                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                         April 29, 2019

                                                                         Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                            Clerk of Court
                        _________________________________

 ANTONIO DEANDRE SMITH,

       Petitioner - Appellant,

 v.                                                          No. 17-5095

 JOE M. ALLBAUGH, Director,

       Respondent - Appellee.
                      _________________________________

                     Appeal from the United States District Court
                       for the Northern District of Oklahoma
                       (D.C. No. 4:15-CV-00445-GKF-FHM)
                       _________________________________

John T. Carlson, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Petitioner-Appellant.

Ashley L. Willis, Assistant Attorney General (Mike Hunter, Attorney General of
Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-Appellee.
                        _________________________________

Before McHUGH, MORITZ, and EID, Circuit Judges.
                 _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Antonio Smith appeals the district court’s order denying his 28 U.S.C. § 2254

petition. For the reasons discussed below, we reverse the district court’s order and

remand for further proceedings.
                                    Background1

              Smith pleaded guilty in Oklahoma state court to drug trafficking,
      possessing a firearm as a felon, and a variety of related charges. Smith’s
      habeas claims center around a plea offer that one of Smith’s attorneys
      allegedly didn’t communicate to him. Essentially, Smith says that he
      rejected a plea offer from the state that his first attorney presented to
      him, under which Smith would serve 25 years in prison. Smith’s first
      attorney subsequently withdrew[,] and the sentencing court appointed a
      new attorney to represent him. Smith says that his second attorney told
      him shortly after she was appointed that the state had withdrawn an
      offer for a 20-year sentence. But Smith told his second attorney that his
      first attorney never communicated a 20-year offer to him.
              On the day his case was set to go to trial, Smith pleaded guilty
      without the benefit of a plea agreement. During the plea hearing, the
      state told the court that Smith had rejected its offer for a 20-year
      sentence. When the sentencing court asked Smith’s second attorney if
      the state’s recollection of its prior offer coincided with her own, Smith’s
      second attorney responded, “Yes, it does.” R. 20. But when the court
      more specifically asked Smith’s second attorney if she discussed the 20-
      year offer with Smith, she equivocated and responded, “We discussed
      recommendations; we discussed counter-offers; I conveyed counter-
      offers. Those were rejected.” Id.
              It’s not clear from this vague response whether Smith’s second
      attorney meant to convey to the court that Smith was presented with and
      rejected the 20-year offer. But it is clear that she didn’t tell the court
      about Smith’s assertion that his first attorney never communicated such
      an offer to him. Nor did she mention that she didn’t represent Smith
      when plea bargaining began, despite her representation to the court that
      she discussed prior offers with Smith. And adding to this confusion,
      Smith’s first attorney told the Oklahoma Bar Association that—contrary
      to what the state told the sentencing court—the lowest sentence the state
      ever offered Smith was 25 years. So it’s not clear from the record what
      offer the state actually made and what offer Smith actually rejected.
               The sentencing court ultimately sentenced Smith to 30 years in
      prison. Smith neither sought to withdraw his plea nor appealed within
      the 10 days in which Oklahoma allowed him to do so. See Okla. R.
      Crim. App. 2.1(B), 4.2(A). But more than seven months later, Smith


