    Case: 15-50991   Document: 00514323392     Page: 1   Date Filed: 01/26/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT

                                                            United States Court of Appeals

                                No. 15-50991
                                                                     Fifth Circuit

                                                                   FILED
                                                             January 26, 2018
                                                                Lyle W. Cayce
                                                                     Clerk
UNITED STATES OF AMERICA,

                                          Plaintiff–Appellee,

versus

ADAM DANIEL SHEPHERD,

                                          Defendant–Appellant.




               Appeals from the United States District Court
                     for the Western District of Texas




Before JONES, SMITH, and PRADO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Adam Shepherd appeals the denial of his 28 U.S.C. § 2255 motion.
Because his guilty plea was rendered involuntary by ineffective assistance of
counsel (“IAC”), we reverse and grant the motion.

                                     I.
     Shepherd exposed himself to two minor girls in Arizona in 2002. Arizona
charged him with one count of indecent exposure to a minor (Count 1—a class
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                                       No. 15-50991


six felony) and one count of public sexual indecency to a minor (Count 2—a
class five felony). Under a plea agreement, Count 1 was dismissed, and Shep-
herd pleaded guilty to an amended Count 2.

       The exact nature of the amended charge is disputed. Shepherd was orig-
inally charged with the class five felony of “[p]ublic sexual indecency to a
minor.”    See ARIZ. REV. STAT. ANN. § 13-1403(c) (emphasis added). 1                   Con-
versely, general “[p]ublic sexual indecency is a class 1 misdemeanor.” ARIZ.
REV. STAT. ANN. § 13-1403(c). The plea agreement, however, described the
charge as “Count 2, Amended, Attempted Public Sexual Indecency, a class 6
designated felony, in violation of A.R.S. 13-1403, . . . 13-1001 . . .” 2               Sec-
tion 13-1403 is titled “Public sexual indecency; public sexual indecency to a
minor; classification,” and Arizona punishes “attempt” offenses as one class
below the completed offense. See ARIZ. REV. STAT. ANN. § 13-1001(c). The
amended charge does not indicate that “a minor under the age of fifteen years
was present,” and the classification of the offense changed. Shepherd was
given a suspended sentence of 230 days and lifetime probation 3 and was
required to register as a sex offender. 4


       1 The indictment stated that Shepherd “intentionally or knowingly engaged in an act
of sexual contact and was reckless about whether a minor under the age of fifteen years was
present, in violation of A.R.S. § 13-1403 . . .” The Court Information Sheet specified, “COUNT
2: PUBLIC SEXUAL INDECENCY TO A MINOR, A CLASS 5 FELONY.”
       The Arizona order suspending Shepherd’s sentence also states, “OFFENSE:
       2

Amended Count II: Attempted Public Sexual Indecency Class 6 Felony . . . .”
       3After Shepherd violated his probation, Arizona moved to revoke it in 2006, and a
non-extraditable arrest warrant was issued.
       4 It appears that but for Shepherd’s agreeing to register as a sex offender as part of
his plea agreement, Arizona law would not have required him to register, regardless of which
crime formed the basis of his plea. For public-sexual-indecency violations, Arizona law re-
quires registration when the offender has been convicted either three times for general public
                                              2
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       After his 2003 conviction, Shepherd moved to Nevada.                   In 2006, he
exposed himself to two girls (ages unknown) in Nevada and was charged with
“INDECENT EXPOSURE, a violation of N.R.S. 201.220, a felony.” 5 In 2007,
Shepherd pleaded guilty and was sentenced to 12 to 34 months and was
required under Nevada law to register for life as a sex offender.

       Shepherd moved to Texas in 2011 but did not register as a sex offender.
In 2012, Nicholas Rose, a Deputy U.S. Marshal Criminal Investigator, was
notified by police that Shepherd was an unregistered sex offender. 6 According
to Rose, he “checked the Texas DPS website that has a list of all registered sex
offenders in Texas and Adam Shepherd was not listed.” He then requested
Shepherd’s documents of conviction from Arizona and Nevada and contacted
the Texas Department of Public Safety (“DPS”). Upon review, DPS stated,
“Only the AZ offense would require registration . . . .”

