RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 12a0147p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT _________________

VONLEE NICOLE TITLOW,

 Petitioner-Appellant,

v.

SHERRY L. BURT, Warden,

 Respondent-Appellee.

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No. 10-2488

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-13614—Marianne O. Battani, District Judge.

Argued: January 17, 2012

Decided and Filed: May 22, 2012 

Before: BATCHELDER, Chief Judge; CLAY and GILMAN, Circuit Judges.

_________________

COUNSEL

ARGUED: Laura Kathleen Sutton, Manchester, Michigan, for Appellant. Laura Graves

Moody, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan,

for Appellee. ON BRIEF: Laura Kathleen Sutton, Manchester, Michigan, for

Appellant. John S. Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,

Lansing, Michigan, for Appellee.

GILMAN, J., delivered the opinion of the court, in which CLAY, J., joined.

BATCHELDER, C. J. (pp. 20–24), delivered a separate dissenting opinion.

_________________

OPINION

_________________

RONALD LEE GILMAN, Circuit Judge. Vonlee Nicole Titlow, a transgender

prisoner presently incarcerated at the Richard A. Handlon Correctional Facility in Ionia,

Michigan, appeals from the district court’s denial of her petition for a writ of habeas

corpus following her conviction in state court for the second-degree murder of her uncle.

1
No. 10-2488 Titlow v. Burt Page 2

Titlow raises several ineffective-assistance-of-counsel claims, as well as a prosecutorialmisconduct claim and a challenge to the trial court’s response to a question from the

jury.

Although the district court correctly determined that most of Titlow’s claims lack

merit or are procedurally defaulted, the court erred in concluding that Titlow failed to

establish an ineffective-assistance-of-counsel claim arising out of her plea-bargaining

experience. The Michigan Court of Appeals’ conclusion that her second attorney was

not deficient when he advised Titlow to withdraw the plea agreement negotiated by her

first attorney was unreasonable because the record reflects that the second attorney

totally failed to investigate her case prior to recommending that she withdraw the guilty

plea. In contrast to the 7-to-15-year sentence that Titlow would have received under the

plea agreement, she was convicted by a jury and sentenced to 20-to-40 years in prison.

For the reasons set forth below, we REVERSE the judgment of the district court and

conditionally GRANT the petition for a writ of habeas corpus, giving the State 90 days

to reoffer Titlow the original plea agreement or, failing that, to release her.

I. BACKGROUND

A Michigan jury convicted Titlow of the second-degree murder of her uncle,

Donald Rogers, an offense that took place in August 2000. At the time of the offense,

Titlow was living with her uncle and his wife, Billie Rogers. Donald was an alcoholic

and allegedly wealthy. In the early morning hours of August 12, 2000, police officers

were dispatched to the Rogers’ residence in Troy, Michigan, where they found Donald

dead on the kitchen floor with a drinking glass in his hand. Titlow and Billie told the

officers that they had found Donald dead on the floor when they returned from gambling

at a casino—a regular pastime of Billie’s—during the middle of the night. But the

officers noted that several aspects of the crime scene and of the women’s behavior

appeared inconsistent with what Titlow and Billie were telling them.

Although Donald’s body was taken to the medical examiner’s office, no autopsy

was ever performed. The medical examiner initially determined that the cause of
No. 10-2488 Titlow v. Burt Page 3

Donald’s death was a heart attack, with arterial sclerotic cardiovascular disease (related

to his alcoholism) as a contributing factor. His body was cremated before any further

examination was conducted. Some time later, however, Donald’s death certificate was

amended to list asphyxia by smothering as the cause of death, with acute alcohol

intoxication as a contributing factor. The amendment was based on photographs of the

corpse that showed small scrapes around Donald’s nose consistent with impressions

made by a decorative woven pillow.

Several days after Donald’s death, the officers interviewed Danny Chahine,

Titlow’s paramour. Titlow had treated Chahine to dinner shortly before the police

interview and had filled him in on some of the events that led to Donald’s death.

Chahine informed the police that Titlow had previously told him that Billie wanted to

get rid of her husband and was willing to pay Titlow $25,000 to do so. At the dinner,

Titlow told Chahine that she and Billie had found Donald passed out on the kitchen floor

when they returned from the casino. Billie then suggested that they pour vodka down

Donald’s throat while holding his nose shut, and she began doing so herself. Titlow

initially balked, but at Billie’s encouragement began pouring a small amount of vodka

down Donald’s throat and held his mouth shut. Titlow soon relented, however, stopped

Billie from pouring more vodka down Donald’s throat, and walked away. (The evidence

suggests that Billie later smothered Donald with a pillow when Titlow left the room.)

After his interview with the police, Chahine agreed to wear an audio recording device

during a subsequent dinner with Titlow, at which time Titlow again recounted the details

surrounding Donald’s death and asked Chahine to serve as an alibi for her and Billie.

Billie was the sole beneficiary of Donald’s estate. Shortly after his death, she

purchased new cars for herself and Titlow with money transferred from one of Donald’s

bank accounts. She also wrote Titlow a check for $70,260, which Titlow used to open

a certificate-of-deposit account, and gave Titlow gambling money that Billie deducted

from a ledger with $100,000 written on it. Billie also sent large sums of money to her

own daughter and mother.
No. 10-2488 Titlow v. Burt Page 4

Titlow and Billie were arrested on first-degree murder charges in January 2001.

The State decided to try them separately for their involvement in the crime. Attorney

Richard Lustig represented Titlow and negotiated a plea agreement on her behalf. Under

the agreement, the State offered to reduce Titlow’s charges to manslaughter, with a 7-to15-year sentence, on the conditions that Titlow plead guilty, submit to a lie-detector test,

testify against Billie at trial, and not challenge the prosecutor’s recommended sentencing

range on appeal. 

