Cortez Miller v. Dennis M. Straub, Warden, Kermit Eldridge Haynes v. Luella Burke, Warden, Saginaw Correctional Facility , 299 F.3d 570 ( 2002 )

BRIGHT, J., delivered the opinion of the court. GILMAN, J. (pp. 583-585), delivered a separate concurring opinion. BOGGS, J. (pp. 585-588), delivered a separate dissenting opinion.

OPINION

BRIGHT, Circuit Judge.

The wardens of two Michigan state correctional institutions appeal a federal district courts conditional grant of habeas corpus to prisoners Cortez Miller and Hermit Haynes on the ground of ineffective assistance of counsel. Haynes and Miller are currently serving life sentences without parole after pleading guilty to first degree murder.

In 1990, Miller and Haynes were fifteen and sixteen years old, respectively. Each, on the advice of his own defense counsel, pled guilty in Michigan state court to first degree murder. Their attorneys believed it likely that the trial court would impose juvenile sentences. The trial court did sentence them as juveniles. In each case, the prosecution appealed and the Michigan Court of Appeals reversed. Miller and Haynes each then received the only available adult sentence under Michigan law: life in prison without possibility of parole. Neither Miller’s nor Haynes’ trial counsel considered or advised their respective clients that the prosecutor could appeal the imposition of a juvenile sentence.

Miller and Haynes petitioned for writs of habeas corpus, and the federal district court¹ concluded that the failure of their defense attorneys to inform them of the prosecutor’s right to appeal, particularly in light of their youth at the time of the pleas, constituted ineffective assistance of counsel. The court further concluded that a contrary determination on the facts and the law by the Michigan Court of Appeals constituted an unreasonable application of clearly established federal law as determined by the United States Supreme Court in Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); and Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accordingly, the court separately granted Miller’s and Haynes’ petitions for writs of habeas corpus on the ground of ineffective assistance of counsel.² The wardens appeal. After a careful review of the records in the two cases, we AFFIRM the district court.

I. BACKGROUND

Kermit Haynes and Cortez Miller are two of six youths³ charged by the state of Michigan with the 1990 murder of Benjamin Gravel. The state charged Haynes and Miller each with first degree felony murder, assault with intent to rob while armed, and possession of a firearm during commission of a felony.

A. Miller’s Plea

On March 23, 1990, Miller pled guilty before Chief Judge Roberson of the Recorder’s Court for the City of Detroit. He was fifteen years old at the time. At the plea hearing, the court questioned Miller as to whether he understood that if he pled guilty, his “only hope” to avoid mandatory life imprisonment lay in convincing the court to treat him as a juvenile. Miller answered that he understood. Miller’s mother, who was present at the plea hearing, stated that Miller’s plea had been discussed with her and that she understood that the judge might sentence her son as a juvenile or as an adult.⁴ The prosecutor advised the court that his office would request that the court sentence Miller as an adult.

The court then questioned Miller. Miller affirmed that he was making his plea freely, understanding^, and voluntarily. He acknowledged an understanding of the various trial rights he was foregoing by pleading guilty. Miller affirmed his understanding that first degree murder was punishable by a maximum sentence of life imprisonment without parole. The court described the situation to Miller: “the only hope that you [have] in this plea is if I decide to treat you as a juvenile for the purpose of disposition. You heard [the prosecutor] say that they are going to want to hold a lengthy disposition hearing, do you understand that?” Miller stated that he understood, and specifically acknowledged that he was “taking that chance.”

The court then questioned Miller briefly as to the factual basis for his plea. Miller stated that he was part of a group that decided to steal a car. Sometime before the crime he gave Haynes a gun knowing that Haynes planned to use it to steal a car. Miller acknowledged knowing the inherent danger to life when a car is taken at gunpoint.

Over the course of the next year, Chief Judge Roberson held several hearings on the disposition of Miller’s sentence. On February 22, 1991, Miller’s counsel made closing arguments to the court at the final hearing in Miller’s case. At that hearing, the prosecutor announced that if the court sentenced Miller as a juvenile the prosecution would appeal.⁵ On June 17, 1991, the court sentenced Miller to confinement in a juvenile institution until age twenty-one.

