                      United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 02-1326
                                   ___________

Douglas Colvin,                       *
                                      *
           Petitioner - Appellee,     *
                                      * Appeal from the United States
    v.                                * District Court for the
                                      * Eastern District of Missouri.
Lynda Taylor,                         *
                                      *
           Respondent - Appellant. *
                                  _________

                             Submitted: September 9, 2002

                                  Filed: April 2, 2003
                                   ___________

Before WOLLMAN, HEANEY, and BYE, Circuit Judges.
                         ___________

BYE, Circuit Judge.

       In the Circuit Court of Randolph County, Missouri, petitioner Douglas E.
Colvin pleaded guilty to two counts of distributing a controlled substance and one
count of keeping or maintaining a public nuisance. He was sentenced to
imprisonment. After exhausting his state remedies, Colvin submitted a habeas
petition under 28 U.S.C. § 2254, claiming his plea agreement with the State of
Missouri had been violated. The district court granted the petition. The State appeals
the grant of habeas relief, asserting the plea agreement was not breached. We do not
believe the holding of the Missouri courts was unreasonable; therefore, we reverse
the judgment below.

                                          I

      Colvin's plea agreement included a promise from the prosecutor to "stand silent
upon" Colvin's request to be sentenced to an institutional treatment center for 120
days followed by probation, pursuant to Mo. Rev. Stat. § 559.115. At sentencing,
while discussing Colvin's pre-sentence investigation report, defense counsel stated
that Colvin had "matured" since 1984, when he was convicted of another crime, and
that he had used his time in prison for that conviction to better himself. The
prosecutor in turn stated:

      Your Honor, I've agreed to stand silent today, but I was listening while
      we were arguing about the [pre-sentence investigation report]. And I do
      have a bit of a problem with some of the remarks [that] were made.
      Which is that the defendant has matured a lot in his thirteen years at the
      Department of Corrections, and made good use of his time, and has been
      able to succeed without being a danger to society.

      Within a matter of – I mean this guy just got out of prison. And, right
      after he got out of prison, he engaged in a drug operation which
      involved, in part, 801 West Coates, but also involved other activities
      that were going on. There are complete connections between him and
      other members of the St. Louis area.

      When this whole program of selling started, through January and April,
      and we started making our buys, Mr. Colvin immediately jumped into
      the fray, and started dealing drugs right away. Even the day that he was
      picked up on this offense, he made a buy – or he made a sale to our
      confidential informant before they tapped him that day. We even
      recovered the buy money off of him.



                                         -2-
      I don't think it can be said that he matured a lot, or made the most of his
      time. The only thing I'd add to that is the fact that apparently he didn't
      take his treatment program too seriously. On one of the last pages there,
      it says he completed out-patient treatment, a special condition of this
      parole, at Archways Comminutes, Inc., in 1994. But by his own
      admission, he continued to use drugs.

                                          ...

      [H]e wasn't out [of prison for the first-degree robbery] any time before
      the buys were being made in this case.

      And I think that is a relevant factor for the Court to consider, in light of
      the comments defense counsel makes about his rehabilitation.

       The Missouri trial court sentenced Colvin to eight years imprisonment on the
distribution counts, and to a consecutive term of five years imprisonment on the
nuisance count. Colvin filed a motion under Missouri Supreme Court Rule 24.035,
seeking to withdraw his guilty plea on the ground that the State had violated its plea
agreement to stand silent at sentencing with regard to Colvin's request for probation.
Following an evidentiary hearing, the trial court concluded the remarks by the
prosecutor at sentencing "were fair comments upon what defense counsel had stated."
The trial court further observed the State "had a duty to the Court to rebut inferences
drawn by defense counsel." The court also noted "the prosecutor did not suggest a
particular sentence, nor did he voice opposition to probation." The Missouri court
thus concluded the State did not violate its agreement to stand silent on the probation
request, and denied Colvin's motion for post-conviction relief.

      The Missouri Court of Appeals affirmed the denial of post-conviction relief
finding that:

      In this case, the State agreed only to stand silent to Mr. Colvin's request
      for sentence to an institutional treatment center with a 120-day call back.

