Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published *

and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30772

PAUL H. WILL

Petitioner-Appellee

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY

Respondent-Appellant

Appeal from the United States District Court 

for the Eastern District of Louisiana 

USDC No. 2:06-CV-2007

Before JOLLY, DeMOSS, and PRADO, Circuit Judges.

PER CURIAM:*

The State appeals the district court’s grant of writ of habeas corpus to

appellee Paul H. Will. Will is currently serving life in prison for aggravated

kidnapping in the Louisiana State Penitentiary in Angola, Louisiana. The

district court granted his petition for writ of habeas corpus due to ineffective

assistance of counsel, after finding that Will’s trial counsel failed to inform him

of a plea offer of twenty to thirty years. Because the district court erroneously

United States Court of Appeals

Fifth Circuit

F I L E D

October 9, 2009

Charles R. Fulbruge III

Clerk
No. 07-30772

2

interpreted state court findings, we reverse and render. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Trial

This case involves an aggravated kidnapping crossing state lines. The

grand jury indicted Will for aggravated kidnapping and a lesser included charge

of second degree kidnapping. Will proceeded to trial on the theory that his

actions did not meet the definition of aggravated kidnapping and essentially

conceded his guilt on the lesser included charge. The jury found him guilty of

aggravated kidnapping. Will received the statutorily-mandated sentence of life

in prison. Will appealed.

B. Post-Trial Proceedings

After trial, Will’s appeal followed a somewhat unusual course. The

appellate court stayed his appeal and remanded to the trial court for an

evidentiary hearing on whether the prosecution had offered a plea agreement

that had never been conveyed to Will. The trial court held an evidentiary

hearing where prosecuting attorney Cornelius Regan, Will’s trial counsel Julian

Murray, and Will testified regarding the alleged plea offer. The trial court made

no factual findings. After the evidentiary hearing, the appellate court affirmed

the conviction and sentence, but declined to make factual findings based on the

evidentiary hearing. It reasoned that the plea agreement issue related to a

potential ineffective assistance of counsel claim and should be handled in postconviction relief. The Louisiana Supreme Court denied Will’s petition for writ

of certiorari. 

Will filed an application for post-conviction relief in the state court. The

trial court made factual findings based on the earlier evidentiary hearing and
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3

denied relief. Will exhausted his appeals in the Louisiana state courts then filed

this federal petition for writ of habeas corpus alleging insufficiency of evidence

to prove aggravated kidnapping (though admitting the elements of second degree

kidnapping) and ineffective assistance of counsel.

The court granted Will’s habeas petition. The district court ruled there

was sufficient evidence to find that the elements of aggravated kidnapping had

been satisfied. Will does not appeal that decision. The district court also found

that the prosecuting attorney had made a plea offer to Will’s trial counsel that

trial counsel failed to convey to Will. The district court found that the state

court’s decision denying relief despite the plea offer “involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States.” 28 U.S.C. § 2254(d)(1). The district court ruled that

failure to inform Will of the plea offer prejudiced Will under the Supreme Court’s

ineffective assistance of counsel jurisprudence because Will’s testimony at the

evidentiary hearing showed he would have taken the offer. The court vacated

the conviction and sentence, and ordered that Will be released from custody

within ninety days unless the State offered a plea offer with the same material

terms of the plea offer it tendered before trial. The State moved to stay

judgment pending appeal, and the district court granted the motion.

C. The Plea Offer

The parties dispute whether Assistant District Attorney Cornelius Regan

made a plea offer to defense counsel Julian Murray. Will first learned of a

possible plea offer when, in the newspaper the day after his conviction, the

victim and her family were quoted as “wonder[ing] why Will . . . didn’t accept the

20-year sentence that was offered to him in a plea agreement.” Will asked
No. 07-30772

 Aggravated kidnapping carries with it a mandatory sentence of life in prison. The decision to 1

proceed as an aggravated kidnapping forecloses any possibility of a plea offer.

