id., at 382, I 06 ledges, the Michigan Court of Appeals adjudicated S.Ct. 2574 (emphasis added). In short, Cooper's ineffective-assistance claim on the merits, Kimmelman 's only relevance is to prove AEDP A bars federal courts from granting habeas the Court's opinion wrong. relief unless that court's decision was "contrary to, or involved an unreasonable application of, clearly Those precedents leave no doubt about the an- established Federal law, as determined by the Su- swer to the question presented here. *1395 As the preme Court of the United States." 28 U.S.C. § Court itself observes, a criminal defendant has no 2254(d)( I). Yet the Court concludes that § right to a plea bargain. Ante, at 1395 - 1396. 2254(d)(l) does not bar relief here, because "[b]y "[T]here is no constitutional right to plea bargain; failing to apply Strickland to assess the ineffective- the prosecutor need not do so if he prefers to go to assistance-of-counsel claim respondent raised, the trial." Weatherford v. Bursey, 429 U.S. 545, 561, 97 state court's adjudication was contrary to clearly es- S.Ct. 83 7, 51 L.Ed.2d 30 (1977). Counsel's mis- tablished federal law." Ante, at 1390. That is not so. takes in this case thus did not "deprive the defend- ant of a substantive or procedural right to which the The relevant portion of the Michigan Court of law entitles him," Williams, supra, at 393, 120 Appeals decision reads as follows: S.Ct. 1495. Far from being "beside the point," ante, "To establish ineffective assistance, the defend- at 1406, that is critical to correct application of our ant must demonstrate that his counsel's perform- precedents. Like Fretwell, this case "concerns the ance fell below an objective standard of reason- unusual circumstance where the defendant attempts ableness and that counsel's representation so pre- to demonstrate prejudice based on considerations judiced the defendant that he was deprived of a that, as a matter of law, ought not inform the in- fair trial. With respect to the prejudice aspect of quiry," 506 U.S., at 373, 113 S.Ct. 838 (O'Connor, the test, the defendant must demonstrate a reas- 1., concurring); he claims "that he might have been onable probability that, but for counsel's errors, denied 'a right the law simply does not recognize,' the result of the proceedings would ~.11ve been " id., at 375, 113 S.Ct. 838 (same). Strickland, different, and that the attendant proceedings were

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fundamentally unfair and unreliable. know and follow the law," Wooqford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 "Defendant challenges the trial court's finding (2002) (per curiam), a presumption borne out here after a Ginther hearing that defense counsel by the state court's recitation of the correct legal provided effective assistance to defendant during standard. the plea bargaining process. He contends that de- fense counsel failed to convey the benefits of the Since it is ambiguous whether the state court's plea offer to him and ignored his desire to plead holding was based on a lack of prejudice or rather guilty, and that these failures led him to reject a the court's factual determination that there had been plea offer that he now wishes to accept. However, no deficient perfonnance, to provide relief under the record shows that defendant knowingly and AEDP A this Court must conclude that both hold- intelligently rejected two plea offers and chose to ings would have been unreasonable applications of go to trial. The record fails to support defendant's clearly established law. See Premo v. Moore, 562 contentions that defense counsel's *1396 repres- U.S. - - , - - , 131 S.Ct. 733, 740-741, 178 entation was ineffective because he rejected a de- L.Ed.2d 649 (20 II). The first is impossible of do- fense based on [a] claim of self-defense and be- ing, since this Court has never held that a defendant cause he did not obtain a more favorable plea in Cooper's position can establish Strickland preju- bargain for defendant." People v. Cooper, No. dice. The Sixth Circuit thus violated AEDPA in 250583 (Mar. 15, 2005), App. to Pet. for Cert. granting habeas relief, and the Court now does the 45a, 2005 WL 599740, [at] * 1 (per curiam) same. (footnote and citations omitted). III The first paragraph above, far from ignoring It is impossible to conclude discussion of Strickland, recites its standard with . a good deal today's extraordinary opinion without commenting more accuracy than the Court's opinion. The second upon the remedy it provides for the unconstitutional paragraph, which is presumably an application of conviction. It is a remedy unheard-of in American the standard recited in the first, says that "defendant jurisprudence-and, I would be willing to bet, in knowingly and intelligently rejected two plea offers the jurisprudence of any other country. and chose to go to trial." This can be regarded as a denial that there was anything "fundamentally un- The Court requires Michigan to "reoffer the fair" about Cooper's conviction and sentence, so plea agreement" that was rejected because of bad that no Strickland prejudice had been shown. On advice from counsel. Ante, at 1391. That would in- the other hand, the entire second paragraph can be deed be a powerful remedy-but for the fact that regarded as a contention that Cooper's claims of in- Cooper's acceptance of that reoffered agreement is adequate representation were unsupported by the not conclusive. Astoundingly, "the state trial court record. The state court's analysis was admittedly can then exercise its discretion in determining not a model of clarity, but federal habeas corpus is whether to vacate the convictions and resentence •< a "guard against extreme malfunctions in the state respondent pursuant to the plea agreement, to va- criminal justice systems," not a license to penalize cate only some of the convictions and resentence a state court for its opinion-writing technique. Har- respondent accordingly, or to leave the convictions rington v. Richter, 562 U.S. - - , - - , 131 S.Ct. and sentence from -trial undisturbed. " Ibid. 770, 786, 178 L.Ed.2d 624 (20 11) (internal quota- (emphasis added). tion marks omitted). The Court's readiness to find Why, one might ask, require a "reoffer" of the error in the Michigan court's opmwn is plea agreement, and its acceptance by the defend- "inconsistent with the presumption that state courts ant? If the district court finds (as a necessary ele-

