Burt v. Titlow

(Slip Opinion) OCTOBER TERM, 2013 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
BURT, WARDEN v. TITLOW
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 12–414. Argued October 8, 2013—Decided November 5, 2013
Respondent Titlow and Billie Rogers were arrested for the murder of
Billie’s husband. After explaining to respondent that the State’s evi-
dence could support a conviction for first-degree murder, respondent’s
attorney negotiated a manslaughter plea in exchange for an agree-
ment to testify against Billie. Three days before Billie’s trial, re-
spondent retained a new attorney, Frederick Toca, who demanded an
even lower sentence in exchange for the guilty plea and testimony.
The prosecutor rejected the proposal, and respondent withdrew the
original plea. Without that testimony, Billie was acquitted. Re-
spondent was subsequently convicted of second-degree murder. On
direct appeal, respondent argued that Toca provided ineffective assis-
tance by advising withdrawal of the plea without taking time to learn
the strength of the State’s evidence. The Michigan Court of Appeals
rejected the claim, concluding that Toca’s actions were reasonable in
light of his client’s protestations of innocence. On federal habeas re-
view, the District Court applied the deferential standard of review set
forth in the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), concluded that the Michigan Court of Appeals’ ruling was
reasonable on the law and facts, and denied relief. The Sixth Circuit
reversed. It found the factual predicate for the state court’s deci-
sion—that the plea withdrawal was based on respondent’s assertion
of innocence—an unreasonable interpretation of the factual record,
given Toca’s explanation at the withdrawal hearing that the decision
to withdraw was made because the State’s original plea offer was
higher than the sentencing range provided by the Michigan guide-
lines. It also found no evidence in the record that Toca adequately
advised respondent of the consequences of withdrawal.
Held: The Sixth Circuit failed to apply the “doubly deferential” stand-
2 BURT v. TITLOW
Syllabus
ard of review recognized by the Court’s case law when it refused to
credit the state court’s reasonable factual finding and assumed that
counsel was ineffective where the record was silent. Pp. 4–11.
(a) AEDPA recognizes the federalism principle that state courts are
adequate forums for the vindication of federal statutory and constitu-
tional rights. It erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state court, re-
quiring them to “show that the state court’s ruling . . . was so lacking
in justification that there was an error . . . beyond any possibility for
fairminded disagreement.” Harrington v. Richter, 562 U. S. ___, ___.
Pp. 4–6.
(b) Here, the record readily supports the Michigan Court of Ap-
peals’ factual finding that Toca advised withdrawal of the guilty plea
only after respondent’s proclamation of innocence. The facts that re-
spondent passed a polygraph test denying being in the room when
Billie’s husband was killed, discussed the case with a jailer who ad-
vised against pleading guilty if respondent was indeed innocent, and
hired Toca just three days before Billie’s trial at which respondent
had agreed to self-incriminate, strongly suggest that respondent had
second thoughts about confessing in open court and proclaimed inno-
cence to Toca. The only evidence cited by the Sixth Circuit for its
contrary conclusion was that Toca’s sole explanation at the with-
drawal hearing focused on the fact that the State’s plea offer was
substantially higher than that provided by the Michigan guidelines.
The Michigan Court of Appeals was well aware of Toca’s representa-
tions to the trial court and correctly found nothing inconsistent about
a defendant’s asserting innocence on the one hand and refusing to
plead guilty to manslaughter accompanied by higher-than-normal
punishment on the other. Accepting as true the Michigan Court of
Appeals’ factual determination that respondent proclaimed innocence
to Toca, the Sixth Circuit’s Strickland analysis cannot be sustained.
More troubling is that court’s conclusion that Toca was ineffective be-
cause the record contained no evidence that he gave constitutionally
adequate advice on whether to withdraw the plea. The Sixth Circuit
turned on its head the principle that counsel should be “strongly pre-
sumed to have rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment,” Strick-
land v. Washington, 466 U. S. 668, 690, with the burden to show oth-
erwise resting squarely on the defendant, id., at 687. The single fact
that Toca failed to retrieve respondent’s file from former counsel be-
fore withdrawing the guilty plea cannot overcome Strickland’s strong
presumption of effectiveness. In any event, respondent admitted in
open court that former counsel had explained the State’s evidence
and that it would support a first-degree murder conviction. Toca was
Cite as: 571 U. S. ____ (2013) 3
Syllabus
justified in relying on this admission to conclude that respondent un-
derstood the strength of the prosecution’s case. Toca’s conduct in this
litigation was far from exemplary, but a lawyer’s ethical violations do
not make the lawyer per se ineffective, and Toca’s questionable con-
duct was irrelevant to the narrow issue before the Sixth Circuit.
