NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the
Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal
errors, in order that corrections may be made before the
preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 10–209
_________________
BLAINE LAFLER, PETITIONER
v. ANTHONY
COOPER
on writ of certiorari to the united states
court of appeals for the sixth circuit
[March 21, 2012]
Justice Kennedy delivered the opinion of the
Court.
In this case, as in
Missouri v.
Frye, ante, p. ___, also decided today, a criminal
defendant seeks a remedy when inadequate assistance of counsel
caused nonacceptance of a plea offer and further proceedings led to
a less favorable outcome. In
Frye, defense counsel did not
inform the defendant of the plea offer; and after the offer lapsed
the defendant still pleaded guilty, but on more severe terms. Here,
the favorable plea offer was reported to the client but, on advice
of counsel, was rejected. In
Frye there was a later guilty
plea. Here, after the plea offer had been rejected, there was a
full and fair trial before a jury. After a guilty verdict, the
defendant received a sentence harsher than that offered in the
rejected plea bargain. The instant case comes to the Court with the
concession that counsel’s advice with respect to the plea
offer fell below the standard of adequate assistance of counsel
guaranteed by the Sixth Amendment, applicable to the States through
the Fourteenth Amendment.
I
On the evening of March 25, 2003, respondent
pointed a gun toward Kali Mundy’s head and fired. From the
record, it is unclear why respondent did this, and at trial it was
suggested that he might have acted either in self-defense or in
defense of another person. In any event the shot missed and Mundy
fled. Respondent followed in pur- suit, firing repeatedly. Mundy
was shot in her buttock, hip, and abdomen but survived the
assault.
Respondent was charged under Michigan law with
as- sault with intent to murder, possession of a firearm by a
felon, possession of a firearm in the commission of a fel- ony,
misdemeanor possession of marijuana, and for being a habitual
offender. On two occasions, the prosecution offered to dismiss two
of the charges and to recommend a sentence of 51 to 85 months for
the other two, in exchange for a guilty plea. In a communication
with the court respondent admitted guilt and expressed a
willingness to accept the offer. Respondent, however, later
rejected the offer on both occasions, allegedly after his attorney
convinced him that the prosecution would be unable to establish his
intent to murder Mundy because she had been shot below the waist.
On the first day of trial the prosecution offered a significantly
less favorable plea deal, which respondent again rejected. After
trial, respondent was convicted on all counts and received a
mandatory minimum sentence of 185 to 360 months’
imprisonment.
In a so-called
Ginther hearing before the
state trial court, see
People v.
Ginther, 390 Mich.
436,
212 N.W.2d 922 (1973), respondent argued his attorney’s
advice to reject the plea constituted ineffective assistance. The
trial judge rejected the claim, and the Michigan Court of Appeals
affirmed.
People v.
Cooper, No. 250583, 2005 WL
599740 (Mar. 15, 2005)
(per curiam), App. to Pet. for
Cert. 44a
. The Michigan Court of Appeals rejected the claim
of ineffective assistance of counsel on the ground that re-
spondent knowingly and intelligently rejected two plea offers and
chose to go to trial. The Michigan Supreme Court denied
respondent’s application for leave to file an appeal.
People v.
Cooper, 474 Mich. 905, 705 N.W.2d 118
(2005) (table).
Respondent then filed a petition for federal
habeas relief under 28 U. S. C. §2254, renewing his
ineffective-assistance-of-counsel claim. After finding, as required
by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), that the Michigan Court of Appeals had un- reasonably
applied the constitutional standards for effective assistance of
counsel laid out in
Strickland v.
Washington,
466 U.S.
668 (1984), and
Hill v.
Lockhart,
474 U.S.
52 (1985), the District Court granted a conditional writ.
Cooper v.
Lafler, No. 06–11068, 2009 WL 817712,
*10 (ED Mich., Mar. 26, 2009), App. to Pet. for Cert.
