PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 21-1886
________________
CLAUDE P. LACOMBE,
Appellant
v.
WARDEN JAMES T. VAUGHN CORRECTIONAL
CENTER; ATTORNEY GENERAL DELAWARE
________________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-17-cv-01518)
District Judge: Honorable Leonard P. Stark
________________
Argued on September 27, 2023
Before: KRAUSE, ROTH, and AMBRO, Circuit Judges
(Opinion filed: March 8, 2024)
Richard Coughlin [ARGUED]
Law Office of Caroline Goldner Cinquanto
3331 Street Road
2 Greenwood Square, Suite 450
Bensalem, PA 19020
Counsel for Appellant
Carolyn S. Hake [ARGUED]
Office of Attorney General of Delaware
Delaware Department of Justice
820 N French Street
Carvel Office Building
Wilmington, DE 19801
Counsel for Appellees
________________
OPINION
________________
KRAUSE, Circuit Judge.
The government, like all of us, must keep its word. This
is especially true in the context of plea bargaining, where the
government’s word leads criminal defendants to surrender a
host of constitutional rights. Yet in two different cases today1
we confront situations where the government fell short.
This opinion concerns Claude Lacombe, who
surrendered his rights in exchange for a promise that the
government—here the State of Delaware—would recommend
a sentence just one year above the mandatory minimum. The
State did recommend the promised sentence. But before doing
so, it called Lacombe a “gangsta,” a “puppet master,” and the
one who “may as well have” pulled the trigger in a botched
robbery that left two dead. App. A at 96. Lacombe, who had
bargained for a 22-year sentence recommendation, was
ultimately sentenced to life in prison.
Lacombe now appeals the District Court’s denial of
habeas relief, arguing that the Delaware Supreme Court erred
in rejecting his claims that (1) the State breached its plea
agreement in violation of Santobello v. New York, 404 U.S. 257
(1971), and (2) his counsel was ineffective for failing to
demand specific performance of the plea agreement, see
1
Filed contemporaneously with this opinion is United States v.
Cruz, No. 23-1192 (3d Cir. Mar. 8, 2024), which addresses
plea breach in the context of a direct appeal.
2
Strickland v. Washington, 466 U.S. 668 (1984). To succeed on
those arguments, Lacombe must show that the Delaware
Supreme Court unreasonably applied Santobello and
Strickland under the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), and that he
suffered “actual prejudice” as a result of the State’s rhetoric
and his counsel’s failure to object, Brecht v. Abrahamson, 507
U.S. 619, 637 (1993) (quoting United States v. Lane, 474 U.S.
438, 449 (1986)).
As for the AEDPA inquiry, it may be that the State
violated the spirit of its agreement by paying mere lip service
to the stipulated sentence (and that the Delaware Supreme
Court was unreasonable in concluding otherwise). But we
need not resolve that issue because, in any event, Lacombe has
not established prejudice. Finding any constitutional error
harmless under Brecht, Strickland, and Puckett v. United
States, 556 U.S. 129 (2009), we will affirm the order of the
District Court.
I. Background
A. Lacombe’s Sentencing
On December 26, 2011, Michael Thomas and Keifer
Wright drove from Philadelphia to Delaware expecting to sell
a quarter pound of marijuana to Lacombe’s brother, Paul. But
Paul never intended to buy the marijuana. Instead, he and
Lacombe had hatched a plan to rob the men and take their drugs
at gunpoint. That plan now in motion, Lacombe’s girlfriend
Christie drove Lacombe, Paul, and Lacombe’s friend Elijah to
the Harbor Club Apartments in Newark, Delaware. With
Lacombe and Christie parked elsewhere, Paul and Elijah met
Michael and Keifer at their car and got inside.
Things quickly went south. At some point during the
attempted robbery, Paul panicked and shot Keifer in the back
of the head with Lacombe’s revolver. In the ensuing struggle,
Paul also shot Michael several times. Michael was pronounced
dead at the scene, and Keifer died a few days later. Lacombe,
Paul, Elijah, and Christie fled in Christie’s car.
3
The police apprehended Lacombe and Paul, and a New
Castle County grand jury returned a 13-count indictment
against the two men.2 The indictment charged each with two
counts of first-degree murder, two counts of attempted first-
degree robbery, four counts of possession of a firearm during
the commission of a felony, and one count of second-degree
conspiracy. Paul faced four additional charges for first-degree
murder and firearm possession, but in exchange for his
agreement to plead guilty but mentally ill to first-degree
murder, the State agreed to recommend a life sentence rather
than the death penalty. Lacombe pleaded down to one count
of second-degree murder, one count of attempted first-degree
robbery, one count of possession of a firearm during the
commission of a felony, and one count of second-degree
conspiracy.
