PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-7297

NICANOR PEREZ RODRIGUEZ,

Petitioner - Appellant,

v.

DENNIS BUSH, Warden,

Respondent - Appellee.

No. 15-6716

NICANOR PEREZ RODRIGUEZ,

Petitioner - Appellant,

v.

DENNIS BUSH, Warden,

Respondent - Appellee.

Appeals from the United States District Court for the District 

of South Carolina, at Rock Hill. Terry L. Wooten, Chief

District Judge. (0:13-cv-03401-TLW)

Argued: September 20, 2016 Decided: November 23, 2016 

Before KEENAN, FLOYD, and THACKER, Circuit Judges.
2

Affirmed by published opinion. Judge Floyd wrote the opinion,

in which Judge Keenan and Judge Thacker joined.

ARGUED: Matthew Jay Kappel, Greenville, South Carolina, for 

Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL 

OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON 

BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief 

Deputy Attorney General, Donald J. Zelenka, Assistant Deputy 

Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH 

CAROLINA, Columbia, South Carolina, for Appellee.
3

FLOYD, Circuit Judge:

Nicanor Perez Rodriguez appeals the order of the district 

court below denying his 28 U.S.C. § 2254 petition. 

Immediately before Rodriguez’s state criminal trial for 

drug trafficking, the trial judge rejected a plea agreement 

reached between Rodriguez and the state prosecutor. The judge 

did so off the record, and gave no reason for this rejection 

other than stating that he “was ready to try a case.” J.A. 167. 

Rodriguez’s attorney did not object to the rejection of the 

plea, nor did he ask the judge to place his reasons for 

rejecting the plea on the record. Rodriguez contends that his 

counsel’s failure to object constitutes ineffective assistance 

of counsel. He asks this Court for relief under 28 U.S.C. 

§ 2254.

To prevail on an ineffective assistance of counsel claim, 

Rodriguez must show (1) “that counsel’s performance was 

deficient” and (2) “that the deficient performance prejudiced 

the defense.” Strickland v. Washington, 466 U.S. 668, 687

(1984). Rodriguez has not shown that his defense was prejudiced 

by his counsel’s alleged error. For this reason, we affirm the 

decision of the district court. 
4

I.

In 2009, a South Carolina jury convicted Rodriguez on 

multiple counts of drug trafficking. The trial court sentenced 

Rodriguez to an aggregate term of 45 years of imprisonment. 

In 2010, Rodriguez filed in state court a motion for 

postconviction relief (the “PCR Motion”). In his PCR Motion, 

Rodriguez asserted that the trial court violated his federal due 

process rights by refusing to allow him to enter a guilty plea 

pursuant to a negotiated plea agreement. Rodriguez also alleged 

that his trial counsel provided ineffective assistance by 

failing to object to the trial court’s rejection of his plea,

which then precluded appellate review of the issue.1 

The state court held an evidentiary hearing on the PCR 

Motion. At the hearing, Rodriguez’s trial counsel, James Ervin,

testified that prior to Rodriguez’s trial, the state offered 

Rodriguez a plea deal with a recommended 25-year sentence, which 

Rodriguez rejected. On the day of trial, the state offered 

Rodriguez a new plea agreement with a recommended sentence of 20 

years, which Rodriguez accepted. The state made similar offers 

to Rodriguez’s co-defendants, whose cases were also scheduled to 

go to trial that day. 

 1 Rodriguez raised another claim, regarding his counsel’s 

failure to inform him of his right to appeal, but this claim is

not relevant here. 
5

The trial judge accepted Rodriguez’s co-defendants’s pleas. 