The state trial court held a plea hearing in October 2001. Titlow confirmed that

she had reviewed all the evidence with her attorney, understood the facts that could

support a conviction of first-degree murder, and was aware that the proposed sentencing

range exceeded the standard guidelines range for a manslaughter conviction in Michigan.

She also admitted to pouring vodka down Donald’s throat shortly before Billie

smothered Donald to death and to receiving $100,000 to remain silent about Billie’s

actions. The court accepted the plea agreement and scheduled the matter for sentencing

in December 2001.

During her confinement in a local jail between these hearings, Titlow spoke with

Eric Ott, a sheriff’s deputy assigned to the jail, who advised her not to plead guilty if she

believed that she was innocent. Ott referred Titlow to attorney Frederick Toca, who

agreed to represent her in exchange for some jewelry and the media rights to her case.

The record contains no details about Toca’s conversations with Titlow before November

29, 2001, the date set by the court to hear the motion filed by Toca to withdraw Titlow’s

guilty plea. 

On the record, the State represented that it previously had conversations with

Toca in which Toca represented that Titlow would not testify against Billie unless

Titlow’s recommended sentencing range was reduced to 3-to-15 years. Toca asserted

at the sentencing hearing that he “felt that the offer [of 7-to-15 years] was out of line,

that seven years is outside of Ms. Von Lee [sic] Titlow’s guidelines. Her guidelines are

actually two to five. . . . Based upon [the State’s refusal to accept a lower sentencing

range], your Honor, we are withdrawing.”
No. 10-2488 Titlow v. Burt Page 5

Toca also noted that he had been “retained last week” and that “[t]here’s a lot of

material here” that he still needed to review prior to trial. Titlow acknowledged her

understanding that the first-degree murder charge would be reinstated if she withdrew

her guilty plea. At no point during the November 2011 hearing did either Titlow or Toca

mention Titlow’s alleged assertions of innocence to Deputy Ott. The court ultimately

allowed Titlow to withdraw her plea because she was declining to testify at Billie’s trial.

Toca did not obtain Titlow’s file, inspect the government’s discovery materials,

or speak with Lustig (Titlow’s former counsel) about the case until January 10, 2002,

approximately a month and a half after the plea-withdrawal hearing. This despite the

fact that Lustig had made the file available to Toca around the time of the November 29,

2001 hearing, which was when Toca officially substituted himself as Titlow’s counsel.

All of this information was presented to the Michigan Court of Appeals on Titlow’s

direct appeal.

Soon after obtaining the file, Toca moved to withdraw as counsel, citing a

breakdown in communications and a lack of funds to proceed with the defense. At a

hearing in February 2002, the court questioned Toca’s budgetary constraints (which was

his stated reason for failing to order the transcripts from Billie’s recently concluded trial)

and learned about his questionable financial agreement with Titlow. The court then

appointed William Cataldo as Titlow’s trial counsel.

Titlow’s case proceeded to trial in March 2002. The State’s theory of the case

was that Titlow helped Billie kill Donald in order to obtain money for a sex-change

operation, since Titlow, although born a man, had been living as a woman for many

years. Titlow offered several theories in her defense: that she was merely present and

did not participate in the murder; that she had abandoned any intent to aid in the murder

and was guilty of a lesser crime only; and that Donald died from acute, self-induced

intoxication rather than anything that she had done. 

At trial, Titlow took the stand in her own defense. She admitted to putting her

hand over Donald’s mouth after Billie poured vodka down his throat. Titlow further

confirmed that she poured some vodka as well, but in a much smaller quantity. She also
No. 10-2488 Titlow v. Burt Page 6

testified that she ultimately stopped Billie from giving Donald more alcohol and then left

the room. When she returned, she saw Billie holding a pillow over Donald’s face.

Titlow conceded that she accepted Billie’s money as a bribe to keep silent.

The jury convicted Titlow of second-degree murder, and the court sentenced her

to 20-to-40 years in prison. At her sentencing hearing, Titlow stated that she “would

have testified against Billie during her trial, had I not been persuaded to withdraw my

plea agreement and the chance to testify, because an attorney promised me he would

represent me. . . . I don’t know a lot about the law, because I’ve never been in serious

trouble before. So I trusted what he was saying.” Billie, in contrast, was acquitted after

her jury trial, but no further details about her trial have been included in the present

record.

The Michigan Court of Appeals affirmed Titlow’s sentence on direct appeal and

rejected all of her constitutional challenges. People v. Titlow, No. 241285, 2003 WL

22928815, at *1 (Mich. Ct. App. Dec. 11, 2003) (per curiam) (unpublished opinion).

Leave to appeal was denied by the Michigan Supreme Court. People v. Titlow,

680 N.W.2d 900 (Mich. May 28, 2004) (unpublished table opinion). Titlow then filed

a motion for relief from judgment in the state trial court, which was denied. The

Michigan Court of Appeals subsequently denied leave to appeal “because defendant has

failed to meet the burden of establishing entitlement to relief under [Michigan Court

Rule] 6.508(D),” People v. Titlow, No. 273274, slip op. at 1 (Mich. Ct. App. Apr. 27,

2007) (unpublished opinion), and the Michigan Supreme Court did the same, People v.

Titlow, 738 N.W.2d 715 (Mich. Sept. 24, 2007) (unpublished table opinion).

