IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-20624

RONALD NELSON DANIEL,

Petitioner-Appellant,

versus

JANIE COCKRELL, DIRECTOR,

TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

INSTITUTIONAL DIVISION,

Respondent-Appellee.

Appeal from the United States District Court

for the Southern District of Texas

February 25, 2002

Before GARWOOD, JOLLY, and DeMOSS, Circuit Judges.

GARWOOD, Circuit Judge:

Petitioner-appellant Ronald Nelson Daniel appeals the district

court’s denial of habeas corpus relief as to his Texas conviction for

the aggravated sexual assault of a child. Daniel contends that: (1) his

guilty plea was not voluntary because his lawyer assured him he would

be sentenced by a different judge; and (2) such assurance constituted

ineffective assistance of counsel. We affirm the district court’s1 In Texas, if the punishment for an offense is not absolutely fixed

by law, the defendant may plead gu ilty and have the jury assess

punishment. See T EX

. C RIM

. P ROC

. C ODE A NN . § 26.14.

2 denial of relief.

Facts and Proceedings Below

Ronald Danie l molested his niece for two years beginning when she

was six years old. Daniel forced her to wear a blindfold while he: (1)

fondled her; (2) digitally penetrated her vagina; (3) rubbed his crotch

against hers; and (4) forced her to straddle him. Daniel never had

vaginal intercourse with her.

On March 4, 1994, Daniel was indicted for the aggravated sexual

assault of a child. His case was assigned to the 338th District Court

of Harris County, in which Judge Mary Bacon presided. Daniel had a

desire to plead guilty be cause it would spare his niece the anguish of

testifying to his acts of molestation. Daniel’s counsel, James Leitner,

i nformed him of Judge Bacon’s reputation for imposing very ha rsh

sentences for sexual offenders, especially where the victim was a child.

Leitner advised Daniel against pleading guilty to Judge Bacon without

an agreed sentence recommendation from the State, and recommended to

Daniel that he plead guilty to a jury. 1 The case was set for trial on

August 1, 1994. On that day, visiting Judge William Hatten was

presiding instead of Judge Bacon. The prosecutor, Jay Hileman, told

Leitner that the case could be reset to a date on which Judge Bacon

would preside or that Judge Hatten could handle the case. Leitner

consulted with Judge Brian Rains, who had served as chief prosecutor in2 Judge Hatten would have had jurisdiction to sentence Daniel. See

Johnson v. Bussey

, 95 S.W.2d 990, 992 ( Tex. Civ. App. 1936) (observing

that the return of the regular judge does not oust the special judge of

jurisdiction to “make orderly disposition of the matters which have been

undertaken by him.”). However, it was not improper for Judge Bacon to

sentence Daniel. See Jackson v. State , 680 S.W.2d 809, 814 (Tex. Crim.

App. 1984).

3 Judge Hat ten’s court. After hearing the facts of Daniel’s case, Judge

Rains expressed the view that Judge Hatten would be “very fair” in

sentencing Daniel. As a result, Leitner advised Daniel to plead guilty

to Judge Hatten. When Daniel questioned whether Judge Hatten would

sentence him, Leitner assured him that he would. It is undisputed that

the time-honored custom of the Harris County criminal courthouse is that

if a defendant pleads guilty to a visiting judge he will also be

sentenced by that visiting judge. On August 1, 1994, Daniel pleaded

guilty before Jud ge Hatten to the aggravated sexual assault of a child

in violation of T EX

. P ENAL C ODE A NN . § 22.021(a)(1)(B).

Daniel’s sentencing hearing was held on September 16 and 19, 1994.

Judge Bacon presided. Because Leitner did not want to anger Judge Bacon

(and thereby harm his client) by questioning her authority, he did not

object to Judge Bacon’s participation. 2 Leitner presented evidence of

Daniel’s progress in receiving treatment for his pedo philia. Leitner

called Daniel as a witness and the following relevant exchanges took

place:

“Q You understand when you entered your plea that the

Court had a range of punishment anywhere from deferred

adjudication to life in the penitentiary?

A Yes.

....4

Q You understand that no matter what happens to you in

this case it’s not the Judge’s fault. It’s not

anybody’s involved fault. It’s simply you.