41a–42a. To remedy the violation, the District Court ordered
“specific performance of [respondent’s] original plea
agreement, for a minimum sentence in the range of fifty-one to
eighty-five months.”
Id., at *9, App. to Pet. for
Cert. 41a.
The United States Court of Appeals for the Sixth
Circuit affirmed, 376 Fed. Appx. 563 (2010), finding “[e]ven
full deference under AEDPA cannot salvage the state court’s
decision,”
id., at 569. Applying
Strickland,
the Court of Appeals found that respondent’s attorney had
provided deficient performance by informing respondent of “an
incorrect legal rule,” 376 Fed. Appx., at 570–571, and
that respondent suffered prejudice because he “lost out on an
opportunity to plead guilty and receive the lower sentence that was
offered to him.”
Id., at 573. This Court granted
certiorari. 562 U. S. ___ (2011).
II
A
Defendants have a Sixth Amendment right to
counsel, a right that extends to the plea-bargaining process.
Frye,
ante, at 8; see also
Padilla v
.
Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 16);
Hill,
supra, at 57. During plea negotiations
defendants are “entitled to the effective assistance of
competent counsel.”
McMann v.
Richardson,
397 U.S.
759, 771 (1970). In
Hill, the Court held “the
two-part
Strickland v.
Washington test applies to
challenges to guilty pleas based on ineffective assistance of
counsel.” 474 U. S., at 58. The performance prong of
Strickland requires a defendant to show
“ ‘that counsel’s representation fell below
an objective standard of reasonableness.’ ” 474
U. S., at 57 (quoting
Strickland, 466 U. S., at
688). In this case all parties agree the performance of
respondent’s counsel was deficient when he advised respondent
to reject the plea offer on the grounds he could not be convicted
at trial. In light of this concession, it is unnecessary for this
Court to explore the issue.
The question for this Court is how to apply
Strickland’s prejudice test where ineffective
assistance results in a re- jection of the plea offer and the
defendant is convicted at the ensuing trial.
B
To establish
Strickland prejudice a
defendant must “show that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.”
Id., at
694. In the context of pleas a defendant must show the outcome of
the plea process would have been different with competent advice.
See
Frye,
ante, at 12 (noting that
Strickland’s inquiry, as applied to advice with
respect to plea bargains, turns on “whether ‘the result
of the proceeding would have been different’ ”
(quoting
Strickland,
supra, at 694)); see also
Hill, 474 U. S., at 59 (“The . . .
‘prejudice,’ requirement . . . focuses on
whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process”). In
Hill,
when evaluating the petitioner’s claim that ineffective
assistance led to the improvident acceptance of a guilty plea, the
Court required the petitioner to show “that there is a
reasonable probability that, but for counsel’s errors, [the
defendant] would not have pleaded guilty and would have insisted on
going to trial.”
Ibid.
In contrast to
Hill, here the ineffective
advice led not to an offer’s acceptance but to its rejection.
Having to stand trial, not choosing to waive it, is the prejudice
alleged. In these circumstances a defendant must show that but for
the ineffective advice of counsel there is a reasonable prob-
ability that the plea offer would have been presented to the court
(
i.e., that the defendant would have accepted the plea and
the prosecution would not have withdrawn it in light of intervening
circumstances), that the court would have accepted its terms, and
that the conviction or sentence, or both, under the offer’s
terms would have been less severe than under the judgment and
sentence that in fact were imposed. Here, the Court of Appeals for
the Sixth Circuit agreed with that test for
Strickland
prejudice in the context of a rejected plea bargain. This is
consistent with the test adopted and applied by other appellate
courts without demonstrated difficulties or systemic disruptions.
See 376 Fed. Appx., at 571–573; see also,
e.g.,
United States v.
Rodriguez Rodriguez, 929 F.2d 747,
753, n. 1 (CA1 1991)
(per curiam); United
States v.
Gordon,
156 F.3d 376, 380–381 (CA2 1998)
(per curiam); United States v.