The charges to which Lacombe pleaded guilty carried a
mandatory minimum sentence of 21 years and a maximum
sentence of life plus 52 years. In exchange for that plea, the
State agreed to recommend a sentence of 22 years—again, just
one year above the mandatory minimum—followed by
Level IV and Level III probation.3 The Delaware Superior
Court accepted Lacombe’s plea as knowing and voluntary, and
it ordered a presentence investigation to determine the relative
culpability of the individuals involved in the shooting.
On September 17, 2013, the Superior Court held a joint
sentencing for Lacombe and his brother. After “moving and
powerful statements of loss and trauma” from the victims’
families, Opening Br. 7, the prosecutor recounted the facts of
the case. When the prosecutor finished her overview, the
sentencing judge asked for clarification on “how [Lacombe
2
Elijah, who was sentenced the day after Lacombe and his
brother, was charged with the same crimes as Lacombe.
Christie was charged separately and apparently sentenced
alongside Elijah.
3
Lacombe affirmed in his plea agreement that nobody
“promised [him] what [his] sentence [would] be,” App. A at
69, and during his plea colloquy he recognized that the State’s
22-year recommendation was not binding on the sentencing
court. He also recognized that the sentencing court could
lawfully impose the maximum sentence of life plus 52 years.
4
and the victims] hooked up and how they knew each other.”
App. A at 95. The prosecutor answered the question, but she
did not stop there; she proceeded to state that Lacombe “was
determined to live this lifestyle of this sort of gangsta rapper,”
and that his rap lyrics “about robbing, shooting, killing, [and]
disrespecting women” reflected “a lifestyle that [he]
embraced . . . [and] chose to act on . . . when this was all set
into play.” Id. at 96. By way of explanation for these
statements, the prosecutor offered the following:
[W]hen you look at what [Lacombe] physically
did, he sat in the car while Paul and Elijah
actually went when the robbery and the murder
of both Michael and Keifer occurred. But
[Lacombe] set all of this in motion. [Lacombe]
is the one who put it all into play. [Lacombe] is
the one who selected who would be present.
[Lacombe] is the one who determined the
location. [Lacombe] is the one who determined
the time. [Lacombe] is the one who controlled
all of this.
Id. The prosecutor then continued, describing Lacombe as “the
older brother, the mastermind, [and] the puppet master” and
concluding: “So don’t be fooled when you consider what
sentence to give [Lacombe] by the fact that he stayed in the car
when this robbery and double homicide occurred. He didn’t
pull the trigger, but he may as well have, because he set the
whole thing in play.” Id.
Following this commentary, the prosecutor
recommended the agreed-upon sentences of life in prison for
Paul and “22 years Level V time followed by a lengthy period
of probation” for Lacombe. Id.
Lacombe’s attorneys did not object to the State’s
monologue. When given the chance to respond, they simply
noted that “all the issues the State raised . . . about [Lacombe’s]
involvement and being the mastermind behind this [were]
incorporated in the plea.” Id. at 99. Given Lacombe’s “fairly
troubled childhood,” the attorneys argued, 22 years was “a
reasonable sentence recommendation.” Id.
5
The sentencing judge disagreed. After emphasizing that
“[t]he circumstances are horrible” and “there are no good
results from this kind of thing,” id. at 100, she sentenced Paul
to life in prison for first-degree murder and to additional time
for second-degree conspiracy. She then turned to Lacombe,
noting that while she “wouldn’t call [him] the mastermind,” he
was, based on the record, a “significant factor in the planning
and determination of the events that transpired that led to the
circumstances as they ended.” Id. Because the judge saw
Lacombe’s role, “candidly, as being fairly equal in different
respects to that of [his] brother,” she sentenced Lacombe to the
maximum of life for second-degree murder. Id. at 101. She
also sentenced him to five years for possession of a firearm
during the commission of a felony, five years for attempted
first-degree robbery, and two years (suspended) for second-
degree conspiracy.4
B. State Proceedings
In October 2013, shortly after the sentencing hearing,
Lacombe filed a motion for modification of sentence. See Del.
