                          RECOMMENDED FOR FULL-TEXT PUBLICATION
                              Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                     File Name: 16a0145p.06

                   UNITED STATES COURT OF APPEALS
                                 FOR THE SIXTH CIRCUIT
                                   _________________


 ADAM EGGERS,                                           ┐
                               Petitioner-Appellant,    │
                                                        │
                                                        │
        v.                                               >      No. 15-3961
                                                        │
                                                        │
 WARDEN, LEBANON CORRECTIONAL INSTITUTION,              │
                         Respondent-Appellee.           │
                                                        ┘
                        Appeal from the United States District Court
                         for the Southern District of Ohio at Dayton.
                    No. 3:14-cv-00443—Thomas M. Rose, District Judge.

                                    Argued: June 14, 2016

                              Decided and Filed: June 21, 2016

                   Before: SILER, ROGERS, and SUTTON, Circuit Judges.
                                   _________________

                                         COUNSEL

ARGUED: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C., Covington, Kentucky, for
Appellant. Hilda Rosenberg, OFFICE OF THE OHIO ATTORNEY GENERAL, Cincinnati,
Ohio, for Appellee. ON BRIEF: Jeffrey M. Brandt, ROBINSON & BRANDT, P.S.C.,
Covington, Kentucky, for Appellant. Hilda Rosenberg, OFFICE OF THE OHIO ATTORNEY
GENERAL, Cincinnati, Ohio, for Appellee.
                                     _________________

                                          OPINION
                                     _________________

       SUTTON, Circuit Judge. Adam Eggers and Dustin Bryant each sought the affections of
the same woman, Julie Snyder, and each went to great lengths to be the winning suitor. In an
unfortunate effort to end the feud, Eggers fired four shots into a home where he thought Bryant




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was staying. One of the bullets struck Snyder instead, sparing the man he disliked and killing the
woman he loved.

       Eggers agreed to plead guilty to one count of felony murder. The state trial judge
conducted a guilty-plea hearing under Ohio Criminal Rule 11, during which Eggers admitted that
he committed the crime. After accepting the plea, the trial judge started the sentencing hearing
and gave Eggers an opportunity to speak—otherwise known as a right to allocute. Eggers said
the following: “I’d like to apologize to the family. You know I loved her. You know I didn’t do
this. I didn’t do this. I love you, mom. I don’t know. That’s it. I don’t know what else to say.”
R. 8-1 at 86.

       Eggers maintains that this half apology/half assertion of innocence made the earlier guilty
plea involuntary, suggested that he was actually innocent, and required the state trial court to
conduct a hearing under North Carolina v. Alford, 400 U.S. 25 (1970), to ascertain the
voluntariness of his plea, and to ensure that there was evidence supporting his plea. The state
courts upheld the guilty plea. And the district court rejected Eggers’ federal habeas petition,
holding that the state courts did not unreasonably apply clearly established Supreme Court
precedent or unreasonably determine the facts in Eggers’ case. We affirm.

                                                I.

       After the 2010 murder of Ms. Snyder, the State charged Eggers with an assortment of
crimes, including felony murder, felonious assault, and improperly discharging a firearm at or
into a home. State v. Eggers, No. 2011-CA-48, 2013 WL 3816675, at *1 (Ohio Ct. App. July 19,
2013). At what was originally scheduled to be a suppression hearing, the government and
Eggers agreed to a plea bargain and told the court as much: Eggers would plead guilty to one
count of felony murder in return for which the government would drop the other charges. See id.
at *1; see also Ohio Rev. Code § 2903.02(B). In court, the government provided a brief
recitation of the facts supporting the guilty plea: Eggers fired four shots into a home, and one of
them hit—and killed—Snyder.

       The court asked Eggers if he wanted to plead guilty “this afternoon.” R. 8-1 at 85.
“Yes,” he responded. Id. The court then discussed Eggers’ decision with him. The court asked
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if he had gone over the plea document with his lawyer and whether it was his signature that
appeared on the plea document. Eggers answered yes both times. The court asked whether the
government had promised anything besides what was written in the plea agreement or whether
anyone had threatened Eggers to get him to plead guilty. Eggers answered no. “Are you
pleading guilty voluntarily?” the court asked. Id. “Yes, sir,” Eggers responded. Id.

       After explaining the nature of his offense and the mandatory nature of his sentence, the
court pointed out everything Eggers was giving up. Eggers was waiving the right to a trial—and
with it the right to compel and confront witnesses, the right to testify on his own behalf, and the
right to be convicted only by a unanimous jury. “Understanding that,” the court asked how
Eggers wanted to plead. Id. at 86. “Guilty, Your Honor,” Eggers replied. Id. The court
“f[ound] him guilty” of felony murder “based upon that plea.” Id.

