UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ JAMES EDWARD CLAYTON, Petitioner - Appellant,

v. SCOTT CROW, DOC Director, Respondent - Appellee. No. 20-7015 (D.C. No. 6:16-CV -00423-RAW-KEW) (E.D. Okla.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before MATHESON , BACHARACH , and MORITZ , Circuit Judges.

________________ _________________ James Edward Clayton has been in th e State of Oklahoma’s custody since 1982, but the intervening forty years have not been enough to set tle certain questions about whether Clayton was properly convict ed and sentenced. Those questions have already generated four deci sions from this court alone. Clayton’s case returns to us again following the distri ct court’s denial of his most recent 28 U.S.C. § 2254 petition, filed in 2016. As relevant here, that petition

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not ma terially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 20, 2022 Christopher M. Wolpert Clerk of Court Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 12 claimed that Clayton received ineffective assistance of counsel at the guilty-plea phase, and that his guilty plea did not have an adequate factual basis. We granted a certificate of appealability (C OA) regarding Clayton’s ine ffective-assistance claim, and we sua sponte ordered briefing on a jurisdictional issue. For the reasons explained below, we find: (i) the district court properly exercised jurisdiction over Clayton’s claims ; (ii) the state c ourt’s resolution of Clayton’s ineffective-assi stance claim was based on an unreasonable factual determination, so it is not en titled to deference; (iii) upo n de novo review of that ineffective-assistance claim, Clayton fails to establish prejudi ce (specifically, a reasonable probability that he would ha ve insisted on going to trial); and (iv) Clayton’s claim that his guilty plea la cked an adequate factual basis does not meet the standard for a COA. We therefore affirm the district c ourt’s judgment as to the ineffective-assistance claim, although fo r different reasons than those given by the district court, and we deny a COA as to the inadequate-factual-basis claim.
I. BACKGROUND & PROCEDURAL HISTORY This case’s lengthy history can be genera lly divided into three phases, which we describe in turn.
A. Phase One: First Guilty Plea, Appe al, and First Round of Collateral Review (1982–2003) In December 1982, Clayton robbed a pha rmacy in Muskogee, Oklahoma. Driving away from the scene of the crime, he ran a red li ght, struck another vehicle, and killed its occupant. Oklahoma charge d Clayton with second-degree murder and Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 23 four other crimes related to the event ( e.g. , theft from the pharmacy , theft of a motor vehicle). The state also alleged seven prior convictions, for sentence-enhancement
purposes. On the morning of trial, Clayton pleaded guilty with no promises or concessions from the prosecutor or court (s ometimes called an open plea or a blind plea), waived a pre-sentence report, a nd was sentenced immediately to life imprisonment on the murder charge, but with the possibility of parole. On the other charges, he received various definite pris on terms (the longest being thirty years). The judge ordered all of Clayton’s sentences to run concurrently. Clayton quickly sought to withdraw hi s guilty plea, arguing he had not been competent to enter it. The trial court denied that mo tion, and the Oklahoma Court of Criminal Appeals (OCCA) affirmed. Over the next two decades, Clayton litig ated state and fe deral postconviction challenges. Those challenges culminated in a federal writ of habeas corpus issued in 2003, requiring the state to permit Cl ayton to withdraw his guilty plea.
B. Phase Two: Second Guilty Plea, and Second Round of Collateral Review (2004–2013) Returning to state court, Clayton receive d appointed defense counsel, Albert J. Hoch, Jr., and withdrew his guilty plea. Cl ayton thus reverted to pretrial-detainee status, and Oklahoma transfer red him from prison to county jail to await his decision whether to go to trial, or to again plead guilty. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 34 In September 2004, Clayton met with Hoch and then chose to repeat his decision from more than twenty years earlier, i.e. , he entered a blind plea to all the charges. On a court-manda ted form (which Hoch fill ed out on Clayton’s behalf, see Aplt. App. vol. II at 77–78), the answer “N o” is circled for the question, “Have you been . . . promised anything by anyone to have you enter your plea(s)?” Aplt. App. vol. V at 7. Upon accepting Clayton’s plea, the trial court similarly rep eated its decision from more than twenty y ears earlier, immediately imposing a life-with-parole sentence for the second-degree murder charge and various concurre nt terms of years for the other charges. Shortly after sentencing, Clayton wrote a letter to the trial judge stating, “I would feel better had you given me a se ntence I can/could disc harge. However, I accept what I have been given. I am tha nkful and wish for you to know that I will do my utmost to secure my release via pa role . . . .” Record on Appeal at 205, Clayton v. Ward , No. 08-7038 (10th Cir. Sept. 19, 2008). A few days later, however, Clayton wrot e a letter to Hoch (his attorney) expressing concern over whether he had re ceived the sentence he expected. That letter included a claim that Hoch had a rranged a deal by which Clayton would be granted parole by December 2004: Mr. Hoch, at the time of our discussion [ahead of the change-of-plea hearing] you told me and my family I would receive credit for time served from 1982, with credit for good-time; that I would be put on the November 2004 [parole] docket and be home with my wife by Christmas Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 45 (2004). Another attorney to ld my wife this was not possible. . . . Mr. Hoch , you know I would not have plea[ded] blindly to the mu rder charge without your assurances I would be home w ith my family by Christmas (2004) and that I would receiv e credit for time from 1982, with credit for good-time. We discussed this several times! Mr. Hoch, as you told me—I said nothing at [the] time of my plea and sentencing because you said you had it “worked out” and we didn’t want [Oklahoma Attorney General] Drew [Edmondson] ge tting involved. I ask[ed] you to appeal—just to insure everything went right and I would dismiss the app eal when I got out.

