Clerk
Court of Criminal Appeals
P.O. Box 12308 Capitol Station
Austin, Tx~ 78711      C.M.R.R.R.# 7014                                         2870   0001   6610' 6407

.:JJ.:in~       28,           2015
Re: Relators Leave of Court to iile Mandamus
    Petition. for Writ of Mandamus
    TEX~ R. APP. p. 9 .J (b}(l)
    Trial Co~rt Nd'~ 5591;5593 and 5617
    1A'Judicial District Cqurti~N~wtbn County Texas RECEIVED IN
                                               . COURT OF CRIMINAL APPEALS
Styled: Jarnes Allen Pelloat, R~lator
                                                                                                  JUL 15 2015
                      ·Jerome ·P~··•:gwens, Judge,, . Respondent
                      -                                .    .

Dear                Cl~rk,'            Court• of CriminaLAppeals of Texas;                    Abe\ Acosta, Clerk· .
                                                                                                      .         .



By recedpt,. pl,eas·E:· finq. enclosed one original copy of Relators Mcitioti'
for·· Leave to· file Writ·· of Maildairn.is as well .as Relators Peti ton fOr
Writ ··of :Mandams ·.including his App~ndix. ·.·      ·. ·         · ·
       .                      .                    .       .   .       ..       .
Because this is a pleading pursuant,to,TEX.                                         C,ODE'CRIM~   .PROC. art.
11.07,
 .,
       I .have included
                '    .
                        only' .one copy.·
                                   \       .                       :        .



Please file' a~d bring'·i:o the Courts attention so that it may ·consider
and is sue a ruling. · ·

Thank you·· in .advance for your kind and prompt attention in this
matter
     . .•.: .
            .
                .                      .
  .                   .   .                    .




i~~-~~-~~
Jam~s    Allen Pelloat, Relator pro se
C. T •. Terrell Unit," 1289716 ·
1300 FM 655
Rosharon;, Tx. 77 583

cc.             Jerome P. Owens, Respondent
                District Attorney, Newton County Texas                              (LESS EXHIBITS AND APPENDIX)

ENCLOSURES:
                                  . B:XHIBITS 1- Lf·

                                  APPENDIX 1- 5.3
                   IN THE COURT OF CRIMINAL APPEALS OF TEXAS


                  TRIAL COURT NUMBERS                 5591;                5593        AND 5617




                            JAMESALLEN.PELLOAT, Relator




                                                     vs.

   JEROME P. OWENS, JUDGE, 1A DISTRICT COURT;·. NEWTON COUNTY TEXAS,
                                      Respondent




        RELATOR'S MOTION FOR LEAVE OF . COURT TO FILE. PETITION FOR
                   .                         .   -                     .
    WRIT OF MANDAMUS TO COMPEL RESPONDENT TO ORDER DISTRICT; CLERK
                        .    .   .   .                     .   .   .

      TO PROCEss· APPLICATIONS'fORWRIT'OF HABEAS CORPUS'PURSUANT

                       TO   TEX~         CODE CRIM.· PROC. art. 11.07
                                                                                      ·.,_
                                                                                  !          '.


;~***-,''**-,''*********1'*-1'********'**'*******-;'(*******"'~-***-1'*****"'~'**.,''**""'*****

                                           JAMES.ALLEN PELLOAT,-RELATOR PRO SE
                                           C. T. TERRELL UNIT', '1289716
                                           t300 FM·655    .
                                           ROSHARON, TX~ 77583
                            5591;       5593     AND 5617

JAMES ALLEN PELLOAT, Relator            .§     IN THE COURT. OF CRIMINAL APPEALS

v.
JEROME P. OWENS, Judge, .
                 Respondent              §     OF.            TEXAS

        RELATOR'S MOTION FOR, LEAVE. OF' COURT FOR' WRIT' OF' MANDAMUS

        TO COMPEL' RESPONDENT TO' ORDER' DISTRICT'' CLERK. TO' PROCESS .

     APPLICATIONS FOR WRIT OF HABEAS CORPUS· PURSUANT 'TO TEX.' CODE.

                            GRIM.   PROC·~     art.   11.07

TO THE. COURT OF CRIMINAL APPEALS. OF 'TEXAS:

       JAMEs· ALLEN. PELLOAT, Relator in the above T.rial Court Numbers
                       ..       .   .
seeks Leave of .Cburt to File.Petitibn for;Writ of-Mandamus tb Compel

Respondent, Honorable· Jerome P .. Owens, Presiding -Judge of the 1A

Judicial District. Court, Newton County· Texas, to. Order· District

Clerk of·Newt9n County,_ Texas \to Process Applications for Writ of

Habe.as Corpus, pursuant to     TEX~     CODE GRIM. PROc;·.·art.      11.07~   In

support Relator states that this Court has· Jurisdiction pursuant to

TEX.   CODE GRIM. PROG~ art. 11.07 § 3(.a)

       Relator has no other remedy in law.

                                        PRAYER

       WHEREFORE PREMISES. CONSIDERED, Relator prays thi_s Court of

Criminal Appeals grant him lea~e to proceed with this P~tition.

i~--~_._c;t_~--
James Allen P~lloat, Relator pro se
C. T. Terrell Unit, 1289716
1300 FM 655           .
Rosharon, Tx. 77583


                                          -1-
                       CERTIFICATE OF SERVICE
I certify that a true and. correct copy of Relator's M~tion for Leave
of Court for Writ of Mandamus to Compel Respondent to Order District
Clerk to Process Applications for Writ of Habeas C~rpus Pursuant to
TEX. CODE GRIM. 'PROC. art. 11.07 was sent to the below by U.S. Mail
first class postage pre paid on this' the·~~k'~day of :>-"~~   ' 2015


Honorable Jerome P. Owens, Judge
lA Judicial Di~trict Court, Newton County Texas
203: Courthouse, 2nd ...: Floor
Woodville, Tx. 75979


District Attorney, Newton County Texas
lA J~dicial District Court
203 Counthouse
Woodville, Tx. 75979




                                 -2-
            IN THE COURT OF CRIMINAL APPEALS OF'TEXAS

               TRIAL COURT. NO'.S . 5591; 5593 AND 5617



                   JAMES ALLEN PELLOAT,- Relator


                                  vs.

JEROME: P. OWENS; JUDGE,· 1A DISTRICT. COURT,. NEWTON COUNTY TEXAS,
                                         Respondent




 RELATOR'S. PETI'ITON FOR WRIT 'OF 'MANDAMUS TO COMPEL RESPONDENT

 TO ORDER ·DISTRICT .CLERK TO ·PROCESS.
                                    . ·..
                                          APPLICATIONS
                                              .    . .
                                                       FOR .WRIT
                                                             .. ·.
                                                                   OF

  HABEAS CORPUS PURSUANT TO' TEX'~ CODE CRIMo' PROC •. art. 11.07
                                        :   ,·.·




                             JAMES ALLEN PELLOAT, RElATOR ~RO SE
                             C.T~ TERRELL UNIT~ 1289716
                             13.00 FM 655
                             ROSHARON, TX. 77583
                                           5591;       5593            AND    5617

 JAMES ALLEN PELLOAT, Relator                             §            IN THE COURT OF

 v.                                                       §            CRIMINAL                 . APPEALS

 JEROME   P~-OWENS,          Judge
                           Responden.t.u . ;           :.§             OF TEXAS

      RELATOR'S PETITION FOR WRIT OF.MANDAMUS·TO COMPEL RESPONDENT
                 '                !                •                          •       · ... •    -   .        •



      TO ORDER DISTRICT CLERK.TO PROCESS APPLICATIONS FOR WRIT OF

       HABEAS CORPUS PURSUANT To· TEX. CODE C'i~.-IM~>:'PROC~ art .. 11.07

 TO THE COU:RT OF CRIMINAL APPEALS OF TEXAS::·
             .                                                   .
                                                                         $e
                     '\



       JAt>:tES A.~LEN . PELLOAT, : Rela•to:f ;pr9                            in' the above Tria.l Court

 numbers ·seeks this Court ·of. Criminal                                _Appe~ls     to order the Respondent
                                                        . ,I•.


' Jerome' P~ Owens, Judge of. the 11\ Judicial District Court, Newton

 . County Tex·as . to· order the District Clerk of Newton                                                Cou~ty   Texas to

 process Relators ·Applications for Writ. of Habeas Corpus pursuant· to

 .· the statu tory :tequiremen ts of TEX. CODE CRIM. P~OC~ ~rt. 11.07 that

 has ~~en. file4 since J4ly 11; 1dizand not otherwise pro~~s~ed as

 required by         l~w~   · In       supper~~        Relatoi will ·show just cause as to

 why Mandamus should issue:

                                                   JURISDICTION

       This Court of Criminal Appeals .has jurisdiction pursuant to

 the TEXAS STATE CONSTITUTiON Article V § 5 in all criminal matters.

                                           STATEMENT DF THE CASES
                                      1.
       On July 11, 2012, Relator, . a State prisoner who is being

 confined pursuant to the above case numbers                                         submitted               his Amended

 Applications for Writ of Habeas Corpus which were subsequently

 l • See Appendix         at 15




                                                                 -1-
file marked     by the District Clerk of Newton County and copies
were returned to the Relator.
        On October       18, 2012 and November 12, 2012. Relator wrote the
District Clerk of Newton County to inquire into the disposition of
his pending Applications for Writ of Habeas Corpus                         Appendix 16-17
and has not received        ~ny    response from his inquiries.
        Finally on   Dec~mber      10~       2014,    Rel~tor   submitted to the
Presiding Judge of the 1A Judicial District                      Cbu~t   of Newton County,
T~xas    (Convicting Court) his Motion entitled as : Applicants Motion
to Compel Trial Court Judge to Order District Clerk ta                        Proc~ss

Amended Application for Writ. of Habeas. Corpus Filed J:uly 11, 2012
and brief in suppqrt in           Tri~l·Court          Numbers 559L; 5593 and 5617.
                     :               .   .
        The above Motion was sent to                 Ju~ge   Jerome P.·owens by certified
Mail, Return Rec:eipt Requested in which Relator asked for a file-
                                                         2.
marked copy of the letter presenting the Motion to Compel.
        On April 13 ,· 2015, Relator sent another iet'te.r to the Presiding
Judge of the 1A Judicial District Court, Newton· County Texas, again.
making an inquiry ihto the disposition of his Motion to Compel See
Exhibi.t-2    . Relator. advised the Respondent, Judge Jerome P. Owens
that he would wait 1fr days before seeking Mandamus.

                          ARGUMENT IN' SUPPORT OF MANDAMUS
      Relator submits to this Court of                   Crimina~   Appeals his Appendix
in which he moves this Court adopt as presented to the Respondent·


2. There are Two ( 2) records attached herein for this Court to·
   consider: Exhibits and Appendix. The Appendix follows the Exhibits
   such as. Exhibit;..l.: Applicants· Mbt-i·on to; ·Compel, Returned file
   marked•. copy ·.of ·letter presenting.. Moti'oh' to. Cdmpel.; Envelope. and
   Green .Card"a~knowledging Receipt.               ·                    ·




                                                -2-
 on December 10, 2014.                   The only exceptions to the already submitted
 Appendix to the Respondent are copies of an inquiry that Relator

 made to the Texas State Law                    ·Lib~ary       to determine whether or not

 h~s      Applications had already                be~n    disposed of by this Court and are

 incorporated .herein as Exhibit-3: Letter-· to Texas.-State . Law ·Library;

 Response and Index' o.f Applications.                                                             [;




 :L ~; · Rel:~toi'.; has not 're~eived any- tiM'Jflonse                       by Respondent at the
 date of submission of this Petition for Wtit of Mandamus.

            Relator contends that he               ~s    entitled tb·Mandamus relief for

 this       Co~rt   of Criminal Appeals to                ord~r       Respondent, Judge Oweps of.

 the 1A Judicial            Di~trict          Court,    Ne~ton       County Texas to 6rder. the

 D~strict        Clerk of Newton County Texas to process the already late
·Applications for Writ of Habeas Corpus.

            Relator has no ot;.ber remedy at law to redress the alleged harm

 and under relevant              law and factsi the act                    sotigh~           to be compelled
 is      purley ministeriai and n~t involving· a discre~lonary or.judi~ial
                                                  --.----- -   ---              --   -   -         ---------------------------
  ----   -------- ------------------ -    -- --                      -------~                 ~-




decision State ex              rel~·Yobng·~~            Sixth Judicial District Cotirt of

Appeals, 2-36          s ~w.   3d '207, 210: (Tex. Grim. App. 2007)(0riginal

proceedings)

            Relator.further contends that the act is ministerial if it does

not involve the exercise of any                         discret~on        and the.Relator                 ha~   a

clear right.to relief State ex. rel. Hill                                v~     Court df Appeals for

 the       Fifth Di~trict, 34 S.W. 3d 924, 927 (Tex. ·crim. App. 2001)( ·

Or~ginal proceedings);                   In    re Daisy, 15.6         s.w.      3d 922, 924 (Tex. App.-

Da1las 2005 orig. proceeding)

            Pursuant to the Rules of Judicial Administration, Rule 7 states

a:       A District or Statutory County Court Judge shall (6) to the




                                                        -3-
extent consistent with safeguarding the rights of litigant to the
just processing of their cases on the docket of .the Court,
including .(e)local rules, consistently              applied~   to regulating           1



procedures and timely'pleadings, discovery·and motions See TEX.
GOV. CODE§ 74.024, Rule 7 (6)(e)
        The District.Clerk is required to file the Applications and
to process them according to the provisions of TEX. CODE CRIM. PROC.
art. 11.07 § 3(b)
                                          '
        Relator has had ho alternative but td go through the presiding
Judg~    of the convicting .Court and rely on the           Judge~      to order the
                                                       .           ·.         .     .       ..
District. Clerkcof      N~wton      Couhty Texas. to process his Applications __
for Writ of Habeas         Co~pu~    pursuant to TEX: CODE.CRIM.         PROC~    art.
11.07 § 3 (b)
                                         ..
                                        CONCLUSION
        Relator   ha~   previOusly submitted his Motibri to Compel to the
Respondent with no apparant relief consistent with his duty as a
Distr~ct    Judge and      th~   administration of his docket.
        Relator presented his Motion to Compel in the orderly manner as
is required by      law~

        Rel~tor   moves that Mandamus should issue to compel the Presiding
Judge to order the District Clerk of Newton County Texas to process
his Applications for Writ of Habeas Corpus as.required by law.

                                          PRAYER
     WHEREFOREPREMISES'CONSIDERED, Relator prays for relief that
is consistent with his argument, Exhibits and Appendix as presented,
that Mandamus will issue.




                                              -4-
                           3.
   art~       11.07 § 3 (b)
   Respectfully Submitted,



   James Allen Pelloat, Relator pro se
   C.T·. Terrell UNit, 1289716
   1300 FM .655- -         -
   Rosharon, Tx. 77583
                            UNSWORN-DECLARATION.
   I, Jame~ Allen Pelloat, an Offender incarcerated at the C.T: Terrell
   Unit located in B±azoria County T~xas declare and verify that the
   cbntents he~ein are true and correct under penalty of perjury. Done·
   on this the ?::b'~ day of -:s"~~         , 2015
   _Q     -     ~G&~--~·
 ~~------~------~~~
   Jam~sAllen Pelloat, Affiant
  C.T. Tetrell Unit, 1289716
  1300 FM 655
  Rosharon, Tx. 77583

                          CERTIFICATE OF SERVICE
  I certify that a true and corre~t copy pf Relators Petition for Writ
  of Mandamus to Compel Respondent to -:··.i-::, District Clerk to Process
  Applications for .Wtit of Habeas ~brpus Pur~uant to TEX." CODE GRIM,
  PROC. art. 11.07 was sent to the bela~ by U.S. Mail, first class,
  postage pre paid on this the ?=~~ day of -:r.:~~ ~              2015

  Jerome P. Owens, Judge
  1A Distri~t Court, Newton County Texas
  203 Courthouse, 2nd. Floor
  Woodville, Tx. 75979
  District Attorney, N~wton County Texas
  1A District Court
  203 Co1i:t:t~ho~.u.!3·e-: •. ·
  Woodville, Tx. 75979


  2~--~--8-~--
  James Allen Pelloat
3, See Exhibit-4 : Letter dated May 27, 2015; Texas--st'ate Law Library in
       reference to Index for AP-76,779 (entire file) In an abundance of
       caution, Applicant submitted to the Texas State Law Library his
       inquiry into the contents of AP-76, 779 See Also_. Ex Parte Kerr,
       64 S.W. 3d 414, 419 (Tex. Court Grim. App. ZUU2)(TbiS Court stated
       that Applicant had only one bite of the apple) See & Com~are .
       Applicant's Exhibit's 3;4 (Denying Applicant that bite)TEXAS STATE
       CONSTITUTION, Article One ~Nineteen·) (Denying Due Process of the
       Law of the Land)             -5-
                           INDEX OF EXHIBITS


EXHIBIT~!:   APPLICANTS MOTION TO COMPEL: RETURNED FILE MARKED
             COPY OF LETTER PRESENTING MOTION TO COMPEL; ENVELOPE
             AND GREEN CARD ACKNOWLEDGING RECEIPT;
EXHIBIT.;.2: APRIL 13, '2015 LETTER T0 .;JUD§E 0WENS '(RESPONDENT)
             GREEN CARD ACKNOWLEDGING RECEIPT
EXHIBIT~3:   LETTER TO TEXAS 'STATE LAW LIBRARY; RESPONSE AND
             INDEX OF APPLICATIONS
EXHIBIT-4: LETTER FROM TEXAS STATE LAW. LIBRARY, DATED MAY 27, 2015
             IN6EX FOR AP 76,779
                           EXHIBIT-1

APPLICANTS MOTION TO COMPEL; RETURNED FILE MARKED COPY OF
LETTER PRESENTING MOTION TO' COMPEL; ENVELOPE AND GREEN CARD
                   ACKNOWLEDGING RECEIPT



                       (   9 . PAGES   )
            Honorable Jerome P. Owens, Judge
            1-A Judicial District Court, Newton County Texas
            203 Courthouse, 2nd. Fl.
            Woodville, Tx. 75979

            C.M.R.R.R.#                  7011 0110                0002        1573    0007

            December 10, 2014

            Re: Applicants Motion to Compel Trial Court Judge to Order
                District Clerk to Proc~ss Amended Application for Writ
                of Habeas Corpus Filed July 12, 2012 and Brief In Support
                Trial Court No's 5591, 5593 and 5617
                1-A Judicial District Court, Newton County Texas

            Styled: Ex Parte James Allen Pelloat

            Dear Judge                 Owens:
            Please find enclosed One original copy of Applicants above entitled
            motion, including his Appendix 1-55

            Please file and bring it to your Courts attention as presented.

            I am also enclosing an extra copy of this letter with a self
            addressed stamped envelope so that you may file mark the same and
            return it to me for my records.

            Thank you in advance for your kind and prompt attention in this
            matter.

           &~-~S?._~
            James Allen Pelloat, Applicant pro se
            C.T. Terrell Unit, 1289716
            1300 FM 655
            Rosharon, Tx. 77583

            ENCLOSURES: As set out above
;~:(j,s~ Post~:n' Service rr.;--~·-·':-.:: ·:·- " -·- ._:,- -- _· ~;··>~
:_·ceR:ti~IEt> IVIAILM REQE~P"'t _ ~ _·_                           : -___ ;
_: (!)omestic·Mail Only;Nq lns(!rance.Coveragft Prqvided)             :' .




                                                                                             COPY
                                                                                         ORIGINAL FILED
                                                                                             DEC 2 :J 2014
                                                                                            BREEALLEN
                                                                                     District Clerk, Newton Co.
,. ...-.--.:~w--~::""'"-~~-·-,\~·~t:r.""o.     4.   ~ ~-...:·.:-~~·-~~- ..... ~.::.>""'=-',..._,..~·~"'.--~~~~.:J:>:::;~~Y--·t;:;:o;;::...,..._,_...,_.~-~.,::.:;;,....-..--.:.~-=--···                   _ .. ~~_.._...-.,.,==--~---
                                                                                                                                                                                                                                                            ·-·~~-"""'"""'"'-'   __________   ,~---




     HONORABLE JEROME P. OWENS, JUDGE
     1-A JUDICIAL DISTRICT COURT, NEWTON COUNTY TEXAS
                                                                                                                                                              ~t~P./()t~(·!r-t:!. -~~~i~()ii~..J.:,s:~r1~)~;1f2 :tJ..:~.~{ 7/..-;~· .~.
     LO~ COURTHOUSE, 2ND. FL.
     WOODVILLE, TX.. 75979
                                                                                                                                                                         3LJ      '[)f~C:. ·.=l:i:fl9· .r:!~~i 4~ .t.



                               \,-s- \S
                                                                                                          (\u~
                                                                                                 ~                                                         JAMES ALLEN PELLOAT
                                                                                                                                                           C.T. TERRELL UNIT, 1289716
                                                                                                                                                           1300 FM 655
                                                                                                                                                           ROSHARON, TX. 77583




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                                         .,                                                                                                                                                                                   :J
                                   No.5594
JAMES ALLEN PELLOAT                    §    IN THE 1-A JUDICIAL DISTRICT
                                       §    COURT     AT
EX PARTE, APPLICANT                    §    NEWTON COUNTY,   TEXAS
    MOTION TO COMPEL TRIAL COURT JUDGE TO ORDER DISTRICT CLERK
     TO PROCESS AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS
             FILED JULY 12, 2012 AND BRIEF IN SUPPORT
TO THE PRESIDING JUDGt, 1-A JUDICIAL DISTRICT COURT:
     JAMEAS ALLEN PELLOAT, Applicant pro se in the above styled and
numbered case presents this his first motion to compel Trial Court
Judge, Honorable Jerome P. Owens to order the District Clerk of
Newton County, ..Texas to process his Amended Application for Writ
of Habeas Corpus as required by Tex. Code Crim. Proc. art. 11.07
that has been filed and pending since July 12, 2012 without due
process of   la~:   In support, Applicant will show the.presiding
Judge good cause as to why his motion and accompanying brief in
support should be incorporated within that Amended Applicatiqn for
consideration:
                           STATEMENT OF THE CASE
     Applicant was convicted in the above numbered case for felony
conduct as follows:
     " did then and there, intentionally or knowingiy, while
     an employee of a public secondary school, engage in sexual
     contact with Thomas Kinghton, a person then enrolled in
     the secondary school at which the Defendant worked, and
     Thomas Knighton was not th€ D€f€ndant's spouse"
     Applicant was represented by retained counsel, Honorable
WilliamS. Morian Jr., a licensed attorney, licensed in this state.
1. Texas State Constitution, Article One, Section Nineteen


                                      -1-
       The above Application was submitted by Applicant on April 11,
2011 and filed by the District Clerk, Newton County Texas on                April
                                                   2.
14, 2011, in conformity with TEX. R. APP. P. See TEX. R. APP. P.            73.4



       The record was transmitted to the Court of Criminal Appeals
and assigned Writ number:;#. 7 5, 934-04
       On June 22, 2011, the Court of Criminal Appeals of Texas
issued an order (Per curiam) See Appendix at 1-3        that ordered the
Trial Court to make findings of fa,ct as to whether Applicants ·
counsel was aware that the statute making improper relationship
between an educator and a student a crime was enacted in 2003
(Ordering trial counsel to provide an affidavit responding to
Applicants claim of ineffective assistance of counsel) Appendix at
p. 2
       On July 29, 2011, retained counsel filed his affidavit See
Appendix 4-6 and on 9;;:26,;:2011,   the Trial Court submitted its finding
of fact and conclusions of law, recommending that relief be denied
SeeAppendix at. p. 7-10
        On   February 15, 2012, The Court of Criminal Appeals of Texas
issued another order (Per curiam) ordering: "We have held that the
State may 'waive an illegal portion of a judgment and maintain the
remainei\,:Y of the plea agreement'" (Determining that the
complainant in the 53 case was no longer a student at the school
where    Applica~t   taught at the time the statute making improper
relationship between educator and student an offense was enacted)

-----------------··-------------------------------------~---~-------
2. The Court of Crimil·al Appeals of Texas consolidated all of Applicants
   Applications into 0t1.e order.