A Yes, I do.”

Judge Bacon sentenced Daniel to the maximum penalty provided for by

Texas law—life in prison and a $10,000 fine. Judge Bacon offered Daniel

an opportunity to speak after sentencing, but Daniel declined.

On October 19, 1994, Daniel moved for a new trial on the grounds

that: (1) Leitner’s assurance that Judge Hatten would be the sentencing

judge rendered his guilty plea inv oluntary under the United States and

Texas Constitutions; ( 2) Leitner’s failure to object to sentencing by

Judge Bacon constituted ineffective assistance of counsel under the

Texas Constitution; (3) Leitner’s assurance constituted ineffective

assistance of counsel under the Texas Constitution; and (4) Daniel’s

life sentence constituted cruel or unusual punishment and was foreign

to due course of law under the Texas Constitution. On November 30,

1994, Judge Bacon denied the motion.

Daniel continued to advance these four issues on direct appeal.

On March 13, 1997, the conviction was affirmed on direct appeal by the

Court of App eals for the Fourteenth District of Texas. D aniel v. State

of Texas

, 1997 WL 109988 (Tex. App.-Hous. (14 Dist.)). On August 13,

1997, the Texas Court of Criminal Appeals denied Daniel’s petition for

discretionary review. Daniel did not seek review in the United States

Supreme Court.

On August 6, 1998, Daniel filed a petition for post-conviction

relief in state court, arguing only that his plea was involuntary under3 The district court only engaged in a Teague v. Lane

, 109 S.Ct.

1060 (1989), analysis for Daniel’s Brady claim and concluded that

Teague’s non-retroactivity rule prevented it from granting the petition.

The district court did not apply Teag ue to Daniel’s ineffective

assistance claim.

5 Bra dy v. United States , 90 S.Ct. 1463 (1970). On October 28, 1998, the

trial court, Judge William Hatten presiding, recommended denial of the

petition on the m erits, adopting the State’s proposed findings of fact

and order. On March 31, 1999, the Texas Court of Criminal Appeals

denied relief on the basis of the trial court’s findings. Daniel did

not seek review in the United States Supreme Court.

On June 30, 1999, Daniel filed the instant federal petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254. On June 19, 2000,

the district court gran ted the State’s motion for summary judgment and

dismissed the petition. The district court granted a certificate of

appealability as to three issues, namely whether: (1) Daniel’s guilty

plea was involunt ary because of Leitner’s assurance that Judge Hatten

would impose sentence; (2) Leitner’s assurance constituted ineffective

assistance of counsel; and (3) the district court correctly concluded

that the Teague doctrine preclud ed relief. 3 Daniel also argued in the

district court that counsel was ineffective for failing to object to

J udge Bacon’s participation at sentencing, but the district court did

not grant a certificate of appealability on that issue, and it is

therefore not before us. On July 13, 2000, Daniel filed notice of

appeal to this Court.

I. Standard of Review4 See Green v. Johnson , 116 F.3d 1115, 1120-21 (5th Cir. 1997).

28 U.S.C. § 2254(d) provides:

“An application for a writ of habeas corpus on behalf of a

person in custody pursuant to the judgment of a State court

shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings unless

the adjudication of the claim—

(1) resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly

established Federal law, as dete rmined 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.”

6 Daniel presented his federal Brady claim to the State on direct

appeal and in his state habeas petition. The State rejected this claim

without relying on a procedural bar. There appears no basis on which

the State could have disposed of this claim on procedural grounds.

Daniel’s Brady

claim was, therefore, adjudicated on the merits in state

court and is entitled to review under the deferential standard of 28

U.S.C. § 2254(d). 4

In contrast, Daniel’s ineffective assistance of counsel claims

relied e xclusively on state law and alleged violation only of the Texas

Constitution. All three times Daniel argued his ineffective assistance

of counsel claims before the state courts he specifically stated that

the applicable standard was not that set forth in Strickland v.

