John Joseph Merzbacher v.  Bobby P. Shearin; Douglas F. Gansler

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 JOHN JOSEPH MERZBACHER,
Petitioner-Appellee,
v. No. 10-7118 
BOBBY P. SHEARIN; DOUGLAS F.
GANSLER,
Respondents-Appellants. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, Circuit Judge, sitting by designation.
(1:07-cv-00067-AMD)
Argued: October 23, 2012
Decided: January 25, 2013
Before MOTZ, DUNCAN, and FLOYD, Circuit Judges.
Reversed by published opinion. Judge Motz wrote the opin-
ion, in which Judge Duncan and Judge Floyd joined.
COUNSEL
ARGUED: Edward John Kelley, OFFICE OF THE ATTOR-
NEY GENERAL OF MARYLAND, Baltimore, Maryland,
for Appellants. Henry Mark Stichel, GOHN, HANKEY &
STICHEL, LLP, Baltimore, Maryland, for Appellee. ON

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BRIEF: Douglas F. Gansler, Attorney General of Maryland,
Baltimore, Maryland, for Appellants.
OPINION
DIANA GRIBBON MOTZ, Circuit Judge:
A Baltimore jury convicted John Joseph Merzbacher of
child rape and related crimes. When his direct appeal failed,
Merzbacher sought state post-conviction relief alleging that
his trial lawyers denied him effective assistance of counsel in
failing to notify him of, and counsel him about, a pre-trial
plea offer. After conducting evidentiary hearings, the state
court refused to grant him post-conviction relief. Merzbacher
then petitioned for a writ of habeas corpus in federal court,
which the court granted. Given the great deference to the state
court judgment required by federal law, we must reverse.
I.
A.
In the early 1970s, Merzbacher taught at a small Catholic
school in Baltimore; eleven-year-old Elizabeth Murphy was
one of his students. Years later, Ms. Murphy told authorities
that Merzbacher had subjected her to three years of sexual,
physical, and emotional abuse. And in January 1994, the State
of Maryland charged Merzbacher with committing a number
of sexual abuse crimes—including rape, perverted practice,
and carnal knowledge of a female child under the age of four-
teen years—against Ms. Murphy.
Merzbacher retained M. Christina Gutierrez to represent
him. After the State brought charges involving an additional
fourteen children against Merzbacher, he qualified for
appointed counsel. William Kanwisher, a public defender,
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was then appointed to represent him. Gutierrez and Kan-
wisher agreed to cooperate in Merzbacher’s defense against
all charges.
In December 1994, following a pretrial motions hearing in
the Murphy case, prosecutors and defense counsel met with
the then-presiding Judge, Clifton J. Gordy, in the judge’s
chambers. Merzbacher did not attend. During that meeting,
the prosecutors discussed with Gutierrez and Kanwisher the
possibility of their client pleading guilty in the Murphy case
in exchange for a recommendation of a sentence of ten years’
incarceration and dismissal of other charges. Judge Gordy
bound himself to imposing a sentence of ten years’ incarcera-
tion should the plea be presented to him.
Merzbacher never accepted the offer and the parties never
resumed plea discussions. By the time the Murphy trial began
in May 1995, Judge Gordy, as a result of the rotating schedule
of assignments, was no longer assigned to the case. Instead,
Judge Robert I. H. Hammerman presided over Merzbacher’s
trial. The jury convicted Merzbacher on all counts. Judge
Hammerman denied Merzbacher’s motion for a new trial and
sentenced him to four life sentences and one ten-year sen-
tence, all running concurrently. On direct appeal, the Court of
Special Appeals affirmed in an unreported opinion. The Court
of Appeals granted certiorari and then affirmed. See Merzb-
acher v. State, 697 A.2d 432 (Md. 1997).
B.
In July 1998, Merzbacher petitioned for post-conviction
relief in state court arguing in part that Gutierrez and Kan-
wisher provided constitutionally ineffective counsel when
they failed to convey the ten-year plea offer to him and advise
him of his options with respect to that offer. The post-
conviction case was originally assigned to Judge William D.
Quarles, then a state trial judge. However, the State moved to
recuse Judge Quarles, because, in a prior case in which
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Gutierrez appeared before him, Judge Quarles stated on the
record that Gutierrez had lied in court. Judge Quarles granted
the motion and the case was reassigned to Judge John N. Pre-
vas (hereinafter "the state court").
Over five days between October 2000 and February 2001,
the state court held hearings on Merzbacher’s petition in
which the court considered testimony and legal argument.
Merzbacher offered the testimony of Gutierrez, Kanwisher,
and himself; the State cross-examined all three witnesses.
Gutierrez testified to her expertise as a criminal defense
lawyer who had handled approximately 1000 criminal cases
since becoming engaged in the practice of law in 1982.