       After accepting Eggers’ guilty plea, the court stated that it would immediately “proceed
with disposition” on the conviction—namely sentencing. Id. The court then asked if there was
“anything [Eggers] wanted to say at this time.” Id. “There is,” he replied, “but I don’t know if I
can speak.” Id. After consulting counsel, Eggers continued, saying: “I’d like to apologize to the
family. You know I loved her. You know I didn’t do this. I didn’t do this. I love you, mom. I
don’t know. That’s it. I don’t know what else to say.” Id. The court sentenced Eggers to fifteen
years to life, a sentence that required little explanation because Ohio law made it mandatory for
this crime.

       Eleven days later, Eggers filed a handwritten, pro se motion to withdraw his guilty plea,
claiming he was innocent. The trial court denied the motion.

       Eggers appealed.      He challenged the voluntariness of his guilty plea, arguing
(among other things) that the court should have held an Alford hearing either to resolve the
apparent conflict between his guilty plea and his claim of innocence at the sentencing hearing or
to ensure a legitimate factual predicate for the guilty plea. See North Carolina v. Alford,
400 U.S. 25, 37–38 (1970). The Ohio Court of Appeals rejected this argument on the merits,
2013 WL 3816675, at *5, and the Ohio Supreme Court refused to review Eggers’ appeal,
999 N.E.2d 695 (Ohio 2013) (table).
No. 15-3961                 Eggers v. Warden, Lebanon Corr. Inst.                      Page 4


       Eggers turned to the federal courts. The district court denied relief on all of his § 2254
claims and granted a certificate of appealability limited to this question: Did the Ohio courts
reasonably apply Alford in resolving the apparent tension between Eggers’ guilty plea and
protestation of innocence at sentencing?

                                                II.

       We do not lightly overturn a state court’s decision that state proceedings complied with
the United States Constitution. We may do so only if the decision (1) “was based on an
unreasonable determination of the facts” or (2) “was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d). As to the factual side, we must be convinced that “the
state court’s ruling . . . was so lacking in justification that there was an error . . . beyond any
possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011); see
Burt v. Titlow, 134 S. Ct. 10, 16 (2013). As to the legal side, the state court decision must be
“objectively unreasonable, not merely wrong; even clear error will not suffice.”          White v.
Woodall, 134 S. Ct. 1697, 1702 (2014) (quotations omitted).

       The Ohio Court of Appeals’ opinion, the last decision on the merits and the one we
examine, see Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991), does not violate this forgiving
standard. In a decision by Judge Fain, the state court held that Eggers did not trigger Alford’s
requirement that a trial court ensure the factual basis of a guilty plea when a defendant protests
his innocence at the plea hearing. Any of Eggers’ statements “that could be construed as a
protestation of innocence,” it explained, “occurred after the guilty plea had been accepted” and at
sentencing, where Alford does not apply. 2013 WL 3816675, at *5.

       That was not an unreasonable reading of the facts or the law. First the facts. After the
trial court warned Eggers that he was giving up an assortment of rights and ensured that his plea
was voluntary, Eggers stated that he pleaded “[g]uilty.” R. 8-1 at 86. On that basis, the court
accepted his guilty plea and “f[ound] [Eggers] guilty.” Id. Once that happened, the court moved
to the sentencing phase of the hearing. The court would “proceed with disposition on [the felony
murder count],” it said. Id. The court in other words transitioned from taking a plea to imposing
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a sentence. Only then did the court ask Eggers if he had anything else to say and only then did
Eggers disclaim responsibility for the crime. On this record, the Ohio Court of Appeals did not
unreasonably determine the facts:         that the plea phase of the hearing had ended and the
sentencing hearing had started before Eggers mentioned anything suggestive of innocence. See
Burt, 134 S. Ct. at 16.

         Second the law. Alford’s requirement that there be a “strong factual basis” for a guilty
plea, 400 U.S. at 38, “enables a court to determine that the defendant’s guilty plea is voluntary”
and thus constitutional, United States v. Tunning, 69 F.3d 107, 111 (6th Cir. 1995). But the
requirement kicks in only if a defendant “protests his innocence” during the plea colloquy. Id.
The context in which Alford arose confirms the point. At the plea colloquy, the defendant
simultaneously pleaded guilty and asserted his innocence, noting that he pleaded guilty to avoid
the risk of a capital charge. 400 U.S. at 28. That is not this case. Eggers’ protestations of
innocence, as the state courts permissibly found, occurred after the guilty-plea hearing had
ended.    Absent a claim of innocence during the plea hearing, “there is no constitutional
requirement that a trial judge inquire into the factual basis of a plea.” Roddy v. Black, 516 F.2d
1380, 1385 (6th Cir. 1975). Eggers never claimed he was innocent until after he pleaded guilty
and after the district court accepted that plea. Eggers thus never triggered Alford. “[O]nce a
court accepts a plea agreement,” we have explained in a similar context, “it is bound by the
bargain.” United States v. Fleming, 239 F.3d 761, 764 (6th Cir. 2001) (quotation omitted). The
state court’s holding that Alford did not apply was thus not “contrary to” or “an unreasonable
application of” “clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