                                          -3-
      The State fulfilled that promise. The prosecutor never argued that Mr.
      Colvin should not receive a 120-day call back or be considered for
      probation. The prosecutor's comments in reply to defense counsel's
      characterizations of Mr. Colvin as matured and rehabilitated were
      merely clarifications of fact before the sentencing court. As an officer
      of the court, the prosecutor had the duty to convey to the court facts
      about the case and the defendant as long as the specific terms of the plea
      agreement were not violated. [Stufflebean v. Missouri, 986 S.W.2d 189,
      192 (Mo. Ct. App. 1999) (reasoning: "As an officer of the court, the
      prosecutor had the duty to convey to the court facts about the case and
      the defendant so long as the specific terms of the plea agreement were
      not violated.")]. The prosecutor believed that the inferences drawn by
      the defense counsel were unfair or untrue; therefore, he rebutted the
      inferences. In clarifying the record for the court, the prosecutor did not
      breach the specific terms of the plea agreement. The motion court,
      therefore, did not clearly err in denying Mr. Colvin’s Rule 24.035
      motion for post-conviction relief. The point is denied.

Colvin v. Missouri, No. WD 57363 (Mo. Ct. App. Feb 15. 2000) (unpublished, but
quoted identically by both the State and Colvin).

       Colvin submitted a habeas petition under 28 U.S.C. § 2254. A federal
magistrate judge considered the petition and found Santobello v. New York, 404 U.S.
257 (1971), was unreasonably applied by the Missouri courts. The district court
agreed, adopted the report of the magistrate judge, granted the petition and issued the
writ of habeas corpus.

                                          II

       Even in the unique context of habeas corpus review, we still review the district
court's legal conclusions de novo and its findings of fact for clear error. Hoon v.
Iowa, 313 F.3d 1058, 1060 (8th Cir. 2002); Pitts v. Norris, 85 F.3d 348, 350 (8th Cir.



                                         -4-
1996) (illustrating our de novo review of a district court's denial of a petition for writ
of habeas corpus relief).

       The determination as to whether a prosecutor's statement violates a plea
agreement is a conclusion of law. United States v. Johnson, 241 F.3d 1049, 1053 (8th
Cir. 2001). Thus, we will look anew at the record which was before the district court
when it made its decision in this matter. Id. (explaining issues concerning the
interpretation and enforcement of a plea agreement are issues of law, which we
review de novo).

       "The Antiterrorism and Effective Death Penalty Act of 1996 [(AEDPA)]
modified a federal habeas court's role in reviewing state prisoner applications in order
to prevent federal habeas 'retrials' and to ensure that state-court convictions are given
effect to the extent possible under law." Bell v. Cone, 535 U.S. 685, 122 S.Ct. 1843,
1849 (2002) (citing Williams v. Taylor, 529 U.S. 362, 403-404 (2000)). In fact, when
a claim has been adjudicated on the merits in state court, an application for writ of
habeas corpus may only be granted where the state court adjudication:

      (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) (emphasis added).

      [AEDPA's] "contrary to" and "unreasonable application" clauses have
      independent meaning. A federal habeas court may issue the writ under
      the "contrary to" clause if the state court applies a rule different from the
      governing law set forth in our cases, or if it decides a case differently
      than we have done on a set of materially indistinguishable facts. The

                                           -5-
      court may grant relief under the "unreasonable application" clause if the
      state court correctly identifies the governing legal principle from our
      decisions but unreasonably applies it to the facts of the particular case.
      The focus of the latter inquiry is on whether the state court's application
      of clearly established federal law is objectively unreasonable.

Bell, 122 S.Ct. at 1850 (discussing Williams); see Sexton v. Kemna, 278 F.3d 808,
811 (8th Cir. 2002) (analyzing Williams).

       This latter inquiry is what concerns us on this appeal. The district court held
Santobello was unreasonably applied by the Missouri courts. The sole issue before
us, therefore, is whether the district court reached the correct legal conclusion. Or in
other words, did the Missouri courts apply Santobello in an "objectively
unreasonable" manner?

       While it is not perfectly clear what "objectively unreasonable" means,
Williams, 529 U.S. at 409 (commenting "the term 'unreasonable' is no doubt difficult
to define" but is nonetheless familiar to federal judges ) (O'Connor J., concurring,
writing for the Court)), the Supreme Court has repeatedly stressed that an
unreasonable application is different from an incorrect one. Bell, 122 S.Ct. at 1850;
Williams, 529 U.S. at 409-410, 411 (explaining a federal habeas court may not issue
a writ under the unreasonable application clause "simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly"); see Hoon, 313 F.3d at 1061.

       Accordingly, "[w]e must deny a writ—even if we disagree with the state
court’s decision—so long as that decision is reasonable in view of all the
circumstances." May v. Iowa, 251 F.3d 713, 716 (8th Cir. 2001). Even more plainly
put, we may not grant a writ of habeas corpus unless the relevant state court decision
is both wrong and unreasonable.



