     Case: 15-30258      Document: 00514143166         Page: 1    Date Filed: 09/05/2017




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                       United States Court of Appeals
                                                                                Fifth Circuit
                                      No. 15-30258                            FILED
                                                                       September 5, 2017

MATT BANKS,
                                                                         Lyle W. Cayce
                                                                              Clerk

              Petitioner - Appellant

v.

DARREL VANNOY, WARDEN, LOUISIANA STATE PENITENTIARY,

              Respondent - Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                              USDC 3:14-CV-2554


Before STEWART, Chief Judge, and KING and JONES, Circuit Judges.
PER CURIAM:*
       Defendant-Appellant Matt Banks, Louisiana prisoner #116002, was
convicted by a jury of two counts of second degree murder and was sentenced
to two consecutive life terms of imprisonment. His convictions and sentences
were affirmed on appeal. State v. Banks, 86 So. 3d 56 (La. App. 2d 1/25/12).
After failing to obtain state habeas relief, Banks filed a 28 U.S.C. § 2254
petition challenging his convictions and sentences. The district court denied
Banks’s petition and denied a certificate of appealability (“COA”). This court



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30258
granted Banks a COA on the sole issue of whether the district court erred in
denying relief on Banks’s claim that his trial counsel rendered ineffective
assistance by failing to inform him of two plea deals offered by the district
attorney. This appeal ensued. For the following reasons, we VACATE and
REMAND for further proceedings.
                                 I.      Background
      In the state habeas proceedings, Banks argued that his trial counsel
never informed him of two plea offers made by the district attorney and never
discussed the possibility of a conditional plea agreement. The district attorney
communicated the first offer in a letter dated March 23, 2010:
           I am willing to allow Matt Banks to plea to 2 counts of
           manslaughter with a 15 year cap. Both sentences can run
           concurrent. This offer will remain open until April 15. If I
           have to go through the process of exhuming the bodies in
           order to present this matter for trial, then all offers are off.

The following year, in a second letter dated January 21, 2011, the district
attorney again contacted defense counsel and warned,
           In preparation for the trial, I am arranging for the bodies
           to be exhumed next week . . . . [Once] the bodies are
           exhumed, I will no longer offer Mr. Banks the original plea
           offer of manslaughter with a 10 year cap. He might want
           to consider the offer carefully before it is gone.

A week later, on January 28, 2011, the bodies of the two victims were exhumed
and the record contains nothing further with respect to these two plea offers in
terms of communication between the district attorney and Banks’s trial
counsel.    According to Banks, after he was convicted and sentenced, he
requested a copy of his file from his trial attorney. Banks’s attorney sent him
a copy of his entire file on June 4, 2012. Banks claims that it was at this time
that he first discovered the two letters from the district attorney containing
the plea offers.
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                                       No. 15-30258
       Banks contended in the state habeas proceedings that although he was
“actually innocent of the crimes charged, when faced with the possibility of two
consecutive life sentences . . . counsel should have at least met with [him] to
discuss the possibility of avoiding a trial.” No affidavit was submitted by trial
counsel in response to Banks’s claims, no evidentiary hearing was held, and no
finding was made by the state court regarding whether trial counsel in fact
informed Banks of the plea offers evidenced by the letters from the district
attorney to defense counsel. Instead, in its 2013 Ruling on Application for Post-
Conviction Relief and Related Motions, the state court explained:
           [Banks] claims he only recently learned of the offers but
           does not specify when or how he obtained the letters.
           Throughout these proceedings [Banks] has asserted his
           innocence of the murders. Thus, there is no reason to
           believe he would have agreed to plead guilty, even to a
           reduced charge. His trial counsel is an experienced and
           well-respected trial attorney with a reputation in the legal
           community for zealously fighting for his clients, and he did
           so in this case. He had no reason to withhold these offers
           from [Banks].

The state court then summarily denied all of Banks’s ineffective assistance of
counsel claims 1 on the ground that he could not establish that his counsel’s
performance was deficient or that he was prejudiced by any alleged deficient
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
       The magistrate judge (“MJ”) considered on the record Banks’s ineffective
assistance claim involving his counsel’s purported failure to communicate the
two plea offers, also without holding an evidentiary hearing. See Cullen v.
Pinholster, 563 U.S. 170, 181 (2011) (noting that a federal district court’s
review of a § 2254 petition is limited to the record that was before the state



