UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ NICHOLAS SOUDERS, Petitioner - Appellant,

v. SCOTT DAUFFENBACH, Warden; PHIL WEISER, AttorneyGeneral of the State of Colorado, * Respondents - Appellees. No. 18-1419 (D.C. No. 1:17-CV-02883-RM) (D. Colo.)

________________ _________________ ORDER DENYING CERTIFICATE OF APPEALABILITY **

________________ _________________ Before PHILLIPS , McKAY , and BALDOCK , Circuit Judges.

________________ _________________ Nicholas Souders seeks a certi ficate of appealability (COA) to appeal the district court’s denial of his petition for a writ of habeas co rpus under 28 U.S.C. § 2254. 1 After review, we deny Souders a COA and dismiss his appeal.

* Pursuant to Fed. R. A pp. P. 43(c)(2), Cynth ia Coffman is repla ced by Phil Weiser as a Respond ent in this case.

** This order and judgment is not binding precedent, except underthe doctrines of law of the case, res judicata , and collateral estoppel. It may be cited, however, for its persuasive value consistentwith Fed. R. App. P. 32.1 and 1 0th Cir. R. 32.1.

1 Because Souders is pro se, we c onstrue his filings liberally, but we stop short of acting as his advocate. Hall v. Bellmon , 935 F.2d 1106, 1110 (10th Cir. 1991). FILED United States Court of Appeals Tenth Circuit 

### June 11, 2019
Elisabeth A. Shumaker Clerk of Court2 BACKGROUND In 2003, the state of Colorado charged Souders with four count s: ( 1 ) sexual assault (application of physical force or physical violence), i n violation of Colo. Rev. Stat. § 18-3-402(1)(a ), (4)(a) (2006); ( 2 ) sexual assault (while physically aided or abetted by another, in violation of § 18-3-402(1)(a), (5)(a)(ii )); ( 3 ) conspiracy to commit sexual assault, in violati on of §§ 18-3-402(1)(a), (4) a nd 18-2-201; and ( 4 ) possession of marijuana with inten t to distribute, in violation of § 18-18-06(8)(b)(1). 2 People v. Souders , No. 05CA1581, slip op. at 1 (Colo. App. July 26, 2007). After a trial on the sexual-offe nse counts, the jury convicted Souders of the second count listed above, but it acquitted him on the other tw o counts. For his conviction, the court sentenced h im to a mandatory range of six teen years to life imprisonment under the Colorado S ex Offender Lifetime Supervisi on Act. On direct review, the Colorado Court of App eals (CCA) affirmed Souders’s conviction and

sentence. People v. Souders , No. 05CA1581 (Colo. App. July 26, 2007). The Colorado Supreme Court deni ed his writ of certiorari. About six years later, Souders sought post-conviction relief in the Colora do state courts, ass erting ineffective assistance of trial counsel. Among his many claims, he alleged that his trial counsel had not timely informed him of th e state’s plea offer or of the likely sentencing consequences of rejecting th e offer if later convicted.

2 Before trial, the court granted Souders’s motion to sever the marijuanapossession count. State court file at 5, 62–64, 87–88. Souders later pleaded guilty to that charge. Id. at 176–78.3 The Colorado state district c ourt held an evidentiary hearing on Souders’s post-conviction claim. The court heard testimony from Souders, his mother, his trial counsel, the prosecutor, and Soude rs’s expert in criminal defen se and sexual-assault sentencing. The prosecuting attorney testifiedthat she had offered to dism iss the sexualassault charges against Souders i f he pleaded guilty to a class 5 sex-offense felony— because she had “definite proof challenges with this case. . . .” Dec. 6, 2013 hearing transcript at 7–8. This would have avoide d an indeterminate sentence. She “remember[ed] [counsel] . . . tel ling [her] that he [had] exten ded the offer to his client, and that his clienthad rejected the offer.” Id. at 8. Souders testified (also at the post-conviction hearing) that he first heard about a plea offer soon before he testif ied at his sexual-assault tri al. He said that he learned this after mentioning to his tri al counsel that he wished the s tate had offered a plea deal. Souders further testified that his trial counsel then res ponded that the state had in fact made a plea offer, butthat it “wasn’t good enough.” 3 Nov. 22, 2013 transcript at 24–25. Souders testified that his trial counsel had given hi m no details of the plea offer. Id. at 24. Souders’s testimony did not reveal whether, after hearin g this news,