Pp. 6–11.
680 F. 3d 577, reversed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and SCALIA, KENNEDY, THOMAS, BREYER, SOTOMAYOR, and KAGAN, JJ.,
joined. SOTOMAYOR, J,. filed a concurring opinion. GINSBURG, J., filed
an opinion concurring in the judgment.
Cite as: 571 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–414
_________________
SHERRY L. BURT, WARDEN, PETITIONER v. VONLEE
NICOLE TITLOW
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[November 5, 2013]
JUSTICE ALITO delivered the opinion of the Court.
When a state prisoner asks a federal court to set aside a
sentence due to ineffective assistance of counsel during
plea bargaining, our cases require that the federal court
use a “ ‘doubly deferential’ ” standard of review that gives
both the state court and the defense attorney the benefit of
the doubt. Cullen v. Pinholster, 563 U. S. ___, ___ (2011)
(slip op., at 17). In this case, the Sixth Circuit failed to
apply that doubly deferential standard by refusing to
credit a state court’s reasonable factual finding and by
assuming that counsel was ineffective where the record
was silent. Because the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and
Strickland v. Washington, 466 U. S. 668 (1984), do not
permit federal judges to so casually second-guess the
decisions of their state-court colleagues or defense attor­
neys, the Sixth Circuit’s decision must be reversed.
I
Respondent Titlow and Billie Rogers, respondent’s aunt,
murdered Billie’s husband Don by pouring vodka down his
throat and smothering him with a pillow. With help from
2 BURT v. TITLOW
Opinion of the Court
attorney Richard Lustig, respondent reached an agree­
ment with state prosecutors to testify against Billie, plead
guilty to manslaughter, and receive a 7- to 15-year sen­
tence. As confirmed at a plea hearing, Lustig reviewed the
State’s evidence with respondent “over a long period of
time,” and respondent understood that that evidence could
support a conviction for first-degree murder. App. 43–44.
The Michigan trial court approved the plea bargain.
Three days before Billie Rogers’ trial was to commence,
however, respondent retained a new lawyer, Frederick
Toca. With Toca’s help, respondent demanded a substan­
tially lower minimum sentence (three years, instead of
seven) in exchange for the agreement to plead guilty and
testify. When the prosecutor refused to accede to the new
demands, respondent withdrew the plea, acknowledging
in open court the consequences of withdrawal (including
reinstatement of the first-degree murder charge). Without
respondent’s critical testimony, Billie Rogers was acquit­
ted, and later died.
Respondent subsequently stood trial. During the course
of the trial, respondent denied any intent to harm Don
Rogers or any knowledge, at the time respondent covered
his mouth or poured vodka down his throat, that Billie
intended to harm him. Indeed, respondent testified to
attempting to prevent Billie from harming her husband.
The jury, however, elected to believe respondent’s previous
out-of-court statements, which squarely demonstrated
participation in the killing, and convicted respondent of
second-degree murder. The trial court imposed a 20- to
40-year term of imprisonment.
On direct appeal, respondent argued that Toca advised
withdrawal of the guilty plea without taking time to learn
more about the case, thereby failing to realize the strength
of the State’s evidence and providing ineffective assistance
of counsel. Rejecting that claim, the Michigan Court of
Appeals found that Toca acted reasonably in light of his
Cite as: 571 U. S. ____ (2013) 3
Opinion of the Court
client’s protestations of innocence. That court found that
respondent’s decision to hire Toca was “set in motion” by
respondent’s “statement to a sheriff ’s deputy that [re­
spondent] did not commit the offense.” App. to Pet. for
Cert. 101a. Applying the standard set forth by our deci­
sion in Strickland, which requires that defense counsel
satisfy “an objective standard of reasonableness,” 466
U. S., at 688, the Michigan Court of Appeals concluded
that “[w]hen a defendant proclaims . . . innocence . . . , it is
not objectively unreasonable to recommend that the de­
fendant refrain from pleading guilty—no matter how
‘good’ the deal may appear.” App. to Pet. for Cert. 102a.