. . . Mr. Hoch, in view of these ma tters I am requesting you to appeal or withdraw my plea to count one (murder) . . . . Have you arranged for me to be paroled in December 2004? Aplt. App. vol. IV at 245–47. Almost a year later, Clayton filed a new postconviction challenge in the sentencing court basically reiter ating the claims made in hi s letter to Hoch. Clayton said Hoch “made certain specific representations to [him ], and his family, that if [he pleaded guilty] he would be released on Parole in December, 2004.” Record on Appeal at 46, Clayton v. Ward , No. 08-7038. Clayton also claimed Hoch had failed to file an appeal from th e guilty plea on his behalf. See id. at 47–48. The trial court rejected these claims and the OCCA affirmed, finding that Clayton was legally sophisticated, underst ood his appeal deadline, and could have instituted an appeal himself, but did not. Therefore, he had waived his challenges for failure to bring them on direct appeal. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 56 Clayton then filed a new § 2254 petition in the distri ct court, pleading the same claims. In an affidav it, he asserted that Hoch claimed to have arranged an unwritten deal with the court and the Okla homa Attorney General’ s Office that if Clayton pleaded guilty, he w ould be placed on the November 2004 parole docket and would be granted parole by Christmas 2004 . But Hoch advised Clayton not to discuss the deal in open c ourt because a reporter might be present and news of the deal might embarrass Attorney General Edmondson. Also, Hoch advised that Clayton “would be granted credit for all [h is] time served since 1982, to include ‘good-time’ credits (which would probabl y reduce [his] other charges to ‘fully served’ or ‘discharged’ status). ” Aplt. App. vol. V at 62. Clayton agreed to this deal but instructed Hoch to app eal the guilty plea anyway, ju st in case the deal fell through. He gave the same instructions af ter the hearing, and re peatedly attempted to call Hoch in the ten days afterward (the app eal window) to ensure an appeal would be filed. Clayton also said that, but for Ho ch’s promises, he “would not have pleaded blindly to the Second Degree Murder charg e” and “would have exercised [his] right to [a] jury trial.” Id. at 64. After lengthy proceedings, including two a ppeals to this court, the district court entered an order in January 2013 requiring Oklahoma to allow Clayton an appeal out of time from his 2004 guilty plea— thus reinstating Clayton’s opportunity to argue (to the state court, in the first instance) that he would not have entered a blind plea but for Hoch’s promises. Clayton therefore returned to state court again in about February 2013. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 67 C. Phase Three: Direct Appeal from 2004 Guilty Plea, and Third Round of Collateral Review (2013–present). 1. Clayton’s Motion to Withdraw the Guilty Plea An Oklahoma defendant who wishes to appeal from a guilty plea must first move to withdraw the plea. See Clayton v. Jones , 700 F.3d 435, 44 1 (10th Cir. 2012) (summarizing the procedure). So Clayton’s out-of-time a ppeal began with a motion in the state trial court to withdraw his 2004 guilty plea. He asserted two bases:

 his 2004 guilty plea was not knowing, in telligent, or voluntary “due to coercion, misadvise [ sic ], misrepresentation and false assurances of Attorney Hoch regarding how long he would be in prison, parole and credits for time [served],” Aplt. App. vol. III at 66; and