3 Months before Souders’s sexual-as sault charges, the same trial counsel had represented Souders on a petty-the ft charge, to which Souders p leaded guilty. For the sexual-assault case, Souders’s parents retained Mr. Nelson, dip ping into their retirement savings to furn ish a flat fee of $30,000.4 he asked his trial counsel for d etails about the plea offer, orwhether the offer might still be available. Id. In addition, Souders testified tha t his counsel had never expla ined to him the difference between determinate a nd indeterminate sentencing. Id. at 26. He did acknowledge that his counsel had t old him that if convicted, he “would not be able to see [his five-year-old] s on graduate high school.” Id. at 21. Souders equivocated about what he would have done had his couns el in fact communicated the offer and told h im of the indeterminate-senten cing consequences if convicted of his present charges . First, he testif ied that had he known those things he “definitely would have looke d at it differently.” Id. at 26. When asked “[h]ow so?” he responded, “I probably would ha ve took a plea – plea deal ha d I known there was one.” 4 Id. at 27. Moments later, Souders t estified that he would have “co nsidered” a plea bargain lowering his sentencing range. 5 Id.

4 Notably, this testim ony is vague about whe ther Souders was spe aking about the plea deal actually offered. F or instance, Souders never tes tified that he would have been willing to take a “psyc ho-sex” examination. His trial attorney remembered that the prosecutor had require d this as a condition of the ple a deal—the test results then affecting the recommended sentencing range. Dec. 6, 2013 h earing transcript at 29, 34.

5 Beginning by recognizing that “ hindsight is 20/20,” Souders’s postconviction counsel asked Souders whether he would have consider ed a plea offer if he had been told he faced a “mini mum sentence to potentially th e rest of [his] life in prison if convicted in this case. . . .” Id. Souders responded, “Ye s.” His counsel then asked, “It’s something you would have considered?” Souders agai n answered, “Yes.” Id.5 Souders’s mother testified tha t she attended the initial meetin g between her son and his trial c ounsel, and that her s on’s trial counsel did not explain the consequences of an indeterminate sentence at the meeting. She a lso said that Souders had never mentioned to her a pro posed plea offer or the prospec t of indeterminate sentencing, which she felt he w ould have done had he known abou t them. Souders’s trial counsel testified that he had told Souders abou t the state’s offer during a telephone call from his car immediately after meeting with the prosecutor. Dec. 6, 2013 hearing transcript a t 35. He said he told Souders that the determinatesentence offer “was really a good offer.” Id. at 25. Souders maintained his innocence. Id. at 26. Trial counsel testified t hat he believed Souders had re jected the plea offer because Souders felt that somethi ng must be going wrong with th e prosecutor’s case. Id. Though trial counsel “c[ouldn’t] remember if [he] discussed [t he plea offer] after that or not,” he stated that he had spoken with Souders “numero us times” about the strengths and weaknesses of his case and about the potential co nsequences if he went to trial and lost, including th e possibility of spending the re st of his life in prison. Id. at 21–23, 35. But trial counsel a greed that his case file conta ined no notations memorializing that he had comm unicated the plea offer to Souder s or discussed the consequences of an indeterm inate sentence with him. Id. at 30, 34–35, 39–40. He described himself as “[p]rett y rotten at keeping notes.” Id. at 35. Finally, Souders called an expert i n criminal-defense represent ation and sexoffense sentencing. The expert t estified that accepting the sta te’s offer would likely have resulted in a two-to-six-ye ar prison sentence, followed by two years of parole,6 during which time Souders would ha ve had to register as a sex o ffender. Id. at 22. In contrast, he explained that unde r an indeterminate sentence, a defendant is given a much longer minimum s entence and “can be he ld in the Departmentof Corrections for the rest of [his] life until the Department of Corrections and the parole department decides that [he’s] not a risk, and [he] can be released.” Id. at 17. And “up until recently [that] has meant that [ the defendant is] not going to be paroled.” Id. On top of that, “the parole is a lifeti me parole, meaning [that the de fendant] will be on parole for the rest of [h is] natural life.” Id. at 18–19. Souders’s expert also testified that failing to tell a client a bout the consequences of rejecting the st ate’s plea offer would fall bel ow the standard of care for adequate representation. Id. at 13–14. “You have to have your client come in and sit down with you so you can go over both the evidence and the law and the consequences face to face,” be cause “[t]his is not a decision y ou would have your client make over the telephone.” Id. at 24–25. As for trial counsel’s failure to memorialize the offer or any of his discussions with Souders, t he expert testified that such a failure “definitely f[e ll] below the standard of care.” Id. at 28. He explained that “documenting [plea offers] on your file is very important” because it allows you to “remember what [the offer] i s” and because “if someone else has to look at your file, they can figure out wha t the plea agreement is.” Id. at 16. At the end of the hearing, the sta te district court ruled that Souders had failed to establish ineffective assist ance of trial counsel. Specifica lly, it concluded that “even if the Court were to assume that defe nse counsel’s perfor mance was deficient,7 [Souders] would fail on the sec ond prong,” because he “failed t o prove by a preponderance of the e vidence that but for d efense counsel’s er rors, he would have accepted the plea.” State court file at 466–68. Then presumably switching to the deficient-performance prong, the d istrict court stated that “[d ]ue to the specificity of and lack of refutation of the d efense counsel’s testimony, and the direct refutation of the Defendant’s testimony, this Court finds the defense counsel ’s testimony more credible and in line with actual events.” 6 Id. at 467. Even so, for reasons not given, the district court did not rest its holding on the deficient-pe rformance prong. See id. The CCA affirmed this decision. People v. Souders , No. 14CA0208 (Colo. App. Aug. 31, 2017). The CCA not ed that “even if we assume, wit hout deciding, that trial counsel’s performance dur ing the plea negotiation process was deficient, we nonetheless conclude that defe ndant did not show that counsel’s substandard performance had prejudiced him.” Id. at 9. The CCA noted t hat “[t]o establish prejudice in this context, defenda nt must show that there was a reasonable probability that, but for counsel’s errors, he would have accepted the plea offer rather than proceed to trial. Id . at 9–10. The CCA acknowledged that “sentencing disparities ca n serve as corroborating evidence” that a defendant would have ac cepted a plea deal, id. at 11, but it ultimately ruled that Souders had failed to show prejudice. As

