Claude Lacombe v. Warden James T Vaughn Correct

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 21-1886

________________

CLAUDE P. LACOMBE,

Appellant

v.

WARDEN JAMES T. VAUGHN CORRECTIONAL

CENTER; ATTORNEY GENERAL DELAWARE

________________

On Appeal from the United States District Court

for the District of Delaware

(D.C. No. 1-17-cv-01518)

District Judge: Honorable Leonard P. Stark

________________

Argued on September 27, 2023

Before: KRAUSE, ROTH, and AMBRO, Circuit Judges

(Opinion filed: March 8, 2024)

Richard Coughlin [ARGUED]

Law Office of Caroline Goldner Cinquanto

3331 Street Road

2 Greenwood Square, Suite 450

Bensalem, PA 19020

Counsel for Appellant

Carolyn S. Hake [ARGUED]

Office of Attorney General of Delaware

Delaware Department of Justice

820 N French Street

Carvel Office Building

Wilmington, DE 19801

Counsel for Appellees

________________

OPINION

________________

KRAUSE, Circuit Judge.

The government, like all of us, must keep its word. This

is especially true in the context of plea bargaining, where the

government’s word leads criminal defendants to surrender a

host of constitutional rights. Yet in two different cases today1

we confront situations where the government fell short.

This opinion concerns Claude Lacombe, who

surrendered his rights in exchange for a promise that the

government—here the State of Delaware—would recommend

a sentence just one year above the mandatory minimum. The

State did recommend the promised sentence. But before doing

so, it called Lacombe a “gangsta,” a “puppet master,” and the

one who “may as well have” pulled the trigger in a botched

robbery that left two dead. App. A at 96. Lacombe, who had

bargained for a 22-year sentence recommendation, was

ultimately sentenced to life in prison.

Lacombe now appeals the District Court’s denial of

habeas relief, arguing that the Delaware Supreme Court erred

in rejecting his claims that (1) the State breached its plea

agreement in violation of Santobello v. New York, 404 U.S. 257

(1971), and (2) his counsel was ineffective for failing to

demand specific performance of the plea agreement, see

1

Filed contemporaneously with this opinion is United States v.

Cruz, No. 23-1192 (3d Cir. Mar. 8, 2024), which addresses

plea breach in the context of a direct appeal.

2

Strickland v. Washington, 466 U.S. 668 (1984). To succeed on

those arguments, Lacombe must show that the Delaware

Supreme Court unreasonably applied Santobello and

Strickland under the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), and that he

suffered “actual prejudice” as a result of the State’s rhetoric

and his counsel’s failure to object, Brecht v. Abrahamson, 507

U.S. 619, 637 (1993) (quoting United States v. Lane, 474 U.S.

438, 449 (1986)).

As for the AEDPA inquiry, it may be that the State

violated the spirit of its agreement by paying mere lip service

to the stipulated sentence (and that the Delaware Supreme

Court was unreasonable in concluding otherwise). But we

need not resolve that issue because, in any event, Lacombe has

not established prejudice. Finding any constitutional error

harmless under Brecht, Strickland, and Puckett v. United

States, 556 U.S. 129 (2009), we will affirm the order of the

District Court.

I. Background

A. Lacombe’s Sentencing

On December 26, 2011, Michael Thomas and Keifer

Wright drove from Philadelphia to Delaware expecting to sell

a quarter pound of marijuana to Lacombe’s brother, Paul. But

Paul never intended to buy the marijuana. Instead, he and

Lacombe had hatched a plan to rob the men and take their drugs

at gunpoint. That plan now in motion, Lacombe’s girlfriend

Christie drove Lacombe, Paul, and Lacombe’s friend Elijah to

the Harbor Club Apartments in Newark, Delaware. With

Lacombe and Christie parked elsewhere, Paul and Elijah met

Michael and Keifer at their car and got inside.

Things quickly went south. At some point during the

attempted robbery, Paul panicked and shot Keifer in the back

of the head with Lacombe’s revolver. In the ensuing struggle,

Paul also shot Michael several times. Michael was pronounced

dead at the scene, and Keifer died a few days later. Lacombe,

Paul, Elijah, and Christie fled in Christie’s car.

