                        NOT RECOMMENDED FOR PUBLICATION
                                File Name: 18a0512n.06

                                          No. 17-3895

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                  FILED
                                                                                 Oct 15, 2018
                                                                            DEBORAH S. HUNT, Clerk
 NICHOLAS SCHWIETERMAN,                                 )
                                                        )
        Petitioner-Appellant,                           )
                                                                ON APPEAL FROM THE
                                                        )
                                                                UNITED STATES DISTRICT
                v.                                      )
                                                                COURT     FOR     THE
                                                        )
                                                                NORTHERN DISTRICT OF
 KEVIN SMITH, Warden,                                   )
                                                                OHIO
                                                        )
        Respondent-Appellee.                            )
                                                        )



BEFORE: COLE, Chief Judge; WHITE and NALBANDIAN, Circuit Judges.

       HELENE N. WHITE, Circuit Judge.

       Petitioner Nicholas Schwieterman, an Ohio prisoner, petitioned the district court for a writ

of habeas corpus under 28 U.S.C. § 2254. The district court denied Schwieterman’s petition,

finding that the state court’s determination that his plea counsel were not ineffective was a

reasonable application of Supreme Court precedent. We granted a certificate of appealability

limited to whether the district court’s deference under the Antiterrorism and Effective Death

Penalty Act (AEDPA) was proper and whether Schwieterman could establish that his previous

lawyers were ineffective under the standards set forth by the United States Supreme Court. Despite

reservations given the sparse record developed in state court, we affirm under AEDPA’s

deferential standard.
No. 17-3895, Schwieterman v. Smith


                                     I.     BACKGROUND

       Schwieterman was driving a 1996 Bonneville west on Brockman Road in the early morning

hours of March 15, 2008, in Mercer County, Ohio. At the same time, Jordan Moeller was driving

north on Country Road 716A in a 1995 Pontiac Grand Prix. The vehicles collided at the

intersection of those roads, where Schwieterman’s direction had a stop sign and Moeller’s did not.

Moeller and his three passengers all died from the collision. Schwieterman and his passenger both

survived. According to police reports, although Schwieterman initially denied to responding

officers that he was driving the Bonneville, he later admitted that he was the driver and stated that

he remembered driving off the side of the road before the accident occurred. Schwieterman had

been drinking alcohol and using cocaine that night. Blood and urine tests conducted after the

accident confirmed the presence of cocaine and marijuana in Schwieterman’s system and that

Schwieterman’s blood-alcohol content (BAC) was 0.134, well above the legal limit. Moeller

tested positive only for caffeine.

       Responding officers, including at least one officer with advanced training in responding to

accident scenes, documented the scene through measurements and photographs. Schwieterman’s

car was found in a ditch in the northwest corner of the intersection next to a pole. Moeller’s car

was found in the field further northwest of Schwieterman’s car.             The front and rear of

Schwieterman’s car were severely damaged and his front bumper had separated from the vehicle

and was found stuck to the side of Moeller’s car; Moeller’s vehicle was most severely damaged

on the passenger side, with additional heavy damage on the driver’s side rear. Based on these

observations, officers determined that Schwieterman had been at fault: he had not stopped at the

stop sign and had struck the side of Moeller’s car. They opined that the rear of Schwieterman’s

car had collided with the pole.



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No. 17-3895, Schwieterman v. Smith


           A grand jury in Mercer County returned an indictment charging Schwieterman with four

counts of involuntary manslaughter; eight counts of aggravated vehicular homicide; one count of

possession of drugs; two counts of operating a motor vehicle while under the influence of alcohol

or drugs of abuse (OMVI); and one count of trafficking in drugs. Schwieterman eventually pleaded

no contest to the four counts of involuntary manslaughter,1 and the drug-possession and OMVI

counts. The plea agreement included the following provisions, with no reference to a specific

sentence: Schwieterman must cooperate with the prosecuting attorney’s office in its investigation

and prosecution of the person who sold Schwieterman the cocaine; the state reserved its right to

argue for any sentence; Schwieterman waived appeal of all claims unrelated to sentencing; the

state could not seek to have Schwieterman remanded at the change-of-plea hearing or during the

presentence investigation; and Schwieterman could not seek a stay of sentence pending appeal.

The stipulated statement of facts in support of the no-contest plea included that Schwieterman

“failed to yield the right-of-way and/or stop for the stop sign that controls the intersection” where

the cars collided. (R. 7-3, PID 1010.) Schwieterman was sentenced to 24 years’ imprisonment—

six years for each involuntary-manslaughter count, to be served consecutively, and concurrent

sentences of 12 months for the drug-possession count, and six months for the OMVI count.