Titlow filed her petition for a writ of habeas corpus under 28 U.S.C. § 2254 in

August 2007. The district court issued an opinion denying the petition in October 2010,

but granted a certificate of appealability on all of Titlow’s claims. This timely appeal

followed.
No. 10-2488 Titlow v. Burt Page 7

II. ANALYSIS

A. Standard of review

A district court’s legal conclusions in a habeas case are reviewed de novo and its

factual findings are reviewed under the clear-error standard. Harris v. Haeberlin, 526

F.3d 903, 909 (6th Cir. 2008). The state-court decision under review is entitled to

deference pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), which is codified at 28 U.S.C. § 2254(d). That subsection provides as

follows:

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 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). 

A state-court decision is considered “contrary to” clearly established federal law

under § 2254(d)(1) if the two are “diametrically different, opposite in character or

nature, or mutually opposed.” Williams v. Taylor, 529 U.S. 362, 405 (2000) (internal

quotation marks omitted). Alternatively, to be deemed an “unreasonable application”

of clearly established federal law under that subsection, a state-court decision on the

merits must be “objectively unreasonable,” id. at 409, not simply incorrect, id. at 412.

In order to demonstrate that the state court’s decision was based on an

unreasonable determination of the facts under § 2254(d)(2), a petitioner must both

establish the “unreasonable determination” and show “that the resulting state court

decision was ‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242,
No. 10-2488 Titlow v. Burt Page 8

250 (6th Cir. 2011). We may take into account only “the record that was before the state

court that adjudicated the claim on the merits” when evaluating an AEDPA claim.

Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011). The state court’s findings of fact are

presumed to be correct unless they are rebutted by clear and convincing evidence.

Benge v. Johnson, 474 F.3d 236, 241 (6th Cir. 2007). As a result, “even if reasonable

minds reviewing the record might disagree about the finding in question, on habeas

review that does not suffice to supersede the trial court’s determination” unless that

determination is unreasonable. Wood v. Allen, 130 S. Ct. 841, 849 (2010) (alterations

and internal quotation marks omitted). “The standard is demanding but not insatiable,”

and the Supreme Court has noted that “deference does not by definition preclude relief.”

Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (brackets and internal quotation marks

omitted).

In short, 

“[a]s a condition for obtaining habeas corpus from a federal court, a state

prisoner must show 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, 131 S. Ct. 770, 786-87 (2011). Not every constitutional error in

a state-court proceeding therefore merits the issuance of a writ of habeas corpus.

Williams, 529 U.S. at 375. But those that “undermine confidence in the fundamental

fairness of the state adjudication certainly justify the issuance of the federal writ.” Id.

B. Ineffective assistance of interim counsel Frederick Toca

1. Applicable law

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants

the right to the assistance of counsel during their criminal proceedings. Strickland v.

Washington, 466 U.S. 668, 684-85 (1984). This right extends to the plea-bargaining

process, during which defendants are “entitled to the effective assistance of competent

counsel.” Lafler v. Cooper, 132 S. Ct. 1376, 1384 (2012) (internal quotation marks
No. 10-2488 Titlow v. Burt Page 9

omitted). “[T]he right to adequate assistance of counsel cannot be defined or enforced

without taking account of the central role plea bargaining plays in securing convictions

and determining sentences.” Id. at 1388.

In Hill v. Lockhart, 474 U.S. 52 (1985), the Supreme Court held that the test

established in Strickland, which addresses ineffective assistance of counsel at the trial

stage, applies equally to the plea-bargaining process. Hill, 474 U.S. at 58-59

(concluding that the defendant had not demonstrated that his counsel was ineffective in

erroneously advising him about the parole-related conditions set forth in the proposed

plea agreement because the defendant failed to allege that he would have rejected the

plea but for counsel’s advice); see also Lafler, 132 S. Ct. at 1384 (reaffirming that the

Strickland analysis applies to ineffective-assistance-of-counsel claims arising out of the

plea-bargaining process).

There are two components to the Strickland test for violations of a defendant’s

right to the effective assistance of counsel:

First, the defendant must show that counsel’s performance was deficient.

This requires showing that counsel made errors so serious that counsel

was not functioning as the “counsel” guaranteed the defendant by the

Sixth Amendment. Second, the defendant must show that the deficient

performance prejudiced the defense.

Strickland, 466 U.S. at 687. 

When evaluating counsel’s performance under the first step of Strickland, we

apply a strong presumption that counsel “rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.” Id. at 690;

see also Pough v. United States, 442 F.3d 959, 966 (6th Cir. 2006) (cautioning that

courts should not “indulge in hindsight, but must evaluate the reasonableness of

counsel’s performance within the context of the circumstances at the time of the alleged

errors” (internal quotation marks omitted)). “Even under de novo review, the standard

for judging counsel’s representation is a most deferential one.” Harrington, 131 S. Ct.

at 788. A defendant challenging her attorney’s conduct during plea bargaining therefore
No. 10-2488 Titlow v. Burt Page 10

bears “a heavy burden,” Whiting v. Burt, 395 F.3d 602, 617 (6th Cir. 2005), and “must

show that counsel did not attempt to learn the facts of the case and failed to make a

good-faith estimate of a likely sentence.” Short v. United States, 471 F.3d 686, 692 (6th

Cir. 2006) (internal quotation marks omitted).

