NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0889n.06
No. 12-4152 FILED
Oct 15, 2013
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
JOY LOVELL, )
) ON APPEAL FROM THE
Petitioner-Appellant, ) UNITED STATES DISTRICT
) COURT FOR THE SOUTHERN
v. ) DISTRICT OF OHIO
)
SHERI DUFFEY, Warden, ) OPINION
)
Respondent-Appellee. )
BEFORE: COLE, KETHLEDGE, and STRANCH, Circuit Judges.
COLE, Circuit Judge. Petitioner-Appellant Joy Lovell appeals the district court’s denial of
her petition for a writ of habeas corpus under 28 U.S.C. § 2254. Lovell bases her habeas petition
on the alleged ineffective assistance of counsel in the plea-bargaining context. On appeal, she
contends that (1) the district court erred in deferring to the Ohio Court of Appeals’ factual
determination that her trial counsel informed her of the risk of rejecting a plea deal; and (2) the
district court erred in excluding from its review a supporting certificate from her state trial court
judge. Because of the highly deferential standards of review imposed by the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”), and because the district court properly confined its review
to the record before the Ohio Court of Appeals in accordance with Cullen v. Pinholster, 131 S. Ct.
1388 (2011), we affirm the district court’s order denying Lovell’s petition for habeas relief.
No. 12-4152
Lovell v. Duffey
I. BACKGROUND
The history of this case, before us for a second time, is by now well documented. See, e.g.,
Lovell v. Duffey, 629 F.3d 587 (6th Cir. 2011), vacated and remanded, 132 S. Ct. 1790 (2012). We
therefore assume some familiarity with the facts and issues presented, and we summarize
accordingly.
A. The Facts
In 2003, an Ohio grand jury indicted Joy Lovell on one count of aggravated trafficking in
drugs, one count of aggravated possession of drugs, and one count of permitting drug abuse. The
aggravated trafficking charge carried a mandatory prison sentence. Prior to trial, the State offered
Lovell a plea bargain in which she would agree to plead guilty to a lesser charge, punishable by
probation, as an alternative to prison time. She rejected the offer under ambiguous circumstances.
Lovell says she did so because she believed a guilty verdict would similarly result in nothing more
than probation; the State says she did so only because she believed she was innocent and did not
want to forfeit her vehicle, which was a condition of the plea bargain.
Lovell proceeded to trial, and a jury convicted her of aggravated drug trafficking and
permitting drug abuse. The former offense triggered a mandatory sentence of between one and five
years in prison. At her sentencing hearing, the state trial court explained this to Lovell’s apparent
surprise. During the sentencing colloquy, Lovell stated three times that she was unaware of the
mandatory prison term. Her attorney countered that they had discussed the matter before trial.
-2-
No. 12-4152
Lovell v. Duffey
After sentencing, Lovell obtained different counsel and filed a motion for a new trial, arguing
that her trial counsel had not informed her that one of the offenses carried a mandatory prison
sentence. The state trial court held a hearing on the motion, at which Lovell testified to the same
effect. She explained her understanding of the plea bargain—that it allowed her to plead guilty to
a lesser charge, for which probation remained possible, but also required her to forfeit her vehicle,
something she did not want to do for a number of reasons. Lovell maintained that her trial counsel
“never, ever mentioned jail time at all or prison.” Not wanting to give up her car and apparently
unaware of a possible mandatory prison term, she rejected the offer. Instead, she said she proceeded
to trial on the belief that she “would [still] be eligible for probation” even if found guilty. Lovell
says she would have made a different decision had she been fully informed at the time.
Four years later, in conjunction with her petition for federal habeas relief, Lovell submitted
a supporting certificate from the judge who presided at trial. The judge averred that “Lovell
expressed complete surprise about the mandatory prison requirement” and exhibited a demeanor
“consistent with someone who was shocked and surprised.” The judge also averred that he would
have been inclined to sentence Lovell to probation had she accepted the plea bargain.
