IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-30843

Summary Calendar

MICHAEL BRADFORD BASS,

Petitioner-Appellant

v.

J. TIM MORGAN, Warden Winn Correctional Center,

Respondent-Appellee

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 3:13-CV-3134

Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.

PER CURIAM:*

Michael Bradford Bass, Louisiana prisoner # 543016, pleaded guilty to 

attempted first degree murder of a police officer and was sentenced pursuant 

to a plea agreement to the statutory minimum of 20 years of imprisonment. 

He filed this 28 U.S.C. § 2254 application challenging his guilty plea, and we 

granted a certificate of appealability (COA) on the issues whether he received 

ineffective assistance of counsel based on (1) counsel’s advice to enter a plea 

 

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

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

June 23, 2016

Lyle W. Cayce

Clerk

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under State v. Crosby, 338 So. 2d 584 (La. 1976), and (2) counsel’s failure to 

advise Bass of the alternative courses of action available to him, such as the 

option to plead guilty under North Carolina v. Alford, 400 U.S. 25 (1970).

Under the AEDPA, a state court’s adjudication of an issue on the merits 

is entitled to deference. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A 

§ 2254 application shall not be granted unless the state court’s decision “was 

contrary to, or involved an unreasonable application of, clearly established 

Federal law, as determined by the Supreme Court of the United States” or 

“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.” 

§ 2254(d). The state court’s factual findings are presumed correct unless the 

applicant rebuts these findings with clear and convincing evidence. 

§ 2254(e)(1).

“This is a difficult to meet and highly deferential standard for evaluating 

state-court rulings, which demands that state-court decisions be given the 

benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal 

quotation marks and citation omitted). To satisfy the standards of § 2254(d), 

a state prisoner must show that the state court’s ruling on his claim “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 prevail on a claim of ineffective assistance of counsel, a prisoner must 

show (1) that his counsel’s performance was deficient in that it fell below an 

objective standard of reasonableness and (2) that the deficient performance 

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 689-94 (1984). 

A failure to make either showing defeats the claim. Id. at 697.

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An applicant makes the required showing of prejudice by showing “a 

reasonable probability that, but for counsel’s unprofessional errors, the result 

of the proceeding would have been different.” Id. at 694. “The likelihood of a 

different result must be substantial, not just conceivable.” Richter, 562 U.S. at 

112. A defendant who pleads guilty upon the advice of counsel may attack the 

voluntariness of his guilty plea by showing that his counsel’s advice constituted 

ineffective assistance. Hill v. Lockhart, 474 U.S. 52, 56-57 (1985). To 

demonstrate 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.” Id. at 59.

“Surmounting Strickland’s high bar is never an easy task.” Richter, 562 

U.S. at 105 (internal quotation marks and citation omitted). “Establishing that 

a state court’s application of Strickland was unreasonable under § 2254(d) is 

all the more difficult. The standards created by Strickland and § 2254(d) are 

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

so.” Id. (internal quotation marks and citations omitted). When § 2254(d) 

applies, the question is not whether counsel’s actions were reasonable. “The 

pivotal question is whether the state court’s application of the Strickland

standard was unreasonable.” Id. at 101.

Bass contends that the Louisiana courts have not addressed the merits 

of this claim. The Louisiana Second Circuit denied Bass’s writ application

appealing the denial of his state habeas application, concluding that he had 

“failed to meet his burden of proving that any of his requested relief should be 

granted” citing Louisiana Code of Criminal Procedure article 930.2 and State 

v. Berry, 430 So. 2d 1005 (La. 1983). The disposition of Bass’s state habeas 

application qualifies as an adjudication on the merits entitled to deference 

under § 2254(d). See Gallow v. Cooper, 505 F. App’x 285, 290-91 (5th Cir. 2012).

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Bass argues in his brief that counsel’s misleading advice to plead guilty 

under Crosby, reserving his rights to appeal the trial court’s denial of his 

motions to quash and to suppress, induced or tricked him into making an 

unintelligent and involuntary plea. He asserts that counsel and the trial court 

“bamboozle[ed] the petitioner into believing he could come back to the district 

court for trial if the appellate court disagreed with trial court’s rulings.”

The State argues that counsel’s advice to plead guilty reserving his right 

to appeal the denial of his motions to quash and to suppress under Crosby did 

not prejudice Bass because the state appellate court reviewed the trial court’s 

rulings on the motions and upheld the trial judge’s rulings. The State notes 

that Bass got the benefit of his plea agreement. Bass wanted the right to 

appeal the trial judge’s ruling on his motions, he got that, and he lost. See

State v. Bass, 47 So. 3d 541, 547-50 (La. Ct. App. 2010).

Alternatively, based on Bass’s own statements at his plea hearing, Bass 

would likely have accepted the plea agreement regardless of counsel’s alleged 

insufficient advice regarding the reservation of his right to appeal the trial 

court’s ruling on his motions. The record shows that Bass’s decision to plead 

guilty was not wholly dependent on his right to appeal the trial court’s rulings 

on the motions, but that Bass accepted the plea bargain in part “because he 

believed that the testimony of the State’s witnesses would be strong and that 

a jury would rule against him.” Bass explained that the testimony of the 

witnesses at his hearing on the motions “was part of the reason why I think 

I’m accepting the plea.” Bass felt that the plea was in his best interests because 

he was concerned that if the jury believed the testimony that was presented at 

the hearing and did not believe his version of the events, he would never see 

his children again.

