                                 PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                                No. 13-7333


GREGORY BRENT CHRISTIAN,

                 Petitioner - Appellant,

           v.

DAVID BALLARD,

                 Respondent – Appellee,

           and

MARK A. BEZY, Warden, U.S. Penitentiary, Terre Haute; STATE
OF WEST VIRGINIA; DARRELL MCGRAW; TERESA WAID, Warden,
Huttonsville Correctional Center,

                 Respondents.



Appeal from the United States District Court for the Southern
District of West Virginia, at Huntington.  Robert C. Chambers,
District Judge. (3:05-cv-00879)


Argued:   December 9, 2014                       Decided:    July 8, 2015


Before TRAXLER,    Chief   Judge,    and     GREGORY   and   AGEE,   Circuit
Judges.


Affirmed by published opinion.    Chief Judge Traxler wrote the
majority opinion, in which Judge Agee joined.     Judge Gregory
wrote a separate dissenting opinion.
ARGUED: Matthew Nis Leerberg, SMITH MOORE LEATHERWOOD, LLP,
Raleigh, North Carolina, for Appellant.   Elbert Lin, OFFICE OF
THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston, West
Virginia, for Appellee.    ON BRIEF: Patrick Morrisey, Attorney
General, Christopher S. Dodrill, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF WEST VIRGINIA, Charleston,
West Virginia, for Appellee.




                               2
TRAXLER, Chief Judge:

       In    September       2003,    petitioner         Gregory     Brent      Christian

(“Christian”) pled guilty in West Virginia state court to two

counts      of   first-degree        armed    robbery,       and    to   one    count    of

malicious        assault    arising     out       of   his   shooting     of    a    police

officer who was investigating the robberies.                       Pursuant to a plea

agreement, Christian was sentenced to concurrent terms of 25

years imprisonment on the robbery counts, and to a consecutive

term of 3-15 years imprisonment on the malicious assault count.

In addition, the plea agreement allowed Christian to transfer

immediately        into     federal     custody        and   to     serve      his    state

sentences consecutively to the 5-year federal prison sentence

that he had received for possession of a destructive device and

possession of a firearm by a convicted felon.

       In   state    post-conviction          proceedings,         Christian     asserted

that he was innocent of the armed robberies and that, while he

did shoot at the police officer, the officer had instead been

shot   by    another       officer    at   the     scene.      Among     other       things,

Christian claimed that his trial counsel failed to investigate

the crimes and prepare for trial, that the prosecutor withheld

exculpatory evidence, and that his guilty plea was involuntarily

coerced by counsel, the prosecutor, and the conditions of the

state court jail.            Following an evidentiary hearing, the state

court denied relief.

                                              3
       Christian next petitioned the district court for federal

habeas relief under 28 U.S.C. § 2254.                The district court denied

relief but granted a certificate of appealability on the issue

of whether trial counsel had rendered ineffective assistance in

advising    Christian        regarding     the    applicability     of    the       West

Virginia recidivist statute.               Because Christian has failed to

demonstrate that the West Virginia state court’s rejection of

this   claim      resulted     from   an    unreasonable     factual      or    legal

determination, based upon the conflicting evidence presented to

it, we affirm.

                                           I.

       During the late evening and early morning hours of June 3

and 4, 2002, a Pizza Hut restaurant and a Marathon gas station,

located in Huntington, West Virginia, were robbed at gunpoint.

Officer Joe Combs and two other police officers responded to the

robberies and were advised that the suspects might be at the

apartment of Tammy Maynard.              A car matching the description of

the suspect vehicle was parked in front of Maynard’s apartment.

When the officers knocked on Maynard’s door, she assured them

that   no   one   was   inside    and    allowed     them   to   enter.        As    the

officers    entered     the    apartment,        however,   Christian,     who       was

hiding in the shadows of the hallway, began shooting at them.

Officer Combs suffered a gunshot wound to the chest.                      Following

an exchange of gunfire, Christian surrendered.

                                           4
       Gerald     Henderson,    a   public       defender,      was     appointed      to

represent Christian.           Christian admitted to the police that he

shot Officer Combs, but claimed that he thought he was shooting

at “a black drug dealer that [he had] just robbed.”                           J.A. 383.

Christian admitted to Henderson “in their initial interview that

[he] had committed the robberies.”               J.A. 255.

       Henderson    reviewed     the   discovery        provided       by    the    state,

including pictures, an FBI report, Christian’s taped statement,

and the statements of the police officers.                    He also participated

in    several    preliminary     hearings.            Among    other    incriminating

evidence were the statements of Richard Adams, who was also in

Maynard’s residence when Officer Combs was shot, and those of

Maynard.         Adams   confessed     to       the   two     armed    robberies      and

identified Christian as his accomplice.                     Maynard received money

from one of the robberies and believed that Christian knew he

was    shooting     at   a   police    officer.          At     least       one    robbery

eyewitness identified Christian from a photo line-up.                             Although

Christian did not specifically confess to the police that he

robbed the Marathon or Pizza Hut, one of the police officers

stated that Christian later admitted that he “figured it was the

police [coming into the apartment] because [he] had just robbed

a place.”       J.A. 374 (emphasis added).




                                            5
                                              A.

       Christian       and    Adams        were       subsequently        indicted     in       the

Circuit Court of Cabell County, West Virginia, for two counts of

first-degree robbery involving the use of a firearm (Counts I

and II).       See W. Va. Code § 61-2-12(a)(1).                          Christian was also

indicted for malicious assault on a police officer (Count III).

See    W.   Va.     Code      § 61-2-10b(b).                   In    a    separate     federal

indictment, Christian was charged with possession of a Molotov

Cocktail,      in   violation         of    26        U.S.C.    §§   5861(d),       5845,       and

possession of a firearm by a convicted felon, in violation of 18

U.S.C. §§ 922(g)(1), 924(a)(2).

       Under    West    Virginia       law,           first-degree       armed      robbery      is

punishable by a determinate term of imprisonment of not less

than ten years, but “which may be any number of years from ten

to life.”      State ex rel. Faircloth v. Catlett, 267 S.E.2d 736,

737 (W. Va. 1980); see W. Va. Code § 61-2-12(a)(1).                                  Henderson

testified that the maximum penalty that had been upheld by the

West Virginia Supreme Court “was 231 years on one count of armed

robbery” and that “the last three trials here on armed robbery

each   individual       got       between        60     and    80    years.”        J.A.     450.

Malicious      assault       of   a   police           officer      is   punishable        by    an

indeterminate term of imprisonment of “not less than three nor

more than fifteen years.”              W. Va. Code § 61-2-10b(b).                    Good-time

credits     allow   a    prisoner          the        opportunity        to   cut   his     total

                                                  6
sentence in half, but are not applicable to a life sentence.

See W. Va. Code § 28-5-27(c), (d). 1

     Under    West    Virginia’s   recidivist       statute,    a    defendant

convicted of a second felony offense will have five years added

to his determinate sentence.       See W. Va. Code § 61-11-18(a).             If

the court imposes an indeterminate sentence, the minimum term is

doubled.      See id.     A defendant convicted of a third felony

offense     shall    be   sentenced     to   life    in    prison,      without

eligibility for parole for 15 years.           See W. Va. Code §§ 61-11-

18(c),     62-12-13(c).      The      prosecuting    attorney       must    give

information    of    prior   felony     offenses    to    the   trial      court

“immediately upon conviction and before sentence.”               W. Va. Code

§ 61-11-19.     A separate recidivist proceeding is then held, in

which a factual determination must be made, either by admission

or by jury, that the defendant is the same person.              See id.

     As relevant to his sentencing in this case, Christian had

two qualifying felony convictions.           However, because these prior

convictions were returned on the same day, they would only have


     1 “[F]or good conduct in accordance with” West Virginia’s
state statute, inmates “shall be granted one day good time for
each day he or she is incarcerated, including any and all days
in jail awaiting sentence which are credited by the sentencing
court to his or her sentence.”   W. Va. Code § 28-5-27(a), (c).
The good-time credits are “deducted from the maximum term of
indeterminate sentences or from the fixed term of determinate
sentences.” W. Va. Code § 28-5-27(b).



                                       7
counted     as    a    single    felony      for     purposes        of     the    recidivist

statute.     See State ex rel. Hill v. Boles, 143 S.E.2d 467, 468

(W. Va. 1965). 2           Thus, Christian had one strike against him and,

if convicted of the 2002 state charges, he was subject to a

recidivist       information      that       could       have     raised         his   minimum

determinate       sentence      for    one     robbery       to      15    years,      and    his

minimum indeterminate sentence for the malicious assault to 6-15

years.

                                             B.

      In   order      to    properly    evaluate         whether      Christian’s          trial

counsel rendered deficient advice regarding Christian’s exposure

to   an    enhanced        sentence    under       the   West     Virginia         recidivist

statute,     it       is    necessary     to       recount      in        some    detail     the

circumstances          of     counsel’s        representation              and     the       plea

negotiations that took place.

      As noted above, Christian admitted to Henderson in their

initial interview that he committed the armed robberies, for

which he faced unlimited determinate state prison sentences from


      2Christian was convicted in March 1990 of burglary and of
grand larceny, in violation of W. Va. Code § 61-3-11 and § 61-
3-13, respectively.     Christian had also pled guilty to an
additional grand larceny charge in September 1988.    All three
convictions were included as prior felonies in the federal
indictment.   However, the district court below determined that
Christian had been granted state habeas relief from his 1988
conviction and could find no indication that he was retried on
that charge.


                                               8
10 years to life imprisonment, and that he shot Officer Combs,

for which he faced a 3-15 year indeterminate prison sentence,

without     regard        to    any     recidivist        exposure.          In     addition,

Christian      was        facing       federal       prison         sentences       for      his

destructive        device       and    firearm      charges.         Christian      “directed

[Henderson] to engage in plea negotiations from the onset of

counsel’s     representation,”            J.A.       255,     and    this    was     done     in

cooperation with his federal public defender (“FPD”).

      As early as December 2002, Christian was willing to accept

a   25-year    sentence          for    both     robberies,         plus    the    3-15     year

sentence      for       the     malicious      assault,       provided       the     time    he

received    for     the       robberies     was     “concurrent       with    any    time     he

receive[d]         on     his    pending       Federal        charges.”           J.A.      594.

Christian      “suffers         from     Hepatitis        C   and     substantial          liver

damage,” id., and he wanted to serve as much of his time as

possible      in        the    federal    penitentiary,             where    he     felt     the

conditions were better.                 At the time, Christian’s FPD expected

Christian’s        federal       sentence      to    be   188   months.           Under     this

circumstance, Christian would be able to serve most if not all

of his state sentence on the robbery charges in federal prison

(with application of the state good time credits), leaving him

to serve only the 3-15 years on the malicious assault charge in

state prison.            Christian would also be eligible for parole from

the malicious assault conviction in three years, once he began

                                               9
serving that sentence, although counsel acknowledged that there

was a good chance that Christian would not survive that long in

light of his poor health.

      The state prosecutor was willing to consider Christian’s

proposal if Christian supplied proof of his medical problems,

but he would not agree to a concurrent sentencing recommendation

until   Christian    actually     received     his        federal   sentence.