Gutierrez explained that she had advised Merzbacher on a
number of trial issues—including whether he should request
a change of venue and testify at trial—and that he had always
taken her advice. Gutierrez acknowledged that Merzbacher
had never at any time, not even post-trial, admitted guilt as "to
the crimes [of] which he was accused."
As for the plea offer, Gutierrez testified that in Judge
Gordy’s chambers, in late 1994 or early 1995, the State "es-
sentially agreed" that Merzbacher could plead guilty to one or
two counts—rape and child abuse—in the Murphy case "for
ten years" and "that all of the other cases . . . fifteen or sixteen
of them would all be nol prossed." In her view, this was a firm
offer with terms "somewhere between ok and good . . . . I’d
put it not quite good but as good as it’s going to get." Follow-
ing Merzbacher’s conviction, Gutierrez recognized her duty to
communicate this offer to Merzbacher, but testified that she
had failed to do so because she was moving her office and
very busy when the offer was made, and later, while preparing
for trial in this case, she never "thought" about the offer.
Gutierrez acknowledged that, although plea offers were "on
the table in a lot of cases" that she had handled, she could not
recall "another case" in which she had failed to communicate
a plea offer to her client.
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Gutierrez’s co-counsel, Kanwisher, confirmed that Gutier-
rez was lead counsel, that Merzbacher invariably had fol-
lowed Gutierrez’s advice on all trial matters, that Merzbacher
had "always maintained his innocence," and that the State had
offered the ten-year plea. Kanwisher opined that this was "a
good deal and a fair deal" for Merzbacher and that defense
counsel "should have probably urged him to take it." But
believing that Gutierrez, who had a closer relationship with
Merzbacher, would inform Merzbacher about the offer, Kan-
wisher did not do so. Kanwisher further testified that he and
Gutierrez had disagreed as to the desirability of the plea; he
believed Gutierrez "was very confident that she could" obtain
an outright acquittal.
Merzbacher himself testified that he had followed Gutier-
rez’s advice as to venue, whether he would testify, and other
trial matters. He stated that prior to post-conviction proceed-
ings, neither she nor anyone else had communicated to him
the ten-year plea offer. Merzbacher testified that had he
known of the plea offer, he would have accepted it "most gra-
ciously." He explained that he was "scared" and "didn’t have
any money to continue to fight" through "eleven or fifteen dif-
ferent trials," that publicity was "so bad that [he] was ruined
for the rest of [his] life," and that the "media can just blow all
of these things out of proportion."
Then the State presented its witnesses—Roberta Siskind,
one of the trial prosecutors, and Judge Gordy—who were also
cross-examined. (The State noticed Gutierrez as a witness in
its case but before the State could call her, Gutierrez became
unavailable to testify due to health problems requiring hospi-
talization.)
Siskind acknowledged that there had been "a discussion"
before Judge Gordy "in which we were talking about ten
years." She explained "it wasn’t more specific than that."
Merzbacher "would plead guilty to a number of those cases"
and "we did not define which ones those would be." Siskind
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repeatedly testified that the State offered only a "guilty plea"
and that she "absolutely" would not have accepted a plea
under North Carolina v. Alford, 400 U.S. 25 (1970), with
Merzbacher not admitting guilt but admitting only that the
prosecution would present enough evidence to convict. She
recalled that Gutierrez and Kanwisher said they would take
the offer to Merzbacher. Siskind had a vague recollection that
later Gutierrez "came back and told us . . . we weren’t going
anywhere, meaning there weren’t going to be any further dis-
cussions." Siskind related that this "wasn’t really a surprise
because we didn’t really expect him to take anything."
Judge Gordy testified that there was "some discussion" of
a possible ten-year plea at a pretrial meeting in his chambers
discussing "a lot of things." Judge Gordy believed that this
was "a good deal" for Merzbacher, indeed a surprisingly gen-
erous offer, and testified that if Merzbacher had agreed to it,
he (Judge Gordy) would have accepted it. According to Judge
Gordy, although Gutierrez did not say the ten-year deal was
"ridiculous," she also did "not jump on it." Judge Gordy
explained that "throughout the Motions’ process," Gutierrez
"had reiterated . . . that her client was not guilty, did not do
these things and was insistent upon having his day in Court."
During the chambers meeting, Judge Gordy remembered that
"there was some discussion that . . . Merzbacher[ ] would not
likely plead guilty to such a heinous offense in the presence
or that would come to the attention of his wife, that he had
denied these allegations throughout and that a plea was not
likely." The Judge testified that he "got the impression that
there were problems with the Defendant pleading guilty to
anything, whether it be five years [or] ten minutes."
