Joseph Johnson v. Kevin Genovese

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0104p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

JOSEPH LAMONT JOHNSON, JR., ┐
Petitioner-Appellant, │
│
> No. 18-5330
v. │
│
│
KEVIN GENOVESE, Warden, │
Respondent-Appellee. │
┘

Appeal from the United States District Court
for the Middle District of Tennessee at Nashville.
No. 3:14-cv-02305—Waverly D. Crenshaw, Jr., District Judge.

Argued: March 20, 2019

Decided and Filed: May 28, 2019

Before: McKEAGUE, GRIFFIN, and NALBANDIAN, Circuit Judges.
_________________

COUNSEL

ARGUED: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville, Tennessee, for
Appellant. John H. Bledsoe, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee,
for Appellee. ON BRIEF: Michael C. Holley, FEDERAL PUBLIC DEFENDER, Nashville,
Tennessee, for Appellant. Nicholas S. Bolduc, OFFICE OF THE ATTORNEY GENERAL,
Nashville, Tennessee, for Appellee.
_________________

OPINION
_________________

GRIFFIN, Circuit Judge.

Petitioner Joseph Johnson was convicted of multiple felonies in Tennessee state court
arising out of the robbery of a Nashville Taco Bell. He now seeks a writ of habeas corpus,
 No. 18-5330 Johnson v. Genovese Page 2

arguing that his Sixth Amendment right to counsel was violated by his trial counsel’s deficient
performance in the pretrial plea-negotiation phase of his state-court proceedings and that the
state court’s opposite conclusion was contrary to or involved an unreasonable application of
federal law. The district court found no basis for habeas relief and, for the reasons that follow,
we affirm.

I.

In November of 2003, petitioner and a friend robbed a Taco Bell of approximately $200
to $300. State v. Johnson, M2007-01644-CCA-R3-CD, 2009 WL 2567729 at *1–2 (Tenn. Crim.
App. Aug. 18, 2009). Police captured them shortly thereafter. Id. at *3. Petitioner was indicted
on four charges related to that robbery. Id. at *1. Attorney Paul Walwyn represented petitioner
for pretrial and trial proceedings. A few days before trial began, the state offered a plea deal for
petitioner to plead guilty to all counts in exchange “for a 20 year sentence as a range two
offender.” He allegedly rejected that offer, though the parties debate some facts surrounding the
plea process.

So he went to trial, where a Tennessee jury subsequently convicted him of all four
charges: two counts of aggravated robbery, one count of aggravated assault, and one count of
felony evading arrest, though one aggravated-robbery conviction was later changed to
aggravated assault due to double jeopardy concerns. Id. at *1, *5. The trial court sentenced him
to twenty-eight years’ imprisonment for aggravated robbery, eight years’ imprisonment for one
conviction of aggravated assault, ten years’ imprisonment on the other aggravated-assault
conviction, and eight years’ imprisonment for evading arrest, all to be served consecutively, for a
total of fifty-four years in prison. Id. On direct appeal, petitioner raised sufficiency-of-the-
evidence claims on all four convictions, challenges to his jury instructions, and challenges to his
sentences’ lengths and their consecutive nature. Id. at *5-19. The Tennessee Court of Criminal
Appeals (TCCA) affirmed, and the Tennessee Supreme Court denied him permission to appeal.
See id., perm. app. denied (Feb. 22, 2010).

Petitioner then filed a timely motion for postconviction relief in state court. Among the
numerous issues he raised was a claim of ineffective assistance of trial counsel during the plea-
 No. 18-5330 Johnson v. Genovese Page 3

negotiation process. At an evidentiary hearing on the petition, he testified that his attorney never
advised him of the 20-year plea offer until years after trial, when he received the state’s
discovery packet. When asked if he would have accepted the offer, petitioner testified variously
that “you damn skippy, with 50 something years, I would have took 20 years,” and “[i]t’s
possible, if I knew what I was facing going to trial. It’s highly likely, yes, I would have accepted
that 20 year deal.” But throughout the postconviction proceedings, petitioner maintained his
innocence of the crimes, and even speculated that he may have been misidentified.

