     Case: 15-20434   Document: 00514585946     Page: 1   Date Filed: 08/03/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                 No. 15-20434                      August 3, 2018
                                                                   Lyle W. Cayce
JOHN KING,                                                              Clerk


             Petitioner - Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

             Respondent - Appellee




                Appeal from the United States District Court
                     for the Southern District of Texas


Before CLEMENT, HIGGINSON, and HO, Circuit Judges.
JAMES C. HO, Circuit Judge:
      John Troy King pleaded guilty to killing Djuan Jefferson with a knife.
The Texas court found him guilty of murder with a deadly weapon and
sentenced him to 45 years in prison. King then sought post-conviction relief in
state court, arguing that his trial counsel’s performance was constitutionally
deficient. After the Texas courts denied King’s claims of ineffective assistance,
he sought a writ of habeas corpus in federal court.
      The district court denied the writ, and our Court granted a certificate of
appealability on two of King’s ineffective assistance of counsel claims: (1) that
counsel advised him he was eligible for court-ordered community supervision
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                                  No. 15-20434
despite the fact that he was statutorily ineligible and (2) that counsel failed to
convey a 15-year plea offer from the State. We affirm because the state court’s
resolution of these claims was neither contrary to, nor an unreasonable
application of, clearly established federal law as determined by the Supreme
Court.
                                        I.
      A Texas grand jury indicted King for murdering Djuan Jefferson by
stabbing him with a knife, after previously having been convicted of felony
possession of a controlled substance. King agreed to plead guilty in exchange
for the State’s agreement to waive the indictment’s enhancement paragraph,
which lowered the mandatory minimum sentence to 5 years from 15 years. The
parties did not reach an agreement as to the sentence length, but agreed that
King would be sentenced based on a Presentence Investigation (PSI) report.
Pursuant to King’s written plea agreement, the judge found King guilty of first-
degree felony murder with a deadly weapon and sentenced him to 45 years in
prison. King did not appeal.
      King then sought habeas relief in state court, arguing that he received
ineffective assistance of counsel.   As relevant here, King alleged that his
counsel advised him that “the Judge could grant him Court ordered
Community Supervision”—despite the fact that counsel “knew that Defendant
King was not even eligible for Community Supervision.” According to King, he
“would not have entered a guilty plea . . . had his attorney correctly advised
him . . . that he was not eligible for Judge ordered community supervision.”
Instead, he “would have insisted upon going to trial.”
      King also argued that his counsel failed to tell him about a 15-year plea
deal the State allegedly offered. King learned of this offer “[o]nly through a
website review/response between Gina Chambers and [King’s counsel].” As
Gina Chambers explained in her affidavit, King’s lawyer “replied to my review
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                                  No. 15-20434
wherein she stated, ‘My client had an opportunity to plead to 15 years in this
case . . . the last option was a PSI and he opted that route.’ ” King also asserted
that he “would have accepted” the 15-year deal “had he known about it.”
      The state court ordered King’s trial attorney to file an affidavit
responding to his allegations, but she failed to do so. The State’s attempts to
locate her were unsuccessful, but it did inform the court that she was no longer
licensed to practice in Texas.
      The state court denied the writ, ruling that King failed to demonstrate
both (1) “that trial counsel’s representation fell below an objective standard of
reasonableness” and (2) that there was “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different” as to both of his claims.     As to the failure of King’s counsel to
communicate the alleged 15-year plea offer, the state court found that King’s
“[c]onclusory allegations are not enough to overcome the State’s denial.” See
Ex parte Empey, 757 S.W.2d 771, 775 (Tex. Crim. App. 1988). See also Tex.
Code Crim. Proc. art. 11.07, § 3(b) (“Matters alleged in the application not
admitted by the state are deemed denied.”). The court also explained that
King’s allegation “that he did not want to plead guilty, but rather wanted to go
to trial renders his argument that he would have accepted a plea bargain of
fifteen years . . . irrelevant.” Finally, the court ruled that King “failed to meet
his burden of providing evidence that the State would not have withdrawn the
offer or that the trial court would not have refused to accept the plea bargain.”
      The Texas Court of Criminal Appeals affirmed, without written decision.
      King then sought federal habeas, re-urging his ineffective assistance of
counsel claims. Regarding his probation-based ineffectiveness claim, King
urged that if he “knew his only alternative was jail time[,] he would have never
plead[ed] guilty but [would have] went to trial.”           As to his failure-to-
communicate claim, King explained that “had he been properly informed of the
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                                   No. 15-20434
15 year plea offer, he would have accepted the offer rather than going to trial
by Judge.”
      The district court denied the writ, and we now affirm.
                                       II.
      “When a state prisoner asks a federal court to set aside a sentence due
to ineffective assistance of counsel during plea bargaining, our cases require
that the federal court use a doubly deferential standard of review that gives
both the state court and the defense attorney the benefit of the doubt.” Burt v.
Titlow, 571 U.S. 12, 15 (2013) (internal quotation marks omitted) (quoting
Cullen v. Pinholster, 563 U.S. 170, 190 (2011)). In other words, King must
show not only (1) “that counsel’s performance was deficient” and “that the
deficient performance prejudiced the defense,” Strickland v. Washington, 466
U.S. 668, 687 (1984), but also (2) that the state court’s decision rejecting his
claims “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).
                                        A.
      King’s argues that his counsel performed deficiently by advising him
that, by pleading guilty, he would be eligible for court-ordered community
supervision—despite the fact that he was statutorily ineligible for community
supervision.   To prevail on this claim, King must show both (1) deficient
performance (i.e., “that counsel’s representation fell below an objective
standard of reasonableness”) and (2) prejudice (i.e., “that there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different”). Hill v. Lockhart, 474 U.S. 52, 57 (1985)
(quoting Strickland, 466 U.S. at 687–88, 694).        To “satisfy the ‘prejudice’
requirement” in the context of a guilty plea, “the defendant must show that


