In the
United States Court of Appeals
For the Seventh Circuit
No. 19-1378
ABDULLAH T. ALKHALIDI,
Petitioner-Appellant,
v.
RON NEAL,
Respondent-Appellee.
Appeal from the United States District Court for the
Northern District of Indiana, South Bend Division.
No. 3:17-cv-00185-PPS-MGG — Philip P. Simon, Judge.
ARGUED NOVEMBER 4, 2019 — DECIDED JUNE 29, 2020
Before WOOD, Chief Judge, and BAUER and BRENNAN, Circuit
Judges.
BAUER, Circuit Judge. Abdullah Alkhalidi (“Alkhalidi”) was
convicted of murder, robbery, and theft. He appealed, claiming
that his attorney failed to advise him of a plea offer. The
Indiana state court denied relief, holding Alkhalidi’s innocence
claim strongly indicated he would not have accepted the plea
2 No. 19-1378
deal. The state court also held that Indiana requires a defen-
dant to admit a plea deal’s factual basis otherwise the trial
court would be prevented from entering the plea. Alkhalidi
filed for habeas corpus relief and the district court denied the
petition. For the following reasons, we affirm.
I. BACKGROUND
On May 3, 1999, Alkhalidi was seen leaving a casino with
another man (“the victim”). The victim was found dead a few
days later with a gunshot wound to the head. Police found the
victim’s license plate and driver’s license, blood in Alkhalidi’s
car, a gun, and other incriminating evidence in Alkhalidi’s
possession. In 2000, a jury convicted Alkhalidi of murder,
robbery, and theft, and he was sentenced to a total of 65 years
by the state trial court. The Indiana Supreme Court affirmed
the first trial conviction on direct review. Although the record
does not reflect the reason, the state trial court later granted a
petition for post-conviction relief and ordered a new trial.
In September of 2007, Alkhalidi, his attorney, and the
prosecutor met to discuss a plea deal. Following the meeting,
the prosecutor proposed a plea offer with a strict deadline.
On September 13, the prosecutor sent a letter to Alkhalidi’s
attorney that stated the best offer he could extend would be for
Alkhalidi to plead guilty to robbery and auto theft. The letter
stated the offer’s deadline would be September 21, 2007.
In October, Alkhalidi moved to replace his attorney. The
court held a pretrial hearing, wherein Alkhalidi discussed the
plea negotiations and complained that his attorney did not
advise him of the offer before it expired. Alkhalidi expressed
No. 19-1378 3
dissatisfaction with the plea and indicated he had a desire to
counteroffer. The court denied Alkhalidi’s motion.
At the retrial, Alkhalidi testified that his former roommate
killed the victim in Alkhalidi’s vehicle while Alkhalidi fol-
lowed in a car he planned to sell as part of an insurance fraud
scheme. Alkhalidi admitted to helping hide the body and
receiving stolen money but denied any other involvement. A
jury found Alkhalidi guilty on all counts and the trial court
imposed a sentence of 65 years. The Indiana Court of Appeals
affirmed the conviction.
In 2010, Alkhalidi filed a petition for post-conviction relief
and, in 2014, Alkhalidi filed an amended petition. In 2015, the
court held a post-conviction hearing. Alkhalidi testified that he
would have accepted the offer or made a counteroffer. The trial
court denied relief because Alkhalidi “maintained his inno-
cence throughout the course of the proceedings” and failed to
establish his acceptance of the plea offer. Indiana requires a
defendant to admit the factual basis of the plea, otherwise the
court is unable to accept the plea. Because Alkhalidi failed to
establish prejudice, his petition was denied. The Indiana Court
of Appeals affirmed.
Alkhalidi filed a federal writ of habeas corpus relief with
the district court. The district court held that the Indiana Court
of Appeals reasonably determined that Alkhalidi suffered no
prejudice and rejected the argument that the state court erred
by requiring Alkhalidi to establish the outcome of the trial
would have been different instead of requiring a reasonable
probability of a different outcome. The district court further
4 No. 19-1378
found that two of Alkhalidi’s claims were procedurally
defaulted. Alkhalidi timely appealed.