Day, 969
F.2d 39, 43–45 (CA3 1992);
Beckham v.
Wainwright, 639 F.2d 262, 267 (CA5 1981);
Julian v.
Bartley, 495 F.3d 487, 498–500 (CA7 2007);
Wanatee v.
Ault,
259 F.3d 700, 703–704 (CA8 2001);
Nunes v.
Mueller,
350 F.3d 1045, 1052–1053 (CA9 2003);
Williams v.
Jones, 571 F.3d 1086, 1094–1095 (CA10 2009)
(per curiam); United States v.
Gaviria,
116 F.3d 1498, 1512–1514 (CADC 1997)
(per curiam).
Petitioner and the Solicitor General propose a
different, far more narrow, view of the Sixth Amendment. They
contend there can be no finding of
Strickland prejudice
arising from plea bargaining if the defendant is later convicted at
a fair trial. The three reasons petitioner and the Solicitor
General offer for their approach are unpersuasive.
First, petitioner and the Solicitor General
claim that the sole purpose of the Sixth Amendment is to protect
the right to a fair trial. Errors before trial, they argue, are not
cognizable under the Sixth Amendment unless they affect the
fairness of the trial itself. See Brief for Petitioner 12–21;
Brief for United States as
Amicus Curiae 10–12. The
Sixth Amendment, however, is not so narrow in its reach. Cf.
Frye,
ante, at 11 (holding that a defendant can show
prejudice under
Strickland even absent a showing that the
deficient performance precluded him from going to trial). The Sixth
Amendment requires effective assistance of counsel at critical
stages of a criminal proceeding. Its protections are not designed
simply to protect the trial, even though “counsel’s
absence [in these stages] may derogate from the accused’s
right to a fair trial.”
United States v.
Wade,
388 U.S.
218, 226 (1967). The constitutional guarantee applies to
pretrial critical stages that are part of the whole course of a
criminal proceeding, a proceeding in which defendants cannot be
presumed to make critical decisions without counsel’s advice.
This is consistent, too, with the rule that defendants have a right
to effective assistance of counsel on appeal, even though that
cannot in any way be characterized as part of the trial. See,
e.g., Halbert v.
Michigan,
545
U.S. 605 (2005);
Evitts v.
Lucey,
469 U.S.
387 (1985). The precedents also establish that there exists a
right to counsel during sentencing in both noncapital, see
Glover v.
United States,
531
U.S. 198, 203–204 (2001);
Mempa v.
Rhay,
389 U.S.
128 (1967), and capital cases, see
Wiggins v.
Smith,
539 U.S.
510, 538 (2003). Even though sentencing does not concern the
defendant’s guilt or innocence, ineffective assistance of
counsel during a sentencing hearing can result in
Strickland
prejudice because “any amount of [additional] jail time has
Sixth Amendment significance.”
Glover,
supra,
at 203.
The Court, moreover, has not followed a rigid
rule that an otherwise fair trial remedies errors not occurring at
the trial itself. It has inquired instead whether the trial cured
the particular error at issue. Thus, in
Vasquez v.
Hillery,
474 U.S.
254 (1986), the deliberate exclusion of all African-Americans
from a grand jury was prejudicial be- cause a defendant may have
been tried on charges that would not have been brought at all by a
properly constituted grand jury.
Id., at 263; see
Ballard v.
United States,
329
U.S. 187, 195 (1946) (dismissing an indictment returned by a
grand jury from which women were excluded); see also
Stirone
v.
United States,
361 U.S.
212, 218–219 (1960) (reversing a defendant’s
conviction because the jury may have based its verdict on acts not
charged in the indictment). By contrast, in
United States v.
Mechanik,
475 U.S.
66 (1986), the complained-of error was a violation of a grand
jury rule meant to ensure probable cause existed to believe a
defendant was guilty. A subsequent trial, resulting in a verdict of
guilt, cured this error. See
id., at 72–73.
