FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 11, 2019 _________________________________ Elisabeth A. Shumaker Clerk of Court NICHOLAS SOUDERS,
Petitioner - Appellant,
v. No. 18-1419 (D.C. No. 1:17-CV-02883-RM) SCOTT DAUFFENBACH, Warden; PHIL (D. Colo.) WEISER, Attorney General of the State of Colorado,*
Respondents - Appellees. _________________________________
ORDER DENYING CERTIFICATE OF APPEALABILITY** _________________________________
Before PHILLIPS, McKAY, and BALDOCK, Circuit Judges. _________________________________
Nicholas Souders seeks a certificate of appealability (COA) to appeal the
district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C.
§ 2254.1 After review, we deny Souders a COA and dismiss his appeal.
* Pursuant to Fed. R. App. P. 43(c)(2), Cynthia Coffman is replaced by Phil Weiser as a Respondent in this case. ** This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 1 Because Souders is pro se, we construe his filings liberally, but we stop short of acting as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). BACKGROUND
In 2003, the state of Colorado charged Souders with four counts: (1) sexual
assault (application of physical force or physical violence), in violation of Colo. Rev.
Stat. § 18-3-402(1)(a), (4)(a) (2006); (2) sexual assault (while physically aided or
abetted by another, in violation of § 18-3-402(1)(a), (5)(a)(ii)); (3) conspiracy to
commit sexual assault, in violation of §§ 18-3-402(1)(a), (4) and 18-2-201; and (4)
possession of marijuana with intent to distribute, in violation of § 18-18-06(8)(b)(1).2
People v. Souders, No. 05CA1581, slip op. at 1 (Colo. App. July 26, 2007).
After a trial on the sexual-offense counts, the jury convicted Souders of the
second count listed above, but it acquitted him on the other two counts. For his
conviction, the court sentenced him to a mandatory range of sixteen years to life
imprisonment under the Colorado Sex Offender Lifetime Supervision Act. On direct
review, the Colorado Court of Appeals (CCA) affirmed Souders’s conviction and
sentence. People v. Souders, No. 05CA1581 (Colo. App. July 26, 2007). The
Colorado Supreme Court denied his writ of certiorari. About six years later, Souders
sought post-conviction relief in the Colorado state courts, asserting ineffective
assistance of trial counsel. Among his many claims, he alleged that his trial counsel
had not timely informed him of the state’s plea offer or of the likely sentencing
consequences of rejecting the offer if later convicted.
2 Before trial, the court granted Souders’s motion to sever the marijuana- possession count. State court file at 5, 62–64, 87–88. Souders later pleaded guilty to that charge. Id. at 176–78.
2 The Colorado state district court held an evidentiary hearing on Souders’s
post-conviction claim. The court heard testimony from Souders, his mother, his trial
counsel, the prosecutor, and Souders’s expert in criminal defense and sexual-assault
sentencing.
The prosecuting attorney testified that she had offered to dismiss the sexual-
assault charges against Souders if he pleaded guilty to a class 5 sex-offense felony—
because she had “definite proof challenges with this case. . . .” Dec. 6, 2013 hearing
transcript at 7–8. This would have avoided an indeterminate sentence. She
“remember[ed] [counsel] . . . telling [her] that he [had] extended the offer to his
client, and that his client had rejected the offer.” Id. at 8.
Souders testified (also at the post-conviction hearing) that he first heard about
a plea offer soon before he testified at his sexual-assault trial. He said that he learned
this after mentioning to his trial counsel that he wished the state had offered a plea
deal. Souders further testified that his trial counsel then responded that the state had
in fact made a plea offer, but that it “wasn’t good enough.”3 Nov. 22, 2013 transcript
at 24–25. Souders testified that his trial counsel had given him no details of the plea
offer. Id. at 24. Souders’s testimony did not reveal whether, after hearing this news,
3 Months before Souders’s sexual-assault charges, the same trial counsel had represented Souders on a petty-theft charge, to which Souders pleaded guilty. For the sexual-assault case, Souders’s parents retained Mr. Nelson, dipping into their retirement savings to furnish a flat fee of $30,000.
3 he asked his trial counsel for details about the plea offer, or whether the offer might
still be available. Id.
In addition, Souders testified that his counsel had never explained to him the
difference between determinate and indeterminate sentencing. Id. at 26. He did
acknowledge that his counsel had told him that if convicted, he “would not be able to
see [his five-year-old] son graduate high school.” Id. at 21.
