In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 21-2416
RAY O. CROWELL, JR.,
Petitioner-Appellant,
v.
MARK R. SEVIER, Warden,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:20-cv-01450-RLY-MJD — Richard L. Young, Judge.
____________________
ARGUED MARCH 27, 2023 — DECIDED AUGUST 8, 2023
____________________
Before HAMILTON, SCUDDER, and PRYOR, Circuit Judges.
HAMILTON, Circuit Judge. Indiana charged petitioner-ap-
pellant Crowell with more than a dozen felonies related to the
sexual abuse of his daughter. Crowell pled guilty to three
charges under a binding plea agreement. He now appeals
from the denial of his petition for federal habeas corpus relief
under 28 U.S.C. § 2254. He claims he was deprived of his Sixth
Amendment right to effective assistance of counsel. He asserts
that his trial counsel failed to advise him that six of the
2 No. 21-2416
charges against him, including one to which he pled guilty,
were barred by the statute of limitations. The Indiana Court
of Appeals rejected Crowell’s claim because he had not shown
that if he had been properly advised, he would have rejected
the plea bargain and insisted on going to trial on all the timely
charges. We agree with the district court that the state court’s
decision was not an unreasonable application of Supreme
Court precedent, so we affirm denial of relief.
I. Factual and Procedural History
In 2015, Indiana charged Crowell with thirteen felony
counts, including four counts of Class A felony child molest-
ing, four counts of Class B felony sexual misconduct with a
minor, two counts of Level 5 felony incest, one count of Class
C felony incest, one count of Class C felony child molesting,
and one count of Class C felony sexual misconduct with a mi-
nor. Unbeknownst to Crowell, however, the statute of limita-
tions had run on six of the counts: the four counts of Class B
felony sexual misconduct with a minor, the one count of Class
C felony sexual misconduct with a minor, and the one count
of Class C felony child molesting. Crowell’s appointed attor-
ney failed to inform him or the prosecution that Crowell had
a statute-of-limitations defense to those counts. 1
1 The charged conduct for the time-barred counts was alleged to have
occurred no later than 2007. The State’s charges may have relied on the
state statute of limitations in effect when Crowell was charged in 2015, as
opposed to the statute of limitations in effect in 2007, which required that
charges be brought within five years. Because several of the charges
against Crowell were already time-barred when the state legislature ex-
tended the statute of limitations in 2013, the 2013 enactment could not,
consistent with the Ex Post Facto Clause of the Constitution, restore the
No. 21-2416 3
The State offered a plea deal, which led to friction between
Crowell and his attorney. One week before the scheduled
trial, Crowell moved to fire his court-appointed lawyer,
whom he accused of lying to him about his family’s coopera-
tion with the prosecution. Crowell believed his attorney had
lied “to sway me to take a plea.” The court refused Crowell’s
request but reminded him that whether to plead or go to trial
was his choice. Crowell replied that he was “not pleading.”
Four days later, however, Crowell signed a plea agree-
ment. He agreed to plead guilty to one count of Class A felony
child molesting, one count of Class B felony sexual miscon-
duct with a minor, and one count of Class C felony incest,
with all other counts dismissed. Neither Crowell’s attorney
nor anyone else advised Crowell that the Class B felony to
which he was pleading guilty would have been barred by the
statute of limitations if he had raised the defense.
The plea agreement provided that, if the court accepted it,
Crowell would be sentenced to 30 years for the Class A felony,
with 24 years executed and six years suspended, 20 years ex-
ecuted for the Class B felony, and eight years executed for the
Class C felony. The sentences were to run concurrently, mean-
ing Crowell would be sentenced in total to 24 years executed
and six years suspended. If Crowell were to receive all good-
time credit for which he is eligible, he could be released after
12 years. See Ind. Code § 35-50-6-3. The court accepted Crow-
ell’s plea and sentenced him accordingly.
Crowell sought post-conviction relief in state court, argu-
ing that trial counsel’s failure to inform him of the available
State’s ability to prosecute the time-barred offenses. Stogner v. California,
539 U.S. 607, 609 (2003).
4 No. 21-2416
defense amounted to ineffective assistance under Strickland v.
Washington, 466 U.S. 668 (1984), in violation of his Sixth
Amendment right to counsel. The Indiana post-conviction
court denied relief, and the Indiana Court of Appeals af-
firmed.