Respondent then filed a federal habeas petition under
28 U. S. C. §2254. Applying AEDPA’s deferential stand­
ard of review, the District Court concluded that the Michi­
gan Court of Appeals’ ruling was “completely reasonable
on the law and the facts” and denied relief. No. 07–CV–
13614, 2010 WL 4115410, *15 (ED Mich., Oct. 19, 2010).
In particular, the District Court concluded that “[c]ounsel
could not be ineffective by trying to negotiate a better plea
agreement for [Titlow] with Billie Rogers’s trial imminent
and [Titlow] stating at the time that Billie Rogers had
committed the murder without . . . assistance.” Ibid.The Sixth Circuit reversed. It found that the factual
predicate for the state court’s decision—that the with­
drawal of the plea was based on respondent’s assertion of
innocence—was an unreasonable interpretation of the
factual record, given Toca’s explanation at the withdrawal
hearing that “the decision to withdraw Titlow’s plea was
based on the fact that the State’s plea offer was substan­
tially higher than the Michigan guidelines for second­
degree murder.” 680 F. 3d 577, 589 (2012). Further
observing that “[t]he record in this case contains no evi­
dence” that Toca fully informed respondent of the possible
consequences of withdrawing the guilty plea, the Sixth
Circuit held that Toca rendered ineffective assistance of
4 BURT v. TITLOW
Opinion of the Court
counsel that resulted in respondent’s loss of the benefit of
the plea bargain. Id., at 589–592. Citing our decision in
Lafler v. Cooper, 566 U. S. ___ (2012), the Sixth Circuit
remanded this case with instructions that the prosecution
must reoffer the original plea agreement to respondent,
and that the state court should “consul[t]” the plea agree­
ment and “fashion” a remedy for the violation of respond­
ent’s Sixth Amendment right to effective assistance of
counsel during plea bargaining. 680 F. 3d, at 592. Chief
Judge Batchelder dissented on the grounds that the Mich­
igan Court of Appeals’ decision was reasonable. Id., at
593.
On remand, the prosecution followed the Sixth Circuit’s
instructions and reoffered the plea agreement it had of­
fered some 10 years before—even though, in light of Billie
Rogers’ acquittal and subsequent death, respondent was
no longer able to deliver on the promises originally made
to the prosecution. At the plea hearing, however, re­
spondent balked, refusing to provide a factual basis for the
plea which the court could accept. Respondent admitted
to pouring vodka down Don Rogers’ throat, but denied
assisting in killing him or knowing that pouring vodka
down his throat could lead to his death. As at trial, re­
spondent testified to attempting to prevent Billie Rogers
from harming her husband. Eventually, after conferring
with current counsel (not Toca), respondent admitted to
placing Don Rogers in danger by pouring vodka down his
throat with the knowledge that his death could result.
The trial court took the plea under advisement, where the
matter stands at present. We granted certiorari. 568
U. S. ___ (2013).
II
AEDPA instructs that, when a federal habeas petitioner
challenges the factual basis for a prior state-court decision
rejecting a claim, the federal court may overturn the state
Cite as: 571 U. S. ____ (2013) 5
Opinion of the Court
court’s decision only if it was “based on an unreasonable
determination of the facts in light of the evidence pre-
sented in the State court proceeding.” 28 U. S. C. §2254(d)(2).
The prisoner bears the burden of rebutting the state
court’s factual findings “by clear and convincing evidence.”
§2254(e)(1). We have not defined the precise relationship
between §2254(d)(2) and §2254(e)(1), and we need not do
so here. See Wood v. Allen, 558 U. S. 290, 293 (2010). For
present purposes, it is enough to reiterate “that a state­
court factual determination is not unreasonable merely
because the federal habeas court would have reached a
different conclusion in the first instance.” Id., at 301.