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ment, supposedly, of Strickland prejudice) that greater malefactor, much less for the purpose of Cooper would have accepted the original offer, and sparing the expense of trial. See, e.g., World Plea would thereby have avoided trial and conviction, Bargaining 344, 363-366 (S. Thaman ed. 20 10). In why not skip the reoffer-and-reacceptance minuet Europe, many countries adhere to what t,hey aptly and simply leave it to the *1397 discretion of the call the "legality principle" by requiring prosec- state trial court what the remedy shall be? The an- utors to charge all prosecutable offenses, which is swer, of course, is camouflage. Trial courts, after typically incompatible with the practice of charge- all, regularly accept or reject plea agreements, so bargaining. See, e.g., id., at xxii; Langbein, Land there seems to be nothing extraordinary about their Without Plea Bargaining: How the Germans Do It, accepting or rejecting the new one mandated by 78 Mich. L.Rev. 204, 210-211 (1979) (describing today's decision. But the acceptance or rejection of the "Legalita~sprinzip," or rule of compulsory pro- a plea agreement that has no status whatever under secution, in Germany). Such a system reflects an the United States Constitution is worlds apart from admirable belief that the law is the law, and those what this is: "discretionary" specification of a rem- who break it should pay the penalty provided. edy for an unconstitutional criminal conviction. In the United States, we have plea bargaining To be sure, the Court asserts that there are a-plenty, but until today it has been regarded as a "factors" which bear upon (and presumably limit) necessary evil. It presents grave risks of prosec- exercise of this discretion-factors that it is not utorial overcharging that effectively compels an in- prepared to specify in full, much less assign some nocent defendant to avoid massive risk by pleading determinative weight. "Principles elaborated over guilty to a lesser offense; and for guilty defendants time in decisions of state and federal courts, and in it often-perhaps usually-results in a~ sentence statutes and rules" will (in the Court's rosy view) well below what the law prescribes for the actual sort all that out. Ante, at 1389. I find it extraordin- crime. But even so, we accept plea bargaining be- ary that "statutes and rules" can specify the remedy cause many believe that without it our long and ex- for a criminal defendant's unconstitutional convic- pensive process of criminal trial could not sustain tion. Or that the remedy for an unconstitutional the burden imposed on it, and our system of crimin- conviction should ever be subject at all to a trial al justice would grind to a halt. See, e.g., Alschuler, judge's discretion. Or, finally, that the remedy Plea Bargaining and its History, 79 Colum. L.Rev. could ever include no remedy at all. I, 38 (1979).

I suspect that the Court'~ squeamishness in Today, however, the Supreme Court of the fashioning a remedy, and the incoherence of what it United States elevates plea bargaining from a ne- comes up with, is attributable to its realization, cessary evil to a constitutional entitlement. It is no deep down, that there is no real constitutional viola- longer a somewhat embarrassing adjunct to our tion here anyway. The defendant has been fairly criminal justice system; rather, as the Court an- tried, lawfully convicted, and properly sentenced, nounces in the companion case to this one, " 'it is and any "remedy" provided for this will do nothing the criminal justice system.' " Frye,Jante, at 1407, but undo the just results of a fair adversarial pro- 132 S.Ct. 1399 (quoting approvingly fr.om Scott cess. 1912). Thus, even *1398 though there is no doubt that the respondent here is guilty of the offense IV with which he was charged; even though he has re- In many-perhaps most-countries of the ceived the exorbitant gold standard of American world, American-style plea bargaining is forbidden justice_:__a full-dress criminal trial with its innumer- in cases as serious as this one, even for the purpose able constitutional and statutory limitations upon of obtaining testimony that enables conviction of a

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the evidence that the prosecution can briM forward, Justice AUTO, dissenting. and (in Michigan as in most States F ) the re- For the reasons set out in Parts I and II of quirement of a unanimous guilty verdict by impar- Justice SCALIA's dissent, the Court's holding in tial jurors; the Court says that his conviction is in- this case misapplies our ineffective-assist- valid because he was deprived of his constitutional ance-of-counsel case law and violates the require- entitlement to plea-bargain. ments of the Antiterrorism and Effective Death Penalty Act of 1996. Respondent received a trial FN3. See People v. Cooks, 446 Mich. 503, that was free of any identified constitutional error, 510, 521 N.W.2d 275, 278 (1994); 6 W. and, as a result, there is no basis for concluding that LaFave, J. Israel, N. King, & 0. Kerr, respondent suffered prejudice and certainly not for Criminal Procedure§ 22.1(e) (3d ed. 2007 granting habeas relief. and Supp. 2011-2012). The weakness in the Court's analysis is high- I am less saddened by the outcome of this case lighted by its opaque discussion of the remedy that than I am by what it says about this Court's attitude is appropriate when a plea offer is rejected due to toward criminal justice. The Court today embraces defective legal representation. If a defendant's Sixth the sportiilg-chance theory of criminal law, in Amendment rights are violated when deficient legal which the State functions like a conscientious advice about a favorable plea offer causes the op- casino-operator, giving each player a fair chance to portunity for that bargain to be lost, the only logical beat the house, that is, to serve less time than the remedy is to give the defendant the benefit of the law says he deserves. And when a player is ex- favorable deal. But such a remedy would cause ser- cluded from the tables, his constitutional rights ious injustice in many instances, as I believe the have been violated. I do not subscribe to that the- Court tacitly recognizes. The Court therefore es- ory. No one should, least of all the Justices of the chews the only logical remedy and relies on the Supreme Court. lower courts to exercise sound discretion in determ- ining what is to be done. *** Time will tell how this works out. The Court, Today's decision upends decades of our cases, for its part, finds it unnecessary to define "the violates a federal statute, and opens a whole new boundaries of proper discretion" in today's opinion. boutique of constitutional jurisprudence Ante, at 1389. In my view, requiring the prosecu- ("plea-bargaining law") without even specifying the tion to renew* 1399 an old plea offer would repres- remedies the boutique offers. The result in the ent an abuse of discretion in at least two circum- present case is the undoing of an adjudicatory pro- stances: first, when important new information cess that worked exactly as it is supposed to. Re- about a defendant's culpability comes to light after leased felon Anthony Cooper, who shot repeatedly the offer is rejected, and, second, when the rejec- and gravely injured a woman named Kali Mundy, tion of the plea offer results in a substantial ex- was tried and convicted for his crimes by a jury of penditure of scarce prosecutorial or judicial re- his peers, and given a punishment that Michigan's sources. elected representatives have deemed appropriate. Nothing about that result is unfair or unconstitu- The lower court judges who must implement tional. To the contrary, it is wonderfully just, and today's holding may-and I hope, will-do so in a infinitely., superior to the trial-by-bargain that way that mitigates its potential to produce unjust today's opinion affords constitutional status. I re- resi.1lts. But I would not depend on these judges to spectfully dissent. come to the rescue. The Court's interpretation of the Sixth Amendment right to counsel is unsound, and I

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therefore respectfully dissent.

