Milton v. Miller ( 2016 )


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  •                                                                                   FILED
    United States Court of Appeals
    PUBLISH                                Tenth Circuit
    UNITED STATES COURT OF APPEALS                       February 9, 2016
    Elisabeth A. Shumaker
    FOR THE TENTH CIRCUIT                             Clerk of Court
    _________________________________
    ANTONIO DON MILTON,
    Petitioner - Appellant,
    v.                                                          No. 15-6069
    DAVID MILLER,
    Respondent - Appellee.
    _________________________________
    Appeal from the United States District Court
    for the Western District of Oklahoma
    (D.C. No. 5:10-CV-01367-F)
    _________________________________
    Submitted on the briefs:*
    John T. Carlson, Office of the Federal Public Defender, Denver, Colorado, for Petitioner-
    Appellant.
    Jay Schniederjan, Office of the Attorney General for the State of Oklahoma, Oklahoma
    City, Oklahoma; Joshua L. Lockett, Office of the Attorney General for the State of
    Oklahoma, Oklahoma City, Oklahoma, for Respondent-Appellee.
    _________________________________
    Before MATHESON, MURPHY, and PHILLIPS, Circuit Judges.
    _________________________________
    PHILLIPS, Circuit Judge.
    _________________________________
    *
    After examining the briefs and appellate record, this panel has determined
    unanimously that oral argument would not materially assist in the determination of
    this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
    ordered submitted without oral argument.
    Antonio Don Milton, an Oklahoma state prisoner, requests a certificate of
    appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
    petition for habeas relief. Exercising jurisdiction under 28 U.S.C. §§ 1291
    and 2253(a), we deny Milton’s request for a COA.
    I.     BACKGROUND
    We have previously detailed Milton’s history in Oklahoma state courts and the
    federal district court. See Milton v. Miller, 
    744 F.3d 660
    , 663–68 (10th Cir. 2014).1
    Milton’s case returns to us after we reversed the district court’s denial of his habeas
    petition solely regarding Milton’s ineffective-assistance-of-appellate-counsel claim
    and remanded for an evidentiary hearing on a narrow factual dispute, which, once
    resolved, would assist the district court in better assessing the merits of Milton’s
    remaining ineffective-assistance claim. See 
    id. at 673.
    With evidence from the
    hearing now available to us, we have the necessary facts to assess Milton’s claim.
    Because the evidentiary hearing revealed new facts not known to courts that have
    previously addressed Milton’s post-conviction claims, we recount Milton’s journey
    through the criminal-justice system for the sake of clarity and coherence with our
    earlier opinion.
    A.    State Court Proceedings
    In 2007, Milton was prosecuted in two separate cases pending simultaneously
    before a state district court. One included a charge for Milton’s trafficking in cocaine
    1
    In his initial habeas appeal, we granted Milton’s request for a COA only “to
    appeal the dismissal of his claim of ineffective assistance based on counsel’s alleged
    failure to inform him of the plea offer.” R. vol. 1 at 959; see 
    id. at 953–59.
                                               2
    base (crack cocaine),2 while the other case concerned his involvement in a drive-by
    shooting.3 Separate attorneys represented Milton in each case: Jacob Benedict, a
    public defender, represented Milton in the drug-trafficking case until Michael Arnett
    took over after the preliminary hearing; Joe Reynolds, a private attorney, represented
    Milton in the drive-by-shooting case. Because Milton had two earlier felony drug-
    trafficking convictions, the crack-cocaine-trafficking charge mandated life without
    parole upon conviction. See Okla. Stat. tit. 63, § 2-415(D)(3) (2004) (“If the person
    has previously been convicted of two or more violations of this section or any
    provision of the Uniform Controlled Dangerous Substances Act which constitutes a
    felony, or a combination of such violations arising out of separate and distinct
    transactions, [his sentence shall be a term of imprisonment of] life without parole.”).
    The State extended Milton at least one plea offer that covered at least one of
    Milton’s two cases. The parties have disputed the terms of the offered plea deal (or
    deals) throughout Milton’s pretrial and post-conviction proceedings. But Milton
    ultimately rejected the offered plea deal(s) and went to trial in the drug-trafficking
    case. He was convicted of the crack-cocaine-trafficking charge and sentenced to the
    2
    In this case, a jury convicted Milton of: trafficking in cocaine base after two
    or more previous felony convictions (mandatory life without parole); possession of a
    firearm after two or more previous felony convictions (consecutive life sentence with
    a possibility of parole); possession of marijuana after two or more previous felony
    convictions (consecutive ten years); and possession of drug paraphernalia
    (consecutive one year). We refer to this case as the “drug-trafficking case.”
    3
    Milton was formally charged with using a vehicle to facilitate the intentional
    discharge of a firearm, but for brevity we refer to this case as the “drive-by-shooting
    case.”
    3
    mandatory term of life without parole. After this, the State let the drive-by-shooting
    case lapse, leaving the court to dismiss it for lack of prosecution.
    On direct appeal, Katrina Conrad-Legler represented Milton. The Oklahoma
    Court of Criminal Appeals (OCCA) affirmed all of Milton’s convictions and
    sentences, including the drug-trafficking conviction with its mandatory life-without-
    parole sentence. Later, Milton filed a pro se application for post-conviction relief and
    requested an evidentiary hearing in Oklahoma state district court. Relevant here,
    Milton argued “that his appellate counsel rendered ineffective assistance by failing to
    assert on direct appeal that Milton’s trial counsel was ineffective for failing to inform
    Milton of a plea-bargain offer made by the prosecution prior to the preliminary
    hearing.” 
    Milton, 744 F.3d at 664
    .
    Milton’s ineffective-assistance claim had some basis in the record. At a
    pretrial hearing in the drug-trafficking case, Judge Twyla Mason Gray mentioned
    that, sometime before his preliminary hearing, Milton had rejected an offered plea
    deal providing for a 23-year sentence in the drug-trafficking case.4 Upon hearing
    Judge Gray say this, Milton told his counsel at the time of trial, Arnett, who then told
    Judge Gray, that Milton had never heard about a 23-year offer. In response to the
    confusion, the prosecutor at the pretrial hearing, Ashley Altshuler, referenced the
    notes of Benjamin McGoldrick, the prosecutor who handled the case until leaving the
    4
    Specifically, Judge Gray said, “I cannot remember exactly what we put on
    the record earlier, but the defendant had the opportunity to plead guilty and receive
    23 years [in the drug-trafficking case] prior to preliminary hearing and he turned that
    down.” R. vol. 2 at 215.
