     Case: 08-50181     Document: 00511949235         Page: 1     Date Filed: 08/08/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           August 8, 2012
                                       No. 08-50181
                                                                           Lyle W. Cayce
                                                                                Clerk
ANTHONY CHARLES ARNOLD,

                                                  Petitioner-Appellant,

v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Western District of Texas
                                   (05-CV-71)


                  ON REMAND FROM THE SUPREME COURT
                        OF THE UNITED STATES

Before HIGGINBOTHAM, SMITH, and ELROD, Circuit Judges.
PER CURIAM:*
        In our prior opinion in this case, we reversed the district court’s denial of
Arnold’s petition for habeas corpus under 28 U.S.C. § 2254. Arnold v. Thaler,
630 F.3d 367, 368 (5th Cir. 2011). Arnold’s petition challenges his Texas
conviction and life sentence on the ground that his trial counsel was ineffective
for not informing him about a plea offer of 15 years’ imprisonment. Adhering to

       *
         Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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                                  No. 08-50181

circuit precedent, we held that counsel’s failure to relay the offer fell below an
objective standard of reasonableness. Id. at 370 (citing Teague v. Scott, 60 F.3d
1167, 1171 (5th Cir. 1995)). We then rejected the district court’s conclusion that
Arnold was not prejudiced by his counsel’s deficient performance. Id. That
conclusion, we held, was based on the district court’s clearly erroneous factual
finding that Arnold does not claim that he would have accepted the plea offer
had counsel communicated it to him. Id. We remanded Arnold’s petition for the
district court to reconsider the prejudice issue and, in so doing, held that
“Arnold’s claim does not require him to demonstrate a reasonable probability
that the trial court would have approved the plea agreement, only a reasonable
probability that he himself would have accepted the plea offer while it was still
open.” Id. at 368.
      Respondent petitioned the Supreme Court for a writ of certiorari. The
Supreme Court vacated and remanded for further consideration in light of Lafler
v. Cooper, 566 U.S. __, 132 S. Ct. 1376 (2012). Lafler’s companion case, Missouri
v. Frye, confirms our holding that Arnold’s trial counsel was deficient in failing
to communicate the state’s plea offer before it expired. 566 U.S. __, 132 S. Ct.
1399, 1408 (2012); cf. United States v. Rivas-Lopez, 678 F.3d 353, 357 (5th Cir.
2012) (“The Supreme Court recently affirmed this Circuit’s case law, holding
that the Sixth Amendment protects against, and remedies, the rejection of
favorable plea offers for want of effective assistance of counsel.” (citing Lafler
and Frye)). Lafler, however, requires Arnold, in order to show prejudice, to
demonstrate a reasonable probability that the trial court would have approved
the plea agreement. Lafler held that
      [i]n these circumstances 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 (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

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      severe than under the judgment and sentence that in fact were
      imposed.
132 S. Ct. at 1385 (emphasis added).
      For the reasons that follow, we REVERSE the judgment of the district
court and REMAND Arnold’s petition for the district court to assess prejudice
under the standard articulated by Lafler.
                                          I.
      Arnold was indicted in the 238th District Court of Midland County, Texas
for aggravated sexual assault and aggravated kidnapping. Prior to Arnold’s jury
trial, the prosecutor communicated a plea offer of 25 years to Clifford Hardwick,
Arnold’s attorney at the time. Hardwick negotiated with the prosecutor and
obtained a better offer—15 years. The prosecutor did not impose a deadline for
responding to the offer. Hardwick never told Arnold about either offer. One to
two weeks later, the prosecutor rescinded the offer because she learned of
Arnold’s prior felony convictions and an earlier arrest for sexual assault. Some
time later, Arnold was appointed new counsel, who renewed plea discussions
with the prosecutor. The prosecutor’s final offer resulting from these discussions
was 40 years, which Arnold rejected.
      Following his conviction, the state trial court sentenced Arnold to life
imprisonment. Arnold moved for a new trial, asserting that Hardwick was
ineffective for failing to tell him about the earlier plea offers. At a hearing before
the state trial court on Arnold’s motion, the parties entered into a stipulation
that Arnold “never received the 15 year plea bargain offer or the 25 year plea
bargain offer from Mr. Hardwick, and if he had done so, he would have
considered it.” The prosecutor testified that if Arnold had accepted the offer
before it was rescinded, she would have honored the agreement. Nevertheless,
the trial court would have had the authority to reject the plea bargain in light
of Arnold’s criminal record. The trial court denied Arnold’s motion for a new
trial, quoting a transcript excerpt in which Arnold rejected the 40-year offer at