      1
        We take these facts from our earlier order granting Smith a certificate of
appealability (COA). See § 2253(c)(1)(A); Order, Smith v. Allgbaugh, No. 17-5095,
(10th Cir. Feb. 6, 2018).
                                          2
filed an application for post-conviction relief in state district court,
requesting an appeal out of time.
        In that application, Smith alleged that both his attorneys were
constitutionally ineffective—his first attorney for failing to accurately
communicate a favorable plea offer, and his second attorney for failing
to alert the sentencing court to that issue. Smith further alleged that his
second attorney never advised him that he had meritorious grounds to
appeal his conviction. The state district court denied Smith’s motion
because Smith didn’t take any steps in the 10 days following his plea to
withdraw the plea or appeal. See Okla. R. Crim. App. 2.1(B), 4.2(A). It
further found that Smith hadn’t shown he failed to appeal or to move to
withdraw his plea through no fault of his own. See Okla. R. Crim. App.
2.1(E)(1) (“A petitioner’s right to appeal [out-of-time] is dependent
upon the ability to prove he/she was denied an appeal through no fault
of his/her own.”).
        Smith appealed to the Oklahoma Court of Criminal Appeals
(OCCA), which likewise concluded that Smith hadn’t established that
his failure to appeal was through no fault of his own. See id.
Specifically, the OCCA explained that Smith “knew about the [20-year]
plea offer, and heard his counsel state that it had been rejected, before
he entered his plea of guilty” but nevertheless “voluntarily entered his
plea of guilty, and did not elect to initiate appeal proceedings.” R. 130.
In other words, the OCCA apparently concluded that it was Smith’s
fault he didn’t appeal because he knew the factual basis for his appeal
during the 10 days following his sentence. It therefore denied his
application for an appeal out-of-time. And without an appeal out-of-
time, the OCCA couldn’t reach his claims that his attorneys were
ineffective. See Logan v. State, 293 P.3d 969, 973 (Okla. Crim. App.
2013) (explaining that “issues that were not raised previously on direct
appeal, but which could have been raised, are waived for [post-
conviction] review” (citing Okla. Stat. Ann. tit. 22, § 1086)).
        Smith then filed the instant petition in federal district court.
Smith’s original petition only asserted two grounds for relief:
ineffective assistance [of counsel (IAC)] by his first attorney for failing
to accurately communicate the state’s 20-year plea offer, and [IAC] by
his second attorney for failing to alert the court to the first attorney’s
error. More than 17 months later, Smith filed a motion to supplement
his petition, alleging that his second attorney had also been
constitutionally ineffective in failing to advise him to appeal and move
to withdraw his plea.
        The district court treated Smith’s motion [to supplement] as a
motion to amend; determined that Smith’s new [IAC] claim didn’t relate
back to the initial filing date; and concluded that the claim was therefore

                                    3
       untimely under [§ 2244(d)(1)]. See Fed. R. Civ. P. 15(c). It further ruled
       that Smith’s two timely [IAC] claims were procedurally defaulted
       because the OCCA denied them on independent and adequate state
       procedural grounds—i.e., that Smith neither (1) timely appealed or
       sought to withdraw his plea; nor (2) demonstrated that he failed to do so
       through no fault of his own. See Banks v. Workman, 692 F.3d 1133,
       1144 (10th Cir. 2012) (explaining that constitutional claims rejected by
       state court on independent and adequate state procedural grounds are
       normally barred from habeas review in federal court). The district court
       also concluded that Smith hadn’t shown cause and prejudice to excuse
       this procedural default. See Magar v. Parker, 490 F.3d 816, 819 (10th
       Cir. 2007) (explaining that § 2254 petitioner can overcome procedural
       default by showing “cause for the default and actual prejudice” (quoting
       Bland v. Sirmons, 459 F.3d 999, 1012 (10th Cir. 2006))). In doing so,
       the district court deferred to the OCCA’s factual conclusions that Smith
       knew about the 20-year plea deal during the time he had to appeal and
       move to withdraw his plea but nevertheless failed to do so. Thus, the
       district court denied Smith’s petition.

       Order at 1-5, Smith, No. 17-5095.


       After the district court denied Smith’s motion, we declined to grant Smith’s

request for a COA to appeal the portion of the district court’s order treating as

untimely the IAC claim he raised in his motion to supplement. See § 2253(c)(1)(A).

But we did grant Smith a COA to appeal the portions of the district court’s order

denying relief on his two timely IAC claims.

                                        Analysis

       Smith’s habeas petition advances three overlapping and layered IAC claims.

For ease of reference, we refer to these claims numerically, in the order in which the

actions giving rise to them allegedly occurred. Smith asserts that (1) his first attorney

failed to communicate a favorable 20-year plea offer to him (the First IAC Claim);

(2) his second attorney failed to alert the sentencing court to the first attorney’s

                                            4
failure to communicate the 20-year plea offer (the Second IAC Claim); and (3) his

second attorney failed to advise him to pursue an appeal or to withdraw his plea

based on the first attorney’s alleged ineffectiveness (the Third IAC Claim).

      The district court ruled that the Third IAC Claim was untimely—a ruling that

isn’t before us. But its rulings related to the First and Second IAC Claims are before

us: the district court declined to reach the merits of these claims because it concluded

that (1) the claims were procedurally defaulted and (2) Smith failed to show cause to

excuse the default. We need not and do not address the first part of the district court’s

ruling to resolve this appeal. Instead, we begin by assuming that the First and Second

IAC Claims are procedurally defaulted and proceed to consider whether Smith has

shown cause and prejudice sufficient to overcome that default.

