                                                                     FILED
                                                         United States Court of Appeals
                                                                 Tenth Circuit

                                                                March 7, 2014
                                   PUBLISH                   Elisabeth A. Shumaker
                                                                 Clerk of Court
                   UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 ANTONIO DON MILTON,

       Petitioner - Appellant,
 v.                                                    No. 12-6187
 DAVID MILLER,

        Respondent - Appellee.



        APPEAL FROM THE UNITED STATES DISTRICT COURT
           FOR THE WESTERN DISTRICT OF OKLAHOMA
                    (D.C. No. 5:10-CV-01367-F)


John T. Carlson, Assistant Federal Public Defender (Warren R. Williamson,
Interim Federal Public Defender, with him on the briefs), Denver, Colorado, for
Petitioner-Appellant.

Keeley L. Miller, Assistant Attorney General (E. Scott Pruitt, Attorney General of
Oklahoma, with her on the brief), Oklahoma City, Oklahoma, for Respondent-
Appellee.


Before BRISCOE, Chief Judge, EBEL and KELLY, Circuit Judges.


BRISCOE, Chief Judge.


      Appellant Antonio Milton is an Oklahoma state prisoner serving a life

sentence without parole for drug-trafficking-related convictions. After exhausting
his state court remedies, Milton filed a petition for writ of habeas corpus pursuant

to 28 U.S.C. § 2254 alleging, in relevant part, that his counsel on direct appeal

was ineffective for failing to assert a claim of ineffective assistance of trial

counsel, specifically that Milton’s trial counsel failed to inform Milton of a

favorable pretrial plea offer. The district court denied Milton’s petition, but we

granted Milton a certificate of appealability to challenge the district court’s ruling

on the ineffective assistance of appellate counsel claim. Now, exercising our

appellate jurisdiction under 28 U.S.C. § 1291, we conclude that the Oklahoma

state courts’ resolution of Milton’s ineffective assistance claim cannot survive

scrutiny under 28 U.S.C. § 2254(d)(1), and that unresolved issues of fact prevent

us from completing our own de novo review of the claim. Consequently, we

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

hearing on, and to subsequently review on the merits, Milton’s ineffective

assistance of appellate counsel claim.

                                           I

                          Milton’s state court proceedings

      On May 22, 2007, Milton was arrested as he attempted to flee a suspected

drug house in the northeast part of Oklahoma City, Oklahoma. Milton was found

to be in possession of a key that fit two locks on the back door of the residence.

Parked outside of the residence was an automobile that was registered to Milton

and that contained a loaded firearm on the front console, a quantity of marijuana,

                                           2
and a utility bill for the residence. The officers also found papers belonging to

Milton in one of the bedrooms in the residence.

      Milton’s suspected involvement with the drug house led to him being

charged in the District Court of Oklahoma County, Oklahoma, Case No. CF-2007-

3113, with seven criminal counts. At a pretrial hearing held on June 2, 2008, the

trial judge discussed the possibility of a plea bargain and stated on the record that

Milton “had the opportunity to plead guilty and receive 23 years on [the pending

charges], prior to preliminary hearing and he turned that down.” Aplt. Br., Att. 2,

Tr. at 16. Milton’s trial counsel at the time of the pretrial hearing, Mike Arnett,1

responded:

      “My client has told me that that is the first he ever heard of the 23-
      year offer that was made in [2007]. As neither Mr. Albert [co-
      defense-counsel] nor myself were his attorneys at the time, we have
      no way of verifying that but just for the record, he asked that I advise
      the Court that this is the first he’s heard about it today, is that
      correct, Mr. Milton?”

Id. Milton responded, “Yes.” Id. The prosecutor at the time of the pretrial

hearing, Ashley Altshulter, asked if he “c[ould] address that just to clear that up.”

Id. Altshulter continued,

      “I’m just reading the notes of Josh McGoldrick[, the former
      prosecutor in the case]. It is in our file I believe on August 2nd of
      [20]07, [Milton] was represented by Joe Reynolds and Mr.
      McGoldrick offered 25 on Possession With Intent with all other

      1
        According to the record, Milton was represented by five different
attorneys during the course of his state court proceedings in Case No. CF-2007-
3113.

                                          3
      counts to run concurrent and then also to run concurrent with the 20
      on the CF-07-3076 case [another criminal case, involving a drive-by
      shooting, that was pending at that time against Milton in the District
      Court of Oklahoma County]. It was before prelim.” 2

Id. The trial judge responded, “Okay. Well, that’s water under the bridge

because the State’s not making that offer today. Today the State has offered 40

[years] to do and I think that the last offer that I heard was concurrent with 18

[years] to do in the Drive-By Shooting.” Id., Tr. at 16-17. The trial judge then

discussed the existing plea offer with Milton and confirmed that Milton did not

“want to do that.” Id., Tr. at 17.