           On direct appeal, the Ohio Court of Appeals affirmed. State v. Schwieterman, No. 10-08-

17, 2009 WL 1365087 (Ohio Ct. App. May 18, 2009). The Ohio Supreme Court declined to

exercise jurisdiction and dismissed Schwieterman’s appeal. See 914 N.E. 2d 1064 (Ohio 2009)

(table).




        Ohio Revised Code § 2903.04(A) provides: “No person shall cause the death of another
           1

or the unlawful termination of another’s pregnancy as a proximate result of the offender’s
committing or attempting to commit a felony.”
                                                 -3-
No. 17-3895, Schwieterman v. Smith


       While his direct appeal was pending, Schwieterman sought collateral review in Ohio state

court by filing a Petition to Vacate or Set Aside Judgment pursuant to Ohio Revised Code §

2953.21, raising six claims, supported by affidavits and other exhibits.         In his ineffective-

assistance-of-counsel claim, he argued that the two lawyers who represented him in the

proceedings leading to his plea (plea counsel) were ineffective for failing to adequately investigate

how the collision occurred before counseling him to plead no contest. In support of his request for

relief and for an evidentiary hearing, Schwieterman attached an affidavit and two simulations of

the accident from an accident-reconstruction expert, Wilbur Meredith. Using the police crash

report, personal inspection of the crash site and vehicles involved, photographs, and reconstruction

software, Meredith reached the following relevant conclusions:

       14) It is my opinion, beyond any reasonable doubt and with engineering certainty,
       that this accident was not the result of a “T-Bone” type crash as opined by the
       investigating police officers.
       15) The first reason is because the Principle [sic] Direction of Force acting through
       the center of gravity of both vehicles causing the evidential damage to both of these
       vehicles indicates crash angle between the vehicles to be at approximately a 45-
       degree angle.
       16) The second reason is because the resulting trajectories of the two vehicles after
       impact is consistent with the evidence as recorded by the police at the accident
       scene.
       17) The third reason is because the opined estimate of the speed of the vehicle
       driven by Mr. Schwieterman is not consistent with a “high speed” of his vehicle at
       impact. It is consistent with the speed of 12-MPH as evidenced by the stuck
       speedometer on his car.
       18) It is my opinion, with a reasonable degree of engineering certainty that it is not
       possible to prove beyond a reasonable doubt that Mr. Schwieterman did not stop at
       the stop sign as charged by the investigating police officers. The speed of his car at
       impact was too low to negate the possibility that he did stop at the stop sign.
       ....
       20) It is my opinion, with a reasonable degree of engineering certainty, that the
       speedometers in both vehicles were stuck with their respective speed indicators at
       the impact speeds in each. The indicated speed of the Moeller vehicle being 84-
       MPH and the Schwieterman vehicle being 12-MPH. These speeds are consistent


                                                -4-
No. 17-3895, Schwieterman v. Smith


       with the reconstruction calculations by the writer and inconsistent with the police
       version of the accident with the Schwieterman vehicle “at a high rate of speed.”

(R. 7-23, PID 1394-95.)

       Meredith’s simulations were presented as two versions of reconstruction animations: the

“POLICE VERSION” and the “WRM VERSION.”2 The police version shows both vehicles

traveling constant at 30 mph3 until Schwieterman’s vehicle slams into the side of Moeller’s vehicle

in the intersection at approximately a 90-degree angle. In this simulation, the vehicles do not come

to rest near where the vehicles actually stopped.         In contrast, the WRM version shows

Schwieterman’s vehicle stop at the stop sign and accelerate to 12 mph before being struck near the

front driver’s-side wheel by Moeller’s car, which was traveling at 84 mph. In this simulation, the

vehicles stop where they did after the accident. The simulations do not show the resultant damage

to the vehicles.

       Schwieterman also attached police reports, his affidavit, and affidavits from his family

members, plea counsel, and his passenger. Plea counsel’s affidavits contain very little information

relevant to their investigation of the accident or Schwieterman’s decision to plead no contest. Plea

counsel both state that they made attempts to resolve the matter with the government, but that the

government initially made an “unrealistic offer[]” of “36 or 38 years of a 41 year maximum

sentence.” (R. 7-23, PID 1397; see also id., PID 1400 (stating that the first offer was 36 years’

imprisonment).) With the plea agreement Schwieterman eventually entered into, plea counsel both

believed—based on their experience, demeanor of the court, and the plea negotiations—that




       2
           “WRM” presumably stands for Wilbur R. Meredith.
       3
        It is not clear from the record why this simulation uses speeds of 30 mph for both vehicles.
Meredith notes in his affidavit that he “var[ied] the impact speeds of the two vehicles.” (R. 7-23,
PID 1394.)
                                                -5-
No. 17-3895, Schwieterman v. Smith


Schwieterman would be sentenced to 12-16 years of imprisonment, despite facing a maximum

sentence of 41 years of imprisonment.