The state appellate court did not address whether trial
counsel’s performance was constitutionally deficient but in-
stead focused on whether Crowell was prejudiced by coun-
sel’s performance. The court found that Crowell had not
shown that, if he had been informed of the statute of limita-
tions defense for several but not all charges, he would have
rejected the plea offer and insisted on going to trial. The court
emphasized that Crowell faced a potential aggregate sentence
of 220 years on charges that were certainly timely. That would
have been significantly longer than the 24-year executed sen-
tence he was offered. The court concluded that Crowell “ad-
vanced no special circumstances to support his claim” that he
would have rejected the plea agreement, given the significant
sentence he otherwise faced. The Indiana Supreme Court de-
nied further review.
Crowell then filed a federal habeas corpus petition under
28 U.S.C. § 2254. The district court denied relief, finding that
the Indiana appellate court had reasonably applied Strickland
in finding that Crowell had not established prejudice. The dis-
trict court denied a certificate of appealability. Crowell then
applied, pro se, for a certificate of appealability from this
No. 21-2416 5
court. We granted the certificate and recruited appellate coun-
sel for Crowell. 2
II. Standard of Review
We review a district court’s denial of habeas relief de novo.
Reyes v. Nurse, 38 F.4th 636, 644 (7th Cir. 2022). Because Crow-
ell is in state custody, we review his claims under 28 U.S.C.
§ 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996. Crowell seeks relief under § 2254(d)(1), so
he must show that the state court’s adjudication of his claim
“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.” 28
U.S.C. § 2254(d)(1). In applying this standard, we look past a
state supreme court’s denial of discretionary review to the
“last reasoned state-court decision” to decide the merits of the
case. Dassey v. Dittmann, 877 F.3d 297, 302 (7th Cir. 2017) (en
banc), quoting Johnson v. Williams, 568 U.S. 289, 297 n.1 (2013).
Crowell relies on the “unreasonable application” prong of
§ 2254(d)(1). A state court applies Supreme Court precedent
unreasonably when it “identifies the correct governing legal
principle … but unreasonably applies that principle to the
facts of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362,
413 (2000). To grant relief under this prong, the federal court
must find that the state court’s application of precedent was
“objectively unreasonable,” not merely “incorrect or errone-
ous.” Wiggins v. Smith, 539 U.S. 510, 520–21 (2003), quoting
Williams, 529 U.S. at 409. Put differently, the habeas petitioner
2 Attorneys Charles B. Klein and Patrick J. Bannon of the firm Winston
& Strawn LLP have ably represented petitioner Crowell and have the
thanks of the court.
6 No. 21-2416
must show that the state court’s decision “was so lacking in
justification that there was an error well understood and com-
prehended in existing law beyond any possibility for fair-
minded disagreement.” Harrington v. Richter, 562 U.S. 86, 103
(2011).
III. Analysis
The Sixth Amendment guarantees criminal defendants the
right to effective assistance of counsel. Lee v. United States, 582
U.S. 357, 363 (2017). To prevail on a claim for ineffective assis-
tance of counsel, a habeas petitioner must show (1) that coun-
sel’s performance was deficient and (2) that the deficient per-
formance prejudiced the defense. Strickland, 466 U.S. at 687.
To establish deficient performance, the petitioner must show
that counsel’s performance “fell below an objective standard
of reasonableness.” Id. at 688. To establish prejudice, the peti-
tioner must show a “reasonable probability that, but for coun-
sel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. A court may address these
prongs in either order and need not address both if the de-
fendant makes an insufficient showing on one. Id. at 697.
The right to effective assistance of counsel extends to the
plea-bargaining process. Lafler v. Cooper, 566 U.S. 156, 162
(2012). To establish prejudice in this context, the habeas peti-
tioner must show that “the outcome of the plea process would
have been different with competent advice.” Id. at 163. When
a petitioner claims that counsel’s ineffective assistance caused
him to accept a plea, he must show that, “but for counsel’s
errors, he would not have pleaded guilty and would have in-
sisted on going to trial.” Hill v. Lockhart, 474 U.S. 52, 59 (1985).
No. 21-2416 7
A habeas petitioner need not show he would have been
acquitted or received a lighter sentence if he had gone to trial.
