Brandon Washington v. Attorney General of the State of Alabama, et al

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13756
____________________
BRANDON WASHINGTON,
Petitioner-Appellant,
versus
ATTORNEY GENERAL OF THE STATE
OF ALABAMA,
COMMISSIONER, ALABAMA DEPARTMENT
OF CORRECTIONS,
WARDEN, HOLMAN CORRECTIONAL FACILITY,
Respondents-Appellees.
____________________
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2 Opinion of the Court 21-13756
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:18-cv-01091-ACA-GMB
____________________
Before WILSON, J ILL PRYOR , Circuit Judges, and C ONWAY ,∗ District
Judge.
WILSON, Circuit Judge:
We grant the Attorney General of Alabama’s petition for
panel rehearing. We vacate and withdraw our previous opinion
dated July 28, 2023, 75 F.4th 1164 (11th Cir. 2023), and substitute
the following opinion.
* * *
Brandon Washington, an Alabama prisoner, appeals the dis-
trict court’s denial of his petition for a writ of habeas corpus, filed
pursuant to 28 U.S.C. § 2254. The district judge granted a Certifi-
cate of Appealability (COA) on whether trial counsel provided in-
effective assistance for failing to convey to Washington a favorable
plea offer of thirty years’ imprisonment during his capital murder
trial.
Because there is a potential justification for the Alabama
Court of Criminal Appeal’s (ACCA’s) conclusion that Washington
∗ Honorable Anne C. Conway, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
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21-13756 Opinion of the Court 3
was told about the thirty-year plea offer, that determination was
not unreasonable. Thus, we affirm.
I.
First, we will review Washington’s criminal trial and direct
appeals. Second, we will address Washington’s state habeas peti-
tion. Last, we will review Washington’s federal habeas petition.
A.
Alabama indicted Washington for one count of capital mur-
der for the robbery and killing of Justin Campbell, a worker at a
local RadioShack. Alabama sought the death penalty.
In January 2006, Washington proceeded to trial. After the
lead detective testified, Deputy District Attorney (D.A.) Mike An-
derton extended a mid-trial offer of life with parole to Washington
via Washington’s counsel, Emory Anthony. The trial court asked
D.A. Anderton about that offer and the outcome, in which he said
that he spoke with Anthony to convey “sentence of life in this
case.” D.A. Anderton and Anthony confirmed that Washington did
not want to accept the offer. Anthony stated that Washington said,
“he didn’t do it,” saying that “he is not guilty.”
The trial proceeded, and the jury found Washington guilty
of capital murder. The jury recommended the death penalty,
which the trial court accepted.
Washington appealed. The ACCA overturned his death sen-
tence and remanded the case to the trial court for resentencing,
finding it was plain error to sentence Washington without the
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4 Opinion of the Court 21-13756
benefit of a presentence investigation report. Washington v. State,
106 So. 3d 423, 432–35 (Ala. Crim. App. 2007). Again, the trial court
imposed the death penalty. Washington again appealed. This time,
the Alabama Supreme Court overturned his death sentence be-
cause the trial court plainly erred by admitting improper victim-
impact testimony. Ex parte Washington, 106 So. 3d 441, 447 (Ala.
2011).
In 2012, at the third sentencing, Alabama did not seek the
death penalty, and Washington received a life sentence without the
possibility of parole. The ACCA affirmed.
B.
In 2013, Washington filed his state habeas petition, alleging
ineffective assistance of counsel claims under Strickland v. Washing-
ton, 466 U.S. 668 (1984). Alabama moved to dismiss, arguing that
Washington’s trial counsel could not have been ineffective because
D.A. Anderton was so impressed by their performance at trial that
he offered a second mid-trial plea deal of thirty years. But Wash-
ington claimed that he did not receive the offer. Although the trial
record included the exchange between the state trial court, D.A.
Anderton, and Anthony about the life offer, there is nothing in the
record about the thirty-year plea deal. As a result, Washington
amended his petition to include trial counsel’s failure to communi-
cate the plea deal in violation of Missouri v. Frye, 566 U.S. 134 (2012).
