                 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 10a0623n.06

                                             No. 07-6272

                           UNITED STATES COURT OF APPEALS
                                FOR THE SIXTH CIRCUIT
                                                                                              FILED
                                                                                          Sep 22, 2010
PERRY FRANKS,                                           )                  LEONARD GREEN, Clerk
                                                        )
        Petitioner–Appellant,                           )
                                                        )
v.                                                      ) ON APPEAL FROM THE UNITED
                                                        ) STATES DISTRICT COURT FOR THE
CHERRY LINDAMOOD, Warden,                               ) MIDDLE DISTRICT OF TENNESSEE
                                                        )
        Respondent–Appellee.                            )
                                                        )


Before: MERRITT, MOORE, and GIBBONS, Circuit Judges.

        JULIA SMITH GIBBONS, Circuit Judge. Petitioner Perry Franks appeals the order of

the district court denying his petition for a writ of habeas corpus. Franks alleges that grant of the

writ is warranted because his trial counsel was constitutionally ineffective for failing to file a motion

to withdraw his plea of guilty after Franks requested that he do so. He argues that his attorney’s

failure to file should be presumed prejudicial under Roe v. Flores-Ortega, 528 U.S. 470 (2000). For

the following reasons, we affirm the district court’s denial of the writ.

                                                   I.

        On September 19, 2002, Franks turned himself in to the police on allegations that he had

sexually assaulted a taxi driver. Franks was charged with one count of aggravated rape and one

count of especially aggravated kidnapping. Franks v. State, No. M2004-00554-CCA-R3-PC, 2005

WL 351260, at *1 (Tenn. Crim. App. Feb. 9, 2005). The day before trial was to begin, Franks
No. 07-6272
Franks v. Lindamood

decided to enter a “best interest” plea under North Carolina v. Alford, 400 U.S. 25 (1970), in

exchange for concurrent fifteen-year sentences. Id. The plea agreement provided that the sentence

was to be served at “100%.”

          The Tennessee Court of Criminal Appeals further summarized the facts pertinent to this

appeal:

                  The Defendant now contends [on a petition for post-conviction relief] that his
          plea was marred by the ineffective assistance of counsel because his lawyer told him
          that he would be eligible for parole in eight years, and because his lawyer failed to
          file a motion to withdraw his guilty plea after being timely requested to do so by the
          Defendant.

                    ...

                  The Defendant testified at the post-conviction hearing that his lawyer told him
          that the State was offering him “15 years at 100 percent.” The Defendant claimed,
          however, that his attorney also told him that, if he took the offer, he would “come up
          for parole in eight years.” After the Defendant took the plea, he learned that the
          crimes to which he had pled required one hundred percent service, with no more than
          a 15% reduction for sentence credits.1 He called the Public Defender’s office where
          his lawyer worked and requested that his lawyer file a motion to withdraw his plea.
          The Defendant made this phone call within a few days of entering his plea.

                   A lawyer other than the one who was assigned to the Defendant’s case
          testified that he received the Defendant’s communication about moving to withdraw
          his plea, and forwarded the Defendant’s request to the assigned lawyer. The motion
          was never filed, however.

                  The testifying lawyer (“Counsel”) was also present with the Defendant
          immediately prior to and at the plea hearing. Counsel explained the plea to the
          Defendant and told him that the sentences to which he was agreeing had to be served
          at one hundred percent. Counsel




          1
              See Tenn. Code Ann. § 40-35-501(i).

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Franks v. Lindamood

               explained to [the Defendant] that 100 percent means 100 percent,
               subject to no more than 15 percent good time. Which meant . . . on
               a 15 [year sentence], I think we probably figured it out in the
               neighborhood of 13, 14 years . . . [that] [the Defendant] would have
               to serve, at a minimum, before he would be eligible for release.

              The trial court accredited Counsel’s testimony on this matter and found that
       the Defendant “was aware of the effects of a fifteen (15) year sentence and how much
       he would have to serve at the time that it was entered.” . . .

               With respect to the Public Defender’s failure to file a motion to withdraw the
       Defendant’s guilty plea, the trial court determined that the evidence of this failure
       was “uncontroverted.” However, the trial court further found that the Defendant
       suffered no prejudice thereby because he “presented no evidence that he would have
       been entitled to withdraw his plea agreement in this manner.” Accordingly, the trial
       court also refused to grant relief on the basis of this allegation.