II. DISCUSSION
We review de novo the district court’s denial of a habeas
petition. Taylor v. Bradley, 448 F.3d 942, 948 (7th Cir. 2006). A
federal court may grant habeas corpus relief for a state pris-
oner who is “in custody in violation of the Constitution or laws
or treaties of the United States.” 28 U.S.C. § 2254(a). However,
the relief is limited. “Federal habeas review thus exists as ‘a
guard against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through
appeal.’” Woods v. Donald, 575 U.S. 312, 316–17 (2015) (citing
Harrington v. Richter, 562 U.S. 86, 102–03 (2011)). “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.” Burt v. Titlow, 571
U.S. 12, 15 (2013) (citing Cullen v. Pinholster, 563 U.S. 170, 190
(2011)). The petitioner must show the state court’s decision
“was contrary to, or involved an unreasonable application of,
clearly established Federal law” or “was based on an unreason-
able determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U.S.C. § 2254(d).
The Sixth Amendment guarantees defendants a right to
adequate assistance of counsel at the “critical stages” of
litigation, including plea bargaining. Missouri v. Frye, 566
U.S. 134, 140 (2012). Claims of ineffective assistance of counsel
in the plea bargaining process require a petitioner to show
No. 19-1378 5
“counsel’s representation fell below an objective standard
of reasonableness” and not “reasonable considering all the
circumstances.” Strickland v. Washington, 466 U.S. 668, 688
(1984); Hill v. Lockhart, 474 U.S. 52 (1985). The petitioner must
also demonstrate a reasonable probability that, but for coun-
sel’s errors, the outcome would have been different. Strickland,
466 U.S. at 694. Prejudice exists if there is a reasonable proba-
bility that the petitioner, prosecutor, and court would have
accepted the plea. Frye, 566 U.S. at 147.
Here, Alkhalidi is unable to show prejudice. Alkhalidi fails
to show the state court’s decision “was contrary to, or involved
an unreasonable application of, clearly established Federal
law” and therefore we consider whether the decision “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).
Alkhalidi fails to provide evidence that the state court erred
in determining that he failed to meet his burden that he would
have accepted the plea. Alkhalidi was inconsistent with his
inclination to accept a plea offer. The record shows multiple
instances where Alkhalidi expressed dissatisfaction with the
plea process and indicated he was more interested in making
a counteroffer. While stating his attorney informed him of
the plea but failed to provide him with the letter, Alkhalidi
misunderstood certain technical aspects including pleading
guilty to lesser uncharged crimes. He claims he would have
made a counteroffer to the prosecution. However, no evidence
in the record suggests that Alkhalidi made any attempt to
counteroffer within the six months before trial. Not until seven
years later does Alkhalidi say he would have accepted the plea
6 No. 19-1378
or at the least, submit a counteroffer. Even that is not unequi-
vocal.
A reasonable probability of Alkhalidi accepting a plea deal
is unpersuasive considering his insistence on counteroffers. A
counteroffer is, in essence, a rejection of the first offer. Rejected
offers do not remain on the table to be accepted at a later date,
which would leave no reasonable probability of Alkhalidi
accepting the plea offer. “A prosecutor is under no duty to plea
bargain at all, or to keep an offer open, as the offer remains in
the discretion of the prosecutor.” Manges v. State, 860 N.E.2d
928 (Ind. Ct. App. 2007). Nothing in the record shows any
reasonable probability Alkhalidi would have pleaded guilty.
Even if we were convinced Alkhalidi would accept the plea
deal, a reasonable probability the prosecutor and trial court
would have accepted the plea deal is unpersuasive for the
simple reason that Indiana requires the defendant to admit the
factual basis of the plea. Norris v. State, 896 N.E.2d 1149, 1152
(Ind. 2008). The record shows that Alkhalidi remained commit-
ted to advocating his innocence and showed no probability of
abating.
Finally, Alkhalidi fails to meet the demanding doubly
deferential standard that provides the benefit of the doubt to
the state court and the defense attorney. He fails to show that
no possibility existed that fair-minded jurists could disagree
with his claims and that the state court’s decision conflicts with
the prejudice prong of Strickland. The state court was reason-
able in finding Alkhalidi has not established he would have
accepted the plea and the state court would have accepted the
plea even if he had taken it. The district court properly held
No. 19-1378 7
that because Alkhalidi failed to present his remaining claims to
the state court, they are procedurally defaulted and we decline
review of those claims.
III. CONCLUSION
The judgment of the district court is AFFIRMED and the
writ of habeas corpus is hereby denied.