B. Procedural History
The state court denied Lovell’s motion for a new trial. On direct review, the Ohio Court of
Appeals affirmed her conviction and the denial of her motion for a new trial in summary fashion,
holding that she “did not receive the ineffective assistance of counsel.” The Supreme Court of Ohio
denied discretionary review for want of a substantial constitutional question. Lovell also filed a state
post-conviction petition while her appeal was pending, based on the same claim and the same
-3-
No. 12-4152
Lovell v. Duffey
evidence. The trial court dismissed her petition because the Ohio Court of Appeals had already
rejected her claim on direct appeal. The court of appeals affirmed the dismissal, concluding that her
post-conviction petition was barred by Ohio’s res judicata doctrine.
In 2007, Lovell filed a federal petition for habeas corpus, again raising her claim of
ineffective assistance of counsel at the trial level. The district court held an evidentiary hearing at
which “new and additional evidence” was introduced. It was then that Lovell presented the trial
judge’s certificate. She also testified in support of her claim, as did her husband. The State
countered with testimony from her trial counsel and evidence that Lovell had filed a civil
malpractice claim against him but voluntarily dismissed it without explanation. The State also
suggested that a manilla folder belonging to her trial counsel with handwritten notations regarding
the mandatory prison sentence proved that he had provided such information to Lovell. After
considering all of the evidence, the district court sided with Lovell. Accordingly, the court granted
her habeas petition, finding that the state appellate court unreasonably applied Strickland v.
Washington, 466 U.S. 668 (1984), in denying her claim.
A divided panel of this Court reversed on appeal. Lovell v. Duffey, 629 F.3d 587 (6th Cir.
2011). The panel weighed the effect of the additional evidence introduced at the district court’s
evidentiary hearing. Unlike the district court, however, the panel considered the evidence
supporting the decision of the state appellate court to be “at least as strong as the evidence to the
contrary.” Id. at 597. Looking to 28 U.S.C. § 2254(d)(1), the panel concluded that the state court
had not unreasonably applied Strickland on such a close set of facts. The panel noted its belief that
-4-
No. 12-4152
Lovell v. Duffey
the state court’s decision was “correct,” but even if it was “arguably wrong,” there was no
justification to find the court’s result unreasonable. Id. at 598.
Lovell filed a petition for certiorari. While her petition was pending, the Supreme Court
decided Cullen v. Pinholster, 131 S. Ct. 1388 (2011), which limits federal habeas review of state-
court decisions to the record that was before the relevant state court at the time. The Supreme Court
subsequently granted certiorari, vacated this Court’s judgment, and remanded for further
consideration in light of the new decision. Lovell v. Duffey, 132 S. Ct. 1790 (2012). We then
remanded the case to the district court for reconsideration in light of Pinholster. Lovell v. Duffey,
469 F. App’x 461 (6th Cir. 2012).
C. The Instant Appeal
The district court denied Lovell’s habeas petition on remand, the definitive difference being
that the court this time declined to consider the trial judge’s certificate in accordance with
Pinholster’s command to limit review to the record before the state court at the time of its decision.
The district court found that the remaining evidence “support[ed] a reasonable inference that Lovell
decided to go to trial in the hope that she would be found innocent” and that she rejected the plea
because she did not want to give up her car, not because she was under the mistaken impression that
she would be eligible for probation in any event. Lovell’s testimony to the contrary proved
insufficient to overcome the highly deferential standard imposed by AEDPA. Under § 2254(d)(2),
the district court concluded that the state court reasonably determined that “Lovell was informed
about the risk of rejecting the offered plea.” Accordingly, the court also concluded that under
§ 2254(d)(1), it could not find that the state appellate court unreasonably applied Strickland in
-5-
No. 12-4152
Lovell v. Duffey
rejecting her ineffective assistance claim. Lovell now appeals, arguing that the district court erred
in deferring to the state appellate court’s factual determination and that the district court should have
received and considered the trial judge’s certificate despite the Supreme Court’s opinion in
Pinholster.
II. STANDARD OF REVIEW
In a habeas proceeding, we typically review the district court’s legal conclusions de novo
and its factual findings for clear error. Adams v. Holland, 330 F.3d 398, 400 (6th Cir. 2003).
Nevertheless, when a district court bases its decision on a transcript from the petitioner’s state trial
proceedings, thus making no credibility determinations or other apparent findings of fact, we review
the district court’s factual findings de novo as well. Williams v. Bagley, 380 F.3d 932, 941 (6th Cir.