       1 Banks brought several other ineffective assistance of counsel claims before the state
court, none of which are at issue on appeal.
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                                  No. 15-30258
court that adjudicated the claim on the merits). The MJ noted that the state
court record did not indicate whether counsel communicated the offers to
Banks but declined to predict whether Banks would have pleaded guilty if he
had been aware of the offers. The MJ further observed that, when review is
governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
“review of the state court’s resolution of the ineffective assistance of counsel
claim is ‘doubly deferential’ . . . since the question is ‘whether the state court’s
application of the Strickland standard was unreasonable.’” See Pinholster, 563
U.S. at 190; Harrington v. Richter, 562 U.S. 86, 105 (2011). Under this analysis
the MJ reasoned that the issue on review was not whether Banks could show
prejudice but whether the state court’s determination that Banks suffered no
prejudice was unreasonable.       The MJ ultimately concluded, “Considering
[Banks’s] resolute proclamations of innocence at sentencing, throughout the
state court proceedings, and in the instant proceeding, the trial court’s decision
to reject [Banks’s] claim on the basis that he did not suffer prejudice was not
unreasonable.” Agreeing with the Report and Recommendation of the MJ, the
district court denied Banks’s § 2254 petition. Concluding that reasonable
jurists could debate the correctness of that determination, we granted Banks
a COA on the issue of ineffective assistance of counsel with respect to the
failure to communicate the two plea offers, and this appeal followed. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
                                 II.    Discussion
      On appeal, proceeding pro se and in forma pauperis, Banks argues that
the state habeas court’s adjudication of his claim was an unreasonable
application of Strickland in light of Missouri v. Frye, 566 U.S. 133 (2012).
Banks does not refute that he maintained his innocence during the proceedings
below but contends that the trial court should not have assumed that he would
not have accepted either of the deals, given that they were for far less than the
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                                  No. 15-30258
two consecutive life sentences he received. The State’s brief does not contain
a substantive discussion of the district court’s resolution of Banks’s § 2254
claim and does not address Banks’s argument on appeal.
       Here, the issue before us is whether the state court’s adjudication of
Banks’s ineffective assistance of counsel claim “was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1) & (2); see Harrington, 562 U.S. at 103
(holding that under AEDPA, a claim that a state court has denied on the merits
“is barred in federal court unless one of the exceptions to § 2254(d) set out in
§§ 2254(d)(1) and (2) applies”). To prevail on an ineffective assistance claim
under Strickland, a petitioner (1) “must show that counsel’s performance was
deficient,” and (2) “that the deficient performance prejudiced [him].” 466 U.S.
at 687. A failure to establish either prong is fatal to the claim. Id. When
Strickland and § 2254(d) are applied in tandem, the standard of review is
“doubly deferential.”     Pinholster, 563 U.S. at 190 (“We take a ‘highly
deferential’ look at counsel’s performance, Strickland, supra, . . . through the
‘deferential lens of § 2254(d)’. . . [.] [The defendant here] must demonstrate that
it was necessarily unreasonable for the [State] Supreme Court to conclude: (1)
that [the defendant’s attorney] had not overcome the strong presumption of
competence; and (2) that he had failed to undermine confidence in the jury’s
sentence of death.” (internal citations omitted)). It is pertinent to note that,
under Pinholster, “an unreasonable application of federal law is different from
an incorrect application of federal law.” Id. at 202. The question is not whether
the court of appeals might have reached a different conclusion but whether the
courts below unreasonably applied Supreme Court precedent in declining to
conclude that counsel’s performance established prejudice. Id. at 202–03.
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      “It is well established that a criminal defendant’s right to effective
assistance of counsel under the Sixth Amendment extends not just to trial or
sentencing but to ‘the negotiation of a plea bargain,’ as it ‘is a critical phase of
litigation for the purposes of the Sixth Amendment right to effective assistance
of counsel.’” United States v. Scribner, 832 F.3d 252, 257–58 (5th Cir. 2016)
(quoting Padilla v. Kentucky, 559 U.S. 356, 373 (2010)). Accordingly, the
Strickland test applies to Banks’s claim that his counsel was ineffective in
failing to communicate the two plea offers. See Frye, 566 U.S. at 145 (“[A]s a
general rule, defense counsel has the duty to communicate formal offers from
the prosecution to accept a plea on terms and conditions that may be favorable
to the accused.”). To establish that prejudice resulted from counsel’s failure to
communicate an offer, which is at issue here, a habeas petitioner must
demonstrate a reasonable probability that, but for counsel’s ineffective advice,
a plea would actually have been presented to the court; the court would have
accepted the terms of the plea; and “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 v. Cooper, 566 U.S. 156, 164 (2012).
      Under this circuit’s precedent, a defendant can make a showing of the
denial of a constitutional right regarding his claim that counsel was ineffective
for failing to communicate a plea offer. Teague v. Scott, 60 F.3d 1167, 1171
(5th Cir. 1995) (agreeing “that failing to inform the defendant of a plea offer
could amount to ineffective assistance of counsel”). The state court’s factual
finding that Banks would not have taken a plea deal if one had been conveyed
to him rested only on the court’s observation that Banks had persisted in his
claims of innocence throughout the proceedings.
      The Supreme Court, however, has held that a defendant’s repeated
declarations of innocence do not prove that he would not have accepted a guilty
plea because “(r)easons other than the fact that he is guilty may induce a
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defendant to so plead.” North Carolina v. Alford, 400 U.S. 25, 33 (1970). In
Alford, the Supreme Court noted the inherent conflict when a defendant claims
he is innocent yet nevertheless desires to accept a plea deal but went on to
observe that “[a]n individual accused of crime may voluntarily, knowingly, and
understandingly consent to the imposition of a prison sentence even if he is
unwilling or unable to admit his participation in the acts constituting the
crime.” Id. at 32. Significantly, the Supreme Court pointed out that it could
not “perceive any material difference between a plea that refuses to admit
commission of the criminal act and a plea containing a protestation of
innocence when . . . the record before the judge contains strong evidence of
actual guilt.” Id. 2
       Here, although Banks continued to attest to his innocence during the
state court proceedings, he urges that it would have been in his best interests
to accept either of the district attorney’s plea deals, given that they were for
far less prison time than the two consecutive life sentences he received. The
record reflects that, had Banks accepted the plea offer with the 10-year capped
sentence, he would be released in less than four years from now, in the spring
of 2021.




