     Case: 14-30843      Document: 00513562197         Page: 1    Date Filed: 06/23/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit
                                    No. 14-30843                                   FILED
                                  Summary Calendar                             June 23, 2016
                                                                              Lyle W. Cayce
                                                                                   Clerk
MICHAEL BRADFORD BASS,

                                                 Petitioner-Appellant

v.

J. TIM MORGAN, Warden Winn Correctional Center,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 3:13-CV-3134


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM: *
       Michael Bradford Bass, Louisiana prisoner # 543016, pleaded guilty to
attempted first degree murder of a police officer and was sentenced pursuant
to a plea agreement to the statutory minimum of 20 years of imprisonment.
He filed this 28 U.S.C. § 2254 application challenging his guilty plea, and we
granted a certificate of appealability (COA) on the issues whether he received
ineffective assistance of counsel based on (1) counsel’s advice to enter a plea


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 14-30843    Document: 00513562197     Page: 2   Date Filed: 06/23/2016


                                 No. 14-30843

under State v. Crosby, 338 So. 2d 584 (La. 1976), and (2) counsel’s failure to
advise Bass of the alternative courses of action available to him, such as the
option to plead guilty under North Carolina v. Alford, 400 U.S. 25 (1970).
      Under the AEDPA, a state court’s adjudication of an issue on the merits
is entitled to deference. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A
§ 2254 application shall not be granted unless the state court’s decision “was
contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or
“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.”
§ 2254(d). The state court’s factual findings are presumed correct unless the
applicant rebuts these findings with clear and convincing evidence.
§ 2254(e)(1).
      “This is a difficult to meet and highly deferential standard for evaluating
state-court rulings, which demands that state-court decisions be given the
benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal
quotation marks and citation omitted). To satisfy the standards of § 2254(d),
a state prisoner must show that the state court’s ruling on his claim “was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
      To prevail on a claim of ineffective assistance of counsel, a prisoner must
show (1) that his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984).
A failure to make either showing defeats the claim. Id. at 697.




                                       2
    Case: 14-30843    Document: 00513562197     Page: 3   Date Filed: 06/23/2016


                                 No. 14-30843

      An applicant makes the required showing of prejudice by showing “a
reasonable probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 694. “The likelihood of a
different result must be substantial, not just conceivable.” Richter, 562 U.S. at
112. A defendant who pleads guilty upon the advice of counsel may attack the
voluntariness of his guilty plea by showing that his counsel’s advice constituted
ineffective assistance.   Hill v. Lockhart, 474 U.S. 52, 56-57 (1985).        To
demonstrate prejudice in this context, “the defendant must show that there is
a reasonable probability that, but for counsel’s errors, he would not have
pleaded guilty and would have insisted on going to trial.” Id. at 59.
      “Surmounting Strickland’s high bar is never an easy task.” Richter, 562
U.S. at 105 (internal quotation marks and citation omitted). “Establishing that
a state court’s application of Strickland was unreasonable under § 2254(d) is
all the more difficult. The standards created by Strickland and § 2254(d) are
both highly deferential, and when the two apply in tandem, review is doubly
so.” Id. (internal quotation marks and citations omitted). When § 2254(d)
applies, the question is not whether counsel’s actions were reasonable. “The
pivotal question is whether the state court’s application of the Strickland
standard was unreasonable.” Id. at 101.
      Bass contends that the Louisiana courts have not addressed the merits
of this claim. The Louisiana Second Circuit denied Bass’s writ application
appealing the denial of his state habeas application, concluding that he had
“failed to meet his burden of proving that any of his requested relief should be
granted” citing Louisiana Code of Criminal Procedure article 930.2 and State
v. Berry, 430 So. 2d 1005 (La. 1983). The disposition of Bass’s state habeas
application qualifies as an adjudication on the merits entitled to deference
under § 2254(d). See Gallow v. Cooper, 505 F. App’x 285, 290-91 (5th Cir. 2012).



                                       3
    Case: 14-30843     Document: 00513562197      Page: 4   Date Filed: 06/23/2016


                                  No. 14-30843

      Bass argues in his brief that counsel’s misleading advice to plead guilty
under Crosby, reserving his rights to appeal the trial court’s denial of his
motions to quash and to suppress, induced or tricked him into making an
unintelligent and involuntary plea. He asserts that counsel and the trial court
“bamboozle[ed] the petitioner into believing he could come back to the district
court for trial if the appellate court disagreed with trial court’s rulings.”
      The State argues that counsel’s advice to plead guilty reserving his right
to appeal the denial of his motions to quash and to suppress under Crosby did
not prejudice Bass because the state appellate court reviewed the trial court’s
rulings on the motions and upheld the trial judge’s rulings. The State notes
that Bass got the benefit of his plea agreement. Bass wanted the right to
appeal the trial judge’s ruling on his motions, he got that, and he lost. See
State v. Bass, 47 So. 3d 541, 547-50 (La. Ct. App. 2010).
      Alternatively, based on Bass’s own statements at his plea hearing, Bass
would likely have accepted the plea agreement regardless of counsel’s alleged
insufficient advice regarding the reservation of his right to appeal the trial
court’s ruling on his motions. The record shows that Bass’s decision to plead
guilty was not wholly dependent on his right to appeal the trial court’s rulings
on the motions, but that Bass accepted the plea bargain in part “because he
believed that the testimony of the State’s witnesses would be strong and that
a jury would rule against him.” Bass explained that the testimony of the
witnesses at his hearing on the motions “was part of the reason why I think
I’m accepting the plea.” Bass felt that the plea was in his best interests because
he was concerned that if the jury believed the testimony that was presented at
the hearing and did not believe his version of the events, he would never see
his children again.




