NOT RECOMMENDED FOR PUBLICATION

File Name: 22a0332n.06

No. 20-6102

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

EMMANUEL BIBB HOUSTON,

Petitioner-Appellant,

v. 

SHAWN PHILLIPS, Warden,

Respondent-Appellee.

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ON APPEAL FROM THE 

UNITED STATES DISTRICT 

COURT FOR THE EASTERN 

DISTRICT OF TENNESSEE

Before: BATCHELDER, COLE, and GIBBONS, Circuit Judges.

BATCHELDER, J., delivered the opinion of the court in which GIBBONS, J., joined. 

COLE, J. (pg. 16), delivered a separate opinion concurring in the judgment.

ALICE M. BATCHELDER, Circuit Judge. Emmanuel Bibb Houston is a Tennessee 

prisoner seeking federal habeas relief pursuant to 28 U.S.C. § 2254. Ten years ago, during his 

state proceedings, he and the State made several attempts to reach a plea agreement. But 

negotiations reached an impasse when the State was adamant that Houston serve 85 percent of a 

twelve-year sentence, and Houston was adamant that he serve no more than 30 percent. The case 

went to trial, the jury convicted Houston, and the court sentenced him to twenty-three years in 

prison. 

In this federal habeas petition, Houston claims—for the first time—that he would have 

accepted the State’s final plea offer had his trial counsel not made two inaccurate remarks about 

the strength of the State’s case. The district court denied Houston’s petition. We affirm. 
No. 20-6102, Houston v. Phillips

2

I.

In 2013, a Tennessee jury found Houston guilty of especially aggravated kidnapping, 

especially aggravated burglary, and facilitation of especially aggravated robbery. State of 

Tennessee v. Houston, No. M2013-01177-CCA-R3-CD, 2014 WL 2547795, at *1, *5 (Tenn. Crim. 

App. June 4, 2014), perm. app. denied (Tenn. June 15, 2015). The conviction was based on 

evidence that, in 2012, Houston entered Gregory Marlin’s home and struck Marlin repeatedly with 

a baseball bat, knocking him to the ground and inflicting severe injuries. Id. at *1–4. Houston 

“pinned” Marlin down by pressing the bat to his neck, while one of Houston’s several accomplices 

stole items from Marlin’s home. Id. at *1. Another accomplice held a gun to the back of Marlin’s

neck, and Houston told him to “[g]o on and kill [Marlin].” Id. The accomplice did not shoot 

Marlin, so Houston “hogtied” Marlin, and they “threw” him into the bathroom and shut the door. 

Id. at *1–2. 

After the jury’s verdict, the trial court reduced Houston’s especially-aggravated-burglary 

conviction to aggravated burglary and sentenced him to twenty-three years in prison. Id. at *5. 

Houston unsuccessfully appealed his conviction and sentence.1 Id. at *10.

Pretrial Negotiations. Prior to trial, Houston’s counsel and the prosecutor “worked 

diligently” and “tried many times” to reach a plea agreement. Houston told his trial counsel that 

he would plead guilty in exchange for a twelve-year sentence with parole eligibility after serving 

30 percent of his sentence. But the prosecutor never offered him that good a deal. The prosecutor’s 

most lenient offer was a twelve-year sentence with 85 percent release eligibility. Houston rejected 

that offer and opted for trial. All five of Houston’s co-defendants accepted plea deals. One co1 Houston’s trial counsel also served as his appellate counsel. Based on his appellate representation in the 

case, Houston’s counsel received a censure from the Board of Professional Responsibility. 
No. 20-6102, Houston v. Phillips

3

defendant, Deonta Twilley, accepted a deal to serve an eight-year sentence with 30 percent release

eligibility. Although Twilley faced the same charges Houston did, he ultimately pleaded guilty to 

especially aggravated burglary and robbery. 

State Habeas Petition. Represented by new counsel, Houston filed a petition for 

postconviction relief in state court.2 The petition raised numerous ineffective-assistance-ofcounsel claims, none of which is relevant to this appeal. The trial court held an evidentiary hearing 

and denied Houston relief on all grounds. Houston appealed, and the Tennessee Court of Criminal 

Appeals affirmed. Houston v. State, No. M2016-00467-CCA-R3-PC, 2017 WL 2558812 (Tenn. 