Super. Ct. R. Crim. P. 35(b). In that motion, he argued that
(1) the State breached its plea agreement by raising his
culpability “from that of a co-conspirator[] to ‘mastermind’ of
[the] whole robbery,” and (2) counsel was ineffective for
failing to warn him about the possibility of a life sentence.
App. A at 180. The Superior Court denied the motion, writing
that “the sentence is appropriate for all the reasons stated at the
time of sentencing” and that “this [was] not the proper [forum
in which] to challenge compliance . . . with the plea agreement
or conduct [of] defense counsel.” App. B at 9 (capitalization
altered).
Undeterred, Lacombe filed a second motion for
modification of sentence with similar claims two months later.
Although the State opposed the motion, it wrote that it was “not
opposed to reconsideration of [Lacombe’s] sentence on the
Murder Second Degree charge in this case,” noting that
Lacombe’s proposal of 15 to 30 years was “not an
4
The mandatory minimum sentences for these crimes were
three, three, and zero years, respectively. The maximum
sentences were 25, 25, and two years, respectively.
6
unreasonable [resentencing] request.” App. A at 188. But the
sentencing judge remained unmoved. In a letter opinion, she
stated that she was “not swayed in the decision to impose
sentence on this matter by the State’s comments, but [instead]
by the facts and the Defendant’s conduct.” Letter Opinion at
1, State v. LaCombe, No. 1201018188 (Del. Super. Ct.
Aug. 20, 2014).5 After recounting that conduct, the sentencing
judge concluded that because Lacombe’s actions “in the
planning and implementation of his design, and in providing
the weapon used, reflected a comparable culpability” to Paul,
who was sentenced to life, a “comparable sentence” was
warranted for Lacombe himself. Id. at 1–2.
The Delaware Supreme Court affirmed Lacombe’s
sentence on direct appeal, rejecting Lacombe’s “sole
argument” that his life sentence violated the Eighth
Amendment “because he received the same sentence as his
brother, who was the shooter” and concluding that there was
“nothing extreme, or grossly disproportionate, about
sentencing a murderer to life in prison.” Lacombe v. State,
No. 560, 2014 WL 2522273, at *1–2 (Del. May 30, 2014).
In his motion for postconviction relief under Del. Super.
Ct. R. Crim. P. 61, Lacombe argued that trial counsel was
ineffective for failing to object to the State’s plea breach and
demand specific performance of the plea agreement.6 The
5
While certain prior opinions have referred to Lacombe as
“LaCombe,” we use “Lacombe” throughout this opinion for
consistency with the parties’ filings.
6
Although Lacombe had not raised this argument on direct
appeal, the Superior Court considered it on the merits. Rule 61
bars relief on “[a]ny ground . . . that was not asserted in the
proceedings leading to the judgment of conviction,” but it
exempts from that bar “colorable claim[s] that there was a
miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or
fairness of the proceedings.” Del. Super. Ct. R. Crim.
P. 61(i)(3), (5). As the Superior Court wrote, “[a] claim of
ineffective counsel in violation of the Sixth Amendment to the
United States Constitution, by its very nature, qualifies” as
such a colorable claim. State v. LaCombe, 2016 WL 6301233,
at *5 (Del. Super. Ct. Oct. 25, 2016).
7
Superior Court ultimately denied relief. See State v. LaCombe,
2016 WL 6301233, at *8 (Del. Super. Ct. Oct. 25, 2016).
Counsel was not ineffective, the Court held, because there was
no breach to which to object—the State “recommended the
agreed upon sentence of twenty-two years,” and it therefore
“performed exactly as the terms of the plea agreement stated.”
Id. at *7. Even if counsel’s performance was deficient, the
Court continued, there was “no prejudice from [the] failure to
argue for . . . specific enforcement” because “[t]he State’s
recommendation [did] not bind the Superior Court.” Id. at *8;
see Strickland, 466 U.S. at 687 (holding that ineffective
assistance of counsel requires two showings: one, that
“counsel’s performance was deficient,” and two, that “the
deficient performance prejudiced the defense”). The Delaware
Supreme Court adopted the Superior Court’s logic and
affirmed. Lacombe v. State, No. 542, 2017 WL 2180545, at
*5–7 (Del. May 17, 2017).7
C. Federal Proceedings
Lacombe filed a petition for a writ of habeas corpus in
the District of Delaware on October 26, 2017. See 28 U.S.C.
