## IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________



### m 99-50190

_______________



### J ESSE 

### M ONTOYA



### ,

Petitioner-Appellee,

VERSUS



### G ARY 

### L. J OHNSON



### ,

D IRECTOR

, T EXAS D EPARTMENT OF C RIMINAL J USTICE

,

I NSTITUTIONAL D IVISION

,



### Respondent-Appellant.

_________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________ September 14, 2000

Before JOLLY, SMITH, and BARKSDALE,

Circuit Judges.

JERRY E. SMITH, Circuit Judge:

When he plea ded guilty, for separate

criminal acts, to federal charges of carjacking

and state charges of aggravated robbery, Jesse

Montoya no doubt would have preferred that

his federal and state terms of imprisonment run concurrently. The state court did sentence him

concurrently but, importantly, did so before

the federal court had issued its sentence.

There being no previous federal sentence with

which Montoya’s state s ent ence could run, it

was left to the federal court to decide whether

to al lo w his federal sentence to run

concurrently with his previously-issued state

sentence. Montoya’s hopes were thus largely

dashed when the federal court subseque n tly2

sentenced him to a consecutive term of

in carceration, for that meant that his state

sentence would run concurrently only if he

were prematurely discharged from state prison

and subsequently detained for federal

incarceration.

In retrospect, Montoya would have been

better served had he been sentenced in federal

co u rt before he was sentenced by the state

court. He claims constitutional error, seeking

a federal writ of habeas corpus from his guilty

plea on the state charges on the gr ound that

that plea was premised on the state’s promise

of concurrent sentencing, failure of which rendered his plea unknowingly and invol unt arily

submitted. Alternatively, he complains of unconstitutionally ineffective counsel.

The state courts have rejected these

arg uments, concluding that Montoya was

made adequately aware of the terms of his

state plea agreement in open court, thereby

rendering his plea volunta ry and curing any

ineffectiveness of counsel. Therefore,

whatever we might have thought of Montoya’s

claims if we were rul

ing on them in the first

instance, principles of federalism, comity, and

finalit y of judgments, impressed upon us by the

Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”), counsel us to deny relief.

Consequently, we REVERSE.

I.

Before imposi

t ion of the state sentence,

Montoya had pleaded guilty to carjacking

charges in federal court. He had not been

sentenced on the feder a l charge when he

pleaded guilty to, and faced sent encing for,

aggravated robbery in Texas state court.

A.

Monto ya’s plea agreement with the state provided that his twelve- year state sentence

would be imposed concurrently with his

pending federal sente n ce. 1 That is, the state

agreed to allow him to use an y time spent

serving a federal sentence as credit against his

state sentence. Accordingly, Texas law

authori zes a state court to sentence a

defendant to a term of imprisonment to be

served concurrently with ano t her

sentence 

### SS

but only if the ot her sentence has

already been imposed. 2 When Montoya was

sentenced on the state charge, however, there

was no pending federal sentence with which

the state sentence could run concurrently

pursuant to the state plea agreement.

C lifford Hardwick, Montoya’s attorney in

the state prosecution, advised him to pl ead

guilty in state court, even t h ough federal

sentencing had not yet taken place, rather than

to seek a continuance and delay pleading and

sentencing in st ate court until after federal

sentencing, because the poli cy of the state

judge was either to accept a plea or proceed

1 The written plea agree ment read: “I have

agreed with the State to the terms and conditions of

the plea agreement as follows: 1. I will enter a

plea of guilty to the offense of Aggravated

Robbery, char ged against me in this cause. . . .

3. Defendant’s punishment will be set as follows:

Twelve (12) Years IDTDCJ, concurrent with

Federal sentence.”