3

The police apprehended Lacombe and Paul, and a New

Castle County grand jury returned a 13-count indictment

against the two men.2 The indictment charged each with two

counts of first-degree murder, two counts of attempted first-

degree robbery, four counts of possession of a firearm during

the commission of a felony, and one count of second-degree

conspiracy. Paul faced four additional charges for first-degree

murder and firearm possession, but in exchange for his

agreement to plead guilty but mentally ill to first-degree

murder, the State agreed to recommend a life sentence rather

than the death penalty. Lacombe pleaded down to one count

of second-degree murder, one count of attempted first-degree

robbery, one count of possession of a firearm during the

commission of a felony, and one count of second-degree

conspiracy.

The charges to which Lacombe pleaded guilty carried a

mandatory minimum sentence of 21 years and a maximum

sentence of life plus 52 years. In exchange for that plea, the

State agreed to recommend a sentence of 22 years—again, just

one year above the mandatory minimum—followed by

Level IV and Level III probation.3 The Delaware Superior

Court accepted Lacombe’s plea as knowing and voluntary, and

it ordered a presentence investigation to determine the relative

culpability of the individuals involved in the shooting.

On September 17, 2013, the Superior Court held a joint

sentencing for Lacombe and his brother. After “moving and

powerful statements of loss and trauma” from the victims’

families, Opening Br. 7, the prosecutor recounted the facts of

the case. When the prosecutor finished her overview, the

sentencing judge asked for clarification on “how [Lacombe

2

Elijah, who was sentenced the day after Lacombe and his

brother, was charged with the same crimes as Lacombe.

Christie was charged separately and apparently sentenced

alongside Elijah.

3

Lacombe affirmed in his plea agreement that nobody

“promised [him] what [his] sentence [would] be,” App. A at

69, and during his plea colloquy he recognized that the State’s

22-year recommendation was not binding on the sentencing

court. He also recognized that the sentencing court could

lawfully impose the maximum sentence of life plus 52 years.

4

and the victims] hooked up and how they knew each other.”

App. A at 95. The prosecutor answered the question, but she

did not stop there; she proceeded to state that Lacombe “was

determined to live this lifestyle of this sort of gangsta rapper,”

and that his rap lyrics “about robbing, shooting, killing, [and]

disrespecting women” reflected “a lifestyle that [he]

embraced . . . [and] chose to act on . . . when this was all set

into play.” Id. at 96. By way of explanation for these

statements, the prosecutor offered the following:

[W]hen you look at what [Lacombe] physically

did, he sat in the car while Paul and Elijah

actually went when the robbery and the murder

of both Michael and Keifer occurred. But

[Lacombe] set all of this in motion. [Lacombe]

is the one who put it all into play. [Lacombe] is

the one who selected who would be present.

[Lacombe] is the one who determined the

location. [Lacombe] is the one who determined

the time. [Lacombe] is the one who controlled

all of this.

Id. The prosecutor then continued, describing Lacombe as “the

older brother, the mastermind, [and] the puppet master” and

concluding: “So don’t be fooled when you consider what

sentence to give [Lacombe] by the fact that he stayed in the car

when this robbery and double homicide occurred. He didn’t

pull the trigger, but he may as well have, because he set the

whole thing in play.” Id.

Following this commentary, the prosecutor

recommended the agreed-upon sentences of life in prison for

Paul and “22 years Level V time followed by a lengthy period

of probation” for Lacombe. Id.

Lacombe’s attorneys did not object to the State’s

monologue. When given the chance to respond, they simply

noted that “all the issues the State raised . . . about [Lacombe’s]

involvement and being the mastermind behind this [were]

incorporated in the plea.” Id. at 99. Given Lacombe’s “fairly

troubled childhood,” the attorneys argued, 22 years was “a

reasonable sentence recommendation.” Id.

5

The sentencing judge disagreed. After emphasizing that

“[t]he circumstances are horrible” and “there are no good

results from this kind of thing,” id. at 100, she sentenced Paul

to life in prison for first-degree murder and to additional time

for second-degree conspiracy. She then turned to Lacombe,

noting that while she “wouldn’t call [him] the mastermind,” he

was, based on the record, a “significant factor in the planning

and determination of the events that transpired that led to the

circumstances as they ended.” Id. Because the judge saw

Lacombe’s role, “candidly, as being fairly equal in different

respects to that of [his] brother,” she sentenced Lacombe to the

maximum of life for second-degree murder. Id. at 101. She

also sentenced him to five years for possession of a firearm

during the commission of a felony, five years for attempted

first-degree robbery, and two years (suspended) for second-

degree conspiracy.4

B. State Proceedings

In October 2013, shortly after the sentencing hearing,

Lacombe filed a motion for modification of sentence. See Del.

