Emmanuel Houston v. Shawn Phillips ( 2022 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 22a0332n.06
No. 20-6102
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Aug 16, 2022
)
EMMANUEL BIBB HOUSTON, DEBORAH S. HUNT, Clerk
)
Petitioner-Appellant, )
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
SHAWN PHILLIPS, Warden, ) COURT FOR THE EASTERN
Respondent-Appellee. ) DISTRICT OF TENNESSEE
)
Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court in which GIBBONS, J., joined.
COLE, J. (pg. 16), delivered a separate opinion concurring in the judgment.
ALICE M. BATCHELDER, Circuit Judge. Emmanuel Bibb Houston is a Tennessee
prisoner seeking federal habeas relief pursuant to 28 U.S.C. § 2254. Ten years ago, during his
state proceedings, he and the State made several attempts to reach a plea agreement. But
negotiations reached an impasse when the State was adamant that Houston serve 85 percent of a
twelve-year sentence, and Houston was adamant that he serve no more than 30 percent. The case
went to trial, the jury convicted Houston, and the court sentenced him to twenty-three years in
prison.
In this federal habeas petition, Houston claims—for the first time—that he would have
accepted the State’s final plea offer had his trial counsel not made two inaccurate remarks about
the strength of the State’s case. The district court denied Houston’s petition. We affirm.
No. 20-6102, Houston v. Phillips
I.
In 2013, a Tennessee jury found Houston guilty of especially aggravated kidnapping,
especially aggravated burglary, and facilitation of especially aggravated robbery. State of
Tennessee v. Houston, No. M2013-01177-CCA-R3-CD, 2014 WL 2547795, at *1, *5 (Tenn. Crim.
App. June 4, 2014), perm. app. denied (Tenn. June 15, 2015). The conviction was based on
evidence that, in 2012, Houston entered Gregory Marlin’s home and struck Marlin repeatedly with
a baseball bat, knocking him to the ground and inflicting severe injuries. Id. at *1–4. Houston
“pinned” Marlin down by pressing the bat to his neck, while one of Houston’s several accomplices
stole items from Marlin’s home. Id. at *1. Another accomplice held a gun to the back of Marlin’s
neck, and Houston told him to “[g]o on and kill [Marlin].” Id. The accomplice did not shoot
Marlin, so Houston “hogtied” Marlin, and they “threw” him into the bathroom and shut the door.
Id. at *1–2.
After the jury’s verdict, the trial court reduced Houston’s especially-aggravated-burglary
conviction to aggravated burglary and sentenced him to twenty-three years in prison. Id. at *5.
Houston unsuccessfully appealed his conviction and sentence.1 Id. at *10.
Pretrial Negotiations. Prior to trial, Houston’s counsel and the prosecutor “worked
diligently” and “tried many times” to reach a plea agreement. Houston told his trial counsel that
he would plead guilty in exchange for a twelve-year sentence with parole eligibility after serving
30 percent of his sentence. But the prosecutor never offered him that good a deal. The prosecutor’s
most lenient offer was a twelve-year sentence with 85 percent release eligibility. Houston rejected
that offer and opted for trial. All five of Houston’s co-defendants accepted plea deals. One co-
1
Houston’s trial counsel also served as his appellate counsel. Based on his appellate representation in the
case, Houston’s counsel received a censure from the Board of Professional Responsibility.
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defendant, Deonta Twilley, accepted a deal to serve an eight-year sentence with 30 percent release
eligibility. Although Twilley faced the same charges Houston did, he ultimately pleaded guilty to
especially aggravated burglary and robbery.
State Habeas Petition. Represented by new counsel, Houston filed a petition for
postconviction relief in state court.2 The petition raised numerous ineffective-assistance-of-
counsel claims, none of which is relevant to this appeal. The trial court held an evidentiary hearing
and denied Houston relief on all grounds. Houston appealed, and the Tennessee Court of Criminal
Appeals affirmed. Houston v. State, No. M2016-00467-CCA-R3-PC, 2017 WL 2558812 (Tenn.