 the plea lacked a sufficient factual basis because he had only admitted to driving in an unsafe manner, wh ich (he argued) was not enough to prove the “depraved mind” elemen t of second-degree murder in Oklahoma.
2. The State Court Evidentiary Hearing The state trial court held a hearing on Clayton’s motion in 2014. Clayton was represented by counsel. Clayton first called Hoch as a witness. Hoch denied promising or advising Clayton that he would be paroled by Ch ristmas 2004, and he had no memory of receiving post-sentencing lette rs from Clayton. But he c onfirmed that he believed Clayton had served far more time than expected. In Hoch ’s experience, the Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 78 Oklahoma Department of Corrections “ha[d] been treating life [with the possibility of parole] as 45 [years] for quite some time,” Aplt. App. vol. II at 66, and he believed that “you can discharge a life [sentence],” id. at 72, meaning an inmate can earn credit against that presump tive forty-five years and th erefore satisfy the sentence early. Given his forty-five-year assumption a nd knowing that Cl ayton had already served over twenty y ears (as of the 2004 sentencing), Ho ch further testified that he “probably [gave Clayton] some estima te of time [before Clayton would be discharged]. . . . [A] couple [o f years] or something like th at. . . . [B]ack then if you had done 50 percent of a nything, you were done.” Id. at 78–79. Hoch encouraged the trial judge to contact “Mr. Moore,” an administrator within the Oklahoma corrections system who could “review [Cla yton’s] time credits because, honestly, I think he’s probably got enough time credit s he should have [been] discharged [by now].” Id. at 83. In sum, while denying that he had made promises about a sp ecific release date, Hoch testified he had proba bly given advice about how l ong Clayton would still need to serve before being released. However, Hoch said he framed his advice in terms of outright discharge based on se rving half of the presump tive forty-five years—in contrast to Clayton’s claim about a promise of parole by December 2004. The only other witness at the hearing was Clayton himself. As relevant here, he testified consistent with his previous allegation, i.e. , that he pleaded guilty in September 2004 because Hoch told him, “You’ll come up for parole in November Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 89 and you’ll be out by Christ mas with your family.” Id. at 90. When cross-examined about this story, Cl ayton reaffirmed his narrative and added, [S]top and think about this: I had already been in jail for 15 months [following the original grant of habeas relief] and I had refused to plead gu ilty to that murder, so why would I just all of the sudde n just get this visionary experience that I want to go plead guilty to this murder? Id. at 102. Clayton said nothing, howev er, about Hoch’s testimony regarding discharge based on serving ha lf of forty-five years. As for the pre-plea form Clayton signed, in which he repr esented he had not been promised anything to induce him to plead guilty, Clayton fl atly denied that Hoch had read that part of the form to him. Clayt on also volunteered that he “probably would’ve signe d [the pre-plea form] regardless of what it said” because he believed he “was getting ready to get out, to being pretty close to getting out.” Id.
at 100. As stated above, Clayton’s motion to withdraw his plea also included a claim that the plea lacked an ad equate factual basis for the “depraved mind” element of second-degree murder. As to that, Clayton testified that neither Hoch nor anyone else had advised him about th at element of the offense. Finally, Clayton placed at le ast two affidavits into th e record. The first was from his minister, who was present at the pre-plea conference between Clayton and Hoch and who remembered Hoch saying “tha t if Mr. Clayton would enter the plea, that he (Mr. Clayton) would come up on th e Parole Board’s docket in November of 2004, and would be granted pa role, and be released, the next month.” Aplt. App. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 910 vol. V at 75. The second was from his br other-in-law, who was also present at the pre-plea conference and remembered Hoch saying that if Clayton “would enter a blind plea to the second degree murder char ge, [he] . . . would be on the November, 2004, Parole Board Docket, and . . . woul d be home [paroled] for Christmas 2004.” Id. at 81 (“[paroled]” in original). There was a third affidavit available to Clayton at th e time, from his wife, who was also present at the pre-plea conference with Ho ch. Clayton’s wife recounted essentially the same story as Clayton, his minister, and his brother-in-law. It is unclear whether Clayton introduced his wife ’s affidavit at the hearing, but there seems to be no dispute that the affidavit somehow made its way into the state-court record.
3. Post-Hearing Briefing Before and during the hearing, Clayton’ s theory was that Hoch had induced him to plead guilty through the promise of an unwritten parole d eal. Hoch denied that, but volunteered that he had proba bly given advice a bout entitlement to discharge based on time served. So Clay ton filed a supplemental brief highlighting Hoch’s testimony about discharge and r ecounting post-heari ng phone calls to “Mr. Moore” at the Oklahoma Department of Corrections, who told both the judge and Clayton’s postconviction attorney “tha t in fact a life sentence cannot be discharged.” Aplt. App. vol. III at 220. In other words, Clayton’s only hope for early release was parole. This, said Clay ton, showed that Hoch’s discharge advice was legally erroneous. But, perhaps r ecognizing that his pre-hearing theory (an Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1011 unwritten parole deal) is not the same as his post-hearing theory (advice about discharge through time served), Clayton attempted to blend the two theories by asserting, “It makes sense that Hoch woul d . . . believe that Clayton would be home at or around Christmas [2004] because Ho ch thought that Clayton was close to discharging [his sentence] in any event.” Id. at 223.
4. The State Court’s Resolution The trial court resolved Clayton’s mo tion through a written decision. The court confirmed that it and Clayton’s atto rney had spoken to Mr. Moore and learned that the Oklahoma Department of Corrections “will not discharge a life sentence with good time or credits.” Id. at 253. But the court held that “[t]he fact that the Defendant believed his senten ce would be ‘discharged’ is not a legal basis for a withdrawal of the plea.” Id. As to Clayton’s claim that the plea lacked an adequate factual basis, the court found the documents supporting the plea, and the plea hearing transcript, provided a sufficien t factual basis. The court therefore denied Clayton the opportunity to withdraw his 2004 plea. On direct appeal, the OCCA affirmed the trial cour t’s adequate-factual-basis ruling for the reasons given by the trial cour t, holding that “[k]illing a person in [the circumstances admitted in the plea agreement] can be punishable as murder under Oklahoma law.” Aplt. App. vol. I at 187. As for the voluntariness of Clayton’s plea, however, the OCCA affirmed on slightly di fferent grounds. The trial court assumed Clayton pleaded guilty under the belief th at he could discharge a life sentence through time served but declared it lega lly irrelevant, whereas the OCCA found Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1112 Clayton’s story incredible, at least as to whether Hoch’s alleged advice motivated him to plead guilty: “There is no credible evidence that [Clayton] pleaded guilty because of counsel’s prediction or promise that he would be paroled, or that he would eventually ‘discharge ’ his life sentence,” id. Clayton then filed anothe r state postconviction challe nge in the trial court, asserting the same claims. The trial court ruled that th e OCCA had rejected those claims on direct appeal and so the OCCA ’s ruling was res j udicata. The OCCA affirmed.
5. Clayton’s § 2254 Petition From there, Clayton returned to fe deral court with a nother § 2254 petition— the one now at issue. As releva nt here, he asserted two claims:

 Claim 1—Hoch rendered ineffectiv e assistance of counsel ahead of Clayton’s 2004 guilty plea; and

 Claim 2—the 2004 plea was not supporte d by an adequate factual basis. The district court found that the OCCA’s resolution of both claims was within the bounds permitted by 28 U.S.C. § 2254(d). As to claim 1, the court further held that Clayton had not shown prejudice, i.e. , that he likely would have gone to trial absent Hoch’s advice. The c ourt therefore denied relief. Clayton then moved for a COA from this court, which we granted as to claim 1. We also sua sponte ordered the parties to brief “whether the § 2254 petition at issue, or any part of it, is a ‘second or successive’ petiti on for purposes of 28 U.S.C. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1213 § 2244(b), such that petitioner was required to apply for this court’s authorization before filing it in the district c ourt.” Order at 2 (Oct. 5, 2021).
II. JURISDICTION “An appellate federal court must satisfy itself not only of its own jurisdiction, but also of that of the lower c ourts in a cause under review.” Mitchell v. Maurer , 293 U.S. 237, 244 (1934). 1 Clayton has filed two § 2254 petitions challenging his 2004 conviction: the first in 2006 (“2006 petit ion”), resolved in 2013 with an order that the state must give Cl ayton an out-of-time appeal (re ally meaning an out-of-time motion to withdraw his 2004 guilty plea); and the second in 2016 (“2016 petition”), currently at issue. If the 2016 petition is “second or successive” for purposes of 28 U.S.C. § 2244, then the district court lacked jurisdiction to adjudicate it because this court did not authori ze Clayton to file it. See § 2244(b)(3)(A) (“Before a second or successive application permitt ed by this section is filed in the district court, the applicant shall move in the appropriate cour t of appeals for an order authorizing the district court to consid er the application.”). In a 28 U.S.C. § 2255 proceeding, this court held that “when the granting of the prior [§ 2255] motion merely reinstated the right to a direct appeal, the first subsequent motion is not a second or successive motion under AEDPA.” United
States v. Scott , 124 F.3d 1328, 1330 (10th Cir. 1997) (per curiam). We have no

1 We accordingly reject Clayton’s ar gument that this court somehow erred when it raised the question of th e district court’s jurisdiction sua sponte

