            If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                 revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



PEOPLE OF THE STATE OF MICHIGAN,                                    FOR PUBLICATION
                                                                    May 23, 2019
               Plaintiff-Appellant,                                 9:10 a.m.

v                                                                   No. 332491
                                                                    Wayne Circuit Court
JUAN T. WALKER,                                                     LC No. 01-003031-FC

               Defendant-Appellee.



                                         ON REMAND


Before: CAVANAGH, P.J., and BORRELLO and CAMERON, JJ.

CAMERON, J.

         On remand, our Supreme Court has directed this Court to consider whether the decision
in Lafler v Cooper, 566 US 156; 132 S Ct 1376; 182 L Ed 2d 398 (2012), should be applied
retroactively to allow defendant to successfully assert that his trial counsel provided ineffective
assistance of counsel in the plea bargaining context by failing to notify defendant of a plea offer
before trial. We hold that Lafler applies retroactively because the case does not announce a new
rule. Therefore, applying the Lafler decision here, we affirm the trial court’s order granting
relief to defendant.

                     I. FACTUAL AND PROCEDURAL BACKGROUND

       In 2001, a jury convicted defendant of first-degree premeditated murder, MCL 750.316,
and possession of a firearm during the commission of a felony (felony-firearm), MCL 750.227b.
Defendant was originally sentenced to life imprisonment without parole for the first-degree
premeditated murder conviction to be served consecutive to two years’ imprisonment for the
felony-firearm conviction. This Court affirmed defendant’s convictions and sentences on direct
review. People v Walker, unpublished per curiam opinion of the Court of Appeals, issued March
1, 2005 (Docket No. 239711) (Walker I).




                                                -1-
        In 2011, defendant moved for relief from judgment in the trial court on the ground that
his trial counsel was ineffective for not informing defendant of the prosecutor’s pretrial plea
offer to second-degree murder and felony-firearm, with a sentence agreement of 25 to 50 years’
imprisonment for second-degree murder and two years’ imprisonment for felony-firearm. The
trial court denied defendant’s motion for relief from judgment. Defendant filed a delayed
application for leave to appeal, which this Court denied “for failure to meet the burden of
establishing entitlement to relief under MCR 6.508(D).” People v Walker, unpublished order of
the Court of Appeals, entered May 21, 2012 (Docket No. 307480). Defendant sought leave to
appeal this Court’s order in the Michigan Supreme Court, which held defendant’s application in
abeyance pending the decision in Burt v Titlow, 571 US 12; 134 S Ct 10; 187 L Ed 2d 348
(2013). People v Walker, 829 NW2d 217 (Mich, 2013). After Burt was decided, our Supreme
Court remanded the instant case to the trial court for a Ginther1 hearing, with these instructions:

          . . . we REMAND this case to the Wayne Circuit Court for an evidentiary
         hearing, pursuant to [Ginther], as to the defendant’s contention that his trial
         counsel was ineffective for failing to inform him of the prosecutor’s September
         26, 2001 offer of a plea bargain to second-degree murder and a sentence
         agreement of 25 to 50 years. See Missouri v Frye, 566 US 134; 132 S Ct 1399;
         182 L Ed 2d 379 (2012). To prevail on a claim of ineffective assistance of
         counsel, a defendant must show: (1) that his attorney’s performance was
         objectively unreasonable in light of prevailing professional norms; and (2) that he
         was prejudiced by the deficient performance. People v Carbin, 463 Mich 590,
         599-600; 623 NW2d 884 (2001). In order to establish the prejudice prong of the
         inquiry under these circumstances, the defendant must show that: (1) he would
         have accepted the plea offer; (2) the prosecution would not have withdrawn the
         plea offer in light of intervening circumstances; (3) the trial court would have
         accepted the defendant’s plea under the terms of the bargain; and (4) the
         defendant’s conviction or sentence under the terms of the plea would have been
         less severe than the conviction or sentence that was actually imposed. Lafler v
         Cooper, 566 US 156, 164; 132 S Ct 1376; 182 L Ed 2d 398 (2012).