Souders equivocated about what he would have done had his counsel in fact
communicated the offer and told him of the indeterminate-sentencing consequences if
convicted of his present charges. First, he testified that had he known those things he
“definitely would have looked at it differently.” Id. at 26. When asked “[h]ow so?”
he responded, “I probably would have took a plea – plea deal had I known there was
one.”4 Id. at 27. Moments later, Souders testified that he would have “considered” a
plea bargain lowering his sentencing range.5 Id.
4 Notably, this testimony is vague about whether Souders was speaking about the plea deal actually offered. For instance, Souders never testified that he would have been willing to take a “psycho-sex” examination. His trial attorney remembered that the prosecutor had required this as a condition of the plea deal—the test results then affecting the recommended sentencing range. Dec. 6, 2013 hearing transcript at 29, 34. 5 Beginning by recognizing that “hindsight is 20/20,” Souders’s post- conviction counsel asked Souders whether he would have considered a plea offer if he had been told he faced a “minimum sentence to potentially the rest of [his] life in prison if convicted in this case. . . .” Id. Souders responded, “Yes.” His counsel then asked, “It’s something you would have considered?” Souders again answered, “Yes.” Id.
4 Souders’s mother testified that she attended the initial meeting between her
son and his trial counsel, and that her son’s trial counsel did not explain the
consequences of an indeterminate sentence at the meeting. She also said that Souders
had never mentioned to her a proposed plea offer or the prospect of indeterminate
sentencing, which she felt he would have done had he known about them.
Souders’s trial counsel testified that he had told Souders about the state’s offer
during a telephone call from his car immediately after meeting with the prosecutor.
Dec. 6, 2013 hearing transcript at 35. He said he told Souders that the determinate-
sentence offer “was really a good offer.” Id. at 25. Souders maintained his innocence.
Id. at 26. Trial counsel testified that he believed Souders had rejected the plea offer
because Souders felt that something must be going wrong with the prosecutor’s case.
Id. Though trial counsel “c[ouldn’t] remember if [he] discussed [the plea offer] after
that or not,” he stated that he had spoken with Souders “numerous times” about the
strengths and weaknesses of his case and about the potential consequences if he went
to trial and lost, including the possibility of spending the rest of his life in prison. Id.
at 21–23, 35. But trial counsel agreed that his case file contained no notations
memorializing that he had communicated the plea offer to Souders or discussed the
consequences of an indeterminate sentence with him. Id. at 30, 34–35, 39–40. He
described himself as “[p]retty rotten at keeping notes.” Id. at 35.
Finally, Souders called an expert in criminal-defense representation and sex-
offense sentencing. The expert testified that accepting the state’s offer would likely
have resulted in a two-to-six-year prison sentence, followed by two years of parole,
5 during which time Souders would have had to register as a sex offender. Id. at 22. In
contrast, he explained that under an indeterminate sentence, a defendant is given a
much longer minimum sentence and “can be held in the Department of Corrections
for the rest of [his] life until the Department of Corrections and the parole department
decides that [he’s] not a risk, and [he] can be released.” Id. at 17. And “up until
recently [that] has meant that [the defendant is] not going to be paroled.” Id. On top
of that, “the parole is a lifetime parole, meaning [that the defendant] will be on parole
for the rest of [his] natural life.” Id. at 18–19.
Souders’s expert also testified that failing to tell a client about the
consequences of rejecting the state’s plea offer would fall below the standard of care
for adequate representation. Id. at 13–14. “You have to have your client come in and
sit down with you so you can go over both the evidence and the law and the
consequences face to face,” because “[t]his is not a decision you would have your
client make over the telephone.” Id. at 24–25. As for trial counsel’s failure to
memorialize the offer or any of his discussions with Souders, the expert testified that
such a failure “definitely f[ell] below the standard of care.” Id. at 28. He explained
that “documenting [plea offers] on your file is very important” because it allows you
to “remember what [the offer] is” and because “if someone else has to look at your
file, they can figure out what the plea agreement is.” Id. at 16.