§ 2254(a). As relevant here, Lacombe’s amended petition
asserted that (1) “the State . . . breach[ed] the plea
agreement . . . [by] improperly bolstering its theory to increase
[Lacombe’s] sentence,” and (2) “trial counsel was ineffective
for failing to require specific performance from the State when
7
Lacombe’s subsequent efforts to obtain postconviction relief
in the Delaware state courts proved unsuccessful. See State v.
Lacombe, 2017 WL 6550430, at *2–4 (Del. Super. Ct. Dec. 21,
2017) (second motion for postconviction relief), aff’d, No. 22,
2018 WL 1678765 (Del. Apr. 5, 2018); Lacombe v. State,
No. 204, 2022 WL 4114103, at *1 (Del. Sept. 8, 2022) (third
motion for postconviction relief).
8
the State breached its plea agreement.”8 LaCombe v. May,
No. 17-cv-01518, 2021 WL 1342223, at *1, *3 (D. Del.
Apr. 9, 2021).
The District Court rejected both arguments.
Concerning the first, the Court wrote that “the Delaware state
courts reasonably determined . . . [the State’s remarks] did not
constitute a breach of the plea agreement.” Id. at *6; see 28
U.S.C. § 2254(d)(1). “[T]he State’s responsibility during the
sentencing hearing was to recommend capping the sentence at
22 years . . . , which it did,” and nothing in the agreement
prohibited the State from explaining Lacombe’s and Paul’s
relative roles, nor did the agreement prevent the State from
arguing “that a long probation was needed” for Lacombe.
LaCombe, 2021 WL 1342223, at *7 (quotation marks omitted).
Taken in context, the District Court concluded, the State’s
rhetoric was not inflammatory, and the Delaware Supreme
Court correctly—or at least reasonably—found no plea breach.
See id. at *6–7.
Concerning Lacombe’s second argument, the District
Court concluded that because “the Delaware Supreme Court
reasonably . . . applied clearly established federal law in
holding that the State did not breach the plea agreement . . . ,
there was nothing more for trial counsel to seek in terms of
specific performance” and counsel’s conduct “did not fall
below an objective standard of reasonableness.” Id. at *10. It
also held that, because the Superior Court “was not obligated
to follow the State’s sentencing recommendation and had
discretion to sentence [Lacombe] to life in prison,” the
Delaware Supreme Court “reasonably applied Strickland in
holding that [Lacombe] was not prejudiced by trial counsel’s
failure to seek specific performance of the plea agreement.” Id.
8
In total, the amended petition asserted 14 grounds for relief.
LaCombe v. May, No. 17-cv-01518, 2021 WL 1342223, at *3
(D. Del. Apr. 9, 2021). The District Court dismissed eight
claims—those raised in Lacombe’s second motion for
postconviction relief—as procedurally defaulted, id. at *11–
13; see Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), and
it denied relief on the remaining six, LaCombe, 2021 WL
1342223, at *4–11.
9
Having denied relief on the above claims, the District
Court declined to issue a certificate of appealability and
dismissed Lacombe’s habeas petition without holding an
evidentiary hearing. Id. at *13; see 28 U.S.C. § 2253(c); 3d
Cir. L.A.R. 22.2 (2011). Our Court, however, granted
Lacombe’s petition for a certificate of appealability with
respect to the plea-breach and ineffective-assistance claims, to
which we now turn.
II. Discussion9
Because the District Court ruled on Lacombe’s habeas
petition without an evidentiary hearing, “we review the state
courts’ determinations under the same standard that the District
Court was required to apply.” Thomas v. Horn, 570 F.3d 105,
113 (3d Cir. 2009). That standard consists of two inquiries: In
weighing whether to grant habeas relief, we must “apply[] both
the test [the Supreme] Court outlined in Brecht and the one
Congress prescribed in AEDPA.” Brown v. Davenport, 142 S.
Ct. 1510, 1517 (2022).
Under AEDPA, we may not grant habeas relief “with
respect to any claim that was adjudicated on the merits in State
court proceedings” unless the adjudication of the 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.”10 28
U.S.C. § 2254(d)(1). A decision is “contrary to” clearly
established law when it “applies a rule that contradicts the
governing law set forth in [the Supreme Court’s] cases” or
“confronts a set of facts that are materially indistinguishable
from a decision of [the Supreme] Court and nevertheless
arrives at a [different] result.” Williams v. Taylor, 529 U.S.