      In answering that question, we begin by detailing the cause-and-prejudice

standard and applying it to this case, a process that includes addressing and

incorporating substantive IAC principles. We ultimately conclude that because Smith

demonstrates cause and prejudice to excuse any procedural default, the district court

erred in failing to address the merits of the First and Second IAC Claims. But

because we determine that a critical factual conflict prevents us from resolving the

merits of these claims in the first instance, we remand to the district court for an

evidentiary hearing.

I.    Cause and Prejudice to Excuse Procedural Default

      The procedural-default rule generally prevents a federal court from reviewing

a habeas claim when the state court declined to consider the merits of that claim

                                            5
based “on independent and adequate state procedural grounds.” Maples v. Thomas,

565 U.S. 266, 280 (2012) (quoting Walker v. Martin, 562 U.S. 307, 316 (2011)).

Here, for instance, we’ve assumed that Smith procedurally defaulted the First and

Second IAC Claims by failing to bring those claims in a timely direct appeal.2 See

Banks, 692 F.3d at 1144 (explaining that procedural default occurs when “state court

dismisses federal [habeas] claim on the basis of noncompliance with adequate and

independent state procedural rules”). But a court may excuse a procedural default “if

a petitioner can ‘demonstrate cause for the default and actual prejudice as a result of

the alleged violation of federal law.’” Magar, 490 F.3d at 819 (quoting Bland, 459

F.3d at 1012). Smith argues that he can show both cause and prejudice here.

      A.     Cause

      Smith first argues that the Third IAC Claim establishes the cause required to

overcome any procedural default of the First and Second IAC Claims. “Cause for a

procedural default exists where ‘something external to the petitioner, something that

cannot fairly be attributed to him[,] . . . impeded [his] efforts to comply with the

[s]tate’s procedural rule.’” Maples, 565 U.S. at 280 (first two alterations in original)


      2
         The OCCA expressly refused to grant Smith an out-of-time direct appeal,
thereby declining to reach the merits of the First and Second IAC Claims in such an
appeal. See Okla. R. Crim. App. 2.1(E)(1) (governing when defendant may pursue
out-of-time appeal). The OCCA also, albeit implicitly, refused to consider the merits
of these two IAC claims in Smith’s postconviction proceeding. See Logan, 293 P.3d
at 973 (providing that in postconviction proceeding, “issues that were not raised
previously on direct appeal, but which could have been raised, are waived”). At the
heart of both conclusions is that the OCCA declined to consider the merits of Smith’s
IAC claims because Smith failed to raise them in a timely direct appeal. See Okla. R.
Crim. App. 2.1(B), 4.2(A).
                                            6
(quoting Coleman v. Thompson, 501 U.S. 722, 753 (1991)). And an attorney’s

constitutionally deficient performance constitutes cause when it’s an external factor

behind a petitioner’s failure to comply with state procedural rules. See Davila v.

Davis, 137 S. Ct. 2058, 2065 (2017). An attorney’s performance is constitutionally

deficient if a defendant can show both that the attorney performed deficiently (i.e.,

“that counsel’s representation fell below an objective standard of reasonableness”)

and that the deficient performance caused prejudice (i.e., “there is a reasonable

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

would have been different”). Strickland v. Washington, 466 U.S. 668, 687–88, 694

(1984). Thus, to demonstrate that the Third IAC Claim constitutes cause to overcome

the procedural default, Smith must demonstrate that (1) his second attorney

performed deficiently in failing to consult with him about an appeal and (2) but for

this deficient performance, there exists a reasonable probability that Smith would

have appealed. See Roe v. Flores-Ortega, 528 U.S. 470, 476–77 (2000) (explaining

how Strickland test for IAC operates in context of failure-to-consult claims).

      But before analyzing whether Smith can show deficient performance and

resulting prejudice, we first address and reject the state’s threshold arguments that

the Third IAC Claim can’t constitute cause because it’s unexhausted and untimely.

