IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________

m 99-50190

_______________

JESSE MONTOYA,

Petitioner-Appellee,

VERSUS

GARY L. JOHNSON,

DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

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 pleaded guilty, for separate

criminal acts, to federal charges of carjacking

and state charges of aggravated robbery,Jesse

Montoya no doubt would have preferred that

hisfederal and state terms ofimprisonment 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 federalsentence with

which Montoya’s state sentence could run, it

was left to the federal court to decide whether

to allow his federal sentence to run

concurrently with his previously-issued state

sentence. Montoya’s hopes were thus largely

dashed when the federal court subsequently
2

sentenced him to a consecutive term of

incarceration, for that meant that his state

sentence would run concurrently only if he

were prematurelydischarged fromstate prison

and subsequently detained for federal

incarceration.

In retrospect, Montoya would have been

better served had he been sentenced in federal

court 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 ground that

that plea was premised on the state’s promise

of concurrent sentencing, failure of which rendered his plea unknowingly and involuntarily

submitted. Alternatively, he complains of unconstitutionally ineffective counsel.

The state courts have rejected these

arguments, concluding that Montoya was

made adequately aware of the terms of his

state plea agreement in open court, thereby

rendering his plea voluntary and curing any

ineffectiveness of counsel. Therefore,

whatever we might have thought ofMontoya’s

claims if we were ruling on them in the first

instance, principles of federalism, comity, and

finalityofjudgments, impressed upon us bythe

Antiterrorismand Effective Death PenaltyAct

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

Consequently, we REVERSE.

I.

Before imposition of the state sentence,

Montoya had pleaded guilty to carjacking

charges in federal court. He had not been

sentenced on the federal charge when he

pleaded guilty to, and faced sentencing for,

aggravated robbery in Texas state court.

A.

Montoya’s plea agreement with the state

provided that his twelve-year state sentence

would be imposed concurrently with his

pending federal sentence.1 That is, the state

agreed to allow him to use any time spent

serving a federalsentence as credit against his

state sentence. Accordingly, Texas law

authorizes a state court to sentence a

defendant to a term of imprisonment to be

served concurrently with another

sentenceSSbut only if the other 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.

Clifford Hardwick, Montoya’s attorney in

the state prosecution, advised him to plead

guilty in state court, even though federal

sentencing had not yet taken place, rather than

to seek a continuance and delay pleading and

sentencing in state court until after federal

sentencing, because the policy of the state

judge was either to accept a plea or proceed

1 The written plea agreement 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, charged against me in this cause. . . .

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

Twelve (12) Years IDTDCJ, concurrent with

Federal sentence.”

2

See TEX.CODECRIM. P. art. 42:08(a) (stating

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

the second and subsequent convictions may either

be that the sentence imposed or suspended shall

begin when the judgment and the sentence imposed

or suspended in the preceding conviction has

ceased to operate, or that the sentence imposed or

suspended shall run concurrently with the other

case or cases, and sentence and execution shall be

accordingly”).
3

immediately to trial. An earlier opportunity

for federal sentencing had been delayed

because Montoya’sfederal 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

Honor, the State had agreed that that

sentence . . . run concurrent with his

federal offense, which is to be sentencedSShe 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 item three here.

Concurrent with the federal sentence. 

Now, you understand, Mr. Montoya, I

can’t bind the federal judge to do

anything. But what I am saying is that

our timeSSyou will be given credit on

this sentence with the time you serve in

federal court. Now, what they do, I am

not sure. I don’t know about how

theySSwhat 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 that I will not

exceed the agreed recommendationasto

punishment. . . . [T]welve years to be

served concurrent with the federal

sentence.

Montoya had previously demonstrated at

least some ability to comprehend and exercise

hisrights 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 responded that he had not,

thereby allowing the court to respond and to

ensure protection of his rights to due process

by allowing him the opportunity to read that

form.

B.