       Shepherd was arrested in June 2012 7 and indicted the next month. He
was charged with “knowingly fail[ing] to register and update his registration



sexual indecency or twice for public sexual indecency to a minor. See ARIZ. REV. STAT. ANN.
§ 13-3821(A)(16), (18). It does not appear that Shepherd had any prior public sexual in-
decency convictions.
       5  Nevada prosecutes “indecent or obscene exposure” as a “gross misdemeanor” for the
first offense. But subsequent offenses (including comparable out-of-state offenses) and of-
fenses involving minors under the age of 18 are prosecuted as a category D felony. NEV. REV.
STAT. ANN. § 201.220. Shepherd was charged by information, which did not refer to the age
of the victims but did refer to his previous Arizona conviction. The plea agreement similarly
omits the age of the victims but notes the previous conviction. The judgment does not
mention either piece of information.
       Rose indicated he “do[es]n’t know how the detective came about knowing [Shepherd]
       6

was here.”
       7That is also the date he was appointed counsel—an Assistant Federal Public
Defender.
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as required by the Sex Offender Registration and Notification Act, [a]ll in viola-
tion of Title 18 United States Code, Section 2250(a).” Shepherd acknowledged
that he had been living in Texas since 2011 and that he had not registered
because he believed he was not required to register under Texas law.

      Shepherd entered a plea of “not guilty” and filed an “Unopposed Motion
to Continue.” Counsel indicated that he had “recently received discovery” and
needed “[a]dditional time . . . so that [he] may review discovery with Mr. Shep-
herd as well as confer with Assistant United States Attorney Tracy Thomp-
son.” The court granted the motion in September 2012, and later that month
Shepherd pleaded guilty.

      At the plea hearing, the magistrate judge requested the government
provide the factual basis for the offense. The government responded that “[i]f
this case proceeded to trial . . . the Government would prove” that Shepherd
was convicted in Arizona and Nevada for indecent exposure and that “[b]oth of
those convictions qualify Mr. Shepherd as a sex offender under the Sex
Offender Registration and Notification Act.” Further, the government claimed
it would prove that “at no time did Mr. Shepherd register as a sex offender
anywhere in the state of Texas.” When questioned, Shepherd stated that he
understood and agreed with the government’s factual basis.

      On December 19, 2012, the district court sentenced Shepherd to twenty-
four months of imprisonment, thirty years of supervised release, and a $100
special assessment. Shepherd challenged the supervised release on appeal,
and we affirmed. See United States v. Shepherd, 542 F. App’x 346 (5th Cir.
2013).

      After being released from prison, Shepherd attempted to register as a
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                                      No. 15-50991


sex offender in Texas. But DPS informed him that he did not have a duty to
register based on either his Arizona or Nevada conviction. Shepherd thus filed
a motion to vacate his sentence per 28 U.S.C. § 2255 in October 2014. 8 He
claims that he is not currently, nor ever was, under a legal duty to register in
Texas and that his trial attorney was ineffective for failing to make that claim.

       Upon request to show cause by the magistrate judge, Shepherd sub-
mitted a letter dated January 6, 2015, from Randy Ortega, the managing
attorney for the crime records service department of DPS. Ortega stated that
he reviewed the Arizona and Nevada convictions, and “[he] do[es] not see that
[Shepherd] has a duty to register as a sex offender for either case, as the ele-
ments of these offenses as disposed are not substantially similar to a Texas
Reportable Conviction . . . .” Ortega testified that “[he is] the attorney cur-
rently who makes the determinations” concerning sex offender registration. 9

       Ortega then explained that before August 30, 2012, DPS utilized a dif-
ferent method to determine whether an out-of-state offense was substantially
similar to a reportable Texas offense. 10 Under the old method, DPS looked
both to the elements of and the facts underlying the out-of-state offense. On
August 30, 2012, however, the Texas Third Court of Appeals issued a decision
in Texas Department of Public Safety v. Anonymous Adult Texas Resident,


       8Though Shepherd served his twenty-four months in prison, the thirty years of
supervised release remains in effect.
       9  Ortega, however, was not the attorney who handled the 2012 inquiry about Shep-
herd’s registration status. Though Ortega was the managing attorney at that time, “one of
[his] staff” handled the 2012 inquiry.
       10 Ortega also explained that the governing authority on how to determine whether a
crime is substantially similar to a Texas reportable offense is Prudholm v. State, 333 S.W.3d
590, 595 (Tex. Crim. App. 2011).
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382 S.W.3d 531 (Tex. App.—Austin 2012, no pet.), repudiating that method.
Anonymous Adult restricts DPS to comparing only the elements of an out-of-
state offense with the elements of a Texas reportable offense. Id. at 535. The
facts generally cannot be reviewed. 11

       In regard to Shepherd’s Arizona conviction, Ortega explained that DPS
originally reviewed the underlying facts and determined “the facts . . . [were]
substantially similar to behavior that would otherwise be qualified as a report-
able conviction.” So “there may have been a prior duty” to register under the
old method, but under the current method, where the facts cannot be consid-
ered, Shepherd is not required to register. Ortega viewed the Arizona convic-
tion as “attempted public sexual indecency,” which does not correlate to any
reportable Texas offense. He agreed that “because the offense [Shepherd] pled
to removed the word ‘minor’ from the conviction title,” Shepherd “no longer
would have to register.” The ambiguity of the plea document in regard to the
offense caused him to “err[ ] on the side of caution” and “g[i]ve the defendant
the benefit of the doubt.” Further, Ortega testified that if asked on August 31,
2012, whether Shepherd had a duty to register, he likely would have said no.