Washington

, 104 S.Ct. 2052 (1984). At that time, Texas did not require

a showing of prejudice to establish inef fective assistance of counsel

in the noncapital sentencing context. S ee Hernandez v. State

, 988

S.W.2d 770, 72 (Tex. Crim. App. 1999) (overruling Ex Parte Cruz

, 7395 28 U.S.C. § 2254(b)(1) provides, in relevant part:

“An application for a writ of habeas c orpus on behalf of a person

in custody pursuant to the judgment of a State court shall not be

granted unless it appears that—

(A) the applicant has exhausted the remedies available in the

courts of the State;”.

6 28 U.S.C. § 2254(b)(2) provides: “An application for a writ of

habeas corpus may be denied on the merits, notwithstanding the failure

of the applicant to exhaust the remedies available in the courts of the

State.”

7 S.W.2d 53 (Tex. Crim. App. 1987), which had held Strickland

inapplicable). Because Daniel did not argue that his rights under the

Sixth Amendment had been violated, specifically disclaimed reliance on

the federal ineffective assistance of counsel standard and proceeded

solely under a materially different theory of establishing ineffective

assistance of counsel, Daniel’s federal ineffective assistance of

counsel claim was not adjudicated on the merits in state court.

Likewise, because the “substantial equivalent” of the S trick land claim

Daniel now advances was not “fairly presented” in any state court,

Daniel has clearly not exhausted this claim. S ee Wh itehead v. Johnson

,

157 F.3d 384, 87 (5th Cir. 1998). The State has not argued Daniel’s

failure to exhaust this claim as a ground for dismissal of his petition.

Nevertheless, 28 U.S.C. § 2254(b)(1)(A) 5 prevents this Court from

granting Daniel’s petition unless the State, through counsel, has

expressly waived the exhaustion requirement. The State has not

expressly waived the exhaustion requirement. 28 U.S.C. § 2254(b)(2) 6

empowers this Court to deny Daniel’s application notwithstanding his

failure to exhaust his federal claims in state court.7 See Graham v. Johnson

, 94 F.3d 958, 968 (5th Cir. 1996) (“The

exhaustion doctrine, generally codified in section 2254(b) & (c),

requires that normally a state prisoner’s entire federal habeas petition

must be dismissed unless the prisoner’s state re medies have been

exhausted as to all claims raised in the federal petition.” (emphasis

in original)).

Of course, this court has discretion to hold that the State’s

silence has effected a waiver of the exhaustion requirement where

failure to so hold would result in “unnecessary delay in granting relief

that is plainly warranted.” G ranberry v. Greer

, 107 S.Ct. 1671, 1676

(1987).

8 The deferential standard of section 2254(d) applies to Daniel’s

Brady claim but not to his ineffective assistance of counsel claim.

Review of the latter is governed by the principles of Teague v. Lane

,

109 S.Ct. 1060 (1989). S ee Fisher v . Texas , 169 F.3d 295, 304 (5th Cir.

1999) (“ Teague still applies to a petitioner’s claim that has not been

adjudicated on the merits by a state court and that is not procedurally

barred.”). If, applying the AEDPA (28 U.S.C. § 2254(d)) to Daniel’s

Brady cl aim and Teague to his ineffective assistance of counsel claim,

we are not able to deny all relief, then we would ordinarily be required

to dismiss Daniel’s entire petition for failure to comply with the

exhaustion requirement. 7

II. Voluntariness of Daniel’s Plea

Dan iel argues that his guilty plea was involuntary because it was

induced by Leitner’s unfulfilled promise that Judge Hatten would be the

sentencing judge. In his affidavit, Daniel states: “Had I known when

I waived my rights and entered a plea to Judge Hatten he was not going

to assess punishment and that Judge Bacon was going to get involved in8 Citing Shelton v. United States , 246 F.2d 571, 572 n.2 (5th Cir.

1957) (en banc) (quoting panel dissenting opinion), rev’d on confession

of error on other grounds, 78 S.Ct. 563 (1958). B rady and Shelton each

uphold denial of claim that the plea was involuntary.

9 my case at sentencing, I would have pled guilty to a jury.” Daniel does

not claim the existence of a plea agreement conc erning the identity of

the sentencing judge. Nor does he claim that he had the right to be

sentenced by the judge of his choice or argue any other ground for

involuntariness. The record reflects that in all other respects Daniel

completely understood the consequences of his guilty plea.