Crim. App. June 13, 2017), perm. app. denied, (Tenn. Oct. 4, 2017). The Tennessee Supreme
Court denied Houston leave to appeal. Id.Federal Habeas Petition. Houston then filed the present petition for habeas relief in
federal court pursuant to 28 U.S.C. § 2254. He again claimed that his trial counsel was ineffective
in various respects and the evidence was insufficient to support his conviction for especially
aggravated kidnapping. For the first time, though, one of Houston’s ineffective-assistance-of-
counsel claims challenged his trial counsel’s pretrial assessment of the prosecutor’s case.
According to Houston, his trial counsel told him (1) that “he believed the [prosecutor’s] case to be
one of aggravated assault,” and (2) that the especially-aggravated-kidnapping charge against
Houston was “foundless.” Testimony from the state court’s postconviction relief hearing serves
as the sole evidence of these two remarks. Houston’s trial counsel testified at the hearing:
Q: Did you tell [Houston] that at most this was an aggravated assault case?
A: I thought that was our case. I don’t remember saying that, “At most, this is an
aggravated assault case.”
2
Houston originally filed a pro se petition for postconviction relief.
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Q: Did you tell [Houston] that all your colleagues agreed with your assessment in
that respect?
A: Yes, I probably did, because I think that was the general consensus that the
aggravated – especially aggravated kidnapping charge was found-less.
Q: Now, I heard you say that you did give Mr. Houston your advice, that you
thought, “Hey, at worse this really just looks like an aggravated assault perpetrated
against [the victim]?”
A: Yes.
Houston testified at the hearing:
Q: Okay. Did [trial counsel] tell you throughout all phases of this, “Don’t worry
about things, this is just an aggravated assault”?
A: Every time we come to the courthouse, he said, “Man, these guys think this is a
joke, that you – you actually did a couple of guys a favor by beating that character
up. And we all just think that this is a big aggravated assault. Don’t worry about
it.”
At the same hearing, however, Houston’s trial counsel testified that he did not guarantee any trial
result or promise that Houston would be convicted of only aggravated assault. Trial counsel also
testified that he explained to Houston the sentencing exposure Houston faced if he went to trial.
The district court denied Houston’s § 2254 petition and declined to issue a certificate of
appealability, explaining that Houston’s new ineffective-assistance claim lacked merit. The court
noted that Houston’s procedural default was “arguably” excused but nonetheless held that
Houston’s trial counsel was “not ineffective for sharing his opinion about the case with [Houston],
and nothing in the record suggests that this statement prejudiced” Houston. Houston timely
appealed. We granted Houston a certificate of appealability on this claim.
II.
Houston petitions for habeas relief pursuant to 28 U.S.C. § 2254 of the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA). He claims that he was denied his constitutionally
guaranteed right to counsel under the Sixth Amendment because two remarks made by his trial
counsel in 2012 misinformed him about whether to accept a plea deal, and that he would have
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taken a plea deal had he been given correct advice. Houston also argues that, even though his
claim is procedurally defaulted because he never raised it in state court, we should excuse the
default because his state postconviction counsel was also ineffective.
For the reasons below, we disagree.
A. Procedural Default
In general, a federal court reviewing the lawfulness of a state prisoner’s detention may
grant habeas relief only if the prisoner is being held “in custody in violation of the Constitution or
laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Trevino v. Thaler, 569 U.S. 413,
421 (2013). Our review is also circumscribed by our deference to state-court judgments that rest
upon independent and adequate state-procedural grounds, Coleman v. Thompson, 501 U.S. 722,
729–31 (1991), and by the congressional mandate that, generally, petitioners exhaust available
state remedies before pursing federal habeas relief, 28 U.S.C. § 2254(b)(1)(A); see Johnson v.