6 The Colorado Court of Appeals began its analysis by saying tha t “we agree with the defendant that some of the trial court’s findings were not supported by the record and that we therefore are not required to defer to them. ” Slip. Op. at 9. Whether this cryptic reference included the district court’s cr edibility finding is unimportant though, because, as s een above, both courts relied on Strickland ’s prejudice prong, bypassing the de ficient-performance prong.8 support, the CCA referenced Soude rs’s “indecisive and condition al” responses about whether he would have accepted th e plea agreement and also refe renced his testimony that “he did not raise the possibility of a plea deal with trial counsel because he ‘was trying to prove [his] innocence.’” Id. at 10. Souders petitioned for federal ha beas relief, reasserting his c laim for ineffective assistan ce of trial counsel based on counsel’s alle gedly failing to communicate a plea offer, and a llegedly not explaining the effe ct of an indeterminate sentence under the Colorado Sex Offender Lifetime Supervision A ct. In addition, Souders raised a claim for ine ffective assistance of post-convi ction counsel, based on counsel’s allegedly taking five y ears to complete the post-conv iction motion, and for failing to fully artic ulate the bases of Souders’s claim for in effective assistance of trial counsel. Souders v. Dauffenbach , No. 17-cv-02883-RM ( D.Colo., filed Dec. 1, 2017). The district court first dismisse d the claim for ineffective as sistance of postconviction counsel, under 28 U.S.C. §2254(i). Souders v. Dauffenbach , No. 17-cv02883-RM (D.Colo., filed May 11 , 2018). Four months later, it d ismissed Souders’s claim for ineffectiv e assistance of trial counsel, reasoning th at Souders had not shown the CCA’s decision “was so lacking in justification that there was an error well-understood and comprehended in existing law beyond any pos sibility for fairminded disagreement.” Souders v. Dauffenbach , No. 1:17-cv-02883-RM (D.Colo., filed Sept. 24, 2018). I n the same order, the distric t court concluded that it9 had “no basis on which to issu e a certificate of appealability pursuant to 28 U.S.C. §2253(c).” Id. at 18. Souders now seeks a COA to review this federal district court’s decision. He raises these same two issues. Fi rst, he contends that the feder al district court abused its discretion in dismissing his claim for ineffective assistan ce of post-conviction counsel. Second, he contends that the federal district court ab used its discretion by “considering the CCA’s findings a s being reasonable, when the [ CCA] could not provide a single shred of object ive corroborating evidence mand ated to support such finding.” Souders v. Dauffenbach , No. 1:17-cv-02883-RM, a t 5, 11 (D.Colo., filed Jan. 8, 2019). 7 STANDARD OF REVIEW We have authority to grant a C OA upon a “substantial showing of the denial of a constitutional right.” 28 U.S. C. § 2253(c)(2). A petitioner m ust show “that reasonable jurists could debate whether . . . the petition sho uld have been resolved in a different manner or that the i ssues presented were adequate t o deserve encouragement to p roceed further.” Howell v. Trammell , 728 F.3d 1202, 1224–25 (10th Cir. 2013) (quoting United States v. Taylor , 454 F.3d 1075, 1078 (10th Cir. 2006)). This means that we consid er whether reasonable jurists could debate the