Finally, Judge Gordy remembered no discussion as to the
"structure" of the ten-year plea; rather "[t]he ten years was,
kind of, out there and I never heard back from anyone and the
end of the term came and the case went to trial." Similarly, he
had no memory of an Alford plea ever being discussed and no
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"recollections as to if the ten years was accepted . . . to which
case" or cases it would "apply."
C.
On March 25, 2003, the state court issued an opinion and
order denying Merzbacher’s petition for post-conviction
relief. Merzbacher appealed to the Court of Special Appeals.
On March 11, 2004, the appellate court remanded so that the
state court could expressly address "in the first instance"
"what advice — if any — trial counsel actually gave [Merzb-
acher] as to whether the plea should be accepted, and . . .
whether counsel’s advice — or lack thereof — constituted
‘ineffective assistance of counsel.’" On remand, the parties
submitted supplemental memoranda, and the state court heard
legal argument, but did not consider any additional evidence.
On June 20, 2006, the state court entered an opinion and
order again denying post-conviction relief. The new opinion,
which incorporated an amended version of the original opin-
ion, provided no new facts or analysis but, the state court
explained, "addressed, in expanded reiteration, the subject
identified" in the remand instructions. The state court
acknowledged that some "factors" cut in Merzbacher’s
"favor," i.e., the disparity between the ten-year plea offer and
the life sentences he received, the fact that he did not testify
in his own defense, and the post-conviction testimony from
him and his lawyers that no plea offer had been conveyed to
him. However, the state court found:
(1) Merzbacher engaged in wishful thinking when he
testified at the post-conviction hearing that he was
not apprised of the plea offer.
(2) Kanwisher was out of the loop on the issue and
cannot shed light on what occurred.
(3) Gutierrez committed perjury at the post-
conviction hearing when she testified that she never
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advised Merzbacher of the offer, that she was so
busy managing her office that she forgot to, and that
the subject of a guilty plea never came up in her con-
versations with Merzbacher.
The state court recognized the difficulty with drawing a
"negative inference" that Gutierrez told Merzbacher about the
offer "where the only direct evidence was to the contrary, but
not believed." Nonetheless this is what the state court did,
concluding:
Because the Court believes neither Merzbacher nor
Gutierrez with respect to this assertion [that Gutier-
rez never told Merzbacher about the plea], it draws
the inference from the totality of the circumstances
that the [plea] offer was discussed and rejected.
The state court then explained that it drew this negative
inference because it could not square a contrary conclusion
with either Merzbacher’s "vociferous[ ]" protestations of
innocence and his "logical" wish to avoid "an embarrassing
guilty plea" when he had "a good chance of successfully
maintaining his innocence," or Gutierrez’s long hours of work
on the case, procurement of favorable evidentiary rulings, and
certain facts outside the record assertedly demonstrating her
lack of credibility. The state court relied heavily on these
extra-record facts, involving Gutierrez’s prior criminal con-
victions and eventual disbarment, in finding Gutierrez not
credible.
Finally, the state court further explained that it could not
grant post-conviction relief because the ten-year offer "was
never firmed up in terms of details." Rather, the court found,
"the plea discussions finalized only one leg of a putative plea
agreement, the length of sentence; and did not finalize the
other legs." Specifically, the plea discussions "did not final-
ize" the counts to which Merzbacher would plead, whether
the State or the court would accept an Alford plea, and how
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a plea would affect the pending civil suits against Merzb-
acher.
Merzbacher filed an application for leave to appeal the state
court’s denial of post-conviction relief. In January 2007, the
Court of Special Appeals denied him leave to appeal.
Merzbacher then sought relief pursuant to 28 U.S.C. § 2254
in the United States District Court for the District of Maryland
(hereinafter "the federal court"). The federal court held sev-
eral nonevidentiary hearings and considered extensive legal
memoranda. On July 30, 2010, the court issued a comprehen-
sive opinion and order granting habeas relief.
The federal court found: (1) the record before the state
court "itself provides clear and convincing evidence rebutting
the presumptive correctness of the dispositive facts relevant to
the state court’s adverse credibility determination"; (2) the
overall fact-finding of the state court was "not simply incor-
rect, but wholly unreasonable," because the state court
"‘ma[d]e factual findings . . . under a misapprehension as to
the correct legal standard’" and "‘the fact-finding process
itself [was] defective’" (quoting Taylor v. Maddox, 366 F.3d
992, 1001 (9th Cir. 2004)); (3) the state court was more than
"unreasonable" in finding, based on no evidence other than
information outside the record going to credibility, that
Gutierrez had told Merzbacher about the plea, and was "un-
reasonable" in finding Kanwisher did not have an obligation
to tell Merzbacher about the plea; and (4) Merzbacher’s testi-
mony before the state court "unambiguously asserts that he
would have immediately accepted the State’s plea offer" and
the terms of the offer were "sufficiently specific so that he
could have accepted it."