                                         4
    Case: 14-30843    Document: 00513562197     Page: 5   Date Filed: 06/23/2016


                                 No. 14-30843

      Bass has not shown prejudice because he has not shown “that there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded
guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59. Thus,
Bass has not shown that the state court’s decision was contrary to or an
unreasonable application of Strickland or an unreasonable determination of
facts in light of the evidence presented in the state court proceeding. See
§ 2254(d).
      Bass also argues that his counsel was ineffective for failing to advise him
of the option to plead guilty under Alford. He asserts that he never intended
or attempted to murder Officer Lambert and that he is innocent of the crime
to which he pleaded guilty. He states that the record shows that he was
attempting to flee the scene and avoid apprehension but does not contain
significant evidence that he had the specific intent to kill Officer Lambert. He
asserts that if he had been given the option of pleading under Alford, he would
have done so, and under the standard of review required by Alford, his
conviction could not stand.
      The “best interest” or Alford plea is derived from North Carolina v.
Alford, 400 U.S. 25, whereby the defendant pleads guilty while maintaining
his innocence. In such a case, the Supreme Court held that a defendant may
plead guilty, without forgoing his protestations of innocence, if “the plea
represents a voluntary and intelligent choice among the alternative courses of
action open to the defendant[,] . . . especially where the defendant was
represented by competent counsel whose advice was that the plea would be to
the defendant’s advantage.” Id. at 31. In a case involving an Alford plea, the
record must contain “strong evidence of actual guilt.” Id. at 37. Under Alford,
when a defendant pleads guilty while maintaining his innocence, it is
constitutional error to accept the plea without ascertaining that there is a



                                       5
    Case: 14-30843    Document: 00513562197     Page: 6   Date Filed: 06/23/2016


                                 No. 14-30843

factual basis to support it.      Unless the defendant makes statements
inconsistent with guilt, state courts are not constitutionally required to
establish a factual basis. Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000).
      The State argues that the option to plead guilty under Alford was not
part of the plea agreement. The State asserts that Bass’s admission of guilt
was an important consideration for the State and the victim to agree to the
minimum sentence that Bass received under the plea agreement. The State
notes that Bass never maintained his innocence, that he admitted that the
testimony of witnesses at the hearing on his motions was a significant factor
in his decision to plead guilty, and that he agreed that this evidence provided
the factual basis for his plea. The State argues that the evidence showing that
Bass refused to stop speeding down the street with Officer Lambert screaming
for him to stop shows his intent to commit the crime he admitted to in his plea.
      The evidence presented at the motions hearing included testimony by
Officer Lambert that Bass kept speeding while Lambert was hanging on half
in and half out of the car, with Lambert yelling for Bass to stop. Bass kept
veering the car back and forth, trying to throw Officer Lambert out of the car.
Bass steered towards a telephone pole, and it looked to Officer Lambert like
Bass was going to try to hit him into the pole. Lambert was able to grab the
steering wheel and spin the car so that it missed the pole. The car stopped
briefly, then Bass accelerated, creating skid marks and smoke, and crashed
the car into a building. The crash stopped the car, and Officer Lambert flew
forward, hitting his head on the windshield. Bass continued to try to drive the
car forward into the building. He then put the car in reverse, stepped on the
gas, and backed out until the car hit something and stopped. One of Officer
Lambert’s legs was pinned between the car and the building. He was able to
reach his Taser, he Tased Bass, and Bass finally stopped. Officer Lambert



                                       6
    Case: 14-30843     Document: 00513562197     Page: 7   Date Filed: 06/23/2016


                                  No. 14-30843

testified that he almost fell out of the car and was scared that he was going to
get killed.
      Bass did not make any statements suggesting that he was innocent or
that were inconsistent with guilt. The trial judge explained the charge of
attempted first degree murder, which included the specific intent to kill a
police officer, and Bass stated that he understood the charge. The trial judge
stated that the factual basis for the plea was what was heard at the hearing
on the motion to suppress and motion to quash, to which statement Bass and
Cooper agreed. The court found that there was a factual basis for the plea.
      On direct appeal, Bass argued that the trial court should have been put
on notice that there was a need for an Alford inquiry to determine whether
there was a significant factual basis for the plea. He argued further that if the
trial court had conducted an Alford inquiry, it would have revealed that the
State’s case did not contain significant evidence of his guilt. Bass, 47 So. 3d at
550. The state appellate court reviewed the plea colloquy and determined that
Bass had not maintained his innocence and so Alford was not triggered. Id. at
551. The court further stated that the facts established the requisites for
attempted first degree murder. Id.
      Despite the fact that Bass did not proclaim his innocence and plead
under Alford, he essentially had what is required by Alford in that the trial
court did make a finding of a factual basis. Further, Bass received review of
that issue on direct appeal. Bass, 47 So. -3d at 550-51. If he had pleaded guilty
under Alford, the result would have been the same.
      Again, Bass has not shown prejudice because he has not shown “that
there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Hill, 474 U.S.
at 59. Bass has not shown that the state court’s decision was contrary to or



                                        7
    Case: 14-30843   Document: 00513562197    Page: 8   Date Filed: 06/23/2016


                               No. 14-30843

involved an unreasonable application of Strickland or an unreasonable
determination of facts in light of the evidence presented in the state court
proceeding. See § 2254(d).
     AFFIRMED.




                                     8