At the end of the hearing, the state district court ruled that Souders had failed
to establish ineffective assistance of trial counsel. Specifically, it concluded that
“even if the Court were to assume that defense counsel’s performance was deficient,
6 [Souders] would fail on the second prong,” because he “failed to prove by a
preponderance of the evidence that but for defense counsel’s errors, he would have
accepted the plea.” State court file at 466–68. Then presumably switching to the
deficient-performance prong, the district court stated that “[d]ue to the specificity of
and lack of refutation of the defense counsel’s testimony, and the direct refutation of
the Defendant’s testimony, this Court finds the defense counsel’s testimony more
credible and in line with actual events.”6 Id. at 467. Even so, for reasons not given,
the district court did not rest its holding on the deficient-performance prong. See id.
The CCA affirmed this decision. People v. Souders, No. 14CA0208 (Colo.
App. Aug. 31, 2017). The CCA noted that “even if we assume, without deciding, that
trial counsel’s performance during the plea negotiation process was deficient, we
nonetheless conclude that defendant did not show that counsel’s substandard
performance had prejudiced him.” Id. at 9. The CCA noted that “[t]o establish
prejudice in this context, defendant must show that there was a reasonable probability
that, but for counsel’s errors, he would have accepted the plea offer rather than
proceed to trial. Id. at 9–10. The CCA acknowledged that “sentencing disparities can
serve as corroborating evidence” that a defendant would have accepted a plea deal,
id. at 11, but it ultimately ruled that Souders had failed to show prejudice. As
6 The Colorado Court of Appeals began its analysis by saying that “we agree with the defendant that some of the trial court’s findings were not supported by the record and that we therefore are not required to defer to them.” Slip. Op. at 9. Whether this cryptic reference included the district court’s credibility finding is unimportant though, because, as seen above, both courts relied on Strickland’s prejudice prong, bypassing the deficient-performance prong.
7 support, the CCA referenced Souders’s “indecisive and conditional” responses about
whether he would have accepted the plea agreement and also referenced his
testimony that “he did not raise the possibility of a plea deal with trial counsel
because he ‘was trying to prove [his] innocence.’” Id. at 10.
Souders petitioned for federal habeas relief, reasserting his claim for
ineffective assistance of trial counsel based on counsel’s allegedly failing to
communicate a plea offer, and allegedly not explaining the effect of an indeterminate
sentence under the Colorado Sex Offender Lifetime Supervision Act. In addition,
Souders raised a claim for ineffective assistance of post-conviction counsel, based on
counsel’s allegedly taking five years to complete the post-conviction motion, and for
failing to fully articulate the bases of Souders’s claim for ineffective assistance of
trial counsel. Souders v. Dauffenbach, No. 17-cv-02883-RM (D.Colo., filed Dec. 1,
2017).
The district court first dismissed the claim for ineffective assistance of post-
conviction counsel, under 28 U.S.C. §2254(i). Souders v. Dauffenbach, No. 17-cv-
02883-RM (D.Colo., filed May 11, 2018). Four months later, it dismissed Souders’s
claim for ineffective assistance of trial counsel, reasoning that Souders had not
shown the CCA’s decision “was so lacking in justification that there was an error
well-understood and comprehended in existing law beyond any possibility for
fairminded disagreement.” Souders v. Dauffenbach, No. 1:17-cv-02883-RM
(D.Colo., filed Sept. 24, 2018). In the same order, the district court concluded that it
8 had “no basis on which to issue a certificate of appealability pursuant to 28 U.S.C.
§2253(c).” Id. at 18.
Souders now seeks a COA to review this federal district court’s decision. He
raises these same two issues. First, he contends that the federal district court abused
its discretion in dismissing his claim for ineffective assistance of post-conviction
counsel. Second, he contends that the federal district court abused its discretion by
“considering the CCA’s findings as being reasonable, when the [CCA] could not
provide a single shred of objective corroborating evidence mandated to support such
finding.” Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at 5, 11 (D.Colo., filed
Jan. 8, 2019).7
STANDARD OF REVIEW
We have authority to grant a COA upon a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2). A petitioner must show “that
reasonable jurists could debate whether . . . the petition should have been resolved in
a different manner or that the issues presented were adequate to deserve
encouragement to proceed further.” Howell v. Trammell, 728 F.3d 1202, 1224–25
(10th Cir. 2013) (quoting United States v. Taylor, 454 F.3d 1075, 1078 (10th Cir.