Because a guilty plea involves the waiver of constitutional rights

it must be voluntary, knowing and intelligent. Brady v. United States

,

90 S.Ct. 1463, 1468-69 (1970). In Brady the Supreme Court stated:

“The standard as to the voluntariness of guilty pleas must

be essentially that defined by Judge Tuttle of the Court of

Appeals for the Fifth Circuit:

‘[A] plea of guilty entered by one fully aware of

the direct consequences, including the actual

value of any commitments made to him by the court,

prosecutor, or his own counsel, must stand unless

induced by threats (or promises to discontinue

improper harassment), misrepresentation (including

unfulfilled or unfulfillable promises), or perhaps

by promises that are by their nature improper as

having no proper relationship to the prosecutor’s

business (e.g. bribes).’” Id . at 1472 (inside

quotation marks omitted). 8

See also United States v. Amaya

, 111 F.3d 386, 389 (5th Cir. 1997)

(quoting a portion of the above Brady passage); McKenzie v. Wainwright

,

632 F.2d 649, 651 (5th Cir. 1980) (citing and paraphrasing the above

Brady passage; affirming denial of claim the plea was involuntary).10

Where a defendant can show that the court, the prosecutor or

defense counsel induced his guilty plea by clearly and unequivocally

guaranteeing a lesser sentence or some other specific leniency, the

guilty plea is not voluntary unless the defendant receives that which

he was promised. See Amaya , 111 F.3d at 388-89 (holding that the

district court’s legally unfulfillable promise to impose sentence as

though the government had moved for a downward departure rendered the

defendant’s guilty plea involuntary); Davis v. Butler

, 825 F.2d 892,

894-95 (5th Cir. 1987) (remanding for evidentiary hearing to determine

if defense counsel guaranteed that if the defendant pleaded guilty he

would be pardoned in three years). The defendant must generally

est ablish that an actual promise or guarantee was made by showing: (1)

the exact terms of the alleged guarantee; (2) exactly when, where and

by whom the guarantee was made; and (3) the identity of any eyewitnesses

to the guarant ee. DeVille v. Whitley , 21 F.3d 654, 58 (5th Cir. 1994).

Here, it is undisputed that Leitner told Daniel that if he pleaded

guilty to Judge Hatten, he would be sentenced by Judge Hatten.

A guilty plea is not rendered involuntary by the defendant’s mere

subjective understanding that he would receive a lesser sentence. In

other words, if the defendant’s expectation of a lesser sentence did not

result from a promise or guarantee by the court, the prosecutor or

defense counsel, the g uilty plea stands. See Spinelli v. Collins , 992

F.2d 559, 561-62 (5th Cir. 1993) (defendant’s mistaken belief that he

would be eligible for parole after five years did not render his guilty11

plea involuntary because his misunderstanding did not result from

promise by court, prosecutor or defense counsel).

Likewise, a guilty plea is not rendered involuntary because the

defendant’s misunderstanding was based on defense counsel’s inaccurate

prediction that a lesser sentence would be imposed. S ee Harmason v.

Smith , 888 F.2d 1527, 1532 (5th Cir. 1989) (defense counsel’s statement

that the defendant would probably receive less than a fifteen year

sentence did not render the guilty plea involuntary because a

“prediction, prognosis, or statement of probabilities

. . . does not

constitute an ‘actual promise’.”); United States v. Stumpf

, 827 F.2d

1027, 1030 (5th Cir. 1987) (“a defendant’s reliance on his attorney’s

erroneous prediction of leniency is not sufficient to render a guilty

plea involuntary.”); Self v. Blackburn

, 751 F.2d 789, 793 (5th Cir.

1985) (defe nse counsel’s statement that parole would be probable after

10 1⁄2 years did not render the guilty plea involuntary because it was a

mere prediction, not a guarantee); Johnson v. Massey

, 516 F.2d 1001,

1002 (5th Cir. 1975) (“Petitioner’s allegation of a breached bargain is

premised on the alleged statement to him by his own attorney that the

sentencing judge generally gave sentences of about 20 years in second

degree murder cases and that petitioner, as a first offender, might

expect such a sentence. However, a good faith but erroneous prediction

of a sentence by a defend ant’s counsel does not render the guilty plea

involuntary.”).