His trial counsel, Walwyn, also testified at the hearing. On the issue of plea offers,
Walwyn stated that he

explained to [petitioner], because of his prior record, it’s, you know, the
[prosecutor] is taking a hard stance on this case. And basically they’re wanting
him to plead to a lot of time, and he said, [“]well, I’m innocent, I didn’t rob
anybody, I didn’t do it.[”] He always said the same thing . . . . But in any event,
even prior to the trial, he basically said that I’m not taking a deal of any sort.

He later reiterated that he “did relay the offer” to petitioner, but petitioner told him “he was not
taking any time for this.”

The postconviction court denied petitioner relief in a written order, crediting Walwyn’s
testimony that he communicated the offer and that petitioner was not interested in taking any
plea agreement. Petitioner again appealed to the TCCA, which again affirmed. Johnson v. State,
M2012-02310-CCA-R3-PC, 2014 WL 793636, at *1 (Tenn. Crim. App. Feb. 27, 2014). For the
first time, the TCCA expanded petitioner’s claim from one in which his trial counsel never
conveyed the plea offer to him, to an additional ineffectiveness claim—that Walwyn conveyed
the plea offer but did not advise petitioner of the much higher, consecutive sentence he could
face after trial. Id. at 7. Addressing this new formulation, the TCCA reasoned that Walwyn’s
performance was deficient, but petitioner could not establish prejudice. Id. at *8–9. The court
recited the pertinent standards for determining ineffective assistance in the plea context and
specifically quoted Lafler v. Cooper, 566 U.S. 156 (2012), for the standard a defendant must
meet to show prejudice in the plea-negotiation context. Johnson, 2014 WL 793636, at *8–9.
The court reasoned that, despite the big disparity between the plea offer and the possible
sentence petitioner faced after trial, he could not show prejudice because he was uninterested in
 No. 18-5330 Johnson v. Genovese Page 4

takin any plea offer at the time. Id. at *9. The Tennessee Supreme Court again denied him
permission to appeal. See id., perm. app. denied (Jul. 14, 2014).

Petitioner then timely filed this petition for habeas corpus. He raised numerous claims of
ineffective assistance, including that Walwyn provided constitutionally deficient counsel during
the plea-negotiation stage. In a thorough opinion, the district court dismissed the petition. On
the pertinent ineffective-assistance issue, the district court determined that the TCCA opinion did
not contradict or unreasonably apply clearly established federal law, nor did that court base its
decision on an unreasonable determination of the facts. We granted a certificate of appealability
limited to his claim of ineffective assistance during plea bargaining.

II.

“In an appeal from the denial of habeas relief, we review the district court’s legal
conclusions de novo and its factual findings for clear error.” Scott v. Houk, 760 F.3d 497, 503
(6th Cir. 2014) (citation omitted). Under the Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), we can overturn a state conviction for an issue adjudicated on the merits only if
the relevant state-court decision was (1) “contrary to, or involved an unreasonable application
of, clearly established Federal law, as determined by the Supreme Court of the United States;” or
(2) “based on an unreasonable determination of the facts in light of the evidence presented.”
28 U.S.C. § 2254(d). When a habeas petition arising under § 2254(d) is based upon a claim of
ineffective assistance of counsel, relief is all the more difficult to come by. The standard for
§ 2254(d) relief and the test for ineffective assistance under Strickland v. Washington, 466 U.S.
668 (1984), are each “highly deferential.” Harrington v. Richter, 562 U.S. 86, 105 (2011)
(quoting Strickland, 466 U.S. at 689). “[A]nd when the two apply in tandem, review is ‘doubly’
so.” Id. (quoting Knowles v. Mirzayance, 556 U.S. 111, 123 (2009)).

III.

The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall . . .
have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. It includes “the right to
effective counsel—which imposes a baseline requirement of competence.” United States v.
Gonzalez-Lopez, 548 U.S. 140, 148 (2006) (emphasis added). And it applies at all critical stages
 No. 18-5330 Johnson v. Genovese Page 5

of criminal litigation, including pretrial plea proceedings. Logan v. United States, 910 F.3d 864,
868 (6th Cir. 2018) (citing Missouri v. Frye, 566 U.S. 134, 140 (2012)). A defendant who rejects
or otherwise misses out on a formal plea offer because of deficient performance or erroneous
advice can establish ineffective assistance of counsel only if he satisfies the well-known
Strickland standard. Lafler, 566 U.S. at 172–74.