Bauman, 27 F.4th 384, 388 (6th Cir. 2022). Thus, we normally decline to exercise habeas review
when a petitioner fails to raise a claim in state court and cannot do so now due to a state procedural
rule. Coleman, 501 U.S. at 731–32. Such a claim is considered “procedurally defaulted” and
principles of comity, finality, and federalism counsel against disturbing a state-court conviction
without the state court’s having had the opportunity to first address the claimed error. Id. at 730–
32, 750; see Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).
In limited circumstances, however, a petitioner may overcome this hurdle if he can
establish “cause” to excuse the default—such as when there is an attorney error—and that he
suffered “prejudice” from the asserted error. Davila, 137 S. Ct. at 2064–65 (quoting Wainwright
v. Sykes, 433 U.S. 72, 84 (1977)). In this scenario, to qualify as “cause,” the attorney error must
amount to constitutionally ineffective assistance of counsel. Id. at 2065. And, until some years
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ago, an attorney error in state postconviction proceedings did not qualify as “cause” because a
petitioner has no constitutional right to counsel in those proceedings. Coleman, 501 U.S. at 752–
53. Nevertheless, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created an equitable
“qualification” of this rule. Id. at 15–17. It applies where state procedural law requires, or
effectively requires, petitioners to raise claims of ineffective assistance of trial counsel in a state
postconviction proceeding, rather than on direct appeal. Id. at 17; see Trevino, 569 U.S. at 429
(expanding Martinez’s scope). In those states, ineffective assistance of postconviction counsel
may establish “cause” to excuse the procedural default of a petitioner’s underlying ineffective-
assistance claim against his trial counsel. Martinez, 566 U.S. at 14. Importantly, the petitioner
must also demonstrate that his defaulted ineffective-assistance claim is “substantial,” “which is to
say that . . . [it] has some merit.” Id. The Martinez framework applies to Tennessee’s procedures.
Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014). We review de novo whether a claim
is barred by procedural default. Hodges v. Colson, 727 F.3d 517, 529 (6th Cir. 2013).
Houston argues that his defaulted claim falls under the purview of Martinez. He contends
that “cause” and “prejudice” exist because his state postconviction counsel failed to raise the “bad
advice” claim that Houston now pursues. According to Houston, his postconviction counsel knew
to raise such a claim in the state postconviction petition because, during the postconviction hearing,
he questioned Houston’s trial counsel about the pretrial remarks he made to Houston. Houston
also faults his postconviction counsel for not further developing the claim during the hearing. The
State does not challenge Houston’s cause-and-prejudice argument, but instead focuses on
Houston’s underlying ineffective-assistance-of-trial-counsel claim, arguing that the claim is not
“substantial.”
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We have good reasons to doubt that Houston’s procedural default is excused by way of his
postconviction counsel’s ineffectiveness under Martinez.3 But we need not fully address those
reasons because the State is correct: the record and our precedent squarely foreclose Houston’s
underlying claim against his trial counsel.
B. Ineffective Assistance of Trial Counsel
Houston’s principal ineffective-assistance claim against his trial counsel fails under
Strickland v. Washington, 466 U.S. 668 (1984). To succeed on this claim, Houston must establish
(1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced
his defense. Id. at 687. Counsel’s performance is deficient if it is objectively unreasonable under
prevailing professional norms. Id. at 687–88; see Tackett v. Trierweiler, 956 F.3d 358, 373 (6th
Cir. 2020). In other words, the attorney error must be “so serious that counsel was not functioning
as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687.
“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.” Id. at 689. The test for prejudice is whether “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694.
3
For example, it appears that Houston’s postconviction counsel made “a deliberate, tactical decision not to
pursue” this particular ineffective-assistance-of-trial-counsel claim in postconviction proceedings, which
“is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to
adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases.” Smith v.