Crim. App. June 13, 2017), perm. app. denied, (Tenn. Oct. 4, 2017). The Tennessee Supreme 

Court denied Houston leave to appeal. Id.

Federal Habeas Petition. Houston then filed the present petition for habeas relief in 

federal court pursuant to 28 U.S.C. § 2254. He again claimed that his trial counsel was ineffective 

in various respects and the evidence was insufficient to support his conviction for especially

aggravated kidnapping. For the first time, though, one of Houston’s ineffective-assistance-ofcounsel claims challenged his trial counsel’s pretrial assessment of the prosecutor’s case. 

According to Houston, his trial counsel told him (1) that “he believed the [prosecutor’s] case to be

one of aggravated assault,” and (2) that the especially-aggravated-kidnapping charge against 

Houston was “foundless.” Testimony from the state court’s postconviction relief hearing serves 

as the sole evidence of these two remarks. Houston’s trial counsel testified at the hearing: 

Q: Did you tell [Houston] that at most this was an aggravated assault case? 

A: I thought that was our case. I don’t remember saying that, “At most, this is an 

aggravated assault case.”

2 Houston originally filed a pro se petition for postconviction relief. 
No. 20-6102, Houston v. Phillips

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Q: Did you tell [Houston] that all your colleagues agreed with your assessment in 

that respect? 

A: Yes, I probably did, because I think that was the general consensus that the 

aggravated – especially aggravated kidnapping charge was found-less.

Q: Now, I heard you say that you did give Mr. Houston your advice, that you 

thought, “Hey, at worse this really just looks like an aggravated assault perpetrated 

against [the victim]?”

A: Yes.

Houston testified at the hearing: 

Q: Okay. Did [trial counsel] tell you throughout all phases of this, “Don’t worry 

about things, this is just an aggravated assault”? 

A: Every time we come to the courthouse, he said, “Man, these guys think this is a 

joke, that you – you actually did a couple of guys a favor by beating that character 

up. And we all just think that this is a big aggravated assault. Don’t worry about 

it.”

At the same hearing, however, Houston’s trial counsel testified that he did not guarantee any trial 

result or promise that Houston would be convicted of only aggravated assault. Trial counsel also

testified that he explained to Houston the sentencing exposure Houston faced if he went to trial. 

The district court denied Houston’s § 2254 petition and declined to issue a certificate of 

appealability, explaining that Houston’s new ineffective-assistance claim lacked merit. The court 

noted that Houston’s procedural default was “arguably” excused but nonetheless held that 

Houston’s trial counsel was “not ineffective for sharing his opinion about the case with [Houston], 

and nothing in the record suggests that this statement prejudiced” Houston. Houston timely 

appealed. We granted Houston a certificate of appealability on this claim. 

II.

Houston petitions for habeas relief pursuant to 28 U.S.C. § 2254 of the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDPA). He claims that he was denied his constitutionally 

guaranteed right to counsel under the Sixth Amendment because two remarks made by his trial 

counsel in 2012 misinformed him about whether to accept a plea deal, and that he would have 
No. 20-6102, Houston v. Phillips

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taken a plea deal had he been given correct advice. Houston also argues that, even though his 

claim is procedurally defaulted because he never raised it in state court, we should excuse the 

default because his state postconviction counsel was also ineffective. 

For the reasons below, we disagree. 

A. Procedural Default

In general, a federal court reviewing the lawfulness of a state prisoner’s detention may 

grant habeas relief only if the prisoner is being held “in custody in violation of the Constitution or 

laws or treaties of the United States.” 28 U.S.C. § 2254(a); see Trevino v. Thaler, 569 U.S. 413, 

421 (2013). Our review is also circumscribed by our deference to state-court judgments that rest 

upon independent and adequate state-procedural grounds, Coleman v. Thompson, 501 U.S. 722, 

729–31 (1991), and by the congressional mandate that, generally, petitioners exhaust available 

state remedies before pursing federal habeas relief, 28 U.S.C. § 2254(b)(1)(A); see Johnson v. 