The district court found that, although Leitner did assure Daniel9 It is not known why Judge Hatten did not preside at Daniel’s

sentencing hearing.

10 We do know he did not die, retire or suffer an illness or a

disability which lasted from before sentencing until October 1998 (when

he ruled on Daniel’s state habeas petition).

There in no evidence that Leitner told Daniel that if for any

reason Judge Hatten did not sentence Daniel then nevertheless some judge

other than Judge Bacon would be the sentencing judge.

12 that if he pleaded guilty to Judge Hatten he would be sentenced by Judge

Hatten, Daniel’s case was like those in which counsel predicts that a

proposed course of action will probably result in a lesser sentence.

We agree with the district court that the substance of Leitner’s

statement requires its treatment as a “prediction, prognosis, or

statemen t of probabilities”, not a clear and unequivocal guarantee of

a lesser sentence. Harmason , 888 F.2d at 1532.

First, we think that the only reasonable lay person’s

understanding of Leitner’s assurance that Judge Hatten would impose

sentence is as a prediction, not an unqualified guarantee. Indeed,

there are many obvious circumstances that any reasonable lay person

would recognize as ones resulting in Judge Hatten not presiding at

sentencing. 9 Daniel knew there would be a delay of several weeks

between entry of his guilty plea and sentencing. In that time, Judge

Hatten could have died, become ill or disabled (temporarily or longer

term) or retire d and moved to Palm Beach County, Florida, or the like. 1 0

Second, even if we construe Leitner’s statement as guaranteeing

that Judge Hatten would be the sentencing judge, its substantively

predictive, probabilistic character precludes relief. Leitner did not11 See United States v. Amaya , 111 F.3d 386, 387 (5th Cir. 1997).

12 See Harmason , 888 F.2d at 1530; D eVille v. Whitley

, 21 F.3d 654,

58 (5th Cir. 1994); McKenzie v. Wainwright , 632 F.2d 649, 650 (5th Cir.

1980).

13 See Davis v. Butler

, 825 F.2d 892, 94 (5th Cir. 1987); Smith v.

Blackburn , 785 F.2d 545, 546-47 (5th Cir. 1986).

13 guarantee any of the substantive benefits that this Court has indicated

could form the basis for a Brady involuntariness claim, such as: (1) a

downward departure at sentencing; 11 (2) a lesser sentence; 12 or (3)

parole, commutation or pardon after a certain period of incarceration. 1 3

Leitner “promised” nothing more than what he predicted would be a better

roll of the sentencing dice. There was no guarantee that Judge Hatten

would have sentenced Daniel less harshly than Judge Bacon. Any value

of Leitner’s promise was wholly dependent on the probability that Judge

Hatten would i mpose a less severe sentence than Judge Bacon would. The

s tatement “you will probably be sentenced by Judge Hatten, and he will

probably sentence you less harshly than would Judge Bacon” is not in

this respect materially different from “you will definitely be sentenced

by Judge Hatten, and Judge Hatten will probably sentence you less

harshly than would Judge Bacon.” In neither case has a light or lighter

(or particular) sentence been promised

.

Leitner’s assurance that Judge Hatten would be the sentencing judge

simply lacked the requisite certainty as to actual sentencing benefit

to render Daniel’s plea involuntary under Brady

. Daniel concedes, as

he must, that he has no right to be sentenced by the judge of his choice14

and that Judge Bacon had jurisdiction to sentence him. Leitner’s

assurance merely gave rise to the hope of leniency. We are not aware

of any case vacating a guilty plea because the defendant was promised

sentencing by a judge his lawyer predicted would be lenient. At the

sentencing hearing before Judge Bacon, Daniel testified that he was

aware that he could be sentenced to life in prison. Daniel’s guilty

plea was knowing and voluntary.

This Co urt has interpreted the AEDPA, 28 U.S.C. § 2254(d), as only

allowing the Supreme Court to announce new rules for purposes of federal

habeas. W illiams v. Cain

, 229 F.3d 468, 474 (5th Cir. 2000). The

State’s rejection of Daniel’s involuntariness claim was not contrary to

or an unreasonable application of that federal law which has been

clearly established by the Supreme Court. We affirm the district

court’s grant of summary judgment for the State as to Daniel’s

involuntariness claim.

