# Brown v. Medeiros

> District Court, D. Massachusetts · July 26, 2018

URL: https://www.frixlaw.com/law-library/cases/10196973

## Case

- **Court:** District Court, D. Massachusetts
- **Decided:** July 26, 2018
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10196973

## How later opinions describe it (automated extraction)

- emphasizing the “formidable barrier” faced by federal habeas petitioner where claims already were adjudicated in state court, and limiting relief to cases of “extreme malfunctions” by state criminal justice systems
- describing that process as one “defined to a substantial degree by personal style” and, thus, not amenable to judicially defined “detailed standards”
- discussing the “separate and exacting standard applicable to review of a state court’s factual findings”
- discussing “exceptional cases in which exorbitant application of a generally sound rule renders the state ground inadequate”

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

)
TERRENCE BROWN, )
)
Petitioner, )
)
v. ) Civil No. 18-10181-LTS
)
SEAN MEDEIROS, )
)
Respondent. )
)

MEMORANDUM AND ORDER ON PETITION
FOR WRIT OF HABEAS CORPUS (DOC. NO. 1)

July 26, 2018

SOROKIN, J.
Terrence Brown, a prisoner at the Massachusetts Correctional Institution in Norfolk,
Massachusetts, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He
claims his trial counsel was ineffective for providing incorrect legal advice, causing Brown to
reject a favorable plea offer. Because Brown’s claim is procedurally defaulted (and, in any
event, meritless), the petition is DISMISSED.
I. BACKGROUND
On July 25, 2006, a Suffolk County jury convicted Brown of two counts of first-degree
murder and related charges in connection with the shooting deaths of two victims during a
botched armed robbery. Commonwealth v. Rivera, 981 N.E.2d 171, 176 (Mass. 2013), cert.
denied, 570 U.S. 907 (2013);1 Doc. No. 1 at 1-2;2 Doc. No. 1-1 at 1; S.A. at 1-2, 12-13.3 The
Supreme Judicial Court (“SJC”) has extensively recounted “the facts the jury could have found”
at Brown’s trial. Rivera, 981 N.E.2d at 176-79. The following summary of those facts are
relevant for present purposes:
On August 10, 2001, [Brown] and . . . Rivera went to the [victims’] apartment . . .
in the South End section of Boston. They both arrived at the door wearing dust
masks and carrying firearms. . . . After they forced their way into the apartment,
[Brown] bound the occupant[s’] ankles and wrists with duct tape. The defendants
then searched the apartment for drugs and money, but did not find what they were
looking for. . . . Rivera shot [one victim] six times in the head, and shot [the other
victim] once in the head. He also attempted to shoot [a third occupant], but had run
out of ammunition. [Brown] and Rivera then left the apartment. [The surviving
occupant] freed himself from the duct tape, . . . and telephoned 911.
. . . [Brown’s] thumbprint had been found on a piece of duct tape that had been used
to bind one of the victims. . . . When initially confronted with the fingerprint
evidence by investigating officers, [Brown] admitted to having been present when
the men forced their way into the apartment, and to having bound the victims with
duct tape; he denied having been in the apartment when [Rivera] shot the victims.4
Doc. No. 1-1 at 2-3 (citations and a footnote omitted).
A pretrial motion to suppress Brown’s statements to police was unsuccessful. Id. at 3-4.
Sometime before trial, the Commonwealth offered to allow Brown to plead guilty to second-
degree murder, and to recommend a sentence including parole eligibility after fifteen years, in
exchange for Brown testifying against Rivera. Id. at 4. Brown’s trial counsel—a seasoned
criminal defense attorney—“repeatedly urged [Brown] to accept the plea arrangement.” Id.;