2 See T EX

. C ODE C RIM

. P. art. 42:08(a) (stating

that “in the discretion of the court, the judgment in

the second and subsequent convictions may either

be tha t the sentence imposed or suspended shall

begin when the judgment and the sentence imposed

or suspend ed in the preceding conviction has

ceased to operate, or that the sentence imposed or

suspended shall run concurrently wi th the other

case or cases, and sentence and execution shall be

accordingly”).3

immediately to tr ial. An earlier opportunity

for federal sentencing had been delayed

because Montoya’s federal counsel was out of

town.

At the plea hearing in state court, the

following exchange took place:

THE COURT: I just want to make sure

that there wasn’t something else that

they offered you and changed it. Okay.

And . . . does that include all aspects of

the recommendation, Mr. Hardwick?

MR. HARDWICK: Well, also, Your

H onor, the State had agreed that that

sentence

. . . ru n concurrent with his

federal offense, w hich is to be sentenced 

### SS h e is to be sentenced on

August 31st for the federal offense and

he already pled guilty to that.

THE COURT: All right. I am going to

write that in on i t em three here.

Concurrent with the federal sente nce.

Now, you und erstand, Mr. Montoya, I

can’t bind the federal judge to do

anything. But w hat I am saying is that

our time 

### SS

you will be given credit on

this sentence w ith the time you serve in

federal court. Now, what they do, I am

not sure. I don’t know about how

they 

### SS w hat their rules are.

THE DEFENDANT: I understand

.

THE COURT: But our rule will be that

you will get credit on this one.

. . . I will

announce for the record t hat I will not

exceed the agreed recommendation as to

punishment.

. . . [T]welve years to be

s erved concurrent with the feder a l

sentence. Montoya had previously de monstrated at

least some abilit

y to comprehend and exercise

his rights as a criminal defendant. When asked

by the state trial court whether he had read the

form he had previously signed waiving his appeal rights, he re sponded that he had not,

thereby allowing the court to respond and to

ensure protection of his rights to due process

by allowing h im the opportunity to read that

form.

B.

Subsequently, the federal c ourt sentenced

Montoya to a seventy-eig ht -month federal

sentence, to be served consec u tively to his

state sentence. 3 He thus was placed under a

federal detainer, such that he would not begin

serving his federal sentence until release from

state custody, so there was no federal term of

incarceration with which to ru n his state

sentence concurrently, because he would not

begin serving his federal time until his release

from state custody. His right to a concurrent

state sentence would not be triggered,

therefor e, until after his release from state

3 The decision to run f ederal sentences

concurrently or consecutively with p ending

sentences is governed by 18 U.S.C. § 3584(a) (“If

multiple terms of imprisonment ar e imposed on a

d efendant at the same time, or if a term of

imprisonment is imp o sed on a defendant who is

already subject t o an undischarged term of

imprisonment, the terms may run concurrently or

consecutively, except that the terms may no t run

consecutiv ely for an attempt and for another

offense that was the sole objective of the attempt.

Multiple terms of imprisonment imp osed at the

same time run concurrently unless the court orders

or the statute mandates that the terms are to run

consecutively. Multiple terms of imprisonment

imposed at different times run consecutively unless

the court orders that the terms are to run

concurrently.”).4

cu stody 

### S S as in the case of parole or habeas

relief fr o m state imprisonment (which the

federal court would later grant).

C.

Montoya first filed a habeas petition in state

court, challenging his state senten c e. He argued that T EX

. C ODE C RIM

. P. art. 26:13 required the trial court to admonish him that the

te rms of the plea agreement regarding concurrent sentencing was not binding on the federal court 4 and that , because of the l ack of

warning by the trial

court or his counsel, his

guilty p l ea was not made knowingly and

voluntarily. 5 He additionally demanded withdrawal of his plea on the ground that specific

performance of the plea agreement was

impossible, and the promises made to him

therefore were illusory. Finally, he alleged

ineffective assistance of counsel.

