Clerk 

Court of Criminal Appeals 

P.O. Box 12308 Capitol Station 

Austin, Tx~ 78711 C.M.R.R.R.# 7014 2870 0001 6610' 6407 

.:JJ.:in~ 28, 2015 

Re: Relators Leave of Court to iile Mandamus 

Petition. for Writ of Mandamus TEX~ R. APP. p. 9 .J (b}(l) 

Trial Co~rt Nd'~ 5591;5593 and 5617 

1A'Judicial District Cqurti~N~wtbn County 

Styled: Jarnes Allen Pelloat, R~lator 

·Jerome ·P~··•:gwens, Judge,, Respondent - . . . 

Texas RECEIVED IN . COURT OF CRIMINAL APPEALS 

JUL 15 2015 

Dear Cl~rk,' Court• of CriminaLAppeals of Texas; Abe\ Acosta, Clerk· .. . . 

By recedpt,. pl,eas·E:· finq. enclosed one original copy of Relators Mcitioti' 

for·· Leave to· file Writ·· of Maildairn.is as well .as Relators Peti ton fOr 

Writ ··of :Mandams ·.including his App~ndix. ·.· ·. · · · 

. . . . . .. . 

Because this is a pleading pursuant,to,TEX. C,ODE'CRIM~ .PROC. art. 

11.07, I .have included only .one copy.· ., ' \ . . ' : . 

Please file' a~d bring'·i:o the Courts attention so that it may ·consider 

and is sue a ruling. · · 

Thank you·· in .advance for your kind and prompt attention in this 

matter .• : . . . . . . . . . . 

i~~-~~-~~ Jam~s Allen Pelloat, Relator pro se 

C. T •. Terrell Unit," 1289716 · 

1300 FM 655 

Rosharon;, Tx. 77 583 

cc. Jerome P. Owens, Respondent 

District Attorney, Newton County Texas (LESS EXHIBITS AND APPENDIX) 

ENCLOSURES: 

. B:XHIBITS 1- Lf· 

APPENDIX 1- 5.3 
IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

TRIAL COURT NUMBERS 5591; 5593 AND 5617 

JAMESALLEN.PELLOAT, Relator 

vs. 

JEROME P. OWENS, JUDGE, 1A DISTRICT COURT;·. NEWTON COUNTY TEXAS, 

Respondent 

RELATOR'S MOTION FOR LEAVE OF . COURT TO FILE. PETITION FOR 

. . - . 

WRIT OF MANDAMUS TO COMPEL RESPONDENT TO ORDER DISTRICT; CLERK . . . . . . . 

TO PROCEss· APPLICATIONS'fORWRIT'OF HABEAS CORPUS'PURSUANT 

TO TEX~ CODE CRIM.· PROC. art. 11.07 

·.,_ 

! '. 

;~***-,''**-,''*********1'*-1'********'**'*******-;'(*******"'~-***-1'*****"'~'**.,''**""'***** 

JAMES.ALLEN PELLOAT,-RELATOR PRO SE 

C. T. TERRELL UNIT', '1289716 

t300 FM·655 . 

ROSHARON, TX~ 77583 
5591; 5593 AND 5617 

JAMES ALLEN PELLOAT, Relator . § IN THE COURT. OF CRIMINAL APPEALS 

v. 

JEROME P. OWENS, Judge, . Respondent § OF. TEXAS 

RELATOR'S MOTION FOR, LEAVE. OF' COURT FOR' WRIT' OF' MANDAMUS 

TO COMPEL' RESPONDENT TO' ORDER' DISTRICT'' CLERK. TO' PROCESS . 

APPLICATIONS FOR WRIT OF HABEAS CORPUS· PURSUANT 'TO TEX.' CODE. 

GRIM. PROC·~ art. 11.07 

TO THE. COURT OF CRIMINAL APPEALS. OF 'TEXAS: 

JAMEs· ALLEN .. PELLOAT, Relator in the above T.rial Court Numbers 

.. . . 

seeks Leave of .Cburt to File.Petitibn for;Writ of-Mandamus tb Compel 

Respondent, Honorable· Jerome P .. Owens, Presiding -Judge of the 1A 

Judicial District. Court, Newton County· Texas, to. Order· District 

Clerk of·Newt9n County,_ Texas \to Process Applications for Writ of 

Habe.as Corpus, pursuant to TEX~ CODE GRIM. PROc;·.·art. 11.07~ In 

support Relator states that this Court has· Jurisdiction pursuant to 

TEX. CODE GRIM. PROG~ art. 11.07 § 3(.a) 

Relator has no other remedy in law. 

PRAYER 

WHEREFORE PREMISES. CONSIDERED, Relator prays thi_s Court of 

Criminal Appeals grant him lea~e to proceed with this P~tition. 

i~--~_._c;t_~-- James Allen P~lloat, Relator pro se 

C. T. Terrell Unit, 1289716 

1300 FM 655 . 

Rosharon, Tx. 77583 

-1-
CERTIFICATE OF SERVICE 

I certify that a true and. correct copy of Relator's M~tion for Leave 

of Court for Writ of Mandamus to Compel Respondent to Order District 

Clerk to Process Applications for Writ of Habeas C~rpus Pursuant to 

TEX. CODE GRIM. 'PROC. art. 11.07 was sent to the below by U.S. Mail 

first class postage pre paid on this' the·~~k'~day of :>-"~~ ' 2015 

Honorable Jerome P. Owens, Judge 

lA Judicial Di~trict Court, Newton County Texas 

203: Courthouse, 2nd ... : Floor 

Woodville, Tx. 75979 

District Attorney, Newton County Texas 

lA J~dicial District Court 

203 Counthouse 

Woodville, Tx. 75979 

-2-
IN THE COURT OF CRIMINAL APPEALS OF'TEXAS 

TRIAL COURT. NO'.S .. 5591; 5593 AND 5617 

JAMES ALLEN PELLOAT,- Relator 

vs. 

JEROME: P. OWENS; JUDGE,· 1A DISTRICT. COURT,. NEWTON COUNTY TEXAS, 

Respondent 

RELATOR'S. PETI'ITON FOR WRIT 'OF 'MANDAMUS TO COMPEL RESPONDENT 

TO ORDER ·DISTRICT .CLERK TO ·PROCESS. APPLICATIONS FOR .WRIT OF . ·.. . . . .. ·. 

HABEAS CORPUS PURSUANT TO' TEX'~ CODE CRIMo' PROC •. art. 11.07 : ,·.· 

JAMES ALLEN PELLOAT, RElATOR ~RO SE 

C.T~ TERRELL UNIT~ 1289716 

13.00 FM 655 

ROSHARON, TX. 77583 
5591; 5593 AND 5617 

JAMES ALLEN PELLOAT, Relator 

v. 

§ 

§ 

IN THE COURT OF 

JEROME P~-OWENS, Judge 

Responden.t.u .. ; :.§ 

CRIMINAL . APPEALS 

OF TEXAS 

RELATOR'S PETITION FOR WRIT OF.MANDAMUS·TO COMPEL RESPONDENT 

' ! • • · ... • - . • 

TO ORDER DISTRICT CLERK.TO PROCESS APPLICATIONS FOR WRIT OF 

HABEAS CORPUS PURSUANT To· TEX. CODE C'i~.-IM~>:'PROC~ art .. 11.07 

TO THE COU:RT OF CRIMINAL APPEALS OF TEXAS::· 

. '\ . 

JAt>:tES A.~LEN .. PELLOAT, : Rela•to:f ;pr9 $e in' the above Tria.l Court 

numbers ·seeks this Court ·of. Criminal _Appe~ls to order the Respondent . ,I•. 

' Jerome' P~ Owens, Judge of. the 11\ Judicial District Court, Newton 

. County Tex·as . to· order the District Clerk of Newton Cou~ty Texas to 

process Relators ·Applications for Writ. of Habeas Corpus pursuant· to 

.· the statu tory :tequiremen ts of TEX. CODE CRIM. P~OC~ ~rt. 11.07 that 

has ~~en. file4 since J4ly 11; 1dizand not otherwise pro~~s~ed as 

required by l~w~ · In supper~~ Relatoi will ·show just cause as to 

why Mandamus should issue: 

JURISDICTION 

This Court of Criminal Appeals .has jurisdiction pursuant to 

the TEXAS STATE CONSTITUTiON Article V § 5 in all criminal matters. 

STATEMENT DF THE CASES 

1. 

On July 11, 2012, Relator, .. a State prisoner who is being 

confined pursuant to the above case numbers submitted his Amended 

Applications for Writ of Habeas Corpus which were subsequently 

l • See Appendix at 15 

-1-
file marked by the District Clerk of Newton County and copies 

were returned to the Relator. 

On October 18, 2012 and November 12, 2012. Relator wrote the 

District Clerk of Newton County to inquire into the disposition of 

his pending Applications for Writ of Habeas Corpus Appendix 16-17 

and has not received ~ny response from his inquiries. 

Finally on Dec~mber 10~ 2014, Rel~tor submitted to the 

Presiding Judge of the 1A Judicial District Cbu~t of Newton County, 

T~xas (Convicting Court) his Motion entitled as : Applicants Motion 

to Compel Trial Court Judge to Order District Clerk ta Proc~ss 

Amended Application for Writ. of Habeas. Corpus Filed J:uly 11, 2012 

and brief in suppqrt in Tri~l·Court Numbers 559L; 5593 and 5617. : . . 

The above Motion was sent to Ju~ge Jerome P.·owens by certified 

Mail, Return Rec:eipt Requested in which Relator asked for a file2. 

marked copy of the letter presenting the Motion to Compel. 

On April 13 ,· 2015, Relator sent another iet'te.r to the Presiding 

Judge of the 1A Judicial District Court, Newton· County Texas, again. 

making an inquiry ihto the disposition of his Motion to Compel See 

Exhibi.t-2 . Relator. advised the Respondent, Judge Jerome P. Owens 

that he would wait 1fr days before seeking Mandamus. 

ARGUMENT IN' SUPPORT OF MANDAMUS 

Relator submits to this Court of Crimina~ Appeals his Appendix 

in which he moves this Court adopt as presented to the Respondent· 

2. There are Two ( 2) records attached herein for this Court to· 

consider: Exhibits and Appendix. The Appendix follows the Exhibits 

such as. Exhibit;..l.: Applicants· Mbt-i·on to; ·Compel, Returned file 

marked•. copy ·.of ·letter presenting.. Moti'oh' to. Cdmpel.; Envelope. and 

Green .Card"a~knowledging Receipt. · · 

-2-
on December 10, 2014. The only exceptions to the already submitted 

Appendix to the Respondent are copies of an inquiry that Relator 

made to the Texas State Law ·Lib~ary to determine whether or not 

h~s Applications had already be~n disposed of by this Court and are 

incorporated .herein as Exhibit-3: Letter-· to Texas.-State .. Law ·Library; 

Response and Index' o.f Applications. [; 

:L ~; · Rel:~toi'.; has not 're~eived any- tiM'Jflonse by Respondent at the 

date of submission of this Petition for Wtit of Mandamus. 

Relator contends that he ~s entitled tb·Mandamus relief for 

this Co~rt of Criminal Appeals to ord~r Respondent, Judge Oweps of. 

the 1A Judicial Di~trict Court, Ne~ton County Texas to 6rder. the 

D~strict Clerk of Newton County Texas to process the already late 

·Applications for Writ of Habeas Corpus. 

Relator has no ot;.ber remedy at law to redress the alleged harm 

and under relevant law and factsi the act sotigh~ to be compelled 

is purley ministeriai and n~t involving· a discre~lonary or.judi~ial ---- --------------------------- - --- -------~ -- - - ~- ---- -------- ------------------ - -- -- --.-

decision State ex rel~·Yobng·~~ Sixth Judicial District Cotirt of 

Appeals, 2-36 s ~w. 3d '207, 210: (Tex. Grim. App. 2007)(0riginal 

proceedings) 

Relator.further contends that the act is ministerial if it does 

not involve the exercise of any discret~on and the.Relator ha~ a 

clear right.to relief State ex. rel. Hill v~ Court df Appeals for 

the Fifth Di~trict, 34 S.W. 3d 924, 927 (Tex. ·crim. App. 2001)( · 

Or~ginal proceedings); In re Daisy, 15.6 s.w. 3d 922, 924 (Tex. App.-

Da1las 2005 orig. proceeding) 

Pursuant to the Rules of Judicial Administration, Rule 7 states 

a: A District or Statutory County Court Judge shall (6) to the 

-3-
extent consistent with safeguarding the rights of litigant to the 

just processing of their cases on the docket of .the Court, 

including .(e)local rules, consistently applied~ to regulating 1 

procedures and timely'pleadings, discovery·and motions See TEX. 

GOV. CODE§ 74.024, Rule 7 (6)(e) 

The District.Clerk is required to file the Applications and 

to process them according to the provisions of TEX. CODE CRIM. PROC. 

art. 11.07 § 3(b) 

' 

Relator has had ho alternative but td go through the presiding 

Judg~ of the convicting .Court and rely on the Judge~ to order the . ·. . . .. 

District. Clerkcof N~wton Couhty Texas. to process his Applications __ 

for Writ of Habeas Co~pu~ pursuant to TEX: CODE.CRIM. PROC~ art. 

11.07 § 3 (b) 

.. 

CONCLUSION 

Relator ha~ previOusly submitted his Motibri to Compel to the 

Respondent with no apparant relief consistent with his duty as a 

Distr~ct Judge and th~ administration of his docket. 

Relator presented his Motion to Compel in the orderly manner as 

is required by law~ 

Rel~tor moves that Mandamus should issue to compel the Presiding 

Judge to order the District Clerk of Newton County Texas to process 

his Applications for Writ of Habeas Corpus as.required by law. 

PRAYER 

WHEREFOREPREMISES'CONSIDERED, Relator prays for relief that 

is consistent with his argument, Exhibits and Appendix as presented, 

that Mandamus will issue. 

-4-
3. 

art~ 11.07 § 3 (b) 

Respectfully Submitted, 

James Allen Pelloat, Relator pro se 

C.T·. Terrell UNit, 1289716 

1300 FM .655- - -

Rosharon, Tx. 77583 

UNSWORN-DECLARATION. 

I, Jame~ Allen Pelloat, an Offender incarcerated at the C.T: Terrell 

Unit located in B±azoria County T~xas declare and verify that the 

cbntents he~ein are true and correct under penalty of perjury. Done· 

on this the ?::b'~ day of -:s"~~ , 2015 

_Q - ~G&~--~· 

~~------~------~~~ Jam~s Allen Pelloat, Affiant 

C.T. Tetrell Unit, 1289716 

1300 FM 655 

Rosharon, Tx. 77583 

CERTIFICATE OF SERVICE 

I certify that a true and corre~t copy pf Relators Petition for Writ 

of Mandamus to Compel Respondent to -:··.i-::, District Clerk to Process 

Applications for .Wtit of Habeas ~brpus Pur~uant to TEX." CODE GRIM, 

PROC. art. 11.07 was sent to the bela~ by U.S. Mail, first class, 

postage pre paid on this the ?=~~ day of -:r.:~~ ~ 2015 

Jerome P. Owens, Judge 

1A Distri~t Court, Newton County Texas 

203 Courthouse, 2nd. Floor 

Woodville, Tx. 75979 

District Attorney, N~wton County Texas 

1A District Court 

203 Co1i:t:t~ho~.u.!3·e-: •. · 

Woodville, Tx. 75979 

James 

2~--~--8-~-- Allen Pelloat 

3, See Exhibit-4 : Letter dated May 27, 2015; Texas--st'ate Law Library in 

reference to Index for AP-76,779 (entire file) In an abundance of 

caution, Applicant submitted to the Texas State Law Library his 

inquiry into the contents of AP-76, 779 See Also_. Ex Parte Kerr, 

64 S.W. 3d 414, 419 (Tex. Court Grim. App. ZUU2)(TbiS Court stated 

that Applicant had only one bite of the apple) See & Com~are . Applicant's Exhibit's 3;4 (Denying Applicant that bite)TEXAS STATE 

CONSTITUTION, Article One ~Nineteen·) (Denying Due Process of the 

Law of the Land) -5-
INDEX OF EXHIBITS 

EXHIBIT~!: APPLICANTS MOTION TO COMPEL: RETURNED FILE MARKED 

COPY OF LETTER PRESENTING MOTION TO COMPEL; ENVELOPE 

AND GREEN CARD ACKNOWLEDGING RECEIPT; 

EXHIBIT.;.2: APRIL 13, '2015 LETTER T0 .;JUD§E 0WENS '(RESPONDENT) 

GREEN CARD ACKNOWLEDGING RECEIPT 

EXHIBIT~3: LETTER TO TEXAS 'STATE LAW LIBRARY; RESPONSE AND 

INDEX OF APPLICATIONS 

EXHIBIT-4: LETTER FROM TEXAS STATE LAW. LIBRARY, DATED MAY 27, 2015 

IN6EX FOR AP 76,779 
EXHIBIT-1 

APPLICANTS MOTION TO COMPEL; RETURNED FILE MARKED COPY OF 

LETTER PRESENTING MOTION TO' COMPEL; ENVELOPE AND GREEN CARD 

ACKNOWLEDGING RECEIPT 

( 9 . PAGES ) 
Honorable Jerome P. Owens, Judge 

1-A Judicial District Court, Newton County Texas 

203 Courthouse, 2nd. Fl. 

Woodville, Tx. 75979 

C.M.R.R.R.# 7011 0110 0002 1573 0007 

December 10, 2014 

Re: Applicants Motion to Compel Trial Court Judge to Order 

District Clerk to Proc~ss Amended Application for Writ 

of Habeas Corpus Filed July 12, 2012 and Brief In Support 

Trial Court No's 5591, 5593 and 5617 

1-A Judicial District Court, Newton County Texas 

Styled: Ex Parte James Allen Pelloat 

Dear Judge Owens: 

Please find enclosed One original copy of Applicants above entitled 

motion, including his Appendix 1-55 

Please file and bring it to your Courts attention as presented. 

I am also enclosing an extra copy of this letter with a self 

addressed stamped envelope so that you may file mark the same and 

return it to me for my records. 

Thank you in advance for your kind and prompt attention in this 

matter. 

&~-~S?._~ James Allen Pelloat, Applicant pro se 

C.T. Terrell Unit, 1289716 

1300 FM 655 

Rosharon, Tx. 77583 

ENCLOSURES: As set out above 

;~:(j,s~ Post~:n' Service rr.;--~·-·':-.:: ·:·- " -·- ._:,- -- _· ~;··>~ 

:_·ceR:ti~IEt> IVIAILM REQE~P"'t _ ~ _·_ : -___ ; 

_: (!)omestic·Mail Only;Nq lns(!rance.Coveragft Prqvided) :' . 

COPY 

ORIGINAL FILED 

DEC 2 :J 2014 

BREEALLEN 

District Clerk, Newton Co. 
,. ... -.--.:~w--~::""'"-~~-·-,\~·~t:r.""o. 4. ~ ~-...:·.:-~~·-~~-..... ~.::.>""'=-',..._,..~·~"'.--~~~~.:J:>:::;~~Y--·t;:;:o;;::...,..._,_...,_.~-~.,::.:;;,....-..--.:.~-=--··· _ .. ~~_.._...-.,.,==--~--- ·-·~~-"""'"""'"'-' __________ ,~---

HONORABLE JEROME P. OWENS, JUDGE 

1-A JUDICIAL DISTRICT COURT, NEWTON COUNTY TEXAS 

LO~ COURTHOUSE, 2ND. FL. 

WOODVILLE, TX.. 75979 

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3LJ '[)f~C:. ·.=l:i:fl9· .r:!~~i 4~ .t. 

JAMES ALLEN PELLOAT 

C.T. TERRELL UNIT, 1289716 

1300 FM 655 

ROSHARON, TX. 77583 

li!J, "" lilllliJl +iii,, lll'j "'' pjl,i 11 11 11 111 Ji 1ll' ,,lill i 11 

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No.5594 

JAMES ALLEN PELLOAT § IN THE 1-A JUDICIAL DISTRICT 

§ COURT AT 

EX PARTE, APPLICANT § NEWTON COUNTY, TEXAS 

MOTION TO COMPEL TRIAL COURT JUDGE TO ORDER DISTRICT CLERK 

TO PROCESS AMENDED APPLICATION FOR WRIT OF HABEAS CORPUS 

FILED JULY 12, 2012 AND BRIEF IN SUPPORT 

TO THE PRESIDING JUDGt, 1-A JUDICIAL DISTRICT COURT: 

JAMEAS ALLEN PELLOAT, Applicant pro se in the above styled and 

numbered case presents this his first motion to compel Trial Court 

Judge, Honorable Jerome P. Owens to order the District Clerk of 

Newton County, .. Texas to process his Amended Application for Writ 

of Habeas Corpus as required by Tex. Code Crim. Proc. art. 11.07 

that has been filed and pending since July 12, 2012 without due 

process of la~: In support, Applicant will show the.presiding 

Judge good cause as to why his motion and accompanying brief in 

support should be incorporated within that Amended Applicatiqn for 

consideration: 

STATEMENT OF THE CASE 

Applicant was convicted in the above numbered case for felony 

conduct as follows: 

" did then and there, intentionally or knowingiy, while 

an employee of a public secondary school, engage in sexual 

contact with Thomas Kinghton, a person then enrolled in 

the secondary school at which the Defendant worked, and 

Thomas Knighton was not th€ D€f€ndant's spouse" 

Applicant was represented by retained counsel, Honorable 

WilliamS. Morian Jr., a licensed attorney, licensed in this state. 

1. Texas State Constitution, Article One, Section Nineteen 

-1-
The above Application was submitted by Applicant on April 11, 

2011 and filed by the District Clerk, Newton County Texas on April 

2. 

14, 2011, in conformity with TEX. R. APP. P. See TEX. R. APP. P. 73.4 

The record was transmitted to the Court of Criminal Appeals 

and assigned Writ number:;#. 7 5, 934-04 

On June 22, 2011, the Court of Criminal Appeals of Texas 

issued an order (Per curiam) See Appendix at 1-3 that ordered the 

Trial Court to make findings of fa,ct as to whether Applicants · 

counsel was aware that the statute making improper relationship 

between an educator and a student a crime was enacted in 2003 

(Ordering trial counsel to provide an affidavit responding to 

Applicants claim of ineffective assistance of counsel) Appendix at 

p. 2 

On July 29, 2011, retained counsel filed his affidavit See 

Appendix 4-6 and on 9;;:26,;:2011, the Trial Court submitted its finding 

of fact and conclusions of law, recommending that relief be denied 

SeeAppendix at. p. 7-10 

On February 15, 2012, The Court of Criminal Appeals of Texas 

issued another order (Per curiam) ordering: "We have held that the 

State may 'waive an illegal portion of a judgment and maintain the 

remainei\,:Y of the plea agreement'" (Determining that the 

complainant in the 53 case was no longer a student at the school 

where Applica~t taught at the time the statute making improper 

relationship between educator and student an offense was enacted) 

-----------------··-------------------------------------~---~-------

2. The Court of Crimil·al Appeals of Texas consolidated all of Applicants 

Applications into 0t1.e order. 