Although “[t]he decision to plead guilty—first, last, and always—rests with the

defendant, not his lawyer,” this court has nonetheless maintained that “the attorney has

a clear obligation to fully inform her client of the available options.” Smith v. United

States, 348 F.3d 545, 552 (6th Cir. 2003). “A failure to provide professional guidance

to a defendant regarding his sentence exposure prior to a plea may constitute deficient

assistance.” Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2003) (citing the habeas

case of Magana v. Hofbauer, 263 F.3d 542, 550 (6th Cir. 2001)). Defense counsel thus

carries the “paramount” duty to “ensure that the client’s decision [to waive his

constitutional right to trial] is as informed as possible.” Miller v. Straub, 299 F.3d 570,

580 (6th Cir. 2002). “A criminal defendant has a right to expect at least that his attorney

will review the charges with him by explaining the elements necessary for the

government to secure a conviction, discuss the evidence as it bears on those elements,

and explain the sentencing exposure the defendant will face as a consequence of

exercising each of the options available.” Smith, 348 F.3d at 553.

Supporting this duty is the concomitant obligation of conducting “reasonable

investigations or [reaching] a reasonable decision that makes particular investigations

unnecessary.” Strickland, 466 U.S. at 691. “Counsel cannot responsibly advise a client

about the merits of different courses of action, [and] the client cannot make informed

decisions, . . . unless counsel has first conducted a thorough investigation . . . .”

Dickerson v. Bagley, 453 F.3d 690, 694 (6th Cir. 2006) (noting that such an investigation

“should begin as quickly as possible” in order to aid in plea negotiations (internal

quotation marks omitted)). The Sixth Amendment does not require that counsel provide

an absolutely correct assessment of the comparative risks of a guilty plea versus a trial,

but the Supreme Court has “recognize[d] that counsel must at least be aware of such

risks, especially where the lack of awareness directly impacts the reasoning behind
No. 10-2488 Titlow v. Burt Page 11

whatever advice is provided.” Miller, 299 F.3d at 584 (Gilman, J., concurring)

(emphasis added) (discussing McMann v. Richardson, 397 U.S. 759, 770 (1970)).

“[S]trategic choices made after thorough investigation of law and facts relevant

to plausible options are virtually unchallengeable,” but “strategic choices made after less

than complete investigation are reasonable precisely to the extent that reasonable

professional judgments support the limitations on investigation.” Strickland, 466 U.S.

at 690-91. “It is not reasonable to refuse to investigate when the investigator does not

know the relevant facts the investigation will uncover.” Dickerson, 453 F.3d at 696. If

an attorney’s “failure to investigate does not reflect sound professional judgment,”

deference to the attorney’s purported strategic choices is “not appropriate.” Dando v.

Yukins, 461 F.3d 791, 799 (6th Cir. 2006) (refusing to defer to the attorney’s decision

not to invest resources in a valid and available defense because the decision represented

a misunderstanding of the applicable law rather than sound professional judgment).

To meet the prejudice prong of the Strickland test in the context of a rejected plea

offer,

a defendant must show that but for the ineffective advice of counsel there

is a reasonable probability that the plea offer would have been presented

to the court (i.e., that the defendant would have accepted the plea and the

prosecution would not have withdrawn it in light of intervening

circumstances), that the court would have accepted its terms, and that the

conviction or sentence, or both, under the offer’s terms would have been

less severe than under the judgment and sentence that in fact were

imposed.

Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012). “A reasonable probability,” as the

Supreme Court has previously defined the term, “is a probability sufficient to undermine

confidence in the outcome.” Strickland, 466 U.S. at 694. This burden is relatively low,

being less than a preponderance of the evidence. See Williams v. Taylor, 529 U.S. 362,

405-06 (2000) (noting that a state-court decision applying a preponderance-of-theevidence standard to a question of attorney competence would be contrary to

Strickland’s holding “that the prisoner need only demonstrate a ‘reasonable probability’”
No. 10-2488 Titlow v. Burt Page 12

of a different outcome); Cornwell v. Bradshaw, 559 F.3d 398, 405 (6th Cir. 2009)

(explaining that a reasonable probability is “less than a preponderance of the evidence”).

The Supreme Court has recently indicated that the simple fact of a higher

sentence after trial is sufficient to demonstrate prejudice. See Lafler, 132 S. Ct. at 1387

(“[P]rejudice can be shown if loss of the plea opportunity led to a trial resulting in a

conviction on more serious charges or the imposition of a more severe sentence.”). And

this court has recognized that a substantial disparity between the plea offer and the posttrial sentence provides evidence that the defendant would have accepted the plea. See,

e.g., Smith, 348 F.3d at 552 (recognizing the Sixth Circuit’s adoption of this evidentiary

principle in a case involving a 60-month plea offer versus a 156-month sentence);

Magana v. Hofbauer, 263 F.3d 542, 551-52 (6th Cir. 2001) (involving a 10-year plea

offer versus a sentence of two consecutive 10-to-20-year terms).

A defendant’s conduct and statements during plea negotiations may also factor

into our prejudice analysis. See, e.g., Magana, 263 F.3d at 552 (concluding that a

comment made by the defendant during plea negotiations was enough to show a

reasonable probability that he would have accepted the plea). But this court has not

considered declarations of innocence clear evidence of a defendant’s knowing rejection

of a plea offer because defendants may have legitimate reasons for continuing to

maintain their innocence during and even after plea negotiations. See Smith, 348 F.3d

at 551-52 (listing several reasons why a defendant might want to continue asserting his

innocence and yet be amenable to a plea offer). And, unlike some circuits, this court

does not require “that a defendant must support his own assertion that he would have

accepted the offer with additional objective evidence.” Id. at 551 (internal quotation

marks omitted).