Bauman, 27 F.4th 384, 388 (6th Cir. 2022). Thus, we normally decline to exercise habeas review 

when a petitioner fails to raise a claim in state court and cannot do so now due to a state procedural 

rule. Coleman, 501 U.S. at 731–32. Such a claim is considered “procedurally defaulted” and 

principles of comity, finality, and federalism counsel against disturbing a state-court conviction

without the state court’s having had the opportunity to first address the claimed error. Id. at 730–

32, 750; see Davila v. Davis, 137 S. Ct. 2058, 2064 (2017).

In limited circumstances, however, a petitioner may overcome this hurdle if he can 

establish “cause” to excuse the default—such as when there is an attorney error—and that he 

suffered “prejudice” from the asserted error. Davila, 137 S. Ct. at 2064–65 (quoting Wainwright

v. Sykes, 433 U.S. 72, 84 (1977)). In this scenario, to qualify as “cause,” the attorney error must 

amount to constitutionally ineffective assistance of counsel. Id. at 2065. And, until some years 
No. 20-6102, Houston v. Phillips

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ago, an attorney error in state postconviction proceedings did not qualify as “cause” because a 

petitioner has no constitutional right to counsel in those proceedings. Coleman, 501 U.S. at 752–

53. Nevertheless, in Martinez v. Ryan, 566 U.S. 1 (2012), the Supreme Court created an equitable

“qualification” of this rule. Id. at 15–17. It applies where state procedural law requires, or 

effectively requires, petitioners to raise claims of ineffective assistance of trial counsel in a state 

postconviction proceeding, rather than on direct appeal. Id. at 17; see Trevino, 569 U.S. at 429

(expanding Martinez’s scope). In those states, ineffective assistance of postconviction counsel

may establish “cause” to excuse the procedural default of a petitioner’s underlying ineffectiveassistance claim against his trial counsel. Martinez, 566 U.S. at 14. Importantly, the petitioner 

must also demonstrate that his defaulted ineffective-assistance claim is “substantial,” “which is to 

say that . . . [it] has some merit.” Id. The Martinez framework applies to Tennessee’s procedures. 

Sutton v. Carpenter, 745 F.3d 787, 792–95 (6th Cir. 2014). We review de novo whether a claim 

is barred by procedural default. Hodges v. Colson, 727 F.3d 517, 529 (6th Cir. 2013). 

Houston argues that his defaulted claim falls under the purview of Martinez. He contends

that “cause” and “prejudice” exist because his state postconviction counsel failed to raise the “bad 

advice” claim that Houston now pursues. According to Houston, his postconviction counsel knew

to raise such a claim in the state postconviction petition because, during the postconviction hearing, 

he questioned Houston’s trial counsel about the pretrial remarks he made to Houston. Houston 

also faults his postconviction counsel for not further developing the claim during the hearing. The 

State does not challenge Houston’s cause-and-prejudice argument, but instead focuses on 

Houston’s underlying ineffective-assistance-of-trial-counsel claim, arguing that the claim is not 

“substantial.” 
No. 20-6102, Houston v. Phillips

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We have good reasons to doubt that Houston’s procedural default is excused by way of his 

postconviction counsel’s ineffectiveness under Martinez.

3

 But we need not fully address those 

reasons because the State is correct: the record and our precedent squarely foreclose Houston’s 

underlying claim against his trial counsel. 

B. Ineffective Assistance of Trial Counsel

Houston’s principal ineffective-assistance claim against his trial counsel fails under 

Strickland v. Washington, 466 U.S. 668 (1984). To succeed on this claim, Houston must establish 

(1) that his counsel’s performance was deficient and (2) that the deficient performance prejudiced 

his defense. Id. at 687. Counsel’s performance is deficient if it is objectively unreasonable under 

prevailing professional norms. Id. at 687–88; see Tackett v. Trierweiler, 956 F.3d 358, 373 (6th 

Cir. 2020). In other words, the attorney error must be “so serious that counsel was not functioning 

as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Strickland, 466 U.S. at 687. 

“[A] court must indulge a strong presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance.” Id. at 689. The test for prejudice is whether “there is a 

reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding 

would have been different.” Id. at 694. 

3 For example, it appears that Houston’s postconviction counsel made “a deliberate, tactical decision not to 

pursue” this particular ineffective-assistance-of-trial-counsel claim in postconviction proceedings, which 

“is the very antithesis of the kind of circumstance that would warrant excusing a defendant’s failure to 

adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal cases.” Smith v. 