-2-
The Court of Criminal Appeals of Texas further ordered the 

Trial Court to determine whether the State wishes to accept such a ... ""\ 

.... ~ ' 

modified plea agreement or whether the State wishes to have the 

entire plea undone Appendix at. p. 11-lJ 

On March 8, 2012, the Trial Court issued a Supplemental 

Finding of Fact See Appendix at. ~4, advising the Court of Criminal 

Appeals of Texas that the State accepts the plea agreement as 

modified Appendix at.12 .. (2) 

On July 1.1, .2012, Applicant submit ted his Amendment to Original 

Habeas Corpus See Appendix at 15 - (ND-559ll7A; 5593-A; 5617-A ) 

On October 18, 2012 and on November 12, 2012, Applicant notified 

the District Clerk, Newton County of the disposition of his pending 

Amendemen t to Original Habeas Corpus with no response See Appendix 

at 16-17 (Letters to District· Clerk, Newton County Texas) 

APPLICANTS BRIEF IN SUPPORT OF MOTION TO COMPEL 

Applicant moves this Court take judicial notice of the Clerks 

Record in Writ No's 75,934-01 thru 75,934-04, pursuant to TEX. R. 

EVID. 201 (d) for purposes of this Brief (Memorandum). 

Texas case law cleraly states that in a Writ of Habeas Corpus 

the Applicant is entitled to One (1) Application by which the 

Court of Criminal Appeals will consider, but that in that 

Application, the Applicant must bring to the Court [a]ll issues to 

be resolved as the Applicant can only take one bite of the apple. 

See Ex Parte Kerr, 64 S.W. 3d 414, 419 (Tex. Crim. App. 2002) 

In Applicants Clerks Record transmitted to the Court of 

Criminal Appeals, the District Clerk of Newton County Texas 

-3-
indexed that Application, in particular, BRIEF IN SUPPORT OF 

APPLICATION FOR WRIT OF HABEAS CORPUS See CLERKS Index at 13-77 

This Brief in support brought to the attention of the Trial 

Court and the Court of Criminal Appeals that Applicants plea was 

involun·tarty C.R. at 29-34 and that his counsel was ineffective 

C.R. at 34-39 

Applicant stated that but for counsel~b~ing~ineffective he 

would not have accepted the plea and taken the cases to trial. 

C.R. 32 (But for counsels errors, he would not have pleaded 

guilty and would have insisted on going to trial) 

CAUSE AND PREJUDICE 

Applicant contends that counsel was ineffective pecause he 

did not know the law that was in effect and that because he failed 

to investigate caused him to be convicted, caused him to accept 

the plea. 

LAFLER V. COOPER, 132 S.CT. 1376 (2012) 

Lafler v. Cooper, 132 S.Ct. 1376 (2012) was argued before the 

United States Supreme Court on October 31, 2011 and decided on 

March 21, 2012 See Appendix at:18-41in that a Defendants are entitled 

to effective assistance of counsel during the plea bargain process 

citing Strickland v. Washington, 104 S.Ct. 2052 (1984) 

Just before Lafler v. Cooper_was decided, the Court of 

Criminal Appeals decided Ex Parte Moussazadeh, 361 S.W. 3d 684 (Tex. Grim.· 

App. 2012) 

In Moussazadeh, the Court held that counsel was ineffective 

because he did not know the parole law that was in effect for 

-4-
purposes of the plea bargain agreement See Appendix at 42-52, 

Applicant stated that "But for the erroneous advise of counsel, 

the Applicant would not have pled guilty Slip Opinion at 8. 

Appendix at 49, The Court further stated that "Both failure to 

provide correct information and providing incorrect information 

violated that duty" (Assistance of counsel) Slip Opinion at 9, 

Appendix at 50 

Moussazadeh was decided February 15, 2012 in which JOHNSON J. 

delivered the opinion of the Court at which PRI~E, WOMACK, KEASLER 

HERVEY, COCHRAN and ALCALA JJ. joined. KELLER P.J. filed a 

concurring opinion, Meyers J. did not participate. Slip Opinion 

at 1, Appendix at 42 

This Court issued its order by which it ordered the Trial 

Court to determine whether the State wishes to accept such a 

modified plea agreement or whether the State wishes to have the 

entire plea undone Appendix at ·12 ~ 2 

L'De~piite Applicants assertions that but for counsels errors, he 

would not have accepted the plea of guilt and gone to trial.C.R. 

29-34; C.R. 34-39 

Both Moussazadeh and Applicants order were issued on February 

15, 2012 and Applicant might have benefitted from that opinion but 

for some reason, that opinion wa~ withh~ld. 

Applicant claims that after the Trial Courts Supplemental 

Findings of Fact of March 8, 2012, he did not hear ba~k from the 

Trial Court or the Court of Criminal Appeals insofar as a final 

-5-
opinion or a mandate from the Court of Criminal Appeals, thus, he 

filed his Amendments to the Original Habeas Corpus. 

If Applicant is only entitled to one bite of the apple and 

the Court of Criminal Appeals found that Applicant was entitled to 

relief, but not enough relief to be consistent with the holding in 

Lafler v. Cooper or the holding in Ex Parte Moussazadeh, despite 

the fact that both cases reached the same conclusion that counsels 

advise was bad and that such bad counsel violated his right under 

the Sixth Amendment, both were entitled to relief. 

This Court must bear in mind that Applicant made his claim 

prior to th~ decisions in Lafler v. Cooper and Ex Parte Moussazadeh 

and therefore should be entitled to the same consideration. 

No-one can:1l<Dok in to the mind of the Applicant, except the 

Applicant by which he clearly stated that he would have taken his 

cases to trial.· 

CONCLUSION 

The District Clerk of Newton County Texas has a duty to file 

and bring the Applications for Writ of Habeas Corpus to the Courts 

attention and that of the counsel for the State of Texas but has 

not done so. 

Applicant moves this Court order the Applications, Amended as 

they may be processed as a matter of law or returned for non ~o 

compliance, bearing in mind that Applicant has never received a 

final decision from this Court or the Court of Criminal Appeals in 

his Applications. 

In any event, this :Court must so order. 

-6-
In conclusion, the Trial Court, the Presiding Judge of 'the 

Trial Court should so order the District Clerk to process' the 

Amended Habeas Corpus as presented. 

"' 

PRAYER 

WHEREFORE PREMISES CQNSIDERED, Applicant prays this Court 

order the Disteict Clerk of Newton County; Texas to proc~ss his 

Amended Habeas Corpus as presented, or as a alternative order a 

hearing with Applicant prese~t so that he may articulate what 

constitutional violations have been done in these applications. 