Franks, 2005 WL 351260, at *1–3.

       After laying out the proper standard for evaluating a claim of ineffective assistance of counsel

under Strickland v. Washington, 466 U.S. 668 (1984), the Tennessee Court of Criminal Appeals

explained that, according to Tennessee Rule of Criminal Procedure 32(f), a trial court would have

granted a timely motion to withdraw the plea had it found that the plea was tainted by “manifest

injustice.” Franks, 2005 WL 351260, at *3. Tennessee courts have held that “manifest injustice”

can be established by a showing of, among other things, (1) “coercion, fraud, duress, or mistake,”

or (2) that the plea was “not voluntarily, understandingly, or knowingly entered.” See id. (quoting

State v. Peele, No. E2001-02825-CCA-RM-CD, 2002 WL 54691, at *2 (Tenn. Crim. App. Jan 16,

2002)). The court then cited several factual findings of the trial court that weighed against a finding

of manifest injustice:

       [T]he Defendant read and signed a guilty plea document that clearly stated that his
       sentences were “100%”; the trial court taking the plea repeatedly told the Defendant

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No. 07-6272
Franks v. Lindamood

       that his sentences were one hundred percent; and Counsel testified that, prior to the
       Defendant pleading, he explained to the Defendant the meaning of the one hundred
       percent service requirement.

Id. The court therefore concluded that Franks could not demonstrate any prejudice resulting from

his lawyer’s failure to file the motion to withdraw the plea because he could not demonstrate “any

likelihood that a motion to withdraw his plea would have been granted.” Id. The court never

reached an argument Franks had raised in his briefs, relying on Wallace v. State, 121 S.W.3d 652

(Tenn. 2003), that the failure to file a motion to withdraw the plea was per se prejudicial, thus

relieving him of his burden to show actual prejudice. Franks filed an application for permission to

appeal to the Tennessee Supreme Court, but it was denied on June 27, 2005.

       On March 6, 2006, Franks filed a petition for a writ of habeas corpus in the district court.

He again claimed, among other things, that his counsel provided constitutionally ineffective

assistance when he failed to file a motion to withdraw his plea. Franks specifically disclaimed any

assertion that his plea was “involuntarily or unintelligently entered in violation of the Due Process

Clause.” Contending that the only issue to decide was whether he suffered prejudice, Franks argued

that prejudice should be presumed under Roe v. Flores-Ortega, 528 U.S. 470 (2000), but even if

prejudice is not presumed that he suffered actual prejudice and should succeed on his claim anyway.

The district court denied the petition. Franks v. Lindamood, No. 1:06-0018, 2007 WL 3046357, at

*14 (M.D. Tenn. Oct. 15, 2007). It interpreted Flores-Ortega to require a showing of actual

prejudice even in cases where prejudice could be presumed and then found that Franks could show

no prejudice because his motion would not have been granted if it had been filed. Id. at *11. To

make this finding, the district court analyzed under prevailing law whether Franks was sufficiently

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Franks v. Lindamood

advised of his rights and of the direct consequences of his plea and determined, in accordance with

the Tennessee courts’ findings, that he was. Id. at *12–13.

       Franks now appeals the district court’s decision. His appeal is limited to the sole issue of

whether his counsel’s failure to file the motion to withdraw his plea constituted ineffective

assistance, and he requests only that this court allow him to file, nunc pro tunc, a motion to withdraw

his plea in the Tennessee state courts.

                                                  II.

       “We review de novo a district court’s determinations regarding a habeas petitioner’s claim

of ineffective assistance of counsel.” Mason v. Mitchell, 543 F.3d 766, 771 (6th Cir. 2008).

Moreover, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) governs all

habeas petitions filed after AEDPA’s effective date. See Lindh v. Murphy, 521 U.S. 320, 326–27,

(1997). AEDPA provides:

       An application for a writ of habeas corpus on behalf of a person in custody pursuant
       to the judgment of a State court shall not be granted with respect to any claim that
       was adjudicated on the merits in State court proceedings unless the adjudication of
       the claim—
       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme Court
       of the United States; or
       (2) resulted in a decision that 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).