1 Brown was tried with his alleged co-venturer, Nathan Rivera, who also was convicted of first-
degree murder and other charges. Rivera, 981 N.E.2d at 176.
2 Citations to documents on the Court’s electronic docket reference the assigned docket number
and the page number from the ECF header at the top of each page.
3 The respondent has filed a Supplemental Answer (“S.A.”) containing the state-court record in
three bound volumes. Doc. Nos. 15, 17.
4 Here, the single justice includes a footnote stating: “According to [Brown], he left the
apartment after binding the victims, and waited for Rivera outside, in a parked vehicle, where
Rivera appeared ‘a few minutes’ later.” Doc. No. 1-1 at 3 n.3.
Doc. No. 1-2 at 3-4. He even enlisted the help of another lawyer, someone with connections to
Brown and his family, “to attempt to persuade [Brown] to accept what trial counsel viewed as a
‘reasonable’ plea arrangement ‘under the circumstances.’” Doc. No. 1-1 at 4.
Despite trial counsel’s consistent and emphatic recommendation, Brown “asked . . .
whether there was a way to ‘beat’ the [murder] charges altogether, because he had not shot

anyone.” Id. Trial counsel told Brown
that the only possible defense, given [Brown’s] statement [to police], was to claim
that he had withdrawn from the joint enterprise prior to the shooting. Counsel
cautioned, however, that he viewed the chance of acquittal on this theory as very
slim, warning [Brown] that juries do not like withdrawal defenses, such a defense
was “weak,” and the evidence against him was strong.
Id. at 4-5. Against trial counsel’s advice, Brown rejected the plea and “insisted on a trial.” Id. at
5. “At trial, counsel vigorously pursued a defense of withdrawal,” beginning in his opening
statement and continuing through his closing argument; at his request, the trial judge included a
withdrawal instruction in his closing charge to the jury. Id.
As trial counsel had predicted, the defense was unsuccessful, and Brown was convicted
of first-degree murder “on a theory of joint-venture felony-murder.” Id. He received a
mandatory sentence of life imprisonment without the possibility of parole. Doc. No. 1 at 1;
Mass. Gen. Laws ch. 265, § 2(a).
Brown filed a timely direct appeal, challenging the admission of a redacted version of his
statement to police and the trial court’s instruction regarding withdrawal from a joint venture.
S.A. at 13, 47-48. The SJC affirmed Brown’s conviction and sentence on January 9, 2013.
Rivera, 981 N.E.2d at 171, 176; S.A. at 15, 21. In rejecting Brown’s challenge to the withdrawal
instruction, the SJC reasoned that “the evidence in this case was insufficient to warrant an
instruction on withdrawal,” as “there was no evidence to suggest that Brown communicated to
Rivera any intent to withdraw,” nor “evidence of an ‘appreciable interval’ between [Brown’s]
alleged withdrawal and the murders.” Rivera, 981 N.E.2d at 187-88.
The SJC denied rehearing, and the United States Supreme Court denied certiorari. S.A.
at 21. Meanwhile, Brown filed a pro se motion for a new trial in the Superior Court, challenging
trial counsel’s effectiveness in connection with Brown’s rejection of the pretrial plea offer. S.A.

at 15, 191, 194. Brown attributed the following statements to trial counsel: “the murder charges
could be beat with a withdrawal defense,” and “I advise you not to accept the Commonwealth’s
plea offer.” S.A. at 195. But for this advice, Brown wrote, he would have pled guilty. S.A. at
207. The motion court appointed counsel to represent Brown and scheduled an evidentiary
hearing. S.A. at 16.
At the hearing, trial counsel and Brown each testified about their conversations regarding
the plea offer and Brown’s decision to reject it. S.A. at 311-70. Ultimately, the motion court
rejected Brown’s claim. See generally Doc. No. 1-2. The motion court “credit[ed] in its entirety
the testimony of” trial counsel, which it described as “clear and unequivocal” with respect to “the

strength of the Commonwealth’s case, the negotiations with the prosecutor regarding a possible
plea agreement, and his advice and counsel to the defendant.” Id. at 3 & n.4. The motion court
also emphasized that Brown had “acknowledged that his affidavit falsely asserted that [trial
counsel] advised him not to accept the Commonwealth’s plea offer”—in other words, the critical
allegation which formed the basis for the motion court’s decision to hold an evidentiary hearing
in the first instance had been a lie. Id. at 1, 5.
Brown sought review of the motion judge’s decision, S.A. at 16, 18, but a single justice
of the SJC concluded that Brown’s claims were “neither new nor substantial” and denied his
petition for review, see generally Doc. No. 1-1.
In his timely federal habeas petition, Brown presents to this Court his claim that “[t]rial
counsel provided ineffective assistance when he incorrectly advised Mr. Brown that he had a
legally viable withdrawal defense, resulting in Mr. Brown’s rejecting a plea offer.” Doc. No. 1
at 5. The same attorney appointed to represent Brown during his state-court evidentiary hearing
on this claim continues to represent Brown here.