Christian’s FPD also advised Christian that the federal charges

would have to be resolved first to achieve a concurrent sentence

with the state charges, and he “agreed to pay for a physician to

examine Mr. Christian and report on his current condition and

life expectancy.”    J.A. 594.

      Christian pled guilty to the federal charges on February

11,   2003.   On    May   27,   2003,    however,    he    was   unexpectedly

sentenced to a term of only 63 months in federal prison, with a

recommendation that he be medically evaluated for Hepatitis C

and any other serious medical conditions.                  Plea negotiations

continued on the state charges, but it was clear that Christian

would not be able to serve the bulk of his expected state time

in federal prison as he had hoped.

      On July 23, 2003, Henderson advised the prosecutor that

Christian was willing to plead guilty to the malicious assault

count only, provided the 3-15 year sentence ran concurrently

with his federal sentence.         This proposal would have allowed

                                    10
Christian to serve out the bulk of his state sentence on this

single   count        in   federal    prison    first,    and       it    appears    that

Henderson and Christian agreed that it would be best to sever

the officer-shooting charge from the armed robberies, due to its

high-profile nature.

       The    state    prosecutor     responded    with       a    plea   offer     of   40

years on the robberies, concurrent with the federal sentence,

plus    the    consecutive      3-15    years     on    the       malicious   assault.

Christian countered with a request for 30 years on the robberies

instead.       No     mention   was    made    during    these       negotiations        of

Christian’s exposure to a recidivist proceeding or sentence.

       On August 29, 2003, Christian agreed to the terms of the

final plea agreement with the state.                   Under the agreement, the

prosecutor would recommend a 25-year sentence for each robbery,

to be served concurrently with each other and with credit for

the time Christian had already served in the Cabell County jail,

plus 3-15 years for the shooting of Officer Combs, all to be

served after Christian exhausted his 5-year federal sentence.

The prosecutor also agreed to a number of specific conditions

that Christian had requested:

       (1) Christian’s time served in the Cabell County Jail
       would   be   applied   to  the   first-degree  robbery
       sentences, and the malicious assault sentence would be
       served consecutive to it;




                                         11
     (2) Christian    would  be   allowed   to  waive   the
     presentence investigation and be immediately sentenced
     on his plea date;

     (3) The prosecutor and defense counsel would “state
     on the record that [they] both waive this right and
     that it is clearly [Christian’s] desire and in his
     best interests to be returned immediately to Federal
     custody;”

     (4) The    prosecutor  would   immediately “call the
     Federal Marshall . . . and make the necessary
     arrangements” to transfer custody;

     (5) There would “be absolutely no mention[] . . . of
     Mr. Christian’s Hepatitis C condition” by “anyone
     associated with th[e] case;”

     (6) The prosecutor would take steps to have all of
     the court costs waived, in the pending case and any
     others involving Christian, so that Christian “at
     least could apply for a driver’s license” if released;
     and

     (7) There would “BE NO RECIDIVIST”                   filed   against
     Christian after he pled guilty.

J.A. 597, 267.        Under this arrangement, Christian would still be

able to serve his 5-year federal sentence first, and there would

be no delay in his ability to be immediately transferred to

federal    custody.         Upon     his    release   from   federal   prison,

Christian would be eligible for parole from his state sentence

in approximately 11 years.             If parole were denied, Christian

would     be   able    to   exhaust        his   entire   state   sentence   in

approximately 19 years.        Christian was 32 years old at the time.

                                           C.

     On September 2, 2003, Christian arrived in state court to

enter his guilty plea.             At the beginning of the plea hearing,

                                           12
however,       the    trial        court      conveyed    its     understanding       that

Christian had decided to enter a partial plea instead of the

full   plea.         Counsel       then    informed      the    court   that    Christian

“[ha]s changed his mind and has rethought it and he’s decided

it’s the best thing just to go through with the original plea.”

J.A. 265.

       In   the      plea    questionnaire,         Christian     confirmed      that   he

understood the minimum penalty (“10 years”) and maximum penalty

(“unlimited”) for each robbery charge, as well as the mandatory

3-15    year      penalty         for   the    officer     shooting.           J.A.   605.

Christian denied having “me[t] at any time with the prosecutor .

. . concerning [his] plea of guilty when [his] counsel was not

present.”       J.A. 606.          Christian further represented that he was

“satisfied        with      the   representation         [he]   received   from       [his]

lawyer.”     J.A. 268.

       Christian admitted on the record:                        “I robbed a Marathon

station and a Pizza Hut restaurant” with a firearm, J.A. 269,

and “I shot the police officer with the firearm,” J.A. 270.                             The

trial court then explained to Christian the potential recidivist

consequences if he were to go through with the current plea and

commit a third felony in the future:

       Q:   Do you understand that under [West Virginia’s]
       three strikes law, these will count as another strike
       against you, and that in the future if you’re found
       guilty or plead guilty to any felonies, the fact that
       these are on your record could be used to increase

                                               13
     your penalties, and in your case, could give you life
     in prison because it would be strike three.

     A:     Yes, sir.

J.A. 270 (emphasis added).

     When   given     an   opportunity     to   speak   in   support    of    his

request, Christian made the following additional representation:

     I would just like to apologize to the police officer
     for what happened that morning.     I did a drug that
     I’ve never done before in my lifetime.     I did some
     crack cocaine and my life just changed just like that.
     It’s a powerful drug.    I mean, it’s a horrible drug.
     There’s – I don’t use that as no excuse.     I mean, I
     accept the responsibility for what’s happened.   But I
     never done a drug like that before, and just all of a
     sudden I do this drug and out of money and I go rob a
     store and . . . rob a Pizza Hut.

J.A. 274.     Henderson told the court that Christian had also

written a letter to Officer Combs apologizing for these “very

serious and    very     horrible   crimes,”     and   that   they   were   “very

fortunate” that Officer Combs was present to speak to the court.

J.A. 275.     Officer Combs described his investigation and the

shooting    incident,      and     essentially    spoke      in     support    of

Christian’s sentencing request.          He confirmed that Christian had

apologized to him, and also added that Christian had told him

that “he wanted to get involved in a restitution program . . .

in prison.”    J.A. 277.     Officer Combs told Christian, “What I’ll

take from you is the time the Judge is going to sentence you to.

I’ll take that.       And hopefully you can do something productive

with that time.”      J.A. 277.

                                      14
       At   the    conclusion     of    the       hearing,    the   court      sentenced

Christian in accordance with the recommended plea agreement, and

Christian    was    transferred        into       federal    custody     the   following

day, as promised.        He did not appeal.

                                         II.

       Nearly four years later, in July of 2007, Christian filed a

pro se habeas petition in the state circuit court seeking relief

from his state court convictions. 3                   In his petition, Christian

refuted virtually every factual representation that he made at

his   guilty      plea   hearing.       He        claimed    that   he   was   actually

innocent of the crimes and had been coerced into pleading guilty

by    his   counsel,     the    prosecutor,         and     the   conditions     of   his

confinement in the Cabell County Jail.                    With regard to the armed

robberies, Christian claimed “that his identity was mistaken for

someone     else     and       that    the        co-defendant,      Richard     Adams,

wrongfully accused [him of being his accomplice] in exchange for

the police ending a possible homicide investigation against Mr.

Adams.”      J.A. 243.          With regard to the shooting of Officer

Combs, Christian claimed that Officer Combs did not announce

himself at the apartment and that he thought he was shooting at

an intruder (but not, as he admitted having told the police


       3
       Between 2003 and 2007, Christian filed three petitions for
a writ of habeas corpus in the original jurisdiction of the
state supreme court, which were summarily refused.


                                             15
earlier, a drug dealer that he had just robbed).                       In addition,

Christian claimed that the ballistics report would have shown

that Officer Combs was likely shot by his own partner and not by

Christian.

                                       A.

       The majority of Christian’s habeas claims fell into three

categories.      First, Christian alleged that his Sixth Amendment

right to effective assistance of counsel was violated in seven

separate respects, all revolving around his claim that counsel

ignored his claims of innocence, refused to prepare for trial,

refused to file motions on his behalf, and “pressured [him] into

pleading guilty rather than honoring [his] requests for a jury

trial.     Essentially, Christian [claimed that] his guilty plea

was brought about because trial counsel only divulged to [him]

the evidence that tended to prove [his] guilt rather than any

evidence that may have tended to exonerate [him].”                 J.A. 254.

       Second,   Christian       claimed    that    the    prosecutor        withheld

favorable     evidence    that    would     have   supported      his    claims    of

innocence,    including     the    ballistics      evidence     that    he    claimed

might have exonerated him from the shooting of Officer Combs.

In an amended petition, Christian additionally claimed, again

contrary to the representation he made at the time of his plea,

that   when   the   state    prosecutor      learned      of   Christian’s      last-

minute decision to reject the plea agreement and to plead guilty

                                       16
to just the malicious assault charge on the morning of his plea,

the     prosecutor      improperly     approached         Christian    outside     the

presence    of    his    counsel     about    his   decision.         Specifically,

Christian claimed:

       the state’s prosecutor approached the petitioner
       without the presence of his counsel and stated “this
       is a shocker, are you sure you know what you[’re]
       doing?”.   The petitioner responded “can you get my
       attorney?”. The petitioner believes that the exchange
       triggered a chain reaction, which led the petitioner
       to plead guilty to all counts of the indictment. . . .

       Counsel   then   informed   the   petitioner   that the
       prosecution    would   seek    enhancement   under  the
       Recidivist Statute if the petitioner persisted with
       pleading   guilty   to  [the    single  count]   of the
       indictment. As a result of the prosecutor’s position,
       the petitioner pled guilty to all three counts of the
       indictment with the prosecutor agreeing not to request
       that recidivist proceedings be pursued against the
       petitioner.

J.A. 209 (emphasis added); see also S.J.A. 12 (alleging that

“the    Prosecutor      threatened     that    he     would     pursue    recidivist

proceedings      against     Petitioner      (interpreted       by    Petitioner    as

meaning a life sentence), if he elected to plead to only count

III, rather than all counts”); S.J.A. 13 (alleging “that the

prosecution used the threat of recidivist proceedings to inspire

Mr. Christian’s guilty plea”).

       Finally,      Christian     claimed     that       his   guilty     plea    was

involuntarily coerced by the conditions at the Cabell County

Jail.      Christian      alleged     that    he    was    subjected      to   ongoing

“beatings    and     death   threats,”       and    that    counsel      ignored   his

                                         17
requests        to    file     a    motion     for    alternative           confinement          and

“exploited [this abuse] to compel him to plead guilty.”                                         J.A.

182.       According to Christian, his counsel “negotiated a plea

agreement       to    where,       upon    pleading       guilty      to    all    counts,       Mr.

