Lafler v. Cooper

(Slip Opinion) OCTOBER TERM, 2011 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

LAFLER v. COOPER

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

No. 10–209. Argued October 31, 2011—Decided March 21, 2012

Respondent was charged under Michigan law with assault with intent

to murder and three other offenses. The prosecution offered to dis­

miss two of the charges and to recommend a 51-to-85-month sentence

on the other two, in exchange for a guilty plea. In a communication

with the court, respondent admitted his guilt and expressed a will­

ingness to accept the offer. But he rejected the offer, allegedly after

his attorney convinced him that the prosecution would be unable to

establish intent to murder because the victim had been shot below

the waist. At trial, respondent was convicted on all counts and re­

ceived a mandatory minimum 185-to-360-month sentence. In a sub­

sequent hearing, the state trial court rejected respondent’s claim that

his attorney’s advice to reject the plea constituted ineffective assis­

tance. The Michigan Court of Appeals affirmed, rejecting the ineffec­

tive-assistance claim on the ground that respondent knowingly and

intelligently turned down the plea offer and chose to go to trial. Re­

spondent renewed his claim in federal habeas. Finding that the state

appellate court had unreasonably applied the constitutional effective­

assistance standards laid out in Strickland v. Washington, 466 U. S.

668, and Hill v. Lockhart, 474 U. S. 52, the District Court granted a

conditional writ and ordered specific performance of the original plea

offer. The Sixth Circuit affirmed. Applying Strickland, it found that

counsel had provided deficient performance by advising respondent of

an incorrect legal rule, and that respondent suffered prejudice be­

cause he lost the opportunity to take the more favorable sentence of­

fered in the plea.

Held:

1. Where counsel’s ineffective advice led to an offer’s rejection, and

where the prejudice alleged is having to stand trial, a defendant must

2 LAFLER v. COOPER

Syllabus

show that but for the ineffective advice, there is a reasonable proba­

bility that the plea offer would have been presented to the court, that

the court would have accepted its terms, and that the conviction or

sentence, or both, under the offer’s terms would have been less severe

than under the actual judgment and sentence imposed. Pp. 3–11.

(a) Because the parties agree that counsel’s performance was de­

ficient, the only question is how to apply Strickland’s prejudice test

where ineffective assistance results in a rejection of the plea offer and

the defendant is convicted at the ensuing trial. Pp. 3–4.

(b) In that context, the Strickland prejudice test requires a de­

fendant to show a reasonable possibility that the outcome of the plea

process would have been different with competent advice. The Sixth

Circuit and other federal appellate courts have agreed with the

Strickland prejudice test for rejected pleas adopted here by this

Court. Petitioner and the Solicitor General propose a narrow view—

that Strickland prejudice cannot arise from plea bargaining if the de­

fendant is later convicted at a fair trial—but their reasoning is un­

persuasive. First, they claim that the Sixth Amendment’s sole pur­

pose is to protect the right to a fair trial, but the Amendment actually

requires effective assistance at critical stages of a criminal proceed­

ing, including pretrial stages. This is consistent with the right to ef­

fective assistance on appeal, see, e.g., Halbert v. Michigan, 545 U. S.

605, and the right to counsel during sentencing, see, e.g., Glover v.

United States, 531 U. S. 198, 203–204. This Court has not followed a

rigid rule that an otherwise fair trial remedies errors not occurring at

trial, but has instead inquired whether the trial cured the particular

error at issue. See, e.g., Vasquez v. Hillery, 474 U. S. 254, 263. Se­

cond, this Court has previously rejected petitioner’s argument that

Lockhart v. Fretwell, 506 U. S. 364, modified Strickland and does so

again here. Fretwell and Nix v. Whiteside, 475 U. S. 157, demon­

strate that “it would be unjust to characterize the likelihood of a dif­

ferent outcome as legitimate ‘prejudice,’ ” Williams v. Taylor, 529

U. S. 362, 391–392, where defendants would receive a windfall as a

result of the application of an incorrect legal principle or a defense

strategy outside the law. Here, however, respondent seeks relief

from counsel’s failure to meet a valid legal standard. Third, petition­

er seeks to preserve the conviction by arguing that the Sixth

Amendment’s purpose is to ensure a conviction’s reliability, but this

argument fails to comprehend the full scope of the Sixth Amendment

and is refuted by precedent. Here, the question is the fairness or re­

liability not of the trial but of the processes that preceded it, which

caused respondent to lose benefits he would have received but for

counsel’s ineffective assistance. Furthermore, a reliable trial may not

foreclose relief when counsel has failed to assert rights that may have

Cite as: 566 U. S. ____ (2012) 3

Syllabus

altered the outcome. See Kimmelman v. Morrison, 477 U. S. 365,

379. Petitioner’s position that a fair trial wipes clean ineffective as­

sistance during plea bargaining also ignores the reality that criminal

justice today is for the most part a system of pleas, not a system of

trials. See Missouri v. Frye, ante, at ___. Pp. 4–11.

2. Where a defendant shows ineffective assistance has caused the

rejection of a plea leading to a more severe sentence at trial, the rem­

edy must “neutralize the taint” of a constitutional violation, United

States v. Morrison, 449 U. S. 361, 365, but must not grant a windfall

to the defendant or needlessly squander the resources the State

properly invested in the criminal prosecution, see United States v.

Mechanik, 475 U. S. 66, 72. If the sole advantage is that the defend­

ant would have received a lesser sentence under the plea, the court

should have an evidentiary hearing to determine whether the de­

fendant would have accepted the plea. If so, the court may exercise

discretion in determining whether the defendant should receive the

term offered in the plea, the sentence received at trial, or something

in between. However, resentencing based on the conviction at trial

may not suffice, e.g., where the offered guilty plea was for less serious

counts than the ones for which a defendant was convicted after trial,

or where a mandatory sentence confines a judge’s sentencing discre­

tion. In these circumstances, the proper remedy may be to require

the prosecution to reoffer the plea. The judge can then exercise dis­

cretion in deciding whether to vacate the conviction from trial and

accept the plea, or leave the conviction undisturbed. In either situa­

tion, a court must weigh various factors. Here, it suffices to give two

relevant considerations. First, a court may take account of a defend­

ant’s earlier expressed willingness, or unwillingness, to accept re­

sponsibility for his or her actions. Second, it is not necessary here to

decide as a constitutional rule that a judge is required to disregard

any information concerning the crime discovered after the plea offer

was made. Petitioner argues that implementing a remedy will open

the floodgates to litigation by defendants seeking to unsettle their

convictions, but in the 30 years that courts have recognized such

claims, there has been no indication that the system is overwhelmed

or that defendants are receiving windfalls as a result of strategically

timed Strickland claims. In addition, the prosecution and trial courts

may adopt measures to help ensure against meritless claims. See

Frye, ante, at ___. Pp. 11–14.

3. This case arises under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), but because the Michigan Court of Ap­

peals’ analysis of respondent’s ineffective-assistance-of-counsel claim

was contrary to clearly established federal law, AEDPA presents no

bar to relief. Respondent has satisfied Strickland’s two-part test.

4 LAFLER v. COOPER

Syllabus

The parties concede the fact of deficient performance. And respond­

ent has shown that but for that performance there is a reasonable

probability he and the trial court would have accepted the guilty plea.

In addition, as a result of not accepting the plea and being convicted

at trial, he received a minimum sentence 3½ times greater than he

would have received under the plea. As a remedy, the District Court

ordered specific performance of the plea agreement, but the correct

remedy is to order the State to reoffer the plea. If respondent accepts

the offer, the state trial court can exercise its discretion in determin­

ing whether to vacate respondent’s convictions and resentence pur­

suant to the plea agreement, to vacate only some of the convictions

and resentence accordingly, or to leave the conviction and sentence

resulting from the trial undisturbed. Pp. 14–16.