                If the defendant establishes that his trial counsel was ineffective in failing
         to convey the plea bargain as outlined above, the defendant shall be given the
         opportunity to establish his entitlement to relief pursuant to MCR 6.508(D). If the
         defendant successfully establishes his entitlement to relief pursuant to MCR
         6.508(D), the trial court must determine whether the remedy articulated in Lafler
         v Cooper should be applied retroactively to this case, in which the defendant’s
         conviction became final in October 2005. [People v Walker, 497 Mich 894, 894-
         895 (2014).]

       On remand, the trial court held a Ginther hearing, after which the trial court entered an
order holding that defendant was denied the effective assistance of counsel when his trial


1
    People v Ginther, 390 Mich 436; 212 NW2d 922 (1973).


                                                 -2-
attorney failed to inform defendant of the plea offer. The next step in the procedural history was
recounted in this Court’s October 12, 2017 opinion as follows:

       Defendant then filed another motion for relief from judgment in the trial court, as
       required by our Supreme Court’s remand order, and the trial court granted that
       motion and ordered the prosecution to reoffer defendant the plea deal. Defendant
       then pleaded guilty and was resentenced to 25 to 50 years’ imprisonment for
       second-degree murder and two years’ imprisonment for felony-firearm. [People v
       Walker, unpublished per curiam opinion of the Court of Appeals, issued October
       12, 2017 (Docket No. 332491) (Walker II), rev’d in part & remanded 919 NW2d
       401 (Mich, 2018).]

         In September 2016, this Court granted the prosecution’s delayed application for leave to
appeal, which challenged the trial court’s order granting defendant’s motion for relief from
judgment. People v Walker, unpublished order of the Court of Appeals, entered September 9,
2016 (Docket No. 332491). In October 2017, this panel issued an opinion reversing the trial
court’s order and remanding the case for the reinstatement of defendant’s original convictions
and sentences. Walker II, unpub op at 1, 9. This Court agreed with the prosecutor’s argument
“that defendant was afforded the effective assistance of counsel because he was not prejudiced,
i.e., he did not demonstrate that there was a reasonable probability that he would have accepted
the plea offer had it been made known to him.” Id. at 3.2 With respect to the prejudice
requirement, this Court was “left with a definite and firm conviction that the trial [court] made a
mistake in its findings, failed to engage in a proper analysis under Lafler, and thereby abused its
discretion when it granted defendant’s motion for relief from judgment.” Id. at 7. That is, “the
trial court clearly erred in finding a reasonable probability defendant would have accepted the
plea offer. Therefore, defendant did not satisfy his burden in proving ineffective assistance of
counsel, and the trial court abused its discretion when it granted defendant’s motion for relief
from judgment.” Id. at 9.

        Our Supreme Court entered an order reversing in part this Court’s decision and
remanding the case to this Court for consideration of whether Lafler applies retroactively to this
case; in particular, our Supreme Court’s order stated as follows:

              On order of the Court, the application for leave to appeal the October 12,
       2017 judgment of the Court of Appeals is considered and, pursuant to MCR
       7.305(H)(1), in lieu of granting leave to appeal, we REVERSE that part of the
       judgment of the Court of Appeals holding that the trial court clearly erred in
       finding a reasonable probability that the defendant would have accepted the plea


2
  The prosecutor made only a cursory argument regarding the first prong of defendant’s
ineffective assistance claim, i.e., whether defense counsel’s performance was deficient. This
panel found no clear error in the trial court’s finding that defense counsel had failed to inform
defendant of the plea offer, and therefore, the trial court’s determination that the deficient
performance prong was satisfied was left undisturbed. Walker II, unpub op at 4 n 4.


                                                -3-
       offer, and we REMAND this case to that court for consideration of whether Lafler
       v Cooper, 566 US 156; 132 S Ct 1376; 182 L Ed 2d 398 (2012), should be applied
       retroactively to this case, in which the defendant’s convictions became final in
       2005.