      Milton’s drug-related case (Case No. CF-2007-3113) proceeded to trial and,

on June 4, 2008, a jury convicted Milton of four of the pending counts: trafficking

in cocaine base after two or more previous felony convictions, possession of a

firearm after two or more previous felony convictions, possession of drug

paraphernalia, and possession of a controlled dangerous substance (marijuana)

after two or more previous felony convictions. The trial court, in accordance with

the jury’s recommendations, sentenced Milton to life imprisonment without parole

on the trafficking conviction, life imprisonment with the possibility of parole on

the possession of firearm conviction, one year of imprisonment on the drug

paraphernalia conviction, and ten years’ imprisonment on the possession of a


      2
        The record on appeal indicates that a “preliminary hearing conference”
was held in Case No. CF-2007-3113 on August 2, 2007. ROA, Vol. 1, Part 2 at
255-56.

                                          4
controlled-dangerous-substance conviction, with all sentences to be served

consecutively to one another.

      Milton, represented by a new attorney, Katrina Conrad-Legler, filed a direct

appeal raising seven propositions of error. On May 26, 2009, the Oklahoma

Court of Criminal Appeals (OCCA) issued an unpublished opinion affirming

Milton’s convictions and sentences.

      On or about August 19, 2010, Milton filed a pro se application for state

post-conviction relief, and an accompanying request for an evidentiary hearing,

with the District Court of Oklahoma County. Milton argued, in pertinent part,

that his appellate counsel rendered ineffective assistance by failing to assert on

direct appeal that Milton’s trial counsel was ineffective for failing to inform

Milton of a plea-bargain offer made by the prosecution prior to the preliminary

hearing.

      The State of Oklahoma filed a brief in opposition to Milton’s application

for post-conviction relief. Attached to that opposition brief was an affidavit from

Jacob Benedict, the assistant public defender who purportedly represented Milton

at the time of the preliminary hearing in Case No. CF-2007-3113. 3 Benedict’s


      3
        Milton’s application identified his trial counsel as Joe Reynolds.
According to the record, Reynolds was a private attorney and the first to represent
Milton in Case No. CF-2007-3113. Reynolds apparently did not, however,
represent Milton either at the preliminary hearing conference conducted on
August 2, 2007, or the preliminary hearing conducted on October 30, 2007.
Instead, it appears that Milton was represented at those points by Benedict.

                                          5
affidavit alleged, in pertinent part, as follows:

              3. Originally, the State offered a plea agreement that would
       have provided for Mr. Milton to be sentenced to a term of twenty
       years imprisonment on a lesser offense in CF-2007-3113 to be served
       concurrently with Case No. CF-2007-3076 in exchange for his pleas
       of guilty in both cases. This offer would expire, however, upon the
       conduct of a preliminary hearing. I communicated this offer to Mr.
       Milton. Mr. Milton rejected the offer of twenty years imprisonment
       and requested that he be given a preliminary hearing on the charges
       in CF-2007-3113.

              4. On October 30, 2007, Mr. Milton was scheduled for
       preliminary hearing . . . in Case No. CF-2007-3113. Prior to the start
       of preliminary hearing, the State offered a plea agreement that would
       have provided for Mr. Milton to be sentenced to a term of twenty
       years imprisonment on a lesser offense in CF-2007-3113 to be served
       concurrently with Case No. CF-2007-3076 in exchange for his pleas
       of guilty in both cases. The crime alleged in CF-2007-3076 was an
       85 percent crime.

              5. Prior to the start of preliminary hearing on October 30,
       2007, I along with attorney Joe Reynolds, counsel for Mr. Milton in
       CF-2007-3076, met with Mr. Milton. At that time, the State’s offer
       of twenty years imprisonment was conveyed to Mr. Milton. It was
       explained to Mr. Milton that this offer would be withdrawn if he
       proceeded with preliminary hearing. Mr. Milton rejected the State’s
       offer and preliminary hearing was conducted.

Id., Vol. 1, Part 2 at 378.

       Milton filed a reply brief arguing, in pertinent part, that “a comparison of

[Benedict’s] Affidavit, [sic] to the actual trial transcripts of Case No. CF-2007-

3113, w[ould] clearly contradict and nullify certain material parts of the

information contained in [the] Affidavit. For example, none of the dates and none

of the sentences . . . mentioned in the Affidavit corresponds with the relevant date


                                           6
of ‘August 2, 2007’ or to the relevant ‘plea offer of 23-years, or even 25-years’ as

was referred to or mentioned in ‘Sub-Proposition A’ or as in the trial transcripts.”