       2 Other courts have also held that a defendant’s declarations of innocence do not
establish that he would have not have accepted a guilty plea and do not prevent a defendant
from proving Strickland prejudice. See, e.g., Griffin v. United States, 330 F.3d 733, 738 (6th
Cir. 2003) ([“The defendant’s] repeated declarations of innocence do not prove, as the
government claims, that he would not have accepted a guilty plea. Defendants must claim
innocence right up to the point of accepting a guilty plea, or they would lose their ability to
make any deal with the government . . . [.] It therefore does not make sense to say that a
defendant’s protestations of innocence belie his later claim that he would have accepted a
guilty plea. Furthermore, a defendant must be entitled to maintain his innocence throughout
trial under the Fifth Amendment.” (internal citations omitted)); see also Lalani v. United
States, 315 F. App’x 858, 861 (11th Cir. 2009) (per curiam) (unpublished) (agreeing with the
Sixth Circuit’s analysis in Griffin).

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                                  No. 15-30258
      Nevertheless, the record before us does not conclusively indicate whether
Banks’s trial counsel actually communicated either of the two plea offers to
Banks. The record is devoid of any further information past the initial two
plea offers from the district attorney. There are no written correspondences,
memos, or affidavits from defense counsel or any state agent attesting that the
plea deals were communicated orally or in writing to Banks. See United States
v. Gonzales, 493 F. App’x 541, 544 (5th Cir. 2012) (per curiam) (unpublished)
(holding that “[the defendant’s] unsworn allegations cannot overcome the DEA
Agent’s sworn affidavit and other evidence proffered by the government” that
counsel informed him of the plea offer). Moreover, neither the state court, nor
the district court, concluded that an evidentiary hearing was warranted to
determine whether Banks’s trial counsel had in fact communicated either of
the plea offers to Banks. See Schriro v. Landrigan, 550 U.S. 465, 474 (2007)
(“[I]f the record refutes the applicant’s factual allegations or otherwise
precludes habeas relief, a district court is not required to hold an evidentiary
hearing.”). Additionally, the lower courts’ proffered reasons for denying habeas
relief, i.e., Banks’s continued claims of innocence, even when viewed through
the “doubly deferential” lens afforded under Strickland and AEDPA, appear to
be in conflict with the Supreme Court’s analysis in Alford. 400 U.S. at 33
(noting that “(r)easons other than the fact that he is guilty may induce a
defendant to so plead”).
      Accordingly, given the underdeveloped record before us, and the state
and district courts’ reasons for denying relief without a hearing, we conclude
that an evidentiary hearing on the issue is warranted.             See Rapelje v.
McClellan, 134 S. Ct. 399, 400 (2013) (“A federal evidentiary hearing is
permissible for a particular claim only if, among other requirements, the claim
was not adjudicated on the merits by a state court.” (internal quotation marks
omitted)); see also Arvelo v. Sec’y, Fla. Dep’t of Corrs., 788 F.3d 1345, 1348 (11th
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Cir. 2015) (“If the state court decision was contrary to clearly established
federal law, the federal courts are not necessarily limited to the state court
record; instead, we may hold an evidentiary hearing and consider new
evidence.”).
      In light of the lack of adequate record evidence before us, however, we
can offer no opinion on the merits of Banks’s ineffective assistance of counsel
claim.
                               III.   Conclusion
      For the foregoing reasons, we VACATE and REMAND for further
proceedings consistent with this opinion.




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