                                       -2-
                     The Court of Criminal Appeals of Texas further ordered the
Trial Court to determine whether the State wishes to accept such a
...        ""\
....   ~         '

modified plea agreement or whether the State wishes to have the
entire plea undone Appendix at. p. 11-lJ
                     On March 8, 2012, the Trial Court issued a Supplemental
Finding of Fact See Appendix at.              ~4,   advising the Court of Criminal
Appeals of Texas that the State accepts the plea agreement as
modified Appendix at.12 .. (2)
                     On July 1.1, .2012, Applicant submit ted his Amendment to Original
Habeas Corpus                  See Appendix at 15 - (ND-559ll7A; 5593-A; 5617-A )
                     On October 18, 2012 and on November 12, 2012, Applicant notified
the District Clerk, Newton County of the disposition of his pending
Amendemen t to Original Habeas Corpus with no response See Appendix
 at 16-17                (Letters to District· Clerk, Newton County Texas)
                         APPLICANTS BRIEF IN SUPPORT OF MOTION     TO COMPEL

                     Applicant moves this Court take judicial notice of the Clerks
  Record in Writ No's 75,934-01 thru 75,934-04, pursuant to TEX. R.
  EVID. 201 (d) for purposes of this Brief (Memorandum).
                     Texas case law cleraly states that in a Writ of Habeas Corpus
      the Applicant is entitled to One (1) Application by which the
   Court of Criminal Appeals will consider, but that in that
  Application, the Applicant must bring to the Court [a]ll issues to
   be resolved as the Applicant can only take one bite of the apple.
   See Ex Parte Kerr, 64 S.W. 3d 414, 419 (Tex. Crim. App. 2002)
                     In Applicants Clerks Record transmitted to the Court of
   Criminal Appeals, the District Clerk of Newton County Texas


                                                    -3-
indexed that Application, in particular, BRIEF IN SUPPORT OF
APPLICATION FOR WRIT OF HABEAS CORPUS See CLERKS Index at 13-77
     This Brief in support brought to the attention of the Trial
Court and the Court of Criminal Appeals that Applicants plea was
involun·tarty C.R. at 29-34 and that his counsel was ineffective
C.R. at 34-39
     Applicant stated that but for          counsel~b~ing~ineffective   he
would not have accepted the plea and taken the cases to trial.
 C.R. 32 (But for counsels errors, he would not have pleaded
guilty and would have insisted on going to trial)
                           CAUSE AND PREJUDICE
     Applicant contends that counsel was ineffective pecause he
did not know the law that was in effect and that because he failed
to investigate caused him to be convicted, caused           him to accept
the plea.
                LAFLER V. COOPER, 132 S.CT. 1376 (2012)
     Lafler v. Cooper, 132 S.Ct. 1376 (2012) was argued before the
United States Supreme Court on October 31, 2011 and decided on
March 21, 2012 See Appendix at:18-41in that a Defendants are entitled
to effective assistance of counsel during the plea bargain process
citing Strickland v. Washington,   104 S.Ct. 2052 (1984)
      Just before Lafler v. Cooper_was decided, the Court of
Criminal Appeals decided Ex Parte Moussazadeh, 361 S.W. 3d 684 (Tex. Grim.·
App. 2012)
      In Moussazadeh, the Court held that counsel was ineffective
because he did not know the parole law that was in effect for


                                      -4-
purposes of the plea bargain agreement See Appendix at 42-52,

Applicant stated that "But for the erroneous             advise of counsel,

the Applicant would not have pled guilty Slip Opinion at 8.

Appendix at 49,       The Court further stated that "Both failure to

provide correct information and providing incorrect information

violated that duty" (Assistance of counsel) Slip Opinion at 9,

Appendix at      50
     Moussazadeh was decided February 15, 2012 in which JOHNSON J.

delivered the opinion of the Court at which            PRI~E,   WOMACK,   KEASLER

HERVEY, COCHRAN and ALCALA JJ. joined. KELLER P.J. filed a

concurring opinion, Meyers J. did not participate. Slip Opinion

at 1, Appendix at 42

     This Court issued its order by which it ordered the Trial

Court to determine whether the State wishes to accept such a

modified plea agreement or whether the State wishes to have the

entire plea undone Appendix at ·12         ~   2
   L'De~piite   Applicants assertions that but for counsels errors, he

would not have accepted the plea of guilt and gone to trial.C.R.

29-34; C.R. 34-39
     Both Moussazadeh and Applicants order were issued on February

15, 2012 and Applicant might have benefitted from that opinion but
for some reason, that opinion       wa~    withh~ld.

     Applicant claims that after the Trial Courts Supplemental

Findings of Fact of March 8, 2012, he did not hear              ba~k   from the

Trial Court or the Court of Criminal Appeals insofar as a final



                                     -5-
opinion or a mandate from the Court of Criminal Appeals, thus, he

filed his Amendments to the Original Habeas Corpus.

     If Applicant is only entitled to one bite of the apple and

the Court of Criminal Appeals found that Applicant was entitled to

relief, but not enough relief to be consistent with the holding in

Lafler v. Cooper or the holding in Ex Parte Moussazadeh, despite

the fact that both cases reached the same conclusion that counsels

advise was bad and that such bad counsel violated his right under

the Sixth Amendment, both were entitled to relief.

     This Court must bear in mind that Applicant made his claim

prior to   th~   decisions in Lafler v. Cooper and Ex Parte Moussazadeh

and therefore should be entitled to the same consideration.

     No-one can:1l<Dok in to the mind of the Applicant, except the

Applicant by which he clearly stated that he would have taken his

cases to trial.·

                                CONCLUSION

     The District Clerk of Newton County Texas has a duty to file

and bring the Applications for Writ of Habeas Corpus to the Courts

attention and that of the counsel for the State of Texas but has

not done so.

     Applicant moves this Court order the Applications, Amended as

they may be processed as a matter of law or returned for non     ~o

compliance, bearing in mind that Applicant has never received a

final decision from this Court or the Court of Criminal Appeals in

his Applications.

     In any event, this :Court must so order.



                                   -6-
     In conclusion, the Trial Court, the Presiding Judge of 'the

Trial Court should so order the District Clerk to process' the

Amended Habeas Corpus as presented.
     "'
                                    PRAYER

     WHEREFORE PREMISES CQNSIDERED, Applicant prays this Court

order the Disteict Clerk of Newton County; Texas to      proc~ss   his

Amended Habeas Corpus as presented, or as a alternative order a

hearing with Applicant    prese~t   so that he may articulate what

constitutional violations have been done in these applications.