Under Strickland’s two-part framework, a criminal defendant claiming ineffective
assistance during plea negotiations must prove that (1) counsel’s performance was deficient, i.e.,
“counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the
defendant by the Sixth Amendment,” and (2) the deficient performance prejudiced the defense.
466 U.S. at 687. The parties essentially agree (or don’t contest) that defendant’s trial counsel
performed deficiently. We too assume as much and turn our attention to prejudice. “To show
prejudice from ineffective assistance of counsel where a plea offer has lapsed or been rejected
because of counsel’s deficient performance, defendants must demonstrate a reasonable
probability they would have accepted the earlier plea offer had they been afforded effective
assistance of counsel.” Frye, 566 U.S. at 147.

Recognizing the high bar AEDPA has placed in front of him, petitioner raises challenges
to three aspects of the TCCA decision: (1) that court’s erroneous legal analysis of the ineffective-
assistance issue, (2) its incorrect and unreasonable factual determination about his willingness to
accept a plea, and (3) its unreasonable application of the law to the facts. We address each
contention in turn.

A.

Petitioner’s first argument is that the TCCA legally erred by applying an impermissibly
high burden of proof to his charge of ineffective assistance of counsel. We disagree. For this, he
focuses on two sentences in the TCCA’s opinion:

In light of the postconviction court’s factual finding that the petitioner was “not
interested in taking any plea” and other evidence suggesting that the petitioner
was not interested in plea bargaining, we conclude that the petitioner has failed to
establish by clear and convincing evidence that he would have taken the twenty-
year plea offer. Accordingly, the petitioner has not shown a reasonable
probability that, but for trial counsel’s failure to alert him to his potential
 No. 18-5330 Johnson v. Genovese Page 6

sentencing exposure, the plea offer would have been presented to and accepted by
the sentencing court.

Johnson, 2014 WL 793636, at *9 (emphasis added). That clear-and-convincing-evidence
standard, petitioner claims, is contrary to clearly established federal law.

Petitioner must show that the state court “arrive[d] at a conclusion opposite to that
reached by [the Supreme Court] on a question of law” or that it “confront[ed] facts that are
materially indistinguishable from a relevant Supreme Court precedent and arrive[d] at a result
opposite” to that reached by the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405 (2000).
AEDPA’s “contrary to” clause means “‘diametrically different,’ ‘opposite in character or
nature,’ or ‘mutually opposed.’” Id. (quoting Webster’s Third New International Dictionary 495
(1976)). “The text of § 2254(d)(1) therefore suggests that the state court’s decision must be
substantially different from the relevant precedent of [the Supreme] Court.” Id.; see also Ivory v.
Jackson, 509 F.3d 284, 291 (6th Cir. 2007).

In Lafler, the Supreme Court reiterated that the Strickland prejudice standard applied to
plea-bargaining. 566 U.S. at 163. In this context, a defendant must show that the outcome of the
plea process would have been different with competent advice. Id. And when counsel’s
deficient advice leads to the rejection of a plea, “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 . . . , 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.” Id. at 164 (emphasis added).

A reasonable probability, the Court has held, “is a probability sufficient to undermine
confidence in the outcome,” which “requires a substantial . . . likelihood of a different result,”
“not just [a] conceivable” one. Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quoting
Strickland, 466 U.S. at 694; Harrington, 562 U.S. at 112) (internal quotation marks omitted).
But the standard does not “require a showing that counsel’s actions ‘more likely than not altered
the outcome.’” Harrington, 562 U.S. at 111–12 (quoting Strickland, 466 U.S. at 693). Instead,
it is sufficient to show that a different outcome was “reasonably likely.” Id. at 111 (quoting
Strickland, 466 U.S. at 696). In any event, petitioner argues that the proper prejudice standard
 No. 18-5330 Johnson v. Genovese Page 7

under Supreme Court precedent falls well short of the “clear and convincing” standard the TCCA
applied.