Super. Ct. R. Crim. P. 35(b). In that motion, he argued that

(1) the State breached its plea agreement by raising his

culpability “from that of a co-conspirator[] to ‘mastermind’ of

[the] whole robbery,” and (2) counsel was ineffective for

failing to warn him about the possibility of a life sentence.

App. A at 180. The Superior Court denied the motion, writing

that “the sentence is appropriate for all the reasons stated at the

time of sentencing” and that “this [was] not the proper [forum

in which] to challenge compliance . . . with the plea agreement

or conduct [of] defense counsel.” App. B at 9 (capitalization

altered).

Undeterred, Lacombe filed a second motion for

modification of sentence with similar claims two months later.

Although the State opposed the motion, it wrote that it was “not

opposed to reconsideration of [Lacombe’s] sentence on the

Murder Second Degree charge in this case,” noting that

Lacombe’s proposal of 15 to 30 years was “not an

4

The mandatory minimum sentences for these crimes were

three, three, and zero years, respectively. The maximum

sentences were 25, 25, and two years, respectively.

6

unreasonable [resentencing] request.” App. A at 188. But the

sentencing judge remained unmoved. In a letter opinion, she

stated that she was “not swayed in the decision to impose

sentence on this matter by the State’s comments, but [instead]

by the facts and the Defendant’s conduct.” Letter Opinion at

1, State v. LaCombe, No. 1201018188 (Del. Super. Ct.

Aug. 20, 2014).5 After recounting that conduct, the sentencing

judge concluded that because Lacombe’s actions “in the

planning and implementation of his design, and in providing

the weapon used, reflected a comparable culpability” to Paul,

who was sentenced to life, a “comparable sentence” was

warranted for Lacombe himself. Id. at 1–2.

The Delaware Supreme Court affirmed Lacombe’s

sentence on direct appeal, rejecting Lacombe’s “sole

argument” that his life sentence violated the Eighth

Amendment “because he received the same sentence as his

brother, who was the shooter” and concluding that there was

“nothing extreme, or grossly disproportionate, about

sentencing a murderer to life in prison.” Lacombe v. State,

No. 560, 2014 WL 2522273, at *1–2 (Del. May 30, 2014).

In his motion for postconviction relief under Del. Super.

Ct. R. Crim. P. 61, Lacombe argued that trial counsel was

ineffective for failing to object to the State’s plea breach and

demand specific performance of the plea agreement.6 The

5

While certain prior opinions have referred to Lacombe as

“LaCombe,” we use “Lacombe” throughout this opinion for

consistency with the parties’ filings.

6

Although Lacombe had not raised this argument on direct

appeal, the Superior Court considered it on the merits. Rule 61

bars relief on “[a]ny ground . . . that was not asserted in the

proceedings leading to the judgment of conviction,” but it

exempts from that bar “colorable claim[s] that there was a

miscarriage of justice because of a constitutional violation that

undermined the fundamental legality, reliability, integrity or

fairness of the proceedings.” Del. Super. Ct. R. Crim.

P. 61(i)(3), (5). As the Superior Court wrote, “[a] claim of

ineffective counsel in violation of the Sixth Amendment to the

United States Constitution, by its very nature, qualifies” as

such a colorable claim. State v. LaCombe, 2016 WL 6301233,

at *5 (Del. Super. Ct. Oct. 25, 2016).

7

Superior Court ultimately denied relief. See State v. LaCombe,

2016 WL 6301233, at *8 (Del. Super. Ct. Oct. 25, 2016).

Counsel was not ineffective, the Court held, because there was

no breach to which to object—the State “recommended the

agreed upon sentence of twenty-two years,” and it therefore

“performed exactly as the terms of the plea agreement stated.”

Id. at *7. Even if counsel’s performance was deficient, the

Court continued, there was “no prejudice from [the] failure to

argue for . . . specific enforcement” because “[t]he State’s

recommendation [did] not bind the Superior Court.” Id. at *8;

see Strickland, 466 U.S. at 687 (holding that ineffective

assistance of counsel requires two showings: one, that

“counsel’s performance was deficient,” and two, that “the

deficient performance prejudiced the defense”). The Delaware

Supreme Court adopted the Superior Court’s logic and

affirmed. Lacombe v. State, No. 542, 2017 WL 2180545, at

*5–7 (Del. May 17, 2017).7

C. Federal Proceedings

Lacombe filed a petition for a writ of habeas corpus in

the District of Delaware on October 26, 2017. See 28 U.S.C.