4

Murray about the plea offer. This prompted Murray to write a letter to Regan

asking that he confirm that Regan made no such offer. Murray wrote that:

[a]fter talking with the [victim and her family] you called me and

told me that the decision was made by the District Attorney’s Office

to proceed to prosecute the case as an aggravated kidnapping. You

did mention in passing that you thought the [victim and her family]

would like to see Paul do 20 to 30 years in jail, but that was never

presented as an offer. 

I do not mean to suggest that if it had been an offer it would have

been one that I would have recommended as being reasonable, or

one that my client would have considered acceptable. However, it

would have been an offer which I would have been ethically bound

to convey to my client. I therefore would appreciate it if you would

confirm to me in writing that at the time of our conversation you

told me that the District Attorney’s Office had determined to

proceed with the case as an aggravated kidnapping.1

Regan did not respond to the letter. 

There is also a minute entry from a pre-trial hearing reading “[t]he

defendant has refused any plea offer, following setting is a priority setting.”

However, the accompanying audio transcript captures Murray stating “[w]e were

in touch with the District Attorney’s Office up until Thursday to determine

whether or not this matter could be resolved by a plea. It was determined that

it could not be.” As this is the only reference in that hearing to plea discussions,

it is clear the minute entry simply misstated the proceedings.

At the post-trial evidentiary hearing, Murray testified that he was “never

given any term of years by the D.A.’s office” but that “[t]here were discussions

in which I had recommended a certain number of years I would recommend to
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my client. I never told them he wouldn’t take anything other than that . . . .”

Murray testified that he would have recommended ten years, but that he never

got to the point where he would make a recommendation to his client because

the D.A.’s Office’s informed him they were going to proceed to trial with the

aggravated kidnapping charge.

Regan testified that the D.A.’s Office brought in the victim’s family

because he wanted to ascertain if they would feel comfortable with a plea offer.

The family responded that it would be comfortable with twenty to thirty years.

Reagan recalled that during a phone conversation with Murray, he mentioned

that the family would be interested in a plea from twenty to thirty years, but

that Murray informed him that his client would not accept more than three to

five years. Regan also testified that in order to make a plea offer, the D.A.’s

Office would have had to reduce the charges because aggravated kidnapping

carried a mandatory life sentence, and the D.A.’s Office was not willing to reduce

the charge unless it knew that he was going to accept twenty to thirty years.

Regan testified that he had not responded to Murray’s letter because “[he] didn’t

feel it needed any response.”

On post-conviction relief, the state district court reviewed the transcript

of the evidentiary hearing and made the following findings:

In the instant case, defendant claims that counsel failed to advise

him that a plea agreement to second degree kidnapping was offered

by the State. A review of the defendant’s records indicated that he

knowingly entered a plea of not guilty. Further, defendant has not

met his burden in proving that he involuntarily entered a plea of not

guilty. Further, defendant claim [sic] relate to strategic choices

made by his counsel at the time of the defendant’s trial. The

defendant’s claims are essentially with his counsel’s decisions

regarding defendant’s plea at trial. This is considered trial tactics
No. 07-30772

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for purposes of evaluating the performance of defendant’s counsel.

Thus, defendant’s claim must fail because his counsel’s action at

trial was considered trial tactics and under the Strickland test, the

defendant has failed to meet the two-prong test.

The federal district court interpreted the state court decision as an

implied, unarticulated finding that a plea offer of twenty to thirty years had

been made. The district court reasoned that the state judge was “faced with two

inconsistent versions of the plea discussions,” and that the state court chose

Regan’s version. The named “inconsistent versions” were (1) Murray’s denial

that he told Regan that Will would refuse any particular number of years, and

(2) Regan’s testimony that Murray told him his client would not take more than

three to five years. This is the only inconsistency in evidentiary hearing

testimony. 

