                                PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 14-7297


NICANOR PEREZ RODRIGUEZ,

                Petitioner - Appellant,

           v.

DENNIS BUSH, Warden,

                Respondent - Appellee.



                               No. 15-6716


NICANOR PEREZ RODRIGUEZ,

                Petitioner - Appellant,

           v.

DENNIS BUSH, Warden,

                Respondent - Appellee.



Appeals from the United States District Court for the District
of South Carolina, at Rock Hill.       Terry L. Wooten, Chief
District Judge. (0:13-cv-03401-TLW)


Argued:   September 20, 2016                Decided:   November 23, 2016


Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by published opinion.    Judge Floyd wrote the opinion,
in which Judge Keenan and Judge Thacker joined.


ARGUED: Matthew Jay Kappel, Greenville, South Carolina, for
Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee.  ON
BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief
Deputy Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.




                               2
FLOYD, Circuit Judge:

       Nicanor Perez Rodriguez appeals the order of the district

court below denying his 28 U.S.C. § 2254 petition.

       Immediately     before       Rodriguez’s         state   criminal        trial   for

drug    trafficking,       the    trial    judge        rejected    a    plea   agreement

reached between Rodriguez and the state prosecutor.                             The judge

did so off the record, and gave no reason for this rejection

other than stating that he “was ready to try a case.”                           J.A. 167.

Rodriguez’s     attorney      did    not       object    to   the   rejection      of   the

plea,    nor   did    he    ask     the    judge      to   place    his     reasons     for

rejecting the plea on the record.                    Rodriguez contends that his

counsel’s failure to object constitutes ineffective assistance

of counsel.          He asks this Court for relief under 28 U.S.C.

§ 2254.

       To prevail on an ineffective assistance of counsel claim,

Rodriguez      must    show       (1)     “that      counsel’s          performance     was

deficient” and (2) “that the deficient performance prejudiced

the    defense.”       Strickland         v.    Washington,     466      U.S.    668,   687

(1984).     Rodriguez has not shown that his defense was prejudiced

by his counsel’s alleged error.                    For this reason, we affirm the

decision of the district court.




                                               3
                                                I.

       In    2009,       a   South     Carolina       jury   convicted        Rodriguez    on

multiple counts of drug trafficking.                       The trial court sentenced

Rodriguez to an aggregate term of 45 years of imprisonment.

       In    2010,       Rodriguez      filed        in   state    court   a   motion     for

postconviction relief (the “PCR Motion”).                           In his PCR Motion,

Rodriguez asserted that the trial court violated his federal due

process rights by refusing to allow him to enter a guilty plea

pursuant to a negotiated plea agreement.                          Rodriguez also alleged

that       his     trial     counsel      provided        ineffective      assistance      by

failing to object to the trial court’s rejection of his plea,

which then precluded appellate review of the issue. 1

       The       state     court   held    an   evidentiary         hearing    on   the   PCR

Motion.          At the hearing, Rodriguez’s trial counsel, James Ervin,

testified that prior to Rodriguez’s trial, the state offered

Rodriguez a plea deal with a recommended 25-year sentence, which

Rodriguez rejected.                On the day of trial, the state offered

Rodriguez a new plea agreement with a recommended sentence of 20

years, which Rodriguez accepted.                      The state made similar offers

to Rodriguez’s co-defendants, whose cases were also scheduled to

go to trial that day.

       1
       Rodriguez raised another claim, regarding his counsel’s
failure to inform him of his right to appeal, but this claim is
not relevant here.



                                                4
       The trial judge accepted Rodriguez’s co-defendants’s pleas.

The    prosecutor     and    Ervin   then       approached   the   trial   judge    in

chambers to inform him of Rodriguez’s plea agreement.                             Ervin

testified that the trial judge said that “he was not going to

accept the plea and that he was ready to try a case this week or

that week.”       J.A. 167.          Ervin testified, “I’d never had that

happen before. . . . So I was, myself, professionally confused

as to how to proceed.”               J.A. 168.        Ervin explained that he

attempted to persuade the judge to accept the plea deal, noting

that    the   judge    had    just    accepted      Rodriguez’s     co-defendants’

similar pleas.        Ervin did not, however, object to or mention the

court’s rejection of the plea agreement on the record.                             The

trial judge never stated on the record why he refused the plea

agreement.