       Rejecting the recommendation of the magistrate judge, the district court
denied Shepherd’s § 2255 motion, reasoning “that the DPS erred in concluding
in January 2015 that Shepherd was not required to register” because “Ariz.
R.S. § 13-1403 is substantially similar to Texas Penal Code § 21.11.” Shepherd
v. United States, Civil Action No. SA-12-CR-643-XR, 2015 WL 5163401, at *3


       11 The facts can be reviewed only where the out-of-state offense is broader than the
reportable Texas offense. In that case, DPS may consider the facts of the out-of-state convic-
tion to determine whether the perpetrator would have committed an offense under Texas’s
narrower statute. See Anonymous Adult, 382 S.W.3d at 534–35.
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(W.D. Tex. Sept. 1, 2015). The court granted a certificate of appealability on
(1) whether Shepherd’s plea was rendered involuntary by “his lack of knowl-
edge about DPS’ change in position . . . that his Arizona conviction did not,
after all, require that he report” and (2) whether Shepherd was actually
innocent of the federal offense.

                                        II.
      The Sex Offender Registration and Notification Act (“SORNA”), Title I
of the Adam Walsh Child Protection & Safety Act, requires “[a] sex offender
[to] register, and keep the registration current, in each jurisdiction where the
offender resides . . . .” 34 U.S.C. § 20913(a). “SORNA makes it a federal crime
for anyone required to register as a sex offender to travel in interstate com-
merce and knowingly fail to register or update his or her registration.” United
States v. LeTourneau, 534 F. Supp. 2d 718, 720 (S.D. Tex. 2008) (citing
18 U.S.C. § 2250(a)). “A defendant is subject to SORNA’s provisions if (i) he or
she has a state law sex offense requiring registration as a sex offender; (ii) then
travels in interstate commerce; and (iii) knowingly fails to register or update
his or her registration as required by state law.” Id. (citing 34 U.S.C. §§ 20911,
20912, 20913).

      An out-of-state sex offender is required to register in Texas if his offense
falls within the requirements of Texas Code of Criminal Procedure Chapter 62.
The DPS determines whether an out-of-state offense is substantially similar to
a reportable Texas offense so as to require the out-of-state offender to register.
TEX. CRIM. PROC. CODE ANN. § 62.003(a). A conviction of indecency with a child
is a Texas offense requiring registration. Id. § 62.001(5)(A).


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                                              III.
       Shepherd both raises a freestanding claim of actual innocence and chal-
lenges the validity of his guilty plea. “[O]ur caselaw does not recognize free-
standing actual innocence claims,” United States v. Fields, 761 F.3d 443, 479
(5th Cir. 2014), so we review only the validity of the plea.

       On appeal of the denial of a § 2255 motion, we review the district court’s
factual findings for clear error and its legal conclusions de novo. United States
v. Underwood, 597 F.3d 661, 665 (5th Cir. 2010). The district court’s determin-
ations concerning ineffective-assistance claims are reviewed de novo, as are its
rulings concerning the voluntariness of a guilty plea. 12

                                               A.
       “The longstanding test for determining the validity of a guilty plea is
‘whether the plea represents a voluntary and intelligent choice among the
alternative courses of action open to the defendant.’” 13 “The conditions for a
valid plea require, among other things, that the defendant have notice of the
charges against him, understand the constitutional protections waived, and
have access to the advice of competent counsel.” 14 Shepherd asserts that his
plea was rendered involuntary on “two closely related, yet legally distinct
grounds”: (1) IAC and (2) “the fact that neither he, nor any of the parties―



       12United States v. Bass, 310 F.3d 321, 325 (5th Cir. 2002) (ineffective assistance);
United States v. Howard, 991 F.2d 195, 199 (5th Cir. 1993) (guilty plea; direct appeal); accord
United States v. Reasor, 418 F.3d 466, 478 (5th Cir. 2005) (denial of motion to withdraw guilty
plea).
       13 Hill v. Lockhart, 474 U.S. 52, 56 (1985) (quoting North Carolina v. Alford, 400 U.S.
25, 31 (1970)).
       14   United States v. Washington, 480 F.3d 309, 315 (5th Cir. 2007).
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including the District Court―were aware that he was no longer required to
register under Texas law.” Because we ultimately agree with Shepherd on the
first ground, we do not address the second.