The federal court thus granted a writ of habeas corpus and
ordered the State to "return this prosecution to the status quo
ante . . . that is to say, the State shall afford . . . Merzbacher
an opportunity to accept its prior offer of a plea agreement,
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provided, however, that the performance by the state of any
such plea agreement shall be expressly conditioned on [ ] its
acceptance of same by a judge of the Circuit Court of Balti-
more City, or as further ordered by the appellate courts of
Maryland."
The State timely noted an appeal.1
II.
The Sixth Amendment right to the assistance of counsel
during criminal proceedings extends to the plea-bargaining
process. See Missouri v. Frye, 132 S. Ct. 1399, 1405 (2012).
Thus, criminal defendants are "entitled to the effective assis-
tance of competent counsel" during that process. Lafler v.
Cooper, 132 S. Ct. 1376, 1384 (2012) (internal quotation
marks omitted). As explained in Hill v. Lockhart, 474 U.S. 52,
57 (1985), the two-part test set forth in Strickland v. Washing-
ton, 466 U.S. 668 (1984), governs ineffective assistance
claims involving the plea process. Pursuant to that test, to pre-
vail on an ineffective assistance claim, a petitioner must
establish that (1) counsel’s performance was deficient and (2)
there is a reasonable probability that the deficiency prejudiced
the defense. Strickland, 466 U.S. at 687, 694.
In all cases, to establish deficient performance, a petitioner
"must show that counsel’s representation fell below an objec-
tive standard of reasonableness." Id. at 688. Courts "‘indulge
a strong presumption that counsel’s conduct falls within the
wide range of reasonable professional assistance,’ in order to
avoid ‘the distorting effects of hindsight.’" Yarbrough v.
Johnson, 520 F.3d 329, 337 (4th Cir. 2008) (quoting Strick-
land, 466 U.S. at 689).
1After obtaining from this court a certificate of appealability, Merzb-
acher noted a cross-appeal as to the appropriateness of the remedy
ordered. Given our holding here, we have dismissed the cross-appeal as
moot.
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Generally speaking, to establish prejudice under Strickland,
the petitioner must show that "but for counsel’s unprofes-
sional errors, the result of the proceeding would have been
different." Strickland, 466 U.S. at 694. When an ineffective
assistance claim arises in the plea context, the Supreme Court
has said that the Strickland prejudice inquiry focuses on
"whether counsel’s constitutionally ineffective performance
affected the outcome of the plea process." Hill, 474 U.S. at
59.
The Antiterrorism and Effective Death Penalty Act of 1996
("AEDPA") § 104, 28 U.S.C. § 2254 (2006), provides two
"independent requirements" for federal court review of state
court factual findings in habeas petitions. Miller-El v. Cock-
rell, 537 U.S. 322, 341 (2003). Under § 2254(d)(2), a federal
court may not grant a state prisoner’s application for a writ of
habeas corpus based on a claim already adjudicated on the
merits in state court unless that 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." And, under § 2254(e)(1), "a determination of a
factual issue made by a State court shall be presumed to be
correct," unless the petitioner satisfies his "burden of rebut-
ting the presumption of correctness by clear and convincing
evidence." The two provisions, operating in tandem, require
that "[t]o secure habeas relief, petitioner must demonstrate
that a state court’s finding . . . was incorrect by clear and con-
vincing evidence, and that the corresponding factual determi-
nation was ‘objectively unreasonable’ in light of the record
before the court." Miller-El, 537 U.S. at 348.
Thus, under § 2254 "‘federal habeas courts [have] no
license to redetermine credibility of witnesses whose demea-
nor has been observed by the state trial court, but not by
them.’" Cagle v. Branker, 520 F.3d 320, 324 (4th Cir. 2008)
(quoting Marshall v. Lonberger, 459 U.S. 422, 434 (1983))
(alteration in original). Rather, "for a federal habeas court to
overturn a state court’s credibility judgments, the state court’s
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error must be stark and clear." Id. at 324. We have repeatedly
emphasized the deferential standard of review, especially of
a state court’s credibility findings. See, e.g., id.; Wilson v.
Ozmint, 352 F.3d 847, 858 (4th Cir. 2003) ("Credibility deter-
minations, such as those the state . . . court made regarding
[a witness], are factual determinations. As such, they ‘are pre-
sumed to be correct absent clear and convincing evidence to
the contrary, and a decision adjudicated on the merits and
based on a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of the
evidence presented in the state court proceeding.’") (quoting
Miller-El, 537 U.S. at 340).
As the Supreme Court has explained, although "[t]he term
‘unreasonable’ is no doubt difficult to define . . . [i]t suffices
to say . . . that a state-court factual determination is not unrea-
sonable merely because the federal habeas court would have
reached a different conclusion in the first instance." Wood v.