§ 2254(a). As relevant here, Lacombe’s amended petition

asserted that (1) “the State . . . breach[ed] the plea

agreement . . . [by] improperly bolstering its theory to increase

[Lacombe’s] sentence,” and (2) “trial counsel was ineffective

for failing to require specific performance from the State when

7

Lacombe’s subsequent efforts to obtain postconviction relief

in the Delaware state courts proved unsuccessful. See State v.

Lacombe, 2017 WL 6550430, at *2–4 (Del. Super. Ct. Dec. 21,

2017) (second motion for postconviction relief), aff’d, No. 22,

2018 WL 1678765 (Del. Apr. 5, 2018); Lacombe v. State,

No. 204, 2022 WL 4114103, at *1 (Del. Sept. 8, 2022) (third

motion for postconviction relief).

8

the State breached its plea agreement.”8 LaCombe v. May,

No. 17-cv-01518, 2021 WL 1342223, at *1, *3 (D. Del.

Apr. 9, 2021).

The District Court rejected both arguments.

Concerning the first, the Court wrote that “the Delaware state

courts reasonably determined . . . [the State’s remarks] did not

constitute a breach of the plea agreement.” Id. at *6; see 28

U.S.C. § 2254(d)(1). “[T]he State’s responsibility during the

sentencing hearing was to recommend capping the sentence at

22 years . . . , which it did,” and nothing in the agreement

prohibited the State from explaining Lacombe’s and Paul’s

relative roles, nor did the agreement prevent the State from

arguing “that a long probation was needed” for Lacombe.

LaCombe, 2021 WL 1342223, at *7 (quotation marks omitted).

Taken in context, the District Court concluded, the State’s

rhetoric was not inflammatory, and the Delaware Supreme

Court correctly—or at least reasonably—found no plea breach.

See id. at *6–7.

Concerning Lacombe’s second argument, the District

Court concluded that because “the Delaware Supreme Court

reasonably . . . applied clearly established federal law in

holding that the State did not breach the plea agreement . . . ,

there was nothing more for trial counsel to seek in terms of

specific performance” and counsel’s conduct “did not fall

below an objective standard of reasonableness.” Id. at *10. It

also held that, because the Superior Court “was not obligated

to follow the State’s sentencing recommendation and had

discretion to sentence [Lacombe] to life in prison,” the

Delaware Supreme Court “reasonably applied Strickland in

holding that [Lacombe] was not prejudiced by trial counsel’s

failure to seek specific performance of the plea agreement.” Id.

8

In total, the amended petition asserted 14 grounds for relief.

LaCombe v. May, No. 17-cv-01518, 2021 WL 1342223, at *3

(D. Del. Apr. 9, 2021). The District Court dismissed eight

claims—those raised in Lacombe’s second motion for

postconviction relief—as procedurally defaulted, id. at *11–

13; see Lines v. Larkins, 208 F.3d 153, 160 (3d Cir. 2000), and

it denied relief on the remaining six, LaCombe, 2021 WL

1342223, at *4–11.

9

Having denied relief on the above claims, the District

Court declined to issue a certificate of appealability and

dismissed Lacombe’s habeas petition without holding an

evidentiary hearing. Id. at *13; see 28 U.S.C. § 2253(c); 3d

Cir. L.A.R. 22.2 (2011). Our Court, however, granted

Lacombe’s petition for a certificate of appealability with

respect to the plea-breach and ineffective-assistance claims, to

which we now turn.

II. Discussion9

Because the District Court ruled on Lacombe’s habeas

petition without an evidentiary hearing, “we review the state

courts’ determinations under the same standard that the District

Court was required to apply.” Thomas v. Horn, 570 F.3d 105,

113 (3d Cir. 2009). That standard consists of two inquiries: In

weighing whether to grant habeas relief, we must “apply[] both

the test [the Supreme] Court outlined in Brecht and the one

Congress prescribed in AEDPA.” Brown v. Davenport, 142 S.

Ct. 1510, 1517 (2022).

Under AEDPA, we may not grant habeas relief “with

respect to any claim that was adjudicated on the merits in State

court proceedings” unless the adjudication of the claim

“resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.”10 28

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

established law when it “applies a rule that contradicts the

governing law set forth in [the Supreme Court’s] cases” or

“confronts a set of facts that are materially indistinguishable

from a decision of [the Supreme] Court and nevertheless

arrives at a [different] result.” Williams v. Taylor, 529 U.S.