Lee, 582 U.S. at 367. An accused defendant without a viable
defense “will rarely be able to show prejudice from accepting
a guilty plea that offers him a better resolution than would be
likely after trial.” Id. This is because defendants “obviously
weigh their prospects at trial in deciding whether to accept a
plea.” Id. But even when a defendant’s odds at trial are long,
he may establish prejudice by showing a “reasonable proba-
bility” that he still would have insisted on going to trial, such
as when pleading guilty would have exposed the defendant
to undesirable collateral consequences. Id. at 369 (guilty plea
resulted in mandatory deportation, which was “the determi-
native issue” for defendant). Courts, however, “should not
upset a plea solely because of post hoc assertions from a de-
fendant about how he would have pleaded but for his attor-
ney’s deficiencies.” Id. Instead, courts should look to “contem-
poraneous evidence to substantiate a defendant’s expressed
preferences.” Id.
These general standards are clearly established by deci-
sions of the Supreme Court of the United States. The Indiana
Court of Appeals decision denying Crowell’s ineffective assis-
tance claim on this factual record was not an unreasonable ap-
plication of these standards. The state court reasonably found
that Crowell had not demonstrated that he would have re-
jected the State’s plea offer and insisted on going to trial if he
had been advised that some of the charges were time-barred.
Citing findings of the post-conviction court, the appellate
court noted that Crowell still would have faced a maximum
aggregate sentence of 220 years on the timely counts. Consec-
utive advisory sentences on these counts would have resulted
in a sentence of 130 years. Even consecutive minimum
8 No. 21-2416
sentences would have yielded a sentence of 86 years. Assum-
ing Crowell earned all good-time credit for which he would
be eligible, he faced 43 to 110 actual years in prison if con-
victed on all timely counts, compared to 12 actual years in
prison pursuant to the plea agreement. We do not know from
the record before us what a realistic sentence for Crowell
would have been if he had been convicted on all timely
counts. The state appellate court noted, however, again citing
the findings of the post-conviction court, that given the “great
length and severity of Mr. Crowell’s course of abusive con-
duct … it cannot be imagined” that he would have received
concurrent sentences. We cannot say that was an unreasona-
ble view. The state appellate court therefore affirmed denial
of relief, concluding that Crowell “advanced no special cir-
cumstances” to support his claim that he would have pro-
ceeded to trial where he was facing a total sentence much
longer than under the binding plea agreement.
As evidence that he would have gone to trial if properly
advised, Crowell points first to the pretrial hearing, in which
he asserted that he would not plead guilty. That assertion
does not deserve much weight. Just four days after that hear-
ing, Crowell pled guilty under the agreement. Crowell also
cites his federal habeas petition and his appellate brief in the
state post-conviction proceedings. In both, he insisted that he
would not have pled guilty to a time-barred count if he had
known of the bar. These statements were not before the state
trial court hearing his petition for post-conviction relief, how-
ever, and they are precisely the type of post hoc assertions on
which courts may not, and certainly need not, solely rely. See
Lee, 582 U.S. at 369. The state court reasonably concluded that
contemporaneous evidence did not support a finding that if
No. 21-2416 9
Crowell had been properly advised, he would have rejected
the plea agreement.
Crowell also faults the state appellate court for analyzing
his decision to plead guilty by reference to the sentence he
would have faced if convicted on all timely counts and sen-
tenced consecutively. In Crowell’s view, the court should
have considered the possibility that, if he had gone to trial, he
would have received concurrent sentences, as well as the pos-
sibility that he would not have been convicted on all seven
timely charges. He offers no evidence, however, that these
outcomes would have been any more likely than the sen-
tences considered by the Indiana appellate court. He notes
that Indiana appellate courts occasionally reduce sentences in
some child sex abuse cases. That possibility does not rebut the
finding of the post-conviction trial court, cited by the appel-
late court, that Crowell was unlikely to have received concur-
rent sentences given the “great length and severity of [his]
course of abusive conduct.” More important, Crowell identi-
fies no Supreme Court precedent establishing that the state
appellate court committed a legal error “beyond any possibil-
ity for fair-minded disagreement” when it gauged Crowell’s
likely decision by assuming he would have faced conviction
and consecutive sentences on all timely counts. See Richter,
562 U.S. at 103.
For these reasons, the judgment of the district court deny-
ing Crowell’s petition for a writ of habeas corpus under 28
U.S.C. § 2254 is
AFFIRMED.