    4
    office sometime after December 2007. McGoldrick’s notes reflected that on the day
    of a preliminary-hearing conference,5 he offered Milton a plea deal of 25 years’
    incarceration in the drug-trafficking case, to run concurrently with 20 years’
    incarceration in the drive-by-shooting case (25/20 Deal).6 Now better informed,
    Judge Gray declared irrelevant any plea deals McGoldrick had offered Milton before
    the preliminary hearing because those deals had expired. Given this factual
    background, Milton argued that his direct-appeal counsel had ineffectively assisted
    him by not raising his trial counsel’s ineffectiveness in not telling Milton about the
    23-year offer Judge Gray had mentioned.
    The State opposed Milton’s application for post-conviction relief, relying
    principally on an affidavit Jacob Benedict (Milton’s public defender) submitted,
    when the State supposedly had offered Milton the 23-year deal. In his affidavit,
    Benedict recounted two plea deals the State had offered to Milton before the
    preliminary hearing. The plea deals contained essentially the same terms, differing
    only on the date they were communicated: Milton was offered 20-year concurrent
    5
    The preliminary-hearing conference, distinct from the preliminary hearing,
    took place on August 2, 2007. The preliminary hearing took place on October 30,
    2007.
    6
    Only if the prosecutor reduced Milton’s pending drug-trafficking charge
    could Milton avoid the mandatory life-without-parole sentence upon conviction. See
    R. vol. 2 at 126 (“Q: . . . [W]ould it be fair to conclude that on the 2nd of August you
    offered Joe Reynolds a package deal on both cases: 25, possession with intent, and 20
    on the drive-by? A: It would have been to reduce the trafficking to possession with
    intent, give him 25 on that, 25 on all the other counts contingent on him taking 20
    years to do on the drive-by shooting. . . . Q: You just have to drop the trafficking to
    possession with intent? A: Yes, ma’am. Q: Okay. And that automatically takes life
    without parole off the table? A: Yes, ma’am.”).
    5
    sentences in the drug-trafficking case and the drive-by-shooting case (20/20 Deal).
    The affidavit noted that McGoldrick originally offered the 20/20 Deal sometime
    before the preliminary-hearing date, and that McGoldrick also offered the same deal
    just before the hearing began. According to Benedict’s affidavit, Milton rejected the
    offers, and the parties proceeded with the preliminary hearing.
    Based partly on this information, the state district court denied Milton’s
    application for post-conviction relief on his ineffective-assistance-of-appellate-
    counsel claim, concluding that “[t]here is nothing submitted in the record which
    indicates that appellate counsel’s performance rendered the result unreliable or the
    proceeding fundamentally unfair.” R. vol. 1 at 214. On appeal, the OCCA affirmed,
    citing Strickland v. Washington, 
    466 U.S. 668
    , 687 (1984), and holding as follows:
    [I]n order to prevail on his claim of ineffective assistance of
    appellate counsel, [Milton] must establish counsel made errors so
    serious the performance was deficient, and that the deficient
    performance deprived him of an appeal whose results are reliable
    and fair. The fact appellate counsel fails to recognize or raise a
    claim, regardless of merit, is not sufficient alone to establish
    ineffective assistance of counsel, or to preclude enforcement of a
    procedural default. We [find Milton] has not established appellate
    counsel’s performance was deficient, or that the result of his
    appeal was not reliable and fair.
    R. vol. 1 at 236–37 (citation omitted) (emphasis added). Thus, as Milton’s
    application for post-conviction relief proceeded through Oklahoma courts, the courts
    6
    considered conflicting evidence about offers for the 20/20 Deal, the 25/20 Deal, and
    a supposed 23-year deal.7
    The timing, communication, and existence of each of these deals matter.
    Obviously, had McGoldrick offered Milton the 20/20 Deal minutes before the
    preliminary hearing, Milton could not have suffered prejudice from any earlier failure
    by his counsel to communicate a less favorable 23-year offer. But had McGoldrick
    offered Milton the 25/20 Deal before the preliminary hearing, Milton could have
    suffered prejudice if his counsel failed to communicate a more favorable 23-year deal
    before the preliminary hearing. But the state courts denied Milton relief without ever
    determining whether McGoldrick had offered a 23-year deal and, if so, whether
    Milton’s counsel had told Milton about it.
    B.    Federal Habeas Proceedings
    Milton next filed a pro se habeas petition under 28 U.S.C. § 2254 in the United
    States District Court for the Western District of Oklahoma. Milton alleged various
    claims for relief, including the same ineffective-assistance-of-appellate-counsel claim
    he had argued in the state courts:
    Appellate counsel, Katrina Conrad-Legler, rendered ineffective
    assistance by failing to raise in [Milton]’s direct appeal the
    following sub-proposition[] of trial counsel’s deficienc[i]es: . . .
    Trial attorney, Joe Reynolds, rendered ineffective assistance by
    failing to inform [Milton] of a (pre-preliminary hearing) plea-
    bargain offer of 23 years on all counts until the day set for trial,
    and well after the plea offer had been withdrawn.
    7
    At this stage of the proceedings, it was unclear whether the supposed 23-year
    plea offer related to the drug-trafficking case, the drive-by-shooting case, or both.
    7
    R. vol. 1 at 29 (capitalization omitted). The magistrate judge assigned to Milton’s
    case issued a report recommending that the district court deny Milton’s habeas
    petition in its entirety.
    In concluding that Milton’s ineffective-assistance claim lacked merit, the
    magistrate judge referenced Benedict’s affidavit, the same one that the state courts
    had relied upon to deny Milton’s claim. Milton argued that the 20/20 Deal referenced
    in the affidavit was a different plea deal than the one Milton had complained of in his
    habeas petition (i.e., the 23-year deal). The magistrate judge interpreted Milton’s
    argument as conceding the truth of the affidavit. From this, the magistrate judge
    concluded that Milton could not have suffered any prejudice from not hearing about
    the 23-year offer since he had already rejected the more favorable 20/20 Deal.
    Accordingly, the magistrate judge recommended that the district court deny Milton’s
    petition because he had failed to show any prejudice.