Respectfully Submitted,
~~~@~
-~~---------------------~---
James Allen Pelloat, Applicant pro se
C.T. Terrell Unit, 12&9716
1300 FM 655
Rosharon, Tx. 77583




                                     -7-
                                                     !




                      EXHIBIT-2



APRIL 13, 2015 LETTER TO JUDGE OWENS ( RESPONDENT)

         GREEN CARD ACKNOWLEDGING RECEIPT


                  (   2   PAGES   )
Honorable Jerome P. Owens, Judge
1-A Judicial District Court, Newton County Texas
203 Courthouse, 2nd. Floor
Woodville, Tx. 75979

C.M.R.R.R.# 7013    2630   0001   1653   0158

District Attorneys Office
P.O. Drawer 36
Newton , Texas 75966

April 13, 2015

Re: Request for Ruling on Applicants Motion to Compel Trial Court
    Judge to Order District Clerk to Process Amended Application for
    Writ of Habeas Corpus Filed July 12, 2012 and Brief in Su~port
    Trial Court No's 5591; 5593; 5617
    Trial Court No. 1-A Judicial District, Newton County Texas.

Styled: Ex Parte James Allen Pelloat

Dear Judge Owens:

On December 10, 2014, I served you with a copy of the above by
Certified Mail, Return Receipt Requested # 7011 0110 0002 1573        0007
and requested that you file mark in your Court and issue a ruling
as presented.
On approximately December 31, 2014, the copy of the letter   was
returned file marked December 29, 2014.

Your Honor, It has been well over 90 days since the above pleadings
have been pending in your Court. 90 days is considered to be a
reasonable amount of time for your Court to consider and iisue a
ruling. The ruling in question is merely that pursuant to the
statutory provisions of TEX. CODE CRIM. PROC. art,.11.07 that the
District Clerk file and present to the District Attorney for their
response as well as you, the presiding judge to order the writ to
be transmitted to the Court of Criminal Appeals.

By receipt I am going to wait 10 days before I seek Mandamus in the
Court of Criminal Appeals in this matter.  Please exercise your
authority and order the District Clerk to begin the process as a
matter of law.
Thank you in advance for your kind and prompt attention in this


~~-~-§~~--
James Allen.Pelloat, Applicant pro se
C.T. Terrell Unit, 1289716
1300 FM 655
Rosharon, Tx. 77583
         UNITED STATES POSTAL SERVICE


                                                                 IIIII
                  • Sender: Please print your name, address, and ZIP+4® in this box•
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                                         JAMES ALLEN PELLOAT

                                    C. T. TERRELL UNIT, 1289716                                    ~
                                                 1300 FM 655                             ~'\/
                                        ROSHARON, TX.                  77583                \




 i
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-~         or on the front if space permits.
                                                                                                            0 Yes
     1. Article Addressed to:
                                                                    If YES, enter delivery address below:   D No
   HONORABLE J lliONE P. OWENS , JUDGE
   1-A JUDICIAL DISTRICT COUR"i'
   NEWi'ON COUNTY TEXAS
 \ 203 COUR'l'HOUSE, 2 ND. flDOR
   WOODVILLE, TX. 75979                                          3. Service Type
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     2. Article
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     PS F"c\rm 3811 , July 2013                   ·Domestic Return Receipt
                           EXHIBIT-3



LETTER TO TEXAS STATE LAW LIBRARY; RESPONSE   AND INDEX OF

                          APPLICATIONS


                      (     3   PAGES    )
Librarian
Texas State Law Library
P.O. Box 12367
Austin, Tx. 78711

December 9, 2014
Re: Cost for Disposed Applications for Writ of Habeas Corpus
    Writ # 75,934-01 thru 75,934-04
    Trial Court No's 5591, 5593, 5594 and 5617
    1-A Judicial District Court, N~wton County Texas
                                        ··-~·   ..
Styled: Ex Parte James Allen :PeJJqat. ·
Dear Librarian, Texas State Law Library:
By return mail, please advise me of the exact cost for the above
disposed Applications for Writ of Habeas Corpus
Tank you in advance for   }o"ur'.~ind   and prompt attention in my request
for costs.

  Q~~e~
-~---------------------
James ~.tl~.n. PP~!~oat, Applicant/Requester
 C.T. Te;r~ll·Un~t, 1289716
 1300 fi'M 655
..E-o.sh-aro·n~· Tx. 77583
r



                                                                          PELLOAT, JAMES




                                     TEXAS STATE LAW LIBRARY
                                           P.O. BOX 12367
                                      AUSTIN, TEXAS 78711-2367

                                                                                           6 January 2015
    RE: Requesting writ applications for WR-75,934-01 through -04

    James Pelloat (#1289716)
    Boyd Unit (051)
    Teague, TX 75860-2007

    Dear Mr. Pelloat,

    Thank you for contacting the Texas State Law Library. We received your request on 12 December 2014.

    Enclosed you will find an estimate for your document delivery request. We are returning the stamps you
    enclosed with your letter. We do not accept stamps as payment for requests.

    Sincerely,
    State Law Library Reference Staff
                                                                                                                                                                    PELLOAT, JAMES




                                                                                       STATE LAW LIBRARY
                                                                                          P.O. BOX 12367
                                                                                      AUSTIN, TEXAS 78711·2367
To: James Pelloat #1289716
From: Inmate Copy Service Staff
Re: Cost of your request (#7298) for copies received December 12, 2014
Estimate #4120 dated January 6, 2015

                                                             Document Requested                                      #of Pages                Cost ..               Check to order
               ; Court of Criminal Appeals
                  --· -"   -          . -  -~    - --  --                                                                                           -
                  . WR-75,934-01 PELLOAT, JAMES ALLEN- WRIT RECEIVED
                                                                                                                        ..                  .. --   --~-   --
               ;          •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11                                       12 Pages                $3.00
                          •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS·
                          CORPUS, FILED 4/14111
                                                                                                                     65 Pages                $16.25 '
                                                                                                                                                                         D
                   Court of Criminal Appeals
                             ···-   - --        -·-   ----        .. -----   ··-·          ---·-···             .. ...                                          -
               . ... \\'_R-7_5,934-02 PELLOA!., JAMES ALLEN- WRIT_RECEIVED
               •     , •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11                                          12 Pages
                                                                                                                             ...
                                                                                                                                              $3.00
                                                                                                                                                                         D
                          •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS
                          CORPUS, FILED 4114/11
                                                                                                                     65 Pages                $16.25
                                                                                                                                                                         D
               · Court of Criminal Appeals
                   ··--                           . .          ....     -- ---···· --                    --   -·--   ····-···
                      'WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED
                        ·- --- ---· . - ... --------- .. -- ---·- ·-- -      .. --
                        •APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING
                      . RELIEF FROM FINAL FELONY CONVICTION UNDER CODE
                      . OF CRIMINAL PROCEDURE, ARTICLE 11.07
                                                                                                                      12 Pages                $3.00
                                                                                                                                                                         D
                       •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS·
                      'CORPUS (FILED 4/14/11)
                                                                                                                      65 Pages               $16.25
                                                                                                                                                                         D
                   Court of Criminal Appeals
                      · WR-75,934-04 PELLOAT, JAMES ALLEN- WRIT RECEIVED
                     -        ..  -      -- ..   .    -       .... -  .
                        •APPLICATION FOR WRIT OF HABEAS CORPUS SEEKJNG
                        RELIEF FROM FINAL FELONY CONVICTION UNDER CODE
                        OF CRIMINAL PROCEDURE, ARTICLE 11.07
                                                                                                                      12 Pages         '      $3.00
                                                                                                                                                                         D
               ·~~~~~~~-~---=---~-~---~-~~~~~~~~~~~~-+-~--~--t~~~--~~~~~~~~
                          •BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS·
                          CORPUS {FILED 4/14111)
                                                                                                                      65 Pages               $16.25                      0
                   -----

                                                                                                                                      Totalp<:_ges:j                     308                    i


                                                                                                                                           Total cost::                 $77.00
                                                                                                                                                                                 ••   --   --   j

                                                                                                                                     Tax (8.25%):                       $6.35
                                                                                                                                   Service Charge:                      $5.00
                                                                                                                              ORDER TOTAL:                              $88.35




 James Pelloat                                                                      Estimate #4120-6 Jan 2015                                                                                       $88.35
                        EXHIBIT-4

LETTER FROM TEXAS STATE LAW LIBRARY, DATED MAY 27, 2015

                ·INDEX FOR AP. 76,779


                    (   4   PAGES   )
                                                                          PELLOAT, JAMES




                                   TEXAS STATE LAW LIBRARY
                                         P.O. BOX 12367
                                    AUSTIN, TEXAS 78711-2367

                                                                                              27 May 2015
RE: AP-76,779: entire file

James Pelloat (#1289716)
Terrell Unit (027)
Rosharon, TX 77583

Dear Mr. Pelloat,

Thank you for contacting the Texas State Law Library. We received your request on 23 April 2015.

Enclosed is an estimate for the requested case file, held at the Court of Criminal Appeals.

Please note that this estimate includes documents from not only #AP-76,779, but also documents from
when it existed as a writ file, before it was file and set by the Court of Criminal Appeals, #WR-75,934-
03.

Sincerely,


State Law Library Reference Staff
                                                                                                                                             PELLOAT, JAMES




                                                                          STATE LAW LIBRARY
                                                                             P.O. BOX 12367
                                                                        AUSTIN, TEXAS 78711-2367
To: James Allen Pelloat #1289716
From: Inmate Copy Service Staff
Re: Cost of your request (#7786) for copies received April 23, 2015

    Estimate #4467 dated May 19, 2015


                                                          Document Requested                                                            I    # of Pages :/                     order
                                                                                                                                                                               ----

                                                                                                                                                                 ""I
     AP-76,779 PELLOAT, JAMES ALLEN- NOTICE RETURNED
                                                   ·~=---=--:-:·
       DISTRICT COURT PRESIDING JUDGE WHITE CARD RETURNED,   NOT DELIVERABLE AS ADDRESSED,
     » DATED 5/2/2012
    Court of Criminal Appeals          -
                                                                                           I Pages
                                                              -----·-----------'1.------'---
                                                                                                                                                                                 D.
                                                                                                                                                                              -----~

l-~.:..::_76,:79 PELLOA_T, JAMES AL~EN -I\1AN~-~~E IS_~-~~~---------·---------------·i---·-·--l=-...-:~-·---=l
<     » COURT OF CRIMINAL APPEALS: fviANDATE, SIGNED 5/21/2012 (COPY)                                                                    1     I Pag~s    l $0.25                D
      » NEWTON COUNTY -MANDATE RECEIPT ACKNOWLEDGMENT                                                                                   ;I     I Pages    ~is_t_=:cJ--il
    Court of Criminal Appeals

1-A_P,_-7_6_,7_7_9_PE_•L_L_O_A_T_,_.J_A_M_E_S_A_L_L_E_N'--'_-o_PI_N_'I_O_N_I_ss_u_E_•D - - - · - - - - - - - - - - - - - · - - :.•
   » COURT OF CRIMINAL APPEALS: OPINION -RELIEF IS GRANTED, Df\TED 04/25/2012
                                                                                                                                         r
                                                                                                                                   _ 2 ~~-L
                                                                                                                                                 p=c=.~:=-o-:.!.
    Cour·t of Criminal Appeals


                                                                                                                                                          ,-~
     WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED                                                                                                     •__            :             j

      » ACTION TAKEN- REMANDED FOR AN EVIDENTIARY HEARING/AFFIDAVITS, SIGNED 6/22/2011                                                         I Pages •    0 ,  $o.2s   .
     » TRIAL CLERK'S COVER SHEET                                     I Pages • $0.25
    -----------------------------------------------------------------~----
                                                                                                                                                                         '.      0:
     )) INDEX                                                        I Pages   $0.25                                                                                     :I      D     j
                                                                                                                                                                                       '
      » APPLICATION FOR A WRIT OF HABEAS CORPUS, FILED 4/14/2011                                                                               12 Pages          $3.00   -~-
      » BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS                                                                            65 Pages        $!6.2s •            0 :
      » RECEIPT FROM CRIMINAL DISTRICT ATTORNEY                                                                                                I Pages
                                                                                                                                                           t-·
                                                                                                                                                                 $0.25
                                                                                                                                                                                 D :
      » INDICTMENT                                                                                                                             I Pages           $0.25
                                                                                                                                                                                 D
      » JUDGMENT OF CONVICTION BY COURT
··~--------------------~------~-------------------------------~·r------
                                                                                                                                               3 Pages           $0.75
                                                                                                                                                                                 D '
                                                                                                                                                                         '
, » MOTION & ORDER NUNC PRO TUNC                                , 3 Pages
·~-------------------------------------------------------------------~-----
                                                                                                                                                                 $0.75
                                                                                                                                                                                 D
      )) CLERK'S CERTIFICATE                                                                                                                   2 Pages       . $0.50     ·,
                                                                                                                                                                                 D     i

 Court of Criminal Appeals
                                                                                         1
·~-------------------------------------------------------------------~------'r-----~----~1
  WR-75,934-03 PELLOAT, JAMES ALLEN- SUPP_CLERK  RECORD
                                              ,,______________________________:                                                          ~-------t-------J--~~--:1




      »TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 1117/2011                                                            r     I Pages           $0.25     'D
,     » INDEX                                                                                                                                  I Pages       $0.25
                                                                                                                                                          r----'r           D '
                                                                                                                                                                 -.....:::=:::---.1
                                                                                                                                                                                       i



      >>   LETTER FROM JUDGE OWENS TO DISTRICT CLERK RE TRANSMISSION OF SUPPLEMENTAL RECORD                                             '      I Pages       $0.25 ,        0 ,
:     >>   LETTER FROM COURT REPORTER TO JUDGE OWENS RE: ORIGINAL REPORTER'S RECORD ENCLOSED                                                   I Pages           $0.25           0
      >>   REPORTER'S RECORD OF PLEA                                                                                                    ,      9 Pages '         $2.25   '       D
~--------------------------------------------------------------------------·'l--------t-----~t---==---.1
      >>   CLERK'S CERTIFICATE                                                                                                                 I Pages           $0.25           D     i
 ------·----------------------------------------------,.IJ..i--------'--------''-----.',
: Court of Criminal Appeals
1-\-V~R~-7~5~,9~3~4-~0-'-3-'-P=E~L""'L~O-'-A~T-'-,J-A'-"M~E-S~A-L-L'-'E~N~'~-S-U---P.-P~R"-E-C-'-D·-'-'-~-.--~--·---:--------~--~--·--~·f"~·  -'-'---..,..F c::=
• )) ACTION TAKEN- REMANDED FOR AN            EVIDENTIARY-I·-IE_A_R_IN_G_/A-F-FID_A_V_I_TS,-~-:G_N_E--D-I-1-/2-/2-0-Il------"I--,-P-ag_e_s_. $0.25 r-~
      >> :r~~L.~~~~~·s C.?~E-~ ~~~.~.!- S~PPL~r:t~~!.~_L !R~NS_CRIPT, RECE!VED I 017/~-0·-,-,------.-_-.---_-.~-.-~-:-a-~e-:-             ..· .. $0.25 . 0.- . j         t ...
                                                                                            --------------------------..                                                                                         ---- - -----,----                 --
,--·-----~---------------~-----------""--------- ....

   » INDEX                                    ·           .
                                                                                                                                          ---------------------------------------------------~--

                                                                                                                                                                                                                   I Pages           1 $0 25 •
                                                                                                                                                                                                                                                            ~-

                                                                                                                                                                                                                                                                   D
I)   INDICTMENT
                                                                                                    ·-·-·-------··-----------'------r:::-:--
                                                                                  ·--------------·-----                                                                                                            I Pog"' -~r-.[L_
                                                                                                                                                                                                                                                                               -

  » WRITTEN PLEA ADMONISHMENTS
                                                                                                                                                                                                         '
                                                                                                                                                                                                                   6 Pages    $1 50 , D
  » GUlL TY PLEA MEMORANDUM
                                                                                                                                                                                                         I
                                                                                                                                                                                                                   3 Pages ·j $0.75   D
  » JUDGMENT OF CONVICTION BY COURT
                                                                                                                                                                                                         i
                                                                                                                                                                                                                   3 Pnges    $0.75
                                                                                                                                                                                                                                      D
  >> MOTION & ORDER NUNC PRO TUNC
                                                                                         -
                                                                                                                                                                                                                   3 Pages    $0.75 i
                                                                                                                                                                                                                                      D                                              I


                                                                                                                                                                                                                              $0.75 '
  >> AFFIDAVIT OF WILLIAM S MORlAN, JR
                                                                                                     --··
                                                                                                                                                                                                                   3 Pages
                                                                                                                                                                                                                                      D
  >>AFFIDAVIT OF ROBERT J CHOATE
                                                                                                                                                       -                                                 :         2 Pages    $0.50
                                                                                                                                                                                                                                      D
  >> FINDINGS OF FACT AND CONCLUSIONS OF LAW- COURT RECOMMENDS RELIEF BE DENIED, 9/26/2011 :                                                                                                                       4 Pages
                                                                                                                                                                                                                           'I $100    D                 !


                                                                                                                                                                                                                              $0.25 '
  >>CLERK'S CERTIFICATE
                                                                                                                                                                          -
                                                                                                                                                                                                                   I Pages
                                                                                                                                                                                                                                      D
 Court of Criminal Appeals
  WR-75,934-03 l'ELLOAT, JAMES ALLEN- STATUS (INMATE CORRESPONDENCE)
  >>LETTER FROM INMATE ARMSTRONG RE: CASE STATUS, DATED 1/26/2012
· Court of Criminal Appeals
                                                                                                                                                                                                         :1        2 Pages
                                                                                                                                                                                                                                     I    $0.50         [          D
                                                                                                                                                                                                                                                                                 -


                                                                                                                                                                                                         l
                                                                                                                                                                                                                                                        I
  WR-75,934-03 PELLOAT, JAMES ALLEN- ORDER ISSUED
                                                                                                                                                                                                                                                                                -
    COURT OF CRIMINAL APPEALS: ORDER- APPLICATION WILL BE HELD IN ABEYANCE UNTIL THE                                                                                                                                                                    i
  >>TRIAL COURT HAS RESOLVED THE FACT ISSUES, FILED 6/22/2011
                                                                                                                                                                                                                   3 Pages                $0.75
                                                                                                                                                                                                                                                        l
                                                                                                                                                                                                                                                                   D                 i

 Court of Criminal Appeals
                                                                                                                                                   -----·---------·--


                                                                                                                                                                                                         ~~Rf=
  WR-75,934-03 PELLOAT, JAMES ALLEN- 2ND SUPPLEMENTAL WRIT


r >>ACTION TAKEN- REMANDED FOR AN EVIDENTIARY HEARING/AFFIDAVITS, SIGNED 2115/2012
  >>TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPTS, RECEIVED 12/27/2011
~»SUPPLEMENTAL FINDINGS OF FACT
   ~~----------------------     -· ....   --~~-   ········---   -··----~   .. ·····- '''"'"'"'''·   ··········-·-·-···------·-"····-···   ·····---~----------------------------   ········- ...   ----   _\
                                                                                                                                                                                                             0
                                                                                                                                                                                                             1     I Pages            1
                                                                                                                                                                                                                                           $0.25 ·
                                                                                                                                                                                                                  ....... ·--···-···! ...... , .....
                                                                                                                                                                                                                 I07 Pages 1
                                                                                                                                                                                                                                                       -!·· · ....................

                                                                                                                                                                                                                                                                   D
  >> CLERK'S CERTIFICATE
 Court of Criminal Appeals
                                                                                                                                                                                                                   I Pages           1
                                                                                                                                                                                                                                                                   o
  WR-75,934-03 PEL LOA T, JAMES ALLEN- 3RD SUPPLEMENTAL WRIT
  »ACTION TAKEN- FILED & SET/GRANTED, SIGNED 4/25/2012                                                                                                                                                             1 Pages                 $0.25                  D
  » TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 3/19/2012                                                                                                                                         l Pages                 $0.25
                                                                                                                                                                                                                                                                  D
  »INDEX                                                                                                                                                                                                           I Pages                 $0.25
                                                                                                                                                                                                                                                                  D
  »CAPTION                                                                                                                                                                                                         l Pages                $0.25 i
                                                                                                                                                                                                                                                                  D
  » ELECTION BY THE CRIMINAL DISTRICT ATTORNEY                                                                                                                                                                     l Pages                $0.25
                                                                                                                                                                                                                                                                  D
  »SUPPLEMENTAL FINDINGS OF FACT                                                                                                                                                                                   I Pages                $0.25
                                                                                                                                                                                                                                                                  D
  >> CLERK'S CERTIFICATE                                                                                                                                                                                           l Pages                 $0.25
                                                                                                                                                                                                                                                                  D
                                                                                                                                                                                                                                  Total pages: i                  260
                                                                                                                                                                                                                                     Total cost:        1
                                                                                                                                                                                                                                                               $65.00
                                                                                                                                                                                                                               Tax (8.25%): •                   $5.36
                                                                                                                                                                                                                           Service Charge: :
                                                                                                                                                                                                                                            --                  $5.00
                                                                                                                                                                                                                      ORDER TOTAL:;                            $75.36