B. Haynes’ Plea

On March 27, 1990, Haynes pled guilty to all charges against him, also before Chief Judge Roberson. He was sixteen years old at the time. At the plea hearing, his counsel, Wilfred Rice, stated that he had discussed the matter with Haynes and his family and that Haynes, with the acquiescence of his father, wanted to enter a plea of guilty as charged. Rice stated that Haynes understood that the court could sentence him as an adult or as a juvenile, and affirmed that Haynes understood that the prosecutor would attempt to convince Chief Judge Roberson that Haynes should be sentenced as an adult.

The court questioned Haynes directly about whether he understood that, if he pled guilty, “the only option you have in this case, the only escape you have in terms of mandatory life, [is] if the prosecution can’t convince me to treat you as an adult.” Haynes stated that he understood.

Haynes stated that he had talked to his parents about his guilty plea. He affirmed that he was not being coerced into his plea and that he made his plea freely, understandingly, and voluntarily. He also affirmed an awareness of the various trial rights he was foregoing by pleading guilty.

The court then questioned Haynes briefly about the factual basis for his plea. Haynes stated that other boys in the group pulled a tree branch into the street to force cars to stop. When the victim, Gravel, stopped his car in front of the tree branch, Haynes ran out to the car intending to steal it. He was carrying a handgun Miller had given him. As Haynes approached the car, it pulled away and he fired at the car. Haynes specifically admitted that he shot at the car as part of his attempt to steal it.

Over the course of the next year, Chief Judge Roberson held several hearings on the disposition of Haynes’ sentence. On August 28, 1991, the court sentenced Haynes to confinement in a juvenile institution until age twenty-one.

C. Post-plea Events

After Chief Judge Roberson ordered that Miller and Haynes be sentenced as juveniles, the prosecutor appealed each sentence.⁶ The state court of appeals reversed on each defendant and remanded for imposition of the adult sentence: mandatory life imprisonment without parole on the first degree murder charge. People v. Miller, 199 Mich.App. 609, 503 N.W.2d 89 (1993); People n Haynes, 199 Mich.App. 593, 502 N.W.2d 758 (1993). The state supreme court denied the defendants’ applications for leave to appeal those results.

On remand before Chief Judge Roberson, the defendants moved to withdraw their guilty pleas and for evidentiary hearings on those motions. Haynes and Miller each alleged that their guilty pleas had been involuntary due to ineffective assistance of trial counsel. They asserted, among other things, that their attorneys’ failure to inform them that the prosecutor could appeal the imposition of a juvenile sentence constituted ineffective assistance of counsel. The court granted the motions for evidentiary hearings.

The prosecutor applied to the state court of appeals for leave to file an interlocutory appeal of the orders granting evi-dentiary hearings. The Michigan Court of Appeals denied the application. The Michigan Supreme Court, in lieu of granting leave to appeal, vacated the trial court’s orders granting the evidentiary hearings and directed that Haynes and Miller be sentenced “forthwith” as adults “without prejudice to subsequent consideration of the motion[s] to withdraw the plea[s] of guilty.” People v. Miller, 527 N.W.2d 513 (Mich.1994); People v. Haynes, 447 Mich. 1021, 527 N.W.2d 512-13 (1994).

On December 19, 1994, Chief Judge Roberson imposed sentences of life imprisonment without possibility of parole. The court subsequently held separate eviden-tiary hearings on Miller’s and Haynes’ motions to withdraw their guilty pleas.

Haynes was the only witness at his evi-dentiary hearing.⁷ Haynes testified that he talked with his counsel, Wilfred Rice, twice in the three weeks before his guilty plea. Each visit lasted less than thirty minutes and each centered on Rice’s advice that Haynes plead guilty before Chief Judge Roberson. Haynes testified that he was hesitant to plead guilty, but that Rice repeatedly told him that it was in his interest to plead before Chief Judge Roberson, where he would “have great chances of being sentenced as a juvenile.”

Haynes testified that Rice never told him that, even if Chief Judge Roberson sentenced him as a juvenile, the prosecutor could still appeal that sentence and an appellate court could impose an adult sentence of life without parole. Haynes stated that he would not have pled guilty had he known this.

Q So what is your understanding if you plead guilty and you made it through the sentencing hearing and you could convince the judge to sentence you as a juvenile, did you think there was anything after that?

[Haynes] No. Besides the fact that I’d be going to [a juvenile facility].

Q Did you have any idea that the pro-section [sic] had any other option besides that hearing that they had in front of the Judge?

[Haynes] No.

Haynes J.A. at 176-77.