       The affidavits from Schwieterman and his family state that plea counsel hired an expert

named Doug Heard, who told Schwieterman’s family that the accident occurred as the police said

it occurred and that the speedometer readings on the vehicles after the crash had no value. The

affidavits also state that Heard did not go to the scene of the accident or take measurements, but

instead relied on the officers’ version of events. There is no affidavit from Heard in the record.

       Schwieterman further stated that after his motion to suppress was denied, his attorneys

advised him to “throw himself on the mercy of the court.” (Id., PID 1408.) Although “he was

bothered by the speedometer question and the presentation of the expert hired by the attorneys”

and “believed he was giving up a great deal for very little in return from the State of Ohio,”

Schwieterman entered a no-contest plea and “was prepared to throw himself on the mercy of the

court.” (Id.) Schwieterman does not address whether he would have pleaded no contest had he

been presented with Meredith’s affidavit and simulations. He does state, however, that based on

Meredith’s simulations, “it appears that he would not have had time to react, drunk or not, to

[Moeller’s] car traveling at such a high rate of speed,” and that he “takes solace in that he was not

at fault in this accident.” (Id., PID 1409.)

       The Ohio Court of Common Pleas denied Schwieterman’s petition and request for an

evidentiary hearing. The Ohio Court of Appeals affirmed, quoting the following relevant portions

from the Court of Common Pleas opinion:

               The petitioner’s fourth and fifth claims are that he was denied effective
       assistance of counsel * * *, first, by failing to properly investigate how the accident
       occurred; and second, for failing to give sound advice regarding the plea agreement.




                                                -6-
No. 17-3895, Schwieterman v. Smith


       The record does not support his claim that trial counsel’s advice impaired the
       knowing and voluntary nature of his no contest plea.
               ***
               Petitioner’s claims regarding his counsel’s failure to fully investigate the
       collision by retaining the services of an accident reconstruction expert do not fall
       below the objective standard of reasonable representation because the decision to
       rely on cross-examination of the prosecution’s witness instead of producing a
       defense expert is trial strategy and does not itself constitute ineffective assistance.
       In addition, both attorneys for the petitioner visited the accident scene and thereby
       observed the scene of the crime first-hand. * * * As previously explained, even
       though petitioner’s newly-retained counsel has obtained additional evidence from
       an independently hired accident reconstruction expert, that evidence does not
       contradict the facts as set forth in the stipulation of facts submitted at the change of
       plea hearing * * *. Therefore, the petitioner was not prejudiced by the actions of
       his counsel, even if trial counsel’s assistance could be deemed ineffective.

State v. Schwieterman, No. 10-09-12, 2010 WL 169192, at *5 (Ohio Ct. App. Jan. 19, 2010). The

Ohio Court of Appeals initially found that most of Schwieterman’s claims—including his

ineffective-assistance-of-counsel claim—were barred by res judicata. Id. at *9. But it also found

that the Court of Common Pleas was correct in denying an evidentiary hearing because

Schwieterman did not establish substantive grounds for relief that would warrant a hearing. Id.

The Ohio Supreme Court declined to exercise jurisdiction and dismissed Schwieterman’s appeal,

see 927 N.E.2d 1128 (Ohio 2010) (table); the United States Supreme Court denied Schwieterman’s

petition for a writ of certiorari, 562 U.S. 1031 (2010) (mem.).

       Schwieterman then filed a petition for writ of habeas corpus in the district court, seeking

relief based in part on the ineffective assistance of plea counsel in failing to adequately investigate

the accident before advising Schwieterman to accept the plea agreement. The record before the

district court did not include Meredith’s simulations because the state had failed to provide them

when it transmitted the balance of the state postconviction record to the district court. The district

court held that Schwieterman’s ineffective-assistance claim was procedurally defaulted and

alternatively denied the claim on the merits. This court reversed, explaining that Schwieterman’s


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No. 17-3895, Schwieterman v. Smith


claim was not procedurally defaulted because “the state’s irregular invocation of res judicata in

this case is not an adequate independent state ground barring federal review.” Schwieterman v.