      The state accurately points out that when a petitioner relies on an IAC claim to

establish cause to overcome a procedural default, the petitioner must first exhaust

that IAC claim in state court. See Edwards v. Carpenter, 529 U.S. 446, 452 (2000)

(holding that IAC claim must be presented to state court as independent claim before

                                           7
it can be used to establish cause for procedural default). And according to the state,

Smith failed to exhaust the Third IAC Claim.

      We disagree. A claim is exhausted so long as it “was ‘presented’ to the state

courts.” Id. (quoting Murray v. Carrier, 477 U.S. 478, 489 (1986)). And when giving

Smith’s pro se state-court pleadings the liberal construction they warrant, see Fogle

v. Pierson, 435 F.3d 1252, 1262 (10th Cir. 2006), it’s clear that Smith presented the

Third IAC Claim to the relevant state court. Indeed, the first ground in Smith’s

application to the OCCA for postconviction relief stated that “[a]s a result of not

being timely [and] properly informed o[f] [his other IAC claims], [Smith] also wasn’t

able to make an informed decision as to whether or not [he] should appeal the case.”

R. 122. We need not read Smith’s pro se pleadings all that liberally to conclude that

he presented the Third IAC Claim, alleging failure to consult about an appeal, to the

OCCA. See Edwards, 529 U.S. at 452. Thus, we reject the state’s argument that

Smith failed to exhaust the Third IAC Claim.

      The state also suggests that the Third IAC Claim doesn’t establish cause

because it was untimely. As we stated in our COA order, we agree that this claim was

untimely. See Order at 15–16, Smith, No. 17-5095. But we fail to see how that

untimeliness impacts the cause-and-prejudice analysis. And the state offers us no

assistance on this point. Although it describes the Third IAC Claim as “untimely”

and “time-barred,” it cites no on-point authority to support its implicit suggestion that

an untimely IAC claim—though admittedly barred as a standalone basis for relief—



                                           8
can’t serve as cause to overcome a procedural bar on other timely claims. Aplee. Br.

30. Nor have we found any. As such, we find this argument unpersuasive.

      Having rejected the state’s threshold objections, we now turn to whether the

Third IAC Claim provides cause to excuse Smith’s procedural default. In this claim,

Smith alleges that his second attorney’s failure to consult with him about filing an

appeal or withdrawing his plea amounts to constitutionally deficient performance. To

make that showing, he must demonstrate both deficient performance and resulting

prejudice. See Flores-Ortega, 528 U.S. at 476–77. We consider each prong in turn.

      An attorney has “a constitutionally imposed duty to consult with” a convicted

defendant “about an appeal when there is reason to think . . . that a rational defendant

would want to appeal.” Id. at 480. One reason a rational defendant might want to

appeal is if “there are nonfrivolous grounds for” doing so. Id.

      Critically, in determining whether a rational defendant would want to appeal,

“courts must take into account all the information counsel knew or should have

known.” Id. Here, Smith contends that his second attorney had a duty to consult with

him about an appeal because the second attorney knew or should have known about a

nonfrivolous ground for appeal—namely, that Smith’s first attorney was ineffective

in failing to communicate a 20-year plea offer to him. See Missouri v. Frye, 566 U.S.

134, 145–46 (2012) (noting that counsel performs deficiently if he or she fails to

communicate plea offer to client and that prejudice results if, among other things,

defendant would have accepted offer and offer was more favorable result for

defendant). Notably, the state doesn’t dispute that an attorney’s alleged failure to

                                           9
communicate a plea offer is a nonfrivolous issue. But the state nevertheless argues

that the second attorney had no duty to consult with Smith about an appeal. That’s

because, according to the state, the second attorney didn’t know and or have reason

to know about this nonfrivolous issue. See Flores-Ortega, 528 U.S. at 480 (noting

that when determining whether rational defendant would want to appeal based on

nonfrivolous claim on appeal, court must consider “all the information counsel knew

or should have known”).