2004). Because Lovell filed her habeas petition on September 6, 2007, well after AEDPA became
effective, AEDPA governs our review. Carter v. Mitchell, 443 F.3d 517, 524 (6th Cir. 2006).
In AEDPA, Congress provided that:
An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme Court
of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1)–(d)(2).
-6-
No. 12-4152
Lovell v. Duffey
A. Standard of Review under 28 U.S.C. § 2254(d)(2)
Lovell appeals on the ground that the Ohio Court of Appeals based its decision on an
unreasonable factual determination within the meaning of § 2254(d)(2). To demonstrate that the
appellate court decision was based on an unreasonable determination of the facts under § 2254(d)(2),
Lovell must both establish the “unreasonable determination” and show “that the resulting state court
decision was ‘based on’ that unreasonable determination.” Rice v. White, 660 F.3d 242, 250 (6th
Cir. 2011) (citation omitted). We may take into account only “the record that was before the state
court that adjudicated the claim on the merits” when evaluating an AEDPA claim under § 2254(d).
Id. at 251 (citing Pinholster, 131 S. Ct. at 1398).
We accord a presumption of correctness to the state court’s factual findings. 28 U.S.C.
§ 2254(e)(1) (“[A] determination of a factual issue made by a State court shall be presumed to be
correct. The applicant shall have the burden of rebutting the presumption of correctness by clear
and convincing evidence.”). Thus, we must accept the state court’s fact-finding, unless Lovell
submits evidence clearly and convincingly to the contrary. Rice, 660 F.3d at 250; Williams, 380
F.3d at 942 (“The presumption of correctness also applies to factual findings made by a state
appellate court based on the state trial record.”). As a result, “even if reasonable minds reviewing
the record might disagree about the finding in question,” we may not disturb the state court’s
determination unless that determination was unreasonable. Wood v. Allen, 558 U.S. 290, 301 (2010)
(citation, brackets, and internal quotation marks omitted). “The standard is demanding but not
insatiable,” and the Supreme Court has noted that “deference does not by definition preclude relief.”
Miller-El v. Dretke, 545 U.S. 231, 240 (2005) (brackets and internal quotation marks omitted).
-7-
No. 12-4152
Lovell v. Duffey
B. Modified AEDPA Standard of Review Due to Summary Opinion from the State Court
Although the Ohio Court of Appeals issued a summary opinion, the general standards of
§ 2254(d) still apply. Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011) (holding that § 2254(d)
deference applies even when a state court’s order is unaccompanied by an opinion explaining the
reasons relief has been denied). Yet, as we have stated before, where the state court summarily
disposes of a constitutional claim, we defer only “to the result reached[,] not the reasoning used” by
the state court. Hawkins v. Coyle, 547 F.3d 540, 546–47 (6th Cir. 2008). Under this modified form
of AEDPA deference, we conduct “careful and independent review of the record and applicable
law.” Id. at 546 (internal quotation marks omitted). This independent review, however, “is not a
full, de novo review of the claims, but remains deferential because the court cannot grant relief
unless the state court’s result is not in keeping with the strictures of the AEDPA.” Harris v. Stovall,
212 F.3d 940, 943 (6th Cir. 2000).
III. ANALYSIS
Lovell’s appeal requires us to resolve two issues: (1) whether the Ohio Court of Appeals’
decision denying her ineffective assistance of counsel claim was based on an unreasonable factual
determination within the meaning of § 2254(d)(2); and (2) whether the district court should have
received and considered the trial judge’s certificate on remand. We address each in turn.
A. Section 2254(d)(2) and the Ohio Court of Appeals’ Principal Factual Determination
Lovell bases her habeas petition and this appeal on an alleged violation of her Sixth
Amendment right to the effective assistance of counsel. To have been entitled to relief, Lovell had
to show both that her counsel provided deficient assistance and that she suffered prejudice as a
-8-
No. 12-4152
Lovell v. Duffey
result. Strickland, 466 U.S. at 687. In the plea-bargaining context, a criminal defendant may satisfy
the first prong from Strickland if defense counsel failed to “explain the sentencing exposure the
defendant will face as a consequence of exercising each of the options available.” Smith v. United
States, 348 F.3d 545, 553 (6th Cir. 2003); see Hill v. Lockhart, 474 U.S. 52, 58–59 (1985). To
satisfy the second prong, a defendant must also show that, but for the ineffective assistance, there
is a reasonable probability that the defendant would have accepted the plea bargain. Magana v.