Murray, 477 U.S. 527, 534 (1986). Indeed, Houston emphasizes in his brief that his postconviction

counsel’s decision was “not accidental.” Moreover, Houston does not argue that this defaulted claim was 

“clearly stronger” than the twelve other ineffective-assistance claims that his postconviction counsel did 

raise in state postconviction proceedings. See Sullivan v. United States, 587 F. App’x 935, 942 (6th Cir. 

2014) (“[O]nly when ignored issues are clearly stronger than those presented, will the presumption of 

effective assistance of [appellate] counsel be overcome.” (quoting Joshua v. DeWitt, 341 F.3d 430, 441 (6th 

Cir. 2003))).
No. 20-6102, Houston v. Phillips

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When considering a denial of habeas relief under 28 U.S.C. § 2254, we review the district 

court’s legal conclusions de novo and its factual findings for clear error. England v. Hart, 970 

F.3d 698, 706 (6th Cir. 2020). And when, as here, no state court has “adjudicated [the petitioner’s

claim] on the merits,” we do not apply § 2254(d)’s deferential standard. Bies v. Sheldon, 775 F.3d 

386, 395 (6th Cir. 2014).

1. Performance

Houston’s trial counsel advised Houston that the prosecutor’s case was simply one of

aggravated assault and that the especially-aggravated-kidnapping charge was “foundless.”

Houston says that because this advice was ultimately incorrect, it amounts to constitutionally 

deficient performance. We cannot agree. 

An attorney’s professional prediction that does not become reality is not necessarily 

deficient performance. Lafler v. Cooper, 566 U.S. 156, 174 (2012) (“[A]n erroneous strategic 

prediction about the outcome of a trial is not necessarily deficient performance.”). Here, Houston’s 

trial counsel never guaranteed Houston a particular result at trial, and he fully advised Houston of 

the charges and his potential sentencing exposure if he were to reject the plea offer. Therefore, 

counsel’s pretrial remarks were not objectively unreasonable when taken in context. See Logan v. 

United States, 910 F.3d 864, 872 (6th Cir. 2018) (holding that a trial counsel’s “erroneous . . . 

prediction” of the case at the plea bargaining stage was “not necessarily deficient performance” 

because the petitioner was nevertheless “given all he needed to make an informed decision on the 

plea offer”); Ryal v. Lafler, 508 F. App’x 516, 522 (6th Cir. 2012) (finding no ineffective 

assistance where the petitioner was made “aware of the charges and the plea consequences” even 

though his trial counsel’s pre-plea deal “prediction [about the likely outcome of the case] turned 

out to be incorrect”). 
No. 20-6102, Houston v. Phillips

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Houston points to the jury’s “quick[]” two-and-a-half-hour deliberation as evidence of 

counsel’s deficiency. But the length of jury deliberations does not determine whether an attorney’s 

performance falls outside the wide range of reasonable professional assistance. And we must take 

great care to “eliminate the distorting effects of hindsight” when assessing attorney performance. 

Strickland, 466 U.S. at 689.

Houston also attempts to liken his case to Byrd v. Skipper, 940 F.3d 248 (6th Cir. 2019), in 

which we found that counsel’s ineffectiveness deprived the defendant of the opportunity to secure 

a plea deal. Id. at 251. During oral arguments, Houston’s counsel described the present case as 

“Byrd on steroids.” The attorney performance in Byrd, however, is nothing like what occurred in 

this case. In Byrd, the defense counsel made at least three professional errors. First, counsel 

refused to engage in plea negotiations and was “determined to go [to] trial” despite the desire of 

the prosecutor and Byrd to reach a plea agreement. Id. at 251–52. Second, counsel harbored a 

“shocking lack of comprehension regarding the pertinent law,” “convinced Byrd that a guilty plea 

was unnecessary and against his interest,” and “assured Byrd that he would ‘hit a home run’ for 

him by securing an acquittal, and that Byrd would be ‘going home.’” Id. at 253, 257. Finally, and 

perhaps most egregiously, counsel did not explain to Byrd the legal concepts underlying Byrd’s 

case or Byrd’s potential sentencing exposure under the guidelines. Id. at 253, 258. 