2006)). This means that we consider whether reasonable jurists could debate the
7 We do not read Souders’s application for a COA from our court as making any claim under 28 U.S.C. § 2254(d)(2), or (e). In any event, Souders has failed to provide a sufficient argument supporting any claim that the state-court decision was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding,” or clear and convincing evidence rebutting the presumption of correctness, as required by those subsections.
9 correctness of the federal district court’s order denying habeas relief. In doing so, we
also apply to the CCA’s decision the same double-deference standard required by the
tandem of Strickland and 18 U.S.C. § 2254(d).8 In other words, we follow the
Supreme Court’s direction to “look to the District Court’s application of AEDPA to
petitioner’s constitutional claims and ask whether that resolution was debatable
amongst jurists of reason.” Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).
In deciding whether a petitioner is entitled to a COA, we overview the habeas
claims and generally assess their merits. Id. at 336. We lack jurisdiction to adjudicate
the actual merits. Id. at 336–37. Our job at this stage is not to decide whether a claim
will ultimately succeed, or even whether some jurists would grant the petition. Id. at
337–38. After all, “a claim can be debatable even though every jurist of reason might
agree, after the COA has been granted and the case has received full consideration,
that petitioner will not prevail.” Id. at 338.
Here, the federal district court ruled that the CCA had not violated clearly
established law by denying Souders’s ineffective-assistance claims on the merits.
8 The first level of deference arises “because the Strickland standard is a general standard, [so] a state court has even more latitude to reasonably determine that a defendant has not satisfied the standard.” Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). The second level arises from review under the Antiterrorist and Effective Death Penalty Act (AEDPA), which conditions a writ on there being “no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents; that is, “Section 2254(d) reflects the view that habeas corpus is a ‘guard against extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring)).
10 Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at (D.Colo., filed Sept. 24, 2018).
See 28 U.S.C. §2254(d)(1). In particular, the district court found reasonable the
CCA’s determination that Souders had failed to show prejudice under Strickland—
that he would have taken the plea offer. Reviewing under AEDPA deference, the
district court concluded that the CCA’s decision was neither contrary to clearly
established law (a Supreme Court holding) nor an unreasonable application of clearly
established law to his case. Souders v. Dauffenbach, No. 1:17-cv-02883-RM, at 15–
18 (D.Colo., filed Sept. 24, 2018). As mentioned, the federal district court had
already dismissed Souders’s claim in which Souders had asserted ineffective
assistance of post-conviction counsel.
“Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy §2553(c) is straightforward. The petitioner must
demonstrate that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). The district court properly limited its review “to the record that was before
the state court that adjudicated the claim on the merits,” and required “an
examination of the state-court decision at the time it was made.” Cullen v. Pinholster,
563 U.S. 170, 181–82 (2011).
DISCUSSION
For issues the CCA decided on the merits, Souders must show that the CCA’s
decision is contrary to, or an unreasonable application of clearly established law. 28
U.S.C. § 2254(d)(1). In analyzing this, we begin by reviewing the Supreme Court
11 cases he relies upon to support his claims. These cases concern Strickland claims of
ineffective assistance of counsel in the plea context.
A. Souders’s Cited Supreme Court Cases Involving Strickland Claims in the Plea Context
Under the Strickland framework, a petitioner must show (1) that “counsel
made errors so obvious that counsel was not functioning as ‘counsel’” and (2) that
“the deficient performance prejudiced the defense.” Johnson v. Carpenter, 918 F.3d
895, 900 (10th Cir. 2019). In his petition, Souders cites the following cases in which
the Supreme Court has applied the Strickland framework in the plea context.
In Hill v. Lockhart, 474 U.S. 52 (1985), Mr. Hill pleaded guilty to first-degree-
murder and theft charges, agreeing to terms of 35 and 10 years of imprisonment. Id.
at 53. Before pleading, Mr. Hill obtained advice from counsel that he could become
parole eligible after completing one-third of his prison term. Id. at 54–55. This advice
proved wrong. Instead, as a second offender, Mr. Hill was not parole eligible until he
completed one-half of his prison term. Id. at 55. So just a year after Strickland, the
Court was called upon to decide whether the same ineffective-assistance-of-counsel
rule applied in this plea setting. Id. at 57. After reviewing why prejudice mattered in
this context too, the Court held “that the two-part Strickland v. Washington test
applies to challenges to guilty pleas based on ineffective assistance of counsel.” Id. at
58. To meet the required showing of prejudice, Mr. Hill had to “show that there is a
reasonable probability that, but for counsel’s errors he would not have pleaded guilty
and would have insisted on going to trial.” Id. at 59. The Court ruled that Mr. Hill
12 had failed to meet the Strickland-prejudice showing, noting that he “did not allege in
his habeas petition that, had counsel correctly informed him about his parole
eligibility date, he would have pleaded not guilty and insisted on going to trial.” Id.
at 60.