                The Court of Appeals found clear error in the trial court’s memorandum
       opinion and in its statements during oral argument at a subsequent hearing.
       However, in its review of the record, the Court of Appeals failed to recognize
       that, at the end of that hearing, the trial court quoted the applicable standard from
       Lafler and unequivocally found that there was a reasonable probability that the
       defendant would have accepted the plea offer. This finding – made by the trial
       judge who presided over the trial and the evidentiary hearing – is supported by the
       record, and we are not “left with a definite and firm conviction that the trial court
       made a mistake.” People v Armstrong, 490 Mich 281, 289 (2011). [People v
       Walker, 919 NW2d 401, 401 (Mich, 2018) (Walker III).]

On remand, we must determine whether Lafler should apply retroactively to this case. If it does,
then we must affirm the trial court’s order finding that defendant was denied the effective
assistance of counsel when his trial attorney failed to inform defendant of the plea offer.

                                         II. ANALYSIS

        “The issue whether a United States Supreme Court decision applies retroactively presents
a question of law that we review de novo. We review for an abuse of discretion the trial court’s
ultimate ruling on a motion for relief from a judgment.” People v Gomez, 295 Mich App 411,
414; 820 NW2d 217 (2012) (citation omitted).

       Our Supreme Court has recently explained:

               Ordinarily, judicial decisions are to be given complete retroactive effect.
       But judicial decisions which express new rules normally are not applied
       retroactively to other cases that have become final. New legal principles, even
       when applied retroactively, do not apply to cases already closed, because at some
       point, the rights of the parties should be considered frozen and a conviction final.
       Thus, as to those cases that have become final, the general rule allows only
       prospective application. [People v Barnes, 502 Mich 265, 268; 917 NW2d 577
       (2018) (quotation marks, ellipsis, and citations omitted).]

In Barnes, 502 Mich at 269, our Supreme Court quoted from Montgomery v Louisiana, 577 US
___, ___; 136 S Ct 718, 728; 193 L Ed 2d 599 (2016), for the most recent explanation of the
federal standard for retroactivity:

       Justice O’Connor’s plurality opinion in Teague v Lane, 489 US 288[; 109 S Ct
       1060; 103 L Ed 2d 334] (1989), set forth a framework for retroactivity in cases on
       federal collateral review. Under Teague, a new constitutional rule of criminal
       procedure does not apply, as a general matter, to convictions that were final when
       the new rule was announced. Teague recognized, however, two categories of

                                               -4-
       rules that are not subject to its general retroactivity bar. First, courts must give
       retroactive effect to new substantive rules of constitutional law. Substantive rules
       include rules forbidding criminal punishment of certain primary conduct, as well
       as rules prohibiting a certain category of punishment for a class of defendants
       because of their status or offense. Second, courts must give retroactive effect to
       new watershed rules of criminal procedure implicating the fundamental fairness
       and accuracy of the criminal proceeding. [Barnes, 502 Mich at 269, quoting
       Montgomery, 577 US at ___; 136 S Ct at 728 (brackets in original; quotation
       marks, ellipsis, and citations omitted).]

        In short, “Teague makes the retroactivity of [the United States Supreme Court’s] criminal
procedure decisions turn on whether they are novel.” Chaidez v United States, 568 US 342, 347;
133 S Ct 1103; 185 L Ed 2d 149 (2013). Absent one of the two exceptions noted above, a new
rule announced by the United States Supreme Court may not collaterally benefit a person whose
convictions are already final. Id. “Only when [the United States Supreme Court] appl[ies] a
settled rule may a person avail herself of the decision on collateral review.” Id.

        Therefore, the first question under Teague is whether a judicial decision establishes a new
rule. Barnes, 502 Mich at 269, citing People v Maxson, 482 Mich 385, 388; 759 NW2d 817
(2008). A judicial decision’s rule is considered to be new if “it breaks new ground or imposes a
new obligation on the [s]tates or the [f]ederal [g]overnment.” Maxson, 482 Mich at 388
(quotation marks and citation omitted); see also Chaidez, 568 US at 347. In other words, “a case
announces a new rule if the result was not dictated by precedent existing at the time the
defendant’s conviction became final.” Chaidez, 568 US at 347 (quotation marks and citation
omitted). “And a holding is not so dictated . . . unless it would have been apparent to all
reasonable jurists.” Id. (quotation marks and citation omitted).