The district court held that Holland v. Jackson, 542 U.S. 649 (2004) (per curiam),
controlled on this issue, and required the rejection of petitioner’s claim. In Holland, the Supreme
Court reversed our court, concluding that we erred in “holding that the state court acted contrary
to federal law by requiring proof of prejudice by a preponderance of the evidence standard rather
than by a reasonable probability.” Id. at 654. There, as here, the opinion we interpreted came
from the TCCA. The Supreme Court noted that the TCCA began its analysis in that case by
reciting the correct Strickland standard, before stating that, “[i]n a post-conviction proceeding,
the defendant has the burden of proving his allegations by a preponderance of the evidence.” Id.
(emphasis added). But the court disagreed with our interpretation of that statement as applying a
higher burden on the defendant:

In context, however, this statement is reasonably read as addressing the general
burden of proof in postconviction proceedings with regard to factual
contentions—for example, those relating to whether defense counsel’s
performance was deficient. Although it is possible to read it as referring also to
the question whether the deficiency was prejudicial, thereby supplanting
Strickland, such a reading would needlessly create internal inconsistency in the
opinion.

Id. After noting two other portions of the TCCA opinion that this court erroneously faulted for
applying an incorrect burden, the Court chastised us for violating two of its prescriptions in state-
habeas cases: (1) “state-court decisions [must] be given the benefit of the doubt,” and
(2) “[r]eadiness to attribute error is inconsistent with the presumption that state courts know and
follow the law.” Id. at 655 (quoting Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam)).
Therefore, the Court reversed our grant of habeas relief to the defendant. Id.

The district court correctly concluded Holland controls on this issue. Treating the
TCCA’s reference to a “clear and convincing evidence” standard and a “reasonable probability”
standard in back-to-back sentences as a clear legal error “is inconsistent with the presumption
that state courts know and follow the law.” Id. Earlier in the opinion, in the standard of review
section, the TCCA cited Tenn. Code Ann. § 40-30-110(f) for the proposition that “a petitioner
must prove his allegations of fact by clear and convincing evidence” in postconviction
 No. 18-5330 Johnson v. Genovese Page 8

proceedings. Johnson, 2014 WL 793636, at *6.1 Thus, as in Holland, a fair reading of the
opinion is that the “clear and convincing evidence” line “address[es] the general burden of proof
in postconviction proceedings with regard to factual contentions.” 542 U.S. at 654.

And the TCCA opinion bolsters our conclusion by listing, immediately before the “clear
and convincing evidence” sentence, three pieces of “evidence which suggest[ed] the petitioner
would not have accepted any plea offer.” Johnson, 2014 WL 793636, at *9. First, the TCCA
determined that “petitioner’s own testimony on the issue was equivocal, as he testified at times
that he would have taken the offer and at other times that it was ‘highly likely’ or ‘possible’ that
he would have.” Id. Second, it noted that he “maintained his innocence throughout the trial and
post-conviction proceedings.” Id. Third, the TCCA cited the postconviction court’s crediting of
petitioner’s counsel, who “testified that petitioner was adamantly opposed from the beginning to
taking a plea offer, and [who] testified that the petitioner did not want to plead guilty because he
steadfastly maintained that he was innocent of the crime.” Id. Thus, reading this opinion
without readiness to attribute error, the TCCA opinion can reasonably be interpreted as holding
that petitioner failed to rebut these factual conclusions made by the postconviction trial court.
See Holland, 542 U.S. at 655.

As a result, the opinion is best read as merely noting the Tennessee rule in postconviction
proceedings that a petitioner must prove his allegations of fact by clear and convincing evidence.
And the propriety of the court’s decision is reinforced by its express use of the correct
standard—“a reasonable probability”—in coming to its conclusion. Johnson, 2014 WL 793636,
at *9. To read the TCCA’s opinion as petitioner urges “would needlessly create internal
inconsistency in the opinion,” Holland, 542 U.S. at 654, and would force us to ignore the
TCCA’s recitation of the Strickland/Lafler standard in the very next sentence. Instead, reading
the opinion fairly, the TCCA’s decision is neither contrary to, nor or does it involve an
unreasonable application of, clearly established federal law, 28 U.S.C. § 2254(d)(1), and the
deferential review we apply to state-court decisions precludes relief on this issue.