. See Opening Br. at 37–38. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1314 published authority extending this holding to § 2254, but neither can we see any reason why § 2254 and § 2255 should be treated differen tly in this context. Cf. Storey v. Vasbinder , 657 F.3d 372, 378 (6th Cir. 2011) (holding, in the § 2254 context, that “a petition filed after a remedi al appeal, ordered in response to an earlier petition, is not second or successive within the meaning of § 2244(b)—even if it includes claims that could ha ve been included, but were not, in the first petition”). Accordingly, we deem the 2016 petition to be , in effect, Clayton’ s first attack on his 2004 conviction, so Clayton did not need this court’s prior author ization to file it.
III. MERITS ANALYSIS OF INE FFECTIVE-ASSISTANCE CLAIM We now turn to the merits of Clayton’ s ineffective-assistance claim, which is the only one of his claims for which we granted a COA. We may not grant § 2254 relief on this claim unless th e state court’s adjudication (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). Clayton says the O CCA’s decision fits both categories. We will address his arguments in turn. Our review of th ese issues is de novo. Bland v.
Sirmons , 459 F.3d 999, 1009 (10th Cir. 2006). Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1415 A. The OCCA’s Understanding of Supreme Court Case Law Regarding the Prejudice Prong of an Ineffective-Assistance Claim Based on Advice to Plead Guilty As noted, the OCCA resolved claim 1 by finding “[t]here is no credible evidence that [Clayton] pleaded guilty because of counsel’s prediction or promise that he would be paroled, or that he woul d eventually ‘discharge ’ his life sentence.” Aplt. App. vol. I at 187 (emphasis added). Clayton says this contradicts clearly established Supreme Court precedent governing ineffective assistan ce of counsel in the context of advice to plead guilty. Ineffective assistance of counsel means: (1) constitutionally deficient performance by the attorney that (2) prejudices the defendant. Strickland v. Washington , 466 U.S. 668, 687 (1984). In the c ontext of advice to plead guilty, a defendant shows prejudice by establishing “a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart , 474 U.S. 52, 59 (1985). Clayton argues that the words “because of” in the OCCA’s finding show that the OCCA was requiring him to prove that he would not have pleaded guilty, rather than merely establishing a reasonable probab ility. We rejected a similar argument in Wood v. Carpenter , 907 F.3d 1279 (10th Cir. 2018), a nd we reject the argument here for essentially the same reasons. The petitioner in Wood argued in a state postconvi ction proceeding that he received ineffectiv e assistance of appellate counsel. See id. at 1288. A defendant satisfies the prejudice sta ndard for such a claim by s howing “a reasonable probability Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1516 that, but for counsel’s unreasonable errors, the outcome of his appeal would have been different.” Id. at 1294 (internal quotation mark s omitted). The OCCA correctly stated this standard. See id. at 1301. However, when it applied the standard, it used words that sounded like it was requiri ng something more than a reasonable probability: “‘Wood could not show that the outcome of his appeal would have been different.’” Id. (brackets omitted). The petitione r therefore argued that the OCCA “applied the wrong prejudice standard.” Id. We rejected the argument because state courts are presumed to know and follow th e law and “the OCCA’s occasional use of shorthand to describe the prejudice standard” was not evidence to the contrary. Id. We face materially the same situation here. The entire relevant passage from the OCCA’s decision is as follows:
In Hill v. Lockhart , supra, the Supreme Court held that the deficient performance/prejudice test of Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) applies to challenge s of guilty pleas based on ineffective assistance of couns el. The Court further stated that to prove Strickland prejudice, “the defendant must show that there is a reasona ble 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, 106 S.Ct. at 370. Petitioner and plea counsel test ified at the evidentiary hearing concerning counsel’s a dvice before the plea. The trial court concluded that Pe titioner was properly advised that the range of punishme nt was 20 years to life imprisonment. There is no credible evidence that Petitioner pleaded guilty because of counsel’s prediction or promise that he would be pa roled, or that he would eventually “discharge ” his life sentence. The trial court’s determination that the plea was knowing and voluntary is supported by the evidence, a nd denial of Petitioner’s Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1617 motion to withdraw the plea on this ground was not an abuse of discretion. Proposition One is denied. Aplt. App. vol. I at 186–87. Here, the OC CA quoted the proper prejudice standard from Hill , and we view the words “because of” (three sentences later) as merely a shorthand for that standa rd, not an application of a different standard. See Wood , 907 F.3d at 1301. For these reasons, we reject Clayton’ s argument that the OCCA unreasonably applied clearly establishe d Supreme Court precedent.
B. The OCCA’s “No Credible Evidence” Finding Again, the OCCA resolved claim 1 by fi nding “[t]here is no credible evidence that [Clayton] pleaded guilty because of counsel’s prediction or promise that he would be paroled, or that he would even tually ‘discharge’ hi s life sentence.” Aplt. App. vol. I at 187. The next ques tion is whether this was “an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). The state understands the OCCA to be sa ying there is no cred ible evidence that Hoch actually made a prediction or promise to Clayton that he would soon be paroled or discharged. But that is not what th e OCCA said, nor do we have any reason to infer that the OCCA meant to focus on whether counsel ma de a promise in the first place, as opposed to whether the promise induced Clayton to pl ead guilty. Indeed, the inferences point toward a conscious focus on the effect of the alleged promise, rather than its existence . Three sentences be fore the OCCA stated its “no credible Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1718 evidence” finding, it quoted the prejudice st andard, and that is the only quote from case law in that section of th e OCCA’s opinion: “[T]o prove Strickland prejudice, ‘the defendant must show that th ere 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.” Aplt. App. vol. I at 186 (emphasis added). 2 Thus, we take the OCCA’s finding at face value. See Wilson v. Sellers , 138 S. Ct. 1188, 1191 –92 (2018) (“Deciding whether a st ate court’s decision . . . was based on an unreasonable determination of fa ct requires the federa l habeas court to train its attention on the par ticular reasons—both legal a nd factual—why state courts rejected a state prisoner’s fe deral claims . . . .” (inter nal quotation marks omitted)). That finding presumes Clayton’ s counsel promised or predic ted to him that he would soon receive parole or discharge, but it concludes that Clayton failed to prove a reasonable probability that he would not have pleaded guilty but for counsel’s advice. We thus turn to the question of whether this was a reasonable factual finding on the

2 We also note that the st ate’s interpretation of the OCCA’s finding leads to an inference we are not prepared to accept on this record. The OCCA said there was no credible evidence of reliance on advice either about parole or about discharge. If this means, as the state contends, that there was no credible eviden ce Hoch gave such advice, then the OCCA would have need ed to conclude: (i) Clayton was not believable when he testified that Hoch prom ised a parole deal, a nd (ii) Hoch himself was not believable when he testified that he advised Clayton he could discharge his life sentence. It is possi ble, of course, for both w itnesses to be lying or misremembering, but such a finding would be unusual enough that we would expect the OCCA to state it exp licitly, if that is what the court really meant. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1819 record before the OCCA. We will first discu ss the finding as it re lates to discharge, and then as it relates to parole. 3
1. Advice about Discharge The OCCA reasonably found that Clayt on lacked credible evidence that he pleaded guilty because of Hoch’s erroneous advice about dischargi ng a life sentence. In the abstract, it is difficult to imagine a defendant who would not rely on such advice. But the facts of this case are uniqu e. Beginning with the letter Clayton wrote to Hoch shortly after his 2004 sentencing hearing, and continuing through the evidentiary hearing in 2014, Clayton’s only relevant accusation against Hoch was that he had arranged a deal by which Cl ayton would come up for and be granted parole on the murder conviction by Decembe r 2004. Indeed, in the very hearing where Hoch testified about giving discharge advice , Clayton continued to accuse Hoch of conveying an unwritten parole deal —even though Clayt on testified after Hoch. Clayton’s first attempt to reorient his claim around the discharge advice came in his post-hearing supplemental brief. But, to this day, there is no evidence in the