Haynes also stated that he was innocent of first degree murder because he did not intend to harm anyone. Contrary to his testimony at the original plea hearing, Haynes denied shooting at the car. He claimed that at the plea hearing he was “under advisement” of his attorney to say that he shot at the car.

We turn to Miller’s further proceedings. At the evidentiary hearing on Miller’s motion to withdraw his guilty plea, Miller’s trial counsel, Charles Lusby, testified. He stated that he only did trial work and never handled appeals. Lusby testified that he considered abandonment to be a possible defense for Miller because when Miller gave the gun to Haynes he was deferring to the older boys in the group. He testified that Miller “practically totally reified]” on his advice, and that he convinced Miller’s parents, who also relied on him, that pleading guilty was in Miller’s best interest.

Lusby stated that Miller was “reluctant” to plead guilty, but that he “prevailed upon him,” by telling him he likely would be sentenced as a juvenile. Lusby testified that, based upon his familiarity with the juvenile sentencing process, he believed Chief Judge Roberson would sentence Miller as a juvenile. Lusby considered his advice that Miller plead guilty to first degree murder to be “extraordinary.”

Lusby admitted that his considerations in formulating this advice did not include any factor beyond what the trial court would do.

Q In formulating your advice to Mr. Miller, did you take into account the fact [that] the prosecutor had since I believe 1988 the right to appeal a sentence?

[Lusby] No, I did not.

Q Did you stop to consider that, did it occur to you?

[Lusby] That didn’t occur to me at all.

Q Did you discuss that possible risk with Mr. Miller?

[Lusby] I discussed a lot of things with him, but that was not one of them. It didn’t occur to me that the prosecutor would do it, nor that the appellate court would reverse that decision.

Miller J.A. at 254-55.

Lusby also testified that he recalled the prosecutor stating in his closing argument at the sentencing hearing that he would appeal if Miller received a juvenile sentence. Lusby explained that Miller “was struck” by the prosecutor’s statement, but “I think I told him I didn’t think [the prosecutor] would be successful.”

Miller also testified. He stated that when Lusby advised him to plead guilty, Lusby did not tell him that the prosecutor could appeal and that the court of appeals had the authority to overturn Chief Judge Roberson’s decision. Miller stated that, had he known, he would not have pled guilty.

Regarding the factual basis for his plea, Miller stated that the version of the facts he gave at the plea hearing was inaccurate: “I was speaking upon the elements that my lawyer told me to speak on as far as first degree murder.” Miller stated that when Gravel was killed he was seventy-five yards from the car and running away. Contrary to the statements he made at his plea hearing, Miller stated that there had been no plan to take a car and that he did not know what Haynes was planning to do when he gave him the gun. He did not intend to take part in a robbery.

In October, 1995, the trial court determined that Miller’s and Haynes’ guilty pleas had not been voluntary, knowing, and intelligent due to ineffectiveness of trial counsel. The court granted each his motion to withdraw his guilty plea. The Michigan Court of Appeals granted leave to the prosecutor to appeal those orders.

In a consolidated decision addressing Miller’s and Haynes’ cases along with another similarly situated appellant, Dash-awn Lyons,⁸ the appeals court reversed the trial court. People v. Haynes (After Remand), 221 Mich.App.551, 562 N.W.2d 241 (1997). The court determined that the record showed Miller and Haynes were aware at the time they pled guilty that they might be sentenced as adults to mandatory terms of life imprisonment without possibility of parole. In addition, Miller knew from the prosecutor’s closing argument at his final sentencing disposition hearing that the prosecution could appeal if Miller received a juvenile sentence from the trial court. Despite the knowledge each had, Miller and Haynes pled guilty and did not move to withdraw their pleas until after the conclusion of the appeal regarding their sentences. Therefore, the court concluded, Miller and Haynes understood the consequences of their pleas, and the pleas were knowingly, understandingly, and voluntarily made. Haynes (After Remand), 562 N.W.2d at 246, 248. The Michigan Supreme Court denied Miller and Haynes leave to appeal.

Miller and Haynes petitioned the federal district court for writs of habeas corpus. The court granted the writs, ordering that Miller and Haynes be released unless they were given trials. The district court concluded that Miller’s and Haynes’ trial counsel were ineffective in failing to advise them of the prosecutor’s right to appeal.⁹ As a result, Miller and Haynes had not pled guilty voluntarily or knowingly. The wardens appealed to this court.