    Milton objected to the magistrate judge’s report and recommendation. He
    conceded that he had been offered a 20-year plea deal in the drive-by-shooting case
    but denied receiving any offers in the drug-trafficking case—whether the purported
    offer was the 25/20 Deal or the 23-year deal. He claimed that he first heard of both
    the 25/20 Deal and the 23-year deal when Altshuler and Judge Gray discussed the
    pre-preliminary-hearing plea offers on the eve of trial. Therefore, Milton argued that
    either Benedict was lying in his affidavit about having conveyed to him the offered
    20/20 Deal or that Benedict had confused the drug-trafficking case with the drive-by-
    shooting case. Milton noted that “[t]he issue” was that no one had “informed [him] of
    8
    any pre-preliminary hearing plea offer in [the drug-trafficking case], and as a direct
    result, rather than serving a twenty-five (25) year sentence with all counts running
    concurrently,” he was serving a life sentence without the possibility of parole. R. vol.
    1 at 894. From this, he contended that he had been “prejudiced by trial counsel’s
    failure to timely inform him of the State’s pre-preliminary hearing plea offer of
    twenty-five (25) years in [the drug-trafficking case].” 
    Id. The confusion
    over the
    offers for the 20/20 Deal, the 25/20 Deal, and the 23-year deal persisted. Was Milton
    now arguing that his trial counsel had failed to communicate the 25/20 Deal and the
    23-year deal he mentioned in his habeas petition? If so, the record does not show that
    he expressed surprise at the pretrial hearing after Altshuler told Judge Gray about the
    pre-preliminary-hearing plea offer of the 25/20 Deal.
    Leaving Milton’s objections unaddressed, the district court simply adopted the
    magistrate judge’s report and recommendation. The district court declined to grant a
    COA, but we later granted Milton’s pro se request for a COA on his ineffective-
    assistance-of-appellate-counsel claim and appointed Milton counsel to assist with his
    appeal.
    In Milton, we concluded that the OCCA’s ineffective-assistance analysis was
    contrary to clearly established federal law and that Milton had overcome the bar that
    28 U.S.C. § 2254(d)(1) imposed. 
    Milton, 744 F.3d at 669
    –70. Specifically, we
    concluded that the OCCA “rendered meaningless” its prejudice analysis under
    Strickland “[b]y ignoring the merits of the underlying predicate claim in assessing
    appellate counsel’s performance.” 
    Id. at 670.
    In this regard, we held that the OCCA
    9
    had “deviated from the controlling federal standard.” 
    Id. (quoting McGee
    v. Higgins,
    
    568 F.3d 832
    , 839 (10th Cir. 2009)). With § 2254(d)(1)’s bar no longer in play, we
    then reviewed de novo Milton’s Strickland claim.
    Applying the two-pronged Strickland framework, we first concluded that
    Milton’s appellate counsel, upon reviewing Milton’s trial transcripts, should have
    seen and raised as an issue that Milton’s trial attorney had “failed to promptly and
    meaningfully convey to Milton the existence of a plea offer made by the prosecution
    at some point” before the preliminary hearing. 
    Id. at 671.
    The trial counsel’s failure,
    we concluded, would have been “inconsistent with prevailing professional norms and
    [would have given] rise to a viable claim of ineffective assistance of trial counsel.”
    
    Id. We therefore
    held that “[b]y failing to discover and raise the issue [of trial
    counsel’s ineffectiveness] on direct appeal, Milton’s appellate counsel clearly
    performed deficiently.” 
    Id. In addition,
    the Milton court considered under Strickland’s second prong
    “whether Milton was prejudiced by his appellate counsel’s deficient performance.”
    
    Id. We concluded
    that the state courts and the federal district court had erred by
    finding, based solely on Benedict’s affidavit and in the face of conflicting evidence,
    that Milton had suffered no prejudice from his appellate counsel’s ineffective
    assistance. We noted that prejudice depended on whether Milton’s counsel had failed
    to convey to Milton any plea offer in the drug-trafficking case: “Assuming, for
    purposes of argument, that Milton is truthfully alleging that he was not informed of
    any pre-preliminary-hearing plea offer, and that he would have accepted such offer
    10
    had he been timely informed of it, that is clearly sufficient to establish
    prejudice . . . .” 
    Id. at 672.
    We concluded that Milton was entitled to a federal evidentiary hearing to
    resolve this factual dispute because the appellate record did not give us sufficient
    information to do so.8 The evidentiary hearing would bring forth crucial facts: either
    (1) that Milton’s trial counsel had indeed failed to communicate a favorable plea
    deal, which likely would satisfy Strickland’s prejudice prong, or (2) that Milton’s
    trial counsel had communicated the most favorable plea deal, meaning Milton’s
    ineffective assistance claim would fail to satisfy Strickland’s prejudice prong. As
    explained below, the evidentiary hearing produced facts that did not fit squarely into
    either category.
    8
    We further concluded that, in this case, 28 U.S.C. § 2254(e)(2) would not
    preclude the district court from holding an evidentiary hearing. By asking for an
    evidentiary hearing on the ineffective-assistance claim in the state courts, Milton
    hadn’t “failed to develop the factual basis” of his claim. 28 U.S.C. § 2254(e)(2); see
    Williams v. Taylor, 
    529 U.S. 420
    , 432 (2000) (“Under the opening clause of
    § 2254(e)(2), a failure to develop the factual basis of a claim is not established unless
    there is lack of diligence, or some greater fault, attributable to the prisoner or the
    prisoner’s counsel.”); Stouffer v. Trammell, 
    738 F.3d 1205
    , 1219 (10th Cir. 2013)
    (“[The prisoner’s] counsel asked the trial court for a hearing . . . . As the State
    concedes, he raised the issue in his state application for post-conviction relief . . . .
    This is sufficient to satisfy § 2254(e)’s diligence requirement.”).
    11
    C.     The Evidentiary Hearing
    On remand, the district court held an evidentiary hearing to resolve the factual
    dispute regarding the nature of Milton’s plea offers. We recount the testimony
    relevant to this appeal.9
    1.     McGoldrick’s Testimony
    The testimony of Benjamin McGoldrick, the prosecutor assigned to both of
    Milton’s cases until McGoldrick left the office sometime after December 2007,
    produced three important facts.
    First, McGoldrick testified that he never communicated a 23-year plea deal to
    either Benedict or Reynolds, notwithstanding his case-file notes referencing a
    possible plea offer for a 23-year sentence in the drug-trafficking case and a
    concurrent 23-year sentence in the drive-by-shooting case (23/23 Deal).10
    Importantly, these notes about the possible 23/23 Deal are dated December 18,
    2007—well after the October 30, 2007 preliminary hearing. McGoldrick testified that
    he wrote the notes about the possible 23/23 Deal as a potential recommendation if
    Milton’s attorneys agreed to resolve the case without trial at a pretrial conference
    scheduled for the following day, December 19, 2007. But critically, McGoldrick
    9
    The attorney who represented Milton in the drive-by-shooting case, Joe
    Reynolds, died before the evidentiary hearing. He therefore could not testify about
    his recollection of the events in Milton’s case.