3 Throughout his briefing, Clayton conti nues the approach he employed in his supplemental brief following the st ate-court evidentiary hearing, i.e. , attempting to blend his parole and discha rge theories into one. See, e.g. , Opening Br. at 27 (“Mr. Hoch had advised Clayton that he would be home by Christmas because he would discharge, or would be close to discharging, the life sentence . . . .”). We reject this tactic. There is a material difference betw een an accusation that defense counsel conveyed an unwritten parole deal and an accusation that defense counsel predicted imminent discha rge based on time served. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 1920 record (as opposed to atto rney argument) that Clayton relied on advice about discharge. For these reasons, the OCCA r easonably found that Clayton did not rely on discharge advice when choosi ng to enter a blind plea in 2004. 4
2. Reliance on a Promise of Parole We next ask whether the OCCA reas onably found “[t]here is no credible evidence that [Clayton] plead ed guilty because of counsel’s prediction or promise that he would be paroled.” Aplt. App. vol . I at 187. The record before the OCCA contains the following evidence (and relate d inferences) that Hoch’s promise of parole induced Clayton to enter a blind plea:

 Clayton’s letter, written shortly afte r sentencing, stating, “Mr. Hoch, you know I would not have plea[ded ] blindly to the murder charge without your assurances I would be home with my family by Christmas (2004),” Aplt. App. vol. IV at 246;

 Clayton’s own affidavits and testim ony stating that he would not have pleaded guilty but for Hoch’s promise of parole, see Aplt. App. vol. II at 90; Aplt. App. vol. IV at 214; Aplt. App. vol. V at 64;

4 We further note that the state’s response brief twice asserts lack of reliance on precisely these grounds ( i.e. , Clayton alleged an unwritte n parole deal, not advice about discharge). See Resp. Br. at 43, 47–48. Yet Cl ayton’s reply brief ignores this distinction. To be clear, Clayton has cl aimed all along that he received advice from Hoch about discharging his “oth er charges” via time served. See Aplt. App. vol. V at 62 (Clayton’s affidavit in support of the 2006 petition); see also Resp. Br. at 42–43 (“[T]hough there was discussion between Mr. Hoch and Petitioner concerning good time credits, such credits were applicable to the four ot her crimes to which Petitioner was pleading guilty.”). But he never clai med he received advice that he could discharge his murder sentence until afte r the state-court evidentiary hearing. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2021  affidavits from Clayton’s wife and brother-in-law stating that he would not have pleaded guilty but fo r Hoch’s promise of parole, see Aplt. App. vol. V at 79, 82;

 the inference (which Clayton made explicit during the evidentiary hearing, see Aplt. App. vol. II at 102) that a defendant in pretrial detention for fifteen months would not suddenly choose to enter a blind plea without some inducement;

 the inference that a defendant who had just extricat ed himself from a blind plea after twenty years of co llateral proceedings would not enter another blind plea withou t some inducement; and

 the inherent attractiveness of the purported plea deal ( i.e. , only about three more months in prison). As for evidence that Clayton did not rely on Hoch’s promise of parole, the record before the OCCA contained one item, namely, the pre-plea form completed by Hoch on Clayton’s behalf (and signed by Cl ayton), where the answer “No” is circled for the question, “Have you been . . . promis ed anything by anyone to have you enter your plea(s)?” Aplt. App. vol. V at 7. An d, in rebuttal, Clayton testified that Hoch never read that part of the form to him. See Aplt. App. vol. II at 101. “[A]n imperfect or even an incorrect determination of the facts isn’t enough for purposes of § 2254(d)(2).” Grant v. Trammell , 727 F.3d 1006, 1024 (10th Cir. 2013). It is also not enough that th is court “would have reached a different conclusion in the first instance.” Wood v. Allen , 558 U.S. 290, 301 (2010). We must Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2122 defer to the state court’s conclusion unl ess it falls outside the range in which “reasonable minds reviewing th e record might disagree.” Id. (internal quotation marks and brackets omitted). Moreover, Clay ton appears not to dispute the state’s argument, see Resp. Br. at 13, 31, that the stat e court’s factual determination “shall be presumed to be correct” and he bears “the burden of rebutti ng [that] presumption by clear and convincing eviden ce,” 28 U.S.C. § 2254(e)(1). 5 Despite this high bar, we are persuaded that Clayton has rebutted the presumption of correctness, and that th e OCCA’s decision was unreasonable on the record before it. As explained, the OCCA ’s finding presumes that Hoch told Clayton about an unwritten parole deal. Under that presumption, the only piece of evidence contradicting Clayton’s claim that this i nduced him to plead guilty is the pre-plea form’s statement that he r eceived no promises. But, if one presumes (as the OCCA did) that Hoch conveyed a parole deal , the pre-plea form lo ses essentially all evidentiary value beca use its denial that promises we re made is n ecessarily false. 6

5 The relationship between § 2254(d)(2) and § 2254(e)(1) is an open question, but Clayton does not dispute § 2254(e)(1)’s applicability, so we presume he must satisfy both § 2254(d)(2 ) and § 2254(e)(1). See Johnson v. Martin , 3 F.4th 1210, 1218 n.4 (10th Cir. 2021), cert. denied , 142 S. Ct. 1189 (2022), and cert. denied , 142 S. Ct. 1350 (2022).