Note: To request specific documents plense only check the items desired and resubmit this form so that the Document Delivery Service may
recalculate the copy job cost and supply you with a revised estimate and order form. If you wish to order all the documents listed above, please
check below and return 1 copy of th1s form and payment for the total amount above to order copies.
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COURT RECORDS ARE SUBJECf TO THE AVAILABILITY PROVIDED BY THE COURTS.
                                Please rello·n this entire sheet with uow• request!
                                UNIT/ ADDRESS COPIESARETO BE_ SENT TO:                -
                                         James Allen Pelloat- #1289716
                                               Terrell Unit (027)
                                                 1300 FM 6ss                          1

                                              Rosharon, TX7?58~
                                                  PAYMENT
                                               0 Cashier's Check
                                                0 Money Order
                                          0 Inmate Trust Fund Check
                                             Payment Due: $75.36
                                       Send payment and this fo1·m to:
                                             STATE LAW LIBRARY
                                            DOCUMENT DELIVERY
                                                PO BOX 12367
                                            AUSTIN, TX 78711-2367. ·




James Pelloat                         Estimate #4467-19 May 2015                          $75.36
                                 APPENDIX                      PAGE

COURT OF CRIMINAL APPEALS ORDER.OF JUNE       22, 2011    1- 3
RETAINED COUNSELS AFFIDAVIT                               4- 6
TRIAL COURTS FINDINGS OF .FACT                            7- 10
COURT OF CRIMINAL APPEALS ORDER.OF FEBRAUARY 15, 2012     11-12
TRIAL COURTS   SUPPLEMENTAL FINDINGS OF FACT              13
APPLICANTS SUBMITTED AMENDMENTS TOORIGINAL
HABEAS CORPUS APPLICATIONS                                14-16
APPLICANTS LETTERS TO DISTRICT CLERK                     . 17-18
Lafler v. Cooper, 132 S.Ct. 1376     {2012)               19-42
Ex Parte Moussazadeh, 361 S.W. 3d 684 (2012)              43-53
COURT OF CRIMINAL APPEALS ORDER DF JUNE Z2, 2011




                 (   3   PAGES   )
              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
          NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04



                     EX PARTE JAMES ALLEN PELLOAT, Applicant



         ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
 CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT COURT
                        FROM NEWTON COUNTY



        Per curiam.

                                             ORDER

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

 clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte

 Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered into a plea agreement

 whereby he pleaded guilty to two charges of sexual assault of a child, and two charges of improper

· relationship between an educator and a student. He was sentenced to twenty years' imprisonment

 for each charge, with the sentences in two of the four charges running consecutively, and the other

 two sentences running concurrently. He did not appeal his convictions.

        Applicant contends, inter alia, that the trial court lacked jurisdiction to entertain the plea




                                                                                                           I
                                                                                                        2

agreement, that his pleas were not knowingly and voluntarily entered, and that his trial counsel

rendered ineffective assistance because he failed to investigate and discover that one of the offenses

to which Applicant pleaded guilty was not a separate crime at the time it was alleged to have been

committed.

        Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

4G6 U.S. 608 (i984), Expune Lernke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). in these

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court

shall order Applicant's trial counsel to provide an affidavit responding to Applicant's claim of

ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM.

PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection.

Id.

       If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If

Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an

attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04.

       The trial court shall make findings offact as to whether Applicant's trial attorney was aware

that the statute making an improper relationship between an educator and a student a crime was

enacted in 2003. If counsel was aware of this fact, the trial court shall make findings as to why

counsel allowed Applicant to plead guilty to the offense in cause number 5594, which was alleged

to have been committed in 2001, prior to the effective date of Texas Penal Code §21.12. The trial

court shall make findings as to whether the performance of Applicant's trial attorney was deficient

and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also
                                                                                                       3

make any other findings of fact and conclusions of law that it deems relevant and appropriate to the

disposition of Applicant's claim for habeas corpus relief.

        This application will be held in abeyance until the trial court has resolved the fact issues. The

issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the

order granting the continuance shall be sent to this Court. A supplemental transcript containing all

affidavit~   and interrogatories or the transcription of the court reporter's notes from any hcEring or

deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall

be returned to this Court within 120 days of the date of this order. Any extensions of time shall be

obtained from this Court.                                                                                       ' ..
                                                                                                                 ~




Filed: June 22, 2011
Do not publish




                                                                                                            3
RETAINED COUNSELS AFFIDAVIT




      (   3   PAGES   )
                   IN THE COUR OF CRIMINAL APPEAL
                              OF TEXAS

                            ============
    NOS. WR-75,934-01, WR-75-934-02, WR-75-934-03 & WR-75-934-04
                            =====;:=========

             EX PARTE JAMES ALLEN PELLOAT, Applicant



=============================·         =··===-==================
      ON APPLICATIONS FOR ~ 7 R!TS OF HABE_4.S COF.J>TJS
 CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT
               COURT FROM NEWTON COUNTY



                AFFIDAVIT OF WILLIAM S. MORlAN, JR.


      BEFORE ME, the undersigned authority, on this day personally appeared

WilliamS. Morian, Jr., who being by me duly sworn under oath and affirmed as

follows:

       "My name is WilliamS. Morian, Jr. As counsel for the Defendant, James

Allen Pelloat, in each of the cases the subject of this Writ of Habeas Corpus, I

advised my client of all legal aspects in these cases including the elements of each

one of the· crimes needed to be proven by the State beyond a reasonable doubt as

well as the range of punishment for each of the alleged crimes. I also discussed

with Mr. Pelloat the possibility of the convictions running consecutively in the

event that he was found guilty on those charges.



                                                                                       Lf
      "In Cause Nos. 5618 and 5594 involving improper relationship between an

educator and a student under Section 21.12 of the Texas Penal Code, the dates of

the offenses set forth in the indictments are obviously prior to the enactment date

of Texas Penal Code Section 21.12. I do not have any independent recollection of

any discussions with Mr. Pelloat about the enactment and effective date of Texas

Penal Code Section 21.12. However, I did advised Mr. Pelloat that the exact date

of the alleged offense did not have to be proven specifically as long it was proven

that the alleged act occurred within the statute of limitations for the particular

offense and before the date of the indictment. The statements of the victims were

reviewed with Mr. Pelloat as was all other evidence. Specifically, the statement of

Thomas Knighton which pertains to Cause No. 5594 stated that the last occurrence

that involved him and Mr. Pelloat was on October 31, 2004, which would have

been after the date of the enactment or affective date of Section 21.12 of the Texas

Penal Code.

      "Based on all evidence available to Mr. Pelloat and myself including the

statements of all victims and Mr. Pelloat's confession, the decision was made by

Mr. Pelloat with my advice to accept the plea offer in order to avoid the potential

of a much more lengthy prrsun sentence if he were convicted on the charges and

all sentences ordered to be run consecutively. If the charges under Section 21.12

of the Texas Penal Code were not prosecuted, I believe Mr. Pelloat would have

still faced more than forty years if he were convicted and the sentences were

ordered to run consecutively."


                                         2
                   SUBSCRIBED AND SWORN TO before me by WilliamS. Morian, Jr., on
           this the 29th day of July, 2011.



.-   ·,.




                                             3
TRIAL COURTS FINDINGS OF FACT



       (   4   PAGES   )
                                        =====================
                              EX PARTE JAMES ALLEN PELLOAT, Applicant

                    ==================================================
                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NOS. NO 5591, 5593, 5617 & 55941N THE lA JUDICIAL DISTRICT COURT
                               FROM NEWTON COUNTY
                  ===================================================
                            FINDINGS OF FACT AND CONCLUSIONS OF LAW


   Applicant filed an application for post conviction writ of habeas corpus. This Court is bf the

opinion that a hearing is not necessary and chooses to rely on affidavits and hereby entJrs the

following Findings of Fact and Conclusions of Law.


                                            I.   FINDINGS OF FACT

   1. Applicant was indicted for six felony offenses:

       Cause Number 5591-lmproper Relationship Between Educator and Student I

       6aus.e.J'wmbe r-559.2 .-::.Aggr-avated -Sexoat~-ss·acrtt
       Cause Number 5593- Sexuai,Assault
                                    '   .

       Cause Number 5594 -Improper Relationship Between Educator and Student 0

       Cause Number 5617- Sex~.al Assault
                                                                                           1
                                                                                           I
       Cause-Number-s-6-18--tmp-nrp·eTRelation-shlp-Between-Educatorcmu-stud~t.            I
   2. Applicant entered into a plea bargain with the State and plead guilty to the following
                                                                                           I

       charges:                                                                            \


       Cause Number 5591-lmproper Relationship Between Educator and Student
                                                                                           II


                                                                                                    7
    Cause Number 5593 -Sexual Assault

    Cause Number 5594 -Improper Relationship Between Educator and Student

    Cause Number 5617- Sexual Assault.

3. Cause numbers 5592 and 5618 were both dismissed.

4. Applicant was sentenced to twenty (20) years confinement on all four cases.          I
5. Cause number 5617 (Sexual Assault) was to run consecutive to the sentence in Icause

   number 5593 {Sexual Assault). All other sentences would run concurrently.

6. The indictment in cause number 5594 alleged an offense date of November 7, 2001,

   which was prior to the enactment of the "Improper Relationship" statute. (Penal Code

   Section 21.12).

7. The date of offense reflected in the judgment and sentence in cause number 5594 was

   November 7, 2004. This date coincides with the offense dates alleged in cause nulnbers

   5591 and 5593, which is after the enactment of Penal Code Section 21.12.

8. Evidence was provided Applicant's trial counsel pursuant to his motion for discovery,

   which included the victim's statement, Applicant's statement as well as other evidence,
                                                                                         i
   that indicated the conduct constituting the offense alleged in cause numbei 1 5594

   continued until the time immediately prior to Applicant's arrest in 2004, aftJr the

   enactment of Penal Code Section 21.12.

                                                                                         1
9. Applicant's trial counsel advised Applicant of all legal aspects in these cases including

   the elements of each one of the crimes needed to be proven by the State beyond a

   reasonable doubt as well as the range of punishment for each of the alleged crimes.
                                                                                           II
                                                                                           I


10. Applicant's trial counsel advised Applicant of the possibility of the convictions   run~ing
                                                                                           I

                                                                                           I
   consecutively in the event that he was found guilty.                                    1




11. Applicant's tria I counsel advised Applicant that the exact date of the alleged offenle did
                                                                                           I
   not have to be proven specifically as long as it was proven that the alleged act occLrred

   within the statute of limitations for the particular offense and before the date of the

   indictment.                                                                             1




12. Applicant's trial counsel was aware of the effective date of the statute making an     I
   improper relationship between an educator and student a crime.

13. Applicant's trial counsel allowed Applicant to plead guilty to the offense in cause
                                                                                           I
   number 5594 because there was evidence that the prohibited conduct continued until

   2004 and would have constituted an offense after the effective date of Texas Penal

   Code section 21.12.

14. Applicant's trial counsel further allowed Applicant to plead guilty to that offense

   because he believed he (Applicant) would have potentially received a much more

   lengthy prison sentence if convicted on all charges.                                        ·

15. The sentence in cause number 5594 runs concurrent with other sentences impos.l and

   therefore does not affect the amount of time Applicant will have to serve.

                                 II. CONCLUSIONS OF LAW

1. Applicant's plea was entered knowingly and voluntarily.

2. Applicant's trial counsel's conduct was not deficient conduct that fell below the

   standards of performance required of counsel in criminal cases.

3. Applicant's trial counsel did not render ineffective assistance of counsel.




                                                                                                   9
                                                                                              i
                                                                                              I

   4. Applicant has failed to meet his burden of proof by a preponderance of the eviderice.
                                                                                              I
                                                                                              i

   5. Applicant is not entitled to the relief requested in his Application for Writ of   Habe~s

       Corpus.
                                                                                              I
   Having considered the evidence as set forth before this Court and in light of the foreg6ing
                                                                                                  I
Findings of Fact and Conclusions of law, it is the opinion of this Court that the relief prayed for

                                                                                                  I
in this case be DENIED.
                                                                                                  I
    ;t is further ORDERED that copies of this document be served on the Applicant and coJnsel
                                                                                                  '

for the State.


   Signed and entered on this   ~day of~~                                            ,2011.




                                             NEWTON COUNTY, TEXAS
COURT OF CRIMINAL APPEALS ORDER"OF FEBRUARY 15, 2012




                   (2..   PAGES   )
                                                             .·,'                               -;;
                                                              '




               IN THE COURT OF CRIMINAL APPEALS
                           OF. TEXAS··
                                           NO. AP-76,779 ·


                     EX PARTE J;\MES ALLEN PELLOAT, Applicant


           .... · ONAP~L~CATION }fOR WRIT OF HABEAS CORPUS·
             . CAUSE NO. 5594 IN THE JUDICIAL DISTRICT COURT lA
                             FROM NEWTON COUNTY


        Per curiam.

                                            OPINION

        Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the

;6Ierk of the tri~ court transmitted to this Court this application for writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty pursuant to a

"package" plea agreement to two charges of sexual            assa~lt   of a child, and two charges of improper

relationship between educator and student. Pursuant to the plea agreement, Applicant was sentenced

to twenty years' imprisonment for each offense, 'With the sentences in cause riumbers 5992 and 5617

to run consecutively, and the remaining sentences to run concurrently. He did not appeal his                          .
convictions.


                                                     ,•.;'
                                                                                                                 \\
,.
      I

                                                                                                               2

                  Applicant contends, inter alia, that his plea was involuntary because trial counsel failed to

           advise him that one of the charges was not an offense at the. time it was committed. We remanded

           this application to the trial court for findings &f~ct and conclusions of law,

                  Trial counsel and the trial prosecutor filed affidavits with the trial court. Based on those

           affidavits and the documents in the supplemental record, the trial court has-determined that the

           complainant in the .,.03 case was no longer a student at the school whereApplicant taught at the time

           the statute making improper relationship between educator and student an offense was enacted.

           Applicant is entitled to relief. Exparte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).

                  Relief is granted. The judgment in Ca~~-~A~ in the Judicial District Court 1A of
                                '\.         ·-          ~-~           ·,··.   ·.                 .
           Newton County is set aside. The remainder of the judgments and sentences stand pursuant to the

           plea agreement.                                                             ./
                                                                                        I
                                                                                   .   I


                  Copies ofthis opinion shall be sent to the Te~as Department ofCtiminal Justice-Correctional

           Institutions Division and Pardons and Paroles Division.

     I?.




           Delivered: April25, 2012
           Do Not Publish




                                                                                                                   l)
TRIAL COURTS SUPPLEMENTAL FINDINGS OF FACT




              (   1   PAGE   )
                                    ---------------------
              NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04
                                   ---------------------
                            EX PARTE JAMES ALLEN PELLOAT, Applicant

                    --------------------------------------------------
                    ON APPLICATION FOR A WRIT OF HABEAS CORPUS
        CAUSE NOS. NO 5591, 5593, 5594 & 5617 IN THE 1A JUDICIAL DISTRICT COURT
                               FROM NE\NTON COUNTY
                  ===================================================
                                SUPPLEMENTAL FINDINGS OF FACT


   These Finding!: of Fact supplement the Findings of Fact and Conclusions of Law previously

filed with this Court.


                                         I. FINDINGS OF FACT

    1. The State has elected to waive the illegal portion of the plea agreement of Applicant

       (Judgment and Sentence in Cause Number 5594) and maintain and adhere to the

       remainder of the plea agreement (Judgment and Sentence in Cause Numbers 5591,

       5593 and 5617).

   2. The State accepts the plea agreement as modified.

   3. The District Clerk of Newton County, Texas shall notify the Court of Criminal Appeals of

       Texas ofthe Court's Supplemental Findings of Fact.


   Signed and entered on this   __f_ day of ~                                    12012,




                                            NEWTON COUNTY, TEXAS
APPLICANTS SUBMITTED' AMENDMENTS TO ORIGINAL HABEAS CORPUS



                      (   3   PAGES   )
                AMENDMENT TO ORIGINAL HABEAS CORPUS
                                                                                                        COPY
                                                                                                    ')F(IGiNAL FiLED
                             Case No. ND-5591-A
                              (The Clerk of the convicting court will fill this line in.)              .JUI_ 11 2012
                                                                                                .      BREEALLEN
                    IN THE COURT OF CRIMINAL APPEALS OF TEXASJ!strict Clerk, Newton Co.

                   APPLICATION FOR A WRIT OF HABEAS CORPUS
                 SEEKING RELIEF FROM FINAL FELONY CONVICTION
                UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


.NAME: __J_a_m_e_s_A_l_l_e_n
                           __P_e_l_l_o_a_t_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

.DATEOFBIRTH:    April 20, 1947
.PLACE OF CONFINEMENT: Stringfellow Unit TDCJ

.TDCJ-CID NUMBER: _1_2_8_9_7_1_6_ _ __                           SID NUMBER:                07415408

(1)     This application concerns (check all that apply):

        £3'      a conviction                                   0         parole

        0        a sentence                                     0         mandatory supervision

        0        time credit                                    0         out-of-time appeal or petition for
                                                                          discretionary review


(2)     What district court entered the judgment of the conviction you want relief from? ·
        (Include the court number and county.)

 1-A          Judicial Diatrict Court- Ner.1ton County
(3)     What was the case number in the trial court?

         5591

(4)     What was the name of the trial judge?

        Monte Lawlis




                                                                \' 5      Cooy
                                    ~\~caM                                   -'
                                                           1



Revised: September I, 20 II
                                                                                                              \~
                                                                                                       ATC-11.07
         ,.

                                                                                                                                    .re   o~J
                                                                                                                                    ~    ~ ~
                    .;·       \                                                                                                   ORIGINAL FiLED
                                           AMENDMENT TO ORIGINAL HABEAS CORPUS
                                                                  Case No. ND-5593-A                                               JUL 11 2012
                                                        (The Clerk of the convicting court will fill this line in.)
                                                                                                                                 BREE.4LLEN
                                                                                                                          District Clerk, Newton Co.
                                                  IN THE COURT OF CRIMINAL APPEALS OF TEXAS
                                                                                                                                                 II
                                                APPLICATION FOR A WRIT OF HABEAS CORPUS
                                              SEEKING RELIEF FROM FINAL FELONY CONVICTION
                                             UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07
                                                                                                                                                 c::·.



                  .NAME:                  J arne s Allen· Pe lloa t

                  DATE OF BIRTH:       April 20, 194 7
                  :PLACE OF CONFINEMENT: Strlngfellow Unl t 'l'DCJ

                  TDCJ.:.CID NUMBER:                         12 8 9 716                    SID NUMBER: 0741 5408

                  (1)             This application concerns (check all that apply):

                                  !iQ         a conviction                                0         parole

                                  0           a sentence                                  0         mandatory supervision

                                  0           time credit                                 0         out-of-time appeal or petition for
                                                                                                    discretionary review


                  (2)             .What district court entered the judgment of the conviction you want relief from?
                                  (Include the court number and county.)·

                                        1-A Judicial District Court- Newton Co!lnty

                  (3) .   I
                                  What was the case number in the trial court?
                                             ND- 5593

                  (4)             What was the name of the trial judge?

                                        MontE Lawlis




..   '

                                                                                                                                                         ,..
                  Revised: September!, 2011                                                                                          ATC-1 L07

          "   '                          . '·''                                                                       \ .•.
                                                                                                                              \
              AMENDMENT TO                    ORIGINAL HABEAUS CORPUS                                        COPY
                                                                                                         OF<IG/f\JAL FiLED
                                           CaseNo.ND- 5617-A
                              (The Clerk of the convicting court will till this line in.)
                                                                                                           JUL'   1
                                                                                                                  _....   1 ,_?Q41')L
                                                                                                                          ..~.....




                                                            . . BREE ALLEN
                                                          D!stnct Clerk N
                   IN THE COURT OF CRIMINAL APPEALS OF TEXAS           ' ewton Co.

                  APPLICATION FOR A WRIT OF HABEAS CORPUS
                SEEKING RELIEF FROM FINAL FELONY CONVICTION
               UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07


_NAME:      James Allen                  Pelloat
.DATE OF BIRTH: April 20, 194 7
.PLACE OF CONFINEMENT: Stringfellow                                          Unit, TDCJ

TDCJ-CID NUMBER:             _,1""""'2"---"8'--"9'--'-7-=1~6-'-._ _ __   SID NUMBER: 0_,_7=4""'-1=--54-'-'0"'--'8"------

(l)     This application concerns (check all that apply):

       ~        a conviction                                             0      parole

        0       a sentence                                               0      mandatory supervision

        0       time credit                                              0      out-of-time appeal or petition for
                                                                                discretionary review


(2)     What district court entered the judgment of the conviction you want relief from?
        (Include the court number and county.)

       1-A Judicial District Court- Newton County
(3)     What was the case number in the trial court?



( 4)    What was the name of the trial judge?

            Monte Lawlis




                                                                                                                                     1(o
Revised: September 1, 2011                                                                                   ATC-11.07                  •
                                    .•
APPLICANTS LETTERS TO DISTRICT CLERK




           (   2   PAGES   )
                                                                                                                                                                                               ,.




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                                     1
LAFLER V. COOPER, 132 S.Ct. 1376   (2012)




           (   24   PAGES   )




                                            t
                                            ..v;.~ ...\".'

                                                ;f.          ·.
                                                '•
West law.
                                                                                                      Page I
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)


                                                           joined in part.

        S·upreme Court of the United States
            Blaine LAFLER, Petitioner                           Justice Ali to filed a dissenting opinion.
                        v.
                                                                              West Headnotes
                Anthony COOPER.
                                                            [1] Criminal Law 110 €=1731
                   No. 10-209.
               Argued Oct. 31, 20 II .                      II 0 Criminal Law
              Decided March 21, 2012.                           II OXXXT Counsel
                                                                    11 OXXXI(B) Right of Defendant to Counsel
Background: After affirmance of convictions and
                                                                         II OXXXI(B)2 Stage of Proceedings as
sentence, 2005 WL 599740, petitioner, a. state in-
                                                            Affecting Right
mate who had been convicted of several offenses,
                                                                          11 Ok 1731 k. Guilty pleas; plea negoti-
including assault with intent to murder, after reject-
                                                            ations, plea hearings, motion to withdraw. Most
ing a guilty plea based on the advice of counsel,
                                                            Cited Cases
and who had been denied state postconviction re-
                                                                 Defendants' Sixth Amendment right to counsel
lief, sought federal habeas cor;JUs relief, claiming
                                                            extends to the plea-bargaining process. U.S.C.A.
ineffective assistance of counsel. The United States
                                                            Const.Amend. 6.
District Court for the Eastern District of Michigan,
Denise Page Hood, J., 2009 WL 817712, condition-            [2] Criminal Law 110 €=1920
ally granted the petition, requiring the state to offer
petitioner the plea deal that he would have taken           I 10 Criminal Law
but for his attorney's ineffective assistance. State             II OXXXI Counsel
appealed. The United States Court of Appeals for                     11 OXXXI(C) Adequacy of Representation
the Si::th Circuit, Cornelia G. Kennedy, Circuit                         II OXXXI(C)2 Particular Cases and Issues
Judge, 3 76 Fed.Appx. 563, affinned. State's peti-                           11 Ok 1920 k. Plea. Most Cited Cases
tion for certiJrari was granted.                                  During plea negotiations defendants are en-
                                                            titled to the effective assistance of competent coun-
Holdings: The Supreme Court, Justice Kennedy,               sel. U.S.C.A. Const.Amend. 6.
held that:
( 1) petitioner was prejudiced by counsel's deficient       [3] Criminal Law 110 €=1920
perfonnance in advising petitioner tci reject the plea
offer and go to trial, and                                  1 l 0 Criminal Law
(2) proper remedy for counsel's ineffective assist-              II OXXXI Counsel
ance was to order the State to reoffer the plea                      II OXXXT(C) Adequacy of Representation
agreement, and then, if petitioner accepted the of-                      11 OXXXJ(C)2 Particular Cases and Issues
fer, the state trial court could exercise its discretion                     II Ok 1920 k. Plea. Most Cited Cases
regarding whether to resentence.                                  The two-part Strickland , .. Washington test for
                                                            ineffective assistance of counsel applies to chal-
    Vacated and remanded.                                   lenges to guilty pleas based on ineffective assist-
                                                            ance of counsel. U.S.C.A. Const.Amend. 6.

     Justice Scalia filed a dissenting opinion, which       [4] Criminal Law 110 €=1882';· >;
Justice Thomas joined and Chief Justice Roberts

                                                                                                                     .·,·:·




                            © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                      Page 2
I32 S.Ct. I376, I82 L.Ed.2d 398,80 USLW 4244, I2 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



II 0 Criminal Law                                            11 0 Criminal Law
    I I OXXXT Counsel                                            11 OX XXI Counsel
         11 OXXXI(C) Adequacy of Representation                      11 OXXXI(C) Adequacy of Representation
             11 OXXXI(C) I In General                                    110XXXI(C)2 Particular Cases and Issues
                  11 Ok 1879 Standard of Effective As-                      110k1920 k. Plea. Most Cited Cases
sistance in General                                               In the context of a defendant having rejected a
                     11 Ok 1882 k. Deficient representa-    plea offer from the prosecution based on the defi-
tion in general. Most Cited Cases                           cient advice of counsel and having stood trial, the
     The performance prong of the Strickland test           defendant, to establish the prejudice prong of the
for ineffective assistance of counsel requires a de-        Strickland test for ineffective assistance of counsel,
fendant to show that counsel's representation fell          must show that but for the ineffective advice of
below an objective standard of reasonableness.              counsel there is a reasonable probability that the
U.S.C.A. Const.Amend. 6.                                    plea offer would have been presented to the court,
                                                            i.e., that the defendant would have accepted the
[5] Criminal Law 110     ~1883                              plea and the prosecution would not have withdrawn
                                                            it in light of intervening circumstances, and also
II 0 Criminal Law
                                                            that the court would have accepted its terms, and
    110XXXI Counsel
                                                            that the conviction or sentence, or both, under the
       11 OXXXI(C) Adequacy of Representation
                                                            offer's terms would have been less severe. than un-
           11 OXXXI(C) 1 In General
                                                            der the judgment and sentence that in fact were im-
                 11 Ok 1879 Standard of Effective As-
                                                            posed. U.S.C.A. Const.Amend. 6.
sistance in General
                    11 Ok I 883 k. Prejudice in general.    [8] Criminal Law 110    ~1718
Most Cited Cases
     To establish the prejudice prong of the Strick-        110 Criminal Law
land test for ineffective assistance of counsel, a de-         11 OXXXI Counsel
fendant must show that there is a reasonable prob-                 II OXXXI(B) Right of Defendant to Counsel
ability that, but for counsel's unprofessional errors,                  11 OXXXI(B)2 Stage of Proceedings as
the result of the proceeding would have been differ-        Affecting Right
ent. U.S.C.A. Const.Amend. 6.                                                II Ok 1718 k. Critical stages. Most
                                                            Cited Cases
[6] Criminal Law 110     ~1920                                  The Sixth Amendment requires effective assist-
                                                            ance of counsel at critical stages of a criminal pro-
11 0 Criminal Law
                                                            ceeding. U.S.C.A. Const.Amend. 6.
    II OXXXI Counsel
        II OXXX!(C) Adequacy of Representation              [9] Criminal Law 110    ~1718
            11 OXXXI(C)2 Particular Cases and Issues
                J!Okl920 k. Plea. Most Cited Cases          110 Criminal Law
     In the context of pleas, to establish the preju-           1 I OXXXI Counsel
dice prong of the Strickland test for ineffective as-                11 OXXXI(B) Right of Defendant to Counsel
sistance of counsel, a defendant must show the out-                       11 OXXXI(B)2 Stage of Proceedings as
come of the plea process would have been different          Affecting Right