9
The District Court had jurisdiction under 28 U.S.C. §§ 2241
and 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and
2253.
10
Although we may also grant habeas relief when the
adjudication “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), the parties do not dispute the reasonableness of
the Delaware courts’ factual findings.
10
362, 405–06 (2000). Similarly, a decision involves “an
unreasonable application of” clearly established law when it
“correctly identifies the governing legal rule but applies it
unreasonably to the facts of a particular . . . case.” Id. at 407–
08. The application must be “objectively unreasonable,”
meaning that “a federal habeas court may not issue the writ
simply because that court concludes in its independent
judgment that the relevant state-court decision applied clearly
established federal law erroneously or incorrectly.” Id. at 409,
411; see also, e.g., Harrington v. Richter, 562 U.S. 86, 102
(2011) (“[E]ven a strong case for relief does not mean the state
court’s contrary conclusion was unreasonable.”).
Under Brecht, which adds a harmless-error element to
our habeas analysis, we must ask two questions for each claim
at issue. First, does the claim concern a trial error—meaning
an error that “occur[s] during the presentation of the case” to
the trier of fact and can “be quantitatively assessed in the
context of other evidence presented in order to determine”
harmlessness—or a structural defect, which is not susceptible
to harmless-error analysis and likely entitles the petitioner to
relief? Brecht, 507 U.S. at 629–30 (alteration in original)
(quoting Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991)).
Second, if the claim concerns a trial error, did that error result
in “actual prejudice” to the petitioner? Id. at 637 (quoting
Lane, 474 U.S. at 449); see Fry v. Pliler, 551 U.S. 112, 121–
22 (2007).
To satisfy his burden of proving “actual prejudice,” a
petitioner must show that the error “had [a] substantial and
injurious effect or influence in determining” the relevant
outcome. Brecht, 507 U.S. at 637 (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). Absent that showing, we
will not remedy a claim of trial error on collateral review. See
id. at 637–38. If the petitioner can make the requisite showing,
however, Brecht presents no barrier to relief. Id.; see Brown,
142 S. Ct. at 1517, 1520.
The upshot is that, to prevail on a habeas petition, a
prisoner asserting trial error must establish both error under
AEDPA and prejudice under Brecht. Brown, 142 S. Ct. at
1517, 1520; see Freeman v. Superintendent Fayette SCI, 62
F.4th 789, 802 (3d Cir. 2023); Mathias v. Superintendent
11
Frackville SCI, 876 F.3d 462, 475 (3d Cir. 2017). Failing to
establish either one will preclude habeas relief, so “[w]hen a
federal court determines . . . that a petitioner has failed to carry
his burden under Brecht, that conclusion . . . obviates the need
for . . . a separate AEDPA inquiry [and] relief must be denied.”
Brown, 142 S. Ct. at 1528 (emphasis omitted).
Such is the case for Lacombe’s plea-breach claim. That
claim concerns a trial error, not a structural error, and Lacombe
has not carried his burden to show “actual prejudice” under
Brecht.11 Similarly, Lacombe has not carried his burden to
show prejudice, let alone “actual prejudice,” on his Strickland
claim.
A. Lacombe’s Santobello Claim
In Santobello, the Supreme Court held that “when a plea
rests in any significant degree on a promise or agreement of [a]
prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.” 404 U.S. at
11
Based on this conclusion, we can affirm Lacombe’s
Santobello claim on harmlessness alone. That we do not reach
the AEDPA inquiry for this claim, however, does not mean the
Delaware Supreme Court’s merits determination was
necessarily reasonable. The State asserts on appeal that it
properly emphasized Lacombe’s role to ensure “a long
probation.” Answering Br. 38. But recall that the State offered
its strong language in support of a sentence just one year above
the statutory minimum. Given the facts here, we question
whether fair-minded jurists could conclude that the State’s
actions comported with the “spirit of [the] agreement.”
Dunn v. Colleran, 247 F.3d 450, 461 (3d Cir. 2001). True, the
government “need not endorse the terms of its plea agreements
enthusiastically.” United States v. Badaracco, 954 F.2d 928,
941 (3d Cir. 1992) (quotation marks omitted). And AEDPA’s
standard is no doubt difficult to meet. See, e.g., Harrington,
562 U.S. at 102–03; Renico v. Lett, 559 U.S. 766, 773 (2010).
But the government also may not introduce its agreed-upon
terms with a wink and a nod. See Cruz, slip op. at 7–8; see
also, e.g., United States v. Canada, 960 F.2d 263, 269–71 (1st
Cir. 1992); United States v. Taylor, 77 F.3d 368, 369–71 (11th
Cir. 1996).