The Texas Cour t of Criminal Appeals rejected the pe t ition without written order,

thereby accepting the trial court’s finding that,

if nothing else, the exchange in open court

between the petitioner and the judge

(excerpted above) adequately informed Montoya of the terms and limitations of his

plea agreement 

### SS

specifically, that court’s lack

of power to bi nd the federal court to

concurrent sentencing. The state habeas court

also c o ncluded there was no harm from any

ineffective as sist ance of counsel and that the

promises made to Montoya were not illusory:

His federal sentence was to run consecutively

with his state sentence, while his state sentence

could run concurrently with a pending federal

sentence.

Therefore, the state courts reasoned, Montoya’s entitlement to state imprisonment credit

for any federal time served would be realized

only if he were paroled from state custody, an

event that wo uld t rigger his federal

imprisonment. Only under those particular circumstances would his ti me in federal

imprisonment be credite d by the state. But

that benefit was enough for the state court to

support the plea agreement against a habeas

challenge 

### SS

even though other eviden c e

established that Mon t o ya sought fully

concu rrent sentences and that Hardwick had

told him that the agreement guaranteed fully

concurrent sentences, despite cou nsel’s

awareness that Texas l aw did not provide as

much because the federal sentence had not yet

been imposed.

D.

In early 1997 

### SS

after the April 24, 1996, eff ective date of

AEDPA 

### S

S Montoya file d the

instant petition for federal habeas relief before

the same judge who had sentenced him on the

f ederal carjacking charge. The federal co urt

granted the habeas petition and ordered Montoya’s immediate release f r om Texas custody

to the U.S. Marshal so that he could begin service on his federal charge. In doing so, the

court noted that, at the time it sentenced Montoy a on the federal charge, the judge had held 4 See T EX

. C ODE C RIM

. P. art. 26:13(a) (“Prior

to accepting a plea of guilty

. . . the court shall adm onish the defendant of: (1) the range of th e

punishment attached to the offense”). S ee also

T EX

. C ODE C RIM

. P

. art. 26:13(c ) (“In

admonishing the defendant as her ein provided,

substantial compliance by the court is suffi cient,

unless the de f

endant affirmatively shows that he

was not aware of the consequences of his plea and

that he was misled or harmed by the admonishment

of the court.”).

5 See T EX

. C O DE C RIM

. P. art. 26:13(b) (“No

plea of guilty . . . shall be accepted by the court

unless it appears that the defendant is mentally

competent and the plea is free and voluntary.”).5

office for only a

short time and that were he

able to do the sentencing over again, he would

do ev e rything in his power to ensure a

concurrent federal sentence.

The court then gave the state 120 days t o

allow Montoya

t o withdraw his plea and

choo s e either to enter a new plea or proceed

t o trial. The court stay ed its order pending

this appeal.

II.

Before enactment of AEDPA, “a federal

court entertaining a state prisoner’s appl i cation

for habeas relief

. . . exerci se[d] i ts

independent judgment when deciding both

questions of constitutional law a nd mixed

constitutional questions ( i.e.

, applicat ion of

constitutional la w to fact). In other words, a

feder al habeas court owed no deference to a

state court’s resolution of such questions of

law or mixed questions.” 6

Embodying the p r inciples of federalism,

comity, and f

inality of judgments, 7 AEDPA substantially res t ricts the scope of federal review of state criminal court proceedings. 8 As

before, a habeas petitioner has the burden under AEDPA to prove that he is entitled to