U.S.,2012. Lafler v. Cooper 132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203

END OF DOCUMENT

©2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Ex Parte Moussazadeh

361 S.W. 3d 684 (T~x. Grim. App. February 15, 2012)

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[1]. Habeas Corpus 197 ~899

Court of Criminal Appeals of Texas. 197 Habeas Corpus Ex parte Max MOUSSAZADEH, Applicant. 197IV Operation and Effect of Determination; Res Judicata; Successive Proceedings Nos. AP-76,439, AP-74,185. 197k899 k. Dismissal or hearing on success- Feb. 15,2012. ive petitions; evidence. Most Cited Cases Court of Criminal Appeals would reconsider, Backgro~nd: After pleading guilty to murder, and on its own initiative, applicant's initial application after his murder conviction was affirmed on appeal, for writ of habeas corpus, which the Court had pre- 962 S.W.2d 261, applicant sought a writ of habeas viously denied, and, thus, would dismiss applicant's corpus, contending that his mistaken understanding subsequent habeas application. Rules App.Proc., of parole eligibility based on misinformation coun- Rule 79.2(d). sel conveyed to him rendered his guilty plea invol- untary. The 232nd District Court, Harris County, [21 Habeas Corpus 197 ~894.1 A.D. Azios, J., entered findings of fact supporting relief. The Court of Criminal Appeals, 64 S.W.3d 197 Habeas Corpus 404, denied relief. Applicant filed subsequent 197IV Operation and Effect of Determination; habeas application, and a suggestion for reconsider- Res Judicata; Succe~sive Proceedings ation asking the Court of Criminal Appeals, on its 197k894 Refusal to Discharge; Subsequent own motion, to reconsider its denial of initial Applications; Prejudice habeas appiication. 197k894.1 k. In general. Most Cited Cases ... Holdings: The Court of Criminal Appeals, Johnson An initial application for a writ of habeas cor- , J., held that: pus seeking an out-of-time appeal does not consti- (I) it would reconsider, on its own initiative, ap- tiite a challenge to the conviction and does not bar plicant's initial habeas application; subsequent writ applications. (2) question of whether parole eligibility forms an affirmative:' part or essential element of the plea [31 Criminal Law 110 ~273.1(3) agreement is not determinativ-e of court's deficient performance inquiry under Strickland; abrogating, II 0 Criminal Law Ex parte Evans, 690 S.W.2d.l74; IIOXV Pleas (3) counsel's misinformation to defendant as to his l!Ok272 Plea of Guilty parole eligibility constituted deficient performance; II Ok273.1 Voluntary Character and l!Ok273.1(3) k. Effect of illegal deten- (4) counsel's error prejudiced defendant, and thus tion or violation of constitutional rights; illegally was ineffective assistance. acquired evidence. Most Cited Cases Counsel's. advice can provide assistance so in~ Relief granted upon reconsideration. effective that it renders a guilty plea involuntary. U.S.C.A. Const.Amend; 6.

Keller, P.J., concurred in judgment, with opin- [4] Criminal Law 110 ~273.1(3) ion. II 0 Ciiminal Law West Headnotes IIOXV Pleas

·--.,._.

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II Ok272 Plea of Guilty 284k48.1 k. In general. Most Cit€d Cases 11 Ok273 .I Voluntary Character Parole eligibility requirements are direct con- 11 Ok273.1 (3) k. Effect of illegal deten- sequences of a guilty plea because they are a defin- tion or violation of constitutional rights; illegally ite and largely automatic result of a guilty plea. acquired evidence. Most Cited Cases A guilty plea is not knowing or voluntary if [8] Pardon and Parole 284 €:=47 made as a result of ineffective assistance of coun- 284 Pardon and Parole sel. U.S.C.A. Const.Amend. 6. 284II Parole [5] Criminal Law 110 ~273.1(3) 284k45 Authority or Duty to Grant~Parole or Parole Consideration 11 0 Criminal Law 284k47 k. Discretionary nature. Most IIOXV Pleas Cited Cases 11 Ok272 Plea of Guilty Parole attainment is not governed by statute 110k273.1 Voluntary Character and is granted at the discretion of the parole board. II Ok273.1 (3) k. Effect of illegal deten- tion or violation of constitutional rights; illegally [9] Constitutional Law 92 €:;:::>2789 acquired evidence. Most Cited Cases 92 Constitutional Law A defendant's decision to plead guilty when 92XXIII Ex Post Facto Prohibitions based upon erroneous advice of counsel is not done 92XXIII(A} Constitutional Prohibitions in voluntarily and knowingly. General [6) Pardon and Parole 284 ~42.1 92k2789 k. Penal laws in general. Most Cited Cases 284 Pardon and Parole 284II Parole Constitutional Law 92 ~2790

284k42 Constitutional and Statutory Provi- 92 Constitutional Law sions 92XXIII Ex Post Facto Prohibitions 284k42.l k. In general. Most Cited Cases 92XXIII(A) Constitutional Prohibitions in Prisons 310 ~248 General 92k2790 k. Punishment in general. Most 310 Prisons Cited Cases 31 OII Prisoners and Inmates A law that changes the punishment for a crime 31 OII(F) Duration of Confinement after the crime has been committed is an unconsti- 31 Ok248 k. Conditional release; com- tutional ex post facto law only if it inflicts a greater munity placement. Most Cited Cases punishment than did the previous law. ··u.S.C.A. The statute in effect when the.holding offense Canst. Art. l, § I 0, cl. I. is committed determines an inmate's eligibility for release on mandatory supervision or parole. [10] Constitutional Law 92 €:=2789

