concurring.
I fully concur with the lead opinion’s conclusion that Miller’s and Haynes’s counsel were constitutionally ineffective because of their lawyers’ failure to inform the petitioners that the state could appeal the decision of the trial judge to sentence them as juveniles. My reason for writing separately is to explain, in what I regal’d as an extremely close case, why I find the well-written dissenting opinion less persuasive than the lead opinion.
Like the lead opinion, I believe that the Michigan Court of Appeals’s determination that Miller’s and Haynes’s counsel performed competently was an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The dissent, in contrast, finds counsels’ performance to be constitutionally competent, a conclusion with which I disagree for several reasons.
First, in reaching the conclusion that the petitioners’ counsel provided competent representation, the dissent does not address the failure of counsel to inform Miller and Haynes that the state could appeal the trial judge’s sentencing decisions. The dissent instead focuses solely on whether counsels’ strategy was reasonable in light of their knowledge of the trial judge’s sentencing tendencies, thereby overlooking the very omission that in my opinion rendered the performance of the petitioners’ counsel deficient.
Second, because Miller’s and Haynes’s counsel never considered the possibility of *584the state appealing the trial judge’s sentencing decisions, their advising the petitioners to plead guilty to first-degree murder cannot be considered a reasonable strategic decision to which deference should be accorded. Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052 (explaining that “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation”). As the lead opinion notes, a reasonable attorney would have considered the possibility of an appeal before advising Miller and Haynes to plead guilty under the circumstances of the present case.
Finally, I believe that the dissent’s consideration of the strength of the state’s case against the petitioners in assessing whether counsel provided competent representation, including the suggestion that their only available defense was a hope for jury nullification, focuses on the wrong issue. The petitioners, in my opinion, were entitled to be advised of the possibility of an appeal before deciding whether to plead guilty, because without that knowledge their decisions were not based upon all of the relevant facts. Although the Supreme Court has held that the Sixth Amendment does not require a correct assessment of the risks and benefits of pleading guilty as opposed to proceeding to trial, it recognizes that counsel must at least be aware of such risks, especially where the lack of awareness directly impacts the reasoning behind whatever advice is provided. See McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (“Questions like these [relating to the risks of trial] cannot be answered with certitude; yet a decision to plead guilty must necessarily rest upon counsel’s answers, uncertain as they may be.”); United States v. Hanley, 906 F.2d 1116, 1121 (6th Cir.1990) (recognizing that “a reversal for ineffective assistance would be in order” if the defendant had pled guilty solely in reliance upon his counsel’s erroneous advice “that he would be eligible for parole in one-third the time he received for sentence”).
I also agree with the lead opinion that if counsel had informed Miller and Haynes that the state could appeal the trial judge’s sentencing decisions, a reasonable probability exists that both petitioners would have proceeded to trial rather than plead guilty. In considering Strickland’s “prejudice” prong, we are not bound by AED-PA’s deferential standard of review, because the Michigan Court of Appeals never reached the issue of prejudice when it determined that counsels’ performance was not deficient. See Gonzales v. McKune, 247 F.3d 1066, 1075-76 (10th Cir.2001) (explaining that because the state court considered only two of three requirements necessary to establish a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), a de novo standard of review applied to the third element). I therefore believe that the dissent’s application of AEDPA’s “objectively unreasonable” test to the prejudice component of Strickland is not appropriate. Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (clarifying the meaning of an “unreasonable application” of law under 28 U.S.C. § 2254(d)(1)).
The dissent concludes that Miller’s and Haynes’s efforts to withdraw their guilty pleas constituted attempts to get “a second bite at the apple,” and that the petitioners entered their guilty pleas voluntarily and with full knowledge of the possible sentences that they faced. I respectfully disagree. Although Miller heard the prose*585cutor inform the trial judge that the state would appeal if Miller were sentenced as a juvenile, this statement came eleven months after his guilty plea, and was immediately neutralized by his counsel telling him not to worry about any appeal. This advice once more disguised the additional risk of an appeal that Miller faced. Moreover, the record supports a finding that Miller’s and Haynes’s counsel, not the petitioners, made the decisions to pursue the appeals for their respective clients. There is no indication that anyone informed Miller or Haynes of the possibility of withdrawing their guilty pleas prior to sentencing or during the state’s appeal of their sentences. I do not believe that Miller and Haynes should be penalized for what appears to be the decisions of their counsel to pursue the state-court appeals. Thus, the dissent’s inference that Miller and Haynes were “gaming the system” is, in my opinion, unwarranted under these circumstances.
With respect to whether Miller and Haynes entered their guilty pleas knowingly and intelligently, I believe that the dissent underestimates the significance of a possible appeal in any calculation that the petitioners or their counsel made. Miller and Haynes might have believed that they had, say, an 80% chance of being sentenced as juveniles by the particular trial judge before whom they pled guilty. If they had been advised that the state could appeal, however, they might have evaluated the odds of the trial judge’s determinations being sustained on appeal as only 50-50. The risk of the trial judge’s sentencing decisions being reversed on appeal would, in this example, reduce the ultimate likelihood of Miller and Haynes being sentenced as juveniles from 80% to only 40%.
We are unable, of course, to determine the exact odds that Miller and Haynes believed that they faced prior to pleading guilty, but the above example illustrates the significance of failing to consider the possibility of the state appealing. The fact that Miller and Haynes were aware of the maximum penalty that they faced does not, therefore, negate the significance of the information that neither they nor their counsel considered. Perhaps Miller and Haynes would have pled guilty even if they had known that the trial judge’s sentencing decisions were not the only hurdle that they had to overcome in order to be sentenced as juveniles. But they were entitled to be advised of all the risks that they faced before choosing to plead guilty and foregoing their rights to jury trials.
Because I am not confident that Miller and Haynes would have pled guilty if their counsel had informed that their sentences could be appealed, I concur with the lead opinion in concluding that the decision of the Michigan Court of Appeals was an unreasonable application of Strickland. 28 U.S.C. § 2245(d)(1) (providing that a writ of habeas corpus is available for a person in state custody if the state court’s adjudication of the petitioner’s claim “resulted in a decision that ... involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States”); Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”); Strickland, 466 U.S. at 694, 104 S.Ct. 2052 (“A reasonable probability is a probability sufficient to undermine confidence in the outcome.”).