376 Fed. Appx. 563, vacated and remanded.

KENNEDY, J., delivered the opinion of the Court, in which GINSBURG,

BREYER, SOTOMAYOR, and KAGAN, JJ., joined. SCALIA, J., filed a dissent­

ing opinion, in which THOMAS, J., joined, and in which ROBERTS, C. J.,

joined as to all but Part IV. ALITO, J., filed a dissenting opinion.

Cite as: 566 U. S. ____ (2012) 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. 10–209

_________________

BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 21, 2012]

JUSTICE KENNEDY delivered the opinion of the Court.

In this case, as in Missouri v. Frye, ante, p. ___, also

decided today, a criminal defendant seeks a remedy when

inadequate assistance of counsel caused nonacceptance of

a plea offer and further proceedings led to a less favorable

outcome. In Frye, defense counsel did not inform the

defendant of the plea offer; and after the offer lapsed the

defendant still pleaded guilty, but on more severe terms.

Here, the favorable plea offer was reported to the client

but, on advice of counsel, was rejected. In Frye there was

a later guilty plea. Here, after the plea offer had been

rejected, there was a full and fair trial before a jury. After

a guilty verdict, the defendant received a sentence harsher

than that offered in the rejected plea bargain. The instant

case comes to the Court with the concession that counsel’s

advice with respect to the plea offer fell below the stand­

ard of adequate assistance of counsel guaranteed by the

Sixth Amendment, applicable to the States through the

Fourteenth Amendment.

I

On the evening of March 25, 2003, respondent pointed a

gun toward Kali Mundy’s head and fired. From the rec­

2 LAFLER v. COOPER

Opinion of the Court

ord, it is unclear why respondent did this, and at trial it

was suggested that he might have acted either in self­

defense or in defense of another person. In any event the

shot missed and Mundy fled. Respondent followed in pur-

suit, firing repeatedly. Mundy was shot in her buttock,

hip, and abdomen but survived the assault.

Respondent was charged under Michigan law with as-

sault with intent to murder, possession of a firearm by a

felon, possession of a firearm in the commission of a fel-

ony, misdemeanor possession of marijuana, and for being a

habitual offender. On two occasions, the prosecution

offered to dismiss two of the charges and to recommend a

sentence of 51 to 85 months for the other two, in exchange

for a guilty plea. In a communication with the court re­

spondent admitted guilt and expressed a willingness to

accept the offer. Respondent, however, later rejected the

offer on both occasions, allegedly after his attorney con­

vinced him that the prosecution would be unable to estab­

lish his intent to murder Mundy because she had been

shot below the waist. On the first day of trial the prosecu­

tion offered a significantly less favorable plea deal, which

respondent again rejected. After trial, respondent was

convicted on all counts and received a mandatory mini­

mum sentence of 185 to 360 months’ imprisonment.

In a so-called Ginther hearing before the state trial

court, see People v. Ginther, 390 Mich. 436, 212 N. W. 2d

922 (1973), respondent argued his attorney’s advice to

reject the plea constituted ineffective assistance. The trial

judge rejected the claim, and the Michigan Court of Ap­

peals affirmed. People v. Cooper, No. 250583, 2005 WL

599740 (Mar. 15, 2005) (per curiam), App. to Pet. for Cert.

44a. The Michigan Court of Appeals rejected the claim

of ineffective assistance of counsel on the ground that re-

spondent knowingly and intelligently rejected two plea

offers and chose to go to trial. The Michigan Supreme

Court denied respondent’s application for leave to file an

Cite as: 566 U. S. ____ (2012) 3

Opinion of the Court

appeal. People v. Cooper, 474 Mich. 905, 705 N. W. 2d 118

(2005) (table).

Respondent then filed a petition for federal habeas relief

under 28 U. S. C. §2254, renewing his ineffective­

assistance-of-counsel claim. After finding, as required by

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), that the Michigan Court of Appeals had un-

reasonably applied the constitutional standards for effective

assistance of counsel laid out in Strickland v. Washington,

466 U. S. 668 (1984), and Hill v. Lockhart, 474 U. S. 52

(1985), the District Court granted a conditional writ.

Cooper v. Lafler, No. 06–11068, 2009 WL 817712, *10 (ED

Mich., Mar. 26, 2009), App. to Pet. for Cert. 41a–42a. To

remedy the violation, the District Court ordered “specific

performance of [respondent’s] original plea agreement, for

a minimum sentence in the range of fifty-one to eighty-five

months.” Id., at *9, App. to Pet. for Cert. 41a.

The United States Court of Appeals for the Sixth Circuit

affirmed, 376 Fed. Appx. 563 (2010), finding “[e]ven full

deference under AEDPA cannot salvage the state court’s

decision,” id., at 569. Applying Strickland, the Court of

Appeals found that respondent’s attorney had provided

deficient performance by informing respondent of “an

incorrect legal rule,” 376 Fed. Appx., at 570–571, and that

respondent suffered prejudice because he “lost out on an

opportunity to plead guilty and receive the lower sentence

that was offered to him.” Id., at 573. This Court granted

certiorari. 562 U. S. ___ (2011).

II

A

Defendants have a Sixth Amendment right to counsel,

a right that extends to the plea-bargaining process. Frye,

ante, at 8; see also Padilla v. Kentucky, 559 U. S. ___, ___

(2010) (slip op., at 16); Hill, supra, at 57. During plea

negotiations defendants are “entitled to the effective assis­

4 LAFLER v. COOPER

Opinion of the Court

tance of competent counsel.” McMann v. Richardson, 397

U. S. 759, 771 (1970). In Hill, the Court held “the two­

part Strickland v. Washington test applies to challenges to

guilty pleas based on ineffective assistance of counsel.”

474 U. S., at 58. The performance prong of Strickland

requires a defendant to show “ ‘that counsel’s representa­

tion fell below an objective standard of reasonableness.’ ”

474 U. S., at 57 (quoting Strickland, 466 U. S., at 688). In

this case all parties agree the performance of respondent’s

counsel was deficient when he advised respondent to reject

the plea offer on the grounds he could not be convicted at

trial. In light of this concession, it is unnecessary for this

Court to explore the issue.

The question for this Court is how to apply Strickland’s

prejudice test where ineffective assistance results in a re-

jection of the plea offer and the defendant is convicted at

the ensuing trial.

B

To establish Strickland prejudice a defendant must

“show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceed­

ing would have been different.” Id., at 694. In the context

of pleas a defendant must show the outcome of the plea

process would have been different with competent advice.

See Frye, ante, at 12 (noting that Strickland’s inquiry, as

applied to advice with respect to plea bargains, turns on

“whether ‘the result of the proceeding would have been

different’ ” (quoting Strickland, supra, at 694)); see also

Hill, 474 U. S., at 59 (“The . . . ‘prejudice,’ requirement . . .

focuses on whether counsel’s constitutionally ineffective

performance affected the outcome of the plea process”). In

Hill, when evaluating the petitioner’s claim that ineffec­

tive assistance led to the improvident acceptance of a

guilty plea, the Court required the petitioner to show “that

there is a reasonable probability that, but for counsel’s

Cite as: 566 U. S. ____ (2012) 5

Opinion of the Court

errors, [the defendant] would not have pleaded guilty and

would have insisted on going to trial.” Ibid.

