Nicanor Rodriguez v. Dennis Bush

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 14-7297
NICANOR PEREZ RODRIGUEZ,
Petitioner - Appellant,
v.
DENNIS BUSH, Warden,
Respondent - Appellee.
No. 15-6716
NICANOR PEREZ RODRIGUEZ,
Petitioner - Appellant,
v.
DENNIS BUSH, Warden,
Respondent - Appellee.
Appeals from the United States District Court for the District
of South Carolina, at Rock Hill. Terry L. Wooten, Chief
District Judge. (0:13-cv-03401-TLW)
Argued: September 20, 2016 Decided: November 23, 2016
Before KEENAN, FLOYD, and THACKER, Circuit Judges.
Affirmed by published opinion. Judge Floyd wrote the opinion,
in which Judge Keenan and Judge Thacker joined.
ARGUED: Matthew Jay Kappel, Greenville, South Carolina, for
Appellant. Alphonso Simon, Jr., OFFICE OF THE ATTORNEY GENERAL
OF SOUTH CAROLINA, Columbia, South Carolina, for Appellee. ON
BRIEF: Alan Wilson, Attorney General, John W. McIntosh, Chief
Deputy Attorney General, Donald J. Zelenka, Assistant Deputy
Attorney General, OFFICE OF THE ATTORNEY GENERAL OF SOUTH
CAROLINA, Columbia, South Carolina, for Appellee.
2
FLOYD, Circuit Judge:
Nicanor Perez Rodriguez appeals the order of the district
court below denying his 28 U.S.C. § 2254 petition.
Immediately before Rodriguez’s state criminal trial for
drug trafficking, the trial judge rejected a plea agreement
reached between Rodriguez and the state prosecutor. The judge
did so off the record, and gave no reason for this rejection
other than stating that he “was ready to try a case.” J.A. 167.
Rodriguez’s attorney did not object to the rejection of the
plea, nor did he ask the judge to place his reasons for
rejecting the plea on the record. Rodriguez contends that his
counsel’s failure to object constitutes ineffective assistance
of counsel. He asks this Court for relief under 28 U.S.C.
§ 2254.
To prevail on an ineffective assistance of counsel claim,
Rodriguez must show (1) “that counsel’s performance was
deficient” and (2) “that the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687
(1984). Rodriguez has not shown that his defense was prejudiced
by his counsel’s alleged error. For this reason, we affirm the
decision of the district court.
3
I.
In 2009, a South Carolina jury convicted Rodriguez on
multiple counts of drug trafficking. The trial court sentenced
Rodriguez to an aggregate term of 45 years of imprisonment.
In 2010, Rodriguez filed in state court a motion for
postconviction relief (the “PCR Motion”). In his PCR Motion,
Rodriguez asserted that the trial court violated his federal due
process rights by refusing to allow him to enter a guilty plea
pursuant to a negotiated plea agreement. Rodriguez also alleged
that his trial counsel provided ineffective assistance by
failing to object to the trial court’s rejection of his plea,
which then precluded appellate review of the issue. 1
The state court held an evidentiary hearing on the PCR
Motion. At the hearing, Rodriguez’s trial counsel, James Ervin,
testified that prior to Rodriguez’s trial, the state offered
Rodriguez a plea deal with a recommended 25-year sentence, which
Rodriguez rejected. On the day of trial, the state offered
Rodriguez a new plea agreement with a recommended sentence of 20
years, which Rodriguez accepted. The state made similar offers
to Rodriguez’s co-defendants, whose cases were also scheduled to
go to trial that day.
1
Rodriguez raised another claim, regarding his counsel’s
failure to inform him of his right to appeal, but this claim is
not relevant here.
4
The trial judge accepted Rodriguez’s co-defendants’s pleas.
