Argued: March 20, 2019
from the United States District Court for the Middle District
of Tennessee at Nashville. No. 3:14-cv-02305-Waverly D.
Crenshaw, Jr., District Judge.
Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL, Nashville,
Tennessee, for Appellee.
Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant.
Nicholas S. Bolduc, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
GRIFFIN, CIRCUIT JUDGE
Joseph Johnson was convicted of multiple felonies in
Tennessee state court arising out of the robbery of a
Nashville Taco Bell. He now seeks a writ of habeas corpus,
arguing that his Sixth Amendment right to counsel was
violated by his trial counsel's deficient performance in
the pretrial plea-negotiation phase of his state-court
proceedings and that the state court's opposite
conclusion was contrary to or involved an unreasonable
application of federal law. The district court found no basis
for habeas relief and, for the reasons that follow, we
November of 2003, petitioner and a friend robbed a Taco Bell
of approximately $200 to $300. State v. Johnson,
M2007-01644-CCA-R3-CD, 2009 WL 2567729 at *1-2 (Tenn. Crim.
App. Aug. 18, 2009). Police captured them shortly thereafter.
Id. at *3. Petitioner was indicted on four charges
related to that robbery. Id. at *1. Attorney Paul
Walwyn represented petitioner for pretrial and trial
proceedings. A few days before trial began, the state offered
a plea deal for petitioner to plead guilty to all counts in
exchange "for a 20 year sentence as a range two
offender." He allegedly rejected that offer, though the
parties debate some facts surrounding the plea process.
went to trial, where a Tennessee jury subsequently convicted
him of all four charges: two counts of aggravated robbery,
one count of aggravated assault, and one count of felony
evading arrest, though one aggravated-robbery conviction was
later changed to aggravated assault due to double jeopardy
concerns. Id. at *1, *5. The trial court sentenced
him to twenty-eight years' imprisonment for aggravated
robbery, eight years' imprisonment for one conviction of
aggravated assault, ten years' imprisonment on the other
aggravated-assault conviction, and eight years'
imprisonment for evading arrest, all to be served
consecutively, for a total of fifty-four years in prison.
Id. On direct appeal, petitioner raised
sufficiency-of-the-evidence claims on all four convictions,
challenges to his jury instructions, and challenges to his
sentences' lengths and their consecutive nature.
Id. at *5-19. The Tennessee Court of Criminal
Appeals (TCCA) affirmed, and the Tennessee Supreme Court
denied him permission to appeal. See id., perm.
app. denied (Feb. 22, 2010).
then filed a timely motion for postconviction relief in state
court. Among the numerous issues he raised was a claim of
ineffective assistance of trial counsel during the plea-
negotiation process. At an evidentiary hearing on the
petition, he testified that his attorney never advised him of
the 20-year plea offer until years after trial, when he
received the state's discovery packet. When asked if he
would have accepted the offer, petitioner testified variously
that "you damn skippy, with 50 something years, I would
have took 20 years," and "[i]t's possible, if I
knew what I was facing going to trial. It's highly
likely, yes, I would have accepted that 20 year deal."
But throughout the postconviction proceedings, petitioner
maintained his innocence of the crimes, and even speculated
that he may have been misidentified.
trial counsel, Walwyn, also testified at the hearing. On the
issue of plea offers, Walwyn stated that he
explained to [petitioner], because of his prior record,
it's, you know, the [prosecutor] is taking a hard stance
on this case. And basically they're wanting him to plead
to a lot of time, and he said, ["]well, I'm
innocent, I didn't rob anybody, I didn't do
it.["] He always said the same thing . . . . But in any
event, even prior to the trial, he basically said that
I'm not taking a deal of any sort.
later reiterated that he "did relay the offer" to
petitioner, but petitioner told him "he was not taking
any time for this."
postconviction court denied petitioner relief in a written
order, crediting Walwyn's testimony that he communicated
the offer and that petitioner was not interested in taking
any plea agreement. Petitioner again appealed to the TCCA,
which again affirmed. Johnson v. State,
M2012-02310-CCA-R3-PC, 2014 WL 793636, at *1 (Tenn. Crim.
App. Feb. 27, 2014). For the first time, the TCCA expanded
petitioner's claim from one in which his trial counsel
never conveyed the plea offer to him, to an additional
ineffectiveness claim-that Walwyn conveyed the plea offer but
did not advise petitioner of the much higher, consecutive
sentence he could face after trial. Id. at 7.
Addressing this new formulation, the TCCA reasoned that
Walwyn's performance was deficient, but petitioner could
not establish prejudice. Id. at *8-9. The court
recited the pertinent standards for determining ineffective
assistance in the plea context and specifically quoted
Lafler v. Cooper, 566 U.S. 156 (2012), for the
standard a defendant must meet to show prejudice in the
plea-negotiation context. Johnson, 2014 WL 793636,
at *8-9. The court reasoned that, despite the big disparity
between the plea offer and the possible sentence petitioner
faced after trial, he could not show prejudice because he was
uninterested in takin any plea offer at the time.
Id. at *9. The Tennessee Supreme Court again denied
him permission to appeal. See id., perm. app.
denied (Jul. 14, 2014).
then timely filed this petition for habeas corpus. He raised
numerous claims of ineffective assistance, including that
Walwyn provided constitutionally deficient counsel during the
plea-negotiation stage. In a thorough opinion, the district
court dismissed the petition. On the pertinent
ineffective-assistance issue, the district court determined
that the TCCA opinion did not contradict or unreasonably
apply clearly established federal law, nor did that court
base its decision on an unreasonable determination of the
facts. We granted a certificate of appealability limited to
his claim of ineffective assistance during plea bargaining.
an appeal from the denial of habeas relief, we review the
district court's legal conclusions de novo and its
factual findings for clear error." Scott v.
Houk, 760 F.3d 497, 503 (6th Cir. 2014) (citation
omitted). Under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), we can overturn a state conviction for
an issue adjudicated on the merits only if the relevant
state-court decision was (1) "contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States;" or (2) "based on an unreasonable
determination of the facts in light of the evidence
presented." 28 U.S.C. § 2254(d). When a habeas
petition arising under § 2254(d) is based upon a claim
of ineffective assistance of counsel, relief is all the more
difficult to come by. The standard for § 2254(d) relief
and the test for ineffective assistance under Strickland
v. Washington, 466 U.S. 668 (1984), are each
"highly deferential." Harrington v.
Richter, 562 U.S. 86, 105 (2011) (quoting
Strickland, 466 U.S. at 689). "[A]nd when the
two apply in tandem, review is 'doubly' so."
Id. (quoting Knowles v. Mirzayance, 556
U.S. 111, 123 (2009)).
Sixth Amendment provides that "[i]n all criminal
prosecutions, the accused shall . . . have the Assistance of
Counsel for his defence." U.S. Const. amend. VI. It
includes "the right to effective counsel-which
imposes a baseline requirement of competence."
United States v. Gonzalez-Lopez, 548 U.S. 140, 148
(2006) (emphasis added). And it applies at all critical
stages of criminal litigation, including pretrial plea
proceedings. Logan v. United States, 910 F.3d 864,
868 (6th Cir. 2018) (citing Missouri v. Frye, 566
U.S. 134, 140 (2012)). A defendant who rejects or otherwise
misses out on a formal plea offer because of deficient