Respectfully Submitted, 

~~~@~ 

-~~---------------------~---

James Allen Pelloat, Applicant pro se 

C.T. Terrell Unit, 12&9716 

1300 FM 655 

Rosharon, Tx. 77583 

-7-
EXHIBIT-2 

APRIL 13, 2015 LETTER TO JUDGE OWENS ( RESPONDENT) 

GREEN CARD ACKNOWLEDGING RECEIPT 

( 2 PAGES ) 

! 
Honorable Jerome P. Owens, Judge 

1-A Judicial District Court, Newton County Texas 

203 Courthouse, 2nd. Floor 

Woodville, Tx. 75979 

C.M.R.R.R.# 7013 2630 0001 1653 0158 

District Attorneys Office 

P.O. Drawer 36 

Newton , Texas 75966 

April 13, 2015 

Re: Request for Ruling on Applicants Motion to Compel Trial Court 

Judge to Order District Clerk to Process Amended Application for 

Writ of Habeas Corpus Filed July 12, 2012 and Brief in Su~port 

Trial Court No's 5591; 5593; 5617 

Trial Court No. 1-A Judicial District, Newton County Texas. 

Styled: Ex Parte James Allen Pelloat 

Dear Judge Owens: 

On December 10, 2014, I served you with a copy of the above by 

Certified Mail, Return Receipt Requested # 7011 0110 0002 1573 0007 

and requested that you file mark in your Court and issue a ruling 

as presented. 

On approximately December 31, 2014, the copy of the letter was 

returned file marked December 29, 2014. 

Your Honor, It has been well over 90 days since the above pleadings 

have been pending in your Court. 90 days is considered to be a 

reasonable amount of time for your Court to consider and iisue a 

ruling. The ruling in question is merely that pursuant to the 

statutory provisions of TEX. CODE CRIM. PROC. art,.11.07 that the 

District Clerk file and present to the District Attorney for their 

response as well as you, the presiding judge to order the writ to 

be transmitted to the Court of Criminal Appeals. 

By receipt I am going to wait 10 days before I seek Mandamus in the 

Court of Criminal Appeals in this matter. Please exercise your 

authority and order the District Clerk to begin the process as a 

matter of law. 

Thank you in advance for your kind and prompt attention in this 

~~-~-§~~-- James Allen.Pelloat, Applicant pro se 

C.T. Terrell Unit, 1289716 

1300 FM 655 

Rosharon, Tx. 77583 
UNITED STATES POSTAL SERVICE IIIII First-Class Mail 

Postage & Fees Paid 

USPS 

Permit No. G-10 

• Sender: Please print your name, address, and ZIP+4® in this box• 

JAMES ALLEN PELLOAT 

C. T. TERRELL UNIT, 1289716 ~ 

1300 FM 655 ~'\/ ROSHARON, TX. 77583 \ 

i 

!J 

/}. • Complete ite.Ji1[';_:.:2i':a.nd 3. Also complete 

, item· 4 if Resfrimed Delivery is desired. l- • Print your name and adafess on the reverse 

( , so that we can return the card to you. 

\-.· Ill Attach this card to the back of the mailpiece, 

-~ or on the front if space permits. 

1. Article Addressed to: 

HONORABLE J lliONE P. OWENS , JUDGE 

1-A JUDICIAL DISTRICT COUR"i' 

NEWi'ON COUNTY TEXAS 

\ 203 COUR'l'HOUSE, 2 ND. flDOR 

WOODVILLE, TX. 75979 

0 Yes 

If YES, enter delivery address below: D No 

3. Service Type 

§Certified Mail® 

D Registered 

0 Insured Mail 

0 Priority Mail ExpressN 

~ Return Receipt for Merchandise 

0 Collect on 

2. Article 

_ (Transfer from serj_(ce labeO 7013 2630 0001 1653 0158 

PS F"c\rm 3811 , July 2013 ·Domestic Return Receipt 
EXHIBIT-3 

LETTER TO TEXAS STATE LAW LIBRARY; RESPONSE AND INDEX OF 

APPLICATIONS 

( 3 PAGES ) 
Librarian 

Texas State Law Library 

P.O. Box 12367 

Austin, Tx. 78711 

December 9, 2014 

Re: Cost for Disposed Applications for Writ of Habeas Corpus 

Writ # 75,934-01 thru 75,934-04 

Trial Court No's 5591, 5593, 5594 and 5617 

1-A Judicial District Court, N~wton County Texas 

··-~· .. Styled: Ex Parte James Allen :PeJJqat. · 

Dear Librarian, Texas State Law Library: 

By return mail, please advise me of the exact cost for the above 

disposed Applications for Writ of Habeas Corpus 

Tank you in advance for }o"ur'.~ind and prompt attention in my request 

for costs. 

Q~~e~ 

-~--------------------- James ~.tl~.n. PP~!~oat, Applicant/Requester C.T. Te;r~ll·Un~t, 1289716 

1300 fi'M 655 .. E-o.sh-aro·n~· Tx. 77583 
r 

TEXAS STATE LAW LIBRARY 

P.O. BOX 12367 

AUSTIN, TEXAS 78711-2367 

RE: Requesting writ applications for WR-75,934-01 through -04 

James Pelloat (#1289716) 

Boyd Unit (051) 

Teague, TX 75860-2007 

Dear Mr. Pelloat, 

PELLOAT, JAMES 

6 January 2015 

Thank you for contacting the Texas State Law Library. We received your request on 12 December 2014. 

Enclosed you will find an estimate for your document delivery request. We are returning the stamps you 

enclosed with your letter. We do not accept stamps as payment for requests. 

Sincerely, 

State Law Library Reference Staff 
PELLOAT, JAMES 

STATE LAW LIBRARY 

P.O. BOX 12367 

AUSTIN, TEXAS 78711·2367 

To: James Pelloat #1289716 

From: Inmate Copy Service Staff 

Re: Cost of your request (#7298) for copies received December 12, 2014 

Estimate #4120 dated January 6, 2015 

Document Requested 

; Court of Criminal Appeals --· -" - -~ . - --- - -

. WR-75,934-01 PELLOAT, JAMES ALLEN- WRIT RECEIVED 

; •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11 

•BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· 

CORPUS, FILED 4/14111 

Court of Criminal Appeals ···- - -- -·- ---- .. ----- ··-· ---·-··· 

. ... \\'_R-7_5,934-02 PELLOA!., JAMES ALLEN- WRIT_RECEIVED 

• , •APPLICATION FOR WRIT OF HABEAS CORPUS, FILED 4/14/11 

•BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS 

CORPUS, FILED 4114/11 

· Court of Criminal Appeals 

#of Pages 

.. 

12 Pages 

65 Pages 

.. ... 

12 Pages ... 

65 Pages 

··-- . . . ... -- ---···· -- -- -·-- ····-··· 

'WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED ·- --- ---· . - ... --------- .. -- ---·- ·-- - .. -- •APPLICATION FOR WRIT OF HABEAS CORPUS SEEKING 

. RELIEF FROM FINAL FELONY CONVICTION UNDER CODE 

. OF CRIMINAL PROCEDURE, ARTICLE 11.07 

•BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· 

'CORPUS (FILED 4/14/11) 

Court of Criminal Appeals 

· WR-75,934-04 PELLOAT, JAMES ALLEN- WRIT RECEIVED - .. - -- .. . - .... - . 

12 Pages 

65 Pages 

Cost 

-

.. -- --~- --

$3.00 

$16.25 

-

$3.00 

$16.25 

$3.00 

$16.25 

•APPLICATION FOR WRIT OF HABEAS CORPUS SEEKJNG 

RELIEF FROM FINAL FELONY CONVICTION UNDER CODE 

OF CRIMINAL PROCEDURE, ARTICLE 11.07 

12 Pages ' $3.00 

Check to order .. 

' D 

D 

D 

D 

D 

D ·~~~~~~~-~---=---~-~---~-~~~~~~~~~~~~-+-~--~--t~~~--~~~~~~~~ 

•BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS· 65 Pages $16.25 0 

CORPUS {FILED 4/14111) -----

Totalp<:_ges:j 308 i 

Total cost:: $77.00 •• -- -- j 

Tax (8.25%): $6.35 

Service Charge: $5.00 

ORDER TOTAL: $88.35 

James Pelloat Estimate #4120-6 Jan 2015 $88.35 
EXHIBIT-4 

LETTER FROM TEXAS STATE LAW LIBRARY, DATED MAY 27, 2015 

·INDEX FOR AP. 76,779 

( 4 PAGES ) 
RE: AP-76,779: entire file 

James Pelloat (#1289716) 

Terrell Unit (027) 

Rosharon, TX 77583 

Dear Mr. Pelloat, 

TEXAS STATE LAW LIBRARY 

P.O. BOX 12367 

AUSTIN, TEXAS 78711-2367 

PELLOAT, JAMES 

27 May 2015 

Thank you for contacting the Texas State Law Library. We received your request on 23 April 2015. 

Enclosed is an estimate for the requested case file, held at the Court of Criminal Appeals. 

Please note that this estimate includes documents from not only #AP-76,779, but also documents from 

when it existed as a writ file, before it was file and set by the Court of Criminal Appeals, #WR-75,934-

03. 

Sincerely, 

State Law Library Reference Staff 
PELLOAT, JAMES 

To: James Allen Pelloat #1289716 

From: Inmate Copy Service Staff 

STATE LAW LIBRARY 

P.O. BOX 12367 

AUSTIN, TEXAS 78711-2367 

Re: Cost of your request (#7786) for copies received April 23, 2015 

Estimate #4467 dated May 19, 2015 

order 

---- Document Requested I # of Pages :/ 

AP-76,779 PELLOAT, JAMES ALLEN- NOTICE RETURNED 

I Pages 

·~=---=--:-:· DISTRICT COURT PRESIDING JUDGE WHITE CARD RETURNED, NOT DELIVERABLE AS ADDRESSED, 

» DATED 5/2/2012 ""I D . Court of Criminal Appeals - -----·-----------'1.------'--- -----~ 

l-~.:..::_76,:79 PELLOA_T, JAMES AL~EN -I\1AN~-~~E IS_~-~~~---------·---------------·i---·-·--l=-... -:~-·---=l < » COURT OF CRIMINAL APPEALS: fviANDATE, SIGNED 5/21/2012 (COPY) 1 I Pag~s l $0.25 D » NEWTON COUNTY -MANDATE RECEIPT ACKNOWLEDGMENT ;I I Pages ~is_t_=:cJ--il 

Court of Criminal Appeals 

1-A_P,_-7_6_,7_7_9 _PE_• L_L_O_A_T_,_.J_A_M_E_S_A_L_L_E_N'--' _-o_PI_N_'I_O_N_I_ss_u_E_• D---·-------------·--: .•. r 

2 

p=c= ... ~:=-o-:.!. » COURT OF CRIMINAL APPEALS: OPINION -RELIEF IS GRANTED, Df\TED 04/25/2012 _ ~~-L 

Cour·t of Criminal Appeals 

WR-75,934-03 PELLOAT, JAMES ALLEN- WRIT RECEIVED • __ : j 

» ACTION TAKEN- REMANDED FOR AN EVIDENTIARY HEARING/AFFIDAVITS, SIGNED 6/22/2011 I Pages • ,-~ $o.2s . 0 , » TRIAL CLERK'S COVER SHEET 

-----------------------------------------------------------------~----

I Pages • $0.25 '. 0: 

)) INDEX I Pages $0.25 :I D j 

' » APPLICATION FOR A WRIT OF HABEAS CORPUS, FILED 4/14/2011 

» BRIEF IN SUPPORT OF APPLICATION FOR WRIT OF HABEAS CORPUS 

12 Pages $3.00 -~-

65 Pages $!6.2s • 0 : » RECEIPT FROM CRIMINAL DISTRICT ATTORNEY 

» INDICTMENT 

I Pages $0.25 D : 

t-· D I Pages $0.25 

» JUDGMENT OF CONVICTION BY COURT 3 Pages $0.75 D ' 

3 Pages $0.75 ' D 

2 Pages . $0.50 ·, D i 

··~--------------------~------~-------------------------------~·r------ , » MOTION & ORDER NUNC PRO TUNC , 

·~-------------------------------------------------------------------~----- )) CLERK'S CERTIFICATE 

Court of Criminal Appeals 1 ·~-------------------------------------------------------------------~------'r-----~----~1 WR-75,934-03 PELLOAT, JAMES ALLEN- SUPP_CLERK RECORD : ,, ______________________________ ~-------t-------J--~~--:1 

»TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 1117/2011 r I Pages $0.25 'D , » INDEX I Pages 

>> LETTER FROM JUDGE OWENS TO DISTRICT CLERK RE TRANSMISSION OF SUPPLEMENTAL RECORD ' I Pages 

: >> LETTER FROM COURT REPORTER TO JUDGE OWENS RE: ORIGINAL REPORTER'S RECORD ENCLOSED I Pages 

$0.25 D '

i 

' r----'r-.....:::=:::---.1 $0.25 , 0 , 

$0.25 0 >> REPORTER'S RECORD OF PLEA , 9 Pages ' $2.25 ' D ~--------------------------------------------------------------------------·'l--------t-----~t---==---.1 

>> CLERK'S CERTIFICATE I Pages $0.25 D i ------·----------------------------------------------,.IJ..i --------'--------''-----.' : Court of Criminal Appeals , 

• )) ACTION TAKEN- REMANDED FOR AN EVIDENTIARY-I·-IE_A_R_IN_G_/A-F-FID_A_V_I_TS,-~-:G_N_E--D-I-1-/2-/2-0-Il------"I--,-P-ag_e_s_. $0.25 r-~ 

1-\-V~R~-7~5~,9~3~4-~0-'-3 -'-P=E~L""'L~O-'-A~T-'-, J-A'-"M~E-S~A-L-L'-'E~N~' ~-S-U---P.-P~R"-E-C-'-D·-'-'-~-.--~--·---:--------~--~--·--~·f"~· -'-'---..,..F c::= 

>> :r~~L.~~~~~·s C.?~E-~ ~~~.~.!- S~PPL~r:t~~!.~_L !R~NS_CRIPT, RECE!VED I 017/~-0·-, -, ------.-_ -. ---_-.~-. -~-:-a-~e-:-.. · .. $0.25 . t ... 0.- .. j 
,--·-----~---------------~-----------""---------.... --------------------------.. ---------------------------------------------------~-- ---- - -----,---- --~-

» INDEX · . I Pages 1 $0 25 • D I )) INDICTMENT 

·-·-·-------··-----------'------r:::-:-- -

·--------------·----- I Pog"' -~r-.[L_ » WRITTEN PLEA ADMONISHMENTS ' 6 Pages $1 50 , D » GUlL TY PLEA MEMORANDUM 3 Pages ·j $0.75 D I 

» JUDGMENT OF CONVICTION BY COURT i 3 Pnges $0.75 D >> MOTION & ORDER NUNC PRO TUNC 3 Pages $0.75 i D I 

- >> AFFIDAVIT OF WILLIAM S MORlAN, JR 3 Pages $0.75 ' D --·· >>AFFIDAVIT OF ROBERT J CHOATE : 2 Pages $0.50 D - >> FINDINGS OF FACT AND CONCLUSIONS OF LAW- COURT RECOMMENDS RELIEF BE DENIED, 9/26/2011 : 4 Pages 'I $100 ! D 

>>CLERK'S CERTIFICATE I Pages $0.25 ' D - Court of Criminal Appeals 

WR-75,934-03 l'ELLOAT, JAMES ALLEN- STATUS (INMATE CORRESPONDENCE) 

:1 2 Pages I [ - >>LETTER FROM INMATE ARMSTRONG RE: CASE STATUS, DATED 1/26/2012 $0.50 D · Court of Criminal Appeals 

WR-75,934-03 PELLOAT, JAMES ALLEN- ORDER ISSUED l I 

- COURT OF CRIMINAL APPEALS: ORDER- APPLICATION WILL BE HELD IN ABEYANCE UNTIL THE 3 Pages $0.75 i 

>>TRIAL COURT HAS RESOLVED THE FACT ISSUES, FILED 6/22/2011 D l i -----·---------·-- Court of Criminal Appeals 

WR-75,934-03 PELLOAT, JAMES ALLEN- 2ND SUPPLEMENTAL WRIT 

r >>ACTION 

>>TRIAL CLERK'S 

TAKENCOVER REMANDED 

SHEETFOR SUPPLEMENTAL 

AN EVIDENTIARY 

TRANSCRIPTS, 

HEARING/AFFIDAVITS, 

RECEIVED 12/27/2011 

SIGNED 2115/2012 

~~Rf= 1 I Pages 1 $0.25 · 0 ~~---------------------- -· _\ ....... ·--···-···! ...... , ..... -!·· · .................... .... --~~- ········--- -··----~ .. ·····-'''"'"'"'''· ··········-·-·-···------·-"····-··· ·····---~---------------------------- ········- ... ----

~»SUPPLEMENTAL FINDINGS OF FACT 

>> CLERK'S CERTIFICATE 

Court of Criminal Appeals 

WR-75,934-03 PEL LOA T, JAMES ALLEN- 3RD SUPPLEMENTAL WRIT 

»ACTION TAKEN- FILED & SET/GRANTED, SIGNED 4/25/2012 

» TRIAL CLERK'S COVER SHEET- SUPPLEMENTAL TRANSCRIPT, RECEIVED 3/19/2012 

»INDEX 

»CAPTION 

» ELECTION BY THE CRIMINAL DISTRICT ATTORNEY 

»SUPPLEMENTAL FINDINGS OF FACT 

>> CLERK'S CERTIFICATE 

I 07 Pages 1 

I Pages 1 

1 Pages $0.25 

l Pages $0.25 

I Pages $0.25 

l Pages $0.25 i 

l Pages $0.25 

I Pages $0.25 

l Pages $0.25 

Total pages: i 

Total cost: 1 

Tax (8.25%): • 

-- Service Charge: : 

ORDER TOTAL:; 

D 

o 

D 

D 

D 

D 

D 

D 

D 

260 

$65.00 

$5.36 

$5.00 

$75.36 

Note: To request specific documents plense only check the items desired and resubmit this form so that the Document Delivery Service may 

recalculate the copy job cost and supply you with a revised estimate and order form. If you wish to order all the documents listed above, please 

check below and return 1 copy of th1s form and payment for the total amount above to order copies. 

Notice: Warning Concerning Copyright Restrictions 

The copyright law of the United States (title 17, United States Code) governs the making of photocopies or other reproductions of copyrighted 

material. Under certain conditions specified in the law, libraries and archives are authorized to furnish a photocopy or other reproduction. One of 

these specified conditions is that the photocopy or reproduction is not to be "(rsed for any purpose other than private study, scholarship, or research." If a user makes a request for, or later uses, a photocopy or reproduction for purposes in excess of "fair use," that user may be liable for 

copyright infringement. This institution resenres the right to refuse to accept a copying order if, in its judgment, fulfillment of the order would 

involve violation of copyright law. 

0 CHECK HERE TO ORDER ALL ITEMS LISTED ABOVE . 

Please make cashier check, money order or inmate tt·ust fund checl{ payable to State Law Library. Copy job turn-around depends on the size of your request, the number of requests being filled and staff time. The State Law Library staff does its best to fill orders as quiclcly as possible. Staff will begin copying your documents once payment is received. 

THE STATE LAW LIBRARY WILL NOT ACCEPT AN AMOUNT OTHER THAN THE AMOUNT QUOTED FOR PAYMENT. IF YOU . MAKE CHANGES TO THE ESTIMATE, PLEASE SEND THOSE CHANGES TO THE STATE LAW LIBRARY AND WE WILL SEND 

YOU A NEW ESTIMATE. PAYMENTS RECEIVED THAT ARE NOT IN THE AMOUNT QUOTED WILL BE RETURNED. 
ESTIMATES ARE VALID FORgo DAYS AFTER THE DATE ISSUED. 

COURT RECORDS ARE SUBJECf TO THE AVAILABILITY PROVIDED BY THE COURTS. 

Please rello·n this entire sheet with uow• request! 

- UNIT/ ADDRESS COPIESARETO BE_ SENT TO: 

James Allen Pelloat- #1289716 

Terrell Unit (027) 

1300 FM 6ss 1 

Rosharon, TX7?58~ 

PAYMENT 

0 Cashier's Check 

0 Money Order 

0 Inmate Trust Fund Check 

Payment Due: $75.36 

Send payment and this fo1·m to: 

STATE LAW LIBRARY 

DOCUMENT DELIVERY 

PO BOX 12367 

AUSTIN, TX 78711-2367. · 

James Pelloat Estimate #4467-19 May 2015 $75.36 
APPENDIX PAGE 

COURT OF CRIMINAL APPEALS ORDER.OF JUNE 22, 2011 1- 3 

RETAINED COUNSELS AFFIDAVIT 

TRIAL COURTS FINDINGS OF .FACT 

COURT OF CRIMINAL APPEALS ORDER.OF FEBRAUARY 15, 2012 

TRIAL COURTS SUPPLEMENTAL FINDINGS OF FACT 

APPLICANTS SUBMITTED AMENDMENTS TOORIGINAL 

HABEAS CORPUS APPLICATIONS 

APPLICANTS LETTERS TO DISTRICT CLERK 

Lafler v. Cooper, 132 S.Ct. 1376 {2012) 

Ex Parte Moussazadeh, 361 S.W. 3d 684 (2012) 

4- 6 

7- 10 

11-12 

13 

14-16 

. 17-18 

19-42 

43-53 
COURT OF CRIMINAL APPEALS ORDER DF JUNE Z2, 2011 

( 3 PAGES ) 
IN THE COURT OF CRIMINAL APPEALS 

OF TEXAS 

NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04 

EX PARTE JAMES ALLEN PELLOAT, Applicant 

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS 

CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT COURT 

FROM NEWTON COUNTY 

Per curiam. 

ORDER 

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the 

clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte 

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant entered into a plea agreement 

whereby he pleaded guilty to two charges of sexual assault of a child, and two charges of improper 

· relationship between an educator and a student. He was sentenced to twenty years' imprisonment 

for each charge, with the sentences in two of the four charges running consecutively, and the other 

two sentences running concurrently. He did not appeal his convictions. 

Applicant contends, inter alia, that the trial court lacked jurisdiction to entertain the plea 

I 
2 

agreement, that his pleas were not knowingly and voluntarily entered, and that his trial counsel 

rendered ineffective assistance because he failed to investigate and discover that one of the offenses 

to which Applicant pleaded guilty was not a separate crime at the time it was alleged to have been 

committed. 

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 

4G6 U.S. 608 (i984), Expune Lernke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). in these 

circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 

(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court 

shall order Applicant's trial counsel to provide an affidavit responding to Applicant's claim of 

ineffective assistance of counsel. The trial court may use any means set out in TEX. CODE CRIM. 

PROC. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. 

I d. 

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If 

Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an 

attorney to represent Applicant at the hearing. TEX. CODE CRIM. PROC. art. 26.04. 

The trial court shall make findings offact as to whether Applicant's trial attorney was aware 

that the statute making an improper relationship between an educator and a student a crime was 

enacted in 2003. If counsel was aware of this fact, the trial court shall make findings as to why 

counsel allowed Applicant to plead guilty to the offense in cause number 5594, which was alleged 

to have been committed in 2001, prior to the effective date of Texas Penal Code §21.12. The trial 

court shall make findings as to whether the performance of Applicant's trial attorney was deficient 

and, if so, whether counsel's deficient performance prejudiced Applicant. The trial court shall also 
3 

make any other findings of fact and conclusions of law that it deems relevant and appropriate to the 

disposition of Applicant's claim for habeas corpus relief. 

This application will be held in abeyance until the trial court has resolved the fact issues. The 

issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the 

order granting the continuance shall be sent to this Court. A supplemental transcript containing all 

affidavit~ and interrogatories or the transcription of the court reporter's notes from any hcEring or 

deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall 

be returned to this Court within 120 days of the date of this order. Any extensions of time shall be 

obtained from this Court. 

Filed: June 22, 2011 

Do not publish 

' ~ .

3 
RETAINED COUNSELS AFFIDAVIT 

( 3 PAGES ) 
IN THE COUR OF CRIMINAL APPEAL 

OF TEXAS 

============ 

NOS. WR-75,934-01, WR-75-934-02, WR-75-934-03 & WR-75-934-04 

=====;:========= 

EX PARTE JAMES ALLEN PELLOAT, Applicant 

=============================· =··===-================== 

ON APPLICATIONS FOR R!TS OF HABE_4.S COF.J>TJS 

CAUSE NOS. 5591,5593,5617 & 5594 IN THE 1-A JUDICIAL DISTRICT 

COURT FROM NEWTON COUNTY 

AFFIDAVIT OF WILLIAM S. MORlAN, JR. 

BEFORE ME, the undersigned authority, on this day personally appeared 

WilliamS. Morian, Jr., who being by me duly sworn under oath and affirmed as 

follows: 

"My name is WilliamS. Morian, Jr. As counsel for the Defendant, James 

Allen Pelloat, in each of the cases the subject of this Writ of Habeas Corpus, I 

advised my client of all legal aspects in these cases including the elements of each 

one of the· crimes needed to be proven by the State beyond a reasonable doubt as 

well as the range of punishment for each of the alleged crimes. I also discussed 

with Mr. Pelloat the possibility of the convictions running consecutively in the 

event that he was found guilty on those charges. 

Lf 
"In Cause Nos. 5618 and 5594 involving improper relationship between an 

educator and a student under Section 21.12 of the Texas Penal Code, the dates of 

the offenses set forth in the indictments are obviously prior to the enactment date 

of Texas Penal Code Section 21.12. I do not have any independent recollection of 

any discussions with Mr. Pelloat about the enactment and effective date of Texas 

Penal Code Section 21.12. However, I did advised Mr. Pelloat that the exact date 

of the alleged offense did not have to be proven specifically as long it was proven 

that the alleged act occurred within the statute of limitations for the particular 

offense and before the date of the indictment. The statements of the victims were 

reviewed with Mr. Pelloat as was all other evidence. Specifically, the statement of 

Thomas Knighton which pertains to Cause No. 5594 stated that the last occurrence 

that involved him and Mr. Pelloat was on October 31, 2004, which would have 

been after the date of the enactment or affective date of Section 21.12 of the Texas 

Penal Code. 

"Based on all evidence available to Mr. Pelloat and myself including the 

statements of all victims and Mr. Pelloat's confession, the decision was made by 

Mr. Pelloat with my advice to accept the plea offer in order to avoid the potential 

of a much more lengthy prrsun sentence if he were convicted on the charges and 

all sentences ordered to be run consecutively. If the charges under Section 21.12 

of the Texas Penal Code were not prosecuted, I believe Mr. Pelloat would have 

still faced more than forty years if he were convicted and the sentences were 

ordered to run consecutively." 

2 
.- ·,. 

SUBSCRIBED AND SWORN TO before me by WilliamS. Morian, Jr., on 

this the 29th day of July, 2011. 

3 
TRIAL COURTS FINDINGS OF FACT 

( 4 PAGES ) 
===================== 

EX PARTE JAMES ALLEN PELLOAT, Applicant 

================================================== 

ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

CAUSE NOS. NO 5591, 5593, 5617 & 55941N THE lA JUDICIAL DISTRICT COURT 

FROM NEWTON COUNTY 

=================================================== 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Applicant filed an application for post conviction writ of habeas corpus. This Court is bf the 

opinion that a hearing is not necessary and chooses to rely on affidavits and hereby entJrs the 

following Findings of Fact and Conclusions of Law. 

I. FINDINGS OF FACT 

1. Applicant was indicted for six felony offenses: 

Cause Number 5591-lmproper Relationship Between Educator and Student I 

6aus.e.J'wmbe r -559.2 .-::.Aggr-avated -Sexoat~-ss·acrtt 

Cause Number 5593- Sexuai,Assault ' . 

Cause Number 5594 -Improper Relationship Between Educator and Student 0 

Cause Number 5617- Sex~.al Assault 1 

I 

Cause-Number-s-6-18--tmp-nrp·eTRelation-shlp-Between-Educatorcmu-stud~t. I 

2. Applicant entered into a plea bargain with the State and plead guilty to the following 

I 

charges: \ 

I 

Cause Number 5591-lmproper Relationship Between Educator and Student I 

7 
Cause Number 5593 -Sexual Assault 

Cause Number 5594 -Improper Relationship Between Educator and Student 

Cause Number 5617- Sexual Assault. 

3. Cause numbers 5592 and 5618 were both dismissed. 

4. Applicant was sentenced to twenty (20) years confinement on all four cases. I 

5. Cause number 5617 (Sexual Assault) was to run consecutive to the sentence in I cause 

number 5593 {Sexual Assault). All other sentences would run concurrently. 

6. The indictment in cause number 5594 alleged an offense date of November 7, 2001, 

which was prior to the enactment of the "Improper Relationship" statute. (Penal Code 

Section 21.12). 

7. The date of offense reflected in the judgment and sentence in cause number 5594 was 

November 7, 2004. This date coincides with the offense dates alleged in cause nulnbers 

5591 and 5593, which is after the enactment of Penal Code Section 21.12. 

8. Evidence was provided Applicant's trial counsel pursuant to his motion for discovery, 

which included the victim's statement, Applicant's statement as well as other evidence, 

i 

that indicated the conduct constituting the offense alleged in cause numbei 1 5594 

continued until the time immediately prior to Applicant's arrest in 2004, aftJr the 

enactment of Penal Code Section 21.12. 

1 9. Applicant's trial counsel advised Applicant of all legal aspects in these cases including 

the elements of each one of the crimes needed to be proven by the State beyond a 

reasonable doubt as well as the range of punishment for each of the alleged crimes. 
I 

I 

I 

10. Applicant's trial counsel advised Applicant of the possibility of the convictions run~ing I 

I 

consecutively in the event that he was found guilty. 1 

11. Applicant's tria I counsel advised Applicant that the exact date of the alleged offenle did 

I 

not have to be proven specifically as long as it was proven that the alleged act occLrred 

within the statute of limitations for the particular offense and before the date of the 

indictment. 1 

12. Applicant's trial counsel was aware of the effective date of the statute making an I 

improper relationship between an educator and student a crime. 

13. Applicant's trial counsel allowed Applicant to plead guilty to the offense in cause 

I 

number 5594 because there was evidence that the prohibited conduct continued until 

2004 and would have constituted an offense after the effective date of Texas Penal 

Code section 21.12. 

14. Applicant's trial counsel further allowed Applicant to plead guilty to that offense 

because he believed he (Applicant) would have potentially received a much more 

lengthy prison sentence if convicted on all charges. · 

15. The sentence in cause number 5594 runs concurrent with other sentences impos.l and 

therefore does not affect the amount of time Applicant will have to serve. 

II. CONCLUSIONS OF LAW 

1. Applicant's plea was entered knowingly and voluntarily. 

2. Applicant's trial counsel's conduct was not deficient conduct that fell below the 

standards of performance required of counsel in criminal cases. 

3. Applicant's trial counsel did not render ineffective assistance of counsel. 

9 
i 

I 

I 

4. Applicant has failed to meet his burden of proof by a preponderance of the eviderice. 

i 

5. Applicant is not entitled to the relief requested in his Application for Writ of Habe~s 

Corpus. I 

Having considered the evidence as set forth before this Court and in light of the foreg6ing 

I 

Findings of Fact and Conclusions of law, it is the opinion of this Court that the relief prayed for 

in this case be DENIED. I 

I 

;t is further ORDERED that copies of this document be served on the Applicant and coJnsel 

' 

for the State. 

Signed and entered on this ~day of~~ ,2011. 

NEWTON COUNTY, TEXAS 
COURT OF CRIMINAL APPEALS ORDER"OF FEBRUARY 15, 2012 

(2.. PAGES ) 
.·,' -;; 

' 

IN THE COURT OF CRIMINAL APPEALS 

OF. TEXAS·· 

NO. AP-76,779 · 

EX PARTE J;\MES ALLEN PELLOAT, Applicant 

.... · ONAP~L~CATION }fOR WRIT OF HABEAS CORPUS· 

. CAUSE NO. 5594 IN THE JUDICIAL DISTRICT COURT lA 

FROM NEWTON COUNTY 

Per curiam. 

OPINION 

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the 

;6Ierk of the tri~ court transmitted to this Court this application for writ of habeas corpus. Ex parte 

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty pursuant to a 

"package" plea agreement to two charges of sexual assa~lt of a child, and two charges of improper 

relationship between educator and student. Pursuant to the plea agreement, Applicant was sentenced 

to twenty years' imprisonment for each offense, 'With the sentences in cause riumbers 5992 and 5617 

to run consecutively, and the remaining sentences to run concurrently. He did not appeal his 

convictions. 

,•.;' 

--

.. 

\\ 
,. I 

I?. 

2 

Applicant contends, inter alia, that his plea was involuntary because trial counsel failed to 

advise him that one of the charges was not an offense at the. time it was committed. We remanded 

this application to the trial court for findings &f~ct and conclusions of law, 

Trial counsel and the trial prosecutor filed affidavits with the trial court. Based on those 

affidavits and the documents in the supplemental record, the trial court has-determined that the 

complainant in the .,.03 case was no longer a student at the school whereApplicant taught at the time 

the statute making improper relationship between educator and student an offense was enacted. 

Applicant is entitled to relief. Exparte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985). 

Relief is granted. The judgment in Ca~~-~A~ in the Judicial District Court 1 A of 

'\. ·- ~-~ ·,··. ·. . Newton County is set aside. The remainder of the judgments and sentences stand pursuant to the 

plea agreement. ./ 

I 

. I 

Copies of this opinion shall be sent to the Te~as Department ofCtiminal Justice-Correctional 