We may therefore consider affidavits submitted by the defendant during his statecourt appeals as well as other statements made by the defendant throughout the

proceedings. Id. (overturning the lower court’s conclusion that the defendant had failed

to support his ineffective-assistance-of-counsel claim and directing the court to consider

the defendant’s “own self-serving testimony”). Affidavits furnished by counsel,
No. 10-2488 Titlow v. Burt Page 13

however, receive more scrutiny and should explain not only that the defendant “was

aware of a plea offer,” but also that the attorney “actually discussed the terms of the

agreement with” the defendant, informed the defendant “of the dramatically higher

sentence potential” that he or she faced at trial, and explained the likelihood of not

prevailing at trial. Id. at 553.

2. Analysis

On direct appeal, the Michigan Court of Appeals considered evidence not

presented to the trial court concerning Titlow’s conversations with Sheriff’s Deputy Eric

Ott, who was assigned to the jail where Titlow was being held, and concluded as

follows:

The record discloses that the second attorney’s advice was set in motion

by defendant’s statement to a sheriff’s deputy that [s]he did not commit

the offense. Defendant offers the affidavit of [her] first attorney, who

negotiated a plea agreement that he thought was in defendant’s best

interests. When a defendant proclaims [her] innocence, however, it is not

objectively unreasonable to recommend that the defendant refrain from

pleading guilty—no matter how “good” the deal may appear. We

therefore reject defendant’s argument that [her] second attorney gave

[her] “grossly erroneous advice.” On the proofs and arguments offered

by defendant, defendant has failed to demonstrate that [her] second

attorney’s advice to withdraw [her] plea fell below an objective standard

of reasonableness.

People v. Titlow, No. 241285, 2003 WL 22928815, at *2 (Mich. Ct. App. Dec. 11, 2003)

(per curiam) (unpublished opinion) (footnotes omitted).

But the Court of Appeals’ conclusion is undermined by the statements that Toca,

Titlow’s second attorney, made on the record at the hearing to withdraw Titlow’s plea.

Toca did not refer to Titlow’s claims of innocence at any point throughout the hearing.

Instead, Toca explained that the decision to withdraw Titlow’s plea was based on the

fact that the State’s plea offer was substantially higher than the Michigan guidelines for

second-degree murder. The reason that Toca offered thus explicitly conflicts with the

rationale on which the Michigan Court of Appeals relied. This sufficiently rebuts the

Michigan Court of Appeals’ finding that the plea withdrawal was based on Titlow’s
No. 10-2488 Titlow v. Burt Page 14

assertion of innocence. See Benge v. Johnson, 474 F.3d 236, 241 (6th Cir. 2007) (stating

the general rule that a state court’s findings of fact are presumed correct unless rebutted

by clear and convincing evidence).

Moreover, even where counsel properly advises a client that she has the right to

go to trial if she maintains her innocence, this advice must be cabined by a larger

discussion in which counsel “fully inform[s the] client of the available options,” Smith,

348 F.3d at 552, and “ensure[s] that the client’s decision is as informed as possible,”

Miller, 299 F.3d at 580. The record in this case contains no evidence that Toca

“explain[ed] the elements necessary for the government to secure a conviction,

discuss[ed] the evidence as it bears on those elements, [or] explain[ed] the sentencing

exposure the defendant [would] face as a consequence of exercising each of the options

available.” See Smith, 348 F.3d at 553. We therefore conclude that Toca failed to fulfill

his “clear obligation” to provide sufficient advice to Titlow during the plea-negotiation

stage. See id. (noting that affidavits from counsel furnished for post-conviction review

should detail counsel’s conversations with the defendant in order to adequately refute

an ineffective-assistance-of-counsel claim).

The Michigan Court of Appeals acknowledged the affidavit from Lustig,

Titlow’s initial counsel, which advanced Lustig’s conclusion that the plea agreement was

in Titlow’s best interests. But the court concluded that Lustig’s belief alone was

insufficient to demonstrate that Toca performed ineffectively. In so concluding,

however, the Court of Appeals failed to address the final paragraph of Lustig’s affidavit,

in which he avers “[t]hat Mr. Toca did not pick up the discovery materials from my

office, nor discuss the facts of this case with me until January 10, 2002 as evidenced by

the attached Acknowledgment of Receipt signed by Mr. Toca, although said file was

made available to him on or about November 29, 2001, the time of his substitution.”

Toca thus had no way to adequately advise Titlow on her sentencing exposure

at trial or on the reasonableness of the plea offer without first examining the evidence

that the State had against her. But Toca did not have this material in his possession

when he rendered his advice to Titlow and did not receive it until shortly before he
No. 10-2488 Titlow v. Burt Page 15

sought to withdraw as counsel. The Supreme Court has long held that counsel has an

obligation to conduct a “reasonable investigation,” see Strickland v. Washington, 466

U.S. 668, 691 (1984), such that counsel would become aware of the risks of withdrawing

the plea, “especially where the lack of awareness directly impacts the reasoning behind

whatever advice is provided,” Miller, 299 F.3d at 584 (citing McMann v. Richardson,

397 U.S. 759, 770 (1970)). 

In the present case, the State’s evidence against Titlow clearly would have had

(or clearly should have had) a major impact on Toca’s advice during plea negotiations.

The failure to obtain Titlow’s file (a rather easy task) before offering any advice was

therefore totally inconsistent with a reasonable investigation. See Dickerson v. Bagley,

453 F.3d 690, 696 (6th Cir. 2006) (“It is not reasonable to refuse to investigate when the

investigator does not know the relevant facts the investigation will uncover.”).