1This rule is consistent with AEDPA’s own rules and standards for factual determinations. See 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.”).
 No. 18-5330 Johnson v. Genovese Page 9

Petitioner’s attempt to distinguish Holland is unpersuasive. He argues that “Holland . . .
is nothing like the instant case because in Holland the TCCA made no clear error,” and the
TCCA’s statement at issue in that case “was completely true as long as one understood it to refer,
in accordance with the governing statute, to allegations ‘of fact’—and there was no reason to
understand that statement to mean otherwise.” But the same is true here. Both cases involve the
argument that the TCCA applied an improperly burdensome standard to a claim of ineffective
assistance of counsel, contrary to Supreme Court caselaw. And, in Holland, the Supreme Court
chastised us for treating an ambiguous statement as legal error because we failed to give the
state-court opinion the benefit of the doubt. 542 U.S. at 654–55. As noted above, ruling in
petitioner’s favor would risk the exact same interpretive error—it is just as likely in this case as it
was in Holland that the state court applied the higher burden to factual assertions, not the
Strickland/Lafler prejudice prong. Id.

Holland notwithstanding, petitioner directs us to Vasquez v. Bradshaw, 345 F. App’x 104
(6th Cir. 2009), which he claims is more analogous to this case. There, we granted a petitioner
habeas relief, holding that the Ohio courts did not follow Strickland’s clearly established law
because “the court stated that prejudice occurs only when ‘the result of petitioner’s trial or legal
proceeding would have been different had defense counsel provided proper representation.’” Id.
at 110. But Vasquez is unpublished (and therefore not binding on us) and fails to marshal
support for petitioner’s result because the majority’s reasoning in that case is not persuasive. As
noted by the Vasquez dissent, the majority made a number of analytical errors that undercut its
conclusion, and its reasoning was contrary to Holland. See id. at 122–34 (Griffin, J., dissenting)
(outlining the numerous analytical errors in the majority opinion).2

2And even if Vasquez were both persuasive and binding on this panel, its reasoning would not control this
case because the majority relied upon various deficiencies that aren’t present here. For example, the Ohio court
expressed an allegedly erroneous standard for prejudice and then directly relied on it in its analysis. Id. at 110–11
(majority op.). But here, immediately after stating the higher burden plaintiff alleges the TCCA applied, the opinion
reiterated the correct Strickland/Lafler standard and concluded that petitioner did not meet it. Johnson, 2014 WL
793636, at *9. Thus, the TCCA here inoculated itself against concerns that it did not know or apply clearly
established federal law. See Woodford, 537 U.S. at 23–24 (noting that a conclusion that a state court held the
respondent to a higher standard of proof than Strickland required based on three or four shorthand references,
despite numerous citations of and quotations from Strickland, was error).
 No. 18-5330 Johnson v. Genovese Page 10

Finally, and only in his reply brief, petitioner argues that the TCCA erred in applying the
clear-and-convincing-evidence standard to the question of whether he would have taken the
twenty-year plea offer because, under Tennessee law, the clear-and-convincing-evidence
standard only applies to issues of historical fact, not the question of whether petitioner
hypothetically would have accepted the plea deal had he received effective counsel. We
typically do not entertain arguments raised for the first time in the reply brief. United States v.
Galaviz, 645 F.3d 347, 362 (6th Cir. 2011). But even addressing that argument does petitioner
no better. Giving the opinion the benefit of the doubt, Holland, 542 U.S. at 655, it is clear that
the TCCA properly applied its own law. But again, immediately preceding the statement about
clear and convincing evidence, the TCCA noted three relevant factual determinations:
petitioner’s equivocal testimony, his consistent assertions of innocence, and his counsel’s
credited testimony that petitioner was completely uninterested in any plea. Johnson, 2014 WL
793636, at *9. These determinations—factual findings and credibility determinations—are
exactly what Tennessee law requires clear and convincing evidence to refute. See Tenn. Code
Ann. § 40-30-110(f).

Given the TCCA’s citation of the controlling law (Strickland and Lafler) and the
frequency that the proper standard (“reasonable probability”) peppers the opinion—including
immediately after the allegedly offending “clear and convincing evidence” statement—the
TCCA did not act contrary to federal law. See Holland, 542 U.S. at 654–55. And even if we
were to disagree with the TCCA on how it applied Strickland/Lafler, our disagreement would
certainly be “fair-minded.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004); see also
Harrington, 562 U.S. at 102 (noting that even when a federal court of appeals “had little doubt”
it would find ineffective assistance under de novo review, a state court’s opposite conclusion is
not necessarily unreasonable). In sum, petitioner cannot overcome AEDPA’s high bar on this
ground.