       The state court denied the PCR Motion as relevant to this

appeal.       It identified the relevant issues presented as:

       (1)    Ineffective assistance of counsel:
                   . . . .
                   b. Failure to object to the trial judge’s
                   decision    not    to   accept the   plea
                   recommendation.

       (2)    Trial   judge’s  refusal   to   accept  the                  plea
              recommendation was a denial of due process.

J.A. 190.       The court held that Rodriguez failed to meet his

burden to show that Ervin should have objected to the judge’s

refusal to accept the plea agreement, and that Rodriguez could


                                            5
not     prove   prejudice.            Additionally,        the      court    held     that

Rodriguez’s due process rights had not been violated.

      Rodriguez then filed a petition for a writ of certiorari in

the Supreme Court of South Carolina, challenging the denial of

the PCR motion.            In a summary opinion, the Supreme Court of

South     Carolina       denied   Rodriguez’s       petition     for   certiorari       on

this issue.        See Rodriguez v. State, No. 2013-MO-023, 2013 WL

8596567 (S.C. Aug. 14, 2013) (per curiam). 2

      Rodriguez      then     filed    the    instant     § 2254      petition.       The

district court below denied his petition.                      Rodriguez then filed

a motion for a certificate of appealability, which this Court

granted.



                                          II.

                                             A.

      This Court reviews de novo the district court’s decision

denying Rodriguez’s § 2254 petition.                     Grueninger v. Dir., Va.

Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016).                          When a state

court has adjudicated a § 2254 petitioner’s claim on the merits,

however,     the     §    2254    petition        may   only   be    granted     if   the

adjudication:



      2Rodriguez also presented the direct appeal issue,                              not
relevant here, which the court considered and dismissed.



                                             6
       (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).          To   establish     that      a    state       court

unreasonably applied federal law, a petitioner must demonstrate

“that the state court’s ruling on the claim being presented in

federal court 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 demonstrate ineffective assistance of counsel, Rodriguez

must show (1) “that counsel’s performance was deficient,” and

(2)    “that    the    deficient    performance         prejudiced       the    defense.”

Strickland, 466 U.S. at 687.                 Because the state court addressed

the    ineffective      assistance       claim     in   denying   Rodriguez’s           PCR

Motion, Rodriguez must establish under § 2254(d) that the state

court    unreasonably         applied    Strickland.        The   inquiry        is    thus

“whether there is any reasonable argument that counsel satisfied

Strickland’s         deferential   standard.”           Harrington,       562    U.S.    at

105.     “The standards created by Strickland and § 2254(d) are

both highly deferential and when the two apply in tandem, review



                                             7
is   doubly   so.”      Id.    (internal        quotation    marks      and    citations

omitted).

       Although Strickland is a two-prong test, “a court need not

determine     whether     counsel’s    performance          was    deficient      before

examining the prejudice suffered by the defendant as a result of

the alleged deficiencies. . . . If it is easier to dispose of an

ineffectiveness      claim      on   the    ground    of     lack      of     sufficient

prejudice, . . . that course should be followed.”                            Strickland,

466 U.S. at 697.          Here, Rodriguez’s claim can be disposed of on

the “prejudice” prong.

       To prove prejudice, “[t]he defendant must show that there

is     a   reasonable         probability        that,      but        for     counsel’s

unprofessional errors, the result of the proceeding would have

been   different.         A   reasonable        probability       is    a    probability

sufficient to undermine confidence in the outcome.”                          Id. at 694.

A defendant is not prejudiced if his counsel fails to make an

objection     that   is    “wholly    meritless       under       current      governing

law[.]”    Lockhart v. Fretwell, 506 U.S. 364, 374 (1993).



                                           B.