         Eggers, notably, fails to point to a single U.S. Supreme Court holding that applies Alford
to a protestation of innocence raised for the first time at a sentencing hearing.              “Section
2254(d)(1),” the Supreme Court has explained, “provides a remedy for instances in which a state
court unreasonably applies this Court’s precedent; it does not require state courts to extend that
precedent or license federal courts to treat the failure to do so as error.” White, 134 S. Ct. at
1706. Not only has Eggers failed to identify a Supreme Court decision applying Alford to a
protestation of innocence made after a guilty plea had been accepted, he has not identified any
court decision, state or federal, appellate or trial, that applied Alford in this setting.
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        One other point deserves mention on this score. It is not clear that Eggers’ statement
amounted to a claim of innocence in the first place. The state court suggested as much, saying
only that Eggers’ statement “could be construed as a protestation of innocence.” 2013 WL
3816675, at *5. The federal magistrate judge pushed the point further, explaining that given
“[t]he context of the killing” and the fact that Eggers’ “words were spoken in the midst of an
apology, they could have been understood as directed to [Ms. Snyder’s] family and claiming he
did not intend to kill her.” Eggers v. Warden, No. 3:14-cv-443, 2015 WL 3472960, at *10 (S.D.
Ohio June 1, 2015), report and recommendation adopted, 2015 WL 4698434 (S.D. Ohio Aug. 6,
2015). In context, the statement reads more like an admission of guilt than a protestation of
innocence: Eggers was in the midst of a heartfelt apology to the victim’s family, which is quite
understandable given his affection for Ms. Snyder but which is the opposite of a claim of
innocence. In view of his relationship with the victim, it is just as plausible to read his words as
a statement to her family (and his) that he did not intend to kill her, which in fact he did not.

        Eggers offers several rejoinders to this conclusion.         He protests that his claim of
innocence came less than two minutes after the court accepted his plea. This was “one ongoing
hearing,” he points out, and the trial court “made no announcement that the plea hearing was
over . . . that a non-lawyer would understand.” Appellant’s Br. 14–15. The trial court should
have stopped to apply Alford, as Eggers sees it, and determined whether there was a strong
factual basis for his guilty plea.

        To be sure, this is one way to read the facts, but it is not the only way—and most
importantly it is not the only reasonable way. In this setting, we ask not whether we would have
read the facts differently “in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). We
ask whether fairminded jurists could agree with the state court’s reading of the facts. See Burt,
134 S. Ct. at 16. We see no such problem here, where the trial court accepted the guilty plea and
signaled a transition before Eggers mentioned anything about his innocence. Under Alford, “it is
not incumbent upon the sentencing court to ascertain whether the defendant believes in his
innocence. Instead, it is the defendant’s duty to assert innocence and thereby bring to the court’s
attention the need to ensure a factual basis for the guilty plea notwithstanding his claim of
innocence.” Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000).
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       Nor do we see any problem with the state trial judge’s use of the word “disposition” to
describe the transition from the guilty-plea part of the hearing to the sentencing-phase part of the
hearing. The word means “the act . . . of” “arrang[ing] or settl[ing] a matter finally,” Webster’s
Third New International Dictionary 654 (2002), a description that fairly signals a shift to
sentencing. That indeed is just how the state court of appeals (which was in a better position to
know than we are) construed the state trial court’s hearing. 2013 WL 3816675, at *5.

       Even if the federal courts may not grant relief on this claim, Eggers suggests that his plea
should have been unwound on several other grounds: that he pleaded guilty only under pressure
from counsel and that counsel negotiated a plea bargain against his wishes. But Eggers never
presented these arguments to the Ohio Court of Appeals on direct review, forfeiting them there
and here. The statute that gives Eggers a potential right to relief requires a showing that the state
court made “an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2). That means that he (and we) are “limited to
the record that was before the state court that adjudicated the claim on the merits.” Cullen v.
Pinholster, 563 U.S. 170, 181 (2011). The evidence presented to the state court on direct appeal
was the transcript of the plea hearing, see 2013 WL 3816675, at *2–5, and on that basis it
reasonably determined that Eggers’ guilty plea comported with Alford and the U.S. Constitution.

       Eggers, sure enough, tried to introduce evidence regarding these other claims (mainly in
the form of affidavits from family members and friends) in a state post-conviction relief
proceeding. See State v. Eggers, No. 2012–CA–33, 2013 WL 3971380, at *4–9 (Ohio Ct. App.
Aug. 2, 2013). But he did not raise an Alford claim in that proceeding, see id. at *2–3, *8, and he
has not challenged the findings from that proceeding here.

       For these reasons, we affirm.