Murray, 477 U.S. 527, 534 (1986). Indeed, Houston emphasizes in his brief that his postconviction
counsel’s decision was “not accidental.” Moreover, Houston does not argue that this defaulted claim was
“clearly stronger” than the twelve other ineffective-assistance claims that his postconviction counsel did
raise in state postconviction proceedings. See Sullivan v. United States, 587 F. App’x 935, 942 (6th Cir.
2014) (“[O]nly when ignored issues are clearly stronger than those presented, will the presumption of
effective assistance of [appellate] counsel be overcome.” (quoting Joshua v. DeWitt, 341 F.3d 430, 441 (6th
Cir. 2003))).
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When considering a denial of habeas relief under 28 U.S.C. § 2254, we review the district
court’s legal conclusions de novo and its factual findings for clear error. England v. Hart, 970
F.3d 698, 706 (6th Cir. 2020). And when, as here, no state court has “adjudicated [the petitioner’s
claim] on the merits,” we do not apply § 2254(d)’s deferential standard. Bies v. Sheldon, 775 F.3d
386, 395 (6th Cir. 2014).
1. Performance
Houston’s trial counsel advised Houston that the prosecutor’s case was simply one of
aggravated assault and that the especially-aggravated-kidnapping charge was “foundless.”
Houston says that because this advice was ultimately incorrect, it amounts to constitutionally
deficient performance. We cannot agree.
An attorney’s professional prediction that does not become reality is not necessarily
deficient performance. Lafler v. Cooper, 566 U.S. 156, 174 (2012) (“[A]n erroneous strategic
prediction about the outcome of a trial is not necessarily deficient performance.”). Here, Houston’s
trial counsel never guaranteed Houston a particular result at trial, and he fully advised Houston of
the charges and his potential sentencing exposure if he were to reject the plea offer. Therefore,
counsel’s pretrial remarks were not objectively unreasonable when taken in context. See Logan v.
United States, 910 F.3d 864, 872 (6th Cir. 2018) (holding that a trial counsel’s “erroneous . . .
prediction” of the case at the plea bargaining stage was “not necessarily deficient performance”
because the petitioner was nevertheless “given all he needed to make an informed decision on the
plea offer”); Ryal v. Lafler, 508 F. App’x 516, 522 (6th Cir. 2012) (finding no ineffective
assistance where the petitioner was made “aware of the charges and the plea consequences” even
though his trial counsel’s pre-plea deal “prediction [about the likely outcome of the case] turned
out to be incorrect”).
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Houston points to the jury’s “quick[]” two-and-a-half-hour deliberation as evidence of
counsel’s deficiency. But the length of jury deliberations does not determine whether an attorney’s
performance falls outside the wide range of reasonable professional assistance. And we must take
great care to “eliminate the distorting effects of hindsight” when assessing attorney performance.
Strickland, 466 U.S. at 689.
Houston also attempts to liken his case to Byrd v. Skipper, 940 F.3d 248 (6th Cir. 2019), in
which we found that counsel’s ineffectiveness deprived the defendant of the opportunity to secure
a plea deal. Id. at 251. During oral arguments, Houston’s counsel described the present case as
“Byrd on steroids.” The attorney performance in Byrd, however, is nothing like what occurred in
this case. In Byrd, the defense counsel made at least three professional errors. First, counsel
refused to engage in plea negotiations and was “determined to go [to] trial” despite the desire of
the prosecutor and Byrd to reach a plea agreement. Id. at 251–52. Second, counsel harbored a
“shocking lack of comprehension regarding the pertinent law,” “convinced Byrd that a guilty plea
was unnecessary and against his interest,” and “assured Byrd that he would ‘hit a home run’ for
him by securing an acquittal, and that Byrd would be ‘going home.’” Id. at 253, 257. Finally, and
perhaps most egregiously, counsel did not explain to Byrd the legal concepts underlying Byrd’s
case or Byrd’s potential sentencing exposure under the guidelines. Id. at 253, 258.