II. DISCUSSION

A. Habeas Corpus Review

Provisions of the Antiterrorism and Effective Death Penalty Act (AEDPA) codified at 28 U.S.C. § 2254(d) govern our review of the state court decisions in this habeas corpus case.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United Statesf.]

28 U.S.C. § 2254(d)(1).

The federal district court considered Miller’s and Haynes’ petitions for habeas corpus under the “unreasonable applieation” prong of this statute. None of the parties argue that the federal district court should have inquired whether the Michigan Court of Appeals decision was “contrary to” clearly established federal law. We proceed, therefore, under the “unreasonable application” prong of 28 U.S.C. § 2254(d)(1).

In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000), the Supreme Court elucidated the terms of 28 U.S.C. § 2254(d)(1). First, the Court explained that “clearly established Federal law, as determined by the Supreme Court” refers to the Court’s holdings, as opposed to dicta, at the time of the relevant state court decision. Id. at 412, 120 S.Ct. 1495. Second, the Court explained that a state court decision unreasonably applies Supreme Court precedent by either: (1) identifying the correct governing legal rule from Supreme Court precedent but unreasonably applying it to the facts; or (2) unreasonably extending a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refusing to extend that principle to a new context where it should apply. Id. at 407, 120 S.Ct. 1495. Finally, the Court declared that the application of law must be objectively unreasonable, id. at 409, 120 S.Ct. 1495, and not merely incorrect or erroneous.¹⁰ Id. at 411, 120 S.Ct. 1495.

B. Ineffective Assistance of Counsel

In Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985) and Strickland, v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Supreme Court set out the law applicable to an ineffective assistance of counsel claim such as that made by Miller and Haynes. Both Hill and Strickland were clearly established federal law as determined by the Supreme Court at the time of the final Michigan Court of Appeals decision in 1997. See Williams, 529 U.S. at 391, 406, 120 S.Ct. 1495 (referring to Strickland as “clearly established precedent” at the time of a Virginia state court’s 1997 decision).

Under Strickland, a defendant claiming ineffective assistance of counsel must show both deficient performance by counsel and prejudice to the defendant resulting from that deficient performance. 466 U.S. at 687, 104 S.Ct. 2052. To be deficient, counsel’s performance must fall below an objective standard of reasonableness. Id. at 687-88, 104 S.Ct. 2052; Hill, 474 U.S. at 58-59, 106 S.Ct. 366. In Hill, which applied Strickland to the guilty plea context, the Court explained that a defendant shows prejudice by demonstrating “a reasonable probability that, but for counsel’s errors, [the defendant] would not have pleaded guilty and would have insisted on going to trial.” Id. at 59, 106 S.Ct. 366.

Although the Michigan Court of Appeals did not mention either Hill or Strickland by name, it did apply the law of those cases.¹¹ Thus, we must examine whether that court applied Hill and Strickland unreasonably.

We emphasize that Hill and Strickland state the relevant law in this case. Relying on a string of circuit court cases, the wardens argue that defense counsels’ failure to inform Miller and Haynes of the prosecution’s right to appeal the imposition of a juvenile sentence does not comprise ineffective assistance because the prosecutor’s right of appeal represents a collateral, as opposed to a direct, consequence of the plea. We reject this argument on two grounds.

First, the wardens’ reliance on circuit court cases is improper. The AEDPA prohibits use of lower court decisions in determining whether the state court deeision is contrary to, or is an unreasonable application of, clearly established federal law. Williams, 529 U.S. at 412, 120 S.Ct. 1495 (defining “clearly established law as determined by the Supreme Court” to mean holdings of Supreme Court decisions); Harris, 212 F.3d at 944 (holding district court erred in “rely[ing] on authority other than that of the Supreme Court of the United States in its analysis under § 2254(d)”).

Second, the wardens’ argument is incompatible with Supreme Court case law. The Court does not use a direct/collateral consequence categorization scheme to decide ineffective assistance of counsel claims. Indeed, in Hill, the Supreme Court reviewed an Eighth Circuit decision holding that parole eligibility was not a “direct consequence” of a guilty plea. See Hill v. Lockhart, 731 F.2d 568, 570-73 (8th Cir.1984). The Court noted this holding, but eschewed any such characterization in favor of directly applying Strickland to the plea context. Hill, 474 U.S. at 55, 57-60, 106 S.Ct. 366. As the Court stated in Williams: “the Strickland test provides sufficient guidance for resolving virtually all ineffective-assistance-of-counsel claims.” 529 U.S. at 391, 120 S.Ct. 1495.