[7] Pardon and Parole 284 ~48.1 92 Constitutional Law 92XXIII Ex Post Facto Prohibitions 284 Pardon and Parole 92XXIII(A) Constitutional Prohibitions in 284II Parole General 284k48 Eligibility for Parole or Parole Con- 92k2789 k. Penal laws in general. Most sideration Cited Cases

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A statute which mitigates the rigor of the law II 0 Criminal Law in force at the time a crime was committed cannot 11 OXXXI Counsel be regarded as ex post facto with reference to that II OXXXI(C) Adequacy of Representation crime. U.S.C.A. Canst. Art. l, § 10, ct. l. llOXXXI(C)l In General 11 Ok 1879 Standard of Effective As-. [11] Criminal Law 110 €=1920 sistance in General II Ok 1882 k. Deficient representa- 110 Criminal Law tion in general. Most Cited Cases II OXXXI Counsel Counsel's performance is deficient, as neces- llOXXXI(C) Adequacy of Representation sary to establish ineffective assistance, if it is llOXXXI(C)2 Particular Cases and Issues shown to have fallen below an objective standard of ll0kl920 k. Plea. Most Cited Cases reasonableness; the constitutionally appropriate The question of whether parole eligibility level of reasonableness is defined by the practices forq~s an affirmative part or essential element of the and expectations of the legal community and pre- plea agreement is not determinative of the court's vailing professional norms therein. U.S.C.A. deficient perfonnance inquiry under the Strickland Const.Amend. 6. test for ineffective assistance of counsel; abrogat- ing, Ex parte Evans, 690 S.W.2d 274. U.S.C.A. [14] Criminal Law 110 €:=>1920 Const.Amend. 6. II 0 Criminal Law [12] Habeas Corpus 197 €=486(3) II OXXXI Counsel II OXXXI(C) Adequacy of Representation 197 Habeas Corpus II OXXXI(C)2 Particular Cases and Issues 197II Grounds for Relief; Illegality of Restraint II Ok 1920 k. Plea. Most Cited Cases l97II(B) Particular Defects and Authority for In situations in which the law is not clear, plea Detention in General counsel should advise a client that pending criminal 197k482 Counsel charges may carry a risk of other serious con- , 197k486 Adequacy and Effectiveness sequences; however, when a serious consequence is of Counsel truly clear, counsel has an equally clear duty to give l97k486(3) k. Arraignment and correct advice, and both failure to provide correct plea. Most Cited Cases information and providing incorrect information vi- To obtain habeas corpus relief on a claim of in- olate that duty. voluntary plea based on counsel's erroneous advice, a habeas corpus applicant must meet both prongs of [15) Criminal Law 110 €:=>1920 the Strickland standard for ineffective assistance of counsel, which are that counsel's performance was II 0 Criminal Law deficient,'and that a probability exists, sufficient to II OXXXI Counsel undermine the court's confidence in the result, that II OXXXI(C) Adequacy of Representation the outcome would have been different but for II OXXXI(C)2 Particular Cases and Issues counsel's deficient performance; in the context of 11 Ok 1920 k. Plea. Most Cited Cases involuntary plea, the "different outcome" is choos- Defense counsel's misinformation to murder ing not to plead and instead choosing to go to trial. defendant as to his parole eligibility, on which de- U.S.C.A. Const.Amend. 6. fendant relied in pleading guilty, constituted defi- cient performance, as element of ineffective assist- [13] Cri11_1inal Law 110 €=1882 ance; parole eligibility requirements were pre- sumptively mandatory, and counsel provided incor- Page 4 361 S.W.3d 684 (Cite as: 361 S.W.3d 684)

rect advice. U.S.C.A. Const.Amend. 6; Vernon's element of the plea agreement." Ex pafte Mous- Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed). sazadeh, 64 S.W.3d 404,413 (Tex.Crim.App.2001) , cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154 (16] Criminal Law 110 €;=:>1920 L.Ed.2d 16 (2002) ( Moussazadeh II, # AP-74,185). Applicant filed a subsequent applica- 11 0 Criminal Law tion for writ of habeas corpus, Moussazadeh III, # 11 OXXXI Counsel AP-76,439, that *687 asserts that trial counsel's 11 OXXXI(C) Adequacy of Representation mistaken advice regarding parole eligibility 11 OXXXI(C)2 Particular Cases and Issues rendered his plea involuntary. We ordereq the sub- ll Ok 1920 k. Plea. Most Cited Cases sequent application filed and set for submission. Defense counsel's misinformation to murder After applicant filed the subsequent application, he defendant as to his parole eligibility, on which de- also filed a suggestion for reconsideration that asks fendant relied in pleading guilty, prejudiced de- this Court, on its own motion, to reconsider its de- fendant, and thus was ineffective assistance; por- cision in Moussazadeh II. tion of defendant's sentence that had be served be- fore he became eligible for parole was double the [ l ][2) This Court, on its own initiative, may re- portion that he was led to believe he had to serve, consider a prior denial of habeas corpus relief. and defendant swore in an affidavit that he would TEX.R.APP. P. 79.2(d). We now reconsider, on our not have pled guilty if he had known the actual time own initiative, the claim raised in applicant's he would have to serve. U.S.C.A. Const.Amend. 6; second application for writ of habeas corpus, Mous- Vernon's Ann.Texas C.C.P. art. 42.18(8)(b )(3) 1 sazadeh II, FN and grant relief. Applicant's sub- (Repealed). sequent application, Moussazadeh Ill, is dismissed.