II. LEGAL STANDARDS
A. Procedural Default
“[A] federal court will not review the merits of claims, including constitutional claims,
that a state court declined to hear because the prisoner failed to abide by a state procedural rule.”
Martinez v. Ryan, 566 U.S. 1, 9 (2012). If, for example, the state’s highest court refuses to
address the merits of a federal claim because of “a state-law ground that ‘is independent of the
federal question and adequate to support the judgment,’” that claim is procedurally defaulted and
barred from review by a federal habeas court. Cone v. Bell, 556 U.S. 449, 465 (2009) (quoting
Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The procedural default rule is meant “to

ensure that state-court judgments are accorded the finality and respect necessary to preserve the
integrity of legal proceedings within our system of federalism.” Martinez, 566 U.S. at 9.
A petitioner may obtain review of defaulted claims only if he can “demonstrate cause for
the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate
that failure to consider the[] claims will result in a fundamental miscarriage of justice.”
Coleman, 501 U.S. at 750. To demonstrate cause sufficient to excuse default, a petitioner must
prove “some objective factor external to the defense impeded counsel’s [or petitioner’s] efforts
to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). To
establish “actual prejudice,” a petitioner must demonstrate that the alleged errors “worked to his
actual and substantial disadvantage, infecting his entire trial with error of constitutional
dimensions.” United States v. Frady, 456 U.S. 152, 168 (1982). If a petitioner seeks to establish
a “fundamental miscarriage of justice” instead, he must demonstrate “actual innocence.” Schlup
v. Delo, 513 U.S. 298, 324 (1995); Janosky v. St. Amand, 594 F.3d 39, 46 (1st Cir. 2010).
B. General Habeas Review

Even if there is no procedural bar to a federal court reviewing the merits of a habeas
petitioner’s claim, the standard for federal habeas relief is “difficult to meet,” with the petitioner
carrying a heavy burden of proof. Harrington v. Richter, 562 U.S. 86, 102 (2011); accord Cullen
v. Pinholster, 563 U.S. 170, 181 (2011); see Burt v. Titlow, 571 U.S. 12, 19-20 (2013)
(emphasizing the “formidable barrier” faced by federal habeas petitioner where claims already
were adjudicated in state court, and limiting relief to cases of “extreme malfunctions” by state
criminal justice systems). Federal district courts may not grant a writ of habeas corpus unless
they find that the state court’s adjudication of the petitioner’s claims “(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).
A ruling is “contrary to” clearly established Supreme Court precedent “if the state court
applies a rule that contradicts the governing law set forth in [Supreme Court] cases,” or “if the
state court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [its] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000). A decision constitutes an “unreasonable application” of
Supreme Court precedent if the state court identifies the correct governing legal rule, but
“unreasonably applies it to the facts of the particular state prisoner’s case.” Williams, 529 U.S.
at 407-08. This standard is not satisfied where a state court decides not “to apply a specific legal
rule that has not been squarely established by” the Supreme Court. Knowles v. Mirzayance, 556
U.S. 111, 122 (2009). “The more general the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

If a state court’s decision “was reasonable, it cannot be disturbed” under § 2254(d).
Hardy v. Cross, 565 U.S. 65, 72 (2011) (per curiam). A showing of clear error is not sufficient
for a habeas petitioner to establish entitlement to relief. Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003). Relief is available only where a state court’s “determination was unreasonable – a
substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465, 473 (2007); accord Brown
v. Ruane, 630 F.3d 62, 67 (1st Cir. 2011); see also Richter, 562 U.S. at 103 (requiring a
petitioner to “show that the state court’s ruling . . . was so lacking in justification that there was
an error well understood and comprehended in existing law beyond any possibility for
fairminded disagreement”). To succeed, then, a petitioner must show that the state court’s