Washington sought an evidentiary hearing on this issue. In
support, Washington submitted an affidavit from his grandmother,
Amanda Washington, who adopted Washington when he was
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21-13756 Opinion of the Court 5
thirteen years old and was paying for his criminal defense counsel.
In the affidavit, Amanda stated that she never “heard of a plea offer
for 30 years” and that “Anthony [never] mention[ed] any plea offer
other than for life in prison.” Amanda also stated that she was “con-
fident that if any other offer had been communicated to him, he
would have told me about it.”
Washington moved to take Amanda’s deposition to preserve
her statement because she was in poor health. The state habeas
court1 granted Washington’s motion unless the parties stipulated
“for the Court to consider the content of [Amanda’s] Affidavit as
true.” The parties agreed to the stipulation that Amanda’s affidavit
is true. In light of Amanda’s affidavit and the lack of discussion on
the record about this other, mid-trial plea deal, the state habeas
court ordered Anthony and D.A. Anderton to submit affidavits ad-
dressing whether Alabama extended the thirty-year plea deal dur-
ing trial.
D.A. Anderton submitted an affidavit that said Anthony was
effective at representing Washington, which led to D.A. Anderton
offering a plea agreement “that involved a number of years.” D.A.
Anderton could not “recall the number of years offered, but recol-
lect[ed] that the offer was for a term of less than a life sentence.”
Anthony submitted an affidavit that said D.A. Anderton
“made an offer of 30 years” and that Anthony “talked with Brandon
1 The same judge presided over Washington’s criminal trial, all three sen-
tencings, and state habeas proceedings.
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Washington and his Grandmother, [but] Brandon refused to accept
the plea offer.”
The state habeas court denied Washington’s petition and re-
quest for an evidentiary hearing. The court acknowledged that
Amanda’s affidavit and Washington’s petition conflicted with An-
thony’s and Anderton’s affidavits. But then the state habeas court
noted that:
Regardless of whether this offer of 30 years was
placed on the record, it is both Mr. Anderton’s and Mr.
Anthony’s recollection, that any offer of settlement
for less than Life was communicated and rejected by
the Defendant. Evidence of the Defendant’s position
at that time, is made clear from the record in this case
cited above. Therefore, this court does not find that
[Washington] has met his burden under Frye of show-
ing a “reasonable probability” that the Defendant
would have accepted a thirty year offer, or that this
Court would have accepted the plea agreement, after
the Defendant had proclaimed his innocence in the
open and very public courtroom. [Washington] has
not proven counsel’s performance ineffective, or that,
but for [counsel’s] performance, the result would have
been different under Strickland.
Washington appealed to the ACCA. For Washington’s Frye
claim, the ACCA found that:
Thus, the circuit court resolved the disputed issue,
i.e., whether a 30-year plea offer was communicated
to Washington, in the State’s favor. The circuit court
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21-13756 Opinion of the Court 7
also found, based on the affidavits as well as its own
recollection of the proceedings, that there was not a
reasonable probability that Washington would have
accepted a 30-year plea offer nor that [the trial judge]
would have approved it. Washington points to the
fact that the parties stipulated to the truth of his
grandmother’s affidavit. However, Ms. Washington’s
affidavit stated that she “never heard Mr. Anthony
mention any plea offer other than for life in prison”
and that based on her relationship with Washington,
she was “confident” that he would have told her
about any other plea offers. Thus, her testimony does
not rule out the possibility that Washington may have
chosen not to tell her about the offer.
* * *
The affidavits of Mr. Anthony and Mr. Anderton,
though contrary to Washington’s assertion in his pe-
tition, constitute sufficient evidence on which the cir-
cuit court could have based its findings, i.e., that de-
fense counsel did in fact communicate a 30-year plea
deal to Washington that he rejected. Further, the trial
court did not find Washington’s assertion that he
would have accepted [] the plea deal to be credible.