Nor can we conclude that this fundamental omission reflected sound professional

judgment or a strategic choice. Cf. McMann, 397 U.S. at 771 (requiring that counsel

offer advice that is “within the range of competence demanded of attorneys in criminal

cases”); Dando v. Yukins, 461 F.3d 791, 798-99 (6th Cir. 2006) (giving examples of

defense counsel’s actions that would not constitute sound professional judgment). For

that reason, we need not afford deference to Toca’s actions. See Dando, 461 F.3d at 799

(“Although courts are typically required to show heightened deference to an attorney’s

strategic decisions supported by professional judgment, where a failure to investigate

does not reflect sound professional judgment, such deference is not appropriate.”); see

also Strickland, 466 U.S. at 690-91 (holding that, if counsel does not conduct a complete

investigation, any allegedly strategic choices made thereafter may be considered

reasonable only to the extent that the reasons for limiting the investigation can be

considered reasonable).

In short, Toca “did not attempt to learn the facts of the case.” See Short v. United

States, 471 F.3d 686, 692 (6th Cir. 2006) (defining deficient performance as including

situations where “counsel did not attempt to learn the facts of the case,” but ultimately

denying the defendant’s ineffective-assistance-of-counsel claim on the facts presented
No. 10-2488 Titlow v. Burt Page 16

(internal quotation marks omitted)). Here, Toca’s performance during the pleabargaining stage was clearly deficient under the first element of the Strickland analysis.

Titlow must next demonstrate, under Strickland’s second element, “a reasonable

probability that the plea offer would have been presented to the court (i.e., that the

defendant would have accepted the plea and the prosecution would not have withdrawn

it in light of intervening circumstances), that the court would have accepted its terms,

and that the conviction or sentence, or both, under the offer’s terms would have been less

severe” than the punishment that she ultimately faced. See Lafler v. Cooper, 132 S. Ct.

1376, 1385 (2012). Here, the facts speak for themselves: the plea offer was presented

to and accepted by the state trial court at Titlow’s initial plea hearing in October 2001.

And no one disputes that the sentence Titlow ultimately received (20-to-40 years’

imprisonment) was nearly three times the punishment that she was offered under the plea

agreement (7-to-15 years’ imprisonment). See id. at 1386 (noting that a sentence

following trial that was three-and-a-half times more severe than the one offered in the

plea agreement was evidence of prejudice).

Furthermore, Titlow’s position that would she have accepted the plea offer but

for Toca’s intervening advice is bolstered by the fact that she had actually accepted the

plea on the record at the October 2001 hearing. During her sentencing hearing following

trial in March 2002, she reiterated this fact. We may consider this testimony as evidence

of Titlow’s intent. See Smith, 348 F.3d at 551 (determining that the district court could

consider the defendant’s testimony despite the court’s description of this testimony as

“self-serving”).

The State’s evidence against Titlow was strong. Even Titlow’s version of the

facts was not inconsistent with a second-degree murder conviction, and her recorded

conversation with her paramour Chahine was highly incriminating. Toca’s timely

discovery of the State’s evidence against Titlow likely would have (or at least should

have) led him to change his recommendation as to withdrawing the plea. See Hill v.

Lockhart, 474 U.S. 52, 59 (1985) (noting that the prejudice inquiry under the second
No. 10-2488 Titlow v. Burt Page 17

prong of Strickland depends “on the likelihood that discovery of the evidence would

have led counsel to change his recommendation as to the plea”).

We therefore conclude that Titlow’s Sixth Amendment rights were violated when

Toca provided ineffective assistance of counsel at the plea-bargaining stage. The

Michigan Court of Appeals’ decision to the contrary unreasonably determined the facts

in light of the evidence presented. See 28 U.S.C. § 2254(d)(2). Because we reach this

conclusion, we need not address the remainder of Titlow’s claims for habeas relief.

3. Appropriate remedy

The Supreme Court recently addressed the appropriate remedy for a similar

constitutional violation in Lafler, noting that “Sixth Amendment remedies should be

tailored to the injury suffered from the constitutional violation and should not

unnecessarily infringe on competing interests.” 132 S. Ct. at 1388 (internal quotation

marks omitted). In the typical case where the sole injury suffered by the defendant was

a higher sentence, “the court may exercise discretion in determining whether the

defendant should receive the term of imprisonment the government offered in the plea,

the sentence [s]he received at trial, or something in between.” Id. at 1389.

But Titlow’s situation is not such a simple case for two reasons. The first is that,

by foregoing the plea agreement to a manslaughter charge, Titlow was convicted on the

higher charge of second-degree murder. And second, the plea agreement’s favorable

sentencing terms were presumably based in large part on Titlow’s willingness to testify

against Billie. Following the revocation of her plea agreement, however, Titlow did not

in fact so testify. Billie was acquitted and thus cannot be retried (she is also now

deceased). The State, therefore, has lost the major benefit that it sought from the initial

plea agreement.

In such a case, the Supreme Court has recognized that “resentencing based on the

conviction at trial [and under the terms of the former plea agreement] may not suffice”

because “[t]he time continuum makes it difficult to restore the defendant and the

prosecution to the precise positions they occupied prior to the rejection of the plea
No. 10-2488 Titlow v. Burt Page 18

offer.” Id. at 1389. Instead, “the proper exercise of [the state court’s] discretion to

remedy the constitutional injury may be to require the prosecution to reoffer the plea

proposal.” Id. Provided that Titlow on remand accepts the proffered plea agreement,

the state trial court would then have the discretion “to vacate the conviction from trial

and accept the plea or leave the conviction undisturbed.” Id. In any event, the state

court should continue to recognize the former plea offer as a “baseline [that] can be

consulted” in fashioning the appropriate remedy. Id.