with competent advice. U.S.C.A. Const.Amend. 6.                                II Ok 1718 k. Critical stages. Most
                                                            Cited Cases
[7] Criminal Law 110     ~1920                                   The Sixth Amendment's protections against in-
                                                            effective assistance of counsel are not, designed




                            © 2012 Thomson Reuters. No Clain1 to Orig. US Gov. Works.
                                                                                                      Page 3
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S.203
(Cite as: 132 S.Ct. 1376)



simply to protect the trial, even though counsel's         II 0 Criminal Law
absence ip critical stages of a criminal proceeding            I 1OX XXI Counsel
may derogate from the accused's right to a fair trial.             11 OXXXI( C) Adequacy of Representation
U.S.C.A. Const.Amend. 6.                                               11 OXXXI(C)2 Particular Cases and Issues
                                                                           11 Ok 1958 Death Penalty
[10] Criminal Law 110 €;=1718                                                  II Ok 1959 k. In general. Most Cited
                                                           Cases
I I 0 Criminal Law
                                                                A right to effective assistance of counsel exists
     II OXXXI Counsel
                                                           during sentencing in both noncapital and capital
         11 OXXXI(B) Right of Defendant to Counsel
                                                           cases. U.S.C.A. Const.Amend. 6.
            , II OXXXT(B)2 Stage of Proceedings as
Affecting Right                                             [13] Criminal Law 110 €=1953
                   II Ok 1718 k. Critical stages. Most
Cited Cases                                                II 0 Criminal Law
      The constitutional guarantee of effective assist-        I 1OXXXI Counsel
ance of counsel applies to pretrial critical stages                II OXXXI(C) Adequacy of Representation
that are part of the whole course of a criminal pro-                   II OXXXI(C)2 Particular Cases and Issues
ceeding, a proceeding in which defendants cannot                           11 Ok 1952 Sentencing in General
be presumed to make critical decisions without                                 11 Ok 1953 k. In general. Most Cited
counsel's advice. U.S.C.A. Const.Amend. 6.                 Cases
                                                                Even though sentencing does not concern the
[11] Criminal Law 110 €;=1967                              defendant's guilt or innocence, ineffective assist-
                                                           ance of counsel during a sentencing hearing can
II 0 Criminal Law
                                                           result in prejudice, under the prejudice prong of the
    II OXXXI Counsel
                                                           Strickland test for ineffective assistance of counsel,
        11 OXXXI(C) Adequacy of Representation
                                                           because any amount of additional jail time has
            II OXXXI(C)2 Particular Cases and Issues
                                                           Sixth      Amendment          significance.    U .S.C.A.
                II Ok 1966 Appeal
                                                           Const.Amend. 6.
                    II Ok 1967 k. In general. Most Cited
Cases                                                       [14] Criminal Law 110 €=1920
     Defendants have a right to effective assistance
of counsel on appeal, even though that cannot in            I I 0 Criminal Law
any way be characterized as part of the trial.                   11 OXXXI Counsel
U.S.C.A. Const.Amend. 6.                                             II OXXXI(C) Adequacy of Representation
                                                                         11 OXXXI(C)2 Particular Cases and Issues
[12] Criminal Law 110 €=1953                                                 11 Ok 1920 k. Plea. Most Cited Cases
                                                                  Even if the trial itself is free from constitution-
II 0 Criminal Law
                                                            al flaw, the defendant who, based on the deficient
    11 OXXXI Counsel
                                                            perfonnance of counsel, goes to trial instead of tak-
        II OXXXI(C) Adequacy of Representation
                                                            ing a more favorable plea may be prejudiced, as
            II OXXXI(C)2 Particular Cases and Issues
                                                            element of ineffective assistance of counsel, from
                II Ok 19 52 Sentencing in General
                                                            either a conviction on more serious counts or the
                    II Ok 1953 k. In general. Most Cited
                                                            imposition of a more severe sentence. U.S.C.A.
Cases
                                                            Const.Amend. 6.
Criminal Law 110 €=1959
                                                            [15] Criminal Law 110 €=1924



                                                                                      '·
                                                                                      ,' i:   ~~.;   -.-: -.: ,· •.




                            © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.                              ·'<·
                                                                                                        Page4
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



 I I 0 Criminal Law                                             92VII Constitutional Rights in General
      I I OX XXI Counsel                                          92VII(A) In General
           II OXXXI(C) Adequacy of Representation                     92kl 050 k. In general. Most Cited Cases
               II OXXXI(C)2 Particular Cases and Issues          When a State opts to act in a field where its ac-
                    II Ok 1921 Introduction of and Objec-   tion has significant discretionary elements, it must
tions to Evidence at Trial                                  nonetheless act in accord with the dictat~s of the
                         I10k1924 k. Presentation of wit-   Constitution.
nesses. Most Cited Cases
       A defendant cannot show prejudice, under the         [19] Criminal Law 110     ~1880

prejudice prong of the Strickland test for ineffective
                                                            110 Criminal Law
assistance of counsel, based on counsel's refusal to
                                                                II OXXXI Counsel
present perjured testimony, even if such testimony
                                                                    II OXXXI(C) Adequacy of Representation
might have affected the outcome of the case.
                                                                        110XXXI(C)1 In General
U.S.C.A. Const.Amend. 6.
                                                                            11 Ok 1879 Standard of Effy,ctive As-
[16] Criminal Law 110      ~1920                            sistance in General
                                                                             11 Ok 1880 k. In general. Most Cited
 I I 0 Criminal Law                                         Cases
      II OXXXI Counsel                                           The benchmark for judging any claim of inef-
          II OXXXI(C) Adequacy of Representation            fective assistance of counsel must be whether coun-
              11 OXXXI(C)2 Particular Cases and Issues      sel's conduct so undermined the proper functioning
                  11 Ok 1920 k. Plea. Most Cited Cases      of the adversarial process that the trial cannot be re-
       If a plea bargain has been offered, a defendant      lied on as having produced a just result. U.S.C.A.
 has the right to effective assistance of counsel in        Const.Amend. 6.
 considering whether to accept it, and if that right is
 denied, prejudice can be shown, under the prejudice        [20] Criminal Law 110     ~1870

 prong of the Strickland test for ineffective assist-
                                                            110 Criminal Law
 ance of counsel, if loss of the plea opportunity led
                                                                II OXXXI Counsel
 to a trial resulting in a conviction on more serious
                                                                    II OXXXI(C) Adequacy of Representation
·charges or the imposition of a more severe sen-
                                                                        II OXXXI(C) 1 In General
 tence. U.S.C.A. Const.Amend. 6.
                                                                             11 Ok 1870 k. In general. Most Cited
[17] Criminal Law 110      ~273(2)                          Cases
                                                                 The constitutional rights of criminal defendants
II 0 Criminal Law                                           are granted to the innocent and the guilty alike, and
    I JOXV Pleas                                            consequently, the guarantee of effective assistance
        11 Ok272 Plea of Guilty                             of counsel does not belong solely to the innocent or
            11 Ok273 In General                             attach only to matters affecting the determination of
                  Il Ok273(2) k. Right to plead guilty;     actual guilt. U.S.C.A. Const.Amend. 6.
mental competence. Most Cited Cases
     Defendants have no right to be offered a plea,         [21] Criminal Law 110     ~1862

nor a federal right that the judge accept it.
                                                            I I 0 Criminal Law
[18] Constitutional Law 92 ~1050                                 II OXXXI Counsel
                                                                     11 OXXXI(B) Right of Defendant to Counsel
92 Constitutional Law                                                    I 1OXXXI(B) 11 Deprivation or Allowance




                            © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                       Page 5
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



of Counsel                                                               II Ok 1920 k. Plea. Most Cited Cases
               I I Ok 1860 Effect of Representation or          For purposes of detennining the remedy for in-
Deprivation of Rights                                      effective assistance of counsel relating to defend-
                   II Ok 1862 k. Remedies. Most Cited      ant's rejection of a plea offer, if an offer was for a
Cases                                                      guilty plea to a count or counts less serious than the
     Sixth Amendment remedies should be tailored           ones for which a defendant was convicted after tri-
to the injury suffered from the constitutional viola-      al, or if a mandatory sentence confines a judge's
tion and should not unnecessarily infringe on com-         sentencing discretion after trial, the proper exercise
peting interests, and thus, a remedy must neutralize       of discretion to remedy the constitutional injury
the taint of a constitutional violation, while at the      may be to require the prosecution to reoffer the plea
same time not grant a windfall t~ the defendant or         proposal, and once this has occurred, the judge can
needlessly squander the considerable resources the         then exercise discretion in deciding whether to va-
State properly invested in the criminal prosecution.       cate the conviction from trial and accept the plea or
U.S.C.A. Const.Amend. 6.                                   leave the convictiOn undisturbed. U.S.C.A.
                                                           Const.Amend. 6.
[22] Criminal Law 110 €:=1920
                                                           [24] Criminal Law 110 ~1920
110 Criminal Law
    11 OXXXI Counsel                                       110 Criminal Law
        11 OXXXI( C) Adequacy of Representation                11 OXXXI Counsel
            11 OXXXI(C)2 Particular Cases and Issues               11 OXXXI(C) Adequacy of Representation
                11 Ok 1920 k. Plea. Most Cited Cases                   11 OXXXI(C)2 Particular Cases and Issues
     When determining the remedy for ineffective                           11 Ok 1920 k. Plea. Most Cited Cases
assistance of counsel relating to defendant's rejec-            A court, in determining the remedy for inef-
tion of a plea offer, if the sole advantage a defend-      fective assistance of counsel relating to defendant's
ant would have received under the plea is a lesser         rejection of a plea offer, may take account of a de-
sentence, which is typically the case when the             fendant's earlier expressed willingness, or unwill-
charges that would have been admitted as part of           ingness, to accept responsibility for his or her ac-
the plea bargain are the same as the charges the de-       tions. U.S.C.A. Const.Amend. 6.
fendant was convicted of after trial, the court may
conduct an evidentiary hearing to determine wheth-         [25] Criminal Law IIO ~1920
er the defendant has shown a reasonable probability
                                                           110 Criminal Law
that but for counsel's errors he would have accepted
                                                               1 1OX XXI Counsel
the plea, and if the showing is made, the court may
                                                                   11 OXXXI( C) Adequacy of Representation
exercise discretion in determining whether the de-
                                                                       II OXXXI(C)2 Particular Cases and Issues
fendant should receive the term of imprisonment
                                                                           11 Ok 1920 k. Plea. Most Cited Cases
the government offered in the plea, the sentence he
                                                                In determining the remedy for ineffective as-
received at trial, or something in between. U.S.C.A.
                                                           sistance of counsel relating to defendant's rejection
Const.Amend. 6.
                                                           of a plea offer, the precise positions the defendant
[23] Criminal Law 110 €:=1920                              and the prosecution prior to the rejection of the plea
                                                           offer can be consulted in finding a remedy that does
I 10 Criminal Law                                          not require the prosecution to incur the expense of
    II OX XXI Counsel                                      conducting a new trial. U.S.C.A. Const.Amend. 6.
        11 OXXXI(C) Adequacy of Representation
            11 OXXXI(C)2 Particular Cases and Issues       [26] Habeas Corpus 197 ~452




                           © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                       Page 6
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



197 Habeas Corpus                                         since the victim had been shot below the waist; but
    197!I Grounds for Relief; Illegality of Restraint     for counsel's deficient performance, there was a
        197Il(A) Ground and Nature of Restraint           reasonable probability that defendant and the trial
            197k450 Federal Review of State or Ter-       court would have accepted the guilty plea, and as a
ritorial Cases                                            result of not accepting the plea offer and being con-
              ' 197k452 k. Federal or constitutional      victed at trial, defendant received a minimum sen-
questions. Most Cited Cases                               tence three and one-half times greater than he
     A decision is "contrary to clearly established       would have received under the plea. U.S.C.A.
law," for purposes of the Antiterrorism and Effect-       Const.Amend. 6.                            "·
ive Death Penalty Act (AEDPA), under which a
federal court may not grant a petition for a writ of      [29] Criminal Law 110 €:;=1920
habeas corpus unless the state court's adjudication
                                                           II 0 Criminal Law
on the merits was contrary to, or involved an un-
                                                               11 OXXXI Counsel
reasonable application of, clearly established feder-
                                                                   11 OXXXI(C) Adequacy of Representation
al law as determined by the Supreme Court of the
                                                                       110XXXI(C)2 Particular Cases and Issues
United States, if the state court applies a rule that
                                                                          II Ok 1920 k. Plea. Most Cited Cases
contradicts the governing law set forth in Supreme
                                                                Proper remedy for counsel's ineffective assist-
Court cases. 28 U.S.C.A. § 2254(d)(l).
                                                          ance in advising defendant to reject a plea offer
[27] Criminal Law 110 €:=1920                             from the State and go to trial because counsel al-
                                                          legedly believed that defendant's intent to murder,
II 0 Criminal Law                                         for purposes of charge under Michigan law of as-
    II OXXXI Counsel                                      sault with intent to murder, could not be established
        11 OXXXI(C) Adequacy of Representation            since the victim had been shot below the waist, was
            II OXXXI(C)2 Particular Cases and Issues      to order the State to reoffer the plea agreement, and
                11 Ok 1920 k. Plea. Most Cited Cases      then, presuming defendant accepted the .offer, the
     An inquiry into whether the rejection of a plea      state trial court could exercise its discretion in de-
is knowing and voluntary is not the correct means         termining whether to vacate the convictions and re-
by which to address a claim of ineffective assist-        sentence defendant pursuant to the plea agreement,
ance of counsel, relating to a plea. U.S.C.A.             to vacate only some of the convictions and resen-
Const.Amend. 6.                                           tence defendant accordingly, or to leave the convic-
                                                          tions and sentence from trial undisturbed. U.S.C.A.
[28] Criminal Law 110 ~1920                               Const.Amend. 6; MCR 6.302(C)(3).

110 Criminal Law                                                                           FN*
                                                                          *1380 Syllabus
    II OXXXI Counsel
        II OXXXI(C) Adequacy of Representation                     FN* The syllabus constitutes no part of the
            II OXXXI(C)2 Particular Cases and Issues               opinion of the Court but has been prepared
                ll0kl920 k. Plea. Most Cited Cases                 by the Reporter of Decisions for the con-
     Defendant was prejudiced, as element of inef-                 venience of the reader. See United States v.
fective assistance of counsel, by counsel's deficient              Detroit Timber & Lumber Co., 200 U.S.
perfonnance in advising defendant to reject a plea                 321, 337, 26 S.Ct. 282, 50 L.Ed. 499.
offer from the State and go to trial because counsel
allegedly believed that defendant's intent to murder,         Respondent was charged under Michigan law
for purposes of charge under Michigan law of as-          with assault with intent to murder and three other
sault with intent to murder, could not be established     offenses. The prosecution offered to dismiss two of ·




                          © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                   Page 7
132 S.Ct. B76, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 DailyJoumal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



the charges and to recommend a 51-to-85-month             formance was deficient, the only question is how to
sentence on the other two, in exchange for a guilty       apply Strickland 's prejudice test where ineffective
plea. In a communication with the court, respondent       assistance results in a rejection of the plea offer and
admitted ,his guilt and expressed a willingness to        the defendant is convicted at the ensuing trial. Pp.
accept the offer. But he rejected the offer, allegedly    1383- 1384.
after his attorney convinced him that the prosecu-
tion would be unable to establish intent to murder             (b) In that context, the Strickland prejudice test
because the victim had been shot below the waist.         requires a defendant to show a reasonable possibil-
At trial, respondent was convicted on all counts and      ity that the outcome of the plea process would have
received a mandatory minimum 185-to-360-month             been different with competent advice. The Sixth
sentence. In a subsequent hearing, the state trial        Circuit and other federal appellate courts have
court rejected respondent's claim that his attorney's     agreed with the Strickland prejudice test for reje'c-
advice to•reject the plea constituted ineffective as-     ted pleas adopted here by this Court. Petitioner and
sistance. The Michigan Court of Appeals affirmed,         the Solicitor General propose a narrow view-that
rejecting the ineffective-assistance claim on the         Strickland prejudice cannot arise from plea bargain-
ground that respondent knowingly and intelligently        ing if the defendant is later convicted at a fair tri-
turned down the plea offer and chose to go to trial.      al-but their reasoning is unpersuasive. First, they
Respondent renewed his claim .in federal habeas.          claim that the Sixth Amendment's sole purpose is to
Finding that the state ·appellate court had unreason-     protect the right to a fair trial, but the Amendment
ably applied the constitutional effective-assistance      actually requires effective assistance at critical
standards laid out in Strickland v. Washington, 466       stages of a *1381 criminal proceeding, including
U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674, and Hill       pretrial stages. This is consistent with the right to
 v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d      effective assistance on appeal, see, e.g., Halbert v.
203, the District Court granted a conditional writ        Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162
and ordered specific performance of the original          L.Ed.2d 552, and the right to counsel during senten-
plea offer. The Sixth Circuit affirmed. Applying          cing, see, e.g., Glover v. United States, 531 U.S.
Strickland, it found that counsel had provided defi-      198, 203-204, 121 S.Ct. 696, I 48 L.Ed.2d 604.
 cient perfonnance by advising respondent of an in-       This Court has not followed a rigid rule that an oth-
 corre~t legal rule, and that respondent suffered pre-
                                                          erwise fair trial remedies errors not occurring at tri-
judice because he lost the opportunity to take the        al, but has instead inquired whether the trial cured
 more favorable sentence offered in the plea.             the particular error at issue. See, e.g., Vasquez v.
                                                          Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88
    Held:                                                 L.Ed.2d 598. Second, this Court has previously re-
                                                          jected petitioner's argument that Lockhart v.
     I. Where counsel's ineffective advice led to an      Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d
offer's rejection, and where the prejudice alleged is      180, modified Strickland and does so again here.
having to stand trial, a defendant must show that         Fretwell and Nix v. Whiteside, 475 U.S. 157, 106
but for the ineffective advice, there is a reasonable     S.Ct. 988, 89 L.Ed.2d 123, demonstrate that "it
probability that the plea offer would have been           would be unjust to characterize the likelihood of a
presented to the court, that the court would have ac-     different outcome as legitimate 'prejudice,' " Willi-
cepted its terms, and that the conviction or sen-         ams v. Taylor, 529 U.S. 362, 391-392, 120 S.Ct.
tence, or both, under the offer's terms would have         1495, 146 L.Ed.2d 389, where defendants would re-
been less severe than under the actual judgment and       ceive a windfall as a result of the application of an
sentence imposed. Pp. 1383- 1388.                         incorrect legal principle or a defense strategy out-
                                                          side the law. Here, however, respondent seeks relief
     (a) Because the parties agree that counsel's per-


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132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



from counsel's failure to meet a valid legal stand-         require the prosecution to reoffer the plea. The
ard. Third, petitioner seeks to preserve the convic-        judge can then exercise discretion in deciding
tion by arguing that the Sixth Amendment's purpose          whether to vacate the conviction from trial and ac-
is to ensure a conviction's reliability, but this argu-     cept the plea, or leave the conviction undisturbed.
ment fails to comprehend the full scope of the Sixth        In either situation, a court must weigh various
Amendment and is refuted by precedent. Here, the            factors. Here, it suffices to give two relevant con-
question is the fairness or reliability not of the trial    siderations. First, a court may take account of a de-
but of the processes that preceded it, which caused         fendant's earlier * 1382 expressed willingness, or
respondent to lose benefits he would have received          unwillingness, to accept responsibility for his or her
but for counsel's ineffective assistance. Further-          actions. Second, it is not necessary here to decide
more, a reliable trial may not foreclose relief when        as a constitutional r:ule that a judge is r~.quired to
counsel has failed to assert rights that may have           disregard any information concerning the crime dis-
altered the outcome. See Kimmelman v. Morrison,             covered after the plea offer was made. Petitioner ar-
477 U.S. 365, 379, 106 S.Ct. 2574, 91 L.Ed.2d 305.          gues that implementing a remedy will open the
Petitioner's position that a fair trial wipes clean in-     floodgates to litigation by defendants seeking to un-
effective assistance during plea bargaining also ig-        settle their convictions, but in the 30 years that
nores the reality that criminal justice today is for        courts have recognized such claims, there has been
the most part a system of pleas, not a systeni of tri-      no indication that the system is overwhelmed or
als. See Missouri v. Frye, -U.S.--, 132 S.Ct.               that defendants are receiving windfalls as a result of
1399,- L.Ed.2d - . Pp. 1384- 1388.                          strategically timed Strickland claims. In~·addition,
                                                            the prosecution and trial courts may adopt measures
      2. Where a defendant shows ineffective assist-        to help ensure against meritless claims. See Frye,
ance has caused the rejection of a plea leading to a        ante, at--, 132 S.Ct. 1399. Pp. 1388- 1390.
more severe sentence at trial, the remedy must
"neutralize the taint" of a constitutional violation,             3. This case arises under the Antiterrorism and
United States 1'. Morrison, 449 U.S. 361, 365, 101          Effective Death Penalty Act of 1996 (AEDP A), but
S.Ct. 665, 66 L.Ed.2d 564, but must not grant a             because the Michigan Court of Appeals' analysis of
windfall to the defendant or needlessly squander the        respondent's ineffective-assistance-of-counsel claim
resources the State properly invested in the criminal       was contrary to clearly established federal"law, AE-
prosecution, see United States v. Mechanik, 475             DPA presents no bar to relief. Respondent has satis-
U.S. 66, 72, 106 S.Ct. 938, 89 L.Ed.2d 50. If the           fied Strickland 's two-part test. The parties concede
sole advantage is that the defendant would have re-         the fact of deficient performance. And respondent
ceived a lesser sentence under the plea, the court          has shown that but for that performance there is a
should have an evidentiary hearing to determine             reasonable probability he and the trial court would
whether the defendant would have accepted the               have accepted the guilty plea. In addition, as a res-
plea. If so, the court may exercise discretion in de-       ult of not accepting the plea and being convicted at
termining whether the defendant should receive the          trial, he received a minimum sentence ~- & half;
term offered in the plea, the sentence received at          times greater than he would have received under
trial, or something in between. However, resenten-          the plea. As a remedy, the District Court ordered
cing based on the conviction at trial may not suf-          specific perfonnance of the plea agreement, but the
fice, e.g., where the offered guilty plea was for less      correct remedy is to order the State to reoffer the
serious counts than the ones for which a defendant          plea. If respondent accepts the offer, the state trial
was convicted after trial, or where a mandatory sen-        court can exercise its discretion in determining
tence confines a judge's sentencing discretion. In          whether to vacate respondent's convictions and re-
these circumstances, the proper remedy may be to            sentence pursuant to the plea agreement, to vacate




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132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



only som.e of the convictions and resentence ac-          further proceedings led to a less favorable outcome.
cordingly, or to leave the conviction and sentence        In Frye, defense counsel did not inform the defend-
resulting from the trial undisturbed. Pp. 1390 -          ant of the plea offer; and after the offer lapsed the
1391.                                                     defendant sfill pleaded guilty, but on more severe
                                                          terms. Here, the favorable plea offer was reported
    376 Fcd.Appx. 563, vacated and remanded.              to the client but, on advice of counsel, was rejected.
                                                          In F1ye there was a later guilty plea. Here, after the
     KENNEDY, J., ·delivered the opinion of the
                                                          plea offer had been rejected, there was a full and
Court, in which GINSBURG, BREYER, SOTO-
                                                          fair trial before a jury. After a guilty verdict, the de-
MAYOR. and KAGAN, JJ., joined. SCALIA, J.,
                                                          fendant received a sentence harsher than that
filed a dissenting opinion, in which THOMAS, J.,
                                                          offered in the rejected plea bargain. The instant
joined, and in which ROBERTS, C.J., joined as to
                                                          case comes to the Court with the concession that
all but Part IV. AUTO, J., filed a dissenting opin-
                                                          counsel's advice with respect to the plea offer fell
ion.
                                                          below the standard of adequate assistance of coun-
John J. Bursch, Solicitor General, for Petitioner.
                                                          sel guaranteed by the Sixth Amendment, applicable
William M. Jay, for the United States, as amicus          to the States through the Fourteenth Amendment.
curiae, by special leave of the Court, supporting the
Petitioner.
                                                               On the evening of March 25, 2003, respondent
Valerie R. Newman, Detroit, MI, appointed by this         pointed a gun toward Kali Mundy's head and fired.
Court, for the Respondent.                                From the record, it is unclear why respondent did
                                                          this, and at trial it was suggested that he might have
Bill Schuette, Attorney General, John J. Bursch,          acted either in self-defense or in defense of another
Michigan Solicitor General, Counsel of Record,            person. In any event the shot missed and Mundy
Lansing, MI, B. Eric Restuccia, Michigan Deputy           fled. Respondent followed in pursuit, firing re-
Solicitor General, Joel D. McGormley, Appellate           peatedly. Mundy was shot in her buttock, hip, and
Division Chief, for Petitioner.                           abdomen but survived the assault.

Jeffrey T. Green, Karen S. Smith, Brian A. Fox,                Respondent was charged under Michigan law
Sidley Austin LLP, Washington, DC, Sarah                  with assault with intent to murder, possession of a
O'Rourke Schrup, Chicago, IL, Valerie R. Newman           firearm by a felon, possession of a firearm in the
, Jacqueline J. McCann, State Appellate Defender          commission cif a felony, misdemeanor possession
Office, Detroit, MI, for Respondent Anthony               of marijuana, and for being a habitual offender. On
Cooper.                                                   two occasions, the prosecution offered to dismiss
                                                          two of the charges and to recommend a sentence of
For U.S. Supreme Court briefs, see:20 II WL               51 to 85 months for the other two, in exchange for a
3663395      (Reply.Brief)2011  WL      2837936           guilty plea. In a communication with the court re-
(Resp.Brief)2011 WL 1523284 (Pet.Brief)                   spondent admitted guilt and expressed a willingness
                                                          to accept the offer. Respondent, however, later re-
Justice KENNEDY delivered the opinion of the
                                                          jected the offer on both occasions, allegedly after
Court.
                                                          his attorney convinced him that the prosecution
     In this case, as in Missouri v. Frye, -  U.S.
                                                          would be unable to estab~ish his intent to murder
 ---, 132 S.Ct. 1399, ----L.Ed.2d ··.·---· (2012),
                                                          Mundy because she had been shot below the waist.
also decided today, a criminal *1383 defendant
                                                          On the first day of trial the prosecution offered a
seeks a -remedy when inadequate assistance of
                                                          significantly less favorable plea deal, which re-
counsel caused nonacceptance of a plea offer and

                                                                                                 i). ~:- ·.:-,-.-~·     :· ·. --~~,--.
                                                                                                                      ;::L·
                                                                                                              '        -,
                                                                                       .; : -
                                                                                      ,,.,_.-·
                                                                                                                                     '~'   I



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                                                                                                     Page 10
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



spondent again rejected. After trial, respondent was      Applying Strickland, the Court of Appeals found
convicted on all counts and received a mandatory          that respondent's attorney had provided deficient
minimum sentence of 185 to 360 months' imprison-          performance by informing respondent of "an incor-
ment.                                                     rect legal rule," 376 Fed.Appx., at 570-571, and
                                                          that respondent suffered prejudice because he "lost
     In a so-called Ginther hearing before the state      out on an opportunity to plead guilty a~..d receive
trial court, see People v. Ginther, 390 Mich. 436,        the lower sentence that was offered to him." !d., at
212 N.W.2d 922 (1973), respondent argued his at-          573. This Court granted certiorari. 562 U.S. - - ,
torney's advice to reject the plea constituted inef-      131 S.Ct. 856, 178 L.Ed.2d 622 (20 11 ).
fective assistance. The trial judge rejected the
claim, and the Michig~n Court of Appeals affirmed.                                  II
People v. Cooper, No. 250583, 2005 WL 599740                                        A
(Mar. 15, 2005) (per curiam), App. to Pet. for Cert.           [1][2][3][4] Defendants have a Sixth Amend-
44a. The Michigan Court of Appeals rejected the           ment right to counsel, a right that extends to the
claim of ineffective assistance of counsel on the         plea-bargaining process. Frye, ante, at 1386- 1387,
ground that respondent knowingly and intelligently        132 S.Ct. 1399; see also Padilla v. Kentucky, 559
rejected two plea offers and chose to go to trial.        U.S. - - , - - , 130 S.Ct. 1473, 1486, 176
The Michigan Supreme Court denied respondent's            L.Ed.2d 284 (20 10); Hill, supra, at 57, 106 S.Ct.
application for leave to file an appeal. People v.        366. During plea negotiations defendants are
Cooper, 474 Mich. 905, 705 N.W.2d 118 (2005)              "entitled to the effective assistance of competent
(table).                                                  counsel." McMann v. Richardson, 397 U.S. 759,
                                                          771,90 S.Ct. 1441,25 L.Ed.2d 763 (1970). In.Hi/1,
     Respondent then filed a petition for federal         the Court held "the two-part Strickland v. Washing-
habeas relief under 28 U.S.C. § 2254, renewing his        ton test applies to challenges to guilty pleas based
ineffective-assistance-of-counsel claim. After find-      on ineffective assistance of counsel.'~ 474 U.S., at
ing, as required by the Antiterrorism and Effective       58, 106 S.Ct. 366. The perfonnance prong of
Death Penalty Act of 1996 (AEDPA), that the               Strickland requires a defendant to show " 'that
Michigan Court of Appeals had unreasonably ap-            counsel's representation fell below an objective
plied the constitutional standards for effective as-      standard of reasonableness.' "474 U.S., at 57, 106
sistance of counsel laid out in Strickland v. Wash-       S.Ct. 366 (quoting Strickland, 466 U.S., at 688, 104
ington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d          S.Ct. 2052). In this case all parties agree the per-
674 (1984), and *1384Hil/ v. Lockhart, 474 U.S.           formance of respondent's counsel was_,._ deficient
52, I 06 S.Ct. 366, 88 L.Ed.2d 203 (1985), the Dis-       when he advised respondent to reject the plea offer
trict Court granted a conditional writ. Cooper 1'.        on the grounds he could not be convicted at trial. In
Lafler, No. 06-11068, 2009 WL 817712, *10                 light of this concession, it is unnecessary for this
(E.D.Mich., Mar. 26, 2009), App. to Pet. for Cert.        Court to explore the issue.
41a-42a. To remedy the violation, the District
Court     ordered     "specific    performance       of       The question for this Court is how to apply
[respondent's] original plea agreement, for a min-        Strickland's prejudice test where ineffective assist-