9

The District Court had jurisdiction under 28 U.S.C. §§ 2241

and 2254. We have jurisdiction under 28 U.S.C. §§ 1291 and

2253.

10

Although we may also grant habeas relief when the

adjudication “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” 28 U.S.C.

§ 2254(d)(2), the parties do not dispute the reasonableness of

the Delaware courts’ factual findings.

10

362, 405–06 (2000). Similarly, a decision involves “an

unreasonable application of” clearly established law when it

“correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular . . . case.” Id. at 407–

08. The application must be “objectively unreasonable,”

meaning that “a federal habeas court may not issue the writ

simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Id. at 409,

411; see also, e.g., Harrington v. Richter, 562 U.S. 86, 102

(2011) (“[E]ven a strong case for relief does not mean the state

court’s contrary conclusion was unreasonable.”).

Under Brecht, which adds a harmless-error element to

our habeas analysis, we must ask two questions for each claim

at issue. First, does the claim concern a trial error—meaning

an error that “occur[s] during the presentation of the case” to

the trier of fact and can “be quantitatively assessed in the

context of other evidence presented in order to determine”

harmlessness—or a structural defect, which is not susceptible

to harmless-error analysis and likely entitles the petitioner to

relief? Brecht, 507 U.S. at 629–30 (alteration in original)

(quoting Arizona v. Fulminante, 499 U.S. 279, 307–08 (1991)).

Second, if the claim concerns a trial error, did that error result

in “actual prejudice” to the petitioner? Id. at 637 (quoting

Lane, 474 U.S. at 449); see Fry v. Pliler, 551 U.S. 112, 121–

22 (2007).

To satisfy his burden of proving “actual prejudice,” a

petitioner must show that the error “had [a] substantial and

injurious effect or influence in determining” the relevant

outcome. Brecht, 507 U.S. at 637 (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)). Absent that showing, we

will not remedy a claim of trial error on collateral review. See

id. at 637–38. If the petitioner can make the requisite showing,

however, Brecht presents no barrier to relief. Id.; see Brown,

142 S. Ct. at 1517, 1520.

The upshot is that, to prevail on a habeas petition, a

prisoner asserting trial error must establish both error under

AEDPA and prejudice under Brecht. Brown, 142 S. Ct. at

1517, 1520; see Freeman v. Superintendent Fayette SCI, 62

F.4th 789, 802 (3d Cir. 2023); Mathias v. Superintendent

11

Frackville SCI, 876 F.3d 462, 475 (3d Cir. 2017). Failing to

establish either one will preclude habeas relief, so “[w]hen a

federal court determines . . . that a petitioner has failed to carry

his burden under Brecht, that conclusion . . . obviates the need

for . . . a separate AEDPA inquiry [and] relief must be denied.”

Brown, 142 S. Ct. at 1528 (emphasis omitted).

Such is the case for Lacombe’s plea-breach claim. That

claim concerns a trial error, not a structural error, and Lacombe

has not carried his burden to show “actual prejudice” under

Brecht.11 Similarly, Lacombe has not carried his burden to

show prejudice, let alone “actual prejudice,” on his Strickland

claim.

A. Lacombe’s Santobello Claim

In Santobello, the Supreme Court held that “when a plea

rests in any significant degree on a promise or agreement of [a]

prosecutor, so that it can be said to be part of the inducement

or consideration, such promise must be fulfilled.” 404 U.S. at

11

Based on this conclusion, we can affirm Lacombe’s

Santobello claim on harmlessness alone. That we do not reach

the AEDPA inquiry for this claim, however, does not mean the

Delaware Supreme Court’s merits determination was

necessarily reasonable. The State asserts on appeal that it

properly emphasized Lacombe’s role to ensure “a long

probation.” Answering Br. 38. But recall that the State offered

its strong language in support of a sentence just one year above

the statutory minimum. Given the facts here, we question

whether fair-minded jurists could conclude that the State’s

actions comported with the “spirit of [the] agreement.”

Dunn v. Colleran, 247 F.3d 450, 461 (3d Cir. 2001). True, the

government “need not endorse the terms of its plea agreements

enthusiastically.” United States v. Badaracco, 954 F.2d 928,

941 (3d Cir. 1992) (quotation marks omitted). And AEDPA’s

standard is no doubt difficult to meet. See, e.g., Harrington,

562 U.S. at 102–03; Renico v. Lett, 559 U.S. 766, 773 (2010).

But the government also may not introduce its agreed-upon

terms with a wink and a nod. See Cruz, slip op. at 7–8; see

also, e.g., United States v. Canada, 960 F.2d 263, 269–71 (1st

Cir. 1992); United States v. Taylor, 77 F.3d 368, 369–71 (11th

Cir. 1996).