III. Ineffective Assistance of Counsel

Daniel claims that Leitner’s assurance that Judge Hatten would

impose sentence constituted ineffective assistance of counsel which

rendered his plea involuntary. Daniel’s ineffective assistance claim

is basically a repeat of his voluntariness claim, except that now the

emphasis is on Leitner’s statement as bad advice, not as a broken

promise.

As previously noted, the merits of this federal ineffective

assistance of c ounsel claim were not ruled on by (because specifically14 The claim is thus unexhausted. But, as we have earlier observed,

the State has neither raised nor expressly waived exhaustion, and hence

we may d eny relief on this claim. See notes 5, 6, and 7 and

accompanying text supra . We also note that the State does not urge that

this claim has been procedurally defaulted.

15 withheld from) the state courts, so the claim is not governed by section

2254(d). 1 4 Review of this claim is hence governed by the principles set

forth in Teague v. Lane

, 109 S.Ct. 1060 (1989). Teague held that a

federal court may not create or apply new constitutional rules on habeas

review. Fisher v. Texas , 169 F.3d 295, 305 (5th Cir. 1999). The Teague

analysis involves three deter minations: (1) when the applicant’s

conviction became final; (2) whether a state court considering the

applicant’s f ederal claim when his conviction became final would have

felt compelled by existing precedent to apply the rule the applicant now

seeks; and (3) if the applicant seeks to apply a new rule, whether that

rule falls within one of the narrow exceptions to the non-retroactivity

principle. Id

.

As Daniel did not file a petition for certiorari with the United

States Supreme Court, his conviction became final on November 11, 1997,

ninety days after the Texas Court of Criminal Appeals denied his

petition for discretionary review. We now survey the legal landscape

as it then existed to determine if a state court would have felt

compelled by then existing federal law to provide the relief Daniel

seeks.

I n Strickland v. Washington

, 104 S.Ct. 2052, 2064- 68 (1984), the

Supreme Court held that a defendant claiming ineffective assistance of16

counsel must show that: 1) trial counsel’s performance was deficient;

and 2) the deficient performance prejudiced the defendant. Daniel’s

ineffective assistance of counsel claim fails to surmount either

Strickland hurdle.

According to the affidavit of Judge Rains, it was the custom and

practice in Harris county that the judge who accepted the defendant’s

plea woul d also impose sentence. Daniel does not dispute that this was

in fact the case. In advising Daniel to plead guilty to Judge Hatten,

it would certainly have been better for Leitner to explain this

longstanding practice and that it was very likely (but not certain) that

Judge Hatten would impose sentence; however, Leitner’s failure to so

explain did not transform Leitner’s otherwise good advice into deficient

performance. In other words, in light of the undisputedly accurate

information Leitner possessed after his discussion with Judge Rains and

due to the inherent predictive, probabilistic nature of his assurance

that Judge Hatten would impose sentence, Leitner’s advice was not so far

off the mark as to fall “outside the wide range of professionally

competent assistance.” Strickland , 104 S.Ct. at 2066.

Daniel never formally addresses the prejudice element of

Strickland , but we glean from his briefs that he finds prejudice in the

waiver of his Texas statutory right to be sentenced by a jury, which

Daniel attributes to Leitner’s bad advice. The record indicates that

Daniel was determined to plead guilty and he concedes that he has no

federal constitutiona l or federal statutory right to be sentenced by a15 Strickland states in this respect:

“We need not consider the role of counsel in an ordinary

sentencing, which may involve informal proceedings and

standardless discretion in the sentencer, and hence may

require a different approach to the definition of

constitutionally effective assistance. A capital sentencing

proceeding like the one involved in this case, however, is

sufficiently like a trial in its adversarial format and in

the existence of standards for decision

. . . (citations

omitted) that counsel’s role in the proceeding is comparable

to counsel’s role at trial–to ensure that the adversarial

testing process works to produce a just result under the

standards governing decision.” Id.

17 jury.

Strickland generally defined prejudice as “a reasonable probability

that, but for couns el’s unprofessional errors, the result of the

proceeding would have been different.” I d

. at 2068. However,

Strickland expressly l eft open the question of the proper standard for

claims of ineffective assistance at noncapital sentencing proceedings.