In contrast to Hill, here the ineffective advice led not to

an offer’s acceptance but to its rejection. Having to stand

trial, not choosing to waive it, is the prejudice alleged. In

these circumstances a defendant must show that but for

the ineffective advice of counsel there is a reasonable prob-

ability that the plea offer would have been presented

to the court (i.e., that the defendant would have accepted

the plea and the prosecution would not have withdrawn it

in light of intervening circumstances), that the court

would have accepted its terms, and that the conviction or

sentence, or both, under the offer’s terms would have been

less severe than under the judgment and sentence that in

fact were imposed. Here, the Court of Appeals for the

Sixth Circuit agreed with that test for Strickland preju­

dice in the context of a rejected plea bargain. This is

consistent with the test adopted and applied by other

appellate courts without demonstrated difficulties or

systemic disruptions. See 376 Fed. Appx., at 571–573; see

also, e.g., United States v. Rodriguez Rodriguez, 929 F. 2d

747, 753, n. 1 (CA1 1991) (per curiam); United States v.

Gordon, 156 F. 3d 376, 380–381 (CA2 1998) (per curiam);

United States v. Day, 969 F. 2d 39, 43–45 (CA3 1992);

Beckham v. Wainwright, 639 F. 2d 262, 267 (CA5 1981);

Julian v. Bartley, 495 F. 3d 487, 498–500 (CA7 2007);

Wanatee v. Ault, 259 F. 3d 700, 703–704 (CA8 2001);

Nunes v. Mueller, 350 F. 3d 1045, 1052–1053 (CA9 2003);

Williams v. Jones, 571 F. 3d 1086, 1094–1095 (CA10 2009)

(per curiam); United States v. Gaviria, 116 F. 3d 1498,

1512–1514 (CADC 1997) (per curiam).

Petitioner and the Solicitor General propose a different,

far more narrow, view of the Sixth Amendment. They

contend there can be no finding of Strickland prejudice

arising from plea bargaining if the defendant is later

convicted at a fair trial. The three reasons petitioner and

6 LAFLER v. COOPER

Opinion of the Court

the Solicitor General offer for their approach are unper­

suasive.

First, petitioner and the Solicitor General claim that

the sole purpose of the Sixth Amendment is to protect the

right to a fair trial. Errors before trial, they argue, are not

cognizable under the Sixth Amendment unless they affect

the fairness of the trial itself. See Brief for Petitioner 12–

21; Brief for United States as Amicus Curiae 10–12. The

Sixth Amendment, however, is not so narrow in its reach.

Cf. Frye, ante, at 11 (holding that a defendant can show

prejudice under Strickland even absent a showing that the

deficient performance precluded him from going to trial).

The Sixth Amendment requires effective assistance of

counsel at critical stages of a criminal proceeding. Its

protections are not designed simply to protect the trial,

even though “counsel’s absence [in these stages] may

derogate from the accused’s right to a fair trial.” United

States v. Wade, 388 U. S. 218, 226 (1967). The constitu­

tional guarantee applies to pretrial critical stages that are

part of the whole course of a criminal proceeding, a pro­

ceeding in which defendants cannot be presumed to make

critical decisions without counsel’s advice. This is con­

sistent, too, with the rule that defendants have a right to

effective assistance of counsel on appeal, even though that

cannot in any way be characterized as part of the trial.

See, e.g., Halbert v. Michigan, 545 U. S. 605 (2005); Evitts

v. Lucey, 469 U. S. 387 (1985). The precedents also estab­

lish that there exists a right to counsel during sentencing

in both noncapital, see Glover v. United States, 531 U. S.

198, 203–204 (2001); Mempa v. Rhay, 389 U. S. 128

(1967), and capital cases, see Wiggins v. Smith, 539 U. S.

510, 538 (2003). Even though sentencing does not concern

the defendant’s guilt or innocence, ineffective assistance of

counsel during a sentencing hearing can result in Strick-

land prejudice because “any amount of [additional] jail

time has Sixth Amendment significance.” Glover, supra,

Cite as: 566 U. S. ____ (2012) 7

Opinion of the Court

at 203.

The Court, moreover, has not followed a rigid rule that

an otherwise fair trial remedies errors not occurring at the

trial itself. It has inquired instead whether the trial cured

the particular error at issue. Thus, in Vasquez v. Hillery,

474 U. S. 254 (1986), the deliberate exclusion of all

African-Americans from a grand jury was prejudicial be-

cause a defendant may have been tried on charges that

would not have been brought at all by a properly constituted

grand jury. Id., at 263; see Ballard v. United States, 329

U. S. 187, 195 (1946) (dismissing an indictment returned

by a grand jury from which women were excluded); see

also Stirone v. United States, 361 U. S. 212, 218–219

(1960) (reversing a defendant’s conviction because the jury

may have based its verdict on acts not charged in the

indictment). By contrast, in United States v. Mechanik,

475 U. S. 66 (1986), the complained-of error was a viola­

tion of a grand jury rule meant to ensure probable cause

existed to believe a defendant was guilty. A subsequent

trial, resulting in a verdict of guilt, cured this error. See

id., at 72–73.

In the instant case respondent went to trial rather than

accept a plea deal, and it is conceded this was the result of

ineffective assistance during the plea negotiation process.

Respondent received a more severe sentence at trial, one

3½ times more severe than he likely would have received

by pleading guilty. Far from curing the error, the trial

caused the injury from the error. Even if the trial itself is

free from constitutional flaw, the defendant who goes to

trial instead of taking a more favorable plea may be preju­

diced from either a conviction on more serious counts or

the imposition of a more severe sentence.

Second, petitioner claims this Court refined Strickland’s

prejudice analysis in Fretwell to add an additional re­

quirement that the defendant show that ineffective assis­

tance of counsel led to his being denied a substantive or

8 LAFLER v. COOPER

Opinion of the Court

procedural right. Brief for Petitioner 12–13. The Court

has rejected the argument that Fretwell modified Strick-

land before and does so again now. See Williams v. Tay-

lor, 529 U. S. 362, 391 (2000) (“The Virginia Supreme

Court erred in holding that our decision in Lockhart v.

Fretwell, 506 U. S. 364 (1993), modified or in some way

supplanted the rule set down in Strickland”); see also

Glover, supra, at 203 (“The Court explained last Term [in

Williams] that our holding in Lockhart does not supplant

the Strickland analysis”).

Fretwell could not show Strickland prejudice resulting

from his attorney’s failure to object to the use of a sentenc­

ing factor the Eighth Circuit had erroneously (and tempo­

rarily) found to be impermissible. Fretwell, 506 U. S., at

373. Because the objection upon which his ineffective­

assistance-of-counsel claim was premised was meritless,

Fretwell could not demonstrate an error entitling him to

relief. The case presented the “unusual circumstance

where the defendant attempts to demonstrate prejudice

based on considerations that, as a matter of law, ought not

inform the inquiry.” Ibid. (O’Connor, J., concurring). See

also ibid. (recognizing “[t]he determinative question—

whether there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceed­

ing would have been different—remains unchanged” (in­

ternal quotation marks and citation omitted)). It is for

this same reason a defendant cannot show prejudice based

on counsel’s refusal to present perjured testimony, even if

such testimony might have affected the outcome of the

case. See Nix v. Whiteside, 475 U. S. 157, 175 (1986)

(holding first that counsel’s refusal to present perjured

testimony breached no professional duty and second that

it cannot establish prejudice under Strickland).

Both Fretwell and Nix are instructive in that they

demonstrate “there are also situations in which it would

be unjust to characterize the likelihood of a different

Cite as: 566 U. S. ____ (2012) 9

Opinion of the Court

outcome as legitimate ‘prejudice,’ ” Williams, supra, at

391–392, because defendants would receive a windfall as a

result of the application of an incorrect legal principle or

a defense strategy outside the law. Here, however, the

injured client seeks relief from counsel’s failure to meet a

valid legal standard, not from counsel’s refusal to violate

it. He maintains that, absent ineffective counsel, he would

have accepted a plea offer for a sentence the prosecution

evidently deemed consistent with the sound administra­

tion of criminal justice. The favorable sentence that elud­

ed the defendant in the criminal proceeding appears to be

the sentence he or others in his position would have re­

ceived in the ordinary course, absent the failings of coun­

sel. See Bibas, Regulating the Plea-Bargaining Market:

From Caveat Emptor to Consumer Protection, 99 Cal. L.