7 We do not read Souders’s appli cation for a COA from our court as making any claim under 28 U.S.C. § 2254( d)(2), or (e). In any event, S ouders has failed to provide a sufficient argument s upporting any clai m that the sta te-court decision was “based on an unreasonable determ ination of the facts in light o f the evidence presented in the State court pr oceeding,” or clear and convinci ng evidence rebutting the presumption of correctness, as required by those subsection s.10 correctness of the federal dist rict court’s order denying habea s relief. In doing so, we also apply to the CCA’s decision the same double-deference stan dard required by the tandem of Strickland and 18 U.S.C. § 2254(d). 8 In other words, we follow the Supreme Court’s direction to “lo ok to the District Court’s appl ication of AEDPA to petitioner’s constitutional claims and ask whether that resolut ion was debatable amongst jurists of reason.” Miller-El v. Cockrell , 537 U.S. 322, 336 (2003). In deciding whether a petitioner is entitled to a COA, we overv iew the habeas claims and generally a ssess their merits. Id. at 336. We lack juris diction to adjudicate the actual merits. Id. at 336–37. Our job at this stage is not to decide whether a cl aim will ultimately succeed , or even whether som e jurists would gra nt the petition. Id. at 337–38. After all, “a claim can b e debatable even though every jurist of reason might agree, after the COA has been gra nted and the case has received full consideration, that petitioner will not prevail.” Id. at 338. Here, the federal district court ruled that the CCA had not vio lated clearly established law by denying Souder s’s ineffective-assistance cla ims on the merits.

8 The first level of defere nce arises “because the Strickland standard is a general standard, [so] a state court has even more latitude to reasonably determine that a defendant has not s atisfied the standard.” Knowles v. Mirzayance , 556 U.S. 111, 123 (2009). The second level arises from review under the Antiterrorist and Effective Death Penalty Act (AE DPA), which conditions a writ on there being “no possibility fairminded jurists c ould disagree that the state co urt’s decision conflicts with this Court’s precedents; th at is, “Section 2254(d) reflect s the view that habeas corpus is a ‘guard against extre me malfunctions in the state cr iminal justice systems,’ not a substitute for ordinary e rror correction through appeal.” Harrington v. Richter , 562 U.S. 86, 102–0 3 (2011) (quoting Jackson v. Virginia , 443 U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring)).11 Souders v. Dauffenbach , No. 1:17-cv-02883-RM, at (D. Colo., filed Sept. 24, 2018). See 28 U.S.C. §2254(d)(1). In partic ular, the district court found reasonable the CCA’s determination that Souders h ad failed to show prejudice u nder Strickland