Institutions Division and Pardons and Paroles Division. 

Delivered: April25, 2012 

Do Not Publish 

l) 
TRIAL COURTS SUPPLEMENTAL FINDINGS OF FACT 

( 1 PAGE ) 
--------------------- --------------------- NOS. WR-75,934-01, WR-75,934-02, WR-75,934-03 & WR-75,934-04 

--------------------- ---------------------

EX PARTE JAMES ALLEN PELLOAT, Applicant 

-------------------------------------------------- -------------------------------------------------- ON APPLICATION FOR A WRIT OF HABEAS CORPUS 

CAUSE NOS. NO 5591, 5593, 5594 & 5617 IN THE 1A JUDICIAL DISTRICT COURT 

FROM NE\NTON COUNTY 

=================================================== 

SUPPLEMENTAL FINDINGS OF FACT 

These Finding!: of Fact supplement the Findings of Fact and Conclusions of Law previously 

filed with this Court. 

I. FINDINGS OF FACT 

1. The State has elected to waive the illegal portion of the plea agreement of Applicant 

(Judgment and Sentence in Cause Number 5594) and maintain and adhere to the 

remainder of the plea agreement (Judgment and Sentence in Cause Numbers 5591, 

5593 and 5617). 

2. The State accepts the plea agreement as modified. 

3. The District Clerk of Newton County, Texas shall notify the Court of Criminal Appeals of 

Texas ofthe Court's Supplemental Findings of Fact. 

Signed and entered on this __f_ day of ~ 12012, 

NEWTON COUNTY, TEXAS 
APPLICANTS SUBMITTED' AMENDMENTS TO ORIGINAL HABEAS CORPUS 

( 3 PAGES ) 
AMENDMENT TO ORIGINAL HABEAS CORPUS 

Case No. ND-5591-A 

(The Clerk of the convicting court will fill this line in.) 

COPY 

')F(IGiNAL FiLED 

.JUI_ 11 2012 

. BREEALLEN 

IN THE COURT OF CRIMINAL APPEALS OF TEXASJ!strict Clerk, Newton Co. 

APPLICATION FOR A WRIT OF HABEAS CORPUS 

SEEKING RELIEF FROM FINAL FELONY CONVICTION 

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 

.NAME: __ J_a_m_e_s_A_l_l_e_n __ P_e_l_l_o_a_t _________________ _ 

.DATEOFBIRTH: April 20, 1947 

.PLACE OF CONFINEMENT: Stringfellow Unit TDCJ 

.TDCJ-CID NUMBER: _1_2_8_9_7_1_6 ___ _ SID NUMBER: 07415408 

(1) This application concerns (check all that apply): 

£3' a conviction 0 parole 

0 a sentence 0 mandatory supervision 

0 time credit 0 out-of-time appeal or petition for 

discretionary review 

(2) What district court entered the judgment of the conviction you want relief from? · 

(Include the court number and county.) 

1-A Judicial Diatrict Court- Ner.1ton County 

(3) What was the case number in the trial court? 

5591 

(4) What was the name of the trial judge? 

Monte Lawlis 

Revised: September I, 20 II 

\' 5 Cooy ~\~caM - ' 

1 

ATC-11.07 

\~ 
,. 

.. ' 

" ' 

.re o~J 

~ ~ ~ .;· \ 

AMENDMENT TO ORIGINAL HABEAS CORPUS 

Case No. ND-5593-A 

ORIGINAL FiLED 

JUL 11 2012 

(The Clerk of the convicting court will fill this line in.) BREE.4LLEN 

District Clerk, Newton Co. 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS 

APPLICATION FOR A WRIT OF HABEAS CORPUS 

SEEKING RELIEF FROM FINAL FELONY CONVICTION 

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 

. NAME: J arne s Allen· Pe lloa t 

DATE OF BIRTH: April 20, 194 7 

:PLACE OF CONFINEMENT: Strlngfellow Unl t 'l'DCJ 

TDCJ.:.CID NUMBER: 12 8 9 716 SID NUMBER: 0741 5408 

(1) This application concerns (check all that apply): 

!iQ a conviction 0 parole 

0 a sentence 0 mandatory supervision 

0 time credit 0 out-of-time appeal or petition for 

discretionary review 

(2) .What district court entered the judgment of the conviction you want relief from? 

(Include the court number and county.)· 

1-A Judicial District Court- Newton Co!lnty 

(3) . What was the case number in the trial court? I 

ND- 5593 

( 4) What was the name of the trial judge? 

MontE Lawlis 

Revised: September!, 2011 ATC-1 L07 

. '·'' \ .•. 

\ 

II 

c::· . 

,.. 
COPY 

OF<IG/f\JAL FiLED 

AMENDMENT TO ORIGINAL HABEAUS CORPUS 

CaseNo.ND- 5617-A 

(The Clerk of the convicting court will till this line in.) 

JUL' _.... 1 1 ?Q41') ..~..... ,_ L 

. . BREE ALLEN 

D!stnct Clerk N 

IN THE COURT OF CRIMINAL APPEALS OF TEXAS ' ewton Co. 

APPLICATION FOR A WRIT OF HABEAS CORPUS 

SEEKING RELIEF FROM FINAL FELONY CONVICTION 

UNDER CODE OF CRIMINAL PROCEDURE, ARTICLE 11.07 

_NAME: James Allen Pelloat 

.DATE OF BIRTH: April 20, 194 7 

.PLACE OF CONFINEMENT: Stringfellow Unit, TDCJ 

TDCJ-CID NUMBER: _,1""""'2"---"8'--"9'--'-7-=1~6-'-. ___ _ SID NUMBER: 0_,_7 =4 ""'-1 =--5 4-'-'0"'--'8"------

(l) This application concerns (check all that apply): 

~ a conviction 0 parole 

0 a sentence 0 mandatory supervision 

0 time credit 0 out-of-time appeal or petition for 

discretionary review 

(2) What district court entered the judgment of the conviction you want relief from? 

(Include the court number and county.) 

1-A Judicial District Court- Newton County 

(3) What was the case number in the trial court? 

( 4) What was the name of the trial judge? 

Monte Lawlis 

1(o 

Revised: September 1, 2011 ATC-11.07 

. • 

• 
APPLICANTS LETTERS TO DISTRICT CLERK 

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1 
LAFLER V. COOPER, 132 S.Ct. 1376 (2012) 

( 24 PAGES ) 

t 

..v;.~ ... \".' 

;f. ·. '• 
West law. 

Page I 

132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 

23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

S·upreme Court of the United States 

Blaine LAFLER, Petitioner 

v. 

Anthony COOPER. 

No. 10-209. 

Argued Oct. 31, 20 II . 

Decided March 21, 2012. 

Background: After affirmance of convictions and 

sentence, 2005 WL 599740, petitioner, a. state inmate who had been convicted of several offenses, 

including assault with intent to murder, after rejecting a guilty plea based on the advice of counsel, 

and who had been denied state postconviction relief, sought federal habeas cor;JUs relief, claiming 

ineffective assistance of counsel. The United States 

District Court for the Eastern District of Michigan, 

Denise Page Hood, J., 2009 WL 817712, conditionally granted the petition, requiring the state to offer 

petitioner the plea deal that he would have taken 

but for his attorney's ineffective assistance. State 

appealed. The United States Court of Appeals for 

the Si::th Circuit, Cornelia G. Kennedy, Circuit 

Judge, 3 76 Fed.Appx. 563, affinned. State's petition for certiJrari was granted. 

Holdings: The Supreme Court, Justice Kennedy, 

held that: 

( 1) petitioner was prejudiced by counsel's deficient 

perfonnance in advising petitioner tci reject the plea 

offer and go to trial, and 

(2) proper remedy for counsel's ineffective assistance was to order the State to reoffer the plea 

agreement, and then, if petitioner accepted the offer, the state trial court could exercise its discretion 

regarding whether to resentence. 

Vacated and remanded. 

Justice Scalia filed a dissenting opinion, which 

Justice Thomas joined and Chief Justice Roberts 

joined in part. 

Justice Ali to filed a dissenting opinion. 

West Headnotes 

[1] Criminal Law 110 €=1731 

II 0 Criminal Law 

II OXXXT Counsel 

11 OXXXI(B) Right of Defendant to Counsel 

II OXXXI(B)2 Stage of Proceedings as 

Affecting Right 

11 Ok 1731 k. Guilty pleas; plea negotiations, plea hearings, motion to withdraw. Most 

Cited Cases 

Defendants' Sixth Amendment right to counsel 

extends to the plea-bargaining process. U.S.C.A. 

Const.Amend. 6. 

[2] Criminal Law 110 €=1920 

I 1 0 Criminal Law 

II OXXXI Counsel 

11 OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

During plea negotiations defendants are entitled to the effective assistance of competent counsel. U.S.C.A. Const.Amend. 6. 

[3] Criminal Law 110 €=1920 

1 l 0 Criminal Law 

II OXXXI Counsel 

II OXXXT(C) Adequacy of Representation 

11 OXXXJ(C)2 Particular Cases and Issues 

II Ok 1920 k. Plea. Most Cited Cases 

The two-part Strickland , .. Washington test for 

ineffective assistance of counsel applies to challenges to guilty pleas based on ineffective assistance of counsel. U.S.C.A. Const.Amend. 6. 

[4] Criminal Law 110 €=1882';· >; 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 

.·,·:· 
Page 2 

I32 S.Ct. I376, I82 L.Ed.2d 398,80 USLW 4244, I2 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 

23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

II 0 Criminal Law 

I I OXXXT Counsel 

11 OXXXI(C) Adequacy of Representation 

11 OXXXI(C) I In General 

11 Ok 1879 Standard of Effective Assistance in General 

11 Ok 1882 k. Deficient representation in general. Most Cited Cases 

The performance prong of the Strickland test 

for ineffective assistance of counsel requires a defendant to show that counsel's representation fell 

below an objective standard of reasonableness. 

U.S.C.A. Const.Amend. 6. 

[5] Criminal Law 110 ~1883 

II 0 Criminal Law 

110XXXI Counsel 

11 OXXXI(C) Adequacy of Representation 

11 OXXXI(C) 1 In General 

11 Ok 1879 Standard of Effective Assistance in General 

11 Ok I 883 k. Prejudice in general. 

Most Cited Cases 

To establish the prejudice prong of the Strickland test for ineffective assistance of counsel, a defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, 

the result of the proceeding would have been different. U.S.C.A. Const.Amend. 6. 

[6] Criminal Law 110 ~1920 

11 0 Criminal Law 

II OXXXI Counsel 

II OXXX!(C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

J!Okl920 k. Plea. Most Cited Cases 

In the context of pleas, to establish the prejudice prong of the Strickland test for ineffective assistance of counsel, a defendant must show the outcome of the plea process would have been different 

with competent advice. U.S.C.A. Const.Amend. 6. 

[7] Criminal Law 110 ~1920 

11 0 Criminal Law 

11 OX XXI Counsel 

11 OXXXI(C) Adequacy of Representation 

110XXXI(C)2 Particular Cases and Issues 

110k1920 k. Plea. Most Cited Cases 

In the context of a defendant having rejected a 

plea offer from the prosecution based on the deficient advice of counsel and having stood trial, the 

defendant, to establish the prejudice prong of the 

Strickland test for ineffective assistance of counsel, 

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, and also 

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. U.S.C.A. Const.Amend. 6. 

[8] Criminal Law 110 ~1718 

110 Criminal Law 

11 OXXXI Counsel 

II OXXXI(B) Right of Defendant to Counsel 

11 OXXXI(B)2 Stage of Proceedings as 

Affecting Right 

II Ok 1718 k. Critical stages. Most 

Cited Cases 

The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. U.S.C.A. Const.Amend. 6. 

[9] Criminal Law 110 ~1718 

110 Criminal Law 

1 I OXXXI Counsel 

11 OXXXI(B) Right of Defendant to Counsel 

11 OXXXI(B)2 Stage of Proceedings as 

Affecting Right 

II Ok 1718 k. Critical stages. Most 

Cited Cases 

The Sixth Amendment's protections against ineffective assistance of counsel are not, designed 

© 2012 Thomson Reuters. No Clain1 to Orig. US Gov. Works. 
Page 3 

132 S.Ct. 1376, 182 L.Ed.2d 398,80 USLW 4244, 12 Cal. Daily Op. Serv. 3299,2012 Daily Journal D.A.R. 3726, 

23 Fla. L. Weekly Fed. S.203 

(Cite as: 132 S.Ct. 1376) 

simply to protect the trial, even though counsel's 

absence ip critical stages of a criminal proceeding 

may derogate from the accused's right to a fair trial. 

U.S.C.A. Const.Amend. 6. 

[10] Criminal Law 110 €;=1718 

I I 0 Criminal Law 

II OXXXI Counsel 

11 OXXXI(B) Right of Defendant to Counsel 

, II OXXXT(B)2 Stage of Proceedings as 

Affecting Right 

II Ok 1718 k. Critical stages. Most 

Cited Cases 

The constitutional guarantee of effective assistance of counsel applies to pretrial critical stages 

that are part of the whole course of a criminal proceeding, a proceeding in which defendants cannot 

be presumed to make critical decisions without 

counsel's advice. U.S.C.A. Const.Amend. 6. 

[11] Criminal Law 110 €;=1967 

II 0 Criminal Law 

II OXXXI Counsel 

Cases 

11 OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

II Ok 1966 Appeal 

II Ok 1967 k. In general. Most Cited 

Defendants have a right to effective assistance 

of counsel on appeal, even though that cannot in 

any way be characterized as part of the trial. 

U.S.C.A. Const.Amend. 6. 

[12] Criminal Law 110 €=1953 

II 0 Criminal Law 

11 OXXXI Counsel 

Cases 

II OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

II Ok 19 52 Sentencing in General 

II Ok 1953 k. In general. Most Cited 

Criminal Law 110 €=1959 

II 0 Criminal Law 

I 1 OX XXI Counsel 

Cases 

11 OXXXI( C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

11 Ok 1958 Death Penalty 

II Ok 1959 k. In general. Most Cited 

A right to effective assistance of counsel exists 

during sentencing in both noncapital and capital 

cases. U.S.C.A. Const.Amend. 6. 

[13] Criminal Law 110 €=1953 

II 0 Criminal Law 

I 1 OXXXI Counsel 

Cases 

II OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

11 Ok 1952 Sentencing in General 

11 Ok 1953 k. In general. Most Cited 

Even though sentencing does not concern the 

defendant's guilt or innocence, ineffective assistance of counsel during a sentencing hearing can 

result in prejudice, under the prejudice prong of the 

Strickland test for ineffective assistance of counsel, 

because any amount of additional jail time has 

Sixth Amendment significance. U .S.C.A. 

Const.Amend. 6. 

[14] Criminal Law 110 €=1920 

I I 0 Criminal Law 

11 OXXXI Counsel 

II OXXXI(C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

Even if the trial itself is free from constitutional flaw, the defendant who, based on the deficient 

perfonnance of counsel, goes to trial instead of taking a more favorable plea may be prejudiced, as 

element of ineffective assistance of counsel, from 

either a conviction on more serious counts or the 

imposition of a more severe sentence. U.S.C.A. 

Const.Amend. 6. 

[15] Criminal Law 110 €=1924 

,' '· i: ~~.; -.-: -.: ,· •. 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. ·'<· 
Page4 

132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal D.A.R. 3726, 

23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

I I 0 Criminal Law 

I I OX XXI Counsel 

II OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

II Ok 1921 Introduction of and Objections to Evidence at Trial 

I10k1924 k. Presentation of witnesses. Most Cited Cases 

A defendant cannot show prejudice, under the 

prejudice prong of the Strickland test for ineffective 

assistance of counsel, based on counsel's refusal to 

present perjured testimony, even if such testimony 

might have affected the outcome of the case. 

U.S.C.A. Const.Amend. 6. 

[16] Criminal Law 110 ~1920 

I I 0 Criminal Law 

II OXXXI Counsel 

II OXXXI(C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

If a plea bargain has been offered, a defendant 

has the right to effective assistance of counsel in 

considering whether to accept it, and if that right is 

denied, prejudice can be shown, under the prejudice 

prong of the Strickland test for ineffective assistance of counsel, 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. U.S.C.A. Const.Amend. 6. 

[17] Criminal Law 110 ~273(2) 

II 0 Criminal Law 

I JOXV Pleas 

11 Ok272 Plea of Guilty 

11 Ok273 In General 

Il Ok273(2) k. Right to plead guilty; 

mental competence. Most Cited Cases 

Defendants have no right to be offered a plea, 

nor a federal right that the judge accept it. 

[18] Constitutional Law 92 ~1050 

92 Constitutional Law 

92VII Constitutional Rights in General 

92VII(A) In General 

92kl 050 k. In general. Most Cited Cases 

When a State opts to act in a field where its action has significant discretionary elements, it must 

nonetheless act in accord with the dictat~s of the 

Constitution. 

[19] Criminal Law 110 ~1880 

110 Criminal Law 

II OXXXI Counsel 

II OXXXI(C) Adequacy of Representation 

110XXXI(C)1 In General 

11 Ok 1879 Standard of Effy,ctive Assistance in General 

11 Ok 1880 k. In general. Most Cited 

Cases 

The benchmark for judging any claim of ineffective assistance of counsel must be whether counsel's conduct so undermined the proper functioning 

of the adversarial process that the trial cannot be relied on as having produced a just result. U.S.C.A. 

Const.Amend. 6. 

[20] Criminal Law 110 ~1870 

110 Criminal Law 

II OXXXI Counsel 

Cases 

II OXXXI(C) Adequacy of Representation 

II OXXXI(C) 1 In General 

11 Ok 1870 k. In general. Most Cited 

The constitutional rights of criminal defendants 

are granted to the innocent and the guilty alike, and 

consequently, the guarantee of effective assistance 

of counsel does not belong solely to the innocent or 

attach only to matters affecting the determination of 

actual guilt. U.S.C.A. Const.Amend. 6. 

[21] Criminal Law 110 ~1862 

I I 0 Criminal Law 

II OXXXI Counsel 

11 OXXXI(B) Right of Defendant to Counsel 

I 1 OXXXI(B) 11 Deprivation or Allowance 

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(Cite as: 132 S.Ct. 1376) 

of Counsel 

I I Ok 1860 Effect of Representation or 

Deprivation of Rights 

II Ok 1862 k. Remedies. Most Cited 

Cases 

Sixth Amendment remedies should be tailored 

to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests, and thus, a remedy must neutralize 

the taint of a constitutional violation, while at the 

same time not grant a windfall t~ the defendant or 

needlessly squander the considerable resources the 

State properly invested in the criminal prosecution. 

U.S.C.A. Const.Amend. 6. 

[22] Criminal Law 110 €:=1920 

110 Criminal Law 

11 OXXXI Counsel 

11 OXXXI( C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

When determining the remedy for ineffective 

assistance of counsel relating to defendant's rejection of a plea offer, if the sole advantage a defendant would have received under the plea is a lesser 

sentence, which is typically the case when the 

charges that would have been admitted as part of 

the plea bargain are the same as the charges the defendant was convicted of after trial, the court may 

conduct an evidentiary hearing to determine whether the defendant has shown a reasonable probability 

that but for counsel's errors he would have accepted 

the plea, and if the showing is made, the court may 

exercise discretion in determining whether the defendant should receive the term of imprisonment 

the government offered in the plea, the sentence he 

received at trial, or something in between. U.S.C.A. 

Const.Amend. 6. 

[23] Criminal Law 110 €:=1920 

I 1 0 Criminal Law 

II OX XXI Counsel 

11 OXXXI(C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

II Ok 1920 k. Plea. Most Cited Cases 

For purposes of detennining the remedy for ineffective assistance of counsel relating to defendant's rejection of a plea offer, if an offer was for a 

guilty plea to a count or counts less serious than the 

ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's 

sentencing discretion after trial, the proper exercise 

of discretion to remedy the constitutional injury 

may be to require the prosecution to reoffer the plea 

proposal, and once this has occurred, the judge can 

then exercise discretion in deciding whether to vacate the conviction from trial and accept the plea or 

leave the convictiOn undisturbed. U.S.C.A. 

Const.Amend. 6. 

[24] Criminal Law 110 ~1920 

110 Criminal Law 

11 OXXXI Counsel 

11 OXXXI(C) Adequacy of Representation 

11 OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

A court, in determining the remedy for ineffective assistance of counsel relating to defendant's 

rejection of a plea offer, may take account of a defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. U.S.C.A. Const.Amend. 6. 

[25] Criminal Law IIO ~1920 

110 Criminal Law 

1 1 OX XXI Counsel 

11 OXXXI( C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

In determining the remedy for ineffective assistance of counsel relating to defendant's rejection 

of a plea offer, the precise positions the defendant 

and the prosecution prior to the rejection of the plea 

offer can be consulted in finding a remedy that does 

not require the prosecution to incur the expense of 

conducting a new trial. U.S.C.A. Const.Amend. 6. 

[26] Habeas Corpus 197 ~452 

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197 Habeas Corpus 

197!I Grounds for Relief; Illegality of Restraint 

197Il(A) Ground and Nature of Restraint 

197k450 Federal Review of State or Territorial Cases 

' 197k452 k. Federal or constitutional 

questions. Most Cited Cases 

A decision is "contrary to clearly established 

law," for purposes of the Antiterrorism and Effective Death Penalty Act (AEDPA), under which a 

federal court may not grant a petition for a writ of 

habeas corpus unless the state court's adjudication 

on the merits was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the 

United States, if the state court applies a rule that 

contradicts the governing law set forth in Supreme 

Court cases. 28 U.S.C.A. § 2254(d)(l). 

[27] Criminal Law 110 €:=1920 

II 0 Criminal Law 

II OXXXI Counsel 

11 OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

11 Ok 1920 k. Plea. Most Cited Cases 

An inquiry into whether the rejection of a plea 

is knowing and voluntary is not the correct means 

by which to address a claim of ineffective assistance of counsel, relating to a plea. U.S.C.A. 

Const.Amend. 6. 

[28] Criminal Law 110 ~1920 

110 Criminal Law 

II OXXXI Counsel 

II OXXXI(C) Adequacy of Representation 

II OXXXI(C)2 Particular Cases and Issues 

ll0kl920 k. Plea. Most Cited Cases 

Defendant was prejudiced, as element of ineffective assistance of counsel, by counsel's deficient 

perfonnance in advising defendant to reject a plea 

offer from the State and go to trial because counsel 

allegedly believed that defendant's intent to murder, 

for purposes of charge under Michigan law of assault with intent to murder, could not be established 

since the victim had been shot below the waist; but 

for counsel's deficient performance, there was a 

reasonable probability that defendant and the trial 

court would have accepted the guilty plea, and as a 

result of not accepting the plea offer and being convicted at trial, defendant received a minimum sentence three and one-half times greater than he 

would have received under the plea. U.S.C.A. 

Const.Amend. 6. "· 

[29] Criminal Law 110 €:;=1920 

II 0 Criminal Law 

11 OXXXI Counsel 

11 OXXXI(C) Adequacy of Representation 

110XXXI(C)2 Particular Cases and Issues 

II Ok 1920 k. Plea. Most Cited Cases 

Proper remedy for counsel's ineffective assistance in advising defendant to reject a plea offer 

from the State and go to trial because counsel allegedly believed that defendant's intent to murder, 

for purposes of charge under Michigan law of assault with intent to murder, could not be established 

since the victim had been shot below the waist, was 

to order the State to reoffer the plea agreement, and 

then, presuming defendant accepted the .offer, the 

state trial court could exercise its discretion in determining whether to vacate the convictions and resentence defendant pursuant to the plea agreement, 

to vacate only some of the convictions and resentence defendant accordingly, or to leave the convictions and sentence from trial undisturbed. U.S.C.A. 

Const.Amend. 6; MCR 6.302(C)(3). 

FN* * 1380 Syllabus 

FN* The syllabus constitutes no part of the 

opinion of the Court but has been prepared 

by the Reporter of Decisions for the convenience of the reader. See United States v. 

Detroit Timber & Lumber Co., 200 U.S. 

321, 337, 26 S.Ct. 282, 50 L.Ed. 499. 

Respondent was charged under Michigan law 

with assault with intent to murder and three other 

offenses. The prosecution offered to dismiss two of · 

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(Cite as: 132 S.Ct. 1376) 

the charges and to recommend a 51-to-85-month 

sentence on the other two, in exchange for a guilty 

plea. In a communication with the court, respondent 

admitted ,his guilt and expressed a willingness to 

accept the offer. But he rejected the offer, allegedly 

after his attorney convinced him that the prosecution would be unable to establish intent to murder 

because the victim had been shot below the waist. 

At trial, respondent was convicted on all counts and 

received a mandatory minimum 185-to-360-month 

sentence. In a subsequent hearing, the state trial 

court rejected respondent's claim that his attorney's 

advice to•reject the plea constituted ineffective assistance. The Michigan Court of Appeals affirmed, 

rejecting the ineffective-assistance claim on the 

ground that respondent knowingly and intelligently 

turned down the plea offer and chose to go to trial. 

Respondent renewed his claim .in federal habeas. 

Finding that the state ·appellate court had unreasonably applied the constitutional effective-assistance 

standards laid out in Strickland v. Washington, 466 

U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674, and Hill 

v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 

203, the District Court granted a conditional writ 

and ordered specific performance of the original 

plea offer. The Sixth Circuit affirmed. Applying 

Strickland, it found that counsel had provided deficient perfonnance by advising respondent of an incorre~t legal rule, and that respondent suffered prejudice because he lost the opportunity to take the 

more favorable sentence offered in the plea. 

Held: 

I. Where counsel's ineffective advice led to an 

offer's rejection, and where the prejudice alleged is 

having to stand trial, a defendant must show that 

but for the ineffective advice, there is a reasonable 

probability that the plea offer would have been 

presented to the court, 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 actual judgment and 

sentence imposed. Pp. 1383- 1388. 

(a) Because the parties agree that counsel's performance was deficient, the only question is how to 

apply Strickland 's prejudice test where ineffective 

assistance results in a rejection of the plea offer and 

the defendant is convicted at the ensuing trial. Pp. 

1383- 1384. 

(b) In that context, the Strickland prejudice test 

requires a defendant to show a reasonable possibility that the outcome of the plea process would have 

been different with competent advice. The Sixth 

Circuit and other federal appellate courts have 

agreed with the Strickland prejudice test for reje'cted pleas adopted here by this Court. Petitioner and 

the Solicitor General propose a narrow view-that 

Strickland prejudice cannot arise from plea bargaining if the defendant is later convicted at a fair trial-but their reasoning is unpersuasive. First, they 

claim that the Sixth Amendment's sole purpose is to 

protect the right to a fair trial, but the Amendment 

actually requires effective assistance at critical 

stages of a *1381 criminal proceeding, including 

pretrial stages. This is consistent with the right to 

effective assistance on appeal, see, e.g., Halbert v. 

Michigan, 545 U.S. 605, 125 S.Ct. 2582, 162 

L.Ed.2d 552, and the right to counsel during sentencing, see, e.g., Glover v. United States, 531 U.S. 

198, 203-204, 121 S.Ct. 696, I 48 L.Ed.2d 604. 

This Court has not followed a rigid rule that an otherwise fair trial remedies errors not occurring at trial, but has instead inquired whether the trial cured 

the particular error at issue. See, e.g., Vasquez v. 

Hillery, 474 U.S. 254, 263, 106 S.Ct. 617, 88 

L.Ed.2d 598. Second, this Court has previously rejected petitioner's argument that Lockhart v. 

Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 

180, modified Strickland and does so again here. 

Fretwell and Nix v. Whiteside, 475 U.S. 157, 106 

S.Ct. 988, 89 L.Ed.2d 123, demonstrate that "it 

would be unjust to characterize the likelihood of a 

different outcome as legitimate 'prejudice,' " Williams v. Taylor, 529 U.S. 362, 391-392, 120 S.Ct. 

1495, 146 L.Ed.2d 389, where defendants would receive a windfall as a result of the application of an 

incorrect legal principle or a defense strategy outside the law. Here, however, respondent seeks relief 

··:":.":'··-· 

~ . . . 

2 

...... ,.... ·. . . -

. . : .. 

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

from counsel's failure to meet a valid legal standard. Third, petitioner seeks to preserve the conviction by arguing that the Sixth Amendment's purpose 

is to ensure a conviction's reliability, but this argument fails to comprehend the full scope of the Sixth 

Amendment and is refuted by precedent. Here, the 

question is the fairness or reliability not of the trial 

but of the processes that preceded it, which caused 

respondent to lose benefits he would have received 

but for counsel's ineffective assistance. Furthermore, a reliable trial may not foreclose relief when 

counsel has failed to assert rights that may have 

altered the outcome. See Kimmelman v. Morrison, 

477 U.S. 365, 379, 106 S.Ct. 2574, 91 L.Ed.2d 305. 

Petitioner's position that a fair trial wipes clean ineffective assistance during plea bargaining also ignores the reality that criminal justice today is for 

the most part a system of pleas, not a systeni of trials. See Missouri v. Frye, -U.S.--, 132 S.Ct. 

1399,- L.Ed.2d -. Pp. 1384- 1388. 

2. Where a defendant shows ineffective assistance has caused the rejection of a plea leading to a 

more severe sentence at trial, the remedy must 

"neutralize the taint" of a constitutional violation, 

United States 1'. Morrison, 449 U.S. 361, 365, 101 

S.Ct. 665, 66 L.Ed.2d 564, but must not grant a 

windfall to the defendant or needlessly squander the 

resources the State properly invested in the criminal 

prosecution, see United States v. Mechanik, 475 

U.S. 66, 72, 106 S.Ct. 938, 89 L.Ed.2d 50. If the 

sole advantage is that the defendant would have received a lesser sentence under the plea, the court 

should have an evidentiary hearing to determine 

whether the defendant would have accepted the 