AEDPA likewise imposes a highly deferential standard for
reviewing claims of legal error by the state courts: A writ
of habeas corpus may issue only if the state court’s deci­
sion “was contrary to, or involved an unreasonable appli­
cation of, clearly established Federal law, as determined
by” this Court. §2254(d)(1).
AEDPA recognizes a foundational principle of our fed-
eral system: State courts are adequate forums for the vindi-
cation of federal rights. “[T]he States possess sovereignty
concurrent with that of the Federal Government, subject
only to limitations imposed by the Supremacy Clause.
Under this system of dual sovereignty, we have consist-
ently held that state courts have inherent authority, and
are thus presumptively competent, to adjudicate claims
arising under the laws of the United States.” Tafflin v.
Levitt, 493 U. S. 455, 458 (1990). This principle applies to
claimed violations of constitutional, as well as statutory,
rights. See Trainor v. Hernandez, 431 U. S. 434, 443
(1977). Indeed, “state courts have the solemn responsibil­
ity equally with the federal courts to safeguard constitu­
tional rights,” and this Court has refused to sanction any
decision that would “reflec[t] negatively upon [a] state
court’s ability to do so.” Ibid. (internal quotation marks
omitted). Especially where a case involves such a common
6 BURT v. TITLOW
Opinion of the Court
claim as ineffective assistance of counsel under Strick-
land—a claim state courts have now adjudicated in count­
less criminal cases for nearly 30 years—“there is no
intrinsic reason why the fact that a man is a federal judge
should make him more competent, or conscientious, or
learned . . . than his neighbor in the state courthouse.”
Stone v. Powell, 428 U. S. 465, 494, n. 35 (1976) (internal
quotation marks omitted).
Recognizing the duty and ability of our state-court
colleagues to adjudicate claims of constitutional wrong,
AEDPA erects a formidable barrier to federal habeas relief
for prisoners whose claims have been adjudicated in state
court. AEDPA requires “a state prisoner [to] show that
the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was
an error . . . beyond any possibility for fairminded disa­
greement.” Harrington v. Richter, 562 U. S. ___, ___
(2011) (slip op., at 13). “If this standard is difficult to
meet”—and it is—“that is because it was meant to be.”
Id., at ___ (slip op., at 12). We will not lightly conclude
that a State’s criminal justice system has experienced the
“extreme malfunctio[n]” for which federal habeas relief is
the remedy. Id., at ___ (slip op., at 13) (internal quotation
marks omitted).
III
The record readily supports the Michigan Court of Ap­
peals’ factual finding that Toca advised withdrawal of the
guilty plea only after respondent’s proclamation of inno­
cence. Respondent passed a polygraph denying planning
to kill Don Rogers or being in the room when he died.
Thereafter, according to an affidavit in the record, re­
spondent discussed the case with a jailer, who advised
against pleading guilty if respondent was not in fact
Cite as: 571 U. S. ____ (2013) 7
Opinion of the Court
guilty. App. 298 (affidavit of William Pierson).1 That
conversation “set into motion” respondent’s decision to
retain Toca. Ibid., ¶8. Those facts, together with the
timing of Toca’s hiring—on the eve of the trial at which
respondent was to self-incriminate—strongly suggest that
respondent had second thoughts about confessing in open
court and proclaimed innocence to Toca. That conclusion
is further bolstered by respondent’s maintenance of inno­
cence of Don Rogers’ death at trial.
Indeed, reading the record in any other way is difficult.
Respondent’s first lawyer, Lustig, had negotiated a deal
that was quite favorable in light of the fact, admitted by
respondent in open court, that the State’s evidence could
support a conviction for first-degree murder. This deal
involved a guilty plea to manslaughter and a 7- to 15-year
sentence—far less than the mandatory sentence of life in
prison that results from a conviction for first-degree mur­
der under Michigan law. See Mich. Comp. Laws Ann.
§750.316 (West Supp. 2013). Yet after a jailer advised
against pleading guilty if respondent was not guilty, some-
thing caused respondent both to fire Lustig and hire Toca
(who within a few days withdrew the guilty plea), and
then to maintain innocence at trial. If that something was
not a desire to assert innocence, it is difficult to imagine
what it was, and respondent does not offer an alternative
theory.