— that he would have taken the pl ea offer. Reviewing under AEDPA deference, the district court concluded that t he CCA’s decision was neither co ntrary to clearly established law (a Supreme Cour t holding) nor an unreasonable application of clearly established law to his case. Souders v. Dauffenbach , No. 1:17-cv-02883-RM, at 15– 18 (D.Colo., filed Sept. 24, 2018) . As mentioned, the federal d istrict court had already dismissed Souders’s cla im in which Souders had asserted ineffective assistance of post- conviction counsel. “Where a district cour t has rejected the constitution al claims on the merits, the showing required to sat isfy §2553(c) is straightforward. The pe titioner must demonstrate that reasonable juri sts would find the district cou rt’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). The district court properl y limited its review “to the record that was before the state court that adjudicated the claim on the merits,” and required “an examination of the state-court de cision at the time it was made .” Cullen v. Pinholster , 563 U.S. 170, 181–82 (2011). DISCUSSION For issues the CCA decided on th e merits, Souders must show tha t the CCA’s decision is contrary to, or an u nreasonable application of clea rly established law. 28 U.S.C. § 2254(d)(1). In analyzi ng this, we begin by reviewing t he Supreme Court12 cases he relies upon to support his claims. These cases concern Strickland claims of ineffective assistance of c ounsel in the plea context. A. Souders’s Cited Supreme Court Cases Involving Strickland Claims in the Plea Context Under the Strickland framework, a petitioner mu st show (1) that “counsel made errors so obvious that couns el was not functioning as ‘cou nsel’” and (2) that “the deficient performance prejudiced the defense.” Johnson v. Carpenter , 918 F.3d 895, 900 (10th Cir. 2019). In his petition, Souders cites the f ollowing cases in which the Supreme Court has applied the Strickland framework in the plea context.
In Hill v. Lockhart , 474 U.S. 52 (1985), Mr. Hill pl eaded guilty to first-degreemurder and theft charges, agre eing to terms of 35 and 10 years of imprisonment. Id. at 53. Before pleading, Mr. Hi ll obtained advice from counsel t hat he could become parole eligible after completi ng one-third of his prison term. Id. at 54–55. This advice proved wrong. Instead, as a seco nd offender, Mr. Hill was not p arole eligible until he completed one-half of his prison term. Id. at 55. So just a year after Strickland , the Court was called upon to decide w hether the same ineffective-as sistance-of-counsel rule applied in this plea setting. Id. at 57. After reviewing w hy prejudice mattered in this context too, the Court held “that the two-part Strickland v. Washington test applies to challenges to guilty p leas based on ineffective assi stance of counsel.” Id. at 58. To meet the require d showing of prejudice, Mr. Hill had to “show that there is a reasonable probability that, butfor counsel’s errors he would not have pleaded guilty and would have insiste d on going to trial.” Id. at 59. The Court ruled that Mr. Hill13 had failed to meet the Strickland -prejudice showing, noting th at he “did not allege in his habeas petition that, had couns el correctly informed him ab out his parole eligibility date, he would have pleaded not gu ilty and insisted on going to trial.” Id. at 60.
In Padilla v. Kentucky , 559 U.S. 356 (2010), Mr. P adilla pleaded guilty to transporting a large amount of marijuana in his trailer. Id. at 359. He was a native of Honduras but also was a lawful p ermanent resident of the United States, even having served in Vietnam. Id. His counsel advised him that a c onviction would not result in deportation, when, in fact, it virtually ensured it. Id. The Court agreed with Mr. Padilla that “constitutionally c ompetent counsel would have adv ised him that his conviction for drug di stribution made him subject to automatic deportation.” Id. at 360. In finding Mr. Padilla’s couns el ineffective, the Court re lied on prevailing professional norms, the importan ce of a client’s right to stay in the United States, and the immigration statute’s bei ng “succinct, clear, and explicit in defining the removal consequences for Padilla’s conviction.” Id. at 366–68. The Court rejected the Kentucky Supreme Court’s view tha t the ineffectiv eness claim co uld not reach collateral matters, those not wit hin the sentencing court’s aut hority.” Id. at 364. After ruling that “ Strickland applies to Padilla’s claim,” the Court remanded for a determination of whether Mr. Padilla could show prejudice. Id. at 374. In summary, the Court noted that “we have l ong recognized that the negotiat ion of a plea bargain is a critical phase of litigati on for purposes of the Sixth Ame ndment right to effective14 assistance of counsel.” Id. at 373 (citing Hall , 474 U.S. 57; McMann v. Richardson , 397 U.S. 759, 770–71 (1970)).
In Missouri v. Frye , 566 U.S. 134 (2012), Mr. Fry e was charged with a felony for driving with a revoked licen se after three previous convict ions for that offense. Id. at 138. The prosecutor sent Mr . Frye’s counsel two alternate p lea offers, the first agreeing to recommend a 3-year sen tence for a guilty plea to th e felony, with a 10- day sentence and no recommenda tion on probation; and the second agreeing to a misdemeanor plea if Mr. Frye agreed to a 90-day sentence. Id. The offers were to expire on December 28 , but counsel failed to convey the offers. Id. After a later driving-while-revoked arrest, Mr . Frye pleaded guilty to the or iginal felony charge, and the prosecutor recommended th e sentence offered in the firs t plea offer. Id. But the court sentenced him to th ree years’ imprisonment. Id. At his state postconviction heari ng, Mr. Frye “testified he wou ld have entered a guilty plea to the misdemeanorhad he known about the offer.” Id. The Missouri Court of Appeals ruled in Mr. F rye’s favor, concluding that he had “met both of the requirements for showing a Si xth Amendment violation under Strickland .” Id. After granting certiorari, the S upreme Court looked to Hill and Padilla “in considering the role of counsel in advising a cl ient about a plea offer and an ensuing guilty plea.” Id. It observed that “ Hill established that claims of ineff ective assistance of counsel in the plea bargain context are gove rned by the two-part test set forth in Strickland .” Id. at 140 (citing Hill , 474 U.S. at 57). The Court not ed that Mr. Hill’s ineffectiven ess claim had failed for lack of pr ejudice—referencing Mr. Hill’s f ailure even to allege15 that if properly advised he would have opted for trial instead of pleading guilty. Id. at 141. After reviewing those two cases, the Court noted their differen ces with Mr. Frye’s— Hill and Padilla involved defendants pleading guilty on incorrect advice, while Frye involved a defendantwho had pleaded guilty on accurate advice from counsel. So Mr. Frye’s argument di ffered because i t involved “t he course of legal representation that preceded it with respect to other potential pleas and plea offers.” Id. at 141–42. In this different cir cumstance, the Court commented that “[t]he inquiry then becomes how to define the duty and responsibilities of def ense counsel in the plea bargain process.” Id. at 144. The Court held “that, as a general rule, defense counsel has the duty to communi cate formal offers from the pros ecution to accept a plea on terms and conditions that may be favorable to the accus ed.” Id. The Court declined to address possible exce ptions, noting that “the offerwas a formal one with a fixed expiration date.” Id. at 145. By not conveying the offer, Frye’s counsel had rendered deficient performance. Id. Turning to whether prejudice re sults from plea offers having “l apsed or been rejected because of c ounsel’s deficient per formance,” the Court required a showing of “a reasonable probability the y would have accepted the earli er plea had they been afforded effective assi stance of counsel.” Id. at 147. The Court also required a defendant to show a reasonable probability that the prosecution would not have canceled its offer before the def endant entered the guilty plea , and also that the sentencing court would have accepted it. Id. The Court thought that Mr. Frye might16 have shown a reasonable probab ility he would have accepted the first plea offer if his counsel had told him of it—becaus e he later pleaded to a more s erious charge. Id. at 150. But the Court still remande d on the prejudice question, ne eding to know whether Missouri law would require the pro secutor and court to have pro ceeded with the plea deal even after Mr. Frye was agai n arrested on the same charge. Id. at 151.
In Lafler v. Cooper , 566 (2012), decided the same day as Frye , Mr. Cooper had fired a gun repeatedly at a fleeing woman, striking her in the buttock, hip, and abdomen. Id. at 161. The state charged him w ith assault with intent to comm it murder, felon in possession of a firearm, possession of a firea rm in connection with a felony, and misdemeanor m arijuana possession. Id. The prosecuting attorney twice offered a plea deal by which the state would recommend a senten ce of 51 to 85 months on the other two counts. Id. Mr. Cooper communicated to the court his admission of guilt and desi re to accept the plea offer. Id. But he later rejected the offers on the advice of counsel—w ho persuaded him that a jury w as unlikely to convict on the charge of assault with intent to commit murder, because the victim was shot below the waist. Id. During trial, the pros ecuting attorney offered a significantly-less-favorable ple a deal, which Mr. Cooper reject ed. Id. At trial, he was convicted on all counts and was sentenced to imprisonment for 1 85 to 360 months. Id. The federal district court gran ted Mr. Cooper a conditional wri t calling for specific performance of the original plea agreement. Id. at 162. It concluded “that the Michigan Court of Appeals had unr easonably applied the constitu tional standards for17 effective assistance o f counsel laid out” in Strickland and Hill