imum sentence in the range of fifty-one to eighty-        ance results in a rejection of the plea offer and the
five months." !d., at *9, App. to Pet. for Cert. 41a.     defendant is convicted at the ensuing trial."

     The United States Court of Appeals for the                                      B
Sixth Circuit affirmed, 376 Fed.Appx. 563 (20 I 0),             [5][6] To establish Strickland prejudice a de-
finding "[e]ven full deference under AEDPA can-            fendant must "show that there is a reasonable prob-
not salvage the state court's decision," id., at 569.      ability that, but for counsel's unprofessional errors,




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                                                                                                     Page II
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



the result of the proceeding would have been differ-      376, 380-381. (C.A.2 1998) (per curiam); United
ent." !d., at 694, 104 S.Ct. 2052. In the context of      Stales v. Day. 969 F.2d 39, 43-45 (C.A.3 1992);
pleas a defendant must show the outcome of the            Beckham v. Wainwright, 639 F.2d 262, 267 (C.A.5
plea process would have been different with com-          1981 ); Julian v. Bartley, 495 F .3d 487, 498-500
petent advice. See Frye, ante, at 1388 - 1389, 132        (C.A.7 2007); Wanaree v. Ault, 259 F.3d 700,
S.Ct. 1399 (noting that Strickland's inquiry, as ap-      703-704 (C.A.8 200 I); Nunes v. Mueller. 350 F.3d
plied to advice with respect to plea bargains, turns      1045, 1052-1053 (C.A.9 2003); Williams v. Jones,
on "whether 'the result of the proceeding would           571 F.3d 1086, 1094-1095 (C.A.IO 2009) (per
have been different' "(quoting Strickland, supra, at      curiam); United States v. Gaviria. 116 F.3d 1498,
694, 104 S.Ct. 2052)); see also Hill, 474 U:S., at        1512-1514 (C.A.D.C.I997) (per curiam).
59, I06 S.Ct. 366 ("The ... 'prejudice,' requirement
... focuses on whether counsel's constitutionally in-          Petitioner and the Solicitor General propose a
effective performance affected the outcome of the         different, far more narrow, view of the Sixth
plea process"). In Hill, when evaluating the peti-        Amendment. They contend there can be no finding
tioner's claim that ineffective assistance led to the     of Strickland prejudice arising from plea bargaining
improvident acceptance of a guilty plea, the Court        if the defendant is later convicted at a fair trial. The
required the petitioner to show "that there is a reas-    three reasons petitioner and the Solicitor General
onable probability that, but for counsel's errors,        offer for their approach are unpersuasive.
*1385 [the defendant] would not have pleaded
                                                                [8][9][10][11][12][13] First, petitioner and the
guilty and would have insisted or. going to trial."
                                                          Solicitor General claim that the sole purpose of the
!hid.
                                                          Sixth Amendment is to protect the right to a fair tri-
     [7] In contrast to Hill, here the ineffective ad-    al. Errors before trial, they argue, are not cogniz-
vice led not to an offer's acceptance but to its rejec-   able under the Sixth Amendment unless they affect
tion. Having to stand trial, not choosing to waive it,    the fairness of the trial itself. See Brief for Petition-
is the prejudice alleged. In these circumstances a        er 12-21; Brief for United States as Amicus Curiae
defendant must show that but for the ineffective ad-      10-12. The Sixth Amendment, however, is not so
vice of counsel there is a reasonable probability that    narrow in its reach. Cf. F1ye, anre, at 1388, 132
the plea offer would have been presented to the           S.Ct. 1399 (holding that a defendant can show pre-
court (i.e., that the defendant would have accepted       judice under Strickland even absent a showing that
the plea and the prosecution would not have with-         the deficient perfonnance precluded him from go-
drawn it in light of intervening circumstances), that     ing to trial). The Sixth Amendment requires effect-
the court would have accepted its terms, and that         ive assistance of counsel at critical stages of a crim-
the conviction or sentence, or both, under the of-        inal proceeding. Its protections are not designed
fer's term~ would have been less severe than under        simply to protect the trial, even though "counsel's
the judgment and sentence that in fact were im-           absence [in these stages] may derogate from the ac-
posed. Here, .the Court of Appeals for the Sixth Cir-     cused's right to a fair trial." United States v. Wade.
cuit agreed with that test for Strickland prejudice in    388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149
the context of a rejected plea bargain. This is con-      ( 1967). The constitutional guarantee applies to pre-
sistent with the test adopted and applied by other        trial critical stages that are part of the whole course
appellate courts without demonstrated difficulties        of a criminal proceeding, a proceeding in which de-
or systemic disruptions. See 3 76 Fed./\ppx., at          fendants cannot be presumed to make critical de-
571-573; see also, e.g., United Stares v. Rodriguez       cisions without counsel's advice. This is consistent,
Rodriguez, 929 F.2d 747, 753, n. I (C.A.l 1991)           too, with the rule that defendants have a right to ef-
(per curiam); United States v. Gordon. 156 F.3d           fective assistance of counsel on appeal, even



                                                                                                                . a··
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                                                                                                                 z,
                                                                                                     Page 12
132 S.Ct. 1376, 182 L.Ed.2d398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



though that cannot in any way be characterized as               [14] In the instant case respondent went to trial
part of the trial. See, e.g., Hulbert v. Michigan, 545     rather than accept a plea deal, and it is conceded
U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005);          this was the result of ineffective assistance during
Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83           the plea negotiation process. Respondent received a
L.Ed.2d 821 ( 1985). The precedents also establish         more severe sentence at trial, one 3 1/2 times more
that there exists a right to counsel during sentencing     severe than he likely would have received by plead-
in both noncapital, see *1386Giover v. United              ing guilty. Far from curing the error, the trial
States, 531 U.S. 198, 203-204, 121 S.Ct. 696, 148          caused the injury from the error. Even if the trial it-
L.Ed.2d 604 (200 I); Mempa v. Rhay, 389 U.S. 128,          self is free from constitutional flaw, the ~efendant
88 S.Ct. 254, 19 L.Ed.2d 336 ( 1967), and capital          who goes to trial instead of taking a more favorable
cases, see Wiggins v. Smith, 539 U.S. 510,538, 123         plea may be prejudiced from either a .conviction on
S.Ct. 2527, 156 L.Ed.2d 4 71 (2003). Even though           more serious counts or the imposition of a more
sentencing does not concern the defendant's guilt or       severe sentence.
innocence, ineffective assistance of counsel during
a sentencing hearing can result in Strickland preju-           Second, petitioner claims this , Court refined
dice because "any amount of [additional] jail time        Strickland 's prejudice analysis in Fretwell to add
has Sixth Amendment significance." Glover, supra,         an additional requirement that the defendant show
at 203, 121 S.Ct. 696.                                    that ineffective assistance of counsel led to his be-
                                                          ing denied a substantive or procedural right. Brief
     The Court, moreover, has not followed a rigid        for Petitioner 12-13. The Court has rejected the ar-
rule that an otherwise fair trial remedies errors not     gument that Fretwell modified Strickland before
occurring at the trial itself. It has inquired instead    and does so again now. See Williams v. Taylor, 529
whether the trial cured the particular error at issue.    U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389
Thus, in Vasquez v. Hillery, 474 U.S. 254, 106            (2000) ("The Virginia Supreme Court erred in hold-
S.Ct. 617, 88 L.Ed.2d 598 ( 1986), the deliberate ex-     ing that our decision in Lockhart v. Fretwell, 506
clusion of all African-Americans from a grand jury        U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993),
was prejudicial because a defendant may have been         modified or in some way supplanted the rule set
tried on charges that would not have been brought         down in Strickland "); see also Glover, supra, at
at all by a properly constituted grand jury. !d., at      203, 121 S.Ct. 696 ("The Court explained last Term
263, I 06 S.Ct. 617; see Ballard v. United States,        [in Williams ] that our holding in Lockhart does not
329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181             supplant the Strickland analysis").
( 1946) (dismissing an indictment returned by a
grand jury from which women were excluded); see                  [ 15] Fretwell could not show Strickland preju-
also Stirone v. United States, 361 U.S. 212,               dice resulting from his attorney's failure to object to
218-219, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)                the use of a sentencing factor the Eighth Circuit had
(reversing a defendant's conviction because the jury       erroneously (and temporarily) found to be imper-
may have based its verdict on acts not charged in          missible. Fretwell, 506 U.S., at 373, 113 S.Ct. 838.
the indictment). By contrast, in United States v.          Because the objection upon which his ineffective-
Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d           assistance-of-counsel claim was premised was mer-
50 ( 1986), the complained-of error was a violation        itless, Fretwell could not demonstrate an error en-
of a grand jury rule meant to ensure probable cause        titling him to relief. The case presented the
existed to believe a defendant was guilty. A sub-          "unusual circumstance where the defendant at-
sequent trial, resulting in a verdict of guilt, cured      tempts to demonstrate prejudice *1387 based on
this error. See id., at 72-73, 106 S.Ct. 938.              considerations that, as a matter of law, ought not in-
                                                           form the inquiry." Ibid. (O'Connor, J., concurring).




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132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L.,Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



See also ibid. (recognizing "[t]he determinative           judice can be shown if loss of the plea opportunity
question-whether there is a reasonable probability         led to a trial resulting in a conviction on more seri-
that, but for counsel's unprofessional errors, the res-    ous charges or the imposition of a more severe sen-
ult of the proceeding would have been differ-              tence.
ent-remains unchanged" (internal quotation marks
and citadon omitted)). It is for this same reason a              [ 17]( 18] It is, of course, true that defendants
defendant cannot show prejudice based on counsel's          have "no right to be offered a plea ... nor a federal
refusal to present perjured testimony, even if such         right that the judge accept it." Frye, ante, at 1388 -
testimony might have affected the outcome of the            1389, 132 S.Ct. 1399. In the circumstances here,
case. See Nix v. Whiteside, 475 U.S. 157, 175, 106          that is beside the point. If no plea offer is made, or
S.Ct. 988,89 L.Ed.2d 123 (1986) (holding first that         a plea deal is accepted by the defendant but rejected
counsel's refusal to present perjured testimony             by the judge, the issue raised here simply does not
breached no professional duty and second that it            arise. Much the same reasoning guides cases that
cannot establish prejudice under Strickland).               find criminal defendants have a right to effective
                                                            assistance of counsel in direct appeals even though
     [ 16] Both Fretwell and Nix are instructive in         the Constitution does not require States to provide a
that they demonstrate "there are also situations in         system of appellate review at all. See Evitts, 469
wl1ich it would be unjust to characterize the likeli-       U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; see also
hood of a different outcome as legitimate                   Douglas v. Cal(fornia, 372 U.S. 353, 83 S.Ct. 814,
'prejudice,' " Williams. supra, at 391-392, 120             9 L.Ed.2d 811 (1963). As in those cases, "[w]hen a
S.Ct. 1495, because defendants would receive a              State opts to act in a field where its action has sig-
windfall as a result of the application of an incor-        nificant discretionary elements, it must nonetheless
rect legal principle or a defense strategy outside the      act in accord with the dictates of the Constitution."
law. Here, however, the injured client seeks relief         Evitts, supra, at 40 l, I 05 S.Ct. 830.
from counsel's failure to meet a valid legal stand-
ard, not from counsel's refusal to violate it. He                [ 19] Third, petitioner seeks to preserve the con-
maintains that, absent ineffective counsel, he would        viction obtained by the State by arguing that the
have accepted a plea offer for a sentence the pro-          purpose of the Sixth Amendment is to ensure "the
secution evidently deemed consistent with the               reliability of [a] conviction following trial." Brief
sound administration of criminal justice. The favor-        for Petitioner 13. This argument, too, fails to com-
able sent~_nce that eluded the defendant in the crim-       prehend the full scope of the Sixth Amendment's
inal proceeding appears to be the sentence he or            protections; and it is refuted*1388 by precedent.
others in his position would have received in the or-       Strickland recognized "(t]he benchmark for judging
dinary course, absent the failings of counsel. See          any claim of ineffectiveness must be whether coun-
Bibas, Regulating the Plea-Bargaining Market:               sel's conduct so undermined the proper functioning
From Caveat Emptor to Consumer Protection, 99               of the adversarial process that the trial cannot be re-
Cal. L.Rev. 1117, 113 8 (20 II) ("The expected              lied on as having produced a just result." 466 U.S.,
post-trial sentence is imposed in only a few percent        at 686, 104 S.Ct. 2052. The goal of a just result is
of cases. It is like the sticker price for cars: only an    not divorced from the reliability of a conviction,
ignorant,., ill-advised consumer would view full            see United States v. Cronic, 466 U.S. 648, 658, 104
price as the norm and anything less a bargain"); see        S.Ct. 2039, 80 L.Ed.2d 657 (1984); but here the
also Frye, ante, at 1386 -- 1387, 132 S.Ct. 1399. If a      question is not the fairness or reliability of the trial
plea bargain has been offered, a defendant has the          but the fairness and regularity of the processes that
right to effective assistance of counsel in consider-       preceded it, which caused the defendant to lose be-
ing whether to accept it. If that right is denied, pre-     nefits he would have received in the ordinary




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course but for counsel's ineffective assistance.           the guarantee of a fair trial as a backstop that inocu-
                                                           lates any errors in the pretrial process"). •.
     [20] There are instances, furthermore, where a
reliable trial does not foreclose relief when counsel                                c
has failed to assert rights that may have altered the           Even if a defendant shows ineffective assist-
outcome. In Kimmelman v. Morrison, 477 U.S. 365,           ance of counsel has caused the rejection of a plea
I 06 S.Ct. 2574, 91 L.Ed.2d 305 ( 1986), the Court         leading to a trial and a more severe sentence, there
held that an attorney's failure to timely move to          is the question of what constitutes an appropriate
suppress evidence during trial could be grounds for        remedy. That question must now be addressed.
federal habeas relief. The Court rejected the sug-
gestion that the "failure to make a timely request              [21] Sixth Amendment remedies sJ:wuld be
for the exclusion of illegally seized evidence" could      "tailored to the injury suffered from the constitu-
not be the basis for a Sixth Amendment violation           tional violation and should not unnecessarily in-
because the evidence "is .'typically reliable and of-      fringe on competing interests." United States v.
ten the most probative information bearing on the          Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66
guilt or innocence of the defendant.' " I d., at 379,      L.Ed.2d 564 (1981). Thus, a remedy must
106 S.Ct. 2574 (quoting Stone v. Powell, 428 U.S.          "neutralize the taint" of a constitutional violation,
465, 490, 96 S.Ct. 3037,49 L.Ed.2d 1067 (1976)).           id., at 365, 101 S.Ct. 665, while at the same time
"The constitutional rights of criminal defendants,"        not grant a windfall to the defendant or needlessly
the Court observed,-· "are granted to the innocent         squander the considerable* 1389 resources~the State
and the guilty alike. Consequently, we decline to          properly invested in the criminal prosecution. See
hold either that the guarantee of effective assistance     Mechanik, 475 U.S., at 72, 106 S.Ct. 938 ("There-
of counsel belongs solely to the innocent or that it       versal of a conviction entails substantial social
attaches only to matters affecting the determination       costs: it forces jurors, witnesses, courts, the prosec-
of actual guilt." 477 U.S., at 380, 106 S.Ct. 2574.        ution, and the defendants to expend further time,
The same logic applies here. The fact that respond-        energy, and other resources to repeat a trial that has
ent is guilty does not mean he was not entitled by         already once taken place; victims may be asked to
the Sixth Amendment to effective assistance or that        relive their disturbing experiences").
he suffered no prejudice from his attorney's defi-
                                                                [22] The specific injury suffered by defendants
cient performance during plea bargaining.
                                                           who decline a plea offer as a result of ineffective
     In the end, petitioner's three arguments amount       assistance of counsel and then receive a greater sen-
to one general contention: A fair trial wipes clean        tence as a result of trial can come in at least one of
any deficient" performance by defense counsel dur-         two forms. In some cases, the sole advantage a de-
ing plea bargaining. That position ignores the real-       fendant would have received under the plea is a
ity that criminal justice today is for the most part a     lesser sentence. This is typically the case when the
system of pleas, not a system of trials. Ninety-seven      charges that would have been admitted as part of
percent of federal convictions and ninety-four per-        the plea bargain are the same as the charges the de-
cent of state convictions are the result of guilty         fendant was convicted of after trial. In this situation
pleas. See Frye, ante, at 1386, 132 S.Ct. 1399. As         the court may conduct an evidentiary hearing to de-
explained in Frye, the right to adequate assistance        termine whether the defendant has shown a reason- .
of counsel cannot be defined or enforced without           able probability that but for counsel's errors he·
taking account of the central role plea bargaining         would have accepted the plea. If the showing is
plays in securing convictions and determining sen-         made, the court may exercise discretion in determ-
tences. Ibid. ("[I]t is insufficient simply to point to    ining whether the defendant should receive the term
                                                           of imprisonment the government offered in the




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plea, the sentence he received at trial, or something          Petitioner argues that implementing a remedy
in between.                                               here will open the floodgates to litigation by de-
                                                          fendants seeking to unsettle their convictions. See
     [23] In some situations it may be that resenten-     Brief for Petitioner 20. Petitioner's concern is mis-
cing alone will not be full redress for the constitu-     placed. Courts have recognized claims of this sort
tional injury. If, for example, an offer was for a        for over 30 years, see supra, at 1384- 1385, and
guilty plea to a count or counts less serious than the    yet there is no indication that *1390 the system is
ones for which a defendant was convicted after tri-       overwhelmed by these types of suits or that defend-
al, or if a mandatory sentence confines a judge's         ants are receiving windfalls as a result of strategic-
sentencing discretion after trial, a resentencing         ally timed Strickland claims. See also Padilla, 559
based on"·the conviction at trial may not suffice.        U.S., at--, 130 S.Ct. at 1484-1485 ("We con-
See, e.g., ·Williams, 571 F.3d, at I 088; Riggs v.        fronted a similar 'floodgates' concern in Hill," but a
Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In             "flood did not follow in that decision's wake"). In
these circumstances, the proper exercise of discre-       addition, the "prosecution and the trial courts may
tion to remedy the constitutional injury may be to        adopt some measures to help ensure against late,
require the prosecution to reoffer the plea proposal.     frivolous, or fabricated claims after a later, less ad-
Once this has occurred, the judge can then exercise       vantageous plea offer has been accepted or after a
discretion in deciding whether to vacate the convic-      trial leading to conviction." FlJ'e, ante, at 1408 -
tion from trial and accept the plea or leave the con-     1409, 132 S.Ct. 1399. See also ibid. (listing proced-
          •
viction undisturbed.                                      ures currently used by various States). This, too,
                                                          will help ensure against meritless claims.
     In implementing a remedy in both of these situ-
ations, the trial court must weigh various factors;                                  III
and the boundaries of proper discretion need not be             [26] The standards for ineffective assistance of
defined here. Principles elaborated over time in de-       counsel when a defendant rejects a plea offer and
cisions of state and federal courts, and in statutes       goes to trial must now be applied to this case. Re-
and rules, will serve to give more complete guid-          spondent brings a federal collateral challenge to a
ance as to. the factors that should bear upon the ex-      state-court conviction. Under AEDP A, a federal
ercise of the judge's discretion. At this point,           court may not grant a petition for a writ of habeas
however, it suffices to note two ~.:onsiderations that     corpus unless the state court's adjudication on the
are of relevance.                                          merits was "contrary to, or involved an unreason-
                                                           able application of, clearly established Federal law,
     (24](25] First, a court may take account of a
                                                           as detertnined by the Supreme Court of the United
defendant's earlier expressed willingness, or unwill-
                                                           States." 28 U.S.C. § 2254(d)(l ). A decision is con-
ingness, to accept responsibility for his or her ac-
                                                           trary to clearly established law if the state court
tions. Second, it is not necessary here to decide as a
                                                           "applies a rule that contradicts the governing law
constitutional rule that a judge is required to pre-
                                                           set forth in [Supreme Court] cases." Williams v.
scind (that is to say disregard) any information con-
                                                           Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146
cerning the crime that was discovered after the plea
                                                           L.Ed.2d 389 (2000) (opinion for the Court by
offer was made. The time continuum makes it diffi-
                                                           O'Connor, J.). The Court of Appeals for the Sixth
cult to restore the defendant and the prosecution to
                                                           Circuit could not determine whether the Michigan
the precise positions they occupied prior to the re-
                                                           Court of Appeals addressed respondent's ineffect-
jection of the plea offer, but that baseline can be
                                                           ive-assistance-of-counsel claim or, if it did, "what
consulted in finding a remedy that does not require
                                                           the court decided, or even whether the correct legal
the prose~ution to incur the expense of conducting
                                                           rule was identified." 376 Fed.Appx., at 568-569.
a new trial.




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     [27] The state court's decision may not be quite      by all parties. The case comes to us on that assump-
so opaque as the Court of Appeals for the Sixth Cir-       tion, so there is no need to address this question.
cuit thought, yet the federal court was correct to
note that AEDPA does not present a bar to granting              [28] As to prejudice, respondent has shown that
respondent relief. That is because the Michigan            but for counsel's deficient performance there is a
Court of Appeals identified respondent's ineffect-         reasonable probability he and the trial court would
ive-assistance-of-counsel claim but failed to apply        have accepted the guilty plea. See 376 Fed.Appx.,
Strickland to assess it. Rather than applying Strick-      at 571-572. In addition, as a result of not accepting
land, the state court simpiy found that respondent's       the plea and being convicted at trial, respondent re-
rejection of the plea was knowing and voluntary.           ceived a minimum sentence 3 & half; times greater
Cooper. 2005 WL 599740, *I, App. to Pet.. for              than he would have received under the plea. The
Cert. 45a. An inquiry into whether the rejection of a      standard for ineffective assistance under Strickland
plea is knowing and voluntary, however, is not the         has thus been satisfied.
correct means by which to address a claim of inef-                                                     ""
                                                                [29] As a remedy, the District Court ordered
fective assistance of counsel. See Hill, 474 U.S., at
                                                           specific performance of the original plea agree-
57-59, 106 S.Ct. at 370 (applying Strickland to as-
                                                           ment. The correct remedy in these. circumstances,
sess a claim of ineffective assistance of counsel
                                                           however, is to order the State to reoffer the plea
arising out of the plea negotiation process). After
                                                           agreement. Presuming respondent accepts the offer,
stating the incorrect standard, moreover, the state
                                                           the state trial court can then exercise its discretion
court then made an irrelevant observation about
                                                           in determining whether to vacate the convictions
counsel's performance at trial and mischaracterized
                                                           and resentence respondent pursuant to the plea
respondent's claim as a complaint that his attorney
                                                           agreement, to vacate only some of the convictions
did not obtain a more favorable plea bargain. By
                                                           and resentence respondent accordingly, or to leave
failing to apply Strickland to assess the ineffective-
                                                           the convictions and sentence from trial undisturbed.
assistance-of-counsel claim respondent raised, the
                                                           See Mich. ·ct. Rule 6.302(C)(3) (20 II) ("If there is
state court's adjudication was contrary to clearly es-
                                                           a plea agreement and its terms provide for the de-
tablished federal law. And in that circumstance the
                                                           fendant's plea to be made in exchange for a specific
federal courts in this habeas action can determine
                                                           sentence disposition or a prosecutorial sentence re-
the principles necessary to grant relief. See Panetti
                                                           commendation, the court may ... reject the agree-
v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842,
                                                           ment"). Today's decision leaves open t~'- the trial
 168 L.Ed.2d 662 (2007).
                                                           court how best to exercise that discretion in all the
     Respondent has satisfied Strickland 's two-part       circumstances of the case.
test. Regarding performance, perhaps it could be
                                                                The judgment of the Court of Appeals for the
accepted that it is unclear whether respondent's
                                                           Sixth Circuit is vacated, and the case is remanded
counsel believed respondent could not be convicted
                                                           for further proceedings consistent with this opinion.
for assault with intent to murder as a matter of law
because the shots hit Mundy below the waist, or                It is so ordered.
whether he simply *1391 thought this would be a
persuasive argument to make to the jury to show           Justice SCALIA, with whom Justice THOMAS
lack of specific intent. And, as the Court of Appeals     joins, and with whom THE CHIEF JUSTICE joins
for the Sixth Circuit suggested, an erroneous stra-       as to all but Part IV, dissenting.
tegic prediction about the outcome of a trial is not         "If a plea bargain has been offered, a defendant
necessarily deficient performance. Here, however,           has the right to effective assistance of counsel in
the fact of deficient performance has been conceded         considering whether to accept it. If that right is




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  denied, prejudice can be shown if loss of the plea       all, even though its case is weak-thereby exclud-
  opportuni(V led to a trial resulting in a conviction     ing the defendant from "the criminal justice sys-
  on more serious charges or the imposition of a           tem"?
  more severe sentence. "Ante, at 1387.
                                                                Anthony Cooper received a full and fair trial,
      "The inquiry' then becomes how to define the         was found guilty of all charges by a unanimous
  duty and responsibilities of defense counsel in the      jury, and was given the sentence that the law pre-
  plea bargain process. This is a difficult question       scribed. The Court nonetheless concludes that
  .... Bargaining is, by its nature, defined to a sub-     Cooper is entitled to some sort of habeas corpus re-
  stantial degree by personal style.... This case          lief (perhaps) because his attorney's allegedly in-
  presents neither the necessity nor the occasion to       competent advice regarding a plea offer caused hi·m
  define the duties of defense .counsel in those re-       to receive a full and fair trial. That conclusion is
  spects .... " Missouri v. Frye, ante, at 1408, 132       foreclosed by our precedents. Even if it were not
  S.Ct. 1399.                                              foreclosed, the constitutional right to effective plea-
                                                           bargainers that it establishes is at least a new rule of
     With those words from this and the companion          law, which does not undermine the Michigan Court
case, the. Court today opens a whole new field of          of Appeals' decision and therefore cannot serve as
constitutionalized     criminal    procedure:    plea-     the basis for habeas relief. And the remedy the
bargaining law. The ordinary criminal process has          Court announces-namely, whatever the state trial
become too long, too expensive, and unpredictable,         court in its discretion prescribes, down to and in-
in no small part as a consequence of an intricate          cluding no remedy at all-is unheard-of and quite
federal Code of Criminal Procedure imposed on the          absurd for violation of a constitutional right. I re-
States by this Court in pursuit of perfect justice.        spectfully dissent.
See Friendly, The Bill of Rights as a Code of Crim-
inal Procedure, 53 Cal. L.Rev. 929 ( 1965). The
Court now moves to bring perfection to the altern-              This case and its companion, Missouri v. F1ye,
ative in which prosecutors and *1392 defendants            -U.S.--, 132 S.Ct. 1399,- L.Ed.2d - - ,
have sought relief. Today's opinions deal with only        raise relatively straightforward questions about the
two aspects of counsel's plea-bargaining inad-             scope of the right to effective assistance of counsel.
equacy, and leave other aspects (who knows what            Our case law originally derived that right from the
they might be?) to be worked out in further consti-        Due Process Clause, and its guarantee of a fair trial,
tutional litigation that will burden the criminal pro-     see United States v. Gonzalez-Lopez, 548 U.S. 140,
cess. And it would be foolish to think that                147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), but
"constitutional" rules governing counsel's behavior        the seminal case of Strickland \'. Washington, 466
will not be followed by rules governing the prosec-        U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
ution 's behavior in the plea-bargaining process that      located the right within the Sixth Amendment. As
the Court today announces " 'is the criminal justice       the Court notes, ante, at 1394, the right to counsel
system,' " Frye, ante, at 1407, 132 S.Ct. 1399             does not begin at trial. It extends to "any stage of
(quoting approvingly from Scott & Stuntz, Plea             the prosecution, formal or informal, in court or out,
Bargaining as Contract, 101 Yale L.J. 1909, 1912           where counsel's absence might derogate from the
(1992) (hereinafter Scott)). Is it constitutional, for     accused's right to a fair trial." United States v.
example, for the prosecution to withdraw a plea of-        Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18
fer that h~s already been accepted? Or to withdraw         L.Ed.2d 1149 (1967). Applying that principle, we
an offer before the defense has had adequate time to       held that the "entry of a guilty plea, whether to a
consider and accept it? Or to make no plea offer at        misdemeanor or a felony charge, ranks as a 'critical




                                                                                   ·,-·;!. ·;'




                                                                                                           3 .   .
                                                                                                                  ~··"·'·
                                                                                                                      .


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stage' at which the right to counsel adheres." Iowa        S.Ct. 2052. That is what Strickland 's requirement
''· Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158            of "prejudice" consists of: Because the right to ef-
L.Ed.2d 209 (200~); see also Hill v. Lockhart, 474         fective assistance has as its purpose the assurance
U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).         of a fair trial, the right is not infringed unless coun-
And it follows from this that acceptance of a plea         sel's mistakes call into question the basic justice of
offer is a critical stage. That, and nothing more, is      a defendant's conviction or sentence. That has been,
the point of the Court's observation in Padilla v.         until today, entirely clear. A defendant must show
Kentucky, 559 U.S. - - , - - , 130 S.Ct. 1473,             "that counsel's errors were so serious as to deprive
 1486, 176 L.Ed.2d 284 (20 10), that "the negotiation      the defendant of a fair trial, a trial whose result is
of a plea bargain is a critical phase of litigation for    reliable." !d., at 687, 104 S.Ct. 2052. See also
purposes of the Sixth Amendment right to effective         Gonzalez-Lopez, supra, at 147, 126 S.Ct. 2557.
assistance of counsel." The defendant in Padilla           Impairment of fair trial is how we distinguish
had accepted the plea bargain and pleaded guilty,          between unfortunate attorn_ey error and error of
abandoning his right to a fair trial; he was entitled            . .
                                                           const1tut10na     . 'fiJcance. FNl
                                                                          I signi
to advice of competent counsel before he did *1393
so. The Court has never held that the rule articu-                  FN 1. Rather than addressing the constitu-
lated in Padilla, Tovar, and Hill extends to all as-                tional origins of the right to e.ffedive coun-
pects of plea negotiations, requiring not just advice               sel, the Court responds to the broader
of competent counsel before the defendant accepts                   claim (raised by no one) that "the sole pur-
a plea bargain and pleads guilty, but also the advice               pose of the Sixth Amendment is to protect
of competent counsel before the defendant rejects a                 the right to a fair trial." Ante, at 1385
plea bargain and stands on his constitutional right                 (emphasis added). Cf. Brief for United
to a fair trial. The latter is a vast departure from our            States as Amicus Curiae 10-12 (arguing
past cases, protecting not just the constitutionally                that the "purpose of the Sixth Amendment
 prescribed right to a fair adjudication of guilt and               right to counsel is to secure a lair trial"
 punishment, but a judicially invented right to ef-                 (emphasis added)); Brief for Petitioner
 fective plea bargaining.                                           12-21 (same). To destroy that straw man,
                                                                    the Court cites cases in which violations of
     It is also apparent from Strickland that bad plea              rights other than the right to effective
bargaining has nothing to do with ineffective assist-               counsel-and, perplexingly, even rights
ance of counsel in the constitutional sense. Strick-                found outside the Sixth Amendment and
land explained that "[i]n giving meaning to the re-                 the Constitution entirely-were not cured
quirement [of effective assistance], ... we must take               by a subsequent trial. Vasquez v. Hillery,
