Habeas corpus; 28 USC § 2254; Antiterrorism & Effective Death Penalty Act (AEDPA); Exhaustion of state remedies; § 2254(b); Procedural default; Cause & prejudice; Coleman v Thompson; Breach of plea agreement; Prosecutor’s sentencing recommendation; Ineffective assistance of counsel; Sixth Amendment; Strickland v Washington; Strickland prejudice; Sentencing impact

The court held that petitioner failed to show the ineffective assistance of counsel prejudice needed to excuse his procedural default of a habeas claim based on the prosecutor’s breach of his plea agreement. Petitioner pled guilty in Ohio state court after the state agreed to “make no sentencing recommendation,” but at sentencing the prosecutor urged the court to impose a “very, very substantial sentence,” and counsel did not object. The Ohio Court of Appeals held that the prosecutor breached the agreement but found no error, and the district court denied habeas relief because petitioner could not excuse his procedural default. On appeal, the court held that ineffective assistance could supply cause only if petitioner established deficient performance and prejudice. The state did not meaningfully dispute deficient performance, but petitioner had to show a “substantial, not just conceivable, likelihood of a different result.” He failed to do so because the state in the plea agreement had reserved the right to be heard at sentencing, the proper comparison was not silence by the prosecutor but the same speech minus two improper recommendation statements, and the record showed the sentencing judge relied on other grounds. The court noted the judge downplayed the prosecutor’s argument as “just argument at sentencing,” then heard from defense counsel, witnesses, and petitioner, engaged petitioner in an independent colloquy, and never mentioned the recommendation when imposing a sentence below the potential maximum. Because the improper statements “played, at best, a minor role,” petitioner did not undermine confidence in the sentence. Affirmed.