*686 Randy Schaffer, Houston, for Appellant. FNl. Applicant's first application sought an out-of-time appeal, which we granted. Andrew J. Smith, Asst. D.A., Houston, Lisa C. Ex parte Moussazadeh, No. AP-72,200 McMinn, State's Attorney, Austin, for State. (Tex.Crim.App. delivered October 25, 1995) (not designated for publication). OPINION Such an initial application seeking an out- JOHNSON, J., delivered the opinion of the Court in of-time appeal does not constitute a chal- which PRICE, WOMACK, KEASLER, HERVEY, lenge to the conviction and does not bar COCHRAN, and ALCALA, JJ.,joined. subsequent writ applications. Ex parte Applicant pled guilty to the offense of murder McPherson, 32 S.W.3d 860, 861 without an agreement for punishment. The trial (Tex.Crim.App.2000). court accepted the plea and sentenced applicant to seventy-five years' incarceration. On direct appeal, In Moussazadeh II, we discussed how applic- the court of appeals affirmed the judgment of the ant, under indictment for a capital murder commit- trial court. Moussazadeh v. State, 962 S.W.2d 261 ted on September 12, 1993, pled guilty to the re- (Tex.App.-Houston [14th Dist.] 1998, pet. refd) ( duced offense of murder without a sentencing Moussazadeh I ). Thereafter, applicant filed an ap~ agreement. Applicant, a juvenile at the time of the plication for habeas corpus relief. In a published offense, served as "look-out" while one of his three opinion, we denied relief because applicant "failed co-defendants shot and killed a man during a rob- to prove, by a: preponderance of the evidence, that bery. Moussazadeh II, 64 S.W.3d at 406-07. While his plea was induced by a misunderstanding of the initially rejecting the state's offer of a guiHy plea to applicable parole law which formed an essential the lesser offense of murder, ultimately applicant agreed to plead guilty to murder without a punish-

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ment agreement. The agreement included applic- sentence up to a maximum of 30 years. ant's promise to testify at a c~-defendant's trial, TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3) which he did. ld. at 407-09. During that testimony, (effective Sept. I, 1993). Under the law effective applicant indicated that he understood that, in until September I, 1993, a person convicted of pleading guilty to the murder offense and because murder (but whose conviction did not contain a of parole-eligibility laws, he was facing a signific- deadly weapon finding) was eligible for parole antly ·lesser term of imprisonment than he would when his good time plus flat time equaled one- have faced if convicted of capital murder. Jd. at quarter of the . sentence up to 15 years. 408-09. After the co-defendant's trial ended, ap- TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3). plicant w·as sentenced to seventy-five years' incar- After September I, 1993, a person convicted of ceration without a deadly-weapon finding. Jd. at murder was not eligible for parole until he had 409. served one-half of his sentence or 30 years. TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3) Applicant's claim in his previous writ applica- (effective Sept. I, 1993). tion, which we now reconsider, asserted that "counsel's gross misadvice regarding parole eligib- The affidavits submitted by both applicant and ility rendered applicant's guilty plea involuntary." his trial counsel with his habeas application state He argue~ that "the matter of parole eligibility was that they did not know of these statutory changes. implicitly incorporated in [his] plea agreement." He Indeed, we may fairly infer from the record that also argued that his "guilty plea was involuntary the judge, prosecutor, and [the co-defendant's] even if the matter of parole eligibility was not im- counsel shared the same misunderstanding. plicitly incorporated in the plea agreement." We However, neither trial counsel's nor applicant's quote from our opinion in Moussazadeh II. affidavits state that the prosecutor agreed to make applicant's parole eligibility a term or essential It is quite possible that no one in this proceed- element of the plea agreement. There is no evid- ing knew that the parole law had changed dramat- ence that the prosecutor ever discussed any spe- ically just 11 days before this robbery-murder. cific term or particular percentage of the sentence Applicant's parole eligibility is measured by the that he believed applicant should or would serve law in effect on the date of the offense. Under the in return for the prosecutor's dropping the law effective until September 1, 1993, a person charges from capital murder to straight murder. serving a life sentence for capital murder was not In sum, we are unable to find any evidence -that eligible for parole until serving a flat 35 years. proves the prosecutor or judge caused applicant TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2). to plead guilty based upon an incorrect under- After September I, 1993; that person was not eli- standing of Texas parole law. [Citation omitted.] gible for parole until serving a flat 40 years. TEX.CbDE CRIM. PROC. Art. 42.18, § 8(b)(2) Jd. at409-10. (effective Sept. I, 1993). Under the law effective until September I, 1993, a person whose convic- In Moussazadeh 11, we held that a finding that tion included a deadly ?'eapon finding was not parole eligibility formed an essential part of a plea eligible for parole until he had served a flat one- agreement must be founded upon the express terms fourth of 9is sentence, up to a maximum of 15 of the written plea agreement itself, the formal re- years. TEX.CODE CRIM. PROC. Art. 42.18, § cord at the plea hearing, or the written or testimoni- 8(b)(3). After September I, 1993, a person whose al evidence submitted by both the prosecution and conviction contained a deadly weapon finding the applicant in a habeas proceeding. I d. at 412. We was required to serve a flat one-half *688. of the were "unable to conclude ... that parole eligibility played any part, implicit or explicit, in the plea