Allen, 558 U.S. 290, 130 S. Ct. 841, 849 (2010) (internal quo-
tation marks omitted). Rather, "even if reasonable minds
reviewing the record might disagree about the finding in ques-
tion, on habeas review that does not suffice to supersede the
trial court’s . . . determination." Id. (internal quotation marks
omitted).
Merzbacher claims that his trial counsel provided constitu-
tionally ineffective assistance when they failed to convey the
ten-year plea offer to him and failed to advise him of his
options with respect to that offer. His argument that the state
court decision "was based on an unreasonable determination
of the facts in light of the evidence presented in the State
court proceeding," § 2254(d)(2), carried the day below and he
obtained habeas relief from the federal court. We review de
novo when, as here, the "decision on a petition for a writ of
habeas corpus is based on the state court record." Gray v.
Branker, 529 F.3d 220, 228 (4th Cir. 2008).
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III.
In granting Merzbacher relief pursuant to § 2254, the fed-
eral court clearly understood the substantial constraints, out-
lined above, which AEDPA imposed on it. Moreover, like the
state court, the federal court recognized that to establish con-
stitutionally ineffective counsel, Merzbacher had to demon-
strate that (1) counsel provided him with constitutionally
deficient representation and (2) a reasonable probability
existed that the deficient representation prejudiced him.
Strickland, 466 U.S. at 687. The first Strickland prong —
deficiency in representation — dominated both the state and
the federal courts’ analyses. Accordingly, we turn first to that
prong.
Merzbacher presented only testimonial evidence to support
his claim of deficient representation, and the state court’s
rejection of Merzbacher’s claim rested on its determinations
of the witnesses’ credibility. Section 2254 commands a fed-
eral court to "presume" the correctness of state court factual
findings and only overturn a state court’s credibility finding
when the state court’s error is "stark and clear." Cagle, 520
F.3d at 324. As detailed above, the record here does contain
some evidence to support the state court’s determination as to
Gutierrez’s general lack of credibility. For example, Gutierrez
admitted that this was the only time in a career involving hun-
dreds of criminal cases that she recalled having failed to con-
vey a plea offer to a client. And she offered less than
persuasive reasons for her failure to do so, i.e., she moved her
office when the offer was made and it "was out of [her] mind"
later when she was working to prepare for trial in this very
case.
But, as the federal court carefully explained, the state
court’s analysis contains serious flaws. For example, in find-
ing Gutierrez not credible, the state court heavily and improp-
erly relied on highly prejudicial evidence from outside the
record—the circumstances of Gutierrez’s delayed admission
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to the Maryland Bar, including disclosure of two shoplifting
convictions, and newspaper accounts of her disbarment in
2001.
Further, and perhaps ultimately more significantly, the fed-
eral court pointed out that the record before the state court
contained unrebutted testimony that Merzbacher was never
told about the ten-year offer. Not only did Merzbacher so tes-
tify but the only other persons in a position to know—his two
lawyers—unequivocally confirmed that testimony. Their testi-
mony provides powerful support for his claim because, as the
federal court noted, it "cut significantly against their own
interests since it suggests professional malfeasance."
Moreover, even if Gutierrez’s testimony is not believed on
this point, there is not a shred of evidence that Merzbacher’s
lawyers counseled him about the plea, as they were required
to do in providing effective assistance of counsel. See Lafler,
132 S. Ct. at 1387. Tellingly, even though the state court
found that Gutierrez had conveyed the plea offer to Merzb-
acher, it made no findings as to (or even any mention of)
Gutierrez’s counseling of Merzbacher.2
For these reasons, whether Merzbacher established a rea-
sonable probability that he received deficient representation
presents a very close question—but it is a question we need
not resolve here. This is so because even if Merzbacher did
demonstrate that the state court was unreasonable in finding
he did not receive deficient performance under Strickland, he
did not demonstrate that the state court was unreasonable in
finding it unlikely that Strickland prejudice resulted from this
deficient performance.
2The undisputed evidence as to Gutierrez’s confidence in her ability to
win at trial and her tepid view of the plea offer would certainly permit the
inference that, even if she did tell Merzbacher of the plea offer, she did
not provide appropriate counseling to him as to whether to accept it.
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We note that although the Strickland test speaks of perfor-
mance first and prejudice second, in announcing its test the
Supreme Court explained that "there is no reason for a court
deciding an ineffective assistance claim" to resolve "both
components of the inquiry if the defendant makes an insuffi-
cient showing on one." 466 U.S. at 697. Rather, "[i]f it is eas-
ier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, which we expect will often be so,
that course should be followed." Id. We find this is just such
a case, and accordingly turn to the Strickland prejudice prong.
IV.