C. Analysis

The federal district court concluded that the Michigan Court of Appeals decision was an unreasonable application of Hill and Strickland. We review de novo a district court’s legal conclusions in a habeas corpus proceeding. Miller v. Francis, 269 F.3d 609, 613 (6th Cir.2001). Where, as here, the district court’s factual findings are based on a transcript from the state court proceedings and the district court makes no credibility determination, we also review those findings de novo. Id. We must determine whether it is an unreasonable application of Hill and Strickland to hold either: (1) that the petitioners’ trial counsel provided them with objectively reasonable assistance; or (2) that even if the petitioners had been reasonably advised, they still would have pled guilty.

1. Performance of Counsel

The proper measure of attorney performance is whether counsel’s assistance was reasonable “under prevailing professional norms” and “considering all the circumstances.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052. We make a case-by-case examination of the evidence, Williams, 529 U.S. at 391, 120 S.Ct. 1495, and “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

The professional norms that guide us rest upon defense counsel’s fundamental duties “to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process” and “to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution.” Id. at 688, 104 S.Ct. 2052.

The federal district court articulated the circumstances relevant to the performance inquiry in this case:

[T]rial counsel’s performance was deficient within the meaning of the Strickland standard where he failed to advise petitioner that the prosecutor could appeal a juvenile sentence to a Michigan appellate court with the very real possibility that a higher court would order petitioner resentenced as an adult. Because of petitioner’s young age, petitioner was particularly reliant on his attorney’s advice to plead guilty to the offenses in this case. In light of what amounted to extraordinary advice by counsel that petitioner plead guilty to an offense which carried a mandatory sentence of life imprisonment without parole, counsel had a duty both to consider and to advise petitioner of the prosecutor’s right to appeal any sentence to the Michigan appellate courts, with the possibility that petitioner’s juvenile sentence would be overturned on appeal and he would then have to serve a nonparolable life sentence.

Haynes v. Burke, 115 F.Supp.2d 813, 819 (E.D.Mich.2000).¹²

Miller’s trial counsel, Lusby, brought to bear on this case his knowledge of the juvenile sentencing process and Chief Judge Roberson’s sentencing practices. There is no doubt that in this regard Miller initially benefitted from Lusby’s advice. Furthermore, Lusby adequately informed Miller regarding the risk related to Chief Judge Roberson’s sentencing determination. Miller understood that if he pled guilty Chief Judge Roberson could opt to impose either a severe adult sentence of life imprisonment or a lenient juvenile sentence.

However, Lusby acted incompetently in failing to consider the likelihood that the prosecutor would exercise his right to appeal the district court’s imposition of a juvenile sentence. Any juvenile sentence imposed on Miller would be less than six years in a juvenile facility. Given such a lenient sentence for first degree murder, it was unreasonable for Lusby not to have considered that the prosecutor could appeal and the juvenile sentence could be reversed. Yet Lusby did not factor this scenario into his advice to Miller that pleading guilty was in Miller’s best interest.¹³ Thus, Miller did not know that the prosecutor could appeal and that the juvenile sentence could be reversed, and, if so, Miller would serve a life sentence without possibility of parole.

Lusby should have considered these possibilities, informed Miller about them, and incorporated them into his risk assessment when he advised Miller about pleading guilty. He failed to do so. Rather, he advised Miller to plead guilty based solely upon his assessment of the relative risks in going to trial versus pleading guilty before Chief Judge Roberson. As a result, Lusby misinformed Miller regarding the likelihood he would receive an adult sentence. Miller was not fully apprised of the risks he faced.

The duty of defense counsel to consult is paramount when a client has to decide whether or not to waive a constitutional right, such as the right to trial. Because the decision whether or not to plead guilty ultimately rests with the client, see Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983) (“the accused has the ultimate authority to make certain fundamental’ decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal”); Wainwright v. Sykes, 433 U.S. 72, 93 n. 1, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Burger, C.J., concurring) (“[o]nly such basic decisions as whether to plead guilty, waive a jury, or testify in one’s own behalf are ultimately for the accused to make”), counsel must ensure that the client’s decision is as informed as possible. Failing even to consider, let alone notify the client of, a factor that could negate the entire benefit of the guilty plea is not within the range of professional norms.¹⁴

Miller’s age and his heavy reliance on Lusby, a reliance Lusby acknowledged was “practically total[ ],” enhanced Lus-by’s duty to make certain that Miller understood all the risks associated with his guilty plea. Miller was fifteen years old and a year behind in school. His parents, according to Lusby, were themselves reliant on Lusby for advice. This case epitomizes the criminal defendant’s need for what the Supreme Court has called the “guiding hand of counsel at every step in the proceeding against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932).