The only evidence the Sixth Circuit cited for its conclu­
sion that the plea withdrawal was not based on respond­
ent’s proclamation of innocence was that, when Toca
——————
1 Respondent complains that the state court improperly relied on this
affidavit, but it was respondent who provided the affidavit to the state
court and asked it to rely on the affidavit as part of the ground for
remanding for an evidentiary hearing. In any event, even if the state
court used the affidavit for a purpose not permitted by state law—a
proposition we do not endorse—that would not empower a federal court
to grant habeas relief. See Estelle v. McGuire, 502 U. S. 62, 72 (1991).
8 BURT v. TITLOW
Opinion of the Court
moved to withdraw the guilty plea, he “did not refer to
Titlow’s claims of innocence,” but instead “explained that
the decision to withdraw [the] plea was based on the fact
that the State’s plea offer was substantially higher than
the Michigan guidelines” for manslaughter. 680 F. 3d, at
589. The Sixth Circuit believed that this fact “sufficiently
rebuts the Michigan Court of Appeals’ finding that the
plea withdrawal was based on Titlow’s assertion of inno­
cence.” Ibid.But the Michigan Court of Appeals was well aware of
Toca’s representations to the trial court, noting in its
opinion that respondent “moved to withdraw [the] plea
because the agreed upon sentence exceeded the sentencing
guidelines range.” App. to Pet. for Cert. 100a. The Michi­
gan Court of Appeals, however—unlike the Sixth Circuit—
also correctly recognized that there is nothing inconsistent
about a defendant’s asserting innocence on the one hand
and refusing to plead guilty to manslaughter accompanied
by higher-than-normal punishment on the other. Indeed,
a defendant convinced of his or her own innocence may
have a particularly optimistic view of the likelihood of
acquittal, and therefore be more likely to drive a hard
bargain with the prosecution before pleading guilty.
Viewing the record as a whole, we conclude that the Sixth
Circuit improperly set aside a “reasonable state-court
determinatio[n] of fact in favor of its own debatable inter­
pretation of the record.” Rice v. Collins, 546 U. S. 333, 335
(2006).
Accepting as true the Michigan Court of Appeals’ factual
determination that respondent proclaimed innocence to
Toca, the Sixth Circuit’s Strickland analysis cannot be
sustained. Although a defendant’s proclamation of inno­
cence does not relieve counsel of his normal responsibili­
ties under Strickland, it may affect the advice counsel
gives. The Michigan Court of Appeals’ conclusion that
Toca’s advice satisfied Strickland fell within the bounds of
Cite as: 571 U. S. ____ (2013) 9
Opinion of the Court
reasonableness under AEDPA, given that respondent was
claiming innocence and only days away from offering self­
incriminating testimony in open court pursuant to a plea
agreement involving an above-guidelines sentence.2 See
Florida v. Nixon, 543 U. S. 175, 187 (2004) (explaining
that the defendant has the “ ‘ultimate authority’ ” to decide
whether to accept a plea bargain); Brookhart v. Janis, 384
U. S. 1, 7–8 (1966) (observing that a lawyer must not
“override his client’s desire . . . to plead not guilty”). The
Sixth Circuit’s conclusion to the contrary was error.
Even more troubling is the Sixth Circuit’s conclusion
that Toca was ineffective because the “record in this case
contains no evidence that” he gave constitutionally ade­
quate advice on whether to withdraw the guilty plea. 680
F. 3d, at 590. We have said that counsel should be
“strongly presumed to have rendered adequate assistance
and made all significant decisions in the exercise of rea­
sonable professional judgment,” Strickland, 466 U. S., at
690, and that the burden to “show that counsel’s perfor­
mance was deficient” rests squarely on the defendant, id.,
at 687. The Sixth Circuit turned that presumption of
effectiveness on its head. It should go without saying that
the absence of evidence cannot overcome the “strong pre­
sumption that counsel’s conduct [fell] within the wide
range of reasonable professional assistance.” Id., at 689.
As Chief Judge Batchelder correctly explained in her
dissent, “[w]ithout evidence that Toca gave incorrect ad­
vice or evidence that he failed to give material advice,
Titlow cannot establish that his performance was defi­
cient.” 680 F. 3d, at 595.