The prosecutor and Ervin then approached the trial judge in 

chambers to inform him of Rodriguez’s plea agreement. Ervin 

testified that the trial judge said that “he was not going to 

accept the plea and that he was ready to try a case this week or 

that week.” J.A. 167. Ervin testified, “I’d never had that 

happen before. . . . So I was, myself, professionally confused 

as to how to proceed.” J.A. 168. Ervin explained that he 

attempted to persuade the judge to accept the plea deal, noting 

that the judge had just accepted Rodriguez’s co-defendants’ 

similar pleas. Ervin did not, however, object to or mention the 

court’s rejection of the plea agreement on the record. The 

trial judge never stated on the record why he refused the plea 

agreement.

The state court denied the PCR Motion as relevant to this 

appeal. It identified the relevant issues presented as:

(1) Ineffective assistance of counsel:

. . . .

b. Failure to object to the trial judge’s 

decision not to accept the plea 

recommendation.

(2) Trial judge’s refusal to accept the plea 

recommendation was a denial of due process.

J.A. 190. The court held that Rodriguez failed to meet his 

burden to show that Ervin should have objected to the judge’s 

refusal to accept the plea agreement, and that Rodriguez could 
6

not prove prejudice. Additionally, the court held that 

Rodriguez’s due process rights had not been violated. 

Rodriguez then filed a petition for a writ of certiorari in 

the Supreme Court of South Carolina, challenging the denial of 

the PCR motion. In a summary opinion, the Supreme Court of 

South Carolina denied Rodriguez’s petition for certiorari on 

this issue. See Rodriguez v. State, No. 2013-MO-023, 2013 WL 

8596567 (S.C. Aug. 14, 2013) (per curiam).2 

Rodriguez then filed the instant § 2254 petition. The 

district court below denied his petition. Rodriguez then filed

a motion for a certificate of appealability, which this Court 

granted.

II.

A.

This Court reviews de novo the district court’s decision 

denying Rodriguez’s § 2254 petition. Grueninger v. Dir., Va. 

Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016). When a state 

court has adjudicated a § 2254 petitioner’s claim on the merits,

however, the § 2254 petition may only be granted if the 

adjudication:

 2 Rodriguez also presented the direct appeal issue, not 

relevant here, which the court considered and dismissed. 
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(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). To establish that a state court 

unreasonably applied federal law, a petitioner must demonstrate 

“that the state court’s ruling on the claim being presented in 

federal court was so lacking in justification that there was an 

error well understood and comprehended in existing law beyond 

any possibility for fairminded disagreement.” Harrington v. 

Richter, 562 U.S. 86, 103 (2011).

To demonstrate ineffective assistance of counsel, Rodriguez 

must show (1) “that counsel’s performance was deficient,” and 

(2) “that the deficient performance prejudiced the defense.” 

Strickland, 466 U.S. at 687. Because the state court addressed 

the ineffective assistance claim in denying Rodriguez’s PCR 

Motion, Rodriguez must establish under § 2254(d) that the state 

court unreasonably applied Strickland. The inquiry is thus 

“whether there is any reasonable argument that counsel satisfied 

Strickland’s deferential standard.” Harrington, 562 U.S. at 

105. “The standards created by Strickland and § 2254(d) are 

both highly deferential and when the two apply in tandem, review 
8

is doubly so.” Id. (internal quotation marks and citations 

omitted). 

Although Strickland is a two-prong test, “a court need not 

determine whether counsel’s performance was deficient before 

examining the prejudice suffered by the defendant as a result of 

the alleged deficiencies. . . . If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient 

prejudice, . . . that course should be followed.” Strickland, 

466 U.S. at 697. Here, Rodriguez’s claim can be disposed of on 

the “prejudice” prong. 

To prove prejudice, “[t]he defendant must show that there 

is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” Id. at 694. 

A defendant is not prejudiced if his counsel fails to make an 

objection that is “wholly meritless under current governing 

law[.]” Lockhart v. Fretwell, 506 U.S. 364, 374 (1993).

B.

