by Kent Russell

This column provides “habeas hints” to prisoners who are considering or handling habeas corpus petitions as their own attorneys (“in pro per”). The focus of the column is on “AEDPA” (Antiterrorism and Effective Death Penalty Act), the federal habeas corpus law which now governs habeas corpus practice in courts throughout the United States.

Missouri v. Frye, 132 S.Ct. 1399 (2012)

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

In Missouri v. Frye (Frye) and Lafler v. Cooper (Cooper), the U.S. Supreme Court (SCOTUS) held that, when a plea offer by the State is rejected due to ineffective assistance of counsel (IAC), the defendant may be entitled to a second chance at accepting the offer – even if he subsequently pleaded guilty to less favorable terms, or went to trial, was found guilty and received a longer sentence than that provided for in the original plea offer.

In Frye, the defendant was charged with a felony for a fourth offense of driving with a revoked license. The prosecutor sent Frye’s lawyer a letter offering to reduce the charge to a misdemeanor if Frye pleaded guilty within a specified time period and agreed to a 90-day sentence. However, the lawyer never informed Frye of the offer before the deadline for acceptance, and the offer expired. Then Frye, ignorant that the plea offer had lapsed, pleaded guilty without conditions and was sentenced to 3 years in prison – more than 10 times the sentence he would have received had he accepted the plea offer.

In Cooper, the defendant was charged with assault with intent to murder after he shot a woman in the buttocks. Prosecutors offered a plea deal with a recommended term of four to seven years. However, Cooper’s lawyer advised him to reject the offer because the lawyer insisted that state law did not permit an attempted murder conviction for wounds inflicted below the waist. The lawyer’s advice was 100% wrong, but Cooper relied on it and rejected the plea offer. Cooper then went to trial, was convicted and received a mandatory minimum sentence of 15 to 30 years – more than 4 times greater than the sentence he would have received had he taken the plea bargain.

In both cases the State admitted that the lawyers had provided ineffective assistance at the plea bargaining phase, but maintained that this didn’t matter because there is no constitutional right to a plea offer in the first place. However, by a 5-4 vote, SCOTUS reversed both cases and sent them back to the trial court for a new round of plea-related proceedings consistent with the principles expressed in the majority opinion.

The first question that SCOTUS tackled in these cases was whether the well-established Strickland standard – which holds that a habeas petitioner can have his conviction and/or sentence reversed if he can show deficient performance by his lawyer and resulting prejudice – applies to rejected plea offers such as those implicated in Frye and Cooper.
SCOTUS had previously held that Strickland applied where a defendant accepted a plea offer as the result of IAC; for example, where defense counsel misinformed the defendant of the amount of time he would have to serve before becoming eligible for parole [see: Hill v. Lockhart, 106 S.Ct. 366 (1985)], or failed to tell the defendant that his guilty plea would likely result in deportation [see: Padilla v. Kentucky, 130 S.Ct. 1473 (2010)].

However, in Frye and Cooper the defendants were not complaining that incompetent attorney advice had led them to accept a plea offer that turned out to be worse than they were led to believe by their attorney, but rather that IAC had caused them to reject a plea offer that provided for a lesser sentence than that later imposed after pleading guilty on less favorable terms, or going to trial and being found guilty.

The State argued that, unlike acceptance of a plea offer due to IAC, rejection of a plea offer makes the application of the Strickland standard inapplicable due to the additional speculation that comes into play when analyzing the effect of a plea offer that was never accepted in the first place (Frye); and because, once a defendant goes to trial and loses (as in Cooper), he forfeits the right to complain about a plea bargain that was never implemented prior to trial. However, the SCOTUS majority rejected the State’s arguments because, with 94-97% of criminal convictions resulting from plea agreements, plea bargaining is such an essential component of the criminal justice system in the U.S. that the Sixth Amendment right to effective assistance of counsel at every “critical stage” of the process must apply to plea bargaining in all of its forms.

Having found that the Strickland test for IAC applied to the plea offers rejected in Frye and Cooper, and with the State having conceded that incompetent attorney advice caused the rejection of the original plea bargains in both cases, the SCOTUS majority had little trouble concluding that both Frye and Cooper had satisfied the “deficient performance” prong of Strickland’s IAC test. Nevertheless, what the Court gave with one hand it may well have taken away with the other by imposing very tough requirements in order to prove prejudice.

Specifically, a petitioner attempting to satisfy the prejudice prong of the IAC test as to a plea that was rejected due to incompetent attorney advice must demonstrate a “reasonable likelihood” as to all of the following: 1) that the defendant would have accepted the offer if competently advised by his lawyer; 2) that the prosecutor would not have withdrawn the offer before the court approved it; and 3) that the court would have accepted the offer. The first requirement is not very difficult to meet when a specific plea offer has been rejected, because all the petitioner has to show is that he received a longer sentence by rejecting the offer than he would have received had the offer been accepted.

But the second and third requirements are much more challenging to satisfy, because in virtually all states the prose-cutor can withdraw a plea offer up until the time it is accepted and approved in open court; also, the judge has broad discretion to reject a plea offer even if both sides have agreed to it. Hence, for example, even though SCOTUS remanded the Frye case to the trial court for a hearing on whether the prejudice requirements had been met, the Court, noting that Frye had been charged with another offense after the plea offer was tendered, stated “there is reason to doubt that the prosecution would have adhered to the agreement or that the trial court would have accepted it ... unless they were required by state law to do so.” (Frye, at p.1411).