12

262. Lacombe argues here, as he did before the District Court,

that (1) the State failed to fulfill its promise by implicitly

advocating for a sentence longer than 22 years, and (2) the

Delaware Supreme Court unreasonably applied Santobello

when it reached the opposite conclusion. He also contends that

the Delaware Supreme Court erred in considering prejudice

because we have treated Santobello errors “as akin to structural

defects not susceptible [to] harmless error analysis.” Reply Br.

6 (quoting Dunn v. Colleran, 247 F.3d 450, 463 (3d Cir.

2001)). Lacombe makes the third argument under AEDPA,12

but it is equally relevant for purposes of Brecht. Assuming we

begin our analysis with Brecht and harmless error—as we elect

to do here—a conclusion that Santobello violations are

structural defects would foreclose our consideration of

prejudice.

Whether Santobello violations are trial errors or

structural defects was, until today, an open question in our

Circuit. In Dunn, a plea-breach case decided on AEDPA

grounds, the majority observed that “[t]he Supreme Court and

this Court have, on direct appeal, regularly treated Santobello

errors as akin to structural defects” and that “[n]othing in recent

Supreme Court caselaw” suggested a different conclusion on

habeas review. 247 F.3d at 451, 463. The dissent, meanwhile,

pointed out that the Supreme Court has never identified plea

breach as within the “limited class” of structural defects and

that “there is a strong presumption against finding . . . a given

type of violation [to be] structural.” Id. at 470 (Cowen, J.,

dissenting) (quotation marks omitted); see Neder v. United

States, 527 U.S. 1, 8 (1999); Johnson v. United States, 520 U.S.

461, 468–69 (1997). Ultimately, however, we had no reason

12

In Lacombe’s view, the Delaware Supreme Court

“contradict[ed] the governing law” set forth in Santobello

when it framed its analysis “in the context of the need to prove

prejudice occasioned by the breach.” Williams, 529 U.S. at

405; Opening Br. 28. Even if Santobello prohibited harmless-

error analysis, this argument would lack merit: The Delaware

Supreme Court stated that it considered prejudice only under

Strickland, see Lacombe, 2017 WL 2180545, at *6, and a

contrary reading would be out of step with “the respect

AEDPA requires us to afford our state counterparts,”

Eizember v. Trammell, 803 F.3d 1129, 1143 (10th Cir. 2015).

13

to resolve the issue, because “even if harmless error would

apply to a Santobello violation,” the error in Dunn was not

harmless. 247 F.3d at 463.

Today, we confront the issue again with the benefit of

“recent Supreme Court caselaw.” Id. Eight years after Dunn,

the Supreme Court decided Puckett v. United States, 556 U.S.

129. In that case, the government conceded on direct review

that it had violated the terms of the plea agreement. Id. at 133.

Because defense counsel failed to object to the plea breach at

sentencing, however, the government argued that (1) plain-

error review was appropriate for the unpreserved claim, and

(2) Puckett could not show prejudice as required under the

plain-error standard. Id.; see Fed. R. Crim. P. 52(b); United

States v. Olano, 507 U.S. 725, 734–35 (1993). Puckett

countered that even if plain-error review was appropriate,

consideration of prejudice was not, because Santobello deemed

plea-breach claims to be structural defects. See Puckett, 556

U.S. at 140. The Supreme Court disagreed, explaining:

[B]reach of a plea deal is not a “structural” error

as we have used that term. We have never

described it as such, and it shares no common

features with errors we have held structural. A

plea breach does not necessarily render a

criminal trial fundamentally unfair or an

unreliable vehicle for determining guilt or

innocence; it does not defy analysis by harmless-

error standards by affecting the entire

adjudicatory framework; and the difficulty of

assessing the effect of the error is no greater with

respect to plea breaches at sentencing than with

respect to other procedural errors at sentencing,

which are routinely subject to harmlessness

review.

Id. at 141 (citations and quotation marks omitted). The Court

also clarified that, while “Santobello did hold . . . automatic

reversal is warranted when objection to the Government’s

breach of a plea agreement has been preserved,” that holding

14

rested on policy concerns.13 Id. Those policy concerns and

“the rule of contemporaneous objection,” the Court said, are

“equally essential and desirable, and when the two collide

[there is] no need to relieve the defendant of his usual burden

of showing prejudice.” Id.