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Bass has not shown prejudice because he has not shown “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.” Hill, 474 U.S. at 59. Thus, 

Bass has not shown that the state court’s decision was contrary to or an 

unreasonable application of Strickland or an unreasonable determination of 

facts in light of the evidence presented in the state court proceeding. See

§ 2254(d).

Bass also argues that his counsel was ineffective for failing to advise him 

of the option to plead guilty under Alford. He asserts that he never intended 

or attempted to murder Officer Lambert and that he is innocent of the crime 

to which he pleaded guilty. He states that the record shows that he was 

attempting to flee the scene and avoid apprehension but does not contain 

significant evidence that he had the specific intent to kill Officer Lambert. He 

asserts that if he had been given the option of pleading under Alford, he would 

have done so, and under the standard of review required by Alford, his 

conviction could not stand.

The “best interest” or Alford plea is derived from North Carolina v. 

Alford, 400 U.S. 25, whereby the defendant pleads guilty while maintaining 

his innocence. In such a case, the Supreme Court held that a defendant may 

plead guilty, without forgoing his protestations of innocence, if “the plea 

represents a voluntary and intelligent choice among the alternative courses of 

action open to the defendant[,] . . . especially where the defendant was 

represented by competent counsel whose advice was that the plea would be to 

the defendant’s advantage.” Id. at 31. In a case involving an Alford plea, the 

record must contain “strong evidence of actual guilt.” Id. at 37. Under Alford, 

when a defendant pleads guilty while maintaining his innocence, it is 

constitutional error to accept the plea without ascertaining that there is a 

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factual basis to support it. Unless the defendant makes statements 

inconsistent with guilt, state courts are not constitutionally required to 

establish a factual basis. Orman v. Cain, 228 F.3d 616, 621 (5th Cir. 2000).

The State argues that the option to plead guilty under Alford was not 

part of the plea agreement. The State asserts that Bass’s admission of guilt 

was an important consideration for the State and the victim to agree to the 

minimum sentence that Bass received under the plea agreement. The State 

notes that Bass never maintained his innocence, that he admitted that the 

testimony of witnesses at the hearing on his motions was a significant factor 

in his decision to plead guilty, and that he agreed that this evidence provided 

the factual basis for his plea. The State argues that the evidence showing that 

Bass refused to stop speeding down the street with Officer Lambert screaming 

for him to stop shows his intent to commit the crime he admitted to in his plea.

The evidence presented at the motions hearing included testimony by 

Officer Lambert that Bass kept speeding while Lambert was hanging on half 

in and half out of the car, with Lambert yelling for Bass to stop. Bass kept 

veering the car back and forth, trying to throw Officer Lambert out of the car. 

Bass steered towards a telephone pole, and it looked to Officer Lambert like 

Bass was going to try to hit him into the pole. Lambert was able to grab the 

steering wheel and spin the car so that it missed the pole. The car stopped 

briefly, then Bass accelerated, creating skid marks and smoke, and crashed 

the car into a building. The crash stopped the car, and Officer Lambert flew 

forward, hitting his head on the windshield. Bass continued to try to drive the 

car forward into the building. He then put the car in reverse, stepped on the 

gas, and backed out until the car hit something and stopped. One of Officer 

Lambert’s legs was pinned between the car and the building. He was able to 

reach his Taser, he Tased Bass, and Bass finally stopped. Officer Lambert 

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testified that he almost fell out of the car and was scared that he was going to 

get killed.

Bass did not make any statements suggesting that he was innocent or 

that were inconsistent with guilt. The trial judge explained the charge of 

attempted first degree murder, which included the specific intent to kill a 

police officer, and Bass stated that he understood the charge. The trial judge 

stated that the factual basis for the plea was what was heard at the hearing 

on the motion to suppress and motion to quash, to which statement Bass and 

Cooper agreed. The court found that there was a factual basis for the plea.

On direct appeal, Bass argued that the trial court should have been put 

on notice that there was a need for an Alford inquiry to determine whether 

there was a significant factual basis for the plea. He argued further that if the 

trial court had conducted an Alford inquiry, it would have revealed that the 

State’s case did not contain significant evidence of his guilt. Bass, 47 So. 3d at 

550. The state appellate court reviewed the plea colloquy and determined that 

Bass had not maintained his innocence and so Alford was not triggered. Id. at 

551. The court further stated that the facts established the requisites for 

attempted first degree murder. Id.

Despite the fact that Bass did not proclaim his innocence and plead 

under Alford, he essentially had what is required by Alford in that the trial 

court did make a finding of a factual basis. Further, Bass received review of 

that issue on direct appeal. Bass, 47 So. -3d at 550-51. If he had pleaded guilty 

under Alford, the result would have been the same.

Again, Bass has not shown prejudice because he has not shown “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.” Hill, 474 U.S. 

at 59. Bass has not shown that the state court’s decision was contrary to or 

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involved an unreasonable application of Strickland or an unreasonable 

determination of facts in light of the evidence presented in the state court 

proceeding. See § 2254(d).

AFFIRMED.

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