Subsequently, the federal court sentenced

Montoya to a seventy-eight-month federal

sentence, to be served consecutively 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 run 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,

therefore, until after his release from state

3 The decision to run federal sentences

concurrently or consecutively with pending

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

multiple terms of imprisonment are imposed on a

defendant at the same time, or if a term of

imprisonment is imposed on a defendant who is

already subject to an undischarged term of

imprisonment, the terms may run concurrently or

consecutively, except that the terms may not run

consecutively for an attempt and for another

offense that was the sole objective of the attempt.

Multiple terms of imprisonment imposed 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 timesrun consecutively unless

the court orders that the terms are to run

concurrently.”).
4

custodySSas in the case of parole or habeas

relief from state imprisonment (which the

federal court would later grant).

C.

Montoya first filed a habeas petition in state

court, challenging his state sentence. He argued that TEX. CODE CRIM. P. art. 26:13 required the trial court to admonish him that the

terms of the plea agreement regarding concurrent sentencing was not binding on the federal court4

and that, because of the lack of

warning by the trial court or his counsel, his

guilty plea 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 Court of Criminal Appeals rejected the petition without written order,

thereby accepting the trial court’sfinding 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 agreementSSspecifically, that court’slack

of power to bind the federal court to

concurrent sentencing. The state habeas court

also concluded there was no harm from any

ineffective assistance of counsel and that the

promises made to Montoya were not illusory:

His federal sentence was to run consecutively

with hisstate sentence, while hisstate 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 would trigger his federal

imprisonment. Only under those particular circumstances would his time in federal

imprisonment be credited by the state. But

that benefit was enough for the state court to

support the plea agreement against a habeas

challengeSSeven though other evidence

established that Montoya sought fully

concurrent sentences and that Hardwick had

told him that the agreement guaranteed fully

concurrent sentences, despite counsel’s

awareness that Texas law did not provide as

much because the federalsentence had not yet

been imposed.

D.

In early 1997SSafter the April 24, 1996, effective date of AEDPASSMontoya filed the

instant petition for federal habeas relief before

the same judge who had sentenced him on the

federal carjacking charge. The federal court

granted the habeas petition and ordered Montoya’s immediate release from Texas custody

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

court noted that, at the time it sentenced Montoya on the federal charge, the judge had held

4

See TEX.CODE CRIM. P. art. 26:13(a) (“Prior

to accepting a plea of guilty . . . the court shall admonish the defendant of: (1) the range of the

punishment attached to the offense”). See also

TEX. CODE CRIM. P. art. 26:13(c) (“In

admonishing the defendant as herein provided,

substantial compliance by the court is sufficient,

unless the defendant 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 TEX. CODE CRIM. 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 everything in his power to ensure a

concurrent federal sentence.

The court then gave the state 120 days to

allow Montoya to withdraw his plea and

choose either to enter a new plea or proceed

to trial. The court stayed its order pending

this appeal.

II.

Before enactment of AEDPA, “a federal

court entertaining a state prisoner’s application

for habeas relief . . . exercise[d] its

independent judgment when deciding both

questions of constitutional law and mixed

constitutional questions (i.e., application of

constitutional law to fact). In other words, a

federal habeas court owed no deference to a

state court’s resolution of such questions of

law or mixed questions.”6

Embodying the principles of federalism,

comity, and finality of judgments,7 AEDPA

substantially restricts 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.9In addition, however, AEDPA directs

that

[a]n application for a writ of 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 claimSS

 (1) resulted in a decision that

was contrary to, or involved an

unreasonable application of,

clearlyestablished Federallaw,

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. Taylor, 120 S. Ct. 1495, 1516

(2000) (O’Connor, J., concurring). See also

28 U.S.C. § 2254(d) (West 1994).

7

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

(1989) (“Habeas corpus has always been a

collateral remedy, providing an avenue for

upsetting judgments 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

controversy 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 all legal standards in

(continued...)