6 In other words, the “formidabl e barrier” usually imposed by “the representations of the defendant, his lawyer , and the prosecutor at [a change-of-plea] hearing, as well as a ny findings made by the j udge accepting the plea,” Blackledge v. Allison , 431 U.S. 63, 73–74 (1977), was neces sarily overcome in this instance, because the OCCA presumed that a promis e of parole existed despite the pre-plea form’s denial that a ny promises were made. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2223 For these reasons, we hold the OCCA unr easonably concluded th at “[t]here is no credible evidence that [Clayton] pleaded guilty because of counsel’s prediction or promise that he would be parole d.” Aplt. App. vol. I at 187.
C. De Novo Review of Clayton’s Claim Our holding that the O CCA’s decision was based on an unreasonable factual determination does not automa tically entitle Clayton to habeas relief. Rather, it allows us to review Clayton’s ine ffective-assistance claim de novo. See Byrd v. Workman , 645 F.3d 1159, 1172 (10th Cir. 2011). Again, ineffective assistan ce of counsel requires (1 ) constitutionally deficient performance by the attorney that (2) prejudices the defendant. Strickland , 466 U.S. at 687. But “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by th e defendant as a result of the alleged deficiencies.” Id. at 697. Here, the question of prejudice is dispositive, so we go directly to that analysis. As stated previously, the standard for prejudice in th is context is “a reasonable probability that, but for counsel’s errors, he [1] would not have pleaded guilty and [2] would have insisted on going to trial.” Hill , 474 U.S. at 59. Thus, it is not enough for Clayton to establish only that he would not have agreed to enter a blind plea but for the promise of parole within a few months. He must also establish that, given correct advice ( i.e. , pleading blindly would not n ecessarily advance his parole prospects), he would have elected to go to trial. See id. at 60 (holding that the defendant failed to show prejudice because he “did not allege in his habeas petition Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2324 that, had counsel correctly in formed him about his parole eligibility date, he would have pleaded not guilty and insisted on going to trial”). 7 Clayton’s evidence on this i ssue comprises the following:

 his affidavit, in which he claims that, but for Hoch’s promises, he “would not have pleaded blindly to the Second Degree Murder charge” and “would have exercised [his] right to [a] jury trial,” Aplt. App. vol. V at 64;

7 Discussing this claim in terms of in effective assistance and prejudice seems out-of-place given the underlying accusation ag ainst Hoch. Clayton does not assert that Hoch gave good-faith but incorrect a dvice about parole elig ibility. He asserts, rather, that Hoch lied to him, or was at least egregiously misinformed, about a deal to make parole within three months. That app ears to fit more cleanly within a different claim, namely, that Clayton was co erced into an involuntary plea. See Machibroda v. United States , 368 U.S. 487, 493 (1962) (“A guilty plea, if induced by promises or threats which deprive it of the character of a voluntary act, is void. A conviction based upon such a plea is open to collatera l attack.”). And indeed, from 2005 (when he filed his first st ate postconviction challenge to th e 2004 guilty plea) up through the conclusion of the 2014 evidentiary hearing, Clayton argued this claim in terms of voluntariness, not ineffectiv e assistance. After that hearing, however, Clayton reframed the claim around ineffective assi stance, emphasizing Hoch’s good-faith but incorrect advice about discharge and de-e mphasizing the claim about a promise of parole. Clayton’s reframing has two important c onsequences. Firs t, he failed to exhaust his original voluntariness claim be fore the OCCA. Viewing Clayton’s claim through the ineffective-assi stance lens, the OCCA assume d Hoch gave the claimed advice and then skipped to the prejudice elem ent. Had Clayton made clear that he was still arguing simple voluntariness, th e OCCA could not have jumped to the prejudice question because no such element exis ts for a voluntariness claim. In other words, the OCCA would have been forced to decide whether it believed Hoch’s testimony or Clayton’s testimony about what happened at the pre-plea conference in 2004. Second, Clayton’s § 2254 petiti on argues entirely from an ineffectiveassistance perspective, so he forfeited his vo luntariness theory in the district court. For these reasons, we also di scuss Clayton’s claim solely in terms of ineffective assistance. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2425  his wife’s affidavit, which stat es, “But for the assurances and representations of Mr. Hoch[,] [Clayt on] would not have entered a blind plea to the second degree murder ch arge and would have insisted on going to trial,” id. at 79; and