In Padilla v. Kentucky, 559 U.S. 356 (2010), Mr. Padilla pleaded guilty to
transporting a large amount of marijuana in his trailer. Id. at 359. He was a native of
Honduras but also was a lawful permanent resident of the United States, even having
served in Vietnam. Id. His counsel advised him that a conviction would not result in
deportation, when, in fact, it virtually ensured it. Id. The Court agreed with Mr.
Padilla that “constitutionally competent counsel would have advised him that his
conviction for drug distribution made him subject to automatic deportation.” Id. at
360. In finding Mr. Padilla’s counsel ineffective, the Court relied on prevailing
professional norms, the importance of a client’s right to stay in the United States, and
the immigration statute’s being “succinct, clear, and explicit in defining the removal
consequences for Padilla’s conviction.” Id. at 366–68. The Court rejected the
Kentucky Supreme Court’s view that the ineffectiveness claim could not reach
collateral matters, those not within the sentencing court’s authority.” Id. at 364. After
ruling that “Strickland applies to Padilla’s claim,” the Court remanded for a
determination of whether Mr. Padilla could show prejudice. Id. at 374. In summary,
the Court noted that “we have long recognized that the negotiation of a plea bargain
is a critical phase of litigation for purposes of the Sixth Amendment right to effective
13 assistance of counsel.” Id. at 373 (citing Hall, 474 U.S. 57; McMann v. Richardson,
397 U.S. 759, 770–71 (1970)).
In Missouri v. Frye, 566 U.S. 134 (2012), Mr. Frye was charged with a felony
for driving with a revoked license after three previous convictions for that offense.
Id. at 138. The prosecutor sent Mr. Frye’s counsel two alternate plea offers, the first
agreeing to recommend a 3-year sentence for a guilty plea to the felony, with a 10-
day sentence and no recommendation on probation; and the second agreeing to a
misdemeanor plea if Mr. Frye agreed to a 90-day sentence. Id. The offers were to
expire on December 28, but counsel failed to convey the offers. Id. After a later
driving-while-revoked arrest, Mr. Frye pleaded guilty to the original felony charge,
and the prosecutor recommended the sentence offered in the first plea offer. Id. But
the court sentenced him to three years’ imprisonment. Id.
At his state postconviction hearing, Mr. Frye “testified he would have entered
a guilty plea to the misdemeanor had he known about the offer.” Id. The Missouri
Court of Appeals ruled in Mr. Frye’s favor, concluding that he had “met both of the
requirements for showing a Sixth Amendment violation under Strickland.” Id. After
granting certiorari, the Supreme Court looked to Hill and Padilla “in considering the
role of counsel in advising a client about a plea offer and an ensuing guilty plea.” Id.
It observed that “Hill established that claims of ineffective assistance of counsel in
the plea bargain context are governed by the two-part test set forth in Strickland.” Id.
at 140 (citing Hill, 474 U.S. at 57). The Court noted that Mr. Hill’s ineffectiveness
claim had failed for lack of prejudice—referencing Mr. Hill’s failure even to allege
14 that if properly advised he would have opted for trial instead of pleading guilty. Id. at
141.
After reviewing those two cases, the Court noted their differences with Mr.
Frye’s—Hill and Padilla involved defendants pleading guilty on incorrect advice,
while Frye involved a defendant who had pleaded guilty on accurate advice from
counsel. So Mr. Frye’s argument differed because it involved “the course of legal
representation that preceded it with respect to other potential pleas and plea offers.”
Id. at 141–42. In this different circumstance, the Court commented that “[t]he inquiry
then becomes how to define the duty and responsibilities of defense counsel in the
plea bargain process.” Id. at 144. The Court held “that, as a general rule, defense
counsel has the duty to communicate formal offers from the prosecution to accept a
plea on terms and conditions that may be favorable to the accused.” Id. The Court
declined to address possible exceptions, noting that “the offer was a formal one with
a fixed expiration date.” Id. at 145. By not conveying the offer, Frye’s counsel had
rendered deficient performance. Id.