In the instant case respondent went to trial
rather than accept a plea deal, and it is conceded this was the
result of ineffective assistance during the plea negotiation
process. Respondent received a more severe sentence at trial, one
3½ times more severe than he likely would have received by
pleading guilty. Far from curing the error, the trial caused the
injury from the error. Even if the trial itself is free from
constitutional flaw, the defendant who goes to trial instead of
taking a more favorable plea may be prejudiced from either a
conviction on more serious counts or the imposition of a more
severe sentence.
Second, petitioner claims this Court refined
Strickland’s prejudice analysis in
Fretwell to
add an additional requirement that the defendant show that
ineffective assistance of counsel led to his being denied a
substantive or procedural right. Brief for Petitioner 12–13.
The Court has rejected the argument that
Fretwell modified
Strickland before and does so again now. See
Williams
v.
Taylor,
529 U.S.
362, 391 (2000) (“The Virginia Supreme Court erred in
holding that our decision in
Lockhart v.
Fretwell,
506 U.S.
364 (1993), modified or in some way supplanted the rule set
down in
Strickland”); see also
Glover,
supra, at 203 (“The Court explained last Term [in
Williams] that our holding in
Lockhart does not
supplant the
Strickland analysis”).
Fretwell could not show
Strickland
prejudice resulting from his attorney’s failure to object to
the use of a sentencing factor the Eighth Circuit had erroneously
(and temporarily) found to be impermissible.
Fretwell, 506
U. S., at 373. Because the objection upon which his
ineffective-assistance-of-counsel claim was premised was meritless,
Fretwell could not demonstrate an error entitling him to relief.
The case presented the “unusual circumstance where the
defendant attempts to demonstrate prejudice based on considerations
that, as a matter of law, ought not inform the inquiry.”
Ibid. (O’Connor, J., concurring). See also
ibid. (recognizing “[t]he determinative
question—whether there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the
proceeding would have been different—remains unchanged”
(internal quotation marks and citation omitted)). It is for this
same reason a defendant cannot show prejudice based on
counsel’s refusal to present perjured testimony, even if such
testimony might have affected the outcome of the case. See
Nix v.
Whiteside,
475 U.S.
157, 175 (1986) (holding first that counsel’s refusal to
present perjured testimony breached no professional duty and second
that it cannot establish prejudice under
Strickland).
Both
Fretwell and
Nix are
instructive in that they demonstrate “there are also
situations in which it would be unjust to characterize the
likelihood of a different outcome as legitimate
‘prejudice,’ ”
Williams,
supra, at 391–392, because defendants would receive a
windfall as a result of the application of an incorrect legal
principle or a defense strategy outside the law. Here, however, the
injured client seeks relief from counsel’s failure to meet a
valid legal standard, not from counsel’s refusal to violate
it. He maintains that, absent ineffective counsel, he would have
accepted a plea offer for a sentence the prosecution evidently
deemed consistent with the sound administration of criminal
justice. The favorable sentence that eluded the defendant in the
criminal proceeding appears to be the sentence he or others in his
position would have received in the ordinary course, absent the
failings of counsel. See Bibas, Regulating the Plea-Bargaining
Market: From Caveat Emptor to Consumer Protection, 99 Cal. L. Rev.
1117, 1138 (2011) (“The expected post-trial sentence is
imposed in only a few percent of cases. It is like the sticker
price for cars: only an ignorant, ill-advised consumer would view
full price as the norm and anything less a bargain”); see
also
Frye,
ante, at 7–8. If a plea bargain has
been offered, a defendant has the right to effective assistance of
counsel in considering whether to accept it. If that right is
denied, prejudice can be shown if loss of the plea opportunity led
to a trial resulting in a conviction on more serious charges or the
imposition of a more severe sentence.
It is, of course, true that defendants have
“no right to be offered a plea . . . nor a federal
right that the judge accept it.”