Rather than “Byrd on steroids,” this case is Byrd through the looking glass4—nearly the 

opposite happened here. Houston’s trial counsel was very amenable to negotiating a plea deal 

with the prosecutor, and the two of them “worked diligently” and “tried many times” to reach an 

agreement. Counsel did not pressure Houston to reject the prosecutor’s best offer, nor did he 

4 Lewis Carroll, Through the Looking-Glass 121 (Penguin Books 1998) (1872); see Roberts v. Universal 

Underwriters Ins. Co., 334 F.3d 505, 513 (6th Cir. 2003) (Batchelder, J., concurring); United States v. 

Taylor, 142 S. Ct. 2015, 2026 (2022) (Thomas, J., dissenting). 
No. 20-6102, Houston v. Phillips

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guarantee that Houston would be acquitted, or that Houston would receive a short sentence if 

convicted. Instead, unlike the counsel in Byrd, Houston’s counsel properly explained to Houston

the relevant legal concepts and Houston’s potential sentencing exposure if he went to trial. His 

counsel’s pretrial advice was merely his (perhaps overly optimistic) professional assessment of the 

prosecutor’s case. It was not erroneous advice on a matter of law. Cf. Maples v. Stegall, 340 F.3d 

433, 439 (6th Cir. 2003) (finding ineffective assistance where counsel gave “patently erroneous” 

legal advice regarding the appellate consequences of defendant’s guilty plea). This case does not 

present the type of “apparent,” “abundant,” and “blatant” incompetence that counsel displayed in 

Byrd, 940 F.3d at 257. 

Moreover, the art of plea bargaining involves “complex negotiations suffused with 

uncertainty.” Premo v. Moore, 562 U.S. 115, 124 (2011). Thus, an attorney’s professional

assessment based on the facts as he knew them at the relevant time is entitled to deference. Id. at 

125 (explaining that “strict adherence” to Strickland is “essential . . . at the plea bargain stage” due 

to “the potential for the distortions and imbalance that can inhere in a hindsight perspective” and 

the “special difficulties in evaluating” an attorney’s performance that is based on a limited record 

and his “insights borne of past dealings with the same prosecutor or court”); see also Strickland, 

466 U.S. at 689 (“[I]t is all too easy for a court, examining counsel’s defense after it has proved 

unsuccessful, to conclude that a particular act or omission of counsel was unreasonable.”).

Because counsel’s mistaken prediction here does not amount to a “manifest deficiency in light of 

information then available to [him],” Houston cannot satisfy Strickland’s demanding standard to 

prove that he was deprived of effective assistance of counsel. Premo, 562 U.S. at 125.
No. 20-6102, Houston v. Phillips

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2. Prejudice

Nor can Houston establish prejudice. To establish prejudice, Houston must show that there 

is a “reasonable probability” that, but for his counsel’s deficiency, he would have accepted the 

State’s more-favorable plea offer. Strickland, 466 U.S. at 694. “A reasonable probability is a 

probability sufficient to undermine confidence in the outcome.” Id. Houston must also 

demonstrate that the “prosecution would not have withdrawn [the offer] in light of intervening 

circumstances” and that the trial court “would have accepted its terms.” Lafler, 566 U.S. at 164.

The evidence presented here does not establish a reasonable probability that, but for 

counsel’s advice, Houston would have accepted the State’s plea offer to serve a twelve-year 

sentence with an 85 percent release eligibility. Houston argues that his willingness to accept such 

an offer is “not an issue” because he testified: “I told [trial counsel], ‘If I could get a 12 [years] at 

30 [percent], I’d get out of y’all’s way.’” He argues that “[s]urely” he would have accepted the 

same sentence with 85 percent release eligibility had his counsel not been ineffective. But the 

state postconviction hearing tells a different story. 

At the hearing, Houston did not testify that his counsel’s statements played any role in his 

decision to reject the plea offer. And even though Houston gave no account of his specific reasons 

for rejecting the plea offer, it seems that his rejection was rooted in a personal dissatisfaction with 

the release-eligibility percentage, not in a tainted understanding of his case caused by counsel’s 

advice. Houston was adamant that he was willing to serve only 30 percent of whatever sentence 

he received. At one point during the hearing, he explained that he did not want a sentence with 

100 percent release eligibility because he did not “believe [he] did 100 percent worth of a crime.” 