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                                        No. 15-20434
there is a reasonable probability that, but for counsel’s errors, he would not
have pleaded guilty and would have insisted on going to trial.” Id. at 59. 1
       King alleged that he would have gone to trial had he known that he was
ineligible for probation. But he failed to allege that going to trial would have
given him a reasonable chance of obtaining a more favorable result. That
omission is fatal to his claim. As we have explained, demonstrating prejudice
requires showing not only that the petitioner would have gone to trial, but also
“that going to trial . . . would have given him a reasonable chance of obtaining
a more favorable result.” United States v. Shepherd, 880 F.3d 734, 743 (5th
Cir. 2018) (alteration in original) (quoting United States v. Batamula, 823 F.3d
237, 240 (5th Cir. 2016) (en banc)). See also Batamula, 823 F.3d at 241 (ruling
allegations and evidence “suggesting only that [petitioner] would have
proceeded to trial had he known” are insufficient to demonstrate prejudice);
United States v. Kayode, 777 F.3d 719, 726 (5th Cir. 2014) (“Another important
factor is whether the defendant has demonstrated that he was likely to succeed
at trial.”). In other words, “counsel’s ineffectiveness is only a basis for vacating
a conviction if there is a reasonable probability it made a difference to the
outcome of the proceeding.” Young v. Spinner, 873 F.3d 282, 285 (5th Cir.
2017). See also Kayode, 777 F.3d at 726 (“In assessing whether a reasonable
defendant would have rationally chosen to go to trial under the circumstances,
we also consider the risks faced by a defendant in selecting a trial rather than
a plea bargain.”).




       1Because we resolve this claim on prejudice grounds, we need not opine on counsel’s
performance. But it is far from clear that King can show constitutionally deficient performance.
See Bond v. Dretke, 384 F.3d 166, 168 (5th Cir. 2004) (petitioner must “show that his guilty
plea was induced by his counsel ‘clearly and unequivocally guaranteeing a lesser sentence or
some other specific leniency’ . . . such as ‘(1) a downward departure at sentencing; (2) a lesser
sentence; or (3) parole, commutation or pardon after a certain period of incarceration’ ”).
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                                  No. 15-20434
      Were that not enough, the evidence against King was strong.              See
Armstead v. Scott, 37 F.3d 202, 210 (5th Cir. 1994) (“bare allegation” that
petitioner “would have insisted upon going to trial” insufficient to establish
prejudice—especially where “evidence of guilt against [the petitioner] was
strong”). And the only way King could have avoided jail time was acquittal—
Texas law precludes community supervision not only if a defendant is
convicted of murder but also if the defendant used or exhibited a deadly
weapon during the commission of a felony. See Tex. Code Crim. Proc. art.
42.12, § 3g(a)(1)(A), (a)(2) (2010) (currently codified at Tex. Code Crim. Proc.
art. 42A.054(a)(2), (b)). See also Hill, 474 U.S. at 60 (no prejudice even where
“petitioner’s mistaken belief that he would become eligible for parole . . . would
seem to have affected not only his calculation of the time he likely would serve
if sentenced pursuant to the proposed plea agreement, but also his calculation
of the time he likely would serve if he went to trial and were convicted”).
      Accordingly, we cannot say that the state court’s determination was
contrary to, or an unreasonable application of, clearly established federal law
as determined by the Supreme Court.
                                        B.
      King’s second ineffective assistance of counsel claim is based on counsel’s
alleged failure to inform him that the State offered a 15-year plea deal. Again,
to prevail, King must show both deficient performance and prejudice. To
establish prejudice where “counsel’s deficient performance causes a plea offer
to lapse or be rejected,” a petitioner “must demonstrate a reasonable
probability that: (1) he would have accepted the plea offer had he been afforded
effective assistance of counsel; (2) the plea would have been entered without
the prosecution canceling the offer or the trial court’s refusing to accept it; and
(3) the end result of the criminal process would have been more favorable by
reason of a plea to a lesser charge or a sentence of less prison time.” United
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                                       No. 15-20434
States v. White, 715 F. App’x 436, 437–38 (5th Cir. 2018) (citing Missouri v.
Frye, 566 U.S. 134, 147 (2012)). 2
       As King concedes, the only evidence demonstrating the existence of the
alleged 15-year plea offer is the affidavit of Gina Chambers. According to that
affidavit, Chambers wrote a negative review of King’s attorney on the website
merchantile.com. King’s attorney allegedly “replied to [the] review,” stating:
“My client had an opportunity to plead to 15 years in this case . . . the last
option was a PSI and he opted that route.” 3
       But there is no evidence that it was actually King’s attorney who replied
to Chambers’s review—King’s attorney did not file an affidavit confirming or
denying the existence of such a plea offer. Nor did the State confirm the
existence of such an offer. See Tex. Code Crim. Proc. art. 11.07, § 3(b) (“Matters
alleged in the application not admitted by the state are deemed denied.”). As
the state court ruled, King’s “[c]onclusory allegations are not enough to
overcome the State’s denial”—a factual finding which “shall be presumed to be
correct” in federal habeas. 28 U.S.C. § 2254(e)(1). 4