12
262. Lacombe argues here, as he did before the District Court,
that (1) the State failed to fulfill its promise by implicitly
advocating for a sentence longer than 22 years, and (2) the
Delaware Supreme Court unreasonably applied Santobello
when it reached the opposite conclusion. He also contends that
the Delaware Supreme Court erred in considering prejudice
because we have treated Santobello errors “as akin to structural
defects not susceptible [to] harmless error analysis.” Reply Br.
6 (quoting Dunn v. Colleran, 247 F.3d 450, 463 (3d Cir.
2001)). Lacombe makes the third argument under AEDPA,12
but it is equally relevant for purposes of Brecht. Assuming we
begin our analysis with Brecht and harmless error—as we elect
to do here—a conclusion that Santobello violations are
structural defects would foreclose our consideration of
prejudice.
Whether Santobello violations are trial errors or
structural defects was, until today, an open question in our
Circuit. In Dunn, a plea-breach case decided on AEDPA
grounds, the majority observed that “[t]he Supreme Court and
this Court have, on direct appeal, regularly treated Santobello
errors as akin to structural defects” and that “[n]othing in recent
Supreme Court caselaw” suggested a different conclusion on
habeas review. 247 F.3d at 451, 463. The dissent, meanwhile,
pointed out that the Supreme Court has never identified plea
breach as within the “limited class” of structural defects and
that “there is a strong presumption against finding . . . a given
type of violation [to be] structural.” Id. at 470 (Cowen, J.,
dissenting) (quotation marks omitted); see Neder v. United
States, 527 U.S. 1, 8 (1999); Johnson v. United States, 520 U.S.
461, 468–69 (1997). Ultimately, however, we had no reason
12
In Lacombe’s view, the Delaware Supreme Court
“contradict[ed] the governing law” set forth in Santobello
when it framed its analysis “in the context of the need to prove
prejudice occasioned by the breach.” Williams, 529 U.S. at
405; Opening Br. 28. Even if Santobello prohibited harmless-
error analysis, this argument would lack merit: The Delaware
Supreme Court stated that it considered prejudice only under
Strickland, see Lacombe, 2017 WL 2180545, at *6, and a
contrary reading would be out of step with “the respect
AEDPA requires us to afford our state counterparts,”
Eizember v. Trammell, 803 F.3d 1129, 1143 (10th Cir. 2015).
13
to resolve the issue, because “even if harmless error would
apply to a Santobello violation,” the error in Dunn was not
harmless. 247 F.3d at 463.
Today, we confront the issue again with the benefit of
“recent Supreme Court caselaw.” Id. Eight years after Dunn,
the Supreme Court decided Puckett v. United States, 556 U.S.
129. In that case, the government conceded on direct review
that it had violated the terms of the plea agreement. Id. at 133.
Because defense counsel failed to object to the plea breach at
sentencing, however, the government argued that (1) plain-
error review was appropriate for the unpreserved claim, and
(2) Puckett could not show prejudice as required under the
plain-error standard. Id.; see Fed. R. Crim. P. 52(b); United
States v. Olano, 507 U.S. 725, 734–35 (1993). Puckett
countered that even if plain-error review was appropriate,
consideration of prejudice was not, because Santobello deemed
plea-breach claims to be structural defects. See Puckett, 556
U.S. at 140. The Supreme Court disagreed, explaining:
[B]reach of a plea deal is not a “structural” error
as we have used that term. We have never
described it as such, and it shares no common
features with errors we have held structural. A
plea breach does not necessarily render a
criminal trial fundamentally unfair or an
unreliable vehicle for determining guilt or
innocence; it does not defy analysis by harmless-
error standards by affecting the entire
adjudicatory framework; and the difficulty of
assessing the effect of the error is no greater with
respect to plea breaches at sentencing than with
respect to other procedural errors at sentencing,
which are routinely subject to harmlessness
review.
Id. at 141 (citations and quotation marks omitted). The Court
also clarified that, while “Santobello did hold . . . automatic
reversal is warranted when objection to the Government’s
breach of a plea agreement has been preserved,” that holding
14
rested on policy concerns.13 Id. Those policy concerns and
“the rule of contemporaneous objection,” the Court said, are
“equally essential and desirable, and when the two collide
[there is] no need to relieve the defendant of his usual burden
of showing prejudice.” Id.