Smith, 612 F. App’x 825, 829 (6th Cir. 2015). We also found that the district court applied the

wrong legal standard4 to Schwieterman’s ineffective-assistance claim, and that the state’s failure

to include Meredith’s simulations left “untested facts [that] may control the outcome under clearly

established federal law.” Id. at 826, 829-30. We therefore remanded to the district court “to

determine whether the petitioner’s plea counsel was ineffective in light of the postconviction

expert evidence concerning how the accident occurred, including the video reconstruction

evidence mistakenly withheld from the district court.” Id. at 830.

       On remand, the district court again denied Schwieterman’s petition and a certificate of

appealability. We granted a certificate of appealability limited to whether the district court’s

deference under AEDPA was proper and whether Schwieterman could establish that his plea

counsel was ineffective under the standards set forth by the United States Supreme Court in

Strickland v. Washington, 466 U.S. 668 (1984), and Hill v. Lockhart, 474 U.S. 52, 58 (1985).

                                     II.     DISCUSSION

   A. AEDPA Deference

       We first address the threshold issue whether AEDPA deference applies. By its terms,

AEDPA applies only to claims that have been “adjudicated on the merits” in state court. 28 U.S.C.

§ 2254(d). Thus, if a claim has been adjudicated on the merits in state court, habeas relief may

only be granted when a state court’s decision “was contrary to, or involved an unreasonable



       4
          “Instead of asking whether reasonable counsel and a reasonable defendant would have
accepted the state’s facts and entered a no contest plea after reviewing the expert reconstruction,
the district court used an actual-innocence standard from an unpublished district court opinion and
dismissed the claim because the reconstruction would not make it impossible for a reasonable jury
to convict.” Schwieterman, 612 F. App’x at 829 (internal quotation marks and citation omitted).
                                                -8-
No. 17-3895, Schwieterman v. Smith


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

States,” § 2254(d)(1), or when a state court’s decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court proceeding,”

§ 2254(d)(2). On the other hand, claims that were not adjudicated on the merits in state court are

reviewed de novo for questions of law and clear error for questions of fact. Robinson v. Howes,

663 F.3d 819, 823 (6th Cir. 2011).

       AEDPA deference applies here because the state court adjudicated Schwieterman’s

ineffective-assistance claim on the merits. Although the Ohio Court of Appeals found that

Schwieterman’s claims were barred by res judicata, it also considered the merits of

Schwieterman’s ineffective-assistance claim. See Hoffner v. Bradshaw, 622 F.3d 487, 505 (6th

Cir. 2010) (“[W]e give AEDPA deference to a ruling on the merits despite the fact that the

reasoning was given as an alternative to a primary ground for decision.”).            In particular,

considering all of Schwieterman’s claims together, and after quoting large portions of the trial

court’s opinion addressing the merits of Schwieterman’s claims, the Ohio Court of Appeals

explained:

       Moreover, we note that Schwieterman did not establish “substantive grounds for
       relief that would warrant a hearing based upon the petition, the supporting
       affidavits, and the files and records in the case.” Jones, 2007-Ohio-5624, at ¶ 12.
       As noted by the trial court, even if evidence was destroyed that established the
       victim was traveling in excess of eighty m.p.h., and even if trial counsel would have
       hired an expert to establish that the accident did not occur in the manner as declared
       by the State, that evidence would not alter the fact that Schwieterman’s failure to
       yield the right of way at the stop sign and his operation of the vehicle while under
       the influence of alcohol and cocaine proximately caused the deaths of the victims.
       It is well established that a decedent’s contributory negligence is not a defense to a
       charge of vehicular homicide unless it is the sole proximate cause of the
       accident, State v. Langenkamp, 137 Ohio App.3d 614, 620, 739 N.E.2d 404, 2000-
       Ohio-1831; State v. McGraw, 3d Dist. No. 17-88-2, 1989 WL 153589; State v.
       Dailey, 5th Dist. No.2006-CA-0012, 2007-Ohio-2544, ¶ 32, and, clearly, the speed
       of the victim’s vehicle was not the sole proximate cause of this accident.



                                                -9-
No. 17-3895, Schwieterman v. Smith


Schwieterman, 2010 WL 169192, at *9. The Ohio Court of Appeals also quoted portions of the

trial court’s conclusion about both prongs of Schwieterman’s ineffective-assistance claim, and it

expressly adopted the trial court’s conclusion that Meredith’s affidavit and reconstruction

simulation would not have provided Schwieterman a viable defense under Ohio law to the

involuntary-manslaughter counts.5 Accordingly, as Schwieterman himself conceded in briefing to

the district court on remand, AEDPA deference applies. (R. 38, PID 2180 (“[Petitioner] would

agree that the deferential standard set forth under the AEDPA would apply.”).)