       A state court adjudication is “contrary to” Supreme Court precedent under § 2254(d)(1) “if

the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question

of law,” or “if the state court confronts facts that are materially indistinguishable from a relevant

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No. 07-6272
Franks v. Lindamood

Supreme Court precedent” and arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405

(2000). A state court makes “an unreasonable application of” Supreme Court precedent under

§ 2254(d)(2) “if the state court identifies the correct governing legal rule from [the Supreme] Court’s

cases but unreasonably applies it to the facts of the particular . . . case,” or if the court unreasonably

extends or refuses to extend to new factual situations existing Supreme Court precedent. Id. at 407.

Under AEDPA, the question for this court to answer “is not whether a federal court believes the state

court’s determination was incorrect but whether that determination was unreasonable—a

substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007).

        However, where “the state court did not assess the merits of a claim properly raised in a

habeas petition, the deference due under AEDPA does not apply.” Maples v. Stegall, 340 F.3d 433,

436 (6th Cir. 2003) (citing Williams v. Coyle, 260 F.3d 684, 706 (6th Cir. 2001)). When AEDPA

deference does not apply, we apply the pre-ADEPA standard and review questions of law de novo

and questions of fact for clear error. Brown v. Smith, 551 F.3d 424, 430 (6th Cir. 2008); see also

Maples, 340 F.3d at 436.

                                                   III.

        The two prongs of an ineffective-assistance-of-counsel claim are familiar: Franks must show

his counsel’s performance was deficient, and that counsel’s deficiency caused him prejudice. “When

a convicted defendant complains of the ineffectiveness of counsel’s assistance, the defendant must

show that counsel’s representation fell below an objective standard of reasonableness.” Strickland

v. Washington, 466 U.S. 668, 687–88 (1984). Second, “[t]he defendant must show that there is a

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding

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No. 07-6272
Franks v. Lindamood

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694. As the only disputed issue is whether counsel’s failure to

file the motion to withdraw the plea was prejudicial to Franks, we will address that prong.

       In Hill v. Lockhart, the Supreme Court explained that “[i]n the context of guilty pleas . . .

[t]he second, or ‘prejudice,’ requirement . . . focuses on whether counsel’s constitutionally

ineffective performance affected the outcome of the plea process.” 474 U.S. 52, 58–59 (1985). A

defendant can raise an ineffective assistance claim when “during the judicial proceeding [the

defendant] was—either actually or constructively—denied the assistance of counsel altogether.”

Flores-Ortega, 528 U.S. at 483. We have recognized that although the standard Strickland test for

prejudice “provides guidance for resolving virtually all ineffective assistance of counsel claims, there

are ‘a few situations in which prejudice may be presumed.’” Mitchell v. Mason, 325 F.3d 732, 740

(6th Cir. 2003) (quoting Williams, 529 U.S. at 391).

       Before reaching this issue, we must address the level of deference due the state court’s

opinion. As noted above, AEDPA requires that we give deference to state court decisions on the

merits of claims properly raised in a habeas petition. However, if the state court does not address

an issue on the merits, then our review reverts back to the pre-AEDPA standard of de novo review

of issues of law. Maples, 340 F.3d at 436. A federal constitutional claim is considered properly

raised in the state courts even if the petitioner only cites to state court decisions. See Hannah v.

Conley, 49 F.3d 1193, 1196 (6th Cir. 1995) (“A petitioner ‘fairly presents’ his claim to the state

courts by citing a provision of the Constitution, federal decisions using constitutional analysis, or



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Franks v. Lindamood

state decisions employing constitutional analysis in similar fact patterns.” (quoting Levine v. Torvik,

986 F.2d 1506, 1516 (6th Cir. 1993))).

        In his post-conviction brief to the Tennessee Court of Criminal Appeals, Franks did in fact

raise the same argument he raises here. He cited to Wallace v. State, 121 S.W.3d 652 (Tenn. 2003),

which analyzed Flores-Ortega and held that prejudice could be presumed when an attorney fails to

file a motion for a new trial, so long as the petitioner can show that “but for the deficient

representation of counsel, a motion for a new trial would have been filed.” Id. at 659. Franks argued

to the Tennessee court, as he does here, that “counsel’s failure to timely file a motion to set aside his

plea upon timely request likewise constitutes per se ineffective assistance of counsel.” However, the

Tennessee Court of Criminal Appeals never reached this issue. Nowhere in its decision does it

mention the concept of presumed prejudice, as it limited its analysis of Franks’s claims to whether

he was able to show actual prejudice. See Franks, 2005 WL 351260. Therefore, we will review de

novo Franks’s claim that prejudice should be presumed.