. Id. The Sixth Circuit affirmed, and the Supreme C ourt granted certiorari. Id. The Court began by reviewing g overning principles, including th at “Defendants have a Sixth Amendm ent right to counsel, a right th at extends to the plea bargaining process,” id. (citing Frye , 132 S. Ct. at 1386–87, and Padilla , 130 S. Ct. at 1486). The Court noted tha t “[d]uring plea negotiations defendants are ‘entitled to the effective assistan ce of competent counsel.’” Id. (quoting McMann , 397 U.S. at 771). And finally, the C ourt said that “[i]n Hill , the Court held ‘the two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.’” Id. (citing 474 U.S. at 58). T hen, after noting that the parties had agreed that tria l counsel’s performance was def icient, the Court turned

to Strickland prejudice. Id. at 163. Here, the Lafler Court restated its rule that “ [i]n the context of pleas a defendant must show the outcome o f the plea process would have been different with competent advice.” Id. (citing Frye , 566 U.S. at 1388). Where “the ineffective advice led not to an offer’s acceptance but its rejection,” the Court determined, “a defendant must show that but for the ineffe ctive advice of counsel there is a reasonable probability that the plea offer w ould have been presented to th e court. . . .” Id. The Court rejected the government’s argument that conviction at a f air trial rules out Strickland prejudice. Id. at 164. The Court concluded th at Mr. Cooper had satisfied both Strickland prongs. Id. at 174. But for the first tim e in this series of cases, another issue remained—wha t effect might AEDPA have?18 Under 28 U.S.C. § 2254(d)(1), the federal courts must defer to the state court’s ruling unless it was contrary to or an unreasonable application of clearly established federal law, that is, a Supreme Court holding. The Court noted that “[a] decision is contrary to clearly established law if the state court ‘applies a rule that contradicts the governing law set forth in [Supreme Court] cases.’” Id. at 173 (citing Williams v. Taylor , 529 U.S. 362, 405 (2000)). Appl ying this standard, the Court concluded that the Michigan Court of Appeal’s d ecision indeed was contrary to clearly established federal law, namely, Strickland