Hofbauer, 263 F.3d 542, 547–48 (6th Cir. 2001); see Lockhart, 474 U.S. at 59.
Lovell argues that the Ohio Court of Appeals was objectively unreasonable when it
determined that her attorney had informed her that the State’s plea offer eliminated an otherwise
mandatory prison term. The State counters that “all credible evidence” leads to the conclusion that
her attorney informed her that she faced a mandatory prison term if convicted as charged.
Taking into account only the record and briefs presented to the Ohio Court of Appeals,
Lovell cannot prove by clear and convincing evidence that the court’s factual determination was
unreasonable. As the transcripts from her sentencing hearing and hearing on the motion for a new
trial reflect, the evidence supporting the court’s determination is at least as strong as the evidence
to the contrary. As a result, Lovell cannot meet the high burden of proof that AEDPA imposes.
Lovell’s challenge of the state court’s fact-finding boils down to three arguments: (1) the
court of appeals ignored direct evidence from Lovell that her attorney failed to tell her about the
mandatory prison term; (2) the State failed to present any direct evidence to the contrary; and (3)
the remaining circumstantial evidence could not support a determination that Lovell’s attorney told
her about the mandatory prison term. As we describe below, each argument falls short.
-9-
No. 12-4152
Lovell v. Duffey
1. Argument One: The Ohio Court of Appeals Ignored Lovell’s Direct Evidence
Lovell first argues that the court of appeals ignored the direct evidence she presented to the
trial court that her attorney failed to inform her about the mandatory prison term. Lovell notes that
she twice testified under oath that her attorney never told her that the plea offer eliminated the
mandatory prison term. She then asserts that “[a]t no point did the Ohio Court of Appeals ever
acknowledge this contradictory evidence—let alone weigh or discredit it.” Lovell misses the point.
Just because the appellate court summarily denied her claim does not mean it failed to acknowledge,
weigh, or discredit her statements. To the contrary, the court of appeals expressly stated, in a later
opinion, that it conducted a “thorough review . . . under established law” prior to concluding Lovell
did not receive the ineffective assistance of counsel. State courts are entitled to render judgment in
summary fashion, and we must still afford those decisions their due deference under AEDPA.
Richter, 131 S. Ct. at 784–85.
Even under our modified AEDPA review of summary opinions, there are ample reasons to
support the court’s determination and to believe the court of appeals considered Lovell’s statements
but discredited them anyway. For one, Lovell’s statements were self-serving. The court may have
discredited her statements for that reason alone. For another, Lovell’s statements cut both ways.
During the hearing on Lovell’s motion for a new trial, she testified that her attorney never told her
about the mandatory prison term. But she conceded that her attorney told her what the plea bargain
was, admitted that she recalled the terms of the plea bargain, and acknowledged that he told her if
she accepted the plea bargain, it would make her eligible for probation. From these concessions,
- 10 -
No. 12-4152
Lovell v. Duffey
the court of appeals reasonably may have inferred that Lovell’s attorney also informed her that she
faced a mandatory prison term if she rejected the plea bargain and was found guilty.
2. Argument Two: The State Failed to Present Any Direct Evidence to the Contrary
Lovell next argues that the State failed to present any direct evidence that her attorney
informed her of the mandatory prison term. After Lovell had testified at the evidentiary hearing on
her motion for a new trial, the State did not call Lovell’s trial attorney as a witness to contradict
Lovell’s version of the events. But as we have already explained, there are ample reasons to believe
the Ohio Court of Appeals considered Lovell’s testimony but decided not to credit her statements.
Without sufficient evidence of ineffective assistance, Lovell failed to carry the burden of proof.
Furthermore, if Lovell wants to credit her own statements during the sentencing colloquy as direct
evidence, then she must also acknowledge as direct evidence her attorney’s statements made during
the same exchange. Lovell’s attorney stated on the record that he had informed Lovell of the
mandatory prison term. As an officer of the court, Lovell’s attorney owed a duty of candor to the
tribunal that the court of appeals might have credited in weighing these conflicting statements.