Christian        would       immediately       be     sentenced         and       expeditiously

removed     from      the    Cabell       County     Jail    (from      the       reach   of     his

assailants) and relocated to a federal facility,” J.A. 182, and

“often indicated that [Christian] could quickly escape the life

threatening danger that overshadowed him at the Cabell County

Jail,      if   he    would    only       plead    guilty        to   all    of    the    charged

violations,” J.A. 182.                   Christian similarly alleged that “[o]n

the [day of his plea], Counsel . . . vigorously emphasized that

unless Mr. Christian pled guilty to all counts, he would not

receive the plea agreement, and would therefore remain at the

Cabell County Jail.”               J.A. 183.

       Christian         did       not    allege     an     ineffective-assistance-of-

counsel claim based on counsel’s advice as to the applicability

of   the    recidivist         statute.        However,      in       connection         with   his

involuntary          plea    claim,       Christian       made    the      following      pro     se

allegation:

            In contrast to the ballistics laboratory report .
       . ., Counsel coer[c]ed Mr. Christian into believing
       that a jury trial would be utterly hopeless on the
       shooting  incident.     Counsel   thereafter  slovenly
       advised Mr. Christian that if he pled guilty to only
       the shooting incident, there would be no plea
       agreement, and that the Prosecution would seek a

                                               18
       sentence in accordance with West Virginia’s recidivist
       laws, [interpreted by Mr. Christian as meaning a
       mandatory life sentence].     However, after pleading
       guilty Mr. Christian learned that West Virginia’s
       recidivist laws could not have lawfully applied to
       him.

J.A.    183       (emphasis   added).         After   state     habeas   counsel   was

appointed to represent Christian, an amended petition was filed

on     his        behalf.     Although        the     amended     petition    refined

Christian’s claims that counsel was constitutionally deficient

in   numerous        respects,   it    also    did    not   allege   that    counsel’s

recidivist advice was constitutionally deficient or that, but

for this advice, Christian would not have pled guilty.                             With

regard       to    the   involuntary    plea     claim,     the   amended     petition

stated as follows:

       The petitioner further avers that his lawyer coerced
       him into believing that a jury trial would be utterly
       hopeless regarding the charge of maliciously wounding
       a police officer.   His counsel advised the petitioner
       that if he pled guilty to only the shooting incident
       there w[ould] be no plea agreement and that the
       prosecution would then seek a sentence under West
       Virginia’s recidivist laws.    Trial counsel made the
       petitioner believe that the plea agreement was in the
       petitioner’s best interest even though the agreement
       required the petitioner to plead guilty to all counts
       of the indictment.    The petitioner asserts that his
       lawyer emphasized that unless the petitioner pled
       guilty to all counts, the petitioner would then remain
       at the horrid conditions of Cabell County Jail.

J.A. 210.          Thus, the amended petition repeated Christian’s prior

pro se claim that counsel “coerced him into believing” that he

could not defeat the officer-shooting charge, but did not allege



                                          19
that       counsel’s     recidivist           advice        was      incorrect         or

constitutionally       deficient.        Moreover,      the       amended     petition

omitted Christian’s prior pro se claim that he “interpreted”

counsel’s statement about the prosecutor’s intent as “meaning a

mandatory life sentence,” as well as his incorrect assertion

that “West Virginia’s recidivist laws could not have lawfully

applied to him.”       J.A. 183.

                                         B.

       On November 30, 2010, the state habeas court conducted an

omnibus evidentiary hearing to address Christian’s claims.                           Both

Henderson     and    Christian     testified      at   the        hearing    and     gave

markedly     different        accounts    of     the    events        in     question.

Ultimately, the state court denied Christian’s habeas petition

in its entirety, based primarily on credibility determinations

and a failure of factual proof. 4

       The bulk of Christian’s testimony revolved around his claim

that he was innocent, that he told counsel that he was innocent,

and that he told counsel that he did not think he actually shot

Officer     Combs.       He    testified       that    he    begged        counsel    to

       4
       During state post-conviction proceedings, Christian was
intermittently appointed counsel and allowed to proceed pro se,
at his request.    Ultimately, the state court appointed state
habeas counsel to act as co-counsel with Christian at the
evidentiary hearing.    Under the odd arrangement, Christian’s
habeas counsel questioned Christian, and Christian was allowed
to personally question Henderson.



                                         20
investigate the crimes and file motions on his behalf, but that

counsel    refused   to   do   so    and    pressured   him   to   plead     guilty

instead.    According to Christian:

     [counsel] would come in and tell me all the negative,
     you know, you’ve got to, you know, you’re caught red-
     handed with a smoking gun, you’ve got people that
     identified you out of a photo lineup, you got Adams
     who has implicated you, you’ve got Sergeant Johnson
     who has testified to this, and he would mention things
     like you’re going to get 100 years in prison.      And
     quite frankly, I know as odd as this may sound, I told
     him that I did not care if I got 2 or 300 years, I
     wanted a trial.

J.A. 563; see also J.A. 548 (“I remember one time him yelling,

You’re going to get 100 years in prison just for one robbery

like the other guy did.          And . . . I looked at him and I said, I

do not care if I get 300 years in prison, I want a trial.”).

     Christian testified that he “lied to the court” at the plea

hearing and that “[w]ithin a few hours . . . of entering the

plea,” he regretted the decision and unsuccessfully attempted to

contact counsel to see if “the judge would have allowed [him] to

withdraw it.”        J.A. 569.       He testified that he had “buyer’s

remorse”    and   felt    that      “it     just   wasn’t   the    package    [he]

bargained for.”      J.A. 555.       However, Christian admitted that it

was not the state court bargain that he failed to realize, but

rather the benefits of the plea to the federal charges that

“didn’t pan out” as he had hoped.                  J.A. 566.       According to

Christian, he felt “tricked” into pleading guilty to the federal


                                           21
counts on the promise that his state sentence would “run with

this mandatory time . . . in federal court.”                    J.A. 558.       After

he    pled   guilty    to   the   federal    charges,    however,      his    federal

sentence “plummet[ed] down to 63 months.”                J.A. 559.       Christian

testified that, “I agreed to a plea because I thought I was

facing a     mandatory      federal   sentence,    and    of    course       later    we

found it was less than we thought, but at the time it was my

request that [counsel] conduct . . . the investigations, file

the    motions   and    continuously    prepare    my    case    for    trial,       and

that’s just something he wasn’t willing to do.”                 J.A. 553.

       In sum, while Christian did obtain the benefit of serving

his federal time first, he complained that he did not get enough

time in federal prison and had counted on more when he entered

his guilty plea to the federal charges.                  And Christian thought

“that it should have been only fair that that 40 years was ran

concurrent being that I moved to my detriment and pled . . . to

the federal counts as they had asked me to do.”                 J.A. 560.

       With regard to Christian’s allegations regarding the state

prosecutor’s “threat” of recidivist proceedings on the morning

of his plea, and counsel’s alleged advice in response thereto,

Christian briefly testified as follows:

       Q:   At the time you pled, did you believe you were
       eligible for [a] recidivist life sentence?

       A:    Absolutely, yes.


                                        22
     Q:    That was based on Mr. Henderson advising you of
     that?

     A:   Absolutely.  We discussed it right there in that
     room. He told me, . . . Greg, you’re going to walk in
     that courtroom and you’re going to plead guilty to
     malicious assault on a police officer.     You’ve got
     them two prior felonies. He said, Hate to be the one
     to tell you, but what they’re going to do – you’re
     entering this guilty plea.   It wasn’t a plea, I was
     just pleading outright. I was just trying to get rid
     of that charge, that was the idea.   It wasn’t a plea
     agreement or an arrangement. I’m going to walk in and
     just plead guilty to this malicious assault, let them
     have that so I can go to trial on the robberies I did
     not commit.

          And that’s when . . . he left and comes back and
     said, I’ve got some bad news.     And that’s when he
     describes to me what would happen if I did just plead
     to the malicious assault, and we had some concerns
     about that.

          Matter of fact, even with that, though, even with
     that I was still not going to – I still did not
     waiver.   What happened was he left, [the prosecutor]
     come in there and he said, You sure you know what
     you’re doing.    And then after that [the prosecutor]
     went and got Henderson and they both come back, and
     when they come back that’s when the deal was re-
     brokered back into the original thing.

J.A. 553-54 (emphasis added).

     Henderson   had   little   memory   of   the   specifics   of   his

representation of Christian, which by that time had occurred

over seven years prior, but he was able to testify in part from

his case files and the plea negotiation letters.         See J.A. 391

(“I can’t recall any specific conversations.”); J.A. 392 (“I

can’t recall a specific conversation that many years ago.”).




                                  23
       Henderson testified that Christian admitted his guilt from

the outset, as reflected in his initial interview notes, and

that Christian did not tell him that he “felt as if none of

[his] rounds had struck Officer Combs.”               J.A. 514.     He testified

that Christian also instructed him to negotiate a plea deal from

the outset, with the goal of allowing him to serve as much of

his state time as possible in the federal penitentiary, where

Christian felt the conditions were better.                     Henderson denied

that Christian told him that he was being subjected to ongoing

abuse   at   the   hands    of    his   jailers,     and     testified    that    he

“wouldn’t have told [Christian] to plead simply to escape” the

“conditions of [his] confinement.”           J.A. 479.

       Henderson    was    also    unable    to     recall    the   events      that

occurred on the morning of Christian’s plea hearing, nor did he

even    recall     Christian      changing    his     mind     about     the    plea

agreement.       See J.A. 454 (testimony that “if you were thinking

about changing your mind [about the plea], I would have said,

Well, the judge wants to know what you want to do and either way

is fine,” but “I don’t recall it; it was eight years ago.”).

Henderson    likewise      did    not    recall      the     specifics     of    any

discussions about the prosecutor’s intent to file a recidivist

information if Christian rejected the plea agreement.                    Henderson

testified as follows:



                                        24
Q:   Okay. Now, when I was positioned to plead guilty
to just the malicious assault charge, . . . did you
not . . . say to me, Greg, you have two prior
felonies, that if you plead guilty to this charge then
the   state  will  implement   recidivist  proceedings
against me?

A:   I note in the letter that I made reference to
recidivist, and I know you advised me you had two
prior felonies. And . . . I know I put in the final
offer to [the prosecutor] there will be no recidivist.
But my recollection, when I asked your record, do you
have any prior felonies, that you advised me you had
two.

Q:   Right. . . . That was in the original plea where
it was presumed I would plead to all three counts the
week before, there would be no recidivist filed.

A:   Correct.

Q:   But when we got to court and . . . I changed
everything and went to enter just the malicious
assault, did you advise me that, Greg, hey, if you do
that, . . . the state will pursue recidivist
proceedings against you . . . because you’ve got two
prior felonies, do you recall that?

A:   Yeah.   Now, I would have told you, yes, if you
enter a plea to a felony with no agreement that the
state won’t recidivist, then they have every right to
file their recidivist petition.

Q:   Right. And . . I ended up taking the other plea
instead because if I had pled to the one count of the
malicious assault with the two prior felonies, . . .
the state would have moved, the way we understood it
at the time, would move for a life sentence in prison;
correct?

A:   If you have two prior independent felonies . . .,
then, yes, they can file a recidivist. And if you had
told me you had two prior, I would have explained to
you doing a blanket plea without an agreement, they
would have that right.




                          25
Q:   And do you recall that? You said, Hey, if you do
that, you’re going to receive, the state will pursue
recidivist proceedings; correct?