. Id. at 173. It said that the st ate court had correctly identified the issue as ineffect iveness of counsel but had “fai led to apply Strickland to assess it.” Id. at 173. The Court required more than merely inquiring into whe ther the plea was rejected kno wingly and voluntarily. Id. So now free from § 2254(d)(1)’s deferential review, the Court ruled for Mr. Cooper based on Strickland

. Finally, in Lee v. United States , 137 S. Ct. 1958 (2017), Mr. Lee was a permanent resident from South Ko rea, who had lived in the Unite d States for most of his life. Id. at 1962. Over the years, he ha d built a successful restaurant business, but still chose to sell drugs as a side business. Id. at 1962–63. After being charged federally, Mr. Lee hired counsel , who began trying to negotiate a plea. Id. at 1963. Mr. Lee repeatedly asked his couns el about whether he would fac e deportation if found guilty. Id. After his counsel assured him he was not at risk of deportation , Mr. Lee pleaded guilty and was senten ced to a year and a day in pri son. Id. Unfortunately for Mr. Lee, his counsel was mist aken about the immigration con sequences—his drug19 conviction qualified as an aggravated felony under the Immigrat ion and Nationality Act, which required deportation. Id. Mr. Lee filed a federal habeas petition under 28 U.S.C. § 2255, arguing ineffective assistan ce of trial counsel. Id. The district court denied relief, and the Sixth Circuit affirmed. Id. at 1964. The Sixth Circuit found that Mr. Lee’s claim faltered on Strickland ’s prejudice prong—that he had not shown a reasonable probability that he would have d eclined to plead guilty and ins isted on a trial. Id. The Sixth Circuit relied primarily on the overwhelming evidence of guilt. Id. The Supreme Court granted certiorari. The Court acknowledged that a de fendant’s prospects at trial ar e important when the prospects are what mot ivates a defendant to plead and forego trial. Id. at 1965. But the Court observed tha t Mr. Lee’s calculation was notof that ilk. Id. Here, the counsel’s error was not the s ort that would affect the chan ces of success at trial (as would, say, a failure to fi le a suppression motion), but in stead was the sort that “affected Lee’s understanding of t he consequences of pleading g uilty.” Id. The Court recognized the reality that a de fendant lacking a viable defens e faces long odds and so “will rarely be able to show prejudice from accepting a guil ty plea that offers him a better resolution than wou ld be likely after trial.” Id. at 1966. Even so, because the Court had “no reason to doubt the paramount importance Lee plac ed on avoiding deportation,” and because “substa ntial and uncontroverted evide nce” backed Mr. Lee’s position that he would nothave pleaded guilty absent his counsel’s deficient performance, the Court ru led in his favor on Strickland prejudice. Id. at 1968–69.20 B. Souders’s Claim and 28 U.S.C. § 2254(d) 1. 18 U.S.C. §2254(d)(1): “Contrary to” Clearly Established Law To begin, we see no fau lt in how the CCA applied Strickland ’s legal framework. As Strickland directs, the CCA analyzed ine ffectiveness using the two prongs—deficient performance and prejudice. Nor does Souders di sagree. Instead he complains that the federal distr ict court erred in its deferent ial review of the CCA’s conclusion that he had not shown prejudice under Strickland

. “[A] state-court deci sion is contrary to cl early established la w only ‘if the state court applies a rule that contra dicts the governing law set for th in [the Supreme Court] cases’ or ‘if the state c ourt confronts a set of facts t hat are materially indistinguishable from a decisi on of th[e] Court and neverthele ss arrives at a result different from [its] precedent.’” Vreeland v. Zupan , 906 F.3d 866, 875 (10th Cir. 2018) (quoting Williams v. Taylor , 529 U.S. 362, 405–06 (2000)). To show Strickland prejudice, Souders needed to show that absent counsel’s errors, he would have pleaded guilty and not taken his case to trial. 9 Hill , 474 U.S. at 59. Yet he equivocated on this point. No Supreme Court holding permits this