    10
    The note in McGoldrick’s file for the drug-trafficking case read: “Rec: 23 to
    do; amend Count 2 to [possession with intent].” R. vol. 2 at 140–41. His note in his
    file for the drive-by-shooting case: “rec: 23 to do c/c with [the drug-trafficking
    case].” 
    Id. 12 testified
    that he in fact never communicated an offer for the 23/23 Deal to either of
    Milton’s attorneys. McGoldrick also testified that he was uncertain how Judge Gray
    knew anything about his notes for the 23/23 Deal at the pretrial conference where she
    mentioned it.
    Second, McGoldrick testified that on August 2, 2007, with Milton present, he
    communicated the 25/20 Deal at least to Reynolds, Milton’s counsel in the drive-by-
    shooting case. McGoldrick’s file notes for each case substantiate the existence and
    communication of the 25/20 Deal. That offer remained pending before the
    preliminary hearing on October 30, 2007. And McGoldrick also testified that he
    made Milton a better offer in the courtroom immediately before the preliminary
    hearing began: the 20/20 Deal. McGoldrick did not write a case-file note about
    having offered the 20/20 Deal.
    Third, McGoldrick testified that on August 17, 2007, he told Reynolds,
    without Milton present, that if Milton succeeded in getting the drive-by-shooting case
    dismissed, McGoldrick would “probably” pursue the life-without-parole sentence in
    the drug-trafficking case.11 R. vol. 2 at 137. This effectively meant McGoldrick
    “probably” wouldn’t make any plea offer that reduced Milton’s pending drug-
    11
    Specifically, McGoldrick said:
    I told Reynolds that the offer on both cases would go away if this
    case, being the drive-by case, got dismissed. I would probably
    proceed with the recommendation of life without parole if the
    case got dismissed. Mr. Reynolds said he wanted to talk to the
    defendant and his family about it.
    R. vol. 2 at 137.
    13
    trafficking charge—the only way Milton could escape Oklahoma’s mandatory life-
    without-parole sentence applying to that charge. In other words, the 25/20 Deal—the
    sole offer pending on August 17, 2007—was a package deal, and McGoldrick would
    continue to insist on guilty pleas in both cases.12 McGoldrick testified that he never
    discussed this approach to prosecuting the cases with Benedict, Milton’s counsel in
    the drug-trafficking case.
    2.     Altshuler’s Testimony
    At the evidentiary hearing, the court also heard from Ashley Altshuler, the
    prosecutor who took over the drug-trafficking and drive-by-shooting cases after
    McGoldrick left the district attorney’s office. Most importantly, Altshuler explained
    how Judge Gray had heard of a 23-year deal: “I believe we had a conversation and I
    just had the files in front of me and I believe she [Judge Gray]—there may have been
    a discussion of what the offer was before the prelim.” R. vol. 2 at 215–16. Simply
    put, Judge Gray knew about a 23-year deal because Altshuler had conversed with
    Judge Gray while undoubtedly referencing what turned out to be McGoldrick’s
    written musings about possibly offering the 23/23 Deal—as stated, a possible offer in
    fact never made.
    12
    McGoldrick insisted on Milton’s serving a substantial sentence. In
    Oklahoma, the drive-by-shooting charge was an “85 percent crime,” one conditioning
    parole eligibility on service of 85% of the sentence imposed. R. vol. 2 at 67. Thus,
    had Milton accepted offers for the 25/20 or 20/20 Deal, he likely would have served
    about 17 years concurrently on both offenses. Accordingly, Milton’s prison time
    might well have been the same whether Milton pleaded to the 25/20 Deal or the
    20/20 Deal. He would have been eligible for parole in the drug-trafficking case long
    before he was eligible for parole in the drive-by-shooting case.
    14
    Understandably, after reading McGoldrick’s notes, Altshuler thought that
    McGoldrick had offered Milton the 23/23 Deal. But Altshuler already knew that
    McGoldrick had dated his notes about the 23/23 Deal December 18, 2007, nearly two
    months after the preliminary hearing. Accordingly, Altshuler told Judge Gray that the
    pre-preliminary hearing offer had been “25 on possession with intent with all other
    counts to run concurrent and then also to run concurrent with the 20 in [the drive-by-
    shooting case]. It was before prelim.” R. vol. 2 at 216.
    Amid the multiple plea offers and dates, Judge Gray made an honest mistake.
    Contrary to Judge Gray’s misunderstanding, McGoldrick had not even contemplated
    offering the 23/23 Deal Judge Gray had heard about in her conversation with
    Altshuler until after the preliminary hearing, not before it. The 25/20 Deal was the
    sole offer pending before the preliminary hearing, just as Altshuler had told Judge
    Gray based on McGoldrick’s notes. A relative newcomer to the case, Altshuler had
    no way to know about McGoldrick’s offering the 20/20 Deal to Milton in the
    courtroom immediately before the preliminary hearing began—as mentioned,
    McGoldrick did not write a note in the file about the offer or Milton’s refusal of it.
    Altshuler also could not have known from McGoldrick’s notes whether McGoldrick
    ever offered Milton the 23/23 Deal, whether on December 18, 2007, or after.
    3.     Benedict’s Testimony
    Jacob Benedict, the public defender who represented Milton in the drug-
    trafficking case, also testified at the evidentiary hearing. Benedict’s case notes and
    testimony revealed two important facts.
    15
    First, Benedict’s case notes indicated that McGoldrick had offered the 25/20
    Deal sometime before the preliminary-hearing date.13 Benedict also testified that he
    recalled, even without any notes, that McGoldrick offered the 20/20 Deal in the
    courtroom before the preliminary hearing began. Benedict also admitted that he may
    have erred in the portion of his affidavit where he stated that the pending offer before
    the preliminary-hearing date was the 20/20 Deal. Instead, after viewing McGoldrick’s
    case files, Benedict conceded that it probably had been the 25/20 Deal. In addition,
    Benedict still recalled McGoldrick’s having offered the 20/20 Deal in the courtroom
    before the preliminary hearing began, consistent with his earlier statement in a
    different portion of his affidavit.