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agreement made between the prosecution and ap- knowingly. Ex parte Battle, 817 S.W.2d 81, 83 plicant." Id. at 413. We therefore "den[ied] applic- (Tex.Crim.App.l991 ). See alS(? Ex parte •Harring- ant relief because he ... failed to prove, by a pre- ton, 310 S.W.3d 452, 459 (Tex.Crim.App.2010) ponderance of the evidence, that his plea was in- ("When counsel's representation falls below this [ duced by a misunderstanding of the applicable pa- Strickland] standard, it renders any resulting guilty role law which formed an essential element of the plea involuntary."). plea agreement." /d. Acknowledging our prior hold- ings that a guilty plea is not rendered involuntary Applicant's initial application contended that simply because the defendant received and relied "counsel's gross misadvice regarding parole eligib- upon erroneous advice of counsel concerning parole ility rendered applicant's guilty plea invgluntary," eligibility, and that both parole eligibility and pa- "the matter of parole eligibility was implicitly in- role attainment are highly speculative future facts, corporated in [his] plea agreement," and that his we likewise rejected applicant's contention that his "plea agreement was involuntary even if the matter plea was involuntary regardless of whether the pa- of parole eligibility was not implicitly incorporated role eligibility misinformation was implicitly incor- in the plea agreement." Applicant now asks. this porated into the plea agreement. Jd. at 413-14. Court to reconsider his application in light of Pa~ dilla v. Kentucky, 559 U.S.--, 130 S.Ct. 1473, The circumstances surrounding applicant's con- 176 L.Ed.2d 284 (20 10), and overrule our previous viction are not in dispute. Prior to applicant's plea, decisions in Ex parte Evans, 690 S.W.2d 274 trial counsel advised applicant about his parole eli- (Tex.Crim.App.1985), and Moussazadeh II. gibility, and that advice was incorrect. As we stated in Moussazadeh ll, "The affidavits submitted by The state contends that Padilla has no bearing both applicant and his trial counsel with his habeas upon the Court's disposition. of applicant's claim application state that they did not know of these and that Ex parte Evans and Moussazadeh II are [recently effective] statutory changes [in the parole- "still based upon sound logic regarding parole eli- eligibility law]. Indeed, we may fairly infer from gibility and parole attainment as being highly spec- the record that the judge, prosecutor, and counsel ulative circumstances that does [sic] not render a for [the co-defendant against whom applicant testi- guilty plea involuntary." fied] shared the same misunderstanding." Mous- We conclude that both applicant and the state sazadeh 11, 64 S.W.3d at 410. are partly correct: Padilla is not applicable to the [3][4][5] Counsel's advice can provide assist- facts before us, and our decisions in Ex parte Evans ance so ineffective that it renders a guilty plea in- and Moussazadeh /1 were incorrect. We now dis- voluntary. *689.Hill v. Lockhart, 474 U.S. 52, 56, avow our prior decisions in Ex parte Evans and ~06 S.Ct. 366, 88 L.Ed.2d 20~ (19~~) (quoting Mc- Moussazadeh 11 to the extent that they ( 1) require Mann v. Richardson, 397 U.S. 759, 771, 90 S.q. parole-eligibility misinformation to form an essen- 1441, 25 L.Ed.2d 763 (1970); "voluntariness of the tial part of the plea agreement in order t~ make a plea depends on whether counsel's advice 'was showing of an involuntary plea that resulted from within the range of competence demanded of attor- ineffective assistance of counsel, based upon such neys in criminal cases.' "). A guilty plea is not misinfonnation and (2) fail to appropriately recog- knowing or voluntary if made as a result of inef- nize the distinction between parole eligibility and fective assistance of counsel.t Ex parte Burns, 60.1 parole attainment. S.W.2d 370, 372 (Tex.Crim.App.1980}. A defend- [6] We have previously held that, because of ant's decision to plead guilty when based upon erro- the extremely speculative nature of parQle attain- neous advice of counsel is not done voluntarily and ment, advice from counsel concerning parole does

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not render a plea involuntary. Ex parte Evans, 690 son is eligible for parole in one year on a ten year S.W.2d at 279. However, Evans stated that, because sentence if virtually no one is being paroled in "eligibility for parole is a fluctual [sic] societal de- less than seven or eight years on a ten year sen- cision; highly subject to change," id. at 278,~an.• aPi." tence. It is for this reason that we have termed ·. plicant must prove, by a preponderance of the evLCir parole attainment "too speculative to warrant be- ,ence, that,paro'le eligibility was an affirmative part ing given effect upon" a defendant's guilty plea. · ':· · FN2 or essenttal element of the plea bargain. !d. 64 S.W.3d at 413, quoting Evans, supra. This is an incorrect statement of the law. While the general eligibility rules for parole may change over [7][8][9][10] Contrary to our prior decisions, time, the~~Egibility rules remain the same for a giv: there are considerable, concrete distinctions en conviC'tion. Likewise, an inmate who was eli- between parole attainment and parole eligibility. gible for mandatory release at the time of the of- Parole attainment is indeed highly speculative, due fense remains eligible for mandatory release on that to various factors associated with circumstances conviction, even if th!lt offense subsequently be- surrounding an individual prisoner's parole applica- comes eligible for only discretionary mandatory re- tion, such as the prisoner's behavior in prison, the lease. "The statute in effect when the holding of- composition and attitude of the parole board, the fense is committed determines an inmate's eligibil- identity and attitude of the governor, the population ity for release on mandatory*690 supervision or pa- of the prison system, and regulations governing role.";::Ex:cparte~·Thompson, 173 S.W:3d 458, 459' "good time." Se,e.Ex.pm;te Carillo, 687 S.W.2d 320, (Tex.Crim.App.2005). Evans held that, because pa- 325 (Tex.Crim.App.l985) (Miller, J., concurring). role attainment was speculative, its "legal import- The question of parole eligibility, however, elicits a ance on the subject of voluntariness of a guilty straightforward answer because an applicant's pa- plea" should be "discounted." Ex parte Evans. 690 role eligibility is determined by the law in effect on S.W.2d at 279,. Then, based on its incorrect state- the date of the offense. Ex parte Thompson, 173 ment of law, Evans made an erroneous logical leap S.W.3d at 459. The statutes that govern the punish- and applied the same standard to parole eligibility. ment of a particular offense control the issue of pa- As a result, Evans held that erroneous advice as to role eligibility and are not subject to alteration, ab- either parole eligibility or parole attainment would sent legislative amendment. Even in the event of a not render a plea involuntary. !d. In Moussazadeh legislative amendment making a law more strin- II, we further conflated the concepts of eligibility gent, an applicant is subject only to the law govern- and attainment. ing parole eligibility at the time the offense was committed. See Ex parte Alegria, 464 S.W.2d 868, FN2. See also Ex parte Trahan, 781 874-75 (Tex.Crim.App.l971) (retroactive applica- 'S.W.2d 291, 292-93 (Tex.Crim.App.l989) tion of parole statute that increased defendant's cu- (written plea memorandum reflected that mulation of years required for parole eligibility vi- a~pplicant would become eligible:; for parole olated ex post facto clauses of United States and consideration after having served one- . . . ) .FN 3 P aro Ie-e 1·tgt'b'l· T exas C onstttuttons . 1 tty requtre" fourth of sentence; habeas relief available ments are direct consequences because they are a when that was not the law and terms of definite and largely automatic result of a guilty plea agreement were impossible to fulfill). plea. See Mitschke v. State, 129 S. W.3d 130, 135 (Tex.Crim.App.2004): Parole attainment, on the Although one can determine current parole eli- other hand, is not governed by statute and is gran- gibility with some degree of certainty, it is really ted at the discretion of the parole board. parole ~ttainment that is significant to a plea bar- gaining defendant. It matters very little that a per- FN3. A law that changes the punishment