The Sixth Circuit pointed to a single fact in support of
——————
2 We assume, arguendo, as did the Michigan Court of Appeals, that
Toca went beyond facilitating respondent’s withdrawal of the plea and
advised withdrawal, although we note that the sole basis in the record
for this assertion appears to be respondent’s self-serving testimony.
10 BURT v. TITLOW
Opinion of the Court
its conclusion that Toca failed to adequately advise re­
spondent: his failure to retrieve respondent’s file from
Lustig before withdrawing the guilty plea. Id., at 590.
But here, too, the Sixth Circuit deviated from Strickland’s
strong presumption of effectiveness. The record does not
reveal how much Toca was able to glean about respond­
ent’s case from other sources; he may well have obtained
copies of the critical materials from prosecutors or the
court. (Indeed, Toca’s statement at the plea withdrawal
hearing that “[t]here’s a lot of material here” strongly
suggests that he did have access to a source of documenta­
tion other than Lustig’s file. App. 71.)
In any event, the same considerations were relevant to
entering and withdrawing the guilty plea, and respondent
admitted in open court when initially pleading guilty that
Lustig had explained the State’s evidence and that this
evidence would support a conviction for first-degree mur­
der. Toca was justified in relying on this admission to
conclude that respondent understood the strength of the
prosecution’s case and nevertheless wished to withdraw
the plea. With respondent having knowingly entered the
guilty plea, we think any confusion about the strength of
the State’s evidence upon withdrawing the plea less than a
month later highly unlikely.
Despite our conclusion that there was no factual or legal
justification for overturning the state court’s decision, we
recognize that Toca’s conduct in this litigation was far
from exemplary. He may well have violated the rules of
professional conduct by accepting respondent’s publication
rights as partial payment for his services, and he waited
weeks before consulting respondent’s first lawyer about
the case. But the Sixth Amendment does not guarantee
the right to perfect counsel; it promises only the right to
effective assistance, and we have held that a lawyer’s
violation of ethical norms does not make the lawyer per se
ineffective. See Mickens v. Taylor, 535 U. S. 162, 171
Cite as: 571 U. S. ____ (2013) 11
Opinion of the Court
(2002). Troubling as Toca’s actions were, they were irrele­
vant to the narrow question that was before the Sixth
Circuit: whether the state court reasonably determined
that respondent was adequately advised before deciding to
withdraw the guilty plea. Because the Michigan Court of
Appeals’ decision that respondent was so advised is rea­
sonable and supported by the record, the Sixth Circuit’s
judgment is reversed.3
It is so ordered.
——————
3 Because we conclude that the Sixth Circuit erred in finding Toca’s
representation constitutionally ineffective, we do not reach the other
questions presented by this case, namely, whether respondent ade­
quately demonstrated prejudice, and whether the Sixth Circuit’s
remedy is at odds with our decision in Lafler v. Cooper, 566 U. S. ___
(2012).
Cite as: 571 U. S. ____ (2013) 1
SOTOMAYOR, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–414
_________________
SHERRY L. BURT, WARDEN, PETITIONER v. VONLEE
NICOLE TITLOW
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[November 5, 2013]
JUSTICE SOTOMAYOR, concurring.
In my view, this case turns on Vonlee Titlow’s failure to
present enough evidence of what Frederick Toca did or did
not do in the handful of days after she hired him and
before she withdrew her plea. As our opinion notes, she
bore the burden of overcoming two presumptions: that
Toca performed effectively and that the state court ruled
correctly. She failed to carry this burden. We need not
say more, and indeed we do not say more. I therefore join
the Court’s opinion in full. I write separately, however, to
express my understanding of our opinion’s limited scope,
particularly with respect to two statements that it makes
about the adequacy of Toca’s performance.