Puckett, then, stands for two propositions. First, plea
breach is not a structural defect that defies analysis by
harmless-error standards. Second, at least where there is no
contemporaneous objection, Santobello’s automatic-reversal
rule does not apply, and prejudice is relevant to a plea-breach
claim.
Although Puckett dealt with plain-error review, its
reasoning applies with equal force on habeas review. Just as a
defendant “must make a specific showing of prejudice” to
prevail in the plain-error context, Olano, 507 U.S. at 735, a
habeas petitioner is “not entitled to habeas relief based on trial
error unless [he] can establish that [the error] resulted in ‘actual
prejudice,’” Brecht, 507 U.S. at 637 (quoting Lane, 474 U.S.
at 449). And we see no reason why the contemporaneous-
objection rule—which is enough to overcome Santobello’s
automatic-reversal rule in the context of plain error—should
13
As the Dunn majority emphasized, the Santobello Court
remanded the case despite evidence of harmlessness. Dunn,
247 F.3d at 463; see Santobello, 404 U.S. at 262–63. The
Puckett Court explained, however, that it did so not because
“plea-breach errors are (like structural errors) somehow not
susceptible, or not amenable, to review for harmlessness,” but
instead based on “a policy interest in establishing the trust
between defendants and prosecutors that is necessary to sustain
plea bargaining—an essential and highly desirable part of the
criminal process.” 556 U.S. at 141 (emphasis omitted)
(quotation marks omitted).
15
have any less force in the habeas context.14 On collateral
review too, then, a “defendant whose plea agreement has been
broken by the Government will not always be able to show
prejudice, either because he obtained the benefits contemplated
by the deal anyway . . . or because he likely would not have
obtained those benefits in any event.” Puckett, 556 U.S. at
141–42. Because Santobello violations are not structural
defects, and because Puckett’s logic extends to habeas, we hold
that without a contemporaneous objection, an alleged
Santobello violation is a trial error susceptible to harmless-
error review under Brecht.
We qualify our holding with an important caveat.
Puckett concluded that Santobello violations are amenable to
harmless-error analysis when there is no contemporaneous
objection, because in that scenario there is a “colli[sion]”
between the “essential and desirable” contemporaneous-
objection rule and the “policy interest in establishing . . . trust
between defendants and prosecutors . . . necessary to sustain
plea bargaining.” 556 U.S. at 141. In the scenario where there
is a contemporaneous objection, and so that collision is
avoided, the Puckett Court explicitly declined to “confront . . .
the question [of] whether Santobello’s automatic-reversal rule
has survived [the] recent elaboration of harmless-error
principles in such cases as Fulminante and Neder.” Id. at 141
n.3. We adopt the same approach here, and we take no position
on whether harmless-error analysis is appropriate—on habeas
14
Indeed, the policy considerations weighing against
automatic reversal are even greater when (1) there is no
contemporaneous objection, and (2) the case reaches federal
court under 28 U.S.C. § 2254. In Brecht, the Supreme Court
wrote that “[o]verturning final and presumptively correct
convictions on [habeas] review . . . undermines the States’
interest in finality and infringes upon their sovereignty over
criminal matters.” 507 U.S. at 637. The same logic, we
believe, applies to “final and presumptively correct” sentences.
Id.
16
review, direct appeal, or elsewhere—for Santobello violations
where counsel lodges a timely objection.15
Here, it is undisputed that Lacombe’s attorneys did not
object to the State’s rhetoric, so Brecht’s harmless-error rule
governs.16 And because Lacombe has not established “actual
prejudice,” that rule is dispositive. Even if the State breached
the plea agreement, the sentencing judge was not bound by the
State’s recommendation, had independent access to
information about Lacombe’s and Paul’s respective roles in the
crimes, and indicated at sentencing that she was not swayed by
the State’s rhetoric. See App. A at 100–01 (“I wouldn’t call
you the mastermind, but, nonetheless, a significant factor in the
planning and determination of the events that transpired . . . . I
see your role, candidly, as being fairly equal in different
respects to that of your brother . . . .”). In addition, and
tellingly, the sentencing judge reaffirmed Lacombe’s life
sentence even after the State agreed that a reduction to 15 to 30
years was reasonable, writing that her original sentence was
based solely on “the facts and the Defendant’s conduct.”17
Letter Opinion, supra, at 1. Lacombe thus cannot show that
the State’s purported overreach had a “substantial and injurious
15
Had there been a contemporaneous objection here, the State
could of course have attempted to cure the breach. See Cruz,
slip op. at 8–10. But as Cruz confirms, “it [remains] an open
question whether we may excuse . . . errors as harmless” in that
scenario. Id. at 11.