rejection of his claim was “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 options.” Sanna v.
Dipaolo, 265 F.3d 1, 13 (1st Cir. 2001) (quotation marks omitted).
A state court’s determination of the facts, in light of the evidence before it, “is not
unreasonable merely because [a] federal habeas court would have reached a different conclusion
in the first instance.” Wood v. Allen, 558 U.S. 290, 301 (2010). Even if “[r]easonable minds
reviewing the record might disagree” about a challenged factual determination, “on habeas
review that does not suffice to supersede the [state] court’s . . . determination.” Rice v. Collins,
546 U.S. 333, 341-42 (2006). If there is “evidence in the state-court record [that] can fairly be
read to support the [state] court’s factual determination,” relief under § 2254(d)(2) generally is
not warranted. Wood, 558 U.S. at 301-02.
Federal courts ordinarily must presume that the state court’s factual findings are correct,
unless the petitioner offers clear and convincing evidence to the contrary. § 2254(e)(1); Miller-
El v. Cockrell, 537 U.S. 322, 340-41 (2003); Pike v. Guarino, 492 F.3d 61, 68 (1st Cir. 2007)

(discussing the “separate and exacting standard applicable to review of a state court’s factual
findings”).5
C. Ineffectiveness of Counsel
Strickland v. Washington, 466 U.S. 668 (1984), provides the “clearly established federal
law governing” a claim that trial counsel was constitutionally ineffective. Jewett v. Brady, 634
F.3d 67, 75 (1st Cir. 2011). To satisfy Strickland’s two-part test, “[f]irst, the defendant must
show counsel’s performance was deficient,” which requires showing “counsel made errors so
serious that counsel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment.” 466 U.S. at 687. “Second, the defendant must show the deficient performance

prejudiced the defense.” Id. This test applies not only to challenges to counsel’s decisions and
actions in the context of a trial, but also to challenges to counsel’s representation during plea
negotiations. Hill v. Lockhart, 474 U.S. 52, 58 (1985); accord Lafler v. Cooper, 566 U.S. 156,
162-63 (2012).
“Surmounting Strickland’s high bar is never an easy task.” Padilla v. Kentucky, 559 U.S.
356, 371 (2010); accord Richter, 562 U.S. at 105. This is especially so because habeas review of
counsel ineffectiveness claims is subject to a “‘doubly deferential’ standard of review that gives

5 Neither the First Circuit nor the Supreme Court have defined the contours of the relationship
between the presumption described in § 2254(e)(1) and the standard for relief described in
§ 2254(d)(2), but this Court need not parse that distinction in this case.
both the state court and the defense attorney the benefit of the doubt.” Titlow, 571 U.S. at 15
(quoting Pinholster, 563 U.S. at 190). In this context, the “pivotal question” is not whether the
petitioner has met the Strickland standard in the first instance, but whether “fairminded jurists
would all agree that the [state court’s] decision [that he has not met it] was unreasonable.”
Jewett, 634 F.3d at 75 (quotation marks omitted); accord Richter, 562 U.S. at 101.

Counsel’s performance is measured objectively, considering only what is “reasonable[]
under prevailing professional norms.” Strickland, 466 U.S. at 687-88; accord Premo v. Moore,
562 U.S. 115, 122 (2011). Federal courts must be “highly deferential” and “indulge a strong
presumption” that counsel’s challenged actions might be considered sound strategy under the
circumstances. Strickland, 466 U.S. at 689; accord Mirzayance, 556 U.S. at 124. “It is ‘[r]are’
that constitutionally competent representation will require ‘any one technique or approach.’”
Pinholster, 563 U.S. at 195 (quoting Richter, 562 U.S. at 106). The Supreme Court has
suggested that similar deference is owed to counsel’s tactics and conduct during the plea
bargaining process. See Missouri v. Frye, 566 U.S. 134, 145 (2012) (describing that process as