Turning to whether prejudice results from plea offers having “lapsed or been
rejected because of counsel’s deficient performance,” the Court required a showing
of “a reasonable probability they would have accepted the earlier plea had they been
afforded effective assistance of counsel.” Id. at 147. The Court also required a
defendant to show a reasonable probability that the prosecution would not have
canceled its offer before the defendant entered the guilty plea, and also that the
sentencing court would have accepted it. Id. The Court thought that Mr. Frye might
15 have shown a reasonable probability he would have accepted the first plea offer if his
counsel had told him of it—because he later pleaded to a more serious charge. Id. at
150. But the Court still remanded on the prejudice question, needing to know whether
Missouri law would require the prosecutor and court to have proceeded with the plea
deal even after Mr. Frye was again arrested on the same charge. Id. at 151.
In Lafler v. Cooper, 566 (2012), decided the same day as Frye, Mr. Cooper
had fired a gun repeatedly at a fleeing woman, striking her in the buttock, hip, and
abdomen. Id. at 161. The state charged him with assault with intent to commit
murder, felon in possession of a firearm, possession of a firearm in connection with a
felony, and misdemeanor marijuana possession. Id. The prosecuting attorney twice
offered a plea deal by which the state would recommend a sentence of 51 to 85
months on the other two counts. Id. Mr. Cooper communicated to the court his
admission of guilt and desire to accept the plea offer. Id. But he later rejected the
offers on the advice of counsel—who persuaded him that a jury was unlikely to
convict on the charge of assault with intent to commit murder, because the victim
was shot below the waist. Id. During trial, the prosecuting attorney offered a
significantly-less-favorable plea deal, which Mr. Cooper rejected. Id. At trial, he was
convicted on all counts and was sentenced to imprisonment for 185 to 360 months.
Id.
The federal district court granted Mr. Cooper a conditional writ calling for
specific performance of the original plea agreement. Id. at 162. It concluded “that the
Michigan Court of Appeals had unreasonably applied the constitutional standards for
16 effective assistance of counsel laid out” in Strickland and Hill. Id. The Sixth Circuit
affirmed, and the Supreme Court granted certiorari. Id.
The Court began by reviewing governing principles, including that
“Defendants have a Sixth Amendment right to counsel, a right that extends to the
plea bargaining process,” id. (citing Frye, 132 S. Ct. at 1386–87, and Padilla, 130 S.
Ct. at 1486). The Court noted that “[d]uring plea negotiations defendants are ‘entitled
to the effective assistance of competent counsel.’” Id. (quoting McMann, 397 U.S. at
771). And finally, the Court said that “[i]n Hill, the Court held ‘the two-part
Strickland v. Washington test applies to challenges to guilty pleas based on
ineffective assistance of counsel.’” Id. (citing 474 U.S. at 58). Then, after noting that
the parties had agreed that trial counsel’s performance was deficient, the Court turned
to Strickland prejudice. Id. at 163.
Here, the Lafler Court restated its rule that “[i]n the context of pleas a
defendant must show the outcome of the plea process would have been different with
competent advice.” Id. (citing Frye, 566 U.S. at 1388). Where “the ineffective advice
led not to an offer’s acceptance but its rejection,” the Court determined, “a defendant
must show that but for the ineffective advice of counsel there is a reasonable
probability that the plea offer would have been presented to the court. . . .” Id. The
Court rejected the government’s argument that conviction at a fair trial rules out
Strickland prejudice. Id. at 164. The Court concluded that Mr. Cooper had satisfied
both Strickland prongs. Id. at 174. But for the first time in this series of cases,
another issue remained—what effect might AEDPA have?
17 Under 28 U.S.C. § 2254(d)(1), the federal courts must defer to the state court’s
ruling unless it was contrary to or an unreasonable application of clearly established
federal law, that is, a Supreme Court holding. The Court noted that “[a] decision is
contrary to clearly established law if the state court ‘applies a rule that contradicts the
governing law set forth in [Supreme Court] cases.’” Id. at 173 (citing Williams v.