16
Lacombe did not forfeit his plea-breach claim despite his
counsel’s failure to object, instead preserving it (via an
ineffective-assistance claim) in his Rule 61 motion. Because
the Delaware Supreme Court reviewed the claim on the merits
rather than for plain error, see Lacombe, 2017 WL 2180545, at
*1–2, we need not concern ourselves with questions of
procedural default or exhaustion, see Picard v. Connor, 404
U.S. 270, 275 (1971).
17
Although it is possible that the State’s words unconsciously
influenced the sentencing judge, and that once the State said its
piece the bell could not be unrung, the sentencing judge gave
assurances to the contrary, and ignoring those assurances
would be out of step with the principles of comity and
federalism underlying federal habeas review. See Brecht, 507
U.S. at 635.
17
effect or influence” on the Superior Court’s sentence, Brecht,
507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776); see
Puckett, 556 U.S. at 141–42, or that there is “grave doubt about
whether [the] trial error” affected the outcome, see Davis v.
Ayala, 576 U.S. 257, 267–68 (2015) (quoting O’Neal v.
McAninch, 513 U.S. 432, 436 (1995)).18 We conclude that any
error here was harmless under Brecht,19 and we will affirm the
District Court’s denial of relief on Lacombe’s Santobello claim
without reaching the AEDPA inquiry. See Brown, 142 S. Ct.
at 1528.
B. Lacombe’s Strickland Claim
Having disposed of Lacombe’s Santobello claim on
harmless-error grounds, the resolution of Lacombe’s
Strickland claim is fairly straightforward. As for this claim,
we begin (and end) with AEDPA.
To sustain an ineffective-assistance claim under
Strickland, a defendant must show that (1) counsel’s
performance was deficient, meaning that it “fell below an
objective standard of reasonableness,” and (2) the deficient
performance “prejudiced the defense,” meaning “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
466 U.S. at 687–88, 694. Lacombe argues that the Delaware
Supreme Court erred at both prongs of this analysis and
unreasonably applied Strickland because, assuming a breach,
it (1) failed to consider counsel’s deficient failure to object, and
18
See also, e.g., Calderon v. Coleman, 525 U.S. 141, 146
(1998) (per curiam) (“The social costs of retrial or resentencing
are significant . . . . The State is not to be put to this arduous
task based on mere speculation that the defendant was
prejudiced by trial error; the court must find that the defendant
was actually prejudiced by the error.”).
19
As the Supreme Court clarified in Puckett, “the question with
regard to prejudice is not whether [a defendant] would have
entered the plea had he known about the future violation.” 556
U.S. at 142 n.4. Instead, “[w]hen the rights acquired by the
defendant relate to sentencing, the outcome he must show to
have been affected is his sentence.” Id. (quotation marks
omitted).
18
(2) concluded there was no prejudice “because the sentencing
court was not bound by the State’s recommendation.”
Lacombe, 2017 WL 2180545, at *6.
Even assuming the State breached its plea agreement,
we agree with the Delaware Supreme Court that counsel’s
failure to object or demand specific performance was
harmless.20 For the same reason we lack “grave doubt” as to
whether the alleged plea breach affected the outcome (that is,
the absence of “actual prejudice”), we do not believe the
Delaware Supreme Court unreasonably applied Strickland
when it concluded Lacombe’s sentence would have been the
same regardless of counsel’s actions. Lacombe’s Strickland
claim therefore fails under AEDPA, and we will affirm the
District Court’s denial of relief on this claim as well.
III. Conclusion
Because Lacombe is not entitled to habeas relief for
either claim at issue on appeal, we will affirm the order of the
District Court.
20
We take no position on whether the State actually breached
the plea agreement for purposes of Strickland. See Strickland,
466 U.S. at 697, 700 (noting that, because “[f]ailure to make
the required showing of either deficient performance or
sufficient prejudice defeats [an] ineffectiveness claim,” a court
can “dispose of [the] claim on the ground of lack of sufficient
prejudice” alone).
19