its purpose-to ensure a fair trial-as the guide.".                  474 U.S. 254, 106 S.Ct. 617, 88- L.Ed.2d
466 U.S., at 686, I 04 S.Ct. 2052. Since "the right to              598 (1986) (violation of equal protection
the effective assistance of counsel is recognized not               in grand jury selection); Ballard v. United
for its own sake, but because of the effect it has on               States, 329 U.S. 187, 67 S.Ct. 261, 91
the ability of the accused to receive a fair trial,"                L.Ed. 181 (1946) (violation of statutory
United Stales v. Cronic, 466 U.S. 648, 658, 104                     scheme providing that women serve on jur-
S.Ct. 2039, 80 L.Ed.2d 657 ( 1984), the                             ies); Stirone v. United States, 361 U.S.
"benchmark" inquiry in evaluating any claim of in-                  212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960)
effective assistance is whether counsel's perform-                  (violation of Fifth Amendment ri¥ht to in-
ance "so undermined the proper functioning of the                   dictment by grand jury). Unlike the right to
adversarial process" that it failed to produce a reli-              effective counsel, no showing of prejudice
ably "just result." Strickland, 466 U.S., at 686, l 04              is required to make violations of the rights




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        at issue m Vasquez, Ballard, and Stirone          principles of double jeopardy would likely make fi-
        complete. See Vasquez. supra. at 263-264,         nal. See id.. at 383-385, 113 S.Ct. 838 (STEVENS,
        I 06 S.Ct. 617 ("[D]iscrimination in the          J., dissenting); Bullington v. Missouri, 451 U.S.
        grand jury undermines the structural integ-       430, 101 S.Ct. 1852,68 L.Ed.2d 270 (1981). By the
        rity of the criminal tribunal itself, and is      time Fretwell's claim came before us, however, the
        not amenable to harmless-error review");          Circuit law had been overruled in light of one of
        Ballard, supra, at 195, 67 S.Ct. 261              our cases. We determined that a prejudice analysis
        ("[R]eversible error does not depend on a         "focusing solely on mere outcome determination,
        showing of prejudice in an individual             without attention to whether the result of the pro-
        case"); Stirone, supra, at 217, 80 S.Ct. 270      ceeding was fundamentally unfair or unreliable,"
        ("Deprivation of such a basic right is far        would be defective. Fretwell. 506 U.S., at 369, 113
        too serious to be 'treated as nothing more        S.Ct. 838. Because counsel's error did not "deprive
        than a variance and then dismissed as             the defendant of any substantive or procedural right
        harmless error"). Those cases are thus ir-        to which the law entitles him," the defendant's sen-
        relevant to the question presented here,          tencing proceeding was fair and its result was reli-
        which is whether a defendant can establish        able, even though counsel's error may have affected
        prejudice under Strickland v. Washington,         its outcome. !d., at 372, 113 S.Ct. 838. In Williams
        466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d          v. Taylor, 529 U.S. 362, 391-393, 120 S.Ct. 1495,
        674 ( 1984), while conceding the fairness         146 L.Ed.2d 389 (2000), we explained that even
        of his conviction, sentence, and appeal.          though Fretwell did not mechanically apply an out-
                                                          come-based test for prejudice, its reasoning was
     *1394 To be sure, Strickland stated a rule of        perfectly consistent with Strickland. "Fretwell's
thumb for measuring prejudice which, applied              counsel had not deprived him of any substantive or
blindly and out of context, could support the             procedural right to which the law entitled him." 529
Court's holding today: "The defendant must show                                           2
                                                          U.S. at 392, 120 S.Ct. l495.FN
that there is a reasonable probability that, but for
counsel's unprofessional errors, the result of the                FN2. Kimmelman v. Morrison, 477 U.S.
proceeding would have been different." 466 U.S., at               365, l 06 S.Ct. 2574, 91 L.Ed.2d 305
694, I 04 S.Ct. 2052. Strickland itself cautioned,                ( 1986), cited by the Court, ante, at 1396 -
however, that its test was not to be applied in a                 1397, does not contradict this principle.
mechanical fashion, and that courts were not to di-               That case, which predated Fretwell and
vert their "ultimate focus" from "the fundamental                 Williams, considered whether our holding
fairness of the proceeding whose result is being                  that Fourth Amendment claims fully litig-
challenged." !d., at 696, 104 S.Ct. 2052. And until               ated in state court cannot be raised in fed-
today we have followed that course.                               eral habeas "should be extended to Sixth
                                                                  Amendment claims of ineffective assist-
     In Lockhart v. Fretwell, 506 U.S. 364, 113                   ance of counsel where the principal allega-
S.Ct. 838, 122 L.Ed.2d 180 ( 1993), the deficient                 tion and manifestation of inadequate rep-
performance at issue was the failure of counsel for               resentation is counsel's failure to file a
a defendant who had been sentenced to death to                    timely motion to suppress evidence al-
make an objection that would have produced a sen-                 legedly obtained in violation of the Fourth
tence of life imprisonment instead. The. objection                Amendment." 477 U.S., at 368, 106 S.Ct.
was fully supported by then-extant Circuit law, so                2574. Our negative answer to that question
that the sentencing court would have been com-                    had nothing \O do with the issue here. The
pelled to sustain it, producing a life sentence that              parties in Kimmelman had not raised the




                                                                                                                 -:.··-··

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                                                                                                     Page 20
132 S.ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



         question "whether the admission of illeg-         Fretwell, and Williams all instruct that the pure out-
         ally seized but reliable evidence can ever        come-based test on which the Court relies is an er-
         constitute 'prejudice' under Strickland           roneous measure of cognizable prejudice. In ignor-
         "-a question similar to the one presented         ing Strickland 's "ultimate focus ... on the funda-
         here-and the Court therefore did not ad-          mental fairness of the proceeding whose result is
         dress it. !d., at 391, I 06 S.Ct. 2574            being challenged," 466 U.S., at 696, I 04 S.Ct.
         (Powell, J., concurring in judgment); see         2052, the Court has lost the forest for the trees,
         also id., at 380, 106 S.Ct. 2574. Kimmel-         leading it to accept what we have previously rejec-
         man made clear, however, how the answer           ted, the "novel argument that constitutional rights
         to that question is to be determined: "The        are infringed by trying the defendant rather than ac-
         essence of an ineffective-assistance claim        cepting his plea of guilty." Weatherford, ~supra, at
         is that counsel's unprofessional errors so        561, 97 S.Ct. 837.
         upset the adversarial balance between de-
         fense and prosecution that the trial was                                     II
         rendered unfair and the verdict rendered               Novelty alone is the second, independent reas-
         suspect, " id., at 374, 106 S.Ct. 2574            on why the Court's decision is wrong. This case
         (emphasis added). "Only those habeas peti-        arises on federal habeas, and hence is governed by
         tioners who can prove under Strickland            the Antiterrorism and Effective Death Penalty Act
         that they have been denied a fair trial ...       of 1996 (AEDPA). Since, as the Court.. acknow-
         will be granted the writ," id., at 382, I 06      ledges, the Michigan Court of Appeals adjudicated
         S.Ct. 2574 (emphasis added). In short,            Cooper's ineffective-assistance claim on the merits,
         Kimmelman 's only relevance is to prove           AEDP A bars federal courts from granting habeas
         the Court's opinion wrong.                        relief unless that court's decision was "contrary to,
                                                           or involved an unreasonable application of, clearly
     Those precedents leave no doubt about the an-         established Federal law, as determined by the Su-
swer to the question presented here. *1395 As the          preme Court of the United States." 28 U.S.C. §
Court itself observes, a criminal defendant has no         2254(d)( I). Yet the Court concludes that §
right to a plea bargain. Ante, at 1395 - 1396.             2254(d)(l) does not bar relief here, because "[b]y
"[T]here is no constitutional right to plea bargain;       failing to apply Strickland to assess the ineffective-
the prosecutor need not do so if he prefers to go to       assistance-of-counsel claim respondent raised, the
trial." Weatherford v. Bursey, 429 U.S. 545, 561, 97       state court's adjudication was contrary to clearly es-
S.Ct. 83 7, 51 L.Ed.2d 30 (1977). Counsel's mis-           tablished federal law." Ante, at 1390. That is not so.
takes in this case thus did not "deprive the defend-
ant of a substantive or procedural right to which the         The relevant portion of the Michigan Court of
law entitles him," Williams, supra, at 393, 120            Appeals decision reads as follows:
S.Ct. 1495. Far from being "beside the point," ante,
                                                               "To establish ineffective assistance, the defend-
at 1406, that is critical to correct application of our
                                                             ant must demonstrate that his counsel's perform-
precedents. Like Fretwell, this case "concerns the
                                                             ance fell below an objective standard of reason-
unusual circumstance where the defendant attempts
                                                             ableness and that counsel's representation so pre-
to demonstrate prejudice based on considerations
                                                             judiced the defendant that he was deprived of a
that, as a matter of law, ought not inform the in-
                                                             fair trial. With respect to the prejudice aspect of
quiry," 506 U.S., at 373, 113 S.Ct. 838 (O'Connor,
                                                             the test, the defendant must demonstrate a reas-
1., concurring); he claims "that he might have been
                                                             onable probability that, but for counsel's errors,
denied 'a right the law simply does not recognize,'
                                                             the result of the proceedings would ~.11ve been
" id., at 375, 113 S.Ct. 838 (same). Strickland,
                                                             different, and that the attendant proceedings were




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                                                                                                     Page 21
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



  fundamentally unfair and unreliable.                     know and follow the law," Wooqford v. Visciotti,
                                                           537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279
    "Defendant challenges the trial court's finding        (2002) (per curiam), a presumption borne out here
  after a Ginther hearing that defense counsel             by the state court's recitation of the correct legal
  provided effective assistance to defendant during        standard.
  the plea bargaining process. He contends that de-
  fense counsel failed to convey the benefits of the            Since it is ambiguous whether the state court's
  plea offer to him and ignored his desire to plead        holding was based on a lack of prejudice or rather
  guilty, and that these failures led him to reject a      the court's factual determination that there had been
  plea offer that he now wishes to accept. However,        no deficient perfonnance, to provide relief under
  the record shows that defendant knowingly and            AEDP A this Court must conclude that both hold-
  intelligently rejected two plea offers and chose to      ings would have been unreasonable applications of
  go to trial. The record fails to support defendant's     clearly established law. See Premo v. Moore, 562
  contentions that defense counsel's *1396 repres-         U.S. - - , - - , 131 S.Ct. 733, 740-741, 178
  entation was ineffective because he rejected a de-       L.Ed.2d 649 (20 II). The first is impossible of do-
  fense based on [a] claim of self-defense and be-         ing, since this Court has never held that a defendant
  cause he did not obtain a more favorable plea            in Cooper's position can establish Strickland preju-
  bargain for defendant." People v. Cooper, No.            dice. The Sixth Circuit thus violated AEDPA in
  250583 (Mar. 15, 2005), App. to Pet. for Cert.           granting habeas relief, and the Court now does the
  45a, 2005 WL 599740, [at] * 1 (per curiam)               same.
  (footnote and citations omitted).
                                                                                   III
     The first paragraph above, far from ignoring              It is impossible to conclude discussion of
Strickland, recites its standard with . a good deal       today's extraordinary opinion without commenting
more accuracy than the Court's opinion. The second        upon the remedy it provides for the unconstitutional
paragraph, which is presumably an application of          conviction. It is a remedy unheard-of in American
the standard recited in the first, says that "defendant   jurisprudence-and, I would be willing to bet, in
knowingly and intelligently rejected two plea offers      the jurisprudence of any other country.
and chose to go to trial." This can be regarded as a
denial that there was anything "fundamentally un-              The Court requires Michigan to "reoffer the
fair" about Cooper's conviction and sentence, so           plea agreement" that was rejected because of bad
that no Strickland prejudice had been shown. On            advice from counsel. Ante, at 1391. That would in-
the other hand, the entire second paragraph can be         deed be a powerful remedy-but for the fact that
regarded as a contention that Cooper's claims of in-       Cooper's acceptance of that reoffered agreement is
adequate representation were unsupported by the            not conclusive. Astoundingly, "the state trial court
record. The state court's analysis was admittedly          can then exercise its discretion in determining
not a model of clarity, but federal habeas corpus is       whether to vacate the convictions and resentence
          •<
a "guard against extreme malfunctions in the state         respondent pursuant to the plea agreement, to va-
criminal justice systems," not a license to penalize       cate only some of the convictions and resentence
a state court for its opinion-writing technique. Har-      respondent accordingly, or to leave the convictions
rington v. Richter, 562 U.S. - - , - - , 131 S.Ct.         and sentence from -trial undisturbed. " Ibid.
770, 786, 178 L.Ed.2d 624 (20 11) (internal quota-         (emphasis added).
tion marks omitted). The Court's readiness to find
                                                               Why, one might ask, require a "reoffer" of the
error in the Michigan court's opmwn is
                                                           plea agreement, and its acceptance by the defend-
"inconsistent with the presumption that state courts
                                                           ant? If the district court finds (as a necessary ele-




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                                                                                                       Page 22
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLVf 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



ment, supposedly, of Strickland prejudice) that            greater malefactor, much less for the purpose of
Cooper would have accepted the original offer, and         sparing the expense of trial. See, e.g., World Plea
would thereby have avoided trial and conviction,           Bargaining 344, 363-366 (S. Thaman ed. 20 10). In
why not skip the reoffer-and-reacceptance minuet           Europe, many countries adhere to what t,hey aptly
and simply leave it to the *1397 discretion of the         call the "legality principle" by requiring prosec-
state trial court what the remedy shall be? The an-        utors to charge all prosecutable offenses, which is
swer, of course, is camouflage. Trial courts, after        typically incompatible with the practice of charge-
all, regularly accept or reject plea agreements, so        bargaining. See, e.g., id., at xxii; Langbein, Land
there seems to be nothing extraordinary about their        Without Plea Bargaining: How the Germans Do It,
accepting or rejecting the new one mandated by             78 Mich. L.Rev. 204, 210-211 (1979) (describing
today's decision. But the acceptance or rejection of       the "Legalita~sprinzip," or rule of compulsory pro-
a plea agreement that has no status whatever under         secution, in Germany). Such a system reflects an
the United States Constitution is worlds apart from        admirable belief that the law is the law, and those
what this is: "discretionary" specification of a rem-      who break it should pay the penalty provided.
edy for an unconstitutional criminal conviction.
                                                                In the United States, we have plea bargaining
     To be sure, the Court asserts that there are          a-plenty, but until today it has been regarded as a
"factors" which bear upon (and presumably limit)           necessary evil. It presents grave risks of prosec-
exercise of this discretion-factors that it is not         utorial overcharging that effectively compels an in-
prepared to specify in full, much less assign some         nocent defendant to avoid massive risk by pleading
determinative weight. "Principles elaborated over          guilty to a lesser offense; and for guilty defendants
time in decisions of state and federal courts, and in      it often-perhaps usually-results in a~ sentence
statutes and rules" will (in the Court's rosy view)        well below what the law prescribes for the actual
sort all that out. Ante, at 1389. I find it extraordin-    crime. But even so, we accept plea bargaining be-
ary that "statutes and rules" can specify the remedy       cause many believe that without it our long and ex-
for a criminal defendant's unconstitutional convic-        pensive process of criminal trial could not sustain
tion. Or that the remedy for an unconstitutional           the burden imposed on it, and our system of crimin-
conviction should ever be subject at all to a trial        al justice would grind to a halt. See, e.g., Alschuler,
judge's discretion. Or, finally, that the remedy           Plea Bargaining and its History, 79 Colum. L.Rev.
could ever include no remedy at all.                       I, 38 (1979).

     I suspect that the Court'~ squeamishness in                Today, however, the Supreme Court of the
fashioning a remedy, and the incoherence of what it       United States elevates plea bargaining from a ne-
comes up with, is attributable to its realization,        cessary evil to a constitutional entitlement. It is no
deep down, that there is no real constitutional viola-     longer a somewhat embarrassing adjunct to our
tion here anyway. The defendant has been fairly           criminal justice system; rather, as the Court an-
tried, lawfully convicted, and properly sentenced,        nounces in the companion case to this one, " 'it is
and any "remedy" provided for this will do nothing        the criminal justice system.' " Frye,Jante, at 1407,
but undo the just results of a fair adversarial pro-       132 S.Ct. 1399 (quoting approvingly fr.om Scott
cess.                                                      1912). Thus, even *1398 though there is no doubt
                                                          that the respondent here is guilty of the offense
                          IV                              with which he was charged; even though he has re-
     In many-perhaps most-countries of the                ceived the exorbitant gold standard of American
world, American-style plea bargaining is forbidden        justice_:__a full-dress criminal trial with its innumer-
in cases as serious as this one, even for the purpose     able constitutional and statutory limitations upon
of obtaining testimony that enables conviction of a




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                                                                                                     Page 23
132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



the evidence that the prosecution can briM forward,       Justice AUTO, dissenting.
and (in Michigan as in most States F ) the re-                 For the reasons set out in Parts I and II of
quirement of a unanimous guilty verdict by impar-         Justice SCALIA's dissent, the Court's holding in
tial jurors; the Court says that his conviction is in-    this case misapplies our ineffective-assist-
valid because he was deprived of his constitutional       ance-of-counsel case law and violates the require-
entitlement to plea-bargain.                              ments of the Antiterrorism and Effective Death
                                                          Penalty Act of 1996. Respondent received a trial
         FN3. See People v. Cooks, 446 Mich. 503,         that was free of any identified constitutional error,
         510, 521 N.W.2d 275, 278 (1994); 6 W.            and, as a result, there is no basis for concluding that
         LaFave, J. Israel, N. King, & 0. Kerr,           respondent suffered prejudice and certainly not for
         Criminal Procedure§ 22.1(e) (3d ed. 2007         granting habeas relief.
         and Supp. 2011-2012).
                                                               The weakness in the Court's analysis is high-
     I am less saddened by the outcome of this case       lighted by its opaque discussion of the remedy that
than I am by what it says about this Court's attitude     is appropriate when a plea offer is rejected due to
toward criminal justice. The Court today embraces         defective legal representation. If a defendant's Sixth
the sportiilg-chance theory of criminal law, in           Amendment rights are violated when deficient legal
which the State functions like a conscientious            advice about a favorable plea offer causes the op-
casino-operator, giving each player a fair chance to      portunity for that bargain to be lost, the only logical
beat the house, that is, to serve less time than the      remedy is to give the defendant the benefit of the
law says he deserves. And when a player is ex-            favorable deal. But such a remedy would cause ser-
cluded from the tables, his constitutional rights         ious injustice in many instances, as I believe the
have been violated. I do not subscribe to that the-       Court tacitly recognizes. The Court therefore es-
ory. No one should, least of all the Justices of the      chews the only logical remedy and relies on the
Supreme Court.                                            lower courts to exercise sound discretion in determ-
                                                          ining what is to be done.
    ***
                                                               Time will tell how this works out. The Court,
     Today's decision upends decades of our cases,
                                                          for its part, finds it unnecessary to define "the
violates a federal statute, and opens a whole new
                                                          boundaries of proper discretion" in today's opinion.
boutique       of    constitutional   jurisprudence
                                                          Ante, at 1389. In my view, requiring the prosecu-
("plea-bargaining law") without even specifying the
                                                          tion to renew* 1399 an old plea offer would repres-
remedies the boutique offers. The result in the
                                                          ent an abuse of discretion in at least two circum-
present case is the undoing of an adjudicatory pro-
                                                          stances: first, when important new information
cess that worked exactly as it is supposed to. Re-
                                                          about a defendant's culpability comes to light after
leased felon Anthony Cooper, who shot repeatedly
                                                          the offer is rejected, and, second, when the rejec-
and gravely injured a woman named Kali Mundy,
                                                          tion of the plea offer results in a substantial ex-
was tried and convicted for his crimes by a jury of
                                                          penditure of scarce prosecutorial or judicial re-
his peers, and given a punishment that Michigan's
                                                          sources.
elected representatives have deemed appropriate.
Nothing about that result is unfair or unconstitu-              The lower court judges who must implement
tional. To the contrary, it is wonderfully just, and      today's holding may-and I hope, will-do so in a
infinitely., superior to the trial-by-bargain that        way that mitigates its potential to produce unjust
today's opinion affords constitutional status. I re-      resi.1lts. But I would not depend on these judges to
spectfully dissent.                                       come to the rescue. The Court's interpretation of the
                                                          Sixth Amendment right to counsel is unsound, and I




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                                                                                                      Page 24
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726,
23 Fla. L. Weekly Fed. S 203
(Cite as: 132 S.Ct. 1376)



therefore respectfully dissent.


U.S.,2012.
Lafler v. Cooper
132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244,
12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal
D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203

END OF DOCUMENT




                            ©2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
               Ex Parte Moussazadeh




361 S.W. 3d 684 (T~x. Grim. App. February 15, 2012)




                 (   11   PAGES   )
we5iiaw.
                                                                                                                Page I
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)




                                                            [1]. Habeas Corpus 197    ~899


      Court of Criminal Appeals of Texas.                  197 Habeas Corpus
   Ex parte Max MOUSSAZADEH, Applicant.                         197IV Operation and Effect of Determination;
                                                           Res Judicata; Successive Proceedings
             Nos. AP-76,439, AP-74,185.                            197k899 k. Dismissal or hearing on success-
                   Feb. 15,2012.                           ive petitions; evidence. Most Cited Cases
                                                                Court of Criminal Appeals would reconsider,
Backgro~nd: After pleading guilty to murder, and
                                                           on its own initiative, applicant's initial application
after his murder conviction was affirmed on appeal,
                                                           for writ of habeas corpus, which the Court had pre-
962 S.W.2d 261, applicant sought a writ of habeas
                                                           viously denied, and, thus, would dismiss applicant's
corpus, contending that his mistaken understanding
                                                           subsequent habeas application. Rules App.Proc.,
of parole eligibility based on misinformation coun-
                                                           Rule 79.2(d).
sel conveyed to him rendered his guilty plea invol-
untary. The 232nd District Court, Harris County,            [21 Habeas Corpus 197 ~894.1
A.D. Azios, J., entered findings of fact supporting
relief. The Court of Criminal Appeals, 64 S.W.3d            197 Habeas Corpus
404, denied relief. Applicant filed subsequent                    197IV Operation and Effect of Determination;
habeas application, and a suggestion for reconsider-        Res Judicata; Succe~sive Proceedings
ation asking the Court of Criminal Appeals, on its                    197k894 Refusal to Discharge; Subsequent
own motion, to reconsider its denial of initial             Applications; Prejudice
habeas appiication.                                                          197k894.1 k. In general. Most Cited
                                                            Cases                                               ...
Holdings: The Court of Criminal Appeals, Johnson                  An initial application for a writ of habeas cor-
, J., held that:                                            pus seeking an out-of-time appeal does not consti-
(I) it would reconsider, on its own initiative, ap-         tiite a challenge to the conviction and does not bar
plicant's initial habeas application;                       subsequent writ applications.
(2) question of whether parole eligibility forms an
affirmative:' part or essential element of the plea         [31 Criminal Law 110    ~273.1(3)
agreement is not determinativ-e of court's deficient
performance inquiry under Strickland; abrogating,           II 0 Criminal Law
Ex parte Evans, 690 S.W.2d.l74;                                 IIOXV Pleas
(3) counsel's misinformation to defendant as to his                l!Ok272 Plea of Guilty
parole eligibility constituted deficient performance;                 II Ok273.1 Voluntary Character
and                                                                       l!Ok273.1(3) k. Effect of illegal deten-
(4) counsel's error prejudiced defendant, and thus          tion or violation of constitutional rights; illegally
was ineffective assistance.                                 acquired evidence. Most Cited Cases
                                                                 Counsel's. advice can provide assistance so in~
       Relief granted upon reconsideration.                 effective that it renders a guilty plea involuntary.
                                                            U.S.C.A. Const.Amend; 6.

       Keller, P.J., concurred in judgment, with opin-      [4] Criminal Law 110    ~273.1(3)
ion.
                                                            II 0 Ciiminal Law
                    West Headnotes                              IIOXV Pleas


                                                                                                     ·--.,._.




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361 S.W.3d 684
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       II Ok272 Plea of Guilty                                         284k48.1 k. In general. Most Cit€d Cases
           11 Ok273 .I Voluntary Character                       Parole eligibility requirements are direct con-
               11 Ok273.1 (3) k. Effect of illegal deten-   sequences of a guilty plea because they are a defin-
tion or violation of constitutional rights; illegally       ite and largely automatic result of a guilty plea.
acquired evidence. Most Cited Cases
     A guilty plea is not knowing or voluntary if           [8] Pardon and Parole 284 €:=47
made as a result of ineffective assistance of coun-
                                                            284 Pardon and Parole
sel. U.S.C.A. Const.Amend. 6.
                                                               284II Parole
[5] Criminal Law 110 ~273.1(3)                                     284k45 Authority or Duty to Grant~Parole or
                                                            Parole Consideration
11 0 Criminal Law                                                         284k47 k. Discretionary nature. Most
    IIOXV Pleas                                             Cited Cases
       11 Ok272 Plea of Guilty                                  Parole attainment is not governed by statute
           110k273.1 Voluntary Character                    and is granted at the discretion of the parole board.
              II Ok273.1 (3) k. Effect of illegal deten-
tion or violation of constitutional rights; illegally       [9] Constitutional Law 92 €:;:::>2789
acquired evidence. Most Cited Cases
                                                            92 Constitutional Law
     A defendant's decision to plead guilty when
                                                               92XXIII Ex Post Facto Prohibitions
based upon erroneous advice of counsel is not done
                                                                     92XXIII(A} Constitutional Prohibitions in
voluntarily and knowingly.
                                                            General
[6) Pardon and Parole 284 ~42.1                                         92k2789 k. Penal laws in general. Most
                                                            Cited Cases
284 Pardon and Parole
   284II Parole                                             Constitutional Law 92    ~2790

        284k42 Constitutional and Statutory Provi-
                                                            92 Constitutional Law
sions
                                                                92XXIII Ex Post Facto Prohibitions
         284k42.l k. In general. Most Cited Cases
                                                                      92XXIII(A) Constitutional Prohibitions in
Prisons 310   ~248                                          General
                                                                        92k2790 k. Punishment in general. Most
310 Prisons                                                 Cited Cases
    31 OII Prisoners and Inmates                                 A law that changes the punishment for a crime
        31 OII(F) Duration of Confinement                   after the crime has been committed is an unconsti-
                31 Ok248 k. Conditional release; com-       tutional ex post facto law only if it inflicts a greater
munity placement. Most Cited Cases                          punishment than did the previous law. ··u.S.C.A.
     The statute in effect when the.holding offense         Canst. Art. l, § I 0, cl. I.
is committed determines an inmate's eligibility for
release on mandatory supervision or parole.                 [10] Constitutional Law 92 €:=2789

[7] Pardon and Parole 284      ~48.1                        92 Constitutional Law
                                                               92XXIII Ex Post Facto Prohibitions
284 Pardon and Parole                                               92XXIII(A) Constitutional Prohibitions in
   284II Parole                                             General
        284k48 Eligibility for Parole or Parole Con-                    92k2789 k. Penal laws in general. Most
sideration                                                  Cited Cases




                            ©·2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                                         Page 3
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)




     A statute which mitigates the rigor of the law        II 0 Criminal Law
in force at the time a crime was committed cannot              11 OXXXI Counsel
be regarded as ex post facto with reference to that                II OXXXI(C) Adequacy of Representation
crime. U.S.C.A. Canst. Art. l, § 10, ct. l.                            llOXXXI(C)l In General
                                                                           11 Ok 1879 Standard of Effective As-.
[11] Criminal Law 110 €=1920                              sistance in General
                                                                              II Ok 1882 k. Deficient representa-
110 Criminal Law
                                                          tion in general. Most Cited Cases
    II OXXXI Counsel
                                                                Counsel's performance is deficient, as neces-
        llOXXXI(C) Adequacy of Representation
                                                          sary to establish ineffective assistance, if it is
           llOXXXI(C)2 Particular Cases and Issues
                                                          shown to have fallen below an objective standard of
              ll0kl920 k. Plea. Most Cited Cases
                                                          reasonableness; the constitutionally appropriate
     The question of whether parole eligibility
                                                          level of reasonableness is defined by the practices
forq~s an affirmative part or essential element of the
                                                          and expectations of the legal community and pre-
plea agreement is not determinative of the court's
                                                          vailing professional norms therein. U.S.C.A.
deficient perfonnance inquiry under the Strickland
                                                          Const.Amend. 6.
test for ineffective assistance of counsel; abrogat-
ing, Ex parte Evans, 690 S.W.2d 274. U.S.C.A.             [14] Criminal Law 110 €:=>1920
Const.Amend. 6.
                                                          II 0 Criminal Law
[12] Habeas Corpus 197 €=486(3)                               II OXXXI Counsel
                                                                  II OXXXI(C) Adequacy of Representation
197 Habeas Corpus
                                                                      II OXXXI(C)2 Particular Cases and Issues
    197II Grounds for Relief; Illegality of Restraint
                                                                          II Ok 1920 k. Plea. Most Cited Cases
       l97II(B) Particular Defects and Authority for
                                                               In situations in which the law is not clear, plea
Detention in General
                                                          counsel should advise a client that pending criminal
          197k482 Counsel
                                                          charges may carry a risk of other serious con- ,
               197k486 Adequacy and Effectiveness
                                                          sequences; however, when a serious consequence is
of Counsel
                                                          truly clear, counsel has an equally clear duty to give
                     l97k486(3) k. Arraignment and
                                                          correct advice, and both failure to provide correct
plea. Most Cited Cases
                                                          information and providing incorrect information vi-
     To obtain habeas corpus relief on a claim of in-
                                                          olate that duty.
voluntary plea based on counsel's erroneous advice,
a habeas corpus applicant must meet both prongs of        [15) Criminal Law 110 €:=>1920
the Strickland standard for ineffective assistance of