plea. If so, the court may exercise discretion in determining whether the defendant should receive the 

term offered in the plea, the sentence received at 

trial, or something in between. However, resentencing based on the conviction at trial may not suffice, e.g., where the offered guilty plea was for less 

serious counts than the ones for which a defendant 

was convicted after trial, or where a mandatory sentence confines a judge's sentencing discretion. In 

these circumstances, the proper remedy may be to 

require the prosecution to reoffer the plea. The 

judge can then exercise discretion in deciding 

whether to vacate the conviction from trial and accept the plea, or leave the conviction undisturbed. 

In either situation, a court must weigh various 

factors. Here, it suffices to give two relevant considerations. First, a court may take account of a defendant's earlier * 1382 expressed willingness, or 

unwillingness, to accept responsibility for his or her 

actions. Second, it is not necessary here to decide 

as a constitutional r:ule that a judge is r~.quired to 

disregard any information concerning the crime discovered after the plea offer was made. Petitioner argues that implementing a remedy will open the 

floodgates to litigation by defendants seeking to unsettle their convictions, but in the 30 years that 

courts have recognized such claims, there has been 

no indication that the system is overwhelmed or 

that defendants are receiving windfalls as a result of 

strategically timed Strickland claims. In~·addition, 

the prosecution and trial courts may adopt measures 

to help ensure against meritless claims. See Frye, 

ante, at--, 132 S.Ct. 1399. Pp. 1388- 1390. 

3. This case arises under the Antiterrorism and 

Effective Death Penalty Act of 1996 (AEDP A), but 

because the Michigan Court of Appeals' analysis of 

respondent's ineffective-assistance-of-counsel claim 

was contrary to clearly established federal"law, AEDPA presents no bar to relief. Respondent has satisfied Strickland 's two-part test. The parties concede 

the fact of deficient performance. And respondent 

has shown that but for that performance there is a 

reasonable probability he and the trial court would 

have accepted the guilty plea. In addition, as a result of not accepting the plea and being convicted at 

trial, he received a minimum sentence ~- & half; 

times greater than he would have received under 

the plea. As a remedy, the District Court ordered 

specific perfonnance of the plea agreement, but the 

correct remedy is to order the State to reoffer the 

plea. If respondent accepts the offer, the state trial 

court can exercise its discretion in determining 

whether to vacate respondent's convictions and resentence pursuant to the plea agreement, to vacate 

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(Cite as: 132 S.Ct. 1376) 

only som.e of the convictions and resentence accordingly, or to leave the conviction and sentence 

resulting from the trial undisturbed. Pp. 1390 -

1391. 

376 Fcd.Appx. 563, vacated and remanded. 

KENNEDY, J., ·delivered the opinion of the 

Court, in which GINSBURG, BREYER, SOTOMAYOR. and KAGAN, JJ., joined. SCALIA, J., 

filed a dissenting opinion, in which THOMAS, J., 

joined, and in which ROBERTS, C.J., joined as to 

all but Part IV. AUTO, J., filed a dissenting opinion. 

John J. Bursch, Solicitor General, for Petitioner. 

William M. Jay, for the United States, as amicus 

curiae, by special leave of the Court, supporting the 

Petitioner. 

Valerie R. Newman, Detroit, MI, appointed by this 

Court, for the Respondent. 

Bill Schuette, Attorney General, John J. Bursch, 

Michigan Solicitor General, Counsel of Record, 

Lansing, MI, B. Eric Restuccia, Michigan Deputy 

Solicitor General, Joel D. McGormley, Appellate 

Division Chief, for Petitioner. 

Jeffrey T. Green, Karen S. Smith, Brian A. Fox, 

Sidley Austin LLP, Washington, DC, Sarah 

O'Rourke Schrup, Chicago, IL, Valerie R. Newman 

, Jacqueline J. McCann, State Appellate Defender 

Office, Detroit, MI, for Respondent Anthony 

Cooper. 

For U.S. Supreme Court briefs, see:20 II WL 

3663395 (Reply.Brief)2011 WL 2837936 

(Resp.Brief)2011 WL 1523284 (Pet.Brief) 

Justice KENNEDY delivered the opinion of the 

Court. 

In this case, as in Missouri v. Frye, - U.S. 

---, 132 S.Ct. 1399, ----L.Ed.2d ··.·---· (2012), 

also decided today, a criminal *1383 defendant 

seeks a -remedy when inadequate assistance of 

counsel caused nonacceptance of a plea offer and 

further proceedings led to a less favorable outcome. 

In Frye, defense counsel did not inform the defendant of the plea offer; and after the offer lapsed the 

defendant sfill pleaded guilty, but on more severe 

terms. Here, the favorable plea offer was reported 

to the client but, on advice of counsel, was rejected. 

In F1ye there was a later guilty plea. Here, after the 

plea offer had been rejected, there was a full and 

fair trial before a jury. After a guilty verdict, the defendant received a sentence harsher than that 

offered in the rejected plea bargain. The instant 

case comes to the Court with the concession that 

counsel's advice with respect to the plea offer fell 

below the standard of adequate assistance of counsel guaranteed by the Sixth Amendment, applicable 

to the States through the Fourteenth Amendment. 

On the evening of March 25, 2003, respondent 

pointed a gun toward Kali Mundy's head and fired. 

From the record, it is unclear why respondent did 

this, and at trial it was suggested that he might have 

acted either in self-defense or in defense of another 

person. In any event the shot missed and Mundy 

fled. Respondent followed in pursuit, firing repeatedly. Mundy was shot in her buttock, hip, and 

abdomen but survived the assault. 

Respondent was charged under Michigan law 

with assault with intent to murder, possession of a 

firearm by a felon, possession of a firearm in the 

commission cif a felony, misdemeanor possession 

of marijuana, and for being a habitual offender. On 

two occasions, the prosecution offered to dismiss 

two of the charges and to recommend a sentence of 

51 to 85 months for the other two, in exchange for a 

guilty plea. In a communication with the court respondent admitted guilt and expressed a willingness 

to accept the offer. Respondent, however, later rejected the offer on both occasions, allegedly after 

his attorney convinced him that the prosecution 

would be unable to estab~ish his intent to murder 

Mundy because she had been shot below the waist. 

On the first day of trial the prosecution offered a 

significantly less favorable plea deal, which re-

.; :- ,,.,_.-· 

i). ~:- ·.:-,-.-~· ;::L· :· ·. --~~,--. ' -, 

'~' I 

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(Cite as: 132 S.Ct. 1376) 

spondent again rejected. After trial, respondent was 

convicted on all counts and received a mandatory 

minimum sentence of 185 to 360 months' imprisonment. 

In a so-called Ginther hearing before the state 

trial court, see People v. Ginther, 390 Mich. 436, 

212 N.W.2d 922 (1973), respondent argued his attorney's advice to reject the plea constituted ineffective assistance. The trial judge rejected the 

claim, and the Michig~n Court of Appeals affirmed. 

People v. Cooper, No. 250583, 2005 WL 599740 

(Mar. 15, 2005) (per curiam), App. to Pet. for Cert. 

44a. The Michigan Court of Appeals rejected the 

claim of ineffective assistance of counsel on the 

ground that respondent knowingly and intelligently 

rejected two plea offers and chose to go to trial. 

The Michigan Supreme Court denied respondent's 

application for leave to file an appeal. People v. 

Cooper, 474 Mich. 905, 705 N.W.2d 118 (2005) 

(table). 

Respondent then filed a petition for federal 

habeas relief under 28 U.S.C. § 2254, renewing his 

ineffective-assistance-of-counsel claim. After finding, as required by the Antiterrorism and Effective 

Death Penalty Act of 1996 (AEDPA), that the 

Michigan Court of Appeals had unreasonably applied the constitutional standards for effective assistance of counsel laid out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984), and *1384Hil/ v. Lockhart, 474 U.S. 

52, I 06 S.Ct. 366, 88 L.Ed.2d 203 (1985), the District Court granted a conditional writ. Cooper 1'. 

Lafler, No. 06-11068, 2009 WL 817712, *10 

(E.D.Mich., Mar. 26, 2009), App. to Pet. for Cert. 

41a-42a. To remedy the violation, the District 

Court ordered "specific performance of 

[respondent's] original plea agreement, for a minimum sentence in the range of fifty-one to eightyfive months." !d., at *9, App. to Pet. for Cert. 41a. 

The United States Court of Appeals for the 

Sixth Circuit affirmed, 376 Fed.Appx. 563 (20 I 0), 

finding "[e]ven full deference under AEDPA cannot salvage the state court's decision," id., at 569. 

Applying Strickland, the Court of Appeals found 

that respondent's attorney had provided deficient 

performance by informing respondent of "an incorrect legal rule," 376 Fed.Appx., at 570-571, and 

that respondent suffered prejudice because he "lost 

out on an opportunity to plead guilty a~ .. d receive 

the lower sentence that was offered to him." !d., at 

573. This Court granted certiorari. 562 U.S. --, 

131 S.Ct. 856, 178 L.Ed.2d 622 (20 11 ). 

II 

A 

[1][2][3][4] Defendants have a Sixth Amendment right to counsel, a right that extends to the 

plea-bargaining process. Frye, ante, at 1386- 1387, 

132 S.Ct. 1399; see also Padilla v. Kentucky, 559 

U.S. --, --, 130 S.Ct. 1473, 1486, 176 

L.Ed.2d 284 (20 10); Hill, supra, at 57, 106 S.Ct. 

366. During plea negotiations defendants are 

"entitled to the effective assistance of competent 

counsel." McMann v. Richardson, 397 U.S. 759, 

771,90 S.Ct. 1441,25 L.Ed.2d 763 (1970). In.Hi/1, 

the Court held "the two-part Strickland v. Washington test applies to challenges to guilty pleas based 

on ineffective assistance of counsel.'~ 474 U.S., at 

58, 106 S.Ct. 366. The perfonnance prong of 

Strickland requires a defendant to show " 'that 

counsel's representation fell below an objective 

standard of reasonableness.' "474 U.S., at 57, 106 

S.Ct. 366 (quoting Strickland, 466 U.S., at 688, 104 

S.Ct. 2052). In this case all parties agree the performance of respondent's counsel was_,._ deficient 

when he advised respondent to reject the plea offer 

on the grounds he could not be convicted at trial. In 

light of this concession, it is unnecessary for this 

Court to explore the issue. 

The question for this Court is how to apply 

Strickland's prejudice test where ineffective assistance results in a rejection of the plea offer and the 

defendant is convicted at the ensuing trial." 

B 

[5][6] To establish Strickland prejudice a defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, 

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the result of the proceeding would have been different." !d., at 694, 104 S.Ct. 2052. In the context of 

pleas a defendant must show the outcome of the 

plea process would have been different with competent advice. See Frye, ante, at 1388 - 1389, 132 

S.Ct. 1399 (noting that Strickland's inquiry, as applied to advice with respect to plea bargains, turns 

on "whether 'the result of the proceeding would 

have been different' "(quoting Strickland, supra, at 

694, 104 S.Ct. 2052)); see also Hill, 474 U:S., at 

59, I 06 S.Ct. 366 ("The ... 'prejudice,' requirement 

... focuses on whether counsel's constitutionally ineffective performance affected the outcome of the 

plea process"). In Hill, when evaluating the petitioner's claim that ineffective assistance led to the 

improvident acceptance of a guilty plea, the Court 

required the petitioner to show "that there is a reasonable probability that, but for counsel's errors, 

*1385 [the defendant] would not have pleaded 

guilty and would have insisted or. going to trial." 

!hid. 

[7] In contrast to Hill, here the ineffective advice led not to an offer's acceptance but to its rejection. Having to stand trial, not choosing to waive it, 

is the prejudice alleged. In these circumstances 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 term~ would have been less severe than under 

the judgment and sentence that in fact were imposed. Here, .the Court of Appeals for the Sixth Circuit agreed with that test for Strickland prejudice in 

the context of a rejected plea bargain. This is consistent with the test adopted and applied by other 

appellate courts without demonstrated difficulties 

or systemic disruptions. See 3 76 Fed./\ppx., at 

571-573; see also, e.g., United Stares v. Rodriguez 

Rodriguez, 929 F.2d 747, 753, n. I (C.A.l 1991) 

(per curiam); United States v. Gordon. 156 F.3d 

376, 380-381. (C.A.2 1998) (per curiam); United 

Stales v. Day. 969 F.2d 39, 43-45 (C.A.3 1992); 

Beckham v. Wainwright, 639 F.2d 262, 267 (C.A.5 

1981 ); Julian v. Bartley, 495 F .3d 487, 498-500 

(C.A.7 2007); Wanaree v. Ault, 259 F.3d 700, 

703-704 (C.A.8 200 I); Nunes v. Mueller. 350 F.3d 

1045, 1052-1053 (C.A.9 2003); Williams v. Jones, 

571 F.3d 1086, 1094-1095 (C.A.IO 2009) (per 

curiam); United States v. Gaviria. 116 F.3d 1498, 

1512-1514 (C.A.D.C.I997) (per curiam). 

Petitioner and the Solicitor General propose a 

different, far more narrow, view of the Sixth 

Amendment. They contend there can be no finding 

of Strickland prejudice arising from plea bargaining 

if the defendant is later convicted at a fair trial. The 

three reasons petitioner and the Solicitor General 

offer for their approach are unpersuasive. 

[8][9][10][11][12][13] First, petitioner and the 

Solicitor General claim that the sole purpose of the 

Sixth Amendment is to protect the right to a fair trial. Errors before trial, they argue, are not cognizable under the Sixth Amendment unless they affect 

the fairness of the trial itself. See Brief for Petitioner 12-21; Brief for United States as Amicus Curiae 

10-12. The Sixth Amendment, however, is not so 

narrow in its reach. Cf. F1ye, anre, at 1388, 132 

S.Ct. 1399 (holding that a defendant can show prejudice under Strickland even absent a showing that 

the deficient perfonnance precluded him from going to trial). The Sixth Amendment requires effective assistance of counsel at critical stages of a criminal proceeding. Its protections are not designed 

simply to protect the trial, even though "counsel's 

absence [in these stages] may derogate from the accused's right to a fair trial." United States v. Wade. 

388 U.S. 218, 226, 87 S.Ct. 1926, 18 L.Ed.2d 1149 

( 1967). The constitutional guarantee applies to pretrial critical stages that are part of the whole course 

of a criminal proceeding, a proceeding in which defendants cannot be presumed to make critical decisions without counsel's advice. This is consistent, 

too, with the rule that defendants have a right to effective assistance of counsel on appeal, even 

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though that cannot in any way be characterized as 

part of the trial. See, e.g., Hulbert v. Michigan, 545 

U.S. 605, 125 S.Ct. 2582, 162 L.Ed.2d 552 (2005); 

Evitts v. Lucey, 469 U.S. 387, 105 S.Ct. 830, 83 

L.Ed.2d 821 ( 1985). The precedents also establish 

that there exists a right to counsel during sentencing 

in both noncapital, see *1386Giover v. United 

States, 531 U.S. 198, 203-204, 121 S.Ct. 696, 148 

L.Ed.2d 604 (200 I); Mempa v. Rhay, 389 U.S. 128, 

88 S.Ct. 254, 19 L.Ed.2d 336 ( 1967), and capital 

cases, see Wiggins v. Smith, 539 U.S. 510,538, 123 

S.Ct. 2527, 156 L.Ed.2d 4 71 (2003). Even though 

sentencing does not concern the defendant's guilt or 

innocence, ineffective assistance of counsel during 

a sentencing hearing can result in Strickland prejudice because "any amount of [additional] jail time 

has Sixth Amendment significance." Glover, supra, 

at 203, 121 S.Ct. 696. 

The Court, moreover, has not followed a rigid 

rule that an otherwise fair trial remedies errors not 

occurring at the trial itself. It has inquired instead 

whether the trial cured the particular error at issue. 

Thus, in Vasquez v. Hillery, 474 U.S. 254, 106 

S.Ct. 617, 88 L.Ed.2d 598 ( 1986), the deliberate exclusion of all African-Americans from a grand jury 

was prejudicial because a defendant may have been 

tried on charges that would not have been brought 

at all by a properly constituted grand jury. !d., at 

263, I 06 S.Ct. 617; see Ballard v. United States, 

329 U.S. 187, 195, 67 S.Ct. 261, 91 L.Ed. 181 

( 1946) (dismissing an indictment returned by a 

grand jury from which women were excluded); see 

also Stirone v. United States, 361 U.S. 212, 

218-219, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) 

(reversing a defendant's conviction because the jury 

may have based its verdict on acts not charged in 

the indictment). By contrast, in United States v. 

Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 

50 ( 1986), the complained-of error was a violation 

of a grand jury rule meant to ensure probable cause 

existed to believe a defendant was guilty. A subsequent trial, resulting in a verdict of guilt, cured 

this error. See id., at 72-73, 106 S.Ct. 938. 

[14] In the instant case respondent went to trial 

rather than accept a plea deal, and it is conceded 

this was the result of ineffective assistance during 

the plea negotiation process. Respondent received a 

more severe sentence at trial, one 3 1/2 times more 

severe than he likely would have received by pleading guilty. Far from curing the error, the trial 

caused the injury from the error. Even if the trial itself is free from constitutional flaw, the ~efendant 

who goes to trial instead of taking a more favorable 

plea may be prejudiced from either a .conviction on 

more serious counts or the imposition of a more 

severe sentence. 

Second, petitioner claims this , Court refined 

Strickland 's prejudice analysis in Fretwell to add 

an additional requirement that the defendant show 

that ineffective assistance of counsel led to his being denied a substantive or procedural right. Brief 

for Petitioner 12-13. The Court has rejected the argument that Fretwell modified Strickland before 

and does so again now. See Williams v. Taylor, 529 

U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 

(2000) ("The Virginia Supreme Court erred in holding that our decision in Lockhart v. Fretwell, 506 

U.S. 364, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993), 

modified or in some way supplanted the rule set 

down in Strickland "); see also Glover, supra, at 

203, 121 S.Ct. 696 ("The Court explained last Term 

[in Williams ] that our holding in Lockhart does not 

supplant the Strickland analysis"). 

[ 15] Fretwell could not show Strickland prejudice resulting from his attorney's failure to object to 

the use of a sentencing factor the Eighth Circuit had 

erroneously (and temporarily) found to be impermissible. Fretwell, 506 U.S., at 373, 113 S.Ct. 838. 

Because the objection upon which his ineffectiveassistance-of-counsel claim was premised was meritless, Fretwell could not demonstrate an error entitling him to relief. The case presented the 

"unusual circumstance where the defendant attempts to demonstrate prejudice *1387 based on 

considerations that, as a matter of law, ought not inform the inquiry." Ibid. (O'Connor, J., concurring). 

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See also ibid. (recognizing "[t]he determinative 

question-whether there is a reasonable probability 

that, but for counsel's unprofessional errors, the result of the proceeding would have been different-remains unchanged" (internal quotation marks 

and citadon omitted)). It is for this same reason a 

defendant cannot show prejudice based on counsel's 

refusal to present perjured testimony, even if such 

testimony might have affected the outcome of the 

case. See Nix v. Whiteside, 475 U.S. 157, 175, 106 

S.Ct. 988,89 L.Ed.2d 123 (1986) (holding first that 

counsel's refusal to present perjured testimony 

breached no professional duty and second that it 

cannot establish prejudice under Strickland). 

[ 16] Both Fretwell and Nix are instructive in 

that they demonstrate "there are also situations in 

wl1ich it would be unjust to characterize the likelihood of a different outcome as legitimate 

'prejudice,' " Williams. supra, at 391-392, 120 

S.Ct. 1495, because defendants would receive a 

windfall as a result of the application of an incorrect legal principle or a defense strategy outside the 

law. Here, however, the injured client seeks relief 

from counsel's failure to meet a valid legal standard, not from counsel's refusal to violate it. He 

maintains that, absent ineffective counsel, he would 

have accepted a plea offer for a sentence the prosecution evidently deemed consistent with the 

sound administration of criminal justice. The favorable sent~_nce that eluded the defendant in the criminal proceeding appears to be the sentence he or 

others in his position would have received in the ordinary course, absent the failings of counsel. See 

Bibas, Regulating the Plea-Bargaining Market: 

From Caveat Emptor to Consumer Protection, 99 

Cal. L.Rev. 1117, 113 8 (20 II) ("The expected 

post-trial sentence is imposed in only a few percent 

of cases. It is like the sticker price for cars: only an 

ignorant,., ill-advised consumer would view full 

price as the norm and anything less a bargain"); see 

also Frye, ante, at 1386 -- 1387, 132 S.Ct. 1399. If a 

plea bargain has been offered, a defendant has the 

right to effective assistance of counsel in considering whether to accept it. If that right is denied, prejudice 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. 

[ 17]( 18] It is, of course, true that defendants 

have "no right to be offered a plea ... nor a federal 

right that the judge accept it." Frye, ante, at 1388 -

1389, 132 S.Ct. 1399. In the circumstances here, 

that is beside the point. If no plea offer is made, or 

a plea deal is accepted by the defendant but rejected 

by the judge, the issue raised here simply does not 

arise. Much the same reasoning guides cases that 

find criminal defendants have a right to effective 

assistance of counsel in direct appeals even though 

the Constitution does not require States to provide a 

system of appellate review at all. See Evitts, 469 

U.S. 387, 105 S.Ct. 830, 83 L.Ed.2d 821; see also 

Douglas v. Cal(fornia, 372 U.S. 353, 83 S.Ct. 814, 

9 L.Ed.2d 811 (1963). As in those cases, "[w]hen a 

State opts to act in a field where its action has significant discretionary elements, it must nonetheless 

act in accord with the dictates of the Constitution." 

Evitts, supra, at 40 l, I 05 S.Ct. 830. 

[ 19] Third, petitioner seeks to preserve the conviction obtained by the State by arguing that the 

purpose of the Sixth Amendment is to ensure "the 

reliability of [a] conviction following trial." Brief 

for Petitioner 13. This argument, too, fails to comprehend the full scope of the Sixth Amendment's 

protections; and it is refuted*1388 by precedent. 

Strickland recognized "(t]he benchmark for judging 

any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning 

of the adversarial process that the trial cannot be relied on as having produced a just result." 466 U.S., 

at 686, 104 S.Ct. 2052. The goal of a just result is 

not divorced from the reliability of a conviction, 

see United States v. Cronic, 466 U.S. 648, 658, 104 

S.Ct. 2039, 80 L.Ed.2d 657 (1984); but here the 

question is not the fairness or reliability of the trial 

but the fairness and regularity of the processes that 

preceded it, which caused the defendant to lose benefits he would have received in the ordinary 

/. 3\ 

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course but for counsel's ineffective assistance. 

[20] There are instances, furthermore, where a 

reliable trial does not foreclose relief when counsel 

has failed to assert rights that may have altered the 

outcome. In Kimmelman v. Morrison, 477 U.S. 365, 

I 06 S.Ct. 2574, 91 L.Ed.2d 305 ( 1986), the Court 

held that an attorney's failure to timely move to 

suppress evidence during trial could be grounds for 

federal habeas relief. The Court rejected the suggestion that the "failure to make a timely request 

for the exclusion of illegally seized evidence" could 

not be the basis for a Sixth Amendment violation 

because the evidence "is .'typically reliable and often the most probative information bearing on the 

guilt or innocence of the defendant.' " I d., at 379, 

106 S.Ct. 2574 (quoting Stone v. Powell, 428 U.S. 

465, 490, 96 S.Ct. 3037,49 L.Ed.2d 1067 (1976)). 

"The constitutional rights of criminal defendants," 

the Court observed,-· "are granted to the innocent 

and the guilty alike. Consequently, we decline to 

hold either that the guarantee of effective assistance 

of counsel belongs solely to the innocent or that it 

attaches only to matters affecting the determination 

of actual guilt." 477 U.S., at 380, 106 S.Ct. 2574. 

The same logic applies here. The fact that respondent is guilty does not mean he was not entitled by 

the Sixth Amendment to effective assistance or that 

he suffered no prejudice from his attorney's deficient performance during plea bargaining. 

In the end, petitioner's three arguments amount 

to one general contention: A fair trial wipes clean 

any deficient" performance by defense counsel during plea bargaining. That position ignores the reality that criminal justice today is for the most part a 

system of pleas, not a system of trials. Ninety-seven 

percent of federal convictions and ninety-four percent of state convictions are the result of guilty 

pleas. See Frye, ante, at 1386, 132 S.Ct. 1399. As 

explained in Frye, the 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. Ibid. ("[I]t is insufficient simply to point to 

the guarantee of a fair trial as a backstop that inoculates any errors in the pretrial process"). •. 

c 

Even if a defendant shows ineffective assistance of counsel has caused the rejection of a plea 

leading to a trial and a more severe sentence, there 

is the question of what constitutes an appropriate 

remedy. That question must now be addressed. 

[21] Sixth Amendment remedies sJ:wuld be 

"tailored to the injury suffered from the constitutional violation and should not unnecessarily infringe on competing interests." United States v. 

Morrison, 449 U.S. 361, 364, 101 S.Ct. 665, 66 

L.Ed.2d 564 (1981). Thus, a remedy must 

"neutralize the taint" of a constitutional violation, 

id., at 365, 101 S.Ct. 665, while at the same time 

not grant a windfall to the defendant or needlessly 

squander the considerable* 1389 resources~the State 

properly invested in the criminal prosecution. See 

Mechanik, 475 U.S., at 72, 106 S.Ct. 938 ("Thereversal of a conviction entails substantial social 

costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, 

energy, and other resources to repeat a trial that has 

already once taken place; victims may be asked to 

relive their disturbing experiences"). 

[22] The specific injury suffered by defendants 

who decline a plea offer as a result of ineffective 

assistance of counsel and then receive a greater sentence as a result of trial can come in at least one of 

two forms. In some cases, the sole advantage a defendant would have received under the plea is a 

lesser sentence. This is typically the case when the 

charges that would have been admitted as part of 

the plea bargain are the same as the charges the defendant was convicted of after trial. In this situation 

the court may conduct an evidentiary hearing to determine whether the defendant has shown a reason- . 

able probability that but for counsel's errors he· 

would have accepted the plea. If the showing is 

made, the court may exercise discretion in determining whether the defendant should receive the term 

of imprisonment the government offered in the 

52. 

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plea, the sentence he received at trial, or something 

in between. 

[23] In some situations it may be that resentencing alone will not be full redress for the constitutional injury. If, for example, an offer was for a 

guilty plea to a count or counts less serious than the 

ones for which a defendant was convicted after trial, or if a mandatory sentence confines a judge's 

sentencing discretion after trial, a resentencing 

based on"·the conviction at trial may not suffice. 

See, e.g., ·Williams, 571 F.3d, at I 088; Riggs v. 

Fairman, 399 F.3d 1179, 1181 (C.A.9 2005). In 

these circumstances, the proper exercise of discretion to remedy the constitutional injury may be to 

require the prosecution to reoffer the plea proposal. 

Once this has occurred, the judge can then exercise 

discretion in deciding whether to vacate the conviction from trial and accept the plea or leave the con- • 

viction undisturbed. 

In implementing a remedy in both of these situations, the trial court must weigh various factors; 

and the boundaries of proper discretion need not be 

defined here. Principles elaborated over time in decisions of state and federal courts, and in statutes 

and rules, will serve to give more complete guidance as to. the factors that should bear upon the exercise of the judge's discretion. At this point, 

however, it suffices to note two ~.:onsiderations that 

are of relevance. 

(24](25] First, a court may take account of a 

defendant's earlier expressed willingness, or unwillingness, to accept responsibility for his or her actions. Second, it is not necessary here to decide as a 

constitutional rule that a judge is required to prescind (that is to say disregard) any information concerning the crime that was discovered after the plea 

offer was made. The 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 offer, but that baseline can be 

