U.S. Supreme Court: Federal circuit court failed to give required “double deference” under AEDPA to state court’s resolution of ineffective assitance of counsel claim

Burt v. Titlow, USSC No. 12-414, 11/5/13

United States Supreme Court decision, reversingTitlow v. Burt, 680 F.3d 577 (6th Cir. 2012)

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17). In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent. Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attor­neys, the Sixth Circuit’s decision must be reversed. (Slip op. at 1).

Titlow and her aunt, Billie Rogers, were charged with murdering Rogers’s husband. Titlow initially made a deal with the state to plead to manslaughter and testify against Rogers. But after entering her plea, and on the eve of Rogers’s trial, she hired a new lawyer, protesting she was innocent. After the prosecutor rejected her demands for a better sentence recommendation under his plea deal, she successfully moved to withdraw her plea. Rogers’s trial went forward and she was acquitted. Titlow was then tried, convicted of second degree murder, and given a longer sentence than she would have received under the plea agreement. (Slip op. at 1-2).

On direct appeal in state court Titlow argued her second lawyer was ineffective for advising her to withdraw her plea because he didn’t take the time to learn enough about the case and inadequately advised her about the strength of the state’s case. The state courts held the lawyer acted reasonably given Titlow’s assertions of innocence, saying that “[w]hen a defendant proclaims … innocence …, it is not objectively unreasonable to recommend that the de­fendant refrain from pleading guilty—no matter how ‘good’ the deal may appear.” (Slip op. at 2-3). Titlow sought federal habeas relief, and the Sixth Circuit reversed, concluding the state court’s decision was based on an unreasonable interpretation of the factual record because the lawyer argued for plea withdrawal based not on Titlow’s claim of innocence, but on the fact the sentence to be recommended under the plea agreement exceeded state sentencing guidelines. Further, the Sixth Circuit was troubled that “[t]he record in this case contains no evi­dence” that counsel fully informed Titlow of the possible consequences of withdrawing the guilty plea. 680 F.3d at 589.

The Supreme Court unanimously reverses, citing the “formidable barrier” to habeas relief erected by AEDPA and concluding the record “readily supports” the state court’s findings that trial counsel acted based on Titlow’s assertions of innocence. (Slip op. 4-8). “Even more troubling” for the Court was the Sixth Circuit’s reasoning that the record contains no evidence that counsel adequately advised Titlow about whether to withdraw his plea:

We have said that counsel should be “strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,” Strickland, 466 U. S., at 690, and that the burden to “show that counsel’s performance was deficient” rests squarely on the defendant, id., at 687. The Sixth Circuit turned that presumption of effectiveness on its head. It should go without saying that the absence of evidence cannot overcome the “strong pre­sumption that counsel’s conduct [fell] within the wide range of reasonable professional assistance.” Id., at 689. As Chief Judge Batchelder correctly explained in her dissent, “[w]ithout evidence that [trial counsel] gave incorrect ad­vice or evidence that he failed to give material advice, Titlow cannot establish that his performance was defi­cient.” 680 F. 3d, at 595. (SLip op. at 9).

As we noted in our post on the cert grant in this case, the Court would reach the substantive issue in the case–the right to the effective assistance of counsel during plea negotiations–only if it first got past the deferential standard of review required in federal habaes cases under AEDPA. Thus, the decision is mainly another ringing reaffirmation of the limits of federal habeas review, and to that extent offers little that is new. On the other hand, the decision offers some guidance regarding counsel’s duties in plea negotiating, as it explicitly affirms counsel has the same duties even when the defendant is asserting innocence. In particular, the majority notes, “[a]lthough a defendant’s proclamation of inno­cence does not relieve counsel of his normal responsibili­ties under Strickland, it may affect the advice counsel gives.” (Slip op. at 8). Justice Sotomayor’s concurrence expands, helpfully, on this point:

Regardless of whether a defendant asserts her innocence (or admits her guilt), her counsel must “make an independent examination of the facts, circumstances, pleadings and laws involved and then … offer his informed opinion as to what plea should be entered.” …. A defendant possesses “‘the ultimate authority'” to determine her plea. …. But a lawyer must abide by his client’s decision only after having provided the client with competent and fully informed advice, including an analysis of the risks that the client would face in proceeding to trial. (Sotomayor concurrence at 1-2 (quoted sources omitted)).

While Titlow failed to show facts establishing deficient performance, “our statement about the facts of this case does not imply that an attorney performs effectively in advising his client to withdraw from a plea whenever the client asserts her innocence and has only a few days to make the decision. Had [Titlow] made a better factual record–had she actually shown, for example, that [trial counsel] failed to educate himself about the case before recommending she withdraw her plea–then she could well have prevailed.” (Sotomayor concurrence at 2).

Update (11/7/13): One of Scotusblog’s regular commentators, Rory Little, gives his take on the decision here. He aptly notes that if the Court is looking for vehicles to expound on the standard for effective assistance of counsel in plea bargaining announced in Lafler v. Coooper, 132 S. Ct. 1376 (2012), and Missouri v. Frye, 132 S. Ct. 1399 (2012), “Titlow suggests that they will be looking for direct review cases from the state and federal courts to clarify the law in this area, rather than through the foggy filter that federal habeas doctrine imposes.”