 his brother-in-law’s affidavit, wh ich likewise states, “But for the assurances and representations of Mr. Hoch, [Clayton] would not have entered a blind plea to the second de gree murder charge and would have insisted on going to trial,” id. at 82. The district court found this evidence was not enough “to show a reasonable probability that, but for counsel’s alleged errors, [Clayton] would have insisted on going to trial. A petitioner’s mere allegation that he w ould have gone to trial is insufficient.” Id. at 137–38 (citing Miller v. Champion , 262 F.3d 1066, 1072 (10th Cir. 2001)). We agree. These assertions are conclusory, essentially mimicking the language of Hill , which is not enough. See Miller , 262 F.3d at 1072. A defendant must “persuade[] us that going to trial w ould have been rational in light of the objective circumstances of his case.” Heard v. Addison , 728 F.3d 1170, 1184 (10th Cir. 2013). This usually involves discussion of factors such as unmade but available legal and evidentiary arguments and affirma tive defenses, the wei ght of the evidence against the defendant, the risk of an unsym pathetic jury, and se ntencing exposure. See id. at 1183, 1186. At a minimum, ho wever, the defendant must provide some explanation why he or she would rationall y take the risk of going to trial. See, e.g. , Lee v. United States , 137 S. Ct. 1958, 19 67–69 (2017) (holding that the difference Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2526 between certain deportation upon pleading gu ilty and almost certain deportation after trial was a rational reason to insist on going to trial, given a defendant whose overriding priority was to avoid deportation). Despite the district court’ s explicit conclusion that Clayton’s insistence on going to trial did not rise above a “mere allegation,” Aplt. App. vol. V at 137–38, Clayton’s opening brief contai ns no relevant discussion of this point. Instead, as in the district court, he continues to assert that he would have go ne to trial, with no further explanation. See Opening Br. at 12, 18–19. Moreover, the state, in its response brief, accuses Clayt on of precisely this fault, see Resp. Br. at 40–41, and Clayton’s reply brief again offe rs no explanation. Thus, Cl ayton has failed to support his claim that he likely wo uld have gone to trial. The state further argues that going to tr ial would not have been rational given that his prior convictions ma de him eligible for a life sentence on each of the five charges against him. See id. at 41–42. But pleading b lindly likewise exposed him to a life sentence on all charges. Thus, absent more factua l context (which the state does not provide), we do not see how senten cing exposure would make going to trial irrational. Even so, the state’s argument draws our attention to a feature of Clayton’s claim that further demonstrat es his failure to support the prejudice element. Clayton, his wife, and his brother-in-law specificall y said he would not have pleaded guilty to the second-degree murder charge and would have instead gone to trial, as if he could have pleaded differently to that charge alone. See supra . This is consistent with Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2627 Clayton’s letter to Hoch shortly after the 2004 sentencing. See Aplt. App. vol. IV at 247 (“Mr. Hoch, in view of these matt ers I am requesting you to appeal or withdraw my plea to count one (m urder) . . . .”). But, as fa r as we are aware, this is not the situation Clayton faced in 2004 when he was deciding whether to plead guilty. Clayton points us to nothing in th e record suggesting he could have pleaded guilty to the non-murder charges and then go ne to trial on the murder charge, much less that Hoch advised him to this effect . Thus, his insistence that he would have taken the murder charge to tr ial is not only conclusory, but also refers to a choice that apparently was never before him wh en deciding whether to plead guilty. Clayton therefore has not met his burden to establish prejudice. Heard , 728 F.3d at 1184

. Accordingly, he fails to prove his ineffective- assistance claim.
IV. DENIAL OF COA AS TO INADE QUATE-FACTUAL-BASIS CLAIM The second claim Clayton litigated in the district court was that, when pleading guilty, he did not admit enough fact s to satisfy the “depraved mind” element of second-degree murder under Oklahoma law. Cf. Okla. Stat. tit. 21, § 701.8(1) (“Homicide is murder in the second de gree . . . [w]hen perpetrated by an act imminently dangerous to anot her person and evincing a depr aved mind, regardless of human life, although without any premedita ted design to effect the death of any particular individual . . . .” ). Our order granting a COA on his ineffective-assistance claim said nothing about his inadequate-fa ctual-basis claim. We now explain why the latter claim does not merit a COA. Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2728 Before the state courts and the district court, Clayton argued that, at most, he satisfied only the “imminently dangerous” element by running a red light. But the OCCA held that “operating a vehicle in a reckless and unsafe manner while attempting to avoid apprehension for a felony is imminently dangerous conduct evincing a depraved mind and extreme disregar d of a high risk of injury or death to others.” Aplt. App. vol. I at 187. “[T]his court is bound by the state cour t’s interpretation of its own law.” Hawkins v. Mullin , 291 F.3d 658, 662 (10th Cir. 2002) . Clayton asserts, however, that he “has not found a single case from the Oklahoma Court of Criminal Appeals that would support a conviction for [s]ec ond [d]egree depraved mind murder when an accused admits to simple inatte ntive or reckless driving, without more.” Mot. for a COA at 31. Perhaps this alludes to the th eory that a state cour t’s interpretation of state law can be “so arbitr ary or capricious as to c onstitute an i ndependent due process . . . violation.” Lewis v. Jeffers , 497 U.S. 764, 780 (1990). But Clayton does not specifically argue as much . And if he meant to, he did not properly exhaust this claim in his state postconviction proceeding. See Duncan v. Henry , 513 U.S. 364, 365–66 (1995) (holding that, to properly exhaust a clai m that a state-law error amounted to a federal constitutional violation, the state prisoner mu st alert the state courts to the federal constitutional problem). For these reasons, “reasonable jurists would [not] find the district court’s assessment of the constitutiona l claims debatable or wrong.” Slack v. McDaniel , 529 Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 2829 U.S. 473, 484 (2000). We th erefore deny a COA as to Clay ton’s claim that his guilty plea lacked an adequa te factual basis.
V. CONCLUSION For the reasons stated above, we affirm that portion of the district court’s judgment denying § 2254 relief on Clayton’s ineffective-assistance- of-counsel claim. We deny a COA as to the portion of the district court’s j udgment denying § 2254 relief on Clayton’s inade quate-factual-basis claim.

Entered for the Court
Nancy L. Moritz Circuit Judge Appellate Case: 20-7015 Document: 010110756049 Date Filed: 10/20/2022 Page: 29