   B. Ineffective Assistance

           1.   Standard of Review

       We review a district court’s legal conclusions in a habeas corpus proceeding de novo and

its factual findings for clear error. Awkal v. Mitchell, 613 F.3d 629, 638 (6th Cir. 2010) (en banc).

However, because Schwieterman’s ineffective-assistance claim is subject to AEDPA’s heightened

standard of review, Schwieterman must establish that the state-court decision was “contrary to, or

involved an unreasonable application of, clearly established Federal law” or involved an

“unreasonable determination of the facts.”6 28 U.S.C. § 2254(d).

       A state-court decision is contrary to clearly established federal law only where the
       state court applies a rule that contradicts the governing law set forth in [Supreme
       Court] cases or confronts a set of facts that are materially indistinguishable from a
       decision of [the Supreme Court] and nevertheless arrives at a result different from
       [Supreme Court precedent]. Similarly, a state-court decision unreasonably applies
       federal law when it identifies the correct governing legal rule . . . but unreasonably
       applies it to the facts of the particular state prisoner’s case, or if it unreasonably
       extends a legal principle from [Supreme Court] precedent to a new context where
       it should not apply or unreasonably refuses to extend that principle to a new context

       5
         Although the Ohio Court of Appeals’ decision could have been clearer, the Supreme
Court has cautioned that “[t]he caseloads shouldered by many state appellate courts are very
heavy, and the opinions issued by these courts must be read with that factor in mind.” Johnson v.
Williams, 568 U.S. 289, 300 (2013) (footnote omitted).
       6
         Schwieterman does not raise a challenge under the “unreasonable determination of the
facts” prong.
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No. 17-3895, Schwieterman v. Smith


       where it should apply. Simply misapplying the law is not enough. [T]he state
       court’s decision must have been more than incorrect or erroneous. Rather, [t]he
       state court’s application must have been objectively unreasonable.

Kelly v. Lazaroff, 846 F.3d 819, 831 (6th Cir. 2017) (alterations in original) (internal quotation

marks and citations omitted). In other words, “[o]nly when fair-minded jurists could not disagree

that a state court’s merits decision conflicts with Supreme Court precedent may a federal court

issue a writ of habeas corpus.” Barton, 786 F.3d at 459-60 (citing Harrington v. Richter, 562 U.S.

86 (2011)).7

       Schwieterman’s burden is even greater due to the standard that applies to ineffective-

assistance-of-counsel claims under Strickland v. Washington, 466 U.S. 668 (1984). Strickland

requires a petitioner alleging ineffective assistance of counsel to show that “(1) counsel’s

performance was deficient, or put differently, ‘fell below an objective standard of reasonableness’;

and (2) the performance prejudiced the defendant.” United States v. Mahbub, 818 F.3d 213, 230-

31 (6th Cir. 2016) (quoting Strickland, 466 U.S. at 687-88). “Because the Strickland standard is

already ‘highly deferential,’ our review of a state-court decision on a Strickland claim is ‘doubly

deferential’ under” AEDPA. King v. Westbrooks, 847 F.3d 788, 795 (6th Cir. 2017) (citations

omitted).



       7
          Our prior opinion held that “the state’s irregular invocation of res judicata in this case is
not an adequate independent state ground barring federal review.” Schwieterman v. Smith, 612 F.
App’x 825, 829 (6th Cir. 2015). The district court stated that “[t]he practical effect of that
determination is that [the district court] is now applying AEDPA review to the state trial court’s
ruling, rather than that of the state appellate court.” R. 40, PID 2198. But as explained previously,
“we give AEDPA deference to a ruling on the merits despite the fact that the reasoning was given
as an alternative to a primary ground for decision.” Hoffner, 622 F.3d at 505. And, had the state
appellate court not issued a decision on the merits but instead relied only on a procedural bar, we
would review Schwieterman’s claim de novo. See Hill v. Mitchell, 842 F.3d 910, 938 n.14 (6th
Cir. 2016) (“[E]ven if a trial court decides a claim on the merits, that decision is ‘stripped of any
preclusive effect under the last-reasoned decision rule’ when the state appellate court affirms the
trial court’s decision ‘entirely based on a procedural bar.’” (quoting Barton v. Warden, S. Ohio
Corr. Facility, 786 F.3d 450, 464 (6th Cir. 2015))), cert. denied, 138 S. Ct. 82 (2017).
                                                 -11-
No. 17-3895, Schwieterman v. Smith


        AEDPA’s application complicates matters for Schwieterman in one more respect. He

requested an evidentiary hearing in the district court to present the opinion of an additional expert

and testimony from his plea counsel and Heard. This evidence would almost certainly be relevant

to Schwieterman’s ineffective-assistance claim. However, as the district court noted, our review

under § 2254(d) is limited to the evidence that was presented to the state court. See Cullen v.