consulted in finding a remedy that does not require 

the prose~ution to incur the expense of conducting 

a new trial. 

Petitioner argues that implementing a remedy 

here will open the floodgates to litigation by defendants seeking to unsettle their convictions. See 

Brief for Petitioner 20. Petitioner's concern is misplaced. Courts have recognized claims of this sort 

for over 30 years, see supra, at 1384- 1385, and 

yet there is no indication that *1390 the system is 

overwhelmed by these types of suits or that defendants are receiving windfalls as a result of strategically timed Strickland claims. See also Padilla, 559 

U.S., at--, 130 S.Ct. at 1484-1485 ("We confronted a similar 'floodgates' concern in Hill," but a 

"flood did not follow in that decision's wake"). In 

addition, the "prosecution and the trial courts may 

adopt some measures to help ensure against late, 

frivolous, or fabricated claims after a later, less advantageous plea offer has been accepted or after a 

trial leading to conviction." FlJ'e, ante, at 1408 -

1409, 132 S.Ct. 1399. See also ibid. (listing procedures currently used by various States). This, too, 

will help ensure against meritless claims. 

III 

[26] The standards for ineffective assistance of 

counsel when a defendant rejects a plea offer and 

goes to trial must now be applied to this case. Respondent brings a federal collateral challenge to a 

state-court conviction. Under AEDP A, a federal 

court may not grant a petition for a writ of habeas 

corpus unless the state court's adjudication on the 

merits was "contrary to, or involved an unreasonable application of, clearly established Federal law, 

as detertnined by the Supreme Court of the United 

States." 28 U.S.C. § 2254(d)(l ). 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." Williams v. 

Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 

L.Ed.2d 389 (2000) (opinion for the Court by 

O'Connor, J.). The Court of Appeals for the Sixth 

Circuit could not determine whether the Michigan 

Court of Appeals addressed respondent's ineffective-assistance-of-counsel claim or, if it did, "what 

the court decided, or even whether the correct legal 

rule was identified." 376 Fed.Appx., at 568-569. 

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[27] The state court's decision may not be quite 

so opaque as the Court of Appeals for the Sixth Circuit thought, yet the federal court was correct to 

note that AEDPA does not present a bar to granting 

respondent relief. That is because the Michigan 

Court of Appeals identified respondent's ineffective-assistance-of-counsel claim but failed to apply 

Strickland to assess it. Rather than applying Strickland, the state court simpiy found that respondent's 

rejection of the plea was knowing and voluntary. 

Cooper. 2005 WL 599740, *I, App. to Pet.. for 

Cert. 45a. An inquiry into whether the rejection of a 

plea is knowing and voluntary, however, is not the 

correct means by which to address a claim of ineffective assistance of counsel. See Hill, 474 U.S., at 

57-59, 106 S.Ct. at 370 (applying Strickland to assess a claim of ineffective assistance of counsel 

arising out of the plea negotiation process). After 

stating the incorrect standard, moreover, the state 

court then made an irrelevant observation about 

counsel's performance at trial and mischaracterized 

respondent's claim as a complaint that his attorney 

did not obtain a more favorable plea bargain. By 

failing to apply Strickland to assess the ineffectiveassistance-of-counsel claim respondent raised, the 

state court's adjudication was contrary to clearly established federal law. And in that circumstance the 

federal courts in this habeas action can determine 

the principles necessary to grant relief. See Panetti 

v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, 

168 L.Ed.2d 662 (2007). 

Respondent has satisfied Strickland 's two-part 

test. Regarding performance, perhaps it could be 

accepted that it is unclear whether respondent's 

counsel believed respondent could not be convicted 

for assault with intent to murder as a matter of law 

because the shots hit Mundy below the waist, or 

whether he simply *1391 thought this would be a 

persuasive argument to make to the jury to show 

lack of specific intent. And, as the Court of Appeals 

for the Sixth Circuit suggested, an erroneous strategic prediction about the outcome of a trial is not 

necessarily deficient performance. Here, however, 

the fact of deficient performance has been conceded 

by all parties. The case comes to us on that assumption, so there is no need to address this question. 

[28] As to prejudice, respondent has shown that 

but for counsel's deficient performance there is a 

reasonable probability he and the trial court would 

have accepted the guilty plea. See 376 Fed.Appx., 

at 571-572. In addition, as a result of not accepting 

the plea and being convicted at trial, respondent received a minimum sentence 3 & half; times greater 

than he would have received under the plea. The 

standard for ineffective assistance under Strickland 

has thus been satisfied. 

"" [29] As a remedy, the District Court ordered 

specific performance of the original plea agreement. The correct remedy in these. circumstances, 

however, is to order the State to reoffer the plea 

agreement. Presuming respondent accepts the offer, 

the state trial court can then exercise its discretion 

in determining whether to vacate the convictions 

and resentence respondent pursuant to the plea 

agreement, to vacate only some of the convictions 

and resentence respondent accordingly, or to leave 

the convictions and sentence from trial undisturbed. 

See Mich. ·ct. Rule 6.302(C)(3) (20 II) ("If there is 

a plea agreement and its terms provide for the defendant's plea to be made in exchange for a specific 

sentence disposition or a prosecutorial sentence recommendation, the court may ... reject the agreement"). Today's decision leaves open t~'- the trial 

court how best to exercise that discretion in all the 

circumstances of the case. 

The judgment of the Court of Appeals for the 

Sixth Circuit is vacated, and the case is remanded 

for further proceedings consistent with this opinion. 

It is so ordered. 

Justice SCALIA, with whom Justice THOMAS 

joins, and with whom THE CHIEF JUSTICE joins 

as to all but Part IV, dissenting. 

"If a plea bargain has been offered, a defendant 

has the right to effective assistance of counsel in 

considering whether to accept it. If that right is 

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denied, prejudice can be shown if loss of the plea 

opportuni(V led to a trial resulting in a conviction 

on more serious charges or the imposition of a 

more severe sentence. "Ante, at 1387. 

"The inquiry' then becomes how to define the 

duty and responsibilities of defense counsel in the 

plea bargain process. This is a difficult question 

.... Bargaining is, by its nature, defined to a substantial degree by personal style.... This case 

presents neither the necessity nor the occasion to 

define the duties of defense .counsel in those respects .... " Missouri v. Frye, ante, at 1408, 132 

S.Ct. 1399. 

With those words from this and the companion 

case, the. Court today opens a whole new field of 

constitutionalized criminal procedure: pleabargaining law. The ordinary criminal process has 

become too long, too expensive, and unpredictable, 

in no small part as a consequence of an intricate 

federal Code of Criminal Procedure imposed on the 

States by this Court in pursuit of perfect justice. 

See Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L.Rev. 929 ( 1965). The 

Court now moves to bring perfection to the alternative in which prosecutors and *1392 defendants 

have sought relief. Today's opinions deal with only 

two aspects of counsel's plea-bargaining inadequacy, and leave other aspects (who knows what 

they might be?) to be worked out in further constitutional litigation that will burden the criminal process. And it would be foolish to think that 

"constitutional" rules governing counsel's behavior 

will not be followed by rules governing the prosecution 's behavior in the plea-bargaining process that 

the Court today announces " 'is the criminal justice 

system,' " Frye, ante, at 1407, 132 S.Ct. 1399 

(quoting approvingly from Scott & Stuntz, Plea 

Bargaining as Contract, 101 Yale L.J. 1909, 1912 

(1992) (hereinafter Scott)). Is it constitutional, for 

example, for the prosecution to withdraw a plea offer that h~s already been accepted? Or to withdraw 

an offer before the defense has had adequate time to 

consider and accept it? Or to make no plea offer at 

all, even though its case is weak-thereby excluding the defendant from "the criminal justice system"? 

Anthony Cooper received a full and fair trial, 

was found guilty of all charges by a unanimous 

jury, and was given the sentence that the law prescribed. The Court nonetheless concludes that 

Cooper is entitled to some sort of habeas corpus relief (perhaps) because his attorney's allegedly incompetent advice regarding a plea offer caused hi·m 

to receive a full and fair trial. That conclusion is 

foreclosed by our precedents. Even if it were not 

foreclosed, the constitutional right to effective pleabargainers that it establishes is at least a new rule of 

law, which does not undermine the Michigan Court 

of Appeals' decision and therefore cannot serve as 

the basis for habeas relief. And the remedy the 

Court announces-namely, whatever the state trial 

court in its discretion prescribes, down to and including no remedy at all-is unheard-of and quite 

absurd for violation of a constitutional right. I respectfully dissent. 

This case and its companion, Missouri v. F1ye, 

-U.S.--, 132 S.Ct. 1399,- L.Ed.2d --, 

raise relatively straightforward questions about the 

scope of the right to effective assistance of counsel. 

Our case law originally derived that right from the 

Due Process Clause, and its guarantee of a fair trial, 

see United States v. Gonzalez-Lopez, 548 U.S. 140, 

147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006), but 

the seminal case of Strickland \'. Washington, 466 

U.S. 668, I 04 S.Ct. 2052, 80 L.Ed.2d 674 (1984), 

located the right within the Sixth Amendment. As 

the Court notes, ante, at 1394, the right to counsel 

does not begin at trial. It extends to "any stage of 

the prosecution, formal or informal, in court or out, 

where counsel's absence might derogate from the 

accused's right to a fair trial." United States v. 

Wade, 388 U.S. 218, 226, 87 S.Ct. 1926, 18 

L.Ed.2d 1149 (1967). Applying that principle, we 

held that the "entry of a guilty plea, whether to a 

misdemeanor or a felony charge, ranks as a 'critical 

·,-·;!. ·;' 

3 ... ~··"·'· . ~ ,. I 

. '· '/ ' 

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stage' at which the right to counsel adheres." Iowa 

''· Tovar, 541 U.S. 77, 81, 124 S.Ct. 1379, 158 

L.Ed.2d 209 (200~); see also Hill v. Lockhart, 474 

U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). 

And it follows from this that acceptance of a plea 

offer is a critical stage. That, and nothing more, is 

the point of the Court's observation in Padilla v. 

Kentucky, 559 U.S. --, --, 130 S.Ct. 1473, 

1486, 176 L.Ed.2d 284 (20 10), that "the negotiation 

of a plea bargain is a critical phase of litigation for 

purposes of the Sixth Amendment right to effective 

assistance of counsel." The defendant in Padilla 

had accepted the plea bargain and pleaded guilty, 

abandoning his right to a fair trial; he was entitled 

to advice of competent counsel before he did *1393 

so. The Court has never held that the rule articulated in Padilla, Tovar, and Hill extends to all aspects of plea negotiations, requiring not just advice 

of competent counsel before the defendant accepts 

a plea bargain and pleads guilty, but also the advice 

of competent counsel before the defendant rejects a 

plea bargain and stands on his constitutional right 

to a fair trial. The latter is a vast departure from our 

past cases, protecting not just the constitutionally 

prescribed right to a fair adjudication of guilt and 

punishment, but a judicially invented right to effective plea bargaining. 

It is also apparent from Strickland that bad plea 

bargaining has nothing to do with ineffective assistance of counsel in the constitutional sense. Strickland explained that "[i]n giving meaning to the requirement [of effective assistance], ... we must take 

its purpose-to ensure a fair trial-as the guide.". 

466 U.S., at 686, I 04 S.Ct. 2052. Since "the right to 

the effective assistance of counsel is recognized not 

for its own sake, but because of the effect it has on 

the ability of the accused to receive a fair trial," 

United Stales v. Cronic, 466 U.S. 648, 658, 104 

S.Ct. 2039, 80 L.Ed.2d 657 ( 1984), the 

"benchmark" inquiry in evaluating any claim of ineffective assistance is whether counsel's performance "so undermined the proper functioning of the 

adversarial process" that it failed to produce a reliably "just result." Strickland, 466 U.S., at 686, l 04 

S.Ct. 2052. That is what Strickland 's requirement 

of "prejudice" consists of: Because the right to effective assistance has as its purpose the assurance 

of a fair trial, the right is not infringed unless counsel's mistakes call into question the basic justice of 

a defendant's conviction or sentence. That has been, 

until today, entirely clear. A defendant must show 

"that counsel's errors were so serious as to deprive 

the defendant of a fair trial, a trial whose result is 

reliable." !d., at 687, 104 S.Ct. 2052. See also 

Gonzalez-Lopez, supra, at 147, 126 S.Ct. 2557. 

Impairment of fair trial is how we distinguish 

between unfortunate attorn_ey error and error of . . I . 'fi FNl const1tut10na signi Jcance. 

FN 1. Rather than addressing the constitutional origins of the right to e.ffedive counsel, the Court responds to the broader 

claim (raised by no one) that "the sole purpose of the Sixth Amendment is to protect 

the right to a fair trial." Ante, at 1385 

(emphasis added). Cf. Brief for United 

States as Amicus Curiae 10-12 (arguing 

that the "purpose of the Sixth Amendment 

right to counsel is to secure a lair trial" 

(emphasis added)); Brief for Petitioner 

12-21 (same). To destroy that straw man, 

the Court cites cases in which violations of 

rights other than the right to effective 

counsel-and, perplexingly, even rights 

found outside the Sixth Amendment and 

the Constitution entirely-were not cured 

by a subsequent trial. Vasquez v. Hillery, 

474 U.S. 254, 106 S.Ct. 617, 88- L.Ed.2d 

598 (1986) (violation of equal protection 

in grand jury selection); Ballard v. United 

States, 329 U.S. 187, 67 S.Ct. 261, 91 

L.Ed. 181 (1946) (violation of statutory 

scheme providing that women serve on juries); Stirone v. United States, 361 U.S. 

212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) 

(violation of Fifth Amendment ri¥ht to indictment by grand jury). Unlike the right to 

effective counsel, no showing of prejudice 

is required to make violations of the rights 

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

at issue m Vasquez, Ballard, and Stirone 

complete. See Vasquez. supra. at 263-264, 

I 06 S.Ct. 617 ("[D]iscrimination in the 

grand jury undermines the structural integrity of the criminal tribunal itself, and is 

not amenable to harmless-error review"); 

Ballard, supra, at 195, 67 S.Ct. 261 

("[R]eversible error does not depend on a 

showing of prejudice in an individual 

case"); Stirone, supra, at 217, 80 S.Ct. 270 

("Deprivation of such a basic right is far 

too serious to be 'treated as nothing more 

than a variance and then dismissed as 

harmless error"). Those cases are thus irrelevant to the question presented here, 

which is whether a defendant can establish 

prejudice under Strickland v. Washington, 

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674 ( 1984), while conceding the fairness 

of his conviction, sentence, and appeal. 

*1394 To be sure, Strickland stated a rule of 

thumb for measuring prejudice which, applied 

blindly and out of context, could support the 

Court's holding today: "The defendant must show 

that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the 

proceeding would have been different." 466 U.S., at 

694, I 04 S.Ct. 2052. Strickland itself cautioned, 

however, that its test was not to be applied in a 

mechanical fashion, and that courts were not to divert their "ultimate focus" from "the fundamental 

fairness of the proceeding whose result is being 

challenged." !d., at 696, 104 S.Ct. 2052. And until 

today we have followed that course. 

In Lockhart v. Fretwell, 506 U.S. 364, 113 

S.Ct. 838, 122 L.Ed.2d 180 ( 1993), the deficient 

performance at issue was the failure of counsel for 

a defendant who had been sentenced to death to 

make an objection that would have produced a sentence of life imprisonment instead. The. objection 

was fully supported by then-extant Circuit law, so 

that the sentencing court would have been compelled to sustain it, producing a life sentence that 

principles of double jeopardy would likely make final. See id.. at 383-385, 113 S.Ct. 838 (STEVENS, 

J., dissenting); Bullington v. Missouri, 451 U.S. 

430, 101 S.Ct. 1852,68 L.Ed.2d 270 (1981). By the 

time Fretwell's claim came before us, however, the 

Circuit law had been overruled in light of one of 

our cases. We determined that a prejudice analysis 

"focusing solely on mere outcome determination, 

without attention to whether the result of the proceeding was fundamentally unfair or unreliable," 

would be defective. Fretwell. 506 U.S., at 369, 113 

S.Ct. 838. Because counsel's error did not "deprive 

the defendant of any substantive or procedural right 

to which the law entitles him," the defendant's sentencing proceeding was fair and its result was reliable, even though counsel's error may have affected 

its outcome. !d., at 372, 113 S.Ct. 838. In Williams 

v. Taylor, 529 U.S. 362, 391-393, 120 S.Ct. 1495, 

146 L.Ed.2d 389 (2000), we explained that even 

though Fretwell did not mechanically apply an outcome-based test for prejudice, its reasoning was 

perfectly consistent with Strickland. "Fretwell's 

counsel had not deprived him of any substantive or 

procedural right to which the law entitled him." 529 

U.S. at 392, 120 S.Ct. l495.FN2 

FN2. Kimmelman v. Morrison, 477 U.S. 

365, l 06 S.Ct. 2574, 91 L.Ed.2d 305 

( 1986), cited by the Court, ante, at 1396 -

1397, does not contradict this principle. 

That case, which predated Fretwell and 

Williams, considered whether our holding 

that Fourth Amendment claims fully litigated in state court cannot be raised in federal habeas "should be extended to Sixth 

Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel's failure to file a 

timely motion to suppress evidence allegedly obtained in violation of the Fourth 

Amendment." 477 U.S., at 368, 106 S.Ct. 

2574. Our negative answer to that question 

had nothing \O do with the issue here. The 

parties in Kimmelman had not raised the 

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

question "whether the admission of illegally seized but reliable evidence can ever 

constitute 'prejudice' under Strickland 

"-a question similar to the one presented 

here-and the Court therefore did not address it. !d., at 391, I 06 S.Ct. 2574 

(Powell, J., concurring in judgment); see 

also id., at 380, 106 S.Ct. 2574. Kimmelman made clear, however, how the answer 

to that question is to be determined: "The 

essence of an ineffective-assistance claim 

is that counsel's unprofessional errors so 

upset the adversarial balance between defense and prosecution that the trial was 

rendered unfair and the verdict rendered 

suspect, " id., at 374, 106 S.Ct. 2574 

(emphasis added). "Only those habeas petitioners who can prove under Strickland 

that they have been denied a fair trial ... 

will be granted the writ," id., at 382, I 06 

S.Ct. 2574 (emphasis added). In short, 

Kimmelman 's only relevance is to prove 

the Court's opinion wrong. 

Those precedents leave no doubt about the answer to the question presented here. *1395 As the 

Court itself observes, a criminal defendant has no 

right to a plea bargain. Ante, at 1395 - 1396. 

"[T]here is no constitutional right to plea bargain; 

the prosecutor need not do so if he prefers to go to 

trial." Weatherford v. Bursey, 429 U.S. 545, 561, 97 

S.Ct. 83 7, 51 L.Ed.2d 30 (1977). Counsel's mistakes in this case thus did not "deprive the defendant of a substantive or procedural right to which the 

law entitles him," Williams, supra, at 393, 120 

S.Ct. 1495. Far from being "beside the point," ante, 

at 1406, that is critical to correct application of our 

precedents. Like Fretwell, this case "concerns the 

unusual circumstance where the defendant attempts 

to demonstrate prejudice based on considerations 

that, as a matter of law, ought not inform the inquiry," 506 U.S., at 373, 113 S.Ct. 838 (O'Connor, 

1., concurring); he claims "that he might have been 

denied 'a right the law simply does not recognize,' 

" id., at 375, 113 S.Ct. 838 (same). Strickland, 

Fretwell, and Williams all instruct that the pure outcome-based test on which the Court relies is an erroneous measure of cognizable prejudice. In ignoring Strickland 's "ultimate focus ... on the fundamental fairness of the proceeding whose result is 

being challenged," 466 U.S., at 696, I 04 S.Ct. 

2052, the Court has lost the forest for the trees, 

leading it to accept what we have previously rejected, the "novel argument that constitutional rights 

are infringed by trying the defendant rather than accepting his plea of guilty." Weatherford, ~supra, at 

561, 97 S.Ct. 837. 

II 

Novelty alone is the second, independent reason why the Court's decision is wrong. This case 

arises on federal habeas, and hence is governed by 

the Antiterrorism and Effective Death Penalty Act 

of 1996 (AEDPA). Since, as the Court .. acknowledges, the Michigan Court of Appeals adjudicated 

Cooper's ineffective-assistance claim on the merits, 

AEDP A bars federal courts from granting habeas 

relief unless that 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." 28 U.S.C. § 

2254(d)( I). Yet the Court concludes that § 

2254(d)(l) does not bar relief here, because "[b]y 

failing to apply Strickland to assess the ineffectiveassistance-of-counsel claim respondent raised, the 

state court's adjudication was contrary to clearly established federal law." Ante, at 1390. That is not so. 

The relevant portion of the Michigan Court of 

Appeals decision reads as follows: 

"To establish ineffective assistance, the defendant must demonstrate that his counsel's performance fell below an objective standard of reasonableness and that counsel's representation so prejudiced the defendant that he was deprived of a 

fair trial. With respect to the prejudice aspect of 

the test, the defendant must demonstrate a reasonable probability that, but for counsel's errors, 

the result of the proceedings would ~.11ve been 

different, and that the attendant proceedings were 

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(Cite as: 132 S.Ct. 1376) 

fundamentally unfair and unreliable. 

"Defendant challenges the trial court's finding 

after a Ginther hearing that defense counsel 

provided effective assistance to defendant during 

the plea bargaining process. He contends that defense counsel failed to convey the benefits of the 

plea offer to him and ignored his desire to plead 

guilty, and that these failures led him to reject a 

plea offer that he now wishes to accept. However, 

the record shows that defendant knowingly and 

intelligently rejected two plea offers and chose to 

go to trial. The record fails to support defendant's 

contentions that defense counsel's *1396 representation was ineffective because he rejected a defense based on [a] claim of self-defense and because he did not obtain a more favorable plea 

bargain for defendant." People v. Cooper, No. 

250583 (Mar. 15, 2005), App. to Pet. for Cert. 

45a, 2005 WL 599740, [at] * 1 (per curiam) 

(footnote and citations omitted). 

The first paragraph above, far from ignoring 

Strickland, recites its standard with . a good deal 

more accuracy than the Court's opinion. The second 

paragraph, which is presumably an application of 

the standard recited in the first, says that "defendant 

knowingly and intelligently rejected two plea offers 

and chose to go to trial." This can be regarded as a 

denial that there was anything "fundamentally unfair" about Cooper's conviction and sentence, so 

that no Strickland prejudice had been shown. On 

the other hand, the entire second paragraph can be 

regarded as a contention that Cooper's claims of inadequate representation were unsupported by the 

record. The state court's analysis was admittedly 

not a model of clarity, but federal habeas corpus is •< 

a "guard against extreme malfunctions in the state 

criminal justice systems," not a license to penalize 

a state court for its opinion-writing technique. Harrington v. Richter, 562 U.S. --, --, 131 S.Ct. 

770, 786, 178 L.Ed.2d 624 (20 11) (internal quotation marks omitted). The Court's readiness to find 

error in the Michigan court's opmwn is 

"inconsistent with the presumption that state courts 

know and follow the law," Wooqford v. Visciotti, 

537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 

(2002) (per curiam), a presumption borne out here 

by the state court's recitation of the correct legal 

standard. 

Since it is ambiguous whether the state court's 

holding was based on a lack of prejudice or rather 

the court's factual determination that there had been 

no deficient perfonnance, to provide relief under 

AEDP A this Court must conclude that both holdings would have been unreasonable applications of 

clearly established law. See Premo v. Moore, 562 

U.S. --, --, 131 S.Ct. 733, 740-741, 178 

L.Ed.2d 649 (20 II). The first is impossible of doing, since this Court has never held that a defendant 

in Cooper's position can establish Strickland prejudice. The Sixth Circuit thus violated AEDPA in 

granting habeas relief, and the Court now does the 

same. 

III 

It is impossible to conclude discussion of 

today's extraordinary opinion without commenting 

upon the remedy it provides for the unconstitutional 

conviction. It is a remedy unheard-of in American 

jurisprudence-and, I would be willing to bet, in 

the jurisprudence of any other country. 

The Court requires Michigan to "reoffer the 

plea agreement" that was rejected because of bad 

advice from counsel. Ante, at 1391. That would indeed be a powerful remedy-but for the fact that 

Cooper's acceptance of that reoffered agreement is 

not conclusive. Astoundingly, "the state trial court 

can then exercise its discretion in determining 

whether to vacate the convictions and resentence 

respondent pursuant to the plea agreement, to vacate only some of the convictions and resentence 

respondent accordingly, or to leave the convictions 

and sentence from -trial undisturbed. " Ibid. 

(emphasis added). 

Why, one might ask, require a "reoffer" of the 

plea agreement, and its acceptance by the defendant? If the district court finds (as a necessary ele-

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

ment, supposedly, of Strickland prejudice) that 

Cooper would have accepted the original offer, and 

would thereby have avoided trial and conviction, 

why not skip the reoffer-and-reacceptance minuet 

and simply leave it to the *1397 discretion of the 

state trial court what the remedy shall be? The answer, of course, is camouflage. Trial courts, after 

all, regularly accept or reject plea agreements, so 

there seems to be nothing extraordinary about their 

accepting or rejecting the new one mandated by 

today's decision. But the acceptance or rejection of 

a plea agreement that has no status whatever under 

the United States Constitution is worlds apart from 

what this is: "discretionary" specification of a remedy for an unconstitutional criminal conviction. 

To be sure, the Court asserts that there are 

"factors" which bear upon (and presumably limit) 

exercise of this discretion-factors that it is not 

prepared to specify in full, much less assign some 

determinative weight. "Principles elaborated over 

time in decisions of state and federal courts, and in 

statutes and rules" will (in the Court's rosy view) 

sort all that out. Ante, at 1389. I find it extraordinary that "statutes and rules" can specify the remedy 

for a criminal defendant's unconstitutional conviction. Or that the remedy for an unconstitutional 

conviction should ever be subject at all to a trial 

judge's discretion. Or, finally, that the remedy 

could ever include no remedy at all. 

I suspect that the Court'~ squeamishness in 

fashioning a remedy, and the incoherence of what it 

comes up with, is attributable to its realization, 

deep down, that there is no real constitutional violation here anyway. The defendant has been fairly 

tried, lawfully convicted, and properly sentenced, 

and any "remedy" provided for this will do nothing 

but undo the just results of a fair adversarial process. 

IV 

In many-perhaps most-countries of the 

world, American-style plea bargaining is forbidden 

in cases as serious as this one, even for the purpose 

of obtaining testimony that enables conviction of a 

greater malefactor, much less for the purpose of 

sparing the expense of trial. See, e.g., World Plea 

Bargaining 344, 363-366 (S. Thaman ed. 20 10). In 