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for a crime after the crime has been com- the context' of involuntary plea, the "diff~rent out- mitted is an unconstitutional ex post facto come" is choosing not to plead and instead choos- law only if it inflicts a greater punishment ing to go to trial. than did the previous law. Ex parte Tate, 471 S.W.2d 404, 406 [13][14] Counsel's performance is deficient if it (Tex.Crim.App.l971) (op. on reh'g); Ex is shown to have fallen below an objective standard parte Scott, 471 S.W.2d 54, 55-6 of reasonableness. I d. at 51; Strickland v. Washing- (Tex.Crim.App.l971 ). "[A] statute which ton, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 mitigates the rigor of the law. in force,at , L.Ed.2d 674 (1984). The constitutionally appropri- the time a crime was committed cannot be ate level of reasonableness is defined by•the prac- regarded as ex post facto with reference to tices and expectations of the legal community and that crime." Rooney v. North Dakota, 196 prevailing professional norms therein. Strickland, U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494 supra, at 688, 104 S.Ct. 2052. In situations ·in ( 1905). which the law is not clear, counsel should advise a client that pending criminal charges may carry a On a claim of involuntary plea, the standard for risk of other serious consequences. When a serious the analysis of harm under the Strickland protocol consequence is truly clear, however, counsel has an as expressed in these cases may be stated generally equally clear duty to give correct advice. Both fail- as "but for the erroneous advice of counsel, the ap- ure to provide correct information and protiding in- plicant*691 would not have plead guilty." Ex parte correct information violate that duty. Harrington, 310 S.W.3d at 458. See also Ex parte Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999) [ 15] The terms of the relevant parole-eligibility ; Ex parte Stephenson, 722 S.W.2d 426, 428 statute are succinct and clear with respect to the (Tex.Crim.App.l987). consequences of a guilty plea. Based upon the date in which the instant offense was · committed, [ 11] When deciding whether to accept or reject Tex.Code Crim. Proc. art. 42.18- § 8(b )(3) clearly a plea offer, a defendant will likely consider the ac- and succinctly provided that "a person coq.victed of tual minimum amount of time he will spend incar- murder was not eligible for parole until he had cerated. In order to properly consider his options, a served one-half of his sentence or thirty years." defendant needs accurate information about the law Moussazadeh II, supra, at 409. Applicant's counsel concerning parole eligibility. Although we continue could have easily determined the applicable parole- to recognize the distinction between direct and col- eligibility requirements simply by reading the text lateral consequences, we now hold that the question of the statute. Instead, applicant's counsel failed to of whether parole eligibility forms an affirmative inform him of changes in the parole-eligibility stat- part or essential element of the plea agreement is utes that essentially doubled the length of time he not determinative of this Court's deficient-per- must serve before becoming eligible for parole. The formance inquiry under Strickland. fact that the amendments took effect only eleven 4 days before the offense is of no consequence. FN [12] To obtain habeas corpus relief on a claim of .involuntary plea, .an applicant must meet both FN4. Parole eligibility is not speculative. prongs of the Strickland standard: (I) counsel's per- In this case, parole eligibility was statutor- formance "was deficient; and (2) that a probability ily determined and, at the time of the plea, exists, sufficient to undermine our confidence in the there was no speculation about those stat- result, that the outcome would have been different utory terms. Those terms of parole eligibil- but for counsel['s] deficient performance." Ex parte ity were clear, succinct, and expli'cit. It ap- White, 160 S.W.3d 46, 49 (Tex.Crim.App.2004). In pears that all parties involved were un-