Pinholster, 563 U.S. 170, 181 (2011). This is true even where, as here, the petitioner sought to

introduce additional evidence in state court. Ballinger v. Prelesnick, 709 F.3d 558, 561-62 (6th

Cir. 2013) (“While allowing a petitioner to supplement an otherwise sparse trial court record may

be appealing, especially where he diligently sought to do so in state court, the plain language of

Pinholster and Harrington precludes it.”).

            2. Deficient Performance and Prejudice

        We turn to the merits of Schwieterman’s ineffective-assistance claim based on the record

that was before the state court. “[T]he two-part Strickland v. Washington test applies to challenges

to guilty pleas based on ineffective assistance of counsel.” Hill v. Lockhart, 474 U.S. 52, 58

(1985). But there is a slight modification to the prejudice prong of the Strickland test. To show

prejudice in the plea context, Schwieterman “must show that there is a reasonable probability that,

but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.” Id. at 59.

        Schwieterman argues that his plea counsel performed deficiently because they failed to

adequately investigate how the crash occurred prior to advising Schwieterman to plead no

contest—including by failing to hire an expert to reconstruct the accident as Meredith did, and

failing to seek additional evidence to determine the speed at which both vehicles were traveling.




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No. 17-3895, Schwieterman v. Smith


       The Supreme Court has cautioned federal courts to strictly adhere to the Strickland standard

when reviewing choices made by attorneys during plea negotiations. See Premo v. Moore, 562

U.S. 115, 124 (2011).

       Failure to respect the latitude Strickland requires can create at least two problems
       in the plea context. First, the potential for the distortions and imbalance that can
       inhere in a hindsight perspective may become all too real. The art of negotiation is
       at least as nuanced as the art of trial advocacy, and it presents questions farther
       removed from immediate judicial supervision. There are, moreover, special
       difficulties in evaluating the basis for counsel’s judgment: An attorney often has
       insights borne of past dealings with the same prosecutor or court, and the record at
       the pretrial stage is never as full as it is after a trial. In determining how searching
       and exacting their review must be, habeas courts must respect their limited role in
       determining whether there was manifest deficiency in light of information then
       available to counsel. AEDPA compounds the imperative of judicial caution.
       Second, ineffective-assistance claims that lack necessary foundation may bring
       instability to the very process the inquiry seeks to protect. Strickland allows a
       defendant “to escape rules of waiver and forfeiture[.]” Prosecutors must have
       assurance that a plea will not be undone years later because of infidelity to the
       requirements of AEDPA and the teachings of Strickland. The prospect that a plea
       deal will afterwards be unraveled when a court second-guesses counsel’s decisions
       while failing to accord the latitude Strickland mandates or disregarding the
       structure dictated by AEDPA could lead prosecutors to forgo plea bargains that
       would benefit defendants, a result favorable to no one.

Id. at 125 (citations omitted).

       Based on the state-court record, it appears that the information available to plea counsel

consisted of the following: four people died as a result of the accident; Schwieterman was driving

his vehicle while over the legal BAC limit and under the influence of cocaine when the accident

occurred, and evidence establishing those facts would not be suppressed; the other driver tested

positive only for caffeine; investigators had determined based on, among other evidence, the

location of and damage to the vehicles that Schwieterman had struck Moeller’s vehicle; and plea

counsel’s retained expert—whose credentials Schwieterman has not challenged—agreed with the




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No. 17-3895, Schwieterman v. Smith


state investigators’ conclusions.8 Plea counsel also filed affidavits indicating their belief, based

on their experience, the demeanor of the court, and the plea negotiations, that Schwieterman would

be sentenced to 12-16 years of imprisonment, a substantially lower sentence than the state initially

offered.