                                              B.
      “Where, as here, a defendant is represented by counsel during the plea
process and enters his plea upon the advice of counsel, the voluntariness of the
plea depends on whether counsel’s advice ‘was within the range of competence
demanded of attorneys in criminal cases.’” 15 The decision in Strickland v.
Washington, 466 U.S. 668 (1984), provides the appropriate standard for assess-
ing “ineffective-assistance claims arising out of the plea process.”                   Hill,
474 U.S. at 57. “First, the defendant must show that counsel’s performance
was deficient . . . . Second, the defendant must show that the deficient per-
formance prejudiced the defense.” Washington, 466 U.S. at 687.

                                              1.
      “[T]he proper standard for attorney performance is that of reasonably
effective assistance.” Id. Shepherd “must show that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688. “[T]he perfor-
mance inquiry must be whether counsel’s assistance was reasonable consider-
ing all the circumstances.” Id.

      “Judicial scrutiny of counsel’s performance must be highly deferential[,]”
and “a court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.” Id. at 689. We
must be careful “to eliminate the distorting effects of hindsight, to reconstruct


      15   Hill, 474 U.S. at 56 (quoting McMann v. Richardson, 397 U.S. 759, 771 (1970)).
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the circumstances of counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.” Id. “Thus, a court . . . must judge the
reasonableness of counsel’s challenged conduct on the facts of the particular
case, viewed as of the time of counsel’s conduct.” Id. at 690 (emphasis added).
“[S]trategic choices made after thorough investigation of law and facts relevant
to plausible options are virtually unchallengeable; and strategic choices made
after less than complete investigation are reasonable precisely to the extent
that   reasonable      professional     judgments      support     the    limitations     on
investigation.” Id. at 690–91.

       Shepherd’s court-appointed counsel testified that he performed only one
task before recommending that Shepherd plead guilty: He “compared the
Arizona statute with the Texas statute.” He “did not read any case law because
at the time [he] thought in [his] analysis it was clear.” He “ha[s] no memory
of” “learn[ing] that DPS had determined that the defendant, [his] client, was
required to register as a sex offender in the state of Texas.” 16 He is unsure how
he even decided what statutes to compare—“How I arrived [at what statutes
to compare]? I don’t know.” He did not “talk to anyone from DPS about their
determination” or “how they determined that this gentleman was supposed to
register[.]” In sum, the attorney “simply bas[ed] [his] decision on the Arizona
statute, the Texas statute, and the SORNA statutes.” 17

       Under these facts, counsel’s lack of inquiry beyond comparing the two



       16The court-appointed attorney also testified, “I don’t remember ever seeing that” DPS
ruled he had to report.
       17 The attorney also stated, “If I had read the [Anonymous Adult] opinion, but I
didn’t―I didn’t review. I missed it.”
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statutes is IAC. 18 At a minimum, an attorney should try to discern the method
by which a person is deemed required to register under Texas law. That could
be accomplished by doing any one of the following things: Conduct a cursory
search for relevant caselaw, speak with the agency that made the registration
decision, or review provided reports indicating what offense allegedly sup-
ported the decision. Shepherd’s court-appointed lawyer did none of those
things. 19 If he had, his research would have led him to Anonymous Adult.

       Where we have held defense counsel effective despite lackluster investi-
gation, we “found either that counsel’s decision not to investigate was part of a
clearly developed defensive strategy, or that the defendant could point to no
specific evidence that would have been uncovered by a more thorough investi-
gation.” Nealy, 764 F.2d at 1178. Counsel offered no strategic reason not to
perform at least a cursory caselaw search, and Shepherd can point to specific
evidence—Anonymous Adult. “[A] lawyer’s duty is to provide the client an
understanding of the law and to give competent advice, and [ ] if the lawyer is
unfamiliar with the relevant facts and law, the client’s guilty plea cannot be
knowingly and voluntarily made because it will not represent an informed


       18 See Nealy v. Cabana, 764 F.2d 1173, 1177 (5th Cir. 1985) (“A substantial body of
Fifth Circuit case law insists, however, ‘that effective counsel conduct a reasonable amount
of pretrial investigation.’” (quoting Martin v. Maggio, 711 F.2d 1273, 1280 (5th Cir. 1983)
(per curiam))).
       19 See United States v. Juarez, 672 F.3d 381, 386 (5th Cir. 2012) (“[T]his circuit has
recognized that, at a minimum, counsel has the duty to interview potential witnesses and to
make an independent investigation of the facts and circumstances of the case.” (alteration
in original) (quoting Nealy, 764 F.2d at 1177)); see also Bell v. Watkins, 692 F.2d 999, 1009
(5th Cir. 1982) (“[W]e have imposed a duty on counsel to make an independent investigation
of the facts and circumstances in the case.”); Rummel v. Estelle, 590 F.2d 103, 104 (5th Cir.
1979) (“[C]ourt-appointed counsel have a duty to interview potential witnesses and ‘make an
independent examination of the facts, circumstances, pleadings and laws involved.’” (quoting
Von Moltke v. Gillies, 332 U.S. 708, 721 (1948))).
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choice.” 20