ROA, Vol. 1, Part 1 at 187-88.

      On October 21, 2010, the state district court denied Milton’s application for

post-conviction relief. In doing so, the state district court held that “[i]n order to

maintain a successful claim of ineffective assistance of appellate counsel, [Milton

had to] show he ha[d] suffered a prejudice so serious as to undermine confidence

in the direct appeal process.” Id. at 52. In turn, the state district court concluded

that “[t]here [wa]s nothing in the record which indicate[d] that appellate counsel’s

performance rendered the result unreliable or the proceeding fundamentally

unfair.” Id. at 53.

      Milton appealed from the state district court’s denial of his application for

state post-conviction relief. On January 24, 2011, the OCCA affirmed the state

district court’s decision. The OCCA had this to say about Milton’s claim of

ineffective assistance of appellate counsel:

      [I]n order to prevail on his claim of ineffective assistance of
      appellate counsel, [Milton] must establish counsel made errors so
      serious the performance was deficient, and that the deficient
      performance deprived him of an appeal whose results are reliable and
      fair. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052,
      2064, 80 L.Ed.2d 674, 693 (1984). The fact appellate counsel fails
      to recognize or raise a claim, regardless of merit, is not sufficient
      alone to establish ineffective assistance of counsel, or to preclude
      enforcement of a procedural default. Id. We FIND [Milton] has not
      established appellate counsel’s performance was deficient, or that the
      result of his appeal was not reliable and fair.

                                           7
Id., Vol. 1, Part 2 at 235-36.

                             Federal habeas proceedings

      On December 20, 2010, Milton filed a pro se petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. As he did in his application for state post-

conviction relief, Milton alleged, in pertinent part, that

      appellate counsel, Katrina Conrad-Legler, rendered ineffective
      assistance by failing to raise in [his] direct appeal the following sub-
      proposition[] of trial counsel’s deficiencies: . . . trial attorney, Joe
      Reynolds, rendered ineffective assistance by failing to inform
      [Milton] of a (pre-preliminary hearing_ plea-bargain offer of 23
      years on all counts until the day set for trial, and well after the plea
      offer had been withdrawn.

ROA, Vol. 1, Part 1 at 23 (capitalization in original omitted).

      On February 10, 2012, the magistrate judge assigned to the case issued a

report and recommendation recommending that Milton’s petition be denied. With

respect to Milton’s claim of ineffective assistance of appellate counsel, the

magistrate judge concluded, after reviewing the affidavit from assistant public

defender Jacob Benedict, that “the underlying claim of ineffective trial counsel

[wa]s without merit,” and that Milton therefore “c[ould not] demonstrate that

[his] appellate counsel was ineffective for failing to raise trial counsel’s

ineffective representation.” Id., Vol. 1, Part 2 at 258. More specifically, the

magistrate judge stated as follows:

        In his affidavit, Mr. Benedict avers that the State initially offered
      [Milton] a plea agreement that included a sentence of 20 years
      imprisonment on a lesser charge in CF 2007-3113, to run

                                           8
concurrently with an equal sentence in Case No. 2007-3076 [the
drive-by shooting case], in return for his guilty plea in both cases
which offer would expire once a preliminary hearing was conducted.
Mr. Benedict states that he communicated the offer to [Milton], but
that [Milton] rejected the offer and requested a preliminary hearing.
Mr. Benedict states further that on October 30, 2007, prior to the
beginning of the preliminary hearing which was scheduled for that
day, the State again offered the same plea agreement. According to
Mr. Benedict’s affidavit, both he and Mr. Reynolds [purportedly
Milton’s counsel in the drive-by shooting case] met with [Milton]
and told him about the State’s plea offer, explaining that the offer
would be withdrawn if the preliminary hearing was conducted. Upon
[Milton]’s rejection of the offer, the preliminary hearing was held.
See Response, Ex. 9, Att. 3.