Europe, many countries adhere to what t,hey aptly 

call the "legality principle" by requiring prosecutors to charge all prosecutable offenses, which is 

typically incompatible with the practice of chargebargaining. See, e.g., id., at xxii; Langbein, Land 

Without Plea Bargaining: How the Germans Do It, 

78 Mich. L.Rev. 204, 210-211 (1979) (describing 

the "Legalita~sprinzip," or rule of compulsory prosecution, in Germany). Such a system reflects an 

admirable belief that the law is the law, and those 

who break it should pay the penalty provided. 

In the United States, we have plea bargaining 

a-plenty, but until today it has been regarded as a 

necessary evil. It presents grave risks of prosecutorial overcharging that effectively compels an innocent defendant to avoid massive risk by pleading 

guilty to a lesser offense; and for guilty defendants 

it often-perhaps usually-results in a~ sentence 

well below what the law prescribes for the actual 

crime. But even so, we accept plea bargaining because many believe that without it our long and expensive process of criminal trial could not sustain 

the burden imposed on it, and our system of criminal justice would grind to a halt. See, e.g., Alschuler, 

Plea Bargaining and its History, 79 Colum. L.Rev. 

I, 38 (1979). 

Today, however, the Supreme Court of the 

United States elevates plea bargaining from a necessary evil to a constitutional entitlement. It is no 

longer a somewhat embarrassing adjunct to our 

criminal justice system; rather, as the Court announces in the companion case to this one, " 'it is 

the criminal justice system.' " Frye,Jante, at 1407, 

132 S.Ct. 1399 (quoting approvingly fr.om Scott 

1912). Thus, even *1398 though there is no doubt 

that the respondent here is guilty of the offense 

with which he was charged; even though he has received the exorbitant gold standard of American 

justice_:__a full-dress criminal trial with its innumerable constitutional and statutory limitations upon 

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

the evidence that the prosecution can briM forward, 

and (in Michigan as in most States F ) the requirement of a unanimous guilty verdict by impartial jurors; the Court says that his conviction is invalid because he was deprived of his constitutional 

entitlement to plea-bargain. 

FN3. See People v. Cooks, 446 Mich. 503, 

510, 521 N.W.2d 275, 278 (1994); 6 W. 

LaFave, J. Israel, N. King, & 0. Kerr, 

Criminal Procedure§ 22.1(e) (3d ed. 2007 

and Supp. 2011-2012). 

I am less saddened by the outcome of this case 

than I am by what it says about this Court's attitude 

toward criminal justice. The Court today embraces 

the sportiilg-chance theory of criminal law, in 

which the State functions like a conscientious 

casino-operator, giving each player a fair chance to 

beat the house, that is, to serve less time than the 

law says he deserves. And when a player is excluded from the tables, his constitutional rights 

have been violated. I do not subscribe to that theory. No one should, least of all the Justices of the 

Supreme Court. 

* * * 

Today's decision upends decades of our cases, 

violates a federal statute, and opens a whole new 

boutique of constitutional jurisprudence 

("plea-bargaining law") without even specifying the 

remedies the boutique offers. The result in the 

present case is the undoing of an adjudicatory process that worked exactly as it is supposed to. Released felon Anthony Cooper, who shot repeatedly 

and gravely injured a woman named Kali Mundy, 

was tried and convicted for his crimes by a jury of 

his peers, and given a punishment that Michigan's 

elected representatives have deemed appropriate. 

Nothing about that result is unfair or unconstitutional. To the contrary, it is wonderfully just, and 

infinitely., superior to the trial-by-bargain that 

today's opinion affords constitutional status. I respectfully dissent. 

Justice AUTO, dissenting. 

For the reasons set out in Parts I and II of 

Justice SCALIA's dissent, the Court's holding in 

this case misapplies our ineffective-assistance-of-counsel case law and violates the requirements of the Antiterrorism and Effective Death 

Penalty Act of 1996. Respondent received a trial 

that was free of any identified constitutional error, 

and, as a result, there is no basis for concluding that 

respondent suffered prejudice and certainly not for 

granting habeas relief. 

The weakness in the Court's analysis is highlighted by its opaque discussion of the remedy that 

is appropriate when a plea offer is rejected due to 

defective legal representation. If a defendant's Sixth 

Amendment rights are violated when deficient legal 

advice about a favorable plea offer causes the opportunity for that bargain to be lost, the only logical 

remedy is to give the defendant the benefit of the 

favorable deal. But such a remedy would cause serious injustice in many instances, as I believe the 

Court tacitly recognizes. The Court therefore eschews the only logical remedy and relies on the 

lower courts to exercise sound discretion in determining what is to be done. 

Time will tell how this works out. The Court, 

for its part, finds it unnecessary to define "the 

boundaries of proper discretion" in today's opinion. 

Ante, at 1389. In my view, requiring the prosecution to renew* 1399 an old plea offer would represent an abuse of discretion in at least two circumstances: first, when important new information 

about a defendant's culpability comes to light after 

the offer is rejected, and, second, when the rejection of the plea offer results in a substantial expenditure of scarce prosecutorial or judicial resources. 

The lower court judges who must implement 

today's holding may-and I hope, will-do so in a 

way that mitigates its potential to produce unjust 

resi.1lts. But I would not depend on these judges to 

come to the rescue. The Court's interpretation of the 

Sixth Amendment right to counsel is unsound, and I 

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23 Fla. L. Weekly Fed. S 203 

(Cite as: 132 S.Ct. 1376) 

therefore respectfully dissent. 

U.S.,2012. 

Lafler v. Cooper 

132 S.Ct. 1376, 182 L.Ed.2d 398, 80 USLW 4244, 

12 Cal. Daily Op. Serv. 3299, 2012 Daily Journal 

D.A.R. 3726, 23 Fla. L. Weekly Fed. S 203 

END OF DOCUMENT 

©2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
Ex Parte Moussazadeh 

361 S.W. 3d 684 (T~x. Grim. App. February 15, 2012) 

( 11 PAGES ) 
we5iiaw. 

361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

Court of Criminal Appeals of Texas. 

Ex parte Max MOUSSAZADEH, Applicant. 

Nos. AP-76,439, AP-74,185. 

Feb. 15,2012. 

Backgro~nd: After pleading guilty to murder, and 

after his murder conviction was affirmed on appeal, 

962 S.W.2d 261, applicant sought a writ of habeas 

corpus, contending that his mistaken understanding 

of parole eligibility based on misinformation counsel conveyed to him rendered his guilty plea involuntary. The 232nd District Court, Harris County, 

A.D. Azios, J., entered findings of fact supporting 

relief. The Court of Criminal Appeals, 64 S.W.3d 

404, denied relief. Applicant filed subsequent 

habeas application, and a suggestion for reconsideration asking the Court of Criminal Appeals, on its 

own motion, to reconsider its denial of initial 

habeas appiication. 

Holdings: The Court of Criminal Appeals, Johnson 

, J., held that: 

(I) it would reconsider, on its own initiative, applicant's initial habeas application; 

(2) question of whether parole eligibility forms an 

affirmative:' part or essential element of the plea 

agreement is not determinativ-e of court's deficient 

performance inquiry under Strickland; abrogating, 

Ex parte Evans, 690 S.W.2d.l74; 

(3) counsel's misinformation to defendant as to his 

parole eligibility constituted deficient performance; 

and 

(4) counsel's error prejudiced defendant, and thus 

was ineffective assistance. 

Relief granted upon reconsideration. 

Keller, P.J., concurred in judgment, with opinion. 

West Headnotes 

Page I 

[1]. Habeas Corpus 197 ~899 

197 Habeas Corpus 

197IV Operation and Effect of Determination; 

Res Judicata; Successive Proceedings 

197k899 k. Dismissal or hearing on successive petitions; evidence. Most Cited Cases 

Court of Criminal Appeals would reconsider, 

on its own initiative, applicant's initial application 

for writ of habeas corpus, which the Court had previously denied, and, thus, would dismiss applicant's 

subsequent habeas application. Rules App.Proc., 

Rule 79.2(d). 

[21 Habeas Corpus 197 ~894.1 

197 Habeas Corpus 

197IV Operation and Effect of Determination; 

Res Judicata; Succe~sive Proceedings 

197k894 Refusal to Discharge; Subsequent 

Applications; Prejudice 

197k894.1 k. In general. Most Cited 

Cases ... 

An initial application for a writ of habeas corpus seeking an out-of-time appeal does not constitiite a challenge to the conviction and does not bar 

subsequent writ applications. 

[31 Criminal Law 110 ~273.1(3) 

II 0 Criminal Law 

IIOXV Pleas 

l!Ok272 Plea of Guilty 

II Ok273.1 Voluntary Character 

l!Ok273.1(3) k. Effect of illegal detention or violation of constitutional rights; illegally 

acquired evidence. Most Cited Cases 

Counsel's. advice can provide assistance so in~ 

effective that it renders a guilty plea involuntary. 

U.S.C.A. Const.Amend; 6. 

[4] Criminal Law 110 ~273.1(3) 

II 0 Ciiminal Law 

IIOXV Pleas 

·--.,._. 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

II Ok272 Plea of Guilty 

11 Ok273 .I Voluntary Character 

11 Ok273.1 (3) k. Effect of illegal detention or violation of constitutional rights; illegally 

acquired evidence. Most Cited Cases 

A guilty plea is not knowing or voluntary if 

made as a result of ineffective assistance of counsel. U.S.C.A. Const.Amend. 6. 

[5] Criminal Law 110 ~273.1(3) 

11 0 Criminal Law 

IIOXV Pleas 

11 Ok272 Plea of Guilty 

110k273.1 Voluntary Character 

II Ok273.1 (3) k. Effect of illegal detention or violation of constitutional rights; illegally 

acquired evidence. Most Cited Cases 

A defendant's decision to plead guilty when 

based upon erroneous advice of counsel is not done 

voluntarily and knowingly. 

[6) Pardon and Parole 284 ~42.1 

284 Pardon and Parole 

284II Parole 

284k42 Constitutional and Statutory Provisions 

284k42.l k. In general. Most Cited Cases 

Prisons 310 ~248 

310 Prisons 

31 OII Prisoners and Inmates 

31 OII(F) Duration of Confinement 

31 Ok248 k. Conditional release; community placement. Most Cited Cases 

The statute in effect when the.holding offense 

is committed determines an inmate's eligibility for 

release on mandatory supervision or parole. 

[7] Pardon and Parole 284 ~48.1 

284 Pardon and Parole 

284II Parole 

284k48 Eligibility for Parole or Parole Consideration 

Page 2 

284k48.1 k. In general. Most Cit€d Cases 

Parole eligibility requirements are direct consequences of a guilty plea because they are a definite and largely automatic result of a guilty plea. 

[8] Pardon and Parole 284 €:=47 

284 Pardon and Parole 

284II Parole 

284k45 Authority or Duty to Grant~Parole or 

Parole Consideration 

284k47 k. Discretionary nature. Most 

Cited Cases 

Parole attainment is not governed by statute 

and is granted at the discretion of the parole board. 

[9] Constitutional Law 92 €:;:::>2789 

92 Constitutional Law 

92XXIII Ex Post Facto Prohibitions 

92XXIII(A} Constitutional Prohibitions in 

General 

92k2789 k. Penal laws in general. Most 

Cited Cases 

Constitutional Law 92 ~2790 

92 Constitutional Law 

92XXIII Ex Post Facto Prohibitions 

92XXIII(A) Constitutional Prohibitions in 

General 

92k2790 k. Punishment in general. Most 

Cited Cases 

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To obtain habeas corpus relief on a claim of involuntary plea based on counsel's erroneous advice, 

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undermine the court's confidence in the result, that 

the outcome would have been different but for 

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level of reasonableness is defined by the practices 

and expectations of the legal community and prevailing professional norms therein. U.S.C.A. 

Const.Amend. 6. 

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In situations in which the law is not clear, plea 

counsel should advise a client that pending criminal 

charges may carry a risk of other serious con- , 

sequences; however, when a serious consequence is 

truly clear, counsel has an equally clear duty to give 

correct advice, and both failure to provide correct 

information and providing incorrect information violate that duty. 

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Defense counsel's misinformation to murder 

defendant as to his parole eligibility, on which defendant relied in pleading guilty, constituted deficient performance, as element of ineffective assistance; parole eligibility requirements were presumptively mandatory, and counsel provided incor-
361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

rect advice. U.S.C.A. Const.Amend. 6; Vernon's 

Ann.Texas C.C.P. art. 42.18(8)(b)(3) (Repealed). 

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ll Ok 1920 k. Plea. Most Cited Cases 

Defense counsel's misinformation to murder 

defendant as to his parole eligibility, on which defendant relied in pleading guilty, prejudiced defendant, and thus was ineffective assistance; portion of defendant's sentence that had be served before he became eligible for parole was double the 

portion that he was led to believe he had to serve, 

and defendant swore in an affidavit that he would 

not have pled guilty if he had known the actual time 

he would have to serve. U.S.C.A. Const.Amend. 6; 

Vernon's Ann.Texas C.C.P. art. 42.18(8)(b )(3) 

(Repealed). 

*686 Randy Schaffer, Houston, for Appellant. 

Andrew J. Smith, Asst. D.A., Houston, Lisa C. 

McMinn, State's Attorney, Austin, for State. 

OPINION 

JOHNSON, J., delivered the opinion of the Court in 

which PRICE, WOMACK, KEASLER, HERVEY, 

COCHRAN, and ALCALA, JJ.,joined. 

Applicant pled guilty to the offense of murder 

without an agreement for punishment. The trial 

court accepted the plea and sentenced applicant to 

seventy-five years' incarceration. On direct appeal, 

the court of appeals affirmed the judgment of the 

trial court. Moussazadeh v. State, 962 S.W.2d 261 

(Tex.App.-Houston [14th Dist.] 1998, pet. refd) ( 

Moussazadeh I ). Thereafter, applicant filed an ap~ 

plication for habeas corpus relief. In a published 

opinion, we denied relief because applicant "failed 

to prove, by a: preponderance of the evidence, that 

his plea was induced by a misunderstanding of the 

applicable parole law which formed an essential 

Page 4 

element of the plea agreement." Ex pafte Moussazadeh, 64 S.W.3d 404,413 (Tex.Crim.App.2001) 

, cert. denied, 537 U.S. 813, 123 S.Ct. 74, 154 

L.Ed.2d 16 (2002) ( Moussazadeh II, # 

AP-74,185). Applicant filed a subsequent application for writ of habeas corpus, Moussazadeh III, # 

AP-76,439, that *687 asserts that trial counsel's 

mistaken advice regarding parole eligibility 

rendered his plea involuntary. We ordereq the subsequent application filed and set for submission. 

After applicant filed the subsequent application, he 

also filed a suggestion for reconsideration that asks 

this Court, on its own motion, to reconsider its decision in Moussazadeh II. 

[ l ][2) This Court, on its own initiative, may reconsider a prior denial of habeas corpus relief. 

TEX.R.APP. P. 79.2(d). We now reconsider, on our 

own initiative, the claim raised in applicant's 

second application for writ of habeas corpus, Moussazadeh II, FN 1 and grant relief. Applicant's subsequent application, Moussazadeh Ill, is dismissed. 

FNl. Applicant's first application sought 

an out-of-time appeal, which we granted. 

Ex parte Moussazadeh, No. AP-72,200 

(Tex.Crim.App. delivered October 25, 

1995) (not designated for publication). 

Such an initial application seeking an outof-time appeal does not constitute a challenge to the conviction and does not bar 

subsequent writ applications. Ex parte 

McPherson, 32 S.W.3d 860, 861 

(Tex.Crim.App.2000). 

In Moussazadeh II, we discussed how applicant, under indictment for a capital murder committed on September 12, 1993, pled guilty to the reduced offense of murder without a sentencing 

agreement. Applicant, a juvenile at the time of the 

offense, served as "look-out" while one of his three 

co-defendants shot and killed a man during a robbery. Moussazadeh II, 64 S.W.3d at 406-07. While 

initially rejecting the state's offer of a guiHy plea to 

the lesser offense of murder, ultimately applicant 

agreed to plead guilty to murder without a punish-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
361 S.W.3d 684 

(Cite as: 361 S.W.3d684) 

ment agreement. The agreement included applicant's promise to testify at a c~-defendant's trial, 

which he did. ld. at 407-09. During that testimony, 

applicant indicated that he understood that, in 

pleading guilty to the murder offense and because 

of parole-eligibility laws, he was facing a significantly ·lesser term of imprisonment than he would 

have faced if convicted of capital murder. Jd. at 

408-09. After the co-defendant's trial ended, applicant w·as sentenced to seventy-five years' incarceration without a deadly-weapon finding. Jd. at 

409. 

Applicant's claim in his previous writ application, which we now reconsider, asserted that 

"counsel's gross misadvice regarding parole eligibility rendered applicant's guilty plea involuntary." 

He argue~ that "the matter of parole eligibility was 

implicitly incorporated in [his] plea agreement." He 

also argued that his "guilty plea was involuntary 

even if the matter of parole eligibility was not implicitly incorporated in the plea agreement." We 

quote from our opinion in Moussazadeh II. 

It is quite possible that no one in this proceeding knew that the parole law had changed dramatically just 11 days before this robbery-murder. 

Applicant's parole eligibility is measured by the 

law in effect on the date of the offense. Under the 

law effective until September 1, 1993, a person 

serving a life sentence for capital murder was not 

eligible for parole until serving a flat 35 years. 

TEX.CODE CR.IM. PROC. Art. 42.18, § 8(b)(2). 

After September I, 1993; that person was not eligible for parole until serving a flat 40 years. 

TEX.CbDE CRIM. PROC. Art. 42.18, § 8(b)(2) 

(effective Sept. I, 1993). Under the law effective 

until September I, 1993, a person whose conviction included a deadly ?'eapon finding was not 

eligible for parole until he had served a flat onefourth of 9is sentence, up to a maximum of 15 

years. TEX.CODE CRIM. PROC. Art. 42.18, § 

8(b)(3). After September I, 1993, a person whose 

conviction contained a deadly weapon finding 

was required to serve a flat one-half *688. of the 

Page 5 

sentence up to a maximum of 30 years. 

TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3) 

(effective Sept. I, 1993). Under the law effective 

until September I, 1993, a person convicted of 

murder (but whose conviction did not contain a 

deadly weapon finding) was eligible for parole 

when his good time plus flat time equaled onequarter of the . sentence up to 15 years. 

TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3). 

After September I, 1993, a person convicted of 

murder was not eligible for parole until he had 

served one-half of his sentence or 30 years. 

TEX.CODE CRIM. PROC. Art. 42.18, § 8(b)(3) 

(effective Sept. I, 1993). 

The affidavits submitted by both applicant and 

his trial counsel with his habeas application state 

that they did not know of these statutory changes. 

Indeed, we may fairly infer from the record that 

the judge, prosecutor, and [the co-defendant's] 

counsel shared the same misunderstanding. 

However, neither trial counsel's nor applicant's 

affidavits state that the prosecutor agreed to make 

applicant's parole eligibility a term or essential 

element of the plea agreement. There is no evidence that the prosecutor ever discussed any specific term or particular percentage of the sentence 

that he believed applicant should or would serve 

in return for the prosecutor's dropping the 

charges from capital murder to straight murder. 

In sum, we are unable to find any evidence -that 

proves the prosecutor or judge caused applicant 

to plead guilty based upon an incorrect understanding of Texas parole law. [Citation omitted.] 

Jd. at409-10. 

In Moussazadeh 11, we held that a finding that 

parole eligibility formed an essential part of a plea 

agreement must be founded upon the express terms 

of the written plea agreement itself, the formal record at the plea hearing, or the written or testimonial evidence submitted by both the prosecution and 

the applicant in a habeas proceeding. I d. at 412. We 

were "unable to conclude ... that parole eligibility 

played any part, implicit or explicit, in the plea 

4 .

. '-'_ ' ' 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. I 
361 S.W.3d 684 

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agreement made between the prosecution and applicant." Id. at 413. We therefore "den[ied] applicant relief because he ... failed to prove, by a preponderance of the evidence, that his plea was induced by a misunderstanding of the applicable parole law which formed an essential element of the 

plea agreement." /d. Acknowledging our prior holdings that a guilty plea is not rendered involuntary 

simply because the defendant received and relied 

upon erroneous advice of counsel concerning parole 

eligibility, and that both parole eligibility and parole attainment are highly speculative future facts, 

we likewise rejected applicant's contention that his 

plea was involuntary regardless of whether the parole eligibility misinformation was implicitly incorporated into the plea agreement. Jd. at 413-14. 

The circumstances surrounding applicant's conviction are not in dispute. Prior to applicant's plea, 

trial counsel advised applicant about his parole eligibility, and that advice was incorrect. As we stated 

in Moussazadeh ll, "The affidavits submitted by 

both applicant and his trial counsel with his habeas 

application state that they did not know of these 

[recently effective] statutory changes [in the paroleeligibility law]. Indeed, we may fairly infer from 

the record that the judge, prosecutor, and counsel 

for [the co-defendant against whom applicant testified] shared the same misunderstanding." Moussazadeh 11, 64 S.W.3d at 410. 

[3][4][5] Counsel's advice can provide assistance so ineffective that it renders a guilty plea involuntary. *689.Hill v. Lockhart, 474 U.S. 52, 56, 

~06 S.Ct. 366, 88 L.Ed.2d 20~ (19~~) (quoting McMann v. Richardson, 397 U.S. 759, 771, 90 S.q. 

1441, 25 L.Ed.2d 763 (1970); "voluntariness of the 

plea depends on whether counsel's advice 'was 

within the range of competence demanded of attorneys in criminal cases.' "). A guilty plea is not 

knowing or voluntary if made as a result of ineffective assistance of counsel.t Ex parte Burns, 60.1 

S.W.2d 370, 372 (Tex.Crim.App.1980}. A defendant's decision to plead guilty when based upon erroneous advice of counsel is not done voluntarily and 

Page 6 

knowingly. Ex parte Battle, 817 S.W.2d 81, 83 

(Tex.Crim.App.l991 ). See alS(? Ex parte • Harrington, 310 S.W.3d 452, 459 (Tex.Crim.App.2010) 

("When counsel's representation falls below this [ 

Strickland] standard, it renders any resulting guilty 

plea involuntary."). 

Applicant's initial application contended that 

"counsel's gross misadvice regarding parole eligibility rendered applicant's guilty plea invgluntary," 

"the matter of parole eligibility was implicitly incorporated in [his] plea agreement," and that his 

"plea agreement was involuntary even if the matter 

of parole eligibility was not implicitly incorporated 

in the plea agreement." Applicant now asks. this 

Court to reconsider his application in light of Pa~ 

dilla v. Kentucky, 559 U.S.--, 130 S.Ct. 1473, 

176 L.Ed.2d 284 (20 10), and overrule our previous 

decisions in Ex parte Evans, 690 S.W.2d 274 

(Tex.Crim.App.1985), and Moussazadeh II. 

The state contends that Padilla has no bearing 

upon the Court's disposition. of applicant's claim 

and that Ex parte Evans and Moussazadeh II are 

"still based upon sound logic regarding parole eligibility and parole attainment as being highly speculative circumstances that does [sic] not render a 

guilty plea involuntary." 

We conclude that both applicant and the state 

are partly correct: Padilla is not applicable to the 

facts before us, and our decisions in Ex parte Evans 

and Moussazadeh /1 were incorrect. We now disavow our prior decisions in Ex parte Evans and 

Moussazadeh 11 to the extent that they ( 1) require 

parole-eligibility misinformation to form an essential part of the plea agreement in order t~ make a 

showing of an involuntary plea that resulted from 

ineffective assistance of counsel, based upon such 

misinfonnation and (2) fail to appropriately recognize the distinction between parole eligibility and 

parole attainment. 

[6] We have previously held that, because of 

the extremely speculative nature of parQle attainment, advice from counsel concerning parole does 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
361 S.W.3d 684 

{Cite as: 361 S.W.3d 684) 

not render a plea involuntary. Ex parte Evans, 690 

S.W.2d at 279. However, Evans stated that, because 

"eligibility for parole is a fluctual [sic] societal decision; highly subject to change," id. at 278,~an .• aPi." 

·. plicant must prove, by a preponderance of the evLCir 

,ence, that,paro'le eligibility was an affirmative part · ':· · FN2 or essenttal element of the plea bargain. !d. 

This is an incorrect statement of the law. While the 

general eligibility rules for parole may change over 

time, the~~Egibility rules remain the same for a giv: 

en conviC'tion. Likewise, an inmate who was eligible for mandatory release at the time of the offense remains eligible for mandatory release on that 

conviction, even if th!lt offense subsequently becomes eligible for only discretionary mandatory release. "The statute in effect when the holding offense is committed determines an inmate's eligibility for release on mandatory*690 supervision or parole.";::Ex:cparte~·Thompson, 173 S.W:3d 458, 459' 

(Tex.Crim.App.2005). Evans held that, because parole attainment was speculative, its "legal importance on the subject of voluntariness of a guilty 

plea" should be "discounted." Ex parte Evans. 690 

S.W.2d at 279,. Then, based on its incorrect statement of law, Evans made an erroneous logical leap 

and applied the same standard to parole eligibility. 

As a result, Evans held that erroneous advice as to 

either parole eligibility or parole attainment would 

not render a plea involuntary. !d. In Moussazadeh 

II, we further conflated the concepts of eligibility 

and attainment. 

FN2. See also Ex parte Trahan, 781 

'S.W.2d 291, 292-93 (Tex.Crim.App.l989) 

(written plea memorandum reflected that 

a~pplicant would become eligible:; for parole 

consideration after having served onefourth of sentence; habeas relief available 

when that was not the law and terms of 

plea agreement were impossible to fulfill). 

Although one can determine current parole eligibility with some degree of certainty, it is really 

parole ~ttainment that is significant to a plea bargaining defendant. It matters very little that a perPage 7 

son is eligible for parole in one year on a ten year 

sentence if virtually no one is being paroled in 

less than seven or eight years on a ten year sentence. It is for this reason that we have termed 

parole attainment "too speculative to warrant being given effect upon" a defendant's guilty plea. 

64 S.W.3d at 413, quoting Evans, supra. 

[7][8][9][10] Contrary to our prior decisions, 

there are considerable, concrete distinctions 

between parole attainment and parole eligibility. 

Parole attainment is indeed highly speculative, due 

to various factors associated with circumstances 

surrounding an individual prisoner's parole application, such as the prisoner's behavior in prison, the 

composition and attitude of the parole board, the 

identity and attitude of the governor, the population 

of the prison system, and regulations governing 

"good time." Se,e.Ex.pm;te Carillo, 687 S.W.2d 320, 

325 (Tex.Crim.App.l985) (Miller, J., concurring). 

The question of parole eligibility, however, elicits a 

straightforward answer because an applicant's parole eligibility is determined by the law in effect on 

the date of the offense. Ex parte Thompson, 173 

S.W.3d at 459. The statutes that govern the punishment of a particular offense control the issue of parole eligibility and are not subject to alteration, absent legislative amendment. Even in the event of a 

legislative amendment making a law more stringent, an applicant is subject only to the law governing parole eligibility at the time the offense was 

committed. See Ex parte Alegria, 464 S.W.2d 868, 

874-75 (Tex.Crim.App.l971) (retroactive application of parole statute that increased defendant's cumulation of years required for parole eligibility violated ex post facto clauses of United States and 

T C . . . ) FN3 P I 1· 'b'l· . exas onstttuttons . aro e-e tgt 1 tty requtre" 

ments are direct consequences because they are a 

definite and largely automatic result of a guilty 

plea. See Mitschke v. State, 129 S. W.3d 130, 135 

(Tex.Crim.App.2004): Parole attainment, on the 

other hand, is not governed by statute and is granted at the discretion of the parole board. 

FN3. A law that changes the punishment 