       Schwieterman cannot establish on this record that the state court’s determinations

regarding plea counsel’s performance were unreasonable. With hindsight and a different expert,

Schwieterman has presented additional evidence that calls into question some of the investigators’

conclusions about how the accident occurred. But Schwieterman has pointed to no Supreme Court

cases establishing that plea counsel was required to do more in this case. The only case he cites is

Rompilla v. Beard, 545 U.S. 374, 387 (2005), to argue that “failure to investigate may constitute

ineffective assistance.” (Appellant’s Br. at 25.) No one disputes that proposition. But Strickland

declares that “strategic choices made after less than complete investigation are reasonable

precisely to the extent that reasonable professional judgments support the limitations on

investigation.” 466 U.S. at 690-91. Rompilla held that defense counsel performed deficiently

during capital sentencing by failing to review a readily available prior-conviction file even though

counsel knew the prosecution intended to introduce testimony about that prior conviction. 545

U.S. at 383-90. In Rompilla, the necessary and minimal investigative steps would thus have been

clear to any reasonably diligent attorney. Here, in contrast, the record suggests that plea counsel

retained at least one expert to evaluate the accident, and that expert agreed with the state’s

conclusion that Schwieterman was at fault in the accident. Photographs of the vehicles also support

the state’s version of events. Under these circumstances, we cannot say that it was an unreasonable



       8
         The state cited authority in briefing to the district court and on appeal supporting Heard’s
alleged opinion that speedometer readings after an accident are often not scientifically reliable.
However, no such argument was made to the state postconviction court.
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No. 17-3895, Schwieterman v. Smith


application of Strickland for the state court to conclude that plea counsel’s decision not to

investigate further was reasonable. See Davis v. Carpenter, 798 F.3d 468, 473 (6th Cir. 2015)

(noting that “[t]he Supreme Court has never [answered] how many experts must an attorney

contact before proceeding without one, what kinds of outside advice can the attorney rely upon,

and ultimately how hard must he try”); see also Premo, 562 U.S. at 126 (“The absence of a

developed or an extensive record and the circumstance that neither the prosecution nor the defense

case has been well defined create a particular risk that an after-the-fact assessment will run counter

to the deference that must be accorded counsel’s judgment and perspective when the plea was

negotiated, offered, and entered.”).

       In sum, given that plea counsel had, in fact, consulted an expert,9 it was not unreasonable

for the state court to conclude that plea counsel’s decision to recommend a plea fell “within the

wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689.

       Even if the state court’s assessment of plea counsel’s performance was unreasonable,

Schwieterman would also need to show that the state court was unreasonable in determining that

he did not show that, absent plea counsel’s errors, “he would not have pleaded guilty and would

have insisted on going to trial.” Hill, 474 U.S. at 59.

       The Ohio Court of Appeals explained that, under Ohio law, a decedent’s contributory

negligence is not a defense unless it is the sole proximate cause of the accident. Schwieterman,

2010 WL 169192, at *9. Because Meredith’s evidence did not contradict the stipulated facts “that

Schwieterman’s failure to yield the right of way at the stop sign and his operation of vehicle under

the influence of alcohol and cocaine proximately caused the deaths of the victims,” the Ohio Court




       9
         Schwieterman asserts that Heard was hired to convince him to accept a plea agreement,
but nothing in the record supports this assertion.
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No. 17-3895, Schwieterman v. Smith


of Appeals concluded that this new evidence would not have provided Schwieterman a defense to

the counts to which he pled. Id. The Ohio Court of Appeals also quoted at length from the Court

of Common Pleas’ opinion, which cited Strickland10 and found no prejudice for similar reasons.

Id., at *4.

        Schwieterman has not demonstrated that the state-court decision was contrary to or

unreasonably applied clearly established federal law. As Hill explained, the determination of

prejudice in the plea context “will depend on the likelihood that discovery of the evidence would

have led counsel to change his recommendation as to the plea,” which “in turn, will depend in

large part on a prediction whether the evidence likely would have changed the outcome of a trial.”

Hill, 474 U.S. at 59. Here, the state court determined under state law that regardless whether

Schwieterman stopped at the stop sign, Moeller’s speeding would not have been a defense to the

involuntary-manslaughter counts. Schwieterman cites no authority to challenge that statement of

Ohio law, which appears to be correct. See, e.g., State v. Garland, 688 N.E.2d 557, 562 (Ohio Ct.