Rev. 1117, 1138 (2011) (“The expected post-trial sentence

is imposed in only a few percent of cases. It is like the

sticker price for cars: only an ignorant, ill-advised con­

sumer would view full price as the norm and anything less

a bargain”); see also Frye, ante, at 7–8. If a plea bargain

has been offered, a defendant has the right to effective

assistance of counsel in considering whether to accept it.

If that right is denied, prejudice can be shown if loss of the

plea opportunity led to a trial resulting in a conviction on

more serious charges or the imposition of a more severe

sentence.

It is, of course, true that defendants have “no right to be

offered a plea . . . nor a federal right that the judge accept

it.” Frye, ante, at 12. In the circumstances here, that is

beside the point. If no plea offer is made, or a plea deal

is accepted by the defendant but rejected by the judge, the

issue raised here simply does not arise. Much the same

reasoning guides cases that find criminal defendants have

a right to effective assistance of counsel in direct appeals

even though the Constitution does not require States to

provide a system of appellate review at all. See Evitts, 469

10 LAFLER v. COOPER

Opinion of the Court

U. S. 387; see also Douglas v. California, 372 U. S. 353

(1963). As in those cases, “[w]hen a State opts to act in a

field where its action has significant discretionary ele­

ments, it must nonetheless act in accord with the dictates

of the Constitution.” Evitts, supra, at 401.

Third, petitioner seeks to preserve the conviction ob­

tained by the State by arguing that the purpose of the

Sixth Amendment is to ensure “the reliability of [a] convic­

tion following trial.” Brief for Petitioner 13. This argu­

ment, too, fails to comprehend the full scope of the Sixth

Amendment’s protections; and it is refuted by precedent.

Strickland recognized “[t]he benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct

so undermined the proper functioning of the adversarial

process that the trial cannot be relied on as having pro­

duced a just result.” 466 U. S., at 686. The goal of a just

result is not divorced from the reliability of a conviction,

see United States v. Cronic, 466 U. S. 648, 658 (1984); but

here the question is not the fairness or reliability of the

trial but the fairness and regularity of the processes that

preceded it, which caused the defendant to lose benefits he

would have received in the ordinary course but for coun­

sel’s ineffective assistance.

There are instances, furthermore, where a reliable trial

does not foreclose relief when counsel has failed to assert

rights that may have altered the outcome. In Kimmelman

v. Morrison, 477 U. S. 365 (1986), the Court held that an

attorney’s failure to timely move to suppress evidence

during trial could be grounds for federal habeas relief.

The Court rejected the suggestion that the “failure to

make a timely request for the exclusion of illegally seized

evidence” could not be the basis for a Sixth Amendment

violation because the evidence “is ‘typically reliable and

often the most probative information bearing on the guilt

or innocence of the defendant.’ ” Id., at 379 (quoting Stone

v. Powell, 428 U. S. 465, 490 (1976)). “The constitutional

Cite as: 566 U. S. ____ (2012) 11

Opinion of the Court

rights of criminal defendants,” the Court observed, “are

granted to the innocent and the guilty alike. Consequent­

ly, we decline to hold either that the guarantee of effective

assistance of counsel belongs solely to the innocent or that

it attaches only to matters affecting the determination of

actual guilt.” 477 U. S., at 380. The same logic applies

here. The fact that respondent is guilty does not mean

he was not entitled by the Sixth Amendment to effective

assistance or that he suffered no prejudice from his attor­

ney’s deficient performance during plea bargaining.

In the end, petitioner’s three arguments amount to one

general contention: A fair trial wipes clean any deficient

performance by defense counsel during plea bargaining.

That position ignores the reality that criminal justice

today is for the most part a system of pleas, not a system

of trials. Ninety-seven percent of federal convictions and

ninety-four percent of state convictions are the result of

guilty pleas. See Frye, ante, at 7. As explained in Frye,

the right to adequate assistance of counsel cannot be

defined or enforced without taking account of the central

role plea bargaining plays in securing convictions and

determining sentences. Ibid. (“[I]t is insufficient simply

to point to the guarantee of a fair trial as a backstop that

inoculates any errors in the pretrial process”).

C

Even if a defendant shows ineffective assistance of

counsel has caused the rejection of a plea leading to a trial

and a more severe sentence, there is the question of what

constitutes an appropriate remedy. That question must

now be addressed.

Sixth Amendment remedies should be “tailored to the

injury suffered from the constitutional violation and

should not unnecessarily infringe on competing interests.”

United States v. Morrison, 449 U. S. 361, 364 (1981).

Thus, a remedy must “neutralize the taint” of a constitu­

12 LAFLER v. COOPER

Opinion of the Court

tional violation, id., at 365, while at the same time not

grant a windfall to the defendant or needlessly squander

the considerable resources the State properly invested in

the criminal prosecution. See Mechanik, 475 U. S., at 72

(“The reversal of a conviction entails substantial social

costs: it forces jurors, witnesses, courts, the prosecution,

and the defendants to expend further time, energy, and

other resources to repeat a trial that has already once

taken place; victims may be asked to relive their disturb­

ing experiences”).

The specific injury suffered by defendants who decline a

plea offer as a result of ineffective assistance of counsel

and then receive a greater sentence as a result of trial can

come in at least one of two forms. In some cases, the sole

advantage a defendant would have received under the plea

is a lesser sentence. This is typically the case when the

charges that would have been admitted as part of the plea

bargain are the same as the charges the defendant was

convicted of after trial. In this situation the court may

conduct an evidentiary hearing to determine whether the

defendant has shown a reasonable probability that but for

counsel’s errors he would have accepted the plea. If the

showing is made, the court may exercise discretion in

determining whether the defendant should receive the

term of imprisonment the government offered in the plea,

the sentence he received at trial, or something in between.

In some situations it may be that resentencing alone

will not be full redress for the constitutional injury. If, for

example, an offer was for a guilty plea to a count or counts

less serious than the ones for which a defendant was

convicted after trial, or if a mandatory sentence confines a

judge’s sentencing discretion after trial, a resentencing

based on the conviction at trial may not suffice. See, e.g.,

Williams, 571 F. 3d, at 1088; Riggs v. Fairman, 399 F. 3d

1179, 1181 (CA9 2005). In these circumstances, the

proper exercise of discretion to remedy the constitutional

Cite as: 566 U. S. ____ (2012) 13

Opinion of the Court

injury may be to require the prosecution to reoffer the plea

proposal. Once this has occurred, the judge can then

exercise discretion in deciding whether to vacate the con­

viction from trial and accept the plea or leave the convic­

tion undisturbed.

In implementing a remedy in both of these situations,

the trial court must weigh various factors; and the bound­

aries of proper discretion need not be defined here. Prin­

ciples elaborated over time in decisions of state and feder­

al courts, and in statutes and rules, will serve to give more

complete guidance as to the factors that should bear upon

the exercise of the judge’s discretion. At this point, how­

ever, it suffices to note two considerations that are of

relevance.

First, a court may take account of a defendant’s earlier

expressed willingness, or unwillingness, to accept respon­

sibility for his or her actions. Second, it is not necessary

here to decide as a constitutional rule that a judge is re-

quired to prescind (that is to say disregard) any infor­

mation concerning the crime that was discovered after the

plea offer was made. The time continuum makes it diffi­

cult to restore the defendant and the prosecution to the

precise positions they occupied prior to the rejection of the

plea offer, but that baseline can be consulted in finding a

remedy that does not require the prosecution to incur the

expense of conducting a new trial.

Petitioner argues that implementing a remedy here will

open the floodgates to litigation by defendants seeking to

unsettle their convictions. See Brief for Petitioner 20.