       Furthermore, “[w]e long have recognized that ‘[p]revailing norms of prac-
tice as reflected in American Bar Association standards . . . are guides to deter-
mining what is reasonable . . . .’” 21 “Adequate preparation depends on the
nature of the proceeding and the time available, and will often include: review-
ing available documents; . . . relevant legal research and factual investigation;
and contacting other persons who might be of assistance in addressing the
anticipated issues.” 22 Shepherd’s counsel failed those standards.

                                             2.
       Shepherd must next show prejudice, such that “counsel’s constitutionally
ineffective performance affected the outcome of the plea process.”                      Hill,
474 U.S. at 59. “[T]o satisfy the ‘prejudice’ requirement, the defendant 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.

       This determination depends on assessments such as “the likelihood that
discovery of the evidence would have led counsel to change his recommendation
as to the plea[,]” which “depend[s] in large part on a prediction whether the
evidence likely would have changed the outcome of a trial.” Id. Shepherd “has



       20 Juarez, 672 F.3d at 390 (describing United States v. Cavitt, 550 F.3d 430, 440–41
(5th Cir. 2008)).
        Id. at 388 (quoting Padilla v. Kentucky, 559 U.S. 356, 366 (2010)) (internal quotation
       21

marks omitted).
       22  ABA Standard for Criminal Justice 4-4.6 (4th ed. 2015); see also id. at 4-4.1
(“Defense counsel’s investigation of the merits of the criminal charges should include efforts
to secure relevant information in the possession of the prosecution, law enforcement author-
ities, and others, as well as independent investigation.”).
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to demonstrate that going to trial . . . would have given him a reasonable
chance of obtaining a more favorable result.” 23 “In assessing prejudice, we con-
sider the totality of the circumstances.” 24

       “If the petitioner claims that counsel erred by failing to investigate or
discover certain exculpatory evidence, the prejudice determination will depend
upon whether the discovery of such evidence would have influenced counsel to
change his advice regarding the guilty plea.” 25 Shepherd’s attorney testified
that had he known about Anonymous Adult, “[he] think[s] [he] would have filed
a motion to dismiss . . . . [I]t would have been [his] position that [Shepherd]
wouldn’t have had to report . . . . “[I]f [he] had found out that there had been
a case that had ruled under similar circumstances [his] client . . . would not
have had to report . . . [he] know[s] [he] would have moved to dismiss.” 26 These
statements indicate that the lawyer would have advised his client differently,


       23 United States v. Batamula, 823 F.3d 237, 240 (5th Cir.) (en banc), cert. denied,
137 S. Ct. 236 (2016).
       24United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014); see also Batamula,
823 F.3d at 240.
       25 Mangum v. Hargett, 67 F.3d 80, 84 (5th Cir. 1995); see also Juarez, 672 F.3d at 387–
88 (finding counsel’s “failure to investigate [the facts or law necessary] was unreasonable,”
in part because counsel admitted that he would have advised his client differently in regard
to a guilty plea had he uncovered the relevant information).
       26   Shepherd’s attorney also testified as follows:
       “And if I had become aware of the fact that the state of Texas no longer considered
that particular set of facts sufficient to require that the defendant reports, then it would be
my opinion that he would not be guilty of the federal offense . . .”
        “Because if it’s not criminal now and it’s always been not criminal, then there’s not a
basis for conviction.”
      “[I would have] challenge[d] the charging document . . . [and informed the judge that
he was] about to sentence this person for something that’s no longer criminal.”
       “I would have asked to withdraw the plea, yes.”
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would have pursued a different legal strategy, and would have maintained that
DPS’s determination was erroneous before August 30, 2012. 27

       Moreover, United States v. Kayode, 777 F.3d 719, 725 (5th Cir. 2014),
provides
    a non-exhaustive list of potentially relevant factors, including: (1) the
    defendant’s “evidence to support his assertion” that he would have gone
    to trial had he known the [the relevant circumstances]; (2) “his likeli-
    hood of success at trial”; (3) “the risks [he] would have faced at trial”;
    (4) his “representations about his desire to retract his plea”; . . . and
    (6) “the district court’s admonishments.”[ 28]
The Kayode factors support a finding of prejudice. The parties stipulated that
Shepherd would have gone to trial if he knew about Anonymous Adult. Shep-
herd’s lawyer testified he would have moved to dismiss and counseled Shep-
herd to go to trial had he known about it. Shepherd likely had colorable the-
ories at trial because of the ambiguities surrounding his Arizona conviction
and the erroneous DPS comparison policy. Thus, we cannot presume that he
would necessarily accept a plea if offered. 29 And the district court was unaware
of Anonymous Adult and its implications, such that its admonishments did not
make clear that Shepherd was pleading guilty to an offense that he would not
be chargeable with as of at least August 30, 2012.