3. Argument Three: The Remaining Circumstantial Evidence Was Insufficient
Finally, Lovell argues that the remaining circumstantial evidence in the state court record
was insufficient to support a factual determination that her attorney informed her of the mandatory
prison term. Lovell had the burden to prove that her attorney failed to do so, but she did not carry
that burden here, where the remaining circumstantial evidence cuts both ways.
In Lovell’s favor, the sentencing hearing could be interpreted to show that trial counsel had
not researched the law and did not inform Lovell that she faced a mandatory prison sentence. When
- 11 -
No. 12-4152
Lovell v. Duffey
the trial court initially asked, “Do you understand that there’s mandatory time in this case?” trial
counsel responded, “What, Your Honor?” When the court repeated, “You understand the time is
mandatory? Does she understand that?” counsel offered no reply, but Lovell answered, “No.” She
expressly stated three times during the sentencing hearing that she was unaware of the mandatory
prison term, but her attorney refuted those statements only once. It was after the court explained that
it had no option but to impose a prison term that Lovell nodded her head affirmatively, perhaps to
acknowledge the court’s statement. It may be reasonable to expect, as Lovell suggests, that an
attorney who had fulfilled his obligations to inform his client of a mandatory prison term would
correct the record more vigorously. Lovell also points to counsel’s question to the trial judge about
whether there was a mandatory fine in this case (there was) to support the inference that he did not
tell her about the mandatory aspects of sentencing because he did not know about them.
In the State’s favor, counsel’s statement, “What, Your Honor?” may have indicated only that
the attorney did not hear what the court said. Counsel may not have challenged Lovell more
vigorously because he wished to avoid a confrontation with his client in open court. After the trial
judge asked Lovell if she understood the mandatory term, she nodded her head affirmatively, and
her attorney stated he thought she understood and the fact “was sinking in slowly.” Lovell did not
challenge these remarks. Counsel informed the court that he discussed the mandatory term with
Lovell once before trial. When counsel asked about a mandatory fine, he may have been reminding
the court that it was concluding a sentencing hearing without levying the required fine. Further, at
the hearing on the motion for a new trial , Lovell repeatedly acknowledged that her attorney
informed her that if she accepted the plea bargain, her charges would be reduced and she would be
- 12 -
No. 12-4152
Lovell v. Duffey
eligible for probation. She also volunteered that she rejected the plea bargain “because they wanted
to take my car, and I had no other way to get to the doctor and stuff.” On cross-examination, she
repeatedly maintained her innocence of the underlying charges. Taken together, these facts could
lead to the reasonable inference that Lovell’s attorney informed her of the mandatory prison term,
but that she proceeded to trial anyway in the hope that she would be found innocent, thereby keeping
her car.
Viewed most charitably, Lovell’s arguments still fall short of showing by “clear and
convincing evidence” that the Ohio Court of Appeals made an unreasonable factual determination.
Lovell failed to meet her burden of proof in state post-conviction proceedings before. And under
the strictures of § 2254(d)(2) and (e)(1), she fails to overcome the presumption of correctness in the
state court’s factual determination today. We therefore agree with the district court’s deference to
the state appellate court’s factual determination on this point.
B. Admissibility of the Trial Judge’s Certificate under 28 U.S.C. § 2245
Lovell also argues that the district court was required, on remand, to receive and consider
the state trial judge’s certificate under 28 U.S.C. § 2245. The State counters that in light of
Pinholster’s command limiting federal habeas review under § 2254(d) to the record before the state
court that denied post-conviction relief, the district court properly excluded the judge’s certificate
because it was not in the record before the Ohio Court of Appeals.
Section 2245 provides, in relevant part, that:
On the hearing of an application for a writ of habeas corpus to inquire into the
legality of the detention of a person pursuant to a judgment the certificate of the
- 13 -
No. 12-4152
Lovell v. Duffey
judge who presided at the trial resulting in the judgment, setting forth the facts
occurring at the trial, shall be admissible in evidence.