      But the record is not as clear as the state would have it. It does include a letter

from the second attorney in which she tells Smith that she was “not privy” to any

plea offers the state made through Smith’s first attorney. R. 87. But the record also

includes the sentencing transcript, in which (1) the prosecutor told the court that the

state offered Smith a 20-year plea deal and (2) the second attorney told the court that

a 20-year offer “at least coincide[d] with [her] memory of the recommendations.” Id.

at 20. So from the transcript alone, it’s clear that Smith’s second attorney knew or

should have known about the possible existence of a 20-year plea offer. Further,

Smith alleges in his habeas petition that he told his second attorney that his first

attorney failed to inform him of this 20-year offer. Assuming that to be true, the

second attorney knew or at least should have known about a nonfrivolous ground for

appeal. See Flores-Ortega, 528 U.S. at 480; Williams v. Kaiser, 323 U.S. 471, 473–

74 (1945) (noting that when lower court denies habeas petition “without giving

petitioner an opportunity to prove his allegations,” appellate court “must assume that

the allegations of the petition are true”). Thus, we reject the state’s argument that the

                                           10
second attorney didn’t have a duty to consult with Smith about an appeal because she

didn’t know or have reason to know that a rational defendant would want to appeal.

      The state also notes that Smith himself learned about the 20-year plea offer

during the sentencing hearing, when the prosecutor described that offer. According to

the state, this means Smith can’t show his procedural default (that is, his failure to

pursue the First and Second IAC Claims on direct appeal) was caused by an external

factor. In support, the state cites Klein v. Neal, 45 F.3d 1395 (10th Cir. 1999), for the

unremarkable position that a lack of formal legal training is insufficient to establish

cause. But Smith doesn’t argue that his ignorance alone establishes cause. Instead, he

argues that to the extent he was ignorant of the legal basis for an appeal, his

ignorance was the direct result of his second attorney’s constitutionally deficient

failure to consult with him about that basis. And that’s a distinction with a difference.

Cf. Dulin v. Cook, 957 F.2d 758, 760 (10th Cir. 1992) (distinguishing between

(1) “basic ignorance of the rules or the law” and (2) “lack of [legal] knowledge”

stemming from lack of “access to an attorney” for purposes of cause-and-prejudice

test). As such, the state’s point about the facts Smith was aware of simply isn’t

relevant to the cause inquiry.

      To summarize, a rational defendant would have wanted to appeal because there

was a nonfrivolous issue to raise in that appeal. See Flores-Ortega, 528 U.S. at 480.

And because Smith’s second attorney knew or should have known about this

nonfrivolous issue, she had a duty to consult with Smith about an appeal. See id. Her

failure to do so constitutes deficient performance. See id.; Heard v. Addison, 728

                                           11
F.3d 1170, 1187 (10th Cir. 2013) (finding deficient performance where counsel failed

to consult defendant about appeal despite “obvious, nonfrivolous grounds for

appeal”).

       Of course, to make out a meritorious IAC claim that establishes cause to

excuse any procedural default, Smith must show more than deficient performance; he

must show constitutionally deficient performance. See Davila, 137 S. Ct. at 2065 (“It

has long been the rule that attorney error is an objective external factor providing

cause for excusing a procedural default only if that error amounted to a deprivation of

the constitutional right to counsel.”). As such, we move to the second prong of the

IAC analysis and consider whether the deficient failure of Smith’s second attorney to

consult with him about an appeal caused him prejudice. See United States v. Horey,

333 F.3d 1185, 1187 (2003) (noting that to succeed on IAC claim, petitioner must

satisfy both Strickland’s deficient-performance prong and its prejudice prong).

       Prejudice in the failure-to-consult context requires a defendant to show “there

is a reasonable probability that, but for counsel’s deficient failure to consult . . .

about an appeal, [the defendant] would have timely appealed.” Flores-Ortega, 528

U.S. at 484. To make this showing, a defendant may point to “evidence that there

were nonfrivolous grounds for appeal.” Id. at 485; see also id. at 485–86

(acknowledging that nonfrivolousness is factor in both deficient-performance and

prejudice prongs of failure-to-consult claim).

       Here, for the reasons already discussed above, the first attorney’s alleged

failure to communicate a plea offer to Smith is a nonfrivolous issue that the second

                                             12
attorney knew or at least should have known about. See Frye, 566 U.S. at 145. As

such (and in the absence of any meaningful counterargument from the state on the

prejudice prong), we find that there’s a reasonable probability that but for the second

attorney’s failure to consult about an appeal, Smith would have appealed. See Heard,

728 F.3d at 1187 (finding defendant was prejudiced by counsel’s failure to consult

about appeal on “obvious, nonfrivolous” issues). Thus, we conclude that Smith’s

second attorney rendered constitutionally ineffective assistance when she failed to

consult with Smith about an appeal. See Davila, 137 S. Ct. at 2065.