       27 See Juarez, 672 F.3d at 389 (“Indeed, [counsel] testified to his own mistake and
stated that had he independently investigated the defense, he would have withdrawn [the]
guilty pleas.”).
       28 Batamula, 823 F.3d at 241 n.4 (quoting Kayode, 777 F.3d at 725–28). We omit
factor 5, which relates to evaluating prejudice in the context of a plea that could have immi-
gration consequences. Id. (“‘his connections to the United States’”).
       29See also Lee v. United States, 137 S. Ct. 1958, 1966 (2017) (“But that is not because
the prejudice inquiry . . . looks to the probability of a conviction for its own sake . . . . Where
a defendant has no plausible chance of an acquittal at trial, it is highly likely that he will
accept a plea if the Government offers one.”).
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                                      No. 15-50991


       There is, however, an issue of causation. Anonymous Adult was decided
in the middle of Shepherd’s attorney’s representation, so talking to DPS or
conducting caselaw research, as Shepherd’s court-appointed attorney stated,
“would’ve just been fortuity in timing.” It is true that had the attorney under-
taken thorough investigation between June 15 and August 30, 2012, he would
not have uncovered Anonymous Adult, and the prejudice inquiry would be
more difficult. But that is not the circumstance before us now.

       He conducted no such investigation. Instead, on August 31, 2012, he
successfully filed an “Unopposed Motion to Continue” in which he stated,
“Counsel recently received discovery in this case. Additional time is requested
so that counsel may review discovery with Mr. Shepherd as well as to confer
with Assistant United States Attorney Tracy Thompson.” According to that
motion, the lawyer was still in the midst of his “investigation” as of August 31,
2012, such that he does not yet appear to have advised his client to plead guilty.
An attorney in his position would have discovered Anonymous Adult had he
been performing the sort of reasonable investigation that his motion suggests
he would be undertaking. Thus, “fortuitous” timing does not bar a finding of
prejudice. 30

       The government responds that even if Shepherd is not currently required
to register, he was required to do so before August 30, 2012, such that Anony-
mous Adult has no effect on this case. 31            There is a question of whether


       30See United States v. Williamson, 183 F.3d 458, 463 (5th Cir. 1999) (“An objectively
reasonable attorney, keeping abreast of legal developments related to his case, as he should,
would have discovered Bellazerius and would have noticed that we had applied Bellazerius
in another case decided before Williamson’s brief was submitted.”).
       31   The government claims that DPS is the final arbiter of whether someone must
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                                       No. 15-50991


Anonymous Adult is retroactive, but we can find no Texas case deciding that
question. Thus, that is an open question that Shepherd could have presented
at trial to disprove his duty to register.

       Moreover, the district court’s substantially-similar analysis comes up
short. 32 The court seems to have compared Arizona’s general “Public Sexual