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a pre-trial conference. The court apparently mistook this 40-year offer for the
15-year offer that was the subject of the new trial motion and denied the motion
on that basis.
      The Eighth Court of Appeals affirmed on different grounds. Relying on
Texas case law, the court held that the prosecutor’s “intervening and evolving
knowledge of [Arnold’s] criminal history . . . changed the factual premises of [the]
original plea offer,” and therefore the offer was “withdrawn with just cause.”
Arnold v. State, No. 08-01-00298-CR, 2003 WL 21481028, at *3 (Tex. App.—El
Paso June 27, 2003, pet. ref’d) (not designated for publication) (citing Ex parte
Lemke, 13 S.W.3d 791, 796 (Tex. Crim. App. 2000)). The opinion did not address
the time period between when the offer was made and when it was withdrawn
or whether Arnold had shown a reasonable probability that he would have
accepted the offer during this period.
      Arnold sought habeas relief in federal court.        In his federal habeas
petition, Arnold claims he told the attorney who represented him at the state-
court hearing that he would have accepted the 15-year offer “because he was in
a racist county and the odds were against him.” He alleges that his attorney
never sought to put this information before the state trial court, beyond the
stipulation previously discussed. Arnold also submitted an affidavit to the
district court, stating that he “would have accepted the District Attorney’s plea-
bargain offer of 15 or 25 [years] had defense counsel informed me of the state’s
offer.” He claims that he was “deceived into stipulating” that he would have
merely considered, rather than actually accepted, the offer. According to his
affidavit, he misunderstood the meaning of the term: “When I stated ‘considered’,
I actually mean[t] that I would have definitely accepted the state’s plea-bargain
offer had the offer been related to me by defense counsel Cliff Hardwick.”
Nevertheless, in rejecting Arnold’s petition, the district court found that
“[nowhere] in his pleadings does [Arnold] say he would have accepted the plea
deal as offered.” Arnold filed a timely notice of appeal, and this court granted

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a certificate of appealability on the issue of whether Hardwick’s failure to convey
the original plea offer to Arnold constitutes ineffective assistance of counsel.
                                        II.
      Because the certified question was rejected on the merits by the state
appellate court on direct appeal of Arnold’s conviction, we must defer to the state
court’s adjudication unless it was “contrary to” or an “unreasonable application
of” clearly established federal law as determined by the Supreme Court. 28
U.S.C. § 2254(d)(1). To find an unreasonable application of federal law, this
court must determine that the state court’s ruling was objectively unreasonable
and not simply erroneous or incorrect. Williams v. Taylor, 529 U.S. 362, 411
(2000). We review the district court’s findings of fact for clear error and its
conclusions of law de novo. Martinez v. Johnson, 255 F.3d 229, 237 (5th
Cir. 2001).
      A petitioner claiming ineffective assistance of counsel must show that: (1)
his attorney’s performance fell below an objective standard of reasonableness,
and (2) there is a reasonable probability that, but for his counsel’s unprofessional
errors, the result of the proceeding would have been different. Strickland v.
Washington, 466 U.S. 668, 687-88, 694 (1984).          The two-prong Strickland
analysis applies to ineffective-assistance claims arising out of counsel’s failure
to communicate a plea offer before it expires. Frye, 132 S. Ct. at 1408–10.
      No one disputes, and Frye confirms, that Hardwick’s complete failure to
relay the 15-year plea offer to Arnold fell below an objective standard of
reasonableness. Accord Teague, 60 F.3d at1171 (holding that “failing to inform
the defendant of a plea offer could amount to ineffective assistance of counsel”).
The central dispute, therefore, is whether Arnold was prejudiced by Hardwick’s
deficiency. To establish prejudice on his ineffective-assistance claim, Arnold
      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 (i.e., that the defendant would have accepted
      the plea and the prosecution would not have withdrawn it in light

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       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.