Based on the above, the following Habeas Hints are recommended before a prisoner decides to file a habeas claim based on the Frye and Cooper decisions:

• Don’t even think about making a claim based on Frye/Cooper if the prosecution didn’t make any plea offers at all. Both cases make clear that the State is under no obligation to make a plea offer of any kind. It is only after a plea offer is actually made by the prosecution that Frye and Cooper potentially come into play.

• You must be able to point to a specific plea offer that was rejected due to incompetent attorney advice. (The prosecution had decided to concede this issue by the time Frye and Cooper reached the Supreme Court, but you can’t expect the State to do that in your case). One way to accomplish this is to obtain trial counsel’s file and try to find letters or other documentation showing plea offers that were made by the prosecution and either not communicated to you at all, or which you rejected based on advice by your attorney that you can now show to have been faulty. If you can’t find such documentation in the existing file, try to obtain it by a) writing a letter to the D.A.’s office requesting copies of any plea offers communicated to the defense and not eventually accepted; b) requesting, in writing, that your defense counsel provide you with a letter setting forth all plea offers made by the prosecution and the reasons why each offer was rejected or not accepted; and c) preparing your own sworn declaration explaining how faulty advice by your attorney caused you to reject a plea offer that you otherwise would have accepted.

• Look up and copy penal code sections showing that the sentence you ultimately received was longer than the sentence you would have received had you accepted a plea offer that, because of IAC, you rejected. Also state somewhere in your petition or in a supporting declaration that you would have accepted the more favorable offer had you been competently advised about it.

• Strongly consider using expert testimony to meet the prejudice requirement. Although you should check your state’s law to determine whether there are any statutory limits on the prosecutor’s right to withdraw a plea offer before it has been accepted by the defendant in open court, or whether there are any limits on the court’s discretion to refuse to accept a plea bargain after both parties have agreed to it, you should assume there are no such limitations. In California, for example, Penal Code § 1192.5 simply states that a plea agreement requires the “consent of the prosecutor” and the “approval of the court,” and there are no stated restrictions on the prosecutor withdrawing consent or the court refusing to approve a plea bargain before it is formally accepted by all parties in open court. You will find that most, if not all states, have similar laws. Nevertheless, SCOTUS requires that to establish prejudice as to a rejected plea offer, a habeas petitioner must show “a reasonable probability that neither the prosecution nor the trial court would have prevented the offer from being accepted or implemented.” (Frye, at p.1410). I recommend that you try to deal with this dilemma by using expert testimony. For example, consider retaining a public defender, prosecutor or judge who practiced in the county when and where you were convicted. Obtain a declaration from your expert stating that once a plea offer had been made by the prosecutor and accepted by the defendant, in the vast majority of cases the prosecutor would stand by the offer and the judge would accept it unless new facts unfavorable to the defendant or to the defense case came to light before a hearing on the plea offer. Then, assuming that you were not charged with any other offenses after arraignment and prior to trial (if there were new charges after arraignment, any claim based on Frye/Cooper is almost certainly a loser), show that no new “bad” facts are reflected in the record between the time the offer was made and the date when you accepted a worse offer or went to trial.

• Decide whether to argue that the Frye and Cooper cases proclaim a “new rule” or an “old rule.”

Even if you’ve successfully followed all of the Habeas Hints set forth above, you still have to deal with the thorny issue of retroactivity. In particular, “new rules” promulgated by the Supreme Court cannot be applied retroactively to cases which became final prior to the date the new rule is announced by SCOTUS, unless SCOTUS says they are retroactive (which SCOTUS did not do in either Frye or Cooper and is extremely unlikely to do in any future case), or a lower court finds the rules to be retroactive based on standards which are very difficult to satisfy. (See, e.g., Whorton, cited in the next paragraph). Given this challenge, if your case is recent enough that your conviction has not become final under state law, file a Frye/Cooper claim in state court and argue that the rules announced in Frye and Cooper are not “new” rules, but rather “old” rules that flow naturally from Supreme Court jurisprudence going back to the Hill decision in 1985. Do this by using excerpts from the majority decision, which trace Frye and Cooper all the way back to Hill. When you are denied in state court, file a timely habeas corpus claim in federal court on the same theory.

Alternatively, if you can’t use the “old rule” approach because your conviction has already become final under state law, bring your habeas claim within one year of the date that Frye and Cooper were published (i.e., before March 21, 2013), and argue that these cases proclaimed a “new rule” of federal constitutional procedure that should be applied retroactively because it is so important as to constitute a “watershed rule of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding.” (See: Whorton v. Bocking, 127 S.Ct. 1173 (2007), recognizing this as a retroactivity exception but finding it to be rarely if ever applied in practice). Do this by citing the arguments in the dissents, which criticize both Frye and Cooper precisely because they supposedly represent a monumental change from previous decisions by the Supreme Court.

Kent A. Russell specializes in habeas corpus and is the author of the California Habeas Handbook, which thoroughly ex-plains state and federal habeas corpus under AEDPA. The 5th Edition, completely revised in September 2006 and recently updated in 2011, can be purchased for $49.99, which includes priority mail postage. An order form can be obtained from Kent’s website (www.russellhabeas.com), or simply send a check or money order to: Kent Russell, “Cal. Habeas Hand-book,” 3169 Washington Street, San Francisco, CA 94115.

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