                                                   A.

        In United States v. Cronic, in discussing competent legal representation, the Supreme Court

wrote, “There are, however, circumstances that are so likely to prejudice the accused that the cost

of litigating their effect in a particular case is unjustified.” 466 U.S. 648, 658 (1984). In these

circumstances, “[n]o specific showing of prejudice [is] required,” because “the adversary process

itself [is] presumptively unreliable.” Id. at 659. The Court identified several of these circumstances,

including



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       the complete denial of counsel, . . . if counsel entirely fails to subject the
       prosecution’s case to meaningful adversarial testing, . . . [or] some occasions when
       although counsel is available to assist the accused during trial, the likelihood that any
       lawyer, even a fully competent one, could provide effective assistance is so small that
       a presumption of prejudice is appropriate without inquiry into the actual conduct of
       trial.

Id. at 659–60.

       The Court extended this reasoning in Flores-Ortega, where “counsel’s deficient performance

has deprived [the defendant] of more than a fair judicial proceeding; that deficiency deprived [the

defendant] of the appellate proceeding altogether.” 528 U.S. at 483. In Flores-Ortega, the defendant

entered a plea of guilty to second-degree murder. Id. at 473. When defense counsel failed to file a

notice of appeal and the applicable limitations period ran before the defendant attempted to do so

pro se, the defendant brought a habeas petition alleging that counsel’s ineffective assistance deprived

him of an appeal. Id. The Court concluded that, just as in Cronic, “[t]he even more serious denial

of the entire judicial proceeding itself, which a defendant wanted at the time and to which he had a

right, similarly demands a presumption of prejudice.” Id. at 483. The rule of presumed prejudice

is not “per se prejudice,” however; that is, habeas relief is not appropriate “solely upon a showing

that counsel had performed deficiently.” Id. at 484. Rather, the defendant must also “demonstrate

that, but for counsel’s deficient performance, he would have appealed.” Id. In Flores-Ortega, the

Court held that it could not determine whether the defendant had conveyed his wishes to appeal to

his attorney and therefore remanded the case for further consideration. Id. at 487.




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No. 07-6272
Franks v. Lindamood

        Franks argues that this court should extend the reasoning in Flores-Ortega from an attorney’s

failure to file a notice of appeal to an attorney’s failure to file a motion to withdraw his plea.2 We

decline to do so. The critical distinction lies in the fact that Flores-Ortega allowed courts to presume

prejudice in situations where the defendant wanted counsel to pursue a proceeding “to which he had

a right.” Id. at 483 (emphasis added). As is always the case, Tennessee’s criminal defendants have

available to them one appeal as of right from a conviction. Tenn. R. App. P. 3(b). Defendants

initiate this appeal by filing a notice of appeal within thirty days. Tenn. R. App. P. 4(a). Defendants’

right to an appeal is, in fact, even stronger in Tennessee than in the federal system, as a failure to file

a notice of appeal in Tennessee does not deprive appellate courts of jurisdiction to hear the appeal.

Tenn. R. App. P. 4(a). As the Supreme Court held in Flores-Ortega, therefore, counsel’s failure to

file a notice of appeal deprives a criminal defendant of a proceeding to which he was necessarily

entitled, thus presumptively prejudicing the defendant regardless of the likely outcome of the appeal.

Thus, counsel essentially has a duty to file the notice of appeal if asked.

        By contrast, a defendant has no right to have his attorney carry out every other request he

makes, without regard to whether the request is meritless or frivolous. Such requests certainly

include a motion to withdraw a plea, which are disfavored in federal courts, even when made before

a sentence is imposed. See United States v. Peck, 56 F.3d 65, 1995 WL 313724, at *3 (6th Cir.