relief. 9 In addition, however, AEDPA directs

that

[a]n application for a writ o f habeas

corpus on behalf of a person in custody

pursuant to the judgment of a State

court shall not be granted with respect

to any claim that was adjudicated on the

merits in State court proceedings unless

the adjudication of the claim 

### SS

(1) resulted in a decision that

was contrary to, or involved an

unreasonable application of,

clearly established Federal law,

as determined by the Supreme

Court of the United States; or

(2) resulted in a decision that

was based on an unreasonable

6 Williams v. Tayl or , 120 S. Ct. 1495, 1516

(2000) (O’Connor, J., concurring). S ee also

28 U.S.C. § 2254(d) (West 1994).

7 See Teague v. Lane , 489 U.S. 288, 306

(198 9) (“Habeas corpus has always been a

collateral remedy

, providing an avenue for

upsetting ju dgments that have become otherwise

final. It is not designed as a substitute for direct

review. The interest in leaving concluded litigation

in a state of repose, that is, reducing the

co ntroversy to a final judgment not subject to

further judicial revision, may quite legitimately be

found by those responsible for defining the scope of

the writ to outweigh in some, many, or most

instances the competing interest in readjudicating

convictions according to al l legal standards in

(continued...) 7 (...continued)

effect wh en a habeas petition is filed.”) (quoting

Mackey v. United States

, 401 U.S. 667, 682-83

(1971) (Harlan, J., co ncurring)). S ee also

Williams

, 120 S. Ct. at 1506 ( Stevens, J.,

concurring) (“It is perfectly clear that AEDPA codifies Teague to the extent that T eague requires

federal habeas courts to deny r elief that is

cont ingent upon a rule of law not clearly

established at the time the state conviction became

final.”).

8 See Williams

, 120 S. Ct. at 1516 (O’Connor,

J., concurring) (noting that AEDPA “placed a new

restriction on the power of federal court s to grant

writs of habeas corpus to state prisoners.”).

9 See id. at 1518; Engle v. Isaac

, 456 U.S. 107,

134-35 (1982).6

determination of the facts in

light of the evidence presented

in the State court proceeding.

28 U.S.C. § 2254(d).

Thus, federal courts may not grant the writ

me rely on a finding of error by a state court,

but only if a state court “ arrives at a

conclusion opposi t e to that reached by [the

Supreme Court] on a question of law or if the

state court decides a case differently than [the

Su preme Court] has on a set of materially

indistinguishable facts,” Williams , 120 S. Ct.

at 1523 

### SS

a contention Montoya

does not

make.

Absent such a direct conflict with the

Supreme Court, the writ is available only if the

state court “unreaso nably applies [clearly established federal law , as determined by the

Supreme Court] to the facts of the prisoner’s

case,” id.

, or makes “an unreasonable

determination of the facts in light of the

evidence presented in the St ate court

proceeding.” 10 The standard is one of

objective reasonableness. 11 Montoya claims, first, that his guilty plea

was induced by a breached or illusory promise

from the st ate and therefore was not entered

into knowingly, voluntarily, and intelligently,

as the Due Process Cla use requires. He

additionally claims that counsel was

constitutionally ineffective by failing to explain

the illusory promise to him.

Although the Texas state cou r ts rejected

both claims on petition for state habeas relief,

the federal court granted relief on both

grounds. Concluding that the state court reasona bly rejected Montoya’s claims, we reverse.

III.

A guilty ple a will be upheld on habeas review if entered into knowingly, voluntarily,

and intelligently. See James v. Cain , 56 F.3d

662, 666 (5th Cir. 1995).

10 28 U.S.C. § 2254(d)(2). S ee also 28 U.S.C.

§ 2254(e)(1) (“In a proceeding instituted by an application for a writ of habeas corpus by a person in

custody pursuant to the judgment of a State court,

a determination of a factual issue made by a State

court shall be p resumed to be correct. The

applic ant shall have the burden of rebutting the

presumption of correctness by clear and convincin g

evidence.”).

11 The state makes reference to a standard of

“reasonable ju r ists,” under which the federal writ

is granted only if the state court has applied federal

law in a manner that all reasonable jurists would

agree is unreasonable. But after briefing was

(continued...) 11 (...continued)

completed in this case, the Supreme Court rejected

that standard in favor of a pure l y objective

standard of reasonableness. S ee Williams

, 120 S.