    Second, Benedict corroborated McGoldrick’s earlier testimony: McGoldrick
    had communicated to Reynolds, but not to Benedict, that McGoldrick would continue
    to pursue the drug-trafficking case as already charged—resulting in a mandatory life-
    without-parole sentence in the drug-trafficking case—if the court ultimately
    dismissed the drive-by-shooting case.14 Despite McGoldrick’s failure to communicate
    this prosecution position to both of Milton’s attorneys, Benedict recalled that
    13
    Benedict had written a note in his file for the drug-trafficking case saying:
    “reduce Count 2 to 25 and possession with intent.” R. vol. 2 at 245. This note was
    located directly below a notation memorializing a 20-year offer in the drive-by-
    shooting case and above a note indicating the “offer is open until prelim.” R. vol. 1 at
    1037. Benedict testified at the evidentiary hearing that, based on these notes, the
    25/20 Deal had been conveyed to him.
    14
    Benedict also corroborated McGoldrick’s testimony that McGoldrick never
    offered the 23/23 Deal.
    16
    Reynolds discussed every other detail relevant to Milton’s plea offers at the
    preliminary hearing, when Milton and both of his attorneys were present:
    Q:        [W]as it ever discussed that a plea might be in Mr.
    Milton’s best interest?
    A:        Well, absolutely. And that would have been the October
    30th meeting where—which essentially Joe Reynolds
    was on point talking with Mr. Milton about the fact that
    what the offer was, which would have been the 20-year
    offer on the drive-by case, but that he needed to take
    care of both of them because they weren’t parsing them
    out or splitting them up for us.
    * * *
    [On October 30, 2007, at the preliminary hearing,] I
    remember it vividly that Mr. Reynolds was essentially
    telling Mr. Milton that he needed to take the offer from
    the state. And what I remember vividly was Mr. Milton
    with his head down shaking his head referencing the
    drive-by case, that he just—that seemed to be what
    drove him in his decision-making.
    [Court]: So are you telling the Court that Mr. Reynolds was
    fairly unequivocal in his recommendation that Mr.
    Milton take the then pending deal in the drive-by case?
    [A]:      Yes.
    [Court]: And that was for [] what sentence?
    17
    [A]:     That was for a 20-year sentence, which he would have
    had to serve 85 percent of that sentence. And I recall it
    as a 20 on possession with intent, but notes within the
    documents here indicate that it was a 25-year sentence
    on possession with intent, all running together,
    concurrent, at the same time.
    R. vol. 2 at 273–76.15
    4.      Milton’s Testimony
    Milton also testified at the evidentiary hearing. Relevant to this appeal, Milton
    admitted receiving a 20-year plea offer for the drive-by-shooting case on the day of
    the preliminary hearing, but he testified that he never received any plea offer in the
    drug-trafficking case. Milton also testified that no one ever told him that any plea
    offer in one of his two pending cases was contingent on his accepting an offer in the
    other case. Finally, Milton testified that Reynolds never told him that the State would
    probably continue to pursue its pending drug-trafficking charge (carrying a
    mandatory sentence of life without parole) if Milton somehow obtained a dismissal in
    the drive-by-shooting case.
    15
    Benedict recounted his vivid recollection of the meeting between him,
    Milton, and Reynolds later in his testimony, perhaps more succinctly:
    Mr. Reynolds drove it. I think Mr. Milton had a lot more respect
    for Mr. Reynolds, just because he’s a private attorney, and
    seemed to listen to him. Mr. Reynolds seemed to control the
    conversation. And he just discussed the case, discussed the fact
    that both cases were contingent upon a plea in each case, and that
    that was probably in his best interest, even though—despite him,
    Mr. Milton, maintaining his innocence in the [drive-by-shooting]
    case.
    R. vol. 2 at 280.
    18
    D.    Petition Denied
    The district court directed Milton’s habeas counsel and the State to submit
    proposed findings of fact and conclusions of law after the evidentiary hearing.
    Ultimately, the district court denied Milton’s petition for habeas relief. In doing so,
    the district court first reviewed the question we posed on remand: “whether petitioner
    received constitutionally ineffective assistance of appellate counsel as a result of
    counsel’s failure to pursue, during appellate proceedings, a possible claim of
    ineffective assistance of trial counsel for failure to communicate a 23-year plea offer”
    before the October 30, 2007 preliminary hearing. R. vol. 1 at 1155. For clarity, we
    will refer to this particular habeas claim as Milton’s “Original Claim.”
    The district court denied Milton’s Original Claim because, as the evidentiary
    hearing revealed, McGoldrick considered offering Milton the 23/23 Deal, but
    McGoldrick never did. In view of this, the district court concluded that Milton’s
    ineffective-assistance-of-appellate-counsel claim failed for lack of prejudice.
    Although that ordinarily would have ended the matter, the district court further
    addressed two brand-new habeas claims Milton fashioned from testimony at the
    evidentiary hearing. First, the district court turned to what we will term Milton’s
    “New Claim”: Reynolds was ineffective for “blatantly fail[ing] to communicate the
    complete terms of the State’s offer.” 
    Id. at 1167.
    More specifically, Milton argued
    that Reynolds had failed to communicate McGoldrick’s “warning” that McGoldrick
    would continue to pursue the pending drug-trafficking charge (again, carrying a
    mandatory sentence of life without parole) if Milton somehow obtained a dismissal in
    19
    the drive-by-shooting case. Second, the district court defined what we will term
    Milton’s “Other New Claim”: After the preliminary hearing but before trial, Michael
    Arnett, Milton’s new public defender in the drug-trafficking case, “failed to attempt
    any negotiation on Mr. Milton’s behalf,” “[denying Milton] the opportunity to
    resolve his exposure to punishment for terms of years significantly less than” life
    without parole. 
    Id. At the
    outset, the district court held as a matter of law that Milton had failed to
    exhaust his new claims in the state court. The district court noted that this procedural
    basis alone was sufficient to dismiss Milton’s new claims. But the district court also
    addressed the merits of both new claims, ultimately concluding that each lacked
    merit. The district court denied Milton’s petition for habeas relief and later declined
    to grant a COA.
    Milton now petitions this court for a COA. We address all of Milton’s claims
    below, both old and new.
    II.    DISCUSSION
    Before Milton can appeal to this court, we must grant him a COA. 28 U.S.C.
    § 2253(c)(1)(A). We may grant a COA only if the petitioner makes a “substantial
    showing of the denial of a constitutional right.” 