    In his Reply, [Milton] asserts, without further explanation, that
the plea offer “discussed by Respondent in ‘Proposition 5(A),’ pp.42-
45 of his response is not the same plea offer complained of in ‘Sub-
Proposition (A) of Ground 8’ of [Milton]’s habeas petition.” Reply
at 12. [Milton] does not, however, deny Mr. Benedict’s sworn
statement that a plea agreement offering 20 years in prison in
exchange for his guilty pleas was communicated to and rejected by
[Milton] on two occasions prior to the preliminary hearing.
Assuming that [Milton]’s claim is based on a different offer of 23
years in prison in exchange for his guilty plea which was not
communicated to him until the day of trial, such claim would not
support an ineffective counsel claim. Having failed to deny Mr.
Benedict’s sworn statement that he had twice rejected an earlier 20
year plea offer, [Milton] cannot demonstrate any prejudice resulted
from counsel’s alleged failure to communicate a less favorable offer.
See Strickland, 466 U.S. at 687. The undersigned notes further that
[Milton] in open court rejected the State’s offer on the day of trial of
40 years to run concurrently with 18 years on the drive-by shooting
case. T Tr. Vol. 1 at 17-18. Because the underlying claim of
ineffective trial counsel is without merit, [Milton] cannot
demonstrate that appellate counsel was ineffective for failing to raise
trial counsel’s ineffective representation. Thus, the OCCA’s denial
of this claim of ineffective appellate counsel was neither contrary to
nor an unreasonable application of Strickland, nor an unreasonable
determination of the facts in light of the evidence before it. It is
therefore recommended that this ground for habeas relief be denied.

                                   9
Id. at 257-58.

      Milton filed written objections to the magistrate judge’s report and

recommendation. Milton conceded that he was offered a twenty-year sentence in

the drive-by shooting case (Case No. 2007-3076), id. at 320-21, but he alleged

that “was the only plea offer discussed with [him] prior to his October 30, 2007

preliminary hearing.” 4 Id. at 321. And, Milton alleged, “[t]he only plea offer

discussed in Case No. CF-2007-3113 was the forty (40) year plea offer made on

the day of trial (June 2, 2008) and [he] turned down [that] offer on the advice of

counsel, Mr. Arnett.” Id. Consequently, Milton asserted that “[i]n his sworn

affidavit, Mr. Benedict [wa]s either lying about the none-existing [sic] twenty

(20) year plea offer in Case No. CF-2007-3113, or he ha[d] Case No. CF-2007-

3113 confused with Case No. CF-2007-3076 [the drive-by shooting case] . . . .”

Id. at 321-22 (internal citations omitted).

      Milton also conceded in his written objections that he may have been

confused as to which attorney was representing him in Case No. CF-2007-3113.

Specifically, Milton alleged that the “preliminary hearings in both cases . . . were

held simultaneously, before the same judge . . . and [he] was being represented

simultaneously by both Mr. Jacob Benedict and Mr. Joe Reynolds.” Id. at 323.

“[B]ecause both defense attorneys were simultaneously assisting each other,”

      4
        According to Milton’s reply brief, he rejected that plea offer and the
drive-by shooting case was ultimately dismissed for lack of prosecution. ROA,
Vol. 1, Part 2 at 321 n.15.

                                          10
Milton alleged, “it should be understandable how [he] might be confused as to

which of the two attorneys . . . had the duty to advise[] him of the pre-preliminary

hearing plea offer in Case No. CF-2007-3113.” Id. In any event, Milton argued,

“[t]he real issue” was that no one “informed [him] of any pre-preliminary hearing

plea offer in Case No CF-2007-3113, and as a direct result, rather than serving a

twenty-five (25) year sentence with all counts running concurrently, [he] [wa]s

now serving” substantially longer sentences and was therefore “prejudiced by trial

counsel’s failure to timely inform him of the State’s pre-preliminary hearing plea

offer of twenty-five (25) years in Case No. CF-2007-3113.” Id.

      Finally, Milton argued in his written objections that “because there was

some confusion as to what and when, Mr. Jacob Benedict or Mr. Joe Reynolds

did, or did not advise Petitioner of, regarding the State’s plea offer in Case No.

CF-2007-3113 . . . , it [wa]s error for [the magistrate judge] to recommend the

denial of this habeas issue without granting [Milton] his requested evidentiary

hearing.” Id. at 325.

      On July 11, 2012, the district court issued a two-page order accepting,

adopting and affirming the magistrate judge’s report and recommendation in its

entirety. The order did not expressly address any of the objections raised by

Milton. The order also concluded that Milton was not entitled to a certificate of

appealability (COA). Judgment was entered in the case that same day.

      Milton filed a notice of appeal on July 24, 2012. He subsequently filed a

                                          11
pro se application for COA with this court. We granted Milton a COA with

respect to his ineffective assistance claim. In doing so, we stated, in relevant

part:

            Construing Petitioner’s pro se filings liberally, we conclude that
         reasonable jurists could debate the magistrate judge’s conclusion that
         Petitioner conceded the truth of defense counsel’s affidavit.
         Moreover, contrary to the State’s arguments, we cannot simply
         assume the credibility of defense counsel and accept his affidavit
         over Petitioner’s sworn assertions based on the fact that he is an
         attorney. Rather, counsel’s affidavit simply creates a dispute of fact
         which has never been explicitly resolved by any court and which the
         record is inadequate to resolve. Indeed, the record provides more
         support for Petitioner’s assertions than it does for defense counsel’s.