28 U.S.C. § 2245.
Few decisions address certificates submitted under § 2245 in federal habeas proceedings, and
even fewer decisions do so post-AEDPA or post-Pinholster. See Saunders v. Tennis, 2011 WL
2117559, at *9 (E.D. Pa. May 26, 2011) (citing cases). Nevertheless, Pinholster made clear that
federal habeas review of state court decisions adjudicated on the merits must be “backward-looking”
and focused “on what a state court knew and did” at that time. 131 S. Ct. at 1398–99. The Court
held that “[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner
must overcome the limitation of [AEDPA] on the record that was before that state court.” Id. at
1400 (emphasis added). Although the Pinholster Court issued this holding in the context of habeas
review under § 2254(d)(1), the Court noted that § 2254(d)(2) provided “additional clarity” on the
point because § 2254(d)(2) requires federal courts to review state court factual determinations “in
light of the evidence presented in the State court proceeding.” Id. at 1400 n.7.
The district court’s exclusion of the trial judge’s certificate was consistent with Pinholster.
Lovell challenges a state court decision that was adjudicated on the merits. Therefore, our review
of the state court’s factual determinations must be backward-looking and made “in light of the
evidence presented” at the time. Lovell did not present her trial judge’s certificate to the Ohio Court
of Appeals. For this reason, we may not consider it today.
Interpreting Pinholster to exclude § 2245 certificates when a habeas petitioner challenges
a state court decision made on the merits does not “read [§ 2245] out of existence,” as Lovell argues.
- 14 -
No. 12-4152
Lovell v. Duffey
Instead, and consistent with Pinholster’s logic as to federal evidentiary hearings under § 2254(e)(2),
trial judge certificates are still admissible when federal habeas courts decide claims that were not
adjudicated on the merits in state court. See Pinholster, 131 S. Ct. at 1400–01. Not all federal
habeas claims by state prisoners fall within the scope of § 2254(d), which applies only to claims
“adjudicated on the merits” in state court. Therefore, § 2245 still has force in cases in which a
federal court may admit additional evidence that was not before the relevant state court. But that
is not the class of cases to which Lovell’s claim belongs. Her claim, and our review, is limited to
the record before the Ohio Court of Appeals, which did not contain the trial judge’s certificate.
Lovell submits no case law to the contrary. The only case she cites undercuts the very
position she argues. In Saunders v. Tennis, a federal habeas court admitted a § 2245 certificate, but
it did so as part of a broader federal evidentiary hearing that considered evidence beyond the state
court record. Saunders, 2011 WL 2117559, at *5–6. The court in Saunders neither cited nor applied
Pinholster, which was issued just one month prior to the court’s ruling. Id. Thus, the district court
may have improperly considered the findings of the evidentiary hearing and improperly received the
§ 2245 certificate. See Saunders v. Tennis, 483 F. App’x 738, 745 (3d Cir. 2012) (questioning the
propriety of the federal evidentiary hearing but disposing of the case on other grounds). Regardless,
the context in which the court received the § 2245 certificate was clear: it occurred in conjunction
with a federal habeas court reviewing evidence beyond the state court record. Those are not the
circumstances in the case sub judice.
We need not reach the parties’ ancillary arguments about this particular trial certificate and
whether it even falls under § 2245. Pinholster limits review of § 2254(d) claims to the record before
- 15 -
No. 12-4152
Lovell v. Duffey
the state court that denied post-conviction relief. The trial judge’s certificate was not in the record
before the Ohio Court of Appeals. On the facts of this case, the district court properly excluded the
certificate on remand.1
IV. CONCLUSION
The district court properly applied AEDPA’s highly deferential standard of review for state
court factual determinations and properly confined its review to the record before the Ohio Court
of Appeals by excluding the trial judge’s § 2245 certificate. For these reasons, we cannot conclude
that the Ohio Court of Appeals’ decision rejecting Lovell’s ineffective assistance of counsel claim
was unreasonable under 28 U.S.C. § 2254(d). Accordingly, we affirm the district court’s denial of
Lovell’s habeas petition.
1
We note that, in Register v. Thaler, 681 F.3d 623, 627 (5th Cir. 2012), the state trial
transcript and other critical portions of the state court record were no longer available. In such
circumstances, where a federal habeas court is conducting a “look through” to the state trial court’s
factual determinations, “Pinholster does not bar the district court from re-creating, if it can, the
record that the state trial court had before it,” which could include use of the state trial judge’s
certificate under 28 U.S.C. § 2245. Register, 681 F.3d at 627 & n.14.
- 16 -