                                          -6-
                                          III

        Santobello established the principle that "when a plea rests in any significant
degree on a promise or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be fulfilled." 404 U.S. at 262;
United States v. McCray, 849 F.2d 304, 305 (8th Cir. 1988) (per curiam). So, the
State must honor its plea agreements. See McCray, 849 F.2d at 305. Here, the State
agreed to "stand silent upon" Colvin's request to be sentenced to an institutional
treatment center for 120 days followed by probation, pursuant to Mo. Rev. Stat. §
559.115. When Colvin made his request and offered reasons why the request should
be granted, however, the State rose to rebut the very factual assertions which
supported Colvin's request for probation.

       The Missouri Court of Appeals held "[t]he prosecutor's comments in reply to
defense counsel's characterizations of Mr. Colvin as matured and rehabilitated were
merely clarifications of fact before the sentencing court" and therefore did not breach
the plea agreement. To determine if this legal conclusion amounts to an unreasonable
application of Santobello, we must consider if Santobello and its progeny mean that
when a prosecutor agrees to stand silent on an issue, he or she has also impliedly
agreed not to refute factual assertions made on the issue, which the prosecutor
believes are inaccurate.

      While both parties direct our attention to McCray, it does not answer this
question. In McCray, the United States government entered into a plea agreement
whereby McCray pleaded guilty to one count of an indictment. 849 F.2d at 305. In
exchange for this concession, the government agreed to dismiss the remaining
elements of the indictment, "not make any recommendation as to the sentence to be
imposed," and "stand mute" at the "initial imposition of sentence." Id. The parties
understood the plea agreement did "not bind the United States at any other
proceeding." Id.

                                         -7-
        At the sentencing hearing McCray was sentenced to a fine and a term of
imprisonment, but he then requested that he be designated eligible for early parole
pursuant to 18 U.S.C. § 4205(b)(1). Id. The district court asked the government for
its position on McCray's request, and, despite its agreement, it answered: "we would
resist that and ask that the court's sentence stand as given." Id.

       The case came before us on McCray's direct appeal, where the government
argued that it had not violated the plea agreement because it remained silent until
after the district court imposed the sentence, and commented only on the manner in
which the sentence should be executed. Id. We rejected this "hypertechnical"
distinction, and reasoned that because the plea agreement expressly provided that the
government would not be bound at "any other proceeding" it implied the government
"would be bound for the entire sentencing hearing." Id. Thus we concluded the
government violated its agreement by speaking when it had promised not to, and by
taking a position at the sentencing hearing under the same set of like circumstances.

       Unlike McCray, the present case is not before us on direct appeal but is instead
an appeal from the grant of a habeas corpus petition. This distinction has import. As
explained above, our role in the habeas corpus context is limited. If we disagree with
a district court's conclusion of law on a direct appeal, for example, we may reverse.
In the habeas corpus context we may only do so if we conclude the state court is
wrong and unreasonable.

      Additionally, McCray does not address whether a prosecutor has the right to
correct factual misstatements without violating a plea agreement to stand mute.
Moreover, research has not revealed and counsel has not provided any Eighth Circuit
or Supreme Court case directly on point. We have held, however, that in the habeas
corpus context, the objective reasonableness of a state court's application of Supreme
Court precedent may be established if our sister circuits have similarly applied the
precedent. Sexton, 278 F.3d at 812-13.

                                         -8-
In United States v. Block, the Fifth Circuit addressed the issue by reasoning:

[United States v. Avery, 589 F.2d 906 (5th Cir. 1979)] and [United
States v. Crusco, 536 F.2d 21 (3d Cir. 1976)] both affirm that an
agreement to stand mute or to take no position on the sentence restricts
the Government's right to make certain types of statements to the court.
However, neither case stands for the broad proposition that by making
such agreements the Government forfeits all right to participate in either
the pre-sentence investigation or the sentence hearing. Instead, the cases
simply hold that an agreement to stand mute or take no position
prohibits the Government from attempting to influence the sentence by
presenting the court with conjecture, opinion, or disparaging information
already in the court's possession. Efforts by the Government to provide
relevant factual information or to correct misstatements are not
tantamount to taking a position on the sentence and will not violate the
plea agreement.

A prosecutor has a duty to insure that the court has complete and
accurate information concerning the defendant, thereby enabling the
court to impose an appropriate sentence. Thus if an attorney for the
Government is aware that the court lacks certain relevant factual
information or that the court is laboring under mistaken premises, the
attorney, as a prosecutor and officer of the court, has the duty to bring
the correct state of affairs to the attention of the court. Quite aside from
that duty, a prosecutor, if permitted by the sentencing judge, may
recommend a particular sentence based upon the facts before the court.
As part of a plea agreement, the Government is free to negotiate away
any right it may have to recommend a sentence. However, the
Government does not have a right to make an agreement to stand mute
in the face of factual inaccuracies or to withhold relevant factual
information from the court. Such an agreement not only violates a
prosecutor's duty to the court but would result in sentences based upon
incomplete facts or factual inaccuracies, a notion that is simply
abhorrent to our legal system.