To show prejudice from ineffective assistance of counsel in
a case involving a plea offer, petitioners must demonstrate a
reasonable probability that (1) "they would have accepted the
earlier plea offer had they been afforded effective assistance
of counsel," and (2) "the plea would have been entered with-
out the prosecution canceling it or the trial court refusing to
accept it, if they had the authority to exercise that discretion
under state law." Frye, 132 S. Ct. at 1409; accord Lafler, 132
S. Ct. at 1385.
The state court most certainly did not follow this precise
language in its findings. (It could not have done so for the
Supreme Court did not issue Frye and Lafler until well after
the state court had ruled.) But, the state court did make find-
ings relevant to both elements of the Frye prejudice test. We
consider, in turn, its findings with respect to each of those two
elements.
A.
As to whether Merzbacher demonstrated a reasonable prob-
ability that he would have accepted the ten-year plea, the state
court found Merzbacher did not because "he avidly and vocif-
erously maintained his innocence" throughout the proceed-
ings, was still subject to numerous civil suits, would not have
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admitted to any of the allegations in his wife’s presence or to
her knowledge, and stood "a good chance of successfully
maintaining his defense."
Merzbacher argues that he has demonstrated a reasonable
probability that he would have accepted the plea by simply
offering his own post hoc testimony that he would have done
so and pointing out the disparity between the ten-year plea
and the life sentences he received. Merzbacher argues that
these two pieces of evidence, without more, demonstrate the
requisite prejudice under Frye and Lafler. Plaintiff-Appellee’s
Br. at 33-36; id. at 36 (quoting Lafler, 132 S. Ct. at 1387
("prejudice can be shown if loss of the plea opportunity led
to a trial resulting in a conviction on more serious charges or
the imposition of a more severe sentence")).
What exactly Frye and Lafler require of a petitioner to
demonstrate prejudice is not clear at this time. The Sixth Cir-
cuit has adopted the view that a petitioner’s own credible tes-
timony that he would have accepted a plea offer combined
with a disparity between the sentence offered and the sentence
actually received establishes a reasonable probability that the
petitioner would have accepted the plea. See, e.g., Smith v.
United States, 348 F.3d 545, 551-52 (6th Cir. 2003); see also
Titlow v. Burt, 680 F.3d 577, 588-89 (6th Cir. 2012), petition
for cert. filed, No. 12-414 (U.S. Oct. 2, 2012). The Seventh
Circuit requires a petitioner to offer "objective evidence" that
establishes a reasonable probability of acceptance. See, e.g.,
Toro v. Fairman, 940 F.2d 1065, 1068 (7th Cir. 1991). The
Supreme Court has not yet resolved what, if anything, a peti-
tioner must show in addition to his own credible post hoc tes-
timony and a sentence disparity to satisfy the Strickland
prejudice prong. Cf. Frye, 132 S. Ct. at 1411.
But it is entirely clear that to demonstrate a reasonable
probability that he would have accepted a plea, a petitioner’s
testimony that he would have done so must be credible. Thus
in Frye, the Court’s holding that a petitioner had established
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prejudice rested on its finding that the petitioner’s later accep-
tance of a less advantageous plea lent credibility to his post
hoc testimony. See id. ("There appears to be a reasonable
probability Frye would have accepted the prosecutor’s origi-
nal offer of a plea bargain if the offer had been communicated
to him, because he pleaded guilty to a more serious charge,
with no promise of a sentencing recommendation from the
prosecutor." (emphasis added)); see also Titlow, 680 F.3d at
591 ("Titlow’s position that [she would] have accepted the
plea offer but for Toca’s intervening advice is bolstered by the
fact that she had actually accepted the plea on the record at
the October 2001 hearing. . . . We may consider this testi-
mony as evidence of Titlow’s intent."). Accordingly, only if
Merzbacher’s testimony that he would have accepted the plea
was deemed credible could Frye and Lafler assist him. The
state court found this testimony not credible. Our close exami-
nation of the record and application of §§ 2254(d)(2) and
2254(e)(1) require us to defer to that finding.
1.
First, Merzbacher has failed to demonstrate, as required by
§ 2254(d)(2), that the state court’s adjudication that his testi-
mony was not credible that he would have accepted the plea
"was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding."
Credibility determinations are factual determinations. As
such, a decision based on a credibility determination "will not
be overturned on factual grounds unless objectively unreason-
able in light of the evidence presented in the state court pro-
ceeding." Miller-El, 537 U.S. at 340. Merzbacher’s self
serving assertion that he would have accepted the plea is, as
both the state and federal courts recognized, "the type of testi-
mony . . . subject to heavy skepticism." See United States v.
Day, 969 F.2d 39, 46 n.9 (3d Cir. 1992) ("[C]ourts should be
wary of this sort of claim because defendants will always
want the best of both worlds: the chance at acquittal at trial,
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yet the chance to plead guilty if the trial defense fails.").
