                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                               Nos. 13-2838 & 14-1874
                                 ________________

                               MARTIN R. TACCETTA,
                                           Appellant

                                           v.

              ADMINISTRATOR NEW JERSEY STATE PRISON;
            ATTORNEY GENERAL OF THE STATE OF NEW JERSEY

                                  ________________

                     Appeal from the United States District Court
                             for the District of New Jersey
                       (D.C. Civil Action No. 3-09-cv-05508)
                      District Judge: Honorable Mary L. Cooper
                                  ________________

                                Argued October 1, 2014

           Before: AMBRO, CHAGARES, and VANASKIE, Circuit Judges

                               (Filed: February 26, 2015)



Steven B. Duke, Esq.      (Argued)
P.O. Box 208215
New Haven, CT 06520

John V. Saykanic, Esquire
1135 Clifton Avenue
Clifton, NJ 07013
       Counsel for Appellant
John J. Hoffman, Esq.
  Acting Attorney General of New Jersey
Steven A. Yomtov, Esq. (Argued)
  Deputy Attorney General of New Jersey
Office of Attorney General of New Jersey
Division of Criminal Justice
P.O. Box 086
25 Market Street
Richard J. Hughes Justice Complex
Trenton, NJ 08625
       Counsel for Appellees

Lawrence S. Lustberg, Esq.
Benjamin Z. Yaster, Esq. (Argued)
Gibbons
One Gateway Center
Newark, NJ 07102
      Counsel for Amicus Appellant

                                    ________________

                                        OPINION*
                                    ________________

AMBRO, Circuit Judge

       Petitioner Martin Taccetta claims he was deprived effective assistance of counsel

when he rejected a plea offer based on bad advice from his attorney. For the following

reasons, we affirm the District Court’s denial of habeas relief.

                                             I.

       In 1991 Taccetta was charged with murder, racketeering, conspiracy to commit

racketeering, and theft by extortion. In 1993 he was offered a plea deal under which he

would plead guilty to aggravated manslaughter and racketeering, and which would


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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expose him to a maximum sentence of 20 years with an 8-year parole disqualifier. Under

New Jersey law, racketeering is a second-degree offense that can be raised to the first

degree if it involves a violent crime. Failing to anticipate that extortion can be a violent

crime, defense counsel incorrectly advised Taccetta that he would receive no more than a

20-year sentence with a 10-year parole disqualifier if he were acquitted of murder and the

lesser-included homicide offenses. Based on his attorney’s counsel, Taccetta refused the

plea offer because he did not believe a jury would convict him of homicide. At trial, he

was acquitted of homicide but convicted of all other charges. After interpreting extortion

as a violent crime, the trial court raised racketeering to a first-degree offense and imposed

a life sentence with a 30-year parole disqualifier.

       Taccetta filed a petition for post-conviction relief (PCR) in New Jersey state court

claiming he received ineffective assistance of counsel under Strickland v. Washington,

466 U.S. 668 (1984). At an evidentiary hearing, Taccetta maintained his innocence

concerning the aggravated manslaughter charge, but testified that absent defense

counsel’s misadvice he would have accepted the plea offer and lied to enter a guilty plea

to manslaughter. The PCR court concluded that defense counsel’s misadvice was

deficient performance under Strickland, and that, absent the misadvice, Taccetta would

have accepted the plea offer. It thus vacated his conviction and granted a new trial. The

Appellate Division affirmed.

       The New Jersey Supreme Court reversed and reinstated the conviction. State v.

Taccetta, 975 A.2d 928, 934–35 (N.J. 2009). According to that Court, Taccetta was

legally prohibited under New Jersey law from entering a guilty plea to aggravated

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manslaughter because he “would have lied under oath” to do so. Id. at 935. As a result,

counsel’s deficient performance did not cause prejudice.

                                            II.

       The District Court had jurisdiction to review Taccetta’s habeas petition under 28

U.S.C. § 2254. We have jurisdiction to review the District Court’s judgment under 28

U.S.C. §§ 1291 and 2253.

       The Anti-Terrorism and Effective Death Penalty Act (AEDPA) requires federal

habeas courts to “afford considerable deference to state courts’ legal and factual

determinations.” Palmer v. Hendricks, 592 F.3d 386, 391–92 (3d Cir. 2010) (quoting

Lambert v. Blackwell, 387 F.3d 210, 234 (3d Cir. 2004)). We may only grant habeas

relief if a state court determination “was contrary to, or involved an unreasonable

application of, clearly established Federal law[] as determined by the Supreme Court of

the United States” or “was based on an unreasonable determination of the facts.” 28

U.S.C. § 2254(d)(1), (2).