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aware that parole eligibility had changed KELLER, P.J., concurring. FN! significantly just a few days before the In overruling Ex parte Evans, the Court commission of the alleged offense. creates a new rule of constitutional law. Under Teague, with some exceptions, federal·courts may The performance of applicant's counsel was de- not announce or apply new rules of constitutional ficient: the consequences of applicant's plea could 2 law on collateral review. FN The states are not have been easily determined by reading the applic- bound by the Teague rule and may afford retroact- able statute. Parole-eligibility requirements are pre- ive effect on collateral review in situations not al- sumpti"vely mandatory, and applicant's trial counsel 3 lowed under Teague. FN Nevertheless, with re- provided •incorrect advice. We *692 conclude that spect to the new Confrontation Clause holding ar- applicant has sufficiently proved that his counsel 4 ticulated in Crawford v. Washington.FN we ap- was constitutionally deficient. plied the rule in Teague to bar retroactive applica- FN5 . tion on habeas corpus. The Court does not con- [ 16] The portion of applicant's sentence that duct a retroactivity analysis in this case, and I do must be served before he becomes eligible for pa- not know its reason for making the n·ew rule retro- role was double the portion that he was led to be- active. Has the Court abandoned Teague altogether lieve he must serve. Based on applicant's affidavit FN5 · in favor of its own retroactivity analysis? Does it of January 13, 1997, we also conclude that ap- intend to adhere to Teague, but with state-created plicant would not have pled guilty if he had known exceptions? Do any exceptions-articulated in the actual time he would have to serve, and thus Teague or state-created-apply in the present case? prejudice is shown. We find that the habeas court's If the Court is going to overrule prior precedent on findings of fact and conclusions of law are suppor- habeas review, as it does here, I believe that it ted by the record and agree that relief should be should clearly explain how this fits into our retro- gnmted. activity jurisprudence. FN5. "tJ:ad Judge Azio~, Mr. Jones, or Mr. FNJ. 690 S.W.2d 274 CogdelL:Jold m~ that a murder conviction (Tex.Crim.App.1985). ;ould require me to serve aggravated time of one-half of my sentence, up to a maxim- FN2. Teague v. Lane, 489 U.S. 288, 109 um of 30 years, even without a deadly S.Ct. I 060, 103 L.Ed.2d 334 ( 1989). weapon finding, I would not have accepted the plea bargain." FN3. Danforth v. Minnesota, 552 U.S. 264, 128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); Accordingly, upon reconsideration, we grant Ex parte Lave, 257 S.W.3d 235, 237 & n. relief. The judgment in this cause is hereby vacated, 15 (Tex.Crim.App.2008). and appli,cant is remanded to the custody of the Harris County Sheriff to answer the charges set out FN4. 541 U.S. 36, 124 S.Ct. 1354, 158 in the indictment. The trial court shall issue an ap- L.Ed.2d 177 (2004). propriate bench warrant within ten days after the mandate of this Court issues. Copies of this opinion FN5. Lave, 257 S.W.3d at 237; Ex parte shall be sent to the trial court and to the Texas De- Keith, 202 S.W.3d 767 partment of Criminal Justice,. correctional institu- (Tex.Crim.App.2006). tions division. There is an easier way to resolve this case. KELLER1 P.J., filed a concurring opinion. MEY- During the plea colloquy, the trial judge was pre- ERS, J., did not participate. pared to make a deadly weapon finding, but the

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parties explained that the issue was to be left open to change. Moreover, with regard to the a(ivice giv- for the judge to determine at punishment, which en in Evans, we said in that case: would be assessed after applicant testified against a co-defendant in accordance with the plea agree- FNlO. Jd. at 413. ment.FN6 This explanation was consistent with the FNll. See id. parties agreeing *693 that applicant would have his chance, after cooperating with the State, to per- No overt sanctioning of this advice by the judge suade the, trial judge to make his time or the prosecutor appears in the record and it does. "non-aggravated," i.e. subject to more generous pa- not appear to have been a part of the plea bargain . role-eligibility rules available to non-3g offenses. • We realize that it is common for the parties to FN? But less than two weeks before the offense had play the guessing game of parole eligibility in been committed, the law had changed to treat plea negotiations. We decline, however, to elev- murder as an "aggravated" offense for parole- ate this common practice to the status of an ele- eligibility purposes, regardless of whether there ment of the plea bargain without some further in- . FN8 In Its was a deadly-weapon fin d mg. . fim d'mgs o f dication from the record evidencing that status. fact on applicant's original habeas application, the We conclude, then, that we are not dealing with a habeas judge found that the prosecutor and the trial . broken or unposs1 'bl e p Iea bargam . situatiOn. . . FN12 judge ratified defense counsel's misinformation about parole eligibility "by attaching significance to FN12. 690 S.W.2d at 277. 9 the deadly weapon finding." FN The habeas judge recommended that applicant be granted a new trial. Unlike in Evans, there was overt sanctioning of the attorney's advice by the judge and the prosec- FN6. See Ex parte Moussazadeh, 64 utor, or at least the habeas court could so rationally S.W.3d 404,408 (Tex.Crim.App.2001). conclude, as it has done. Thus, we simply misana- lyzed the issue under Evans, and it is appropriate FN7. See TEX.CODE CRIM. PROC. art. for us to reconsider the issue now. 42.12 § 3g; TEX. GOV'T CODE § 508.145(d). Further, since our original opinion in this case, we have decided Hooper, where we indicated that FN8. Moussazadeh, 64 S.W.3d at 409. inference stacking was not necessarily irrational and that we should focus, not on whether inferences FN9. The habeas judge also found that ap- are being stacked, but simply on the rationality of pellant would not have pleaded guilty ab- the inferences in addressing the sufficiency of the sent the misinformation. . . . FNI3 evidence to support a conviction. In our original opinion on applicant's habeas FN13. yHooper v. State, 214 S·,W.3d 9, application, we declined to follow the habeas 16-17 (Tex.Crim.App.2007). If it were ne- judge's finding, and her ultimate recommendation, cessary to decide whether Hooper's pro- because it required "too many inferences stacked nouncement regarding inference stacking upon each other" for the deferral of the deadly constituted a new rule under Teague, I weapon issue "to support a finding that it was the would hold that it does not, because, re- parties' clear intention that parole eligibili_l:y _was an gardless of the scope of tfexas's version of essential element of .t he p lea bargam.. " FNIO We Teague's proscription against announcing cited no authority for this "inference-stacking" new constitutional rules of criminal pro- holding,FNll and thus it does not appear to be cedure on habeas, see Danforth, supra, based upon an established rule that we would have such a proscription cannot apply to basic

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. Page II 361 S.W.3d 684 (Cite as: 361 S.W.3d 684)

s,tandards of habeas practice. Otherwise a court could never change its procedures or standards on habeas.

FinallY,, I would not hold, as the Court appears to do,FNPI that the simple failure to *694 convey information about parole eligibility renders a guilty plea involuntary. We need not address whether counsel has an obligation to convey information about the,. parole consequences of a plea. In this case, it is enough to hold that, if counsel does con- vey this type of information, he must do so cor- rectly. Here, the information was incorrect.

FN 14'. "Both failure to provide correct in- formation and providing incorrect informa- tion violate that duty[.]" Court's opinion at 691.

Although I agree that applicant is entitled to a new trial, I do not join the Court's opinion. I concur in the Court's judgment.

Tex.Crim.App.,20 12. ·.·:.~\

Ex Parte Moussazadeh 361 S.W.3d 684

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