Merzbacher has failed to show that the state court was objec-
tively unreasonable in finding that this testimony was only
"wishful thinking," entitled to no credence.
In so holding, we recognize that the federal court’s contrary
conclusion that Merzbacher would have accepted the plea
rested not just (or even primarily) on its belief in Merzb-
acher’s own testimony. Rather, the federal court also relied on
the "exceptional genero[sity]" of the ten-year offer, and Merz-
bacher’s "disastrous" legal situation, with the prospect of the
victims in sixteen cases "offer[ing] specific, emphatic and
shocking testimony" against him. But even the federal court
acknowledged there was "some evidence" supporting the state
court’s findings that Merzbacher would not have accepted the
plea. Thus, the federal court recognized that "[i]t is undis-
puted that Merzbacher maintained his innocence throughout,"
that "evidence supported th[e] idea that" he "would have per-
sonal difficulty pleading guilty because he did not want to
lose the support of his family and friends," and that "Gutierrez
testified that she believed that she could win [the Murphy
case]." The federal court simply found the former evidence
far more persuasive than the latter.
But AEDPA does not permit a federal court to make such
a determination. The state court and the federal court
reviewed the same somewhat conflicting evidence as to
whether Merzbacher would have accepted the plea. AEDPA
requires deference to the state court’s assessment of that evi-
dence, even if the assessment is incorrect, unless it is unrea-
sonable. Wood, 130 S. Ct. at 850-51 (holding that, on habeas
review, a federal court must uphold a state court decision
when, "[r]eviewing all of the evidence," the state court’s deci-
sion "even if . . . debatable, . . . is not unreasonable").
The state court did not act unreasonably in finding Merzb-
acher not credible when he stated that he would have taken
the plea if it had been offered to him. This is especially so
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given that only the state court had the opportunity to observe
the testimony on this critical point. See Cagle, 520 F.3d at
324. "A federal court can disagree with a state court’s credi-
bility determination," Miller-El, 537 U.S. at 340, but disagree-
ment alone is not enough. The federal court must conclude
not only that the state court’s determination was wrong, but
that it was unreasonable in light of the evidence presented,
that is, it is not "debatable among jurists of reason." Id. at 336.
In this case, the record evidence does not permit that conclu-
sion.
Accordingly, we must hold that Merzbacher has failed to
meet his burden under § 2254(d)(2).
2.
Moreover, Merzbacher did not rebut the state court’s find-
ings by clear and convincing evidence as required by
§ 2254(e)(1) and so his petition for habeas relief fails for this
additional reason. Merzbacher does not actually contend that
he did satisfactorily rebut the state court’s findings. Instead,
he argues that "[t]here was no evidence to support the [state
c]ourt’s fact finding." Plaintiff-Appellee’s Br. at 23.
Merzbacher relies on Carlson v. Jess, 526 F.3d 1018, 1024
(7th Cir. 2008), in which the Seventh Circuit held that "[w]ith
nothing in the record to back it up, the trial judge’s finding
was clearly unreasonable." The federal court agreed, citing
another Seventh Circuit case, Mendiola v. Schomig, 224 F.3d
589, 592 (7th Cir. 2000) ("If a state court’s finding rests on
thin air, the petitioner will have little difficulty satisfying the
standards for relief under § 2254[(e)(1)]."). We do not dis-
agree with this suggestion. For as the Supreme Court has
instructed, "[e]ven in the context of federal habeas, deference
does not imply abandonment or abdication of judicial
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review," Miller-El, 537 U.S. at 340. However, in this case, the
state court’s findings do not "rest[ ] on thin air."3
Rather, as noted above, the federal court itself recognized
that there was "some evidence" before the state court support-
ing the state court’s findings that Merzbacher demonstrated
no prejudice. See supra Part IV.A.1. The federal court simply
found the evidence "militating towards" finding Merzbacher
would have accepted the plea bargain was "far more compel-
ling" than that which the state court relied on in finding Merz-
bacher would not have accepted it. (Emphasis added.)
The federal court’s disagreement with the state court
derived not from "clear and convincing evidence" in the
record that rebutted the state court’s fact-finding as required
by § 2254(e)(1). Rather, it rested on the different weight the
federal court gave to the evidence previously evaluated by the
state court. Accordingly, Merzbacher’s petition for habeas
relief also fails to meet the requirements of § 2254(e)(1).
3The federal court suggested that the state court’s reliance on a "nega-
tive inference" in holding that Gutierrez advised Merzbacher of the offer
"disregard[ed] clear and long-settled Maryland law" as to negative infer-
ences. As the federal court noted, under Maryland law, a fact finder’s
"prerogative not to believe certain testimony . . . does not constitute affir-
mative evidence to the contrary." In re Gloria H., 979 A.2d 710, 719 (Md.