        But a case does not announce a new rule if the case is merely applying a “principle that
governed a prior decision to a different set of facts.” Id. at 347-348 (quotation marks and
citations omitted). “[W]hen all [the United States Supreme Court does] is apply a general
standard to the kind of factual circumstances it was meant to address, [the Court] will rarely state
a new rule for Teague purposes.” Id. at 348. Therefore, “garden-variety applications of the test
in [Strickland] for assessing claims of ineffective assistance of counsel do not produce new
rules.” Id. The Strickland standard “provides sufficient guidance for resolving virtually all
claims of ineffective assistance, even though their particular circumstances will differ.” Id.
(quotation marks and citation omitted). The United States Supreme Court has therefore “granted
relief under Strickland in diverse contexts without ever suggesting that doing so required a new
rule.” Id.

        In Chaidez, 568 US at 344, the United States Supreme Court considered the retroactivity
of its decision in Padilla v Kentucky, 559 US 356; 130 S Ct 1473; 176 L Ed 2d 284 (2010), in
which the Supreme Court “held that the Sixth Amendment requires an attorney for a criminal
defendant to provide advice about the risk of deportation arising from a guilty plea.” The
Supreme Court concluded in Chaidez that Padilla announced a new rule because the holding in
Padilla was not “apparent to all reasonable jurists” before Padilla was decided. Chaidez, 568
US at 354 (quotation marks and citation omitted). Indeed, there had been no United States
Supreme Court precedent before Padilla that dictated the rule that the Strickland test applied to a

                                                -5-
defense counsel’s failure to advise the defendant about non-criminal consequences of
sentencings, like the possibility of deportation. Id. at 353. The Supreme Court stated in Chaidez
that “Padilla would not have created a new rule had it only applied Strickland’s general standard
to yet another factual situation—that is, had Padilla merely made clear that a lawyer who
neglects to inform a client about the risk of deportation is professionally incompetent.” Id. at
348-349. Padilla did more than this, however; it considered a “threshold question[]” about
whether deportation advice fell within the scope of the Sixth Amendment right to counsel. Id. at
349. “In other words, prior to asking how the Strickland test applied (‘Did this attorney act
unreasonably?’), Padilla asked whether the Strickland test applied (‘Should we even evaluate if
this attorney acted unreasonably?’).” Id. The Supreme Court’s determination in Padilla that the
Strickland test applied thus constituted a new rule. Id. at 349, 358. Therefore, under Teague,
defendants whose convictions became final before Padilla was issued could not benefit from the
holding in Padilla. Id. at 358.

        Our Supreme Court has directed this Court to consider whether Lafler’s holding applies
retroactively. In doing so, this Court must consider, under the federal retroactivity jurisprudence
summarized earlier, whether Lafler created a new rule of constitutional law.

        In Lafler, the defendant rejected a plea offer on the advice of his attorney. Lafler, 566 US
at 160. After the plea offer was rejected, the defendant had a full and fair jury trial that resulted
in a guilty verdict, and the defendant received a harsher sentence than what was offered in the
rejected plea bargain. Id. The parties agreed in Lafler that the defense counsel’s performance
was deficient when he advised the defendant to reject the plea offer. Id. at 163. The Supreme
Court noted in Lafler that the Court had held in Hill v Lockhart, 474 US 52; 106 S Ct 366; 88 L
Ed 2d 203 (1985), that the Strickland test applied “to challenges to guilty pleas based on
ineffective assistance of counsel.” Lafler, 566 US at 163, quoting Hill, 474 US at 58. The
Supreme Court stated that “[t]he question for this Court is how to apply Strickland’s prejudice
test where ineffective assistance results in a rejection of the plea offer and the defendant is
convicted at the ensuing trial.” Lafler, 566 US at 163 (emphasis added). The Supreme Court
quoted from Strickland’s prejudice test and then noted that, while Hill involved a “claim that
ineffective assistance led to the improvident acceptance of a guilty plea,” in Lafler, “the
ineffective advice led not to an offer’s acceptance but to its rejection.” Id. The Supreme Court
then explained how the Strickland prejudice test was to be applied to the circumstances in Lafler:

       In these circumstances a defendant must show that but for the ineffective advice
       of counsel there is a reasonable probability that the plea offer would have been
       presented to the court (i.e., that the defendant would have accepted the plea and
       the prosecution would not have withdrawn it in light of intervening
       circumstances), that the court would have accepted its terms, and that the
       conviction or sentence, or both, under the offer’s terms would have been less
       severe than under the judgment and sentence that in fact were imposed. Here, the
       Court of Appeals for the Sixth Circuit agreed with that test for Strickland
       prejudice in the context of a rejected plea bargain. This is consistent with the test
       adopted and applied by other appellate courts without demonstrated difficulties or
       systemic disruptions. [Id. at 164.]



                                                -6-
        The Supreme Court in Lafler rejected arguments that “there can be no finding of
Strickland prejudice arising from plea bargaining if the defendant is later convicted at a fair
trial.” Id. “The Sixth Amendment requires effective assistance of counsel at critical stages of a
criminal proceeding[,]” including pretrial critical stages of the criminal proceeding. Id. at 165.
Moreover, the Supreme Court stated that it had “not followed a rigid rule that an otherwise fair
trial remedies errors not occurring at the trial itself. It has inquired instead whether the trial
cured the particular error at issue.” Id. In Lafler, the trial did not cure the error but “caused the
injury from the error.” Id. at 166. “Even if the trial itself is free from constitutional flaw, the
defendant who goes to trial instead of taking a more favorable plea may be prejudiced from
either a conviction on more serious counts or the imposition of a more severe sentence.” Id.

        The Supreme Court in Lafler also rejected an argument that providing a remedy for the
type of error that occurred in Lafler would “open the floodgates to litigation by defendants
seeking to unsettle their convictions.” Id. at 172. The Supreme Court noted that “[c]ourts have
recognized claims of this sort for over 30 years, and yet there is no indication that the system is
overwhelmed by these types of suits or that defendants are receiving windfalls as a result of
strategically timed Strickland claims.” Id. (citation omitted).

       In applying its holding in Lafler to the facts of that case, the Supreme Court noted that the
defendant was bringing “a federal collateral challenge to a state-court conviction.” Id. at 172.

       Under [the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)], a
       federal court may not grant a petition for a writ of habeas corpus unless the state
       court’s adjudication on the merits was “contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States.” 28 USC 2254(d)(1). A decision is contrary to clearly
       established law if the state court applies a rule that contradicts the governing law
       set forth in Supreme Court cases. [Lafler, 566 US at 172-173 (quotation marks,
       brackets, and citation omitted).]

The Supreme Court concluded in Lafler that AEDPA did not present a bar to granting relief in
that case because the state appellate court had failed to apply Strickland when assessing the
defendant’s ineffective assistance of counsel claim. Id. at 173. “By failing to apply Strickland to
assess the ineffective-assistance-of-counsel claim [the defendant] raised, the state court’s
adjudication was contrary to clearly established federal law.” Id. The defendant satisfied the
Strickland test, and the parties had conceded the existence of deficient performance. Id. at 174.

               As to prejudice, [the defendant] has shown that but for counsel’s deficient
       performance there is a reasonable probability he and the trial court would have
       accepted the guilty plea. In addition, as a result of not accepting the plea and
       being convicted at trial, [the defendant] received a minimum sentence 3½ times
       greater than he would have received under the plea. The standard for ineffective
       assistance under Strickland has thus been satisfied. [Id. (citation omitted).]

As a remedy, the Supreme Court ordered the prosecutor to reoffer the plea agreement to the
defendant, and if the defendant accepted the plea offer, the state trial court was to “exercise its
discretion in determining whether to vacate the convictions and resentence [the defendant]

                                                -7-
pursuant to the plea agreement, to vacate only some of the convictions and resentence [the
defendant] accordingly, or to leave the convictions and sentence from trial undisturbed.” Id.