Trial counsel’s testimony confirms Houston’s adamance. Counsel testified, “Mr. Houston was not 

interested at 12 at 85 percent . . . . You know, we’re talking about a gap there, a percentage, but 
No. 20-6102, Houston v. Phillips

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we couldn’t get to an agreement on it.” Counsel later stated, “I’ve tried many times,” after being

asked, “[Y]ou’re kind of in the middle. You can’t make the defendant go up, if he doesn’t want 

to; and you can’t make the State come down, if they don’t want to?” Similarly, counsel agreed

that “it was just a situation where the defendant refused to accept the State’s bottom-line offer, and 

the State refused to accept the defendant’s top-line offer.” Finally, counsel testified:

I know that we enter[ed] into all kinds of negotiations, including amending charges, 

to get to where we want[ed] to be. To get to where we [could] agree on. But there 

wasn’t any number that [Houston] was willing to take above 12, that he ever gave 

me permission to seek. And there wasn’t any number lower than 12 at the 85 

percent, that we ever got to with the State. And [Houston] would not take that.

Thus, according to the hearing testimony, despite counsel’s numerous attempts, Houston was 

insistent that he would not accept a twelve-year sentence with 85 percent release eligibility. 

Houston’s later change of heart and revisionist history is precisely why defendants who 

seek to undo their plea decisions through claims of ineffective assistance face such a high 

evidentiary burden. In Lee v. United States, 137 S. Ct. 1958, 1967 (2017), the Supreme Court 

explained: “Courts should not upset a plea solely because of post hoc assertions from a defendant 

about how he would have pleaded but for his attorney’s deficiencies. Judges should instead look 

to contemporaneous evidence to substantiate a defendant’s expressed preferences.” Any and all

contemporaneous evidence in this case points to a conclusion that Houston would have rejected 

the prosecutor’s plea offer regardless of his attorney’s comments. For that reason alone, Houston’s 

prejudice argument fails. See, e.g., Smith v. Cook, 956 F.3d 377, 394–95 (6th Cir. 2020) (finding 

no prejudice because, even if trial counsel was deficient, there was no contemporaneous evidence 

in the record to demonstrate that the defendant “would have taken the deal at the time”); United 

States v. Pola, 703 F. App’x 414, 421 (6th Cir. 2017) (finding no prejudice because “the record 
No. 20-6102, Houston v. Phillips

13

simply does not establish, by contemporaneous evidence, that [the defendant] would” have pled 

differently). 

Houston makes three additional arguments, none of which is persuasive. First, Houston 

asserts in his brief that he believed when he rejected the offer that, if convicted, he was facing “no 

more than five years” in prison—which is the average length of aggravated assault sentences in 

Tennessee, according to Houston. But that theory twists the facts. Houston’s counsel never 

advised Houston that he was charged with assault (because he wasn’t), nor did he inform Houston

that he was facing only a five-year sentence. Moreover, Houston bases this argument on 

sentencing statistics in a report that neither counsel nor Houston discussed. At the time Houston

rejected the plea offer, he was aware of his actual sentencing exposure.

Second, Houston argues that it is “common-sense” that he would have accepted such a 

“generous” plea offer had his counsel not made remarks about the prosecutor’s case. But under 

that logic, prejudice could be found any time a defendant is offered a favorable plea deal—which 

could be every case, because the rudimentary concept of plea bargaining is to exchange leniency 

for the time, expense, and uncertainty of a full trial. And a case in which there is an unusually 

generous plea offer begs the question of whether the trial court would have accepted the 

arrangement. Houston’s “common-sense” argument also belies reality. Defendants routinely 

reject favorable plea offers in the face of near-certain convictions. See United States v. Knight, 

981 F.3d 1095, 1112 (D.C. Cir. 2020) (Katsas, J., dissenting) (“[D]efendants assess trial risks

differently, and even a defendant ‘almost certain’ to be convicted could rationally reject a plea.” 