       Rodriguez contends that his counsel was ineffective because

he failed to object to the rejection of the plea agreement and

preserve the issue for appellate review.                      He argues that his

counsel should have objected and alleged a violation of federal

                                           8
due process.           We hold, however, that an objection claiming a

violation of federal due process rights would, in this case,

have       been    wholly   meritless. 3       The   Supreme   Court   has   clearly

stated that there is no federal right that a plea be accepted by

a judge.          Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012).              As a

result, Rodriguez was not prejudiced by his counsel’s failure to

object.

       Rodriguez’s claim that the judge’s rejection of his plea

violated his federal due process rights is based on language in

Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello

states, ”There is, of course, no absolute right to have a guilty

plea accepted.          A court may reject a plea in exercise of sound

judicial          discretion.”      Id.    (citations      omitted).     Rodriguez

asserts that this statement creates a federal due process right

that a plea only be rejected in the “exercise of sound judicial

discretion.”




       3
       Rodriguez also briefly argues that Rule 11 of the Federal
Rules of Criminal Procedure regulates a state judge’s ability to
reject a plea agreement.     This argument is without merit as
well.   Rodriguez’s trial was a state trial.   The Federal Rules
of Criminal Procedure apply to federal trials, not state trials.
See Fed.R.Crim.P. 1(a)(1)(“These rules govern the procedure in
all criminal proceedings in the United States district courts,
the United States courts of appeals, and the Supreme Court of
the United States.”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th
Cir. 1972) (stating that state courts are not bound by Rule 11).



                                           9
     This contention, however, is misplaced.                 This reading of

Santobello is itself untenable, and moreover, in cases after

Santobello, the Supreme Court has made clear that there is no

federal due process right that a plea be accepted, stating, “a

defendant has no right to be offered a plea, nor a federal right

that the judge accept it.”           Frye, 132 S. Ct. at 1410 (citations

omitted).    Notably, the Court even cited Santobello in support

of this proposition.       See id.

     This same language was repeated in Lafler v. Cooper, 132 S.

Ct. 1376 (2012).      See id. at 1387 (quoting Frye, 132 S. Ct. at

1410).      In   Lafler,    the      Supreme      Court   explained   how   the

Strickland standard for ineffective assistance should be applied

when an attorney errs in advising a defendant not to accept a

plea agreement.    Id.     The Court went on to explain, “If no plea

offer is made, or a plea deal is accepted by the defendant but

rejected by the judge, the issue raised here simply does not

arise.”     Id. (emphasis added).             This further demonstrates that

there is no due process right that a plea be accepted by a

judge.

     In addition, this Court has also acknowledged that there is

no   constitutional    right      that    a     plea   bargain   be   accepted,

stating, “[a] defendant has no constitutional right to a plea

bargain.     Nor is there a constitutional right to have a plea

bargain, once made, accepted by the court. . . . [T]he court may

                                         10
accept         or    reject    the       plea       at    its   discretion.”        Fields     v.

Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992)

(citations           omitted).           Again,          Santobello   was   cited     for   this

proposition.             See id.

       Based on the above interpretations of Santobello by the

Supreme Court and by this Court, there is not a valid argument

that       Santobello       announced           a    constitutional     due    process      right

that       a   judge      accept     a    plea       bargain. 4       For   this   reason,     an

objection to a judge’s plea rejection based on Santobello does

not have merit.               Rodriguez was therefore not prejudiced by his

attorney’s failure to make this meritless objection.



                                                    III.

       Rodriguez has not demonstrated prejudice in this case.                                 The

objection           he   contends        that       his   attorney    should   have    made    is

without merit.             As a result, we hold that the state PCR court’s

determination that Rodriguez was not prejudiced is reasonable,

and the district court below did not err in denying Rodriguez’s



       4
       Rodriguez also points to Seventh Circuit precedent for his
contention that Santobello created a federal due process right
that a plea be accepted; however, the cases he cites involve
appeals from federal district courts (rather than state courts),
and the interpretation of Rule 11.    None of these cases invoke
due process in their analysis.      See, e.g., United States v.
Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v.
Davis, 516 F.2d 574, 578 (7th Cir. 1975).



                                                     11
request for relief under 28 U.S.C. § 2254.   Accordingly, the

judgment below is

                                                    AFFIRMED.




                             12