Lafler, 132 S. Ct. at 1385. A reasonable probability means “a probability
sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
The standard “is less than a preponderance of the evidence.”                       Dale v.
Quarterman, 553 F.3d 876, 880 (5th Cir. 2008) (per curiam) (citing Strickland,
466 U.S. at 693–94).
       On this question, the state court made no finding to which we must defer.1
If anything, by rejecting the claim on other grounds, the state court implicitly
agreed—or at the very least assumed—that Arnold would have accepted the
offer. See Valdez v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001) (“The
presumption of correctness not only applies to explicit findings of fact, but it also
applies to those unarticulated findings which are necessary to the state court’s
conclusions of mixed law and fact.”). The district court did make a finding on
this point, however, determining that Arnold does not even claim that he would
have accepted the offer. Yet in his habeas petition and in a supporting affidavit,
Arnold unequivocally stated that he would have accepted the 15-year offer if he
had known about it. Arnold’s petition alleges that he told his attorney that “had
he been advanced the plea bargain offer of 15 years, that he would have accepted
the offer, because he was in a racist county and the odds were against him.”
Similarly, the affidavit submitted to the district court stated that he “would have
accepted the District Attorney’s plea-bargain offer of 15 or 25 [years] had defense
counsel informed me of the state’s offer.” Respondent does not attempt to defend
or explain the inconsistency between the habeas record and the district court’s
finding, instead glossing over Arnold’s assertions in his petition and focusing on

       1
         The only mention of the issue in the state court’s opinion is the observation that
Arnold “claims that if he had known about the deal he would have accepted the offer.” Arnold,
2003 WL 21481028, at *3.

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statements made in the state proceeding. Thus, the district court’s finding that
“[nowhere] in his pleadings does Petitioner say he would have accepted the plea
deal as offered” is clearly erroneous.
      Despite the district court’s misreading of the record, Respondent urges us
to affirm on another ground: even if Arnold had accepted the 15-year plea offer,
it would not necessarily have been approved by the trial court. Under Lafler,
Arnold must show a reasonable probability “that the [trial] court would have
accepted [the] terms” of the plea offer. 132 S. Ct. at 1385. The parties have not
briefed this issue before us, nor was it considered by the district court.
Therefore, we believe it best to remand to allow the district court first to apply
the test articulated in Lafler. See, e.g., Cantu v. Thaler, 682 F.3d 1053, 1054
(5th Cir. 2012).
      Finally, in the supplemental briefing that we ordered for the parties to
address Lafler’s effect on this case, Respondent now argues that it was
objectively reasonable under “clearly established Federal law, as determined by
the Supreme Court,” 28 U.S.C. § 2254(d)(1), for the state court to conclude, prior
to Lafler, that “Arnold suffered no Strickland prejudice because the sole
consequence of counsel’s deficient performance was a fair trial.” Four Justices
agreed with this interpretation of the Court’s precedent in Lafler. 132 S. Ct. at
1392 (Scalia, J., dissenting) (joined by Roberts, C.J., and Thomas, J.); id. at 1398
(Alito, J., dissenting). There is much force to Respondent’s argument, but it is
foreclosed by Lafler. There, the four dissenting Justices argued that the Court
lacked authority to grant relief under § 2254(d)(1) because it was reasonable
prior to Lafler’s “novel” holding for a state court to conclude that a conviction
pursuant to a fair trial cannot produce Strickland prejudice. Id. at 1395–96
(Scalia, J., dissenting); id. at 1398 (Alito, J., dissenting).     But the Court
nonetheless found prejudice for purposes of § 2254(d)(1) and remanded for
further proceedings. Id. at 1391 (opinion of the Court).



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                                    III.
      The judgment of the district court is REVERSED and the petition is
REMANDED for the district court to assess prejudice under the standard
articulated by Lafler.




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