A:   I don’t recall what I told you, but I would have
in every other case told my client if they had two
priors that could be used, then the state could do a
recidivist, and under West Virginia two usable priors
would result in a life without eligibility for 15
years.

Q:   Okay. . . . [A]fter that exchange, was that not
when we said . . . it would not be a good move for me
to plead just to one count, that I should take the
whole deal and plead to the 40 years, the way it ended
up happening; is that correct?

A:   No, I would have told you that pleading to one
count, if you have two usable felonies, which you told
me, then of course that’s not in your best interest
for them to give you life without eligibility if they
can prove those priors. . . .     That being the case.
Now, in a different situation it might be different.

Q:   . . . .    If we just entered a plea to the one
count, then the state would pursue the recidivist
proceedings, and you’re exposing yourself to life,
that’s the way we understood it; correct?

A:   I . . . would have explained to you that you
understand that if you enter a plea to this charge and
you have two felonies, as you told me you did, that
they could file a petition, and if they prove those
felonies that are usable felonies under law, that you
could get life without eligibility for 15 years.     I
would have advised you of that.

Q: . . . . Are you now aware . . . those two prior
felonies need to be like in . . . a separate
indictment or a separate occurrence?

A:   . . . .   You can’t have a guilty finding on two
felonies on the same day, same time and that count as
two. That would only be one felony. . . .

Q:   Are you now aware that my two prior felonies were
contained in one single indictment, that I never could
have been exposed actually to a life sentence?

                          26
       A:   I saw something in one of your pleadings, but I
       was unaware that there were separate at the time.
       When I asked you do you have a prior felony, you said
       you had two felonies.

J.A. 515-20 (emphasis added).

                                                 C.

       The state habeas court denied Christian’s petition in its

entirety.           The        court    found   that    Christian         told    Henderson         in

their initial interview that he had committed the robberies and

shot    Officer          Combs,    which    was     supported        by   “[n]otes          made    by

trial    counsel          contemporaneous         with      the     interview      and       entered

into the files of the Public Defender’s office.”                                 J.A. 255.         The

state    court           also    found    that    Christian         “directed         counsel       to

engage        in     plea       negotiations        from     the     onset       of        counsel’s

representation.”                 J.A.    255.     The       court    rejected         Christian’s

claim     that            counsel’s        investigation            was     constitutionally

deficient, as well as his claims that the prosecutor suppressed

exculpatory evidence and engaged in prejudicial misconduct by

speaking to Christian outside the presence of his counsel on the

day of his plea.

       The state court also rejected Christian’s claim that his

guilty    plea           was    coerced    by    his   alleged       mistreatment            at    the

Cabell County jail, noting that there were “[n]o photographs, no

medical records, and no affidavits of witnesses . . . attached,

nor     was        any     evidence       adduced      at    the     hearing          to    support


                                                 27
[Christian’s] claims of beatings and threats (other than [his

own] testimony to this effect).”                   J.A. 247.

       Finally, the state court rejected Christian’s claims that

he was pressured by counsel to take the plea because Christian

“could not articulate any specific factor of pressure that had

its    origins     in   the     words   or     testimony        of      [his    state    trial]

counsel     [and     he]      did    not      state      with      even     a    modicum       of

specificity any instance where counsel pressured [him] to enter

into   a   plea.”        J.A.    257.        The    state     court       also    found       that

Christian       failed     to    “establish         by    a     preponderance           of    the

evidence that his trial counsel acted incompetently, . . . or

that    [his]     guilty      plea    was     motivated       by     an    alleged      act    of

counsel’s incompetency.”              J.A. 249.

                                              D.

       Christian thereafter filed a pro se appeal from the denial

of    habeas     relief    to    the    Supreme       Court        of     Appeals    of       West

Virginia (“the West Virginia Supreme Court”).                              In this appeal,

Christian raised for the first time an ineffective-assistance-

of-counsel claim based upon trial counsel’s alleged misadvice as

to his recidivist exposure.

       Relying     primarily         upon    Henderson’s           testimony,       Christian

argued     that    he     had    told       Henderson     that       he    had    two        prior

felonies, but that counsel “made no additional inquiries into

the circumstances of [Christian’s] prior felonies.”                               S.J.A. 24.

                                              28
Christian     additionally           argued   that,    on     the    day    of    the     plea,

“counsel notified [him] that the State would seek to enhance his

sentence     under       the   recidivist        statute      if    he     persisted       with

pleading to count-3 only,” and that he “interpreted counsel’s

assertion as meaning ‘a mandatory life sentence.’”                                S.J.A. 24

(emphasis     added).          The    supreme       court   summarily          affirmed     the

decision of the state circuit court.

       The   district      court      thereafter       denied       Christian’s      pro     se

federal habeas petition, which raised the identical claims that

counsel did not inquire into the circumstances of Christian’s

prior felony record and that Christian “interpreted counsel’s

assertion      as    meaning      ‘mandatory         life     sentence.’”           J.A.    83

(emphasis      added).           Before       the     district        court,       Christian

additionally argued that his “counsel effectively advised him

that he would receive a ‘life’ sentence if he persisted with

only   pleading      to    the       malicious      assault       charge,       without    any

reference to a 5-year enhancement under W. Va. Code § 61-11-

18(a).”      J.A. 709 (emphasis in original).                       The district court

held that “it was not constitutionally deficient representation

for    counsel      to    choose       not    to    investigate          the     details    of

Christian’s      prior     felony      convictions,         and    instead       concentrate

his efforts on negotiating a plea in which the State would not

seek    a    recidivist        enhancement.”           J.A.       752.         However,    the

district court granted a certificate of appealability on the

                                              29
limited     issue      of    “whether       counsel        rendered      ineffective

assistance in advising Christian of the applicability of the

West Virginia recidivist law to his case.”                  J.A. 763.

                                          III.

      Before we address the merits of Christian’s Sixth Amendment

recidivist-advice       claim,       we    briefly        consider     the     state’s

argument that Christian failed to exhaust this claim in state

court under 28 U.S.C. § 2254(b)(1)(A) because he did not fairly

present the operative facts and controlling legal principles to

the state circuit court.          See Anderson v. Harless, 459 U.S. 4, 6

(1982); Longworth v. Ozmint, 377 F.3d 437, 448 (4th Cir. 2004).

The state admits that Christian raised the claim in his appeal

to the West Virginia Supreme Court but contends that this too

was     insufficient    because      that        court     routinely     refuses      to

consider grounds       for     habeas     relief    that    were     raised    for    the

first time on appeal.          See State ex rel. Wine v. Bordenkircher,

230 S.E.2d 747, 751 (W. Va. 1976).

      While it is true that Christian did not raise a separate

Sixth    Amendment     claim    in   the    state        circuit   court      based   on

counsel’s    recidivist        advice,     or     allege     there     that    it     was

counsel’s recidivist advice that rendered his plea involuntary,

he did present testimony about the recidivist discussions that

he alleges took place on the morning of his plea.                       See State ex

rel. Humphries v. McBride, 647 S.E.2d 798, 803 (W. Va. 2007)

                                           30
(per    curiam).         More      importantly,         however,     the    West    Virginia

Supreme     Court       stated     that     it    had     “carefully       considered       the

merits of each of petitioner’s arguments as set forth in his

brief and in his reply brief” and “f[ound] no error in the

denial     of     habeas    corpus         relief.”        J.A.    240.      Although        we

understand        the   state’s       frustration         with    Christian’s       evolving

allegations, we have no reason to believe that the West Virginia

Supreme Court did not mean what it said.                          Accordingly, we find

that Christian exhausted his claim before the state court.

                                              IV.

                                                 A.

       Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), we may grant habeas relief only when a state

court’s adjudication of a claim on the merits “resulted in a

decision” that (1) “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined

by   the    Supreme        Court      of    the       United    States,”    28     U.S.C.    §

2254(d)(1), or (2) “was based on an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding,” 28 U.S.C. § 2254(d)(2); see also Harrington

v. Richter, 562 U.S. 86, 100 (2011).                      The AEDPA standard “serves

important       interests        of     federalism        and     comity”    and    it    “is

intentionally difficult to meet.”                       Woods v. Donald, 135 S. Ct.

1372,      1376    (2015)        (per      curiam)       (internal     quotation         marks

                                                 31
omitted).         To    obtain      relief       “from    a    federal      court,    a    state

prisoner must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification

that   there      was    an   error       well    understood         and    comprehended      in

existing         law      beyond          any         possibility          for      fairminded

disagreement.”          Harrington, 562 U.S. at 103.

       To   prevail      on   his        Sixth    Amendment         claim   of   ineffective

assistance of counsel, Christian was required to show that (1)

his counsel’s performance “fell below an objective standard of

reasonableness”          measured         by    “prevailing         professional      norms,”

Strickland v. Washington, 466 U.S. 668, 688 (1984), and that

counsel’s “deficient performance prejudiced” him, id. at 687.

The court must “evaluate the conduct from counsel’s perspective

at the time,” id. at 689, and “apply a strong presumption that

counsel’s representation was within the wide range of reasonable

professional assistance,” Harrington, 562 U.S. at 104 (internal

quotation marks omitted), in order “to eliminate the distorting

effects of hindsight,” Strickland, 466 U.S. at 689.                                       In all

cases, the petitioner’s “burden is to show that counsel made

errors      so   serious      that       counsel       was    not    functioning       as    the

‘counsel’        guaranteed        the    defendant       by    the    Sixth     Amendment.”

Harrington, 562 U.S. at 104 (internal quotation marks omitted).

To show prejudice in the guilty-plea context, the petitioner

must     “demonstrate         ‘a    reasonable           probability        that,    but     for

                                                 32
counsel’s errors, he would not have pleaded guilty and would

have insisted on going to trial.’”                     Premo v. Moore, 562 U.S.

115,    129       (2011)   (quoting    Hill     v.    Lockhart,    474   U.S.    52,    59

(1985)).

       Even without § 2254’s deference, the Strickland standard

“is    a   most     deferential      one.”         Harrington,    562    U.S.    at   105.

“Unlike       a    later   reviewing        court,    the   attorney     observed      the

relevant proceedings, knew of materials outside the record, and

interacted with the client, with opposing counsel, and with the

judge” and “[i]t is all too tempting to second-guess counsel’s

assistance after conviction or adverse sentence.”                        Id. (internal

quotation          marks    omitted).          When     Strickland’s       deferential

standard      for     evaluating      the    Sixth    Amendment    claim    is    viewed

under the extra layer of deference that § 2254 demands, the

“review must be doubly deferential in order to afford both the

state court and the defense attorney the benefit of the doubt.”

Woods, 135 S. Ct. at 1376 (emphasis added) (internal quotation

marks omitted).            “[F]ederal judges are required to afford state

courts     due      respect     by   overturning      their   decisions     only      when

there could be no reasonable dispute that they were wrong.”                           Id.

       Moreover, “special difficulties” arise when federal judges

are    called       upon   to   evaluate      trial    counsel’s    actions      in    the

context of a state court guilty plea, where “the record . . . is

never as full as it is after a trial,” and “the potential for

                                              33
the distortions and imbalance that can inhere in a hindsight

perspective may become all too real.”                    Premo, 562 U.S. at 125.