                                    -9-
660 F.2d 1086, 1090-92 (5th Cir. 1981) (citations and footnotes omitted). The
reasoning of Block has been adopted by the Fourth Circuit as well. E.g.,United States
v. Perrera, 842 F.2d 73, 75 (4th Cir. 1988) (per curiam) (holding the government did
not violate its plea agreement with a defendant because, in addition to specifically
retaining the right to comment at the sentencing hearing concerning Defendant's
conduct and background, "the prosecuting attorney had a duty to bring all relevant
information about [Defendant] to the court's attention at the time of sentencing");
United States v. Dail, 1991 U.S. App. LEXIS 315, * 7 (4th Cir. May 9th 1991)
(unpublished) (holding the government was required by law to correct a defendant's
misrepresentations at a sentencing hearing, and doing so did not violate the plea
agreement);

       In United States v. Mondragon, 228 F.3d 978 (9th Cir. 2000), the Ninth Circuit
encountered a similar situation. In Mondragon, the defendant entered into a plea
agreement by which he agreed to plead guilty to certain counts of an indictment in
exchange for the government's promise to "make no recommendation regarding
sentence." 228 F.3d at 979. At the sentencing hearing, defense counsel commented
"Ray does have a lengthy criminal history, I think it's reflected in the history that his
crimes, while they cannot be diminished, are petty in nature." Id. The district court
then asked the prosecutor if the government had a response. Id. The prosecutor
responded by stating in part: "Just to point out that there's no misconstruction of the
history, we just point out to the Court the serious nature of some of the listed offenses
in there and also point out that, just under my looking at this criminal history that we
have in front of us, that approximately 25 percent of the time the defendant's been
arrested he has run or resisted and that 45 percent of the time he has failed to appear
or warrants have been issued or he's had a probation violation." Id.

      In resolving the case the Ninth Circuit reasoned that "[b]ecause the prosecutor's
comments did not provide the district judge with any new information or correct any
factual inaccuracies, the comments could have been made for only one purpose: to

                                          -10-
influence the district court to impose a harsher sentence than that suggested by
appellant's counsel." Id. at 980. The Ninth Circuit, therefore, also prohibits a
prosecutor from attempting to influence the sentence when he or she has agreed not
to. Id. Implicit in this decision is an acknowledgment that a prosecutor may correct
any factual inaccuracies made by the defendant at sentencing without violating the
plea agreement.

       Similarly, in United States v. Clark, 55 F.3d 9 (1st Cir. 1995), the First Circuit
encountered such a situation. Clark entered into a plea agreement with the
government where the government promised not "to oppose a three (3) level
reduction in the defendant's Adjusted Offense Level under the Sentencing Guidelines,
based upon the defendant's prompt recognition and affirmative acceptance of personal
responsibility for the offense." 55 F.3d at 10. Prior to sentencing, the government
submitted a sentencing memorandum outlining proposed guideline adjustments to be
taken in light of alleged obstruction of justice which was discovered subsequent to
the plea agreement. Id. at 10-11. Clark objected, arguing this memorandum violated
the plea agreement. Id. at 11. The First Circuit agreed, reasoning:

      While it is true that the government had not only the ability but the duty
      to draw facts to the court's attention . . . we think the government did
      more in this case. Rather than merely drawing facts and law to the
      court's attention, or answering factual or legal questions posed by the
      court, the government instead indicated that it opposed an adjustment
      for acceptance of responsibility and effectively argued against it by
      stating that this was not an 'extraordinary' case.

Id. at 13. Thus the First Circuit will not allow "end-runs" around Santobello. Id. at
12 (quoting United States v. Canada, 960 F.2d 263, 269 (1st Cir. 1992)). But it also
recognizes that a prosecutor may draw facts to the court's attention without violating
a plea agreement to stand mute.



                                          -11-
       Our sister circuits thus make clear that prosecutors may sometimes speak even
though they have promised not to, and still not run afoul of Santobello. Regardless
of whether the Fifth, Fourth, Ninth or First Circuits would conclude that this case is
at peace with Santobello, the courts of Missouri did. The question for us becomes:
whether it was reasonable for the Missouri courts to determine that the prosecutor's
remarks were undertaken only to correct Colvin's attorney's misstatements, and were
not, instead, undertaken in an attempt to "influence the sentence by presenting the
court with conjecture, opinion, or disparaging information already in the court's
possession[?]" Block, 660 F.2d at 1091.