Frye,
ante, at
12. In the circumstances here, that is beside the point. If no plea
offer is made, or a plea deal is accepted by the defendant but
rejected by the judge, the issue raised here simply does not arise.
Much the same reasoning guides cases that find criminal defendants
have a right to effective assistance of counsel in direct appeals
even though the Constitution does not require States to provide a
system of appellate review at all. See
Evitts,
469 U.S.
387; see also
Douglas v.
California,
372 U.S.
353 (1963). As in those cases, “[w]hen a State opts to
act in a field where its action has significant discretionary
elements, it must nonetheless act in accord with the dictates of
the Constitution.”
Evitts,
supra, at 401.
Third, petitioner seeks to preserve the
conviction obtained by the State by arguing that the purpose of the
Sixth Amendment is to ensure “the reliability of [a]
conviction following trial.” Brief for Petitioner 13. This
argument, too, fails to comprehend the full scope of the Sixth
Amendment’s protections; and it is refuted by precedent.
Strickland recognized “[t]he benchmark for judging any
claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that
the trial cannot be relied on as having produced a just
result.” 466 U. S., at 686. The goal of a just result is
not divorced from the reliability of a conviction, see
United
States v.
Cronic,
466 U.S.
648, 658 (1984); but here the question is not the fairness or
reliability of the trial but the fairness and regularity of the
processes that preceded it, which caused the defendant to lose
benefits he would have received in the ordinary course but for
counsel’s ineffective assistance.
There are instances, furthermore, where a
reliable trial does not foreclose relief when counsel has failed to
assert rights that may have altered the outcome. In
Kimmelman v.
Morrison,
477 U.S.
365 (1986), the Court held that an attorney’s failure to
timely move to suppress evidence during trial could be grounds for
federal habeas relief. The Court rejected the suggestion that the
“failure to make a timely request for the exclusion of
illegally seized evidence” could not be the basis for a Sixth
Amendment violation because the evidence “is ‘typically
reliable and often the most probative information bearing on the
guilt or innocence of the defendant.’ ”
Id., at 379 (quoting
Stone v.
Powell,
428 U.S.
465, 490 (1976)). “The constitutional rights of criminal
defendants,” the Court observed, “are granted to the
innocent and the guilty alike. Consequently, we decline to hold
either that the guarantee of effective assistance of counsel
belongs solely to the innocent or that it attaches only to matters
affecting the determination of actual guilt.” 477
U. S.
, at 380. The same logic applies here. The fact
that respondent is guilty does not mean he was not entitled by the
Sixth Amendment to effective assistance or that he suffered no
prejudice from his attorney’s deficient performance during
plea bargaining.
In the end, petitioner’s three arguments
amount to one general contention: A fair trial wipes clean any
deficient performance by defense counsel during plea bargaining.
That position ignores the reality that criminal justice today is
for the most part a system of pleas, not a system of trials.
Ninety-seven percent of federal convictions and ninety-four percent
of state convictions are the result of guilty pleas. See
Frye,
ante, at 7. As explained in
Frye, the
right to adequate assistance of counsel cannot be defined or
enforced without taking account of the central role plea bargaining
plays in securing convictions and determining sentences.
Ibid. (“[I]t is insufficient simply to point to the
guarantee of a fair trial as a backstop that inoculates any errors
in the pretrial process”).
C
Even if a defendant shows ineffective
assistance of counsel has caused the rejection of a plea leading to
a trial and a more severe sentence, there is the question of what
constitutes an appropriate remedy. That question must now be
addressed.
Sixth Amendment remedies should be
“tailored to the injury suffered from the constitutional
violation and should not unnecessarily infringe on competing
interests.”
United States v.