The prosecutor and Ervin then approached the trial judge in
chambers to inform him of Rodriguez’s plea agreement. Ervin
testified that the trial judge said that “he was not going to
accept the plea and that he was ready to try a case this week or
that week.” J.A. 167. Ervin testified, “I’d never had that
happen before. . . . So I was, myself, professionally confused
as to how to proceed.” J.A. 168. Ervin explained that he
attempted to persuade the judge to accept the plea deal, noting
that the judge had just accepted Rodriguez’s co-defendants’
similar pleas. Ervin did not, however, object to or mention the
court’s rejection of the plea agreement on the record. The
trial judge never stated on the record why he refused the plea
agreement.
The state court denied the PCR Motion as relevant to this
appeal. It identified the relevant issues presented as:
(1) Ineffective assistance of counsel:
. . . .
b. Failure to object to the trial judge’s
decision not to accept the plea
recommendation.
(2) Trial judge’s refusal to accept the plea
recommendation was a denial of due process.
J.A. 190. The court held that Rodriguez failed to meet his
burden to show that Ervin should have objected to the judge’s
refusal to accept the plea agreement, and that Rodriguez could
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not prove prejudice. Additionally, the court held that
Rodriguez’s due process rights had not been violated.
Rodriguez then filed a petition for a writ of certiorari in
the Supreme Court of South Carolina, challenging the denial of
the PCR motion. In a summary opinion, the Supreme Court of
South Carolina denied Rodriguez’s petition for certiorari on
this issue. See Rodriguez v. State, No. 2013-MO-023, 2013 WL
8596567 (S.C. Aug. 14, 2013) (per curiam). 2
Rodriguez then filed the instant § 2254 petition. The
district court below denied his petition. Rodriguez then filed
a motion for a certificate of appealability, which this Court
granted.
II.
A.
This Court reviews de novo the district court’s decision
denying Rodriguez’s § 2254 petition. Grueninger v. Dir., Va.
Dep’t of Corr., 813 F.3d 517, 523 (4th Cir. 2016). When a state
court has adjudicated a § 2254 petitioner’s claim on the merits,
however, the § 2254 petition may only be granted if the
adjudication:
2Rodriguez also presented the direct appeal issue, not
relevant here, which the court considered and dismissed.
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(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 States; or
(2) resulted in a decision that was based on an
unreasonable determination of the facts in light
of the evidence presented in the State court
proceeding.
28 U.S.C. § 2254(d). To establish that a state court
unreasonably applied federal law, a petitioner must demonstrate
“that the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law beyond
any possibility for fairminded disagreement.” Harrington v.
Richter, 562 U.S. 86, 103 (2011).
To demonstrate ineffective assistance of counsel, Rodriguez
must show (1) “that counsel’s performance was deficient,” and
(2) “that the deficient performance prejudiced the defense.”
Strickland, 466 U.S. at 687. Because the state court addressed
the ineffective assistance claim in denying Rodriguez’s PCR
Motion, Rodriguez must establish under § 2254(d) that the state
court unreasonably applied Strickland. The inquiry is thus
“whether there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.” Harrington, 562 U.S. at
105. “The standards created by Strickland and § 2254(d) are
both highly deferential and when the two apply in tandem, review
7
is doubly so.” Id. (internal quotation marks and citations
omitted).
Although Strickland is a two-prong test, “a court need not
determine whether counsel’s performance was deficient before
examining the prejudice suffered by the defendant as a result of
the alleged deficiencies. . . . If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.” Strickland,
466 U.S. at 697. Here, Rodriguez’s claim can be disposed of on
the “prejudice” prong.
To prove prejudice, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694.
A defendant is not prejudiced if his counsel fails to make an
objection that is “wholly meritless under current governing
law[.]” Lockhart v. Fretwell, 506 U.S. 364, 374 (1993).
B.
Rodriguez contends that his counsel was ineffective because
he failed to object to the rejection of the plea agreement and
preserve the issue for appellate review. He argues that his
counsel should have objected and alleged a violation of federal
8
due process. We hold, however, that an objection claiming a
violation of federal due process rights would, in this case,
have been wholly meritless. 3 The Supreme Court has clearly
stated that there is no federal right that a plea be accepted by
a judge. Missouri v. Frye, 132 S. Ct. 1399, 1410 (2012). As a
result, Rodriguez was not prejudiced by his counsel’s failure to
object.