~~~ ~ .. ...-:.. ;~~:· ·. :. 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. .. , ... .~·~;_.; ,·~:'' ::- .vi!: i ~· 

·r; 4-···--... . .. :! 

. · ..... ~:: ,.. . : 
361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

for a crime after the crime has been committed is an unconstitutional ex post facto 

law only if it inflicts a greater punishment 

than did the previous law. Ex parte Tate, 

471 S.W.2d 404, 406 

(Tex.Crim.App.l971) (op. on reh'g); Ex 

parte Scott, 471 S.W.2d 54, 55-6 

(Tex.Crim.App.l971 ). "[A] statute which 

mitigates the rigor of the law. in force,at , 

the time a crime was committed cannot be 

regarded as ex post facto with reference to 

that crime." Rooney v. North Dakota, 196 

U.S. 319, 325, 25 S.Ct. 264, 49 L.Ed. 494 

( 1905). 

On a claim of involuntary plea, the standard for 

the analysis of harm under the Strickland protocol 

as expressed in these cases may be stated generally 

as "but for the erroneous advice of counsel, the applicant*691 would not have plead guilty." Ex parte 

Harrington, 310 S.W.3d at 458. See also Ex parte 

Moody, 991 S.W.2d 856, 858 (Tex.Crim.App.l999) 

; Ex parte Stephenson, 722 S.W.2d 426, 428 

(Tex.Crim.App.l987). 

[ 11] When deciding whether to accept or reject 

a plea offer, a defendant will likely consider the actual minimum amount of time he will spend incarcerated. In order to properly consider his options, a 

defendant needs accurate information about the law 

concerning parole eligibility. Although we continue 

to recognize the distinction between direct and collateral consequences, we now hold that the question 

of whether parole eligibility forms an affirmative 

part or essential element of the plea agreement is 

not determinative of this Court's deficient-performance inquiry under Strickland. 

[12] To obtain habeas corpus relief on a claim 

of .involuntary plea, .an applicant must meet both 

prongs of the Strickland standard: (I) counsel's performance "was deficient; and (2) that a probability 

exists, sufficient to undermine our confidence in the 

result, that the outcome would have been different 

but for counsel['s] deficient performance." Ex parte 

White, 160 S.W.3d 46, 49 (Tex.Crim.App.2004). In 

Page 8 

the context' of involuntary plea, the "diff~rent outcome" is choosing not to plead and instead choosing to go to trial. 

[13][14] Counsel's performance is deficient if it 

is shown to have fallen below an objective standard 

of reasonableness. I d. at 51; Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984). The constitutionally appropriate level of reasonableness is defined by•the practices and expectations of the legal community and 

prevailing professional norms therein. Strickland, 

supra, at 688, 104 S.Ct. 2052. In situations ·in 

which the law is not clear, counsel should advise a 

client that pending criminal charges may carry a 

risk of other serious consequences. When a serious 

consequence is truly clear, however, counsel has an 

equally clear duty to give correct advice. Both failure to provide correct information and protiding incorrect information violate that duty. 

[ 15] The terms of the relevant parole-eligibility 

statute are succinct and clear with respect to the 

consequences of a guilty plea. Based upon the date 

in which the instant offense was · committed, 

Tex.Code Crim. Proc. art. 42.18- § 8(b )(3) clearly 

and succinctly provided that "a person coq.victed of 

murder was not eligible for parole until he had 

served one-half of his sentence or thirty years." 

Moussazadeh II, supra, at 409. Applicant's counsel 

could have easily determined the applicable paroleeligibility requirements simply by reading the text 

of the statute. Instead, applicant's counsel failed to 

inform him of changes in the parole-eligibility statutes that essentially doubled the length of time he 

must serve before becoming eligible for parole. The 

fact that the amendments took effect only eleven 

days before the offense is of no consequence. FN4 

FN4. Parole eligibility is not speculative. 

In this case, parole eligibility was statutorily determined and, at the time of the plea, 

there was no speculation about those statutory terms. Those terms of parole eligibility were clear, succinct, and expli'cit. It appears that all parties involved were un-

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

aware that parole eligibility had changed 

significantly just a few days before the 

commission of the alleged offense. 

The performance of applicant's counsel was deficient: the consequences of applicant's plea could 

have been easily determined by reading the applicable statute. Parole-eligibility requirements are presumpti"vely mandatory, and applicant's trial counsel 

provided •incorrect advice. We *692 conclude that 

applicant has sufficiently proved that his counsel 

was constitutionally deficient. 

[ 16] The portion of applicant's sentence that 

must be served before he becomes eligible for parole was double the portion that he was led to believe he must serve. Based on applicant's affidavit 

FN5 · of January 13, 1997, we also conclude that applicant would not have pled guilty if he had known 

the actual time he would have to serve, and thus 

prejudice is shown. We find that the habeas court's 

findings of fact and conclusions of law are supported by the record and agree that relief should be 

gnmted. 

FN5. "tJ:ad Judge Azio~, Mr. Jones, or Mr. 

CogdelL:Jold m~ that a murder conviction 

;ould require me to serve aggravated time 

of one-half of my sentence, up to a maximum of 30 years, even without a deadly 

weapon finding, I would not have accepted 

the plea bargain." 

Accordingly, upon reconsideration, we grant 

relief. The judgment in this cause is hereby vacated, 

and appli,cant is remanded to the custody of the 

Harris County Sheriff to answer the charges set out 

in the indictment. The trial court shall issue an appropriate bench warrant within ten days after the 

mandate of this Court issues. Copies of this opinion 

shall be sent to the trial court and to the Texas Department of Criminal Justice,. correctional institutions division. 

KELLER1 P.J., filed a concurring opinion. MEYERS, J., did not participate. 

Page 9 

KELLER, P.J., concurring. FN! In overruling Ex parte Evans, the Court 

creates a new rule of constitutional law. Under 

Teague, with some exceptions, federal·courts may 

not announce or apply new rules of constitutional 

law on collateral review. FN2 The states are not 

bound by the Teague rule and may afford retroactive effect on collateral review in situations not allowed under Teague. FN3 Nevertheless, with respect to the new Confrontation Clause holding articulated in Crawford v. Washington.FN4 we applied the rule in Teague to bar retroactive applica- FN5 . tion on habeas corpus. The Court does not conduct a retroactivity analysis in this case, and I do 

not know its reason for making the n·ew rule retroactive. Has the Court abandoned Teague altogether 

in favor of its own retroactivity analysis? Does it 

intend to adhere to Teague, but with state-created 

exceptions? Do any exceptions-articulated in 

Teague or state-created-apply in the present case? 

If the Court is going to overrule prior precedent on 

habeas review, as it does here, I believe that it 

should clearly explain how this fits into our retroactivity jurisprudence. 

FNJ. 690 S.W.2d 274 

(Tex.Crim.App.1985). 

FN2. Teague v. Lane, 489 U.S. 288, 109 

S.Ct. I 060, 103 L.Ed.2d 334 ( 1989). 

FN3. Danforth v. Minnesota, 552 U.S. 264, 

128 S.Ct. 1029, 169 L.Ed.2d 859 (2008); 

Ex parte Lave, 257 S.W.3d 235, 237 & n. 

15 (Tex.Crim.App.2008). 

FN4. 541 U.S. 36, 124 S.Ct. 1354, 158 

L.Ed.2d 177 (2004). 

FN5. Lave, 257 S.W.3d at 237; Ex parte 

Keith, 202 S.W.3d 767 

(Tex.Crim.App.2006). 

There is an easier way to resolve this case. 

During the plea colloquy, the trial judge was prepared to make a deadly weapon finding, but the 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 1\.biknc: Chr~:.~;::~·~ 

~AbH:z!ne, T}C ~~~6;Q~ 
r 

361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

parties explained that the issue was to be left open 

for the judge to determine at punishment, which 

would be assessed after applicant testified against a 

co-defendant in accordance with the plea agreement.FN6 This explanation was consistent with the 

parties agreeing *693 that applicant would have his 

chance, after cooperating with the State, to persuade the, trial judge to make his time 

"non-aggravated," i.e. subject to more generous parole-eligibility rules available to non-3g offenses. 

FN? But less than two weeks before the offense had 

been committed, the law had changed to treat 

murder as an "aggravated" offense for paroleeligibility purposes, regardless of whether there 

d was . FN8 . fi d' f a deadly-weapon fin mg. In Its m mgs o 

fact on applicant's original habeas application, the 

habeas judge found that the prosecutor and the trial 

judge ratified defense counsel's misinformation 

about parole eligibility "by attaching significance to 

the deadly weapon finding." FN9 The habeas judge 

recommended that applicant be granted a new trial. 

FN6. See Ex parte Moussazadeh, 64 

S.W.3d 404,408 (Tex.Crim.App.2001). 

FN7. See TEX.CODE CRIM. PROC. art. 

42.12 § 3g; TEX. GOV'T CODE § 

508.145(d). 

FN8. Moussazadeh, 64 S.W.3d at 409. 

FN9. The habeas judge also found that appellant would not have pleaded guilty absent the misinformation. 

In our original opinion on applicant's habeas 

application, we declined to follow the habeas 

judge's finding, and her ultimate recommendation, 

because it required "too many inferences stacked 

upon each other" for the deferral of the deadly 

weapon issue "to support a finding that it was the 

parties' clear intention that parole eligibili_l:y _was an 

. h l b . " FNIO W essential element of t e p ea argam. e 

cited no authority for this "inference-stacking" 

holding,FNll and thus it does not appear to be 

based upon an established rule that we would have 

Page 10 

to change. Moreover, with regard to the a(ivice given in Evans, we said in that case: 

FNlO. Jd. at 413. 

FNll. See id. 

No overt sanctioning of this advice by the judge 

or the prosecutor appears in the record and it does. 

not appear to have been a part of the plea bargain . • We realize that it is common for the parties to 

play the guessing game of parole eligibility in 

plea negotiations. We decline, however, to elevate this common practice to the status of an element of the plea bargain without some further indication from the record evidencing that status. 

We conclude, then, that we are not dealing with a 

. 'bl I b . . . FN12 broken or unposs1 e p ea argam situatiOn. 

FN12. 690 S.W.2d at 277. 

Unlike in Evans, there was overt sanctioning of 

the attorney's advice by the judge and the prosecutor, or at least the habeas court could so rationally 

conclude, as it has done. Thus, we simply misanalyzed the issue under Evans, and it is appropriate 

for us to reconsider the issue now. 

Further, since our original opinion in this case, 

we have decided Hooper, where we indicated that 

inference stacking was not necessarily irrational 

and that we should focus, not on whether inferences 

are being stacked, but simply on the rationality of 

the inferences in addressing the sufficiency of the . . . FNI3 evidence to support a conviction. 

FN13. yHooper v. State, 214 S·,W.3d 9, 

16-17 (Tex.Crim.App.2007). If it were necessary to decide whether Hooper's pronouncement regarding inference stacking 

constituted a new rule under Teague, I 

would hold that it does not, because, regardless of the scope of tfexas's version of 

Teague's proscription against announcing 

new constitutional rules of criminal procedure on habeas, see Danforth, supra, 

such a proscription cannot apply to basic 

© 2012 Thomson Reuters. No Claim to Orig. US Gov. Works. 
361 S.W.3d 684 

(Cite as: 361 S.W.3d 684) 

s,tandards of habeas practice. Otherwise a 

court could never change its procedures or 

standards on habeas. 

FinallY,, I would not hold, as the Court appears 

to do,FNPI that the simple failure to *694 convey 

information about parole eligibility renders a guilty 

plea involuntary. We need not address whether 

counsel has an obligation to convey information 

about the,. parole consequences of a plea. In this 

case, it is enough to hold that, if counsel does convey this type of information, he must do so correctly. Here, the information was incorrect. 

FN 14'. "Both failure to provide correct information and providing incorrect information violate that duty[.]" Court's opinion at 

691. 

Although I agree that applicant is entitled to a 

new trial, I do not join the Court's opinion. I concur 

in the Court's judgment. 

Tex.Crim.App.,20 12. 

Ex Parte Moussazadeh 

361 S.W.3d 684 

END OF DOCUMENT 

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