         ***

            We conclude that reasonable jurists could debate the merit of
         Petitioner’s claim of ineffective assistance based on the counsel’s
         alleged failure to inform him of the plea offer. We also conclude
         that reasonable jurists could debate whether Petitioner is entitled to
         an evidentiary hearing to develop the facts supporting this claim.

Order at 5-6. Along with granting Milton a COA, we also appointed counsel to

represent Milton on appeal. Appointed counsel has since filed a supplemental

opening brief, as well as a supplemental reply brief to respondent’s response

brief.

                                            II

                                   Standard of review

         Because Milton’s habeas petition was filed after the effective date of the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), we are bound


                                            12
by AEDPA’s standards of review. See Snow v. Sirmons, 474 F.3d 693, 696 (10th

Cir. 2007) (holding that AEPDA applies to § 2254 habeas petitions filed after its

effective date).

      Under AEDPA, the standard of review applicable to a particular claim

depends upon how that claim was resolved by the state courts. Id. If a claim was

addressed on the merits by the state courts, our standard of review is governed by

28 U.S.C. § 2254(d), which provides as follows:

      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).

      “When reviewing a state court’s application of federal law” under 28

U.S.C. § 2254(d), “we are precluded from issuing the writ simply because we

conclude in our independent judgment that the state court applied the law

erroneously or incorrectly.” McLuckie v. Abbott, 337 F.3d 1193, 1197 (10th Cir.

2003). “Rather, we must be convinced that the application was also objectively

unreasonable.” Id. “This standard does not require our abject deference, but


                                         13
nonetheless prohibits us from substituting our own judgment for that of the state

court.” Snow, 474 F.3d at 696 (internal quotation marks and citation omitted).

      Was the OCCA’s decision contrary to, or an unreasonable
      application of, clearly established federal law?

      Milton argues on appeal that the OCCA’s resolution of his ineffective

assistance of appellate counsel claim was contrary to, or an unreasonable

application of, clearly established federal law. In turn, Milton argues, he is

entitled to a federal evidentiary hearing to resolve his claim. We proceed to

address these arguments in turn.

      a) The clearly established law applicable to Milton’s claim

      Milton correctly identifies Strickland v. Washington, 466 U.S. 668 (1984)

as the clearly established federal law applicable to his ineffective assistance of

appellate counsel claim. See Smith v. Robbins, 528 U.S. 259, 285 (2000)

(holding that “the proper standard for evaluating [a] claim that appellate counsel

was ineffective . . . is that enunciated in Strickland”). In Strickland, the Supreme

Court held that “[a] convicted defendant’s claim that counsel’s assistance was so

defective as to require reversal of a conviction or death sentence has two

components.” 466 U.S. at 687. “First,” the Court noted, “the defendant must

show that counsel’s performance was deficient.” Id. In the context of an

appellate counsel claim, this means “that [appellate] counsel unreasonably failed

to discover [a] nonfrivolous issue[] and to file a merits brief raising [it].” Smith,


                                          14
528 U.S. at 285. “Second,” the Court noted, “the defendant must show that the

deficient performance prejudiced the defense.” Strickland, 466 U.S. at 687. In

the context of an ineffective assistance of appellate counsel claim, this means the

defendant “must show a reasonable probability that, but for his counsel’s

unreasonable failure to” raise a particular nonfrivolous issue, “he would have

prevailed on his appeal.” Smith, 528 U.S. at 285.

      b) Was the OCCA’s analysis contrary to clearly established federal law?

      Milton challenges the OCCA’s analysis of his ineffective assistance of

appellate counsel claim, arguing that the OCCA’s “decision was both contrary to

and an unreasonable application of clearly established federal law” because the

OCCA “misstated the legal tests governing the proper inquiry under federal law.”

Aplt. Br. at 16.

      We agree with Milton that the OCCA misstated the “standard for analyzing

the issue of whether appellate counsel’s performance was deficient.” McGee v.