Rather than “Byrd on steroids,” this case is Byrd through the looking glass4—nearly the
opposite happened here. Houston’s trial counsel was very amenable to negotiating a plea deal
with the prosecutor, and the two of them “worked diligently” and “tried many times” to reach an
agreement. Counsel did not pressure Houston to reject the prosecutor’s best offer, nor did he
4
Lewis Carroll, Through the Looking-Glass 121 (Penguin Books 1998) (1872); see Roberts v. Universal
Underwriters Ins. Co., 334 F.3d 505, 513 (6th Cir. 2003) (Batchelder, J., concurring); United States v.
Taylor, 142 S. Ct. 2015, 2026 (2022) (Thomas, J., dissenting).
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guarantee that Houston would be acquitted, or that Houston would receive a short sentence if
convicted. Instead, unlike the counsel in Byrd, Houston’s counsel properly explained to Houston
the relevant legal concepts and Houston’s potential sentencing exposure if he went to trial. His
counsel’s pretrial advice was merely his (perhaps overly optimistic) professional assessment of the
prosecutor’s case. It was not erroneous advice on a matter of law. Cf. Maples v. Stegall, 340 F.3d
433, 439 (6th Cir. 2003) (finding ineffective assistance where counsel gave “patently erroneous”
legal advice regarding the appellate consequences of defendant’s guilty plea). This case does not
present the type of “apparent,” “abundant,” and “blatant” incompetence that counsel displayed in
Byrd, 940 F.3d at 257.
Moreover, the art of plea bargaining involves “complex negotiations suffused with
uncertainty.” Premo v. Moore, 562 U.S. 115, 124 (2011). Thus, an attorney’s professional
assessment based on the facts as he knew them at the relevant time is entitled to deference. Id. at
125 (explaining that “strict adherence” to Strickland is “essential . . . at the plea bargain stage” due
to “the potential for the distortions and imbalance that can inhere in a hindsight perspective” and
the “special difficulties in evaluating” an attorney’s performance that is based on a limited record
and his “insights borne of past dealings with the same prosecutor or court”); see also Strickland,
466 U.S. at 689 (“[I]t is all too easy for a court, examining counsel’s defense after it has proved
unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”).
Because counsel’s mistaken prediction here does not amount to a “manifest deficiency in light of
information then available to [him],” Houston cannot satisfy Strickland’s demanding standard to
prove that he was deprived of effective assistance of counsel. Premo, 562 U.S. at 125.
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2. Prejudice
Nor can Houston establish prejudice. To establish prejudice, Houston must show that there
is a “reasonable probability” that, but for his counsel’s deficiency, he would have accepted the
State’s more-favorable plea offer. Strickland, 466 U.S. at 694. “A reasonable probability is a
probability sufficient to undermine confidence in the outcome.” Id. Houston must also
demonstrate that the “prosecution would not have withdrawn [the offer] in light of intervening
circumstances” and that the trial court “would have accepted its terms.” Lafler, 566 U.S. at 164.
The evidence presented here does not establish a reasonable probability that, but for
counsel’s advice, Houston would have accepted the State’s plea offer to serve a twelve-year
sentence with an 85 percent release eligibility. Houston argues that his willingness to accept such
an offer is “not an issue” because he testified: “I told [trial counsel], ‘If I could get a 12 [years] at
30 [percent], I’d get out of y’all’s way.’” He argues that “[s]urely” he would have accepted the
same sentence with 85 percent release eligibility had his counsel not been ineffective. But the
state postconviction hearing tells a different story.
At the hearing, Houston did not testify that his counsel’s statements played any role in his
decision to reject the plea offer. And even though Houston gave no account of his specific reasons
for rejecting the plea offer, it seems that his rejection was rooted in a personal dissatisfaction with
the release-eligibility percentage, not in a tainted understanding of his case caused by counsel’s
advice. Houston was adamant that he was willing to serve only 30 percent of whatever sentence
he received. At one point during the hearing, he explained that he did not want a sentence with
100 percent release eligibility because he did not “believe [he] did 100 percent worth of a crime.”