Id

. at 2064. 15 This Court has held that in the noncapital sentencing

context, prejudice requires a showing of a reasonable probability that,

absent counsel’s unprofessional errors, the noncapital sentence would

have been “ significantly less harsh.” S

priggs v. Co llins , 993 F.2d 85,

88 (5th Cir. 1993) (emphasis in original). S ee also United States v.

Stewart

, 207 F.3d 750, 751 (5th Cir. 2000) (same); Durrive v. United

States

, 4 F.3d 548, 551 (7th Cir. 1993) (quoting with approval this

portion of Spriggs ); Martin v. U nited States , 109 F.3d 1177, 1178 (7th

Cir. 1996) (must show “counse l’s deficient performance led to a16 In Spriggs we noted that “one foreseeable exception to this

requirement” (of showing that but for counsel’s error the sentence

likely would have been significantly less harsh) “would be when a

deficiency by counsel resulted in a specific, demonstrable enhancement

in sentencing

– such as an automatic increase for a ‘career’ offender

or an en hancement for use of a handgun during a felony – which would not

have occurred b ut for counsel’s error”. Id . at 89 n.4. That potential

exception was held inapplicable in Spriggs

, and is likewise plainly

inapplicable here. In United States v. Phillips , 210 F.3d 345 (5th Cir.

2000), we, for the first time, applied this Spriggs exception. In

Phillips counsel ’s deficient performance resulted in an improper

obstruction of justice guideline e n hancement which raised the

defendant’s guideline range from 121 to 151 months to 151 to 188 months

and defendant was sentenced to 188 months. I d

. at 351. Nothing

remotely comparable is present here.

17 However, Glover can also be fairly read as app lying the S priggs

exception described in note 16, supra

. In G lover the Court assumed

arguendo that counsel’s deficient performance in respect to whether the

offenses of conviction should be grouped for purposes of the guidelines

led to an improper guideline range increase of from 63 to 78 months to

78 to 97 months, and the defendant’s sentence was 84 months. I d

., 121

S.Ct. at 699. The Court noted that “the amount by which a defendant’s

sentence is increased by a particular decision . . . under a determinate

system of c onstrained discretion such a s the Sentencing Guidelines . .

. cannot serve as a bar to a showing of prejudice”, and went on to

compare Spriggs

, which it cha racterized as involving “the Texas

discretionary sentencing scheme” with Phillips (see note 16, supra )

which it stated involved “the Sentencing Guidelines.” G lover at 701

(emphasis added). The G lover opinion then continues by stating “Here

we consider the sentencing calculation itself, a calculation resulting

fr om a ruling which, if it had been error, would have been correctable

on appeal”. I d. Here we deal with the Texas discretionary sentencing

scheme, not with a system of “constrained discretion” and we do not deal

with a claimed ruling which affects “the sentencing calculation.”

18 ‘significant’ increase in the sentence”). 16 In Glover v. United States

,

121 S.Ct. 696 (2001), the Supreme Court arguably cast doubt on the

Spriggs “significantly less harsh” rule and may have impliedly rejected

it in total. 17 In any event, G lover was decided more than three years

after Daniel’s conviction became final and accordingly ca nnot be19

considered as a basis for relief unless one of the two Teague exceptions

applies. We hold that neither exception is applicable. Consequently,

Spriggs states the applicable test.

Daniel’s claim that counsel’s deficient performance resulted in a

non-preferred sentencing proceeding is not precisel y the same as

claiming ineffective assistance during a particular sentencing

proceed ing. However, advice concerning the choice of sentencing

proceeding certainly constitutes assistance in the noncapital sentencing

context and is, therefore, governed by the principles set forth in

Spriggs

. Daniel does not even attempt to make the S priggs -required

showing that the jury would have sentenced him significantly less

harshly than Judge Bacon.

The Supreme Court has el aborated on S trickland’s prejudice

requirement in two other potentially relevant situations. First, in

Hill

, the Supreme Court applied Strickland to claims of ineffective

assistance arising out of the plea process. Hill v. Lockhart , 106 S.Ct.

366, 370 (1985). Hill’s counsel erroneously informed him that he would

be eligible for parole after serving one-third of his sentence. In

fact, Hill would not be so eligible until serving half of his sentence.