Morrison,
449 U.S.
361, 364 (1981). Thus, a remedy must “neutralize the
taint” of a constitutional violation,
id., at 365,
while at the same time not grant a windfall to the defendant or
needlessly squander the considerable resources the State properly
invested in the criminal prosecution. See
Mechanik, 475
U. S., at 72 (“The reversal of a conviction entails
substantial social costs: it forces jurors, witnesses, courts, the
prosecution, and the defendants to expend further time, energy, and
other resources to repeat a trial that has already once taken
place; victims may be asked to relive their disturbing
experiences”).
The specific injury suffered by defendants who
decline a plea offer as a result of ineffective assistance of
counsel and then receive a greater sentence as a result of trial
can come in at least one of two forms. In some cases, the sole
advantage a defendant would have received under the plea is a
lesser sentence. This is typically the case when the charges that
would have been admitted as part of the plea bargain are the same
as the charges the defendant was convicted of after trial. In this
situation the court may conduct an evidentiary hearing to determine
whether the defendant has shown a reasonable probability that but
for counsel’s errors he would have accepted the plea. If the
showing is made, the court may exercise discretion in determining
whether the defendant should receive the term of imprisonment the
government offered in the plea, the sentence he received at trial,
or something in between.
In some situations it may be that resentencing
alone will not be full redress for the constitutional injury. If,
for example, an offer was for a guilty plea to a count or counts
less serious than the ones for which a defendant was convicted
after trial, or if a mandatory sentence confines a judge’s
sentencing discretion after trial, a resentencing based on the
conviction at trial may not suffice. See,
e.g., Williams,
571 F. 3d, at 1088;
Riggs v.
Fairman,
399 F.3d 1179, 1181 (CA9 2005). In these circumstances, the
proper exercise of discretion to remedy the constitutional injury
may be to require the prosecution to reoffer the plea proposal.
Once this has occurred, the judge can then exercise discretion in
deciding whether to vacate the conviction from trial and accept the
plea or leave the conviction undisturbed.
In implementing a remedy in both of these
situations, the trial court must weigh various factors; and the
boundaries of proper discretion need not be defined here.
Principles elaborated over time in decisions of state and federal
courts, and in statutes and rules, will serve to give more complete
guidance as to the factors that should bear upon the exercise of
the judge’s discretion. At this point, however, it suffices
to note two considerations that are of relevance.
First, a court may take account of a
defendant’s earlier expressed willingness, or unwillingness,
to accept responsibility for his or her actions. Second, it is not
necessary here to decide as a constitutional rule that a judge is
re- quired to prescind (that is to say disregard) any information
concerning the crime that was discovered after the plea offer was
made. The time continuum makes it difficult to restore the
defendant and the prosecution to the precise positions they
occupied prior to the rejection of the plea offer, but that
baseline can be consulted in finding a remedy that does not require
the prosecution to incur the expense of conducting a new trial.
Petitioner argues that implementing a remedy
here will open the floodgates to litigation by defendants seeking
to unsettle their convictions. See Brief for Petitioner 20.
Petitioner’s concern is misplaced. Courts have recognized
claims of this sort for over 30 years, see
supra, at 5, and
yet there is no indication that the system is overwhelmed by these
types of suits or that defendants are receiving windfalls as a
result of strategically timed
Strickland claims. See also
Padilla, 559 U. S., at ___ (slip op., at 14) (“We
confronted a similar ‘floodgates’ concern in
Hill,” but a “flood did not follow in that
decision’s wake”). In addition, the “prosecution
and the trial courts may adopt some measures to help ensure against
late, frivolous, or fabricated claims after a later, less
advantageous plea offer has been accepted or after a trial leading
to conviction.”
Frye,
ante, at 10. See also
ibid. (listing procedures currently used by various States).
This, too, will help ensure against meritless claims.
III
The standards for ineffective assistance of
counsel when a defendant rejects a plea offer and goes to trial
must now be applied to this case. Respondent brings a federal
collateral challenge to a state-court conviction. Under AEDPA, a
federal court may not grant a petition for a writ of habeas corpus
unless the state court’s adjudication on the merits was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court
of the United States.” 28 U. S. C.