We conclude that Miller’s trial counsel was incompetent. It is an objectively unreasonable application of Hill and Strickland for the Michigan Court of Appeals to hold otherwise.

Haynes testified that his trial counsel, Rice, similarly failed to inform him of the prosecutor’s right to appeal the trial court’s imposition of a juvenile sentence. Due to Rice’s death, Haynes was unable to offer any testimony which might corroborate this assertion. The Michigan Court of Appeals assumed that Haynes’ defense counsel did not inform him that the prosecutor could appeal the trial court’s sentencing decision. Haynes (After Remand), 562 N.W.2d at 245 n. 1. The federal district court accepted that assumption. Haynes v. Burke, 115 F.Supp.2d at 818. In her appeal to this court, Warden Burke does not challenge the fact that Rice did not inform Haynes of the prosecutor’s right to appeal. There being nothing in the record to contradict the Michigan court’s assumption, we adopt it.

With this assumption made, the reasoning from Miller’s case applies. Like Miller, Haynes should have been fully apprised of the risks he faced, but was not. We conclude that Haynes’ trial counsel was incompetent and that it is an objectively unreasonable application of Hill and Strickland for the Michigan Court of Appeals to hold otherwise.

2. Prejudice

To determine whether the petitioners were prejudiced by their attorneys’ deficient performance, we ask whether there is a reasonable probability that, had they been advised of the prosecutor’s right of appeal, they would have pled not guilty. A “reasonable probability” is a probability sufficient to undermine confidence in the outcome; it is less than a preponderance of the evidence. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

Both Miller and Haynes testified similarly at the evidentiary hearings on their plea withdrawal motions that each was initially hesitant to plead guilty, and that each would have pled not guilty had each known the prosecutor could appeal. This testimony, though self-serving, may be enough by itself to satisfy the prejudice prong under the circumstances here. See Magana v. Hofbauer, 263 F.3d 542, 547 n. 1 (6th Cir.2001) (noting that, unlike the Seventh and Second Circuits, this Circuit has not explicitly adopted a requirement that in order to establish prejudice a defendant must come forward with objective evidence in addition to his post-conviction claim that he would have changed his mind about pleading guilty). The circumstances of these cases do not require that we resolve this issue today.

The wardens argue that Miller and Haynes could not have been prejudiced by any deficiency on the part of their trial counsel because they acknowledged at their March 1990 plea hearings that they could be sentenced to life imprisonment without parole.¹⁵ According to the wardens, “the fact that [Miller and Haynes] might not have been told that the prosecution could appeal [the juvenile] sentence [they were] never assured of receiving in the first place should be of no consequence.”

The wardens maintain that if a defendant is aware of the maximum possible sentence he cannot be prejudiced by his counsel’s failure to inform him of the prosecutor’s right to appeal. We decline to adopt the wardens’ argument. An awareness of the sentencing range available to the trial judge is not the same as an informed understanding that a sentencing judge’s decision is subject to reversal. The rule suggested by the warden would preclude courts from finding prejudice in any situation where the defendant knew the range of penalties to which he was subject.

Furthermore, the circumstances of these cases illustrate the failings of the wardens’ argument. Miller and Haynes pled guilty in hopes of avoiding life imprisonment without parole. A reduced likelihood of being sentenced as an adult was the sole benefit of their guilty pleas before Chief Judge Roberson. In reality, the risk of being sentenced as an adult came in two parts: (1) being sentenced as an adult by Chief Judge Roberson; and (2) having received a juvenile sentence from Chief Judge Roberson, being subject to a successful appeal by the prosecutor. Miller and Haynes, however, each received from his attorney information of only the first risk. Defense counsel’s failure to assess all the risks and inform Miller and Haynes left each of them to make the most important decision of his life without essential information. Presented with all the risks, Haynes and Miller might well have decided to plead not guilty and to take their chances at trial. To meet the prejudice requirement under Hill and Strickland, Haynes and Miller need only show a reasonable probability that they would have pled not guilty had their attorneys competently advised them.