register, see Crabtree v. State, 389 S.W.3d 820, 826, 831 (Tex. Crim. App. 2012), so even if
DPS wrongly decides a person must register, that decision stands until DPS revokes it, and
Shepherd was indicted for failure to register before DPS’s policy change. The problem with
that theory is that a DPS determination is challengeable at least through a civil appeal, such
that a court can decide that DPS wrongly required someone to register. The DPS determina-
tion is thus not unassailable by a defendant. See TEX. CODE CRIM. PROC. ANN. § 62.003(c).
       Further, the government contends that Anonymous Adult introduced a new rule for
determining whether someone must register. Shepherd responds that Anonymous Adult is
not a new rule, because it merely applies Texas Department of Public Safety v. Garcia,
327 S.W.3d 898 (Tex. App.–Austin 2010, pet. denied). Thus, Anonymous Adult confirms that
DPS was bound by Garcia and rules that its policy was in violation of that opinion. Both
interpretations are plausible. See Anonymous Adult, 382 S.W.3d at 535 (“[T]he actual analy-
sis employed in Garcia is consistent with our interpretation of [the Texas Sex Offender
Registration Act] as requiring that, except in unusual cases, the elements of the relevant
offenses be compared for substantial similarity without regard to individual facts and
circumstances.”). Ortega agreed that Anonymous Adult “didn’t change the law. It just
directed DPS to use a different way of comparing statutes.” The parties thus could have
disputed that question had Shepherd not pleaded guilty.
       32 The district court also hints that DPS made no registration determination; the court
said that “a DPS attorney opined” on whether Shepherd must register. That is a mischarac-
terization. DPS informed Shepherd that he was not required to register when he attempted
to register following his release from prison. On request of the magistrate judge that Shep-
herd provide cause to show that he did not have to register, Shepherd submitted a letter from
Ortega—then managing attorney of DPS’s crime records service department—confirming
that Shepherd did not need to register in Texas. That letter is printed on official DPS
letterhead, and Ortega testified that only “[a] district court in Travis County could” override
any determination he made.
        Additionally, though neither party discusses it, that there is ambiguity over whether
a defendant can challenge a DPS registration decision in the context of a criminal appeal.
See Crabtree, 389 S.W.3d at 831. Regardless, in the context of this appeal, we are deciding
only whether the plea on September 24, 2012, was “knowing and voluntary,” and our inquiry
is limited to the time leading up to the plea. See Washington, 466 U.S. at 690 (“Thus, a court
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                                          No. 15-50991


Indecency” statute to Texas’s “Indecency with a Child” statute and found the
two substantially similar. But the former is likely not substantially similar to
the latter. 33 The latter requires the presence of “a child younger than 17 years
of age,” but the former does not. Though Anonymous Adult allows review of
the underlying facts where an offense criminalizes conduct broader than the
comparable reportable Texas offense, in this instance Arizona has a separate
offense for public indecency to a minor.                     Thus, in reviewing Arizona’s
§ 13-403(a), we cannot remove our blinders and review the underlying
conduct. 34

            On the other hand, Arizona’s “Public Sexual Indecency to a Minor”
statute may be substantially similar. 35 But, as explained above, there is ambi-
guity as to whether Shepherd pleaded guilty of “Public Sexual Indecency” or


deciding an actual ineffectiveness claim must judge the reasonableness of counsel’s chal-
lenged conduct on the facts of the particular case, viewed as of the time of counsel’s conduct.”
(emphasis added)). Crabtree was decided on October 31, 2012—two months after Anonymous
Adult and more than one month after the plea. Thus, at the time of the plea, it had not yet
been suggested that a defendant may challenge a DPS determination only in a civil pro-
ceeding under TEX. CODE CRIM. PROC. ANN. § 62.003(c).
       33  Compare ARIZ. REV. STAT. ANN. § 13-1403(a) (“A person commits public sexual inde-
cency by intentionally or knowingly engaging in [an act of sexual contact], if another person
is present, and the defendant is reckless about whether such other person, as a reasonable
person, would be offended or alarmed by the act.”) with TEX. PENAL CODE ANN. § 21.11 (“(a)
A person commits an offense if, with a child younger than 17 years of age, whether the child
is of the same or opposite sex . . ., the person: . . . (2) with intent to arouse or gratify the sexual
desire of any person: (A) exposes the person’s anus or any part of the person’s genitals, know-
ing the child is present . . . .”).
       34In fact, Ortega testified that “21.07 of the Texas Penal Code, public lewdness, has
elements that are substantially similar, if not almost exact to the Arizona offense of public
sexual indecency.” Ortega explained that public lewdness is not a reportable offense. See
TEX. CODE CRIM. PROC. ANN. § 62.001(5) (defining reportable offenses).
       35See ARIZ. REV. STAT. ANN. § 13-1403(b) (“A person commits public sexual indecency
to a minor if the person intentionally or knowingly engages in any of the acts listed in
subsection A of this section and such person is reckless about whether a minor who is under
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                                       No. 15-50991


“Public Sexual Indecency to a Minor.” The plea document does not mention
“minor” but only says “Public Sexual Indecency.” Anonymous Adult bars us
from looking to the underlying facts when determining whether an offense is
substantially similar to a registrable Texas offense. That issue is, again, some-
thing both parties can dispute in any later proceedings. We address only
whether Shepherd’s plea was knowing and voluntary, and he has a viable
defense that he was not convicted of an offense that DPS deemed reportable. 36

       Given the totality of the circumstances, Shepherd was prejudiced by IAC,
thereby rendering his plea involuntary. The order denying the § 2255 motion
is REVERSED, and an order granting it is RENDERED.




fifteen years of age is present.”). Of note, Ortega indicated Arizona’s public sexual indecency
to a minor offense “would not be exactly substantially similar to a Texas reportable convic-
tion, but could be . . . .”
       36 Proving that a defendant was convicted of the offense that DPS finds substantially
similar is an element of proving failure to register in Texas. Crabtree, 389 S.W.3d at 832–33.
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                                 No. 15-50991
EDITH H. JONES, Circuit Judge, dissenting:


      The majority today reverses the district court’s denial of Adam
Shepherd’s § 2255 motion and then grants his motion. With due respect, this
is an unnecessary ruling because Shepherd’s Arizona conviction documents
show he was convicted of a crime that is substantially similar to Texas’s
“Indecency with a Child” statute. I respectfully dissent.
       The majority finds that Shepherd’s guilty plea was involuntary due to
ineffective assistance of counsel. The alleged deficiency by Shepherd’s defense
counsel was his failure to find a Texas Third Court of Appeals decision, Texas
Department of Public Safety v. Anonymous Adult Texas Resident, which was
issued, but did not become a final decision, during Shepherd’s prosecution
proceedings. Anonymous Adult changed the method by which the Department
of Public Safety (“DPS”) determines whether someone was required to register
as a sex offender in Texas for out-of-state offenses. 382 S.W.3d 531 (Tex.
App.—Austin 2012, no pet.). The majority incorrectly holds that Shepherd
was prejudiced by counsel’s unconstitutional ineffective failure to discover
Anonymous Adult.
      As the majority explains, Anonymous Adult directs the DPS to compare
only the elements of an out-of-state offense with the elements of a Texas
reportable offense when determining whether a person must register in Texas.
Id. at 535. The majority finds that Arizona’s general “Public Indecency”
statute is not substantially similar to Texas’s “Indecency with a Child” statute
as the district court held. The majority is correct on this point. They go on to
state that “Arizona’s ‘Public Sexual Indecency to a Minor’ statute may be
substantially similar [to Texas’s ‘Indecency with a Child’ statute].”
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                                  No. 15-50991
 Majority Op. at 16; see Ariz. Rev. Stat. Ann. § 13-1403; Tex. Penal Code Ann.
 § 21.11. The majority concludes, however, that “there is ambiguity as to
 whether Shepherd pleaded guilty of ‘Public Sexual Indecency’ or ‘Public Sexual
 Indecency to a Minor’ because “[t]he plea document does not mention ‘minor’
 but only says ‘Public Sexual Indecency.’” Id.
       Despite the majority’s conclusion, Shepherd’s plea document is not
 ambiguous. The document states that Shepherd agrees to plead guilty to
 “Attempted Public Sexual Indecency, a class 6 designated felony, in violation
 of A.R.S. 13-1403 . . . 13-1001 . . . committed on August 28, 2002.”   ROA.162.
 While this document does not explicitly state Shepherd acted toward a minor,
 Arizona law makes clear that Shepherd agreed to plead guilty to attempted
 public sexual indecency involving a minor. Section 13-1403, titled “Public
 sexual indecency; public sexual indecency to a minor; classification,” states
 that “[p]ublic sexual indecency is a class 1 misdemeanor” and “public sexual
 indecency to a minor is a class 5 felony.” Ariz. Rev. Stat. Ann. § 13-1403(c)
 (emphasis added). Section 13-1001, which is cited in Shepherd’s plea
 document as applicable law, defines an attempt and lists classifications for
 attempted crimes. It states that “Attempt is a . . . [c]lass 6 felony if the
 offense attempted is a class 5 felony.” Ariz. Rev. Stat. Ann. § 13-1001(c).
 “Attempt is a . . . [c]lass 2 misdemeanor if the offense attempted is a class 1
 misdemeanor.” Id.
      Shepherd’s plea document makes clear that his offense is a “class 6 felony.”
Arizona’s attempt classification thus tells us that the crime Shepherd attempted
is a class 5 felony when completed. Public sexual indecency to a minor is a class
5 felony. See Ariz. Rev. Stat. Ann. § 13-1403. Nondescript public sexual indecency

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                                    No. 15-50991
is a class 1 misdemeanor when completed, so an attempt would have been
classified a class 2 misdemeanor. Id. Shepherd did not plead guilty to a class 2
misdemeanor, so he must have been pleading guilty to attempted public sexual
indecency with a minor.1 This conclusion requires no consideration of the facts
underlying Shepherd’s conviction. DPS could have determined Shepherd was
required to register regardless whether Anonymous Adult applied retroactively
to Shepherd’s failure to register before August 30, 2012. Therefore, the Federal
Public Defender’s failure to uncover Anonymous Adult, even if an instance of
defective representation (which I find debatable), did not prejudice his client. I
would affirm the district court’s denial of Section 2255 relief.




      1Section 13-1001 contains no provision allowing for classification of an attempted
misdemeanor as a felony.
                                          21
