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Opinion analysis: Court says more about federal habeas review than ineffective assistance in plea bargaining

Professor Rory K. Little teaches at UC Hastings College of the Law in San Francisco, and serves as Of Counsel to the law firm of McDermott Will & Emery.

Like the first robin of spring, on Monday the Supreme Court signaled that its October Term 2013 is fully in swing by summarily reversing the Ninth Circuit in a Section 1983 Fourth Amendment case (Stanton v. Sims).  With that symbolic opener out of the way, the Court on Tuesday reversed its new surrogate Ninth, the Sixth Circuit in Burt v. Titlow, the first full criminal law opinion of the Term.

As previewed here and here, Titlow presented various follow-on questions from the Court’s Lafler and Frye decisions of 2012, which extended ineffective assistance of counsel doctrine to the plea bargaining context.  But the Court’s nine-to-zero ruling (with Justice Sotomayor filing a separate concurrence and Justice Ginsburg concurring only in the judgment) did not resolve most of those follow-up questions.  Instead, the Court was plainly more concerned about the Sixth Circuit’s failure to apply the “doubly deferential” standards of federal habeas corpus law.

You may recall the convoluted facts: Titlow, who helped her aunt kill her uncle, initially pled guilty to manslaughter in return for a seven- to fifteen-year sentence and her promise to testify for the prosecution at her aunt’s trial.  But then Titlow met a deputy sheriff who told her she should not plead guilty if she did not believe she was guilty.  (And Titlow appears to never have been able to accept, or legally understand, that she could be guilty of murder just for “helping” her aunt.)  Titlow then retained a new lawyer (Frederick Toca) three days before the aunt’s trial, and together they appeared to withdraw Titlow’s plea.  Without Titlow’s “crucial” testimony, her aunt was then acquitted (and subsequently died).  The government then tried Titlow on reinstated first-degree murder charges; after the jury convicted her of second-degree murder, Titlow was sentenced to a twenty- to forty-year term (years longer than her initial plea bargain).  With her now third lawyer, Titlow then claimed ineffective assistance by Toca, for allegedly deficiently advising her to withdraw her plea without any investigation of the case.  The Michigan courts rejected this claim, finding that Toca had not acted unreasonably given Titlow’s “protestations of innocence.”

Then on federal habeas corpus, the district court found that the state court’s rejection of Titlow’s claim was “completely reasonable on the law and the facts.”  But the Sixth Circuit reversed, pointing to some serious evidentiary gaps and inconsistencies which, that court found, showed the Michigan court’s decision to be “clearly unreasonable” under federal habeas provisions, and Toca’s performance to be ineffective under Strickland.

Justice Alito’s opinion (joined by all Justices except Ginsburg) saw no need to reach the questions of prejudice and remedy under Strickland and Lafler because the Sixth Circuit had erred under federal habeas law, for two reasons: it (1) had “refus[ed] to credit a state court’s reasonable factual finding” and (2) had “assum[ed] that counsel was ineffective where the record was silent.”  First, “the record readily supports” the factual finding that Titlow wanted to withdraw her plea because of a “desire to assert her innocence,” and there was “no evidence” of what Toca’s actual advice or preparation had been.  Thus it was error not to accept the state findings.  And second, “it should go without saying that the absence of evidence cannot overcome the strong presumption” (endorsed in Strickland) that a lawyer’s performance was reasonable.  (With regard to what “caused” Titlow to withdraw her plea, the Court’s opinion broadly asserts that “respondent does not offer an alternative theory.”  But as Justice Ginsburg’s separate opinion points out, Titlow had in fact averred that Toca had advised her that “he could take [her] case to trial and win,” an alternative causative theory: bad lawyer’s advice.  The Court, however, “note[s]” that this was merely “respondent’s self-serving testimony;” and even Justice Ginsburg concludes that this factual skirmish is of no weight in the final analysis.)

The Court’s relatively brief eleven-page opinion ultimately stands as yet another recent habeas reversal in support of the highly deferential standards that the 1996 Anti-Terrorism and Effective Death Penalty (“AEDPA”) amendments enshrined in federal habeas law.  Those statutes firmly place the burden to prove “unreasonable” fact-finding and legal conclusions on a petitioner, not the state.  And AEDPA and Strickland, writes the Court, “do not permit federal judges to so casually second-guess the decisions of their state-court colleagues.”  Before resolving Titlow’s case in Part III of his opinion, Justice Alito devotes all of Part II to this “foundational principle of our federal system: State courts are adequate forums for the vindication of federal rights.”  Thus deference on federal habeas is the “center of gravity” in the Titlow opinion.

Nevertheless, the good news in Titlow, at least for lawyer-ethics fans, is that the Court in no way endorses attorney Toca’s conduct.  The lawyer’s conduct here was “troubling” and “far from exemplary.”  “He may well have violated the rules of professional conduct by accepting respondent’s publication rights a partial payment for his services, and he waited weeks before consulting respondent’s first lawyer about the case” (well after he helped Titlow withdraw her plea).  Moreover, the Court recognizes, “a defendant’s proclamation of innocence does not relieve counsel of his normal responsibilities under Strickland.”  Because the Michigan court had appeared to state the opposite in its opinion, this quietly contrary statement allows us Professional Responsibility teachers to breathe a sigh of relief.

Justice Sotomayor expanded on this last point in a separate concurrence (while “join[ing] fully in the opinion of the Court”).  She writes that it “bears emphasis: Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must ‘make an independent examination of the facts, circumstances, pleadings and laws involved and then … offer his informed opinion as to what pleas should be entered.’”  A lawyer must “abide by his client’s decision” but “only after having provided the client with competent and fully informed advice, including an analysis of the risks the client would face in proceeding to trial.”   Justice Sotomayor joins the Court’s opinion “because (and only because) respondent failed to present enough evidence” to carry her burden to overcome “the twin presumptions of AEDPA and Strickland.”

Only Justice Ginsburg did not join the Court’s opinion; she concurred in the judgment only.  She found “dubious” the state court’s claim that Toca acted reasonably, and provides some additional facts that the majority omits.  “Nevertheless,” for Justice Ginsburg “one thing is crystal clear”: once Titlow’s aunt was acquitted (and then died), Titlow could no longer carry out her part of the original plea bargain, and so “the bargain failed.”  Thus, because the original plea offer could no longer exist under any scenario, “the prosecutor could not be ordered to ‘renew’” it.  Thus, the Court’s judgment, reversing the Sixth Circuit’s ruling which had ordered the prosecutor to do this, is palatable to Justice Ginsburg.


In the end, the Court’s unsatisfying engagement with the messy realities of plea bargaining and varying lawyer talents and efforts, may persuade it to withdraw from the Lafler-Frye field for a while.  Although then again, perhaps not.  Justice Alito was a strong dissenter in those cases, and this case did not provide the vehicle the Court thought it might to address questions of remedy that continue to confound the lower courts.  Thus the Court may well still be looking for vehicles to advance the law down the new road that Lafler, Frye, and 2010’s Padilla decision opened.  But Titlow suggests that they will be looking for direct review cases from the state and federal courts to clarify the law in this area, rather than through the foggy filter that federal habeas doctrine imposes.

Recommended Citation: Rory Little, Opinion analysis: Court says more about federal habeas review than ineffective assistance in plea bargaining, SCOTUSblog (Nov. 6, 2013, 3:42 PM),