Thus, Washington failed to prove his claim that coun-
sel rendered deficient performance under Frye. A pe-
titioner must meet both prongs of Strickland, i.e., de-
ficient performance and prejudice, in order to prove a
claim that counsel was ineffective. Accordingly,
Washington failed to meet his burden of proof and
the trial court was correct to deny this claim.
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Ultimately, the ACCA affirmed the state habeas court’s denial of
Washington’s state habeas petition.
C.
Washington filed his federal habeas petition in the Northern
District of Alabama again alleging ineffective assistance of counsel
based on his counsel’s failure to relay a thirty-year plea offer to him.
A magistrate judge recommended denying Washington’s petition
on the merits, explaining that the state court’s determination that
Washington failed to establish deficient performance was reasona-
ble. Washington timely objected.
Rather than focusing on the deficient performance prong,
the district judge focused on the prejudice prong, finding that the
state court’s determination on that prong was reasonable. Wash-
ington v. Marshall, No. 2:18-CV-1091-ACA-GMB, 2021 WL 4409096,
at *1 (N.D. Ala. Sept. 27, 2021). The district court explained that
the two factual determinations—that Washington would not have
accepted the thirty-year offer and that the state court would not
have accepted the plea agreement—were reasonable. Id. at *4.
The district court granted Washington a COA on whether
trial counsel provided ineffective assistance by failing to convey to
Washington a favorable plea offer of thirty years’ imprisonment
during his capital murder trial. Id. at *5. Washington timely ap-
pealed.
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21-13756 Opinion of the Court 9
II.
Because the ACCA denied Washington’s ineffective assis-
tance of counsel claims, our review is subject to the Antiterrorism
and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254 (AEDPA).
See Lynch v. Sec’y, Fla. Dep’t of Corr., 776 F.3d 1209, 1217 (11th Cir.
2015).
Under AEDPA, a federal court can grant relief to a state pris-
oner only if he shows that the state court’s determination of his
claim resulted in a decision that was (1) “contrary to, or involved
an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or (2)
“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)(1)–(2).
Because Washington argues that the ACCA’s factual find-
ings were unreasonable, we review only under § 2254(d)(2). A
state habeas court’s findings of fact are presumed to be correct and
the petitioner bears “the burden of rebutting the presumption of
correctness by clear and convincing evidence.” Id. § 2254(e)(1).
“Even if the state court made a clearly erroneous factual de-
termination, that doesn’t necessarily mean the state court’s ‘deci-
sion’ was ‘based on’ an ‘unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.’” Pye
v. Warden, Ga. Diagnostic Prison, 50 F.4th 1025, 1035 (11th Cir. 2022)
(en banc). “Depending on the importance of the factual error to
the state court’s ultimate decision, that decision might still be
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10 Opinion of the Court 21-13756
reasonable even if some of the state court’s individual factual find-
ings were erroneous—so long as the decision, taken as a whole,
doesn’t constitute an unreasonable determination of the facts and
isn’t based on any such determination.” Id. (internal quotation
marks omitted). Ultimately, Pye requires us to look at “the reasons
for the state court’s decision” and then “consider any potential jus-
tification for those reasons.” Id. at 1036.
III.
To succeed on an ineffective assistance of counsel claim,
Washington must demonstrate: (1) that his lawyer rendered defi-
cient performance, such that he “made errors so serious that coun-
sel was not functioning as the ‘counsel’ guaranteed . . . by the Sixth
Amendment,” and (2) that these errors prejudiced the defense,
such that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 466 U.S. at 687, 694.
Washington claims that his counsel was ineffective for not
informing him about D.A. Anderton’s mid-trial plea offer.
“[D]efense counsel has the duty to communicate formal offers
from the prosecution to accept a plea on terms and conditions that
may be favorable to the accused.” Frye, 566 U.S. at 145. When an
attorney fails to convey a plea agreement, the petitioner may be
able to prove deficient performance, thus satisfying the first prong
of Strickland. See id. at 147.