Trial counsel’s testimony confirms Houston’s adamance. Counsel testified, “Mr. Houston was not
interested at 12 at 85 percent . . . . You know, we’re talking about a gap there, a percentage, but
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we couldn’t get to an agreement on it.” Counsel later stated, “I’ve tried many times,” after being
asked, “[Y]ou’re kind of in the middle. You can’t make the defendant go up, if he doesn’t want
to; and you can’t make the State come down, if they don’t want to?” Similarly, counsel agreed
that “it was just a situation where the defendant refused to accept the State’s bottom-line offer, and
the State refused to accept the defendant’s top-line offer.” Finally, counsel testified:
I know that we enter[ed] into all kinds of negotiations, including amending charges,
to get to where we want[ed] to be. To get to where we [could] agree on. But there
wasn’t any number that [Houston] was willing to take above 12, that he ever gave
me permission to seek. And there wasn’t any number lower than 12 at the 85
percent, that we ever got to with the State. And [Houston] would not take that.
Thus, according to the hearing testimony, despite counsel’s numerous attempts, Houston was
insistent that he would not accept a twelve-year sentence with 85 percent release eligibility.
Houston’s later change of heart and revisionist history is precisely why defendants who
seek to undo their plea decisions through claims of ineffective assistance face such a high
evidentiary burden. In Lee v. United States, 137 S. Ct. 1958, 1967 (2017), the Supreme Court
explained: “Courts should not upset a plea solely because of post hoc assertions from a defendant
about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look
to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Any and all
contemporaneous evidence in this case points to a conclusion that Houston would have rejected
the prosecutor’s plea offer regardless of his attorney’s comments. For that reason alone, Houston’s
prejudice argument fails. See, e.g., Smith v. Cook, 956 F.3d 377, 394–95 (6th Cir. 2020) (finding
no prejudice because, even if trial counsel was deficient, there was no contemporaneous evidence
in the record to demonstrate that the defendant “would have taken the deal at the time”); United
States v. Pola, 703 F. App’x 414, 421 (6th Cir. 2017) (finding no prejudice because “the record
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simply does not establish, by contemporaneous evidence, that [the defendant] would” have pled
differently).
Houston makes three additional arguments, none of which is persuasive. First, Houston
asserts in his brief that he believed when he rejected the offer that, if convicted, he was facing “no
more than five years” in prison—which is the average length of aggravated assault sentences in
Tennessee, according to Houston. But that theory twists the facts. Houston’s counsel never
advised Houston that he was charged with assault (because he wasn’t), nor did he inform Houston
that he was facing only a five-year sentence. Moreover, Houston bases this argument on
sentencing statistics in a report that neither counsel nor Houston discussed. At the time Houston
rejected the plea offer, he was aware of his actual sentencing exposure.
Second, Houston argues that it is “common-sense” that he would have accepted such a
“generous” plea offer had his counsel not made remarks about the prosecutor’s case. But under
that logic, prejudice could be found any time a defendant is offered a favorable plea deal—which
could be every case, because the rudimentary concept of plea bargaining is to exchange leniency
for the time, expense, and uncertainty of a full trial. And a case in which there is an unusually
generous plea offer begs the question of whether the trial court would have accepted the
arrangement. Houston’s “common-sense” argument also belies reality. Defendants routinely
reject favorable plea offers in the face of near-certain convictions. See United States v. Knight,
981 F.3d 1095, 1112 (D.C. Cir. 2020) (Katsas, J., dissenting) (“[D]efendants assess trial risks
differently, and even a defendant ‘almost certain’ to be convicted could rationally reject a plea.”