§2254(d)(1). A decision is contrary to clearly established law
if the state court “applies a rule that con- tradicts the
governing law set forth in [Supreme Court] cases.”
Williams v.
Taylor,
529 U.S.
362, 405 (2000) (opinion for the Court by O’Connor, J.).
The Court of Appeals for the Sixth Circuit could not determine
whether the Michigan Court of Appeals addressed respondent’s
ineffective-assistance-of-counsel claim or, if it did, “what
the court decided, or even whether the correct legal rule was
identified.” 376 Fed. Appx., at 568–569.
The state court’s decision may not be
quite so opaque as the Court of Appeals for the Sixth Circuit
thought, yet the federal court was correct to note that AEDPA does
not present a bar to granting respondent relief. That is because
the Michigan Court of Appeals identified respondent’s
ineffective-assistance-of-counsel claim but failed to apply
Strickland to assess it. Rather than applying
Strickland, the state court simply found that
respondent’s rejection of the plea was knowing and voluntary.
Cooper, 2005 WL 599740, *1, App. to Pet. for Cert. 45a. An
inquiry into whether the rejection of a plea is knowing and
voluntary, however, is not the correct means by which to address a
claim of ineffective assistance of counsel. See
Hill, 474
U. S., at 370 (applying
Strickland to assess a claim of
ineffective assistance of counsel arising out of the plea
negotiation process). After stating the incorrect standard,
moreover, the state court then made an irrelevant observation about
counsel’s performance at trial and mischaracterized
respondent’s claim as a complaint that his attorney did not
obtain a more favorable plea bargain. By failing to apply
Strickland to assess the ineffective-assistance-of-counsel
claim respondent raised, the state court’s adjudication was
contrary to clearly established federal law. And in that
circumstance the federal courts in this habeas action can determine
the principles necessary to grant relief. See
Panetti v.
Quarterman,
551 U.S.
930, 948 (2007).
Respondent has satisfied
Strickland’s two-part test. Regarding performance,
perhaps it could be accepted that it is unclear whether
respondent’s counsel believed respondent could not be
convicted for assault with intent to murder as a matter of law
because the shots hit Mundy below the waist, or whether he simply
thought this would be a persuasive argument to make to the jury to
show lack of specific intent. And, as the Court of Appeals for the
Sixth Circuit suggested, an erroneous strategic prediction about
the outcome of a trial is not necessarily deficient performance.
Here, however, the fact of deficient performance has been conceded
by all parties. The case comes to us on that assumption, so there
is no need to address this question.
As to prejudice, respondent has shown that but
for counsel’s deficient performance there is a reasonable
probability he and the trial court would have accepted the guilty
plea. See 376 Fed. Appx., at 571–572. In addition, as a
result of not accepting the plea and being convicted at trial,
respondent received a minimum sentence 3½ times greater than
he would have received under the plea. The standard for ineffective
assistance under
Strickland has thus been satisfied.
As a remedy, the District Court ordered specific
performance of the original plea agreement. The correct remedy in
these circumstances, however, is to order the State to reoffer the
plea agreement. Presuming respondent accepts the offer, the state
trial court can then exercise its discretion in determining whether
to vacate the convictions and resentence respondent pursuant to the
plea agreement, to vacate only some of the convictions and
resentence respondent accordingly, or to leave the convictions and
sentence from trial undisturbed. See Mich. Ct. Rule 6.302(C)(3)
(2011) (“If there is a plea agreement and its terms provide
for the defendant’s plea to be made in exchange for a
specific sentence disposition or a prosecuto- rial sentence
recommendation, the court may . . . reject the
agreement”). Today’s decision leaves open to the trial
court how best to exercise that discretion in all the circumstances
of the case.
The judgment of the Court of Appeals for the
Sixth Circuit is vacated, and the case is remanded for further
proceedings consistent with this opinion.
It is so ordered.