Petitioner’s concern is misplaced. Courts have recognized

claims of this sort for over 30 years, see supra, at 5, and

yet there is no indication that the system is overwhelmed

by these types of suits or that defendants are receiving

windfalls as a result of strategically timed Strickland

claims. See also Padilla, 559 U. S., at ___ (slip op., at 14)

(“We confronted a similar ‘floodgates’ concern in Hill,” but

14 LAFLER v. COOPER

Opinion of the Court

a “flood did not follow in that decision’s wake”). In addi­

tion, the “prosecution and the trial courts may adopt some

measures to help ensure against late, frivolous, or fabri­

cated claims after a later, less advantageous plea offer

has been accepted or after a trial leading to conviction.”

Frye, ante, at 10. See also ibid. (listing procedures cur­

rently used by various States). This, too, will help ensure

against meritless claims.

III

The standards for ineffective assistance of counsel when

a defendant rejects a plea offer and goes to trial must now

be applied to this case. Respondent brings a federal col­

lateral challenge to a state-court conviction. Under

AEDPA, a federal court may not grant a petition for a writ

of habeas corpus unless the state court’s adjudication on

the merits was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as deter­

mined by the Supreme Court of the United States.” 28

U. S. C. §2254(d)(1). A decision is contrary to clearly

established law if the state court “applies a rule that con-

tradicts the governing law set forth in [Supreme Court]

cases.” Williams v. Taylor, 529 U. S. 362, 405 (2000)

(opinion for the Court by O’Connor, J.). The Court of

Appeals for the Sixth Circuit could not determine whether

the Michigan Court of Appeals addressed respondent’s

ineffective-assistance-of-counsel claim or, if it did, “what

the court decided, or even whether the correct legal rule

was identified.” 376 Fed. Appx., at 568–569.

The state court’s decision may not be quite so opaque as

the Court of Appeals for the Sixth Circuit thought, yet the

federal court was correct to note that AEDPA does not

present a bar to granting respondent relief. That is be­

cause the Michigan Court of Appeals identified respond­

ent’s ineffective-assistance-of-counsel claim but failed to

apply Strickland to assess it. Rather than applying

Cite as: 566 U. S. ____ (2012) 15

Opinion of the Court

Strickland, the state court simply found that respondent’s

rejection of the plea was knowing and voluntary. Cooper,

2005 WL 599740, *1, App. to Pet. for Cert. 45a. An in­

quiry into whether the rejection of a plea is knowing and

voluntary, however, is not the correct means by which to

address a claim of ineffective assistance of counsel. See

Hill, 474 U. S., at 370 (applying Strickland to assess a

claim of ineffective assistance of counsel arising out of

the plea negotiation process). After stating the incorrect

standard, moreover, the state court then made an irrele­

vant observation about counsel’s performance at trial and

mischaracterized respondent’s claim as a complaint that

his attorney did not obtain a more favorable plea bargain.

By failing to apply Strickland to assess the ineffective­

assistance-of-counsel claim respondent raised, the state

court’s adjudication was contrary to clearly established

federal law. And in that circumstance the federal courts

in this habeas action can determine the principles neces­

sary to grant relief. See Panetti v. Quarterman, 551 U. S.

930, 948 (2007).

Respondent has satisfied Strickland’s two-part test.

Regarding performance, perhaps it could be accepted that

it is unclear whether respondent’s counsel believed re­

spondent could not be convicted for assault with intent to

murder as a matter of law because the shots hit Mundy

below the waist, or whether he simply thought this would

be a persuasive argument to make to the jury to show lack

of specific intent. And, as the Court of Appeals for the

Sixth Circuit suggested, an erroneous strategic prediction

about the outcome of a trial is not necessarily deficient

performance. Here, however, the fact of deficient perfor­

mance has been conceded by all parties. The case comes to

us on that assumption, so there is no need to address this

question.

As to prejudice, respondent has shown that but for

counsel’s deficient performance there is a reasonable

16 LAFLER v. COOPER

Opinion of the Court

probability he and the trial court would have accepted the

guilty plea. See 376 Fed. Appx., at 571–572. In addition,

as a result of not accepting the plea and being convicted at

trial, respondent received a minimum sentence 3½ times

greater than he would have received under the plea. The

standard for ineffective assistance under Strickland has

thus been satisfied.

As a remedy, the District Court ordered specific perfor­

mance of the original plea agreement. The correct remedy

in these circumstances, however, is to order the State to

reoffer the plea agreement. Presuming respondent accepts

the offer, the state trial court can then exercise its discre­

tion in determining whether to vacate the convictions and

resentence respondent pursuant to the plea agreement, to

vacate only some of the convictions and resentence re­

spondent accordingly, or to leave the convictions and

sentence from trial undisturbed. See Mich. Ct. Rule

6.302(C)(3) (2011) (“If there is a plea agreement and its

terms provide for the defendant’s plea to be made in ex­

change for a specific sentence disposition or a prosecuto-

rial sentence recommendation, the court may . . . reject

the agreement”). Today’s decision leaves open to the trial

court how best to exercise that discretion in all the cir­

cumstances of the case.

The judgment of the Court of Appeals for the Sixth

Circuit is vacated, and the case is remanded for further

proceedings consistent with this opinion.

It is so ordered.

Cite as: 566 U. S. ____ (2012) 1

SCALIA, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–209

_________________

BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 21, 2012]

JUSTICE SCALIA, with whom JUSTICE THOMAS joins, and

with whom THE CHIEF JUSTICE joins as to all but Part IV,

dissenting.

“If a plea bargain has been offered, a defendant has

the right to effective assistance of counsel in consider-

ing whether to accept it. If that right is denied, preju-

dice can be shown if loss of the plea opportunity led

to a trial resulting in a conviction on more serious

charges or the imposition of a more severe sentence.”

Ante, at 9.

“The inquiry then becomes how to define the duty

and responsibilities of defense counsel in the plea bar-

gain process. This is a difficult question. . . . Bargain-

ing is, by its nature, defined to a substantial degree by

personal style. . . . This case presents neither the ne-

cessity nor the occasion to define the duties of defense

counsel in those respects . . . .” Missouri v. Frye, ante,

at 8.

With those words from this and the companion case, the

Court today opens a whole new field of constitutionalized

criminal procedure: plea-bargaining law. The ordinary

criminal process has become too long, too expensive, and

unpredictable, in no small part as a consequence of an

intricate federal Code of Criminal Procedure imposed on

the States by this Court in pursuit of perfect justice. See

2 LAFLER v. COOPER

SCALIA, J., dissenting

Friendly, The Bill of Rights as a Code of Criminal Proce­

dure, 53 Cal. L. Rev. 929 (1965). The Court now moves to

bring perfection to the alternative in which prosecutors

and defendants have sought relief. Today’s opinions deal

with only two aspects of counsel’s plea-bargaining in­

adequacy, and leave other aspects (who knows what they

might be?) to be worked out in further constitutional

litigation that will burden the criminal process. And it

would be foolish to think that “constitutional” rules gov­

erning counsel’s behavior will not be followed by rules

governing the prosecution’s behavior in the plea­

bargaining process that the Court today announces “ ‘is the

criminal justice system,’ ” Frye, ante, at 7 (quoting approv­

ingly from Scott & Stuntz, Plea Bargaining as Contract,

101 Yale L. J. 1909, 1912 (1992) (hereinafter Scott)). Is it

constitutional, for example, for the prosecution to with­

draw a plea offer that has already been accepted? Or to

withdraw an offer before the defense has had adequate

time to consider and accept it? Or to make no plea offer at

all, even though its case is weak—thereby excluding the

defendant from “the criminal justice system”?