      The Missouri Court of Appeals concluded, like the trial court it affirmed, that
the prosecutor's comments were undertaken only to reply to and clarify defense
counsel's factually incorrect assertions. Colvin's attorney claimed his client spent his
previous incarceration maturing and otherwise being rehabilitated. The fact is,
however, there was virtually no lapse in Colvin's criminal behavior. When Colvin
was free from confinement he was perpetrating crimes. To suggest otherwise may be
reasonably considered a misstatement of fact.

       As we expressed at the outset, under AEDPA we must give substantial
deference to a state court's legal conclusions. We may not grant a petition for a writ
of habeas corpus unless the relevant state court decision is both wrong and
unreasonable. May, 251 F.3d at 716. Here we cannot say the Missouri court's
application of Santobello was unreasonable. This is not to say we agree with the
court's application or abandon our position in McCray, 849 F.2d at 305 (rejecting a
"hypertechnical" distinction and opting instead for a broader view of what violates
a plea agreement). Even if we might find evidence in the record which would lead
us to disagree with the Missouri court's conclusion, it is improper to undermine a state
court decision unless it is also unreasonable. We therefore conclude, as we must, that
the district court should not have granted the habeas petition.



                                         -12-
      Accordingly, the judgment is reversed, and the case is remanded to the district
court with directions to deny the petition.

HEANEY, Circuit Judge, dissenting.

      I would affirm the judgment of the district court. It applied the correct legal
standard in reaching its decision and correctly held that the state court decisions were
an unreasonable application of the Supreme Court’s precedent in Santobello v. New
York, 404 U.S. 257 (1971).

       It is clear to me that the prosecutor breached the plea agreement by
commenting on petitioner’s request for a probationary sentence after promising to
take no position on the matter. I agree with the district court that while the prosecutor
was free to comment on the presentence report with respect to the petitioner’s status
as a persistent offender and on the details of the charged crime, he went beyond
outlining those details and implicitly opposed petitioner’s request for a sentence of
probation pursuant to Mo. Rev. Stat. § 559.15. As the district court stated: “The
prosecutor himself realized he was breaking his promise by beginning with, ‘Your
Honor, I’ve agreed to stand silent today, but . . . .’” The prosecutor’s statements were
not a clarification of the facts; they were simply his impression of the petitioner.
This is obvious from the words of the prosecutor. See e.g., ante at 3 (“I don’t think
it can be said he’s matured a lot . . . .”) It is also obvious that the theme of the
prosecutor’s soliloquy was that the petitioner was not a good person, unfit for
probation. This is clearly argument, rather than a clarification of confused facts. In
a factually similar situation, the Ninth Circuit said:

            The prosecutor’s comments . . . did not provide the district judge
      with any information which he did not already have before him. What
      the prosecutor did was to make certain that there was “no
      misconstruction of the history” ([defense] counsel had construed the


                                          -13-
      prior offenses as “petty in nature”), by pointing out the “serious nature”
      of the prior offenses.

             Because the prosecutor’s comments did not provide the district
      judge with any new information or correct any factual inaccuracies, the
      comments could have been made for only one purpose: to influence the
      district court to impose a harsher sentence than that suggested by
      appellant’s counsel.


United States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). Likewise here, the
prosecutor’s “clarification” of facts was essentially argument to the sentencing court
that Colvin was not amenable to probation. While the district court may well have
reached this conclusion on its own, the prosecutor had agreed to remain silent on the
issue; failing to do so violated the plea agreement.

       There is an additional reason for awarding petitioner relief. The state motion
court based its denial of relief on its finding that Colvin was never promised by his
counsel or the prosecutor that he would receive probation if he pled guilty to the three
counts outlined in the majority’s opinion. Thus, he was not prejudiced when the
district court refused to give him an authorized probationary sentence. This reasoning
misses the point. The question is whether the prosecutor violated the basis on which
the plea was entered when he, in effect, said that Colvin was not entitled to probation.
The fact that the state motion court did not fully consider Colvin’s argument is an
additional reason for remanding the matter for resentencing.

       We do not know what the sentencing judge would have done had the
prosecutor honored the plea agreement and remained silent. The sentencing laws
applicable to Colvin clearly provided for the possibility of a probationary sentence.
The district court recognized this fact when it ordered that the case be remanded to
state court for sentencing by another judge to impose sentence following a hearing
consistent with the plea agreement. I would uphold that decision.

                                         -14-
A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                          -15-