Miller puts forth additional evidence that, with competent assistance, he would have pled not guilty. Lusby testified that Miller pled guilty only reluctantly. The fact that Lusby had to prevail upon Miller to plead guilty tends to corroborate Miller’s testimony that he would have pled not guilty had he known of the prosecutor’s right to appeal. Lusby convinced Miller to plead, but did so without advising him of the full risk he faced of receiving a life sentence. This evidence shows that Miller would have been less likely to plead guilty had he been competently advised of all the risks.

Warden Straub argues that Miller actually knew before he was sentenced that the prosecutor could appeal. The prosecutor did state in his closing argument at Miller’s final sentencing hearing that he would appeal if Miller was sentenced as a juvenile. However, the die had already been cast. Miller’s final sentencing hearing came eleven months after his plea had been accepted and Lusby dismissed the concerns Miller expressed to him about the prosecutor’s statement because Lusby considered the prosecutor unlikely to succeed. Miller’s failure suddenly to reject his counsel’s advice, upon which he relied heavily, and press to withdraw his guilty plea a year after he made it does not show Miller was unprejudiced by Lusby’s incompetence.

We conclude that Miller’s and Lusby’s testimony, along with reasonable inferences from the facts and circumstances of this case, are sufficient to demonstrate not only a reasonable probability that Miller would have decided to plead not guilty but also that a contrary conclusion is objectively unreasonable.

The untimely death of Haynes’ trial counsel prevents him from offering any corroborative testimony that Haynes would have pled not guilty. In these special circumstances, we conclude that Haynes’ claim and the absence of any evidence or tenable argument to the contrary is sufficient to establish not only a reasonable likelihood that he would have pled not guilty, but also that any contrary conclusion is objectively unreasonable.

III. CONCLUSION

We conclude that Miller and Haynes each received constitutionally ineffective assistance of counsel. We further conclude that decisions to the contrary on the facts of each case are unreasonable applications of clearly established federal law. We therefore AFFIRM the federal district court’s conditional grant of habeas corpus separately for Miller and Haynes.

1 . The Honorable Denise Page Hood, United States District Court Judge for the Eastern District of Michigan.

2 . The court published only one opinion. See Haynes v. Burke, 115 F.Supp.2d 813 (E.D.Mich.2000). The other opinion is unpublished, see Miller v. Straub, No. 98-CV-74655-DT (E.D.Mich. Aug. 31, 2000), but the court analyzed the two cases similarly. In both cases, the district court ordered that, unless Michigan took action within 120 days to afford Miller and Haynes new trials, they could apply for writs ordering their forthwith release from custody.

3 .Two of the four other boys faced trial'on charges of first degree felony murder and assault with intent to rob while armed; they were found not guilty. Two boys pled guilty to second degree "murder and assault with intent to rob while armed. They were sentenced as juveniles. Those juvenile sentences were upheld by the Michigan Court of Appeals. People v. Brown, 205 Mich.App. 503, 517 N.W.2d 806 (1994).

4 . Under Michigan law at that time, the trial court had discretion to determine whether juveniles convicted of first degree murder should be sentenced as juveniles or as adults. See Mich. Comp. Laws Ann. § 769.1 (1990). The Michigan legislature amended the statute in 1996 to remove this discretion. See Mich. Pub. Act 1996 No. 247. All juveniles convicted of first degree murder are now mandatorily sentenced as adults. See Mich. Comp. Laws Ann. § 769.1(g) (2001).

5 . A 1988 amendment to Michigan statutory law granted Michigan prosecutors an appeal of right from ''[a] final judgment or final order of the ... recorder’s court” in criminal cases. Mich. Comp. Laws Ann. § 770.12 (as amended, Mich. Pub. Act 1988 No. 66). In November 1989, the Michigan Court of Appeals published a decision in which it construed the amendment to allow prosecutors to appeal criminal sentences as of right. People v. Reynolds, 181 Mich.App. 185, 448 N.W.2d 774, 775 (1989).

6 . The prosecutor appealed Haynes' sentence by right. The appeal in Miller’s case was not as a matter of right because the prosecutor did not timely file the appeal. However, the Michigan Court of Appeals granted the prosecutor's application for leave to appeal.