Anthony Cooper received a full and fair trial, was found

guilty of all charges by a unanimous jury, and was given

the sentence that the law prescribed. The Court nonethe­

less concludes that Cooper is entitled to some sort of ha­

beas corpus relief (perhaps) because his attorney’s allegedly

incompetent advice regarding a plea offer caused him to

receive a full and fair trial. That conclusion is foreclosed

by our precedents. Even if it were not foreclosed, the

constitutional right to effective plea-bargainers that it

establishes is at least a new rule of law, which does not

undermine the Michigan Court of Appeals’ decision and

therefore cannot serve as the basis for habeas relief. And

the remedy the Court announces—namely, whatever the

state trial court in its discretion prescribes, down to and

including no remedy at all—is unheard-of and quite ab­

Cite as: 566 U. S. ____ (2012) 3

SCALIA, J., dissenting

surd for violation of a constitutional right. I respectfully

dissent.

I

This case and its companion, Missouri v. Frye, ante,

p. ___, raise relatively straightforward questions about the

scope of the right to effective assistance of counsel. Our

case law originally derived that right from the Due Pro­

cess Clause, and its guarantee of a fair trial, see United

States v. Gonzalez-Lopez, 548 U. S. 140, 147 (2006), but

the seminal case of Strickland v. Washington, 466 U. S.

668 (1984), located the right within the Sixth Amendment.

As the Court notes, ante, at 6, the right to counsel does not

begin at trial. It extends to “any stage of the prosecution,

formal or informal, in court or out, where counsel’s ab­

sence might derogate from the accused’s right to a fair

trial.” United States v. Wade, 388 U. S. 218, 226 (1967).

Applying that principle, we held that the “entry of a guilty

plea, whether to a misdemeanor or a felony charge, ranks

as a ‘critical stage’ at which the right to counsel adheres.”

Iowa v. Tovar, 541 U. S. 77, 81 (2004); see also Hill v.

Lockhart, 474 U. S. 52, 58 (1985). And it follows from this

that acceptance of a plea offer is a critical stage. That, and

nothing more, is the point of the Court’s observation in

Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at

16), that “the negotiation of a plea bargain is a critical

phase of litigation for purposes of the Sixth Amendment

right to effective assistance of counsel.” The defendant in

Padilla had accepted the plea bargain and pleaded guilty,

abandoning his right to a fair trial; he was entitled to

advice of competent counsel before he did so. The Court

has never held that the rule articulated in Padilla, Tovar,

and Hill extends to all aspects of plea negotiations, requir­

ing not just advice of competent counsel before the defend­

ant accepts a plea bargain and pleads guilty, but also the

advice of competent counsel before the defendant rejects a

4 LAFLER v. COOPER

SCALIA, J., dissenting

plea bargain and stands on his constitutional right to a

fair trial. The latter is a vast departure from our past

cases, protecting not just the constitutionally prescribed

right to a fair adjudication of guilt and punishment, but a

judicially invented right to effective plea bargaining.

It is also apparent from Strickland that bad plea bar­

gaining has nothing to do with ineffective assistance of

counsel in the constitutional sense. Strickland explained

that “[i]n giving meaning to the requirement [of effective

assistance], . . . we must take its purpose—to ensure a fair

trial—as the guide.” 466 U. S., at 686. Since “the right to

the effective assistance of counsel is recognized not for its

own sake, but because of the effect it has on the ability of

the accused to receive a fair trial,” United States v. Cronic,

466 U. S. 648, 658 (1984), the “benchmark” inquiry in

evaluating any claim of ineffective assistance is whether

counsel’s performance “so undermined the proper func­

tioning of the adversarial process” that it failed to produce

a reliably “just result.” Strickland, 466 U. S., at 686.

That is what Strickland’s requirement of “prejudice” con­

sists of: Because the right to effective assistance has as its

purpose the assurance of a fair trial, the right is not in­

fringed unless counsel’s mistakes call into question the

basic justice of a defendant’s conviction or sentence. That

has been, until today, entirely clear. A defendant must

show “that counsel’s errors were so serious as to deprive

the defendant of a fair trial, a trial whose result is relia­

ble.” Id., at 687. See also Gonzalez-Lopez, supra, at 147.

Impairment of fair trial is how we distinguish between

unfortunate attorney error and error of constitutional

significance.1

——————

1 Rather than addressing the constitutional origins of the right to

effective counsel, the Court responds to the broader claim (raised by no

one) that “the sole purpose of the Sixth Amendment is to protect the

right to a fair trial.” Ante, at 6 (emphasis added). Cf. Brief for United

States as Amicus Curiae 10–12 (arguing that the “purpose of the Sixth

Cite as: 566 U. S. ____ (2012) 5

SCALIA, J., dissenting

To be sure, Strickland stated a rule of thumb for meas­

uring prejudice which, applied blindly and out of context,

could support the Court’s holding today: “The defendant

must show that there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the pro­

ceeding would have been different.” 466 U. S., at 694.

Strickland itself cautioned, however, that its test was not

to be applied in a mechanical fashion, and that courts

were not to divert their “ultimate focus” from “the funda­

mental fairness of the proceeding whose result is being

challenged.” Id., at 696. And until today we have followed

that course.

In Lockhart v. Fretwell, 506 U. S. 364 (1993), the defi­

cient performance at issue was the failure of counsel for a

defendant who had been sentenced to death to make an

objection that would have produced a sentence of life

——————

Amendment right to counsel is to secure a fair trial” (emphasis added));

Brief for Petitioner 12–21 (same). To destroy that straw man, the

Court cites cases in which violations of rights other than the right to

effective counsel—and, perplexingly, even rights found outside the

Sixth Amendment and the Constitution entirely—were not cured by a

subsequent trial. Vasquez v. Hillery, 474 U. S. 254 (1986) (violation of

equal protection in grand jury selection); Ballard v. United States, 329

U. S. 187 (1946) (violation of statutory scheme providing that women

serve on juries); Stirone v. United States, 361 U. S. 212 (1960) (violation

of Fifth Amendment right to indictment by grand jury). Unlike the

right to effective counsel, no showing of prejudice is required to make

violations of the rights at issue in Vasquez, Ballard, and Stirone com­

plete. See Vasquez, supra, at 263–264 (“[D]iscrimination in the grand

jury undermines the structural integrity of the criminal tribunal itself,

and is not amenable to harmless-error review”); Ballard, supra, at 195

(“[R]eversible error does not depend on a showing of prejudice in an

individual case”); Stirone, supra, at 217 (“Deprivation of such a basic

right is far too serious to be treated as nothing more than a variance

and then dismissed as harmless error”). Those cases are thus irrele­

vant to the question presented here, which is whether a defendant can

establish prejudice under Strickland v. Washington, 466 U. S. 668

(1984), while conceding the fairness of his conviction, sentence, and

appeal.