Ct. at 1521-22 (“The placement of this additional

overlay [of reasonable jurists] on the ‘unreasonable

application’ clause was erroneous. . . . Stated

simply, a federal habeas court mak i ng the

‘unreasonable appli cation’ inquiry should ask

whether the state court’s application of clearly

established federal law was objectively

unreasonable. The federal habeas court should not

transform the inquiry into a subjective one by

resting its determination instead on the simple fact

that at least one of the Nation’s jurists has applied

the relevan t federal law in the same manner the

state court did in the habeas petitioner’s case. The

‘all reasonable jurists’ st andard would tend to

mislead federal habeas corpus courts by focu sing

t heir attention on a subjective inquiry rather t han

on an objective one.”).7

A plea of guilty e nt ered by one fully

aware o f the direct consequences,

including the actual value of any

commitments made to him by the court,

prosecutor, or his own counsel, must

stand unless induced b y threats (or

promi ses to discontinue improper

harassment), misrepresentation

(includin g unfulfilled or unfulfillable

promises)

, or perhaps by promises that

are b y their nature improper as having

no proper relationship t o the

prosecutor’s business ( e.g. bribes).

Brady v. United States

, 397 U.S. 742, 755

(1970) (emphasi s added). In other words,

where a plea “rests in any significant degree on

a promise or agreement of the prosecutor, so

that it can be said to be part of the inducement

or consideration, su ch promise must be

fulfilled.” S antobello v. New York , 404 U.S.

257, 262 (1971). Otherwise, “[w]hen a

defendant pleads g uilty on the basis of a

promise by his defense attor n ey or the

prosecutor, whether or not such promise is

fulfil lable, breach of that promise taints the

voluntariness of his plea.” M cKenzie v.

Wainwright

, 632 F .2d 649, 651 (5th Cir.

1980). “It is clear that an unfulfilled state

promise obtained in return for a plea of guilty

will entitle a prisoner t o habeas relief.”

McNeil v. Blackburn , 802 F.2d 830, 832 (5th

Cir. 1986).

Thus, a finding that Montoya ’s plea

agreement contained either an illusory or

breached promise 

### S

S and that the state cour t

u nreasonably found to the contrary 

### S S would

warrant federal habeas relief. Alternatively, if

the terms of the agreem

ent , though fulfilled,

were misrepresented to Montoya 

### SS and if the

st at e court unreasonablyfound to the contrary 

### SS habeas relief also would be justified. A.

First, we conclude that the state committed

no breach o f t he plea agreement, because a

state is not responsible for what might occur in

federal criminal proceedings. In doing so, we

follow Hendrix v. Norris , 81 F.3d 805, 807

(8th Cir. 1 996), in which that court announced:

Rather than breaching its agreement

. . ., the state scrupulously honored the plea

bargain: the state requested that Hendri x serve his state sentences

concurrently with his federa l sentence,

and the state court entered such an

order. That federal prosecutors did not

make a sim

ilar request in federal court

does not mean that the state breached its

plea agreement; “state prosecut o rs

cannot bind federal prosecutors without

the latter’s knowledg e and consent.”

United S tates v. Fuzer , 18 F.3d 517,

520 (7th Cir. 1994). Neither is the state

court responsible for the federal court’s

imposition of a consecutive sentence:

th e discretion of a federal sentencing

court cannot be limit

ed by a state

court’s judgment. See United States v.

Adair

, 826 F.2d 1 040, 1041 (11th

Cir.1987) (per curiam) (fed eral court

could impose sentence consecutive t o

state sentence, although state court had

imposed a concurrent sentence).

The circumstances in Hendrix are remarkably similar to those here. The state promised

that Montoya’s state sentence would run concurrently with his federal sentence, and it did;

indeed, his current federal custody is available

as credit against his state sentence. The state

court therefore acted reasonably in denying

habeas on this ground.8

Nor was the promise illusory. If Montoya

were paroled from state custody (indeed, as he

was by the federa l district court a quo )

, he

would have been transferred to federal custody

pursuant to the federal deta iner arrangement.

Time spent in federal prison then would then

have been credite d t o his state sentence.