      In a dissenting opinion in Lafler, Justice Scalia opined that “the Court today opens a
whole new field of constitutionalized criminal procedure: plea-bargaining law.” Id. at 175
(SCALIA, J., dissenting). Justice Scalia explained:

               [The defendant] received a full and fair trial, was found guilty of all
       charges by a unanimous jury, and was given the sentence that the law prescribed.
       The Court nonetheless concludes that [the defendant] is entitled to some sort of
       habeas corpus relief (perhaps) because his attorney’s allegedly incompetent
       advice regarding a plea offer caused him to receive a full and fair trial. That
       conclusion is foreclosed by our precedents. Even if it were not foreclosed, the
       constitutional right to effective plea-bargainers that it establishes is at least a new
       rule of law, which does not undermine the [state appellate court’s] decision and
       therefore cannot serve as the basis for habeas relief. And the remedy the Court
       announces – namely, whatever the state trial court in its discretion prescribes,
       down to and including no remedy at all – is unheard-of and quite absurd for
       violation of a constitutional right. I respectfully dissent. [Id. at 176.]

Justice Scalia found it “apparent from Strickland that bad plea bargaining has nothing to do with
ineffective assistance of counsel in the constitutional sense.” Id. at 177.

       Because the right to effective assistance has as its purpose the assurance of a fair
       trial, the right is not infringed unless counsel’s mistakes call into question the
       basic justice of a defendant’s conviction or sentence. That has been, until today,
       entirely clear. A defendant must show that counsel’s errors were so serious as to
       deprive the defendant of a fair trial, a trial whose result is reliable. Impairment of
       fair trial is how we distinguish between unfortunate attorney error and error of
       constitutional significance. [Id. at 178 (citations omitted).]

Justice Scalia further opined that AEDPA barred granting relief given the “[n]ovelty” of the
holding in Lafler. Id. at 181. Because the Supreme Court had never held that Strickland
prejudice could be established in the circumstances presented in Lafler, Justice Scalia stated that
the Supreme Court violated AEDPA in granting habeas relief. Id. at 183. The portion of Justice
Scalia’s dissent summarized above was joined by Chief Justice Roberts and Justice Thomas. See
id. at 175. Justice Alito wrote a separate dissent in which he expressed agreement with this
analysis of Justice Scalia. See id. at 187 (ALITO, J., dissenting).3



3
  To be sure, Justice Scalia’s dissent in Lafler suggested that the holding in Lafler created a new
rule. See Lafler, 566 US at 176-178, 183 (SCALIA, J., dissenting). But the majority in Lafler did
not share this view, given the majority’s analysis and conclusion that AEDPA did not bar
granting relief. Although dissenting opinions may be considered in assessing whether a case
created a new rule, see Chaidez, 568 US at 354 n 11, “[d]issents have been known to exaggerate


                                                -8-
        Neither the United States Supreme Court nor the Michigan appellate courts have
addressed whether Lafler applies retroactively. See People v Hobson, 500 Mich 1005, 1006
(2017) (MARKMAN, C.J., concurring) (“This Court has not specifically assessed the retroactivity
of [Lafler].”). In their supplemental briefs on remand, the parties have brought to this Court’s
attention the opinions of lower federal courts as well as a Utah Supreme Court opinion. “While
the decisions of lower federal courts and other state courts are not binding on this Court, they
may be considered as persuasive authority.” People v Woodard, 321 Mich App 377, 385 n 2;
909 NW2d 299 (2017).

        The lower federal courts have concluded that Lafler did not create a new rule of
constitutional law. See In re Liddell, 722 F3d 737, 738 (CA 6, 2013) (citing cases in support of
the proposition that every federal circuit to consider the issue has concluded that Lafler did not
create a new rule of constitutional law). Of particular note is the analysis in In re Perez, 682 F3d
930, 932-933 (CA 11, 2012), concluding that Lafler and its companion case, Frye, did not
announce new rules. The Perez court noted that “the Supreme Court’s language in Lafler and
Frye confirm[s] that the cases are merely an application of the Sixth Amendment right to
counsel, as defined in Strickland, to a specific factual context.” Id. at 932. “The Court has long
recognized that Strickland’s two-part standard applies to ‘ineffective assistance of counsel claims
arising out of the plea process.’ ” Id., citing Hill, 474 US at 57.

