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.