6 LAFLER v. COOPER

SCALIA, J., dissenting

imprisonment instead. The objection was fully supported

by then-extant Circuit law, so that the sentencing court

would have been compelled to sustain it, producing a life

sentence that principles of double jeopardy would likely

make final. See id., at 383–385 (Stevens, J., dissenting);

Bullington v. Missouri, 451 U. S. 430 (1981). By the time

Fretwell’s claim came before us, however, the Circuit law

had been overruled in light of one of our cases. We deter­

mined that a prejudice analysis “focusing solely on mere

outcome determination, without attention to whether the

result of the proceeding was fundamentally unfair or

unreliable,” would be defective. Fretwell, 506 U. S., at

369. Because counsel’s error did not “deprive the defend­

ant of any substantive or procedural right to which the

law entitles him,” the defendant’s sentencing proceeding

was fair and its result was reliable, even though counsel’s

error may have affected its outcome. Id., at 372. In Wil-

liams v. Taylor, 529 U. S. 362, 391–393 (2000), we ex­

plained that even though Fretwell did not mechanically

apply an outcome-based test for prejudice, its reasoning

was perfectly consistent with Strickland. “Fretwell’s

counsel had not deprived him of any substantive or pro­

cedural right to which the law entitled him.” 529 U. S.

at 392.2

——————

2 Kimmelman v. Morrison, 477 U. S. 365 (1986), cited by the Court,

ante, at 10–11, does not contradict this principle. That case, which

predated Fretwell and Williams, considered whether our holding that

Fourth Amendment claims fully litigated in state court cannot be

raised in federal habeas “should be extended to Sixth Amendment

claims of ineffective assistance of counsel where the principal allegation

and manifestation of inadequate representation is counsel’s failure to

file a timely motion to suppress evidence allegedly obtained in violation

of the Fourth Amendment.” 477 U. S., at 368. Our negative answer to

that question had nothing to do with the issue here. The parties in

Kimmelman had not raised the question “whether the admission of

illegally seized but reliable evidence can ever constitute ‘prejudice’

under Strickland”—a question similar to the one presented here—and

Cite as: 566 U. S. ____ (2012) 7

SCALIA, J., dissenting

Those precedents leave no doubt about the answer to

the question presented here. As the Court itself observes,

a criminal defendant has no right to a plea bargain. Ante,

at 9. “[T]here is no constitutional right to plea bargain;

the prosecutor need not do so if he prefers to go to trial.”

Weatherford v. Bursey, 429 U. S. 545, 561 (1977). Coun­

sel’s mistakes in this case thus did not “deprive the de­

fendant of a substantive or procedural right to which the

law entitles him,” Williams, supra, at 393. Far from be-

ing “beside the point,” ante, at 9, that is critical to correct

application of our precedents. Like Fretwell, this case

“concerns the unusual circumstance where the defendant

attempts to demonstrate prejudice based on considerations

that, as a matter of law, ought not inform the inquiry,”

506 U. S., at 373 (O’Connor, J., concurring); he claims

“that he might have been denied ‘a right the law simply

does not recognize,’ ” id., at 375 (same). Strickland,

Fretwell, and Williams all instruct that the pure outcome­

based test on which the Court relies is an erroneous

measure of cognizable prejudice. In ignoring Strickland’s

“ultimate focus . . . on the fundamental fairness of the

proceeding whose result is being challenged,” 466 U. S., at

696, the Court has lost the forest for the trees, leading it to

accept what we have previously rejected, the “novel argu­

ment that constitutional rights are infringed by trying the

defendant rather than accepting his plea of guilty.”

Weatherford, supra, at 561.

——————

the Court therefore did not address it. Id., at 391 (Powell, J., concur­

ring in judgment); see also id., at 380. Kimmelman made clear, how­

ever, how the answer to that question is to be determined: “The essence

of an ineffective-assistance claim is that counsel’s unprofessional errors

so upset the adversarial balance between defense and prosecution that

the trial was rendered unfair and the verdict rendered suspect,” id., at 374

(emphasis added). “Only those habeas petitioners who can prove under

Strickland that they have been denied a fair trial . . . will be granted the

writ,” id., at 382 (emphasis added). In short, Kimmelman’s only rele­

vance is to prove the Court’s opinion wrong.

8 LAFLER v. COOPER

SCALIA, J., dissenting

II

Novelty alone is the second, independent reason why the

Court’s decision is wrong. This case arises on federal

habeas, and hence is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA). Since, as

the Court acknowledges, the Michigan Court of Appeals

adjudicated Cooper’s ineffective-assistance claim on the

merits, AEDPA bars federal courts from granting habeas

relief unless that court’s decision was “contrary to, or

involved an unreasonable application of, clearly estab­

lished Federal law, as determined by the Supreme Court

of the United States.” 28 U. S. C. §2254(d)(1). Yet the

Court concludes that §2254(d)(1) does not bar relief here,

because “[b]y failing to apply Strickland to assess the

ineffective-assistance-of-counsel claim respondent raised,

the state court’s adjudication was contrary to clearly

established federal law.” Ante, at 15. That is not so.

The relevant portion of the Michigan Court of Appeals

decision reads as follows:

“To establish ineffective assistance, the defendant

must demonstrate that his counsel’s performance fell

below an objective standard of reasonableness and

that counsel’s representation so prejudiced the de­

fendant that he was deprived of a fair trial. With

respect to the prejudice aspect of the test, the defend-

ant must demonstrate a reasonable probability that,

but for counsel’s errors, the result of the proceed-

ings would have been different, and that the at-

tendant proceedings were fundamentally unfair and

unreliable.

“Defendant challenges the trial court’s finding after

a Ginther hearing that defense counsel provided effec­

tive assistance to defendant during the plea bargain­

ing process. He contends that defense counsel failed

to convey the benefits of the plea offer to him and ig­

nored his desire to plead guilty, and that these fail­

Cite as: 566 U. S. ____ (2012) 9

SCALIA, J., dissenting

ures led him to reject a plea offer that he now wishes

to accept. However, the record shows that defendant

knowingly and intelligently rejected two plea offers

and chose to go to trial. The record fails to support de­

fendant’s contentions that defense counsel’s represen­

tation was ineffective because he rejected a defense

based on [a] claim of self-defense and because he did

not obtain a more favorable plea bargain for defend­

ant.” People v. Cooper, No. 250583 (Mar. 15, 2005),

App. to Pet. for Cert. 45a, 2005 WL 599740, *1

(per curiam) (footnote and citations omitted).

The first paragraph above, far from ignoring Strickland,

recites its standard with a good deal more accuracy than

the Court’s opinion. The second paragraph, which is

presumably an application of the standard recited in the

first, says that “defendant knowingly and intelligently

rejected two plea offers and chose to go to trial.” This can

be regarded as a denial that there was anything “funda­

mentally unfair” about Cooper’s conviction and sentence,

so that no Strickland prejudice had been shown. On the

other hand, the entire second paragraph can be regarded

as a contention that Cooper’s claims of inadequate repre­

sentation were unsupported by the record. The state

court’s analysis was admittedly not a model of clarity, but

federal habeas corpus is a “guard against extreme mal­

functions in the state criminal justice systems,” not a

license to penalize a state court for its opinion-writing

technique. Harrington v. Richter, 562 U. S. ___, ___ (2011)

(slip op., at 13) (internal quotation marks omitted). The

Court’s readiness to find error in the Michigan court’s

opinion is “inconsistent with the presumption that state

courts know and follow the law,” Woodford v. Visciotti, 537

U. S. 19, 24 (2002) (per curiam), a presumption borne out

here by the state court’s recitation of the correct legal

standard.

Since it is ambiguous whether the state court’s holding

10 LAFLER v. COOPER

SCALIA, J., dissenting

was based on a lack of prejudice or rather the court’s

factual determination that there had been no deficient

performance, to provide relief under AEDPA this Court

must conclude that both holdings would have been unrea­

sonable applications of clearly established law. See Premo

v. Moore, 562 U. S. ___, ___ (2011) (slip op., at 7). The first

is impossible of doing, since this Court has never held that

a defendant in Cooper’s position can establish Strickland

prejudice. The Sixth Circuit thus violated AEDPA in

granting habeas relief, and the Court now does the same.

III

It is impossible to conclude discussion of today’s ex­

traordinary opinion without commenting upon the remedy

it provides for the unconstitutional conviction. It is a

remedy unheard-of in American jurisprudence—and, I

would be willing to bet, in the jurisprudence of any other

country.

The Court requires Michigan to “reoffer the plea agree­

ment” that was rejected because of bad advice from coun­

sel. Ante, at 16. That would indeed be a powerful remedy—

but for the fact that Cooper’s acceptance of that re-

offered agreement is not conclusive. Astoundingly, “the

state trial court can then exercise its discretion in deter­

mining whether to vacate the convictions and resentence

respondent pursuant to the plea agreement, to vacate only

some of the convictions and resentence respondent accord­

ingly, or to leave the convictions and sentence from trial

undisturbed.” Ibid. (emphasis added).