       The Court has also said that Strickland itself clearly establishes Supreme Court
       precedent for evaluating ineffective assistance of counsel claims under AEDPA.
       Because we cannot say that either Lafler or Frye breaks new ground or imposes a
       new obligation on the State or Federal Government, they did not announce new
       rules. Put another way, Lafler and Frye are not new rules because they were
       dictated by Strickland. [Perez, 682 F3d at 932-933 (quotation marks and citations
       omitted).]

Further, the Perez court concluded that

       any doubt as to whether Frye and Lafler announced new rules is eliminated
       because the Court decided these cases in the post conviction [sic] context.
       Indeed, in Lafler, the Supreme Court held that the state court’s decision was
       “contrary to clearly established [federal] law” under AEDPA. To be “clearly
       established federal law” within the meaning of AEDPA, the rule applied in Lafler
       must, by definition, have been an old rule within the meaning of Teague. . . .
       [T]he [Supreme] Court rarely, if ever, announces and retroactively applies new
       rules of constitutional criminal procedure in the postconviction context. Given
       the general policy of not announcing or applying new rules of constitutional law



the novelty of majority opinions; and the mere existence of a dissent, like the existence of
conflicting authority in state or lower federal courts, does not establish that a rule is new[,]” id.




                                                -9-
       in habeas proceedings reflected in Teague and AEDPA, it stands to reason that the
       holdings in Frye and Lafler do not constitute new rules of constitutional law. [Id.
       at 933-934 (citations omitted).]

        Other lower federal court opinions likewise reason that Lafler did not create a new rule.
See, e.g., Gallagher v United States, 711 F3d 315, 315-316 (CA 2, 2013) (“Neither Lafler nor
Frye announced a new rule of constitutional law: Both are applications of [Strickland].”)
(quotation marks omitted); Williams v United States, 705 F3d 293, 294 (CA 8, 2013) (“We . . .
conclude, as have the other circuit courts of appeals that have addressed the issue, that neither
[Lafler] nor Frye announced a new rule of constitutional law.”); Buenrostro v United States, 697
F3d 1137, 1140 (CA 9, 2012) (“[N]either Frye nor Lafler . . .decided a new rule of constitutional
law. The Supreme Court in both cases merely applied the Sixth Amendment right to effective
assistance of counsel according to the test articulated in [Strickland] and established in the plea-
bargaining context in [Hill].”); In re King, 697 F3d 1189, 1189 (CA 5, 2012) (“[W]e agree with
the Eleventh Circuit’s determination in [Perez] that [Lafler] and Frye did not announce new rules
of constitutional law because they merely applied the Sixth Amendment right to counsel to a
specific factual context.”); but see Berry v United States, 884 F Supp 2d 453, 462 (ED Va, 2012),
app dis 490 F Appx 583 (CA 4, 2012) (“Although Hill and its progeny provided some foundation
for the Court’s decisions in Lafler and Frye, it did not dictate the result in these cases, nor did it
foreclose all possibility of an alternative decision.”).

       Contrary to the overwhelming view of the lower federal courts, the Utah Supreme Court
has concluded that “Lafler and Frye announced a new rule[.]” Winward v Utah, 355 P3d 1022,
1023; 2015 UT 61 (2015). The Utah Supreme Court acknowledged that its conclusion was “in
tension with the federal circuit courts’ unanimous determination that Lafler and Frye did not
announce a ‘new rule[.]’ ” Id. at 1026 n 3 (citing cases). The Utah Supreme Court explained its
reasoning as follows:

               The key holding of Lafler and Frye is that a defendant who has been
       convicted as the result of a fair trial or voluntary plea, and sentenced through a
       constitutionally immaculate sentencing process, can claim to have been
       prejudiced by his counsel’s ineffectiveness during plea bargaining. And this key
       holding is simply not to be found in the Supreme Court’s prior case law – not
       explicitly, and not by clear implication. [Id. at 1027.]