App. 1996) (“A decedent’s contributory negligence does not exonerate criminal liability under

R.C. 2903.04(B) unless such negligence was the sole proximate cause of the accident. Appellant

argues that if Pennington had not been speeding, the two never would have met in the intersection

at the precise moment of the collision. However, by the same token, if appellant had not run the

stop sign, the accident never would have occurred. Since it cannot be said that the accident was

the sole proximate result of Pennington’s speed, it was not an abuse of discretion for the trial court

to exclude such evidence on the basis of relevancy.” (citations omitted)). Although Meredith




        10
          Although neither state court cited Hill, satisfaction of AEDPA’s standard “does not
require citation of [Supreme Court] cases—indeed, it does not even require awareness of
[Supreme Court] cases, so long as neither the reasoning nor the result of the state-court decision
contradicts them.” Early v. Packer, 537 U.S. 3, 8 (2002).
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No. 17-3895, Schwieterman v. Smith


concluded that the state could not prove beyond a reasonable doubt that Schwieterman failed to

stop at the stop sign, that does not controvert the stipulated fact that Schwieterman failed to yield

the right of way to Moeller; even if Schwieterman had stopped, he nevertheless proceeded into the

intersection and collided with an oncoming car that had no stop sign, thus failing to yield the right

of way. Because the state court’s determination that Meredith’s evidence would not have provided

a defense to the involuntary-manslaughter charges is supported by state law, the state court did not

unreasonably conclude that Schwieterman could not show prejudice. See Hill, 474 U.S. at 59.

        Our prior opinion noted that Meredith’s simulations were important evidence that the

district court needed in order to properly analyze Schwieterman’s petition. Schwieterman, 612 F.

App’x at 827. Indeed, the value and persuasiveness of these simulations and Meredith’s affidavit

are relevant to the reasonableness of the state court’s determination of prejudice: the more

compelling the evidence, the stronger Schwieterman’s prejudice argument would be. See Hill,

474 U.S. at 59. Having reviewed this evidence closely, however, we do not believe it changes the

outcome. First, Meredith’s affidavit consists only of a series of conclusory assertions. There is

no explanation of the simulations he provided, and the assertions Meredith makes in his affidavit

do not compel a finding that the accident occurred in the way the simulations reflect. Further, the

simulations do not appear to be consistent with the color photographs or police reports showing

heavy damage to Schwieterman’s car’s front end, heavy damage to Moeller’s car’s passenger side,

and the report of Schwieterman’s front bumper being stuck to Moeller’s passenger side. Finally,

Meredith’s simulations and affidavit only establish that Schwieterman may have stopped at the

stop sign, not that he did.

        Even if Meredith’s evidence provided Schwieterman a strong defense, the Supreme Court

has explained that “the question in the present case is not whether [the petitioner] was sure beyond



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No. 17-3895, Schwieterman v. Smith


a reasonable doubt that he would still be convicted.” Premo, 562 U.S. at 130. This is because

“[m]any defendants reasonably enter plea agreements even though there is a significant

probability—much more than a reasonable doubt—that they would be acquitted if they proceeded

to trial.” Id. Rather, the appropriate inquiry “is whether [the petitioner] established the reasonable

probability that he would not have entered his plea but for his counsel’s deficiency, and more to

the point, whether a state court’s decision to the contrary would be unreasonable.”                    Id.

Schwieterman admits on appeal that whether plea counsel would have advised against a plea “is a

difficult question to answer given the state of the record both in state court and in the district court.”

(Appellant’s Br. at 29.) Simply presenting a “difficult question to answer” is insufficient to meet

AEDPA’s high bar. Although we agree with Schwieterman that additional evidence would aid

our inquiry, we must review the record as it was before the state court. And there is nothing in

this record that establishes that plea counsel would have changed their recommendation to accept

a plea agreement if they had been aware of Meredith’s simulations and affidavit, or that

Schwieterman would have rejected their advice in light of these materials.

        Finally, Schwieterman argues that, despite the absence of such an assertion in his affidavit,

it is “common sense” that he would not have pleaded no contest to the four counts of involuntary

manslaughter if he had seen Meredith’s simulations, which is evidenced by his attempts to overturn

his convictions and withdraw his plea post-sentencing. (Appellant’s Br. at 28.) There is no support

for Schwieterman’s argument that simply seeking to withdraw one’s plea post-sentencing

establishes prejudice under Strickland and Hill. Indeed, if that were the case, prejudice would be

found in every case where a petitioner seeks to withdraw his plea based on ineffective assistance

of counsel.




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No. 17-3895, Schwieterman v. Smith


       Accordingly, Schwieterman has not established that the state court was objectively

unreasonable in concluding that he did not show a reasonable probability that he would have

insisted on going to trial facing a possible sentence of 41 years’ imprisonment as opposed to the

12-16 years’ imprisonment that his plea counsel anticipated he would receive.

                                    III.   CONCLUSION

       For the reasons set out above, we AFFIRM.




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