After describing the evidence presented and recounting the state court’s

factual findings, the federal district court concluded that “[t]he trial court

apparently made the factual finding that a plea offer of 20 to 30 years was in fact

tendered, but rebuffed by defense counsel and without being conveyed to the

petitioner.” The district court continued: 

[h]ad the trial judge accepted defense counsel’s version, that no plea

offer was even made, that would have ended the discussion. By

couching his decision in terms of defense counsel’s “strategic

choices” and “trial tactics” he necessarily found that a plea offer was

in fact made, consistent with the prosecutor’s testimony, but was

not conveyed due to the “strategic choices” and “trial tactics” of

defense counsel. 

The district court ruled that failing to convey the plea offer to Will amounted to

ineffective assistance of counsel that prejudiced Will because he would have

accepted the plea offer based on his testimony at the evidentiary hearing.
No. 07-30772

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II. DISCUSSION

A. Standard of Review

This court reviews the district court’s findings of fact for clear error and

its legal conclusions de novo, “applying the same standard of review to the state

court’s decision as the district court.” See Gomez v. Quarterman, 529 F.3d 322,

327 (5th Cir. 2008) (quotations omitted), cert. denied 129 S. Ct. 628 (2008). “A

factual finding is not clearly erroneous if it is plausible in light of the record as

a whole.” United States v. London, 568 F.3d 553, 562 (5th Cir. 2009) (quotations

omitted).

In a habeas proceeding, we will “‘not grant relief on any claim adjudicated

on the merits by a state court unless the state decision was contrary to, or an

unreasonable application of, clearly established federal law as determined by the

Supreme Court, or if the state court’s determination of facts was unreasonable

in light of the evidence.”’ Id. (quoting Thompson v. Cain, 161 F.3d 802, 805 (5th

Cir. 1998) (citing 28 U.S.C. § 2254(d))). The “state court’s factual findings are

presumed to be correct unless contravened by clear and convincing evidence.”

Moody v. Quarterman, 476 F.3d 260, 267 (5th Cir. 2007) (citing 28 U.S.C. §

2254(e)(1)). This presumption of correctness applies also to unarticulated

findings necessary to the state court’s conclusions of mixed law and fact. Valdez

v. Cockrell, 274 F.3d 941, 948 n.11 (5th Cir. 2001). 

B. Ineffective Assistance of Counsel

In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court set

forth a two-prong test for evaluating claims of ineffective assistance of counsel.

The petitioner must first demonstrate that counsel’s performance was deficient,

and then prove that the deficient performance prejudiced his defense. Id. at 687.
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The deficiency must be “so serious that counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. To show

prejudice, the petitioner must show “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Id. at 694.

We have held that “failing to inform the defendant of a plea offer could

amount to ineffective assistance of counsel.” Teague v. Scott, 60 F.3d 1167, 1171

(5th Cir. 1997). “In determining whether or not to plead guilty, the defendant

should be made aware of the relevant circumstances and likely consequences so

that he can make an intelligent choice.” Id. at 1170. We have not previously

ruled that failure to inform a defendant of plea discussions could amount to

ineffective assistance of counsel.

1. The State Court’s Unarticulated Finding

The district court erred by finding that the state court implicitly found

that Regan had made a plea offer. It is true that if the state court makes an

unarticulated finding, then the district court must accept the finding as true

unless it determines that the finding was unreasonable or clearly erroneous,

Richards v. Quarterman, 566 F.3d 553, 563–64 (5th Cir. 2009), but the federal

courts need not defer if there was no such finding. Interpretation of the state

court’s ruling is a matter of law that this court reviews de novo. See Gomez, 529

F.3d at 327. 

The district court’s conclusion was based on the state court’s finding that

Will’s ineffective assistance claim “relate[s] to strategic choices made by his

counsel at the time of [Will’s] trial. [Will’s] claims are essentially with his

counsel’s decision regarding [Will’s] plea at trial. This is considered trial tactics
No. 07-30772

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for purposes of evaluating the performance of [Will’s] counsel.” Although

confusing, this language does not lead us to conclude that the state court found

a plea offer had been made. It is more reasonable to conclude that the state

court referred only to plea discussions instead of a bona fide plea offer. The state

court would have been less likely to so easily dispose of Will’s claim for

ineffective assistance of counsel if it had found a plea offer had actually been

made. Because the state court’s ultimate conclusion did not require it to find a

plea offer, we conclude that the state court did not find Regan made any plea

offer to Murray. We must reverse the district court’s ruling.