Taylor, 529 U.S. 362, 405 (2000)). Applying this standard, the Court concluded that
the Michigan Court of Appeal’s decision indeed was contrary to clearly established
federal law, namely, Strickland. Id. at 173. It said that the state court had correctly
identified the issue as ineffectiveness of counsel but had “failed to apply Strickland
to assess it.” Id. at 173. The Court required more than merely inquiring into whether
the plea was rejected knowingly and voluntarily. Id. So now free from § 2254(d)(1)’s
deferential review, the Court ruled for Mr. Cooper based on Strickland.
Finally, in Lee v. United States, 137 S. Ct. 1958 (2017), Mr. Lee was a
permanent resident from South Korea, who had lived in the United States for most of
his life. Id. at 1962. Over the years, he had built a successful restaurant business, but
still chose to sell drugs as a side business. Id. at 1962–63. After being charged
federally, Mr. Lee hired counsel, who began trying to negotiate a plea. Id. at 1963.
Mr. Lee repeatedly asked his counsel about whether he would face deportation if
found guilty. Id. After his counsel assured him he was not at risk of deportation, Mr.
Lee pleaded guilty and was sentenced to a year and a day in prison. Id. Unfortunately
for Mr. Lee, his counsel was mistaken about the immigration consequences—his drug
18 conviction qualified as an aggravated felony under the Immigration and Nationality
Act, which required deportation. Id.
Mr. Lee filed a federal habeas petition under 28 U.S.C. § 2255, arguing
ineffective assistance of trial counsel. Id. The district court denied relief, and the
Sixth Circuit affirmed. Id. at 1964. The Sixth Circuit found that Mr. Lee’s claim
faltered on Strickland’s prejudice prong—that he had not shown a reasonable
probability that he would have declined to plead guilty and insisted on a trial. Id. The
Sixth Circuit relied primarily on the overwhelming evidence of guilt. Id. The
Supreme Court granted certiorari.
The Court acknowledged that a defendant’s prospects at trial are important
when the prospects are what motivates a defendant to plead and forego trial. Id. at
1965. But the Court observed that Mr. Lee’s calculation was not of that ilk. Id. Here,
the counsel’s error was not the sort that would affect the chances of success at trial
(as would, say, a failure to file a suppression motion), but instead was the sort that
“affected Lee’s understanding of the consequences of pleading guilty.” Id. The Court
recognized the reality that a defendant lacking a viable defense faces long odds and
so “will rarely be able to show prejudice from accepting a guilty plea that offers him
a better resolution than would be likely after trial.” Id. at 1966. Even so, because the
Court had “no reason to doubt the paramount importance Lee placed on avoiding
deportation,” and because “substantial and uncontroverted evidence” backed Mr.
Lee’s position that he would not have pleaded guilty absent his counsel’s deficient
performance, the Court ruled in his favor on Strickland prejudice. Id. at 1968–69.
19 B. Souders’s Claim and 28 U.S.C. § 2254(d)
1. 18 U.S.C. §2254(d)(1): “Contrary to” Clearly Established Law
To begin, we see no fault in how the CCA applied Strickland’s legal
framework. As Strickland directs, the CCA analyzed ineffectiveness using the two
prongs—deficient performance and prejudice. Nor does Souders disagree. Instead he
complains that the federal district court erred in its deferential review of the CCA’s
conclusion that he had not shown prejudice under Strickland.
“[A] state-court decision is contrary to clearly established law only ‘if the state
court applies a rule that contradicts the governing law set forth in [the Supreme
Court] cases’ or ‘if the state court confronts a set of facts that are materially
indistinguishable from a decision of th[e] Court and nevertheless arrives at a result
different from [its] precedent.’” Vreeland v. Zupan, 906 F.3d 866, 875 (10th Cir.
2018) (quoting Williams v. Taylor, 529 U.S. 362, 405–06 (2000)).
To show Strickland prejudice, Souders needed to show that absent counsel’s
errors, he would have pleaded guilty and not taken his case to trial.9 Hill, 474 U.S. at
59. Yet he equivocated on this point. No Supreme Court holding permits this
9 The CCA did not decide whether Souders’s counsel had provided constitutionally deficient performance. Ordinarily, we would review this question de novo, freed from any of § 2254(d)(1)’s constraints. But here we need not reach this question. Instead, we can decide Souders’s petition on Strickland’s prejudice prong.