one “defined to a substantial degree by personal style” and, thus, not amenable to judicially
defined “detailed standards”).
To establish prejudice, a defendant must demonstrate “a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694; accord Mirzayance, 556 U.S. at 127. When the claimed error arises in the plea
bargaining context, the prejudice prong requires a defendant to “show that but for the ineffective
advice of counsel there is a reasonable probability that the plea offer would have been” accepted
by the defendant and the court, and that as a result the defendant would have received a less
severe conviction or sentence (or both). Lafler, 566 U.S. at 164.
III. DISCUSSION
A. Procedural Default6
In Massachusetts, defendants convicted of first-degree murder are entitled to plenary
review of both legal and factual issues on direct appeal to the SJC. Mass. Gen. Laws ch. 278,
§ 33E; accord Lee v. Corsini, 777 F.3d 46, 55 (1st Cir. 2015). This broad direct review is

balanced by a rule limiting post-conviction review by the SJC after it affirms a first-degree
murder conviction, notwithstanding a defendant’s right under Massachusetts law to file unlimited
motions for a new trial in the Superior Court. § 33E; accord Lee, 777 F.3d at 55. Only if a
single “gatekeeper” justice determines that an appeal from the denial of subsequent motion for a
new trial “presents a new and substantial question,” or that the appeal implicates “a substantial
risk of a miscarriage of justice,” will a second, post-affirmance review by the full SJC be
undertaken. § 33E; accord Jewett v. Brady, 634 F.3d 67, 76 (1st Cir. 2011).
A “single justice’s determination that an issue is not ‘new’ within the meaning of § 33E is
tantamount to a finding of procedural default, the classic example of an independent and

adequate state ground.” Lee, 777 F.3d at 55 (quotation marks omitted); accord Mendes v. Brady,
656 F.3d 126, 128-30 (1st Cir. 2011). “[A] procedural bar ruling” such as that “must stand in all
but exceptional circumstances.” Hodge v. Mendonsa, 739 F.3d 34, 44 (1st Cir. 2013); see Lee v.
Kemna, 534 U.S. 362, 376 (2002) (discussing “exceptional cases in which exorbitant application
of a generally sound rule renders the state ground inadequate”).

6 Because “[i]t is customary to address the procedural default issue on habeas first, . . . even
when the likely affirmance on the ultimate question . . . uphold[s] the state court judgment,” that
is the analytical approach this Court will apply here. Lynch v. Ficco, 438 F.3d 35, 46 n.10 (1st
Cir. 2006).
Here, the single justice concluded Brown’s claim was not “new,” as “the state of the
evidence, and trial counsel’s advice to the defendant, were both known when the defendant filed
his direct appeal, and the question of ineffectiveness could have been argued in that appeal.”
Doc. No. 1-1 at 9. Careful review of both parties’ submissions, including the record of all
pertinent state court proceedings, reveals nothing about the single justice’s conclusion or the

underlying facts of this case which even remotely approaches the sort of exceptional
circumstances required to justify a federal habeas court taking the rare step of “upset[ting] the
[state court’s] procedural default holding.” Hodge, 739 F.3d at 44.
At all relevant times, Brown knew what he believed trial counsel had advised him and
how that advice impacted his decision with respect to the plea offer.7 Nothing prevented him
from explaining that information to his appellate counsel or presenting it to the SJC on direct
review. That his conversations with trial counsel were privileged does not mean Brown himself
could not have disclosed the substance of those conversations to support a challenge to trial
counsel’s effectiveness on direct appeal (as he has done now). And, as the First Circuit

explained in upholding a finding of procedural default on facts directly analogous to those
presented here, to the extent Brown’s challenge to trial counsel’s effectiveness relied on facts
beyond the existing trial record, § 33E “authoriz[es] filing a new trial motion in the [SJC] while a
direct appeal is lodged there, with an opportunity to make a supplementary record to support it.”
Mendes v. Brady, 656 F.3d 126, 130 (1st Cir. 2011) (Souter, J.).