      Accordingly, Smith’s Third IAC Claim constitutes cause to excuse any

procedural default of the First and Second IAC Claims, both of which could have

been brought in the appeal that Smith was deprived of by his second attorney’s

ineffectiveness.

      B.     Prejudice

      Having established cause, Smith next argues that he can show prejudice.

Critically, in this context, prejudice doesn’t refer to the prejudice arising from

Smith’s second attorney’s failure to consult with him about an appeal. Instead, it

means prejudice arising “from the errors” that form the basis of Smith’s substantive

claims (here, the First and Second IAC Claims). United States v. Frady, 456 U.S.

152, 167–68 (1982). And because Smith’s substantive claims are also IAC claims,

the test for determining whether the errors that form the basis of those claims caused

him prejudice mirrors the prejudice prong of the Strickland test. See id. at 169

(noting that prejudice for purposes of cause-and-prejudice analysis depends on type

                                           13
of claim at issue; finding allegedly erroneous jury instructions caused no prejudice);

Banks v. Reynolds, 54 F.3d 1508, 1516 (10th Cir. 1995) (treating prejudice prong of

Strickland test as equivalent to prejudice prong of cause-and-prejudice analysis); cf.

Strickler v. Greene, 527 U.S. 263, 282 (1999) (considering prejudice prong of

underlying constitutional violation as coextensive with prejudice prong of cause-and-

prejudice standard). That is, Smith must show (for both the First and Second IAC

Claims) “a reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Strickland, 466 U.S. at 694. We

consider each claim in turn.

      In the First IAC Claim, Smith alleges that his first attorney deficiently failed to

convey a 20-year plea offer to him. See Frye, 566 U.S. at 145 (noting that counsel

performs deficiently if he or she fails to fulfill “duty to communicate formal [plea]

offers from the prosecution”).3 In this context, prejudice results from such deficient

performance if there’s a reasonable probability that, but for counsel’s failure to

convey the offer, (1) the defendant would have accepted it; (2) the state would not

have withdrawn or cancelled the offer; (3) the court would have accepted the plea;

and (4) the plea would have led to a more favorable result for the defendant. See id.

at 147.



      3
        At this stage of the proceedings and in the context of the prejudice prong of
the cause-and-prejudice analysis, we assume Smith’s factual allegations are true. See
Williams, 323 U.S. at 473–74 (noting that when lower court denies habeas petition
“without giving petitioner an opportunity to prove his allegations,” appellate court
“must assume that the allegations of the petition are true”).
                                           14
       Here, Smith satisfies these four requirements. As an initial matter, although he

rejected the 25-year offer that his first attorney conveyed to him, he explained in his

brief in support of his § 2254 petition that he would have accepted a 20-year offer

because “[a] 20[-]year sentence would have allowed [him] to make [p]arole in time to

attend his son’s graduation.” R. 42. Further, there’s nothing in the record to indicate

the state would have withdrawn or canceled the offer. Likewise, we see nothing in

the record to suggest that the sentencing court wouldn’t have accepted such a plea.

Finally, a 20-year sentence is obviously more favorable than the 30-year sentence

Smith received. Thus, Smith has established a reasonable probability that had his first

attorney conveyed the 20-year plea offer to him, the result of the proceeding would

have been different. See Frye, 566 U.S. at 147. We therefore conclude that for the

First IAC Claim, Smith has established both cause and prejudice to excuse any

procedural default.

       The same is true for Smith’s Second IAC Claim. In that claim, Smith alleges

that his second attorney deficiently failed to alert the sentencing court to the first

attorney’s failure to convey the 20-year plea to Smith. Assuming the truth of this

deficient-performance assertion, the Second IAC Claim likewise resulted in prejudice

to Smith. See Williams, 323 U.S. at 473–74. That’s because if the second attorney

had alerted the sentencing court to the alleged error, there’s a reasonable probability

that the sentencing court would have remedied the error of Smith’s first attorney by

sentencing Smith to 20 years. Cf. Jiminez v. State, 144 P.3d 903, 907 (Okla. Crim.