20 equivocation. In fact, as earlier mentioned, the Court in Hill faulted the petitioner for
“not alleg[ing] in his habeas petition that, had counsel correctly informed him about
his parole eligibility date, he would have pleaded not guilty and insisted on going to
trial.” Id. at 60. Nor was this stray language. Twenty-seven years later, in Frye, the
Court reviewed Hill and reemphasized that Mr. Hill “had not alleged that, even if
adequate advice and assistance had been given, he would have elected to plead not
guilty and proceed to trial.” 566 U.S. at 141. Accordingly, we cannot say that
fairminded jurists might debate the district court’s conclusion that Souders has failed
to demonstrate he is entitled to relief under the ‘contrary to’ component of
§2254(d)(1).
2. “Unreasonable Application of” Clearly Established Law
An unreasonable application of Supreme Court holdings “must be ‘objectively
unreasonable,’ not merely wrong, even ‘clear error’ will not suffice.” Lockyer v.
Andrade, 538 U.S. 63, 75–76 (2003). “As a condition for obtaining habeas corpus
from a federal court, a state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility
for fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011).
A petitioner can obtain relief “under § 2254(d)(1)’s unreasonable-application clause
if, and only if, it is so obvious that a clearly established rule applies to a given set of
facts that there could be no ‘fairminded disagreement’ on the question.” White v.
Woodall, 572 U.S. 405, 427 (2014) (citing Harrington, 131 S. Ct. at 787).
21 Here, the Supreme Court holdings on ineffective counsel in the plea setting do
not give a clearly established rule that applies to the facts of Souders’s case to gain
him relief. As mentioned, the Supreme Court cases run counter to Souders’s
position—at the very least they strongly suggest that a petitioner’s equivocal
testimony on whether he would have availed himself of a plea offer is insufficient.
Further, even had Souders unequivocally testified that he would have taken the
plea deal offered, we would not take that subjective testimony on faith. Instead, we
would also consider the objective facts in the record. See Heard v. Addison, 728 F.3d
1170, 1184 (10th Cir. 2013) (quoting Padilla v. Kentucky, 559 U.S. 356, 371 (2010)
(emphasis added)). Here, on balance, those facts do not favor Souders. For example,
represented by the same counsel, Souders had previously obtained a plea offer and
guilty plea in a petty-theft case. Obviously, Souders knew about the plea-agreement
process and the possible benefits of obtaining a plea. Despite that, Souders never
claimed to have asked his counsel about seeking a plea deal, despite knowing he
faced a lengthy sentence without one. Further, Souders continued to maintain his
factual innocence (i.e., that the victim had consented to the sexual intercourse), even
at the post-conviction proceeding. By continuing to assert, even after his conviction,
that the victim had consented to the sexual intercourse, Souders certainly raises doubt
whether he could even have laid a sufficient factual basis to support a guilty plea to a
sexual-offense felony. Under these circumstances, we cannot say that reasonable
jurists could debate whether the federal district court erred in concluding, after giving
the necessary deference to the CCA, that the CCA failed to reasonably apply clearly
22 established law when it concluded that Souders had failed to show Strickland
prejudice.
C. Souders’s Habeas Claim Based on Post-Conviction Counsel’s Alleged Ineffective Assistance
In addition, addressing Souders’s other habeas ground, we conclude that the
district court correctly ruled that § 2254(i) bars Souders’s claim based on allegedly
ineffective assistance of post-conviction counsel. 28 U.S.C. § 2254(i) (“The
ineffectiveness or incompetence of counsel during Federal or State collateral post-
conviction proceedings shall not be a ground for relief in a proceeding arising under
section 2254.”). To overcome this bar, Souders cites Martinez v. Ryan, 566 U.S. 1, 9
(2012), which held that “[i]nadequate assistance of counsel at initial-review collateral
proceedings may establish cause for a prisoner’s procedural default of a claim of
ineffective assistance at trial.” Souders’s Opening Br. at 7–8. But Martinez doesn’t
apply here, because Souders did not default on his ineffective assistance-of-trial-counsel
claim. Rather, his post-conviction counsel squarely raised the claim in the state court, and
the state district court held an evidentiary hearing on the claim. See Martinez, 566 U.S. at
9. As such, § 2254(i) bars Souders’s claim of ineffective assistance of post-conviction
counsel, and reasonable jurists could not debate the point. See Slack, 529 U.S. at 484.
23 CONCLUSION
We deny Souders a COA and dismiss his appeal. We grant Souders’s motion
to proceed in forma pauperis.
Entered for the Court
Gregory A. Phillips Circuit Judge