2. Evidence Supporting Plea Offer

In light of our holding that the state court did not find that Regan made

a plea offer, we ask whether the district court committed clear error by finding

that a plea offer had been made. If the district court’s finding was clearly

erroneous, we need not remand for the district court to make factual findings in

light of our decision. 

A review of the record reveals no evidence that Regan made a plea offer to

Murray. The testimony at the evidentiary hearing is consistent with

preliminary plea negotiations: that Regan told Murray that the family had

expressed interest in a twenty to thirty year deal, and that Murray’s response

led Regan to believe that they were too far apart in terms of years to justify

continued negotiations. The only inconsistency supported by the evidence is

whether Murray told Regan his client would only plea to three to five years.

This dispute has no bearing on whether Regan made an offer to Murray. 

The only parties present at the plea negotiations testified that neither

Regan nor anyone else at the D.A.’s Office made a plea offer. On cross-
No. 07-30772

 The minute entry at the pre-trial hearing suggesting that a plea offer was made can not be

2

considered, because it merely misstates what was said at the hearing.

10

examination at the evidentiary hearing, counsel asked Regan “did the State of

Louisiana ever offer Mr. Will a plea agreement?” Regan responded “No.”

Murray wrote a letter post-trial that a plea offer had not been made, and stated

at the pre-trial conference “[w]e were in touch with the District Attorney’s Office

up until Thursday to determine whether or not this matter could be resolved by

a plea. It was determined that it could not be.” Murray also testified at the 2

evidentiary hearing that the D.A.’s Office never made a plea offer. 

Because Murray and Regan were the only two people present and

competent to testify as to the supposed plea offer, we need not look beyond their

testimony. Both deny that a plea offer was ever made, and there is no reason to

doubt the credibility of their testimony. We therefore conclude that it is not

plausible, in light of the record as a whole, to find that Regan made a plea offer

to Murray. See London, 568 F.3d at 561. A finding otherwise is clearly

erroneous.

3. Plea Discussions

At oral argument, Will’s counsel argued that the failure to disclose the

substance of plea negotiations amounts to ineffective assistance of counsel. Will

did not make this contention in his brief, and only argued that a failure to

inform the client of an existing plea offer amounts to ineffective assistance of

counsel. Will also failed to argue before the district court that a failure to

communicate the substance of plea negotiations amounted to ineffective

assistance of counsel. If not raised before the district court, arguments are

waived and cannot be raised on appeal. See LeMaire v. La. Dep’t of Transp. &
No. 07-30772

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Dev., 480 F.3d 383, 388 (5th Cir. 2007) (citing Tex. Commercial Energy v. TXU

Energy, Inc., 413 F.3d 503, 510 (5th Cir. 2005)). “However, an argument is not

waived on appeal if the argument on the issue before the district court was

sufficient to permit the district court to rule on it.” In re Liljeberg Enters., Inc.,

304 F.3d 410, 428 n.29 (5th Cir. 2002). 

In this case Will never argued to the district court that failing to inform

a defendant of the substance of plea negotiations rises to the level of ineffective

assistance of counsel and there was no argument regarding whether Will was

prejudiced by the failure to convey plea negotiations. Therefore, we do reach the

merits of Will’s contention that Murray’s failure to inform him of plea

discussions amounted to ineffective assistance of counsel.

III. CONCLUSION

Because we have determined that there was no ineffective assistance of

counsel under the first Strickland prong, we need not ask whether the counsel’s

actions caused the defendant prejudice. Accordingly, the judgment is

REVERSED and RENDERED for the State.