       “[T]he guilty plea and the often concomitant plea bargain

are    important      components      of     this       country’s    criminal    justice

system,” Blackledge v. Allison, 431 U.S. 63, 71 (1977), and the

advantages that they provide to all concerned “can be secured .

. . only if dispositions by guilty plea are accorded a great

measure of finality.”           Id.     “[R]epresentations of the defendant,

his lawyer, and the prosecutor at such a hearing, as well as any

findings   made    by     the   judge      accepting       the   plea,    constitute    a

formidable      barrier    in   any    subsequent          collateral     proceedings.”

Id. at 73-74.      Such “[s]olemn declarations in open court carry a

strong presumption of verity” and “subsequent presentation of

conclusory allegations unsupported by specifics is subject to

summary dismissal, as are contentions that in the face of the

record are wholly incredible.”               Id. at 74.          “More often than not

a    prisoner   has    everything       to    gain      and   nothing    to    lose   from

filing a collateral attack upon his guilty plea,” because “[i]f

he succeeds in vacating the judgment of conviction, retrial may

be    difficult.”          Blackledge,            431     U.S.      at   71.      “These

considerations make strict adherence to the Strickland standard

all the more essential when reviewing the choices an attorney

made at the plea bargain stage.”                  Premo, 562 U.S. at 125.



                                             34
                                          B.

     Finally,       a    determination      of   whether       the     West    Virginia

Supreme Court’s rejection of Christian’s recidivist-advice claim

“resulted   from        an   unreasonable      legal    or     factual       conclusion”

beyond any fairminded disagreement “does not require that there

be an opinion from the state court explaining the state court’s

reasoning.”         Harrington,    562    U.S.    at    98.      Where       the   “state

court’s decision is unaccompanied by an explanation, the habeas

petitioner’s burden still must be met by showing there was no

reasonable basis for the state court to deny relief.”                          Id.   And

before we can overcome the formidable barriers to relief and

upset the finality of a guilty plea, we “must determine what

arguments     or     theories     supported      or,     as     here,     could      have

supported, the state court’s decision; and then [we] must ask

whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in

a prior decision of [the Supreme] Court.”                Id. at 786.

     Because the state supreme court did not specify whether it

rejected    Christian’s        claim   “because        there    was     no    deficient

performance        under     Strickland     or    because       [he]     suffered     no

Strickland prejudice, or both,”                  Premo, 562 U.S. at 123, we

cannot “overcome the limitation imposed by § 2254(d)” unless

“both findings would have involved an unreasonable application

of clearly established federal law as determined by the Supreme

                                          35
Court, id. (emphasis added), or “an unreasonable determination

of the facts in light of the evidence presented in the State

court proceeding,” 28 U.S.C. § 2254(d).

                                     V.

     In order to properly determine whether the West Virginia

state court’s rejection of Christian’s recidivist-advice claim

“resulted    from   an   unreasonable     legal    or     factual    conclusion,”

Harrington, 562 U.S. 98, we must first define the claim -- a

task that has been made unusually difficult here by the evolving

nature of Christian’s claim as he has progressed through the

state and federal post-conviction process.

     On appeal to this court, Christian argues that the state

court’s rejection of his recidivist-advice claim was “contrary

to   or     involved     an   unreasonable      application         of,   clearly

established Federal law, as determined by the Supreme Court” in

Rompilla v. Beard, 545 U.S. 374 (2005).              The factual premise of

this claim, however, is Christian’s new assertion that trial

counsel   failed    to    investigate     his     prior    felony    record    and

incorrectly “advised Christian that, if convicted of any one of

the three counts against him, Christian would be sentenced to

mandatory    life   in   prison   without    eligibility       for    parole   for

fifteen years.”        Appellant’s Brief at 6 (emphasis added); id. at

17 (asserting that on the morning of the plea, when Christian

“had second thoughts” about the plea agreement, “[h]is counsel

                                     36
again advised him that pleading guilty to even one of the counts

would   subject      him      to    a    mandatory         life    sentence”)           (emphasis

added).

      This argument was not made to the state court.                                    Christian

did not allege or argue that trial counsel incorrectly advised

him   that   he    would      be    sentenced        to    mandatory        life    in     prison

without   eligibility         for       parole      for    fifteen     years       if    he   were

convicted of any of the three counts pending against him.                                     Nor

did   Christian     or     Henderson       testify         to   this   effect.            Rather,

Christian alleged only that, on the morning of his plea, when he

expressed a desire to plead guilty to just the malicious assault

charge, counsel told him that the state prosecutor could “seek a

sentence in accordance with West Virginia’s recidivist laws.”

Christian represented that he “interpreted [this] as meaning a

mandatory life sentence,” but nothing in the record supports the

conclusion        that     Christian        ever          communicated       this         alleged

“interpretation”         to     Henderson.            J.A.      183    (emphasis         added);

S.J.A. 24.        At best, Christian only summarily testified that he

“believed” he was subject to a recidivist life sentence, based

upon counsel’s advice, but provided no specifics in support.

      Consequently,        we      do    not     consider         whether    trial       counsel

would have been constitutionally deficient if he had incorrectly

advised Christian that he would be sentenced to mandatory life

in prison if he pled guilty or was convicted of any of the three

                                               37
charges pending against him.                    Rather, we only consider whether

the state court’s rejection of the claim Christian presented to

it represents an unreasonable interpretation of the facts, based

on the evidence presented to it, and an unreasonable application

of     the    “clearly     established”              principles      of    Strickland       and

Rompilla, “beyond any possibility for fairminded disagreement.”

Harrington, 562 U.S. at 103.                We have no trouble concluding that

it was neither.

                                                A.

       In     Strickland,      the    Supreme             Court    held    that    competent

counsel “has a duty to make reasonable investigations or to make

a    reasonable      decision        that       makes       particular      investigations

unnecessary.”        466 U.S. at 691.                In Rompilla, the Court applied

this requirement in the context of defense counsel’s failure to

examine       Rompilla’s    prior      conviction           file    in    advance      of   the

death-penalty phase of his capital trial.                               See Rompilla, 545

U.S. at 383.          The Supreme Court held that defense counsel’s

failure to do so was deficient performance because counsel knew

that    the    prosecution     “intended             to   seek    the    death    penalty    by

proving       that   Rompilla    had        a    significant         history      of   felony

convictions.”        Id.

                                                1.

       Christian      argues    that        because         Henderson      knew    that     the

prosecution could rely upon Christian’s prior felony record to

                                                38
pursue a recidivist sentence against him if he were convicted,

Rompilla clearly established a duty upon his counsel from the

outset to investigate his felony record.              We disagree.

      Neither Strickland nor Rompilla clearly establishes a duty

upon counsel to investigate a defendant’s prior felony record

during    the    course   of   plea    negotiations,      regardless      of    the

circumstances.        On the contrary, “[i]n any ineffectiveness case,

a   particular     decision    not    to    investigate    must    be    directly

assessed for reasonableness in all the circumstances, applying a

heavy measure of deference to counsel’s judgments.”                   Strickland,

466 U.S. at 691.

      The circumstances in Rompilla at the time of Rompilla’s

death-penalty         trial    are     markedly       different       from      the

circumstances present at the time of Christian’s guilty plea.

Christian told his counsel from the outset that he was guilty of

the offenses and instructed him to negotiate a plea agreement

that would allow him to serve as much of his expected state

prison    time   as   possible   concurrently     with    his     federal      time.

Christian never went to trial, no recidivist information was

filed against him, and no recidivist proceedings were held.

      Even if we were to extend Rompilla to circumstances where

counsel    grossly     misinforms     his    client    about    his    sentencing

exposure, and negotiates and recommends a plea deal based upon

the error, this too is not the situation at hand.                     Cf. United

                                       39
States       v.    Lewis,       477     Fed.      Appx.        79,    82     (4th    Cir.        2012)

(unpublished)            (finding          deficient        performance          where     it     was

undisputed         that       counsel       “gave      legal     advice      predicated          on   a

plainly false interpretation of federal law” pertaining to the

defendant’s             prior        felony           convictions,           and        “gross[ly]

misinform[ed]” him that that “he would receive a mandatory life

sentence” if he rejected the plea agreement and was convicted)

(quoting Ostrander v. Green, 46 F.3d 347, 355 (4th Cir. 1995)).

       As noted above, the record belies Christian’s new claim

that counsel affirmatively misadvised him that he would receive

a mandatory recidivist life sentence if he were convicted of any

of    the    three       felonies.           Nothing        in   the       record    supports         a

conclusion         that       any     part       of    Henderson’s         interactions           with

Christian, the prosecutor, or the state court were based in any

way    on    a    belief       that     a    mandatory         life    sentence         under     the

recidivist statute was involved in this case.                                On the contrary,

Christian’s            exposure       to     a    recidivist          enhancement          was    not

mentioned         in    the    plea     negotiation         letters        and    the    suggested

sentencing         scenarios         were    at       all   times     well    below      the      non-

recidivist        sentences          that    counsel        testified       had     been    imposed

following trials in similar cases.                          It appears that during the

negotiations between the prosecutor and defense counsel, the use

of the recidivism statute was taken off the table, so to speak.

It    also    appears         that    the     overriding         concern      was    Christian’s

                                                  40
desire to go to federal prison first and serve as much of his

time there as possible.

     To    the   extent   that   Christian      relies    upon   the    fact    that

counsel specified in the final plea letter that “NO RECIDIVIST”

information would be filed, this too does not compel a finding

that the plea negotiations were premised upon counsel’s belief

that Christian actually faced a recidivist life sentence.

     It is undisputed that Christian was subject to having a

recidivist information filed against him based upon his prior

felony    convictions,     and   any    recidivist     proceeding      would    have

postponed Christian’s primary goal of transferring immediately

into federal custody.         Fully consistent with the record in this

case,     Christian   could      have    been   subject     to    a    recidivist

enhancement under the applicable West Virginia statute because

it is undisputed that his prior felony conviction would have

made his convictions on any of the pending charges a second

felony    offense.        This   point    was   made     explicitly     clear    to

Christian by the state court judge prior to engaging in the

guilty plea proceeding as more fully discussed below.                   Thus, the

determinant sentence of ten years on the robbery convictions

could be increased by five years or the indeterminate sentence

for the malicious assault of a police officer could be doubled.

It is entirely reasonable to conclude any effort by Henderson to

eliminate a recidivist enhancement through the plea agreement

                                         41
was based on the uncontested fact that Christian could have been

subject       to        the     foregoing          five-year       or    double-sentence

enhancements in any event.                   Even if we were to assume Henderson

made a cognizable error in failing to investigate Christian’s

prior     felonies            for     purposes      of    the      three-strike          felony

enhancement, he would have still needed to negotiate the same

“no recidivist” covenant in order to eliminate the second felony

enhancement: a factor in which Christian expressed no interest

and chooses to ignore on appeal.