B.

Next, petitioner contends that the TCCA made an unreasonable finding of fact when it
concluded that he was equivocal on whether he would have accepted the 20-year plea offer had
 No. 18-5330 Johnson v. Genovese Page 11

he known the actual amount of prison time he faced after trial. Again, we find no error sufficient
to overcome AEDPA’s substantial deference to state-court decisions.

Under AEDPA, we may only grant a petition for habeas corpus if the state-court
“adjudication of the claim . . . 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)(2). Furthermore, “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.” 28 U.S.C. § 2254(e)(1).
“[A] state-court factual determination is not unreasonable merely because the federal habeas
court would have reached a different conclusion in the first instance.” Wood v. Allen, 558 U.S.
290, 301 (2010). And we apply the same deference “even to state-court factual findings made on
appeal.” Franklin v. Bradshaw, 695 F.3d 439, 447 (6th Cir. 2012) (citing Rushen v. Spain,
464 U.S. 114, 120 (1983); Sumner v. Mata, 449 U.S. 539, 546–47 (1981)).

Petitioner claims that he was consistent in his testimony that he would have accepted the
plea offer had he been properly advised, and that the TCCA mischaracterized his testimony by
cherry-picking his single use of the word “possible” and amplifying its meaning. Given the
TCCA’s determination, it is important to consider exactly what petitioner said at the hearing.
First, on direct examination:

Q. Okay. So it’s your position that Mr. Walwyn never conveyed this 20 year
offer to you?
A. No.
Q. If he had, would you have taken it?
A. I don’t mean no disrespect, but you damn skippy, with 50 something years, I
would have took 20 years.

Then, on cross-examination:

Q. Were you saying that if you would have known about it, you would have
plead[ed] guilty to a 20 year sentence on aggravated robbery?
A. It’s possible, if I knew what I was facing going to trial. It’s highly likely, yes,
I would have accepted that 20 year deal.
Q. But you’ve been telling us all morning, you didn’t commit a robbery?
 No. 18-5330 Johnson v. Genovese Page 12

A. The point is, if I’m facing 54 years and my attorney would have explained to
me, under any circumstance, I would have taken 20 at 35 percent, if I was facing a
jay walking.
Q. You threw out the time that you were charged before this trial happened,
insisted that you were innocent of these charges, right?
A. True. I tell you I’m innocent today.
Q. You still say [you’re] innocent?
A. Most definitely.
Q. But you would have plead[ed] guilty to aggravated robbery, you’re claiming --
A. With my background, it’s to the best interest of anybody coming in these
systems.
Q. Because you have multiple robberies in your record?
A. I have a background, yes, I have been -- I committed those charges, and I
actually plead[ed] guilty to them, because I was guilty. I went to trial on this
charge because I wasn’t guilty. And if I would have knew that I was, could have
received a 20 year sentence and my attorney would have consulted me and let me
know what I was facing, I would have took the 20 years.

(Emphasis added).

Petitioner argues that the TCCA gave undue weight to his use of the word “possible”
during cross-examination because “possible” has two distinct meanings: one, the opposite of
impossible; the other, a word specifically chosen to reflect a degree of probability (less than
probable but within the realm of possibility). He further argues that the context of the quote
shows that he used “possible” in the first sense—the opposite of “impossible”—and that nothing
about his answers on this topic justify a conclusion that he ever meant a probability less than
likely. This is a sensible interpretation of his testimony. And it might even be the best
interpretation, given the context. But that does not require the conclusion that the TCCA was
unreasonable for determining that his use of “possible” showed equivocation. See Wood, 558
U.S. at 301. As the Supreme Court has held, state courts are in a far better position than federal
courts to make such findings of fact or credibility, and their conclusions “deserve[] a high
measure of deference.” Rushen, 464 U.S. at 120 (internal quotation marks omitted). The district
court correctly concluded that “[a]lthough [petitioner]’s reading of the transcript is plausible, so
too is that of the TCCA.”
 No. 18-5330 Johnson v. Genovese Page 13