(quoting Lee, 137 S. Ct. at 1968)). And there are a host of reasons unrelated to attorney conduct 

that might cause a defendant to reject such a plea offer. One possible reason in this case is 

Houston’s knowledge that at least one of his co-defendants, who faced the same charges, received 
No. 20-6102, Houston v. Phillips

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a better plea deal than he did. Regardless, the point remains that all we have to substantiate

Houston’s newly expressed plea preferences are his self-serving, post hoc statements and our 

speculation. Those are not enough.

Third, Houston again leans heavily on Byrd. In that case, we found prejudice because the 

defendant’s “interest in proceeding to trial was rooted in misinformation gleaned from his 

counsel’s faulty advice, making it an unreliable metric of reasonably probable outcomes.” Byrd, 

940 F.3d at 258. We explained that because his counsel’s advice was “erroneous and omitted 

critical details,” the defendant “lacked the requisite information to weigh the options in front of 

him” and effectively had “no choice at all.” Id. at 258–59. By contrast, counsel’s performance 

here was not so “manifest[ly] deficien[t]” that it tainted Houston’s understanding of his case and 

rendered him incapable of making a choice. See Premo, 562 U.S. at 125. As we have explained, 

this is not a situation in which counsel failed to advise his client of the worst-case-scenario 

consequences of declining a plea offer or in which counsel insisted that his client roll the dice at 

trial. Counsel fully advised Houston of the charges and evidence against him, the prosecutor’s

burden of proof, and his potential sentencing exposure. Given these facts, and the lack of 

contemporaneous evidence to the contrary, Houston cannot show that he had a considerable 

misunderstanding—or that, even if he did, it was caused by counsel’s remarks—that left him 

unable to make an intelligent decision about whether to accept the prosecutor’s plea offer. In the 

end, Houston made his choice. And Strickland does not give him a do-over.

3. Evidentiary Hearing

Houston also asks that we remand this case for an evidentiary hearing. He argues that the 

district court erroneously declined to hold an evidentiary hearing and that a hearing would help 

develop the record to his benefit. But that avenue was recently foreclosed by the Supreme Court 
No. 20-6102, Houston v. Phillips

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in Shinn v. Ramirez, 142 S. Ct. 1718 (2022), which limited federal habeas review of defaulted 

claims to the state-court record, subject to the narrow exceptions listed under § 2254(e)(2) of 

AEDPA. Id. at 1734. 

In short, federal habeas courts are prohibited, by statute, from granting evidentiary hearings 

when petitioners have “failed to develop the factual basis of [their] claim[s] in State court 

proceedings.” Id. at 1728 (quoting 28 U.S.C. § 2254(e)(2)). And the equitable rule announced in 

Martinez does not give federal courts authority to amend AEDPA’s statutory directives and allow 

petitioners to expand state-court records to support their ineffective-assistance-of-statepostconviction-counsel claims. Id. at 1728, 1736–38; see also Shoop v. Twyford, 142 S. Ct. 2037, 

2046 (2022). 

Because Houston failed to develop the factual basis of his claim in state court, and because 

none of § 2254(e)(2)’s exceptions apply, Houston is not entitled to an evidentiary hearing. 

III.

For these reasons, we AFFIRM the judgment of the district court.
No. 20-6102, Houston v. Phillips

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COLE, Circuit Judge, concurring in the judgment.

“Our constitution insists . . . that no matter how heinous the crime, any conviction must be 

secured respecting all constitutional protections.” Shinn v. Ramirez, 142 S. Ct. 1718, 1741 (2022) 

(Sotomayor, J., dissenting). The record presented on appeal, however, does not establish that 

Houston’s trial counsel’s performance was deficient, nor that it prejudiced Houston’s defense. See 

Strickland v. Washington, 466 U.S. 668, 687 (1984). Houston is not at fault for his postconviction 

counsel’s failure to raise and develop this claim in state court. But, because Houston’s case does 

not implicate one of “§ 2254(e)(2)’s narrow exceptions to AEDPA’s general bar on evidentiary 

hearings,” the Supreme Court’s recent decision in Shinn v. Ramirez prevents this court from 

remanding for further evidentiary development. See Shinn, 142 S. Ct. at 1740 (alterations and 

quotation omitted). Accordingly, I concur in the judgment denying Houston’s petition for habeas 

relief.