Higgins, 568 F.3d 832, 838 (10th Cir. 2009). In particular, the OCCA truncated

Strickland’s first prong by stating, “The fact appellate counsel fails to recognize

or raise a claim, regardless of merit, is not sufficient alone to establish ineffective

assistance of counsel, or to preclude enforcement of a procedural default.” ROA,

Vol. 1, Part 2 at 235. As we recognized in both McGee and Cargle v. Mullin, 317

F.3d 1196, 1204-05 (10th Cir. 2003), this “truncation . . . [has] enable[d] the

OCCA to reject appellate ineffectiveness allegations without any assessment of

                                           15
the merits of the underlying predicate claims, so that the OCCA has been able to

declare that a ‘failure to raise even a meritorious claim does not, in itself,

constitute deficient performance.’” Cargle, 317 F.3d at 1204 (quoting Slaughter

v. State, 969 P.2d 990, 996 (Okla. Crim. App. 1998)). “It is clearly wrong, as a

matter of federal law, to require as a necessary condition for relief under

Strickland, something beyond the obvious merit of the omitted claim.” Id. at

1205. “The very focus of a Strickland inquiry regarding performance of appellate

counsel is upon the merits of omitted issues, and no test that ignores the merits of

the omitted claim in conducting its ineffective assistance appellate counsel

analysis comports with federal law.” Id.

      Milton also challenges the OCCA’s framing and apparent analysis of

Strickland’s prejudice standard. Consistent with our holding in McGee, however,

we need not reach this issue. In McGee, the OCCA rejected an ineffective

assistance of appellate counsel claim using language nearly identical to that used

in Milton’s case:

      The fact appellate counsel fails to recognize or raise a claim,
      regardless of merit, is not sufficient alone to establish ineffective
      assistance of counsel, or to preclude enforcement of a procedural
      default. After a review of the record and argument presented by
      Petitioner, we FIND Petitioner has not established appellate
      counsel’s performance was deficient or that the result of his appeal
      was not reliable and fair.

McGee v. State, No. PC-2006-364, slip op. at 4 (Okla. Crim. App. Jun. 9, 2006)

(internal citation omitted). We held that the OCCA’s analysis of appellate

                                           16
counsel’s performance, which quite clearly incorporated “the repudiated

‘regardless of merit’ standard,” “necessarily ‘deviated from the controlling

federal standard’” and was not entitled to deference under § 2254(d)(1). McGee,

568 F.3d at 839 (quoting Cargle, 317 F.3d at 1205). We made no attempt in

McGee to defer to the OCCA’s purported prejudice analysis, and understandably

so. By ignoring the merits of the underlying predicate claim in assessing

appellate counsel’s performance, the OCCA necessarily rendered meaningless any

accompanying prejudice analysis.

      We thus conclude, as we did in McGee, “that the OCCA’s analysis [of

Milton’s ineffective assistance of appellate counsel claim] necessarily ‘deviated

from the controlling federal standard,’” 568 F.3d at 839 (quoting Cargle, 317 F.3d

at 1205), and was thus contrary to clearly established federal law, 5 see Williams

v. Taylor, 529 U.S. 362, 405 (2000) (“A state-court decision will certainly be

contrary to our clearly established precedent if the state court applies a rule that

contradicts the governing law set forth in our cases.”); McGee, 568 F.3d at 839

(refusing to give deference to OCCA decision that was inconsistent with the

      5
        Even setting aside the OCCA’s improper formulation of Strickland’s first
prong, we would still conclude that the OCCA’s ultimate rejection of Milton’s
ineffective assistance of appellate counsel claim was an unreasonable application
of Strickland given the inherent factual dispute in the record. Oklahoma law
recognizes an ineffective assistance claim based upon a showing of the failure to
properly communicate a plea offer and resulting prejudice. See Jiminez v. State,
144 P.3d 903, 906-07 (Okla. Crim. App. 2006). Federal law is to the same effect.
Missouri v. Frye, 132 S. Ct. 1399, 1408-09 (2012); see also Lafler v. Cooper, 132
S. Ct. 1376, 1390-91 (2012).

                                          17
Strickland standards).

      Miller’s satisfaction of the § 2254(d)(1) standard has two related effects.

First, although it does not entitle him to the issuance of a writ of habeas corpus,

see Horn v. Banks, 536 U.S. 266, 272 (2002) (“While it is of course a necessary

prerequisite to federal habeas relief that a prisoner satisfy the AEDPA standard of

review set forth in 28 U.S.C. § 2254(d) . . . , none of our post-AEDPA cases have

suggested that a writ of habeas corpus should automatically issue if a prisoner

satisfies the AEDPA standard”), it effectively removes AEDPA’s prohibition on

the issuance of a writ. Second, it requires us to review de novo his ineffective

assistance of appellate counsel claim, rather than deferring to the OCCA’s

resolution of that claim. See Panetti v. Quarterman, 551 U.S. 930, 953 (2007)

(“When a state court’s adjudication of a claim is dependent on an antecedent

unreasonable application of federal law, the requirement set forth in § 2254(d)(1)

is satisfied. A federal court must then resolve the claim without the deference

AEDPA otherwise requires.”); Williams, 529 U.S. at 406 (noting that “a federal

court will be unconstrained by § 2254(d)(1) [if] the state-court decision falls

within that provision’s ‘contrary to’ clause”); Heard v. Addison, 728 F.3d 1170,

1179 (10th Cir. 2013) (reviewing ineffective assistance claim de novo where the

OCCA’s decision was contrary to Strickland).