App. 2006) (remedying attorney’s failure to timely communicate plea offer by

                                            15
modifying defendant’s sentence to match lapsed offer). Thus, we conclude that Smith

has shown cause and prejudice to excuse any procedural default of the Second IAC

Claim.

II.   Evidentiary Hearing

      Because Smith has established cause and prejudice sufficient to overcome any

procedural default, a “federal habeas court will consider the merits of” the First and

Second IAC Claims. Edwards, 529 U.S. at 451. But we will not be that court.

Instead, we agree with Smith that a critical factual conflict exists in the record that

requires us to remand for an evidentiary hearing. Cf. Milton v. Miller, 744 F.3d 660,

673 (10th Cir. 2014) (remanding for evidentiary hearing because “disputed issues of

fact exist[ed] that preclude[d] us from completing our own de novo review” of

petitioner’s IAC claim). The state agrees that if we find a conflict in the record,

remand is the proper remedy. But it argues that there isn’t a conflict and that the

record clearly establishes Smith isn’t entitled to relief on either the First or Second

IAC Claims. For the reasons explained below, we reject the state’s contention that

the record is clear, and we remand for an evidentiary hearing.

      The state argues the record clearly demonstrates that the prosecution never

offered Smith a 20-year plea deal—and as such, any IAC claim premised on Smith’s

first attorney not conveying a 20-year offer to Smith necessarily fails. We disagree

with the state’s interpretation of the record. Most obviously, the record shows that the

prosecutor told the trial court that the state offered Smith a 20-year plea deal. The

state concedes that the record “irrefutabl[y]” shows the prosecutor referenced a 20-

                                           16
year plea deal. Aplee. Br. 38. But it insists the prosecutor qualified that statement

with a “clarif[ying]” phrase—i.e., “if I remember correctly”—and thus introduced

some ambiguity into the matter. Id. (quoting R. 90). But the state takes the

prosecutor’s qualification out of context. In informing the trial court about the earlier

plea deal, the prosecutor said it “was 20 years, and, if I remember correctly, a

dismissal against [Smith’s] co-defendant.” R. 90 (emphasis added). Given the

phrasing of this statement, the clearest interpretation is that the prosecutor meant to

question his memory of the offer’s second component—the dismissal against Smith’s

codefendant—and not the length of the sentence the state offered to recommend.

       Further, the state’s assertion that the record clearly shows the state never

offered Smith a 20-year deal ignores what Smith’s second attorney said to the

sentencing court: she agreed that the prosecutor’s description of the 20-year offer “at

least coincide[d] with [her] memory.” Id. Likewise, the state’s position ignores

Smith’s allegation that his second attorney told him that the state’s 20-year offer had

lapsed. Yes, the state points to a letter from Smith’s first attorney in which he says

the state only offered Smith a 25-year sentence, which Smith rejected. But at best,

this letter creates a conflict in the record about whether the state offered Smith a 20-

year sentence or a 25-year sentence; it doesn’t conclusively establish that no 20-year

offer existed.

       Indeed, we find that the record reasonably suggests at least three possibilities:

(1) the state offered Smith a 25-year sentence, which Smith rejected, and then the

state offered Smith a 20-year sentence, which Smith’s first attorney failed to

                                           17
communicate to him; (2) the state offered Smith a 20-year sentence, but Smith’s first

attorney mistakenly told Smith the state offered him a 25-year sentence; or (3) the

state only offered Smith a 25-year sentence, which Smith’s first attorney properly

communicated to Smith. Only an evidentiary hearing can resolve what actually

occurred. Because the merits of both the First and Second IAC Claims hinge on that

resolution, we remand for an evidentiary hearing.

                                       Conclusion

       We find that the Third IAC Claim has merit and establishes cause to overcome any

procedural default of the First and Second IAC Claims. The district court erred in

concluding otherwise. Further, at this stage of the proceedings, Smith has established

prejudice resulting from the constitutional violations he alleges in the First and Second

IAC Claims. See Davila, 137 S. Ct. at 2065. We therefore conclude that Smith has shown

both cause and prejudice to overcome any procedural default of those two claims. But

because unresolved factual issues preclude us from resolving the merits of these claims,

we reverse and remand to the district court with directions to conduct an evidentiary

hearing and to subsequently review the First and Second IAC Claims on the merits.




                                            18