7

(...continued)

effect when a habeas petition is filed.”) (quoting

Mackey v. United States, 401 U.S. 667, 682-83

(1971) (Harlan, J., concurring)). See also

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

concurring) (“It is perfectly clearthat AEDPAcodifies Teague to the extent that Teague requires

federal habeas courts to deny relief that is

contingent 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 courts 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

merely on a finding of error by a state court,

but only if a state court “arrives at a

conclusion opposite to that reached by [the

Supreme Court] on a question of law or if the

state court decides a case differently than [the

Supreme Court] has on a set of materially

indistinguishable facts,” Williams, 120 S. Ct.

at 1523SSa contention Montoya does not

make.

Absent such a direct conflict with the

Supreme Court, the writ is available only if the

state court “unreasonably 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 State court

proceeding.”10 The standard is one of

objective reasonableness.11

Montoya claims, first, that his guilty plea

wasinduced by a breached or illusory promise

from the state and therefore was not entered

into knowingly, voluntarily, and intelligently,

as the Due Process Clause requires. He

additionally claims that counsel was

constitutionallyineffective byfailing to explain

the illusory promise to him.

Although the Texas state courts rejected

both claims on petition for state habeas relief,

the federal court granted relief on both

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

III.

A guilty plea 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). See 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 presumed to be correct. The

applicant shall have the burden of rebutting the

presumption of correctness by clear and convincing

evidence.”).

11 The state makes reference to a standard of

“reasonable jurists,” 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 SupremeCourt rejected

that standard in favor of a purely objective

standard of reasonableness. See Williams, 120 S.

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

overlay [ofreasonable jurists] on the ‘unreasonable

application’ clause was erroneous. . . . Stated

simply, a federal habeas court making the

‘unreasonable application’ 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 relevant federal law in the same manner the

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

‘all reasonable jurists’ standard would tend to

mislead federal habeas corpus courts by focusing

their attention on a subjective inquiry rather than

on an objective one.”).
7

A plea of guilty entered by one fully

aware of 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 by threats (or

promises to discontinue improper

harassment), misrepresentation

(including unfulfilled or unfulfillable

promises), or perhaps by promises that

are by their nature improper as having

no proper relationship to the

prosecutor’s business (e.g. bribes).

Brady v. United States, 397 U.S. 742, 755

(1970) (emphasis added). In other words,

where a plea “restsin 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, such promise must be

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

257, 262 (1971). Otherwise, “[w]hen a

defendant pleads guilty on the basis of a

promise by his defense attorney or the

prosecutor, whether or not such promise is

fulfillable, breach of that promise taints the

voluntariness of his plea.” McKenzie 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 to 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 promiseSSand that the state court

unreasonably found to the contrarySSwould

warrant federal habeas relief. Alternatively, if

the terms of the agreement, though fulfilled,

were misrepresented to MontoyaSSand if the

state court unreasonably found to the contrarySShabeas relief also would be justified.

A.

First, we conclude that the state committed

no breach of the 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. 1996), in which that court announced:

Rather than breaching its agreement . . .,

the state scrupulously honored the plea

bargain: the state requested that Hendrix serve his state sentences

concurrently with his federal sentence,

and the state court entered such an

order. That federal prosecutors did not

make a similar request in federal court

does not mean that the state breached its

plea agreement; “state prosecutors

cannot bind federal prosecutors without

the latter’s knowledge and consent.”

United States 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:

the discretion of a federal sentencing

court cannot be limited by a state

court’s judgment. See United States v.

Adair, 826 F.2d 1040, 1041 (11th

Cir.1987) (per curiam) (federal court

could impose sentence consecutive to

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 fromstate custody (indeed, as he

was by the federal district court a quo), he

would have beentransferred to federal custody

pursuant to the federal detainer arrangement.

Time spent in federal prison then would then

have been credited to his state sentence.

Granted, only then would 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 prosecutors

on the other, would constitute sufficient cause

for habeas relief, for we do not expect a

defendant “instinctively to appreciate the

allocation ofstate and federal prosecuting and

sentencing authority.” Finch v. Vaughn, 67

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

course of his state proceedings Montoya was

misled into believing that his state plea would

bind the federal court and guarantee that his

state and federal sentences would run

concurrently, his plea was entered into

involuntarily and thus “unconstitutionally

induced in violation of his due processrights.”