2009). But on post-conviction review, the State did not bear the burden of
proving that Merzbacher in fact had received effective assistance of coun-
sel. Instead, Merzbacher bore the burden of proving that he had received
constitutionally deficient performance that prejudiced him. Accordingly,
the state court did not err in holding, based on its findings as to credibility,
that Merzbacher had failed to meet this burden. See Lonberger, 459 U.S.
at 435 ("While disbelief of [a prisoner’s] testimony may not form the basis
for any affirmative findings by the state trial court on issues with respect
to which the state bore the burden of proof, it certainly negates any infer-
ences favorable to [the prisoner] such as those drawn by the Court of
Appeals, based on his testimony before the Ohio trial court.").
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B.
The state court additionally made findings relevant to the
second element of the Frye test: whether there was a reason-
able probability that "the plea would have been entered with-
out the prosecution canceling it or the trial court refusing to
accept it." 132 S. Ct. at 1409. Again, our examination of the
record and §§ 2254(d)(2) and 2254(e)(1) require us to defer
to these findings.
The state court determined that the "plea discussions final-
ized only one leg of a putative plea agreement, the length of
sentence and did not finalize the other legs." In light of the
unsettled issues, the state court found "impossible" Merzb-
acher’s task of "convincing the court that the discussion of a
plea to ten years could have been massaged into a mutually
agreeable acceptance of an offer." As a result, the state court
determined that Merzbacher failed to establish a reasonable
probability that the prosecutor and the presiding judge would
ultimately have accepted and entered a "mutually agreeable"
plea.
On review, the federal court held that "the evidence clearly
indicates a sufficiently well-defined offer" to infer that the
plea would have been agreed to, accepted, and entered. The
federal court arrived at this holding despite finding that (1) it
remained to be decided "which cases would be nol prossed
and which cases would get the guilty plea," and (2) "it is
unclear if the plea would have been an Alford plea (Judge
Gordy indicated that he would not have accepted such a plea)
or a straight guilty plea." As to the former, the federal court
characterized this unresolved issue as a "tweak" that could be
resolved "without much additional negotiation"; as to the lat-
ter, the federal court provided no explanation but apparently
did not believe this lack of clarity rendered the offer
"[in]sufficiently well-defined."
We do not agree that the evidence before the state court
"clearly indicates a sufficiently well-defined offer." Rather, as
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the federal court acknowledged, several of the offer’s terms
lacked definition. Moreover, the undefined terms were of the
sort that require substantial negotiation and compromise. This
is particularly so given, as the federal court recognized, that
this case involves charges as "hideous and heinous" as child
rape, in which a large number of victims had come forward,
and which attracted extraordinary public attention. We cannot
agree with the federal court’s characterization of the remain-
ing negotiations as requiring only "a few tweaks" in light of
Merzbacher’s persistence in maintaining his innocence and
the likely immense pressure on the State to obtain a result the
public could swallow.
Certainly, there may be cases in which a petitioner can
show Strickland prejudice despite the incipience of the plea
offer he did not accept due to his counsel’s lack of communi-
cation or inadequate advice.4 However, in a case like this, in
which significant evidence weighed against finding the peti-
tioner and the prosecutor would have agreed on a plea, the
offer’s nascence figures prominently in the calculus. The lack
of definition in the plea offer makes it substantially harder to
determine it likely that a plea acceptable to Merzbacher would
have been "entered without the prosecution canceling it or the
trial court refusing to accept it." Frye, 132 S. Ct. at 1409.
Accordingly, Merzbacher has failed to demonstrate that the
state court’s determination there was no reasonable probabil-
ity that the plea would have been entered and accepted "was
based on an unreasonable determination of the facts in light
4Frye involved an indisputably formal plea and so the Supreme Court
had no need to resolve how to consider a nascent plea offer. 132 S. Ct. at
1408. The Frye Court did, however, encourage prosecutors and judges to
adopt procedures to avoid problems inherent in nascent plea offers by
requiring written plea offers and/or making all formal plea offers part of
the record before trial. Id. at 1408-09. Such measures, the Court explained,
could "help ensure against late, frivolous, or fabricated claims after a later,
less advantageous plea offer has been accepted or after a trial leading to
conviction with resulting harsh consequences." Id.
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of the evidence presented," 28 U.S.C. § 2254(d)(2). Nor has
he rebutted this determination "by clear and convincing evi-
dence." Id. at 2254(e)(1). Under the deferential standard
AEDPA requires, we are unable to disrupt the state court’s
finding that it is not reasonably probable that such a plea
would have been entered here.
V.
For the reasons set forth above, the judgment of the district
court is
REVERSED.
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