7 He also plainly knew, as did his appellate counsel, that the withdrawal defense trial counsel
presented at trial had not succeeded. Instead of challenging trial counsel’s pursuit of such a
defense, Brown’s direct appeal asserted that the trial court’s legal instruction explaining
withdrawal unfairly allocated to him a burden of persuasion. S.A. at 42.
Because Brown has provided “no sound reason” not to “accept the adequacy and
independence of the [SJC’s] application of the new-and-substantial rule to [his] ineffective
assistance claim,” the state court’s procedural bar ruling stands. Accordingly, Brown’s federal
claim is procedurally defaulted and subject to dismissal.8
B. Merits

Even if the single justice’s finding that Brown’s claim is not “new” were not a bar to this
Court’s review, his petition would fare no better on its merits. Both the motion court and the
single justice concluded the record did not support Brown’s assertion of ineffectiveness, as it
established trial counsel repeatedly and unambiguously urged Brown to accept the plea offer, and
provided a competent and accurate assessment of the likelihood that Brown would be convicted
of first-degree murder if he elected to proceed to trial. See Doc. No. 1-1 at 8-10 (assessing the
merits in the context of its conclusion that Brown’s claim was not “substantial”); Doc. No. 1-2 at
10 (rejecting Brown’s claim on its merits).
These conclusions were neither contrary to, nor an unreasonable application of,

Strickland, Lafler, or Frye, nor did they rest on unreasonable determinations of the facts. It
simply cannot be the case that a criminal defense lawyer, faced with a client who “vehemently”
insists on rejecting what he has urged is a favorable plea offer, Doc. No. 1-2 at 5, renders
constitutionally deficient assistance when he explains the theory of defense he would pursue if
compelled to defend the case at trial and also candidly explains his assessment of the theory’s
weaknesses, the strength of the prosecution’s evidence, and the overwhelming likelihood of
conviction by a jury. Indeed, the Supreme Court has explicitly declined “to elaborate or define

8 Brown has not attempted to show cause for his default, nor could he on the record before this
Court. Likewise, he has not asserted, let alone demonstrated, actual innocence. Accordingly,
there is no basis to excuse his procedural default.
detailed standards for the proper discharge of defense counsel’s” responsibilities in the plea
bargaining process, recognizing that “alternative courses and tactics in negotiation are so
individual that it may be neither prudent nor practicable” to establish such standards. Frye, 566
U.S. at 145. The absence of such clearly established standards is fatal to Brown’s claim.9
IV. CONCLUSION

It makes sense that Brown, with the benefit of hindsight, laments his decision to insist
upon a trial—a decision which ultimately cost him a chance at parole. But Brown’s
understandable regret does not render ineffective trial counsel’s reasonable and correct advice
with respect to the plea offer or his zealous effort to manufacture a defense where there was
none. Because his claim fails on its merits, Brown’s habeas petition is DENIED.10
SO ORDERED.

/s/ Leo T. Sorokin
United States District Judge

9 The SJC’s finding that the trial evidence could not have supported a finding of withdrawal does
not retroactively render trial counsel’s pretrial advice deficient. The record demonstrates that
trial counsel’s advice to Brown was not a promise “that his statement to the police would support
an abandonment defense,” as Brown now claims, Doc. No. 22 at 14 (emphasis added), but rather
a realistic assessment “that the only possible defense consistent with the defendant’s confession”
would be abandonment, as the state courts recounted, Doc. No. 1-2 at 4 (emphasis added).
Nothing about that guidance is legally incorrect. The Constitution does not require an attorney in
the position of Brown’s trial counsel to announce: “I don’t have a trial defense that I can mount
for you,” so “a plea is your only option.” Doc. No. 22 at 23 (quoting the transcript of post-
conviction counsel’s argument at the state court motion hearing). The decision whether to plead
guilty belongs solely to the defendant. If a defendant insists on a trial against his lawyer’s
advice, that lawyer is not only permitted, but ethically and constitutionally required, to zealously
defend his client at trial. And, in the hands of able counsel, armed with a jury instruction making
his theory of defense available to jurors, an acquittal might be “possible,” even if it is
exceedingly unlikely, and even if the defense theory is legally imperfect.
10 As “reasonable jurists” could not “debate whether . . . the petition should have been resolved
in a different manner,” Slack v. McDaniel, 529 U.S. 473, 484 (2000), no certificate of
appealability shall issue. No exceptional circumstances justify setting aside the procedural bar
the state court invoked with respect to Brown’s claim, and, in any event, the record is wholly
devoid of any factual or legal basis for finding Brown’s trial counsel performed deficiently in
advising Brown regarding the plea offer or in any other manner.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10196973. Public record. Not legal advice.