       2    King’s retroactivity argument—that Frye is inapplicable because it was not decided
until after his conviction became final—is meritless. Not only was Frye decided before the
Court of Criminal Appeals ruled on his habeas petition, but “we have previously held . . . that
Frye did not announce a new rule of constitutional law because it ‘merely applied the Sixth
Amendment right to counsel to a specific factual context.’ ” Miller v. Thaler, 714 F.3d 897,
902–03 (5th Cir. 2013) (quoting In re King, 697 F.3d 1189, 1189 (5th Cir. 2012)). See also
Greene v. Fisher, 565 U.S. 34, 38 (2011) (“As we explained, § 2254(d)(1) requires federal courts
to focus on what a state court knew and did, and to measure state-court decisions against
this Court’s precedents as of the time the state court renders its decision.”) (alteration and
internal quotation marks omitted).
          3 King’s selective use of Chambers’s affidavit is also problematic. He relies heavily

(and exclusively) on his counsel’s purported statement to establish the existence of the alleged
15-year offer but, in the same breath, wholly disregards her assertion that he opted to take
the PSI route instead.
          4 It follows that if King cannot show that the offer actually existed, he also cannot

show that the trial court would have accepted it. See Frye, 566 U.S. at 147 (“To show prejudice
. . . [a petitioner] must also demonstrate a reasonable probability the plea would have been
entered without the prosecution canceling it or the trial court refusing to accept it.”).
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                                       No. 15-20434
       Absent such an offer (or absent counsel’s failure to convey such an offer),
King cannot demonstrate that his counsel performed deficiently—let alone
that the state court’s decision was contrary to, or an unreasonable application
of, clearly established Supreme Court precedent.
       Even assuming that such an offer existed, and tha it was never conveyed
to King, he still cannot prevail.           Under Frye, a petitioner must show “a
reasonable probability that he would have accepted the lapsed plea.” 566 U.S.
at 150. But here, King pleaded—both in state court and federal court—that he
“would have insisted on going to trial” had he known that “he was not eligible
for Judge ordered community supervision.” There is nothing in the record to
suggest that King would have been eligible for community supervision under
the alleged 15-year plea offer.
       Thus, as the state court explained, King’s allegation “that he did not
want to plead guilty, but rather wanted to go to trial[,] renders his argument
that he would have accepted a plea bargain of fifteen years in TDCJ-ID
irrelevant.” We cannot say this conclusion is contrary to, or an unreasonable
application of, clearly established Supreme Court precedent. See Young, 873
F.3d at 288 (“Even if [King] has a plausible argument that he would have
[accepted the alleged 15-year deal] had he known [probation] was impossible,
that does not establish that the state court’s contrary conclusion was
unreasonable.”). 5


       5 King argues that the state court erred by considering his sworn allegation—that he
would have gone to trial had he known he was statutorily ineligible for probation—because
that allegation went to a different ineffective assistance claim. In other words, King contends
that the following are simultaneously true: (1) had he known he was ineligible for probation,
he would have gone to trial, and (2) had he known about the alleged 15-year plea offer, he
would have accepted it and pleaded guilty even though he was not eligible for probation.
        Perhaps those two assertions are not in irreconcilable conflict. But that is neither
here nor there—King “was convicted in state court, so we are deciding only whether the state
court unreasonably applied the Strickland standard in finding no prejudice.” Young, 873
F.3d at 288.
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                          No. 15-20434
 Accordingly, the judgment of the district court is AFFIRMED.




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