In other words, “[t]he holding of Lafler – that prejudice is possible even if a defendant has
received a fair trial – decides an issue neither contemplated nor addressed by Strickland.” Id. at
1028. Also, before Lafler, the United States Supreme Court’s cases expanding on the Strickland
prejudice test “did not dictate the result in Lafler and Frye.” Id. For example, although the
Supreme Court’s opinion in Hill “established that prejudice exists where a defendant accepts a
plea bargain because of ineffective assistance, and thus waives his right to trial[,]” id., the Hill
opinion “did not establish the converse: that prejudice exists when a defendant rejects a plea
bargain because of ineffective assistance, thereby exercising his right to trial.” Id. “In short,”
the Utah Supreme Court explained, “we cannot conclude that Lafler and Frye merely applied the
principles of old cases to new facts, as the ‘dictated by precedent’ standard requires.” Id.



                                                -10-
         We find the analyses of the lower federal courts, such as in Perez, more persuasive than
that of the Utah Supreme Court in Winward. The Lafler opinion did not create a new rule—it
merely determined how the Strickland test applied to the specific factual context concerning plea
bargaining. Unlike in Padilla, there was no threshold question in Lafler concerning whether the
Strickland test applied. The Supreme Court’s analysis in Lafler indicated that the “rule” being
applied was the test for ineffective assistance of counsel set forth in Strickland and applied to the
plea process in Hill. Although Lafler was the first case in which the Supreme Court applied the
Strickland prejudice test to the specific factual context presented in Lafler, i.e., where a
defendant rejected a plea offer due to ineffective assistance of counsel and then received a fair
trial, this does not change the fact that the same rule set forth in Strickland was being applied to a
new factual context in Lafler. The application of the Strickland test in Lafler therefore did not
produce a new rule of constitutional law. See Chaidez, 568 US at 348.

         This conclusion is reinforced by the fact that the defendant in Lafler was seeking federal
collateral review of a state-court conviction. By concluding that AEDPA did not bar granting
relief to the defendant, the Supreme Court made clear that Strickland was the “clearly established
[f]ederal law,” Lafler, 566 US at 172-173, citing 28 USC 2254(d)(1), that was being applied in
Lafler. “ ‘[C]learly established’ law is not ‘new’ within the meaning of Teague.” Chaidez, 568
US at 349 n 4. Therefore, because the Supreme Court in Lafler held that AEDPA did not bar
granting relief to the defendant in that case, Lafler, 566 US at 173, it follows that the Supreme
Court was applying “clearly established [f]ederal law,” i.e., the Sixth Amendment right to
counsel as defined in Strickland, and such clearly established federal law does not constitute a
new rule of constitutional law, Chaidez, 568 US at 349 n 4; see also Perez, 682 F3d at 933-934.4




4
    In Winward, 355 P3d at 1027 n 5, the Utah Supreme Court stated that,
         contrary to Perez, the Lafler Court did not hold that the state court had acted
         contrary to clearly established law by applying Strickland in a manner that failed
         to anticipate the outcome of Lafler and Frye. Instead, the Lafler Court concluded
         that the state court had failed to apply Strickland at all. It was this failure, not the
         failure to anticipate Lafler and Frye, that was contrary to clearly established law
         and therefore allowed the Court to grant habeas relief. [Citation omitted.]

The Utah Supreme Court’s analysis on this point is unconvincing. It is Strickland itself that the
state appellate court failed to apply in Lafler; this is what led the United States Supreme Court in
Lafler to conclude that the state appellate court had failed to apply “clearly established federal
law.” By concluding that AEDPA did not present a bar to granting habeas relief, the Court in
Lafler concluded that the law being applied was “clearly established,” and thus a new rule was
not created. See Lafler, 566 US at 173 (“By failing to apply Strickland to assess the ineffective-
assistance-of-counsel claim [the defendant] raised, the state court’s adjudication was contrary to
clearly established federal law.”).


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       Accordingly, we conclude that Lafler did not create a new rule and that it therefore
applies retroactively to this case. Thus, we affirm the trial court’s order granting relief to
defendant predicated on Lafler.

       Affirmed.



                                                         /s/ Thomas C. Cameron
                                                         /s/ Mark J. Cavanagh
                                                         /s/ Stephen L. Borrello




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