      Moreover,          the        state    prosecutor        would    not       have     been

precluded     from        filing      such    an    information,        even   though       the

guilty plea was to be entered pursuant to a plea agreement that

set   forth       the    applicable         non-recidivist      sentence,       unless      the

prosecutor expressly agreed “to waive a recidivist action in

exchange      for       petitioner’s          plea,”      or    the     defendant        could

thereafter show that the state “led him to believe that it would

not   file    a    recidivist         information        against    him.”         Gardner    v.

Ballard, 2014 WL 5546202, *2 (W. Va. 2014) (unpublished).                                Thus,

the   state       court       could    have    reasonably       found    that      counsel’s

insistence        on    the     no-recidivist       term    reflected       not    deficient

performance at all, but rather his good efforts to ensure that

his client was not subjected to a separate recidivist two-strike

enhancement under § 61-11-18(a) after he pled guilty, or to the



                                               42
accompanying delay a recidivist proceeding would have had upon

Christian’s ability to quickly transfer into federal custody.

        Accordingly,        the    state        court        could       have    reasonably

concluded       that       it      was        not     constitutionally             deficient

representation       for    counsel      to     choose       not   to     investigate       the

details    of   Christian’s        prior       felony    convictions,           and   instead

concentrate     on     negotiating        a    reasonable,         non-recidivist          plea

agreement that accomplished Christian’s non-sentencing goals as

well.

                                              2.

       We likewise cannot say that Christian established, beyond

any    possibility     of    fairminded         disagreement,           that    counsel     was

constitutionally        deficient         under       Rompilla           for    failing      to

investigate     Christian’s         felony      record       on    the    morning     of    the

plea.

       Under Christian’s version of the events, after Christian

informed     counsel       of     his    decision       to     plead      guilty      to    the

malicious assault charge and to go to trial on the armed robbery

charges, counsel informed the court and then came “back and . .

. describe[d] to [Christian] what would happen . . ., and we had

some    concerns     about      that.”         J.A.     554.         However,      Christian

provided no specifics about these concerns and instead testified

that the discussions did not change his decision.                                Rather, he

testified that he only decided to go through with “the original

                                              43
deal” after further, and again unspecified, discussions with the

prosecutor and his counsel.

       Christian          was   aware     that    he     faced      sentences         up     to   and

including two terms of life imprisonment if he were convicted of

the    armed       robberies      at     trial,       plus    the    3-15      years        for   the

police-officer            shooting,       without        regard          to    any     recidivist

sentencing.           Christian          was    also     made       aware      of     the    likely

sentences he faced based upon counsel’s knowledge of similar

trials       and    his    experience          with    the     particular           trial    judge.

Under a generous reading of the record, the most that can be

said is that counsel correctly advised Christian that he might

also be subject to a recidivist sentence of life in prison, if

he had two usable felonies that the prosecutor could prove in

that    proceeding.             And,     of    course,       any    recidivist         proceeding

would trigger the need for a presentence investigation and an

accompanying         delay       in    his     primary       quest       to    be     immediately

transferred to federal prison.                        But that accurate advice is a

far    cry    from    the       “gross    misinformation”            that      this    court      has

found constituted deficient performance.

       Given       the     severity       of     the    crimes,          the    non-recidivist

sentencing           exposure          that       Christian              faced,        and        the

representations           made    immediately          after       the   alleged       recidivist

conversations, we think the state court could have reasonably

concluded that Christian had failed to prove that counsel was

                                                 44
constitutionally       deficient       for        failing          to         immediately

investigate the status of Christian’s felonies in the wake of

his    last-minute   decision    to   back       out   of    the       plea    agreement.

Indeed, it seems much more likely that Christian was instead

reminded of the reasons why he had agreed to the plea agreement

in the first place.          There was overwhelming evidence against

him, he already faced the prospect of two life sentences without

regard to any recidivist enhancement, his determinate sentencing

exposure was practically unlimited, and rejecting the agreement

would cause him to lose the benefit of the bargain that allowed

him to be immediately transferred into federal custody and serve

his time there first.        Certainly, we think the state court could

have reasonably found, in light of all of the circumstances,

that    “counsel’s   representation        was    within         the    wide    range    of

reasonable professional assistance.”                   Harrington, 562 U.S. at

104.

                                      B.

       We   also   think   the   state     court       could       have       simply    and

reasonably    rejected     the   factual     premise        of    Christian’s          claim

that he believed, at the time he entered his plea, that he was

subject to a recidivist life sentence.                 See Blackledge, 431 U.S.

at 74 (In the post-conviction proceedings seeking to overturn a

guilty plea, “conclusory allegations unsupported by specifics is



                                      45
subject to summary dismissal, as are contentions that in the

fact of the record are wholly incredible.”).

       Setting    aside     Christian’s         evolving       factual         and    legal

allegations      during    the     post-conviction          process,        Christian’s

testimony at best consisted of his self-serving and conclusory

statement     that    he   “believe[d]”          he    would    be     subject        to    a

recidivist    sentence      of    life    imprisonment         based      on    counsel’s

“advising [him] of that.”               J.A. 553.         Although Christian also

testified that counsel discussed with him “what would happen”

and    the   “concerns     [they     had]      about    that,”       he   provided         no

specifics     about   this       and,    at    times,     appears      to      have    been

intentionally vague.        J.A. 554.

       In contrast, when testifying in support of his claim that

he pled guilty because counsel refused to prepare for trial and

pressured him to plead guilty instead, Christian testified with

much    specificity        regarding          counsel’s     advice        as     to        the

determinate terms of imprisonment that he would face if he were

convicted of the robbery offenses.                 According to Christian, his

counsel:

       would come in and tell me all the negative, you know,
       you’ve got to, you know, you’re caught red-handed with
       a smoking gun, you’ve got people that identified you
       out of a photo lineup, you got Adams who implicated
       you, you’ve got Sergeant Johnson who has testified to
       this, and he would mention things like you’re going to
       get 100 years in prison. And quite frankly, I know as
       odd as this may sound, I told him that I did not care
       if I got 2 or 300 years, I wanted a trial.

                                          46
J.A. 563 (emphasis added); see also J.A. 548 (“I remember one

time him yelling, You’re going to get 100 years in prison just

for one robbery like the other guy did.                          And . . . I said, I do

not   care      if    I     get    300    years     in    prison,    I   want      a     trial.”)

(emphasis added).

      When      Christian          first     raised      his    recidivist-advice          claim

before     the       state        supreme     court,      he    pointed      to    this        same

“determinate          sentence”          testimony       in    support    of      his    alleged

recidivist belief, arguing that:

      [c]ontemporaneously with counsel’s reference to the
      state’s recidivist laws, counsel would also make
      reference to lengthy prison sentences such as “You’re
      going to end up spending the rest of your life in
      prison,” and “You’re going to get a 100-years.”
      Consequently,    Petitioner    interpreted    counsel’s
      assertions as meaning “a mandatory life sentence.”

S.J.A.     26     n.6       (quoting         hearing      transcript      at      J.A.     563).

Unfortunately for Christian, however, the referenced testimony

does not pertain to events that occurred on the morning of his

guilty     plea,      or     to     counsel’s       recidivist       advice.            Moreover,

Christian altered his alleged testimony to support his post hoc

attempt      to      call     into       question       counsel’s     advice       as    to    his

recidivist        exposure.              Although        Christian    did      testify         that

counsel told him that he was “going to get 100 years in prison”

if convicted of the robberies based upon the evidence against

him, J.A. 563; see also J.A. 548 (testifying that counsel told

him   he   was       “going       to   get    100      years   in   prison     just      for   one

                                                  47
robbery like the other guy did”), the testimony did not include

the language that he was “going to end up spending the rest of

[his] life in prison.’”                S.J.A. 26 n.6.             While perhaps true,

given his non-recidivist exposure and poor health, Christian’s

misrepresentation         to     the   state      supreme     court      strikes     another

blow to his credibility.

       Henderson’s      testimony        actually       offers       more      support     for

Christian’s claim than Christian’s own testimony does, but it is

simply too speculative and qualified to cast aside the “benefit

of the doubt” that AEDPA demands we give to both the state

court’s view of the evidence and to counsel’s representation of

his client.       Woods, 135 S. Ct. at 1376 (internal quotation marks

omitted).       Counsel made it clear throughout his testimony that

he    did   not   recall        the    specifics      of    any    conversations          that

occurred during his representation, nor did he testify that he

told Christian that he would receive a recidivist sentence of

life    imprisonment       if     he    pled    guilty      to    just      the    malicious

assault     charge.         As     noted       above,      counsel    testified           that,

although     he   did     not    recall      the    conversation,         he      would    have

correctly explained to Christian that, if he entered a plea to

the    single     charge        and    had      two     prior     felonies         that    the

prosecution       could     prove       were       “usable”       felonies        under    the

recidivist statute, he would be subject to a recidivist life

sentence.

                                             48
     Given the evidence closer in time to the actual events, the

state   court    could    also     have      reasonably      found      all    of   this

testimony insufficient to satisfy Christian’s burden.                          Just one

month prior to Christian’s guilty plea, Christian offered to

plead guilty to just the malicious assault charge and go to

trial on the robberies, with the sole proviso that the 3-15 year

sentence    would   be    served    concurrent      with     his     5-year     federal

sentence.       Clearly, no one believed at that time that Christian

would be signing up for a mandatory, recidivist sentence of life

in prison by pleading guilty to the single count and going to

trial on the remaining two counts.

     Immediately after the alleged recidivist conversation took

place between Henderson and Christian, the state trial court

informed    Christian     that   the    crimes    to    which      he    was   pleading

guilty would count as the second strike against him and, if he

were to be found guilty of a felony in the future, could be used

to increase his penalty to “life in prison because it would be

strike three.”       J.A. 270 (emphasis added).                    Thus, the trial

court was made aware that Christian had one prior felony, and

Christian     confirmed      his    understanding          of      the     situation.

Christian    did    not    inform      the     court,   in      response       to   this

statement, that he had just been led to believe that he already

had two strikes and already qualified for a recidivist life-in-

prison sentence.

                                          49
     Finally, in a letter to Christian dated December 6, 2004,

Henderson set forth the specific terms of the plea agreement as

including the proviso that “[n]o recidivist [would be] filed by

the State for your previous felony.”                   J.A. 599 (emphasis added).

Consequently,       counsel       pointed    out,      “no   recidivist          was    filed

against      you,   you    were    allowed        to   waive      your    PSI     and    were

sentenced on the date of your plea, there was no mention of your

Hepatitis C condition as a factor in the plea agreement and the

prosecutor      did    call   federal        authorities          to     speed    up    your

transfer to federal custody.”               J.A. 599-600.

                                            VI.

     Finally, Christian is not entitled to federal habeas relief

because the state court could have reasonably concluded that

there   is    no    “reasonable      probability        that,      but    for    counsel’s

errors, he would not have pleaded guilty and would have insisted

on going to trial.’”          Premo, 562 U.S. at 129 (quoting Hill, 474

U.S. at 59).          Put another way, even if we assume Christian’s

counsel   rendered        deficient    performance,          he    has    no     cognizable

claim that “deficient performance” prejudiced him.

                                            A.