counsel, which are that counsel's performance was         II 0 Criminal Law
deficient,'and that a probability exists, sufficient to       II OXXXI Counsel
undermine the court's confidence in the result, that              II OXXXI(C) Adequacy of Representation
the outcome would have been different but for                         II OXXXI(C)2 Particular Cases and Issues
counsel's deficient performance; in the context of                        11 Ok 1920 k. Plea. Most Cited Cases
involuntary plea, the "different outcome" is choos-            Defense counsel's misinformation to murder
ing not to plead and instead choosing to go to trial.     defendant as to his parole eligibility, on which de-
U.S.C.A. Const.Amend. 6.                                  fendant relied in pleading guilty, constituted defi-
                                                          cient performance, as element of ineffective assist-
[13] Cri11_1inal Law 110 €=1882                           ance; parole eligibility requirements were pre-
                                                          sumptively mandatory, and counsel provided incor-
                                                                                                             Page 4
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)




rect advice. U.S.C.A. Const.Amend. 6; Vernon's              element of the plea agreement." Ex pafte Mous-
Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed).            sazadeh, 64 S.W.3d 404,413 (Tex.Crim.App.2001)
                                                            , cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154
(16] Criminal Law 110 €;=:>1920                             L.Ed.2d 16 (2002) ( Moussazadeh II, #
                                                            AP-74,185). Applicant filed a subsequent applica-
11 0 Criminal Law
                                                            tion for writ of habeas corpus, Moussazadeh III, #
    11 OXXXI Counsel
                                                            AP-76,439, that *687 asserts that trial counsel's
        11 OXXXI(C) Adequacy of Representation
                                                            mistaken advice regarding parole eligibility
            11 OXXXI(C)2 Particular Cases and Issues
                                                            rendered his plea involuntary. We ordereq the sub-
                ll Ok 1920 k. Plea. Most Cited Cases
                                                            sequent application filed and set for submission.
     Defense counsel's misinformation to murder
                                                            After applicant filed the subsequent application, he
defendant as to his parole eligibility, on which de-
                                                            also filed a suggestion for reconsideration that asks
fendant relied in pleading guilty, prejudiced de-
                                                            this Court, on its own motion, to reconsider its de-
fendant, and thus was ineffective assistance; por-
                                                            cision in Moussazadeh II.
tion of defendant's sentence that had be served be-
fore he became eligible for parole was double the               [ l ][2) This Court, on its own initiative, may re-
portion that he was led to believe he had to serve,         consider a prior denial of habeas corpus relief.
and defendant swore in an affidavit that he would           TEX.R.APP. P. 79.2(d). We now reconsider, on our
not have pled guilty if he had known the actual time        own initiative, the claim raised in applicant's
he would have to serve. U.S.C.A. Const.Amend. 6;            second application for writ of habeas corpus, Mous-
Vernon's Ann.Texas C.C.P. art. 42.18(8)(b )(3)                               1
                                                            sazadeh II, FN and grant relief. Applicant's sub-
(Repealed).                                                 sequent application, Moussazadeh Ill, is dismissed.

*686 Randy Schaffer, Houston, for Appellant.                         FNl. Applicant's first application sought
                                                                     an out-of-time appeal, which we granted.
Andrew J. Smith, Asst. D.A., Houston, Lisa C.
                                                                     Ex parte Moussazadeh, No. AP-72,200
McMinn, State's Attorney, Austin, for State.
                                                                     (Tex.Crim.App. delivered October 25,
                                                                     1995) (not designated for publication).
                     OPINION                                         Such an initial application seeking an out-
JOHNSON, J., delivered the opinion of the Court in                   of-time appeal does not constitute a chal-
which PRICE, WOMACK, KEASLER, HERVEY,                                lenge to the conviction and does not bar
COCHRAN, and ALCALA, JJ.,joined.                                     subsequent writ applications. Ex parte
     Applicant pled guilty to the offense of murder                  McPherson,      32   S.W.3d 860,       861
without an agreement for punishment. The trial                       (Tex.Crim.App.2000).
court accepted the plea and sentenced applicant to
seventy-five years' incarceration. On direct appeal,             In Moussazadeh II, we discussed how applic-
the court of appeals affirmed the judgment of the           ant, under indictment for a capital murder commit-
trial court. Moussazadeh v. State, 962 S.W.2d 261           ted on September 12, 1993, pled guilty to the re-
(Tex.App.-Houston [14th Dist.] 1998, pet. refd) (           duced offense of murder without a sentencing
Moussazadeh I ). Thereafter, applicant filed an ap~         agreement. Applicant, a juvenile at the time of the
plication for habeas corpus relief. In a published          offense, served as "look-out" while one of his three
opinion, we denied relief because applicant "failed         co-defendants shot and killed a man during a rob-
to prove, by a: preponderance of the evidence, that         bery. Moussazadeh II, 64 S.W.3d at 406-07. While
his plea was induced by a misunderstanding of the           initially rejecting the state's offer of a guiHy plea to
applicable parole law which formed an essential             the lesser offense of murder, ultimately applicant
                                                            agreed to plead guilty to murder without a punish-




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ment agreement. The agreement included applic-               sentence up to a maximum of 30 years.
ant's promise to testify at a c~-defendant's trial,          TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3)
which he did. ld. at 407-09. During that testimony,          (effective Sept. I, 1993). Under the law effective
applicant indicated that he understood that, in              until September I, 1993, a person convicted of
pleading guilty to the murder offense and because            murder (but whose conviction did not contain a
of parole-eligibility laws, he was facing a signific-        deadly weapon finding) was eligible for parole
antly ·lesser term of imprisonment than he would             when his good time plus flat time equaled one-
have faced if convicted of capital murder. Jd. at            quarter of the . sentence up to 15 years.
408-09. After the co-defendant's trial ended, ap-            TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3).
plicant w·as sentenced to seventy-five years' incar-         After September I, 1993, a person convicted of
ceration without a deadly-weapon finding. Jd. at             murder was not eligible for parole until he had
409.                                                         served one-half of his sentence or 30 years.
                                                             TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3)
     Applicant's claim in his previous writ applica-         (effective Sept. I, 1993).
tion, which we now reconsider, asserted that
"counsel's gross misadvice regarding parole eligib-             The affidavits submitted by both applicant and
ility rendered applicant's guilty plea involuntary."         his trial counsel with his habeas application state
He argue~ that "the matter of parole eligibility was         that they did not know of these statutory changes.
implicitly incorporated in [his] plea agreement." He         Indeed, we may fairly infer from the record that
also argued that his "guilty plea was involuntary            the judge, prosecutor, and [the co-defendant's]
even if the matter of parole eligibility was not im-         counsel shared the same misunderstanding.
plicitly incorporated in the plea agreement." We             However, neither trial counsel's nor applicant's
quote from our opinion in Moussazadeh II.                    affidavits state that the prosecutor agreed to make
                                                             applicant's parole eligibility a term or essential
     It is quite possible that no one in this proceed-       element of the plea agreement. There is no evid-
  ing knew that the parole law had changed dramat-           ence that the prosecutor ever discussed any spe-
  ically just 11 days before this robbery-murder.            cific term or particular percentage of the sentence
  Applicant's parole eligibility is measured by the          that he believed applicant should or would serve
  law in effect on the date of the offense. Under the        in return for the prosecutor's dropping the
  law effective until September 1, 1993, a person            charges from capital murder to straight murder.
  serving a life sentence for capital murder was not         In sum, we are unable to find any evidence -that
  eligible for parole until serving a flat 35 years.         proves the prosecutor or judge caused applicant
  TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2).               to plead guilty based upon an incorrect under-
  After September I, 1993; that person was not eli-          standing of Texas parole law. [Citation omitted.]
  gible for parole until serving a flat 40 years.
  TEX.CbDE CRIM. PROC. Art. 42.18, § 8(b)(2)                   Jd. at409-10.
  (effective Sept. I, 1993). Under the law effective
  until September I, 1993, a person whose convic-               In Moussazadeh 11, we held that a finding that
  tion included a deadly ?'eapon finding was not           parole eligibility formed an essential part of a plea
  eligible for parole until he had served a flat one-      agreement must be founded upon the express terms
  fourth of 9is sentence, up to a maximum of 15            of the written plea agreement itself, the formal re-
  years. TEX.CODE CRIM. PROC. Art. 42.18, §                cord at the plea hearing, or the written or testimoni-
  8(b)(3). After September I, 1993, a person whose         al evidence submitted by both the prosecution and
  conviction contained a deadly weapon finding             the applicant in a habeas proceeding. I d. at 412. We
  was required to serve a flat one-half *688. of the       were "unable to conclude ... that parole eligibility
                                                           played any part, implicit or explicit, in the plea




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agreement made between the prosecution and ap-             knowingly. Ex parte Battle, 817 S.W.2d 81, 83
plicant." Id. at 413. We therefore "den[ied] applic-       (Tex.Crim.App.l991 ). See alS(? Ex parte •Harring-
ant relief because he ... failed to prove, by a pre-       ton, 310 S.W.3d 452, 459 (Tex.Crim.App.2010)
ponderance of the evidence, that his plea was in-          ("When counsel's representation falls below this [
duced by a misunderstanding of the applicable pa-          Strickland] standard, it renders any resulting guilty
role law which formed an essential element of the          plea involuntary.").
plea agreement." /d. Acknowledging our prior hold-
ings that a guilty plea is not rendered involuntary             Applicant's initial application contended that
simply because the defendant received and relied           "counsel's gross misadvice regarding parole eligib-
upon erroneous advice of counsel concerning parole         ility rendered applicant's guilty plea invgluntary,"
eligibility, and that both parole eligibility and pa-      "the matter of parole eligibility was implicitly in-
role attainment are highly speculative future facts,       corporated in [his] plea agreement," and that his
we likewise rejected applicant's contention that his       "plea agreement was involuntary even if the matter
plea was involuntary regardless of whether the pa-         of parole eligibility was not implicitly incorporated
role eligibility misinformation was implicitly incor-      in the plea agreement." Applicant now asks. this
porated into the plea agreement. Jd. at 413-14.            Court to reconsider his application in light of Pa~
                                                           dilla v. Kentucky, 559 U.S.--, 130 S.Ct. 1473,
     The circumstances surrounding applicant's con-        176 L.Ed.2d 284 (20 10), and overrule our previous
viction are not in dispute. Prior to applicant's plea,     decisions in Ex parte Evans, 690 S.W.2d 274
trial counsel advised applicant about his parole eli-      (Tex.Crim.App.1985), and Moussazadeh II.
gibility, and that advice was incorrect. As we stated
in Moussazadeh ll, "The affidavits submitted by                 The state contends that Padilla has no bearing
both applicant and his trial counsel with his habeas       upon the Court's disposition. of applicant's claim
application state that they did not know of these          and that Ex parte Evans and Moussazadeh II are
[recently effective] statutory changes [in the parole-     "still based upon sound logic regarding parole eli-
eligibility law]. Indeed, we may fairly infer from         gibility and parole attainment as being highly spec-
the record that the judge, prosecutor, and counsel         ulative circumstances that does [sic] not render a
for [the co-defendant against whom applicant testi-        guilty plea involuntary."
fied] shared the same misunderstanding." Mous-
                                                                We conclude that both applicant and the state
sazadeh 11, 64 S.W.3d at 410.
                                                           are partly correct: Padilla is not applicable to the
     [3][4][5] Counsel's advice can provide assist-        facts before us, and our decisions in Ex parte Evans
ance so ineffective that it renders a guilty plea in-      and Moussazadeh /1 were incorrect. We now dis-
voluntary. *689.Hill v. Lockhart, 474 U.S. 52, 56,         avow our prior decisions in Ex parte Evans and
~06 S.Ct. 366, 88 L.Ed.2d 20~ (19~~) (quoting Mc-
                                                           Moussazadeh 11 to the extent that they ( 1) require
Mann v. Richardson, 397 U.S. 759, 771, 90 S.q.             parole-eligibility misinformation to form an essen-
1441, 25 L.Ed.2d 763 (1970); "voluntariness of the         tial part of the plea agreement in order t~ make a
plea depends on whether counsel's advice 'was              showing of an involuntary plea that resulted from
within the range of competence demanded of attor-          ineffective assistance of counsel, based upon such
neys in criminal cases.' "). A guilty plea is not          misinfonnation and (2) fail to appropriately recog-
knowing or voluntary if made as a result of inef-          nize the distinction between parole eligibility and
fective assistance of counsel.t Ex parte Burns, 60.1       parole attainment.
S.W.2d 370, 372 (Tex.Crim.App.1980}. A defend-
                                                                [6] We have previously held that, because of
ant's decision to plead guilty when based upon erro-
                                                            the extremely speculative nature of parQle attain-
neous advice of counsel is not done voluntarily and
                                                            ment, advice from counsel concerning parole does




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   not render a plea involuntary. Ex parte Evans, 690            son is eligible for parole in one year on a ten year
   S.W.2d at 279. However, Evans stated that, because            sentence if virtually no one is being paroled in
   "eligibility for parole is a fluctual [sic] societal de-      less than seven or eight years on a ten year sen-
   cision; highly subject to change," id. at 278,~an.• aPi."     tence. It is for this reason that we have termed
·. plicant must prove, by a preponderance of the evLCir          parole attainment "too speculative to warrant be-
  ,ence, that,paro'le eligibility was an affirmative part        ing given effect upon" a defendant's guilty plea.
   ·         ':·                               · FN2
   or essenttal element of the plea bargain.            !d.      64 S.W.3d at 413, quoting Evans, supra.
   This is an incorrect statement of the law. While the
   general eligibility rules for parole may change over             [7][8][9][10] Contrary to our prior decisions,
   time, the~~Egibility rules remain the same for a giv:       there are considerable, concrete distinctions
   en conviC'tion. Likewise, an inmate who was eli-            between parole attainment and parole eligibility.
   gible for mandatory release at the time of the of-          Parole attainment is indeed highly speculative, due
   fense remains eligible for mandatory release on that        to various factors associated with circumstances
   conviction, even if th!lt offense subsequently be-          surrounding an individual prisoner's parole applica-
   comes eligible for only discretionary mandatory re-         tion, such as the prisoner's behavior in prison, the
   lease. "The statute in effect when the holding of-          composition and attitude of the parole board, the
   fense is committed determines an inmate's eligibil-         identity and attitude of the governor, the population
   ity for release on mandatory*690 supervision or pa-         of the prison system, and regulations governing
   role.";::Ex:cparte~·Thompson, 173 S.W:3d 458, 459'          "good time." Se,e.Ex.pm;te Carillo, 687 S.W.2d 320,
   (Tex.Crim.App.2005). Evans held that, because pa-           325 (Tex.Crim.App.l985) (Miller, J., concurring).
   role attainment was speculative, its "legal import-         The question of parole eligibility, however, elicits a
   ance on the subject of voluntariness of a guilty            straightforward answer because an applicant's pa-
   plea" should be "discounted." Ex parte Evans. 690           role eligibility is determined by the law in effect on
   S.W.2d at 279,. Then, based on its incorrect state-         the date of the offense. Ex parte Thompson, 173
   ment of law, Evans made an erroneous logical leap           S.W.3d at 459. The statutes that govern the punish-
   and applied the same standard to parole eligibility.        ment of a particular offense control the issue of pa-
   As a result, Evans held that erroneous advice as to         role eligibility and are not subject to alteration, ab-
   either parole eligibility or parole attainment would        sent legislative amendment. Even in the event of a
   not render a plea involuntary. !d. In Moussazadeh           legislative amendment making a law more strin-
   II, we further conflated the concepts of eligibility        gent, an applicant is subject only to the law govern-
   and attainment.                                             ing parole eligibility at the time the offense was
                                                               committed. See Ex parte Alegria, 464 S.W.2d 868,
           FN2. See also Ex parte Trahan, 781                  874-75 (Tex.Crim.App.l971) (retroactive applica-
          'S.W.2d 291, 292-93 (Tex.Crim.App.l989)              tion of parole statute that increased defendant's cu-
           (written plea memorandum reflected that             mulation of years required for parole eligibility vi-
           a~pplicant would become eligible:; for parole       olated ex post facto clauses of United States and
           consideration after having served one-                            . . . ) .FN 3 P aro Ie-e 1·tgt'b'l·
                                                               T exas C onstttuttons                                   .
                                                                                                             1 tty requtre"
           fourth of sentence; habeas relief available         ments are direct consequences because they are a
           when that was not the law and terms of              definite and largely automatic result of a guilty
           plea agreement were impossible to fulfill).         plea. See Mitschke v. State, 129 S. W.3d 130, 135
                                                               (Tex.Crim.App.2004): Parole attainment, on the
   Although one can determine current parole eli-              other hand, is not governed by statute and is gran-
   gibility with some degree of certainty, it is really        ted at the discretion of the parole board.
   parole ~ttainment that is significant to a plea bar-
   gaining defendant. It matters very little that a per-                FN3. A law that changes the punishment




                             © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                         ~~~ ~. ...-:.. ;~~:· ·. :.
                                                                                                     . , ...
                                                                                                                                               ·r;
                                                                                                                                               4-···--...    .              .. :!
                                                                                                    .~·~;_.; ,·~:''   ::-   .vi!:   i ~·       .....
                                                                                                                                              .·       ~::       ,..   .:
                                                                                                            Page 8
361 S.W.3d 684
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        for a crime after the crime has been com-          the context' of involuntary plea, the "diff~rent out-
        mitted is an unconstitutional ex post facto        come" is choosing not to plead and instead choos-
        law only if it inflicts a greater punishment       ing to go to trial.
        than did the previous law. Ex parte Tate,
        471         S.W.2d           404,        406            [13][14] Counsel's performance is deficient if it
        (Tex.Crim.App.l971) (op. on reh'g); Ex             is shown to have fallen below an objective standard
        parte Scott, 471 S.W.2d 54, 55-6                   of reasonableness. I d. at 51; Strickland v. Washing-
        (Tex.Crim.App.l971 ). "[A] statute which           ton, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80
        mitigates the rigor of the law. in force,at ,      L.Ed.2d 674 (1984). The constitutionally appropri-
        the time a crime was committed cannot be           ate level of reasonableness is defined by•the prac-
        regarded as ex post facto with reference to        tices and expectations of the legal community and
        that crime." Rooney v. North Dakota, 196           prevailing professional norms therein. Strickland,
        U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494          supra, at 688, 104 S.Ct. 2052. In situations ·in
        ( 1905).                                           which the law is not clear, counsel should advise a
                                                           client that pending criminal charges may carry a
     On a claim of involuntary plea, the standard for      risk of other serious consequences. When a serious
the analysis of harm under the Strickland protocol         consequence is truly clear, however, counsel has an
as expressed in these cases may be stated generally        equally clear duty to give correct advice. Both fail-
as "but for the erroneous advice of counsel, the ap-       ure to provide correct information and protiding in-
plicant*691 would not have plead guilty." Ex parte         correct information violate that duty.
Harrington, 310 S.W.3d at 458. See also Ex parte
Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999)                  [ 15] The terms of the relevant parole-eligibility
; Ex parte Stephenson, 722 S.W.2d 426, 428                 statute are succinct and clear with respect to the
(Tex.Crim.App.l987).                                       consequences of a guilty plea. Based upon the date
                                                           in which the instant offense was · committed,
     [ 11] When deciding whether to accept or reject       Tex.Code Crim. Proc. art. 42.18- § 8(b )(3) clearly
a plea offer, a defendant will likely consider the ac-     and succinctly provided that "a person coq.victed of
tual minimum amount of time he will spend incar-           murder was not eligible for parole until he had
cerated. In order to properly consider his options, a      served one-half of his sentence or thirty years."
defendant needs accurate information about the law         Moussazadeh II, supra, at 409. Applicant's counsel
concerning parole eligibility. Although we continue        could have easily determined the applicable parole-
to recognize the distinction between direct and col-       eligibility requirements simply by reading the text
lateral consequences, we now hold that the question        of the statute. Instead, applicant's counsel failed to
of whether parole eligibility forms an affirmative         inform him of changes in the parole-eligibility stat-
part or essential element of the plea agreement is         utes that essentially doubled the length of time he
not determinative of this Court's deficient-per-           must serve before becoming eligible for parole. The
formance inquiry under Strickland.                         fact that the amendments took effect only eleven
                                                                                                             4
                                                           days before the offense is of no consequence. FN
     [12] To obtain habeas corpus relief on a claim
of .involuntary plea, .an applicant must meet both                  FN4. Parole eligibility is not speculative.
prongs of the Strickland standard: (I) counsel's per-               In this case, parole eligibility was statutor-
formance "was deficient; and (2) that a probability                 ily determined and, at the time of the plea,
exists, sufficient to undermine our confidence in the               there was no speculation about those stat-
result, that the outcome would have been different                  utory terms. Those terms of parole eligibil-
but for counsel['s] deficient performance." Ex parte                ity were clear, succinct, and expli'cit. It ap-
White, 160 S.W.3d 46, 49 (Tex.Crim.App.2004). In                    pears that all parties involved were un-




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         aware that parole eligibility had changed          KELLER, P.J., concurring.
                                                                                                 FN!
         significantly just a few days before the                In overruling Ex parte Evans,         the Court
         commission of the alleged offense.                 creates a new rule of constitutional law. Under
                                                            Teague, with some exceptions, federal·courts may
     The performance of applicant's counsel was de-         not announce or apply new rules of constitutional
ficient: the consequences of applicant's plea could                                        2
                                                            law on collateral review. FN The states are not
have been easily determined by reading the applic-          bound by the Teague rule and may afford retroact-
able statute. Parole-eligibility requirements are pre-      ive effect on collateral review in situations not al-
sumpti"vely mandatory, and applicant's trial counsel                                   3
                                                            lowed under Teague. FN Nevertheless, with re-
provided •incorrect advice. We *692 conclude that           spect to the new Confrontation Clause holding ar-
applicant has sufficiently proved that his counsel                                                     4
                                                            ticulated in Crawford v. Washington.FN we ap-
was constitutionally deficient.                             plied the rule in Teague to bar retroactive applica-
                                                                                    FN5                   .
                                                            tion on habeas corpus.       The Court does not con-
     [ 16] The portion of applicant's sentence that
                                                            duct a retroactivity analysis in this case, and I do
must be served before he becomes eligible for pa-
                                                            not know its reason for making the n·ew rule retro-
role was double the portion that he was led to be-
                                                            active. Has the Court abandoned Teague altogether
lieve he must serve. Based on applicant's affidavit
                     FN5                ·                   in favor of its own retroactivity analysis? Does it
of January 13, 1997,      we also conclude that ap-
                                                            intend to adhere to Teague, but with state-created
plicant would not have pled guilty if he had known
                                                            exceptions? Do any exceptions-articulated in
the actual time he would have to serve, and thus
                                                            Teague or state-created-apply in the present case?
prejudice is shown. We find that the habeas court's
                                                            If the Court is going to overrule prior precedent on
findings of fact and conclusions of law are suppor-
                                                            habeas review, as it does here, I believe that it
ted by the record and agree that relief should be
                                                            should clearly explain how this fits into our retro-
gnmted.
                                                            activity jurisprudence.
         FN5. "tJ:ad Judge Azio~, Mr. Jones, or Mr.
                                                                    FNJ.       690           S.W.2d                274
         CogdelL:Jold m~ that a murder conviction
                                                                    (Tex.Crim.App.1985).
         ;ould require me to serve aggravated time
         of one-half of my sentence, up to a maxim-                 FN2. Teague v. Lane, 489 U.S. 288, 109
         um of 30 years, even without a deadly                      S.Ct. I 060, 103 L.Ed.2d 334 ( 1989).
         weapon finding, I would not have accepted
         the plea bargain."                                         FN3. Danforth v. Minnesota, 552 U.S. 264,
                                                                    128 S.Ct. 1029, 169 L.Ed.2d 859 (2008);
     Accordingly, upon reconsideration, we grant                    Ex parte Lave, 257 S.W.3d 235, 237 & n.
relief. The judgment in this cause is hereby vacated,               15 (Tex.Crim.App.2008).
and appli,cant is remanded to the custody of the
Harris County Sheriff to answer the charges set out                 FN4. 541 U.S. 36, 124 S.Ct. 1354, 158
in the indictment. The trial court shall issue an ap-               L.Ed.2d 177 (2004).
propriate bench warrant within ten days after the
mandate of this Court issues. Copies of this opinion                FN5. Lave, 257 S.W.3d at 237; Ex parte
shall be sent to the trial court and to the Texas De-               Keith,      202      S.W.3d       767
partment of Criminal Justice,. correctional institu-                (Tex.Crim.App.2006).
tions division.
                                                                There is an easier way to resolve this case.
KELLER1 P.J., filed a concurring opinion. MEY-              During the plea colloquy, the trial judge was pre-
ERS, J., did not participate.                               pared to make a deadly weapon finding, but the




                                                                                                 Chr~:.~;::~·~
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    parties explained that the issue was to be left open         to change. Moreover, with regard to the a(ivice giv-
    for the judge to determine at punishment, which              en in Evans, we said in that case:
    would be assessed after applicant testified against a
    co-defendant in accordance with the plea agree-                       FNlO. Jd. at 413.
    ment.FN6 This explanation was consistent with the
                                                                          FNll. See id.
    parties agreeing *693 that applicant would have his
    chance, after cooperating with the State, to per-              No overt sanctioning of this advice by the judge
    suade the, trial judge to make his time                        or the prosecutor appears in the record and it does.
    "non-aggravated," i.e. subject to more generous pa-            not appear to have been a part of the plea bargain .
    role-eligibility rules available to non-3g offenses.                                                       •
                                                                   We realize that it is common for the parties to
    FN? But less than two weeks before the offense had             play the guessing game of parole eligibility in
    been committed, the law had changed to treat                   plea negotiations. We decline, however, to elev-
    murder as an "aggravated" offense for parole-                  ate this common practice to the status of an ele-
    eligibility purposes, regardless of whether there              ment of the plea bargain without some further in-
                                . FN8 In Its
    was a deadly-weapon fin d mg.           . fim d'mgs o f
                                                                   dication from the record evidencing that status.
    fact on applicant's original habeas application, the           We conclude, then, that we are not dealing with a
    habeas judge found that the prosecutor and the trial                      .
                                                                   broken or unposs1 'bl e p Iea bargam
                                                                                                      . situatiOn.
                                                                                                         .     . FN12
    judge ratified defense counsel's misinformation
    about parole eligibility "by attaching significance to               FN12. 690 S.W.2d at 277.
                                      9
    the deadly weapon finding." FN The habeas judge
    recommended that applicant be granted a new trial.                Unlike in Evans, there was overt sanctioning of
                                                                 the attorney's advice by the judge and the prosec-
             FN6. See Ex parte Moussazadeh, 64                   utor, or at least the habeas court could so rationally
             S.W.3d 404,408 (Tex.Crim.App.2001).                 conclude, as it has done. Thus, we simply misana-
                                                                 lyzed the issue under Evans, and it is appropriate
             FN7. See TEX.CODE CRIM. PROC. art.                  for us to reconsider the issue now.
             42.12 § 3g; TEX. GOV'T CODE §
             508.145(d).                                              Further, since our original opinion in this case,
                                                                 we have decided Hooper, where we indicated that
             FN8. Moussazadeh, 64 S.W.3d at 409.                 inference stacking was not necessarily irrational
                                                                 and that we should focus, not on whether inferences
             FN9. The habeas judge also found that ap-
                                                                 are being stacked, but simply on the rationality of
             pellant would not have pleaded guilty ab-
                                                                 the inferences in addressing the sufficiency of the
             sent the misinformation.                               .                        . . FNI3
                                                                 evidence to support a conviction.
         In our original opinion on applicant's habeas
                                                                         FN13. yHooper v. State, 214 S·,W.3d 9,
    application, we declined to follow the habeas
                                                                         16-17 (Tex.Crim.App.2007). If it were ne-
    judge's finding, and her ultimate recommendation,
                                                                         cessary to decide whether Hooper's pro-
    because it required "too many inferences stacked
                                                                         nouncement regarding inference stacking
    upon each other" for the deferral of the deadly
                                                                         constituted a new rule under Teague, I
    weapon issue "to support a finding that it was the
                                                                         would hold that it does not, because, re-
    parties' clear intention that parole eligibili_l:y _was an
                                                                         gardless of the scope of tfexas's version of
    essential element of .t he p lea bargam.. " FNIO We
                                                                         Teague's proscription against announcing
    cited no authority for this "inference-stacking"
                                                                         new constitutional rules of criminal pro-
    holding,FNll and thus it does not appear to be
                                                                         cedure on habeas, see Danforth, supra,
    based upon an established rule that we would have
                                                                         such a proscription cannot apply to basic




                                 © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.
                                                                                           Page II
361 S.W.3d 684
(Cite as: 361 S.W.3d 684)




         s,tandards of habeas practice. Otherwise a
         court could never change its procedures or
         standards on habeas.

     FinallY,, I would not hold, as the Court appears
to do,FNPI that the simple failure to *694 convey
information about parole eligibility renders a guilty
plea involuntary. We need not address whether
counsel has an obligation to convey information
about the,. parole consequences of a plea. In this
case, it is enough to hold that, if counsel does con-
vey this type of information, he must do so cor-
rectly. Here, the information was incorrect.

         FN 14'. "Both failure to provide correct in-
         formation and providing incorrect informa-
         tion violate that duty[.]" Court's opinion at
         691.

     Although I agree that applicant is entitled to a
new trial, I do not join the Court's opinion. I concur
in the Court's judgment.

Tex.Crim.App.,20 12.                                                                       ·.·:.~\



Ex Parte Moussazadeh
361 S.W.3d 684

END OF DOCUMENT




                            © 2012 Thomson Reuters. No Claim to Orig. US Gov. Works.   .   ..... ,_.:··.