Granted, only then w o uld there have been

another sentence with which Montoya’s state

sentence could have run concurrently, but that

was enough to render the promise not illusory.

B.

Failure to explain the distinction to Montoya between state courts and prosecutors on the

one hand, and federal courts and pro secutors

on the other, would constitute sufficient cause

for habeas relief, for we do not expect a

defendant “instinctively to a ppreci ate the

allocation of state and federal prosecuting and

sentencing authority.” F inch v. Vaughn

, 67

F.3d 909, 915 (11th Cir. 1995). Thus, if in the

course of his state proceedings Montoya was

misled int o believing that his state plea would

bind the federal court and guarantee t hat his

state and fed eral sentences would run

concurrently, his plea was entered i n to

involuntarily

and thus “unconstitutionally

induced in violation of his due process rights.”

Id. at 916.

A court sitting in habeas review should not,

however, light ly find misre presentation in a

plea agreement. The various advantages of the

plea bargaini ng syst em “can be secured . . .

only if dispositions by guilty plea are accorded

a great measure of finality.” B lackledge v

. Allison

, 431 U .S. 63, 71 (1977). Thus, “the

representations of the defendant, his lawyer,

and the prosecutor at [the o riginal plea

hearing], as well as any findings mad e by the

judge accepting the plea, constitute a

formidable barrier in any subsequent collateral proceedings. Solemn declarations in open

court carry a strong presumption of veri ty.”

Id. at 74.

O n habeas review, the state court rejected

Montoya’s claim that the agreement was misrepresented to him. Looking at the exchange

between the court, Montoy a, and his counsel,

one reasonably could disagree with the state

court’s determination that Montoya had

entered into the pl ea agreement knowingly,

voluntarily, and intelligently. To be sure,

“[t]he l aw o f this Circuit . . . holds that the

defendant’s subjective belief alone is not

sufficient to invalidate a

guilty plea.” 1 2 Thus

Mo nt oya must show that the plea agreement

had been objectively misrepresented to him.

Were this d e novo review, federal habea s

relief arguably mi g ht be warranted. The

sentenc ing court merely explained that he

could not bind the federal court. The court did

not articulate, for example, what it was that

the agreement did provi de 

### SS namely,

concurrent senten c ing effective only upon a

parole release from state custody into feder a l

custody. That is, the state court explained, “I

can’t bind the federal judge to do anything.

But what I am saying is that . . . you will be

given credit on this sentence with the time you

serve in federal court.” But the court did not

go on t o say, for example, that “you will be

12 Matthews v. United States

, 569 F.2d 94 1

, 94 3 (5th Cir. 1978). C

f. Self v. Blackburn

, 751

F.2d 789, 7 93 (5th Cir. 1985) (“Self’s

‘und erstanding’ . . . that he would serve only ten

years and six months of a life sentence

, does not

constitute a promise or a plea bargain, and hence

his continued confine m ent does not demonstrate

that a plea bargain was violated. It, therefore, does

not undermine the voluntariness of his guilty

plea.”).9

given credit on this sentence with the time you

serve in federal court only should you be

released into federal custody prior to the end

of your state sentence .”

The state sentencing c o urt’s admonitions

therefore mi ght not have been enough to explain the true terms of the agreement,

particularly in lig ht o f Montoya’s assurance

from counsel that he would be able to obtai n

concurrent sentenci n g as he understood it.

One in his shoes might reasonably have

assumed, then, that fully concurrent

sentencing, though not yet confirmed, was all

but a done deal 

### SS

just as the plea agreement

between Montoya and the prosecutor,

requiring the ultimate approval of the state

court, had once been all but complete. Indeed,

Montoya might have reasonably believed that,

just as with his plea agreement with the state,

from which he might have withdrawn had the

state court rejected it, so too could he have

withdrawn from his state plea had the federal

court subjected him to consecutive sentencing,

as it later did.

