NOT RECOMMENDED FOR PUBLICATION File Name: 22a0332n.06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, W arden , Respondent

- Appellee

. ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE

B efore : 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 attempt s to reach a plea agreement

. But negotiations reached an impasse when t he 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 burglar y, 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 ent ered 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 press ing 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 an d 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, t he 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 . T he prosecutor’s most lenient offer was a twelve

- year sentence with 85 percent release eligibility. Houston rej ected that offer and opted for trial. All f ive of Houston’s co - defendants accept ed plea deals . One co

1 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

- of

counsel 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 1 3, 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

- of

counsel 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 t hese 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 , “ A t most, this is an aggravated assault case. ”

2 Houston originally filed a pro se petition for postconviction relief

.No. 20

- 6102, Houston v. Phillips

4

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 hear d 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 beatin g 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 a ny trial result or promise that Houston would be convicted of only aggravated assault

. T rial counsel also testified that he explained to Housto n the sentencing exposure Houston faced if he went to trial

. T he 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 appeal ed

. W e granted Houston a certificate of appealabili ty 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 b ecause two remarks made by his trial counsel in 2012 misinformed him about whether to accept a plea deal, and that he would haveNo. 20

- 6102, Houston v. Phillips

5

taken a plea deal had he been given cor rect 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 f

ederal cour t reviewing the lawfulness of a state prisoner ’ s detention may grant habeas relief only if t he 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,
7 29

– 31 (1991) , and by the c ongressional 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 , w e 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 di sturbing a sta te

- court conviction withou t the state court ’s having had the opportunity to first address the claim ed error . Id. at 73 0

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

. In limited circumstances , howeve r , a petitioner may overcome this hurdle if he can establish “cause” t o 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, 8 4 (1977)). In this scenario, t o qualify as “cause,” the attorney error must amount to constitutionally ineffective assistance of counsel. Id. at 206 5

. And, until some yearsNo. 20

- 6102, Houston v. Phillips

6

ago, an attorney error in state postconviction proceedings did not qualify as “cause” because a petitioner ha s no constitutional right to counsel in those proceedings. Coleman , 501 U.S. at 75 2

– 53 . Nevertheless, in Martinez v. Ryan , 566 U.S. 1 (2012), the Supreme Court created an equitable “qualification ” of this rul e . Id. at 1 5

– 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 s tates, ineffe ctive assistance of postconviction counsel may establish “cause” to excuse the procedural default of a petitioner’s underlying in ef fective

assistance claim against his trial counsel. Martinez , 566 U.S. at 14. Importantly, the petitioner must also demonst rate that his defaulted ineffectiv e - 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 becaus e , 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 hearin g . The
State does not challenge Houston’s cause - and

- prejudice argument , but instead focuses on Houston’s underlying ineffective

- assistance

- of

- tri a l

- counsel claim, arguing that the claim is not “substantial.”No. 20

- 6102, Houston v. Phillips

7

We have good reason s 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 aga inst 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 d eficient performance prejudiced his defense. Id. at 6 8 7

. 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 fa lls 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 f ailure to adhere to a State’s legitimate rules for the fair and orderly disposition of its criminal case s .” 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 rais e 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

8

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 st ate 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 rem arks 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

9

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 w e must take great car e 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, i s nothing like what occurred in this case. In Byrd , the defense counsel made at least three professional error s. 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 , ” “convinc ed Byrd that a guilty plea was unnecessary and against his interest,” and “assured Byrd that he would ‘hit a home r un’ 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 25 3, 25 8. Rather than “ Byrd on steroids,” this case is Byrd through the looking glass 4

— 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 pressur e Houston to reject the prosecutor’s best offer, nor did he

4 Lewis Carroll, Through the Looking

- Glass 121 (Penguin Books 1998) (1872) ; s ee 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

10

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 prop erly 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 la w. Cf. Maples v. Stegall , 340 F .3d 433, 4 39 (6th Cir. 2003) (finding ineffective assistance where counsel gave “patently erroneous” legal advice regarding the appellate consequences of defendant’s guilty plea). T his case does not present the type of “apparent,” “abundant,” and “blatant ” incompetence that counsel displayed in Byrd , 940 F.3d at 257

. Moreover, t he 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 imbalan ce 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 born e 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 unrea sonable.”). 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

11 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 reasonabl e probability is a probability sufficient to under mine 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 willing ness to accept such an offer is “ not an issue ” because he testified: “I told [trial counsel], ‘ I f 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 re lease eligibility had his counsel not been ineffective. But the state postconviction hearing tells a different story. At the hearing, Houston did not testi fy 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 rele ase - 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.”
T rial counsel’s testimony confirms Houston’s adamanc e . Counsel testified , “Mr. Houston was not interested at 12 at 8 5 percent . . . . You know, we’re talking about a gap there, a percentage, butNo. 20

- 6102, Houston v. Phillips

12

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, incl uding 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 h e ever gave me permission to seek. And there wasn’t any number lower than 12 a t 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 un do their plea decisions through claims of ineffective assistance face such a high evidentiary burden. I n Lee v. United States , 137 S. Ct. 1958, 1967 (2017) , the Supreme Court explained : “ C ourts 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 ca se point s 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. S ee, 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 recordNo. 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 persua sive. 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 rejec ted 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

c ould 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
gene rous plea offer begs the question of whether the trial court would have accepted the arrangement

. Houston’s “common

- sense” argument also belies reality. D efendants 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 fac ed the same charges, receivedNo. 20

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14

a better plea deal than he did

. R egardless , the point remains that all we have to substantiate Houston’s newly expressed plea preferences are his self

- s erving, 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 rea sonably probabl e 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,
t his 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 expo sure. Given these fact s, 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 deci sion 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 th e Supreme CourtNo. 20

- 6102, Houston v. Phillips

15

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 § 225 4(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

- state

postconviction

- counsel claims

. Id. at 1728, 1736

– 3 8 ; se e 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 cour t.No. 20

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16

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, h owever, 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 rai se 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.