Rodriguez contends that his counsel was ineffective because 

he failed to object to the rejection of the plea agreement and 

preserve the issue for appellate review. He argues that his 

counsel should have objected and alleged a violation of federal 
9

due process. We hold, however, that an objection claiming a 

violation of federal due process rights would, in this case,

have been wholly meritless.3 The Supreme Court has clearly 

stated that there is no federal right that a plea be accepted by 

a judge. Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). As a 

result, Rodriguez was not prejudiced by his counsel’s failure to 

object. 

Rodriguez’s claim that the judge’s rejection of his plea 

violated his federal due process rights is based on language in 

Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello

states, ”There is, of course, no absolute right to have a guilty 

plea accepted. A court may reject a plea in exercise of sound 

judicial discretion.” Id. (citations omitted). Rodriguez 

asserts that this statement creates a federal due process right

that a plea only be rejected in the “exercise of sound judicial 

discretion.”

 3 Rodriguez also briefly argues that Rule 11 of the Federal 

Rules of Criminal Procedure regulates a state judge’s ability to 

reject a plea agreement. This argument is without merit as 

well. Rodriguez’s trial was a state trial. The Federal Rules 

of Criminal Procedure apply to federal trials, not state trials. 

See Fed.R.Crim.P. 1(a)(1)(“These rules govern the procedure in 

all criminal proceedings in the United States district courts, 

the United States courts of appeals, and the Supreme Court of 

the United States.”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th 

Cir. 1972) (stating that state courts are not bound by Rule 11). 
10

This contention, however, is misplaced. This reading of 

Santobello is itself untenable, and moreover, in cases after 

Santobello, the Supreme Court has made clear that there is no 

federal due process right that a plea be accepted, stating, “a 

defendant has no right to be offered a plea, nor a federal right 

that the judge accept it.” Frye, 132 S. Ct. at 1410 (citations 

omitted). Notably, the Court even cited Santobello in support 

of this proposition. See id. 

This same language was repeated in Lafler v. Cooper, 132 S. 

Ct. 1376 (2012). See id. at 1387 (quoting Frye, 132 S. Ct. at 

1410). In Lafler, the Supreme Court explained how the 

Strickland standard for ineffective assistance should be applied 

when an attorney errs in advising a defendant not to accept a 

plea agreement. Id. The Court went on to explain, “If no plea 

offer is made, or a plea deal is accepted by the defendant but 

rejected by the judge, the issue raised here simply does not 

arise.” Id. (emphasis added). This further demonstrates that 

there is no due process right that a plea be accepted by a 

judge. 

In addition, this Court has also acknowledged that there is 

no constitutional right that a plea bargain be accepted,

stating, “[a] defendant has no constitutional right to a plea 

bargain. Nor is there a constitutional right to have a plea 

bargain, once made, accepted by the court. . . . [T]he court may 
11

accept or reject the plea at its discretion.” Fields v. 

Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992)

(citations omitted). Again, Santobello was cited for this 

proposition. See id. 

Based on the above interpretations of Santobello by the 

Supreme Court and by this Court, there is not a valid argument 

that Santobello announced a constitutional due process right 

that a judge accept a plea bargain.4 For this reason, an 

objection to a judge’s plea rejection based on Santobello does 

not have merit. Rodriguez was therefore not prejudiced by his 

attorney’s failure to make this meritless objection. 

III.

Rodriguez has not demonstrated prejudice in this case. The 

objection he contends that his attorney should have made is 

without merit. As a result, we hold that the state PCR court’s 

determination that Rodriguez was not prejudiced is reasonable, 

and the district court below did not err in denying Rodriguez’s 

 4 Rodriguez also points to Seventh Circuit precedent for his 

contention that Santobello created a federal due process right 

that a plea be accepted; however, the cases he cites involve 

appeals from federal district courts (rather than state courts), 

and the interpretation of Rule 11. None of these cases invoke 

due process in their analysis. See, e.g., United States v. 

Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v. 

Davis, 516 F.2d 574, 578 (7th Cir. 1975). 
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request for relief under 28 U.S.C. § 2254. Accordingly, the 

judgment below is

AFFIRMED.