    Id. § 2253(c)(2).
    This requires a
    “showing that reasonable jurists could debate whether (or, for that matter, agree that)
    the petition should have been resolved in a different manner or that the issues
    presented were adequate to deserve encouragement to proceed further.” Slack v.
    McDaniel, 
    529 U.S. 473
    , 484 (2000) (quotation marks omitted). To obtain a COA
    20
    after a district court has rejected a petitioner’s constitutional claims on the merits, the
    “petitioner must demonstrate that reasonable jurists would find the district court’s
    assessment of the [petitioner’s] constitutional claims debatable or wrong” to obtain a
    COA. 
    Id. In requesting
    a COA, Milton has not reasserted his true Original Claim as
    such. The evidence defeated his claim that his trial counsel had failed to convey a 23-
    year offer (because no such offer was ever made). Instead, Milton now tries to stretch
    the canopy of his Original Claim to cover one of his new claims. Even though Milton
    has abandoned his true Original Claim, we still find it prudent to address the Original
    Claim to show that Milton is wrong that his new claims are mere amplifications of
    his Original Claim.
    A.     The Original Claim
    We do not grant Milton a COA with respect to his Original Claim because
    Milton does not ask for one. Instead, Milton has wisely abandoned this claim in his
    current request.
    The evidentiary hearing served its purpose. The testimony at the hearing made
    sense of the conflicting evidence noted in Milton. The hearing established, and
    Milton does not contest, that McGoldrick never communicated the 23/23 Deal to
    either Reynolds or Benedict because the 23/23 Deal existed only in Benedict’s mind
    and notes. Obviously, trial counsel could not be ineffective for failing to convey to
    Milton an offer that the prosecutor never made. In turn, Milton suffered no Strickland
    prejudice for his appellate counsel’s failure to raise what turned out to be a losing
    21
    issue. Our de novo review of Milton’s original ineffective-assistance-of-appellate-
    counsel claim, which began with Milton, is now complete.
    B.    The New Claims
    Despite fulfilling the goal of our remand, we must address what the district
    court termed Milton’s “new claims” to the extent Milton pursues them in his current
    request for a COA.16
    1.     Amplification or Alteration?
    Milton argues that his request for a COA does not abandon his Original Claim
    but includes evidence that merely “clarif[ies] or amplif[ies] the claim he made in his
    original petition for relief.”17 Pet’r’s Request at 30. Milton essentially attempts to
    recast his Original Claim in broad language that would encompass both his Original
    Claim and New Claim. Instead of referencing the narrow language of his habeas
    petition, for example, which explicitly references Reynolds’s failure to communicate
    a 23-year deal, Milton argues in his request that “[h]is theory remains unchanged:
    16
    We note that the district court concluded that Milton had actually crafted
    two new claims from evidence at the hearing. We do not address the Other New
    Claim, however, because Milton has abandoned this claim in his current request for a
    COA. In his request, Milton did not even reference the factual predicate for the Other
    New Claim—that Arnett was ineffective for failing to negotiate a plea deal after the
    preliminary hearing. We note, though, that the Other New Claim is distinct from his
    Original Claim, which primarily concerned the pre-preliminary-hearing conduct of
    Milton’s counsel. Although both claims involve counsel’s ineffectiveness, that hardly
    makes them the same claim.
    17
    Milton argues that we must construe his pro se habeas petition liberally and
    that his original petition reflected what Milton knew at the time. We agree that
    Milton’s pro se petition should be construed liberally, but “we will not rewrite a
    petition to include claims that were never presented.” Parker v. Champion, 
    148 F.3d 1219
    , 1222 (10th Cir. 1998).
    22
    because of information withheld by his lawyer, Milton forwent a favorable plea offer.
    That’s what he alleged in his original petition and that’s what he alleges here.” 
    Id. at 31.
    We reject Milton’s attempt to cast his habeas petition in a more favorable light.
    Although Milton cites authority one would normally cite to amend a habeas
    petition, Milton simultaneously argues that his claim remains unchanged (i.e.,
    unamended). 
    Id. at 29–30
    (citing Fed. R. Civ. P. 15(c)(2); Mayle v. Felix, 
    545 U.S. 644
    , 650 (2005)). He argues that he has always claimed that “one of his trial lawyers
    failed to inform him of a plea offer made by the prosecutor before the October 30
    preliminary hearing.” 
    Id. at 30.
    We disagree that that is what he has always claimed,
    noting that the New Claim has a dramatically different factual predicate: that
    Reynolds failed to communicate McGoldrick’s “warning” to continue prosecuting the
    pending drug-trafficking charge if Milton somehow obtained a dismissal in the drive-
    by-shooting case. Although this claim and the Original Claim both allege ineffective
    assistance of counsel, they are separate claims. Milton cannot allege an ineffective-
    assistance claim and then usher in anything fitting under that broad category as the
    same claim. Counsel can perform ineffectively in myriad ways. See Hammon v.
    Ward, 
    466 F.3d 919
    , 926 n.8 (10th Cir. 2006) (considering one ineffective-
    assistance-of-appellate-counsel claim but refusing to consider another such claim
    because the petitioner “did not raise [the latter] claim in his § 2254 habeas petition,
    and we therefore will not consider it on appeal”). Further, we note that Milton’s COA
    request has abandoned his original argument that his appellate counsel was
    ineffective. Instead, he now argues that Reynolds, his trial counsel, was ineffective.
    23
    We fail to see how a claim based on trial counsel’s ineffectiveness merely amplifies a
    claim based on appellate counsel’s ineffectiveness. To the extent Milton is asking us
    to consider his habeas petition as amended, we note that Milton has never sought to
    amend his habeas petition, even after the evidentiary hearing, and we cannot allow
    him to do so now.18 Milton’s New Claim is indeed new.
    2.     Presentation and Exhaustion
    Generally, Milton must have presented his New Claim in his written habeas
    petition for federal courts to consider it. See Rules Governing Section 2254 Cases,
    Rule 2(c), 28 U.S.C. foll. § 2254; Adams v. Armontrout, 
    897 F.2d 332
    , 334 (8th Cir.
    1990) (“We hold that in order to substantially comply with the Section 2254 Rule
    2(c), a petitioner must state specific, particularized facts which entitle him or her to
    habeas corpus relief for each ground specified. These facts must consist of sufficient
    detail to enable the court to determine, from the face of the petition alone, whether
    the petition merits further habeas corpus review.”). Milton must also have exhausted
    his New Claim in state court for federal courts to consider it on the merits. Cullen v.