Moreover, the TCCA did not rely solely on this factual determination. Instead, the
TCCA based its conclusion on petitioner’s equivocal testimony, his consistent assertions of
innocence throughout trial and postconviction proceedings, and Walwyn’s testimony that
petitioner told him he wasn’t interested in taking any plea agreement at all. Johnson, 2014 WL
793636, at *9. Taking this evidence collectively, then, the TCCA was not unreasonable in
determining that petitioner was uninterested in taking any plea. Wood, 558 U.S. at 301.
Petitioner’s arguments are insufficient to overcome AEDPA’s required deference to state courts
on factual determinations.

C.

Finally, petitioner claims that the TCCA unreasonably applied the law to the facts when it
ignored that the Strickland prejudice test is objective, not subjective, and wrongly gave more
weight to petitioner’s equivocal statements than the fact that any reasonable defendant in his
shoes would have been motivated to take the favorable plea bargain. But yet again, he has not
met his heavy burden under AEDPA.

In this argument, petitioner relies on our opinion in Sawaf v. United States, 570 F. App’x
544 (6th Cir. 2014). There was little doubt that Sawaf’s defense counsel was deficient for
“fail[ing] to advise him about the applicable sentencing guidelines at any time prior to his trial.”
Id. at 546. This court found presumptive prejudice from his counsel’s deficient performance due
to the difference between the plea offer (just over three years) and the sentence the petitioner
received after conviction (twenty years). Id. at 547. We criticized the district court because,
although it “acknowledged the general presumption of prejudice ‘created by the significant
disparity between the plea offered and the ultimate sentence,’” id. at 548, it nonetheless
concluded that Sawaf had failed to show that he would have accepted the government’s offer:

[T]he district court should have started its analysis by assuming that Sawaf had
been prejudiced with regard to the plea negotiations, and then asked whether there
was evidence to rebut that presumption. Instead, the district court determined that
Sawaf’s claim that he would have entered a guilty plea if adequately informed
was not credible, given Sawaf’s continued insistence that he was innocent, prior
to and during the trial, after the trial, and even during the evidentiary hearing, and
effectively declined to credit Sawaf with the applicable presumption of prejudice.
 No. 18-5330 Johnson v. Genovese Page 14

Id. Though we gave clear-error deference to the trial court’s credibility determination, we still
reversed for failure to credit Sawaf with the presumption he was due. Id.

Sawaf fails to provide petitioner relief for three reasons. First, Sawaf is distinguishable
because it analyzed a petition arising under 28 U.S.C. § 2255, not § 2254, and therefore
AEDPA’s “double deference” did not apply. See Harrington, 562 U.S. at 105. Second, and
related to the first point, because petitioner’s case is governed by AEDPA, only state-court
decisions that are “contrary to, or involve[] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” merit habeas relief. 28
U.S.C. § 2254(d)(1) (emphasis added). Sawaf is an opinion of this court (and unpublished at
that); therefore, it does not constitute “clearly established Federal law.” Id.

Third and finally, it is not at all clear that the TCCA opinion violates Sawaf’s
prescription. There, we held that a large sentencing disparity between a plea offer and the
sentence received after trial establishes a mere presumption of prejudice that may be rebutted.
570 F. App’x at 548. But that’s exactly what the TCCA did here. As we have discussed
throughout this opinion, after noting that rule, the fact that “[t]he Sixth Circuit does not require a
defendant to support his own assertion that he would have accepted the offer with additional
objective evidence,” and the government’s strong case against petitioner, the court proceeded to
rebut that presumption with its factual findings on petitioner’s equivocal testimony, his
assertions of innocence, and his attorney’s credited statements. Johnson, 2014 WL 793636, at *9
(citing Griffin v. United States, 330 F.3d 733 (6th Cir. 2003); Smith v. United States, 348 F.3d
545 (6th Cir. 2003). While petitioner might argue the merits of the TCCA’s weighing of that
evidence, that court at least followed the procedures and presumptions we required in Sawaf. In
sum, he is not entitled to relief on this ground either.

IV.

We affirm the judgment of the district court.