9 The CCA did not decide whetherSouders’s counsel had provided constitutionally deficient perfo rmance. Ordinarily, we would re view this question de novo, freed from any of § 2254( d)(1)’s constraints. But here we need not reach this question. Instead, we can d ecide Souders’s petition on Strickland ’s prejudice prong.21 equivocation. In fact, as ear lier mentioned, the Court in Hill faulted the petitioner for “not alleg[ing] in his habeas p etition that, had counsel correc tly informed him about his parole eligibility date, he would have pleaded not guilty a nd insisted on going to trial.” Id. at 60. Nor was this stray langua ge. Twenty-seven years later, in Frye , the Court reviewed Hill and reemphasized that Mr. Hill “had not alleged that, even if adequate advice and assistance ha d been given, he would have el ected to plead not guilty and proceed to trial.” 566 U.S. at 141. Accordingly, we cannot say that fairminded jurists might debate the district court’s conclusion that Souders has failed to demonstrate he is entitled to relief under the ‘contrary to’ component of §2254(d)(1). 2. “Unreasonable Application of ” Clearly Established Law An unreasonable application of S upreme Court holdings “must be ‘objectively unreasonable,’ not merely wrong, e ven ‘clear error’ will not su ffice.” Lockyer v. Andrade , 538 U.S. 63, 75–76 (2003). “As a condition for obtaining habe as corpus from a federal court, a state pri soner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justif ication that there was an error well understood and compre hended in existing law beyon d any possibility for fairminded disagreement.” Harrington v. Richter , 131 S. Ct. 770, 786–87 (2011). A petitioner can obtain relief “ under § 2254(d)(1)’s unreasonab le-application clause if, and only if, it is so obvious that a clearly established ru le applies to a given set of facts that there could be no ‘fa irminded disagreement’ on the q uestion.” White v. Woodall , 572 U.S. 405, 427 (2014) (citing Harrington , 131 S. Ct. at 787).22 Here, the Supreme Court holdings on ineffective counsel in the plea setting do not give a clearly established ru le that applies to the facts o f Souders’s case to gain him relief. As mentioned, the S upreme Court cases run counter t o Souders’s position—at the very least they strongly suggest that a petitio ner’s equivocal testimony on whether he would have availed himself of a plea of fer is insufficient. Further, even had Souders unequi vocally testified that he would have taken the plea deal offered, we would nottake that subjective testimony on faith. Instead, we would also consider the obj ective facts in the record. See Heard v. Addison , 728 F.3d 1170, 1184 (10th Ci r. 2013) (quoting Padilla v. Kentucky , 559 U.S. 356, 371 (2010) (emphasis added)). Here, on balance, those facts do not favor S ouders. For example, represented by the same counsel , Souders had previously obtaine d a plea offer and guilty plea in a petty -theft case. Obviously , Souders knew abou t the plea-agreement process and the possible benefi ts of obtaining a plea. Despite that, Souders never claimed to have asked his couns el about seeking a plea deal, de spite knowing he faced a lengthy sentence withou t one. Further, Souders continue d to maintain his factual innocence (i.e., that the victim had consented to the s exual intercourse), even at the post-conviction proceedin g. By continuing to assert, eve n after his conviction, that the victim had consented to the sexual intercourse, Souder s certainly raises doubt whether he could even have laid a sufficient factual basis to s upport a guilty plea to a sexual-offense felony. Under th ese circumstances, we cannot say that reasonable jurists could debate whether the federal district court erred i n concluding, after giving the necessary deference to the CCA, that the CCA failed to reas onably apply clearly23 established law when it conclude d that Souders had failed to sh ow Strickland prejudice. C. Souders’s Habeas Claim Based on P ost-Conviction Counsel’s Alleg ed Ineffective Assistance In addition, addressing Souders’s other habeas ground, we concl ude that the district court correctly ruled t hat § 2254(i) bars Souders’s cl aim based on allegedly ineffective assistance of post- conviction counsel. 28 U.S.C. § 2254(i) (“The ineffectiveness or incompetence of counsel during Federal or St ate collateral postconviction proceedings shall notbe a ground for relief in a pr oceeding arising under section 2254.”). To overco me this bar, Souders cites Martinez v. Ryan , 566 U.S. 1, 9 (2012), which held that “[i]nadequate assistance of c ounsel at initial-review collateral proceedings may establish cause f or a prisoner’s procedural def ault of a claim of ineffective assistance at tria l.” Souders’s Opening Br. at 7–8. But Martinez doesn’t apply here, because Souders did n ot default on his ineffective assistance-of-trial-counsel claim. Rather, his post-convicti on counsel squarely raised the claim in the state court, and the state district court held an evidentiary hearing on the cla im. See Martinez , 566 U.S. at 9. As such, § 2254(i) bars Souder s’s claim of ineffective assis tance of post-conviction counsel, and reasonable jurist s could not debate the point. See Slack , 529 U.S. at 484.24 CONCLUSION We deny Souders a COA and dism iss his appeal. We grant Souders ’s motion to proceed in forma pauperis

. Entered for the Court
Gregory A. Phillips Circuit Judge