Why, one might ask, require a “reoffer” of the plea

agreement, and its acceptance by the defendant? If the

district court finds (as a necessary element, supposedly, of

Strickland prejudice) that Cooper would have accepted the

original offer, and would thereby have avoided trial and

conviction, why not skip the reoffer-and-reacceptance

minuet and simply leave it to the discretion of the state

Cite as: 566 U. S. ____ (2012) 11

SCALIA, J., dissenting

trial court what the remedy shall be? The answer, of

course, is camouflage. Trial courts, after all, regularly

accept or reject plea agreements, so there seems to be

nothing extraordinary about their accepting or rejecting

the new one mandated by today’s decision. But the ac­

ceptance or rejection of a plea agreement that has no

status whatever under the United States Constitution is

worlds apart from what this is: “discretionary” specifi­

cation of a remedy for an unconstitutional criminal

conviction.

To be sure, the Court asserts that there are “factors”

which bear upon (and presumably limit) exercise of this

discretion—factors that it is not prepared to specify in full,

much less assign some determinative weight. “Principles

elaborated over time in decisions of state and federal

courts, and in statutes and rules” will (in the Court’s rosy

view) sort all that out. Ante, at 13. I find it extraordinary

that “statutes and rules” can specify the remedy for a

criminal defendant’s unconstitutional conviction. Or that

the remedy for an unconstitutional conviction should ever

be subject at all to a trial judge’s discretion. Or, finally,

that the remedy could ever include no remedy at all.

I suspect that the Court’s squeamishness in fashioning a

remedy, and the incoherence of what it comes up with, is

attributable to its realization, deep down, that there is no

real constitutional violation here anyway. The defendant

has been fairly tried, lawfully convicted, and properly

sentenced, and any “remedy” provided for this will do

nothing but undo the just results of a fair adversarial

process.

IV

In many—perhaps most—countries of the world, American­

style plea bargaining is forbidden in cases as serious

as this one, even for the purpose of obtaining testimony

that enables conviction of a greater malefactor, much less

12 LAFLER v. COOPER

SCALIA, J., dissenting

for the purpose of sparing the expense of trial. See, e.g.,

World Plea Bargaining 344, 363–366 (S. Thaman ed.

2010). In Europe, many countries adhere to what they

aptly call the “legality principle” by requiring prosecutors

to charge all prosecutable offenses, which is typically

incompatible with the practice of charge-bargaining. See,

e.g., id., at xxii; Langbein, Land Without Plea Bargaining:

How the Germans Do It, 78 Mich. L. Rev. 204, 210–211

(1979) (describing the “Legalitätsprinzip,” or rule of com­

pulsory prosecution, in Germany). Such a system reflects

an admirable belief that the law is the law, and those who

break it should pay the penalty provided.

In the United States, we have plea bargaining a-plenty,

but until today it has been regarded as a necessary evil. It

presents grave risks of prosecutorial overcharging that

effectively compels an innocent defendant to avoid massive

risk by pleading guilty to a lesser offense; and for guilty

defendants it often—perhaps usually—results in a sen­

tence well below what the law prescribes for the actual

crime. But even so, we accept plea bargaining because

many believe that without it our long and expensive pro­

cess of criminal trial could not sustain the burden imposed

on it, and our system of criminal justice would grind to a

halt. See, e.g., Alschuler, Plea Bargaining and its History,

79 Colum. L. Rev. 1, 38 (1979).

Today, however, the Supreme Court of the United

States elevates plea bargaining from a necessary evil to

a constitutional entitlement. It is no longer a somewhat

embarrassing adjunct to our criminal justice system;

rather, as the Court announces in the companion case to

this one, “ ‘it is the criminal justice system.’ ” Frye, ante, at

7 (quoting approvingly from Scott 1912). Thus, even

though there is no doubt that the respondent here is guilty

of the offense with which he was charged; even though he

has received the exorbitant gold standard of American

justice—a full-dress criminal trial with its innumerable

Cite as: 566 U. S. ____ (2012) 13

SCALIA, J., dissenting

constitutional and statutory limitations upon the evidence

that the prosecution can bring forward, and (in Michigan

as in most States3) the requirement of a unanimous guilty

verdict by impartial jurors; the Court says that his convic­

tion is invalid because he was deprived of his constitution-

al entitlement to plea-bargain.

I am less saddened by the outcome of this case than I

am by what it says about this Court’s attitude toward

criminal justice. The Court today embraces the sporting­

chance theory of criminal law, in which the State functions

like a conscientious casino-operator, giving each player a

fair chance to beat the house, that is, to serve less time

than the law says he deserves. And when a player is

excluded from the tables, his constitutional rights have

been violated. I do not subscribe to that theory. No one

should, least of all the Justices of the Supreme Court.

* * *

Today’s decision upends decades of our cases, violates a

federal statute, and opens a whole new boutique of consti­

tutional jurisprudence (“plea-bargaining law”) without

even specifying the remedies the boutique offers. The

result in the present case is the undoing of an adjudicatory

process that worked exactly as it is supposed to. Released

felon Anthony Cooper, who shot repeatedly and gravely

injured a woman named Kali Mundy, was tried and con­

victed for his crimes by a jury of his peers, and given a

punishment that Michigan’s elected representatives have

deemed appropriate. Nothing about that result is unfair

or unconstitutional. To the contrary, it is wonderfully

just, and infinitely superior to the trial-by-bargain that

today’s opinion affords constitutional status. I respectfully

dissent.

——————

3 See People v. Cooks, 446 Mich. 503, 510, 521 N. W. 2d 275, 278

(1994); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure

§22.1(e) (3d ed. 2007 and Supp. 2011–2012).

Cite as: 566 U. S. ____ (2012) 1

ALITO, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 10–209

_________________

BLAINE LAFLER, PETITIONER v. ANTHONY COOPER

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SIXTH CIRCUIT

[March 21, 2012]

JUSTICE ALITO, dissenting.

For the reasons set out in Parts I and II of JUSTICE

SCALIA’s dissent, the Court’s holding in this case mis-

applies our ineffective-assistance-of-counsel case law and

violates the requirements of the Antiterrorism and Effec-

tive Death Penalty Act of 1996. Respondent received a

trial that was free of any identified constitutional error,

and, as a result, there is no basis for concluding that

respondent suffered prejudice and certainly not for grant-

ing habeas relief.

The weakness in the Court’s analysis is highlighted by

its opaque discussion of the remedy that is appropriate

when a plea offer is rejected due to defective legal repre-

sentation. If a defendant’s Sixth Amendment rights are

violated when deficient legal advice about a favorable plea

offer causes the opportunity for that bargain to be lost, the

only logical remedy is to give the defendant the benefit of

the favorable deal. But such a remedy would cause seri-

ous injustice in many instances, as I believe the Court

tacitly recognizes. The Court therefore eschews the only

logical remedy and relies on the lower courts to exercise

sound discretion in determining what is to be done.

Time will tell how this works out. The Court, for its

part, finds it unnecessary to define “the boundaries of

proper discretion” in today’s opinion. Ante, at 13. In my

view, requiring the prosecution to renew an old plea offer

2 LAFLER v. COOPER

ALITO, J., dissenting

would represent an abuse of discretion in at least two

circumstances: first, when important new information

about a defendant’s culpability comes to light after the

offer is rejected, and, second, when the rejection of the

plea offer results in a substantial expenditure of scarce

prosecutorial or judicial resources.

The lower court judges who must implement today’s

holding may—and I hope, will—do so in a way that miti-

gates its potential to produce unjust results. But I would

not depend on these judges to come to the rescue. The

Court’s interpretation of the Sixth Amendment right to

counsel is unsound, and I therefore respectfully dissent.