7 . Haynes’ trial counsel, Wilfred Rice, died before Haynes moved to withdraw his plea.

8 . Lyons also petitioned for a writ of habeas corpus in federal district court. In an opinion filed contemporaneously with this opinion, we have affirmed the grant of habeas corpus relief to Lyons by the district court. See Lyons v. Jackson, 297 F.3d 588 (6th Cir.2002).

9 . In federal district court, Haynes alleged other grounds for ineffectiveness of counsel. That court, having granted relief based on Haynes’ counsel’s failure to advise him of the prosecutor’s right to appeal, did not address those claims. Haynes v. Burke, 115 F.Supp.2d 813, 819-20 (E.D.Mich.2000).

10 . The Supreme Court in Williams acknowledged the difficulty in defining the term "unreasonable,” but explained that "it is a common term in the legal world and, accordingly, federal judges are familiar with its meaning.” 529 U.S. at 410, 120 S.Ct. 1495. This circuit has stated that we "rely solely on the Supreme Court’s decision in Williams for the appropriate standard under § 2254(d).” Harris v. Stovall, 212 F.3d 940, 943 (6th Cir.2000); accord Miller v. Francis, 269 F.3d 609, 614 & n. 1 (6th Cir.2001). Other circuit courts that have attempted greater clarification have come to widely divergent views on the meaning of “unreasonable.” Compare Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (stating that an "unreasonable application" requires “[s]ome increment of incorrectness beyond error,” but “the increment need not be great; otherwise, habeas relief would be limited to state court decisions 'so far off the mark as to suggest judicial incompetence' ”) (quoting Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 889 (3d Cir.1999)); with Kibbe v. DuBois, 269 F.3d 26, 36 (1st Cir.2001) ("[A] state court decision is objectively unreasonable under AEDPA only if it is so offensive to existing precedent, so devoid of record support, or so arbitrary, as to indicate that it is outside the universe of plausible, credible outcomes.”) (internal quotation marks removed); and with Delgado v. Lewis, 223 F.3d 976, 981 (9th Cir.2000) (equating an "unreasonable application” with “clear error,” i.e., “a definite and firm conviction that an error has been committed”).

11 . The court of appeals recognized that a determination of whether Miller’s and Haynes' guilty pleas were made knowingly and voluntarily turned on whether their attorneys' advice was “within the range of competence demanded of attorneys in criminal cases.” Haynes (After Remand), 562 N.W.2d at 244, 250. This is the equivalent of the performance inquiry in Strickland. See Hill, 474 U.S. at 56, 58, 106 S.Ct. 366 (equating Strickland's performance inquiry with consideration of whether counsel's advice was "within the range of competence demanded of attorneys in criminal cases”). Because the Michigan Court of Appeals determined Miller's and Haynes’ trial counsel performed adequately, it did not reach the questions whether Miller and Haynes each were prejudiced by deficient performance.

12 . The federal district court's opinion in Miller's case contains almost precisely the same wording. Miller v. Straub, No. 98-CV-74655-DT, Slip Op. at 13 (E.D.Mich. Aug. 31, 2000).

13 . In addition, Lusby entirely failed to consider that an appeals court, faced with the same two radically different sentencing possibilities as Chief Judge Roberson, might well reverse the trial court in favor of the more severe sentence.

14 . Citing the Supreme Court's recent decision in Bell v. Cone, - U.S. -, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002), the dissent states that an attorney's legitimate trial tactics do not constitute deficient performance. A defense counsel's failure to consider a prosecutor’s right to appeal is not a tactic or strategy. A defense counsel’s failure to inform or advise the defendant regarding the state’s right of appeal and the attendant chances of reversal is not a tactic or strategy. Such omissions of legal practice and legal counseling can never be a legitimate defense tactic or strategy.

15 . Warden Burke also argues that Haynes cannot show prejudice because, after learning that the prosecution had appealed his juvenile sentence, Haynes failed to request that the case be remanded to the trial court so that he could withdraw his plea. A defendant's decision not to abandon the appellate process in an effort to withdraw his guilty plea does not obviate prejudice to the defendant in pleading guilty as the decision to plead had already been made. Moreover, the warden’s contention is weakened because the case remained in the appeals court, not the trial court where withdrawal pleas must be made. Additionally, Haynes testified that his appellate counsel advised him there were other steps to be taken before they should consider withdrawing the plea.