                                            III.

       Taccetta claims that the New Jersey Supreme Court decision violates Strickland,

466 U.S. 668. He first argues that the decision was contrary to clearly established federal

law because the Court applied the wrong legal standard of prejudice. The Court,

however, correctly stated the standard. It began by identifying Strickland’s familiar

requirements of deficient performance and prejudice. Taccetta, 975 A.2d at 934 (citing

Strickland, 466 U.S. at 687). It then defined prejudice as “a reasonable probability” that

the result of the proceeding would have been different absent the attorney’s deficient

                                             4
performance, and it further defined a “reasonable probability” as a “probability sufficient

to undermine confidence in the outcome.” Id. The Court also explained that there is no

prejudice when counsel’s deficient performance deprives the defendant from exercising a

“right” he “does not have.” Id. at 934–35. Its language tracks Lockhart v. Fretwell, 506

U.S. 364 (1993), which explains that prejudice “focuses on . . . whether counsel’s

deficient performance renders the result of the trial unreliable or the proceeding

fundamentally unfair.” Id. at 372. Unreliability and unfairness “do[] not result if the

ineffectiveness of counsel does not deprive the defendant of any substantive or

procedural right to which the law entitles him.” Id. We cannot conclude that the New

Jersey Supreme Court gave an incorrect standard of prejudice.

       Taccetta next argues that the New Jersey Supreme Court’s decision unreasonably

applied the prejudice standard. But the Court held under New Jersey law that Taccetta

was legally prohibited from pleading guilty to aggravated manslaughter in 1993 because

he “would have lied under oath” to do so. Taccetta, 975 A.2d at 935. We cannot review

this determination of state law by a state court, Estelle v. McGuire, 502 U.S. 62, 67–68

(1991), and Taccetta asserts no federal right to plead guilty in this circumstance. Thus it

was not unreasonable to conclude that Taccetta failed to show prejudice if counsel’s

deficient performance merely deprived him of the opportunity to do something that

would have been legally prohibited. See Nix v. Whiteside, 475 U.S. 157, 175 (1986) (a

defendant who is “compelled to desist from perjury . . . has no valid claim that

confidence in the result of his trial has been diminished” and thus cannot claim

prejudice).

                                             5
       Taccetta also contends that the New Jersey Supreme Court decision was based on

an unreasonable determination of fact that he would have lied while entering a guilty plea

to manslaughter. As he points out, it may have been possible to enter a guilty plea to

manslaughter without lying. But we cannot conclude the New Jersey Supreme Court’s

factual determination was unreasonable because Taccetta testified at the PCR hearing that

he would have lied to enter the guilty plea, and the PCR court confirmed this admission.

                                             IV.

       Taccetta next argues that the New Jersey Supreme Court decision was contrary to

clearly established federal law because it created an unconstitutional tension between the

Fifth and Sixth Amendments. On the one hand, if Taccetta did not maintain his

innocence at the PCR hearing and was later granted habeas relief, the prosecution could

use his testimony at the hearing as evidence of guilt in a subsequent trial. On the other, if

he maintained his innocence, Taccetta would be denied relief on the ineffective-

assistance-of-counsel claim. He thus argues that the New Jersey Supreme Court required

him to choose between his Sixth Amendment right to effective assistance of counsel and

his Fifth Amendment right to a fair trial.

       Although we are concerned by this consequence of the Court’s decision, Taccetta

fails to show it violates “clearly established federal law[] as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). He primarily relies on Simmons v.

United States, where the United States Supreme Court held that a defendant’s testimony

in support of a motion to suppress was inadmissible to prove guilt at trial. 390 U.S. 377,

394 (1968). This was because it would be “intolerable” to require a defendant to

                                              6
“surrender[]” the right against self-incrimination in order to assert the Fourth Amendment

right against unreasonable searches. Id. But the Supreme Court later expressed

skepticism about Simmons’s reasoning, McGautha v. California, 402 U.S. 183, 212–13

(1971), vacated, 408 U.S. 941 (1972),1 and acknowledged that its application to the right

to counsel is an open question, United States v. Kahan, 415 U.S. 239, 243 (1974).

Taccetta has therefore failed to show that any constitutional tension created by the New

Jersey Supreme Court’s opinion violated clearly established federal law as determined by

the United States Supreme Court.2




1
 McGautha was vacated on unrelated grounds after Furman v. Georgia, 408 U.S. 238
(1972), which established a national moratorium on capital punishment.
2
 Taccetta also raises a claim under the First Amendment, but it was not argued before the
District Court and is waived.
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