Id. at 916.

A court sitting in habeasreview should not,

however, lightly find misrepresentation in a

plea agreement. The various advantages of the

plea bargaining system “can be secured . . .

only if dispositions by guilty plea are accorded

a great measure of finality.” Blackledge v.

Allison, 431 U.S. 63, 71 (1977). Thus, “the

representations of the defendant, his lawyer,

and the prosecutor at [the original plea

hearing], as well as any findings made 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 verity.”

Id. at 74.

On habeas review, the state court rejected

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

between the court, Montoya, and his counsel,

one reasonably could disagree with the state

court’s determination that Montoya had

entered into the plea agreement knowingly,

voluntarily, and intelligently. To be sure,

“[t]he law of this Circuit . . . holds that the

defendant’s subjective belief alone is not

sufficient to invalidate a guilty plea.”12 Thus

Montoya must show that the plea agreement

had been objectively misrepresented to him.

Were this de novo review, federal habeas

relief arguably might be warranted. The

sentencing 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 provideSSnamely,

concurrent sentencing effective only upon a

parole release from state custody into federal

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 thissentence with the time you

serve in federal court.” But the court did not

go on to say, for example, that “you will be

12 Matthews v. United States, 569 F.2d 941,

943 (5th Cir. 1978). Cf. Self v. Blackburn, 751

F.2d 789, 793 (5th Cir. 1985) (“Self’s

‘understanding’ . . . 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 confinement does not demonstrate

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

not undermine the voluntariness of his guilty

plea.”).
9

given credit on thissentence 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 court’s admonitions

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

particularly in light of Montoya’s assurance

from counsel that he would be able to obtain

concurrent sentencing 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 dealSSjust 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

courtsubjected himto consecutive sentencing,

as it later did.

But the deferential review required under

AEDPA, forbidding state courts only fromunreasonable 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 Hendrix, 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 failure to warn Hendrix that

the federal court need not impose a concurrent sentence could result in an

invalid guilty plea. See, e.g., Finch v.

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

1995) (habeas petitioner’s plea-bargained guilty plea in state court was involuntary because no one had explained

that the 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 bound 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.

Thisrequiresshowing that counselmade

errors so serious that counsel was not

functioning as the “counsel” guaranteed

the defendant by the Sixth Amendment.

Second, the defendant must show that

the deficient performance prejudiced the

defense. This requires showing that

counsel’s errors were so serious as to

deprive the defendant of a fair trial, a

trial whose result is reliable. Unless a

defendant makes both showings, 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). See also Hill v. Lockhart, 474 U.S. 52, 57

(1985) (“Although our decision in Strickland v.

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

(continued...)
10

The habeas petitioner has the burden to prove

ineffectiveness by a preponderance of the

evidence. See 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 defendant has met the burden

of showing that the decision reached would

reasonablylikelyhave beendifferent absent the

errors.” Washington, 466 U.S. at 696. “To

satisfy the ‘prejudice’ requirement, the

defendant must show that 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.” Hill, 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 unreasonable in

concluding that any deficiency in Hardwick’s

representation was constitutionally cured at

that time. Montoya therefore cannot satisfy

the prejudice prong for an ineffective

assistance 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 to defeat Montoya’s

dual claims of unknowing plea and prejudice

by ineffective assistance of counsel. The

closeness of that case, however, makes plain

the path we must take on federal habeas

review pursuant to AEDPASSthat is,

deference to the state court’s reasonable

application of clearlyestablished federallaw as

determined by the Supreme Court. The

federal district court may have regretted its

decision to sentence Montoya consecutively

with the state sentence, but federal habeas

review is not an appropriate remedy, for this

petition requests a degree of interference with

the state criminal justice system that AEDPA

expressly forbids.

REVERSED.

13(...continued)

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

applicable to ineffective-assistance claims arising

out of the plea process.”).