Id . at 368. To establish prejudice in this context, “the defendant must

show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and would have insisted on

going to trial.” I d

. at 370. In Hill’s situation, which is typical,

the defendant has only two choices: plead guilty an d be sentenced by a20

jud ge or stand trial. Hill simply recognized that unless the defendant

could show that absent defense counsel’s bad advice he would have stood

trial, there was no possibility of prejudice because the defendant would

have nothing else to do except exactly what he did–plead guilty.

Significantly, Daniel had a choice not open to Hill: sentencing by

a jury. H ill should not be read as a definitive statement from the

Supreme Court that defendants in Daniel’s situation can only establish

prejudice by claiming they would have stood trial. Hill does not itself

necessarily foreclose Daniel’s prejudice argument. However, H ill ’s

silence concerning Daniel’s unique situation is inadequate to render a

finding of prejudice dictated by existing precedent, especially in light

of our decision in Spriggs

.

Second, in Roe v. Flores-Ortega , 120 S.Ct. 1029, 1038 (2000), the

Supreme Court considered the meaning of prejudice in the context of a

claim that defense coun sel failed to consult with the defendant

regarding the first appeal as of r ight. Consistent with H ill

, FloresOrtega held that prejudice requires showing a reasonable probability

that, absent defense counsel’s failure to consult, an appeal would have

been taken. I d

. at 1039. F lores-Ortega was decided over two years

after Daniel’s conviction became final and ther efore cannot be

considered as a basis for relief unless one of the two Teague exceptions

is satisfied. We hold that neither is. In any event, we agree with the

district court that the rule of Flores-Ortega does not help Daniel

because he did not forfeit an entire judicial proceeding–he simply chose21

one sentencing proceeding over another.

A state court would not have b een compelled by precedent existing

when Daniel’s conviction became final to find that Leitner’s performance

was constitutionally deficient or that the alleged deficiency in

Leitner’s performance resulted in prejudice. Thus, Teague’s nonre troactivity rule precludes relief unless the new rules Daniel seeks

fall into one of the exceptions to the rule. The two exceptions are for

new rules that: (1) place certain kinds of “primary, private individual

conduct beyond the po wer of the criminal law-making authority to

proscribe”; or (2) are implicit in the concept of ordered liberty.

Fish er , 169 F.3d at 306. The first exception is clearly not implicated

here.

As to deficient performance, Leitner’s statement that Judge Hatten

would be the sentencing judge was clearly reasonably based on the

longstanding custom of the Harris County courts. His failure to foresee

that in this one instance it would not (for some unknown reason) be

followed, or to be more precise in hi s explanation, does not call into

question protections implicit in the concept of ordered liberty.

Likewise, Daniel cannot show prejudice under any plausible

standard. In his affidavit, Daniel states that if he had known Judge

Ba con would sentence him instead of Judge Hatten, he would have pleaded

guilty to the jury. Leitner’s alleged deficient performance concerned

his purported assurance that Judge Hatten would impose sentence, not his

failure to predict that time-honored custom would be abandoned

. In22

other words, but for the deficient component of counsel’s advice, Daniel

would have been told that, based on custom in the Harris County criminal

courthouse, Ju dge Hatten would probably impose sentence. Daniel would

not have been told that Judge Bacon would impose sentence. Had Leitner

completely explained the time-honored custom of Harris County and

advised Daniel to plead guilty to Judge Hatten, it seems very likely

that Daniel would have accepted that advice. He did not state otherwise

in his affidavit, briefs or at oral argument, and there is nothing in

the record that suggest s Daniel may have rejected such advice. A rule

that allowed a finding of prejudice where there is absolutely no

evide nce that, absent counsel’s deficient performance, the defendant

would have proceede d any differently would be directly contra to

Strickland

, Hill and Flores-Ortega and is unquestionably not implicit

in the concept of ordered liberty.

Daniel has failed to establish deficient performance or prejudice.

The district court’s grant of summary judgment for the State as to

Daniel’s ineffective assistance claim is affirmed.

Conclusion

For the foregoing reasons, the district court’s dismissal of

Daniel’s habeas petition is

AFFIRMED.