First, we state that “[a]lthough a defendant’s proclama-
tion of innocence does not relieve counsel of his normal
responsibilities under Strickland, it may affect the advice
counsel gives.” Ante, at 8. The first part of that statement
bears emphasis: Regardless of whether a defendant as-
serts her innocence (or admits her guilt), her counsel must
“make an independent examination of the facts, circum-
stances, pleadings and laws involved and then . . . offer his
informed opinion as to what plea should be entered.” Von
Moltke v. Gillies, 332 U. S. 708, 721 (1948) (plurality
opinion). A defendant possesses “ ‘the ultimate authority’ ”
to determine her plea. Florida v. Nixon, 543 U. S. 175,
2 BURT v. TITLOW
SOTOMAYOR, J., concurring
187 (2004). But a lawyer must abide by his client’s deci-
sion in this respect only after having provided the client
with competent and fully informed advice, including an
analysis of the risks that the client would face in proceed-
ing to trial. Given our recognition that “a defendant’s
proclamation of innocence does not relieve counsel of his
normal responsibilities,” ante, at 8, our further observa-
tion that such a proclamation “may affect the advice coun-
sel gives,” ibid., states only the obvious: that a lawyer’s
advice will always reflect the objectives of the representa-
tion, as determined by the adequately informed client.
Second, we state that it was reasonable for the Michigan
Court of Appeals to reject respondent’s claim, “given that
respondent was claiming innocence and only days away
from offering self-incriminating testimony” at her aunt’s
trial. Ante, at 9. This is true in context: Because respond-
ent failed to carry her burden of showing that Toca’s per-
formance was not adequate, the state court reasonably
held that it was. But our statement about the facts of this
case does not imply that an attorney performs effectively
in advising his client to withdraw from a plea whenever
the client asserts her innocence and has only a few days to
make the decision. Had respondent made a better factual
record—had she actually shown, for example, that Toca
failed to educate himself about the case before recom-
mending that she withdraw her plea—then she could well
have prevailed.
Because (and only because) respondent failed to present
enough evidence to overcome the twin presumptions of
AEDPA and Strickland, I join fully in the opinion of the
Court.
Cite as: 571 U. S. ____ (2013) 1
GINSBURG, J., concurring in judgment
SUPREME COURT OF THE UNITED STATES
_________________
No. 12–414
_________________
SHERRY L. BURT, WARDEN, PETITIONER v. VONLEE
NICOLE TITLOW
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[November 5, 2013]
JUSTICE GINSBURG, concurring in the judgment.
While I join the Court’s judgment, I find dubious the
Michigan Court of Appeals’ conclusion that Toca acted
reasonably in light of Titlow’s protestations of innocence.
Toca became Titlow’s counsel on the recommendation of
the deputy sheriff to whom Titlow professed innocence.
App. 298. As the Court rightly observes, Toca’s conduct
was “far from exemplary.” Ante, at 10. With virtually no
time to make an assessment of Titlow’s chances of prevail-
ing at trial, and without consulting the lawyer who had
negotiated Titlow’s plea, Toca told Titlow he could take
the case to trial and win. App. 295 (Titlow’s uncontra-
dicted averment). With Toca’s aid, Titlow’s plea was with-
drawn just three days after Toca’s retention as defense
counsel. At sentencing, the prosecutor volunteered that
Titlow had been the “victim of some bad advice.” Id., at
291.
Nevertheless, one thing is crystal clear. The prosecu-
tor’s agreement to the plea bargain hinged entirely on
Titlow’s willingness to testify at her aunt’s trial. See App.
42–43, 45. Once Titlow reneged on that half of the deal,
the bargain failed. Absent an extant bargain, there was
nothing to renew. See Puckett v. United States, 556 U. S.
129, 137 (2009) (“Although the analogy may not hold in
all respects, plea bargains are essentially contracts. . . .
2 BURT v. TITLOW
GINSBURG, J., concurring in judgment
[W]hen one of the exchanged promises is not kept . . . we
say that the contract was broken.”); Scott & Stuntz, Plea
Bargaining as Contract, 101 Yale L. J. 1909, 1953 (1992)
(“When defendants promise to plead guilty in return for
government concessions and then do so, they are legally
entitled to the concessions. At the same time, if the de-
fendant fails to perform, the prosecutor need not perform
either.” (footnote omitted)). In short, the prosecutor could
not be ordered to “renew” a plea proposal never offered in
the first place. With the plea offer no longer alive, Titlow
was convicted after a trial free from reversible error. See
App. 295. For these reasons, I join the Court’s judgment.