     Throughout the state post-conviction proceedings, Christian

has been opportunistic as to the circumstance that he alleged

“coerced” him to plead guilty.                   For example, Christian claimed

he would not have pled guilty if he had been aware of certain

                                            50
exculpatory evidence that was withheld from him or downplayed by

counsel.       He claimed the trial court’s failure to go over the

plea    questionnaire           with    him,     and       to    adequately      explain      his

constitutional rights, affected his decision.                              He claimed that

he pled guilty because he was denied a speedy trial and because

he did not believe he would be given a public trial.                                    He also

claimed     that      he        pled    guilty           because      counsel     refused     to

investigate his claims of innocence and prepare for trial.

       But Christian’s most vociferous “involuntary-plea” claim,

and really the only one that was alleged with any specificity in

the    state   habeas       pleadings         and    proceedings,         was    that    he   was

coerced into pleading guilty in order to escape the abuse he was

being    subjected         to    at     the    Cabell        County      Jail.        Christian

testified      that        he     was     assaulted             and    threatened       by    the

correctional       officers,            that        he     “was       thrown     in     solitary

confinement for no reason,” that he was constantly exposed to

secondary      smoke       that       made    his        eyes    water,    as    well    as   to

temperatures in excess of 100 degrees, and that he was forced to

sleep on the floor.                   J.A. 556-57.              Christian testified that

these “[h]orrific” jail conditions “[a]bsolutely” influenced his

guilty plea,” J.A. 556-57, and “alone . . . could have propelled

an individual to plead guilty just to get away from th[em].”

J.A. 556 (emphasis added); see also J.A. 577 (“I was a rag doll

and they beat the hell out of me” and “I come in here and plead

                                               51
guilty to crimes I didn’t want to plead guilty to.”); J.A. 581

(“[T]hey tortured the living daylights out of me for months that

I can’t describe to you.”).

      Christian repeatedly claimed that, but for these alleged

deficiencies on the part of his counsel and the court, and the

conditions of his confinement, he would not have pled guilty.

However,   Christian       never     claimed    that    “had    counsel    correctly

informed   him     about    his    [recidivist     exposure],      he     would   have

pleaded not guilty and insisted on going to trial.”                        Hill, 474

U.S. at 60.        On the contrary, Christian testified that, even

though he believed he was facing a recidivist life sentence if

he went to trial, he “still did not [waver]” and only changed

his mind after further, unspecified conversations were had with

the prosecutor and counsel.           J.A. 554.

      Even if he had made the factual claim that he would not

have pled guilty but for counsel’s recidivist advice, the state

supreme    court    could     have    reasonably       rejected    it     as   “wholly

incredible.”       Blackledge, 431 U.S. at 74”); see also Merzbacher

v.   Shearin,    706   F.3d    356,    366-67    (4th    Cir.     2013)    (“[I]t   is

entirely clear that to demonstrate a reasonable probability that

he would have accepted a plea, a petitioner’s testimony that he

would have done so must be credible.”).                   After all, the state

court rejected Christian’s testimony in every way that mattered

to the claims that he raised, including testimony that he had

                                         52
constantly maintained his innocence, did not direct counsel to

negotiate a plea deal, and always wanted to go to trial.                                 The

state   court     also        rejected     Christian’s      self-serving         testimony

that he was being abused at the jail, and that counsel exploited

this alleged abuse to force him to plead guilty.                               The state

court     further        rejected     Christian’s        testimony        that     counsel

pressured him into pleading guilty, finding that he had failed

to   “articulate      any      specific     factor     of   pressure      that    had    its

origins in the words or testimony of [his] counsel” and “did not

state   with    even      a    modicum     of    specificity     any     instance      where

counsel pressured [him] to enter a plea.”                        J.A. 256.        And the

state court found that Christian had failed to establish “that

[his] guilty plea was motivated by an alleged act of counsel’s

incompetency.”       J.A. 249.

       While the state court did not elaborate upon these more

general    findings,           we   note    that      Christian’s        own     testimony

contradicts his claim.              Christian now claims that he pled guilty

under the terms of the plea agreement because counsel led him to

believe    that     he    would     receive      a   recidivist    sentence       of    life

imprisonment if he were convicted of any of the three charges.

However, when testifying in support of his overarching claim

that he was actually innocent and that counsel pressured him

into    pleading     guilty,        Christian        testified    that    he     developed

“buyer’s remorse” after the plea and that, within hours of his

                                                53
guilty plea, he tried to withdraw it.                  However, Christian did

not testify that he wanted to withdraw it because in the course

of those few hours he had discovered that he was not subject to

a mandatory recidivist life sentence.

     In addition, the state court record includes numerous other

indications that Christian admittedly would lie about factual

matters if he believed it might benefit him to do so.                         For

example, Christian told the police and his counsel, immediately

after the shooting, that he thought Officer Combs was a “black

drug dealer that [he had] just robbed.”                  J.A. 383.     In state

habeas proceedings, Christian did not dispute that he made this

statement.    Rather, he claimed that he “made[]up” the story, and

that counsel was ineffective in failing to move to suppress this

incriminating statement prior to his entering his plea.                       J.A.

374, 574-75, 577.        Similarly, Christian told the state trial

judge (and    Officer    Combs)    that    he   only    committed    the   crimes

because he was a first-time drug user under the influence of

crack   cocaine.        At   the   state    habeas      proceeding,    however,

Christian vehemently denied using drugs, and claimed that this

additional,   prejudicial     “admission”       to   the   crimes    before    the

state trial court was nothing more than a “false claim before

the court that my actions were the result of first time drug

usage so that I could later file [a] reconsideration motion[]”

for an alternative sentence.          J.A. 457.         Of course, Christian

                                     54
claimed    that   he   lied     at    the    guilty       plea   hearing   about      most

everything else as well, including his representations that he

was guilty of the offenses, that he was totally satisfied with

his trial counsel, and that the prosecutor had never talked to

him about his plea outside the presence of his counsel.

     In light of this record, the state court could also have

reasonably    rejected,        as    wholly      incredible,       Christian’s       self-

serving,     conclusory,       and      belated      assertion       that,     but    for

counsel’s failure to investigate his prior felony record and

counsel’s recidivist advice on the morning of his plea, he would

not have pled guilty and would have insisted on going to trial

on the robbery charges.

                                            B.

     The     state     court        could    also     have       reasonably    rejected

Christian’s claim of prejudice because his decision to reject

the plea agreement and proceed to trial on the robbery counts

would not have been a rational one.                       See Padilla v. Kentucky,

559 U.S. 356, 372 (2010).

     When     evaluating            objective       reasonableness         under       the

prejudice    prong     of   Strickland,          “[t]he    challenger’s       subjective

preferences . . . are not dispositive; what matters is whether

proceeding to trial would have been objectively reasonable in

light of all of the facts.”                 United States v. Fugit, 703 F.3d

248, 260 (4th Cir. 2012).                   The challenger “cannot make that

                                            55
showing merely by telling [the court] now that [he] would have

gone to trial then if [he] had gotten different advice.”                               Pilla

v. United States, 668 F.3d 368, 372 (6th Cir. 2012).                               In other

words, to obtain relief from a guilty plea, the defendant must

do more than allege he would have insisted on going to trial if

counsel had not misadvised him as to the consequences of that

decision.         The    “petitioner         must     convince     the     court    that   a

decision to reject the plea bargain would have been rational

under the circumstances.”               Padilla, 559 U.S. at 372; see also

Roe v. Flores-Ortega, 528 U.S. 470, 486 (2000).

     Here,     the       record       evidence        of   Christian’s         guilt     was

overwhelming.           An    eyewitness       to    one   of    the   armed      robberies

pointed the police officers to Maynard’s apartment.                                The car

matching the description of the robbery get-away car was parked

in front of the apartment.               Christian ambushed Officer Combs as

soon as he walked into the apartment, and even he does not

dispute    that    he    was       “caught   red-handed         with   a   smoking     gun.”

J.A. 563.    Adams was also present in the apartment, confessed to

the robberies, and implicated Christian as his accomplice.                                 At

least one of the robbery victims identified Christian out of a

photo     lineup.            And     another        investigating        police     officer

testified that Christian admitted that he “figured it was the

police” coming into Maynard’s apartment “because [he] had just

robbed a place.”         J.A. 374.

                                             56
      Christian faced a non-recidivist sentence of up to life in

prison     if    convicted      of     either   robbery,      and    a     single       life

sentence would have disqualified him from an early release based

on good-time credits.             In the event that Christian received a

determinate term-of-years sentence proportionate to the 60 to 80

years     that   counsel       testified    had   been      upheld       by    the   state

supreme    court       in    similar    cases   for   a     single    armed      robbery,

Christian -- who was charged with two armed robberies and the

shooting of an investigating police officer -- faced determinate

sentences that carried parole eligibility provisions worse than

those applicable to even a recidivist life sentence, and far

worse than he faced under his plea agreement.                         Christian does

not contend that counsel misled him or incorrectly advised him

as   to   this       non-recidivist     exposure,     nor    does    he       dispute    the

accuracy of counsel’s representation that he would likely get a

sentence        of     100     years     irrespective        of      any       recidivist

enhancement. 5


      5Christian now seeks to paint his plea agreement as one
imposing an onerous 40-year sentence that he would have agreed
to only if he believed he was facing a mandatory recidivist
sentence of life imprisonment, and he claims that he would have
instead only faced a minimum sentence of 10 years imprisonment
for the robberies and the malicious assault.     This is a rosy
picture to say the least. This scenario would have required the
trial court to impose the minimum sentences for both armed
robberies (10 years each), and the malicious assault (3-15
years), and order all three sentences to be served concurrently,
which the record indicates was never a realistic possibility.
(Continued)
                                           57
       Under the circumstances, we have no trouble concluding that

the    Supreme       Court    of     Appeals      of    West     Virginia      could   have

reasonably found that Christian had little hope of prevailing at

trial on the charges and was “lucky to receive the deal that he

did.”       Fugit, 703 F.3d at 260.            The state court could also have

reasonably      found      that    Christian’s         decision     to    reject   a   plea

agreement that allowed him parole eligibility from his state

sentence in less than 11 years, the opportunity to exhaust his

state    sentence       in    less    than     20      years,    and     the   ability     to

transfer immediately into federal custody, which everyone agreed

at the time and on the record was in his best interest, would

have been an objectively unreasonable one.                         See Premo, 562 U.S.

at    129    (rejecting       claim    because         “[t]he    state     court   .   .    .

reasonably could have determined that [petitioner] would have

accepted       the     plea        agreement”          despite     counsel’s       alleged

deficiencies          because        “the      [s]tate’s          case     was     already

formidable,”         the     petitioner      “faced       grave     punishments,”        and




It would also have required the trial court to impose the
mandatory recidivist sentence to the malicious assault sentence,
instead of to a robbery sentence.     In other words, the trial
court would have had to impose a mandatory recidivist sentence
that would not have increased the defendant’s sentence at all.
In light of the severity of the charges, the high-profile nature
of the officer shooting, and the evidence of the victims’
involvement in the prosecution of the charges, the state supreme
court could have reasonably evaluated the likelihood of that
occurring as miniscule at best.