We remain concerned that the remedy articulated in Lafler could become illusory

if the state court chooses to merely reinstate Titlow’s current sentence. But Lafler

cautions that state courts must at least “consult[]” the initial plea agreement in crafting

a new sentence for the defendant, which indicates—sufficiently for now—that the state

court’s discretion is not entirely unfettered. The proper scope of this discretion need not

be considered unless the state court imposes a sentence greater than the initial plea

agreement. What remedy Titlow might have in federal court if such occurs is an issue

to be resolved another day.

Because we conclude that Titlow’s Sixth Amendment right to counsel during the

plea-bargain process was violated and because the initial plea offer was to a lesserincluded offense instead of the offense of conviction, we will reverse the judgment of

the district court and conditionally grant the petition for a writ of habeas corpus, giving

the State 90 days to reoffer Titlow the original plea agreement or, failing that, to release

her. If the State in fact reoffers the plea agreement and Titlow accepts, the state court

may then exercise its discretion to fashion a sentence for Titlow that both remedies the

violation of her constitutional right to the effective assistance of counsel and takes into

account any concerns that the State might have regarding the loss of Titlow’s testimony

against her aunt.
No. 10-2488 Titlow v. Burt Page 19

III. CONCLUSION

For all of the reasons set forth above, we REVERSE the judgment of the district

court and conditionally GRANT the petition for a writ of habeas corpus, giving the State

90 days to reoffer Titlow the original plea agreement or, failing that, to release her.
No. 10-2488 Titlow v. Burt Page 20

1

On habeas review, we are not free to choose one side of the facts, but the majority does just that

in its description of some of the evidence presented at trial. For example, the record indicates that

Detective Ott referred Titlow to his own attorney, Saunders Dorsey, and did not recommend Toca.

___________

DISSENT

___________

ALICE M. BATCHELDER, Chief Judge, dissenting. I must respectfully dissent

from the majority’s decision because, in my view, the Michigan Court of Appeals’s

denial of Titlow’s ineffective assistance claim was reasonable. Our review of the

Michigan Court of Appeals’s application of Strickland is “doubly deferential,” as we

must “take a highly deferential look at counsel’s performance through the deferential

lens of § 2254(d).” Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011) (internal citation

and quotation marks omitted). The Michigan Court of Appeals properly denied Titlow’s

claim because the record does not establish that advice from her counsel, Frederick Toca,

was the reason Titlow chose to withdraw her plea. But even if Toca had encouraged

Titlow to withdraw her plea, such advice did not fall below an objective standard of

reasonableness.

The primary error in the majority’s opinion lies in its basic premise—that Titlow

chose to withdraw her plea because of Toca’s advice. Even if Toca’s performance was

deficient, which in my view it was not, the record does not establish that Toca’s advice

was the decisive factor in Titlow’s decision to withdraw her plea. “A defendant

challenging his attorney’s conduct during plea bargaining must . . . . show that his

lawyer’s deficiency was a decisive factor in his decision to plead.” Short v. United

States, 471 F.3d 686, 692 (6th Cir. 2006) (internal citation and quotation marks omitted).

The record shows that Titlow wanted to withdraw her plea before she ever enlisted Toca

as counsel. In fact, her desire to withdraw her plea, in response to Detective Ott’s

statement that she should not plead guilty if she was not guilty, was the reason she

sought new counsel—Toca, as it turned out. More importantly, Titlow has argued

throughout her appeals and habeas proceedings that it was Detective Ott’s statement that

motivated her to change her plea.1

 Titlow has not presented any evidence indicating that
No. 10-2488 Titlow v. Burt Page 21

Likewise, the majority states that the “evidence suggests” Billie smothered Donald when Titlow left the

room in spite of the fact that the record contains testimony that Titlow was in the room at the time.

Toca advised her to withdraw her plea or that he was otherwise a decisive factor in her

decision to go to trial. Instead, the record indicates that she had wanted to change her

plea and enlisted Toca as new counsel to do just that.

Even if Toca was the reason Titlow chose to withdraw her plea, the record does

not establish that his performance was deficient. The majority conducts a de novo

review of Toca’s performance after determining that the Michigan Court of Appeals

based its determination on an unreasonable assessment of the facts. In doing so, the

majority misreads the Michigan Court of Appeals’s opinion, which states that the record

indicates that Toca’s advice “was set in motion” by Titlow’s assertion of innocence. The

majority concludes that this was an unreasonable assessment of the facts because Toca

never mentioned Titlow’s innocence at the change of plea hearing and instead argued

for withdrawal based on the excessiveness of the sentence. However, the Michigan

Court of Appeals recognized that the basis for the plea withdrawal was the excessiveness

of the sentence, see Michigan v. Titlow, No. 241285, 2003 WL 22928815, at *1 (Mich.

Ct. App. Dec. 11, 2003), and Toca’s statements at the change of plea hearing do not

contradict the court’s conclusion that his advice stemmed from her assertion of

innocence. Instead, the record, and Titlow’s own arguments throughout her appeals,

support the Michigan court’s conclusion because they demonstrate that she chose to

obtain new counsel only after she had passed a polygraph test and Detective Ott advised

her that she should not plead guilty if she was not guilty. Any advice that Titlow may

have received from Toca was the result of Titlow’s wanting new counsel and no longer

wanting to plead guilty. The fact that at the hearing Toca asserted a separate reason for

withdrawing the plea does not undermine this conclusion. Accordingly, the Michigan

Court of Appeals did not base its determination on an unreasonable assessment of the

facts.