(quoting Lee, 137 S. Ct. at 1968)). And there are a host of reasons unrelated to attorney conduct
that might cause a defendant to reject such a plea offer. One possible reason in this case is
Houston’s knowledge that at least one of his co-defendants, who faced the same charges, received
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a better plea deal than he did. Regardless, the point remains that all we have to substantiate
Houston’s newly expressed plea preferences are his self-serving, post hoc statements and our
speculation. Those are not enough.
Third, Houston again leans heavily on Byrd. In that case, we found prejudice because the
defendant’s “interest in proceeding to trial was rooted in misinformation gleaned from his
counsel’s faulty advice, making it an unreliable metric of reasonably probable outcomes.” Byrd,
940 F.3d at 258. We explained that because his counsel’s advice was “erroneous and omitted
critical details,” the defendant “lacked the requisite information to weigh the options in front of
him” and effectively had “no choice at all.” Id. at 258–59. By contrast, counsel’s performance
here was not so “manifest[ly] deficien[t]” that it tainted Houston’s understanding of his case and
rendered him incapable of making a choice. See Premo, 562 U.S. at 125. As we have explained,
this is not a situation in which counsel failed to advise his client of the worst-case-scenario
consequences of declining a plea offer or in which counsel insisted that his client roll the dice at
trial. Counsel fully advised Houston of the charges and evidence against him, the prosecutor’s
burden of proof, and his potential sentencing exposure. Given these facts, and the lack of
contemporaneous evidence to the contrary, Houston cannot show that he had a considerable
misunderstanding—or that, even if he did, it was caused by counsel’s remarks—that left him
unable to make an intelligent decision about whether to accept the prosecutor’s plea offer. In the
end, Houston made his choice. And Strickland does not give him a do-over.
3. Evidentiary Hearing
Houston also asks that we remand this case for an evidentiary hearing. He argues that the
district court erroneously declined to hold an evidentiary hearing and that a hearing would help
develop the record to his benefit. But that avenue was recently foreclosed by the Supreme Court
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in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), which limited federal habeas review of defaulted
claims to the state-court record, subject to the narrow exceptions listed under § 2254(e)(2) of
AEDPA. Id. at 1734.
In short, federal habeas courts are prohibited, by statute, from granting evidentiary hearings
when petitioners have “failed to develop the factual basis of [their] claim[s] in State court
proceedings.” Id. at 1728 (quoting 28 U.S.C. § 2254(e)(2)). And the equitable rule announced in
Martinez does not give federal courts authority to amend AEDPA’s statutory directives and allow
petitioners to expand state-court records to support their ineffective-assistance-of-state-
postconviction-counsel claims. Id. at 1728, 1736–38; see also Shoop v. Twyford, 142 S. Ct. 2037,
2046 (2022).
Because Houston failed to develop the factual basis of his claim in state court, and because
none of § 2254(e)(2)’s exceptions apply, Houston is not entitled to an evidentiary hearing.
III.
For these reasons, we AFFIRM the judgment of the district court.
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COLE, Circuit Judge, concurring in the judgment.
“Our constitution insists . . . that no matter how heinous the crime, any conviction must be
secured respecting all constitutional protections.” Shinn v. Ramirez, 142 S. Ct. 1718, 1741 (2022)
(Sotomayor, J., dissenting). The record presented on appeal, however, does not establish that
Houston’s trial counsel’s performance was deficient, nor that it prejudiced Houston’s defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). Houston is not at fault for his postconviction
counsel’s failure to raise and develop this claim in state court. But, because Houston’s case does
not implicate one of “§ 2254(e)(2)’s narrow exceptions to AEDPA’s general bar on evidentiary
hearings,” the Supreme Court’s recent decision in Shinn v. Ramirez prevents this court from
remanding for further evidentiary development. See Shinn, 142 S. Ct. at 1740 (alterations and
quotation omitted). Accordingly, I concur in the judgment denying Houston’s petition for habeas
relief.
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