Rodriguez’s claim that the judge’s rejection of his plea
violated his federal due process rights is based on language in
Santobello v. New York, 404 U.S. 257, 262 (1971). Santobello
states, ”There is, of course, no absolute right to have a guilty
plea accepted. A court may reject a plea in exercise of sound
judicial discretion.” Id. (citations omitted). Rodriguez
asserts that this statement creates a federal due process right
that a plea only be rejected in the “exercise of sound judicial
discretion.”
3
Rodriguez also briefly argues that Rule 11 of the Federal
Rules of Criminal Procedure regulates a state judge’s ability to
reject a plea agreement. This argument is without merit as
well. Rodriguez’s trial was a state trial. The Federal Rules
of Criminal Procedure apply to federal trials, not state trials.
See Fed.R.Crim.P. 1(a)(1)(“These rules govern the procedure in
all criminal proceedings in the United States district courts,
the United States courts of appeals, and the Supreme Court of
the United States.”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th
Cir. 1972) (stating that state courts are not bound by Rule 11).
9
This contention, however, is misplaced. This reading of
Santobello is itself untenable, and moreover, in cases after
Santobello, the Supreme Court has made clear that there is no
federal due process right that a plea be accepted, stating, “a
defendant has no right to be offered a plea, nor a federal right
that the judge accept it.” Frye, 132 S. Ct. at 1410 (citations
omitted). Notably, the Court even cited Santobello in support
of this proposition. See id.
This same language was repeated in Lafler v. Cooper, 132 S.
Ct. 1376 (2012). See id. at 1387 (quoting Frye, 132 S. Ct. at
1410). In Lafler, the Supreme Court explained how the
Strickland standard for ineffective assistance should be applied
when an attorney errs in advising a defendant not to accept a
plea agreement. Id. The Court went on to explain, “If no plea
offer is made, or a plea deal is accepted by the defendant but
rejected by the judge, the issue raised here simply does not
arise.” Id. (emphasis added). This further demonstrates that
there is no due process right that a plea be accepted by a
judge.
In addition, this Court has also acknowledged that there is
no constitutional right that a plea bargain be accepted,
stating, “[a] defendant has no constitutional right to a plea
bargain. Nor is there a constitutional right to have a plea
bargain, once made, accepted by the court. . . . [T]he court may
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accept or reject the plea at its discretion.” Fields v.
Attorney Gen. of Md., 956 F.2d 1290, 1297 n.19 (4th Cir. 1992)
(citations omitted). Again, Santobello was cited for this
proposition. See id.
Based on the above interpretations of Santobello by the
Supreme Court and by this Court, there is not a valid argument
that Santobello announced a constitutional due process right
that a judge accept a plea bargain. 4 For this reason, an
objection to a judge’s plea rejection based on Santobello does
not have merit. Rodriguez was therefore not prejudiced by his
attorney’s failure to make this meritless objection.
III.
Rodriguez has not demonstrated prejudice in this case. The
objection he contends that his attorney should have made is
without merit. As a result, we hold that the state PCR court’s
determination that Rodriguez was not prejudiced is reasonable,
and the district court below did not err in denying Rodriguez’s
4
Rodriguez also points to Seventh Circuit precedent for his
contention that Santobello created a federal due process right
that a plea be accepted; however, the cases he cites involve
appeals from federal district courts (rather than state courts),
and the interpretation of Rule 11. None of these cases invoke
due process in their analysis. See, e.g., United States v.
Delegal, 678 F.2d 47, 50 (7th Cir. 1982); United States v.
Davis, 516 F.2d 574, 578 (7th Cir. 1975).
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request for relief under 28 U.S.C. § 2254. Accordingly, the
judgment below is
AFFIRMED.
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