    Pinholster, 
    563 U.S. 170
    , 181 (2011) (“Sections 2254(b) and (c) provide that a
    federal court may not grant [a habeas] application[] unless, with certain exceptions,
    the applicant has exhausted state remedies.”). Milton’s New Claim meets neither
    18
    In his request, Milton goes so far as to argue the following: “Now that
    Milton has [new pieces of evidence], he has inserted them and their meaning into the
    record and into his petition, as he is authorized by Rule 15(c), to clarify or amplify
    what has always been his position . . . .” Pet’r’s Request at 33 (emphasis added).
    24
    requirement. Milton’s New Claim appears nowhere in his habeas petition and he
    never presented the New Claim to state courts for review.
    Ordinarily in this situation, the habeas section of the Antiterrorism and
    Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254, dictates that we
    decline Milton’s request for a COA on his New Claim for failure to exhaust but leave
    open the possibility that Milton might be able to return to the Oklahoma state courts
    to try to present his New Claim. AEDPA’s structure and policy favors states having
    the first opportunity to resolve claims their prisoners make. See O’Sullivan v.
    Boerckel, 
    526 U.S. 838
    , 845 (1999) (“[T]he exhaustion doctrine is designed to give
    the state courts a full and fair opportunity to resolve federal constitutional claims
    before those claims are presented to the federal courts . . . .”). But Milton’s case is
    procedurally unusual for two reasons, both of which justify treating his New Claim
    differently.
    First, despite the New Claim not appearing in Milton’s habeas petition, the
    district court still chose to reject the New Claim on its merits. The district court did
    not reject Milton’s New Claim based solely on exhaustion or the claim’s failure to
    appear on the face of the petition. Second, Milton bases his New Claim on evidence
    newly revealed at the evidentiary hearing, although outside our narrow remand. With
    this procedural background, we choose to address the merits of the unexhausted New
    Claim in determining whether to grant Milton’s request for a COA. In doing so, we
    stress that new claims arising from this unusual procedural setting are not excused
    from Rule 2(c)’s petition requirements or the exhaustion requirement.
    25
    Ordinarily, to present his new claims on the merits, Milton would have to
    amend his habeas petition to add his new claims, 28 U.S.C. § 2242, or file a second
    or successive habeas application in accordance with § 2244, see Carter v. Bigelow,
    
    787 F.3d 1269
    , 1277–81 (10th Cir. 2015) (concluding that a habeas petitioner adding
    new claims rather than adding evidence in support of the “precise” claims in his
    habeas petition must follow the procedures in § 2244). But sending his New Claim
    back to the district court after the district court already addressed the New Claim on
    the merits would only unnecessarily belabor these proceedings.
    Similarly, we address Milton’s New Claim despite its being unexhausted
    because § 2254(b)(2) allows the district court to do so if the New Claim lacks merit.
    “An application for a writ of habeas corpus may be denied on the merits,
    notwithstanding the failure of the applicant to exhaust the remedies available in the
    courts of the State.” 28 U.S.C. § 2254(b)(2); see Moore v. Schoeman, 
    288 F.3d 1231
    ,
    1235 (10th Cir. 2002) (“[Under § 2254(b)(2),] a district court faced with a habeas
    petition containing unexhausted claims may either (1) dismiss the entire petition
    without prejudice in order to permit exhaustion of state remedies, or (2) deny the
    entire petition on the merits.”). In the interest of judicial economy, our court has
    often considered habeas claims on the merits despite a petitioner’s failure to exhaust.
    See Allen v. Mullin, 
    368 F.3d 1220
    , 1235 (10th Cir. 2004) (reviewing de novo an
    unexhausted claim and citing § 2254(b)(2)); Romero v. Furlong, 
    215 F.3d 1107
    , 1111
    (10th Cir. 2000) (“Before addressing Appellant’s ineffective assistance arguments,
    we note that this case presents a number of complex issues concerning the
    26
    applicability of Colorado’s procedural bar to these claims. We need not and do not
    address these issues, however, because the case may be more easily and succinctly
    affirmed on the merits.”).
    We also note that we may address Milton’s New Claim because, “as the
    Supreme Court has pointed out, the doctrine[] of exhaustion . . . raise[s] only federal-
    state comity concerns and [is] not a jurisdiction[al] limitation of the power of the
    court.” Cain v. Redman, 
    947 F.2d 817
    , 820 (6th Cir. 1991) (pre-AEDPA) (citing
    Granberry v. Greer, 
    481 U.S. 129
    , 131–36 (1987)); Strickland v. Thaler, 
    701 F.3d 171
    , 174 (5th Cir. 2012) (post-AEDPA) (“While a district court should dismiss an
    entire federal habeas application if the petitioner’s state remedies have not been
    exhausted as to all claims raised in the federal petition, because exhaustion is based
    on comity rather than jurisdiction, there is no absolute bar to federal consideration of
    unexhausted habeas applications.” (quotation marks and citation omitted)).
    3.     Substantive Analysis
    We note once more that because the district court denied Milton’s New Claim
    on the merits, we should only grant a COA for the New Claim if “reasonable jurists
    would find the district court’s assessment of the [petitioner’s] constitutional claims
    debatable or wrong.” 
    Slack, 529 U.S. at 484
    .
    To succeed on the merits of his New Claim under Strickland, Milton must
    show that: (1) appellate counsel “unreasonably failed to discover [a] nonfrivolous
    issue[] and to file a merits brief raising [it]”; and (2) prejudice. Smith v. Robbins, 
    528 U.S. 259
    , 285 (2000); see 
    Strickland, 466 U.S. at 694
    . In the context of a claim of
    27
    appellate-counsel ineffectiveness, a defendant can prove prejudice by showing “a
    reasonable probability that, but for his counsel’s unreasonable failure to” raise the
    nonfrivolous issue, “he would have prevailed on his appeal.” 
    Robbins, 528 U.S. at 285
    . Because we do not believe reasonable jurists would find the district court’s
    assessment of Milton’s New Claim debatable or wrong, we deny Milton’s request for
    a COA.