Finally, even under de novo review, Titlow has not established that Toca’s

performance was deficient. First, Toca’s decision to move for withdrawal of the plea
No. 10-2488 Titlow v. Burt Page 22

based on either Titlow’s claims of innocence or the excessiveness of the sentence was

reasonable. It is undoubtedly reasonable for an attorney to recommend that his client

reject a plea if the client maintains her innocence, as the record suggests Titlow did. It

is just as reasonable for an attorney to advise a client that pleading to an aboveguidelines sentence was not in her best interest. The majority concludes that Toca was

deficient because he did not investigate Titlow’s case file before moving to withdraw her

plea. But, there is nothing in the record establishing that the case file would have

undermined any advice that Toca may have given Titlow. The state’s evidence did not

assure a first-degree murder conviction; indeed, the jury convicted Titlow of a lesserincluded offense. Even if Toca had reviewed the case file, advising Titlow to withdraw

her guilty plea either because she maintained her innocence or because she pleaded to

an above-guideline sentence, in my view, does not fall below an objective standard of

reasonableness.

Moreover, the time line of events leading to the plea withdrawal sheds some light

on Toca’s decision not to review the case file. Following her discussion with Detective

Ott, Titlow eventually signed a fee agreement with Toca on November 26th. Billie

Rogers’s trial, in which Titlow agreed to testify as part of her plea, was scheduled to

begin on November 29th. If Titlow wanted to withdraw her plea, as the record suggests,

then she needed to make a decision before she had to testify in Rogers’s trial. So on

November 29th, Toca, having represented Titlow for only three days (formally

substituting as counsel that day), moved to withdraw Titlow’s plea. With such a short

time frame, Toca’s decision to move to withdraw the plea without reviewing the case file

seems reasonable.

Second, Titlow has not overcome the strong presumption that Toca exercised

reasonable professional judgment during his representation. Strickland v. Washington,

466 U.S. 668, 689 (1984). Although “failure to provide professional guidance to a

defendant regarding his sentence exposure prior to a plea may constitute deficient

assistance,” Moss v. United States, 323 F.3d 445, 474 (6th Cir. 2003), there is nothing

in the record showing that Toca failed to so advise Titlow. She has not presented any
No. 10-2488 Titlow v. Burt Page 23

evidence that she lacked any information when she made the decision to withdraw her

plea. Rather, Titlow affirmed at the change of plea hearing that she was aware that

withdrawing her plea to manslaughter subjected her to a potential life sentence for firstdegree murder. The burden is on the defendant to present evidence establishing that

counsel was ineffective, and the defendant’s chance of success does not rest on the

government’s or counsel’s ability to refute the claim of ineffectiveness, as the majority

suggests. See Strickland, 466 U.S. at 687; Short, 471 F.3d at 692 (“[D]efendants

alleging ineffective assistance of counsel bear a heavy burden of proof.” (internal

quotation marks omitted)). Titlow has simply not presented any evidence that Toca gave

her deficient advice. Instead, she argues that Toca’s motion to withdraw the plea was

a “reckless roll of the dice.” But “[a] convicted defendant making a claim of ineffective

assistance must identify the acts or omissions of counsel that are alleged not to have

been the result of reasonable professional judgment.” Strickland, 466 U.S. at 690.

Although Toca did not pick up the file before moving for the plea withdrawal, Titlow

has not explained how the file would have undermined the reasonableness of the plea

withdrawal and, therefore, has not overcome the strong presumption of reasonableness.

The majority cites Lafler v. Cooper, 132 S. Ct. 1376 (2012), as a case involving

a “similar constitutional violation” without recognizing the crucial distinction between

that case and this one—that the petitioner in Lafler presented actual evidence that he

received deficient advice. Specifically, both the petitioner and his former counsel

testified at a Michigan v. Ginther, 212 N.W.2d 922 (1973), hearing, and their testimonies

established that counsel had informed the petitioner of an incorrect legal rule that caused

the petitioner to reject a plea offer. Titlow has not presented any similar evidence, as she

did not have a Ginther hearing. Unlike Lafler, this case offers absolutely no evidence

from which we can discern that Titlow received deficient advice. As the majority

recognizes, “the record contains no details about Toca’s conversations with Titlow”

before the change of plea hearing. Without evidence that Toca gave incorrect advice or

evidence that he failed to give material advice, Titlow cannot establish that his

performance was deficient.
No. 10-2488 Titlow v. Burt Page 24

Although I would not reach the Lafler question because I do not believe that

Titlow has established that her counsel was deficient, I cannot agree with the majority’s

description of Lafler’s requirements of the trial court during its reconsideration of the

plea offer. Lafler does not, as the majority states, require the trial court to consult the

plea agreement; it simply says that the “baseline” of the original plea offer “can be

consulted in finding a remedy.” Lafler, 132 S. Ct. at 1389. Lafler also does not require

the trial court to resentence Titlow. Instead, Lafler states that once the prosecution

reoffers the plea proposal, “the judge can then exercise discretion in deciding whether

to vacate the conviction from trial and accept the plea or leave the conviction

undisturbed.” Id. Moreover, it is not the trial court’s responsibility, as the majority

states, to “fashion a sentence for Titlow that . . . remedies the violation of her

constitutional right,” as the remedy for the violation is the government’s reoffering of

the original plea agreement. See id. (“In these circumstances, the proper exercise of

discretion to remedy the constitutional injury may be to require the prosecution to reoffer

the plea proposal . . . .”). Lafler does not impose such requirements on the trial court,

and the majority’s statements to the contrary are incorrect.

The record does not establish that Toca was the reason Titlow withdrew her plea.

Nor does it establish that his performance fell below an objective standard of

reasonableness. Accordingly, the Michigan Court of Appeals’s denial of Titlow’s

ineffective assistance claim was reasonable and, therefore, I must respectfully dissent.