                                             58
“[t]he bargain counsel struck was . . . a favorable one”); cf.

Pilla,    668   F.3d   at    373   (concluding        that    proceeding      to    trial

would have been irrational where defendant “faced overwhelming

evidence of her guilt” and “had no rational defense, would have

been     convicted     and     would     have    faced        a    longer     term     of

incarceration”) (internal quotation marks omitted).

                                        VII.

       This case squarely presents the “special difficulties” that

arise    when   federal      judges    are    called    upon      to   evaluate     trial

counsel’s representation in the plea context, where “the record

. . . is never as full as it is after a trial,” “the potential

for the distortions and imbalance that can inhere in a hindsight

perspective may become all too real,” Premo, 562 U.S. at 125,

and the petitioner “has everything to gain and nothing to lose

from     filing   a    collateral       attack        upon     his     guilty      plea.”

Blackledge, 431 U.S. at 71.

       Here, abundant evidence exists to support a factual finding

that Christian’s guilty plea was driven not by his sentencing

exposure at all, which everyone agrees was onerous, but rather

by his recognition from the outset that he had little hope of

defeating either the federal or state charges against him, or of

living long enough to get out of prison at all, and by his

desire to spend as much of his remaining life as possible in

federal    prison.      Christian       may    well    have       developed     “buyer’s

                                         59
remorse.”      J.A. 555.    However, a defendant’s decision to plead

“guilty generally involves a conscious decision to accept both

the    benefits   and   burdens   of   a    bargain   [and]   [t]hat    decision

[should] not be lightly undone by buyer’s remorse on the part of

one who has reaped advantage from the purchase.”                   Fugit, 703

F.3d at 260.

       In cases such as this, “strict adherence to the Strickland

standard [is] all the more essential,” Premo, 562 U.S. at 125,

and we cannot say that the state court’s application of the

Strickland standard, in light of the evidence presented to it in

the state court proceedings, was unreasonable.                Accordingly, we

hold    that   Christian    has   failed     to   demonstrate    that    he   is

entitled to federal habeas relief from his plea of guilty to the

state charges.

                                                                        AFFIRMED




                                       60
GREGORY, Circuit Judge, dissenting:

     The majority goes to great lengths to disguise the simple

truths of this case:             Counsel gave bad advice to a client, and

the client relied on the advice in deciding to plead guilty and

forgo   his     constitutional           right       to    a    trial.          I   respectfully

dissent.



                                                I.

     On    the    morning       of   September            2,    2003,     Gregory      Christian

considered whether to plead guilty in state court to two counts

of first degree robbery and one count of malicious assault on a

police officer.         In negotiations with the government, Christian

had been mindful of the impact his two prior felony convictions

could have on any sentence imposed under the state’s recidivism

laws.     Indeed, Christian had gone so far as to condition his

tentative plea agreement on the demand that “NO RECIDIVIST [BE]

FILED!”    J.A. 597.

     As    became       clear    on       the    morning          of     the    plea   hearing,

Christian’s attorney, Gerald Henderson, assumed that the prior

felonies    could     trigger        a    mandatory            minimum       life   sentence   if

Christian       was   convicted          of   any     of       the     new     charges.     That

assumption was plainly false.                    Because Christian’s two felonies

were entered on the same day, they only counted as one strike

under     the    West    Virginia’s             recidivism           scheme.         Henderson,

                                                61
however, had failed to investigate his client’s criminal record

after being told of the existence of the two felonies.

      At the hearing, Christian told Henderson that he wanted to

plead guilty to only the malicious assault charge, and proceed

to trial on the robbery charges.                    Henderson warned Christian

that “if you enter a plea to a felony with no agreement that the

state won’t recidivist, then they have every right to file their

recidivist      petition.”         J.A.     516-17.           As   Henderson     further

recalled:

      I would have told you that pleading to the one count,
      if you have two usable felonies, which you told me,
      then of course that’s not in your best interest for
      them to give you life without eligibility if they can
      prove those priors. . . .

      I explained to you, would have explained to you that
      you understand that if you enter a plea to this charge
      and you have two felonies, as you told me you did,
      that they could file a petition, and if they prove
      those felonies that are usable felonies under law,
      that you could get life without eligibility for 15
      years. I would have advised you of that.

J.A. 518-19.

      Despite     the    thin    veneer     of     ‘hypotheticals’,         Henderson’s

testimony clearly establishes that (1) Christian told him of the

two   prior     felony    convictions;        (2)       Henderson    did    no   further

investigation      to    determine      the      date    or   nature   of    the     prior

felonies; (3) on the basis of Christian’s disclosure, Henderson

advised   him    that    he     faced   a   possible       mandatory       minimum   life

sentence if convicted of any of the new charges; and (4) the

                                            62
advice     Henderson        gave     was     incorrect        because        under      no

circumstances did Christian face such a sentence if convicted.



                                           II.

       Against   that   factual       backdrop,      the    question       we    face    is

simply whether the state court’s rejection of Christian’s habeas

petition involved an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984), and its progeny.                      Specifically,

would it have been unreasonable for the state court to believe

that   defense     counsel’s       performance      was    adequate     and,      if    so,

would it have also been unreasonable to believe that Christian

suffered no prejudice as a result of the deficient performance?

                                           A.

       Regarding     the     objective           reasonableness       of        counsel’s

performance, the pivotal question is this:                   did Henderson breach

an   established     duty    to    investigate       and    provide    sound      advice

about whether Christian’s prior felonies counted as separate for

recidivism purposes in West Virginia?                      The answer is clearly

yes.     As Strickland established, “counsel has a duty to make

reasonable investigations or to make a reasonable decision that

makes particular investigations unnecessary.”                       466 U.S. at 691.

Building   on    that   precedent,         both   the     Supreme    Court      and    this

Court have consistently held that an attorney has a duty to

investigate a client’s criminal record, in addition to other

                                           63
aspects of a client’s background, when the record has a bearing

on the current proceedings.               In Rompilla v. Beard, for instance,

the Supreme Court held that “lawyers were deficient in failing

to examine the court file on [a defendant’s] prior conviction”

when the lawyers knew the government intended to rely on the

prior conviction during sentencing.                  545 U.S. 374, 383 (2005).

Similarly, in United States v. Russell, 221 F.3d 615, 621 (4th

Cir.       2000),    this    Court      concluded    that   defense   counsel     was

ineffective         for   failing    to    adequately   scrutinize    and   contest

evidence of a defendant’s three prior felony convictions that

the    government         sought   to    introduce   for    impeachment.     As    we

observed:        “When representing a criminal client, the obligation

to     conduct       an     adequate      investigation     will   often    include

verifying the status of the client’s criminal record, and the

failure to do so may support a finding of ineffective assistance

of counsel.”         Id. at 621. *


       *
       Still more on point, this Court more recently held in an
unpublished decision that bad advice about the applicability of
a recidivism statute can constitute ineffective assistance.
United States v. Lewis, 477 F. App’x 79, 82 (4th Cir. 2012). In
Lewis, counsel advised a defendant during plea negotiations that
he faced a mandatory life sentence and was a career offender
under the Federal Sentencing Guidelines because of two prior
convictions.   Id. at 80.  The defendant, after some hesitancy,
accepted the government’s plea bargain.    Id.   But under Ohio
law, the prior convictions did not trigger a mandatory life
sentence or career-offender status.   Id. at 81-82.   This Court
found counsel’s contrary advice to be “plainly deficient under
Strickland.”    Id. at 82.    As we observed, “[h]ad [counsel]
(Continued)
                                            64
      Here, Henderson failed to investigate his client’s criminal

record – either by asking more questions or pulling a file –

when accurate information was critical to the client’s ability

to make an informed, intelligent choice about whether to accept

a    plea    deal.         Indeed,   Christian     made    clear     during    plea

negotiations that his desire to avoid a recidivism enhancement

was a significant motivating factor for accepting a deal – as

revealed     by    the     letter    Henderson     wrote     to    the   government

expressing Christian’s demand that “THERE WILL BE NO RECIDIVIST

FILED”.      J.A. 597.        Doing a minimally sufficient investigation

into Christian’s record would have involved very little effort,

requiring a simple examination of the dates of the two prior

felony convictions.          And the reward would have been significant,

fundamentally changing Christian’s calculus in deciding whether

to forgo his Sixth Amendment right to a trial.

      Of course, “when a defendant has given counsel reason to

believe that pursuing certain investigations would be fruitless

or    even        harmful,      counsel’s       failure      to     pursue    those

investigations       may     not   later   be   challenged    as    unreasonable.”




simply read the applicable federal statutes and correctly
applied them to the facts of this case, they would have
discovered their error.”      Id.; see also Hammond v. United
States, 528 F.2d 15, 17-18 (4th Cir. 1975) (observing, before
Strickland, that counsel’s incorrect advice about possible
sentences constituted ineffective assistance).


                                           65
Strickland, 466 U.S. at 691.               But there is no showing in this

record that Christian told Henderson that the convictions at

issue    were    entered    on   different      days,     or    that   he    otherwise

dissuaded further investigation.                The record thus supports the

conclusion that it would have been an unreasonable application

of   clearly      established      law    for     the     state    court      to    find

Henderson’s performance objectively reasonable.

                                          B.

     The question of prejudice hinges on whether Christian has

shown “a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and would have insisted on

going to trial.”           Hill v. Lockhart, 474 U.S. 52, 59 (1985).

Again,     the    record     provides      a     rather       conspicuous      answer.

According    to   Henderson’s      erroneous      advice,       Christian      faced     a

mandatory life sentence, with the possibility of parole after 15

years, if convicted of any of the three counts against him.                             In

reality,    Christian      faced   a     mandatory      minimum    sentence        of   10

years (if the sentences ran concurrently), even if convicted of

all counts.       He pled guilty to a sentence of 28 to 40 years

imprisonment without the possibility of parole for approximately

11 years.

     Christian’s      conduct      reveals      just    how    central      Henderson’s

erroneous    advice    was   in    his    decision-making.             As    previously

described, Christian expressly stated during plea negotiations

                                          66
the conditions under which he would accept a deal, as reflected

in a letter written by Henderson to the government.                              The letter

provided:

        [Christian] is willing to enter a plea under the
        following terms:    . . . (h) THERE WILL BE NO
        RECIDIVIST FILED!!!

J.A. 597.         By the letter’s own terms, Christian was acutely

aware of and concerned with the impact his two prior felonies

could have on any sentence.                  More telling, Christian actually

decided to reject the plea agreement on the morning of trial,

and   only   accepted      it   a    short      time      after      he    was   erroneously

reminded     by    Henderson        that   he       faced      the    possibility       of    a

mandatory life sentence if convicted of one of the counts.

      Of course, as the majority points out, it is possible that

Christian    would       have   received        a    lengthy      sentence       if    he    had

chosen to go to trial.                But the Sixth Amendment right to a

public trial does not exist solely when a trial would be in a

defendant’s       best     interests.               The   record          here   compels      a

conclusion that it is reasonably probable Christian would have

exercised    this    constitutional           right       if    he    received        accurate

advice.

      I respectfully dissent.




                                             67
