The Supreme Court in Missouri v. Frye¹ and Lafler v. Cooper² broke new ground by holding for the first time that a defendant’s right to the effective assistance of counsel under the Sixth Amendment can be violated by the loss of a favorable plea deal. Less noted, but also worthy of attention, are Lafler’s implications for federal habeas law. Four Justices protested that the Lafler decision violated the federal habeas statute. At the least, the decision expanded habeas review in unexpected ways.

The Court’s opinion in Lafler turned on the following two paragraphs of the state court decision:

The five Justices in the Lafler majority concluded that this decision was “contrary to” Strickland, because in their view it failed entirely to apply the case: “Rather than applying Strickland, the state court simply found that respondent’s rejection of the plea was knowing and voluntary. An inquiry 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.”⁷ The state court, in the majority’s view, “applie[d] a rule that contradicts the governing law set forth in [Supreme Court] cases.”⁸

By contrast, the four dissenting Justices read the second paragraph of the state court’s analysis as that court’s application of the Strickland standard. The state court’s statement that “defendant knowingly and intelligently rejected two plea offers and chose to go to trial,” the dissenters explained, “can be regarded as a denial that there was anything ‘fundamentally unfair’ about Cooper’s conviction and sentence, so that no Strickland prejudice had been shown.”⁹ Because it referenced and applied the correct test, they reasoned, the decision was not contrary to established federal law. Furthermore, this opinion was not an “unreasonable application[] of clearly established law,” the dissenters argued, “since this Court has never held that a defendant in Cooper’s position can establish Strickland prejudice.”¹⁰

Had the state court used language more easily read as rejecting Cooper’s claim under Strickland’s prejudice standard, the majority would not have had the option of characterizing the state decision as “contrary to” Strickland.¹¹ Instead, the Court would have had to explain why the state decision was an unreasonable application of Strickland. And under that standard, Cooper would have lost. It would have been reasonable, before Lafler, for a state court to decide that it was not “prejudice” under Strickland to end up with a fair trial and legal sentence after missing out on a more favorable plea deal because of counsel’s incompetence. No decision of the Supreme Court had held that the Sixth Amendment protected defendants from losing plea deals, as opposed to fair trials, sentencing proceedings, or appeals,¹² and several of the Court’s decisions had pointed in the other direction.¹³

Consider, by contrast, what would have happened had the Court decided to review a federal habeas challenge to a state decision in which the state court rejected a claim like Cooper’s, but had more clearly relied on Strickland in its reasoning and interpreted Strickland as did the Lafler dissenters. In order to grant habeas relief in such a case, the Court first would have had to conclude that the position held by four Justices (assuming Chief Justice Roberts and Justices Alito, Scalia, and Thomas would have taken the same position on the merits of the Sixth Amendment question), a unanimous Utah Supreme Court,¹⁴ and at least four court of appeals judges,¹⁵ was “unreasonable” under § 2254(d)—that is, “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.”¹⁶ Not likely.

Indeed, a petitioner who had challenged a state court decision that said virtually nothing except “denied,” after a bare citation of the correct Supreme Court precedent, would have had a much more difficult time than Cooper did convincing a federal court that the decision was “contrary to” established federal law, and would instead have had to meet Richter’s exacting “unreasonable application” standard. As the Court explained in Richter, “Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden still must be met by showing there was no reasonable basis for the state court to deny relief.”¹⁷ In short, but for the unusual combination of ambiguous reasoning by the state court and admitted incompetence in Lafler, the Supreme Court probably would have had to save its development of the constitutional regulation of representation during the plea process for a different case—an appeal of either a state postconviction decision (like Frye and Padilla v. Kentucky¹⁸) or a decision under § 2255,¹⁹ where the “unreasonable application” standard of § 2254(d) would not apply.

On its face, Lafler’s “contrary to” analysis leaves the daunting “unreasonable application” standard of Richter in place—both decisions were authored by Justice Kennedy, and the Court carefully avoided discussion of the “unreasonable application” standard. But the decision in Lafler appears to have loosened the “contrary to” standard a notch for future cases, encouraging petitioners to argue that the state court never applied the correct federal precedent (even when that precedent is cited or described), instead of arguing than that the court’s application of federal law was unreasonable. The combination of Lafler and Richter also suggests that when reviewing state court criminal opinions, “less is more”—a summary state denial will not be disturbed unless all possible (hypothetical) applications would have been unreasonable, while a merits decision accompanied by an ambiguously phrased rationale that could be construed as failing to apply the correct rule is vulnerable to attack.²⁰

The best news for prisoners bringing Frye and Lafler claims from now on, however, is that by announcing its interpretation of Strickland in a federal habeas case, the Court in Lafler necessarily applied that rule retroactively. Generally the habeas remedy is limited to violations of federal law that were clearly established at the time the state court denied relief to the petitioner; retroactive enforcement of new rules announced only later is prohibited.²¹ This means that any controversial decision for defendants announced by the Supreme Court on appeal is inevitably followed by a battle over whether that decision was clearly established by earlier Supreme Court precedent and thus is available as a basis for relief for any habeas petitioner whose state court decision postdated that earlier Supreme Court precedent. For example, when the Court in Padilla announced the qualified Sixth Amendment right to competent pre-plea advice concerning deportation, it did so in an appeal from a state postconviction decision, not in a federal habeas case.²² Lower courts soon divided over whether or not that rule was clearly established by either Strickland or Hill before the Padilla decision²³ and the Court has now agreed to resolve the issue in its upcoming term.²⁴ The same sort of litigation followed the Court’s decisions in Crawford v. Washington²⁵ and Ring v. Arizona.²⁶

By affirming the grant of habeas relief for Cooper under § 2254(d), the Court appears to have assumed that its foregone-plea doctrine was “clearly established” at least as far back as 2005, when the Michigan Court of Appeals rejected Cooper’s claim of ineffective assistance. That is undoubtedly surprising news to the divided judges of the Tenth Circuit, to the justices of the Utah Supreme Court, and to those who believed that under § 2254(d), habeas corpus would “guard against extreme malfunctions in the state criminal justice systems,” not “substitute for ordinary error correction through appeal.”²⁷ But it is welcome news for any petitioner whose foregone-plea claim was rejected by a state court in the past seven years.

Nancy J. King is the Lee S. and Charles A. Speir Professor of Law at Vanderbilt University Law School.

Preferred citation: Nancy J. King, Lafler v. Cooper and AEDPA, 122 Yale L.J. Online 29 (2012), http://yalelawjournal.org/2012/06/19/king.html.