                                          18
      c) Did Milton’s appellate counsel err in failing to raise the Strickland issue
      on direct appeal?

      We thus turn to the first prong of Strickland’s two-pronged test for

ineffective assistance. Milton argues, with respect to the first prong, that his

appellate counsel performed deficiently by failing to argue on direct appeal that

Milton’s trial counsel was ineffective for failing to inform Milton of a plea

bargain that was purportedly offered by the prosecution in Case No. CF-2007-

3113 at some point prior to the preliminary hearing on October 30, 2007. In

support, Milton notes that in Jiminez, the OCCA recognized that “the right to

effective counsel guaranteed by the Sixth and Fourteenth Amendments . . .

protects a criminal defendant from objectively deficient representation by defense

counsel in connection with the plea bargaining process,” 144 P.3d at 905, and

held “that a lawyer’s failure to promptly communicate a plea offer cannot be

characterized as objectively reasonable representation under prevailing

professional norms,” id. at 906. In turn, Milton argues that his appellate counsel

“never raised the Jiminez/Strickland error committed by the trial lawyer, even

though the transcripts from the opening morning of trial clearly revealed that

Milton’s first lawyer never communicated a plea offer to his client, a plea whose

favorable terms the prosecutor himself described for the record.” Aplt. Br. at 24-

25. Milton asserts that his appellate lawyer should have “raise[d] the issue, not

only because it was apparent from the record but also because state law squarely


                                          19
supported it.” Id. at 25.

      We agree with Milton. A review of Milton’s trial transcripts should have

alerted Milton’s appellate counsel to the possibility that Milton’s trial attorney

failed to promptly and meaningfully convey to Milton the existence of a plea

offer made by the prosecution at some point prior to the October 30, 2007

preliminary hearing in Case No. CF-2007-3113. And, in light of Jiminez,

Milton’s appellate counsel should have been aware that such a failure was

inconsistent with prevailing professional norms and gave rise to a viable claim of

ineffective assistance of trial counsel. By failing to discover and raise the issue

on direct appeal, Milton’s appellate counsel clearly performed deficiently. Smith,

528 U.S. at 285.

      d) Was Milton prejudiced by his appellate counsel’s deficient performance?

      The focus then turns to the second prong of the Strickland analysis, i.e.,

whether Milton was prejudiced by his appellate counsel’s deficient performance.

Although the state courts apparently resolved this issue in the respondent’s favor,

and the district court expressly did so, on the basis of the statements contained in

the affidavit from Jacob Benedict, we conclude it was error to do so. That is

because, as we noted in our order granting Milton a COA, there is conflicting

evidence in the record on appeal regarding the precise nature of the plea offer that

was purportedly made by the prosecution in Case No. CF-2007-3113 prior to the

October 30, 2007 preliminary hearing (i.e., whether it was for twenty years, as

                                          20
alleged by Benedict, for twenty-three years, as stated by the state trial court, or

for twenty-five years, as stated by the prosecutor on the eve of trial) and, more

importantly, whether Milton was made aware of any such offer. 6 As our prior

order also noted, “the record provides more support for [Milton]’s assertions than

it does for [Benedict]’s,” and we “cannot simply assume the credibility of . . .

[Benedict] and accept his affidavit over [Milton]’s sworn assertions based on the

fact that he is an attorney.” Order at 5. In the end, “[Benedict]’s affidavit simply

creates a dispute of fact which has never been explicitly resolved by any court

and which the record is inadequate to resolve.” Id.

      The outcome of this factual dispute is critical to the resolution of Milton’s

ineffective assistance of appellate counsel claim. Assuming, for purposes of

argument, that Milton is truthfully alleging that he was not informed of any pre-

preliminary-hearing plea offer, and that he would have accepted such offer had he

been timely informed of it, that is clearly sufficient to establish prejudice under

the second prong of Strickland. At the time of Milton’s direct appeal, it was

established under Oklahoma law that “[a] lawyer’s communication and

explanation of a plea bargain offer must be reasonably prompt under the

circumstances,” Jiminez, 144 P.3d at 906, and “that counsel’s failure to convey a

      6
        We reach this conclusion without taking into consideration the factual
allegations made by Milton in his objections to the federal magistrate judge’s
report and recommendation. These additional factual allegations, which we have
recited for purposes of the district court’s benefit on remand, only add to the
factual dispute.