But the deferential review required under

AEDPA, forbidding state courts only from unreasonable applications of clearly established

federal law as determined by the Supreme

Court, constrains us from interfering with the

state criminal process by granting federal habeas relief in this case. In H endrix

, 81 F.3d at

807-08, the court reasoned as follows:

We disagree with the district court’s

conclusion that Hendrix’s guilty plea in

the state court was invalid. We assume,

without accepting, that the state court’s

apparent fa ilure to warn Hendrix that

the federal court need not impose a concurrent sen t ence could result in an

invalid guilty plea. S ee, e .g., Finch v. Vaughn

, 67 F.3d 909, 916 (11th Cir.

1995) (habeas pe t itioner’s plea-bargained guilty plea in state court was involuntary because no one had explained

that t he federal court could reject the

state court’s imposition of concurrent

state and federal sentences).

The state court in fact did warn Montoya

that the plea agreement boun d only the state

court. A fortiori , his plea agreement was entered into voluntarily and knowingly.

IV.

To show that he has suffered from

unconstitutionally ineffective assistance of

counsel, a habeas petitioner must establish two

elements:

First, the defendant must show that

counsel’s performance was deficient.

This requires showing that counsel made

errors so serio u s that counsel was not

functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment.

Second, the defendant must s how that

the deficient performance prejudiced the

de f ense. This requires showing that

counsel’s errors were so se rious as to

deprive the defendant of a f air trial, a

t rial whose result is reliable. Unless a

defendant makes both s ho wings, it

cannot be said that the conviction or

. .

. sentence resulted from a breakdown in

the adversary process that renders the

result unreliable.[ 13 ]

13 Strickland v. Washington

, 466 U.S. 668, 687

(1984). S ee also Hill v. Lockhart

, 474 U.S. 52, 57

(1985) (“Although our decis ion in S trickland v.

Washington dealt with a claim of ineffective assistance of counsel in a capital sentencing proceeding,

(continued...)10

The habeas petitioner has the burden to prove

ineffectiveness by a prepon derance of the

evid ence. S ee Martin v. Maggio

, 711 F.2d

1273, 1279 (5th Cir. 1983).

With respect to the second , “prejudice”

prong, “a court making the prejudice inquiry

must ask if the def

endant has met the burden

of showing that the decision reached would

reasonably likely have been different absent the

errors.” W

ashington

, 466 U.S. at 696. “To

satisfy the ‘prejudice’ requirement, the

defendant must show that there is a reasonable

p r obability that, but for counsel’s errors, he

would not have pleaded guilty and would have

insiste d on going to trial.” H ill

, 474 U.S.

at 59.

The trial court explained to Montoya that it

had no power to bind the federal court, to

which Montoya responded: “I understand.”

The state court was not unreasonab le in

concluding that any defi ciency in Hardwick’s

representation was constitutionally cur e d at

that time. Mo ntoya therefore cannot satisfy

the prejudice p r ong for an ineffective

assi s tance counsel of claim sufficiently to

justify federal habeas relief under AEDPA.

V.

At most, this was a close case for the Texas

Court of Criminal Appeals, sitting on habeas

review, to determine whether the state

sentencing court adequately had explained the

terms of the agreement t o defeat Montoy a’s

dual claims of unknowing plea and prejudice

by ineffective a ssistance of counsel. The closeness of that case, however, makes plain

t h e path we must take on federal habeas

review pursua nt to AEDPA 

### S S that is,

deference to the state court’ s reasonable

application of clearly established federal law as

determined by the Supreme Court . The

federal district court may have regretted its

decision t o sentence Montoya consecutively

with the state sentence, but federal habeas

review is not an approp riat e remedy, for this

petition requests a degree of interference with

the state crim

i nal justice system that AEDPA

expressly forbids.

REVERSED.

13 (...continued)

. . . the same two-part standard seems to us

applicable to inef

fective-assistance claims arising

out of the plea process.”).