Puckett, then, stands for two propositions. First, plea

breach is not a structural defect that defies analysis by

harmless-error standards. Second, at least where there is no

contemporaneous objection, Santobello’s automatic-reversal

rule does not apply, and prejudice is relevant to a plea-breach

claim.

Although Puckett dealt with plain-error review, its

reasoning applies with equal force on habeas review. Just as a

defendant “must make a specific showing of prejudice” to

prevail in the plain-error context, Olano, 507 U.S. at 735, a

habeas petitioner is “not entitled to habeas relief based on trial

error unless [he] can establish that [the error] resulted in ‘actual

prejudice,’” Brecht, 507 U.S. at 637 (quoting Lane, 474 U.S.

at 449). And we see no reason why the contemporaneous-

objection rule—which is enough to overcome Santobello’s

automatic-reversal rule in the context of plain error—should

13

As the Dunn majority emphasized, the Santobello Court

remanded the case despite evidence of harmlessness. Dunn,

247 F.3d at 463; see Santobello, 404 U.S. at 262–63. The

Puckett Court explained, however, that it did so not because

“plea-breach errors are (like structural errors) somehow not

susceptible, or not amenable, to review for harmlessness,” but

instead based on “a policy interest in establishing the trust

between defendants and prosecutors that is necessary to sustain

plea bargaining—an essential and highly desirable part of the

criminal process.” 556 U.S. at 141 (emphasis omitted)

(quotation marks omitted).

15

have any less force in the habeas context.14 On collateral

review too, then, a “defendant whose plea agreement has been

broken by the Government will not always be able to show

prejudice, either because he obtained the benefits contemplated

by the deal anyway . . . or because he likely would not have

obtained those benefits in any event.” Puckett, 556 U.S. at

141–42. Because Santobello violations are not structural

defects, and because Puckett’s logic extends to habeas, we hold

that without a contemporaneous objection, an alleged

Santobello violation is a trial error susceptible to harmless-

error review under Brecht.

We qualify our holding with an important caveat.

Puckett concluded that Santobello violations are amenable to

harmless-error analysis when there is no contemporaneous

objection, because in that scenario there is a “colli[sion]”

between the “essential and desirable” contemporaneous-

objection rule and the “policy interest in establishing . . . trust

between defendants and prosecutors . . . necessary to sustain

plea bargaining.” 556 U.S. at 141. In the scenario where there

is a contemporaneous objection, and so that collision is

avoided, the Puckett Court explicitly declined to “confront . . .

the question [of] whether Santobello’s automatic-reversal rule

has survived [the] recent elaboration of harmless-error

principles in such cases as Fulminante and Neder.” Id. at 141

n.3. We adopt the same approach here, and we take no position

on whether harmless-error analysis is appropriate—on habeas

14

Indeed, the policy considerations weighing against

automatic reversal are even greater when (1) there is no

contemporaneous objection, and (2) the case reaches federal

court under 28 U.S.C. § 2254. In Brecht, the Supreme Court

wrote that “[o]verturning final and presumptively correct

convictions on [habeas] review . . . undermines the States’

interest in finality and infringes upon their sovereignty over

criminal matters.” 507 U.S. at 637. The same logic, we

believe, applies to “final and presumptively correct” sentences.

Id.

16

review, direct appeal, or elsewhere—for Santobello violations

where counsel lodges a timely objection.15

Here, it is undisputed that Lacombe’s attorneys did not

object to the State’s rhetoric, so Brecht’s harmless-error rule

governs.16 And because Lacombe has not established “actual

prejudice,” that rule is dispositive. Even if the State breached

the plea agreement, the sentencing judge was not bound by the

State’s recommendation, had independent access to

information about Lacombe’s and Paul’s respective roles in the

crimes, and indicated at sentencing that she was not swayed by

the State’s rhetoric. See App. A at 100–01 (“I wouldn’t call

you the mastermind, but, nonetheless, a significant factor in the

planning and determination of the events that transpired . . . . I

see your role, candidly, as being fairly equal in different

respects to that of your brother . . . .”). In addition, and

tellingly, the sentencing judge reaffirmed Lacombe’s life

sentence even after the State agreed that a reduction to 15 to 30

years was reasonable, writing that her original sentence was

based solely on “the facts and the Defendant’s conduct.”17

Letter Opinion, supra, at 1. Lacombe thus cannot show that

the State’s purported overreach had a “substantial and injurious

15

Had there been a contemporaneous objection here, the State

could of course have attempted to cure the breach. See Cruz,

slip op. at 8–10. But as Cruz confirms, “it [remains] an open

question whether we may excuse . . . errors as harmless” in that

scenario. Id. at 11.