        2
         Flores-Ortega held that the failure to file a notice of appeal is not per se prejudicial. 528
U.S. at 484. Rather, the case allows courts to presume prejudice—that is, without a showing of
actual prejudice—if the defendant can show that he would have pursued an appeal absent counsel’s
deficient performance. Id. at 483–84. Despite this being a critical factual issue in many cases
applying Flores-Ortega, we need not reach it here because this case can be decided solely on whether
Flores-Ortega should be extended to the motion-to-withdraw-a-plea context.

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No. 07-6272
Franks v. Lindamood

1995) (unpublished table decision) (“Even pre-sentence requests for withdrawal are disfavored,

however, when the defendant waits to withdraw a plea until after notification of an actual sentence.”

(citing United States v. Watley, 987 F.2d 841, 848 (D.C. Cir. 1993))). The Supreme Court was

willing to extend the presumed prejudice doctrine in Flores-Ortega because defendants have a right

to have a notice of appeal filed on their behalf. Where, as in this case, the defendant is not

necessarily entitled to have filed the motion he requests, there is no basis for us to extend Flores-

Ortega and presume counsel’s failure to file the motion was prejudicial.

                                                   B.

        Because we will not presume prejudice from counsel’s failure to file a motion to withdraw

Franks’s plea, we must still decide whether Franks suffered actual prejudice. Because the Tennessee

Court of Criminal Appeals decided this issue on the merits, full AEDPA deference applies. The state

court found that Franks “failed to demonstrate any likelihood that a motion to withdraw his plea

would have been granted, and therefore failed to demonstrate any prejudice resulting from his

lawyer’s failure to [do the] same.” Franks, 2005 WL 351260, at *3. We find this conclusion to be

entirely reasonable. The weight of the evidence in the record suggests that Franks was properly

advised of the consequences of his plea. Franks only offers his own assertion that he believed he

would be eligible for parole in eight years. Furthermore, as the district court pointed out, this circuit

has held that eligibility for parole is not a pertinent consequence of a plea of which a defendant must

be informed. See Brown v. Perini, 718 F.2d 784, 788 (6th Cir. 1983). Although this decision does

not bear on whether Franks’s motion would have been granted under state law, it does support our

finding that the Tennessee court’s decision was reasonable.

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No. 07-6272
Franks v. Lindamood

        Franks argues that the Tennessee courts applied an incorrect standard in deciding whether

he suffered prejudice. The Tennessee Court of Criminal Appeals wrote that a motion to withdraw

a plea of guilty must be decided under a “manifest injustice” standard. Franks, 2005 WL 351260,

at *3 (citing Tenn. R. Crim. P. 32(f)). Franks argues, however, that the manifest injustice standard

only defines when a court must grant a motion to withdraw a plea; he argues that Tennessee courts

have discretion to grant such a motion under other circumstances. First, as a preliminary matter, “it

is not the province of a federal habeas court to reexamine state-court determinations on state-law

questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991). Although an exception to the rule does

exist if the errors “rise for some other reason to the level of a denial of rights protected by the United

States Constitution,” Barclay v. Florida, 463 U.S. 939, 957–58 (1983), Franks has alleged no other

reason here, and none are immediately evident. Second, Franks overreads the case he claims

establishes this “two-level gateway to relief.” He cites State v. Crowe, 168 S.W.3d 731 (Tenn.

2005), as allowing withdrawal of a plea subject to the trial court’s discretion if a defendant can

merely show a “misunderstanding as to [the plea’s] effect.” Id. at 742–43. But Crowe did not do

what Franks claims; the passage Franks quotes in his brief merely recites the same standard as the

Peele case that the Tennessee Court of Criminal Appeals quoted in its decision, albeit using slightly

different language. Although Franks cites a few favorable cases that suggest his motion may have

had some success had it been filed, see State v. Haynes, 696 S.W.2d 26 (Tenn. Crim. App. 1985),

and State v. Harris, C.C.A. No. 103, 1989 WL 119448 (Tenn. Crim. App. Oct. 11, 1989), they do

not show the Tennessee court’s decision was unreasonable. We hold that Franks has failed to

establish the prejudice prong of the Strickland standard.

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Franks v. Lindamood

                                                    IV.

          For the foregoing reasons, we affirm the district court’s denial of Franks’s petition for habeas

corpus.




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