Under the performance prong, Washington argues that the
ACCA unreasonably concluded that Anthony communicated the
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21-13756 Opinion of the Court 11
thirty-year plea offer to him. In its opinion, the ACCA explained
that despite the state habeas court having to take Amanda’s affida-
vit as true, the affidavits of Anthony and D.A. Anderton show that
Washington was told about the thirty-year plea offer. The ACCA
focused on the fact that Amanda’s affidavit did not “rule out the
possibility that Washington may have chosen not to tell her about
the offer.” The ACCA thus found that Washington had not shown
deficient performance.
Although we are skeptical of the ACCA’s conclusion, we are
bound by AEDPA and circuit precedent in determining whether
there was any potential justification for this conclusion. To start,
we look to three affidavits and Washington’s Rule 32 amended pe-
tition. First, D.A. Anderton’s affidavit established that the plea of-
fer was communicated to Anthony and Washington. Second, An-
thony attested that he told Washington and Amanda about the plea
offer. Both affidavits explain that Washington rejected the plea of-
fer. But in his Rule 32 amended petition, Washington said he never
received the plea offer and had he received it, he would have ac-
cepted it. Lastly, Amanda attested that she “never heard Mr. An-
thony mention any plea offer other than for life in prison.”
Amanda also stated that had Anthony communicated the plea offer
to Washington, she was confident that Washington would have
told her about it.
There are two ways to read Anthony’s affidavit. First, it
could be interpreted that Anthony told both Washington and
Amanda about the plea at the same time. But this interpretation is
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12 Opinion of the Court 21-13756
contradicted by Amanda’s affidavit because she claims to not have
heard the offer. The second interpretation is that Anthony told
Washington and Amanda separately about the plea offer, which is
also in line with the ACCA’s conclusion. While Amanda’s affidavit,
taken as true, also discounts Anthony’s narrative, it does not fore-
close the possibility that the plea offer was still communicated to
Washington without Amanda present. D.A. Anderton’s affidavit
also supports this interpretation. And while Amanda claims she is
confident Washington would have told her about the plea, as the
ACCA noted, it cannot “rule out the possibility that Washington
may have chosen not to tell her.” This is not conclusive enough to
discount Anthony and D.A. Anderton’s affidavits that Washington
was informed about the offer. Therefore, there is potential justifi-
cation for the ACCA’s conclusion, and we must defer to this inter-
pretation.
Because Washington has failed to show that the ACCA’s
conclusion that he received the thirty-year plea offer was unreason-
able, we need not address his prejudice argument.2 See Strickland,
466 U.S. at 697 (explaining that a court considering an ineffective-
ness claim need not “address both components of the inquiry if the
2 Had Washington successfully met the performance prong, he would need
to satisfy the prejudice prong of Strickland and show “a reasonable probability”
that: (1) he would have accepted the plea; (2) the prosecution would not have
withdrawn or canceled the plea; (3) the trial court would have accepted the
plea; and (4) as a result of accepting the plea, the ultimate conviction would
have been for a lesser charge or sentence than what he received. Frye, 566 U.S.
at 147; see also Lafler v. Cooper, 566 U.S. 156, 168 (2012).
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21-13756 Opinion of the Court 13
defendant makes an insufficient showing on one”); see also Conner
v. GDCP Warden, 784 F.3d 752, 766–67 (11th Cir. 2015) (following
Strickland and only addressing one prong because it disposed of the
petitioner’s claim).
IV.
Because there is a potential justification for the ACCA’s con-
clusion that Washington was told about the thirty-year plea offer,
AEDPA and our precedent require that we affirm the district
court’s order denying Washington’s habeas petition and its order
denying an evidentiary hearing.3
AFFIRMED.
3 Because Washington has not cleared the AEDPA hurdle, he cannot show
that he is entitled to an evidentiary hearing. See Madison v. Comm’r, Ala. Dep’t
of Corr., 761 F.3d 1240, 1248–49 (11th Cir. 2014).
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