16

Lacombe did not forfeit his plea-breach claim despite his

counsel’s failure to object, instead preserving it (via an

ineffective-assistance claim) in his Rule 61 motion. Because

the Delaware Supreme Court reviewed the claim on the merits

rather than for plain error, see Lacombe, 2017 WL 2180545, at

*1–2, we need not concern ourselves with questions of

procedural default or exhaustion, see Picard v. Connor, 404

U.S. 270, 275 (1971).

17

Although it is possible that the State’s words unconsciously

influenced the sentencing judge, and that once the State said its

piece the bell could not be unrung, the sentencing judge gave

assurances to the contrary, and ignoring those assurances

would be out of step with the principles of comity and

federalism underlying federal habeas review. See Brecht, 507

U.S. at 635.

17

effect or influence” on the Superior Court’s sentence, Brecht,

507 U.S. at 637 (quoting Kotteakos, 328 U.S. at 776); see

Puckett, 556 U.S. at 141–42, or that there is “grave doubt about

whether [the] trial error” affected the outcome, see Davis v.

Ayala, 576 U.S. 257, 267–68 (2015) (quoting O’Neal v.

McAninch, 513 U.S. 432, 436 (1995)).18 We conclude that any

error here was harmless under Brecht,19 and we will affirm the

District Court’s denial of relief on Lacombe’s Santobello claim

without reaching the AEDPA inquiry. See Brown, 142 S. Ct.

at 1528.

B. Lacombe’s Strickland Claim

Having disposed of Lacombe’s Santobello claim on

harmless-error grounds, the resolution of Lacombe’s

Strickland claim is fairly straightforward. As for this claim,

we begin (and end) with AEDPA.

To sustain an ineffective-assistance claim under

Strickland, a defendant must show that (1) counsel’s

performance was deficient, meaning that it “fell below an

objective standard of reasonableness,” and (2) the deficient

performance “prejudiced the defense,” meaning “there is a

reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different.”

466 U.S. at 687–88, 694. Lacombe argues that the Delaware

Supreme Court erred at both prongs of this analysis and

unreasonably applied Strickland because, assuming a breach,

it (1) failed to consider counsel’s deficient failure to object, and

18

See also, e.g., Calderon v. Coleman, 525 U.S. 141, 146

(1998) (per curiam) (“The social costs of retrial or resentencing

are significant . . . . The State is not to be put to this arduous

task based on mere speculation that the defendant was

prejudiced by trial error; the court must find that the defendant

was actually prejudiced by the error.”).

19

As the Supreme Court clarified in Puckett, “the question with

regard to prejudice is not whether [a defendant] would have

entered the plea had he known about the future violation.” 556

U.S. at 142 n.4. Instead, “[w]hen the rights acquired by the

defendant relate to sentencing, the outcome he must show to

have been affected is his sentence.” Id. (quotation marks

omitted).

18

(2) concluded there was no prejudice “because the sentencing

court was not bound by the State’s recommendation.”

Lacombe, 2017 WL 2180545, at *6.

Even assuming the State breached its plea agreement,

we agree with the Delaware Supreme Court that counsel’s

failure to object or demand specific performance was

harmless.20 For the same reason we lack “grave doubt” as to

whether the alleged plea breach affected the outcome (that is,

the absence of “actual prejudice”), we do not believe the

Delaware Supreme Court unreasonably applied Strickland

when it concluded Lacombe’s sentence would have been the

same regardless of counsel’s actions. Lacombe’s Strickland

claim therefore fails under AEDPA, and we will affirm the

District Court’s denial of relief on this claim as well.

III. Conclusion

Because Lacombe is not entitled to habeas relief for

either claim at issue on appeal, we will affirm the order of the

District Court.

20

We take no position on whether the State actually breached

the plea agreement for purposes of Strickland. See Strickland,

466 U.S. at 697, 700 (noting that, because “[f]ailure to make

the required showing of either deficient performance or

sufficient prejudice defeats [an] ineffectiveness claim,” a court

can “dispose of [the] claim on the ground of lack of sufficient

prejudice” alone).

19