    Supporting his New Claim, Milton argues that the district court misunderstood
    the value of Milton’s knowing the prosecutor’s planned approach to plea bargaining
    in the drug-trafficking and drive-by-shooting cases. Specifically, Milton argues that,
    on the day of the preliminary hearing when the State offered the 20/20 Deal, “he was
    unaware of a vital fact: if the drive-by were indeed dismissed there would be no plea
    bargaining forthcoming on the drug case. But this Milton didn’t know, precisely
    because of his lawyer’s failure to communicate the full terms of the offer he was then
    pondering.” Pet’r’s Request at 39 (emphases in original). The district court found that
    this claim lacked merit on three grounds, but we address only one ground because it
    resolves Milton’s New Claim.
    Initially,   we   take   issue   with    Milton’s   argument   because   of   its
    mischaracterization of the “threatening warning” McGoldrick communicated to
    Reynolds. 
    Id. at 35.
    McGoldrick simply noted that he would “probably” refuse to
    reduce the drug-trafficking charge (leaving intact its mandatory life-without-parole
    sentence) if the drive-by-shooting case were dismissed. R. vol. 2 at 137. But Milton
    characterizes this “warning” in more fatalistic, certain terms: “if the drive-by were
    28
    indeed dismissed there would be no plea bargaining forthcoming on the drug case.”
    Pet’r’s Request at 39 (second emphasis added). McGoldrick’s position was not so
    certain, given McGoldrick’s still mulling a possible deal (the 23/23 Deal) long after
    the preliminary hearing.
    Moreover, the district court noted that even if Reynolds had communicated
    McGoldrick’s warning, “the evidence presented at the hearing thoroughly
    undermines any suggestion that petitioner would have gone for” any of the offered
    plea deals. R. vol. 1 at 1169. The district court further explained its reasoning:
    Without the warning, petitioner knew that he could take a 20-
    year, 85% deal on the drug case or stand trial and subject himself
    to the virtual certainty of a sentence of life without parole. With
    the warning, petitioner would have known, while he pondered a
    20-year, 85% deal in the drug case, that if the drive-by case were
    to be dismissed, he would still face a virtually certain sentence of
    life without parole in the drug case.
    
    Id. (emphases in
    original). We agree with the district court’s assessment.19
    Milton argues that the district court should have added a third alternative:
    Without the warning, Milton believed he could “reject the offers and defeat the drive-
    by at the preliminary hearing, thereby reducing the charges he faced from two to
    one . . . .” Pet’r’s Request at 38. Under this scenario, Milton argues that he “would
    [have] be[en] free of the drive-by case, and he could then negotiate a discrete and
    19
    Milton correctly states that the district court appears to have mistaken the
    drug-trafficking case for the drive-by-shooting case by referring to the drug-
    trafficking charge as an 85% crime. But this mistake does not defeat the district
    court’s sound logic in rejecting Milton’s New Claim.
    29
    singular plea bargain on the drug case.” 
    Id. Milton couched
    this argument in the
    appropriate legal standard:
    In the absence of complete information, Milton took his chances.
    He rejected the package plea hoping to drive a wedge between
    two cases linked by fiat of the prosecutor, believing he could
    defeat one on the evidence and negotiate a settlement of the
    other. He lost his gamble. The drive-by survived the preliminary
    hearing. The question, though, is this: would he have taken that
    chance with full information before the hearing? The answer is
    probably not. To be faithful to the formal legal standard, it is
    more accurate to say there is a reasonable probability Milton
    would have eschewed the gamble and instead accepted the 20/20
    plea bargain, if only he had full information.
    
    Id. at 39
    (emphasis in original). But what Milton fails to argue is why he would
    reasonably believe that the State would reduce his drug-trafficking charge to one not
    carrying a mandatory life-without-parole sentence because Milton somehow obtained
    dismissal in the drive-by-shooting case. That defies common sense. In addition,
    Milton fails to explain why he would have changed his course had he heard of the
    “warning” about continuing to prosecute the pending drug-trafficking charge (with its
    mandatory sentence of life without parole) when he had already rejected the 25/20
    Deal or the 20/20 Deal.20
    20
    The district court made no explicit finding of fact regarding which deal
    McGoldrick ultimately offered Milton at the preliminary hearing. Rather, the court
    noted the conflicting testimony we outlined above and concluded:
    It does not appear that the question of whether the offer in the
    drug case was a 20-year offer or a 25-year offer is of any
    moment, because the only deal that would have ever been made
    would have been a package deal including a 20-year sentence in
    the drive-by case, which would have been an 85% sentence.
    Thus, the difference being considered for parole in the drug case,
    30
    Reynolds told Milton that the existing plea deal was a package offer—he
    would receive no stand-alone offer in either case. See R. vol. 2 at 280 (“Mr. Reynolds
    seemed to control the conversation. And he just discussed the case, discussed the fact
    that both cases were contingent upon a plea in each case, and that that was probably
    in his best interest, even though—despite him, Mr. Milton, maintaining his innocence
    in the [drive-by-shooting] case.”). To any reasonable jurist, Milton’s poor “gamble”
    was the cause of his current predicament, not the lack of any additional “warning”
    from Reynolds. Milton knew, based on his conversation with Reynolds on the day of
    the preliminary hearing, that any existing offer would expire if Milton proceeded
    with the imminent preliminary hearing, let alone if Milton continued to seek
    dismissal of the drive-by-shooting case. Even so, Milton rejected the offer and opted
    for a preliminary hearing on a pending charge that provided for and ultimately
    resulted in his life-without-parole sentence.
    Even after Reynolds told Milton that any existing deal would expire if he
    chose to proceed with a preliminary hearing, Milton apparently hoped against all
    odds that McGoldrick would inexplicably reduce Milton’s pending drug-trafficking
    charge if Milton succeeded in getting his drive-by-shooting case dismissed. But
    after serving one third of a 20-year sentence or one third of a 25-
    year sentence is of no consequence because petitioner would, in
    any event, have been required to serve 85% of a 20-year sentence
    in the drive-by case.
    R. vol. 1 at 1161 n.2. Milton abandons his position that he never heard about the
    25/20 Deal or the 20/20 Deal in his request for a COA.
    31
    Milton knew that McGoldrick was not obliged to make any offer and was not
    inclined to make an offer on just one of Milton’s cases.
    Because we do not believe reasonable jurists could debate that Milton’s New
    Claim lacks merit based on Milton’s argument above, we deny Milton’s related
    request for a COA.
    III.   CONCLUSION
    New evidence discovered at the federal evidentiary hearing has assisted our de
    novo review of Milton’s ineffective-assistance claims, and we conclude that all of
    them lack merit. Accordingly, we deny Milton’s request for a COA on all bases
    presented.
    32