                                          21
plea offer can prejudice a defendant even though he ultimately stands a fair and

impartial trial” if the defendant demonstrates a “reasonable probability that [he]

would have accepted the offer if it had been timely communicated,” id. at 907

(internal quotation marks omitted). Consequently, and again assuming the truth

of Milton’s factual allegations, we conclude there is a reasonable probability that,

had Milton’s appellate counsel raised on direct appeal the issue of whether trial

counsel failed to inform Milton of the pre-preliminary hearing plea bargain,

Milton would have prevailed on this issue in his direct appeal.

      e) Is Milton entitled to a federal evidentiary hearing?

      The final question we must address is whether Milton is entitled to a

federal evidentiary hearing to resolve the disputed factual issues relating to his

ineffective assistance of appellate counsel claim.

      “Federal law restricts the authority of federal courts to grant evidentiary

hearings in habeas cases.” Stouffer v. Trammell, 738 F.3d 1205, 1219 (10th Cir.

2013) (internal quotation marks and brackets omitted). In particular, 28 U.S.C. §

2254(e)(2) severely limits the availability of a federal evidentiary hearing in cases

where a state habeas petitioner “has failed to develop the factual basis of a claim

in State court proceedings,” 28 U.S.C. § 2254(e)(2), due to “a lack of diligence,

or some greater fault, attributable to the p[etitioner] or the p[etitioner]’s counsel,”

Williams, 529 U.S. at 432. “To demonstrate the required diligence, [Milton] must

show that he made a reasonable attempt, in light of the information available at

                                           22
the time, to investigate and pursue claims in state court in the manner prescribed

by state law.” Stouffer, 738 F.3d at 1219 (internal quotation marks omitted).

      It is undisputed that Milton asked both the state trial court and the OCCA

for an evidentiary hearing on his ineffective assistance of appellate counsel claim.

See ROA, Vol. 1, Part 2 at 203 (appellate brief asking for relief in the form of a

remand and state evidentiary hearing). Both of those courts, however, denied

Milton’s request. Under our precedent, “[t]his is sufficient to satisfy § 2254(e)’s

diligence requirement.” Stouffer, 738 F.3d at 1219.

      The only potential remaining hurdle for Milton is the Supreme Court’s

recent decision in Cullen v. Pinholster, 131 S.Ct. 1388 (2011). In Cullen, the

Supreme Court held “that review under § 2254(d)(1) is limited to the record that

was before the state court that adjudicated the claim on the merits.” 131 S.Ct. at

1398. Consequently, a federal appellate court may not, in reviewing a federal

habeas claim under § 2254(d)(1), look to any new evidence that was developed by

the federal district court that initially reviewed the claim. Id. at 1400 (holding

“that evidence introduced in federal court has no bearing on § 2254(d)(1)

review”). Notably, the Supreme Court emphasized that “[s]ection 2254(e)(2)

continues to have force where § 2254(d)(1) does not bar federal habeas relief.”

Id. at 1401.

      We conclude that Cullen does not prohibit us from remanding the case to

the district court with instructions to hold an evidentiary hearing on Milton’s

                                          23
ineffective assistance of appellate counsel claim. As Justice Breyer noted in his

concurring and dissenting opinion in Cullen, “§ 2254(d)(1) does not leave

AEDPA’s hearing section, § 2254(e), without work to do.” Id. at 1412.

Specifically,

      [a]n offender who believes he is entitled to habeas relief must first
      present a claim (including his evidence) to the state courts. If the
      state courts reject the claim, then a federal habeas court may review
      that rejection on the basis of the materials considered by the state
      court. If the federal habeas court finds that the state-court decision
      fails (d)’s test (or if (d) does not apply), then an (e) hearing may be
      needed.

Id.

      Milton’s case is precisely the type anticipated by Justice Breyer’s

comments. As we have already explained, the OCCA’s decision cannot survive

scrutiny under § 2254(d)(1). And, as we have also explained, disputed issues of

fact exist that preclude us from completing our own de novo review of Milton’s

ineffective assistance of appellate counsel claim. Thus, we remand this case to

the district court to conduct an evidentiary hearing and resolve those disputed

issues of fact, and in turn reexamine Milton’s ineffective assistance of appellate

counsel claim in light of its factual findings.

                                          III

      The judgment of the district court is REVERSED and the case

REMANDED with directions to the district court for further proceedings

consistent with this order.

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